PLEADING AND PRACTICE OP THE HIGH COURT OF CHANCERY, BT EDMUND ROBERT DANIELL, F. R. S., A COMMISSIONER OF THE COOET OF BANKRUPTCr. MIRD ENGLISH EDITION: WITH CONSIDERABLE ALTERATIONS AND ADDITIONS, ADAPTING THE TEXT TO THE LAST GENERAL ORDERS AND THE MOST RECENT DECISIONS OF THE COURT. BT THOMAS EMERSON HEADLAM, M. P., ONE OF HEE majesty's COUNSEL. THIRD AMERICAN EDITION: TO WHICH ARE ADDED SEVERAL ENTIRELY NEW CHAPTERS, AND COPIOUS NOTES, TOGETHER WITH AN APPENDIX OP PRECEDENTS, ADAPTING THE WORK TO AMERICAN PRACTICE IN CHANCERY, BT J. C. PERKINS. IN THEEE VOLUMES. VOL. L BOSTON: LITTLE, BROWN, AND COMPANY. 1865. T Entered according to Act of Congress, in the ygar 1865, by J. C. PERKINS, in the Clerk's Office of the District Court of the District of Massachusetts. I J T University Press : Wei ch, Bigf.i.ow, ^- Co., Cambkiuge. TO THE H O N O R A B L K CHARLES SUMNER, OF THE SENATE OF THE UNITED STATES, CCfjtg 'Stnertcan lEttttion OF DANIELL'S CHANCERY PRACTICE IS INSCRIBED, IN TESTIMONY OF REGARD FOR HIS THOROUGH JURIDICAL LEARNING, ACCOMPLISHED SCHOLARSHIP, AND GENUINE PHILANTHROPY, BT J. C. PERKINS. PREFACE TO THE THIRD AMERICAN EDITION. This third American edition of Daniell's Chancery Puactice is based upon the third English edition of the work, which was published after, and has been adapted to, the grea.t and important changes recently made by Acts of Parliament, and Rules and Gen- eral Orders 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 been enacted in England, among other provisions, that " the Court may adjudicate upon questions arising between 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 when 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 in such form as is consistent with justice in the somewhat defec- tive state of the record. But as these rules have not j'ct been vi TREFACE TO THE THIRD AMERICAN EDITION. adopted, to any considerable extent, at least in the cliancery prac- tice 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 Parties. 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, which will be found in Volume I. p. 319, is a model of brev- ity, clearness, and precision. The bill is required 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. Some of the advantages of this change are pointed out in Volume I. pp. 314, 315. 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. 380. 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 although the form of a bill is thus made more simple un- der the present English practice, all the material and substantial parts are still necessary, and are elaborately treated as heretofore in these volumes. PREFACE TO THE THIRD AMERICAN EDITION. Vll 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- poena, and the rules applicable to the service of the one are alike applicable to the service of the other. The chapters on Claims and on Special Cases, which form a part of the English system, have been retained in order to set before the American practitioner a full view of the course of chancery proceedhigs in England. 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 in 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, touchhig 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 that 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. This amended rule will be found in the Appendix, being, as there numbered. Rule 95 of the Rules for Practice for the Courts of Equity of the United States. But under this amendment testimony may still be taken in cer- tain cases in the old form, upon written interrogatories and cross- interrogatories ; and, as this latter method is still in use in some other courts in the United States, it has been thought expedient to preserve the substance of that part of the work pertaining to it. It is not known to the American editor that the English mode of taking testimony by affidavit has been adopted anywhere in this via PREFACE TO THE THIRD AMKRICAN EDITION. country. The supposed advantages of it are in part pointed out by Mr. Headlam, the English editor of Danicll, in Voluuae I. pp. 893, 905, 906, to whicli the reader is referred. The rules regulating the mode of obtaining affidavits, their form, use, and the practice in cross-examining and re-examining the wit- nesses who gave thera, which prevailed until the recent General Orders of Court, adopted in February, 1861, arc shown in Vol- ume I. pp. 893 to 898. In addition to these modes of adducing testimony, it is provided, by the Act of Parliament referred to, that " the Court may, upon the hearing of any cause, if it shall sec fit to do so, require the production and oral examination before itself of any witness or party in the cause." This power conferred upon the Court of requiring the produc- tion and oral examination of witnesses before itself has opened the way for the adoption, in the new series of General Orders of Feb- ruary, 1861, 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 substance of which will be found in the Appendix to these volumes, 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 affidavit ; 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 })arty 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 whicli 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 PREFACE TO THE THIRD AMERICAN EDITION. ix 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, tlie practice in England at the present time seems to approach the system which 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 by 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 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 Eno-- 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 iu trials at Law. By recent statute in England the office of Master in Chancery has been abolisiied, 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' Cliambers " 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 chap- ter in the former editions of Daniell relating to " Proceedings iu PREFACE TO THE THIRD AMERICAN EDITION. the Master's Office " has in substance been retained, and some additions 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 the 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 be added, generally, that in all cases where the re- cent changes in English practice have caused the omission of any part 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 in some other way ; and no part of the last English edition of Daniell has been omit- ted which bears upon the present practice in the American 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 English 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 supplied 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, which 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 se- lected generally from Tripp's and Willis's Books of Forms, and from the records of courts. PREFACE TO TEE THIRD AMERICAN EDITION. XI Part III. contains a full collection of forms of Decrees, taken partly from the last English edition of Seton, in two volumes, pub- lished in England in 1862, 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 overestimated. Upon this subject Mr. Seton remarks as follows: " The judgments of the Courts of Law are usually simple in their form ; but the de- crees 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, the forms of the Decrees and Orders by which the Court gives effect 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 par- ties cannot go beyond its express directions in their inquiries be- fore him. The forms of decrees or orders for this purpose are useful, not only in showing what may be referred, but also in giv- ing 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 the par- ticular case, and for invoking it as a plea or defence in any other suit that may be brought for the same matter. It is hoped that the consultation of the forms here presented may conduce to accuracy and uniformity in the framing of decrees. It will of XH PREFACE TO THE THIRD AMERICAN EDITION. course be understood that considerable alterations have been ne- cessary 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 other- wise be attahied. 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 these rules was adopted in January, 1842 ; the remainder are all those that have been adopted by way of amend- ment or otherwise since that time. No other full collection of them is known to exist in any other publication. These rules are in use, and form a part of the system of Equity practice in every judicial circuit of the United States, and they have been constantly cited and referred to in this work. The substance of the General Orders of February, 1861, regu- lating the mode of taking testimony to be used in Chancery suits in England, has also been added to the Appendix. With these 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. PRE FAC E TO THE THIRD ENGLISH EDITION. In completing the third edition of Daniell's Chancery Prac- tice, it has been the object of tlie Editor to adapt the original work to the present Law and Practice of the Court, and to give to the Profession such a book as the late Mr. Daniell conceived, and in great part executed. It is well known that the first edition comprised not only what comes strictly within the terms, the Practice and Procedure of the Court, but that it also extended to the Rules of Pleading, and gave much information on many branches of law administered in Chancery. It is undoubtedly true that treatises on other subjects of the Law might, with almost equal reason, have been comprised within the limits of the work, but the existing combination of contents has now become familiar to those possessed of the former editions, and is proved by the es- timation in which the work has been held to be well adapted to the wants of the Profession, so that it has not been deemed con- venient to make any material alteration in the general scheme. The great comparative simplicity of the modern practice has greatly diminished the bulk of these volumes, and that diminution might have been carried farther, were it not that many Rules and Orders of the old practice, although daily becoming of less and less frequent application, still remain in force and unrepealed, so that they could not with safety or propriety be omitted. It is well known that the idea of a general codification of the whole Statute Law has been urged upon the Government by the public, and has found favor with many of the most eminent Lawyers of the pres- ent day. It is probable, however, that difficulties, arising partly from the extent of labor required, and partly from the obstructions incident to general legislation, may indefinitely postpone the com- pletion of such an undertaking. These objections, however, do VOL. I. XIV PREFACE TO THE THIRD ENGLISH EDITION. not apply to a codificcation of the General Orders of the Court. Such a measure would, undoubtedly, give great certainty and pre- cision to the administration of justice in Equity, and lead to a diminution of labor and expense. It may be mentioned that, un- der the auspices of Lord St. Leonards, a complete Code of Orders was issued for the regulation of the Irish Court of Chancery. Immediately before the publication of this edition a new series of Orders appeared, defining certain applications which may be made in Chambers. These Orders will be found at the end of the second volume, together with a list of the various applications that have been received and entertained by the Judges in this form. The actual statutory jurisdiction to hear matters in Cliambers is so extensive, that it is doubtful what Order of the Court might not be so obtained ; consequently it has been thought that it would be convenient to the practitioners of the Court to have before them a list of those applications that in actual practice have been admit- ted and acted upon in Chambers. To complete this part of the subject, there has also been given a list of the Orders that may be obtained upon motions or petitions of course. It is hoped that, by means of this information, it will not be difficult for the practi- tioner to determine at once with respect to any application that may be necessary, whether it should be made in Chambers, whether it should be specially brought before the Court, or whether the requisite order can be obtained on motion or petition of course. CONTENTS VOLUME I. CHAPTER I. ON THE COMMENCEMENT OF A SUIT. CHAPTER II. OF THE PERSONS BY WHOM A SUIT MAY BE INSTITUTED. Section I. The Queen's Attorney-General, 6. All persons may sue in Equity, 6. In what Courts the Queen sues, 6. Where Crown not immediately concerned, 9. Informations on behalf of idiots and lunatics, 10. Of relators, when they are necessary, 13. Who may be relators, 14. Effect of death, 14. Costs of, 16. Section II. Governments of Foreign States, 18. When they may sue, 18, 19. In what form they sue, 20. Colonial Governments, 21. Section HI. Corporations, 21. How they sue, 23. Abatement by death of corporation sole, 24. Foreign corporations, 25. Joint-stock companies, how they sue, 26. Section IV. Persons out of the Jurisdiction, 28. Security for costs when required, 28. In what manner given, 32. Section V. Of Paupers, 34. Of suing in forma pauperis, 34. Executors cannot sue, 35. Motions on behalf of paupers, 39. Costs of suit, 39. Dispaupering, 40. XVI CONTENTS. CHAPTER III. — PART I. OF PERSONS WHO ARE ABSOLUTELY DISQUALIFIED FROM SUING IN EQUITY. Section I. Op the different sokts of Disqualifications, 42. Section II. Of Aliens, 42. In what cases they may sue, 44. When not enemies, 48. "What constitutes alien enemies, 49. Section HI. Persons Attainted or Convicted, 52. Effects of Attainder, 53. Effect of pardon, 54. Section IV. Of Bankrupts and Insolvent Debtors, 55. When bankrupts may sue in Law, 55, 56. When in Equity, 56, 57. Cannot sue their assignees, 58. Insolvent debtors, when they can sue, 59. Effect of bankruptcy or insolvency upon after-acquired property, 6L Suits by assignees, 64. CHAPTER III. — PART II. OF PERSONS WHO ARE DISQUALIFIED FROM SUING ALONE. Section I. Of Infants, 65. When they may sue, 65, 66. Suits on behalf of, 67. Where two or more suits are instituted, 69. Infant bound by a decree in his own suit, 71. Of giving a day to show cause, 72. Of prochein amies, 74. Costs of, 77, 78. Section IL Idiots, Lunatics, and'Persons of Weak Minds, 79. How idiots and lunatics sue, 79. How persons of weak mind sue, 83. Section III. Married Women, 84. When they can sue alone, 86. Effect of coverture upon personalty, 87. Wife's consent to pa} inent of money in Court, 90. Of the affidavit that there is no settlement, 91. When consent not necessary, 92. Effect of marriage after money reported due to a married woman, 93. Consent not taken in the case of a remainder, 94. Her examination in Court not taken as to separate estate, 95. Wife's right to a settlement distinct from her right by survivorship, 96. When it attaches, 97. CONTENTS. XVII Effect of husband's assignment, 100. On wliat property it attaches, 102. How forfeited, 103. Suits by /ernes covert, 104. Who may be prochein amies, 106. Wile's right by survivorship, 109. How defeated, 110. Effect of decree in Equity, 112. Effect of assignment upon chosen in action, 112. Effect of release upon her annuity, 116. Assignment of trusts for terms and chattels real, 119. o CHAPTER IV. OF THE PERSONS AGAINST WHOM A SUIT MAY BE INSTITUTED. Section I. Who may be Defendants to a Suit, 122. Section II. The Queen's Attorney-General, 125, Petition of right, 1 25. Attorney -general not protected from discovery, 130. Must be a defendant where rights of Crown concerned, 1 28, Where a party in cases of charities, 129. Answer of attorney-general, 130. Section III. Governments of Foreign States and Ambassadors, 131. '■ Section IV. Corporations, 133. How sued, 133. Officers of corporations made parties for discovery, 134. Answer of corporations, 136. Bank of England, &c., 137, Section V, Married Women, 140, Of separate process against, 141. Separate answer of, 142. Decree against married women, 145, When enforced against their separate estate, 146, 147. Effect of husband's death, 148. Section VI. Idiots and Lunatics, 149. Section VII. Infants, 150. Defend by guardian, 150 seq. Parol demurring, 154. Day to show cause, 156, Suits for foreclosure against infants, 158. Sale instead of foreclosure, 158. Sale of estates belonging to infants, 159. Of answers by, 161. Of admissions on behalf of, 163, Evidence against, 164, Decrees against, 166. Of showing cause against decrees, 166, 167, 6* xviii CONTENTS. Section VIII. Persons of Weak Intellect, 169. Section IX. Of Bankrupts and Insolvent Debtors, 170. In what cases defendants, 170. Effect of bankruptcy after suit commenced, 171. Section X. Persons Outlawed and Attaintkd, or Convicted of Treason or Felony, 172. Section XI. Paupers, 1 73. Defendants in forma pauperis, 173, 174. Section XII. On Persons out of the Jurisdiction of the Court, 175. When they have incidental interests, Court may proceed in their absence, 176. Practice when they become subsequently amenable, 1 73. CHAPTER V. OF PARTIES TO A SUIT. Section I. Of necessart Parties in respect of the Concurrence of their Interests with that of Plaintiff, 181. Persons having legal estate must be parties, 184. Trustees, 185. Mortgagees, 185. Covenantee, 187. Agents, 188 e< seq. Assignor of cJiose in action, or judgment, 192. Personal representative, 196. Trustees, when dispensed with, 197. Drawers of bills of exchange, 1!»'J. Bishop in suit with sequestrator, 200. Lessees, 201. Joint-tenants of legacy or mortgage money, 204. In suits to redeem, 205. In suits to foreclose, 207. In matters of account, 208. Cestui que trusts, 213. When bill on behalf of themselves and others, 214. As assignees of bankrupts and insolvents, 217. Trustees for the payment of debts, 218. Executors, 218. Persons entitled in remainder or reversion, 220. Incumbrances upon estates-tail, executors, and devisees, 222. Persons entitled to immediate estates coming in esse, 222. Persons claiming under inconsistent titles, 223. Heirs at law, 224. Persons entitled to escheat, 226. Where persons may sue on behalf of themselves and others, 229 et seq. Skction II. Of necessary Paktiks to a Suit, in respect of their Interest in REsiisTiNG the Demands of the Plaintiff. In respect of what interest, 239. Trustees, 239. CONTENTS. XIX Committees of idiots and lunatics, 241 et seq. Assignees of bankrupts and insolvents, 242. Personal i-epre!-(!ntatives, 212. Residuary legatees, 249. Pecuniary legatees, 249. Persons having specific liens, 249. Creditors of l)ankrupt or insolvent, 250. Cestuis que trust, 2.51. In foreclosure suits, 252. In suits to redeem, 254. Derivative mortgagees, 255, 256. Persons entitled to resulting trusts, 256. Owner of inheritance, 257. Tenants and occupiers, 259. Lord of the manor, 260. Persons entitled under limitations in settlement, 262, 263. Persons jointly and severally liable, 264. Principals and sureties, 266. Suits against joint-stock companies, 269. Where defendants numerous, 270. Creditors under trust deed, 273. Rule as to incumbrances, 274. Persons having prior charges, 276. Persons against whom a defendant has a remedy over, 279. Section III. Of Objections for Want of Parties, 284. How taken, 284, 285. By demurrer, 285. By plea or answer, 285, 288 et seq. Objection raised by answer under 39th order of August, 1841, 290. At the hearing, 291. Adding parties by amendment or supplemental bill, 294. Section IV. Of the Joinder of Parties, who have no interest in THE Suit. As defendants, 296. Agents, officers of corporations, arbitrators, mere witnesses, 297. Attorneys, 299. Defendants not interested may demur, 300. Misjoinder of co-plaintifis, 302. Auctioneers, 304. How misjoinder taken advantage of, 304. Where the interest of co-plaintiffs distinct and several, 305. No suit dismissed for misjoinder by recent English practice, 306, note. CHAPTER VI. OF THE BILL. Section I. O'^ the different sorts of Bills, 307, Section H. Of the Authority to file a Bill, 308. Practice where filed without authority, 310. Of obtaining previous sanction of Court, in case of infant or lunatic, 311, 312. XX CONTENTS. Section III. By whom prepared, 312. Section IV. Ok the Matter of a Bill, 314. Effect of printinji bill, 314. Table of Iocs, 31G. Form of a bill, 319. Must show plaintiffs right, 322. Interest niust be existing, 324. In what eases prerogative probate necessary, 325. Executor may file a bill before probate, 327. Of manner of stating a derivative title, 329. Of stating case against defendant, 331. Must show privity between plaintiff and defendant, 333. Prayer for relief, 334. Bill must be for the whole matter, 338. Multifariousness, 34 1 et seq. Scandal and impertinence, 353. Section V. Of the Form of a Bill, 361. Address of the bill, 361. Names and addresses of the plaintiffs, 362. Stating part, 364. Use of technical expressions, 369. Of the certainty of statements necessary in a bill, 374. Charge of confederacy, 375. Charging part, 376. Averment of jurisdiction, 377. Interrogating part, 3 78. Prayer for special relief, 382. Where plaintiff entitled to relief different from that specially prayed for, 385. Prayer for general relief, 386. Waiver of penalty or forfeiture, 390. Prayer for process, 390. Letter missive to peer, 393. Against attorney-general, 393. Injunction, 393. A^e exeat, 394. Section VI. In what Cases the Bill must be accompanied by an Affidavit, 395. Section VII. Of filing the Bill, 399. Section VIII. Of amending Bills, 402. By alteration of parties, 403. Of striking out the names of plaintiffs, 404. By order at the hearing, 405, Amendment by introduction of new facts, 407. Costs where new case made by amendment, 411. No amendment made except upon order, 412. Of amendment by order before answer, 415. Costs of amending, 416. Amending after answer, and before replication, 417. Second order to amend after answer, 419. To whom application made, 419. Amending after replication, 421. by order made at the hearing, 425. without prejudice to an injunction, 426. CONTENTS. XXI CHAPTER VII. PROCESS BY SERVICE OF A COPY OF THE BILL. Mode of effecting service, 428. of subpoena, 428 et seq., notes. CHAPTER VIII. OF PROCESS TO COMPEL APPEARANCE. Section I. Service of the copy of the bill, 428. subpoena, 428 et seq., notes. Ordinary service, 432. Upon peers, infants, married women, corporations, 436. Extraordinary service, 437. Substituted service under the general jurisdiction, 437, 438. Upon agents and factors, 439, 440. Service upon absent defendant under statutes and orders, 441. Extraordinary service upon defendants within the jurisdiction, 444. Serving notice of proceedings in the cause, 445. Section II. Proceeding where no Service of a copy of the Bill CAN BE effected, 446. Under Order of May, 1845, 448. Section III. The manner op compelling Appearance when Service HAS BEEN effected, 451. By entering appearance for the defendant, 452. By attachment, 453. Execution of attachment, 456. Of the return to an attachment, 462. Form of the return to the attachment, 463, 464. Section IV. Of compelling Appearance of Particular Defendants, 465. Attorney-general, peers, and members of parliament, 465, 466. Defendants out of the jurisdiction, 468. Infants, married women, corporations, 469. CHAPTER IX. OF PROCESS IN DEFAULT OF ANSWER. Section I. Process against unprivileged Defendants who are not SUBJECT TO ANY DISABILITY, 471. When compulsory process may commence, 472, 474. By attachment, 474, 475. Sequestration, 478. XXii CONTENTS. Section II. Process against Particular Defendants, 480,. Peers and members of Parliament, 481. Corporations, 481. Infants, 482. Married women, 482. . Where defendant of weak mind, 487. In cases of poverty, 485, 487, Section III. Of the Effect of a Contempt upon the Proceedings IN THE Cause, 488. Contemner precluded from applying to the Court, 490. Eflfect of a contempt in preventing party from being heard, 490, 491. Section IV. In what manner Contempts in Process may be cleared, ■WAIVED, OR discharged, 491. Of clearing contempt, 493. Waiver, 495. By discharge for irregularity, 495. Section V. Process by Service of a Traversing Note, 496, Efiectof the traversing note, 498. CHAPTER X. OF TAKING BILLS PRO CONTESSO, Section I. Preliminary Order, 499. Nature of the proceedings, 500. Proceedings under Statute 11 Geo. IV. & 1 Will. IV. c. 3G, 501. Where defendant has absconded before appearance, 501. Against a defendant making default after appearance, under Orderaf ot 1845, 503. Against a defendant in custody, 504. Section II. Hearing, Decree, and subsequent Proceedings, 506, When decree made absolute, 509. Practice under 1 Will. IV. c. 36, 510. Subsequent proceedings, 512. In the case of bills for discovery, 513, On claims, 513. Orders of the 22d of April, 1850, 515. Forms of claims, 526. CHAPTER XI. SPECIAL CASE, Principle of the Act, 545. How concurred in by various parties, 549, 5b&. Form of, 550. How set down for hearing, 551. Hearing of, 652. CONTENTS. XXIH CHAPTER XII. OF THE DEFENCE TO A SUIT. Different sorts of defence, 555, 556. CHAPTER XIII. OF APPEARANCE. Section I. Different sorts of appearance, 558. By husband and wife, infants, idiots, and lunatics, 558, 559. Gratis, 560. Consequences of appearance, 562. Appearance with the Registrar, 562. Substituted appearance, 563. CHAPTER XIV. DEMURRERS. Section I. Of the General Nature of Demurrers, 564. Admissions by, 565. Only extend to matters of fact, 566. Section II. Of the Different Grounds of Demurrer to Relief, 569. Whether defendant can demur to discovery without demurring to the relief, 571. To the jurisdiction, 572. That the subject-matter of the suit is within some other jurisdiction, 574. That a Court of Law is the proper tribunal, 574. That Ecclesiastical Court has jurisdiction, 577. Court of Admiralty, 578. Court of Bankruptcy, 578. That summary jurisdiction is provided by statute, 578. To the substance of the bill, 581. For matters of form, 588. To the discovery, 589. That it will expose defendant to penalty or forfeiture, 589. On the ground of professional confidence, 598. Privity between plaintiff and defendant, 605. Irregularity in the frame of the bill, 607. Section III. Op the Form of Demurrers, 610. Title of a demurrer, 610. When to part of the bill, 610, 611. Must point out the part demurred to, 611. \ Must express causes of demurrer, 611. Speaking demurrer, 612, 613. Of demurring ore temts, 614. Partial demurrer, 615. XXIV CONTENTS. Section IV. Of Filing, Setting Down, and Hearing Demurrers, 616. Of filing, within what time, 616. Diflerence between taking off the file and overruling, 618. When taken otl" the tile, 618. Of" setting down, 619. Of hearing, 621. Section V. Of the Effect of Allowing Demurrers, 623. To the whole bill, 623. Amendment of bill after demurrer, 624. Costs, 626. Section VI. Of the Effect of Overruling Demurrers, 628. To the whole bill, 628. Eifect of overruling demurrers, 628, 629. Cost, 629. CHAPTER XV. PLEAS. Section I. Of the General Nature of Pleas, 630. Affirmative pleas, 631. Negative pleas, 631. Pleas of matters impeached by the bill, 632. Pleas of matters subsequent to the bill, 632. Pleas puis darrien continuance, 633. Of double pleading, 634. Separate pleas to different parts of the bill, 636. Plea may be allowed in part only, 636. ^ Use of averments in corroboration of the plea, 637. Affirmative averments, 638. Negative averments, 639. Answer in support of plea, 640, 641. Rule with regard to answering as to documents, 646. Of answering in suhddium, 648, 649. SiccTioN II. Of the Different Grounds of Pleas. Division of pleas to relief, 649. 1. To the jurisdiction, 651. 2. To the person, 654. Of the plaintiff, 654. Of the defendant, 655. 3. To the bill, 656. Of former suit, 656. Of pending suit, 658. 4. In bar, 662. Statutes of Limitations, 663. Statute of Frauds, 681. Supported by what averments, 682. Pleas of matters of record, 686. of matters of record not in a Court of Equity, 686. of matters in pais, 689. of stated account, 690. A release, 693. CONTENTS. XXV An award, 694. An agreement, 695. Title, 09G. AVill, (i'J7. Conveyance, G97. Title, l)y what averments supported, 700. Purchase for valuable consideration, 700, 701. Form of plea, 700 ct seq. Section III. Of the Foum of Pleas, 701. Title, when accompanied by answer, 704. (iiencral recjuisites must be certain, must go to the whole case, 705. Language of averments, impertinence in, 706. Conclusion, signature by counsel, 707. Oath, 707 et seq. Section IV. Of Filing, Setting Down, and Arguing Pleas, 712. Filing, 712. Setting down, 714. Argument, 717. Ofallowing pleas, 718. Of taking issue upon the plea, 719. Costs, 719. Of saving the benefit of a plea to the hearing, 719. Of ordering a plea to stand for answer, 719, 720. Of overruling pleas, 720. Effect of, 720, 721. Of amending pleas and pleading de novo, 721, 722. CPIAPTER XVI. OF ANSWERS. Section I. General Nature of Answers, 723. Form of answer,. 724. Statement of defendant's case, 726. Insisting upon the same benefit as if defendant had demurred or pleaded, 727. Of answering the plaintifi''s case, 730. Rule that a defendant must answer fully, 733. Of the manner of answering, 736. Of diligence to obtain information, 738. As to possession of documents, 738, 739. Denial must not be by way of negative pregnant, 739. Impertinence, 741. Of the form of answer, 744. Title, 744. Formal parts, 744. Signature of defendant, 745. Oath, &c., 746 et seq. In what cases dispensed with, 748. Time for answering, 751. How sworn, 754. Of taking an answer by commission, 756. Form of commission, 757. Execution of commission, 758. VOL. I. C XXVI CONTENTS. Appointment of guardian, ad litem, 762. Whore (Iffi'iulant of unsound mind, 7G6. Where defendant a married Avoman, 7G7. Waiver of contempt by answering, 768. Section II. Of Exceptions to Answers, 768. For scandal and impertinence, 768. For insuflirient'v, 770. Argument of exceptions, 77.5. Time for answering after allowance of exceptions, 776. Supplemental answers, 781. Moving to take answer off the file, 784 et seq. Section HI. Of Disclaimers, 786. When accompanied by an answer, 788. Costs of, 790. CHAPTER XVII. OF THE JOINDER OF SEVERAL DEFENCES, 791. CHAPTER XVIII. OF MOTIONS TO DISMISS. Section I. On the Part op the Plaintiff, 795. Costs, 795. Where one of several plaintiffs moves to dismiss, 796, 797. Dismissal may be pleaded to another suit, 799. Section II. For Want of Prosecution, 799. Time when motion to be made, 799. Consequences of motion, 806, 807. Consequences of dismissal, 808, 809. Section III. When the Suit abates or becomes defective, or SHOULD NOT BE PROSECUTED, 810. When suit abates, 810. By death of sole plaintiff, 810, 811. By death of one of several co-plaintiffs, 811. When suit becomes defective, 813. Through bankruptcy of plaintiff, 813. of defendant, 814. When suit should not be prosecuted, 815. Order to stay proceedings, 815, 816. INDEX TO CASES CITED. Names of Cases referred to in these Volumes. Papre 1759 85, 86 1872 352 1480 1310 1320 1210 1426 Abbot V. Allen V. Bay ley Abbott, In re V. Johnson V. Sworder Abel V. Nodes Abell V. Heathcote V. Screech Aberdeen v. Chitty Abergavenny, Lady, venny. Lady Abergavenny, Lord, v. Powell 969, 972 V. Thomas 1137 Abraham v. Bubb Abrams v. Winshup Abrey v. Newman Acaster v. Anderson Acerro v. Petroni Acherley v. Roe Aberga- 360 938, 1734 855 1593 1336 909 585, 586, 587, 664, 665 Ackroyd v. Smithson 1505 Acraman v. Bristol Dock Co. 1771 Adair v. New River Co. 271, 272, 273 V. Winchester 193, 194 Adam v. Bohun 946 Adams v. Brown 1016, 1222, 1231, 1243, 1245, 1246, 1247, 1300 Claxton 1314 Clifton 1494 Colehurst 31 Dixon 1668 V. Evans 1089 Fisher 730, 736, 1380, 1385 Haskell 1435 Holberte 250 Hudson Co. Bank 1787 Porter 375, 590, 591, 606, 1527 V. Shelby 834 V. Stevens 501 AVood 1425 1868 811 32 V. v. V. V. V. V. V. V. V. V. Page Addleman v. Masterson 889 Adley v. Whistable Co. 1343 J^tna Ins. Co. v. Tyler 1239 African Co. v. Parish 593 Soc. V. Varick 23 Steamship Co. v. Swazey 397 Agabez v. Hartwell 1567 Fairfax 157, 1123, 1135 V. Gurney 1299 V. Resent's Canal Co., The 730, 731 585 1395 26 147 875 599 701 365, 366, 377 1563 954 105, 143 412, 427 551 1376 840 720 88, 110 1752 48,49, 569 1723, 1727 107, 884 1588 Adamson, Re, V. Hall Adderly v. Smith Agar V Aggas V. Pickerell Ahrenfeldt v. Ahrenfeldt Agnaw V. Bank of Gettysburg Aguilar v. Aguilar Aickle's Case Aiken v. Kilburne V. Smith Aikens v. Ballard Aikin v. Harrington Ails V. Sublit Ainslie v. Medlicott V. Sim Ainsworth v. Alman Airey v. Hall Alam V. Jourdan Alardes v. Campbel Albee v. Carpenter Albert, Prince, v. Strange Albretcht v. Sussman Albritton v. Bird Alcock V. Alcock Alcott V. Avery Aldborousxh, Lord, v. Burton 29 Alden v. Foster 1222 Alderman v. Tirrell 151 Alderson v. Biggars 564 V. Harris 292 Dunn 1617 Menser 1675, 1677, 1678 Thompson 1677 Westbrook 743, 1490 1401 296 Aldridge v. V. V. V. In re Alexander v. Lee V. Markham 1783 XXVllI INDEX TO CASES CITED. Alexander v. roiulleton G98, 1779 V. Wallace 840, 841 V. AVelliiigton, Duke of 15G3 Allan V. Allan 323, 324 Allegre v. Maryland Ins. Co. G94 Alien V. Allen 90, 1318, 1652 V. Anni'sley 956 V. Babcock 909 IK Harksdale 1030 V. Releher 1543 V. Blunt 1021, 1115 V. Bone 310 V. (JolVnian 383, 384 V. Crocket 192 V. Curtis 27, 134, 237, 1767 IK Foster 1018 V. Harding 1764 V. Hawley 1788 V. Hilton 1763 V. Houlden 264 V. Macplierson 577, 688 V. Miller 350, 351 V. Minor 1776 V. Montgomery R. R. Co. 345 V. Rand 889 V. Randolph 630, 686, 694 r. Smith 294, 406 V. State Bank 399, 683 V. Turner 238, 286, 288 V. AVilkins 88, 108, 110 AUender v. Trinity Church, Vestry of 1228 AUer V. Jones 562 Allfrey v. AUfrey 691, 1565 Allin y. Hall 296 Allison V, Herring 1861 Alloway Creek (S. P. 1 nhab. of) V. Strong 23 AUyn V. Davis 433 Alpha V. Payman 780 Alsager v. Johnson 738, 741 V. Rowley 332 Alsop V. Oxford, Lord 1518 Alston V. Alston 1648 V. Jones 105 Althanse v. Radde 1122 Altree v. Hordern 403, 812 xVlvanly v. Kinnaird 1274 Alvin V. Bond 1366 Ambler v. Maeon 1404 Ambrosio v. Francia 979 Anibury v. Jones 570 Amehuig v Seekamp 1736, 1770 American P^xchange Bank r. Inloes 388 Ins. Co. V. Oa kley 555,1269, 1283, 1285, 1290, 1550 Life Tiis. & Trust Co. v. Bayard 778, 1610 American Life Ins. & Trust Co. v. Sackett 886 Ames V. Ames 826 V. King 378, 1753 Amey v. Long 896 Amhurst v. King 73 7 Ammant o. New Alexander 1064 Amory v. Brodrich 820 V. Fairbanks 281 V. Fellows 889, 920, 936, 947 Arasinck v. Barklay 1803, 1812, 1817 Anderson v. Gaunter 244 V. Darcey 438 V. Dowling 1723 V. Dwver 1255 f. Foulke 1080,1281,1283, 1284, 1285, 1290 v. Gulchard 1417 V. Irvine 154, 1015 V. Lewis 438, 576 V. Strather 178,497 V. Ward 1653 V. Wells 244 V. Wilkinson 1668 V. Yates 78 Andover v. Merrimack Co. 109, 110 Andrew v. Andrew 1215 V. Wrigley 665 Andrews, In re 1399, 1862, 1863 V. Bishop 1665 V. Brown 707, 973 V. Cradock 68, 106 V. Emerson 1284, 1285 V. Farnham 856 V. Ford 1520 V. Ilobson 1652 V. Huckabee 679 V. Partington 1404 V. Powys 1757 V. ScotW 1284, 1561 V. Solomon 604 V. Sparhawk 677 V. Walters 474 V. Walton 1032 V. Williams 368 Androscoggin and Kennebec R. R. Co. V. Androscoggin R. R. Co. 489,1782,1786 Angel V. Smith 39, 1072, 1073, 1075, 1407, 1408, 1409, 1433 V. "Westcombe 570 Angell, Ex parte 1404 V. Angell 571 V. Davis 1545 V. Iladden 1200, 1659, 1660, 1667, 1674, 1676 Angerstein v. Hunt 1 784 Annesley v. Anglesey, Earl of 1684, 1686 INDEX TO CASES CITED. XXIZ Anncsley V. Ashurst 1292 Anon. Mos. 5 1504 Anon. A 111). 252-919 " 66 36, 166 Atk .489 1421 " 175 32 a 491 88, 1729 " 238 761 (1 521 1806 " 304 714 u 570 68 2 Pick. 165 909 i( 578 1421, 1422, 1426 1 P. Wms. 301 839 2 u 14 1478 2 " 68 1100, 1118 2 it 210 1801, 1802 2 " 283 1633, 1634, 2 t( 507 461 1639 3 i( 17 396,577,697] 2 " 406 938 3 (i 70 691 2 " 464 713 3 u 277 129 2 " 481 492 3 a 350 1729 Free. Ch. 331 461 3 u 511 1166 9 Price 210 1199 3 ii 524 1177 Rolls 28 June, 1828 1210 3 u 567 495,1783 " 16 Dec. 1839 3 (( 572 228 Salk. 44 66 3 u 633 951 2 " 451 23 3 u 644 299 1 Turn. & V. 117 493 3 (t G85 809, 965, 968 3 Swan. 139 201 3 (1 691 1617 2 Ventr. 361 701 1 Barb. Ch. 73 998 1 Vern. 45 1237 Barnardist 280 714 1 " 104 818 B ro. C. C. 376 1801, 1806 1 " 116, 134 795 2Ch. Ca. 161 703 1 " 117 . 767 2 n " 163 1071 1 " 131 1039 1 Clark 423 1301, 1302 1 " 187 1169 20 Dec. 1813 1101 1 " 253 923, 969 1 Desaus. 124 1 " 261 249 1 Eq. Cas. Ab. 11 1230 1 " 283 1225, 1230 1 u a 75 337 1 " 334 944, 945 2 (( (( 66 143 1 " 351 1676 2 <( i( 166 521, 268 2 " 707 111 in the Duchy, 2 Eq. Ca. 1 Ves. 380 396 Ab . 594 254 2 " 631 360 1 Freem. 127 165 2 " 661 1225 2 i ' 22, pi . 20 677 1 Ves. T. 91 820 2 ' 62 693 1 » 93 991, 1759 1 Ha^ •w. 347 1062 1 " 140 796, 1767 1 Hen. & Munf. 476 507 1 " 410 35 1 Hill S. Car. 251, 258, 259 1 " 453 1287 Hopkins 27 782 1 " 484 661 (( 101 1709 2 " 332 141, 143 1 John 143 1701 2 » 335 1273 2 J. & W. 533 745 2 " 336 1279 L I. Hall, 16 July, 1816, 3 Ves. 515 1424 M. S. 4 " 656 360 IM. &C. 78 354 5 " 148 1285 1 Mad. 157 621 5 " 656 360,490 3 (( 246 1326 6 " 287 1073, 1408, 1409, 3 a 494 1285 1433, 1434 4 (( 252 357 6 " 288 1075 4 u 271 992 6 Ves. 453 1284 4 u 273 1486 6 Ves. 512 1291 4 i( 463 903, 917 6 " 673 955 4 (( 494 1286 8 » 69 1527 6 u 10 1758 9 " 221 619, 626 9 Mo d. 43 1758 9 " 341 1142 XX s INDEX TO CASES CITED. Anon. 10 Yes. 287 31 11 " IfiO 1452 11 " 170 lOGO 12 " 4 1413 14 " 207 524 15 " 174 493, 804 15 " 299 955 19 " 321 956 2 V. & B. 553 765 3 " 94 980 AnsiloU V. AnsflcU 1107, 1108 Ansoni r. Towijood 1275, 1276 Anstriitlier v. Adair 92 Anthony <». Dunlop 1727 V. Let'twich 365 V. Rogers 1237 Antrobus v. E. I. Co. 1096 Appleby V. Duke 172, 789 Appk'ton V. Ilorton 841 Aptliorp iK Comstock 1087, 1091, 1093, 1097, 1100, 1107, 1108, 1111, 1381, 1788 ArchboU v. Burrell 818 Archdeacon v. Bowes 1239, 1410 Archer v. Hudson 1548 V. Mosse 688 Archer v. Slater 873 Archibald i: Means 285 Arcot, Nabob of, u. East India Co. 651, 652, 683, 705, 722 Arden i\ Arden 677 Arendell i'. Blockwell 209, 406 Argenbrlght o. Campbell 90 Arglasse, Earl of, v. Muschamp 840 Argo, The 924 Armistead v. Boznaan 826 V. Durham 412 Ai'mitage v. Wadsworth G32, 652 Arniiter v. Swanton 1677 Armsliy v. Wood 885 Armstrongs. Armstrong 1106, 1115 V. Athens Co. 350 V. Beaty 1060 V. Blake 1477 V. Burrows 935 V. Campbell 586, 668, 1259, 1260 V. Cooper 991 V. Hickman 1777 V. Lear 1398 V. Pratt 1648 V. Scott 843 V. Stockham 1837 V. Storer 1469, 1499 V. Lane 1489 Arnold v. Blencowe 246 V. Foot 1244 V. Heaford 632 V. Voorhies 155 Arnot ?'. Biscoc 842 Arnoux v. Steinbrenncr 796, 1462 Arrowsmith v. Hill 495 Arthur v. Hughes 243 Arundel v. Arundel 568 V. lilackwell 287 Arundell, Ladv, v. Phipps 1727, 1756 Lord, V. Pitt 971 Asbee v. Shipley 972, 1602 Ascough V. Townshend 1780 Ash V. Daggy 643 Ashbee r. Cowell 1290 Ashl)urnhani r. Thompson 1492 Ashby V. Ashby 115 V. Kiger 1544 V. Power 866 Ashley v. Baillie 699 V. Sewell 231, 1336 Ashmead v. Colby 244, 289, 1231, 1247, 1300, 1320, 1322 Ashmorc v. Evans 682 Ash ton V. Ashton 912 V. Atlantic Bank 213, 215 V. Jackson 580 Ash worth v. Wrigley 1802 Askew V. Peddie 1043 V. Poulterer's Co, 17 79 V. Townsend 1622, 1780 Astley V. Fountain 283, 286, 719 V. Powis 1047, 1259 Aston V. Aston 1700, 1738 V. Curzon 702 V. Exeter, Lord 606 y. Galloway 317,401 Astread v. Round 143 At hoi, Earl of, v. Derby, Earl of 1078 Atkins V. Chilson 1742, 1760, 1762 V. Hatton 726 Atkinson v. Bedel 1818 V. Farmer 1281 V. Flint 485 V. Han way 608, 618 V. Henshaw 245, 1417, 1757 V. Leonard 1801, 1802, 1803, 1804, 1807, 1808, 1813, 1817 V. Manks 991, 1011, 1540, 1659,1660, 1661,1669,1670, 1671, 1675,1676,1677, 1679 V. Parker 1604 Atkvns V. Willoughby De Brook, Lord 1726 Atlantic De Laine Co. v. Tredick 1755 Atlantic Lis. Co. u. Lemar 628 Atlas Bank v. Nahaiit P>ank 797, 1072, 1432, 1436, 1715 Attaquin v. Fish 1736 Att'y-Gen. v. 11 V. Ashburnham, Lord 13 V, Aspinwall 1563 INDEX TO CASES CITED. XXXI Att'y-Gcn. V. Bank of Columbia 1425, 1428 12 16 244 14 16 Att'y-Gcn. . of 1485 1023, 1391 1721 10 10, 1849 405, 805 229 V. I)iukcr V. Bolton V. Bowers V. Broreton V. Brewer's Co., The V. Brooke 1555, 1558 V. Brown 10, 269, 569, 627 IK Browne 608 V. Burch 1527 V. C ar r i n gton , Lor (1 1854 r. Carte 16 V. Carver 500, 506 V. Chester, Corp V. Clapham V. Cleaver V. Clergy Soc. ?). Compton V. Cooper V. Cauthwaite V. Coventry, Mayor of 1075, 1076 V. Croft 11 V. Dal ton 1854 U.Day 682,1282,1425,1615 V. Dew 962 V. Duplessis 6, 591,592,596 V. Dyson 1263 V. East India Co. 13 V. Eastlake 1744 r. East Retford 136,1495 V. Federal St. Meet- ing-IIouse 12 V. Forbes 1741 V. Foster 1598, 1599, 1608 V. Fox 13 f. Fullerton 1137,1139 V. Gale 138 V. Gal way. Mayor of 1427, 1455 r. Gaunt 256 V. Gower 701 V. Green 256 r. Haberdasher's Co. 15, 1464, 1512 V. Hamilton 157, 1123 V. Harvey 1884 V. Heath 15 V. Heelis 234 V. Hill 291 V. Huidley 572 V. Hobert 1492, 1494 V. Howe 11 V. Hudson 747 V. Hullett 8 V. Hunter 1777 r. Hurst 1503,1505,1612 V. Iron Monjrer's Co. 16 V. V. V. V. V. V. V, V. V. V. V. V. V. V. V. V. V. V. V. V, V. V. V. V. V. V. V. V. V. V. V. V. V. V. V. V. V. V. V. V. V. V. V. V. V. Jackson Jcanes Johnson Kcr Kintrston Knight Laniljuth Lawes 273, 287 387 740 16 7, 127 18 162 1507 Life and F. Ins. Co. 1436 London, City of 8, 127, 420, 1488 Lubbock 1219 Lueas 595, 730 Malin 755 Marlborough, Duke of 1739 Merchant Tail. Co. 350 Merrimack Manuf. Co. 12 Middleton 14 Montgomery 1097, 1112, 1113 IMoses MuUay !Munro Nethercoat Nichol 1741, 1742, Norwood Oglander Owen Parker Parkhurst Paruther Pearson Plumtree 344 101 1548 971 1373 1732 1483 1483 16 11 849 561, 879 15 Plvmouth, Mayor of, 7 Poole, Corp. of 287, 344, 584, 627 Ray 869 Rees 739 East Retford, Bail, of 739 Reynolds 595 Richards 1740 Rickards 356 Ryder 688 St. Aubyn (Sir J.) 7 Scott 1584 Shefiield, &c., Co. 1 740, 1742, 1744 Shelly 273 Sherborne Grammar School, Gov. of 1850 V. Shrewsbury, Corp. of 10, 1849 V. Southampton, May- or. of 1740 V. Stamford, Earl of. 434 V. Sudell 590 V. Sutton 687 xxxu INDEX TO CASES CITED. Att'y-Gen. V. Tarrington V. Taylor 227 16 V. Tliompson V. Tlniraall 1379 855 V. Tonna 1512 V. Turner 1629 V. Twisdon 196, 292 V. Tyler 11, 15, 18 V. U. K. Elec. Tel. Co. 1740 V. Utica Ins, Co. 1773 V. Vernon 6 V. Vigor 1438 V. Vincent 390 V. A'ivian 13 V. Whatoly 14 V. Whitely 1452 V. Whorwood 382 V. Wigan, Mayor, &c., of 1033 V. Wilson 23, 134, 901 V. Winchelsea 1503, 1505 V. AVvburgh 273 V. Wynne 196, 242 V. Wolrich 11, 80 t;. Wright 12,1702 Attwood V. 408 U.Banks 1730,1761 V. Hawkins 286 Atwater v. Kinman 395 V. Townsend 46 Atwell V. Fowles 1252 Atwill V. Ferrett 570, 581, 610 Atwin V. Perkins 695 Aubrey v. Iloper 1515 Auditor, The, v. Johnson 192 Austin V. Nicholas 865 Avery v. Fitch 338 V. Kellogg 352, 353 V. Osborn 1495 Axers v. Musselman 327 Ayer v. Ayer 104 Ayers v. Valentine 426 V. Wright 192, 296, 350 Ayletv. Dodd 1761 Aylett V. Ashton 147 Ayliffe v. Murray 1688 Aymer v. Gault 1674, 1677 B. Babbitt v. Savoy 1766 Babcock v. Perry 1269 Baby v. Dubois 49, 51, 568 Backhouse v. Middleton 868 Bacon v. Childs 1020 i\ Clerk , 1259 V. Griffith 403, 504 V. Jones 1096, 1748, 1778 Bacon u. Spottiswoodc 1778 Baddeley v. Curwen 735 V. Harding 32 Badeau v. Tyler 1667 Badger v. Titcomb 338, 339 Badgley v. Bruce 1139 Baggott V. Henry 772 Baglehole, Ex parte 48 Bagot V. BaTOt 1546, 1809 Bagshaw v. Eastern Counties Rail- way Co. 27,1766 Bagshaw v. Newton 1503 Bagshawe, Re 1867 Bailey i). 30th July, 1805 1830 V. Bailey 496, 871 V. Benton 384 t). Birkenhead Railway Co. 341 ?;. Blanchard 1225,1229 V. Bruton 305 V. Burton 336 V. Crane 671 V. Devereaux 495 V. Forbes 785 V. Gundry 363, 364 ~ ■ 216, 240 788 1260 630 287 205, 255, 285 1000 322, 335 1096 1312 736 223 1428 892, 940 165, 756, 907 643, 671 1267 1747, 1749, 1778 625, 1412 171, 1447 234 250 374, 691, 692 1259 Bainbrijige v. Blair 1591 Baines u. McGee 318 Baker v. Biddle 374, 580, 665, 691, 692 V. Booker 567 V. Cole 937 V. Dumaresque 1808 V. Hart 1097, 1112, 1113 V. Harwood 211 V. Henderson 1857 V. Holmes 444 V. Keen 501 V. Inglee V. Lambert V. Leal V. Le Roy V. Morgan V. Myrick V. Robinson V. Ryder V. Sewell V. Todd V. Wilson V. Worrall Bailie v. Bailie Bailis V. Cochran BaiUie v. Jackson V. Sibbald Baily v. Baily V. Taylor Balnbridge v. Baddeley V. Blair V. Burton V. Pinhorn V. AVilcocks INDEX TO CASKS CITED. XXXlll Baker u. King 1104,1106,1107 V. Mellisli 301 , G08, 609, 623, 1 76D V. Morijan 1274 V. Morris 1252 V. rritfhard 690, 598 V. Taylor 1768 V. Whiting 586, 668, 1544, 1552, 1559, 1605, 1627 t). Wind 1470,14 71 Balbv y. Williams 356 Bcilch V. Smith 1395 V. Tucker 1094 V. Wastall 9, 1 73 Balchen v. Crawford 1675 Balcom V. N. York Life Ins. & Trust Company 769, 702, 703 Baldwin v. Baldwin 103 Baldwin v. Lawrence 238 Baldwin v. Salters 1004 Balguy V. Chorley 1040 Ball V. Ball 1139 V. Coutts 103 V. Etches 494 V. Mannin 80 V. Montgomery 101, 103, 1491 V. OUver 245, 1417, 1757 Ballard v. White 1321 V. Catling 38 Ballentine v. Beall 229 Ballou V. Hopkinton 1743 V. Wood 1732 Balls V. Strutt 56 Bally V. Kennick 740 V. Williams 742 Baltimore & Ohio R. R. Co. v. Wheeling, City of 134, 136, 746, 843, 1767 Baltzel V. Hall 506 Bampton v. Birchall 585, 635 Banbury i'. 1527 Peerage 847 Bancroft v. Wardour 607 V. Wentworth 594 Banert v. Day 962 Bangs w. Hull 585,671 V. Strong 641 Banister v. W^ay 179, 226, 1281 Bank v. Dugan 641 V. Rose 797 Bank of Alexandria v. Patton 161 Bank of Augusta v. Earle 25 Bank of Bellows Falls v. Rutland & Burlington R. R. Co. 579, 580, 649, 1727 Bank Comm. v. Bank of Buffalo 309 Bank of Edwardsville v. Simpson 25 Bank of England v. Lunn 139 V. Moffatt 139 V. Morice 1717 Rank of England v. Parsons 139 Bank of Marietta v. Pindall 25 Bank of Michigan v. Williams 25, 686 Bank of Mobile v. Planters' & Mer- chants' Bank 834, 1836 Bank of Monroe v. Schermerhorn 1787 liaiik of Niagara, Matter of 1436 Bank of Ogdensburg v. Arnold 281. 1408, 1410 Bank of Ontario v. Strong 435 Bank of Orleans o. Skinner 22, 398, 399, 717, 769 Bank of St. Mary v. St. John 506 Bank of Scotland v. Ker 25 Bank of U. S. w. Magill 1252 U.Ritchie 68,150,1015 V. Shultz 365 V. Wcisiger 1027 V. White 1628 Bank of Utica v. Mersercau 601, 604, 733, 734, 736, 768 Bank of Virginia v. Craig 1400 Bank of Washtenaw v. Montgom- ery 25 Bank of Waterville v. W. W. Bank 26 Bank, The, v. Trapier 1231 Bankhart v. Houghton 1740 Bankier v. Poole 440 Banks v. Anderson 1627 V. Broth 1087, 1088 V. Judah 586 V. Walker 346 Bannatyne v. Leader 1384 Banter v. Calhoon 151 Banyster v. Trussell 172 Baptist Association v. Hart 1848 Barber, In re 750, 766 V. Barber 666 1-. Hunter , 366 V. Slade 109 Barbour v. Watts 865 V. Whitlock 209 Barbridge i'. Robinson 1391 Barclay t?. Bowen 1556 V. Brown 1020, 1570 V. Russell 18, 21, 466 Bardwell v. Ames 1595, 1743 Barfleld v. Kelly 879 y. Nicholson 1760 Barham v. Lingman 807 Baring v. Moore 1267 V. Nash 201, 1136 Barker, In re 1856 V. Baker 1089 V. Burch 332 V. Dacie 569, 575 V. Dixie 84G V. Gregory 1259 V. Harper 1275 XXXIV INDEX TO CASES CITED. Barker v. Lidwell t;. Ray Smark V. Swain V. AVardle V. Westmoreland V. Wyld Barkhampstead v. Parsons Barklcy t'. Reay, Lord Barlee v. Barlee Barnard's Case, Lord Barnard, lie Barnard v. Bartholomew V. Darling V. Dowling V. Walls Barned v. Laing Barnes v. Abram V. Dickinson V. Racster Barnesley v. Powell Baructt v. iMontgoniery V. Noble V. Spencer ■V. Watson V. Woods Barney v. Luckett Barron v. Grillard Barraque v. Manuel Barrell v. Benjamin V. Joy Barret v. Oliver Barrett v. Buck V. Gaines V. Pardow V. Pearson V. Sargeant V. Watson Barribeare v. Brant Barrick v. Buba Barringer v. Andrews Barriiio:ton v. Tristam Barritt v. Barritt Barron v. Guillard r. Lancefield V. Richards Barrow, Jn re 28 571, 706, nil 818 ICGD 1498, 1513 1123 999 23 561, 1415 106 1738 1867 1251, 1257 755 754 1727 1809 966 425 1469 688 433 1376 1707 921 318 1766 1616 335 46 1259 161 1008 1005 949 1763 850 890, 938 1615 50 395 1503 751 144 1469 1759 1872 Bartlett v. Pickersgill Bartley v. Bartley Barton v. Cooke V. Latour V. Tattcrsall V. Whitconibe Barwell v. Corbin V. Parker Basanquet v. Marsham Bass V. Bass Bassard v. Lester V. Rhinelander 691, 880, 1548, 1639 Barry v. Barry V. Cave V. Jackson Barstow v. Smith Bartee v. Tompkins Bartle v. Wilkin Bartlett i;. Gale V. Gillard V. Marshall V. Parks 1038 484 688 609 351 1467, 1468 750, 771, 843 835, 836 1257 183, 298 190 1390 1505, 1507 1277 667 450, 829 7& 1257, 1258 411 665 798 Bassett v. Company 708,711,717,1719, 1720 V. Johnson 1086, 1099, 1100, 1106, nil V. Nosworthy 701 Bassevi v. Serra 1507 Bassford v. Blakesley 1381 Bateman v. Cooke 756 u. Murray 1763 V. Willoe 1724 Bates V. Bonner 1286, 1288 V. Dandy 1118, 1119, 1120, 1121 V. Delavan 864, 1029 V. Franklin 1029 V. Graves 1112 V. Loomis 1702 V. Wheeler 388 Bath, Earl, v. Abney 118 V. Bradford, Earl of 1258, 1318 Lord, w. Sherwin 1766,1779 Bathe w v. Needham 797 Bathurst, Lord, w. Burden 1761 Batley v. Freeman 1393 Batre v. Auze 449 Batterson v. Ferguson 133 Batt V. Birch 972 Batten v. Earnley 1255 Battle V. Griffin I486 Baugh V. Ramsey 882 V. Reed 1503 Bawtree v. Watson 1861 Bax V. Whitbread 1024 Baxter v. Abbott 849 V. Portsmouth, Earl of 80 Baycs v. Hogg 44 Bayless v. Orne 1766 Bay ley, In re 1872 V. Adams 643, 720 V. De Walkiers 746 V. Edwards 658 V. Leominster, Corp. of 1763 V. Mansell 1264 V. Powell 1491 Baylies v. Payson 1024 Baynham v. Guy's Hospital 1763 Beach v. Beach 608 V. Bradley 242 INDEX TO CASES CITED. XXXV Beach v. Fulton Bank 779, 969, 1544 V. Shaw 1019 V. White 192 Beaden v. King 670 Beal V. Gibson 1774, 1786 Beale v. Sieveley 1005 V. Thompson 9G3 Beals V. Guernsey 1104 Bean v. Heath 1776 V. ]\Ior. Giani 1708 Bellenger v. People, The 591 Belloat V. Morse 327 Bellona Co.'s Case 1769 Bellows V. Stone 409, 640, 827, 856, 857 Belmore v. Anderson 920, 947, 951 Belsham v. Percival 1120, 1623 Belton V. Williams 193 Bemis v. Upham 1743 Benbow v. Davies 508 Bencon v. Cutter 1629 Bencraft v. Rich 1828 Belfield v. Solomons 57, 58, 60, 332, 333 Benham v. Rowe 1236, 1245 Benison v. Wortley 152 Bennet v. Runyon 839 Bennett v. Bennett 122 V. Chudleigh 36, 174 V. College 1457 V. CoUey 1415 V. Edwards 1018 V. Going 1491, 1498 V. Hamill 153, 154, 159, 1274 V. Lee 162, 163, 167, 168, 1639 V. Leigh 163 V. Neale 1094 V. Oliver 1564 V. Wade 387, 577, 688 V. Walker 597, 698 V. Williams 1802 V. Winter 1041, 1044 Bennington Iron Co. v. Campbell 415, 777 Benson v. Glastenbury 1825 XXXVl INDEX TO CASES CITED. Benson v. Hadfiold 314 r. Le Koy 885, 1161, 1717 V. Olive 866 V. Yornon 1038 Bent V. Reynolds 1706 I'. Young 588 Bontloy r. Cowman 787 r. Robinson 468, 482, 763 Benton i\ Gibson 1761) Benzien o. Loveless 423 Berestbrd, Ex parte 102 V. Driver 1380 Berkeley r. Rvder 783 Berks and Dauphin Co. v. jSIyers 23 Bernal v. Donnegal, Manpis of 1807 Bernard v. Papineaux 962 Berne, City of, v. England, Bank of 18, 19 Bcrners v. Hillett 1466 Bernett v. Taylor 872, 1102 Berney v. Chambers 779 V. Eyre 1117, 1464, 1465 V. Sewell 1407, 1410, 1411, 1416 Bernie v. Vandever 1145 Berrington v. Evans 1208 Berry, i?e 1709 V. Attorney-General 1541 V. Rogers 149, 581 Berryhill v. McKee 1007, 1543 V. Wells 1254 Bertie v. Falkland, Lord 1622 Bertine v. Yarian 586, 665, 670 Best V. Stampford 119 Betagh v. Concannon 1820 Bethel v. Wilson 209 Bethia v. INItKay 798 Bethune v. Farebrother 189, 190 Bettes V. Dana 1620 Betteson v. Farringdon 1385 Betty V. Taylor 840 Be vans ??. Dingman's Turnpike 135 Beverlev v. Miller 151 Bifk V. Matley 1300 V. Motley 434, 491, 1314 Biekerton v. Burrell 191 Hickfbrd v. Chalker 516 V. Skewes 1689, 1745 Bi.-kham v. Cross 1018 Biekly v. Doddington 331 Bickiiell y. Field 1731 V. Gough 637, 680 Biddis V. James 859 Biddulph V. Camoys, Lord 442 V. Fitzgerald 1143 Bifield V. Tavlor 213, 215 Bigelow V. Bigelow 586, 668, 1821 V. Hartford Bridge Co. 1741 V. Winsor 1011 Bigg V. Wall 988 CO TJiixas i\ Koims Bignal ik Brereton liignall V. Atkins Bignold V. Audland liill V. Cuerton Billage v. Southee Billing V. Brooksbank V. Flight Billingslea v. Gilbert Billout V. Morse Bilton V. Bennett Bincks V. Bincks Binfield v. Lambert Binford v. Dommett V. Bawden Bingham v. Binsham 1670, 1671 1255 1609 398, 1662 228 336 872 594, 631, 637 748, 749, 1786 408 503 1596 872 1112 90 1724 V. Cabot 322, 363, 377, 580 V. Clanmoris, Lady 1223, 1225 V. Yomans 423, 749 Binkerhoff t). Brown 1290 Binks V. Binks 1596, 1614 Binney v. Plumley 23 Binney's Case 22, 133, 134, 460, 742, 745, 1767 Binninojton v. Harwood 1473 Birce v. Bletchley 371 Birch V. Corbin 139 Birchett v. Boiling 1060 Bird V. Butler 872 V. Kerr 1110 V. Littlchales 1071, 1072, 1074 Birdsall v. Hewlett 1252, 1506 Birdsong v. Birdsong 183, 286, 1564, 1586 Birkenhead Docks, Trustees of, v. Laird 1002 Biscoe V. Brett 806 V. The Land Bank, The Undertakers of 272 V. Waring 364 V. Wilks 1481 Bishop, Ex parte 1522 V. Chichester 726 V. Church 9 72 V. Godfrey 1047 V. Little 670 V. Williams 1142 V. Wills 744 Bitzen v. Hahen 1252 Blacky. Beasley 1099 V. Black 630 V. Blakeley 1260, 1494 V. Colnaghi 808 V. Crcishton 1830 V. Lamb 845, 1085, 1086, 1090, 1091, 1096, 1097, 1U98, 1099, 1101, 1102, 1103,1111, 1114, 1116 v. Stacey 1742 INDEX TO CASES CITED. xxxvu Blackeney v. Dufaur 30 Blackbeard v. Lindigren 1281 Blackburn v. Jepsoii 24 V. Warwick 1250 Blackburnc y. Gregsoii 1115 V. Stace 1823 Blacker v. Phepoe 852, 853 Blacklock I'. Barnes 1238 Blackmorc, Re 1871, 1872 V. Barker 1279 V. (ilamorgansbire Ca- nal Co. 17G7 V. Smith 1814 Blacknall u. Combs 1724 Blacknani v. Sutton Coldfield, The Warden and Soc. of, 232 Blackwell v. Blackwell 249, 408 Blagden v. Bradbear 682 Blagrave v. Routh 1872 V. Watts 1064 Blain v. Agar 26, 234 Blair v. Boags Township School District 1773 V. Bromley 670 V. Drew 666 Blaisdell v. Stevens 442, 770 Blake, Re 1803 U.Blake 1707,1819,1820 V. Foster 1639 V. Hey ward 1000, 1048 V. Hinkle 365 V. Jones 198 V. Veysie 857 V. Young 1247 Blakeney v. Dufaur 1420, 1424, 1425 V. Ferguson 839 Blanchard v. Cawthorne 1422 V. Drew 814 Bland?;. Lamb 37, 1542 Blaney v. Ilendrics 1257 V. Sargeant 847 V. Wyatt 294 Blann v. Bell 1552 Blanton v. Brackett 841 Blatch V. Archer 458 Blaydes v. Calvert 1805 Bleeker v. Bingham 582 Bleight V. McIUroy 628 Blenkarne v. Jennens 699 Blenkinsopp v. Blenkinsopp 442, 443 Blennerhassett v. Day 6 70 Blevins v. Sympson 1491, 1493 Blewitt V. Blewitt 328 V. Thomas 696 Bligh V. Benson 606 V. Darnley, Earl 1047 V. Trcdgett 106 Blight V. Banks 839, 1462 Bliss V. Collins Blodget V. Ilobart Blois V. JJlois Bloodgood V. Clark V. Kane Blount V. Bestland V. 15urrow V. Garew Blower v. ^lorrets Jiloxton V. Drewit Bluck V. Elliot Bluett V. Jessop Blundell V. Gladstone Blunden v. Desart Blunt V. Clitherow V. Gee Boardman v. Jackson Boddam v. lliley Boddington v. Woodley Boddy r. Kent Bodicoate v. Steers Bodkin v. Fitzpatrick Biinkehorne v. Feast VOL. I. 1465 805 838 1448 1411, 142G, 1564, 1690, 1706 643 88, 108 220, 1227, 1490 573, 608 1618 879 687 1205, 1499 877, 928 1858 1438 1139 1226, 1227 1257 40, 415, 427 814, 1713 1122 187 Bodmin, Lady, v. Vendebendy 701 Bodwell V. Wilcox ' 1701 Boehm v. De Tastet 492 Boeve v. Skipwith 1G09 Bogardus v. Trinity Church 633, 640, 642, 648, 679, 716, 717, 718, 721 Bogle V. Bogle 1659 Boglehn v. Hooker 763 Bogue V. Houston 1 748 Bftgwell V. Elliot 871 Boigerard v. Wall 183 Boiling V. Turner 79 Bollinger v. Chouteau 1243, 1244 Bolster t'. Catterlin 1737 Bolte V. Van Rooten 892, 940 Bolton V. • 1665 V. Bolton 411 V. Bull 1 748 V. Flourney 1091 V. Gardner 37, 641, 642, 643, 694, 707, 737, 792, 1542 V. Liverpool, The Corp. of 600, 606, 1383 Bolton, Duke, v. Williams, 1660, 16 76 Bonaparte v. Camden &c. E. E. Co. 44 Bond V. Conway 107 V. Graham 243, 244 V. Hendricks 285, 391 V. Hopkins 585 V. Simmons 107 Bonham v. Leigh 945 V. Newcomb 1022 Bonlthorn v. Hockmore 1245 Bonner v. Johnston 1824, 1825 XXXVlll INDEX TO CASES CITED. Bonner v. Wortliington and Pink 1814, 1816 Bonus i;. Fhuk 1167,1168 Boon IK Collingwood 1817 Boone v. Chiles 365, 597, 702 Boosey v. Purday 43 Booth I'. Booth 818, 834 r. DriscoU 1744 V. Lcycester 1732 V. Penscr 1312 V. Rich 158 V. Stamper 348, 622 Boothby v. Walker 1824 Bootle v. Blundell 871, 872, 873, 1026, 1102, 1107. 1111, 1119, 1120 Borah v. Arc-hei-s 201, 1132, 1133 Boreham r. liignall 1502 Borland v. Thomson 1723, 1744 Borough V. AVhichcote 865 Borrowseale v. Tuttle 1011 Bosanquet v. jMarsliam 607 Bosley v. McKim 574 V. Susquehanna Canal 1782 Bostock V. N. Staff. By. 1740 Boston V. Bovlston 244 Iron Co. V. King 1231, 1243, 1247, 1249 Water Power Co. v. Bos- ton and Worcester R R. 573, 1741 Boston and Lowell R. R. Co. v. S. andL. R. R. Co. 1725,1740 Bostwick, Matter of 1404, 1694, 1 709 Bosvil V. Brandner 1 1 9 r. Brandon 104,116 Boswell's Case 1734 Boteler v. AUington 596 Botifear v. AVeyman 665, 691 Botsford t;. Burr 190,377 Bottorf r. Conner 574, 629 Botts V. Pat ton 242 Bouche V. Ryan 68, 74 Bouchier v. Dillon 1578 Bouck V. Wilber 695 Bouldin ?;. Baltimore 1768 Bound V. Wells 495 Boura v. AYhight 156 V. Wright 1136 Bourdieu v. Trial 952 Bourdillon v. Adair 92, 93 V. AUeyne 952 Bourke v. Kelly 1286 Bousmaker, Ex parte 50 Bowden v. Binford 95 V. Hodge 946, 947 Bowdler v. Bowdler 1692 Bowen v. Cross 402, 778, 781 V. Fairman 1821 v.hUoy 70,294,406,411,777 V. Price 378, 473 Bower v. Cooper 1083 V. Swadlin 693 Bowers v. Smith 162, 1024 Bowcrsbank v. Cossidaer 1430 Bowes V. Heaps 1467 Bowie V. Minter 304, 305 Bowker v. Nickson 1306, 1315 Bowles V. Drayton 1454 V. Parsons 1075 V. Stewart 299 Bowman v. Bill 1427 V. Burnley 305 V. Marshall 720 V. Middleton 1087 V. Olieilly 856 V. Wathen 586 Bowser v. Colby 878 V. Hughes 59, 60 Bowsher v. Watkins 196, 332 Bowyer v. Bright 1463 V. Pritchard 1677 Boyd V. Boyd 67 V. Eby 850 V. Hamilton 1087 V. Heinzelman 819 V. Hoyt 305, 347, 352, 584 V. Jagger 824 V. Mills 629, 770 V. Murry 1413 V. Vauderkemp 296, 1556, 1629 Bovdeu V. Partridge 185, 215 Boyer v. Blackwell 1287 V. Boyer 1463 V. Covert 246, 289 Boyle, He 1872 V. Hardy 1251 Boynton v. Barstow 318 V. Boynton 1588, 1616 V. Dyer 1453 Boys V. jMorijan 1557 Boyse v. Cockell 773, 822 Bozon V. BoUand 561, 1857, 1860 Brace v. Blick 879 V. Harrington 194 V. Marlborough, Duchess of 1470, 1499 V. IMarlborough, Duke of 702 V. Ormond 1156, 1507 V. Taylor 337 Bracebridge v. Buckley 1764 Bracey, In re 1875 V. Sandiford 77 Bracken v. Kennedy 713 Brackenbury v. Brackenbury 1042 Brackett v. Tillotsou 1235 Bradford v. Allen 1462 V. Felder 408, 1588 Bradish v. Gibbs 96, 145 Bradley v. iVmidon _ 69 INDEX TO CASES CITED. XXXIX Bradley v. Cliase 1477 V. Emerson 84 V. Ilitcbcoek 14C8 V. McKcnna 116 V. IMorijan 192 V. Rieliardson 1726 V. Root 886 V. Snyder 1241 Bradshaw v. Bradshaw 892, 896 , 903, 932, 960, 1824, 1830 V. Outram 281 Bradstock v. Whatley 290 Bradstreet v. Baldwin 924 V. Supervisors &c. 44 Bradt v. Kirkpatrick 336 , 337 , 583 Bradwell i'. Weeks 4G, 4 7, 49 ,559 Brady v. McKosker 299, 1624 V. Waldron 1735 V. Weeks 357 Braliam v. Bowes 1684 Brainbrigge v. Baddeley 412 418, 1873 Braithwaite v. Robinson 225 Braker v. Devereaux 201 Braman v. AV'ilkinson 1648 Bramley v. Teal 1825 Brampton v. Barker 702 Bramwell v. Ilalcombe 1751 Branch v. Broker 211 V. Dawson 780 Branch Turnp. Co. v. Yuba Branden v. Cabiness 1737 194 Brandish v. Gee 99C 1, 991 Brandlyn v. Ord 68^ ., 698 Brandon v. Brandon 1437 V. Cabiness 853 V. Curling 50 V. Jsesbitt 48 V. Sands 562 , 570 Brandred v. Patterson Machine Shop Brandreth v. Lance 1 750, 398 1752 Branger v. Chevalier 1314 Branham v. Commonwealth 1233 Brard v. Ackerman 601 Brasbridge v. WoodroSe 1502 Brasher v. Cortlandt 284 -, 559 V. Macey 201, 1734 V. Van Cortlandt 79 149 ,183, 391 Brattle v. Waterman 421 Braxton v. Lee 1015 V. Morris 1560 V. Willing 1092 Bray v. Akers V. Fromont 142 211 V. Hine 1860 V. Thatcher 351 V. Woodran 988 Bravbrooke, Lord, y. Inskip 1217 Brayton y. Smith 1815,1817 Brazier v. Fortune 593 BrearclifT u. Dorrington 1800 Breckenridge v. Brooks 575, 1245, 1259, 1260 V. Churchill 586 Breed v. Pratt 849 Breeding v. Finley 28 Breedlover v. Nicolet 43 Brevort v. McJimsey 1777 Breeze v. English 415, 416, 1008 Brenan v. Preston 889, 900, 1449 Brend v. Brend 1022 Brent v. Bold 1087, 1088 Brereton v. Gamut 703, 720 Bressenden v. Decreets 280, 286, 288, 424 Brewer J7. Bowman 1630 V. Connecticut 991, 1010, 1540 i\ Tyringham 1257 Brewster v. Bours 1099 V. Lunt 334 Breyfogle v. Beckley 890, 938 Brice v. Mallett 657 Brickhouse u. Hunter 1226,1248 Bridge v. Bridge 971, 974 V. Burns 983 V. Eddows 1092 V. Johnson 1584 Bridger v. Penfold 1371 Bridges v. Canfield 28 V. McKenna 105 V. Mitchell 666 Bridgett v. Hamer 216 Bridson f. Benecke 1748 Briesch w. McCauley 1723 Brigss V. French 1 725 V. Richmond 281 V. Shaw 1726 V. Smith 1744 V. Wilson 671 Brigham v. Wheeler 1397 Brink v. Morton 1099 Brinkerhoff I'. Brown 614,998 V. Lansing 1471, 1479, 1776 V. Thalmer 282 Brinley v, Avery 46 Bristed v. Wilkins 1052, 1799 Bristol v. Morgan 187 Bristow V. Towers 48 Bristowe v. Needhara 488, 1436, 1439 Britton v. Britton 91 V. Johnson 1010 Broadhurst v. TunniclifF Brocken v. Martin Brocker v. Hamilton Brocksopp V. Barnes 1032 817 1801 1232 xl INDEX TO CASES CITED. Brockwav v. Copp 734, 1055 V. Wells 1471 Brodcrepp v. Cole 593 Brotlorick r. Hroderick 1724 Brodic r. Barry 1414 r. Bolton 1513 r. St. Paul 1482 r. Skelton 448 Bromfield i: Chichester 492 Bromhead i: Smith 455, 494 Bromley, Jn re 1865 r. Holland 192, 240, 576, 1777 r. Smith 235 Brompton, Incumbent of. Ex parte 1855 Bronson r. K. K. Co. 1010 Brook, I^ord, v. Hertford, Lord 71, 72 Brooke r. 1216 V. Hewitt 565 Brooker r. Collier 1265 Brookes r. Burt 176 Brookfield r. Bradlev 1042 Brookfield v. Williams 1 130, 1 131, 1 132 Brookland v. Golding 1466 Brooklyn White Lead Co. v. Masury 1753, 1754 Brookman, Tie 1710 Brooks V. Barrett 849 V. Brooks 105, 140 V. Byam 737, 770, 1458, 1461, 1484 V. Cannon 865 r. Dias 1736 V. Gibbons 613 V. Gillis 841 V. Greathed 1073, 1075, 1408, 1409, 1433 V. McKean 890, 938 V. Mead 827 f. Reynolds 229,1202,1718 V. Smith 1286 V. Snaith 1286 V. Taylor 864 V. Whitworth, Lord 344 Brooksbank v. Smith 670 Brophy V. Holme 1556 Brotherton v. Hatt 699 Brown r. Armistead 1015 V. Barham 1259 V. Beel 1657 V. Brown 843 V. Bruce 744 V. Burke 1091 V.Byrne 1142 V. Chambers 853, 872 V. Child 956, 1887 V. Clark 81 V. Commonwealth 1728 V. Cuffc 1072 V. Dawson 40 V. De Tastet 211, 1231, 1248, 1324 V. Douthwaite 249 V. Edsall 571 V. Frost 1283, 1717 V. Gilmer 1288 V. Greenly 956 r. Haff 1769,1801,1802,1804, 1805 V. ILimond 683 V. Hayward 145 V. Higgs 1554 V. Home 500 V. How 1493 V. Keating 1702 V. Kelty 1824 V. Lake 780 V. Lannan 871 V. Lawer 1404 V. Lee 752 V. Lockhart 990 V. IVIcDonald 383 V. IMathews 1560 V. jNIinis 19 V. Payson 599 V. Perkins 694, 1248, 1378 V. Pitman 246 V. Pringle 1840 V. Ricketts 209, 218 , 232 , 421, 422, 716 ,828 ,830, 1703 V. Robertson 1701 1712 V. Simons 1244 V. Stanton 443 V. Stewart 1789 V. Story 36, 173 V. Troup 1659 V. Turner 1131 V. Vandvke 134, 374, 691, 692, 1767 V.Wallace 1080,1274,1281 V. Warner 1622 V. Weatherby 225 V. Winans 1789 V. Wincoop 1000 V. Wood 448, 872 Browne, In re 1872 V. Blount 177 V. Blunt 1409 V. Groombridge 504 V. Lockhart 1460 V. Poyntz 819 V. Smith 995 V. Vermuden 933 Brownell v. Brownell 374, 692 V. Curtis 571, 590, 714 Browning, In re 1281 V. Barker 1181 V.Barton 1181 v. Bettis 1411 INDEX TO CASES CITED. xli Browning v. Watkins 16G9 Brownsword v. Edwards 572, 594, 613, 640 Bruce v. Allen 617 Bruen v. Crane 192 Bruniley v. Westchester Co. IMaruif. Soc. 135, 136, 746 Brundage v. Goodfellow 1310 BrundliniT p. Humble 1837 Brundred v. Tatterson Machine Co. 1768 Bruner v. Planters' Bank 1723 Brunkor, Ex parte 1801, 1803, 1810 Brunswick, Duke of, v. Hanover, The Kiniz of 131 Brurton v. Rutland 1 1 23 Bryan v. Blythe 349, 351, 353, 584 V. Bryan 90 i\ Cormick 1408, 1433 V. McGee 244 V. Parker 1096 V. Reed 1005 i>. Rooks 1008 Bryant v. Busk 1482 V. Puckett 87, 668 V. Russell 230, 1461 V. Spruill 114, 116, 333, 567 Brydges v. BranfiU 939 V. Hatch 954 Brymer v. Buchanan 1678 Bryne, In re 175 Bryson v. Nichols 1233 V. Petty 394, 1055, 1560, 1810 Hvystock, Ex parte 1401 Buchanan v. Curry 49 V. Deshon 44 V. Green way 1222 Buchard v. Boyce 209, 236 Buck r. Fawcett 1541 V. Lodge 1824 V. ISIcCaughtry 365 Buckingham v. Buckingham 1779 V. Peddicord 503 Buckley v. Cooke 899 V. Corse 417 V. Little 51 Buckly V. Buckeridge 78 Buckmaster v. Harrop 1564 Bucknor v. Forker 1629 Buden v. Dore 605, 606 Buel v. Street 1543 Buffalow V. Buffalow 353 Buffum's Case 1045, 1072, 1785, 1786 Buford V. Rucker Bugbee v. Sargent Bugrjr V. Franklin Bulkeley v. Dunbar Bulkley v. Van AVyck d* 746, 1000 248, 285 115 299, 787 161, 749, 765, 771,843 Bull V. Bell 615 V. Bull 333 V. Gi'iHin 745 V. Loveland 896 BuUen v. INlichel 871, 1102 V. Ovey 1781 Buller V. Gardiner 1702 V. Rasleigh 466 Bullock, Ex parte V. Boyd 52 692 i\ Brown 1648 V. Chapman V. Dodds 1724 52,53 V. Gordon 1091 V. INIenzies 100 r. Perkins 411 V. Richardson 594 Buhner v. Allison 1276 Buloid V. Miller 1544 Bulstrode v. Bradley 1221 Bumpus V. Platner 698, 1759 Bunbury v. Bunbury 603, 604, 1731 Buntin v. James 44 V. Lagow 666 Bunyan v. Mortimer 142, 435, 483 Burch V. Scott 1030, 1036, 1044 Burden v. Dean 116 V. INIcEImoyle V. Stein 778 1744 Burdett v. Rockley 1073, 1078, 1079 Burditt V. Grew 673, 706 Burdoin v. Sheton 1020 Burge V. Brutten Burgess v. Burgess 310 1754 V. Gregory V. Sturgess 29, 31 519 V. Wheats 1653 Burgh r. Kenny Burk V. Brown 1458 690 Burke v. Crosbie 1274 V. Jones 667 Burkett v. Randall 1094 V. Spray 1508, 1526 Burlington Bank v. Cotton 433 Burn V. Burn 941, 952 Burnaby v. Griffin 1482 Burne v. Breen 1465 Burnell v. WeUington, Duke of 1812, 1815 Burnet ?•. Chetwood 1751 V. Claghry 1235 z;. Theobald 103 7 Burnett r. Anderson 1665, 1670 V. Craig 1721 V. Sanders 1527 Burnham r. Kempton 1742, 1743, 1744, 1745 Burnley r. Jeffersonville 739 Burns f. Fay 1225 xlii INDEX TO CASES CITED. Burns r. Ilobbs 597 r. Ilobdt 708 V. Lyiule 395 Burr V. Burton 769 c. Sherwood 111 Burrall v. Eames 2 r. Kainetoaux 0.17, 751 Burras i'. Lokcr 74!) Burrell v. Andrews 964 r. Nicholson 1382 Burroughs v. Booth 924 V. Elton 364, 1206 t'. McNeill 1299 V. Oakley 1823, 1824 Burrow ?'. Greenouj,fh 682 Burrowes r. Lock 1478 Burrows i: Jamereau 688 Burt i: Brown 54 r. Dennet 240 Burton r. Dickinson 665 V. Fort 1461 V. IMaloon 1692 V. ]\Iattons 501 I'. Neville 606 V. Scott 849 Bury V. Phillpot 848, 1092 Bush, In re 1863 V. Bush 721 U.Madeira 1630,1641 V. Sheldon 871 Bushby r. Littlefiekl 841 V. Munday 1731 Bushel I'. Commonwealth Ins. Co. 134 Bushell 0. Bushell 142, 469, 483, 1800 Byde v. IMasterman Byfield v. Trovis Byington v. Wood Byne v. Potter Byng V. Clark Byrch, In re Byrne, //( re V. Byrne V. Frese V. llomaine Bvron, Lord, v. Johnson C. Cabecn v. Gordon Cabell V. INIigginson Caddick v. Masson Cadle V. Fowle Cadosan v. Kennett Bushett V. Spray Bushnell v. Hartford Busney v. Spear Butchardt r. Dresser Bute, Marquis of, r. shire Canal Co. Butler v. Butler V. Catlin V. Cooper V. Cotting V. Duncomb V. O'Hair V. llashfield v. Spann Butlin V. blaster Butman v. Ritchie Buttcrworth v. Bailey ?'. Robinson Button I'. Price Buttrick r. Holden Butts V. Genung Buxton V. James V. Lister r. Sidebothan Byara v. Stevens 359, 741 1555 1305, 1321 988 752 1865, 1871 175 1595, 1766 808, 970, 971 408 1770, 1773 1545 1776 213 1031 Glamorgan- 1384 408, 1806 590 448 731 1259 1004 466 343 1114, 1119 962 409 1751 1585 842 292 , 294 396 62 1552 1758 Caermarthen, Marquis of, v. Haw- son Caffrey v. Darby Cahill V. Shepherd Cairnes v. Chubert V. Fisher 1070, 1073, 1078 1493 50, 943 1415 502, 503, 512 Caldwell V. Albany, Mayor &c. of 1570, 1571 V. Giles V. Hawkins V. Knott V. Leiber V. TajTgart V. Vanvlissingen 9; 279 1744, 1749 1483 1120 43 Calkins v. Evans Call V. Ewing Callaghan v. Rochfort Callender v. Colgrove Caller v. Dade V. Shields Callow V. Mince Galium V. Emanuel Calmady v. Calmady Calverly v. Phelps V. Williams Calvert v. Godfrey Calvit V. Markham Calwell V. Boyer Cambridge Water Works v. Som- erville Dyeing &c. Co. Cameron v. Abbott V. Cameron Canmiack v. Johnson Cammann v. Traphagan Cammeycr v. United German Lutheran Churches Camp r. Bates 1259,1732, V. Simon V. Waring 1030 285 574 1480 182 1748 1000 327 9, 981 1223 327 1630, 1638 1182 281 1123, 1136 213, 215 1482 160, 1274 374, 692 838 349 366 441 1407 687 305 1735 840 423 INDEX TO CASES CITED. xliii Campbell v. V. V. Andrews Baker Braxton V. Browne V. V. V. Campbell French .ir,3 1282, \2M 1819 1588, 1594 GD, 854, 1008 92 V. V. V. V. Gardner 1283, 1285, 1289, 129(», 1291 Harding 1840 V. Mackay 343, 344, 345, 34G, 566, 567 Macomb 282,1240 Mesier 1027 Morrison 389, 398, 1717, 1769 r. Price 1638 V. Scott 1747 V. Scougall 914, 928 V. Sheldon 196, -244, 396, 580 1677, 1678 244 196, 244, 580 215 C95 859 187, 1000 V. Solomons V. Tousey V. Wallace V. Watson V. Western Canal Co. v. R. R. Co. Canby v. Ridgeway Candler v Carey r. Iloxoy 289 V. Smith 402, 403, 410, 426 V. Voorhieg 1 773 Cai'leton v. Leigliton CO V. I^'Estrange 1424 I'. Smith 1158 Carlisle, Countess of, v. Berkley, Lord 1428 Carlisle, Countess of, v. Stevenson 1 736, 1767 Carlos r. Brook 980 Carmichael v. Bowder 349 V. Carmichael 690 V. Trustees of School Lands 26 Carnac v. Grant 28 Carnatic, Nabob of the, v. E. L Co. 18,19 Carneal v. Banks 1022 V. Day 507 V. Sthreshley 607, 559 V. Wilson 731 Carnochan i'. Christie 1650 Carow V. Mowatt 1594, 1596 Carpenter r. Aldrich 31 V. GrofF 1 1 05 V. Providence Ins. Co. 1239 Pettit 407, 1321, 1594, 1595, 1606 Cane 167; 1860 1070 1678 ' 1753 1525 1132 1384 1525 1257 1340 1015, 1035 285, 838 Martin V. Smith Canfield v. Sterling Canham v. Jones Cannell v. Beeby Canning v. Canning Cannock i'. Jauncey Cannon v. Beely V. Bejrors V. Evans V. Hemphill V. Norton Canterbury, Viscount, v. Attorney- General Cape V. Adams Cape Fear Bank v. Stinemetz Capehart v. Huey Capel V. Butler V. McCollum Capell V. Landano Cape Sable Co.'s Case Capon V. Miles Cappeau v. Baker Carbonell v. Bessell Cardigan, Earl of, v. Montague, Sir Edward 1 1 24, 1 1 25, 1 1 35 Cardwell v. Cheatham 700 Carew, Ex parte 1871 V. Johnston 375, 995 Carey i;. Hatch 312 V. Hillhouse 285 513, 125 89 25 1463 561 366 1007 1787 689 937 945 Carpmael i\ Powys Carr r. Applej-ard V. Callaghan V, Eastbrooke ?'. Liglehart V. Taylor Carrick v. Young Carrington v. Brents V. Carnock V. Holly V. Jones Lord, V Pell Carrol r. Carroll v. Connel Parran V. Parsons V. Roosevelt V. Waring Carron Iron Co. v Carte r. Ball 11. Hodgkin Carter, In re 603 965 242 101, 103, 1838 583 88, 102 988 151, 1045, 1048 867 798, 799 1110 Payne 872, 1102 884, 997 1232 1634 751 343 630, 663, 708 Maclaren 1725 223, 727 V. Balfour V. Bennett V. Bosanquet V. Campbell V. Carter I'. Colerain, Lord V. Draper V. Jones V. Privatt V. Sleeper V. Torrance 1097 1441 344 1788 785 1115 99 1226 915, 936 185 1007 841 505, 1019 xliv INDEX TO CASES CITED. Carter r. Ignited Ins. Co. 103 Carteret, Lord, v. rascball 119, 121, 1G14 Cartlunv r. Barclay 09O Cartwright v. Clark 1G49, IGfjO, 1(151, lOo.'K IGrjG V. Green 144, 590, 591 r. Ilaleloy 135,650 Carutliers v. Hartstield 1776 Carver, 7;; re 18G2 Carwardine v. Wesbdalc 7G3 Carwich i'. Young 817, 820 Cary r. Faden 1751, 1752 Casberd v. Attorney-General 127 Casborne r. Barbam 1100, 1101 Casby c. WickHtle 364 Case V. Abeel 1171, 1172, 1173, 1307 r. M. R. Co. 1740 r. Potter 1225 V. Towle 1565 Casey v. Goodinge 1821 Casb V. Belcher 788, 790 Casbell r. Kellv 305 Casjiiday r. INIcDaniel 185, 240, 285 Cason V. Round 702 Caster v. "Wood 778 Castleman r. Veitcb 573, 608 Castleton, Lord, v. Fansbaw 6G8 Castor r. Goetze 1381 Gates V. Loftus 686 V. "Woodson 435 Catbcart v. Hewson 28 V. Lewis 195 Catborall r. Davies 1675 Catlen r. Hamed 1474, 1500 Catoy. Easley 151,1015 Caton V. Willis 374 Cator r. Butler 225 r. Dcwar 1013 Catterall i'. Purchase 1643 Cauley v. Lawson 348 Cauty V. Iloulditch 1 706 Cave V. Cork 1619 V. Saunders 665 Cavendish v. Fleming 1232 V. Mercer 1311 Caverley v. Phelp _ 252 Cawtborne v. Cbalie 613 Cayce v. Powell 84 Cazenone v. Cutler 1241, 1242, 1245 Cecil V. Salisbury, Lord 163 Central Manuf. Co. r. Ilartsborne 21, 429, 448 Chace v. Holmes 749 Cbadoin V. Magec 1726 Cbaffcn r. Wills 1190 Chaffers r. Baker 1700 Chalfaut v. IMonroc 165 Chalk V. Saunders 516 Chalk r. Thompson 1171 V. Wvatt 1743 Challnor v. iMurhall 325 ChalnuM-s r. Chambers 383, 384 Chanibcrlain c. Agar 682 V. Knapp 597 Chambcrlyne r. Dunimer 1738 Chambers v. Bap. Edu. Soc. 21 V. Chalmers 365 V. Chambers 683 V. Gold win 186, 254, 255, 693, 1411 V. Thompson 591 Chambless r. Taber 1723 Chambliss v. Smitli 838 Chambre v. Maude 519 Chamley v. Dunsany, Lord 839, 865 Champ V. Wood 1453 Champernowne v. Scott 1301, 1858 Champion, Ex parte 1257, 1259 V. Brown 283 Champlin v. New York, Corp. of 746 V. Parish 248, 324 Champneys v. Buchan 422 Chancey v. May 26, 232 Chandler r. Brainard 927 V. Goodrich 1130 r. Pettit 1320 Chandos, ])uke of, v. Talbot 116 Chapeaurouge v. Carteaux 1812 Chapin r. Coleman 643, 839 Chaplin i\ Chaplin 154 V. Cooper 1 781 Chapline v. Beatty 747 V. Bettv 1787 V. ChapHne 1080, 1275 V. Moore 1404 Chapman v. Beach 1419 V. Butler 586 V. Chapman 386 V. Fowler 1265, 1292 V. Hamilton 2S5, 286, 287 V. Hammersley 1543 r. Smith 1096, 1246 Chappedelaine r. Decheuaux 689, 692 ChappcU r. Davidson 1772 I'. Purday 1013 V. Purdy 1545 Charitable Asso. v. Baldwin 23 Charles v. Rowley 685 Charles River Bridae v. "Warren Bridge 963, 982^ 1054, 1085, 1090, 1091, 1095, 1733, 1740 Charlton v. Allen 521 Charman ?•. Charman 1039 Cha.rt(ir, Ex parte 1165,1325 Chase's Case 608, 615, 641, 642, 792, 1062, 1140, 1406, 1407 Chase v. Dunham 419, 426 INDEX TO CASES CITED. xlv Chase v. Holmes 423 V. Lincoln 871 V. Locherman 1489 V. ISIanhardt 838, 17G9, 1819 V. Palmer 88, 322 Chassaing v. Partridge 147 Chauncey v. Fcnhoiilet 595, 596 V. Taliourden 595, 596 Chaytor v. Trinity College 233 Chedwortli, Lord, v. Edwards 1756 Cheeseman v. Thome 1122 Cheminant v. De la Cour 946 Chennel v. Churchman 1777 Chennell v. UnrUn 1157, 1162, 1163, 1164, 1165, 1171, 1190, 1294 Cherokee Nation v. Georgia 123 Cherry v. Belcher 87, 88, 841 V. Monro 296 Chesapeake & Ohio Co. v. Young 1736 Chesapeake & Ohio Canal Co. v. B. & O, R. R. Co. 1786,1787 Ciieshire Iron Works v. Gay 228 Chess V. Chess 1 1 05 Chesterfield, Earl of, v. Bond 433 Cheswell v. Chapman 1130 Chetham v. Audley, Lord 1 234 V. Grugeon 1284, 1288 Chetwood V. Brittan 1788 Chetwynd v. Lyndon 590, 592, 610 Chew r. Bank of Baltimore 352 Chicago &c. R. R. Co. v. Frary 1766 Chichester v. Hunter 811 Chicot V. Lequesne 298, 1684 Chilcote, fn re 1856 Child V. Brabson 492 V. Frederick 1655 V. Gibson 686 V. Godolphin 681 Childers w. Deane 1260 Childress v. Hurt 1279, 1290 Childs V. Horr 826, 998 Chiles V. Boon 449, 496 Chillingworth v. Chillingworth 1149, 1273 Chilton V. Pardee 1451 Chinn v. Caldwell 250 Chipman v. Hartford, City of 292 Chippendale *;. Tomlinson 56 Chisholm v. Georgia, State of 123 Chissum v. Uewes 1500, 1828 Chitty V. Parker 128 V. Selwyn 945 Chivers v. Bax 979 Cholmley v. Oxford, Countess of 277, 1017 Cholmondeley v. Clinton 196, 208, 696, 1235, 1755 Cholmondeley, Lord, v. Clinton, Lord 205,"222, 227, 263, 405, 409, 585 Cholmondely, Earl, v. Oxford, Earl 954 Chowick V. Dinnes 1622 V. Uismes 1 780 Christ's Coll. Cam. v. Widrington 840 Christ's Hospital (Governors of) v. Attorney-General 129 Christ's Hospital v. Granger 420 Christian v. Foster 1506 V. I'aylor 738 ?;. AVren 1658 Christie, In re 1403, 1690, 1 709 V. Craigh 1759 Christmas v. Campbell 1 787 Christopher v. ■ ■ 1688 V. Sparke 282 Christy v. Christy 502 Chuck w. Cremer 1713 Church V. Crewe 1045 V. Ide 336 V. Marsh 38, 39, 1698 Churton r. Douglass 1 755 Chusan v. Bayne 850 Chute V. Dacre, Lady 779 Citv Bank v. Bana?/e 1401 Darrefy. Eden 1260 Darrington v. Borland 151, 1276 Darst ('. Brockway 1755, 1772 Darston v. Oxford, Earl of, 1226 Dart V. Palmer 293 Darthey v. Clemens 365 Dartmouth, Lady, v. Roberts 866 Darwent v. Walton 176, 268, 289, 605 Darwin v. Clark 1375 Dashiell v. Attorney-General 1848 Dashwood v. Bulkely, Lord 1564 Daub V. Martin 1254 Daubeny v. Coghlan 1324 Daubigiiy v. Davallor 49, 51 Dausman v. Hooe 1644 Davenport v. Davenport 36, 74, 76, 174, 1224 r. Lamson 1130 V. Snilfen 617, 751 Davis V. Angel V. Bluck Davers v. Davers 882 David V. Frowd 1201,1203 V. Williams 1196 V. Cooper & Brassintoh 269 V. Foly 1600 V. Hastings, Marchioness 425, 495, 1084 Davies v. 709, 710 V. Calcraft 1444 V. Davies 209, 837, 854, 1623, 1709 V. Dodd 199 V. Getty 1722 Davile v. Peacock 1775 1024 1612 V. Chantis 1540 V. Cripps 359, 769 V. Davies 503,1066,1072,1322, 1364 V. Dendey 1245 V. Dowhng 159 V. Dysart, Earl of, 1862 V. Estey 244 V. Hall 581, 684 V. Hammond 478 V. Hooper 287 V. Leo 1735, 1770 V. Logan 1140 v. McNeil 1517 V. Mapes 731, 734, 735, 737, 738 V. Marlborough, The Duke of, 1408, 1410, 1422, 1423, 1431, 1432, 1446 r. May 1 24 9 V. Miller 351 V.Newton 88,89,96,99,116 V. Phelps 1472 V. Reed 1736,1737,1741,1774 V. Reid 961 V. Sigourney 874 V. Simpson 296 V. Smith 665 V. Spurling 693, 836 V. Stevens 840 V. Waters 602 Davison, Matter of 1404 V. Attorney-General 130 V. Schermerhorn 680, 707 V.White 1139 209, 349, 507, 685, 1030 Dawes v. Benn 223 V. Head 244 V. Howard 1404 Dawson, In re 1399 V. Dawson 374, 689, 690, 698, 1802 V. Ellis 1461 Davoe v. Fanning lii INDEX TO CASES CITED. Dawson v. Parrot 1492 iJ. Prinocps 1717 V. Rayncs 1446, 1448 V. Sadler 578, 1722 V. Seriven 1027, 1048 V. Yatea 1421 Day I'. Anindell 701 V. Croft 1417, 1418, 1435, 17IJ8 V. Ciiiniiiiiigs 192 V. Drake 258 V. Essex Co. Bank 134 V. Kerr 151 V. IMerry 1 738 V. Snee 1805 Dayroll r. Champnets 1735 Deacon v. Deacon 78!) r. Richmond 86 Deakin's Case 460 Dealty *'. Murphy 365 Dean v. Abel 1019 r. Attorney-General 130 V. Dean 681, 682 V. Williams 1260 Dearin v. Fitzpatrick 116 Dearman v. Wyche 677, 680, 681, 1036 Deas V. Harvie 606 V. Thome 194, 279 Dease v. Moody 841 Deaven v. Reynolds 1280 De Balinhard v. Bullock 1339 De Baun v New York 1766 Debazin v. Debazin 1818 De Beaumont, Ex parte 1837 Debenhani v. Ox 1478 De Burgh v. Clarke 1570 De Carriere v. De Calonne 46, 1800, 1802, 1807, 1808 Decarters v. La Farge 991, 1559 Decker v. Caskey 1116, 1119 V. Coskey 1087 V. Miller 1488, 1490, 1821 Decoster v. La Farge 1540 Decouche v. Savetier 668 Decks V. Stanhope 236 Deere i\ Guest 1736 Deerhurst v. Jones 1003 !'. St. Albans, Duke of 1555 Dcerlev v. iMazarine, Duchess of 140 D»-famc & Blakenev, Re 1873 Dcffliss r. Goldschmit 1840 Dc. Fueheres, the Baron, v. Dawes 757, 1170 De (leneve v. Hannam 804 De Groot v. Jay 1345, 1433 Dchon V. Foster 1046, 1725, 1727, 1731 Dclal)erc r. Norwood 277 Delafield c. Anderson 345 V. Colden 1489 V. State of Illinois 19 Delahey v. INIcConnel Delancey v. Seymour Delancy v. Wallis De la Torre v. Bern ales De la Yergne ?'. Kvertson De la A'^iija v. Vianna Dell V. Hale 1555 1087 438 778 230 46 571 Delondre v. Shaw 43, 303, 304, 323 Deloraine v. Brown 584, 586, 1629 Delorn i\ Ilollingsworth 329 De Louis v. Meek 333 Delves v. Bagot, Lord 911 De Manneville v. De Manneville 73, 1060, 1395, 1809 Demaree v. Driskill 826 Demarest v. Wyncoop 145, 597, 664, 698, 14 75 Deming v. Remington 214 V. Smith 702 De Minquitz v. Udney 713 De Montmorency v. Devereux 374, 692 De Mott V. Starkey 702 Den i'. Farley 924 V. Tellers 1266 V. Wood 963 Deniston ?>. Little 291,387,409,856,857 Dennis v. Dennis 374 V. Riley 1527 Dennison v. Bassford 504, 745, 749, 785 V. Lee 1257 Denny v. Gilman 586 Denson v. Denson 1633 Dent V. Turpin 1754 V. Warden 411 Denton v. Denton 1802, 1806, 1808, 1809 V. Jackson 920, 972 Denys v. Locock 640, 642, 644, 645, 681 De Peyster v. Golden 877 D.Graves 1783,1787 Derby v. Aucram 1078 Earl of, V. Athol, Duke of 579, 636, 652, 653 Derbyshire R. R. Co. v. Bainbrigge 1051 V. Serrell 1723 De Rivafinoli v. Corsetti 1801, 1804, 1805 Desborough v. Harris 564, 1660, 1662 V. Rawlins 603 Desbrow v. Crommie 1069, 1071 Deshon v. Eaton 671 V. Foster 1715 Despau r. Swindle 569 Desplaces v. Goris 353, 734, 742 Desprez y. Mitchell 1121 De Tastet v. Bordenave 1095, 1114, 1116 V. Sharp 683 Detillen v. Gale 1158, 1466, 1470, 1471, 1476 Devaucene v. Devaucene 1072, 1083 INDEX TO CASES CITED. liii Devaynes v. Robinson 1386 Devereaux v. Cooper 736, 737 Devie v. Brownlovv, Lord 66 1, 1118 Devoe V. Ithaca & Oswego R. R. Co. 1068 Devonsher v. Newenham 262, 610, 628, 1765, 1779 Dew r. Clark 956,1417 Dewdnoy, Ex parte 585, 667, 671 De AVc'cvor v. Rochport 1405 De Whelpdalo v. Milburn 257 De Witt V. Haves 1637 De Wolf V. De Wolf 211, 230, 287 V. Johnson 170, 885 V. Lonn; 842 V. Mailett 284, 436 Dexter v. Arnold 214, 282, 664, 772, 838, 1020, 1030, 1044, 1238, 1239, 1240, 1320, 1322,1556, 1627, 1628, 1630, 1631, 1633, 1634, 1637, 1638, 1641, 1643 V. Providence Aqueduct Co. 1743 Dey V. Dunham 852, 1020 V. Walton 1577 Deybel's Case 180 Dhegetoft V. London Assur. Co. 193 Dias V. Bouchaud 268, 285, 581 V. Merle 1606, 1638, 1645 DIbbs V. Goren 180 Dick V. Swinton 1803, 1808, 1817 Dickenson v. Loekyer 1482 Dickerson v. StoU 1137 V. Talbot 1293 Dickey v. Allen 841 Dickinson v. Davis 305 V. Lesare 1257 V. Smith 1075 Didier v. Davison 634 Diffenderffer v. Winder 1453 Digby V. Brown 1285 Lord, V. Meech 329 Dieas?;. Wolcott 1731 Dike V. Green 567, 583 Dill V. Shahan 1652 Dilhnan v. Schultz 42 Dillon, Lord, v. Alvares 658 V. Mount Cashell, Lady 1413 Dllly V. Barnard 841 v.Do\g 346,1749 r. Hackrott 365 Dimmock v. Bixby 230, 345, 348, 573, 684, 608 Dinckle v. Timrod 1121 Dines V. Scott 1162, 1173, 1229 Dingle V. Rowe 969 Dinsmoor v. Hazelton 736 Dinwiddie v. Bailey 575 e* Dios V. Merle 1 155 Diplock V. Ilanininnd 1668 Direct London Railway Co., In re 1033 Disbrow v. Ilenshaw 1571, 1578 Dixon V. Astley 1823, 1824 V. Buell 192 V. Donaldson 285 V. Dawson 1508 V. Dixon 1300 V. Gayfere 674 V. Parker 682, 981, 1483 V. Parks 795 V. Rutherford 80C ), 804 V. Shum 988 V. Smith 1075 V. Wyatt 1144, 1603, 1607 Dobede r. Edwards 821, 1700 Doble V. Pearce 1725 V. Potman 1653 D'Obree, Ex parte 66 Dobson V. Laud 1245 Dodd V. Hartford, City of 1766 Dodge V. Dodsre 1606 V. Griswold 1087, 1090, 1106, 1110, 1115, 1524 V. Israel 913 V. Perkins 322, 36 2, 377 ,580, 651, 1257 V. Strong 1723 V. Wolsey 134 V. Woolsey 1766 Dodsley i\ Kinnersley 1747 Doe V. Andrews 603 V. Burdett 869 V. Deakin 870 V. Green 353, .1520 V. Haniblea 44 V. Read 1438 V. Robertson 44 V. Roe 29, 1107 V. Walley 870 V. Warren 1259, 1260 Dolder v. Bank of Eng land 1820, 781 V. Huntingfield, Lore 1, 18,20,51, 302, 568, 617 Dominicetti v. Latti 1152 Domville v. Barrington 1269, 1366 V. Lamb 550, 552 Donald v. McRae 33' 2, 519 Done's Case 1807 Donerail, Lord, v. Donerail, Lady 851 Donicetti v. Latti 512 Donn V. Lippman 46 Donne v. Lewis 1028 Donnell v. Columbia Ie s. Cc . 1302 V. King 6, 37, 698, 701 V. Parrott 1726 Donelly v. Ewart 418 Donovan v. Fricker 1249 liv INDEX TO CASES CITED. Doolittlo ('. Clooking 841 Drever v. !^Laudesley 51,] 1204, 1295 V. Lewis 244 Drew V. Drew 63-: !, 655, 734 r. Walton 1790 V. Harman 253 Doon r. 1? lyor 843 V. O'Hara 277 Doran v. Kveritt 1660 V. Power 693 V. Simpson 332 Drewry v. Barnes 1423 Dormer r. Fortosque 396 636, 1609 Driekle u. Timrod 1139 Dornt'oril i\ Dorntbrd 1453 Driver v. Fortner 382, 383 Dorsoy v. Campbell 1080, 1275 V. Tatner 334 r. Smith 1480 Drogheda, Lord, v. Malone 630, 637, 678 Doss V. Tvack 991 Drought v. Redford 1327 Dos Santos v. Frietas 732 Drouilard v. Baxter 37 3,414, 417 Doswt'll c. Eai-le 111 Druee v. Denison 102 DoiiLjhadiv V. Crowell 1133 Drummond v. ^lagruder 423 Dougherty v. Humpson 388 V. Ponder 500 V. McColgan 1241 V. St. Albans, Duke of 665 V. ISIorgan 1631 Drury v. Conner 842, 843 Doupfhrey v. Topping 1788 1'. jMoilins 1762 Douglas r. Clav 1202 V. Molins 1774 V. Ilorsfall 214 Drybutter v. Bartholomew 1482 V. Terry 1808 Dryden v. Frost 1468 Douglass V. ■Evans 506 Dry Dock Co. v. Amer. Life Ins. V. Horstall 238 & Trust Co. 1723 V. MeChesney 1087 Du Barre v. Livette 604 V. Sherman 1588, 1589 Duberley i\ Day 113, 121 Dougrey v. Topping 749 Dubless I'. Flint 1829 Douthwaite v. Spensley 1355 Dubois V. Dubois 871 Douw r. Slieldon 336, 583 V. Hall 435 Dow c. Jewell 152, 154, 155, 157 16'> V. Hole 141,483 165, 1015 Ducoign V. Schuppel 1225 Dowflale's Case 244 Dudgeon v. Corley 743 Dowdall V. Lenox 1462 Dudley v. Grayson 44 Dowdeu V. Hook 34, 106 Dues V. Smith 92 Dowel! /•. Covenhoven 104, 106 Duffiur V. Sigel 357, 768 Dowley r. Wringfield 1840 Duffield v. Graves 611 Dowling V. Hudson 1426 V. Robeson 849, 850 Downer r. Dana 1033 V. Sturgis 829 Downes, Jn re 1871 Dugan V. Gittings 842 Downes v. E. I. Co. 619 Duke V. Palmer 115 Do wing V. Palmaten 2 81, 1732 1735 Dummer v. Chippenham, The Downshire v. Tyrell 1424, 1428 , 1429 Corp. of 134, 234, 298 The Marquis of, V. Dumond o. Mage 6, 74, 89 Sandvs, Lady 1738, 1785 , 1786 Dumoussay v. Delevit 46 Dows r." MeMichael 1716, 1718 , 1722 Dumville v. Ashbrooke 1423 Dowson V. Hardoastle 1678 , 1679 Dunbar (;. Woodcock 1001, 1259 Doyle c. Wiley 957 Duncalf t'. Blake 636 Doiier V. Edwards 209 Duncan v. Cam jbell 101 r. Sprouse 1007 V. Dod( 1284 Drake r. Drake 735 V. Duncan 577 V. Sims 739 V, King 1085 Drant v. Vaux 763 V, Lyon 575 ])ran(iuet v. Prudhomme 84 7 V. Vartv 1116 Draper r. Clarendon, Lc c. Crowther rd 274 V. Wickliffe 283 65 2, 653 Duncombe, Ex parte 1801 );. Morton 38 V. Hansley 281 Drape!-'.- Co. v. Davis 1255 Dundas v. Dutens 311, 1067 1 ^ Dravtoii /•. Logan 1091 Dungev V- Angove 1659, 1660, 1662, /;. Wells 1105 1666, 1667, 1671, 1672, 1673, 1674, Dresser r. Morton 508 1679 INDEX TO CASES CITED. Iv Dunham v. Gates 839, 840 V. Jackson 843, 1808, 1809 V. INJiiuml 1080, 1281 V. Winans 921, 1559 Dungaiinon n. Skinner 886 Dunkin v. Vandcnberg 1861 Dunkley r. Dunkley 99 Dunlap'r. Gibbs 585 r. IMcElvoy 449 V. Mrllvay 747 I'. Stetson 1727 Dnnlopr. Hubbard 1678, 1679 Dunn V. Dunn 351, 432, 441, 560, 841 V. Graham 843 V. Keezin 708 V. McEvoy 32 V. Whitney 1225 Dunning r. Stanton 448 Dunny v. Fihnorc 1628 Dunsay v. Shaw 718 Dunseomb v. Dunscomb 1489 Dunshee (;. Parmelee 1259 Dunstan t\ Patterson 1466, 1468 Dupont r. Johnson 1404, 1485, 1490, 1493 r. Ward 492 Duponti 0. ]\Iussey 408 Dupote V. Massey 828 Durand v. Duraud 577 V. Hutchinson ' 660 Durant v. Essex Co. 1011 V. Moore 1 784 Durdant v. Redman 623 Durfee v. Durf'ee 874 V. IMcClurg 843 V. Old Colony &c. R. R. Co. 134, 1767 Durkee v. Stringham 1563 Durr V. Bowyer 90, 116 Durrand, 7?x /)a?-/e 127 Dursley v. Burkley 323 V. Fitzhardinge 324 Dustin ('. Newcomer 1480 Dutch Church &c. v. Mott 1004 V. Smock 1325 Dutch West India Co. v. Van Meyer 25 Duvall V Farmers' Bank 88, 90, 116 V. Speed 268 V. Waters 1732,1733,1739,1770 Dwight V. Humphreys 313 V. Fomeroy 857, 882 Dwinall v. Smith 729 Dyckman i\ Kernochan 1694 Dyer y. Kearsley 1718,1719 V. Lincoln 683 V. Potter 1463, 1480 Dyett V. N. A. Coal Co. 435, 439 Dyott V. Anderson 1173 V. Dyott 31 Dyson v. Benson 617 V. Hornby 1275 V. Morris 996, 1009 E. Eade v. Lingood Eades v. Harris Eagan v. l^aldwin Eager i\ Wiswall Eagle V. Price 886 278, 1579 1498, 1499 1376, 1378, 1385 1600, 1612 Eagle Bank v. Chapin 26 Eao-le Ins. Co. v. Canunet 186, 221 V. Pell 1244 Eagle Iron Works, jNIatter of 1425, 1430 Fames v. Fames 1001, 1085, 1094, 1095 Eardy v. Headtbrd 31 Earle u. Pickin 1181 East V. Ryal 1494 Eastburn v. Kirk 1461,1544,1768,1769 East India Company v. Atkin 592 u. Bazett 1110, nil V. Boddam 1559 V. Campbell 590, 591, 1772 V. Coles 285, 584 V. Donald 845 17. Edwards 1660, 1604, 1667 V. Ekins 1473 V. Henchman 490, 565 V. Keighley 1176, 1234, 1324 V. Naish 955 V. Neave 592,593 V. Vincent 1742 Eastman v. Batchelder 1626 V. McAlpice 841 Eaton V. Dickinson 1631, 1632 V. Lyon 1763 V. Sinionds 1245 Eberhart v. Gilchrist 1290, 1291 Eberly v. Gross 378 Eckert v. Wilson 1257 Eckford v. Dekay 885 Eccleston v. Petty 161 Echliifi;. Baldwin 1757,1772 Eden v. Bute, Earl 1585 Edenborough v. Canterbury, Arch- bishop of 1512 Edenson v. Roberts 10 78 Edgar v. Clevenger 1595 Edgell V. Lowell 933 Edgill y. Brown 1618 Edmond v. Caldwell 189 Edmonds v. Ackland 1144 Ivi INDEX TO CASES CITED. Edniondson v. Ilcyton 491 Edmunds c. Bird 1417 EdiK'v V. Jewell 854 Edsell V. Biuhannan 613, 664, 675 Edwards v. Cunliffe 1018 V. Davies 86 V. Edwards 1417, 1821) V. Goodwin 1162 r. Harvey 1463, 1480, 1496 V. llotkin 1013 V. !McLear 781 V. jSIcLeay 782 V. Massey 365, 1062, 1800, 1801 V. IMorgan 967 u. Pool 1158 Edwardson c jNIaseby 1628, 1630, 1637 Edwin c. Thomas 1112, 1113, 1117 V. Williams 114 Eedes V. Eedes 100, 103 Effingham. Ladv, v. Napier, Sir J. 72 Egbe'rt V. A\'oo(is 209, 305 Egerton v. Jones - 1215 Et'S 884, 897 Harjrrave o. llargrave 1038,1100, 1101 Harirroavi's v. Michell 6G7, G78 Harlan r. Barnes 1015 Harland's Accounts 1453 Harlow r. Crowley 1GG2 Harman c. Foster 1441 V. Jones 1745 Harmer v. Gooding 372, 5GG V. Harris 1487, 1519 V. Plane 1748 V. Priestley 1471, 1476 Harnett v. Yielding 1483 Harney v. Branson 1010 Harp V. Osgood 189, 334 Harper v. Pearson 1754 Harreli v. Waldron 1729 Harrington v. Beeker 812, 1617, 1619 866 1611 Harris v. Carter 284, 286 V. Clapp 1252 V. Davis 1401 V. De Tastet 1157 V. Fly 1298, 1312 V. Harris 159, 1384, 1654, 1656 V. Intrleden 225, 716, 718, 763, 872, 879 r. James 744 V. Knickerbocker 409, 856 V. Thomas 564, 1732 V. Youman 154, 158, 1015 Harrison v. Armitage 1419 V. Boswell 726 V. Boy dell 1441 V. Brown 27 V. Cockerell 1771 V. Dclmont 784 V. Harrington V. Slade V. Eldridge 1139 V. Forth 698 V. Hall_ 1559 V. Harrison 76 V. Hogg 305 V. Johnson 839 V. McMennomy 1463 V. Morton 286 V. Nettleship 687, 1722 V. Nixon 365 V. Pryn 240 V. Righter 19f ), 332 V. Rowan 149, 287, 290, 581 V. Rumsey 990 V. Southcote 590, 596, 634, 636 V. Stewardson 218, 230, 251, 274,479 Harryman v. Collins 1472 Harsell v. Kelley 670 Hart I'. Albany, May or of 1733, 1736, 1742 V. Blcight 1283 V. Brand 1480 V. Coffee 263 V. Granger 658 V. Hart 997 V. McKeese 318 V. Phillips 662 V. Small 1G99 V. Stephens 108 t;. Strong 945 V. Ten Eyck 281, 836, 840, 841, 1154, 1160, 1227, 1228 V. Tims 1412 V. Talk 1426, 1704 Hartell v. Van Buren 657 139 766 Hartga v. Bank of England Hartland v. Atcherley V. Danrocks Hartley v. Gilbert V. Russell Hartman v. Dowdell 1101 82 583, 590 113 Harvard College v. Soc. for Pro- moting Tbeolog. Education 129 Hartridge v. Rockwell 1744, 1772 Hartslwrne v. Hartshorne 1122, 1139 Hartt V. Harvey 1725 Harvey v. Ashley 96 V. Brook 1367 V. Clayton 604 V. Cooke 293 V. Crawford 1260 V. E. I. Co. 393 V. Harvey 218, 1071, 1210, .1363 V. Jacob 32 V. Morris 598 V. Murrell 1638 V. Smith 1743 V. Tebbutt 1471 V. Towell 985 Harvie v. Banks 1244 Harwood v. Kirby 276 Hasbrouck v. Shuster 1595 Haskell v. Hilton 192, 290, 581 V. Raoul 1011, 1638 Hasler v. HoUis 782 Hastings v. Palmer 805 V. Wiswall 1260 Hatch y. 1165 V. Eustaphieve 312, 313,398, 745 V. White 281 Hatcher v. Hatcher 389 Ilatchett V. Cremome 1328 Hatfield v. INIontgomery 664 HathomAvaite v. Russell 1413 INDEX TO CASES CITED. Ixvii Ilaverfield v. Pyman Havers v. Havers Hairland r. l>loom Hawes V. r>aiuibrd Hawke V. Kemp Hawker v. Buneomb Hawkeswortli r. Dewsnap Hawkins v. Craig V. Crook V. Day V. Galhercole Hale Hall Hawkins Holmes 1375 1412 89, 99, 101 1687 1702 1042, 1044 875 218, 230 500, 503, 1077 1318 1074, 1422, 1433 432 1521, 1522 211 681 Heath v. Heath V. Lewis V. Percival I i\ Vreian ! Heathcote v. Edwards 89, 90 1591, 1607 243 1569 1836 Hawks V. Kennebeek Hawkshaw r. Parkins Hawley v. Bennett V. Cramer V. Donnelly V. James V. Wolverton Hawortli v. Bostoek Hay V. Bowen V. Willougliby Haycock v. Haycock Hayden c. Mannaduke Hayes v. Johnson V. Miles Hayllar v. Sherwood Hayne v. Hayne Haynes v. Ball Hays, Ex parte V. Jackson Hayward v. Carroll V. Fry V. Hayward V. Stilhngfleet Haywood r. Marsh ('. Ovey Hazen v. Durling V. Thurber V. Luscombe 73, 161, 163, 549 568 1758 1621, 1622, 1786 265, 575 1687 1024, 1564 355, 377, 769 838 1484 1862 200, 204, 249 294 1659 1694 56 633, 1649 492, 493 1404 1821 838 9, 173 1331 1734 670, 1555 267 229, 1717 1140 927 120 700 1641, 1802 198 971 1602, 1624 1453 619, 626 506 Heacock v. Stoddard Head v. Cragh V. Esjerton V. Head 75, 848, V. Teynham, Lord Healey v. J agger Heard v. March Hearle v. Greenback Hearn v. AVay Hearne v. Ogilvie Heartt v. Corning 630, 640, 707, 708, 713, 719, 1226, 1248 Heath v. Ashley 1015 V. Cliadwick 57, 59 V. Elhs 27, 237, 296 V. U. S. Railway Co. 1725 Heather v. Waterman 479 Heatley *'. Fiiister 701 Hedges t'. Canloiiel 1323 Heeman v. INlidland 1375 Heighington v. Grant 1492, 1518 Helm c. Hardin 213, 251, 1564, 1566 Helms V, Franciscus 75, 90 Heming r. Swinnerton 578, 1722 Henuup, In re 1136, 1300, 1301, 1302, 1717 Hennning v. Mayo 516 Hemphill v. Miller 561 Henderson v. Dennison 628 V. Henderson 679 V. Hopper 432 V. Lowry 1284, 1285 V. M'lver 233 V. j\Ieggs 501 V. Thomas 514, 518, 521 Hendrick v. Robinson 1041 Hendricks v. Craig 924 V. McLean 1015 Hending V. Clay 1618 Heneage v. Aikin 1707 Henley v. Phillips 1490 V. Stone 278, 752 Henn v. Walsh 1419, 1420 Hennegal v. Evance 892 Hennessey v. White 84, 89 Henning v. Willis 195, 203, 371, 1476 Hennings v. Conner 779 Henrick v. Blair 695 Henry v. Costello ' 785 V. Doctor 1048 V. Tapper 1727 Hepburn v. Auld 1004, 1005 V. Diinlop 1004 V. Durand 740 Hepburn's Case 47 Hepworth v. Heslop 276 Herbert v. Maver 960 V. TorbaU 66 V. Wren 1139 Hercy v. Ballard 669 Hereford, Bishop of, v. Adams 1512 Herner v. Benbow 1734 Herr v. Bierbower 1736 Herrick v. Belknap 1184, 1294, 1299, 1301, 1302, 1303, 1312 Herring ?;. Clobery 1566 V. Policy 1030 V. Yeo 221 Herrington v. Hubbard 285 Ixviii INDEX TO CASES CITED. Hersev r. Yoazie 1 7G6 Ilerttmd. Maniuis of, In re 1791, 1792 llertlord, Maiiiiiis, v. Boore 373 Borough of, V. Hertford, Poor of 1495 !Miirquis of, v. Lonsdale, 1838 V. Suisse 452 Heskcth v. Mulock 949 Heslop V. Metoalf 1859 Hewt's (". IK'wos 1174 Hewitt r. INIcCartney 489 c. Birne 604 Hewitt's Case 149, 1122 Hewlett V. Davis 1270, 1280 Hey V. Sihooley 1010 Heygate v. Annesley 112 Heyman v. Launders 1 7 74 Heyn v. Ilevii 1077, 1152, 1432 Hibbert v. ])iirand 740 Iliohens v. Congreve 26, 295 Hickman c. Cooke 352 Hickok V. Farmers' and Mechan- ics' Bank 890, 918, 919 Hicks V. Hicks 1441 V. Raincock 611 V. Wrench 1489 Hickson v. Aylward 692 Hide V. Havwood 1492 V. Petit 1063 Hiern v. Mill 335, 383, 385, 698, 699 V. Bacon 1229 Hifrbee i'. Brown 1321 Higdon V. Higdon 848, 998 V. Thomas 189 Higginbotham v. Burnet 570, 608 Higgins V. Crawford 677 V. Woodward 1770, 1783, 1787 660 1421 143 High V. Batte 637, 698, 701, 702, 739 V. Worley \ 230 Rush 1773 287 1458 Hildreth v. Schillinger 1088, 1092 Hildyard v. Cressy 409, 648, 704 Hiles V. Moon 1427 V.Moore 1410,1411 Hill V. Andus 397 V. Barclay 1764 V. Biiiney 837 V. Bush 840 V. Bute, Earl of 750 V. Chapman 1566, 1567, 1838 V. Crauy 733 V. Edmunds 120 r. Hill 885,1401,1611 V. Kirwan 1415 V. York Buildings Co. Higginson v. Adir V. Wilson Hightom i' Hightower v. Mustian V. Smith Hill V. Eeardon 29 V. Rimell 1427, 1701, 1705, 1773 V. Sayles 1743 V. Smith 7G3 V.Thompson 1748,1750,1771, 1772 r. Tollett 515 V. Turner 1654, 1726 V. Ward 1090 Hilieary v. Hurdle 384 Hills V. Hills 72 V. McRae 209 Hilton V. Lawsen 653 V. Lord Granville 1121 V. Lothrop 395 Hinde v. Vattin 869 Hindman v. Taylor 664 Hindmarsh v. Soutbgate 153 Hine V. Dodd _ 840 Hines v. North Carolina, State of 18, 19, 22, 25 Hinkley v. Morcan 46 Hinks V. Nelthorpe 598 flinson v. Pickett 1559 Hinton v. Granville, Earl of 1744 Hiorms v. Ilolton 1470, 1500 Hippesley v. Homer 1097 V. Spencer 1735 Hitch V.Wells 1112 Hitchcock V. Carew 879 V. Giddings 1480 V. Jaques 422 V. Skinner 981, 1123, 1133 Hitchens v. Congreve 172, 236 Hitchins v. Lander 632 Hite V. Hite 1252 V. Saltor 1097 Hix V. Whittemore 850 Hoare v. Contencin 574 V. Johnstone 838, 1176, 1177, 1319 V. Parker 639, 706 V. Peck 585, 587 Hobart v. Abbott 187, 208, 256 V.Andrews 192,194,370,692, 856 V. Frisbie 365 V. Stone 1821 Hobartsv. 1264 Hobbs V. Dane Manuf Co. 60 Hobhouse v. Courtney 440 V. IloUcombe 1432 Hobson V. Doe 1105 V. Mc Arthur 383 V. Shearwood 1861 V. Sherwood " 1158 V. Warrington 606 Hoby V. Hitchcock 30, 31, 51 Hock V. Hock 871 INDEX TO CASES CITED. Ixix Hodder v. Ruffin 1280,1281,1283,1284 Ilodgden v. lI(Hl2;{len 1254 Hodge V. Hawkins 14.'j;j V. Ilolint'S 281 V. Koxwortliy 1311 Ilodgons V. llodgens 102 Hodges r. Beverley 110 r. MuUikin 1023,1045,1634, 1638 V. New Ensjland Screw Co. 1 77G V. Tiiigree" 1003, 10iJ7, 1122 V. Salomons 1319 V. Smith 1G74, 1076, 16 77 V. Welsh 1752 V. Wise 435 Hodgkin v. Longden 569, 571 Hodgson V. Merest 855 V. Powis, Earl 1744 V. Thornton 726 Hodle V. Healey 664 Hodson V. 873 V. Ball 1612, 1633 V. Warrington, Earl 882 Hoflman v. Duncan 1424 11. Livingston 1696, 1769 V. Savage 1130 V. Skinner 1481, 1519 V. Smith 1115 Hogan, In re 1683 V. Branch Bank of Decatur 746 V. Burnett 333 V. Short 189 V. Walker 276, 277, 289, 291 Hoge V. Fisher 849 V. Penn 1838 Hogencanip v. Ackerman 731 Hogg V. Kirbv 1 74 7 Hoggart y. Ciitts 1659,1662,1667,1668 V. Scott 1005 Hogue V. Curtis 820 Holabird v. Bun 1221, 1237, 1246, 1247, 1300, 1322 Holbeck v. Sylvester 1313 Holcombe v. Holcombe 866 Holden v. Chalcrafl 518, 717 Holder v. Hearn 162 Holdernesse v. Saunders 1721 Hole V. Harrison 266 Holford V. Yate 520, 1018 Holgate V. Ha worth 1492 Holkirk v. Holkirk 797 Holland v. Baker 251, 274 V. Cruft 470, 146 7, 1793 V. Gwynne 1865, 1871 V. Moody 1 1 V. Prior 247 Holies r. Can 976 Holley V. Glober 1143 HoUiday v. Biordon 423 Holt r. Burleigh Holt Holliday w. Kiordom 1811 Hollinghead's Case 1622 Hollings V. Kirby 163 HoUingsworth v. McDonald 1630, 1631, 1634, 1637, 1638 V. Shakeshaft 322, 387, 564, 998, 1451 Hollis's Case 207, 666 Hollister I'. Barklcy 840, 1160,1219, 1228, 1256, 1259, 1787, 1788, 1789 Holloway v. Holloway 1 754 Holman v. Bank of Norfolk 349 V. Puddle 1632 Holmes v. Arundel], Corp. of 1317 V. Baddeley 602 V. Bell 1409 V. Field 69 V. George 1788 V. Holmes 107 V. Rcmsen 1011 V. Warring 619 Holstcomb r. Ptivers 1228 1566 V. Jtioit 494 Holworthy v. Mortlock 1120, 1487, 1724 Homan v. INIoore 1666 Homer v. Fish 670 Hone V. Van Schaick 1541, 1564 Honeywood v. Selwyn 730 Honor ik ]\Iorton 114 Honore v. Colmesnel 692, 962, 1325 Hony V. Hony 585, 638, 648, 6 71, 672 Hood V. Aston 1756, 1772 V. Inman 855, 365, 741 V. Irwin 314 V. Lynn 1766 V. Marquis 1087 V. N. Y. & N. PL R. R. Co. 1727 V. Pimm 855, 1566 D.Wilson 1512 Hooe V. Marquess 1087 Hook V. Dorman 399, 614, 623, 706 r. Roberts 1791 V. Ross 464, 479 Hooks V. Sellus 1315, 1318 Hooley v. Hatton 848 Hooper v. Goodwin 1 285 V. Winston ll07 Hope V. Hope 437, 440, 957, 1399 V. ThrelfuU 908 Hopkin V. Hopkin 907, 1817 Hopkins v. Clevbrook 448 V. Hopkins 222, 263 r. Lee 1000 V. Stump 868 V. Young 368 Hopkinson v. Bagster 1163, 1165 V. Leach 1158 Hopkirk v. Bell 49 Ixx INDEX TO CASES CITED. Hopkirk v. Page Hopper V. Hopper Hore r. Boochcr Horlock V. Priestly r. Smith Home V. Barton Hornsbv v. Lee Horseburg v. Baker Horsley v. Bell V. Chalenor 182 727 117 1497 1250, 14G9, 1850 1553 113 1518 269 1493 Horton v. Bapt. Church & Soc. 1659, 1676 Horwood V. Schmcdes 1007, 1618 Hosaok V. Rogers 1068, 1489, 1819 Hosford V. Nichols 1260 Hoskins v. Lloyd 493 Hotchkiss i\ Trustees, &c. 21 Houck V. Camplin 115 Hough V. Canby 161 V. Doyle 161 V. Lawrence 937 V. Martin 1372, 1770 V. Richardson 840 V. Rvley 93 V.Williams 1180,1185 Hougham v. Sandys 1183 Houghton V. Barney 1517 V. Kendall 1665, 1680 V. Reynolds 366 Houlditch V. Donegal, Marquis of 853, 1603 House V. "Walker 1290 Houston V. Aycock 1284 V. Mossman 1254 Hovenden i'. Annesley, Lord, 565, 585, 586, 669, 670 How V. Best 136, 296 V. Hall 875 Howard's (Sir R.) Case 66 Howard v. MofFatt . 88, 97 V. Newman 490 V. Okeover 587 V. Palmer 433 V. Papera 1413 V. Rhodes 1491 r. AVarfield 1728 Howden v. Rogers 1803, 1807, 1811 Howe V. Duppa 611, 697 t). Harvey 363, 588 V. Russell 778, 779, 781, 1231, 1247, 1300, 1302, 1327, 1328 Howell V. Arkmore 135 V. Ashmore 136, 596, 597, 606 V. Coningsby, Lord 1071 V. George 839, 1461 V. Harding 1861 V. Waldroa 658 Rowland j;. Fish 218 Hewlett V. Wilbraham 149 Howling i\ Butler 720 Howse V. Chapman 1504, 1505 Hoxey v. Carey 295, 800 Hoxie V. Carr 182, 194 V. Scott 751 Hoye V. Penn 433, 1540 Hoyle V. Livesey 990 Hoyt V. Gelston 1544 V. Hilton 67 Hubbard v. Borden 189 V. Hubbard 849 Hubbcrd r. Hewlett 1173 Huble V. Clark 874 Huddlcston v. Briscoe 1564 V. Huddleston 1140 Hudson V. Carmichael 1364 V. Hudson 1652 V. Maddison 305, 351 Hue V. Richards 1380 V. Rickards 1385 Huffman v. Barkley '956 Huger V. South Carolina 436 Huggins V. York Buildings Co. 636, 1263, 1616 Hughes V. Biddulph 600 U.Blake 686,716,827,840 V. Bloomer 780, 782 V. Eades 180, 855 V. Edwards 664 V. Evans 104 V. Garner 842, 852, 853 V. Garth 700 V. Hughes 1437 V. Jones 575, 1637, 1644, 1645 V. Millikin 1643 V. Moore 190 V. Phelps 876 V. Science 1393 V. Smith 1453 V. Stickney 1631 V. Williams 1163, 1164, 1236, 1237,1242 V. Wynne • 667, 1252 Hughson i'. Cookson 204 Huguoin r. Baseley 1412, 1550 Hulbut V. McKay 1206, 1837 Hulkesy. Day 1052,1799 HuUett t'. Spain, King of 18, 131 Hulme V. Tenant 146, 147 Humbert v. Trinity Church, Trus- tees &c. of 585 Hume V. Babbington 560 V. Long 1650 V. Scott 980 Humphrey v. Foster 1143 V. Harrison 1735 V. Hollis 224, 1120 V. Humphrey 326, 327, 714 INDEX TO CASES CITED. Ixxi Humphrey v. Ingledon 324, 325, 326 V. Pensam 8GG V. Tate 3, 30 Humphreys v. Blevins 1111 V. Humphreys 408 Humphry v. Morse 14G3, 1497 Hungate v. Gascoigne 697, 1612 Hunsrerford v. Cushinjr 345, 1426 V. Joyce 1114 Hunn V. Norton 1259, 1462, 1490, 1493 Hunt V. Acre 226 V. Booth 36, 105 V. Ellison 1021 V. Fownes 1468 V. Gookin 730, 734 V. Holland 412, 415 V. Lewin 1016, 1458, 1544 V. Nevers 1257 V. Pemice 644 V. Priest 1074, 1076, 1409 V. Rousmaniere 424, 843 V. Stevens 328 V. Strong 1540 V. TeniU 687 V. Wallis 751 V. Wickliffe 285, 295, 448 Hunter i;. 1712 t;. Dashwood 1463 V. Fletcher 933 V. Hallett 111, 119 V. Hutton 1000 V. Jones 834 V. Lawrence 1400 V. Marlboro 1544 V. Potts 58 V. Robbins 505 V. Spotswood 670 Huntington, Trustees of, v. NicoU 1543 Huutingtower, Lord, v. Sherborn 61 Hurd V. Everett 403, 407 V. Haines 751 V. Lever 444 Hurlbind v. Fairlove 1553, 1557 Hurst V. Hurst 282, 1365 Hurt V. StuU 1264 Husley v, Robinson 1030 Husou V. McKenzie 209 Hussey v. Dole 182, 285, 292 Huston V. McClarty 283, 284, 285, 288, 295, 391 V. Noble 283 Hutcheon v. Mannlngton 1685, 1685 Hutcheson v. Smith 1248 Hutchings V. Smith 113 Hutchins v. Childless 839 Hutchiuson v. Brock 47, 51 V. Freeman 1503 Hutchinson u. Mannington 1839 V. Massareue 1407, 1431 V. Reed 294, 40C, 789 V. Sinclair 843 V. Smith 1226 V. Tindall 1228 Hutton V. Mansell 1275 Hyde v. Edwards 1392, 1845 V. Forster 439, 1077, 1624 V. Greenhill 1078 V. Price 1254 V. Warren 1674 V. Whitfield 1684, 1808, 1812 Hyer u. Deaves 1264 Hyllard v. White 704 llylton u. Morgan 1766 Hyslop V. Powers 1541 laege v. Bossieux 1305 Ibbotson V. Rhodes 845 L C, Ex parte 1402 Idley V. Bowen 1541, 1564 Ilchester, Earl of, Ex parte 1023, 1397 Her V. Roath 1091, 1630 Illsley V. Jewett 671 Ilsley V. Nichols 1815 Inlay u. Carpentier 1723 Inby V. McRae 6 77 Incorporated Soc. v. Richard 1250 Ingalls V. Lord 1631 Inglee v. Coolidge 1462 Ingrahan v. Dunnell 2G0, 1732, 1733, 1741, 1742, 1744 V. Hall 338 V. Postell 1252 Ingram v. Mitchell 972 V. Sherad 666 1 V. Wearing 389 V. Evans 641, 645 V. Jackson 292 V. Lansinjj 1418 Ipswich Manuf. Co. v. Story 1821 Irby V. McCrea 1255 Ireson v. Denn 208 Irons V. Crist 151, 559 Irvine v. Young 690 Irving V. De Kay 1501, 1503, 1650 V. Dunscomb 1573 V. Young 690 Irwin V. Carlton 443 u. Reed 1105 V. Vint 1044 Isaac V. Ilumpage 1723, 1768 Isaacs V. Clark 332 V. Cooper 1748 V. Steele 382 Ixxii INDEX TO CASES CITED. Isaacs V. Wcatlierstone 1830 Ismond v. Clavpool 1017 Isnard v. Cazoaux 35, 38, 1699, 1703 Ives V. Hazard 841 t'. IModcalfc 834 V. Siunnor 6G5 Ivy V. Kekowicke 606 Izard V. Bodiuo 1247, 300, 1327 J. Jackson t\ Adams 44 V. Ashton 335, 363, 365, 377, 408, 522 i\ Bailoy 1104 V. Barry 1089 V. Benson 195, 203, 372 V. Bftts 871 V. Blanshan 869, 870 V. Britton 44 V. Cartwright 365 V. Cassidy 1691, 1770 V. Catli^ 52 V. Cator' 1771 V. Christman 869 V. Cutright 779 V. Denison 896 V. Edwards 1281 V. Ewer 597 V. French 604 V. Freyer • 1588 V. Hawortli 483 V. Iiines 119 V. Jackson 1116, 1163, 1168, 1172, 1298, 1301, 1302, 1323 V. Jones 1789 V. King 849 V. La Grange 871 w. Leaf 394,1719 V. Lever 1276 V. Lingan 1212 V. Northwestern Railway Co. 625 V. Parish 781, 784 V. Tetrie 1800, 1803, 1806, 1811 V. Purnell 809, 810 V. Rawlins 148, 263 V. Rowe 697, 700, 703, 722 V. Saunders 17G3 V. Scanber 248 V. Sliles 1701 V. Strong 952 V. Turner 157, 1015 V. Turnley 583 V. Van Dcusea 849, 850 V. Vandyke 871 Jackson Ex Dem. Culverhouse v. Beach 44 Jacobs IK Richards 615 James v. Bartley 520 V. Bion 805 V. Cresswickc 606 V. Dore 36, 501 V. ])owncs 1783 V. Fisk 1632 V. James 161, 162, 765 V. JeH'erson 1774 V. Lawrence 338 V. McKenin 850 V. McKernon 353, 382 V. Owens 1775 V. Parnell 872, 1102 V. Philips 494 V. Prichard 1662 Jameson v. Deshields 287, 395 f. Mosely 1015 Jamison v. May 1 724 Jauson V. Rarey 843 V. Solarter 732 Jaques v. Esler 1 759 V. Hull 1595 V. Metho. Epis. Church 1003, 1323 Jarrett V. White 1123 Jarvis v. Chandler 1723, 1730 V. Palmer 611, 615, 707 Jauncey v. Sealey 688 Jefferson v. CuUis 721 V. Dawson 960 V. Durham, Bishop of 9, 1 734 Jefferys v. Baldwin 751 Jeffreys v. Smith 1418 V. Tarborough 1302 Jeffrie v. Robideaux 151 Jeffris V. Whittuck 912 Jenkins v. Eldredl)es JMeriwotlier r. Hooker Merklein r. Trapnell Merriam r. Barton r. Baxter Merrill v. Lake 1728 1516, 152-2 114, 118 1131 1238, 1544 1247, 1300 305 Merrimack Manuf. Co. v. Garner 1753 ]\Ierr_vfield r. Jones 17 73 Merwin r. Smith 1260, 1267, 1768, 1769, 1787, 1789 Messervey v. Barolli 237 Messonia v. Kainnan 1548 Metcalf V. Beckwith 1137, 1138 V. Brown 614 V. Ilervev G08, 1669, 1671, 1672 Metcalfe r. IMctcalfe IGIO v. Pulvcrtoft 278, 1411, 1757 M. E. Church v. Jaques 96, 145, 381, 729, 733, 736, 768, 1226, 1305, 1321, 1458, 1462, 1621, 1838 Methodist P. Church v. Baltimore, Mayor and Common Council of, 1723 Meux V. Bell 1298, 1670, 1671, 1674 V. Maltby 269 Mewshaw r. Mewshaw 374 Michel V. BuUen 1522 Michigan State Bank v. Gardner 183, 216 V. Hastings 123 Michoud V. Girod 1001 Mickles v. DiUaye 1221, 1243 Micklethwait (;. Moore 606 Micklethwaite v. Atkinson 169, 771 Middleditch v. Sharland 692 Middleton v. Dodswell 1412, 1772 V. Elliot 1472 V. Eranklin 1741 ?\ Middleton 1117,1465 f. Sherburne 1088, 1095, 1416 Miers v. Zanesville and Maysville Turn p. Co. 660 Milbank v. Revet 1420 Mil. & Chil. Turnpike Co. v. Brush 23 Mildred r. Robinson 1047 Miles V. Boyden 68, 151 V. Davis 216 V. Miles 381, 736, 768, 840, 841 V. O'llara 1104 V. Stanley 694 V. Williams 9 Milham v. Sharp 1741 Mill V. Mill 976, 978 Millar ?;. Craig 1343 V. Taylor 1778 Millard's Case 701 Miller, In re 89 V. Avery 843, 880, 1759 V. Bear 193 IMIller V. Bcvcrleys V. Caruthers V. Chittenden V. Colton V. Fasse V. Fen ton V. Ford V. Gow V. Hall V. Henderson V. Jackson V. Kershaw V. Lincoln V. Lord V. McCan ■ V. McCase V. McCrea V. Mc In tire V. Miller V. Rushforth V, Russell V. Saunders 1232 871 1112 335 615, 792 1649 569 836, 840 448 192, 208 857 187 1236, 1237, 1467, 1472, 1517 383 292, 295, 404 406 285, 288 586, 663 1131, 1816 1044, 1328 1105 729 V. Wack 836, 841, 1087, 1091 V. Warmington 201, 1135 V. Whittier 285, 294, 1239, 1244, 1305, 1321 Milligan v. Millege 175, 176, 212, 289, 392, 630 V. Mitchell 236, 238, 295, 404, 406, 728, 1758, 1772 MlUington v. Fox 1461, 1473, 1475, 1778 Mills V. Bank 1554 V. Brown 565, 566, 567 V. Cobby 1781, 1786 V. Dennis 157, 159, 162, 164, 165, 765, 1015 V. Fry 820 V, Gleason • 1766 V. Gore 838 V. Hanson 1830, 1831 V. Iloag 1010, 1541 V. Metcalf 318 V. Pittman 827 V. Hare wood. Lord 163 Milner /'. Milner 1595 Millspaugh o. McBride 991, 1038, 1044, 1283 Miltown, Lord, v. Stuart 1 705 Milward v. Milward 1401 Minis V. Minis 834 Mineve v. Rowc 969 Minet v. Hyde 92 Minnse v. Cox 1498 Minor, Tia; par/e 1273 Minot V. Curtis 22 Minshaw v. Jordan 177 Minter, Jn re 1059, 1872 INDEX TO CASES CITED. Ixxxv Minthorne v. Tomkins 1029, 1055 Minturn v. Seymour 1769, 1774, 1775, 1781 Mitchell, In re 1395 V. Bally 291 w. Berry 1265,1290,1629,1039 V. Bunce 658 V. Bunch 1046,1730,1731, 1800, 1801, 1803, 1807, 1817 i;. Dors 1737 V. Draper 1070 V. Green 598 V. Harris 695 V. Ilayne 1661, 1663, 1680 V. Kingman 80 V. Manchester, Duke of 1439 V. Maupin 365, 834 V. Lenox 286, 292, 564, 584, 631, 1565 V. Smart 1665 V. Smith 49, 588 V. Tighe 336, 583 V. Walker 1302 Mitford V. Mitford 113,115,116 Mix V. ilotchkiss 348, 350, 1244, 1245 Moat V. Holbein 1 775, 1 782, 1 784 Mobbs, Ex parte 1865 Mobley v. Hamit 890, 921, 938 Mocatta v. Lonsada 1507 V. Murgatroyd 1471 Modax V. Jackson 267 Moffat V. Farquharson 208, 232, 265 Moffet V. Claverts 854 Moggridge v. Thaokwell 13, 16, 1512 Mohawk'Bank v. Atwater 886, 1209 Mohawk Bridge Case 1013 Mohawk & Hudson R. E,. Co. v. Artcher 1742 Mohawk & Hudson R. R. Co. v. Clute 1660, 1663, 1668, 1669, 1670, 1671, 1680, 1742 Mohun V. Mohun 1512 Moir V. Mudie 1859 Mole V. Smith 1310 Molesworth v. Howard 735 Mollineux v. Powell 221, 1735 Moloney v. Kernan 699, 701 V. Smith 28, 29 Moncaster, Lord, v. Braithwaite 785 Monck V. Tanckerville, Earl of 411 Monckton v. Attorney-General 125, 126 Monday v. Guyer 884 Mondey v. Mondey 158, 165 Monell V. Lawrence 1540 Money, Re 36 Monil V. Lawson 128 Monk V. Pomfret 321 Monkhouse i'. Bedford, Corp. of 1018, 1550, 1558 VOL. I. .A Monnins v. Monnins 596 Monro v. Taylor 1480 V. Schormerhorn 1788 Monroy v. Monroy 742 Montague, Lord, v. Dudman 598, 1721 V. Hill 439 ' V. Lobdell 193, 194 V. Tui-pin 266 Montara v. Hall 1318 Monteith v. Taylor 814 Montesfjuieu v. Sandys 335, 850 Montford, Lord, (;. Cadogan, Lord 1415 Montgomerie v. Bath, Marcjuis of 204 Montgomery f. Attorney-General 1108 V. Calland 1250 V. Chadwick 1238, 1242 V. Clarke 1829 Moodaley v. Morton 135, 339 Moodie v. Bannister 289 Moody V. Bainbridge 1839 V. Learning 966 V. Payne 964, 967 V. Rowell 909 V. Steele 944 Mooers v. White 665 Moons V. De Bernales 855, 1093 Moor V. Greg 1764 V. Mayhow 701 V. Somerset 652 V. Veazie, 192, 236 V. Welch Copper Co. 148, 991 Moore, In re 1797 V. Anderson 284 V. Armstrong 607, 622 V. Beauchamp 211 V. Blagrave 196 V. Bray 601 V. Cable 1238, 1241, 1242, 1245 V. Desraw 1235, 1237 682 1462 V. Frowd 1233 V. Gleaton 218, 1812 V. Green 333 V. Hudson 394, 1809, 1810 V. Hunter 750 V. Hylton 1787, 1788 V. Langford 1163, 1165 V. Lockett 834 V. Lyttle 53, 336 V. McClintock 843 V. McNamara 273, 1758 V. Moberly 266 V. Moore 90, 305, 1637, 1646, 1647 V. Reed 1769, 1787 V. Smith 361 V. Stevenson 86 V. Usher 1661, 1668 V. Edwards V. Fountleroy Ixxxvi INDEX TO CASES CITED. Moore r. Walker 1750 V. Wright 448 ;Mordaunt v. Hooper 141G Moreau v. Sallarans 352 ;Moredook v. Williams 1789 Morehouse v. Newton 122G, 1248 Iklorelaud v. Richardson 1737 Moretoa v. Chandler 670 V. Harrison 633, 643 Morey v. Forsyth 192 Morgan v. 1514 V. Dillon 1397 V. Harris 571 V. Hatchell 1334, 1355 V. Hays 242 V. Lewis 1178 V. Mai-sack 1659, 1660 V. Morgan 224, 283, 452, 1004, 1452, 1611 V. New York and Albanv R. R. Co. 235, 406 V. Shaw 1824 V. Thorn 68 V. Tifdon 840 V. Tipton _ 1647 Morice v. Durham, Bishop of 1289 Morison, In re 1837 Morley v. Bridges 1473 V. Green 300 Morphett V. Jones 1768 Morrell v. Dickey 1398, 1489 V. Fisher 1504 V. Pearson 1780 V. Wooten 1376 Morrett v. Westerne 274, 275, 685 Morrice u. Bank of England 104 7 V. Hankey 1781 V, Swabey 1376 Morrill v. Morrill 1122, 1137 Morris v. Barclay 286 V. Barker 740 V. Clarkson 127 7 V. Colman 1759 v. Davies 991,1114,1540 V. Fort 368 V. Islip 1473 V. Havward 4G0 V. Keiley 1750 V. Morris 1738 v. Mowatt 1080,1206,1281 V. Nixon 838 V. Farker 734, 737, 738 V. Ross 695 V. Williams 960 Morris Canal &c. Co. v. Biddle 1 786 V. Dennis 1723 r. Jersey City 1766, 1769 Morrison v. Bcckwith 1759 365, 857, 882 1238 71, 75, 489 643 240, 297 Morrison v. Hart V. JNIcLcod V. Morrison V. Turnour Morrow v. Lawrence Morse v. Buckworth 592 V. Earle 87 V. Hovey 183, 749 V. Machias Water Power Co. V. Roach 873 V. Sadler 218 r. Slason 849 ]\Iorshead v. Frederick 1283 Mortimer v. Copsey 448 V. Cottrel 1737 V. Fraser 568, 627 V. Orchard 385, 840, 856 Mortlock V. Buller 1004, 1012 V. Leathes 1821 Morton v. Grenada Academies 583, 730 V. White 877 Mortone v. Grenada Academies 573 Morver v. Orr 763 Mosby v. Haskins 1728 Moseley v. Armstrong 838 V. Bouch 193, 194 V. Cocke 1000 V. Gassett 834 V. Moseley 962 V. Virgin 1482, 1764 Moses V. Murgatroyd 1489 Mos\ey v. Ward 1492, 1493 Moss, In re 1870 V. Baldock 1555 V. Buckley 497 Mostyn, Lord, 'v. Spencer 927 Motley V. Downman 1754, 1755 Mott V. Harrington 1247, 1300, 1301, 1302 V. Rockway Railway Co. 1096 Mottemp V. London Assurance Co. 193 Motteux V. Mackreth 405 Moulin V. Ins. Co. 134 Moulson V. Hargrave 890, 921, 938 Mounce v. Byars 781, 1091 Mountford v. Scott 699 V. Taylor 740 Mouni^ovte, Ex parte 1394,1709 Mountnorris, Earl of, v. White 1763 Mount V(>rnon Bank i». Stone 336 IVIourilyan, In re 1059, 1060, 1873 INIousley v. Basnett 658 INIowatt V. Graham 958 Mower t'. Kip 1252 JMowry i'. Bishop 1259,1260 Muckeston v. Brown 569 i\Iu(ld V. Suckermore 1119 ^huVw, Ex parte 687 Muldron v. Du Base 797, 798 INDEX TO CASES CITED. Ixxxvii Mulholland r. Ilcndrick 853 Mullett V. Christmas 28 Mullikiu V. MuUikin 1280 Mullins V. Townscnd 1274 Mulock r. Miilock 564, 1091, 1111 Mumfbrd v. Miimford 46 y. ]\Iurray 89,116 Munch V. CockereU 240, 241 Munday v. Knight 3G5 V. Shatzell 396 Mundy V. How, Earl 1404 V. Mundy 1122, 1139, 1140 Munoz V. De Tartel 176 Munson r. Kced 1087,1091 Murdock's Case 781, 782, 1735, 1743, 1772 Murdock V. Ratcliff 352 Murkle v. Murkle 766 Murphcy v. American Life Ins. Co. 1540 Murphy v. Clark 318, 388 r. Oldio 37,40,173 V. AVork 890, 938 Murray, In re 1856 V. Ballou 701, 703, 1462 V. Barbe 147 V. Barlow 194 V. Blatohford 841, 1025, 1042, 1043, 1700 r. Bogue 1751 t;. Coster 733, 734 V. Finster 701, 702 V. Elibank, Lord 91, 99, 102, 1595 V. Hay 306, 348, 305, 351 V. Lvlburn 194 V. Phillips 1462 V. Schooner Betsey 47 . V. Toland 690, 692 V. Vipart 440 V. Walter 1376, 1377 Muse V. Edgerton 112 Musgrave v. Medex 311, 1816 V. Parry 67 Musgrove v. Nash 1442 Mussell V. Cooke 681 Mussie V. Graham 1629 Mussina v. Bartlett 452, 488 Mutter V. Channel 1595 Myers V. Bradford 1317 V. Farrington 305 r. Myers 89,90,1251,1259, 1260, 1404, 1453 V. Raymond 1281 V. United Guaranty &c. Co. 273 Mynde v. Francis 611 Myrick v. Adams 449 N. Nail V. IMobley 348 V. Punter 228, 782 Nalder v. Hawkins 70 Nanney v. INIartin 112 Napier v. Efhngiiam, Lord 167, 169 Sir J., V. Howard, Lady of Effingham 167, 168 V. Napier 96, 785 V. Staples 1221, 1222 Nash V. Dillon 1497 V. Evangelical Lutheran Church, Rector of 1 34 U.Nash 110 U.Smith 285,288,294,398,611, 1665, 1666, 1670, 1672 Nasom v. Clarkson 1249 Nassear v. Ainold 940 Natz V. McPherson 702 Navuli'haw v. Brourigg 675 Naylor v. Byland 483 Neafie v. Neafie 684, 685, 1011, 1030 Nealu. Keel 1257 V. Ogden 843 U.Robinson 1228,1229 Neale v. Bealing 1071, 1437 V. Hagthorpe 249, 729, 736, 834, 1237, 1241 V. Morris 501 u. Neale 1724 Neate v. Latimer 1381 V. Pink 1431 Needham v. Needham 476, 506, 1043, 1835 V. Smith 1564, 1565 Needier v. Deeble 275 Needles v. Needles 107, 112, 115, 117 Neely v. Anderson 286, 287 Neilson v. Churchill 184 V. Dickinson 843 Nell u. Snowden 1112 Nelson v. Booth 1250 V. Bridport 1194 V. Dubois 370 V. Dunn 1649, 1653 V. Hill 352 V. Oldfield 688 V. Ponsford 737 V. United States 953, 962 Nerot V. Burnand 1549, 1550 Nesbill V. Dellam 748, 785, 786 Nesbitt V. St. Patrick's Church 502 Nesmith v. Calvert 365, 877 Nettleship v. Nettleship 93 Nevil V. Johnson 867 Neville v. Demeritt 840, 886 Nevinson v. Stables 1557 Ixxxviii INDEX TO CASES CITED. Nevitt V. Bacon New V. liarne V. Jones V. New Newall V. Wilson r. Writrht 1011 739 1233 149 1748 281 Newark Plank Road Co. v. Elmer 1010, 1785 Newbold V. Ridgeway 1140 New Britain v. South worth 182 Newburiih, Earl of, v. Newburgh, Countess of 1096 Newbui'gh &c. Turnpike Co. v. Mil- ler 1725, 1777 Newcomb v. Clarke 189, 334 Newell V. Newton 568 New Enijland Bank v. Lewis 640, 740, 841 434 653 1613 1042 Newenham v. Pemberton Newdigate v. Johnson V. Newdigate Newhouse v. Mitford New Jersey v. New York 19, 123, 436, 557, 564 &c. Co. V. Ames 213 Protection and Lombard Bank v. Thorp 25 Newkirk v. AVillett 598 Newland v. Champion 332 V. Glenn 1030 V. Horsman 688, 952, 975 V. Rogers 345 New London Bank v. Lee 229, 292, 294, 574 Newman v. Auling 1255 V. Godii-ey 136, 144, 192, 296, 301, 334 V. Hodson 325 V. Hutton 706 V. James 842 V. KendaU 921, 970 V. Norris 1206 V. Wallis 721, 722 V. White 713 New Orleans G. L. & B. Co. v. Dud- ley 683,1085,1087,1094,1112 Newsham v. Gray 795 Newsome v. Bowyer 87 V. Shearman 1515 Newton V. Bennet 1454, 1495 V. Chorlton 1704, 1707 V. Egmont, Earl of 253, 266, 274, 625, 627 Lord 288 V. Foot 927 V. Ricketts 997 V. Swasey 371, 682 V. Thayer 615, 630, 827 New York v. Connecticut 19 New York Printing Co. v. Fitch New York Chemical Co. v. Flowers el ux 141, 503, 504, 767, 785 New York Fire Tns. Co. v. Ely 25 New York Ice Co. v. N. W. Ins. Co. 388 N. Y. & N. II. R. R. Co. V. Schuy- ler 609 1736, 1772 Niblett V. Daniell 879 Nice V. Purcell 1087, 1091 Nichol V. Vaughan 1092, 1093 Nicholas v. Nicholas 1728, 1729 Nichols V. Perrv Patent Arm Co. 1406, 1407 u. Roe 578,1722 V. Ward 505 Nicholson v. Faulkiner 1497 V. Haines 1457 V. Knapp 1758 V. Knowles 1662, 1666 V. Norton 1861 V. Peile 580 V. Pine 1414 V. Wilbour 1397 V. Wordsworth 1484 Nickson v. Richardson 1800 Nicol V. Vaughan 848 NicoU V. Huntington, Trustees of 1463, 1480, 1777 V. Roosevelt 1619 Niell V. Morley 83 Nightinsale v. Lawson 1231 Niles V. Anderson 565, 56 7 V. Williams 580 Nimmo v. Commonwealth 1232 Nisbet V. Murray 1503, 1504, 1505 Noad V. Backhouse 437 Nobkissen v. Hastings 633, 722 Noble V. Garland 570, 944, 945 r. Martin 1105 V. Meymott 1489 U.Wilson 1320,1321,1787, 1788 Nodine v. Greenfield 187, 222 Noe V. Gibson 1433 Noel V. Fitzgerald 970 V. Kinw 1654, 1655 V. Robinson 1554 V. Ward 323, 704 Nokes V. Seppings 1822 Nolan V. Nolan 436 Noland v. Turner 210 V. Urmston 1629 Noonan v. Lee 1058 V. Orton 887 Norbury v. Calbeck 1495 V. Meade 1547, 1579 Norfolk, Duke of, v. Worthey 189 INDEX TO CASES CITED. Ixxxix Norman v. Roberts 1406 Norman ville v. Stanning 896, 1786 Norris v. Lee Neve 1128,11 34, 1 1 38, 1630, 1638, 1639, 1641 V. Norris 1487 North V. Perrow 1 788 V. Stafford, Earl of, 609 North American Coal Co. v. Dyett 1402, 1556, 1560, 1657 Northam, Ex parte 35 North Dunham Railway Co. v. Al- lison 418 Northeastern Railway Co. i;. Mar- tin 575, 1721 Northey v. Northey 250 r. Pearce 1766 Northop V. Wright 869 North River Bank v. Ropers 426 North River Ins. Co. v. Holmes Northwestern Bank v. Nelson 628 Northup 0. Hatch 590, 595 Norton v. Cooper 1243, 1243, 1472 V. Steinkopf 823 V. Talmadge 1648 - V. Turvill 667, 727 V. Warner 736, 738 V. White 812 V. Woods 136, 769, 1486 Norway v. Norway 1512 u. Rowe 747,1196,1736 Norwood 0. ^Manning 1254 V. Norwood 842 Noud V. Backhouse 1423 Nourse V. Finch 1501 Novosielski v. Wakefield 1019 Noyes v. Sawyer 187, 204, 406 Noysomhed, The Danish Ship 578 NuUington v. Fox 1754 Nunes v. Jaffray 438 Nunn y. Harvey 1404 Nurse v. Bunn 835 Nusbourn v. Stein 1426 O. Oakley v. O'Neill 502 V. Patterson Bank 1406 Oats I'. Chapman 627 Obaldeston v Askew 1214 Obert y. Obert 1123 O'Brien v. Bowes 1086 V. Elliott 841 " V. Heeney 285 V. Mahon 1616 V. Manders 479,481 V. O'Brien 1738 V. Stephens 1046 O'Brj'an v. O'Bryan 1115 k* O'Callaghan v. Cooper 1491, 1495 V. Murphy 921 Ocean Insurance Co. v. Field 550, 591 O'ConncU v. Macnamara 1615 O'Connor v. Cook V. Debraini V. Malone r. Richards Odell V. Curren V. Hart 0;{, 194 V. Root .370, 6.S2 V. Schermerhoru 41 fS V. Strong 148 Openheim v. Leo Wolf IC. Coon 811 Pelly V. Wathen 1857, 1860 Pember v. ]\Lathers 840, 843, 845 Pemberton, Ex parte 1857, 1871 V. Pemberton 873, 1111, 1112, 1113, 1119, 1120 V. Riddle 195 V. Topham 1513 Pender, In re 1862, 1865, 1873 Penderil v. Penderil 972 Pendleton v. Bank of Kentucky 25 V. Eaton 1480 V. Evans 500, 506, 507 V. Fay 1607,1613, 1620, 1626, 1638, 1644, 1645, 1657 Pendleburv v. Walker 613 Penfold I?. Nunn 199 V. Ramsbottom 621 Penn v. Baltimore, Lord 21, 259, 1731 V. Craig 1269 V. Tolleson 1267, 1284, 1290 Pennell v. Roy 1 732 Penniman v. Norton 1588, 1589, 1602 Pennington v. Beechey 644, 702 V. Gittings 842 V. Governor 395 V. Muncaster, Lord 1305, 1315 Pennock v. Freeman 670, 948 Penny v. Parker 1716 V. Watts 699 Penrice v. Parker 590 Pensenneau v. Pensenneau 388 Penvill V. Luscombe 687 People V. Bennett 1055 V. Brown 1712 V. Coidilin 44 V. Craft 434 V. Davis 981 People V. Elmer 463 V. Mather 591, 980 V. Mcrcien 1395 V. New York Common Pleas 1861 V. Norton 1427 V. Rogers 1062 V. Spaulding 1683, 1785 V. Sturtevant 1785 V. Wheeler 463 Perceval, Lord and Lady, v. Phipps 1 753 Percival v. Stamp 1814 Perine v. Dunn 684, 1011 V. Swaine 143, 767, 785, 961 Perishal v. Squire 41 Pcrkin v. Bradley 291 V. Proctor 65 Perkins, In re 1865 V. Bradley 53, 138 V. Ede 1274 V. Fourniquet 1007, 1568, 1569 V. McGavock 1461 V. Munchin 1098 Perkinson v. Trousdale 733 Perkyns v. Baynton 1259 Perrot i;. Perrot 1735 Perry v. Barker 281 V. Knott 211, 268 V. Marston 675 V.Parker 1733,1741,1772 V. Phelips 1630, 1632, 1633, 1637, 1644, 1646, 1718 V. Phillips 1026 V. Truefit 17.54 V. Walker 39, 702 V. AValton 701 V. Weller 562 Perryclear v. Jacobs 116 Person v. JNIerrick 207 V. Nevitt 1626 Pesheller v. Hammett 625 Petch V. Dalton 258 Peterborough v. Norfolk 866 Peters v. Rosseter 1020 Peterson, Matter of 1856 V. Poignard 294 Petley v. E. Co. R'y 1771, 1772 Petre v. Petre 699 Pettes V. Brigham 849 Pettibone v. Derringer 882, 940 Pettit V. Chandler 740 Petty V. Langdale 360 V. Maleer 84 Peyton v. Bond 75 V. Green 1229 V. McDowell 1463 Pfeiffer V. Riehn 1115 Pfeltz V. Pfeltz 1036, 1040, 1637 Phelps V. Ganow 631 INDEX TO CASES CITED. xcm Phelps V. Green 1013, 1122, 1123, 1136, 1139 V. Ilartwoll 847, 849 V. Peabody 1744 V. Phelps 434 V. Prothers 782 V. Sproule 247, 691 Philadelphia, Mayor of, v. Elliot 1848 Philippo V. IMuniiinjrs - 677 Philips V. iiarbaroux 1745 V. Clark 1602 V. Darbic 1624 Philling V. Edwards 1673 Phillips V. Atkiiisoa 1421 V. r.eltk-n 693 V. Boardman 1743 V. Carew 398 V. Davies 788 V. Evans 1386, 1387 V. Ford 847 V. Goding 421 V. Hunter 58 V. Kingfield 980, 981 V. Lanohorn 718 V. Phillips 575 V. Prentice 688 V. Prevost 734, 736 V. Kichardson 842 V. Sinclair 587, 664 V. Stephenson 1063 V. Thompson 970, 1000, 1014 V. Wesson 286 Phipps V. Budd 516 V. Henderson 1196 Piatt V. Oliver 630, 640, 706, 721 Pickard v. Mattbeson 1042, 1043 V. Roberts 94 Pickering v. Pickerinfj 692 V. Stamford, Lord 1554 Pickett V. Chilton 826, 1015 V. Hewlings 1326 V. Logtion 1038, 1039 Pickford V. Brown 1 5 9 2, 1 6 04 V. Hunter 657, 660 V. Young 516 Pickle u. Pickle 173 Picquet v. Swan Pidding v. Franks V. How Piddock V. Brown Piddocke v. Smith Pierce v. Burnham V. Gates V. Nichols V. Thorn eley V. Watkin V. West V. Wilson Piercy u. Adams Pierpont v. Fowle 574, 580, 615, 1013 Pierson v. Catlin V. Clayes 840, 841 V. Culler 840 V. David 223, 600, 685 V. Ivey 668 V. Meaux 736, 834 V. Kobiuson 265 V. Smith 112 Pieters v. Thompson 744 Piety V. Stace 1493 Pigg V. Corden 1022 Pigot,/nre 1797 V. Stace 714 Pigott V. Croxall 978, 979, 980 Pike V. Hoare 1089 V. McBratney 449 Pilkington v. Himsworth 755, 1381 Pilkinton v. Gotten 1299 Pillan V. Thompson 889, 900 Pillow V. Pillow 384 V. Shannon 701, 702, 961, 962, 1564 V. Thompson 1744 Pillsbury v. Dugan 1015 Pindar V. Smith - 1098,1105 Pinder v. Morris 1861 Pingrie v. Coffin 887, 918, 943, 982 V. Hodges 1106 Pinkard v. Smith 114 Pinkerton v. Barnsley Canal Co., The 1684 Pinkus V. Peters 264, 1609 Pinnock v. Clough 1480 Pinson v. Williams 850 Pipe V. Bateman 182 Piper V. Gillans 806 Pinkus V. Peters 264, 1609 Piquet V. Swann 432, 441 Pisani v. Lawson 43 Pitcher v. HeUiar 1410 Pitt V. Arglass, Earl 1628 V. Brewster 247 V. Cholmondely 692 V. Hill 687 V. Hunt 118, 119 286 V. Mackreth 1313, 1314 1120 V. Page 1546 1755 V. Snowden 1437 1169 Pitts V. Hooper 736, 768 150, 767 V. Mower 189 86 V. Short 164 841 V. Tilden 1252 1004, 1005 Planters' Bank v. Fowlkes 1277 115 Plaskett V. Preeby 154 873 Piatt V. Button 1749, 1772 415, 826 V. Gilchrist 1759 1563 V. Judson 606, 607 371 V. Oliver 642 XCIV INDEX TO CASES CITED. Piatt V. Squire 187, 200, 205, 410, 420, 1467, 1485, 1486 Flavor v. Anderson 28 Plavtbrd v. lloarc 1482 Pleasants v. Glasscock 884, 576 V. Logan 406, 1607 V. Ross 695, 1110 P. & M. Bank v. Dundas 1631, 1637 Plomer r. Plomer 142 Plume V. Beale 688 Plummer v. May 296, 300, 656 Plunket V. Joice 423 V. Penson 280, 289, 638 Plunkett V. Cavendish 647 V. Joice 405 V. Lewis 1318 Plvmouth, Countess of, v. Bladon 658, 684, 821 Podmore v. Gunninor 1412 V. Skipwith 783 Pogson ih Owen 183 Poindexter o. Blackburn 111 V. Jeffries 89, 101 Polk V. Gallant 192, 193 Pollard V. Yoder 1257 Pollock i,\ Lester 1740 Pomeroy v. AVinship 1087 Pomfret, Earl of, y. Windsor, Lord 671, 879 Ponder y. Cox 1723 Pool V. Morris 97 Poole V. Lloyd 570 Pooleyy. Roy 1202 Poor V. Carlton 1716, 1768, 1770, 1775, 1776, 1787, 1788 Poore V. Clark 202, 203 Pope?;. Curl 1752,1753 V. Duncannon 1722 V. Lemaster 1015 V. Malone 201 V. Stansbury 608 Popham V. Baldwin 809 Poplin V. Hawke 871 Portarlington, Earl of, v. Darner 1696, 1718 Lord, V. Graham 439 V. Soulby 728, 734, 1731, 1732, 1756 Porter v. Bank of Eutland 838 r. Cox 61 V. Hill _ 671 V. Neckervis 22 V. Stjencer 398, 576, 1800, 1801, 1805 V. Vaughn 809 Portland, Countess of, r.Prodgers 86, 140 Portman v. Mill 1215 Portsmouth, Earl of, v. Effingham, Lord 1638, 1739 Portsmouth, Earl of, v. Fcllowes 354 Post V. Boardman 136 V. Kimberly 575 V. Leet 1266, 1285, 1290 V. Mackall 149 Postlethwaite v. Blythe 1858 V. Ilawes 242, 285 Poston V. Eubank 187 Potter V. Baker 1560 V. Barclay 1611 V. Chapman 1774 V. Gardner 225 V. Potter 837, 855 V. Webb 1252 Potts V. Leighton 1435, 1440, 1444 V. Levy 1742 v. Trotter 1315,1316 V. Tufts 971 Poulterer's Co. v. Askew 865, 867 Powell V. Bernard 29 V. Cleaver 872, 1102, 1395 V. Cockerell 608 V. Hopson 1548 i;. Kane 353,1689,1703 V. Martin 987, 988 V. Martyr 1482 V. Monson Manuf. Co. 1139 V. Powell 159 V. Powis, Earl of 351 V. Prentice 141, 143 V. Robins 159 V. Trotter 1244, 1472 V. Walworth 1144 Power V. Holman 58 V. Reeder 575 V.Walker 1750 Powers V. Heery 1735, 1736, 1770 Powlet, Earl, v. Herbert 1494 Powley V. Walker 1761 Powys V. Blagrave 1 738 V. Mansfield 335, 850 Poynes v. Cregh 305 Pratt V. Archer 426 V.Bacon 410,828,1517 V. Barker 406 V. Bank of Windsor 441 V.Brett 1735,1762 V. Taylor 652, 709 Prebble v. IBoghurst 1519 Prentice v. Kimball 285 V. Prentice 182 Prescott V. Everts 373, 374 V. Ilubbell 402 Prestige v. Pendleton 374 Preston v. Barker 1285 V. Carr 599 V. CoUctt 984 V. Grand Collier Dock Co. 236 V. AVilson 68, 578 INDEX TO CASES CITED. XCV Prevost V. Benett 857, 1466, 1485 Price V. Berrington 82, 83, 336 ,849, 1094 V. Carver m ), 158 V. Clavengcr 1787 V. Copner 675 V. Dewburst 1550, 1561 V. James 669 V. Keyte 1633 V. Methodist Ep is. Church 1770 V. Moxoii 1290 V. Ljtton 836, 1165 V. Price 703, 1095, 1285, 1287, 1472 V. Shaw 1222 V. Tvson 741 V. Webb 495, 563 V. White 1434 V. Williams 694 Priehard v. Hicks 249 Prideaux v. Prideaux 1288 Priest V. Hamilton 69 Priestly v. Wilkinson 1467 Prince v. Cooper 1364 V. Hey in 669 V. Howard 1025 V. Smith 1225 Prior V. White 31 Pritchard v. Draper 1456 1600 V. Fleetwood 1415 V. Foulkes 912 V. Hicks 209, 1489 Probate, Judge of, v. j ileydock 1252 Proctor V. Farnham 1284 V. Ferebee 1045 V. Reynol 1078 V. Webber 23 Protheroe v. Forman 687 1723 Prout V. Underwood 740 Providence Bank v. Wilkinson 1659, 1664 Provost V. Gratz 1559 Prutzman v. Pittsell 765 Pryor v. Hill 116 Pugh, Re 1863 V. Bell 670 V. Holt 1011 V. Vaughan 1736 Pulham V. Christian 1007 Pullen V. Rawlins 874 V. Smith 731 Pulley V. Hilton 1098 Pullian V. Christian 1519 Pulteney, Sir W., v. Shelton 441, 1761, 1784 V. Warren 1765 Punderson v. Dixon 1025 Purcell V. McNamara 979, 1147, 1163, 1166, 1171 , 1172 1184 1313 Purcell V. Purcell Purdew v. Jackson Purefoy v. Purefoy Pusey V. Clemsen V. Desbourie, Sir E. V. Wright Puterbaugh v. Elliott Putnam v. Putnam V. Ritchie V. Sweet V. Valentine Plyle V. Cravens Pyle V. Price Pym V. Insall Pyncent v. Pyncent 221, Pyrke v. Waddingham 840, 841 113 338 1233, 1821 632,720,1724 840, 841, 847 629 1467, 1588 1400, 1401 27, 235, 306 1736 88 287, 614 1368 222, 699, 912 1004 Q. Quackenboss, Ear par^e 1694 Quackenbush v. Leonard 1010, 1143, 1621 V. Van Riper 1 788 Quaman v. Williams 1797 Quantock v. Bullen 165 Quarles v. Quarles 1023 Quarrell v. Beckford 1239, 1242, 1249, 1410, 1411, 1451, 1516 Quarrier v. Carter 1020, 1630 Queen v. Proper 44 Quin V. Bodkin 39 Quince v. Quince 247 Quinn v. Brittain 1241, 1411 V. Green 1661, 1665, 1669 V. Patton 16G1, 1665 Quintz V. Quintz 1325 R. Rabbeth v. Squire Radburne v. Jervis RadclitF v. Rowley Radcliffe, Ex parte V. Fursman Radford v. Innes V. Roberts V. Wilson RafFerty v. King Ragan v. Echols Raincock v. Simpson Rainey v. Rainey Ram, Ex parte Ramey v. Green Ramkissenseat v. Barker Ramsbotton v. Freeman Ramsdall v. Craighill 724 1697 670 1426 600 1786 452 702 305 886 1437 1788 217 1611 43, 748, 758, 966, 1657 1426, 1773 1775 XCVl DJDEX TO CASES CITED. Ramsden t'. TTylton V. Lanjiley Ramsey i\ Brailstord Raniy v. Kirk Ranoliil" r. Parkins Raiul f. Mi'^Iahon 1724 1244, 1468 1005 1683, 1684 870 874 Randall v. ClR'sajx'ake &c. Canal Co. 694 V. Miimtord 60, 62 V. Phillips 841 V. Prvor 1082 V. Richford 973 V. Sonorer 1021 Randolph v. Dickenson 1588, 1626 V. Difkcrson 106 V. Randolph 665, 1641 V. Rosser 1458, 1544 Randle r. Adams 1134 Randon v. Cartwright 1632 Rands v. Pushman 1323 Rankin r. llarwood 660, 1718 V. Huskisfon 1760 V. Maxwell 834 Ransom, In re 1863 V. Davis 303 V. Samuel 990 Raphael v. Bird wood 770 V. Boehm 1249, 1250, 1260, 1495 Rashleigh v. Dayman 990 Rashlev v. JNlartin 1490 ' V. Masters 1464, 1488 Ratcliffe v. Wineh 659, 1718, 1719 Rathbone v. I':L'kfbrd 809 V. Warner 1776 Rattison i;. Hull 1296 V. Bishop 1775 V. Darley 1656 Rattsay v. George 39 Raven v. Kere 1393 Rawlins v. Powel 780, 1567 Rawnsley v. Trenton Mutual Ins. Co. 1406 Rawstone v. Bentley 1763 Ray V. 1071 V. Conner 1044, 1708 V. Conners 1696 V. Doughty 1091 u. Fenwick 194 r. Oliver 1266 V. Walton 889 Rayley v. Best 201 Raymond v. Isham 1257 V. Simonson 665, 713 Rayner v. Castlee 664 V. Julian 612 V. Oastler 675 V. Pearsall 665 V. Stone 1765 Raynes u. Wyse 1804 Reab v. McAllister 1251 V. Consequa 425, 756, 1774, 1775 V. Cramer 383, 384, 387 V. Davis 1786 V. Prest 889, 900 V. Read 1063, 1139, 1802 Reade r. Sparks 1484, 1486, 1490 Reading v. Ford 826 Reay's Estate, Re 877, 878 Rector v. Mark 1251 V. Rector 839 Redding v. Wilkes 370 Redferm v. Sowerby 1860 Redfield v. Genesee Co., Superv. of 1663 Redmond v. Dana 351 V. Dickerson 567 Reece r. Reece 1025 r. Taylor 1052,1799 Reed v. Bank of Newbury 574 V. Brooks 1283 V. Clarke 574, 882 V. Conococheque Bank 25 t;. Dews 1744,1770,1774,1775 V. Harris 182 r. Jones 1219,1226,1248 V. Kent 1658 V. Noe 1004, 1005 V. Reed 1241, 1243, 1247, 1250, 1259, 1300 V. Rens. Glass Manuf. Co. 1251 V. Warner 748 Rees V. Evans 353 V. Lawless 834 V. AVaters 89 Reeve v. Attorney-General 125, 126 V. Dalby 105 V. Hodson 490, 863, 1099, 1100, 1118 V. Parkins 1752 Reeves v. Adams 297 r. Baker 812 V. Cooper 1726 Regina v. Ball de Bewdley 1097 V. Chapman 909 Reid u. Gifford 1743,1787 V. Lan^lois 1376 V. Middleton 1432, 1433 V. Vanderheyden 209, 1541 Reily, ^x- jt^ar/e 1433 Remmant, In re 1873 Remsen v. Remsen 1160, 1180, 1183, 1184, 1218, 1225, 1303 Rendall v. Rendall 1422 RendcU v. Carpenter 667 Rennell i>. Kimball 1322 Renvoize v. Cooper 186, 208, 214, 1018 Ren wick v. Macomb 187, 274 V. Wilson 402, 425, 426 INDEX TO CASES CITED. XCVll Repplicr V. Buck Respass v. McClanahan 383 163, 1639, 1641 V. Morton 1564 Requa v. Rea 1279, 1285, 1290 Revere v. Boston Copper Co. 134 V. Boston Cotton Co. 1767 Revolk V. Kraemer 1727 Rex r. All Saints 144 V. Bathwick, Inbab. of 144, 870 V. Cliviger 144 V. Fowler 9, 173 V. Gillespie 363 V. Grosvcnor, Earl 1740 V. Watkinson 603 V. Wyndham 136 Reynell v. Sprye 1391 Reyner v. Julian 344 Reynolds, In re 82 V. Jones 755 V. Morris 856 V. Nelson 805 V. Phan 843 V. Pitt 1764 Reynoldson v. Perkins 261, 262, 1016 Rhea v. Rhenner 86 Rhode Island v. Mass. 19, 631, 633, 716 Rhodes V. Biy the 1260 V. Cousins 1801, 1803, 1805, 1811, 1812, 1813 V. Ibbotson 1355 Rice, In re 1856 V. Gordon 1386 t). Hale 398, 1800, 1801, 1806, 1811, 1813,1815 V. Peet 80 Rich V. Cockell 96 V. Thomas 1769 Richards i'. Barlow 1486 V. Chambers 94 ?;. Chave 1417 V. Cole 953 V. Cooper 207 V. Curlewis 825 V. Dadley 555 V. Davis 341 V. Evans 374 V. Jackson 598 V. Morris Canal &c. Co. 1209, 1210, 1313, 1314, 1316 V. Perkins 1413, 1422 V. Plevtel 1859 V. Richards 108, 213, 370 V. Salter 1660, 1663, 1671, 1673, 1674, 1677 V. Symes 1097, 1107 Richardson v. Bank of England 1827, 1830 V. Golden 913, 961 VOL. I. i Richardson %\ Hastings, 341, 1378 V. Horton 1306, 1309 V. Ilulbert 240 V. Jones 1055, 1080, 1543 V. Miller 70 V. Richardson 39, 40, 411, 672 V. Ward 1446 Richmond y. Gray 373, 1004, 1005, 1045 V. Richmond 981 Rickard v. Talbird 1140 Rickett ?>. Johnson 1727 Rice V. Gaultier 806 Ridaboek v. Levy 1560 Riddle V. Bowman 1244 Ridgeley v. Warfield 633 Ridge way v. Toram 1644, 1645 Ridgley v. Riggs 368 Ridgway v. Darwen 1226, 1227 Ridifer v. O'Brien 1223, 1322 Ridler y. Ridler 1180 Ridley v. Obee 781 Ridout V. Plymouth, Earl" 1428 Rigby V. Macnamara 1284, 1292 V. Strongways 815 Rigg V. AVall " 987 Riggs V. Dickinson 1130 V. Murray 1548 Ringgold's Case 1540, 1548 Ringgold V. Jones 961, 962, 1087, 1681 V.Ringgold 1023,1252,1259, 1260, 1453 V. Stone 333, 721 Ringrose v. Todd. 1111 Ringwalt v. Ahl 1103 Ripley r. Moysey 1503, 1504 V. Warren 596 V. Waterworth 256 V. Woods 115 Ripon V. Hobart 1733 Ritchie v. Aylwin 633 V. Broadbent 94 V. Williams 821 Roach V. Gardner 1397 V. Gar van 1397 V. Rutherford 1005 Roake v. Kidd 1005 Roath V. Smith 214 Roane v. Pickett 267 Bobbins v. Robbins 161 Roberdcau v. Rous 679, 609 Roberts, Matter of 1434 U.Anderson 866,1769,1776, 1787 V. Eberheart 341, 1419 i\ Great Western Railway Co. 224 V. Hartley 637, 639, 718 XCVUl INDEX TO CASES CITED. urts !'. Jones 715 V. Kerslake 1465 V. Kudin 693 V. Lloyd 39 V. Marchant 1563 V. Peavey 1651 f . Roberts 1290,1758 V. Salisbury 840,843, 1543 V. Sooncs 1465, 1467 V. Stanton 151 V. Tcnnell 834 V. Totty 1549 V. Walker 1505 V. Williams 374, 1310, 1476 Robertson v. Bingley 570, 615, 642, 719, 792, 1543 V. Crawford 500 V. Londonderry, Lord 607 V. Miller 505, 507, 509, 1039, 1040 V. Robertson 35, 36 V. Stevens 345, 349 V. Wilkie 46 Robins v, Hodgson 281 Robinson v. Archer 1226 V. Barbour 871 V. Bland 1221 V. Byron, Lord 1736, 1743, 1768, 1774, 1786 V. Cooper 163, 835 V. Cropsey 1462 V. Camming 1225, 1249, 1255 V. Elliot 1499 V. Guild 349, 351, 648 V. Hook 586 V. Lewis 1555 V. Litton 67, 1734 V. Nash 495 V. Newdick 1037 V. Pett 1232 V. Preswick 1735 V. Reynolds 85, 86, 140 V. Robinson 1615 V. Rokeby, Lord 436 V. Rosher 796 V. Sampson 839, 1559, 1627 V. Scotney 1226 V. Smith 286, 289, 292, 584, 590, 614, 631, 1766 V. Stewart 840 V. Taylor 1553 Robinson v. Thompson 6 1 1 V. Townsend 506 17. Turner 515,516 V.Wood 1309, 1799 V. Woodgate 740 Robson, In re 126 V. Cranwell 1038 Rochdale Canal Co. v. King 1391 Roche V. Hart 1492 V. MorgcU 386, 636, 638, 643, 693, 694 Rochester v. Anderson 386 Mayor of, v. Curtiss 1771, 1772 Corp. of, V. Lee 1012, 1013, 1117, 1545 Rochfort ?;. Ely, Earl of 1569 Rock V. Cook 1056 Rockwell V. Folsom 956, 957 Roddam v. Hetherington 79, 808, 1810, 1811, 1817 Rodgers v. Jones 423 V. Nowill 1782 V. Rogers 788 Rodman v. Forline 1569 Roe V. Gudgeon 1831 Rogers v. Abbott 1 748 V. Acaster 117 V. Aucaster 113, 121 V. Cincinnati 1730 V. Cruger 161,^747, 765, 1578 V. Danforth 1768 V. De Forest 426 V. Goore 988 V. Grove 830 V. Holly 1544 V. Hosack 1544 V. James 328 V. Kirkpatrick 478 V. Linton 176, 212 V. McMacham 1648 V. Mitchell 826, 841, 842, 999 V. Nowill 1097 V. Paterson 696 V. Rathbun 389 V. Rogers 294, 402, 403, 420, 426, 427, 1024, 1025, 1043, 1088, 1453, 1460, 1520, 1707 V. Ross 1415, 1501 V. Solomons 407, 1606 V. Thomas 849 V. Traders' Ins. Co. 193 u. Vosburg 659,817,819,1720 Rolfe V. Harris 1764 V. Peterson 1761 Rolleston v. Morton 275 Rollins V. Forbes 582 Rolls (;. Miller 1767 V. Yate 188 Romilly v. Grint 40 Romncy v. 758, 943 Rookes V. Rookes 1324 Roosevelt v. Commellin 42 V. EUilhorp 1463 Roper r. Wren 1257 Roscarrick i'. Barton 261 Roschetti v. Power 474 INDEX TO CASES CITED. XCIX Rose V. Calland V. Clark V. (jatiiicU V. King V. Myiiatt V. Page V. Woodruff Ross, Ex parte V. Aglionby V. Car[)i'nter V. Colville V. Crary V. Laughton V. Page V. Ross 1481 193 571 423 3G5, 408 207, 267 500 6(J7 1092 406, 425 1062 209 1859 1736 1829 u. Rust 1011 Rotheram v. Fanshaw 1729, 1770 Rothschild V. Queen of Portugal 21 Rothwell V. Bonshell 83, 150 V. King 604 V. Rothwell 1821, 1822, 1823 Rougemont ?'. Royal Exchange Ass. Co., The 944, 945 Roundell v. Currer 1621, 1839 Roundlett v. Jordan 838 Rouse U.Jones 1718,1719 Routh V. Kinder 241 V. Peach 375 Rowan V. Bowles 335, 365 Rowe V. 954, 957 V. Bant 364 V. Brenton 863 V. Granite Bridge 1741 V. Treed 634 V. Wood 633,694, 696,1237, 1410, 1727 Rowland v. Garman 294 V. Sturgis 876, 880 Rowlands v. Tucker 1572 Rowlatt V. Cattell 1701 Rowley v. Adams 1177, 1180, 1182, 1191, 1343 V. Benthuysen 1540, 1544 V. Eccles 363, 628, 721 V. Ridley 479, 972, 1076 V. Van Benthuysen 1543 V. Williams 717 Rowton V. Rowton 682 Rowth V. Howell 1439 Royal 11. Johnson 1011 Royal Exch. Asso. v. 439, 944 Royall V. McKenzie 1320 Royce v. Tarrant 285, 288 Royle V. Wynne Ruckman v. Astor Rucker i'. Howard Rudd V. Spcare Rude V. Whitchurch Rufford V. Bishop 658, 819, 821 1235, 1246 1475 82 835 1298 RullufT, Ex parte 225 Run\bly v. Stainton 795 Rumney v. Maud 196 V. Mead 242 Rundell v. Murray 1749 V. Rion, Lord 1207 Runk V. St. John 1439 Rush ;;. Higgs 229, 1718 Rushworth v. Pembroke, Countess of 866 Russ t;. Wilson 1744 Russell V. Asby 1802, 1803, 181 2, 1817 V. Atkinson 978 V. Austin 1140 V. Blake 1241 V. Buchanan 1313 V. Clarke 288, 576 V. Copp 671 V. Craig 1589 V. East Anglian Railway Co., The 1073,1075 V. Jackson 1386 V. Loring 551, 574 V. McLellan 1154 V. Sharp 74, 75 V. Sharpe 152 V. Smithies .1238, 1240 u. Southard 1236,1239 Rutherford v. Dawson 1819 V. Douglass 1417 u. Metcalf 488,1782 V. Nelson 890, 921, 938 Rutland v. Paige 1647 Butter V. Baldwin 144, 145 Ryan v. Anderson 196, 304 V. Blount 1015 Ryckman v. Parkins 1436 Ryder v. Bentham 1742, 1767 V. Gower, Earl 1290, 1542 V. Inverarity 1000 Rylands v. Latouche 1614, 1616, 1625 Ryves v. Coleman 1453 V. Ryves 569, 576 Sabin v. Gilman 1798 Sackett u. Hill 1768 Sacketts' Harbor Bank v. Blake 27 Sackvill V. Ayleworth 238 Saddington v. Kinsman 113, 115, 116 Saddler v. Glover 708 Sadler v. Green 1560 Sagory v. Bayless 1 034 Sanistry v. Granimer 199 Saint Catherine Dock Co. v. Mantzgu 755, 919 INDEX TO CASES CITED. St. Clair v. Smith 151 St. Ffli.N; r. U:uilvin 1132 St. Albai.s V. Skipworth 1735 Saint er t'. Ferguson 17G3 St. John (\ Bosborough, Earl of 34 Lord, v. St. John, Lady 354 St. John's College v. Carter 1782 St. Luke, Parish ot", v. St. Leonard, Parish of 573 St. Ix:)uis Perpetual Ins. Co. v. Cohen 134 St. Mary Magdalen, Pres. of, v. Sibthorp 408, 423, 1567 St. Paul's, Minor Canons of, r. Cricket 684, 840 St. Paul's, Minor Canons of, o. Kettle 1094 St. Paul's, Minor Canons of, v. Morris 1111,1112 St. Victor V. Devereux 35 Sale V. Kitson 213 V. Sale 70, 1393 V. Saunders 121 Salisbury v. Baggot 686 Bishop of, y. Phillips 1132 Salkeld u. Johnston 1568 V. Science Sallee v. Duncan Salmon u. Clagett V. Dean V. Wooton Salter v. Scarborough Salters, Ex parte V. Tobias Salvidge v. Hyde Salway v. Sal way Same v. Sackett Sammes v. Rickman Sampson v. Hunt V. Sweltenham Samuda v. Furtado Samuel v. Jones Sanborn v. Kittredge V. Sanborn Sanders v. Druce V. Gale wood V. Godley V. Gray V. Iloare V. Howe V. King V. Page V. Pope Sandford v. V. Biddulph V. McLean V. Remington Sandilands v. luncs 610, 694, 703 843 382, 736, 747, 767, 842 636, 642 658 569 1709 633, 634, 635, 679 344 1440 778, 1610 1453 1020 605, 606 689 1487, 1488 365, 841 410 1355 1000, 1045 435 1281 586 924 632 641, 645 118 1764 1181 1189 1139 603, 659, 962 210 Sands c. Hildreth 1019 Sandys v. Long 263 Saner v. Deaven 812, 1617 V. Dewin 984 Sanford v. Head 1030, 1045 V. Sinclair 1427 Sanger v. Wood 659, 817 Sangosa v. East Ind. Co. 289 Sauster v. Foster 1745 Sargent v. Wilson 207 Sarslield v. Van Vaughner 337 Satterley v. Robinson 695 Satterwhite v. Davenport 772 Saum V. Stingley 373, 1631, 1632 Saumarez v. Saumarez 227 Saundei-s v. Frost 408, 414, 657, 1237, 1241, 1245, 1250, 1457, 1461, 1466, 1470, 1471, 1480, 1594 V. Gray 1280 V. Leslie 718, 847 V. Pope 1 763 V. Smith 1749 V. Walter 1330, 1332 Sauza V. Belche 569 Sauzer v. DeMeyer 677, 717, 720 Savage v. Brocksopp 845 V. CarroU 161, 163, 168,856, 1094 V. Carter 1652 V. Merriam 327 Savile V. Savile 1282, 1284 Saville v. Tancred 216 Savings Bank v. Benton 1099 Savory v. Dyer 394 Sawtelle v. Rawlins 56, 61 Sawyer v. Baldwin 88, 89, 91 961, 1201, 1203 501 613, 615 347 1254 1418 196, 927 V. Birchmore V. Sawyer Saxon V. Barkesdale Saxton V. Davis Sayer v. Austin Sayer v. Pierce V. Wagstaff Sayles v. Tibbitts, 198, 285, 334, 1011 Scaife V. Scaife 1117, 1465 Scales V. Nichols 752, 1565, 1566 Scanlan v. Houston 1260 V. Wright 44 Scarborough v. Burton 1457 Earl of, V. Parker 1494 Scargill v. Huny 529 Scarisbrick v. Skelmersdale 1629 Scarpellini v. Atcheson 108 Scarth o. London, Bishop of 325, 326 Scatturgood v. Harrison 1232 Scawin v. Scawin 296 Scliafrer v. Wilcox 945 Schackwell, Ex j)arle 1865, 1867 Scheetz's Case 1736 INDEX TO CASES CITED. CI Schell V. Schroder 1821 Schelinardine v. Ilarrop 186 ScheiR'lv ;;. Kllingwood 213 Schermorliorn v. liarliydt 227 V. Schieffer 1251, 1453 Schley V. Dixon 134, 1767 Schmidt V. Diteucht 304 V. Liinehouse 1257 Schofield V. Ileafield 158 School Dist. V. Blaisdell 25 Schoole V. Sail 186, 818 Schoonniaker »). Gillet 1782 Schnineirer v. Buchannon 345 Schroep[)el v. Redfield Schuyler v. Iloyle V. Pelissier Schwarz v. Wendell Sclater v. Cottam Scott V. Allett V. Ames V. Beecher V. Broad wood V. Carter V. Clarkson V. Crawford V. Dunbar V. Fenhoulett V. Fenwick V. Hancock V. Jailer V. Nesbitt V. Niuholl V. Nixon V. Platel V. Spashett V. AVarton V. Wharton V. Wheeler Scotts V. Hume Scouce V. Whitney Scouten V. Bender S. C. Railroad Co. v. Toomer Scribner v. Williams Scriven v. Tapley Scruocgs V. Driver Scudder v. Bogert 336, 337, 583 88, 111, 114, 117 1660, 1662 691 1468 786 1487 1413 664 783 826 1554 1477 256 857 668 1055 389, 1284, 1285 185 1005 1442 99 1732 1735 445, 1375 737 152 1596 1106 1565 102 244 742 V. Trenton Delaware Falls Co, 1091 Scudamore v. Stratton 188 Scurry v. Morse ' 245 Sea Ins. Co. v. Day 829 V. Stebbins 1408, 1410, 1436, 1688 Seal V. Brownson 1465 Sealy v. Laird 1809 Seaman, In re 1441 V. Hicks V. Kiffgins 1266, 1281 1284, 1288 Seaman v. Stou^hton ' 60 Searcy v. Moi-gan 155 Scaring r. Searing 111, 112 Scarle v. Colt 6 77 V. Lane 104 7 Sears v. Barnum 856 V. Bellingham 872 V. Carrier 345 V. Currier 351 V. Hyer 744 V. Jackson 799 V. Powell 294 Seaver v. Phelps 80 SebrinfT v- Mersereau 277 Seccombe v. Fitzgerald 1093 Second v. First Congrega. Soc. 885 Sedden v. Connell 27 Sedgwick v. Cleaveland 61, 171, 193, 194, 279, 1598, 1600, 1001, 1602, 1609 V. Watkins 1808, 1809 Seebor v. Hess 560, 1707, 1783 Seeley v. Boehm 408, 739 Seers v. Hind 1492 Seeyle v. Boehm 413 Seguin v. Maverick 1627, 1631 Seidler, Ex parte 31 Seilaz v. Hanson 31, 51 Selby V. Crew 590 V. Selby 1779 Selfu. Madox 1072 Sellas V. Dawson 61 Sellers v. Dawson 814, 1621 Sellon V. Lewan 720 Sells V. Hubbell 242, 250 Selway v. Chappell 974 Selwyn's Case 927 Semell u. Freeston 1723 Semmes v. Boykin 426 V. Mott 803 Semple v. London & Birmingham Railway Co. 56 Seneca Falls, Village of, v. Mat- thews 1769,1787 Senhouse v. Earl 597, 685, 699 Senior f. Armitage 1762 V. Pritchard 1716 Sentance v. Porter 1476 Sergison v. Sergison 1684 Serle v. St. Eloy 73, 423 Servis v. Beatty 700 Seton v. Slade 373, 789, 1005 Sevier v. Greenway 1470 Sewel V. Bridge 690 V. Freeston 1108 Sewell V. Johnson 1283 Seymour v. Delancey 1004, 1087 V. Hazard 398, 1801 1805 V. Nosworth 701 t* cu INDEX TO CASES CITED. Seymour v. Seymour 598 Shaokoll I'. Maraulay 944, 945 SlKU'ldi'toid V. llolni 1462 Shaetler i: Chambers 1236, 1237, 1240, 1249, 1250 Shaftesbury, Earl of, C;vse 1396 Lady, v. Arrowsmith 1383 V. Marlborough, Duke of 1423 Shaftoe v. Shaftoe 1802, 1809 Shakel v. Marlborough, Duke of 1411 Shales v. Barrington 184 2 Shamrock i\ Bratlstreet 120 Shannon i\ Marselis 1759 Sharon Canal Co. v. Fulton Bank 21 Sharp V. Ash ton 427 V. Carter 590, 1431 V. Ilullet 813 V. Roahde 1482 V. Kunk 886 V. Scarborough, Earl of 1252 V. Taylor 395 Sharpe y. Gamon 217 V. Hallett 813 Sharpies v. Sharpies 1501 Shaver v. Brainard 285 Shaw V. 434 V. Chester 1671 V. Ching 302 V. Coster 398, 1659, 1661, 1665, 1666, 1668, 1669, 1670, 1671, 1674, 1678, 1679 V. D wight 1728 V. Lindsey 919,935,971 V. Norfolk Co. R. R. Co. 213, 215, 269 V. Pickthall 1506 V. Rhodes 1442 V. Simpson 1265, 1266 V. Wier 1768 V. Wright 1063, 1067, 1069, 1070, 1071, 1432 Shearman v. Christian 1560 Shedd V. Garfield 378, 608, 683 Shedden v. Baring 945 Sheeler v. Spear 909 Sheffield v. Buckinghamshire, Duch. of 1 729 Shelburne, Countess of, v. Inchiquin, Lord 76 Shelbury v. Briggs 1843 Shelby v. Shelby 670, 854 Sheldon v. Fortesque 167 V. Rockwell 1473 V. Wildman 666 Shelley v. 956 Shellnian v. Scott 1788, 1789 Shelly V. Pclham 1437 117, 365 Shepard v. Shepard Shephard v. Guernsey 229 V. Merrill 406, 695 V. Ross County 1045, 1082 Shepherd v. Downing 961 V. Gwinnet 277 V. Harris 467 V. Lloyd 623 V. Thompson 924 V. Titley 1615 Sheppard y. CoUyer 1191 V. Duke 677 V. Elliott 1249 V. Lane 1629 V. Oxenford 1420 V. Smith 1493, 1495 V. Starke 209, 305, 1043 Shepperd v. Murdock 664 Sheratt v. Bentley 1512 Sheriff V. Axe 1232 V. Cox 1234 Sheril v. Young 1416 Sherman v. Beale 695 V. Burnham 105 V. Cox 274 V. Elder 96 V. Sherman 1805, 1806, 1811, 1812 V. Withers 666 Sherrill u. Harrell 1788 Sherwin v. Shakspeare 1032, 1480, 1564 Sherwood v. Bernidge 1274 V. Sutton 665, 670 Sheward v. Sheward 956 Shewen v. Vanderhost 667, 668, 1207 Shields V. Anderson 670 V. Barrow 289, 293, 388, 410, 1647 V. Boucher 1109 V. Bryant 151, 154, 163 V. Thomas 200, 351 Shine v. Gough 1487 Shipbrooke, Lord, v. Hinohinghook, Lord 1452, 1694, 1839 Shirley v. Ferrars, Earl 954, 956, 1154, 1258, 1309, 1553 V. Hagar 67 Shirt V. Westby 1258 Shobe V. Can 1252 Short V. Downer 501 V. Lee 1090 V. Mercier 591, 594 Shortley v. Selby 1205 Shotwell V. Smith 1408, 1411 V. Taliaferro 279 V. Trench 720 Shrewsbury School, Re 1712 Shubrick v. Gueward 1732 Shugart v. Thompson 374 INDEX TO CASES CITED. cm Shull V. Kcnnon 1130 Shute V. Gustin 991 Shuttleworth v. Howarth 1503 V. Layeock 339 V. Lonsdale, Earl of 1084 V. Lowther 1471, 1476 V. Noyes HO V. Shuttleworth 763 Shye V. Llcvvellen 1540 Sibbcring *'. Balcarrus 28 Sibert u. McAvoy 1115 Sicard v. Whale 46 Sic'kering v. Balcarras, Earl of 363 Sidden v. Forster 1165 V. Lediard 789 Sidebotham v. Barrington 1480 Sidgier v. Tvte 505 Sidney v. Iletherington 1781 V. Perry 687, 714 V. Ranger 1269, 1366 V. Sidney 851 Sieveking v. Behrens 1661, 1671 Sigal V. Phelps 105 Sikes V. Truitt 570 Silcock V. Rovnon 787 Silcock's Estate, In re 95 Silk V. Osborne 56 Sill V. Worswick 58 Sillman v. Bowen 1140 Silloway v. Columbian Ins. Co. 134, 228 Silver v. Kendrick 368 V. Norwich, the Bishop of 1409 1422 V. Stein 245, 1593 Silver Lake Bank v. North 25, 1244 Simes v. Duff 690 V. Smith 707 Simmons v. DuBarre 755 V. Gutteredge 1162, 1165 V. Hanover 185 V. Kinnaird, Lord 479, 1068, 1422 V. Same 1766 V. Tongue 1280 V. Wood 476, 498 Simms V. Guthrie 175 V. Thompson 1030, 1036 Simons v. ^lilman 327, 654 Simpson, Ex parte 353 V. Brewster 657, 798, 809, 1486 V. Burton 363 V. Chapman 1760 V. Downes 1627 V. Hart 1544 V. Howden, Lord 1722, 1777 V. Watts 1637, 1645 Sims V. Helling 525 V. Lyle 630, 639, 642 Sims V. Pidge Simson v. Davis Sinclair v. Jackson V. Price Singleton's Will, Singleton v. Gayle 1144 1788 339, 678 1107, 1108 1096 385, 507, 838 V. Singleton 1627, 1628, 1633, 1634, 1638, 1644 Sinnickson v. Bruere 1247, 1300, 1327 Siter V. Jordan 114 Sitlington v. Brown 747 Sitwell V. Herron 517 V. Meilersh 1278 V. Sitwell 1271 Skeal V. Spraker 273 Skeene v. Pepper 1210 Skegg V. Simpson 440, 467, 1060, 1835 Skerrit v. Birch 209 Skinner v. Bailey 336, 365 V. Dayton 916, 1763 V. Judson 590, 595, 734 Ex parte in re Lawford's Charity 1852 V. McDowell 682 Skinner's Co. v. Irish Society 1415 Skip ?;. Harwood 1406,1420,1783 Skipworth v. Westfield 1526 Skringley, In re 1 735 Skrymsher v. Northcote 1042, 1043, 1505, 1507 Slabordo v. Buckingham, Duchess of 1034 Slack V. Evans 356, 741 V. Walcott 1589, 1625 tj. Wood 1724 Slaney v. Sidney 1662, 1667 Slason V. Wright 841, 1647, 1653 Slatter v. Carroll 244 Slee V. Bloom 1318, 1326 V. Manhattan Co. 1466, 1470, 1471 Sleght V. Kade 52 Slingsby v. Boulton 1661, 1665, 1669 Sloan V. Little 736, 737 Sloman v. Kelly 691, 594 V. Walter 1763 Sloop Chester Case 47 Smales v. Chuyter 941 Small V. Atwood 190, 235, 304,421,729, 731 V. Boudinot 333 Smart v. Fleyer 1656 V. Hunt 675 V. McLellan 1282 Smedbridge v. Mark 1801, 1811 Smets V. Williams 336, 337, 583, 631 Smiley v. Bell 193, 194 Smith, Sir T., In re 82 V. Allen 565 V. Althus 1175,1176,1180 CIV INDEX TO CASES CITED. Smith V. Attorncy-Gc neral 323 Smith V. Lowry 1724 V. Aykwt'U 1756 i\ INIanning 1588 V. Babcotk 402, 721, 778, 779, V. IVIartin 1087 783 V. Mitchell 285 V. Bailey 1476 V. Mules 1760 V. Baker 830 V. Nethersole 1808 V. Baldwin 294 V. Palmer 151, 763 V. Ballatine 629 V. I'arke 439 r. Barber 1130 V. Pearson 38 V. Barnes 424, 623 V. Pettingill 1736 1737 V. Beaufort, Duke of 1379, 1382, V. Pilkington 1237 1250 1384 V. Potter 834, 843 V. Betty 845, 1115, 1116 V. Poyas 1738 V. Bijigs 911 V. Read 596 V. Blofield 493 V. llichnell 186 V. Britton 230, 286 V. Ryan 1723 V. Brush 1221, 1246 V. Sackett 183 V. Bryon 610, 778 V. Shane 843 V. Burnham 1, 79, 377, 406, 853 V. Smith 334, 782, 798 ,927, 1022, V. Butler Co., Commoners of 1132, 1302, 1318, 1410, ] 1413, 1423, 78 1501, 1503, 1556, 1571 V. Castles 30, 31 V. Snow 211 V. Chandos 1226, 1248 V. Spinolla 46 V. Chapman 274 V. Swamstedt 235 V. Clarke 377, 841, 851 V. Swansea Dock Co. 1706 V. Coffin 883 V. Sweet 96 V. CoUyer 1733 V. Target 1606 V. Corles 518 V. Thomas 1372 V. Cotton 154 V. Thompson 455 V. Crorn 1086, 1091, 1558 V. Todd 1254 V. Dearman 1117, 1465 V. Turner 991 V. E. I. Co. 607 V. Turrentine 294 V. Effingham 1873 V. Vanderhurst 1254 V. Eustis 1139 V. Webster 617 V. Fisher 734 V. Wells 984 I, 988 V. Floyd 74 V. West 242 , 826 V. Floyer 1658 V. WycofF 256 V. Goldsworthy 269 V. Yell 603 V. Graham 1182 Smithby v. Stinton 196 V. Green 1470, 1476 Smith's Case 80 V. Hammond 1664 Smith's Estate 113 ,668 V. Ilarley 196 Smithson's Case 1802 V. Hartley 782 Smithly v. Shuton 146 V. Haytwell 1756, 1772 Smyth V. Balch 1758 V. Henley 876, 997 V. Carter 1738 V. Hibernian M ne Co. 176 Snag's Case 701 V. Huntington 889 Snagg V. Fusell 1473 V. Jackson 1824 Snead v. McCoull 410 V. Jeyes 1419 Sneed v. Atherton 1133 V. Jones 338 V. Ewing 1088 V. Kane 116 Snelgrove v. Snelgrovc i 700, 701 , 702 V. Kempson 1729 Snelling v. Bryd 192 , 193 V. Kirkpatrick 920 V. Watrous 491 V. Laid 1715 Snowball v. Dixon 459 V. Lampson 1251 Snowden v. Snowden 449 V. Lasher 738, 740 Snowhill V. Snowhill 107, 109 ,111 V. Lloyd 1823, 1824 Snook V. Sutton 1400 V. Long 122 See. for Prop. Gosp. v. Hartland 183 V. Lowe 1419 V, New Haven 25 INDEX TO CASES CITED. CV Soc. for Prop. Gosp. v. Wheeler 27, 45 V. Young 26 Socket V. May 147 Sodeu V. Soden 335, 383 Sohier v. Williams 220, 222 So. Life Ins. & Trust Co. v. Lanier 305 Solly V. Greathead 1060 Soltan V. Du Held 1741 Somers v. Conolly 439 V. Torrey 353, 742 Somerville v. Mackay 1380 Sonnet v. Powell 1179 Sorrel v. Proctor 1494 South V. Leavy 1257 Southall V. 1656 u. McKeand 1108 Southard v. Rexford 591 South Carolina Bank v. Case 25 Southeastern Railway v. Brogden 575 Southey v. Sherwood 1751, 1752 South Sea Co. v. Bumstead 592 V. Wymondsell 680 Southern Steam Packet Co. v. Roger 434 Sowden v. INIarriott 1568 Sowerby v. Warder 490 Souzey v. De Meyer 615, 637, 640, 642, 698, 721, 722, 792 Spack V. Long 1454 Spain, King of, v. Machado 18, 19, 191, 303, 304, 323, 581, 1548, 1549 V. Mendazabel 19 Spann v. Spann 1042 Sparenburgh v. Bannatyne 47 Sparhawk v. Buel 66, 1567 V. Wills 1231, 1236, 1237, 1241, 1247, 1300, 1302, 1322 Sparks v. Liverpool Water Works Co. 1763 Spearing v. Lynn 1044 Spence, In re 1393, 1401 V, Allen 971 V. Dodd 840 V. Hog" 224 Spencer, In re 325 V. Allen 1056 V. Bryant 40, 1 74 V. Luttrell 604 V. Van Duzen 408 Spendler v. Potter 257 Spendlove v. Spendlove 1756 Sperling v. Rockfort 145 Spenier v. Fitzgerald 643l Sperry v. Miller 754 Spiller V. Spiller 1062 Spires v. Sewell 809 Spivey V. Frazer 785 V. Jenkins 289 Spofford V. Manning 615, 788, 792 Spooner v. McConnel 1771 Spooner v. Payne Spragg V. Binkes 1069 57, 59, 217 V. Comer 1648 Sprague v. Rhodes 583, 1740 V. Sprague Sprigg V. Albin Spring V. Gray V. Jenkins 448 365 665, 666 293 V. Sandford 1281 V. South Carolina Ins. Co. 1663, 1667 Springer v. Vanderpool 242, 250 Springfield v. Ollett 1483 Sprye v. Rennell 800 Spurling v. Rochfort 90, 95 Spurrier v. Spurrier 1838 Squire v. Pershall 1546 Squirrell v. Squirrell 34 Stace V. Mabbot 1108, 1111 Stackhouse v. Barnston 585, 887, 663 Stackpole v. Callaghan ■ 28 V. Curtis 1080 Stafford v. Brown 377, 459, 474, 513, 770, 772, 687, 1712 V. Bryan 586, 840, 1228, 1260, 1628, 1638, 1707 Earl of, V. Buckley 9 V. Bunn 481 V. Higginbotham 39 V. Howlett 408, 1594, 1595, 1606, 1610 V. London, City of 201 V. Mott 1254 V. Rogers 1317, 1324 Staffurth v. Pott 789 Stagg V. Beekman 1821 Staines v. Maddox 78 V. Morris 1461, 1480, 1482 Stainton v. Canon Co., The 333, 1414 V. Chadwick 1384, 1549 Stalling u. Goodloe 1634 Stamper V. Barker 114,116 Stamps V. Birmingham Railway Co. 782 Standen v. Edwards 1109, lil6, 1117 Standish v. Liverpool, Corp. of 1744 V. Parker 687 Stanfield v. Hobson 213 Stanhope v. Nott 604 Stanley v. Bond 560,1799 V. Hume 29 V. Kean 871 V. Robinson 726 Stannard v. Graves 1106 Stanney v. Walmsley 973, 974 Stansbury v. Arkwright 336, 374 Stansfield v. Habergham 1734, 1736 V. Hobson 675 Stanton v. Hatfield 1513 Stanyford v. Tudor 1163, 1164 CVl INDEX TO CASES CITED. Stapilton i\ Stapilton 73, 387, 550 Stapleton v. Conway 1255 Stapylton v. Peile 1818 V. Scott 389 Stark V. Thompson 991 Starkio, Kx parte 1404 Starton v. Bartholomew 70, 1393 State V. Boswell 980 V. Chirk 66 V. De Wolf 882 V. Parish 1106 V. Levy 929 State Bank v. Bell 1712 V. Edwards 842 V. Reeder 415 Statham i\ Hall 1669, 1672 Stearns v. Hubbard 682 V. Page 641, 792 Steele v. Lewis 288, 295 V. Mott 40 V. Plomer 452, 469 V, Stewart 602 V. White 1541 Steer v. Steer 951 Steiger v. Hillen 1140 Stein V. Bowman 943 V. Robertson 388 Steinmetz v. Haltben 116 Stent V. Wickens 775 Stephen, In re 1513, 1863 V. Civi 438 V. Yandle 668 Stephens v. Berry 652, 653 V. Frost 295 V. Gaylord 1821 V. Neale 475 V. Totty 117 Stephenson v. Austin 182 V. Stephenson 78, 161, 163, 750, 765 V. Wilson 1724 Stephenton v. Gardiner 617, 688 Sterling, Ex parte 1857, 1858 V. Thompson 1318 Sterm v. Drinker 370 Stern v. Wishart 75 Sterndale v. Hankinson 667, 1208 Sterry v. Arden 970, 1651 Stevens, Re 1712 V. Beals 88, 110 V. Beekman 1736 V. Benning 1750 V. Cooper 681, 882 V. Dewey 1638 V. Guppy 386, 387, 1039 V. Hey 1631, 1639 V. Keating 1460, 1744, 1748 V. Loukwood 338 V. Post 836, 842 Stevens v. Praed 1041, 1120, 1121 V. Smith 1139 V. Van Clevo 849 Stevenson v. Anderson 176, 1659, 1664, 1671, 1672, 1673 V. Austin, 230, 251, 268 V. Buxton 388 Steward v. Duiui 269 r. Roe 1655 Stewart, Re 1469, 1593 V. Barry 1787 V. Beard 1038 V. Beebe 1439 V. Burrows 1616 I'. Clark 1017,1222,1246 V. Duvall 406 V. Famler 1486 V. Forbes 1540, 1544 V. Graham 1808, 1809, 1813, 1817 V. Inglehart 1087 V. Lispenard 849 V. Nicholls 1602 V. Noble 1 258 V. Smithson 1 753 V. Stevart 1803 V. Turner 1142 V. U. S. Ins. Co. 25 V. Welch 1668 V. Wilson 1251 Stiff w. Andrews 638 StifTe V. Everitt 94, 101, 117 Stileman v. Ashdown 364 Stiles V. Donaldson 666 Stilwell V. McNeely 213, 614 V. Wilkins 1412 V. Williams 1412 Stimson v. Meade 1279 Stinson v. Ashley 96 Stocken v. Stocken 1404, 1564 Stoeker v. Brockelbank 1759 Stockhold V. CoUington 942 Stockhouse v. Barnston 585 Stofkley v. Stockley 1 7^4 Stockton V. BrijiKS 1725 Stoever v. Stoever 57 Stoke V. Robson 186 Stokes V. Clendon 265, 266 V. Edmeades 1086 V. Taylor 225 Stokoe V. Robson 1472 Stone V. Anderson 375, 384, 433 V. Boston and Maine R. R. 56 V. Buckner 276 V. Damon 849 V. Davis 415 V. Dennis 698 ?;. Hobart 1715,1722 V. Sidderdale 1068 INDEX TO CASES CITED. evil Stone V. Wishart 75, 1424 Stonehouse v. Stoneliouse 1729 Stones V. Rowton 554 Stoney v. Saunders 1027 Storey v. Johnson 1130, 1132, 15(JG V. Walsh 1275 Storm V. Davenport 171, 194, 242 V.Mann 1733,1770 Storms V. Storms 828 Storrs V. Payne 1665, 1070 Story, Ex parte 1 1 OG V.Brown 1219 V. Hawkins 1010 V. Lennox, Lord George 1375 V. Livingston 182, 183, 285, 305, 1161, 1184, 1218, 1305, 1321 V. Shultz 1238 V. Windsor, Lord 686, 700, 701, 1418 Stothart v. Burnet 1975 Stoughton V. Lynch 693, 1226, 1248, 1256 Stoutenburgli v. Peck 1787 Stow V. Parks 60 Stowell, Lady, v. Cole 1617 Lord, V. Cole 1617 Strader v. Byrd 683, 1020 Strange v. Bell 1659 V. Collins 781, 783 V. Harris 1819 U.Thomas 1164 V. Watson 382, 388 Strangeways, Ex parte 143 Stratford, Re 1870 Strathmore, Countess, v. Bowes 1738 V. Strathmore 960, 961 Stratton v. Davidson 1421 Strausham v. AVright 1123 Street v. Rigby 695 V. Street 1802 Streetan v. Whitman 1055, 1061 Stretton v. Stretton 1276 Strickland v. Aldridge 682 V. Mackenzie 721 V. Strickland 246, 634, 875, 965, 1119, 1592 Strike v. McDonald 952, 1586 Striker v. Mott 201 Strike's Case 338, 963 Strode v. Little 652 Strong V. Smith 109, 110 Strother v. Dutton 1008 Stroud u. Diacon 605,606 Strudwick v. Pargiter 161 Stuage V. Dimsdale 1873 Stuart V. Bute, Lord 738 V. Coalter 345, 1123, 1137 V. Duvall 161 V. Kirkwall 147 Stuart V. Lloyd 421, 769 Stubbs V. Burwell 961, 962 V. Dunsany 1019 V. Leavitt 1723 V. Leigh 1597 V. Sargon 1555, 1564, 1691 Stucker v. Stucker 189, 204 Studd V. Acton 461 Studholme v. Hodgson 1501, 1503 Studwell V. Palmer 1561, 1564, 1566 Stump V. Beatty 496, 749 Sturge V. Starr 239 Sturgeon v. Hooker 990, 1540 Sturjjes V. Lonjjworth 448 Sturgis V. Cap 95 Sturt V. Mellish 466, 673 Sturtevant v. Waterbury 843, 1098 Sturz v. De la Rue 1750 Stuyvesant v. New York, Mayor &c. of 608 Stublette v. Tinney 585 Suffern v. Johnson 281, 282 Suffolk, Earl of, v. Green 595, 608, 636 Suisse V. Lowther, Lord 1550 Sullivan v. Jacob 1566 v. Judah 1755,1782 V. Redfield 1748 V. Sullivan 77 V. Winthrop 1252 Sullivant v. AVeaver 501 Sunderland, Ex parte 1108 Summerfield v. Prichard 1390 Summers v. Parish 1775 V. Murray 642 Summersett v. Jarvis 55 Sumner v. Ridgway 1519 V. Thorpe 689 Supervisors &c. v. Miss. &c. Rail- road Co. 745, 785 Surget V. Byers 850 Sussex, Earl of, v. Temple 866 Sutphen v. Fowler 1046, 1463 Sutton (First Parish in) v. Cole 23 V. Daggett 1512 V. Gatewood 628 V. Jones 1424 V. Scarborough, Earl of 680 V. Stone 261 Sutton Harbor Co. v. Hitchens 796, 1481, 1484 Suydam v. Tinsdale 782 Swaby V. Dickon 1438, 1439 Swaine v. Ferine 1139, 1140 Swale V. Milner 1513 Swallow V. Binns 1593 V. Day 782, 784 Swan V. Swan 277 U.Wheeler 1230 Swann v. Wortley 883, 897 CVlll INDEX TO CASES CITED. Swanger v. Gardner Swayze v. Swayze Swearingen v. Fendleton Swedes i\ IIouu;litaling Sweeny v. Hall Sweet V. Soutlicote Swift V. Ei-ktbrd 346, V. Gazebrook V. Stebbius V. Swift V. Wiley Swinborne v. Nelson Swindall v. Bradley Swinfen v. Swinfea Switzet V. Skiles Sykes v. Hastings V. Sykes Syme v. Johnson Sym's Case Symonds v. Cumberland, of Tabele v. Tabel Tackles v. Wilkins Ta^gart v. Boldin Tainter v. Clark Tart V. Northwick, Lord Taite v. Pallas Talbot V. Bowen V. Braddill V. McGee V. Rutledge 1014 243, 352 244 1252 404 597, 698 349, 402, 426 1550 215, 448 738 872 733, 736 1768, 1769 1107, 1112 681 1424 1753 1566 120 Duchess 493 V. Shrewsbury, Earl of V. Todd Talcott V. Broson Taliaferro v. Foot V. Minor Tallerand v. Boulanger Tallraadge v. Lovett Tally V. Tally Talmadge v. Bell V. Pell 1500 1773 111 998 1285 187 682 1242 1648 1227, 1228 1397 1010 1861 365, 395 1232 45,46, 1807 688, 613 1694 1653 284, 304, 782, 1657 Tamworth, Lord, v. Ferrers, Lord 1738, 1774 Taner v. Ivie 71 Tanfield u. Davenport 1729 V. L-vine 177,1409,1426 Tanner v. Heard 1740 Tappan v. Evans 564, 630, 1086, 1090, 1606 Tappen v. Norman 71 Tappin v. Heath 695 Tarbuck v. Tarbuck 310 V. AVoodfock 743 Tarleton, /ix />a/Ve 578 V. Hornby 632 Tarlton v. TItley Tawn V. Tawn Tash I'. Adams Tasker i\ Small Tate V. Leethead 517 577, 871 1744, 1766 224, 1564 1604 Tatham v. Wright 8 73, 1 1 03, 1 1 1 1, 1 1 1 7, 1465 Tatum V. Hines Taunton v. Pepler Taylor, Ex parte In re V. Allen V. Bailey V. Baker V. Bank of Alexandria V. Bank of Illinois V. liarclay V. Bate V. Bogert V. Bouchier V. Boyd V. Carpenter V. Colgate V. D'Egville V. Dodd Foster Given Glanville Gordon 1022 693 1845 1406, 1870, 1872 247, 1413 629, 794 1466 25 25 20, 568 284 779 37 1082 1754 43, 1753, 1080, 1275 1316 779 604 698 1494 433 Haylin 374, 689 Henry 698 V. Kilgore 1305 V. Leiteh 1812 V. Luther 1737, 1738 u. Mayrant 1107,1108 u. Milner 617 V. INIitchell 590 V. Morton 1 728 V. Obee 781, 1658 V. Oldham 1424 V. Pearson 1634 V. Person 1090 V. Phillips 72 V. Popham 1486, 1545, 1553 V. Read 1010, 1322 Reed 1324 Rundell 738, 739, 1377, 1378 Salmon 236, 1389 Scrivens Sharf) V. Sheppard V. Southgate V. Tabruni V. Taylor V. Titus V. Wood TeafTv. Hewiit Teage, In re V. Dendy 1630, 1841 1637 1723 1745 386, 1495 483 781 958 1001 1865 742 INDEX TO CASES CITED. CIX Teage v. Richards 1008, 1719 Teal V. Woodvvorth 140 Tebborne v. Tebbornc 309 Tedder v. Stiles 403 Teed v. Carruthers 790 Tempest o. Ord 1438 Temple v. Baltinglass, Lady « 687 V. Bank of En gland 138 V. Forster 652 V. Lawson 1458, 1487 Tenant v. Gray 1252 Ten Broeck 1861 Tench v. Cheese 359, 741, 742, 769 Tenham, Lord, v. Herbert 673, 1779 Tenuant v. Wilsraore 783 Tennent v. Patton 1010 V. Tennent 1413 Tentle v. Muncy 117 Terhune v. Colton 1563, 1566 Terry, Ex parte 1558 V. Brunson 117 V. Stakeley 1561 Tevis V. Richardson 89, 90, 448 Thomasson v. Kennedy V. Tucker Thompson, In re V. Allen V. Baskeville V. Brown Tew V. Winterton, Earl of 1252, 1255 Texeire v. DaCosta 1420 Thames &c. Co. v. Nash 1675 Thatcher v. Lambert 744 Thayer v. Lane 1121 V. Thayer 1132 Therry v. Henderson 816 Thistlethwaite v. Gamier 551 Thomas, In re 495 Thomas v. Brashear 713, 1728, 1777 V. Colsworth 520 V. Davies 325 V. Dawkins 1430 V. Dike 69 V. Donb 783 V. Harvie 1628, 1629, 1637 V. Hawkins 1767 V. Hite 383 V. Horn 1789 V. James 1736 V. Jersey, Earl of 465, 467 V. Merchants' Bank 134 V. Oakley 1737 V. Powell 1277 V. Puddlebury 1473 V. Roberts 1395 V. Sheppard 97 V. Smith 382 U.Thomas 417,763,798 V. Visitors' Fred. C. School 403, 411, 412, 782, 785, 1485 V. Walker 1392, 1845 V. Warner 365, 408 V. Butler V. Clay V. Dimond V. Ebbetts 1111 838 1130, 1134 1787 206 229, 1000, 1048, 1717 117 295 1280 1663, 1667, 1678, 1680 V. Geary 1787 V. Goulding 1026, 1027, 1029, 1030, 1031, 1036, 1041, 1043, 1044, 1085, 1555, 1627 V. Graham 220 V. Hill 1588, 1594 V. Jones 444 V. Lamb 836, 1227, 1228 V. Mills 740 292, 1001 20 1758 383, 384 35, 854 Peebles V. White V. Wilson 668 1254 V. Powles V. Smith V. Smithson V. Thompson V. Todd 682 V. Trotter 512, 1152 Thomson v. Thomsan 1562 Thorby v. Yates 1490, 1491 Thorn v. Germaud 406, 420, 422, 716, 828 Thorne v. Halsey 399, 1806, 1811 V. Newman 1238, 1241 Thornhill v. Coplestone 549 V. Evans 1470 V. Thornhill 1285 Thornton v. Henry 681, 682 V. High tower 269 V. Stewart 396 Thorneycroft u. Crockett 1242 Thorp V. Farquer 189 Thorpe V. Macauley 570, 591, 609, 628, 733 V. Mattingley 1582 V. Thorpe 1430 Thurig V. Edgar 632, 641, 644, 645, 702 Thurman v. Shelton 352, 353, 584 Thurston v. Masterton 869 Thynne v. Gary 686 V. Protheroe 328 Tibball v. Bid well 297 Tiblietts V. Perkins 1094 Tibbits u. Tibbits 1136 Tickel V. Short 690, 691 Tiddv. Lister 100,112,117 Tidswell v. Bowyer 781 Tiernan v. Wilson 1494 VOL. I. ex INDEX TO CASES CITED. Tilalinian v. Tilghnian 385 Til'loy V. Wharton 1108 Tillinghast v. Cbamplin 336, 779 ,781, 1407, 1431 Tillotson V. Ganson 818 I'. Hargrave 73, 1178 Timberlake v. Cobbs 839 Tindal v. Cobham 1825 Tink V. Rundle 1433 Tinney v. Tinney 1140 Tipping V. Clarke 732, 735 V. Power 282 Tison V. Tison 1648 Tittenson v. Peat 694 Titterton v. Osborne 310 Titus V. Hobart 46 Tobey v. Bristol, County of 694, 695 Tobin U.Dixon 114 V. Watkinshaw 183, 841 V. Wilson 378, 1671 Tod U.Baylor 1140 V. Tod 1546 Todd V. Aylwin 945 V. Dowd 1279 u. risk 1723 V. Gee 577, 608 V. Lackey 1631 V. Sterrett 218, 296 V. Stewart 170 Toder v. Sampson 990 Toland v. Sprague 665 Toldervy v. Colt 1412 Toller y. Carteret 653,1731 Tolsen v. Jervis 1027 Tolson V. Fitzwilliam, Lord 622 Tomkins v. Lethbridge 617, 1600 Tomlin v. Mc Chord 1005 V. Tomlin 854 Tomlins v. Palk 1042, 1043 V. Tompkins 871 Tomlinson, Re 1406 V. Clay well 349 V. Harrison 1808 V. Lymer 606 V. Swinncrton 793 V. Ward 1407, 1426, 1429, 1458, 1461 Tong U.Oliver 1787,1788 Tonkin v. Lethbridge 1595, 1625 Tony V. Oliver 1787 Tooke V. Hartley 281 Tooley u. Kane 1272 Toon V. Cotterell 516 Toosey v. Burchell 1597 Tootal V. Spicer 1512 Tooth V. Canterbury, Dean and Chap, of 203, 606 Topham v. Lightbody 1008 Topp V. Pollard 1453 Toulmin v. Copland 1248, 1613 V. Hamilton 305 V. Read 139, 564, 1668, 1669, 1672 Tourton v. Flower 287, 325 Towle V. Pierce 176, 287, 289, 366, 209, 212 Towne v. Bonnin 498 V. Smith 840 Townley v. Bedwell 1556 V. Deane 1095, 1674 V. Dean 1676 Townsend, Re 1469 V. Carpenter 193 V. Champernowne 281, 1486 V. Duncan 365, 383, 384 V. Graves 1087, 1091 V. Griggs 434 V. Ives 871, 1102 Marquis of, v. Stain- grome 1479 V. Smith 1019, 1559, 1568 V. Townsend 669, 1556, 1570 Townshend v. Townshend 66, 850 Trabue v. Holt 433 Tracy v. Tracy 1734 Tradesmen's Bank v. Hyatt 736 Trash v. White 664 Trask v. Stone 69 Travers v. Buckley 483 V. Townsend 1492, 1496 Travis v. Chadlenor 866 V. Milne 333 V. Waters 1004, 1010, 1458, 1462, 1487, 1544, 1559, 1618 TrcadweU v. Brown 384, 608 V. Cleaveland 499, 501, 728 Trecothick v. ■ 1471, 1476 V. Austin 192, 586, 668 Trefusis v. Clinton, Lord 1275, 1292 V. Cotton 167 Treherne v. Nash 1123 Trebart v. Burgess 1427 Trelawney v. Williams 786 Tremaine v. Tremaine 786 Trenchard v. Warner 1022 Trenton Banking Co. v. Russell 1106, 1111 Bank v. Woodruff 1086, 1096 Trescott v. Smith 266 Trevanian v. Mosse 700 Trevet v. Creath 68 Trezevant v. Frazer 1186, 1315, 1455, 1798 Tribble v. Tribble 87 399 1128 751 Triebert v. Burgess Trigg V. Trigg Trim v. Baker INDEX TO CASES CITED. CXI Trimleston v. ITamlU 1327, 1328, 1473 Trinity House, Corp. of, v. Burge 595 Triplett V. Jameson 1232 V. Wilson 1630 Tripp V. Cook 1283, 1290, 1540, 1543 V. Vincent 1019, 1039, 1544 Tritti'. Colwell 114 Trodtl V. Downes 1135 Troller ?;. Walmsley 1008 Trotter v. Trotter 454, 1191, 1192, 1193 Troughton v. Binkes 332 V. Getley 302, 322 V. Hill 85, 86 Troup r.Haight 692,888,921,1648,1649 V. Sherwood 976, 979, 980 Trueheart i>. Price 1777 Trulock V. Roby 1237, 1239 Trumbull v. Gibbons 747, 748, 749, 785, 786, 962 Trust & Fire Ins. Co. v. Jenkins 403, 445, 504, 777 1099 110 89, 90 1237, 1243, 1245 R. Co. 768, 769, 772 1088, 1089, 1464 345, 351 Welsh 899 Tudway v. Jones 722, 1606 Tune V. Cooper 115 Tunero v. Edwards 56 Tunstall v. Boolber, Sir W. 1423 V. McClelland 827 Tupper V. Powell 389 Turner v. Amer. Bap. Miss. Union 343, 347, 1727 Trye v. Maule Tryon v. Sutton Tucker v. Andrews V. Buffum V. Cheshire R. V. Sanger V. Tucker V V. Berry V. Blannie V. Burleigh t;. Cole V. Corney V. Debell V. Dorgan V. Hill V. Hind V. Holman V- Hughes ■V. ]\Iajor V. Maule V. Mitchel V. ]\Iorgan V. Robinson V. Scott V. Trelawney 183, 1632, 1636 1741 878,915, 921 1622, 1780 1743 668 489, 815 1654 215 839, 843 1219, 1226, 1248 755 1104 636 1131 60, 632, 655 1774 971, 973 Turner v. Wright Turner's, Sir E., Case Turnball v. Warner Turn ham v. Turnhara Turnipseed ik Hawkins Turrill v. Muzzey Tuthill V. Scott Twigir V. Fifield Twogood V. Swanston Two Sicilies, King of, v Twyford v. Traill Tyler v. Bell V. Drayton V. Simmons 1 V. Tyler Tyne v. Bunce Tyree v. Williams Tyson v. Cox V. Fairclough V. Pole u. 1727, 1757 118, 119 523 183 871 668 1464 1276 693 Wilson 589 326, 1320 244, 288, 624 605, 606, 1379 296, 1312, 1556, 1560, 1561 1428 337 1004 1548 1418 585 Udall V. Kenney 89 Uhlfelder u. Levy 1727 Uhthoff y. Huntingfield, Lord 857 Underbill v. Van Cortlandt 574, 580, 695, 850, 889, 961, 962, 965, 967 Underwood v. HItchcox 1483 v.Jee 819 Union Bank v. Geary 842, 843 V. Kerr 1663 i;. Knapp 665,1225 Union Branch Railroad Co. v. East Tenn. & Georgia Railroad Co. 630 Union Ins. Co. v. Van Rensselaer 1471, 1472 United States v. Arnold 1252 V. Bank of Metropolis 123 V. Barney V. Blight V. Clark V. Green V. Hawkins V. McDaniels V. Miller V. Parmele V. Parrott V. Turner 387, 991, 1259, 1326 1327, 1454, 1466, 1512, 1541, 1557, 1562, 1719 123 19 123 1395 123 123 44 189, 334 183, 1732, 1788 19 19 123 123 Samperj-ac 1091, 1115, 1629, 1630, 1641 Smith 890 V. Perchman V. Peters V. Ringgold Co V. Robeson V cxu INDEX TO CASES CITED. United States v. Twenty-eight pack- aires 590 V. Wells 123 V. Wilkins 123 University i\ Cambreling 432 University College v. Foxcroft 1078 University of Glasgow v. Baliol Coll. " 175 Upjohn v. Upjohn 1008 Upperton v. Harrison 1469 Upton V. Ferrers, Lord 1257, 1258, V. Sowton 744 Urlin V. Hudson 661, 662 Urquhart v. Turner 1657 Utten V. Utten 1816 Utterson r. Mair 331, 565, 1413 Uvedale v. Uvedale 1497 Uxbridge, Earl of, Ex parte 1856 Lord, V. Staveland 330, 366, 390 V. Vaignem v. Kirk Vaillant v. Dodemead Vale V. Davenport Valentine v. Ford V. TeUer Van V. Corp 1687 604, 690, 691 1284 86 1072, 1083 1183 Van Alst v. Hunter 1088, 1111, 1112, 1113 Van Benshooten v. Lamson 1260 Van Buren v. Olmstead 1471 Van Burgen v. Van Burgen 1743 Van Bussum v. IMalconey 1274 V. Maloney 1267, 1268 Vance v. Lancaster 338 Vancleave v. Beam 226 Vancleef w. Sickles 305 Vancover v. Bliss 1461, 1482 Vandenburirh v. Van Rensselear 1 704 Vanderbilt,"/n re 453, 474, 481 Vanderheyden v. Vanderheyden 1233, 1434 Vanderpoel v. Van Valkenburgh 226 Vandervere v. Reading 778, 779, 781, 782, 783 Vandervoort v. Williams 1787 Van Duzen v. Van Duzen 89, 104 Van Duyne v. Vreeland 682 Vandyke v. Brown 374 Vane v. Barnard, Lord 1738 Van Epps v. Van Deusen 89, 97, 115, 116, 286, 294, 295 Van Giesen v. Van Houten 1257 Van Hook v. Pendleton 888 V. Throckmorton 194, 1083 V. Whitlock 585, 586, 633, 634, 734 Van Leonard c. Stocks Van Mater v. Sickler Vann v. Burnett Vannerson v. Cord Van Reimsdyk v. Kane Van Rensselaer v. Brice V. Bruce Van Rhym v. Vincent Van Sandau, Ex parte Re V. INIoore V. Rose Vansittart v. Collier Van Tyne v. Bunce Van Vetchen v. Terry Van Vorst, Ex parte 295 347 1426 1280 839 741, 742, 772 769 668 1080 1782 26, 234, 743 1775, 1783 1272 583 269 1836 VanVronkerw. Van Wezel v. Van Wych v Varick v Eastman 1246,1247,1250 Van Wezel 1561 Briggs V. Dodge V. Smith V. Seward 687, 1088 597, 698 631 615 192 751 597 99 571, 868, 1464 1180, 1181 1495 102, 108 1448, 1595 714 479 107 973, 974 1723 1G41 345 1244 190, 304, 1606 1266 399 600 47 403 1312 135, 136, 746, 767 Odell 420, 805, 828, 830 Varney v. Bartlett Vassar v. Hill Vattiers v. Hinde Vaughan v. Buck V. Fitzgerald V. Lloyd V. Murdson V. Parr V. Vaughan V. Welsh V. Williams V. Wilson V. Worrell Vaughn v. Fuller V. Hann Vann v. Hargett Veach v. Schaup Veasie v. Williams Veeder v. Fonda V. Moritz Vent V. Pacy Venus, The Vere v. Glyn Vereker v. Gort Vermilyea v. Fulton Bank Verney v. !Macnamara Vernon v. Cholmoudeley V. Coe V. Thelluson V. Vawdry V. Vernon Verplanck v. Cairnes V. Mer(;hant 781 1257 717 1719 691, 692 584 565, 608, 1406 Ins. Co. 284 390, 402,403, 408, 410, 426, 1426, 1427, 1436 INDEX TO CASES CITED. CXlll Verree v. ITufrhes 1254 Vesey v. Elwortliy 1272 Vialle V. O'Reilly 1428 Vicary v. Widj^cr 1673 Vigers v. Audlcy, Lord 1608, 1610 Vigras v. Binficld 1822 Vincent V. Godson 1718 V. Hunter 29 Vli§t V. Lowmanson 1787 Volansv. Carr 1709 Voorhecs v. De Myer 192, 1004 Vose V. Philbrook 209, 212, 265, 322, 377 Vowles 17. Younw . 488 Vredcnburg v. Johnson 336, 583 Vroom V. Ditmas 683, 1027, 1466, 1471 Vyvyan v. Vyvyan 1671 W. Wabash & Erie Canal Co. v. Beers 1006 Waddilove v. Taylor 1469 Wade V. Stanley 311 Wadman v. Birch 1196 Wafer !;. Mocato ■ 1764 Waffle V. Vanderheyden 561, 1773 Waggoner v. Gray 1226, 1227, 1257 Wagner v. Mears 37, 40 Wagstaff y. Bryan 359, 742, 772 V. Read 701 Waite V. Semple 1209 V. Temple 210 V. Waite 1210, 1363 Wake V. Franklin 949 V. Parker 105 Wakefields v. Childs 1141 Wakeham v. Lome 158 Wakelin v. Walthell 840 Wakeman v. Bailey 300 t;. Gillespy 1687,1788 V. Grover 268, 841 V. Rutland, Duchess of 1263 Walbank v. Sparks 1673 Walburn v. Ingilby 195, 328, 1377, 1548, 1549 Walcot V. Walker 1 749, 1 751 Walden v. Chambers 109, 112 Waldo V. Corley 1547, 1549, 1550, 1554 Waldron, ^a; parte 1395 V. Frances 1512 Wales V. Bank of Michigan 566 Princess of, v. Liverpool, Earl of 606, 1377 Walford V. ■ 191, 296 Walkens v. Brent 1422 Walker, 7/1 re 97,102 V. Bell 1075 Walker v. Berry V. Christian 836 1805, 1808 V. Crowder 75 V. Devereux 382, 384, 394, 1717 V. Easterby V. Else 29 70 V. Fletcher 397 V. Gilbert 1606 V. Hallett 135, 284,448 V. Hurst 452 V. Jeffreys 293 V. Kendall 1254 V. Locke 643, 681 V. Morris 1274 V. Smahvood 278 V. Symonds 1556 V. Wainwright 1728 V. Walker 112, 740 V. AVheeler 1763 V. Wingfield 1306, 1316 V. Woodward 1176 Walker's Estate 1232 Wall V. Bushby V. Rushby V. Stubbs 683, 153, 165 73 709, 710, 711, 744, 745 Wallace v. Mease 924 V. Taliaferro 109- V. Wallace 771 V. Wilson 1082 Wallen v. Williams 1055, 1072 Waller v. Demint 588 V, Hanger 15 r. Harris 1016,1717 V. Pedlington 804 V. Waller 1 76 Walley v. Berkhead 167 Wallls V. Frazier 370 V. Hodgson 856, 872 V. Hodson 67 V. Portland, Duke of 590 Wallop V. Brown 492 Wallworth v. Holt 235, 237, 341 Walmsley v. Child . 395 u. Walmsley 1249 Walren v. Hallett 151 Walroud, Sir J., v. Jacob 1685 Walsh V. Gilmer 368 V. Smyth 403, 415, 1559 Walsingham, Lord, v. Goodricke 599,600 Walter v. Maunde 1508 V. Patey 1476 V. Selfe 1740 Walters v. Upton 1824 Walthatt V. Rives 322 Walton V. Broadbent 786 V. Cody 374 V. Coulson 165 CXIV INDEX TO CASES CITED. Walton V. Ilobbs 843 V. Ilorbort 431 V. Low 1013 V. United States 123 V. Van Plater 998 r. Walton 843 r. Withington 1240 Walworth v. Holt" 341 Walwyn v. Lee 700 AVambau 6 Ves. 779. » Vi 10 & 11 Vict. c. 83. ^ 4 Hare, 51. See also Count de Wall's case, 12 Jur. 145. ' Talleyrand v. Boulanger, 3 Ves. 447. Suits are maintainable and are con- stantly maintained between foreigners, where either of them is within the terri- 46 PERSONS ABSOLUTELY DISQUALIFIED FROM SUING: principle it was held by Lord Hardwicke, that the Court will not grant a writ of Ne exeat regno, where it appears that the transac- tions between the parties were entered into upon the faith of hav- ing justice in the place where they respectively resided.^ With respect to alien enemies, the law is clearly settled by nu- merous cases, that an alien enemy not resident here, or resident here without the permission of the government, cannot institute any suit whatever in this country, whether at Law or in Equity, either for real or personal property, until both nations be at peace •,^ tory of the State in which the suit is brought, both in England and America. Story Conf, Laws, § 542. In Brinley v. Avery, 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- try, and was to have been performed there, is good ; and in Dumoussay v. Delevit, 3 Har. & John. 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. Benjamin, 15 Mass. 354, the Court were inclined to the opinion that one for- eigner 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 constru- ing such contracts, the law of the place where they are made will be administered, lb. p. 357; Story Conf. Laws, § 270 e< seq. ; De La Vega v. Vianna, 1 Barn. & Adol. 284. But the remedy will be applied according to the law of the place where it is pursued. Post, 56, note (1). A controversy 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. In De La Vega v. Vianna, 1 Barn. & Adol. 284, it was held that one foreigner mav arrest another in England for a debt which accrued in Portugal while both resided there, though the Portuguese law does not allow of arrest for debt. In the above case, Lord Tenterden, C. J., remarked, that a person suing in England must take the law as he finds it ; he cannot, by virtue of any 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 sub- jects are entitled to. The remedy upon contracts is governed by the law of the place where the parties pursue it. See also Whittemore v. Adams, 2 Cowen, 626; Willing v. Consequa, 1 Peters C. C. 317; Contois v. Carpentier, 1 Wash. C. C. 376; Wyman v. Southward, 10 Wheat, 1; Don v. Lippman, 5 Clark & Fin. 1 ; Hinkley v. Moreau, 3 Mason, 88 ; Titus v. Hobart, 5 Mason, 3 78 ; Atwater V. Townsend, 4 Conn. 47; Story Conf. Laws, § 568-571. The same doctrine was maintained in Smith v. Spinolla, 2 John. 198. See also Peck r. Hozier, 14 John. 346 ; Sicard v. Whale, 11 John. 194 ; Tallej-rand v. Boulanger, 3 Sumner's A'esey, 447, note (a). ^ Robertson v. Wilkie, Amb. 177; and see De Carri^re v. De Calonne, 4 Ves. 590. - Co. Litt. 129 &; 6 T. R. 23 ; 1 Bos. & P. 163 ; 3 Bos. & P. 113; Story Eq. PI. § 51 -54 ; Mumford v. Mumford, 1 Gallison, 366 ; Bradwell v. Weeks, 1 John. OF ALIENS. 47 and it is said that the question, whether he is in amity or not, shall be tried by the record, viz. by the production of the proclamation of war .^ It is to be observed, that in declaring war, the Queen in her proclamation usually qualifies it by permitting the subjects of the enemy resident here to continue so long as they peaceably de- mean themselves, so that without doubt such persons are to be deemed in effect alien friends ^ : therefore, where an alien enemy has lived here peaceably a long time, or has come here for refuge and protection, the Court will discountenance pleas of alienage against them.^ It seems also that a prisoner of war may sue upon a contract entered into by him during the time of his captivity ; thus where the subject of a neutral State was taken in an act of hostility to this country, on board an enemy's fleet, and brought to England as a prisoner of war, it was held that he was not disquali- fied while in confinement from maintaining a suit entered into by him as a prisoner of war.* The mere circumstance of residing in a foreign country, the government of which is at war with this country, and of carrying on war there, is sufficient to constitute any person an alien enemy, even though he would not otherwise be considered in tliat 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 Ch. 208; Crawford i-. Wm. Penn, 1 Teters C C. 106; Wilcox v. Henry, 1 Dall. 69; Bell v. Chapman, 10 John. 183; Hepburn's case, 3 Bland, 95; Griswold v. Waddington, 16 John. 438; Clemontson v. Blessig, 11 Exch. 135, 141, note. * Harg. and Butler's Co. Litt. 129 b, n. 2, » Ibid. n. 3. » Wyatt's Prac. Reg. 327; Story Eq. PI. § 52; Bradwell v. Weeks, 1 John. Ch. 208 ; Wells v. Williams, 1 Ld. Ray. 282 ; Clark v. Skipwith, 6 Binney, 241. * Sparenburgh v. Bannatyne, 1 Bos. & P. 163 ; Crawford v. The William Penn, 3 Wash. C. C. 484. In many cases, an alien enemy is entitled even to sue for his own rights, as when he is permitted to remain in the country, or is brought here as a prisoner of war. He is recognized in our courts in his character as executor; and in all cases his property is protected and held in trust for him until the return of peace. Bradwell i-. Weeks, 1 John. Ch. 208; Bell v. Chapman, 10 John. 183; Clarke v. Morey, 10 John. 69; Hutchinson v. Brock, 11 Mass. 119; Parkinson v. Went- worth, 11 Mass. 26; Russell v. Skipwith, 6 Binney, 241. * 1 Kent (10th ed.) 83 et seq.; Case of the Sloop Chester, 2 Dallas, 41 ; Mur- ray V. Schooner Betsey, 2 Cranch, 64 ; Malcy v. Shattuck, 3 Cranch, 488 ; Liv- ingston V. Maryland Ins. Co. 7 Cranch, 506 ; The Venus, 8 Cranch, 253 ; The Francis, 8 Cranch, 363 ; Chitty Cont. (10th Am. ed.) 198, 199 ; Society v. Wheeler, 2 Gallison, 105. 48 PERSONS ABSOLUTELY DISQUALIFIED FROM SUING: trade in the hostile country, be considered as an alien enemy, and disqualified from suing in the courts of this country, altliough, had he merely resided there in his diplomatic cliaracter, he would not have been disqualified ; ^ and even if a British subject residing in a foreign State which is at war with this country, carry on trade there without a license from the government of this country, his trading will be considered such an adherence to the Queen's ene- mies 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 himself to the purposes of the enemy by furnishing him with resources.^ If, however, a subject of this country, residing 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 li- cense to reside in a hostile country, and to export corn or other specified articles to this country, were to use such license beyond its expression, for the purpose of dealing in articles to which 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 insur- ance upon the property of an alien enemy, even though the action is brought in the name of an English agent,^ and though it is al- leged that the alien is indebted to the agent in more money than the value covered by the policy.^ Where, however, a certain trad- ing of an alien enemy (viz. for specie and goods to be brought 1 Albrecht v. Sussman, 2 Yes. & B. 323. " M'Connel v. Hector, 3 Bos. & P. 113. * Ex pai-fe Baglebole, 18 Yes. 529. * Ibid. See Crawford v. The William Penn, 3 Wash. C. C. 484. ■* Ibid. * Crawford v. The William Penn, 1 Peters, C. C. 106. It is no objection, ajier the iva7; that the suit was originally brought by the plaintiff as trustee for an alien enemy. Hamersley v. Lambert, 2 John. Ch. 508. ' Bristow V. Towers, 6 T. R. 35. * Brandon v. Nesbitt, ibid. 23. OF ALIENS. • 49 from the enemy's country in his ships into our colonial ports) was licensed by the King's authority, it was 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 au- thorize the trade ; and that effect ought, therefore, to be given to the ordinary means of indemnity, by which that trade (from the continuance of which the public must be supposed to derive bene- fit) may be best promoted and secured ; the Court of King's Bench therefore 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 had 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 which an alien enemy lies is per- sonal, and takes away from the Queen's enemies the benefit of her courts, whether for the purpose of immediate relief or of giving assistance in obtaining that relief clsewlierc : therefore an alien enemy cannot institute a suit for the purposes of obtaining a dis- covery, even though he seek no further relief^ It is to be observed, that the right of an alien to maintain a suit relating to a contract is only suspended by a war, if the contract was entered into previously to the commencement of the war, and that it may be enforced upon the restoration of peace.^ Upon this ' Kensington v. Inglis, 8 East, 273. ' Daubigny v. Davallon, 2 Anst. 462. See Story Eq. PI. § 53 ; Albretcht v. Sussman, 2 Ves. & Bea. 326. An alien friend, it is well known, may maintain a bill for discover} in aid of a suit in a foreign country. 2 Story Eq. Jur. § 1495 ; Mitchell V. Smith, 1 Paige, 287 ; Story Eq. PI. § 53 in note. » Chitty Contr. (10th Am. ed.) 199 ; Flindt v. Waters, 15 East, 260 ; Hamilton V. Eaton, 2 Marsh. C. C. 1 ; Buchanan v. Curry, 19 John. 137; Clemontson v. Blessig, 11 Exch. 135, 141, note; Story Eq. PI. § 54; Hamersley v. Lambert, 2 John. Ch. 508 ; Bradwell v. Weeks, 1 John. Ch. 206. And in Massachussetts the statutes of limitation of personal actions are expressly suspended in favor of an alien during the war. Genl. Sts. ch. 155, § 8. See Hopkirk v. Bell, 3 Cranch, 454. A plea, that the plaintiff was an alien enemy, is sufficiently answered by a treaty of peace, made after the plea was filed. Johnson v. Harrison, 6 Litt. 226. The Court will take notice of the fact, though the plaintiff do not rej)ly it. lb. Treaties with foreign nations are part of the law of the land, of which the Courts are bound to take notice. Baby v. Dubois, 1 Blackf. 255. VOL. I. 5 50 PEKSONS ABSOLUTELY DISQUALIFIED FROM SUING: principle, in bankruptcy, the proof of a debt due to an alien enemy upon a contract made before the war broke out, was ad- mitted, reserving the dividend.^ But no suit can be sustained to enforce an obligation arising upon a contract entered into with an alien enemy during war, such contract being absolutely void.^ And where a policy of insurance on behalf of French subjects was entered into just before the commencement of the war, upon which a loss was sustained in consequence of capture by a British ship after hostilities had commenced, the proof of a debt arising from such policy, which had been admitted by the commissioner in bankruptcy, was ordered to be expunged.^ The. principle upon which the last-mentioned case was decided is fully stated by Lord Ellenborough in Brandon v. Curling,^ where it is laid down by his lordship as a rule, that every insurance on alien property by a British subject must be understood with this implied exception, " that it shall not extend to cover any loss hap- pening during the existence of hostilities between the respective countries of the assured or assurer." A defence on the ground that the plaintiff is an alien enemy should be made by plea before answer.^ It does not appear from any case in the boots, 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- ceedingsJ ^ Ex parte Boussmaker, 13 Ves. 71. 2 Ex parte Boussmaker, 13 Ves. 71 ; Barrick v. Buba, 2 Com. B. (N. S.) 563 ; Griswold V. Waddington, 16 John. 438. * Ex parte Lee, 13 Ves. 64 ; Clemontson v. Blessig, 11 Exch. 135, 141, note. * 4 East, 410. 5 Cahill V. Shepherd, 12 Ves. 335. « Gilb. For. Bom. 53. ^ 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 is not abated during the war, it is no objection, after the war, that the plaintiff was an alien enemy OF ALIENS. 51 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.^ 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 proved.^ 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 come to the knowledge of the defendant that he is actually so, the defendant may obtain an order of the Court that the plaintiff shall, before' he proceeds further, give security to answer to the defendant the costs of the suit.^ The practice with respect to this rule has been before stated,"^ and is applicable to aliens and foreigners as well as to natural-born subjects. when the suit was brought. Hamersley 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 r. Wentworth, 11 Mass. 26; Levine v. Taylor, 12 Mass. 8; Hamersley c. Lambert, 2 John. Ch. 508. AVhere the plaintiff becomes an alien enemy after judgment, the Court will not, on motion, stay or set aside the execution. Buckley v. Lyttle, 10 John. 117. See Owens v. Hanney, 9 Cranch, 180. * Daubigny c. Davallon, 2 Anst. 462. ^ Dolder v. Lord Huntingford, 11 Yes. 292. See Baby v. Dubois, 1 Blackf. 255 ; Johnson v. Harrison, 6 Little, 226. ' Meliorucchy v. Melioruechy, 2 Ves. 24 ; Green v. Charnoch, 1 Ves. jun. 396 ; Hoby V. Hitchcock, 5 Ves. 699; Seilaz r. Hanson, 5 Ves. 261 ; Drever v. Mau- desley, 5 Russ. 11. * See pp. 29, 30. 52 PERSONS ABSOLUTELY DISQUALIFIED FROM SUING: Section III. Persons attainted or convicted. After judgment in a prosecution for treason or felony, the criminal ' is said to be attainted, attinctus, or blackened,^ and be- comes incapable of maintaining a suit in any court of justice, either civil or criminal, unless for the purpose of procuring a re- versal of his attainder.^ It is also to be observed, that the conse- quences of attainder are, forfeiture of all the party's property, real and personal, and disqualification from holding any which he may in future acquire, either by descent, purcliase or contract.^ So that even if he had the power of suing it would be useless, as he has no power of retaining what he sues for, even should he succeed, the right to the property in such cases being in the Crown. With respect to the forfeiture of real estates by attainder, there is a distinction between attainders for treason and for felony. By attainder for treason a man forfeits to the Queen all his lands and tenements of inheritance, whether fee simple or fee tail, and all his rights of entry in lands or tenements which he had at the time of the offence committed, or at any time afterwards, to be forever vested in the Crown, and also the profits of all lands and tene- ments wliich he had in his own right, for life or years, so long as such interest shall subsist ; * but with respect to attainder for fel- ony, the 54 Geo, III. c. 145, enacts, that except in cases of high treason, petit treason, and murder or abetting the same, no attain- der shall extend to the disinheriting any heir, nor to the prejudice of the right or title of any person except the offender during his ^ 4 Bl. Com. 381. * Ex parte Bullock, 14 Ves. 452. A person attainted under the Act of New York, 1799, is considered as civiliter 7nortuus. Jackson v. Catlin, 2 John. 248. One attainted under the Act cannot sustain an action for rent due to him previous to the passing of the Act, or make it a set-oflf in an action by his lessee. Sleght V. Kade, 2 John. 236. A plea of attainder is of rare occurrence, and a plea of this sort in Equity would probably be construed with the same strictness as the like plea is at law. Story Eq. PI. § 723. ' Bullock V. Dodds, 2 Barn. & Aid. 277. * i Bl. Com. 381. PERSONS ATTAINTED OR CONVICTED. 53 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, may enter thereupon.^ The forfeiture of real estate, consequent upon attainder of trea- son or felony, relates backward to the time of the treason or felony committed, so as to avoid all intermediate sales or incumbrances, but not those before the fact.^ The case is, however, different with regard to the forfeiture of goods and chattels, for that has no relation backwards, so that those only wliich a man has at the time of conviction shall be forfeited.^ But by attainder, not only all the personal property and rights of action which a man actually has are forfeited ; but all personal property and rights of action, which accrue to the offender after attainder, are forfeited and vested in the Crown without office found ; so tliat it has been held that attainder may be well pleaded in bar to an action on a bill of exchange endorsed to the plaintiff after his attainder.* There is another distinction between the forfeiture of real and of personal estate, — lands are forfeited upon attainder^ and not before ; goods and chattels are forfeited upon conviction^ because in many of the cases where goods are forfeited there never is any attainder, wliich happens only where judgment of death or outlawry is given ; and being necessarily upon conviction in those, it is so ordered in all otlier cases.^ In outlawries for treason or felony, lands are for- feited only hy judgment^ but goods and chattels are forfeited by a man's being put in the exigent^ without staying till he is qvinto exactus, or finally outlawed, for the secreting himself so long from justice is construed into a flight in law.^ These points, although they do not immediately relate to the personal disqualification from suing under which a party lies who has been attainted either of treason or felony, are nevertheless ^ All copyhold estates are forfeited to the lord and not to the Queen, unless there be an Act of Parliament or an express custom to the contrary (I Cruise's Dig. 3C1) ; and the forfeiture in such case does 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 Bl. Com. 381. " 4 Bl. Com. 387. * Bullock I'. Dodds, 2 B. & Aid. 258. * 4 Bl. Com. 387 ; and Perkins v. Bradley, 1 Hare, 219. * Ibid. 5* 54 PERSONS ABSOLUTELY DISQUALIFIED FROM SUING: 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 ac- crued may be a very important point of consideration. Attainder and conviction, like outlawry, must be taken advan- tage of by plea. In Burt v. Brown,^ an instance of a plea of con- viction for manslaughter appears to have occurred, and the plea was overruled on the ground that the part of the body on which the wound was inflicted was not sufficiently described, and because it was averred that the offender was tried at the Galloway assizes, without saying that the persons who tried him had a commission o^ goal delivery or were justices of oyer and terminer. 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 is restored to his credit, his capacity and blood, and his es- tates ; with regard to which last, it is said, that though they be granted away by the Crown, yet the owner may enter upon the grantee with as little ceremony as he might enter upon a disseisor.^ From this it follows of course that he may, if he is entitled to equitable relief, sue for it in a Court of Equity, in the same man- ner that he might have done if no attainder had taken place. The only other way in which the disqualification arising from an attainder or conviction may be obviated, is by the Queen's pardon. Tliis formerly could only have been granted under the Great Seal ; but now, by 6 Geo. IV. c. 25, s. 1, a warrant under the royal sign manual, countersigned by one of the principal Secretaries of State, granting a free pardon, and the prisoner's discharge under it ; or granting a conditional pardon, and the performance of such con- dition, is as effectual as a pardon under the Great Seal. There is a great difference between the effect of a pardon and of a reversal. In the case of the reversal of an attainder, the party is, as we have seen, in all respects replaced in the same con- dition that he was in before the commencement of the proceedings, and he is restored to his former credit and capacity ; but the effect of a pardon is not so much to restore his former, as to give him a 1 Lord Red. 189. - 2 Atk. 399. » 4 Bl. Com. 393. OF BANKRUPTS AND INSOLVENT DEBTORS. 55 new credit and capacity.^ Thus a person, who has been convicted and pardoned, cannot sue upon any right accrued to him before his pardon, although he may for a right accrued afterwards.^ Section IV. Of Bankrupts and Insolvent Debtors. The disabihty to maintain a suit on account of alienage, out- lawry and attainder, arises partly from the plaintiff being person- ally disqualified, and partly from his not being capable of holding the property which is the object of the suit. The disability ac- cruing from bankruptcy arises from the latter cause only, or rather from the fact that by the bankruptcy, all the bankrupt's property, whether in possession or action, is vested in his assignees, and a bankrupt, even though uncertificated, is not personally disqualified from suing ; and may in many cases sustain suits either at Law or in Equity.^ Thus, under the old Bankrupt Law, if a bankrupt disputed his liability to the commission,"* or the validity of the adjudication un- der it, he might maintain trespass against his assignees,^ or trover for his books and papers ; ^ and it has been held that where as- signees have employed the bankrupt in carrying on his trade or manufacture for the benefit of the estate, and paid him money from time to time, it is evidence of such a contract between him and the assignees as will enable him to maintain an action against them for a compensation for his work and labor.'^ And so, as a bankrupt, though uncertificated, can acquire and hold property against every one except his assignees, he can maintain an action of assumpsit against a third person for his own work and labor ^ 4 Bl. Com. 402. - 1 Com. Dig. Abatement, E. 3. ' See Story Eq. PI. § 495, 726 ; p:iderkin v. Elderkin, 1 Root, 139; Ililliard Bank. & Ins. 384. * See Lincoln v. Bassett, 9 Gray, 355. * Perkin v. Proctor, 2 Wils. 382. See Merrick's Est. 5 W. & S. (Penn.) 1 ; Hilliard Bank. & Ins. 398, 399. ' Summersett r. Jarvis, 6 Moore, 56 ; 3 B. & B. 2, S. C. ' Coles V. Barrow, 4 Taunt. 754. 56 PERSONS ABSOLUTELY DISQUALIFIED FROM SUING: performed,! ^^^^ f^P money lent or advanced ^ since the issuing of the commission or fiat ; and where no claim is made by the as- signees, he may also maintain trover for goods acquired after his bankruptcy,^ as well as trespass quare clausum fregit, for a trespass committed before his bankruptcy,* for the defendant in any of these actions would not object to the bankrupt's claim unless his assignees interfered, and the bankrupt in fact sues at Law as a trustee for his assignees.^ In Equity, also, a bankrupt who had not obtained his certificate, has been allowed to file a bill to restrain a nuisance, or the infliction of any injury of a private or particular nature without making his assignees parties ; ^ and if sued at law upon a bond or note, he is entitled to file a bill of discovery in order to obtain proof that such bond or note was fraudulently procured ; the specific relief prayed is however material in determining whether the assignee is a ne- cessary party to the bill, for where it prays that the instrument upon which the bankrupt is sued at law may be delivered up, the assignee is a necessary party." Where persons claiming to be creditors of bankrupts, instead of seeking relief under the commis- sion, brought an action against the bankrupts, and the bankrupts filed a bill seeking a discovery in aid of their 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 which upon taking such accounts might appear to be due from them, a plea of bankruptcy was overruled, Sir Thomas Plumer, V. C, being of opinion that the bankrupts were entitled to the discovery ^ Chippendale v. Tomlinson, 1 C. B. L. ; Silk v. Osborne, 2 Esp. 140. ^ Evans V. Brown, 1 Esp. 1 70. ' Fowler v. Down, 1 Bos. & P. 44 ; Laroche v. Wakeman, Peake, 140 ; Webb V. Ward, 7 T. R. 296 ; Webb r. Fox, 7 T. R. 391. * Clarke v. Calvert, 3 Moore, 96. ^ Cumming v. Roebuck, 1 Holt, 172; 1 Deacon's Bankrupt Laws, 155. A bankrupt can, after his bankruptcy, maintain in his own name, a suit for a wrong done, brought before be was declared a bankrupt, unless his assignee should interpose an objection. Sawtelle v. Rollins, 23 Maine, 196 ; Hilliard on Bank. & Ins. 397 et seq. ; Tunno v. Edwards, 3 Brev. 510; Kirwan v. Latour, 5 Harr. & John. 289; Hayllar v. Sherwood, 2 Nev. & Man. 401. A claim for an injury done to a party by the negligence of another, does not pass by an assignment of his estate under the insolvent laws of Massachusetts before the recovery of judg- ment. Stone V. Boston & Maine Railroad, 7 Gray, 539. * Semple i\ London and Birmingham Railway Company, 9 Sim. 209. ' Balls V. Strutt, 1 H. 146. OF BANKRUPTS AND INSOLVENT DEBTORS. 67 and account, although they were not entitled to that part of the prayer 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 his assignees under the commission, even though there may be collusion between them and the persons possessed of the ' property. In a recent case, the question arose, whether creditors of an insolvent, under the Insolvent Debtors Act, could maintain a suit respecting property, or rights alleged to have belonged to the insolvent, and to be vested in his assignee, upon an allegation of collusion between the assignee and the party against whom relief is prayed. Lord Lyndhurst reviewed the various cases upon the subject, and from his judgment it appears that the creditors of an insolvent cannot under such circumstances sue, and that the same principle is applicable also to cases in bankruptcy ; and further, that there is no distinction in this respect between bankrupts or insolvents themselves and their creditors, or persons claiming under them.^ In Spragg v. Binkes,^ it was held by Lord Alvanley, M. R., that a bankrupt cannot tile a bill for the redemption of a mortgage in respect of his right to the surplus of his estate ; and in Bcnfield V. Solomons,* a demurrer was allowed to a bill by a bankrupt against a mortgagee of estates in England and Berbice, for an account and payment of the balance to the assignees, who were made defendants and charged with collusion. It may be here stated that the Bankrupt Law has been now consolidated and amended by the recent Act of 12 & 13 Vict. c. 106, and that in general the Court of Chancery will not interfere to give relief in cases where the party applying might obtain his rights by proceeding in bankruptcy. Sir J. Wigram, V. C, said, I have had occasion to consider the etfect of the Bankrupt Laws in excluding the jurisdiction of this Court, in cases to which its jurisdiction would otherwise extend ; and in both cases I was strongly impressed with the necessity of maintaining, to the fullest ^ Lowndes v. Taylor, 1 Mad. 423. This decision was afterwards affirmed on appeal. Ibid. 425 ; 2 Rose, 432; and see Govet v. Armitage, 2 Anst. « Heath v. Chadwick, 2 Ph. 64 7. See Stoever v. Stoever, 9 Serg. & R. 434 ; Griswold V. McMillan, 11 111. 590. » 5 Ves. 587. * 9 Ves. 77. 58 PERSONS ABSOLUTELY DISQUALIFIED FROM SUING: extent which may be consistent with justice, the exclusive jurisdic- tion of the Bankrupt Laws, in cases committed to their adminis- tration. The jurisdiction of the Commissioners of Bankrupts is a limited one. They have not, as the Court of Chancery has, an original and general jurisdiction, within which cases of a given class will fall of themselves, unless by some special act of the leg- islature they are withdrawn from it. The powers of the commis- sioners being new, and derived from special statutes, are limited by these statutes. In the case then before Sir J. Wigram, he said that he did not find any express powers given the commissioners to compel the assignee to assign a surplus to the bankrupt, or to dismiss a pe- tition, or take it off the file, in a case like that before him. Ac- cordingly the plaintiff, though a bankrupt, was, under the special circumstances of the case, allowed to maintain a suit against the defendant, as mortgagee, for the redemption of an estate which had been mortgaged before he presented his petition to the Court of Bankruptcy, notwithstanding the objection of tlie defendant that the estate of the plaintiff' (if any) was vested in the official assignee.^ As a bankrupt cannot file a bill against strangers respecting property vested in his assignees under the commission, 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 property a bankrupt has, or, to use a technical expression, may depart ivilh, 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 coun- try do not prevail, makes no difference ; so that a bankrupt cannot maintain a suit in this country, even though the property in re- spect of which the suit is instituted is in another country.^ ^ Preston v. Wilson, 5 Hare, 185. It has been held that an insolvent debtor, who has made a general assignment, may, on proof of his paying all debts due at the time of his discharge, bring ejectment in his own name, for lands assigned by him, without any formal reassignment. Power v. Holman, 2 Watts, 218; Wear- ing V. Ellis, 38 Eng/Law & Eq. 541. * 18 Ves. 72. See Lincoln v. Bassett, 9 Gray, 355. » Sill V. Worswiok, 1 H. PI. 665; Hunter v. Potts, 4 T. R. 182; and Phillips V. Hunter, 2 H. B. 402 ; Benfield v. Solomons, 9 Yes. 77. OF BANKRUPTS AND INSOLVENT DEBTORS. 59 The rules with regard to bankrupts apply by analogy to insol- vent debtors, who are equally considered as being devested of all right to maintain a suit in respect of any surplus to which they may eventually be entitled.^ Thus, where a bill was filed by an insolvent debtor against his assignees, and also against a debtor to his estate, stating collusion between them, and praying that the assignees might be removed, and that a specific performance of an agreement for a lease might be decreed against the debtor, to which bill a plea was put in by the debtor stating the assignment under the Act, Alcock V. Alcock, 5 De G. & Sm. 671 ; Wilton v. Hill, 2 De Gex, Mac. & G. 807 ; see ante, p. 32. " M'Dowl V. Charles, 6 John. Ch. 132; Vaughan v. Wilson, 4 Hon. & Munf. 453. The executor of a deceased husband cannot maintain a suit upon a chose in action which accrued during coverture to the wife of the deceased, who survived him, and which was not reduced into possession by him. Bond v. Conway, 11 Maryland, 512 ; Snowhill v. Snowhill, 1 Green Ch. 30. ' Lord Red. 47 ; vide etiam 3 Atk. 72(j ; and Bond v. Simons, ib. 21. * See Pattee v. Harrington, 11 Pick. 221 ; Needles v. Needles, 7 Ohio (N. S.), 432; McCasker v. Golden, 1 Bradf (N. Y.) 64; Williams v. Carle, 2 Stockt. (N. J.) 543. A right of the husband to administer on his wife's cJio.ses in action, for his own benefit, is held to be incompatible with the legislation of Vermont. Holmes v. Holmes, 28 Vermont, 7G5. 108 PERSONS DISQUALIFIED FROM SUING ALONE: band, although such personal representative would be the party entitled to the money ; and it is remarkable that in such a case the Ecclesiastical Court considers itself bound to grant adminis- tration to the next of kin of the wife, and not to the personal rep- resentative of the husband,^ although such administrator will be considered in Equity as a trustee for the representative of the hus- band.^ The same rule is observed by the Ecclesiastical Courts where the husband, having taken out administration to his wife, dies before he has administered all her property ; in such case also the Ecclesiastical Courts consider themselves bound to commit the administration de bonis non to the next of kin of the wife, and not to the representatives of the husband, although they are the parties entitled to the property.^ But although it is in general necessary that a husband, after the death of his wife, pending a suit instituted by them for the recov- ery of her personal property, should, in order to entitle him to proceed with the cause, take out administration to his wife, and then file a bill of revivor ; yet if any act has been done, the effect of which would have been to deprive the wife, in case she had out- lived her husband, of her right by survivorship, and to vest the property in the husband absolutely, the husband may continue the suit in his individual character without taking out administration to his wife.^ In such case, however, it will be necessary, if such act has taken place subsequently to the institution of the suit, to bring the fact before the Court, by amendment or supplemental bill. ^ Wms. on Executors, 544, 910. ^ Bryan v. Rooks, 25 Georgia, 622. But see Vaughan v. Parr, 20 Ark. 600. ^ Wms. on Executors, 244, 910. It has been held in Massachusetts, that the administrator of the estate of a married woman may maintain an action upon a note given and made payable to her during coverture, if during her life her hus- band did not reduce It to possession, or do any act indicating an intention to take it to himself. Allen v. Wilkins, 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 decease. It was then a chose in 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 (10th ed.), 123, 124; Garforth v. Bradley, 2 Vesey sen. 675 ; Kichards v. Richards, 2 B. & Ad. 447; Gaters v. Madeley, 6 Mees. & W. 423 ; Hart v. Stephens, 6 Queen B. 93 7 ; Scar- pellini v. Atcheson, 7 Queen B. 864 ; Jones v. Richardson, 5 Metcalf, 247, 249 ; Bryan v. Rooks, 25 Georgia, 622 ; Vaughan v. Parr, 20 Ark. 600. * See Blount v. Bestland, 5 Sumner's Vesey, 515, note (a), and cases cited. MARRIED WOMEN. 109 This distinction renders it important 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 him to proceed in a suit without assum- ing the character of her personal representative. Upon this subject it is to be observed, that a mere intention ^ to alter the property will not have the effect of giving the husband the absolute right in it, and that therefore an action at Law, or a bill in Equity, will not alter the property, unless there be a judg- ment or decree for payment to the husband alone.^ And so it has been decided, that an appropriation by an execu- trix of so much of the assets of her testator as was necessary to discharge 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 parties, such payment will be con- sidered as an alteration of the property ,3 unless it be paid to the joint account of the husband and wife,^ in which case, upon the death of the husband, the wife will be entitled by survivorship, both to the capital and to such dividends as may be in arrear. So where a married woman, committee of the estate and person of her lunatic husband, was entitled to stock standing in tlie name of a trustee for her, and this stock was by an order made in the lunacy transferred into the name of the Accountant-General in the matter of the lunacy, and part of it was afterwards sold out and applied in payment of costs in the lunacy. Lord Lyndhurst held, that the mode in which the stock had been dealt with amounted to a reduction into possession by the husband; because as pay- ' See Forrest v. Warrington, 2 Desaus. 254, 261 ; Barber v. Slade, 30 Vermont, 191. " See Strong v. Smith, 1 Metcalf, 476. To constitute a reduction to posses- sion, and a change of property of the wife's choses in action, the husband must do some positive and unequivocal act to reduce them to his own possession. Bar- ber V. Slade, 30 Vermont, 191 ; Elms v. Hughes, 3 Desaus. 155; Hall v. Young, 37 N. Hamp. 134; Andover v. Merrimack Co. 37 N. Hamp. 437; Snowhill r. Snowhill, 1 Green Ch. 36, 37; Glann v. Younglove, 27 Barbour (N. Y.), 480; Lockhart v. Cameron, 29 Alabama, 355 ; Walden v. Chambers, 7 Ohio (N. S.), 30; Wallace v. Taliaferro, 2 Call, 447. ' Packer v. Wyndham, Free. Ch. 412. * Laprimaudaye v. Teissier, 12 Beav. 206. VOL. I. 10 110 PERSONS DISQUALIFIED FROM SUING ALONE: ment by the trustee to the lunatic, or to the committee, would have been a reduction into possession ; so payment into Court to the credit of the lunacy was equally a reduction into possession for the lunatic.^ It was formerly lield, by Lord Hardwicke, that a promissory note given to a wife during coverture became the property of the husband absolutely, as the wife could not acquire property during coverture.^ But in Nash v. Nash,^ Sir Thomas Plumer, V. C, held, that a note given to a wife was a chose in action of the wife, and survived to her on the death of her husband ; ^ and that the ^ In re Jenkins, 5 Russ. 183. The right of a husband to reduce to his posses- sion the choses in action of the wife, cannot be exercised by a guardian appointed over him as an insane person, but the property continues vested in the wife. Andover v. Merrimack Co. 37 N. Ilamp. 437. ^ Lightbourne v. Holyday, 2 Eq. Ca. Ab. 1 ; 2 Mad. 135, n. ; Hodges v. Bev- erley, Bumb. 188. So it has been held in Massachusetts both as to promissory notes and as to legacies and distributive shares in intestate estates, the separate property of the wife ; the necessity for a reduction to possession seems to have been overlooked. Thus in Commonwealth v. Manley, 12 Pick. 173, it was determined by the Court that a promissory note given to a feme covert for her seperate use, for the consid- eration of her distributive share in an intestate estate, becomes immediately the property of the husband. This was afterwards confirmed in Stevens v. Beals, 10 Cushing, 291. See Shuttleworth v. Noyes, 8 Mass. 229; Tryon v. Sutton, 13 California, 490; Holland v. Moody, 12 Indiana, 170. And in Goddard v. John- son, 14 Pick. 352, it was even decided, that a husband might sue in his own right, after the death of his wife, for a legacy accruing to the wife during the coverture, although he had done nothing to reduce it to possession during her lifetime. The same was maintained in Hapgood v. Houghton, 22 Pick. 480, and in Albee v. Carpenter, 12 Cushing, 382, 386. See Strong v. Smith, 1 Metcalf, 476. But the Court seem to have receded from the doctrine in Jones v. Richardson, 5 Met- calf, 247, 249, and admitted that it was " contrary to decided cases." And in Allen V. Wilkins, 3 Allen, 321, 322, Bigelow C. J. said: " /n a certain sense, a chose in action which becomes the property of the wife during coverture, may be said to be the absolute property of the husband. He has the right to do any act to reduce it into his own possession. So long as he and his wife are both living, the entire jus disponendi is in him. And it was decided in this case, that the admin- istrator of the estate of a married woman may maintain an action on a note given and made payable to her during coverture, if during her life her husband did not reduce it to possession, or do any act indicating an intention to take it to himself. See Yates v. Sherrington, 11 M. & W. 42, and 12 M. & W. 855, as to the effect of bankruptcy of the husband upon a promissory note given to the wife dum sola. » 2 Mad. 133. * Allen V. Wilkins, 3 Allen, 321 ; Jones v. Richardson, 5 Metcalf, 247, 249; 2 MARRIED WOMEN. Ill circumstance 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 v^'ife 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 Doswell v. Earle,^ where an exec- utor, with the wife's consent, had paid a legacy, to which the wife was entitled upon the death of her mother, to the husband, upon his undertaking to pay the interest to the mother during her life, and the wife, after having survived the mother and her husband, filed a bill claiming the money against her husband's executors, the bill was dismissed. The mere proof of a debt due to the wife by the husband under a fiat or commission of bankrupt against the debtor, will not alter the property of the debt, and it still I'emains a chose in action} Kent (10th ed.), 122 ; Hall v. Young, 37 N. Hamp. 134, 145, 146 ; Coffin v. Mor- rill, 2 Foster (N. H.), 352 ; Snowhill v. Snowhill, 1 Green Ch. 30 ; Dane ;;. Al- len, 1 Green Ch. 415; Poindexter v. Blackburn, 1 Ired. Ch. 286. In Hall V. Young, 37 N. Hamp. 146, it is stated as the settled law of New Hampshire, that the personal property of the wife at the time of the marriage, or accruing to her, in her own right, subsequently, whether it consists in specific chattels, money, or clioses in action, and however it may fall to her, whether by legacy, gift inter vivos or causa mortis, as her distributive share in the estate of a person deceased, or otherwise, if it accrues independently of her husband, and not upon any consideration moving from or connected with him, it remains hers until he exercises his marital right by reducing it to possession. ^ Hunter v. Hallett, 1 Edw. Ch. 388. The receipt by a husband of dividends accruing from stock standing in his wife's name, is evidence of a reduction to pos- session of the dividends, but not of the stock. Burr v. Sherwood, 3 Bradf (N. Y.) 85. See Taggart v. Boldin, 10 Maryland, 104. If the husband takes a new security, in his own name, for a debt due to his wife while sole, her right by sur- vivorship is thereby destroyed.. Searing v. Searing, 9 Paige, 283. 2 2 Kent (10th ed.), 126; Schuyler v. Hoyle, 5 John. Ch. 196; Johnston v. Johnston, 1 Grant (Penn.), 468. » 12 Ves. 473. * A7ion. 2 Vern. 707. 112 PERSONS DISQUALIFIED FROM SUING ALONE: It seems, however, that an award by an arbitrator giving money to the husband, to which he was entitled in right of his wife, will have the effect of altering the property and giving it to the hus- band absolutely.^ With respect to the effect of a judgment at Law in altering the property of a wife's chose in action, much depends, as we have seen, upon whether the wife is or is not named in the proceeding. If the wife be not a party, (which she need not be at Law, if the right accrued to the wife during coverture,) a judgment in an action commenced by the husband will vest the property in the husband, so that in the event of the death of the husband before execution, the wife is deprived of her right by survivorship;^ this, however, will not be the case if the wife be a party, in which case, if the husband die after judgment and before execution sued out, the judgment survives to her.^ Decrees in Equity, as we have seen, so far resemble judgments at Law, that until the money is ordered to be paid, or declared to belong to the one or the other, the rights of the parties 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, however, a decree or order has been made by the Court for the payment of a sum of money to the husband and wife, and either party dies before payment, the money will belong to the survivor.^ With respect to the effect of an assignment by the husband of ' Oglander v. Batson, 1 Vern. 396. " Oglander v. Batson, 1 Vern. 396 ; Garforth v. Bradley, 2 Ves. 677. See Pierson v. Smith, 9 Ohio (N. S.), 554 ; Needles v. Needles, 7 Ohio (N. S.), 432. » Garforth v. Bradley, 2 Ves. 677. See 2 Kent (10th ed.), 126, 127 ; McDowl V. Charles, 6 John. Ch. 132 ; Searing v. Searing, 9 Paige, 283. * See Heygate v. Annesley, 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 Maryland, 1. * Hejgate v. Annesley, 3 Bro. C. C. 362; and see Tidd v. Lister, 3 De Gex, Mac. & G. 871. See Walker v. Walker, 25 Mis. (4 Jones), 367 ; Walden v. Chambers, 7 Ohio (N. S.), 30. « Nanney v. IMartin, 1 Ch. Rep. 239 ; Coppin v. , 2 P. AVms. 496 ; Forbes V. Phipps, 1 Eden, 502. If there be a decree in Equity In favor of the husband and wife, and the husband dies, the decree will survive to the wife, though her name might not have been necessarily joined in the proceedings. Muse v. Edger- ton, C. W. Dud. Eq. 179 ; Knight v. Brawner, 14 Maryland, 1. MARRIED WOMEN. 113 his wife's chose in action upon her right of survivorship, it has heen for some time settled, that where the chose in action is not capable of immediate reduction into possession, as where it is in reversion or expectancy, an assignment of it will not bar the wife's right by survivorship.^ It was formerly considered that there existed a difference be- tween legal and equitable choses in action, or, to speak more cor- rectly, between choses in action and equitable interests in the na- ture of choses in action, with respect to which latter it was thought that an assignment of them by the husband would, without any other reduction into possession before his death, have the effect of defeating the wife's right to them by survivorship ; and attempts were made to establish disthictions in this respect between assign- ments for valuable consideration and assignments without consid- eration or by operation of law, the former having been considered as barring the right of the surviving wife, and the latter as not having that effect. The decisions, however, of Sir Thomas Plum- er in Hornsby v. Lee,^ and Purdew v. Jackson,^ removed all doubts upon this subject ; and show that no such distinction as that supposed between legal and equitable choses in action, or be- tween assignments of the latter for valuable consideration, and voluntary or general assignments, exists."* Sir Thomas Plumer, V. C, after long argument and a diligent and careful investigation of all the cases which had occurred upon the point, expressed his opinion to be, " that all assignments made by the husband of the wife's outstanding personal chattel, which is not or cannot be reduced into possession, whether the assign- ment be in bankruptcy or under the Insolvent Act, or to trustees ' Crittenden v. Posey, 1 Head (Tenn.), 311 ; Duberley v. Day, 16 Beavan, 33 ; Rogers V. Ancaster, 11 Indiana, 300 ; Lynn v. Bradley, 1 Met. (Kentucky) 232 ; Hair V. Avery, 28 Alabama, 267. But it is held in Pennsylvania, that a husband may assign for a valuable consideration the wife's choses in action, whether they be presently reducible, or be reversionary interests, or possibilities. Webb's ap- peal, 21 Penn. 248 ; Smith's estate, 22 Penn. 130. * 2 Mad. 21 ; see also Hutchings v. Smith, 9 Sim. 137. ^ 1 Russ. 1. * It is said by Mr. Chancellor Kent, 2 Kent (10th ed.), 126, that a voluntary assignment by the husband of the wife's choses 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 v. Parsons, 9 N. Hamp. 321, 322 ; Saddiugton v. Kinsman, 1 Bro. C. C. (Perkins's ed.) 51, and notes ; Mitford v Mitford, 9 Sum- ner's Vesey, 87, note (b). 10* 114 PERSONS DISQUALIFIED FROM SUING ALONE: for the payment of debts, or to a purchaser for a valuable consid- eration, pass only the interest which the husband has, subject to the wife's 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 consideration of such chases 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 con- siders the assignment by the husband as amounting to an agree- ment that he will reduce the property into possession ; it likewise considers what a party agrees to do as actually done ; and there- fore, 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, from the recent cases, that the distinction which has been thus pointed out, between the effect of an assign- ment for valuable 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.* The point recently ^ 1 E.USS. 70. See also Honner v. Morton, 3 Russ. 65 ; Watson v. Dennis, 3 Kuss. 90 ; Stamper v. Barker, 5 Mad. 157. 2 3 Russ. 65. ^ The husband may assign, for a valuable consideration, his wife's cTioses in ac- tion to a creditor, free from the wife's contingent right of survivorshiji. Such an appropriation of the property is the exercdse of an act of ownership for a valua- ble purpose, and an actual appropriation of the chattel, which the husband had a ri 4 Vin. Abr. (d. a.) 117. * Leslie v. Baillie, 2 Y. & C. C. C. 91. WHO MAY BE DEFENDANTS TO A SUIT. 123 corporate, and all other persons, whatsoever, who are in any way interested in the subject-matter in litigation^ except only the Sov- ereign and the Queen-Consort and the heir-apparent, 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-Greneral.^ But although all persons are subject to be sued in Equity, there are some individuals whose rights and interests are so mixed up and blended with that of others, that a bill cannot be brought against them unless such other persons are joined with them as ^ Story Eq. PI. § 68. * In England, the King and Queen, though they may sue, are not liable to be sued ; and in America a similar exemption generally belongs to the Government or State. Story Eq. PI. § 69. This rule applies only where the State is a party to the record, and not where the State is only interested in the subject-matter of a suit brought against her officers in their official capacity in a Court of Chan- cery. Michigan State Bank v. Hastings, 1 Douglass, 225. No direct suit can be maintained against the United States, without the au- thority of an Act of Congress, nor can any direct judgment be awarded against them for costs. Marshall C.J. in Cohens v. Virginia, 6 Wheat. 411,412; United States v. Clarke, 8 Peters, 444; United States v. Barney, C. C. Maryland, 3 Hall, Law J. 128; United States v. Wells, 2 Wash. C. C. 161. But if an action be brought by the United States, to recover money in the hands of a party, he may, by way of defence, set up any legal or equitable claim he has against the United States, and need not in such case be turned round to an ap- plication to Congress. Act of Congress, March 3d, 1797, c. 74, §§ 3, 4 ; United States V. Wilkins, 6 AVheat. 135, 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. Robeson, 9 Peters, 319; United States v. Hawkins, 10 Peters, 125; United States v. Bank of the Metropolis, 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, 2 Dallas, 419. The law in this respect was, however, changed by an amendment of the Constitution of the United States, which (Art. XI. of the Amendments) declares that the judicial power of the United States shall not be construed to extend to any suit in Law or Equity, commenced or prosecuted against one of the United States by citizens of another State, or by citizens or subjects of any foreign State. This inhibition applies only to citizens or subjects, and does not extend to suits by a State- or by foreign States or Powers. The Cherokee Nation v. Georgia, 5 Peters, 1 ; New Jersey v. New York, 5 Peters, 284. They retain the capacity to sue a State as it was originally granted by the Constitution ; and the Supreme Court of the United States has original jurisdic- tion 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 also Ex parte Madrazzo, 7 Peters, 627 ; ante, 19, note. 124 PERSONS AGAINST WHOM A SUIT MAY BE INSTITUTED : co-defendants ; and there arc other individuals who, although their interests are distinct and independent, so that they may be sued alone upon the record, are yet incapable, from the want of matu- rity or weakness of their intellectual faculties, of conducting their own defence, and must therefore apply for and obtain the assist- ance 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, and persons who have been found idiots or lunatics, whose committees must be made co-defendants with the persons whose property is entrusted to their care.^ Under the second head are comprised infants, and all persons who although they have not been found idiots or lunatics by in- quisition, are nevertheless of such weak intellects as to be incapa- ble of conducting a defence by themselves, in both which cases the Court will appoint guardians for the purpose of conducting the defence on their behalf. There is another class of persons, who although they are under no personal disability which prevents their being made amenable to the jurisdiction of the Courts, yet from the circumstance of their property being vested in others, either permanently or tem- porarily, are not only incapable of being made defendants alone, but, as long as the disability under which they labor continues, ought not to be parties to the record at all. In this class are in- cluded bankrupts, insolvent debtors, outlaws, and persons attaint- ed or convicted of treason or felony. In the present Chapter the reader's attention will first be direct- ed to the cases in which the Queen's Attorney or Solicitor-General is made defendant to a suit, and then to the rules affecting cor- porations either aggregate or sole, when made defendants on the record. The reader's attention will then be called to the rules applicable to the several classes of persons above pointed out, and then to the metiiod of defending a suit in forma pauperis. And lastly, will be pointed out the consequences arising from a person who is a necessary party to a suit, being out of the jurisdiction of the Court. ' Ld. Red. 23. THE QUEEN'S ATTORNEY-GENERAL. 125 Section II. The Queen's Attorney -General. Although the Queen's Attorney-General, as representing 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 inter- ests of the Crown is not immediately concerned ; for where the rights of the Crown are immediately in question, as in cases in which he is in actual possession of the property in dispute, or where any title is vested in the Queen which the suit seeks to di- vest, 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 jus- tice, and upon a due and lawful 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 petition is presented to the Queen, who subscribes it with these words, " soil droit fait al partie,^' i. e. let right be done to the party; and thereupon it is delivered to the Chancellor, in forma juris exequend : i. e. to be executed according to law, and directions are given that the Attorney-General should be made a party to the suit.-^ The case of Viscount Canterbury v. The Attorney-General,* was a petition of right, in which the petitioner, Viscount Canterbury, ^ Reeve v. Attorney-General, cited 1 Ves. 445, 446. Legal Judic. in Chan- cery, stated 18. Story Eq. PI. § 69. Mr. Justice Story in a note to this section in his Equity Pleading remarks that, " In America no such general remedy by petition of right exists against the government, or, if it exists at all, it is a privilege created by Statute in a few States only. In cases where the government has an interest in the subject as a matter of public trust, it is presumed, that the Attorney-General may be made a defendant, as he may be in England." Ante, note. ^ Lord Cottenham, in Monckton v. Attorney-General, 2 Mac. & G. 412. ^ Redesd. Tr. Ch. PI. 30, 31. * 1 Ph. 306. 11* 126 PERSONS AGAINST WHOM A SUIT MAY BE INSTITUTED: claimed compensation from the Crown for damage alleged to have been done in the preceding reign, to some property of the peti- tioner, while Speaker of the House of Commons, by the fire which, in tlie year 1834, destroyed the two Houses of Parliament. To the petition a general demurrer 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 unliquidated damages. In the cases of the Baron De Bode, and in the matter of Vis- count Canterbury,^ the practice upon a petition of right was fully considered by Lord Cottenham, and the result is, that the petition is viewed by the Court of Ciiancery as in the nature of an appli- cation for an original writ. The Court, upon the petition, will neither adjudicate upon the merits or inquire into tlie facts. The whole duty of the Court at that stage of the proceedings is to permit the party to pursue the usual course of prosecuting his suit, and for that purpose a commission will be directed to issue, to inquire into the allegations of the petition. The order for the commission cannot, however, be obtained without direct application to the Court, and notice to the Attorney-General.^ When the relief sought is of a descrip- tion usually given by a Court of Equity, the petitioners will be considered as bound by the same equities as they would have been affected by had their claim been against a private individual.^ Although, however, in general a bill cannot be filed against the Attorney-General for the purpose of enforcing equitable rights against the direct interests of the Crown, yet in certain cases bills were formerly entertained on the Equity side of the Court of Ex- chequer, as a Court of Revenue, against the Attorney-General, as representing the Queen, for the purpose of establishing claims against the estates or revenues of the Crown, which in the Court of Chancery or other Courts could not have been instituted with- out proceeding in the first instance by petition of right.^ ■ » 2 Ph. 85. * In the matter of Catherine Rohson, 2 Ph. 84. « Monckton v. Attorney-General, 2 Mac. & G. 402. * Lutwich V. The Attorney-General, Reeve v. Attorney-General, 2 Atk. 223 ; THE QUEEN'S ATTORNEY-GENERAL. 127 There is another class of suits, against the Attorney-General, which were frequently instituted on the Equity side of the Court of Exchequer, as a Court of Revenue ; viz., suits for the purpose 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 Exchequer, that when public accountants had rea- son to be dissatisfied with the determination of such commissioners, either in disallowing their articles of discharge or in imposing sur- charges, they might proceed in the Equity side of the Exchequer, against the Attorney-General, and not against the commissioners ; and that the proper mode of proceeding in such cases was by bill only, and not by motion or petition.^ It was also held, that the statutes providing for the relief of accountants to the Crown were not confined to cases where the accoiuitant had actually been sued or impleaded, but that he might proceed immediately, even during the passing of his accounts, by bill in Equity, as it were quia timet? There seems no reason to doubt, that accountants to the Crown are now entitled to the same relief, and it also appears that the jurisdiction is still retained to the Court of Chancery.^ In cases in which the rights of the Crown are not immediately concerned, that is, when the Crown is not in possession, or a title vested in it is not sought to be impeached, but its rights are only incidentally involved in the suit, it is the continual practice to make the Attorney-General a party in respect of those rights.* Casberd v. Attorney-General, 6 Price, 411. See 4 & 5 Vict. c. 5, sec. 41, and page (4). ^ Colebrooke v. Attorney-General, 7 Pri. 146; Crawford v. Attorney-General, ibid. 1 ; Ex parte Colebrooke, 7 Pri. 87; Ex parte Durrand, 3 Anst. 743. " Colebrooke v. Attorney-General, uhi supra. « Attorney-General v. Kingston, 6 Jurist, 155; Attorney-General v. The Cor- poration of London, 8 Beav, 20, ante, page (7). * In a suit pending in the Supreme Court of the United States, relative to dis- puted 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 in- tervene, 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 pleadings or evidence on behalf of either of the States. Florida v. Georgia, 17 Howard, 478. This course of procedure was admitted to be at variance with the English practice in eases where the Government have an interest in the issue of the suit, but it was adopted to obvi- 128 PERSONS AGAINST WHOM A SUIT MAY BE INSTITUTED: The necessity of making the Attorney-General a party, is not confined to those cases in wliicli the interests of the Crown 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 before, the grantee of a chose in action from the Crown may either institute proceedings in the name of the Attorney-General, or in his own name, making the Attorney-Gen- eral a defendant to the suit ; and so in suits in which the 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 sub- ject-matter is cither wholly or in part money appropriated for gen- eral charitable purposes, because the Queen as parens patrice is supposed to superintend the administration of all charities, and acts in this behalf by her Attorney-General. In the cases, how- ever, of a legacy given to a charity already established, as where it is given to the trustees of a particular foundation, or to the treas- urer or other officer of some charitable institution, to become a part of the general funds of such foundation or institution, it has been held that the Attorney-General need not be a party, because he can have no interference with the distribution of their general funds.^ When it is said that in cases where a legacy is given to the trus- tees of a charity already in existence, for the general purposes of the charity, it will not be necessary in a suit concerning it, to ate an objection, that seemed to arise, that the United States could not, under the provisions of the Constitution, become parties in the United States Court, in the \e"s\ sense of the term, to a suit between two States. The otlier States were held to be concerned in the adjustment of the boundary in dispute, and their interests are represented by the United States. Taney C. J. said : " It would hardly become this tribunal, intrusted with jurisdiction where sovereignties are concerned, and with power to prescribe its own mode of proceeding, to do injus- tice rather than depart from English precedents. A suit in a court of justice between such parties, and upon sucli a question, is without example in the juris- prudence 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 analagous cases is therefore imprac- ticable, it furnishes a conclusive argument for adopting the mode proposed. For otherwise there must be a failure of justice." Several of the Judges dissented. 1 Wellbeloved v. Jones, 1 S. & S. 41 ; Chitty v. Parker, 4 I3ro. 38 ; Monil v. Lawson, 4 Vin. 500, Tl. 11 ; 2 Eq. Ca. Ab, 267. THE QUEEN'S ATTORNEY-GENERAL. 129 make the Attorney-General a defendant ; the rnle must be under- stood to ap[)ly only to those charities which are of a permanent nature, and whose objects are defined ; for it has been determined, that where legacies are given to the officers of a charitable institu- tion whicli is not of a permanent nature, or whose objects are not defined, it will be necessary to make the Attorney-General a party to a suit relating to them. And even in cases where a legacy is given to the trustees of a charity already in existence, the trusts of whicli are of a permanent and definite nature, unless it appears from the terms of the bequest that the trusts upon which the leg- acy 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 neces- sary party only where the charity is in the nature of a general charity, and that where it is merely a private charity, it will not be necessary to bring him before the Court ; thus, where the suit related to a voluntary society, entered into for tlie purpose of pro- viding a weekly payment to such of the members as should be- come necessitous, and their widows. Lord. Hardwicke overruled the objection that the Attorney-General was not a party, because it was in the nature only of a private charity.^ The recent Act for the better administration of Charitable Trusts ^ has, in many respects, given a much simpler and more perfect course for obtaining redress in all cases of the mismanage- ment of property devoted to charitable purposes, and will material- ly diminish the number of applications to the Court of Chancery on such subjects ; but this Act has not superseded the functions or duties of the Attorney-General. For, by the 18th section it is provided, " that it shall be lawful for her Majesty's Attorney- General, acting ex officio^ to make such application, and take or prosecute such proceedings with respect to any cliarity, in the Court of Chancery or otherwise, as may to him seem fit, as if this Act had not passed ; and that nothing in this Act contained shall ^ Corporation of the Sons of the Clergy v. Mose, 9 Sim. 610. A bill in Equity for the transfer of a public charity to new trustees may be filed by the present trustees in their own names, making the Attorney-General a defendant. Har- vard College V. Society for Promoting Theological Education, and others, 3 Gray, 280 ; Governors of Christ's Hospital v. Attorney-General, 5 Hare, 257. ^ Anon. 3 Atk. 277. » 16 & 17 Vict. c. 137. 130 PERSONS AGAINST WHOM A SUIT MAY BE INSTITUTED: be construed as dispensing with the suit or allowance of her Maj- esty's Attorney-General, with respect to any proceeding not being an application under the jurisdiction created by this Act, where such suit or allowance was necessary before the passing of this Act." 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.^ The usual course is for him to put in a general answer, stating merely that he is a stranger to the matters contained in the bill, and that he hopes the interest of the Crown will be taken care of.^ In cases, however, in which the interest of the Crown, or the purposes of public justice require it, a full answer will be put in.^ The answer of the Attorney-General is put in without oath, and is usually signed by him. And it seems that such an answer is not liable to be excepted to, even though it be to a cross bill, filed by the defendant in an information for the purpose of obtaining a discovery of matters alleged to be material to his defence to the information. We have, however, seen before,* that where a cross bill is filed against the Attorney-General, praying relief as well as a discovery, he cannot protect himself from answering by means of demurrer : ^ but whether he could by such means protect him- self from answering a mere bill of discovery, does not appear to have been decided ; it is most probable that he might, and that the Court would in such a case, if a discovery were wanted from the Crown, put the party to prefer his petition of right.^ During the vacancy of the office of Attorney-General, the Solici- tor-General may be made a defendant to support the interests of the Crown ; ^ and it has happened, that where there has been an information by the Attorney-General, the object of which has been to set up a general claim on behalf of the Crown at variance with the interests of a public charity, the Solicitor-General has been made a defendant, for the purpose of supporting the interests of ' Davison v. Attorney-General, 5 Price, 398, n. « 1 Newl. 103. ^ Colebrooke v. Attorney-General, 7 Price, 192 ; Craufurd v. Attorney-Gen- eral, 7 Price, 1. * Supra. » Dean v. Attorney-General, 1 Y. & C. Exchr. Reports, 209. • Ibid. ' Lord Red. 81. GOVERNMENTS OF FOREIGN STATES AND AMBASSADORS. 131 such charity against the general claim of tlie Attorney-General. The means of compelling the appearance or answer of the Attor- ney-General will be found in the subsequent Chapters upon Pro- cess. Section III. Governments of Foreign Slates and Ambassadors. It has before been stated, that the Sovereign of a foreign coun- try recognized by this government, may sue either at Law or in Equity, in respect of matters not partaking of a political charac- ter : ^ and his liability to be sued in a case where he himself was plaintiff, has been established upon the principle, that by suing here, he submits himself to the jurisdiction of the Court in which he sues. 2 A cross bill may, therefore, be filed against him, and he is bound to answer upon oath. The question whether a foreign Sovereign, who has not submit- ted to the jurisdiction, can be sued in the courts of this country, was raised in the case of the Duke of Brunswick v. The King of Hanover.^ 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 throne of Hanover, and exercised the rights of an English peer. The general object of the suit was to obtain an account of property belonging to the plaintiff, alleged to have been possessed by the defendant, under color of an instru- ment creating a species of guardianship, unknown to the law of England. None of the acts complained of took place in this coun- try, or were done by the defendant before he became King of Han- over. Moreover, though it was not necessary to decide the ques- tion, the Court seemed to consider that they were of a political character. The defendant demurred to the bill, and in giving judgment upon the demurrer. Lord Langdale, M. R., elaborately reviewed all the authorities and arguments upon the subject ; and came to the conclusion, that " his Majesty the King of Hanover is, and 1 Page 18 2 Hullett V. King of Spain, 2 Bligh, N. S. 47, » 6 Beav. 1. 132 PERSONS AGAINST WHOM A SUIT MAY BE INSTITUTED: ought to be, exempt 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 that being a subject of the Queen, he is and ought to be liable to be sued in the Courts of this country, in respect 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 this realm, or any act, as to which it may be doubtful whether it ought to be attributed to the character of Sovereign, or to the character of subject, that it ought to be presumed to be attributable rather to the character of Sov- ereign, than to the character of subject." Accordingly, it not ap- pearing that the alleged acts and transactions of the defendant were of such a description as could render him liable to be sued in this country, the demurrer was allowed. It further appears from the last-mentioned case, that as a sover- eign prince \^ prima facie entitled to special immunities, it ought to appear on the bill, that the case is not one to which such special immunities extend. There have moreover been cases, in 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 expedient and proper to make such Sovereign or State a party. The effect has been to make the suit perfect as to parties, but as to the Sov- ereign made a defendant, the effect has not been to compel, or at- tempt to compel, him to come in and submit to judgment in the ordinary course, but to give him an opportunity to come in and claim 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 processes sued forth and prosecuted, whereby 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, shall be deemed to be utterly null and void. This Act professes to be, and has frequently been adjudged to be, declar- atory,^ and in confirmation of the Common Law ; and, as Lord Tenterden said, " it must be construed according to the Common Law, of which the law of nations must be deemed a part." The 5th section of the Act excepts the case of a bankrupt in the ser- vice of any Ambassador. > 6 Beav. 39. " 1 Barn. & Cress. 562. CORPORATIONS. 133 Cases have frequently occurred, in which 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 immunity ex- tending only to such things as are connected with his office and ministry, and not to transactions and matters wholly distinct and independent of his office and its duties.^ Section IV. Corporations. It has been stated before,^ that corporations aggregate must be sued by their corporate name ; that is, if they are corporations existing by Royal charter, they must be sued by their name of foundation, though it has been said that if a corporation be known by a particular name, that it is sufficient to sue it by that name.^ This, however, must be confined to the case of a corporation by prescription ; for it is said that if a corporation is created by the Queen, and the commencement of it appear by the record, it can have no other name by use, nor be named otherwise than the Queen by her letters-patent has appointed, and the Court will not permit it to be sued by any other name.* A corporation aggregate which has a head, cannot be sued with- out it, because without its head it is incomplete.^ It is not, how- ever, necessary to mention the name of the head ; ^ nor is it in gen- eral proper to make individual members of aggregate corporations parties by their proper Christian and surnames, though cases may occur where this will be permitted for the purpose of compelling a * 6 Beav. 52. As to the rights and exemptions of Ambassadors, see 1 Kent (10th ed.), 45 et seq. 191. * Ante, p. 21. ' Bro. Corp. 40. * A corporation can be called to answer only by its corporate name. Binney's case, 2 Bland. 99. ' 2 Bac. Ab. tit. Corp. [E.] e ; pi. 2. * 3 Salk. 133 ; 1 Leon. 307. VOL. I, 12 134 PERSONS AGAINST WHOM A SUIT MAY RE INSTITUTED: discovery from them of some fact which may rest in their own knowledge.^ It has been thought that, as a corporation 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 regu- lations, as domestic corporations ; ^ and accordingly in some States foreign corporations liave been held to answer to actions in their Courts.^ Corporations created by any other State, having proper- ty in Massachusetts, shall be liable to be sued and their ])roperty 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.'^ In the case of the Attorney-General v. Wilson,^ a corporate body suing both as plaintiff and relator, sustained a suit against five persons formerly members of tlie corporation, in respect of unau- thorized acts done by them in the name of the corporation.^ The practice of making the officers or servants of a corporation parties to a suit for the purpose of eliciting from them a discovery upon oath of the matters charged in the bill, has been too frequent- ly acted upon and acknowledged, to be now a matter of doubt. The first case which occurs upon the point is an anonymous one, in ' Dummer v. Corporation of Chippenham, 14 Ves. 255. ^ Bushel V. Commonwealth Insurance Co. 15 Sersj. & R. 176; Anojell and Ames on Corp. (6th ed.) § 402. * Day V. Essex County Bank, 13 Vermont, 97 ; St. Louis Perpetual Ins. Co. v. Cohen, 9 Missouri, 422 ; Angell and Ames on Corp. (6th ed.) § 402-407. * Genl. Sts. of Mass. c. 68, § 15 ; Silloway v. Columbian Ins. Co. 8 Gray, 199. See Libby v. Hodgdon, 9 N. Hamp. 394 ; Moulin v. Ins. Co. 4 Zabrisk. 222^ Thomas v. Merchants' Bank, 9 Paige (N. Y.), 215; Nash v. Rector, &c. of the Evangelical Lutheran Church, 1 Miles, 78 ; Peckham v. North Parish in Haver- hill, 16 Pick. 274 ; Erickson v. Nesmith, 4 Allen, 237, 6 Cr. & Ph. (1) ; Angell and Ames on Corp. § 676. ' There are cases in which a bill in equity will lie against a corporation for di- verting or misapplying its funds or credit, &c., by one of its members. Cunlitfe v. Manchester and Bolton Canal Co. 1 My. & Russ. 131, note; Dodge v. Wolsey, 18 Howard (U. S.), 331 ; INLinderson v. Commercial Bk. 28 Penn. 379 ; Bait. & Ohio II. R. Co. V. City of Wheeling, 13 Gratt. 40; Angell and Ames on Corp. (6th ed.) § 391. An individual stockholder may maintain a suit in Equity against the directors of a corporation for misconduct in oflice. Allen v. Curtis, 26 Conn. 456 ; Schley v. Di.Kon, 24 Georgia, 273 ; Kean v. Johnson, 1 Stock. (N. J.) 401 ; Binney's case, 3 Bland, 142 ; Revere v. Boston Copper Co. 15 Pick. 351 ; Brown V. Vandyke, 4 Halst. Ch. (N. J.) 795. See Durfec v. Old Colony, &c. R. R. Co. 5 Allen, 230. CORPORATIONS. 135 1 Vernon,^ where a bill having been filed against a corporation to discover writings, and the defendants answering under their com- mon seal, and not being sworn, would answer 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 Glascott V. Copper Miners' Company ,2 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 corpo- ration 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 corporation at large. The de- murrer was, however, overruled.^ It may be observed, that where the officer of the corporation from whom the discovery is sought is a mere witness, and the facts he is required 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 * Page 117 ; and see Wych v. Meal, 3 P. Wms. 310. The recent alterations of the law, under which interested persons are enabled to give evidence, renders comparatively unnecessary the practice of making officers of corporations parties for the purpose of discovery. "11 Sim. 305 ; see also the case of Moodaley v. Morton, 1 Bro. C. C. 4G9. * Officers and members of a corporation may be made parties to a bill so far as the bill seeks for discovery, though they have no individual interest in the suit, and no relief can be had against them. Wright v. Dame, 1 Metcalf, 237 ; Story Eq. PI. § 235 ; 2 Story Eq. Jur. § 1500, 1501; Cartwright v. Hateley, 1 Sumner's Vesey, 293, note (1) ; Hare, 83 ; Le Texier v. Margrave and Margra- vine of Anspach, 5 Vesey, 322; Fenton v. Hughes, 7 Sumner's Vesey, 287, Per- kins's note (a) ; Brumley v. Westchester Co. Manuf. Co. 1 John. Ch. 366 ; Vermllyea v. Fulton Bank, 1 Paige, 37; Walker v. Hallett, 1 Alabama (N. S.), 379. See Garr v. Bright, 1 Barbour Ch. Rep. 157; 1 Grant Ch. Pr. 28; Mas- ters V. Rossie Galena Lead Mining Co. 2 Sand. (N. Y.) Ch. 301 ; Mclntyre v. Trustees of Union College, 6 Paige, 229; Many v. Beekman Iron Co. 9 Paige, 188 ; Governor & Co. of the Copper Mines, 5 Lond. Jur. R. 264 ; Bevans v. Ding- man's Turnpike, 10 Barr, 174 ; McKim v. Odom, 3 Bland (Md.) Ch. 421. The reason for the rela.xation of the general rule, that a mere witness cannot be made defendant, in the case of a corporation, is that the answer of a corporation is not put in under oath, and that hence an answer is required from some person or persons capable of making a full discovery, as the agents or the officers of a corporation. Angell & Ames on Corp. § 676. See Howell v. Aikoiore, 1 Stock. (N. J.), 92. 136 PERSONS AGAINST WHOM A SUIT MAY BE INSTITUTED: purpose of obtaining from him a discovery as to the times when the stock in question in the cause had been transferred, and he demurred to the bill, the demurrer was allowed on the ground that the officer was in that case merely a witness.^ But although it is not an unusual practice to make the clerk or other principal officer of a corporation a party to a suit against such corporation for the purpose of eliciting from him a discovery of entries or orders in the books of the corporation, yet where such is not the case, it is still the duty of the corporation, when informed by the information of the nature and extent of the claims made upon them, to cause diligent examination to be made, before they put in their answer, of all deeds, papers and muniments in their possession or power, and to give in their answer all the informa- tion derived from such examination.^ Where a suit is instituted against a corporation sole, he must appear and defend, and be proceeded against in the same manner as if he were a private individual. But where corporations aggre- gate are sued in their corporate capacity, they must appear by at- torney, and answer under the common seal of the corporation ;^ but if the members of which the corporation consists be charged as private individuals, they 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 common seal refuses to affix it, application must be made to the Court of Queen's Bench for a mandamns to compel him, and in the mean time the Court of Chancery will stay the process against the corporation.* ^ How v. Best, 5 Mad. 19. A mere witness ouglit not to be made a party to a bill, although the plaintiff may deem his answer more, satisfactory than his ex- amination. Story Eq. PI. § 234, 519, and note; 2 Story Eq. Jur. § 1499 ; Wi- gram. Discovery (Am. ed.), p. 165, § 235; Hare, 65, 68, 73, 76; Newman v. Godfrey, 2 Bro. C. C. (rerkins's ed.) 332; Howell v. Ashmore, 1 Stock. (N. J.),- 82. See Wright u. Dame, 1 Metcalf, 237; Post v. Boardman, 10 Paige, 580; Norton r. AVoods, 5 Paige, 251. * Attorney-General v. The Burgesses of East Retford, 2 Mylne & K. 35. ' 1 Grant Ch. Pr. 120; Brumlcy v. Westchester Manuf Society, 1 John. Ch. 366; Bait. & Ohio R. R. Co. v. City of Wheeling, 13 Grattan, 40; Angell and Ames on Corp. § GG5 ; Fulton Bank v. New York & Sharon Canal Co. 1 Paige, 311 : Vcrmilyea v. Fulton Bank, 1 Paige, 37. The answer of a corporation should be signed by the President. It is usual for the Secretary or Cashier to sign it also. 1 Barbour Ch. Pr. 156. * Rex V. Wyndhara, Cowp. 377 ; 2 Bac. Ab. tit. Corp. 13 ; Angell and Ames on Corp. § 666. CORPORATIONS. 137 The process for compelling the appearance and answer of a cor- poration will be found in the future Chapters under those heads. It should be stated here, that by the Act 1 Vict. c. 73, s. 3, her Majesty is empowered to grant letters-patent, providing that suits against a company shall be carried on in the name of one of the officers of the company appointed for that purpose. And by sect. 4 it is enacted, that it shall and may be lawful, in and by such let- ters-patent, so to be granted to any such body or company as afore- said, to declare and provide that the members of such company or body so associated as aforesaid, shall be individually liable in their persons and property for the debts, contracts, engagements and liabilities of such company or body, to such extent only per share as shall be declared and limited in and by such letters-patent ; and the members of such company or body shall accordingly be indi- vidually liable for such debts, contracts, engagements and liabili- ties respectively, to such extent only per share as in such letters- patent shall be declared and limited, such liability nevertheless to be enforced in such manner and subject to such provisions as are hereinafter contained. It will be recollected, that amongst the privileges conferred upon companies, by the 7 Haycock v. Haycock, 2 Ch. Ca. 124. So where a legacy is given to A and B in equal iiioictios, a bill will lie by A for his moiety, without making B a party to the suit. Hughson v. Cookson, 3 Young & Coll. 578. « Stucker v. Stucker, 3 J. J. Blarsh. 301 ; Wing v. Davis, 7 Greenl. 31 ; Pal- mer V. Earl of Carlisle, 1 Sim. & Stu. 423 ; Story Eq. Tl. § 201 ; Noyes v. Saw- yer, 3 Vermont, 160 ; Woodward v. Wood, 19 Alabama, 213. » 1 Bro. C. C. 368. * Montgomerie v. the Marquis of Bath, 3 Ves. 560. In Mr. Belt's note (1) to Lowe V. Morgan, 1 Bro. C. C. (Perkins's cd.) 368, he submits, that the decision in Montgomerie v. M. of B., ubi supra, is evidently wrong. See also Story Eq. PI. § 201. OF NECESSARY PARTIES TO A SUIT. 205 In a late case, however, before Sir John Leach, Y. C, it was de- termined, that there can be no redemption or foreclosure unless all the parties interested in the mortgage-money are before the Court; and, on this 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. As a person entitled to a part only of the mortgage-money can- not foreclose the mortgage without bringing the other parties inter- ested in the mortgage-money before the Court, so neither can a mortgagor redeem the mortgaged estate without making all those who have an equal right to redeem with himself parties to the suit.^ For this reason it was held, in Lord Cholmondeley v. Lord Clin- ton,2 that where two estates are mortgaged to the same person for securing the same sum of money, and afterwards the equity of redemption of one estate becomes vested in a different party from the other, the owner of one cannot redeem his part separately. The mortgagee 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.^ The same rule prevailed in Palk v. Lord Clinton,* which dif- fered 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 whole property. * But in Piatt v. Squire, 12 Metcalf, 494, it was held that one of two joint as- signees of a second mortgage could maintain a bill, in his individual name, to re- deem the prior mortgage, without joining his co-assignee. Dewej' J. said : " The plaintiff has a legal interest, as assignee of that mortgage, although not the entire interest. His redemption will enure to the benefit of his co-tenant. He can only redeem by payment of all claims of the defendant under the prior mortgage, to the same extent as would have been paid if the co-assignee were a party to the bill ; and therefore the defendant can sustain no injury." When this case came again before the Court, the same learned Judge said : " It was somewhat question- able, whether the plaintiff, as joint assignee, could rely upon this mortgage to supr port a bill to redeem filed by him alone. But the Court held that he might." Piatt V. Squire, 5 Cushing, 553. « 2 Jac. & W. 3, 134. ' Story Eq. PI. § 182 ; Bailey v. Myrick, 36 Maine, 50. * 12 Ves. 48. VOL. 1. 18 206 OF PARTIES TO A SUIT. In the above cases, the mortgage of the two estates was for the same sum of money, and was part of the same transaction. The rule, however, has been extended to cases where a mortgage has been of two disthict estates to the same mortgagee for securing different sums of money ; and it has been decided in many cases, 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 tliis 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 tlie 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 other a mortgage of realty .^ It does not, however, hold longer than while both mortgages continue united in the same mort- gagee ; so that if a mortgagee, having two distinct mortgages on 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 which requires that in a bill filed for the purpose of redeeming a mortgage, the plaintiff should bring before the Court all those who, as well as himself, have a right to redeem, has been held to apply to a second incumbrancer filing a bill to redeem a prior incumbrance, who must, in such case, bring the mortgagor, as well as the prior incumbrancer before the Court.* This is a rule of long standing, and was followed by Lord Thurlow, when his adherence to it was very inconvenient in consequence of the heir at law of tiie mortgagor being abroad. His lordship then said, that it seemed to him " impossible that a second mortgagee should come into Court against tlie first mortgagee without making tiie mortgagor or his heir a party. The natural decree is, that the » Ireson v. Denn, 2 Cox, 425. See Story Eq. PI. § 287. 2 Jones V. Smith, 6 Ves. 229, n. « Willie V. Lujrg, 2 Eden, 78. * Thompson v. Baskerville, 3 Ch. Rep. 215. OF NECESSARY PARTIES' TO A SUIT. 207 second mortgagee shall redeem the first mortgagee, and that the mortgagor shall redeem him or be foreclosed," ^ The same rule was confirmed by Lord Eldoii, in Falk v. Lord 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 please, 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.* For the same reason it has been held that a third mortgagee buying in the first, need not make the sec- ond mortgagee a party to a bill to foreclose the mortgagor. Upon the same ground it is also considered unnecessary, in a bill by 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 ben- efit of such prior charges ; and, therefore, to a bill for the applica- tion of a surplus after payment of debts or legacies, or other prior incumbrances, the creditors, legatees or incumbrancers need not be parties.*^ Upon the same principle, where, on a bill filed by a creditor against the representative and heir of a trader, for the purpose of having certain freehold and copyhold estates, which had been de- vised to him, sold, the annuitants and legatees under the will of the father were made parties, but the Master of the Rolls held, 1 Fell V. Brown, 2 Bro. C. C 276. 2 12 Ves. 48. « Story Eq. Pl.-§ 84, 186, 195. See Hallock v. Smith, 4 John. Ch. 649; 4 Kent (10th ed.), 220. In a suit for the foreclosure of a mortgage of real 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 Califor- nia, 504. So the wife should be made a party to a bill to foreclose a mortgage executed by her and her husband. Johns v. Reardon, 3 Maryland Ch. Decls. 57. * Richards v. Cooper, 5 B. 304 ; Lord Hollis's case, cited 3 Ch. Rep. 86. Story Eq. PI. § 193. See Person v. Merrick, 5 Wis. 231 ; Wright v. Bundy, 11 Ind. 398- * Rose V. Page, 2 Sim. 471. « Lord Red. 172. 208 OF PARTIES TO A SUIT. that as their incumbrances were prior to the interest of the son, they ought not to have been parties.^ The same principle which calls for tlie presence of all persons liaving 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 under himself;^ there- fore, if there are several derivative mortgagees, they must all be parties to a bill of 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 Renvoize V. Cooper,^ that where a mortgagee has devised his interest in the mortgage in such a manner as to pass not only the mortgage money but 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.^ Tiie 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 share of a partnership adventure, it is in gen- eral necessary that all persons having shares in the same adven- ture should be parties,^ and a residuary legatee seeking an account > Parker v. Fuller, 1 Russ. & M. 656. " See Story Eq. PI. § 199 ; 4 Kent (10th ed.), 220 ; Western Reserve Bank v. Potter, 1 Clarke, 432. ' Ilobart V. Abbott, 2 P. Wms. 643. * Miller v. Henderson, 2 Stockt. (N. J.) 320. * Wad. & Geld. 371. « Graham v. Carter, 2 Hen. & Munf. 6. ' Lewis V. Nangle, 2 Ves. 631. « Cholmondeley v. Clinton, 1 T. & R. 104, 116. ' Ireton v. Lewis, Rep. t. Finch, 96 ; MolTatt v. Farquharson, 2 Bro. C. C. 338, OF NECESSARY PARTIES TO A SUIT. 209 and share of the residue, must bring before tlie Court all the par- ties interested in that residue.^ And so where a moiety of a resi- due was given to one of the defendants for hfe, 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 iiiterests depended upon such a re- mote contingency, ought to be before the Court.^ Upon tiie same principle it is, that in suits by next of kin against a personal representative for an account, the Court requires that and Mr. Belt's note (1); Cullen v. Duke of Queensberry, 1 ib. 101, and Mr. Belt's note ; Dozier v. Edwards, 3 Litt, 72 ; Story Eq. PI. § 166 ; Story Partn. § 449 ; CoUyer Partn. (Perkins's ed.) § 361 ; Wells v. Strange, 5 Georgia, 22, When a bill in Equity, brought by one of four partners, against one only of the other three, for an account &c. alleges that the other two are not within the jurisdiction of the Court; that all the others have received their full share of the partnership effects ; and that the defendant has received much more than his share, and the plaintiff much less ; a demurrer to the bill, for non-joinder of the other partners as defendants, will not be sustained. Towle v. Pierce, 12 Metcalf, 329. See Story Eq. PI. § 78 ; Vose v. Philbrook, 3 Story C. C. 335. Representatives of a deceased partner should be made parties to a bill to dissolve a partnership, and the bill may be amended for that purpose. Buchard v. Boyce, 21 Georgia, 6. To a claim seeking payment of a partnership 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. ^ Parsons v. Neville, 3 Bro. C. C. 365. In Cockburn v. Thompson, 16 Ves. 328, Lord Eldon said, this admits of exception, where it is not necessary, or in- convenient. Story Eq. PL § 89, and notes, § 203, 204 ; Pritchard v. Hicks, 1 Paige, 253 ; Sheppard v. Starke, 3 Munf. 29 ; Brown v. Ricketts, 3 John. Ch. 533 ; Davoue v. Fanning, 4 John. Ch. 199 ; West v. Randall, 2 Mason, 181, 190 - 199 ; Huson v. M'Kenzie, Dev. Eq. 463 ; Arendell v. Blackwell, ib. 354 ; Betliel V. Wilson, 1 Dev. & Bat. Eq. 610. In Brown v. Ricketts, 3 John. Ch. 553, Mr. Chancellor Kent seems to have thought, that all the residuary legatees should be technically parties by name. So in Davoue v. Fanning, 4 John. Ch. 199. It has, however, been Intimated and maintained in other cases, that a residuary legatee mlffht sue in behalf of himself and all others, without making them tech- nically parties. See Kettle v. Crary, 1 Paige, 417, 419, 420, and note; Ross v. Crary, 1 Paige, 416; Hallett v. Hallett, 2 Paige, 19, 20; Egbert v. Woods, 3 Paige, 517. Rule 1, adopted in 15 & 16 Vict. c. 86, provides that "any residu- ary 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." * Skerrit v. Birch, 3 Bro. C. C. 229 (Perkins's ed. note) ; Davies v. Davies, 11 Eng. Law & Eq. 199. A contingent interest depending on the event of a suit is not such an Interest as to make the person having it a necessary party. Bar- bour V. Whitlock, 4 Monroe, 180. See Reid v. Vanderheydeu, 5 Cowen, 719. 18* 210 OF PARTIES TO A SUIT. all the next of kin should be before it ; ^ and it is to be observed, that in alP cases where the parties claim under a general descrip- tion, or of being some of a class of persons entitled, the Court will not make a decree without being first satisfied that all the in- dividuals of the class, or who come under the general description, are before it. For this purpose the Court, in cases of this descrip- tion, before directing an account, or other relief prayed by the hill, refers it to one of the Masters to inquire who the individuals of the class, or answering the general description, are ; and then, if it turns out that any of them are not before the Court, the plaintiff must file a supplemental bill, for the purpose of bringing them in before the cause is finally heard .^ And according to Sir James Wigram, V. C, in an administra- tion suit, in which inquiries are necessary to ascertain who are the parties beneficially 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 report. But where the parties inter- ested are the children of a party to the suit, or are persons of a class in such circumstances, that the Court may be reasonably satis- fied, at the hearing, that all parties beneficially interested are par- ties to the record, the Court may, at the time of directing the in- quiries, also order that, if the Master shall find that all the persons 1 See Noland v. Turner, 5 J. J. Marsh. 179 ; West v. Randall, 2 Mason, 181 ; Ivellar v. Beelor, 5 Monroe, 573; Oldham v. Collins, 4 J. J. Marsh. 50; Story Eq. ri. § 89, and cases cited. See also Rule 1 in preceding note. - Where one of the next of kin of an intestate, who died in India, procui'ed letters of administration to his effects here, it was held that he might sue the person who had taken out an Indian administration, and had afterwards come to this country, without making the rest of the next of kin parties. Sandilands v. Innes, 3 Sim. 2G4. But see Story Eq. PI. § 179; Story Conf Laws, § 513, 614. « Sed vide 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 are unknown, or cannot be found, and that fact is charged in the bill. lb. In such case, the bill may properly be filed on behalf of the plaintiff, and also of all the other persons, who may be entitled as distributees. lb. Rule 3, adopted in 15 & 16 Vict. 86, provides that "any residuary devisee or heir may, without serving any co-residuary devisee or co-heir have a decree " for the administration of the estate of a deceased person. And Rule 5, 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 may sue on behalf of himself and of all persons having the same interest." OF NECESSARY PARTIES TO A SUIT. 211 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 reasonaljly clear that all the persons interested are parties.^ The rule that all persons interested in an account should be made parties to a suit against the accounting party, will not apply ■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 re- quiring the other cestuis que trust, who have come of age before, 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 cargo of tobacco, for a discovery and account as to that moiety, without making the per- son interested in the other moiety a party, and it appeared that the defendants had distinguished in their accounts between him and the plaintitfs, and had divided the funds, and kept separate accounts, the Court held that the owner of the other moiety was not a necessary party to the suit.^ And where A. B, C, being partners together, and 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 D. without 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 sum in the hands of trustees, the co-ces- tuis que trust are not necessary parties.^ In some cases, where a ^ Baker v. Harwood, 1 Hare, 327 ; see also Hawkins v. Hawkins, 1 Hare, 643. 2 D'Wolf u. D'Wolf, 4 Rhode Isl. 450. So where the division of an estate in pursuance of a will, is not to be made at one and the same time, but at the sev- eral periods when any one or more of the legatees shall separate from the testa- tor's family, it is not necessary that all the legatees be made parties to each suit in Chancery for a division ; but only those entitled to participate in the division tlien in question. Branch v. Booker, 3 Munf. 43. So where it appeared, that some of the legatees had obtained decrees, in another suit, for their portions, it •was proper to dismiss the bill as to them, they having been made defendants. Moore v. Beauchamp, 5 Dana, 71. ^ Weymouth v. Boyer, 1 Ves. J. 416. * Brown v. De Tastet, Jac. 284. Vide etiam, Bray v. Fromont, 6 Mad. & Geld. 5. ^ Perry u. Knott, 5 Beav. 293; Smith v. Snow, 3 Mad. 10; Story Eq. PI. § 207, 212. 212 OF PARTIES TO A SUIT. party having a joint interest with the plaintiffs 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 ac- count 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 ; a^d that if it appeared that he had any right, he might come before the deputy remembrancer 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 different persons under a trust for sale, without bringing all the other persons in- terested in the same estate before the Court, was discussed before Lord Eldon, in the case of Goodson v. Ellison ; ^ in that case the persons beneficially interested in an estate vested in trustees had, many years before the commencement of the suit, proceeded to sell the entirety in various lots, one of which was purchased by the plaintiffs, and all the persons beneficially interested joined in con- veying it to him. The trustee, however, did not join, and upon 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 pro- nounced by Lord Gifford, M. R., who directed that they should pay the costs of the suit. Upon appeal, however, to Lord Eldon, his lordship expressed considerable doubts whether a trustee could be called upon to divest himself of a trust by conveying different par- cels of the trust property at different times, and whether it was not therefore necessary to have all the other cestuis que trust 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 was the case of an old trust, he thought the Court was bound to inquire into the facts, and that the trustees had a right to have the conveyance settled in the Master's office. * Story Eq. PI. § 78-89, and cases cited; Milligan v. Milledge, 3 Cranch, 220; West v. Kandall, 2 ]\Iason, 196; Weymouth v. Boyer, 1 Sumner's Vesey, 416, note (c), and cases cited; Towle r. Pierce, 12 Metcalf, 329; Story Eq. PI. § 78 ; Vose v. I'liilbrook, 3 Story C. C. 335. * llogers V. Linton, Bunb. 200. » 3 Kuss. 583. OF NECESSARY PARTIES TO A SUIT. 213 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 cestuis que trust parties to the proceeding.! Thus, where a bill is filed by trustees for sale, against a purchaser, for a specific performance of the contract, the cestuis que tru&t 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 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 demurrer 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 ^ Kirk V. Clark, Free. Cha. 275. A mere nominal trustee cannot bring a suit, in his own name, without joining his cestui que trvst with him. Stilwell v. M'Neely, 1 Green Ch. 205; Schenck v. Eilingwood, 3 Edw. 175; Helm v. Hardin, 2 B. Monroe, 232 ; Malin v. Malin, 2 John. Ch. 238 ; Fish v. Rowland, .1 Faige, 20 ; Bifield V. Taylor, 1 Beatty, 93; Story Eq. Fl. § 207, 209 ; Busney v. Speaf, 17 Georgia, 223; Hall v. Harris, 11 Texas, 300; AVoodward v. Wood, 19 Alabama, 213; Richards v. Richards, 9 Gray. 313. Rule 4, adopted in 15 & 16 Vict. c. 86, provides that " any one of several cestuis que trust under any deed or instru- ment may, without serving any other of such cestuis que trust, have a decree for the execution of the trusts of the deed or instrument." See M'Leod v. Annes- ley, 16 Beav. 607 ; Jones v. James, 9 Hare, Appendix, 80. And Rule 9 provides that " in all suits concerning real or personal estate which is vested in trustees under a will, settlement or otherwise, such trustees shall represent the persons beneficially interested under the trusts in the same manner and to the same ex- tent as the executors or administrators in suits concerning personal estate repre- sent the persons beneficially interested 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 mat- ter on the hearing, if it shall so think fit, order such persons or any of them to be made parties." See Stanfield v. Hobson, IG Beavan, 189; Sale v. Kitson, 3 De Gex, Mac. & J. 119. The cestuis que trust are not necessary parties to a suit in which a mortgage for their benefit is brought in question, — their trustees are the proper parties to represent them. New Jersey &c. Co. v. Ames, 1 Beasley (X. J.), 607; Ashton v. Atlantic Bank, 3 Allen, 219, 220; Shaw v. Norfolk County R. R. Co. 5 Gray, 170, 171 ; Wright v. Bundy, 4 Ind. 398. « Per Sir J. Leach, V. C, Calverly v. Fhelp. Mad. & Geld. 232. 214 OF PARTIES TO A SUIT. cestui que trust a party ; and that, although the members of the society were so numerous that it was 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 plaintiffs 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 off 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 are allowed to maintain a suit, without their cestuis que trust, as in the case before mentioned, of trustees under a deed, by which estates are vested in them upon trusts to sell and to ap- ply the produce amongst creditors or others, with a clause, declar- ing the receipt of the trustees to be a good discharge to the pur- ^ Douglas V. Ilorsfall, 2 S. & S. 184. See Rule 5, in note, ante, 211. ^ See Roath v. Smith, 5 Conn. 133; Graham v. Carter, 2 Hen. & Munf. 6; Story Eq. PI. § 200. » Freake v. Hearsay, Nels. 93; 2 Freom. 180, S. C. ; 1 Ch. Ca. 51, S. C. ; 2 Eq. Ca. Ab. 77, S. C. ; Dexter v. Arnold, 1 Sumner, 113. * Gobe V. Carlisle, cited 2 Vern. 66. * Clerkson v. Bowyer, 2 Vern. 66. * Story Eq. PI. § 200. Davis v. Hemingway, 29 Vermont, 438. The heirs of a deceased mortgagee cannot, however, sustain a bill for foreclosure, but it must be brought in the name of the executor or administrator. Roath v. Smith, 5 Conn. 133. ' Renvoize v. Cooper, Mad. & Geld. 371. OF NECESSARY PARTIES TO A SUIT. 215 chasers.^ And now by the 30th Order of August, 1841, in all suits concerning real estate which is vested in trustees by devise, and such trustees are competent to sell and give discharges for the proceeds of the sale, and for the rents and profits of tlie estate, such trustees shall represent the persons beneficially interested in the estate, or the proceeds, or the routs and profits, in the same manner, and to the same extent as the executors or administrators in suits concerning personal estate, represent the persons benefi- cially interested in such personal estate ; and in such cases it shall not be necessary to make the persons benedcially 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 applies, not only to suits by persons claiming adversely against the estate, but also to suits by some of the persons beneficially interested, 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, how- ever, that the trustees who are empowered to give discharges, should themselves be entitled to the legal estate, otherwise the or- der does not apply, and the cestuis que trust must be made parties to the suit.* In case, also, where the interest of the cestuis que ^ See Calverly v. Phelp, Mad. & Geld. 22!) ; as to foreclosure in such eases, vide post, S. C. Where it appears on the ftice of the contract that it was the in- tent of the parties to exclude the cestui que trust from the necessity of tiiking any part in the transaction relating to the management of the trust, the cestui que trust is not a necessary party. Bifield v. Taylor, 1 Beat. 91 ; S. C. 1 Moll. 192. So where a bill is brought by the trustee to obtain possession of the trust proper- ty, and the cestui que trust has no interest in the possession. Furguson v. Applen- hite, 10 Smedes & M. 301 ; Ashton v. Atlantic Bank, 3 Allen, 219, 220. A trus- tee may maintain a bill to redeem a mortgage, made by himself, of the trust estate, without making his cestui que trust a party. Boyden v. Partridge, 2 Gray, 190. Where a mortgage deed of land has been executed to a trustee, to secure the payment of debts to sundry persons, the trustee may maintain a bill to foreclose, without making the cestuis que trust parties. Swift v. Stebbins, 4 Stew. & Port. 46 7 ; Shaw v. Norfolk County R. R. Co. 5 Gray, 170, 171. A conveyance in trust may be cancelled by a decree in Equity though the cestuis que trust be not made parties. Campbell v. Watson, 8 Ohio, 500. ' Tliis rule has been adopted by the Supreme Court of the United States. Equity Rule, 49. * Osborne v. Foreman, 2 Hare, 656. * Turner v. Hind, 12 Simons, 414. It seems doubtful whether the order ap- plies to the case of a bill of forclosure of freeholds devised in trust for sale. Wil- son V. Jones, 2 y. & C. 244. 216 OF PARTIES TO A SUIT. trust is collateral to the rights between the plaintiff and the de- fendant, a person standing in the place of trustee has been allowed to maintain a suit respecting the trust property, without making the persons tor whom he is trustee, parties ; thus the pawnee of a chattel or his representative may maintain a suit for the chattel without making the pawner a party .^ And so in the case of Sa- ville V. Tancrcd,^ where a bill was brought for an account, and for the delivery of a strong-box, in which were found jewels, and a note in these words : " Jewels belonging to the Duke of Devon- shire," in the hands of Mr. Saville, whose representative the plain- tiff was, and in whose possession they had been for fifty years, and an objection was taken tliat the Duke's representative ought to have been a party, it was held that the plaintiff might sustain the suit without him.^ And upon the same principle, where one of two trustees had been prevailed 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 ; upon a bill filed by the trustee against his co-trustee to compel him to replace the stock, a demurrer was put in, on the ground that the cestuis que trust of the fund were not made parties, which, upon argument, was overruled.* And here it may be observed, that the personal representative in all cases represents 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, where a woman by her will gave all her ' A bill in Equity, brought by a pledgee against a stranger to recover posses- sion of the property pledged, which avers that the plaintiff's claim is sufficient to cover the property, and to which the pledgor is made a defendant, is not opea to demurrer on the ground that he should have been joined as a plaintiff. Michi- gan State Bank v. (Gardner, 3 Gray, 305. 2 1 Vesey, 101 ; 3 Swanst. 141, S. C. » Story Eq. PI. § 221. * Franco v. Franco, 3 Ves. 77 ; Bridget v. Hamer, 3 Y. & C. 72 ; May v. Selby, 1 Y. & C. 235 ; Story Eq. PI. § 213, and a discussion of this subject in the note ; Cunningham v. Pell, 5 Paige, 607. If a trustee has fraudulently or improperly parted with trust property, the cestui que trust may proceed against the trustee alone, to compel satisfaction for the breach of trust, or he may at his election join the assignee also, if he were a party to the fraud, or if he seeks redress against him. Bailey v. Ingles, 2 Paige, 278 ; West v. Randall, 2 Mason, 197 ; Franco v. Franco, 3 Sumner's Vesey, 75, note (a). ' Sec Miles v. Davis, 19 Mis. (Bennett), 408. OF NECESSARY PARTIES TO A SUIT. 217 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 person in whose hands the property of the mother was, praying for an account, the defendant demurred, because tlie representative of the bastard and the Attorney-General were not parties ; and the demurrer was overruled, 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 cestuis que trust 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 will not, as of course, order payment to a per- sonal representative of funds recovered in the cause, but may direct them to be paid into Court.^ So, also, assignees of bankrupts 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, 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 Commis- sion, proceed at Law against the bankrupt, the bankrupt may file a bill of discovery in aid of his defence at Law, and for an injunc- tion ; and where there are complicated accounts, he may pray to have them taken, and to have tlie balance due to him from the de- fendants set off against the demand of the creditors, without mak- ing his assignees parties,'' but he cannot pray to have the balance paid to him, because that belongs to his assignees. 1 Jones V. Goodchild, 3 P. Wms. 33. » lb. 48. « Loy V. Duckett, 1 Cr. & Ph. 305 ; Ex parte Ram, 3 My. & Cr. 25. * Spragg V. Binkes, 5 Ves. 587. ^ 3 P. Wms. 311, in nods. • Sharpe v. Gamon, 2 Vern. 32 ; 1 Eq. Ca. Ab. 72 ; PI. 7, S. C. ' Lowndes v. Taylor, 1 Mad. 423. VOL. 1. 19 218 OF PARTIES TO A SUIT. TliG 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 which case, as we have seen, it is generally necessary that all the residu- ary legatees sliould be before the Court, although where the num- ber of the class is great, the Court will sometimes dispense with the necessity of making them all parties, and allow 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 exec- utors before the Court, for except in cases coming within the SOtli Order of August, 1841, above mentioned, 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 whom they are trustees.^ But although in ordinary cases the executor represents the whole personal estate, and no legatee need be a party, because the per- sonal estate may be exhausted by the debts, and the interest of the legatee is therefore uncertain, the appointees under the will of a feme covert are in a different situation, their interest cannot be defeated by debts, and thejf are in the common situation of cestuis ^ Harvey v. Harvey, 4 Beav. 215. See Gould v. Hayes, 19 Alabama, 438. All the distributees are necessary parties to a bill for distribution. Hawkins V. Craig, 1 B. Monroe, 27; Osborne v. Taylor, 12 Grattan (Va.), 117. But see Moore v. Gleaton, 23 Georgia, 142; Keeler v. Keeler, 3 Stockt. (N. J.) 458. 2 Morse v. Sadler, 1 Cox, 352 ; Hallett v. Hallett, 2 Paige, 15 ; Todd v. Ster- rett, 6 J. J. Marsh. 4 32 ; Howland v. Fish; 1 Paige, 20, In this last case the Court remark: " In Morse v. Sadler, 1 Cox, 352, the Master of the Pvolls decided, that every legatee, whose legacy was charged on the real estate, must be a party to the bill. It is true that case was overruled by Chancellor Kent, in Brown v. Pticketts, 3 John. 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 under the decree. But even then, Chancellor Kent considers it necessary, that the bill should state the fact that it is filed in behalf of the plaintiff and all others, &c. The reason of the rule seems to be, that the defendants may not be charged with a double defence." Rule 2, adopted in 15 & IG Vict. c. 86, provides that "any legatee in- terested in a legacy charged upon real estate, and any person interested in the proceeds of real estate directed to be sold, may, without serving any other legatee or person interested in the proceeds of the estate, have a decree for the adminis- tration of the estate of a deceased person." * Lord Red. 174 ; see, however, Harrison v. Stewardson, 2 Hare, 530. OF NECESSARY PARTIES TO A SUIT. 219 que trust, and must be made parties ; ^ therefore, where the admin- istrator with the will annexed of a married woman, filed a bill, praying that the defendants might pay over to him a sum of money, as to which a testamentary appointment had been executed by the testatrix, by virtue of a power in her marriage settlement, without making the appointees parties, the Court ordered the case to stand over, with leave for the plaintiff to amend by bringing the appointees before the Court.^ Where, however, the api)ointees 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 parties.-^ It is to be observed, that in Craker 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 was held that all the other children who were appointees need not be parties, because they might go in before the Master. But although an executor or administrator, as representing the personal estate and all those interested in it, may sue for the recov- ery of any part of that estate without making the persons benefi- cially interested parties to the proceeding, yet where there are more than one executor or administrator, one cannot maintain a suit alone without the others ; ^ and where to a bill filed by one executor, a demurrer was put in on the ground that a co-executor, who was an infant, was no party, the bill was ordered to be amend- ed.^ Where, however, one executor of several has alone proved, he may sue without making the other executors parties, although they have not renounced.'' In this respect, the rule of Courts of ^ Storj^ Eq. PI. § 204, and note. * Court V. Jeiferj', 1 S. & S. 105 ; but see Owens v. Dickenson, ante, p. 168. ^ Manning v. Thesiger, 1 S. & S. 106 ; Story Eq. PI. § 217. * 2 Cha. Ca. 228. . * Offley V. Jenney, 3 Cha. Rep. 92 ; Cramer v. Morton, 2 Moll. 108. Rule 6, adopted in 15 & 16 Vict. c. 86, provides that "any executor, administrator, or trustee, may obtain a decree against any legatee, next of kin, or cestui que trust, for the administration of the estate, or the execution of the trusts." « Offley V. Jenney, 3 Cha. Rep. 92. ' Davies v. Williams, 1 Sim. 5. But where a person devises that his executors should sell his land, and leaves two executors, one whereof dies, and the other re- nounces, and administration is granted to A., who brings a bill against the heir to compel a sale, it seems doubtful whether the renouncing executor, in whom the power of sale collateral to the executorship was vested, ought not to be made a party. Yates t'. Compton, 2 P. W. 308 ; Cramer v. Morton, 2 Moll. 108 ; Thomp- 220 OF PARTIES TO A SUIT. Equity is different from that of Courts of Law, as there, if there be several executors or administrators, they must all join in bringing actions though some have not proved the will, or have refused before the ordinary .^ In another respect, also, the rules adopted by Courts of Equity differ from those of Courts of Law in mat- ters of this description, because at Law, all persons having a joint interest, must join in an action as plaintiffs ; but in Equity it is sufficient that all parties interested in the subject of the suit should be before the Court either as plaintiffs or defendants ; therefore, one of two or more assignees of a bankrupt may sue in Equity without his co-assignees, provided they are made defendants,^ and so one executor may sue without his co-executor joining, if the co-executor be made a defendant.^ It appears, that in a case of this description, Lord Thurlow at first doubted whether the co- executor was entitled to his costs, but that he at length ordered them to be paid.^ It may be collected from several of the preceding cases, that although it is necessary to have before the Court all persons claim- ing concurrent interests with the plaintiff, yet it is not requisite, in order to make a person a necessary party, that such interest should be immediate, it will equally apply, whether the interest be in pos- session, remainder, or reversion ; and upon this principle it is held, that in all cases in which an estate is claimed, against another, 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 settlement parties to the suit, doivn to the person entitled to the first vested estate of inheritance^ either in fee or in tail., inclusive. Upon this principle, where a bill was filed for the execution of a trust for settling an estate on several branches of a family, it was held necessary to make the first person entitled to the inheritance, a party .^ And where A. was tenant for years, with remainder to son V. Graham, 1 Paige, 384. See contra Judson v. Gibbons, 5 Wendell, 224. But an executor, though he has not proved the will, is a necessary party defend- ant to a suit to carry the trusts of the will into execution. Ferguson v. Fergu- son, 1 Hayes & J. 300. ^ Kilby V. Stanton, 2 Young & Jerv. 77 ; and vide Williams on Executors and Administrators, 1147, and the cases there cited. ■ Wilkins v. Fry, 1 Mer. 244. =■ See Dane v. Allen, 1 Green Ch. 288. * Blount V. Burrow, 3 Bro. C. C. 90. * Finch V. Finch, 2 Ves. 492 ; Sohier v. Williams, 1 Curtis C. C. 479 ; Story E(i. Fl. § 144, note. OF NECESSARY PARTIES TO A SUIT. 221 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 reversioner in fee, ought to be before the Court.^ It is not, however, necessary in such cases, to bring before the Court any person entitled in remainder or reversion after the first vested estate of inheritance, because such person is considered sufficient to support all those who are in remainder behind him ; and where an exception was taken to a bill, for want of proper par- ties, because a remainder-man expectant upon an estate tail was not a party ; the exception was overruled, because such a remain- der-man is not regarded in Equity.^ It is to be observed, that although in cases of this description, the first person in existence who is entitled to a vested estate of in- heritance, is sufficient to represent all remainders behind him, yet it is necessary, that all persons 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 re- mainders over, and a bill was brought by the husband, in order to have the opinion of the Court whether a certain parcel of land was not intended to be included in the settlement, and the wife was not a party, the case was ordered to stand over, in order 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 by a son, who was 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 defendant, who was interested in a trust term for years, prior to the limitation to the plaintiff, was not before the Court, Lord Hardwicke held the objection good.* Another objection in the same case was, because certain annui- * By Lord King, in MoUineux v. Powell, cited 3 P. Wms. 268, n. Sed vide 1 Dick. 197, 198, and Eden on Injunctions, 163 ] Story Eq. PI. § 159. « Anon. 2 Eq. Ca. Ab. 166 ; Eagle Fire Ins. Co. v. Cammet, 2 Edw. 127. « Herring v. Yeo, 1 Atk. 290. * Pynceut v. Pyncent, 3 Atk. 571. 19* 222 OF PARTIES TO A SUIT. taiits of the son, upon his reversion after the death of his father, were not parties, and Lord Hardwicke held, that he coukl not make the order prayed until the annuitants were first heard, and that consequently the objection must be allowed.^ From this it would seem, that although a remainder-man in tail may maintain a suit without bringing the persons entitled to subsequent remainders before the Court, yet if he has charged or incumbered his estate in remainder, the persons interested in such charge or incumbrance must be parties ; and it is held, that a person claiming under a limitation by way of executory devise, not subject to any preceding estate of inheritance by which it may be defeated, must be a party to a suit in which his rights are involved ; ^ but executory devises to persons not in 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 not ascertained, it is sufficient to have before the Court the trustees to support the contingent remainder, together with the first person in esse entitled to the first vested estate of inheritance.^ Lord Hardwicke, in Hopkins v. Hopkins,* states the practice upon this point thus : — "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 will be bound by the decree, though not in 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 was settled upon Baron Clinton for life, and, after remainders to his children (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 remain- der to the existing Lord Clinton in fee, it was objected that the person presumptively 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 1 Pyncent v. Pyncent, 3 Atk. 571. " Lord Red. 173. ^ Lord Cholmondeley v. Lord Clinton, 2 J. & W. 1. See Sohier v. Williams, 1 Curtis C. C. 4 79 ; Nodine v. Greenfield, 7 Paige, 544. * 1 Atk. 590. * Ubi supra. OF NECESSARY PARTIES TO A SUIT. 223 of inheritance before the Court, should be born pending the suit, that person must be brought before the Court by supp/et/icnlat bill; ^ and if the first tenant in tail, who is plaintiff in a suit, dies without issue before the termination of the suit, the next remain- der-man in tail, although he claims by new limitation, and not through the first plaintiff as his issue, is entitled to continue the suit of the former tenant in tail by supplemental bill, and to have the benefit of the evidence and proceedings in the former suit.^ In all the preceding cases the rights of the several parties to the subject-matter in litigation were consistent with each other, and were the result of the same state of facts, so that the same evidence which would establish those facts would establish the rights of all the parties to maintain the litigation ; the rules, therefore, of Equity, require that all those parties so deriving their right of liti- gation from the same facts, should 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 claiming 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 claiming the same thing cannot be sup- ported, then such other parties need not be brought before the Court. And the reason of this is obvious, for if a plaintiff resting his case upon a particular title, which is inconsistent with the title set up by the other claimants, is able to establish the truth of his case by evidence, he will be entitled to a decree against the defend- ant whom he sues ; if he is not in a situation to establish his case, his bill must of course be dismissed, and the circumstance of his having brought other parties claiming under a different title before the Court, would be of no advantage to the defendant principally sued, because, if the plaintiff fails in his claim, the bill must be dismissed as against them as well as against the principal defend- ant, and such dismissal can be no bar to prevent the other parties themselves, from asserting their claim against the defendant.^ * Lord Red. 1 73. « Lloyd v. Johnes, 9 Ves. 58. ' Williamson v. Lonsdale, Daniell's Exch. Rep. 171 ; 9 Price, 187, S. C. vide etiam Williams v. Price, Dan. 13 ; 4 Price, 156 ; Carte v. Ball, 3 Atk. 500 ; and Patch V. Dalton, Scacc. Jan. 1819, cited 1 Jac. & W. 515 ; Bailey v. Worrall, Buni). 115; Dawes v. Benn, 1 Jac. 95; Cook v. Blunt, 2 Sim. 417; Wing u. Morrell, M'Cleland & Y. 625 ; Pierson v. David, 1 Clarke (Iowa), 23. 224 OF PARTIES TO A SUIT. With respect to suits for specific performance, it is a general rule, that none but parties to the contract arc necessary parties to the suit ; ^ and where there are other persons so interested in the subject-matter of the contract, as that their concurrence is neces- sary 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. If such persons should be infants, and it were attempted, by making them co-plaintiifs with the vendor, to bind their rights by a decree, the fact of their being so made parties, would be a fatal objection to the suit ; and whether the point was or was not raised by the other parties, the Court would refuse to pronounce a decree ; ^ and as such persons cannot sue as plaintiffs in suits for specific performance by vendors, so in suits by purchasers, they cannot be made defendants.^ It would appear, however, in some cases, where subsequently to the contract another person has acquired an interest under the vendor, and with notice of the rights of the purchaser, that in a suit for specific performance by the purchaser, he has been allowed to join such person with the vendor as a defendant to the suit.* Formerly it was the invariable practice of Courts of Equity to require the heir at law to be a party to a suit in all cases where the trusts of a will of real estate were sought to be executed. This practice arose from the peculiar principle adopted by Courts of Equity in cases of wills relating to real estate, namely, that they would not carry 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 par- ties to the suit. Tiiis exception has now been in a great measure abolished, for by the 31st Order of August, 1841,^ it is provided, ^ Roberts v. The Great Western Railway Company, 10 S. 314; Humphrey v. HoUis, Jac. 73 ; Paterson v. Long, 5 Beav. 186. See Morgan v. Morgan, 2 Wheat. 290 ; Lord v. Underdunck, 1 Sandf. Ch. 46 ; Hoover c. Donally, 3 Hen. &M. 316. « Wood V. White, 4 M. & C. 483. See Williams v. Leech, 28 Penn. (State) 89. ' Tasker v. Small, 3 M. & C. 63. * Spence v. Hogg; Collott v. Hover, 1 Coll. 225 ; but see Cutts v. Thodey, 13 S. 206, and 1 Coll. 225. ' This Order has been adopted in the Equity Rules of the United States Su- preme Court. Rule 40. OF NECESSARY PARTIES TO A SUIT. 225 " that in suits to execute the trusts of a will, it shall not be neces- sary to make the heir at law a party ; but the plaintiff shall be at liberty to make him a party when he desires to have the will es- tablished against him." Before this Order, it was necessary in suits for the administration of real assets under 3 & 4 Will. IV. 0. 104, that the heir at law, 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 was a neces- sary party .^ Although, however, the heir at law was a necessary party to suits instituted for the purpose of making devised estates appli- cable to the payment of debts, he was not a necessary party to suits instituted by creditors claiming under a deed whereby estates had been conveyed to trustees to sell for payment of debts, un- less 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 demise, 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 default at the hearing, the trusts of a will have been executed in his absence, but without a declaration that the will was well proved ; ^ 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 * Brown v. Weatherby, 10 Sim. 125. * 3 & 4 W. & M. c. 14. ' Story Eq. PI. § 163. Where the real estate of the deceased party is by stat- ute made personal assets for the payment of debts, it is unnecessary to make the heir or devisee of the estate a party to the suit for the administration of the assets. Story Eq. PI. § 163, and note ; Ex parte RuUuff, 1 Mass. 240 ; Grignon V. Astor, 2 How. U. S. 319, 338. * To a bill to charge a legacy on land of a married woman, she Is a necessary party. Lewis v. Darling, 16 Peters, 1. « Harris v. Ingledew, 3 P. Wms. 92, 94. « French v. Baron, 1 Dick. 138 ; 2 Atk. 120, S. C. ; Stokes v. Taylor, 1 Dick. 349 ; Cator v. Butler, 2 Dick. 438 ; Braithwaite v. Robinson, ib. n. ; Story Eq. PI. § 87. On a bill by an executor against a devisee of land charged with the payment of debts, for an account of the trust fund, the creditors are not indispen- sable parties to the suit. Potter v. Gardner, 12 Wheat. 498. 226 OF PARTIES TO A SUIT. in the absence of the heir.* There has been no decision upon the point under the last-mentioned Order, but it seems reasonable to suppose that the Court will not order a devised estate to be sold, or carry into execution any trusts concerning real estate devised in the absence of the heir at law, without proof of the execution of the will and of the sanity of the testator ; although, 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, admission against him or any one claiming under him, the Court still continues unable, by decree in his ab- sence, to insure the title against his rights ; '^ the Order, however, provides, that in cases in which the plaintiff desires to have the will established against the heir, he shall be at liberty to make him a party for that purpose, — a liberty which, it is apprehended, the plaintiff must exercise in all cases in which any title is to be established under the devise. As the Order provides for the execu- tion 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 have the will established against him, it seems scarcely probable that under any circumstances, the old practice, of declaring a will well proved in the absence of the heir will be continued.^ It was 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 de- 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 subject to impeachment. If any person should claim the escheat against the Crown, that person may be a necessary party.* The rule which has been before noticed, that persons claiming under titles which are inconsistent with that of the plaintiff, should not be made parties to a suit, even though they are in a situation to molest the defendant in the event of the plaintiff being unsuc- cessful in establishing his claim, is equally applicable to prohibit > Banister v. Way, 2 Dick. 599 ; vide ace. Williams v. Whingates, 2 Bro. C. C. 399. * Lord Red. 172. ' All the devisees are held to be necessary parties to a bill to set aside a will ; the executor, unless he has refused to act, should also be made a party. Van- cleave V. Beam, 2 Dana, 155. See Hunt v. Acre, 28 Alabama, 580 ; Vanderpoel V. Van Valkenburgh, 2 Selden (N. Y.), 190. So all the legatees are indispensa- ble parties in such a case. McMaken v. McMaken, 18 Alabama, 576. * Lord Red. 172. OF NECESSARY PARTIES TO A SUIT. 227 their being made parties as co-plaintiffs or as defendants. Thus, in the case of the Attorney-General v. Tarrington,^ wliere an in- formation and bill was 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 wliich 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 Lord Cholmondcly 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, 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. R., strongly expressed his opinion that the 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 tlie same way as in the first, and Lord Eldon, though he allowed the demurrer which was put into the bill upon other grounds, expressed a very strong opinion, that two persons claim- ing the same thing by different titles, but averring that it is in one or the 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, A. and B., and each asserting the title to be in him, is tliis, that if the Court decides that A. is entitled, and the defendants do not complain, how is B. as a co-plaintiff to appeal from that decree ? " And in the recent case of Saumerez v. Saumerez,* where the in- terests of a father and his children who were joined as co-plaintiffs in the suit were at variance with one another ; Lord Cottenham said, that as the record was framed, it would be quite irregular to make any adjudication concerning their conflicting interests, aind directed a new bill to be filed. In a case before the same judge, when Master of the Rolls, where a bill had been filed by the settlor in a voluntary settlement, for the purpose of avoiding the settlement, in which another per- ^ Hardres, 219. * 2 Jac. & AV. 135. * A bill cannot be filed against the heirs and devisees jointly, for satisfaction of a debt of the deceased, Schermerhorn v. Barhydt, 9 Paige, 28. * 4 M. & C. 336. 228 OF PARTIES TO A SUIT. son claiming as a purchaser, under the 27 Eliz. c. 4, against the parties entitled under the voluntary settlement, was joined as a co-plaintiff; 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 fro^n whom he purchased, but that if he had shown a good title in himself he could have had no relief in that suit, having associated himself as co-plaintiff with the set- tlor ; it having been in several late cases decided, that under such circumstances, no decree can be made, although the plaintiff might, in a suit in which he was sole plaintiff, have been entitled to re- lief.i Tiie 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 would exist of continued 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 plaintiffs, by allow- ing one or more of such individuals to file a bill on behalf of them- ' Bill r. Cuerton, 2 M. & K. 503. * See Cheshire Iron Works v. Gay, 3 Gray, 531, 534, 535 ; Conro v. Port Henry Iron Co. 12 Barbour Ch. 27 ; Merchants' Bank v. Stevenson, 5 Allen, 402, 403. ' See Crosby v. Wickliffe, 7 B. Monroe, 120 ; Cheshire Iron Works v. Gay, 3 Gray, 534, 535. * Anon. 3 Atk. 572; Peacock v. Monk, 1 Ves. 127. A creditor's bill, under Mass. Genl. Sts. c. 113, § 2, to reach and apply, in payment of a debt, any prop- erty of a debtor in that State, that cannot be come at to be attached or taken oil execution in a suit at law against such debtor, may be brought by one creditor for himself alone. Silloway v. Columljian Ins. Co. 8 Gray, 199. OF NECESSARY PARTIES TO A SUIT. 229 selves and the other creditors upon the same estate, for an account and apphcation of the estate of a deceased debtor, in which case the decree being made applicable to all the creditors, 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 consid- ered 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, which might be highly inconvenient in the ad- ministration of assets, as well as burdensome 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 may not have used equal diligence.^ The same principle applies where the demand is against the real as well as the personal assets,^ because, strictly speaking, where an estate is liable to several incumbrances, or specialty debts, one in- cumbrancer, or specialty creditor, cannot sue without bringing the others before the Court, which, when the creditors are numerous, might be attended with great inconvenience and expense ; * and it ^ Lord Red. 166. See 48th of the Equity Rules of the United States Courts. ' Ibid. See Attorney-General v. Cornthwaite, 2 Cox, 45 ; where it was ad- mitted at the bar that where a single creditor files a bill for the payment of his own debt only, the Court does not direct a general account of the testator's debts, but only an account of the personal estate and of that particular debt, which is ordered to be paid in a course of administration ; and all debts of a higher or equal nature may be paid by the executor, and allowed him in his discharge. See Gray v. Chiswell, 9 Ves. 123 ; Story Eq. PI. § 99-102 ; 1 Story Eq. Jur. § 546-550; Brooks v. Reynolds, 1 Bro. C. C. (Perkins's ed.) 183, note (2), 180, note (5), and cases cited; Paxton v. Douglas, 8 Sumner's Vesey, 520; Thomp- son V. Brown, 4 John. Ch. 619; Shephard v. Guernsey, 9 Paige, 337; Ramon Assets, ch. 21, § 1, p. 292 ; Rush v. Higgs, 4 Sumner's Vesey, 638, note (a), and cases cited ; Hallett v. Hallett, 2 Paige, 15 ; Lloyd v. Loaring, 6 Sumner's Vesey, 773, note (a); West v. Randall, 2 Mason, 181; Lucas v. Bank of Darien, 2 Stewart, 280; New London Bank v. Lee, 11 Conn. 112; Ballentine v. Beall, 3 Scam. 206; Coe r. Beckwith, 31 Barbour (N. Y.), 339; Hazen v. Durling, 1 Green Ch. 133. ' Leigh V. Thomas, 2 Ves. 313. * See Story Eq. PI. § 161, note. Although in this case one incumbrancer cannot sue without making the rest parties, yet it has been held that this is cured by a decree directing an account to be taken of all the mortgages and incumbrances affecting the estate. Vide Vin. Ab. tit. Party (B.) ca. 51. And VOL. 1. 20 230 OF PARTIES TO A SUIT. has been extended to tlie case of creditors under a trust deed for payment of debts, a few of whom 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.^ Upon the same principle, where the trust fund was to be distrib- uted amongst the joint and separate creditors of the firm, a bill of this description was permitted by one creditor only, on behalf of in Martin v. Martin, Lord Hardwicke said, that on a bill for a sale for the satis- faction of a bond creditor, not only where it was on behalf 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 account of all the bond debts of the testator or intestate, with liberty to come for a satisfaction. See Seton on Decrees, 85. It seems, however, upon more recent authorities, that a single bond creditor cannot have any decree at all against the real estate. See Bed- ford V. Leigh, 2 Dick. 707 ; Johnson v. Compton, 4 Sim. 47. Where a bill has been filed by a single bond creditor to establish his claim against the real estate of his deceased debtor, the Court has permitted it to be amended by making it a bill " on behalf of himself and of the other specialty creditors.'* Johnson V. Crompton, ubi supra. ^ Corry v. Trist, Lord Red. 167 ; see, however, Harrison v. Stewardson, 2 Hare, 530, where Sir J. Wigram, V, C, decided, that twenty creditors interested in a real estate, were not so large a number, as that the Court would, on the ground of inconvenience alone, allow a few of them to represent the others, and dispense with such others as parties in a suit to recover the estate against the whole body of creditors. See Story Eq. PI. § 150, 207; Johnson v. Candage, 31 Maine, 28; Bryant v. Russell, 23 Pick. 508; Stevenson v. Austin, 3 Metcalf, 474. In case of an assignment for the benefit of creditors, all the creditors should be joined in a bill to compel a distribution of the fund ; but one creditor alone may maintain a bill for a violation of the trust injurious to himself separately. Dim- mock V. Bixby, 20 Pick. 368. When creditors claim under a deed of trust for the payment of debts, they need not make as parties to their bill, those who are in a posterior class to themselves, but they must make, as parties, all who are in their own class. Patton v. Bencini, 6 Iredell Eq. 204. No decree for the distri- bution of a fund in Court can be made, until all persons interested are made parties. De La Vergne v. Evertson, 1 Paige, 181 ; Greene v. Sisson, 2 Curtis C. C. 171. All the distributees are necessary parties to a bill for distribution. Hawkins v. Craig, 1 B. Monroe, 27. All persons Interested in the trust estate ought to be joined in a suit for its administration. Elam v. Garrard, 25 Georgia, S.'i? ; High V. Worley, 32 Ala. 709 ; D'Wolf v. D'Wolf, 4 Rhode Isl. 450 ; Gould V. Hayes, 19 Alabama, 438 ; Keelcr v. Keeler, 3 Stockt. (N. J.) 458. Creditors of a testator may intervene by petition, and be made parties to a suit by the legatees and devisees, brought for the purpose of falsifying the ac- counts of the executor. Smith v. Britton, 2 P. & H. (Va.) 124. OF NECESSARY PARTIES TO A SUIT. 231 himself and the other joint and separate creditors, although it was objected, that one at least of each class ought to have been brought before the Court.^ It is to be observed, that 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 would 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 personalty may be left clear for those whose de- mands are only payable 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 creditor and of a creditor by simple contract, on behalf of themselves and of all others the specialty and simple- contract creditors.^ ' Weld V. Bonham, 2 S. & S. 91. '^ Now by 15 & 16 Vict. c. 86, § 44, "It shall be lawful for any person claim- ing as creditor, or a specific pecuniary or residuary legatee, or the next of kin, or some or one of the next of kin, of a deceased person, to apply for and obtain, as of course, without bill or claim filed, or any other preliminiary proceedings, a summons from the Master of the Rolls or any of the Vice-Chancellors requiring the executor or administrator, as the case may be, of such deceased person, to attend before him at Chambers, for the purpose of showing cause why an order for the administration of the personal estate of the deceased should not be granted ; see Ashley v. Sewell, 6 De Gex, Mac. & J. 933 ; and upon proof of due service of the summons, &c., it shall be lawful for such Judge, in his discre- tion, to make the usual order for the administration of the estate of the deceased, with such variations, if any, as the circumstances of the case may require ; and the order so made shall have the force and effect of a decree to the like effect made on the hearing of a cause or claim between the same parties. And by the 47th section of the same chapter, " It shall be lawful for any person claiming to be a creditor of any deceased person, or interested under his will, to apply for and obtain in a summary way, in the manner above provided with respect to the personal estate of a deceased person, an order for the administration of the real estate of a deceased person, where the whole of such real estate is by devise vested in trustees, who are by the will empowered to sell such real estate, and authorized to give receipts for the rents and profits thereof, and for the produce of the sale of such real estate. 232 OF PARTIES TO A SUIT. 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 tho same fund.^ For the same reason, where it has been sought to apply personal estate amongst next of kin, or amongst persons 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 others equally interested.^ But the right of a few to represent the whole is by no means confined to the instances of creditors and legatees;^ and the ne- cessity of the case has induced the Court, especially of late years, frequently to depart from the general rule, in cases where a strict adlierence 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 interests ; * thus part 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 co-partners, without 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 so where all the inhabitants of a parish had rights of common under a trust, a suit by one on behalf of himself and the other inhabitants was admit- ted ; ^ and one owner of lands in a township has been permitted » Lord Red. 166 ; Story Eq. PI. § 104; Brown v. RIcketts, 3 John. Ch. 553 ; Fish V. Rowland, 1 Paige, 20, 23 ; Kettle v. Crary, 1 Paige, 417, note; Hallett v. Hallett, 2 Paige, 20, 21. » Ibid. 138; Story Eq. PI. § 105. * See 6 Ves. 779. * Lord Red. 169; Story Eq. PI. § 94 et seq., and the cases cited in notes; West?;. Randall, 2 ]\Iason, 192- 196; Wendell v. Van Rensselaer, 1 John. Ch. 349; Hallett v. Hallett, 2 Paige, 18-20; Cullen v. Duke of Queensberry, 1 Bro. C. C. (Perkins's ed.) 101, and j\Ir. Belt's notes; Moffat v. Farquharson, 2 ib. 338, note (1) ; Lloyd v. Loaring, 6 Sumner's Vesey, 773, note (a), and cases cited ; Willis v. Henderson, 4 Scam. 20 ; Mann v. Butler, 2 Barbour Ch. 362 ; 48th of the Equity Rules of the United States Courts. ' Chancey v. May, Prec. Ch. 592. * Blaekham v. The Warden and Society of Sutton Coldfield, 1 Ch. Ca. 269. OF NECESSARY PARTIES TO A SUIT. 233 to sue on behalf of himself and the others to establish a contribu- tory 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 mariners and persons who had signed certain articles of agreement with the owners, for an account and distri- bution of the prizes made by the ship.^ And in Lloyd v. Loaring,"^ Lord Eldon held, that some of the members of a lodge of Free- masons, or of one of the inns of court, or 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. And in Cockburn v. Thompson,* which was the case of a bill filed by several persons on behalf of themselves and of all other proprietors of the Philanthropic Annuity Listitution, &c., pray- ing that the institution might be dissolved, and an account taken against the defendant. Lord Eldon overruled a plea, which ob- jected that a great number of persons, whose names were stated, were proprietors of the institution, and ought to be parties to the suit. The practice adopted by the Court of permitting one or more persons to represent in a suit all who have similar interests, has been frequently recognized and acted upon in a variety of in- stances ; but it is not to be considered as a general principle, that this course may be acted upon in all cases within the inconven- ience which the adoption of this practice has been intended to avoid.^ Where a bill was filed by five persons, on behalf of them- It has been doubted whether the Attorney-General ought not to have been a party to that suit. See Lord Red. 137. * Chaytor v. Trinity College, 3 Anst. 841 ; Story Eq. Jur. § 121, and cases cited. * Good V. Blewitt, 13 Ves. 397, In that case the bill was originally filed by the captain in his own right, but was allowed to be amended by introducing the words, "on behalf of himself," &c. See West v. Randall, 2 Mason, 193, 194; Story Eq. PL § 98. ' 6 Ves. 773. See Sumner's ed. note (a). * 16 Ves. 321. * The rule, that all parties materially interested in the subject-matter of the litigation, should be made parties to the suit, cannot be dispensed with where the rights of persons not before the Court are so indispensably connected with the claims of the parties litigant, that no decree can be made without impairing the rights of the former. Hallett v. Hallett, 2 Paige, 15. See Story Eq. PI. § 130 etseq. § 77, 94. 20* 234 OF PARTIES TO A SUIT. selves and the other shareholders ui a Joint-Stock Association, not established by Act of Parliament, who had by deed assigned their shares to the plaintiffs, and constituted the plaintiffs their attor- neys to institute suits, «fec., in order to give effect to their claim, but upon trust for themselves, Sir J. Leach, V. C, allowed a de- murrer, because the assignors were not parties, although it was stated in the bill that they were very numerous, and that naming them as parties on the record would, in all probability, render it impossible for the plaintiffs to obtain a decree in the cause .^ It is, moreover, generally necessary, in order to enable a plaintiff to sue on behalf of himself and others who stand in the same rela- tion with him to the subject of the suit, that it should appear that the relief sought by him is beneficial to those whom he undertakes to represent ; ^ and 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,^ Thus, where a plaintiff, being one of the subscribers to a loan of money to a foreign state, filed a bill on behalf of himself and all other sub- scribers to that loan, to rescind the contracts of subscription, and to have the subscription moneys returned, Lord Eldon held, that the plaintiff was not entitled in that case to represent all the other subscribers, because it did not necessarily follow that every sub- scriber should, like him, wish to retire from the speculation, and every individual must, in that respect, judge for himself.* And upon the same principle, one of the inhabitants of a district, who claimed a right to be served with water, by a public company, can- not file a bill on behalf of himself and the other inhabitants, to compel that company to supply water to the district upon particular terms, because what might be reasonable with respect to one might not be so with regard to the others.^ Where, however, it is per- fectly clear that the object of the suit is for the benefit of all the * Blain v. Agar, 1 Sim. 37. « Gray v. Chaplin, 2 S. & S. 267 ; Attorney- General v. Heelis, 2 S. & S. 77; Bainbridge v. Burton, 2 Beav. 539 ; Story Eq. PI. § 113, 131 a. ' Van Sandau v. Moore, 1 Rus. 465. * Jones V. Del Rio, 1 Turn. R. 297 ; in which cases the plaintifTs had each a separate right to sue, and Lord Eldon also held, that as the plaintiffs could not support their bill, suing on behalf of themselves and others having similar rights, they could not, having three distinct demands, file one bill. * Weale v. West Middlesex Waterworks, 1 J. & W. 370 ; and see judgment of Lord Eldon in Beaumont v. Meredith, 3 V. & B. 181 ; Story Eq. PI. § 120, 123, 125. OF NECESSARY PARTIES TO A SUIT. 235 parties interested, a few may maintain a bill on l)ehalf of them- selves and the others, even though the majority disapprove of the institution of the suit. Tlius wliere an act complained of was necessarily injurious to the common right, Sir J. Leach, V. C, suf- fered a few of a large number of persons to maintain a suit on be- half of themselves and the others for relief against it, although the majority approved the act, and disapproved of the institution of the suit.^ Upon the same principle, in Small v. Attwood,'^ a few shareholders of a Joint-Stock Company were permitted to maintain a suit on behalf of themselves and other shareholders, for tlie pur- pose of rescinding a contract, it being manifest from the evidence that it was for the benefit of all the shareholders that the contract should be rescinded. The great increase in number of Joint-Stock Companies, and trading associations in which large classes of persons are jointly interested has 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 Wallworth v. Holt,* the bill was filed by the plain- tiffs on behalf of themselves and all others, the shareholders and partners of the banking company, called the Imperial Bank of England, 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, but it prayed the assistance of the Court in the realiza- tion of the assets of the company, and in the payment of its debts, and that for that purpose a receiver might be appointed, and author- ized to sue for calls unpaid and other debts due to the company in the name of the registered officer, who was one of the defendants. To this bill a demurrer was put in, upon the argument of which the two most important objections to the bill were, 1st, That it was not the practice of the Court to interfere between partners, 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 * Bromley v. Smith, 1 Sim. 8 ; Story Eq. PI. § 114, 114 a, 115. * 1 Young, 407. * Beatty v. Kurtz, 2 Peters, 566 ; Smith v. Swormstedt, 16 Howard, 288 ; Whitney v. Mayo, 15 111. 251 ; Putnam v. Sweet, 1 Chand. (Wis.) 286 ; Morgan V. New York & Albany R. R. Co. 10 Paige, 290. * 4 M. & C. 635. 236 OF PARTIES TO A SUIT. the Court to withhold its jurisdiction, except upon bills praying 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 affairs. This result is quite sufficient to show that such cannot be the law ; for, as I have said upon other occa- sions,^ I think it the duty of this Court to adapt its practice 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 would, according to the general practice, have been necessary parties.^ In the case of Taylor v. Salmon,^ the plaintiff and three other persons described as directors and copartners of a certain mining company, on behalf of themselves and all other the copartners of the company, obtained a decree for the specific performance of a lease to the plaintiffs, according to the terms of an agreement en- tered into between the two defendants, one of whom was a share- holder in the company, and was proved to have acted as agent for the plaintiffs in negotiating the lease with his codefendant ; and an objection that such defendant was a shareholder, and that therefore the plaintiffs could not sue on his behalf was overruled. It does not appear, moreover, that the fact of a company being incorporated by Act of Parliament, necessarily prevents individual members of the corporation suing on behalf of themselves and the others members of the company. In Foss v. Harbottlc,* Sir J. 1 See Mare v. Malachy, 1 My. & Cr. 559 ; Taylor v. Salmon, 4 Uy. & Cr. 134. » Story Eq. PI. § 76 c, 96, 115, 115 a, 115 b ; West v. Randall, 2 Mason, 181 ; Colt V. Lesnier, 9 Cowen, 320, 330 ; Decks v. Stanhope, 14 Sim. 57 ; Collyer, Partn. (Perkins's ed.) 361, in note. Representatives of a deceased partner should be made parties to a bill to dissolve a partnership, and the bill may be amended for that purpose. Buchard v. Boyce, 21 Georgia, 6. » 4 My. & Cr. 134. See also ]\Iil!igan v. Mitchell, 3 My. & Cr. 72; Kitchens t7. Congreve, 4 Russ. 562 ; Gordon v. Pym, 3 Hare, 223 ; Moor v. Veazie, 32 Maine, 355. ♦ 2 Hare, 491 ; see also Preston v. Grand Collyer Dock Company, 11 Sim. 1. OF NECESSARY PARTIES TO A SUIT. 237 Wigram, V. C, observed, " corporations of this kind are in truth little more than private partnerships; and in cases which may easily be suggested, it would be too much to hold, that a society of private persons associated together in undertakings, which, though certainly beneficial to the public, are nevertheless matters of pri- vate property, are to be deprived of their civil rights, inter se, be- cause, in order to make their common objects more attainable, the Crown or the legislature may have conferred upon them the bene- fit of a corporate character. If a case should arise of injury to a corporation by some of its members, for which no adequate remedy remained, except that of a suit by individual corporators in their private characters, and asking in such a character the protection of those rights to which in their corporate capacity they were en- titled ; I cannot but think that the principle so forcibly laid down by Lord Cottenham in Wallworth v. Holt,i and other cases, would apply, and the claims of justice would be found superior to any difficulties arising out of technical rules, respecting the mode in which corporations are required to sue." 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 so 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 others, a deinurrer 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 committee for managing the trading concerns of the company, it was dis- missed, because it was not filed by the plaintiffs " on behalf of themselves and the other partners not members of the commit- ' 4 My. & Cr. 635. * One stockholder of a manufacturing corporation cannot alone maintain a bill in Equity to compel the execution of a trust, by persons who have taken a con- veyance of the company property in trust to pay its debts, 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 numerous, or, if too numerous, the bill should be brought by some in behalf of all, so that the rights of all may be duly adjudicated in the final decree. Heath t;. Ellis, 12 Gushing, 601 ; Allen v. Curtis, 26 Conn. 456. Where a plaintitf sued on behalf of himself and others, it was held, that the defendant, after answering to the merits of the bill, could not object that the plaintiff had no right to bring his bill in that form. Messervey v. Barelli, 2 Hill Ch. 567. ' Leigh V. Thomas, 2 Ves. 312. 238 OF PARTIES TO A SUIT. tee." ^ In Hales v. Pomfret,^ Lord Chief Baron Richards said, tliat properly a bill to establish a modus should be brought by owners and occupiers, on behalf of themselves and of all other owners and occupiers of lands within the parish, and that the Or- dinary should be a party .^ It is to be observed, that the Court will sometimes allow a bill, which has originally been filed by one individual of a numerous class in his own right, to stand over at the hearing, in order that the bill may be amended, so as to make such individual sue on behalf of himself, and the rest of the class.^ Section II. Of Necessary Parties to a Suit, in respect of their interest in resisting- the Demands of the Plaintiff.^ A PERSON may be affected by the demands of the plaintiff in a suit, either immediately or consequentially.^ Where an individual 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 he has an immediate interest in resisting the demand, and all per- ^ Baldwin v. Lawrence, 2 S. & S. 18 ; and see Douglass v. Horsfall, 2 S. & S. 184. * Daniell, Ex. Rep. 142. ' Vide ace. Woollaston v. Wright, 3 Anst. 801. * Lloyd V. Loaring ; see also Milligan v. Mitchell, 1 M. C. 433 ; and post, on Amending Bills. * See ante notes to pp. 181 to 183, and particularly Equity Rule 22, of the U. States Courts quoted on the latter page. By Equity Rule 48, of the same Court, it is provided that, " in all cases, 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 incapable otherwise of being made parties, or because their joinder would oust the jurisdiction of the Court, as to the parties before the Court, the Court may in their discretion proceed in the cause without making such persons parties ; and in such cases the decree shall be without prejudice to the rights of the absent parties." * A town must be a party 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. OF NECESSARY PARTIES TO A SUIT. 239 sons who have such immediate interests arc necessary parties 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, first, in respect of their immediate interest ? and secondly, in respect of their consequential interest ? I shall first proceed to consider who are necessary parties to a suit, in respect of their immediate interest in resisting the plain- tiff's demand. And here it is to observed, that where parties are spoken of as having an interest in the question, it is not intended to confine the definition to those only who are beneficially inter- ested, 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. Under this definition are included all persons who fill the charac- ter of trustees of the property in dispute. But the rule is subject 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 perform- ance of such contract against his principal.^ And so, where a per- son having no interest in the matter joins with another who has, in a contract for sale, as where a man having gone through a ficti- tious 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 plaintiff suc- * Kingsley v. Young, Coop. Tr. PI. 42 ; vide ante, p. 248 ; Story Eq. PI. § 231 ; Lang V. Brown, 29 Georgia, 628. ' Sturge V. Starr, 2 M. & K. 195. 240 OF PARTIES TO A SUIT. ccediiig ill his suit, the defendant may have a demand over against him, he is a necessary party. ^ Thus in Jones v. Jones,^ where a plaintiff sought to set aside a lease on the ground of fraud, 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 the cestuis que trust against the purchasers to set aside the convey- ance, the trustees were necessary parties.^ A trustee, however, who is named in the 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 the will on the ground of fraud.4 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 ; ^ thus, where a bill was filed by an annuitant to recover the arrear of his annuity, against the heir of the person in whom the estate out of which the annuity was payable, was vested ; and it appeared that the heir had assigned his interest in the estate to another, who was a mort- gagee of the estate, and had paid the annuity down to a certain period, and had then stopped ; it was held that the plaintiff ought to have made the assignee a party ; by which means she would have gotten the mortgage deeds, and the Court would then have decreed the assignee to have paid the annuity, and the assignor to stand as a security for having broken the trust.^ It was formerly generally necessary where there were more trus- ^ See McKinley v. Irvine, 13 Alabama, 681 ; Cassiday v. McDaniel, 8 B. Mon- roe, 519 ; Morrow v. Lawrence, 7 Wis. 574. « 3 Atk. 110. ^ Harrison v. Pryn, Barnard, 324. * Richardson v. Hulbert, 1 Anst. 65. * If the trustee has assigned his trust absolutely, the assignee should be made a party in his stead, and the trustee need not be made a party, unless the assign- ment is a breach of trust. Story Eq. PI. § 211, 213, 214 ; Bromley v. Holland, 7 Sumner's Vesey, 3, and note (c) ; Munch v. Cockerell, 8 Sim. 219. But if the bill is brought to remove the trustee, and recover from a stranger property im- properly sold by the trustee, it is not a case of misjoinder. AVhitman v. Aber- nathy, 33 Ala. 154. * Burt V. Dennett, 2 Bro. C. C. 225, Perkins's ed. note (a) ; Story Eq. PI. § 209 ; Bailey v. Inglee, 2 Paige, 278. OF NECESSARY PARTIES TO A SUIT. 241 tees than one, that they should all he parties if amcnahlc to the process of the Court ; ^ but this rule has been in some respects modified by the 32d Order of August, 1841, which enables a plain- tiff who has a joint and several demand against several persons to proceed against one or more of the several persons liable without making the others parties,^ — and even before this Order, in some cases where they 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 who were dead, for an account of the receipts and payments of his testator, who alone managed the trust, without bringing the representatives of the other trustees before the Court, and an objection was taken on that ground, the objection was overruled, because the plaintiff insisted only upon having an account of the receipts and disburse- ments of the trustee, whose representative 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 after- wards 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 himself, the benefit or possible benefit of any part of the trust fund.^ This query seems to be in accord- ance with the principles laid down in Williams v. Williams.^ The rule which requires the trustees of property in litigation to be brought before the Court, requires the presence of the commit- » Vin. Ab. Party, B. 68. " See p. 260. 5 Lady Selyard v. The Executors of Harris, 1 Eq. Ca. Ab. 74. But see Munch V. Cockerell, 8 Sim. 219 ; Story Eq. PI. § 214, note. * See Story Eq. PI. § 207 a, 212, 213, 214, and notes. * Routh V. Kinder, 3 Swan. 144, n., from Lord Colchester's MSS. * 9 Mod. 299. VOL. 1. 21 242 Of parties to a suit. tees of the estates of idiots and lunatics in a suit against the idiots or lunatics committed to their care ; ^ because by the grant to them of the estates of such idiots or lunatics, they are constituted 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 same reason, wherever the demand is sought to be satis- fied out of the personal estate of a person deceased, it is necessary to make the personal representative a party to the suit. Thus, although, 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 de- scription, 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 applied 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 dis- charged, the Court allowed both the plea and demurrer, but gave the plaintiff leave to amend his bill as lie might be advised.^ Upon the same principle, the specific legatee of a term suing for the term, must make the executor a party, even though it is al- ^ Lord Red. 31. It seems that upon a bill for the recovery of a debt, due from a drunkard, against his committee, the drunkard is a proper, though not a necessary, party. Beach v. Bradley, 8 Paige, 146. " See Storm v. Davenport, 1 Sandford (N. Y.), Ch.l35; Hilliard Bank. & Ins. 383, 384 ; Moran v. Hays, 1 John. Ch. 339 ; Sells v. Hubbell, 2 John. Ch. 394 ; Springer v. Vanderpool, 4 Edw. Ch. 362 ; Botts v. Patton, 10 B. Monroe, 452. * Attorney-General v. Wynne, Mos. 126. See ante, p. 188; post, ch. 6, § 4, and notes to the point, " Legatee or creditor cannot sue debtor to testator's estate." * See Po.^tlethwaite v. Howes, 3 Clarke (Iowa), 365. But the heirs need not be made parties to a suit relating exclusively to the personalty. Galphin v. M'Kin- ney, 1 McCord Ch. 280. But it is otherwise in regard to a suit respecting the real estate. Kennedy v. Kennedy, 2 Ala. 571 ; Smith v. West, 5 Litt. 48 ; Carr V. Callaghan, 3 Litt. 365. And to a bill against an administrator, to charge the estate with an annual paymcint, to preserve the residue, the distributees of the estate are necessary parties. Cohcen v. Gordon, 1 Hill Ch. 51. * Griffith 17. Bateman, Rep. t. Finch, 334. See ace. Rumney v. Mead, ibid. 803 ; Attorney-General v. Twisden, ibid. 336. OF NECESSARY PARTIES TO A SUIT. 243 Icged in the bill that the executor had assented to the bequest.^ Where, however, a bill was filed by the reversioner against the leg- atee 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 improve- ment of the premises, the executor of the testator, who had as- sented to the bequest, was not considered a necessary party to the suit.^ And where an executor had been outlawed, and a witness proved that he had inquired after but could not find him, it was thought to be a full answer to the objection, that he was not a par- ty to a suit which had been instituted by a creditor of the de- ceased testator against the residuary legatee.^ Moreover, in some cases, wiiere the fund, the subject of the suit, has been ascertained and appropriated, the Court has dispensed with the appearance of a personal representative to the testator, by whose will the fund has been bequeathed.* The rule which requires the executor to be before the Court in all cases relating to the personal estate of a testator, extends to an. executor durante minore cetale^ even, though the actual executor lias attained twenty-one, and has obtained probate thereon : thus, where there has been an executor durante minore cetate of the daughter of a testator, and after the daughter attained twenty-one a bill was brought against her without making the executor durante minore cetate a party, although it was insisted that the daughter, being of full age, was complete executrix ab initio, and had the whole right of representation in her ; yet it was held, that the representative durante minore cetate, was a necessary party, and that for want of him the cause must stand over.^ It is to be observed, however, that if the last case of the daugh- ter had received all the testator's personal estate from the hands of tiie executor durante minore cetate, upon an account between them, the objection for want of parties would have been overruled. The personal representative required, is one resident in England, and where a testator appointed persons residing in India and Scot- ^ Moor V. Blagrave, 2 Ch, Ca. 277. ^ Malpas V. Ackland, 3 Russ. 273. ^ Heath v. Percival, 1 P. Wms. 683. * Arthur v. Hughes, 4 Beav. 506 ; Beasley v. Kenyon, 5 Beav. 544 ; Bond v. Graham, 1 H. 484 ; Story Eq. PI. § 214. * Glass V. Oxenham, 2 Atk. 121. 244 OF PARTIES TO A SUIT. land his executors, and the will was not proved in England, but the plaintiff, a creditor, filed a bill against the agent of the executors, to whom money had been remitted, praying an account and pay- ment of the money to the Aceountant-General for security, a de- murrer, because no personal representative of the testator resident within the jurisdiction of the Court was a party, was allowed.^ And so, where an executor proved the will of his testator in In- dia, 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, it was held necessary that a personal representative should be con- stituted in England, and made a party to the suit.'-^ It seems, that where an administration is disputed in the Eccle- siastical Court, the Court of Chancery will entertain a suit for a » Lowe V. Farlie, 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 ; Ash- mead V. Colby, 26 Conn. 287. ^ Bond V. Graham, 1 H. 482 ; Tyler v. Bell, 2 M. & C. 89. But see Anderson V. Gaunter, 2 M. K. 763. For the method of obtaining limited or special adminis- tration where the executor Is abroad, see ante, p. 191, 192. Some of the American Courts have gone so far as to hold, that a foreign executor or administrator, coming here, having received assets in the foreign country. Is liable to be sued here, and to account for such assets, notwithstanding he has taken out no new letters of administration here, nor has the estate been positively settled in the foreign state. Swearlngen v. Pendleton, 4 Serg. & R. 389, 392 ; Evans v. Tatem, 9 Serg. & R. 252, 259; Bryan v. McGee, 2 Wash. C. C. 337; Campbell v. Tou- sey, 7 Cowen, 64. See also Dowdale's case, 6 Coke, 47; Julian v. Reynolds, 8 Alabama, 680. This doctrine, however, seems not to receive a very general sanction. See Story Conf. Laws, § 514 b. The doctrine of the text is best sup- ported by authority. See Story Conf. Laws, § 514 b. and notes; Boston v. Boylston, 2 Mass. 384 ; Goodwin v. Jones, 3 Mass. 514 ; Davis v. Estey, 8 Pick. 475; Dawes v. Head, 3 Pick. 128; Doollttle v. Lewis, 7 John. Ch. 45, 47; Mc- Rea V. McRea, 11 Louis. 571; Attorney-General v. Bowens, 4 Mees. & Wels. 171. In Campbell v. Wallace, 10 Gray, 162, it was held, that there Is no equity jurisdiction in Massachusetts 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 which has been filed in the Probate Court of that State. See Campbell v. Sheldon, 13 Pick. 8. Li Slatter v. Carroll, 2 Sandf. Ch. 573, it was ])eld that, In a case, where there arc real assets of the estate of a deceased person within its jurisdiction, although no administration has been taken within the State, a Court of Equity will not hesitate to administer them ; and the foreign executors may be made parties to the suit Instituted for that purpose. See Scruggs V. Driver, 31 Alabama, 274. OF NECESSARY PARTIES TO A SUIT. 245 receiver to protect the property till the question in the Ecclesias- tical Court is 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 dispensed 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 D'aranda v. Whittingham,'^ where the heir of an obligor demurred to a bill by an obligee, because the administrator of the obligor was not a party, 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 tiie intestate's property, an objection for want of parties, on the ground that there was no administrator before the Court, was overruled.* Where there are several executors or administrators, they must all be made parties, even though one of them be an infant ;^ but ' Atkinson v. Henshaw, 2 V. & B. 85 ; Ball v. Oliver, ibid. 96. « Story Eq. PI. § 91. 5 Moss. 84. * Cleland v. Cleland, Prec. Ch. 64. And now by 15 & 16 Vict. c. 86, sec. 44, " If in any suit or other proceeding before the Court, it shall appear to the Court that any deceased person, who was interested in the matter in question, has no legal representative, it shall be lawful for the Court either to proceed in the absence of any person representing the estate of such deceased person, or to appoint some person to represent such estate for all the purposes of the suit or other proceeding, on such notice to such person or persons (if any) as the Court shall think fit, either specially or generally, by public advertisements ; and the order so made by the said Court, and any order consequent thereon, shall bind the estate of such deceased person in the same manner, in every respect, as if there had been a duly constituted legal personal representative of such deceased person." It seems that under this the Court will not dispense with a personal representative of the deceased in any ordinary case of administration, Silver v. Stein, 1 Dru. 295, except where there is a difficulty arising from the insolvency of the person to be represented or some other similar cause. Long i: Storie, 1 Kay, App. 12. The proper person to be appointed is the person who would under the old practice be the administrator ad litem. Dean of Ely v. Gayford, 16 Beavaa, 561. * Scurry v. Morse, 9 Mod. 89 ; Offey v. Jenny, 3 Ch. Rep. 92. 21 * 246 OF PARTIES TO A SUIT. this rule may be dispensed with, if any of them are not amenable to the process of the Court,^ or if they have stood out process to a sequestration ; and if an executor lias not administered he need not be a party .^ 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 had alone proved the will and acted in the executorship, and that the others never inter- meddled therein, it was said to be good.^ In that case, however, if the executor who had proved had died, it would not have been sufficient to liave brought his executor before the Court, because he would 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 without a new representative of the original tes- tator. Wherever an executor has actually administered, he must be made a party to a suit, although he has released and disclaimed.^ But where a plaintiff 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 discover 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 execu- tors was abroad, an account was decreed of his own receipts and payments.'^ Tiie cases do not seem to afford a very clear answer to the ques- tion, under what circumstances, in a suit to administer the assets of a deceased testator or intestate, the plaintiff ought to join, with the existing personal representatives, such parties as fill the position of 1 Cowslad V. Cely, Prec. Ch. 83. " Went. Off. Ex. 95 ; Strickland v. Strickland, 12 Sim. 463. So where a bill seeks discovery and relief only against the acts of one of the executors 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 made a party, during the progress of the suit, if it shall prove to be expedient or necessary. Footman v. Pray, R. M. Charl. 291. See ante, 240, 241. 3 Brown v. Pitman, Gilb. Eq. R. 75; IG Vin. Ab. tit. Parties, B. PI. 19 ; Cra- mer V. Morton, 2 Moll. 108; Clifton v. Ilaig, 4 Desaus. 330; ante, 211, 213. * Arnold v. Blencowe, 1 Cox, 426. ^ Smitbly v. Shuton, 1 Vern. 31. * Boyer v. Covert, 1 Vern. 95 ; Story Eq. PI. § 92. See Willis v. Henderson, 4 Scam. 20. ' Cowslad V. Cely, Prec. in Ch. 83 ; Clifton v. Haig, 4 Desaus. 330. OF NECESSARY PARTIES TO A SUIT. 247 Lord Red. 166. See Neale v. Hagthorpe, 3 Bland, 551 ; Wilkinson v. Perrin, 7 Monroe, 217 ; Galphin v. M'Kinney, 1 M'Cord Ch. 294 ; Story Eq. PI. § 140, and note; Pridiard v. Hicks, 1 Paige, 270; Kinlock v. Meyer, 1 Speer S. C. Eq. 428 ; Blackwell v. Blackwell, 33 Alabama, 57. 2 Anon. 1 Vern. 261; 1 F.q. Ca. Ab. 73, PI. 13; Lawson v. Barker, 1 Bro. 303 ; Love v. Jacomb, ibid. ; Story Eq. PI. § 104, and 140, in notes ; Wiser v. Blackley, 1 John. Ch. 437 ; Dandridge v. Washington, 2 Peters, 377. ' Brown v. Dowthwaite, 1 Mad. 447. * Haycock v. Haycock, 2 Ch. Ca. 124. ' Langley v. Earl of Oxford, Amb. 1 7. But see Sergeant Hill's note of this case, in Blunt's edition of Ambler, Appendix C. 250 OF PARTIES TO A SUIT. the wife against the executor for a delivery of them to her, the specific legatees were considered necessary parties.^ The assignees of a bankrupt or insolvent debtor are also, as has been before stated, the proper parties to represent the estates vest- ed in them under the bankruptcy or insolvency, and therefore, in all cases where claims are sought to be established against the es- tates of a bankrupt or an insolvent debtor, it is necessary to bring only the assignees before the Court, and the bankrupts or insolv- ents themselves, or their creditors, are unnecessary parties.^ Thus it has been held, that a bankrupt is not a necessary party to a bill of foreclosure against his assignees,^ and Sir John Leach, V. C, allowed a demurrer, put in by a bankrupt who was made a party to a bill of foreclosure against his assignees, even though there had been no bargain and sale executed by the commissioners.* It is to be observed, however, that where fraud and collusion are charged between the bankrupt and his assignees, the bankrupt 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, filed a bill against the debtor, against whom a commission of bankrupt had issued, and the persons claim- ing as assignees under the commission, charging that the commis- sion was a contrivance to defeat the plaintiff's execution, and that the debtor having, by permission of the plaintiff, possessed part of the goods which had been taken in execution for the purpose 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.^ Subject to the above exceptions, and to the rules hereafter re- ferred to with regard to real estates, the rule is, that all cestuis que ^ Northey v. Northey, 2 Atk. 77, So to a bill by the widow of an intestate asrainst the administrator, to recover her share of the estate, all the distributees of the intestate should be made parties. Chinn v. Caldwell, 4 Bibb, 543. « Collet V. Wollaston, 3 Bro. C. C. 228 ; Milliard Bank. & Ins. 383, 384 ; Sells V. Ilubbell, 2 John. Ch. 394 ; Springer v. Vanderpool, 4 Edw. Ch. 3G2. On a bill filed by a receiver for the creditors and stockholders of a corporation, it is not necessary to make the creditors and stockholders parties. Mann v. Bruce, 1 Halst. Ch. (N.J.) 413. ' Adams v. Holberte, Har. Ch. P. 30 ; Bainbridge v. Pinhorn, 1 Buck. 135. * Lloyd V. Lander, 5 Mad. 288. ' King V. Martin, 2 Ves. jr. G41, cited Lord Red. 1G2. In a bill to set aside a conveyance as made without consideration and in fraud of creditors, the alleged fraudulent grantor is a necessary defendant in the bill. Gaylords v. Kelshaw, I Wallace U. S. 81. OF NECESSARY PARTIES TO A SUIT. 251 trust arc necessary parties to suits against their trustees, by which their rights are likely to be affected.^ Thus, on a bill for redemp- tion, the defendant in his answer set forth that he was a trustee for A., it was objected to the plaintiif at the hearing, that the cestui que trust should have been made a party, and because it was dis- closed in the answer, and he might have amended, the bill was dismissed.2 And so in a bill against the heir of a mortgagee to redeem, the personal representative 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 cestuis que trust are very nu- merous, the necessity of bringing them all before the Court has been dispensed with.* Thus, where upon a bill brought against an assignee of a lease to compel him to pay the rent, and perform the covenants, it appeared that the assignment was upon 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 di- viding the shares, had made it impracticable to have them all be- fore 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 benefitted 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, however, the bill alleged their great number as a reason for not making them all parties, 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 dispensed with ; ^ and upon the same principle, where the trusts were for the payment of debts or legacies generally, the trustees alone were allowed to sustain the suit, either as plaintiffs or defendants, without bringing before the Court the creditors or legatees for whom they were trustees ; "* and now (as it has been * Story Eq. PI. § 192, 193, 207 ; Helm v. Hardin, 2 B. Monroe, 232. * Whistler V. Webb, Bunb. 53. ' See Guthrie v. Morrell, 6 Iredell Eq. 13. * See post, 263. ^ City of London v. Richmond, 2 Vern. 421. N. B. In that case the original lessee was considered a necessary party. Story Eq. PI. § 118. * Holland v. Baker, 3 H. 68 ; Harrison v. Stewardson, 2 H. 530. See Story Eq. PI. § 150 ; Johnson v. Candage, 31 Maine, 28. ' Lord Red. 174. See Stevenson v. Austin, 3 Metcalf, 474, 480. 252 OF PARTIES TO A SUIT. stated) tliG 30th Order of August, 1841, enables such trustees of real estate by devise, as liave powers of selHng and giving dis- charges, to represent the persons beneficially interested.^ It seems doubtful, however, whether this Order will apply to cases where a mortgagee seeks to foreclose the equity of redemp- tion of estates wliich are subject to such trusts ; ^ before the Order, where the equity of redemption of an estate mortgaged in fee had been conveyed to trustees, upon trust, to sell and pay off incum- brances, and to divide the surplus amongst persons specified in the deed, it was held that the cestuis que trust were necessary par- ties.^ And in a case in the Court of Exchequer, where there was a devise to trustees to sell, and after payment of debts and lega- cies, to divide the surplus amongst several persons, and a bill was filed by a person interested in the surplus, to have his share paid to him, it was held, that all the persons interested in the fund must be parties, although the estates had been sold before the bill was filed.* It is, however, to be observed, that to a suit for the execution of a trust by or against those claiming the ultimate benefit of such trust, after the satisfaction of prior charges, it is not necessary to bring before the Court the persons claiming the bene- fit of such prior charges; and, therefore, to a bill for application of a surplus, after payment of debts and legacies, or other incum- brances, the creditors, legatees, or other incumbrancers, need not be made parties. And persons having demands prior to the crea- tion of such a trust, may enforce these demands against the trus- tees, without bringing before the Court the persons interested under the trust, if the absolute disposition of the property is vested in the trustees. But if the trustees have no such power of dispo- sition, as in the case of trustees to convey to certain uses, the per- sons claiming the benefit of the trust must also be parties. Per- sons having specific charges on tlie trust property are also necessary parties ; but this will not extend to a general trust for creditors or others, whose demands are 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 claiqa against a trust property.^ ^ See p. 208. * Wilton v. Jones, 2 Y. & C. 244. » See also Osbourn v. Fallows, 1 R. & M. 741 ; Calvcrley v. Fhelp, Mad. & Geld. 231 ; Story Etj. PI. § 207, and cases cited in notes. ' Faithful V. Hunt, 3 Anst. 751 ; Story Eq. PI. § 206. » Lord lied. 174 ; Story Eq. Pi. § 216. OF NECESSARY PARTIES TO A SUIT. 253 Where, liowcver, the demands and names of the creditors, al- tliough not actually specified at the time of the creation of the trust, are subsequently ascertained by their signing a schedule to the conveyance, they will become 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 were prior to his own, and have the benefit of the decree as to that part of the demand for which he should not be entitled to priority over the trust-deed ; it was held by the V. C. of Eng- land, that all the creditors who had executed the trust-deed were necessary parties ; and that, as it was stated in the bill tliat several of the creditors had executed the deed, and only one was made a party, the defect appeared sufficiently on the face of the bill to en- title the defendant to take advantage of it by demurrer.^ Where the money secured by a mortgage is subject to a trust, a mortgagor, or any person claiming under him, seeking to redeem the mortgagee, must make all persons claiming an interest in the mortgage-money parties to the suit. Thus, where it appeared that the parties against whom the redemption was prayed were trustees for a woman and her children, the Lord Chief Baron held, that the cestuis que trust were necessary parties to the suit, although under the peculiar circumstances of the case, and to avoid delay and ex- pense, he recommended that a petition should be presented on their behalf, praying that their interests might be protected, and direct- ed the cause to stand over for that purpose.^ And in general it may be laid down as a rule, that there can be no foreclosure nor redemption unless all the parties entitled to the mortgage-money are before the Court.^ Therefore, where a mortgagee had as- signed the mortgage upon certain trusts for the benefit of his fam- * Newton V. Earl of Egmont, 4 Sim. 574 ; vide edam, 5 Sim. 130, S. C. S. P. ; Story Eq. PI. § 133, 149. * Drew V. Harman, 5 Price, 319 ; Story Eq. PI. § 192, 208. ' Palmer v. Earle of Carlisle, 1 S. & S. 423 ; Story Eq. PI. 182 et seq. VOL. I. 22 254 OF PARTIES TO A SUIT. ily, the mortgagee, the trustees, and the cestuis que trusty were considered necessary parties to a bill to redeem.^ And so where a mortgage term had been bequeathed to trustees, upon trust, to sell and ap{)ly the j)roduce among the testator's twelve children and a grandchild nominaliin ; it was held, that all the cestuis que trust, interested in the produce of the terra, were necessary parties, al- thougli they were numerous, and the property small, and although the trustees had power to give a discharge to purchasers.^ But where a mortgagee, who has a plain redeemable interest, makes several conveyances upon trust, in order to entangle the aifair, and to render it difficult for a mortgagor, or his representa- tives, to redeem, there it is not necessary that the plaintiff should trace out all the persons who 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 has made an absolute conveyance with several limitations and remainders over, the decree cannot be complete without bringing before the Court, at least the first tenant in tail, and those having- intermediate estates.^ It seems that where a mortgage is forfeited, and the mortgagee exercises the legal rights he has acquired by disposing of, or encumbering the estate, and the mortgagor comes for the redemption, which a Court of Equity gives him, it must be upon the terms of indemnifying the mortgagee from all costs arising out of his legal acts ; upon this principle. Sir John Leach, in the case of Wetherell v. Collins, above referred to, ordered the mortgagor to pay the costs of the trustees, and cestui que trust, who were necessarily brought before the Court in consequence of the assign- ment 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 redemption,* 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 without the previous authority of the mortgagor, or his declaration, that so much is due, the assignee is the necessary party ;^ for whatsoever the assignee » Wetherell v. Collins, 3 Mad. 255 ; Story Eq. PI. § 192. - Osbourn v. FhUows, 1 R. & M. 741. « Yates V. Ilainly, 2 Atk. 238;. Story Eq. PI. § 144-146, 194, 198. * Anon, in the Duchy, 2 Ex. Ca. Ab. 594, PI. 3. ^ Chambers v. Goldwin, 9 Ves. 2()9. Where a mortgage has been absolutely- assigned, it is not necessary to make the mortgagee a party to a bill brought by OF NECESSARY PARTIES TO A SUIT. 255 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 Ijill to redeem ; a mortgagor, however, cannot be bound by any transac- tion which may take place between a mortgagee and his assignee without 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 mort- gage, and a bill is filed by the mortgagor against the assignee to have an account of the overplus, he may make the mortgagee a party to the bill, because he is clearly accountable for the surplus rents and profits received by himself.^ But upon the principles laid down by Lord Eldon, in the preceding case,^ it would seem, 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 the redemption.* Where, however, there are several derivative mortgages, if the the mortgagor to redeem. Whitney v. M'Kinney, 7 John. Ch. 144. So where there has been more than one assignment of the mortgage, it is sufficient to make the last assignee a party to a bill to redeem. Story Eq. PI. § 184. But 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, to foreclose the mortgage, although the assignment was absolute in terms, and expressed the payment of a full consideration. Kettle v. Van. Dyck, 1 Sandf (N. Y.), 76. Where a mortgagor has assigned all his interest in the estate mortgaged, he is not a necessary party to a bill in equity to redeem by the assignee. Bailey v. Myrick, 36 Maine, 50. ^ Ch'ambers v. Goldwin, 9 Ves. 265. See Matthews v. Walwyn, 4 Sumner's Vesey, 118, note (a). " But see Lennon v. Porter, 2 Gray, 473, where it was held that a mesne as- signee of the mortgage is not a proper party to a bill to redeem, if he has never received any rents and profits ; nor, it seems, if he has. * Chambers v. Goldwin, 9 Ves. 268, 269. * Chambers v. Goldwin, 9 Ves. 268 ; Story Eq. PI. § 189 ; Lennon v. Porter, 2 Gray, 473. 256 OF PARTIES TO A SUIT. mortgagor seeks to redeem the first, he must make all the subse- quent mortgagees parties, because they are all interested in the account.^ The rule which requires that all cestuis que trust should be be- fore the Court in suits relating to trust property, applies to result- ing trusts as well as others. Thus, where there is a grant or de- vise of a real estate, cither 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, where a private founder has appointed no visitor, his heir at law is considered a necessary party to an information for the regulation 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 disinherited or not, he must be a party.* Wherever a real estate is to be recovered, or a right is sought to be established, or a charge raised against real estate, it is neces- sary that the person or persons entitled to the inheritance should be before the Court. Upon this principle it is, that in a bill by a specialty creditor, to obtain payment of his demand out of the real estate of his debtor, the heir, as well as the executor, is a necessary party .^ Where, however, the arrears of an annuity, charged upon real estates, are sought to be recovered, if the arrears are such ^ Ilobart V. Abbott, 2 P. Wms. 643, ante, p. 187, and notes. Kettle v. Van Dyck, 1 Sandf. (N. Y.) 76 ; Story Eq. PI. § 191, 193, 199. '^ llipley V. Waterworth, 7 Sumner's Vesey, 425, Perkins's note (c), and cases cited; 2 Story Eq. Jur. § 1196 e< seq., and notes ; Soott v. Fenboulett, 1 Bro. C. C. (Perkins's ed.) 70, note (a). ' Attorney-General v. Gaunt, 3 Swan. 148, n. * Attorney-General v. Green, 2 Bro. C. C. 495 ; see ante, p. 222 ; Order XXXI. August, 1841. See Story Eq. PI. § 180. * But where the bill is filed by the creditors for the purpose of making their debts out of real estate specifically charged by the testator with the payment of them, the heirs at law are not necessary parties. Smith v. Wycoif, 11 Paige, 49. But in such a case, all the creditors, whose debts are charged upon the land, should be made parties if they are named in the will, and whose debts are still due. lb. OF NECESSARY PARTIES TO A SUIT. 257 only as were due in the lifetime of the ancestor, it will be sufficient 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 Law, 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, where 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 inlieritance 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 ; for this Court will not bind the inheritance of any person, unless such person is a party .^ Upon the same principle, where a bill is filed to establish a modus, or customary payment, against an ecclesiastical rector, the patron and ordinary are necessary parties,* the former because the right of presentation which belongs to him would be affected by the decree, the latter because his presence in the suit protects the right of tlie church against collusion.^ In Hales v. Pomfret,^ Lord Chief Baron Richards said that he had never known an in- stance of a bill to establish a modus, to which the ordinary was not a party, being brought to a hearing without its being ordered to stand over for the purpose of making him a party by amend- ment. Upon the same ground, where a bill was filed to establish a modus against 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 1 Weston V. Bowes, 9 Mod. 309 ; Story Eq. PI. § 181. ^ Spendler v. Potter, Bunb. 181. ' GlanvII V. Trelawney, Bunb. 70. * Gordon v. Sirapkinson, 11 Ves. 509. ^ Cook V. Butt. Mad. & Geld. 53. « Daniell, Ex. Rep. 142. ' De Whelpdale v. Milburn, 5 Price, 485. 22* 258 OF PARTIES TO A SUIT. present incumbent, the owner of the inheritance, if made a party, may demur ; ^ and so, if in a bill for an account of tithes against an occupier, the owner of the hind is made a party ,2 he is entitled to have the bill dismissed against him, though if he mixes in the de- fence, 2 Sch. & Lef. 210. ■ ' Reynoldson v. Perkins, Amb. 564. ' Per Lord Eldon, in Lloyd v. Johnes, 9 Ves. 64 ; vide etiam, Gifford v. Hort, 1 Sch. & Lef. 386 ; Story Eq. PL § 144, 145. * Powell on Mortgages, 1054. * Per Lord Eldon, in Gower v. Stacpoole, 1 Dow. 18, 32. OF NECESSARY PARTIES TO A SUIT. 263 tied to the first vested estate of inheritance.'^ Executory devises to persons not in being may in like manner be bound by a decree against a vested estate of inheritance, but a persou 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 ;2 and in general, where a person is seised in fee of an estate, having that seisin lialjle 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 upon the defeat of the estate in fee are neces- sary parties.3 The importance of this rule may hereafter be increased by the operation of the stat. 7 & 8 Vict. c. 76, the recent Act " to simplify the Transfer of Property " ; the 8th section of which abolishes contingent remainders, and enacts that estates of that description shall take effect as executory devises. If after a cause has proceeded a certain length, an intermediate 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 before the termination of the suit, according to the constant practice of the Court, the suit is proceeded in against the next tenant in tail, as if he had been originally a party ; and this is done by means of a supplemental bill. 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, al- though he claim by new limitation, and not through tiie first plain- tiff as his issue, is entitled to continue the suit of the former tenant in tail by supplemental bill, and to have the benefit of the evidence and proceedings in the former suit.^ The general rule requiring all persons interested in resisting the plaintiff's demands to be brought before the Court as defendants, in order to give them an opportunity of litigating the claim set up, formerly rendered it imperative, wherever more than one person was liable to contribute to the satisfaction of the plaintiff's claim that they should all have been made parties to the suit.^ This ^ Lord Cholraondeley v. Lord Clinton, 2 Jac. & W. 7, and 133; Hopkins u. Hopkins, 1 Atk. 590. ' Lord Red. 174. ' Goodess v. Williams, 2 Y. & C. 598. * Per Lord Eldon, in Lloyd v. Jolines, 9 Ves. 59. " Lloyd V. Johnes, 9 Ves. 59 ; Story Eq. PI. § 144, 146, and notes. ' Jackson v. Rawlins, 2 Vern. 195. See Ferrer v. Barrett, 4 Jones Eq. (N. C.) 455 ; Hart v. Coflfee, 4 Jones Eq. (N. C.) 321 ; Young v. Lyons, 8 Hill, 1G2. 264 OF PARTIES TO A SUIT. application, however, of the general rule has been materially modi- fied by the 32d Order of August, 1841, which is, that in all cases in which the plaintiff has a joint and several demand against several persons, either as principals or sureties, it shall not be necessary to bring before the Court as parties to a suit concerning such demand all the persons liable tliereto ; but the plaintiff may proceed against one or more of the persons severally liable. It will, however, be necessary shortly to state what was the 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. Jackson,^ Lord Hardwicke said: — " The general rule of the Court to be sure is, where a debt is joint and several, the plaintiff 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 aj-e different funds, as where the debt is a specialty, and he might at Law sue either the heir or executor for satisfaction, he must make both parties, as he may come in the last place upon the real assets ; ^ but there are exceptions to this, and the exception to the first rule is, that if some of the obligors are only sureties, there is no pretence 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 terms of the Order, no distinction is made between principals and sureties, so that it would appear as if the plaintiff might file his bill against one or more of the sureties, without making the principal a party to the suit. In Allen v. Houlden,^ however, where one of two sureties who had joined the principal debtor in a bond, filed a bill to set aside the transaction on the ground of fraud, and praying an account of the payments made in respect of the bond ; Lord Langdale, M. R.,held, that notwitlistanding the order, the principal debtor and co-surety were necessary parties. And so in Finkus v. reters,^ where tiie plaintiff alleged that he had accepted bills of exchange without consideration, and that he had been sued upon them, and by his bill prayed relief against the drawer and the holder, without making a person to whom the drawer had indorsed the bill a party. Lord Langdale held, that as > 3 Atk. 106. ' Story Eq. PL § 169. « Ibid. * 6 Beav. 148. ^ 5 Beav, 253. OF NECESSARY PARTIES TO A SUIT. 265 there was an allegation that the holder of the bills was a trustee as well for the drawer as also for the indorsee, such intervening indorsee was a necessary party to the suit. The rule, moreover, does not apply to any case where the de- mand 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 parties. Thus, if there be a demand against a part- nership 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.^ Thus, where a bill was filed by the captain of a ship, against the personal representative of the survivor of two partners, who were joint owners of the ship, for an account and satisfaction of his demand, it was held that the suit was defective, because the rep- resentatives of the other partner, who might be interested in the account, were not before tlie 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 was not generally necessary, in a suit against the principal, to' make the surety a party ; yet where a person had executed a conveyance, or created a charge upon his own estate, as a collateral security for another, he became a necessary party to a suit against the princi- pal. This appears to have been the result of the determination in Stokes V. Clendon,^ which was the case of a mortgage by a princi- pal of one estate, and by the surety of another, as a collateral se- curity ; and tlie Master of the Rolls determined, that a bill of fore- closure against the principal could not be sustained, without making the other mortgagor a party, because the other had a right to re- 1 Story Eq. PI. § 166-168; Moffat v. Farquharson, 2 Bro. C. C. (Perkins's ed.) 338, and notes ; Story Partn. § 449 ; 1 Story Eq. Jur. § 466. In case of a dormant partner, the plaintiff has his election to make him defendant or not. Hawley i>. Cramer, 4 Cowen, 717; Goble v. Gale, 7 Blackford, 218; CoUyer, Partn. (Perkins's ed.) § 391 in note. * Pierson v. Robinson, 3 Swan. 139, n. ; Story Eq. PI. § 194 ; Wells v. Strange, 5 Georgia, 22. So where a bill is brought to recover a debt against the estate of a deceased partner, the other partners are proper and necessary parties. Vose V. Philbrook, 3 Story C. C. 335. ' This Order has been adopted in the Equity Rules of the United States Su- preme Court. Equity Rule, 51. * Cited 2 Bro. C. C. 275, notis, Edit. Belt. VOL. I, 23 266 OF PARTIES TO A SUIT. deem and be present at the account, to prevent the burden ulti- mately falling upon his own estate, or at least falling upon it to a larger amount than the other estate might be deficient to satisfy. There has been no decision on the point, but it does not appear that the 32d Order has made any alteration in this respect ; so that it may be considered still necessary to make the owner of an estate mortgaged as collateral security a party to a bill against the prin- cipal. In Stokes v. Clendon, it is to be observed, that the surety had conveyed his own estate by way of security to the mortgagee. Where, however, he merely enters into a personal covenant as surety for the principal, but does not convey any estate or interest to the mortgagee, there he will not be considered as a necessary party ; and where A. having a general power of appointment over an estate, in the event of his surviving his father, joined with two other persons as his sureties in a covenant, to pay an annuity to the plaintiff: and also covenanted, that he would create a term in the estate if he survived his father ; and upon the death of his father a bill was filed by the plaintiff against A. and other parties interested in the estate, to have the arrears of his annuity raised and paid ; it was held upon demurrer, that the sureties were not necessary parties.^ In a bill by one surety against anotlier, to make him contribute, it was held, that the executor of a third surety who was dead ought to be a party, though he died insolvent.'-^ In that case the princi- pal had given a counter-bond of indemnity to the plaintiff, who had taken him in execution upon it, and he had been discharged by an Insolvent Act ; and though he appears not to have been made a party, yet no objection was taken ; ^ and it seems that from this circumstance, and also from the case of Lawson v. Wright,* 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 Insol- vent Debtors,) he need not be a party to the suit.^ It will, however, ^ Newton V. Earl of Egmont, 4 Sim. 574. * Hole V. Harrison, Finch, 15. So the principal debtor must be made a party. Trcscott V. Smith, 1 M'Cord Ch. 301. All persons interested should be made parties in such a case. Moore v. INIoberly, 7 B. ISIonroe, 295. Those, however, need not be made parties who have removed beyond the jurisdiction of the Court. McKenna v. George, 2 Rich. Eq. 15 ; ante, 183, 238, and note. ^ Hole V. Harrison, Finch, 15. •* 1 Cox, 27G. ^ Story Ecj. PI. § 16'J. See 1 Story Ya\. .Tur. § 494, 49(5 ; Long y. Dupuy, 1 Dana, 104 ; Young v. Lyons, 8 Gill, 1G2 ; Montague v. Turpin, 8 Grattan, 453 ; OF NECESSARY PARTIES TO A SUIT. 267 be necessary, if the princii)al bo not a party, that the fact of his insolvency should be proved ; whereas, if he be a party to the suit, such proof will be unnecessary. In the case above cited from Finch, the insolvency of the principal was apparent from the fact of his having taken advantage of the Insolvent Act ; but it is pre- sumed that the insolvency of the co-security was not so capable of proof, and that it was upon that ground held necessary to have his personal representative before the Court, in order to take an ac- count of his estate. Wliere the fact of the insolvency of one of the sureties was clear, and admitted by the answers. Lord Hard- wicke held, that there was no necessity to bring his representatives before the Court.^ It seems, however, that the plaintiff has his election, whether he will bring the insolvent co-obligor or his rep- resentative before the Court or not.^ And in all cases coming under the 32d Order, the plaintiff has the option to sue all the persons jointly and severally liable, if he shall think fit. Inde- pendently of this Order, a plaintiff is allowed, in a case where there are several persons who are each liable to account for his own receipts, to file a bill against one or more of them for an ac- count of their own receipts and payments, without bringing the other parties to the suit. Thus, where a residuary legatee brought his bill against one of two executors, without his co-executor, who was abroad, to have an account of his own receipts and payments, the Lord Chancellor said, " The cause shall go on, and if upon the account anything appear difficult, the Court will 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 purely matter of form." ^ The same rule will, it appears, be adopted, where there are joint factors, and one of them is out of the jurisdiction. And in the case of Lady Selyard v. The Executors of Harris,* above referred Watts V. Gayle, 20 Alabama, 817. It is not sufficient in such a case merely to allege the insolvency of the principal. Roane v. Pickett, 2 English, 510. Where one of several judgment debtors is wholly irresponsible and destitute of property, he need not be made a party to a judgment creditor's bill. Williams v. Hubbard, 1 Mann. (Mich.) 446. ^ Modax V. Jackson, 3 Atk. 406. * Haywood v. Ovey, Mad. & Geld. 113. See Clagett v. Worthiugton, 3 Gill, 83. ' Cowslad V. Cely, Free, in Ch. 83 ; 1 Eq. Ca. Ab. 73, PI. 18 ; 2 Eq. Ca. Ab. 165. PI. 3, S. C. * Page 241. 2G8 OF PARTIES TO A SUIT. to, where it did not appear that the parties were out of the juris- diction, the Court permitted the representatives of one of several trustees, who were dead, to be sued for an account of the receipts and disbursements of his testator, who alone managed the trust, without bringing the representatives of the other trustees before the Court ; and now, under the o2d 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.^ The rule that all the parties liable to a demand should be before the Court was a rule of convenience, to prevent further suits for a contribution, and not a rule of necessity, and therefore might be dispensed with, especially where the parties were many, and the delays might be multiplied and continued ; ^ therefore, where there were a great number of obligors, and many of them were dead, and 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 demand, has also been dispensed with in a variety of cases where the parties were numerous, and the ends of justice could be sufficiently 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 behalf 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 Cullen v. The Duke ^ Kellaway v. Johnson, 5 Beav. 319 •, Perry v. Knott, 5 Beav. 293. 2 Darwent v. Walton, 2 Atk. 510; Anon. 2 Eq. Ca. Ab. 166, PI. 27; Story Eq. Jiir. § 78, 82. ' Lady Cranbourne v. Crispe, Finch, 105 ; 1 Eq. Ca. Ab. 70 ; see 48th Equity Rule of United Stattfs Superior Court. * The like doctrine applies to cases where there are many persons defendants, belonging to voluntary associations, against whom the suit is brought, as to cases where tiie bill is brought by some proprietors as plaintiiTs on behalf of all. Story Eij. PI. 116 et seq.; Wood v. Dummer, 3 Mason, 315-319, 321, 322. See Whit- ney V. Mayo, 15 111. 251. So where the creditors of an insolvent debtor, who hias assigned his property for the payment of his debts, are numerous, and some of them not witliin the Commonwealth, it is not necessary that they should be made parties to a bill in Ec^uity, which concerns his assets ; he and his assignees only need be made parties. Stevenson v. Austin, 3 Metcalf, 474 ; Wakeman v. Gro- ver, 4 Paige, 23. See Dias v. Bouchand, 10 Paige, 445 ; Johnson v. Candage, 31 IMaine, 28 ; Duvall v. Speed, 1 Maryland Ch. Dec. 229. ^ Meriel v. Wymondsold, Hard. 205. OF NECESSARY PARTIES TO A SUIT. 269 of Qucensbcny, where a bill was filed by a tradesman against the committee of a voluntary society called " The Ladies' Club," for money expended and work done under a contract entered into by the defendant, on behalf of themselves and the other subscribers, and it was objected that all the members who had subscribed should be parties, the objection was overruled, and a decree made for the plaintiff.^ The same rule was acted upon by Sir Thomas Plumer, M. R., in a bill for the specific performance of an agreement for a lease, against the treasurer and directors of a Joint-Stock Company es- tablished by Act of Parliament, who had purchased the fee of the premises from the party who had entered into the agreement, although the rest of the proprietors, whose concurrence in the con- veyance 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 plaintiffs entitled to a specific performance, and restraining the treasurer of the com- pany from bringing any action to disturb the plaintiffs in their pos- session.^ From the case of Horsley v. Bell,^ cited in the above case of the Ladies' Club, it appears that in cases of this description the acting members of the committee are all liable, though some of 1 CuUen V. Duke of Queensberry, 1 Bro. C. C. 101, Perkins's ed. and notes; 1 Bro. P. C. 396, S. C. on appeal. =* Meux V. Maltby, 2 Swans. 277. The following cases illustrate the mode of pleading in actions by and against Joint-Stock Companies, and will be useful in framing suits in Equity. Steward v. Dunn, 12 M. & W. 655 ; Davidson v. Coop- er and Brassington, 11 M. & W. 778 ; Smith v. Goldsworthy, 4 Q. B. 430. In a bill against an unincorporated banking company, the members of which are nu- merous, and, in part, unknown, it is not necessary to bring all the stockholders before the Court, before a decree can be made. Mandeville v. Riggs, 2 Peters, 482. See Van Vechten v. Terry, 2 John. Ch. 197 ; Shaw v. Norfolk County R. R. Co. 5 Gray, 170, 171 ; Erickson v. Nesmith, 4 Allen, 233 ; Iladley v. Russell, 40 N. Hamp. 109. ' 2 Swans. 286; and see ibid. 287, and the cases there cited; Thornton v. Hightower, 17 Georgia, 1. But see McBride v. Lindsay, 11 Eng. Law & Eq. 249. * See Ambler, 770, and 1 Bro. C. C. 101, n., where the case is more fully re- ported ; and see Attorney-General v. Brown, 1 Swan. 265. 23* 270 OF PARTIES TO A SUIT. tlicm may not have 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 plaintiff had been employed on their behalf, and it appeared that the orders had been given at different meetings by such of the defendants as were present at these meetings ; but none of the defendants were present at all the meetings, or joined in all the orders, but every one of them were 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 they had respectively signed. Upon this point the Court was of opinion that 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, disapproved ■ the subsequent acts, he might have gone to a future meeting and protested against them. In the preceding cases the decision was made upon the ground that if the plaintiff succeeded in his demands against the individ- uals sued, they would not be injured, as they had a remedy over against the others for a contribution, which, under their own reg- ulations, they might enforce, although the enforcement of it, on the part of the plaintiffs against so numerous a body, would be nearly impossible.^ There are, however, other cases in which suits arc permitted to proceed against a few, of many individuals of a certain class, without bringing the rest before the Coiirt, although 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 r^ Thus, for in- stance, a bill may be brought by a person having a right at Law to * See 48th Equity Rule of United States Supreme Court. * It is not a sufficient objection to a bill by creditors against a corporation and its debtors to compel 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 sued. If necessary, the Court may, at the suggestion of either party that the corporation is insolvent, administer its assets by a receiver, and thus collect all the subscriptions or debts to the corporation. 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 pay the balances due on their several subscriptions to the stock of the company, they 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 IIow. U. S. 380. OF NECESSARY PARTIES TO A SUIT. 271 demand service from the individuals of a large district to his mill, for the purpose of establishing that right. And the Corporation of London has been allowed to exhibit a bill for the purpose of establishing their right to a duty, and to bring only a few persons before the Court, who dealt in those things on which the duty was claimed.! And so bills arc frequently entertained by lords of ma- nors against some of the tenants, on a question of common affect- ing them all ; and a parson may maintain a bill for tithes against a few of the occupiers within 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. The 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 River Company, to which moiety the Crown was entitled under the original charter of that company, but had subsequently granted it to Sir John Myddleton, the original projector, reserving the rent in question. By a variety of mesne assignments, the King's moiety of the profits had become vested in a great number of persons, amounting to 100, 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 corporeal property upon which the plaintiff could distrain, and that the parties were so numerous, and thus liable to so many fluctuations, 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, &c. 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 who 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 consideration whether it was possible to hold that the rule should be applied to an extent destroying the very pur- * City of London v. Perkins, 4 Bro. P. C. 158. * Hardcastle v. Smithson, 3 Atk. 246. * 11 Ves. 429. See Story Eq. PI. § 116 e< seq. ; ante, 269, note. * See 1 Eq. C. Ab. 72. 272 OF PARTIES TO A SUIT. pose for which it was established, viz., that it should prevail where it is actually impracticable to bring all the parties, or where it is attended with inconvenience almost amounting to that, as well as where it can be brought without inconvenience. It must depend upon the circumstances of each case. His lordsliip said, that there were authorities to show that where it is impracticable the rule shall not be pressed ; and in such a case as the one before him, the King's share being split into such a number that is impracticable to go on with a record attempting to bring all parties having in- terest in the subject to be charged, he should hesitate to deter- mine, that a person having a demand upon the whole or every part of the moiety, does not enough if he brings all whom he can bring. His lordship then 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 corn for their own subsistence except at his mill : to bring actions against any indivi- dual for subtracting that service is regarded as perfectly impracti- cable ; therefore, a bill is filed to establish that right, and it is not necessary to bring all the individuals. Why ? Not that it is inex- pedient, but that it is impracticable to bring them all.^ The Court, therefore, has required so many that it can be justly said they will fairly and honestly try the legal right between themselves, all other persons interested, and the plaintiff; and when the legal right is so established at Law, the remedy in Equity is very simple : merely a bill stating that the right has been established in such a proceed- ing, and upon that ground a Court of Equity will give the plaintiff relief against the defendants in the second suit only represented by those in the first. I feel a strong inclination that a decree of the same nature may be made in this case."^ In the above case of Adair v. The New River Company, Lord Eldon laid down as a rule, that wherever a rent-charge 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 * See 48th E([uity Rule of the United States Supreme Court. * See ace. Biscoc v. The Undertakers of the Land Bank, cited in Cuthbert v. Westwood, Vin. Ab. tit. Party, B. 255, PI. 58. See Story Eq. PI. § 116 e« seq. ' All persons, who are affected by a common charge or burden, must be made OF NECESSARY PARTIES TO A SUIT. 273 of charities, which are considered entitled to greater indulgence in matters of pleading and practice than ordinary parties.^ Thus, in Attorney-General v. Shelly,^ it was held, that in the case of a char- ity it is not necessary that all the terre-tenants sliould be brought before the Court, because every part of the land was liable, and the charity ought not to be put to this difficulty. Tlie same ex- ception to the general rule was admitted to the case of Attorney- General V. Wyburgh.^ It is to be observed that the rule laid down by Lord Eldon, in Adair v. The New River Company, applies 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 inconvenience 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 persons 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 parties 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 parties, not only for the purpose of ascertaining and contesting the right or title to it, but also for the purpose, if it should be established, of a contribution towards its discharge among themselves. Story Eq. PI. § 133, 162 ; Coleman v. Barnes, 5 Allen, 374; Skeel v. Spraker, 8 Paige, 182; Myers v. United Guaranty &c. Co. 7 De G. M. & Gor. 112. * Attorney- General v. Jackson, 11 Ves. 367. ^ 1 Salk. 163. ^ 1 P. Wms. 599 ; and see Attorney-General v. Jackson, 11 Ves. 365 ; Story Eq. PI. § 93. * See Story Eq. PL § 120, 130 et seq. 274 OF PARTIES TO A SUIT. and residences of the persons who had executed the deed, and alleging that they were living, and necessary parties to the suit, was allowed.^ With reference to this decision it may be observed, that it is the general and most universal practice of the Court, in suits for establishing charges upon estates, to make all persons entitled to incumbrances subsequent to the plaintiff's charge, parties to the suit. Thus, in the case of a bill to foreclose a mortgage, all persons, who have incumbrances upon the estate which are pos- terior in point of time to the plaintiff's mortgage, must be made defendants ; ^ for although, if there are many incumbrancers, some of whom are not made parties to a bill of foreclosure, the plain- tiff may, notwithstanding, 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, but the justice of it is very clearly shown in the report of the Lord Keeper Finch's judgment in Sherman v. Cox.^ 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 when to be at rest, for if there be any other incumbrances, 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 without remedy, and lose his whole money, when, per- haps, a decree may be huddled up purposely to cheat him, and in the meantime (he being paid his interest) may be lulled asleep and think nothing of it ; whereas, on the other hand, there is no pre- judice but being liable to the trouble of an account, and if so be ' Newton v. Earl En;mont, 5 Sim. 130 ; and see Harrison v. Stewardson, 2 H. 530 ; and Holland v. Baker, 3 H. 68 ; Story Eq. Tl. § 130 e< seq. ^ But see Smith v. Chapman, 4 Conn. 344; Wilson v. Hay ward, 6 Florida, 171. ' Draper v. Lord Clarepdon, 2 Vern. 518. * Loraax v. Hide, 2 Vern. 185 ; Godfrey v. Chadwell, ib. 601 ; 1 Eq. Ca. Ab. 318, Pi. 7, S. C. ; Alorret v. Westerne, 2 Vern. 663 ; 1 Eq. Ca. Ab. 164, PI. 7, S. C; 4 Kent (5th ed.), 184, 185 ; Haines v. Beach, 3 John. Ch. 459 ; Lyon v. Sandfbrd, 5 Conn. 544 ; Renwick v. Macomb, 1 Hopk. 277; Story Eq. PI. § 193, and notes. * 2 Freem. 14. OF NECESSARY PARTIES TO A SUIT. 275 that were stated bona fide between the mortgagor and mortgagee in the suit wherein the decree was obtained, that shall be no more ravelled into, but for so long shall stand untouched."^ Upon the same ground it was that Lord Alvanlcy, M. R., in the Bishop of Winchester v. Beavor,^ ordered a bill of foreclosure to stand over for the purpose of making a judgment creditor a party. From the marginal note to that case, a doubt appears to arise as to whether the Master of the Rolls intended to adopt the general rule, that all incumbrancers must be parties to a bill of foreclos- ure ; but the decision rests upon the rule of practice, which has been stated, and it cannot, after that decision, be doubted that all incumbrancers whose liens appear upon the answer, must be made parties, and if that answer be a sufficient 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 Lomax v. Hide, Godfrey ik 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 appearing upon the answer or not,) parties to his suit.4 The rule which requires all incumbrancers upon the equity of redemption to be brought before the Court in cases of foreclosure, extends to cases in which the subject of the litigation has been sold, or charged subsequently to the date of the plaintiff's 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. Thus, 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 ^ What is here said by the Lord Chancellor on the subject of the account, as well as the case of Needier v. Deeble, 1 Cha. Ca. 299, appears to be at variance ■with the decision in Morret v. Westerne, supra. It seems to be in consequence of the rule above laid down, that the practice prevails of introducing an interrog- atory into a bill of foreclosure, inquiring whether there are any and what incum- brances atfecting the estate besides that of the plaintiff, in order that, if the an- swer states any, the owners of such incumbrances be made parties. Story Eq. PI. § 193, note. ' 3 Yes. 313. » See note 1, above. ' RoUeston v. Morton, 1 Dr. & W. 171. 276 OF PARTIES TO A SUIT. lease, the purchaser was held to be a necessary party .^ And so if a man contracts with another for the purchase of an estate, and 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 subsequent contract, cannot 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 party, because A. is in that case in no man- ner affected by the sub-contract, which his conveyance to B. would rather protect 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 .^ The rule which requires all subsequent incumbrancers to be parties, extends only to cases in which the subsequent charges or incumbrances are specific ; and we 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, although in a bill to foreclose them the cesluis que trust must all be before the Court.* It is also unnecessary that persons having prior mortgages or incumbrances 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 par- » Maule V. Duke of Beaufort, 1 Paiss. 349. 2 V. Walfortl, 4 Russ. 372. Where the owner of land agrees in writing to convey it to another, and afterwards conveys it to a diflferent person, with notice of the prior agreement, the trustee will hold the title as trustee of the first purchaser ; and in a bill by such first purchaser, to enforce specific performance, the second purchaser is a necessary party. Stone v. Buckner, 1 2 Smedes & Marsh. 72. » Copis V. Middleton, 2 Mad. 410. So where, in such a case, it appears that the debtor charged with the fraudulent conveyance is dead, his administrator should be made a party. Coates v. Day, 9 ISIissouri, 315. Whether the debtor himself, if living, should be made a party, see Wright v. Cornelius, 10 Missouri, 174. * Lord Red. 175. * Rose V. Page, 2 Sim. 471 ; Ilogan v. Walker, 14 Howard, 37 ; Wilson v. Bis- coe, 6 Eng. 41. OF NECESSARY PARTIES TO A SUIT. 277 tition, a mortgagee upon the whole estate is not a necessary party, though a mortgagee of one of the undivided portions would bc.^ And so where a bill was brought by a mortgagor against a mortga- gee, praying a sale of the mortgaged estate, persons who had annui- ties prior to the mortgage were held unnecessary parties, and not- withstanding they appeared at the hearing and consented to a sale. Lord Kenyon, M. R., dismissed tlie bill as to them with costs, and said that tlie estate must be sold subject to their annuities.^ It must have been upon the same principle, that the case of Lord HoUis, cited in 3 Cha. Rep. 86, 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 otlier principles which have been laid down. It cannot be supposed that it was meant to be decided that a tliird mortgagee buying in the first mortgage, could by that process acquire the right to foreclose the second, without bringing him before the Court, and giving him an opportunity to redeem. It is right to remark here, that in all cases where a mortgagee is made a party to a suit by the mortgagor or those claiming under him, he is entitled to be redeemed ;3 and that, therefore, unless a second mortgagee or other incumbrancer is prepared to redeem him, he will be an improper party to a suit by such mortgagee or incumbrancer, where the object is merely to foreclose the equity of redemption.* It is also to be observed, that 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 postponed, and not to foreclose him, the bill will be dismissed against him with costs.^ But a bill for redemption cannot be sustained by a party having 1 Swan V. Swan, 8 Pri. 518; Whitton v. Whitton, 38 N. Hamp. 134, 135. But in Harwood v. Kirby, 1 Paige, 469, it was held, that an incumbrancer, upon the share of one tenant in common, cannot be made a party to a bill for partition, and the partition does not affect his rights ; but his incumbrance continues upon the share set off to the party who created the lien. See Sebring v. Mersereau, *1 Hopk. 501. " Delabere v. Norwood, 3 Swan. 144, n. ; Hogan v. Walker, 14 Howard, 37. ^ Drew V. O'Hara, 2 Ball. & Beat. 562, n.; Cholmley v. Countess of Oxford, 2 Atk. 267. * See Story Eq. PI. § 186 e< seq. * Shepherd v. Gwinnett, 3 Swan. 151, n. See Story Eq. PI. § 193, and notes. VOL. I. 24 278 OF PARTIES TO A SUIT. a partial interest in the equity of redemption, in the absence of the other parties interested in it.^ With respect to incumbrancers or purchasers becoming such after a bill has been filed, they will be bound by the decree, and need not be made parties to the suit, whether the plaintiff have no- tice of them or not, for an alienation pending a suit is void, or rather voidable.^ If, therefore, after a bill filed by the first mort- gagee to foreclose, 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 parties, for they will be bound by the suit ; 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 was overruled with costs ; ^ and it is immaterial in the application of this principle, whether the party making the assign- ment pendente lite, occupies the position of plaintiff or defendant, provided his interest is equitable.^ 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 con- veyance of the legal estate.^ If a person, pendente lite, takes an assignment of the interest of one of the parties to the suit, he may if he pleases make himself a party to the suit by supplemental bill, but he cannot by petition pray to' be admitted to take a part as a party defendant,*^ all that 1 Henley v. Stone, 3 Beav. 355. See Story Eq. PI. § 185. In Massachusetts, when, during the pendency of a suit for redemption, it appears that any other person is interested therein, the Court may cause him to be made a party thereto upon such terms as they shall think proper; and may order a summons or a subpcena to be issued and served on him in such manner as they shall direct ; and he shall tliereupon be allowed and recjuired to appear and answer to the suit. Genl. Sts. c. 140, § 31. * Walker v. Smalwood, Amb. 676; Gaskill v. Durdin, 2 Ba. & Be. 167; Moore V. M'Namara, 1 Ba. & Be. 309 ; Gentle v. Ward, 2 Atk. 175 ; Metcalfe v. Pul- vertoft, 2 V. & B. 207. ' Bishop AVinchester v. Paine, 11 Ves. 199. * Eades v. Harris, 1 Y. & C. 230 ; Story Eq. Jur. § 156 ; ante, 194, and note and cases cited to this point of assignments pendente lite ; 2 Story Eq. Jur. § 908. ' Daly V. Kelly, 4 Dow, 435 ; Bishop of Winchester v. Paine, supra; Story Eq. PI. § 351. ' See Lawrence v. Lane, 4 Oilman, 354 ; Cook v. Mancius, 5 John. Ch. 89 ; aute, 194, note. OF NECESSARY PARTIES TO A SUIT. 279 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 necessary to make persons defendants to a suit, not because their rights may be directly affected by the decree, if obtained, but be- cause, in the event of the plaintiff succeeding in his object against the principal defendant, that defendant will thereby acquire a right to call upon him either to reimburse him the whole or part of his demand, or to do some act towards reinstating him in the situation he would have been in but for the success of the plaintiff's claim. In such cases the Court, in order to avoid a multiplicity 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 liabilities 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 the plaintiff to amend by making A. a defendant.'^ And so where an heir at law brought a bill against a widow to compel her to abide by her election, and to take a legacy in lieu of dower, it was held that the personal representative was a necessary party, because in the event of the plaintiff's succeeding she was entitled to satisfaction for her legacy out of her personal estate ; and the plaintiff had leave to amend, by making the executor a party.* Upon the same principle it is, that in suits by specialty creditors for 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 ^ Foster v. Deacon, Mad. & Geld. 59 ; Story Eq. PI. § 342 and notes, § 348 ; Sedgwick v. Cleveland, 7 Paige, 290 ; Deas v. Thorne, 3 John. 544. « Story Eq. PI. § 173 e< seq., § 180 ; Wiser v. Blackley, 1 John. Ch. 437. See Shotwell V. Taliaferro, 25 Miss. 105. In a suit against the representatives of a deceased partner to recover a partnership debt, in which the insolvency of the surviving partner is stated, he is, nevertheless, a proper party as to the other de- fendants, who cannot demur to the bill for misjoinder, on account of the joinder of such survivor. Butts v. Genung, 5 Paige, 254. ^ Greenwood v. Atkinson, 5 Sim. 419 ; see also the case of Green v. Poole, 5 Bro. P. C. 504. * Lesquire v. Lesquire, Rep. t. Finch, 134. ' 3 Atk. 406. 280 OF PARTIES TO A SUIT. estate, being the primary fund for 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 ; so 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 representa- tive to reimburse himself. The Court, therefore, in order to avoid multiplicity of suits, requires both the executor and heir to be be- fore them in order that it may, in the first instance, do complete justice, by decreeing the executor to pay the debt, as far as the personal assets will 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 jointure house should remain to the iises in a settlement, and the jointress brought a bill against the heir to compel him to rebuild and finish the joint- ure house, and to make satisfaction for the damage which she has sustained for want of the use thereof. Lord Talbot allowed a de- murrer on the ground that the executor ought to be a party, be- cause 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 may, however, be brought against the heir, in order to preserve a debt, without making the administrator a party, where it is suggested that the representation is contested in the Ecclesiastical Court ; * and where the heir of an ol)ligor would not administer himself, and had opposed the plain- tiff, who was a principal creditor, in taking out administration, 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, > (ialton V. Hancock, 2 Atk. 434. =* Knight V. Knight, 3 P. Wms. 333 ; Story Eq. Fl § 173 e« seq. See Cosby v. Wicklifie, 7 B. Monroe, 120. ^ Knight V. Knight, 3 P. Wms. 333 ; and see Bresscnden v. Decreets, 2 Ch. Ca. 197. * Plunket V. Penson, 2 Atk. 51 ; Story Eq. PI. § 91. '- D'Aranda v. Whittingham, Mos. 84; Story Eq. PI. § 175, 186, 196. See 4 Kent (10th ed.), 219, 220. OF NECESSARY TARTIES TO A SUIT. 281 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, ho must prove it.^ And it makes no difference if the mortgage be by demise for a term of years, provided the mortgagor was seized in fee; in such case the executor is an unnecessary party, and if made one, the bill against him will be dismissed with costs.^ And where a term of 1000 years had been granted, but conditioned to sink and be extinguished upon payment of an annuity for forty- two years, and at the expiration of the time a bill was brought by the 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, however, the mortgagee mixes together his character of mortgagee and general creditor, and seeks relief beyond that to whicli his position of mortgagee by itself would strictly entitle him, then it would appear that the personal representative of the mort- ' Duncombe v. Hansley, 3 P. Wms. 333, notis ; Fell v. Brown, 2 Bro. C. C. 279 ; StoryEq. PI. § 196, 200. ^ Bradshaw v. Outram, 13 Ves. 234. If the mortgage was of a chattel inter- est, of course the executor, and not the heir, would be the proper party ; and if freehold and leasehold estates are both comprised in the same mortgage, both the heir and executor will be necessary parties to a bill of foreclosure. Robins v. Hodgson, Rolls, 15 Feb. 1794. A mortgagee, who has entered for condition broken, may have an action on the bond, and he will recover the difference be- tween the value of the land and the amount of the principal and interest on the bond. Amory v. Fairbanks, 3 Mass. 562; Newall r. Wright. 3 Mass. 150; 4 Kent (10th ed.), 218; Tooke v. Hartley, 2 Bro. C. C. (Perkins's ed.) 126, 127, and notes; Perry u. Barker, 8 Sumner's Vesey, 527, Perkins's note (a), and cases cited; Hatch v. White, 2 Gallis. 152; Globe Ins. Co. v. Lansing, 5 Cowen, 380; Omaly ?;. Owen, 3 Mason, 474; Lansing v. Goelet, 9 Cowen, 346; Lowell v. Leland, 3 Vermont, 581 ; Galium v. Emanuel, 1 Ala. N. S. 23. The value of the land may be ascertained either by a sale, or by estimate, and proof of the value of the property mortgaged. See 4 Kent (10th ed.), 215; Tooke v. Hart- ley, 2 Bro. C. C. (Perkins's ed.), 126, 127, and notes; Hodge v. Holmes, 10 Pick. 380, 381 ; Amory v. Fairbanks, 3 Mass. 564; Newall v. Wright, 3 Mass. 150; Briggs v. Richmond, 10 Pick. 396 ; West v. Chamberlain, 8 Pick. 336 ; Hart V, Ten Eyck, 2 John. Ch. 62; Wiley v. Angel, 1 Clarke, 217; Suffern v. John- son, 1 Paige, 450 ; Downing v. Palmateer, 1 Monroe, 66 ; M'Gee v. Davie, 4 J. J. Marsh. 70 ; Bank of Ogdensburg v. Arnold, 5 Paige, 38. ^ Bamfield v. Vaughan, Rept. t. Finch, 104. 24* 282 OF PARTIES TO A SUIT. gagor must be a party to the bill, and there must be an account of the personal estate. It may here be observed, that it does not seem to be definitely settled whether, when the mortgaged estate is insufficient to satisfy the amount charged upon it, and the per- sonalty is also inadequate to pay all the debts, the mortgagee is 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.^ In suits of this description, the Court will decree not a foreclosure but a sale of estate ,2 to which a mortgagee is not ordinarily entitled upon a bill filed by him without 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 representa- tive must also, as the party entitled to the money, be made a party to the suit,*^ because, although the mortgagee upon paying the ' Mason v. Bogg, 2 M. & C. 443 ; Greenwood v. Taylor, 1 R. & M. 185 ; Green- wood V. Firth, 2 Hare, 241, n. ; Tipping v. Power, 1 Hare, 405 ; Marshall v. Ma- cartney, 3 Dr. & W. 232; De.xter i'. Arnold, 1 Sumner, 109. 2 Daniell v. Skipwith, 2 Bro, C. C. 155; see also Christopher v. Sparke, 2 J. & W. 220 ; 2 Story Eq. Jur. § 1025, 1026, 1027; 4 Kent (10th ed.), 166, 167, 215. It is not a matter of course, on a bill for foreclosure and sale, to order the whole of the mortgaged premises to be sold. Under certain circumstances no more will be sold than enough to pay the debt and costs. Delabigarre v. Bush, 2 John. 490 ; Suffern v. Johnson, 1 Paige, 450 ; BrinkerhofF v. Thalhimer, 2 John. Ch. 486. The premises may be sold, either together or in parcels, as will be best calculated to produce the highest sum. Suffern v. Johnson, 1 Paige, 450; Campbell v. Macomb, 4 John. Ch. 534. ^ The cases in which a mortgagee may have a sale instead of a foreclosure, are — 1, where the estate is deficient to pay the incumbrance; 2, where the mortgage is of a dry reversion ; 3, where the mortgagee dies and the equity of redemption descends upon an infant ; 4, where the mortgage is of an advowson ; 5, where the mortgagor becomes a bankrupt ; and 6, where a mortgage is of an estate in Ireland. See 2 Powell on Mortgages, by Coventry, 1016, n. T. 2 Story Eq. Jur. § 1026. It is now enacted by 15 & 16 Vict. c. 86, § 48, that " it shall be lawful for the Court in any suit for the foreclosure of the equity of redemption in any 'mortgaged property, upon the request of the mortgagee, or of any subsequent incumbrancer, or of the mortgagor, or any person claiming under them respectively, to direct a sale (see Hurst v. Hurst, 16 Beav. 372; Wayn v. Lewis, 1 Dru. 487,) of such property, instead of a foreclosure of such equity of redemption, on sucli terms as the Court may think fit to direct, and, if the Court should so think fit, without previously determining the priorities of incumbrances, or giving the usual or any time to redeem." This section also provides security for parties whose interests may be affected in certain cases. * De.xter v. Arnold, 1 Sumner, 109. OF NECESSARY PARTIES TO A SUIT. 283 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 comi)letion of the contract, the vendor has a right to file a bill against his personal representative for payment of the purchase-money ; but if he does he must make the heir at law a party, because the Ifeir is the per- son entitled to the estate. And for the same reason where the vendee, after the cause was at issue, died, having devised the estate which was the subject of the suit to infant children, and the plaintiff 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.i Upon the same principle, 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- ance, a demurrer on the ground that the executor of the ancestor was not a party, was overruled ; because the purchase-money hav- ing been paid, it was quite clear, that no decree could have been made against the personal representative.^ Upon the same principle formerly, the Courts in the case of sureties, and of joint obligors in a bond, compelled all who were bound, or their representatives, to be before the Court, in order to * Townsend v. Champernowne, 9 Pri. 130. See Cox v. Sprode, 2 Bibb, 276; Fisher v. Kay, 2 Bibb, 434 ; Huston v. M'Clarty, 3 Litt. 274 ; Morgan v. Morgan, 2 Wheat. 90; Story Eq. PI. § 160, 177; Champion v. Brown, 6 John. Ch. 402. To a bill to enforce specific performance of a contract for the sale of land made by a person who has deceased, all the heirs of such deceased person should be made parties. Duncan v. Wickliffe, 4 Scam. 452. " See Story Eq. PI. § 177; Cocke r. Evans, 9 Yerger, 287. Upon a bill for the rescission of a contract for land, for defect of title in the vendor, the heirs of the vendee must be naade parties. Huston v. Noble, 4 J. J. Marsh. 136. See Harding v. Handy, 11 Wheat. 104. * Astley V. Fountain, Rep. t. Finch, 4. 284 OF PARTIES TO A SUIT. avoid the multiplicity of suits which would be occasioned if one or more were to be sued without the others, and left 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. Of Objections for ivant of Parties. Having endeavored in the preceding sections of this chapter to point out the parties who ought to be brought before the Court by the plaintiff, 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 advan- tage of by the defendant, and how the defect arising from such omission is to be obviated or remedied by the plaintiff.^ 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 copy of the bill, they may be bound by the proceedings in the cause ;^ but ' See ante, p. 316. ^ See ante, 278, note 1. " Story Eq. PI. § 44 ; 1 Smith, Ch. Pr. (2d Am. ed.) 86 ; Walker v. Hallett, 1 Ala. (N. S.) 379; Lucas v. Bank of Darien, 2 Stewart, 280; Lyle v. Bradford, 7 Monroe, 113; Huston v. McClarty, 3 Litt. 274; De Wolf y. Mallett, 3 Dana, 214; Taylor v. Bate, 4 Monroe, 267. In New York parties may be treated as defendants, by a clear statement in the bill to that effect, without praying the subpoena. The reason given is that, in that State, the subpoena is issued of course, and that a formal prayer is unnecessary to entitle the plaintiff to process. Brasher v. Cortlandt, 2 John. Ch. 245 ; Elmendorf v. Delancy, 1 Hopk. 555 ; Verplanck v. Mercant. Ins. Co. 2 Paige, 438. But unless the plaintiff, either in the prayer for process or by allegation in the bill, designates those who are made defendants, the omission is fatal ; Elmendorf v. Delancy, Hopk. 555 ; and they only arc parties defendant against whom process is prayed, or who are specifically named and described as defendants. Talmage v. Pell, 9 Paige, 410 ; Lucas v. Bank of Darien, 2 Stewart, 280; Green v. McKenney, 6 J. J. Marsh. 193; Moore v. Anderson, 1 Ired. Ch. 411 ; Harris v. Carter, 3 Stewart, 233. Where a minor, a necessary party, was not named in the bill, he cannot be considered a OF OBJECTIONS FOR WANT OF PARTIES. 285 the mere naming a person as a defendant, does not make him a partj.^ A defect of parties in a suit may be taken advantage of either by demurrer, plea, or answer .^ defendant, although an answer is filed for him by his guardian ad litem. Dixon V. Donaldson, 6 J. J. Marsh. 575. ^ Windsor v. Windsor, 2 Dick. 707 ; Carey v. Hillhouse, 5 Georgia, 251 ; Cas- siday v. McDaniel, 8 B. Monroe, 519. To make him such, process must be issued and served upon him. Bond v. Hendricks, 1 A. K. Marsh. 594 ; White V. Park, 5 J. J. Marsh. 603; Estill v. Clay, 2 A. K. Marsh. 497; Huston v. Mc- Clarty, 3 Litt. 274; Archibald v. Means, 5 Iredell Eq. 230. " See Clark v. Long, 4 Rand, 451 ; Story Eq. PI. § 236. Where the defect of want of parties is formal, or technical merely, the objection must be made by demurrer, plea, or answer. Postlethwaite v. Howes, 3 Clarke (Iowa), 365; Story V. Livingston, 13 Peters, 359 ; Sayles v. Tibbitts, 5 Rhode Isl. 79 ; Kean v. John- son, 1 Stockt. (N. J.), 401 ; Chapman v. Hamilton, 19 Alabama, 121 ; Smith v. Mitchell, 6 Georgia, 458. So where a party omits to object, either by demurrer, plea, or answer, for want of parties who are only necessary to protect himself, the court may refuse to sustain the objection at the -hearing. Dias v. Bouchard, 10 Paige, 445; Lorillard v. Coster, 5 Paige, 172; Lainhart v. Reilly, 3 Desaus. 570; Gilbert v. Sutliff, 3 Ohio (N. S.), 129 ; McMaken v. McMaken, 18 Alabama, 576. 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 hear- ing, 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 plaintiff to bring such necessary parties before the Court. Shaver v. Bralnard, 29 Barbour (N. Y.), 25 ; Her- rlngton v. Hubbard, 1 Scam. 569 ; Clark v. Long, 4 Rand. 451 ; Hussey v. Dole, 24 Maine, 20; O'Brien v. Heeney, 2 Edw. Ch. 242; Cannon v. Norton, 14 Ver- mont, 178; Miller v. M'Crea, 7 Paige, 452; Felch v. Hooper, 20 Maine, 159; Nash V. Smith, 6 Conn. 421 ; Bugbee v. Sargent, 23 Maine, 269 ; Lord v. Under- dunck, 1 Sandf Ch. 146 ; Postlethwaite v. Howes, 3 Clarke (Iowa), 365 ; Pren- tice V. Kimball, 19 111. 320; Morse v. Machlas Water Power Co. 42 Maine, 119; Per Wayne J. In Lewis v. Darling, 16 Howard, 1, 8, 9 ; Winnlplseogee Lake Company v. Worster, 9 Foster (N. H.), 433 ; Miller v. Whittier, 33 Maine, 521 ; Woodward v. Wood, 19 Alabama, 213. This course will be adopted where It Is found that an effectual decree cannot be made, binding upon all persons in Interest, for want of proper parties, although the objection has not been raised by either party. O'Brien v. Heeney, 2 Edw. Ch. 242; Herrington v. IJubbard, 1 Scam. 569; McMaken v. McMaken, 18 Ala- bama, 576; Goodman v. Barbour, 16 Alabama, 625. If after objection is made for want of necessary parties, the plaintiff neglects or refuses to bring them be- fore the Court, the bill will be dismissed. Singleton v. Gayle, 8 Porter, 270; Hunt V. Wickllffe, 2 Porter, 201 ; Bailey v. Myrick, 36 Maine, 50, 54. But such dismissal should be without prejudice. Huston v. M'Clarty, 3 Litt. 274; Royce V. Tarrant, 6 J. J. Marsh. 567; Caldwell v. Hawkins, 1 Litt. 212; Hackwith v. 286 OF PARTIES TO A SUIT. Whenever the deficiency of parties appears on the face of a bill, the want of proper parties is a cause of demurrer.^ There appears to be some doubt whether a demurrer of this nature can be partial, and whetlier it must not extend to the whole bill. And in the case of The East India Company v. Coles,''^ Lord Loughborough was inclined to think, that there could not be a partial demurrer for want of parties ; but upon Mr. Mitford mentioning some cases,^ wherein such partial demurrers had been allowed, the case was ordered to stand over to the next day of demurrers ; in the mean time, however, the plaintiff's counsel, thinking it better for his client, amended the bill. It is to be observed, that if a sufficient reason for not bringing a necessary party before the Court is suggested by the bill, as, if a personal representative is required, and the representation is charged to be in litigation in the Ecclesiastical Court,^ or if the bill seeks a discovery of the persons interested in the matter in Damron, 1 Monroe, 239; Van Epps v. Van Deusen, 4 Paige, 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 necessary parties, refuse to appear, and the Court has no power to reach them by its process, and compel them to become parties. Picquet v. Swan, 5 Mason C. C. 561 ; but without preju- dice, lb. A motion to be admitted as a defendant to a suit is irregular. Harrison v. Morton, 4 Hen. & Munf. 483. But persons whose interest is apparent, if not made parties, may be allowed to bring forward their claim bj' petition. Birdsong V. Birdsong, 2 Head (Tenn.), 289 ; Morris v. Barclay, 2 J. J. Marsh. 374 ; Smith V. Britten, 2 P. & H. (Va.) 124; Phillips v. Wesson, 16 Georgia, 137. ^ Mitchell V. Lenox, 2 Paige, 281 ; Robinson v. Smith, 3 ib. 222 ; Crane v. Dem- ing, 7 Conn. 387; Story Eq, PI. § 541 ; White v. Curtis, 2 Gray, 472; Neely v. Anderson, 2 Strobh. Eq. 262. And in such case, if the defect is merely formal the objection should be taken by demurrer. Chapman v. Hamilton, 19 Alabama, 121 ; Allen v. Turner, 11 Gray, 436. 2 3 Swan. 142, n. ^ Astley V. Fountain, Finch, 4. Attwood v. Hawkins, Finch, 113; Bressenden V. Decreets, 2 Cha. Ca. 197. * In White v. Curtis, 2 Gray, 467, it was held that the omission to join, as a defendant in a bill, the administrator of one whose death is alleged in the bill, cannot be taken advantage of by demurrer, when it does not appear by the bill that there is any such administrator. It docs not appear to have been regarded, in this case, as necessary, that any reason should be stated why the administrator was not appointed. But the Court stated that the necessity or propriety of introducing the administrator was not apparent from the averments in the bUl. OF OBJECTIONS FOR WANT OF PARTIES. 287 question, for the purpose of making them parties, and charges that they arc unknown to the plaintiff, a demurrer for want of the necessary parties will not hold.^ Upon the same principle, 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 plaintiff had applied to the Prerogative Court for administration, but having been op- posed by the defendant, was denied administration, because ho could not prove that the intestate had left hoyia notahilia; 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 was not before the Court, was overruled.^ It is said that a demurrer for want of parties must show who are the proper parties ; not indeed by name, for that might be impos- sible ; ^ 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 cor- rectness of this rule, in consequence of an observation by Lord Elden in Pyle v. Price.^ His Lordship is there reported to have said, " that beside the objection which had been mentioned at the bar, to the rule which required the party to be stated, it might appear that the plaintiff knows the party," and then to have ob- served, " perhaps 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 1 Lord Red. 180; Towle v. Pierce, 12 Metcalf, 329. See Gilman v. Cairnes, 1 Breese, 124; Coe v. Beckwith, 31 Barbour (N. Y.), 339; Davis v. Hooper, 33 Miss. (4 George,) 173 ; De Wolf v. De Wolf, 4 Rhode Isl. 450; Bailey v. Mor- gan, 13 Texas, 342. ^ D'Aranda v. Whittingham, Mos. 84. » Tourton v. Flower, 3 P. Wms. 369. * Lord Red. 181; Attorney-General v. Jackson, 11 Ves. 369; Story Eq. PI. § 541 and notes ; McElwain v. Willis, 3 Paige, 505 ; Lindley v. Cravens, 2 Blackf. 426 ; Jameson v. Deshields, 3 Grattan, 4 ; Chapman r. Hamilton, 19 Alabama, 121 ; Hightower v. Mustian, 8 Georgia, 506 ; Neely v. Anderson, 2 Strobh. Eq. 262. See Harrison v. Rowan, 4 Wash. C. C. 202 ; Arundel v. Blackwell, Dev. Eq. 354; Greenleafu. Queen, 1 Peters, 138. * 6 Ves. 781 ; and see Attorney-General v. Corporation of Poole, 4 M. & C. 32. 288 OF PARTIES TO A SUIT. 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 description or character of the party required, in order to enable him to amend his bill, without putting him to the expense of bringing his demurer on for argument, which he might otherwise be obliged to do, in order to ascertain who the party required by the defendant is. Where a demurrer for want of parties is allowed, the cause is not considered so much out of Court but that the plaintiff may afterwards have leave to amend, by bringing the necessary parties before the Court.^ And where the demurrer has been ore terms, such leave will 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 costs of the demurrer.^ Upon the allowance, however, of a demurrer for want of parties, the plaintiff is not entitled as of course to an order for leave to amend ; where it is said tliat a bill is never dismissed for 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 au 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 tlie cause stand over that the plaintiff may add parties to such a record.'^ If the defect of parties is not apparent upon the face of the bill, * Bressenden v. Decreets, ubi supra. See also Lloyd v. Loaring, 6 Ves. 773 ; Story Eq. PI. § 543 and note, in which is a form of demurrer for want of neces- sary ^arties. Allen v. Turner, 11 Gray, 43C. * Newton v. Lord Egmont, 4 Sim. 585. » But see ante, 285, 286, note to this point, and Nash v. Smith, 6 Conn. 422. The bill is sometimes dismissed for want of proper parties, but witliout prejudice to the plaintiff's right to bring a new suit. Miller v. IM'Crea, 7 Paige, 452 ; Huston V. M'Clarty, 3 Litt. 274; Steele v. Lewis, 1 Monroe, 49; Royse v. Terrant, 6 J. J. Marsh. 567 ; Story Eq. PI. § 541 ; post, 293 to 295, note; ante, note to pp. 285, 286. * Tyler v. Bell, 2 M. & C. 110. See Story Eq. PI. § 541, and note ; Russell v. Clarke, 7 Cranch, G9, 90. OF objp:ctions for want of parties. 289 the defect may be brought before the Court by plea, which must aver the matter necessary to sliow it.^ A plea for want of proper parties is a plea in bar, and goes to the whole bill, as well to the discovery as to the relief, where relief is prayed,^ though the want of parties is no objection to a bjU for discovery merely.'^ Where 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 Ec- clesiastical 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 pleading 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- 1 Lord Red. 280 ; 1 Vern. 110 ; 2 Atk. 51 ; Robinson v. Smith, 3 Paige, 222 ; Story Eq. PL § 236 ; Gamble v. Johnson, 9 Missouri, 605. - Plunkett V. Penson, 2 Atk. 51 ; Hamm v. Stevens, 1 Vern. 110. ' Sangosa v. East India Company, 2 Eq. Ca. Ab. 170, PI. 28. * Gihnan r. Cairns, Breese, 124. ^ Plunkett V. Penson, 2 Atk. 51 : Carey v. Hoxey, 11 Georgia, 645. But in order to make the pendency of litigation, touching the representation of a de- ceased party, a good excuse, the Court must be fully advised of the nature and condition of tin- litigation, by the allegations in the bill or by proofs. Carey v. Hoxey, supra. See Martin v. McBryde, 3 Ired. Ch. 531. ° Cowslad V. Cely, Prec. Ch. 83 ; Darwent v. Walton, 2 Atk. 510 ; Milligan v. Milledge, 3 Cranch, 220; Martin v. McBryde, 3 Ired. Ch. 531; Parkman v. Aicardi, 34 Alabama, 393 ; Mallow v. Hinde, 12 Wheat. 193 ; Spivey v. Jenkins, 1 Ired. Ch. 126 ; Ashmead v. Colby, 26 Conn. 287 ; Carey v. Hoxey, 11 Georgia, 645 ; West v. Smith, 8 Howard (U. S.), 409. See Moodie v. Baimister, 19 Eng. Law & Eq. 81. But the Court will not proceed to take an account in the ab- sence of a necessary party, though he is out of the jurisdiction. Hogan v. Walk- er, 14 Howard, 46 ; Wilson v. City Bank, 3 Sumner, 422 ; Greene v. Sisson, 2 Curtis C. C. 176, 177. See Shields v. Barrow, 17 Howard, 130; Story Eq. PI. § 78 ; Towle v. Pierce, 12 Metcalf, 332. ' Bowyer v. Covert, 1 Vern. 95. « Lord Red. 281. VOL. I. 25 290 OF PARTIES TO A SUIT. 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 plaintiff is now, under the o9th Order, of August, 1841, within fourteen days after answer filed, at liberty to set down the cause for argument upon that objection alone. If he does so, the objection is argued, the 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 add- ing" 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 favor, 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 supplemental 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 plain- tiff 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 be set down within this period as a matter of course, but that afterwards the leave of the Court may be obtained.* Pre- viously to the Orders of 1841, when an objection for want of par- ties was taken at the hearing, the rule with respect to costs was, that if the objection for want of parties had been taken by the de- fendant'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 paying to the defendant the costs of the day ; but if the objection depended upon a fact 1 Lord Red. 281 ; ante, 285, 286, note ; Harrison v. Rowan, 4 Wash. C. C. 202; Story Eq. Tl- § 885, 88G, 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. " Bradstock v. Whatley, 6 Beav. 451. » 39th Order, Aug. 1841, & S. C. ; Haskell v. Hilton, 30 Maine, 421. ♦ Cockburn v. Thompson, 13 Sim. 188. OF OBJECTIONS FOR WANT OF PARTIES. 291 within the defendant's knowledge, and was not raised by his an- swer, the order would be made without payment of costs of the The recent Orders do not appear directly to have affected this rule concerning costs in such cases, but the 40th Order, of August, 1841, provides, that if the defendant shall at the hearing of a cause object that a suit is defective for want of parties, not hav- ing by plea or answer taken the objection, and therein specified by name or description 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 where the rights of the absent party can be pro- tected 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 plaintiff to amend by adding parties, 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 plaintiffs should be at liberty to amend their bill by adding parties, as they should be advised, or by show- » Mitchell V. Bailey, 3 Mad. 61 ; Furze i'. Sharwood, 5 M. & C. 96 ; Attorney- General V. Hill, 3 M. & C. 247; Mason v. Franklin, Y. & C. 242; Perkin «. Bradley, 1 H. 219, where notice of disclaimer had been given to the objecting defendant; as to the amount of costs, see 35th Ord. 1828. See Colt v. Lasnier, 3 Cowen, 320 ; Story Eq. PI. § 541. When the objection is taken by demurrer, and sustained, the defendant will be entitled to his costs ; but when it is taken at the hearing only, the defendant is usually not entitled to his costs. Story Eq. PI. 541. 2 Story Eq. PI. § 236, note. The same rule has been adopted by the Supreme Court of the United States, 53d Eciuity Rule of S. C. of U. States, January Term, 1842. See Clymer 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 ; AVilson v. City Bank, 3 Sum- ner, 422 ; Hogan v. Walker, 14 Howard, 36 ; McCall v. Yard, 1 Stockt. (N. J.) 358. * Kimber v. Ensworth, 1 H. 293 ; see also May v. Selby, 1 Y. & C. 237 ; and Faulkner v. Daniell, 3 H. 199. * Deniston v. Little, 2 Sch. & Lef 11 n. 292 OF PARTIES TO A SUIT. ing why they were unable to bring the proper parties before the Court.i The proper time for taking an objection for want of parties is \ipon 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.^ The objection for want of parties ought to proceed from a de- fendant, for it has been decided that the plaintiff bringing his cause to a hearing without proper parties, cannot put it off without the consent of the defendant.* Cases of exception may 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 plaintiff may at the hearing obviate an objection for want of a particular party, by waiving the relief he is entitled to against such party ; ^ and where the evident consequence of the establishment of the rights asserted by the bill, might be the giving to the plain- tiff a claim against persons who are not parties, the plaintiff by 1 Milligan V. Mitchell, 1 M. & C. 511 ; Story Eq. PI. § 541, note. * Jones V. Jones, 3 Atk. Ill ; Alderson v. Harris, 12 Alabama, 580. * Jones V. Jones, 3 Atk. 111. See Felch v. Hooper, 20 Maine, 163, 164; Hus- sey V. Dale,. 24 Maine, 20 ; New London Bank v. Lee, 11 Conn. 112 ; Winnipi- seogee Lake Co. v. Worcester, 9 Foster (N. H.), 433 ; Clark v. Long, 4 Rand. 451 ; Miller v. M'Can, 7 Paige, 452 ; Cabeen v. Gordon, 1 Hill Ch. 53 ; R. Owing's case, 1 Bland. 292 ; Story Eq. PL § 541 ; Robinson v. Smith, 3 Paige, 222 ; ]\Iitchell v. Lenox, 2 Paige, 281 ; Evans v. Chism, 18 Maine, 223 ; Clifton V. Haig, 4 Desaus. 331. .But in Ferguson v. Fisk, 28 Conn. 511, it was held, that no objection for want of parties could be made after a hearing on the merits, either before the Court or its committee. 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. * Innes v. Jackson, 16 Ves. 356 ; for the circumstances under which the de- fendant must support his objection by evidence, see Campbell v. Dickens, 4 Y. & C. 17, Exch. R. ; Barker v. Railton, 11 Law Jour. N. S. 372. The objection of misjoinder of parties, as defendants in a bill, is a mere personal privilege, and consequently those only can demur for that cause who are improperly joined. Gartland v. Nunn, 6 Eng. 720. ^ limes V. Jackson, supra. See Thompson v. Peeble, 6 Dana, 392. * Pawlet V. The Bishop of Lincoln, 2 Atk. 296. OF OBJECTIONS FOR WANT OF PARTIES. 293 waiving that claim may avoid the necessity of making those per- sons parties.^ This, however, cannot be done to the prejudice of others.^ In some cases the defect of parties has been cured at the hearing by the undertaking of the plaintiff to give full effect to the utmost rights which the absent party could have claimed, those 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 exe- cuted 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, which benefit would be lost if the release was set aside, the Master of the Rolls held, that the trustees of the settlement were necessary parties, in order to assert the right of the children, but upon the plaintiff's counsel undertaking that all the moneys to be recovered by the suit should be settled upon the same trusts for the benefit of the plaintiff's wife and children, his Honor permitted the cause to proceed without the trustees, and ultimately, upon the undertak- ing of the plaintiff, declared that tlie plaintiffs were not bound by the release.^ As a decree made in the absence of proper parties may be re- versed, and at all events will not bind those who are absent, or those claiming under them ; * great care should be taken to have * Lord Red. 180; Story Eq. PI, § 127, 129, 213, 214, 228. So in some cases, when all the parties are not before the Court, the merits, as between those parties who are before the Court, may be decided at their request. See AVickliife v. Clay, 1 Dana, 103. " Lord Red. 180; Dart v. Palmer, 1 Barb. Ch. 92. If the case made by the bill, entitles the plaintiff to particular relief against the defendant, and would also entitle him to further relief were the necessary parties before the Court, and the prayer of the bill specifically asks for the more extended relief, to which the plaintifT is not entitled in consequence of the defect of parties, the defendant may demur to the whole bill for want of parties. Dart v. Palmer, 1 Barb. Ch. 92. A Court can make no decree in an Equity suit, in which the interests of a person not a party are so involved, that complete justice cannot be done between the parties to the suit, without affecting the rights of the person, not a party, whose Interests are so involved. Shields v. Barrow, 17 Howard, 130. ^ Harvey v. Cooke, 4 Russ. 35 ; and see Walker v. Jeffreys, 1 Hare, 296, and 341 ; Story Eq. PI. § 220. * Prac. Reg. 299 ; Story Eq. PI. § 236 ; Whiting v. Bank of U. S., 13 Peters, 14; Spring v. Jenkins, 1 Ired. Eq. 128; Shields v. Barrow, 17 Howard, 130; Stat. U. S. Feb. 28, 1839, 5 Stats, at Large, 321 ; 47th Equity Rule of the Su- preme Court of the United States. 25* 294 OF PARTIES TO A SUIT. the necessary parties before the Court at the hearing,^ 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, and the Court will suffer the plaintitf to amend his bill by adding par- ties at any time before the examination of witnesses has taken place.^ ^ For cases in which the defect of parties has been remedied by the voluntary appearance at the hearing, see ante, Joy v. AVirtz, 1 Wash. C. C. 517. * A person in interest, who has never appeared or been cited to appear, may, upon motion, and without a supplemental bill, at the hearing upon bill, answer and proof, be summoned in and made a party. Miller v. Whittier, 33 INIaine, 521. Where new parties are added in a case after the testimony is taken, the cause should be heard on bill and answer as to such new defendants. Smith v. Baldwin, 4 Har. & John. 331. In respect to amendments as to parties, the Courts are more liberal than as to other amendments. Courts of Equity will not dismiss bills absolutely, for want of proper parties, the plaintiff showing enough to give color to his claim for relief ao-ainst the parties not before the Court. In such case the Court may properly give the plaintiff leave to amend, and make the proper parties. Allen v. Smith, 1 Leigh, 331 ; Story Eq. PI. § 236 ; Hutchinson v. Reed, 1 Hoff. Ch. R. 316 ; Hayden y, Marmaduke, 19 Mis. (Bennett) 403; Franklin v. Franklin, 2 Swan (Tenn.), 521. 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 the allowance of the plea or demurrer, unless the plaintiff takes issue on the plea, or obtains leave to amend on the usual terms. Van Epps v. Van Deusen, 4 Paige, 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 hearin"-, the bill should not be dismissed, wliere the defect can be remedied by an amendment or a supplemental bill, provided the plaintiff elects to bring the proper parties before the Court within a reasonable time. lb. p. 76 ; Harder v. Harder, 2 Sandf. Ch. 17 ; Peterson v. Poignard, 6 B. Monroe, 570. The only exception to the rule arises where it appears that the necessary parties have been left out of the bill by the fraud or bad faith of the plaintiff. Van Epps v. Van Deusen, SM/jra. See Rowland v. Garman, 1 J. J. Marsh. 7G ; Parbcrry v. Coram, 3 Bibb, 108 ; Cabeen v. Gordon, 1 Hill (S. C), Ch. 53 ; Hutchinson v. Reed, 1 Hoff. Ch. R. 320; CUfton v. Haig, 4 Desaus. 331 ; New London Bank v. Lee, 11 Conn. 112; Malin v. Malin, 2 John. Ch. 338; Nash v. Smith, 6 Conn. 422; Rogers v. Rogers, 1 Hopkins, 515; S. C. 1 Paige, 188; S. C. 2 Paige, 467; Bland v. Wyatt, 1 Hen. & Munf. 43 ; Sears v. Powell, 5 John. Ch. 259 ; Bowen V. Idley, 6 Paige, 46 ; Ensworth v. Lambert, 4 John. Ch. 605 ; Smith v. Turren- tine, 8 Ired. Eq. 185. If the bill is dismissed for want of the proper parties, it should not, where it has equity, be dismissed absolutely, but without prejudice to the right of the plain- tiff in any future litigation. See Craig v. Barbour, 2 J. J. Marsh. 220 ; Thomp- OF OBJECTIONS FOR WANT OF PARTIES. 295 An order to amend by adding parties allows of the introduction of apt words to charge them ; but it seems that the plaintiff, if it is necessary, should apply for liberty to add allegation^ applica])le to the case of the proposed new parties, as this is not included in the liberty to amend by adding parties. ^ A plaintiff is not obliged, in adding parties by amendment, to make them defendants, he may, if he pleases, apply for leave to make them co-plaintiffs, and he has been permitted to do so by special motion after tlie 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 discretionary in tlie Court.3 son V. Clay, 3 Monroe, 361 ; Van Epps v. Van Deusen, 4 Paige, 76 ; Miller v. M'Can, 7 Paige, 452 ; Huston v. M'Clarty, 3 Litt. 274 ; Steele v. Lewis, 1 Mon- roe, 49 ; Story Eq. PI. § 236 ; West v. Randall, 2 Mason, 181 ; Mechanics' Bank of Alexandria v. Setons, 1 Peters, 306 ; Hunt v. Wickliflfe, 8 Peters, 215 ; Patrick V. White, 6 B. Monroe, 330 ; ante, 285, 286, note ; Jameson v. Deshields, 3 Grat- tan, 4. But if the plaintiff shows no right to relief against the parties before the Court, and his bill is dismissed, the appellate Court will not reverse the decree to enable him to introduce new parties, and thereby make a new case upon the merits. Jameson v. Deshields, 3 Grattan, 4. Under the present English prac- tice, limiting the number of parties necessary to a decree. Rule 7 provides, that in the cases falling within the regulations of the six preceding rules, " the Court, if it shall see fit, may require any other person or persons to be made a party or parties to the suit, and may, if it shall see fit, give the conduct of the suit to such person as it may deem proper, and may make such order, in any particular case,. as it may deem just for placing the defendant on the record on the same footing, in regard to costs, as other parties having a common interest with him in the matters in question. 1 Hand. 77. Palk v. Lord Clinton, 12 Ves. 48 ; Mason v. Franklin, 1 Y. & C. 242. When the plaintiflT is allowed to amend on account of the want of proper parties, he possesses the incidental right to amend by charging all such matters, as constitute the Equity of his case, against the new parties. Stephens v. Frost, 2 Younge & Coll. 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, &c., as an original defendant. Hoxey v. Carey, 12 Georgia, 534; Van Leonai-d v. Stocks, 12 Georgia, 546. See McDougald v. Dougherty, 14 Georgia, 674. =* Hiehens v. Congreve, 1 Sim. 500. See Milligan v. Mitchell, 1 Mylne & Craig, 433, 442, 443; Miller r. "M'Can, 7 Paige, 451. ' The practice relating to the addition of parties by amendment is treated of in the next chapter, in the section concerning " The Amending of Bills." 296 OF PARTIES TO A SUIT. Section IV. Of the Joinder of Parties who have no Interest in the Suit. It has been before stated, that no one should be made a party to a suit against wliom, if brought to a hearing, there can be no decree ; ^ thus, an agent for the purchase of an estate, is not a necessary party to a bill'-^ against his employer for a specific per- formance, although he signed the memorandum for the purchase in his own name,^ and so a residuary legatee need not be made a party 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 bank- rupt or insolvent in respect of the property vested in them, under the bankruptcy or insolvency, the bankrupt or insolvent should not be parties ; * and in a suit to ascertain the property in a certain share litigated between two claimants, the banking 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 ^ 3 P. Wms. 311, n. 1 ; Todd v. Sterrett, 6 J. J. Marsh. 432; Story Eq. PL § 231 and notes and cases cited. It is a good ground of demurrer to the whole bill that a person who has no interest in the suit, and has no Equity against the defendant, is improperly joined as a party plaintiff. Clarkson v. De Peyster, 3 Paige, 336. See Wright v. Santa Clara Mining Association of Baltimore, 12 Maryland, 443 ; Westfall v. Scott, 20 Georgia, 233. A bill for contribution by one stockholder of a manufacturing corporation, who has paid debts of the corpo- ration under legal process, is open to a demurrer, by a defendant who did not appear ever to have been a stockholder in the corporation. Heath v. Ellis, 12 Gushing, 601, 604. One defendant cannot object that another defendant, hav- ing no interest in the subject-matter of the suit, is improperly made a party. Cherry v. Monro, 2 Barb. Ch. 618. ■ Story Eq. PI. § 231 ; Boyd v. Vanderkemp, 1 Barb. Ch. 273; Garr v. Bright, 1 Barb. Ch, 157; Lyon v. Tevis, 8 Clarke (Iowa), 79; Ayers v. Wright, 8 Ired. Eq. 229. See Allin v. Hall, 1 A. K. Marsh. 527 ; Orkey v. Bend, 3 Edw. 482 ; Jones V. Hart, 1 Hen. & Munf. 4 70; Davis v. Simpson, 5 Har & John. 14 7. If an agent, selling land, binds himself individually, he should be a party to a suit touching the sale. Alexander v. Lee, 3 A. K. Marsh. 484. ^ Kingley v. Young, Coop. Tr. PI. 42. * See ante, Bankrupt Defendants Parties. * Scawin v. Scawin, 1 Y. & C. 68. * Plumnu^r v. Uay, 1 Ves. 42G ; How v. Best, 5 Mad. 19 ; Footman v. Pray, R. M. Charlt. 291 ; Story Eq. PI. § 234, 734; Felton v. Hughes, 7 Sumner's Vesey, 287, Perkins's note (a) and cases cited; Newman v. Godfrey, 2 Bro. C. OF THE JOINDER OF PARTIES. 297 a discovery in aid of an action at Law in whicli their discovery wonld be more effectual than their examination.^ Tiiis rule is, however, liable to exceptions ; thus in cases where under cei'tain circumstances a discovery upon oath is desirable from individual members of a corporation aggregate, or from the officers of a corporation, such members or officers may be made defendants ; ^ witli respect to the latter case, it has been observed by Lord Eldon, that " the principle upon which the rule has been adopted is very singular: it originated with Lord Talbot,^ who reasoned thus upon it, that you cannot have a satisfactory answer from a corporation, therefore you make the secretary a party, and get from him the discovery you cannot be sure of having from them, and it is added, that the answer of the secretary may enable you to get better information." " The first of these principles," continues his lordship, " is extremely 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 without objection, that it must be considered estab- lished." ^ Other persons are mentioned by Lord Eldon as affording excep- tions to the rule before laid down, that mere witnesses cannot be made parties to a suit, viz. agents to sell, auctioneers, &c., who liave been made defendants without objection ; ^ his lordship, how- C. (Perkins's ed.) 332; 2 Story Eq. Jur. § 1499; Wigram Discovery (Am. ed.), p. 165, § 235; Hare, 65, 68, 73, 76; Reeves v. Adams, 2 Dev. Ch. 192; Yates v. Monroe, 13 111. 212. ^ Fenton v. Hughes, 7 Ves. 288. See next preceding note, and ante, 180, note. 2 See ante. Corporations, 135. See Fenton v. Hughes, 7 Sumner's Vesey, 287, Perkins's note (a) and cases cited to this point; ante, 180 and note. A suit, to restrain the misappropriation of a fund held by a corporation in trust, cannot be maintained against the trustees appointed by the corporation to hold and manage the fund, without making the corporation a party. Tibballs v. Bidwell, 1 Gray, 399. To obtain the specific performance of a contract with a corporation for the sale of real estate, the trustee who holds the legal title to the corporation lands, should be made a co-defendant with the corporation. IMorrow v. Lawrence, 7 Wis. 574. « Wych V. Meal, 3 P. Wms. 210. * 7 Ves. 289. * Ibid. ; Gartland v. Nunn, 6 Eng. 720. Where one of two partners, after a dissolution, consigned property to an agent for sale, the proceeds to be applied to 298 OF PARTIES TO A SUIT. ever, 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 employer to a bill for the specific performance of such agreement.^ In Dummer v. The Corporation of Ciiippenham,^ Lord Eldon also mentions as cases of exception to the general rule above referred to, those of arbitrators and attorneys. With respect to arbitrators, however, it is a rule, that in general an arbitrator cannot be made a party to a bill for the purpose of impeaching an award, and that if he 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 Redesdale considers it probable that a demurrer to the bill would not have been allowed,^ and in Lord Lonsdale v. Littledale,^ a de- murrer, by an arbitrator, to a bill of this nature was in fact over- ruled, though not expressly upon the ground of the impropriety of making an arbitrator a party, but, because the bill charged cer- tain specific acts which showed combination or collusion between him and one of the parties, and made him the agent for such par- ty, and which the Court therefore thought required an answer.^ But although arbitrators may be made parties to a bill to set aside their award, they are not bound to answer as to their motives the payment of a partnership debt, in a bill against the agent by the other part- ner, the partner by whom the consignment was made, having become insolvent, he and his assignee were properly made defendants. Bartlett v. Parks, 1 Cash- ing, 82. Wilde J. said that the insolvent partner, " if not interested, may well be made a party for the purpose of discovery, as to all acts done by him before his insolvency, and the assignment of his property." p. 86. ' Coop. Tr. r. 42. ' 14 Ves. 252. « Steward v. E. I. Company, 2 Vern. 380; Lord Red. 162; Story Eq. PI. §231. * Chicot V. Lequesne, 2 "Ves. 315; Lingood v. Croucher, 2 Atk. 395, 950. See Hamilton v. Bankin, De Jex & M. 782 ; Story Eq. PI. § 232 and notes. * Lord Red. 162. * Ves. J. 451. ' 2 Story, Eq. Jur. § 1500, and cases cited. OF THE JOINDER OF PARTIES. 299 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 partiality to support their plea by showing themselves incorrupt and impartial, or otherwise the Coiu-t 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 parties 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 attor- neys, who can only be made parties to a suit in cases where they have so involved themselves in fraud, that a Court of Equity, al- though it can give no other relief against them, will order them to pay the costs.^ Thus, where a solicitor assisted his client in ob- taining a fraudulent release from another, he was held to be prop- erly 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 at- torney or solicitor.^ 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, otherwise a demurrer will lie. In Le Texier v. The Margravine 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 litigation, she had acted as the agent of her husband, and that she had in her possession vouchers, &c., the discovery of which might 1 Anon. 3 Atk. 644. • Lingood v. Croucher, supra. » Story Eq. PI. § 232; Lyon r. Tevis, 8 Clarke (Iowa), 99. • Bowles V. Stewart, 1 Sch. & Lef. 227. " Bulkley v. Dunbar, 1 Anst. 37; Story Eq. PI. § 838; Gartland v. Nunn, 6 Eng. 720. But where a judgment debtor seeks relief against the judgment, in Equity, the attorneys of the plaintiif 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 case, 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 filed for the purpose of setting aside such will, although he has no interest; and he may be liable to costs. Brady v. McCosker, 1 Corn- stock, 214. • 15 Ves. 164. 300 OF PARTIES TO A SUIT. assist the plaintiff in his case ; the hill, which did not pray any re- lief against the wife, had been dcmnrrcd to, and Lord Eldou al- lowed the demnrrcr 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 deliv- ery to the plaintiff of the 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 dis- covery only. The consequence is, that independent of her char- acter 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 relief 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 possession. Lord Eldon, in Fenwick v. Reed,^ observed, that generally speaking, and prima fade, it is cer- tainly 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 ,2 because the possession of the attorney is the possession of his client, but cases may arise to render such a pro- ceeding advisable, as if he withholds 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 purpose of discovery ; the proper course for him to adopt, 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 course hold, though the defendant has no interest, and he can then only avoid answering the bill by plea or disclaimer.^ » 1 Mer. 123. 2 Wakeman v. Bailey, 3 Barb. Ch. 482. 3 1 Smith, Ch. Br. (2d Am. ed.) 677, 678. Where the plaintiff" wishes to ob- tain the custody of books and papers in possession of a third person, the proper course is to make such third person a party defendant. Morley v. Green, II Paige, 240. * Lord Red. ISD. ^ Ibid.; Plummer r. May, I Ves. 426. "Where a suit becomes useless against a particular defendant, it is a laudable course for the plaintiff" to dismiss the bill af^ainst him, and he may incur censure if he brings the suit to a hearing without doinf' this. AVriglit v. Barlow, 8 Eng. Law & Eq. 125. OF THE JOINDER OF PARTIES. 301 The question whether a party who is a mere witness can by an- swer protect himself from the discovery required, appears to have given rise to some difference of opinion. In Cookson v. Ellison,^ the plaintiff" made a person defendant wlio was merely a witness, and might have been examined as such, and therefore should have demurred to the bill. Instead of demurring, however, the defend- ant put in an answer, which not having satisfied the plaintiff as to one interrogatory, an exception was taken, and the Master reported the answer sufficient ; but upon the case coming beford Lord Thur- low, upon exception to the Master's report, his lordship held, that as the defendant had submitted to answer, he was bound to answer fully. In a subsequent case of Newman v. Godfrey,^ however, Lord Kenyon, M. R., appears to have entertained a different opin- ion. In that case, the defendant, who was a mere clerk, was alleged in the bill to be a party interested in the property in liti- gation, and in support of such allegation various statements were made, showing in what manner his interest arose ; he put in an answer denying 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 exceptions 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 re- duced himself to a mere witness, by denying his interest and dis- claiming ; so that even supposing he had an interest he could not, having disclaimed, have availed himself of it. These contradic- tory 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 Cookson V. Ellison.* Nothing, 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 party could not, except in particular cases, protect himself by answer from making a full an- 1 2 Bro. C. C. 252. « 2 Bro. C. C. 332. 5 Fenton v. Hughes, 7 Ves. 288; Baker v. Mellish, 11 Ves. 75, 76. * Supra. VOL. I. 26 302 ^ OF PARTIES TO A SUIT. swer to all the matters contained in a bill, does not appear to have been so strictly adhered to as it was subsequently.^ When a plaintiff finds that he has made unnecessary parties to his bill, he may cither 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 only be made on payment of their costs,^ as by striking them out as defendants, the plaintiff deprives tliem of the opportunity of applying for their costs at the hearing.^ The preceding observations, with 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 defend- ants ; 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. This has been the doctrine of the Court for a great length of time ; thus, in the case of The Mayor and Aldermen of Colches- ter,* Lord Chancellor Parker said, that although Equity goes so far as to give either side leave to examine a defendant de bene esse, yet this rule has not beeu extended to a plaintiff, in which case, if he be an immaterial plaintiff, the defendant may demur.^ So in Troughton v. Getley,^ it was said and not denied, that if a plaintiff was an immaterial party the defendant might demur. The same question was twice decided by Sir J. Leach, V. C. Li Cuff V. Platell,^ a general demurrer was allowed expressly on the ground, that though one of two plaintiffs had an interest in the subject of the suit, the other had no interest in it. In Makepeace V. Haythorne,^ a defendant pleaded in bar to a bill for an account that one of the plaintiffs was an uncertificated bankrupt ; and ^ See Dolder v. Lord Huntingfield, 11 Ves. 283; Faulder v. Stuart, ib. 296; Shaw V. Ching, ib. 303, and post, Answer. See a discussion of this subject in Wigram, Discovery (Am. ed.), PI. 148, 149, &c. p. 86, 87 et seq. - Covenhovon v. Shulcr, 2 Paige, 122. See Wright v. Barlow, 8 Eng. Law & Eq. 125 ; Manning v. Gloucester, 6 Pick. 6, 17, 18 ; Dana v. Valentine, 5 Met- calf, 12, 13. » Wilkinson v. Belsher, 2 Bro. 272. * 1 P. W^Tis. .095. » Story Eq. PI. § 390. • 1 Dick. 382. "> 4 Russ. 242. 8 Ibid. 244. OF THE JOINDER OF PARTIES. 303 though the other plaintiff had such an interest as would sustain the suit if he had sued alone, and though the persons named in the plea as assignees of the bankrupt defendant were already par- ties in respect of some of the transactions mentioned in the i)lead- ings, so that nothing could turn on any alleged want of parties (even if the plea had taken such an objection, which it did not do,) the Vicc-Chancellor allowed the plea expressly on the ground that one of the parties had no interest in the subject-matter of the suit.^ The same doctrine was followed by Lord Lyndhurst, in the King of Spain v. Machado,^ in which several plaintiffs having an inter- est in the matter of the suit were joined with others who had not, but were merely the agents of their co-plaintiffs, and a demurrer to the whole bill was allowed.^ And in Page v. Townsend,'* where a bill was filed by four plaintiffs to restrain the piracy of engravings published in this country, and it appeared upon the bill that all four plaintiffs were jointly interested in the plates or de- signs from which the engravings were taken, but that two of them only published them in England for their own benefit, the other two plaintiffs being the publishers of the same engravings in Paris for their own benefit ; the V. C. of England allowed a demurrer, because two of the plaintiffs only appeared to have an interest in the suit, the publishers in Paris not being represented as having any interest in the work published in Great Britain. ^ 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 purpose of bringing additional matter before the Court ; because, although he may have parted with his interest in the subject-mat- ter, 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 1 Story Eq. PL § 509, 544, 551 ; Clarkson v. De Peyster, 3 Paige, 336 ; Clason V. Lawrence, 3 Edw. Ch. 48. * Ibid. 225. ' Story Eq. PI. § 544. * 5 Sim. 395. * See also, Delondre t;. Shaw, 2 Sim. 237 ; and Glyn v. Soares, 3 M. & K. 458,472. 304 OF PARTIES TO A SUIT. persons on behalf of tliemselves and other members of a Joint- Stock Company, to which an answer was put in and a decree made, setting aside certain contracts between the plaintiffs and the defendant, and directing various accounts and inquiries, and after- wards a supplemental bill was filed in the name of the same plain- tiffs 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 was put in by the defendant 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 partnership, &c., Lord Lyndhur^t, C. B., overruled the plea, being of opinion that the supplemental bill was nothing more than a continuation of the original bill, and his lordship's de- cision was afterwards confirmed by Lord Abinger, C. B., upon a rehearing.^ It is to be observed, that the common case of joining an auc- tioneer and the vendor in a bill against a purchaser, is no exception to the rule above referred to, because 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 plaintiffs having no interest in the suit, appears on the bill, advantage must be taken of it by demurrer.^ If the fact does not appear upon the bill it may be brought for- » Small V. Attwood, 1 Young & Collier, 39 Exc. R. " But in a suit in Ec^uity by a purchaser for relief against a sale at auction, in ■which the auctioneer used fi-aud to enhance tlie price, it was held that it was not necessary to make the auctioneer a party. Veazie v. Williams, 8 Howard (U. S.), 134. But if the auctioneer is made a party he cannot demur, in such a case, on the irround that he is a mere witness. Schmidt v. Ditericht, 1 Edw. Ch. 119. ^ Ryan v. Anderson, 3 Mad. 174. See Story Eq. PI. § 153 and notes; ante, 192 et seq., and notes. * Cuff V. riatell, King of Spain v. Machado, Page v. Townsend, Delondre v. Shavr,vbi supra; Story Eq. PI. §541-544; Bowie r. Minter, 2 Ala. (N. S.) 406 ; Talmage v. Pell, 9 Paige, 410 ; Gossett v. Kent, 19 Ark. (J02. OF THE JOINDER OF PARTIES. 305 ward by plca,^ and where at the hearing, the claim of one of two co-plaintifts failed entirely whilst that of the other succeeded, the V. C. of England dismissed the bill as against both plaintiffs, but without prejudice to tlie right of the one who had succeeded to file a new bill.^ Upon a simple principle, in cases where all the plaintiffs have an interest in the subject of the suit, but their interests are distinct and several, they will not be allowed to sue together as co-plain- tifFs ; ^ thus, in Hudson v. Maddison,"^ where a bill was filed by five ^ Makepeace v. Haythorne, ubi supra. In Watertown v. Cowen, 4 Paige, 510, it was held too late to take a mere formal objection of this kind for the first time at the hearing. See Dickinson v. Davis, 2 Leigh, 401 ; Sheppard v. Starke, 3 Munf. 29; Mayo v. Murchie,ib. 358 ; Story Eci- Tl. § 544, 232, 236, 509 ; Harder 17. Harder, 2 Sandf Ch. 17; Bowman v. Burnley, 2 McLean, 376; Story v. Livingston, 13 Peters, 359; Bowie v. Minter, 2 Ala. 406. If the misjoinder is of parties plaintiffs, all the defendants may demur ; such a misjoinder is a proper ground of objection. Cammeyer v. United German Lutheran Churches, 2 Sandf Ch. 186. If the misjoinder 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 defendant, who is without the jurisdiction, and is therefore a party only by 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 misjoinder of plaintifis, 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 materially affect the propriety of the decree. Story Eq. PI. § 544 and notes. - Cowley V. Cowley, 9 Sim. 299 ; Moore v. Moore, 17 Alabama, 631 ; it seems, however, that in general an objection of this kind, if not raised upon the plead- ings, will not be allowed at die hearing. Eades v. Harris, 2 Y. & C. 230 ; Raf- fety V. King, 1 Keen, 601 ; Cashell v. Kelly, 2 Dr. & W. 181 ; Louis v. Meek, 2 Greene (Iowa), 55 ; Murray v. Hay, nujjra. But the Court may in its discretion, and under circumstances, in such a case, dismiss the bill as to all the plaintiffs, or only as to those who are improperly joined. Myers v. Farrington, 18 Ohio, 72. Where a person is made a co-plaintiff improperly, without his privity 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. " Merrill v. Lake, 16 Ohio, 373 ; Ohio v. Ellis, 10 Ohio, 456 ; Poynes v. Creagh, 2 Irish Eq. 190 ; Beaty v. Judy, ] Dana, 103 ; Boyd v. Hoyt, 5 Paige, 65 ; Story Eq. PI. § 279, 530, 531 ; Yeaton v. Lenox, 8 Peters, 123; Harrison v. Hogg, 2 Vesey jr., 323, 328; Brinkerhoff v. Brown, 6 John. Ch. 139, 150-153; Clark- son V. De Peyster, 3 Paige, 320 ; Lentilhon v. Moffat, 1 Edw. Ch. 451 ; Hallett V. Hallett, 2 Paige, 15; Egbert v. Woods, 3 Paige, 517; Van Cleef v. Sickles, 5 Paige, 505 ; Baily v. Bruton, 8 Wendell, 339 ; Kay v. Jones, 7 J. J. Marsh. 37. * 12 Sim. 416. 26* 306 OF PARTIES TO A SUIT. 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.^ 1 But it has been held that two or more persons, having separate and distinct tenements which are injured or rendered uninhabitable by a common nuisance, or which are rendered less valuable by a private nuisance, which is a common injury to the tenements of both, may join in a suit to restrain such nuisance. Murray v. Hay, 1 Barb. Ch. 59; Putnam v. Sweet, 1 Chand. (Wis.) 286. The Court exercises a sound discretion, without adhering to an Inflexible rule, in determining whether there has been a misjoinder of parties in Equity. In En 15 & 16 Vict. c. 86. ^ In Massachusetts, the plaintiff must file his bill before or at the time of taking out the subpcEna ; and no injunction or other proceeding shall be ordered until the bill is filed, unless for good cause shown. Chancery Practice, Rule 3. A suit in Equity is, it seems, commenced when the bill is filed. McLin v. McNamara, 2 Dev. & Bat. Ch. 82 ; Aston v. Galloway, 3 Iredell Ch. 126. ^ 2d Order, August, 1852. * 3d Order, August, 1852. 27* 318 OF THE BILL. to revive the present practice ; the section is as follows : " It shall be lawful for the Lord Chancellor from time to time to make any order or orders directing that the provisions hereinbefore con- tained as to printing or otherwise shall be discontinued or sus- pended until further order, and to direct that all or any of the present practice as to the filing of bills and claims, and the issuing and service of subpoenas and writs of summons, may be revived and come into operation as if this act had not passed." An original bill in Chancery is in the nature of a declaration at Common Law,^ or of a libel and allegation in the Spiritual Court.^ It was, in its origin, nothing but a petition to the sovereign, ■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 Chancellor, Lord Keeper, or Lords Commissioners for the custody of the Great Seal. Where a bill prays the decree of the Court, touching rights claimed by the person exhibiting it in opposition to rights claimed by the person against whom it is exhibited, it must contain a state- ment showing the rights of the plaintiff or person exhibiting the bill, by whom and in what manner he is injured, or in what he wants the assistance of the Court ; ^ and a prayer for relief suit- able to his case. This statement and prayer form the substance and essence of every bill. It will be convenient, in the first place, to state the statutory rules, and the orders of the Court, as to the form of bills. By the 10th section of the act to amend the practice of the Court of Chancery, it is enacted, that " Every bill of complaint to be filed in the said Court after the time hereinafter appointed for the commencement of this act shall contain as concisely as may be a narrative of the material facts, matters, and circumstances, on 1 3 Bl. Com. 442. « Ibid. Gilb. For. Rom. 44. ^ See Post, " stating part" in this chapter. A bill may be drawn with a double aspect. So that, if one ground fail, the plaintiff may rely upon another. Mc- Connell v. McConnell, 11 Vermont, 290; Murphy v. Clark, 1 Smedes & M. 221 ; Baines v. McGee, 1 Smedes & M. 208 ; Ligan v. Henderson, 1 Bland, 236 ; Mills V. Mctcalf, 1 A. K. Marsh. 47 7 ; Barnett v. Woods, 2 Jones Eq. (N. C.) 198. A bill framed with a double aspect must be consistent with itself. Ilart v. McKeese, Walker Ch. 417. OF THE FORM AND MATTER OF A BILL. 319 which the plaintiff relies,^ such narrative being divided into para- graphs, numbered consecutively, and each paragraph containing, as nearly as may be, a separate and distinct statement or allega- tion, and shall pray specifically for the relief which the plaintiff may conceive himself entitled to, and also for general relief ; but such bill of complaint shall not contain any interrogatories for the examination of the defendant." By the 14th of the General Orders of August, 1852, it is de- clared, that a bill may be in a form similar to the form following, with such variations as the nature and circumstances of each par- ticular case may require : Bill. " In Chancery. The Lord Chancellor. Vice-Chancellor Wood. John Lee ..... Plaintiff. James Styles \ and > . . . . Defendants. Henry Jones ) Bill of Complaint. To the Right Honorable Edward Burtenshaw Baron St. Leonards, of Slaugham, in the county of Sussex, Lord High Chancellor of Great Britain, " Humbly complaining, sheweth unto his Lordship John Lee, of Bedford Square, in the county of Middlesex,^ Esq., the above- named plaintiff, as follows : — 1. The defendant James Styles, being seised in fee simple of a farm called Blackacre, in the parish of A. in the county of B., with the appurtenances, did, by an indenture dated the first of ^ The rule in Massachusetts by Statute is, that the material facts and circum- stances shall be stated with brevity, omitting immaterial and irrelevant matters. Genl. Stats, c. 113, s. 3; Mass. Chancery Practice, Rule 4. The rules of Chan- cery Practice in Maine require the bill to set forth clearly, succinctly, and precisely, the facts and causes of complaint. Boynton v. Barstow, 38 Maine, 577. * In New Hampshire, by Rule in Chancery, " the name of the county in which a suit in Ec^uity may be brought, shall be written in the upper margin of each proceeding ; and the words in said count)/ shall refer to the county in the margin, unless the contrary appears." Rule 1, 38 N. Hamp. 605, Appendix. 320 OF THE BILL. May, one thousand eight hundred and fifty, and made between the defendant James Styles of the one part, and the plaintiff of the other part, grant and convey the said farm with the appurtenances unto and to the use of the plaintiff, his heirs and assigns, subject to a proviso for redemption thereof, in case the defendant James Styles, his heirs, executors, administrators or assigns, should on the first of May, one thousand eight hundred and fifty one, pay to the plaintiff, his executors, administrators or assigns, the sum of five thousand pounds, with interest thereon, at the rate of five pounds per centum per annum, as by the said indenture will ap- pear. 2. The whole of the said sum of five thousand pounds, together with interest thereon at the rate aforesaid, is now due to the plaintiff. 3. The defendant Henry Jones claims to have some charge upon the farm and premises comprised in the said indenture of mortgage of the first of May, one thousand eight hundred and fifty, which charge is subsequent to the plaintiff's said mortgage. 4. The plaintiff has frequently applied to the defendants James Styles and Henry Jones, and required them either to pay the said debt, or else to release the equity of redemption of the premises, but they have refused so to do. 6. The defendants James Styles and Henry Jones pretend that there are some other mortgages, charges or incumbrances, affect- ing the premises, but they refuse to discover the particulars thereof. 6. There are divers valuable oak, elm, and other timber, and timber-like trees growing and standing on the farm and lands comprised in the said indenture of mortgage of the first of May, one thousand eight hundred and fifty, which trees and timber are a material part of the plaintiff's said security : and if the same or any of them were felled and taken away, the said mortgaged pre- mises would be an insufficient security to the plaintiff for the money due thereon. 7. The defendant James Styles, who is in possession of the said farm, has marked for felling a large quantity of the said oak and clra-trees and other timber, and he has, by handbills, published on the second December instant, announced the same for sale, and he threatens and intends forthwith to cut down and dispose of a con- siderable quantity of the said trees and timber on the said farm. OF THE FORM AND MATTER OF A BILL. 821 Prayer. The plaintiff prays as follows : — 1. That an account may be taken of what is due for principal and interest on the said mortgage. 2. That the defendants James Styles and Henry Jones may be decreed to pay to the plaintiff the amount which shall be so found due, together with his costs of this suit, by a short day to be appointed for that purpose, or, in default thereof, that the defendants James Styles and Henry Jones, and all persons claiming under them, may be ul)- solutely foreclosed of all right and equity of redemption in or to the said mortgaged premises. 3. That the defendant James Styles may be restrained by the injuntion of this honorable Court from felling, cutting, or disposing of any of the timber or timber-like trees now standing or growing in or Tipon the said farm and premises comprised in the said indenture of mortgage, or any part thereof. 4. That the plaintiff may have such further or other relief as the nature of the case may require. Names of defendants. The defendants to this bill of complaint are, James Styles, Henry Jones. Y.Y. (name of counsel). Note. — This bill is filed by Messrs. A. B. and C. D., of Lin- coln's Inn, in the county of Middlesex, solicitors for the above- named plaintiff." A bill duly prepared under this order will differ from a well- drawn bill under the former practice in two material particulars, namely, the numbering of the paragraphs, and the omission of the interrogatories. It may be observed that what is called the charg- ing part is not prohibited by this section. This part of a bill has sometimes been animadverted upon, upon the ground that it causes undue repetition ; but when it is properly used, that is, when it is applied for the purpose of introducing some answer 822 OF THE BILL. of the plaintifT to the probable defence of the defendant, it is very useful and important. Although the form of a bill is made more simple under the present practice, the material parts are still necessary ; thus it is still the rule, as stated before, that every bill must show clearly that the plaintiff 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,^ otherwise the defendant may demur ;^ thus where a plaintiff claims under a will, and it appears upon the con- struction of the instrument, that he has no title, a demurrer will be allowed.^ Lord Redesdale formerly observed, " a dry question upon the construction of a will may be as deliberately determined upon argument of a demurrer, as upon the hearing of a cause in the ordinary course, and the difference in expense to the parties may be considerable." Of the truth of this observation, at the time when it was made, there could be no doubt; and even yet there may be cases when such a course is the more convenient, but now the comparative cost of a decree is so small, that it will be generally worth while to obtain a decree whereby the decision of the Court is put clearly upon record. The rule, which requires a plaintiff to show by his bill an inter- est in the subject-matter of the suit, applies not to one plaintiff only, but to all the plaintiffs ; and if several persons join in filing a bill, and it appears that one of them has no interest, the bill is objectionable, and would formerly have been open to demurrer,* » Lord Red. 154 ; Story Eq. PI. § 23 ; Cruger v. Hallday, 11 Paige, 314 ; Bai- ley V. Ryder, 10 N. Y. (6 Selden), 363 ; Walthall v. Rives, 34 Ala. 91 . It is a fundamental rule in all cases of bills in Equity, that they must state a case within the appropriate jurisdiction of a Court of Equity. Story Eq. PI. § 10, 34 ; Chase V. Palmer, 25 Maine, 341 ; May v. Parker, 12 Pick. 34. In all bills in Equity, in the Courts of the United States, 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 Mason, 435 ; Story Eq. PI. 26, note ; Bingham v. Cabot, 3 Dall. 382 ; Jackson v. Ashton, 8 Peters, 148 ; Story Eq. PI. § 492 ; Vo.se v. Phil- brook, 3 Story C. C. 335. See Louisville and R. R. Co. v. Stetson, 2 Howard U. S. 497. " Lord Red. 154; Story Eq. PI. §508, 509, 260, 261. » Beech v. CruU, Prec. Ch. 588; 2 Bro. P. C. 468, S. C. ; but if the defendant instead of demurring brings the cause to a hearing, he will, although successful, not be allowed his costs. Hollingsworth v. Shakeshaft, 14 Beav. 496, and cases there cited. * The Mayor and Aldermen of Colchester v. , 1 P. Wms. 595 ; Trough- ton V. Getley, 1 Dick. 382 ; Cuff u. Platell, 4 Russ. 242 ; Makepeace v. Hay- OF THE FORM AND MATTER OF A BILL. 323 though, as we have now seen,^ means are provided for rectifying such errors at the hearing. 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 suffi- cient to sustain a bill ; ^ therefore, where a plaintiff claiming as a devisee under 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 persons who would have been entitled to the personal estate of a lunatic, if he had been then dead intestate, as his next of kin, supposing him legitimate, brought a bill in the lifetime of the lunatic to perpet- uate the testimony of witnesses to his legitimacy, against the Attorney-General, as supporting the rights of the Crown,* demur- rers were allowed. For the parties in these cases had no interest which could be the subject of a suit ; they sustained no character under which they could afterwards sue, and therefore the deposi- tions, if taken, would 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, &c., although a bill would lie for that purpose by a person entitled to a vested remainder.^ Where the .dignity of Earl was entailed upon an individual who died, leaving two 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 per- petuate testimony as to his father's marriage, a demurrer was allowedJ thorne, ib. 244; King of Spain v. Machado, ib. 225; Delondre r. Shaw, 2 Sim. 23 7;- Page v. Townsend, 5 Sim, 395. And such is now the rule in the United States. Story Eq. PI. § 509, 541, 544 ; Clarkson v. Be Peyster, 3 Paige, 336 ; Manning v. Gloucester, 6 Pick. 6. ^ Ante, p. 306, note. * Lord Red. 157. * Sackvill r. Ayleworth, 1 Vern. 105; Ex. Ca. Ab. 234, PL 3; see also, 2 Prax. A. 500, where there is a form of a demurrer. * Smith V. Attorney-General, Lord Eed. 157, 1 Vern. 105; ed. Raithby, notis cited, 6 Ves. 255. * Story Eq. PI. § 301, and cases cited; 2 Story Eq. Jur. § 1511 ; Dursley v. Berkley, 6 Sumner's Vesey, 251, and notes. * Noel V. Ward, 1 Mad. 323; Allan v. Allan, 15 Ves. 130. ' Earl of Belfast v. Chichester, 2 J. & W. 439. 824 OF THE BILL. Where, however, a party has an interest, " it is perfectly imma- terial how minute such interest may be, or how distant the possi- bility of the possession of that minute interest, if it is a present interest.^ A present interest, the enjoyment of which may depend upon the most remote and improbable contingency, is, neverthe- less, a present estate ; and as in tlie case upon Lord Berkeley's will,^ though the interest may, with referrence to the chance, be worth nothing, yet it is, in contem{)lation of law, an estate and interest, upon which a bill may be supported."^ But although a plaintiff may have 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. To such a bill it seems the tenant in tail might demur, upon the ground that he may at any time suffer a recovery, which would destroy the remainder, and deprive the plaintiff of his interest.^ A plaintiff must not only show in his bill an interest in the sub- ject-matter of the suit, biit he must also make it appear that he has a proper title to institute a suit concerning it ; ^ for it very often happens that a person may have an interest in the subject-matter, 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 per- sonal property of his testator ; but, till he has proved the will, he has strictly no right to assert his right in a court of justice. If, therefore, a man files a bill as executor, and does not state in it that he has proved the will in the proper Court, the bill has been held open to demurrer.'^ It is sufficient, however, to allege in the > Story Eq. PI. § 301. * Lord Dursle.y v. Fitzhardinge, 6 Ves. 251. « Per Lord Eldon, in Allan v. Allan, 15 Ves. 136 ; 2 Story Eq. Jur. § 1511. « 6 Ves. 262. ' It would be a fruitless exercise of power to entertain a bill to perpetuate evi- dence in such a case. Story Eq. PI. § 301. • Lord Red. 155. It is not essential that the plaintiff's title should be explicit- ly averred. It is sufficient that it may fairly be inferred from the facts stated. Webber v. Gage, 39 N. Ilamp. 182 ; Story Eij. PI. § 730 ; Clapp v. Shephard, 23 Pick. 228. ' Humphreys v. Tngledon, 1 P. Wms. 752 ; Story Eq. PI. § 625 ; Champlin V. Parish, 3 Edw. Ch. 581. OF THE FORM AND MATTER OF A BILL. 325 bill tliat the plaintiff has proved the will in the proper Court, with- out mentioning the Court in which it was proved.^ With reference to this point, it is to be observed, that if a plahi- tiff takes upon himself to state upon his bill the Court in which he has proved the will, or taken out administration, and it appears to have been an improper or insufficient Court, he will not show a complete title to sue, and a demurrer will liold.^ From a case, as it stands reported, it appears that Sir J. Leach, M. R., was of opin- ion that the probate of a will in a subordinate jurisdiction, even where there were no bona notabilia, would not be sufficient to en- title the executor of a deceased creditor to a decree for an account of his debtor's estate ; and the executor must, before the decree is pronounced, be armed with a prerogative probate.^ In that case, however, his Honor appears to have proceeded on a mistaken view of the rule, that the Accountant-General cannot pay money out of Court without a prerogative probate.* That rule is appli- cable only to cases where there is money already in Court, and the party entitled to that inoney dies before he receives it ; in such cases the Court requires a prerogative probate, and will not direct the money to be paid out on a diocesan probate, because the fund itself being in Court at the same time that the death of the party took place in a country diocese, shows that there are bona notabilia in divers dioceses, and consequently, that a prerogative is the com- petent probate ; ^ but where a party entitled to relief as the execu- tor or administrator of a person who died in a particular diocese, without leaving bona notabilia in different dioceses, claims under a probate or administration granted in the particular diocese, and in the course of the cause the fund in question is brought into the Court, it is not necessary that the personal representative, in order to entitle himself to get the money out of Court, should take out a fresh probate or letters of administration in the Prerogative Court.^ Payment into Court is a precautionary measure, and ' Humphreys v. Ingledon, 1 P. Wms. 752. = Lord Red. 155 ; Tourton v. Flower, 3 P. Wms. 369 ; Comber's case, 1 P. Wms. 767. ^ Young V. Elworthy, 1 M. & K. 215. * Challnor v. Murhall, 6 Ves. 118 ; Newman v. Hodgson, 7 Ves. 409 ; Thomas V. Davies, 12 Ves. 417. * Per Sir J. NiohoU, in Scarth v. Bishop of London, 1 Hag. 625, 636 ; Jones t>. Howell, 2 H. 342. ' In re Knowles, 1 De Gex, Mac. & G. 60 ; In re Spencer, 1 De Gex, Mac. & VOL. I. 28 326 OF THE BILL. does not afTcct the rights and interests of any of the parties litigat- ing ;i therefore if a plaintiff, at the time he files his bill, has a proper title to maintain the suit, the mere fact of the money being brought into Court for its better security, docs not alter that title and render it necessary for him to seek a new one.^ With reference to the above point, it may be observed that, in order to complete the title of a plaintiff as a derivative executor, it has been held not necessary that the will of the original testator and that of his executor should be proved in the same Court ;^ and where the will of the original testator had been proved in the Prerogative Court by two of his executors, both of whom died, and the executors of the survivor, upon the death of their testator, as he had not bona notabilia, proved the will in the Consistory Court of Llandaff, it was ultimately decided that the chain of rep- resentation was complete, and a decree was made accordingly."* If an executor, before probate, file a bill, alleging that he has proved the will in a proper Ecclesiastical Court, such allegation will obviate a demurrer ; ^ he must, however, prove the will 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 this respect, Courts of Equity differ from Courts of Law ; for at law an executor cannot maintain actions before probate, un- G. 311. It seems, from the above case of Scarth v. The Bishop of London, that, when money is in the public funds, and the party dies out of England, the Arch- bishop of Canterbury and Bishop of London have a concurrent jurisdiction to grant probate ; and that, although when a party dies within a diocesan jurisdic- tion, without bona notabilia, the Prerogative Court will not usually grant probate ; yet, in order to aid the ends of justice, it will, if necessary, grant an additional probate, limited to the recovery of the property sought. See Yockney v. Foys- ter, 1 Hag. 631, n. ; and Sir John NichoU's observations upon the same case, ib. p. 636. ' Except in the case of a married woman, ante, p. 90, 91. * Upon the above case of Young v. Elworthy being cited before Lord Brougham, Mr. Colwell, the Registrar, stated that Sir J. Leach, M. R., had subsequently changed his opinion upon the point, and directed the decree to be drawn up; and this statement was acted upon by his lordship, who observed that the distinc- tion was obvious ; MSS , 10 Nov. 1834. 8 Wankford v. Wankford, 1 Salk. 299 - 309. * Fowler v. Richards, 5 Kuss. 39. There may be some doubt of the propriety of this decision ; see the cases of Jernegan v. Baxter, 5 Sim. 568 ; Twyford v. Trail, 7 Sim. 92. ' Humphreys v. Ingledon, 1 P. Wms. 752. * Humphreys v. Humphreys, 3 P. Wms. 349. OF THE FORM AND MATTER OF A BILL. 327 less such as arc founded on actual possession ; because, in actions where he sues in his representative character, he is bound, when he declares, to make profert of the letters testamentary ; ^ other- wise the defendant may demur.^ Tlic same distinction also pre- vails between the practice of Courts of Law and Courts of Eqviity with respect to administrators ; for in Equity a plaintiff may file a bill as administrator before he has taken out letters of adminis- tration, and it will be sufficient to have them at the hearing,^ which is not the case at Law.^ It is to be observed that, although an executor or administrator may, before probate or administration granted, file a bill relating to the property of the deceased, and such bill will not on that ac- count be the subject of demurrer, provided the granting of probate or of letters of administration, by the proper Ecclesiastical Court, be alleged in the bill, yet a defendant may take advantage of the fact not being as stated in the bill, by plea.^ At Law, however, it seems that a defendant cannot plead to an action brought by an executor, that the plaintiff has not proved the will, though he may demur if the plaintiff does not, in his declaration, show the pro- bate.^ The reason of this is, that the riglit of the executor is de- rived from the will and not from the probate, which only completes the incipient title. With pespect to an administrator, however, it is different ; for the administrator receives his right entirely from the administration." "' But although an executor filing a bill before probate, must, as we have seen, allege in it that he has proved th^ will in the proper Ecclesiastical Court, it is not necessary that in a bill against an executor such a statement should be made ; for if executors elect * In Axers v. Musselman, 2 Browne, 115, it was held, that in a suit by an ex- ecutor for a cause of action arising in the testator's lifetime, the plaintiff need not make profert of the letters testamentary. A declaration by an administrator need not make profert of letters of administration, or set forth when or by what author- ity administration was granted. Langdon v. Potter, 11 Mass. 313. See Savage V. Meriam, 1 Blackf. 176 ; Caller v. Dade, Minor, 20. " Comber's case, 1 P. Wms. 768. In Call v. Ewing, 1 Blackf 301, it was held, that executors must take out letters testamentary, before the filing of their decla- ration. ^ Fell V. Lutwidge, Barnard, 320 ; Humphreys v. Humphreys, 3 P. Wms. 350. * See Langdon v. Potter, 11 Mass. 313. * Simons v. Milman, 2 Sim. 241 ; Story Eq. PI. § 727. See Belloat v. Morse, 2 Hayw. 157. * Comber's case, 1 P. AYms. 768. ' Ibid. 328 OF THE BILL. to act, they are liable to be sued before probate, and cannot after- wards renounce.' It also seems that if a party entitled by law to take out administration to a deceased person, does not do so, but acts as if he were administrator, and receives and disposes of the property, he will be liable to account as administrator, but it will be necessary to have a duly constituted legal personal representa- tive before the Court.^ It may be here observed, that if it appears to the Court that the probate, or the letters of administration, bear a stamp applicable to a less sum than that which is sought to be recovered in the cause, no decree can be obtained until the defect has been recti- fied, and the party can show that he represents the estate to an amount sufficient to cover his claim ;^ though, if the fact that the plaintiff be administrator or executor is admitted, the objection can scarcely arise.* Where it appears that, in order to complete the plaintiff's title to the subject of the 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 upon the bill, and the mere allegation that the title is complete, without such averment, will not be suffi- cient ; thus, where a plaintiff claimed as a shareholder by pur- chase of certain shares in a Joint-Stock Company or Association, alleging in his bill that he had purchased such shares for a val- uable consideration, and had ever since held the same ; but it appeared 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 purchaser 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 performance of the rule above pointed out was a condition precedent, and ought to have been averred upon the bill, and that the allegation of the plaintiff having purchased the shares and being a shareholder, although admitted by the demurrer, was not sufficient to cure the defect.^ » Blewitt V. Blewitt, 1 Youiige, 543 ; Cleland v. Cleland, Free. Ch. 64. See Story Eq. PI. §91. 2 Creasor v. Robinson, 14 Beav. 589, overruling Free. Ch. 64. 8 Jones V. Ilowells, 2 H. 342 ; Clcugli v. Dixon, 10 Sim. 564 ; Nail v. Punter, 5 Sim. 5G3 ; Hunt v. Stevens, 3 Taunt. 113 ; Rogers v. James, 7 Taunt. 147. * See Thynne v. Protlteroe, 2 ]\I. & S. 553. s Walburn v. Ingilby, 1 M. & K. 61 ; Story Eq. PI. § 257, 257 a, 258. OF THE FORM AND MATTER OF A BILL. 329 In pleadings at Common Law, it is held that, in stating a deriv- ative title, a party claiming by inheritance must show how he is heir, viz. as son or otherwise ; and, if he claims by mediate and not immediate descent, he must show the pedigree ;^ for example, if he claims as nephew, he must sliow how he is nephew. It ap- pears to be right, upon every principle, that the same rule siiould be observed in bills in Equity, at the same time a lower style of pleading has ofteu been admitted without objection, and probably it would be difficult in modern times, when br.evity is so much con- sidered, to compel a plaintiff to set forth his title very minutely .^ 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, then it is not necessary to state the plaintiff's title fully in the bill ; thus, where a plaintiff's claim against the defendant arises under a deed or other instru- ment, executed by the defendant himself, or by those under whom he claims, which recites, or is necessarily founded upon, the exist- ence, in the plaintiff, of the right which he asserts, it is sufficient to allege the execution of the deed by the parties. Thus, in the case of a bill, by the mortgagor in fee, against a mortgagee, to redeem the mortgage, it is sufficient merely to state the mortgage- deed, without alleging the title of the mortgagor ; and so if the mortgagor has only a derivative title, it is not necessary to show the commencement of such derivative title, or its continuance, because the right of the plaintiff to redeem, as against the defend- ant, does not depend upon the title under which he claims, but upon the proviso for redemption in the mortgage-deed. Upon the same principle, where a defendant holds under a lease from the plaintiff, the plaintiff 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 bai- liff or agent, to receive his rents or tithes, the right to call upon the bailiff or agent for an account does not depend upon the title of the employer to the rents or tithes, but to the privity existing between him and his bailiff or agent ; the employer may therefore * Steph. on Pleadings, 340. ^ Lord Digby v. Meech, Bunb. 195 ; Delorne v. Hollingsworth, 1 Cox, 421. ' If the plalntifi" claims as heir, or under a derivative title from the mortgagor or lessor, he must, as in other cases, show how he makes out his title. 28* oo 30 OF THE BILL. maintain a bill for an account, without showing any title to the rents or tithes in question. Where, however, 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 show 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 plaintiff 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.^ The same precision in showing an interest, which is required in setting out the case of a plaintiff, is not requisite in stating that of the defendant against whom the relief is sought,^ because a plain- tiff cannot always be supposed 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.^ As a general rule, a bill must show that a defendant is in some way liable to the plaintiff's demand,^ or that he has some interest in the subject of the suit,*^ otherwise it will be liable to demurrer. Thus, where a bill was brought upon a ground of equity, by the obligee, in a bond against the heir of the obligor, alleging that the heir having assets by descent ought to satisfy the bond, a demur- rer was allowed, because the bill did not expressly charge that the heir was bound in the bond, although it did state that the heir ought to pay the debt ; '' so where a bill was brought against an assignee touching a breach of covenant in a lease, and the cove- nant, as stated in the bill, appeared to be collateral, and not run- ning with the land, did not, therefore, bind assignees, and was not stated by the bill expressly to bind assignees, a demurrer by the assignee was allowed.^ It may be considered an exception to this * See Humphrey v. Tate, 4 Ired. Eq. 220 ; Smith v. Turner, 4 Ired. Eq. 433 ; Peck V. Mallows, 10 N. Y. (6 Selden) 509. ^ Penny v. Iloper, Bunb. 115 ; see Burwell v. Coates, ibid. 129. « Story Eq. PI. § 255 ; Morgan v. Smith, 11 111. 194. * Baring v. Nash, 1 V. & B. 551. ^ Lord Red. 1C3. " Ibid. IGO; Story Eq. PI. § 262 et seq. ; Humphreys v. Tate, 4 Ired. Eq. 220. ' Crosseing v. Honor, 1 Vern. 180 ; and see Columbine v. Chichester, 2 Phil. 27; Story Ecj. PI. § 257. 8 Lord Uxbridge v. Staveland, 1 Vcs. 5G, 304 ; Story Eq. PI. § 255, 256, 257. OF THE FORM AND MATTER OF A BILL. 331 ' rule, that members or officers of a corporation aggregate may, as we have seen, be made parties to a suit against the corporation for the purposes of discovery. With respect to the other persons who are generally included amongst the exceptions to the rule, that no persons who have not an interest, or against whom a decree can- not be pronounced, can be made parties to a suit, (such as arbi- trators, attorneys or agents,) it will be seen, upon reference to what has been before stated upon 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 particular instrument which the plaintiff is entitled to have delivered up.^ 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 fre- quently the case that a plaintiff has an interest in the subject- matter of the suit which may be in the hands of a defendant, and 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, thoiigh an unsatisfied legatee has an interest in the estate of his testator, and a right to have it applied in a due 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 privity between the legatee and the debtors, who are answerable only to the personal representative of 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.^ It i.s to be observed, however, that, in cases of collusion between the debtor and the executor, or of the insolvency of the executor, 1 Ante, p. 298, 299. « See ante, 299. ^ Lord Red. 159 ; Story Eq. PI. § 178, 227, 514 ; Long v. Majestre, 1 John. Ch. 305 ; Elmslie v. M'Aulay, 3 Bro. C. C. (Perkins's ed.) 624, note (1), 627, note (a), and cases cited ; Eden Injunct. (2 Am. ed.) 354, and cases in note (a). * Bickly V. Doddington, Lord Red. 159, n. ; Monk v. Pomfret, ib. ^ Elmslie v. M'Aulay, 3 Bro. 624 ; Utterson v. Mair, 4 Bro. C. C. 270, S. C 2 Ves. J. 95 ; Beckley v. Dorrington, cited 6 Ves. 749. 332 OF THE BILL. bills by creditors or residuary legatees against debtors to a testa- tor's estate will be entertained,^ and it seems also tbat wlierc per- sons otber than the personal representative of the testator have possessed specific assets of the testator, such persons may be made parties to a suit by a creditor.^ So also, where it is desirable to have the account of the personal estate entire, a creditor may make the surviving partner of a deceased debtor a defendant to his bill, though no fraud or collusion is alleged.^ And it seems that a joint creditor may maintain a suit against the representa- tives of a deceased partner for satisfaction of his entire demand out of the assets, although the surviving partner is neither al- leged to be insolvent nor made a party to the bill.* But in this case the surviving partner will be summoned upon the subsequent proceedings in the cause.^ In Bowsher v. Watkins,^ it was deter- ^ Ibid. ; see also Doran v. Simpson, 4 Ves. 651 ; Alsager v. Rowley, 6 Ves. 749 ; Troughton v. Binkes, 6 Ves. 573-575 ; Benfield v. Solomons, 9 Ves. 86 ; 1 Mont. Eq. PI. 45, 46, note (a) •, 2 Mont. Eq. PI. 141 ; Mitf. Eq. PI. by Jeremy, 158, 159; Story Eq. PI. § 514, and note, § 178, 227, 232, note; Eden Injunct. (2d Am. ed.) 354, and cases in note (a) ; Elmslie v. M'Aulay, 3 Bro. C. C. (Perkins's ed.) 627, note (a). A special case must be made out to authorize a bill by a creditor against an administrator 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, how- ever, necessary to charge collusion between the defendants ; it is enough that the third person held all the property of the deceased under a secret trust in fraud of creditors ; insists on retaining the property to his own use, and that the adminis- trator has not proceeded against him for the space of about two years, and resists the bill by relying on the statute of limitations. Hagan v. Walker, 14 How. U. S, 29, 34, 35 ; Long v. Majestre, 1 John. Ch. 306. See Harrison v. Righter, 3 Stockt. (N. J.) 389 ; Goble v. Andross, 1 Green Ch. 66. A single creditor of an insolvent estate cannot sustain a bill against a debtor of such estate without joining other parties. Isaacs v. Clark, 13 Vermont, 657. 2 Newland v. Champion, 1 Ves. 106 ; Consett v. Bell, 1 Y. & C. 569 ; and see Barker v. Birch, 1 De Gex & Sm. 376. See Story Eq. PI. § 178, 227, 514. " Ibid. ; see also Gedge v. Traill, 1 Russ. & M. 281, n. ; Story Eq. PI. § 167, 178 ; Long v. Majestre, 1 John. Ch. 306 ; Harrison v. Righter, 3 Stockt. (N. J.) 389. « Wilkinson v. Henderson, 1 M. & K. 582 ; Story Eq. PI. § 167, 178. * Donald v. M'Rae, 9 Hare, 297. • 1 Russ. & M. 277. With reference to these cases, it may be observed that In Law V. Law, before Sir J. L. Knight Bruce, V. C, April 24, 1845, It was stated by Mr. Wright, one of the counsel in the case, that he had examined the record of the case of Newland v. Champion, in the Tower, and that in that case there were allegations of collusion between the surviving partner and the administra- trix of the deceased partner ; whereupon his Honor said : " The doctrine of Lord Hardwicke, in Newland v. Champion, was contrary to his own opinion on that OF THE FORM AND MATTER OF A BILL. 333 mined 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 nei- ther charged nor proved.^ On the other hand, in a suit for an account by a surviving partner against a debtor to the firm, it is not in general right to make the personal representative of the deceased partner a party .^ It seems that where it is necessary to allege fraud or collusion in cases of this nature, a general allegation of it in the bill will be sufficient to shut out a demurrer, although it is more correct to state the facts upon which such allegation is founded, as there is great inconvenience in joining issue upon such a general charge without giving the defendant a hint of any fact from which it is to be inferred.^ With reference to the subject of privity between the plaintiff and defendant, it is to be observed that the employment of agents or .brokers in a transaction does not interfere with the privity between the principals, so as to deprive them of their right to sue each other, immediately. Thus, where a principal transmits goods to a factor, he may sue the party who buys of that factor ; and where a bill was brought by some merchants against the defendant to discover what quantity of straw he had purchased of their agents, and for payment to them and not to the agents, a demurrer was overruled:^ and so where a merchant, acting upon a del credere commission, became bankrupt, having sold goods of his principals for which he had not paid them, and, shortly before his bank- subject, and that he thought that in the report of that case, it had been overstated. The doctrine, however, was so expressly stated in that case, that he should have great difficulty in coming to a conclusion on it." The circumstances of the case of Law V. Law, did not require him to decide the point ; and see Travis v. Milne, 9 Hare, 141 ; and Stainton v. The Carron Co. 18 Beav. 146. 1 See CoUyer Partn. (Perkins's ed.) § 366. " Haig V. Gray, 3 De Gex & Sm. 741. * Benfield v. Solomons, 9 Ves. 87 ; Ringgold v. Stone, 20 Ark. 526 ; Bryan v. Spruill, 4 Jones Eq. (N. C.) 27 ; Farnam v. Brooks, 9 Pick. 212 ; Bull v. Bull, 2 Root, 476 ; Elston v. Blanchard, 2 Scam. 420 ; Moore v. Greene, 19 How. U. S. 69 ; Small v. Boudinot, Boudinot v. Small, 1 Stockt. (N. J.) 381 ; De Louis v. Meek, 2 Greene (Iowa), 55 ; Weatherspoon v. Carmichael, 6 Ired. Eq. 143 ; Frazer v. Hoyt, 2 Strobh. Eq. 250. If fraud is relied upon, it must be substan- tially charged in the bill. Crocker v. Higgins, 7 Conn. 342 ; Hogan v. Burnett, 37 Miss. (8 Georgia) 617. * Lissett V. Reave, 2 Atk. 394. 334 OF THE BILL. ruptcy, drew bills on the vendees, which he delivered to some of his own creditors in discharge of their demands, they knowing 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 in- terested 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 plaintiff 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.^ It is to be observed, that, wliere specific relief is prayed, care must be taken to adapt such relief to the case made by the bill, as, after praying specific relief, a plaintiff cannot, at the hearing, dis- sent to the relief he has sought, and, under the general prayer^ ask relief of another description, unless the facts and circum- ^ Newman v. Godfrey, cited Lord Red. 160; 2 Bro. C. C. 332, S. C. See Story, Agency, § 418 et seq., 403 et seq. ; Lenerick v. Meigs, 1 Cowen, 645, 663, 664, 665 ; ante, 189, notes ; 2 Kent (5th ed.), 629 - 632. Ordinarily, the prin- cipal cannot avail himself, by suit in his own name, of a written contract, made between his agent and a third person, in the name of the agent ; for it is treated as a contract merely between the parties named in it, although the agent is known to be acting in that character. United States v. Parmele, 1 Paine C. C. 252 ; Clark V. Wilson, 3 Wash, C. C. 560 ; Newcomb v. Clark, 1 Denio, 226 ; Finney V. Bedford Com. Ins. Co. 8 Metcalf, 348 ; Collyer Partn. (Perkins's ed.) § 412, 653 ; Dunlap's Paley's Agency, 324, note ; Harp v. Osgood, 2 Hill, 216 ; Chitty's Contr. (8th Am. ed.), 207, in note. There are, however, exceptions to this rule, as well established as the rule itself. As in case of a written contract by a factor in his own name for the purchase or sale of goods for his principal. So in case of a policy of insurance procured by an agent in his own name for the benefit of his principal, the agent, as well as the principal, may sue thereon. See Story Agency, § 160, 161, 162, 418 et seq., § 270, 272; Brewster v. Lunt, 8 Louis. 296. " Ante, p. 319 ; Story Eq. PI. § 40, 41, 42. The prayer of a bill in Chancery is an essential part, and without its insertion, no decree can be rendered for a plaintiff. Driver v. Tatner, 5 Porter, 10. See Smith v. Smith, 4 Rand. 95. See also post, " The Prayer for Relief," in this chapter. If the plaintiff prays for re- lief in a certain capacity, this will be a test of the ground on which he seeks the aid of the Court. Sayles v. Tibbitts, 5 Rhode Isl. 79. If the allegations of a bill refer to the condition of things at the time the bill is filed, the relief afforded must be limited to that state of facts. Wiunipiseogee Lake Co. v. Young, 40 N. Ilamp. 420. OF THE FORM AND MATTER OF A BILL. 335 stances charged by the bill, will, consistently with the rules of the Court, maintain that relief.^ It is also important, in framing a bill, that everything intended to be proved should be stated, otherwise evidence cannot be ad- mitted to prove it.2 This is required in order that the defendant may be aware of what«the nature of the case, to be made against liim, is. The necessity of observing this rule has always been insisted on.^ Thus, where a bill is filed to set aside a contract entered into by an attorney for the purchase of a reversionary interest from his client, on the ground of fraud and misrepresen- tation ; the evidence adduced in support of the allegation of fraud did not substantiate the case as laid in the bill : but a transaction was disclosed in the evidence which would have raised a question of considerable importance in favor of the plaintiff, if it had been properly represented upon the pleadings ; as, however, it had not been stated in the bill, no relief was given. ^ It is, moreover, an established doctrine of the Court, that where the bill sets up a case of actual fraud, and makes that the ground of the prayer for relief, the plaintiff is not in general entitled to a decree by establishing some one or more of the facts, quite inde- pendent of fraud, but which might of themselves create a case ^ Per Lord Eldon in Hlern v. Mill, 13 Ves. 114-119, and Soden v. Soden, cited ib. 119; and see 15 & 16 Vict. c. 86, § 10. Post, "The Prayer for Re- lief" in this chapter, and notes to this point. * Gordon v. Gordon, 3 Swan. 472. See Miller v. Colton, 5 Georgia, 341 ; Par- ker V. Beavers, 19 Texas, 406 ; Bailey v. Ryder, 10 N. Y. (6 Selden), 363 ; Rowan V. Bowles, 21 111. 17 ; Laud v. Cowan, 19 Ala. 297. A trustee is not to be held for any neglect or breach of duty, which is not charged in the bill. Page v. Olcott, 28 Vermont, 465. But the plaintiff need not, and indeed should not, state in the bill any matters, of which the Court is bound judicially to take notice, or is supposed to possess full knowledge. Many of these matters are enumerated by Mr. Justice Story, in Story Eq. PI. § 24. So also by Mr. Green- leaf, in his work on Evidence, vol. 1, § 4, 5, 6. » Hall V. Maltby, 6 Price, 240. * Montesquieu v. Sandys, 18 Ves. 302 ; see also Powys v. Mansfield, 6 Sim. 565. No facts are properly in issue, unless charged in the bill ; and of course no proofs can generally be offered of facts not in the bill ; nor can relief be granted for matters not charged, although they may be apparent from other parts of the pleadings and evidence ; for the Court pronounces its decision secundum allegata et probata. Story Eq. PI. § 257; Crocket v. Lee, 7 Wheaton, 522; Jackson v. Ashton, 11 Peters, 229; James v. McKernon, 6 John. 564 ; Bairaque v. Manual^ 2 English, 516. 336 OF THE BILL. under a distinct head of Equity, from that which would be appli- cable to the case of fraud, originally stated.^ It is right here to observe tliat, independently of the quali- ties 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 will not entertain a suit where the subject-matter of the litigation is under the value of 101. f except in cases of chari- ^ Price V. Berrington, 3 Mac. & Gor. 498 ; Macquire v. O'Reilly, 3 Jones & Lat. 224; Ferraby v. Hobson, 2 Phil. 255; Glascott v. Lang, 2 Phil. 310; Wilde V. Gibson, 1 n. L. Cas. 605 ; Billage v. Southee, 9 Hare, 534 ; Tillinghast v. Champlin, 4 Rhode Isl. 173; Mount Vernon Bank v. Stone, 2 Rhode Isl. 129; Masterson v. Finnegan, ib. 316. The rule applies only where actual or moral, as distinguished from constructive fraud, is charged ; but it is sufficient that such actual or moral fraud is substantially charged, whether the word fraudulent be used or not. Tillinghast v. Champlin, uhi supra. ' The true ground of this rule is, that the entertainment of suits of small value has a tendency, not only to promote expensive and mischievous litigation, but also to consume the time of the Court in unimportant and frivolous con- troversies, to the manifest injury of other suitors, and to the subversion of the public policy of the land. Moore v. Lyttle, 4 John. Ch. 183; Story Eq. PI. § 500. This rule seems to have been of great antiquity in the Court of Chan- cery. See Story Eq. PI. § 501, and cases cited. A similar rule, it is appre- hended, prevails in the Courts of Equity in America, so far as they have been called upon to express any opinion on the subject. Story Eq. PI. § 502. See Williams v. Berry 3 Stew. & Port. 284. It was formerly held in New York, that the Court of Chancery would not take cognizance of a case, where the amount in controversy was below 10/. sterling. Moore v. Lyttle, 4 John. Ch. 185; FuUerton v. Jackson, 5 John. Ch. 276. The amount was after- wards increased in that State by statute to the sum of one hundred dollars. 2 Rev. Stats. New York, 173, § 37. See Vredenburg v. Johnson, 1 Ilopk. 112; Mitchell V. Tighe, 1 Hopk. 119; Smets v. Williams, 4 Paige, 364. No such statute exists in Massachusetts, but a similar principle is applied. Cummings v. Barrett, 10 Gushing, 190. The value of the matter in dispute should appear by the record. Watson v. AVells, 5 Conn. 468. But a bill for the specific perform- ance of a contract to convey land need not contain an averment that the value of the land exceeds $100. Church v. Ide, 1 Clarke, 494. The jurisdic- tion of the Court does not, however, depend upon the amount that may ulti- mately be found due to the plaintitf, but upon the claim stated by him. Bradt V. Kirkpatrick, 7 Paige, 62; Whitecotton o. Simpson, 4 J. J. Marsh. 12; Judd v. Bushnell, 7 Conn. 205; Skinner y. Bailey, 7 Conn. 496; Wheat v. Griffin, 4 Day, 419; Douw v. Sheldon, 2 Paige, 323; Bailey r. Burton, 8 Wendell, 395. These provisions seem to apply, liowcvcr, only to cases of bills for relief, and not to cases of bills for discover?/ merely, (ioldey v. Beeker, 1 Edw. Ch. 271 ; Schrcep- pel V. Redfield, 5 Paige, 245. At the present time, in New York, there is no limitation to the amount in con- OF THE FORM AND MATTER OF A BILL. 337 ties,^ or of fraud,^ or of bills to establish a right, as in the case of 6s. claimed to be due as an Easter offering.^ 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 en- tertained for the recovery of ancient quit-rents, though very small, viz. 2s. or 38. per annum.^ It seems that if a bill is brought for a demand which, by the rule of the Court, cannot be sued for, the defendant may either demur to it, on the ground that the plaintiff'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 neitlier 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 lOZ., the Court will dismiss the bill.*^ Thus, in the time of Lord Har- court, upon a bill being brought relating to tithes, it was clearly admitted that the plaintiff' had a right to some tithes of the defend- ant, but as the tithes which were due appeared to be only of the value of 5^., the Lord Chancellor dismissed that bill at the hear- ing;^ and in Brace v. Taylor,^'^ a similar objection was taken, at the hearing, and alio wed. ^^ A bill must not only be for a subject which it is consistent with troversy required to give jurisdiction in actions of an equitable nature, the same having been abolished by construction of the Constitution of 1846, and the code of procedure. Sarsfield v. Van Vaughner, 15 Abbott Pr. Kep. 65. * Anon., Eq. Ca. Ab. 75, Margin. « Bunb. 17. » 4 Bro. P. C. 314. ♦ Eq. Ca. Ab. 75. * Cocks V. Foley, 1 Vern. 360. « Fox V. Frost, Rep. T. Finch, 253. ' Ros. 47, 356. « Cowp. Eq. Pi. 166. • Cited in Brace v. Taylor, infra. ^o 2 Atk. 253. " If it appear on the face of the bill, that the matter in dispute, exclusive of costs, does not exceed the amount to Avhich the jurisdiction of the Court is limit- ed, the defendant may either demur, or move to have the bill dismissed with costs ; or if it does not appear on the face of the bill, it may be pleaded in bar of the suit. Smets v. Williams, 4 Paige, 364 ; McElwain v. Willis, 3 Paige, 505, S. C. on appeal, 9 Wendell, 548 ; Schrceppel v. Redfield, 5 Paige, 245 ; Bradt v. Kirkpatrick, 7 Paige, 62. By "exclusive of costs" above, is meant the costs of the suit in Chancery. Van Tyne v. Bunce, 1 Edw. Ch. 583. VOL. I. 29 338 OF THE RILL. the dignity of the Court to entertain, but it must also be brought for the whole subject. Tiie Court will not permit a bill to be brought for part of a matter only,^ so as to expose a defendant to be harassed by repeated litigations concerning the ^ame 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, pre- vent future litigation concerning it. Thus, it will not allow a plaintiff who has two distinct claims upon 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 litigation. 2 In Purefoy v. Purefoy,^ where an heir, by his bill, prayed an account against a trustee of two several 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 a part of a matter only, which is proper for one entire account, because the plaintiff shall not split causes and make a multiplicity of suits." And so where there are two mortgages, and more money has been lent upon one of them than the estate is worth, the heir of the mortgagee cannot elect to re- deem one and leave the heavier mortgage unredeemed, but shall be compelled to take both.^ Upon the same principle it is held, 1 Lord Red. 1 6. * Story Eq. PI. § 287. So, at law, a plaintiff cannot split an entire cause of action, so as to maintain two suits upon it, without the defendant's consent. If he attempt so to do, a recovery in the first suit, though for less than the whole demand, is a bar to the second. Ingraham v. Hall, 11 Serg. & R. 78; Crips v. Talvande, 4 M'Cord, 20; Smith v. Jones, 15 John. 229; Willard v. Sperry, 16 John. 121; Avery ?;. Fitch, 4 Conn. 362; Vance u. Lancaster, 3 Hayw. 130; Colvin V. Corwin, 15 Wendell, 557 ; Strike's case, 1 Bland, 95; James v. Law- rence, 7 Har. & John. 73 ; Stevens v. Lock wood, 13 Wendell, 644. See also Guernsey v. Carver, 8 Wendell, 492, and the remarks on it in Badger v. Tit- comb, 15 Pick. 415. In this last case it was said that " as the law is, we think it cannot be maintained, that a running account for goods sold and delivered, money loaned, or money liad and received, at diU'ercnt times, will constitute an entire demand, unless there is some agreement to that effect, or some usage or course of dealing from which such an agreement or understandinarton, p. 34 ; Story Eq. PI. § 31, 33, and notes. " Ante, p. 319. * Story Eq. PI. § 32, 32 a, 33, and note. By the Equity Rules of the Supreme Court of the United States, the plaintiff is at liberty to omit, at his option, what is commonly called the charging part of the bill, setting forth the matters or ex- cuses which the defendant is supposed to intend to set up, by way of defence to OF THE FORM AND MATTER OF A BILL. 377 though the comparative simplicity of modem pleading will dimin- ish most materially the occasions for its iise.^ Bills used formerly to contain a precise averment of jurisdiction in the Court. This is now obsolete, and was never absolutely re- quisite.^ the bill. And the plaintlfT may, in the narrative or stating part of his bill, state and avoid, by counter averments, at his option, any matter or thing, which he supposes will be insisted upon by the defendant, by way of defence or excuse, to the case made by the plaintiff for relief Rule 21. So in N. Hampshire. Rule in Chancery 3, 38 N. Hamp. 605. Rule 4, of Chancery Practice in Massachusetts, provides that the plaintiff, when his case recjuires it, may allege by way of charge, any particular fact, for the purpose of putting it in issue. > See Aiken v. Ballard, Rice Eq. 13; M'Crea v. Purmort, 16 Wendell, 460; Hawley v. Wolverton, 5 Paige, 522 ; Mechanics' Bank v. Levy, 3 Paige, 606 ;. Stafford v. Brown, 4 Paige, 88; Story Eq. PI. § 31 ; Parker v. Carter, 4 Munf. 273 ; 1 Hoff. Ch. Pr. 42. If the plaintiff wishes to obtain a discovery of facts to anticipate and rebut the defence which may be set up by the defendant, he should in the charging part of the bill state the anticipated defence as a pretence of the defendant, and then charge the real facts to lay a foundation for the dis- covery which is sought. Stafford v. Brown, 4 Paige, 88. " Another very important rule," says Mr. Justice Story, " as to the frame of bills, seems now established in England ; and that is, if the bill means to rely upon any confessions, conversations, or admissions of the defendant, either writ- ten or oral, as proof of any fact charged in the bill, (as, for example, of fraud,) the bill must expressly charge what such confessions, conversations, or admissions are, and to whom made, otherwise no evidence thereof will be admitted at the hearing." " Whether the like rule will be allowed to prevail in America, may be deemed open to much doubt." See Story Eq. PI. § 265 a, and the cases cited in notes, for a more full statement of the rule and the reasons of it. In Smith v. Burnham, 2 Sumner, 612, it was held that the confessions, admissions, and con- versations of the defendant need not be expressly charged in a bill in Equity, in order to entitle the plaintiff to use them in proof of facts charged, and in issue therein. See Bishop v. Bishop, 13 Alabama, 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 much as if he makes a false statement in the stating part. Smith v. Clark, 4 Paige, 368. - See Story Eq. PI. § 34; Botsford v. Burr, 11 Conn. 369. By the 21st Equity Rule of the Supreme Court of the United States, Jan. Term, 1842, the plaintiff in his bill, shall be at liberty to omit, at his option, what is commonly called the jurisdiction clause of the bill, viz., " that the acts complained of are contrary to Equity," &c. So in New Hampshire. Rule in Chancerj-, 3, 38 N. Hamp. 605. Appdx. In all bills in Equity in the Courts of the United States, 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 Mason, 435 ; Story Eq. PI. 26, note; Bingham v. Cabot, 3 Dall. 382; Jackson v. Ashton, 32* 378 OF THE BILL. 6. Interrogating Part. The interrogating part of a bill was an almost invariable accom- paniment to a bill, until the recent statute to amend the practice of the Court of Chancery .^ It will be recollected that it is now precisely enacted, " that the bill of complaint 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 & 16 Yict. 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 plaintiff in any suit in the said Court commenced by bill may, if he requires an answer from any defendant thereto, file in the Record Office of the said Court interrogatories for the ex- amination 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 copy of such interrogatories, or of such of them as shall be appli- cable to the particular defendant or defendants ; and no defendant shall be called upon or required to put in any answer to a bill un- 8 Peters, 148 ; Story Eq. PI. § 492 ; Vose v. Philbrook, 3 Story, C. C. 335. See Louisville and R. R. Co. v. Stetson, 2 Howai-d, S. C. 497 ; Winnipiseogee Lake Co. V. Worster, 9 Foster (N. H.), 433, 443, 444. For a form of the averment of jurisdiction, see Story Eq. PI. § 34, in note. 1 Story Eq. PL § 35-39, and notes. A bill which wholly omits the interroga- tory part, is said to be defective in Shedd v. Garfield, 5 Vermont, 39. But it is not regarded as absolutely necessary by Mr. Justice Story, Eq. PI. § 38, though often highly useful to sift the conscience of the defendant, and almost universal in pracSce. lb. See also Eberly v. Gross, 21 Penn. (9 Harris) 251. Rule 4, of Chancery Practice in Massachusetts, requires that the bill shall conclude with the general interrogatory. But the plaintiff, when his case requires it, may propose specific interrogatories. See Belknap v. Stone, 1 Allen, 572. In New Hampshire, " the prayer for an answer and for answers to interrogatories, except where the plaintiff relies on the discovery of the defendant, may be omitted." Rule of Chancery, 3, 38 New Ilamp. 605, Appx. In Maine, "a general interrogatory only shall be introduced, and it shall be sufficient to re- quire a full answer to all the matters alleged." Rule 1, 37 Maine, 581, Appx. As to what is, or amounts to, the general interrogatory, see Ames v. King, Bristol Co. Massachusetts, Oct. Term, 1864. 2 Ante, p. 319. * It will be sufficient if the interrogatories are left at the solicitor's office with- out being delivered to him personally ; Bowen v. Price, 2 De Gex, Mac. & Gor. 899. OF THE FORM AND MATTER OF A BILL. 379 less 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 further 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 circumstances of each particular case may require. " In cases in which the plaintiff 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 appearance 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 plaintiff 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 in- terrogatories 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 examined 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 properly writ- ten, are to mark the same as an office copy. " If any defendant to a suit commenced by bill do not appear 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 his examination, the plaintiff" may deliver a copy of such interrogatories so examined and marked as aforesaid, to the defendant, at any time after the time allowed to such defendant to appear and before his appearance in person or by his own solicitor ; or the plaintiff may deliver a copy of such interrogatories, so ex- amined and marked as aforesaid, to the defendant or his solicitor, after the appearance of such defendant in person 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 demurring alone, within fourteen days from the delivery to him or his solicitor of a copy of the in- terrogatories which he is required to answer ; but the Court shall 380 OF THE BILL. have full power to enlarge the time, from time to time, upon ap- plication being made to the Court for that purpose. " After the time allowed by Order 16, for filing interrogatories for the examination of any defendant, no interrogatories are to be filed for the examination of such defendant, without special leave of the Court, to be applied for upon notice of motion." The form of interrogatories referred to in the 15th Order, is as follows : — " In Chancery. John Lee . . . . . . . Plaintiff. James Styles \ and > Defendants. Henry Jones. ) Interrogatories for the examination of the above-named defend- ants in answer to the plaintiff's bill of complaint. " 1. Does not the defendant Henry Jones claim to have some charge upon the farm and premises comprised 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, i-f 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, hicumbrances or incumbrance ; the date, na- ture, and short effect of the security ; what is now due thereon ; and who is or are entitled thereto respectively ; and when and by whom, and in what manner, every such mortgage, charge, or in- cumbrance was created. " The defendant James Styles is required to answer all these interrogatories. " Tiie defendant Henry Jones is required to answer the inter- rogatories numbered 1 & 2.^ " Y. Y." (name of counsel.) ^ By the former English practice the interrogatories, which each defendant was required to answer, were specified in a note at the foot of the bill, and such is the rule adopted by the Supreme Court of the United States; 41st Equity OF THE FORM AND MATTER OF A BILL. 381 The form of interrogatories given is so precise, that it is scarcely necessary to refer to the former practice on the subject. Of course a defendant is not bound to answer anything in tlic bill to which he is not precisely interrogated.^ It was always the rule that the Rule of the Supreme Court of the United States, January Term, 1842; Story Eq. n. § 8-4 7, note. The 98th, 41st, 42d, 43d, and 44th of said Equity Rules declare, that " It shall not hereafter be necessary to interrogate a defendant specially and particularly upon any statement in the bill, unless the plaintiff de- sires to do so to obtain a discovery," in which case " the interrogatories contained in the interrogating part of the bill shall be divided as conveniently as may be from each other, and numbered consecutively 1, 2, 3, &c., and the interrogatories which each defendant is required to answer, shall be specified in a note at the foot of the bill, in the form and to the effect following ; that is to say. The de- fendant (A. B.) is required to answer the interrogatories numbered respectively 1, 2, 3, &c. ; and the office copy of the bill taken by each defendant shall not contain any interrogatories, except those, which such defendant is so required to answer, unless such defendant shall require to be furnished with a copy of the whole bill." — " The note at the foot of the bill, specifying the interrogatories, which each defendant is required to answer, shall be considered and treated as part of the bill, and the addition of any such note to the bill, or any alteration in or addition to such note after the bill is filed, shall be considered and treated as an amendment of the bill." " Instead of the words of the bill now in use, pre- ceding the interrogating part thereof, and beginning with the words, To the end, therefore, there shall hereafter be used words in the form and to the effect fol- lowing : To the end, therefore, that the said defendants may, if they can, show why your orator (the plaintiff) should not have the relief, hereby prayed, and may upon their several and respective corporal oaths, and according to the best and utmost of their several knowledge, remembrance, information, and belief, full, true, direct, and perfect answer make to such of the several interrogatories hereinafter numbered and set forth, as by the note hereunder written, they are respectively required to answer; that is to say, ' 1. Whether, &c. ; 2. Whether, &c.' " " A defendant shall be at liberty, by answer, to decline answering any interrogatory or part of an interrogatory, from answering which he might have protected himself by demurrer ; and he shall be at liberty so to decline, notwith- standing he shall answer other parts of the bill, from which he might have pro- tected himself by demurrer." These rules are borrowed from the former English Rules in Chancery upon the same subject. Story Eq. PI. § 847, note. * In Massachusetts, Chancery Practice, Rule 4, requires that the bill should conclude with a general interrogatory ; but, when the case requires it, the plain- tiff may propose specific interrogatories. Rule 5 requires that upon the general interrogatory in the bill, the defendant shall be required to answer fully, directly, and particularly to every material allegation in the bill, as if he had been thereto particularly interrogated. See Methodist Episcopal Church v. Jaques, 1 John. Ch. 65. The practice in New Hampshire conforms with the above rule in Massa- chusetts. Miles V. Miles, 7 Foster (N. H.), 440, and such is understood to be the practice where there is no rule on the subject. lb. 445 ; see Story Eq. PI. § 38 ; 382 OF THE BILL. interrogatories must in all cases be confined to the substantive charge or allegation, and that the plahitiff 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 Ptelief. The bill concludes with a prayer,^ specifically for the relief which the plaintiff may conceive himself entitled to, and also for general relief.^ This statutory direction does not alter the rules Hagthorp v. Hook, 1 Gill & John. 270; Salmon v. Claggett, 3 Bland, 125. The o-eneral interrogatory is in substance as follows, viz. : " 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," &c. See Oli- ver V. Ames, Bristol Co. Massachusetts, Oct. Term, 1864. 1 James v. M'Kernon, 6 John. 543; Woodcock v. Bennett, 1 Cowen, 734; Mechanics' Bank v. Levy, 3 Paige, 606 ; Consequa v. Fanning, 3 John Ch. 596 ; Kisor V. Stancifer, Wright, 323. But a variety of questions may be founded on a single charge, if they are relevant to it. Story Eq. PI. § 37. It may be noticed here, that in Attorney-General v. Whorwood, 1 Vesey,'524, where interroga- tories in a bill were directed to particular facts which were not charged in the preceding part, and the defendant, 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." 1 Vesey, 538 ; Story Eq. PI. § 36. * 15 & 16 Vict. c. 86, § 10, ante, p. 321. * The latter can never be properly and safely omitted ; because, if the plain- tiff should mistake the relief, to which he is entitled, in his special prayer, the Court may yet afford him the relief to which he has a right, under the prayer of general relief, provided it is such relief as is agreeable to the case made by the bill. Mitford, Eq. PI. by Jeremy, 38, 45; Coop. Eq. PI. 13, 14 ; English v. Fox- all, 2 Peters, 595 ; Colton v. Ross, 2 Paige, 396 ; Driver v. Fortner, 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 Alabama, 324. Relief not specifically prayed, is within the general relief. Beaumont v. Boultbee, 5 Sumner's Vesey, 485 ; Story E(i. PI. § 41, note. This, though a general rule, is not universal. As when an injunction is wanted, a special prayer is necessary. Story Eq. PI. § 41 ; Eden, Injunc. (2d Amer. ed.) 73, 74 ; 2 Story Eq. Jur. § 862, 863 ; Walker v. Devereaux, 4 Paige, 248. If there is no prayer of general relief, then if the plaintiff should mistake the relief to which he is entitled, no other relief can be granted to him. and his suit must fail, at least unless an amendment of the prayer is obtained. Story Eq. PI. § 41 ; Driver v. Fortner, 5 Porter, 10; Thomason v. Smith, 7 Porter, 144 ; Peck v. Peck, 9 Yerger, 301. For a form of prayer for OF THE FORM AND MATTER OF A BILL. 383 in force previously to the act. It will, therefore, be convenient shortly to refer to the former practice on the subject. The rule was, that when the ])rayer did not extend to embrace all the relief to which the plaintiff might at the hearing show a right, the defect in the relief might be supplied under the general prayer, provided that such relief were consistent with that specifically i)rayed, as well as with the case made by the bill, for the Court would not suffer a defendant to be taken by surprise, and permit a plaintiff to neglect and pass over the prayer he had made, and take another decree, even though it were according to the case made by his bill.i Therefore, in Soden v. Soden,^ where a bill was filed against relief in a bill, see Story Eq. PI. § 40 note, 41 note ; Colton v. Ross, 2 Paige, 396, and cases tliore cited. In a bill between partners, a prayer that the defendant may be held to render an account of all moneys and effects of the firm received by him, and of all other matters relating to the concern, is equivalent to a prayer for general relief. Mil- ler V. Lord, 11 Pick. 11. In New Hampshire, the bill may conclude, " and thereupon the plaintiff prays," setting forth the special relief to which he supposes himself entitled, " and for such other relief as may be just." If an injunction or other special order, pending tlfe suit, is required, it may be specially asked for. Kule of Chancery, 3, 38 N. Hamp. 605, 606. So also in 21st Equity Rule of the United States Courts. ' A particular prayer for relief, although very proper and convenient, is not essential, since under a general prayer for relief a plaintiff may pray at the bar a specific relief not particularly prayed for in the bill, if otherwise entitled to the same. Wilkinson v. Beal, 4 Madd. 408 ; Cook v. Martyn, 2 Atk. 2 ; Grimes v. French, 2 Atk. 141 ; Colton v. Ross, 2 Paige, 396 ; Foster v. Cooke, 1 Hawks, 609; Lloyd v. Brewster, 4 Paige, 537 ; Lingan v. Henderson, 1 Bland, 252; Driver v. Forner, 5 Porter, 10 ; Thompson v. Smithson, 7 Porter, 144 ; Peck v. Peck, 9 Yerger, 301 ; Allen v. Coffman, 1 Bibb, 469 ; Wilkin v. Wilkin, 1 John. Ch. Ill ; Cook V. Mancius, 5 John. Ch. 89 ; Brown v. McDonald, 1 Hill, 302; Gibson V. M'Cormick, 10 Gill & John. 66 ; Townsend v. Duncan, 2 Bland, 45; Marine and Fire Ins. &c. v. Early, R. M. Charlt. 279 ; Repplier v. Buck, 5 B. Monroe, 96, 98 ; Thomas v. Ilite, 5 B. Monroe, 593. The relief given under the general prayer must be agreeable to the case made by the bill. Story Eq. PI. § 41 ; Chalmers v. Chambers, 6 Har. & John. 29 ; Hobson v. ]\I'Artliur, 16 Peters, 182; Read v. Cramer, 1 Green Ch. 277; Franklin w, Osgood, 14 Jolin. 627 ; Eng- lish V. Foxall, 2 Peters, 595 ; Kibler v. Whiteman, 2 Harr. 401. For the Court ■will grant such relief only as the case stated will justify, and will not ordinarily be so indulgent as to permit a bill framed for one purpose to answer another, es- pecially, if the defendant may be surprised or prejudiced thereby. If, therefore, the plaintiff doubts his title to the relief he wishes to pray, the bill should be framed with a double aspect, so that, if the Court should decider against him in * Cited by Lord Eldon in Hiern v. Mill, 13 Ves. 119. 384 OF THE BILL. a woman to compel her to elect between the provision made for her by a will, and that to which she was entitled under a settle- ment, and the case made by the bill was solely calculated to call upon her to elect, it was held, that a declaration that she had elected, so as to conclude 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 bilP was filed by a person in the character of mortgagee, praying a sale under a trust, to which it appeared he was not entitled, the Court would not permit 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.^ Upon the same principle, where a vendor filed a bill for a specific performance against a purchaser, who had been in possession, under the contract, for several years, one view of the case, it may yet aflford him assistance in another. Story Eq. PI. § 42 ; Mitford Eq. PI. by Jeremy, 38, 39 ; Colton v. Ross, 2 Paige, 396 ; Lloyd v. Bre-wster, 4 Paige, 537 ; Walker v. Devereaux, 4 Paige, 229 ; Foster v. Cook, 1 Hawks, 509 ; Lingan v. Henderson, 1 Bland, 252 ; Pleasants v. Glasscock, 1 Smedes & Marshall, 17, 24, 25 ; Kibler v. Whiteman, 2 Harrington, 401 ; Bebee V. Bank of New York, 1 John. 559. And where there is no obstruction to the particular relief prayed, the plaintiff cannot abandon that, and ask a different decree under the general prayer. Allen v. Coffman, 1 Bibb, 469 ; Pillow v. Pil- low, 5 Yerger, 420 ; Thompson v. Smithson, 7 Porter, 144 ; Foster v. Cooke, 1 Hawks, 509 ; Colton v. Ross, 2 Paige, 396 ; Chalmers v. Chambers, 6 Har. & John. 29 ; Gibson v. M'Cormick, 10 Gill & John. 66; Townsend r. Duncan, 2 Bland, 45 ; King v. Rossett, 2 Younge & Jer. 33. See Bailey v. Benton, 8 Wen- dell, 339; 1 Hoff. Ch. Pr. 49, and note; Read v. Cramer, 1 Green Ch. 277- Pleasants v. Glasscock, 1 Smedes & M. Ch. 1 7. In Treadwell v. Brown, 44 N. Hamp. 551, it was held, that under the prayer for general relief, the plaintiff may have such relief as he is entitled to, without regard to any defect in the prayer for special relief, 26 Law Rep. 48 ; Franklin V. Greene, 2 Allen, 519 ; Danforth v. Smith, 23 Vermont, 247 ; provided it does not conflict with that specifically prayed for. Stone v. Anderson, 6 Foster (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 are not sufficient for any other than the special relief, the bill is not bad for multifariousness, but the special relief will be granted. Mayne v. Griswold, 3 Saudf Sup. Ct. 4G3. * Palk V. Lord Clinton, 12 Ves. 48; see also Jones v. Jones, 3 Atk. 110; Grimes v. French, 2 Atk. 141 ; Story Eq. PI. § 42. ^ A bill was filed to have a mortgage deed recorded, which had been omitted to be recorded within six months, in which was a general prayer for relief. A decree of sale of the mortgaged ])remises which was held not to be within the re- lief prayed by the bill. Chalmers v. Chambers, 6 Harr. & John. 29. OF THE FORM AND MATTER OF A BILL. 385 but failed in establishing his right 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 willing to pay a fair rent.^ And so where a bill was filed for the specific perform- ance of a wriUen agreement, and parol 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.^ The rule with regard to the nature of the relief which a plaintiff may have under the prayer for general relief, was laid down by Lord Eldon, in Hiern v. Mill.^ 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 these facts will sustain under the general prayer, but he cannot desert specific relief prayed, and under the general prayer ask relief of another description, unless the facts and circumstances charged by the bill will, 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 incumbrance, and it prayed an account, and in default of payment a conveyance of the estate ; and although it charged the purchaser with notice, it did not pray any specific relief against liim individually. Lord Eldon, how- ever, thouglit that the relief asked against him at the liearing was consistent with the case made by the bill, and accordingly decreed an account to be taken of what was due to the plaintiff by the mortgagor, to be paid by the purchaser, who was to have his elec- * Williams v. Shaw, 3 Russ. 1 78, n. * Legal V. Miller, 2 Ves. 299 ; see also Mortimer v. Orchard, 2 Ves. jr. 243 ; Legh V. Haverfield, 5 Ves. 452 ; lianbury v. Litchfield, 2 M. & K. G29 ; Tiigh- man v. Tilghman, 1 Baldwin, 464. But although, in such a case, the plaintiff cannot have a decree for a different agreement 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. Clayton, 13 Ves. 546. The old course required a cross-bill, but the prac- tice now is to decree a specific performance at the instance of the defendant, upon the offer by the plaintiff in his bill to perform the agreement specifically on his part. Ibid. ; see also Gwynn v. Lethbridge, 14 Ves. 585. Part performance of a contract within the Statute of Frauds must, in order to entitle a party to re- lief, be expressly stated in the bill. See Meach v. Stone, 1 D. Cliip. 182, ' 13 Ves. 119. * Ante, 384, note. VOL. I. 33 386 OF THE BILL. ' tion to pay the money and keep the estate. And so, in Taylor v, Tabrura,^ 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, ad- mitting that they had both acted in the trusts, a decree was made against the two, charging them both with the loss occasioned by the breach of trust. It is to be observed that, in order to entitle a plaintiff to a de- cree 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 in- troduced into the bill for the purpose of showing a claim to relief, and not for the mere purpose of corroborating the plaintiff's right to the specific relief prayed, otherwise the Court would take the defendant by surprise, which is contrary to its principles ; there- fore, 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 property during the time it was in the vendee's possession, although the bill did contain charges of mismanagement, which, however, had been introduced, not with the view to obtain compensation, but to establish the fact of acceptance of title by the defendant.^ As a general rule, when a defendant is sought to be charged with interest in respect of balances due from him, the prayer for relief should be framed precisely to meet the case.^ Where, how- ever, from peculiar circumstances, interest was not properly due at the time the bill was filed, and a right to interest has subse- quently accrued, the Court has, upon further directions, directed interest to be computed, although there was no prayer to that effect 1 6 Sim. 281. * Stevens v. Guppy, 3 Russ. 171 ; and for further illustration of this subject, see Roche V. Morgell, 2 Sch. & Lef. 721 ; Ferraby v. Ilobson, 2 Phil. 255 ; Chapman V. Chapman, 13 Beav. 308; ante, 384, note. So where a bill was filed for the specific execution of a contract for the purchase of land alleged to be evidenced by a written memorandum, and that allcgaliou was not sustained by the proof, it was held, that the plaintiiF could not, under the prayer for general relief, obtain compensation for improvements upon the lands. Smith v. Smith, 1 Ired. Kq. 83. On a bill to rescind a contract, the Court cannot decree a specific execution. Rochester i'. Anderson, Litt. Sel. Ca. 146. * Weymouth v. Boyer, 1 Ves. jr. 41G. OF THE FORM AND MATTER OF A BILL. 387 in the bill. Thus, in Turner v. Turner,^ interest was, by order on further directions, directed to be computed upon the balance 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 cir- cumstances which arose subsequently. This subject will be again mentioned in the subsequent Chapter on Further Directions. Under the old practice, where a plaintiff had erred in the relief prayed for, he has been allowed to amend his bill. Now, as the Court has greater latitude given to it at the hearing, it may be considered certain that such an indulgence will be permitted to prevent an accidental error defeating the ends of justice.^ Although the Court is generally 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 laid down that an infant plaintiff may have a decree upon any matter arising upon the state of his case, though he has not par- ticularly 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 paying the same regard to the propriety or im- propriety in the prayer 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.^ 1 1 Jac. & W. 43 ; and see Lloyd v. Jones, 12 Sim. 491 ; Hollingswortli v. Skakeshaft, 14 Beav. 497. ^ Beaumont v. Boultbee, 5 Ves. 485 ; Palk v. Lord Clinton, 12 Ves. 63. But the instances, in which this will be done, are confined to those where it appears, from the case made by the bill, that the plaintiff is entitled to relief, although different from that sought by the specific prayer. Deniston v. Little, 2 Sch. & Lef. 11, n. ; Lindsay v. Lynch, 2 Sch. & Lef. 1 ; WooUam v. Hearn, 7 Vesey, 171 ; Stevens v. Guppy, 3 Russ. 171. In Read v. Cramer, 1 Green Ch. 277, a bill was filed for rehef on the ground of fraud, and relief was granted on the ground of mistake. ' Stapilton v. StE\pilton, 1 Atk. 2. See Gerrard v. Grinling, 2 Swaust. 250 ; Story Eq. PI. § 394, and cases to this point in note. * Attorney-General v. Jeanes, 1 Atk. 355. * Bennett v. Wade, 2 Atk. 325 ; Lord Red. 39 ; Story Eq. PL § 40, and cases in note. If the plaintiff doubts his title to the relief he wishes to pray, the bill 388 OF THE BILL. With respect to the prayer for general relief, although, as has been before stated, it may, in most cases, where it is not preceded by a specification of the particular relief sought, be made the foun- dation for a prayer at the bar for the particular relief to which the plaintiff's case may entitle him, yet there are cases in which it ap- pears necessary that some specific relief should be prayed against the defendant, otherwise the bill will be liable to demurrer. Thus, in some cases of fraud, where no other relief can be given against a party deeply involved in the fraud charged by the bill, the pay- ment of the costs of the suit by that party ought to form the sub- ject of a specific prayer ; for, unless they are so prayed, the Court cannot make an order upon him for payment, and the bill will be liable to a demurrer on his behalf.^ 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. Upon this principle, where a bill should be framed with a double aspect, so that, if the Court should decide against him in one view of the case, it may yet afford him assistance in another. Story Eq. PI. § 42 ; Colton v. Ross, 2 Paige, 396 ; Lloyd v. Brewster, 4 Paige, 537 ; Mitford Eq. PI. by Jeremy, 39 ; Cooper Eq. PI. 14 ; M'Connell v. M'Connell, 11 Vermont, 290; Strange v. Watson, 11 Alabama, 324; Shields v. Barrows, 17 How. U. S. 130; Gerrish v. Towne, 3 Gray, 86, 87; Murphy y. Clark, 1 Smedes & M. Ch. 221 ; Stein v. Robertson, 30 Ala. 286. The bill may not only be framed with a double aspect, but may be so amended as to be of that character. The alternative case stated must, however, be the foundation for pre- cisely the same relief. When the prayer of a bill is that the Court will set aside a contract on the ground of fraud, the plaintiff cannot amend by substituting a prayer, that the Court would either set it aside on the ground of fraud, or, if it was valid, would enforce its specific performance. Shields v. Barrow, 1 7 How. U. S. 130. See Pensenneau v. Pensenneau, 22 Mis. (1 Jones) 27. A prayer, assigning several reasons for vacating a deed, is considered as so many separate prayers, and if one reason be valid, it is error to reject the whole prayer. American Exchange Bank v. Iiilocs, 7 Maryland, 380. In New York, legal redress and equitable relief may be demanded in the same complaint ; and either, or both, if the circumstances of the case permit, may be afforded by the Court ; New York Ice Co. v. N. W. Ins. Co. 23 N. Y. 357 ; but, in order to enti- tle a party to one or the other, he must ask it specifically in his complaint. Ste- venson V. Buxton, 15 Abbott Pr. Rep. 355. * Le Texier v. The Margravine of Anspach, 15 Ves. 159, 164. * 1 Story Eq. Jur. § 64 c ; Bates v. Wheeler, 1 Scam. 54 ; Cooper v. Brown, 2 M'Lean, 495 ; Dougherty v. Ilumpson, 2 Blackf. 273. OF THE FORM AND MATTER OF A BILL. 389 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 effect of such submission will be to entitle the defendant to a decree, even though the plaintiff should not be able to make out his own title to relief, in the form prayed by his bill.^ Upon the same principle, it has always been 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.^ 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 plaintiff to pay to the defendant what is justly due to him ; so that if a bill be filed, praying that an instrument or security given for an usurious consideration, be delivered up to be cancelled, the only terms upon which a Court of Equity will interfere are those of the plaintiff paying to the defendant what is bond fide due to him;^ and if the plaintiff does not offer to do so by his bill, the defendant may demur.* It seems that there is no difference in this respect between a cross-bill and an original bill.^ * Stapylton v. Scott, 13 Ves. 425 ; Fifer. Clayton, ib. 546 ; Green v. CovIUaud, 10 CaL 317 ; McKleroy v. Tulane, 34 Ala. 78 ; Story Eq. PI. 394, note ; Bell v. Thompson, 34 Ala. 633 ; Oliver v. Palmer, 11 Gill & J. 426 ; Hatcher v. Hatcher, 1 McMuUan Cli. 311. ^ Inman v. Wearing, 3 De Gex & Sm. 731 ; 1 Smith Ch. Pr. (2d Amer. ed.) 86 ; Wells V. Strange, 5 Georgia, 22. * It is against conscience, that the borrower should have full relief, and at the same time pocket the money, which may have been granted at his own mere so- licitation. He who seeks equity 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 Qi) ; Jordon v. Trumbo, 6 Gill & J. 103 ; Fulton Bank v. Beach, 1 Paige, 429 ; Craw- ford V. Harvey, 1 Blackf. 382; M'Daniells v. Barnum, 5 Vermont, 279; 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. Sav- age, 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 ; S. C. 1 Fonb. T. Eq. 25 ; Scott v. Nesbit, 2 Bro. C. C. 641 ; S. C. 2 Cox, 183 ; Whitmore v. Francis, 8 Price, 616. » Mason v. Gardiner, 4 Bro. C. C 426 ; Story Eq. PI. § 630. 33* 890 OF THE BILL. 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 anything in the nature of a forfeiture. As, however, the 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 dis- covery he seeks.i The effect of the waiver, in such cases, is to en- title the defendant (in case the plaintiff should proceed upon the discovery, which he has elicited by his bill, to enforce the penalty or forfeiture), to come to the 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, &c., and the defendant demurred, because, although 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 lias been held, that a demurrer will lie to a bill by a reversioner for a discovery of an assignment of a lease without license, if it does not expressly waive the forfeiture.^ 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 1 In Mason v. Lake, 2 Bro. P. C. 495, leave appears to have been given to amend a bill, by waiving penalties and forfeitures after a demurrer, upon that ground allowed. ^ Lord Uxbridge v. Staveland, 1 Ves. 56. * Attorney-General v. Vincent, Bunb. 192. * Lord Uxbridge v. Staveland, ubi supra. 5 The bill used to conclude in England with an elaborate prayer for process. But all that is now required in the present English practice is, that the names of the defendants should be set forth, and a note appended with the names of the solicitors for the plaintiff". Ante, 321. In New Hampshire, the prayer for process, unless some special process or order shall be required, may be omitted. Rule of Chancery, 3, 38 New Hamp. 605. The want of a prayer for process renders the bill defective in New Jersey. Wright v. Wright, 4 Halst. Ch. (N. J.) 153. » See Belknap v. Stone, 1 Allen, 572. OF THE FORM AND MATTER OF A BILL. 391 pray by liis bill that such a party, upon being served with a copy of the bill, may be bound by all the proceedings in the cause ; ^ but with respect to all other defendants the process prayed, in or- dinary cases, is a writ of subpoBna; and this part of the prayer is commonly as follows : — May it please your lordship, the prem- ises considered, to grant unto your orator his Majesty's most gra- cious ivrit \or ivrits'] of subpoena, 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 pain therein to be limited, personally'^ to be and appear before your lordship in this honorable Court ; and then and there, full, true, direct, and perfect answer make to all and singidar 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,'^ SfC.^ 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 draftsman, 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 whom 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 jurisdiction of the Court.^ Some doubt appears to have been thrown upon the last proposition by * Order, 23d August, 1841. * In the case of a corporation a proper form would omit the word " personally," and after the word " appear," in this line, insert " according to law." 1 HofF. Ch. 63. * Hind. 17. * Story Eq. PI. § 44. A person, whom the bill prays to be made a party, does not thereby become a party ; to make him such, process must be issued and served upon him. Bond v. Hendricks, 1 A. K. Marsh. 594. See Huston v. M'CIarty, 3 Litt. 274 ; Verplanck v. Merc. Ins. Co. 2 Paige, 438 ; Lyle v. Bradford, 7 Mon- roe, 113. By the former practice in New York, parties might be treated as de- fendants, by a clear statement in the bill to that effect, without praying the sub- pcena. The reason given was, that in that State the subpoena was issued of course, and that a formal prayer was unnecessary to entitle the plaintiff to process. Brasher v. Van Cortlandt, 2 John. Ch. 245 ; Elmendorf v. Delancy, 1 Hopk. 555. ^ Windsor v. Windsor, 2 Dick. 707. 392 OF THE BILL. the decision of Sir J. Leach, V. C, in Haddoch v. Thomlinson,^ 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 against 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 ,2 in which that learned Judge had said, that it was not enough to state that persons who, in respect of interest, were necessary par- ties, were out of the jurisdiction, but that the bill must go on to 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 terms 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- 1 2 S. & S. 219. * Manos v. De Tastet. * Taylor v. Fisher, Roll's Sittings after Hil. Term, 1835, MS.; see ante, p. 177, 178. See Story Eq. Pi. § 44 and note ; Mitford Eq. PI. by Jeremy, 165 ; Mil- ligan V. Milledge, 3 Cranch, 220; Lavihart v. Reilly, 3 Desaus. 590. The 22d Equity Rule of the Supreme Court of the United States, January Term, 1842, has provided, that " If any persons, other than those named as defendants in the bill, shall appear to be necessary or proper parties thereto, the bill shall aver the reason why they are not made parties, by showing them to be without the juris- diction of the Court, or that they cannot be joined without ousting the jurisdiction of the Court as to the other parties. And as to persons, who are without the ju- risdiction, and may properlj^be made parties, the bill may pray, that process may issue to make them parties to the bill, if they should come within the jurisdiction." The 23d Rule is as follows : " The prayer for process of subpoena in the bill shall contain the names of all the defendants named in the introductory part of the bill, and If any of them are known to be infants under age, or otherwise under guar- dianship, shall state the fact, so that the Court may take order thereon as justice may require, upon the return of the process. If an injunction, or writ of «e exeat regno, or any other special order pending the suit is asked for in the prayer for relief, that shall be sufficient, without repeating the same in the prayer for pro- cess." Provision is made for service of notice on defendants residing out of the Commonwealth, in the Rules for the Reg. of Prac. in Chau., in Massachusetts. Rule 8. OF THE FORM AND MATTER OF A BILL. 393 lege of peerage, he has a right before a snhpcena 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^ said bill, or in default thereof, his Majesty^ s most gracious writ of subpoena, ^^ Sfc} When the Attorney-General is made a defendant to a suit, as he is always supposed to be in Court, the bill does not pray any sub- poena against him, but merely that, upon being attended with a copy of the bill, he may appear and put in an answer thereto.^ For the purpose of preserving the property in dispute pending a suit, or to prevent evasion of justice, the Court either makes a special order on the subject, or issues a provisional writ ; such as the writ of injunction to restrain the defendant from proceeding at Common Law against the plaintiff, or from committing waste or doing any injurious act ; the writ of ne exeat regno, to restrain defendant from avoiding the plaintiff's demands by quitting the kingdom, or other writs 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, it is usual to insert, immediately before the prayer for process, a prayer for the order or particular writ which the case requires ; and the bill is then commonly named from the writ so prayed, as an injunction bill, or a bill for a writ of ne exeat regno? When an injunction is prayed, the object of it is generally men- tioned in the specific prayer; and then, after the general prayer, the following words are added before the prayer for process : '■'■May it please your lordship, the premises considered, to grant unto your orator not only his Majesty's most gracious writ of injunction, is- * Hind. 18. In the case of corporations aggregate, the process of subpoena is the same as in ordinary cases ; but the bill sometimes prays, that in case of their default to appear and answer the bill, the writ of distringas may issue to compel them to do so. Cooper Eq. PI. 16, 17 ; Harvey v. East Ind. Co. 2 Vern. R. 396 ; 1 Harris Ch. Pr. 149 ; Story Eq. PI. § 44. '- Lord Red. 46. » Ibid. 894 OF THE BILL. srn'n.g' out of and under the seal of this honorable Court, to be di- rected to the said , to restrain from proceeding at Law against your orator touching any of the matters in question, but also his Majesty^ s most gracious writ or writs of subprenas,'^ Sfc.^ As the object of the injunction is generally mentioned in the prayer for relief, these words are not usually inserted in the draft, but are added when the bill is engrossed, in the words of the prayer. It does not, however, seem to be absolutely necessary, where the injunction sought is merely provisional, that it should be specified in the particular prayer for relief, provided it be prayed in the manner above pointed out ; but it is necessary that it should be specially prayed in one part or other, as a proper injunction can- not be granted unless expressly granted 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 is to be observed, that the rule not to grant an injunction, un- less specially prayed, applies only to cases where it is required, provisionally, until the hearing ; but 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 plahitiff, the prayer of the bill must be framed accordingly.^ The prayer for a ne exeat regno resembles that for an injunc- tion mutatis midandis, and, like that, it usually precedes the prayer for process.'^ But, though it is usual, it is not necessary that the bill should pray the writ, as the intention to go abroad may arise in the progress of the cause ; and if, when the bill is filed, the de- fendant does not intend to leave the kingdom, it would be highly » Hind. 18. ^ Savory v. Dyer, Amb. 70. » Wright V. Atkyns, 1 B. & B. 314. * Amb. 70. In cases where the writ of injunction is sought, it should not only be included in the prayer for relief, but also in the prayer for process. Story Eq. PL §44; Eden, Injunct. (2d Am. ed.) 73, 74. * Wright V. Atkins, uhi supra ; Paxton v. Douglas, 8 Ves. 520 ; Jackson v. Leaf, 1 J. & W. 232; Clarke v. Earl of Ormond, Jac. 122, and post. Injunction. * Walker v. Devereux, 4 Paige, 229 ; Lord Red. 47. " Hind, 18; and Moore v. Hudson, Mad. & Gel. 218. Upon the same bill, a ne exeat, as well as au injunction, may be granted. Bryson v. Petty, 1 Bland, 182. BILLS MUST BE ACCOMPANIED BY AFFIDAVIT. 395 improper to pray the writ ; as a groundless suggestion that the de- fendant means to abscond would press too harshly, and would also operate to create the very mischief which the Court, in permitting the motion for it to be made without notice, means to prevent ; ^ in the case, however, of Sharp v. Taylor,^ where the plaintiff knew at the time of the filing of the bill, that the defendant was going abroad, the V. C, of England refused to grant a writ of ne exeat reg-no, in consequence of its not having been prayed for by the bill.3 Section V. In what Cases the Bill must be accompanied by an Affidavit. There are certain cases in which it is necessary that the bill should be accompanied by an affidavit, to be filed with it, and in which the omission of such an accompaniment will render the bill liable to demurrer.* Thus, wlien 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 defendant cannot therefore have any relief at law, the Court requires that the bill should be accompanied by an affidavit of the loss of the instrument.^ If, however, the objection 1 CoUinson v. , 18 Vesey, 353. " 11 Sim. 50. ' Mitford Eq. PI. by Jeremy, 46, 47 ; Story Eq. PI. § 43, and notes. See the case of Darley v. Nicholson, 1 Dru. & War. 66 ; and 2 Dru. & War. 86, for the principles upon which the Court acts in granting writs of ne exeat regno. * Where no preliminary order is required, it is not generally necessary that bills should be sworn to, although the answer under oath is not waived. Atwater v. Kinman, Barring. Ch. 243; Jerome v. Jerome, 5 Conn. 352, A bill in Equity to redeem mortgaged premises need not be verified by affidavit. Hilton v. Lo- throp, 46 Maine, 297. A bill need not be sworn to in Massachusetts. Burns I'. Lynde, 6 Allen, 306. In North Carolina, "an affidavit of the truth of the matters contained in his bill," is necessary to give jurisdiction 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. Barringer v. Andrews, 5 Jones Eq. (N. C.) 348. There is no rule in the U. States Circuit Court for Massachusetts, requiring an oath to be filed with the bill. Wood worth v. Edwards, 3 Minot & Wood. 120. ^ Ld. R. 55; Walmsleyr. Child, 1 Ves. 341; Whitchurch v. Golding, 2 P. Wms. 541 ; Pennington v. Governor, 1 Blackf. 78; Taliaferro v. Foote, 3 Leigh, 396 OF THE BILL. is not taken by demurrer, but the cause proceeds to a hearing, and the answer of the defendant admits the loss or destruction of the instrument, then the Court has jurisdiction, and the objection for want of tlie 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, unless they are in the hands of the defendant ; ^ but a bill for a discovery merely,^ or which only prays the delivery of deeds or writings, or equitable relief grounded upon them, does not require such an affidavit.^ It has been decided ^ to be also unnecessary in the case of a bill for discovery 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 in- strument in his hands he could make no use of it at law, and in- deed the relief prayed is such as a Court of Equity only can give. Another case, in which it has always been requisite that the bill should be accompanied by an affidavit, is, where a bill is filed 58; Peart t;. Taylor, 2 Bibb, 556; Story Eq. PI. § 288; Mitford Eq. PI. by Jeremy, 123, 224 ; Livingston v. Liningston, 4 John. Ch. 294 ; Le Roy v. Veeder, 1 John. Ch. 417; Munday v. Shatzell, Litt. Sel. Ca. 373; Lynch v. Willard, 6 John. Ch. 342, 346. For the reason of the rule, see post, 398, 399, note. la Thornton v. Stewart, 7 Leigh, 128, it was held that, although regularly an affida- vit 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, 6 Munf. 202 ; Jerome v. Jerome, 5 Conn. 352. For the form of an affidavit in such cases, see 1 Grant Ch. Pr. (2d ed.) 13. ^ Crosse v. Bedingfield, 12 Sim. 40. * M'Elwee v. Sutton, 1 Hill Ch. 33; Story Eq. PI. § 288, 313; Findley v. Hinde, 1 Peters, 244; Livingston v. Livingston, 4 John. Ch. 294; Campbell v. Sheldon, 13 Pick. 8, 18 to 20. Per Shaw C. J. ^ M'Elwee v. Sutton, 1 Hill Ch. 33 ; Story Eq. PI. § 288 ; Mitford Eq. PI. by Jeremy, 54. * Lord Red. 55 ; Anon., 1 Ves. 380; Whitchurch v. Golding, 2 P. Wms. 641 ; Anon., 3 Atk. 17; Dormer v. Fortescue, 3 Alk. 132. Where the subject-matter of the writing is properly cognizable in I'](|iiity, an affidavit of the loss is not necessary. Peart v. Taylor, 2 Bibb, 566 ; ISlitlnrd Eij. PI. by Jeremy, 124 ; Laight V. Morgan. 1 Caines Ca. Er. 345; S. C. 1 Julin. Ch. 9 ; Campbell v. Sheldon, 13 Pick. 18 to 20. * King V King, Mos. 192. BILLS MUST BE ACCOMPANIED BY AFFIDAVIT. 397 under the Merchant Sliipping Act, which was passed for the pur- pose, amongst many other things, of Umiting the responsibility of shipowners in certain cases. These acts have been recently amend- ed and consolidated by " The Merchant Sliipping Act, 1854," which, by the 514th section, enacts, that " In cases where any lia- bility has been or is alleged to have been incurred by any owner in respect of loss of life, personal injury, or loss of or damage to ships, boats, or goods, and several claims are made or apprehended in respect of such liability, then subject to the right hereinbefore given to the Board of Trade of recovering damages in the United Kingdom in respect of loss of life or personal injury, it shall be lawful in England or Ireland for the High Court of Chancery, and in Scotland for the Court of Session, and in any British possession for any competent Court, to entertain proceedings at the suit of any owner for the purpose of determining the amount of such lia- bihty subject as aforesaid, and for the distribution of such amount ratably amongst the several claimants, with power far any such Court to stop all actions and suits pending in any other Court in relation to the same matter ; and any proceeding entertained by such Court of Chancery, or Court of Session, or other competent Court, may be conducted in such manner and subject to such reg- ulations as to making any persons interested parties to the same, and as to the exclusion of any claimants who do not come in with- in a certain time, and as to requiring security from the owner, and as to payment, &c. of costs, as the Court thinks fit." In the recent case of Hill v. Audus,^ the construction of this act came before Sir W. P. Wood, V. C, who held it essential that the plaintiff must aver that he has incurred liability in respect of some damage. Even in cases in which the legislature has expressly directed that the affidavit should be " annexed to the bill," it is not necessary that the affidavit should be sworn at the same time as the bill is filed, but it is the usual practice in all cases in which an affidavit is necessary to have it sworn a day or two before the bill is filed.2 The other cases, in which bills are required to be accompanied by an affidavit, are bills for the purpose of examining witnesses de bene esse, where, from circumstances, such as the age or infirmity ' 1 Kay & Johnson, 269 ; The African Steam Ship Co. v. Swanzy, 2 K. & J. 460. ' Walker v. Fletcher, 1 Ph. 115. VOL. 1. 34 398 OF THE BILL. of witnesses, or their intention of leaving the country, it is prob- able the plaintiff 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 ought also to be accompanied by an affidavit by the plaintiff that there is no collusion between him or any of the parties.^ ' Ld. R. 150: Phillips v. Carew, 1 P. Wms. 117; Laight v. Morgan, 1 Gaines's Gas. in Error, 344 ; S. G. 1 John. Gh. 429 ; Story Eq. PI. § 304, 309. The rea- son given for requiring the affidavit is, that the proceeding has a tendency to change the jurisdiction of the subject-matter from a Gourt of Law to a Gourt of Equity. Mitford Eq. PI. by Jeremy, 150, 151 ; Story Eq. PI. 309. " This reason," says Mr. Justice Story, " is perhaps 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, that the bill is well founded, is required. Tlie affidavit should be posi- tive as to the material facts." Story Eq. PI. § 309. ' Ld. R. 50 ; Bl^nold v. Audland, 11 Sim. 23. The affidavit of his solicitor is not sufficient. Wood v. Lyme, 4 De G. & Sm. 16. See Eden on Injunct. (2d Am. ed.) 401, 402 ; Shaw v. Goster, 8 Paige, 339 ; Tobin v. Wilson, 3 J. J. Marsh. 67 ; Manks v. Holroyd, 1 Gowen, 691 ; Mitford Eq. PI. by Jeremy, 143. Such an affidavit is not necessary in Gonnecticut. Nash v. Smith, 6 Gonn. 421. See Jerome v. Jerome, 5 Gonn. 352. See the form of demurrer for want of such an affidavit. Willis, 442 ; Equity Drafts. (2d Amer. ed.) 7 7. A bill praying for an injunction, generally requires an affidavit to support it. Eden on Injunct. (2d Am. ed.) 380, 381 ; 1 Barbour Gh. Pr. 43, 44, 617 ; 1 Hoff. Gh. Pr. 78 ; Hatch v. Eustaphieve, 1 Glarke (N. Y.) 63 ; Hammersley v. Wyck- off, 8 Paige, 72 ; Gampbell v. Morrison, 7 Paige, 157. See Woodworth v. Ed- wards, 3 Wood. & Minot, 120. In Maine, " bills of discovery, and those praying for an injunction, must be verified by oath." Ghan. Rule 1, 37 Maine, 581. Where the facts, on which the claim for an injunction is made, are not within the knowledge of the plaintiff, he should state the facts in his bill as upon his in- formation and belief, and annex the affidavit of the person from whom he ob- tained the information, or some other person who can swear positively to the truth of the material allegations in the bill. Gampbell v. Morrison, 7 Paige, 157 ; Bank of Orleans v. Skinner, 9 Paige, 305 ; 1 Hoff. Gh. Pr. 425. In New Jersey, the affidavits of the plaintiff, made after filing the bill, are not competent to be read upon a motion for an injunction and the appointment of re- ceivers. Such affidavits should be subjoined to the bill, and filed with it. Bran- dred v. Paterson Machine Shop, 3 Green Gh. 294, 309. In Delaware, a creditor's bill must contain the averments required by the 109th Rule, and those averments must be sworn to in the jurat. Glark v. Davis, Har- rlng. Gh. 227. So when a writ of ne exeat regno is asked for, an affidavit is necessary as a foun- dation for obtaining it. 1 Barb. Gh. Pr. 649, 650; Rice v. Hale, 5 Gushing, 238 ; 1 Hoff. Gh. Pr. 96 ; Porter v. Spencer, 2 John. Ch. 169 ; Seymour v. Hazard, OF FILING AND PRINTING THE BILL. 399 It is to be observed that, in cases of this nature, advantage can only be taken of the omission of an affidavit, by demurrer ; and that where a plaintiff, instead of demurring on this ground in the first instance, put in a plea to the whole bill, which was overruled, he was not allowed to demur ore tenus, on the ground that the necessary affidavit was not annexed.^ Section VI. Of Filing- and Printing the Bill. After a bill has been drawn, or perused and signed by counsel, the solicitor should cause to be indorsed or written upon the bill 1 John. Ch. 1 ; Thorne v. Halsey, 7 John. Ch. 191 ; Gernoe v. Boccaline, 2 Wash. C. C. 130 ; Gilbert r. Colt, 1 Hopk. 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 by the officer making the oath. Bank of Orleans v. Skinner, 9 Paige, 305 ; 1 Barb. Ch. Pr. 44 ; 1 Hofi". Ch. Pr. 78, 79, 96. When a bill is to be verified by the oath of an agent or attorney of the plain- tiff, it should be drawn in the same manner as a bill which is to be sworn to by the plaintiff himself; stating those matters which are within the personal knowl- edge of such agent or attorney positively ; and those, which he has derived from the information of others, should be stated or charged upon the information and belief of the plaintifi". 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 matters which are therein stated to be on the information and belief of the plain- tiff, and that as to those matters the deponent believes it to be true. Bank of Orleans v. Skinner, 9 Paige, 305. Where it is necessary that a bill should be sworn to, for the purpose of calling for an answer on oath, it is not necessary that the allegations of a 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 contained in it. Veedery. Moritz, 9 Paige, 371 ; Triebert v. Burgess, 11 Maryland, 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 relating to others, he believes to be true, is sufficient. Collins v. Barksdale, 23 Georgia, 602. ' Hook V. Dorman, 1 S. & S. 227 ; Crosse v. Bedingfield, 12 Sim. 35 ; Allen v. State Bank, 1 Dev. & Batt. Eq. 6 ; Findley v. Hind, 1 Peters, 244 ; Woodworth V. Edwards, 3 Wood. & Minot, 120. For the form of demun-er in such cases, see Willis, 431. The affidavit may be amended by leave of the Court. Hamilton v. Marks, 5 De G. & Sm. 638. 400 OF THE BILL. his name and place of business, and also (if his place of business shall be more than three miles from the Record and Writ Clerk's Office) another proper place (to be called the address for service), which shall not be more than three miles from the said office, where suits, notices, orders, communications may be left for him ; and where any such solicitor shall only be the agent of any other solicitor, he should add to his own name or firm and place of busi- ness, the name or firm and place of business of the principal so- licitor.i By another Order ^ it is made necessary that every original in- formation or bill of complaint filed in the High Court of Chancery, shall, at the option of the party, informant or complainant, by or on whose behalf the information shall be filed, be distinctly marked at or near to the top or upper part thereof either with the words " Lord Chancellor," or with the words " Master of the Rolls."' And the record and writ clerks are not to file any origi- nal information or bill of complaint which shall not be marked' in this manner. And it is further necessary that in all informations or bills marked with the words " Lord Chancellor " the plaintiff shall underneath the words Lord Cliancellor write the title of one of the three Vice-Chancellors, at his option, and the cause shall thenceforth, unless removed by some special order of the Lord Chancellor, be attached to such Vice-Chancellor's Court.^ A fair copy of the bill having been thus prepared, it is delivered to the printer, and the proofs examined until the printed copy is quite correct.* The requisite number of copies are then ordered. The solicitor, having thus prepared the printed copy, delivers it to the clerk of records and writs in whose division the cause is, for the purpose of having it filed. The clerk of records and writs dates it the day that 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, but before this process is completed it is not of any effect in Court.^ ^ 17th Order, October, 1842. - Order, 1 May, 1837. * 1st Order, November, 1841. * See ante, p. 314, 315, as to the printing of bills. The printed copy left with the clerk of records and writs is interleaved, and stamped with a 1/. stamp. ^ Beames's Orders, 110 and 1G8 ; Order, 3 October, 1842. The Circuit Courts of the United States, as Courts of Equity, shall be deemed always open for the purpose of filing bills, answers and other pleadings, and for issuing and returning OF FILING AND PRINTING THE BILL. 401 By the fourth section of the Chancery Amendment Act, it is enacted, that " The filing of a printed bill of complaint or claim in the said Court shall have the same effect as the filing of a bill of complaint or claim in the same Court, and the issuing of a sub- poena or writ of summons therein respectively now have, and the service upon the defendant of a printed bill of complaint or of a claim so filed, with such indorsement thereon, so stamped as afore- said, shall have the same effect as the service on him of a writ of subpoena or writ of summons respectively now has, and shall en- title the plaintiff in such suit to such remedies for default of ap- pearance and otherwise, as he is now entitled to, in case of due and proper service of a subpcena, to appear to and answer a bill of complaint or of a writ of summons upon a claim. The circumstances under which a written copy of the bill may be filed have been already stated, and the section of the act set forth in full.^ It will be recollected that a written bill can only be filed upon a personal undertaking of a solicitor to file a printed bill within a fortnight.^ mesne and final process, &c. Equity Rule 1 ; and by Eqviity Rule 11, it is pro- vided that no process of subpoena shall issue from the clerk's office in any suit in Equity, until the bill is filed in the office. In Massachusetts, the plaintiff must file his bill before or at the time of taking out the subpoena ; and no injunction or other proceeding shall be ordered until the bill is filed, unless for good cause shown. Rule 3, of the Rules for Practice in Chancery. A suit in Equity is commenced, it seems, when the bill is filed. Mc- Lin V. McNamara, 2 Dev. & Bat. Ch. 82; Aston v. Galloway, 3 Ired. Ch. 126. By Chancery Rule 2, § 8, in New Jersey, the clerk of the Court of Chancery is required 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 paper 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 index to the same ; and the said docket shall be, at all proper hours, accessible to the bar. By the 16th Equity Rule of the United States Courts, upon the return of the subpoena, as served and executed upon any defendant, the clerk shall enter the suit upon his docket as pendino- in the Court, and shall state the time of the entry. ^ Ante, p. 317. * With respect to the costs on filing a written bill, see ante, p. 317. 34^ 402 OF THE BILL. Section VII. Of Amending' Bills. 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 grant him the required relief, he may alter it by inserting new matter, or by add- ing such persons as shall be deemed necessary as parties ; or in case the original bill shall be found to contain matter not relevant, or no longer necessary to plaintiff's case, or parties which may be dispensed with, the same may be struck out ; and the original bill, thus added to or altered, is termed an amended bill} ^ Hind. 21. See McDougald ?;. Williford, 14 Georgia, 665; post, 411, note, and Rules of the Courts of the U. States, Massachusetts, and New Hampshire, there stated. Amendments can only be granted where the bill is defective in parties, or in prayer for relief, or in the omission or mistake of a fact or circmn- stance connected with the substance, but not forming the substance itself, nor re- pugnant thereto. The latter part of this principle applies to all pleadings in Equity, as well as to bills. Verplanck v. Merct. Ins. Co. 1 Edw. 46 ; Lyon v. Tallmadge, 1 John. Ch. 184 ; Rogers v. Rogers, 1 Paige, 424 ; Bowen v. Cross, 4 John. Ch. 375 ; Renwick v. Wilson, 6 John. Ch. 81 ; Belknap v. Stone, 1 Allen, 572 ; Carey v. Smith, 11 Georgia, 539 ; Larkins v. Biddle, 21 Alabama, 252. Being regarded only with reference to the furtherance of justice, amendments, 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 ; McElwain v. Willis, 3 Paige, 505. Amendments are, therefore, always allowed with great liberality, until the proofs are closed. Cock v. Evans, 9 Yerger, 287, except where the bill is upon oath. 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. lb. ; Ver- planck V. Merct. Ins. Co. 1 Edw. 46 ; Swift v. Eckford, 6 Paige, 22 ; Lloyd v. Brew- ster, 4 Paige, 538; Parker v. Grant, 1 John. Ch. 434; Rogers v. Rogers, 1 Paige, 424 ; Whitmarsh v. Campbell, 2 Paige, 67. So where the object of the amend- ment is to let in new facts or defences, there is greater reluctance on the part of the Court to allow the amendment where it depends upon parol proof, than where it depends on written instruments omitted by accident or mistake. Smith v. Bab- cock, 3 Sumner, 410; Calloway w. Dobson, 1 Brockenborough, 119. And the Court will not allow amendments by inserting facts known to the plaintiff at the time of 61ing his bill, unless some excuse is given for the omission. Whitmarsh v. Campbell, 2 Paige, 67; Prescott w. Hubbell, 1 Hill. Ch. 217. Nor where the matter of the proposed amendment might with reasonable diligence have been inserted in the original bill. North Amer. Coal Co. v. Dyett, 2 Edw. Ch. 115. When a plaintiff wishes to amend a sworn bill, he must state the proposed amendments distinctly, so that the Court can see that they are merely in addition OF AMENDING BILLS. 403 But, although it is the practice to call a bill thus altered an amended bill, the amendment is in fact esteemed but as a contin- uation of the original bill, and as forming part of it;^ for both the original and amended bill constitute but one record ,2 so much so, that where an original bill is fully answered and amendments are afterwards made, to which the defendant does not answer, the whole record may be taken jrro confesso generally,^ and an order to take the bill pro 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 place in the custody of the Great Seal, between the times of filing the original bill and the amendment.^ When suits were much more complicated than they are at pres- ent, and the number of defendants greater, the practice concern- ing the amendment of bills was of great consequence. The length of time that intervened between the commencement of a suit and the hearing gave opportunities for great changes to take place in the parties, and many events to happen affecting the case to be brought before the Court. The comparative simplicity in the con- struction of modern suits, the smaller number of parties, the short intervals that occur before the termination of a cause, and the powers that the Court now possesses at the hearing to remedy defects in former times of a fatal description, have contributed to dimin- to the original bill, and not inconsistent therewith. He must also swear to the truth of the proposed amendments, and render a valid excuse for not incorporat- ing them in the original bill ; and the application to amend must be made as soon as the necessity for such amendment is discovered. Rogers v. Rogers, 1 Paige, 424 ; Whitmarsh v. Campbell, 2 Paige, 6 7 ; Verplanck v. Merct. Ins. Co. 1 Edw. 46 ; Altree v. Horden, 3 Lond. Jurist, 81. ^ See Hurd v. Everett, 1 Paige, 124 ; Walsh v. Smyth, 3 Bland, 9, 20; O'Grady V. Barry, 1 Irish Eq. 56 ; Story Eq. PI, § 332, 885 ; Carey v. Smith, 1 1 Georgia, 539. " Vere v. Glynn, 2 Dick. 441. ^ Jopling V, Stuart, 4 Ves. 619. Where the plaintiff 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 con- fessed. Trust & Fire Ins. Co. v. Jenkins, 8 Paige, 589. See Thomas v. Visitors Fred. Co. School, 7 Gill & John. 369; Cowman v. Lovett, 10 Paige, 559; Ted- der V. Stiles, 16 Georgia, 1. . * Bacon v. Griffith, 4 Ves. 619, n * Hind. 22. 404 OF THE BILL. ish the number of amendments necessary on bills, and the impor- tance of the technical information on the subject. In this sec- tion the former rules still in force, together with the recent orders and enactments on the subject, will be set forth. Amendments to a bill are of two sorts, those which relate to parties and those which affect the substance of the case. Under a common order to amend by adding parties, the plaintiff cannot alter his bill either by putting in the names of other persons as co-plaintiffs with himself,^ or by striking out the names as plaintiffs of any persons filling that character upon the original record.^ In some cases, special orders may, however, be obtained for these purposes ; but as a diminution of the number of plaintiffs has the effect of lessening the defendant's security for costs, an order will not be made to strike out the names of plaintiffs without the Court also providing, at the same time, that security for the costs of the suit shall be given.^ In the case of Brown v. Lawer,'* one of two co-plaintiffs who had authorized the institution of the suit refused to proceed in it. A motion was accordingly made on behalf of the other co-plaintiff, that she might be at liberty to amend the bill by striking out the name of the co-plaintiff who had refused to pro- ceed, and by making him a defendant, and that he might be or- dered to pay the costs occasioned by such amendment, and also the costs of giving any security for costs which the defendants or any or either of them might be declared entitled to in consequence of such amendment and incidental thereto, and also the costs of and incident to that application, to be taxed as between solicitor and client. Lord Langdale, M. R., in giving judgment upon the motion, said, " The suit cannot be prosecuted unless 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 towards the defendants, and by securing the costs of suit already incurred ; and the co-plaintiff having, by revoking the authority, made this application necessary, ought therefore to pay the costs." ^ 1 Milligan v. Mitchell, 1 M. & C. 433; Story Eq. Tl. § 541, note; Miller v. McCan, 7 Paige, 451. 2 Fellowcs V. Deere, 3 Beav. 353. ' Sweeny v. Hull, Sausse & S. 662. * 3 Beav. 598. ^ It is within the discretion of the Court to permit a bill to be amended, by substituting the name of a new for the original plaintiff, even after answer filed ; OF AMENDING BILLS. 405 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 appli- cation 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 appli- cation is, that the defendants will not be prejudiced by such an al- teration ; they must show that justice will not be done, or that tlie 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 an- other time, which may be the result of mere caprice." It will be recollected,^ that now a written authority must be signed by a re- lator before his name is used in an information. In the case of Hall v. Lack,^ where it appeared that the associ- ation of a cestui que trust and trustee, as co-plaintiffs on the 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. This case, and those referred to in the notes, will explain the former practice in motions of this description, but in most in- stances the powers conferred upon the Court at the hearing by the 49th section * of the Chancery Amendment Act will prevent the necessity of such motions. Bills of discovery will probably not now be very common in con- sequence of the powers recently conferred upon Courts of Law, but it may be mentioned, that it has been laid down as a rule, that bills of discovery cannot be amended by adding parties as plain- tiffs.5 And with respect to bills for relief, in a case before Lord Cotten- but it must be upon the payment of all the costs, up to the time of the amend- ment, as well as of the amendment itself. Jennings v. Springs, 1 Bailey Eq. 181. ^ 3 M. & C. 258. * Ante, p. 14. ^ 2 Y. & C. 631 ; see also Plunkett v. Joice, 2 Scho. & Lef. 159, ante, p. 98 ; Motteux V. Mackreth, 1 Ves. jr. 142. * Ante, p. 306, note. * Lord Cholmondeley v. Lord Clinton, 2 Mer. 71. 406 OF THE BILL. ham, his lordship held that an order made at the hearing for leave to amend, bj adding parties, did not authorize the introduction of new co-plaintifFs.i It has been the practice to amend bills by adding parties as de- fendants at all stages of the suit,^ previous to the hearing, upon sufficient cause being shown, but it must be recollected, that if parties are added after witnesses have been examined, the deposi- tions of those witnesses cannot be read against them, as they have had no opportunity of cross-examining such witnesses.^ With respect to those amendments which are made for the pur- pose of altering the case upon the record, as against the defend- ants already before the Court, it is not within the province of this work to point out at length all the cases in which such amend- ments may become requisite, or to what extent they may be' made. There is, however, one most important enactment on this sub- ject which has quite altered the previous practice. The 53d section of the Chancery Amendment Act enacts, that " It shall not be necessary to exhibit any supplemental bill in the said Court for the purpose only of stating or putting in issue facts or circumstances which may have occurred after the institution of any suit ; but such facts or circumstances may be introduced by 1 Milligan v. Mitchell, 1 M. & C. 511; Story Eq. PI. § 541, note; Miller v. McCase, 7 Paige, 451. See Noyes v. Sawyer, 3 Vermont, 160 ; Arendel v. Black- well, 1 Dev. Ch. 354. " Prac. Reg. 301; Goodwin v. Goodwin, 3 Atk. 370; Story Eq. PI. § 887; Cooper Eq. PI. 333 ; Mitford Eq. PI. by Jeremy, 325 ; Hutchinson v. Reed, 1 Hoff. Ch. Rep. 316 ; Gordon v. Holland, 3 Ired. Ch. 362 ; Park v. Ballentine, 6 Black. 223. In respect to amendments as to parties, Courts are more liberal than in respect to other amendments. A Court of Equity will not dismiss a bill absolutely, for want of proper parties, if the plaintiff shows enough to give color to his claim for relief against the parties not before the Court. Allen v. Smith, 1 Leigh, 331. See ante, 294, note; Thorn v. Germand, 4 John. Ch. 363 ; Pleas- ants V. Logan, 4 Hen. & Munf. 489. Upon a creditor's bill against an insolvent corporation for a receiver, &c., the plaintiff may pray a discovery of the stock- holders liable, and having obtained it may amend his bill by making such stock- holders parties. Morgan v. New York & Albany R. R. Co. 10 Paige, 290. See McDougald v. Dougherty, 14 Georgia, 6 74. ' Pratt V. Barker, 1 Sim. 1. After the witnesses in a cause have been exam- ined, and the proofs closed, no amendment of the bill is allowed, except in mat- ters of mere form, unless under very special circumstances. Bowen v. Tdley, 6 Paige, 467; Story Eq. PI. § 887. See Wilbur v. Collier, 1 Clark, 315; Shep- hard v. Merrill, 3 John. Ch. 423 ; Smith v. Burnham, 4 Har. & John. 331 ; Stew- art V. Duvall, 7 Gill & John. 180; Ross v. Carpenter, 6 McLean, 382. OF AMENDING BILLS. 407 way of amendment into the original bill of complaint in the suit, if the cause is otherwise in such a state as to allow of an amend- ment being made in the bill, and if not, the plaintiif shall be at liber^ to state such facts or circumstances on the record, in such manner and subject to such rules and regulations with respect to the proof thereof, and the affording the defendant leave and oppor- tunity of answering and meeting the same, as shall in that behalf be prescribed by any General Order of the Lord Chancellor." This enactment has been further developed by the 44th Order of August, 1852,^ which is in the following words: — " If the plaintiff in any cause, which is not in such a state as to allow of an amendment being made in the bill, shall desire to state or put in issue any facts or circumstances which may have occurred after the institution of the suit, he may state the same, and put the same in issue by filing in the Record and Writ Clerk's Office a statement either written or printed, to be annexed to the bill ; ^ and such proceedings by way of answer, evidence, and otherwise, are to be had and taken upon the statement so filed, as if the same were embodied in a supplemental bill : provided always, that the Court may make any order which it shall think fit for accelerating the proceedings thereunder, or proceedings therein, in any manner which may appear just and practicable." Before these new Orders the rule was a very strict one, subject to scarcely any exceptions, that nothing which occurred subse- quent to the institution of the suit could be introduced into the bill by way of amendment, and that there must be a new bill with a new subpoena, and a new answer to bring such supplemental matter before the Court.^ ^ A defendant, to whom the conduct of the cause has been granted, cannot do this, but must file a supplemental bill. Lee v. Lee, 9 Hare, App. xci. ; 10 Hare, App. Ixxii. * See Rogers v. Solomons, 17 Georgia, 598. ' See Longworth v. Taylor, 1 McLean, 514. Amendments to a bill are always considered as forming a part of the original bill. They refer to the time of filing the bill ; and the defendant cannot be required to answer anything which has arisen since that time. Hurd v. Everett, 1 Paige, 1 24 ; Walsh v. Smyth, 3 Bland, 9, 20 ; O'Grady v. Barry, 1 Irish Eq. 56 ; Story Eq. PI. § 332, 885. Unless, in- deed, the defendant 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 v. Gibbons, Halst. N. Jer. Dig. 172. Consequently an original bill cannot be amended by incorporating therein anything which arose subsequently to the commencing of the suit. This should be stated in a supple- 408 OF THE BILL. "With respect to the extent of amendments permitted by the Court in a bill, the old practice still prevails. It may be men- tioned that it has never been deemed necessary for the plaintiff to amend liis bill for the purpose of stating facts alleged in the de- fendant's answer.^ Great latitude always has been allowed to a plaintiff in making amendments, and the Court has even gone to the extent of per- mitting a bill to be converted into an information.^ It has been mental bill. Stafford v. Hewlett, 1 Paige, 200; Saunders v. Frost, 5 Pick. 276. See Sanborn v. Sanborn, 7 Gray, 142. Generally, a mistake in the bill in the statement of a fact should be corrected by an amendment, and not by a right statement of the fact in a supplemental bill. Strickland v. Strickland, 12 Si- mons, 253 ; Story Eq. PI. § 332, G14 ; Stafford v. Howlett, 1 Paige, 200. When the cause has proceeded so far, that an amendment cannot be made, or if material facts have occurred subsequently to the commencing of the suit, the Court will give the plaintiff leave to file a supplemental bill. And where such leave is given, the Court will permit other matters to be introduced into the sup- plemental bill, which might have been incorporated in the original bill by way of amendment. Stafford v. Howlett, 1 Paige, 200. See Verplanck v. Merct. Ins. Co. 1 Edw. 46. Cases, however, do sometimes occur where the introduction, by amendment, of matters which have occurred since the date of the original bill will be permitted by the Court ; thus, where the plaintiff has an inchoate right at the time of pre- paring his original bill, which merely requires some formal act to render his title perfect, and such formal act is not completed until afterwards, the introduction of that fact by amendment will be permitted. The case of an executor tiling a bill before probate, and afterwards obtaining probate, is an instance of this kind. Humphreys v. Humphreys, 3 P. Wms. 348 ; Bradford v. Felder, 2 IM'Cord Ch. 170 ; Billout V. Morse, 2 Hayw. 175 ; Butler v. Butler, 4 Litt. 201 ; Blackwell v. Blackwell, 33 Ala. 57. A bill was amended so as to charge that an infant de- fendant had attained her full age, thereby to compel her to answer as an adult. Kipp V. Hanna, 2 Bland, 26. * Attwood V. , 1 Russ. 355 ; Maury v. Lewis, 10 Yerger, 115 ; Rose v. My- natt, 7 Yerger, 30. But see Thomas v. Warner, 15 Vermont, 1 10; Dupouti ». Mussy, 4 Wash. C. C. 128. But where it is important to the plaintiff, that facts disclosed in the answer, should be further inquired into, or avoided by some fur- ther statement, such facts may be introduced into the bill from the answer of the defendant, by way of amendment. Seelye v. Boehm, 2 Mad. 1 76 ; Spencer v. Van Duzen, 1 Paige, 555. But no admission in an answer can, under any cir- cumstances, lay a foundation for relief under any specific head of equity, unless it be substantially set forth in the bill. Jackson v. Ashton, 11 Peters, 229. The bill should be amended so as to state the contract set up in the answer, if that is to be relied upon for a decree. Byrne v. Romaine, 2 Edw. Ch. 445. But it is not necessary or proper to amend the bill for the purpose of traversing defensive averments brought forward by the answer. Lanier v. Hill, 30 Alabama, 111. " President of St. Mary Magdalen v. Sibthorp, 1 Russ. 154. OF AMENDING BILLS. 409 held, where a plaintiff filed a bill, stating an agreement, and the defendant by his answer admitted that there was an agreement, but different from that stated by the plaintiff, that the plaintiff might amend his bill, abandoning his first agreement, and praying for a decree according to that admitted by the defendant.^ In that case, however, the amendment was permitted, because the bill in its original form might have been prepared under a mistake or misconception of counsel,^ and the plaintiff, having afterwards dis- covered the error, was allowed by the Court to abandon his origi- nal case, and insist upon the one alleged by the defendant ; but the Court will not carry its liberality further, and permit a plain- tiff to amend his bill, so that he may continue to insist upon the agreement originally stated, and if he fails in that, to get the ben- efit of the one admitted by the defendant. Upon this principle — where 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 with costs, but without prejudice to any bill the plaintiff might be advised to file to obtain a performance of the admitted agreement.^ The question, whether the Court will or will not permit a bill, filed for the mere purpose of discovery, to be converted into one for relief, by the addition of a prayer for relief, was formerly a matter of interest and the subject of discussion, but the point is now not of practical consequence.* * Per Lord Redesdale, Lindsay v. Lynch, 2 Sch. & Lef. 9 ; Harris v. Knicker- bocker, 5 WenduU, 638 ; S. C. 1 Paige, 209. See Bellows v. Stone, 14 New Hamp. 175. This has been allowed, even after a hearing on the bill, answer, and evidence. Bellows v. Stone, supra. » See McElwain v. Willis, 3 Paige, 505. ' Lindsay v. Lynch, 2 Sch. & Lef. 1 ; see also Woollam v. Hearn, 7 Ves. 222, and Deniston v. Little, 2 Sch. & Lef. 11, n. a. * Ld. R. 184, n. (z) ; Butterworth v. Bailey, 15 Ves. 358 ; Hildyard v. Cressy, 3 Atk. 303 ; Crow v. Tyrell, 2 Mad. 397. A bill for relief cannot be converted into a bill for discovery by striking out the prayer. Earl Cholraondeley v. Clin- ton, 2 Ves. & B. 113 ; S. C. 2 Mer. 71. An application to the Court in Massa- chusetts, for relief in equity, which does not contain a prayer for process to be served on the defendant, or conclude with the general interrogatory as required VOL. I. 35 410 OF THE BILL. It is to be observed here, that if a plaintiff takes advantage of an order to amend, so as entirely to change his case and to make the bill a perfectly new one,^ he will be ordered, upon motion, to place the defendant in the same position, with regard to costs, that he would have been in had tlie plaintiff, instead of amending, dis- missed his original bill with costs and fded a new one.^ Thus, where a plaintiff originally filed his bill against the defendant as his bailiff or agent, in respect of certain farms, praying an account against him upon that footing, and afterwards, upon an issue being directed to try whether he was or was not a mortgagee of such farms, and the jury finding that he was, the plaintiff amended his bill by stating the mortgage, and converting his former prayer for relief into a prayer for a foreclosure ; upon the defendant's mak- ing a motion, one of the objects of which was, that the amended bill might be taken off' the file ; it was held, that the defendant was entitled to all the costs sustained by him beyond what he by the Rules for Practice in Chancery in that State, may be regarded as a bill ; and if properly amended, relief may be granted on it. Belknap v. Stone, 1 Allen, 572. See Wright v. Wright, 4 Halst. Ch. (K J.) 143. ^ A party under the privilege of amending, shall not introduce matter which •would constitute a new bill. Verplanck v. Merct. Ins. Co. 1 Edw. Ch. 46 ; Crabb V. Thomas, 25 Ala. 212; Lambert v. Jones, 2 P. & H. 144; Shields v. Bar- row, 17 How. U. S. 130; Fenno v. Coulter, 14 Ark. (1 Barb.) 39 ; Carey v. Smith, 11 Georgia, 539 ; Snead v. McCoull, 12 How. U. S. 407. After a deci- sion upon a plea to the jurisdiction, that a bill in equity between members of a manufacturing corporation cannot be sustained, the Court will not grant the plaintiff leave to amend, by averring that the corporation had been dissolved ; this beinc in effect to make a new and distinct case. Pratt v. Bacon, 10 Pick. 1 23. Nor will the Court, where a vendee of land has brought a bill for a rescis- sion of the contract, permit him to change the prayer of his bill and claim a spe- cific execution thereof. Shields v. Barrow, 17 How. U. S. 130; Williams v. Starke, 2 B. Monroe, 196, 197. A second mortgagee of land brought a bill against the first mortgagee, to redeem the first mortgage, and the Court post- poned the plaintiff's mortgage, on account of misrepresentations made by him, so as to let In and give priority to a subsequent mortgage of a part of the same land to the defendant ; the Court refused to grant leave to the plaintiff to amend his bill for the purpose of enabling him to proceed under it for the redemption of such subsequent mortgage. Piatt v. Squire, 5 Cushing, 551. See Sanborn v. Sanborn, 7 Gray, 142 ; Lambert v. Jones, 2 P. & H. 144. But in some cases it has been held, that a j)laintifr who has filed a bill for specific performance of a contract may, under circumstances, amend his bill and pray for a rescission of the contract, and for such other relief as he may be entitled to. Parrill v. McKinley, 9 Grattan (Va.) 1. ^ See Lloyd v. Brewster, 4 Paige, 638. OF AMENDING BILLS. 411 would have been put to if the bill had been originally a bill for a foreclosure, and an order was made accordingly, although the amended bill was not taken o(T 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, could not be awarded to him at the hearing, the Court will, upon motion, order such costs to be taxed and paid to the defendant.^ And where a cause, at the hearing, was ordered to stand over, with lib- erty to the plaintiff to amend by adding parties, and the plaintiff took advantage of that order to strike out several charges which had necessarily led the defendant into the examination of wit- nesses, 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 was 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.^ Any amendment of a bill, however trivial and unimportant, au- thorizes a defendant, though not required to answer, to put in an answer, making entirely a new defence and contradicting his for- mer answer."^ Thus, in Bolton v. Bolton,^ a motion to take an an- swer to an amended bill off the file, was on this ground refused (although it was filed nearly three years after the bill had been amended, and eight years after the original answer), and contra- dicted the original answer, introducing no less than four new issues or defences. An amendment of the bill does not, however, necessarily enable a defendant to demur to a bill which he had previously answered ; for in the case of EUice v. Goodson,^ Lord ^ Smith V. Smith, Cooper, 141 ; and see Mavor v. Dry, 2 S. & S. 113. " Dent V. AYardel, 1 Dick. 339. " Bullock V. Perkins, 1 Dick. 110; and see Strickland v. Strickland, 3 Beav. 242; Monck v. The Earl of Tankerville, 10 Sim. 284. * Trust and Fire Ins. Co. v. Jenkins, 8 Paige, 589 ; Bowen v. Idley, 6 Paige, 46. See Basanquet v. Marsham, 4 Sim. 573 ; Richardson v. Richardson, 5 Paige, 58 ; Thomas v. Visitors of Fred. Co. School, 7 Gill & John. 369. In this last case an additional answer to an amended bill was ordered to be taken off the file, be- cause not filed with leave. ' 29th June, 1831. MSS. ex relatione, Beames. ' 3 M. & C. 653 ; see Order 37th August, 1841, which has been issued subse- quently to this case. 412 OF THE BILL. Cottenliam overruled a demurrer to an amended bill, which had been filed by a defendant who had fully answered the original bill, upon the ground that, as the amendment had not materially va- ried the case originally made against the demurring party, and as passages existed in the amended bill which had previously been answered as part of the original bill, the answer overruled the demurrer. 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 a previous order.^ Orders for leave to amend bills are usually granted on the application of the plaintiff, and may be had, subject to the rules and regulations hereafter pointed out, at any period of the cause previously to the hearing.'^ By the 64th Order, of May, 1845, " leave to amend a bill may be obtained at any time before answer, upon motion or petition, witliout notice." ^ The result is, that the plaintiff may have as many orders of course to amend his bill before answer as he re- quires. After he has obtained any such order to amend, he has " in all cases in which such order is not made witliout prejudice to an injunction, fourteen days after the date of the order within which he may amend his bill. If he does not amend within foui^ teen days, the order becomes void,* and the cause as to dismissal stands in the same situation as if such order had not been made." ^ ' See Thomas v. Visitors of Fred. Co. School, 7 Gill & John. 369. " See Luce v. Graham, 4 John. Ch. 1 70 ; Hunt v. Holland, 3 Paige, 78. ^ If an appeal from an Order overruling a demurrer to the plaintiff's bill be pending, an ex parte Order to amend is irregular, and the amendments will be expunged on motion by the defendant. Ainslie v. Sims, 1 7 Beav. 1 74. * 16th Order, May, 1845, Art. 34. If the bill be amended by special leave, and no time be limited in the Order, the plaintiff must amend within the four- teen days allowed by Order 16, Cridland v. De Mauley, 2 De G. & Sm. 560; Armistead v. Durham, 11 Beav. 428; more time can be obtained on a special ap- plication, Bainbrigge v. Baddeley, 12 Beav. 152. ^ 70th Order, May, 1845. The following rules on the subject of amendments were adopted by the Supreme Court of the United States, January Term, 1842. " The plaintiff shall be at liberty, as a matter of course, and without payment of costs, to amend his bill in any matters whatsoever, before any copy has been taken out of the clerk's office, and in any small matters afterwards, such as filling up blanks, correcting errors of dates, misnomer of parties, misdescription of prem- ises, clerical errors, and generally in matters of form. But if he amend in a ma- terial point (as he may do of course), after a copy has been so taken, before any answer, or plea, or demurrer to the bill, he shall pay to the defendant the costs occasioned thereby, and shall, without delay, furnish him a fair copy thereof, free OF AMENDING BILLS. 413 This is the language of the old Order, which is still in force, but the exception with respect to injunction causes has been abolished by the 58th section of the Chancery Amendment Act, by wliich it is enacted, that " Tiie practice of the Court of Chancery, with re- of expense, with suitable references to the places where the same are to be in- serted. And if the amendments are numerous, he shall furnish in like manner to the defendant, a copy of the whole bill as amended, and if there be more than one defendant, a copy shall be furnished to each defendant affected thereby." Equity Rule, 28. " After an answer, or plea, or demurrer is put in, and before replication, the plaintiff may, upon motion 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 plaintiff shall not be at liberty to withdraw 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 affidavit, that the same is not made for the purpose of vexation or delay, or that the matter of the proposed amend- ment is material, and could not with reasonable diligence have been sooner intro- duced into the bill, and upon the plaintiff's submitting to such other terms as may be imposed by the judge for speeding the cause." Equity Rule, 29. " If the plaintiff, so obtaining any order to amend his bill after answer, or plea, or de- murrer, 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 abandoned the same, and the cause shall proceed, as if no application for any amendment had been made." Equity Rule, 30 ; Story Eq. PI. § 886, note. By the Rules of Practice in Chancery in Massachussetts, " the plaintiff may amend his bill at any time before answer, plea, or demurrer, filed, of course, and without payment of costs; but if the defendant's appearance is entered, and the defendant shall have procured a copy of the bill, the plaintiff shall, at his own expense, furnish the defendant with a certified copy of the amended bill. No amendment shall be allowed, as of course, to a bill which has been sworn to by the party. If the defendant demurs to the bill for want of parties, or other de- fect, 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 days after the demurrer is filed, and notice thereof given to him, upon the payment of costs." Rules 10 & 11. And " upon the coming in of the defendant's answer, if the plaintiff shall find it necessary to amend his bill, in order to meet the case made by the defendant's answer, he may do so, by furnishing to the defendant a certified copy of the amended bill, at his own expense." Rule 18. For the rule in Maine, see 3d Rule of Chancery Practice, 37 Maine, 581. See Seelye v. Boehm, 2 Mad. 17G ; 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 subject, however, to the order of the Court. Rule 18, of Chancery Practice, 38 N. Hamp. 608. 35* 414 OF THE BILL. spect to injunctions for the stay of proceedings at Law shall, so far as the nature of the case will admit, be assimilated to the prac- tice of such Court with respect to special injunctions generally, and such injunctions may be granted upon interlocutory applica- tions, supported by affidavits, in like manner as other special in- junctions are granted by the said Court." It must not be supposed that the fact of the plaintiff not mak- ing his amendment within this period, precludes him from obtain- ing another similar order of course to amend upon the same terms at any time before an answer has been put in.^ We have now to consider the manner in which amendments are practically made in the printed bill now in use. By the 8th section of the Chancery Amendment Act,^ it is enacted that, " Upon the amendment of any bill of complaint or claim to be filed in the said Court, the provisions hereinbefore con- tained, with respect to filing, serving, and delivering printed copies thereof, shall, so far as may be, extend and be applicable to the bill or claim as amended : provided that, where, according to the pres- ent practice of the said Court, an amendment of a bill or claim may be made without a new engrossment thereof, or under such other circumstances as shall be prescribed by any General Order of the Lord Chancellor in that behalf, a bill or claim may be wholly or partially amended by written alterations in the printed bill of complaint or claim, so to be filed as aforesaid." As this section refers to the former practice, it will be convenient briefly to state what that practice was. If at the time when the order for amendment was made none of the defendants had appeared, the plaintiff was entitled to amend without payment of costs.^ So, also, if any of the defendants having appeared had not answered, and if no new engrossment of the bill was necessary, the plaintiff might amend without payment of any costs to them, upon procuring tlie office copies of the bills of such of the defendants as had taken them to be amended.* Again, if any of the defendants having answered, were not re- quired to answer further, and no new engrossment of the bill was 1 Nicholson V. Peile, 2 Beav. 497. ' 15 & 16 Vict. c. 86. ' Where no answer or plea has been filed, the plalntifT may amend without costs. Saunders v. Frost, 5 Pick. 259; DrouUard v. Baxter, 1 Scam. 191. * See ante, 412, 413, note. OF AMENDING BILLS. 415 necessary, the plaintiff might amend in like manner without pay- ment of any costs. In such cases the amendments in the office copies were made by the clerk of records and writs. If, however, the plaintiff required a further answer from any defendants who had answered, or if a new engrossment of the bill was necessary, then the plaintiff must have paid twenty shillings costs ^ to each defendant or set of defendants who had taken office copies or an- swered. The practice of the Court required, that if the amend- ments extended in any one place to a hundred and eighty words, or two folios, a new engrossment was necessary ; or, if the bill had been so often amended, that the amendment to be inserted, though under two folios, could not be interlined upon the record, or were so considerable as to blot and deface it, a new engrossment must have been made and annexed to the original record.^ This practice, in force before the system of printing bills was in- troduced, has now to be applied subject to the foregoing section of the statute, and subject to the two following Orders of August, 1852 : — ^ Boddington v. Woodley, 9 Sim. 380 ; Breeze v. English, 2 Hare, 638. ^ By the 10th Order of November, 1852, documents are counted after the rate of ninety words to the folio. This rule will be adhered to under the present practice. Stone v. Davis, 3 De G. M. & G. 240. 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, how- ever, is not the practice in all cases. See liUce v. Graham, 4 John. Ch. 1 70 ; Willis V. Evans, 2 Ball & Beat. 225 ; State Bank v. Reeder, Halst. N. J. Dig. 172. By these cases it appears that if there be not much new matter to be in- troduced, 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 the record from being defaced. The plaintiff may, however, set forth in the amended bill all the charges of the original bill. Fitzpatrick v. Power, 1 Hogan, 24. But see Walsh V. Smyth, 3 Bland, 9, 21 ; Luce v. Graham, 4 John. Ch. 170; WiUis v. Evans, 2 Ball & Beat. 225. In Walsh v. Smyth, ubi supra, it was held, that the original bill should be recited in the amended bill no further than is necessary to introduce the amendments, so as to avoid impertinency. See also Luce v. Gra- ham, m6i supra; Bennington Iron Co. v. Campbell, 2 Paige, 159; Pierce v. West, 3 Wash. c. c. 354. When amendments are made to a bill, if the plaintiff file or serve an entire new bill, incorporating therein, as well the original matter as the amendments, he must distinctly designate 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 new fact was stated, it was held unnecessary to serve process anew upon the defendant. Longworth v. Taylor, 1 McLean, 514. 41 G OF THE BILL. VII. Where, according to the present practice of the Court, an amendment of a bill or claim may be made without a new engross- ment thereof, a bill or claim may be amended by written alter- ations in the printed bill of complaint or claim so to be filed, and by additions on the paper to be interleaved therewith, according to the directions of Order I.^ VIII. The practice of amending a defendant's copy of the bill shall, with respect to the amendment of bills filed after these Orders come into operation, be abolished. By the forms of orders made by a judge in chambers for the amendment of bills, it appears that the usual practice is for the judge to order what amount of costs the plaintiff shall pay to the defendant upon the amendment of a bill. The draft of the amended bill is settled and signed by counsel,'^ and in addition to the signature of counsel, an amended information should be sanctioned and signed by the Attorney-General. The record of the bill, when amended, is marked with the date of the order, and of the day on which the amendment is made, and is thereupon filed.^ Where the order is made upon payment of costs, those costs should be paid or tendered before any further proceedings are had, otherwise the defendant may apply to the Court to stay such pro- ceedings until the plaintiff has fulfilled the condition by making the required payment.^ It may be observed, that, by the 29th of the Orders of 1828, it was provided, " That where a plaintiff is directed to pay to the defendant the costs of the suit, then 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 (ex- cept as to any amendment which may have been made by special leave of the Court, or which shall appear to have been rendered necessary by the default of such defendant), but there shall be deducted from such costs any sum or sums which may have been paid by the plaintiff according to the course of the Court at the time of any amendment." And by the 30th of the same Orders it is directed, that when upon taxation a plaintiff 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 unnecessarily made, the defendant's 1 Ante, p. 315. ' Order, 12th May, 1838. * Kirkley v. Burton, 5 Mad. 378. * Breeze v. English, 2 Hare, 638. OF AMENDING BILLS. 417 costs occasioned by such amendment shall be taxed, and the amount thereof deducted from the costs to be paid by the defend- ant to the plaintiff. Under the present practice, the costs of amendment will be ordinarily disposed of at the time. We have seen before that where a plaintiff, after answer, changes his whole case by amendment, special applications concerning the costs may be made by the defendant to the Court.^ It now remains to consider the circumstances under which a bill may be amended after answer.^ By the 16th Order of May, 1845, it is directed that, " In cases where there is a sole defendant, or where there being several defendants, they all join in the same answer, the plaintiff may, after answer and before replication or undertaking to reply, obtain one order of course for leave to amend the bill, at any time within four weeks after the answer is deemed or found to be sufficient." ^ " In cases where there are several defendants who do not join in the same answer, the plaintiff (if not precluded from amending, or limited as to the time of amending by some former order) may after answer, and before replication or undertaking to reply, at any time within four weeks after the last answer is deemed or found to be sufficient, obtain one order of course, for leave to amend his bill " ;* " but no further order of course for leave to amend a bill is to be granted after an answer has been filed, unless in the case provided for by Order 65." In computing this period of four weeks the times of vacation are not to be reckoned.^ A plaintiff is further, by Order 65, entitled ^ Ante, p. 410. ' See Droullard v. Baxter, 1 Scam. 191 ; Rules 29th and 30th of the Equity Rules of the Supreme Court of the United States; Rules 10th and 18th of the Rules for Chancery Practice in Massachusetts, ante, 412, 413, note. ' Before replication, the order to amend is of course. Buckley v. Corse, Sax- ton, 504. * 66th Order, May, 1845; and 16th Order, Arts. 32 and 33. ^ 14th Order, May, 1845, By the 8th Order of May, 1845, the Vacations to be observed in the several offices of the Court, except in the office of the Ac- countant-General, are to be four in every year, viz., the Easter Vacation, the Wbitsun Vacation, the Long Vacation, and the Christmas Vacation; and 1. The Easter Vacation is to commence and terminate on such days as the Lord Chancellor shall every year specially direct. 2. The Whitsun Vacation is to commence on the third day after Easter Term, and to terminate on the second day before Trinity Term in every year. 3. The Long Vacation is to commence on the 10th day of August, and ter- minate on the 28th day of October in every year. 4. The Christmas Vacation is to commence on the 24th day of December in 418 OF THE BILL. to an order for leave to amend a bill only for the purpose of recti- fying some clerical error in names, dates, or sums, which may be obtained at any time upon motion or petition without notice.^ But except for the limited purpose just mentioned, when an answer has once been put in by any one defendant, and the bill has been subsequently amended, the plaintiff is not entitled as of course and without notice to another order to amend ; and this rule applies notwithstanding some of the defendants may answer subsequently to the date of the amendment, and notwithstanding those defendants who have already answered consent to the plain- tiff's application.^ In the case of the Attorney-General v. Nethercoat,^ a defendant was added by amendment after answer, and Lord Cottenham de- cided, that upon the proper construction of the 13th Order of 1828, no further amendment of the bill could be made even as against the defendant so added, except upon a special application. Although the 13th Order of 1828 has been discharged, yet as the language of the Order substituted in its place is similar to that upon which the decision was made,* the rule established by the above case remains unaffected. For the purpose, however, of determining whether an order of course to amend can be obtained, an answer found insufficient, or the insufficiency of which is admitted by the defendant, must be considered as no answer, and consequently a motion to amend after such insufficient answer, or after a demurrer or plea over- every year, and terminate on the 6th day of the following month of January; and 5. The days of the commencement and termination of each Vacation are to be included in and reckoned part of such Vacation. ^ Such an amendment will render inoperative an order to take a bill pro con- fesso. Weightman v. Powell, 2 De G. & Sm. 570 ; Eyton v. Mostyn, 3 De G. & Sm. 518 ; North Durham Railway Company v. Allison, 2 De G. & Sm. 558. See ante, 412, 413, note. The defendant may, where he apprehends danger from a clerical mistake, in stating a deed or other instrument, in a bill, have the bill amended so as to identify the instrument on which the suit is brought, and pre- vent a second suit on the same. Ontario Bank v. Scherraerhorn, 10 Paige, 109. A mere clerical error may be amended in a bill, even after final decree. Don- nelly V. Ewart, 3 Rich. Eq. 18. 2 Bainbrigge v. Baddeley, 12 Beav. 152. « 2 M. & C. 604. * 66th Order, May, 1845. " No further order of course is to be granted after an answer has been filed." 13th Order, 1828. " No further leave to amend shall be granted after an an- swer and before replication, unless," &c. OF AMENDING BILLS. 419 ruled, is of course, and does not preclude the plaintiff from obtain- ing a further order of course for the amendment of his bill after a sufficient answer has been put in.^ It must, also, be recollected that an answer is deemed sufficient until the report of its insuffi- ciency is made and filed ; and furtlier, that an amendment of the bill, made previously to the filing of such report, operates as an admission of the sufficiency of the answer ; consequently, however insufficient an answer may be in fact, an amendment of the bill before the report of such insufficiency is filed will have the effect of preventing any further order to amend as of course. It has been decided that a plaintiff' having given notice of motion for a decree under 15 & 16 Vict. c. 86, but not having set the same down for hearing, may obtain an order of course to amend his bill, though the defendant has filed affidavits in opposition to the motion. 2 All the applications to amend hitherto considered are of course, and require no notice.^ But after an order of course to amend, obtained subsequently to an answer, the plaintiff may still make special applications for leave to make further amendments. For- merly special applications of this description were all made to the Master, but now by the 35th section of the act to abolish the office of Master,* the acts giving this jurisdiction to the Master are re- pealed, and in lieu thereof, by the o6th section, all the powers of the Master are, from the first day of Michaelmas Term, 1852, to be exercised by the Master of the Rolls and Vice-Chancellors ; and by the 26th section, applications for leave to amend are to be made to the judge in chambers, subject to his discretion, to direct the same to be heard in open Court. Moreover, by the 58th Order of October, 1852, " The powers and authorities given to the Masters in ordinary of the Court of Chancery, by any General Order or Orders of the Court, may be exercised by the judge sitting in chambers." If a special application is made within the period of four weeks from the time when the answer, or last answer, of the defendants is deemed sufficient, it may, under the 67th Order of May, 1845, be granted upon affidavit to the effect: —1. That the draft of the * Chase v. Dunham, 1 Paif^e, 572. ' Gill V. Rayner, 1 Kay & Joh. 395. For the manner in which orders of course are obtained, see post, Chapter on Motions. See ante, 412, 413, note. * 15 & 16 Vict. c. 80. 420 OF THE BILL. 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 material for the case of the plaintiff. Without such affidavits, the application cannot be granted, and they must be made either by the plaintiff and his solicitor, or by the solicitor alone, in case the plaintiff, from being abroad or otherwise, is unable to join therein.^ In the case of Bertolazzi v. Johnston,^ the original bill was filed against a sole defendant, after whose answer the plaintiff amended and made other persons parties defendants. A question there arose, whether the addition of parties to the bill had the effect of giving a new point of time from which the period was to be com- puted. Sir J. Wigram, V. C, decided that it did not do so. It may, however, be recollected that there is a general power in the Court to dispense, under very special circumstances, with the strict enforcement of the Orders concerning periods of time, and this discretion is expressly reserved by the 59th Order of October, 1852, which directs, that " The power of the Court, and of the judge sitting in chambers, to enlarge or abridge the time for doing any act, or taking any proceeding, and to give any special directions as to the course of proceeding in any cause or matter, is unaffected by these Orders. Before the Orders of 1845 the Masters had jurisdiction to grant leave to amend after replication ; ^ but it was necessary for that purpose that they should have been satisfied by affidavit, " that the matter of the proposed amendment was material, and could not with reasonable diligence have been sooner introduced into this bill." * In addition to this affidavit, which was all that was ^ 69th Order, May, 1845; Attorney-General v. The Corporation of London, 13 Beav. 313. The affidavit of the solicitor's clerk is not sufficient, though the facts be within his knowledge only. Christ's Hospital v. Grainger, 1 Ph. 634. « 2 Hare, 632. * The proper time to apply for leave to amend is, before the cause is at issue. And the cause is properly at issue, when the replication is in, and the pleadings are closed. Story Eq. PI. § 886. * 15th Order, 1828; Thorn v. Germand, 4 John. Ch. 363. If the plaintiflF files a replication to the answer after he is apprised of the necessity of an amend- ment to his bill, he precludes himself from making such amendment. Ver- milyea u. Odell, 4 Paige, 121. The application to amend should be made as soon as the necessity for an amendment is discovered. Rogers v. Rogers, 1 Paige, 424 ; Piatt V. Squire, 5 Cushing, 557. OF AMENDING BILLS. 421 directly required by tlie General Orders, Lord Cottenham seems to have considered that it was incumbent upon a plaintiff, apply- ing for leave to amend after replication, to depose to the facts re- quired by the 67th and 68th Orders of 1845, and also to state the nature of the amendments he proposed to make.^ The 68th Order of May, 1845, regulating the practice as to amendments after replication, is as follows : — " After the plaintiff has filed or under- taken to file a replication, or after the expiration of four weeks from the time when the answer, or last answer, is deemed suf- ficient, a special order for leave to amend a bill is not to be granted without further affidavit, showing that the matter of the proposed amendment is material, and could not with reasonable diligence have been sooner introduced into such bill. It may be observed, that the further affidavit to be made for the purpose of obtaining an order to amend after replication, or after four weeks from the sufficiency of the last answer, miist show that the proposed amendment is material ; and this cannot be established without tlie judge to whom the application is made being made acquainted with the nature of the amendment.^ The old practice was to allow the plaintiff, after replication, to amend his bill, for the limited purpose of adding parties without withdrawing his replication, and leave for amendments of this kind was obtained by motions of course, and it was decided, in the case of Brattle v. Waterman,^ that this practice still continued.* The 68th Order of May, 1845, like the 15th of 1828, did not in terms mention amendments by adding parties ; but as by the 65th Order ^ leave to amend, for rectifying clerical errors, may be ob- tained at any time, and no mention is made of amendments for adding parties ; it is presumed that now amendments for adding parties are subject to the same restrictions as amendments for gen- eral purposes. In support of this view, it may also be observed, that the 15th Order of 1828 had reference in terms to cases where the replication was withdrawn, and consequently from its language an inference could be drawn, that it was not intended to apply to M M. & C. 8 ; and see the cases of Stuart v. Lloyd, 3 Mac. & Gor. 187 ; Col- lett V. Preston, 3 Mac. & Gor. 432. " Philipps V. Goding, 1 H. 43 ; Brown v. RIcketts, 2 John. Ch. 425. * 4 Sim. 125. * Story Eq. PI. § 887. See Small v. Atwood, 2 You. & Jer. 512. * Page 417. VOL. I. 36 422 OF THE BILL. amendments for adding parties, which do not require the replica- tion to be withdrawn ; whereas the 68th Order of 1845 appears to apply to all amendments, whether of such a nature as to require the replication to be withdrawn or not. The Master of the Rolls acted upon this view, in the case of Hitchcock v. Jacques,^ but Vice-Cliancellor Wood has since determined that it was a motion of course, and that there were special circumstances in the case above mentioned.^ Where it is intended to amend a bill after replication filed, by the addition of new facts or charges, the proper course is to apply for leave to withdraw the replication and amend ; and it seems that an order of this description may be obtained upon application, supported by the affidavits required by the 67th and 68th Orders of 1845.3 Sometimes the Court, at the hearing, has ordered a cause to stand over, with liberty to the plaintiff to perfect his case by amendment, upon his paying the costs of the day. Thus, as we have seen, at the hearing, if the record appears to be defective for want of proper parties, the Court will allow the qause to stand over, for 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 others.^ So also, where a matter has not been put in issue with sufficient precision, the Court has, upon hearing tlie case, given the plaintiff liberty to amend the bill, for the purpose of making the necessary alteration.^ And so, as we have seen, the Court will sometimes, at the hearing, permit the prayer of the bill to be amended, so as to make it more consistent with the case made by the plaintiff than the one he has already introduced.^ And where a plaintiff had ' 9 Beav. 192. * Reported 18 Jur. 440. * Champneys v. Buelian, 3 Drew, 5. See Thorn v. Germand, 4 John. Cli. 363 ; Story Eq. PI. § 887; BhUsdell v. Stevens, 16 Vermont, 179; Brown v. Ricketts, 2 John. Ch. 425. * Ante, p. 422; Story Eq. PI. § 891. ^ The Court is now, as we liave seen, empowered to make a decree, notwith- standing errors in the form of a suit. Ante, p. 306. * Lord Red. 326, cites 2 Bro. P. C. 194 ; but see Filkin v. Hill, 4 Bro. P. C (Ed, Tomlin,) 640. See Conalley v. Peck, 3 Cal. 75 ; McDougald v. Williford, 14 Georgia, 665. ' Clifton V. Ilaig, 4 Desaus. 330, cited post, 424, in note; Lyon v. Tallmadge, OF AMENDING BILLS. 423 amended his bill, and by accident had omitted to insert in the amended bill the prayer for relief, although it was in the original bill, the Court has put off the cause in order that the plaintiff might have an opportunity to re-amend his bill by inserting it.^ Wherever improper submissions have been made in a bill on be- half 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 defend- ant ; 3 and where a matter has not been put, by the bill, properly in issue, to the prejudice of the defendant, 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. 5 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 plaintiff to the ex- pense of filing a new bill, instead of deciding upon the demurrer, given the plaintiff liberty to amend his bill on payment of the costs incurred by the defendant ; ^ because, after a demurrer al- 1 John. Ch. 184. If a formal charge of fraud were necessary, but had been omitted, the Court would grant leave to amend even at the hearing. Wambur- zee V. Kennedy, 4 Desaus. 480. But after a defendant has put in his answer on oath, the plaintiff cannot amend his bill and include in such amendment a waiver of the answer of the defendant on oath, so as to deprive him of the benefit of his answer to the amendments, so far as it may be responsive to the bill. Burras v. Loker, 4 Paige, 227; Bingham v. Yomans, 10 Gushing, 58; Chace v. Holmes, 2 Gray, 431 ; Rule 5, of the Mass. Rules for Chancery Practice. ' Harding v. Cox, 3 Atk. 583 ; Story Eq. PI. § 887. * Serle v. St. Eloy, 2 P. Wms. 386. * Plunket V. Joice, 2 Scho. & Lef. 159. * Lord Red. 327. * President of St. Mary Magdalen v. Sibthorp, 1 Russ. 154. 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. Lenoir v. Winn, 4 Desaus. 65 ; Kodgers v. Jones, 1 M'Cord Ch. 226; M'Kim v. Odom, 3 Bland, 407; Drum- mond r. Magruder, 9 Cranch, 122; Lewis v. Darling, 16 How. U. S. A peti- tion in Chancery in Connecticut can be amended after the facts in the case have been found by a committee. Camp v. Waring, 25 Conn. 520. ' See Marshall v, Lovelass, Cam. & Nor. 239, 264 ; Benzein v. Lovelass, Cam. & Nor, 520; Holliday v. Biordon, 12 Georgia, 417. After a special demurrer to a bill, the plaintiff may have leave to amend, on payment of costs. Rose v. 42-4 OF THE BILL. lowed to the whole bill, the bill is so completely out of Court that no amendment can take place ; ^ and where the demurrer is for want of parties, the Court, in general, annexes to the order allow- ing the demurrer a direction that the plaintiff shall be at liberty to amend his bill by adding parties thereto, provided they so amend within the usual period. But although the Court will sometimes, at the hearing, allow the case to stand over, with liberty for the plaintiff to amend his bill, the plaintiff ought to be careful before the cause comes on to have the record in a proper state, to enable the Court to make a complete decree upon the point ; for, as we have seen, the plaintiff himself cannot, when the cause comes on for hearing (unless un- der particular circumstances, or with 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 the pleadings, which are defective in a material point, it would af- terwards be liable to be set aside for error.^ 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 ob- tained on a special motion ; '* and therefore where an order to King, 4 Hen. & Munf. 475. So where a mere formal objection to a bill was made by demurrer ore ienus, the plaintiff was permitted to amend. Garlick v. Strong, 3 Paige, 440. So also upon the allowance of a demurrer for want of equity, upon the ground of a formal defect in the bill. M'Elwain v. Willis, 3 Paige, 505 ; Hunt V. Rousmaniere, 2 Mason, 342 ; Beauchamp v. Gibbs, 1 Bibb, 483. By Rule 1 1 of Chancery Practice in IMassachusetts, " if the defendant demurs to the bill for want of parties, or other 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 days after the demurrer is filed, and notice thereof given to him, upon the payment of costs." 1 Lord Coningsby v. Jekyll, 2 P. Wms. 300 ; S. C. 2 Eq. Ca. Ab. 59 ; Smith v. Barnes, Dick. 67 ; see also Mason v. Lake, 2 Bro. P. C. 495, 497 ; Bresseden v. Decreets, 2 Cha. Ca. 196; see Lloyd v. Loaring, 6 Ves. 773. A different rule prevails in IMassachusetts. Merchants' Bank of Newburyport v. Stevenson, 7 Allen, 491. See post, note to section "of the effect of allowing demurrers." ' Leave may be granted to amend the prayer of the bill after hearing. Clifton V. Haig, 4 Desaus. 330. If a formal charge of fraud were necessary, but had been omitted, the Court would give leave to amend even at the hearing. Wam- burzee v. Kennedy, 4 Desaus. 480. * This observation must now be taken subject to the 49th section of 15 & 16 Viet. c. 86, ante, 306. * Carleton v. L'Estrange, 1 Turner & R. 23 ; and see 50th Order of May, 1845. OF AMENDING BILLS. 425 withdraw replication to a pica, and amend, was obtained as a mo- tion of conrse, it was discharged for irregularity, and the amended bill taken off the file.^ It may be mentioned here, that until very recently injunctions to stay proceedings at Law issued as of course upon tlie defendant making default in appearing to a bill praying for such relief, or upon the defendant having appeared and failed to put in an answer within a very limited period. After an injunction had thus been obtained, the question arose when and within what time the plain- tiff could amend his bill and maintain his injunction. By the 15 & 16 Vict. c. 86, s. 58, it is now enacted, " that the practice of the Court of Chancery with respect to injunctions for the staying of proceedings at Law should, so far as the nature of the case will allow, be assimilated to the practice of such Court with respect to special injunctions generally, and such injunctions may be granted upon interlocutory applications, supported by affidavit in like man- ner as other special injunctions are granted by the said Court. And by the 45th Order of August, 1852, " No injunction for stay of proceedings at Law is to be granted as of course for default of ap- pearance or answer to the bill." Any peculiarities of practice, with respect to what have hitherto been called common injunctions, will now be treated of in the subsequent Chapter upon Injunctions. It may be important, however, to observe, that an insufficient answer has always been considered as no answer, and consequent- ly when an answer is found insufficient, or when the defendant submits without argument to the exceptions, the plaintiff is at lib- erty to amend his bill as if no answer had been put in, and he can then obtain an order that the defendant may answer the amend- ments and the exception at the same time.^ When the plaintiff * It has been held that, as Rule 29 of the Circuit Court of the United States makes no provision for amending a bill after issue joined and depositions taken, it is to be construed as prohibiting it, at least except under verv special circum- stances. Ross V. Carpenter, 6 IMcLean, 382. * See Renwick v. Wilson, 6 John. Ch. 81 ; M'Mechen v. Story, 1 Bland, 184 ; Barnes v. Dickinson, Dev. Eq. 326; Read v. Consequa, 4 Wash. C. C. 174. In Massachusetts, upon the coming in of the defendant's answer, if the plaintiff shall find it necessary to amend his bill, in order to meet the case made by the defen- dant's answer, he may do so, by furnishing to the defendant a certified copy of the amended bill, at his own expense ; and the plaintiff may also, at the same time, except to the defendant's answer to the bill, as originally filed. And in such case, if the defendant shall submit to answer further, or shall be ordered to answer further, he shall answer the amendments of the bill, and shall furnish a 36* 426 OF THE BILL. obtains an order of this kind, the original and amended bill be- comes one record, and the defendant under the old practice must have fully answered ,both before he could move to dissolve the in- junction. It has always been the practice of the Court, where an injunction was originally granted upon affidavit of merits, to allow a motion to amend without prejudice to the injunction to be ob- tained as of course ; ^ and the original practice will now apply to the case of injunctions to stay proceedings at Law. By the 35th Article of the 16th Order of May, 1845, " The plaintiff having ob- tained an order for leave to amend his bill without prejudice to an injunction, must amend such bill within seven days from the date sufficient answer to the bill as originally filed, at the same time. Rule 18, of the Massachusetts Rules for Chancery Practice. Under the general rule allowing the plaintiff to amend, upon an insufficient answer, he cannot amend by leaving out the name of the defendant, and thus discontinue the suit against him, without costs. Chace i'. Dunham, 1 Paige, 572. See Wilkinson v. Belsher, 2 Bro. C. C. 272. 1 Pratt V. Archer, 1 S. & S. 433. See Renwick v. Wilson, 6 John. Ch. 81 ; Ayers v. Valentine, 2 Edw. Ch. 451. An injunction bill will not be amended unless the proposed amendments are distinctly stated to the Court, and verified by the oath of the plaintiff; nor unless a sufficient excuse is rendered for not in- corporating them in the original bill. Rogers v. Rogers, 1 Paige, 424 ; Carey v. Smith, 11 Georgia, 539. See West v. Coke, 1 Murphy, 191. In Massachusetts, " no amendments shall be allowed, as of course, to a bill which has been sworn to by the party." Rule 10, of the Rules for Chancery Practice. And so, generally, where the bill is upon oath, there is greater caution exercised in reference to amendments. Cock v. Evans, 9 Yerger, 287 ; Verplanck V. Merct. Ins. Co. 1 Edw. Ch. 46 ; Swift v. Eckford, 6 Paige, 22 ; Lloyd v. Brewster, 4 Paige, 538 ; Parker v. Grant, 1 John. Ch. 434 ; Rogers v. Rogers, 1 Paige, 424 ; Whitmarsh v. Campbell, 2 Paige, 67, And the Court may require the amendments to any sworn bill to be themselves sworn to. Semmes v. Boy- kin, 27 Georgia, 27. See Latham v. Wiswall, 2 Ired. Ch. 294 ; McDougaJd v. Dougherty, 11 Georgia, 570. The amendments made to a sworn bill must be consistent with the original bill ; and they must be made without striking out any part of the original bill, but by introducing a supplemental statement. Verplank v. Merct. Ins. Co. 1 Edw. Ch. 46; Carey v. Smith, 11 Georgia, 539; Rogers v. Rogers, 1 Paige, 424; Whit- marsh V. Campbell, 2 Paige, 67. An application 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 ; Whitmarsh v. Campbell, 1 Paige, 67; Everett v. Winn, 1 Smedes & M. 67. And the truth of the matter proposed as an amendment should be sworn to in addition to the jurat upon the petition for leave to amend. Rogers v. De Forest, 3 Edw. Ch. 171. But no alteration should be made in the original bill on file, but the amended bill must be engrossed anew and annexed to the original. Layton v. Ivans, 1 Green Ch. 387. OF AMENDING BILLS. 427 of the order. If such bill be not amended within such seven days, the order for leave to amend becomes void, and the cause as to dis- missal stands in the same situation as if such order had not been made." As this Order simply uses the term injunction, without specifying whether a common or special injunction was intended, it may be assumed that the plaintiff is bound to amend within seven days from the date of the order in a- cause where a special injunction has been granted ; and consequently now the Order will apply to all injunction suits. When, after one amendment in such a cause, the plaintiff has to apply specially for leave to amend a second time, it would seem that it would be necessary for him to establish that the amendments relate to facts, of which the plaintiff had no knowledge, to have enabled him to bring them sooner be- fore the Court.^ It may be observed, that from the case of the Attorney-General V. Cooper,^ it appears, that the fact of an irregular amendment having been made »inder a common order to amend, will not be a sufficient 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 ir- regular amendment was made. It has been the practice, heretofore, that when the plaintiff amended his bill after answer, without requiring any further an- swer, the order for amendment should have contained a recital to that effect, otherwise it would have been irregular.^ Now, however, as a general rule, no answer need be put in by a defendant, unless he is specially called upon so to do by interrog atories filed for his examination, consequently it is presumed that no necessity now exists for such a recital.* If the amendment be before answer, it seems that no additional subpcena need be served upon the defendant, but he is entitled to the full time for answering, from the time when he is served with notice of the amendment.^ If the amendment be after answer, and a further answer be required, a subpcena must be served, but service on the defendant's solicitor is sufficient.^ * Sharp V. Ashton, 3 V. & B. 144 ; Rogers v. Rogers, 1 Paige, 424. 1 * 3 M. & C. 258 ; and see Ainslie i'. Sims, 17 Beav. 174. ' Baddington v. Woodley, 9 Sim. 380. * 15 & 16 Vict. c. 86, § 13 & 15 ; Kennedy v. Lewis, 14 Jurist. 166. * See Cunningham v. Pell, 6 Paige, 655 ; Lawrence v. Bolton, 3 Paige, 294. 26th Order, May, 1845, and see post. Chapter on Answers; Longworth v. Taylor, 1 M'Lean, 514. 428 OF PROCESS TO COMPEL APPEARANCE. CHAPTER VII. OP PROCESS TO COMPEL APPEARANCE. Section I. — Service of the Copy of the Bill. As soon as a bill lias been filed, the plaintiff may proceed to bring before the Court the proposed defendants to the suit. We have seen, however, that it is not necessary that all who are to fill this character, should be adverse to the plaintiff, or interested in resisting the decree sought to be obtained. It will be recollected that the defendant is now by express enact- ment to be " served with a printed bill of complaint or claim," or in certain special cases with a written copy of a bill,^ and the filing of a printed bill of complaint or claim is to have the same effect as the filing of a bill of complaint or claim and the issuing of a subpoena or writ of summons now has ; and the service upon the defendant of a printed bill of complaint or of a claim so filed, with such indorsement thereon so stamped as aforesaid, is to have the same effect as the service on him of a writ of subpoena or writ of summons now has, and is to entitle the plaintiff to such reme- dies for default of appearance, or otherwise, as he is now entitled to in case of due and proper service of a subpoena to appear to and answer a bill of complaint or of a writ of summons to a claim. It will be necessary, therefore, now to investigate what was the effect of issuing a subpoena or writ of summons, and what was the mode of service of that form of process.^ ^ Ante, p. 317. * The former English practice of compelling the appearance of the defendant by issuing and serving a writ of subpoena is still adhered to In the Circuit Courts of the United States, and in Massachusetts and some other State Courts. Under this practice the first step usually is, to sue out and serve a subpoena, which is a writ issuing out of the Court, and directed to the party himself, commanding him to appear (according to the old form of the writ), under a certain penalty therein expressed, {subpoena centum librarum,) and answer to the matters alleged against him. It is to be observed, that the writ of subpccna differs from the other writs of process, in being directed to the party himself whereas the subsequent writs or orders are directed, not to the party himself, but certain ministerial oflicers, com- manding them to take certain proceedings against the defendant, calculated to enforce his obedience. SERVICE OF THE COPY OF THE BILL. 429 It should, however, be mentioned, that by the 23d Order of 1841, a privilege was conferred of serving parties, against whom no di- It would seem, according to the American practice, that the bill ought in all cases to be filed before or at the time of issuing the subpoena. 1 Iloff". Ch. Pr. 101, note; ante, 400, 401, notes; Rule 3 of Chancery Practice in Massachusetts; Rule 1 1 of the Equity Rules of the U. States Courts. By the 7th Equity Rule for the U. States Courts, it is provided that the process of subpoena shall constitute the proper mesne process in all suits in Equity, in the first instance, to require the defendant to appear and answer the exigency of the bill; and by Rule 12, whenever a bill is filed, the clerk shall issue the process of subpoena thereon, as of course, upon the application of the plaintiff, which shall be returnable into the Clerk's office the next rule day, or the next rule day but one, at the election of the plaintiflf, occurring after twenty days from the time of the issuing thereof. Where there is more than one defendant, a writ of subpoena may, at the election of the plaintiflf, be sued out separately for each defendant, except in the case of husband and wife defendants, or a joint subpoena against all the defendants. By Chancery Rule 4, § 1, in New Jersey, the names of all the defendants in one cause shall be inserted in one subpoena, unless the defendants reside in differ- ent counties, in which case the names of all those who reside in the same county shall be inserted in the same subpoena; by^ 2, copies of tickets served with the subpoena upon the defendants shall be annexed to and returned with the subpoena. In Massachusetts, the subpoena 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. Genl. Sts. c. 123, § 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 6, of the Rules of Chancery Practice. In Maine, " a subpoena in the form prescribed shall issue on the filing of the bill with the Clerk ; and it may be made returnable 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 served upon the defendants at least twelve days before the sitting of the Court to which the bill is preferred. Central Manuf. Co. v. Hartshorne, 3 Conn. 199. In Massachusetts, when the bill is not inserted in an original writ, as provided by statute, the original process to require the appearance of defendants shall be a subpoena, in form following : — " Commomvealth of Massachusetts. " , ss. To A. B., of (addition.) Greetixg : " [l. s.] We command you that you appear 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 a bill of complaint exhibited against you in our said court, by C. D. of (addition), and 430 OF PROCESS TO COMPEL APPEARANCE. rect relief was sought, 'with a copy of a bill, and thus not compel- ling them to put in any answer to the bill. This Order, though to do and receive what our said Court shall then and there consider in that behalf. Hereof fail not, under the pains and penalities of the law in that behalf provided. " AVitness G. T. B., Esquire, the day of , in the year of our Lord " A. H., Clerk." "WTien the process is made returnable at a rule day, the subpoena shall be altered acconlingly. Rule 6, of the Rules of Practice in Chancery. The writ of subpoena shall be served by the same officers 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 subpoena or order of notice may issue, re- turnable at the same term, if the Court shall so order, and such further proceed- ings may be had at the same term as the Court may direct. If filed in vacation, a subpoena or order of notice may be issued by the Clerk as of course, returnable at the next law term." Rule 11, 38 N. Hamp. 607. Every such subpoena or order of notice must contain an order on the defendants to deliver to the plain- tiff's solicitor, within two months after the service thereof, his plea, answer, or demurrer, otherwise the bill to be taken as confessed. Rule 15. Rule 12 pro- vides that " subpoenas shall be served by the same officers and in the same man- ner as original writs of summons are by law to be served, and the plaintiff shall also 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 subpoena, or within fifteen days afterwards." As to the service of an order of notice. Rule 13 pro- vides that " due service of an attested copy of the bill and order of notice, shown by affidavit of the person giving or leaving the same, or by return of an officer, shall be deemed sufficient notice of the suit." In this State the subpoena is di- rected to the defendant, and is in form similar to that above for Massa(;husetts, with the addition of a command to the defendant to deliver to the plantiff's solic- itor, 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 New Hamp. 624. The order of notice above provided for is an order, signed by the Clerk, directing the plaintiff to give notice to the defendant to appear at the next law term of the Court, and answer the bill, by serving on him an attested copy of the bill and of the order, at least fourteen days before the term. This order further directs the defendant to deliver to the plaintiff's solicitor, his answer in writ- ing, as in the case of the subpoena above referred to. See Form, 38 N. Hamp. 614. In Maine, the subpoena is directed to the sheriffs of the counties or their dep- uties, with a command to summon the defendant to appear according to the direc- tions 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 return of their proceedings. See Form, 37 Maine, 5t)4, 595. When the bill is not inserted iu a writ of attachments, a subpoena in the form prescribed SERVICE OF THE COPY OF THE BILL. 431 not repealed, has become so entirely obsolete that no further men- tion need be made of the practice tliat grew up under it.^ All parties are now served with a copy of the bill, and it is not incum- bent upon a plaintiff to compel an answer from any party ; and as a general rule, it is not incumbent upon him to make parties there- to persons against whom no direct relief is sought. shall issue on the filing of the bill with the Clerk, and be sei-ved by copy, accom- panied 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 original 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 established by the Court. Genl. Sts. c. 113, § 3. In Maine, the bill may be inserted in a writ of attachment, and when so in- serted, 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 days. Rule 2, 37 Maine, 581. When a party is charged in a bill in the capacity in which he is liable, as ex- ecutor, &c., it is not ground of demurrer, that the subpoena was issued to him generally, not stating the capacity in which he is sued. Walton v. Herbert, 3 Green Ch. 73. On the filing of a bill in Equity in the Supreme Court of the United States by the State of Florida against the State of Georgia, the. Court directed that process of subpoena issue against " The State of Georgia." State of Florida v. Georgia, 1 1 How. U. S. 293. The statute prohibiting the service of civil process in the city of New York on the days of charter elections, does not apply to a subpoena and injunction issued out of the Court of Chancery. Wheeler v. Bartlett, 1 Edw. Ch. 323. ' With reference to the service of a copy of the bill upon parties not directly- interested, it appears that the old practice under the Order of the 23d August, 1841, is not entirely obsolete. Where parties proceed under this Order, a plain copy of the bill is served without stamps and without indorsement. In ordinary cases the indorsement upon the bill is according to the Act of Parliament. Where, however, a body corporate is to be served, the note in the indorsement varies, and is as follows : — Note. — "If you fail to comply with the above directions you will be liable to have your lands, tenements, goods and chattels distrained, and other proceedings against you." When the Attorney-General is served, the usual indorsement is omitted. So, also, in the case of a peer defendant, the usual indorsement has been omit- ted and a letter missive accompanying the bill has been served. Under the old practice, service of a subpoena upon a peer was necessary to ground an order nisi for sequestration, and, as the service of a copy of the bill, icith the indorse- ment, is to have the effect of a subpoena, it would appear that a second copy of the bill, with the indorsement, would have to be served upon a peer before an, order nisi could be obtained for sequestration. No case has yet occurred in prac- tice. In the text it is assumed, that a peer would, since the abolition of a sub- 432 OF PROCESS TO COMPEL APPEARANCE. There are two kinds of service of writs, requiring what is called personal service. One, the ordinary service, which requires no leave from the Court ; the other, extraordinary service, which re- quires a special order of the Court to render it valid, and is not used except under special circumstances, when the ordinary ser- vice cannot he effected. Ordinary service must be within the jurisdiction of the Court,^ and is effected either by delivering a copy of the writ or document to the person to be served, and at the same time producing the original writ, or else by leaving such copy at the dwelling-house of poena, be served like any other defendant with a copy of the bill, with the usual indorsement; and it is suggested that this would be the simple and correct practice. The indorsement on bill for service abroad, for appearance and answer, is a3 follows : — Victoria R. To the within-named defendant A. B., greeting : We command you, that on or before the 20th day of May, 1856, you cause an appearance to be entered for you in our High Court of Chancery to the within Bill of Complaint of the within-named C. D., and that on or before the 31st day of January, 1857, you do put in your answer to the same Bill, and that you observe what our said Court shall direct. Witness ourself at Westminster, the day of , in the year of our reign. Note. — If you do not cause an appearance to be entered within the time limited above, the plaintiff will be at liberty to enter an appear- ance for you at your expense, and if you do not plead, answer or demur to the said Bill within the time limited above, you will be subject to such process as the Court shall award, and to such order or decree be- ing made against you as the Court shall think just, upon the plaintiff's own showing. Appearances to be entered at the Record and Writ Clerks' Office, Chan- cery Lane, London. The time limited to appear and answer is stated in the Order which is obtained for service abroad. The foregoing form on the service of a copy of the bill without the jurisdic- tion seems now to be established. ^ The service of a subpoena must be within the jurisdiction, otherwise it is irregular. Dunn v. Dunn, 4 Paige, 425 ; Creed v. Bryne, 1 Hogan, 79 ; Johnson V. Nagle, 1 Molloy, 243 ; Hawkins v. Hale, 1 Beavan, 73. But the defendant may voluntarily appear or stipulate in writing to accept out of tlie jurisdiction a service as regular. Dunn v. Dunn, ubi supra; Picquet v. Swan, 5 Mason, 56L See Henderson v. Hopper, Halst. Dig. 1 70. But in Tennessee, where service of a subpoena has been made upon one material defendant in the proper district or county, a subpoena may be served upon any other defendant out of the county or district. University v. Cambreling, 6 Ycrger, 70. SERVICE OF THE COPY OF THE BILL. 433 the person to be served/ and at the same time producing tlic origi- nal writ to the person with whom such copy is lert.'-^ With respect to service of a bill, it is enacted, that it shall not be necessary to produce the original bill or claim, which will be on the files of the Court.^ When the copy is left at a dwelling-liouse, it is necessary that it should be tlie place where the defendant actually resides, and the mere leaving the writ or the copy at a defendant's ordinary place of business, if he does not reside there, will not be good ser- * In the 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 personally, or, in the case of husband and wife, to the husband personally, or by leaving a copy thereof at the dwelling-house or usual place of abode of each defendant, with some free white person, who is a member or resident in the family. 13th Etjuity 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 otherwise ; in the latter case, the person serving the process shall make affi- davit thereof. 15th Equity Rule. Whenever any subpoena shall be returned, not executed as to any defendant, the plaintiff shall be entitled to another subpoena, ioties quoties, against such defendant, if he shall require it, until due service is made. 14th Equity Rule. In Massachusetts, " if a party is not found, a copy of the subpoena may be lefl at his usual place of abode ; and, the truth of the case being returned by the officer, if it shall be made to appear to the Court that the party has actual notice of the suit, no other service shall be required ; but the Clerk shall issue other similar process, if the same shall be re(juired by the party at whose instance the first was sued out ; and if, upon such second process, the party be not found, a copy shall be again left, in like manner as hereinbefore directed ; and upon a second return that the party is not found, and that a copy has been left, as is herein directed, the same proceedings may be had as if the process had been served on the defendant." Rule 6, of the Rules of Practice in Chancery. In some States the subpoena may be served by any person : as in Maryland, Hoye V. Penn, 1 Bland, 29 ; Taylor v. Gordon, 1 Bland, 132 : so in New Jersey, West V. Smith, 1 Green Ch. 309 : but the service, if made by any person other than a legal officer, must be proved. Hoye v. Penn, 1 Bland, 29. In Vermont, service of a subpoena cannot be made by an indifferent person not named in it. Allyn v. Davis, 10 Vermont, 547 ; Burlington Bank v. Cottin, 11 Vermont, 106. As to Kentucky, see Trabue v. Holt, 2 Bibb. 393 ; Barnett v. Montgomery, 6 Monroe, 327. In New Hampshire, where a private person may make service of process by copy, he may himself certify and swear to the copy. Stone V. Anderson, 5 Foster (N. H.), 221, 2 4th Order of December, 1833 ; Earl of Chesterfield v. Bond, 2 Beav. 263, where subpoena was sealed up in a letter. See Howard v. Palmer, Walker Ch. 391. * Ante, p. 314. VOL. I. 37 434 OF PROCESS TO COMPEL APPEARANCE. yice ;^ and therefore where, under tlic old practice, a subpoena, re- turnable immediately, was moved for upon affidavit, slating that the defendant lived at Epsom, but that he had chambers in the Temple and resided there. Lord Tliurlow said tbat, 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 subpana, returnable immediately, 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, and a motion was made at the instance of the defendant to set aside the sequestration for ir- regularity, Lord Thnrlow said he could not suppose that the de- fendant, 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 actually did attend, the House, and therefore re- fused to grant the motion. And so where a letter missive, and subsequently a subpoena, 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 in a case where a let- ter missive, and afterwards a subpoena, had been served at the town ^ See Johnston v. Macconnel, 3 Bibb, 1. A copy of the subpoena left at the residence of a party domiciled in the State, and temporarily absent therefrom, is sufficient, unless it is made to appear that he has been surprised. Southern Steam Packet Co. v. Roger, 1 Cheeves, 48. Where the defendant has no family, but boards or makes it his home in the family of another, the subpoena to appear and answer may, in his absence from home, be served upon either of the heads of the family, at such place of his abode, although he had no wife or servant. But to make such service regular, the place of service must be his actual place of residence at the time, and his absence therefrom must be merely temporary. People V. Craft, 7 Paige, 325. See Bickford v. Skewes, 9 Sim. 428. The per- sonal service of a subpoena on a defendant, who is confined in the State's prison for a term of years, is regular. 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. Johnson, Walker Ch. 309. For service on a defendant under criminal sentence, see further, Newen- ham V. Pemberton, 2 Cott. 54. The return to a subpoena against A. and B. was as follows : " Executed on A., — B. not found " ; and this was held insuflicient to found a decree. Pegg r. Capp, 2 Blackf. 275. In Illinois, where a summons in Chancery is 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 defendant's family. Townsend v. Griggs, 2 Scam. 365. 2 V. Shaw, Hind. 92. ' Attorney-General *;. Earl of Stamford, 2 Dick. 744. SERVICE OF THE COPY OF THE BILL. 435 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 is effected in the same manner as upon an adult.''^ Where a luisband and wife are defendants, ordinary service upon the husband alone is sufficient ; ^ and process of contempt may then be awarded against the husband for default of the wife.'^ When a bill is filed against a husband and wife, in respect of a demand out of the separate estate of the wife,^ or in respect of an estate of a deceased person, of whom the wife is the personal rep- resentative,^ and the husband is abroad, it seems that service may be effected upon tlie wife : no compulsory process, however, can be issued against the wife, grounded upon such service, without a pre- vious order of the Courts ^ Thomas y. Earl of Jersey, 2 M. & K. 398 ; and see Davidson v. Marchioness of Hastings, 2 K. 509. ^ Process ought to be served personally on infants. Massie v. Donalson, 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 the jurisdiction, was held sufficient, al- though the minor resided out of the jurisdiction. Kirwan v. Kirwan, 1 Hogan, 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 than fourteen years of age. Sanders v. Godley, 23 Alabama, 473. But when the parent and child are both parties, a service on the parent alone is not sufficient to bring the infant be- fore the Court. The subpoena should be served on the parent for the infant, and this should appear by the officer's return. Hodges v. Wise, 16 Alabama, 509. Where a bill has been served on an infant, there is no necessitv for servinjj the same again on the guardian ad litem after he is appointed. Jones v. Drake, 2 Hayw. 237. Upon a bill against a lunatic in the custody of a committee, service of process upon the committee is sufficient. Gates v. Woodson, 2 Dana, 455. * See Leavitt v. Cruder, 1 Paige, 421. * Gee V. Cottle, 3 M. & C. 180. ^ Dubois V. Hall, 2 Vernon, 613. See Dyett v. N. A. Coal Co. 20 Wendell, 570. * Bunyan r. Mortimer, Mad. & Geld. 278. ^ Where the plaintiff seeks relief out of the separate estate of the wife, the subpoena must be served on her personally, and she may put in a separate an- swer ; the husband 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 of subpoena, the wife being out of the State, an order of publication shall be taken against her, unless an appearance be entered for ber. Chancery Rule 6, § 2. 436 OF PROCESS TO COMPEL APPEARANCE. If a corporation be defendant, the bill may be served upon any one of its members.^ If one of the defendants^ was entitled to the privilege of peer- age, he was formerly entitled to a letter missive before a subpoena could issue against him. This privilege seems to be now wholly abolished. The Attorney-General used not to be served with a subpoena, but with a copy of the bill.^ Hence, now the practice with re- spect to the Attorney-General will be the same as with respect to other defendants. By the 26th Order of May, 1845, service upon a defendant's so- licitor of a subpa3na to answer an amended bill, or to hear judg- ment, is to be deemed good service upon the party .^ And now by the 10th Order of August, 1852, it is directed, that " in all cases where, according to the present practice of the Court, a subpoena to appear to and to answer an amended bill may be served upon the solicitor of a defendant, service upon the defend- ant's solicitor of a copy of an amended bill, whether wholly print- ed or partly printed, or partly written, should be good service on the defendant. And by the 11th of the same Orders, where a defendant has appeared in person to any bill, service at the address for such de- ^ Maclaren v. Stainton, 16 Beav. 279. 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 corpora- tion. De Wolf V. Mallett, 3 Dana, 214. ^ Robinson v. Lord Rokeby, 8 Ves. 601. ^ Lord Red. 39. Where the United States or a State is interested, the Dis- trict Attorney or the Attorney-General must be served with a copy of the bill. If he omits to enter an appearance, an order may be obtained on petition, that he appear within a certain time, or the bill be taken as confessed. 1 HofF. 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. Rules of Supreme Court of the United States, December Term, 1858, No. 5. In New Jersey v. New York, 3 Peters, 461, it was held that where the bill is brou"-ht by one State against another, the subpoena must be served upon the Gov- ernor and Attorney-General of the defendant State, and a service on the Gov- ernor alone, there being no appearance entered for the defendants, will not au- thorize the Court to proceed. See Iluger v. S. Carolina, 3 Dall. 339. * Personal service, out of the jurisdiction, of a subpoena to hear judgment or to show cause against a conditional decree, is good service. Nolan v. Nolan, 1 Moll. 243. SERVICE OF THE COPY OF THE BILL. 437 fendant of a copy of an amended IjUI, whether wholly printed, or partly printed and partly written, shall be good service on the de- fendant. In the event of the plaintiff finding himself nnable to effect ordi- nary service upon a defendant in the manners above mentioned ; in the different cases respectively, he must consider whether there is any mode of extraordinary service applicable to his case to be obtained by special motion to the Court. In order to determine this point, it becomes necessary to con- sider, 1st, What is the general jurisdiction and practice of the Court in ordering extraordinary service, independent of any Act of Parliament ; and 2dly, What additional jurisdiction has been given to the Court of Chancery by Statute Law. As to the general jurisdiction of the Court,^ it would seem, that independent of any statute, there is no power in the Court of Chancery to order actual personal service to be effected out of the jurisdiction, but that in some cases the Court has assumed the power of ordering a service to be effected within the jurisdiction, upon some person other than the absent defendant, and has treated such service as valid against him. Now by the 15 & 16 Vict. c. 86, § 5, it is enacted, that the Court shall be at liberty to direct substituted service of such printed bill or claim in such manner and in such cases as it shall think fit. It will still be convenient to state the old practice, as that will guide in some respects the discretion of the Court. The cases upon the general jurisdiction of the Court, to order . substituted service, did not establish a very clear principle ; and upon an application of this description to Sir J. L. Knight Bruce, B. C, he made the fact of the conflicting decisions upon the sub- ject a reason for recommending that the motion should be made in the first instance to the Lord Chancellor.^ The jurisdiction is most frequently exerted where actions at Law are brought by persons resident abroad to enforce demands which, although they have, strictly speaking, a legal right to make, it is against the principles of Equity to permit. In such cases, the Court will interfere by injunction, served upon the attorney em- ^ Lorton v. Kingston, 2 Mac. & Gor. 139. ^ Noad r. Backhouse, 2 Y. & C. 529. See the observations of the Lord Chan- cellor in Hope v. Hope, 4 De G. Mac. & Gor. 341. 37* 438 OF PROCESS TO COMPEL APPEARANCE. ployed ill this country to conduct the proceedings at Law, to restrain the further prosecuting of such proceedings until his em- ployer has submitted himself to the jurisdiction.^ In order to accomplish this purpose, it is permitted to the plain- tiff in Equity, in the first instance, to ol)tain an order, directing that service of the subpoena upon the attorney employed in the cause at Law shall be deemed good service. The application for this order must be supported by an affidavit, verifying the facts in the bill, usually denominated an affidavit of merits.^ It seems that the affidavit in this case must be made by the plaintiff in Equity himself, and that unless the solicitor has per- sonal knowledge of the merits of the cause, his affidavit will not be sufficient.^ It has also been decided, that it is not necessary that the affidavit should state a previous refusal by the attorney to accept a subpoena.* A motion for substituted service, under these circumstances, is generally made without notice ; in the following case, however, the notice was deemed necessary. An agent had effected a policy for his principal, who resided in Spain, and afterwards brought an action in his own name only against the underwriters and others, who filed a bill for an injunction against both the principal and agent ; the agent appeared and answered, and in eight days the usual affidavit of merits was sworn, and a motion was made for an injunction against the principal ; the counsel for the agent, how- ever, objected to the motion for want of notice, and the Court held, that though in ordinary cases notice is not necessary, yet that . it was so in the present case, the action having been brought in the name of the agent only.^ The Court, it is said, does not expect a plaintiff to verify all the allegations in his bill with the same precision that is required in an answer ; it will be sufficient if he substantiate the general heads of Equity, which will entitle him to an injunction ; ^ but a ^ Per Lord Thurlow, Anderson v. Lewis, 3 Bro. 429. " Delancy v. Wallis, 3 Bro. C. C. 24 ; and see Stephen v. Cini, 4 Ves. 359 ; FuUarton v. Wallace, ib. 3G0, n. ; Anderson r. Darcey, 18 Ves. 447 ; White v. Klevers, ib. 471; Kenworthy v. Aceunor, 3 Mad. 550; Baillie v. Larkens, cited ib. ' Kenworthy v. Aceunor, uhi supra. * French v. Roe, 13 Ves. 593. " Crew V. Mertin, 1 Fowl. Ex. Pr. 225. • Nunes v. Jaffray, 1 Fowl. Ex. Pr. 226. SERVICE OF THE COPY OF THE BILL. 439 material variance between the bill and the afBdavit would Ije fatal. Thus — where the bill stated that bills of exchange, which were the subject of the action, were lent for the defendant's accommo- dation, whereas the affidavit stated that they were given to the de- fendant to pay the balance of his account to the plaintiffs, which they afterwards found to be erroneous.^ In one case, however, an affidavit of merits was dispensed with entirely. An agent had effected a policy for his principal who resided abroad, and a bill was filed to restrain proceedings in an action brought upon it; to which the agent put in his answer, ad- mitting the material facts of the bill. An injunction was moved for upon these admissions, until the answer of tlie other defendant should come in, and an objection was made, that there ought to have been an affidavit ; the Court, however, overruled it, and granted an injunction, considering the admissions equivalent to an affidavit.^ The practice of ordering substituted service of process to be good service, where a defendant was abroad, appears formerly to have been permitted to a much greater extent than at present. And in modern times the facility with which actual service can be effected upon defendants abroad has rendered this practice of comparatively rare occurrence. Although it is in general true that, except in injunction cases, the Court will not order substituted service to be good service upon defendants who are out of the jurisdiction, yet it seems that, in cases where the party out of the jurisdiction has appointed another to act as his agent in respect of the property which is the subject-matter of the suit, and such agent has been made a party to the suit, for the purpose of serving him with an injunction to restrain his dealing with such property, the Court has permitted service upon the agent to be considered good service upon his employer.^ * Ibid. ; Wattleworth v. Pitcher, 2 Price, 189. * Royal Exchange Insurance Co. v. Ward, 1 Fowl. Ex. Pr. 225 ; and see Lord Portarlington v. Graham, 5 Sim. 416 ; Montague v. Hill, 4 Russ. 128. * Hyde v. Forster, 1 Dick. 102 ; and see 12 Sim. 154. Substituted service was allowed on the general agent of the defendant, resident abroad, but where, un- known ; though it did not appear that he was secreted or withdrawn to avoid being served. Somers v. Connolly, 1 Irish Eq. 416. Where a defendant is absent from home, and no person can be found at his place of abode, the subpoena may be served on his clerk or servant, at his store or place of business. Smith v. Parke, 2 Paige, 298 ; Dyett v. N. A. Coal Co. 20 WendeU, 570. 440 OF PROCESS TO COMPEL APPEARANCE. Ill the case of Hobhouse v. Courtney,^ the cases and authorities upon this subject were reviewed. The defendant, who was out of the jurisdiction, had given special authority to a person within the jurisdiction to act as his agent with respect to the property which was the subject of the suit, and the Court ordered service on that person to be good service upon the defendant. An application of a similar kind was made to Sir James "Wi- grara, Y. C, in the case of Webb v. Salmon,^ and refused by him upon the ground that the persons upon whom the substituted ser- vice was sought to be effected were not agents in the matter of the suit when the correspondence with the plaintiff's solicitor com- mencedj and that they refused to accept the agency ; " there was not therefore that appointment of them, as the solicitors or agents of the defendant, which, in the case of Hobhouse v. Courtney, were assumed to be necessary." He also observed that he was not prepared to go beyond that case. In the case of Cooper v. Wood,^ Lord Langdale, 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 commu- nication with the defendant. And in Weymouth v. Lambert,^ the same judge ordered substituted service of a subpoena, in a credi- tor's suit, on one who, acting as the attorney of the executor and general devisee and legatee, resident in India, had obtained admin- istration here, and had entered into receipt of the rents of the real estate. Having now considered the original jurisdiction of the Court to order substituted service in the case of absent defendants, it is de- sirable to state the powers recently conferred by the legislature, for the purpose of extending this jurisdiction. The statutes oper- ate in two ways: — first, by allowing actual service under certain ^ 12 Sim. 140, approved and acted on in IMurray v. Vipart, 1 Ph. 521 ; and see Bankier v. Poole, 3 De G. & Sm. 375 ; Hope v. Hope, 4 De G. Mc. & Gor. 341. * 3 Hare, 251. » 5 Beav. 391. * 3 Beav. 333 ; and see the cases cited in the note to Skegg v. Simpson, 2 De G. & Sm. 457. SERVICE OF THE COPY OF THE BILL. 441 circumstances to be effected out of the jurisdiction,^ secondly, by extending the practice of ordering service within the jurisdiction, upon a person otiier than the defendant, as a substitute for service upon the defendant himself. The provisions of the statutes 2 Will. IV. c. 33, and 4 & 5 Will. IV. c. 82, apply to all suits concerning lands, tenements or hered- itaments situate in England or Wales, or concerning any charge, lien, judgment or incumbrance thereon, or concerning any money vested in any government or other public stock or public shares in public companies or concerns, or the dividends or produce thereof. And the effect of the above-mentioned Acts is, — First, that in such suits, upon special motion, the Court may order and direct that service in any part of Great Britain ^ or Ireland, or in the Isle of Man, shall be deemed good service upon the defendants, on such terms, in such manner, and at such time as to the Court shall seem reasonable. Secondly, in suits of the same description, in case the defendant or defendants shall appear by affidavit to be resident in any speci- fied place out of the United Kingdom of Great Britain and Ire- land, the Court may, upon open motion of any of the complain- ants in any such suit, founded upon an affidavit or affidavits, and such other documents as may be applicable for the purpose of ascertaining the residence of the party, and the particulars mate- rial to identify such party and his residence, and also specifying the means whereby such service may be authenticated, and espe- cially where there are any British officers, civil or military, ap- pointed by or serving under her Majesty, residing at or near such place, order that service of the subpoena upon the party, in man- ner thereby directed, or in case where the Court may deem fit, upon the receiver, steward or other person receiving or remitting the rents of the lands or premises, if any, in the suit mentioned, returnable at such time as the said Court shall direct, shall be deemed good service upon such party. ' In Pratt v. Bank of Windsor, Harring. Ch. 254, it was held, that the service of a subpoena upon a defendant out of the State is irregular. See also Dunn v. Dunn, 4 Paige, 425. In Picquet v. Swan, 5 Mason, 561, the plaintiff obtained an order, appointing 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. '^ The Act extends to Scotland ; Cameron v. Cameron, 2 M. & K. 289. 442 OF PROCESS TO COMPEL APPEARANCE. Thinlly,^ in any of sucli suits, if it it shall be made to appear by affidavit that any defendant cannot by reasonable diligence be per- sonally served with the subpcena to appear and answer, or that upon inquiry at his usual place of abode he cannot be found, so as to be served with such process, and that there is just ground for m believing that such defendant secretes or withdraws himself, so as ^ to avoid being served with the process of such Court, then and in all such cases the Court may order that the service of the sub- poena to appear and answer shall be substituted in such manner as the Court shall think reasonable, and direct by such order. In the first and second of the above-mentioned cases, it is pro- vided 2 that, together with the subpoena or letter missive, served under any such order of the Court, a copy of the prayer of the bill should be served upon the defendant ; and it is further provided, that no process of contempt shall be entered upon any such pro- ceedings, nor any decree made absolute, without special order upon special motion, made for the purpose. As by the recent Act to amend the practice of the Court of Chancery,^ the service of a printed copy of the bill is to be effected in the same manner as the service of a subpcena at the time of the passing of that Act might have been effected, it is presumed that now the above-mentioned Acts apply to the service of a copy of a bill. The provisions of these Acts have been carried out by the Or- ders of May, 1845, the 33rd of which provides, that " where a defendant in any suit is out of the jurisdiction of the Court : " — 1. " 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 the subpoena to appear to and answer the bill may be served on such defendant in such place or country, or within such limits as the Court thinks fit to direct."* 2. " Such order is to limit a time (depending on the place or country within which the subpoena is to be served), after service 1 4 & 5 Will. IV. c. 82, § 2. 2 2 Will. IV. c. 33, § 3. « 15 & 16 Vict. c. 86, § 5. ♦ Blcnkinsopj) v. Blonkinsopp, 2 Phil. 1. The Order applies to a defendant resident abroad, of unsound mind, but not found so by inquisition. Biddulpli v. Lord Camoys, 7 Beav. 580 ; as to the affidavit in support, see Fieske v. Buller, 7 Beav. 581, and 11 Beav. 153. SERVICE OF THE COPY OF THE BILL. 443 of the subpoena, within which such defendant is to appear to tlie bill, and also (if an answer be required) a time within which such defendant is to plead, answer or demur, or obtain from the Court further time to make his defence to the bill." ^ 3. " At the time when such subpoena shall be served, the plain- tiff is also to cause such defendant to be served with a coi)y of tlie bill, and a copy of the order giving the plaintiff leave to serve the subpoena." 4. " And if, upon the expiration of the time for appearing, it appears to the satisfaction of the Court that such defendant was duly served with the subpoena, and with a copy of a bill, and a copy of the order, the Court may, upon the application of the plaintiff, order an appearance to be entered for such defendant." And by the 23rd of these Orders, it is provided, that "subpoenas to appear, or to appear and answer, which are served out of the jurisdiction of the Court, are to be made returnable at such time after the service thereof, as the Court by special order may direct ; and if an answer be required, each such subpoena is to specify the time after service within which the defendant is required to answer." The Orders of May, 1845, provide a form of the subpoena, when it is to be served out of the jurisdiction,^ but as in all cases now a copy of the bill must be served, the subpoena will no longer be required. It may be observed here, that the Acts of Parliament before referred to, conferring upon the Court of Chancery the power of serving process out of the jurisdiction, apply to suits of a particu- lar kind ; and further, that they fetter the exercise of the privilege by certain restrictions : whereas the Orders of 1845 apply to suits of all descriptions, and in some respects dispense with the pro- visions which the legislature had required.^ By tlie 3 & 4 Vict, c. 94, and the 5 Vict. c. 5, s. 29, the Lord Chancellor, with the advice and consent of the Master of the Rolls and the Vice-Chan- cellors, or any two of them, is empowered to make alterations in forms and in the mode of proceeding, but the words of the Act ' It is not necessary to fix a time for demurring alone. Brown v. Stanton, 7 Beav. 582 ; Blenkinsopp v. Blenkinsopp, 8 Beav. 612. * Service of a subpoena abroad ought to be personal. Lloyd v. Trimbleston, 1 Moll. 244 ; Irwin v. Carleton, ib. 245. * Whitmore v. Ryan, 4 Hare, 612. 444 OF PROCESS TO COMPEL APPEARANCE. scarcely seem to extend to an alteration in the power of the Court to issue process out of the jurisdiction. It is presumed, however, that in whatever respect the Orders extend or vary the practice of the Court in issuing process without the jurisdiction, they must derive their validity either from the stat. 3 & 4 Vict. c. 94, or from the inherent power which the Court of Chancery possesses inde- pendent of Statute Law. At any rate the jurisdiction has now been completely established, and there is no doubt that it will apply now to the service of a copy of a bill upon a defendant out of the jurisdiction, in the same manner as it has heretofore applied to the service of a subpoena out of the jurisdiction. In cases where the defendant is not actually out of the juris- diction, but where ordinary service cannot be effected, there are various means in which the Court, in the exercise of its discretion, has by special order permitted different modes of 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 persou 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 ; and when an infant has been taken out of the juris- diction for the express purpose of preventing his being served per- sonally, Lord Langdale, M. R., ordered that service upon the so- licitor and Six Clerk of the parent should be good as against the infant.^ It may here be observed, that the same rule which has been stated, with reference to service of a bill or claim, seems to apply to the service of all writs upon which process of contempt may afterwards be issued, and which require, therefore, what is called personal service. The same strictness is not, however, necessary for the service of notice of ordinary proceedings in the cause. The Orders of October, 1842, point out the manner in which ser- vice of these proceedings is made.^ 1 Sir W. Pulteney v. Shelton, 5 Ves. 147. * Hurd V. Lever, 5 Ves. 147. ' Baker v. Holmes, 1 Dick. 18. * Thompi5on v. Jones, 8 Ves. 141. * Lane v. Ilardwicke, 5 Beav. 222. ' For the service of a summons in proceeding in chambers, see post, Chapter on Proceedings in Chambers. SERVICE OF THE COPY OF THE BILL. 445 We have seen that a solicitor must state his name and place of business and address for service on all pleadings and proceedings.^ By the 18th of the Orders of October, 1842, a party suing or de- fending by a solicitor is not at liberty to change his solicitor in any cause or matter, without 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 shall be considered the solicitor of the party. By the 19th Order, where the party sues or defends by a solici- tor, and no address for service of such solicitor shall have been in- dorsed or added, pursuant to the directions of the 17th Order, all writs, notices, orders, warrants, rules, and other documents, pro- ceedings, and written communications, not requiring personal ser- vice upon the party to be affected thereby, and which have hereto- fore been served upon the sworn clerks or waiting clerks, shall, unless tlie Court shall otherwise direct, be deemed sufficiently served upon the party, if served upon his solicitor, at his place of business ; but if an address for service of such solicitor shall have been indorsed as aforesaid, then all such writs, notices, orders, warrants, rules, and other documents, proceedings, and written communications, shall be deemed sufficiently served upon such party, if left for his solicitor, at such address for service.^ The 20th Order directs that every party suing or defending in person shall cause to be indorsed or written upon every writ which he shall sue out, and upon every information, bill, demurrer, plea, answer, or other pleading or proceeding, and all exceptions which he may leave with the Clerks of Records and Writs to be filed, and upon all instructions which he may give to the Clerks of Records and Writs, for any appearance or other purpose, 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 the said office, where writs, notices, orders, warrants, rules, and other documents, pro- ceedings, and written communications may be left for him. By the 21st Order, where the party sues or defends in person, 1 17th Order, Oct. 1842. ' Service in a supplemental suit upon the solicitor in the original suit has been held good service. Scott v. Wheeler, 13 Beav. 239. VOL. I. 38 446 OF PROCESS TO COMPEL APPEARANCE. and no address for service of such party shall have been indorsed or written, pursuant to the direction of the 20th Order, and in cases where any party has ceased to have a solicitor, all writs, notices, orders, warrants, rules, and other documents, proceedings, and written communications, not requiring personal service upon the party to be affected thereby, and which have heretofore been served upon the sworn clerks or waiting clerks, shall, unless the Court shall otherwise direct, be deemed to be sufficiently served upon the party, if served upon him personally or at his place of residence ; but if an address for service of such party shall have been indorsed or added as aforesaid, then all such writs, notices, orders, warrants, rules, and other documents, proceedings, and written communications, shall be deemed sufficiently served upon such party, if left for him at such address for service* By the 22d Order all writs, notices, orders, warrants, rules, and other documents, proceedings, and other written communications, not requiring personal service upon the party to be affected there- by, and which have heretofore been served upon the clerks in Court or waiting clerks, shall be served before eight o'clock in the evening of the day on which the same shall be served, or other- wise the same shall be deemed to have been served on the next following day, excluding Sundays. And with respect to persons not parties to the cause, the 44th Order of 1828 provides, " That whenever a person who is not a party appears in any proceeding, either before the Court, or before the Master, service upon the solicitor in London, by whom such party appears, whether such solicitor act as principal or agent, shall be deemed good service, except in matters of contempt re- quiring personal service." ^ Section II. Proceeding- lohere no Service of a Copy of the Bill can he effected. In the event of the plaintiff" not being able by any of the means previously mentioned to effect a due service of tlie copy of the ' With respect to the service of a summons, see post, Chapter on Proceedings in the Judges' Chambers. WHERE NO SERVICE OF A COPY CAN BE EFFECTED. 447 bill upon the defendant, the legislature provided for him another line of proceeding, which in some cases he might adopt, to bring his cause to a state in which a decree may be obtained ; this is, by having the bill talcen pro confesso^ without either appearance by, or service of the subpoena upon the defendant. In order that the plaintiff may pursue this course, he must be able to satisfy the Court by affidavit, " 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 be- lieve that he is gone out of the realm, or otherwise absconded, to avoid being served with the process of the Court." And if the affidavit shows the defendant to be beyond the seas, the plaintiff must also prove by affidavit, " that the defendant has been in Eng- land within the two years next before the subpoena issued." Upon motion supported by such affidavits, 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 order shall, within fourteen days after such order made, be inserted in the " London Gazette," and published ^ on some Lord's-day, immedi- ately after Divine service, in the parish church of the parish where such defendant made his usual abode within thirty days next be- fore such his absenting ; and also a copy of such order shall, within the time aforesaid, be posted up at tlie Royal Exchange, in Lon- don ; and if the defendant do not appear within the time limited by such order, or within such further time as the Court shall ap- point, then, on proof made of such publication of such order as aforesaid, the Court being satisfied of the truth thereof, may order the plaintiff's bill to be taken joro confesso? ^ By 7 Will. IV.' & 1 Vict. c. 40, all notices are to be affixed to the church door instead of being published. * In Massachusetts, whenever it shall appear that a defendant resides out of the Commonwealth, the Clerk, on application of the plaintiff, at any time after the filing of the bill, shall enter an order requiring such defendant to appear and answer the plaintiff's bill, if in any of the New England States, or the States of New York, New Jersey, Pennsylvania, Delaware, or Maryland, within one month ; " if within any other of the United States east of the Rocky Mountains, or New Brunswick, Nova Scotia, or Canada, within two months ; if elsewhere in the United States, or in Great Britain, Ireland, or France, within three months ; and if in other foreign parts, within six months, from the date of such order. The order shall state the title of the suit, and shall set forth briefly the substance of the plaintiff's bill. And If it shall appear, by affidavit or otherwise, that a copy of such order has been served on such defendant personally, or that the 448 OF PROCESS TO COMPEL APPEARANCE. The 81st Order of May, 1845, applies to the same circumstances as the provisions of the Act hist stated ; the affidavits which the^ same lias been published three times, in different weeks, in some newspaper published in the county where the suit is pending, the plaintiff may, after the expiration of one month subsequent to the term limited by such order, enter an order to have his bill taken for confessed ; and the matter thereof shall be de- creed accordingly, unless good cause be shown to the contrary." Rule 8, of the Kules for Practice in Chancery. There are, undoubtedly, provisions made in other States for giving notice to non-resident defendants, and taking bills as confessed against them upon their non-appearance. New York, see 1 Barbour Ch. Pr. 92 to 96 ; Jermain v. Lang- don, 8 Paige, 41 ; Evarts v. Beeker, ib., 50G ; Corning v. Baxter, 6 Paige, 178; Connecticut, Central Manuf. Co. v. Hartshorne, 3 Conn. 198. Non-resident infants defendants must have notice given them of the pendency of a suit against them by publication, as in the case of adults. Walker v. Hal- let, 1 Alabama (N. S.), 379 ; Dunning v. Stanton, 9 Porter, 513 ; Coster v. Bank of Georgia, 24 Alabama, 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 appearance, if no one applies in his behalf, the plaintiff may move, as in ordinary cases, for a guardian ad litem. Ontario Bank v. Strong, 2 Paige, 301. Proceedings may also be had under the statute by publication, where the infant is concealed. Mortimer v. Copsey, 1 Hoff. 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 publication, must be strictly pursued. Brown V. Wood, 6 J. J. Marsh. 11, 14; Hunt v. WIckliffe, 2 Peters, 201; LIngan v. Henderson, 1 Bland, 236; Miller v. Hall, 3 Monroe, 242; Tevis v. Richardson, 7 Monroe, 654. Where the statute directs an order of publication to be certified by the printer in whose paper the order has been published, a certificate must be made by the printer or proprietor, and not by a mere editor. Brown v. Wood, 6 J. J. Marsh. 11, 19; Butler v. Cooper, 6 J. J. Marsh. 29, 30; Brodie v. Skelton, 6 Eng. 120; Sprague v. Sprague, 7 J. J. Marsh. 331. A certificate of publication must show when, and In what paper, the order was published. Hopkins v. Claybrook, 5 J. J. Marsh. 234. See Swift v. Stebbins, 4 Stew. & Port. 84. Where an order of publication has not been returned, an entry on the record that It was proved to have been duly executed, is Insufficient evidence of publication to authorize the rendition of a decree. Green v. M'KInney, 6 J. J. Marsh. 193, 197. But see contra, Swift v. Stebbins, 4 Stew. & Port. 447. It Is not suflicient that an order of publication is had in a Chancery cause; proof of the publication must also be made. 'Moore v. Wright, 4 Stew. & Porter, 84. The proceeding by publication on the frround that the defendant does not reside In the State, does not apply to those, such as mariners, who arc temporarly absent in their vocation. M'Kim V. Odom, 3 Bland, 407; Wash v. Heard, 27 Miss. (5 Cush.) 400. Publication of notice, as In the case of a non-resident defendant, Is of no effect whatever, if WHERE NO SERVICE OF A COPY CAN BE EFFECTED. 449 Order requires are very nearly the same as tliose necessary under the Act; but the Order only enables the plaintiff to obtain an ap- pearance to be entered for the defendant, and does not, like the Act, authorize the bill to be taken pro confesso at ojice. The Order, however, dispenses with the necessity of having the notice the defendant in fact be not a non-resident. Snowden v. Snowden, 1 Bland, 550. In Alabama, notice to absent defendants must be published on the court-house door as well as in the newspaper. Batre v. Auze, 5 Ala. 173. So in Virginia. Myrick v. Adams, 4 Munf. 366. So in Mississippi. Zecharie v. Bowers, 3 Smedes & M. 641. In Kentucky, by Act of Feb. 2, 1837, a warning order and traverse were sub- stituted for publication of notice against non-resident defendants. Stump v. Beatty, 8 Dana, 14. A warning order is constructive notice to a non-resident of the pendency of the suit. Chiles v. Boon, 3 B. Monroe, 82. In New Jersey, where any of the defendants reside in the State, and are served with process, it is not necessary, unless under special circumstances, that the order for the appearance of absent defendants should be published in any newspaper out of the State. Foreign publication is required only where all of the defendants reside out of the State. Wetmore v. Dyer, 1 Green Ch. 386. A decree against non-resident defendants upon whom process has not been served, or proof of publication made, is erroneous. Gale v. Clark, 4 Bibb, 415. But a decree regulai'ly made against absent 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'Elvoy, 3 Litt. 269. See Pike v. McBratney, 15 111. 314. In New York, where a defendant is proceeded against as an absentee, he is entitled 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 any, upon payment of such cost as the Court may deem reasonable. Jermain v. Langdon, 8 Paige, 41 ; Evarts v. Beeker, 8 Paige, 506. In such case it is not necessary to vacate the decree in the first instance ; the decree may be permitted to stand until the validity of the defendant's defence is ascertained, and proceedings for this purpose may be had in the same manner as if the decree had been opened or vacated. Jermain v. Langdon, ubi supra. Where a defendant, who has a fixed and notorious domicil within the State, is proceeded against as an absentee, it is irregular, and if he applies the first oppor- tunity 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 appear, and who has not been personally served with process, the report of a Master as to the truth of the allegations contained in the bill is necessary. Corn- ing V. Baxter, 6 Paige, 178. And the reference to a Master as to the rights of an absentee, must be had, although there are other defendants who join and con- test the claim of the plaintiff. Ib. 38* 450 OF PROCESS TO COMPEL APPEARANCE. posted up at the Royal Exchange, and of its publication in the parish church ; it is in the following terms: — " In case it appears to the Court, by sufficient evidence, that any defendant against whom a subpoena to appear to, or to appear to and answer a bill, has issued, has been within the jurisdiction of the Court, at some time, not more than two years before the subpoena was issued, 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 sub- poena was issued he might probably have been met with, he could not be found, so as to be served with process, and that, in either case, there is just ground to believe that such defendant is gone out of the realm,^ or otherwise absconded to avoid being served with process,^ then, and in such case, the Court may order that such defendant do appear at a certain day, to be named in the order ; and a copy of such order, together with a notice thereof, to the effect set forth at the foot of this order, may, within four- teen days after such order made, be inserted in the ' London Ga- zette,' and be otherwise published as the Court directs ; and in case the defendant does not appear within the time limited by such order, or within such further time as the Court appoints, then, on proof made of such publication as aforesaid of the aforesaid order, the Court may order an appearance to be entered for the defend- ant, on the application of the plaintiff." JSfotice. — "^. B., take notice that if you do not appear pursu- ant to the above order, the plaintiff may enter an appearance for you, and the Court may afterwards grant to the plaintiff such re- lief as he may appear to be entitled to on his own showing." We have seen that, by the recent statute, the filing a printed bill has the same effect as the issuing of a subpoena under the old prac- tice. Consequently it may be inferred, that the last-mentioned Statutes and Orders will be still in force, and that this process may be still used where service of a copy of the bill cannot be effected. Such facilities, however, are now given to enable the plaintiff to effect due service upon defendant, that the case must be a very special one in which it is desirable to attempt to proceed without due service having been effected. 1 It is not necessary to show that he has absconded to avoid service ia the particular suit. Barton v. Whitcombe, 16 Beav. 205. 2 Cope V. Russell, 12 Jur. 105. WHEN SERVICE OF THE COPY HAS BEEN EFFECTED. 451 Section III. Of compelling Appearance when Service of the Copy of the Bill has been effected. Having now considered the various means of effecting due ser- vice of the copy of the bill, and also the means which are afforded to the plaintiff in certain cases of proceeding with his cause where service is impossible, the next subject for investigation is in what manner, after the bill has been duly served, the plaintiff can ob- tain an appearance to be entered in the event of the defendant himself not appearing in the time limited by the terms of the writ. By the 16th Order of May, 1845, Article 3, if a defendant be served with the subpoena to appear to, or to appear to and answer a bill, he is to appear thereto within eight days after the service of such subpoena. If he does not, he becomes subject to the fol- lowing liabilities : — 1. An attachment may be issued against him. 2. An appearance may be entered for him on the application of the plaintiff. 3. If the bill prays for an injunction to stay proceedings at Law, the plaintiff may obtain an order for the common injunction, if no injunction has been previously obtained. This last liability has been abolished by the Act for the Amend- ment of the Practice of the Court of Chancery, enacting, that the practice with respect to common injunctions is hereafter to be the same as the practice with respect to special injunctions. It appears, therefore, that if a defendant do not appear within eight days after service, he lias incurred a contempt and may be attached, but the Court has afforded a simple remedy to the plain- tiff; for by the 29th of these Orders "If any defendant, not ap- pearing to be an infant or a person of unsound mind, unable of himself to defend the suit, is, when within the jurisdiction of the Court, duly served with a subpoena ^ to appear to, or to answer a bill, 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 service, ^ It will be recollected that service of a copy of a bill is now by statute equiv- alent in eflfect to service of a subpoena. 452 OF rrvOCESS to compel APrEARANCE. 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 affidavit, that the subpoena was duly served upon such defendant personally, or at his dwelling-house or usual place of abode ; ^ 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 hereby required to enter such appearance, the plaintiff may apply to the Court for leave to enter such appearance for such de- fendant ; and the Court, being satisfied that the subpoena was duly served, and that no appearance has been entered for such defend- ant, may, if it so thinks fit, order the same accordingly." ^ Some doubt arose upon the construction to be put upon this Order, when the subpoena to answer an amended bill under the regular practice had been served upon the solicitor of a defendant out of the jurisdiction. It was finally determined by Lord Truro,^ overruling some previous cases, that under such circumstances an appearance might be entered for the absent defendant under this Order. . Under this Order the plaintiff can within three weeks after ser- vice enter an appearance without application to the Court. If the plaintiff delay entering an appearance beyond the period of three weeks, a special application must be made to the Court, when probably some reason will be demanded for the delay, or notice will be required to be given to the defendant before this entry of the appearance.* If, however, the plaintiff does not choose himself to enter an appearance for the defendant, it is competent for him, though not so usual or perhaps so proper a practice, to proceed to compel him by attachment to appear.^ For this purpose the solicitor of the 1 Or upon a solicitor authorized to act for him. Foster v. Menzies, 16 Beav. 568; see also Cross v. Thomas, 16 Beav. 592, and Steele v. Plomer, 1 Mac. & Gor. 83 ; 2 Phil. 783. " Walker v. Ilurst, 13 Sim. 490; Marquis of Hertford v. Suisse, 13 Sim. 489. ^ » Zulueta V. Vinent, 3 Mac. & G. 246. * Radford v. Roberts, 2 Hare, 96 ; Morgan v. Morgan, 1 Col. 228. ^ Mussina v. Bartlett, 8 Porter, 277. The general mode of compelling obedi- ence to the orders of the Court, is by attachment. Matter of O'Reillys, 2 Hogan, 20. It always rests in the sound discretion of the Court, whether the rule for WHEN SERVICE OF THE COPY HAS BEEN EFFECTED. 453 plaintiff must prepare a writ of attachment, which is in the fol- lowing form : — " Victoria, &c. " To the sheriff of greeting. We command you to at- tach A. j5., so as to have him before us in our Court of Chancery, on ^ , wlieresoevcr the said Court shall then be, there to an- swer to us, as well touching a contempt which he, as it is alleged, has committed against us, as also such other matters as shall be then and there laid to his charge, and further to perform and abide such order as our said Court shall make in this behalf; and hereof fail not, and bring this writ with you. " Witness ourself at Westminster, the day of , in the year of our reign." To the bottom of this writ, on the right hand side, must be put the surname of the Master of the Rolls. By the Standing Order of the Court, all process of contempt must be made out into tlie proper county where the party against whom tlie same issues is resident or dwelling, unless he shall be then in or about London, in which case it may be directed into the county where he shall then be.^ It seems, however, that in ordinary cases a plaintiff may at the same time sue out two or more attachments against the same de- fendant into different counties, but only one of them must be exe- cuted, otherwise the party would be liable to an action ; and where a defendant being in contempt, the attorney sued an attachment into Kent and another into London, and arrested the defendant upon each, upon this being shown to the Court, costs were ordered to be taxed by the Master, for irregularity and vexation ; but in regard tliat the plaintiff was poor, the Court, upon his prayer, or- dered the costs to be paid by the defendant out of a sum of 600/. an attachment shall be absolute, or nisi, though the latter is the usual and safer course. Matter of Vanderbilt, 4 John. Ch. 58. A subpoena returnable on Sunday is irregular, and will not warrant the issuing of an attachment for disobedience thereof, as no Court can be held on that day for any purpose. Gould v. Spencer, 5 Paige, 541. ^ Here must be inserted the day of the return, which may be " immediately after the receipt of this writ," or on one of the old general return days in Term ; as, " on the morrow of All Souls, next ensuing," or " on the day of next ensuing," being some day in vacation, according to the circumstances stated in the next page. * Beames, Ord. 199. 454 OF PROCESS TO COMPEL APPEARANCE. decreed to the plaintiff and resting in Court, and the defendant was set at liberty without entering his appearance with the regis- trar, for the Court said none should take advantage of his own wrong.^ If the defendant resides in the county palatine of Lancaster, the attachment must be directed to the Chancellor of the Duchy, or his deputy, commanding him to issue his mandate to the sheriff to attach the party ; and, to enforce obedience, it is necessary to obtain an order, which is of course, upon the Chancellor to return the writ, and afterwards an order upon the sheriff to return the mandate.^ Where the defendant is in a city or town which is a county in itself, the writ must be directed to the sheriff of city or town. If the defendant resides within the Cinque Ports, the attachment is directed to the Lord Warden thereof accordingly.^ The names of three defendants, but not more, may be inserted in one writ. The writ must be indorsed, " For not appearing at the suit of , plaintiff" ; and it must be further indorsed with the name and address of the solicitor. According to the old practice of the Court, this writ, as well as all other process of contempt, must have been returnable in Term time ; * and it was also requisite, where it was intended to proceed to a sequestration, or to take a bill j»ro confesso, that there should be fifteen days between the teste (or date) and the return of the writ, unless the defendant lived within ten miles of London, when an order might be obtained, by motion or petition of course, to make the several processes returnable immediately.^ In order, however, to save the expense of the order for a writ returnable im- mediately, in a town cause, and also to get rid of the delay in the process occasioned by that proceeding, a clause was introduced into the 1 Will. IV. c. 36, s. 15, rule 3, by which it is provided, " that the party prosecuting any contempt shall be at liberty, with- out order, to sue forth the several ivrits in process of contempt re- turnable immediately, in case the party in contempt resides or is in London, or within twenty miles thereof, and that in other cases the party prosecuting a contempt shall be at liberty, without order, to ^ Prac. Reg. 48. M Turn. & V. 113. * 1 Harr. 122. Trotter v. Trotter, Jac. 533. * Hind. 101. ' Ibid. WHEN SERVICE OF THE COPY HAS BEEN EFFECTED. 455 sue forth such several writs returnable in vacation, provided that there be fifteen days between the teste and the return of each writ."i The effect of this Act is, to extend the power of issuing attach- ments and other process returnable in vacation to all cases, with the restriction, that where the party resides above twenty miles . from London, there shall he Jif teen days between the teste and the return, and to permit such process to be issued without a previoxis 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 gen- eral return day ; thus, when the last of the fifteen days required by the above rule of the 1 Will. IV. c. 36, falls in Term time, the attachment must be made returnable on one of the general return days of the Term occurring after the expiration of the fifteen days. An attachment cannot have a longer return than the last return of the Term following that in which it is tested; if made return- able immediately, it is only in force until such last return of the following Term ; and if executed afterwards, its execution is liable to be discharged for irregularity. When the writ has been so prepared, an affidavit of due service upon the defendant must be made and filed ; ^ and upon the pro- duction of the office copy of such affidavit, if it appears to the Clerk of Records and Writs that the time for the appearance of the defendant has expired, and that no appearance has been en- tered for him, the writ of attachment will be sealed.'^ When the writ has been sealed, it must be entered in the registrar's office, previously to its being executed.^ After the entry, it may be placed in the hands of the under- sheriff of the district to which it issues, for the purpose of being executed. 1 Veal's Record and Writ Clerks, p. 30 ; Wree v. Clayton, 12 Jur. 821. * Bromhead v. Smith, 8 Ves. 357. * 4th Order of October, 1842. A praecipe, in the following form, should be left with the Clerk of Records and Writs : — A. B. ) Seal an attachment directed to the sheriff of , against C. D., for V. > not appearing. Ats. A. B. Plaintiff. Returnable immediately. En- C. D.)tered day of (Name and address of plaintiff's solicitor.) * Smith V. Thompson, 4 Madd. 179. 456 OF PROCESS TO COMPEL APPEARANCE. If the writ is returnable immediately, the return may be called for on the fifth day after the writ was delivered to the under-sherifT.^ In Other cases, the return may be called for on or after the day mentioned 'u\ the writ. In either case, the order for the sheriff to return the attachment is of course. By the Standing Orders of the Court, " Every suitor who prose- cutcth a contempt ought to do his best endeavor to procure each several process to be served and executed upon the party prose- cuted ; and upon his wilful default therein appearing to the Court, such person offending shall pay unto the party grieved good costs, and lose the benefit of the process returned without such en- deavor." 2 It is particularly necessary that this rule should be attended to in cases where it is intended to proceed to take a bill pro confesso against a defendant in contempt for want of an answer ; for by the Orders of May, 1845, it is necessary that the plaintiff should have exerted due diligence to procure the execution of the writ of at- tachment, 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, but under the previous practice, then, for the purpose of obtaining the writ of sequestra- tion immediately upon the return by the sheriff of wo/i est inventus^ an affidavit must be made, that " due diligence was used to ascer- tain where such defendant was at the time of issuing the writ, and ill 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." * The first thing to be done, after the writ has been issued, is to deliver it to the sheriff 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 personal presence are usually executed.^ The sheriff or other officer to whom any writ is direct- ^ Makepeace v. Dillon, Imp. Off. Sheriff, 363. * Beam. Ord. 66, 199. * 77th Order, May, 1845, p. 452. AVhen the defendant is actually known to be out of the jurisdiction, the attachment need not be sealed ; but in other cases an aflidavit of due diligence to execute the attachment must be made. * 9th Order, August, 1841. ' Impey, Off. Sheriff, 14. WHEN SERVICE OF THE COPY HAS BEEN EFFECTED. 457 cd or delivered ought with all speed and secrecy to execute such writ,^ and neither he nor his officers can dispute the authority of the Court out of which it issues, but he or his officers arc at their peril to execute the same according to the command of such writ.^ If the defendant is already in the custody of the sherilf, either upon a criminal sentence or civil process, no further arrest is ne- cessary, but the sheriff must give notice of the attachment to the gaoler in whose custody the defendant is ; and it is to be observed that a defendant in custody upon civil process against whom an attachment has been issued out of Chancery for a contempt, in not appearing or answering, cannot be discharged under an Insolvent Act without an order of the Court of Chancery, and if under such circumstances the sheriff takes upon himself to discharge him he will be liable to commitment.^ Although all writs and processes are directed to the sheriffs of the different counties, yet they never execute the same themselves, but the under-sheriffs usually make their warrants to their bailiffs or officers for the execution of such writs ; * and it is tlie 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.^ By the 6th of Geo. I., no high-sheriff, under-sheriff, their dep- uties or agents, shall make out any warrant before they have in their custody the writs upon which such warrants ought to issue, on forfeiture of 10/. And every warrant to be made out upon any writ out of the Queen's Bench, Common Pleas or Exchequer, before judgment, to arrest any person, shall have the same day and year set down thereon as shall be set down on the writ itself, under forfeiture of 10/., to be paid by the person who shall fill up or deliver out such warrant. By 2 Geo. II. every warrant that shall be made out on any writ, process or execution, shall, before the service or execution thereof,- be subscribed or indorsed with the name of the same attorney, clerk in Court or solicitor, by whom such process, &c., shall be sued forth. But the not subscribing or indorsing the name on any war- 1 Impey, Off. Sheriff, 14. ^ Ibid. 33. ' Kendal v. Baron, cited 2 Dick. 661. ♦ Impey, Off. Sheriff, 59. ^ Ibid. VOL. I. 39 458 OF PROCESS TO COMPEL APPEARANCE rant made on any writ, ). * 16th Order, October, 1842. OF PARTICULAR DEFENDANTS. 467 plaintiff to dispense with personal service, it is necessary to apply to the Court for leave to substitute a service in lieu of it, ground- ing such application upon a proper affidavit of the particular cir- cumstances of the case, upon which the Court will exercise a dis- cretion, and make the order, if the facts stated iu the affidavit are strong enough to warrant such a proceeding.^ The form of the sequestration issued against peers and other privileged persons is nearly tlie 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. The manner of issuing and executing it, and the consequences arising from it, are similar to those of ordinary sequestrations.^ By the statute 1 Will. IV. c. 36, s. 12, it is enacted, that in case any defendant, having privilege of Parliament, shall upon a return of process of sequestration issued against him for not putting in an appearance to any original or otlier bill of complaint instituted against liira in a Court of Equity for enforcing discovery and re- lief, or discovery alone (as the case may be), neglect to appear, that then and in such case such Court, upon producing the return of such sequestration in Court, may, on the motion or other appli- cation of tlie plaintiff in such cause, appoint a clerk in Court to enter an appearance for such defendant so having privilege of Par- liament, and such proceedings may thereupon be had in the cause as if the party had actually appearad. With respect to suits where the defendant is an infant, or person of unsound mind, and where, after due service upon him, no ap- pearance is entered, by the 32d Order of May, 1845, it is provided, " that if upon default made by a defendant in not appearing 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 de- fendant, by whom he may appear to and answer, or may answer the bill and defend the suit.^ But no such order is to be made * Hind. 81. See Thomas v. Lord Jersey, 2 M. & K. 398; and for cases where substituted service has been allowed, see the note to Skegg v. Simpson, 2 De Gex & Sm. 456. ^ See page 4 77, and post, Section on Enforcing the Execution of Decrees. ' It has been usual to order the solicitor to the Suitors Fund to act upon occasions of this kind ; see Thomas v. Thomas, 7 Beav. 47 ; Shepherd v. Harris, 10 Jurist, 24. 468 OF PROCESS TO COMPEL APPEARANCE unless it appears to the Court, on the hearing of such application, that the subpoena to appear to and answer the bill was duly served, and that notice of such application was after the expiration of the time allowed for appearing to or for answering the bill, and at least six days^ before the hearing of the application, served upon or left at the dwelling-house of the person with whom or under whose care such defendant was at the time of serving such subpoe- na, and (in the case of such defendant being an infant not resid- ing with or under the care of his father or guardian) that notice of such application was also 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 application thinks fit to dispense with such last-mentioned service." Since, however, the Chancery Amendment Act, when the plaintiff can proceed without an an- swer from a defendant, the plaintiff may obtain an order, appoint- ing the solicitor to the Suitors Fund to act for an infant, even when no default has been made in answering.^ It must be recollected, that by the 30th Order of May, 1845, any appearance 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 ir- regular and of no validity. With respect to cases where a subpoena has been served upon a defendant out of the jurisdiction, by an order obtained under the 4 * Rogers v. Kirkpatrick, 3 Ves. 573. * Ante, p. 477. » Davis V. Hammond, 5 Sim. 9. * See ante, p. 477. PROCESS AGAINST UNPRIVILEGED DEFENDANTS, ETC. 479 According to the practice before the Orders of August, 1841, the Serjeant-at-arms was the only officer upon whose return such pro- cess could be issued.i It has not been the practice to issue seques- trations where the defendant was in custody for contempt upon mesne process, because the stat. 1 Will. IV. c. 36, enables the plaintiff to obtain the effect of that process, either by entering an appearance for him under sect. 11, or by taking the bill pro confes- so against him, under the 15th section of that Act. According to the old practice of the Court, an order to have the bill taken pro confesso was of course upon the issuing of the writ of sequestration, even though it was not executed. In consequence of this rule, it was not the ordinary practice to execute writs of sequestration upon mesne process.^ It appears that a plaintiff, upon obtaining a sequestration against a defendant for want of an answer, had an option whether he would proceed to take the bill pro confesso, or to compel answer : if the circumstances of the case were such that justice would be obtained by taking the bill pro confesso, he ought not to cause the sequestration to be executed ; but if his case was such that an an- swer from the defendant was necessary, he might.^ Still further to facilitate the proceedings of the plaintiff, should the defendant not be arrested upon the attachment, the 77th and 78th Orders of May, 1845, have provided in precise terms for the case of a defendant absconding or refusing to obey the process of the Court ; and gives to the plaintiff the means of having the bill taken pro confesso, with respect to such a defendant, when he has appeared in person or by his solicitor.* The 79th Order relates to cases where the defendant has had an appearance entered for him, and provides a course of proceeding * See 9th Order, Aug. 1841. See Hook v. Ross, 1 Hen. & M. 319, 320. * For authorities on this subject, see Heather v. Waterman, 1 Dick. 335 ; Vaughan v. WiUiams, 1 Dick. 354; Rowley v. Ridley, 2 Dick. 622; Simmonds V. Lord Kinnaird, 4 Ves. 735, 739, and n. (&) ; 3 Swanst. 306. * Except in the case of a bill of discovery, an attachment ought not to be issued, but will be set aside, as the object of the suit may be fully obtained by taking the bill pro confesso. O'Brien v. Manders, 2 Irish Eq. 39 ; Wilson v. Shawe, Craw. & Dix. 62. * The case of Harrison v. Stewardson, 2 Hare, 533, affords a guide to the proof which will be required in proceedings under this Order, as that part of the Order of April, 1842 (now discharged), under which it occurred, was similar to the 77th Order of May, 1845. 480 OF PROCESS IN DEFAULT OF ANSWER. under wliich, in such circumstances, the bill may be taken pro confesso} Tiie 80th Order provides for the case of a defendant being in custody for want of his answer, and submitting to have the bill taken pro confesso. Before concluding this section attention must again be directed to the course by which a plaintiff may deliver interrogatories to a defendant who has not appeared. By the 18th Order of August, 1852, it is directed, that " if any defendant to a suit commenced by bill do not appear in person or by his solicitor, within the time allowed for that purpose by the rules of the Court, and the plain- tiff has filed interrogatories for his examination, the plaintiff may deliver a copy of such interrogatories, so examined and marked as aforesaid, to the defendant at any time after the time allowed to such defendant to appear, and before his appearance in person, or by his own solicitor ; or the plaintiff may deliver a copy of such interrogatories, so examined and marked as aforesaid, to the de- fendant or his solicitor, after the appearance of such defendant in person or by his own solicitor, but within eight days after such ap- pearance.'' As this Order relates to a case where the defendant has not ap- peared, and consequently has not any solicitor recognized by the Court, personal service will be requisite, unless the Court make any different order.^ Section II. Process against particular Defendants. The course which has been stated is applicable to the case of an ordinary defendant, not possessed of any particular privilege, and not subject to any disability : it remains to consider the practice to be adopted for the purpose of compelling an answer from de- fendants of particular descriptions. .' See ante, pp. 450, 467. ' For the manner of effecting personal service and substituted service, see ante, pp. 434, 435. But it appears that strict personal service of interrogatories on a defendant who has not appeared is not absolutely necessary. The same service as of a copy of a bill with a servant at the dwelling-house is sufficient. PROCESS AGAINST PARTICULAR DEFENDANTS. 481 First, if the defendant be privileged from arrest, either as a member of Parliament, or by right of peerage, and the l)ill is for relief, as soon as the time for answering 1ms expired, tlie plaintiff, instead of issning an attachment, may move of conrsc for a seques- tration nisi, taking care to serve the order personally upon the de- fendant. Eight days after such service the plaintiff may move to make the sequestration absolute upon proof by affidavit of service of the order nisi, and by certificate that no answer has been filed.^ Upon the order for the sequestration being made absolute, the plaintiff is entitled, by the old practice of the Court,^ to liave the bill taken pro confesso as in the case of unprivileged parties against whom sequestration has issued.^ If the bill be for discovery,* it is not necessary for the plaintiff to obtain a sequestration, but when the time for answering expires he may apply at once to have the bill taken pro confesso,^ and thereupon the Court is empowered to make an order nisi that the bill be so taken pro confesso,^ which order it is presumed will be confirmed in like manner as an order for a sequestration is made absolute. And when such order has been pronounced, the bill, or an examined copy thereof, shall be taken and read in any Court of Law or Equity in evidence of the same facts on behalf of the same parties as could an answer admitting the contents of the bill.7 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 that as against him the bill may be taken pro confesso.^ In the case of a corporation aggregate not answering within the time limited, the plaintiff may issue the same writs successively, and in the same manner as before stated, to compel appearance;* and should the corporation stand out process till the order for se- * See Matter of Vanderbilt, 4 John. Ch. 58. * Jones V. Davis, 17 Yes. 368; Logan v. Grant, 1 Mad. 626. ' See ante, pp. 478, 479. * Jones V. Davis, 17 Ves. 368. " See O'Brien v. Manders, 2 Irish Eq. 39 ; Wilson v. Shawe, Craw. & Dix, 62 ; Stafford V. Bunn, 4 Paige, 360. * 1 Will, IV. c. 36, § 13. ' 1 Will. IV. c. 36, § 14. * Groom u. The Attorney-General, 9 Sim. 325. » See ante, p. 467 ; McKim v. Odom, 3 Bland, 407, 426. VOL. 1. 41 482 OF PROCESS IN DEFAULT OF ANSWER. questratioii issues, then the plaintift' upon the issuing of the writ is entitled to an order to have tlie bill taken pro confesso, in like manner as in other instances where sequestration has been or- dered.^ Upon default by an infant defendant, the Court, according to the provisions of the 32d Order of May, 1845, will upon motion of the plaintiir order a solicitor to be assigned as guardian, by whom the inftmt may answer the bill and defend the suit. This motion must be supported by the same affidavit as in the case of default in appearance.^ And even when the infant is a married woman, a guardian must be appointed to put in an answer on her behalf.^ In o-eneral when a husband and wife are made defendants to a cause, and no special order has been made with respect to the plaintiff's right to demand an answer, or affecting 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 appearance, and in default of such joint answer being put in, the husband alone incurs all the ordinary consequences of contempt.^ Their respective rights and liabilities are however often varied upon the application, either of the plaintiff or of one or other of the defendants. Thus when the husband is abroad, and the suit relates to the separate property of the wife, or to matters arising out of her claims, the plaintiff may upon affidavit to that effect, and with no- tice to the wife herself, move that she may answer apart from her husband.^ * Angell and Ames, Corp. § 667 et seq. * In the case of Bentley v. Robinson. 9 Tlare, App. Ixxvi., the solicitor of the Suitors' Fund was appointed guardian ri'l litem to an infant defendant who was not in default on the motion of the plaintiff. Where the infant has already ap- peared by a guardian ad Utevi, the guardian may be proceeded against in the same manner as other j)ersons, to compel an answer. 1 Iloff. Ch. Pr. >182. ' Colman v. Northcoate, 2 Hare, 14 7. * Gee V. Cottle, 3 M. & C. 180. The plaintiff may stipulate to receive the joint answer sworn to by tiie husband alone. Lcavitt v. Cruger, 1 Paige, 422. » Lethley v. Taylor, !) Sun. 2.")2. If tlie wife be ab.sent, the husbmd may ob- tain time to issue a commission to ol)tain the wife's oath to the answer; and if she refuse to answer, the bill may be taken />/v> ronfexso against her. Leavitt v. Cru- ger, 1 Paige, 422 ; Ferguson v. Smiili, 1 d..lin. Ch. 139. But in New Jersey, if the husband be served, and the wif.- !..• out of the State, it is necessary to have an order of publication against her, unli-ss the husbaod appear for her. Halst. Dig. 170 - 174 ; Chancery Rule 6, § 2. PROCESS AGAINST PARTICULAR DEFENDANTS. 483 Similar orders have been obtained in suits where the wife de- fended in the character of executrix,^ altliougli it may be doubted whether in such cases the plaiutifT can proceed against the wife alone in the absence of her husband.^ It must be recollected, however, that the separate answer of a married woman cannot in any case 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 it is from the date of the order, allowing her to answer separately, that she is entitled to compute the full time for answering without regard to any orders for time previously granted to her husband ;* and it fol- lows, therefore, that no attachment can issue against a married woman, until not only an order for her to answer is made, but un- til the time for answering, reckoning from the date of such order, has expired.^ When a husband 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 using menaces to constrain her consent to an answer contrary to her be- lief. For such conduct a husband is punishable as for a contempt,^ and the wife thus conscientiously dissenting, may, upon applica- tion to the Court, obtain an order to answer separately. If, how- ever, the wife has herself obtained this order, the plaintiff may proceed to compel 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.^ Where the husband is positively unable to conform to the ordi- nary practice of putting in a joint answer, an order will be granted upon his application for him to answer separately, and he is then » Bushell V. Bushell, 1 S. & S. 164 ; Bunyan v. Mortimer, 6 Mad. 278 ; Nayler V. Byland, 9 Sim. 253. « Pannell v. Taylor, 1 T. & R. 103. * Garey v. Whittingham, 1 S. & S. 163. * Jackson v. Haworth, 1 S, & S. 159 ; Bunyan r. Mortimer, 6 Mad. 278. And thus the motion for the attachment must be made on notice, and not ex parte. Graham v. Fitch, 2 De Gex & Sm. 246. See, however, Taylor v. Taylor, 12 Beav. 271. ' See Kipp v. Hanna, 2 Bland, 26. * Ex parte Halsam, 2 Atk. 50. ' Dubois V. Hole, 2 Ver. 613 ; Otway v. Wing, 12 Sim. 90 ; Travers v. Buck- ley, 1 Ves. 386 ; Kipp v. Hanna, 2 Bland, 26. 484 OF PROCESS IN DEFAULT OF ANSWER. exonerated from all liability for his wife's default;^ but the mo- tion for this purpose should be made before he is in contempt, as the Court will not, after he has made deiault, give him an indul- gence to the prejudice of the plaintiff's interests.^ To support such an aj)plication there must be the husband's affidavit, showing that his wife lives apart, and that he has no influence over her, or otherwise proving inability to answer for her.^ Notice of the motion should be given to the plaintiff, and also to the wife. It seems, too, that tiie order ought to direct the wife to answer separately as well as the husband, otherwise the plaintiff may have to apply again before he can bring the former before the Court. ' In all cases where the husband wishes to answer separately, an order to that effect ought regularly to be obtained for that purpose before his answer is put in ; there are, however, cases where he has answered separately without order, and then applied to the Court that he might not be liable to process, on account of his wife's default in answering ; and the application being made be- fore any notice of the irregularity in filing the answer, the Court has made the order.* But such a course is irregular, and upon motion of the plaintiff, the separate answer of the husband would be ordered to be taken off the file.^ If the impossibility of obtaining a joint answer arise not from the refusal of the wife, but from the lunacy of the husband, an order for the wife to answer separately will be made upon a like application of the plaintiff.*' In such a case, however, as well as in other cases where it appears to the Court that the defendant is a person of weak or unsound mind, not found such by inquisition, the Court may, upon the application of the plaintiff, appoint one of the solicitors of the Court guardian of the defendant, by whom he may appear to and answer the bill.'^ ' See Leavitt v. Cruger, 1 Paige, 422. * Gee V. Cottle, 3 M. & C. 180. It appears that the practice authorized by this case of Gee v. Cottle, before Lord Cottenham, is not acted on. When a husband cannot put in a joint answer with his wife, he must obtain an order for her to answer separately. This onler must be obtained upon notice served upon the wife and the plaintiff's solicitor. ' Barry v. Cave, 3 Mad. 472. * Barry v. Cave, 3 Mad. 472 ; Paris v. A'Court, 1 Dick. 13. ^ Gee V. Cottle, 3 M. & C. 180. * Estcourt V. Ewington, 9 Sim. 252. ' 32d Order, 1845. A female defendant, unmarried, above sixty years of age, PROCESS AGAINST PARTICULAR DEFENDANTS. 485 It now remains to be considered in what manner the Orders of the Court, and the Rules of the stat. 1 Will. IV. c. 36, provide for a defendant really unable from poverty to put in an answer, and prevent a party under such circumstances being uselessly de- tained in custody. For this purpose the 75tli Order of May, 1845, directs, that if a defendant upon being brought up in custody for want of his an- swer shall make oath in Court that he is unable, by reason of pov- erty, to employ a solicitor to put in his answer, the Court is there- upon to refer it to the Master to inquire into the truth of that alle- gation, and to report thereon to the Court forthwith, and the Court may appoint a solicitor to conduct such inquiry on the behalf of such defendant ; and if the Master reports such defendant to be unable by reason of poverty to employ a solicitor to put in his an- swer, the Court may assign a solicitor and counsel for such defend- ant, to enable him to put in his answer. By the 8th rule of the Act, the Master to whom the case of any prisoner is referred is empowered to examine the prisoner, and all other persons whom he may think proper to examine, upon oath ; and he may also cause any officer, clerks, or ministers of any Courts of Law or Equity to produce before him, upon oath, any records, orders, books, papers or other writings belonging to the Courts. It need scarcely be remarked, that the office of Master has been abolished by the 15 & 16 Vict. c. 80, and that the powers and du- ties of the Master have been by the same Act transferred to the judges of the Courts, who are enabled, by the 29th section, to di- rect what matters shall be heard and investigated by their chief clerks. The 75tli Order of May, 1845, is nearly in the same terms as the 6th rule of the Act, but it clears away a difficulty which oc- curred under the Act, in proceeding before the Master where the defendant was either unable or refused to bring in any statement concerning his poverty, in such a case it was determined that the Master ought not to proceed ex parte ; and in one case,^ it was or- ■who had been deaf and dumb from her infancy, was admitted to appear and de- fend by guardian. Markle v. Markle, 4 John. Ch. 168. Where a lunatic has appeared by committee, the practice to compel an answer by the committee is the same as in case of other persons. 1 Iloff. Ch. Pr. 182. ^ Atkinson v. Flint, 5 Sim. 77 ; Williams v. Parkinson, 5 Sim. 74. 41* 486 OF PROCESS IN DEFAULT OF ANSWER. dered that the Warden of the Fleet should produce the defendant before the Master, at such time and place as he should appoint, and that the inquiry should be proceeded with in his presence. The Order, however, now provides, tiiat the Court may appoint a solicitor to conduct the inquiry before the Master. The new Order, moreover, applies to all cases where the defendant is brought up in custody, whereas the language of the Act leads to the inference, that it applied only when the defendant was brought up by habeas corpus. The Act, having, by the preceding rules, obliged a plaintiff to brino- a defendant to the bar within a certain period after his ar- rest, and provided against the defendant being detained in cus- tody, where the only reason for his non-compliance with the rules of the Court is his poverty, by furnishing him with the means of putting in his answer, and of defraying the costs of his contempt, o-oes on to prevent the possibility of any prisoner being suffered in future to remain in neglected imprisonment by directing, in the 7th rule, that on the 30th days of the months of January, April, July and October, in every year (or if any of those days should happen on a Sunday, then on the following day), one of the Mas- ters of the Court of Chancery, to be named by the Court, shall visit the prison, and examine the prisoners confined there for con- tempt, and shall report his opinion on their respective cases to the Court; and that thereupon it shall be lawful for the Court to order, if it shall see fit, that the costs of the contempt of any such prisoner shall be paid out of the interest and dividends arising from the several Government or Parliamentary securities, standing in the name of the Accountant-General of the said Court of Chan- cery, to the account intituled " Account of the Moneys placed out for the Benefit and better Security of the Suitors of the High Court of Chancery," and " Account of Securities purchased with Surplus Interest arising from Securities, carried to an Account of Moneys placed out for the Benefit and better Security of the Suit- ors of the High Court of Chancery," or out of any cash standing to either of such accounts, or to any other account which is now or hereafter may be standing to the credit of the suitors of the said Court of Chancery (after and subject to the payment of all charges which by any Act heretofore passed are directed to be paid thereout), and to assign a solicitor and counsel to such prisoner, for putting in his answer and defending him in formd pauperis, PROCESS AGAINST PARTICULAR DEFENDANTS. 487 and to direct any such prisoner, having previously done such acts as the Court shall direct, to be discharged out of custody ; pro- vided that if any such defendant become entitled to any funds out of such cause, the same shall be applied, under the direction of the said Court, in the first instance to the reimbursement of the Suitors' Fund. It is to be observed, that applications to the Court under this rule must be made tp the Lord Chancellor. It is also to be observed, that the 7th rule is entirely framed for the relief of defendants, and that the Lord Chancellor has no au- thority to make an order under that rule on the application of the plaintiff. The course is, that the Master shall visit and make his report, and the Court is then authorized to direct payment of the costs of the contempt out of the Suitors' Fund, and on the con- tempt being cleared, the defendant is entitled to apply for his dis- charge.^ The provisions of the 8th rule, as to the examination of the prisoner and other persons upon oath, and the production of rec- ords, orders, books, papers and writings belonging to any other Court, applies as well to cases where the Master shall visit the Fleet, under the last-mentioned rule, as to those which are spe- cially referred to him. And, by the 9th rule, it is provided, that when it shall appear to the satisfaction of the Court that any pris- oner is an idiot, lunatic or of unsound mind, the Court shall ap- point a guardian to put in his answer and discharge the defendant, providing for the costs in any of the ways pointed out by the Act as shall seem just ; and that if the Court shall see fit, the defence may be made in forma pauperis. The above rules provide against 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 answer in the ordinary way. But it frequently happens that a defendant is obstinate, and refuses either to appear or to put in his answer, although he has not the excuse of poverty or want of in- tellect to justify his refusal. In such cases the Act furnislies the plaintiff with the means of obtaining justice, by authorizing him to enter an appearance for the defendant, or to put in an answer for him, or by proceeding to take the bill pro confesso against him. 1 Watkin v. Parker, 1 M. & C. 370 ; Garrod v. Holden, 4 Beav. 245. 488 OF PROCESS IN DEFAULT OF ANS^VER. The mode in which these objects arc to be accomplished under the Act will be pointed out in the next Chapter. Section III. Of the Effect of a Contempt upon the Proceedings in the Cause. Besides the personal and pecuniary inconvenience to which a party subjects himself by a contempt of the ordinary process 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 has cleared his contempt, and paid the costs." ^ Thus, in Lord Wen- man V. Osbaldiston,^ where a defendant, being in contempt for not putting in his examination pursuant to an order, in order' to avoid a sequestration, 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 Court de- clined making any order upon the motion, but directed the appel- ' 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 contempt. Johnson v. Pinney, 1 Paige, 466 ; Rogers v. Paterson, 4 Paige, 450 ; EHingwood V. Stevenson, 4 Sandf Ch. 366. He will not be allowed to contradict the allega- tions in the bill, or bring forward any defence, or allege any new fact. Mussina V. Bartlett, 8 Porter, 277. Nor is he allowed to appear and contest the plaintiff's demand, before the clerk and Master, to whom the bill may be referred to take an account ; but the inhibition can at any time be removed by filing a full and complete answer. Mussina r. Bartlett, 8 Porter, 277. See Rutherford v. Met- calf, 5 Hayw. 58. A defendant, against whom there is prima facie evidence of bein"- guilty of a breach of an injunction, cannot he heard upon a motion to dis- charge a ne exeat against him in the same cause, until he has purged himself of the contempt. Evans v. Van Hall, 1 Clarke, 223. A party in contempt may move by counsel to set aside the order against him ; for every other purpose he must appear in vinculis. Odell v. Hart, 1 Moll. 492. See Lane v. EUzcy, 4 Hen. & M. 504. « Gilb. For. Rom. 102. See ace. Yowles v. Young, 9 Ves. 173; Oldfield v. Cobbett, 1 Phill. 617 ; Bristowc v. Needham, 2 Phill. 190. 8 2 Bro. P. C. 276 ; 2 Eq. C. Ab. 222, p. 1. EFFECT OF A CONTEMPT, ETC. 489 lant to clear his contempt, and then move. And tliis determina- tion of the Court was affirmed by the House of Lords upon appeal. In like manner it has been held, tliat a mortgagee, defendant to a bill of foreclosure, who is in contempt, cannot move, under the 7 Geo. III. c. 20, for a reference to the Master to take an account of the principal, interest, &c., due upon the mortgage.^ It is to be observed, however, that the rule, that a party cannot move till he has cleared his contempt, is confined to proceedings in the same cause, and that a party in contempt for non-obedience to an order in one cause will not be thereby prevented from mak- ing an application to the Court in another cause relating to a dis- tinct matter, although the parties to such other cause may be the same ; 2 and to such an extent has this privilege been carried, as to allow a defendant to move in a cause in which he was not in con- tempt, to stay proceedings in a cause in which he was in contempt.^ And although it is the general rule of the Court that parties must clear their contempt before they can be heard, yet the rule must not be understood as preventing their making application to the Court to discharge the order, by their non-obedience to which their contempt has been incurred, on the ground of irregularity. Therefore, where a defendant in custody for a contempt in not obeying an order to pay in money applied to the Court to dis- charge him out of custody, on the ground of irregularity in the order (it having been made pending an abatement of the suit), he was not only heard, but the order for his discharge was made, though, under the circumstances, without costs.* In such cases, it is to be observed, that in making his application, the party in contempt ought to confine his motion to the object of getting rid of* the order of which he complains, and that if he embraces other matters in his notice, he will not be allowed to go into such other ^ Hewitt V. M'Cartnev, 13 Ves. 560 ; and see Ellis v. Walmsley, Law J. 1835, p. 60. " Clarke v. Dew, 1 R. & M. 103. ' Turner v. Dorgan, 12 Sim. 504; Morrison v. Morrison, 4 Hare, 530. The contempt of the defendant to the first process of the Court is not a contempt to the decree, and forms no objection to his pleading to a scire facias brought to review that decree. Lane v. EUzey, 4 Hen. & M. 504. * Wilson V. Metcalfe, MSS. In matters of contempt, exceptions may be taken on the question of jurisdiction, where it is distinctly raised and adjudicated upon as matter of law. Androscoggin and Kennebec. R. R. Co. v. Androscoggin R. R. Co. 49 Maine, 392. 490 OF PROCESS IN DEFAULT OF ANSWER. matters till he has shown that the order upon which his contempt has been incurred was irregular. Upon this principle, as the de- fendant in the above case, in his aj^plication to the Court to dis- charge the order upon which his contempt was incurred, included in his notice of motion the discharge of several subsequent orders upon which he liad likewise incurred further contempts, Lord Cottenham was of opinion that he ought, in the first instance, to be confined to that part of his notice of motion which asked the discharge of the order upon which his first contempt was incurred, and upon his failure in inducing the Court to dischage that order, his Lordship refused to hear the residue of the motion.^ 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 application which the other side may make, upon notice duly served upon him.^ So, also, where there is any alleged irreg- ularity in the prosecution of the decree or order obtained under the contempt, a party in contempt may be heard to obtain redress.^ Although a defendant not doing any act 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 enforcing obedience to the orders of the Court has been sealed.* The writ of attachment with proclamations has in all cases been abolished ; ^ but it does not appear that there is anything to affect the old practice with respect to the common writ of attachment, and consequently, it may be presumed, that after an attachment issued, a defendant may plead, answer or demur, not demurring alone upon tender of the payment of the costs of his contempt.^ It seems that a party in contempt can apply for the purpose of removing scandal from the records of the Court.^ It was decided » Wilson V. Bates, 3 M. & C. 201. * Parker v. Dawson, Law J. 1836, p. 108 ; Reeve v. Hodson, 10 Hare, App. 41. » King V. Bryant, 3 M. & C. 191. * East India Company v. Henchman, 3 Bro. Cha. Ca. 372; Sowerby v. War- der, 2 Cox, 268; Curzon v. De la Zouch, 1 Sw. 185. * 6th Order, August, 1841. ' As to whether an order for time to answer confers on the defendant a right to plead, see the cases of Kay v. Marshall, 1 Keen, 196, and Brooks v. Purton, 1 Y. & C. 278. ' Anon, 5 Ves. 656 ; Everett v. Prythergh, 12 Sim. 363 ; Ayck. Ch. Pr. (Lond. ed. 1844) 197, 198 ; 1 Smith Ch. Pr. (2d Am. ed.) 569, 570 ; Howard v. Newman, 1 Moll. 221. now CONTEMPTS CLEARED, WAIVED OR DISCHARGED. 491 by Lord Cotteiiliam, in Wilson v. Bates,^ that a plaintiff in con- tempt is not precluded from availing himself of the ordinary pro- cess to enforce an answer, although it appears that tlie fact of his being in contempt may be made the ground of a special applica- tion by tlie 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 applications may be made with immediate reference to the motion upon which he is so privileged to be heard, or for the pur- pose of obtaining evidence in support of it.^ Section IV. In what Manner Contempts in Process may he cleared, waived or discharg-ed.^ An ordinary contempt in process, as it is a matter merely be- tween the parties, 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 issued against a defendant, but has not been executed, the defendant should enter his appearance or do the act required, and pay or tender to the plaintiff's solicitor the costs of the contempt, if the amount of such costs can be liquidated, as in the case of an attachment. If tlie amount of the costs cannot be ascertained, he should tender such a sum as will cover their prob- able amount.* If the plaintiff's solicitor accept the costs so tendered, it will be at the plaintiff's own risk if he afterwards put the process into ex- ecution. If the solicitor refuse to accept the costs when tendered, it is necessary, in order that the defendant may be discharged from his contempt, that he should obtain an order for that pur- pose, otherwise the contempt will continue. An order of this 1 3 M. & C. 204 ; see also Bickford v. Skewes, 10 Sim. 193. * Cattell V. Simons, 5 Beav. 316, 396. ' See Lowe v. Blake, 3 Desaus. 269 ; Snellinnr v. Watrous, 2 l?a.\ 10 Sim. 564. ' Simmons v. Wood, 5 Beav. 390. See, however, Towne v. Bonnin, 1 De G. & Sm. 128. PRELIMINARY ORDER. 499 CHAPTER IX. OF TAKING BILLS PRO CONFESSO. SECTfON I. — Preliminary Order. In the preceding Chapters the reader's attention has been drawn to the method which the Court adopts to compel a refractory de- fendant to put in an appearance or file an answer. By means of the process there pointed out the plaintiff may, if the defendant be not a privileged person, take his body as a security for his obe- dience, or if he be a privileged person, or manages to keep out of the way so successfully as to avoid an arrest, he may proceed to com- pel his submission by taking from him the enjoyment of his proper- ty and effects till he complies with the requisitions of the writ. Formerly, where the nature of the relief to be granted fre- quently depended upon the discovery to be elicited from a defend- ant by his answer, the mere taking a party into custody or seques- trating his property could not answer the object of doing that justice to the plaintiff which it is the business of Equity to secure. The Court, therefore, adopted a method of rendering its process effectual, by treating the defendant's contumacy as an admission of the plaintiff's case. In cases, therefore, where the whole line of process had been ineffectually employed against the defendant, it made an order that the facts of the bill should be considered as true, and decreed against the defendant according to the Equity arising upon the case stated by the plaintiff. This proceeding is termed taking a bill j^fo confesso} This practice is still in force, and may occasionally be resorted to ; ^ but it must be recollected * A rule for an answer where process has not been rightly served, and a decree pro cojifesso, for want of an answer, are irregular. Treadwell v. Cleaveland, 3 McLean, 283. * In New Hampshire, if the defendant having received due notice, shall neg- lect to enter his appearance at the return term, or shall neglect to deliver to the plaintiff's solicitor his plea, answer or demurrer, within two calendar months after service of the bill, the bill may be taken pro confesso, and a decree entered ac- cordingly. Rule 16 of Chancery Practice, 38 N. Hamp. 608. Rule 18 of the Equity Rules of the U. States Courts, provides for the entry of an order that a bill be taken pro confesso on failure of the defendant to file his plea, demurrer or answer to the bill, in the Clerk's office, on the rule-day next succeeding that of entering his appearance. 500 OF TAKING BILLS PRO CONFESSO. that the plaintiff may now go on with his case without an answer from the defendant, and though he certainly cannot get a discov- ery from the defendant without enforcing an answer, yet the alter- ations in the rules of evidence enaldc a plaintiff to prove his case himself. Hence, the practice of taking bills pro confesso will now very rarely be sanctioned by the Court. The practice is not of very ancient standing, and the custom formerly was, to put the plaintiff to make proof of the substance of his bill.^ This practice has been very materially extended and facilitated by Acts of Parliament and Orders of the Court. It is necessary, in all cases in which a decree is intended to be made against a defendant by taking the plaintiff's bill pro confesso^ that, previously to the hearing of the cause, an order should be obtained for that purpose, and then that the cause should be regu- larly set down to be heard.^ By the 81st Order of May, 1845, " no cause in which an order is made that a bill be taken pro confesso against a defendant is to be heard on the same day on which the order is made, but the cause is to be set down to be heard, and the Court, if it so thinks fit, may appoint a special day for the hearing thereof.^ As in all cases it is now necessary, in proceeding to have the bill taken pro confesso, first to obtain an order upon motion for that purpose, it will be convenient shortly to recapitulate the prelimi- nai'ies necessary in the several cases for the purpose of obtaining this order.* ^ Hawkins v. Crook, 2 P. Wms. ; Johnson v. Desminere, 1 Vern. 223 ; Gibson V. Scevengton, 1 Vern. 247. See Rose v. Woodruff', 4 John. Ch. 547, 548; post, 506, note; Pierson v. David, 4 Iowa, 410; Johnson v. Donnell, 15 III. 97; Cor- radine v. O'Conner, 21 Alabama, 573; Attorney-General v. Carver, 12 Ired. (N. C.) 231. The defendant may in such case, without demurring, take advan- tage of any matter which would be a good cause of demurrer. Wilson v. Water- man, 6 Rich. Eq. (S. C.) 255. * See Pendleton v. Evans, 4 Wash. C. C. 335 ; Rose v. AVoodruff", 4 John. Ch. 547. An order to take a bill pro confesso, unless the defendant answers it by a day f^iven, cannot be anticipated, and a decree pro confesso passed in anticipation of such day. Fitzhugh v. McPherson, 9 Gill & John. 52. * For a more full explanation of the course of proceedings, see Brown v. Home 8 Beav. 667. In Drunimond v. Ponder, Craw. & Dix, 624, it was held, that in causes where there is but one defendant, the bill cannot on motion be taken pro confesso, but must be set down to be heard. * 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. PRELIMINARY ORDER. 501 In the first place, where the defendant is beyond seas, or ab- sconded to avoid being served, and it is intended to proceed to have the bill taken pro confesso without any appearance liaving been entered by him, or on his behalf, under the stat. 1 Will. IV. c. 36, s. 3,^ the section first points out tiie affidavit upon which an order may be obtained, directing and appointing the defendant to appear at a certain time ; it then proceeds to enact the several steps that have to be taken by the plaintiff for publishing this order in the " London Gazette," in the parish church of the defendant, and at the Royal Exchange, and it then provides that upon proof made of such publication of such order as aforesaid, the Court, being satisfied of the truth thereof, may order the plaintiff's bill to be taken pro confesso, and make such decree thereupon as shall be thought just.^ The decisions in the note are upon the 5 Geo. II. c. 25, which is repealed, but as the clauses upon which they were made are re- enacted by the 1 Will. IV. c. 36, they are still important.^ The method to be pursued in taking a bill pro confesso against a defendant absconding and going beyond seas, under this Act, is detailed in the case of Baker v. Keen,^ and was as follows : — The bill was filed on the 29th of October, 1832 ; on the 24th of Janu- ary, 1833, the plaintiff's counsel obtained an order on motion (supported by affidavit that the defendant had absconded and gone beyond the seas), that the defendant should appear to the bill on or before the 1st of March then next. On the 17th of March, 1833, it appearing, by production of the London Gazette, tliat a As to what service of the subpoena is necessary before a bill can be taken as con- fessed, see Sawyer v. Sawyer, 3 Paige, 263; Sullivant v. Weaver, 10 Ohio, 275; Treadwell v. Cleaveland, 3 McLean, 283. ^ See ante, p. 447. * Rule 8, of the Rules for Practice in Chancery in Massachusetts, provides for notice to defendants in Equity suits, who reside out of the Commonwealth, and the method to be pursued to entitle the plaintiff in such cases to obtain an order to have his bill taken for confessed. In Maine, where the rights of a defendant in Equity, who resides out of the State, and has had notice of the suit, but does not appear and answer, will not be prejudiced by the decree, the bill may be taken pro confesso as to him. Adams v. Stevens, 49 Maine, 362. ^ Burton v. Mattons, 2 Atk. 114; 1 Barn. 401, S. C. ; Short v. Downer, 2 Cox, 84 ; Neale v. Morris, 5 Ves. 1 ; Bishop of Winchester v. Bourn, ibid. 113 ; Hen- derson V. Meggs, 2 Bro. C. C. 127 ; James v. Dore, 1 Dick. 63; Evarts v. Beeker, 8 Paige, 506. * 4 Sim. 498. 502 OF TAKING BILLS PRO CONFESSO. copy of the order for the defendant to appear had been inserted therein, and, by affidavit, that the order had been published in the defendant's parish church, and that a copy of it had been posted at the Royal Exchange, according to the directions of the Act, but that the defendant had not appeared,^ an order was made, on mo- tion, that the plaintiff's clerk in Court should attend at the hear- ing of the cause with the record of the bill, in order to have the same taken pro confesso against the defendant. The cause having been set down for hearing, it was ordered, on the 23d of March, 1833, on motion, to be placed at the head of the paper of causes for the 27th of that month, and that the plaintiff's clerk in Court should then attend with the record. Accordingly on that day a decree pro confesso was taken. It has been before observed, that the 31st Order of May, 1845,^ applies to the case of a defendaiit who has absconded ; and under the same circumstances as those provided for by the Act, enables the Court to order an appearance to be entered for the defendant, on the application of the plaintiff. We next come to the consideration of the case where the de- fendant, after appearance, makes default in answering,^ and the plaintiff causes compulsory process to be issued against him, but fails in obtaining an execution of the attachment. According to the old practice of the Court a plaintiff, intending to take a bill 7?ro confesso against a defendant who had appeared, but who was in contempt for want of an answer, was obliged, be- fore he could do so, to go through the whole line of process which formerly existed. If upon the attachment the sheriff returned non est inventus, such return was followed by an attachment ivith proclamations, commission of rebellion, Serjeant-at-arms, and se- ^ Sec Christy v. Christy, 6 Paige, 1 70. - Tage 448. ' If a defendant, after appearing, will not answer, the bill will be taken pro confesso, Caines v. Fisher, 1 John. Ch. 8. And where the bill is for relief only, and states sufficient ground, the process for contempt to compel an answer, is not necessary. Ibid. In New Jersey, a decree pro confesso may be taken at any time, after the time limited for the defendant to plead, answer, or demurrer, has expired. It may be taken without notice, and of course, unless it appear that some prejudice will thereby accrue to the adverse party. Oakley v. O'Neill, 1 Green Ch. 287. See Nesbit v. St. Patrick's Church, 1 Stockt. (N. J.) 76. PRELIMINARY ORDER. 503 questration. Upon the return of the Serjeant-at-arms, " non est inventus, ^^ as we have before seen, the writ of sequestration issued ; and it was upon the issuing of this writ, and not upon its execu- tion, that the order for taking the bill pro confesso was made ; but according to the present practice, immediately upon the return of the sheriff, non est inventus, the plaintiff can obtain either an or- der for a Serjeant-at-arms,^ or, in the event of his being able to make a particular affidavit, he can at once obtain the writ of sequestration : ^ and upon the issuing of the writ, he is, by the old practice, entitled to the order to have his bill taken pro con- fesso. A plaintiff has, however, a simpler course under the 77th and following Orders of May, 1845 ; upon reference to which,^ it will appear that if due diligence has been used in procuring process to be executed against the defendant, the plaintiff may, upon notice to the defendant or his solicitor, if the defendant has appeared, or upon publication of the notice of motion, in manner therein speci- fied, if the defendant has not himself appeared, obtain an order to have the bill taken pro confesso. Notwithstanding at one time there seems to have been some doubt upon the subject,* it is now clearly settled that, for the pur- pose of having the bill taken pro confesso, an insufficient answer is treated as no answer, and that the whole bill is taken pro confesso, in the same manner as it is where no answer at all has been put in.^ And so, also, where a husband and wife were defendants, and the husband puts in an answer without his wife joining in it, without an order to warrant such a proceeding, the Court treats the an- swer as a nullity, and will make an order for taking the bill pro confesso.^ It has likewise been held, that where, after a full an- ^ 6th Order, August, 1841. * See ante, p. 478; 9th Order, August, 1841. ' See ante, p. 479. * Hawkins v. Crooke, 2 P. Wms. 556 ; 2 Eq. Cas. Ab. 178. ^ Davis V. Davis, 2 Atk. 22; Dangerfield v. Claiborne, 3 Hen. & Munf. 17; Caines r. Fisher, 1 John. Ch. 8 ; Clason v. Morris, 10 John. 524 ; Buckingham v. Peddicord, 2 Bland, 447; Mayer v. Tyson, 1 Bland, 560. A bill, answered in part only, may be taken as confessed in other parts not answered. Weaver v. Livingston, Ilopk. 493; Pegg v. Davis, 2 Blackf. 184. * Bilton V. Bennett, 4 Sim. 17; Leavitt v. Cruger, 1 Paige, 421. See New York Chem. Co. v. Flowers et ux. 6 Paige, 654. Where a joint answer by husband and wife is put in, it must be sworn to by both. If not so sworn to, and 50-4 OF TAKING BILLS PRO CONFESSO. swer, 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.^ We now come to the consideration of the course to be pursued in order to take a bill pro confesso against a defendant, who is in actual custody for contempt, not putting in an answer to the bill. It has been before shown that, in such cases, it is incumbent upon the plaintiff not to detain the defendant in prison, beyond a cer- tain limited time, without bringing him to the bar of the Court ; ^ but the plaintiff is now enabled to serve a notice of motion upon the defendant, to be made on some day not less than three weeks after the day of such service, that the bill may be taken pro con- fesso against him.^ When the defendant is brought to the bar of the Court he is committed to the Queen's Prison, and then the plaintiff may sue out a writ of habeas corpus^ in manner before stated, upon the re- turn of which an order to have the bill taken pro confesso may be obtained. We have before seen,* that a sequestration is the first compul- sory process which issues against a peer or member of Parliament ; and upon the order for the issuing of the writ being made abso- lute, then, by the original practice of the Court, an order to have the bill taken pj'o confesso may be obtained. In the case of bills for discovery, upon the expiration of the time for answering, an order nisi to take the bill pro confesso may be obtained 5 at once upon the defendant entitled to privilege, being in contempt for want of answer, without any order for a writ of sequestration ; and this order will be made absolute, unless the defendant shows good cause to the contrary. Although no compulsory process issues against the Attorney- 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 Cliem. Co. v. Flowers et ux. 6 Paige, 654. So where an answer is not signed by the defendant, al- though an answer on oath is waived. Dennison v. Bassford, 7 Paige, 370; 1 Jopling V. Stuart, 4 Ves. 619; Bacon v. Griffith, cited ibid; Trust and Fire Ins. Co. V. Jenkins, 8 Paige, 589. * See p. 466. ' 76th Order, May, 1845. Notice of an order pro confesso must be given be- fore final decree. Wampler v. Wolfinger, 13 Maryland, 337. * See p. 466. » See p. 511. PRELIJVriNARY ORDER. 505 General, wc have seen that an order may be obtained for him to put in his answer, within a certain time, or that the bill shall be taken pro confesso. Where a husband 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 a decree can be had against the wife for her inheritence.^ The preliminary order for taking the bill pro confesso having been obtained by one or other of these means, it remains only to be observed, that the mere putting in an answer by the defendant will not 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.* If, however, the plaintiff receives the costs, amends his bill,^ or accepts the answer (by taking a copy of it or otherwise), or takes exceptions 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 confesso without, in the first instance, moving to take the answer off the file, which he cannot do after any of the above-mentioned 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 matter of course to discharge the order for taking the bill pro confesso, and the Court, before doing so, will require to see the answer proposed to be put in, in order that it may form a judg- » Gee V. Cottle, 3 M. & C. 180 ; Nichols v. Ward, 2 Mac. & G. 140. * Pages 144, 145. ' Carter v. Torrance, 11 Georgia, 654 ; Hunter v. Robbins, 21 Alabama, 585. * Williams v. Thompson, 2 Bro. C. C. 280 ; 1 Cox, 413, S. C. ' Weightman v. Powell, 2 De G. & Sm. 570. * Sidgier v. Tyte, 11 Ves. 202. ' Williams v. Thompson, uhi supra. See Robertson v. Miller, 2 Green Ch. 451, 453, 454 ; Wooster v. WoodhuU, 1 John. Ch. 541. VOL. I. 43 506 OF TAKING BILLS PRO CONFESSO. rnent 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.^ Section II. Hearing Decree^ and subsequent Proceedings. The preliminary order having been obtained, the next subject for investigation is the manner in which the cause is heard, and the decree perfected.'-^ By the 82nd Order of May, 1845, it is now provided, that a de- fendant against whom an order to take a bill pro confesso is made is at liberty to appear at the hearing of the cause ; and if he 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 of the cause, the Clerk of Records and Writs at- tends in Court ^ with the record of the bill, and the Court, upon reading the record, and taking it to be true,* will make such de- ^ Hearne v. Ogilvie, 11 Ves. 77. A decree pro confesso will not be set aside to allow a plea to be filed. Bank of St. IVIary v. St. John, 25 Alabama, 566. The order taking a bill pro confesso, takes effect from the time when it is pro- nounced ; and the Court will not discharge the Order, though the answer is filed before the rising of the Court, on the day on which the order is made. James v. Cresswicke, 7 Simons, 143. * See Greaves v. Greaves, 12 Beav. 422, on this subject, * Needham v. Needham, 1 Phil. 646. * The bill being taken pro confesso against a defendant does not preclude him from disputing the amount of the plaintiff's demand in the Master's office. Clay- ton V. Chichester, Craw. & Dix, 73 ; Pendleton v. Evans, 4 Wash. C. C. 391. But the plaintiff is not in such case bound to prove the contract stated in the bill. Douglass V. Evans, 1 Tenn. 18. The allegations in the bill are thereby impliedly admitted, and the Court may decree thereupon. Baltzel v. Hall, 1 Litt. 98 ; At- torney-General V. Carver, 12 Ired. 231, But the neglect of a defendant to an- swer a bill, u[)on which a decree />ro confesso is passed, amounts to an admission only of the allegations in the bill. Robinson v. Townshend, 3 Gill & John. 413, If the charge in the bill be not stated with sufficient certainty, the plaintiff can- not, even after a decree pro confesso, liave a final decree, unless he establish his demand by satisfactory evidence, Pegg v. Davis, 2 Blackf. 281. See Piatt v. Judson, 3 Blackf. 237. So upon a bill taken pro confesso, and an order of refer- ence thereupon to a INIaster, such allegations of the bill as are distinct and posi- tive are to be taken as true, without proof. But not such as are indefinite. Wil- HEARING DECREE, AND SUBSEQUENT PROCf.EDINGS. 507 cree as seems jiist,^ but in no case now will the plaintiff be per- mitted to draw up the decree^ himself: moreover, by the 83rd Order, in the case of any defendant who has appeared at the hear- ing, and waived all objection to such order, to take the bill pro confesso, or against whom the order has been made after appear- ance by himself or his own solicitor, or upon notice served on or after the execution of a writ of attachment against him, the de- cree is to be absolute. By the 85th Order of May, 1845, " 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 dis- penses with service thereof) be served on the defendant against whom the order to take the bill joro confesso was made, or his soli- liams V. Corwin, Hopk. 471 ; Piatt v. Judson, 3 Blackf. 235. But see Singleton V. Gale, 8 Porter, 270; Wilkins v. Wilkins, 4 Porter, 245, where it is said, that before a decree is pronounced on a bill pro confesso, the Court must be satisfied by sufficient evidence, of the justice of the plaintiff's demand. See also Levert V. Redwood, 9 Porter, 80. In an anonymous case, 4 Hen. & Munf 476, it was held, that on a bill taken pro confesso, a plaintiff cannot obtain a final decree without filing his documents, and proving his case. See, however, the quare upon this point in Coleman v. Lyne, 4 Rand. 454. In Larkin v. Mann, 2 Paige, 27, it was held, that if a bill be taken jor-o confesso, the proof of the plaintiff's title may be made before a Master, on reference. But if an issue of fact is joined in the cause, the plaintiff may make the necessary proof and produce the abstract of the conveyances, before the examiner. 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 confesso, the amount must be referred to a Master. The decree is always nisi. See Robertson v. Miller, 2 Green Ch. 451. Where a bill against heirs does not allege, that any estate has descended, tak- ing it pro confesso will not amount to a confession that any 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 pro confesso against the others, without proof, no decree can be taken, even against the latter. Cunningham v. Steele, 1 Litt. 58. If a bill Is taken pro confesso 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. Davoue v. Fanning, 4 John. Ch. 199. A decree is erroneous, if taken against infants, by default, without proof, though there be a guardian ad litem. Massie v. Donaldson, 8 Ohio, 377. See Carneal v. Sthreshley, 1 A. K. Marsh. 471. ^ But if the bill does not contain the requisite allegations, it will entitle the plaintiff to no relief, though taken for confessed. Strolbet v. Lovejoy, 8 B. Mon- roe, 135. " Order 85, May, 1845 ; Lloyd v. Lloyd, 4 Dr. &; W. 354. 508 OF TAKING BILLS PRO CONFESSO. citor ; and in cases where the decree is not absolute, under Order 83, such defendant, or his soHcitor, is to be at the same time served with a notice, to the effect, that if such defendant desires permis- sion to answer the plaintiff's bill, and set aside the decree, appli- cation for that purpose must be made to the Court within the time specified in the notice, or that such defendant will be absolutely excluded from making any such application.^ If such last-mentioned notice is to be served within the juris- diction of the Court, the time therein specified for such application to be made by the defendant is to be three weeks after service of such notice, but if such notice is to be served out of the juris- diction of the Court, such time is to be specially appointed by the Court on the ex parte application of the plaintiff.^ By the 84th of the same Orders, in pronouncing the decree, the Court may, either upon the case stated in the bill, or upon 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 coyifesso, to be appointed 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 and personal estate of such sum or sums of money as at the hearing, or any subsequent stage of the cause, the plaintiff appears to be entitled to ; provided that, unless the decree be absolute, such payment is not to be directed without security being given by the plaintiff for restitution, if the Court afterwards thinks fit to order restitution to be made ; but no proceeding is to be taken, and no receiver appointed under the decree, nor any sequestrator, under any sequestration issued in pursuance 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 compel performance of the decree without leave of the Court, which is to be obtained on motion, with notice served on such defendant, or his solicitor, unless the Court dis- penses with such service.^ By the 89th Order of May, 1845, any defendant waiving all ob- jection to the order to take the bill pro confcsso, and submitting to 1 8Gth Order, May, 1845 ; and see Benbow v. Davies, 12 Beav. 421. 2 87th Order, May, 1845. » 88th Order ; and see Dresser v. Morton, 2 Phil. 285. HEARING DECREE, AND SUBSEQUENT PROCEEDINGS. 509 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 petition for rehearing being signed by counsel, as other petitions for rehearing. By the 90th Order, in cases where a de- cree is not absolute under Order 80, the Court may order the same to be made absolute, on the motion of the plaintiff made, — 1. After the expiration of three weeks from the service of a copy of the decree on a defendant, where the decree has been served within the jurisdiction. 2. After the expiration of the time limited by the notice pro- vided for by Order 86, where the decree has been served without the jurisdiction.^ 3. After 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 the decree is not absolute under Order 83, and has not been made absolute under Order 90, 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, being 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 enrolment (if any) of the decree, and permit such defendant to answer the bill ;2 and, if permission be given to such defendant to » Trilly v. Keefe, 16 Beav. 83. * A defendant, who has suffered the bill to be taken pro confesso, and a decree to be entered by default, may, under the special circumstances of the case, be let into a defence on terms. Relief is a matter of sound discretion, Wooster v. Woodhull, 1 John. Ch. 539 ; Parker v. Grant, ib. 630. But where, in such case, there had been gross negligence on the part of the defendant, and a witness of the plaintiff had died, relief was refused. Ib. See also a full discussion of this subject in Robertson v. Miller, 2 Green Ch. 451. Under the 19th Equity Rule of the United States Courts, when the bill is taken pro confesso, the Court may proceed to a decree at the next ensuing term therfeof, and such decree rendered shall be deemed absolute, unless the Court shall, at the same term, set aside the same, or enlarge the time for filing the answer, upon cause shown upon motion and affidavit of the defendant. And no such motion shall be granted, unless 43* 510 OF TAKING BILLS PRO CONFESSO. answer the bill, 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.^ And, by the 92d Order, the rights and liabilities of any plaintiff or defendant, under a decree made upon a bill taken jiro confesso, extend to the representatives of any deceased plaintiff or defend- ant, and to any persons or person claiming under any person who was plaintiff or defendant at the time when the decree was pro- nounced; and with reference to the altered state of parties and any new interests acquired, the Court may, upon 'motion or peti- tion, served in such manner, and supported by such evidence as, under the circumstances of the case, the Court deems sufficient, permit any party, or the representative of any party, to file such bill or bills, or to adopt such proceedings as the nature and cir- cumstances 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, and the rights of the parties duly ascertained and determined. As the last-mentioned Orders of May, 1845, regulate in general the practice in taking decrees pro confesso, it is not necessary to set forth at length the statutes or orders which were previously in operation. Since, however, the sections of 1 Will. IV. c. 36, ap- plicable to this subject, are not repealed, cases may possibly still occur under them,^ and for these special cases reference may be made to the Act itself, sections 3 to 8 inclusive. It may be observed, that under the statute a decree did not be- come absolute against a defendant who had absconded, and had never been served with a copy until the expiration of seven years from the date of the decree, whereas, under the 90th Order of May, 1845, 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 provisions of the statute applied only to cases where the upon the payment of the costs of the plaintiff in the suit up to that time, or such part thereof as the Court shall deem reasonable, and unless the defendant shall undertake to file his answer within such time as the Court shall direct, and sub- mit to such other terms as the Court shall direct, for the purpose of speeding the cause. '91st Order, May, 184.5. ' Wilkin V. Nainby, 4 Ilare, 476. HEARING DECREE, AND SUBSEQUENT PROCEEDINGS, 511 defendant absconded to avoid being served Avith process, within the meaning of the 3d section. In all other cases 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 Orders of May, 1845, however, apply, 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. They introduce, as we have seen, some peculiarities into the manner of proceeding under a decree obtained by the bill being taken pro confesso^ but in all respects, other than those before stated, a de- cree pro confesso is executed in the same manner as a decree made upon a regular hearing. In the case of King v. Bryant,^ the plaintiff had obtained the ordinary decree in a foreclosure suit, by having his bill taken pro confesso; thereupon, notwithstanding the defendant was in custody, the plaintiff proceeded to take the accounts ex parte, and the question arose, whether he was regular in so doing. Lord Cottenham decided that he was not so, observ- ing, " The Court punishes the defendant's default in refusing to answer, by giving to the plaintiff the benefit of a decree upon the bill as confessed ; but there the advantage stops : and when the decree is once pronounced, the subsequent duty of the Court and its officers is to execute the decree in the ordinary way." ^ It may * Landon v. Ready, 1 S. & S. 44 ; Ogilvie v. Hearne, 13 Ves. 563 ; Knight v. Young, 2 V. & B. 184. « 3 M. & C. 191. ' In all suits for the foreclosure or satisfaction of a mortgage, in New Jersey, when the plaintiff's bill shall be ordered to be taken as confessed, or the defendant shall make default at the hearing, and the whole amount of the debt intended to be secured by the mortgage shall have become due, no order of reference to a Master to ascertain and report the sum due to the plaintiff shall be necessary, un- less specially directed by the Court ; but a report by a Master being made of the amount due upon the 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 plain- tiff's bill shall be taken as confessed against the mortgagor, and other defendants claiming to be incumbrancers file their answer or answers setting up said incum- brances, if the order of priority shall not appear, upon the face of the pleadings, to be disputed by the parties, either plaintiff or defendant, and the amounts re- spectively 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 necessary 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. Chancery Rule of New Jersey 14, § 3, 5. This rule makes other pro- visions for proceedings in cases of bills taken as confessed. 512 OF TAKING BILLS PRO CONFESSO. be observed, that in this case the defendant was in custody, and therefore capable of being served. It was said in the argument, that there is a distinction between such a case, and one under the statute for want of appearance, where the defendant has absconded. In the latter case, there being no one whom the plaintiff can serve, all the subsequent proceedings must^ necessarily be ex parte? With respect to bills for discovery, the Orders of May, 184S, do not make any distinction between such bills and bills for relief,^ but the Stat. 1 Will. IV. c. 36, s. 13, 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 bill pro confesso can be obtained against a privileged defendant until the writ of sequestra- tion 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, al- though no sequestration has issued, order the bill to be taken pro confesso, unless the defendant shall within eight days after being served with 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 any necessity for a further hearing of the cause, unless it is rendered necessary by the 81st Order of May, 1845. 1 Thompson v. Trotter, 10 Dec. 1833, there cited ; Donicetti v. Latti, 2 Dick. 588. * Under 18th Equity Rule of the United States Courts, after an order that the bill be taken pro confesso, the cause proceeds ex parte, and the matter of the bill may be decreed by the Court at the next ensuing term thereof accordingly, if the same can be done without an answer, and is proper to be decreed ; or the plaintiS", if he requires any discovery or answer to enable him to obtain a proper decree, shall be entitled to process of attachment against the defendant, to com- pel an answer ; and the defendant shall not, when arrested upon such process, be discharged therefrom, unless, upon filing his answer, or otherwise complying with such order, as the Court or a judge thereof may direct, as to pleading to, or fully answering the bill, within a period to be fixed by the Court or judge and under- taking to speed the same. ' See Calnes v. Fisher, 1 John. Ch. 8. * See Jones v. Davis, 17 Ves. 368, and Logan v. Grant, 1 Mad. 626. ON CLAIMS. 513 After the Order lias been pronounced, by the 14th sect. 1 Will. IV. c. 36, " the bill, or an examined copy thereof, shall be taken and read in any Court of Law or Equity as evidence of the facts, and matters and things therein contained, in the same manner as if such facts, matters and things had been admitted to be true by the answer of the defendant put in to such bill ; ^ and such bill so taken pro confesso shall 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 said bill could and might have been read and received in evidence of in case such answer 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 confesso^ under any of the provisions of this Act, shall or may be taken and read in evidence of the facts and matters, and things therein contained, to the extent aforesaid." It may be observed, that this last provision for making the bill evidence is not confined to privileged defendants, but it applies to all cases where the bill is taken pro confesso under the provisions of the Act ; it does not seem that there is any direct order or stat- ute making a bill taken pro confesso, otherwise than under the Act, evidence against the defendant.^ CHAPTER X. ON CLAIMS. As in the last Chapters a full explanation has been given of the mode of originating an ordinary suit in the Court of Chancery, and of the form and substance of a bill, it will now be convenient to state the peculiarities and exceptions from the general rules in- cident to the commencement of a cause by what is called a claim. The course of proceeding is of very recent date, and is not due directly to any enactment of the legislature, but to a series of Orders that issued on the 22d day of April, 1850, and were signed by all the judges who then held office in the Court of Chancery. » See Stafford v. Brown, 4 Paige, 360. * As to the authority to appear for a body politic, see the Cape Sable Co.'s Case, 3 Bland, 606. 514 ON CLAIMS. The general effect of these Orders as respects a very large num- ber of cases cognizable in Equity was almost entirely to supersede the use of written pleadings. The advantages that these Orders conferred upon the suitors of the Court of Chancery at the time when they issued were very great, and it is due to the judges who then presided in Equity, and more especially to the present Lord Justice Knight Bruce, who at that time was Vice-Chancellor, to say, that to the vigorous and effective manner in which this first great reform of the Court was carried into effect we may fairly attribute the more general changes that have since, with such great benefit to the public, been directly sanctioned by the legis- lature. It must, however, now be stated that the subsequent alterations to which allusion has just been made have most materially dimin- ished the value and importance of the orders concerning claims. The Act for amending the Practice of the Court of Chancery has adopted many of the most beneficial innovations of these Orders, and applied them not merely to one class of suits, but to suits of all descriptions, and has, in many instances, carried to a further extent the principles that were first recognized, and acted upon in a somewhat timid manner under the Orders on Claims, so that now the use of this mode of commencing proceedings in Chancery has diminished, and it may fairly be doubted whether there is sufficient value in the distinction between bills and claims to make it worth while to continue two somewhat different courses of procedure. The Orders, however, are still in force, and it is therefore necessary here to set them forth and explain the peculiarities incident to a suit begun by claim. It must, in the first instance, be stated that the ordinary practice by bill applies in all cases unless a special direction is given to the contrary.^ The Orders on claims will be set forth continuously, although some of them relate to matters not yet treated of. It may be observed, that they are almost silent as to the mode in which evidence is to be adduced upon points of conflict, and it may well be doubted whether it is possible to devise any suitable mode of trying a difficult cause which does not involve a clear statement by both parties of their respective cases. Moreover, it ^ Claims cannot be taken proconfesso; Henderson v. Thomas, 10 Hare, App. 67; as to the amendment of claims, see Pearson v. Wilcox, 10 Hare, App. 40, and 17 Beav. 7. ON CLAIMS. 515 does not appear that there is any provision in tlio Orders for giving to a plaiutitf that most valuable privilege, whieh he possesses under the ordinary forms in equity, of obtaining a full discovery from the defendant of all that he knows concerning the matter in dis- pute.^ The Orders are as follows : — I. Any person seeking equitable relief may, without special leave ^ of the Court, and instead of proceeding by bill of complaint ia the usual form, file a claim in the Record and Writ Clerk's Office, in any of the following cases ; that is to say, in any case where the plaintiff is or claims to be, — 1. A creditor upon the estate of any deceased person, seek- ing payment of his debt ^ out of the deceased's personal assets.* 2. A legatee under the will of any deceased person, seeking payment or delivery of his legacy out of the deceased's per- sonal assets.^ 3. A residuary legatee,^ or one of the residuary legatees, of any ^ Jacobs V. Richards, 18 Beav. 308; Johns v. Mason, 9 Hare, 35; Robinson v. Turner, 9 Hare, 129, 488. The 12th section of 15 & 16 Vict. c. 86, enabling a plaintiff to file interrogatories for the examination of a defendant, applies only to suits commenced by bill. ^ Leave will be refused whenever, upon the statement of the case, it appear that the claim comes fairly within any one of the cases enumerated at the end of the order ; Hill v. Tollett ; Toon v. Cotterell, 14 Jur. 486, 848 ; and it may be observed, that the union of any two of the following grounds of suit will not render the case a special one, so that leave should be necessary ; Forrest v. Scholefield, 14 Jur. 485. * Where the debt is in any manner charged on the real estate, and relief is sought accordingly, a claim may be filed, but special leave is requisite; Ferris v. Ferris and Cox v. Yorke, 14 Jur. 845. * See Schedule (A.), No. 1, for the form of claims; Schedule (C.) Nos. 1 and 2, for form of Orders. 5 See Schedule (A.), No. 2, and Schedule (C), No. 3, for form of Orders. See Smith v. Smith, 14 Jur. 581, as to a specific legacy. * Leave will be given in the case of a residuary devisee, but the case is special when the claim relates in any manner to land. If the residuary legatees or de- visees are a class, and not named in the will, inquiries will be directed as to the class, and a declaration inserted that they shall be at liberty to attend the Mas- ter. See post. Order 18. 516 ON CLAIMS. deceased person, seeking an account ^ of the residue and payment or appropriation of his share therein. ^ 4. The person or any of the persons entitled to the personal es- tate of any person who may have died intestate, and seeking an account of such personal estate and payment of his share thereof.^ 5. An executor or administrator of any deceased person, seek- ing to have the personal estate of such deceased person ad- ministered under the directions of the Court.^ 6. A legal or equitable mortgagee or person entitled to a lien as security for a debt, seeking foreclosure or sale,^ or other- wise to enforce his security.^ 7. A person entitled to redeem '^ any legal or equitable mort- gage, or any lien, seeking to redeem the same.^ 8. A person entitled to the specific^ performance of an agree- ment for the sale or purchase of any property seeking such specific performance.^*^ 9. A person entitled to an account of the dealings and transac- ^ There seems no doubt that a receiver may be appointed upon a claim, and it is doubtful whether the fact of a claim demanding that a receiver be appointed makes It special, so as to require leave to file It. The claim ought to pray for a receiver in the same manner as a bill ; Chalk v. Sanders, and Kempley v. Hig- gins, 14 Jur. 847. See, however, BIckford v. Chalker, 14 Jur, 997. '^ See Schedule (A.), No. 3, and Schedule (C), No. 4, for form of Order. » See Schedule (A.), No. 4, and see Schedule (C), No. 5, for form of Or- der. * See Schedule (A.), No. 5, for form of Claim, and Schedule (C), No. 6, for form of Order. Where executors are devisees in tail of land, leave is necessary ; Pickford v. Young, 12 Beav. 537. ^ Where conveyance is sought for by an equitable mortgagee, leave Is neces- sary. Phlpps V. Budd, 15 Jur. 97. » See Schedule (A.), No. 6, and Schedule (C), Nos. 7, 8, for form of Order; Robinson v. Turner, 9 Hare, 129. ' As a general rule the account Is taken against a mortgagee in possession with a charge of " wilful default," and It seems that this circumstance does not render it necessary In such a case to obtain leave to file a claim ; Toon v. Cotterell, 14 Jur. 846. 8 See Schedule (A.), No. 7, and Schedule (C), No. 9, for form of Order. ^ In Keeble v. Dennish, 14 Jur. 847, leave was given to file a claim for specific performance of an agreement to grant a lease. There may be doubts, however, whether such an agreement is not a sale pro tanto, and therefore within the Order. See also Hemming v. Mayo, 14 Jur. 847 ; and 9 Hare, App. 11. " See Schedule (A.), No. 8, and Schedule (C), No. 10, for form of Order. ON CLAIMS. 517 tions of a partnership ^ dissolved or expired seeking such account.^ 10. A person entitled to an equitable estate or interest, and seek- ing to use the name of his trustee in prosecuting an action for his own sole benefit.^ 11. A person entitled to have a new trustee appointed in a case where there is no power in the instrument creating the trusts to appoint new * trustees, or where the power cannot be exercised, and seeking to appoint a new ^ trustee.^ 11. Such claim in the several cases enumerated in Order L is to be in the form and to the effect set forth in Schedule (A.) hereunder written, as applicable to the particular case, and the filing of such claim is, in all cases, not otherwise provided for, to have the force and effect of filing a bill.'^ III. Every such claim is to be marked at or near the top or upper part thereof in the same manner as a bill is now marked with the name ^ Leave was given to file a claim where the plaintiffs, one firm of solicitors, agreed with the defendants, another firm of solicitors, to work for them a com- mission of bankruptcy, and divide the profits; 14 Jur. 846. ^ See form of Claim, Schedule (A.), No. 9, and Schedule (C), No. 11, for form of Order. * See McDermott v. Ward, 14 Jur. 518, and Schedule (A.), No. 10, for form of Claims, and Schedule (C), No. 14, for form of Order. * Leave will be given where the case does not come fairly within either of the two contingencies; viz., there being no power, or that the power cannot be exer- cised ; Tarlton v. Titley, 14 Jur. 148. Where married women are interested in the subject-matter of the trust it appears that their husbands must be served and appear before the Court; Gray v. Dickinson, 14 Jur. 846 ; of course all the par- ties interested should be summoned, but this may be done in chambers ; Frith V. Humble, 14 Jur. 544. * In SItwell V. Heron, 14 Jur. 848, a declaration was inserted that one trustee instead of two might be appointed if found that it would be more beneficial to the parties. « See Schedule (A.), No. 11, for form of Claim, and Schedule (C), No. 13, for form of Order. ^ It appears that an order for an injunction cannot be obtained upon a claim, at least before decree ; but probably, on a decree having been made in a suit for the administration of the estate of a deceased person, it will be possible to obtain an injunction against a creditor suing the executor at law in the same manner as if the decree had been made upon a bill and not upon a claim. VOL. I. 44 518 ON CLAIMS. of the Lord Chancellor, and one of the Yice-Chancellors, or with the name of the Master of the Rolls.^ lY. Upon filing such claim the plaintiff thereby claiming may sue out a writ of summons against the defendant to the claim, requir- ing him to cause an appearance to be entered to such writ, and also requiring him, on a day or time to be therein named, or ou the seal or motion day then next following, to show cause, if he can, why such relief as is claimed by the plaintiff should not be had, or why such order as shall be just with reference to the claim should not be made.^ Since this Order was issued the Chancery Amendment Act ^ has abolished the writ of summons, as well as the subpoena, and now printed copies of claims are served in the same manner as bills.* V. Provides for the form of the summons, and is now immaterial. VI. In any case,^ other than those enumerated in Order I., or in any case to which the forms set forth in Schedule (A.) are not appli- cable, the Court (if it shall so think fit) may, upon the ex parte application of any person seeking equitable relief, and upon read- ing the claim proposed to be filed, give leave ^ to file such claim, ^ On this subject, see ante, p. 319. * There are no provisions in these orders to have the claim taken pro confesso, or to have an appearance entered for an absconding defendant ; Smith v. Corles, 15 Jur. 4; Henderson v. Thomas, 10 Hare, App. 6 7. 3 15 & 16 Vict. c. 86, § 2. ' Ante, p. 428. ^ This order is an exceedingly important one. It enables the system of pro- ceeding by claim to be applied to any case for equitable relief, subject only to the discretion of the judge in giving leave for the claim to be filed, and subject to the opinion of the parties that such form of proceeding will prove suitable to the particular case. The Court seems to have acted on the principle that relief bv injunction cannot be obtained upon a claim. There does not seem to be any other species of equitable relief concerning which a clear decision of the Court has been given to the effect that it cannot be obtained upon a claim ; see Holdea V. Chalcraft, 14 Jur. 840. Various cases will be found where leave has been given to file claims, in the 14th vol. of Jur. pp. 453, 518, 540, 568, 613, 845; and as to the manner in which the case ought to be stated in a claim, see the cases in 9 Hare, pp. 29, 39, 215, 374, and 378. 8 Of course, in cases which are not enumerated in Order I., it is irregular to file a claim without leave. Where such irregularity is made apparent to the ON CLAIMS. 519 and sue out a writ of summons thereon under these Orders ; and if such leave be given, an endorsement thereon by the registrar upon the proposed claim shall be a sufficient authority for the Record and Writ Clerk to receive and file such claim. VII. In the case provided for by the 5th Article of Order I. any one ^ person who, under the 3rd or 4th Article of Order I., might have claimed relief against the executor or administrator of the de- ceased person whose personal estate is sought to be administered, and the co-executor or co-administrator (if any) of the plaintiff, may be named in the writ of summons as defendants to the suit ; and, in the first instance, no other person need be therein named. VIII. In other cases the only ^ person who need be named in the writ of summons as defendant to the suit in the first instance is the person against whom the relief is directly claimed.^ . IX. All claims, and all writs, caveats, proceedings, directions, and orders consequent thereon, either before the Court or in the Mas- ter's offices, are to be deemed proceedings, writs, and orders sub- ject to the general rules, orders, and practice of the court, so far as the same are or may be applicable to each particular case and consistent with these Orders ; and all orders of the Court made in Court, the claim may be ordered to be taken off the file ; Witherden v. Mercer, 14 Jur. 613. In another case, upon the claim so irregularly filed coming on for hearing, the Court ordered it to be struck out of the paper, and gave leave for it to be filed as a special claim; Chambre v. Maude, 14 Jur. 540. In another case leave was given nunc pro tunc, and the hearing allowed to proceed ; Scar- gill V. Hurry, 14 Jur. 847. ^ Under this order it is clear that it is only necessary to make one of the per- sons interested in a residue a party in the first instance. See the 18th Order, post, for the manner in which the other persons interested may be brought before the Court upon the accounts being taken. * It would appear from this that when such relief is claimed against more than one person they must all be parties. By the 35th Order the singular number includes the plural. * See the cases of Donald v. M'Rae, 9 Hare, 297; Haig v. Gray, 3 De G. & Sm. 741 ; Burgess v. Sturgess, 14 Beav. 440; Ewington v. Fenn, 9 Hare, App. 10; and see also Chapter on Parties, 175. 520 ON CLAIMS. such proceedings are to be enforced ^ in the same manner and by tlie same process as orders of the Courts made in a cause upon hill filed. X. Writs of summons ^ are, as to the number of defendants to be named therein, as to the mode of service thereof, and as to the time and mode of entering appearances thereto, to be subject to the same rules as writs of subpoena to appear to and answer bills.^ XI. The time for showing cause named in any writ of summons (ex- cept a writ of summons to revive and carry on proceedings) is to be fourteen days at the least after service of the writ ; but, by con- sent of the parties, and with the leave of the Court, cause may be shown on any earlier day.* XII. At the time for showing cause named in the writ, or on the seal or motion day then next following, or so soon after as the case can be heard, the defendant, having previously appeared, is personally or by counsel to show cause in the Court, if he can (and if neces- sary by affidavit^), why such relief as is claimed by the claim should not be had against him. XIII. At the time appointed for showing cause, upon the motion of the plaintiff, and on hearing the claim, and what may be alleged on ^ The mode of enforcing orders of the Court will be the subject of a future Chapter. * The writ of summons has, as before stated, been abolished, but this Order renders it clear that the service of a claim is to be the same as that of a bill, ante, p. 428. * Service was ordered on a defendant out of the jurisdiction in James v. Bart- ley, 14 Jur. 847, and Thomas v. Colsworth, 14 Beav. 208. * When a claim having been set down is advanced upon the certificate of one side only, due notice of the advancement should be given to the other side before the day for hearing. * This is the only passage in the orders which gave any information concern- innf the manner in which evidence was to be adduced in a suit commenced by a claim. The orders left it doubtful whether the plaintiff could or could not prove his case by affidavit. It will be seen in the subsequent Chapters on Evidence that now, both in the case of bills and claims, proof may be adduced by affidavit. ON CLAIMS. 521 the part of the defendant, or upon reading a certificate of the ap- pearance being entered by the defendant, or an affidavit of the writ of summons being duly served, the Court may, if it shall think fit, make an order granting or refusing the relief claimed, or directing any accounts or inquiries to be taken or made, or other proceedings to be had, for the purpose of ascertaining the plain- tiff" 's title to the relief claimed: and further, the Court may direct such (if any) persons or classes of persons as it shall think neces- sary or fit, to be summoned or ordered to appear as parties to the claim, or on any proceedings before the Master,^ with reference to any accounts or inquiries directed to be taken or made, or other- wise. XIV. Every order to be so made is to have the effect of and may be enforced as a decree or decretal order made in a suit commenced by bill, and duly prosecuted to a hearing according to the present course of the Court. XV. If, upon the application for any such order, or during any pro- ceedings under any such order when made, it shall appear to the Court that for the purposes of justice between the parties it is necessary or expedient that a bill sliould be filed, the Court may direct or authorize such bill to be filed, subject to such terms as to costs or otherwise as may be thought proper. XVI. The orders made for granting relief in the several cases to which the forms set forth in Schedule (A.) are applicable may, if the Court thinks fit, be in the form and to the effect set forth in Schedule (C.) as applicable to the particular case, with such variations^ as circumstances may require. XVII. Under every order of reference to the Master,^ under these 1 See post, Order 18, and Bell v. Hornby, 14 Beav. 439; Charlton v. Allen, 9 Hare, App. 67 ; Henderson v. Thomas, 10 Hare, App. 67. ^ It may be here observed, that the form of order given does not direct that just allowances should be made to the accounting parties. Where such a direc- tion is material, special application should be made to vary the common order by inserting it. ^ This order is in some respects made obsolete by the abolition of the office of 44* 522 ON CLAIMS. Orders, the Master is, unless the Court otherwise orders, to be at liberty to cause the parties to be examined on interrogatories, and to produce deeds, books, papers and writings, as he shall think fit, and to cause advertisements for creditors, and if he shall think it necessary, but not otherwise, for heirs, and next of kin, or other ■unascertained persons, and the representatives of such as may be dead, to be published in the usual forms, or otherwise, as the cir- cumstances of the case may require ; and in such advertisements to appoint a time within which such persons are to come in and prove their claims, and within which time unless they so come in, they are to be excluded the benefit of the order ; and in taking any account of a deceased's personal estate under any such order of reference, the Master is to inquire and state to the Court what part, if any, of the deceased's personal estate is outstanding or undisposed of,^ and is also to compute interest on the deceased's debts, as to such of them as carry interest after the rate they respectively carry, and as to all others after the rate of four per cent per annum from the date of the order, and to compute in- terest on legacies after the rate of four per cent per annum from the end of one year after the deceased's death, unless any other time of payment or rate of interest is directed by the will, but in that case according to the will ; and under every order whereby any property is ordered to be sold with the approbation of the Master, the same is to be sold to the best purchaser that can be got for the same, to be allowed by the Master, wherein all proper parties are to join as the Master shall direct.^ XVIII. If, upon the proceedings before the Master under any such order, it shall appear to the Master that some persons, not already parties, ought to attend or to be enabled to attend the proceedings before him, he is to be at liberty to certify the same ; and upon the production of such certificate to the Record and Writ Clerk, the Master, but it will still be important in considering the form of inquiry under a claim, as the judge in chambers will have the powers and duties hereby conferred or imposed upon the Master. * No order for just allowances. See note (n), supra, p. 387, and Seton on De- crees, p. 11. 2 This subject will be further explained in the Chapter on Proceedings in Chambers. ON CLAIMS. 523 plaintiff^ may sue out a writ of summons ^ requiring the person named in such certificate to appear to the writ, and such persons are thereupon to be named and treated as defendants to the suit. XIX. Such writ of summons under an order or Master's certificate is to be in the form and to the effect in that behalf set forth in No. 2 of Schedule (B.), with such variations as circumstances may require. [This Order appears to be now obsolete.] XX. The persons so summoned having appeared are to be at liberty to attend, and to be entitled to notice of the proceedings before the Master under the order of reference, subject to such directions as the Master may make in respect thereof. XXI. Where any proceedings originally commenced by claim and writ of summons shall by the death of parties, or otherwise, have become abated or defective for want of parties, and no new relief is sought, a claim to revive or carry on the suit may be filed ; and such claim is to be in the form set forth in No. 12 of Schedule. XXII. The party claiming simply to revive or carry on proceedings may sue out a writ of summons requiring the defendant thereto to appear to the writ, and to show cause, if he can, why the pro- ceedings should not be revived or carried on. XXIII. Such writ of summons is to be in the form and to the effect in that behalf set forth in No. 3 of Schedule (B.), with such vari- ations as circumstances may require. * If he refuses, the defendant may sue out the writ ; TurnbuU v. Warne, 2 De G. Mac. & Gor. 281. * It is presumed that now such parties should be served with notice of the de- cree under rule 8 of 15 & 16 Vict. c. 86, § 42, the writ of summons having been abolished. ' This and the three following Orders appear to be now obsolete, and in all cases suits or claims simply to revive will be abolished, and the defendant will be served with an order to revive under 15 & 16 Vict. c. 86, § 52. 524 ON CLAIMS. XXIY. If any defendant to any such writ is desirous of showing cause why the proceedings should not be revived or carried on, he is to appear and to file a caveat against such revivor or carrying on in the Record and Writ Clerk's Office, in the form set forth in No. 4 of Schedule (B.), and to give notice thereof in writing to the op- posite party. If no such caveat be filed within eight days from the time limited for his appearance to the writ, then at the expi- ration of such eight days the proceedings are to be revived, and may be carried on without any order for the purpose ; and a certi- ficate of the Record and Writ Clerk, that no caveat has been filed within the time limited is to be a sufficient authority for the Master to proceed. But if any such caveat be filed, the proceedings are not to be revived or carried on without an order to be obtained on motion, of which due notice is to be given. XXV. Where any further or supplemental relief is sought, and such supplemental relief is such as is provided for in any of the cases enumerated under Order I., a supplemental claim may be filed in such of the forms set forth in Schedule (A.) as is applicable to the case. XXVI. If such supplemental relief is not such as is provided for by Order XXV., a supplemental claim may be filed, stating shortly the nature of the plaintiff's case, and the supplemental rehef claimed, but the leave of the Court is to be obtained previously to the filing thereof upon an ex parte application for the purpose, in the manner specified in Order VI. XXVII. A writ of summons 1 may be sued out and other proceedings may be taken upon a supplemental claim in like manner as upon an original claim. XXVIII. Guardians ad litem to defend may be appointed for infants or 1 It has been decided, that the 52nd and 53rd sects, of 15 & 16 Vict. c. 86, ap- ply to claims as well as bills. Martin v. Hadlow, 16 Jur. 964 ; 9 Hare, App. 52. The above Orders are therefore now comparatively unimportant. ON CLAIMS. 525 persons of weak or unsound mind against whom any writ of sum- mons may have issued under these Orders, in like manner as guardians ad litem to answer and defend are now appointed in suits on bill filed. XXIX. Any order or proceeding made or purporting to be made in pursuance of these Orders may be discharged, varied or set aside on motion ; and any order for accelerating proceedings may be made by consent.^ XXX. Any order of the Master of the Rolls or of any of the Vice- Chancellors may be discharged or varied by the Lord Chancellor on motion. XXXI. If any of the cases enumerated in Order I. involve or are at- tended by such special circumstances affecting either the estate or the personal conduct of the defendant as to require special relief, the plaintiff is at liberty to seek his relief by bill as if these Orders had not been made. XXXII. If at any time after these Orders come into operation any suit for any of the purposes to which the forms set forth in Schedule (A.) are applicable shall be commenced by bill and prosecuted to a hearing in the usual course, and upon the hearing it shall appear to the Court that an order to the effect of the decree then made, or an order equally beneficial to the plaintiff, might have been ob- tained upon a proceeding by summons in the manner authorized by these Orders, the Court may order that the increased costs which have been occasioned by the proceeding by bill beyond the amount of costs which would have been sustained in the proceed- ing by summons shall be borne and paid by the plaintiff.^ The 33rd Order contained a list of fees upon claims, but several of these have since been altered, and it will be convenient to treat the subject fully in the subsequent Chapter on Costs. ^ The practice on appeals will be as nearly as possible the same as that in suits commenced by bill. Sims v. Helling, 2 De G., Mac. & Gor. 291 ; Neathway v. Reed, 2 De G., Mac. & Gor. 30. * Holford V. Yate, 10 Hare, App. 40. 526 ON CLAIMS. XXXIY. These Orders shall come into operation on the twenty-second day of May, 1850. XXXY. In these Orders and the schedules the following words have the several meanings hereby assigned to them, over and above their several ordinary meanings, unless there be something in the sub- ject or context repugnant to such construction ; viz., 1. Words importing the singular number include the plural number, and words importing the plural number include the singular number : 2. Words importing the masculine gender include females : 3. The word " affidavit " includes " affirmation " and " declar- ation on honor " : 4. The word "person" or "party" includes a body politic or corporate : 5. Tlie word " legacy " includes " an annuity " and a specific as well as a pecuniary legacy : 6. The word " legatee " includes " a person interested in a leo-acv " : 7. The expression " residuary legatee " includes " a person in- terested in the residue." SCHEDULE (A.) Forms of Claim. 1. By a creditor upon the estate of a deceased person, seeking payment of his debt out of the deceased's personal assets. In Chancery. [Lord Chancellor], [Vice-Chancellor of England, or Vice-Chancellor, naming hirifi] , or, [Master of the Rolls]. Between A. B., Plaintiff. E. F., Defendant. The claim of A. B. of the above-named plaintiff. ON CLAIMS. 527 The said A. B. states, that C. D., late of deceased, was, at the time of his death, and that his estate still is, justly in- debted to him the said A. B. in the sum of £ for goods sold and delivered by the said A. B. to the said C. D. [or otherwise, as the case may be, or, if- the debt is secured by any written itistrti- ment, state the date and nature thereof '\. And that the said C. D. died in or about the month of and that the above-named defendant E. F. is the executor [or administrator'] of the said C. D,, and that the said debt hath not been paid ; and therefore the said A. B. claims to be paid the said debt or sum of X with his costs of this suit, and in default thereof he claims to have the personal estate of the said C. D. administered in this Court, but on behalf of himself and all other the unsatisfied creditors of the said C. D., and for that purpose that all proper directions may be given and accounts taken. Note. — This form may be varied, according to the circum- stances of the case', where the claimant is not the original cred- itor, but has become interested in or entitled to the debt ; in which case the character in which he claims is to be stated. 2. By a legatee under the will of any deceased person, seeking payment or delivery of his legacy, out of the testator's per- sonal assets. In Chancery. [Lord Chancellor], [Vice-Chancellor of England, or Vice-Chancellor, naming him] , or, [Master of the Rolls]. Between A. B., Plaintiff. C. D., Defendant. The claim of A. B. of the above-named plaintifif. The said A. B. states, that he is a legatee to the amount of <£ , under the will dated the day of of late of deceased, who died on the day of and that the above-named C. D. is the executor of the said and that the said legacy of £ , together with interest thereon after the rate of X per cent per annum from the day of [the day mentioned in the will for the payment of the legacy, or 528 ON CLAIMS. the expiration of twelve calendar months after the said testator'' s deaih,^ is now due and owing to him the said A. B., [or still un- paid or unsatisfied,'] [or unappropriated or unsecured,] and the said A. B. therefore claims to be paid [or satisfied'] the said leg- acy and interest, [or to have the said legacy and interest appropri- ated and secured,] and in default thereof he claims to have the personal estate of the said administered in this Court, on behalf of himself and all other the legatees of the said and for that purpose that all proper directions may be given and accounts taken. Note. — This form may be varied, according to the circum- stances of the case, where the legacy is an annuity, or specific, or where the plaintiff is not the legatee, but has become enti- tled to or interested in the legacy ; in which case the character in which the plaintiff claims is to be stated. 3. By a residuary legatee, or any of several residuary legatees, of any deceased person, seeking an account of the residue, and payment or appropriation of his share therein. In Chancery. [Lord Chancellor], [Vice-Chancellor of England, or Vice-Chancellor, naming him] , or. [Master of the Rolls] . Between A. B., Plaintiff. C. D., Defendant. The claim of A. B. of the above-named plaintiff. The said A. B. states, that he is the residuary legatee [or one of the residuary legatees] under the will dated the day of of late of who died on the day of and that the above-named defendant C. D. is the executor of the said and that the said C. D. hath not paid to the said A. B. the [or his share of the^ residuary personal estate of the said testator ; the said A. B. therefore claims to have the personal estate of the said administered in this Court, and to have his costs of this suit, and for tliat purpose that all proper direc- tions may be given and accounts taken. Note. — This form may be varied according to the circumstances of the case, where the plaintiff is not the residuary legatee^ ON CLAIMS. 529 but has become entitled to or interested in the residue, in which case the character in which he claims is to be stated. 4. By the person, or any of the persons, entitled to the personal estate of any person who may have died intestate, and seek- ing an account of such personal estate and payment of his share thereof. In Chancery. [Lord Chancellor], [Vice-Chancellor of England, or Yice-Chancellor, naming him"] , or, [Master of the Rolls]. Between A. B., Plaintiff. C. D., Defendant. The claim of A. B. of the above-named plaintiff. The said A. B. states, that he is the next of kin [or one of the next of kin'], according to the statutes for the distribution of the personal estate of intestates, of late of who died on the day of intestate ; and that the said A. B. is entitled to \^or to a share of] the personal estate of the said deceased, and that the said defendant C. D. is the administrator of the personal estate of the said and that the said CD. has not accounted for or paid to the said A. B. the [or the said A. B.^s share of the] per- sonal estate of the said intestate. The said A. B. therefore claims to have the pesonal estate of the said administered in this Court, and to have his costs of this suit ; and for that purpose that all proper directions may be given and accounts taken. 5. By the executor or administrator of a deceased person claiming to have the personal estate of the testator administered under the direction of the Court. In Chancery. [Lord Chancellor], [Vice-Chancellor of England, or Vice-Chancellor, naming him] , or, [Master of the Rolls]. Between A. B., Plaintiff. VOL. I. 45 C- I^-j Defendant. 530 ON CLAIMS. The claim of A. B. of . The said A. B. states, that he is the executor [o?- administrator'] of E. F., late of but now deceased, who departed this life on or about and that he hath possessed the personal estate of the said E. F. to some amount, and that he is willing and desirous to account for the same, and that the whole of the personal estate of the said E. F. should be duly administered in this Court for the benefit of all persons in- terested therein or entitled thereto ; and that C. D. is interested in the said personal estate as one of the next of kin [or residuary legatee] of the said E. F., and the said A. B. claims to have the personal estate of the said E. F. applied in a due course of admin- istration under the direction of this Court, and in the presence of the said C. D. and sucli other persons interested in the said estate as this Court may be pleased to direct, or that the said C. D. may show good cause to the contrary ; and that the costs of this suit may be provided for ; and for these purposes, that all proper direc- tions may be given and accounts taken. 6. By a legal or equitable mortgagee or person entitled to a lien as security for a debt, seeking foreclosure or sale,^ or other- wise to enforce his security. In Chancery. [Lord Chancellor], [Vice-Chancellor of England, or Yice-Chancellor, naming Am] , or, [Master of the Rolls]. Between A. B., Plaintiff. C. D., Defendant. The claim of A. B. of the above-named plaintiff. The said A. B. states, that under or by virtue of an indenture [or other document], dated the day of and made between [par- ties], \_and a transfer thereof made by indenture dated the day of and made between [parties],] the said A. B. is a mortgagee [or an equitable mortgagee] of [or is entitled to a lien ^ The long-debated subject, as to whether an equitable mortgagee is entitled to a sale or a foreclosure, or to a conveyance of the property, subject to the lien, will be found fully treated, and the several cases collected, in the late Mr. Spence's valuable work on the " Equitable Jurisdiction of the Court of Chancery " ; and now see 15 & 16 Vict. c. 86, § 48, ante, p. 198. ON CLAIMS. 531 upon] certain freehold property [or copyhold, or leasehold, or other property, as the case may be], therein comprised, for securing the sum of pounds and interest, and that the time for payment thereof has elapsed ; and that the above-named C. D. is entitled to the equity of redemption of the said mortgaged premises [or the premises subject to such lieri], and the said A. B. therefore claims to be paid the said sum of pounds and interest, and the costs of this suit, and in default thereof he claims to foreclose the equity of redemption of the said mortgaged premises [or to have the said mortgaged premises sold, or to have the premises sub- ject to such lien sold, as the case may be"], and the produce thereof applied in or towards payment of his said debt and costs, and for that purpose to have all proper directions given and accounts taken. 7. By a person entitled to the redemption of any legal or equitable mortgage, or any lien, seeking to redeem the same. In Chancery. [Lord Chancellor], [Vice-Chancellor of England, or Vice-Chancellor, naming him] , or, [Master of the Rolls]. Between A. B., Plaintitf. C. D., Defendant. The claim of A. B. of the above-named plaintiff. The said A. B. states, that under or by virtue of an indenture [^or other document], dated the day of and made between \_par- ties], [^and the assurances hereinafter mentioned, that is to say, an indenture dated the day of the ivill of dated the day of ] , the said A. B. is entitled to the equity of redemption of certain freehold property [or copyhold, or leasehold, or other property, as the case may be] therein comprised, which was originally mortgaged \or pledged] for securing the sum of pounds and interest ; and that the above-named defendant C. D. is now, by virtue of the said indenture, dated the day of \ayid of subsequent assurances] , the mortgagee of the said property \_or holder of the said lien], and entitled to the prin- cipal money and interest remaining due upon the said mortgage [or lien] ; and he believes that the amount of principal money 632 ON CLAIMS. and interest now due upon the said mortgage [or lien] is the sum of pounds, or thereabouts ; and that the said A. B. hath made or caused to be made an application to the said C. D. to re- ceive the said sum of pounds, and any costs justly payable to him, and to reconvey to the said A. B. the said mortgaged prop- erty [or property subject to the said lien], upon payment thereof, and of any costs due to him in respect of the said security, but that the said CD. has not so done ; and therefore the said A. B. claims to be entitled to redeem the said mortgaged property [or property subject to the said lien] , and to have the same reconveyed [or delivered up] to him, upon payment of the principal money and interest and costs due and owing upon the said mortgage [or lien], and for that purpose to have all proper directions given and accounts taken. 8. By a person entitled to the specific performance of an agree- ment for the sale or purchase of any property, seeking such specific performance. In Chancery. [Lord Chancellor], [Vice-Chancellor of England, or Vice-Chancellor, naming- him] , or, [Master of the Rolls] . Between A. B., Plaintiff. C. D., Defendant. The claim of A. B. of the above-named plaintiff. The said A. B. states, that by an agreement dated the day of and signed by the above-named defendant C. D., he the said C. D. contracted to buy of him [or to sell to him] certain freehold property [or copyhold, leasehold, or other property, as the case may be], therein described or referred to, for the sum of pounds ; and that he has made or caused to be made an application to the said C. D. specifically to perform the said agree- ment on his part, but that he has not done so, and the said A. B. therefore claims to be entitled to a specific performance of the said agreement, and to have his costs of this suit ; and for that purpose to have all proper directions given. And he hereby offers specifically to perform the same on his part. ON CLAIMS. ' 533 9. By a person entitled to an account of the dealings and trans- actions of a partnership dissolved or expired, seeking such ac- count. In Chancery. [Lord Chancellor], [Vice-Chancellor of England, or Vice-Chancellor, naming him] , or, [Master of the Rolls]. Between A. B., Plaintiff. CD., Defendant. The claim of A. B. of the above-named plaintiff. The said A. B. states, that from the day of down to the day of he and the above-named CD. carried on the business of in copartnership, under certain articles of co- partnership, dated the day of and made between [par- ties], [or without articles, as the case may be] ; and he saith that the said partnership was dissolved [or expired, as the case mat/ be] on the day of and he claims an account of the part- nership dealings and transactions between him and the said C D., and to have the affairs and business of the said partnership wound up and settled under the direction of this Court, and for that pur- pose that all proper directions may be given and accounts taken. 10. By a person entitled to an equitable estate or interest, and claiming to use the name of liis trustee in prosecuting an action for his own sole benefit. In Chancery. [Lord Chancellor], [Vice-Chancellor of England, or Vice-Chancellor, naming- him] , or, [Master of the Rolls] . Between A. B., Plaintiff. C D., Defendant. The claim of A. B. of the above-named plaintiff. The said A. B. states, that under an indenture dated the day of and made between [parties], he is entitled to an equitable estate or interest in certain property therein described or referred 45* 534 ON CLAIMS. to, and that the above-named defendant is a trustee for him of such property, and that being desirous to prosecute an action at law against in respect of such property, he has made or caused to be made an application to the said defendant to allow liim to bring such action in his name, and has offered to indemni- fy him against the costs of such action, but that the said defend- ant has refused or neglected to allow his name to be used for that purpose ; and the said A. B. therefore claims to be allowed to prosecute the said action in the name of the said defendant, and hereby offers to indemnify him against the costs of such action. 11. By a person entitled to have a new trustee appointed ^ in a case when there is no power in the instrument creating the trust to appoint new trustees, or when the power cannot be exercised, and seeking to appoint a new trustee. In Chancery. [Lord Chancellor], [Yice-Chancellor of England, or Vice-Chancellor, naming hini\ , [Master of the Rolls]. , Between A. B., Plaintiff. C. D., Defendant. The claim of A. B. of the above-named plaintiff. The said A. B. states, that under an indenture dated the day of and made between [parties]^ [or will of or other document, as the case may be'], he the said A. B. is interested in certain trust property therein mentioned or referred to, and that the above-named defendant CD. is the present trustee of such property [or is the real or personal representative of the last sur- viving trustee of such property, as the case may be] ; and that there is no power in the said indenture [or will or other document] to appoint new trustees \_or that the power in the said indenture [or other document] to appoint new trustees cannot be executed] ; and the said A. B. therefore claims to have new trustees appointed of the said trust property in the place of [or to act in conjunction with] the said CD. ^ Applications of tliis kind can now be made more easily under the Trustee Act. ON CLAIMS. 535 SCHEDULE (C.) 1. Form of Order for Payment of a Debt or Legacy. In Chancery. [Lord Chancellor], [Vice-Chancellor of England, or Vice-Chancellor, naming him'] , or, [Master of the Rolls] . Date. Between A. B., Plaintiff. C. D., Defendant. Upon motion this day made unto this Court by Mr. , of counsel for the plaintiff, and upon hearing Mr. , of counsel for the defendant [or npon reading a certificate of an appearance having been entered by the defendant'], [or vpon hearing an affi- davit of service upon the defendant of the writ of summons issued in this cause], and upon reading the claim filed in this cause on the day of [and an affidavit of filed in this cause], [or the defendant by his counsel admitting assets of the testator or intestate in the said claim named], this Court doth order that the defendant do, within a month after service upon him of this order, pay to the plaintiff the sum of <£ together with interest thereon, at the rate of £ per cent per annum, from the day of to the time of such pay- ment, together with the costs of this suit, to be taxed by the Tax- ing Master in rotation. 2. Form of Order on Executor or Administrator to account on Claim by a Creditor of Testator or Intestate. In Chancery. [Lord Chancellor], [Vice-Chancellor of England, or Vice-Chancellor, naming him] , or, [Master of the Rolls]. Date. Between A. B., Plaintiff. C. D., Defendant. 536 ON CLAIMS. Upon motion, &c. [^as in Form No. 1], this Court doth declare, that all persons who are creditors of the said testator or intestate are entitled to the benefit of this order: And it is ordered, that it be referred to the Master of this Court in rotation to take an ac- count of what is due to the plaintiff, and all other the creditors of deceased, the testator [or intestate^ in the plaintiff's claim named, and of his funeral expenses : And it is ordered, that the Master do take an account of the personal estate of the said testator [or intestate^ come to the hands of the said defendant, his executor lor administrator~\, or to the hands of any other person or persons by his order or for his use : And it is ordered, that the said testator's [or intestate s] personal estate be applied in pay- ment of his debts and funeral expenses in a due course of admin- istration. And this Court doth reserve the consideration of all further directions, and of the costs of this suit, until after the said Master shall have made his report. 3. Form of Order to account on Claim hy a Legatee. In Chancery. [Lord Chancellor], [Vice-Chancellor of England, or Yice-Chancellor, naming him'\ , or, [Master of the Rolls]. Date. Between A. B., a legatee of deceased. Plaintiff. C. D., Defendant. Upon motion, ) ; 2 Eq. Drafts, 81; Edwards on Parties, 275; Story Eq. PI. (3d ed.) § 543, note (4). A demurrer for want of parties must show who are the proper parties ; not indeed by name, for that might be impos- sible ; but in such manner as to point out to the plaintiff the objection to his bill, and enable him to amend by adding the proper parties. Mitford Eq. PI. by Jeremy, 180, 181 ; Attorney-General v. Poole, 4 My. & Craig, 17 ; Story Eq. PI. § 543 ; ante, 333 ; Robinson v. Smith, 3 Paige, 222. It has, however, been held, that upon a demurrer to a bill for want of Equity, the objection, that the bill is defective for want of parties, may well be taken. Yernon v. Vernon, in Chancery (England), Feb. 1837, cited Story Eq. PI. § 543 ; (3d ed.) note (4). So the objection may he taken in the same way, if persons are improperly made plaintiffs. Gething v. Vigurs, before the V. Chancellor of England, Nov. 1836, cited Story Eq. PI. ubi supm. ' Lord Red. 180. * Ante, pp. 341, 342. See Story Eq. PI. § 530-540; Graves v. Fresh, 9 Gill & John. 280; Bryan v. Blythe, 4 Blackf. 331 ; Coe v. Turner, 5 Conn. 86 ; Mulock V. Mulock, 1 Edw. 14; Thurman v. Shelton, 10 Yerger, 383. A demurrer to a bill for multifariousness should be taken before the case comes to the appellate Court, Wellborn v. Tiller, 10 Alabama, 305. ' East India Company v. Coles, 3 Swanst. 142, n. See Dimmock v. Bixby, 20 Pick. 368 ; Gibbs v. Clagett, 2 Gill & John. 14 ; Boyd v. Hoyt, 5 Paige, 65 ; White V. White, 5 Gill, 359. • If the lapse of the period of limitation appears with certainty on the face of the bill, the objection may be taken by demurrer. Deloraine v. Browne, 3 Bro. OF THE DIFFERENT GROUNDS OF DEMURRER. 585 proper ground for a plea, and not for a demurrer ; and in Gregory V. Molesworth/ Lord Hardwicke refused to allow a demurrer of this nature, alleging, as his reason, that several exceptions might take it out of the length of time, as infancy or coverture, which the party should have the advantage of showing, but whicii cannot be done if demurred to. This, however, can hardly be a sufficient reason for the distinction in this case between a plea and a demur- rer, as the plaintiff, if he has any reason to allege to take his case out of the bar, arising from the length of time, may show it by his bill ; and it appears to be clearly the rule of the Court, that the Statute of Limitations, or ol)jections in analogy to it, upon tlic ground of laches, may be taken advantage of by way of demurrer as well as by plea.^ It is to be observed, that, previously to Lord C. C. (Perkins's ed.) 633, Mr. Belt's uote (1), 436, Mr. Eden's note (7), and cases cited; Wisner v. Barnet, 4 Wash. C. C. 631 ; Dunlap v. Gibbs, 4 Yerger, 94; Foster v. Hodgson, 19 Ves. 180; Hoare v. Peck, 6 Simons, 51 ; Story Eq. PI. § 484, 751, and notes; Hardy v. Reeves, 4 Sumner's Vesey, 466, note (b) ; Freake v. Cranfeldt, 3 My. & Cr. 499; Tyson v. Pole, 3 Younge & Coll. 266; Humbert v. Rector, &c.. Trinity Church, 7 Paige, 195; Van Hook v. Whitlock, 7 Paige, 373 ; S. C. 24 Wendell, 587 ; Coster v. Murray, 5 John. Ch. 521 ; Wal- ler V. Demint, 1 Dana, 92. See M'Dowl vJ Charles, 6 John. Ch. 132. ^ 2 Ves. 109. See also Aggas v. Pickerell, 3 Atk. 225. * Suits in Equity are not within the words of the stat. 21 Jac. I. c. 16; but Courts of Equity have held themselves bound by it in respect of all legal titles and demands. Hovenden v. Lord Annesley, 2 Sch. & Lef. 630, 631 ; Hony v. Hony, 1 S. & S. 568. And in respect of equitable titles and demands, they have been influenced in their determinations by analogy to it. Bond v. Hopkins, 1 Sch. & Lef. 428; Hovenden v. Lord Annesley, ubi supra; Stackhouse v. Barns- ton, 10 Ves. 466 ; Ex parte Dewdney, 15 Ves. 496 ; Beckford v. Wade, 17 Ves. 97 ; Marquis of Cholraondeley v. Clinton, 2 J. & W. 161 ; 2 J. & W. 192, S. C. By the Stat. 3 & 4 Will. IV. c. 27, however, suits in E(|uity for certain purposes, and, amongst others, for the redemption of mortgages, are expressly brought within its words. Sects. 24, 25, 26, 27, 40, 41, and 42. And where it appears upon the face of the bill that the equity of the plaintiff is barred by this statute, there does not seem to be any reason why the objection should not to be taken by demurrer. Barapton v. Birchall, 5 Beav. 67. See Acherley v. Roe, 5 Sumner's Vesey, 565, Perkins's note (b), and cases cited, 573, note (a), and cases cited; Stockhouse v. Barnston, 10 Sumner's Ve- sey, 453, Perkins's notes (c) and (d), and cases cited; Hardy v. Reeves, 4 Sum- ner's Vesey, 465, notes (a) and (h) ; Mitford Eq. PI. by Jeremy, 272, 273, (5th Am. ed.) note (1) and cases cited ; Pierson v. David, 1 Clarke (Iowa), 23 ; Sub- lette V. Tinney, 9 Cal. 428; Bangs v. Hall, 2 Pick. (2d ed.) 372, note (1), and cases cited. In Massachusetts, the Statute of Limitations operates, in cases where it applies, ex propria vigore, in Equity as well as at Law. Farnam v. Brooks, 9 586 DEMURRERS. Hardwicke's time, demurrers had been allowed to bills to redeem mortgages on account of tlie length of time ; ^ and that, since that period, in Beckford v. Closc,^ Lord Kcnyon, M. R., upon an ap- peal, confirmed a decision which had been made by the Court in Jamaica, allowing a demurrer to a bill for redemption, on the ground of length of time. That case was cited before Lord Alvan- Icy, M. R., in Hardy v. Reeves,^ who said he had no doubt that a demurrer on the ground of length of time to a bill for redemption would be good, if the bill was so framed as to state such a case.* Pick. 243; Johnson v. Ames, 11 Pick. 182; Bowman r. Wathen, 1 IIow. U. S. 189. In Kentucky, the Statute of Limitations is a bar in Equity. M'Dowell v. Heath, 3 A. K. Marsh, 223; Beckenbridge v. Churchill, 3 J. J. Marsh. 15. It seems, however, that it does not apply in totidem verbis, but has been adopted as reasonable and consistent. Grain v. Prather, 4 J. J. Marsh. 7 7. The principles of the Statute of Limitations, as applied to suits in Equity, are recognized by the Revised Statutes of New York. Before such recognition, they received the same application. Kane v. Bloodgood, 7 John. Ch. 90 ; Stafford v. Bryan, 1 Paige, 239 ; Bertine v. Varian, 1 Edw. 343. See 2 Rev. Stat. N. Y. 301 ; and Van Hook V. Whitlock, 3 Paige, 409. In New York, aside from the Revised Statutes, the bar would seem to operate by the direction of the Court. Murray v. Coster, 2 John. R. 583 ; Arden v. Arden, 1 John. Ch. 316. See the same doctrine held in Elmendorf i;. Taylor, 10 Wheaton, 152; Coulson v. Walton, 9 Peters, 82; and see Robinson v. Hook, 4 Mason, 150. In Connecticut, where a delay has been such as to be a bar at Law, it will be so in Equity. Banks v. Judah, 8 Conn. 145. The same principle exists in the Courts of the United States. Elmendorf ' v. Taylor, 10 Wheaton, 152 ; Miller v. M'Intyre, 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. Whether this can apply to cases purely of equitable jurisdiction, see Robinson v. Hook, 4 Mason, 150; Murray v. Coster, 2 John. 583; Kane v. Bloodgood, 7 John. Ch. 90; Armstrong v. Campbell, 3 Yerger, 232; Bigelow r. Bigelow, 6 Ohio, 97. In case of a direct trust, no length of time bars the claim between the trustee and cestui que trust. Cook v. Williams, 1 Green Ch. 209; Baker v. Whiting, 3 Sum- ner, 476; Armsti'ong 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 {h) to Acherley v. Roe, 5 Sumner's Vesey, 573. * Sanders v. Hoare, 1 Ch. Rep. 184; Frazer v. Moore, Bunb. 54; Jenner r. Tracev, 3 P. AVms. 287. « Cited 4 Ves. 476. ' 4 Ves. 466 ; Deloraine v. Browne, 3 Bro. C. C. 633 ; Hovenden v. Lord An- nesley, 2 Sch. & Lef 607. * A demurrer would undoubtedly lie to a bill for the redemption of a mort- gage, after a great length of time had elapsed, if the bill were so framed as to present the objection without any attendant circumstances to obviate it. Story Eq. PI. § 503, and cases in note. As to the length of time, which will bar a re- OF THE DIFFERENT GROUNDS OF DEMURRER. 587 The principle of allowing length of time to be taken advantage of by demurrer as well as by plea has since been acknowledged, and acted upon by the Court in Foster v. Ilodgson,^ where a demurrer to a bill for an account was allowed, on the ground that no de- mand was stated by the bill to have been made for twelve years ; and in Hoare v. Peck,^ a similar demurrer was allowed, it appear- ing upon the face of the bill that the cause of suit did not arise within six years before the filing of it. It is to be remarked here, that all the above cases were decided upon the ground of their coming within the Statute of Limitations, or the rules of the Court which have been adopted by analogy to that statute, and that therefore there was a positive limitation of time upon which the Court could proceed ; where, however, there is no such positive limitation of time, the question, whether the Court will hiterfere or not, depends upon whether, from tlie 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.^ A similar question has sometimes arisen concerning the Statute of Frauds, as to whether objections under that Act should be taken by plea or de- murrer. According to Lord Langdale, M. R., in Field v. Hutch- inson,^ there can be no 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, i>ecause it might appear clear that the plaintiff was not entitled to the relief he asked ;5 it is, however, more usual to plead this statute, as it is seldom that the bill discloses everything necessary for the defence. demption of a mortgage, see Acherley v. Roe, 5 Sumner's Vesey, 573, Perkins's note (a), and cases cited; Hardy v. Reeves, 4 Sumner's Vesey, 46G, note (a) ; Trash v. White, 3 Bro. C. C. (Perkins's ed.) 291 ; note (a), and cases cited; Phillips V. Sinclair, 20 Maine, 269. Ante, 585, note. In reference to the length of time which will bar a bill for an account, see Acherley v. Roe, 5 Sumner's Vesey, 565, Perkins's note (6), and cases cited ; Stackhouse v. Barnston, 10 ib. 453, note (r/), and cases cited. * 19 Ves. 180. * 6 Sim. 51. " Cuthbert v. Creasy, Mad. & Geld. 189 ; Ld. Raym. 213. * 1 Beav. 599 ; see also Howard v. Okeover, 3 Sw. 421, n. * Story Eq. PI. § 503 ; Meach v. Stone, 1 D. Chip. 182. In a suit for specific performance of a contract in relation to land, if the agreement appears in the bill to be by parol, and no facts are alleged to take the case out of the Statute of Frauds, the defendant may demur to the bill. Cozine v. Graham, 2 Paige, 177. 588 DEMURRERS. With respect to demurrers bj reason of the deficiency of the bill, in matters of form, the grounds upon which they may be put in have been so amply stated before, that all which is necessary in this place is summarily to recall them to the reader's attention.^ They are as follows : — 1. Because the plaintiff's place of abode is not stated.2 2. Because the facts essential to the plaintiff's right, and within his own knowledge, are not alleged positively.^ 3. Be- cause the bill is deficient in certainty.* 4. Because the plaintiff does not by his bill offer to do equity where the rules of the Court require that he should do so,^ or to waive penalties or forfeitures where the plaintiff is in a t-ituation to make such waiver.^ To these may be added, 5, the want of counsel's signature to the bill ;^ and 6, the absence of the proper affidavit in those cases in which the rules of the Court require that the plaintiff's bill should be ac- companied by such an instrument.^ The grounds of demurrer before pointed out apply to the relief prayed by the bill, and not to the discovery further than as it is in- cidental to the relief.^ It has, however, been stated that there are cases in which a defendant may demur to the discovery or decline to answer the interrogatories filed for his examination. Before the most recent changes in the practice of the Court it had been estab- lished by the 38th Order of August, 1841, that " a defendant shall be at liberty by answer to decline answering any interrogatory, or » Story Eq. PI. § 528, 529, and notes ; Mitford Eq. PI. by Jeremy, 206. A demurrer AviU not hold to an irregularity of practice in regard to the bringing or fiiintr of a bill, suggesting matters of fact which do not otherwise appear by the bill.*^ Tallmadge v. Lovett, 3 Edw. 5C3. - Ante, pp. 362, 363. See Howe v. Harvey, 8 Paige, 73. It is not a ground of demurrer that the plaintiff omits to state his occupation, or addition. Gove v. Pettis, 4 Sandf Ch. R. 403. 2 Ante, p. 365. ' lb- p. 388. « lb. p. 373. • lb. p. 300. ' lb. p. 307. See Graham v. Elmore, Harring. Ch. 265. But in Gove v. Pet- tis, 4 Sandf. Ch. 403, it was held, that a demurrer could not be taken for an omission of the signature of the solicitor or counsel to the bill, but that it is a fit subject for a motion to take the bill from the files of the Court. 8 Ante, p. 395. Gove v. Pettis, 4 Sandf. Ch. 403. The defendant is not bound to look beyond the copy of the bill, whicli is served on his solicitor; and if that does not contain the reipii/ite alHdavit or verification to give the Court jurisdiction of the case, he may demur to the bill on that ground. Lansing v. Pine, 4 Paige, 364. » A demurrer will be allowed to a bill of discovery in aid of the defence to a suit in 9. foreign Court. Bent v. Young, 9 Simons, 180. But see contra, Mitchell V. Smith, 1 Paige, 287. OF THE DIFFERENT GROUNDS OF DEMURRER. 589 part of an interrogatory, from answering which he miglit have pro- tected himself by demurrer ; and that he shall be at liberty so to decline, notwithstanding he shall answer other parts of the bill, from which he might have protected himself by demurrer." Now, as we have seen all discovery is elicited from the defendant by an- swers to written interrogatories, which constitute a separate docu- ment from the bill, the proper course therefore will be, if the de- fendant objects to any of the discovery sought from him, to answer stating his objection to further discovery, and the validity of his ob- jection will be tried by the old rules concerning demurrers to dis- covery. Demurrers to discovery have chiefly occurred where there was something in the situation of the defendant which rendered it im- proper for a Court of Equity to compel a discovery, either because the discovery might subject the defendant to pains and penalties, or because it might subject him to some forfeiture, or to something in the nature of a forfeiture.^ A defendant may also object to any part of the discovery sought by the bill which is immaterial to the relief prayed ; he may object to a disclosure of matters which are the subject of professional confidence, or which may lead to a dis- closure of his own title in cases where there is not sufficient privity between him and the plaintiff to warrant the latter in requiring a disclosure of it. I. We have before seen that in cases where the plaintiff" is the person who is entitled to the advantage of the penalty ,2 or of the forfeiture to which the defendant would render himself liable by making the discovery sought, he may obviate the objection 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 plain- tiff should sue him for the penalty, or endeavor to take advantage 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 defend- ant from the consequence of his discovery, the objection will hold.* For it is a general rule, that no one is bound to answer so as to sub- » The King of the Two Sicilies v. Wilson, 1 Sim. N. S. 301. » Ante, p. 390. » Ibid. * Story Eq. PL § 575 ; March v. Davison, 9 Paige, 580 ; Mitford Eq. PI. by Jeremy, 194, 195 ; 2 Story Eq. Jur. § 1494. VOL. I. 50 690 DEMURRERS. ject himself to punishment, in whatever manner that punishment may arise, or whatever may be the nature of that punishment, whether it arises by the Ecclesiastical Law or by the 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 maij do so.^ If, therefore, a bill charges anything which, if confessed, may subject the defendant to a crim- inal prosecution,'^ or to any particular penalties, as maintenance,* champerty,^ simony,^ or subornation of perjury,'^ the defendant may object to the discovery.^ In the application of this principle it has ^ Brownsword v. Edwards, 2 Ves. 243, 244 ; Harrison v. Southcote, 1 Atk. 528, 539. See also the cases there referred to, notis, and Parkhurst v. Lowten, 2 Swanst. 214; Hare on Discovery, 131, 132, where the cases are classed; Wig- ram, Discovery (1st Am. ed.), 82, 83, 193, § 127, 134, 270-272; Brownell w. Curtis, 10 Paige, 213 ; Livingston v. Harris, 3 Paige, 528 ; Patterson v. Patter- son, 1 Hayw. 167; Wolf v. Wolf, 2 Harr. & Gill, 382; Lambert v. People, 9 Cowen, 578 ; Northup v. Hatch, 6 Conn. 361 ; Leggett v. Postley, 2 Paige, 599 ; Story Eq. PI. § 521 - 524, 579 - 598 ; United States v. Twenty-Eight Packages, &c., Gilpin, 306 ; Butler v. Catlin, 1 Root, 310 ; Leigh v. Everhart, 4 Monroe, 381 ; Ocean Ins. Co. v. Field, 2 Story C. C. 59;' Adams v. Porter, 1 Gushing, 170. But a party is bound to make discovery, although his answer may subject him to the loss of legal interest. Taylor v. Mitchell, 1 How, (Miss.) 596. ■ Story Eq. PI. § 5 75. * E. I. Company v. Campbell, 1 Ves. 246 ; Chetwynd v. Lindon, 2 Ves. 450 ; Cartwriwht v. Green, 8 Ves. 404 ; Claridge v. Hoare, 14 Ves. 65 ; Maccallum v. Turton, 2 Y. & J. 183. * Penrice v. Parker, Rep. Temp. Finch, 75 ; Sharp v. Carter, 3 P. Wms. 375 ; Wallis V. Duke of Portland, 3 Ves. 494 ; The Mayor of London v. Ainsley, 1 Anst. 158. * Hartley v. Russell, 2 S. & S. 252. ' Attorney-General v. Sudell, Prec. in Ch. 214 : Parkhurst v. Lowten, 1 Mer. 391,401. ' Selby V. Crew, 2 Anst. 504 ; Baker v. Pritchard, 2 Atk. 388. * In Livingston v. Tompkins, 4 John. Ch. 452, it is said that " there are numer- ous cases establishing the rule that no one is bound to answer so as to subject himself, either directly or eventually, to a forfeiture or penalty, or anything in the nature of a forfeiture or penalty." See the cases there cited ; Story Eq. PI. § 583 ; Northup v. Hatch, 6 Conn. 361 ; Skinner v. Judson, 8 Conn. 528 ; Wolf V. Wolf, 2 Harr, & Gill, 382 ; Livingston v. Harris, 3 Paige, 528 ; United States V. Twenty-Eight Packages, Gilpin, 306. The objection by the defendants, who were officei-s 6f a corporation, that a discovery of the matters stated in the bill may subject the corporation to a forfeiture of its charter, is not sufficient to sup- port a general demurrer to the relief as well as to the discovery sought by the bill. Ptobinson v. Smith, 3 Paige, 222. OF THE DIFFERENT GROUNDS OF DEMURRER. 591 been held, that a married woman will not be compelled to answer a bill which 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 inquired after have an immediate tendency to crim- inate the defendant ; he may equally object to answering the cir- cumstances, though they have not such an immediate tendency .^ A defendant, however, although he is not compellable to answer whether he has committed an act of bankruptcy,^ because by so doing he lays himself open to the penal consequences of the Bank- rupt Law, cannot protect himself from a discovery, whether he traded or not, although before a man can be bankrupt he must be a trader.* It results from 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 turpitude, which may expose him to ecclesiastical censure ; thus it has been held that a defend- ant is not bound to discover whether a child was born out of lawful wedlock,^ nor is an unmarried woman bound to discover whether she and the plaintiff cohabited together.^ It has been held, how- » Cartwright v. Green, 8 Ves. 405 ; ante, p. 143 ; Story Eq. PI. § 519. * E. I. Company v. Campbell, 1 Ves. 247 ; see also Lee v. Read, 5 Beav. 381 ; Paxton V. Douglas, 19 Ves. 225 ; see also Maccallum v. Turton, 2 Y. & J. 183 ; Claridge v. Hoare, 14 Ves. 59 ; Thorp v. Macauley, 5 Mad. 220 ; Short v. Mer- cier, 3 M. & G. 205. A defendant will not be compelled to discover that, which, if answered, would tend to subject him to a penalty or punishment, or which might lead to a criminal accusation, or to ecclesiastical censure. 1 Greenl. Ev. § 451 ; Thorpe v. Macauley, 5 Mad. 229 ; Maccaullum v. Turton, 2 Younge & J. 138 ; Story Eq. PI. § 377, 524, 591-598, 824, 825 ; Leggett v. Postley, 2 Paige, 599 ; Patterson v. Patterson, 1 Hayw. 168 ; Wolf v. Wolf, 2 Harr. & Gill, 382 ; Lube Eq. PI. (Am. ed.) 246 ; MTntyre v. Mancius, 16 John. 592 ; Sloman v. Kelley, 3 Younge & C. 573 ; Ocean Ins. Co. v. Fields, 2 Story C. C. 59 ; Bishop of London v. Fythche, 1 Bro. C. C. (Perkins's ed.) 96 and notes ; Adams v. Por- ter, 1 Gushing, 170. 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 wit- ness is compellable to furnish any one of them against himself," Marshall C. J. 1 Burr's Trial, 244 ; The People v. Mather, 4 Wendell, 229 ; Southard v. Rex- ford, 6 Cowen, 254 ; Bellenger v. The People, 8 Wendell, 595 ; Story Eq. PL § 553. = Story Eq. PI. § 584. * Chambers v. Thompson, 4 Bro. C. C. 434. * Attorney-General v. Duplessis, Parker, 163. ® Franco v. Bolton, 3 Ves. 370. 592 DEMURRERS. ever, that a woman is bound to discover where her child was born, though it might tend to show the child to be an alien.^ It has also been held, that though parties may demur to anything which may expose them to ecclesiastical censure, a defendant cannot 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 defendant 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, notwithstanding his answer may cast a very great degree of reflection on his moral character.^ Therefore, where a defendant demurred to such part of the bill as sought a discovery from her, as to a conspiracy or attempt to set up a bastard child, which she pretended to have by a person who kept her, and was desirous to have a child by her, the demurrer was overruled,* because the conspiracy or attempt to set up the bastard, not being alleged to have been for the purpose of defeat- ing the heir, was not of itself an offence. It is also to be observed, that though a discovery may 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 the discovery sought, he will be compelled to answer.^ It has also been decided, that if a person by his own agreement subjects himself to a payment in the nature of a penalty, if he does a particular act, a demurrer to a discovery of that act will not hold.^ Thus, where a lessee covenanted not to dig loam, clay, sand, or gravel, except for building, on the land demised, with a proviso that if he should dig any of those articles for any other * Attorney-General v. Duplessis, ubi supra. See Story Eq. PI. § 586, and note. 2 Finch V. Finch, 2 Ves. 491. * Per Lord Eldon, in Parkhurst v. Lowten, 1 Mer. 400. A party may be com- pelled to make discovery of any act of moral turpitude, which does not amount to a public offence or an Indictable crime. Story Eq. PL § 595, 596 ; Hare Dis- cov. 142 ; Macauley v. Shackwell, 1 Bllgh, N. S. 121 ; S. C. 2 Russ. 550, note; Glynn v. Houston, 1 Keen, 229. * Chetwynd v. Lindon, 2 Ves. 450. ^ South Sea Company v. Bumsted, 1 Eq. Cas. Ab. 77 ; East India Company v. Atkin, cited ibid. 1 Stra. 168 ; Story Eq. PI. § 589. " Lord lied. 196 ; Morse v. Buckworth, 2 Vern. 443 ; East India Company v. Neave, 5 Ves. 173 ; Story Eq. PI. § 590, and note. OF THE DIFFERENT GROUNDS OF DEMURRER. 593 purpose he should pay to the lessor 20^. a cart-load, and lie after- wards dug great quantities of each article ; upon a bill being filed by the lessor for a discovery of the quantities, waiving any advan- tage of possible forfeiture of the term, a demurrer by the lessee, because the discovery might subject him to a payment by way of penalty, was overruled.^ / It should also be mentioned, that there are cases in winch the defendant has not been allowed to protect himself from discovery, on the ground that he might thereby render himself liable to punishment or penalties, even though he has not entered into any covenant not to demur to such discovery.^ From the observations of Lord Langdale, M. R.,in Lea v. Reed,'^ it would appear that a defendant is so entitled to the protection of of the Court against a discovery tending to establish a criminal charge, that he cannot deprive 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 where the defendants would appear to be guilty of fraud, or of publishing a libel which miglit be the subject of indictment.* So there is no doubt that, in many cases of fraud, Courts of Equity have compelled a discovery where the fraud was of such a nature, that the defendants might have been liable to a criminal prosecution ; as in the cases mentioned by Lord Eldon, in Macau- ley 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 affected with gross frauds, ^ Richards v. Cole, or Brodrepp v. Cole, in Chan. Hil. Vac. 1779 ; see African Company v. Parish, 2 Vern. 244 ; East India Company v. Neave, uii supra. « Green v. Weaver, 1 Sim. 404. See Story Eq. PI. § 589. « 5 Beav. 385. * See Wilmot v. Maccabe, 4 Simons, 263 ; Story Eq. PI. § 597. In March v. Davidson, 9 Paige, 580, Mr. Chancellor Walworth held, that in the case of a libel, the defendant could not be compelled in a bill of discovery to discover anything which would make him liable to an indictment criminally ; but he was compella- ble to discover other facts in support of the action, which would not subject him to a criminal prosecution, or to a penalty or forfeiture. » 1 Bligh, N. S. 96. 50* 594 DEMURRERS. to bring tlie parties into Court, and compel .them to answer, by stating in their bills frauds which 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 compelled to answer bills in Equity for the discovery of such transactions ; in such cases, of course, the defendant cannot protect himself from the discovery required, on the ground that it will render him liable to the penalties imposed by the statute itself. Thus, if a bill is filed for a discovery, as to transactions which would render the defendant liable to penalties under the 7 Geo. IV. c. 8, commonly called the " Stock Jobbing Act," the defendant cannot protect himself from such discovery, because, by the 2d section of the Act, a party is bound to answer any bill that may be filed in a Court of Equity.^ It is to be observed, that the statute 9 Anne, c. 14, ss. 3, 4, for the prevention of gaming, also gives the power of compelling a discovery of money won at play, and takes away the penalty as against a party who shall make discovery and repayment ; but it has been held, that this statute does not extend to compel a dis- covery in aid of an action by a common informer, but only in aid of the party by whom the money is lost, so that a demurrer, on the ground that the discovery will ex'pose the defendant to the penalties of that Act, will lie.^ If a party be liable to a penalty or forfeiture, provided he is * Bancroft v. Wentwortb, 3 Bro. C. C. 11. It is to be observed that, under that Act, the defendant will not be protected from the discovery, unless the case comes within the 1st section of it ; and that the defendants are at liberty to avoid discovery, in cases which come within the 5th and 8th sections. Bullock v. Rich- ardson, 11 Ves. 375 ; Billing v. Flight, 1 Mad. 230 ; Short v. Mercier, 3 M'N. & Gor. 205. The Act does not apply to shares in railway and joint-stock companies. Williams v. Trye, 18 Beav. 366. The New York Revised Statutes, and a statute passed since, have provisions which compel a defendant to make a discovery in many cases where criminal prosecutions and penalties can take place and be ex- ecuted. Thus the defendant must answer to a gaming transaction at the suit of the loser or any other person. 1 Rev. Stat. 664, § 19. As to money illegally re- ceived for brokerage, ib. 709, § 4. As to money and things taken usuriously, ib. 772, § 6. And also in all cases where the defendant is charged with being a party to a fraudulent conveyance. New York Laws of 1833, p. 17. In all these cases, however, the effect of the discovery is specially limited, by statute, to the object oi'the civil proceedings, in regard to which it is sought. Graham on Jurisdiction, 493. - Orm V. Crockford, 13 Price, 376 ; see the case of Sloman v. Kelly, 3 Y. & C. 673 ; and 4 Y. & C. 169. Ex. R. OF THE DIFFERENT GROUNDS OF DEMURRER. 505 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 i)laintiff 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.^ Some of the cases in which objections will be allowed to the dis- covery, on the ground that it will expose the defendant to a forfeit- ure, have been before referred to,^ for the purpose of illustrating the principle, that where it is in the power of a plaintiff 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 plaintiff has no power to waive the effects of the discovery, as in those where he has such power and omits to exercise it. Therefore, where the discovery sought by an information would have subjected the defendants to a quo tvarranto, a demurrer was allowed.^ In like manner, where a legacy was given to a woman, on her marriage, with a condition, that if she married without the consent of the trustees under the will, the legacy was to be forfeited, and a bill was filed against the legatee for a discovery whether any marriage had taken place, in which it was alleged she had married without consent. Lord Hard- wicke allowed the demurrer, as she could not answer to the mar- riage without showing, at the same time, that it was against consent.^ The case of Attorney-General v. Lucas''' was an information un- der the 4 Geo. IV. c. 76. It charged the husband with procuring his marriage with a minor by falsely swearing that the consent of her parent had been given, and prayed the forfeiture of his inter- ^ Parkhurst v. Lowten, 1 Mer. 400 ; Story Eq. PI. § 598 ; Skinner v. Judson, 8 Conn. 528. But see Northup v. Hatch, 6 Conn. 361 ; Lambert v. People, 9 Cowen, 578. * Corporation of Trinity House v. Burge, 2 Sim. 411 ; Williams v. Farrington, 3 Bro. C. C. 38. * Ante, p. 390. * Story Eq. PI. § 580, 581 ; Lansing v. Pine, 4 Paige, 639. ^ Attorney-General v. Reynolds, 1 Eq. Cas. Ab. 131, pi. 10 ; and see Earl of Suffolk V. Green, 1 Atk. 450 ; 1 Smith Ch. Pr. (2d Am. ed.) 203, note (/). * Chauncey v. Fenhoulet, 2 Ves. 265 ; Chauncey v. Tahourden, 2 Atk. 392, S. C; Wrottesley v. Bendish, 3 P. Wms. 236 ; ante, p. 143. ' 2 Hare, 566. 596 DEMURRERS. est in the wife's property, and a settlement of tlie same upon her and lier issue. It was contended that the husband was bound to answer to this information, and that tlie rule that a defendant shall not be compelled to answer with respect to circumstances which might occasion a loss or forfeiture of property, applies only where that forfeiture is to be enforced at Law. Sir J. Wigram, V. C, however, decided that there was no such distinction, and the de- fendant's answer was held sufficient. It is to be remarked, however, that the rule applies only to cases where a« forfeiture, or something in the nature of a forfeiture, may be incurred : where the discovery sought merely extends to the performance of a condition, upon failure in which a limitation over is to take effect, the defendant cannot protect himself from the discovery.^ Objections to the discovery will not prevail where the discovery is of a matter which shows the defendant disqualified from having any interest or title : as whether a person claiming a real estate, under a devise, be an alien, and consequently incapable of tak- ing by purchase.^ A distinction, however, appears to exist, in this respect, between incapacities which are the result of general principles of Law, and those which are imposed by the legislature by way of penalty or forfeiture : thus, before the repeal of the statutes imposing disabilities upon persons professing the Popish religion,^ it was held, that a defendant was not obliged to discover whether he was a Papist or not.^ 11. 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 Court of Equity will not compel him to make any discovery which may hazard his 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 • ^ Cited Chauncey v. Tahourden, ubi supra ; Cliauncey v. Fenhoulet, 2 Ves. 365 ; Lucas V. Evans, 3 Atk. 260 ; Monnins v. Monnins, contra, 2 Ch. Rep. 68 ; Story Eq. PI. § 579, note. * Attorney-General v. Duplessis, Parker, 144. » 11 & 12 Will. 3,0. 4, §4. « Smith V. Read, 1 Atk. 520 ; Harrison v. Southcote, 1 Atk. 528 ; 2 Ves. 389, S. C. ; and see Boteler v. Allington, 3 Atk. 453. * Story Eq. PI. § 603 - 604 a ; Howell v. Ashmore, 1 Stockt. (N. J.) 82. * Lord Red. 199 ; see Glegg u. Legh, 4 Mad. 193. OF THE DIFFERENT GROUNDS OF DEMURRER. 597 consideration, without notice of the defendant's claim.^ Upon the same ground a jointress may, in many cases, demur to a bill filed against her for a discovery of her jointure deed, if the plaintiff is not capable of confirming, or the bill does not offer to confirm, her jointure, and the facts appear sufficiently upon the face of the bill ; though, ordinarily, advantage is taken of this defence by plea.^ ^ Jerrard v. Saunders, 2 Ves. jr. 458 ; Sweet v. Soutlicote, 2 Bro. C. C. 66. The protection which Equity throws around an innocent purchaser, applies not only to bills of relief, but also to bills of discovery. 2 Story Eq. Jur. § 1502. Equity will not take the least step against him, and will allow him to take every advantage which the law gives him ; for there is nothing which can attach itself upon his conscience, in such a case, in favor of an adverse claim. lb. § 1505; 1 ib. § 410 ; Wood V. Mann, 1 Sumner, 507 ; McNeil v. Magee, 5 Mason, 269 ; Vattier V. Hinde, 7 Peters, 252 ; Fitzsimmons v. Ogden, 7 Cranch, 2 ; Boone v. Chiles, 10 Peters, 177 ; Payne v. Compton, 2 Younge & C. 45 7 ; Story Eq. PI. § 603 ; Howell V. Ashmore, 1 Stockt. (N. J.) 82. And so a purchaser, with notice from an innocent purchaser without notice, is entitled to the like protection. For oth- erwise, it would happen that the title of such a bondjide purchaser would become unmarketable in his hands. 2 Story Eq. PI. Jur, § 1503 a; Ib. 410, and cases cited ; Varick v. Briggs, 6 Paige, 323 ; Bennett i;. Walker, 1 West, 130 ; Jack- son V. McChesney, 7 Cowen, 360 ; Jackson v. Henry, 10 John. 185 ; Jackson v. Ewer, 8 John. 573 ; Demarest v. Wyncoop, 3 John. 147. But where a bill is brought for discovery and to set aside a mortgage, which the plaintiff alleges was taken by the defendant with intent to defraud the plaintiff, the defendant cannot by demurring to the bill, avoid answering and disclosing the time when his mort- gage was executed, or whether he claims to hold the land by virtue of it ; or from disclosing, and, if in his power, producing the note which the mortgage pur- ports to secure ; or from stating when, where, and in whose presence, and for what, the note was given ; or from whom the consideration was received, and to whom paid. Burns v. Hobbs, 29 Maine, 273. But in Howell v. Ashmore, 1 Stockt. (N. J.) 82, it was held that when the de- fendant is charged with a fraud, and that he has procured a title fraudulently, and is fraudulently setting it up to defeat the plaintiff, the Court of Chancery may compel such fraud-doer to disclose the fact alleged as a fraud, and all the cir- cumstances attending it, in order that the Court may determine whether those circumstances establish the fraud. And it is a proper object of a bill of discovery to ascertain, in a case where the defendant's title can prevail only upon the ground of his being a bond fide purchaser, without notice of the plaintiff's title, whether lie had such notice, and to call upon him to disclose all the circumstances which may go to probe his conscience upon that point. Howell v. Ashmore, 1 Stockt. (N. J.) 82. * Lord Red. 200 ; Chamberlain v. Knapp, 1 Atk, 52 ; Senhouse v. Earl, 2 Ves. 450 ; see also Leech v. Trollope, ib. 662 ; from which it appears, that a widow is not bound to discover her jointure deed, by her answer (even where the bill offers to confirm it), till the confirmation has been effected; see post. Chapter on Production of Documents. 598 DEMURRERS. III. A defendant is not compellable to discover anything imma- terial to the relief prayed by the bill.^ Upon this ground, upon a bill filed by a mortgagor against a mortgagee to redeem, and seek- ing a discovery whether the mortgagee was a trustee, a demurrer to the discovery was allowed ; for as there was no trust declared upon the mortgage deed, it was immaterial to the defendants whether there was any trust reposed in the defendants or not.^ So where a bill was filed by the lord of a manor, praying, amongst other things, a discovery whether a person applying to be admitted a tenant was a trustee or not, a demurrer by the defendant was allowed ; ^ and where a bill was brought for a real estate, and sought a discovery of proceedings in the Ecclesiastical Court upon a grant of administration, the defendant demurred to that discov- ery, the proceedings in the Ecclesiastical Court being immaterial to the plaintiff's case.* lY. We now come to the consideration of those objections to discovery which are the consequence of the privilege resulting * The plaintiff in a bill must show the materiality of the discovery sought. Lucas V. Bank of Darien, 2 Stew. 280 ; Leggett v. Postley, 2 Paige, 601 ; Mit- ford Eq. PI. by Jeremy, 191, 192; Graham on Jurisdiction, 488-490; Hare, Discov. 8; Wigram, Dis. (Am. ed.) 158 et seq. ; Story Eq. PI. § 554 - 558 ; 1 Smith Ch. Pr. (2d Am. ed.) 204 ; Newkirk v. Willett, 2 Caines Ca. Er. 296 ; Seymour v. Seymour, 4 John. Ch. 409 ; Mclntyre v. Mancius, 3 John. Ch. 47. See Peck v. Ashley, 12 Metcalf, 478. Where the bill seeks relief which the Court has no power to grant, and also seeks a discovery, the defendant may de- mur to the whole bill, if it do not aver that a suit at law is pending, or is about to be brought, in which a discovery may be material. Mitchell v. Green, 10 Met- calf, 101 ; Pease v. Pease, 8 Metcalf, 395. But when the bill seeks for discovery only, and not for relief also, the defend- ant will be compelled to make discovery, if the Court can suppose that it can be in any way material to the plaintiff, in support or defence of any suit, although the bill does not aver that the right which the plaintiff seeks to enforce, cannot be established without the aid of the discovery sought. Peck v. Ashley, 12 Met- calf, 478. This objection of immateriality may be to the whole bill, or to a part of the bill, or to a part only of the interrogatories, or to a particular defendant only. Story Eq. PI. § 568 ; Hare on Discov. 159 - 161. For form of a demurrer for imma- teriality, see Story Eq. PI. § 567; Willis, 475. * Harvey v. Morris, Rep. T. Finch. 214. * Lord Montague v. Dudman, 2 Ves. 396, 398. * Baker v. Pritchard, 2 Atk. 388 ; Hincks v. Nelthorpe, 1 Vern. 204 ; Richards V. Jackson, 18 Ves. 472. OF THE DIFFERENT GROUNDS OF DExMURRER. 599 from professional confidence.^ The privilege conferred by this species of confidence is in reality the privilege of the client.^ The origin of this principle was clearly explained by Lord Brongham in the case of Greenough v. GaskcU,^ where, amongst other things, he observes : " Tliis rule has been adopted out of re- gard to the interests of justice, which cannot be upholdcn, and to the administration of justice, which cannot go on, without the aid of men skilled in jurisprudence, in the practice of the Courts, and in those matters affecting riglits and obligatians which form the subject of all judicial proceedings. If the privilege did not exist at all, every one would be thrown upon his own legal resources ; deprived of professional assistance, a man would not venture to consult any skilful person, or would only dare to tell his counsel- lor half his case." The rule is, however, confined to those cases where the communication has a direct reference to the subject of the dispute, otherwise the parti/ himself has no general privilege or protection ; he is, in other respects, bound to disclose all he knows and thinks respecting his own case ; and the authorities, therefore, are, that he must disclose also the cases he has laid before counsel for their opinion, unconnected with the suit itself.* In the case of Lord Walsingham v. Goodricke,^ Sir J. Wigram, y. C, stated the history of the Law upon this subject, in the fol- lowing terms: — " The first point decided upon this subject was, that communications between solicitor and client pending litiga- tion, and with reference to such litigation, were privileged ; upon 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 after- 1 Wigram, Discov. (1st Am. ed.) 83, 84, pi. 136 ; Story Eq. PI. § 599-602; 1 Greenl. Ev. § 237 et seq., and cases in notes; Gresley Eq. Ev. 278 - 284 ; Brown V. Payson, 6 N. Hamp. 443 ; Foster v. Hall, 12 Pick. 89 ; Wright v. Mayo, 6 Sumner's Vesey, 280 a, and notes ; Aiken v. Kllburne, 27 Maine, 251 ; Brazier V. Fortune, 10 Alabama, 516 ; Beeson v. Beeson, 9 Barr. 279. ' 2 Sugd. Vend. & P. (7th Am. ed.) lOGl et seq., and notes. And it is quite possible that the client may be compelled to disclose the facts when his profes- sional adviser would be bound to withhold them. Story Eq. PI. § 599, note; Pres- ton u. Carr, 1 Younge & Jer. 175, 179; Hare, Discov. 174, 175; Greenlaw u. King, 1 Beavan, 13 7. 2 1 Myl. & K. 98. ♦ 1 Myl. & K. 101. * 3 Hare, 122 ; and see Woods v. Woods, 4 H. 83. 600 DEMUKRERS. wards arose ; and it was held, that the privilege extended to these cases also. A third question then arose with regard to communi- cations 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 protected.^ A fourth point which appears to have called for decision, was the title of a de- fendant 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 le- gal adviser on the subject-matter in question, after litigation com- menced 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 disput- ed the right of the corporation to metage, and that they had in their possession cases which had been prepared with a view to the assertion of their rights against such other parties, in contempla- tion 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 disputes with other persons, were within the privilege ; and I perfectly concur with that decision." The case before him was a bill for specific performance by a purchaser, and during the treaty for the sale and purchase of the estate, but before any dispute had arisen, the defendant, the ven- dor, from time to time consulted his solicitor on the subject, and written communications passed between them. A question arose upon a motion for the production of documents, whether these communications were privileged, regard being had to the circum- stance that they took place before any dispute arose, though with reference to the very subject in respect of which that dispute had since arisen. And he decided chiefly upon the authority of Rad- cliffe V. Fursman,^ that such communications were privileged so far only as they might be proved to contain legal advice or opin- ions, but not otherwise. * Bolton V. Corporation of Liverpool, 3 Sim. 467; S. C. 1 Myl. & K. 88 ; Hughes V. Biddulpli, 4 Kuss. 190 ; Vent v. Taciey, 4 Russ. 193 ; Clagett v. Phil- lips, 2 Y. & C. 82 ; 1 Greenl. Ev. § 240 ; Story Eq. PI. § 600 ; Beltzhoover v. Blackstock, 3 Watts, 20 ; Foster v. Hall, 12 Piek. 89, 92, 98, 99. « 1 Y. & C. 631. » 2 Bro. P. C. 514. This case has been freciuently disapproved of; and see the observations of V. C. Wood on Lord Walsingham v. Goodricke in IManser v. Dix, 1 Kay & Johns, 451. OF THE DIFFERENT GROUNDS OF DEMURRER. 601 It may be observed, that there does not seem to be any differ- ence in principle between cases stated for opinion, and otlier com- munications of matters of fact between a client and liis professional advisers.^ The privilege is, however, confined to legal advisers, for it lias 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, he is bound to dis- cover letters which have passed between them with reference to their defences.^ With regard to the privilege arising from professional confidence, as it respects the legal advisers, that is of a more extended nature : — " As it regards them, it does not appear that the protection is qualified by any reference to proceedings pending or in contem- plation.^ If touching matter that comes within the ordinary scope of professional employment, either from a client or on his account and for his benefit in the transactions of his business ; or, which amounts to the same thing, if they commit to paper, in the course of their employment, on his behalf, matters which they know only through their professional relation to their client, they are not only justified in withholding such matters, but bound to withhold them, and will not be compelled to disclose the information, or produce the papers, in any Court of Law or Equity, either as a party or as a witness." ^ It would be most mischievous, said the learned Judges in the Common Pleas,^ if it could be doubted whether or not an attorney consulted upon a man's title to an estate was at liberty to divulge a flaw.^ 1 3 Hare, 129. * Whitbread o. Gurney, 1 Younge, 541 ; Goodall v. Little, 1 Situ. N. S. 155. 3 Foster v. Hall, 12 Pick. 89, 93 et seq. ; 1 Greenl. Ev. § 240 ; Story Eq. PI. § 600 ; Wilson v. Troup, 7 John. Ch. 25, 38, 39 ; Beltzhoover v. Blackstock, 3 Watts, 20 ; March v. Ludlum, 3 Sand. Ch. 35 ; Moore v. Bray, 10 Barr, 519 ; 2 Sugd. Vend. & P. (7th Am. ed.) 10G3. * Lord Brougham, in Greenough v. Gaskell, 1 M. & K. 101. ^ Brard v. Ackerman, 2 Brod. & Bing. 6. » Greenough v. Gaskell, 1 M. & K. 102. Story Eq. PI. § 600, and note. The attorney is not bound to produce title-deeds, or other documents, left with him by his client for professional advice ; though he may be examined to the fact of their existence, in order to let in secondary evidence of their contents, which must be from some other source than himself 1 Greenl. Ev. § 241 ; Wright v. Mayer, 6 Sumner's Vesey, 280, note (a) ; Bank of Utica v. Mersereau, 3 Barb. Ch. R. VOL. I. 51 602 DEMURRERS. In the case of Holmes v. Baddeley,^ the subject was brought prominently before the attention of Lord Lyndhurst, and the re- sult seems to be that letters written or cases stated for the opinion of counsel by a party or his solicitor, with a view to a suit then in contemplation, are privileged from production, not only in that suit but in any subsequent litigation with third parties respecting the same subject-matter, and involving the question to which such letters and cases relate. It may be mentioned also, that in cases where opinions of counsel have been taken by a trustee on behalf of a cestui que trust, and paid for out of the trust-fund, tliere is 110 doubt that the cestui que trust is entitled to call for their pro- duction ; but opinions taken in the party's own behalf, and ad- versely to another, would be protected. In the case of Woods v. Woods,^ which was a suit by a cestui que trust to set aside a purchase of the trust property made thirty years before by the trustee, the trustee insisted on the knowledge of the transaction, and long acquiescence therein by the cestui que trust, and in his answer to a cross bill the cestui que trust admitted that he had an opinion of counsel on his right, which he had taken many years before. Sir James Wigram, V. C, held the opinion to be a privileged communication, and refused to order its production. The case of Steele v. Stewart,^ which occurred before Lord Lyndhurst, exhibits another instance of the application of the general rule concerning professional privilege. There the dis- tance of the place where the evidence had to be collected was such that the defendant's solicitor had to employ an agent. It was contended that communications between the party or his solicitor and an unprofessional agent were not protected, and that neither authority nor policy authorized the extension of the privi- lege to such a case. Both Sir L. Shad well and Lord Lyndhurst held, that the letters in question were privileged, and Lord Lynd- hurst said he did not consider this an extension of an admitted privilege. He considered the case as coming within the same principle on which the communication of the solicitor himself would, under similar circumstances, be privileged. It is to be observed, that although the general rule is, as laid 528 ; Davis v. Waters, 9 M. & W. 608 ; 2 Sugd. Vend. &. P. (7th Am. ed.) 1062, and note. 1 1 Ph. 476. « 4 Hare, 83. " 1 Ph. 471. OF THE DIFFERENT GROUNDS OF DEMURRER. 603 down in the above case, that a counsel or solicitor cannot be com- pelled, at the instance of a third party, to disclose matters which have come to his knowledge in the conduct of professional busi- ness for a client, even though such business had no reference to legal proceedings, either existing or in contemplation, there is no doubt that the privilege will be excluded, where the communica- tion is not made or received professionally, and in the usual course of business.^ Tlius, a communication made to an attorney or solicitor, in the character of steward, either before the attorney or solicitor was employed as such,^ or after his employment has ceased, will not be protected from disclosure : ^ and so where an attorney had been consulted by a friend, because he was an at- torney, yet he refused to act as such,* and was, therefore, applied to only as a friend ; ^ or where the matter communicated was not in its nature private, and could in no sense be termed the subject of a confidential disclosure ; ^ or where the thing to be disclosed has no reference to the professional employment, though disclosed while the relation of attorney and client subsisted ; 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 com- mitted to him in his capacity of attorney, or which in that capacity alone he came to knowJ ' Greenough v. Gaskell, 1 M. & K. 102; see also Desborough v. Rawlins, 3 M. & C. 515 ; Carpmael v. Powys, 1 Phil. 687, * Cutts V. Pickering, 1 Ventris, 196. ' Wilson V. Rastall, 4 T. R. 753 ; Story Eq. PI. § 602 ; 1 Greenl. Ev. § 244. * K a party has been requested to act as solicitor, and the communication has been made under the impression that the request has been acceded to, it is priv- ileged. Smith V. Yell, 2 Curtis, 66 7. * AYilson V. Rastall, 4 T. R. 753. ° Doe V. Andrews, Cowp. 846 ; Sandford v. Remington, 2 Ves. jun. 189; and Bunbury v. Bunbury, 2 Beav. 173 ; and see Rex v. Watkinson, 2 Stra. 1122. ' Morgan v. Shaw, 4 Mad. 56, note (f) ; Desborough v. Rawlins, 3 M. & C. 515. The person, called as a witness, or made defendant to a bill, must have learned the matter in question only as counsel, or attorney, or solicitor, and not in any other way. If, therefore, he were a party to the transaction, and, espe- cially, if he were a party to a fraud (and the case may be put of his becoming an informer, after being engaged In a conspiracy,) that is, if he were acting for him- self, although he might be employed for another, he would not be protected from the discovery ; for in such case his knowledge would not be acquired solely by his being employed professionally. Story Eq. PL § 601 ; 1 Greenl. Ev. § 242, 244. An attorney may be compelled to disclose the name of the person by whom he 604 DEMURRERS. The privilege will also be excluded with regard to commiiica- tioiis to members of other professions than the Law ; it has, there- fore, been held not to extend to physicians or medical advisers,^ nor will it extend to mere agents or stewards ; ^ it, however, ap- plies to scriveners ; ^ and also to counsel.* It has been held, that the privilege will not apply to one who has been consulted con- fidentially as an attorney, when in fact he was not one.^ A person who acts as interpreter*^ or agent '^ between an at- torney and his client stands in the same confidential position, and the rule has also been held to apply to the clerk of the counsel or solicitor consulted,^ and it appears that the privilege extends 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 ap- pearance at that time; his client's handwriting; and various other matters, for an enumeration of which, see 2 Sugd. Vend. & P. (7th Am. ed.) 1063, and notes; 1 Greenl. Ev. § 245. So if an attorney put his name to an instrument as a witness, his signature binds him to disclose all that passed at the time, respecting the execution of the instrument. Bank of Utica v. Mersereau, 3 Barb. Ch. R. 528 ; 2 Sugd. Vend. & P. (7th Am. ed.) 1063. * Duchess of Kingston's case. State Trials ; Greenough v. Gaskell, ubi supra ; 1 Greenl. Ev. § 248, note; Hewitt i;. Prime, 21 Wendell, 79, Nor to clergymen, 1 Greenl. Ev. § 247 ; Commonwealth v. Drake, 15 Mass. 161. ' Vaillant v. Dodemead, 2 Atk. 524 ; Wilson v. Rastall, 4 T. R. 753. ' Harvey v. Clayton, 2 Swanst. 221, note (a). * Rothwell V. King, 2 Swanst. 221, note (a) ; Spencer v. Luttrell, ibid; Stan- hope V. Nott, ibid. It has been doubted whether it applied to conveyancers who were neither counsel nor solicitors. Vaillant v. Dodemead, 2 Atk. 524. 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 employed to manage a cause as counsel. Bean V. Quimby, 5 N. Hamp. 94. An attorney, 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 relation to such communication. Foster v. Hall, 12 Pick. 89. * Fountain v. Young, 6 Esp. N. P. C. 113. * Du Barre v. Livette, Peake's N. P. C. 78 ; cited 4 T. R. 756. See Jackson V. French, 3 Wendell, 337; Andrews v. Solomon, 1 Peters C. C. 326; Parker v. Carter, 4 Munf. 273. ' Parkins v. Hawkshaw, 2 Starkie, N. P. C. 239 ; Bunbury v. Bunbury, 2 Beav. 173. 8 Taylor v. Foster, 2 C. & P. 295 ; Foote v. Haynes, 1 C. & P. 545 ; 1 Ry. & M. 165. See 1 Greenl. Ev. § 239; Foster i;. Hall, 12 Pick. 93; Jackson v. French, 3 Wendell, 337. OF THE DIFFERENT GROUNDS OF DEMURRER. 605 to the representatives of the party.^ Questions concerning privi- leged communications arise more frequently upon motions for the production of documents than upon demurrers to discovery, but the same principles arc applicable on either occasion. V. The necessity that the bill should show, that a certain de- gree of privity exists between the plaintiff and defendant, in order to entitle him to maintain his suit, has been before pointed out,2 and it has been stated that the want of such privity will afford a ground for demurrer to the relief prayed. It sometimes, however, happens that a plaintiff, by his bill, shows that, sup- posing the facts he states are true, (and which, as we have seen, are admitted by every demurrer,) he has a right to the relief he prays, and yet he 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 incon- sistent 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 in what manner 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 an heir, ex parte maternd, against a general devisee and executor, who had completed, by conveyance to himself, a purchase of a real estate, contracted for by the testator after the date of his will, alleging that there was no heir ex parte paternd, but that the devisee set up a title under a release from his father as heir ex parte paternd of the testator, and seeking a discovery in what manner the father claimed to be heir ex parte paternd ^ Wigram on Discovery, 63. In support of tliis proposition, the learned author of the above-mentioned work refers to Parkhurst v. Lowten, 1 Mer. 391. That case, however, scarcely warrants the proposition in support of which it is adduced. See 1 Greenl. Ev. § 239. " Ante, p. 331. » Lord Red. 191 : Stroud v. Deacon, 1 Ves. 37 ; Buden v. Dore, 2 Ves. 445 ; Sampson v. Swettenham, 5 Mad. 16 ; Tyler v. Drayton, 2 S. & St. 309, and the cases there cited. Story Eq. PI. § 571. * Lord Red. 189, notes and cases there cited; see also Mayor of Dartmouth v. Scale, 1 Cox, 416. 51* 606 DEMURRERS. and the particulars of the pedigree under which he claimed, a de- murrer to that discovery was allowed.^ The principle upon which these cases proceed is, that the right of a plaintiff in equity to the benefit of a defendant's oath is limited to a discovery of such material facts as relate to the plain- tiff's case, and does not extend to a discovery of the manner in which, or of the evidence by means of which, the defendant's case is to be established, or to any discovery of the defendant's evidence.'-^ The application of this rule occurs so much more frequently on questions as to the production of documents than on demurrers to discovery that the subject will be described under tiiat head ; but it may be recollected that the Court proceeds upon the same principles on questions as to the sufficiency of answers, or demurrers to discovery, or on motions for the pro- duction of documents.^ Lastly, it may be mentioned, that communications which come within a certain class of official 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 interests.* 1 Ivy V. Kekewick, 2 Ves. jun. 679. « Wigram on Discovery, 90; Story Eq. PI. § 572-574 c; Shaftsbury v. Ar- rowsmith, 4 Sumner's Vesey, 72, Mr. Hovenden's note (1) ; Wigram, DIscov. (Am. ed.) p. 14, § 23, p. 15, § 27, 259 et seq. ; § 342 et seq. ; Mitford Eq. PI. by Jeremy, 189-192 ;• Adams v. Porter, 1 Gushing, 170 ; Cullison v. Bossom, 1 Mary- land Ch. Dec. 95 ; Howell v. Ashmore, 1 Stockt. (N. J.) 87, 88. This rule of the English Courts of Equity is not applicable in Massachusetts. Adams v. Porter, 1 Cushinc, 170. But see Wilson w. Webber, 2 Gray, 558, 562. The plaintiff must state the facts which he expects to establish by the defendant's answer, otherwise he cannot have a discovery, merely to enable him to judge whether he can pre- vail in a suit at law. Deas v. Harvie, 2 Barb. Ch. R. 448. ^ For instances in which this rule has been acted upon, where the objection has been taken by demurrer, see Stroud v. Deacon, 1 Ves. 37; Ivy v. Kekewick, 2 Ves. jr. 679; Glegg v. Legh, 4 Mad. 191 ; Compton v. Earl Grey, 1 Y. & J. 154; Wilson v. Forster, 1 Younge, 280; Tooth v. Dean and Chapter of Canter- bury, 3 Sim. 49. — On Motion to Produce, Princess of Wales v. Earl of Liverpool, 1 Swanst. 114; Micklethwaite v. Moore, 3 Mer. 292; Bligh v. Benson, 7 Price, 205; Tyler?;. Drayton, 2 S. & S. 309; Sampson v. Swettenham, 5 Mad. 16; 2 M. & K. 754, note (6); Firkins v. Low, 13 Price, 193; Wilson r. Forster, M'Lcl. & Young, 274 ; Tomlinson v. Lymer, 2 Sim. 489 ; see also Hobson v. War- rin'Hon, 3 P. Wms. 35; Davers v. Davers, 2 P. Wms. 410; Burton v. Neville, 2 Cox, 242 ; Shaftsbury v. Arrowsmith, 4 Ves. 66 ; Aston v. Lord Exeter, 6 Ves. 288 ; Worsley v. Watson, cited ibid. 289 ; Bolton v. The Corporation of Liver- pool, 1 M. & K. 88. — On Exceptions to Answers, Buden v. Dore, 2 Ves. 445. * See 1 Greenl. Ev. § 250 to 251. OF THE DIFFERENT GROUNDS OF DEMURRER. 607 In the recent case of Smith v. The East India Company,^ Lord Lyndhurst had to consider whether correspondence between the Court of Directors of the East India Company and the Board of Control came within 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 without injury to the public interests. In addition to the above-mentioned causes of demurrer it may be stated, that any irregularity in the frame of a bill, of any sort, may be taken advantage of by demurrer. Thus, if a bill is brought, contrary to the usual course of the Court, a demurrer will hold ;^ as 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 the demands of some of the defend- ants, a demurrer was allowed,* it being in effect a bill to vary a decree, and yet was 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 ob- tained by fraud. With respect to demurrers to amended bills in general, it may be observed, that an amended bill is liable to have the same objec- tions taken to it, by demurrer, as an original bill ; and that, even where a demurrer to the original bill has been overruled, a de- murrer to an amended bill has been allowed ; ^ and the circum- stance 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, the demurrer was held to be regular.^ The rule is also the same where the defence first put in is a plea, and the bill is afterwards amended, the amended bill may still be demurred to.^ It has been held that a defendant 1 1 Ph. 50. « 3 & 4 Will. IV. c. 85. 3 Lord Red. 206 ; Story Eq. PI. § 643. * Wortley v. Birkhead, 3 Atk. 809. 5 Bancroft v. Wardour, 2 Bro. C. C. 66 ; 2 Dick. 672, S. C ; 1 Hoff. Ch. Pr. 216, 217; 1 Smith Ch. Pr. (2d Am. ed.) 214; Moore v. Armstrong, 9 Porter, 697. ^ Bosanquet v. Marsham, 4 Sim. 573. ' Robertson v. Lord Londonderry, 4 Sim. 226. 608 DEMURRERS. cannot, after he has answered the original bill, if the plaintiff amends it, put in a general demurrer to the whole bill ; because the answer to the original bill, being still on the record, admits the equity.^ This, however, is not the present practice,^ unless in- deed the amendment had been made under a limited order, as, for instance, the addition of a party .^ With reference, however, to this point, the 37th Order of Au- gust, 1841, is important, wliich directs, " that no demurrer or plea shall be held bad, and overruled upon argument, only because the answer of the defendant may extend to some part of the same matter as may be covered by such demurrer or plea."* And we have before seen, that now no demurrer or plea shall be held bad, and overruled upon argument, only because such demurrer or plea shall not cover so much of the bill as it might by law have extended to.^ If, however, a demurrer is general to the whole bill, and there is any part, either as to the relief or the discovery, to which the defendant ought to put in an answer, the demurrer, being entire, must be overruled.^ ' Atkinson v. Hanway, 1 Cox, 360 ; see ElUce v. Goodson, 3 M. & C. 653. * Crecy v. Bevan. 13 Sim. 354. » Powell V. Cockerell, 4 Hare, 568. * This order has been adopted in the 37th Equity Rule of the United States Courts. ^ See page 571. In this respect there is a difference between a plea and a demurrer ; Mayor, &c. of London v. Levy, 8 Ves. 403 ; Baker v. Mellish, 1 1 Ves. 70. « Metcalf V. Hervey, I'Ves. 248; Earl of Suffolk v. Green, 1 Atk. 450; Todd V. Gee, 17 Ves. 273; Attorney-General v. Browne, 1 Swanst. 304; Treadwell v. Brown, 44 N. Hamp. 551. A demurrer bad in part is void in ioto. Verplanck V. Caines, 1 John. Ch. 57; Kuypers v. Reformed Dutch Church, 6 Paige, 571; Forbes v. Whitlock, 3 Edw. Ch. 446; Fay v. Jones, 1 Head, (Tenn.) 442; Shed V. Garfield, 5 Vermont, 39 ; Lube Eq. PI. (Am. ed.) 255 ; Castleman v. Weltch, 3 Rand. 598; Klmberley v. Sells, 3 John. Ch. 467; Graves v. Downey, 3 Mon- roe, 356 ; Chase's case, 1 Bland, 217; Blount v. Garen, 3 Hayw. 88; 1 Smith Ch. Pr. (2d Am. ed.) 206 ; Treadwell v. Brown, 26 Law Rep. 48. 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 altogether. Story Eq. PI. § 443 ; Iligginbothara v. Burnet, 5 John. Ch. 184 ; Burns v. Ilobdt, 29 Maine, 272, 277. A demurrer to the whole of a bill, containing some matters relievable and oth- ers not, Is bad, unless the bill is multifjirlous. Dimmock v. Blxby, 20 Pick. 3G8. McLaren v. Steapp, 1 Kelly, 376 ; Beach v. Beach, 11 Paige, 161 ; Stuyvesant V. Mayor, &c., of New York, 11 Paige, 414 ; Robinson v. Guild, 12 Metcalf, 323. OF THE DIFFERENT GROUNDS OF DEMURRER. 609 The Court has, however, up()li overruling a demurrer, given the defendant leave to put in a less extended demurrer, or to amend and narrow the demurrer already fded.^ In the latter case, how- ever, the application to amend must be made before the judgment upon the demurrer, as it stands, has been pronounced ^'^ but even where that has been omitted, the Court has, after the demurrer has been allowed, upon a proper case being shown, given the de- fendant leave, upon motion, to put in a less extended demurrer and answer.^ A defendant may also put in separate demurrers to separate and distinct parts of a bill for separate and distinct causes;* for tlio same grounds of demurrer frequently will not apply to different 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.^ It is to be noticed, that although a demurrer cannot be good in part and bad in part, it may be good as to one of the defendants demurring and bad as to others.^ Where a demurrer to a bill is overruled, because it covers too much, the defend- ant may, on exception to his answer, raise the question of the materiality of the discovery. Kuypers v. Ref. Dutch Church, 6 Paige, 570. A demurrer may be good as to one defendant, and bad as to other defendants. Barstow v. Smith, Walk. Ch. 394. But 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. 1 Baker v. Mellish, 11 Ves. 68 ; Thorpe v. Macauley, 5 Mad. 318. « Baker v. Mellish, 11 Ves. 72. « Ibid. ; Story Eq. PI. § 459. * Lord Red. 214 5 North v. Earl of Strafford, 3 P. Wms. 148 ; Roberdeau v. Rous, 1 Atk. 544. * North V. Earl of Strafford, uU supra ; Little v. Archer, 1 Hogan, 55. * Mayor, &c., of London v. Levy, 8 Ves. 403 ; Story Eq. PL § 445 ; 1 Smith Ch. Pr. (2d Am. ed.) 206 ; Barstow v. Smith, Walk. Ch. 394. If too many per- sons are joined as defendants in a bill in Equity, there being no misjoinder of subjects, one against whom a good cause of action is stated, cannot, on this ground, demur. N. Y. & N. H. R. R. Co. v. Schuyler, 17 N. Y. (3 Smith,) 592. 610 DEMURRERS. * Section III. Of the Form of Demurrers. A DEMURRER is iisually entitled " The demurrer of A. B. (or of A. B. and C. D.) to the bill of complaint of E. i^." If it be ac- companied by a plea, or by an answer, it should be called in the title " the demurrer and plea, or demurrer and ansivcr.^^ Where it is to an amended bill, it need not be expressed, 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 opposite party, it is preceded by a general protestation against the truth of the matters contained in the bill,^ a practice borrowed from the common law, and probably intended to avoid conclusion in another suit,^ or in the suit in which it is put in, in case the demurrer should be overruled. After the protestation, the demurrer, where it is not to the whole bill, proceeds to point out the parts of the bill to which it is intended to apply.* The rule, as to this, is very clearly laid down by Lord Redesdale in Devonsher v. Newnham : ^ — " It has been re- peatedly said, 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 look- ing into the bill or answer to see what is covered by the demur- rer ; but that 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, specify- ing it precisely."^ > Smith V. Bryon, 3 Mad. 428. « Story Eq. PI. § 452, 457 ; 1 Smith Ch. Pr. (2d Am. ed.) 209. Protestations in demurrers are required, in New Hampshire, to be omitted by Rule 6, of the Rules of Chancery Practice. » Ld. Red. 212. * In New Hampshire, the form of a demurrer is required in substance to be : — " The defendant says the plaintiff is not entitled upon such bill to the relief [or discovery] prayed for, because," &c. Rule 10, of the Rules for Chancery Prac- tice. * 2 Sch. & Lef 199, 205. * See Atwill v. Ferrett, 2 Blatch. C. C. 39. ' Chetwynd v. Lindon, 2 Ves. 450 ; Salkeld v. Science, ib. 107 ; Johnston v. OF THE FORM OF DEMURRERS. Cll It is to be noticed, that although a demurrer, in the form above stated, viz., " to all the rest of the bill which is not answered," would, for the reasons stated by Lord Redesdale, be a bad form of demurrer, a demurrer to all the bill, except as to a particular specified part, would not be open to the same o))jection ; and where the exception applies to a very small part only of the bill, it has been held to be the best way of demurring.^ In framing such a demurrer, however, care must be taken that it should ap- pear distinctly by the demurrer itself what part of the bill is to be included in the exception ; for if it should be necessary to refer to the answer, for the purpose of ascertaining it, the demurrer will be bad.2 The same rule will apply to cases where there are 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 parts of an amended bill, as have been introduced by the amendments, it will 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 answered 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 de- murrer, either general or specific ; ^ a defendant is said to demur generally when he demurs to the jurisdiction, or to the substance 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 Johnston, 2 Moll. 414; Story Eq. PI. § 457, 458, and notes; Nash v. Smith, 6 Conn. 421 ; Clancy v. Craine, 2 Dev. Ch. 3G3. ^ Hicks V. Raincock, 1 Cox, 40 ; see also Howe v. Duppa, 1 V. & B. 511. 2 Robinson v. Thompson, 2 V. & B. 118 ; Story Eq. PI. § 457, 458 ; Jarvis v. Palmer, 11 Paige, 650. In former times, when the whole of a bill had necessarily to be answered, and the interrogatories were part of the bill, diOirnlties occurred in practice, and refined distinctions existed with reference to partial demurrers. These difficulties can scarcely occur now when no part of the bill need be an- swered unless separate interrogatories are filed. * Mynd v. Francis, 1 Am. 6. * Duffield V. Graves, Cary, 87 ; Offley v. Morgan, ib. 107 ; Peachey v. Twy- cross, ib. 113. ^ Nash V. Smith, 6 Conn. 422. See Johnston v. Johnston, 2 Moll. 414. A general demurrer, without any special cause assigned, has the effect only to turn the inquiry upon the equities of the bill. Wellborn v. Tiller, 10 Alabama, 305. 612 DEMURRERS. the jurisdiction or to the substance, state specially the particular grounds upon which he founds his objection ; and indeed some of the grounds of demurrer, which go to the substance of the bill, re- quire 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 objec- tion to his bill, so as to enable him to amend by adding proper parties ; ^ and in the case of a demurrer for multifariousness, a mere allegation, " that the bill is multifarious," will be informal, it should state as the ground of demurrer, that the bill unites dis- tinct matters upon one record, and show the mconvenience of so doing.2 It is also to be observed, that some objections, which appear to be merely upon matters of form, may be taken advantage of under general demurrers for want of equity ; thus it has been before stated, that some bills may be demurred to on the ground that they are not accompanied by an affidavit; that objection, however, is in. fact an objection to the equity, because the cases in which an affi- davit is required are those in which the Court has no jurisdiction, unless 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 purpose of verifying that fact ; and so in those cases in which a demurrer will lie, because the plaintiff's right is not stated to have been first established at Law, it is because the ground of the Court's interference is the fact that the legal title of the defend- ant has been established in some proceeding in a Court of ordinary jurisdiction. In all these cases the objection may be made either in the form of a special demurrer, or of general demurrer for want of equity ; because the plaintilT, by his bill, does not bring his case within the description of cases over which the Court exercises juris- diction. Upon the same principle, a defendant may take advan- tage, by general demurrer, of the omission to offer to do equity in cases where such an offer ought to be made. Tiie objection for want of sufficient positiveness in the plaintiff's statement of facts, within his own knowledge, may also be taken by general demurrer.^ Care must be taken, in framing a demurrer, that it is made to rely only upon the facts stated in the bill, otherwise it will be what 1 Ante, 452. « Rayner v. Julian, 2 Dick. 677 ; 5 Madd. 144, n. (h), S. C. « Ante, 251. OF THE FORM OF DEMURRERS. CI 3 is termed a speaking' demurrer^ and will be overruled.^ Thus, where a bill was filed to redeem a mortgage, alleging that the plain- tiff's ancestor had died in 1770, whereupon, noon after, the defend- ant took possession, and the defendant demurred, and for cause of demurrer showed, that it appeared, upon the face of the bill, that from the year 1770, which is upwards of twenty years before the filing of the bill, the defendant had been in possession. Lord Thur- low 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.^ It is material to notice that, in order to constitute a speaking demurrer, the fact or averment introduced must be one which is necessary to support the demurrer, and is not found in the bill. The introduction of immaterial facts, or averments, or of ar- guments, is improper, but it is mere surplusage, and will not vitiate the demurrer.^ A defendant is not limited to show one cause of demurrer only, he may assign as many causes of demurrer as he pleases, either to the whole bill, or to each part of the bill demurred to ; and if any * Brownsword v. Edward-;, 2 Ves. 245. A speaking demurrer Is one which in- troduces a new fact or averment, which is necessary to support the demurrer ; Davies v. Williams, 1 Simons, 7 ; and which does not appear distinctly on the face of the bill. Brooks v. Gibbons, 4 Paige, 374. See Kuypers v. lief. Dutch Church, 6 Paige, 570 ; M'Comb v. Armstrong, 2 Moll. 295 ; Story Eq. PI. § 448 ; Pendlebury v. Walker, 4 Younge & Coll. 424 ; 1 Smith Ch. Pr. (2d Am. ed.) 206 ; Tallmadge v. Lovett, 3 Edw. Ch. 563 ; Saxon v. Barksdale, 4 Desaus. 522. 2 Edsell V. Buchanan, 4 Bro. C. C. 254 ; 2 Yes. jr. 83, S. C. It is said in Brooks V. Gibbons, 4 Paige, 375, that " the case of Edsell v. Buchanan, 2 Ves. jr. 83, has been frequently misunderstood. The demurrer in that case was not overruled as a speaking demurrer, merely on account of a modest suggestion, that the time, stated by the complainant, ' about the year 17 70,' was upwards of twen- ty years before the filing of the bill. But it was because that suggestion, from the manner in which it was introduced into the demurrer, was in the nature of an averment, that the defendant had been in possession of the mortgaged prem- ises for more than twenty years. And the fact of such possession was necessary to sustain the defence set up on the argument of the demurrer ; which defence was, that the plaintiff's right to redeem was barred by the lapse of time. The precise time, at which the defendant's possession commenced, not apj^earing from the bill itself, the averment that the heir of the mortgagee had been in pos- session ' upwards of twenty years before the bill filed,' should have been brought forward by plea, or answer, and not by demurrer." ' Cawthorn v. Chalie, 2 S. & S. 127; Davies v. Williams, 1 Sim. 5. VOL. 1. 52 614 DEMURRERS. one of the causes of demurrer assigned hold good, the demurrer "will be allowed.^ Wliere, however, two or more causes of demur- rer are shown to the whole bill, the Court will treat it as one de- murrer ; and if one of the causes be considered sufficient, the order will be drawn up as upon a complete allowance of the de- murrer.^ A defendant may, also, at the hearing of his demurrer, orally assign another cause of demurrer, different or in addition to those assigned upon the record, which, if valid, will support the demurrer, althougli the causes of demurrer, stated in tlie demur- rer itself, are held to be invalid. This oral statement of a cause of demurrer, at the Bar, is called demurring ore terms. It is to be noticed that, although a defendant may, either upon the record, or ore tenns^ assign as many causes of demurrer as he pleases, such causes of demurrer must be coextensive with the de- murrer upon the record ; therefore, causes of demurrer, which apply 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 demurrer 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 which ap- plies to part only ; but after a demurrer to the bill in a part has been overruled it appears that a demurrer to the bill or to the part may be allowed ore tenus^ The demurrer, having assigned the cause or causes of demurrer, ^ Harrison v. Hogg, 2 Ves. jr. 323; Jones v. Frost, 3 Mad. 1, Jac. 466, S. C. 2 Wellesley v. Wellesley, 4 M, & C. 554. « Pitts V. Short, 17 Ves. 213, 216 ; Metcalf w. Brown, 5 Price, 560. * Crouch V. Hickin, 1 Keen, 385 ; Cooper v. Earl of Powis, 3 De Gex & Sm. 688. Where a demurrer is put in to the whole bill for causes assigned on the record, if those causes are overruled, the defendant will be allowed to assign other causes of demurrer, ore terms, at the argument. Brinkerhoff v. Brown, 6 John. Ch. 149 ; Story Eq. PI. § 464 ; Wright v. Dame, 1 Metcalf, 237 ; M'Dermot v. Blois, R. M. Charlt. 281 ; Daly v. Kirwan, 1 Irish Eq. 157. See Garlick v. Strong, 3 Paige, 440. But a demurrer ore tenus will never be allowed unless there is a demurrer on record ; for if there is a plea on record, and tliat is disallowed, a de- murrer ore tenus will also be disallowed. Story Eq. PI. § 464. See Hook v. Dor- man, 1 Sim. & Stu. 227 ; Metcalfe v. Brown, 5 Price, 560. Under a general de- murrer 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; Stillwell v. M'Neely, 1 Green Ch. 305. See Pyle v. Price, 6 Sumner's Vesey, 781, Mr. Ho- venden's note (2) ; Mitford Eq. PI. by Jeremy, 217. A new cause of demurrer assigned ore tenus must be coextensive with the demurrer. Harr. Ch. 227. OF THE FORM OF DEMURRERS. 615 then proceeds 'to demand judgment of the Court, whether the de- fendant ought to be compelled to put in any further or other an- swer to the bill, or to such part thereof as is specified as being the subject of demurrer, and concludes with a prayer that the defend- ant may be dismissed with his reasonable costs in that behalf sus- tained. When a demurrer is to part of the bill only, the answer to the remainder usually follows the statement of the causes of demurrer and the submission to the judgment of the Court of the plaintiff's right to call upon the defendant to make further or other answer.^ A demurrer must be signed by counsel,^ but is put in without oath, as it asserts no fact, and relies merely upon matter apparent upon the face of the bill.^ ^ See Varick v. Smith, 5 Paige, 137. A demurrer may be to the whole bill or to a part only of the bill ; and the defendant may therefore demur as to one part, plead as to another part, and answer to the rest of the bill. Story Eq. PI. § 442 ; Newton v. Thayer, 17 Pick. 132, 133 ; Pierpont v. Fowle, 2 Wood. & Minot. 23. But a defendant cannot plead or answer, and demur both, to the whole bill or to the same part of a bill. Clark v. Phelps, 6 John. Ch. 214 ; Beauchamp v. Gibbs, 1 Bibb, 481 ; Robinson v. Bingley, 1 M'Cord Ch. 352. If the defendant demur to the whole bill, an answer to a part thereof is inconsistent ; and the demurrer will be overruled. Story Eq. PI. § 442. For the same reason, if there be a de- murrer to a part of the bill, there cannot be a plea or answer to the same part, without overruling the demurrer. Story Eq. PI. § 442 ; Clark v. Phelps, 6 John. Ch. 214 ; Souzer v. De Meyer, 2 Paige, 574 ; Mitford Eq. PI. by Jeremy, 209, 210 ; H. K. Chase's case, 1 Bland, 21 7 ; Leacraft v. Dempsey, 4 Paige, 124 ; Spof- ford V. Manning, 6 Paige, 383 ; Miller v. Fasse, 1 Bailey Eq. 187 ; Jarvis v. Pal- mer, 11 Paige, 650 ; Kuypfers v. Reformed Dutch Church, 6 Paige, 570 ; Chase's case, 1 Bland, 206 ; Saxon v. Barksdale, 4 Desaus. 522 ; Bull v. Bell, 4 Wis. 54. In Massachusetts, " the defendant, instead of filing a formal demurrer or plea, may insist on any special matter in his answer, and have the same benefit there- from as if he had pleaded the same or demurred to the bill." Rule 28, of the Rules of Practice in Chancery. See Lovett v. Longmire, 14 Ark. (1 Barb.) 339. The same rule exists in New Hampshire, Rule 10 of Chancery Practice. 38 N. Hamp. 607. So, in substance, in Maine, Rule 6. 37 Maine, 583. * 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 nullity. Graham v. Elmore, Harring. Ch. 265. ^ Lord Red. 208. By the 31st Equity Rule of the United States Courts, no demurrer or plea shall be allowed to be filed to any bill, unless upon a certificate of counsel, that in his opinion it is well founded in point of law, and supported by the affidavit of the defendant, that is not interposed for delay ; and if a plea, that it is true in point of fact. 616 DEMURRERS. » Section 1Y. Of Filing-y Setting- doicn, and Hearing' Demurrers. After the draft of the demurrer has been settled and signed, it is to be fairly engrossed on parchment and carried to the Record and Writ Clerk to be filed. It seems to be necessary that a separate demurrer, by a married woman, should have an order to warrant it ; such a demurrer ought not, therefore, to be filed till an order to that effect has been procured.^ By tlie 16th Order of May, 1845, Art. 10, "A defendant may demur alone to any bill within twelve days after his appearance thereto, but not afterwards." By sec. 13 of 15 & 16 Vict. c. 86, " Whether the plaintiff in any suit commenced by bill does or does not require any answer from the defendant or any one or more of the defendants to the bill, such defendant or defendants may, without any leave of the Court, put in a plea, answer or demurrer to the plaintiff's bill within the time now allowed to the defendant for demurring alone to a bill, or within such other time as shall be fixed by any General Order of the Lord Chancellor in that behalf, but after that time a defend- ant or defendants not required to answer the plaintiff's bill shall not be at liberty to put in a plea, answer or demurrer to the bill without leave of the Court, provided that the power of the Court to grant further time for pleading, answering or demurring to any bill upon the application of any defendants or defendant thereto, whether required to answer the bill or not, shall remain in full force and shall not be in anywise prejudiced or affected." By the 19th Order of August, 1852, " A defendant required to answer a bill must put in his plea, answer or demurrer thereto, not demurring alone, within fourteen days from the delivery to liim or his solicitor of a copy of the interrogatories which he is required to answer; but the Court shall have full power to enlarge the time from time to time upon application being made to the Court for that purpose." It appears that, under the old practice, the Court would, in cer- tain special cases, allow a defendant to put in a demurrer to the » Baron v. Grillard, 3 V. & B. 165. OF FILING, SETTING DOWN, AND HEARING DEMURRERS. 617 whole bill, even after he had obtained an order for time.^ It has been said : — " In a special case the Court will grant such a motion as this. By a special case, I mean some peculiar circumstance, as surprise ; it not being sufficient, in such a case as this, to show, on the merits of the case, that a demurrer was proper ; for it ap- peared proper in the cases cited,^ though in them the motion was denied."^ According to the present practice of the Court, therefore, if a defendant, after the expiration of twelve days from the time of his appearance, puts in a demurrer to the whole bill without a special order for that purpose, he is guilty of an irregularity, and the plaintiff may, upon application to the Court by motion, obtain an order to take the demurrer off the file and oblige the defendant to pay the costs of his proceeding,* With respect to the extent of the answer which will be con- sidered as a sufficient compliance with the order not to demur alone the cases mentioned in the note ^ may be referred to. A mere illusory plea or answer to a part of the bill will not be per- mitted ; but it may be observed, that when the objection to the dis- covery arises upon the interrogatories, as when the defendant ob- jects to the whole discovery on the ground of breach of privilege, he will probably be permitted to file a demurrer, objecting to the whole discovery after the fourteen days have expired. It has been before stated, that if a defendant omits to put in his demurrer, or to answer within the time limited by the order, and an attachment is, in consequence, issued against him for want of an answer, a demurrer, even though coupled with an answer, will be irregular, and that in such case the proper course is to move * Bruce v. Allen, 1 Madd. 556 ; and see Smith u. Webster, 3 M. & C. 246, as to the jurisdiction of the Court to dispense with the General Orders. See Dav- enport V. SnifFen, 1 Barb. Ch. R. 223; Lakens v. Fielden, 11 Paige, 644; Be- dell V. Bedell, 2 Barb. Ch, R. 99. " Taylor v. Milner, 10 Ves. 444 ; Dolder v. Lord Huntiiigfield, 11 Yes. 283. » 1 Smith Ch. Pr. (2d Am. ed.) 207, 208 ; Burrall v. Raineteaux, 2 Paige, 331 ; 2 Madd. Ch. Pr. (4th Am. ed.) 264, 265 ; Kenriok v. Clayton, 2 Bro. C. C. (Per- kins's ed.) 214, note (1), and cases cited. * Dyson v. Benson, Coop. Rep. 110; Burrall v. Raineteaux, 2 Paige, 331. * Dyson i'. Benson, Coop. Rep. 110; Stephenton v. Gardiner, 2 P. Wms. 286; Lee V. Pascoe, 1 Bro. C. C. 78; Kenrick v. Clayton, 2 Bro. C. C. 214; 2 Dick. 685, S. C. ; Lansdown v. Elderton, 8 Ves. 526 ; Tomkin v. Lethbridge, 9 Ves. 178; Taylor v. Milner, 10 Ves. 446 ; Wetherhead v. Blackburn, 2 V. & B. 123. 52* 618 DEMURRERS. that the demurrer and answer be taken off the file, and not that the demurrer be overruled.^ It is right here to advert to the distinction in practice between takinti: a demurrer and answer off the file, and simply overruling the demurrer, thereby leaving the answer on the file. The former course appears to be the one adopted in all cases where there has been an irregularity in the filing of the demurrer, whether it be ac- companied by an answer or not.^ The course of overruling the demurrer is adopted wherever the demurrer has been properly filed but the Court is of opinion that it is insufficient, or that it has been overruled by the answer ; a demurrer will also be over- ruled where a defendant, after filing it, omits to conform to some of the rules of practice with regard to setting it down, which will be presently pointed out.^ It may be noticed, with reference to this part of the subject, that where a demurrer has been taken off the file for irregularity, it ceases to be a record of the Court, and the defendant may, there- fore, put in a plea, or another demurrer, (if his time for demurring has not expired,) as if no demurrer had been filed.* It is to be observed, however, that the demurrer is not taken off the file by the mere pronouncing of the order, but that it must actually be withdrawn from the file. To effect this the order, when drawn up, should be carried to the Record and Writ Clerk, who will withdraw the demurrer annexing the order for it.^ It was once necessary, after filing a demurrer, to enter it with the Registrar, but now, by the 44th Order of May, 1845, " a de- murrer or plea need not be entered with the Registrar ; but upon the filing thereof by a defendant, either party is at liberty to set the same down for argument immediately." The 23rd Order of October, 1842, provides, that where any so- licitor or party files a demurrer, he shall, on the same day, give notice thereof to the solicitor of the adverse party, or to the ad- verse party himself, if he acts in person. If the defendant put in a demurer which it is apprehended will hold good, the best way for the plaintiff, if he intends to discon- tinue the suit, is to move and obtain an order to dismiss his bill, ' Ibid. Curzon v. De la Zouch, 1 Swanst. 193. * Ibid. .^ Atkinson v. Ilanway, 1 Cox, 360. * Cust V. Boodc, 1 S. & S. 21. » Ibid. OF FILING, SETTING DOWN, AND HEARING DEMURRERS. 619 with costs, which costs being paid to the dcfeiidaiit there is an end of the suit.i But if the plaintiff thinks fit he may apply to the Court, either by motion or petition, to amend his bill, on payment of twenty shillings costs ; ^ this, however, must be done before the demurrer is set down to be argued, otherwise the plaintifT must pay the defendant the costs of the demurrer, and twenty shillings besides, before he can amend. -^ These costs used to be fixed at five pounds, and where, after a demurrer had been set down, the plaintiff sul)mitted, and obtained the ordinary order to amend on payment of twenty shillings, the Court, upon motion by the de- fendant, ordered him to pay the additional five pounds.* If a plaintiff wishes to amend his bill after a demurrer has been set down, he must obtain leave to do so before it is called on for argument; otherwise he may not be permitted to do so.^ After a demurrer has been set down, the defendant may, by mo- tion, obtain an order to withdraw it on payment of costs.*' By the 45th Order of May, 1845, where a demurrer to the whole or part of a bill is allowed upon argument, the plaintiff, unless the Court orders to the contrary, is to pay to the demurring party the costs of the demurrer; and if the demurrer be to the whole bill, the costs of the suit also. By the 46th of the Orders of May, 1845,''' where a demurrer to the whole bill is not set down for argument, within twelve days after the filing thereof, and the plaintiff does not within such twelve days serve an order for leave to amend the bill, the de- murrer is to be held sufficient to the same extent, and for the ^ 1 Har. 216. ^ Warburton v. London and Blackwall Railway Company, 2 Beav. 253 ; Hearn V. Way, 6 Beav. 368. ^ 1 Har. 216. * 1 Har. 61, 1808; Anon. 9 Ves. 221. The 31st Order of 1828 provided for tlie payment by the plaintiff of taxed costs, both of the demurrer and of the suit, upon the allowance of the demurrer ; and this Order seems to have been extended to a case where the plaintiff submitted without argumi-nt; Jones v. Wattier, 4 Sim. 128. The Order is now discharged, and the 45th Order of May, 1845, which is substituted in its place, is confined to the allowance of a demurrer upon argument. It is doubtful, therefore, whether the old practice, under which 51. was payable, is not now applicable when the' plaintiff submits to a demurrer after it is set down and without argument. See post, 626. ^ Holmes v. Waring, 8 Price, 604. * Downes v. East India Company, 6 Ves. 586. " ' See also Order 16, Art. 17; Matthews v. Chichester, 5 Hare, 207. 620 DEMURRERS. 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 bill allowed upon argument. By the 47th of the same Orders,^ where a demurrer to part of a bill is not set down for argument within three weeks after the fil- ing thereof, and the plaintift' does not within such three weeks serve an order for leave to amend the bill, the demurrer is to 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 part of a bill allowed upon argument. In computing the period allowed for setting down a demurrer, the vacations are not included.^ As by these Orders, in the event of a demurrer not being set down for argument within a limited period, the defendant derives the same benefit as by its allowance, the duty is cast upon the plaintiff, if he is desirous that it should be submitted to the judg- ment of the Court, of having it set down for argument. This is done by presenting a petition for an order to set down the de- murrer. By Order of the 23d of February, 1850, all pleas, demurrers, ex- ceptions and objections for want of parties, required to be heard before the Lord Chancellor or one of the Vice-Chancellors shall be set down by the Registrars for hearing on orders drawn up by them upon petition to the Lord Chancellor left with the Registrar, without any fiat or direction from the Lord Chancellor. The petition to set down a demurrer must state the Judge to whose Court the bill or information is attached, and the time when the demurrer was filed, and whether the demurrer is to the whole or only to part of the bill.^ No deposit is requisite. Tiie peti- tion is left at the Registrar's office for the order to be drawn up and passed ; and when it has been passed and entered it must be served upon the solicitor for the opposite party.* The order directs the demurrer to be set down next after the pleas and demurrers ^ See afso Order 16, Art. 18. * 14th Order, May, 1845, Art. 31 ; and see ante, p. 417. ^ 5th Order, May, 1837, and Order of 11th November, 1841, and Regulations in the Registrar's office, made in pursuance of the above-mentioned Order of February, 1850. By the same Regulations the solicitor is required to subscribe on the petition his name or firm, and the party for whom he acts, and also the date. * Hind. 213. OF FILING, SETTING DOWN, AND HEARING DEMURRERS. 621 already appointed. The service of this order upon the solicitor for the opposite party must take place at least two days before the day appointed for hearing.^ By a General Order of the Court no demurrer is to be set down for hearing on any particular day, except the order for setting down the same be brought to the Registrar to be entered at least two days before the day appointed for hearing such demurrer,^ and it is to be observed, that in general the Court cannot direct a de- murrer to be heard at an earlier day than the one appointed, al- though it may advance it to the head of the paper on that day.^ In cases, however, of bills for injunction, as no injunction can issue pending a demurrer,* the Court w411, upon application, where the matter is pressing, order the demurrer to be argued immedi- ately ; but it is not a matter of course to do so ; and where there had been considerable delay in filing the bill, which was unaccounted for, the Court refused to advance the demurrer.^ Although it is usually incumbent upon the plaintiff to set down a demurrer for argument, when he does not submit to it ; yet we have seen, that by the terms of the 44th of the Orders of May, 1845, the defendant is also at liberty to set it down, and there may be cases in which it will be of consequence for him so to do.^ When a demurrer is called on for hearing, and the defendant omits to appear, the demurrer will be struck out of the paper, unless the plaintiff, being the party who has set down the demurrer, can produce an affidavit of service upon the defendant or his solici- tor of the order to set it down. If the plaintiff can produce such an affidavit, the demurrer is not necessarily overruled, but he must be heard in support of the bill, the affidavit of service not author- izing the Court, in the absence of the defendant, to overrule the demurrer, but to hear the plaintiff." When the defendant appears, ^ Demurrers are usually put into the cause paper on the first cause day after they have been set down six clear days. * Beames's Orders, 120. 3 Anon. 1 Mad. 157. * Cousens v. Smith, 13 Ves. 164. 5 Jones V. Taylor, 2 Mad. 181. ^ By the 33d Equity Rule of the United States Courts, the plaintiff may set down the demurrer or plea to be argued, or he may take issue on tlie plea. If, upon an issue, the facts stated in the plea be determined for the defendant, they shall avail him, as far as in Law and Equity they ought to avail him. ' Penfold V. Ramsbottom, 1 Swanst. 552. 622 DEMURRERS. and the plaintiff does not, the demurrer will also be struck out of the paper, unless the defendant can produce an affidavit of service upon himself of the order for setting down the demurrer ; or un- less, in the event of the defendant having himself set down the de- murrer, he can produce an affidavit of service by him upon the plaintiff or his solicitor. On the production of such an affidavit in either case the defendant may have the demurrer allowed with costs.^ Where a demurrer has been struck out of the paper a fresh order must be obtained for setting it down, which may be had either upon petition or motion.^ Tlie usual course of proceeding when the demurrer comes on for hearing, and all parties appear, is generally for the junior coun- sel for the party setting the demurrer down for argument to open the pleadings, after which the counsel in support of the demurrer are heard, and 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 appearing upon the record, and, for the purposes of the argument, the matters of fact stated in the bill are admitted to be true.^ After a demurrer has been called on for hearing, the Court will not in general allow the plaintiff, at his own suggestion, to amend his bill, unless by consent of the defendant, though, as we have seen, such a proceeding was permitted in a cause where a mistake ha,d been made in the bill by mere inadvertence or oversight, upon payment of the costs.* Where it has appeared upon the hearing of a demurrer to the whole bill, that the defendant is entitled to demur to some part only, the Court has permitted the demurrer to be amended, so as ^ Jennings v. Pearce, 1 Ves. jr. 447. ^ Tolson V. Lord Fitzwilliam, 4 ^lad. 403. As to the presumption concerning facts not averred by the bill, see Foss v. Harbottle, 2 Hare, 503. ^ See ante, 565. * Holmes v. Waring, 8 Price, 604. After demurrer to a bill was overruled, and time given to answer, the defendant was allowed to demur again without leave first obtained, on the plaintiff's amending his bill by joining a new party plaintiflT. Moore v. Armstrong, 9 Porter, 697. So where an amendment is made to a bill before answer filed, even if it be immaterial and trivial, a defendant may demur, de novo, to the whole bill ; the defendant may demur to the amendment at any time. Booth v. Stumper, 10 Georgia, 109. But when an answer has been filed, the defendant cannot, after demurrer made and decided, demur again to the whole bill, unless the amendment is material. lb. OF THE EFFECT OF ALLOWING DEMURRERS. 623 to confine it to the parts to which the defendant has a right to de- mur ; ^ 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 part of the bill as he may be advised. It has been before stated, that when a demurrer comes on for argument, the defendant may assign a new cause of demurrer, ore temis, different from that stated on the record, and the rules which regulate this proceeding have been pointed out.^ It is, however, to be observed here, that a defendant cannot demur ore tenus, un- less there is a demurrer on the record ; and that, upon this ground, where a defendant had pleaded, and upon the plea being overruled offered to demur ore tenus, for want of parties, he was not permit- ted to do so.^ 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 ; though after he has demurred to the whole bill it is doubt- ful whether he can claim ore tenus as to part.* Section V. Of the Effect of alloiving- Demurrers. Strictly speaking, upon a demurrer to the whole bill being al- lowed, the bill is out of Court, and no subsequent proceeding can be taken in tlie ca\ise.^ There are cases, however, in which the Court has afterwards permitted an amendment of the bill 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 tlie case on foot again.^ The instances in which this has been done, however, are very rare.^ » Glegg V. Legh, 4 Mad. 193. * See ante, pp. G13, 614. ' Durdant i'. Redman, 1 Vern. 78 ; Ilook v. Dorman, 1 S. & S. 227 ; Story Eq. PI. § 464 ; ante, 613, 614, note. * See Shepherd v. Lloyd, 2 Y. & J. 490 ; Crouch v. Hlcken, 1 Keen, 385 ; ante, pp. 613, 614. * Smith V. Barnes, 1 Dick. 67 ; Watkins v. Bush, 2 Dick. 701. * Lord Coningsby v. Sir J. Jekyll, 2 P. Wms. 300 ; Lloyd v. Loaring, 6 Yes. 779. See Baker v. Mellish, 11 Ves. 68 ; Watkins v. Bush, 2 Dick. 701. ' It is not necessary in Massachusetts, even where a demurrer goes to the equity of the whole bill, that the plaintiff should make a motion to amend, in an- 624 DEMURRERS. But although after a demurrer has been allowed the bill is out of Court, and no order can be subsequently made in the cause, the Court will in some cases, where it sees that the defect pointed out by the demurrer can be remedied by amendment, and substan- tial justice requires it, make a special order, at the hearing of the demurrer, adapted to the circumstances of the case. Thus, where the demurrer is allowed on the ground of want of parties, the Court generally gives the plaintiff leave to amend his bill by add- ing parties, as he may be advised. According to Lord Cottenham, " It is not usual, upon allowing a general demurrer, to give leave to amend ; but it may be done. It is in the discretion of the Court so to do."^ In the case of Tyler v. Bell,^ Lord Langdale, M. R., upon allow- ing a demurrer for want of parties, refused to give the plaintiif leave to amend his bill, by adding the necessary parties; and Lord Cottenham dismissed an appeal from this order, saying that " when it is said that a bill is never dismissed for 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 hear- ing, the Court sees that the plaintilTcan have no relief under any circumstances, is it bound to let the cause stand over in order that the plaintiff may add parties to so hopeless a record ? There must be a discretion in the Court, and the cases of Lowe v. Fair- lie,^ and Lewis v. Gentle,"^ prove that such discretion exists. I ticipation of an adverse decision. According to the practice in this State, after a demurrer is sustained, the case is not regarded as out of Court so that it cannot be reinstated by amendment in matters of substance, because application therefor was not made before the decision on the demurrer was pronounced. The usual mode is to allow the plaintiff a reasonable time after a demurrer has been sus- tained, 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 additional grounds for the equitable relief which he seeks. And such amendments are always allowed, unless sufficient cause is shown to the contrary. In this respect the practice of the Court is very liberal. But a motion to amend is not allowed as a matter of right. Merchants' Bank of Newburyport v. Steven- son, 7 Allen, 489, 491. 1 4 M. & C. 558; and see Johnstone v. Anthony, 2 Mol. 373. 35th Equity Rule of the United States Courts. 2 2 M. & C. 89. ^ 2 Mad. 101. * Cited 2M. & C. 111. OF THE EFFECT OF ALLOWING DEMURRERS. 625 think that the Master of the Rolls properly in this case refused permission to amend. I am of opinion that this bill is clearly de- fective for want of parties ; and that the case stated is such as to make it impossible to obtain any relief upon this bill against the defendants to the bill, and that the plaintiff ought, therefore, not to have leave to amend." It frequently happens, that when a demurrer for want of parties is allowed, the court, instead of confining its permission to amend to a mere addition of parties, will, upon the plaintifT's applica- tion, give the plaintiff general leave to make such amendments as he mav be advised.^ When, upon the argument of a demurrer, leave is given to the plaintiff to amend his bill, the defendant, if he is desirous of ap- pealing from this order, 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, however, be observed, that amending the bill, after the overruling of a de- murrer, does not prejudice the defendant's right to appeal from the decision overruling the demurrer.^ 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.* Although the effect of allowing a demurrer to the wliole bill is to put the cause out of Court, the allowance of a partial demur- rer is not attended with such a consequence. The bill, or that part of it which was not covered by the demurrer, still remains in Court, and the plaintiff may obtain an order to amend, or to refer the answer upon exceptions, or adopt any other proceedings in the cause, in the same manner that he might have done had there been no demurrer.^ A demurrer being frequently on matter of form is not, in gen- eral, a bar to a new bill ; but if the Court, on demurrer, has ' Newton V. Lord Egmont, 4 Sim. 585. * Wellosley v. AVellesley, 4 M. & C. 554. * Jackson v. North- Western Railway Company, 13 Jur. 69. See note (e), ante, 412, note 3. * Pesheller v. Ilamraett, 3 Sim. 389 ; and 66th Order, May, 1845 ; Bainbridge V. Baddeley, 12 Beav. 152. ' Lord Red. 215. A demurrer for want of parties is to the whole bill. VOL. I. ■ 53 626 DEMURRERS. clearly decided upon the merits of the question between the par- ties, the decision may be pleaded in another suit.^ We have before seen that where a demurrer to the whole or part of a bill is allowed upon argument, the plaintiff, unless the Court orders to the contrary, is to pay to the demurring party the costs of the demurrer, and if the demurrer be to the whole bill, the costs of the suit also.^ This order does not seem, so far as it relates to demurrers, to have made any difference in the practice that has prevailed since the Orders of 1828.^ Previously to that time the practice was governed by two Or- ders, the result of which was, that on the allowance of the de- murrer, the plaintiff paid to the defendant five pounds costs, and in special cases such other costs as the Court thought fit to award.* We have also seen, that where either a demurrer to the whole bill or to part of a bill is filed, if the plaintiff does not, within a short limited period, in each case serve an order to amend the bill, or set down the demurrer for argument, he will have to pay the same costs as upon the allowance of the demurrer on argument.^ When the plaintiff, after the filing of a demurrer, serves an order for the amendment of his bill before the demurrer has been set down for argument, it seems that he is only bound to pay twenty shillings costs.^ If the demurrer has been set down, and the plaintiff amends, submitting thereto, there is not any order precisely fixing tlie costs which he has to pay, but, upon motion of course by the defendant, he will be ordered to pay the costs.^ With respect to the costs of a demurrer ore tenus, the general practice, when the demurrer has been allowed on the ground of want of parties, and the Court has given the plaintiff leave to amend his bill by adding parties, has been not to compel the plain- 1 Lord Red. 215. « 45th Order, May, 1845. See 35th Equity Rule of the United States Courts. '31st Order of 1828, discharged. * Beames's Ord. 320 and 456. * Ante, 619, 620. ^ Hearn v. AVay, 6 Bear. 368 ; Warburton v. The Blackwall Railway Com- pany, 2 Beav. 255. ' Hearn v. Way, supra; Anon. 9 Ves. 221 ; ante, 619, n. OF THE EFFECT OF ALLOWING DEMURRERS. 627 tiff to pay the costs of the demurrer ; ^ and where in such cases the plaintiff, instead of taking leave to amend by adding parties, has asked for and obtained leave to amend his bill generally, the course of the Court appears to be to make him liable to the costs of the demurrer.2 The rule, however, with respect to costs upon such occasions, is not imperative, and the Court has a discretion- ary power; and, therefore, where Sir L. Shadwell, V. C, upon allowing a demurrer ore tenits, 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 make any alteration in the order ; his Lord- ship being of opinion, that as the 32d Order of 1828 ^ was impera- tive, unless the Court thought fit to make an order to the con- trary, and as the Vice-Chancellor had not thought fit to make use of the discretion given him by the Order, he (the Lord Chancel- lor) could not interfere.* Where a demurrer to a bill is allowed, and afterwards tlie order allowing it is, upon re-argument, reversed, the defendant, if he has received the costs from the plaintiff, will be ordered to refund them, upon application by the plaintiff;^ and so if a demurrer has been overruled, and the order is reversed upon rehearing, the plaintiff, if he has received costs from the defendant, must refund them. ' Newton v. Lord Egmont, 4 Sim. 585 ; and as to the form of the order in such a case, see Attorney-General v. Corporation of Poole, 4 M. & C. 35. ' It is to be observed, that this practice is not inconsistent with the general rule above laid down, that a defendant demurring ore tenus must pay the costs on the record. If the plaintiff on such occasion, instead of submitting to have his bill dismissed, as must be the case upon the allowance of the demurrer, unless it is accompanied with a permission to amend by adding parties, takes the benefit of such permission, it is but fair that he should lose his right to the costs of a pro- ceeding by which in fact he is benefited ; for there can be no doubt, that it is in general an advantage to a plaintiff to have a defect of that nature pointed out in an early stage of the cause, so that he may remedy it, before it comes on for hearing. And so if, after a demurrer for want of parties allowed, the plaintiff asks for and obtains leave to amend further than by adding parties, it is only right that he should pay the costs of a proceeding which has had the effect of directing his attention to the defects in his record, and has given him an opportu- nity of remedying them without his incurring the expenses of a separate appli- cation for that purpose. On this subject, for the old practice, see Durdant v. Redman, 1 Vern. 78 ; Attorney-General v. Brown, 1 Swanst. 265 - 288 ; Morti- mer V. Fraser, 2 M. & G. 173. ' See post, 629. * Mortimer v. Fraser, uhi supra. ' Oats V. Chapman, 2 M. & C. 177; S. C. 2 Ves. 100; 1 Dick. 148. 628 DEMURRERS. Section YI. Of the Effect of overruling Demurrers. After a demurrer to the whole bill has been overruled, a sec- ond demurrer to the same extent cannot be allowed, for it would be in effect to rehear the case on the first demurrer ; as, on argu- ment of a demurrer, any cause of demurrer, though not shown in the demurrer as filed, may be alleged at the bar, and if good will support the demurrer.^ A demurrer, however, of a less extensive nature, may, in some cases, be put in.^ A second demurrer, however, though less extended than the first, cannot, after the first demurrer has been overruled, be put in without leave of the Court ; but the case is different where the first has been taken off the file for irregularity.^ This leave is generally granted, upon hearing the first demurrer, but it has been permitted upon a subsequent application by motion. But although a defendant cannot, after the Court has overruled his demurrer to the whole 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 de- murrer, 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 facts which are necessary to bring the case truly before the 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 to delay his answer by plea or demurrer, without leave of tlie Court, once, he must, previously to filing liis plea, obtain the leave of the Court to do so, otherwise his plea may be taken off" the file.^ And it seems that the defendant, at the time of the demurrer being overruled, is entitled to apply to the Court for time to an- swer.^ 1 Lord Red. 217. " Devonsher v. Newenham, 2 Sch. & Lef. 199; Glegg v. Legh, 4 Mad. 207; Thorpe v. Macaulay, 5 Mad. 218. ' Ante, 618. * Lord Red. 216. ^ Rowley V. Eccles, 1 S. & S. 512. * See Atlantic Ins. Co. v. Lemar, 10 Paige, 385; Henderson r. Dennison, 1 Carter (Ind.), 152 ; Fleece v. Russell, 13 111. 31 ; North Western Bank v. Nel- son, 1 Grattan, 108 ; Sutton r. Gatewood, 6 Muuf. 398 ; Lafavour v. Justice, 5 OF THE EFFECT OF OVERRULING DEMURRERS. 629 Where a demurrer to part, accompanied by an answer to the rest of the discovery sought for by the plaintiff's bill is overruled, the plaintiff, if he wishes for a further answer, must except to the answer already put in for insufficiency ,i but not until the demur- rer has been argued,^ otherwise he will admit the demurrer to be good. 3 The rule is said to be different if the demurrer be to the relief only.* If after a decision overruling the demurrer he amends either generally or by adding parties, he will not thereby lose his right to except to the answer which has been already put in.^ By the 32nd of the Orders of 1828, it is ordered, that upon the overruling of any plea or demurrer, the defendant or defendants shall pay to the plaintiff or plaintiffs the taxed costs occasioned thereby, unless the Court shall make other order to the contrary. Moreover, we have before seen, that by the 55th Order of May, 1845, " Where a demurrer or plea to the whole bill is overruled, the plaintiff, if he does not require an answer, may immediately file his traversing note in manner directed by Orders 52 and 53,^ as the case may require, and with the same effect, unless the Court, upon overruling such demurrer or plea, gives time to the defend- ant 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 uote.^ Blackf. 336 ; Tuterbaugh v. Elliott, 22 Illinois, 157. Where a domnrrer to a bill, for want of Equity is overruled, a final decree, without giving the defendant an opportunity to deny the allegations in the bill, is erroneous. Smith v. Ballaa- tyne, 10 Paige, 101 ; Forrest r. Robinson, 4 Porter, 44 ; Bottorf v. Conner, I Blackf. 287; Cole County v. Augney, 12 Miss. 132. ' Cotes V. Turner, Bunb. 123. See Kuypers v. Ref. Dutch Church, 6 Paige, 570. * London Assurance Company t'. East India Company, 3 P. Wms. 32G. » Lord Red. 317 ; see Boyd v. Mills, 13 Ves. 85. ♦ Lord Red. 317 ; cited 3 P. Wms. 327, n. (s.) * Taylor v. Bailey, 3 M. & C. 677. • See ante, 498. ' If, upon the hearing, any demurrer or plea is overruled, the plaintiff shall be entitled to his costs in the cause up to that period, unless the Court shall be satis- fied, that the defendant had good ground in point of law or fact to interpose the same, and it was not interposed vexa'tiously or for delay. And upon the over- ruling of any plea or demurrer, the defendant shall be assigned to answer the bill, or so much thereof as is covered by the plea or demurrer, the next succeed- 53* 630 PLEAS. CHAPTER XV. PLEAS. Section I. — Of the general Nature of Pleas. A DEMURRER lias been mentioned to be the proper mode of de- fence to a bill, when any objection is apparent upon the bill itself, either from matter contained in it, or from defect in its frame, or in the case made by it. When an objection to the bill is not ap- parent on the bill itself, if the defendant means to take advantage of it, he must show to the Court the matter which creates the ob- jection, either by answer or by plea, which has been described as " a special answer, showing or relying upon one or more things as a cause why the suit should be either dismissed, delayed, or barred."! The defence proper for a plea 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 bill applies.^ It is not, however, necessary that it should consist of a single fact, for though a defence offered by way of plea consists of a great variety inc rule day, or at such other period, as, consistently with justice and the rights of the defendant, the same can, in the judgment of the Court, be reasonably done ; in default whereof, the bill shall be taken against him pro confesso, and the matter thereof proceeded in and decreed accordingly. 1 Lord Red. 218 ; Story Eq. Tl. § 649 ; Lube Eq. PI. 238 ; Carroll v. Waring, 3 Gill & John. 491 ; Ileartt v. Corning, 3 Paige, 566 ; Tappan v. Evans, 11 N, Hamp. 311. * Lord Red. 219 ; 1 Smith Ch. Pr. (2d Am. ed.) 217 ; Goodrich v. Pendleton, 8 John. Ch. 384 ; Story Eq. PI. § 652 ; Sims i-. Lyle, 4 Wash. C. C. 303, 304. The plea must be perfect in itself, so that if true in fact, it will put an end to the cause. Allen v. Randolph, 4 John. Ch. 693 ; Drogheda v. Malone, Finlay's Dig. 449. If the plea is the only 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, whether true or false, the plaintiff should move to set it aside for insufficiency. Newton v. Thayer, 17 Pick. 129 ; Piatt v. Ohver, 1 McLean, 303 ; Union Branch R. R. Co. V. East Tenn. and Georgia R. R. Co., 14 Geo. 327. A plea simply denying a fact alleged in the bill, and setting up no new matter, is bad. Bailey v. Le Roy, 2 Edw. Ch. 514 ; ISlilligan v. Milledge, 3 Cranch, 220 ; Black V. Black, 15 Georgia, 445. OF THE GENERAL NATURE OF PLEAS. 631 of circumstances, yet, if they all tend to one point, they will be good.^ In general, a plea relies upon matters not apparent upon the bill ; and in most cases it is a rule, that where a defendant insists upon matter by plea which is apparent upon the face of the bill, and miglit be taken advantage of by demurrer, the plea will not hold.2 This rule, however, as will be seen presently, is in some cases liable to exception. Where a plea merely states matter not apparent upon the bill, and relies upon the effect of such matter as a bar to the plaintiff's claim, it is called an affirmative plea. Such pleas usually proceed upon the ground that, admitting the case stated by the bill ^o be true, the matter suggested by the plea affords a sufficient reason why the plaintiff should not have the relief he prays, 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 tlie plea, to be true.^ But, although pleas generally consist of the averment of some new fact or claim 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 pro hac vice to be true to destroy their effect, there are cases in wliich 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} Thus, to a bill praying that the defendant might ' Lord Red. 296 ; Story Eq. PI. § 652 ; Rhode Island v. Massachusetts, 14 Peters, 211. But it is otherwise where the defence consists of a great variety of facts and circumstances, rendering it necessary to go into the examination of witnesses at large. Laud v. Sergeant, 1 Edw. Ch. 164 ; Story Eq. PI. § 653, 654. » Billing V. Flight, 1 Mad. 230 ; Phelps v. Garrow, 3 Edw. Ch. 139 ; Story Eq. PI. § 647, 660 ; Varick v. Dodge, 9 Paige, 149. » Lord Rod. 295. * Story P2q. PI. § 651, note, § 657 et acq.; Wigram, Discov. (2d ed.) p. 110- 118. This class of pleas has two peculiarities ; in the first place it relies wholly upon matters stated in the bill, negativing such facts as are material to the rights of the plaintiff; and in the next place it requires an answer to be filed, which is subsidiary to the purposes of the plea. Story Eq. PI. § 670. See also Cosine v. Graham, 2 Paige, 177; Robinson v. Smith, 3 Paige, 222; Mitchell t;. Lenox, 2 Paige, 280 ; Smets v. Williams, 4 Paige, 364. 632 PLEAS. redeem a mortgage or be foreclosed, the defendant may plead that there was no mortgage.^ It is proper here to mention another species of plea which often occurs in the books, and is not, strictly speaking, either a plea affirming new matter or negativing the plaintiff's title as alleged in the bill, but one which reasserts some fact stated in the bill, and which the bill seeks to impeach, and denies all the circumstances which the plaintiff relies upon as the ground upon which he seeks to impeach the fact so set up. Thus, where a bill is brought to impeach a decree, on the ground of fraud used in obtaining it, the decree may be pleaded in bar of the suit, with averments negativ- ing the cliarges of fraud \^ of the same nature are pleas setting up the award itself to a bill filed for the purpose of impeaching it on the ground of partiality or fraud in the arbitrators ; or a stated ac- count, wlicre error or fraud in the account is charged by the bill for the purpose of avoiding its effect. Of a similar description are also pleas of releases^ or stated accounts, where bills have been filed for the purpose of setting them aside. It may be ob- served that in most of these cases a negative plea, meeting the matters suggested in the bill, to avoid the effect of the bar set up, would be sufficient.* It lias been before stated, that bankruptcy and other matters arising after the filing of the bill may be pleaded.^ And so where a bill was filed for a discovery and relief by injunction to restrain the defendant from setting up outstanding terms to defeat a writ of right, a plea, that since the filing of the bill, the writ of right had been tried and determined against the plaintiff, was allowed to be a good plea.^ This rule has been adopted from analogy to pro- ceedings at common law, where any matter which arises between the bill and the pica may be pleaded in bar ; ' but the analogy, in 1 Hitchcns v. Lander, Coop. R. 34 ; and see Armitage v. Wandsworth, 1 ]\Iad. 189 ; Drew v. Drew, 2 V. & B. 159. See also Sanders v. King, Mad. & Geld. 61 ; Yorke v. Fry, ibid. 65; Tbring v. Edgar, 2 S. & S. 274, 281 ; Arnold v. Heaford, 1 M'Lel. & Y. 330. ^ Lord Red. 239 ; and see observations concerning such pleas in Pusey v. Des- bouverie, 3 P. Wms. 317, * Lloyd V. Smith, 1 Anst. 258 ; Freeland r. Johnson, ibid. 276. * See Sir J. Wigram on Discovery, p. 37. ^ Turner v. Robinson, 1 S. & S. 3 ; and see Tarleton v. Hornby, 1 Y. & C. 101, Exc. R. » Earl of Leicester v. Perry, 1 Bro. C. C. 305. ' Turner v. Robinson, uhi supra. OF THE GENERAL NATURE OF PLEAS. 633 this respect, between Courts of Law and Equity will not extend further ; for at Law, even after plea, if any matter occurs which would abate the suit or operate as a bar, such matter might, pre- viously to the recent new rules of pleading, adopted under the Uniformity of Process Act, be offered to the Court by a plea, termed a plea puis darrein continuance, and may still be pleaded with an allegation, that the matter arose after the last pleading, &q} In Courts of Equity, however, such a plea does not seem admissible.^ It is essential to observe that, whatever the nature of the plea may be, whether affirmative or negative, or of the anomalous na- ture above alluded to, the matter pleaded must reduce the issue between the plaintiff and defendant to a single point.^ If a ple.a is double, i. e. tenders more than one defence as the results of the facts stated, it will be bad.^ Tluis, a plea which stated, that the plaintiffs who claimed as citizens of London, never were resident there or paid scot and lot, and tliat they were admitted freemen by fraud for the purpose of enjoying the exemption claimed, was held bad ; because the facts that the plaintiffs were not citizens of Lon- don, and that they were admitted by fraud, were totally inconsis- tent with each other.^ The rule that a plea must reduce the defence to a single ground must be understood as not interfering with the proposition before laid down, that a plea may consist of a variety of facts and circum- stances ; *^ all that it requires is, that those facts and circumstances should give as their result one clear ground upon which the whole > 1 Chitty on V\. 658, 659. » Lord Red. 81 ; see Howe v. Wood, Ij. & W. 315 ; Wood v. Rowo, 2 BUgb, 595; Hayne y. Hayne, 3 Cha. Rep. 19; Nels. 105, S. C. ; Wright u. Meek, 3 Iowa, 472. » Saltus V. Tobias, 7 John. Ch. 214 ; Story Eq. PI. § 654 et seq. * Nobkissen v. Hastings, 2 Ves. jr. 84 ; Jones v. Frost, 3 Mad. 1, 8; Van Hook V. Whitlock, 3 Paige, 409, Duplicity in one and the same plea is a vice in plead- ing in Equity, as well as at Law. Moreton v. Harrison, 1 Bland, 496, See Saltus V. Tobias, 7 John. Ch. 214 ; Rhode Island v. Massachusetts, 14 Peters, 211 ; Goodrich v. Pendleton, 3 John. Ch. 386 ; Ridgcley v. Warfield, 1 Bland, 494 ; Story p]q. PI. § 653. A plea is not rendered double by the mere insertion there- in of several averments, that are necessary to exclude conclusions arising from allegations which are made in the bill, to anticipate and defeat the bar which might be set up in the pica. Bogardus v. Trinity Church, 4 Paige, 178. * Corporation of London v. Corporation of Liverpool, 3 Anst. 738 ; and see Cooth V. Jackson, 6 Ves. 12 ; Whitbread v. Brockhurst, 1 Bro. C. C. 404 ; Wat- kins V. Stone, 2 Sim. 49 ; Story Eq. PI. § 656. * Ritchie V. Aylwin, 15 Ves. 79, 82 ; Story Eq. PI, § 652. 634 PLEAS. equity of tlie bill may be disposed of.^ The rule upon this subject, and the reasons upon which it has been established, have been thus stated. It is not true that any two facts which are not inconsistent may be pleaded in one plea. Various facts can never be pleaded in one plea, unless they are all conducive to a single point, on which the defendant rests his defence. Thus, many deeds may be stated in a plea, if they all tend to establish the single point of title ; so in the case of papacy.^ But 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 na- ture may occur where a bill is so framed that, if the principal case made by it cannot be supported, it may be sustained by some sub- sidiary matter, which lias been introduced for the purpose of main- taining the suit.^ Thus, in Gibson v. Whitehead,* where a 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 payment of the debts ; and, sec- ondly, that if that was not the true construction of his will, then his real estates were liable under the 47 Geo. III. s. 2, c. 74, he having been a trader at the time of his death, an order was made upon motion, that the defendant might be at liberty to plead, first, the will of the testator, for the purpose of showing that lie did not thereby charge his real estates with the payment of his debts ; and, secondly, that he was not, at the time of his death, a trader within the meaning of the act.^ ^ Rowe V. Teed, 15 Ves. 379 ; Strickland v. Strickland, 10 Sim. 253. Where the allegations of a plea, being taken as true, do not make out a full defence, or •where the necessary facts are to be gathered by inference alone, the plea cannot be sustained. Meeker v. Marsh, Saxton (N. J.), 198. * Harrison v. Southcote, 1 Atk. 528 ; \\'hitbread v. Brockhurst, 1 Bro. C. C. 404 ; and see Sir S. Romilly's note, 1 Bro. C. C. 415, Belt's edit, cited 2 V. & B. 455. ^ Story Eq. PI. § 657, and note ; Van Hook v. Whitlock, 3 Paige, 409 ; Mit- ford Eq. PI. by Jeremy, 295, note ; Didier v. Davison, 10 Paige, 515. Two dis- tinct pleas in bar, different in their nature, as a plea of the statute of limitations, and a discharge under the insolvent act, cannot be pleaded together, without the previous leave of the Court. Saltus v. Tobias, 7 John. Ch. 214. * 4 Mad. 241. * See also Hardman v. Ellames, 5 Sim. 640 ; 2 M. & K. 732, S. C. OF THE GENERAL NATURE OF PLEAS. 635 But, although, in the above case, the necessity for a double plea arose from the circumstance of there being a sort of double or al- ternative claim in the bill, this is not the only ground upon which the Court acts in allowing double pleas : the principle upon which the Court proceeds depends very much upon the extraordinary inconvenience tliat might arise, if the defendant were not allowed to take this course ; and upon this principle, 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 pa- tent, on the grounds that, so far as the invention was new, it was useless, and that so far as it was useful, it was not new, Lord Lang- dale, M. R., gave the defendant leave to plead, first, that the inven- tion was not useful ; secondly, that it was not new ; ^ and in Bamp- ton V. Birchall,^ the same Judge permitted the defendant in an ejectment suit to plead, first, that the person under whom the plaintiff claimed was not the heir ; and, secondly, that even if he were such heir the plaintiff's right was barred by the Statute of Limitations. It is to be observed that, before a defendant puts in a double plea, he must obtain an order for leave to do so, by special motion upon notice ; and that such a plea, filed without such an order, would be irregular as well as liable to be overruled.^ With reference to the sulyect of multifarious or double pleading, it is to be noticed that, where the facts stated in the plea are suffi- cient to constitute a good plea, the introduction into the plea of a fact which, although it puts in issue a distinct matter, is not im- portant to the validity of the plea itself, will not vitiate the plea.* Thus, if a defendant pleads a release, and then avers that it has been acted upon, the release being of itself a bar whether it has been acted upon or not, tlie further allegation that it has been acted upon is unimportant, and will be rejected as surplusage."^ The rule that a defendant cannot plead several matters, must not be understood as precluding a defendant from putting in sev- eral pleas to different parts of the same bill ; it merely proliibits his pleading, without previous leave, a double defence to the whole * Kay V. Marshall, 1 Keen, 192. * 4 Beav. 558 ; and see Young v. White, 17 Beav. 540. * Kay V. Marshall, ubi supra ; Gibson v. Whitehead, vbi supra ; Hardman v. Ellames, ubi supra ; Saltus v. Tobias, 7 John. Ch. 214. * Story Eq. PI. § 6G3. » Claridge v. Iloare, 14 Ves. 59, 65. 636 PLEAS. bill, or to the same portion of it. A defendant may plead differ- ent matters to separate parts of the same bill, in the same manner that (as we have seen) a defendant may put in different demurrers to different portions of the bill. A defendant may, in like man- ner, plead and demur, or plead and answer, to different parts of the same bill, provided he points out, distinctly, the different por- tions of the bill 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, point out to what particular part of the bill each plea is applicable. But, although the general rule is, that in the case of a partial plea a defendant must specify distinctly what part of the bill he pleads to, the rule which has been stated, as applicable to a demurrer, viz. — that it cannot be good in part and bad in part, — is not applicable with the same strictness to a plea, for it has been repeatedly decided that a plea in Ecpiity may be bad in part and not in the wliole, and the Court will allow it to so much of the bill as it is properly applicable to.^ It appears from the cases, tliat the rule, that a plea may be al- lowed in part only, is to be understood with reference to its extent, i. e. to the quantity of the bill covered by it, and not to the ground of defence offered by it ; and that if any part of the defence made by the plea is bad, tlie whole must be overruled.^ Tims, if a de- fendant pleads a fine and non-claim, which is a legal bar, and a purchase for a valuable consideration without notice of the plain- tiff's claim, which is an equitable bar, if either should appear not to be a bar, as if the defendant by answer should admit facts amounting to notice, or if the {)lea, with respect to either part, should be informal, the whole 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 ^ Lord lied. 295 ; Coop. Eq. PI. 230 ; Beames on Pleas, 45 ; Earl of Suffolk v. Green, 1 Atk. 450 ; Dunealf v. Blake, ibid. 52 ; Huggins v. York Buildings Com- pany, 2 Atk. 44 ; Dormer v. Fortescue, ibid. 281 ; Turner v. Mitchel, 1 Dick. 249 ; Roche v. Morgell, 2 Sch. & Lef. 725 ; see also Harrison v. Southcote, and Earl of Derby v. Duke of Athol ; Story Eq. PI. § 692, 693 ; French v. Shotwell, 20 John. 668 ; S. C. 5 John. Cb. 555 ; Kirkpatrick v. White, 4 Wash. C. C. 695. 2 Salmon v. Dean, 3 Mac. & Gor. 345. See Mad. Plank Road Co. v. Wat. Plank Road Co. 5 Wis. 173. ' Salmon v. Dean, 3 Mac. & Gor. 295. OF THE GENERAL NATURE OF PLEAS. 637 a single point, it is necessary, in order to its validity, that all mat- ters which are essential to bring it to that point should be stated on the face of the plea, so that the Court 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 protect himself by a plea, stating that he was the purchaser 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 plaintiff to the property : this is called " a plea of purchase "for valuable consideration without notice," and is, if true, a good bar to the suit. It will not, however, be sufficient, merely to state by way of plea, that the defendant is a purchaser for a valuable consideration without notice ; but lie must state upon the plea, that the person from whom he purchased had such an interest in the property as entitled him to convey it to the defendant ; that it was conveyed to the defendant by the proper mode of conveyance ; that a valuable consideration was paid for it by the defendant ; and that the defendant had no notice of the claim of the plaintiff: for the coincidence of all these facts is neces- sary, to constitute a good bar in Equity to a suit of the nature alluded to ; ^ and the omission of any of them would render the defence invalid, because the plaintiff has a right, by replying to the plea, to put all the matters contained in it in issue, and by that means to compel the defendant to support them, or at least such of 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 distinction between demurrers and pleas ; for, if the fact necessary to consti- tute a good i>lca appears sufficiently upon the bill, so as to exclude the necessity of averments, the bill might, in most cases, be objected to by demurrer.^ ' Lord Red. 275 ; High i'. Batte, 10 Yerger, 335 ; Donnell v. King, 7 Leigh, 393 ; Griffith v. Griffith. 1 Iloff. Ch. R. 153 ; INIalony v. Kcrnan, 2 Dru. & War. 31 ; Craig v. Leiper, 2 Yerger, 193 ; Jewett i'. Palmer, 7 John. Ch. 65 ; Galla- tian V. Cunningham, 8 Cowen, 36 1 ; Souzer v. De Meyer, 2 Paige, 574 ; Drog- heda v. Malone, Fiiihiy's Dig. 449. A plea, setting up a forfeiture, by breach of a condition subsecjuent for the payment of money, in bar of a suit in Equity for relief, must distinctly aver laches on the part of the plaintiif. Hancock v. Carl- ton, 6 Gray, 39. * Bicknell v. Gough, 3 Atk. 558 ; Roberts v. Hartley, 1 Bro. C. C. 56 ; Billing VOL. I. 54 638 PLEAS. Another office of averments in a plea is, to exclude intend- ments which would otherwise be made against the pleader ; for, if there is any charge in tlie bill which is an equitable circumstance in favor of the plaintiff'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.^ The necessity for tlie introduction of such averments into a plea is obvious, when we consider that a plea for the purpose of deciding on the validity of it, like a demurrer, admits all the facts stated in the bill to be true, so far as they are not controverted by the plea ;^ so that whenever matters Of fact are introduced into the bill, which, if true, would destroy the effect of the matter pleaded, the plea will be overruled, unless such matters are controverted by the averments. From what has been said above, it will be seen that averments in pleas may naturally be divided into affirmative and negative averments. Affirmative averments are those which are not sug- gested by any matter upon the face of the bill which is inconsistent 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 in- stance above referred to, of a plea of purchase for valuable consid- eration without notice, it has been stated that the defendant must aver in his plea, that the person from whom he purchased had such an interest as entitled him to convev the estate to the defendant, and that it was conveyed to the defendant in a proper manner, and that a valuable consideration was paid for it, and that the defend- ant had no notice of the plaintiff's title, the concurrence of all these matters being requisite to constitute a good equitable bar to the plaintiff's claim. It may be objected that the last matter averred, namely, the want of notice, being negative matter, cannot properly be called an affirmative averment ; but it is not the mere fact of averring affirmatively or negatively which constitutes the V. Flight, 1 Mad. 230; Stiff ?;. Andrews, 2 Mad. 6. See Story Eq. PI. § 679 et seq., and notes. 1 Lord Red. 298 ; and see Hony v. Hony, 1 S. & S. 568. ■ Plunket V. Penson, 2 Atk. 51 ; Roche v. Morgell, 2 Sch. & Lef. 727; Me- Ewen I'. Broadhead, 3 Stockt. (N. J.) 131. OF THE GENERAL NATURE OF PLEAS. 639 distinction to which I have referred, but whether the matter be in- troduced by way of affirmation of the defendant's plea or of nega- tion of such of the plaintiff's statements as are inconsistent with the plea. Thus the very fact of want of notice in a plea of pur- chase for a valuable consideration may be both affirmatively and negatively averred ; for if the bill merely sets out the plain- tiff's title, and does not charge the defendant with having any notice of it, the want of notice, being one of the circumstances necessary to constitute the equitable bar, must be averred in the plea, in which case, according to the distinction above pointed out, the averment is affirmative. And so, if the bill actually charges the defendant with notice, the notice must be equally denied by averment, in which case the averment will be a neg- ative averment. A negative averment, therefore, is that species of averment which is made use of to contradict any statement or charge in the bill, which, if uncontradicted, would be to do away with the effect of the matter pleaded. The most common case in which this form of averment is used, is where notice or fraud arc alleged in the bill, for the purpose of obviating some anticipated defence which may be set up by the defendant.^ This brings us to the consideration of the cases in which it has been heretofore deemed necessary that a plea should be supported by an answer.^ We have before seen, that wherever a bill, or part of a bill, the substantive case made by which may be met by a plea, brings forwards facts which, if true, would destroy the effect of the plea, those facts must be negatived by proper averments 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 » Lord Red. 277, n. ; Hoare v. Parker, 1 Bro. C. C. 578 ; 1 Cox,- 224, S. C. See Fish v. Miller, 5 Paige, 26. ^ See Story Eq. PI. § 681 et seg., and notes ; Sims v. Lyle, 4 Wash. C. C. 303, 304. In Massachusetts, under Rule 21, of the Rules for Practice in Chancery, " in any case, in which the bill charges fraud or combination, a plea to such part must be accompanied with an answer supporting the plea, and explicitly denying the fraud or combination, and the facts on which the charge is founded." So under 32nd Ecjuity Rule of the United States Courts, where a plea is such, that an answer is required to support it, it will be overruled unless such answer is put in. Ilagthorp v. Hook,' 1 Gill & John. 270. 640 PLEAS. plea should do more than generally deny the facts charged in the bill,i the plaintiff might, if no answer were to be required from the defendant in addition to his plea, be deprived of the indefeasible right which he has to examine the defendant upon oatli as to all the matters of fact stated in tli« bill which are necessary to support his case.^ To obviate this result, therefore, the rule was adopted, that any statement or charge in the bill affording an equitable cir- cumstance in favor of the plaintiff^'s case against the matter pleaded (such as fraud or notice of title) must be denied by way of answer.^ In general, an answer in support of a plea could not be required in those cases where such negative averments as those above stated were not necessary ; where the defence was by a jjure plea, that is, a plea merely suggesting matter in avoidance of the plaintiff's right to sue, as stated in the bill, an answer in support of the plea was not required.^ In such a case the defendant, by his plea, ad- mits the plaintiff's case, and so full and complete is tlie admission, that if, after argument, issue be joined upon the truth of the plea, and the plea be found false, there is an end of the dispute, and the plaintiff is entitled to a decree upon this implied admission of his case.'^ Tlie same principle also requires that a negative plea, i. e. a plea which merely consists of a negative averment denying the plaintiff's right, or the principal facts or circumstances upon which it is founded, should be supported by an answer in those cases only in which the bill states or charges facts by way of evidence of the plaintiff's right. It is required in those cases, because the plain- tiff" has a clear right in Equity to a discovery as to all matters within the knowledge of a defendant which would enable him to * Lord Red. 275. " Wigram on Discovery, 21. Where the plaintiff waives the necessity of an answer being put in ou oath, if the defenilant puts in a plea to the bill, he need not support it by answer. Ilcartt i\ Corning, 3 Paige, 566. * Lord Red, 262. See as to answering the statement or charge, Denys v. Lo- cock, 3 M. & C. 234 ; Piatt v. Oliver, 1 McLean, 295 ; Bellows v. Stone, 8 N. Hamp. 280. If a bill sets forth matter which may avoid a bar to the suit, it must be particularly and precisely denied in the answer. New Eng. Bank v. Lewis, 8 Pick. 113, 117. • See Story Eq. PI. § 670, 674, 675 et seq., and notes; Bogardus V. Trinity Church, 4 Paige, 178 ; Souzer v. De Meyer, 2 Paige, 574. * See Wheeler v. Piper, 3 Jones Eq. (N. C.) 249. ' Wigram on Discovery, 36 ; Wood v. Strickland, 2 V. & B. 158 ; Brownsword V. Edwards, 2 Ves. 247. OF THE GENERAL NATURE OF PLEAS. 641 support his case ; ^ and it would be against that principle if a de- fendant could, by merely denying the existence of the claim, de- prive the plaintiff of the means of proving its validity.^ It must be recollected that at the time when the careful and elaborate rules concerning answers in support of pleas were framed, or rather resulted from numerous decisions, the practice of the Court was, that a defendant must in all cases answer either the whole bill or such part as he did not cover by plea or demurrer. Now a defendant is in no case required to give an answer, except to interrogatories filed for his examination, and constituting a sep- arate document. The principles of the old cases with respect to an answer supporting a plea still remain the same, but they will be much easier in application. A defendant will only be obliged to answer those particular interrogatories which seek for a discov- ery of the truth of the matters pleaded. In former times the application of these rules gave occasion for extremely refined legal subtleties, in consequence of the Court requiring of a defendant the greatest accuracy in the form of a joint plea 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 tlie bill he pleaded, and to what 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 over- ruled ; or, on tbe other hand, if the answer extended to any por- tion of the bill properly covered by the plea, it was equally liable to be overruled.^ The result of this extreme strictness was, that » Sanders v. King, Mad. & Geld. 61 ; Yorke v. Fry, ibid. 65 ; Thriug v. Ed- gar, 2 S. & S. 274 ; llardman v. Ellanies, 5 Sim. 640. * Story Eq. PI. § 670, 671, 681. A naked negative plea denying a partnership is not suflicient. It must be supported by an answer. Innes v. Evans, 3 Edw. Ch. 454. See" Everitt v. Watts, 3 Edw. Ch. 486 ; Hall v. Noyes, 3 Bro. C. C. (Perkins's ed.) 483, 488, note. . * Story Eq. PI. § 688, and notes. If the defendant answers to any matters covered by his plea, he overrules the plea. Bolton v. Gardner, 3 Paige, 273 ; Chase's Case, 1 Bland, 217 ; Ferguson v. O'llarra, 1 Peters C C. 493 ; Clark v. Saginaw City Bank, Ilarring. Ch. 240; Bangs y. Strong, 10 Paige, 11; The Bank v. Dugan, 2 Bland, 254. When an answer contains more than is strictly applicable to the support of the plea, \t overrules the plea. Stearns v. Page, 1 Story C. C. 204. If the defendant answers as to those matters, which by his plea 54* 642 PLEAS- sometimes in cases to which a defence by plea and answer was strictly applicable, the bill might have been so framed as to render it practically impossible for the defendant to avail himself of such a form of pleading.^ This strict operation of the rules of pleading was materially modified by the Orders of August, 1841 ; the 36th and 37th of which provide, that no plea shall be held bad and overruled upon argument only because such plea shall not cover so much of the bill as it might have extended to, or because the answer of the de- fendant may extend to some of the same matter as may be covered by such demurrer or plea.^ These Orders do not in any way interfere with the rule which renders it necessary that the plea should not cover a greater por- tion of the bill than that to which the defendant is strictly entitled to apply it ;^ consequently it is still incumbent upon the pleader to distinguish accurately the parts of the bill to which he intends to plead. With respect to affirmative pleas, the difficulty of ascertaining the part of the bill to be answered is not, in general, very great. The most simple cases of this sort are those in which the bill, with- out expressly admitting or suggesting the existence of a legal or equitable bar, eitlier by direct statement or by way of pretence, introduces facts which are inconsistent with it, obviously for the purpose of anticipating and avoiding such a defence, if set up ; as where a plaintiff, for the purpose of avoiding the effect of a plea of the Statute of Limitations, without intimating such purpose, he has dcchned to answer, he overrules the plea. Souzer v. De Meyer, 2 Paige, 374. See Bolton v. Gardner, 3 Paige, 263 ; Chase's Case, 1 Bland, 217; Sims v. Lyle, 4 Wash. C. C. 303 ; Piatt v. Oliver, 1 McLean, 295 ; Robertston v. Bing- ley, 1 M'Cord. Ch. 352 ; Joyce v. Gunnels, 2 Rich. Eq. 259 ; Bogardus v. Trinity Church, 4 Paige, 1 78. If an answer commences as an answer to the whole bill, it overrules the plea or demurrer to any particular part of the bill, al- though such part is not in fact answered. Leacrafl v. Demprey, 4 Paige, 124; Summers v. Murray, 2 Edw. Ch. 205. An answer which is broader than the plea, in that it denies allegations not denied by the plea, overrules the plea. Lewis V. Baird, 3 McLean, 56. So when there is a plea and no answer is required to support it from any charges in the bill requiring a discovery ; in such case an answer is impertinent and overrules the plea. Story Eq. PI. § 688. 1 Denys v. Locock, 3 M. & C. 238. ^ See ante, p. 608. ^ Salmon v. Dean, 3 Mac. & Gor. 345. OF THE GENERAL NATURE OF PLEAS. 643 states circumstances which have arisen within the time of limita- tion, by which his claim has been admitted or revived. In such cases the defendant must answer as to all the circumstances so stated.^ And so where a plaintiff, in order to avoid the effect of a plea of purchase for valuable consideration, without notice, states, in his bill, matters the effect of which would be to show that the defendant had notice of the plaintiff's title, the defendant must answer as to such facts. The same rule applies to all cases of a similar description. Thus, if a bill be filed for the specific performance of an agree- ment, to which (if not in writing) the Statute of Frauds would be a bar, it is usual, in order to avoid a demurrer, to state the agreement to be in writing ;2 and, when it is so stated, it is neces- sary 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 as evidence of the agreement having been in writing, those collateral facts must also be an- swered.* 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 up ; but the rule applies to all cases where matter is stated in the bill which, if true, would negative the plea, whether stated incidentally or in anticipation of any expected de- fence.^ * Bayley v. Adams, 6 Ves. 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 circumstances charged in the bill, and which in Ecjuity may avoid the statute. Goodrich v. Pendleton, 3 John. Ch. 384 ; Bloodgood v. Kane, 8 Cowen, 3G0 ; Lingan v. Henderson, 1 Bland, 282 ; Moreton v. Harrison, 1 Bland, 393 ; Bolton v. Gardner, 3 Paige, 273. So the answer must deny all the charges in the bill, which may avoid the bar by showing a new promise. Chapin v. Coleman, 11 Pick. 331. * Whitchurch v. Bevis, 2 Bro. C. C. 559. See Walker v. Locke, 5 Gushing, 90. ' Ibid. 556; see also INIorrison v. Tumour, 18 Ves. 175 ; Spurrier v. Fitzger- ald, 6 Ves. 548. Where the defendant in a suit for specific performance, pleads the Statute of Frauds, and answers, admitting the contract, the answer overrules the plea. Episcopal Church v. Leroy, Riley Ch. 156, per Johnson Ch. But see Ash V. Daggy, 6 Ind. 259. * Evans v. Harris, 2 V. & B. 361. ' Crow V. Tyrrell, 2 Mad. 409 ; Baillie v. Sibbald, 15 Ves. 185 ; Roche v. Mor- gell, 2 Sch. & Lef. 721 ; Jones v. Davis, 16 Ves. 262. 644 PLEAS. Some doubt may be entertained as to the manner in which the rules concerning answers in support of pleas are affected by the recent change in the general practice, to the effect that a defend- ant is not bound to answer any portion of the bill to which he is not specially interrogated by a separate document filed subsequent to the bill. Two decisions ^ on pleas of this description have taken place recently, from which it may be inferred that the same rules are in all material respects still in force. It will be necessary, therefore, shortly to state these rules, with this additional observa- tion, that answers in support of pleas must be distinguished from negative averments,^ and that there is clearly nothing in the change of practice to affect the former rules, so far as they relate to negative averments. Before the recent changes there was authority for the proposi- tion, that a plea might be good although it was not supported by an answer to statements in the bill of the description referred to, provided that the defendant's attention was not called to them by some specific allegation.^ With regard to strictly negative pleas, the rule was laid down by Sir John Leach in a case of Tln-ing v. Edgar,'^ a case which was once the subject of much discussion and considerable interest, but which is now of little consequence except as a memorial of the ingenuity of former times. The rule in Thring v. Edgar is this, viz., that where a defendant pleads a negative plea denying the plaintiff's title, such plea is a full bar, unless tlie plaintiff has sought a discovery of circumstances by which the existence of his right can be established ; but, in order that a defendant may know what the particular discovery which the plaintiff requires from him is, it is incumbent upon the plaintiff' distinctly to call his attention to it in his bill. This rule, however, was strictly applicable to tieg-aliue pleas onli/, and to the form in which a discovery is to be required by the plaintiff as to matters covered by such pleas. But although a defendant pleading a negative plea exonerates himself from answering to any fact to which the plea extends, yet, as the plaintiff has a right to a discovery, from the defendant, of all matters necessary to support his case, he has, consequently, ^ Hunt V. Peurice, 19 Beav. 525 ; Young v. Wliite, 17 Beav. 532. « Denys v. Locock, 3 M. & C. 234. * Pennington v. Beeoliey, 2 S. & S. 282. * Wigranion Discovery, 169. OF THE GENERAL NATURE OF PLEAS. 645 always had a right to compel the defendant to answer specifically to all the facts stated in his bill, to which he considers it necessary to require an answer, in order to enable him to make out his claim by means of the evidence which may be afforded by the de- fendant's admission. Thus, if a bill were to be filed, alleging a partnership, and insisting that the existence of such partnership was made out by certain documents or by settlements of accounts and admissions, it would not be sufficient to plead to such a bill a mere denial of the existence of the partnership,^ he must go fur- ther, and answer as to all the circumstances insisted upon as evi- dence of the partnership.^ There is nothing in the change of practice to prevent the plaintiff still possessing this right of dis- covery from the defendant. lu the case of Thring v. Edgar the plea was overruled solely upon the ground that the accompanying answer extended to facts not charged as evidence to rebut the matter of the plea ; but it ap- pears 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 objection has since been made the subject of comment by Lord Cottenham, in the case of Denys v. Locock,^ where he held that it was fatal to the validity of a negative plea. The equity of the bill depended upon an alleged promise ; the object of the neg- ative plea was to deny the fact that this alleged promise was ever made ; upon this Lord Cottenham observes, the plea negatives the allegation of the promise. " What I particularly observe upon is that, first, it takes out of the bill the allegation of the promise, and then denies it. Now I apprehend 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 ad- mits the truth of the bill, but states some matter dehors, which destrovs the effect of the allegation, and which, assuming the alle- gation to be true, would be a defence. A negative plea, however, is a mere traverse of that which constitutes the plaintiff's title. Now to traverse that which is not alleged on the face of the bill, — to take out of the bill an allegation, and then by plea to negative > Evans v. Harris, 2 V. & B. 361 ; Sanders v. King, Mad. & Geld. Gl ; see also Yorke V. Fry, ibid. 65. « Sec Innes v. Evans, 3 Edw. Ch. 454 ; Everitt v. Watts, 3 Edw. Ch. 486. « 3 M. & C. 234. 646 PLEAS. 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. Now, 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 lie to be tried ? It would be an issue taken on the traverse only, on the negative of that whicli nobody has affirmed." This brings us to the consideration of the cases in which it is necessary that a plea should be accompanied by an answer, as to deeds, papers, and other documents charged by the bill to be in the defendant's possession, custody, or power.^ The necessity for such an answer must generally depend upon the nature of the in- dividual case ; so far, however, as the matter is susceptible of a reduction into rules, the following may be stated as those by which the subject is regulated : — 1. Wlicre a bill states a case for the plaintiff, and charges that the defendant has in his possession documents from which the matters in the bill would appear, and the defendant pleads a pure affirmative plea, not denying any part of the plaintiff's case, he will not be required to answer as to the possession of the docu- ments, because the documents beijig only cliarged in the bill to be of importance, as proving the plaintiff's case, which the defendant by his plea does not controvert, the production of the documents would be unnecessary.^ 2. It is evident from the above case, that if the bill had con- tained any allegation of a promise within six years, the V. C. of England would have held, that the charge as to the documents ought to have been answered. Wherever the bill states or charges any facts which are inconsistent with the defendant's plea, or which would take the plaintiff's case out of the operation of it, and charges that the defendant has in his possession documents from which the matters in the bill mentioned would appear, then it will be necessary to accompany the plea by a discovery of the documents in the defendant's possession. But, although the general rule is, that a charge that the defend- ant has documents in his possession, from which the matters in the bill stated would appear, must be answered whenever there are 1 See Story Eq. PI. § 683. ^ MaoGregor v. East India Company, 2 Sim. 452. OF THE GENERAL NATURE OF PLEAS. 647 facts stated or cliarged in the bill which are inconsistent with the plea ; yet, it will not be applied to those cases where the bill mis- states the effect of deeds which form the substance of the plea, and are stated in it. Thus, where a plaintiff claimed as heiress-at-law of a person who had devised real estates to 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 plain- tiff, was still entitled as right heir of the original testator, and that it would so appear if the defendant would produce the deeds cre- ating the tenant to the prwcipe, 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 the plaintiff had no title ; the plea was held by Sir J. Leach, V. C, to be good, although not supported by an answer as to the deeds, Plunkett V. Cavendish, 1 R. & M. 713. " Hardman v. Ellames, 2 M. & K. 744. 648 PLEAS. plea, by reading from it any facts or admissions which may nega- tive the matters pleaded or averred in the plea.^ But, although an answer in support of a plea is required to be full and clear, yet, 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 an- swered.2 In such cases, however, the plaintiff is not precluded, by the circumstance of the Court having hold, upon the argument of the plea, that the charges in the bill are sufficiently denied to ex- clude intendment against the pleader, from afterwards excepting to the sufficiency of the answer on any point in which he may think it defective.^ He may also obtain leave to amend his bill, and thereby obtain an answer to any matter which may not have been so extensively stated or interrogated to as the case would warrant, or to which he may apprehend that the answer, though full in terms, may have been, in effect, evasive.* It is to be observed, that the cases above referred to, as requiring that a plea should be accompanied 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 overruling the plea ; there are cases, however, in wliich, even though no equitable circumstances are alleged in the bill to defeat the bar offered by the plea, when, in fact, a pure plea may be pleaded, yet the defendant may sup- port his i)loa by an answer touching matters not charged in the bill.^ Thus, in the case of a plea of purchase for valuable consid- eration, a defendant may deny notice in his answer as well as in his plea ; because, by so doing, he does not put anything in issue which he would cover by his jilea from being put in issue.^ A defendant may also, by this means, put upon the record any fact which tends to corroborate his plea, so as to enable him after- wards to prove it. An answer of this sort is termed an answer 1 Hildyard v. Cressy, 3 Atk. 303 ; Hony v. Hony, 1 S. & S. 569. a Lord Red. 299 ; Waters v. Glanville, Gilb. Rep. 184; 3 Bro. P. C. 373. The only way of testing the sufficiency of an answer in support of a plea is, to con- sider everv allegation in the bill which is not sufficiently denied by the answer, as true ; and then to inquire, whether these facts being admitted, the plea is a suffi- cient bar to the claim of the plaintiff for relief. Bogardus v. Trinity Church, 4 Paige, 178, 197. • 3 Lord Red. 299. * Ibid. 245. * Lord Red. 299 ; Beames on Pleas, 77. « For. Rom. 58. OF THE DIFFERENT GROUNDS OF PLEAS. 649 in aid or in suhsidium of tlie plea, and differs from what is usually termed an answer in support of a plea in being an answer which the defendant is not obliged to put in for the purpose of avoid- ing the effect of any equitable ground which may be alleged in the bill for avoiding the bar offered by the plea. Section II. Of the different Grounds of Pleas. A PLEA may be either to the relief or to the discovery, or to both. If it is a good plea to the relief, it will be also good to the discovery,^ in the same manner that a demurrer, whicli is valid as to the relief prayed, is, as has been already mentioned, good to the discovery sought by the bill.^ Pleas in Equity to the relief prayed by the bill have usually been ranged under the heads of pleas: 1. To the jurisdiction; 2. To the person of the plaintiff or defendant ; and 3. In bar of the suit. This arrangement is the one recognized by Lord Redcsdale and Sir George Cooper ; but the learned author of the " Treatise on tlie Elements of Pleas in Equity " has added another head of plea to those before enumerated, viz., pleas to the bill. It appears to be the opinion of Mr. Beamcs, that j)leas 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 suffi- ciency of the process, rather than deny tlic cause of action ; the latter dispute the very cause of action itself." ^ At Law, the dis- tinction is important, with reference to the conclusion of the plea ; but in Equity there is not this difference between a plea in abate- ' See Story Eq. PI. § 312. Where the defendant wishes to avoid a full dis- covery, on the ground that there is a fact which defeats the plaintifl's equity, he must allege such fact by plea. Weisman v. Heron Mining Co. 4 Jones Eq. (N. C.) 112. * Ante, p. 5G9. But in order that it may be good as to the discovery, it must not be in terms confined to the reli'ef. King v. Heminjr, 9 Sim. 59. ' Beamcs on Pleas, 58. VOL. I. 55 650 PLEAS. meiit and a plea in bar. The office of a plea in Equity being merely to introduce facts which, combined with the bill, destroy the plaintiff's case, or make it defective ; the uniform conclusion of pleas is a submission that a defendant is not bound to put in any further or other answer. In the following observations, there- fore, the distinction of pleas into pleas of abatement and pleas in bar will not be further noticed, but the different grounds of pleas will be offered to the reader according to the arrangement adopted by Mr. Beames. Before we proceed, however, to a more minute discussion of pleas, according to the above distribution, it will assist the reader to point out in what respect pleas of each class differ from those of the other classes, and this will be done as briefly as possible in the words of tlie learned writer himself: — I. '• Those pleas which are commonly called pleas to the juris- diction do not proceed the length of disputing the right of the plaintiff in the subject of the suit, or allege any disability on the part of the plaintiff to prosecute the suit, but simply 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 which are made the subject of the suit, or deny that the Court has jurisdiction over them ;^ but they assert tliat the plaintiff is inca- pacitated to sue, or that the defendant is not the person who ought to be sued." III. Tiiose pleas in Equity, also, which Mr. Beames distin- guishes as pleas to the bill, " do not not dispute the validity of the right made the subject of the suit, or contend that the Court has not generally jurisdiction over it, nor do they allege that the plain- tiff is under any disability to sue, or that the defendant ought not to be sued ; but they assert that the suit, as it appears on the record, is defective to answer the purpose of complete justice, or ought not, for some other reason, to proceed." ^ IV. " Pleas in bar may be distinguished from all other pleas, as 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 be sued, and tacitly concede that there are none of those objections to the suit which constitute the grounds of pleas to the bill ; but yet they allege matter, which, if true, destroys the claim made by the ^ Beames on Pleas, 55. * Ibid. 55. 3 Ibid. 59, 60. OF THE DIFFERENT GROUNDS OF PLEAS. 651 suit, and, by showing that the right made the subject of the suit has no existence, or that it is vested in the defendant, they put an eternal end to all litigation respecting it." ^ Having thus stated the leading distinctions between the different classes of pleas above pointed out, we shall proceed to consider the particular pleas to relief under each head. I. Pleas to the Jurisdiction.^ Pleas to the jurisdiction, as we have seen, do not dispute the rights of the plaintiff in the subject of the suit, but simply assert, either: 1. That they are not fit objects of cognizance in a Court of Equity ; or 2. That the Court of Chancery is not the proper Court to take cognizance of those rights. That these are the only grounds of plea which can be put in to the jurisdiction seems to be generally admitted ; for it is clear, that a plea that the subject of the suit is not cognizable in any municipal Court of justice what- ever could not prevail ; because such a plea would amount to noth- ing more than that the subject of tlie suit is one upon which no action or suit can be maintained, which is, in cITect, a plea in bar, not a plea to the jurisdiction of a particular Court, but of all Courts, which would be absurd and repugnant in tcrms.^ 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 ' Beames on Pleas, 62, 65. • In case of a bill brought in a Court of Equity of a limited jurisdiction, as to persons, or as to subject-matter, if the bill should allege all the necessary facts to establish and support that jurisdiction, the defendant may also negative the exist- ence of those facts by a plea to the jurisdiction. Story Eq. PI. § 720. If, in the Courts of the United States, there are distinct averments of the citizenship of the plaintifT, and of that of the defendant, upon the record, so that upon the face of the bill the jurisdiction attaches, the defendant, if he means to contest the 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 answer ; 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 I^q. PI. § 721 ; Livingston v. Story, 11 Peters, 351, 393 ; Dodge V. Perkins, 4 Mason, 435. See Bank of Bellows Falls v. Rut. & Bur. R. R. Co. 28 Vermont, 470. » Nabob of Arcot v. East India Company, 3 Bro. C. C. 292, 302, and 1 Ves. jr. 371. 652 PLEAS. 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.i Thus, where a bill was filed to restrain the setting up outstanding terms in bar to an action of ejectment, a plea that there were no outstanding terms was al- lowed ; 2 and so it is presumed, if the jurisdiction were attempted to be founded on the loss of an instrument, a plea showing the ex- istence of the instrument, and that it is in the power of the plain- tiff 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 plaintiff's case, arises principally where the suit is for land witliin a county palatine,* or where the defend- ant claims the privileges of an University,^ or other particular jurisdiction, such as that of the Benchers of the Inns of Court.^ Of this description, also, is a plea that the defendant is an officer of another Court of competent jurisdiction, and, therefore, not to be drawn from his duties in that Court for the purpose of defend- ing a suit in another.' It is a rule that the Court of Chancery, being a superior Court of general jurisdiction, nothing shall be intended to be out of its jurisdiction which is not shown to be so.^ It is requisite, there- 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 has jurisdiction ; ^° and if the plea omits to set forth these particulars, it is bad in point of form.^^ » Lord Red. 222. ' Armitage v. AVadsworth, 1 Slad. 189. * Lord Red. 222. * Ibid. 223 ; see ante, p. 579. ^ Lord Red. 224 ; see Temple v. Forster, Gary, 65 ; Cotton v. Manning, ibid. 73 ; Draper v. Crowther, 2 Vent. 362 ; Stephens v. Berry, 1 Vern. 212 ; Pratt V. Taylor, 1 Chan. Cas. 237. * Cunningham v. Wegg, 2 Bro. C. C. 241. ' See Gibson v. Whitacre, 2 Vern. 83. 8 Lord Red. 224 ; Earl of Derby v. Duke of Athol, 1 Ves. 204 ; 2 Ves. 357. * Lord Red. 224; Nabob of Arcot v. East India Company, 3 Bro. C. C. 291- 301; S. C. 1 Ves. jr. 371. 1" Lord Red. 224 ; Strode v. Little, 1 Vern, 59 ; Earl of Derby v. Duke of Athol, 1 Ves. 202 ; S. C. 1 Dick. 129 ; see Moor v. Somerset, Nels. Rep. 51. " Lord Red. 224 ; Foster v. Vassall, 3 Atk. 587 ; Nabob of Arcot v. The East India Company, ubi supra. OF THE DIFFERENT GROUNDS OF PLEAS. 653 It is also a rule, that a plea to the jurisdiction must show that the particular jurisdiction, alleged to be entitled to the exclusive cognizance of the suit, is able to give a complete remedy.^ A plea, therefore, of privilege of the University of Oxford, to a bill for a specific performance of an agreement touching lands in Middlesex, was overruled, because the University could not give complete re- lief.^ It is to be observed also, that if a suit be instituted against different persons, some of whom are privileged, and. some not,^ or if one or more of the defendants are not amenable to the particu- lar jurisdiction,* a plea will not hold ; ^ and so if there is a partic- ular 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 mort- gagee and mortgagor residing in England, the Court of Chancery •will hold jurisdiction of the cause; for a Court of Equity agit in personam, and may give effect to its decree by constraining the person or property of the defendant till he perform it.*^ It is said, that one plea only shall be admitted to the jurisdiction, and tliat, therefore, if the defendant plead such a plea as is not sufficient in its nature, or plead the matter insufficiently, he will be put to answer.' We have before seen, that an objection on the ground of juris- diction must be taken either by demurrer or plea, before answer, otherwise the Court will entertain the suit, although the defendant may object to it at the hearing, unless it is in a case in which no circumstance whatever can give the Court jurisdiction.^ ' Lord Red. 224 ; Newdigate v. Johnson, 2 Chan. Cas. 1 70 ; Wilkins r. Chal- craft, 22 Vin. Ab. 10; Green v. Ruthei-forth, 1 Ves. 463. * Draper v, Crowther, 2 Vent. 3G2 ; Stephens v. Berry, 1 Vern. 212. * Lowgher v. Lowgher, Gary, 55 ; S. C. 22 Vin. Ab. 9 : Fanshaw v. Fanshaw, 1 Vern. 246. * Grigg's case, Hutton, 59 ; 4 Inst. 213 ; Hilton v. Lawson, Gary, 8, * I^rd Red. 225. * Lord Rcid. 225 ; Toller v. Carteret, 2 Vern. 494 ; see also Earl of Derby v. Duke of Athol, 1 Ves. 204 ; Lord Granstown v. Johnson, 3 Ves. 170, 182. ' Prac. Reg. 275. * Ante, p. 579. 55* 654 PLEAS. II. Pleas to the Person. Pleas to the person, like pleas to the jurisdiction, do not neces- sarily dispute the validity of the rights which are made the subject of the suit, but object to the plaintiff's ability to sue, or the de- fendant's liability to be sued respecting them. They are generally divided into such as regard the person of the plaintiff, and such as regard the person of the defendant. I. Of the former kind are pleas of, — 1. Alienage ; ^ 2. Outlawry ; 3. Attainder; 4. Infancy; 5. Coverture; 6. Idiotcy or lunacy; 7. Bankruptcy 2 or insolvency; to which may be added, 8. Pleas that the plaintiff does not sustain the character he assumes.^ All the above grounds of objection to the person of the plaintiff, ex- cept the last, have been before discussed.^ With respect to the last, it is to be observed, that the plea may either deny the exist- ence of the person iu whose behalf the bill has been exhibited, or of the character in which the plaintiff affects to sue ; or it may show that for some reason, not disclosed 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 sev- eral plaintiffs, is a fictitious person,*^ or was dead at the time of commencing the suit.' And so if a plaintiff files a bill stating himself to sue as administrator, a plea that he is not administrator will be good.^ And where a plaintiff entitled himself as admin- istrator, and the defendant pleaded that the supposed intestate was living, the pica was allowed.'-^ A plea that the plaintiff is not heir 1 A plea of " alien enoniy " is suflkiently answered by a treaty of peace made after it was filed ; and there is no need for the plaintiff to reply that fact ; the Court is bound to notice it ex officio. Johnson v. Harrison, Litt. Sel. Cas. 226. - The objection that the plaintiff is bankrupt, and his assignee not a party, should be taken in limine by way of plea, and cannot be insisted on to avoid ex- ceptions taken by the plaintiff to the answer. Kittredge v. Claremont Bank, 3 Story C. C. 591. 3 Story Eq. PI. § 722 et seq. * Ante, Chap. III. 5 Story Eq. PI. § 727. 6 Cowp. Eq. PI. 249, cites Com. Dig. Abatement, E. 16 ; Bac. Ab. Abatement, F. 1, 302 ; Gilb. P. C. 248 ; Chitty Prac. PI. 435. ' Ibid, cites Bac. Ab. Abatement, L. ; Com. Dig. Abatement, E. 1 7 ; Chitty's Prac. PI. 436. 8 Winn I'. Fletcher, 1 Vern. 473; Simons r. Milman, 2 Sim. 241; see ante, p. 327. ' Ord V. Huddleston, 2 Dick. 510, cited 1 Cox, 198. OF THE DIFFERENT GROUNDS OF PLEAS. 655 to the person under whom he claims as heir, has also, as we have seen, been considered a good plea.^ In like manner a plea, that the plaintiff is not a partner, or a creditor, has been allowed to a bill filed by a person claiming in one of those characters.^ Upon the same principle if, from any circumstance not stated in the bill, it can be shown that nothing ever vested in the plaintiff, or that the title which the plaintiff had has been transferred to another, the defendant may show the cir- cumstance by way of plea. 11. Pleas to the person of the defendant are more limited than those to the person of the plaintiff; for it seems to be a rule at Law, that persons who are disabled to sue, cannot plead their own disabilities, when they are themselves sued.^ This rule is equally applicable to proceedings in Courts of Equity, in all cases where the suit seeks to compel the performance of a duty by the party. It will not, however, apply to cases where the proceeding is in rem, and the disability is of such a nature that, besides the per- 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- lawed or attainted of treason or felony may state their outlawry or attainder to the Court by way of plea, for the purpose of showing that whatever interest they had in the property is vested in the Crown ; ^ in the same manner that bankrupts or insolvent debtors may, if sued respecting property which has become vested in their assignees, plead their bankruptcy or insolvency in abatement of the suit.'' In fact such a plea amounts to no more than a plea of want of interest in the subject-matter of the bill. The rule, that a person who is under disabilities cannot plead his own disqualification, will not extend to cases where the dis- qualification is only partial ; thus it seems that a woman, sued as a feme sole, may plead that she is coverteJ > See Bourke v. Kelly, 1 Hogan, 172 ; Gleason v. Cook, 1 Ilogan, 297 ; Story Eq. PI. § 727. It seems formerly to have been doubted, whether it was not necessary in such cases to state in the pica who was the heir at law, but it seems now to be established that such a statement is unnecessary. Jones v. Davis, 16 Ves. 264, 265. » Drew V. Drew, 2 Ves. & B. 159. » Beames on Pleas, 122; Story Eq. PI. § 722, 727. ♦ Turner v. Robinson, 1 S. & S. 3. * Ante, p. 172. • Turner v. Robinson, supra ; Story Eq. PI. § 732. ' Beames on Pleas, 130 ; Story Eq. PI. § 732. 656 PLEAS. A defendant may also plead that he is not the person he is al- leged to be, or does not sustain the character he is stated to bear, such as heir, executor, or administrator.^ He may likewise show, that he is not sole heir, executor, or ad- ministrator, and that others are joined with him in those capaci- ties ; ^ such a plea, however, partakes more of the nature of a plea for want of parties than of a plea to the person. If a defendant has not that interest in the subject of a suit •which can make him liable to the demands of the plaintiff, and the bill alleging that he has or claims an interest, avoids a demurrer, he may plead the matter necessary to show that he has no interest.^ 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 pretence of in- terest by the defendant ; though a demurrer for want of interest •was overruled, because it admitted the truth of the charge to the contrary in the bill, yet the Court expressed an opinion that the defence might have been made by plea.^ It is to be observed, that a pica of want of interest in the defend- ant is proper only where the case is such that he cannot satisfy the suit by general disclaimer.^ III. Pleas to the Bill. 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 insuflficient to answer the ob- ject.*5 1. Where a bill seeks relief, a defendant may plead that there is another suit already depending, in this or in another Court of 1 Lord Red. 234 ; Story Eq. PI. § 732. * Beames on Pleas, 130. » Lord Red. 235. * Plummer v. May, 1 Yes. 426; Story Eq. PI. § 734; see also Cartwright v. Hately, 3 Bro. C. C. 239 ; S. C. 1 Yes. jr. 293. * Lord Red. 235. * See Story Eq. PI. § 735. OF THE DIFFERENT GROUNDS OF PLEAS. 657 Equity, for the same matter.^ This plea corresponds with the exceptio litis pendentis of the civilians, and is analogous 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, it is not requisite that the second suit should be for the whole matter embraced by the first,^ it is how- ever requisite that the whole effect of the second suit should be attainable in the first \^ and if after the plea has been set down for argument it appears upon the face of the plea that this is not the case, the Court will at once overrule the plea.^ It sometimes, however, happens, that the second bill embraces the whole subject in dispute more completely than the first ; in such cases the prac- tice has been 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 filing of tlie second.^ * Lord Red. 246 ; Coop. Eq. PI. 272; Beames on Pleas, 134; Orders in Cha. ed. Beames, 26, 1 76. See Johnson r. Bower, 4 Hen. & Munf. 487; Curd v. Lewis, 1 Dana, 352; Cummins v. Bennet, 8 Paige, 79; Story Eq. PI. § 737; Matthews v. Roberts, 1 Green Ch. 338 ; Cleveland, &c. R. R. Co. v. City of Erie, 27 Penn. State, 380; Simpson v. Brewster, 9 Paige, 245; Brice v. Mallett, 2 Hayw. 244. A plea of another suit pending should be taken before the hearing, and it can only be a good objection when the first suit is between all the same parties, and a full decree can be therein had. Ilartell v. Van Buren, 3 Edw. Ch. 20. * Beames on Pleas, 134 ; Coop. Eq. PI. 272; Long r. Stovie, 9 Hare, 542. ' Moor V. Welsh Copper Company, 1 Eq. Ca. Ab. 39. The plaintiff in a bill in Equity to redeem, set out the mortgage, an entry by the defendant after part of the sum secured had become due, and a tender, and prayed to be restored to his title and possession, and pending the suit, he brought another similar bill, but stating an additional tender made after the whole sum had become due. To this bill the defendant pleaded the pendency of a former suit for the same matter, and the plea was sustained with costs for the defendant, on the ground that the two bills were substantially founded on the same matter. Saunders v. Frost, 5 Pick. 275, 276. Wilde J., in this case said, " It is a sufficient objection to the present bill, that it is founded on matters set forth in the former bill, to which the defendant would be again bound to answer, if the plaintiff were permitted to proceed." It was also held in this case, that the new right acquired by the plain- tiff while the first suit was pending, was proper matter for a supplemental bill, but not for an original bill. lb. See Mann v. Richardson, 21 Pick. 259. * Law V. Rigby, 4 Bro. Cha. Ca. 60 ; Pickford v. Hunter, 5 Sim. 122. ' Pickford v. Hunter, uhi supra. * Crofts V. Wortley, 1 Cha. Ca. 241 ; Lord Red. 248. 658 PLEAS. A plea of another suit depending will be good, whether the other suit be in this or any other Court of Equity in England ; ^ it will not, however, be a good plea, if it is depending in a Court in another country ; ^ therefore, such a plea will not prevail where the suit already depending is in Ireland,^ or in the colonies.* Where the original suit has been commenced in a Court of infe- rior jurisdiction, the plea will not be good if the defendant has avoided the effect of the suit, by going out of the jurisdiction of that Court.^ A suit pending, to afford a good ground for a plea in Equity, must be a suit in a Court of Equity : and, therefore, where an in- fant 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 is not the same security for an infant's advantage in the Ecclesiastical Court as in Chancery.*^ If a plaintiff sues a defendant at the same time and for the same cause at common Law and hi Equity, the defendant, after full an- swer i)ut in, must apply to the Court for an order that the plain- tiff may make his election where he will proceed, and cannot plead the pendency of the suit at common law in bar of the suit in Equity.'' In Royle v. Wynne,^ Lord Cottenham thus stated the ' Lord Red. 246. Where two Courts have concurrent jurisdiction, the fact tliat an appeal lies from one to the other, will not authorize a proceeding in the a])pc'llate Court, pending an action for the same cause in the Court below. Cleve- h\nd, &c. R. R. Co. V. City of Erie, 27 Penn. State, 380. * The mere pendency of a suit in a foreign Court, or in a Court of the United States, cannot be pleaded in abatement or in bar to a suit for the same cause in a State Court. Mitchell r. Bunce, 2 Paige, 606 ; Salmon i\ AVooton, 9 Dana, 423. But see Hart v. Granger, 1 Conn. 154. ' Lord Dillon v. Alvares, 4 Vc5. 357. * Foster v. Vassall, 3 Atk. .587; see also Bayley v. Edwards, 3 Swanst. 703; Ostell V. Lepage, 5 De G. & Sra. 103. ^ Lord Red. 246. « Howell V. Waldron, 2 Ch. Ca. 85. . ' Lord Red. 249 ; Jones v. Earl of Strafford, 3 P. Wms. 90 ; see Story Eq. PI. § 741, 742. ® -Cr. & Ph. 252 ; for more on the subject of election to proceed at Law or in Equity, see Order 55 and Order 16, Arts. 20 and 21, of May, 1845; Fennings V. Humphrey, 4 Beav. 1 ; Leicester v. Leicester, 10 Sim. 87; Mousley v. Bas- nett, 1 V. & B. 382, note ; Fitzgerald v. Sucomb, 2 Atkins, 85 ; Countess of Ply- mouth V. Bladon, 2 Vern. 32 ; and Orders of November, 1850. OF THE DIFFERENT GROUNDS OF PLEAS. 659 general principles concerning election, — "Applications to restrain a party from proceeding in two different Courts at the same time, for the same cause of suit, are of two kinds. In cases of election, properly so called, the application is, that if the plaintiff elects to proceed at Law, his bill may be dismissed ; ^ and the order upon that motion is not within the discretion of the Court. But there is another class of cases which are not, properly speaking, cases of election, where the proceeding at Law is ancillary to that in Equity; there the form of the application is diiferent, — that if the plaintiff shall elect to proceed at Law the suit may be stayed ii^ the mean time, for in those cases the Court has a discretionary power to move the proceedings with a view to its own decree, and for that purpose may retain the bill until the action shall have been disposed of" There are cases 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 former 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 whicii suit is most for the infant's benefit, without re- quiring the defendant to plead the pendency of another suit.- In the case, also, of creditors or legatees suing an executor or administrator, after a decree for an account at the suit of other creditors, the Court will, upon motion by the defendant, stay the proqpedings in the second cause, without requiring him to plead the pendency of the first suit ; ^ but, although that may be a proper course to be adopted, wl)ere the plaintiff in the second cause lias not made himself quasi a party to the first, by going in to prove ' Livingston v. Kane, 3 John. Ch. 224 ; Sanger v. Wood, ibid. IIG ; Rogers v. Vosbur^, 4 John. Ch. 84 ; Gibbs v. Perkiuson, 4 Hen. & IMunf. 415. Where the remedies at Law and in Equity are ineonsistent, any decisive act of the party, with the knowledge of his rights and of the facts, determines his election. Sannfer v. Wood, 3 John. Ch. 416, 42L So if he neglects to make his election in proper time. Conover v. Conover, 1 Sa.xton, N. J. 403, 409 ; Rogers v. Vosburg, 4 John. Ch. 84. He need not make his election until after defendant has answered. Conover v. Conover, 1 Saxton N.' J. 409. • Ante, p. 69. ' Paxton V. Douglas, 8 Ves. 520. The same rule applies to a creditor suing ia a foreign Court. Graham v. Maxwell, 1 ]\Iac. & Gor. 71 ; IM'Laren v. Stainton, 16 Beav. 284 ; Ratcliffe v. Winch, 16 Beav. 576. 660 PLEAS. his debt under the decree, there can be no doubt that either course is open to the defendant,^ and that, in some cases, that of a plea may be most advantageous to him.^ 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 property to another, who files an original bill touching the part so purchased by him, a plea of the former suit depending, touch- ing the whole property, will hold, although filed by a different plaintiff.^ A cross bill, although between the same parties as an original suit, cannot be met by a plea of this nature ;* and it seems such a plea will not lie in any case where a decree, dismissing the original suit, would not be a bar to a new proceeding ; thus where a plain- tiff mistook his right, and being the executor of an administrator conceived himself to be the personal representative of a deceased person, and filed a bill in that capacity, but afterwards, finding that he did not properly 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 Hardwickc ;^ 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 her 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 what has been before said, it is obvious that it is necessary to the validity of a plea of a former suit depending, that it should contain a distinct averment tliat 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 consid- » Pickford V. Hunter, 5 Sim. 122. ^ See Miers v. Zanesville & Maysville Turnpike Co. 11 Ohio, 273. « Lord Red. 248 ; Moor v. Welsh Copper Company, 1 Eq. Ca. Ab. 39 ; Durand r. Hutchinson, cited Lord Red. 248; and see Rankin v. Harwood, 2 Ph. 22; Story Eq. PI. § 740. * See Story Eq. PI. § 400. ^ Huggins V. York Buildings Company, 2 Atk. 45 ; Story Eq. PL § 739. • Ante, p. 104. OF THE DIFFERENT GROUNDS OF PLEAS. 661 ered as bad in point of form, and was overruled upon argument.^ The plea must also aver that there have been proceedings in the suit, as appearance or process requiring appearance at the least.^ It seems likewise 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 averred.^ A plea of a former suit depending, being clearly a good plea, if true, the usual course of the Court is not to argue the plea, but for the plaintiff to apply to the Court to direct an inquiry into both suits, and to report whether or not they are for tlie same mat- ter;^ and it has been held, that if, instead of taking that course, the plaintiff sets down the plea for argument, 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, how- ever, the plaintiff considers the plea defective in form, he may set it down for argument.' In the case of Joiies v. Sogueira^ the plaintiff, instead of obtaining a reference of a plea of this kind, filed a replication, and served a subpoena to rejoin ; whereupon the defendant, after the expiration of a month from the filing of the plea, moved upon notice, that tlie bill might be dismissed with costs, and an order to tliat effect was made by Lord Lynd- * Lord Rod. 246 ; Devie v. Lord Brownlow, 2 Dick. Gil, S. C. But in Mc- Ewen r. Broadhead, 3 Stoc-kt. (N. J.) 131, 132, the Chaiuellor, in givin"- judor- ment, said : '' But, if the facts stated in the plea plainly show that the second suit is for the same subject-matter as the fii-st, I can see no reason why it should be held necessary that there should be an express averment to that effect. It would be accurate and correct pleading to make the averment, but accuracy may demand what is not required as absolutely necessary. The Courts are not as much inclined to regard mere technicality in pleading as they were thrcQ quar- ters of a century ago." And he held a plea of another suit pending, might be good, though it did not contain that averment. » Lord Red. 247, » Ibid. * Urlin V. Hudson, 1 Vern. 332. > Foster v. Va.ssall, 3 Atk. 587 ; Story Eq. PI. § 737. * Beames's Orders, 176, 177; L^rlin v. Hudson, ubi supra; anon., 1 Ves. jr. 484. " The correct practice is a reference to a Master." McEwen v. Broad- head, 3 Stockt. (N. J.) 132. If the defendant takes the objection by answer instead of plea it seems that he will not be allowed his costs, althoun-h the in- quiry be answered in his favor. Long v. Storie, 9 Hare, 542. ^ See McEwon v. Broadhead, 3 Stockt. (N. J.) 132. ' 1 Ph. 83 ; and see Lucas v. Holder, 1 Eq. Ca. Ab. 4. VOL. I. 56 662 PLEAS. hurst, on appeal, who moreover was of opinion, that the applica- tion ought to have been made by a motion of course.^ If upon such an inquiry it appears to the Court that both suits are for the same matter, the plea is allowed ; but if otherwise, the plea will be overruled. As the pendency of a former suit, unless admitted by the plain- tiff, is made the immediate subject of inquiry, a plea of this kind is not put in upon oath.^ The question of necessary parties to a suit has been before so fully discussed, and the very great latitude given by the present practice has been explained, so that it is unnecessary to enter any further into the subject in this place. It is merely requisite to remind the reader, that when the defect is not apparent upon the face of the bill, it may be pointed out to the Court by plca.'^ lY. Pleas in Bar. Whatever shows that there is no riglit which can be made the subject of suit, or whatever is a complete and perpetual bar to tlie right sued for, may constitute tlie subject of a plea in bar ; or, as it is expressed in a work on Pleadings at Law, " Whatever de- stroys the plaintiff's suit, and disables him forever from recover- ing, may be pleaded in bar." * * See Story Eq. PI. § 743, 744. Where upon such plea, the defendant obtains the Master's report in favor of the truth of the plea, he cannot have an order to dismiss the plaintiff's bill on motion. But he must bring the case on to be heard upon the plea and the ^Master's report, to enable the Court to decide, upon the validity of the pica. Hart v. Phillips, 9 Paige, 293. 3 Urlin i;. Hudson, 1 Vern. 332 ; Lord Red. 24 7. It is not very distinctly ex- pressed 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 sufficiently evident when we consider that the pendency of it must be apparent from its own proceedings, of which the Court always takes notice, without further evidence ; but with respect to proceedings in another Court, (unless they are in the state of perfect records, which can hardly be the case when the suit is still pending,) the fact of the pending of the suit must be established by evidence upon oath in the usual manner. 3 Story Eq. PI. § 745, 745 a, and notea. * Beames on Pleas, 160. OF THE DIFFERENT GROUNDS OF PLEAS. 663 Pleas in bar are usually ranked under the heads of, — 1st, Pleas of Acts of Parliament ; 2d, Pleas of Matters of Record, or as of Record, in the Court itself, or some other Court ; and 3d, Pleas of Matters in pais} Any statute, public or private, which may be a bar to the de- mands of the plaintiff, may be pleaded, with the averments neces- sary to bring the case of the defendant within the statute, and to avoid any equity which may be set up against the bar created by the statute.^ Amongst other statutes, which may be thus set up in bar of the 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 Statutes of Limitations ; and the statute which, until recent enactments, afforded the most ordinary ground for pleas of this sort was the 21 Jac. I. c. 16.^ By that Act, sect. 1, it is enacted, that all writs of formedom must be sued out, and all entries into lands by persons having a right of entry must be made, within twenty years next after the title to the person suing out the writ or making the entry accrued ; and, by sect. 3, all actions upon the case, (otherwise than for slander,) or for account, (other than such accounts as concern the trade of merchandise, between jnerchants and merchants, their factors or ser- vants,) and all actions for trespass, debt, detinue, replevin, &c., and the action of trespass quare clausinn freg-it, were to be commenced 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, lias, nevertheless, been considered as available as a bar to suits in Equity for analogous purposes, in cases where they were not commenced within the period limited by the above sec- tion;* therefore, where a plaintiff's right to lands had accrued * Beamea on Pleas, 160; Coop. Eq. PI. 251. The arrangement adopted by Lord Redesdale is somewhat ditrcrent. See Lord Red. 236. » Ibid. 274. * See also 9 Geo. IV. c. 14. * See Lord Red. 260, and nnfix : Coop. Eij. PI. 251, and nolis ; Bcames on Pleas, 161, and nolis. The rule in Courts of E^quity now is, that they will take notice of the Statute of Limitations, and apply it in the same manner as courts of law. Conover v. Conover, 1 Saxton (N. J.), 403. See notes, ante, 585, 586 ; Story Eq. PI. § 751, el seq. ; Miller v. Mclntire, 6 Peters, 61 ; Staokhouse v, Barnston, 10 Sumner's Vesey, 453, note (c), and cases cited; Townshend v. Townshend, 1 Bro. C. C. (Perkins's ed.) 555, note (d), and American cases cited ; Watkins v. Harwood, 2 Gill & John. 307 ; Carroll v. Waring, 3 ib. 491. 664 PLEAS. thirty years before the filing of the bill, the Court allowed a plea of the Statute of Limitations to prevail, the plaintiff having been so circumstanced that, although lie could not bring an ejectment, he might liave brought a bill in Equity. And so it has been held, that the Statute of Limitations, 21 Jac. I. c. 16, might be pleaded to a bill to redeem a mortgage, if the mortgagee had been in possession twenty years.^ It has also been held, that the statute may be pleaded in bar to a bill for a discovery, and to prevent the setting up of outstanding terms in bar to a plaintiff's recovery at Law,^ though such a plea would not hold to a mere bill for a discovery.^ The above statute may also be pleaded to a bill which seeks the payment of a debt, provided such debt be due upon simple con- tract. It appears formerly to have been considered, that although the statute is a bar to the claim of a debt, it would not operate as a bar to the discovery when the debt was due ; for if that had been ^ Lord Red. 271 ; Coop. Eq. PI. 256 ; Beames on Pleas, 162. Now, however, the statute properly applicable to lands, rents, redemption of mortgages, &c., is the 3 & 4 Will. IV. c. 27 ; see post, p. 672 ; Hardy v. Reeves, 4 Sumner's Vesey, 466, note (h), and cases cited ; Story Eq. PI. § 757 ; Acherley v. Roe, 5 Sumner's Vesey, 573, Perkins's note (a), 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 any acknowledgment of the mortgage title, the mortgagor is barred of his redemption. Gates v. Jacolj, 1 B. Monroe, 308 ; Hat- field V. Montgomery, 2 Porter, 58 ; Phillips ;;. Sinclair, 20 Maine, 269 ; Demarest V. Wynkoop, 3 John. Ch. 129. But an acknowledgment of the mortgage title within twenty yeare before 61ing the bill for redemption, maintains the equity of redemjjtion. Hodle v. Healey, 6 Madd. 181 ; Rayner i^. Castlee, ib. 274. As ■where the mortgagee has treated it as a mortgage by keeping accounts, and in other ways. See Glee v. Manhattan Co. 1 Paige, 48 ; Fenwick v. Macey, 1 Dana, 279 ; Hughes v. Edwards, 9 Wheaton, 489 ; Dexter v. Arnold, 3 Sumner, 152 ; Edsell r. 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. Shcpperd v. ^lurdock, 3 Murph. 218. * Jeremy v. Best, 1 Sim. 373. ^ Iliiulman v. Taylor, 2 Bro. C. C. 7 ; Scott v. Broadwood, 2 Col. 447 ; Hamil- ton V. Wood, 3 Edw. Ch. 106. See the remarks upon the case of Hindman v. Tay- lor, cited in support of the text, in Wigram on Discov. (1st Am. ed.) PI. 66 et seq. p. 33 et seq. where the learned author presumes to dissent from the judgment of Lord Thurlow in that case, and cites the authorities which refer to and notice it. See Meudizabel v. Machado, 1 Sim. 68 ; McGregor v. East India Company, 2 Sim. 452 ; Cork i'. Willock, 5 Madd. 331 ; Story Eq. PI. § 821 and notes, in which the author remarks, that the reasoning of Mr. Wigram, dissenting from Lord Thurlow, is very able. OF THE DIFFERENT GROUNDS OF PLEAS. 665 set forth, it "vroiild have appeared to the Court whether the time limited by the statute liad 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.^ Tlie statute 21 Jac. I. c. 16, may also be pleaded to all bills for account, except where 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 received the profits of an infant's estate, and, after six years liad elapsed from his coming of age, the infant brought a bill for an account, the 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 purpose.^ It is to be observed, that, notwithstanding the exception as to merchants' accounts in the third section, it has been held that the ' Lord Red. 269. * Lockey v. Lot-key, Prec. in Chan. 518. Long acquiescence and lapse of time are, by analogy, or in obedience to the Statute of Limitations, a bar to a bill for an account. Acherley v. Roe, 5 Sumner's Vesey, 565, Perkins's note (b), and cases there cited ; Baker r. Riddle, 1 Bald. 304, 418 ; Graham v. Torrance, 1 Ired. Eq. 210 ; Parks v. Rucker, 5 Leigh, 149 ; Rayner v. Pcarsall, 3 John. Ch. 578 ; Bur- ton V. Dickinson, 3 Yerger, 112 ; Drummond v. Duke of St. Albans, 5 Sumner's "Vesey, 439, note (3) ; Andrew v. Wrigley, 4 Bro. C. C. (Perkins's ed.) 125, 138, and notes; 1 Story E(|. Jur. § 529 ; Spring r. Gray, 5 Mason, 527, 528 ; Sher- wood r. Sutton, 5 Mason, 143; Lewis v. Marshall, 1 McLean, 17 ; Raymond v. Simonson, 4 Blackf. 83. See also Randolph v. Randolph, 1 Hen. & Munf. 180 ; Botifear v. Weyman, 1 M'Cord Ch. 161 ; Cave v. Saunders, 2 A. K. Marsh. 64 ; Love I'. "\Miite, 4 Hayw. 211 ; Kingsland v. Roberts, 2 Paige, 193 ; Mooers v. White, 6 John. Ch. 360 ; Ives v. Sumner, 1 Dev. Eq. 338 ; Bertien v. Varian, 1 Edw. 343 ; Farnum v. Brooks, 9 Pick. 212. In Ba:>s v. Bass, 6 Pick. 362, it was held that the Statute of Limitations could not be pleaded to an account " concern- in" the trade of merchandise between merchant and merchant," although none of the items come within six years. See also S. C. 8 Pick. 187 ; Mandeville v. AVil- son, 5 Cranch, 15; Davis v. Smith, 4 Greenl. 339. This subject was ably dis- cussed in M'Lcllan v. Crofton, 6 Greenl. 308, and the same doctrine maintained. See also Chitty Cont. (10th Am. ed.) 909, 910, and notes and cases cited ; Han- cock V. Cook, 18 Pick. 30. In such a case, however, it was thought by Mr. Chan- cellor Kent, that the statute might well be pleaded. Coster v. Murray, 5 John. Ch. 522, 531. So also by Mr. Justice Story, in Spring v. Gray, 5 Mason, 528 ; S. C 6 Peters, 151. See also Union Bank v. Knapp, 3 Pick. 96 ; Jones v. Pen- gree, 6 Sumner's Vesey, 680, note (c). The exception of merchants' accounts does not apply to stated accounts. Toland v. Sprague, 12 Peters, 300. 56* Qm PLEAS. Statute of Limitations will operate as a bar, where the accounts have ceased six years before the filing of the bill.^ In Jones v. Pengree,^ 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 mercliandise within this statute ; ^ and also that a letter of attorney from a merchant to authorize the getting in of debts will not con- stitute the person thereby deputed a merchant within the meaning of the exception.* It may be mentioned, that the exception has been considered as applying only to merchants trading beyond sea, and not to inland merchants ; ^ the clause relating to merchants' accounts, also, is only applicable to cases where there are mutual accounts and reciprocal demands between two persons ; it is inap- plicable to accounts between a tradesman and his customer, and it has been determined that, in such accounts, and in all other where the items are all on one side, the circumstance of the last item happening to be within six years, shall not draw after it those which are of a longer standing.^ In such cases the proper course is, to plead the statute as to all the items ^'hich are within the statute, and -answer as to the rest. The Statute of Limitations, 21 Jac. I. c. 16, cannot be pleaded in bar to a trust ; ' and upon this ground it was held, that a de- » Welford V. Liddel, 2 Ves. 400 ; Crawford v. Liddel, cited 7 Ves. 582 ; Jol- liffe V. Pitt, 2 Vern. 694 ; Bridges v. Mitchell, Gilb. Rep. 224 ; Bunb. 217 ; Bar- ber V. Barber, 18 Ves. 286. The accounts must be " such as concern the trade of merchandise," " between merchant and merchant, their factors and servants." See W. W. Story Contracts, 702 ; Blair v. Drew, 6 N. H. 235 ; Codman v. Rod- gers, 10 rick. 118 ; Spring v. Gray, 5 Mason, 528 ; S. C. 6 Peters, 151 ; Coster V. I^Iurray, 5 John. Ch. 522, 583, 592, 599 ; Chitty's Cont. (10th Amer. ed.) 909, 910, and notes. Unliquidated accounts between merchants in the capacity of principal and factor have been held to be within the exception. Stiles v. Don- aldson, 2 Dall. 264 ; S. C 2 Yates, 105. "- 6 Ves. 580. 8 Sturt V. Mellish, 2 Atk. 612. * Ibid. 5 Sherman v. Withers, 1 Chan. Cas. 152 ; and see Beames on Pleas, 163, n. 3, and the cases there cited. « Coop. Eq. PI. 253 ; Bull. N. P. 149 ; Coster v. Murray, 5 John. Ch. 522 ; Buntin r. Lagow, 1 Blackf. 375 ; Kimball v. Brown, 7 Wendell, 322 ; Ingram v. Sherard, 17 Serg. & R. 347 ; Gold v. Whitcomb, 14 Pick. 188. ' Hollis's Case, 2 Ventr. 341 ; Sheldon v. Wildman, 2 Chan. Cas. 26 ; 2 Freem. 156. OF THE DIFFERENT GROUNDS OF PLEAS. 667 mand upon the separate estate of a married woman was not barred, because all the separate estate of a, feme coverte is a trust.^ Upon the same principle it is held, that where a debtor creates, by his will, a trust or charge for the payment of his debts, such a trust will prevent the statute from operating upon a debt not barred at the time of the creation of the trust.^ But the rule applies only to a trust of real and not of personal estate.^ The principle of the rule, that the creation of a trust for the benefit of creditors will prevent the application of the Statute of Limitations, has been extended to proceedings in bankruptcy where a commission has been held to create a trust for the benefit of creditors, and therefore, it has been determined that, after a com- mission issued, the Statute of Limitations does not prevail against the creditor of a bankrupt.* It has also been held, that where a man has taken advantage of the Act for the Relief of Lisolvent Debtors, the statute will not apply ; and it has been determined that, where a person who had taken the benefit of the Act twice, had died, leaving assets more than sufficient to pay all the debts contracted after his second insolvency, the debts scheduled under his first insolvency were not barred by the statute.*^ A decree for tlie payment of debts, under a creditor's bill for the administration of assets, is also considered as a trust for the bene- fit of creditors, and will, in like manner, 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 may be noticed in this place, that in Ex parte Dewdney,^ it * Norton v. Turvill, 2 P. Wms. 144. • Burke v. Jones, 2 V. & B. 275, and the cases there referred to; Hughes v. Wynne, 1 Turn. & Russ. 307 ; Ilargreaves v. Michell, 6 Mad. 326 ; Rendell v. Carpenter, 2 Y. & J. 484 ; Jones v. Scott, 4 CI. & Fin. 382 ; see also Freaks v. Carnefield, 3 M. & C. 499. * Jones V. Scott, ubi supra ; Lyon v. Colville, 1 Coll. 449. ♦ Ex parte Ross, 2 Glyn & J. 46. ' Barton v. Tattersall, 1 Russ. & M. 237. • Sterndale i'. Ilankinson, 1 Sim. 393 ; Foster v. Mackenzie, 17 Beav. 414. " She wen v. Vanderhorst, 1 R. & M. 347 ; and see Lake v. Hayes, 1 Atk. 1, and Coppin v. Geary, 1 Y. & C. 205, on the question of time when the trust is created. » 15 Ves. 498. / 668 PLEAS. was laid down by Lord Eldon, that, in the administration of assets under a creditor's bill, executors are not bound to plead the Stat- ute of Limitations ; ^ but that, if they did not, the creditor filing the bill would have a decree on behalf of himself and all other creditors, and would be paid : but that the constant course of the Master's office was to take the objection against the other creditors. This rule has since been discussed in Shewen v. Vanderhorst,^ where, the Statute of Limitations not having been taken advantage of by the executors, the objection was taken by the plaintiff, who was a residuary legatee ; and Lord Brougham held, that after a decree for an account of debts had been pronounced, and the Court by that means had taken possession of the estate, the Stat- ute of Limitations might be set up in the Master's office as well by a creditor or legatee as by a personal representative.^ The rule, that trusts arc not within the Statute of Limitations, applies only between trustees and cestui que trusl^^ not between the trustees or cestui que trusts and third persons ; and, therefore, it has been held, that where an executor or administrator, or trus- tee for an infant, neglects to sue within the time, the Statute of Limitations will bind the infant, and prevent his suing the debtor,^ although it would 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 ^ Lord Castleton v. Fanshaw, 1 Eq. Ca. Ab. 305. In Scott v. Hancock, 1 3 Mass. 164, it is said to be settled, that an administrator is not bound to plead the general statute of limitations in bar to an action on a debt of his intestate. See also Smith's Estate, 1 Ashmead, 352. But see the remarks of Bayley, J. in Mc- CuUock V. Dawes, 9 Dowl. & Kyi. 40, on this point. " 1 K. &M. 347. ' See also Lord Castleton v. Fanshaw, vhi supra ; S. C. Free, in Chan. 99. * In case of a direct trust, no length of time bars the claim between trustee and ■ cestui que trust. Cook v. "Williams, 1 Green Ch. 209 : Baker v. Whiting, 3 Sum- ner, 476 ; Armstrong v. Campbell, 3 Yerger, 201 ; Overstreet v. Bate, 1 J. J. Marsh. 370; Coster v. Murray, 5 John. Ch. 224; Gist u. Cattel, 2 Desaus. 53; Thomas v. AVhite, 3 Litt. 177 ; Stephen v. Yandle, 3 Hayw. 221 ; Trecothick v. Austin, 4 Mason, 16 ; Turrill v. Muzzy, 4 Yerger, 104 ; Wisner v. Barnet, 4 Wash. C. C. 631 ; Bryant v. Packett, 3 Hayw. 252 ; Fisher v. Tucker, 1 M'Cord Ch. 169 ; Van Rhyn v. Vincent, ib. 314 ; Decouche v. Savetier, 3 John. Ch. 216 ; Wamburzee v. Kennedy, 4 Desaus. 474 ; Pierson v. Ivey, 1 Y'^erger, 297 ; Tur- ner V. Debell, 2 A. K. Marsh. 384 ; Bigelow v. Bigelow, 6 Ham. 97 ; Kane v. Bloodgood, 7 John. Ch. 90; Farnam r. Brooks, 9 Pick. 242-244; Williams v. Watkins, 3 Peters, 51, 52. * Wych V. East India Company, 3 P. Wms. 309. OF THE DIFFERENT GROUNDS OF PLEAS. 669 of trustees.^ The rule also will not hold where the claim is made against a trustee by implication, more especially where such im- plication is raised upon a doubtful point.^ The rule, in fact, can only be taken to apply 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 posses- sion 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 Ho- venden v. Lord Annesley,* 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 possession of the cestui que trust, and no length of such possession will bar ; but, if a party is to be constituted a trustee by the decree of a Court of Equity, founded on fraud or the like, his possession is adverse, and the Statute of Limitations will run from the time that the circumstances of the fraud were discovered. This brings us to the question, how far the circumstance of a transaction being fraudulent will take a case out of the operation of the statute of 21 Jac. L c. 10. Upon this point it may be ob- served, that, although the proposition, that it is a rule in Equity that no length of time will bar a fraud is perfectly well founded, yet a Court of Equity will not impeach a transaction, on the ground of fraud, where the fact of its having been committed has been within the knowledge of the party for many years ; ^ if, there- fore, the bill states circumstances of fraud, and that the plaintiff did not become apprized of them till after the period limited by the statute had expired, a plea of the Statute of Limitations will not prevail, unless the defendant meets such statement by an aver- ment and answer negativing the fraud,^ or the fact of the discovery * Hercy v. Ballard, 4 Bro. Cha. Cas. 468. » Townscnd r. Townsend, 1 Cox, 28 ; S. C. 1 Bro. C. C. 550. ' rrinte i^. Heylin, 1 Atk. 493 ; Cox v. Dolman, 2 De Gex, Mac. & G. 592. * 2 Sch. & Lef. 633. » Gould V. Gould, 3 Story C. C. 516. * See Goodrich v. Pendleton, 2 John. Ch. 384. 670 PLEAS. within the time specified in the bill.^ The same rules which are applied by Courts of Equity to cases of fraud will also be applied to cases of mistake ; and it has been held, where there has been a mistake, that the statute will not operate 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 dis- covery of fraud gives to such plaintiif a new right ; but if he does not proceed within the time limited by the statute from such dis- covery, he will be barred. ^ This rule, which appears to have been the one relied upon by the Courts under the old Statute of Limi- tations, 21 Jac. I. c. 16, has been distinctly embodied into the Act of 3 & 4 Will. IV. 0. 27, s. 16.'' Acting upon the principle above laid down, that the period when every new right of action or suit accrues to the party should be the period from which to date the operation of the statute, the Courts liave held, that where any new promise or any acknowl- ^ Ilovcnden v. Lord Anncsley, 2 Sch. & Lef. 633 ; Blennerhassett v. Day, 2 Ball & B. 118 ; AVhalley v. Whalley, 3 Bligli, 12 ; Blair v. Bromley, 2 Phil. 356 ; Beaden >'. King, 9 Hare, 552. In cases of fraud the Statute of Limitations begins to run from the time of the discovery of the fraud. See Homer v. Fish, 1 Pick. 438 ; AVells v. Fish, 3 Pirk. 74, 76 (2d ed.) and numerous cases cited in note (1 ) ; Jones V. Conoway, 4 Yeates, 109 ; Sherwood v. Sutton, 5 Mason, 143 ; Harsell v. Kellcy, 2 IM'Cord, 426 ; Bishop v. Little, 3 Greenl. 405 ; Moreton v. Chandler, 8 Greenl. 9; Hamilton v. Sheppard, 2 Murph. 115; Payne v. Hathaway, 3 Ver- mont, 212 ; 2 Story Eq. Jur. § 1521, 1521 a, and notes and cases cited ; Shelby V. Shelby, Cooke, 183; Pugh v. Bell. 1 J. J. ^Lirsh. 401 ; Crane v. Prather, 4 ib. 77; Croft ?;. Arthur, 3 Desaus. 223; Wamburze i'. Kennedy, 4 Desaus. 474; Hadix V. Davison, 3 Monroe, 40 ; Cole v. M'Glathy, 9 Greenl. 131 ; Shield v. An- derson, 3 Leigh, 729 ; Eigleburger i'. Kibler, 1 Hill Ch. 121 ; Haywood v. Marsh, 6 Yerger, 60 ; Pennock v. Freeman, 1 Watts, 401 ; Bertine v. Varian, 1 Edw. Ch. 842 ; Hunter v. S[)otswood, 1 AVash. 146 ; Story Eq. PI. § 754 ; Warner v. Daniels, 1 AVood. & ]Minot, 90 ; Radeliff v. Rowley, 2 Barb. Ch. Rep. 23. But the bar created by the Statute of Limitations is not avoided by mere constructive fraud. Farnam v. Brooks, 9 Pick. 212. Nor is the bar avoided by a fraud which the party had the full means of discovering. Farnam y. Brooks, 9 Pick. 212; Cole V. M'Glathry, 9 Greenl. 131. * Brooksbank v. Smith, 2 Y. & C. 58, Exch. R. ^ Hovenden r. Lord Annesley, 2 Sch. & Lef. 637; South Sea Company v. Wy- mondsell, 3 P. Wms. 143. * So in Massachusetts, where the fraud is concealed by the person liable to the action. Genl. Sts. c. 155, § 12. In Maine there must be proof of actual fraud and concealment by the party sought to be charged. Cole v. M'Glathry, 9 Greenl. 131. OF THE DIFFERENT GROUNDS OF PLEAS. 671 edgraent has been given by the defendant it confers a new right of action upon the plaintiff; and that, therefore, the time within which the plaintiff's remedy would be barred must be reckoned from the time of such acknowledgment or promise being given.^ Upon this principle the Courts have held, that payment of any part of the principal or interest within the period limited is a suffi- cient acknowledgment to take the case out of the statute.^ So they have held the rendering an account, or an offer to account, to be sufficient to prevent the bar.^ Till a very recent period, 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 effect of acknowledgments and prom- ises offered in evidence for the purpose of taking the case out of the operation of the statute ; but, by an Act of Parliament, intro- duced by Lord Tcnterden, these questions have, in a great meas- ure, been set at rest. By that Act (9 Goo. IV. c. 14, s. 1), it has been declared that, in actions of debt or upon the case, grounded on any simple contract, no acknowledgment or promise by words shall be deemed sufficient evidence of a new or continuing con- tract, whereby to take any case out of the operation of the statute, or to deprive any party of the benefit thereof, unless such acknowl- edgment or promise shall be made or contained by or in some writing to be signed by the party chargeable thereby.* ' See BanjTs v. Hall, 2 Pitk. 378 ; Exeter Bank r. Sullivan, fi N. Ilamp. 135 ; Whitney v. Bigelow, 4 Tick. 110 ; Porter v. Hill, 4 Grcenl. 41 ; Deshou v. Eaton, 4 Greenl. 413; Russell v. Copp, 5 N. Hamp. 154; Bailey v. Crane, 21 Pick. 824; Illsley v. Jewett, 2 Metcalf, 168. Upon this subject of the revival of the remedy by an acknowledgment of and a new promise to }iay the debt, see Chitty Cont. (loth Am. ed.) 924 e( scq., and notes, and American cases cited ; Ex parte Dewdney, 15 Sumner's Ves. 479, note (a), and eases cited; Baillie v. Sibbald, ib. 185, note (a). » Hony V. Ilony, 1 S. &. S. 568. ' Earl Pomfret v. Lord Windsor, 2 Ves. 485 ; Briggs v. Wilson, 1 7 Beav. 330. * It is also declared, by the same section, that where there shall Ije two or more joint contractors, or e.\ecutors or administrators of any contractor, no such joint contractors, executor, or administrator, shall lose the benefit of the enactments, or either of them, so as to be chargeable in respect or by reason only of any written acknowledgment or promise made or signed by any other or others of them. Provisions similar to those in the Act of 9 Geo. 4, c. 14, have been adopted in Massachusetts. Genl. Sts. c. 155, § 13 et seq. 672 PLEAS. The above Act does not, however, alter or take away or lessen the effect of any payment of any principal or interest made by any person whatever ; so that the payment of any interest or any part of the principal, within the period limited by the Act, will still have the effect of taking the case out of the statute. It is to be observed, that the operation of the above Act is con- fined to cases of demands arising upon simple contracts, in which cases only it was, before the passing of the Act, held, that parol promises or undertakings would destroy the operation of the stat- ute 21 Jac. I. c. 16. Wliere the cause of action was a tort^ sub- sequent acknowledgments were held nugatory,^ and, in actions arising upon specialty, the statute did not apply. The statute 21 Jac. I. c. 16, s. 2, provides, that if any person entitled to the writs therein named, or who shall have a riglit of entry, shall be under the age of twenty-one years, feme covert^ non compos mentis, imprisoned, or beyond sea,^ such person or his heirs may, notwitlistanding the twenty years by the preceding Act limited as the period within which such writs might be sued out or entries made, bring his action or make his entry as he migiit have done before the Act, so tliat such action or entry was brought or made within ten years after his disqualification ceased. And, by the 7th section, it is provided, that persons under any of the above disqualifications may bring the several actions enu- merated in the 3d section, so that the same be brought witliin the time before limited for bringing the same after the termination of the disqualification. It is to be remarked, that although the above-mentioned section in the 21 Jac. 1. c. 16, provided for the statute not attaching where the plaintiff was under any of the disabilities therein men- tioned, no provision was made to prevent its operating as a bar during the time the defendant might be out of the jurisdiction ; ' Arguendo, Hony v. Ilony, 1 S. & S. 568, 578. « It is held in Ohio, that the term " beyond seas," in their statute of 1804, is equivalent to " without the limits of the State." Riehardson r. Richardson, 6 Ham. (Ohio,) 125. As to the construction of this term in the statutes of other States, see 2 Stark. Ev. (5th Am. ed.) 485, note (3), Tit. Limitations. In Massa- chusetts, it has been decided that a citizen of another State, who has never been in that Commonwealth, is not a person " beyond seas, without any of the United States," and therefore not within the saving clause in the Statute of Limitations. St. 1786, c. 52, § 4. See Genl. Sts. Mass. c. 155, § 6. Whitney i'. Goddard, 20 Pick. 304. OF THE DIFFERENT GROUNDS OF PLEAS. 673 the 4 Ann. c. 16, s. 19, has, however, remedied that defect, and the creditor has under it the same privilege, where the debtor is beyond sea, as he had by the statute of James where he was be- yond sea himself.^ It is right to notice here, that it has been considered, that the 21 Jac. I. c. 16, will not be a good plea in a suit against an execu- tor or administrator where he has not proved the will, 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 executor de son tort, a plea of the Statute of Limitations, by an executor who had not taken out probate till some years after the testator's death, was allowed.^ And it may be laid down as a general rule, that, wherever a party takes by as- signment 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 stat- ute 3 Sturt f. IMellish, 2 Atk. 612. In Genl. Sts. (Mass.) c. 155, § 9, there are pro- visions on this subject. * Joliffe V. Pitt, 2 Vern. 694 ; 1 Eq. Cas. Ab. 305, n. » Webster v. Webster, 10 Ves. 93 ; Story Eq. PI. § 753 ; Burditt v. Grew, 8 Pick. 108. ♦ South Sea Company v. Wymondsell, 3 P. Wms. 143. * Amended by 7 Will. IV. & 1 Vict. c. 28. • See ante, pp. 584, 585, n. ^ See sect. 40. VOL. I. 57 674 PLEAS. way of plea in all cases not included in the 3 & 4 Will. IV. c. 27, in which it might before have been pleaded. It may be useful in this place to point out the cases in which the Statute of Limitation of the 3 & 4 Will. TV. c. 27, above re- ferred to, operates as a bar to suits in Equity. By the 24th sec- tion, all suits in Equity are barred as against persons claiming any laud or rent (within the meaning of the definitions contained in the 1st section of the Act), unless within the period during which, by virtue of the provisions therein before contained, tliey might have made an entry or distress, or brought an action to recover the same respectively, if they had been entitled at Law to such estate, interest or right, as they claim in Equity. This right, how- ever, in the case of an express trust, is declared, by the 25th sec- tion, not to have accrued against a purchaser, or those claiming under him, until the actual conveyance to such purchaser. It is also declared, tliat it is only against such purchaser, and any one claiming under him, that the right shall then be deemed to have accrued ; so that, as between tlie 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, tliat, in every case of concealed fraud, the right to bring a suit in Equity shall be deemed to have accrued at, and not before, the time at which such fraud has (or with reasonable diligence might have) been found out,^ it also provides, that nothing in that section shall enal)le the owner of any lands, &c., to have a suit in Equity for the recovery of such lands, 9 Sim. 570 ; and see Searle v. Colt, 1 Y. & C 36. » Anon. 2 Freem. 22, pi. 20 ; Parker v. Ash, 1 Vern. 250 ; Fotherby v. Hart- ridge, 2 Vern. 21 ; Wood v. Briant, 2 Atk. 521 ; Jones v. Turberville, 2 Vcs. jr. 11 ; 4 Bro. C. C. 115; S. C. cited 2 Ves. jr. 280; Higgins v. Crawford, ibid. 571 ; Sauzer v. De Meyer, 2 Paige, 574 ; Kane v. Bloodgood, 7 John. Ch. 90 ; Andrews v. Sparhawk, 13 Pick. 393. Though the Statute of Limitations is no bar to a legacy, yet the Court, in regard to very stale demands, will adopt the pro- visions of the statute, in the exercise of their discretion. Arden v. Arden, 1 John. Ch. 313. See Inby v. M'Crea, 4 Desaus. 422; Wilson v. Kilcannon, 4 Ilayw. 185 ; Lindsay i;. Lindsay, 1 Desaus. 151. • 2 M. & C. 309. * See Sauzer v. De Meyer, 2 Paige, 574. " 9 Sim. 567 ; and see Paget r. Foley, 2 Bing. N. S. 679. • With respect to annuities, see Cox v. Dolman, 3 De Gex, Mac. & Gord. 542. 57 * 678 PLEAS. The Act also provides (sect. 41), that no arrears of dower, or any damages on account of such arrears, shall be recovered or obtained by any action or suit for a longer period than six years before the commencement of such action or suit. And, by sect. 42, it is en- acted, that no arrears of rent, or of interest in respect of any sum of money charged upon or payable out of any land or rent, or in respect of any legacy or damage in respect of such arrears of rent or interest, shall be recovered by any distress, action, or suit but within six years after the same respectively shall have become due, or next after an acknowledgment of the same in writing shall have been given to the person entitled thereto, or his agent, by the per- son by whom the same was payable or his agent. It is, however, provided, that where any prior mortgagor, or other incumbrancer, shall have been in possession of any land, or in receipt of the prof- its thereof, within one year next before an action or suit shall be brought by any person entitled to a subsequent mortgage or other incumbrance on the same land, the person entitled to such subse- quent mortgage or incuml)rancc 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 possession or receipt as aforesaid, although such time may have exceeded the term of six years.^ It has been decided that this section of the statute does not ap- ply in a case where the relation of trustee and cestui que trust has existed between the person in possession of the land and the par- ties entitled to the legacies and annuities.^ It has also been con- tendcd,3 tj^^t a testator, by charging his estate with the payment of an annuity so far makes the devisee a trustee for the annuitant as to prevent the operation of the statute, but there does not seem as yet to have been any decision upon the subject. • Care must be taken in framing a pica of a Statute of Limita- tions to set up the proper statute.'' Thus in all cases where the » On this section, see the cases of Sinclair v. Jackson, 1 7 Beav. 405 ; Elvy v. Norwood, 5 De G. & Sin. 249 ; Greenway v. Brorafield, 9 Hare, 201. - Young I'. Lord Watcrpark, 13 Sim. 204 ; Ward v. Arch, 12 Sim. 472 ; Cox V. Dolman, 2 De Gex, Mac. & G. 592. » Francis v. Grover, before Sir J. Wigram, V. C, July, 1845 ; and see Har- greaves v. Mitchell, 6 Mad. 326. * See the form of such a plea, Willis, 562 ; 2 Eq. Drafts. 113, 114. In setting up a defence under a public statute, it is not necessary, either in a Court of Chan- cery or in a Court of Law, that the pleader should set forth the statute in his plea, OF THE DIFFERENT GROUNDS OF PLEAS. 679 suit relates to a debt or money due upon simple 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 principal money secured on mortgage, judgment or lien, or otherwise charged 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 ar- rears of rent, or interest accrued in respect of any charges upon land or rent, or in respect of any legacy. The statute 3 & -4 Will. IV. c. 27, also contains provisions for the limitation of demands by ecclesias'tical or eleemosynary corpo- rations sole,^ and of suits for enforcing the right of presentation 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 sufficient af- firmative averments to bring the case within the statute pleaded.^ Thus a plea of the statute 21 Jac. I. c. 10, 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 anything executory, as a note for the payment of an annuity, or for 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 done six years before the action brought.* It does not appear, however, that a particular form of words is necessary in such averments, provided those made use of are sufficient to bring the case within the statute ; therefore, where the plea, instead of averring that the money in question was not received within the last six years, or that he should allege the existence of a statute of which the Court is judicially bound to take notice. It is suflicient for him to state the facts which are neces- sary to bring the case within the operation of the statute ; and to insist that upon these facts the plaintiff's right or remedy is at an end. The Court will then judi- cially take notice of the existence of the statute and declare its legal effect upon the case as made by the pleadings. Bogardus v. Trinity Church, 4 Paige, 148, 197. See Salter v. Tobias, 3 Paige, 338. » Sect. 29. * Sects. 30 - 33. * See Andrews v. Huckabee, 30 Ala. 143. * Lord Red. 271. 680 PLEAS. averred, that no cause of action accrued within that time, it was held sufificient.^ Whenever, also, any matters are stated in the bill which are cal- culated to take the case out of the statute, these must be met by negative averments. Thus if the bill charges fraud, the plea must deny the fraud,^ or aver that the fraud, if any, was discovered above six years before the filing of the bill.^ So if the bill alleges that the defendant discovered the fraud less than six years before the bill was filed, the plea must aver that he did not make such discovery within that time.^ If, moreover, there are any state- ments in the bill which allege matter ancillary to, or afford evi- dence of facts directly negatived by, the plea, such statements ought to be met by an answer in support of the plea.^ It is to be observed here, that the statutes above specified are not the only ones which may be set up as Statutes of Limitation ; there are others which may in like manner be offered to the Court in the shape of a plea. In fact, any statute which operates as a limit to the time within which proceedings may be commenced at Law for the recovery or assertion of a particular right or claim may be set up in Equity as a bar in all cases where it would have so operated at Law, had the litigation been in a Court of Law. Thus it has been lield, that where a mortgagee of an advowson ap- pears and presents to the churcli, which he is not entitled to do before foreclosure, the bill seeking to compel a resignation must be brought within six montlis after the death of the late incumbent, being the period within which, by the Statute of "Westminster 2,^ a quare impedit must be brought.' Amongst the new modern statutes, which may in like manner be set up as presenting a limitation of this nature, may be mentioned the statute 2 & 3 Will. IV. c. 71, for shortening the time of pre- scription in certain cases, and the 3 & 4 Will. IV. c. 42, " for the ' Sutton V. Earl of Scarborough, 9 Ves. 71. 2 Bicknell v. Gougb, 3 Atk. 558. ' South Sea Company v. Wymondsell, 3 P. Wms. 143. * Ibid., Lord Red. 269 ; Sutton v. Lord Scarborough, vbi supra. * Dearman v. Wyche, 9 Sim. 570. But where the plea sets up the Statute of Limitations in defence, it is not necessary in such plea to deny a new promise within six years, unless the bill alleges such promise ; but if so denied in the plea it will be mere surplusage. Davison v. Schermerhorn, 1 Barb. Ch. 480. * 13 Edw. III. c. 5. ^ Gardiner v. Griffith, 2 P. Wms. 405 ; 3 Atk. 559, S. C. OF THE DIFFERENT GROUNDS OF PLEAS. 681 further Amendment of the Law, and the better Advancement of Justice," section 3. The statute " for the Prevention of Frauds and Perjuries " ^ may be pleaded in bar to a suit to which the provisions of that Act apply .^ Thus to a bill for a 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 \)y an answer admitting in effect the trust.* To a bill for the specific performance of an agreement the same stat- ute, with an averment that there was no agreement in writing signed by the parties, has also been offered to the Court by plea.^ The Statute of Frauds may also be pleaded to a bill to enforce a parol variation of a written contract,*^ unless the variation is such as amounts to a mere waiver of a term in the agreement, such as the time for the commencement of a lease, Lord Red. 265 ; ^lussell v. Cooke, Prec. in Ch. 533 ; Child v. Godolphin, 1 Dick. 39 ; S. C. 3 Swanst. 423, n. ; Hawkins v. Holmes, 1 P. Wms. 7 70 ; Clerk V, Wright, 1 Atk. 12 ; Story Eq. PI. § 671 ; Stevens v. Cooper, 1 John. Ch. 425. * Jordan v. Sawkins, 1 Ves. jr. 402. ^ Ibid. See notes to the case of Jordan v. Sawkins, 3 Bro. C. C. (Perkins's ed.) 388, 390. ' Coop. Eq. PI. 256 ; see Beames on Pleas, 172 ; see, however, Denys v. Lo- cock, 3 M. & C. 205 ; Dearman v. Wyche, 9 Sim. 570; Wbitbread v. Brockhurst, 1 Bro. C. C. 404 ; S. C. 2 Ves. & B. 153, n. 682 PLEAS. 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 that he cannot, afterwards, be allowed to insist upon it, although he claims it by answer to the bill when amended, or by his counsel at the bar.^ Before quitting the subject of the Statute of Frauds, it may be as well to call the reader's attention to the fact, that the Court will not allow a party to avail himself of the Statute of Frauds for the purpose of committing a fraud ; ^ and, therefore, where a mere mort- gage was contemplated, and an absolute conveyance was made by one, with tlie intention of a defeasance being executed by another, which was never carried into effect, the Court will not allow a de- fendant to avail himself of the Statute of Frauds to protect him in the enjoyment of the estate under the conveyance.^ And so where au heir at law filed a bill against a devisor, alleging that the devise was upon a secret trust for a charitable purpose, contrary to the statute 9 Geo. II. c. 3(3, a plea of the Statute of Frauds was over- ruled.^ And the Court will never permit a party to protect him- self by a plea of the statute from discovery whether a devise was obtained 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 before the Court, under a decree or order, are not within the Statute of Frauds.^ ' Beamcs on Pleas, 178, and notes; Skinner v. M'Dowell. 2 De 0. & Sm. 2G5. It is now settled, that a party, who admits a parol agreement by answer, may nevertheless have the benefit of the statute, if he, by his answer, prays the bene- fit of it. If he does not thus insist on the benefit of the statute, he must be taken to renounce it. Woods v. Dike, 1 1 Ohio, 455 ; 2 Story E Samuda v. Furtado, 3 Bro. C. C. 70, 71 ; Ostell v. Lepage, 2 De Gex, Mac. & G. 892 ; 2 Seton Doi-. (3d Eng. cd.) 882. * As to the circumstances wliich will be sufficient to impeach a verdict and judgment in Equity, see Williams v. Lee, 3 Atk. 223 ; Samuda v. Furtado, supra. If no such equitable circumstances are alleged in the bill, the defendant may de- mur ; Lord Red. 256. See Mitford Eq. PI. by Jeremy (5th Am. ed.). \2t], note (2), and cases cited. » Story Eq. Vl § 784. * Lord Red. 258; Dawson v. Dawson, 1 Atk. 1 ; Chappcdelaine v. Dechenaux, 4 Cranch, 306. See the form of a plea of a stated account, Willis, 550. What ■will constitute a stated account in the sense of a Court of E(iuity, is in some meas- ure dependent on the circumstances of the case. 1 Story Eq. Jur. § 526. A stated account properly exists only where the accounts have been examined, and the balance admitted as the true balance between the parties, without having been paid. When the balance thus admitted is paid, the account is deemed a settled account. Endo i'. Caleham, 1 Younge, 306; Capon v. Miles, 13 Price, 767; Weed r. Small, 7 Paige, 573 ; 1 Story Eq. PI. § 798. * Sumner i'. Thorp, 2 Atk. 1 ; Coop. Ecj. PI. 277 ; Taylor v. Haylen, 2 Bro. C. 58* 690 PLEAS. In order to support a plea of a stated account, it must be shown to have been final ; ^ it is not sufficient to allege that there has been a dividend made between the parties, which implied a settle- ment ; for a dividend may be made upon a supposition that the estate will amount to so much, but may be still subject to an ac- count being stated afterwards. A man who pleads a stated ac- count must show it was in writing, and likewise the balance in writing, or at least set forth what the balance was.^ It may be remarked, in this place, that 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 will be sufficient if an account has been delivered and acquiesced in for a considerable lengtli of time : ^ thus, where 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 per- son to whom it is sent keeps it by him for any length of time with- out making any objection, it will bind him and prevent him open- ing the account afterwards." The mere delivery of an account, however, will not constitute a stated account, without some evi- dence of acquiescence which may afford sufficient legal presump- tion of a settlement.' It has been said, that among merchants it is looked upon as an allowance of an account current, if the mer- chant who receives it does not object to it in a second or a third post.^ But in Tickel v. Short,^ Lord Hardwieke said, that if one C. 310; Johnson r. Curtis. 3 Bro. C. C. 266 ; Carmicbael v. Carmichael, 2 Thil. 101 ; 1 Story Eq. Jur. § 527. ^ Dawson r. Dawson, tthi supra. ■ Burk V. Brown, 2 Atk. 399; Sewell v. Bridge, 1 Ves. 297. ^ For. Rom. 57. * 1 Story Eq. Jur. § 526. * Murray r. Toland, 3 John. Ch. 569 ; Freeland v. Heron, 7 Craneh, 147 ; 1 Story Eq. Jur. § 526 ; Consoqua v. Fanning, 3 John. Ch. 587; "Wihle r. Jenk- ins, 4 Paige, 481. In regard to acquiescence in stated accounts, although it amounts to an admission, or presumption of their correctness, it by no means es- tablishes the fact of their having been settled, even though the acquiescence has been for a considerable time. There must be other ingredients in the case to justify the conclusion of a settlement. 1 Story Eq. Jur. § 528 ; Ld. Clancarty v. Latouche, 1 B. & Beat. 428 ; Irving v. Young, 1 Sim. & Stu. 333. « Willis V. Jernegan, 2 Atk. 252. T Irvine v. Young, 1 S. & S. 333. ^ Sherman v. Sherman, 2 Vern. 276. » 2 Ves. 239. OF THE DIFFERENT GROUNDS OF PLEAS. 691 merchant sends an accoimt to another in a different 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 ac- count.^ 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.^ The delivery up of vouchers is an affirmation that 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 etfect of pleading a stated ac- count to a mere bill for an account is to compel the plaintiff to amend his bill, and to charge either fraud or particular errors ; * it remains only to observe, that if specific errors or fraud are charged in the bill for the purpose of impeaching the account, they must be denied by averments in tlie plea, as well as by answer in support of the plea.^ It may be observed here, that when fraud is proved to have taken place in a settlement of accounts, it will be a sufficient ground to open the whole account ; ^ and this lias been done by 1 Tiekel v. Short, 2 Ves. 239. * Anon. 3 Atk. 70 ; and see Ilankey v. Simpson, 3 Atk. 303 ; Daniels v. Tag- gart, 1 Gill & John. 311 ; Schwarz v. Wendell, llarring. Ch. 895, » Lord Red. 260 ; Willis v. Jernogan, 2 Atk. 252. But the delivering up of vouchers on a settlement of accounts, is not necessary. Meeker v. !Marsh, 1 Sax- ton (N. J.), 198. * Ante, p. 374 ; Weed v. Small, 7 Paige, 573 ; Brown v. Vandyke, 4 Halst. Ch. (N. J.) 795. * Lord Red. 201 ; Tlielps v. Sproule, 1 M. & K. 231. * Vernon v. Vawdry, 2 Atk. 119 ; Matthews v. Wallwyn, 4 Ves. 125 ; S. C. Beaumont v. Boultbee, 5 Ves. 485, 7 Ves. 599 ; S. C. 11 Ves. 358 ; Allfrey i'. Allfrey, 1 Mac. & Gor. 87. See 1 Story Eq. Jur. § 523 ; Barrow v. Khinelander, 1 John. Ch. 550 ; Story Eq. PI. § 801,802 : Baker v. Biddle, 1 Bald. 394 ; Bain- bridge V. Wilcocks, ib. 536, 540. Where there has been fraud a Court of Ecjuity will oj)en and examine accounts after any length of time, even though the person committing the fraud be dead. Botifeur i'. Weyman, 1 ^I'Conl Ch. 161. A running account closed by a bond may be opened by a Court of Equity on the ground of fraud. Gray r. Washington, Cook, 321. If in a bill of Equity to open a settled account, the facts alleged and proved should show fraud actual or con- structive, in the settlement, tlw? plaliitifT will be entitled to relief, notwithstand- ing the bill contains no direct averment of fraud. Farnam v. Brooks, 9 Pick. 212. 692 PLEAS. the Court, though the account had been settled for twenty-three years, and the party who was guilty of the fraud was dead.^ Where, however, it is only shown that errors or mistakes exist in the account, the party will be permitted to surcharge and falsify it.2 This is an important distinction, because, where an account is opened, the whole of it may be unravelled, and the parties 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 onus probandi is always on the party having the liberty ; for tiie 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 wrong charge is inserted it will be deducted (which is a falsifica- tion').^ This, however, must be done by proof on his side.^ It is to be noticed here, that although a party seeking to open a settled account must specify the errors he insists upon,^ it is not 1 See Matthews v. Wallwyn, 4 Sumner's Vesey, 118, note (b) ; Middleditch v. Sharland, 5 Sumner's Vesey, 87, Perkins's note (a), and cases cited ; Ilickson v. Aylward, 3 Moll. 1 ; Farnam v. Brooks. 9 Pick. 212; 1 Story Eq. Jur. § 462, and notes ; Pickering t'. Pickering, 2 Beavan, 31 ; Graham v. Davidson, 2 Dcv. & Bat. Eq. 155 ; De Montmorency i>. Devereux, Dru. & W. 119. « Vernon v. Vawdry, 2 Atk. 119; Brown v. Vandyke, 4 Halst. Ch. (N. J.) 795. The burden of showing errors is on him who receives an account without objection. Baker v. Biddle, 1 Bald. 304; Bainbridge v. Wilcocks, ib. 536, 540; Chappedclaine v. Dechenaux, 4 Cranch, 203 ; Lock v. Armstrong, 2 Dev. & Bat. Eq. 147 ; Wilde v. Jenkins, 4 Paige, 481 ; Murray v. Tolland, 3 John. Ch. 569 ; Honore v. Colmesnel, 1 J. J. Marsh. 417 ; Bullock i'. Boyd, 2 Edw. 293 ; Troup V. Haight, 1 Ilopk. 239 ; Brownell v. Brownell, 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 (Brownell v. Brownell, 2 Bro. C. C. 62), or between solicitor and client (Matthews v. Wallwyn, 4 Ves. 125), the Court allows a greater latitude. » Osborne v. Williams, 18 Ves. 379, 382. ♦ For an explanation of the terms surcharge and falsify, see 1 Story Eq. Jur. § 525. " Pit V. Cholmondeley, 2 Ves. 566. " Ante, p. 374. A general charge is not sufficient, specific errors must be pointed out. Calvit v. Markham, 3 How. (Miss.) 343 ; Mebane v. Mebane, 1 Ired. Eq. 403 ; De Montmorency v. Devereux, 1 Dru, & W. 119 ; Leaycraft v. Derapsey, 15 Wend. 83 ; Baker v. Biddle, 1 Bald. 394, 418 ; Bainbridge v. Wil- cocks, ib. 536, 540 ; Consequa v. Fanning, 3 John. Ch. 587 ; S. C. 17 John. 511 ; 1 Story Eq. Jur. § 523, 527 ; Brownell r. Brownell, 2 Bro. C. C. (Perkins's ed.) 62, notes; Weed v. Small, 7 Paige, 573; Hobart v. Andrews, 21 Pick. 576; Chappedclaine v. Dechenaux, 4 Cranch, 306 ; Bullock v. Boyd, 2 Edw. Ch. 293 ; OF THE DIFFERENT GROUNDS OF PLEAS. 693 necessary that he should, at the hearing, prove all the errors speci- fied iu his bill.i If he proves some of them, he entitles himself to a decree, giving him liberty to surcharge and falsify,- which he may do in the manner above suggested. It is to be remarked, however, that although an admission by the defendant in the answer accompanying his plea of an error in the stated account may be sufficient evidence to induce the Court to 'open the account, the mere circumstance that the defendant, after the account was settled, confessed that there was an error in the account, and before suit corrected it and paid over tlie amount, is not a ground upon which the Court will make such a decree.^ It is to be observed, that where parties are thus at liberty to surcharge and falsify, 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 fali^ify, the other may do so too.^ 2. If the plaintiff, or a person under whom he claims, has re- leased the subject of his demands, the defendant may plead the release in bar of the bill ; *^ and this will apply to a bill praying that the release may be set aside.^ A release, however, to be an effectual bar to an account, must be under seal, otherwise it must be pleaded as a stated account only.^ But although it is necessary that a release, when insisted upon as such, should have been sealed and delivered, there is no authority for saying that it must have been signed.^ It seems that where a person in execution on a judgment has been discharged by his creditor's express order, such discharge being a release of Phillips V. Belden, 2 Edw. Ch. 1 ; Stoughton v. Lynch, 2 John. Ch. 509 ; Story Eq. PI. § 800. ' Anon. 2 Freem. G2 ; Chambers v. Goldwin, 5 Ves. 834 ; Dawson v. Dawson, 1 Atk. 1 ; Drew i'. Power, 1 Sch. & Lef. 192. ' Twoiiood V. Swanston, 6 Ves. 486. * Davis V. Spurling, 1 R. & M. 64. * Roberts v. Kuffin, 2 Atk. 112. ' 1 Mad. Trea. on Eq. 144. • Lord Red. 261 ; Bower v. Swadlin, 1 Atk. 294 ; Taunton v. Pepler, Mad. & Geld. 166 ; Clarke v. Earl of Ormonde, Jacob, 116 ; Roche v. Morgell, 2 Sch. & Lef. 721. ' Lord Red. 261. « Lord Red. 263 ; For. Rom. 57. • Taunton v. Pepler, ubi supra. 694 PLEAS. the debt, may be pleaded in bar to a bill to have satisfaction of the judgment.^ In a plea of release, the defendant must set out the considera- tion upon which it was made ; ^ for every release must be founded on some consideration, otherwise (as Lord Chief Baron Gilbert says) fraud must be presumed.^ A plea of release, therefore, can- not extend to a discovery of the consideration ; and if that is im- peached by the bill, the plea must be assisted by averments cover- ing the ground upon which the consideration is so impeached.* 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 is to be observed, that although an award duly made will be a good plea in bar to a bill for tlie matters concluded by it, a cov- enant or agreement to refer disputes to arbitrators, as it cannot be made the sulyect of a bill for a specific performance ; ^ so neither can it be pleaded in bar to a bill brought in consequence of such * Beames on Pleas, 221 ; Beatniffr. Gardiner, 2 Eq. Ca. Ab. 73. « Lord Rod. 261 ; For. Rom. 57. » Roche V. Morgell, 2 Sch. & Lef. 728. * Lord Red. 2G1 ; Salkeld v. Science, 2 Yes. 107, 108; Roche v. Morgell, 2 Sch. & Lef. 721 ; and see Brown v. Perkins, 1 Hare, 564 ; Story Eq. PI. § 796, 797. Where the consideration for a release is the general settlement of accounts, and such settlement is impeached in the bill, this must be met by a plea and be supported by an answer denying the imputations charged in the bill. Parker v. Alcock, 1 Younge & Jer. 432 ; Fish v. Miller, 5 Paige, 26 ; Allen v. Randolph, 4 John. Ch. 693 ; Bolton v. Gardner, 3 Paige, 273 ; Story Eq. PI. § 797 ; Peck V. Burgess, Walk. Ch. 485. ^ Tittenson v. Peat, 3 Atk. 529 ; Farrington v. Chute, 1 Vern. 72. For the form of a plea of '* Award," see Willis, 553. « Lord Red. 260. ^ Lord Red. 260 ; Tittenson v. Peat, 3 Atk. 529 ; Story Eq. PI. § 803. See Rowe V. Wood, 1 Jac. & W. 315 ; 2 Bligh, P. C. 505, for a case where the agree- ment was entered into after the bill had been filed. * Price V. Williams, cited 6 Yes. 818. No mere agreement to refer a contro- versy to arbitration can oust the proper courts of justice of their jurisdiction of the case. Contee v. Dawson, 2 Bland, 264. See also AUegre v. Maryland Ins. Co. 6 Harr. & John. 408 ; Randall v. Chesapeake, &c.. Canal Co. 1 Harring. 234 ; Gray v. Wilson, 4 Watts, 39 ; Miles r. Stanley, 1 Miles, 418 ; Stone v. Dennis, 3 Porter, 231 ; Story, Partnership, § 215, and notes; Story Eq. PI. § 804 ; Tobey V. County of Bristol, 3 Story C. C. 800. OF THE DIFFERENT GROUNDS OF PLEAS. 695 differences.^ This seems to be now the established rule of the Court, as recognized in a variety of cases, by which Half hide v. renning,^ the only case where a contrary doctrine appears to have prevailed, has been overruled.^ If the bill impeach the award upon grounds of fraud, corruption or mistake, those charges must be denied both by averments in the plea, and by answer in support of it ; and every other matter stated in the bill, as a ground for impeaching the award, must be denied in the same manner.* 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 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 averments and answer, denying such charges, and showing them- selves incorrupt and impartial.^ 4. Where an agreement is final, and settles the whole matter, it may be pleaded to a bill. Therefore, where an administratrix, who was a defendant to a bill for an account and distribution, pleaded an inventory duly taken and approved, and an agreement founded thereon, the plea was allowed.^ It is to be observed, that an agreement to put an end to a suit must not be final only as be- tween the parties to the bill to which it is pleaded, but it must be final as to all the parties to the suit comprehended by it ; if, there- fore, an agreement be made subsequent to the filing of a bill be- tween the parties to the suit and other parties, for the purpose of putting an end to the proceedings in the suit, and for other pur- ' Wellington v. Mackintosh, 2 Atk. 570. See Henrick v. Blair, 1 John. Ch. 101 ; Shepard r. Merrill, 2 ib. 276 ; Underhill i-. Van Cortlandt, 2 ib. 339 ; Bouck V. Wilber, 4 ib. 405 ; Tappin v. Heath, 1 Paige, 293 ; Campbell v. Western, 3 ib. 124; Fitzpatrick v. Smith, 1 Desaus. 245; Atwyn v. Perkins, 3 ib. 297; Sher- man V. Beale, 1 Wash. 11 ; Pleasants v. Ross, ib. 156 ; Morris v. Ross, 2 lien. & Mun£ 171, 408 ; Mitchell v. Harris, 2 Sumner's Vesey, 129, notes (c) and (rf), and cases cited ; Tobey v. County of Bristol, 3 Story C. C. 800, 819 e/ seq. ' 2 Bro. C. C. 336. ' Mitchell V. Harris, 4 Bro. C. C. 311 ; S. C. 2 Ves. jr. 129, 136 ; Satterley V. Robinson, cited 4 Bro. C. C. 316, not'is ; Street v. Rigby, 6 Ves. 815; Lord Red. 266. * Ibid. 261 ; Coop. Eq. PI. 280 ; Beames on PI. 231 ; ante, p. 639. * Ante, pp. 298, 299. * Cocking V. Pratt, 1 Ves. 401 ; see Belt's Sup. to Ves. 179. 696 PLEAS. poses, it cannot be pleaded in bar to the bill by one of the parties only. At all events, if it is so pleaded, it must contain averments that all the conditions of the agreement have been performed, or from circumstances could not be performed, and that the other parties not joining in the plea are ready to perform the agreement ; indeed all the circumstances by which such an agreement is af- fected should be noticed in the averments.^ Where an agreement of this sort, vrhich 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 as a fit subject for a plea, the object of which is to re- duce the subject-matter of litigation to a single point, and to avoid the expense which would be incurred by entering into all the sub- ject-matter of the dispute : the proper course under such circum- stances would be for the party insisting upon the agreement to file a supplemental bill for the purpose of enforcing it, including all the parties and all the subjects of. the agreement.^ 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 — 1, On a long peaceable possession by the defendant, and those under whom he claims ; 2ndly, On a will ; or, 3rdly, On a conveyance.* 1. As, at Law, length of time raises a presumption against claims otherwise most clearly made out, so, in Equity, a long and peaceable possession may be pleaded in bar to the relief. Thus, an undisturbed possession of sixty years or more was long ago held to be a good subject, of plea.^ And it appears to be settled that where there has been adverse possession not accounted for by some disability, such as coverture, or infancy, a Court of Equity will not interfere. Where a title is so stated in a bill, that there appears 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 neces- 1 Wood V. Rowe, 2 Bligh, P. C. 595. * Ibid. ; and see Rowe v. Wood, 1 Jac. & W. 315, S. C. * Prae. Reg. 328 ; Story Eq. PI. § 811. * Beames on PI. 247. * Prac. Reg. 328. » Cholmondeley v. Clinton, 1 T. & R. 107 ; Blewitt v. Thomas, 2 Yes. jr. 669. OF THE DIFFERENT GROUNDS OF PLEAS. 697 sary to show the existence of the adverse possession. And a mere general allegation in the bill, that there have been disabilities aris- ing from infancy or coverture, will not be sufficient to invalidate such a plea.^ It is to be noticed, that, in a plea of adverse possession, if the possession is derivative, and has not, during the whole time covered by the plea, been in the defendant himself, the plea must show in whom the possession was at the time when the first plea sets it up, and how the defendant deduces his possession from such person ; and if the adverse possession is to be inferred from circumstances which do not appear upon the bill, the defendant must state clearly, upon the face of his plea, the circumstances on which he means to rely as constituting the adverse possession.^. 2. A will may also be pleaded in bar to a bill brought, on a ground 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 fraud, and likewise for a receiver, on a suggestion that the testator was rendered incapable of making it, by being perpetually in liquor, and particularly when he executed the will ; 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.* 3. Li like manner, upon a bill filed by an heir against a person claiming under a conveyance from the 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 tlie ground of fraud, and the defend- ant pleaded a conveyance by the testator, before the date of his will, of the estate which the plaintiff claimed, the plea was al- lowed.^ ^ Story Eq. PI. § 814, 815. * Hardman v. P^Uames, 2 M. & K. 732. ' Story Eq. PI. § 812. For the form of such a plea, see Willis, 559. * Anon. 3 Atk. 17. * Lord Red. 263. " Howe V. Duppa, 1 V- & B. 511. See Hungate v. Gascoigne, 1 R. & M. 698; Jackson v. Rowe, 4 Russ. 514 ; Story Eq. PI. § 812. VOL. I. 59 698 PLEAS. 6, As a general rule, where a conveyance is insisted upon by plea, as an adverse title, it must bear date at a period "anterior to the commencement of the plaintiff's title, as shown by the bill ; there are cases, liowever, in which a conveyance may be insisted upon, though posterior in point of date to the plaintiff's title. In such cases, however, it is necessary to the validity of the plea, that the conveyance should have been for a valuable 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 purchase for a valu- able consideration without notice, and it is founded on this prin- ciple of equity, viz., that where the defendant has an equal claim to the protection of a Court of Eq\iity to defend his possession, as the plaintiff has to the assistance of the Court to assert his right, the Court will not interpose on eitlier side.^ It is to be observed, that a purchaser with notice from a purchaser without notice may shelter himself under the first purchaser. 2 ^ Lord Red. 274. Upon this principle it has been held, 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. Batte, 10 Yerger, 335 ; Donnell );. King, 7 Leigh, 3!t3 ; Story Eq. PI. § 805 ; Jewett v. Palmer, 7 John. Ch. 65 ; Gallatian v. Cunningham, 8 Cowen, 361 ; Souzer v. De Meyer, 2 Paige, 574. See the remarks of Lord Chancellor Lifford upon this plea, in Lord Drog- heda v. Malone, Finlay's Dig. 449, cited in Mitford Eq. PI. (5th Am. ed.) 277, note (1). . - Lord Red. 278 ; Brandlyn v. Ord, 1 Atk. 571 ; Lowther v. Carlton, 2 Atk. 139, 243 ; Ca. t.. Talbot, 187 ; Sweet v. Southcote, 2 Bro. C. C. 66, cited Ambl. 313 ; M'Queen v. Farquhar, 11 Ves. 478 ; Hiern v. Mill, 13 Ves. 120 ; and see Harrison v. Forth, Prec. in Chan. 51 ; Story Eq. PI. § 808 ; Varick v. Briggs, 6 * Paige, 329; Bennett v. Walker, West, 130; Jackson v. McChesney, 7 Cowen, 360 ; Bumpus v. Platner, 1 John. Ch. 213 ; Demarest v. Wynkoop, 3 John. Ch. 147 ; Jackson v. Henry, 10 John. 185 ; Jackson v. Given, 8 John. 573 ; Alexan- der V. Pendleton, 8 Cranch, 462 ; 1 Story Eq. Jur. § 409, 410, and notes ; Hag- thorp V. Hook, 1 Gill & John. 263 ; Curtis v. Lunn, 6 Munf. 42 ; Griffith v. Grif- fith, 1 Hoff. Ch. R. 163 ; Lacy v. Wilson, 4 Munf. 313 ; Lindsay v. Rankin, 4 Bibb. 482 ; McNitt v. Logan, Litt. Sel. Ca. 69. But If he would avail himself of the want of notice In his vendor, he must expressly aver that ignorance, in plead- ing. Gallatian v. Erwin, 1 Hopk. 58 ; S. C. on appeal, 8 Cowen, 361 ; Griffith V. Griffith, 1 Hoff. Ch. R. 163; Cummlngs v. Coleman, 7 Rich. Eq. S. C. 509. A purchaser without notice from one who has fraudulently purchased, Is not af- fected by the fraud. Bumpus v. Platner, 1 John. Ch. 213; Jackson v. Henry, 10 John. 185. OF THE DIFFERENT GROUNDS OF PLEAS. 699 But notice to an agent is notice to the principal ;^ and where a person having notice purchased of another who had no notice, and knew nothing of the purchase, but afterwards approved it, and without notice paid the purchase-money and procured a convey- ance, the person first contracting was considered from the begin- ning as the agent of the actual purchaser, who was therefore held affected with notice.^ A settlement, in consideration of marriage, is equivalent to a purchase for a valuable consideration, and may be pleaded in the same manner.^ If a settlement is made after marriage, in pursu- ance 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- deeds 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 confirm her jointure ; ^ but a plea of this na- ture must set forth the settlement and the lands comprised in it with sufficient certainty.^ Some doubt appears to have been entertained whether a plea of purchase for valuable consideration will avail against a legal title. Tlie point was fully discussed by Lord St. Leonards in his "Trea- tise on the Law of Vendors and Purchasers," where the cases upon the subject will be found ; but the moderu authorities seem to de- cide that such a defence may be pleaded." Tlie learned writer's opinion appears to be in favor of the doctrine, that such a plea will be protection against a legal as well as an equitable claim.*^ > Lord Red. 278 ; Brotherton v. Hatt, 2 Vern. 574 ; Le Neve v. Le Neve, 3 Atk. 646 ; Maddox v. Maddox, 1 Ves. 62 ; Ashley v. Balllie, 2 Yes. 370 ; Hiern V. Mill, 13 Ves. 120; Mountford v. Scott, 3 Madd. 34; Story Eq. PI. § 808; Griffith V. Griffith, 1 Hoff. Ch. Rep. 153. 2 Lord Red. 278 ; Jennings v. Moore, 2 Vern. 609 ; Blenkarne v. Jennens, 2 Bro. P. C. 278. See Molony v. Kernan, 2 Dr. & W. 31. » Lord Red. 278 ; Harding v. Hardrett, Finch, 9. ♦ Lord Red. 279 ; Lord Keeper v. Wyld, 1 Vern. 139. • Lord Red. 279 ; ante, pp. 596, 597. « Lord Red. 279 ; Petre v. Petre, 3 Atk. 511 ; Pyncent v. Pyncent, 3 Atk. 571 ; Senhouse v. Eari, 2 Ves. 450 ; Leech v. Trollop, ibid. 662. ' 2 Sugden on Vendors (7th Am. ed.), Km et seq. ; Penny v. Watts, 2 De G. & Sm. 517 ; 1 Mac. & Gor. 150 ; Attorney-General v. Wilkins, 17 Beav. 285. 8 Wood V. Mann, 2 Sumner, 507. " The point of doubt," says Mr. Justice Story, " has been, whether the defence ought to apply to a case, where the plain- tiff founds his bill upon a legal title, seeking to support it by a discovery, and the TOO PLEAS. The rules for the guidance of a pleader framing pleas of this de- scription have been so clearly and succinctly laid down by Lord St. Leonards, in his work on Vendors and Purchasers, that it will be sufficient to give the following extracts from that valuable work : ^ — " The plea must state the deeds of purchase, setting forth the dates, parties and contents briefly, and the time of their execution, for that is the peremptory matter in bar.^ " It must aver that the vendor was seised, or pretended to be seised, at the time he executed the conveyance.^ " If the conveyance pleaded be of an estate in possession, the plea must aver that the vendor was in possession at the time of 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 en- titled to the reversion. 5 But, although a bill be brought by an heir, defendant relies solely on an equitable title to protect himself from the discovery. Upon this point the authorities are at variance ; but upon principle, it would seem difficult to resist the reasoning, by which the doctrine, that the purchaser is, in such a case, entitled to protection, is supported." Story Eq. PI. § 604 a. See 3 Sugden Vend. & Purch. (6th Am. ed.) 349, 350 [495] ; Snelgrove v. Snelgrove, 4 Desaus. 288, where this point is fully examined, and the Chancellor (Desaus- sure) remarks : " It should be remembered, that the plea protects, by the Court refusing to aid the plaintiff in setting up a title. Now, when the title attempted to be set up is an equitable one, it seems very reasonable that the Court should forbear to give its assistance in setting up such equitable title against another title set up by a fair purchaser. But when the plaintiff comes with a legal title, I do not see how he can be refused the aid of the Court." See also Larrowe v. Beame, 10 Ohio, 498. ' This subject is fully discussed in Snelgrove v. Snelgrove, 4 Desaus. 286 ; 2 Sugden Vend. & Purch. (7th Am. ed.) 1067 et seq. ; Cardwell v. Cheatham, 2 Head (Tenn.), 14. The same explicitness has been held not to be necessary in setting up the defence of boyid Jide purchase for a valuable consideration, without notice, when made in an answer as In a plea. Servis v. Beatty, 32 Miss. (3 George,) 52. 2 See Gilb. For. Rom. 58 ; Aston v. Aston, 3 Atk. 302, and 2 Ves. 107, 396 ; and see Walwyn v. Lee, 9 Ves. 24. It seems that the practice formerly was to extend the plea to the discovery even of the purchase-deeds ; and in Watkins v. Hatchet, 1 Eq. Ca. Ab. 33, pi. 3, although the purchaser improvidently offered to produce his purchase-deeds, yet the Court would not bind him to do so. » Story V. Lord Windsor, 2 Atk. 630 ; Head v. Egerton, 3 P. Wms. 279 ; and see 17 Ves. 290 ; Jackson v. Rowe, 4 Russ. 514 ; Craig v. Leiper, 2 Yerger, 193 ; Lanesborough v. Kilmaine, 2 Moll. 403 ; Snelgrove v. Snelgrove, 4 Desaus. 287. * Trevanian v. Mosse, 1 Veru. 246 ; and 3 Ves. 226 ; 9 Ves. 32 ; see also Jack- son V. Rowe, 4 Russ. 614. '" Hughes V. Garth, Ambl. 421. OF THE DIFFERENT GROUNDS OF PLEAS. 701 the plea need not, on that account, aver the purchase to be from the phihitiflf's ancestor.^ " The plea must also disthictly aver that the consideration-money mentioned in the deed was bond fide and truly paid,^ 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 payment of it ; the particular consideration 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 inade- quacy J The question is, not whether the consideration is adequate, but whether it is valuable. For if it be such a consideration as will not be deemed fraudulent within the statute 27th Elizabeth, or is not merely nominal,^ or the purchase is such a one as would hinder a puisne purchase from overturning 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 the deed and payment of the pur- chase-money;^^ for, till then, the transaction is not complete ; and, ^ Seymour v. Nosworth, 2 Freem. 128 ; 5 Cha. Rep. 23 ; Nels. Cha. Rep. 135. * Moor V. May how, 1 Cha. Ca. 34. See 2 Atk. 241 ; Story Eq. PI. § 805 ; Jew- ett V. Palmer, 7 John. Ch. 65 ; High v. Batte, 10 Yerger, 335 ; Donnell v. King, 7 Leigh, 393 ; Malony v. Kernan, 2 Dr. & War. 31 ; Snelgrove v. Snelgrove, 4 Desaus. 286. 3 Maitland v. AVilson, 3 Atk. 814. See 2 Sugden Vend. & Pureh. (7th Am. ed.) 1069. * Hardingham v. NichoUs, 3 Atk. 304 ; as to necessity of proof, Moloney v. Kernan, 2 Dr. & War. 31. ^ Millard's Case, 2 Freem. 43 ; Snag's Case, cited ib. ; and see Wagstaff v. Read, 2 Cha. Ca. 156 ; High v. Batte, 10 Yerger, 335 ; Donnell v. King, 7 Leigh, 393. ^ Moor V. Mayhow, 1 Cha. Ca. 34 ; Day v. Arundell, Hard. 510. ' Basset v. Nosworthy, Finch, 102; Ambl. 767 ; Mildmay v. Mildway, Ambl. 767, cited Bullock v. Sadlier, Ambl. 764. 8 See Moor v. Mayhow, 1 Cha. Ca. 34 ; Wagstaff v. Read, 2 Cha. Ca. 156. ■» Lady Bodmin v. Vendebendy, 1 Vern. 179; Anon. 2 Ventr, 361, No. 2; Cummings v. Coleman, 7 Rich. Eq. (S. C.) 509. 1" Moor V. Mayhow, 1 Cha. Ca. 34 ; Story v. Lord Windsor, 2 Atk. 630 ; At- torney-General V. Gower, 2 Eq. Ca. Ab. 685, pi. 11 ; Aiken v. Smith, 1 Sneed (Tenn.) 304 ; Wilson v. Hillyer, 1 Saxton, (N. J.) 63 ; Story Eq. PI. § 806 ; Jew- ett V. Palmer, 7 John. Ch. 65 ; Gordon v. Rockafellow, Halst. Dig. 169 ; Pillow V. Shannon, 3 Yerger, 508 ; Murray v. Ballou, 1 John. Ch. 566 ; Heatley v. Fin- ster, 2 John. Ch. 158 ; Murray v. Finster, 2 John. Ch. 155 ; M'Gahee v. Sneed, 1 59* 702 PLEAS. therefore, if the purchaser have notice previously to that time, he will be bound by it ; and the notice so denied must be notice of the existence of the plaintiff's title, and not merely notice of the existence of a person who- could claim under that title.^ But a denial of notice, at the time of making the purchase and paying the purchase-money, is good ; ^ and notice before the purchase need not be denied, because notice before is notice at the time of the purcliase ; ^ and the party will, in such case, on its being made to appear that he had notice before, be liable to be convicted of perjury ;4 "The notice must be positively and not evasively denied,^ and must be denied whether it be or be not charged by the bill.*^ If particular instances of notice or circumstances of fraud are charged, tlie facts from which they are inferred must be denied as specially and particularly as charged^ " But the defendant need only by his plea deny notice gener- ally, unless where facts are specially charged in the bill as evi- dence of notice.*^ Dev. & Bat. 333 ; Frost v. Beekman, 1 John. Ch. 288 ; De Mott v. Starkey, 3 Barb. Ch. 403 ; Boone v. Chiles, 10 Peters, 177, 211, 212 ; Williams v. Hollings- worth, 1 Strobh. Eq. 103 ; Ellis v. Woods, 9 Rich. Eq. (S. C.) 19. 1 Kelsall V. Bennett, 1 Atk. 522, which has overruled Bramton v. Barker, 2 Vern. 159, cited, 2 See Snelgrove v. Snelgrove, 4 Desaus. 287 ; Murray v. Finster, 2 John. Ch. 155,157. ^ To make the plea of bona Jide purchaser without notice available, the notice before the whole of the purchase-money was paid and conveyance received, must be denied. Natz v. M'Pherson, 7 Monroe, 599 ; Frost v. Beekman, 1 John. Ch. 298, 303 ; Jewett v. Palmer, 7 John. Ch. 65 ; High v. Batte, 10 Yerger, 385. * Jones V. Thomas, 3 P. Wms. 243. 5 Cason V. Round, Prec. in Cha. 226 ; and see 2 Eq. Ca. Abr. 682, (D.), n. (b.) » Aston V. Curzon and Weston v. Berkeley, 3 P. Wms. 244, n. (/) ; and see the 6th resolution in Brace v. Duke of Marlborough, 2 P. Wms. 491 ; Lowry v. Tew, 3 Barb. Ch. 407. T Meder v. Birt, Gilb. Eq. Rep. 185 ; Radford v. Wilson, 3 Atk. 815 ; and see Jerrard v. Saunders, 2 Ves. jr. 187 ; 4 Bro. C. C. 322 ; 6 Dow. 230; Wilson i;. HlUyer, 1 Saxton (N. J.), 63 ; Denning v. Smith, 3 John. Ch. 345 ; Balcom v. N. Y. Life Ins. and Trust Co. 11 Paige, 454 ; Lowry v. Tew, 3 Barb. Ch. 407; Manhattan Co. v. Evertson, 6 Paige, 457; Galatian v. Erwin, 1 Hopkins, 48; Pillow V. Shannon, 3 Yerger, 508. « Pennington v. Beechey, 2 S. & S. 282 ; Thring v. Edgar, 2 S. & S. 274 ; Griffith V. Griffith, 1 Hoff. Ch. R. 163. This rule will not, however, apply to an answer in support of a plea unless the plea is negative ; see ante, p. 644. OF THE DIFFKRENT GROUNDS OF PLEAS. 703 " Notice must also be denied by answer, for that is matter of fraud and cannot be covered with the plca,^ because tlie plaintiff' must have an opportunity to except to its sudficicncy if he think fit; 2 but it must also be denied l)y the plea, l)ecause otherwise there is not a complete plea in Court on which the plain tifT may take issue.^ " If notice is omitted to be denied by the plea, and the plaintiff reply 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.* " 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." ^ It is to be noticed, that a plea of purchase for a valuable con- sideration protects a defendant from giving any answer to a title set up by the plaintiff; but a plea of bare title only, without set- ting forth a consideration, is not sufficient for that purpose.*" It will also protect a defendant from tlie discovery of deeds and writ- ings, except of the purchase deed which is pleaded.'^ ^ Care must be taken in case of a plea of a purchase for a valuable considera- tion without notice, not to make an answer to any statements in the bill actually and properly covered by the plea ; for notwithstanding some doubts formerly en- tertained, it seems now established, that in such a case, if the defendant answer at all to the matters covered by the plea, he must answer fully ; and if he puts in a general answer, he cannot protect himself by such a defence in his answer from answering fully. Story Eq. PL § 606, and note, and cases cited, § 810, note. The 39th Equity Rule of the United States Courts gives to such a person the right to protect himself by answer, as he might by plea. Story Eq. PI. § 847, note, § 846, note. " Anon. 2 Cha. Ca. 161 ; Price v. Price, 1 Vern. 185 ; Foley v. Hill, 3 M. & C. 474. 3 Harris v. Ingledew, 3 P. Wms. 91 ; Meadows v. Duchess of Kingston, Lord Red. 263, n.; Amb. 756 ; 3 Mer. 171. * Harris v. Ingledew, 3 P. Wms. 91 ; Eyre v. Dolphin, 2 Ball & B. 302. « Jackson v. Rowe, 2 S. & S. 472 ; 4 Russ. 514. If a party means to defend himself, on the ground, that he was a bond Jide purchaser for a valuable consid- eration, without notice, he must deny the fact of notice, and of every circumstance from which it can be inferred. Murray v. Ballon, 1 John. Ch. 575 ; Balcom v. N. Y. Life Ins. & Trust Co. 11 Paige, 454. « Brereton v. Gamul, 2 Atk. 241. ' Salkeld V. Science, 2 Ves. 107 ; Story Eq. PI. § 809. See 1 Story Eq. Jur. § 410 and note ; Lube Eq. PI. 245, 246. 704 PLfiAS. 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 protect him from the discovery sought, except so far as such discovery is material to enable the plaintiff to avoid the elfect of the matter pleaded. It has been already stated, that a defendant may not only an- swer an amended bill, but he may defend himself fi'om 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 bills. But if a defendant has answered the original bill, his an- swer may be read to counterplead his plea to the amended bill ; and if, upon so reading it, it should appear that the facts stated upon the answer to the original bill would operate to avoid the defence made by the plea to the amended bill, the plea will be overruled.^ Section III. Of the Form of Pleas. A PLEA is preceded by a title in the following form : — " The Plea of A. B. a defendant, to the bill of complaint of X. Y. com- plainant " ; or, " The joint and several plea of A. B. and C. D. defendants.''^ Where a plea is accompanied by an answer, it must be intituled " The plea and answer," or, " The joint plea and answer,^' or, " The joint and several plea and answer," according to the cir- cumstances. A plea, like a demurrer, is introduced by a protestation against the confession of the truth of any matter contained in the bill.^ 1 Ante, p. 607. * Lord Red. 299 ; Hyllard v. White, ib. ; Noel v. Ward, 1 Mad. 322 ; Hild- yard v. Cressy, 3 Atk. 303. » Lord Red. 242 ; Mitford Eq. PI. by Jeremy, 300 ; Story Eq. PI. § 694. The reasons for the introduction of this form have been before alluded to (ante, p. 610). It may be observed here, that, at common law, protestation in pleading has been declared unnecessary by Reg. Gen. Ilil. T. 4 Will. IV. Reg. 12. Pro- testations are not allowed in pleas in New Hampshire. Rule 6, of Chancery Practice, 38 N. Ilamp. 606. OF THE FORM OF PLEAS. 705 The extent of the plea, that is, whether it is intended to cover the whole bill or a part of it only, and wliat part in particular, is usually stated in the next place ; and this, as before observed, must be clearly and distinctly shown. ^ Before the Orders of August, 1841, a plea, like a demurrer, was liable to be overruled, if the answer accompanying it extended to any part of the bill covered by the plea ; and the same, if not a greater degree of accuracy, was required in applying this rule to a plea. The -36th and 37tli Orders of August, 1841, have, however, now so far modified this strict practice, that a plea is no longer liable to be overruled only because it does not cover so much of the bill as it might have extended to, or only because the answer of the defendant extends to some part of the same matter as is covered by the plea.^ The matter relied upon as an objection to the suit or bill gener- ally follows, accompanied by such averments as are necessary to support it.^^ The general requisites of a plea have been already discussed at considerable length ; it is unnecessary, therefore, now to allude to them further than to remind the reader, that they must be founded ■upon matter not apparent upon the face of the bill ;* — they must reduce the case 'to a single point,^ except where leave has been obtained to plead double ,6 and they must be supported by proper averments.'^ In addition to the above requisites it may be added, that a plea must be certain ; it must tender issuable matter, the truth or false- hood of which may be replied to or put in issue. ^ A plea must also cover the whole case made by the bill, or by that part of it which the plea afFects to cover, otherwise it will be 1 Lord Red. 300; Mitford Eq. PI. by Jeremy, (5th Am. ed.) 300, note (1), in ■which the editor has given the opinion of Chancellor Walworth upon this point, as pronounced in Leacraft v. Demprey, 4 Paige, 124. See Story Eq. PI. § 694. If an answer commences as an answer to the whole bill. It overrules a plea and de- murrer to any particular part of the bill, although such part is not in fact an- swered. Leacraft v. Demprey, 4 Paige, 124. A defendant may plead, answer, and demur, to the same bill ; but these several defences must each refer to, and in terms be put in as a defence to, a separate and distinct part of the bill. Lea- craft V. Demprey, 4 Paige, 124. 2 See p. 607. « Lord Red. 300 ; Story Eq. PI. § 694. * Ante, p. 629. 6 Ibid. 629. « Ibid. 632. ' Ibid. 635. * Nabob of Arcot v. East India Company, 3 Bro. C. C. 292. 706 PLEAS. overruled.^ And so where, to a bill praying a reconveyance of four estates, the defendant put in a plea of a fine and non-claim as to one, averring that the estate comj)rised in the fine was the only part of the estates comprised in the bill to which he had or claimed a right ; the plea was, in like manner, overruled.^ With respect to the language of pleas, the reader's attention is recalled to the observations made in another part of this work,^ in which, in the framhig even of bills, the propriety of adhering to the known technical language of the Courts, in all cases where such language is applicable to the case, has been discussed ; it only remains to add, that 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 matters of substance, as in pleas at law.^ The same observation may, however, be repeated here which has been made in the part of this book before referred to, namely, that although the use in pleadings in Equity of such technical expres- sions as have been adopted in pleadings at common law is desirable, it is not absolutely necessary ; and that the same thing may be ex- pressed in any terms which the pleader may select' as proper to con- vey his meaning, provided they are adequate to the purpose.^ All the parts, however, which are necessary to render the plea a com- plete 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 plaintiff may take issue upon it.^ And it is to be observed, that ' Wedlake v. Hutton, 3 Anst. 633 ; Story Eq. PI. § 693. If there is any mat- ter of Equity in the bill to which the plea does not set up a bar, and which is not denied by way of answer, the plea must be set aside. Piatt v. Oliver, 1 McLean, 303. If the plea is to the whole bill, but does not extend to or cover the whole, the plea is bad. Bell v. Woodward, 42 N. Hamp. 192, 193. 2 Barker v. Ray, 5 Mad. 64 ; Watkins v. Stone, 2 Sim. 49 ; Hook v. Dorman, 1 S. & S. 227 ; Hoare v. Parker, 1 Cox, 224 ; S. C. 1 Bro. C. C. 5 78 ; Lord Red. 217, n. 2 Ante, p. 367. * See Marselis v. Morris Canal," &c., 1 Saxton, N. J. 31 ; Story Eq. PI. § 658. In pleading matters of substance the same strictness is required in Equity as at Law. Burditt v. Grew, 8 Pick. 108. * Ante, p. 36 7. ' Lord Red. 298; see Newman v. Hutton, 3 Beav. 116; Overton v. Banister, 4 Beav. 205. The plea should state so distinctly to what part of the bill it is intended to apply, that the Court can determine, on examination of the bill, what OF THE FORM OF PLEAS. 707 averments in general ought to be positive,^ for unless the averment is positive, the matter in issue is not the fact itself, but tlie defend- ant's belief of it ; and in all cases, therefore, averments should be positive, as the conscience of the defendant is saved by the nature of the oath administered, which is, that so much of the plea as re- lates to his own acts is true, and that so much as relates to the acts of others he believes to be true.^ The plea having stated the facts upon which it is founded, com- 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 tiie bill, or such part as is pleaded to.^ Where a plea is accompanied by an answer, the answer must follow the conclusion of the plea. If the answer is merely to sup- port the 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 an answer to the rest, it is expressed to be an answer to so much of the bill as is not before pleaded to, and is preceded by the same protestation against waiver of the plea,^ A plea must be signed by counsel,® and sworn to in the same manner as an answer, in such cases as require it to be put in upon oathJ It seems, however, that where pleas are not to be sworn to, parts are covered by it. Davison u. Schermerhorn, 1 Barb. Ch. 480. Where the plea does not go to the whole bill, it must clearly point to the part of discovery or relief intended to be covered by it, but, if overruled for a defect in this par- ticular, the defendant will not thereby be precluded from insisting upon the same matter in his answer as a defence pro tanto. Jarvis v. Palmer, 11 Paige, 650. ^ Foster v. Vassall, 3 Atk. 5i)0; Story Eq. PI. § 662. 2 Lord Red. 298 ; Story Eq. PI. § 662, 664 ; Bolton v. Gardner, 3 Paige, 273; Heartt v. Corning, 3 Paige, 566. » Lord Red. 300. * Lord Red. 300. A question not raised by the plea cannot be raised by an answer in support of the plea. Such an answer forms no part of the defence ; but is that evidence which the plaintiff has a right to require, and to use to invali- date the defence made by the plea. Such answer can be used only to support or disprove the plea. Andrews v. Brown, 3 Gushing, 133 ; Lord Red. 199. * Lord Red. 300 ; Story Eq. PI. § 695. « Simes v. Smith, 4 Mad. 366. '' In the Courts of the United States, no plea shall be allowed to be filed 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, that it is not inter- posed for delay, and that it is true in point of fact. United States Equity Rule, 31. 708 PLEAS. they may be received and filed, though under the hand of counsel only.^ It is said by the noble and learned author of the " Treatise on the Pleadings in the Court of Chancery," that " pleas to the juris- diction of the Court, or in disability of the person of the plaintiff, as well as pleas in bar of any matter of record, or of matters re- corded, or as of record in the Court itself, or any other Court, may be put in without oath." ^ This proposition may, perhaps, be stated rather too broadly, as some pleas, which may be called pleas to the jurisdiction, must be upon oath.^ Perhaps the best mode to be adopted by the practitioner, for de- termining the question as to a plea being or not being upon oath, will be to consider how far it will be necessary, in the event of the plea being considered valid, and issue being joined upon it, to es- tablish its truth by evidence upon oath at the hearing ; and in all cases where such evidence upon oath would be required at the hearing, to let the plea be accompanied by the oath of the defend- ant; for the principle upon which the Court acts, in requiring pleas to be put in upon oath, is, that it will not permit a defendant to delay or evade the discovery sought by the plaintiff", unless he will first pledge his oath to the truth (or at least to his belief of the truth) of the facts upon which he relies, in all cases where the facts are those of which the Court does not take judicial notice.* The matters of which the Court will take judicial notice have been before enumerated;^ and amongst them it will be found, 1 Beames's Ord. 172. » Lord Red. 301 ; Story Eq. PI. § 696. ' Gibson v. "WTiitacre, 2 Vem. 83 ; and see Joseph v. Tuckey, 2 Cox, 44. In the case of Kirkraan v. Andrews, 4 Beav. 554, Lord Langdale, M. R., held, that a plea on information and belief of the plaintiff's bankruptcy, was sufficient. * See Wild v. Gladstone, 3 De Gex & Sm. 740. The rule is inflexible in Chancery proceedings, that a plea of matters in paL<, and pleas in bar of matters in pais, must be filed on oath. Dunn v. Keezin, 3 Scam. 297. A plea must be verified by oath, although the plaintiff has expressly waived an answer from the defendant on oath. Heartt v. Corning, 3 Paige, 566 ; Bassett v. Company, 43 N. Hamp. 251. A plea is not evidence in behalf of the defendant, as to the facts stated in it, so as to require the testimony of more than one witness to contradict it; even where it negatives a material averment in the bill. Heartt v. Corning, 3 Paige, 569. See Saddler v. Glover, 1 B. Monroe, 53 ; Story Eq. PI. § 696;; 1 Smith Ch. Pr. (2d Amer. ed.) 231, 232 ; Caroll v. Waring, 3 Gill & John. 491 ; Bassett v. Company, 43 N. Hamp. 251 ; Story Eq. PI. § 696. A plea, if not on oath, will be set aside on motion. Bassett v. Company, 43 N. Hamp. 249. * Ante, p. 568. OF THE FORM OF PLEAS. 709 that the Court of Chancery takes judicial notice of the existence and course of proceeding of the superior Courts at Westminster, and the other Courts of general jurisdiction. It will also receive as evidence, which does not require the sanction of an oath, cop- ies, properly authenticated, of the records of all other Courts of Record. It also pays attention to its own proceedings, although not actually recorded. When, therefore, any matter is introduced into a plea which involves the existence or jurisdiction of the Courts of Record above alluded to, or which can be proved by the production of the records of other Courts, or authenticated copies of them, or by inspection of its own proceedings, no oath is required. With regard to pleas of matters of record, if the matter pleaded is purely matter of record, or, in other words, which may be proved by the record, the oath of the party is not necessary ; but if any fact in pais is introduced, wliich would require to be proved at the hearing, the plea must be upon oath. Thus, where a defend- ant pleaded tlie statute 32 Hen. VIII. c. 9, against selling pre- tended titles, with the necessary averments of want of possession, lc it is that a decree of dismissal, signed and enrolled, may be pleaded without oath. Upon the same prin- ciple, a plea of outlawry or of excommunication may be put in without oath, and so may a plea of conviction of felony.* With respect to matters not so recorded, they may be capable of proof aliunde ; but, if pleaded, the plea must be accompanied by the oath of the party ; unless, indeed, they consist of trans- actions in the Court itself, which, although they have not been sol- emnly and formally enrolled, are quasi of record. Pleas of such matters, as well as matters of record, may be put in without oath ; ^ 1 Phillips on Evidence. 387. - BuUer's N. P. 228. For further information on this subject, see 14 & 15 Vict. c. 99, s. 14. » See Wall v. Stubbs, 2 V. & B. 543 ; v. Davies, 19 Ves. 81. * V. Davies, ubi supra. OF THE FORM OF PLEAS. 711 for, as the Court is in the habit of noticing its own proceedings, they are capable of proof without any other evidence than the production of the proceeding itself, or an office copy of it, signed by the proper officer. With reference to the subject of pleas of matter of record, it may be observed, that, in the case of a plea of outlawry of the plaintiff, it was formally usual, as well at Law as in Equity, to an- nex to the plea a copy of the whole record of outlawry, duly au- thenticated by the seal of the Court from which it has issued, in order that tlie Court may judge immediately of the truth of the plea ; ^ but latterly it has been the practice to annex the capias ntlagatum only, under the seal of the Court,^ or of the proper office (which is, in fact, the seal of the Court) ; and this appears to be now the rule in pleas of this description. And where, in- stead of a copy of the capias ntfagatum, duly authenticated, the defendant annexed a certificate, under the seal of the Clerk of the Outlawries, the plea was held bad.^ A plea by a peer, or a person having privilege 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. It is to be observed, that where a plea, which ouglit to be upon oath, is put in without one, the irregularity is not one which can be waived by the plaintiff's taking any proceeding upon it.* » Co. Litt. 128^>; Ld. R. 184. ' 4 Lutwyche, 6 ; 5 Bac. Ab. 235. » 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 (who is a publii; ollicer), and not of the defentlant. * Wall r. Stubbs, 2 V. & li. 3 J4. li" a plea is not verified by the oath of the defendant, the plaintiff may apply for an order to set it aside, or to have it taken off the files of the Court ; but he cannot make the objection upon the argument of the plea. Heartt i'. Corning, 3 Paige, 566 ; Bassett c. Company, 43 N. Ilamp. 251; 1 Newland Ch. P. 117. 712 PLEAS. Section IV. Of Filings Setting down^ and Arguing Pleas. A PLEA, being drawn, or perused and settled by counsel, must be fairly engrossed upon parchment ; the jurat, where the plea is upon oath or upon attestation of honor, being written at the top on the left side. Where there is no oath or attestation required, i\\Q jurat, of course, is omitted.^ The plea must be endorsed with the name and address of the defendant's solicitor, in manner before stated,^ and after it is sworn it may be filed with the Clerk of Records and Writs, notice of which must the same day be giveu to the solicitor of the plain- tiff.3 Where a plea is not put in upon oath, it may be carried by the solicitor to the Clerk of Records and Writs for filing, as soon as it has been duly prepared. Where a plea is put in upon oath, it must be sworn to in the same manner as an answer. The practice will be stated in the next Chapter on that subject. With respect to the time within wiiich the defendant is at liber- ty to })ut in a* plea to either the whole or part of a bill,^ the result of the 13th section of 15 ers, the order being still a matter of course. « The proceedings with regard to setting down a plea for hearing are, in all respects, similar to those to be adopted in cases of de- murrers.^ ' Kay V. Marshall, 1 Keen, 196; Anon. 2 P. Wms. 4G4 ; Jones c. Earl of StralTord, 3 P. Wuis. 79; Roberts v. Hartley, 1 I5ro. C. C. 56; Do .Minekuitz v. Udney, 16 Vcs. 355 ; Newman r. White, 16 Beav. 4 ; Iloartt v. Corning, 3 Paige, 566. The filing either an answer, plea, or demurrer, is said to be a couipliance with the rule to answer, in Braeken v. Kennedy, 3 Seam. 564. If Curtlier time is given to answer, it is inijtroper to file a demurrer without leave of the Court. lb. Demurrer to part is not a eomplianee with an order to answer. Kenriek v. Clay- ton, 2 Bro. C. C. (Perkins's ed.) 214, and notes; S. C. 2 Dick. 685; Lansdown V. Elderton, 8 Sumner's Vesey, 526, note (1), and cases cited. Plea under an order for time to answer is regular. 8 Sumner's Vesey, 256, note (1). » 1 Y. & C. 271 ; and 11 L. J. 169. * Jones v. Segueria, 1 I'h. 82. * Bearaes's Ord. 175; Thomas c. Brasher, 4 Monroe, 6 7. J].\ceptions are never filed to a plea, but if the party conceives the plea to be defective, either in form or substance, he may on motion or petition, have the plea itself set down for argument. Ravmond v. Simonson, 4 Blaekf. 79. Ante, p. 478 et scq. If the plaintiff questions the validity of a plea in bar 60* i 714 PLEAS. It is to be observed that, after a plea has been filed, no step can be taken in the cause till it has been disposed of. Thus there can be no motion for an injunction till the plea has been argued. The Court has, however, in such cases, at the instance of the plaintiff, expedited the hearing of the plea, and given the plaintiff leave to move on the same day that it comes on, if the plea should be over- ruled upon argument, that an injunction may issue.^ So, also, if a defendant pleads to part, and answers to the resi- due of the bill, the plaintiff cannot except to the answer till the plea has been argued,^ unless in cases where the plea is confined to the relief prayed, and the defendant professes to answer as to the whole discovery required ; in such cases, it seems the Court will not require the plaintiff to set down the plea before he excepts to the answer for insufficiency.^ Tiie rule which requires a plea to be disposed of upon argu- ment, before any further proceedings are had in the cause, applies equally to cases where the defendant, as well as to cases where the plaintiff, seeks to move in the cause. Thus, where a plea has been filed, the bill cannot be dismissed lor want of prosecution till the plea has been argued.'' And so if a defendant plead in bar, he cannot move for the plaintiff to make his election, till the plea has been argued ; for the plea, by insisting that the plaintifi' is not en- titled to sue in Equity, denies that he has an election ; ^ and if an order for the plaintiff to make his election has, under such cir- cumstances, been made, the same will, on motion, be discharged.^ By the 48th Order of May, 1845, " where a plea to the whole or part of a bill is allowed, upon argument, the plaintiff, unless ho undertakes to reply to the plea, or the Court orders to the con- trary, is to pay to the party by whom the plea is filed the costs of to the wliolo will, without replying, the defendant must set it down for argument; if held bad, the defendant must answer ; if sustained, the plaintiff must reply ; if he does reply and takes issue, the determination of that issue is final. Flagg i'. Bonnel, 2 Saxton (N. J.), 82. ^ Iluniphrevs v. Humphreys, 3 P. Wms. 397. - Darnell v. Keynv, 1 Vern. 344. Where the plaintiff excepts to the answer accompanying a plea, before the argument of the plea, the truth of the plea is admitted. Brownell v. Curtis, 10 Paige, 210. 3 Pigot I'. Stace, 2 Dick. 496; Sidney v. Perry, ib. 602. ♦ Anon. Barnardist. 280; 1 Ilarr. 316, Newland's ed. * Anon. Mos. 304. « Vaughan v. Welsh, Mos. 210. OF FILING, SETTING DOWN, AND ARGUING PLEAS. 715 the plea, and if the plea be 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." By the 49th of the same Orders, " where a plea to the whole or part of a bill is not set down for argument within three weeks after the filing thereof, and the plaintiff" does not within sucli three weeks serve an order for leave to amend the bill, or does not within such three weeks by notice in writing undertake to reply to the plea, the plea is to be held good to the same extent and for the same pur- poses, and the same costs are to be paid by the plaintiff", as in the case of a plea to the whole or part of a bill allowed upon argu- ment ; and where the plea is to the whole bill, the defendant by whom such plea was filed may at any time after the expiration of such three weeks obtain as of course an order to dismiss the bill," ^ Under these Orders the plaintiff* has three weeks within which he may either set down the plea for argument, or undertake to re- ply to it, or serve an order for leave to amend his bill ; if he con- ceives the plea to be good, though not true, his course is to reply to the plea, and take issue upon it, and proceed to examine wit- nesses, as in the case of an answer. If he neither amend the bill, undertaking to reply to the plea, nor set it down for argument, the defendant may move that he may pay the costs of the plea and the suit ; but it would a[»pear that such motion must be after notice, in order that the jilaiutifT may have an opportunity of rcjilying to the plea." An order for the dismissal of the bill may, however, be obtained by motion of course.^ If the plaintilf re[)ly, 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 • See also Onlor 16, Art. 19. By tlie 38th Equity Rule of the United States Courts, if tlic plaiiifitf shall not reply to any plea, or set down any plea or de- murrer for arjrunient, on the rule dav, when the saiue is Gled, or on the next sue- ceeding rule day, he shall be deemed to admit the truth and sufficiency thereof, and his bill shall be dismissed aa of course, unless a judge of the Court shall allow further time for tlie pur}K)se. • Roberts v. Jones, 7 Beav. 57. In Massachusetts, " the plaintiff may set down the plea to be argued, or he may take issue upon it, within one calendar month from the time when the same is filed, and, if he fail to do so, the defendant may enter an order to have the bill dismissed with costs, unless good cause be shown to the contrary." Rule 22 of the Rules for Practice in Chancery. • 4yth Order, May, 1845. 716 PLEAS. be dismissed ;^ therefore, where a defendant, in a plea of purchase for a valuable consideration, omitted to deny notice, and the plain- tiff replied to it, and the defendant, at the hearing, proved the pur- chase 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 over- ruled. ^ 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.^ By the 50th of the Orders of May, 1845, " the plaintiff having undertaken to reply to a plea to the whole bill, is not, without the special leave of tlie Court, to take any proceeding against tlie de- fendant, by whom the plea was filed, till after replication." It has been before stated, that if the plaintiff after a i)lea has been filed, and before it has been argued, amends his bill, it will be considered as much an admission of the validity of the plea, as if the same had been allowed on argument. Within the period of three weeks allowed by the 40th Order, and before the plea is set down for argument, the plaintiflf may, if he please, obtain leave to amend his bill as of course, upon condition of paying to the defendant twenty sliillings costs.* It seems that the order in this case ought to state that the plea has not been set down.^ Where the plea has been set down for hearing, the plain- til!' is no longer entitled to amend upon payment of twenty shillings ' Daniels v. Taggait, 1 Gill & John. 311 ; Story Eq. PI. § 697 ; Meeker v. Marsh, 1 Saxton (N. J.), 198; Dows v. McMichacl, 6 Paige, 139. Upon a replication to a plea, nothing is in issue, except what is distinctly averred in the plea ; and if that is established at the hearing, the plea is a bar to so much of the bill as it professes to cover. Fish v. Miller, 5 Paige, 26 ; Cook v. Mancius, 4 John. Ch. 166; MeEwen c. Broadhead, 3 Stockt. (X. J.) 131. The replication is an ad- mission of the sufficiency of the facts pleaded, as a bar, if true. Hughes v. Blake, 6 Wheat. 472; Boganlus v. Trinity Church, 4 Paige, 178; Ciernon v. Boccaline, 2 Wash. C. C. 199; Fish r. Miller, 5 Paige, 26; Daniels v. Taggart, 1 Gill & John. 311; Rhode Island v. Massachusetts, 14 Peters, 210, 257; Dowes v. McMichael, 2 Paige, 345; 6 Paige, 139; Gallagher v. Roberts, 1 Wash. C. C. 820. * Harris v. Ingledew, 3 P. Wms. 94. » Ibid. « 1 llarr. 61 ; Parker v. Alcock, 1 Y. & J. 194. * Jennings v. Pearce, 1 Ves. jr. 448 ; see Thorn v. Germand, 4 John. Ch. 363 ; Brown v. Rickets, 2 John. Ch. 425 ; 4 ib. 363. OF FILING, SETTING DOWN, AND ARGUING PLEAS. 717 costs ; but previously to the Orders of 1828, under such circum- stauces he had to pay five pounds additional costs for the plea. And so where a plea had been set down for argument, and upon its coming on to be heard, the plaintiff declined arguing it, but ap- plied for leave to amend his bill ; the plea was allowed on payment of five pounds costs, and leave was given to amend upon the usual terms.^ Under the 31st Order of 1828, the plaintiff had in such a case to pay the taxed costs instead of the sum of five pounds : this Order has been discharged, but probably the same practice will continue under the 48th Order of May, 1845, notwithstand- ing it directly applies only to the case of a plea allowed on argu- ment.^ The proceedings upon the argument of a plea arc nearly the same, mutatis mutandis, as those upon the argument of a demurrer. It may in addition be observed, that if a plea is supported by an answer, upon the argument of the plea the answer may be read to counterprove the plea, and if the defendant appears not to have sufficiently supporte'd his plea by his answer, the plea must be overruled or ordered to stand for an answer only,^ 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 tlie plaintiff, without replying to it, the matter contained in it must be considered as true.'' If a plea is allowed simply, it is thereby determined to be a full bar to so much of the bill as it covers, if the matter pleaded, with the averments necessary to support it, be true.*' If, therefore, a plea is allowed upon argument, or the plaintiff without argument thinks it, though good in form and substance, not true in point of fact, he may take issue upon it, and proceed to disprove the facts upon which it is endeavored to be supported.'^ This he does by 1 Ix)pe9 V. De Tastet, 3 Mad. 18.3 ; Vernon v. Coe, 1 Dick. 358. * Jones V. Watticr, 3 Sim. 128 ; and see ante, p. 619, note (4), which applies equally to a plea. » Lord Red. 303. See Kirby v. Taylor, G John. Ch. 242 ; Sauzer v. De Meyer, 2 Paige, 574 ; Bo^jardus i'. Trinity Church, 4 Paige, 178. * liogardus v. Trinity Church, 4 Paige, 178 ; Lawrence v. Pool, 2 Sandf. Sup. Ct. ^40. » Gallagher r. Roberts, 1 Wash. C. C. 320 ; Rowley v. Williams, 5 Wis. 151. * Story Eq. PL § 697 ; Bassett v. Company, 43 N. Ilamp. 253. ' Lord Red. 301 ; Bassett v. Company, 43 N. Ilamp. 253. 718 PLEAS. filing a replication in the same manner that he would do if the de- fendant had simply put in an answer to the bill in the usual way."' When the plaintiff has replied to a plea, its validity can never be questioned, but only its truth ; 2 in fact, nothing but the niatters contained in the plea, as to so much of the bill as the plea covers, is in issue between the parties.^ If, therefore, issue is thus taken upon the plea, the defendant must prove the facts which it sug- gests.^ But, if the defendant proves the truth of the matter pleaded, the suit, so far as the plea extends, is barred even though the plea is not good, either in point of form or substance.^ The plaintiff may, if he pleases, go into evidence to disprove the plea, and if he has in his bill alleged any matter which, if true, may have" the effect of avoiding the plea, such as notice or fraud, he may, after replying to the plea, examine any witnesses he may have in support 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 is not admitted by the answer in support of the plea to show the existc'nce of the notice or fraud, to go into evidence in support of the affirmation of the prop- osition.*"' When a plea is allowed, it is considered as a full answer, and an injunction obtained, till answer, will be dissolved upon application as a matter of course." We have before seen, that "where a plea to the whole or part * See post, Chap, on Replication. * Parker v. IMvtlimore, Tree, in Ch. 58 ; Dunsany r. Shaw, 5 Bro. P. C. 267 ; MeEwen v. Broailliead, 3 Stoe cases, instead of overruling the plea, directed it to stand for an answer.^ It may doubted whether, under the altered practice with respect to the mode of answering bills, such an order will now be made. The former practice, when such an order was made, will be found in the cases referred to in the note,^ 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 plaintiff may proceed to have his costs taxed, and to issue process for the recovery of them ; he may also, if the plea has been to the whole bill, and the defendant's time for an- swering has expired, issue an attachment for want of an answer,^ unless leave has been given for an extension of time to answer. In such case the attachment must not be issued till the extended time for answering has expired. The plaintiff may also, if he does not require an answer, immediately file a traversing note.* We have seen before, that after a plea has been overruled a de- fendant cannot demur ore tenus.^ » Lord Red. 303 ; Orcutt v. Orms, 3 Paige, 461 ; Lube's Eq. PI. 46 ; French V. Sliotwell, 5 John. Ch. 5.55 ; Bell v. Woodward, 42 N. Ilamp. 193 ; Sauzer v. De Meyer, 2 Paige, 574 ; Story Eq. PI. § 099 ; Leacrafl r. Deinpsey, 4 Paige, 129. If a plea is ordered to stand for an answer, it is allowed to be a sufBeient answer to so much of the bill as it covers, unless by the order liberty is given to the plaintiff to except. Lord Red. 303 ; Kirby v. Taylor, 6 John. Ch. 242 ; Or- cutt V. Orms, 3 Paige, 459 ; Goodrich v. Pendleton, 3 John. Ch. 394 ; Meeker v. Marsh, 1 Saxton (N. J.), 198. In Orcutt v. Orms, it was said, by Mr. Chancellor Walworth, that the answer will be considered as a full answer, though not neces- sarily a perfect defence. See McCormick v. Chamberlin, 1 1 Paige, 543. - Sellon V. Lewen, 3 P. Wms. 239 ; Alardes v. Campbell, Bunb. 265 ; Brcre- ton V. Gamul, 2 Atk. 240 ; Pusey i-. Desbouverie, 3 P. Wm.s. 315 ; King v. Hol- combe, 4 Bro. C. C. 439 ; Bayley v. Adams, 6 Ves. 586 ; Howling v. Butler, 2 Mad. 245; McCormick v. Chamberlin, 11 Paige, 543; Bassett v. Company, 43 N. Hamp. 254 ; Bell v. Woodward, 42 N. Ilamp. 195, 196. ' Waterton i'. Crofl, 6 Sim. 438. As to overruling plea as frivolous, see Bow- man V. ^larshall, f> Paige, 78 ; 1 Barb. Ch. Pr. 123. In Massachusetts, "if a plea is overruled, no other plea shall be received, but the defendant shall proceed to answer the plaintiff's bill ; and if he fails to do so within one calendar month, the plaintiff may enter an order that the same, or so much thereof as was covered by the plea, be taken for confessed ; and the matter thereof shall be decreed accord- ingly, unless good cause be shown to the contrary." Rule 23, of the Rules for Practice in Chancery. Under Rule 24, it is provided, that " upon a plea being overruled, costs shall be paid as when an answer is adjudged insufficient ; but if adjudged good, the defendant shall have his costs." * See ante, p. 496. * Ante, p. 623. OF FILING, SETTING DOWN, AND ARGUING PLEAS. T21 The rule with regard to pleading again must be understood with this qualification, viz., that the second plea must not be upon the same ground as the first,^ and therefore it has been held that only one plea to the jurisdiction can be allowed. ^ If the plea has been to part of the bill only, accompanied by an answer to the rest, the plaintiff may proceed to compel an answer to the part intended to be covered by the plea, by exceptions to the answer.^ It sometimes happens, that where there is evidently a material ground of defence disclosed in the plea, but owing to some evi- dent 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 judgment whetlier the defendant ought to be called upon for further answer, upon tlie argument, instead of overruling the plea, on the ground of informality, leave was given to the defend- ant to amend it.^ And so where an error in a plea of outlawry • Where a plea has been overruled on the merits, the same matter cannot be set up in the answer, as a bar to the suit, without the si)ecial porniission of the Court. Townshend v. Tuwnshend, .T Paige, 413. See Goodrich v. Tendleton, 4 John. Ch. 549 ; Coster i'. Mun-ay, 7 John. Ch. 167 ; Bush v. Bush, 1 Strobh. 377; Piatt V. Oliver, 1 McLean, 295 ; Ringgold v. Stone, 20 Ark. 526. * Prac. Reg. 325. It is said, in the same work, p. 330, that if outlawry or other matter be pleaded, and the plea is overruled, no other plea shall be after pleaded, but the defendant must auswer. This, however, must be meant to apply to other pleas of the sanie matter. See, however, Rowley v. Eccles, 1 S. & S. 511. « Strickland v. Mackenzie, 1 Dick. 40. See Kuypers v. Dutch Ref. Church, 6 Paige, 570 ; Leacraft v. Dempsey, 4 Paige, 124, 126 ; Story Eq. PI. § 699. If a plea, accompanied by an answer, is allowed, the answer may be read at the hearing of the cause to counterprove the plea. Souzer v. De ISIeyer, 2 Paige, 574 ; Bogardus v. Trinity Church, 4 Paige, 178 ; Story Eq. PI. § 690, 699. ♦ Beames on Pleas, 321. See Meeker v. Marsh, 1 Saxton (N. J.), 198 ; Story Eq. PI. § 894 - 896 ; Smith v. Babcock, 3 Sumner, 583 ; 1 Smith Ch. Pr. (2d Am. ed.) 238, 239; Newman v. Walli-i, 2 Bro. C. C. (Perkins's ed.) 147, note (c), and cases cited. Amendments are in the discretion of the Court. Smith v. Bab- cock, 3 Sumner, 583 ; but their discretion, in this respect, is regulated by rules known in the Courts; Jefferson v. CuUis, 4 Dana, 467 ; and depends upon the gooil faith and reasonableness of the original case, and the cquitablencss of the proposed amendment. See Graham Prac. (2d ed.) 649 - 670. * Mereweathcr v. Mellish, 13 Ves. 437. VOL. I. 61 722 PLEAS. "was occasioned by the Clerk of the Outlawries, who, instead of a copy of the record of the outlawry, or of the capias utiagatiim, gave a certificate of the outlawry, wliich was annexed to the plea, the Court allowed the defendant to amend his plea, by annexing to it a copy of the exig-ent, or record of the outlawry.^ It has also happened that where a plea has offered a substantial defence, but has been so informally pleaded that it would be diffi- cult or impossible to amend it, the Court, instead of allowing the defendant to amend his plea, has given him leave to withdraw it altogether, and plead de novo.^ Liberty to amend, or to plead de woro, however, will only be grant- ed in cases wliere there is an apparent good ground of defence dis- closed by the plea, but owing to some accident or mistake, it has been informally pleaded ; where a substantial ground of defence has been omitted, such permission will not be given. But althougli, where the error is very palpable, the Court will give the defendant leave to amend at the argument of the plea, the most usual course is for the defendant to make a subsequent motion for leave to amend his plea. This form of proceeding is rendered necessary by the circumstance that the Court always re- quires 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.^ It will be recollected, tliat by the recent Act for the amendment of the Practice of the Court of Chancery, facts or circumstances occurring after the institution of the suit may be introduced by amendment ; and it appears that this change in some cases will influence the Court in allowing the amendment of a bill to which a successful plea has been filed.* » Waters v. Mayhew, 1 S. & S. 220 ; Tope v. BIsh, 1 Anst. 59. * Nobklssen v. Hastings, 2 Ves. jr. 84 ; S. C. 4 Bro. C. C. 252 ; Watkins v. Stone, 2 S. & S. 560. A defendant in a bill of revivor cannot plead to the origi- nal bill a plea which has been pleaded by the original defendant and overruled ; Dows V. MeMichael, 2 Paige, 245 ; Souzer v. De Meyer, 2 Paige, 574 ; but if a plea has been put in, and the original defendant has died before argument, the defendant to a bill of revivor may plead the same matter de novo. 1 Barb. Ch. Pr. 125 ; 1 Hoff. Ch. Pr. 389 ; 1 Smith Ch. Pr. (2d Am. ed.) 229. » Newman v. Wallis, 2 Bro. C. C. 147; Prac. Reg. 340; Wood v. Strickland, 2 V. & B. 150, 157 ; Jackson v. Rowe, 4 Russ. 524 ; Nabob of Arcot v. The East India Company, 3 Bro. C. C. 292, 300; 1 Ves. jr. 371. * Tudway v. Jones, 1 K. & J. 691. GENERAL NATURE OF ANSWERS. 723 With respect to the costs to be paid by the plaintiff upon the al- lowance of an amended plea, it was decided in the case of Clayton V. Meadows,^ that the defendant is not entitled to the costs of cor- recting his own mistake, but 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. CHAPTER XYI. OF ANSWERS. Section I. — General Nature of Answers. If the plaintiff file interrogatories in support of his case for the examination of the defendant, and if the defendant can neither protect himself, by demurrer or plea, from answering the plain- tiff's bill, he must put in an answer to the interrogatories.^ By the Civil Law, when the plaintiff had put in his positions be- fore the Judge, the defendant was to put in his contestations or negations of such positions, and the plaintiff had liberty to exam- ine the defendant u{)on interrogatories to supersede the necessity of proof, and these were called the liheUus articulalKs, or articles of the libel, and were generally put in after the first act, when the defendant had answered the positions.-^ The practice of the Courts of Equity has now become very similar to those old rules of the Civil Law, although till recently bills and interrogatories were thrown together, and answers were in all cases necessary. It will be convenient in the first place to state the recent changes by > 2 Hare, 56. • 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- murrer. As it is capable of embracing more circumstances than a plea, it may for this reason be used with much greater propriety in cases where the defendant is not anxious to prevent a discovery, although the plea might be a complete bar. But where, by introdu(;ing additional circumstances, he has a good opportunity of "e.xhibiting his case in a more favorable light, the answer is the best mode of defence. 1 Barb. Ch. Pr. 130. See Youle v. Richards, Saxton (N. J.), 534. When a de- fendant makes his defence by answer he must set up all the various grounds of defence upon which he intends to rely. Warren v. Warren, 30 Vermont, 530. ' For. Horn. 90 ; Story Eq. PI. § 850. 724 OF ANSWERS. orders and statutes in the form of answers, and then to explain the manner in which these new regulations affect the previous law. By the 14th section of 15 & 16 Vict. c. 86, " The answer of the defendant to any bill of complaint in the said Court may contain not only the answer of the defendant to the interrogatories so filed as aforesaid, but such statements material to the case as the de- fendant may think it necessary or advisable to set forth therein ; and such answer shall also be divided into paragraphs numbered consecutively, each paragraph containing as nearly as may be a separate and distinct allegation." Moreover, the Orders of Au- gust, 1852, have given a form, and directed that " answers may be in a form similar to the form set out, with such variations as the nature and circumstances of each particular case may re- quire." Tlie form is as follows : ^ In Chancery. John Lee ....... Plaintiff. James Styles \ and >..... Defendants. Henry Jones ) The answer of James Styles, one of the above-named defendants to the bill of complaint of the above-named plaintiff.^ In answer to the said bill, I, James Styles, say as follows : — 1. I believe that the defendant, Henry Jones, does claim to have ^ In New Hampshire, by Rule 5 of Chancery Practice, 38 N. Hamp. 606, " An- swers shall be entitled with the county in the margin; the style of the court; the title of the cause, that is, the name of the first plaintiff, ' & 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 follows: — " E, , ss. In the Supreme Judicial Court. A. B. & a, V. C. D. & a. " The answer of C. D." " The clause in answers, reserving exceptions, and the protestations in answers, and the common concluding clause in answers, denying combination, and the general traverse, shall be omitted." Rule 6 of Chancery Practice in N. Hamp. And the " idle repetitions, ' this defendant further answering, saith,' and the like in answers, shall be omitted. "Where the names of parties [defendants] are omitted they shall be referred to as defendants." Rule 7. ^ The omission of these words is immaterial. Rabbeth v. Squire, 10 Hare, App. 3. GENERAL NATURE OF ANSWERS. 725 a charge upon the farm and premises comprised in the indenture of mortgage of the first of May, one thousand eight hundred and fifty, in the plaintiff's bill mentioned. 2. Such charge was created by an indenture dated the first of November, one thousand eight hundred and fifty, made between myself of the one part, and the said defendant Henry Jones of the other part, whereby I granted and conveyed the said farm and premises, subject to the mortgage made by the said indenture of the first of May, one thousand eight hundred and fifty, unto the defendant Henry Jones, for securing the sum of two thousand pounds and interest at the rate of five pounds per centum per annum, and the amount due thereon is the said sum of two thousand pounds, with interest thereon, from the date of such mortgage. 3. To the best of my knowledge, remembrance, and belief, there is not any other mortgage, charge, or incumbrance affecting the aforesaid premises. M. N. (Name of counsel.) When no interrogatories are filed by the plaintiff, and the de- fendant volunteers to put in an answer, the answer will be exclu- sively restricted to a statement of the facts that the defendant con- siders it material for his defence should be stated on the record. Wlien the plaintiff files interrogatories the answer will usually be similar in form to what it has been under the old practice ; that is to say, partly the result of the examination of the defend- ant ui)on the interrogatories, and partly the statement of his case.^ In this twofold nature of an answer, pleadings in Equity are dis- tinguished from all other systems of pleading; and even from those that are formed on the same model in the Civil and Ecclesi- astical Courts, from which the proceedings in Chancery are prin- cipally derived ; 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.^ With respect to the propriety of put- ting in any answer where interrogatories are not filed, and with respect to the introduction of a statement of the defendant's case » See Story Eq. PI. § 850; ]\litford Eq. PI. 15, 16. ' Hare on Discovery, 223. 61* 726 OF ANSWERS. in an answer to interrogatories, the rule must be recollected that a defendant is bound to apprise a plaintiff by his answer of the na- ture of the case he intends to set up (and that, too, in a clear un- ambiguous manner) ; and that a defendant cannot avail himself of any matter in defence which is not stated in his answer, even thougli it should appear in his evidence.^ A defendant is not bound to state, upon his answer, the conclu- sions in law which he intends to deduce from the facts he has set out. As a general rule, 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 upon the argument of the case ; but when upon an answer certain facts are stated as evi- dence of a particular case, represented to be the consequence of those facts, and upon which the defence is rested, it is not permit- ted afterwards to make use of the same facts, for the purpose of establishing a different defence from that to which, by the answer, the plaintiff's attention is drawn. A defendant may, however, by his answer, set up any number of defences, as the consequence of the same state of facts, which his case will allow,^ or the ingenuity of his legal advisers may suggest ; thus, in setting up an immemorial payment in lieu of tithes, a defendant has been allowed to rely upon it either as a modus, or as a composition 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 defences set up, and the evidence to prove them was, in either case, the same. In the latter case, certainly, the circum- stance of no notice having been given to determine the composi- tion, was a fact which would not have been necessary, if the de- fendant had succeeded in establishing the payment as a modus ; but it was in no respect inconsistent with the other facts stated in the answer. But although a defendant may be permitted to set up by his an- swer several defences as the consequence of the same state of facts, ^ Stanley v. Robinson, 1 R. & M. 527 ; Harrison v. Borwell, 10 Sim. 382. But lee Hodgson v. Thornton, 1 Eq. C. Ab. 228. * Story Eq. PI. § 851. The defendant may set up, in his answer, matters which have occurred since the filing of the bill. Lyons v. Brooks, 2 Edw. Ch. 110. ' Atkyns v. Lord Willoughby de Brooke, 2 Anst. 397; Atkins v. Hatton, ib. 386; Woolley v. Browuhill, M'Lel. 317; Bishop v. Chichester, 4 Gwill. 1329. GENERAL NATURE OF ANSWERS. 727 or of facts which are consistent with each other, a defendant can- not insist upon two defences which are inconsistent with each other, or are the consequence of inconsistent facts.^ And in the appUcation of this rule, it makes no difference whether the incon- sistent defences are each substantially relied upon, or are set up in the alternative ; " that answer is bad which either contains in- consistent defences, or an alternative of inconsistent defences." ^ But although a defendant cannot, by his answer, set up in oppo- sition to the plaintiff's title two inconsistent defences in the alter- native, he will not be precluded from denying the plaintiff's gen- eral title ; and also insisting, that in case the plaintiff establishes his title, he is precluded from recovering by some other circum- stance which would equally serve to preclude him or any other person in whom the title might be actually vested. Thus, in a tithe suit, the defendant might have denied the plaintiff's title as rector or vicar, and at the same time have set up a dkhIns.^ It is to be observed, with reference to this part of an answer, that although in stating a defendant's case it is necessary to use such a degree of certainty as will inform the plaintiff of the na- ture 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. It may be mentioned also in this place, that 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 doubt- ful 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 pleaded to the bill.^ Thus, it has been held, that a defendant insisting upon the benefit of the Statute of Limita- tions 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 defendant * A defendant may both deny the charges in the bill, and set up distinct de- fences, so they be not wholly inconsistent with such denial. Hoi)per v. Hopper, 11 Paige, 46. » Jesus College v. Gibbs, 1 Y. & C. 145, Exch. R. ; and see Leech v. Bailey, 6 Price, 504. » Carte v. Ball, 3 Atk. 496, 499. * See Cummings v. Coleman, 7 Rich. Eq. (S. C.) 509. » Lord Red. 249. * Norton v. Turvill, 2 P. Wms. 144. The same strictness is not requisite in an answer to a bill in Equity, where the Statute of Limitations is relied on as a de- fence, as in a plea. Maury v. Mason, 8 Porter, 213. 728 OF ANSWERS. 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 fortli the whole matter in the same manner.^ Thus, if a pur- chaser for a valuable 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 plaintiff, it may be more prudent to set out the whole by way of answer, than to rely on the single defence by way of plea, unless it is material to prevent disclosure of any cir- cumstances attending his title.^ . We come now to the consideration of that part of the answer which consists of the examination of the defendant to the interrog- atories.^ In the first place it may be observed that it has always been a rule, and there is nothing in the recent changes to affect the prin- ciple, that a defendant is not bound to answer interrogatories unless * But it is said by Mr. Justice Storj', that " it is very far from being generally true, as is sometiuies alleged in the books, that a defendant may, by answer, avail himself of, and insist upon, every ground of defence, which he could use by way of demurrer, or of plea, to the bill." Story Eq. PI. § 84 7, and notes ; Portarling- ton V. Soulby, 7 Sim. 28. * Lord Red. 249 ; and sec Wray v. Hutchinson, 2 M. & K. 235 ; Milligan v. Mitchell, 1 M. & C. 433. A party setting up a legal right, in his answer to a bill in Equity, is not bound to deny notice of a subsetpient lien or interest, unless the bill alleges notice. Kin^ v. McVikar, 3 Sandford Ch. 192. » 19th Order of August, 1841. By the 16th of the English Orders of 1841, " a defendant was not bound to answer any statement or charge in the bill, unless specially and particularly interrogated thereto, and a defendant was not bound to answer any interrogatory in the bill, except those interrogatories which such de- fendant was required to answer, and where a defendant should answer any state- ment or charge in the bill to which he was not interrogated, only stating his igno- rance of the matter so stated or charged, such answer should be deemed imperti- nent." See Treadwell y. Cleaveland, 3 McLean, 283. The above order has been adopted by the Supreme Court of the United States. See 20th Equity Rule of the United States Courts, January Term, 1842. GENERAL NATURE OF ANSWERS. T29 they are founded upon the previous statements or charges,^ though if he does answer them he will thereby put them in issue.^ There have, moreover, always existed certain special reasons which the defendant might object to the discovery sought by the plaintiff, either because the discovery might subject 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 be- cause it might lead to a disclosure of matters, the subject of pro- fessional 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 the:>e 1 Gerrard r. Sanders, 2 Yes. jr. 454, and 458 ; Miller v. Saunders, 17 Geor- gia, 92 ; Grim v. Wheeler, 3 Edw. Ch. 334 ; Mechanics' Bank v. Levy, 3 Paige, 606 ; Story Eq. PI. § 36, § 37. It is sufficient, however, if the interrogatory is founded upon a statement in the bill, which is inserted therein. merely as evi- dence in support of the main charges. Mechanics' Bank v. Levy, 3 Paige, 606. Where a fact is stated in a bill by way of recital merely, without any interroga- tory calling for an answer as to that fact, the defendant is not bound cither to admit or to deny the same. Mechanics' Bank v. Levy. 8 Paige. 606. The gen- eral interrogatory or recjuest 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," &c., is sufficient to entitle the plaintiff to a full disclosure of the whole subject-matter of the bill, e(iually as if ho had specially interrogated the defendant to every fact stated in the bill, with all the material circumstances. Method, Epis. Church *'. Jaques, 1 John. Ch. 65, 75, 76; Neale v. Hagthorp, 3 Bland, 551. See Story Eq. PI. § 35 to § 38. Special interrogatories in a bill seem not to be absolutely neces- sary. Story Eq. PI. § 38 ; Meth. Epis. Church r. Jaques, 1 John. Ch. 65. By the 40th Equity Rule of the L'nited States Courts, it is provided, that "a defendant shall not be bound to answer any statement or charge in the bill, unless specially and particularly interrogated thereto ; and a defendant shall not be bound to answer any interrogatory in the bill, except those interroga- tories, which such defendant is required to answer," &c. See Story ll(\. PI. § 847, note. » It may be mentioned in this place, that if a bill contains interrogatories which are not founded upon the previous statements or charges, such interrogatories are impertinent. See Small v. Attwoo jects to a particular discovery upon any of the grounds above stated, he may, where the grounds upon which he may object appear upon the bill, decline making such discovery by submission in his an- swer ; 2 and it has been held, that where the ground of objection is, that the discovery would render the defendant lial)le to pains and penalties, the proper course is to submit the point by answer, be- cause by demurring the defendant admits the facts to be true.^ It is a general rule, that the defendant is only required to answer to those points which are necessary to enable the Court to make a decree against him,* and the objection arising from want of materiality is one that the defendant has always been allowed to raise by answer.^ ' A defondant may in some cases answer in part, and by his answer state rea- sons why he sliould not be compelled to make further answer. Hunt v. Gookin, 6 Vermont, 462 ; Adams v. Fisher, 3 My. & Cr, 526 ; Wigram, Diseov. (Am. ed.) 90, el seq. pi. 152, &c. ; Cuyler c. Bogcrt, 3 Taige, 168. See Weisman v. Mining Co. 4 Jones E(j. 11 2. But if a defondant rest himself upon a fact, as an objection to further discov- ery, it ought to be such a fact, as, if true, would at once be a clear, decided, and in- evitable bar to the plaintiff's demand. Method. Epis. Church v. Jaques, 1 John. Ch. 65 ; post, 732, 733, and notes. If it clearly appears that the case is not of Equity cognizance, the answer, required only for the purposes of the particular suit, would avail nothing, and is not necessary. Morton v. Grenada Academies, 8 Smedes & Marsh. 7 73. * Ante, p. 606 ; Lord Red. 200. * Honey wood r. Selwin, 3 Atk. 276 ; see Attorney-General v. Lucas, 2 H. 566 ; Earl of Lichfield v. Bond, 6 Beav. 88. * Per Sir Thomas Plumer, V. C, in Agar v. Regent's Canal Company, Coop. 215. * The defendant is not bound to aaswer any allegations in the plaintiff's bill, GENERAL NATURE OF ANSWERS. " 731 The application of this rule has been before discussed in treat- ing of demurrers to discovery, on the ground of want of mate- riality.^ It is in application of the same principle that the Court holds that wliere 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 ad- mits assets in his hands sufficient to answer the plaintifl^"'s demands, he need not set out an account of the estate,^ because the admis- sion by the defendant, that he has assets in his hands to answer the plain tiff"s demands, is sufficient to give the plaintiff" all the decree he can require, so that any discovery as to the particular assets would be useless and irrelevant.^ And it may be observed, that the Court will not, in general, allow tlie circumstance of a plaintiff" having a claim upon a defend- ant, to be used for the purpose of enabling such plaintiff to inves- tigate all the private affairs of such defendant : ^ thus a vendor in a bill for a specific performance cannot interrogate the vendee as to his property ; ^ even though the bill should charge that tlie de- fendant was insolvent.^ In order to entitle a plaintiff to an answer to such an inquiry, he must show some specific lien upon the de- fendant's property, and pray some rcHef rcsj)ccting it;" and even tlien the Court will not comj)el the defendant "to make such dis- covery where the interest which the plaintiff may have in it is very which are not material to be answered. Utica Ins. Co. v. Lynch, .'? Paige, 210 ; Butler v. Cotting, 1 Root, 310; Davis i'. Mapes, 2 Paige, 105; llagtliurpe r. Hook, 1 Gill & John. 270; Mechanics' Bank v. Levy, 3 Paige, 65(j ; llardcmaa V. Harris, 7 How. U. S. 726. But see Hogencamp v. Ackerman, 2 Stockt. (N. J.) 267; AVoottcn v. Burch, 2 Md. Ch. Decis. 190. A defendant cannot be called -upon to answer a mere arithmetical proi)osition. Mclntyre v. Trustees of Union College, 6 Paige, 239. As to this point of materiality and the tests of it, see Story Eij. PI. § 853, 853 a, 853 b, 853 c ; Kuypers v. Reformed Dutch Church, G Paige, 670. * Ante, p. 463 ; and see Coflrington v. Codrington, 3 Sim. 519. ' Agar V. Regent's Canal Company, Coop. 215. * Pullen V. Smith, 5 Ves. 21. To a bill for discovery of assets and relief, an answer controverting the claim, without answering as to the assets, is iusuflicient. Carneal v. Wilson, 3 Litt. 80. * See Mayer v. Galluchat, 6 Rich. Eq. (S. C.) 1. * Francis v. Wigzell, 1 Mad. 258. * See Small v. Attwood, as reported in Wigram on Discovery, 74. ' Francis v. Wigzell, uhi supra. 732 OF ANSWERS. remote in its bearings upon the real point in issue, and would be an oppressive inquisition.^ The above cases, and those before cited, point out in what in- stances the defendant may decline to make a particular discovery, when it is irrelevant to the general scope and object of the bill ; a discovery may, however, be material to the plaintiff's general case, if made by some of the defendants, which would be wholly irrel- evant if made by another ; in such cases, also, the defendant, from whom the discovery would be immaterial, is not obliged to make it. A defendant is, in fact, only obliged to answer to so much of the plaintiff's bill as is necessary to enable the plaintiff to obtain a complete decree against him individually. The rule that a defendant is not bound to answer a plaintiff's bill, further than is necessary to enable the plaintiff to obtain a complete decree against himself, is an old one, and may be consid- ered still to apply; but now that the plaintiff calls only for such discovery as he considers material to his case, it will in general be the duty of the defendant to answer all the interrogatories which apply to him individually. There may be cases, however, in which the defendant may choose to withhold discovery or refuse to answer interrogatories, on the ground of immateriality ; and in such a case, if the plaintiff excepts to the answer, by the 74th Order of 1828, the Master was, in de- ciding on the sufficiency or insufficiency of any answer or examin- ation, to take into consideration the relevancy or materiality of the statement or question referred to. With respect to tlie construction of this Order it was observed, " the 74th Order directs the Master to consider the relevancy or materiality of the question or statement. The Master undoubtedly has always to read the bill, and to see what the scope of it is on the question of materiality; but the Order is not imperative that the Master shall weigh that question with the nicety which is necessary on questions of a right to property, but — having regard to it — if the statement is clearly immaterial, he is to take that circum- stance into account in determining on the sufficiency of the an- swer. - The Court has now to perform the duties with respect to excep- * Wigram on Disc. 72; Dos Santos v. Frietas, cited ib. ; Webster v. Threlfall, 2 S. & S. 190; sec also Janson v. Solarte, 2 Y. & C 132. Exch. R. * Tipping I'. Clarke, 2 Hare, 390 ; see also Wood v. Hitchings, 3 Beav. 504. GENERAL NATURE OF ANSWERS. 733 tions for insufficiency formerly entrusted to the Master,^ but it will be guided by the same rules in forming its judgment. With reference to the objection of immateriality, it must be un- derstood that the defendant is only required to answer as to matters which are loell pleaded^ that is, to the facts stated and charged. To matters of law, or inferences of law drawn from the facts, he need not answer.^ Thus, a defendant must answer, whether a will, executed before the recent statute,^ was published by the testator in the presence of three witnesses ; but he need not answer to an interrogatory requiring him to say, whether the publication was such as by law is required to pass freeholds by devise ; sometimes a defendant, instead of answering such interrogatories, submits the point to the judgment of the Court ; but it is not necessary to do so. It has always been an established maxim of the Court that a defendant who submits to answer must answer fully.* This rule was a[)plicable to all cases where the defence intended to be set up by the defendant extended to the entire subject of the suit ; such, for instance, as that the plaintiff had no right to equi- table relief, — or lie ha 13 & 14 Vict. c. 85, § 27. * Story KSih Or- der of August, 1841, which provides, " that a defendant shall be at liberty by answer to decline answering any interrogatory, or part of an interrogatory, from answering which he might have protected himself by demurrer ; and that he shall be at liberty so to decline, notwithstanding he shall answer other parts of the bill from which he might have protected himself by demurrer." ^ Some doubt was at one time entertained, whether this Order did not enable a defendant to avail himself of any defect in practice, whether in substance, or in form, as an objection to discovery .^ This practice has, however, not been adopted, and it now seems clear tliat a defendant can only under this Order decline that par- ticular discovery to whicli he could have specially demurred.^ The Order does not extend so as to enable a defendant to raise fact charged in the bill, the admission or proof of which is material to the relief soupht, or is necessary to substantiate his proceedinsrs and make them regular. Davis P. Mapos. 2 Paige, 1<"5. It may l>e taken as a general rule that if the charge in the bill embraces several partifulars, the answer should be in the dis- jun See Story Eq. PI. § 606, 609, 846, 846 a, 847, and notes. If the defendant submits to answer at all, he must answer fully and particularly; not merely limit- ing his responses to the interrogations of the bill. Hagthorp v. Hook, 1 Gill & John. 270 ; Methodist Epis. Church r. Jaqucs, 1 John. Ch. 65 ; Salmon r. Clag- gett, 3 Bland, 125; Neal v. Ilagthorpe, 3 Bland, 551; Cuyler v. Bogert, 3 Paige, 186. But see ante, 735, notes, and 39th and 44th Etpiity Rules of the United States Courts, there referred to, by which the general doctrine has been materially altered. See also note to Story E*]. PI. § 84 7, The proposition above stated is also subject to the exceptions named in the text and notes, ante, 735. See a full discussion of this subject in Wigram on Discov. (Am. ed.) pi. 148, 149, &c. pp. 86, 87 et seq. ; Phillips v. Prevost, 4 John. Ch. 205 ; Whitney v. Belden, 1 Edw. 386 ; Ogden r. Ogden, 1 Bland, 288 ; Kuypers v. Ref. Dutch Church, 6 Paige, 570; Bank of Utica r. Messcreau. 7 Paige, 517; Cookson v. Ellison, 2 Bro. C. C. (Perkins's ed.) 252, and notes ; Jerrard v. Saunders, 2 Sum- ner's Vesey, 187, and notes ; see ante, 735, note ; Utica Ins. Co. v. Lynch, 3 Paige, 210 ; Warsfield v. Gambril, 1 Gill & John. 503. « 1 Ph. 349. ^ Adams v. Fisher, 3 M. & C. 526. See the observations on this case in Swin- borne v. Nelson, 16 Beav. 416. * Tradesmen's Bank v. Hyatt, 2 Edwards, 195; Bailey v. Wilson, 1 Dev. & Bat. Eq. 187 ; Norton v. AVarner, 3 Edw. Ch. 106. See to this point, Story Eq. PI. § 854 et seq.; Miles i-. Miles, 7 Foster (N. IF), 447. ^ See Hall v. Wood, 1 Paige, 404 ; Sloan v. Little, 3 Paige, 103 ; Pierson v. Meaux, 3 A. K. Marsh. 6 ; Woods r. Morrell, 1 John. Ch. 103 ; Devereaux v. Cooper, 11 Vermont, 103 ; Miles v. Miles, 7 Foster (N. H.), 447 ; Pitts v. Hoop- er, 16 Geo. 442 ; Dinsmoor v. Hazelton, 2 Foster (N. H.), 535 ; Kittredge v. Claremont Bank, 3 Story C. C. 590. On a bill filed charging usury, an answer GENERAL NATURE OF ANSWERS. 737 brance or belief only, if it is stated to have happened within seven years before.^ It seems, however, that where a special cause is shown, so positive an answer may be dispensed with.^ And in Hall V. Bodley,^ it is said, that a defendant having sworn in his answer that he had received no more than a certain sum, to his remem- brance, it was allowed to be a good answer. As to facts which have not happened within his own knowledge, the defendant must, if so called upon, answer as to his information and belief, and not as to his information merely, without stating any belief either one way or the other,^ but it is not necessary that this precise form of •words should be used.^ that the defendant does not remember the terms on which the money was lent, will be considered evasive, and tantamount to an admission of usury. Scotts V. Hume, Litt. Sel. Ca. 379. So, where the bill directly charged upon the de- fendant that he had made and entered into a certain agreement, it was held that a simple denial by the defendant in his answer, " according to his recol- lection and belief," was insufficient, and ought to be treated as a mere evasion. Taylor v. Luther, 2 Sumner, 228. But where the facts are such that it is prob- able that the defendant cannot recollect them so as to answer more positively, a denial of the facts according to his knowledge, recollection, and belief, will be sufficient. Hall i'. Wood, 1 Taigc, 404. See also Utica Ins. Co. v. Lynch, 8 Paige, 210 ; Brooks v. Byam, 1 Story C. C. 296 ; Story Eq. Bl. § 854, and notes. * Prac. Reg. 13. See Story Ei]. PI. § 854. Whether the facts are charged in a bill as being the acts of the defendant, or witliin his own personal knowledge, he is bound to ailmit or deny the facts charged, cither positively or according to his belief, whether tliey occurred within seven years, or at a greater distance of time. Sloan v. Little, 3 Paige, 103 ; Hall v. Wood, 1 Paige, 404. » Prac. Keg. 13. * 1 Vern. 4 70 ; and see Nelson v. Ponsford, 4 Bcav. 41. * Coop. Eq. PI. 314. See Hall r. Wood, 1 Paige, 404 ; Sloan r. Little, 3 Paige, 103; Woods v. Morrell, 1 John. Ch. 103; Bolton v. Gardner, 3 Paige, 273; Brooks v. Byam, 1 Story C. C. 296 ; Kittredge t'. Claremont Bank, 1 Wood. & Minot, 214; King t;. Ray, 11 Paige, 235; Kittredge v. Claremont Bank, 3 Story C. C. 590. If the defendant answers, that lie has not any knowledge or information of a fact charged in the bill, he is not bound to declare his belief one way or the other. Morris v. Parker, 3 John. Ch. 297. If he denies all knowl- edge of a fact charged in the bill, but admits his belief as to the fact charged, it is not necessary for him to deny any information on the subject. Davis v. Mapes, 2 Paige, 105. But if he has any information other than such as is derived from the bill, he must answer as to such information, and as to his belief or disbelief of the facta charged. Utica Ins. Co. v. Lynch, 3 Paige, 210 ; Devereaux v. Cooper, 11 Vermont, 103. It is not sufficient to answer to certain specific facts * Amhurst v. King, 2 S. & S. 183 ; Utica Ins. Co. v. Lynch, 3 Paige, 210. 62* 738 OF ANSWERS. It may be observed here, that where defendants have in their power the means of acquiring the information necessary to enable tliem to give the discovery called for, they are bound to make use of such means, whatever pains or trouble it may cost them ; ^ therefore, where defendants filling the character of trustees, are called upon to set out an account, they cannot frame their answer so as merely to give a sufficient 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 sufficiently to make them parts of their answer, and affiard the plaintiff an opportunity of inspection, in order that they may be able to ascertain whether that is the best account the defendants can give.^ It appears, however, that for the purpose of abbreviating the answer they may refer to accounts previously in existence.^ The same rule which has been before stated with respect to corporations aggregate, viz., that it is their boundcn duty, before they put in their answer, to charged in the bill, " that they may be true, &c., but the defendant has no knowl- edge of, but is a stranger to the foregoing facts, and leaves the plaintiff to prove the same." Smith v. Lasher, 5 John. Ch. 24 7. Nor is it sufficient to say that " the defendant has not any knowledge of the foregoing facts, but from the state- ment thereof in the bill." lb. Nor is a denial bv a defendant " accordinj: to his recollection and belief" sufficient, where the fact is directly charged, cis within his knowledge. Taylor v. Luther, 2 Sumner, 228. But where the defendant states that he is "utterly and entirely ignorant" as to the fact to which he is interro- gated, it is sufficient. ^lorris v. Parker, 3 John. Ch. 21*7 ; Norton v. Warner, 3 Edw. Ch. 106. 1 See Taylor v. Rundcll, C. & Ph. 104 ; Earl of Glengall v. Frazer, 2 H. 99, and the observations thereon in M'lntosh v. Great Western Railway Company, 4 De G. & Sni. 502 - 544 ; Stuart v. Lord Bute, 12 Sim. 460; and see post, chapter On Pioduction of Documents. Swift v. Swift, 13 Georgia, 140. But a defend- ant ought not to be required to obtain information so £is to meet the plaintiff's wishes, and thereby become his agent to procure testimony. Morris v. Parker, 3 John. Ch. 301. In Kittredge v. Claremont Bank, 1 Wood. & Minot, 244, Wood- bury J., said, that the officers, answering for the bank sued, if they are not the same persons who were in office at the time of the transaction inquired about, ought to go not only to the records, books, and files, for information, but to the former officers, if living, and ascertain, as near as may be, the truth of the mat- ters about which they are interrogated. ^ White V. Williams, 8 Ves. 193 ; see Christian v. Taylor, 11 Sim. 401. The defendant must answer as to all facts within his knowledge, or which he can ascer- tain from an inspection of books and papers in his possession or under his control. Davis V. Mapes, 2 Paige, 105. See Kittredge v. Claremont Bank, 1 Wood. & Minot, 244, 247. " Arguendo Alsager r. Johnson, 4 Ves. 224 ; ante, pp. 135, 136. GENERAL NATURE OF ANSWERS. 789 cause every deed, paper and muniment in their possession or power, to be diligently examined, and to give in their answer all the information which results from such examination,^ ii^f^J? with propriety, be applied to all individuals who are required to answer a bill.2 If a defendant is called upon to set out a deed or other instru- ment, in the words and figures thereof, he should do so, or give some reason for not complying with the requisition ;^ he may, however, avoid this by admitting that he has the deed, c^'C, in his possession, and offering to give the plaintiff a copy of it.* It may here be observed, that it is a usual precaution, where a defendant sets out any deed or other instrument in his answer, whether in h(BC verba, or by way of recital, to crave leave to refer to it, as by so doing, the defendant makes it a part of his answer, and re- lieves himself from any charge in case it should be erroneously set out.^ If the defendant deny a fact, he must traverse it directly, and not by way of negative pregnant ; ^ thus, if a fact be laid to be > Attorney-General v. The Bailiffs, &c., of East Retfonl, 2 M. & K. 35. * Story Eq. PI. § 856, and note. A defendant to a suit for an account is often required to discover and set forth in his answer, details which it is Impossible for him to remember, and to ascertain which incjuiry and study are necessary. In such a ease, all that a defendant is bound to do is, it seems, to put the plaintifi' in the same position as himself; furnishing the plaintiff with every means of infor- mation possessed or obtainable by the defendant, and leaving the plaintiff to make ■what he can of the materials thus furnished to him. A defendant is not bound to digest accounts, or to set out in his answer voluminous accounts existing already in another shape, and which he offers to produce to the plaintiff. But a defendant is bound to state what he knows, to make inquiries of his agents and servants, to obtain documents to the possession of which he has a right, and to afford the plaintiff either the information sought, or all the means of obtaining information ■which the defendant himself possesses. A defendant, who has it in his power to obtain information, cannot escape from discovery simply by saying he does not know. 2 Lindley Partn. (Eng. ed.) 814, 815 ; White r. Barker, 5 De G. & Sm. 746 ; Seeley o. Boehm, 2 Madd. 176 ; Drake v. Syms, 8 W. R. 85 ; Attorney- General L\ Bees, 12 Beav. 50 ; Martineau v. Cox, 2 Y. & C. Ex. 638 ; Taylor v. Rundell, 1 Y. & C. 128 ; 1 Ph. 222. * Prac. Reg. 204. As to the cases in which it may be prudent to set out doc- uments in h(EC verba, see ante, pp. 368, 369. * 1 Ilarr. 185, ed. New!. * See New v. Bame, 3 Sandf. Ch. 191. ' High V. Batte, 10 Yerger, 385. A bill charged a sale on credit. The answer admitted it, " but not without taking a security therefor." As here was a nega- tive pregnant, and defendant had answered no further, the Court decided that 740 OF ANSWERS. done with divers circumstances, the defendant may not traverse it literally, but he must traverse the point of substance;^ as if a man be charged to have done a thing upon such a day, or in such a place, he must not deny that he did it modo et formd^ for that implies that in some sort he did it.^ So if he be charged with the receipt of 100/., he must traverse that he hath not received 100/,, nor any part thereof; and if he has received any part, he must set forth what part.^ The old rule has been, that a general denial must be accompa- nied by an answer to special circumstances;* and the principle of this rule still remains, though, as now the defendant has only to answer the particular interrogatories, the application of the rule will be much simpler than in former times. It is, however, the general practice, where a bill requires the defendant 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 an- nexed 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. It may also be resorted to by the de- fendant, for the pur{)0se of showing the nature of his own case, or of strengthening it, even though there is nothing in the bill he must state tlie security, and add all the particulars concerning it. Kobinson v. AV'oodgate, 3 Edw. Cli. 422. The defendant must not answer the charges merely literally, but he must confess or traverse the substance of each charge positively and with certainty. I'articular and precise charges must be answered particu- larly and positively, and not in a general manner, even though the general answer may amount to a full denial of the charge. Woods v. Morrell, 1 John. Ch. 103 ; Story Ecj. PI. § 852 ; King r. Kay, 11 Paige, 235; Walker v. Walker, 3 Kelly, 302. ' Woods V. Morrell, 1 John. Ch. 103; Morris v. Barker, 3 John. Ch. 297; Smith V. Lasher, 5 John. Ch. 247 ; Pettit v. Candler, 3 Wendell, 618; Story Eq. PI. § 852; Thompson r. Mills, 4 Ired. Ya\. 390. An answer to an interrogatory must be positive and direct, and not argumentative. New England Bank v. Lewis, 8 Pick. 113, 119 ; Manning v. Manning, 8 Alabama, 138. * Beames's Ord. 29, 179; Cowel's Interp.; see Bally v. Kenrick, 13 Pri. 291. * Beames's Ord. 29, 1 79. * Wharton r. Wharton, 1 S. & S. 235; Mountford r. Taylor, 6 Ves. 792; Hib- bert V. Durand, cited in Prout v. Underwood, 2 Cox, 135 ; Hepburn v. Durand, 1 Bro. C. C, S. C. ; Bally v. Kenrick, 13 Pri. 291 ; Story Eq. PI. § 852, note. But a general answer of denial to a general allegation in a bill, without specifying the facts upon which it is founded, is sufficient. Cowles c. Carter, 4 Ired. Eq. (N. C.) 105. GENERAL NATURE OF ANSWERS. 741 itself, or in the interrogatories, which may render a schedule neces- saiy.i A defendant must, however, be careful so to frame his schedule as not to be burdensome by its minuteness and consequent length to the plaintiflT. Thus, where the bill called upon a defendant to set forth an account of all and every the quantities of ore, metals and minerals, plications for the exten- sion of time, see 1 IlofV. Ch. IV. 22.s ; 1 Barb. Ch. Vr. 14G, 147. A defendant may, on motion, obtain further time to answer. Carroll v. Parsons, 1 IJland, 125. After a demurrer overruled, an onler for further time to answer merely, can be obtained only by a special application. Trim v. Barker, Turn. & Russ. 253. Af- ter a plea overruled, an order for further time to answer, obtained as of course, is irregular. Ferrand i'. IVlham, Turn. & Russ. 404. A notice of an application for time to answer, and an affidavit filed in support of it, according to the Irish practice, prevent all further proceedings by the plaintiff, until the notice is regu- larly disposed of by the Court. Ornisby r. PalnuT, 1 Ilogan, Utl. See Burrall V. Raineteaux, 2 Paige, 331 ; Hunt v. Wallis, 6 Paige, 371 ; Ilurd v. Haines, 9 I'aige, 6(>4. After an order, allowing further time to answer, it is irregular for the defendant to demur. Davenport v. Sniifen, 1 Barb. 223 ; Lakens v. Fielden, 11 Paige, 644 ; Bedell v. Bedell, 2 Barb. Ch. 99. » Taylor v. Fisher, 6 Sim. 5(56 ; Barritt r. Barritt, 3 Swanst. 395. See Daly V. Duggan, 1 Irish Etj. 315 ; Vassar r. Hill, 1 Hayes, 355. A defendant has the ■whole of the last day, specified in the order to answer, in which to serve his an- swer. Iloxie V. Scott, 1 Clarke, 457. And afler the time of answering has ex- pired, the defendant may serve an answer at any time before an order to take the bill as confessed is actually entered with the clerk. Iloxie v. Scott, 1 Clarke, 457. But the Court may, in its discretion, receive or reject an answer filed after the 752 OF ANSWERS. Applications of this kind were formerly made to tlie Masters, under the 3 & 4 Will. IV. c. 94. By the 15 & 16 Vict. c. 80, the Act for the abolition of the office of Master, 35th section, the sec- tions conferring upon the Master powers for these purposes were repealed ; and by the 26th section of the last-mentioned Act, appli- cations for him to plead, answer, or demur, are to be disposed of by the Master of the Rolls and Vice-Chancellor respectively, when sitting at chambers, or in open Court, should the Judge so think fit. We have seen also,^ that the power of the Court to grant fur- ther time for pleading, answering, or demurring to a bill, is ex- pressly reserved by the 15 & 16 Vict. c. 86. The application is always in the discretion of the Judge, and is never of course. The Master was expressly authorized to make such an order upon con- dition ; and by the 119th Order of May, 1845, " in all cases where any person or party, having obtained from the Court or from a Master any order upon condition, does not perform or comply with such condition, he is to be considered to have waived or aban- doned such order, so far as tlie same is beneficial to himself ; and any other party or person interested in the matter may, on breach of non-performance of the condition, take either such proceedings as the order may in sucii case warrant, or such proceedings as might have been taken if no such order had been made, unless the Court orders to the contrary." Before this Order, when a defend- ant obtained further time, or permission for any other thing upon a condition, if he neglected to perform the condition, he lost all benefit of the permission, but the Court could not compulsorily direct the performance of the condition.^ By the 15 & 16 Vict. c. 86, s. 13, " If the Court shall grant any further time to one defendant for pleading, answering, or demur- ring to the bill, the plaintiff's right to move for a decree under the provisions hereinafter contained shall in the mean time be sus- pended." When an answer was to be filed in town, or within twenty miles regular time for answering has passed, and the motion for leave to file it and the decision should appear in the record. Lindsey i'. Stevens, 5 Dana, 185. See Scales t'. Nichols, 3 llayw. 230 ; Fisher v. Fisher, 4 lien. & Munf. 484. * Ante, p. 471 ; Brown r. Lee, 11 Beav. 1(J2, 163, ISth Order, May, 1846; York and North Midland Kailway Company v. Hudson, 13 Beav. 69 ; Byng v. Clark, 13 Beav. 92. * Henley r. Stone, 4 Beav. 392 ; Judd v. Wartnaby, 2 l^L & K. 813. GEXERAL NATURE OF ANSWERS. 753 of London, the course formerly was to produce the defendant to one of the Masters of the Court, at the public office, where the Master swore him to his answer in the form before pointed out. The defendant, when sworn, signed his Christian and surname at the foot of the answer, at the right hand, in the presence of the Master.^ By the 7th Order of October, 1842, " pleas, answers, affidavits, or affirmations whereon to ground process of contempt, affidavits or affirmations required to be annexed to bills, and oaths or affir- mations as to the carriage of pleas, answers, examinations, or de- positions of witnesses, taken before commissioners in the country, may be sworn and affirmed or attested upon honor before any Clerks of Records and Writs, or before the Clerk of Enrolments in Chancery, as occasion may require, for the better dispatch of business." Till recently, answers taken in the country were sworn before commissioners; but now, by 15 & 16 Vict. c. 86, s. 21, "The practice of issuing commissions to take pleas, answers, and dis- claimers in causes pending in the Court, shall, with respect to pleas, answers, and disclaimers taken within the jurisdiction of the Court, be abolished ; and any such plea, answer, or disclaimer may be filed without any further or other formality than is re- quired in the swearing and filing of an affidavit." The persons before whom answers, pleas, disclaimers, and affidavits are sworn were formerly called Masters Extraordinary in Clianccry, but they are now styled Commissioners to administer Oaths in Chancery in England.- Moreover, with respect to the London district the Lord Chancellor is now empowered to appoint persons practising as so- licitors within ten miles from Lincoln's Lin Hall at their respec- tive places of business, to administer oaths in Chancery, and such persons are called " London Commissioners to administer Oaths in Chancery." ^ The Lord Chancellor is also empowered to ap- point persons to be called " Commissioners to administer Oaths in Chancery for the Channel Islands." * These commissioners have ' Bcames's Ord. 452. » 16 & 17 Vi.t. c. 78, §1. * 16 & 17 Vict. c. 78, § 2. They may administer oatlis anywhere within the limits of thtir jurisdiction, and not merely at their place of business. lie Record and Writ Clerks, 3 De Gex, Mac. & Gor. 723. * 16& 17 Vict. c. 78, § 3. 754 OF ANSWERS. the same powers and duties as the Masters Extraordinary in Chan- cery formerly had.^ It is to be observed that, previously to the answer being sworn, the jurat should be written at the top, on the left hand. 2 This jurat is in the following form: — " Sworn at the Record and Writ Clerks' Office, Chancery Lane, in the county of Middlesex.'" ^ If there are many defendants who are sworn together, the jurat is sworn by all the defendants, &c.'' If the defendants are sworn at different times, there must be separate jurats for each defendant, or each set of defendants swearing. If the answer is sworn at any other place, the jurat should so express it.^ Where an answer was put in upon attestation of honor, the course of proceeding, mutatis mutandis, is the same. In the case of Wilton v. Clifton,^ where the defendant was an illiterate person, unable to read or write, the form of the jurat was " Sworn by the defendant, Mary Clifton, at the dicclling-house of, SfC, situate, ^-c, this 24th day of December, 1842, the witness to the mark of the said defendant having been first sworn that he had truly, distinctly, and audibly read over the contents of this an- swer to the said defendant Mary Clifton, and that he saw her make her mark thereto before me^ D. Drew." Sir J. Wigrara, V. C, lield, that the jurat was not irregular, but observed, that the form oi jurat that appeared to be used on taking answers by commission was the better form. Tlie follow- ing seems to be tlie form used before commissioners: — '' This an- * In INI.'issac'busetts, "the defendant's answer may be sworn to before any jus- tice of the peaoe of the county where the defendant may be ; and in such case it shall be sealed up by the justice, and returned unopened into the clerk's office ; and the answer may be then opened by the clerk for the inspection of the plain- tiff." Rule 12, of the Rules for Practice in Chancery. In the U. States Courts, every defendant may swear to his answer before any justice or judpe of any Court of the U. States, or before any commissioner ajipointed by any Circuit Court to take testimony or depositions, or before any Master in Chancery appointed by any Circuit Court, or before any judge of any Court of a State or Territory. Equity Rule, 59. * See AVhelpley v. Van Epps, 9 Paige, 332. * 1\\Q jurat to a bill is not rendered defective by the want of the statement of the county where the bill was sworn to. Barnard v. Darling, 1 Barb. Ch. 218. * 16 & 17 Vict. c. 78, § 3. ^ Hind. 227 ; 1 Smith's Ch. Pr. 3d edit. 352. « 2 Hare, 535. GENERAL NATURE OF ANSWERS. 755 siver was taken, and the above-named defendant, Richard Roe, has duly sivorn to the truth thereof, upon the Holy Evangelists, at,SfC., this day of , {the same having- been first read over and explained to the said Richard Roe, who appeared perfectly to un- derstand the same, and made his mark thereto in our presence^''') In the case of a foreigner not sufficiently versed in the English language to answer in that tongue, an order of course may be ob- tained upon motion or petition, for an interpreter, and the answer being engrossed in the foreign language, a translation thereof must be made by the interpreter, upon parchment, and annexed. The foreigner must be sworn to his answer ; in order to which, the interpreter attending is previously sworn to interpret truly, and conveys to the foreigner the language of the oath ; at the same time he swears to the translation as true and just, to the best of his al»ility ; and the jurat is adapted thereto.'^ In the case, however, of The St. Katherine Dock Company v. Mantzgu,^ Sir J. L. Knight Bruce, V. C, held, that there was no rule which ren- dered it necessary that a foreigner, however ignorant he might be of the English language, was bound to put an answer on the file in his own language.* The same course of proceeding seems proper where the defend- ant is deaf and dumb.'' Where a defendant is blind, some other person must swear that he has truly, distinctly, and audibly read over the contents of the answer to the defendant. The tlefondant must also swear to the answer.*' It is to be observed, that it is an universal principle in all Courts, that jurats and affidavits, when contrary to practice, are open to objection in any stage of a cause ; this does not depend upon any objection which 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 ol)joctional)le with reference to the rule of the Court." No act, tlierefore, of a plaintilf can waive an irregularity in the jurat.^ ' Pilkington v. Ilimsworth, 1 Y. & C. G15, Exch. Rep. n. ' Hind. 228 ; Simmonds v. Du Barro, 3 Bro. C. C. 263. • 1 Coll. 94 ; where also the form oi iim jurat is stated. • Hayes v. Seguin, 1 Hogan, 274. * Koynolds v. Jones, Trin. Term. 1818. • See Attorney-General v. Malim, 1 Young, 376. ^ See Barnard t'. Darling, 1 Barb. Ch. 218. • Pilkington v. Himsworth, 1 Y. & Coll. G12, Exch. Rep. 756 OF ANSWERS. As we have seen, the practice of issuing commissions for the purpose of having answers sworn is now abolished in all cases when the answer or other document is to be sworn within the jurisdiction of the Court. Moreover, by the same Act, the 15 & 16 Vict. c. 86, s. 22, "All pleas, answers, disclaimers and attesta- tions of honor in causes or matters depending in the High Court of Chancery, may be sworn and taken in Scotland or Ireland, or in the Channel Islands, or in any colony, island, plantation or place under the dominion of her Majesty in foreign parts, before any judge, court, notary-public or person lawfully authorized to administer oaths ^ in such country, colony, island, plantation or place respectively, or before any of her Majesty's consuls or vice- consuls in any foreign parts out of her Majesty's dominions ; and the judges and other officers of the Court of Chancery shall take judicial notice of the seal or signature, as the case may be, of any such judge, court, notary-public, person, consul or vice-consul attached, appended or subscribed to any such pleas, answers, dis- claimers or attestations of honor to be used in the said Court.'"* The provisions of this Act are so general, and apply to so many cases, that it is not probable that connuissions to take answers or other documents will occur hereafter. Wlien, however, an answer or oiher document is to be sworn out of the jurisdiction of the Court, and no person authorized un- der the foregoing section can be found, a commission under the old practice will still be necessary ,3 and consequently the mode of proceeding must be shortly stated. The commissioners have gen- erally been the solicitor of the defendant and one of his clerks, when the answer was sworn iu the country. As no commission will now issue within the jurisdiction, tiie commissioner will now be some proper person, nt)t necessarily a professional man, in the country where the answer is to be sworn. 1 Baillie w. Jackson, 3 De Gex, Mac. & Gor. 38. » This section is retrospective ; Batenian i;. Cooke, 3 De Gex, Mac. & Gor. 39 ; and, by IG & 17 Vict. c. 78, § 6, it has been e.N.tendcd to the Isle of Man. * An answer by a defendant beyond sea, must be taken and sworn to before a commissioner, under a dedimus issued by the Court in which the case is pending, directing him to administer the oath in tlie most solemn forms observed by the laws and usages of the country where the answer is taken. Read v. Consequa, 4 Wash. C. C. 335. In New York, an answer in Equity, 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 the English Court of Chancery, had not the authority to administer such oath. Lahens v. Fielden, 1 Barb. Ch. 52. GENERAL NATURE OF ANSWERS. 757 Strictly speaking, the plaintiff is entitled to join in the commis- sion, to see the answer or other document sworn, and two days' notice in writing must therefore be given to the plaintiff's solicitor to let him have an opportunity of naming commissioners. If no names are given the defendant may sue out the commission to his own commissioners.^ Foreign commissions are only granted upon an order to be ob- tained on motion or petition.^ It is to be observed, that the return of the commission must be without dday ; the effect of which is, that if made out in term time, it holds to the first return of the ensuing term ; if in the va- cation, to the last return of the subsequent term ; however, by the practice, a decUmua need not be returned till the second return of Hilary and Trinity terms, because the vacations previous to those terms are so short.^ The proceedings, however, are adapted to the convenience of both parties ; ■* care, however, must be taken to have the commission, with the answer, returned before the time limited by the orders for filing the answer has expired. Where the defendant is entitled to the privilege of peerage, the words '■'■ upon his attestation of honor ^^ arc inserted, instead of the words " vpon his corporal oath.^' ^ When the commission is to take the answer of a corporation ag- gregate, the commissioners are empowered to take it under the common seal of tlie corporation. Where the defendant is a Quaker or l^foravian, tlie commis- sion, after the recital of the subpwna^h in the following words: — " But forasmuch as the said Richard Roe is one of the dissent- ers called Quakers (^or one of the persuasion of the people called Quakers, or of the united brethren called Moravians, as the case may 6e),^ as is allc^^ed; know ye, therefore, that ive hare given unto you, any three or two of you, full power and authority to take the answer of the said Richard Roe, upon his solemn dec- laration and affirmation, to be made before you, any three or two of you, according- to the form of the statute in that case made and provided,^^ SfcJ ^ Baron de Fuchfere v. Dawes, 5 Beav. 144. * 9th Order, 1833. » Hind. 230; Prac. Keg. 118. ♦ Ibid. Hind. 220. » Hind, 239, n. • See 3 & 4 Will. IV. c. 49, § 1. ^ Hind. 238, n. ; Veal's Record and Writ Practice, p. 28. VOL. I. 64 758 OF ANSWERS. Where a defendant is a Jew, the words "Holy Evangelists" may be left out of the form of the oath mentioned in the com- mission. And where a defendant was a Gentoo, and the answer was to be taken in Calcutta, the commission was directed to be in a 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 that they had done so, the answer was ordered to be taken off the file.^ The commission is prepared by the defendant's solicitor, and sealed by the Clerk of Records and Writs, upon instructions to that effect being left with him.^ If the defendant is a resident in a foreign country, it may be sent to some professional person there, to take care that it be properly executed. And though the foreign country be at war with this country, it must be there executed. In this respect, a commission to take an answer differs from a commission to examine witnesses, which it seems may be executed at the nearest neutral port.* The manner of executing a commission to take an answer, &c., is as follows : — Where the plaintiff has named commissioners, the defendant's solicitor in the country must cause a notice in writing, of the time and place of executing the commission, to be signed by two of the defendant's commissioners, and served upon the plain- tiff's commissioner, six days before the day appointed for executing the commission. The notice may be in the following form : — " We, lokose names are hereunto subscribed, having received a ^ Ramkissenseat v. Barker, 1 Atk. 19. 2 Parke v. Christy, IJ. & L. 533. ^ The prceclpe left on sealing the writ may be in the following form : — A. ) Seal commission to take answer of B. ats. of A. directed to . V. Y Six days' notice to (plaintiff's commissioner, if any.) B. 1 Date. Name and address of defendant's solicitor. * V. Romney, Amb. 62. GENERAL NATUKE OF ANSWERS. 759 commission, issuing out of the High Court of Chancery, to us and others directed, to take the answer of C. D., defendant to the bill of complaint of A. B., complainant, in a cause depending in the said Court. We do hereby give you notice, that we intend to exe- cute the said commission on , the day of instant, betiveen the hours of and in the , at the house of W. G., situate in , in the county of , at which time and place you may be present, if you please, to see the same taJcen. Given under our hands, the day of , ^^To3Ir. , ) "^•^;,i ^^ Plaintiff ''s Commissioner.^' ) "•^- H."^ If this notice be given on a Sunday, the commission may be exe- cuted on the Saturday following.^ If the party who 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, Hind. 236. » Prac. Reg. 115. • Anon. Mos. 238. • Ibid. 64* 762 OF ANSWERS. party in fault to give security to pay them before he has a second commission ; and if he has the carriage of the second commission, to pay the costs upon that also, if he again fails.^ 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, &c.^ Where, how- ever, it appeared that the omission to make a return arose from the circumstance of one of the plaintiff'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 different 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 re- turn, that the commission and answer may be quashed, or that the answer may be taken off the file, &c. And so where any irregular- ity has taken place in taking or filing an answer, &c., sworn in town, a motion may be made to take it off the file. We have before seen the manner in which the plaintiff is en- abled to obtain an answer from an infant defendant who makes default either in appearance or answer ; * but it frequently hap- pens that the friends of an infant are desirous of defending the suit on his behalf, in which case the infant must, according to the ordinary practice, if in town, appear in Court, and have a guardian assigned to him. When the infant was resident in the country, that is, more than twenty miles from London, he might have a commission to assign him a guardian, and the practice till recently has been that the same commission should assign the guardian and take the answer. Now, however, as we have seen, commis- sions to take answers are abolished ; and it would appear that, though commissions to appoint guardians ad litem are not included in the same section of the statute, yet they will be now of com- paratively rare occurrence.^ If a commission issue to assign a guardian, after the execution of that commission, it will still be necessary for the guardian to swear to the answer in the same manner as other persons. Before this alteration in the practice, 1 Prac. Reg. 116. ^ Ibid. * Ibid. * Ante, pp. 467, 481. * Egremont v. Egremont, 2 De Gex, Mac. & Gor. 730. GENERAL NATURE OF ANSWERS. 763 the Court was in the habit, on special applications, to make orders upon motion for the appointment of guardians ad litem to infants, on being satisfied by affidavit that the proposed person was proper to be appointed guardian, and had no interest adverse to the in- fant ; and this practice has been permitted as well where the infant was out of the jurisdiction of the Court, as when he was within it.^ Lord Langdale, M. R,, however, declared, that in consequence of a recent case having come before him, in which a guardian was assigned to a defendant who was represented to be an infant, but turned out to have been thirty years of age, he must on applications of this kind require an affidavit, that the party was an infant at the time of making the application. ^ The guardian is usually the nearest relation of the infant, not claiming an interest adverse to that of the infant in the subject- matter of the suit ; and in cases where the Court appoints a guar- dian, it is usual for the solicitor of the suitors' fund to be nomi- nated.^ When a guardian for an infant is to be appointed in Court, (which he may be, on any day after appearance, either in term or vacation, before any of the Judges of the Court,) the solicitor must attend the Court with the infant and proposed guardian, and request such assignment to be made ; and he is to certify to the Court that the proposed guardian has no interest adverse to the interest of the infant, and is a proper person to be assigned guar- dian ; ^ upon the production of the certificate under this order, if the person offering himself as guardian appears upon examination to be a proper person, the appointment is made of course. The registrar, who attends on the day on which the appointment is made, will sign the certificate, which is then taken to the clerk at * Smith V. Palmer, 3 Beav. 10 ; Shuttleworth v. Shuttleworth, 2 H. 147 ; Drant V. Vaux, 2 Y. & C. 524 ; Morver v. Orr, 6 Hare, 417 ; Boglelin v. Hooker, 10 Beav. 417. It appears, however, by the note to Crabbe v. Monbery, 5 De Gex & Sm. 347, that it is more expensive to appoint a guardian by motion than by commission, and In that case the Court refused the order on that ground. * Lingren v. Lingren, 7 Beav. 66. See Foster v. Cautley, 10 Hare, Appx. xxiv. ; Carwardine v. Weshlade, 16 Jur. 461. ^ Thomas v. Thomas, 7 Beav. 47 ; Bentley v. Robinson, 9 Hare, Appx. Ixxvi. * 27th Order of October, 1842. And it may be observed, that the personal attendance of the infant has been dispensed with, when the Court has been satis- fied that there would be danger to his health, in bringing him into Court. Hill v. Smith, 1 Mad. 290 ; Marlborough v. Marlborough, Dick. 74 ; Crabbe v. Monbery, 6 De G. & Sm. 347. 764 OF ANSWERS. the proper seat at the Registrar's Office, who will, upon application, draw up and pass the order, which is to be entered and served upon the adverse solicitor like other orders of course. As soon as the order is passed and entered, the guardian may attend at the Record and Writ Clerks' Office, and swear to the answer. The jurat is in the form, — " Sworn, &c., by H. B., the guardian of the infant defendant CD., assigned pursuant to an order dated the day of ." This practice of appointing a guardian to an infant in Court has prevailed till very recently, and been compulsory except in special cases. Although, however, no general order has issued dispensing with the necessity of producing the infant in Court, or in other respects altering the practice, the Courts have most materially re- laxed the strictness of this rule, and permitted the friends of an infant, after an appearance has been entered in his behalf, to ob- tain an order of course, upon petition at the Rolls, or upon mo- tion for appointment of a guardian, upon an affidavit of the solici- tor who appears for the infant, or the joint affidavit of a solicitor and a member of the family, that the petitioner is an infant, and that the proposed guardian is a fit and proper person and has no interest adverse to the infant. This order of course may be obtained where an infant is in Lon- don, in the country, or out of the jurisdiction, so that there will not now be any necessity for a commission to issue for the appoint- ment of a guardian, and consequently the recent practice concern- ing commissions for that purpose need not be stated. This order cannot be obtained after decree. The same rule prevails with respect to infants not completely defendants ; for the 6th Order of June, 1854, directs that " Guar- dians ad litem appointed for infants or persons of unsound mind, not found so by inquisition, who shall be served with notice of any decree or order, are to be appointed in like manner as guardians ad litem, to answer and defend, are now appointed in suits or bills filed." ^ And by the 7th Order, " At any time during the pro- ^ In the United States Courts, guardians ad litem to defend a suit may be ap- pointed by the Court, or by any Judge thereof, for infants or other persons, who are under guardianship, or otherwise incapable to sue for themselves ; all infants and other persons so incapable, may sue by their guardians, if any, or by their prochein atny, subject, however, to such orders as the Court may direct for the protection of infants and other persons. Equity Rule, 87. GENERAL NATURE OF ANSWERS. 765 ceedings at any Judge's chambers, under any decree or order, the Judge may, if he shall think fit, require a guardian ad litem to be appointed for any infant or person of unsound mind, not found so by inquisition, who has been served with notice of such decree or order." There does not appear to be any mode of appointing a guardian to an infant who is a respondent to a petition, but it may be doubted whether the interests of infants would be better protected by a practice that might easily become a mere formality. If the defence of the infant is by answer or plea requiring to be substantiated upon oath, the plea or answer must be put in upon the oath of the guardian,^ unless an order has been obtained to take it without oath, which is frequently done by consent, upon motion or petition.^ Where the plea or answer is to be taken without oath, the order for that purpose must be drawn up, passed and entered, (for with- out such order the plea or answer cannot be filed,) the record is then inscribed, " Without oath, by order, dated the day of ." ^ Where the guardian of an infant defendant is also a co-defend- ant, and one answer is put in for both, the guaklian need only sign the answer once."^ The other formalities are the same, mutatis mutandis, with those observed in putting in the answer or plea of a party under no in- capacity.^ If the appointment of guardian has been made by commission, and the plea or answer is put in in London, the guardian must attend at the public office, with the answer and certificate of his appointment, and swear to the contents of the plea or answer, and the following jurat is then inscribed in the usual manner : — 1 And it Is termed his answer, and not that of the infant ; Rogers v. Cruger, 7 John. 581 ; and the infant is not bound by it, if he dissents within a proper time. James v. James, 4 Paige, 115; Prutzman v. Pittsell, 3 Harr. & John. 77 ; Mills v. Dennis, 3 John. Ch. 367 ; ante, 165, note, and cases cited; Winston v. Campbell, 4 Hen. & Munf 777 ; Mason v. Debow, 2 Hayw. 178. Such answer cannot be read against the infant. Stephenson v. Stephenson, 6 Paige, 353. Nor is it evidence in his favor, though it be responsive to the bill and sworn to by the guardian ad litem. Bulkley v. Van Wyck, 5 Paige, 536 ; Stephenson v. Ste- phenson, 6 Paige, 353. 2 Hind, 241. ' Ibid. * Anon. 2 V. & B. 553. * Hind. 242. 766 OF ANSWERS. '■'■ Sivorn this day of , by A. B., guardian of the said C. D., the defendant, assigned pursuant to an order dated the day of , at , before nie.^' "Where an infant defendant is resident abroad, and the proceed- ing is for his benefit, a commission ^ may be issued to assign a guardian, and to take his answer at the place of his residence. As the answer may, under the present practice, be, in almost all cases, taken abroad, without a commission, it will be most convenient to have a guardian assigned by the Court, to an infant abroad, when such an order can be obtained. We have before seen,^ that a person, who has been found a lu- natic, answers by his committee ; in such case it does not seem necessary that there should be any order appointing a guardian, unless there be a conflict of interest between the committee and the lunatic, in which case a guardian may be appointed.^ We have also seen how, when a person of weak or unsound mind,* not so found by inquisition, makes default in appearance or answer, the plaintiff may have a guardian assigned to him for such purposes, and we have also seen that the recent orders concerning the answers of infants, apply in general to persons of unsound mind, not found so by inquisition.^ It now remains to consider the manner in which where a friend of the person of unsound mind is willing to act on his behalf as guardian, an order for his appointment may be obtained. In this case an application should be made on his behalf, by petition of ^ The return to the commission may be in the following form : — " We, whose names are hereunto subscribed, in pursuance of the commission hereunto annexed, to us and others directed, did on the day of , cause A. B., the infant in the said commission named, to come before us at , &c., &c. ; and we then and there assigned and appointed C. D. to be his guardian, to answer and defend this suit on his behalf; and the answer of the said A. B., the infant, by his guardian, was taken, and the said C. D., as such guardian, was duly sworn to the truth thereof upon the Holy Evangelists, at the time and place aforesaid, by virtue of the said commission. T > " Before us, " >■ Commissioners." S. ) 2 Ante, p. 148. * Lady Hartland v. Atcherley, 7 Beav. 53; Worth v. M'Kenzie, 3 Mc. & Gor. 363 ; Warde v. Warde, 3 Mc. & Gor. 365. * Superannuated persons, on proof of imbecility, may appear and answer by guardian. Matter of Barber, 2 John. Ch. 235. See Murkle v. Murkle, 4 John. Ch. 168. * Ante, pp. 467, 764. 4 GENERAL NATURE OF ANSWERS. 767 course, supported by an affidavit, stating the particular circum- stances of tlie party, and praying the appointment of a guardian.^ There appears to be no doubt that, in cases of tliis nature, a commission to appoint a guardian may be issued, whetlier it be a town or a country cause, and that such a commission may be exe- cuted anywhere, but probably the Court will now appoint itself the guardian. The order is generally made on the affidavit of a medical man. With respect to married women, we have before seen,^ that where a husband and wife 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.^ When an answer is filed pursuant to such an order, the jurat should state that the answer is sworn in pursuance of an order,' bearing date, Burr v. Burton, 18 Ark. 215. Separate exceptions to the same answer, one for scandal and the other for im- pertinence, will not be allowed, as nothing in the pleading can be considered as scandalous, which is not also impertinent. M'Intyre v. Trustees of Union College, 6 Paige, 240. An exception for impertinence will be overruled, if the expunging of the matter excepted to will leave the residue of the clause, which is not covered by the exception, either false or wholly unintelligible. M'Intyre v. Trustees of Union College, 6 Paige, 240. See Balcom v. New York Life Ins. & Trust Co. 11 Paige, 454 ; Norton v. Woods, 5 Paige, 2G0 ; Franklin v. Keeler, 4 Paige, 382 ; Tucker v. Cheshire R. R. Co. 1 Foster (N. H.), 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 error on one side is irremediable, on the othei', not. See Davis V. Cripps, 2 Youuge & Coll. (N. R.) 443 ; Story Eq. PI. § 267 ; Tucker v. Cheshire R. R. Co. 1 Foster (N. H.), 38 ; Woods v. Morrell, 1 John. Ch. 106. Exceptions for scandal or impertinence must describe the particular passages which are alleged to be scandalous or impertinent, Whitmarsh v. Campbell, 1 Paige, 645 ; Franklin v. Keeler, 4 Paige, 382 ; ante, 356, 357 and note. An exception for impertinence must be supported in toto, or it will fail altogether. Tench v. Cheese, 1 Beav. 571 ; Story Eq. PI. § 266. See Balcom v. New York Life Ins. & Trust Co. 1 1 Paige, 454. Kthe matter of an answer is relevant, that is, if it can have any influence what- ever in the decision of the suit in reference to any point to be considered in it, it is not impertinent. Tucker v. Cheshire R. R. Co. 1 Foster (N. H.), 38, 39 ; Van Rensselaer v. Bruce, 4 Paige, 177 ; Hawley v. Wolverton, 5 Paige, 522. If a plaintiff wishes to refer an answer for insuflficiency as well as for imperti- nence, he must procure the reference for impertinence first; for it has been de- VOL. I. 65 770 OF ANSWERS. If a plaintiff conceives the answer to be insufficient, he may take exceptions to it/ stating such parts of the bill as he conceives are not answered, and praying that the defendant may, in such respect, put in a full answer to the bill.^ If, however, the answer is one which accompanies a plea, or a demurrer, to part 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, how- ever, 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 were put in, and the plain- tiff, mistaking the practice, excepted to the answer before he set down the demurrer for argument, he was permitted, upon pay- ment of costs, to withdraw his exceptions, without prejudice to his filing them again after the argument of the demurrer.^ cided, that a reference for impertinence can never be contemporaneous with exceptions for insufficiency. Raphael v. Birdwood, 1 Swanst. 229 ; Story Eq. PI. § 876; Livingston v. Livingston, 4 Paige, 111. But by the practice, under the former New York Chancery System, exceptions for sc^idal or impertinence, and exceptions for insufficiency, were to be taken at the same time and in the same manner. Livingston v. Livingston, 4 Paige, 111 ; Woods v. Morrell, 1 John. Ch. 103. After a reference for insufficiency, or any other step taken in the cause, an answer cannot be referred for impertinence. Pellew v. , 6 Ves. 458 org. ; Beavan v. Waterhouse, 2 Beav. 58 ; but it may be for scandal. Story Eq. PI. § 876. ^ If the answer is evasive, it must be excepted to ; all defects in the answer must be supplied by taking exceptions. Blaisdell v. Stephens, 16 Vermont, 179. The answer of a defendant is to be taken as the testimony of any other witness ; if not explicit, the defendant must be pressed by exceptions until he is so. Blais- dell V, Stephens, ubi supra. In Massachusetts, when an oath is waived, and in New Hampshire, when an oath is not required, to an answer, no exception can be taken to it for insufficiency. Kule 5 of Chancery Practice in Massachusetts ; Rule 9 in New Hampshire. " * 1 Swanst. 128. An exception to an answer for insufficiency should state the charges in the bill, the interrogatory applicable thereto, to which the answer is responsive, and the terms of the answer, verbatim, so that the Court may see, whether it is sufficient or not. Brooks v. Byam, 1 Story C. C. 296. Exceptions to answers for insufficiency can only be sustained where some material allegation, charn-e, or Interrogatory in the bill is not fully answered. Where the matter of the bill is fully answered, and the defendant sets up new matter which is irrele- vant and forms no sufficient grounds of defence, the plaintiff may except to the answer for impertinence, but he cannot except to it for insufficiency. Stafford v. Brown, 4 Paige, 88. 3 Ante, pp. 628, 714. * Ibid. 6 Boyd V. Mills, 13 Ves. 85 ; Story Eq. PI. § 866. OF EXCEPTIONS TO ANSWERS. 771 If a plea or demurrer to the whole bill is overruled, the defend- ant must answer without the plaintiff's being driven to except; but, where a partial plea or demurrer is overruled, the plaintiff must except, as, since there is already an answer on the file, the defendant is not bound to answer further till exceptions have been taken.^ A plaintiff may also, where a partial demurrer is allowed, except to the answer to that part of the bill which is not covered by the demurrer. He must not, however, except to that part which is covered by the demurrer. In the case also of a plea, if the plea is accompanied by an an- swer as to part of the bill, the plaintiff may, upon the allowance of the plea, except to the answer, as he must if a partial plea is over- ruled. And it is to be observed, that the rule, that a plaintiff must except to the answer as insufficient, applies even where the plea or demurrer is accompanied by an answer as to a single fact, such as mere denial of combination.^ Where a plea is ordered to stand for an answer, with liberty to except, the plaintiff may of course file exceptions to the answer, or to that part of it to which he is, by the order, permitted to except. Where the plea is ordered to stand for an answer without liberty to except, expressly given, by the order, the plaintiff of course cannot except. The answer of the Attorney-General cannot, as we have seen, be excepted to for insufficiency .^ The rule is the same with regard to the answers of infants.* And in the case of Micklethwaite v. Atkinson,^ Sir J. L. Knight Bruce came to the conclusion, that a plaintiff cannot except for insufficiency to the answer put in by the guardian of a defendant of unsound mind, agauist whom a commis- sion of lunacy has not issued. Exceptions to answers were till recently always made the sub- ject of a reference to a Master, but now, by Sir G. Turner's Act,^ * Ante, p. 628; see Kuypers v. Ref. Dutch Church, 6 Paige, 570, 571. 2 Story Eq. PL § 866. » Exceptions will not lie for this cause to the answers of corporations. Wallace V. Wallace, Halst. Dig. 173. Nor to an answer to which the oath of the defend- ant is waived; because such answers are not evidence. 1 Barb. Ch. Pr. 177; Bartlett v. Gale, 4 Paige, 504 ; McCormick v. Chamberlin, 11 Paige, 543 ; Rule 5, of Rule for Chancery Practice in Mass. * Copeland v. Wheeler, 4 Bro. C. C. 256 ; Leggett v. Sellon, 3 Paige, 84 ; Bulkley v. Van Wyck, 5 Paige, 536. . ' 1 Coll. 173. « 13 & 14 Vict. c. 55, § 27. 772 OF ANSWERS. " All exceptions for scandal and insufficiency which, according to the existing practice of the Court, are referred to the Masters of the said Court, shall not any longer be so referred, but shall be heard and determined by the said Court in the first instance." ^ With respect to the time within which exceptions for insuffi- ciency must be filed, by the 8th of the Orders of November, 1850, it is provided that " After the filing of a defendant's answer the plaintiff has six weeks within which he may file exceptions thereto for insufficiency.^ If he does not file exceptions within six weeks, ^ Exceptions to a defendant's answer in South Carolina may be heard and de- termined by the Court without the intervention of a Master. Satterwhite v. Da- venport, 10 Rich. Eq. (S. C.) 305. In New Hampshire, exceptions to an answer may be allowed by a justice, a copy thereof and a notice of the time and place at which the same will be heard before such justice, being seasonably given to the defendant's solicitor. Kule 20 of Chancery Practice. Exceptions to an answer for insufficiency must be in writing. Beames's Ord. 78, 181 ; Woods v. Morrell, 1 John. Ch. 103. On exceptions for insufficiency, the particular points or matters in the biU which remain unanswered, or which are imperfectly answered, should be stated in the exceptions. Stafford v. Brown, 4 Paige, 88 ; Mitford Eq. PI. by Jeremy, 815 ; Cooper Eq. PI. 319 ; Lube Eq. PI. 87. See Dexter v. Arnold, 2 Sumner, 108. Material and necessary matter must be explicitly met in an answer ; but exceptions, founded on verbal criticisms, slight defects, and omissions of immate- rial matter, will be invariably disallowed and treated as vexatious. Baggott v, Henry, 1 Edw. Ch. 7. Exceptions for insufficiency may be allowed in part and overruled in part ; per Lord Hardwicke in E. I. Co. v. Campbell, 1 Ves. 247 ; but it is otherwise in re- gard to exceptions for impertinence. Wagstaff v. Bryan, 1 R. & M. 30 ; Tench V. Cheese, 1 Beavan, 571 ; Van Eensselear v. Brice, 4 Paige, 174; Tucker v. The Cheshire R. R. Co. 1 Foster (N. H.), 37 ; Mclntyre v. Union College, 6 Pai'Te, 240. But exceptions for insufficiency, as well as those for impertinence, must have the signature of counsel, though there is no positive order requiring it. Yates V. Hardy, Jac. 223 ; Story Eq. PL § 864 ; Mitford Eq. PI. by Jeremy, 313. ^ By the 61st Equity Rule of the United States Courts, it is provided, that " after an answer is filed on any rule day, the plaintiff shall be allowed until the next succeeding rule day to file in the clerk's office exceptions thereto for insufficiency, and no longer, unless a longer time shall be allowed for the purpose, upon cause shown, to the Court or a Judge thereof; and if no excep- tion shall be filed thereto within that period, the answer shall be deemed and taken to be sufficient." See the 15th of the Rules for the Regulation of Practice in Chancery in Massachusetts, by which it is provided, that " the plaintiff shall put in a general replication, or file exceptions, or set down the cause for hearing on the bill and answer, within two calendar months afi;er the answer shall have been filed, and if he fail to do so, a decree for the dismissal of the bill, with costs, may be entered." OF EXCEPTIONS TO ANSWERS. 773 such answer, on the expiration of the six weeks, is to be deemed sufficient.^ Formerly the plaintiff used to obtain, as of course, an order to deliver exceptions nunc pro tunc. By the 6th of these Orders, " No order is to be made for leave to file exceptions nuc pro tunc.^^ By the 4th of the same Orders, " The times of vacation are not to be reckoned in the computation of the time allowed for filing or setting down exceptions for scandal, impertinence, or insufficiency, in cases where the time is not limited by notice given pursuant to the 13th of these Orders." A plaintiff must take care to deliver his exception before he gives notice of motion for decree ^ or files his replication, for by replying he admits the answer to be suffi- cient. In some cases, however, the Court will permit a replication to be withdrawn and exceptions to be taken. With respect to the time within which the exceptions must be set down for hearing. The 11th Order provides, that " The plain- tiff, having filed exceptions for insufficiency to a defendant's an- swer, is not to set them down for hearing before the expiration of eight days from the filing of such exceptions ; unless in a case of election he is required by notice in writing from such defendant to set them down in four days, pursuant to the 13th of these Orders, or in a case where the common injunction may be obtained, or re- tained on the allowance of such exceptions." ^ By the loth Order, " A defendant whose answer is excepted to, alleging that the plaintiff is prosecuting him in this Court and also at Law for the same matter, may by notice in writing require the plaintiff to set down the exceptions within four days from the ser- vice of the notice. And if the plaintiff does not set down such ex- ceptions within such four days, such defendant is entitled as of course, on motion or petition, to obtain the usual order for the plain- tiff to make his election in which Court he will proceed." By the 14th Order, " The plaintiff, having filed exceptions for insufficiency to a defendant's answer, is to set them down for hear- ing after the expiration of eight days, but within fourteen days * In New Hampshire, exceptions will be deemed waived, unless allowed and de- livered to the defendant's solicitor within one month from the delivery of the an- swer, or unless further time be allowed by the justice. Rule 20 of Chancery Practice. 2 Boyse v. Cokell, 18 Jur. 770. ' The alteration in the practice with respect to common injunctions makes this last case immaterial. 65* 77-4 OF ANSWEES. from the filing of such exceptions. If he does not, the answer on the expiration of sucli fourteen days is to be deemed sufficient.' By the 15th Order, " The plaintiff, having shown exceptions to a defendant's answer for insufficiency as cause against dissolving an injunction, is to set down such exceptions for hearing at the latest on the day next after showing such exceptions as cause. If he does not, the injunction is dissolved." By the 16th Order, " After the filing of exceptions to a defend- ant's answer for insufficiency and any further answer put in, the plaintiff has fourteen days from the filing of such further answer within which he may set down the old exceptions. If the old ex- ceptions be not set down within fourteen days after such further answer put in, the answer is on the expiration of such fourteen days to be deemed sufficient. If the defendant wishes to submit to the exceptions, the 9th Order provides, that " A defendant, desiring to prevent exceptions to his answer for insufficiency being set down for hearing, has for that purpose only eight days after the filing of such exceptions within which he may submit to the same." And by the 10th Or- der, " If a defendant not being in contempt submits to exceptions to his answer for insufficiency, before the plaintiff has set them down for hearing, he is allowed three weeks from the date of the submission within which he is to put in his further answer to the bill." 1 If the exceptions have been set down, the 17tli Order provides, " After exceptions to an answer for insufficiency are set down for hearing, if a defendant, not being in contempt, submits to answer, or the Court hold the answer to be insufficient, the Court may, in such cases, appoint the time within which such defendant is to put in his further answer. If such defendant does not obtain time from the Court, or does not answer within the time which the Court al- lows, the plaintiff may sue out process against such defendant."^ ^ By the 63d Equity Rule of the United States Courts, " where exceptions shall be filed to the answer for insufficiency, within the period prescribed by these rules, if the defendant shall not submit to the same, and file an amended answer on the next succeeding rule day, the plaintiff shall forthwith set them down for a hear- ing on the next succeeding rule day thereafter, before a Judge of the Court ; and shall enter, as of course, in the order-book an order for that purpose. And if he shall not set down the same for a hearing, the exceptions shall be deemed aban- doned and the answer shall be deemed sufficient." '^ In New Hampshire, " if the defendant, on notice of exceptions to his answer, OF EXCEPTIONS TO ANSWERS. 775 By the 18tli Order, " The answer of a defendant is to be deemed sufficient." 1. If no exception for insufficiency be filed thereto within six weeks after the fihng of such answer.^ 2. If exceptions being filed the plaintiff does not set them down for hearing within fourteen days after the filing thereof.^ 3. If within fourteen days after the filing of a further answer the plaintiff does not set down the old exceptions. By the 20th Order, "If upon the hearing of exceptions the an- swer be held sufficient, it shall be deemed to be so from the date of the order made on the hearing, and if the defendant submits to answer without an order from the Court, the answer shall be deemed insufficient from the date of the submission." ^ It may be here mentioned that when exceptions to an answer for insufficiency are overruled, it is the usual practice to overrule them with costs.* By the 21st Order, " The Court holding a first or second answer shall deliver to the plaintiff's solicitor, before the day appointed for the hearing thereon, a sufficient answer, the same shall be received without costs. If the exceptions are sustained, the defendant shall deliver to the plaintiff's solicitor a full and complete answer thereto within one month, and pay such costs as the jus- tice allowing such exceptions shall order ; or the bill shall be taken pro con- fesso; but if the plaintiff so elects he may move for process of contempt to compel an answer. Rule 21 of Chancery Practice, 38 N. Hamp. 609. 1 See 61st Equity Rule of the United States Courts, and the 15th of the Rules of Practice in Chancery in Mass. ; ante, 772, note. 2 See 63d Equity Rule of the United States Courts. ' By the 64th Equity Rule of the United States Courts, it is provided, that «' if, at the hearing, the exceptions shall be allowed, the defendant shall be bound to put in a full and complete answer thereto, on the next succeeding "rule day ; otherwise the plaintiff shall, as of course, be entitled to take the bill, so far as the matter of such exceptions is concerned, as confessed, or, at his election, he may have a writ of attachment to compel the defendant to make a better answer to the matter of the exceptions ; and the defendant, when he is in custody, upon such writ, shall not* be discharged therefrom but by an order of the Court, or of a Judge thereof, upon his putting in such answer and complying with such other terms, as the Court or Judge may direct." * Stent V. Wickens, 5 De Gex & Sm. 384 ; and see Willis v. Childe, 13 Beav. 454. By the 65th Equity Rule of the United States Courts, it is provided, that " if, upon argument, the plaintiff's exceptions to the answer shall be overruled, or the answer shall be adjudged insufficient, 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." 776 OF ANSWERS. to be insufficient, may appoint the time within which a defendant, who is not in contempt, is to file a further answer." By the 22d Order, " Upon a third answer being held to be insuffi- cient, the Court may order the defendant to be examined upon in- terrogatories to the points held to be insufficient, and to stand committed until he shall have perfectly answered the interrogato- ries ; and the defendant is to pay such costs as the Court shall think fit to award." ^ With respect to the manner of setting down the exceptions, the 12th Order provides, that " Exceptions to answers for insuffi- ciency, or to any pleading or other matter depending before the Court for scandal and impertinence, or for scandal or imperti- nence, are to be set down for hearing by the registrar, at the re- quest of the party filing the same, upon the production of a certifi- cate of the Clerk of Records and Writs of the filing of such excep- tions ; or in the case of exceptions to an answer for insufficiency of the filing of a further answer, and the same are to be advanced, and put in the paper for hearing on an early day, and the party setting down any such exceptions shall on the day on which the same shall be so set down, serve a notice thereof on the party whose pleading or other matter is excepted to, otherwise the said excep- tions shall be deemed not set down." And by the 19th Order, " If after a defendant's second or third answer is filed, the plaintiff sets down the old exceptions for insufficiency, then the particular ex- ception or exceptions, to which he requires a further answer, is or are to be stated in the notice of setting down such exceptions." If, after the defendant's answer is found insufficient, the plaintiff obtains and serves an order, " that the defendant may answer the amendments and exceptions at the same time," the defendant will, it is presumed, have fourteen days to answer interrogatories of the amended bill and the exceptions.^ ^ By the 17th Eule for the Reg. of Prac. in Chan, in Mass., upon a second an- swer being adjudged insufficient, upon the same exceptions as those before al- lowed, costs shall be doubled by the Court, and the defendant may be examined upon interrogatories and committed until he shall answer them ; or the plaintiff may move the Court to take so much of the bill as is not answered, for confessed, and may file his replication, procure commissioners, and take testimony in the usual manner. * The time for putting in a voluntary answer to an amended bill, is eight days. If the defendant submits to answer exceptions he has three weeks to put in a fur- ther answer ; and it is not the practice to shorten this time when an order is ob- , OF EXCEPTIONS TO ANSWERS. 777 If the defendant, after exceptions allowed, can contrive to put in his further answer to the original bill, before the plaintitf serves the order for him to answer the amendments and exceptions at the same time, he will deprive the plaintiff of the benefit of that order. This practice was of consequence in former times, when the rules with respect to common injunctions were different from what they now are.^ A further answer, as well as an answer to an amended bill, is in every respect similar to and is considered as part of the answer to the original bill ; ^ therefore, if a defendant in a further answer, or an answer to an amended bill, repeats anything contained in a former answer, the repetition, unless it varies the defence in point of substance, or is otherwise necessary or expedient, will be con- sidered as impertinent.^ 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, to the original bill of com- plaint, and the answer of the same defendant to the amended bill of complaint of," &c.* If, after exceptions to the original bill are allowed, the plaintiff amends his bill, and the defendant puts in a further answer to the original bill and an answer to the amended bill, and the answer is referred back upon the old exceptions as to the original bill, and upon new exceptions as to the amendments, and is again reported insufficient, whereupon the bill is again amended, the answer should be, " a further answer to the original and first amended bill, and an answer to the secondly amended bill," &c. It is to be observed, however, that it is not necessary, in answer- tained to answer amendments and exceptions together. See Bennington Iron Co. V. Campbell, 2 Paige, 160. The Court (U. States C. C.) may, for the pur- pose of avoiding unnecessary delays, entertain a motion to amend a bill in Equity, at the same time that exceptions to the answer are filed, and may require the defendants to answer the amended matter and the exceptions together. Kit- tredge v. Claremont Bank, 3 Story C. C. 590. ^ Ante, p. 426, 427. ' '^ Story Eq. PI. § 868 ; Bennington Iron Co. v. Campbell, 2 Paige, 160 ; IVIit- ford Eq. PI. by Jeremy, 318. ^ Bowen v. Idley, 6 Paige, 46 ; Trust & Fire Ins. Co. v. Jenkins, 8 Paige, 590. * Peacock i;. The Duke of Bedford, 1 V. & B. 186. See Bennington Iron Co. V. Campbell, 2 Paige, 160 ; ib. 369. 778 OF ANSWERS. ing a bill which has been amended before answer, to call it an an- swer to the original and amended bill ; the most correct way is to call it " an answer to the amended bill " only, as the original bill has 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 and filed in the same manner as answers to original bills.2 We have before seen, that where a plaintiff amends his bill without requiring an answer to the amendments,^ the defendant must, if he chooses to answer, either do so within eight days from the time when he has notice of the amendment, or obtain an order for further time within the same period of eight days.* After an answer has been put in upon oath, the Court will not, for obvious reasons, readily suffer any alteration to be made in it.^ There are, however, many instances in the books in which it ap- pears that the Court, upon special application, has allowed the defendant to reform his answer.® Thus where, in an answer to a ^ Smith V. Bryon, 3 Mad. 428. * Ante, p. 744 et seq. * Where a plaintiiF, after excepting to an answer, amends his bill without wait- ing for the Master's report, he will be considered as having waived his excep- tions. De La Torre v. Bernales, 4 Mad. 396. But in Kittredge v. Claremont Bank, 3 Story C. C. 590, 609, Mr. Justice Story said, that it was entirely compe- tent for the Court in order to avoid unnecessary delays, to entertain a motion to amend a bill in Equity, at the same time that exceptions are filed, and, if the ex- ceptions are allowed, to require the defendants to answer the amended matter and the exceptions together, allowing a suitable time to accomplish the same. * Ord. 71, May, 1845 ; and 16 Ord. 38, Art. 38. * See Howe v. Russell, 36 Maine, 115 ; American Life Ins. & Trust Co. v. Bay- ard, and Same v. Sackett, 3 Barb. Ch. 610; Vandervere v. Reading, 1 Stockt. (N. J.) 446. In Maine, answers, pleas, and rules may be amended at any time on the like terms as a bill. Rule 3, Maine Chancery Practice. But see Howe v. Russell, 36 Maine, 115. ' In matters of form, or mistakes of dates, or verbal inaccuracies. Courts of Equity are very indulgent in allowing amendments of answers ; but it is only 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 v. Cross, 4 John. Ch. 375 ; 1 Barb. Ch. Pr. 163, 164 ; Smith V. Babcock, 3 Sumner, 583 ; Burden v. M'Elmoyle, 1 Bailey Eq. 375 ; Western Reserve Bank v. Stryker, 1 Clarke, 380 ; Cock v. Evans, 9 Yerger, 287, 288 ; Giles v. Giles, 1 Bailey Eq. 428 ; Caster v. Wood, 1 Bald, 289 ; Culloway V. Dobson, 1 Brock. 119 ; Liggon v. Smith, 4 Hen. & Munf 405 ; Coffman v. Al- lin, Litt. Sel. Ca. 201 ; Mason v. Debow, 2 Hayw. 178 ; Flora v. Rogers, 4 Hayw. OF EXCEPTIONS TO ANSWERS. 779 tithe bill, the defendant had sworn that fi certain close contained nine acres, he was permitted to amend it by stating the close to contain seventeen acres, even though issue had been joined and a commission issued.^ So where, owing to the mistake of the en- grossing clerk, the words " her shares " had been introduced into an answer instead of " ten shares," the answer was allowed to be taken off the file and amended.^ And where there has been a mistake in the title of the answer, an amendment of it has been permitted.^ The Court has also allowed a defendant to amend his answer where new matter has come to his knowledge since it was put in,* or in cases of surprise, as where an addition has been made to the draft of the answer after the defendant has perused it.^ In like 202 ; Jackson v. Cutright, 5 Munf. 308 ; Beach v. Fulton Bank, 3 Wendell, 574 ; Hennings v. Conner, 4 Bibb, 299 ; Taylor v. Bogert, 5 Paige, 33. This subject is treated at length in Story Eq. PI. § 896 to 901 ; also in Smith v. Babcock, uhi supra; Williams v. The Savage Manuf. Co. 3 Maryland Ch. Dec. 418 ; Tilling- hast V. Champlin, 4 Rhode Isl. 128 ; Howe v. Russell, 36 Maine, 115 ; Vandervere V. Reading, 1 Stockt. (N. 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 may 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 repli- cation, or such setting down for a hearing, it shall not be amended in any mate- rial matters, as by adding new facts or defences, or qualifying or altering the original statements, except by special leave of the Court, or the Judge thereof, upon motion and cause shown after due notice to the adverse party, supported, 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 be separately engrossed and added as. a distinct 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 Re- serve Bank v. Stryker, 1 Clarke, 380. AVhere an answer is amended, the old answer must remain on file as originally put in. lb. ^ Berney v. Chambers, Bunb. 248 ; see also Montague v. , cited ib. n., and Gwil. 674, n. - Countess of Gainsborough v. Gilford, 2 P. Wms. 424. But see Vandervere V. Reading, 1 Stockt. (N. J.) 446. ^ Griffiths W.Wood, Amb. 62; White v. Godbold, 1 Mad. 269; Peacock v. Duke of Bedford, 1 V. & B. 186. * Patterson v. Slaughter, Amb. 292 ; Wells v. Wood, 10 Ves. 401 ; Tillinghast V. Champlin, 4 Rhode Isl. 128. * Chute V. Lady Dacre, 1 Eq. Ca. Ab. 29. Especially where the answer has not been sworn to. Taylor v. Dodd, 5 Ind. (Porter,) 246. 780 OF ANSWERS. manner, vrhere a plaintiflf, having drawn the defendant into an agreement, whereby, for a small consideration, he was to relin- quish 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 per- formed, to which the defendant put in an answer confessing the agreement, and submitting to have it performed, but, afterwards discovering that the estate was of several thousand pounds' value, he applied for leave to take his answer off the file, and to put in another, which was granted.^ The Court has also permitted a defendant to amend an answer by limiting the admission of assets it contained where it was clearly established that such admission had been made by mistake, and through the carelessness of the solicitor's clerk.^ 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 under a mistake in point of law; and not on the ground of a fact having been incorrectly stated.^ Thus where a defendant, who was an executor, had admitted himself accountable for the sur- plus, and it was afterwards found that the circumstances of the case were such that he would have been entitled to it himself, per- mission 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 refused to bring it into hotchpot, he was not permitted to amend his answer as to the admission, al- though he swore that he made it under a mistake as to the law of the case.^ * Alpha V. Payman, 1 Dick. 33. So where an order, granting to the plaintiff the right to surcharge and falsify an account, was appealed from, and the appel- late Court remanded the cause for the purpose of having the pleadings amended, and for further proceedings, and extended the right to surcharge and falsify the account to both parties, provided the defendant's amended pleadings should war- rant such extension, it was held that the defendant could amend his answer so as to surcharge and falsify in respect to matters known to him at the time of filing his original answer. Williams v. The Savage Manuf Co. 3 JNIaryland Ch. Dec. 418. ^ Dagley v. Crump, 1 Dick. 35 ; Hughes v. Bloomer, 9 Paige, 26D. ' Branch v. Dawson, 9 Georgia, 592. So where there has been a decree to account, the defendant will not be permitted to amend his answer so as to embrace the defence of the Statute of Limitations. McRea v. David, 7 Rich. E(j. (S. C.) 375. * Rawlins v. Powel, 1 P. Wms. 300. See, however, Brown v. Lake, 1 De G. & Sm. 144. * Pearce v. Grove, Amb. 63 ; 3 Atk. 522, S. C. OF EXCEPTIONS TO ANSWERS. 781 The Court will also refuse to permit an amendment of an an- swer after an indictment for perjury preferred or threatened, even though 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 appears, that it was formerly the gen- eral practice of the Court, if it saw a sufficient ground for so do- ing, to permit the defendant to amend his answer. Lord Thurlow, however, as it seems, introduced a better course in cases of mis- take ; not taking the answer off the file, but permitting a sort of supplemental answer to be filed, and by that course leaving to the parties the effect of what has been sworn before, with the ex- planation given by the supplemental answer.^ This practice has been since adopted in all cases in which it is wished 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 ex- tended to other analogous cases ; as where a defendant, at the time of putting in his original answer, was ignorant of a particular cir- cumstance, he has been permitted to introduce that circumstance by supplemental answer.* And where a defendant had wished to ^ Verney v. Macnamara, 1 Bro. C. C. 419. • * Per Lord Eldon, in Dolder v. Bank of England, 10 Ves. 284. See Jennings V. Merton College, 8 Ves. 79 ; Wells v. Wood, 10 Ves. 401. See Bowenr. Cross, 4 John. Ch. 375 ; Vandevere v. Reading, 1 Stockt. (N. J.) 446 ; 1 Barb. Ch. Pr. 165, 166 ; Howe v. Russell, 36 Maine, 124 ; Edwards v. M'Lear, 2 Ves. & B. 256 ; 1 Smith. Ch. Pr. (2d Am. ed.) 270. A supplemental answer, to correct an error in the original answer, will not be allowed except with great caution, and always on equitable terms as to costs and furnishing copies gratis. Western Reserve Bank V, Stryker, 1 Clarke, 380. When a supplemental answer is put in, the old answer must remain on file as it was originally put in. Murdock's Case, 2 Bland, 261 ; Western Reserve Bank v. Stryker, 1 Clarke, 380. An application will not be entertained to file a supplemental answer to change the whole ground of de- fence set up in the first answer. Murdock's Case, 2 Bland, 261 ; Western Reserve Bank v. Stryker, 1 Clarke, 380. The defendant will not be allowed to amend his answer after the opinion of the Court and the testimony have indicated ia what respect it may be modified so as to effect his purpose. CoUoway v. Dobson, 1 Brock. 119. A defendant is not allowed to file a supplemental answer for the purpose of setting up an important fact, which" has arisen since the filing of the original answer. He should file a bill in the nature of a supplemental bill. Tay- lor V. Titus, 2 Edw. Ch. 135 ; Story Eq. PI. § 903. ' Strange v. Collins, 2 V. & B. 163 ; Taylor v. Obee, 3 Pri. 83 ; Ridley v. Obee, Wightw. 32 ; Fulton v. Gilmore, 1 Phil. 522 ; Mounce v. Byars, 11 Geor- gia, 180 ; Tillinghast v. Champlin, 4 Rhode Isl. 128. * Jackson v. Parish, 1 Sim. 505 ; Tidswell v. Bowyer, 7 Sim. 64 ; see Const v. VOL. I. 66 782 OF ANSWERS. state a fact in liis original answer, but had been induced to leave it out by the mistaken advice of his soHcitor, he was allowed to state it by supplemental answer.^ So where the defendant had been induced, by the misrepresentation of the plaintiff that certain securities mentioned in the bill liad been fairly obtained, to put in an answer admitting the securities, &c., the defendant was permit- ted, upon application, to file a supplemental answer.^ But although the Court will, in cases of mistake, or other cases of that description, permit a defendant to correct his answer by a supplemental answer, it always does so with great difficulty, where an addition is to be put upon the record prejudicial to the plaintiff, 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.^ And therefore where a defendant had, by his original answer to a bill for the spe- cific performance of a contract, admitted that he took possession of the whole property in pursuance of the contract, but afterwards applied for leave to put in a supplemental answer to limit the ad- mission to part of the premises only, upon affidavits of mistake, the motion was refused unless the defendant would state, upon his oath, that, when he swore to his original answer, he meant to swear in the sense in which he, by his application, desired to be permitted to swear to it.* The Court also requires, that, in making the application, the de- fendant should state specifically what he wishes to put upon record, in order that it may judge how far his application is reasonable.^ And it is to be observed, that the Court will not allow a supple- Barr, 2 Mer. 57 ; Frankland v. Overend, 9 Sim. 365 ; Talmage i^. Pell, 9 Paige, 410; Suydam v. Truesdale, 6 McLean, 459. ^ Nail V. Punter, 4 Sim. 474. ^ Curling V. Marquis ot" Townshend, 19 Ves. 628. See Stamps v. Birmingham Railway Company, 2 Phil. 673; Anon. liopk. 27; Smith v. Smith, 4 Paige, 132. « Edwards v. M'Leay, 2 V. & B. 256 ; Phelps v. Prothero, 2 De G. & Sm. 278 ; Swallow V. Day, 2 Coll. 133 ; Hughes v. Bloomer, 9 Paige, 2G9. * Livesey v. Wilson, 1 V. & B. 149 ; see also Greenwood v. Atkinson, 4 Sim. 54 ; Murdock's Case, 2 Bland, 461 ; Vandervere v. Reading, 1 Stockt. (N. J.) 446. A defendant will not be allowed to file a supplemental answer contradict- ing the statements in the first answer. Greenwood v. Atkinson, 4 Sim. 61. See Thomas v. Visitors of Frederick Co. School, 7 Gill & John. 389. * Curling V. Marquis of Townshend, 19 Ves. 628, 631 ; Smith v. Hartley, 5 Beav. 432; Haslar v. Hollis, 2 Beav. 236 ; Fulton v. Gilmore, 8 Beav. 154. OF EXCEPTIONS TO ANSWERS. 783 mental answer to be filed, unless on new matter, nor unless a suf- ficient reason appears for not having inserted it in the original answer,^ It is also to be observed, that, in making an application for leave to file a supplemental answer, the defendant must make such a case that it shall appear to be due to general justice to permit the case already on record to be altered ; and even where a defendant applied for leave to file a supplemental answer for the purpose of making an admission in favor of the plaintiff, upon an affidavit that, from certain circumstances which had since occurred, he was satisfied he ought to have admitted a fact which he had denied ; ^ Lord Eldon held, that the affidavit ought to have stated, that, at the time of putting in the answer, the defendant did not know the circumstances upon which he made the application, or any- other circumstances upon which he ought to have stated the fact otherwise.^ When a defendant has obtained permission to file a supplemental answer for the purpose of correcting a mistake in his original an- swer, he must confine his supplemental answer strictly to the cor- rection 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> It is to be observed, that where a defendant has, at the time of putting in his original answer, mistaken facts, he cannot contra- vene his own admission in any other way than by moving to cor- rect his answer either by amendment or supplemental answer. He cannot do so by filing a cross bill.^ There appears to be no particular limit to the time within which an application 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 1 Tennant v. Wilsmore, 2 Anst. 362; Scott v. Carter, 1 Y. & J. 452; Smith v. Babcock, 3 Sumner, 585 ; Vandervere v. Reading, 1 Stockt. (N. J.) 446. ^ The motion for leave to file a supplemental answer must be accompanied with an affidavit. Thomas v. Doub, 1 Maryland, 252 ; McKim v. Thompson, 1 Bland, 150. 8 Wells V. Wood, 10 Ves. 401. * Strange v. Collins, 2 V. & B. 163, 167; Podmore v. Skipworth, 2 Sim. 565. ^ Berkley v. Ryder, 2 Ves. 633; Graham v. Tankersley, 15 Ala. 634. 784 OF ANSWERS. correct at first.^ Accordingly we find several instances in the books in which such applications have been granted after replica- tion.- Wiiere, 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 will not permit a supple- mental answer to be filed. Therefore, where an application for leave to file such an answer was made after the cause had been set down for hearing, 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, but must apply for leave to file a supplemental answer for the pur- pose of correcting the mistake ; the old course of taking the an- swer off the file and amending it, is still pursued in cases of error or mistake in matters of form. Thus, in White v. Godbold,* where the title of an answer was defective, a motion by the defendant to take it off" the file and amend and reswear it, was granted ; and so where, in the title of an answer, the name of the plaintiff was mis- taken, a similar order was made.^ The addition of the name of a party omitted in the title has also been permitted.^ In general the Court will not permit any amendments without making it part of the order that the answer shall be resworn, or, in case of a peer, again attested upon honor.'^ The Court has also permitted an answer to be amended by add- ing the name of the counsel who signed the same to the record.^ It seems that a supplemental answer cannot be excepted to with- out leave, so that for the purpose of determining the time at which the defendant may move to dismiss the bill, a supplemental answer is to be deemed sufficient when it is filed.^ If any irregularity has occurred either in the frame or form of * Martin v. Atkinson, 5 Geo. 390. - Curling V. Marquis of Townshend, ubi supra ; Jackson v. Parish, 1 Sim. 505. ^ Macdougall v. Furrier, 4 Russ. 486 ; see, however, Fulton v. Gilmore, 1 Fhil. 522. * 1 Mad. 269. * Peacock v. Duke of Bedford, 1 V. & B. 186 ; Woodger v. Crumpton, 1 Fowl Ex. Pr. 389 ; Lloyd v. Mytton, ib. ; Keen v. Stanley, ib. ' Wright V. Campbell, ib. ' Peacock v. Duke of Bedford, uhi supra; Swallow v. Day, 2 Coll. 135. 8 Harrison v. Delmont, 1 Pri. 108; Whitehead v. Cunliffe, 2 Y. & C Exch. Rep. 3. ^ Barnes v. Tweddle, 10 Sim. 481. OF EXCEPTIONS TO ANSWERS. 785 an answer, or in the taking or filing of it, the plaintiff may take advantage of such irregularity by moving to take the answer off the file.^ Instances in which such motions may be made have been before pointed out.^ All, therefore, that need now be sug- gested on this part of the subject is, that if the plaintiif intends to apply to the Court to take an answer off the file for irregularity, he should do so before he accepts the answer, otherwise he will have waived his right to make the application ; ^ unless in the case of an irregularity in the jurat, or of an omission of the oath or attestation of honor of the defendant, without an order to warrant ' See Littlejohn v. Munn, 3 Paige, 280 ; Supervisors, &c. v. Mississippi &c. R. R. Co. 21 111. 338; Spivey v. Frazee, 7 Ind. 661 ; McLure v. Colclough, 17 Ala. 89. An answer, taken by commission will be taken off the file, if the jurat does not state where it was sworn. Henry v. Costello, 1 Hogan, 130. The answer of a foreigner, who does not understand English, must be sworn in the language he speaks, and be filed with an English translation ; and if he files an answer in English only it will be taken off the file. Hayes v. Lequin, 1 Hogan, 274. But a mistake in the English translation of an answer is no ground for taking it off the file. lb. An answer was taken off the file for irregularity ; one skin only out of six skins having been signed by the defendant. Lord Moncaster v. Braith- waite, 1 Young, 382; Carter v. Bosanquet, 13 Price, 604; Bailey v. Forbes, M'Clel. & Y. 462. So where the answer has not been signed at all. Dennison V. Bassford, 7 Paige, 370. A bill amended without leave was ordered to be taken off the file. Thomas v. Frederick Co. School, 7 Gill & John. 369. If the plain- tiff waives an answer on oath, he cannot apply to have it taken off the files on the ground that the defendant knows it to be wholly untrue. Dennison v. Bass- ford, 7 Paige, 370. In a suit against husband and wife, the filing of a separate answer by the husband, was held irregular, and no act of waiver on the part of the plaintiff appearing, the Court held that it must be taken off the file. Leavitt V. Cruger ei ux, 1 Paige, 422. For other cases where an answer will be taken from the files, see Ferine v. Swaine, 1 John. Ch. 24 ; Trumbull v. Gibbons, Halst. Dig. 172 ; Nesbitt v. Dellam, 7 Gill & John. 494 ; Fulton Bank v. Beach, 6 Wen- dell, 36 ; N. York Chem. Co. v. Flowers, 6 Paige, 654. An application to take an answer off the file, in order to prosecute for perjury, is made to the discretion of the Court, and will not be granted unless some ground is laid to enable the Court to judge of the propriety of such a proceeding. Daly v. Toole, 1 Irish Eq. 344 ; S. C. 2 Dru. & Wal, 599. The Court will not allow an answer to be taken off" the file for this purpose, if it appear, that the alleged perjury is in a part wholly immaterial to the merits of the case. M'Gowan v. Hall, Hayes, 17. See Napier V. Napier, 1 Irish Eq. 414 ; S. C. 2 Dru. & Wal. 604. * Ante, pp. 744, 762; and see Fry v. Martell, 4 Beav. 487. ' Taking an office copy of the answer does not seem to be an acceptance for this purpose. Fry v. Martell, 4 Beav. 489 ; and Woodyard u. Tremaine, 9 Sim. 301. 66* 786 OF ANSWERS. such omission, in wliich cases, as we have seen, there can be no waiver of the irreguUirity.^ The Court has sometimes also, as has been stated in the last sec- tion, allowed an answer to be taken off the file on application on the part of the defendant, for the purpose of enabling him to cor- rect a mistake in its form ; but it does so only, as we have seen, upon the condition that the defendant shall, immediately upon the correction being made, reswear it ; and it will never make such an order where the plaintiff can be at all prejudiced by it. Upon the whole, the practice of the Court, as laid down in the foregoing cases, appears to be that, although the Court will re- move from the file any document which purports to be an answer, but which is not so in reality ; yet, if any part of such document does entitle it to fill the character which it assumes, although it is an answer only to one fact, the Court will not take upon itself to decide whether it is evasive or not, but will leave the plaintiff to except to it for insufficiency. But it seems clear, that even in those cases in which the Court would take the document off the file, it will not entertain an ap- plication for that purpose after the plaintiff has delivered excep- tions to it for insufficiency.^ Lastly, it may be observed, that the Court will, upon the con- sent of all parties, order pleadings to be taken off the file, where they contain matter which it is desirable should not remain re- corded.^ Section III. Of Disclaimers. Before leaving the subject of answers it is necessary to say a few words on the subject of disclaimers, which have been on for- mer occasions treated as a distinct species of defence, and made the subject of a separate chapter. ^ Ante, pp. 755, 756 ; see Trumbull v. Gibbons, 1 Halst. Dig. 1 72 ; Nesbitt v. Dcllam, 7 Gill & John. 494 ; Scott v. Allett, 1 Hogan, 375. * Glassington r. Thwaites, uhi supra. ^ Walton t;. Broadbent, 3 Hare, 334; Tremaine v, Tremaine, 1 Vern. 189; Jewin V. Taylor, 6 Beav. 120. OF DISCLAIMERS. 78T A disclaimer is, however, really the form of answer put in by a person who, upon oath, denies tliat he lias or claims any right to the thing in demand by the plaintiff 's bill, and disclaims, i. e. re- nounces all claim thereto.^ It is a rule, that a defendant cannot shelter himself from answer- ing, 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 against him, — he cannot disclaim his liability ; ^ therefore, it has been held that a party to an account cannot, by disclaiming an interest in the account, protect himself, by such dis- claimer, from setting out the accounts.^ Nor when the bill seeks to charge the defendant with the costs of the cause, can he evade by disclaiming all interest in the subject of the suit, giving a dis- covery of those facts by which the plaintiff seeks to substantiate his charge.* So, if fraud be charged against the defendant seeking to disclaim, a disclaimer alone is insufficient, and an answer must be given to the imputed fraud.^ And it seems that in such a case, although 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 J It is to be observed also, that a disclaimer by one defendant can- not, in any case, be permitted to prejudice the plaintiff's right as against the others. And, therefore, where a bill was filed against the lessees of tithes, under a parol demise, for an account, &c., and the lessor was made a party defendant, who disclaimed ; the dis- 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.^ 1 Story Eq. PI. § 838, et seq. ; Bentley v. Cowman, 6 Gill & John. 152. * A defendant cannot by disclaiming deprive the plaintiiF of the right to re- quire a full answer from him, unless it is evident that the defendant should not, after the disclaimer, be continued a party to 'the suit. Ellsworth v. Curtis, 10 Paige, 105. ^ Glassington v. Thwaites, 2 Russ. 458. * Graham v. Cope, 3 M. & C. 638; 9 Sim. 103. ^ Bulkeley v. Dunbar, 1 Anst. 37. « Whiting V. Rush, 2 Y. & C. 546, Exch. R. ^ S. C, and see Silcock v. Roynon, 2 Y. & C. 376. ' Williams v. Jones, 1 Younge, 252. 788 OF ANSWERS. A disclaimer is, as has been stated, in reality, an answer, and is put in and filed in the same way,^ and the material part is, that the defendant disclaims all right and title to the matter in demand.^ So also a disclaimer is open to exceptions by the plaintiff in the same manner as any other answer.^ If, however, instead of applying in the first instance to the Court by motion, to take the disclaimer off the file, the plaintiff delivers exceptions, he will be precluded from afterwards moving for that purpose.* Where a defendant puts in a general disclaimer to the whole bill, the plaintiff ought not to reply to it,^ unless the defendant goes into evidence in support of it.^ If he does so the defendant has been allowed to have his costs taxed against the plaintiff for vexationJ 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 an- swer.^ 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 the hearing.^ When a defendant had occasioned the suit in consequence of a claim to the fund set up by himself, which he refused to release or ^ Hind. 209 ; ante, p. 744, &c. * A disclaimer should be full and explicit in all respects. Worthington v. Lee, 2 Bland, 678. ^ But it has been held that where a simple disclaimer is filed, a plaintiff who is entitled to an answer must move to take the disclaimer off the files, and he can- not except ; but if the disclaimer is accompanied by an insufficient answer, the plaintiff should except to the answer. Ellsworth v. Curtis, 10 Paige, 105. * Glassington v. Thwaites, supra. ^ No replication is necessary in order to bring a disclaimer to a hearing. Spof- ford V. Manning, 2 Edw. Ch. 358» ^ See the observations of Sir J. Romilly, M. R., in Ford v. Lord Chesterfield, 16 Beav. 520. ' Williams v. Longfellow, 3 Atk. 582. ' Williams v. Longfellow, 3 Atk. 582 ; Curs. Cane. 209 ; Phillips v. Davies, 2 Jurist, 52; Bailey u. Lambert, 5 Hare, 178; Wiggington v. Palmer, 12 Ju- rist, 89. » Cash V. Belcher, 1 Hare, 313 ; Prac. Reg. 175 ; Hind. 209. OF DISCLAIMERS. 789 to verify, and afterwards put in a disclaimer, stating in liis 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 him, in consequence of which the plain- tiff examined a great number of witnesses to falsify such state- ment, but no witnesses were examined by the defendant, Sir L. Shadwell ordered him to pay the whole 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 that 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 will, upon the ground of ignorance or mis- take, permit him to make his claim. It will not, however, allow a defendant to do so at the hearing of the cause : he must, in order to get rid of the effect of his disclaimer, make a distinct applica- tion, supported by affidavits, setting forth the facts 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 will grant the application.^ Questions of some nicety frequently arise in suits for foreclosure, and in other suits of a similar description, for establishing equi- table claims or demands against real estate, as to the right to costs of persons made defendants in consequence of rights or interests which they have in the estate, subject to those of the plaintiff, so that his title cannot be complete without their co-operation, but which rights or interests they are willing absolutely to disclaim. The cases of Appleby v. Duke and Clark v. Wilmot,* establish that in foreclosure suits neither the provisional assignee of a devisee of a mortgagor, nor such assignee of a subsequent incumbrancer, is entitled as against the plaintiflf to his costs where he does not dis- ^ Deacon v. Deacon, 7 Sim. 378. See Hutchinson v. Reed, 1 HofF. Ch. Rep. 315. 2 Sidden v. Lediard, 1 R. & M. 110. » Seton V. Slade, 7 Ves. 265-267. * Phill. 272 and 276; see the observations of the Vice-Chancellor in Staffurth V. Pott, 2 De G. & Sm. 571. 790 OF ANSWERS. claim by answer, but does absolutely disclaim at the hearing of the cause. These cases do not go any further than the above pro- position, but the reasoning upon which they are founded leads to the conclusion, that in questions of this description there is no dif- ference between the right of an assignee in bankruptcy or insolv- ency, and that of the party whose interests he represents. In both of these cases the assignee was a proper party, and he did not disclaim by answer. A subsequent question arises, con- cerning the right to costs of a person interested in the equity of redemption, or in the estate subject to the lien, who is properly made a party, but who disclaims all interest absolutely by his an- swer. The case of Tipping v. Power ^ was a creditor's suit, by a simple contract creditor, seeking, in addition to the ordinary remedies of a creditor's suit, the sale of a certain piece of land upon which the plaintiff had a security by way of equitable mortgage. The parties interested in the real estate admitted the case of the plain- tiff, disclaimed all interest in the mortgaged estate, and insisted that they were entitled to their costs of the suit, or at least their costs from the time of their disclaimer, upon the suggestion that the bill ought then to have been dismissed against them. Sir J. Wigram, V. C, decided against their claim, apparently upon the general principle that, being interested at the time of filing of the bill, and no special* circumstances occurring in the case, the mere fact of their saying on the record in effect that they found their in- terest worth nothing, and therefore repudiating it, did not prove that they were improperly made defendants, and therefore did not entitle them to their costs. Upon a similar principle in the case of Cash v. Belcher,^ which was strictly a foreclosure suit, his Honor refused the assignees in bank- ruptcy of the mortgagor their costs, although they absolutely dis- claimed by their answer. In all these cases the defendant has had an interest in the estate at the time of the filing the bill. In the case of Teed v. Car- ruthers,^ the defendant had parted with his interest prior to the date of the filing of the bill, whereupon Sir J. L. Knight Bruce, V. C, observing that " it appeared to him that that state of things might have been learnt by the plaintiff if he had desired to inform ^ 1 Hare, 405. « 1 Hare, 310. » 2 Y. & C. 31. OF THE JOINDER OF SEVERAL DEFENCES. 791 • himself of it,^ and that he should hare endeavored to inform him- self of it before the bill was filed," dismissed the bill with costs, and held that the plaintiff was not entitled to have them over. The position of defendants wishing to disclaim to avoid all re- sponsibility as to costs will now, in some cases, be altered by the change in the practice of the Court, which relieves a defendant from the necessity of putting in any answer unless he is specially interrogated. ';.v — -nr CHAPTER XVII. OF THE JOINDER OF SEVERAL DEFENCES. It has been before stated that all or any of the several modes of defence before enumerated may be joined in a defence to one bill ; 2 thus a defendant may demur to one part of the bill, plead to another, answer to another, and disclaim as to another.^ A de- fendant may also, as we have seen, put in separate and distinct demurrers to separate and distinct parts of the same bill.^ He may also plead different matters to separate parts of the same bill.^ When this species of defence is adopted, the same rules which have ^ With respect to the necessity for the plaintiff making an application to a defendant of this description before making him a party, see Gurney v. Jackson, 1 Sm. & Gif 97. For further information on this subject, see Ford v. Lord Ches- terfield, 16 Beav. 516. * Ante, p. 555. Provided each relates to a separate and distinct part of the bill. Mitford Eq. PI. by Jeremy, 106, 319; Livingston v. Story, 9 Peters, 623 ; Lube Eq. PI. 319; Clark v. Phelps, 6 John. Ch. 214; Beauchamp v. Gibbs, 1 Bibb, 481 ; Robertson v. Bingley, 1 M'Cord, Ch. 352. * Lord Red. 319. Rule 21, of Mass. Chancery Practice; Rule 6, Maine Ch. Practice. By the 3 2d Equity Rule of the United States Courts, the defendant may, at any time before the bill is taken as confessed, or afterwards with the leave of the Court, demur or plead to the whole bill, or to part of it ; and lie may demur to part, plead to part, and answer as to the residue. Or the defendant, in Mas- sachusetts, may, instead of filing a formal demurrer or plea, insist on any special matter in his answer, and have the same benefit thereof as if he had pleaded the same, or demurred to the bill. Rule 28, 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 39th Equity Rule of the United States Courts. * Ante, p. 609. ^ Ibid. 635. 792 OF THE JOINDER OF SEVERAL DEFENCES. 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 collectively. Lord Rcdcsdale 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 demurred, neither can he answer to any part to which he has either demurred or pleaded, the demiirrer demand- ing 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 caiirthe 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 an- swer a plea ; ^ and if a disclaimer and answer are inconsistent, the matter will be taken most strongly against the defendant upon the disclaimer." * The 36th and 37th Orders,^ of August, 1841, have, as we have seen, in some respect modified the strictness of those principles, by directing that no demurrer or plea shall be held bad and overruled on argument, only because such demurrer or plea shall not cover so much of the bill as it might, by law have extended to, or only because the answer of the defendant may extend to some part of the same matter as may be covered by such demurrer or plea. In all cases not coming strictly within the terms of these Orders, the principles above quoted from Lord Redesdale still apply, and in addition thereto, it is to be remarked, that it has been a general rule where a defendant adopts this mode of defence, not only that each defence should in words be applicable to the distinct part of ' See Bolton v. Gardner, 3 Paige, 273. * See Spofford v. Manning, 6 Paige, 383 ; Miller v. Farse, 1 Bailey, Eq. 187 ; H. K. Chase's Case, 1 Bland, 217 ; Souzer v. De Meyer, 2 Paige, 574 ; Robertson V. Bingley, 1 M'Cord Ch. 352. See Rule 21 of the Reg. of Prac. In Chanc. in Mass. ; and 3 2d Equity Rule of the United States Courts. 3 Bolton V. Gardner, 3 Paige, 273; H. K. Chase's Case, 1 Bland, 217; Souzer V. De Meyer, 2 Paige, 574 ; Ferguson v. O'Harra, 1 Peters C. C. 493 ; Leacraft V. Dempsey, 4 Paige, 124 ; Stearns v. Page, 1 Story C. C. 204. In Maine, "de- murrers, pleas, and answers will be decided on their own merits, and one will not be regarded as overruling another." Rule 6, of Chancery Practice, 37 Maine, 583. ♦ Lord Red. 319. ■• These orders have been adopted in the 36th and 37th Equity Rules of the Supreme Court of the United States, January Term, 1842. OF THE JOINDER OF SEVERAL DEFENCES. 793 the bill to which it professes to apply, but that it should also, in substance, relate peculiarly to that part of the bill which it pro- fessed to cover, so that a defence, in words applicable to part of a bill only, but in reality applicable to the wliole bill, was not good, and could not stand in conjunction with another distinct defence applicable and applied to another distinct part of the bill : ^ where, therefore, a defendant, as to part of a bill, put in a plea that there was no outstanding term, and a demurrer as to the rest on. the ground that the plaintiff had no title. Lord Langdalc, M. R., al- though he held the plea to be good, was of opinion 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.^ It is to be observed that when a demurrer is to part only of the bill, and is accompanied by an answer or other defence to the re- mainder, it should be entitled, " The demurrer of A. B. 8fC. to part of the bill of complaint of C. D., and the answer, Sfc., of the said A. B., to the remainder of the said bill of coi?rplaint.'' ^ The same rule is applicable to cases where the defence is partly by plea aii^d partly by answer, except in those cases where the answer is in support of the plea ; in such cases the plea and answer form but one defence, and the title is properly a " Plea and Answer.'' ^ A demurrer, coupled with a plea and answer, or either of these defences, may be put in after the twelve days allowed for demur- ring alone have expired.^ It may also be taken under a commis- sion to take a plea, answer, and demurrer, but not under a com- mission to take an answer only.^ Where a defence of this nature has been put in, the first thing 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 argument in the usual wayJ If, however, there should be any ^ Crouch V. HIckin, 1 Keen, 385. 2 Ibid. His Lordship, however, allowed a demurrer ore tenus for want of equity to that part of the bill which was not covered by the plea; ante, p. 614. ' Tomllnson v. Swinnerton, 1 Keen, 9, 13. * Ante, p. 704. If an answer commences as an answer to the whole bill, it overrules a plea or demurrer to any particular part of the bill, although such part is not in fact answered. Leacraft v. Demprey, 4 Paige, 124. * Ante, pp. 750, 751. * Tomlinson v. Swinnerton, ubi supra. "> Ante, p. 619. VOL. I. 67 794 OF THE JOINDER OF SEVERAL DEFENCES. impertinence in the plea or answer, care should be taken to have it expunged before it is set down, as the setting down a plea for argument is, as we have seen, a waiver of the impertinence ; ^ but the plaintiff must be careful not to amend his bill, or except to the answer for insufficieifcy, before the demurrer and plea have been disposed of, otherwise they will be overruled.^ If, upon the argument, the demurrer and plea are, or either of them are, overruled, the plaintiff may deliver exceptions for in- sufficiency, extending not only to the answer but to the parts of the bill which were intended to be covered by the demurrer and plea ; but if the demurrer and plea, or either of them, are allowed, the exceptions must not extend to the parts of the bill covered by them.^ The proper course to be pursued, where a partial de- murrer 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 demurrer has been allowed, ore tenns, for want of parties, the bill may be amended by adding the necessary parties, or stating them to be out of the jurisdiction of the Court ; and it seems that such an amendment will not preclude the plaintiff from excepting to the answer as to those parts of the bill which are not covered by the demurrer.^ It is to be recollected, that, after a plea has been allowed, no amendment of the bill can be made without leave of the Court ; and that, in applying for such leave 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 Ante, p. 714. 2 Ibid. p. 714. ; « Ibid. p. 771. * Taylor v. Bailey, 3 M. & C. 677 ; Foster v. Fisher, 4 Law J., N. S. 237. * Ante, p. 424. OF MOTIONS TO DISMISS. — ON THE PART OF THE PLAINTIFF. 795 CHAPTER XYIII. OF MOTIONS TO DISMISS. Sect. I. — On the Part of the Plaintiff. According to the practice of the Court, as determined by the Orders of May, 1845,^ a plaintiff has four weeks from the time when (according to the rules laid down in the last Chapter) the last answer is to be deemed sufficient, to consider what his future course of proceeding in the cause shall be. During that time, he may either amend his bill, or file a replica- tion ; or he may set the cause down for hearing upon bill and an- swer ; or he may, under the recent changes in practice, give notice of a motion for a decree ; or else he may, if, upon due considera- tion, he conceives that he shall not be able effectually to prosecute the cause, apply to the Court, by motion, to dismiss his own bill, either as against all the defendants, or against such of them as he thinks he can dispense with, with costs. This he may do as a matter of course.^ It seems once to have been the privilege of the plaintiff to dis- miss his bill, when the defendant had answered, upon payment of 2O5. costs ; but that rule was altered and the Statute of Anne ^ enacted,* that, upon the plaintiff's dismissing his own bill, or the defendant's dismissing- the same for want of prosecutio7i, the plain- tiff in such suit shall pap to the defendant or defendants his or their full costs, to be taxed by the Master. The Court, therefore, will, in no case, after appearance, make an order to dismiss a bill, on the plaintiff's application, without costs, unless upon the defend- ant's consent actually given in Court,^ even though the ground of the application be, that, upon the hearing of the cause, the Court 1 Ord. 16, Art. 37, see post, p. 799. 2 Dixon V. Parks, 1 Ves. jr. 402. 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. Rumbly v. Stainton, 24 Alabama, 712. » Anon. 1 Vern. 116-334; Newsham v. Gray, 2 Atk. 288; Prac. Reg. 148; Beames on Costs, 228. * 4 Ann. c. 16, § 23. ^ Dixon V. Parkes, ubi supra; Fisher v. Quick, 1 Stockt. (N. J.) 312. 796 OF MOTIONS TO DISMISS. would have ordered it to be so dismissed, and the defendant, al- thoiigli served with notice, does not appear to oppose the motion.^ And so strictly does the Court adhere to tiiis rule, that, in Fidelle V. Evaus,^ where a written agreement had been entered into be- tween the plaintiff and the defendants to settle the suit, part of which agreement was, that the plaintiff's bill should be dismissed without costs ; a positive order for such dismissal was refused, but the plaintiff had an order to dismiss without costs ufiless cause should be shown.^ But, notwithstanding the statute above referred to, a plaintiff, where he has been admitted to sue in formd pauperis, may move to dismiss his bill without costs, except in cases in which his ad- mission in formd pauperis has taken place subsequently to the filing of the bill.^ And where a defendant, by his own act, has rendered it impossible for the plaintiff to attain the object of his suit ; e. g\, by surrendering a lease, to obtain an assignment of which is the object of the suit, and absconds ; the Court will per- mit the bill to be dismissed without costs.^ Or where the suit is rendered nugatory by the subsequent passing of an Act of Parlia- ment, or by the reversal of a case on the authority of which the bill was filed, or by any matter subsequent.^ This, however, is an exception to the general rule above laid down. The course of proceeding to obtain the dismissal of the suit by a plaintiff who disavows the suit, has been before pointed out.'^ It seems, however, that, even when the suit is not disavowed, one co- ^ Anon. 1 Ves. jr. 140. - 1 Cox, 27 ; 1 Bro. C. C. 267, S. C. ^ Sir L. Sliadwell refused to dismiss a bill without eosts, on a motion made by the defendant pursuant to an agreement, unless upon the consent of the plaintiff's counsel given in Court. Ex relatione of E. D. Colville, Registrar. * Ante, p. 39. This motion must not be ex parte ; Parkinson v. Hanbury, 4 De G. Mac. & Gor. 508. AVhere an executor or administrator has commenced a wrong suit by mistake, or has ascertained, that it would be useless to proceed, in consequence of facts subse(^uently discovered, he will be permitted to discontinue without payment of costs. Arnoux v. Steinbrenner, 1 Paige, 82. ^ Knox V. Brown, 2 Bro. C. C. 186 ; 1 Cox, 359, S. C. But not where the object of the suit has been defeated by the plaintifi''s own act or procurement, llammersley v. Barker, 2 Paige, 372. * Robinson v. Rosher, 1 Y. & C. C. C. 7 ; Sutton Harbor Company v. Hitch- ens, 15 Bear. 161 ; 1 De G. Mac. & Gor. 161. The defendant will, in such cases, have the costs of the motion to dismiss. ^ Ante, p. 307. ON THE PART OF THE PLAINTIFF. 797 plaintiff may dismiss a bill with costs, as far as concerns himself; and it is said that he may do so on motion of course.^ But this does not appear to be in conformity with the modern practice ; for, in Ilolkirk v. Holkirk,^ it is stated, that counsel appeared, and that the Court refused to make an order for such dismissal, unless upon terms framed so as to protect the other plaintiffs in the suit from injury.^ With respect to what will be considered such an injury to tlie other plaintiffs as will prevent the Court from dismissing the bill on the application of one plaintiff, it is to be observed, that the mere circumstance l^iat the rights of the plaintiff applying to be dismissed are concurrent with those of the plaintiffs who remain, will not be a sufficient reason for refusing the motion, since any defect which his withdrawal may make in the record may be sup- plied by making him a defendant by amendment. The objection in Holkirk v. Holkirk* arose from the circumstance that one of the plaintiffs applying to be dismissed was resident in France, which might have been difficult of proof, and the Court, therefore, refused to make the order, unless the plaintiff, who was applying to dismiss, would undertake to put in his answer to the bill, when amended, within a fortnight after filing the amended bill, and also unless the defendant already on the record would undertake not to object, at the hearing, that it was not proved that the other plaintiff was out of the jurisdiction. A plaintiff may in general move to dismiss his own bill, with 1 Bathew V. Needham, Prac. Reg. 179 ; Langdale v. Langdale, 13 Ves. 167. 2 4 Mad. 51. 3 See Muldrow v. Du Bose, 2 Hill Ch. 375, 377. One creditor, who sues in behalf of all the creditors of an insolvent corporation, has no power to discontinue, the suit being once instituted as a remedy for all. Atlas Bank v. Nahant.Bank, 23 Pick, 480. So where a bill has been filed by one of several legatees, for his share of a legacy, against the executors and other legatees, and an interlocutory decree has been made establishing the right of the legatees to recover, — the plaintiff cannot after such decree, dismiss his bill to the prejudice of the legatees who are defendants, without their consent ; and if such order of dismissal be made, it will be vacated and set aside, except so far as it respects the plaintiff; and the interlocutory decree, and the Master's report thereon, will be deemed valid and effectual so far as it respects the other legatees, who may file a supplemental bill, and obtain the benefit of the said decree, without prejudice from the order of dis- missal. Collins u. Taylor, 3 Green Ch. 163. The order of dismissal was vacated in this case three years after the date of the order. * Ubi supra. See Bank v. Rose, 1 Rich. Ch. 292. 67* 798 OF MOTIONS TO DISMISS. costs, as a matter of course, at any time before the decree.^ Thus, in the case of Curtis v. Lloyd ,2 after the cause had been called on for liearing, and had stood over at the request of counsel, the plaintiff obtained, as of course, 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, observing " that he could not see why a plaintiff should be in a worse situation, because he informs the Court that he does not in- tend to proceed with the hearing of his cause, than if he made de- fault." But after a general demurrer to a bill has been overruled on argument, it appears that the plaintiff is fiot entitled to an or- der of course dismissing his bill with costs.^ After a decree,^ however, the Court will not suffer a plaintiff to dismiss his own bill, unless upon consent ; ^ for all parties are in- terested in a decree, and any party may take such steps as he may be advised to have the effect of it.^ It is to be nevertheless observed, that if, 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 con- science of the Court prefatory to its giving judgment.^ If, how- ever, the issue has been tried, and determined in favor of the ^ It is a matter of course to permit the plaintiff" to dismiss the bill at any time before decree, upon payment of costs, but the order for such leave is conditional, and the suit not absolutely discontinued so as to authorize the filing a new bill, till the costs of the first suit are paid. Cummins v. Bennett, 8 Paige, 79. See Thomas v. Thomas, 3 Litt. 9 ; Bassard v. Lester, 2 McCord Ch. 421 ; Smith v. Smith, 2 Blackf 232 ; Simpson v. Brewster, 9 Paige, 245 ; Elderkin v. Fitch, 2 Carter (Ind.), 90. After a voluntary dismissal of a bill by the plaintiff, he will not be allowed to reinstate it. Orphan Asylum u. McCartee, 1 Hopk. 372. 2 4 M. & C. 194. » Cooper V. Lewis, 2 Ph. 1 78. * See Clarkson v. Scrogins, 2 Mour. 52. After an order to account, and report made, the plaintiff cannot dismiss on payment of costs. Bethia v. M'Kay, Cheves Ch. Ca. 93. See also Hall v. M'Pherson, 3 Bland, 529. But see Bassard v. Lester, 2 M'Cord Ch. 421. A bill by trustees to marshal assets and call in cred- itors, after a decree made directing money to be paid, and creditors' claims estab- lished, will not be dismissed at the instance of one of the plaintiffs, his co-plaintiff and the creditors objecting. Muldrow v. Du Bose, 2 Hill Ch. 375, 377. See Jones V. Lansing, 7 Paige, 583. * Cooper V. Lewis, 2 Ph. 178 ; and see Guilbert v. Hawles, 1 Cha. Ca. 40 ; Car- rington v: Holly, 1 Dick. 281. "''ibid. ^ Ibid. FOR WANT OF PROSECUTION. 799 defendant, the plaintiff canjiot move to dismiss, because the de- fendant may have it set down on the Equity reserved, in order to obtain a formal dismissal of the bill, so as to enrol it as a final judgment, and thereby make it pleadable.^ By the old practice, a plaintiff obtaining an order to dismiss his own bill at any time before decree, was not prevented thereby from filing a new bill for the same object at any subsequent time.'-^ But this privilege having given room for oppression as against the de- fendant, the 117th Order of May, 1845, provided, " That if the plaintiff, after the cause is set down' to be heard, causes the bill to be dismissed on his' own application, or if the cause is called on to be heard in Court, and the plaintiff makes default, and by reason thereof the bill is dismissed, then and in such case such dismissal is, unless the Court otherwise orders, to be equivalent to a dismis- sal on the merits, and may be pleaded in bar to another suit for the same matter." Section II. \ For want of Prosecution. The time at which a defendant may move to dismiss the plain- tiff's bill for want of prosecution is now determined, partly by the 27th section of the Chancery Amendment Act, which applies to defendants not answering and not required to answer the bill, and partly as to other defendants by the Orders of May, 1845, the * Cooper V. Lewis, 2 Ph. 1 78 ; and see Guilbert v. Hawles, 1 Cha. Ca. 40 ; Car- rington v. Holly, 1 Dick. 281. * See Cummins v. Bennett, 8 Paige, 79. As to the dismissal of bills without prejudice for want of necessary parties, see ante, chap. 5, pp. 287, 288, 289, in notes. Courts of Equity adopt and act upon the principle, which prevails at law, that where a suit has been voluntarily discontinued by a plaintiff, or through the plaintiff's negligence or default, and a new suit is brought for the same cause of action, or where a new suit is brought to try the same question over again, the second suit will be ordered to be stayed until the costs of the first suit are paid. Sears v. Jackson, 3 Stockt. (N. J.) 45. But the reason for this course of practice does not apply when the cause of abatement of the suit is an act of God, and not an act within the control of the party. Sears v. Jackson, supra. And the Court will riot act upon this principle, unless in the fii'st suit the party was legally liable for the costs. Sears v. Jackson, supra. 800 OF MOTIONS TO DISMISS. 114th of which directs, that "Any defeiidaiit may, upon notice,^ move the Court that the bill may be dismissed with costs for want of prosecution, and the Court may order accordingly. 1. " If the plaintiff, having no order to enlarge the time, does not obtain and serve an order for leave to amend the bill, and does not flic a replication,^ or set down the cause to be heard on bill and answer, within four weeks after the answer, or the last of the an- swers, is found or deemed to be sufficient, or after the filing of a traversing note ; or, 2. " If the plaintiff, having undertaken to reply to a plea to the ■whole bill, does not file his replication within four weeks after the date of his undertaking ; or, 3. " If the plaintiff, having obtained no order to enlarge the time, does not amend the bill within fourteen days after the date of the order for leave to amend ; or, 4. " If the plaintiff, having obtained no order to enlarge the time, does not set down the cause to be heard, and obtain and serve a subpoena to hear judgment within four weeks after publi- cation has passed." It is now determined that the term " last answer " in this Order means the last answer of the particular defendant making the mo- tion to dismiss.^ , It follows immediately from this Order, and it is, moreover, ex- pressly directed by the 16th Order, Art. 37, that " The plaintiff not obtaining an order for leave to amend his bill, must either file his replication, or set down the cause to be heard on bill and an- swer, within four weeks after the last answer is deemed or found sufficient. Otherwise any defendant may move to dismiss the bill for want of prosecution." * The 115th of the same Orders directs, that " Where the plain- tiff has, after answer, amended his bill without requiring an an- swer to the amendments, any defendant may upon notice move to dismiss the bill with costs for want of prosecution, if the plaintiff, having obtained no order to enlarge the time, does not file the rep- ^ See Hoxey v. Carey, 12 Georgia, 534. A rule to speed the cause should pre- cede a motion to dismiss for want of prosecution. Dixon v. Rutherford, 26 Geor- gia, 153. * See 66th Equity Rule of the United States Courts ; and Rule 15 of the Keg. of Prac. in Chanc. Mass. ' Dalton V. Hayter, 7 Beav. 586 ; Sprye v. Rennell, 10 Beav. 351. * See Rule 15 of the Rules for Practice in Chancery in Mass. FOR WANT OF PROSECUTION. 801 lication or set down the cause to be heard on bill and answer, withm the times following, viz. : — 1. " Within fourteen days after service of notice of the amend- ment of the bill, in cases where the defendant docs not desire to answer the amendments. 2. " Within fourteen days after the Master's refusal to allow further time, in cases where the defendant desiring to answer has not put in his answer within eight days after the service of notice of the amendment of the bill, and the Master has refused to allow further time. 3. " Within fourteen days after the filing of the answer, in cases where the defendant has put in an answer to the amendment, un- less the plaintiff has, within such fourteen days, obtained from the Court special order for leave to re-amend the bill." The requisitions of this Order are further carried out by the 16th Order, Art. 39, which directs, "That where the plaintiff amends his bill, without requiring an answer to the amendments, and no answer is put in thereto, and no warrant for further time to answer the same is served within eight days after service of the notice of the amendment of such bill, the plaintiff is, after the ex- piration of such eight days, but within fourteen days from the time of such service, either to file his replication or to set down the cause to be heard upon bill and answer. Otherwise any defendant may move to dismiss the bill for want of prosecution." And the, 40th Art. directs, "Where the plaintiff amends his bills without requiring an answer to the amendments, and a de- fendant, within eight days after the service of the notice of the filing of the amended bill, serves a warrant for further time to answer the amendments, but the Master refuses to grant such fur- ther time, the plaintiff is, within fourteen days after such refusal, either to file his replication, or to set down the cause to be heard on bill and answer." Otherwise any defendant may move to dismiss the bill for want of prosecution. And the 41st Art. directs, that " If a defendant puts in an an- swer to amendments to which the plaintiff has not required an answer, the plaintiff must, within fourteen days after the filing of such answer, either file his replication, or set down the cause to be heard on bill and answer, unless in the mean time he obtains from the Court a special order for leave to except to such answer or to amend the bill." 802 OF MOTIONS TO DISMISS. Otherwise any defendant may move to dismiss the bill for want of prosecution. By the 14th Order of May, 1845, Art. 4, the vacations are not to be reckoned in the computation of the times for filing replica- tions, or setting down causes under the directions of Art. 41 of Order IG. By the 118th Order, "A defendant is not to be at liberty to move to dismiss a bill for want of prosecution until after the expi- ration of the time within which a plaintiff may obtain an order to amend such bill." It has before ^ been stated, that the plaintiff has four weeks after the last answer of the several defendants is deemed suffi- cient, during which he may obtain an order as of course to amend his bill ; and in the computation of this time vacations are not included. As, however, the term " last answer," with respect to the order for amending bills, means the last answer of all the defendants,^ the period allowed for amending a bill is often different from the period at the expiration of which a defendant may move to dis- miss the bill. To remedy inconveniences arising from this dis- crepancy in the two periods, an Order issued on the 13th of April, 1847 : " The plaintiff is not to obtain an order of course for leave to amend his bill after a defendant, being entitled to move, has served a notice of motion to dismiss the bill for want of prosecu- tion." If within the time allowed the plaintiff for the amendment of his bill an order for that purpose be obtained, and if accordingly the bill be duly amended, and require a further answer, the de- fendant cannot move to dismiss the bill for want of prosecution until four weeks from the expiration of the time when his last an- swer to the amended bill has been deemed sufficient, except upon the same contingencies mentioned in the 114th Order, with respect to answers to original bills. If the plaintiff amend his bill without requiring a further an- swer from the defendant, the times at which, under different cir- cumstances, the defendant may move to dismiss the bill for want of prosecution, are, as we have seen, expressly regulated by the 115th Order, and by the 39th and following Arts, of the 16th Order. ' Ante, p. 417. * Collett V. Preston, 3 Mac. & Gor. 432 ; ante, p. 419. FOR WANT OF PROSECUTION. 803 In addition to the regulations of these Orders, which still re- main in force, and are applicable to defendants from whom an an- swer is required or will put in an answer, the 15 & 16 Vict. c. 86, s. 27, has enacted, that " When a defendant to a suit in the said Court commenced by bill shall not have been required to answer, and shall not have answered the same, such defendant shall be at liberty to move to dismiss the bill for want of prosecution at such times, and under such circumstances, as shall be in that behalf prescribed by any Order of the Lord Chancellor." An Order 1 has accordingly issued, declaring "That a defend- ant to a suit commenced by bill, who shall not have been required to answer the bill, and shall not have answered the same, shall be at liberty to apply for an order to dismiss the bill for want of pros- ecution, at any time after the expiration of three months from the time of his appearance, unless a motion for a decree or decretal order shall have been set down in the mean time, or the cause shall have been set down to be heard ; and the Court may, upon such application, if it shall think fit, make an order dismissing the bill, or make such other order and impose such terms as may ap- pear just and reasonable." It will be observed that the right of a defendant to move to dismiss depends in all cases upon the proceedings of the plaintiff relative to the particular defendant making the motion, and not to the general proceedings in the cause as to other defendants. Thus a defendant from whom an answer is required may move to dis- miss within a certain period after his answer is deemed sufficient, — a defendant from whom no answer is required within a certain period after his appearance. The form of order to be made upon such a motion is however within the discretion of the Court, which will of course be guided by the conduct of the cause relative to all the defendants. Thus a defendant, not required to answer, may make a motion to dismiss three months from his appearance, with- out regard to the plaintiff having filed a replication or gone into evidence with regard to other defendants.^ Under such circum- stances the court will extend the time for setting down the cause, or make such other order as will prevent the plaintiff being preju- diced by the case of the particular defendant. It appears under the first contingency of the 114th Order, that ^ 29th August, 1852. * See Semmes v. Mott, 27 Georgia, 92. 804 OF MOTIONS TO DISMISS. the fact of the plaintiff obtaining and serving an order for leave to amend the bill will preclude the defendant from moving to dis- miss. This practice has always prevailed. It has, moreover, been decided, that an order to amend is in time if drawn up and served before the motion to dismiss is actually made, although after no- tice of the motion served. But in such a case, and in others where a defendant's titJe to dismiss is intercepted by a step taken by the plaintiff between the notice of motion and its being heard, the plaintiff has to pay the costs of the defendant's application to dismiss the bill.^ It has always been a general rule, that if notice of motion to dismiss for want of prosecution be given for too early a day, 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.^ We have seen, that under the Orders of 1845, the fact of the plaintiff filing a replication, or obtaining and serving an order to amend within four weeks after the sufficiency of the last answer, has the effect of precluding a defendant from moving to dismiss the bill for want of prosecution. Under the last-mentioned Order, the motion to dismiss the i)ill was made upon notice ; and it has been decided that 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 filed a repli- cation, or served an order to amend the bill before the hearing of the motion, the defendant's right would be intercepted, and the plaintiff would 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 dismis- sal ; and even though the defendant has had notice that the plain- * Waller v. Pedlington, 4 Beav. 1 24. * De Geneve v. Hannam, 1 R. & M. 494. ' Anon. 15 Ves. 174. A bill cannot be dismissed for foil ure to prosecute, if the defendants have caused or acquiesced in the delay. Dixon v. Rutherford, 26 Georgia, 153. * Waller v. Pedlington, 4 Beav. 124. FOR WANT OF PROSECUTION. 805 tiff, by taking a step in the cause, has prevented any order being made upon the motion to dismiss, yet where the plaintiff had not tendered the costs of preparing and serving the notice uf motion, it was held, that the defendant had a right to bring his motion be- fore the Court, for the purpose of obtaining his costs. ^ It may be observed, that a replication, filed even on the same day that an order to dismiss the bill for want of prosecution was obtained, would have precedence of the order to dismiss, and ren- der it irregular.^ Under the former practice, it was settled that an injunction would riot prevent the defendant from moving to dismiss for want of prosecution ;^ and even the obtaining an injunction, upon mer- its confessed in the answer, was not such a proceeding in the cause as saved a plaintiff from having his bill dismissed.* The same was also held of showing cause, successfully, against dissolving an injunction ; ^ and an order to dismiss a bill for want of prosecu- tion was held to be regular, although made after a notice had been given by the defendant of a motion to dissolve an injunction, which motion was not made, in consequence of the state of business in the Court.^ It may be observed, that there does not seem to be anything, in the recent orders to prevent these decisions still being appli- cable. There was one case, however, in which an order made upon an interlocutory application was 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 performance of a contract, and the title only being in dispute, a reference had been ' Attorney-General v. Cooper, 9 Sim. 379. * Reynold v. Nelson, 5 Mad. 60. The filing of a replication after notice given of a motion to dismiss the bill for want thereof, is good cause against the motion ; but it will be allowed only on payment of costs. Griswold v. Inman, 1 Hopk. 86. Where a cause is at issue as to one of the defendants, by filing a replication to his answer, and the plaintiff has neglected to proceed against the other parties so that such defendant cannot proceed to examine witnesses and close the proofs, he may move to dismiss the plaintiff's bill for want of prosecution. Vermilyea v. Odell, 4 Paige, 121 ; S. C. 1 Edw. Ch. 617; Whitney?;. Mayor, &c. of New York, 1 Paige, 548 ; Hastings v. Palmer, 1 Clarke, 52. » Day V. Snee, 3 V. & B. 170 ; James v. Biou, 3 Swanst. 234. * Bliss V. Collins, 2 Mer. 62, cited. ^ Earl of Warwick v. Duke of Beaufort, 1 Cox, 111. * Farquharson v. Pitcher, 3 Russ. 383. VOL. I. 68 806 OF MOTIONS TO DISMISS. made, upon motion, to inquire into the title, upon which no report had been made.^ In such case the order being in the nature of a decree, made upon the hearing of the cause, prevented the dismis- sal of the bill,2 and the principle of the case seems to apply to the present practice. An order to dismiss a bill can only be drawn up on the produc- tion of the Record and Writ Clerk's certificate of the proceedings in the cause, for the purpose of showing, that, since the answer was filed, no further proceedings have been had. This certificate ought to be produced in Court at the time of the motion being made. Tlie Registrar will not draw up the order until he sees that the certificate has been granted and properly filed.^ Some- times the certificate has been applied for, and obtained, after the order has been pronounced by the Court ; and, conseqiiently, it bore date subsequent to the date of the order (which, although drawn up and entered afterwards, is always dated on the day that it was pronounced by the Court). This practice never can have been regular, and probably would not now be permitted.^ With respect to the form of order to be made upon the hearing of the motion before the Court, it must be recollected that the plaintiff may, after notice of the motion, and before it is heard, anticipate its effect by filing a replication, or obtaining an order to amend. If the plaintiflP adopts either of these courses, and also tenders the costs of the motion, he will effectually stop the mo- tion. If he does not tender the costs, the defendant may still bring on the motion for the purpose of obtaining these costs.^ It must be recollected that the order to amend must be obtained upon a special application, and not by an order of course.^ Should the plaintiff not adopt either of these two courses he must appear on the motion, and submit to such an order, or enter upon such an undertaking as the Court may direct. The Court, upon the hearing of the motion, may give the plain- tiff farther time, and make the costs of the motion to be costs in the cause ; or it may make the plaintiff pay the costs, and enter 1 Biscoe V. Brett, 2 Ves. & B. 377. ^ Ibid. » Wills V. Pugh, 10 Ves. 402, 403. * Freeston v. Claydon, 17 Jur. 4 75. * Corry v. Curlewis, 8 Beav. 606. With respect to the amount of costs, see Wright V. Anger, 6 Hare, 109; Piper v. Gillaus, 11 Sim. 282. « Order 13, April, 1847, ante, p. 802. FOR WANT OF PROSECUTION. 807 into an undertaking to file a replication or amend the bill within a limited period, or the Court may accede to the motion, and dis- miss the bill. As we have before seen, upon a dismissal of the bill, the plaintiff will, except under very special circumstances, have to pay the taxed costs.^ It may be observed here, that, on bills to perpetuate testimony, a somewhat different practice has prevailed. In Beavan v. Car- penter,^ a cause of this kind, a motion to dismiss before replica- tion, was refused ; but Sir L. Shadwell made an order, that the plaintiff should file a replication forthwith, and proceed to the ex- amination of his witnesses, as prayed by his bill, and procure such examination to be completed on or before a certain day ; and that, in default thereof, he should pay to the defendant his costs of the suit. And in a case where the plaintiff had filed a replication and did not proceed further, a motion to dismiss the bill was refused ; but it seems that, under such circumstances, an order may be ob- tained for the plaintiff to proceed to an examination of his wit- nesses, and procure such examination to be completed before a certain day, or in default thereof that he may pay the defendant's costs of the suit.^ It will be recollected* that a defendant not required to answer, and not answering, can now move to dismiss three months after his appearance, even after a replication filed by the plaintiff; but it does not appear that a defendant, who has answered, can now move to dismiss after a replication has been filed, for after a decree or decretal order has been made a bill cannot be dismissed for want of prosecution. It will be recollected, that the fourth contingency^ upon which the defendant is enabled to dismiss under the 114th Order of May, 1845, is, " If the plaintiff, having obtained no order to enlarge the time, does not set down the cause to be heard, and obtain and serve a subposna to hear judgment within four weeks after publi- cation." By the recent change in the practice, publication has been abol- ished, but probably the same right will be deemed to exist four weeks after the closing of the evidence. ^ Ante, p. 795. ^ 11 Sim. 22. * Wright I'. Tatham, 2 Sim. 459 ; Barham v. Lingman, there cited. * Ante, p. 803. ' See ante, p. 800; and 16th Order, Art. 45. 808 OF MOTIONS TO DISMISS. In the case of Black v. Coliiaghi,i a suit for winding up the affairs of the partnership between the plaintiff and defendants, where an order had been made by consent on motion for taking the accounts of the partnership, but had not been drawn up ; Sir Ij. Shadwell said, that the order which had been pronounced was a decretal order, and though it had not been drawn up yet, either party was at liberty to draw it up ; that, an order in the nature of a decree having been made in the cause, the bill could not be dismissed. Moreover, after a decree has been made of such a kind as that other persons besides the parties upon the record are interested in the prosecution of it, neither the plaintiff nor defendant, on the consent of the other, can obtain an order for the dismissal of the bill ; thus, where a plaintiff sues on behalf of himself and all other persons of the same class, although he acts upon his own mere motion, and retains the absolute dominion of the suit until the decree, and may dismiss the bill at his pleasure, yet after a decree, he cannot by his conduct deprive other persons of the same class of the benefit of the decree, if they think fit 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 his own, and that after a decree no second suit is permitted." ^ Under the stat. 4 Ann. c. 16, s. 23, upon the defendant's dis- missing a bill for want of prosecution, the plaintiff shall pay to the defendant or defendants his or their full costs, to be taxed by the Master.^ The rule laid down, by the above enactment, is followed in all cases of a bill dismissed for want of prosecution, except those where the plaintiff has become a bankrupt,^ or has filed his bill in formd pauperis,^ in which cases, the order for dismissal will be made without directing the plaintiff to pay the costs. 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 dismissed, the » 9 Sim. 411. >= Sir J. Leach, V. C. in Handford v. Storie, 2 S. & S. 198. ^ Ante, p. 795. * Ante, p. 61. * Ante, p. 796. « Ante, p. 684 ; Story Eq. PI. § 793 ; Mitford Eq. PI. by Jeremy, 238. See Byrne v. Frese, 2 Moll. 157. When a bill is dismissed for want of prosecution, it operates as a discontinuance, and is no more than a nonsuit, at law, and does not prevent the bringing of a new bill. M'Broom v. Sommerville, 2 Stewart, 515 ; FOR WANT OF PROSECUTION. 809 plaintiff files another bill for the same purpose, the Court will sus- pend 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 plaintiff filed a new bill against his executor for the same object, Sir L. Shadwell ordered the proceedings on the new bill to be stayed until the plaintiff had paid the executor the costs of the dismissed suit.^ 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 step can be taken in it, except such as may be necessary for carryijig into effect the order of dismissal.^ Tlierefore, where a defendant obtained an order to dismiss a bill for want of prosecution, without having made a motion of which h'e had given notice, it was held, that the defendant could not af- terwards obtain the costs of the motion, as an abandoned motion. A bill may, however, be dismissed against one defendant, with- out being dismissed against the others.* Although a bill which has been dismissed for want of prosecu- tion is in general so effectually out of Court, that no motion or proceeding can be had in the cause, except for the purpose of car- rying the order of dismissal into effect; it seems that the Court will, under special circumstances, entertain a motion to restore it.^ It is not, however, the ordinary course of the Court to restore a bill which has once been dismissed. It must be shown that sub- stantial justice requires that it should be done, and then, upon the particular circumstances, the Court will make the order.^ And there is no instance to be found, in which the Court has restored a bill which has been regularly dismissed, for the mere purpose of agitating the question of costs.'^ Porter v. Vaughn, 26 Vermont, (3 Deane,) 624. The dismissal absolutely of a bill by a Court which had no jurisdiction of the case, is no bar to another suit. Lancaster v. Lair, 1 Dana, 109. ' See Cummins v. Bennett, 8 Paige, 79 ; Rathbone v. Eckford, cited 1 Hoff. Ch. Pr. 328, note (1) ; Simpson v. Brewster, 9 Paige, 245. ^ Spires v. Sevvell, 5 Sim. 193. ^ See Popham v. Baldwin, 2 L-ish Eq. 356. * Lautour v. Holcombe, 11 Sim. 71. ^ Jackson v. Purnell, 16 Ves. 204 ; For. Rom. 112. * Hannam v. South London Waterworks Company, 2 Mer. 63. ' Ibid. 68* 810 OF MOTIONS TO DISMISS. The method by which the restoration of a cause after a dismis- sal for want of prosecution is to be cifectcd, appears to be by ob- taining an order to discharge the order dismissing the bill, which can be procured only upon the terms of the plaintiff's paying the costs of obtaining that order, and of the application for the order to discharge it. In Jackson v. Purnell,^ the order appears to have been made upon the plaintiff's undertaking to amend, within a week, amending the office copy, and not requiring any further an- swer, and to reply forthwith, and speed his cause to a hearing, &c.^ It is to be noticed, that an order of this description is quite dis- tinct from one to discharge an order to dismiss for irregularity, and that the circumstance of an order of that description having been applied for, and refused, will not prevent the plaintiff from moving to have his bill restored upon special circumstances, in the manner above stated.^ Section III. When the Suit Abates, or becomes otherwise Defective. Besides the ordinary case of the defendant's applying to dismiss the plaintiff's bill for want of prosecution, there are other occa- sions upon which the defendant may make a motion of a some- what similar description, as where a sole plaintiff becomes bank- rupt or dies, or being a female marries. Considerable difference of opinion existed at one time amongst the Judges of the Court, as to the question, whether, in a suit which had become abated by the death of a sole plaintiff, there was any jurisdiction in the Court to order, that his representatives should revive the suit within a limited time, or that, in default of their so doing, the bill should be dismissed. The 63d Order of May, 1845, put an end to much of the difficulty of the subject, by directing that, " In cases where a suit abates by the death of a sole plaintiff, the Court, upon motion of any defendant, made on 1 16 Ves. 204. "^ See 3 V. & B. 1, n. S. C. The mere filing of a replication is not a compli- ance with a rule to speed the cause. West v. Paige, 1 Stockt. (N. J.) 203. ^ Hannam v. South London Waterworks Company, ubi supra. WHEN SUIT ABATES, OR BECOMES DEFECTIVE. 811 notice served on the legal personal representative of the deceased plaintiff, may order that such legal representative do revive the suit within a limited time, or that the bill be dismissed.^ The order, it will be observed, applies only to the case of a sole plaintiff, and only to an abatement caused by death ; it does not extend to the case of one only of a plurality of plaintiffs dying, leaving a co-plaintiff or co-plaintiffs surviving, nor to a case in which the abatement is caused by the death of a defendant, nor to one when it is caused by the marriage of a sole female plaintiff; moreover, the order does not apply to any defect in the nature of abatement, caused by the bankruptcy or insolvency of either the plaintiff or the defendant. In these several cases the practice has still to be determined by the cases, and the observations to be found in the judgments that have been given upon the subject on different occasions. The first case which will be considered, is that where the abate- ment is caused by the death of one of several co-plaintiffs. In Chichester v. Hunter,^ one of two co-plaintiffs died after replica- tion, and after the cause had been set down for hearing. Under these circumstances, upon an application by a defendant. Lord Langdale, M. R., ordered that the surviving plaintiff should re- vive the suit within a fortnight, or in default thereof, that the plaintiff's bill should stand dismissed out of Court, as against the defendant who applied, with costs. And in Adamson v. Hall,^ where one of several co-plaintiffs died before an answer was filed, so that the defendant could neither put in an answer, nor move to dismiss the bill for want of prosecution. Lord Eldon, upon appeal, overruling the decision of Sir J. Leach, V. C, " thought that the plaintiff must submit to .have the bill dismissed, or undertake to revive." * ^ In Massachusetts, " where any party shall die, on the same being suggested in writing, and entered on the docket, it shall be lawful for the clerk, during va- cation, upon application, to issue process to bring into Court the representative of such deceased party." Rule 7, of the Rules for Practice in Chancery. See also 56th and 57th Equity Rule of the United States Courts. 2 3 Beav. 491. ^ ^urn. & R. 258 ; and 1 S. & S. 249. * See Pells v. 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-plaintiffs, it is at the election of the surviving co-plaintiffs, whether they will revive the suit. The Court will limit the time within which they shall make that election. And if they do not revive the suit within the time limited, the Court will order that they be precluded from any further prosecution of it. 812 OF MOTIONS TO DISMISS. From the cases of Johnson v. Horlock, and Wilkinson v. Charles- worth, it would seem that in the case of the marriage of a sole female plaintiff, the defendant is entitled to move that the husband revive within a short time, or that the bill be dismissed with costs. Some doubt was expressed as to the authority of these cases by Sir J. Wigram, V. C, in Lee v. Lee,i but they seem to have been fol- lowed in the recent case of Saner v. Deaven,^ and therefore the practice may wow be considered settled, to the effect that upon the death of one plaintiff, leaving others surviving, or upon the mar- riage of a female plaintiff, the Court will make an order to dismiss the bill with or without costs, in the event of the plaintiffs upon the record not reviving within a limited time. It may be observed here, that in Altree v. Hordern,^ where, upon an abatement caused by the death of the plaintiiif, his executors filed an original bill in respect of the same matters, instead of reviving the former suit, Lord Langdale, M. K., made an order staying the proceedings in the second suit until the costs of the first had been paid. With respect to a case where the abatement has been caused by the death of the defendant and not of the plaintiff, it seems some- what doubtful whether it is optional to the plaintiff to proceed with the suit,* or on the other hand, whether tlie executor of the deceased defendant may move that the plaintiff do revive the suit within a limited time or that the bill may be dismissed.^ We have next to consider the case of the plaintiff becoming bankrupt, and thereby rendering the suit defective ; and the means by which, in such a case, the defendant may either get the bill dismissed or compel it to be prosecuted to a hearing. It has before been stated,*^ that the bankruptcy of a sole plaintiff does not strictly cause an abatement, although it renders the suit defective. The bankrupt plaintiff, however, is placed under an incapacity to prosecute the suit, and, by the non-prosecution of the suit for a cer- tain time, the defendant acquires a right to dismiss the bill. 1 1 Hare, G23. * 16 Beav. 30. * 6 Beav. 623. * Reeves v. Baker, 13 Beav. 115. * Burnell v. The Duke of Wellington, 6 Sim. 461 ; Norton v. White, 2 De G., Mac. & Gor. 678. So the survivors upon the death of one of several defendants may move that the plaintiff revive, or the bill be dismissed. Harrington v. Becker, 2 Barb. Ch. 647. ' Ante, p. 61. WHEN SUIT ABATES, OR BECOMES DEFECTIVE. 813 The ordinary order which is made upon the hankruptcy of the plaintiff before decree, is, that the bill be dismissed without costs, unless the assignees file a supplemental bill within three wccks.^ It does not seem clear at what period after the bankruptcy the de- fendant is entitled to move for an order of this nature. In the case of Whitmore v. Oxborrow,^ where the plaintiff did not become bankrupt till after decree, a motion was then made that the assignees of the plaintiff might, within a fortnight after notice of the motion, file a supplemental bill in the nature of a bill of revivor against the defendants, the assignees, or that the suit might be dismissed against them with costs ; and it was considered that such a motion was irregular after decree. Sir J. L. Knight Bruce, V. C, made a special order by which the assignees of the plaintiff were put to their election whether they would proceed in the suit in the name of the plaintiff; and in default of their so doing, the proceedings were ordered to be stayed until further or- der. And in the case of Hardy v. Dartnell,^ a similar order was made with respect to a trustee under the Act to facilitate*arrange- ments with creditors.^ The order to dismiss on occasions of abatement, or of the suit becoming defective, must not be confounded with an ordinary or- der 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. It seems a general rule that, after any abatement of a suit, or after suit having become defective by the bankruptcy of the plain- tiff, it is irregular to move for the ordinary order to dismiss the bill for want of prosecution. The distinction between the two orders is clearly exhibited by some observations of Sir J. Leach, V. C, in his judgment in Sharpe v. Hullett.^ " If," he observes, " when the plaintiff becomes bankrupt, it was permitted to the de- fendant to dismiss his bill for want of prosecution, it would neces- sarily subject the bankrupt to the payment of costs when he has no means, which is against the general rule of this Court as to bankrupts : and it might be attended with this further inconven- 1 Sharpe v. Hullett, 2 S. & S. 496. " 3 Col. 91. See also Clarke v. Tipping, 16 Beav. 12. » 4 De Gex & Sm. 568. * 7 & 8 Vict. c. 70. * 2 S. & S. 496. 81-4 OF MOTIONS TO DISMISS. ience, that the bill might be dismissed without the assignees know- ing the fact that such a bill was filed, and without any opportunity of judging, on their part, whether it would or would not be bene- ficial to the bankrupt's estate that the suit should be prosecuted. An order that the bill should be dismissed without costs, within a limited time, if the assignees do not think fit to file a supplemen- tal bill, obviates both these objections, provided the notice of mo- tion is served on the assignees." In Sellers v. Dawson,^ an ordinary order to dismiss for want of prosecution, obtained pending the bankruptcy of the plaintiff, was considered as so completely a nullity, as not to render an order for its discharge necessary. When, instead of the suit becoming defective by the bankruptcy of the plaintiff, it is the defendant who himself becomes bankrupt,, it seems that the defendant has been permitted, notwithstanding his bankruptcy, to dismiss the bill for want of prosecution, when the ordinary time for making such a motion has arrived ; but in such a cSse there is some doubt whether the order, if not prevent- ed by the plaintiff entering into an undertaking, would be made without costs, as there is nobody before the Court entitled to re- ceive them.2 Acting upon this principle, in the case of Blanchard V. Drew, Sir L. Shadvvell dismissed the bill without, costs upon the application of the defendant, who had become insolvent after the institution of the suit, and admitted the plaintiff to be a creditor in respect of the subject of the suit. It may be observed, that, in this case, the time had arrived at which an ordinary motion to dis- miss the bill with costs for want of prosecution, could be made. In the case, however, of Blackmore v. Smith,^ Lord Cottenham dismissed the bill with costs on the motion of the defendant, an uncertificated bankrupt. It seems, therefore, that in the event of the bankruptcy or in- solvency of the defendant, no special order to dismiss of a different nature from the order for dismissal for want of prosecution, can be made ; but the defendant is not precluded by his bankruptcy or insolvency from making the ordinary motion to dismiss for want of prosecution. The only question in such a case is, whether he is entitled as other defendants to receive his costs. » 2 Dick. 738 ; 2 Anstr. 458, n. ; and Boddy v. Kent, 1 Mer. 361. == Monteith v. Taylor, 9 Ves. 615. " 1 Mac. & G. 80. WHEN SUIT ABATES, OR BECOMES DEFECTIVE. 815 In Manson v. Burton,^ a motion seems to have been made by a bankrupt defendant for an order of a similar kind to that granted upon the bankrnptc)'' of a plaintiff, but was refused by Sir J. L. Knight Bruce, V. C, as a pure novelty. It must, however, be recollected that Sir L. Shadwell made an order on motion by the executor of a deceased defendant, that the plaintiff might revive the suit as against him within a month, or that the suit might be dismissed as against the defendant.^ Another gro-und which a defendant may have for applying to dismiss the bill, is where the plaintiff, after filing it, enters upon the land in question, or does anything of that nature without the leave of the Court ; in whicii case the defendant may move to have the bill dismissed, at least so far as relates to that matter, be- cause the plaintiff has, by his own act, taken upon himself to be the judge in his own case, and renounced the judgment of the Court.^ If the bill relates to any other matter, the plaintiff will be at liberty to proceed for so miich.* So, also, where the defend- ant is willing to give the plaintiff all he asks in the costs of the suit, a motion may be made to stay the proceedings.^ There are also several cases, in which, where there are two suits relating to the same subject-matter, the Court 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 friend, the Court will direct an inquiry as to which suit is most for his benefit ; and when that point is ascertained, will stay the proceedings in the other suit.'^ So, also, where two suits are instituted by creditors for the administration of the estate of the same deceased debtor, when the decree is obtained in one suit against the personal representative of the deceased, he may move to stay proceedings in the other. And in the case of Turner V. Dorgan,^ such an order was made, although the executrix was in contempt in the suit, the proceedings of which were stayed. » 1 Y. & C. 626. « Burnell v. The Duke of Wellington, 6 Sim. 461. * Prac. Reg. 180. See also Grafton v. Griffin, 1 R. & M. 336. * Prac. Reg. 180. ^ Darner v. Portarliiigton, 2 Ph. 30. * Rigby V. Strangways, 2 Ph. 177 ; Underwood v. Jee, 1 Mac. & Gor. 276. ~' See ante, p. 69. » 12 Shn. 504. 816 OF MOTIONS TO DISMISS. The decree made by Sir J. L. Knight Bruce, Y. C, in the case of Therry v, Henderson,^ exhibits the rights and duties of the par- ties interested in an estate, the administration of which is made the subject of two suits. In that case, immediately after the de- cree had been obtained in a suit instituted by residuary legatees for the general administration of the estate, a bill was filed by specific legatees for the payment of their legacies ; and upon the second suit coming on for hearing, his Honor observed, " that to some extent, more or less, each party was in the wrong. As soon as the second bill was filed, the executors or the residuary legatees ought to have applied to stay the proceedings in that suit, — they ought not to have let it come to a hearing ; on the other hand, the specific legatees ought not to have proceeded after they had notice of the former suit." The order made was, that the costs of the second suit, up to the time of putting in the last answer in that suit, should be paid as costs in the first suit ; but the costs of the second suit, after the last answer was put in, were to be paid out of the capital of the plaintiffs in the second suit. And in general, where two suits involve the same subject-matter and the same parties, and the frame of the two suits, and the rela- tive position of the two parties in each, is the same, if a decree be made in one suit, the Court will refuse to make a decree in the other. If, however, the frame of the second suit, and the position of the plaintiffs in it, are different from the frame of the first suit and the position of the plaintiffs in that suit, a second decree will be made. In such a case, Sir J. L. Knight Bruce, V. C, directed that the Master should have liberty to adopt the proceedings in the former suit ; and that, upon consent, both decrees might be prosecuted together, and one report made in both suits.^ 1 1 Y. & C. 481. « Godfrey v. Man, 1 Y. & C. 485 ; Gumming v. Slater, 1 Y. & C. 584. ^i^- uc SOUTHERN REGIONAL UBRARY FACILIT^ AA 000 742 671 i