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UNIVERSITY

OF CALIFORNIA

LOS ANGELES

LAW LIBRARY

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TREATISE

ON THE

PLEADI N G S

IN SUITS IN THE

COURT OF CHANCERY,

BY ENGLISH BILL.

BY

JOHN MITFORD, Esq. (NOW LORD REDESDALE.)

THE FOURTH EDITION,

WITH ADDITIONAL REFERENCES AND NOTES, BY

GEORGE JEREMY, Esq. of lincoln's-inn, barrister at law.

LOW DON:

J. & W. T. CLARKE,

LAW BOOKSELLERS AND PUBLISHERS,

PORTUGAL-STREET, LINCOLN's-INN.

1827.

T

Luke Hansard & Sons, near Lincoln's-Inn Fields.

[ "i ]

TO THE READER.

LORD REDESDALE having honoured me with that confidence which was necessary to my superintending a new edition of the following highly valuable work, I proposed to examine the authorities cited in the last edition of it, and to add the references to such new cases as might appear to me to elucidate the subject, a plan in which his Lordship was pleased to concur. In the ad- ditions accordingly made by way of note, I have endeavoured, for the most part, to confine myself to the mere citation of autho- rities, generally selecting those of the latest date ; although I have, in some instances

a 2

[ iv ]

where the decisions did not directty sustain or precisely apply to his Lordship's proposi- tions, but where, nevertheless, notice of them seemed material, made such remarks as were necessary to their introduction. In these respects I have been led into greater detail than was originally intended ; but it is hoped that the practical utility of the present publi- cation will be thereby increased. In refer- ring to the authorities, I have made the dis- tinction, which it is now usual to adopt, between decisions and dicta, by citing the name of the case in the one instance, and the page of the report in the other. I have also deemed it expedient to render the index more copious and precise. His Lordship has made some few additions and alterations in the text, but I have not been instrumental in with- drawing from the Profession any part of the work itself. And here I may be permitted to remark that it has been a subject of great interest to me, in the course of my inquiries, to perceive that this work, which in its out-

[ v ]

line and substance was the original treatise upon equity pleading, has, from the time of its first publication been so far the guide to subsequent decisions as to have rendered any material correction, or even qualification of the general principles explained in it, wholly unnecessary.

(jr. J.

l, New Square,

Lincoln's Inn.

a 3

[ vii ]

PREFACE

TO

THE THIRD EDITION.

THE materials from which the first edition of this Treatise was compiled were not very ample or satisfactory; consisting, principally, either of mere books of practice, or of reports of cases, generally short, and in some instances manifestly incorrect and inconsistent ; and the author had had little experience to enable him to supply the deficiencies of those mate- rials. The communication of information, and the assistance of experience, were ear- nestly solicited by the preface to that edition, but with little effect. Four-and-thirty years have since elapsed ; and when, at the distance of seven years from the first publication, the second edition was prepared for the press, such observations as had occurred to the author in practice, and such notes as he had collected, were the principal means of im- provement which he possessed ; and he was then too much engaged in business to give that attention to the subject which it required. Nearly eight-and-twenty years have since passed; and many volumes of reports have

a 4

Vlll PREFACE.

been published, and some treatises have ap- peared (particularly those by Mr. Fonblanque and Mr. Cooper), from which much assist- ance might have been derived. During the greater part of this period the author was not only unwilling to engage in the labour of preparing a new edition, but disabled, by various avocations, from attempting to make any important additions. Long absence from the bar, the consequent want of the habits of practice, age, the enjoyment of repose, and the indolence which that enjoyment too often produces, have increased his unwilling- ness to undertake a work of labour ; and that which is now offered is little more than a republication of the second edition, with references to some cases since reported ; a few additional notes of cases not reported ; some corrections of apparent errors ; and some extension of parts which appeared to have been most imperfectly treated in the former editions. It is therefore far from satisfactory to himself; and would not have been now given, if he had not been assured that even a republication of the last edition, with all its imperfections, was desired by the Profession .

IX

7

J

CONTENTS.

INTRODUCTION.

Of the extraordinary jurisdiction of the court of Chancery, and of the manner in which suits to that jurisdiction are instituted, defended, and brought to a decision -----.- I

r

I. Of Bills. Chap. I.

21.

r

Chap. I. Sect. I.

1. by

whom

l. On behalf of the crown and of those wh partake of it's preroga- , tive or claim its parti- I cular protection - 21 J

a

by the king's attor- ney general or other

officer -

- 21

by whom, andi against whom, a bill may be exhibited - 21

V,

2. against whom (

2. On behalf of bodies politic and corporate, and persons who do not partake of the preroga tive of the crown, and have no claim to it's par- ticular protection - - 24

1. Where the rights" of the crown, or of those who partake of it's pre- rogative, or claim it's particular protection, are concerned.

* I by them- ) selves

1. alone

2. under the pro- tection of others

'Bodies politic and corpo- rate, and all persons of full age, not being married wo- men, idiots, or lunatics, 24

"I. Infants - - - -

!. Married women

,3. Idiots and lunatics -

25 28

29

^against the king's attorney-general, or other proper officer - - 30

2. In all other cases

Chap. I. Sect. H.

I, Praying relief, 34. 37

[. Origi- nal bills,/ 33- 34- S 36.51.

j against all bodies politic and corporate, and all per-

\ sons, married women with their husbands, and

J idiots and lunatics with their committees - 30

A bill praying the decree of the court touching some right claimed by the plaintiff in opposi-

37 48

50

f1,

2. Not praying relicf,<j

34- 5 1 lo-

tion to the defendant 34.

A bill of interpleader ------ 34.

A certiorari bill ------- 34.

A bill to perpetuate the testimony of

witnesses

}

34-

A bill for discovery ------ 34.

5 » 53

Of the several( IT. Bills not original - 33, 34. 55 kinds and dis- tinctions of bills - - 33

(

A supplemental bill ----- 34. 61. 75

A bill of revivor ------ 35.69.76

A bill of revivor and supplement - 35. 70. 80

A cross bill 35. 80

III. Bills in the nature of original bills - - - - 33.35.80

A bill of review

A bill in nature of a bill of review - - A bill to impeach a decree on the"^ ground of fraud ------ -J 35- "

5. A bill to suspend or avoid the execuO

tion of a decree ------ -J

6. A bill to cany a decree into execution -

7. A bill in nature of a bill of revivor - 36. 71

8. A bill in nature of a supplemental"!

35-83 35-92

35-94 35-

95 97

V

bill - . . .) 36.72.98

CONTENTS.

I. Of Bills. Chap. I. — continued.

Chap. I.

Sec. III. Of the frame and end of the several kinds^ of bills, and of informations, 36

r.

r

1. Praying relief - 371

1. A bill praying the decree of the court touching some right claimed by the plaintiff in opposi- tion to the defendant -------37

I. Origi- nal bills, f 36

2. A bill of interpleader

48

3. A certiorari bill ---------50

^:

2. Not praying relief,

ft. A ief,5i<

(^2. A

1 . A bill to perpetuate the testimony of witnesses, 5 1 bill for discovery -------53

II. Bills not original

1. A supplemental bill ------ 61.75

55^2. A bill of revivor ------- 69.76

.3. A bill of revivor and supplement - - 70. 80

III. Bills in the nature of oriO ginal bills - - - -J

80

1 . Cross bill ---------- 80

2. Bill of review --------- 83

3. Bill in nature of a bill of review - - - 92

4. Bill to impeach a decree on the ground of

fraud

/

IV. Informations

90

5. Bill to suspend or avoid the execution of a

decree

6. Bill to carry a decree into execution - - 95

7. Bill in the nature of a bill of revivor - 71. 97

8. Bill in nature of a supplemental bill - 72. 98

'

Chap. II. Of defence to bills - - 102

•'

1. On behalf of the^

Chap. II. Sect. I. By whom a / tjve> or are uno"er its par suit may be de- fended - 1 02

crown, or of those who

I By the king's attorney-general, or partake of it's preroga- \

( other proper officer - - - 102

ticular protection - 102

k.

2. On behalf of bodies

1 . By themselves, 103-

politic and corporate, and of persons who do not partake of the pre- rogative of the crown, and have no claim to it's particular protec- tion- - - - - 103

Bodies politic and corporate, and all persons of full age, not being married women, idiots or lunatics - 103

2. Under protection of, or jointly with,, others - - 103

1. Infants - - - - 103

2. Idiots and lunatics, 103 .3. Married women - 104

CONTENTS.

XI

I. Of Bills. Chap. II.— continued.

r

r

Chap. II.

Sect. II.

Of the

nature of the

various

modes of

defence to a

bill - 106

Chap. II.

Sect. II.

Part I.

Demurrers,

106, 107

I. to original bills, 109

I. to re- lief, 1 1 0

I. That the subject is not

within the risdiction of a court of equity - 110

o

a 3

o 'S

= s

— 5

in m

tn Co

C3 .

0 £> g'3

Lo

II. That some other court of equity has the proper juris- diction - 110. 151

III. That the plaintiff is not en- titled to sue by reason of some per- sonal disability,

110. 153

IV. That he has no interest in the^ subject, or no title to institute a suit concerning it,

110. 154

V. That he has no right to call on the defendant con- cerning the subject,

110. 158

VI. That the de- fendant has not that interest in the sub- ject which can make him liable to the claims of the plain- tiff - - 110. 160

VII. That foi- some reason, found- ed on the substance of the case, the plaintiff is not in- titled to relief,

110. 163

1. Where the principles of law by which the or- dinary courts are guided give a right, but the^ powers of those courts are not suf- ficient to afford a complete remedy, 111, 112

1 .Where no remedy, or no complete remedy,! 12

a. Where remedy at- tempted is defeated by fraud or ac- cident, 127

2. Where the courts of ordi-

nary jurisdiction are made

instruments of injustice,

ill. 131

3. Where the principles of law

by which the ordinary courts are guided give no right, but upon the prin- ciples of universal justice the interference of the ju- dicial power is necessary to prevent a wrong, and the positive law is silent,

ill. 133

4. To remove impediments to

the fair decision of a ques- tion in other courts,

111.134

5. To provide for the safety of

property in dispute pend- ing a litigation - 111.135

6. To prevent assertion of

doubtful rights in a man- ner productive of irrepar- able injury - ill. 137

7. To prevent injury to a third

person by the doubtful title of others - - 112. 141

8. To put a bound to vexatious

and oppressive litigation, 112, 143

9. To compel a discovery.

112. 148

10. To preserve testimony,

112. 148

xil CONTENT S.

T. Of Bills. Chap. II.— continued.

II. to

dis- covery N 109.185

VIII. That the bill is deficient to answer the purposes of complete justice,

110. 163

IX. That distinct objects are con- founded in the same bill - 110. 181

I. That the case made by the bill is not such wherein a court of equity assumes a jurisdiction to compel a discovery --------185

II. That the plaintiff has no interest in the sub- ject, or no interest which intitles him to call on the defendant for a discovery ----- 185. 187

III. That the defendant has no interest in the subject to intitle the plaintiff to institute a suit against him, even for the purpose of discovery,

185. 188

IV. That there is no privity of title between the plaintiff and defendant, which can give the plaintiff a right to the discovery - - - - - 185.189

V. That the discovery, if obtained, cannot be material - 185.191

VI. That the situation of the defendant renders

(it improper for a court of equity to compel a discovery 185. 193

II. to

1. Bills of revivor and supplemental bills

2. Cross bills ---------

201 203

every 3- Bills of review, and bills in nature of bills of review,

other ( and bills to impeach a decree, or suspend or avoid it's

kind of execution ------------ m~ 203

4. Bills to carry a decree into execution ----- 206 201.206

5. Bills in the nature of bills of revivor, or of bills of ^ supplement -- --------__ 206

III. Of the frame of demurrers, and of the manner in which their validity may be determined - 208

CONTENTS.

Xlll

I. Of Bills. Chap. II.— continued.

/

Chap IT Sect. II. Part II. Pleas, 106. Ql8

1. to

original bills,22o

(\. to re- lief, 220

1. That the subject is not within the jurisdiction of a court of equity,

222

2. That some other court of equity, has the proper jurisdiction - 223

3. That the plaintiff is not intitled to sue by reason of\ some personal disability - 226

1. That the plaintiff is out-

lawed - - - - 226

2. Excommunicated - - 227

3. A popish recusant - 228

4. Attainted - - - - 228

5. An alien - - - - 229

6. Incapable of instituting a

suit alone - - - 229

4. That the plaintiff is not the person be pretends to be, or does not sustain the character he assumes --,--.---__ 230

5. That the plaintiff has no interest in the subject, or no right to institute a suit concerning it, 231

6. That he has no right to call on the defendant concerning it---------- 234

7. That the defendant is not the person he is alleged to be, or does not sustain the character he is alleged to bear ------- 234

8. That the defendant has not that interest in the subject which can make him liable to the de- mands of the plaintiff ------- 235

9. That for some reason founded on the sub-

1. Matters of re- cord, or as of re- cord in a court of equity, 236

stance of the J f

2. Matters of re

case, the plain- tiff is not in- titled to relief, 236

cord, or as of record in some court, not a court of equity L. 250

1. A decree or order - 237

2. Another suit .depending,246

1. A fine - 250

2. A recovery,

253

3. A judgment or sentence,

253

XIV

CONTENTS

I. Of Bills. Chap. II. — continued.

1. A stated account

2. An award - -

3. A release - -

- 259

- 260

- 261

3. Matters in pais, \ 4- A will or conveyance, 263

258.

5. Circumstances bringing a case within the protection of a statute - - - 265

V.

10. That supposing the plaintiff intitled to the

assistance of the court to assert a right, the defendant is equally intitled to the protection of the court to defend his possession - - 274

1 1. That the bill is deficient to answer the purposes of complete justice 280

f~l . That the plaintiff's case is not such as intitles a court of equity to assume a jurisdiction to compel a discovery in his favour ------ 282

2. That the plaintiff has no interest in the subject, or no interest which intitles him to call on the defendant for a discovery- ----.. 282

3. That the defendant has no interest in the subject to intitle the plaintiff to institute a suit against him, even for the purpose of discovery - - 283

2. todiscovery,28i^

1. Because the disco- very may subject the defendant to pains and penal- ties - - - - 284

2. Because it will sub- 4. That the situa- Ject nim to a forfeit-

tion of the de- ure " - 286

fendant renders it improper foJ 3- Because it would » betray the trust re-

a court of equity to compel a dis- covery - 284

posed in a coun- sel, attorney, or arbitrator - - 288

4. Because he is a pur- chaser for a valu- able consideration, without notice of the plaintiff's title, V. 288

CONTENTS.

XV

I. Of Bills. Chap. II. — continued.

2. to bills not ori- ginal, 288

3. to bills in the

nature of'

original

bills, 290

4. of mat- ters rela- tive to

> 1

*•*,

. To bills of revivor and supplemental bills - - 289

1. Cross bills 290

2. Bills of review, and bills in nature of bills of review,

and bills to impeach a decree, or suspend or avoid it's execution ------------ 291

3. Bills to carry decrees into execution - - - - 293

4. Bills in the nature of bills of revivor, or of supplemental V bills 293

1. The nature of pleas in general 1 . Their form ------

294 300

pleas in \ ^ The manner m wnjch they are offered to the court, 30 1 general, \ 290 I 4. The manner in which their validity is decided -301

Chap. II. Sect. II. Part III.

1 . Answers\ and dis- claimers, 1 06. 306

1. The general nature of answers

2. The form of an answer - - -

- 306

- 313

3. The manner in which the sufficiency of answers is decided upon,

and their deficiency supplied

v:

4. The nature and form of disclaimers

315 318

t

2. Demurrers, pleas, answers, and disclaimers, or any two or more of them jointly 319

Chap. III. ri. Of general replications

Of replications and their ^ 3 Qf gpeciai repiications, and the subsequent pleadings anciently used consequences - - 321

. 3. Of subpoena to rejoin, and rejoinder

323

Chap. IV. Of incidents to pleadings V. in general - - - 324

INTRODUCTION.

Of the extraordinary jurisdiction of the court of Chancery ; and of the manner in which Suits to that jurisdiction are instituted, defended, and brought to a decision.

*»'

HPHE Chancery of England lias various offices and *■ jurisdictions. The most important jurisdiction is that which it exercises as a court of equity, usually styled its extraordinary jurisdiction, to distinguish it from those which are termed its ordinary juris- dictions, and are chiefly incident to its ministerial offices, and the privileges of its officers.

The exercise of this extraordinary jurisdiction by courts distinct from those usually styled courts of common law, to which the ordinary administration of justice in civil suits is intrusted, seems to be, in a great degree, a peculiarity in the jurisprudence of the country, but pervading the whole system of its judi- cial polity. The origin of these courts is involved in great obscurity ; their authority has been formerly questioned, and the subjects and limits of their juris-

B

2 EXTRAORDINARY JURISDICTION

diction were then but imperfectly ascertained. Time has given them full establishment, and their powers and duties have become fixed and acknowledged. If any doubt on the extent of their duties has occurred of late years, it has principally arisen from the libera- lity with which the courts of common law have noticed and adopted principles of decision established in courts of equity ; a liberality generally conducive to the great ends of justice, but which may lead to great inconvenience, if the whole system of the administration of justice by courts of equity, the extent of their powers and means of proceeding, the subservience of their principles of decision to the principles of the common law, the preference which they have allowed to common-law rights where in conscience the parties have stood on equal grounds* and the defect in the powers of the courts of com- mon law arising from their mode of proceeding, should not be fullv considered, in all their conse- quences (a).

In the construction of every system of laws, the principles of natural justice have been first con- sidered ; and the great objects of municipal laws have been, to enforce the observance of those prin- ciples, and to provide a positive rule where solme rule has been deemed necessary or expedient and natural justice has prescribed none. It has also been an object of municipal law to establish modes of administering justice.

(a) See Lord Hardwicke's judgment in Wortley and Birkhead, •2 Vez. 573; ,~>74. And see 6 Yes. 39.

OF THE COURT OF CUAXC.ERY. 3

The wisdom of legislators in framing positive laws to answer all the purposes of justice has ever been found unequal to the subject ; and therefore, in all countries, those to whom the administration of the laws has been intrusted, have been compelled to have recourse to natural principles, to assist them in the interpretation and application of positive law, and to supply its defects ; and this resort to natural principles has been termed judging according to equity. Hence a distinction has arisen in jurisprudence between positive law and equity ; but the administration of both has in most countries been left, at least in their superior courts, to the same tribunal. In prescribing forms of proceeding in courts of justice human fore- sight hat also been defective ; and therefore it has been commonly submitted to the discretion of the courts themselves, to vary or add to established forms, as occasion* and the appearance of new cases have required.

In England a policy somewhat different has pre- vailed. The courts established for the ordinary ad- ministration of justice, usually styled courts of common law, have, as in other countries, recourse to principles of equity in the interpretation and application of the positive law : but they are bound to established forms of proceeding ; are in some degree limited in the objects of their jurisdiction ; have been embarrassed by a rigid adherence to rules of decision, originally framed, and in general retained, for wise purposes, yet, in their application, sometimes incompatible with the principles of natural and universal justice, or not equal to the full application of those principles ; and

B 2

4 EXTRAORDINARY JURISDICTION.

the modes of proceeding in those courts, though admirably calculated for the ordinary purposes of justice, are not in all cases adapted to the full inves- tigation and decision of all the intricate and com- plicated subjects of litigation, which are the result of increase of commerce, of riches, and of luxury, and the consequent variety in the necessities, the ingenuity, and the craft of mankind. Their sim- plicity, clearness and precision, are highly advan- tageous in the ordinary administration of justice ; "and to alter them materially would probably produce infinite mischief: but some change would have been unavoidable if the courts of common law had been the only courts of judicature.

Early therefore in the history of our jurisprudence the administration of justice by the ordinary courts appears to have been incomplete, and to supply the defect the courts of equity have exerted their juris- diction : assuming the power of enforcing the prin- ciples upon which the ordinary courts also decide when the powers of those courts, or their modes of proceeding, are insufficient for the purpose ; of pre- venting those principles, when enforced by the ordi- nary courts, from becoming (contrary to the purpose of their original establishment) instruments of in- justice ; and of deciding on principles of universal justice, where the interference of a court of judicature is necessary to prevent a wrong, and the positive law, as in the case of trusts, is silent (b). The courts of

(b) Principles of decision and made the grounds of sue- thus adopted by the courts of cessive decisions, are considered equity, when fully established by those courts as rules to he

OF THE COURT OF CHANCERY.

equity also administer to the ends of justice, by re- moving impediments to the fair decision of a question in other courts ; by providing for the safety of pro- perty in dispute pending a litigation ; by preserving property in danger of being dissipated or destroyed by those to whose care it is by law intrusted, or by persons having immediate but partial interests ; by restraining the assertion of doubtful rights in a man- ner productive of irreparable damage ; by preventing injury to a third person from the doubtful title of others ; and by putting a bound to vexatious and oppressive litigation, and preventing unnecessary multiplicity of suits : and, without pronouncing any judgment on the subject, by compelling a discovery, or procuring evidence, which may enable other courts to give their judgment ; and by preserving testimony when in danger of 'being lost before the matter to which it relates can be made the subject of judicial investigation (c).

This establishment, as before observed, has ob- tained throughout the system of our judicial polity ; most of the branches of that system having their

observed with as much strict- ness as positive law. See the judgment of Sir Joseph Jekyll, quoted by Sir Thomas Clarke, in Blackst. Rep. 152. Pluraque quae usu fori comprobata, de- nique juris scripti auctoritatem propter vetustatem obtinuerunt. Cic. de invent, lib. 2. c. 22. Heinecc. de edict, praet. lib. 1. c. 6. p. 129.

(c) It is not a very easy task accurately to describe the juris- diction of our courts of equity. This general description, though imperfect, and in some respects inaccurate, is offered only for the purpose of elucidating the following treatise, in the course of which the subject must be in many points more fully consi- dered.

B 3

6 EXTRAORDINARY JURISDICTION

peculiar courts of equity (d}, and the court of chancery assuming a general jurisdiction, which ex- tends to cases not within the bounds or beyond the powers of other jurisdictions (e).

The existence of this extraordinary jurisdiction, entirely distinct from the ordinary courts, though frequently considered as an enormity requiring re- dress, has perhaps produced a purity in the admi- nistration of justice which could not have been eifected by other means; and it is in truth, in a great degree, a consequence of that jealous anxiety with which the principles and forms established by the common law have been preserved in the ordinary

(d) Thus the court of ex- accountants to the Crown ; and chequer, established for the par- a suggestion, the truth of which ticular purpose of enforcing the the court will not permit to be payment of debts due to the disputed, " that its suitor is a king, and incidentally adminis- " debtor and accountant to the tering justice to the debtors " Crown," is still used to give and accountants to the Crown, it more extensive jurisdiction, has its own peculiar court of This practice, as well as a simi- equity. The courts of Wales, lar fiction used to give general of the Counties Palatine, of jurisdiction to the common-law London, of the Cinque Ports, court in the exchequer, and the and other particular jurisdic- fiction used to give jurisdiction tions, have also their peculiar to the court of king's bench in courts of equity. a variety of civil suits of which

(e) The court of equity in it has not strictly cognizance, the exchequer chamber is also may appear the objects of cen- frequently considered as a court sure ; but they have probably of general jurisdiction, and in had the effect of preventing that effect it is so, in a great de- abuse of power which is too gree, though in principle it is often the consequence of the not. For its jurisdiction is in single jurisdiction of one su- *trictness confined to suits of preme court.

the Crown, and of debtors and

OF THE COURT OF CHANCERY. 7

courts as the bulwarks of freedom, and of the abso- lute necessity of preventing the strict adherence to those principles and forms from becoming intoler- able.

A suit to the extraordinary jurisdiction of the court of chancery, on behalf of a subject merely, is commenced by preferring- a bill, in the nature of a petition (/), to the lord chancellor, lord keeper, or lords commissioners for the custody of the great seal (g) ; or to the king himself in his court of chan- cery, in case the person holding the seal is a party (/?), or the seal is in the king's hands (/). But if the suit is instituted on behalf of the Crown (7c), or of those who partake of its prerogative (/), or whose rights are under its particular protection as the ob- jects of a public charity (m), the matter of complaint is offered to the court by way of information, given by the proper officer, and not by way of petition (n).

(f) 9 Edw. IV. 41. Prac. raissioners, see 1 W. & M. Reg. p. 57, Wyatt's Edit. This c. 21.

book, and other books of prac- (h) 4 Vin. Ab. 385. L. Leg.

tice, are only cited where no Jud. in Ch. 44. 255. 258. Jud.

other authority occurred, or Auth. M. R. 182. 2 Prax. Aim.

where they might lead the reader Cur. Cane. 463. Ld. Chan,

to further information on the Jefferies against Witherly.

subject. The Practical Regis- (i) 1 West. Symb.Cha. 194. b.

ter is mentioned by Lord Hard- (Ic) 1 Roll. Ab. 373. Att.Gen.

wicke, 2 Atk. 22, as a book, v. Vernon, 1 Vern. 277. 370.

though not of authority, yet (l) As to idiots and lunatics,

better collected than most of the see Chap. 1, sect. 1.

kind. (m) 1 Ca. inCha.158. Anon.

(g) As to the authority of a 3 Atk. 276. See 1 Swanst. 292. lord-keeper, see 5 Eliz. c. 1 8 ; (n) On the subject of infor- and as to that of lords com- mations, see Chap. 1, sect. 3.

B 4

8 EXTRAORDINARY JURISDICTION

Except in some few instances (o), bills and informa- tions have been always in the English language; and a suit preferred in this manner in the court of chancery has been therefore commonly termed a suit by English bill, by way of distinction from the proceedings in suits within the ordinary jurisdiction of the court as a court of common law, which, till the statute of the 4 Geo. II. c. 26, were entered and enrolled, more anciently in the French or Norman tongue, and afterwards in the Latin, in the same manner as the pleadings in the other courts of com- mon law.

Every bill must have for its object one or more of the grounds upon which the jurisdiction of the court is founded ; and as that jurisdiction sometimes ex- tends to decide on the subject, and in some cases is only ancillary to the decision of another court, or a future suit, the bill may either complain of some in- jury which the person exhibiting it suffers, and pray relief according to the injury ; or, without praying relief, may seek a discovery of matter necessary to support or defend another suit ; or, although no actual injury is suffered, it may complain of a threat- ened wrong, and stating a probable ground of pos- sible injury, may pray the assistance of the court to enable the plaintiff, or person exhibiting the bill, to defend himself against the injury whenever it shall be attempted to be committed. As the court

(0) There are some bills in ceed. in Chan, printed under early time in the French Ian- authority of* Commiss. on Pub- guage. See Calendars of* Fro- lie Records, 18^7.

OF THE COURT OF CHANCER*. 0

of chancery lias general jurisdiction in matters of equity not within the bounds or beyond the powers of inferior jurisdictions (p), it assumes a control over those jurisdictions, by removing from them suits which they are incompetent to determine. To effect this, it requires the party injured to institute a suit in the court of chancery, the sole object of which is the removal of the former suit by means of a writ called a writ of certiorari ; and the prayer of the bill used for this purpose is confined to that object.

The bill, except it merely prays the writ of cer- tiorari, generally requires the answer of the defendant, or party complained of, upon oath. An answer is thus required, in the case of a bill seeking the de- cree of the court on the subject of the complaint, with a view to obtain an admission of the case made by the bill, either in aid of proof, or to supply the want of it ; a discovery of the points in the plaintiff's case controverted by the defendant, and of the grounds on which they are controverted ; and a dis- covery of the case on which the defendant relies, and of the manner in which he means to support it. If the bill seeks only the assistance of the court to protect the plaintiff against a future injury, the an- swer of the defendant upon oath may be required to obtain an admission of the plaintiff's title, and a discovery of the claims of the defendant, and of the grounds on which those claims are intended to be supported. When the sole object of a bill is a dis-

(;;) The court of equity in a particular, is not an inferior, the exchequer chamber, though jurisdiction.

10 EXTRAORDINARY JURISDICTION

covery of matter necessary to support or defend another suit, the oath of the defendant is required to compel that discovery. The plaintiff may, if he thinks proper dispense with this ceremony, by con- senting to or obtaining an order of the court for the purpose ; and this is frequently done for the conve- nience of parties where a discovery on oath happens not to be necessary. And where the defendant is entitled to privilege of peerage, or as a lord of par- liament, or is a corporation aggregate, the answer, in the first case, is required upon the honour of the defendant^), and in the latter, under the common seal(r).

To the bill thus preferred, unless the sole object of it is to remove a cause from an inferior court of equity, it is necessary for the person complained of either to make defence, or to disclaim all right to the matters in question by the bill. As the bill calls

(q) Ord. in Cha. Ed. Bea. v. Robinson, 2 Anstr. 479, and

105.261. i8Ves.47o. 1 Vez. so it appears does a moravian,

470. 1 Ves. and B. 187. 1 see 22 Geo. 2. c. 30. And

Jac. and W. 536. And see infidels are permitted to swear

Robinson v. Lord Rokeby, 8 according to the forms of the

Ves. 601, as to Irish peers. religion which they profess^

(r) It may be observed, that provided such forms constitute

although in ordinary cases the an appeal to the Supreme

answer is required upon oath, Being, see the well-known cases

other sanctions are in certain of Omychund v. Barker, 1 Atk.

instances allowed in practice: 21. S. C. 2 Eq. Ca. Abr. 397,

a quaker puts in his answer and Ramkissenseat v. Barker

upon his solemn affirmation 1 Atk. 51 : a jew makes oath

and declaration, see 7 W. & M. upon thepentateuch, Robeley v.

c. 34. 8 Geo. 1. c. 6. Ord. in Langston, 2 Keble, 314, Anon.

Gha. Ed. Bea. 247. Wood v. 1 Vern. 263: and a mahometan

Story, 1 P. Wins. 781. Marsh upon the koran, Stra. 1104.

OF THE COURT OF CHANCERY. It

upon the defendant to answer the several charges contained in it, he must do so, unless he can dispute the right of the plaintiff to compel such an answer, either from some impropriety in requiring the dis- covery sought by the bill, or from some objection to the proceeding to which the discovery is proposed to be assistant ; or unless by disclaiming all right to the matters in question by the bill he shows a further answer from him to be unnecessary («?).

A defendant to a bill may have an interest to sup- port the plaintiff's case, or his interest may not be adverse to that claim ; he may be a mere trustee, or brought before the court in some character necessary to sustantiate the suit, that there may be proper par- ties to it. In such cases, his answer may often be mere matter of form, submitting the subject of the suit to the judgment of the court ; and, if any act should be required to be done by him, desiring only to be indemnified by the decree of the court.

The grounds on which defence may be made to a bill, either by answer, or by disputing the right of the plaintiff to compel the answer which the bill requires, are various. The subject of the suit may not be within the jurisdiction of a court of equity : or some other court of equity may have the proper jurisdic- tion : the plaintiff may not be entitled to sue by reason of some personal disability : if he has no such

(s) In some cases a defend- in the matters in question. See ant may be compelled to an- Chap. II. sect. II. part I. snver, though he has no interest

12 EXTRAORDINARY JURISDICTION

disability he may not be the person he pretends to be : he may have no interest in the subject : or if he has an interest, he may have no right to call upon the defendant concerning it : the defendant may not be the person he is alleged to be by the bill : or he may not have that interest in the subject which can make him liable to the claims of the plaintiff : and, finally, if the matter is such as a court of equity ought to interfere in, and no other court of equity has the proper jurisdiction, if the plaintiff is under no personal disability, if he is the person he pretends to be, and has a claim of interest in the subject, and a right to call upon the defendant concerning it ; if the defendant is the person he is alleged to be, and also claims an interest in the subject which may make him liable to the demands of the plaintiff; still the plaintiff may not be entitled, in the whole or in part, to the relief or assistance he prays : or if he is so entitled, the defendant may also have rights in the subject which may require the attention of the court, and call for its interference to adjust the rights of all parties ; the effecting complete justice, and finally determining, as far as possible, all questions concerning the subject, being the constant aim of courts of equity. Some of these grounds may extend only to entitle the defendant to dispute the plaintiff's claim to the relief prayed by the bill, and may not be sufficient to protect him from making the dis- covery sought by it ; and where there is no ground for disputing the right of the plaintiff to the relief prayed, or if no relief is prayed, yet if there is any

OK THE COURT OF CHANCERY. 1%

impropriety in requiring the discovery sought by the bill, or if the discovery can answer no purpose, the impropriety or immateriality of the discovery may protect the defendant from making it.

The defence which may be made on these several grounds may be founded on matter apparent on the bill, or on a defect either in its frame or in the case made by it ; and may on the foundation of the bill itself demand the judgment of the court whether the defendant shall be compelled to make any answer to the bill, and consequently whether the suit shall proceed ; or it may be founded on matter not appa- rent on the bill, but stated in the defence, and may on the matter so offered demand the judgment of the court, whether the defendant shall be compelled to make any other answer to the bill, and consequently whether the suit shall proceed, except to try the truth of the matter so offered ; or it may be founded on matter in the bill, or on further matter offered, or on both, and submit to the judgment of the court on the whole case made on both sides ; and it may be more complex, and apply several defences differently founded to distinct parts of the bill.

The form of making defence varies according to the foundation on which it is made, and the extent in which it submits to the judgment of the court. If it rests on the bill, and on the foundation of matter there apparent demands the judgment of the court whether the suit shall proceed at all, it is termed a demurrer ; if on the foundation of new matter offered, it demands the judgment of the court whether the

14 EXTRAORDINARY JURISDICTION

defendant shall be compelled to answer further, it * assumes a different form, and is termed a plea ; if it submits to answer generally the charges in the bill, demanding the judgment of the court on the whole case made on both sides, it is offered in a shape still different, and is simply called an answer. If the de- fendant disclaims all interest in the matters in ques- tion by the bill, his answer to the complaint made is again varied in form, and is termed a disclaimer. And all these several forms of defence, and dis- claimer, or any of them, may be used together, if applying to separate and distinct parts of the bill.

A demurrer, being founded on the bill itself, necessarily admits the truth of the facts contained in the bill, or in the part of the bill to which it extends ; and therefore, as no- fact can be in question between the parties, the court may immediately proceed to pronounce its definitive judgment on the demurrer, which, if favourable to the defendant, puts an end to so much of the suit as the demurrer extends to. A demurrer, if allowed, consequently prevents any fur- ther proceeding (t). A plea is also intended to prevent further proceeding at large, by resting on some point founded on matter stated in the plea'; and as it rests on that point merely, it admits, for the

(t ) An amendment of a bill the ground of demurrer may be

has been permitted by a court removed by amendment, to

of equity after a demurrer to make a special order, adapted

thewhole bill had been allowed; to the circumstances of the

but this seems not to have been case. See Chap. 2. sect. 2,

strictly regular; 2 P. Wms.300; part 1. and it seems most proper, if

OF THE COURT OF CHANCERY. |g

purposes of the plea, the truth of the facts contained in the bill, so far as they are not controverted by facts stated in the plea. Upon the sufficiency of this de- fence the court will also give immediate judgment, supposing the facts stated in it to be true : but the judgment, if favourable to the defendant, is not de- finitive ; for the truth of the plea may be denied by the plaintiff by a replication, and the parties may then proceed to examine witnesses, the one to prove and the other to disprove the facts stated in the plea. The replication in this case concludes the pleadings(w) ; though, if the truth of the plea shall not be supported, further proceedings may be had, which will be noticed in a subsequent page (>). An answer generally contro- verts the facts stated in the bill, or some of them, and states other facts to show the rights of the defendant in the subject of the suit ; but sometimes it admits the truth of the case made by the bill, and, either with or without stating additional facts, submits the questions arising upon the case thus made to the judgment of the court. If an answer admits the facts stated in the bill, or such as are material to the plaintiffs case, and states no new facts, or such only as the plaintiff is willing to admit, no further pleading is necessary ; the answer is considered as true, and the court will decide upon it. But if the answer does not admit all the facts in the bill material to the plain- tiff's case, or states any fact which the plaintiff is not disposed to admit, the truth of the answer, or of any

(u) See Chap. III. (.r) See Chap. II. sect. 2. part 2.

l6 EXTRAORDINARY JURISDICTION'

part of it, may be denied, and the sufficiency of the* bill to ground the plaintiff's title to the relief he prays may be asserted, by a replication, which in this case also concludes the pleadings according to the present (y) practice of the court. If a demurrer or plea is over-ruled upon argument the defendant must make a new defence. This he cannot do by a second demurrer of the same extent after one demurrer has been over-ruled ; for although by a standing order of the court a cause of demurrer must be set forth in the pleading, yet if that is overrruled, any other cause appearing on the bill may be offered on argument of the demurrer, and, if valid will be allowed ; the rule of the court affecting only the costs. But after a de- murrer has been overruled new defence may be made by a demurrer less extended, or by plea, or answer ; and after a plea has been over-ruled defence may be made by demurrer, by a new plea, or by an answer : and the proceedings upon the new defence will be the same as if it had been originally made (s). A dis- claimer, neither asserting any fact, nor denying any right sought by the bill, admits of no further plead- ing (a). If the sole object of a suit is to obtain a discovery, there can be no proceeding beyond an answer by which the discovery is obtained. A suit which only seeks to remove a cause from an inferior court of equity does not require any defence, and consequently there can be no pleading beyond the bill.

(y) See Chap. III. (a) See Chap. II. sect. 2.

(z) See Chap. II. sect. 2. part 1 . part 3.

OF THfe COURT OF CHAXCERY. I J

Suits thus instituted are sometimes imperfect in their frame, or become so by accident before their end has been obtained ; and the interests in the pro- perty in litigation may be changed pending the suit in various ways* To supply the defects arising from any such circumstances new suits may become ne- cessary, to add to, or continue, or obtain the benefit of, the original suit. A litigation commenced by one party sometimes renders a litigation by another party necessary, to operate as a defence, or to obtain a full decision on the rights of all parties. Where the court has given judgment on a suit it will in some cases permit that judgment to be controverted, sus- pended, or avoided by a second suit ; and sometimes a second suit becomes necessary to carry into exe- cution a judgment of the court. Suits instituted for any of these purposes are also commenced by bill ; and hence arises a variety of distinctions of the kinds of bills necessary to answer the several purposes of instituting an original suit, of adding to, continuing, or obtaining, the benefit of a suit thus instituted, of instituting a cross-suit, and of impugning the judg- ment of the court on a suit brought to a decision, or of carrying a judgment into execution ; and on all the different kinds of bills there may be the same pleadings, as on a bill used for instituting an original suit.

It frequently happens, that pending a suit the parties discover some error or defect in some of the pleadings, and if this can be rectified by amendment of the pleading the court will in many cases permit

c

1 S EXTRAORDINARY JURISDICTION

it. This indulgence is most extensive in the case of bills ; which being often framed upon an inaccurate state of the case, it was formerly the practice to supply their deficiencies, and avoid the consequences of errors, by special replications. But this tending to long and intricate pleading, the special repli- cation requiring a rejoinder, in which the defendant might in like manner supply defects in his answer, and to which the plaintiff might surrejoin, the special replication is now disused for this purpose, and the court will, in general, permit a plaintiff to rectify any error, or supply any defect in his bill, either by amendment, or by a supplemental bill ; and will also permit, in some cases, a defendant to rectify an error or supply a defect in his answer, either by amendment, or by a further answer.

Summary jurisdiction has been given by authority of Parliament to courts of equity in certain cases, arising incidentally from the provisions of acts of Parliament, both public and private, without requiring the ordinary proceeding by bill or information, and substituting a simple petition to the court ; the assistance of the court being required only to pro- vide for the due execution of the provisions of such acts.

But by an act of the 52 of Geo. 3, c. 101, a sum- mary jurisdiction, on petition only, has been given in the case of abuses of trusts created for charitable purposes, which before were the subjects of informa- tion by the King's Attorney General, to which the persons of whom complaint was made might make

OF THE COURT OF CHANCERY. \Q

defence, according to the nature of the case stated in the information, by demurrer, plea or answer, so that the court might have before it the whole case on which its judgment might be required, and to which evidence to be produced in support of or in answer to the complaint made might be properly applied.

The loose mode of proceeding authorized by this act was probably intended to save expense in inves- tigating abuses of charities : but in practice it una- voidably led to great inconvenience ; the court not having before it any distinct record to which its judgment might be properly applied, and especially with respect to those against whom complaint might be made, or those against whom no such complaint could be made, but whose interests might be affected by the judgment of the court. This inconvenience became apparent in a case which was made the sub- ject of appeal to the House of Lords, who finally de- termined, that a jurisdiction, so summary, and in which the proceedings were so loose, ought, in just construction of the act, to be confined to the simple case of abuse of a clear trust, not involving any question beyond the question of such abuse, and particularly not involving the interests of persons to whom such abuse of trust could not be imputed (b).

In an inquiry into the nature of the several pleadings thus used, it seems most convenient to consider them in the order in which they have their

(Z») Corp" of Ludlow v. Greenhouse. D. Proc. Feb. 18-27.

C 2

20 EXTRAORDINARY JURISDICTION, &C.

effect, and consequently to treat, l, of bills; 2, of the defence to bills, and therein of demurrers, pleas, answers and disclaimers ; 3, of replications ; and 4, to notice matters incidental to pleadings in general, and particularly the cases in which amendments of inaccurate or erroneous pleadings are permitted.

( 21 )

CHAPTER THE FIRST. OF BILLS.

SECTION I. By whom, and against whom, a Bill may be exhibited,

TN treating of bills, it will be proper to consider, ■*■ I. The several persons who are capable of exhi- biting a bill, by themselves, or under the protection, or in the name of others ; and against whom a bill may be exhibited : II. The several kinds and dis- tinctions of bills : and III. The frame and end of the several kinds of bills. An information differing from a bill in little more than in name and form, its nature will be principally considered under the general head of bills, and its peculiarities will be afterwards noticed.

It has been already observed that suits on behalf of the Crown, and of those who partake of its prerogative or claim its peculiar protection, are in- stituted by officers to whom that duty is attributed (a). These are, in the case of the Crown, and of those whose rights are objects of its particular attention,

(a) See above, p. 7.

c 3

22 BY WHOM A BILL

the king's attorney (b) or solicitor-general (c) ; and as these officers act merely officially, the bill they ex- hibit is by way, not of petition or complaint, but of information to the court of the rights which the Crown claims on behalf of itself or others, and of the inva- sion or detention of those rights for which the suit is instituted. If the suit does not immediately concern the rights of the Crown, its officers depend on the re- lation of some person, whose name is inserted in the information, and who is termed the relator ; and as the suit is carried on under his direction, he is considered as answerable to the court and to the par- ties for the propriety of the suit and the conduct of it (d). It sometimes happens that this person has an in-

(b) See l Swanst. 290, 291, Chancery. This subject is par- 294, and Rex v. Austen, 8 Pri. ticularly considered in part iii. Exch. R. 142. And the Crown sect. 4, of a manuscript treatise may be represented as plaintiff on the Star-chamber, in the by the attorney general, and British Museum, Harl. MSS. as defendant by the solicitor vol. i. No. 1226, mentioned in general, in the same suit, where 4 Bl. Com. 267.

there are conflicting claims be- (d) 1 Russ.R. 236. Itappears,

tween the King and persons as intimated in the text, that it

partaking of his prerogative, or is not absolutely necessary, even

under his peculiar protection, in the instances there alluded

See Att. Gen. v. Mayor of to, that a relator should be

Bristol. 3 Madd. 319. S. C. named, 2 Swanst. 520. 4 Dow,

2 Jac. & W, 294. Att. Gen. v. P. C. 8, although the practice

I ivmn. 1 Russ. R. 226. of naming one seems to have

(c) See, as to the solicitor- been universally adopted, lVes. general, Wilkes's Case, 4 Burr. J. 247. 4 Dow, P.C. 8. 1 Sim. 2527. Sol. Gen. v. Dovy, & Stu. 3g6. But it may be re- 6 May, 1735, and Sol. Gen. v. marked that the Legislature, in Warden and Fellowship of Sut- certain special cases in which ton Coldjicld, Mich. 1 763, in the right may be doubtful, has

MAY BE EXHIBITED. 2$

terest in the matter in dispute, of the injury to which interest he has a right to complain. In this case his personal complaint being joined to, and incorporated with, the information given to the court by the officer of the Crown, they form together an information and bill, and are so termed (e). But if the suit immediately concerns the rights of the Crown, the information is generally exhibited without a relator (/); and where a relator has been named, it has been done through the tenderness of the officers of the Crown towards the defendant, that the court might award costs against the relator, if the suit should appear to have been improperly instituted, or in any stage of it improperly conducted (g). The queen-consort, partaking of the

empowered the attorney-ge- Gen. v. Moses, 2 Madd. 294,

neral to institute a suit, by in- a case of information and bill,

formation, without requiring in which the King having had

that a relator should be named. no interest, the attorney-general

See 59 Geo. 3. c. 91, and see was an unnecessary party.

1 Sim. & Stu. 396. (f) Att. Gen. v. Vernon,

(e) See as instances, Alt. 1 Yern. 277. 370. Att. Gen.

Gen.v. Oglender, 1 Yes. J. 247. v. Crofts. 4 Bro. P. C. 13C,

Att. Gen. v. Broivn, 1 Swanst. Toml. Ed.

265. Att. Gen. v. Master and (g) The propriety of naming

FcIl.qfCath. Halt, lJac. 11. 381. a relator for this purpose, and

Att. Gen. v. Heelis, 2 Sim. &: the oppression arising from a

Stu. 67, and Att. Gen. v. Vivian, contrary practice, were parti-

1 Russ. It. 226. If the relator cularly noticed by baron Perrot,

should not be entitled to the in a cause in the Exchequer, Att.

equitable relief which he seeks Gen. v. Fox. In that cause

for himself, the suit may never- no relator was named ; and

flic less be supported on behalf though the defendants finally

of the Crown, 1 Swanst. 305 ; prevailed, they were put to an

and upon an information and expense almost equal to the

bill, the bill alone may be dis- value of the property in dispute,

missed, see Att. Gen. v. Vivian, See 2 Swanst. 520. 1 Sim. &

i Russ. R. 22G. And see Att. Stu. 397. 1 Russ. R. 236. If

c 4

24 BY WHOM A BILL

prerogative of the Crown, may also inform by her at- attorney (//).

Suits on behalf of bodies politic and corporate, and of persons who do not partake of the prerogative of the Crown, and have no claim to its particular protection, are instituted by themselves, either alone or under the protection of others. Bodies politic and corporate (J), and all persons of full age, not being feme-covert, idiot or lunatic, may by themselves alone exhibit a bill, A feme-covert, if her husband is ba- nished (A*) or has abjured the realm (7), may do so like- wise ; for she then may act in all respects as a feme- sole (;//). Those, therefore, who are incapable of ex- hibiting a bill by themselves alone, are, i , infants ; 2, married women, except the wife of an exile, or of one who has abjured the realm ; 3> idiots and lunatics (ri),

the relator should die, this court Meriv. 467. East India Comp.

would appoint another. Att. v. K eighley, 4 Madd. 1 o. Vaux-

Gen. v. Pouel, Dick. 355. hall Bridge Company v. Earl

(h) 10 Edw. III. 179. Col- Spencer, l Jac. R. 64. Presi-

lins, 131. 2 Rol. Ab. 213. dent, Sfc. of Magdalen College

(i) 3 Swanst. 138. As ex- v. Sibthorp, 1 Russ. R. 154.

amples of suits by such bodies, (k) 1 Hen. IV. 1. Si/bell

see the Charitable Corporation Belknap's case, 2 Hen. IV*

v. Sidton, 2 Atk. 406. Unixer- 7. a. 11 Hen. IV. 1. a. b.

sitics of Oxford and Cambridge v. (/) Thomas of Weyland's case,

Richardson, GVes. 689. Mayor, 19 Edw. I. 1 Inst. 133. a.

Sfc. of London v. Levy, 8 Ves. (m) See Netosome v. Boivyert

398. CityofLondon\.Mitford, 3 P. Wms. 37.

14 Ves. 41. Bank of England (n) It may seem, that the

y. Lunn, 15 Ves. 569. Mayor of disabilities arising from out-

Colchester v. Loivten, 1 Ves. & lawry, excommunication, con-

B« 226. Dean and Chapter of viction of Popish recusancy,

Qhristchurch v, Simonds, 2 attainder, and alienage, and

MAY BE EXHIBITED. 25

i. An infant is incapable by himself oi exhibiting a bill, as well on account of his supposed want of dis- cretion, as his inability to bind himself, and to make himself liable to the costs of the suit(o). When, therefore, an infant claims a right, or suffers an injury, on account of which it is necessary to resort to the extraordinary jurisdiction of the court of chancery, his nearest relation is supposed to be the person who will take him under his protection, and institute a suit to assert his rights or to vindicate his wrongs ; and the person who institutes a suit on behalf of an infant is therefore termed his next friend. But as it fre- quently happens that the nearest relation of the infant himself withholds the right, or does the injury, or at least neglects to give that protection to the infant which his consanguinity or affinity calls upon him to give, the court, in favour of infants, will permit any person to institute suits on their behalf (p); and who-

those which formerly arose case of a popish recusant, a bill

from villenage and profession, exhibited under the disability

ought to be here noticed. Such may be proceeded upon. At-

of them as subsist do not, and tainder and alienage no other-

the others did not, absolutely wise disable a person to sue

disable the person suffering un- than as they deprive him of the

der them from exhibiting a bill, property which may be the ob-

Outlawry, excommunication, ject of the suit. Villenage and

and conviction of Popish recu- profession were in the same

sancy, are not in some cases predicament. See Chap. 2,

any disability ; and where they sect. 2, part 2.

are a disability, if it is removed (o) Turner v. Turner, Stran.

by reversal of the outlawry, by 708.

purchase of letters of absolution (p) Andrews v. Cradock, Prcc.

in the case of excommunica- inChan. 376. Anon. 1 Atk. 570.

tion, or by conformity in the 2 P.Wms. 120. 1 Ves. J. 195.

26 BY WHOM A BILL

ever acts thus the part which the nearest relation ought to take, is also styled the next friend of the in- fant, and as such is named in the bill(y). The next friend is liable to the costs of the suit(r), and to the censure of the court, if the suit is wantonly or impro- perly instituted (s) ; but if the infant attains twenty- one, and afterwards thinks proper to proceed in the cause, he is liable to the whole costs (f). If the

(q) 2 Eq. Cas. Abr. 239. 1 Ves. J. 195.

(r) 4 Madd. 461 ; and see Turner v. Turner, 2 1'. Wms. 297. S. C. on appeal, 2 Eq. Ca. Ab. 238 ; and Strange, 708. It is hence, of course, important to the defendant that the prochein amy, or next friend of the infant, be a person of substance, Anon. 1 Atk. 570; and, where the contrary appears to be the fact, on an application by the de- fendant before answer, he will be compelled to give security for costs, or another person will be appointed to sue in his stead, Wale v. Salter, Mosely, 47. Anon. Mosely, 86. Anon. 1 Ves. J. 409; and see Penning- ton v. Alvin, 1 Sim. & Stu. 264.

(s) And if the next friend of an infant do not proceed in the cause, this court, if it be desira- ble, will supersede him, Ward v. Ward, 3 Meriv. 706 ; 1 Jac. & W. 483 ; but the next friend of an infant cannot procure the substitution of another person to act in his place, without sub-

mitting to an investigation into his past conduct by the court, Melling v. Melling, 4 Madd. 261 . If the next friend should die, the court will take upon itself to appoint another, Lan- caster v. Thornton, Ambl. 398. Bracey v. Sandiford, 3 Madd. 468. '

(t) In Turner and Turner, 2 P. Wins. 297, Lord King was first of opinion that upon a bill filed in the name of an infant who attained twenty-one, the plaintiff was liable to the costs, though he did not proceed after he attained that age ; but upon a rehearing he changed his opinion, and dismissed the bill without costs, the prochein amy being dead. See S. C. Strange, 708, and 2 Eq. Ca. Ab. 238. It now seems, that if no mis- conduct {Pearce v. Pearce, 9 Ves. 548.) be proved against the next friend, either in the institution, or progress of the suit, the late infant, although he should not adopt it, will be liable to the costs, Anon. 4 Madd. 461.

MAY BE EXHIBITED. 27

person who thus acts as friend of an infant does not lay his ease properly before the court, by collusion, neglect or mistake, a new bill may be brought on behalf of the infant ; and if a defect appears on hear- ing of the cause, the court may order it to stand over, with liberty to amend the bill(w).

The next friend of an infant plaintiff is considered as so far interested in the event of the suit that he or his wife (#) cannot be examined as a witness. If their examination is necessary for the purposes of justice his name must be struck out of the bill, and that of another responsible person substituted, which the court, upon application, will permit to be done(j/). As some check upon the general license to institute a suit on behalf of an infant, if it is represented to the court that a suit preferred in his name is not for his benefit, an inquiry into the fact will be directed to be made by one of the masters ; and if he reports that the suit is not for the benefit of the infant, the court will stay the proceedings (z). And if two suits for the same purpose are instituted in the name of an infant, by different persons acting as his next friend, the court will direct an inquiry to be made in the same manner, which suit is most for his benefit ; and

{u) Serle v. St.Eloy, 1 P.Wms. Witts v. Campbell, 1 2 Ves. 493.

386. Pritchard v. Quinchant, Davenport v. Davenport,! Sim.

Ambl. 147. & Stu. 101.

(x) Head v. Head, 3 Atk. (z) Da Costa v. Da Costa,

511* 3 P- Wms. 140. Strange, 709.

(y) Strange, 708. As a ge- 2 Eq. Ca. Ab. 239. Such an

neral rule, it may be stated that inquiry will not be directed

this is done upon the next upon the application of the

friend giving security for the next friend himself. Jones v.

costs incurred in his time, Poxvcll, 2 Mcriv. 141.

28 BY WHOM A BILL

when that point is ascertained will stay proceedings in the other suit(fl).

2. A married woman being under the protection of her husband, a suit respecting her rights is usually instituted by them jointly (//). But it sometimes happens that a married woman claims some right in opposition to rights claimed by her husband ; and then the husband being the person, or one of the persons, to be complained of, the complaint cannot be made by him. In such case, therefore, as the wife being under the disability of coverture cannot sue alone, and yet cannot sue under the protection of her husband, she must seek other protection, and the bill must be exhibited in her name by her next friend (c), who is also named in the bill in the same manner as in the case of an infant (d). But a bill cannot in the case of a feme-covert be filed without her consent (e). The consent of an infant to a bill filed in his name is not necessary (/).

(a) lVes. 545; Oivenv.Owen, 452. Lady Elibank v. Monto- Dick. 310. Sullivan \ . Sullivan, lieu, 5 Ves. 737. Pennington 2 Meriv. 40. Mortimer v. West, v. Alain, 1 Sim. & Stu. 264.

1 Swanst. 358 ; but it seems (d) But, it seems, the next

an application for this purpose friend of a feme-covert is not

should not be made except in always, in the first instance,

a strong case, Stevens v. Stevens, liable to the costs. Strange,

6 Madd. 97; nor generally, after 709.2 Eq. Ca. Ab. 239. Bar-

a decree in one of the suits, lee v. Barlee, 1 Sim. & Stu.

1 Jac. R. 528. 100.

(b) Smith v. Myers, 3 Madd- (e) Andrews v. Cradock, Prec. 474. Farrer v. Wyatt, 5 Madd. in Ch. 376. S. C. 1 Eq. Cas. 449. Hughes v. Evans, 1 Sim. & Abr. 72. 1 Sim. & Stu. 265. Stu. 185. (J) Andrews v. Cradock%

(c) Griffith v. Hood, 2 Vez. Prec. in Ch. 376.

MAY BE EXHIBITED. 29

3. The care and commitment of the custody of the persons and estates of idiots and lunatics are the prerogative of the Crown, and are always intrusted to the person holding the great seal, by the royal sign- manual. By virtue of this authority, upon an in- quisition finding any person an idiot or a lunatic, grants of the custody of the person and estate of the idiot or lunatic are made to such persons as the lord chancellor, or lord keeper, or lords commissioners for the custody of the great seal for the time being, think proper (o). Idiots and lunatics, therefore, sue by the committees of their estates (//). Sometimes, indeed, informations have been exhibited by the attorney-general on behalf both of idiots and luna- tics, considering them as under the peculiar protect tion of the Crown (i), and particularly if the interests of the committee have clashed with those of the lunatic (/i). But in such cases, a proper relator ought to be named (/) ; and where a person found a lunatic has had no committee, such an information has been filed, and the court has proceeded to give

(g) 3 P- Wms. 10G, 107. Ex parte Pi.ckard, 3 Ves. & Bea. 127.

(h) 1 Ca. in Cha. 19; Ridltr v. Ridler, 1 Eq. Ca. Ab. 279. Prac. Reg. 272. Wy. Ed.

(i) Att. Gen. v. Parkhurst, 1 Ca. in Cha. 1 1 2. Att. Gen. v. Woolrich, 1 Ca- in Cha. 15;}. 3 Bro. P. C. 633. Tonil. Ed.

(It) See Ait. Gen. v. Panther, Dick. 748.

(/) Att. Gen. at relation of Griffith Vanghan, a lunatic, against Tyler and others, 11 July 1764. On mot ion, ordered that a proper relator should be appointed, who might be re- sponsible to the defendants for the costs of the suit. See Dick. 378. 2 Eden, 230. And see Att. Gen. v. Plumptree, 5 Madd. 452, though the case of a charity information.

30 BY WHOM A BILL

directions for the care of the property of the lunatic, and for proper proceedings to obtain the appointment of a committee (m).

Persons incapable of acting for themselves, though not idiots or lunatics, or infants, have been permitted to sue by their next friend, without the intervention of the attorney-general («).

A bill may be exhibited against all bodies politic and corporate, and all persons, as well infants, mar- ried women, idiots and lunatics, as those who are not under the same disability, excepting only the king and queen (o). But to a bill filed against a mar- ried woman her husband must also be a party, unless he is an exile, or has abjured the realm ; and the committee of the estate of on idiot or lunatic must be made defendant with the person whose property is under his care. Where the rights of the Crown are concerned, if they extend only to the superinten- dence of a public trust, as in the case already men- tioned of a charity, the king's attorney-general may be made a party to sustain those rights ; and in other cases, where the Crown is not in possession, a title vested in it is not impeached, and its rights are only incidentally concerned, it has generally been consi- dered that the king's attorney-general may be made

(m) Att. Gen. on behalf of against Thomas Witherly and

Maria Lepine, a lunatic, at the others. In chancery — Decree,

relation of John Fox; and also l Dec. 1760. Decree on sup-

Maria Lepine against Earl and plemental bill, 4 March 1779.

Countess Hoxve and others ; See Wartnaby v. Wartnaby,

26 March 1793. — 3 Apr. 1794. 1 Jac. R. 377.

(n) Eliz. Liney, a person deaf (0) See Chap. 2, sect. 1. and dumb, by her next friend,

MAY BE EXHIBITED. 3*

a party in respect of those rights, and the practice has been accordingly Qj). But where the Crown is in possession, or any title is vested in it which the suit seeks to divest or affect, or its rights are the im- mediate and sole object of the suit, the application must be to the King by petition of right (g), upon which, however, the Crown may refer it to the chan- cellor to do right, and may direct that the attorney- general shall be made a party to a suit for that purpose ; or a suit may be instituted in the court of exchequer, as a court of revenue, and general auditor for the King, and relief there obtained, the attorney- general being made a party (r). The Queen has also the same prerogative^).

A suit may affect the rights of persons out of the jurisdiction of the court, and consequently not com- pellable to appear in it. If they cannot be prevailed upon to make defence to the bill, yet, if there are other parties, the court will in some cases proceed against those parties (t) ; and if the absent parties are merely passive objects of the judgment of the

(p) See Batch v. Wastall% pany, in chancery, 24 Oct. 1746.

1 P. Wms. 445. Bolder v. Pawlet v. Att. Gen. in Excheq.

Bank of England, 10 Ves. 352. Hardres, 465. Poole v. Att.

(q) See legal judic. in Chanc. Gen. Excheq. Parker, 272.

stated p. 1 8. Reeve against Att. Wilkes's case, Exch. Lane, 54.

Gen. mentioned in Penn against (s) 2 Roll. Ab. 213. But see

Lord Baltimore, l Vez. 445, Staunf. Praer. 75, 6. 9 Hen. 6,

446. The bill was dismissed 53. Writ of annuity against

27 Nov. 1741, by Lord Hard- Joan queen dowager of Hen. IV.

wicke. (t) Williams v. Whinyates,

(r) Lord Hardwicke in Hug- 2 Bro. C. C. 399. 1 Sch. &

gins and York-buildings com- Lefr. 240. l(> Ves. 326^

S'l

BY WHOM A BILL MAY BE EXHIBITED.

court, or their rights are incidental to those of parties before the court, a complete determination may be obtained (u) ; but if the absent parties are to be active in the performance of a decree, or if they have rights wholly distinct from those of the other parties, the court cannot proceed to a determination against them (V).

(u) In Att. Gen. at relation of University of Glasgoiv, against Baliol College and others, in Chancery, Dec. nth 1744, which was an informa- tion filed, impeaching a decree made in 1699, on an informa- tion by the attorney general against the trustees of a testa- tor, his heirs at law, and others, to establish a will, and a charity created by it, alleging that the decree was contrary to the will, and that the university of Glas- gow had not been made party to the suit ; Lord Hardwicke overruled the latter objection,

as the university of Glasgow was a corporation out of the reach of the process of the court, which warranted the pro- ceeding without making that body party to the suit. See W alley v. Whalley, 1 Vern. 487. Rogers v. Linton, Bunb. 200. Qidntine v. Yard, 1 Eq. Ca. Abr. 74.

(x) See Fell v. Brotvn, 2 Bro. C. C. 276. Hence there some- times arises an absolute defect of justice, which seems to require the interposition of the Legislature.

( 3i )

CHAPTER I. SECTION II.

Of the several kinds and distinctions of Bills.

IT has been mentioned in the introduction that different kinds of bills are used to answer the several purposes of instituting an original suit, of adding to, continuing, or obtaining the benefit of a suit thus instituted, of instituting a cross-suit, of impugning the judgment of the court on a suit brought to a decision, and of carrying a judgment into execution. The several kinds of bills have been usually con- sidered as capable of being arranged under three general heads. I. Original bills, which relate to some matter not before litigated in the court by the same persons standing in the same interests. II. Bills not original, which are either an addition to, or a continuance of, an original bill, or both. III. Bills, which, though occasioned by or seeking the benefit of a former bill, or of a decision made upon it, or attempting to obtain a reversal of a decision, are not considered as a continuance of the former bill, but in the nature of original bills. And though this arrangement is not perhaps the most perfect, yet, as it is nearly just, and has been very generally adopted in argument, and in the books of reports and of practice, it will be convenient to treat of the different kinds of bills with reference to it.

34 THE SEVERAL KINDS

I. A bill may pray relief against an injury suffered, or only seek the assistance of the court to enable the plaintiff to defend himself against a possible future injury, or to support or defend a suit in a court of ordinary jurisdiction. Original bills have therefore been again divided into bills praying relief, and bills not praying relief. — An original bill praying relief may be, l . A bill praying the decree or order of the court touching some right claimed by the person exhibiting the bill, in opposition to some right claimed by the person against whom the bill is ex- hibited. 2. A bill of interpleader, where the per- son exhibiting the bill claims no right in opposition to the rights claimed by the persons against whom the bill is exhibited, but prays the decree of the court touching the rights of those persons, for the safety of the person exhibiting the bill. 3. A bill praying the writ of certiorari to remove a cause from an inferior court of equity. — An original bill not praying relief may be, 1 . A bill to perpetuate the testimony of witnesses. 2. A bill for discovery of facts resting within the knowledge of the person against whom the bill is exhibited, or of deeds, writings, or other things in his custody or power.

II. A suit imperfect in its frame, or become so by accident before its end has been obtained, may, in many cases, be rendered perfect by a new bill, which is not considered as an original bill, but merely as an addition to or continuance of the former bill, or both. A bill of this kind may be, 1. A supple- mental bill, which is merelv an addition to the

OF BILLS. or

original bill. 2. A bill of revivor, which is a con- tinuance of the original bill, when by death some party to it has become incapable of prosecuting or defending a suit, or a female plaintiff has by marriage incapacitated herself from suing alone. 3. A bill both of revivor and supplement, which continues a suit upon an abatement, and supplies defects arisen from some event subsequent to the institution of the suit.

III. Bills for the purposes of cross litigation of matters already depending before the court, of con- troverting, suspending, avoiding or carrying into exe- cution, a judgment of the court, or of obtaining the benefit of a suit which the plaintiff is not entitled to add to or continue for the purpose of supplying any defects in it, have been generally considered under the head of bills in the nature of original bills, though occasioned by or seeking the benefit of former bills : and may be, 1 . A cross-bill, exhibited by the defendant in a former bill, against the plaintiff in the same bill, touching some matter in litigation in the first bill. 2. A bill of review, to examine and reverse a decree made upon a former bill, and signed by the person holding the great seal, and enrolled, whereby it has become a record of the court. 3. A bill in the nature of a bill of review, brought by a person not bound by the former decree. 4. A bill to impeach a decree upon the ground of fraud. 5. A bill to suspend the operation of a decree on special circum- stances, or to avoid it on the ground of matter arisen subsequent to it. 6. A bill to carry a decree made

d 2

$6 FRAME AND EXD OF THE

in a former suit into execution. 7. A bill in the nature of a bill of revivor, to obtain the benefit of a suit after abatement in certain cases which do not admit of a continuance of the original bill. 8. A bill in the nature of a supplemental bill, to obtain the benefit of a suit, either after abatement in other cases which do not admit of a continuance of the original bill, or after the suit is become defective, without abatement in cases which do not admit of a supplemental bill to supply that defect.

CHAPTER 1. SECTION III.

Of the frame and end of the several kinds of Bills ; and of Informations.

1 H E several kinds of bills have been already con- sidered as divided into three classes. In the first class have been ranked original bills ; in the second, bills not original ; in the third, bills in the nature of original bills, though occasioned by former bills. The frame and end of the several kinds of bills will be treated with reference to this distribution, and the peculiarities of informations will be considered under a fourth head.

I. Original bills have been mentioned as again divisible into bills praying relief, and bills not pray- ing relief.

SEVERAL KINDS OF BILLS. 37

Original bills praying relief have been ranked under three heads. — l. Original bills praying the decree of the court touching some right claimed by the person exhibiting the bill, in opposition to rights claimed by the person against whom the bill is exhibited. 2. Bills of interpleader . And, 3. Cer- tiorari bills. — Bills of the first kind are the bills most usually exhibited in the court; and as the se- veral other kinds of bills are either consequences of this, or very similar to it in many respects, the con- sideration of bills of this kind will in a great measure involve the consideration of bills in general.

1. An original bill, praying the decree of the court touching rights claimed by the person exhi- biting the bill, in opposition to rights claimed by the person against whom the bill is exhibited, must show the rights of the plaintiff, or person exhibiting the bill ; by whom, and in what manner, he is in- jured ; or in what he wants the assistance of the court ; and that he is without remedy, except in a court of equity, or at least is properly relievable, or can be most effectually relieved there. Having thus shown the plaintiff's title to the assistance of the court, the bill may pray, that the defendant, or per- son against whom the bill is exhibited, may answer upon oath the matters charged against him ; and it may also pray the relief or assistance of the court which the plaintiff's case entitles him to. For these purposes the bill must pray, that a writ, called a writ of subpoena, may issue under the great seal, which is the seal of the court, to require the de-

» 3

38 FRAME AND END OF THE

fendant's appearance, and answer to the bill ; unless the defendant has privilege of peerage, or as a lord of parliament, or is made a defendant as an officer of the Crown. In the case of a peer or peeress, or lord of parliament, the bill must first pray the letter of the person holding the great seal, called a letter missive, requesting the defendant to appear to and answer the bill (a) ; and the writ of subpoena only in default of compliance with that request. And if the attorney-general is made a defendant as an officer of the Crown, the bill must pray, instead of the writ of subpoena (b), that he, being attended with a copy, may appear and put in an answer. It is usual to add to the prayer of the bill a general prayer of that relief which the circumstances of the case may require ; that if the plaintiff mistakes the relief to which he is entitled, the court may yet afford him that relief to which he has a right (c). Indeed it has been said, that a prayer of general relief, with- out a special prayer of the particular relief to which the plaintiff thinks himself entitled, is sufficient (d) ; and that the particular relief which the case requires

(a) This mark of courtesy is Ireland, 39 & 40 Geo. 3, c. 67,

in respect of peerage generally, 2rt. 4, and Robinson v. Lord

see Lord Milsmgton v. Earl of Rokeby, 8 Ves. 601.

Portmore, 1 Ves. & B. 419; {b) See Barclay v. Russell,

and is to be observed towards Dick. 729, S. C. 3 Ves. 424.

Scotch peers, see Act of Union (c) Hollis v. Carr, 2 Mod. 86.

with Scotland, 5 &c 6 Anne, (d) See Cook v. Martyn, 2

c. 8, art. 23, and Irish peers not Atk. 3. The report of this case

members of the House of Com- is apparently very inaccurate.

mons, see Act of Union with See 1 Eden. R. 26. 1 1 Ves. 574.

SEVERAL KINDS OF BILLS. 39

may, at the hearing, be prayed at the bar (e). But this relief must be agreeable to the case made by the bill(/), and not different from it(g); and the court will not in all cases be so indulgent as to permit a bill framed for one purpose to answer another, especially if the defendant may be surprised or prejudiced. If, therefore, the plaintiff doubts his title to the relief he wishes to pray, the bill may be framed with a double aspect ; that if the court de- termines against him in one view of the case, it may yet afford him assistance in another (A). Upon an information by the attorney-general on behalf of a charity, the court will give the proper directions as to the charity, without regarding the propriety or impropriety of the prayer of the information (i).

All persons interested in the subject of the suit ought generally to be parties (&), if within the ju-

(e) See Wilkinson v. Beal, 367. 2 Jac. & W. 370 ; and it

4 Madd. 408. seems that a similar observation

(f) Beaumont v. Boultbee, would in some instances apply

5 Ves. 485. Hiern v. Mill, upon a bill filed on behalf of an l3Ves. 114. 2 Sch. &Lefr. 10. infant, Stapilton v. Stapilton, 729. 3 Swanst. 208, note. 1 Atk. 2 ; and see Durant v.

(g) 2 Atk. 141. 3 Atk. 132. Durant, 1 Cox, 58, in which, on 1 Ves. J. 426. 2Vez. 299. Birch reference to the record, it ap- v. Corbin, 9 Dec. 1784, in Chan, pears that the daughter was 1 Ves. J. 426. Lord Walpole v. an infant, Reg. Lib. ] 783, p. Lord Orford, 3 Ves. 402. Palk 192.

v. Lord Clinton, 12 Ves. 48. (k) This proposition, al-

(h) 2 Atk. 325 ; and see though undoubtedly correct in

Terry v. Phelips, 17 Ves. 173. relation to suits for relief, Paiu-

(1) Alt. Gen. v. Jeanes, let v. Bishop of Lincoln, 2 Atk.

1 Atk. 355. 1 Vez. 43. 72. 29C. Poore v. Clark, 2 Atk. 418. Alt. Gen. v. Breton, 515. 1 Ves. J. 39. 7 Ves. 563.

2 Vez. 426, 427. 11 Ves. 247. 1 Meriv. 262. 3 Meriv. 512.

D 4

40 FRAME AND END OF THE

risdiction of the court (/). Who are the necessary parties to a suit will be considered in the next chapter, in treating of demurrers ; but if any neces- sary parties are omitted, or unnecessary parties are inserted, the court, upon application, will in general permit the proper alterations to be made. The cases in which this permission is usually granted, and the terms upon which it may be obtained, will be more particularly the subject of consideration in the fourth chapter.

It is the practice to insert in a bill a general charge, that the parties named in it combine together, and with several other persons unknown to the plaintiff, whose names, when discovered, the plaintiff prays he may be at liberty to insert in the bill. This prac- tice is said to have arisen from an idea that without such a charge parties could not be added to the bill by amendment ; and in some cases perhaps the charge has been inserted with a view to give the court jurisdiction. It has been probably for this reason generally considered, that a defendant de- murring to a bill comprising persons whose interests are so distinct that they ought not to be made parties to the same bill, ought to answer the bill so far as to deny the charge of combination. The denial of combination usually inserted as words of course at the close of an answer, is a denial of unlawful corn-

has been said, but upon some- (/) As to mode of framing

what doubtful authority, not to the bill, where a defendant

appiy where discovery alone is is out of the jurisdiction, see

sought, Sangosa v. E. I. Comp. 1 Sch. & Lefr. 240 ; Wilkinson

Eq. Ca. Ab. 170. v. Beat, 4 Madd. 408.

SEVERAL KINDS OF BILLS. 41

bination ; and it has been determined that a general charge of combination need not be answered (rii)* An answer to a charge of unlawful combination can- not be compelled ; and a charge of lawful combination ought to be specific to render it material. For where persons have a common right they may join together in a peaceable manner to defend that right ; and though some of them only may be sued, the rest may contribute to the defence, at their common charge (n) : and if on the ground of such a combina- tion the jurisdiction of a court of equity is attempted to be sustained, where the jurisdiction is properly at the common law, the combination ought to be specially charged, that it may appear to warrant the assumption of jurisdiction by a court of equity. From whatever cause the practice of charging com- bination has arisen, it is still adhered to, except in the case of a peer, who was never charged with com- bining with others to deprive the plaintiff of his right, either from respect to the peerage, or perhaps from apprehension that such a charge might be con- strued a breach of privilege.

The rights of the several parties, the injury com- plained of, and every other necessary circumstance, as time, place, manner, or other incidents, ought to be plainly yet succinctly, alleged. Whatever is essential to the rights of the plaintiff, and is neces- sarily within his knowledge, ought to be alleged

(»i) See Oliver v. Haywood, (n) See Lord Howard v. Bell,

l Anstr. Exch. Rep. 82. Hob. 91.

42 FRAME AND END OF THE

positively (w), and with precision (o) ; but the claims of the defendant may be stated in general terms ; and if a matter essential to the determination of the plaintiff's claims is charged to rest in the knowledge of the defendant, or must of neccessity be within his knowledge, and is consequently the subject of a part of the discovery sought by the bill, a precise alle- gation is not required (p).

As the bill must be sufficient in substance, so it must have convenient form (q). The form of an ori- ginal bill commonly used consists of nine parts : — The first part is the address of the bill to the person holding the great seal, the terms of which are always prescribed by the court upon every change of the custody of the seal, or alteration in the style of the person to whom it is committed. — In the second place are contained the names of the parties com- plainants, and their descriptions (r), in which their abode is particularly required to be set forth, that the court, and the parties defendants to the bill, may know where to resort to compel obedience to any

(n) It has been determined, Lefr. 280. Albretcht v. Suss-

upon demurrer, that it is not a man, 2 Ves. and Bea. 323.

sufficient allegation of fact in a (p) See Baring v. Nash,

bill, to state that the plaintiff is 1 Ves. & Bea. 551.

so informed. Lord Uxbridgev. (q) 9 Edw. IV. 41. Prac.

Staveland, 1 Vez. 56. Reg. 57. Wy. Ed.

(0) See E.I. Comp.v. Hench- (r) It seems, however, that

man, 1 Ves. J. 287. Cressett v. the description, so given, of a

Mytton, 3 Bro. C. C. 481 . Byves plaintiff, is not considered to be

v. Byves, 3 Ves. 343. Mayor an allegation of the truth there-

<of London v. Levy, 8 Ves. 398. of, see Albretcht v. Sassman,

Caretv v. Johnston, 2 Sch. &• 2 Ves. & Bea. 323.

SEVERAL KINDS OF BILLS. 43

order or process of the court, and particularly for payment of any costs which may be awarded against the plaintiffs, or to punish any improper conduct in the course of the suit. — The third part contains the case of the plaintiffs, and is commonly called the stating-part of the bill (s). — In the fourth place is the general charge of confederacy against the persons complained of, which has been already mentioned as commonly inserted, though it seems unnecessary. — Fifthly, if the plaintiffs are aware of a defence which may be made, and have any matter to allege which may avoid it, the general charge of confederacy is usually followed by an allegation that the defendants pretend or set up the matter of their defence, and by a charge of the matter which may be used to avoid it. This is commonly called the charging- part of the bill, and is sometimes also used for the purpose of obtaining a discovery of the nature of the defendant's case, or to put in issue some matter which it is not for the interest of the plaintiffs to ad- mit ; for which purpose the charge of pretence of the defendant is held to be sufficient (f). Thus, if a bill is filed on any equitable ground by an heir, who ap- prehends his ancestor has made a will, he may state his title as heir ; and alleging the will by way of pre- tence of the defendant's claiming under it, make it a part of the case without admitting it. — The sixth part of the bill is intended to give jurisdiction of the suit to the court by a general averment that the acts com- plained of are contrary to equity, and tend to the

(s) See 1 1 Ves. 574. See also Flint v. Field, 3 Anetr.

(/) 3 Atk. 6-26. 1 1 Ves. 57J. 543.

44 FRAME AND END OF THE

injury of the complainants, and that they have no remedy or not a complete remedy, without the as- sistance of the court ; but this averment must be sup- ported by the case shown in the bill, from which it must be apparent that the court has jurisdiction. — The bill having shown the title of the persons com- plaining to relief, and that the court has the proper jurisdiction for that purpose, in the seventh place prays, that the parties complained of may answer all the matters contained in the former part of the bill, not only according to their positive knowledge of the facts stated, but also according to their remembrance, to the information they may have received, and the belief they are enabled to form on the subject. A principal end of an answer upon the oath of the de- fendants, is to supply proof of the matters necessary to support the case of the plaintiffs ; and it is there- fore required of the defendants, either to admit or deny all the facts set forth in the bill, with their at- tending circumstances, or to deny having any know- ledge or information on the subject, or any recollec- tion of it, and also to declare themselves unable to form any belief concerning it. But as experience has proved that the substance of the matters stated and charged in a bill may frequently be evaded by answer- ing according to the letter only, it has become a prac- tice to add to the general requisition that the de- fendants should answer the contents of the bill, a re- petition, by way of interrogatory, of the matters most essential to be answered, adding to the inquiry after each fact an inquiry of the several circumstances which may be attendant upon it, and the variations to

SEVERAL KIN.DS OF BILLS. 45

which it may be subject, with a view to prevent eva- sion, and compel a full answer. This is commonly termed the interrogating-part of the bill ; and as it was originally used only to compel a full answer to the matters contained in the former part of the bill, it must be founded on those matters («). Therefore, if there is nothing in the prior part of the bill to warrant an interrogatory the defendant is not compellable to answer it : a practice necessary for the preservation of form and order in the pleadings, and particularly to keep the answer to the matters put in issue by the bill. But a variety of questions may be founded on a single charge, if they are relevant to it (#). Thus, if a bill is filed against an executor for an ac- count of the personal estate of his testator, upon the single charge that he has proved the will may be founded every inquiry which may be necessary to ascertain the amount of the estate, its value, the dis- position made of it, the situation of any part remain- ing undisposed of, the debts of the testator, and any other circumstance leading to the account required. The prayer of relief is the next and eighth part of the bill, and is varied according to the case made, concluding always with a prayer of general relief, at the discretion of the court (3/). — To attain all the ends of the bill, it, ninthly, and lastly, prays that process may issue (z) requiring the Defendants to appear to and

(u) 1 Vez. 538. 6 Ves. 62. (y) Vide sup. p. 38.

Faulder v. Stuart, 11 Ves. 296. (z) They alone are defendants

Bullock v. Richardson, 11 Ves. against whom process is prayed.

373. 1 1 Ves. 574. See Faxukcs v. Pratt, 1 P.

(1) 1 Vez. 318. 11 Ves. 301. Wms.

37fI-

46 FRAME AXD END OF THE

answer the bill, and abide the determination of the court on the subject ; adding, in case any defendant has privilege of peerage, or is a lord of parliament, a prayer for a letter missive before the prayer of pro- cess ; and in case the attorney-general, as an officer of the Crown, is made a defendant, the bill, as before observed, instead of praying process against him, prays that he may answer it upon being attended with a copy. — For the purpose of preserving property in dispute pending a suit, or to prevent evasion of jus- tice, the court either makes a special order on the subject, or issues a provisional writ ; as the writ of injunction, to restrain the defendant from proceeding at the common law against the plaintiff, or from com- mitting waste, or doing any injurious act (z) ; the writ of fie exeat regno to restrain the defendant from avoiding the plaintiff's demands by quitting the king- dom^) ; and other writs of a similar nature. When

593; and Windsor v. Windsor, the writ of ne exeat regno should

Dick, 707. be prayed for by bill. Anon. 6.

(z) It is a general rule, that Madd. 276 ; unless the appli- thewritofinjunctionwillnotbe cation be made m a cause de- granted unless prayed for by a pending. Collinson v. , 1 8

bill which is already filed, Savory Ves. 353; Moore v. Hudson, 6

v. Dyer, Ambl. 70, or, under Madd. 218; see further on the

special circumstances, which subject of this writ. Hyde v.

the party applying undertakes Whitfield, lg Ves. 342. Raynes

to file forthwith, M'Natnara v. v. Wyse, 2 Meriv. 472. Flack

Arthur, 2 Ball & B. 349 ; but v. Holm, l Jac. & W. 405.

there are exceptions to this and the cases therein cited,

general rule, see Wright v. At- Leake v. Leake, 1 Jac. & W.

Icyns, iVes.&B.3l3. Casamajor 605. Graves v. Griffith, 1 Jac.

v. Strode, 1 Sim. & Stu. 381. A- & W. 646. Blaydes v. Calvert,

moryv. Brodrick, 1 Jac. R. 530. 2 Jac. & W. ai 1. Pannett v.

(<i) It seems requisite that Tayler, 1 Turn. R. 98.

SEVERAL KINDS OF BILLS. 47

a bill seeks to obtain the special order of the court, or a provisional writ, for any of these purposes, it is usual to insert, immediately before the prayer of pro- cess, a prayer for the order or particular writ which the case requires ; and the bill is then commonly named from the writ so prayed, as an injunction-bill, or a bill for a writ of ne exeat regno. Sometimes the writ of injunction is sought, not as a provisional re- medy merely, but as a continued protection to the rights of the plaintiff; and the prayer of the bill must then be framed accordingly.

These are the formal parts of an original bill as usually framed. Some of them are not essential, and particularly it is in the discretion of the person who prepares the bill, to allege any pretence of the de- fendant, in opposition to the plaintiff's claims, or to interrogate the defendant specially. The indiscri- minate use of these parts of a bill in all cases has given rise to a common reproach to practisers in this line, that every bill contains the same story three times told. In the hurry of business it may be difficult to avoid giving ground for the reproach; but in a bill prepared with attention the parts will be found to be perfectly distinct, and to have their separate and necessary operation.

The form of every kind of bill bears a resemblance to that of an original bill ; but there are necessarily some variations, either arising from the purposes for which the bill is framed, or the circumstances under which it is exhibited ; and those variations will be noticed, together with the peculiarities attending each kind of bill.

48 FRAME AND END OF THE

Every bill must be signed by counsel (//) ; and if it contains matter criminal, impertinent, or scan- dalous, such matter may be expunged, and the counsel ordered to pay costs to the party ag- grieved^). But nothing relevant is considered as scandalous (c).

2. Where two or more (d) persons claim (e) the same thing by different or separate interests (/), and another person, not knowing to which of the claim- ants he ought of right to render a debt or duty(g), or to deliver property in his custody (/*), fears he may

(a) Dillon v. Francis, Dick. 68. French v. Dear, 5 Ves. 547. 2 Ves. & B. 358. Kirkley v. Burton, 5 Madd. 378. n. Webster v. Threlfall, 1 Sim. & Stu. 135. Pitt v. Mackletv, 1 Sim. & Stu. 136. n. Lord Eldon declared that the signature of counsel to a bill is to be regard- ed as a security, that, judging from written instructions laid before him of the case of the de- fendant as well as of the plain- tiff, there appeared to him, at the time of framing it, good ground of suit. 3d June 1826. MSS. And see 3 Ves. 501.

(b) Ord. in Cha. Ed. Bea. 165. Emerson v. Dallison, 1 Ch. Rep. 194; 6 Madd. 252.

(c) 2 Vez. 24. 15 Ves. 477.

(d) Angell v. Hadden, 15 Ves. 244.

(e) See 2 Ves. Jun. 107. 15 Ves. 245. Stevenson v. Ander-

son, 2 Ves. & B. 407. Morgan v. Marsack, 2 Meriv. 107.

{f) And this may be where the claim of one is by virtue of an alleged legal, and that of the other upon an alleged equitable, right, Paris v. Gilham, Coop. R. 56. Martinius v. Helmuth, 2 Ves. & B. 412 (2d edit.) Mor- gan v. Marsack, 2 Meriv. 107.

(g) 1 Eq. Ca. Abr. 80. 2 Ves. Jun. 310 ; and see Fare- brother v. Prattent, 1 Dan. Exch. R. 64. Far ebr other v. Harris, ibid. 68.

(h) This will not extend to cases of bailment where the parties may be compelled to in- terplead at law. See Langston v. Boylston, 2 Ves. Jun. 101. 1 Meriv. 405. It may be obser- ved that he must not himself claim any interest in the pro- perty. Mitchell v. Hayne, 2 Sim. and Stu. 63.

SEVERAL KINDS OF BILLS. 49

be hurt by some of them(i), he may exhibit a bill of interpleader against them (A). In this bill he must state his own rights, and their several claims ; and pray that they may interplead, so that the court may adjudge to whom the thing belongs, and he may be indemnified. If any suits at law are brought against him, he may also pray that the claimants may be restrained from proceeding till the right is de- termined (/).

As the sole ground on which the jurisdiction of the court in this case is supported is the danger of injury to the plaintiff from the doubtful titles of the defendants, the court will not permit the proceeding to be used collusively to give an advantage to either party, nor will it permit the plaintiff to delay the pay- ment of money due from him, by suggesting a doubt to whom it is due ; therefore, to a bill of interpleader the plaintiff must annex an affidavit that there is no collusion between him and any of the parties (in) ; and if any money is due from him he must bring it into court, or at least offer so to do by his bill(y/).

(i) 1 Eq. Ca. Ab. 80. 2 Ves. & B. 410. 1 .Jac. R.

(k) 2 Eq. Ca. Ab.173. Cooper 205.

v. Chitty, 1 Burr. 20, and see (n) Prac. Reg. 79. Wy. Ed.

ib. 37. Prac. Reg. 78. Wy. Earl of Thanct v. Paterson,

Ed. 3 Barnard, 247. 2 Ves. J. 109.

(I) Prac. Reg. 78. Wy. Ed. Burnett v. Anderson, 1 Meriv.

■E. I. Comp. v. Edwards, 18 405. Waringtonv. Whcatstone,

Ves. 37G. Croggon v. Symo)is, 1 Jac. R. 202. E. I. Comp. v.

3 Madd. 130. See 1 Jac. R. Edwards, 18 Ves. 376. And see

205. Statham v. Hall, 1 Turn. R.

(jn) 2 Eq. Ca. Ab- 173. Er- 30. In some instances it seems,

rington v. AH. Gen. Bunb. 303. tbat if an injunction should

E

50 FRAME AND END OF THE

3. When an equitable right is sued for in an in- ferior court of equity, and by means of the limited jurisdiction of the court the defendant cannot have complete justice, or the cause is without the jurisdic- tion of the inferior court; the defendant (0) may file a bill in chancery, praying a special writ, called a writ of certiorari, to remove the cause into the court of chancery (p). This species of bill, having no other object than to remove a cause from an inferior court of equity, merely states the proceedings in the in- ferior court, shows the incompetency of that court, and prays the writ of certiorari. It does not pray that the defendant may answer, or even appear to to the bill, and consequently it prays no writ of sub- poena^). The proceedings upon the bill are pecu- liar, and are particularly mentioned in the books which treat of the practice of the court (r). It may seem improper to consider certiorari bills under the

have been prayed, it would (p) Prac. Reg. 41. Boh.

not be granted unless the Priv. Lond. 291. Hilton v.

money should have been ac- Lauson, Cary's Rep. 48. 1

tually paid into court, Dun- *ern. 178.

gey v. Angove, 3 Bro. C. C. 36. _ (?) There are cases men-

And it may be observed, that tioned in the books apparently

where the whole subject matter t0 the contrary ; but they seem

of the suit is money, and the not t0 have been cases of bills

same has been paid into court, Praying merely the writ of cer-

and the cause heard, the suit tiorari. See 1 Ca. inCha.31.

is at an end, so far as the (r) Prac- Reg- 82- Wy. Ed.

plaintiff is concerned. See Stephenson v. Hoidditck,2Vem.

Anon. 1 Vern. 351. 3 Barnard, 491- Woodcraft v. Kinaston,

250. 2 Atk. 317. Pierce v. Thomas,

(o) Sovoton v. Cutler, 2 Chan. 1 Jac. R. 54. Edwards v.

Rep. 108. Boiven, 2 Sim. & Stu. 514.

SEVERAL KINDS OF BILLS. r}\

head of bills praying relief; but as they always al- lege some incompetency of the inferior court, or in- justice in its proceedings (V), and seek relief against that incompetency or injustice, they seem more pro- perly to come into consideration under this head than under any other. In case the court of chan- cery removes the cause from the inferior court, the bill exhibited in that court is considered as an ori- ginal bill in the court of chancery, and is proceeded upon as such.

Original bills not praying relief have been already mentioned to be of two kinds, l, bills to perpetuate the testimony of witnesses; and 2, bills of discovery.

l . A bill to perpetuate the testimony of witnesses must state the matter touching which the plaintiff is desirous of giving evidence, and must show that he has some interest in the subject (t), and pray leave to examine witnesses touching the matter so stated, to the end that their testimony may be pre- served and perpetuated (u).

The bill ought also to show that the facts to

(s) l Vern. 442.

(t) Mason v. Goodburnc, Rep. Temp. Finch. 391. Smith v. Att. Gen. Mich. 1777, in Chan. As to the nature of the interest which is sufficient whereupon to institute such a suit, see 6 Ves. 2C0, -261. Lord Durs- ley v. Fitzhardinge, 6 Ves. 251. Allan v. Allan, 15 Ves. 130.

(u) Rose v. Gannel, 3 Atk. 439. 1 Sch. & Left. 316. As

relief is not prayed hy a bill to perpetuate the testimony of witnesses, Dalton v. Thomson, Dick. 97, the suit is termin- ated by their examination ; and of course, therefore, is not brought to a hearing, Hall v. Hoddesdon, 2 P. Wms. i()2. 2 Vez. 497. Anon. Ambl. 237. Vaughan v. Fitzgerald, 1 Sch. & Lefr. 316. Morrison v. Arnold, 19 Ves. 670.

E 2

52 FRAME AND END OF THE

'which the testimony of the witnesses proposed to be examined is conceived to relate cannot be imme- •diately investigated in a court of law, as in the case of a person in possession without disturbance (tr) ; or that before the facts can be investigated in a court of law the evidence of a material witness is likely to be lost, by his death, or departure from the realm (y). To avoid objection to a bill framed on the latter ground it seems proper to annex to it an affidavit of the circumstances by which the evidence intended t o be perpetuated is in danger of being lost (s) ; a

- {x) See Duke of Dorset v. ground of his having only one Girdler, Prec. in Cha. 531. witness to a matter on which 1 Sim. & Stu. 88. his claim depends, or, if he have {y) According to the latter more, on the ground of their part of this proposition the being aged, or too ill or infirm right of action may be either to attend in a court of law, and in the plaintiff or defendant in that he is therefore likely to equity. With reference to the lose their testimony before the defendant, the time of bringing time of trial, 1 Sim. & Stu. go, the action depending upon his in which case it seems that it will, the situation of the plaintiff ought to be stated in the bill would be similar to that in- that the action was brought be- timated in the former part of fore the same was filed. Angell the proposition in the text, v. Angell, 1 Sim. & Stu. 83. 1 Sim. & Stu. 89 ; and with On the general subject see the respect to the plaintiff, it must cases cited, 1 Sim. & Stu. 93, be understood to relate to the note, and Teale v. Teale, 1 Sim. case of his not being able at & Stu. 385. present to sustain an action, (z) Earl of Siiffblk v. Green, Coxx.Colley, Dick. 55. 1 Sim. 1 Atk. 450. An affidavit of & Stu. 114; for, if he should like circumstances is also re- have such present right, his quisite, where the object is object could only be what is merely the examination of the technically termed an exami- witnesses de bene esse. Angell cation de bene- esse, upon the v. Angell, 1 Sim. & Stu. 83 ;

SEVERAL KINDS OF BILLS. 53

practice adopted in other cases of bills which have a tendency to change the jurisdiction of a subject from a court of law to a court of equity, and which will be afterwards more particularly noticed. It seems another requisite to a bill of this kind that it should state that the defendant has, or that he pre- tends to have, or that he claims, an interest to con- test the title of the plaintiff in the subject of the proposed testimony (a).

2. Every bill is in reality a bill of discovery ; but the species of bill usually distinguished by that title is a bill for discovery of facts resting in the know- ledge of the defendant, or of deeds or writings, or other things in his custody or power, and seeking no relief in consequence of the discovery, though it may pray the stay of proceedings at law till the dis- covery should be made. This bill is commonly used in aid of the jurisdiction of some other court, as to enable the plaintiff to prosecute or defend an action at law(7>), a proceeding before the King in council (c), or any other legal proceeding of a nature merely civil (ciy before a jurisdiction which cannot compel a discovery on oath (e) ; except that the court has in some instances refused to give this aid to the ju- risdiction of inferior courts (f). Any person in pos- session of an estate, as tenant or otherwise, may file

and see Philips v. Careiv, 1 P. Wms. 117. Shirley v. Earl Ferrers, 3 P. Wms. 77.

(«) See Lord Dursley v. Fitzhardinge, 6 Ves. 251.

(b) 5 Madd. 18.

(c) 1 Ves. 205.
(d) 2 Ves. 398.
(e) Dunn v. Coates,	1 Atk.
288. 1 Vez. 205.	Anon .
2 Vez. 451.
(/) 1 Vez. 205.
E 3

54 FRAME AND END OF THE

a bill against a stranger, bringing an ejectment, to discover the title under which the ejectment may be brought ( g), though the plaintiff may not claim any title beyond that of mere tenant or occupant. A bill of this nature must state the matter touching which a discovery is sought, the interest of the plaintiff and defendant in the subject, and the right of the first to require the discovery from the other (Ji).

A bill seeking a discovery of deeds or writings sometimes prays relief, founded on the deeds or writings of which the discovery is sought. If the relief so prayed be such as might be obtained at law, if the deeds or writings were in the custody of the plaintiff, he must annex to his bill an affidavit that they are not in his custody or power, and that he knows not where they are, unless they are in the hands of the defendant (i) ; 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 (&).

If the title to the possession of the deeds and writings of which the plaintiff prays possession de- pends on the validity of his title to the property to which they relate, and he is not in possession of that property, and the evidence of his title to it is in his own power, or does not depend on the production of

(g) l Vez. 249. Dorman, 1 Sim. & Stu. 227.

(h) Cardale v. Watkins, 5 (k) Godfrey v. Turner? 1

Madd. 18; and see Moodaly Vern. 247. PVhitchurchv.Gold-

v. Moreton, Dick. C52, S. C. ing, 2 P. Wms. 541 . 1 Vez. 344.

1 Bro. C. C. 468. 3 Atk. 132. But see Aston v.

(i) i Vez. 344, Hook v. Lord Exeter, 6 Ves. 288.

SEVERAL KINDS OF BILLS. 55

the deeds or writings of which he prays the delivery, he must establish his title to the property at law before he can come into a court of equity for delivery of the deeds or writings (/).

II. Bills not original are either an addition to or a continuance of an orio-inal bill, or both. An im- perfection in the frame of a bill may generally be remedied by amendment ; but the imperfection may remain undiscovered whilst the proceedings are in such a state that an amendment can be permitted according to the practice of the court. This is par- ticularly the case where, after the court has decided upon the suit as framed, it appears necessary to bring some other matter before the court to obtain the full effect of the decision ; or, before a decision has been obtained, but after the parties are at issue upon the points in the original bill, and witnesses have been examined (in which case the practice of the court will not generally permit an amendment of the ori- ginal bill) {m)f some other point appears necessary to

(I) See Jones v. Jones, 3 clerical error, Alt. Gen. v. Neiv-

Meriv. 161. 1 Madd. R. 193. combe, 14 Ves. 1, will be al-

Croiv v. Tyrrell, 3 Madd. 179. lowed at the hearing of the

Field v. Beaumont, 1 Swanst. cause. In the case of an in-

•204. fant complainant, this liberty

(j«) See Chap. 4. An amend- it seems would be granted with-

ment for the purpose of add- out restriction, if for his benefit,

ing parties, Anon. 2 Atk. 15. Pritckard v. Quinchant, Ambl.

3 Atk. ill, 371. and Palk 147; and even in ordinary cases

v. Lord Clinton, 12 Ves. 48. great indulgence has in this

Davos v. Benn, 1 Jac. & W. 513. respect been shown. See Filkin

Wellbeloved v. Jones, 1 Sim. & v. Hill, 4 Bro. P.C. 640. Toml.

Stu. 40; or to correct a mere Ed. Palk v. Lord Clinton, 12

E 4

$6 FRAME AND END OF THE

be made, or some additional discovery is found re- quisite (n). And though a suit is perfect in its in- stitution, it may by some event subsequent to the filing of the original bill become defective, so that no proceeding can be had, either as to the whole, or as to some part, with effect ; or it may become abated, so that there can be no proceeding at all, either as to the whole, or as to part of the bill. The first is the case, when, although the parties to the suit may remain before the court, some event sub- sequent to the institution of the suit has either made such a change in the interests of those parties, or given to some other person such an interest in the matters in litigation, that the proceedings, as they stand, cannot have their full effect. The other is the case when, by some subsequent event, there is no person before the court by whom, or against whom, the suit, in the whole or in part, can be pro- secuted.

It is not very accurately ascertained in the books of practice, or in the reports, in what cases a suit

Ves. 48. Woollandsv .Crowcher, it earlier. See Longman v. Cal-

12 Ves.174. Hamiltom. Hough- liford, 3 Anstr. 807. Forrest,

Ion, 2 Bligh, P. C. 169. And Exch. R. 13. Lord Kilcourcy

with regard to the practice be- v. Ley, 4 Madd. 212. Dean

fore the hearing, it may be ob- of Christchurch v. Simonds, 2

served, that after the cause is Meriv. 467. Wright v. Howard,

at issue this court will not give 6 Madd. 106. M'Neill v. Ca-

the plaintiff leave to amend, hill, 2 Bligh, P. C. 228. SeeBar-

unless he shows not only the nett v. Noble, 1 Jac. &W. 227. materiality of the proposed al- (n) See Jones v. Jones, 3

teration, but also that he was Atk. 110. Goodwin v. Goodwin?

not in a condition to have made 3 Atk. 370.

SEVERAL KINDS OF BILLS. *ff _

becomes defective without being absolutely abated ; and in what cases it abates as well as becomes de- fective. But upon the whole it may be collected (o)> that if by any means any interest of a party to the suit in the matter in litigation becomes vested in another, the proceedings are rendered defective in proportion as that interest affects the suit ; so that al- though the parties to the suit may remain as before, yet the end of the suit cannot be obtained (p). And if such a change of interest is occasioned by, or is the consequence of, the death of a party whose interest is not determined by his death, or the marriage of a female plaintiff, the proceedings become likewise abated or discontinued, either in part or in the whole. For as far as the interest of a party dying extends, there is no longer any person before the court by whom or against whom the suit can be prosecuted ; and a married woman is incapable by herself of pro- secuting a suit. As the interest of a plaintiff generally extends to the whole suit, therefore, in general, upon the death of a plaintiff, or marriage of a female plain- tiff, all proceedings become abated (q). Upon the death of a defendant, likewise, all proceedings abate

(o) It is impossible to give grounds of the decisions war- authorities for every thing as- rant the conclusions here serted upon this head. The drawn.

books, in words, almost as fre- ^ As an example, see Mole

quently contradict as support v< SmUj^ 1 jaCi & W. 665.

these assertions. But it is con-

i ^ x- .i. .• ~ (</) 1 Eq. Ca. Ab. 1, margin,

ceived, that from an attentive v// * -"i: *■"* » &

perusal of the cases it will be Dick' 8' Adamon v« HuU9

found, that, in general, the l Sim' & Stu' *W

58 FRAME AND END OF THE

as to that defendant. But upon the marriage of a female defendant the proceedings do not abate (r), though her husband ought to be named in the subse- quent proceedings (s). If the interest of a party dying so determines that it can no longer affect the suit, and no person becomes entitled thereupon to the same interest which happens in the case of a tenant for life, or a person having a temporary or contingent interest, or an interest defeasible upon a contingency, the suit does not so abate as to require any proceeding to warrant the prosecution of the suit against the re- maining parties ; but if the party dying be the only plaintiff, or only defendant, there may be necessarily an end of the suit, no subject of litigation remaining. If the whole interest of a party dying survives to another party, so that no claim can be made by or against the. representatives of the party dying, as, if a

(r) 4 Vin. Ab. 147. PL 20. notwithstanding, proceeded in a

1 Vern. 318. suit as a feme sole, the mere

(s) 1 Vez. 182. The reason ivant of a bill of revivor is not

of the difference between the error for which a decree can be

cases of a female plaintiff and reversed upon a bill of review

defendant seems to be, that a brought by the defendant, Lady

plaintiff seeking to obtain a Cramborne v. Dalmahoy. 1

right, the defendant may be in- Chan. Rep. 231. Nels. Rep. 86.

jured by answering to one who " And at law, if a woman sues

is not entitled to sue for it ; but or be sued as sole, and judgment

a defendant merely justifying a is against her as such, though

possession, the plaintiff cannot she was covert, she shall be

be injured by a decree against estopped, and the sheriff shall

the person holding that posses- take advantage of the estoppel."

sion. And it has been deter- 1 Salk. 310. 1 Rol. Ab. 869.

mined, that where a female 1. 50. plaintiff has married, and has,

SEVERAL KINDS OF BILLS. 59

bill is filed by or against trustees or executors, and one dies not having possessed any of the property in question, or done any act relating to it which may be questioned in the suit, or by or against husband and wife, in right of the wife, and the husband dies under circumstances which admit of no demand by or against his representatives (t), the proceedings do not abate. So if a surviving party can sustain the suit, as in the case (u) of several creditors, plaintiffs on behalf of themselves and other creditors (#). For the persons remaining before the court, in all these cases, either have in them the whole interest in the matter in litigation, or at least are competent to call upon the court for its decree. If, indeed, upon the death of the husband of a female plaintiff suing in her right, the widow does not proceed in the cause, the bill is con- sidered as abated, and she is not liable to the costs ( y). But if she thinks proper to proceed in the cause, she may do so without a bill of revivor ; for she alone has the whole interest, and the husband was a party in her right, and therefore the whole advantage of the proceedings survives to her; so that if any judgment has been obtained, even for costs, she will be en- titled to the benefit of it (s). But if she takes any

(t) Dr. Pari) v. Jnxon, 3 generally, may be mentioned.

Chan. Rep. 40. 2 Freem. 133. See 11 Ves. 309. 1 Meriv. 364.

Shelberry v. Briggs, 2 Vern. (x) 1 Meriv. 364. Burney

249. Anon. 3 Atkyns, 726. v. Morgan, 1 Sim. & Stu. 358.

See Humphreys v. HoUis, \ 1 Sim. & Stu. 494, 495.

Jac. R. 73. (y) Treat, on Star-cham.

(11) As another example of p. 3. sect. 3. Harl. MSS.

the proposition in the text, the (2) Coppin v. ■ sP.Wras.

case of a suit by joint-tenants 496.

60 FRAME AND END OF THE

step in the suit after her husband's death she makes herself liable to the costs from the beginning. If a female plaintiff marries pending a suit, and after- wards, before revivor, her husband dies (a), a bill of revivor becomes unnecessary, her incapacity to pro- secute the suit being removed ; but the subsequent proceedings ought to be in the name and with the description which she has acquired by the marriage. A decree on a bill of interpleader may terminate the suit as to the plaintiff, though the litigation may continue between the defendants by interpleader (p) ; and in that case the cause may proceed without revivor (c), notwithstanding the death of the plain- tiff^).

There is the same want of accuracy in the books in ascertaining the manner in which the benefit of a suit may be obtained after it has become defective, or abated by an event subsequent to its institution,

(a) Godkin and others against considered as operating to abate Earl Ferrers, 1772. the suit. 3 Swanst. 138; and

(b) See above, p. 49. note (n.) see Blackburn v. Jepson, 17

, N . -it Ves. 473, S. C. 3 Swanst. 132.

(c) Anon. 1 Vern. 351. „ , ' , .„ . ,,!•'-■

v J °° But where a bill is filed by a

(d) Where on a bill filed by a corporation sole, having a per- corporation aggregate, suing in sonai interest, the suit neces- their corporate capacity only, sarily abates by his death, so the names of the persons form- far as it affects his personal ing the same had been inadver- interest, and to that extent tently and unnecessarily in- may be revived by his personal serted, the members of the representative ; and if the suit corporation having had indivi- affect the rights of his succes- dually no interest in the subject, sor, such successor may obtain the death of a person so impro- the benefit of it in a different perly named in the bill was not form.

SEVERAL KINDS OF BILLS. 6l

*as there is in the distinction between the cases where a suit becomes defective merely, and where it like- wise abates. It seems, however, clear, that if any property, or right in litigation, vested in a plaintiff, is transmitted to another, the person to whom it is transmitted is entitled to supply the defects of the suit, if become defective merely, and to continue it, or at least to have the benefit of it, if abated. It seems also clear, that if any property or right, before vested in a defendant, becomes transmitted to an- other, the plaintiff is entitled to render the suit per- fect, if become defective, or to continue it, if abated, against the person to whom that property or right is transmitted.

The means of supplying the defects of a suit, con- tinuing it if abated, or obtaining the benefit of it, are, l, by supplemental bill; 2, by bill of revivor ; 3, by bill of revivor and supplement ; 4, by original bill in the nature of a bill of revivor ; and, 5, by original bill in the nature of a supplemental bill. The distinc- tions between the cases in which a suit may be added to, or continued, or the benefit of it obtained, by these several means, seem to be the following :

1. Where the imperfection of a suit arises from a defect in the original bill, or in some of the pro- ceedings upon it, and not from any event sub- sequent to the institution of the suit, it may be added to by a supplemental bill merely (e). Thus a

(e) As a general rule, it has quently to the filing of the been laid down, that events original bill, ought not to be which have happened subse- made the subject of amendment,

62 FRAME AND END OF THE

supplemental bill may be filed to obtain a further discovery (f) from a defendant, to put a new matter in issue, or to add parties, where the proceedings are in such a state that the original bill cannot be amended for the purpose (g). And this may be done as well after as before a decree ; and the bill may be either, in aid of the decree, that it may be carried fully into execution (/*), or that proper directions may be given upon some matter omitted in the original bill (7), or not put in issue by it, or by the defence made to it (k) ; or to bring formal parties before the court (/) : or it may be used as a ground to impeach the de- cree, which is the peculiar case of a supplemental bill in the nature of a bill of review, of which it will be necessary to treat more at large in another place. But wherever the same end may be obtained by amendment the court will not permit a supplemental bill to be filed (w).

but that they should be brought 2 Ch. Rep. 142. Usborne v.

before the court by a supple- Baker, 2 Madd. R. 379.

mental bill. Humphreys v. (g) Goodwin v. Goodwin,

Humphreys, 3 P. Wms. 349. 3 Atk. 370. There is the

Brown v. Higden, 1 Atk. 291. form of a bill of this nature in

3 Atk. 217. Pilkington v. Wig- 1 Pres. Prac. of Chan. 146.

nail, 2 Madd. R. 240. Usborne {h) Woodward v. Woodward,

v. Baker, 2 Madd. R. 379. See Dick, 33. Or it may be filed for

a very peculiar case on this the purpose of appealing against

subject, in which the plaintiff, the decree. See Giffard v. Hort,

upon facts stated in the answer 2 Sch. & Lefr. 386.

of the defendant, amended his (i) 3 Atk. 133.

bill in order to meet the de- (*) Jones v. Jones, 3 Atk. 110.

fence which arose therefrom, (0 Ibid. 217«

Knight v. Matthews, 1 Madd. (m) See Baldwin v. Mack-

R. 566. own, 3 Atk. 817 ; see note last

(y) Boeve v. Skipwith page.

several Kinds of bills. tij

When any event happens subsequent to the time of filing an original bill(V), which gives anew in- terest in the matter in .dispute to any person not a party to the bill, as the birth of a tenant in tail, or a new interest to a party, as the happening of some other contingency, the defect may be supplied by a bill which is usually called a supplemental bill (o), and is in fact merely so with respect to the rest of the suit, though with respect to its immediate object, and against any new party, it has in some degree the effect of an original bill. If any event happens which occasions any alteration in the interest of any of the parties to a suit, and does not deprive a plaintiff suing in his own right of his whole interest in the subject, as in the case of a mortgage or other partial change of interest ; or if a plaintiff suing in his own right is entirely deprived of his interest, but he is not the sole plaintiff, the defect arising from this event may be supplied by a bill of the same kind, which is likewise commonly termed, and is, in some respects, a sup- plemental bill merely, though in other respects, and especially against any new party, it has also in some degree the effect of an original bill. In all these cases the parties to the suit are able to proceed in it to a certain extent, though from the defect arising

(?0 1 Atk. 291. 3 Atk. 217. such a nature, that the relief

See above, p. 61, note(e). sought in respect thereof can-

(0) It may here be remarked, not be obtained under the ori-

that such subsequent event ginal bill, Adams v. Dowding,

must not only be relevant, but 2 Madd. It. 53. Mole v. Smith,

material, see Milner v. Lord 1 Jac. & W. C65. Hareivood, 17 Ves. 144, and of

64 FRAME AND END OF THE

from the event subsequent to the filing of the original bill the proceedings are not sufficient to attain their full object.

If the interest of a plaintiff suing in aider droit entirely determines by death or otherwise, and some other person thereupon becomes entitled to the same property under the same title, as in the case of new assignees under a commission of bankrupt, upon the death or removal of former assignees (p), or in the case of an executor or administrator, upon the deter- mination of an administration durante minori cetate (q), or pendente lite, the suit may be likewise added to and continued by supplemental bill(r). For in these cases there is no change of interest which can affect the questions between the parties, but only a change of the person in whose name the suit must be pro- secuted ; and if there has been no decree, the suit may proceed, after the supplemental bill has been filed, in the same manner as if the original plaintiff had continued such, except that the defendants must answer the supplemental bill, and either admit or put in issue the title of the new plaintiff. But if a decree has been obtained before the event on which such a supplemental bill becomes necessary, though the decree be only a decree nisi, there must be a decree

(p) Anon. 1 Atk. 88. S. C. tration determined by death, a

1 Atk. 571. Brown v. Martin, bill of revivor by a subsequent

3 Atk. 218. administrator has been admit -

(q) See Jones v. Basset, Prec. ted. Owen v. Curzon, 2 Vern.

in Ch. 174. Cary's Rep. 22. 237. Huggins v. York Build.

Stubbsv. Leigh, 1 Cox, R. 133. Comp. 2 Eq. Ca. Ab. 3.

(r) In the case of an adminis-

SEVERAL KINDS OF BILLS. 6f,

on the supplemental bill, declaring that the plaintiff in that bill is entitled to stand in the place of the plaintiff in the original bill, and to have the benefit of the proceedings upon it, and to prosecute the decree, and take the steps necessary to render it effectual (s).

If a sole plaintiff suing in his oivn right is deprived of his whole interest in the matters in question by an event subsequent to the institution of a suit, as in the case of a bankrupt or insolvent debtor, whose whole property is transferred to assignees, or in case such a plaintiff assigns his whole interest to another, the plaintiff being no longer able to prosecute for want of interest (t), and his assignees claiming by a title which may be litigated, the benefit of the pro- ceedings cannot be obtained by a supplemental bill, but must be sought by an original bill(w) in the nature of a supplemental bill, which will be the subject of discussion in a subsequent page.

(s) Brotvn v. Martin, 3 stated a priori, that there will

Atk. 218. not be any surplus of the bank-

(t) Upon the question whether rupt's estate after satisfaction of

the bankruptcy of a sole plajn- the creditors, who may prove

tiff is, or ought to be considered, under the commission, it seems

an abatement of a suit, some impossible to insist, even where

difference of opinion has pre- a plaintiff suing in his own

vailed. See Sellas v. Dawson, right becomes a bankrupt, that,

rep. l Atk. Sand. Ed. 2O3. as a general rule, the suit

note, 4 Madd. 171, and the abates. And the truth of the

cases of Randall v. Mumford, proposition will be more appa-

18 Ves. 424, and Porter v. Cox, rent from what is further stated

5 Madd. 80, in which revivor in the next page of the text, seems to have been thought (u) See Harrison v. Ridley,

necessary. But as it cannot be Com. Rep. 589.

66 FRAME AND END OF THE

If a commission of bankrupt issues against any- party to a suit, or he is discharged as an insolvent debtor, his interest in the subject is, unless he is a mere trustee, generally transferred to his assignees (#) ; and to bring them before the court a supplemental bill is necessary, to which the bankrupt or insolvent debtor is not usually required to be a party, although a bankrupt may dispute the validity of the commis- sion issued against him(j/). But, if plaintiff, a bank- rupt may proceed himself in the suit, if he disputes the validity of the commission, or a bankrupt or in- solvent may proceed if the suit is necessary for his protection (z), or if his assignees do not think fit to prosecute the suit, and he conceives that it is for his

(x) 9 Ves. 86, l Ves. & B. parte M'Gennis, 18 Ves. 289.

547 ; and see, as to the excep- S. C. 1 Rose, B. C. 60. Ex

tions, Copeman v. Gallant, 1 parte Bryant, 2 Rose, B. C. 1.

P. Wms. 314. 2 P. Wms. 318. Ex parte Northam, 2 Ves. & B.

Ex parte Ellis, 1 Atk. 101. 124. S. C. 2 Rose, B. C. 140.

1 Atk. 159. 234. 6 Ves. 496. Ex parte Price, 3 Madd. 228.

Joy v. Campbell, 1 Sch. & Lefr. Ex parte Ranken, 3 Madd.

328. Ex parte Martin, 19 Ves. 371. Ex parte Bass, 4 Madd.

491. S. C. 2 Rose, B. C. 331. 270. Bayley v. Vincent, 5

Ex parte Gillett, 3 Madd. 28. Madd. 48. Ex parte Gale,

(y) The commission, how- J Glyn & J. 43. ever, cannot be actually im- (z) Anon. 1 Atk. 263. 1

peached by him in the suit: Madd. R. 425. And this seems

his proper mode of disputing its to be another reason, why it

validity is by an action at law, cannot be a general rule that

or by a petition to supersede the bankruptcy of the plaintiff

the same. See Hammond v. causes an abatement, even

Attxvood, 3 Madd. 158; and where he sues in his own

see Bryant v. Withers, 2 Maul right. & Selw. 123. 15 Ves. 468. Ex

SEVERAL KINDS OF BILLS. 67

advantage to prosecute it (a). Under those circum- stances, however, he must bring the assignees before the court by supplemental bill, as any benefit which may be derived from the suit must be subject to the demands of the assignees (b), unless he seeks his per- sonal protection only against a demand which cannot be proved, or which the person making the demand may not think fit to prove, under the commission issued against the bankrupt, or from which the in- solvent debtor may not be discharged (c).

And if by any event the whole interest of a de- fendant is entirely determined, and the same interest is become vested in another by a title not derived from the former party, as in the case of succession to a bishopric or benefice, or of the determination of an estate-tail, and the vesting of a subsequent re-

(a) Lowndes v. Taylor, 1 at least as a general rule, abate Madd. R. 423. S. C. 2 Rose, the suit, it unquestionably ren- B. C. 365. 432. If an uncer- ders it defective, 18 Ves. 427 ; tificated bankrupt should be and this court upon a special desirous that a suit in respect of application will dismiss the the property should be com- bill, (but, as it seems, without menced or prosecuted, and his costs,) unless the plaintiff make assignees should refuse to adopt his assignees, or upon notice that course, it seems, that to they make themselves parties attain his object, he must peti- thereto by supplemental bill tion for leave to use their names within a limited time, IVilliams for the purpose of the proceed- v. Kinder, 4 Ves. 387. .Row- ing, he indemnifying them, dull v. Mumford, 1 8 Ves. 424. 5 Ves. 587. 590. Berifield v. Wheeler v. Matins, 4 Madd. Solomons, 9 Ves. 77. 3 Madd. 171. Porter v. Cox, 5 Madd. 158. 80. S. C. 1 Buck, B. C. 469.

{b) Although, it seems, the Sharp v. Ilullelt, 2 Sim. & Stu.

bankruptcy of a plaintiff, suing 49G.

even in his own right does not, (c) See above, note (a).

F 2

68

FRAME AND END OF THE

mainder in possession, the benefit of the suit against the person becoming entitled by the event described must also be obtained by original bill in the nature of a supplemental bill : though if the defendant whose interest has thus determined is not the sole defendant, the new bill is supplemental as to the rest of the suit, and is so termed and considered. But if the interest of a defendant is not determined, and only becomes vested in another by an event subsequent to the institution of a suit, as in the case of alienation by deed or devise, or by bankruptcy or insolvency-, the defect in the suit may be supplied by supplemental bill, whether the suit is become defective merely, or abated as well as become de- fective (d). For in these cases the new party comes before the court exactly in the same plight and con- dition as the former party, is bound by his acts, and may be subject to all the costs of the proceedings from the beginning of the suit (e).

In all these cases, if the suit has become abated as well as defective, the bill is commonly termed a

(d ) See Rutherford v. Miller, 2 Anstr. 458. Russell v. Sharp, 1 Ves. & B". 500. Whitcombe v. Minchin, 5 Madd. 91. Foster v. Deacon, 6 Madd. 59. Tur- ner v. Robinson, 1 Sim. & Stu. 3. In the cases' of Monteith v. Taylor, 9 Ves. 615, and Rhode v. Spear, 4 Madd. 51, a motion on the part of the de- fendant, after his bankruptcy, that the bill might be dismissed,

was allowed to be proper under the circumstances ; which af- fords a ground, besides the rea- sons already intimated in rela- tion to the plaintiff becoming bankrupt, so far as they apply, for presuming that the bank- ruptcy of the defendant does not abate the suit, but merely renders it defective. (e) 1 Atk. 89.

SEVERAL KINDS OF BILLS. 6<)

supplemental bill in the nature of a bill of revivor, as it has the effect of a bill of revivor in continuing the suit.

2. Wherever a suit abates by death, and the in- terest of the person whose death has caused the abatement is transmitted to that representative which the law gives or ascertains, as an heir at law, exe- cutor or administrator, so that the title cannot be disputed, at least in the court of chancery, but the person in whom the title is vested is alone to be as- certained, the suit may be continued by bill of re- vivor merely. If a suit abates by marriage of a female plaintiff, and no act is done to affect the rights of the party but the marriage, no title can be dis- puted ; the person of the husband is the sole fact to be ascertained, and therefore the suit may be conti- nued in this case likewise by bill of revivor merely.

When a suit became abated after a decree signed and enrolled (/), it was anciently the practice to re- vive the decree by a subpoena in the nature of a scire facias (g), upon the return of which the party to whom it was directed might show cause against the reviving of the decree (Ji), by insisting that he was not bound by the decree (i), or that for some other reason it ought not to be enforced against him, or that the person suing the subpoena was not entitled to the benefit of the decree. If the opinion of the court was in his favour he was dismissed with costs. M"

(/) 1 Vez. 182. 184. (g) 11 Ves. 311.

(/?) See 1 Vern. 426. Saycr v. Sayer, Dick. 42* (i) Brown v. Vcnnudcn, 1 Ca. in Cha. 272.

F 3

70 FRAME AND END OF THE

it was against him (i), or if he did not oppose the reviving of the decree, interrogatories were exhibited for his examination touching any matter necessary to the procedings (k). If he opposed the reviving of the decree on the ground of facts which were dis- puted, he was also to be examined upon interroga- tories, to which he might answer or plead ; and issue being joined, and witnesses examined, the matter was finally heard and determined by the court. But if there had been any proceeding subsequent to the decree this process was ineffectual (/), as it revived the decree only, and the subsequent proceedings could not be revived but by bill ; and the enrolment of decrees being now much disused, it is become the practice to revive in all cases, indiscriminately, by bill (m).

3. If a suit becomes abated, and by any act be- sides the event by which the abatement happens the rights of the parties are affected, as by a settle- ment^), or a devise (0) under certain circumstances, though a bill of revivor merely may continue the suit so as to enable the parties to prosecute it, yet to bring before the court the whole matter necessary for its consideration, the parties must, by supple- mental bill, added to and made part of the bill of

(i) 1 Ca. in Cha. 273. Vern. 426. Pract. Reg. go.

(k) Anon. 2 Freem. 128. Wy. Ed.

(1) Croster v. Wister, 2 Chi. (?i) See Merrytuether v.

Rep. 67. Thorn v. Pitt, Sel. Mellish, 13 Ves. 161.

Ca. in Cha. 54. S. C. 2 Eq. Ca. (0) See Rylands v. Latouche,

Ab. 180. 2 Bligh, P. C. 566.

(m) See Dunn v. Allen, 1

SEVERAL KINDS OF BILLS. 7 1

revivor, show the settlement, or devise, or other act by which their rights are affected. And, in the same manner, if any other event which occasions an abate- ment is accompanied or followed by any matter ne- cessary to be stated to the court, either to show the rights of the parties, or to obtain the full benefit of the suit, beyond what is merely necessary to show by or against whom the cause is to be revived, that matter must be set forth by way of supplemental bill, added to the bill of revivor (p).

4. If the death of a party, whose interest is not determined by his death, is attended with such a transmission of his interest that the title to it, as well as the person entitled, may be litigated in the court of chancery, as in the case of a devise of a real estate (q), the suit is not permitted to be con- tinued by a bill of revivor. An original bill, upon which the title may be litigated (r), must be filed ; and this bill will have so far the effect of a bill of revivor, that if the title of the representative substi- tuted by the act of the deceased party is established, the same benefit may be had of the proceedings upon the former bill as if the suit had been continued by a bill of revivor (s).

(p) See Russell v. Sharp, Huet v. Lord Say and Scle,

1 Ves. & Bea. 500. Sel. Ca. in Cha. 53.

((/) Backhouse v. Middleton, (s) Clare v. Wordell, 2 Vern.

1 Ca. in Cha. 173. S. C. 3 Ch. 548. 1 Eq. Ca. Ab. 83, Min*

Rep- 39? & 2 Freem. 132. shull v. Lord Mohun, 2 Vern.

Mosely, 44. 672. C Bro. P. C. 36, Toml.

(r) 1 Eq. Ca. Ab. 2, pi. 2 & 7. Ed.

F 4

72 FRAME AND END OF THE

5. If the interest of a plaintiff or defendant, suing or defending in bis own right, wholly determines, and the same property becomes vested in another person not claiming under him, as in the case of an ' eccle- siastical person succeeding to a benefice, or a re- mainder-man in a settlement becoming entitled upon the death of a prior tenant under the same settle- ment (t), the suit cannot be continued by bill of revivor, nor can its defects be supplied by a supple- mental bill. For though the successor in the first case, and the remainder-man in the second, have the same property which the predecessor, or prior tenant, enjoyed, yet they are not in many cases bound by his acts, nor have they in some cases precisely the same rights. But, in general, by an original bill in the nature of a supplemental bill the benefit of the former proceedings may be obtained («). If the party whose interest is thus determined was not the sole plaintiff or defendant, or if the property which occasions a bill of this nature affects only a part of the suit, the bill, as to the other parties and the rest of the suit, is, as has been before observed, supple- mental merely. — There seems to be this difference between an original bill in the nature of a bill of re- vivor, and an original bill in the nature of a supple- mental bill. Upon the first the benefit of the former proceedings is absolutely obtained, so that the plead- ings in the first cause, and the depositions of wit-

(t) t Eq. Ca. Ab. 3. in marg. 205. Lloyd v. Johnes, 9 Ves. 37. Osborne v. Usher, 6 Bro. P. C. («) 9 Vez. 54, 55.

20. Toml. Ed. 1 Bro. P. C.

SEVERAL KINDS OF BILLS. 73

ne'sses, if any have been taken, may be used in the same manner as if filed or taken in the second cause Qv) ; and if any decree has been made in the first cause, the same decree shall be made in the second (y). But in the other case a new defence may be made ; the pleadings and depositions (z) cannot be used in the same manner as if filed or taken in the same cause ; and the decree, if any has been Obtained, is no otherwise of advantage than as it may be an induce- ment to the court to make a similar decree (a).

The voluntary alienation of property pending a suit by any party to it, is not permitted to affect the rights of the other parties if the suit proceeds without disclosure of the fact, except as the alienation may disable the party from performing the decree of the court (b). Thus, if pending a suit by a mortgagee to foreclose the equity of redemption, the mortgagor makes a second mortgage, or assigns the equity of redemption, an absolute decree of foreclosure against the mortgagor will bind- the second mortgagee, or assignee of the equity of redemption, who can only have the benefit of a title so gained by filing a bill for that purpose (f). But upon a bill by a mortgagor to redeem, if the mortgagee assigns pendente lite,

(r) See Hoidditch v. Marquis of London v. Perkins, 3 Bro.

ofDonegall, 1 Sim. & Stu.491. P. C. 602. Toml. Ed. as to

(y) Clare v. Wordell, 2 Vern. reading in one cause deposi-

548 ; Minshidl v. Lord Mohun, tions taken in another. 2 Vern. 672. 1 Eq. Ca. Ab. 83. (a) See Lloyd v. Johnes,

1 Atk. 89. 9 Vez. Jun. 37.

(z) Earl of Peterborough v. (b) 2 Ves. & B. 205, 206.

Duchess of Norfolk, Prec. in 4 Dow. P. C 435-

Chan. 212. See also Coke v. . .(c) 2 Atk. 175. n Ves. 199. Fountain, 1 Vern. 41 3, and City

74 FRAME AND END OF THE

the assignee must be brought before the court by the mortgagor, who cannot otherwise have a re-con- veyance of the mortgaged property (/;). Thebillneces- sary in the last case is merely supplementary ; but in the former, the bill must be an original bill in the nature of a cross-bill, to redeem the mortgaged pro- perty. If the party aliening be plaintiff in the suit, and the alienation does not extend to his whole interest, he may also bring the alienee before the court by a bill, which, though in the nature of an original bill against the alienee, will be supplemental against the parties to the original suit, and they will be necessary parties to the supplemental suit only so far as their interests may be affected by the aliena- tion^). Generally, incases of alienation pendente lite, the alienee is bound by the proceedings in the suit after the alienation, and before the alienee becomes a party to it (d) ; and depositions of witnesses taken after the alienation, before the alienee became a party the suit, may be used by the other parties against the alienee as they might have been used against the party under whom he claims (e).

Having considered generally the distinctions be-

(b) 11 Ves. 199; and see to the suit. Tooseyx.Burchell, Wetherell v. Collins, 3 Madd. ? Jac. R. 159.

255. (d) It may be observed, how-

(c) There is an instance, in ever, that the alienee may by which the court, in a case of this supplemental bill, in the nature kind, allowed an alienee of a of an original bill, make himself

plaintiff to participate in certain aVarty to. <*e Jluit- Fos{er v' : , ,. . , Deacon, o Madd. 50 ; and see

interlocutory proceedings, with- Binh y B ^ reported 2 Blighj

out previously requiring a sup- p. c. 593, note.

plemental bill to be filed for the (e) See Garth v. Ward, 2 Atk.

purpose of making him a party 1 74.

SEVERAL KINDS OF BILLS. 75

tween the several kinds of bills by which a suit become defective or abated may be added to or con- tinued, or by which the benefit of the suit may be obtained, it remains in this place to consider more particularly the frame of the first three of those kinds. The other two will form part of the subject to be considered under the next head.

1 . A supplemental bill must stat? the original bill, and the proceedings thereon ; and if the supplemental bill is occasioned by an event subsequent to the ori- ginal bill, it must state that event, and the consequent alteration with respect to the parties; and, in general, the supplemental bill must pray, that all the defend- ants may appear and answer to the charges it con- tains. For if the supplemental bill is not for a dis- covery merely, the cause must be heard upon the supplemental bill at the same time that it is heard upon the original bill, if it has not been before heard; and if the cause has been before heard, it must be further heard upon the supplemental matter (/). If indeed the alteration or acquisition of interest happens to a defendant, or a person necessary to be made a defendant, the supplemental bill may be exhibited by the plaintiff in the original suit against such person alone, and may pray a decree upon the particular supplemental matter alleged against that person only ( g) ; unless, which is frequently the case, the interests of the other defendants may be affected by that decree. Where a supplemental bill is merely for

(/) 3 Madd. R. Co. {g) See Brown v. Martin, 3 Atk. 2 1 7.

*j6 FRAME AND END OF THE

the purpose of bringing formal parties before the court as defendants, the parties defendants to the original bill need not in general be made parties to the supplemental (Ji).

2. A bill of revivor must state the original bill, and the several proceedings thereon, and the abatement ; it must show a title to revive (i), and charge that the cause ought to be revived, and stand in the same condition with respect to the parties in the bill o£ revivor as it was in with respect to the parties to the original bill at the time the abatement happened; and it must pray that the suit may be revived accordingly. It may be likewise necessary to pray that the defend- ant may answer the bill of revivor, as in the case of a requisite admission of assets by the repre- sentative of a deceased party (k). In this case, if the defendant does admit assets, the cause may proceed against him upon an order of revivor merely ; but if he does not make that admission, the cause must be heard for the purpose of obtaining the necessary ac- counts of the estate of the deceased party to answer the demands made against it by the suit ; and the prayer of the bill, therefore, in such case usually is, not only that the suit may be revived, but also, that in case the defendant shall not admit assets to answer the purposes of the suit, those accounts may be taken, and so far the bill is in the nature of an ori- ginal bill. If a defendant to an original bill dies before putting in an answer, or after an answer to which

(h) See Brown v. Martin, (i) Com. Rep. .590. 3 Atk. 217. (k) Prac. Reg. 90. Wy. Ed.

SEVERAL KINDS OE BILLS. 77

exceptions have been taken, or after an amendment of the bill to which no answer has been given, the bill of revivor, though requiring in itself no answer, must pray that the person against whom it seeks to revive the suit may answer the original bill, or so much of it as the exceptions taken to the answer of the former defendant extend to, or the amendment remaining unanswered.

Upon a bill of revivor the defendants must answer in eight days after appearance, and submit that the suit shall be revived, or show cause to the contrary ; and in default, unless the defendant has obtained an order for further time to answer, the suit may be re- vived without answer, by an order made upon motion as a matter of course (/). The ground for this is an allegation that the time allowed the defendant to answer by the course of the court is expired, and that no answer is put in ; it is therefore presumed that the defendant can show no cause against reviving the suit in the manner prayed by the bill (ni).

An order to revive may also be obtained in like manner if the defendant puts in an answer submitting to the revivor, or even without that submission, if he shows no cause against the revivor. Though the suit

(/) See Harris v. Pollard, is necessary to warrant any

3 P. Wins. 348. proceeding after abatement,

(m) The court, after abate- 1 Vez. 186, Roundellv. Currer, ment of a suit,has acted without 6 Ves. 250, except proceed- revivor in some instances, where ings to compel revivor, or to the rights of the parties have prevent injury to the surviv- been fully ascertained by ing parties, if the persons en- decree, or by subsequent pro- titled to revive neglect to do so. ceedings; but in general revivor

78 FRAME AND END OF THE

is revived of course in default of the defendant's answer within eight days, he must yet put in an answer if the bill requires it ; as, if the bill seeks an admission of assets, or calls for an answer to the original bill, the end of the order of revivor being only to put the suit and proceedings in the situation in which they stood at the time of the abatement, and to enable the plaintiff to proceed accordingly. And notwithstanding an order for revivor has been thus obtained, yet if the defendant conceives that the plaintiff is not entitled to revive the suit against him, he may take those steps which are necessary to pre- vent the further proceeding on the bill, and which will be noticed in treating of the different modes of defence to bills of revivor ; and though these steps should not be taken, yet if the plaintiff does not show a title to revive he cannot finally have the benefit of the suit when the determination of the court is called for on the subject (n).

If a decree be obtained against an executor for payment of a debt of his testator, and costs, out of the assets, and the executor dies, and his represen- tative does not become the representative of the testator, the suit may be revived against the repre- sentative of the testator, and the assets of the testator maybe pursued in his hands, without reviving against the representative of the original defendant (0).

After a cause is revived, if the person reviving finds the original bill to require amendment, and the pleadings are in such a state that amendment of the

(n) 3 P. Wras. 348.

(0) 3 Atk. 773; and see Johnson v. Peck, 2 Ves. 465.

SEVERAL KINDS OF BILLS. 79

bill would be permitted if the deceased party were living, the bill may be amended notwithstanding the death of that party, and matters may be inserted which existed before the original bill was filed, and stated as if the deceased party had been living (p).

After a decree a defendant may file a bill of re- vivor, if the plaintiffs, or those standing in their right, neglect to do it (q). For then the rights of the parties are ascertained, and plaintiffs and defendants are equally entitled to the benefit of the decree, and equally have a right to prosecute it (;•). The bill of revivor in this case, therefore, merely substantiates the suit, and brings before the court the parties ne- cessary to see to the execution of the decree, and to be the objects of its operations, rather than to litigate the claims made by the several parties in the original pleadings (s), except so far as they remain undecided. In the case of a bill by creditors on behalf of them- selves and other creditors, any creditor is entitled to revive (I). A suit become entirely abated may be

(p) Kelips v. Paine, 15 Williams v. Cooke, 10 Ves. 406.

March, 1745. Philips v.Derbie, Horivood v. Schmedcs, 12 Ves.

Dick. 98. 311. And see Gordon v. Ber-

(q) The general proposition, tram, 1 Meriv. 154. Adamson that a defendant or his repre- v. Hall, 1 Turn. It. 258. Bolton sentatives, if he or they have v. Bolton, 2 Sim. & Stu. 371. an interest in the further pro- (r) See, however, Anon. 3 secution of the suit, may re- Atk. 691, and Lord Stoivell v. vive, if the plaintiffs, or those Cole, 2 Vern. 29G. standing in their right, neglect (s) See Finch v. Lord Win- so to do, seems to be now fully chelsea, 1 Eq. Ca. Ab. 2. established. See Kent v. Kent, (t) That is, of course, after Prec. in Chan. 197. 1 Eq. he hath proved his debt. See Ca. Ab. 2. 2 Vern. 219. 297. Pitt and the creditors of the

80 FRAME AND END OF THE

revived as to part only of the matter in litigation, or* as to part by one bill, and as to the other part by another. Thus, if the rights of a plaintiff in a suit upon his death become vested, part in his real, and part in his personal, representatives, the real repre- sentative may revive the suit so far as concerns his title, and the personal so far as .his demand extends (u).

3. A bill of revivor and supplement is merely a compound of those two species of bills, and in its separate parts must be framed and proceeded upon in the same manner.

III. Bills in the nature of original bills, though occasioned by former bills, are of eight kinds : 1. Cross-bills. 2. Bills of review, to examine and reverse decrees signed and enrolled. 3. Bills in the nature of bills of review, to examine and reverse de- crees either signed and enrolled, or not, brought by persons not bound by the decrees. 4. Bills impeach- ing decrees upon the ground of fraud. 5. Bills to. suspend the operation of decrees on special circum- stances, or to avoid them on the ground of matter subsequent. 6. Bills to carry decrees into execution. 7. Bills in the nature of bills of revivor. And 8, bills in the nature of supplemental bills.

1. A cross-bill is a bill brought by a defendant against a plaintiff (V), or other parties in a former

Duke of Richmond, 1 Eq. Ca. revive. Burney v. Morgan,

Ab. 3 ; and see Dixon v. Wyatt, 1 Sim. & Stu. 358.

4 Madd. 392. 1 Sim. & Stu. (u) Ferrers v. Cherry, 1 Eq.

494. And, in such a suit, the Ca. Ab. 3, 4.

personal representative of one (x) It has been decided, that

of the plaintiffs deceased may a cross-bill may be filed in

SEVERAL KlN'EiS OF BILLS. 8l

bill depending-, touching the matter in question in that bill ( y). A bill of this kind is usually brought to obtain either a necessary discovery, or full relief to all parties, It frequently happens, and particu- larly if any question arises between two defendants to a bill, that the court cannot make a complete decree without a cross-bill or cross-bills to bring1 every matter in dispute completely before the court, litigated by the proper parties, and upon proper proofs. In this case it becomes necessary for some or one of the defendants to the original bill to file a bill against the plaintiff and other defendants in that bill, or some of them, and bring the litigated point properly before the court (z). A cross-bill should state the original bill, and proceedings there- on, and the rights of the paity exhibiting the bill which are necessary to be made the subject of cross litigation, or the ground on which he resists the claims of the plaintiff in the original bill, if that is the object of the new bill. But a cross-bill being generally considered as a defence (//), or as a pro- Chancery to an original bill in his answer, namely, where the the Exchequer. Gleggv. Legh, original bill is for specific per- 4 Madd. 193. Parker v . Leigh , formance, and he proves an 6 Madd. 1154 agreement different from that

( u) For an example of the insisted on by the plaintiff, and sense in which this proposition submits to perform the same, is to be understood, see Hilton for, in such a case, if the Court v. Barrow, l Ves. J. 284, and see decide in favour of that stated Tiggott v. Williams, G Madd. 95. by the defendant, it will decree

(z) There is an instance, the same to be executed, however, in which this Court Fife v. Clayton, 13 Ves. 546. will, it seems, contrary to the 15 Ves. 525. old practice, give the benefit of (n) 3 Atk. 812.

a cross-bill to a defendant upon

G

82 FRAME AN'D END OF THE

ceeding to procure a complete determination of a matter already in litigation in the court, the plaintiff is not, at least as against the plaintiff in the original bill, obliged to show any ground of equity to support the jurisdiction of the court (&).

A cross-bill may be filed to answer the purpose of a plea puis darrein continuance at the common law. Thus, where pending a suit, and after replication and issue joined, the defendant, having obtained a release, attempted to prove it viva voce at the hearing, it was determined that the release not being in issue in the cause, the court could not try the fact, or direct a trial at law for that purpose ; and that a new bill must be filed to put the release in issue. In the case before the court, indeed, the bill directed to be filed seems to have been intended to impeach the release on the ground of fraud or surprise, and therefore to have been a proceeding on the part of the plaintiff in the original bill. But it was clearly determined that without being put in issue in the cause by a new bill it could not be used in proof (c).

Upon hearing a cause it sometimes appears that the suit already instituted is insufficient to bring before the court all matters necessary to enable it fully to decide upon the rights of all the parties. This most commonly happens where persons in opposite interests are co-defendants, so that the

(b) Doble v. Potman, Hardr. See as to filing a supplemental 160. And see Sir John War- bill where a matter has not den's case, mentioned by Black- been properly put in issue, stone, in 1 Bl. Rep. 132. Jones v. Jones, 3 Atk. 110.

(c) Ilaijne v. Hayne, 3 Ch. 1 Jac, & W. 339. Rep. 19. 3 Svvanst. 472, 474.

SEVERAL KINDS OF BILLS. 8 J

court cannot determine their opposite interests upon the bill already filed, and the determination of their interests is yet necessary to a complete decree upon the subject-matter of the suit. In such a case, if upon hearing the cause the difficulty appears, and a cross-bill has not been exhibited to remove the difficulty, the court will direct a bill to be filed, in order to bring all the rights of all the parties fully and properly for its decision ; and will reserve the directions or declarations which it may be necessary to give or make touching the matter not fully in litigation by the former bill, until this new bill is brought to a hearing (d).

2. The object of a bill of review is to procure an examination and reversal of a decree (e) made upon a former bill, and signed by the person holding the great seal, and enrolled (/). It may be brought upon error of law appearing (g) in the body of the

(d) If a creditor who hath Windsor v. Inhabitants of Fa rn- come in under a decree against ham, Cro. Car. 40. Saul v. his debtor require relief for the Wilson, 2 Vern. 118. Nor, purpose of assisting the inves- upon a decree of this Court ligations before the master, confirming a judgment of the which cannot be obtained by a lord mayor, respecting tithes in re-hearing of the original cause, London, under the statute 37 he may, without direction of the Hen. 8. c. 12. Pridgeon's court, seek it by a cross-bill. Case, Cro. Car. 351. Latouche v. Lord Dunsany, (f) Tothill, 47. Boh. Curs. 1 Sch. & Lefr. 137. Cane. 353. Taylor v. Sharp,

(e) There can be no bill of 3 P. Wms. 371.

review upon a decree of the (g) 1 Roll. Ab. 382. Vena-

court on exceptions to a decree bles v. Foyle, 1 Ca. in Cha. 4. of commissioners of charitable Tothill, 41. uses, under the statute. See

(; -2

84 FRAME AND END OF THE

decree itself (//), or upon discovery of new matter (/). In the first case the decree can only be reversed upon the ground of the apparent error (k) ; as if an abso- lute decree be made against a person, who upon the face of it appears to have been at the time an infant (/). A bill of this nature may be brought without the leave of the court previously given (pi). But if it is sought to reverse a decree signed and enrolled, upon discovery of some new matter (p)} the leave of the court must be first obtained (6) ; and this will not be granted but upon allegation upon oath that the new matter (p) could not be produced, or used (q) by the party claiming the benefit of it at the time when the decree was made (r). If the court is satisfied that the new matter is relevant and material, and such as might probably have

(h) Grice v. Goodwin, Prec. in Chan. 260. 3 P. Wms. 371.

(i) Le Neve v. Norris, 2 Bro. P. C. 73. To ml. Ed. And see 17 Ves. 178. This term in- cludes new evidence of facts put in issue, which would ma- terially affect the judgment of the court, 16 Ves. 350. See Orel v. Noel, 6 Madd. 127, which, although a case relating to a supplemental bill in the nature of a bill of review, seems to show that the matter must be material, and such at the least as will raise a fit sub- ject for judgment in the cause.

(k) Lady Cramborne v. Dal- mahoy, 1 Ch. Rep. 231. Nels.

Rep. 86. Prac. Reg. 94. Wy. Ed. 4 Vin. Ab. 414.

{I) Prac. Reg. 225. Wy. Ed. 17 Ves. 178.

(m) 2 Atk. 534. Houghton v. West, 2 Bro. P. C. 88. Toml. Ed.

(n) 2 Vez. 576. 3 P. Wms. 372. Nels. Rep. 52.

(0) Tothill, 42. 2 Atk. 534. 17 Ves. 177.

(p) See O'Brien v. 0'Connory 2 Ball & B. 146.

(q) See 1 Vez. 434. Pat- terson Sf Slaughter, Ambl. 292, and 16 Ves. 350.

(r) 2 Bro. P. C. 71. Toml. Ed. Pract. Reg. 95. Wy. Ed. Ambl 293,

SEVERAL KINDS OF BILLS. 85

occasioned a different determination (q) it will permit a bill of review to be filed (;•).

Error in matter of form only, though apparent on the face of a decree, seems not to have been con- sidered as sufficient ground for reversing: the decree (s) ; and matter of abatement has also been treated as not capable of being shown for error to reverse a decree (t).

It has been questioned whether the discovery of new matter not in issue in the cause in which a decree has been made, could be the ground of a bill of review (u) ; and whether the new matter on which bills of review have been founded has not always been new matter to be used as evidence to prove matter in issue, in some manner, in the original bill Qp). A case, indeed, can rarely happen in which new matter discovered would not be, in some degree, evidence of matter in issue in the original cause, if the pleadings were properly framed. Thus, if after a decree, founded on a revocable deed, a deed of revocation, and new limitations, were discovered ; as it would be a necessary allegation of title under

(q) Lord Portsmouth v. Lord (s) Jones v. Kenrick, 5 Bro>.

Effingham, 1 Vez. 430. Ben- P. C. 244, Toml. Ed. but the

net v. Lee, 2 Atk. 529. And cause was compromised. Hart-

seeWillanv.Willan,l6Ves.S6. well v. Townsend, 2 Bro. P. C

(r) Lord Portsmouth v. Lord 107. Toml. Ed.

Effingham, 1 Vez. 430. Young (t) Slingsby v. Hale, 1 Ca.

v. Keighly, 16 Yes. 348. But in Cha. 122, S. C. 1 Eq. Ca.

leave to file a bill of review is Ab. 164.

matter of discretion with the (u) See 16 Ves. 354.

court. See Wilson v. Webb, 2 (x) Ambl. 293. Cox, R. 3.

c 3

86 FRAME AND END OF THE

the revocable deed that i'c had not been revoked, the question of revocation would have been in issue in the original cause, if the pleadings had been properly framed. So if after a decree founded on a supposed title of a person claiming as heir, a settle- ment or will were discovered which destroyed or qualified that title, it would be a necessary alle- gation of the title of the person claiming as heir, that the ancestor died seised in fee-simple, and intestate. But if a case were to arise in which the new matter discovered could not be evidence of any matter in issue in the original cause, and yet clearly demonstrated error in the decree, it should seem that it might be used as ground for a bill of review, if relief could not otherwise be obtained Qe). It is scarcely possible, however, that such a case should arise which might not be deemed in some degree a case of fraud, and the decree impeachable on that ground. In the case where the doubt before mentioned appears to have been stated, the new matter dis- covered, and alleged as ground for a bill of review,

(x) This Court refused its And see Orel v. Noel, 6 Madd.

leave to file a bill of review, 127, and Bingham v. Datoson,

where it would have been the 1 Jac. R. 243, which, although

means of introducing an en- cases relating to supplemental

tirely new case, of the matter bills in the nature of bills of

of which the plaintiff was review, illustrate this principle,

sufficiently well apprized to See also Ludlotv v. Lord Ma-

have been able, with the exer- cartney, 2 Bro.C. C. 67. Toml.

tion of reasonable diligence, to Ed. Le Neve v. Norris, 1 Bro.

have brought the same at first P. C. 73. Toml. Ed. M'Neill

completely before the Court, v. Cahill, 2 Bligh, P. C. 228. Young v. Keighly, 16 Ves. 348.

SEVERAL KINDS OF BILLS; 87

was a purchase for valuable consideration, without notice of the plaintiff's title : this could only be used as a defence ; and it seems to have been thought that although it might have been proper, under the circumstances, if the new matter had been discovered before the decree, to have allowed the defendant to amend his answer and put it in issue, yet it could not be made the subject of a bill of re- view ; because it created no title paramount to the title of the plaintiff', but merely a ground to induce a court of equity not to interfere. And where a settle- ment had been made on a marriage in pursuance of articles, and the settlement following the words of the articles had made the husband tenant for life, with remainder to the heirs-male of his body, and the husband claiming as tenant in tail under the settlement had levied a fine, and devised to trustees, principally for the benefit of his son, and the trustees had obtained a decree to carry the trusts of the will into execution against the son, the son afterwards, on discovery of the articles, brought a bill to have the settlement rectified according to the articles, and a decree was made accordingly. In this case the new matter does not appear to have been evidence of matter in issue in the first cause, but created a title adverse to that on which the first decree was made (j/).

(y) Roberts v. Kingsly, court ; and on the hearing an 1 Vez. 238. If this case is inquiry was directed as to the accurately reported, the bill fact of the discovery of the ar- sccnis to have been filed with- tides. See Young v. Kcigldy, out the previous leave of the lC Vcs. 348.

G 4

88 FRAME AND END OF THE

A bill of review upon new matter discovered has been permitted even after an affirmance of the decree in parliament (z) ; but it may be doubted whether a bill of review upon error in the decree itself can be brought after affirmance in parliament (a). If upon a bill of review a decree has been reversed, another bill of review may be brought upon the decree of re- versal^). But when twenty years have elapsed from the time of pronouncing a decree, which has been signed and enrolled, a bill of review cannot be brought (c) ; and after a demurrer to a bill of review has been allowed, a new bill of review on the same ground cannot be brought (V). It is a rule of the court, that the bringing a bill of review shall not prevent the execution of the decree impeached ; and if money is directed to be paid, it ought regularly to be paid before the the bill of review is filed, though it may afterwards be ordered to be refunded (e).

In a bill of this nature it is necessary to state (/) the former bill, and the proceedings thereon ; the decree, and the point in which the party exhibiting the bill of review conceives himself aggrieved by

(z) Barbon v. Searle, l Vern. Carroll, 2 Bro. P.C. 98. Toml.

416 ; and see 16 Ves. 89. Ed. Lytton v. Lytton, 4 Bro.

(a) 1 Vern. 418. C. C. 441.

lb) 2 Chan. Pract. 633. And (d) Bunny v. Filmore,

see Neal v. Robinson, Dick. 1 Vern. 135.

15 ; but see 1 Vern. 417. (<?) Ord. in Cha. Ed. Bea. 3.

(c) Sherrington v. Smith, 2 Brown P. C. 65. Toml. Ed.

2 Bro. P. C. 62. Toml. Ed. note.

Smythe v. Clay, 1 Bro. P. C. (f) 2 Prax. Aim. Cur. Can.

453. Toml. Ed. Edwards v. 520. 2 Chan. Prac. 629,

SEVERAL KIXDS OF BILLS. 89

it(g) ; and the ground of law, or new matter dis- covered, upon which he seeks to impeach it ; and if the decree is impeached on the latter ground, it seems necessary to state in the bill the leave obtained to file it(//), and the fact of the discovery (i). It has been doubted whether after leave given to file the bill, that fact is traversable ; but this doubt may be questioned if the defendant to the bill of review can offer evidence that the matter alleged in the bill of review was within the knowledge of the party who might have taken the benefit of it in the original cause (A*). The bill may pray simply that the de- cree may be reviewed, and reversed in the point complained of, if it has not been carried into execu- tion^). If it has been carried into execution the bill may also pray the further decree of the court, to put the party complaining of the former decree into the situation in which he would have been if that decree had not been executed. If the bill is brought to review the reversal of a former decree, it may pray that the original decree may stand (in). The bill may also, if the original suit has become abated, be at the same time a bill of revivor (w). A supple-

fa-) 4 Vin. Ab. 414. PI. 5.

(h) See 1 Vern. 292. Boh. Curs. Cane. 396, 397.

(i) Hanbury against Stevens, Trin. 1784, in Chancery.

(k) In the above-mentioned case of Hanbury and Stevens, which was upon a supplemental bill in nature of a bill of review, the court seemed to be of opi- nion that the fact of the dis-

covery was traversable ; and not being admitted by the de- fendant, ought to have been proved by the plaintiff to en- title him to proceed to the hearing of the cause.

(/) 17 Ves. 177.

(m) 2 Chan. Prac. 634.

(n) 2 Prax. Aim. Cur. Cane. 522.

gO FRAME AND END OF THE

mental bill may likewise be added, if any event has happened which requires it (o) ; and particularly if any person not a party to the original suit becomes interested in the subject, he must be made a party to the bill of review by way of supplement (p).

To render a bill of review necessary the decree sought to be impeached must have been signed and enrolled. If, therefore, this has not been done, a decree may be examined and reversed upon a species of supplemental bill, in nature of a bill of review, where any new matter has been discovered since the decree (q). As a decree not signed and enrolled may be altered upon a re-hearing, without the assistance of a bill of review, if there is sufficient matter to re- verse it appearing upon the former proceedings (r),

(o) Price v. Keyte, 1 Vern. fore the court when the decree

135. was made, Wood v. Griffiths,

(p) Sands v. Thoroivgood, 1 Meriv. 35, and the grounds

Hardr. 104. on which the re-hearing is

(q) 2 Atk. 40. 178. 3 Atk. prayed, 1 Sch. & Left. 398.

811. Gartside v. Ishertoood, And here it may not be impro-

Dick. 612. 17 Ves. 177. Or, per to notice, that the court

at the least, the new matter will not, without consent, 3

should have been discovered Swanst. 234, vary a decree after

after the time when it could it has been passed and entered,

have been introduced into the except as to mere clerical

original cause. Ord v. Noel, errors, Lane v. Hobbs, 1 2 Ves.

6 Madd. 127, and see Barring- 458, Weston v. Haggerston,

ton v. O'Brien; 2 Ball & B. Coop. R. 134, Hawker v.

140. Duncombe, 2 Madd. R. 391,

(r) The re-hearing, which is 3 Swanst. 234, Tomlins v. Palk, thus far alluded to, not being 1 Russ. R. 475, or, matters of sought in respect of any new course, 7 Ves. 293, PicJcard v. matter, is obtained upon certifi- Mattheson, 7 Ves. 293, Neiu- cate of counsel, 18 Ves. 325, house v. Mitford, 12 Ves. 456, by a petition merely, which unless, upon a petition of re- states the case as brought be- hearing, or upon a bill of

SEVERAL KINDS OF BILLS. 91

the investigation of the decree must be brought on by a petition of re-hearing (s) : and the office of the supplemental bill, in nature of a bill of review, is to supply the defect which occasioned the decree upon the former bill (t). It is necessary to obtain the leave of the court to bring a supplemental bill of this nature (u), and the same affidavit is required for this purpose as is necessary to obtain leave to bring a bill of review on discovery of new matter (#). The bill in its frame nearly resembles a bill of review, except that instead of praying that the former decree may be reviewed and reversed, it prays that the cause may be heard with respect to the new matter made the subject of the supplemental bill, at the same time that it is re-heard upon the original bill,

review, or bill in the nature of a bill of review, 4 Madd. 32, Grey v. Dickenson, 4 Madd. 464, Braclcenbury v. Bracken- bury, 2 Jac. & W. 391, Willis v. Parkinson, 3 Swanst. 233, Broolcfield v. Bradley, 2 Sim. & Stu. 64, according as the decree has or has not been signed and enrolled ; and as it is sought to have the case re-heard as originally brought before the court, or accom- panied with new matter. See Text.

(s) Taylor v. Sharp, 3 P. Wms. 371. 2 Ves. 598. Gore v. Purdon, 1 Sch. & Lefr. 234. 2 Jac. & W. 393. It must be remarked that where there is

new matter, a petition to re- hear the original cause must be presented, and be brought be- fore the court at the same time as the supplemental bill, in the nature of a bill of review, Moore v. Moore, Dick. 66. 17 Ves. 178.

(t) Standish v. Radley, 2 Atk. 177.

(u) Order, 17 Oct. 1741. Ord. in Cha. Ed. Bea. 366. 2 Atk. 139, n. 3 Atk. 811. 2 Vez. 597, 598. Bridge v. Johnson, 17 Dec. 1737*

(x) As to the general prin- ciples adopted by the court in relation to bills of this kind, see Ord v. AW, 6 Madd. 127. Bingham v. Dawson, 1 Jac. R. 243.

92 FRAME AND END OF THE

and that the plaintiff may have such relief as the nature of the case made by the supplemental bill requires (j/).

3. If a decree is made against a person who had no interest at all in the matter in dispute, or had not such an interest as was sufficient to render the decree against him binding upon some person claiming the same or a similar interest (z), relief may be obtained against error in the decree by a bill in the nature of a bill of review (a). Thus, if a decree is made against a tenant for life only, a remainder-man in tail, or in fee, cannot defeat the proceedings against the tenant for life but by a bill showing the error in the decree, the incompetency in the tenant for life to sustain the suit, and the accruer of his own interest, and there- upon praying that the proceedings in the original cause may be reviewed, and for that purpose that the other party may appear to and answer this new bill, and the rights of the parties may be properly ascer- tained. A bill of this nature, as it does not seek to alter a decree made against the plaintiff himself, or against any person under whom he claims, may be filed without the leave of the court (/»).

4. If a decree has been obtained by fraud it may be impeached by original bill (c) without the leave of

(y) See 17 Ves. 177, 178. (<:) 1 P.Williams, 736. Loyd

(2) Broion v. Vermuden, 1 v. Mansell, 2 P. Wms. 73. 3 P.

Ca. in Cha. 272. Wms. ill. Wichalse v. Short*

(a) See 17 Ves. 178. 3 Bro. P. C. 558. Toml. Ed ;

(b) Osborne v. Usher, 6 Bro. and see Kennedy v. Daly, 1. P. C. 20. Toml. Ed. Sch. & Lefr. 355, and Giffard

SEVERAL KINDS OF BILLS. 93

the court (d) ; the fraud used in obtaining the decree being the principal point in issue, and necessary to be established by proof before the propriety of the decree can be investigated. And where a decree has been so obtained the court will restore the parties to their former situation, whatever their rights may be (e). Beside cases of direct fraud in obtaining a decree, it seems to have been considered, that where a decree has been made against a trustee, the cestui que trust not being before the court, and the trust not discovered, or against a person who has made some conveyance or encumbrance not discovered, or where a decree has been made in favour of or against an heir, when the ancestor has in fact disposed by will of the subject-matter of the suit, the concealment of the trust, or subsequent conveyance, or encum- brance, or will, in these several cases, ought to be treated as a fraud (f). It has been also said that where an improper decree has been made against an infant, without actual fraud, it ought to be impeached

v. Hort, 1 Sch. & Lefr. 38G. (e) Birne v. Hartpole, 5 Bro.

In 3 P.Wms. 1 1 1, it is said that P. C. 197. Toml. Ed. ; and see

a decree in such case may be Powell v. Martin, 1 Jac. & W.

set aside on petition ; but this 292. And it may be remarked,

was probably meant to extend that where the enrolment of

only to the case of a decree not the decree by the one party

signed and enrolled, and where is a fraud or surprize upon

the fact of fraud could not be the other, it will be vacated,

controverted. See Mussel v. Stevens v. Guppy, 1 Turn. R.

Morgan, 3 Bro. C. C. 74. 178.

2 Sch. & Lefr. 574.* (f) See Style v. Martin, 1

(d) 3 Atk. 811. 1 Vez. 120. Ca. in Cha. 150. Earl of Car*

Ca. Temp. Talbot, 201. lisle v. Goble, 3 Cha. Rep. 94.

94 FRAME AND END OF THE

by original bill (g). When a decree has been made by consent, and the consent has been fraudulently obtained, the party grieved can only be relieved by original bill (h).

A bill to set aside a decree for fraud must state the decree, and the proceedings which led to it, with the circumstances of fraud on which it is impeached. The prayer must necessarily be varied according to the nature of the fraud used, and the extent of its ope- ration in obtaining an improper decision of the court.

5. The operation of a decree signed and enrolled has been suspended on special circumstances, or avoided by matter subsequent to the decree, upon a new bill for that purpose. Thus, during the troubles after the death of Charles the First, upon a decree for a foreclosure in case of non-payment of principal, interest and costs, due on a mortgage, the mortgagor at the time of payment being forced to leave the king- dom to avoid the consequences of his engagements with the royal party, and having requested the mort- gagee to sell the estate to the best advantage and pay himself, which the mortgagee appeared to have ac- quiesced in ; the court, upon a new bill, enlarged the time for performance of the decree, upon the ground of the inevitable necessity which prevented the mort- gagor from complying with the strict terms of it, and also made a new decree on the ground of the matter subsequent to the former decree (1).

(g) 1 P. Wms. 737. 2 Vez. (i) Cocker v. Bevis, 1 Ca. in

232. Cha. 61. See also Venables

{h) Ambl. 229. v. Foyle, 1 Ca. in Cha. 3 ; and

SEVERAL KINDS OF BILLS. 95

6. Sometimes, from the neglect of parties, or some other cause, it becomes impossible to carry a decree into execution without the further decree of the court (A). This happens, generally, in cases where the parties having neglected to proceed upon the de- cree, their rights under it become so embarrassed by a variety of subsequent events, that it is necessary to have the decree of the court to settle and ascertain them. Sometimes such a bill is exhibited by a person who was not a party, nor claims under any party to the original decree, but claims in a similar interest, or is unable to obtain the determination of his own rights till the decree is carried into execution (/). Or it may be brought by or against a person claiming as assignee of a party to the decree (?n). The court in these cases in general only enforces, and does not vary, the de- cree ; but on circumstances it has sometimes considered

Whorevoood v. Whoreivood, 1 relief; and all cases determined Ca. in Cha. 250; Wakelin v. soon after the Restoration, upon Walthal, 2 Ca. in Cha. 8. The circumstances connected with embarrassments occasioned by the prior disturbed state of the the civil war in the reign of country, ought to be considered Charles I, and the state of af- with much caution, fairs after his death, before the (k) 2 Chanc. Rep. 128. 2 restoration of Charles II. occa- Vern. 409. sioned many extraordinary ap- (I) See peculiar case of im- plications to the court of chan- lands v. Latouche, 2 Bligh, P. C. eery for relief, and perhaps in- 566.

duced the court to go far in ex- (m) Organv. Gardiner, 1 Ca.

tending relief; but there were in Cha. 231. Lord Carteret v.

many cases of extreme hard- Paschal, 3 P. Wins. 197. S. C.

ship in which it was deemed on appeal, 2 Bro. P. C 10.

impossible, consistently with Toml. Ed. Binks v. Binls, rep.

established principles, to give 2 Bligh, P. C. 593, note.

96 FRAME AND END OF THE

the directions, and varied them in case of a mistake^) ; and it has even on circumstances refused to enforce the decree (0); though in other cases the court, and the House of Lords, upon an appeal, seem to have con- sidered that the law of the decree ought not to be examined on a bill to carry it into execution (p). Such a bill may also be brought to carry into execution the judgment of an inferior court of equity (y) if the jurisdiction of that court is not equal to the purpose; as in the case of a decree in Wales, which the de- fended avoided by flying into England (r) : but in this case the court thought itself entitled to examine the

(n) See, for example, Hamil- ton v. Houghton, 2 Bligh, P. C. 1 64 ; and see Sel. Ca. in Cha. 1 3.

(0) Att. Gen. v. Day, 1 Vez. 218. 1 Vez. 245. Johnson v. Northey, Prec. inCh. 134. S.C. 2 Vern. 407. In the last case the Lord Keeper (1700) seemed to think that a bill by creditor . to carry into execution a decree in favour of their debtor, had

opened that decree In the

case of Sir John IVorden v. Gerard, in Ch. 1718, the in- terests of an infant party being affected by the decree, the court refused to carry it into execu- tion upon a bill for that pur- pose, and made a decree ac- cording to the rights of the parties. See Lechmerey.Brasier, 2 Jac. & W. 287. But in Shep- hardv. Titley, 2 Atk. 348, on a

bill to foreclose a mortgage, after a bill to redeem, on which a de- cree had been made, the bill of foreclosure insisting on an en- cumbrance not noticed in the former cause, the latter was on hearing ordered to stand over, that the question might be brought on by re-hearing of the former cause, or by bill of re- view.

(p) 2 Vez. 232, Smythe v. Clay, 1 Bro. P. C. 453. Toml. Ed. See also Minshullv. Lord Mohun, 2 Vern. 672, and S. C. on appeal, 6 Bro. P. C. 32. Toml. Ed.

(?) 1 Roll. Ab. 373.

(r) Morgan

1 Atk.

408. The case referred to of a decree in Wales seems to have been a case of Halford

v. Morgan.

SEVERAL KINDS OF BILLS. OJ

justice of the decision, though affirmed in the House of Lords (s).

A bill for this purpose is, generally, partly an original bill, and partly a bill in the nature of an original bill, though not strictly original (t); and sometimes it is likewise a bill of revivor, or a supple- mental bill, or both. The frame of the bill is varied accordingly.

7. It has been already mentioned (//), that when the interest of a party dying is transmitted to another in such a manner that the transmission maybe litigated in this court, as in the case of a devise, the suit can- not be revived by or against the person to whom the interest is so transmitted : but that such person, if he succeeds to the interest of a plaintiff, is entitled to the benefit of the former suit ; and if he succeeds to the interest of a defendant, the plaintiff is entitled to the benefit of the former suit against him ; and that this benefit is to be obtained by an original bill in nature of a bill of revivor. A bill for this purpose must state the original bill, the proceedings upon it, the abatement, and the manner in which the interest of the party dead has been transmitted ; and it must charge the validity of the transmission, and state the rights which have accrued by it. The bill is said to be original merely for want of that privity of title between the party to the former and the party to the

(s) See Douglas, G. upon an original bill. 1 Sim. Sc

(t) In the case of Pott v. Stu. 206. Gallini, a decree in a former («) See above, p. 71.

euit was, in effect, extended

H

C)3 FRAME AND END OF THE

latter bill, though claiming the same interest, as would have permitted the continuance of the suit by a bill of revivor. Therefore, when the validity of the alleged transmission of interest is established, the party to the new bill shall be equally bound by or have advantage of the proceedings on the original bill, as if there had been such a privity between him and the party to the original bill claiming the same interest (V) ; and the suit is considered as pending from the filing of the original bill, so as to save the statute of limitations, to have the advantage of com- pelling the defendant to answer before an answer can be compelled to a cross-bill, and every other advan- tage which would have attended the institution of the suit by the original bill if it could have been con- tinued by bill of revivor merely (?/).

8. It has been also mentioned (z), that if the in- terest of a plaintiff or defendant, suing or defending in his own right, wholly determines, and the same property becomes vested in another person not claim- ing under him, the suit cannot be continued by a bill of revivor, and its defects cannot be supplied by a supplemental bill ; but that by an original bill in the nature of a supplemental bill the benefit of the former proceedings may be obtained (a). A bill for this

(x) Clare v. Wordell, 2 Vern. Cha. 134. S. C. 2 Vern. 407.

548. 1 Eq. Ca. Ab. 83. Min- * Sim. & Stu. 495.

Ml v. Lord Mohun, 2 Vern. J& CJlf v" Frederick, 1 P.

Z ,,7 **■ 7 77 Wms. 266.

672. Mordaunt v. Minshull, {z) §ee above p ^

6 Bro. P. C. 32. Toml. Ed. \a) See Houlditch v. Marquis

Johnson v. Northcij. Prec. in of Donegal!, 1 Sim. & Stu. 491.

SEVERAL KINDS OF BILLS. gg

purpose must state the original bill, the proceedings upon it, the event which has determined the interest of the party by or against whom the former bill was exhibited, and the manner in which the property has vested in the person become entitled. It must then show the ground upon which the court ought to grant the benefit of the former suit to or against the person so become entitled ; and pray the decree of the court adapted to the case of the plainthT in the new bill (b). This bill, though partaking of the nature of a sup- lemental bill, is not an addition to the original bill, but another original bill, which in its consequences may draw to itself the advantage of the proceedings on the former bill (c).

IV. Informations (d) in every respect follow the nature of bills, except in their style. When they concern only the rights of the Crown, or of those whose rights the Crown takes under its particular protection, they are exhibited in the name of the king's attorney or solicitor-general as the informant ; and, as before observed, in the latter case always, and in the former, sometimes, a relator is named, who in reality sustains and directs the suit. It may happen that this person has an interest in the matter in dispute, and sustains the character of plaintiff as well as of relator ; and in this case the pleading is styled an information and bill. An information concerning the rights of the Queen is exhibited also in the name of her attorney-general.

(b) 6 Bro. P. C24.T0ml.Ed. (d) See above, p. 22.

(c) See 9 Ves. 55. above, p. 73.

If 2

ioo Frame and end ok the

The proceedings upon an information can only abate by the death, or determination of interest, of the defendant. If there are several relators, the death of any of them, while there survives one, will not in any degree affect the suit ; but if all the re- lators die, or if there is but one, and that relator dies, the court will not permit any further proceeding till an order has been obtained for liberty to insert the name of a new relator, and such name is inserted' accordingly (e), otherwise there would be no person liable to pay the costs (/") of the suit in case the information should be deemed improper, or for any other reason should be dismissed.

The difference in form between an information and a bill consists merely in offering the subject-matter as the information of the officer in whose name it is exhibited, at the relation of the person who suggests the suit in those cases where a relator is named, and in stating the acts of the defendant to be injurious to the Crown, or to those whose rights the Crown thus endeavours to protect. When the pleading is at the same time an information and bill it is a compound of the forms used for each when separately ex- hibited (g).

(e) Att. Gen. v. Poxvel, (f) l Vez. 72. Att. Gen. v.

Dick. 355. And the application Middleton, 2 Vez. 327.

must be made by the attorney (g) It may here be observed,

general, or with his consent, with respect to informations on

Att. Gen.v. Plumptree, 5 Madd. behalf of public charities, that

452. Wellbdoved v. Jones, 1 the practice of this court has

Sim. & Stu. 40; and see Anon, been to control the governors

Sel. Ca. in Cha. 69. Att. Gen. or other directors of them, in

v. Fellows, 1 Jac. & W. 254. those cases only in which they

SEVERAL KINDS OF BILLS. 101

In this investigation of* the frame and end of the several kinds of bills the matters requisite to the sufficiency of each kind have been generally con- sidered ; but they will in some degree be more par- ticularly noticed in the following chapter, in treating of the defence which may be made to the several kinds of bills, and consequently of the advantages which may be taken of their insufficiency both in form and substance.

have had the disposition of its empowered hy the 52 Geo. 3,

revenues ; and that this limited c. 101, to interfere in such

authority has been exerted cases as relate only to the plain

under its general jurisdiction in breach of trusts created for

relation to trusts : although it charitable purposes, on what is

has gone beyond the ordinary technically termed a petition

cases on that subject by regu- in a summary way. As to

lating the exercise of their dis- which see also ex parte Berk-

cretion. 2 Vez. 89. 2 Vez. hampstead School, 2 Ves. &

328. Att. Gen. v. Foundling Bea. 134. Ex parte Rees,

Hospital, 2 Ves. J. 42. S. C. 3 Ves. & Bea. 10. Ex parte

4 Bro. C. C. 165. Att. Gen. Brown, Coop. It. 295. Ex

v. Dixie, 13 Ves. 519. Att. parte Skinner, 2 Meriv. 453.

Gen. v. Earl of Clarendon, 17 S. C. 1 Wils. It. 14. Ex parte

Ves. 491. 3 Ves. & Bea. 154. Greenhouse, 1 Swanst. 60. S. C.

Att. Gen. v. Brown, 1 Swanst. 1 Wils. R. 18. In re Sleivings

265. Att. Gen. v. Mayor of Charity, 3 Meriv. 707. Att.

Bristol, 3 Madd. 319. S. C. Gen. v. Green, 1 Jac. & W.

2 Jac. & W. 294. Foley v. 303. In re Bedford Charily,

IVontner, 2 Jac. & W. 245. 2 Swanst. 470. In the matter

Att. Gen. v. Buller, 1 Jac. It. of St. Wenns Charity, 2 Sim,

407. Att. Gen. v. Heelis, 2 & Stu. 6Q ; and see 2 Swanst.

Sim. & Stu. 67. Att. Gen. v. 518. 525. And, it may here

Mayor of Stamford, reported be added, that it is also autho-

2 Swanst. 591. Att. Gen. v. rized to decide in certain other

Vivian, 1 Ituss. It. 226. It cases relating to the property

has already been observed in of charities, upon a petition,. by

the text, p. 18, that this Court is the ;-,9 Geo. 3, c. 91.

H 3

102 BY- WHOM A SUIT

CHAPTER THE SECOND. Of the DEFENCE to BILLS.

I

SECTION I.

By whom a Suit may be defended.

N treating of the defense which may be made to a bill it will be proper to consider, I. By whom a suit may be defended. II. The nature of the va- rious modes of defence ; under which head will be considered, l, demurrers, 2, pleas, 3, answers and disclaimers, or any two or more of them jointly, each referring to a separate and distinct part of the bill.

When the interest of the Crown, or of those whose rights are under its particular protection, is concerned in the defence of a suit, the Kings attorney-general, or during the vacancy of that office the solicitor- general, becomes a necessary party to support that interest (a); but it has been already observed, that a suit in the court of chancery is not the proper remedy where the Crown is in possession, or any title vested in it is sought to be divested, or af- fected (Z>), or its rights are the immediate and sole object of the suit. The Queen's attorney or soli-

(a) Balch v. Wastall, l P. (b) See above, p. 31.

Wms. 445. 2 Sch. & Lefr. 617.

MAY BE DEFENDED. 103

citor seems to be the party necessary to defend her rights (c).

All other bodies politic and corporate, and persons who do not partake of the prerogative of the Crown, and have no claim to its particular protection, defend a suit either by themselves, or under the protection of or jointly with others. Bodies politic and corporate, and persons of full age, not being married women, or idiots or lunatics, defend a suit by themselves ; but infants, idiots and lunatics, are incapable by themselves of defending as they are of instituting a suit ; and married women can only defend jointly with their husbands, except under particular circum- stances, unless a special order is obtained to authorize or compel their defending separately.

Infants institute a suit by their next friend ; but to defend a suit the court appoints them guardians who are usually their nearest relations, not concerned in point of interest in the matter in question (d). If a person is by age, or infirmities, reduced to a second infancy, he may also defend by guardian (e).

Idiots and lunatics defend by their committees (/),

(c) See 2 Roll. Ab. 213. But a 357. Williams v. Wynn, 10 queen dowager has been sued as Ves. 159. Hill v. Smith, 1 a common person, 9 Hen. VI. Madd. R. 290. Lushington v. 53. Writ of'annuityagainst Joan, Setvell, 6 Madd. 28. sed. rid. queen dowager of* Henry IV. Tappen v. Norman, 1 1 Ves. 563.

(d) OJJley v. Jenney, 3 Ch. (e) Leving v. Caverly, Prec. Rep. 51. On the subject of in Chan. 229. 1 Eq. Ca. Ab. appointing guardians ad litem 281. Wilson v. Grace, 14 Ves. for infant defendants, see Bras- 172. And see Alt. Gen. v. sington v. Brassington, 3 Anstr. Waddington, 1 Madd. R. 321. 369. Eylcs v. Le Gros, 9 Ves. {/) 1 Vern. io(>. Lyon v. 12. Jongsma v. PJiel, 9 Ves. Mercer, 1 Sim. & Stu. 356.

H 4

104 ** WHOM A SUIT

who are by order of the court appointed guardians for that purpose as a matter of course (g) ; and if it happens that an idiot or lunatic has no com- mittee (/*), or the committee has an interest opposite to that of the person whose property is intrusted to his care (i), an order may be obtained for appointing .another person as guardian for the purpose of de- fending a suit (A). So if a person who is in the condition of an idiot or lunatic, though not found such by inquisition, is made a defendant, the court upon information of his incapacity will direct a guardian to be appointed (/).

A married woman, though she cannot by herself institute a suit, and if her husband is not joined with her must seek the protection of some other person as her next friend, may yet, by leave of the court, de- fend a suit separately from her husband without the protection of another (m). Thus, if she claims, in opposition to any claims of her husband, or if she .lives separate from him (w), or disapproves the de- fence he wishes her to make (a), she may obtain an .order for liberty to defend the suit separately (p),

(g) Westcomb v. Westaomb, .Feme, I. a. 20. 1 Sim. & Stu.

Dick. 233. 1C3.

(//) Hoivlett v. Wilbraliam, (n) Portman v. Pophant,

•5 Madd. 423. Tothill,75. Jacksonv.Hatvortk,

(i) Snellv. Hyal, Dick. 287. 1 Sim. & Stu. 161.

see Lloyd v. , Dick. 460. (0) Ex parte Halsam, 2 Atk.

(k) Hotvlelt v. Wilbraliam, 50. 2 Eq. Ca. Ab. 66. .5 Madd. 423. (p) Potoel v. Prentice, Ca. t.

(/) Anon. 3 P. Wms. ill, n. Hardw. 258. Wybourn v. Blunt,

See Wilson v. Grace, 14 Ves. Dick. 155. A separate answer

J72' ln,t in by a married woman with-

(,m) 4 .Vin. Ab. 147. Baron & out an order for the purpose may

MAY BE DEFENDED. 105

and her answer may be read against her(y). If a husband is plaintiff in a suit, and makes his wife a defendant, he treats her as a feme sole, and she may answer separately without an order of the court for the purpose (r). The wife of an exile, or of one who has abjured the realm, may defend as she may sue alone (s) ; and if a husband is out of the juris- diction of the court (7), though not an exile, or if he cannot be found (//), his wife may be compelled to answer separately. If a married woman obstinately refuses to join in defence with her husband, she may also be compelled to make a separate defence ; and for that purpose an order may be obtained that pro- cess may issue against her separately (>). Except under such circumstances a married woman can only defend jointly with her husband (j/).

be suppressed as irregularly filed. But if filed with her ap- probation, and accepted by the plaintiff, it will not be deemed irregular upon objection taken by her merely for want of the order for leave to file it sepa- rately ; and she will be bound by an offer contained in it. See Duke ofChandos v. Talbot, i P. Wms. 371. S. C. Sel. Ca. in Cha. 24.

{q) Travers v. Buckly, 1 Vez. 383.

(r) Ex parte Strangrrvays, 3 Atk. 478. Brooks v. Brooks, Prec. in Chan. 24. Ainslie v.

iMcdlicott, 13 Ves. 2(i(5.

(s) See page 24, ig Co. Litt. 132. b. 133. a. and 2 Vern. 105.

it) Carlcton v. M'Enzic, 10

Ves. 442. Bunyan v .Mortimer, 6 Madd. 278. "

(u) Bell v. Hyde, Prec. in Ch. 328.

(x) Pain v. , 1 Ca. in

Cha. 296. 1 Sim. & Stu. 163.

(y) As to the answer of a married woman, see further, Plomer v. Plomer, 1 Ch. Rep. 68. Wrottesley v. Bendish, 3 P. Wms. 235. Penne v. Peacock, Ca. t. Talb. 41. Mur- riet v. Lyon, Bunbury, 1 75. Ex parte Halsam, 2 Atk. 50. Traverse v. Buckley, 1 Wils. R. 264. Barry v. Cane, 3 Madd. 472. Jackson v. Ha- tvort/t, 1 Sim. & Stu. 161. Garey v. W hittingham, 1 Sim. & Stu. 163. Buskell v. Bushcll, 1 Sim. & Stu. 164.

( io6 ) C H A P T E R II.

SECTION II.

PART I.

Of the Nature of the various Modes of Defence to a Bill; and first of Demurrers.

IT has been mentioned (a) that the person against whom a bill is exhibited, being called upon to answer the complaint made against him, may defend himself, 1, By demurrer, by which he demands the judgment of the court whether he shall be compelled to answer the bill or not (b). 2, By plea, whereby he shows some cause why the suit should be dismissed, delayed, or barred (c). 3, By answer, which, con- troverting the case stated by the plaintiff, confesses and avoids, or traverses and denies, the several parts of the bill (d) ; or, admitting the case made by the bill, submits to the judgment of the court upon it, or upon a new case made by the answer, or both : or by disclaimer, which at once terminates the suit, the defendant disclaiming all right in the matter sought by the bill (e). And all or any of these modes of defence may be joined, provided each relates to a separate and distinct part of the bill.

It has also been observed that the grounds on

(a) Page 13, 14, 15, 16. (d) 2 West. Symb. Chan. 194.

(b) Pract. Reg. 162. Wy. Ed. Pract. Reg. 11. Wy. Ed.

(c) Ibid. 324. Wy. Ed. (e) Pract. Reg. 175. Wy. Ed.

DEFENCE. 107

which defence may be made to a bill, either by answer, or by disputing the right of the plaintiff to compel the answer which the bill requires, are various both in their nature and in their effect. Some of them, though a complete defence as to any relief, are not so as to a discovery ; and when there is no ground for disputing the right of the plaintiff to the relief prayed, or if the bill seeks only a discovery, yet if there is any impropriety in requiring the discovery, or if it can answer no purpose for which a court of equity ought to compel it, the impropriety of com- pelling the discovery, or the immateriality of the dis- covery if made, may be used as a ground to protect the defendant from making it. Different grounds of defence therefore may be applicable to different parts of a bill ; and every species of bill requiring its own peculiar ground to support it, and its own peculiar form to give it effect, a deficiency in either of these points is a ground of defence to it.

Whenever any ground of defence is apparent on the bill itself, either from matter contained in it, or from defect in its frame, or in the case made by it, the proper mode of defence is by demurrer. A de- murrer is an allegation of a defendant, which, admit- ting the matters of fact (/) alleged by the bill to be true, shows that as they are therein set forth they are insufficient for the plaintiff to proceed upon or to oblige the defendant to answer (g) ; or that for some

(f) A demurrer confesses B. 95. 3 Meriv. 503. Cuthbert

matter of fact only, and not v. Creasy, 6 Madd. i8y. matter of law. Lord Raym. 18. (g) Prac. Reg. 162 Wy. Ed.

1 Ves. J. 78. •.%. '2 Ves. &

108 DEMURRERS.

reason apparent on the face of the bill (h), or because of the omission of some matter which ought to be contained therein, or for want of some circumstance which ought to be attendant thereon, the defendant ought not to be compelled to answer. It therefore demands the judgment of the court whether the de- fendant shall be compelled to make answer to the plaintiff's bill, or to some certain part thereof (i). The causes of demurrer are merely upon matter in the bill (k), or upon the omission (/) of matter which ought to be therein or attendant thereon ; and not upon any foreign matter alleged by the defendant (ni). The principal ends of a demurrer are, to avoid a dis- covery which may be prejudicial to the defendant, to cover a defective title, or to prevent unnecessary ex- pense. If no one of these ends is obtained, there is little use in a demurrer. For, in general, if a de- murrer would hold to a bill, the court, though the defendant answers, will not grant relief upon hearing the cause. There have been, however, cases in which the court has given relief upon hearing, though a demurrer to the relief would probably have been allowed («). But the cases are rare.

(h) Ord. in Cha. 26. Ed. Bea.

0) 3 P. Wms. 80. Prac. Reg. 162. Wy. Ed. See 2 Sch. {& Left, 206.

(k) 2 Vez. 247.

(I) 3 P. Wms. 395.

{m) Ord. in Cha. 26. Ed. Bea.

n) 3 P. Wms. 150. 12 Mod. 171. It seems that the court, upon the argument of a de-

murrer, decides upon the facts as stated in the bill, whether if the cause were to proceed to a hearing, and they were proved or confessed, a decree would then be made. See 2 Ves. J. 97. Brook v. Hewitt, 3 Ves. 253. 6 Ves. 686. 7 Ves. 245. 2 Sch. & Lef. 638. 6 Madd. 95.

DEMURRERS, log

Bills have been already considered under three general heads; 1, original bills; 2, bills not original ; and, 3, bills in the nature of original bills. The several kinds of bills ranged under the second and third heads being Consequences of bills treated of under the first head, the defence V^hich may be made to original bills in its variety comprehends the several defences which may be made to every other kind of bill, except such as arise from the peculiar form and object of each kind. In treating therefore of demur- rers it will be convenient first to consider demurrers to original bills, under which head the nature of demurrers in general, and the principal grounds of demurrer to every kind of bill, will be necessarily noticed : the distinct causes of demurrer peculiar to the several other kinds of bills will be then men- tioned ; and in the third place will be considered the frame of demurrers in general, and the manner in which their validity is determined.

In treating of original bills they have been divided into bills praying relief, and bills not praying relief; and it has been mentioned that both require a dis- covery from the party against whom the bill is exhi- bited. Demurrers to original bills may therefore be considered under two heads ; first, demurrers to relief, which frequently include a demurrer to discovery ; and secondly, demurrers to discovery only, which sometimes consequentially affect the relief. Under these heads will necessarily be considered the causes of demurrer, as well to bills which seek a discovery only as to such as likewise pray relief.

110 DEMURRERS.

From what has been observed in a preceding page it may be collected that the principal grounds of objection to the relief sought by an original bill, which can appear on the bill itself, and may therefore be taken advantage of by demurrer, are these (o) ; I, that the subject of the suit is not within the juris- diction of a court of equity ; II, that some other court of equity has the proper jurisdiction ; III, that the plaintiff is not entitled to sue by reason of some personal disability ; IV, that he has no interest in the subject, or no title to institute a suit concerning it ; V, that he has no right to call on the defendant concerning the subject of the suit ; VI, that the de- fendant has not that interest in the subject which can make him liable to the claims of the plaintiff ; VII, that for some reason founded on the substance of the case the plaintiff is not entitled to the relief he prays. To these may be added, VIII, the deficiency of the bill to answer the purpose of complete justice: and IX, the impropriety of confounding distinct sub- jects in the same bill, or of unnecessarily multiplying suits. When the discovery sought by a bill can only be assistant to the relief prayed, aground of demurrer to the relief will also extend to the discovery ; but if the discovery may have a further purpose, the plain- tiff may be entitled to it though he has no title to

(o) It has been said that a apply to the court that the bill

defendant may demur to a bill maybe dismissed. Anon. Mose-

if it appears upon the face of it ly,47. 356. Anon. Bunbury, 17.

to be brought for a very small Omens v. Smith, Comyn, 715.

sum ; but it is most usual to Brace v. Taylor, 2 Atk. 253.

DEMURRERS. Ill

relief. In considering, therefore, these several grounds of demurrer to relief, such as may, and such as cannot, extend to discovery likewise, will be dis- tinguished.

I. The general objects of the jurisdiction of a court of equity have been noticed in a former page(p) ; and from thence it may be collected, that the juris- diction, when it assumes a power of decision, is to be exercised, l, where the principles of law, by which the ordinary courts are guided, give a right, but the powers of those courts are not sufficient to afford a complete remedy, or their modes of proceeding are inadequate to the purpose ; 2, where the courts of ordinary jurisdiction are made instruments of injus- tice ; 3, where the principles of law by which the ordinary courts are guided give no right, but upon the principles of universal justice the interference of the judicial power is necessary to prevent a wrong, and the positive law is silent : and it may also be collected that courts of equity, without deciding upon the rights of the parties, administer to the ends of justice by assuming a jurisdiction, 4, to remove impediments to the fair decision of a question in other courts ; 5, to provide for the safety of property in dispute pending a litigation, and to preserve property in danger of being dissipated or destroyed by those to whose care it is by law intrusted, or by persons having immediate but partial interests ; 6, to restrain the assertion of doubtful rights in a manner pro-

( p) Page 4, 5.

H2 DEMURRERS.

ductive of irreparable damage ; 7, to prevent injury' to a third person by the doubtful title of others ; and 8, to put a bound to vexatious and oppressive litiga- tion, and to prevent multiplicity of suits : and further, that courts of equity, without pronouncing any judg- ment which may affect the rights of parties, extend their jurisdiction, 9, to compel a discovery, or obtain evidence which may assist the decision of other courts; and 10, to preserve testimony when in danger of being- lost before the matter to which it relates can be made the subject of judicial investigation.

1. Cases frequently occur in which the prin- ciples {(j) by which the ordinary courts are guided in their administration of justice give a right, but from accident or fraud, or defect in their mode of proceeding, those courts can afford no remedy, or cannot give the

{q) The existence of courts the ordinary courts have not

of equity in England distinct admitted of the application,

from the courts of ordinary ju- And from time to time the

risdiction, has suggested an idea courts of common law have also

that the ordinary courts, and been induced to admit, as

especially the courts of common grounds of their decision, rules

law, have not in their adminis- established in the courts of

tration of justice any recourse equity, which they had before

to such principles of decision as rejected as clashing with esta-

are merely rules of equity. But blished rules of the common

in fact those principles have law; and for some purposes

been as constantly applied by they have also noticed prin-

the ordinary courts as by the ciples of decision established in

courts of equity, except where the courts of equity, which the

they have clashed with esta- forms of proceeding in the

blished rules of the common courts of common law have

law, and where the forms ob- not enabled them directly to

served in the proceedings of enforce.

DEMURRERS. 113

most complete remedy ; and sometimes the effect of «i remedy attempted to be given by a court of ordi- nary jurisdiction is defeated by fraud or accident. In such cases courts of equity will interpose to give those remedies which the ordinary courts would give if their powers were equal to the purpose, or their mode of administering justice could reach the evil ; and also to enforce remedies attempted to be given by those courts when their effect is so defeated.

Thus where an instrument on which a title is founded, as a bond, is lost, a court of equity will in- terfere to supply the defect occasioned by the accident, and will give the same remedy which a court of com- mon law would have given if the accident had not happened (r). If an instrument has been destroyed, or is fraudulently suppressed, or withheld from the party claiming under it, courts of equity will also give relief (a); as they will generally lend their aid when- ever by fraud or accident a person is prevented from effectually asserting in the courts of ordinary juris- diction rights founded on principles acknowledged by those courts.

In some instances courts of law have acted on the

(r)i Ca.in Cha. 11. l Eq. Ca. Hob. log. Eyton v. Eyton, i

Ab. 92. l Atk. 287. Anon. 2 Vern. 380. Sanson v. Rurnsey,

Atk.61. Anon. 3 Atk. 17. l Vez. 2 Vern. 561. Dalston v. Coats-

344. 5 Ves. 238. 7 Ves. 19. worth, 1 P. Wms. 731. Cowper

East India Company \.Boddam, v. Earl Cowper, 2 P. Wms.

9 Ves. 464. Seagrave v. Sea- 720. Atkins v. Farr, 1 Atk.

grave, 13 Ves. 439. Smith 287. Tucker v. Phipps, 3 Atk.

v. Bichiell, 3 Ves. & B. 51, n. 359. 1 Vez. 392. Saltern v.

Stokoev.Robson, 3 Ves.&B. 51. Melhuish, Ambl. 249. Bowles

(s) See Lord Hunsdon's case, v. Stewart, 1 Sch. & Lefr. 209.

114 DEMU.RR.ERS.

supposed destruction or suppression of an instrument where formerly those courts conceived they could not act for want of the instrument, especially in the par- ticular mode of proceeding. Thus in the supposed suppression or destruction of a lease for lives under a power in a settlement, the supposed lessee was per- mitted to obtain on parol testimony a verdict and judgment in ejectment, upon a feigned demise, the form of the proceeding not requiring the lease in question to be in any manner stated in the pleadings, so that it could not appear upon the record under what title the recovery was had, or what specific lands were in the supposed lease, what were the lives for which it was granted, what the rent reserved, or what covenants bound either party ; or whether the lease was or was not according to the powers under which it was alleged to have been made. The con- sequence necessarily was a suit in equity to have all those facts ascertained, and to restrain the exe- cution of the judgment in ejectment in the mean

time.

In restraining waste by persons having limited in- terests in property, the courts of equity have gene- ally proceeded on the ground of the common-law rights of the parties, and the difficulty of obtaining immediate preservation of property from destruction or irreparable injury by the process of the common law (t) ; but upon this subject the jurisdiction has

(t) See Field v. Jackson, 784. Smith v. Collyer, 8 Ves. Dick. 599. Davis v. Leo, 6 Ves. 89. 9 Ves. 356. 19 Ves. 154.

1

demurrer's; n^

been extended to cases in which the remedies pro- vided in those courts could not be madeto apply (w).

Where an act of parliament has expressly given a right, the courts of ordinary jurisdiction have been found incompetent to give, in all cases, a full and complete remedy, and the courts of equity have therefore interposed. Thus in the case of a person who had been discharged under an act for relief of insolvent debtors, by which his future effects were made liable to the demand of his creditors, but his person was protected ; the court of chancery, exer- cising its extraordinary jurisdiction, enforced a judg- ment of a court of common law against his effects, which were so circumstanced as not to be liable to execution at the common law Qv).

Where parties by contract have given a right, but have not provided a sufficient remedy, the courts of equity have also interfered. Thus where a rent was

(u) As to the instances where which are cases of equitable

the title is legal, and the courts waste, see Chamberlyne v. Hum,'

of law admit the existence of mer, 1 Bro. C. C. 166. S. C.

an injury, but do not afford Dick. 600. Marquis of Doton-

a remedy, see 2 Freem. 54. shire v. Sandys, 6 Ves. 107.

Perrot v. Perrot, 3 Atk. 94. Lord Tamtvorth v. Lord Ferrers,

3Atk. 210. Farrantv. Lovel, 6 Ves. 419. Williams v. M'Na-

3 Atk. 723. 3 Atk. 755, 756. mara, 8 Ves. 70. Burges v.

Mollineuxv. Powell, 3 P. Wms. Lamb, \6 Ves. 174. Day v.

268, n. 3 Bro. C. C. 544. Merry, 16 Ves. 375. Mar-

Onsloio v. , 16 Ves. 1C3. chioness of Ormonde v. Ky~

Pratt v. Brett, 2 Madd. R. 62. nersley, 5 Madd. 369. Lush-

Brydges v. Stephens, 6 Madd. ington v. Boldero, 6 Madd. 149.

279 ; as to those where the title is Coffin v. Coffin, 1 Jac. R. 70.

equitable, see 19 Ves. 151. 155; (x) Edgell v. Haywood, 3

and as to those where the injury Atk. 352. See 1 Jac. & W.

is not acknowledged at law, 371.

I 2

Il6 DEMURRERS.

settled upon a woman by way of jointure, but she had no power of distress, or other remedy at law, the payment, according to the intent of the convey- ance, was decreed in equity (?/). So where parties, meaning* to create a perfect title, have used an im- perfect instrument, as a feoffment without livery of seisin (z) ; a bargain and sale without enrolment (a) ; a surrender of a copyhold not presented according to the custom of the manor (b) ; courts of equity have considered the imperfect instrument as evidence of a contract for making a perfect instrument, and have re- medied the defect even against judgment-creditors (c) who had gained a lien in the land in question, though when the consideration has been inadequate relief has not been extended so far (7/). Where the Legis- lature has declared that an instrument wanting a particular form should be null and void to all intents and purposes, and it was manifestly the design of the Legislature that those words should operate to -the fullest extent, relief has been refused. Thus a bill of sale of a ship wanting a formality required by the Register-act was not made good in equity against assignees of the vendor become bankrupt (e).

(y) Plunhet v. Brereton, l (c) See l P. Wm. 279. Ch. Rep. 5 ; and see Duke of (d) Finch v. Earl of Win- Leeds v. Potuell, 1 Vez. 171. chelsea, 1 P. Wins. 277. 283. (2) Burgh v. Francis, cited (e) Hibbert v. Rolleston, 3 P. Wins. 279. Burgh v. Bro. C. C. 571. 6 Ves. 745. Burgh, Rep. t. Finch, 28. Speldt v. Lechmere, 13 Ves.

(a) 6 Ves. 745. 588. Thompson v. Leake, 1

(b) Taylor v. Wheeler, 2 Madd. R. 39. Vern. 564.

DEMURRERS. II J

Relief has also been given where a remedy at law was originally provided, but by subsequent accident could not be enforced, as, where by confusion of boundaries of lands remedy by distress for rent was defeated (f). So if the remedy afforded by the ordi- nary courts is incomplete a court of equity will lend its aid to give a complete remedy (g). Upon this ground a bill was admitted for recovery of an ancient silver altar claimed by the plaintiff as treasure-trove within his manor : for though he might have reco- vered at law the value in an action of trover, or the thing itself, if it could be found, in an action of detinue, yet as the defendant might deface it, and thereby depreciate the value, it was determined that the defect of the law in that particular ought to be supplied in equity (//). And where an estate was held by a horn, and a bill was brought by the owner of the estate to have the horn delivered to him, a demurrer was over-ruled (i).

Upon the same principle (k) the jurisdiction of the court is supported in the very common case of a bill for delivery of deeds or writings (/), suggesting that

(f) l Vez. 17-2. See North therv. Lord Lotvther, l'jYes.gs. x. Earl and Countess of Straf- (i) Pusey v. Pusey, 1 Vern.

ford-, 3 P. Wms. 148. Bouve- 273; and see Earl of Maccles-

rie v. Prentice, 1 Bro. C. C. field v. Davis, 3 Ves. & Bea. 16.

200, and Duke of Leeds v. Cor- (k) See 2 Atk. 306.

•partition of Neve Radnor, 2 Bro. (I) The court of chancery has

C. C. 338, S. C. ib. 518, and long exercised its extraordinary

the cases there cited. jurisdiction in this case. See

(g) See 9 Ves. 33. 9 Edw. IV. 41 B. and Stat. 3s (h) Duke of Somerset v.Coo/c- Hen. VIII. c. 36. s. 9; and

son, 3 P. Wms. 390 ; and see see on this subjoct Broum v. Fells v. Read, 3 Ves. 7 1 . Loiv Brown, Dick. 62. 1 Madd..

1 3

n8

DEMURRERS.

they are in the custody or power of the defendant ; though in early times it seems to have been consi- dered that the jurisdiction did not extend to cases where an action of detinue would lie (iii).

In the case of contracts or agreements this prin- ciple is carried to the extent. The principles by which the courts of common law direct their deci- sions on the subject acknowledge the mutual right of the contracting parties to specific performance of the agreements they have made ; but the mode of proceeding in those courts enables them only to attempt to compel performance by giving damages for non-performance. Here therefore the courts of equity interfere to give that remedy which the ordinary courts would give if their mode of admi- nistering justice would reach the evil, by decreeing, according to the principles of the common law as well as of natural justice, specific performance of the agreement (w). This however extends only to con- tracts of which a specific performance is essential to

R. lg2. Crow v. Tyrrell, 3 Madd. 179. Knye v. Moore, 1 Sim. & Stu. 61. Balch v. Symes, 1 Turn. 87.

(m) 9 Edw. IV. 41 B. See also 39 Hen. VI. 26. Brooke Praer. 45 ; which seems to have been in effect a bill for disco- very and account.

(n) 13 Ves. 76. 228. 2 Sch. & Lefr. 556. 1 Jac. & W. 370. The courts of equity decree per- formance of agreements in many cases where no action would lie

at the common law for non- performance ; and on this head great complaints have been made, the justice of which it is beyond the purpose of this treatise to consider. See 1 Fonbl. Treat, of Eq. 151, n. (c) and 2 Sch. & Lefr. 347, and Williams v. Steward, 3 Meriv. 472. As to the propriety of extending the application of the doctrine of part performance, see 3 Ves. 712, 713. 6 Ves. 32. 37. 2 Sch. & Lefr. 5.

DEMURRERS. ] It)

justice (o) ; for if damages for non-performance are all that justice requires, as in the case of a contract for stock in the public funds, a court of equity will not interfere Q»). In other cases where compelling a specific act is the only complete remedy for an injury, and the ordinary courts can attempt to give this remedy only by giving damages, the courts of equity will interfere to give the specific remedy, especially if the right has been established by the determination of the ordinary courts (</).

In some cases, as in matters of account (r), parti- tion of estates between tenants in common (*), and

(o) See 3 Bro. C. C. 543. 8 Ves. 163. 2 Sch. & Lefr. 347.

(p) Cudv. Rutter, 1 P.Wms. 570. 10 Ves. 161. 13 Ves. 37.

(q) It is diffieult to reconcile all the cases in which the courts of equity have compelled the

Frauklyn v. Tuton, 5 Madd. 469. Dawson v. Ellis, 1 Jac. & W. 524. Baxter v. Conolly, 1 Jac. & W. 576. Martin v. Mitchell, 2 Jac. & W. 413. Beaumont v. Dukes, 1 Jac. R. 422. Gordon v. Smart, 1 Sim. &

performance of agreements, or Stu. 66. Brysonv. Whitehead,

refused to do so, with each 1 Sim. & Stu. 74. Doloret v.

other ; and in some cases where Rothschild, 1 Sim & Stu. 590.

performance has been decreed, Lingen v. Simpson, 1 Sim. &

it is difficult to reconcile the decisions with the principles of equal justice. The cases and their varieties are numerous, and have been ably collected in 1 Fonbl. Treat, of Equity. Of the later cases on the sub- ject, see Morphett v. Jones, 1 Swanst. 172. S. C. 1 Wils. Ch. R. 100. Garrard v. Grin- ling, 1 Swanst. 1. 244. S. C. 1 Wils. Ch. R. 460. Walker v. Barnes, 3 Madd. 247. Hud- son v. Bart ram, 3 Madd. 440.

Stu. 600. Agar v. Mac/dew, Sim. & Stu. 418. Hasker v. Sut- ton, 2 Sim. & Stu. 513. Lewin v. Guest, 1 Russ. R. 325. Att- xvood v. , 1 Russ. R. 353.

(r) See 2 Ves. 388. Corpo- ration of Carlisle v. Wilson, 13 Ves. 276. 1 Sch. & Lefr. 309.

(s) See 2 Freem. 26. 2 Ves. J. 570. Turner v. Morgan, 8 Ves. 143. 17 Ves. 552. 1 Ves. & B. 555. Miller v. Warming- ton. 1 Jac. & W. 484.

I 4

120 DEMURRERS.

assignment of dower (t), a court of equity will enter- tain jurisdiction of a suit, though remedy might perhaps be had in the courts of common law. The ground upon which the courts of equity first inter- fered in these cases seems to have been the difficulty of proceeding to the full extent of justice in the courts of common law(w). Thus though accounts may be taken before auditors in an action of account in the courts of common law, yet a court of equity by its mode of proceeding is enabled to investigate more effectually long and intricate accounts in an adverse way, and to compel payment of the balance which ever way it turns.

In the case of partition of an estate, if the titles of the parties are in any degree complicated, the diffi- culties which have occurred in proceeding at the common law have led to applications to courts of equity for partitions, which are effected by first ascertaining the rights of the several persons inte- rested, and then issuing a commission to make the partition required, and upon return of the commis- sion, and confirmation of that return by the court, the partition is finally completed by mutual convey- ances of the allotments made to the several parties (a). But if the infancy of any of the parties, or other circumstances, prevent such mutual conveyances, the decree can only extend to make the partition,

(t) See Curtis v. Curtis, 2 the jurisdiction was first assumed

Bro. C. C. 620. 2 Ves. J. 129. to prevent multiplicity of suits. 17 Ves. 552. (.r) See -Cariwright v. Pult-

(ti) 2 Vez. 388. 13 Ves. 279. ney, 1 Atk. 380. 2 Sch. & Lefr.

Perhaps in some of these cases 372. 1 Jac. & W. 493.

DEMURRERS. 121

give possession, and order enjoyment accordingly until effectual conveyances can be made. If the defect arise from infancy, the infant must have a day to show cause against the decree after attaining twenty-one ; and if no cause should be shown, or cause shown should not be allowed, the decree may then be extended to compel mutual conveyances (y). If a contingent remainder, not capable of being barred or destroyed, should have been limited to a person not in being, the conveyance must be delayed until such person shall come into being, or until the contingency shall be determined ; in either of which cases a .supplemental bill will be necessary to carry the decree into execution. An executory devise may occasion a similar embarrassment (z).

In the case of dower the widow is often much embarrassed in proceeding upon a writ of dower at the common law, to discover the titles of her de- ceased husband to the estates out of which she claims her dower, to ascertain their comparative value, and obtain a fair assignment of a third. How far the courts of equity will assist a widow in the assignment of dower has been at different times a subject of much question ; but the result of various decisions seems to have settled, that where there is no ground of equity, as a purchase for valuable con- sideration (a), to prevent their interference, the courts will proceed to set out dower ; though if the title to

(_y) See Att. Gen. v. Hamil- v. Slade, 6 Ves. 498. ion, 1 Madd. R. 214. (a) Williams v. Lambc, 3

(z) See the case of Wills Bro. C. C 264.

122 DEMURRERS.

dower be disputed it must be first established at law(a).

In all these cases the courts of equity will lend their aid ; but they have generally considered them- selves in so doing as proceeding merely on rights which may be asserted in a court of common law, and therefore in the two cases of partition, and assignment of dower, as no costs can be given in a court of common law upon a writ of partition or a writ of dower, no costs have been commonly given in a court of equity upon bills brought for the same purposes (b) ; and as arrears of dower can be reco- vered at common law only from demand, the same rule was adopted in the courts of equity, unless par- ticular circumstances had occurred to warrant a de- parture from the course of the common law, founded

(a) Curtis v. Curtis, 2 Bro. a writ of dower, which was also

C. C. 620. Mundyv. Mundy, done in Curtis v. Curtis, 15

2 Ves. jun. 122. The last case May, 1778 ; finally reported in

was upon a demurrer, which 2 Bro. C. C. 620. See also

after much consideration was the case of D'Arcy v. Blake,

over-ruled. Lord Talbot had 2 Sch. & Lefr. 387.

over-ruled a demurrer under .,. _, _ „ .

. ., . . ,, (b) see Lucas v. Cnalcrafi,

similar circumstances in Moor „. , nr. . u

„, , c T 1 j Dick. 594. With respect to

v. Blake, 26 July 1735, reported . T c. J

_ _, „,;, ■ ;c't A costs in cases or partition, see

Ca. Temp. Talb. 126, by the „ , , ~ , , ,/ T

. ,, -i 7-w 7 * i Calmaay v. Laimady, 2 Ves. J.

name or Moorland Black. And co .J . * T_

...... , . 508, Agar v.rairfax, 17 Ves.

a like decision was made in °,r . ^ ,

, . ,* M • nu 533> 1 Ves. & Bea. 554 ; and

Messott v. Messott, in Cha. . _ , ,

°P tT • n 7 m cases of dower, see Lucas v.

15 Oct. 1743. But in Read v. „ . . _ „ „ ,

J: , Z i- Calcra ft, 1 Bro. C.C. 134, and

Read, 15 Dec. 1744, the court J T'

• 11 i_u j j j o.L.i Ves. & Bea. 20, note,

retamed the bill, and ordered Tr _ „_ ' ,

, . * , , .v 2 Vez. 128, W organ v. Ryder,

the deeds to be produced, with ^ v^ ^ R^ n°

liberty to the plaintiff to bring

1 Ves. & Bea. 20.

DEMURRERS. 123

on the terms of a statute (c). The courts of equity having gone the length of assuming jurisdiction in a variety of complicated cases of account, of parti- tion, and of assignment of dower, seem by degrees to have been considered as having on these subjects a concurrent jurisdiction^/) with the courts of com- mon law in cases where no difficulty would have attended the proceeding in those courts.

But except in these instances, and in some cases noticed in a subsequent page, the courts of equity will not assume jurisdiction where the powers of the ordinary courts are sufficient for the purposes of justice ; and therefore, in general, where a plaintiff can have as effectual and complete remedy in a court of law as in a court of equity, and that remedy is clear and certain (e), a demurrer, which is in truth a demurrer to the jurisdiction of the court, will hold(/).

If an accident is made a ground to give jurisdic- tion to the court in a matter otherwise clearly cog- nizable in a court of common law, as the loss or want of an instrument on which the plaintiff's title is

(c) In the case of Curtis v. Curtis, 2 Bro. C. C. 620, this rule was not observed.

(d) 13 Ves. 279. 1 Sch. & Lefr. 309. 1 Ves. & Bea. 555

(c) Parry v. Owen, 3 Atk 740. Ghettoffs. Lond. Assur Comp. 4 Bro. P. C. 436 Toml. Ed. 1 Eq. Ca. Ab. 131 Bensley v. Burdon, 2 Sim. & Stu. 519.

(/) As courts of equity dis- claim all right to decide upon the validity of wills, whether of real or of personal estate, a demurrer to a bill whereby such a determination is sought, will hold. See Jones v. Jones, 3 Meriv. 161. Jones v. Frost, 3 Madd. 1. S. C 1 Jac. R. 466.

124 DEMURRERS.

founded, the court will not permit a bare suggestion in a bill to support its jurisdiction ; but requires a degree of proof of the truth of the circumstance on which it is sought to transfer the jurisdiction from a court of common law to a court of equity (£•), by an affidavit of the plaintiff annexed to and filed with the bill. Thus if a bill is brought to obtain the benefit of an instrument upon which an action at law would lie, alleging that it is lost, and that the plain- tiff therefore cannot have remedy at law, an affidavit of the loss must be annexed to the bill, or a de- murrer will hold(#).

So in the case of a bill for discovery of any in- strument, suggesting that it is in the custody or power of the defendant, and praying any relief which might be had at law if the instrument was in the hands of the plaintiff, an affidavit must be annexed to the bill that the instrument is not in his custody or power, and that he knows not where it is, unless it is in the hands of the defendant. But if the relief sought extends merely to the delivery of the instru- ment, or is otherwise such as can only be given in a court of equity, such an affidavit is not neces- sary (i). It is also unnecessary in the case of a bill for discovery of a cancelled instrument, and to have another deed executed (k) ; for if the plaintiff had the cancelled instrument in his hands he could make

(g) Whitchurch V. Golding, (i) Whitworth v. Golding,

i P. Wms. 541. 3 Atk. 132. Mos. 192. Nels. Rep. 78.

(h) See Walmsley v. Child, Anon. 3 Atk. 17.

1 Vez. 342. Hook v. Dorman, (j.) King v# King) MoSi lg3t l Sim. & Stu. 227.

DEMURRERS. 125

no use of it at law, and indeed the relief prayed is such as a court of equity only can give.

A suggestion that the evidence of the plaintiff's demand is not in his power is essential to a bill under these circumstances ; and if it is defective in this point the defendant may by demurrer allege that there is no such charge in the bill (/).

Where a right of action at law was in a trustee, and the person beneficially entitled filed a bill for relief, suggesting a refusal by the trustee to suffer an action to be brought in his name, a demurrer has been allowed (m) ; and if a mere suggestion to this effect would support a bill, the jurisdiction in many cases might improperly be transferred from a court of law to a court of equity.

By demurring to a bill because the plaintiff may have remedy at law, the defendant will not be de- barred of relief in equity upon another bill, if the plaintiff in the first bill should proceed at law and recover (;/).

This objection to a bill is not confined to cases cognizable in courts of common law. If any other court of ordinary jurisdiction, as an ecclesiastical court, court of admiralty, or court of prize, is compe- tent to decide upon the subject, a demurrer will equally hold ; except that the courts of equity have in the case of tithes, and in the disposition of the effects of persons dying testate or intestate, assumed

(/) 3 P. Wins. 395. Toml. Ed. And see 1 Atk. 547.

{m) Ghettqff'v. Lond. Assur. (n) Humphreys^ .Humphreys,

Comp. a Brown, P. C. 436. 3 P. Wms. 395.

126 DKMURRERS.

a concurrent jurisdiction with the ecclesiastical courts, as far as the jurisdiction of those courts ex- tends ; and indeed the courts of equity in many of these cases can give more complete remedy than can be afforded in the ecclesiastical courts, and in some cases the only effectual remedy.

Courts of equity will also lend their aid to enforce the judgments of courts of ordinary jurisdiction ; and therefore a bill may be brought tq obtain the execu- tion or the benefit of an elegit (o), or a fieri facias (p), when defeated by a prior title, either fraudulent, or not extending to the whole interest of the debtor in the property upon which the judgment is proposed to be executed. In some cases, where courts of equity formerly lent their aid, the Legislature has by express statute provided for the relief of creditors in the courts of common law ; and consequently ren- dered the exertion of this jurisdiction in such cases unnecessary. In any case to procure relief in equity the creditor must show by his bill that he has pro- ceeded at law to the extent necessary to give him a complete title. Thus in the cases alluded to of an elegit and fieri facias he must show that he has sued out the writs the execution of which is avoided, or the defendant may demur (q) ; but it is not neces-

(o) Lewkner v. Freeman, Pr. 399. Batch v. Waslall, 1 P.

in Ch. 105. Higgins v. York Wms. 445.

Build. Comp. 2 Atk. 107. (q)Angell v. Draper, iVem.

Stileman v. Ashdotvn, 2 Atk. ^ ^ .^ y> ^^ fl A^

6o8' .,. T . v 200. (p) Smithier v. Lewis, 1 Vern.

DEMURRERS. 127

sary for the plaintiff to procure returns to those writs (r).

The judgments of the ecclesiastical courts giving civil rights will receive the same aid from a court of equity as those of the courts of common law ; and therefore where a person against whom there was a sentence in an ecclesiastical court at the suit of his wife for alimony, intended to avoid the execution of the sentence by leaving the kingdom, the court of chancery entertained a bill for a writ of ne exeat regno, to restrain him from leaving the kingdom until he had given security to pay the maintenance decreed (s).

2. Sometimes a party, by fraud, or accident, or otherwise, has an advantage in proceeding in a court of ordinary jurisdiction which must necessarily make that court an instrument of injustice ; and it is there- fore against conscience that he should use the ad- vantage. In such cases, to prevent a manifest wrong, courts of equity have interposed, by restraining the party whose conscience is thus bound from using the advantage he has improperly gained ; and upon these principles bills to restrain proceedings in courts of ordinary jurisdiction are still frequent, though the

(r) Manningham v. Ld. Bo- (s) Read v. Read, l Ca. in

linbroke, Elegit, Easter 1777, Cha. 115. Sir Jerom. Smithson's

in Chan. Kennard v. Moore, case, 2 Ventr. 345. Anon. 2

in Ch. June 23,1756. 2 Eq. Ca. Atk. 210. Ambl. 76. Shajloe

Ab. 251. King v. Marissal, v. Shaftoe, 7 Ves. 171. DaivsoJi

3 Atk. 192. S. C. ib. 200. v. Datvson, ib. 173. Oldham v.

But see Batch v. Wastall, 1 P. Oldham, ib. 410. Haffey v.

Wms. 445. Haffey, 14 Ves. 261.

128 DEMURRERS.

courts of common law have been enabled, by the assistance of the Legislature, as well as by a more liberal exertion of their inherent powers, to render applications of this nature to a court of equity un- necessary in many cases where formerly no other remedy was provided. Thus if a deed is fraudulently obtained without consideration, or for an inadequate consideration, or if by fraud, accident or mistake, a deed is framed contrary to the intention of the parties in their contract on the subject, the forms of pro- ceeding; in the courts of common law will not admit ©

of such an investigation of the matter in those courts as will enable them to do justice. The parties claim-

ino: under the deed have therefore an advantage in

© ©

proceeding in a court of common law which it is against conscience that they should use ; and a court of equity will on this ground interfere to restrain proceedings at law until the matter has been properly investigated, and if it finally appears that the deed has been improperly obtained, or that it is contrary to the intention of the parties in their contract, will in the first case compel the delivery and cancellation of the deed, or order it to be deposited with an officer of the court ; and will compel a reconveyance of property if any has been so conveyed that a re- conveyance may be necessary (t) ; and in the second

(t) See on this subject, v. Proud, 13 Ves. 136. Ware

Bishop of Winchester v. Four- v. Horwood, 14 Ves. 28. Hu-

nier, 2 Vez. 445. Bates v. guenin v. Baseley, 14 Ves. 273.

Graves, 2 Ves. J. 287. Pringle Willan v. Willan, 16 Ves. 72.

v. Hodgson, 3Yes.6ij. Wright Murray v. Palmer, 2 Sell. &

DEMURRERS. 129

case will either rectify the deed according to the intention of the parties, or will restrain the use of it in the points in which it has been framed contrary to, or in which it has gone beyond, their intention in their original contract (it). The instances of the exer- cise of the jurisdiction of courts of equity in these cases, and especially in the case of a deed fraudu- lently obtained, are numerous (#). On the ground of mistake the courts of equity have also frequently interfered in a variety of instances, and particularly

Lefr. 474. Walker v. Symonds, cited, and Mason V. Gardiner,

3 Svvanst. 1. Gordon v. Got- 4 Bro. C. C. 436. But if the

don, 3 Svvanst. 400. Wood v. instrument ought not to be

Abrey, 3 Madd. 417. Tived- used, it is against conscience for

dell v. Tweddell, 1 Turn. R. 1. the party holding it to retain it,

(«) See 2 Atk. 33. 203. as he can only retain it for some

Henkle v. Royal Exchange sinister purpose ; and in the

Assur. Comp. 1 Vez. 317. case of a negotiable instrument

Rogers v. Earl, Dick. 294. it may be used for a fraudulent

Marquis of Toivnshend v. Stan- purpose, to the injury of a

groom, 6 Ves. 328. Clowes v. third person. See Bromley v.

Higginson, 1 Ves. & Bea. 524. Holland, Coop. R. 9. 11 Ves.

Beaumont v. Bramley, 1 Turn. 535. 17 Ves. 112. 1 Ves. &

R. 41. Ball v. Storie, 1 Sim. Bea. 244. Wynne x.Callandar,

& Stu. 210. 2 Sim. & Stu. 178. 1 Russ. R. 293; and see 2

(x) It has been sometimes Swanst. 157, note, where the doubted whether the court leading authorities on this sub- ought to compel the delivery ject are collected. Of a forged and cancellation of an instru- instrument the court ought to ment which ought not to be take the custody ; and in such a enforced, and whether the more case the instrument has been proper course would not be to generally ordered to be de- order a perpetual injunction to posited with an officer of the restrain the use of the instru- court. Bishop of Winchester ment. See 1 Ves. jun. 284. v. Fournier, 2 Vez. 445, and Ryan v. Mackmath, 3 Bro. C. cases there cited. C. 15, and the cases there

1^0 DEMURRERS.

in the cases of defective securities for money (3/), and of marriage settlements founded on previous articles, where the settlement has been contrary to the evident intention of the parties in the articles (z). The courts of equity will interfere upon the same grounds to relieve against instruments which destroy, as well as against instruments which create, rights ; and therefore will prevent a release which has been fraudulently or improperly obtained from being made a defence in an action at law. And where a fine and non-claim were set up as a bar to an ejectment by an heir at law, who had filed a bill in equity before the time had run on the fine, for discovery of title deeds, and for other purposes, with a view to try his title at law, the House of Lords upon an appeal res- trained the setting up the fine («). In many cases of accident, as lapse of time, the courts of equity will also relieve against the consequences of the ac- cident in a court of law. Upon this ground they proceed in the common case of a mortgage, where the title of the mortgagee has become absolute at law upon default of payment of the mortgage-money at the time stipulated for payment (b).

(y) Sims v. Urry, 2 Ca. in Randall v. Willis, 5 Ves. 262.

Chan. 225. S. C. Rep. temp. Taggart v. Taggdrt, 1 Sch. &

Finch, 413, & 2 Freem. 16. Lefr. 84. Blackburn v. Stables,

Burgh v. Francis, 1 Eq. Ca. 2 Ves. & Bea. 367. 1 Turn. R.

Ab. 320. Taylor v. Wheeler, 2 52.

Vern. 564. Jennings v. Monro, (a) PincJce v. Thornycroft,

2 Vern. Goc). Bothomly v. Lord l Bro. C. C. 28g.

Fairfax, 1 P. Wms. 334. (b) See 7 Ves. 273. 2 Sch.

(2) On this subject, see & Lefr. 685.

DEMURRERS. 1J1

As the courts of equity will prevent the unfair use of an advantage in proceeding in a court of ordinary jurisdiction gained by fraud or accident, they will also, if the consequences of the advantage have been actually obtained, restore the injured party to his rights. Upon this ground there are many instances of bills to prevent the effect of a judgment at law, and to obtain relief in equity where it was impossible by any means to have the matter properly investi- gated in a court of law ; or where the matter might be so investigated, to bring it again into a course of trial (c).

Bills of the latter description, or (as they are usually called,) bills for a new trial, have not been of late years much countenanced. In general, it has been considered that the ground for a bill to obtain a new trial after judgment in an action at law must be such as would be ground for a bill of review of a decree in a court of equity upon discovery of new matter (d) ; and therefore where judgment has been obtained against one underwriter on a policy of in- surance, a point of law being adjudged on a case reserved in favour of the plaintiff at law ; and after- wards in other actions on the same policy, against other underwriters, judgment was given for the de- fendants on the same point, the first judgment being deemed to have been clearly erroneous ; a demurrer

(c) Curtess v. Smalridge, l 377, 378. Countess of Gains* Ca. in Cha. 43. 3 C. Rep. 17. borough v. Gifford, 2 P. Wms.

Robinson v. Bell, 2 Vern. 146 Thomas v. Gyles, 2 Vern. 232 Tilly v. Wharton, 2 Vern. 378 S. C. ib. 419. 1 Eq. Ca. Ab

424. Hankey v. Vernon, 1 Cox's R. 12. 2 Ves. J. 135. (d) 1 Ca. in Cha. 43.

K 2

132 DEMURRERS.

was allowed to a bill brought by the defendant in the first action for a new trial. No new matter of fact had been discovered ; and if this bill had been sustained, a similar bill might have been filed, when- ever a court of law had pronounced an erroneous judgment which could not be reversed by a writ of error (e). So if the defendant in an action at law submits to go to trial without filing a bill in equity for a discovery of evidence, and after verdict against him attempts to obtain that discovery as a ground for a new trial, the court of equity will not countenance such a proceeding when there is no fraud in the conduct of the plaintiff at law (/).

Cases of oppression, where a man has taken ad- vantage of the situation of another to obtain from him an unreasonable contract, have been the sub- jects of relief on the same ground ( g) ; and in some cases the courts of equity have rescinded improper contracts on the grounds of general policy, and to prevent a public inconvenience, as in the case of securities given for marriage-brokage (h), or for the obtaining of public offices, or employments (i).

(e) Gibson v. Bell on demur- v. Clay worth, 18 Ves. 12.

rer, 30 July 1800, in Chan. 6 Matld. 109.

{J) Richardsv.Symes, 2 Atk. (h) Smith v. Bruning, 2

319. WUUamsv.Lee, 3 Atk.223. Vern. 392. 3 P. Wms. 394.

Manning v. Mestaer, in Chan. Williamson v. Gihon, 2 Sch.

9 Dec. 1786, on cause shown & Lefr. 357. against dissolving injunction. (i) Law v. Law, 3 P. Wms.

See Fieldv. Beaumont, 2 Swanst. 391. Whittingham v. Bour-

204. g°yne) 3 Anstr. 900. Hanning-

(g) Bosanquett v. Dashwood, ton v. Du Chatel, 1 Bro. C. C.

Ca. t. .Talb. 38. Osmond v. 124. S. C. 2 Swanst. 159,

Fitzroy, 3 P. Wms. 131. Cooke note.

DEMURRERS. 1 53

If a bill for any of these purposes does not show a sufficient ground for a court of equity to interfere, the defendant may demur for want of matter of equity in the plaintiff's case to support the jurisdic-* tion of the court. And the courts of equity will thus restrain and relieve against the effect of proceedings in other courts in such cases only as concern mere civil rights ; and therefore if a bill is brought for relief against a proceeding at law upon a criminal prosecution, as an indictment, or information, or a mandatory writ, as a writ of prohibition, a manda- mus, or any writ which is mandatory and not reme- dial, the defendant may demur (k).

3. The principles of law which guide the decisions of the courts of ordinary jurisdiction, and especially the courts of common law, were principally formed in times when the necessities of men were few, and their ingenuity was little exercised to supply their wants. Hence it has happened that, according to the prin- ciples of natural and universal justice, there are many rights for injuries to which the law, as administered by those courts, has provided no remedy. This is particularly the case in matters of trust and confi- dence, of which the ordinary courts, taking in a variety of instances no cognizance, and the positive law being silent on the subject, the courts of equity, considering the conscience of the party intrusted as bound to perform the trust, have interfered to compel the performance. And it has long been settled, that where trustees are desirous of acting under the direc-

(k) Lord Montague v. Dudman, 2 Ves. 396. 1 Eq. Ca. Ab. J 31 ; and see 18 Ves. 220.

K 3

134 DEMURRERS.

tion and protection of a court of equity, they may file a bill for those purposes against the persons in- terested in the trust-property (/). And in many other cases where the positive law has been silent, and there are rights in conscience for injuries to which the ordinary courts afford no remedy, the courts of equity have also interfered ; enforcing the principles of universal justice upon the ground of obligation on the conscience of the party against whom they are enforced (in). To support a bill in any of these cases it is necessary for the plaintiff to show that the subject of the suit is such upon which a court of equity will assume jurisdiction ; and if he fails to do so the defendant may demur.

4. Courts of equity in many cases will act as an- cillary to the administration of justice in other courts, by removing impediments to the fair decision of a question. Thus, if an ejectment is brought to try a right to land in a court of common law, a court of equity will restrain the party in possession from setting up any title which may prevent the fair trial of the right ; as a term for years, or other interest in a trustee, lessee, or mortgagee (n). But this will not be done in every case ; for as the court proceeds upon the principle that the party in pos-

(l) Leech v. Leech, 1 Ca. in of assets which he had aliened. Cha. 249. And see Fielden v. (n) 6 Ves. 8g. 1 Sch. &

Fielden, 1 Sim. & Stu. 255. Lefr. 429; and see 13 Ves.

(m) It is said, 1 P. W. 777, 298. Armitage v. Wadstvorth,

that before the statute of the 1 Madd. R. 189. Barney v.

3 & 4 W. and M. c. 14, courts Luckett, 1 Sim. & Stu. 419.

of equity made an heir respon- Northey v. Pearce, ib. 420. sible to creditors for the value

DEMURRERS. I35

session ought not in conscience to use an accidental advantage to protect his possession against a real right in his adversary, if there is any circumstance which meets the reasoning upon this principle the court will not interfere. Therefore, if the possessor is a purchaser for a valuable consideration without notice of the title of the claimant, this is a title in conscience equal to that of the claimant, and the court will not restrain the possessor from using any advantage he may be able to gain to defend his pos- session (0). It, can hardly appear upon the face of a bill that the defendant is in such a situation, and therefore the benefit of this defence must generally be taken by plea : but if the case should be so stated, the defendant might demur ; because the case stated would appear to be such in which a court of equity ought not to assume jurisdiction. If the matter suggested in a bill as an impediment to the determination of a question in a court of ordinary jurisdiction in fact is not so, the defendant may also demur ; for then there is no pretence for the inter- ference of a court of equity.

5. Pending a litigation the property in dispute is often in danger of being lost or injured, and in such cases a court of equity will interpose to preserve it, if the powers of the court in which the litigation is depending are insufficient for the purpose. Thus during a suit in an ecclesiastical court for admi- nistration of the effects of a person dead, a court of equity will entertain a suit for the mere preservation

(0) See 2 Ves. jun. 457, 458. Maundrell v. Maundrell, 7 Ves. 567. S. C. 10 Yes. 24.fi.

K 4

136 DEMUKRERS.

of the property of the deceased till the litigation is determined, although the ecclesiastical court, by granting an administration pendente lite, will provide for the collection of the effects (p). And, pending an ejectment in a court of common law, a court of equity will restrain the tenant in possession from committing waste, by felling timber, ploughing ancient meadow, or otherwise (//). Against this inconvenience a remedy at the common law was in many cases pro- vided during the pendency of a real action by the writ of estrepement (r) ; and when the proceeding by ejectment became the usual mode of trying a title to land, as the writ of estrepement did not apply to the case, the courts of equity, proceeding on the same principles, supplied the defect.

But, in general, if the court in which the suit is depending can itself provide for the safety of the property, a demurrer will hold. The interference to preserve the effects of a person dead pending a litigation in the ecclesiastical court, touching the administration of those effects, scarcely forms an ex- ception to this rule ; for the protection afforded by an administration pendente lite has been often a very insufficient protection ; and in the administration of personal effects the courts of equity have assumed a concurrent jurisdiction with the ecclesiastical courts,

(p) Kingv. King, 6 Ves. 172. v. Frost, 3 Madd. 1. S. C. 1

Richards v.Chave, 12 Ves. 4G2. Jac. R. 46G. G Madd, 49.

Edmunds v. Bird, 1 Ves. & Bea. 1 05.

542. Atkinson v. Hehshauo, (q) Pidteney v. Shelton, 5

2 Ves. & B. 85. Ball v. Oliver, Ves. 260, note. Lathropp v.

2 Ves. & B. 96. Rutherford Marsh, 5 Ves. 259; and see

v. Douglas, rep. 1 Sim. & Stu- Onslow v. , 16 Ves. 173.

111, n. 3 Meriv. 174. Jones (r) F. N. B. Go.

.DEMURRERS.' 137

and for many purposes have a much more effectual jurisdiction, particularly for payment of creditors, and concluding all parties by the judgment of the court in the distribution of the effects, and preserving the surplus for the benefit of those who may finally ap- pear to be entitled to it.

6. Doubts have been suggested how far a court of equity ought to interfere to prevent injury arising to property pending a suit founded on trespass. This doubt, it should seem, ought to be confined to cases of mere trespass, and where the injury done is not probably irreparable (s). But when a doubtful right has been asserted in a manner productive of irreparable .ajury the courts have interfered. Therefore, where the tenants of a manor, claiming a right of estovers, nt down a great quantity of growing timber of great value, their title being doubtful, the court of chancery entertained a bill at the suit of the lord of the manor 'strain this assertion of it (t) ; and indeed the ommission of waste of every kind, as the cutting of \ pulling down of houses, ploughing of ancient pasture, working of mines, and the like, is a very frequent ground for the exercise of the jurisdiction of courts of equity, by restraining the waste till the rights of the parties are determined. The courts of equity have also extended their relief to restrain the owner of a mine from working minerals in the ad- joing land of another, though a mere trespass under the cover of a right (w).

\s) Hanson v. Gardiner, 7 (t) Stonor v. Strange, Mich.

Ves. 305. 10 Ves. 291. 17 1767, and Stonorv.IVhiting,}l\].

Ves. 110. 281. 1 Swanst. 208. 1768. in Chan. 1 Sch.&Lcfr. 8.

210. Sec above, 115, note («)• (u) Mitchell v. Dors, 6 Ves.

I38 DEMURRERS.

The courts of equity seem to have proceeded upon a similar principle in the very common cases of per- sons claiming- copy-right of printed books, and of patentees of alleged inventions, in restraining the publication of the book at the suit of the owner of the copy, and the use of the supposed invention at the suit of the patentees. But in both these cases the bill usually seeks an account ; in one, of the books printed, and in the other, of the profit arisen from the use of the invention : and in all the cases alluded to it is frequently, if not constantly, made a part of the prayer of the bill that the right, if disputed, and capable of trial in a court of common law, may be there tried and determined under the direction of the court of equity ; the final object of the bill being a perpetual injunction to restrain the infringement of the right claimed by the plaintiff (V).

In all cases of waste committed on lands or tene- ments the courts of equity originally proceeded by analogy to the provisions of the old common law, by which tenant by the courtesy and in dower answered only for the value of the waste done, and a custos was assigned to prevent further waste. The statute of Marlebridge, 52 H. III. c. 23, added a fine for the offence to full damage for the injury done ; and after-

147. 7 Ves. 308. Thomas v. & Bea. 19. Gee v. Pritchard,

Oakley, 18 Ves. 184. 2 Swanst. 402. Rundellv.Mur-

(x) On the subject of copy- ray, 1 Jac. R. 311. Lawrence v.

right, see Hogg v. Kirby, 8 Ves. Smith, 1 Jac. R. 47 1 . Barfieldv.

215. Longman v. Winchester, Nicholson, 2 Sim & Stu. l ; on

16 Ves. 269. Wilkins v. Aikin, that of patents, see Harmer

17 Ves. 422. Southey v. SAer' v. Plane, 14 Ves. 130^ Canham ■wood, 2 Meriv. 435. Lord and v. Jones, 2 Ves. & Bea. 248. Lady Percival v. Phipps, 2 Ves. Hill v. Thompson, 3 Meriv. 622.

DEMURRERS. I39

wards the statute of Gloucester, 6 Edw. I. c. 5, gave treble damages, and the forfeiture of the place wasted by tenant by the courtesy, for life, or for years. The forfeiture by waste, and all penalties, ought to be waved in a bill for restraining waste ( j/), the courts of equity declining to compel a discovery which may subject a defendant to any penalty or forfeiture, and confining the relief given to compensation for the damage done, and restraining future injury. So at law the person entitled to the benefit of forfeiture for waste might wave the action for waste, and maintain an action of trover for trees felled by a tenant im- peachable for waste (z).

With respect to copyholds, the courts appear, in some instances, to have refused to restrain waste, nd left the lord to his legal remedy by forfeiture (a). The rights of the lord and tenant of copyholds de- pending on the custom of each manor, it has per- haps been thought that the lord is not entitled to that protection which is given to rights ascertained by the common law of the land, and that he has generally the remedy in his own hands. Upon a lease of land in Ireland for lives, renewable for ever, the courts of equity there have declined restraining waste not specially provided for by the terms of the lease (U).

(y) 1 Atk. 451. Lord israfoW, when Chancellor,

(z) Berry v. Heard, Cro. now reported in 3 Meriv. 673,

Car. 242. this decision was overruled. (a) Dench v. Bampton, 4 (b) Calvert v. Gason, 2 Seh.

Ves. 700. In a cause, however, & Lefr. 561.

of Richards v. Noble, before

14° DEMURRERS.

But in the case of waste the courts of equity have in many instances given remedies where the common law has provided none. Thus in the case of co- parceners (c) and tenants in common (d), the Court has interfered to prevent the destruction of the pro- perty by one coparcener, or one tenant in common, to the injury of the rest(e). So where tenant for life not impeachable for waste has proceeded to destruction of a mansion-house (/), or to cut down ornamental trees, or trees necessary for the protection of a mansion, or young- saplins (g). In these cases it should seem that the courts have proceeded on the ground that the acts done were an unconscientious use of the powers given to the particular tenant, and in some instances, perhaps, partaking of the nature of mere malicious mischief (//). It has been much doubted whether in some instances this relief has not been carried to an extent which may be found productive of great inconvenience, and per- haps injustice, if the decisions should be implicitly followed (i).

Where persons were bound by covenant to keep the banks of a river in repair, and by their acts in contravention of the covenant great injury was likely

(c) Beaumont and Sharp, Freem. 53. Chamberlyne v. May 9, 1751. Dummer, 1 Bro. C. C. 166,

(d) Hde v. Thomas, 7 Ves. and cases there cited; and see 589. Ttvortv. Twort, 16 Ves. above, p. 115, note.

128. (h) 2 Freem. 278. Bishop

(c) 7 Ves. 590. 16 Ves. 131. of London v. Web, 1 P. Wms.

(y) Vane v. Lord Barnard, 527.

2 Vern. 738. (j) See 16 Ves. 185. (g) Abraham v. Buhb, 1

DEMURRERS. 141

to arise, a court of equity has interfered by injunc- .tion (k).

In all the cases in which the interference of a court of equity is thus sought, if the bill should not clearly show the title of the plaintiff", or his right to .demand the assistance of the court in his favour, or that the case is one to which the court will apply the remedy sought, the defendant may demur.

7. It has been mentioned (/) that where two or more persons claim the same thing by different titles, and another person is in danger of injury from igno- rance of the real title to the subject in dispute, courts of equity will assume a jurisdiction to protect him ; and that the bill exhibited for this purpose is 'ermed a bill of interpleader, the object of it being 1 compel the claimants to interplead, so that the court may adjudge to whom the property belongs, and the plaintiff may be indemnified. The principles upon which the courts of equity proceed in these cases are similar to those by which the courts of law are guided in the case of bailment ; the courts of law compelling interpleader between persons claiming property, for the indemnity of a third person in whose hands the property is, in certain cases only, as where the property has been bailed to the third person by both claimants, or by those under whom both make title ; or where the property came to the hands of the third person by accident ; and the courts of equity extending the remedy to all cases to which

(tc) Lord Kilmoreij v. Thackeray, cited a Brown, C. C. 65. (I) See above p. 48.

142 DEMURRERS.

in conscience it ought to extend, whether any suit has been commenced by any claimant, or only a claim made(m).

This remedy has been applied to the case of tenants of lands charged with annuities, and liable to distress by their landlord, and the claimants of annuities (n), and to other cases of disputed titles (o), in which the tenants have been permitted to pay their rents into court (p).

If a bill of interpleader does not show that each of the defendants whom it seeks to compel to interplead claims a right, both the defendants may demur ; one, because the bill shows no claim of right in him, the other, because the bill showing no claim of right in the co-defendant shows no cause of interpleader (if). Or if the plaintiff shows no right to compel the de- fendants to interplead, whatever rights they may

(m) It may here be noticed, Case, cited 9 Ves. 107. Angell

that if at the hearing the ques- v. Hadden, 15 Ves. 244, S. C.

tion between the defendants be lG Ves. 202.

ripe for decision, this court will (0) Wood v. Kay and wife

make a decree ; and that if such and others, 19 Dec. 1786.

be not the case, it will direct 2 Ves. jun. 312. 16 Ves. 203,

an action, an issue, or a refer- 204.

ence to a Master, in order to (p) It is however observable,

bring the matter to a determi- that in such cases the Court

nation. See Duke of Bolton interferes on the ground of

v. Williams, 2 Ves. jun. 138. privity having been created by

S. C. 4 Bro. C. C. 297. Angell the act of the landlord between

v. Hadden, 16 Ves. 202. his tenant and the other claim-

(n) Surry and others, tenants ant. See Cowtan v. Williams,

of Lord Waltham, against Vaux 9 Ves. 107. Clarke v. Byne,

and others, 28 Feb. 1785. 13 Ves. 383. E.I. Comp.v.

Aldridge v. Thompson, 2 Bro. Edwards, 18 Ves. 37G.

C. C. 150. Lord Thomond's (q) 1 Vez. 249.

DEMURRERS. I43

claim, each defendant may demur (r). A bill of this nature is also liable to a peculiar cause of demurrer; for as the court will not permit such a bill to be brought in collusion with either claimant, the plaintiff, as has been already mentioned, is required to annex to his bill an affidavit that it is not exhibited in col- lusion with any of the parties, to induce the court to entertain jurisdiction of the suit; and the want of that affidavit is therefore a ground of demurrer (s). A bill of this nature generally prays an injunction to restrain the proceedings of the claimants in some other court ; and as this may be used to delay the pay- ment of money by the plaintiff, if any is due from him, he ought by his bill to offer to pay the money due into court (t). If he does not do so it is perhaps in strictness a ground of demurrer.

8. In many cases the courts of ordinary jurisdic- tion admit, at least for a certain time, of repeated attempts to litigate the same question. To put an

(r) As, for example, if a v. Crowley, 1 Buck, B. C. 273,

tenant were to file such a bill and Lowndes v. Cornjbrd, 18

against his landlord, and a per- Ves. 299. S. C. 1 Rose, B. C.

son with whom he himself 180.

has no privity, but who claims (s) Metcalf v. Harvey, 1

by a title adverse to that of the Vez. 248 ; and see 2 Ves. &

landlord. Dungey v. Angove, Bea. 410.

2 Ves. jun. 304. 2 Anstr. 532; (t) Lord Thanct v. Patterson,

Johnson v. Atkinson, 3 Anstr. 3 Barnard, 247. 2 Ves. jun.

798; or, an agent against his 108, 109. It seems that there

principal and a third person, might be a case in which a de-

Nicholson v. Knowles, 5 Madd. murrer would be prevented by

47;or,adebtoragainsthiscredi- the money being brought into

tor become a bankrupt, and the court. See 19 Ves. 323. assignees of the latter, Harlow

144 DEMURRERS.

end to the oppression occasioned by the abuse of this privilege the courts of equity have assumed a juris- diction^). Thus, actions of ejectment having become the usual mode of trying titles at the common law, and judgments in those actions not being in any degree conclusive, the courts of equity have inter- fered ; and, after repeated trials, and satisfactory determinations of questions, have granted perpetual injunctions to restrain further litigation (.r), and thus have in some degree put that restraint upon litigation which is the policy of the common law in the case of real actions (3/).

Upon the same principle (z) the courts of equity seem to have interfered in cases as well of private as of public nuisance ; in the first, at the suit of the party injured (a), in the second, at the suit of the attorney-general (b) ; restraining the exercise of the nuisance where the proceedings at law are inef- fectual for the purpose, and preventing the creation of a nuisance where irreparable injury to indivi- duals, or great public injury, would ensue (c). In the case of a private nuisance it seems necessary that a judgment at law, ascertaining the rights of

(u) 2 Sch. & Lefr. 211. (z) See Dick. 164. 16 Ves.

(x) Earl of Bath, v. Shenoin, 342. 19 Ves. 622.

Prec. in Chan. 261. S. C (a) See Ryder v. Bentham,

4 Brown, P. C. 373, Toml. Ed. 1 Vez. 543. Att. Gen. v.'Nichol,

Leigktonv.Leighton, 1 P.Wms. 16 Ves. 338. S. C. 3 Meriv.

671. S. C. 4Bro. P. C. 378, 687.

Toml. Ed. And see Anon. {b) See Anon. 3 Atk. 750.

Gilb. Eq. R. 183. S. C.2 Eq. S. C. named Baines v. Baker,

Abr. 172. Barefoot v. Fry, Ambl. 158. Att. Gen. v. Cleaver,

Bunb. 158.2 Sch. & Lefr. an. 18 Ves. 211.

(y) Strange, 404. (c) 16 Ves. 342.

DEMURRERS. 14,**;

the parties, should have been previously obtained (7/). On informations by the attorney-general on behalf of the Crown the court of exchequer has proceeded to the abatement of nuisances injurious to the royal prerogative, such as nuisances in harbours, or even trespasses on the public rights of the Crown without, any nuisance (e). If a trespass is made on the soil of the Crown, whether reserved for the private use of the Sovereign, or for public purposes, and the trespass does not produce a public injury, the juris- diction may be founded on the right of the Crown to have the land arrented, and the profit accounted for as part of the royal revenue, in the nature of an assart; and if the trespass produces, or may in its consequences produce, public injury, the Crown is entitled to the most effectual means of preventing the injury (/).

Courts of equity will also prevent multiplicity of suits ; and the cases in which it is attempted, and the means used for that purpose, are various. With this view, where one general legal right is claimed against several distinct persons, a bill may be brought to establish the right (g). Thus where a right of fishery was claimed by a corporation throughout the course of a considerable river, and was opposed by

(d) 19 Ves. G22. Chalk v. 162. Alt. Gen. v. Richards, Wyatt, 3 Meriv. G88. Wyn- Anstr. 603.

Stanley v. Lee, 2 Swanst. (/) 18 Ves. 218.

333. (g) 2 Atk.484. 11 Ves. 444.

(e) Att. Gen. v. Forbes, Ex- . Corporation of Carlisle v. Wil- cheq. Trin. 1795. Hale tie son, 13 Ves. 27G. Duke of Jure Maris, p. 1, c. 4. p. 13. Norfolk v. Myers, 4 Madd. 83. Churchman v. Tunsial, Hardr. 1 Jac. & W. 3%.

L

I46 DEMURRERS.

the lords of manors and owners of land adjoining', a bill was entertained to establish the right against the several opponents, and a demurrer was over-ruled (h). As the object of such bills is to prevent multipli- city of suits by determining the rights of the parties upon issues directed by the court, if necessary for its information, instead of suffering the parties to be harassed by a number of separate suits, in which each suit would only determine the particular right in question between the plaintiff and defendant in it, such a bill can scarcely be sustained where a right is disputed between two persons only, until the right has been tried and decided upon at law (j). Indeed in most cases it is held that the plaintiff ought to establish his right by a determination of a court of law in his favour before he files his bill in equity (A) ; and if he has not so done, and the right he claims has not the sanction of long posses- sion (/), and he has any means of trying the matter at law (pi), a demurrer will hold. If he has not been actually interrupted or dispossessed, so that he has had no opportunity of trying his right, he may bring1 a bill to establish it though he has not previously recovered in affirmance of it at law, and in such a case a demurrer has been over-ruled (n),

(h) Mayor of York v. Pitting- (I) Bitsh v. Western, Prec. in

ton, l Atk. 282. Chan. 530.

(i) Lord Teynham v. Herbert, (m) 'Whitchurch v. Hide,

2 Atk. 483. 2 Atk. 391. Wells v. Smeaton,

(k) 1 Atk. 284. Anon. vVez. in Chan. 27 May 1784.

414. 2 Sch. & Lefr. 208. 11 (n) 1 Atk. 284. And see

Ves. 444. 1 Jac. & W. 369. Duke of Dorset v. Girdler, Prec.

DEMURRERS. 147

It is not necessary to establish a right at law be- fore filing a bill where the right appears on record, as under letters patent for a new invention, in which case a demurrer to a bill for an injunction to restrain an infringement of the patent right has been over- ruled (0). So in the cases of bills brought by authors or their assignees to restrain the sale of books where the right which is the foundation of the bill is grounded on an act of parliament (p). And where a right ap- peared on record by a former decree of the court it was determined that it was not necessary to establish it at law before filing a bill (q). Where a right prima facie and of common right is vested in the Crown, it will receive the same protection (r), and this prin- ciple may be applied to some of the cases mentioned in a preceding page.

A court of equity will thus protect private rights, or rights of those who may be comprehended under one common capacity, as the inhabitants of a parish, or the tenants of a manor, which has been frequently done in bills to establish parochial customs of tith- ing disputed by the tithe-owner, and more rarely in bills to establish the customs of manors disputed by the lord (s) ; but will not establish or decree a per-

in Chan. 531. But see Welby (q) Ibid,

v. Duke of Rutland, 2 Bro. (r) SeeGVes. 713. Grierson

P. C. 39. Toml. Ed. 2 Sch. v.Eyre,(jVes. 341. l3Ves.5o8.

& Lefr. 209. (s) Netv El me Hospital v.

(0) Horton and Maltby, in Andover, 1 Vern. 266. Baker

Chan. 23 July 1783. 3 Meriv. v. Rogers, Sel. Ca. in Cha. 74.

(J24. Covoper v. Clerk, 3 P. Wins.

(p) 1 Vez. 476. 155. 2 Eq. Ca. Ab. 172.

L 2

I48 DEMURRERS.

petual injunction for the enjoyment of a right hi con- tradiction to a public right, as a right to a highway, or a common navigable river, for that would be to enjoin all the people of England (0, although it will restrain a public nuisance at the suit of the attorney-general. A court of equity will also prevent injury in some cases by interposing before any actual injury has been suffered ; by a bill which has been sometimes called a bill quia timet, in analogy to proceedings at the common law, where in some cases a writ may be maintained before any molestation, distress, or im- pleading (u). Thus a surety may file a bill to compel the debtor on a bond in which he has joined to pay the debt when clue, whether the surety has been actually sued for it or not ; and upon a covenant to save harmless, a bill may be filed to relieve the cove- nantee under similar circumstances (#).

9. To administer to the ends of justice without pronouncing any judgment which may affect any rights, the courts of equity in many cases compel a discovery which may enable other courts to decide on the subject. The cases in which this jurisdiction is exercised will be considered in treating of de- murrers to discovery only.

10. When the testimony of witnesses is in danger of beino- lost before the matter to which it relates can

(t) Lord Hardwicke, in Lord 1 Vera. 189, 190, and on the

Fauconberg and Pierse, 1 Ith of general subject, see also 1 Vez.

May 1753. 2 Eq. Ca. Ab. 171. 283. Flight v. Cook, 2 Vez.

Ambl. 210. 619. Green v. Pigot, 1 Bro*

(w) Co. Litt. 100. a. C.C. 103. Brown v. Dudbridge,

(x) Lord Ranelaugh v. Hayes, 2 Bro. C C. 321.

DEMUR RE US. 1 49

be made the subject of judicial investigation, a court of equity will lend its aid to preserve and perpetuate the testimony (j/) ; and as the courts of common law cannot generally examine witnesses except viva voce upon the trial of an action, the courts of equity will supply this defect by taking and preserving the testimony of . witnesses going abroad, or resident out of the king- dom (z), which may be afterwards used in a court of common law. As the object of this jurisdiction is to assist other courts, and by preserving evidence to prevent future litigation, there are few cases in which the court will decline to exercise it. A demurrer to a bill seeking the benefit of it will therefore seldom lie (a) ; and in a case where the court was of opinion that the defendant might demur both to the discovery sought and the relief prayed by a bill, it was held that to so much of the bill as sought to perpetuate the testimony of witnesses the defendant could not demur (b). But if the case made by the bill appears to be such on which the jurisdiction of the court does not arise, as if the matter to which the required

(y) See above, 52, note (y). Wms. 117. Tirrell v. Co,

(z) As to the examination of a R0l. Ab. 383. Mendez v.

witnesses resident abroad, see Barnard, 16 May, 1735, on

Cock \. Donovan, 3 Ves.&Bea. demurrer. Lord Dursley v.

76. Botvdenv. Hodge, 2 Swanst. Fitzhardinge, 6 Ves. jun. 251

258. Cheminant v. Dela Cour, to 2G6. See however, The Earl

1 Madd. R. 208. Devisv. Turn- of Belfast v. Chichester, 2 Jac.

bull, 6 Madd. 232. Baskett & W. 439. v. Toosey, 6 Madd. 261. An- (J) Earl of Suffolk v. Green,

gell v. Angell, 1 Sim. & Stu.83. 1 Atk. 450. See Thorpe v. Ma-

Mendizabel v. Machado, 2 Sim. caulay, 5 Madd. 218. Shakcll

A Stu. 483. v. Macauley, 2 Sim. & Stu. 79.

(a) 1 Atk, 451. 571. i P.

L 3

150 DEMURRERS.

testimony is alleged to relate can be immediately investigated in a court of law, and the witnesses are resident in England, a demurrer will hold (c). Still, however, where from circumstances, as the age or infirmity of witnesses, or their intention of leaving the kingdom, it has been probable that the plaintiff would lose the benefit of their testimony, though he should proceed with due diligence at law, the court has sustained a bill for their examination (d) ; and to avoid a demurrer in this case it seems necessary to annex to the bill an affidavit of the circumstance by means of which the testimony may probably be lost (e). A bill for the examination of a single wit- ness has been permitted where his evidence was of the utmost importance, and he was the only witness to the point, apparently upon the single ground, that as he was the only witness there was danger of losing all evidence of the matter before it could be given in a court of law : but in this case an affidavit of the witness was annexed to the bill (/). The principle on which it is required in these cases to annex to the bill an affidavit of the circumstance which renders the examination of witnesses proper

(c) Lord Northv. Lord Gray, Atkins v. Palmer, 5 Madd. 19. Dick. 14. 1 Sim. & Stu. 89. Detu v. Clarke, 1 Sim. & Stu.

(d) As to the examination of 108.

witnesses under such circum- (e) Philips v. Carew, 1 P.

stances, de bene esse, see Shir- Wms. 117. 1 Ves. & B. 23.

ley v. Earl Ferrers, 3 P. Wms. (/) Shirley v. Earl Ferrers,

77. Palmer v. Lord Aylesbury, 4th Seal after Trin. Term, 1 730.

15 Ves. 176. Andrews v. Pal- MS. N. 3 P. Wms. 77. M.

mer, 1 Ves. & B. 21. Corbett 1730. 8 Ves. 32. See above,

v. Corbett, 1 Ves. & B. 335. p. 52, note («).

DEMURRERS. I5I

in a court of equity, though the matter is capable of being made immediately the subject of a suit at law seems to be the same as that on which the practice of annexing an affidavit of the loss or want of an instrument, to a bill seeking to obtain in a court of equity the mere legal effect of the instrument, is founded, namely, that the bill tends to alter the ordinary course of the administration of justice, which ought not to be permitted upon the bare allegation of a plaintiff in his bill.

II. It has been before noticed, that the establish- ment of courts of equity has obtained throughout the whole system of our judicial polity ; and that most of the inferior branches of that system have their peculiar courts of equity, the court of chancery assuming a general jurisdiction in cases not within the bounds, or beyond the powers of inferior jurisdic- tions. The principal of the inferior jurisdictions in England are those of the counties palatine of Chester, Lancaster, and Durham, the courts of great session in Wales, the courts of the two universities of Oxford and Cambridge, the courts of the city of London and of the Cinque-ports (g). These are necessarily bounded by the locality either of the subject of the suit or of the residence of the parties litigant. Where those circumstances occur which give them juris- diction they have exclusive jurisdiction in matters of equity as well as matters of law ; and they have

( g) The court of exchequer, seem to give to any person the as a court of equity, does not privilege of being sued there.

L 4

152 DEMURRERS.

their own peculiar courts of appeal, the court of chancery assuming1 no jurisdiction of that nature, though it will in some cases remove a suit before the decision into the chancery by writ of certiorari. When therefore it appears on the face of a bill that another court of equity has the proper jurisdiction, either immediately, or by way of appeal, the defendant may demur to the jurisdiction of the court of chan- cery. Thus to a bill of appeal and review of a decree in the court of the county palatine of Lancaster the defendant demurred, because on the face of the bill it was apparent that the court of chancery had no jurisdiction ; and the demurrer was allowed (/?). But demurrers of this kind are very rare ; for the want of jurisdiction can hardly appear upon the face of the bill, at least so conclusively as is necessary (i) to deprive the chancery, a court of general jurisdiction, of cognizance of the suit ; and a demurrer for want of jurisdiction founded on locality of the subject of the suit, which alone can exclude the jurisdiction of the chancery in a matter cognizable in a court of equity, has even been treated as informal and im- proper^). This, however, can only be considered as referring to cases where circumstances may give the chancery jurisdiction, and not to cases where no circumstance can have that effect. Thus the counties palatine having their peculiar and exclusive courts of equity under certain circumstances, which will be

(h) Jennet v.Bishopp, l Vern. (k) See Roberdeau v. Rous,

184. 1 Atk.543.

(i) See 1 Vez. 203, 204.

DEMURRERS- t$<f

more fully considered in another place (/), the court of chancery will not interfere when all those circum- stances attend the case, and they are shown to the court ; though if those circumstances are not shown, or if they are not shown in proper time, and the defendant, instead of resting upon them and declining the jurisdiction, enters into the defence at large, the court, having general jurisdiction, will exercise it. But where no circumstance can give the chancery jurisdiction, as in the case alluded to of a bill of appeal and review of a decree in a county palatine, it will not entertain the suit, even though the defend- ant does not object to its deciding on the subject.

III. If a plaintiff is not entitled to sue by reason of any personal disability (in), which is apparent in the bill, the defendant may demur. Therefore, if an infant, or a married woman, an idiot or a lunatic, exhibiting a bill, appear upon the face of it to be thus incapable of instituting a suit alone, and no next friend or committee is named in the bill, the de- fendant may demur ; but if the incapacity does not appear upon the face of the bill the defendant must take advantage of it by plea. This objection ex- tends to the whole bill, and advantage may be taken of it as well in the case of a bill for discovery merely as in the case of a bill for relief. For the defendant in a bill for a discovery merely, being always entitled to costs after a full answer as a matter of course, would be materially injured by being compelled to

(/) See pleas to the jurisdic- (»i) See Wqrtnaby v. Wart'

Hon of the court of chancery. iiaby, i Jac. R. 377.

154 DEMURRERS.

answer a bill exhibited by persons whose property- is not in their own disposal, and who are therefore incapable of paying the costs.

IV. Interest in the subject of the suit, or a right in the thing demanded, and proper title to institute a suit concerning it, are essentially necessary to sus- tain a bill ; and if they are not fully shown by the bill itself the defendant may demur (rn). Therefore, where a protestant next of kin claimed a rent-charge settled on a papist on her marriage, a demurrer was allowed (n), for the plaintiff had evidently no right to the thing which he demanded by his bill, the papist being incapable of taking by purchase, and the grant of the rent-charge being therefore utterly void. And where a plaintiff claimed under a will, and it was apparent upon the construction of the will that he had no title, a demurrer was allowed (o). But in this case it was said, that if upon arguing the demurrer the court had not been satisfied, and had been therefore desirous that the matter should be more fully debated at a deliberate hearing (p), the demurrer would have been over-ruled without prejudice to the defendant's insisting on the same

(m) See 2 Sch. & Lefr. 638. Darthez v. Winter, 2 Sim.& Stu.

536.

(n) See Michaux v. Grove, 2 Atk. 210.

(0) Broivnsivord v. Edivards, 2 Vez. 243. See also Beech v. Crull, Free, in Chan. 589. Par- ker v. Fear nley, 2 Sim.&Stu.592.

{p) Perhaps this declaration

fell from the Court rather in- cautiously ; as a dry question upon the construction of a will may be as deliberately deter- mined upon argument of a de- murrer as at the hearing of a cause in the ordinary course ; and the difference in expense to the parties may be consider- able. See above p. 108. note(«)

DEMURRERS. 155

matter by way of answer (g), which indeed it should seem may in all cases be done without the special declaration of the court, that the over-ruling of the demurrer shall be without prejudice.

Though the plaintiff in a bill may have an interest in the subject, yet if he has not a proper title to institute a suit concerning it a demurrer will hold(r). Therefore, where persons who had obtained letters of administration of the estate of an intestate in a foreign court, on that ground filed a bill seeking an account of the estate, a demurrer was allowed (s), because the plaintiffs did not show by their bill a complete title to institute a suit concerning the sub- ject ; for though they might have a right to adminis- tration in the proper ecclesiastical court in England, and might therefore really have an interest in the thing demanded by their bill, yet not showing that they had obtained such administration they did not show a complete title to institute their suit. And where an executor does not appear by his bill to have proved the will of his testator, or appears to have proved it in an improper (t) or insufficient (V) court, as he does not show a complete title to sue as exe- cutor a demurrer will hold.

Want of interest in the subject of a suit, or of a title to institute it, are objections to a bill seeking any kind of relief, or filed for the purpose of dis-

(q) 2 Vez. 247. v. Edwards, l Jac. & R. 335.

(r) It seems the plaintiff must (s) Tourton v. Elorvcr, 3 P.

distinctly show a title in equity; Wms. 369. for, where one stated a title (t) 3 P. Wms. 371.

either at law or in equity a de- («) Combers Case, 1 P. Wms.

murrer was allowed. Edwards 7GG.

156 DEMURRERS.

covery merely. Thus, though there are few cases in which a man is not entitled to perpetuate the testi- mony of witnesses, yet if upon the face of the bill the plaintiff appears to have no certain right to or interest in the matter to which he craves leave to examine, in present or in future (V), a demurrer will hold. There- fore, where a person claiming as devisee in the will of a person living, but a lunatic, brought a bill to perpetuate the testimony of witnesses to the will against the presumptive heir at law (y) ; and where persons who would have been entitled to the per- sonal estate of a lunatic if he had been then dead in- testate, as his next of kin, supposing him legitimate, brought a bill, in the life-time of the lunatic, to per- petuate the testimony of witnesses to his legitimacy, against the attorney-general as supporting the rights of the Crown (z), demurrers 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 use the deposi- tions (a), and therefore the depositions, if taken, would have been wholly nugatory.

So in every case where the plaintiff in a bill shows only the probability of a future title upon an event

(x) Smith v. Att. Gen. in (z) Smith v. Att. Gen. in

Chan. Mich. 1777. 6 Ves. 260. Chan. Mich. 1777. 6 Ves. 256.

Allan v. Allan, 15 Ves. 130. 260. 15 Ves. 133- 136.

(y) Sackvill v. Ayleworth,

1 Vera. 105. i Eq. Ca. Ab. («) See 2 Prax. Aim. Cur.

234. Smith v. Watson, in Chan. Can. 501 ; and see The Earl of

20 June 1760. 2 Prax. Aim. Belfast v. Chichester, 2. Jac.

Cur. Cane. 500, where there is & W. 4 39. the form of a demurrer.

DEMURRERS. 157

which may never happen lie has no right to institute any suit concerning- it ; and a demurrer will hold to any kind of bill on that ground, which will extend to any discovery as well as to relief (/>).

If the claim of the plaintiff is of a matter in it- self unlawful, as of money promised to a counsellor at law for advice and pains in carrying on a suit (c) ; or of money bequeathed by a will to purchase a dukedom (7/) ; the defendant may demur to the bill, for the plaintiff not having a lawful claim has no title to sue in a court of justice.

There are grounds of demurrer to a bill for a dis- covery merely as well as to a bill for relief. But if a plaintiff shows a complete title, though a litigated one, or one that may be litigated, as that of an ad- ministrator, where a suit is depending to revoke the administration (e) ; or of an administrator where there may be another personal representative (/) ; a de- murrer will not hold, at least to discovery. For in the first case, till the litigation is determined the plaintiff's title is good, and in the second case, the court will not consider the ecclesiastical court as having done wrong. And where a doubtful title only is shown it is necessarily sufficient to support a bill seeking the assistance of the court to preserve pro- perty in dispute pending a litigation. Therefore where

(b) Sackvill v. Ayleiwrth, v. Rotve, l Rep. in Cha. 38. Vern. 105. 1 Eq. Ca. Ab. 234. 2 Atk. 332.

Smith v. Alt. Gen. Mich. (d) Earl of Kingston v. Lady

1777. Pierepont, 1 Vern. 5.

(c) Penrice v. Parker, Rep. (e) Wright v. Blicke, Ibid. 1 06. Temp. Finch. 75 ; and see Moor (f) 3 P. Wms. 37°-

158 DEMURRERS.

a suit was pending in an ecclesiastical court touching" the representation to a person deceased, a demurrer of one of the parties to that suit, who had possessed the personal estate of the deceased, to a bill for an account filed by the other party, was over-ruled (g). The ground of this decision seems to have been the deficient powers of the ecclesiastical court for securing the effects whilst the suit there was depending ; and the doubt as to the title of the parties was the very ground of the application to the court.

V. A plaintiff may have an interest in the subject of his suit, and a right to institute a suit concerning it, and yet may have no right to call on a defendant to answer his demand. This may be for want of privity between the plaintiff and defendant. Thus, though an unsatisfied legatee has an interest in the estate of his testator, and a right to have it applied to answer his demands in a due course of administra- tion, yet he has no right to institute a suit against the debtors to his testator's estate for the purpose of compelling them to pay their debts in satisfaction of his legacy (h). For there is no privity between the legatee and the debtors, who are answerable only to the personal representative of the testator; unless by collusion between the representative and the

(g) PhippsY. Steward, 1 Atk. (h) Bickly v. Dorrington,

286. And see Andrews v. 10 March 1736, Rolls, 12 Nov.

Powys, 2 Brown, P. C. 504, 1737- Lord Chan, on Appeal,

Toml. Ed. See also Wills v. cited Barnard. 32, & 6 Ves.749.

Rich, 2 Atk. 285, and Morgan Monk v. Pomfret, cited ibid.

v. Harris, 31 Oct. 1786. De- Alsager v. Rowley, 6 Ves. 748,

raurrer over-ruled, 2 Bro. C. C. and the cases there cited and

121. referred to. 9 Ves. 86.

DEMURRERS. 1 59

debtors, or other collateral circumstance, a distinct ground is given for a bill by the legatee against the debtors (//). So a bill filed by the creditors of a person who was one of the residuary legatees of a testator, against the executors of the testator, the other resi- duary legatees, and the executrix of their debtor, was dismissed (J).

But where an agent has been employed, his prin- cipal has in many cases a right to a discovery of his transactions, and to demand the property with which he has been intrusted, or the value of it, against those with whom the agent has had deal- ings ; and therefore, where a merchant who had em- ployed a factor to sell his goods filed a bill against the persons to whom the goods had been sold, for an account, and to be paid the money for which the goods had been sold, and which had not been paid to the factor, a demurrer was over-ruled (k). So where a merchant acting upon a commission del credere became bankrupt, having sold goods of his principals for which he had not paid them, and shortly before his bankruptcy drew bills on the ven- dees, which he delivered to some of his creditors to discharge their demands, they knowing his insol- vency, a suit by the principals was maintained against the persons who had received the bills, for an account and payment of the produce. But the

(h) 3 Madd. 159. others, on demurrer, 10 April

(i) Elmslie v. M'Aulay, 1793. 2 Ves. jun. §5. S. C.

3 Bro. C. C. 624. And see 4 Bro. C C 270.

Utterson v. Mair, Vernon and (k)Lissetv. Reave, 2 Atk.394.

*G0 DEMURRERS.

book-keeper of the bankrupt having been made a party, as one of the persons to whom bills had been so delivered, and having denied that fact by his answer, he was not compelled to answer to the rest of the bill, which, independent of that fact, was, as to him, a mere bill for discovery of evidence (/).

VI. The plaintiff must by his bill show some claim of interest in the defendant in the subject of the suit(W), which can make him liable to the plaintiff's demands, or the defendant may demur (n). Therefore, if a bill is filed to have the benefit of or to impeach an award, and the arbitrators are made parties, they may demur to the whole bill, as well to discovery as relief (0) ; for the plaintiff can have no decree against

(l) Neuman v. Godfrey, dulent or improper conduct be

2 Bro. C. C. 332. 2 Ves. J. 457. charged, and the costs be pray-*

See Att.Gen.v. Skinners Comp. ed against them. See 7 Ves.

5Madd. 173, particularly at p. 288. 14 Ves. 252. Le Texier

194. But see Cookson \. Ellison, v. Margravine of Anspach, 15

2 Bro. C.C. 252, and the other Ves. 159. Botvles v. Stewart,

subsequent cases on the neces- 1 Sch. & Left. 209. ib. 227.

sity of answering fully. See be- 1 Meriv. 123. And, this obser-

low, Chap. 2. sect. 2. part. 3. vation of course applies more

(m) See Doivlin v. Macdou- strongly where the parties may

gall, 1 Sim. & Stu. 367. be interested, but cannot other-

(n) 2 Eq. Ca. Ab. 78. There wise be made defendants for

are, however, instances in which want of privity. See 3 Barnard,

persons not interested in the 32. Doran v. Simpson, 4 Ves.

subject of dispute, may by their 651. 6 Ves. 750. 9 Ves. 86.

conduct so involve themselves Salvidgev. Hyde, 5 Madd. 138.

in the transaction relating to it, S. C. 1 Jac. R. 151. that they may be held liable to (0) Steward v. E. I. Comp.

costs ; and under such circum- 2 Vera. 380. See 14 Ves. 254.

stances it seems they cannot Goodman v. Sayers, 2 Jac. &

demur to the bill, if the frau- \y. 249.

DEMURRERS. 101

them, nor can he read their answer against the other defendants. Indeed, where an award has been im- peached on the ground of gross misconduct in the arbitrators, and they have been made parties to the suit, the court has gone so far as to order them to pay the costs (p) ; and probably, therefore, in such a case a demurrer to the bill would not have been al- lowed. A bankrupt made party to a bill against his assignees touching his estate may demur to the relief all his interest being transferred to his assignees (</) ; but it seems to have been generally understood, that if any discovery is sought of his acts before he became a bankrupt, he must answer to that part of the bill for the sake of discovery, and to assist the plaintiff in obtaining proof, though his answer cannot be read against his assignees ; and otherwise the bankruptcy might entirely defeat justice (r). Upon the same prin- ciple it seems also to have been considered, that where a person having had an interest in the sub- ject of a bill has assigned that interest, he may yet be compelled to answer with respect to his own acts before the assignment.

It is difficult to draw a precise line between the

(p) Lingood v. Croucher, 5 Madd. 48. Lloyd v. Lander,

2 Atk. 395. Chicot v. Lequesne, 5 Madd. 282 ; but, it seems,

2 Vez. 315, and the case of that if fraud were charged and

Ward v. Periam, cited ib. 316. costs were prayed against him,

1 Turn. R. 131, note. Lord he could not demur, ib. and

Lonsdale v. Littledale, 2 Ves. 15 Ves. 164. See also King v.

jun. 451. 14 Ves. 252. Martin, 2 Ves. jun. 641.

(q) Whitxxsorthv. Davis, lVes. (r) Upon this passage see

& Bea. 545. S. C. 2 Rose, 1 Ves. & Bea. 548, 549, 550. B.C. 11 6. Bailey v. Vincent,

M

id -J DEMURRERS;

cases iii which a person having* no interest may be called upon to answer for his own acts, and those in which he may demur, because he has no interest in the question. Thus, where a creditor who had obtained execution against the effects of his debtor filed a bill against the debtor, against whom a com- mission of bankrupt had issued, and the persons claiming as assignees under the commission, charging that the commission was a contrivance to defeat the plaintiff's execution, and that the debtor having by permission of the plaintiff possessed part of the goods taken in execution for the purpose of sale, and in- stead of paying the produce to the plaintiff had paid it to his assignees, a demurrer by the alleged bankrupt, because he had no interest, and might be examined as a witness, was over-ruled, and the deci- sion affirmed on re-hearing (s). A difference has also been taken where a person concerned in a transac- tion impeached on the ground of fraud has been made party to a bill for discovery merely (t) ; or as having the custody of an instrument for the mutual benefit of others (m).

To prevent a demurrer a bill must in many cases not only show that the defendant has an interest in the subject, but that he is liable to the plaintiff's de-

(s) Kingv. Martin andothers, 2 Vez. 627. 629, as to the evi-

25 July 1795, rep. 2 Ves. jun. dence of a person charged as

641. particeps criminis, in support

(£) Cotton v. Luttrell, Trin. of a transaction impeached as

1738. Bennet v. Vade, 2 Atk. fraudulent.

324. See above, p. 160, note (n). (m) 3 Atk. 701. See also Bridgman v. Green,

DEMURRERS. 163

mands(tr). As 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 ; because the bill did not expressly allege that the heir was bound in the bond, although it did allege that the heir ought to pay the debt, a demurrer was allowed ( y) . So where a bill was brought by a lessor against an assignee touching a breach of covenant in a lease, and the covenant, as stated in the bill, appeared to be collateral, and not running with the land, did not therefore bind assigns, and was not stated by the bill expressly to bind assigns, the assignee demurred, and the demurrer was allowed (z).

VII. If for any reason founded on the substance of the case as stated in the bill the plaintiff is not entitled to the relief he prays, the defendant may demur. Many of the grounds of demurrer already mentioned are perhaps referrible to this head ; and in every instance, if the case stated is such that admitting the whole bill to be true the court ought not to give the plaintiff the relief or assistance he requires in the whole or in part, the defect thus ap- pearing on the face of the bill is sufficient ground of demurrer (a).

VIII. It is the constant aim of a court of equity to do complete justice by deciding upon and settling

(x) See Ryves v. Ryves, (z) Lord Uxbridge v. Stave- 3 Ves. 343. land, 1 Vez. 56.

(y) Crosscing v. Honor, l {a) 7 Ves. 245. 2 Sch. &

Vern. 180. Lefr. C38. 6 Madd. <)j.

M 2

164 DEMURRERS.

the rights of all persons interested in the subject of the suit, to make the performance of the order of the court perfectly safe to those who are compelled to obey it, and to prevent future litigation (£). For this purpose all persons materially interested in the subject ought generally to be parties to the suit, plaintiffs or defendants, however numerous they may be, so that the court may be enabled to do complete justice, by deciding upon and settling the rights of all persons interested, and that the orders of the court may be safely executed by those who are com- pelled to obey them, and future litigations may be prevented (c).

This general rule, however, admits of many quali- fications. When a person who ought to be a party is out of the jurisdiction of the court, that fact being- stated in the bill, and admitted by the defendants, or proved at the hearing, is in most cases a sufficient reason for not bringing him before the court ; and the court will proceed without him against the other par- ties, as far as circumstances will permit (d). It is usual, however, to add the name of a person out of the juris- diction of the court as a party to the bill, so far as may be necessary to connect his case with that of

(b) See Knight v. Knight, Cotvslad v. Cell/, Prec. in Chan.

3 P. Wms. 331. But see also 83. Danvent v. Walton, 2

Cullen v. Duke of Queensberry, Atk> Williams v. Whin-

1 Bro. C. C. 101. * » n n j

yates, 2 Bro. C. C. 399 ; and,

(c) 3 P- Wms. 333, 334 3 tf the disposition of ^ 0. Atk. 51. 7 Ves. 563. 12 Ves. , .■ , „r, 53. 1 Meriv. 262. Beaumont Perfcy be m the Power of the v. Meredith, 3Ves.&Bea. 182. other parties, the Court, it 1 Sch. & Lefr. 298. seems, will act upon it. 1 Sch.

(d) 1 Vez. 385 ; and see & Lefr. 240.

DEMURRERS. l6j

the other parties ; and the bill may also pray process against him in case he should become amenable to such process ; and if in fact he should become so amenable pending the suit he ought to be brought before the court, either by issuing process against him, if process should have been prayed against him, and if not, by amending the bill for that purpose, if the state of the proceedings will admit of such amend- ment, or by supplemental bill if they will not (e). If a person so out of the power of the court is required to be an active party in the execution of its decree, as where a conveyance by him is necessary, or if the decree ought to be pursued against him, as the foreclosure of a mortgagee against the original mort- gagor, or his representative or assign, the proceed- ings will unavoidably be to this extent defective (f). A foreign corporation not amenable to the jurisdic- tion of the court falls within this description, and a corporation in Scotland is considered for this pur- pose as a foreign corporation (g).

When the object of a suit is to charge the personal property of a deceased person with a demand, it is generally sufficient to bring before the court the per- son constituted by law to represent that property, and to answer all demands upon it; and the difficulty of bringing before the court, in some cases, all the persons interested in the subject of a suit, has also

(<?) See Haddock v. Thorn- (g) Att. Gen. v. Baliol, Coll.

linson, 2 Sim. & Stu. 2iq. in Cha. 10 Dec. 1744. Lord

(f) Fell v. Brown, 2 Bro. Hardvoicke, as to the Univer-

C. C. 277 ; see above, p. 32. sity of Glasgow.

l66 DEMURRERS.

induced the court to depart from the general rule (h), where the suit is on behalf of many in the same in- terest, and all the persons answering that description cannot easily be discovered or ascertained. Thus a few creditors may substantiate a suit on behalf of themselves and the other creditors of their deceased debtor, for an account and application of his assets, real as well as personal, in payment of their de- mands (i) ; and the decree being in that case applied to all the creditors, the other creditors may come in under it, and obtain satisfaction of their demands equally with the plaintiffs in the suit ; and if they decline to do so they will be excluded the benefit of the decree, and will yet be considered as bound by acts done under its authority (k). As a single creditor may sue for his demand out of personal assets, it is rather matter of convenience than of in- dulgence to permit such a suit by a few on behalf of all the creditors ; and it tends to prevent several suits by several creditors, which might be highly inconve- nient in the administration of assets, as well as bur- thensome on the fund to be administered ; for if a bill be brought by a single creditor for his own debt,

(h) Prec. in Chan. 592. 170, notes (u) and (x). Ellison

Pearsonv. Belchier,4.Ves.62'j. v. Bignold, 2 Jac. & W. 503.

Lloyd v. Loaring, 6 Ves. 773. Manning v. Thesiger, 1 Sim. &

11 Ves. 367. Adair v. Nero Stu. 106. Gray v. Chaplin,

Hirer Comp. 1 1 Ves. 429. 2 Sim. & Stu. 267.

CocHburn v. Thompson, 16 Ves. (i) 2 Vez. 313. Lata v. Rigby,

321. Beaumont v. Meredith, 4 Bro. C. C. Co.

3 Ves. & Bea. 180. Meux v. (k) See Good v. Bletvittf

Maltby, 2 Swanst. 277, and 19 Ves. 336, and Angell v.

cases there cited; and see below, Haddon, 1 Madd, R. 529.

demurrers; 7(»7

lie may as at law gain a preference by the judgment in his favour over other creditors in the same degree, who may not have used equal diligence (/).

But some of a number of creditors, parties to a trust-deed for payment of debts, have been per- mitted to sue on behalf of themselves and the other creditors named in the deed for execution of the trust (m), although one of those creditors could not in that case have sued for his single demand without bringing the other creditors before the court. This seems to have been permitted purely to save ex- pense and delay. If a great number of creditors,- thus specially provided for by a deed of trust, were to be made plaintiffs, the suit would be liable to the hazard of frequent abatements ; and if many were made defendants the same inconvenience might happen, and additional expense would unavoidably be incurred.

By analogy to the case of creditors, a legatee is permitted to sue on behalf of himself and other lega- tees ; and as he might sue for his own legacy only, a suit by one on behalf of all the legatees has the same tendency to prevent inconvenience and expense as a suit by one creditor on behalf of all creditors of the same fund (11) ; but in a suit by a single legatee for

(7) See Att. Gen. v. Cornth- (m) Corry against Trist,i Dec. watte, 2 Cox, R. 44 ; an instance 1 7^6. BovA v.Kinder, 3 Swanst.

» , .« v -i i-4.„ I44)ii. Boddi/ v. Kent, 1 Meriv.

of a bill by a single creditor. J7> , , ^ „ , c. •

3 ° 361. Weld v. Bon/iam, 2 01m.

And see Haycock v. Haycock, & gtu. 91. Handfordv. Storie,

2 Ca. in Cha. 124. Bedford v. 2 Sim. & Stu. 196.

Leigh, Dick. 707. Hall v. Bin- (?l) 6 Ves. 779; and see

ney, 6 Ves. 738. Morse v. Sadler, 1 Cox, It. 352.

M 4

1 68 DEMURRERS.

his own legacy, unless the personal representative of the testator, by admitting assets for payment of the legacy, warrants an immediate personal decree against himself, by which he alone will be bound («), the court will direct a general account of all the lega- cies of the same testator, and payment of the legacy claimed rateably only with the other legacies, no preference being allowed amongst legatees in the administration of assets (o).

When the court has pronounced a decree for an account and payment of debts or legacies under which all creditors or legatees may claim, it will re- strain subsequent proceedings by a separate creditor or legatee, either at law or in equity, as the just administration of the assets would be greatly embar- rassed by such proceedings (p).

Where all the inhabitants of a parish had rights of common under a trust, a suit by one on behalf of

(n) See Boys v.Ford, 4Madd. the creditors and the specific

40. and pecuniary legatees. 2 Ca.

(0) To a bill by a specific or in Cha. 1 24. Parsons v. Neville,

pecuniary legatee for payment, 3 Bro. C. C 365. 16 Ves. 328.

neither the residuary legatees* And see 1 Sim. & Stu. 106. (see 1 Vern. 261 ; Waiwwright (/>) 1 Sch. & Lefr. 299, and

v. Waterman, 1 Ves. jun. 31 1 ; cases cited there, in note (b) ;

1 Madd. It. 448), nor generally, and see Douglas v. Clay, Dick.

(see 2 Ca. in Cha. 1 24 ; and see 393. Brooks v. Reynolds, Dick.

Morse v.Sadler, 1 Cox, R. 352,) 603. S. C. 1 Bro. C. C. 183.

any other of the legatees, need Rush v. Higgs, 4 Ves. 638.

be made parties ; but on such a Paxton v. Douglas, 8 Ves. 520.

bill by one of several residuary Terrewest v. Featherby, 2 Meriv.

legatees, he must in general 480. Curre v. Botvyer, 3 Madd.

bring before the court all the 456. Farrell v. Smith, 2 Ball

other persons interested in the & B. 337. 1 Jac. R. 122. Lord

residue, after satisfaction of v. Wormleighton, 1 Jac. R. 148.

DEMURRERS. \6g

himself and the other inhabitants was admitted ((/). It has been doubted whether the attorney-general ought not to have been a party to that suit (r), and accordingly, on a bill filed by some of the sufferers by a fire against the trustees of a collection made for the sufferers generally, it was objected at the hearing, that the attorney-general ought to have been a party, and that otherwise the decree would not be conclusive ; and the cause was accordingly ordered to stand over for the purpose of bringing the attorney-general before the court (V). But where a bill was brought for distribution of private contributions, the objection that the attorney-general was not a party was over- ruled (t).

For the application of personal estate amongst next of kin, or amongst persons claiming under a general description, as the relations of a testator or other person, where it may be uncertain who are all the persons answering that description, a bill has been admitted by one claimant on behalf of himself and the other persons equally entitled (11). And the necessity of the case has induced the court, especially of late years, frequently to depart from the general rule,

(q) l Ca. in Cha. 269. 84; but this point is not no-

Blackham against the Warden ticed by Atkyns. Nutt v.

and Society of Sutton Cohlficld. Broivn, 20 July 1745. Anon.

See Att. Gen. v. Heelis, 2 Sim. 3 Atk> 22?> , Sim & gtu> ^

& btu. 07. The attorney or solicitor-general

(r) See Att. Gen. v. Moses, is usuall a necessa t to

2 Madd. It. 294. / . . . ■ - ,

, , _ „ _ , ~ ^ suits relating to charity funds,

(.s) Overall v. Peacock, u Dec. _, rrr ... , ° J „.

1 737. See Weilbelovedv. Jones, See WeUbelox cd v. Jones, 1 Sim.

1 Sim. & Stu. 40. & Stu.40 ; and above, pp. 22.99. (/) Lee v. Carter, 17 Nov. (") See Ambl. 710; 1 Russ.

J 740, MS. N. reported 3 Atk. R. 166. «

170

DEMURRERS.

where a strict adherence to it would probably amount to a denial of justice ; and to allow a few persons to sue on behalf of great numbers having the same in- terest (11).

There are also other cases in which the interests of persons not parties to a suit may be in some degree affected, and yet the suit has been permitted to proceed without them, as a bill brought by a lord of a manor against some of the tenants, or by some of the tenants against the lord, on a question of common ; or by a parson for tithes against some of the parishioners, or by some of the parishioners against the parson, to establish a general parochial modus (#).

In many cases the expression that all persons in- terested in the subject must be parties to a suit, is not to be understood as extending to all persons who

(«) Chancey v. May, Prec. in Chan. 592 (Finch Ed.). Gilb. 230. 1 Atk. 284. Leigh v.Thomas, 2Ves. 312. Pearson v. Belchier, 4 Ves. 627. Lloyd v. Loaring, 6 Ves. 773. Good v. Blewitt, 13 Ves. 397. Cockbum v. Thompson, 16 Ves. 321. 3 Meriv. 510. Manning v. Thesiger, 1 Sim. & Stu. 106. Baldwin v. Lawrence, 2 Sim. & Stu. 18. Gray v. Chaplin, 1 Sim. & Stu. 267 ; but it seems

however, Van Sandau v. Moore,

I Russ. R. 441.

(x) 1 Atk. 283. 3 Atk. 247. Chaytorv. Trin. Coll. Anst. 841 .

I I Ves. 444 ; and see Adair v. New River Comp. 11 Ves. 429. 16 Ves. 328. l Jac. & W. 369. 2 Swanst. 282 ; but it appears that where it is at- tempted to proceed against some individuals representing a numerous class, as against churchwardens representing the

that except, perhaps, in the parishioners in respect of a

common cases of this kind, it is church-rate, it must be alleged

necessary to allege that the that the suit is brought against

parties are too numerous to be them in such representative

individually named, Wcldv.Bon- character, 5 Madd. 13. ham, 2 Sim. & Stu. 91. See?

DEMURRERS. I7I

may be consequentially interested. Thus, in the case of a bill which may be brought by a single creditor for satisfaction of his single demand out of the assets of a deceased debtor, as before noticed, although the interest of every other unsatisfied creditor may be consequentially affected by the suit, yet that interest is not deemed such as to require that the other cre- ditors should be parties ; notwithstanding, the decree if fairly obtained will compel them to admit the de- mand ascertained under its authority as a just demand, to the extent allowed by the court in the administra- tion of assets ; but they will not be bound by any account of the assets taken under such a decree. So in all cases of bills by creditors, or legatees, the persons entitled to the personal assets of a deceased debtor or testator, after payment of the debts or legacies, are not deemed necessary parties, though interested to contest the demands of the creditors and legatees ; and, if the suits be fairly conducted, they will be bound to allow the demands admitted in those suits by the court, though they will not be bound by any account of the property taken in their absence (?/).

To a bill to carry into execution the trusts of a will disposing of real estate by sale or charge of the estate, the heir at law of the testator is deemed a necessary party, that the title may be quieted against his demand; for which purpose the bill

(y) See the case of Bedford 303. Wainwright v. Waterman, v. Leigh, Dick. 707. And see 1 Ves. J. 31 3. Brown v. Dovoth- Lavoson v. Barker, 1 Bro. C. C. watte, 1 Madd. R. 448.

172 DEMURRERS.

usually prays that the will may be established against him by the decree of the court ; but if the testator has made a prior will containing a different disposi- tion of the same property, and which remains un- cancelled, and has not been revoked except by the subsequent will, it has not been deemed necessary to make the persons claiming under the prior will parties ; though if the subsequent will be not valid, those persons may disturb the title under it as well as the heir of the testator. If, however, the prior will is insisted upon as an effective instrument not- withstanding the subsequent will, the persons claim- ing under it may be brought before the court, to quiet the title, and protect those who may act under the orders of the court in executing the latter instru- ment (s).

If no heir at law can be found, the king's attorney- general is usually made a party to a bill for carrying the trusts of a devise of real estate into execution, supposing the escheat to be to the Crown, if the will set up by the bill should be subject to impeach- ment (a). But if any person should claim the es- cheat against the Crown, that person may be a necessary party.

If the heir at law of a testator who has devised a real estate on trusts should be out of the jurisdic- tion of the court, and that fact should be charged

(z) See on the general sub- (a) See the case of Att. Gen.

ject, Harris v. Ingledetv, 3 P. v. Mai/or of Bristol, 3 Madd.

Wms. 91. Leivis v. Naugle, 319. S. C. 2 Jac. & W. 294, 2 Vez. 431. i Vcs. jun, 29.

DEMURRERS. 1 ~ t)

and proved, the court will proceed to direct the execution of the trusts upon full proof of the due execution of the will and sanity o( the testator ; thouo-h that evidence cannot be read against the heir if he should afterwards dispute the will, and the court therefore cannot establish the will against him, or in any manner ensure the title under it against his claim > v''>\

Where real property in question is subject to an entail it is generally sufficient to make the first person in being-, in whom an estate of inheritance is vested, a party with those claiming prior interests, omitting those who may claim in remainder or re- version after such vested estate of inheritance (c) ; and a decree against the person having that estate of inheritance will bind those in remainder or rever- sion, though by failure of all the previous estates the estates then in remainder or reversion may after- wards vest in possession (d). It has therefore been determined that a person so entitled in remainder, and afterwards becoming entitled in possession, may appeal from a decree made against a person having a prior estate of inheritance, and cannot avoid the. effect o\^ the decree by a new bill (e).

Contingent limitations and executory devises to persons not in being may in like manner be bound

(b) See Will iantsv.Whmyates, 1 Eden, R. 518. S. C. 3 Bro. •2 Bro.C.C. 399; and see French P. C. 204. Toml. Ed.

v. Baron, 2 Atk. ISO. S. C. {d) See Lloi/d v. Jo1'.

Dick, 138. g Ves. 37. 16 Ves. 326.

(c) 9 Sch.& Lefr. 210; and (e) Gijfardv. Hurt, 1 Sch. see Anon. -2 Eq. Ca. Ab. 166. & Lefr. 386, »b. 411.

2 Vez. 49'J. Pclham v. Gregory,

174 DEMURRERS.

by a decree against a person claiming a vested estate of inheritance ; but a person in being claiming under a limitation by way of executory devise, not subject to any preceding vested estate of inheritance by which it may be defeated, must be made a party to a bill affecting his rights (/).

If a person entitled to an interest prior in limita- tion to any estate of inheritance before the court, should be born pending the suit, that person must be brought before the court by a supplementary pro- ceeding. And if by the determination of any con- tingency a new interest should be acquired, not subject to destruction by a prior vested estate of inheritance, the person having that interest must be brought before the court in like manner. And if by the death of the person having, when the suit was instituted, the first estate of inheritance, that estate should be determined, the person having the next estate of inheritance, and all the persons having prior interests, must be so brought before the court (o-).

Trustees of real estate for payment of debts or legacies may sustain a suit, either as plaintiffs or de- fendants, without bringing before the court the cre- ditors or legatees for whom they are trustees, which in many cases would be almost impossible ; and the rights of the creditors or legatees will be bound by the decision of the court against the trustees (/*).

The interests of persons claiming under the pos-

(y) See Handcock v. Shaen, (g) See 2 Sch. & Lefr. 210.

Coll. P. C. 122, and Anon. (h) See Franco v. Franco,

2 Eq. Ca. Abr. 166. Sherrit v. 3 Ves. 75 ; and see Curteis v.

Birch, 3 Bro. C. C. 229. Candler, 6 Madd. 123.

DEMURRERS. 1 75

session of a party whose title to real property is dis- puted, as his occupying tenants, under leases, are not deemed necessary parties ; though if he had a legal title, the title which they may have gained from him cannot be prejudiced by any decision on his rights in a court of equity in their absence ; and though if his title was equitable merely they may be affected by a decision against that title. Some- times, if the existence of such rights is suggested at the hearing, the decree is expressly made without prejudice to those rights, or otherwise qualified ac- cording to circumstances. If therefore it is intended to conclude such rights by the same suit, the persons claiming them must be made parties to it; and where the right is of a higher nature, as a mortgage, the person claiming it is usually made a party (J).

To a suit for the execution of a trust, by or against those claiming the ultimate benefit of the trust, after the satisfaction of prior charges, it is not necessary to bring before the court the persons claiming the benefit of such prior charges ; and therefore, to a bill for application of a surplus paid after payment of debts and legacies, or other prior encumbrances, the creditors, legatees, or other prior encumbrancers, need not be made parties (k). And persons having demands prior to the creation of such a trust may enforce those demands against the trustees without bringing before the court the persons interested under the trust, if the absolute disposition of the property is vested in the trustees. But if the trus-

(t) See 2 Vez. 450. (k) See Anon. 3 Atk. 572.

1/0 DEMURRERS.

tees have no such power of disposition, as in the case of trustees to convey to certain uses, the per- sons claiming the benefit of the trust must also be parties. Persons having specific charges on the trust-property in many cases are also necessary par- ties ; but this will not extend to a general trust for creditors or others whose demands are not distinctly specified in the creation of the trust, as their num- ber, as well as the difficulty of ascertaining who may answer a general description, might greatly embarrass a prior claim against a trust-property (/).

If a debt by a covenant or obligation binding the heir of the debtor is demanded against his real assets in the hands of a devisee under the statute 3 and 4 W. & M. c. 14, the heir must always be a party (ni); and if any assets have descended to the heir they are first applicable, unless the assets devised are charged with debts in exoneration of the heir. The personal representative of the deceased debtor is also generally a necessary party (/?), as a court of equity will first apply the personal, in exoneration of the real, assets.

(I) As to cestui que trusts out making the persons claim- being parties, see Kirk v. Clark, ing the other shares thereof Pre. in Cha. 275. Adams v. St. parties to the suit. Smith v. Leger,l Ball &B. 181. Calverley Snotv, 3 Madd. 10. v. Phelp, 6 Madd. 229. Doug- (m) Gawler v. Wade, 1 P. las v. Horsjall, 2 Sim. & Stu. Wms. 100. Warren v. Statvell, 1 84. It may here be observed, 2 Atk. 1 25. that if the trust-property be (h) Knight v. Knight, 3 P. personal, and its amount be as- Wms. 331. 3 P. Wms. 350. certained, one entitled to an 3 Atk. 406. 1 Eq. Ca. Abr. 73. aliquot part thereof may sue Lowe v. Farlie, 2 Madd. R. the trustees for the same, with- 101. 2 Sim. & Stu. 292.

DEMURRERS. 1 77

When there has been no general personal represen- tative, a special representative by an administration limited to the subject of the suit has been required. In other cases where a demand is made against a fund entitled to exoneration by general personal assets, if there are any such, a like limited admini- strator is frequently required to be brought before the court. This seems to be required rather to satisfy the court that there are no such assets to satisfy the demand : for although the limited admi- nistrator can collect no such assets by the authority under which he must act, yet as the person entitled to general administration must be cited in the eccle- siastical court before such limited administration can be obtained, and as the limited administration would be determined by a subsequent grant of general administration, it must be presumed that there are no such assets to be collected, or a general admini- stration would be obtained (o).

The personal representative thus brought before the court must be a representative constituted in England ; and although there may be personal assets in another country, and a personal representative constituted there, yet as he may not be amenable to the process of the court, and those assets must be

(0) See the case of Glass v. twelve months from the decease

Oxcnham, 2 Atk. 121. Where of the testator, be ohtained to

probate has been granted, and defend a suit, or to carry a de-

the executor has subsequently cree into execution, by virtue of

departed out of the realm, a spe- stat. 38 Geo. 3, c. 87. Rains-

cial administration may, after ford v. Taynton, 7 Ves. 460.

N

I78 DEMURRERS.

subject to administration according to the laws of that country, such a representative is not deemed a necessary party to substantiate a demand against the real assets in England (p).

Where a claim on property in dispute would vest in the personal representative of a deceased person, and there is no general personal representative of that person, an administration limited to the subject of the suit may be necessary to enable the court to proceed to a decision on the claim ; and when a right is clearly vested, as a trust-term, which is required to be assigned, an administration of the effects of the deceased trustee limited to the trust- term is necessary to warrant the decree of the court for assignment of the term.

In some cases, when it has appeared at the hear- ing of a cause, that the personal representative of a deceased person, not a party to the suit, ought to be privy to the proceedings under a decree, but that no question could arise as to the rights of such repre- sentative on the hearing, the court has made a decree directing proceedings before one of the masters of the court, without requiring the representative to be made a party by amendment or otherwise ; and has given leave to the parties in the suit to bring a representative before the master on taking the ac- counts or other proceedings directed by the decree, which may concern the rights of such representa- tive ; and a representative thus brought before the

(p) See Jauncy and Sealey, 2 Madd. R. 101. Logan v. 1 Vern 397. and Lowe v. Farlie, Farlie, 2 Sim. & Stu. 284.

DEMURRERS. Ijg

master is considered as a party to the cause in the subsequent proceedings (p).

In most cases the person having the legal title in the subject must be a party, though he has no bene- ficial interest, that the legal right may be bound by the decree of the court (q). Thus if a bond or judg- ment be assigned, the assignor as well as the assignee must be a party, for the legal right of action remains in the assignor (r).

In some cases, however, it may still remain a question of considerable difficulty who are necessary parties to a suit. It may indeed be doubtful until the decision of the cause what interests may be affected by that decision ; and sometimes parties must be brought before the court to litigate a ques- tion, who had, according to the decision, no interest in the subject ; and as to whom therefore whether plaintiffs or defendants, the bill may be finally dis- missed, though the court may make a decree on the subject as between other parties, which will be con- clusive on the persons as to whom the bill may be so dismissed, but which the court would not pronounce in their absence, if amenable to its jurisdiction.

Sometimes, too, a plaintiff, by waving a particular claim, may avoid the necessity of making parties

(p) See Fletcher v. Ash- (r) See Cathcart v. Lewis,

burner, l Bro. C. C. 497. x Ves. J. 463 ; but see Brace v.

1 Ves. jun. 69. Harrington, 2 Atk. 235, and {q) As to the case of a trus- BiaJce v# Jones^ 3 Anstr. 651.

tee, see Pre. in Cha. 275. 3 Bar- „ , n _ A„j,„«n„

j n . tV , See also lu/an v. Anderson,

nard, 325. Burt v. Dennet, », ,, „, T 11

2 Bro. C. C. 225. 7 Ves. 11. 3 Madd. 174- FAncy v. Jewell, Cholmondeley v. Clinton, 2 Me- 6 Madd. 165. 2 Sim. & Stu. r»v- 71- 253.

N 2

l8o DEMURRERS.

who might be affected by it, though that claim might be an evident consequence of the rights asserted by the bill against other parties. This, however, can- not be done to the prejudice of others.

Whenever a want of parties appears on the face of a bill, the want of proper parties is a cause of demurrer (s). But if a sufficient reason for not bringing a necessary party before the court is sug- gested by the bill ; as if a personal representative is a necessary party, and the representation is charged to be in litigation in the ecclesiastical court (t) ; or if the bill seeks a discovery of the parties interested in the matter in question for the purpose of making them parties, and charging, that they are unknown to the plaintiff; a demurrer for want of the necessary parties will not hold(w).

A demurrer for want of parties must show who are the proper parties : not indeed by name, for that

(s) Clark v. Lord Angler, 349. Qucere, whether a demur-

1 Ca. in Cha. 41. Nels. R. 78, rer for want of parties should be 93. Asiley v. Fountain?, Finch, to the whole bill. See E. I. R. 4. Weston v.Keighley, Finch, Company v. Coles, reported 3 R. 82. Ativood v. Hawkins, Swanst. 142, note; and see the Finch, R. 113. GaUex. Green- cases of Ativood v. Hawkins, hill, Finch, R. 202. 3 P.Wms. Finch, R. 1 13. Astley v. Foun- 311, note. Knight v. Knight, taine, Finch, R. 4, and Bressen- 3 P.Wms. 331. 2 Atk. 570. den v. Decreets, 2 Ca. in Cha. 1Eq.Ca.Ab.72. 2Eq.Ca.Ab. 197, cited 3 Swanst. 144. n. 165. Cockburn v. Thompson, ljX A ,

a xr 00 , r l n « 0 2 Atkyns> 5L; and see

16 Ves. 321. Cook v. Butt, , v „ J ,_. '

r iv/r a a ,n w j j c *, Jones v- Frost, 3 Madd. 1.

6 Madd. 53. Weld v. Bonham,

2 Sim. & Stu. 91 . Gray v. Chap- (u) Bowyer v. Covert, 1 Vern. lin, 2 Sim. & Stu. 267. Maule 95- Heath v. Percival, 1 P. v. Duke of Beaufort, 1 Russ. R. Wms, 682. 684.

DEMURRERS. 1 S 1

might be impossible ; 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 (#). In case of a demurrer for want of parties the court has permitted the plaintiff to amend, when the de- murrer has been held good upon argument (j/).

IX. The court will not permit a plaintiff to de- mand, by one bill, several matters of different natures against several defendants (z) ; for this would tend to load each defendant with an unnecessary burthen of costs, by swelling the pleadings with the state of the several claims of the other defendants, with which he has no connection. A defendant may therefore demur, because the plaintiff demands several matters of different natures of several defendants by the same bill (a). But as the defendants may combine toge- ther to defraud the plaintiff of his rights, and such a combination is usually charged by a bill, it has been held that the defendant must so far answer the bill as to deny combination (/>). In this however,

(.r) Upon this subject see 94. Kaye v. Moore, 1 Sim. &

C Ves. 781 ; 11 Ves. 369 ; Stu. 61. Deiv v. Clarke, 1 Sim.

lG Ves. 325; 3 Madd. 62. & Stu. 108. Turner v. Robinson,

(y) Bressenden v. Decreets, 1 Sim. & Stu. 313, and SkacJcett

2 Ch. Ca. 197. v. Macaulay, 2 Sim.& Stu. 79.

(z) See 5 Madd. 14G. (b) Powell v. Ardcrne, 1 Vern.

(a) Bcrkev. Harris, Hardr. 4lC- As to the interpretation

337. And, as late instances of to be put upon this passage,

demurrers for multifariousness, see 8 Ves .52 7 ; and as to general

see Ward v. Cooke, 5 Madd. charge of combination, see sup.

122. Salvidge v. Hyde, 5 Madd. P- 4°> 41 • The proposition in

138. S. C. 1 Jac. R. 153. Tur- the text, however, so far as it

ner v. Doubleday, 6 Madd. 94. may apply to the usual general

Exeter Coll.v. Rowland, Ci Madd. charge of combination, seems

N 3

182

DEMURRERS.

the defendant must be cautious ; for if the answer goes farther than merely to deny combination, it will over-rule the demurrer (c). A demurrer of this kind will hold only where the plaintiff claims several matters of different natures ; but when one general right is claimed by the bill, though the defendants have separate and distinct rights, a demurrer will not hold (el). As where a person claiming a general right to the sole fishery of a river, filed a bill against several persons claiming several rights in the fishery, as lords of manors, occupiers of lands, or otherwise (e). For in this case the plaintiff did not claim several separate and distinct rights, in opposition to several separate and distinct rights claimed by the de- fendants ; but he claimed one general and entire right, though set in opposition to a variety of dis- tinct rights claimed by the several defendants. So where a lord of a manor filed a bill against more than thirty tenants of the manor, freeholders, copyholders, and leaseholders, who owed rents to the lord, but had confused the boundaries of their several tene- ments, praying a commission to ascertain the bounda- ries; and it was objected at the hearing, that the

now to have been over-ruled, Brookes v. Lord Whitivorth, i Madd. R. 86. Sahidge v. Hyde, 5 Madd. 138. And the ultimate decision in the latter case upon appeal, reversing the former, does not appear to have had any reference to that pro- position. S. C. 1 Jac. 151.

(c) Hester v. Weston, 1 Vern. 463-

(d) See the cases cited above, pp. 145, 146. And see Buccle v. Atleo, 2 Vern. 37. As to cases of infringement of copyrights and patents, see Dilly v. Doig, 2 Ves. jun. 486.

(e) Mayor of York v. Pilk- ington, 1 Atk. 282.

DEMURRERS. 1 83

suit was improper, as it brought before the court many parties having distinct interests ; it was an- swered, that the lord claimed one general right, for the assertion of which it was necessary to ascertain the several tenements, and a decree was made ac- cordingly (/).

As the court will not permit the plaintiff to de- mand by one bill several matters of different natures against several defendants, so it will not permit a bill to be brought for part of a matter only ; but to prevent the splitting of causes, and consequent mul- tiplicity of suits, will allow a demurrer upon this ground ( g).

A discovery being compelled upon a bill praying relief, for the purpose of enabling the plaintiff to obtain that relief, the discovery is in general inci- dental to the relief (//), and a demurrer to the relief consequently extends to the discovery likewise (i). But as the court entertains a jurisdiction in certain cases for the mere purpose of compelling a discovery, without administering any relief, it was formerly conceived that though a plaintiff prayed by his bill relief to which he was not entitled, he might yet

(/) Magdalen Coll. against 10 Ves. 544; 3 Meriv. 502.

Athill and others, at the Rolls, It may happen, however, that

2G Nov. 1753. See the distinc- the relief sought may be con-

tions taken in Berke v. Harris, sequential to discovery to which

Hardres, 337. the plaintiffis entitled, in which

( g) 1 Vern. 29. Edgworth v. case, a general demurrer would

Sivift, 4 Bro. P. C. 654, Toml. perhaps be over-ruled. See

ed. See above, p. 146. Brandon v. Sands, 2 Ves.

(h) 1 Sim. & Stu. 93. J. 514; Brandon v. Johnson,

(i) Sec Baker v. Mellish, ib. 517.

N 4

184 DEMURRERS.

show a title to a discovery ; and therefore, thougti a demurrer might hold to the relief, the defendant might notwithstanding be compellable to answer to the discovery, the bill being then considered as in effect a bill for a discovery merely (k). This, how- ever, has since been determined otherwise .(/) ; and where a plaintiff entitled to a discovery added to his bill a prayer for relief (t/i), a demurrer has been allowed (;/). And where a defendant had demurred to the discovery sought by a bill, for want of title in the plaintiff to require the discovery, but had omitted to demur to the relief prayed, to which that dis- covery was merely incidental, it was conceived the demurrer must, in point of form, be over-ruled ; for the demurrer, applying to the discovery only, admit- ted the title to relief, and consequently admitted the title to the discovery, which was only incidental to

(k) See Fry v. Penn, 2 Bro. C. C. 280.

(1) See Price v. James, 2 Bro.

C. C. 319-

(m) It is presumed, that in order to the defendant being thus able by demurrer wholly to protect himself against the interference of the court, it must appear from the manner in which the plaintiff states his case, that he seeks the discovery as incidental to the relief. See cases in the next note.

(n) Collis v. Sivayne, 4 Bro. C. C. 480. Loker v. Rolle, 3 Ves. 4. Ryvcs v. Pyxes, 3

Ves. 343. 6 Ves. 63. 6 Ves. 680. 8 Ves 3. Gordon v. Simpkin- son, 11 Ves. 509. 17 Ves. 216. 1 Ves. & Bea. 539. 2 Ves. & Bea. 328. Jones v. Jones, 3 Meriv. 161. 3 Meriv. 502. This may probably have the effect of compelling a plaintiff, in a doubtful case, to frame his bill for a discovery only in the first instance; and, having obtained it, by amending his bill to try the question whether he is also entitled to relief; which was formerly a frequent practice, and possibly a greater inconvenience.

PEMUHHERS. l8$

the relief (0). But though a plaintiff may be entitled to the relief he prays, there may yet be reasons to induce a court of equity to forbear compelling a dis- covery (p).

It remains therefore to consider the objections to a bill which are causes of demurrer to discovery only. These are, I. That the case made by the bill is not such in which a court of equity assumes a jurisdic- tion to compel a discovery : II. That the plaintiff has no interest in the subject, or no interest which enti- tles him to call on the defendant for a discovery : III. That the defendant has no interest in the subject 1 to entitle the plaintiff to institute a suit against him even for the purpose of discovery : IV. Although both plaintiff and defendant may have an interest in the subject, yet that there is not that privity of title between them which gives the plaintiff a right to the discovery required by his bill : V. That the discovery if obtained cannot be material : and, VI. That the situation of the defendant renders it im- proper for a court of equity to compel a discovery.

I. Where a bill prays relief the discovery if material to the relief being incidental to it, a plain- tiff showing a title to relief also shows a case in which a court of equity will compel discovery, unless some circumstance in the situation of the

(o) Morgan v. Harris, in be instances in which a defend-

Ch. 31, Oct. 1786, reported ant, although he should think

2 Bro. C. C. 121. Waring v. proper to give the discovery,

Mackreth, Forrest. 129. may yet demur to the relief.

(p) A plaintiff may be en- 2 Atk. 157. Hodgkin v. Long- titled to relief in equity, inde- den, 8 Ves. 2. Todd v. Gee, pendently of the discovery, 17VCS. 273. 1 Swanst. 294. And there may

1 86 DEMURRERS.

defendant renders it improper. But where the bill is a bill of discovery merely, it is necessary for the plaintiff to show by his bill a case in which a court of equity will assume a jurisdiction for the mere purpose of compelling a discovery. This jurisdic- tion is exercised to assist the administration of justice in the prosecution or defence of some other suit, either in the court itself or in some other court (q). Where the object of a bill is to obtain a discovery to aid the prosecution or defence of a suit in the court itself, as the court has already jurisdiction of the subject, to state the suit depending is sufficient to give the court jurisdiction upon the bill of discovery. But if a bill is brought to aid, by a discovery, the prose- cution or defence of any proceeding not merely civil in any other court, as an indictment or information, a court of equity will not exercise its jurisdiction to compel a discovery, and the defendant may demur (r). And in the case of suits merely civil in a court of ordinary jurisdiction, if that court can itself compel the discovery required, a court of equity will not in- terfere (s). Therefore, where a bill was filed for a discovery of the value of the respective real and per- sonal estates of the inhabitants of a parish in which a church rate had been assessed, and of the applica-

(q) See Moodalyv.Moreton, against Del Ris and Vallego>

Dick. 652. S.C. 1 Bro. C. C. in Chan. 11th July 1769.

469. Bishop of London v. (r) 2 Ves. 398 ; and see

Fytche, 1 Bro. C. C. 96. Car- Thorpe v. Macauley, 5 Madd.

dale v. Watkins, 5 Madd. 18. 218. Shacked v. Macaulay>

A discovery has been compelled 2 Sim. & Stu. 79.

to aid the jurisdiction of a fo- (s) 1 Atk. 288. 1 Vez. 205.

reign court, Crowe and others Anon. 2 Vez. 451.

DEMURRERS. iSj

tion of the money collected, a demurrer was allowed; because the ecclesiastical court, to which the ordinary- jurisdiction belonged, was capable of compelling the discovery (t).

II. A bill must show an interest in the plaintiff in the subject to which the required discovery re- lates^), and such an interest as entitles him to call on the defendant for the discovery. Therefore where a plaintiff filed a bill for a discovery merely, to sup- port an action, which he alleged by his bill he in- tended to commence in a court of common law, al- though by this allegation he brought his case within the jurisdiction of a court of equity to compel a dis- covery, yet the court being of opinion that the case stated by the bill was not such as would support an action, a demurrer was allowed (V) ; for unless the plaintiff had a title to recover in an action at law, supposing his case to be true, he had no title to the assistance of a court of equity to obtain from the confession of the defendant evidence of the truth of the case (j/). And upon a bill filed by a creditor, alleging that he had obtained judgment against his debtor, and that the defendant to deprive him of the benefit of his judgment had got into his hands goods of the debtor under pretence of a debt due

(t) Dunn v. Coates, l Atk. (x) Debbieg and Lord Howe

288. in Chan. Hil. 1 782 ; cited 3 Bro.

(u) Ramerex. Rawlins, Rep. C.C.i 55. Wallis v. Duke of

Temp. Finch. 36. Newman v. Portland, 3 Ves. 494. Lord

Holder, ib. 44; and sec 2 Vez. Kensington v. Mansell, 13 Ves.

247. Northlcigh v. Luscombc, jun. 240.

Amb\.6i'2,andfVrigktx.Plum- (//) See The Mayor of Lon-

trce, 3Madd. 481. don v. Levi/, 8 Ves. 398.

1 88 DEMURRERS,

to himself, and praying a discovery of the goods ; the defendant demurred, because the plaintiff had not alleged that he had sued out execution, and because until he had so done the goods were not bound by the judgment, and consequently the plaintiff had no title to the discovery ; and the demurrer was allowed (3/).

III. Unless a defendant has some interest in the subject he may be examined as a witness, and there- fore cannot in general be compelled to answer a bill for a discovery (V) ; for such a bill can only be to gain evidence, and the answer of the defendant cannot be read against any other person, not even against another defendant to the same bill (a). But if the bill states that the defendant has or claims an interest, a demurrer, which admits the bill to be true, of course will not hold (/>), though the defendant has no interest; and he can then only avoid answering the bill by plea or disclaimer. There seems to be an exception to the rule in the case of a corporation ; for as a corporation can answer no otherwise than under their common seal, and therefore, though they answer falsely, there is no remedy against them for perjury, it has been usual, where a discovery of en- tries in the books of the corporation, or of any act done by the corporation, has been necessary, to make

(y) Angell v. Draper, 1 Vern. note (e). Fenton v. Hughes, 399. But see Taylor \. Hill, 7 Ves. 287. 14 Ves. 252. Hoiv

1 Eq. Ca. Ab. 132. v. Best, 5 Madd. 19.

(z) Steward v. E. I. Comp. (a) 2 Vern. 380. 3 P. Wins.

2Vern-38o. Dineleyv.Dinelcy, 311, and ib. note (/?)•

2 Atk. 394. Plummer v. May, (b) l Vez. 426. 1 Vez. 426. 1 Ves. jun. 294,

DEMURRERS- 189

their secretary or book-keeper or other officer a party (c) j and a demurrer because the bill showed no claim of interest in the defendant has been in such case overruled (d). So where bills have been filed to impeach deeds on the ground of fraud, attornies who have prepared the deeds, and other persons concerned in obtaining them, have been frequently made defendants, as parties to the fraud complained of, for the purpose of obtaining a full discovery ; and no case appears in the books of a demurrer by such a party because he had no claim of interest in the matter in question by the bill. Indeed an attorney under such circumstances, being brought as a party to the suit to a hearing, has been ordered to pay costs (e) ; apparently on the same ground as costs were awarded against arbi- trators in the cases of their misconduct before noticed (/).

IV. Although both plaintiff and defendant may have an interest in the subject to which the disco- very required is supposed to relate, yet there may not be that privity of title between them which can give the plaintiff a right to the discovery. Thus where a bill was filed by a person claiming to be lord of a manor against another person also claim- ing to be lord of the same manor, and praying, amongst other things, a discovery in what manner

(c) Anon. 1 Vern. 117. (e) Bennet v. Fade, 2 Atk.

(rf) Wych v. Meal, 3 P.Wms. 324. 1 Sch. & Lefr. 227. Fen-

310. 7"Ves. jun. 289. i4.Ves. uoickw. Reed, 1 Meriv. 114.

i^l.etseq. Gibbons v. Waterloo r f\ Vid. sup. p. 1G1. Bridge Cow p. 5 Pri. Ex. R. 491 .

190 DEMURRERS.

the defendant derived title to the manor, the de- fendant demurred, because the plaintiff had shown no right to the discovery, and the demurrer was allowed (g).

So where a bill was filed by a person claiming under a grant from the duchy of Lancaster, to be bailiff of a liberty within the duchy, with a right to all waifs, estrays, and other casualties within the liberty, and all fees and perquisites respecting the same, against the owner of an inn in the liberty, and his tenants, alleging that the inn-yard had been used as a common pound within the liberty for all waifs and strays and casualties ; and that the tenant, under demise from the owner, had seized and taken all waifs and strays and other casualties ; and received the fees and perquisites thereon ; and required the owner to discover how he derived title thereto, and what leases or demises he had made thereof; a de- murrer to the discovery was allowed (h). In general, where the title of the defendant is not in privity, but inconsistent with the title made by the plaintiff, the

(g) Adderley and Sparrow, were cited ; and Lord Lough-

in Chan. Hil. 1779. borough mentioned a case of

(h) Ritson v. Sir John Dan- Sir William Wake and Conyers

vers, in Duchy C of Lancaster, before Lord Northington. See

28 Oct. 1787, by the Chancel- also Corporation of Dartmouth

lor, assisted by Lord Lough- against Seale in Chan. 1 8 Dec.

borough and Mr. JusticeWilson. 1717. rep. 1 Cox. R. 416. See

The cases of Sparrow v. Ad* also Ritson v. Sir John Danvers,

derley, Hungerford v . Gore- 24 Nov. 1 790, on demurrer to

ing, a Vern. 38, Stapleton v. an amended bill, Baron Thom-

Sherrard, 1 Vern. 212, Sher- son assisting the Chancellor;

bone v. Clerk, 1 Vern. 273, and and Att. Gen. v. Sir JohnDan-

Welby and D. of Rutland, 2 vers, 25 Jan. 1792. Grose J.

Brown P. C. 39 Toml. Ed. and Thomson B. assisting.

DEMURRERS. 191

defendant is not bound to discover the evidence of the title under which he claims (i). And therefore, on a bill filed by an heir ex parte materna 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 paterna, but that the devisee set up a title under a release from his father as heir ex parte paterna of the tes- tator, and praying a conveyance to the plaintiff, and seeking a discovery in what manner the father claimed to be heir ex parte paterna, and the parti- culars of the pedigree, under which he claimed, a demurrer to that discovery was allowed (k).

V. As the object of the court in compelling a dis- covery is either to enable itself or some other court to decide on matters in dispute between the parties, the discovery sought must be material, either to the relief prayed by the bill, or to some other suit ac- tually instituted, or capable of being instituted. If therefore the plaintiff does not show by his bill such a case as renders the discovery which he seeks material to the relief, if he prays relief, or does not show a title to sue the defendant in some other court (/), or that he is actually involved in litigation

(i) Stroud v. Deacon, 1 Vez. 37. Buden v. Dore, 2 Vez. 445. Sampson v. Swetteiiham,^ Madd. 16. Tyler v. Drayton, 2 Sim. & Stu. 309, and the cases therein cited ; and see Cham- berlain v. Knapp, 1 Atk. 52.

(k) Ivie v. Kekexvich in Ch.

27 July, 1795, rep. 2 Ves. J. 679.

(I) Debbieg and Lord Howe, in Chan. Hil. 1782 ; cited 3 Bro. C. C. 155. Wallis v. Duke of Portland, 3 Ves. 494. The Mayor of London v. Levy, 8 Ves. 398. Lord Kensington, v. Mansell, 13 Ves. jun. 240.

1Q2 DEMURRERS,

with the defendant, or liable to be so, and does Hot also show that the discovery which he prays is ma- terial to enable him to support or defend a suit, he shows no title to the discovery, and consequently a demurrer will hold (?ti). Therefore where a bill filed by a mortgagor against a mortgagee to redeem sought a discovery, whether the mortgagee was a trustee, a demurrer to the discovery was allowed. For as there was no trust declared upon the mort- gage, it was not material to the relief prayed whe- ther there was any trust reposed in the defendant or not (ri). So where a bill was filed by a lord of a borough, praying, amongst other things, a dis- covery, whether a person applying to be admitted tenant was a trustee, the defendant demurred (0), it being wholly immaterial to the plaintiff's case whether the defendant was a trustee or not. And where a bill was brought for a real estate, and sought discovery of proceedings in the ecclesiastical court upon a grant of administration, the defendant demurred to that discovery, the proceedings in the ecclesiastical court being immaterial to the plain- tiff's case (p). Again, where a bill, to establish an agreement for a separate maintenance for the defendant's wife, prayed a discovery of ill treat- ment of the wife, to make her recede from the agreement, the defendant demurred to the dis-

(m) See cases cited last page, (n) Harvey v. Morris, Rep.

note (1); and see 1 Vez. 249, Tem. Finch. 214,

1 Bro. C. C. 97, and Askatn . T , „_ ■

v. Thompson, 4 Pri. Exch. R. <°) Lord Montague v. Dud-

330. Cardale v. Watkins, man, 2 Vez. 396.

5 Madd. 19. (p) 2 Atk. 388.

DEMURRERS. 1 y J

covery (y) which could not be material to the case made by the bill. But in general, if it can be sup- posed that the discovery may in any way be material to the plaintiff in the support or defence of any suit, the defendant will be compelled to make it(r). Thus where a bishop filed a bill against the patron of a living and a clerk presented by him, to discover whether the clerk had given a bond of resignation, and the patron demurred, because the discovery either was such as might subject him to penalties and for- feitures, or it was immaterial to the plaintiff, the demurrer was over-ruled ; the court declaring a clear opinion that the bond was not simoniacal, but con- ceiving that the discovery might be material to sup- port a defence to a quart impedit, upon this ground, " that the bond put the clerk under the power of " the patron, in derogation of the rights of the or- " dinary (*)."

VI. The situation of a defendant may render it improper for a court of equity to compel a discovery, either because the discovery may subject the defend-

(q) Hincks v. Nelthrope, against the patron, and he con-

l Vern. 204. sequently lost his presentation*

(r) 1 Vez. 205 ; and see Perhaps, therefore, the over-

Richards v. Jackson, 18 Ves. ruling the demurrer was in con-

472. 1 Madd. R. 192. Alt. Gen. tradiction to the principles on

v. Berkeley, 2 Jac. & W. 291. which courts of equity have

(s) Bishop of London, against proceeded in the cases con-

Ffytche, in Chan. Trin. 1781. sidered under the next head.

In consequence of this decision See the case reported in 1 Bro.

an answer was put in admitting C. C. 96, and Cunningham's

the bond ; and a quare impedit Law of Simony. See also Grey

being brought, it was finally v. Hesketh, Ambl. 268. determined in the house of lords

O

I94 DEMURRERS.

ant to pains or penalties, or to some forfeiture, or something in the nature of a forfeiture ; or it may- hazard his title in a case where in conscience he has at least an equal right with the person requiring the discovery, though that right may not be clothed with a perfect legal title (t).

It is a general rule, that no one is bound to answer so as to subject himself to punishment, in whatever manner that punishment may arise, or whatever may be the nature of the punishment (u). If therefore a bill requires an answer which may (#) subject the defendant to any pains or penalties, he may demur to so much of the bill (?/). As if a bill charges any thing which, if confessed by the answer, would subject the defendant to any criminal pro- secution (z), or to any particular penalties, as an usurious contract (a), maintenance (b\ champerty (c), simony (d). And in such cases, if the defendant is

(t) See Ivy v. Kekevoich, 2 Campbel, l Vez. 246. Chet-

Ves. J.679. Lord Shaftesbury toynd v. Lindon, 2 Vez. 451.

v. Arroivsmith, 4 Ves. 66. Cartivright v Green, 8 Ves.

13 Ves. 251. 15 Ves. 378. 405. 14 Ves. 65.

Wright v. Plumtrce, 3 Madd. (a) Fenton v. Blomer, Tothill

481. Gleggv. Legh,^. Madd. 193. 135. Earl of Suffolk v. Green,

(u) 2 Vez. 245, and the au- 1 Atkyns 450. 2 Atk. 393.

thorities referred to in note, 22 Vin. Ab.Usury,Q.4. Whit-

1 £q. Ca. Ab. 131, 11 Ves. more v. Francis, 8 Pri. Ex. R.

525, 2 Swanst. 214. 616.

(x) 1 Atk. 539, 1 Swanst. 305. {b) Penrice v. Parker, Rep.

(y) See Billing v. Flight, 1 Temp. Finch. 75. Sharp v.

Madd. R. 230. And it may be Carter, 3 P.Wms. 375. Wallisv.

observed, that such a demurrer Duke of Portland, 3 Ves. 494.

will not be regarded as any ad- (c) See 2 Sim. & Stu. 252.

mission of the truth of the (d) Att. Gen. v. Sudell, Prec.

charge; 16 Ves. 69. inCh. 214. lMeriv. 401. But

(2) East India Company v. see p. 193, note is)

DEMURRERS. lgt$

not obliged to answer the facts he need not answer the circumstances, though they have not such an immediate tendency to criminate (d).

If the plaintiff is alone entitled to the penalties, and expressly waves them by his bill, the defendant shall be compelled to make the discovery ; for it can no longer subject him to a penalty (e). As if a rector, or impropriator or vicar, files a bill for tithes, he may wave the penalty of the treble value (/), to which he is entitled by the statute of 2 & 3 Edward VI. and thus become entitled to a discovery of the tithes subtracted. And though a discovery may subject a defendant to penalties to which the plaintiff is not entitled, and which he consequently cannot wave, yet if the defendant has expressly covenanted not to plead or demur to the discovery sought, which is the common case with respect to servants of the East- India company, he shall be compelled to answer (g). Where, too, a person by his own agreement subjects himself to a payment in the nature of a penalty if he does a particular act, a demurrer to discovery of that act will not hold (h). Thus where a lessee covenanted not to dig loam, clay, sand or gravel, except for the purpose of building on the land demised, with a proviso that if he should dig any of those articles for

(d) 1 Vez. 247, 248. 19 Ves. Bumsted, 1 Eq. Ca. Ab. 77. 227, 228. E. I. Comp, v. Atkins, 2 Vez.

(e) Lord Uxbridge v. Stave- 108. And see Paxton v. land, 1 Vez. 56. And see 1 Douglas, 16 Ves. 239.

Vern. 1 29. Bullock v. Richard- (h) See Morse v. Buckworth ,

son, 1 1 Ves. 373. 2 Vern. 443. E. I. Comp. v.

(/) Anon. 1 Vern. Go. Neave, 5 Ves. 173.

(g) South Sea Comp. v.

O 2

lgG DEMURRERS.

any other purpose, he should pay to the lessor twenty shillings a cart-load, and he afterwards dug great quantities of each article ; upon a bill for discovery of the quantities, waving any advantage of possible forfeiture of the term ; a demurrer of the lessee, be- cause the discovery might subject him to a payment byway of penalty, was over-ruled (g).

And a party shall not protect himself against relief in a court of equity, by alleging that if he answers the bill filed against him, he must subject himself to the consequences of a supposed crime, though the court will not force him by his own oath to subject himself to punishment; and therefore in the case of a bill to inquire into the validity of deeds upon a suggestion of forgery, the court has entertained juris- diction of the cause ; and though it has not obliged the party to a discovery of any fact which might tend to show him guilty of the crime, has directed an issue to try whether the deeds were forged (k).

It should seem that a demurrer will also hold to any discovery which may tend to show the defendant guilty of any moral turpitude, as the birth of a child out of wedlock (i). But a mother has been com- pelled to discover where her child was born, though it might tend to show the child to be an alien (k) ; for that was not a discovery of any illegal act, or

(g) Richards against Cole, (i) Parker, 163. 2 Vez. 451.

or Brodrepp against Cole, in Franco v. Bolton, 3 Ves. 368.

Chan. Hil. vacation 1779. King v. Burr, 3 Meriv. 698.

(h) 2 Vez. 246. See also (A) Att. Gen. v. Duples&is,

1 Eq. Ca. Ab. 131, p. 11. Att. 2 Vez. 287, ib. 494. Gen.v. Sudell. Free. in Cha, 214.

DEMURRERS. 1 97

of any act which could affect the character of the defendant (/).

A demurrer will likewise hold to a bill requiring a discovery which may subject the defendant to any forfeiture (m) of interest : as if a bill is brought to discover whether a lease has been assigned without licence (ri) ; or whether a defendant, entitled during widowhood (o), or liable to forfeiture of a legacy in case of marriage without consent (p), is married ; or to discover any matter which may subject a defendant entitled to any office or franchise to a quo warranto (jj). But if the plaintiff is alone entitled to the benefit of the forfeiture, and expressly waves (r) it by the bill, as in the case of a bill for discovery of waste (/), a demurrer will not hold ; for the waver gives the court a ground of equity to award an injunction, if the plaintiff sues for the forfeiture (t). If the dis- covery sought is of a matter which would show the defendant incapable of having any interest or title ; as whether a person claiming a real estate under a devise was an alien, and consequently incapable of taking by purchase (u) ; a demurrer will not hold. And where a devise over of an estate in case of marriage was considered as a conditional limitation

(I) l Meriv. 400. (y) 1 Eq. Ca. Ab. 131, p. 10.

(???) Tothill, 69. (r) 1 Vez. 56. See above,

(n) Lord Uxbridge v. Stave- p. 195, note {e).

land, 1 Vez. 56. 0) si Atk. 393. Att. Gen. v.

(0) Monnins v. Monnins, Vincent, 2 Eq, Ca. Ab. 378.

2 Chan. Rep. 68. S. C. cited Com. R. 664.

(p) Chauncey v. Tahourden, (t) 1 Vez. 56.

2 Atk. 392. Chancey v. Fen- (w) Att. Gen. v. Duplcssis,

houlet, 2 Vez. 265. Parker, 144.

I98 DEMURRERS.

and not as a forfeiture, a demurrer to a bill for a discovery of marriage was over-ruled (V).

A defendant may in the same manner demur to a discovery which may subject him to any thing in the nature of a forfeiture (y) ; as where a discovery was sought whether the defendant was educated in the popish religion, by which he might have incurred the incapacities in the statute 11 and 12 Will. III. (z) ; or whether a clergyman was presented to a second living, which avoided the first (a).

But where a person against whom a commission of bankrupt had issued, had brought actions against the assignees under the commission, disputing its validity, and particularly insisting that he had not been a trader within the meaning of the bankrupt laws, and in those actions the validity of the commission had been established ; and the assignees filed a bill against him, stating these facts, and that being harassed by these actions, and threatened with other actions, they were not able to distribute the effects under the com- mission, and therefore praying a perpetual injunction to restrain further actions, and requiring a discovery amongst other things, of acts of trading, a demurrer to that discovery was over-ruled (ft).

(x) 2 Atk. 393. Lucas v. Evans, 3 Atk. 260. 2 Vez. 265.

{y) 3 Atk. 457.

(z) Jones v. Meredith, Com. 661 ; and see ib. 664. Smith v. Read, 3 Bac. Ab. 800. 1 Atk. 527. 2 Vez. 394. The 18 Geo. 3, c. 60, the 31 Geo. 3, c. 32, and the 43 Geo. 3, 03 9,

do not entirely remove these incapacities.

(a) Boteler v. Allington, 3 Atk. 453.

(b) Chambers v. Thomson,

1 Nov. 1793. rep. 4 Bro. C. C. 434, affirmed on rehearing, March 1794. See Protector and Lord Lumley, Hardres 22. See also Selby v. Crew, 1 Anstr. 504.

DEMURRERS. 1Q$

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, this cir- cumstance in the situation of the defendant renders it improper for a court of equity to compel him to make any discovery which may hazard his title ; and if the matter appears clearly on the face of the bill, a demurrer will hold (c). The most obvious case is that of a purchaser for a valuable consideration without no- tice of the plaintiff's claim (</). Upon the same principle 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, the jointure, and the facts appear sufficiently on the face of the bill ; though ordinarily advantage is taken of this defence by way of plea (e).

This arises from that singularity in the jurisprudence of this country, produced by the establishment of the extraordinary jurisdiction of courts of equity distinct from the ordinary jurisdictions noticed in a former page, and necessarily creating a distinction between legal and equitable rights (/). Where the courts of equity are called upon to administer justice upon grounds of equity against a legal title, they allow a superior strength to the legal title when the rights of the parties are in conscience equal ; and where a legal title may be enforced in a court of ordinary jurisdic-

(c) See Glcgg v. Leg!/, 4 (e) Chamberlain v. Knapp, Madd. 193. 1 Atk. 52. 2 Vez. 450, 2 Vez.

(d) 2 Ves. J. 458. Sweet 661.

v. Southcote, 2 Bro. C. C. 66. {/) '2 Vez. 573, 574-

O 4

200 DEMURRERS.

tion to the prejudice of an equitable title, the courts of equity will refuse assistance to the legal against the equitable title where the rights in conscience are equal.

If the grounds on which a defendant might demur to a particular discovery appear clearly on the face of the bill, and the defendant does not demur to the discovery, but, answering the rest of the bill, declines answering to so much, the court will not compel him to make the discovery (g*). But in general, unless it appears clearly by the bill that the plaintiff is not entitled to the discovery he requires, or that the defendant ought not to be compelled to make it, a demurrer to the discovery will not hold ; and the defendant, unless he can protect himself by plea, must answer.

Where the sole object of a bill is to obtain a dis- covery, some grounds of demurrer, which if the bill prayed relief would extend to discovery as well as to the relief, will not hold. Thus a demurrer to a bill for a discovery merely will not hold for want of parties, for the plaintiff seeks no decree ; nor, in general, for want of equity in the plaintiff's case for the same reason ; nor because the bill is brought for the discovery of part of a matter, for that is merely a demurrer because the discovery would be insufficient. But it should seem a demurrer would . hold to a bill for discovery of several distinct matters against several distinct defendants. For though a defendant is always eventually paid his costs upon

(g) See Wrottesleyv. Bendish,^Y. Wms. 235. 1 Meriv. 401. See below, Chap. 2. sect. 2. part 3.

DEMUtlllfcES. 20!

a bill of discovery if both parties live, and the plain- tiff by amendment of his bill does not extend it to pray relief, yet the court ought not to permit the defendant to be put to any unnecessary expense, as either the plaintiff or defendant may die pending the suit (g).

After an answer to a bill of discovery, when time for excepting to it as insufficient is expired, the de- fendant may apply for costs as a matter of course (Ji), unless the plaintiff shall in the mean time have obtained an order to amend his bill ; which may be done either to obtain a fuller discovery, or if the case appearing on the answer will warrant the pro- ceeding, by adding to the bill a prayer for relief (i).

Demurrers have hitherto been noticed with refer- ence only to original bills. As every other kind of bill is a consequence of an original bill, many of the causes of demurrer which will apply to an original bill will also apply to every other kind ; but the peculiar form and object of each kind afford distinct causes of demurrer to each. Thus if a bill of revivor does not show a sufficient ground for reviving the suit (k), or any part of it (/), either by or against (7;/)

(g) See next page and notes SeeBaring v. Prinsep, 1 Madd-

(p) and (q). R- 526.

(h) See 4 Ves. 746. Hetvart (»') °n this subject see But-

v. Semple, 5 Ves. 86. Noble tenvorth v. Bailey, i5 Ves. 35S.

v. Garland, 1 Madd. 344- But, <*> Humphreys v. Incledon

. ... Dick. 38. Harris v. Pollard,

it seems that the time within „ p yyms r>4g

which the exceptions must be (/) x Eq> Ca_ Ab> % ^

filed, has latterly, under special (7K) University College v.

circumstances, been extended, Foxcrqfl, 2 Ch. Rep. 244-

202 DEMURRERS.

the person by or against whom it is brought, the defendant may by demurrer show cause against the revival (w). Indeed though the defendant does not demur, yet if the plaintiff does not show a title to revive, he will take nothing by his suit at the hear- ing (0). A demurrer will also in many cases hold to a bill of revivor brought singly for costs (p) ; the court in general not permitting a suit to be revived for that purpose only, except where the costs have been actually taxed before the abatement hap- pened (jj).

If a supplemental bill is brought upon matter aris- ing before the filing of the original bill, where the suit is in that stage of proceeding that the bill may be amended, the defendant may demur (r). If a bill is brought as a supplemental bill upon matter arising subsequent to the time of filing the original bill, against a person who claims no interest arising out of the matters in litigation by the former bill, the defendant to the bill thus brought as a supplemental bill may also demur ; especially if the bill prays that he may answer the matters charged in the former bill. These, however, are grounds of demurrer arising

(n) 3 P. Wms. 348. 2 Meriv. 113. 3 Madcl. 377.

(o) 3 P. Wms. 348. {r) Baldwin v. Mackotun, 3

(p) 2 Eq. Ca. Ab.3. 2 Ves. Atk. 817, 2 Madd. R. 387;

J. 315. 10 Ves. 572. Japp or, if the matter should have

v. Geering, 5 Madd. 375. arisen subsequently, but be

{q) Hall v. Smith, 1 Bro. immaterial, the defendant may

C C. 438. Morgan v. Scuda- also demur. See Milner v.

more, 2 Ves. J. 313. S. C. 3 Lord Hareivood, 17 Ves. 144.

Ves. 195. Lototen v. Mayor Adams v. Doivding, 2 Madd.

and Commonalty of Colchester, R. 53. Ibid 388.

DEMURRERS. 20$

rather from the plaintiff's having mistaken his re- medy, than from his being without remedy.

A cross-bill having nothing in its nature different from an original bill, with respect to which demurrers in general have been considered, except that it is occasioned by a former bill, there seems no cause of demurrer to such a bill which will not equally hold to an original bill. And a demurrer for want of equity will not hold to a cross-bill filed by a defendant in a suit against the plaintiff in the same suit touching the same matter. For being drawn into the court by the plaintiff in the original bill, he may avail himself of the assistance of the court, without being put to show a ground of equity to support its juris- diction^), a cross-bill being generally considered as a defence (t).

A bill filed by the direction of the court for the purpose of obtaining its decree touching some matter not in issue by a former bill, or not in issue between the proper parties, does not seem liable to any pecu- liar cause of demurrer. Indeed, being exhibited by order of the court upon hearing of another cause, there is little probability that such a bill should be liable, in substance to any demurrer.

The constant defence to a bill of review for error apparent upon a decree has been said to be by plea of the decree, and demurrer against opening the en- rolment. (»). There seems, however, no necessity for

(s) Doble v. Potman, Har- 392. Smith v. Turner, 1 Vcm.

dres, 160. 1 Eden. It. 190. 273. 2 Atk. 534. See also

(t) 3 Atkyns, 812. 3 Atkyns, 627. O'Brien v.

(u) Dancer v. Eveti, 1 Vern. O'Connor, 2 Ball & B. 14C.

204 DRMURRERS.

pleading the decree, if fairly stated in the bill : the books of practice contain the forms of a demurrer only to such a bill, and there are cases accord- ingly (.r).

On argument of a demurrer to a bill of review where several errors in the decree have been assigned, if the plaintiff should prevail only in one, the de- murrer must be over-ruled, as one error will be suffi- cient to open the enrolment ; and on argument of a demurrer to a bill of review for error apparent in the decree, the court has ordered the defendant to answer, saving the benefit of the demurrer to the hearing, and on the hearing has finally allowed the

demurrer (?/).

Where the decree has been pronounced above twenty years, the length of time is good cause of demurrer (z).

Where any matter beyond the decree is to be of- fered against opening the enrolment, that matter must be pleaded (a) ; and it has been said that length

(x) Slingsby v. Hale, 1 Ca. the demurrer was allowed, and

in Cha. 122. l P. Wms. 139; the order affirmed by the Lords ;

and see Jones v. Kenrick, 5 Bro. and see Denny v. Filmore,

P. C. 244, and ib. 248; in 1 Vern. 135. S. C. 2 Freeman,

which case the defendant ap- 172.

pears to have pleaded the de- (y) Denny v. Filmer, 2 Free-

cree enrolled in bar of the first man, 172. bill which did not state the de- (z) Edwards v. Carroll, 2 Bro.

cree, but to have demurred P. C. 98, TomL ed. ; and see

alone to the bill of review. Smythe v. Clay, 4 Bro. C. C.

And in Helbut and Philpot, in 539, n. S. C. 1 Bro. P. C. 453,

the house of Lords, 11 March Toml. Ed. S. C. Ambl. 645. 1725, the defendant demurred (a) See Hartwell v. Toxim-

alonc to a bill of review, and send, 2 Bro. P. C. 107. Toml. Ed.

DEMURRERS. 205

of time must be pleaded to a bill of review, and that otherwise the plaintiff will not have the benefit of exceptions, as infancy, coverture, or the like (a). A bill of review upon the discovery of new matter, and a supplemental bill of the same nature, being exhibited only by leave of the court, the ground of the bill is generally well considered before it is brought ; and therefore in point of substance it can rarely be liable to a demurrer. But if brought upon new matter, and the defendant should think that matter not relevant, probably he might take advantage of it by way of demurrer, although the relevancy, ought to be considered at the time leave is given to bring the bill (Z»). Bills in the nature of bills of review do not appear subject to any peculiar cause of demurrer, unless the decree sought to be reversed does not affect the in- terest of the person filing the bill. If upon argument of a demurrer to a bill of review the demurrer is

(a) Gregor v. Molesivorth, mitted by the answer. If length 2 Vez. 109. See, however, of time must be pleaded, yet Sherrington v. Smith, 2 Bro. the plaintiff can have no benefit P. C. 62, Toml. ed. Gorman of exception not stated in the v. M ' Cullock, 5Bro. P. C. 597, bill, unless it should be required Toml. ed. See 3 P. Wms.287, that the plea should be sup- note B, and post. p. 212, as to ported by averments negativing a demurrer on the ground of every possible exception, to length of time ; and it should which there seem to be great seem that if the plaintiff can objections, allege any exception to a posi- (b) 2 Atkyns, 40. See what tive rule, he ought to do so by is stated in regard to a mere his bill. In Lytton v. Lytton, supplemental bill, 17 Ves. 148, 4 Bro. C. C. 441, the exception 149. 2 Madd. R. 61 . And see was stated in the bill, and ad- above 202, note (r).

206 DEMURRERS.

allowed, the order allowing it, being enrolled, is an effectual bar to another bill of review (c).

If upon the face of a bill to carry a decree into execution the plaintiff appears to have no right to the benefit of the decree, the defendant may demur.

Bills in the nature of bills of revivor and supple- ment are liable to objections of the same sort as may be made to the kinds of bills of whose nature they partake.

In addition to the several particular causes of de- murrer applicable to particular kinds of bills, it may be observed that any irregularity in the frame of a bill of any sort may be taken advantage of by de- murrer. Thus if a bill is brought contrary to the usual course of the court, a demurrer will hold (d). As where after a decree directing encumbrances to be paid according to priority, the plaintiff, a cre- ditor, obtained an assignment of an old mortgage, and filed a bill to have the advantage it would give him by way of priority over the demands of some of the defendants (e). This was a bill to vary a decree, and yet was neither a bill of review, nor a bill in nature of a bill of review, which are the only kinds of bills which can be brought to affect or alter a de-

(c) See Denny v. Filmer, 2 Bunb. 56. Earl of Darling- Ca.inCha. 133. S. C. 1 Vern. ton v. Pulteney, 3 Ves. 386, 135, and ib. 417. Pitt v. Earl Fletcher v. Tollett, 5 Ves. 3. qfArglass, ib. 441. Woots v. Ogilvie v. Heme, 13 Ves. 563. Tucker, 2 Vern. 120. Made v. Duke of Beaufort,

(d) See Worthy v. Birkhead, 1 Russ. R. 349.

3 Atk. 809. S. C. 2 Ves. 571. (e) 3 Atk. 811.

Lady Granville v. Ramsden,

DEMURRERS. 207

cree (/), unless the decree has been obtained by fraud ( g). So if a supplemental bill is brought against a person not a party to the original bill, praying that he may answer the original bill, and no reason is suggested why he could not be made a party to the original bill by amendment, he may de- mur (//). If an irregularity arises in any alteration of a bill by way of amendment, it may also be taken advantage of by demurrer. As if a plaintiff amends his bill, and states a matter arisen subsequent to the filing of the bill (i), which consequently ought to be the subject of a supplemental bill, or bill of revivor. But if a matter arisen subsequent to the filing of the bill, and properly the subject of a supplemental bill, is stated by amendment, and the defendant answers the amended bill, it is too late to object to the irregularity at the hear- ing (k). For as the practice of introducing by sup- plemental bill matter arisen subsequent to the insti- tution of a suit has been established merely to pre- serve order in the pleadings, the reason on which it is founded ceases when all the proceedings to obtain the judgment of the court have been had without any inconvenience arising from the irregu- larity (/).

(/) Argd0 3 Atk. 811. Read (h) Baldwin v. Mackotvn, 3

v. Hambey, 1 Ca. in Cha. 44. Atk. 817.

S. C. 2 Freem. 179. 13 Ves. (/) 1 Atkyns, 291. Pilki/ig-

564. ton v. Wignall, 2 Madd. 240.

(g) Argdo 3 Atk. 811. (k) Belchier against Pearson,

Galley v. Baker, Ca. t. Talb. at the Rolls, 13 July 1782.

199. Manaton v. Molesxuorth, (I) See above, p. 202. 1 Eden. R. 25. 13 Ves. 564.

208 DEMURRERS.

Having thus considered the several grounds of de- murrer, it may be proper to observe some particulars with respect to the frame of demurrers, the manner in which they are offered to the court, and the manner in which their validity may be determined, or their consequences avoided.

A demurrer must be signed by counsel (7) ; but is put in without oath, as it asserts no fact, and relies merely upon matter apparent upon the face of the bill (m). It is therefore considered, that the defendant may, by advice of counsel, upon the sight of the bill only, be enabled to demur thereto (n) ; and for this reason it is always made the special condition of an order giving the defendant time to demur plead or answer to the plaintiff's bill, that he shall not demur alone. Whenever, therefore, the defend- ant has obtained an order for time, and is afterwards advised to demur, he must also plead to or answer some part of the bill (o). It has been held, that

(I) See Ord. in Cha. 172. would be considered within the

Ed. Bea. meaning of this term, see

(m) 2 Vez. 247. 1 Madd. Roberts v. Hartley, 1 Bro. C. C.

R. 236. 56. De Minkuitz v. Udney,

(n) Ord. in Cha. 172. Ed. 16 Ves, 355. Barber v. Craw-

Bea. shato, 6 Madd. 284, unless, per-

(0) If the defendant should haps, it were of a description not

apply for time to answer gene- required to be put in upon oath,

rally, it would be presumed see Phillips v. Gibbons, 1 Ves.

that his case does not require & B. 184; and see Anon, 2

the usual indulgence to the ex- P. Wms. 464 ; 3 P. Wms. 8 1 ;

tent mentioned in the text ; and but the defendant would not be

the order would be drawn up allowed to demur alone, Ken-

accordingly, see 10 Ves. 448. rick v. Clayton, 2 Bro. C.C. 214.

1 Ves. & B. 186, and, he S. C. Dick, 685; or even to

would be bound to answer, answer and demur, Taylor v.

10 Ves. 446; but a plea Milner, 10 Ves. 444. Mann

DEMtJRRERSi 200

answering to some fact immaterial to the cause, and denying combination (0), do not amount to a com- pliance with the terms of such an order ; and there- fore, upon motion, a demurrer accompanied by such an answer has been discharged (p). This rule has been probably established under a notion that time is not necessary to determine whether a defendant may demur to a bill or not, and a supposition that a demurrer may be filed merely for delay. But whe- ther a bill may be demurred to is sometimes a sub- ject of serious and anxious consideration ; and the preparation of a demurrer may require great atten- tion, as if it extends in any point too far it must be over-ruled. Great inconvenience therefore may arise from a strict adherence to this rule. For it often happens that a defendant cannot answer any material part of the bill without over-ruling his demurrer ; it being held that if a defendant answers to any part of a bill to which he has demurred he waves the benefit of the demurrer (q) ; or if he pleads to any part of

v. King, 18 Ves. 297, except ested, must be specific. S7n/th

under peculiar circumstances, v. Snow, 3 Madd. 10.

and upon leave granted by (p) Stephenton v. Gardiner,

the Court, on a special ap- 2 P. Wms. 286. 4 Vin. Abr.442.

plication for that purpose, see Lee v. Pascoe, 1 Bro. C. C. 78 ;

Bruce v. Allen, 1 Madd. R. and see Kennel: v. Clayton,

556. Sherivood v. Clark, 9 Pri. 2 Bro. C. C. 214. S. C. Dick.

Ex. R. 259. O85. Lansdoxvn v. Elderton, 8

(o) As to the necessity of Ves. 526. Tomkinv.Lethbridge>

denying a general charge of 9 Ves. 178. 1 o Ves. 44G, 447,

combination, see ab. p. 40. The 448. 2 Ves. & 13. 123.

charge of combination, in order (q) See Hester v. Weston,

to be material, with the view of 1 Ves. 463. Jones v. Earl of

preventing a demurrer for want Strafford, 3 P. Wms. 79. Aura-

of equity by parties not inter, ham v. Dodgson, 2 Atk. 157.

P

210 DEMURRERS.

a bill before demurred to the plea will over-rule the demurrer (r). For the plaintiff may reply to a plea or answer, and thereupon examine witnesses, and hear the cause ; but the proper conclusion of a demurrer is to demand the judgment of the court whether the defendant ought to answer to so much of the bill as the demurrer extends to, or not (s). The condition, that the defendant shall not demur alone, ought therefore, perhaps, to be considered li- berally ; and it has been formerly said, that the court will not incline to discharge a demurrer if the de- fendant denies combination only where he cannot answer further without over-ruling his demurrer (f). Indeed any material answer must in many cases over- rule the demurrer ; so that giving a defendant time to demur, plead, or answer, not demurring alone, is often in effect giving leave to do a thing, but clogging the per- mission with a condition which makes it nugatory : and though the rule was first adopted upon a reasonable ground to prevent unnecessary delay, it may, if strictly observed, contradict the maxim, that a court of equity ought not for form sake to do a great in- justice^). However the modern practice is according to the original strictness of the rule (a?) ; and it may be be better, where the case requires it, to relax the rule

(r) Dormer v. Fortescue, 2 in Ch. 9 Nov. 1 738. Sir John

Atk. 282. Dyneley Goodere against Dean

(s) 3 P. Wras. 80. and Chapter of Worcester, in

(t) See Done v. Peacock, Exchequer, 1777. Zee against

3 Atk. 726. See above, Pascoe,'m Chancery, East. 1780.

p. 181, note (b). 1 Bro. Ch. Ca. 77. 8 Ves. 527.

(w) 1 Vez. 247. 10 Ves. 447. See above, pp. 208

(x) Attorney Gen. v. Jenner, & 209, and notes (o), (p), & {q)>

DEMURRERS. 211

upon special application to the court (d1) than to permit it to be evaded (y). Indeed in some cases an answer to any part of the bill may over-rule the de- murrer ; for if the ground of demurrer applies to the whole bill, the answering to any partis inconsistent (z) ; and therefore when the ground of demurrer was the general impropriety of the bill, and that the defendant ought not therefore to be compelled to answer it, his answer to an immaterial part, in compliance with the order for time which he had obtained, over-ruled his demurrer (a).

As a demurrer relies merely upon matter apparent, on the face of the bill, so much of the bill as the demurrer extends to is taken for true (b) ; thus if a demurrer is to the whole bill the whole (c) is taken for true ; if it is to any particular discovery, the matter sought to be discovered, and to which the demurrer extends, is taken to be as stated in the bill ; and if the defendant demurs to relief only, the whole case made by the bill to ground the relief prayed is con-

(x) And this, upon a special (b) 2 Ves. & Bea. 95. 1

ground, the Court will do. Sec Madd. R. 565.

above p. 209, note (n). (c) That is, every thing ne-

(y) It seems that very little cessary to support the plaintiff's

by way of answer will satisfy case which is well charged in the

the terms of the order; but bill. 1 Ves. 426,427. lVes.jun.

that the Court considers the 289. Facts on a demurrer are

practice in this respect to be taken to be true ; that is, facts

guarded by the honour of which are well and materially

Counsel. See Tomkin v. Leth- alleged. Lord Hardwicke in

bridge, 9 Ves. 178. 11 Ves. 73. Butler v. Royal Exchange As-

(z) Tiddv. Clare, Dick. 712. surance,'m Chan. 22 Nov. 1749.

(a) Ruspini v. Vkkery, in 1 Ves. jun. 78. 289. 3 Meriv.

Chan. 16 Jan. 1793. 503. 1 Madd. 565.

P 2

212 DEMURRERS.

sidered as true . A demurrer is therefore always pre- ceded by a protestation against the truth of the matters contained in the bill ; a practice borrowed from the common law, and probably intended to avoid conclu- sion in another suit.

The admission by a demurrer of the truth of the facts stated in the bill has been considered as one reason why a defence founded on length of time, though apparent on the face of the bill, without any circumstance stated to avoid its effect, cannot gene- rally be made by demurrer (c). Upon a demurrer to a bill brought to impeach transactions which had passed twenty-eight years before the bill was filed, on the ground of fraud, without any sufficient cause shown for not instituting the suit sooner, it was said by the court that the party who demurs admits every thing well pleaded, in manner and form as pleaded ; and a demurrer ought therefore in a court of law to bring before the court a question of law merely ; and in a court of equity, a question of law or equity merely. The demurrer therefore must be taken to admit the whole case of fraud made by the bill ; and the argument to support it must be, not that a positive limitation of time has barred the suit,

(c) But, if the plaintiff's for redemption of a mortgage,

case be so stated in the bill as after quiet possession by the

to show that his claim is barred mortgagee of more than twenty

by lapse of time, and no ground years, (see Aggas v. Pickerell,

of exception, as infancy, or the 3 Atk. 225; and see 2 Ves. jun.

like, be alleged therein, it seems 84,) the defendant may demur,

that, contrary to the opinion of Bcchford v. Close, cited 3 Bro.

Lord Hardwicke, expressed in C. C. 644, 4 Ves. 476, ib. 479.

a case in which the suit was Foster v. Hodgson, 19 Ves. 180.

DEMURRERS. 213

for that would be a pure question of law, but that from long acquiescence it should be presumed that the fraud charged did not exist, or that it should be intended that the plaintiff had confirmed the trans- action, or had released or submitted upon such con- sideration as to bar himself from the general equity stated in the bill. This must be an inference of fact, and not an inference of law ; and the demurrer must be over-ruled, because the defendant has no right to avail himself by demurrer of an inference of fact, upon matter on which a jury in a court of law would collect matter of fact to decide their verdict, if submitted to them, or a court would proceed in the same manner in equity. What limitation of time will bar a suit where there is no positive limita- tion, or under what circumstances the lapse of time ought to have that effect, must depend on the facts of the particular case, and the conclusion must be an inference of fact, and not an inference of law(Y/), and therefore cannot be made on a demurrer (e).

A demurrer must express the several causes (f) of demurrer ( g) ; and in case the demurrer does not

(d) See Cuthbert v. Creasy, length of time was allowed by 6 Madd. 189. the council, present Kenyon,

(e) Ld. Deloraine v. Broivne, M. R. after consideration. — in Chan. 13 & 14 June, 1792. (f) See 3 Madd. 8. 1 Jac. R. 3 Bro. C. C. 633. But see 467 ; and see Harrison v. Hogg, p. 204, as to demurrers to bills 2 Ves. jun. 323.

of review. In Tobi?i v. Beck- (o-) Peachic v. Tivycrossc,

ford, on appeal from Jamaica, Gary Rep. 113. Ord. in Cha.

26 July 1784, a demurrer to a Ed. Bea. 77. 173. bill to redeem on account of

* 3

214 DEMURRERS.

go to the whole bill, it must clearly express the particular parts of the bill demurred to (/*). If 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, it was generally considered that the demurrer being entire must be over-ruled (i). But there are in- stances (k) of allowing a demurrer in part (/) ; and a defendant may put in separate demurrers to sepa- rate and distinct parts of a bill for separate and dis- tinct causes (in). For the same ground of demurrer frequently will not apply to different parts of a bill, though the whole may be liable to demurrer ; and

(h) Chetxvynd v. Lindon, 2 has been resorted to by several

Ves. 451. Devonsher v. New- defendants jointly, it may be

enham, 2 Sch. & Left. 199. good as to some of them, and

And this must be done, not by bad as to the others, see 8 Ves.

way of exception, as by de- 403, 404.

murring to all except certain (k) Rolf v. Lord Somerville,

parts of the bill, but by positive 2 Eq. Ca. Ab. 759. Radcliffe

definition of the parts to which v. Fursman, 2 Bro. P. C. 514,

he thereby seeks to avoid Toml. Ed. answering. See Robinson v. {I) Although this is not now

Thompson, 2 Ves. & Bea. 118. the practice, the Court will in

Weatherhead v. Blackburn, some instances, on the argu-

2 Ves. & Bea. 121. Sed vid. ment of a demurrer, grant

Hicks v. Rai?icock, 1 CoxR. 40. leave, upon over-ruling it, to

(i) 1 Ves. 248. Earl of the defendant to put in another

Suffolk v. Green, 1 Atk. 450. less extended (Thorpe v. Ma-

Todd v. Gee, 17 Ves. 273. cauley, 5 Madd. 218), and will,

1 Swanst. 304. l Jac. R. 467. even after it has been over-

But though a demurrer cannot ruled, sometimes be induced

be good in part and bad in to grant a similar indulgence,

part (8 Ves. 403 ; 1 1 Ves. 70 ; Baker v. Mellish, 1 1 Ves. 68. 17 Ves. 280), it appears that (m) 3 P. Wms. 149. Rober-

where such a mode of defence dean v. Rous, 1 Atk. 544.

DEMURRERS. 21$

in this case one demurrer may be over-ruled upon argument, and another allowed (V).

If the plaintiff conceives that there is not sufficient cause apparent on his bill to support a demurrer put in to it, or that the demurrer is too extensive, or otherwise improper, he may take the judgment of the court upon it ; and if he conceives that by amending his bill he can remove the ground of demurrer, he may do so before the demurrer is argued, on pay- ment of costs, which vary according to the state of the proceedings (0). But after a demurrer to the whole of a bill has been argued and allowed, the bill is out of court, and therefore cannot be regu- larly amended (p). To avoid this consequence the court has sometimes, instead of deciding upon the demurrer, given the plaintiff liberty to amend his bill, paying the costs incurred by the defendant; and this has been frequently done in the case of a de- murrer for want of parties (0/). Where a demurrer leaves any part of a bill untouched, the whole may be amended notwithstanding the allowance of the

(») North v. Earl and Coun- allowing a demurrer, will some-

tess of Strafford. 3 P. Wms. times give the plaintiff leave

148. to amend, see Mayor, Sfc. of

(0) Anon.Mosely, 301. 1 Ves. London v. Levy, 8 Ves. 398 ;

jun. 448. Anon. 9 Ves. 221. Edwards v. Edwards, 6 Madd.

1 Aim. Cur. Cane. 565. 1 Har- 255 ; and it seems probable

rison Chan. Pract. 39. that, even after allowance, the

(p)See above,p. 14, note(tf). Court might be induced, under

Lord Coningsby v. Sir Jos. some circumstances, to set the

Jekyll, 2 P. W. 300, and note, cause on foot again, and to au-

and Watkins v. Bush, Diek, 701. thorize an amendment of the

{q) And the Court, upon bill. See 11 Ves. 72.

P 4

2 10 DEMURRERS.

demurrer ; for the suit in that case continues in court, the want of which circumstance seems to be the reason of the contrary practice where a demurrer to the whole of a bill has been allowed. A demurrer being frequently on matter of form is not in general a bar to a new bill ; but if the court upon a demurrer has clearly decided upon the merits of the question between the parties, the decision may be pleaded in bar of another suit(r).

A demurrer being always upon matter apparent upon the face of the bill, and not upon any matter alleged by the defendant, it sometimes happens that a bill, which, if all the parts of the case were disclosed, would be open to a demurrer, is so art- fully drawn as to avoid showing upon the face of it any cause of demurrer. In this case the defendant is compelled to resort to a plea, by which he may allege matter which if it appeared on the face of the bill would be good cause of demurrer. For in many cases what is a good defence by way of plea is also good as a demurrer, if the facts appear suffi- ciently by the bill (s). And if a demurrer should be over-ruled on argument because the facts do not sufficiently appear on the face of the bill, defence may be made by plea, stating the facts necessary to bring the case truly before the court, though it has been said that the court would not permit two dilatories (f). And

(r) See the cases upon de- (t) Hudson v. Hudson, in murrers to bills of review cited Chan. 23 April, 1734. Re- above, p. 205, note (a), ported, 1 Sim. & Stu. 512.

(5) See Hetley 139. But see note. Roxvley v. Eccles, 1 Sim.

3 Atk. 226. & Stu. 511.

DEMURRERS. 217

after a plea over-ruled, it is said that a demurrer was allowed, bringing before the court the same question in substance as was agitated in arguing the plea (w). But after a demurrer has been over-ruled a second de- murrer will not be allowed Qv) ; 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 goodwill support the demurrer(?/).

(u) E. India Company v. Campbel. l Vez. 246. But it may be doubted whether this case has not been mistaken by the reporter, and whether the question was not on exceptions to an answer. See 2 Vez. 491, 492.

(x) See 2 Bro. C. C. 66 ; and see above, p. 214, note (/). Where, however, a demurrer was informal in its frame, but good in substance, it was overruled, with liberty to the defendant to file another. See Devonsher v. Nevoenham, • 2 Sch. & Lefr. 199. And, in consequence of the modern doctrine, that a defendant who submits to answer must in ge- neral answer fully, see below,

Ch. 2, sect. 2, part 3, this Court, in some instances, on over-ruling a demurrer to dis- covery, instead of giving the defendant liberty to insist by answer that he is not bound to make the disclosure required, will give him liberty to file another less extensive. See Thorpe v. Macauley, 5 Madd. 218.

(y) As to demurrers ore terms, see Pyle v. Price, 6 Ves. 779. 8 Ves. 408. Dummer v. Corporation of Chippenham, 14 Ves. 245. 17 Ves. 216. Att. Gen. v. Moses, 2 Madd. R. 294. 1 Swanst. 288. Knye v. Moore, 1 Sim. & Stu. 61. Hook v. Dor- man, 1 Sim. & Stu. 227.

CHAP.

( 218 )

CHAPTER II.

SECTION II.

PART II.

Of Pleas.

IN treating of pleas the same order may be conve niently pursued as has been already used in treating of demurrers. Pleas to original bills will therefore be first considered, and under that head the nature of pleas in general, and the principal grounds of plea to every kind of bill, will necessarily be noticed ; the distinct pleas applicable peculiarly to the several other kinds of bill will be next men- tioned ; and in the third place the frame of pleas in general, and the manner in which their validity may be determined, will be considered. Pleas to original bills will also be considered under the two heads of pleas to relief, and pleas to discovery only, and these will necessarily involve the consideration of pleas to bills of discovery merely.

A demurrer has been mentioned to be the proper mode of defence to a bill when any objection to it is apparent on the bill itself, either from matter contained in it, or from defect in its frame, or in the case made by it. When an objection to a bill is not apparent on the bill itself (z), if the defendant means

(z) See Billing v. Flight, l Madd. R. 230.

PLEAS. 2ig

to take advantage of it, he ought to show to the court the matter which creates the objection, either by answer, or by plea, which has been described as a special answer, showing or relying upon one or more things as a cause why the suit should be either dis- missed, delayed or barred (a). The defence proper for a plea is such as reduces the cause, or some part of it, to a single point (b), and from thence creates a bar to the suit, or to the part to which the plea ap- plies (c). It has been observed, that the end of a plea is to save to the parties the expense of an examination of witnesses at large ; and that there- fore it is not every good defence in equity that is good as a plea : for that where the defence con- sists of a variety of circumstances there is no use of a plea, as the examination must still be at large ; and the effect of allowing a plea would be, that the court would give judgment on the circumstances of the case before they were made out by proof (d).

Pleas have been generally considered as of three sorts ; to the jurisdiction of the court ; to the person of the plaintiff or defendant ; and in bar of the suit. As they have been usually arranged under these heads, it may be convenient to consider them in some degree with reference to that arrangement ; but the order before observed in treating of demurrers may be at the same time pursued ; and pleas may

(a) Prac. Reg. 324. Wy. Ed. (c) 2 Bligh. P. C. C14.

2 Sch. & Left. 725. 1 Madd. (d) Chapman v. Turner, 1

R. 194. Atk. 54. S. C. 1 Harr. Chan.

(b) 1 Atk. 54. i5Ves.82. 377. Prac. 356. 1 13Iigh, P. C. 614.

'220 PLEAS.

be considered with reference to the several grounds already mentioned on which defence may be made to a bill.

The objections to the relief sought by an original bill which can be taken advantage of by way of plea, are nearly the same as those which may be the subject of demurrer; but they are rather more numerous, because a demurrer can extend to such only as may appear on the bill itself, whereas a plea proceeds on other matter. The principal are, I. That the subject of the suit is not within the jurisdiction of a court of equity ; II. That some other court of equity has the proper jurisdiction ; III. That the plaintiff is not entitled to sue by reason of some personal disability ; IV. That the plaintiff is not the person he pretends to be, or does not sustain the character he assumes ; V. That the plaintiff has no interest in the subject, or no right to institute a suit concerning it ; VI. That he has no right to call on the defendant concerning it ; VII. That the defendant is not the person he is .alleged to be, or does not sustain the character he is alleged to bear; VIII. That the defendant has not that interest in the subject which can make him liable to the demands of the plaintiff; and IX. That for some reason, founded on the substance of the case, the plaintiff is not entitled to the relief he prays. Of these the second is the plea generally termed a plea to the jurisdiction of the court ; and the third, the fourth, and the seventh, are treated as pleas to the person of the plaintiff and defendant ;

PLEAS. 22t.

the others are considered as pleas in bar of the suit ; X. The deficiency of a bill to answer the purposes of complete justice may also be shown by plea, which may be considered as in bar of the suit, though per- haps a temporary bar only. XI. The impropriety of unnecessarily multiplying suits may be the sub- ject of plea, which is also in bar of the suit : but the inconvenience which may arise from confounding distinct matters in the same bill, as it must be ap- parent on the bill itself, unless very artfully framed, can in general only be alleged by demurrer.

Those pleas which are commonly termed pleas to. the jurisdiction of the court do not dispute the rights of the plaintiff in the subject of the suit, or that they are fit objects of the cognizance of a court of equity, but simply assert that the court of chancery is not the proper court to take cognizance of those rights. Pleas to the person of the plaintiff also do not dis- pute the validity of the rights which are made the subject of the suit, but object to the plaintiff that he is by law disabled to sue in a court of justice, or cannot institute a suit alone ; or that he is not the person he pretends to be, or does not sustain the character he assumes. Pleas in bar are commonly described as allegations of foreign matter, whereby, supposing the bill so far as it is not contradicted by the plea (e) to be true, yet the suit, or the part of it to which the plea extends, is barred (/*). But this description perhaps does not comprise every kind of

(e) 2 Atk. 51. (/) Prac. Reg. 327. Wy. Ed. 1 Madd. R. 194.

222 PLEAS.

plea, or does not mark the distinctions between the different kinds with sufficient accuracy.

I. The general objects of the jurisdiction of a court of equity, and the manner in which a want of juris- diction may be alleged by demurrer, when a bill does not propose to attain any of those objects, or it is ap- parent on the face of it that none can be attained by it, have been already mentioned. A case which is not really such as will give a court of equity juris- tion cannot easily be so disguised in a bill as to avoid a demurrer ; but there may be instances to the contrary ; and in such cases it should seem a plea of the matter necessary to show that the court has not jurisdiction of the subject, though perhaps una- voidably in some degree a negative plea, would hold (g). Thus, if the jurisdiction was attempted to be founded on the loss of an instrument, where, if the defect arising from this supposed accident had not happened the courts of ordinary jurisdic- tion could completely decide upon the subject, per- haps a plea, showing the existence of the instrument, and that it was in the power of the plaintiff to obtain a production of it, ought to be allowed, though in- stances of this sort of plea may not occur in practice. For it seems highly unreasonable that a plaintiff by alleging a falsehood in his bill should be permitted to involve a defendant in the expense of a suit in equity, though the bill may finally be dismissed at the hearing of the cause, if the defendant answers

(g) See Armitage v. Wadstvorth, l Madd. R. 189.

PLEAS. 223

the case made by it, and enters into his defence at large. No authority, however, occurs to support such a plea (h) ; and as there is little disposition in the courts of equity to countenance those defences which tend to prevent the progress of a suit to a hearing in the ordinary way, whatever the expense of the proceeding may be, it would hardly be pru- dent to endeavour thus to put a stop to an attempt to transfer the jurisdiction of a suit from the ordinary courts to a court of equity ; and indeed the guard put upon cases of this kind, by requiring the affida- vit of the plaintiff of the truth of the matter which he alleges by his bill to support the jurisdiction of the court, is likely to prevent any abuse upon this head.

II. Though the subject of a suit may be within the jurisdiction of a court of equity, yet if the court of chancery is not the proper jurisdiction, the de- fendant may plead the matter which deprives the court of jurisdiction, and show to what court the jurisdiction belongs (i), and upon this ground may demand the judgment of the court whether he shall be compelled to answer the bill (k). Pleas of this nature arise principally where the suit is for land within a county palatine (/), or where the defendant

(k) See 1 Madd. R. 195. Reported, upon view of prece-

(i) Earl of Derby v. Duke dents, that the jurisdiction of

ofAthol,! Vez. 202. Nabob of the counties palatine was al-

the Carnaticv. E. I. Comp. 1 Ves. lowed, between parties dwell -

jun. 371. S.C. 3Bro. C.C. 292. ing within the same, and for

(A) Ch. Prac 417. 420. lands there, and matters local.

3 Atk. 2G4. Nels. Rep. 37. 66. See also

(/) Com. Dig. Chan. Plea I. Willoughby v. Brcarton, Cary's

1 Chan. Prac. 420. Edgtvorlh Rep. 60. Gerrard v. Stanley,

v. Davies, 1 Ca. in Cha. 40. 1 Cha. Rep. 278.

224 PLEAS.

claims the privileges of an university (rn), or other particular jurisdiction (n).

The court of chancery being a superior court of general jurisdiction, nothing shall be intended to be out of its jurisdiction which is not shown to be so (o). It is requisite, therefore, in a plea to the jurisdiction of the court, to allege that the court has not juris- diction of the subject, and to show by what means it is deprived of jurisdiction (p). It is likewise necessary to show what court has jurisdiction (jj). If the plea does not properly set forth these particulars (r) it is bad in point of form (i). In point of substance it is necessary to entitle the particular jurisdiction to ex- clusive cognizance of the suit that it should be able to give complete remedy (7). 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 over-ruled ; for the university court could not give complete relief(w). And if a suit is instituted against different persons, some of

(m) Temple v. Foster, Cary (r) See Moor v. Somerset, Nels.

Rep. 65. Cotton v. Manering, Rep. 51 ; and see 9 Mod. R. 95.

Cary Rep. 73. Draper v. Crow- (s) Foster v. Vassall, 3 Atk.

ther, 2 Vent. 362. Stephens 587. And see Nabob of Arcot

v. Berry, l Vern. 212. v. East Ind. Comp. 3 Bro. C.C.

(n) See Cunningham v. Wegg, 292. S. C. 1 Ves. jun. 371.

2 Bro. C. C. 241. if) Neivdigate v. Johnson,

(0) 1 Vez. 204. 2 Vez. 357. 2 Ca. in Cha. 170. Wilkins v.

(p) See 3 Bro. C. C. 301. Chalcroft, 11 Vin. Abr. 10.

1 Ves. jun. 388. Green v. Rutheiforth, 1 Vez.

(q) Strode v. Little, 1 Vern. 463.

59. Earl of Derby v. Duke of (u) Draper v. Croxvther, 2

Athol, l Vez. 202. S. C. Dick. Ventr. 362. Stephens v. Berry,

129. 1 Vern. 212.

PLEAS. 225

whom have privilege, and some not (a1) ; or if one de- fendant is not amenable to the particular jurisdic- tion (j/) a plea will not hold. If, likewise, there is a particular jurisdiction, and yet the parties to litigate any question are both resident within the jurisdiction of the court of chancery ; as upon a bill concerning a mortgage of the island of Sarke, both mortgagor and mortgagee residing in England, the court of chancery will hold jurisdiction of the cause : for a court of equity agit in 'personam (z). So where the court may not have jurisdiction to give relief it may yet entertain a bill for a discovery in aid of the court which can give relief, if the same discovery cannot be there obtained ; as if the jurisdiction be in the King in council, where the defendant cannot be compelled to answer upon oath (a).

Similar to a plea to the jurisdiction is the case of a plea to an information charging an undue election of a fellow of a college in one of the universities, " that by the statutes the visitor of the college ought " to determine all controversies concerning elections '* of fellows, and that such controversies ought not tl to be determined elsewhere (b)." But the extent of the visitor's authority must be averred, and it must also be averred that he is able to do complete justice (c). And where there is a trust created, the

(x) Lovogher v. Loivgher, 494. l Vez. 204. 3 Ves. 182*

Cary Rep. 55. S. C. 22 Vin. 5 Madd. 307. Abr. 9. Fanshaiv v. Fanshaw, {a) 1 Vez. 205.

1 Vern. 246. (b) Att. Gen. v. Talbot, 3

(y) Grigg's case, Hutton, Atk. 662. S. C. 1 Vez. 78.

59 ; and see 4 Inst. 213. Hil- And see 1 Vez. 472. 474, 475.

ton v. Laivson, Cary R. 48. 2 Vez. 328.

(z) Toiler v. Carteret, 2 Vern. (c) 1 Vez. 474.

226 PLEAS.

visitor having no power to compel performance of the trust, relief must be had in the King's courts of general jurisdiction (d).

III. In respect to the person of the plaintiff it may- be shown that he is disabled to sue, as being, 1 , out- lawed, or 2, excommunicated, or 3, a popish recusant convict, or 4, attainted in a premunire, or of treason or felony, or 5, an alien ; or it may be shown, 6, that the plaintiff is incapable of instituting a suit alone. A plea of this kind is in the nature of a plea in abatement of the suit.

1. A person outlawed is disabled from suing in a court of justice, and if a bill is filed in his name the defendant may plead the outlawry, which whilst it remains in force will delay the proceeding (e). The record of the outlawry, or the capias thereupon, must be pleaded sub peck sigilli, and is usually an- nexed to the plea(y). A plea of outlawry, in a suit for the same duty or thing for which relief is sought

(d) Green v. Rutherforth, 83. And such a plea may be

1 Vez. 462 ; and see 4 Bro. C C. fijed by a defendant who is in

1 67. 2 Ves jun .47. 1 3 Ves. 533- contempt. Waters v. Chambers, Ex parte Berknamsteaa bcnooi, „,. „ '

2 Ves. &B. 134. ! Sim> & StU' 225'

(e) A plea of outlawry may be (/) Tothill, 54 ; Prac. Reg. filed without oath, 1 Ca. in Cha. 327. Wy. Ed. ; Ord. in Cha. 258. Tookv. Took, 2 Vern. 198, Ed. Bea. 27. And in a case Anon. 2 Freem. 143 ; Hovend. in which the formality alluded Ed. but see Parrot v. Bowden, to had been omitted, by mis- ib. 37 ; the main fact appearing take of the clerk of the out- upon record, Ord, in Cha. Ed. lawries, the plea was allowed Bea. 23, 2 Ves. & Bea. 357 ; to be amended, by annexing to and a mere averment of i den- it an office-copy ofthe exigent, or tity being considered sufficient, record of the outlawry. Waters 2 Vern. 199; and see 19 Ves. v. Mayheiv, 1 Sim. & Stu. 220.

PLEAS. 227

by the bill, is insufficient according to the rule of law, and shall be disallowed of course, as put in for delay ( g). Otherwise a plea of outlawry is always a good plea so long- as the outlawry remains in force (Ji) ; but if that shall be reversed, the plaintiff, upon pay- ment of costs, may sue out fresh process against the defendant, and compel him to answer the bill (i). Outlawry in a plaintiff executor or ad- ministrator cannot be pleaded ; for he sues in aider droit (k). It is equally insufficient if alleged in dis- ability of a person named in a bill as the next friend of an infant plaintiff (/), or in an information as a relator (ni).

2. The defendant may plead that the plaintiff is excommunicated (ji), which must be certified by the ordinary, either by letters patent containing a positive affirmation that the plaintiff stands excommunicated, and for what ; or by letters testimonial, reciting, " quod scrutatis register Us invenitur, &c." Either

(g) See Philips v. Gibbons, disability of the person of a

1 Ves. & Bea. 184; Ord. in relator, is said to have been Cha. Ed. Bea. 175. allowed in the duchy-court of

(h) Ord. in Cha. Ed. Bea. 175; Lancaster. But the relator

3Bac.Abr. 761. Outlawry (3). seems to have sustained the

(i) Ord. in Cha. Ed. Bea. character of plaintiff as well

175 ; and see Peyton v. Ayliffe, as of relator. See 3 Bac. Abr.

2 Vern. 312. 7C2. Outlawry (3) ; and see (k) Killigreu) v. Killigrew, also Waller v. Hanger, 2 Bulstr.

1 Vern. 184. Prac. Reg. 326. 134. Palmer 's case, And. 30.

Wy. Ed. (n) And this plea may be put

(/) Prac. Reg. 327. Wy. Ed. in without oath, if the excom-

(m) There is a case, Alt. Gen. munication appear upon record.

v. Heath, Prec. in Cha. 13, Ord. in Cha. Ed. Bea. 26, and

where a plea of outlawry, in 2 Ves. & Bea. 327.

Q 2

-2S PLEAS.

of these certificates must be sub sigiilo, and so pleaded (0). Excommunication is a good plea to an executor or administrator, though they sue in auter droit (p), but not to the next friend of an infant (7/). This, like the plea of outlawry, ceases to be a bar when the disability is removed ; and therefore the plaintiff, purchasing letters of absolution, may, as at law, sue out fresh process, and compel the defendant to answer the bill (r).

3. By statute 3 Ja. I. c. 5. s. 11, every popish recusant convict is in many cases disabled to sue, in the same manner as a person excommunicated. The instances of a plea of conviction of recusancy have probably been rare, as no traces of any occur in the books of reports, nor does the form of the plea appear in the books of practice. If advantage should be attempted to be taken of this statute, the court would probably require the same averments to sup- port the plea as are necessary to a plea of the same nature at law (s). This plea also ceases to be a bar if the plaintiff by conforming removes the disability (t).

4. A plea, that the plaintiff is disabled from suing

(0) Ord. in Cha. Ed. Bea. 27. c. 127, excommunication is dis-

Prac. Reg. 327. Wy. Ed- continued, except in certain

Tothill, 54. cases therein specified.

(p) Co. Litt. 134, a. 2 Bac. (s) 3 Bac. Ab. 780. Papists,

Abr. 319. Excom. (D) (1). See Lord Petre v. Univ.

(a) Prac. Reg. 278. of Cambridge, Lutwyche, 1 100.

(r) Amcrsv. Legg. Choice Ca. (t) See stat. 31 Geo. 3, c. 32,

in Cha. 164. Pract. Reg. 327. § 3; and valuable note to Co.

Wy. Ed. It should here bemen- Litt. p. 391, a. note (2). Hargr.

tioned, that by stat. 53 Geo. 3, & Butl. Ed.

PLEAS. 229

being attainted, is equally rare (u). It. would pro- bably be likewise judged with the same strictness as if it was a plea at Law (.r).

5. There is little more to be found in the hooks upon the subject of a plea that the plaintiff is an alien(w). An alien, who is not an alien enemy, is under no disability of suing for any persona] de- mand (z) ; and an alii n enemy may sue under ome circumstani ■ - (a). A plea has be* n put in to a bill filed by an alien infidel not, of the Chri tian faith, and wras attempted to be supported upon the ground that the plaintiff was upon a cross-bill incapable of being examined upon oath. The plea wax over-ruled without, argument rhj.

6. [f a bill is filed in the name of any person in-

(u) See — v. Dairies, ig\e*. 1 Atk. 51. Aa tor the incapa-

81 ; and iee Ea parfe Bullock, cities of aliens to take and to

i4Ves. 4.72. And case on Irish bold certain property, iee Co.

statute*, Kennedy v. Tidy, 1 Sch. Liu.. ^. b., and note* in Efargr.

& Lf.fr. 355. & Butl. Ld. In such canes, it

(j) 2 Atk. 399. This kind is presumed that a plea of mere

of plea if not to be supported alienage, if properly framed,

by oath, but can be- proved irould be a Htfficient defl

by the record alone, r. See Co. lAtL 129. (b)i ■"■<\

Jkeries, \<j Vet. 81. 2 W.. & liial .. Brawn, 2 Art.. 397.

I: .1. 327. (tf) :j i>"rr. 1741. j I:

(y, /;ur/: v. BrOWl, 2 Atk. Ab. 84. /Mien (D). J>

397. 2Yin.Abr.274. Alien (J). 619. Cornu and Blackburne,

i Bac.Abr.83. Alien D . Frac. and the case of Anthon and

327. Wy. Ed. Bast. Entr. Fisher,ia Doug, note i, p. 626.

/; . Ait. Gen. \ Bro. P. But the la'

C. 421. Torn!. Ed. Mbreteht\ in the E»

• „«/,2\ and quer Chamber, 16th Nor. 1784.

Exparte Lee, 13 Vet. '-4. and Arid see Evans v. Richardson,

Ex forte B • • .'j Mernr. 4'

71. i Ramkissenseat v. /j'//

A''.'/"/ /;• '. "k. 51.

230 PLEAS.

capable alone of instituting a suit, as an infant, a married woman, or an idiot or lunatic, so found by inquisition, the defendant may plead the infancy, the coverture (b), or the inquisition of idiotcy or lu- nacy (c), in abatement of the suit.

IV. A plea, that the plaintiff is not the person he pretends to be, or does not sustain the character he assumes, and therefore is not entitled to sue as such (Y/), though a negative plea, is good in abate- ment of the suit ; as where a plaintiff entitled himself as administrator, and the defendant pleaded that he was not administrator (e). And where a plaintiff entitled himself as administrator of an intestate, and the defendant pleaded that the supposed intestate was living (/"), the plea was allowed. It has been made a question how far a negative plea can be good (g). To a bill by a person claiming as heir to a person dead, the defendant pleaded that another person was heir, and that the plaintiff was not heir to the deceased, and the plea was over-ruled (^), but this decision was afterwards doubted by the learned Judge himself (i), when pressed by the ne-

(b) Prac. Reg. 326. Wy. Ed. pleas referred to in the next

(c) See case of the plaintiff page.

being in a state of mere mental (h) Neivynanv. Wallis, 2 Bro.

incapacity, Wartnaby v. Wart- C. C. 142 ; and see Gunn v.

naby, 1 Jac. R. 377. Prior, Dick. 657. S.C. l Cox.

(d) Prac. Reg. 326. Wy. Ed. R. 197. Forrest. Ex. R. 88. n.

(e) Winn v. Fletcher, 1 Vern. Kinnersley v. Simpson, Forrest. 473; but see Fell v. Lutvoidge, 85. See also Earl 'of Strathmore 2 Atk. 120. 3 Barnard. 320. v. Countess of Strathmore, 2 Jac.

{f) Ord against Huddleston, & W. 541.

Dick. 510. S.C. cited, 1 Cox (2)3Bro.C.C.489. iMadd.R.

R. 198. 194. And it seems to have been

{g) But that question has established, that in such a case,

been set at rest. nVes. 302, apleathatthe plaintiff is not heir,

305. See instances of negative without showing who is heir,

PLEAS. 231

cessary consequence, that any person falsely alleging a title in himself might compel any other person to make any discovery which that title, if true, would enable him to require, however injurious to the per- son thus improperly brought into court ; so that any person might, by alleging a title, however false, sustain a bill in equity against any person for any thing so far as to compel an answer ; and thus the title to every estate, the transactions of every com- mercial house, and even the private transactions of every family, might be exposed ; and this might be done in the name of a pauper, at the instigation of others, and for the worst purposes (k). To avoid this inconvenience, a defendant has in some cases been permitted to negative the plaintiff's title by answer, and thus to protect himself against the re- quired discovery ; but in other cases this has not been allowed, and the subject seems still to require further consideration (/).

V. Interest in the subject of the suit, or a right to

would be good, for that the several Judges. In the case

defendant might not be able to oiGeihin v. Gale, cited in Ambl.

prove. 16 Ves. 264, 265. 354, the Master of the Rolls,

(k) As further examples of ne- sitting for the Chancellor, 29

gative pleas, see Dretv v. Drew, Oct. 1 739, said, it was one thing

2 Ves. & Bea. 159, Sanders to deny a title in the plaintiff,

v. King, 6 Madd. 61, and Yorke and another to show a title in

v. Fry, ibid. 65, that plaintiff one's self; and that the former

is not a partner ; and Thring had never been allowed as a

v. Edgar, 2 Sim. & Stu. 274, good plea — Mr. Capper's note.

and particularly at p. 280, that See the authorities cited in the

he is not a creditor. last note, and in the notes to the

(£)SeenVes.283,296,&303, next page and below, Chap. 2.

and the several cases there cited, sect. 2. part 3. with the discordant opinions of

Q 4

23'2 PLEAS.

the thing demanded, and proper title to institute a suit concerning it, have been mentioned as essentially necessary to sustain a bill ; and it has been observed, that if they are not fully shown by the bill itself the defendant may demur. But a title apparently good may be stated in a bill, and yet the plaintiff may not really have the title he states, either because he misrepresents himself, which has been considered under the last head, or because he suppresses some circumstances respecting his title, which if disclosed would show either that nothing was ever vested in him, or that the title which he had has been trans- ferred to another ; and this the defendant may show by plea in bar of the suit. As if a plaintiff claims as a purchaser of a real estate, and the defendant pleads that he was a papist, and incapable of taking by pur- chase (w) ; or a plaintiff claims property under a title accrued previous to conviction of himself, or of a person under whom he claims, of some offence which occasioned a forfeiture («), or previous to a bank- ruptcy^), or any other defect in the title (p) of the

(m) See however, 1 8 Geo. 3, stance of a plea that the plain-

c. 60, s. 2, and the 43 Geo. 3. tiff had taken the benefit of an

c. 30. by which this incapacity Act for the relief of insolvent

is conditionally removed. debtors, De Minckvoitz v. Udney,

(n) 2 Atk. 399. v. Da- 16 Ves. 466.

vies, 1 9 Ves. 8 1 . (p) Quilter v. Mussendine,

(0) Cdrleton v. Leighton, Gilb. Ca. in Eq. 228. Hitchins 3 Meriv. 667. See Loivndes v. v. Lander, Coop. R. 34. Gait Taylor, 1 Madd. R. 423 ; S. C. v. Osbaldeston, 1 Russ. R. 158, 2 RoseR.3G5.432. Itseemsa in which the decision in S. C. pleaof the plaintiff's bankruptcy reported 5 Madd. 428, was over- must be upon oath, Joseph v. ruled ; and see Ocklestone v. Tuckcy, 2 Cox R. 44. See in- Benson, 2 Sim. & Stu. 26*5.

PLEAS. 233

plaintiff to the matter claimed by the bill. A plea of conviction of any offence which occasions forfeiture, as manslaughter, must be pleaded with equal strict- ness as a plea of the same nature at common law(y). But if a plea ' goes to show that no title was ever vested in the plaintiff, though for that purpose it states an offence committed, conviction of the offence is not essential to the plea, and the same strictness is not required as in a case of forfeiture. Thus, in the Exchequer, to a bill seeking a discovery of the owners of a ship captured, and payment of ransom, the defendants pleaded that the captor was a natural- born subject, and the capture an act of piracy. Though the barons at first thought that the plea could not be supported unless the plaintiff had been convicted of piracy, and the record of the conviction had been annexed to the plea, they were finally of opinion that as the plea showed that the capture was not legal, and that therefore no title had ever been in the plaintiff, the plea was good, and they allowed it accordingly (r). Pleas of want of title generally extend to discovery as well as to relief (s).

It cannot often be necessary to make defence on this ground by way of plea ; for if facts are not stated in the bill from which the court will infer a title in the plaintiff, though the bill does contain an assertion that the plaintiff has a title, the defendant may demur ; the averment of title in the bill being not of a fact, but of the consequence of facts. Thus, where

(q) 2 Atk. 399.

(r) Fall against , 1st May 1782.

(5) Gilb. 229.

234 PLEAS.

a plaintiff stated an encumbrance on a real estate, of which he was devisee, and averred that it was the debt of the testator, and prayed that it might be paid out of the testator's personal estate in ease of the real estate devised, the defendant having pleaded that the testator had done no act by which he made it his own debt, the plea was over-ruled, because, whether it was his debt or not was matter of in- ference from the facts stated in the bill, and therefore the proper defence was by demurrer (t). Accord- ingly the defendant afterwards demurred, and the de- murrer was allowed (V).

VI. In treating of demurrers notice has been taken that though a plaintiff has an interest in the subject of a suit, and a right to institute a suit concerning it, yet he may have no right to call upon the de- fendant to answer his demands ; and it has been observed, that this happens where there is a want of privity of title between the plaintiff and defendant (V). It would probably be difficult to frame a bill which was really liable to objection on this head so artfully as to avoid a demurrer. But if such a bill could be framed it should seem that defence might be made by plea.

VII. A plea that the defendant is not the person he is alleged to be, or does not sustain the character which he is alleged to bear, is mentioned as a plea which may be supported (.v). It seems to have been

(t) Ttveddell v. Tweddell, (u) Same cause, 18th July

25th May 1784, in Chan- 1786. eery. (x) See above p. 158.

PLEAS. 2$5

considered as more convenient for a defendant under these circumstances to put in an answer alleging the mistake in the bill, and praying the judgment of the court whether he should be compelled further to an- swer the bill (?/), but this in fact amounts to a plea, though it may not bear the title ; and a plea has been considered as the proper defence (#},

VIII. If a defendant has not that interest in the subject of a suit which can make him liable to the demands of the plaintiff, and the bill alleging that he has or claims an interest avoids a demurrer, he may plead the matter necessary to show that he has no interest («), if the case is not such that by a general disclaimer he can satisfy the suit (/;). Thus, where a witness to a will was made a defendant to a bill brought by the heir at law to discover the circumstances attending the execution, and the bill contained a charge of pretence of interest by the defendant, though a demurrer for want of interest was over-ruled because it admitted the truth of the charge to the contrary in the bill, yet the court de- clared an opinion that a defence might have been made by plea (c).

(x) Prac. Reg. 326. Wy. Ed. (&) See the case of Turner

And see Griffith v. Batemau, v> R0iinson, j Sim. & Stu.

Finch R. 334. 3.

(y) Cary Rep. 61. Prac. Reg. (c) Plummer v. Mai/, 1 Vez.

327. Wy. Ed. Att. Gen. v. Lord 426. This must have been a ne-

Hoiham, 1 Turn. R. 209. See gativeplea. AndseeCarhvright

below, Chap. 2. sect. 2. part 3. v. Hately, 3 Bro. C. C. 238;

(z) 1 Ves. jun. 292, and see S.C. lVes. jun.292; 7Ves.289,

ibid. p. 294, note. 290; 1 Ves.&Bea.550. Turner

(o) Plummer v. May, I Vez. v. Robinson, 1 Sim. & Stu. 3. 426.

336 PLEAS.

IX. Though the subject of a suit may be within the jurisdiction of a court of equity, and the court of Chancery may have the proper jurisdiction ; though the plaintiff may be under no personal disability, and may be the person he pretends to be, and have a claim of interest in the subject, and a right to call on the defendant concerning it, and the defendant may be the person he is stated to be, and may claim an interest in the subject which may make him liable to the plaintiff's demands, with respect to which circumstances pleas have been already considered, still the plaintiff, by reason of some additional cir- cumstance, may not be entitled in the whole or in part to the relief or assistance which he prays by his bill. The objections which may be made to the whole or any part of a suit, though liable to none of the objections before considered, are principally the subject of those kinds of pleas which are com- monly termed pleas in bar ; and which are usually ranked under the heads of pleas of matter recorded, or as of record, in the court itself, or some other court of equity ; pleas of matters of record, or mat- ters in the nature of matters of record, in some court not a court of equity ; and pleas of matters in pais.

Pleas in bar of matters recorded, or as of record, in the court itself, or some other court of equity, may be, 1, A decree or order of the court by which the rights of the parties have been determined (d), or another bill for the same cause dismissed (e) ; 2. Another suit depending in the court, or in some

(d)3 Atk.626. (e) Pritmanv.Pritman, 1 Vern. 310. 1 Atk.571.

PLEAS. 2J7

other court of equity, between the same parties for the same cause (/). Pleas of this nature generally go both to the discovery sought and the relief prayed by the bill.

1 . A decree, determining the rights of the parties, and signed and enrolled, may be pleaded to a new bill for the same matter (g), and this even if the party bringing the new bill was an infant at the time of the former decree (h) : for a decree enrolled can only be altered upon a bill of review (J). But the decree must be in its nature final, or afterwards made so by order, or it will not be a bar (A:). Therefore a decree for an account of principal and interest due on a mortgage, and for a foreclosure in case of non-pay- ment, cannot be pleaded to a bill to redeem unless there is a final order of foreclosure (/) ; nor can a decree which has been made upon default of the de- fendant in not appearing at the hearing be pleaded without an order making the decree absolute ; the terms of such a decree being always that it shall be binding on the defendant, unless on being served with a writ of subpoena for the purpose he shall show cause to the contrary (m). Upon a plea of this nature so much of the former bill and answer must be set

{f) Foster v. Vassall, 3 Atk. (k) See next page, notes (0)

587. &(p).

(s) Rutland v. Brett, Finch ... .

t» 71*- 77 7 si u \l) henhouse v. Earl, 2 Vez.

R. 124. Matlock v. Galton.

7 450.

Dick. 65.

(h) 1 Atk. 631. Gregory v. (m) Ord. in Clia. 198. Ed.

Moleswortfi, 3 Atk. 626. 3 Ves. Bea. And see Halseyv. Smith,

317. Mos. 186. Venemore v. Vene-

(j) 3 Atk. 627. See above, more, Dick. 93. p. 83, et seq.

238 PLEAS.

forth as is necessary to show that the same point was then in issue (k). A decree or order dismissing a former bill for the same matter may be pleaded in bar to a new bill (7) if the dismission was upon hearing, and was not in terms directed to be without prejudice (m). But an order of dismission is a bar only where the court determined that the plaintiff had no title to the relief sought by his bill ; and there- fore an order dismissing a bill for want of prosecution is not a bar to another bill (w). And a decree cannot be pleaded in bar of a new bill unless it is conclu- sive (0) of the rights of the plaintiffs in that bill, or of those under whom they claim (p). Therefore a decree against a mortgagor, and order of foreclosure enrolled, were not deemed a bar to a bill by inter- vening encumbrancers to redeem, although the mort- gagee had no notice of those encumbrances : and the mortgagee having been long in possession, the account taken in the former cause was not deemed conclusive against the plaintiffs in the new bill, though under the circumstances the court, on over- ruling the plea and ordering the defendant to answer, limited the order by directing that the defendant

(k) Child v. Gibson, 2 Atk. (n) Brandlyn v. Ord, 1 Atk.

603. But see 1 Vein. 310. 571. 14 Ves. 232.

(I) Pritman v. Pritman, (0) See Coysgarne v. Jones,

1 Vern. 310. Madge v. Brett, Ambl. 613. Collins v. Gough,

Finch. R. 46. Connelly. Warren, 4 Gwill. T. C. 1294. ib. 239. Earl of Peterborough (p) See Doyly v. Smith,

v. Germaine, 6 Bro. P. C. 1. 2 Ca. in Cha. ng. Godfrey v.

Toml. Ed. Chadwell, 2 Vern. 601. Athin-

(m) Seymour v. Nosivorthy, son v. Turner, 3 Barnard. 74. 1 Ca. in Cha. 155. Toth. 50.

PLEAS. 239

should answer to charges of errors or omissions, but that the plaintiffs should not unravel the account at large before the hearing ((f).

A decree must be signed and enrolled or it cannot be pleaded in bar of a suit (r), though it may be in- sisted upon by way of answer (s). But though it cannot be pleaded directly in bar of the suit for want of enrolment, it may perhaps be pleaded, to show that the bill was exhibited contrary to the usual course of the court, and ought not therefore to be proceeded upon (f). For if the decree appeared upon the face of the bill the defendant might demur (u), a decree not signed and enrolled being to be altered only upon a re-hearing (V), as a decree signed and enrolled can be altered only upon a bill of review (3/).

If a bill is brought to impeach a decree on the ground of fraud used in obtaining it, which, as has been observed (z), may be done without the previous leave of the court, the decree may be pleaded in bar of the suit, with averments negativing the charges of fraud, supported by an answer fully denying them (a). Whether averments negativing the charges

(q) Morrett v. Western, Lady Granville v. Ra?nsden,

15 July 1710, in Ch. reported Bunbury, 56.

2 Vern. 663. (x) 2 Vez. 598. See above, (r) Anon. 3 Atk. 809. Kin- p. 90.

sey v. Kinsey, 2 Vez. 577. (y) Read v. Hambey, 1 Ca. in

(s) 2 Vez. 577. And see Cba. 44. S.C. 2Freem.i79. See

Charles v. Roivley, 2 Bro. P. C. above, p. 237, note (A).

485. Toml. Ed." (*) Page 92.

(t) See 2 Vez. 577, note. (a) Wichalse v. Short, 3 Bro.

Chan. Pleas, 89. P. C. 558. Toml. Ed. S. C.

(u) Worthy v. Birkhcad, 2 Eq. Ca. Abr. 177, and 7 Vin.

3 Atk. 809. S. C. 2 Vez. 571. Abr. 398. pi. 15. 3 P. Wins.

240 PLEAS.

of fraud are necessary to a plea of this description appears to have been a question much agitated in recent cases (b) ; upon which it may be observed, that without such averments, if the decree were ad- mitted by the bill, nothing would be put in issue by the plea. The question in the cause must be, not whether such a decree had been made, but whether such a decree having been made it ought to operate to bar the plaintiff's demand. To avoid its operation the bill must allege fraud in obtaining it ; and to sustain it as a bar the fact of fraud must be denied and put in issue by the plea. For upon the ques- tion, whether the decree ought to operate as a bar, the fact of fraud is the only point upon which issue can be joined between the parties ; and unless the plea covers the fact of fraud it does not meet the case made by the bill ; and on argument of the plea, the charge of fraud, not being denied by the plea, must be taken to be true. If the bill states the

95. Gilb. For. Rom. 58. Trea- In the cases in the Court of

tise on Frauds, c. 18, p. 220. Exchequer it seems to have

Butcher v. Cole, at the Rolls, been supposed that the answer

26 June 1786, cited 1 Anstr. in support of the plea over-

99. See the cases of Sidney ruled the plea. But an answer

v. Perry, Parkinson v. Lecras, can only over-rule a plea where

Meadows v. Duchess of Kings- it applies to matter which the

ton, and Dexie v. Chester, defendant by his plea declines

mentioned in pages 247, 254, to answer ; demanding the

257, 2C3, 276. And see 6 Ves. judgment of the court, whether

59G. 1 Sch. & Lefr. 727. by reason of the matter stated

5 Madd. 330. 6 Madd. 64. in the plea he ought to be com-

(b) Pope v. Bish, 1 Anstr. pelled to answer so much of the

Exch. R. 59. Edmundson v. bill. See Arnold's case, Gilb.

Hartley, ib. 97. And see Bay- For. Rom. 59. ley v. Adams, 6 Ves. jun. 586.

PLEAS. 24I

decree only as a pretence of the defendant, which it avoids by stating, that if any such decree had been made it had been obtained by fraud, the decree must be pleaded, because the fact of the decree is not admitted by the bill ; and the charge of fraud must also be denied by the plea for the reasons before stated. If the bill states the decree abso- lutely, but charges fraud to impeach it, yet the decree must be pleaded, because the decree if not avoidable is alone the bar to the suit ; and the fraud by which the bar is sought to be avoided must be met by negative averments in the plea, because without such averments the plea would admit the decree to have been obtained by fraud, and would therefore admit that it formed no bar. When issue is joined upon such a plea, if the decree is ad- mitted by the bill, the only subject upon which evidence can be given is the fact of fraud. If that should be proved, it would open the plea on the hearing of the cause ; and the defendant would then be put to answer generally, and to make defence to the bill as if no such decree had been made. The object of the plea is to prevent the necessity of en- tering into that defence by trying first the validity of the decree. If the evidence of fraud should fail, the decree, operating as a bar, would determine the suit as far as the operation of the decree would extend.

It has also been objected, that a plea of the decree is a plea of the matter impeached by the bill ; but the frame of a bill in equity necessarily produces, in

R

242 PLEAS.

various instances, this mode of pleading (c). If the bill stated the title under which the plaintiff claimed, without stating the decree by which it had been affected, the defendant might have pleaded the decree alone in bar. If the bill stated the plaintiff's title, and also stated the decree, and alleged no fact to impeach it, and yet sought relief founded on the title concluded by it, the defendant might demur; because upon the face of the bill the title of the plaintiff would appear to be so concluded. But as in the form of pleading in equity the bill may state the title of the plaintiff, and at the same time state the decree by which, if not impeached, that title would be con- cluded, and then avoid the operation of the decree by alleging that it had been obtained by fraud ; if the defendant could not take the judgment of the court upon the conclusiveness of the decree by plea upon which the matter by which that decree was impeached would alone be in issue, he must enter into the same defence (by evidence as well as by answer) as if no decree had been made ; and would be involved in all the expense and vexation of a second litigation on the subject of a former suit, which the decree, if unimpeached, had concluded. It is therefore permitted to him to avoid entering into the general question of the plaintiff's title as not affected by the decree, by meeting the case made by the plaintiff, which can alone give him

(c) See 3 P. Wms. 3 17, where who objected to this mode of Lord Chancellor Talbot is stated pleading, observing that it was to have interrupted the counsel, every day's practice.

PLEAS. 243

a right to call for that defence, namely, the fact of fraud in obtaining the decree. This has been permitted to be done in the only way in which it can be done, by pleading the decree with averments denying the fraud alleged ; and those averments being the only matter in issue, they are necessarily of the very substance of the plea. The decree if obtained by fraud would be no bar ; and nothing can be in issue on a plea but that which is contained in the plea; and every charge in the bill not negatived by the plea is taken to be true on argument of the plea. If there- fore the decree merely were pleaded, on argument of the plea, the charge of fraud must be taken to be true, and the plea ought therefore to be over-ruled ; but if on argument the plea were allowed, or if the plain- tiff, without arguing, replied to the plea, no evidence could be given on the charges of fraud to avoid the plea, and the defendant proving his plea (Y/), that is, proving the decree and nothing more, would be entitled to have the bill dismissed at the hearing (e).

(d) Sir Joseph Jeh/ll, M. R. Cree ; if the defendant pleaded 3 P. Wms. 95. a decree binding the right, the

(e) Perhaps all the difficulties plaintiff might have replied, which have arisen upon this that the decree had been ob- subject have proceeded from taincd by fraud, by which the want of attention to the form plaintiff would have admitted of pleadings in courts of equity, that the decree was a bar, if not especially since the disuse of capable of impeachment on the special replications, rejoinders, ground of fraud; the defendant sur-rejoinders, &c. When those byrejoinderwouldhave avoided pleadings were allowed, the the charge of fraud, and sus- plaintiff might have stated his tained the decree; and then the case, without suggesting that issue would have been simply it had been affected by any dc- on the fact of fraud.

11 2

244 PLEAS.

As the averments negativing the charges of fraud are used merely to put the fact of fraud, as alleged by the bill, in issue on the plea, they may be ex- pressed in the most general terms, provided they are sufficient to put the charges of fraud contained in the bill fully in issue. And as the plaintiff is en- titled to have the answer of the defendant upon oath to any matter in dispute between them, in aid of proof of the case made by the bill, the defendant must answer to the facts of fraud alleged in the bill so fully as to leave no doubt in the mind of the court that upon that answer, if not controverted by evi- dence on the part of the plaintiff, the fact of fraud could not be established (f). If the answer should not be full in all material points, the court may pre- sume that the fact of fraud may be capable of proof in the point not fully answered, and may therefore not deem the answer sufficient to support the plea as conclusive, and therefore may over-rule the plea absolutely, or only as an immediate bar, saving the benefit of it to the hearing of the cause. But though the answer may be deemed sufficient to support the plea upon argument, the plaintiff may except to the answer if he conceives it not to be so full to all the charges as to be free from exception; or by

If) It seems to have been is no part of the defence ; but

imagined that there was some- that evidence which the plaintiff

thing incongruous in a plea, and has a right to require, and to

answer in support of the plea, use to invalidate the defence

6 Ves. 597. But this objec- made by the plea, upon argu-

tion seems to have arisen from ment of the plea, before other

a supposition that the answer evidence can be given, formed part of the defence. It

PLEAS. 245

amending his bill may require an answer to any matter which may not have been so extensively stated or interrogated to as the case would warrant ; or to which he may apprehend that the answer, though full in terms, may have been in effect evasive.

As the bill must be founded on the supposition that the plaintiff's title is not concluded by the decree, and the plea on the contrary supposition, the effect of the plea is, to conclude the whole case made by the bill, so far as it may be concluded by the decree, except the question of fraud ; and con- sequently all the questions which might have been raised, if the decree had not been made, are put by the plea, if allowed, wholly out of the cause, unless the plea should be shown to be false in fact by evi- dence given on the issue taken upon it, and the matter of the plea thus opened upon the hearing. It is there- fore a mistake to suppose that the plea, if sustained, would not shorten the cause, or lessen expense (g).

As the ground of this defence by plea of a decree

is that the matter has been already decided, a decree

of any court of equity, in its nature final, or made so

by subsequent order, may be pleaded in bar of a

new suit(//).

( g) The argument which is pleas of legal bars sought to contained in the few preceding be set aside upon equitable pages of the text, and the note grounds, with reference to which thereto, has been adopted and they have been respectively de- established by decided cases ; termined. See, however here, but these not relating to de- 2 Ves. & B. 364. 6 Madd. 64, crees, they will be adduced and 2 Sim. & Stu. 279. hereafter in illustration of the (h) Geale v. Wyntour, Bunb. doctrines relating to the several 311. Wing y. Wing, 10 Mod-

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246 PLEAS.

2. Another suit depending in the same or another court of equity for the same cause (i) is a good plea (A) ; except, perhaps, in the case of a suit de- pend! 1:^ in an inferior court of equity, the effect of which the defendant has avoided by going out of the jurisdiction of that court (/). The plea must aver that the second suit is for the same matter as the first ; and therefore a plea which did not ex- pressly aver this, though it stated matter tending to show it, was considered as bad in point of form, and over-ruled upon argument (ni). The plea must also

102. Anon. Mos. 268. Prit- same, it may be pleaded for man v. Pritman, 1 Vern. the purpose of obtaining a 310. Fitzgerald v. Fitzgerald, reference to a Master, to inquire 5 Bro. P. C. 567. Toml. Ed. whether the suits are for the but, as to the authority of this same matter, see Murray v. particular case, except in prin- Shadzvell, 1 7 Ves. 353, and of ciple, see stat. 23 Geo. 3, c. 28, getting a decision, upon his and stat. 39 & 40 Geo. 3, c. report of the fact, as to the 67. art. 8. See also Pitcher v. validity of the plea, and conse- Rigby, 9 Pri. Ex. R. 79. quently a determination of the

(i) Ord. in Cha. Ed. Bea. question whether the plaintiff

should or should not be allowed to proceed in the suit in which the plea has been filed. Barnard, 85. And see on this subject generally, Urlin v. , 1 Vern. 332. 1 Ves.

26. 176. Crofts v. Worthy ; 1 Ca. in Cha. 241. Foster v. Vassall, 3 Atk. 587. Bell v. Read, ibid. 590. Murray v. Shadxvell, 17 Ves. 353.

(k) It seems, that the pen- dency of another suit for the same cause, in a court of con- current equity jurisdiction, can- not, before a decree has been made in such other suit, be pleaded in bar, see Houlditch v. Marquis of Donegal!, 1 Sim. & Stu. 491 ; but, that where the parties in both courts are the

545. Daniel v. Mitchell, 3 Bro. C. C. 544. Anon. 1 Ves. jun. 484. 2 Ves. & B. 110. Jacksonv. Leaf, 1 Jac. & W. 229.

(I) See Morgan v. ,

1 Atk. 408. See also Foster v. Vassall, 3 Atk. 587, and Lord Dillon v. Alvares, 4 Ves. 357.

(»?) Devie against Lord

PLEAS. 247

aver that there have been proceedings in the suit, as appearance, or process requiring- appearance at the least (n). It seems likewise regular to aver that the suit is still depending (0) ; though as a plea of this nature is not usually argued, but being clearly a good plea if true, is referred to the examination and inquiry of one of the Masters of the court as to the fact(/>), it has been held that a positive averment that the former suit is depending is not necessary (q). And if the plaintiff sets down the plea to be argued, he admits the truth of the plea that a former suit for the same matter is depending, and the plea must therefore be allowed (r) unless it is defective in form (s). As the pendency of the former suit, unless admitted by the plaintiff, is made the imme- diate subject of inquiry by one of the Masters, a plea of this kind is not put in upon oath (t).

Broivnloiv, in Chan. 23d July order of reference to a Master

1783, rep. Dick. 611. to inquire into the truth of it.

(n) Anon. 1 Vern. 318. Moor Ord. in Cha. Ed. Bea. 176,

v. Welsh Copper Comp. 1 Eq. 177.. Baker v. Bird, 2 Ves.

Ca. Ab. 39. jun.672. Murray v. Shadwell,

(0) 3 Atk. 589. 17 Ves. 353. 2 Ves. & Bea.

(p) Ord. in Ch. Ed. Bea. 110. Carivick v. Young,

176,177. 2 Ves. & Bea. 110. 2 Swanst. 239. Carrick v.

(q) JJrlin v. , l Vern. Young, 4 Madd. 437. See

332. 3 Atk. 589, as to defects in

(r) 1 Vern. 332. Anon. 1 Ves. the form of such a plea,

jun. 484. Daniel v. Mitchell, (t) 1 Vern. 332. This how-

3 Bro. C. C. 544. ever can scarcely be deemed

(s) This is founded on a ge- to extend to a case of a suit

neral order of the Court, that depending in a foreign court,

the plaintiff shall not be put to And see Foster v. Vassall,

argue such a plea, but may ob- 3 Atk. 587. tain, in the first instance, an

R 4

24$ PLEAS.

It is not necessary to the sufficiency of the plea that the former suit should be precisely between the same parties as the latter. For if a man institutes a suit, and afterwards sells part of the property in question to another, who files an original bill touch- ing the part so purchased by him, a plea of the former suit depending touching the whole property will hold (u). So where one part-owner of a ship filed a bill against the husband for an account, and afterwards the same part-owner and the rest of the owners filed a bill for the same purpose, the pen- dency of the first suit was held a good plea to the last (.!'); for though the first bill was insufficient for want of parties, yet by the second bill the defendant was doubly vexed for the same cause. The course which the Court has taken where the second bill has appeared to embrace the whole subject in dispute more completely than the first, has been to dismiss the first bill with costs, and to direct the defendant in the second cause to answer upon being paid the costs of a plea allowed ( j/), which puts the case on the second bill in the same situation as it would have been in if the first bill had been dismissed before filing the second. Where a second bill is brought by the same person for the same purpose, but in a dif- ferent right, as where the executor of an administra- tor brought a bill, conceiving himself to be the per- sonal representative of the intestate, and afterwards

(?/) Moor v. Welsh Copper (y) Crofts v. Worthy, l Ca,

Comp. i Eq. Ca. Ab. 39. in Cha. 241.

(x) Durancl v. Hutchinson, Mich, 1771, in Chan.

PLEAS. 249

procured administration de bonis non, and brought another bill (*), the pendency of the former bill is not a good plea. The reason of this determination seems to have been, that the first bill being wholly irregular the plaintiff could have no benefit from it, and it might have been dismissed upon demurrer. Where a decree is made upon a bill brought by a creditor on behalf of himself and all other creditors of the same person, and another creditor comes in before the Master to take the benefit of the decree, and proves his debt, and then files a bill on behalf of himself and the other creditors, the defendants may plead the pendency of the former suit ; for a man coming under a decree is quasi a party (a). The proper way for a creditor in such a situation to pro- ceed, if the plaintiff in the original suit is dilatory, is by application to the Court for liberty to conduct the cause (b).

If a plaintiff sues a defendant at the same time for the same cause at common law and in equity, the defendant after answer put in(c) may apply to the Court that the plaintiff may make his election where he will proceed (d), but cannot plead the pendency of

(z) Huggins v. York Build- Comp. 2 Atk. 44.

(a) Neve v. Weston, 3 Atk. 557. 1 Sim. & Stu. 3G1.

(b) See Powell \. Wallworih, 2 Madd. R. 183. Sims v. Ridge, 3 Meriv. 458. Ed- munds v. Acland, 5 Madd. 31. Tleming v. Prior, 5 Madd. 423. Ilandford v. Storie, 2 Sim. & Stu. 19G.

(c) 3 P. Wms. 90. 1 Ball & B. 119. 319. Fisher v. Mee> 3 Meriv. 45. Hogue v. Curtis, 1 Jae. & W. 449. Browne v. Poyntz, 3 Madd. 24. Coup- land v. Bradock, 5 Madd. 14.

(d) 3 P, Wms. 90. Anon. 1 Ves. jun. 91. 1 Ball &c B. 320. Pieters v. Thomp- son, Coop. R. 294. But there is a distinction in the practice

250 PLEAS.

the suit at common law in bar of the suit in equity (e)y though the practice was formerly otherwise (/"). If the plaintiff shall elect to proceed in equity, the Court Will restrain his proceedings at law by injunction, and if he shall elect to proceed at law the bill will be dis- missed^). But if he should fail at law, this dis- mission of his bill will be no bar to his bringing a new bill (h).

Pleas in bar of matters of record, or of matters in the nature of matters of record, in some court not being a court of equity, may be 1 , a fine, 2, a re- covery, 3, a judgment at law, or sentence of some other court.

1 . A plea of a fine and non-claim, though a legal

where the Court is unable latter ; by instituting the suit in

at once to see that it is a this Court, he concludes hira-

case of election. See Boyd v. self from proceeding at Law,

Heinzelman, 1 Ves. & B. 381. and therefore of course is not

2 Ves. &B. 110. Mills v. Fry, entitled to the privilege of

3 Ves. & B. 9,(1814). election. Mills v. Fry, 19 Ves.

v. , 2 Madd. It. 395. 277 (1815).

Amory v. Brodrick, 1 Jac. R. (e) 3 P. Wms. 90. And it

530, and the cases therein should seem th pendency of

cited. In the instance of a a suit in an ecclesiastical court,

mortgagee taking the usual for payment of a legacy, could

bond for re-payment of the not be pleaded to a bill for simi-

mortgage-money, he is not lar relief here. Howell v. Wal-

bound to elect, but may pro- dron, 1 Ca. in Cha. 85.

ceed, under certain restrictions, if) Ord. in Cha. Ed. Bea.

upon his separate securities at *77*

Law and in Equity. Schoolev. (g) 3 P. Wms. 90, note.

Sail, 1 Sch. & Lefr. 176. But Mousley v. Basnett, 1 Ves. &

where the plaintiff sues in both B. 382, note. Fitzgerald v.

jurisdictions in an individual Sucomb, 2 Atk. 85.

character, and can have in the (h) Countess of Plymouth

former, only a part of the re- v. Bladon, 2 Vern. 32. lief which he can obtain in the

PLEAS. 251

bar, yet is equally good in equity (i) provided it is pleaded with proper averments (A1). Where a title is merely legal, though the defect is apparent upon the face of the deeds, yet the fine will be a bar in equity ; and a purchaser will not be affected with notice so as to make him a trustee for the person who had the right. For a defect upon the face of title-deeds is often the occasion of a fine being levied (/). And even a fine levied upon bare pos- session, with non-claim, may be a bar in equity, if a legal bar, though with notice at the time the fine was levied (m). But with respect to equitable titles there is a distinction. For where the equity charges the lands only, the fine bars (ft), but where it charges the person only in respect of the land (0), the fine does not bar ( p). Therefore if a man purchases from a trustee, and levies a fine, he stands in the place of the seller, and is as much a trustee as the seller was (r), pro- vided he has notice of the trust, or is a purchaser without consideration ($). So if the grantee of a

(i) Thynne v. Toivnscnd, W '. (I) 2 Atk. 631.

Jones, 416. Salisbury x. Bag- (m) Brereton v. Gamut,

g-0MCa.inCha.278. 2 Swanst. 2 Atk. 240.

610. Watkins v. Stone, 2 Sim. (n) Giffbrd v. Phillips, cited

& Stu, 560. 2 Swanst. 612.

(k) Story v. Lord Windsor, (0) Earl Kenoul v. Grevil,

2 Atk. 630. Hildyardv.Cressy, cited 2 Swanst. 611. S. C.

3 Atk. 303. Page v. Lever, 1 Ca. in Cha. 295.

2 Ves. jun. 450. Butler v. (p) 1 Ca. in Cha. 278. Every, 1 Ves. jun. 136. S. C. 2 Swanst. 611 ; and see 2 Atk.

3 Bro. C. C. 80. Dobson v. 390. 1 Sch. & Left. 381. Leadbeater, 13 Ves. 230. The (r) 2 Atk. G31. Kennedy object of the averments is of v. Daly, 1 Sch. & Lefr. 355. course to show that it was an (s) Gilb. For. Rom. 6-2. effectual fine, 13 Ves. 233. Boxy v. Smith, 2 Ca. in Cha.

2$2 PLEAS,

mortgagee levies a fine, that will not discharge the equity of redemption (/). But there are cases of equitable as well as of legal titles, in which a fine and non-claim will bar, notwithstanding notice at the time of levying the fine(w). It has been de- termined, however, that if a fine is levied where the legal estate is in trustees for an infant, and the trustees neglect to claim, the infant, claiming by bill within five years after he attains twenty-one, shall not be barred (V). But perhaps this should be under- stood as referring to the case of a fine levied with notice of the title of the infant ( y). Where a title to lands is merely equitable, as in the case of an agree- ment to settle lands to particular uses, claim to avoid the fine must be by subpcena (z). The pendency of a suit in equity will therefore in equity prevent in many cases the running of a fine (a). Upon the whole, wherever a person comes in by a title oppo- site to the title to a trust estate (b), or comes in under the title to the trust, estate, for a valuable considera-

124. S. C. 1 Vern. 60, and tess of Huntingdom, ibid. 310,

1 Vern. 84 ; on rehearing, see note G.

1 Vern. 144, the decree was (z) Salisbury v. Baggott, iCa. reversed : but see 1 Sch. & in Cha. 278. S. C. 2 Freem. Lefr. 379, 380. 21, and more accurately re-

(t) 2 Atk. 631. Contra, ported, from Lord Notting-

2 Freem. 21. 69; but see ham's MSS. 2 Swanst. 603.

1 Sch. & Lefr. 378. 380. (a) 2 Atk. 389, 390. Pincke

(u) 2 Atk. C31. Hildyard v. Thornycrqft, 1 Bro. C. C.

v. Cressy, 3 Atk. 303. Shields 289. S. C. 4 Bro. P. C. 92,

v. Atkins, 3 Atk. 560. Toml. Ed. 1 Sch. & Lefr. 432.

(x) Allen v. Sayer, 2 Vern. (b) Stoughtonv.Onsloiv, cited

368. 2 Swanst. 615 ; and 1 Freem.

(y) Wych v. E. I. Comp. jgll.

3 P. Wms. 309. Earlv. Coun~

PLEAS. 253

lion, without fraud, or notice of fraud, or of the trust(c) ; a fine and non-claim may be set up as a bar to the claim of a trust (7/). When a fine and non-claim are set up as a bar to a claim of a trust, by a person claiming under the same title, it is not sufficient to aver that at the time the fine was levied the seller of the estate, being seised, or pretending to be seised, conveyed ; but it is necessary to aver that the seller was actually seised. It is not, indeed, requisite to aver, that the seller was seised in fee; an averment that he was seised ut de liber 0 tenemento, and being so seised a fine was levied, will be sufficient (e). A fine and non-claim may be pleaded in bar to a bill of review (f).

2. To a claim under an entail, a recovery duly suffered, with the deed to lead the uses of that re- covery, may be pleaded, if the estate limited to the plaintiff, or under which he claims, is thereby destroyed (o).

3. If the judgment of a court of ordinary juris- diction has finally determined the rights of the parties, the judgment may in general be pleaded in bar of a bill in equity (h). Thus where a bill was brought by a

(c) 1 Sch. & Lefr. 380.

(d) Gilb. For. Rom. 63.

(e) 2 Atk. C30. 2 Sch. & Lefr. 99. And see the cases cited above, p. 251, note (k).

{/) Lingard v. Griffin, 2 Vern. 189.

(g) Att. Gen. v. Sutton, 1 P. Wms. 754. Salkcld against

Salkeld, 17C3, before Lord Northington. Broton v. Wil- liamson, Trin. 1772, before Lord Bathurst.

(//) See Throckmorton v. Finch, 4 Co. Inst. 86. S. C cited also in a Tract published at end of 1 Rep. in Cha. on Jurisd. of the Court of Cha.

254 PLEAS.

person claiming to be son and heir of Joscelin earl of Leicester, and alleged that the earl, being tenant in tail of estates, had suffered a recovery, and had declared the use to himself and a trustee in fee, and that the plaintiff had brought a writ of right to re- cover the lands, but the defendant had possession of the title-deeds, and intended to set up the legal estate which was vested in the trustee, and prayed a discovery of the deeds, and that the defendant might be restrained from setting up the estate in the trustee, the defendant pleaded, as to the discovery of the deeds and relief, judgment in her favour in the writ of right ; and averred that the title in the trustee, which the bill sought to have removed, had not been given in evidence : and the plea was allowed (i). In this case the bill was brought before the trial in the writ of right, and the plaintiff had proceeded to trial without the discovery and relief sought by his bill for the purposes of the trial. The plea was subse- quent to the judgment. It may be doubted there- fore whether the averment that the title in the trustee had not been given in evidence on the trial of the writ of right was necessary, as the judgment was a bar, as a release subsequent to the filing of the bill

Hunby v. Johnson, 1 Rep. in Penvitt v. Lus combe (1728) rep.

Cha. 243. Bluck v. Elliot, 2 Jac. & W. 201. 3 Bro.

Finch R. 13. Pitt v. Hill, C. C. 72. 1 Sch. & Lefr. 204.

Finch R. 70. Temple v. Bal- Ord. in Cha. 19, Ed. Bea. tinglass, Finch R. 275. Cor- (i) Sidney, styling himself

nell v. Ward, Finch R. 239. earl of Leicester, against Perry,

Wilcox v. Sturt, 1 Vern. 77. in Chan. 23d July 1783. Bissell v. Axtell, 2 Vern. 47.

PLEAS. 255

would have been ; and if the plaintiff could have avoided the effect of the judgment because the title in the trustee had been given in evidence, it should seem that that fact, together with the fact of the judgment, ought to have been brought before the court by another bill in the nature of a bill for a new trial, either as a supplemental bill, or as an original bill, the former bill being dismissed (k).

To a bill to set aside a judgment, as obtained against conscience (/), the defendant has been per- mitted to plead the verdict and judgment in bar(w); but it may be doubted whether in this case the de- fendant might not have demurred to the bill, as there does not appear to have been any charge in the bill requiring averment to support the plea. A sen- tence of any (n), even a foreign court (0), may be a

(k) Respecting the dispute 223. And see Seivel v. Free- in the time of Lord Ellesmere, ston, 1 Ca. in Cha. 65. Shuter raised by Lord Coke, upon the v. Gilliard, 2 Ca. in Cha. 250. question whether a Court of Armsted v. Parker, Finch R. Equity could give relief after 171. Huddl&stone v. Asbugg, a judgment at Law, see Finch R. 171. Anon. 3 Rep. 3 Blackst. Coram, p. 54. Gilb. in Cha. 25. For. Rom. 56 ; and the Tract (n) See the cases referred to on the Jurisdiction of the Court page 253, note (//.). of Chancery, comprising the (0) See Neivland v. Horse- Order of the King (James the man, 1 Vern. 21. S. C. 2 Ca. 1st), on the subject published in Cha. 74. Burrotvs v. Jemi- at the end of 1 Rep. in Cha. neau, Sel. Ca. in Cha. 69. Ed. 1715, and that Order at S. C. Mos. 1, Dick. 48. Gage end of Cary's Reports, Ed. v. Bulkeley, 3 Atk. 215. S. C. l650. 2 Vez. 556. White v. Hall,

(I) 2 Ves. jun. 135. 12 Ves. 320.

(m) Williams v. Lee, 3 Atk.

256 PLEAS.

proper defence by way of plea ; but the Court pro- nouncing the sentence must at least have had full jurisdiction to determine the rights of the parties (p). If there is any charge of fraud, or other circum- stance shown as a ground for relief, the judgment or sentence cannot be pleaded (q), unless the fraud, or other circumstance, the ground upon which the judg- ment or sentence is sought to be impeached, be denied, and thus put in issue by the plea, and the plea sup- ported by a full answer to the charge in the bill(r). Upon this principle the court of Exchequer determined upon a bill brought by insurers of part of the pro- perty taken on board the Spanish ships at Omoa. The bill charged that the navy, on whose behalf, as captors, the defendants had insured, were not the real captors, or not the only captors ; that the Spanish ships struck to the land-forces; and that although the court of Admiralty had condemned the ships taken as prizes to the navy, yet that condemnation had been obtained in consequence of the King's pro- curator-general having withdrawn a claim made on behalf of the Crown at the instance of the land-forces, and of an agreement between the sea and land- forces to make a division of the treasure ; and that the sentence was therefore, as against the plaintiffs, the insurers, not conclusive. The defendants pleaded

(p) Gage v. Bulkeley, 2 Atk. Rep. ; and see 2 Ves. jun. 135.

215. (r) 6 Ves. 596. As to the

(q) See 2 Ca. in Cha. 251 ; and necessity of these averments in

see the Tract and Order refer- the plea, and the support of the

red to in last page at the end of plea by answer, see p. 239

1 Rep. in Cha. and of Cary's et seq.

PLKAS. 257

the sentence of the Admiralty, both to discovery of the facts stated in the bill, and to the relief prayed. The plea was in many respects informal, but the Court was of opinion that the sentence thus impeached could not be pleaded in bar to the dis- covery sought by the bill, and that as a bar to relief it ought to have been supported by averments nega- tiving the grounds on which it was impeached by the bill 0).

A will, and probate even in the common form, in the proper ecclesiastical court, which is in the nature of a sentence (t), is a good plea to a bill by persons claiming as next of kin to a person supposed to have died intestate (u). And if fraud in obtaining the will is charged that is not a sufficient equitable ground to impeach the probate ; for the parties may resort to the ecclesiastical court, which is competent to determine upon the question of fraud (v). But where the fraud practised has not gone to the whole will, but only to some particular clause, or if fraud has been practised to obtain the consent of next of kin to the probate (3/), the courts of equity have

(s) Parkinson against Lecras, 23d Feb. 1781. (/) See 1 Atk. 516. (u) Jauncy v. Sealey, 1 Vera.

397-

(x) Archer v. Mosse, 2 Vern. 8. Nelson v. Oldjield, 2 Vein. 7<>. Alt. Gen. v. Ryder, 2 Ca. in Cha. 178. Plume v. Beetle, 1 P. Wins. 388. 2 P. Wins. 287. 2 Atk. 324. Kerrick v.

Brarisby, 7 Bro. P. C. 437. Total. Ed. Meadows v. Du- chess of Kington, Mich. 1777, reported Ambl. 75G. 5 Ves. C47. Griffiths v. Hamilton, 12 Ves. 298.

(y) As to the kind of relief which may be given where a probate has been obtained by fraud, see Barnes/y v. Poivel, 1 Vez. 284.

s

25§ PLEAS.

laid hold of these circumstances to declare the exe- cutor a trustee for the next of kin (3/). Where there are no such circumstances the probate of the will is a clear bar to a demand of personal estate (z) ; and where a testator died in a foreign country, and left no goods in any other country, probate of his will according to the law of that country was determined to be sufficient against an administration obtained in England (a).

Pleas in bar of matters in pais only, sometimes go both to the discovery sought, and to the relief prayed by the bill, or by some part of it ; sometimes only to the discovery, or part of the discovery ; and sometimes only to the relief, or part of the relief.

Pleas of this nature (which may go both to the discovery and relief sought by the bill, or by some part thereof, but which sometimes extend no farther than the relief) are principally: 1, A plea of a stated account; 2, Of an award ; 3, A release ; 4, Of a will or conveyance, or some instrument controlling or affecting the rights of the parties ; 5, A plea of any statute which may create a bar to the plaintiff's de- mand, as the statute for prevention of frauds and perjuries, or the statutes for limitation of actions, which may be considered as a plea of matter in pais; for though the statute itself is usually set forth in the plea, yet that perhaps is unnecessary, and the sub-

(y) Mar riot v. Mar riot, in (z) 12 Yes. 307.

Exch. 1 Stra 666, and argu- () j y> g ; y^

ment of Ld. Ch. Baron Gilbert. w ,y ■*'

Gilb. Ca. in Cha. 203. Ambl. 397- 762, 763.

PLEAS. 2,59

stance of the plea consists in the averment of matter necessary to bring the case within the particular sta- tute ; and therefore if those matters appeared on the face of the bill itself it may be presumed a demurrer would hold, though this has been doubted.

1 . A plea of a stated account is a good bar to a bill for an account (b). It must show that the ac- count was in writing, or at least it must set forth the balance (c). If the bill charges that the plaintiff has no counterpart of the account, the account should be annexed by way of schedule to the answer, that if there are any errors upon the face of it the plain- tiff may have an opportunity of pointing them out (d). If error (e) or fraud (f) are charged (g) they must

(b) Anon. 2 Freem. 62. 1 Vern. 180. Datvso?i v. Dawson,

1 Atk. 1. Sumner v. Thorpe,

2 Atk. 1. Penvil v. Luscombe, (1728) rep. 2 Jac. & W. 201.

Irvine v. Young, 1 Sim. & Stu.

333-

(c) 2 Atk. 399.

(d) Hankey v. Simpson, 3 Atk. 303.

(e) On the subject of this Court's interference, where there is error in a settled account, see Anon. 2 Freem. 62 . Proud v. Combes, 2 Freem. 183. S. C.

3 Rep. in Cha. 18, 1 Ca. in Cha. 55, 2 Freem. 183, Nels. 100, & 1 Eq. Ca. Ab. 12. Wright v. Coxon, 1 Ca. in Cha. 262. Bedellv. Bedell, Finch R. 5. Daivson v. Daxvson, 1 Atk. 1.

Bourke v. Bridgeman, 1 Bar- nard, 272. Roberts v. Kuffin, 2 Atk. 112. Pit v. Cholmon- deley, 2 Vez. 565. Johnson v. Curtis, 3 Bro. C. C. 266. Gray v. Minnethorpe, 3 Ves. 103. Lord ' Hardivicfox. Ver- non, 4 Ves. 411. 5 Ves. 837. Kinsman v. Barker, 14 Ves. 262. (f) As to its interference where the settlement of an account has been accompanied with fraud, see Vernon v. Vawdry, 2 Atk. 119. Nevoman v. Payne, 2 Ves. jun. 199. Wharton v. May, 5 Ves. 27. Beaumont v. Boult- bee, 5 Ves. 485. S. C. 7 Ves. 599. 11 Ves. 358. Langstaffev. Taylor, 14 Ves. 2G2. Drexo v. Power, 1 Sch. & Lefr. 182. (o) 9 Ves. 265,266.

S 2

260 PLEAS.

be denied by the plea as well as by way of an- swer (Ji) ; and if neither error nor fraud is charged, the defendant must by the plea aver that the stated account is just and true to the best of his knowledge and belief (i). The delivery up of vouchers at the time the account was stated seems to be a proper averment in a plea of this nature (k), if the fact was such (/).

2. An award may be pleaded to a bill to set aside the award and open the account (m) ; and it is not only good to the merits of the case, but likewise to the discovery sought by the bill (n). But if fraud or partiality are charged against the arbitrators (o), (h) Gilb. For. Rom. 56. of Clarke v. Earl of Ormonde,

1 Ca. in Cha. 299. 2 Freem. 62. 6 Ves. 596. Clarke v. Earl of Ormonde, 1 Jac. R. 116. And, it seems, if the plaintiff allege that he has no counterpart of the stated ac- count, the defendant must an- nex a copy thereof to his plea, Hahkey v. Simpson, 3 Atk. 303. And see above, p. 239, et seq.

(i) 3 Atk. 70. 1 Eq. Ca. Ab. 39. 2 Sch. & Lefr. 727. And see Matthews v. Walivyn, 4 Ves. 118. Middleditch v. Sharland, 5 Ves. 87.

(k) Gilb. For. Rom. 57. Walker v. Consett, Forrest's Exch. R. 157. Hodder v. IVatts, 4 Pri. Exch. R. 8. And see Wharton v. May, 5 Ves. 27.

(I) 2 Atk. 252. See the case

1 Jac. R. 116.

(m) Lingood v. Croucher,

2 Atk. 395. Lingood v. Eade, S. C. 2 Atk. 501. Burton v. Ellington, 3 Bro. C. C. 196.

(n) Tittenson v. Peat, 3 Atk. 529. Anon. 3 Atk. 644. As to plea of an award under an agreement to refer the matters in dispute to arbitration, entered into after bill filed, see Dryden v. Robinson, 2 Sim. & Stu. 529 ; and see Rotve v. Wood, 1 Jac. & W. 348. S. C. 2 Bligh P. C. 595.

(0) As instances see Ward v. Periam, cited 2 Atk. 396. 2 Vez. 316. S. C. reported 1 Turn. R. 131, note. Chicot v. Leqnesne, 2 Vez. 315. 2 Ves. jun. 1 35. Reynell v. Luscombe, 1 Turn. R..!35- n« Goodman v. Shyers, 2 Jac. & W. 249.

PLEAS.

26l

those charges must not only be denied by way of averment in the plea, but the plea must be sup- ported by an answer showing the arbitrators to have been incorrupt and impartial (g) ; and any other matter stated in the bill as a ground for im- peaching the award must be denied in the same manner.

3. If the plaintiff, or a person under whom he claims, has released the subject of his demand, 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 (i). In a plea of a release the defendant must set out the consideration upon which the release was made (f). A plea of a release there- fore cannot extend to a discovery of the consideration ;

Auriol v. Smith, 1 Turn. R. .121. Damson v. Sadler, 1 Sim. & Stu. 537.

(y) 2 Atk. 39G. 6 Ves. 594. 596. 2 Ves. & B. 3G4 ; and see Allardes v. Campbell, reported 1 Turn. 133, note. S. C. Bunb. 265. Rybott v. Barrett, 2 Eden 11. 131.

(r) Botverx. Sivadlin, 1 Atk. 294. Taunton v. Pepler, 6 Madd. 166. Clarke v. Earl of Ormonde, 1 Jac. R. 116. And see Roche v. Morgett, ,2 Sch. & Lefr. 721.

(s) Pusey v. Desbouveric, 3 P. Wins. 315. And with regard to this latter proposition, it may be remarked, that it is

in like manner necessary that the defendant should deny the equitable circumstances charged for the purpose of im- peaching the release, by aver- ments in his plea, and by an answer to the same effect, Lloyd v. Smith, 1 Anstr. Exch. R. 258. Frceland v. Johnson,

1 Anstr. Ex. R. 276. Waller v. Glanville, 5 Bro. P. C. 555. Tonal. Ed. 2 Sch. & Left. 727. C Madd. 64. 2 Sim. & Stu.

279-

(t) Gilb. For. Rom. 57. Griffith v. Manser, Hardr. 168.

2 Sch. & Lefr. 728 ; and see Walter v. Glanville, 5 Bro. P. C. 555- Toml. Ed.

s 3

202 PLEAS.

and if that is impeached by the bill, the plea must be assisted by averments covering the grounds on which the consideration is so impeached. Thus, to a bill stating various transactions between the defendant and the testator of the plaintiff, and imputing to those transactions fraud and unfair dealing on the part of the defendant, and impeaching accounts of the trans- actions delivered by the defendant to the testator on the ground of errors, omissions, unfair and false charges, and also impeaching a purchase of an estate conveyed by the testator to the defendant in consideration of part of the defendant's alleged demands, and praying a general account, and that the purchase of the estate might be set aside as fraudulently obtained, and the conveyance might stand as a security only for what was justly due from the testator's estate to the de- fendant ; a plea of a deed of mutual release, extend- ing to so much of the bill as sought a discovery, and prayed an account of dealings and transactions prior to and upon the day of the date of the deed of re- lease, and all relief and discovery grounded there- upon, and stating the deed to have been founded on a general settlement of accounts on that day, and to have excepted securities then given to the defendant for the balance of those accounts which was in his favour, and averring only that the deed had been prepared and executed without any fraud or undue practice on the part of the defendant, was over-ruled. The consideration for the instrument was the general settlement of accounts ; and if those accounts were liable to the imputations cast upon

PLEAS- 263

them by the bill (w), the release was not a fair trans- action, and ought not to preclude the Court from decreeing a new account. The plea therefore could not be allowed to cover a discovery tending to impeach those accounts, and the fairness of the settled accounts was not put in issue by the plea, or supported by an answer denying the imputations charged in the bill. The plea indeed was defective in many other particu- lars, necessary to support it against the charges in the bill ; and to some parts of the case made by the bill the release did not extend (V). A release pleaded to a bill for an account must be under seal (3/); a release not under seal must be pleaded as a stated account only(s). 4. To a bill brought upon a ground of equity by an heir at law against a devisee, to turn the devisee out of possession, the devisee may plead the will, and that it was duly executed (a). But in cases of this kind where the bill has also prayed a receiver, a plea extending to that part of the bill has been so far over- ruled, as it might be necessary for the Court in the progress of the cause to appoint a receiver (b). Upon a bill filed by an heir against a person claiming under

(u) Though an account be (z) Gilb. For. Rom. 57.

stated under hand and seal, yet (fl) Amn> g Atk# , ^ Amti$

if there appear any mistake v Dowsingy cited 2 Vez. 361.

in it the Court will relieve. Mcadows v. Duch.0f Kingston,

See the cases cited above, 259, Mich. i777, reported Ambl.

note (e). n a. «, Meriv. 171

(x) Roche v. Morgell, 2 Sch. 75b* 3 iVieriV* *71" &Lefr. 721. {b) Anon. 3 Atk. 17, and

y) But it need not be Meadows v. Duch. of Kingston.

signed. Taunton v. Pepkr, But see 2 Vez. 362, 363. 6 Madd. 166.

S 4

264 PLEAS.

a conveyance from the ancestor, the defendant may plead the conveyance in bar of the suit. To a bill by one partner in trade against his copartner for discovery and relief relative to the partnership transactions, a plea of the articles of partnership, by which it was agreed that all differences which might arise between the partners should be referred to arbitration, and that no suit should be instituted in law or equity until an offer should have been made to leave the matter in difference to arbitra- tion, and that offer had been refused, has been al- lowed (c). This case has been much questioned ; and it now seems to be determined that such an agreement cannot be pleaded in a bar of suit (d), nor will the Court compel a specific performance of the agreement (e). Indeed it seems impossible to main- tain that such a contract should be specifically per- formed, or bar a suit, unless the parties had first agreed upon the previous question, what were the matters in difference, and upon the powers to be given to the arbitrators, amongst which the same means of obtaining discovery upon oath, and pro- duction of books and papers, as can be given by a court of equity might be essential to justice. The nomination of arbitrators also must be a subject on

(c) Half hide v. Penning, S. C. 2 Ves. jun. 129. Street 2 Bro. C. C. 336. Contra, v. Rigby, 6 Ves. jun. 815. 14 Wellington v. Mackintosh, 2 Ves. 270. Waters v. Taylor, Atk. 569. 15 Ves. 10.

(d) Satterly v. Robinson, (e) 6 Ves. jun. 818. MUnes Exch. 17 Dec. 1791. Michell v. Gery, 14 Ves. 400.

v. Harris, 4 Bro. C. C. 311.

PLEAS. 265

which the parties must previously agree ; for if either party objected to the person nominated by the other, it would be unjust to compel him to submit to the decision of the person so objected to as a judge chosen by himself. It must also be determined that all the subjects of difference, whether ascertained or not, must be fit subjects for the determination of arbitrators, which, if any of them involved important matter of law, they might not be deemed to be.

5. The statute for prevention of frauds and per- juries (/") may be pleaded in bar of a suit to which the provisions of that act apply (g). This form of pleading generally requires negative averments to support the defence (//). Thus, to a bill for discoveiy and execution of a trust, the statute, with an aver- ment that there was no declaration of trust in writing, may be pleaded (i), though in the case cited the plea

{f) 29 Car. II. c. 3. Bowers v. Cator, 4 Ves. 91.

(g) Gilb. For. Rom. 61. 2Ves.&B.364. And where there

Bawdes v. Amhurst, Pre. in are not equitable circumstances

Cha. 402. O'Reilly v. Thomp- stated in the Bill, which might

son, 2 Cox R. 271. Gunter operate to prevent the relief

v. Halsey, Ambl. 586. Jordan sought by the plaintiff being

v. Sawlcins, 3 Bro. C. C. 388. barred by the Statute, but the

S. C. 1 Ves. jun. 402. Main agreement is alleged to have

v. Melbourn, 4 Ves. 720. As been in writing, and facts are

to the equitable grounds upon charged in evidence thereof,

which a case may be exempted negative averments are also re-

from the operation of the quisite to the defence, Evans

Statute of Frauds, see 3 Ves. v. Harris, 1 Ves. & B. 361 ;

38, note (a). and see Jones v. Davis, 16 Ves.

(h) Stewart v. Careless, cited 2C2.

2 Bro. C. C. 565. Dick. 42. (s) Cottington v. Fletcher,

Moore v. Edwards, 4 Ves. 23. 2 Atk. 156.

266 PLEAS.

was over-ruled by an answer, admitting, in effect, the trust. To a bill for a specific performance of agreements, the same statute, with an averment that there was no agreement in writing signed by the parties, has been also pleaded (A). It has been understood that this plea extended to the discovery of a parol agreement, as well as to the performance of it, except where the agreement had been so far performed that it might be deemed a fraud on the party seeking the benefit of it, unless it was com- pletely carried into execution (/), and cases "have been determined accordingly (i?i). This has of late been the subject of much discussion, and some contrariety of decision. In one case (w) the Court appeared to have conceived that the courts of equity in determin- ing cases arising upon this statute had laid down two propositions founded on rules of equity, and had given a construction to the act accordingly, which amounted to this, that the act was to be construed as if there had been an express exception to the

(k) Mussell v. Cooke, Prec. in Chan. 533. Child v. Godol- phm, cited, 2 Bro. C. C. 566. S. C. Dick. 39. Child v. Comber, 3 Swanst. 423, n. Haivkins v. Holmes, 1 P. Wms. 770. Clerk v. Wright, 1 Atk. 12.

(I) That this is the con- struction put upon acts of part performance, see 1 Sch. & Lefr. 41. 3 Meriv. 246. Morphett v. Jones, 1 Swanst. 172, and

the authorities therein referred to.

(m) Hollis v. Whiteing, lY em. 151. W holey v. Bagnal, l Bro. P. C. 345. Toml. Ed. And see Whitbread v. Brockhurst,

1 Bro. C. C. 404. S. C. 2 Ves. & Bea. 153, n. Whitchureh v. Bevis, 2 Bro. C. C. 559.

(w) Whitchurch v, Bevis, in Ch. 8 Feb. 1786, reported

2 Bro. C. C. 559.

PLEAS. 267

extent of those rules in favour of courts of equity ; and that no action was to be sustained except upon an agreement in writing, signed according to the re- quisition of the statute, and except upon bills in equity, where the party to be charged confessed the agreement by answer, or there was a part perform- ance of the agreement. It was therefore determined that to the fact of the agreement the defendant must answer. But the Court, afterwards, upon a re-hearing, allowed the plea (0). In subsequent cases this subject was much discussed, and the question was particu- larly considered, whether, if the defendant admitted by answer the fact of a parol agreement, but insisted on the protection of the statute, a decree could be pronounced for performance of the agreement with- out any other ground than the fact of the parol agreement thus confessed. At length it seems to have been decided, that though a parol agreement be confessed by the defendant's answer, yet if he insists on the protection of the statute no decree can be made merely on the ground of that confession (p) ; and it may now, apparently, be concluded that a plea of the statute cannot in any case be a bar to a discovery of the fact of an agreement; and that as the benefit of the statute may be had if in- sisted on by answer, there can be no use in pleading

(0) Whitchurch v . Bevis, on (;;) 1 Br0.CC.4iG. IVhit-

rehcaring, Hil. vac. 1789, prin- church x. Bevis, 2 Bro. C. C.

cipally on the authority of 559. 4 Ves.jun. 23,24. 6 Ves.

Whalcy v. BagnnI, 1 Bro. P. 37- ^ Ves. 471. 1 5 Ves.

C. 345. Toml. Ed. 375-

268 PLEAS.

it in bar of relief. Whether the same rule would be applied to a confession of a trust by an answer, which may be considered as a declaration of the trust in writing, signed by the party, as indeed the con- fession of a parol agreement by answer might also be deemed, seems to be an important question, not agi- tated in the cases decided with respect to other agreements, and upon which it may be very difficult to make a satisfactory distinction. In the cases in which it was formerly considered that a plea of this statute was the proper defence, it was conceived that any matter charged by the bill which might avoid the bar created by the statute must be denied, ge- nerally, by way of averment in the plea, and parti- cularly and precisely by way of answer to support the plea. But according to one case (q), if any such matter were charged in the bill it became impossible to plead the statute in bar ; the Court having deter- mined that denial of the matter so charged made the plea double (r), and therefore informal ; and it may now be doubtful whether a plea of the statute ought in any case (except perhaps the case of a trust) to extend to any discovery sought by the bill, and in- deed whether it ought not to be deemed a needless and vexatious proceeding if confined to relief (V).

• (q) Whitbread v. Brockhurst, or by plea, and whether neces- 1 Bro. C. C. 404. S. C. 2 Ves. sary, see Newton v. Preston,

•& B. 153, n. Pre. in Ch. 103. See also

(r) On the subject of double Kirk and Webb, Pr. in Ch. 84.

• pleas, see hereafter, pp. 295, 296. And see Roivev. Teed, 15 Ves.

(s) As to the effect of insist- 372. 18 Ves. 182. Morphett ing on the statute by answer, v. Jones, 1 Swanst. 172.

PLEAS. 2(n)

The statute for limitation of actions (t) is likewise a good plea (u). But if the bill charges a fraud, and that the fraud was not discovered (.v) till within six years before filing the bill, the statute is not a good plea,unless the defendant denies the fraud (3/), or avers that the fraud, if any, was discovered within six years before filing the bill (z). And though the statute of limitations is a bar to the claim of a debt, it was formerly determined not to be a bar to a discovery when the debt became due ; for if that had been set forth it would appear to the court whether the time limited by the statute was elapsed (a), but later de- cisions have been to the contrary (/>). These deci- sions are stated to have been founded on a rule adopted of late years, that where a demurrer to re- lief would be good, the same ground of demurrer would extend to the discovery on which the relief prayed was founded ; and applying this rule, origi-

(t) 21 Jac. I. c. 16. mondsell, 3 P.Wms. 143. Sut-

(u) Gilb. For. Rom. 6l. ton v. Earl of Scarborough,

Wych v. East India Comp. 9 Ves. 71. But according to

3 P. Wms. 309. Lacon v. Whit bread v. Brockhurst, 1 Bro.

Lacon, 2 Atk. 395. Earl of C. C. 404, and 2 Ves. & B.

Strafford v. Blakeway, 6 Bro. 153, n. this should be consi-

P. C. 630. Toml. Ed. Barber dered a double plea.

v. Barber, 18 Ves. 286, and the (a) Mackworth v.' Clifton,

cases therein cited. 2 Atk. 51. 2 Sch. & Lefr.

(x) See 2 Sch. & Lefr. 631 635.

and 633, and following pages, (b) Sutton v. Earl of Scar-

and the cases therein cited; borough, 9 Ves. jun 71, and

and 2 Ball & B. 118. other authorities there cited.

(y) Bicknell v. Gough, 3 Atk. And see Baillie v. Sibbald,

55%- 15 Ves. 185. Cork v. Wilcock,

(z) South Sea Comp. v. Wy- 5 Madd. 328.

2^0 PLEAS.

nally confined to demurrers, to pleas also (b). It may be doubted whether in this extension of the rule to pleas the difference between a plea and demurrer has been sufficiently considered. A demurrer founds itself on the bill, and asserts no matter of fact the truth of which can be disputed. A plea, on the contrary, asserts a fact the truth of which is put in issue by the plea. When therefore the statute of limitations is pleaded to a demand, and the question to be tried on the issue joined upon the plea is, whe- ther the debt became due within six years before the filing of the bill, it is denying the plaintiff the benefit of that discovery in aid of proof which is allowed in all other cases, to hold that a plea of the statute of limitations, with an averment that the cause of action, if any, occurred six years before the filing of the bill will be a bar to a discovery of the truth of that aver- ment (c). In the case of money received by the de- fendant for the use of the plaintiff, and where the sums received, as well as the times when they were respectively received, may rest in the knowledge of the defendant only, it may amount to a complete denial of justice to hold that a plea of the statute of limitations, with such an averment, is a bar to any discovery as to the sums received, and when received, and of whom, and as to entries in books, and other papers, which discovery might enable the plaintiff to

(b) See the distinction taken ported by Cork v. Wilcock, on this subject in James v. 5 Madd. 328; and 1 Sim. & Sadgrove, 1 Sim. & Stu. 4. Stu. 6.

(c) This argument is sup-

PLEAS. 27t

prove the falsehood of the plea by witnesses and production of papers, as well as by the defendant's answer. Where a particular special promise is charged to avoid the operation of the statute (//), the plaintiff must deny the promise charged by averment in the plea(e), as well as by answer to support the plea(/). Where the demand is of any thing exe- cutory, as a note for payment of an annuity, or of money at a distant period, or by instalments, the defendant must aver that the cause of action (g) hath not accrued within six years, because the statute bars only as to what was actually due six years before the action brought (A). Upon a bill for discovery of a title, charging fraud, and praying possession, the statute of limitations alone is not a good plea to the discovery, so far as the charge of fraud extends, for the defendant must answer to the charge of fraud (i), and the plea must put the fraud in issue. The statute of limitations may be pleaded to a bill to redeem a mortgage (k) if the mortgagee

(d) See Andrews v. Brotvn, of an intermediate acknowledg- Pre. in Cha. 385. ment of the plaintiff's right

(e) Anon. 3 Atk. 70. Rut having been made, defeated the this, according to Whitbread v. plea.

Brockhurst, l Bro. Ch. Ca. 404, (J) Bicknell v. Gough, 3 Atk.

would be a double plea. 558. 2 Sch. & Lef. G35.

(f) See on this subject, (A) On the question whether Bayley v. Adams, 6 Ves. 586 ; the statute itself applies to a 5Madd.330;andiSim.&Stu.6. case of this kind, or whether

(g) 2 Strange, 1291. the rule that twenty years pos- (h) 3 Atk. 71. See above, session by the mortgagee, sub-

p. 269, note (z). And see the ject to the usual exceptions of case of Hony v. Hony, 1 Sim. infancy, &c. without his doing & Stu. 568, in which the fact any act which is to be regarded

272 PLEAS.

has been in possession twenty years (/) ; and indeed a demurrer has been allowed in this case (??i) where the possession has appeared upon the face of the bill (n), though some cases seem to be to the con- trary (o). To a bill, on an equitable title to presen- tation to a living, seeking to compel the defendant to resign, plenarty for six months before the bill was filed may be pleaded in bar, the statute of Westminster the second (p) being considered for this purpose as a statute of limitation, in bar of an equi- table as well as of a legal right (y). But if a quare impedit is brought before the six months are expired, though the bill is filed after, it may be in some cases a ground for the court to interfere (r), and consequently plenarty would not in such cases be pleadable in bar. The statute of limitations may also be pleaded to a bill of revivor, if the proper representative does not pro- ceed within six years after abatement of a suit, pro- as an acknowledgment that the 2 Sch. & Lefr. 638. And see relation of debtor and creditor Hodle v. Healey, 1 Ves. & B. still subsists, has been adopted 536, and the cases therein in courts of equity, in confor- cited.

mity with the provisions of the (n) Edsell v. Buchanan, 4

statute, see 1 Cox R. 149. Bro. C. C. 254. 2 Sch. & Lefr. 630. 632. 1 (0) 3 Atk. 225, 226, and the

Ball & B. 167. 17 Ves. 97. authorities there cited. 99. 19 Ves. 184. 2 Jac. & (p) 13 Edw. I. c. 5. W. 145. 187; and see Bleivit (q) Gardiner \. Griffith, 2 P.

v. Thomas, 2 Ves. jun. 669. Wms. 404. 3 Atk. 459. Bote-

(l) Aggas v. Picherell, 3 Atk. Icr v. Allington, 3 Atk. 453. 225. 2 Ves. jun. 280. And see Mutter v. Chanvdl,

■ (m) 3 P. Wms. 287, note. 1 Meriv. 475. See also 1 Vein. 418, and Bed- (r) 2 P. Wms. 405.

ford v. Tobin, ab. p. 213, n.

PLEAS. 273

vided there has been no decree (s), for a decree being in the nature of a judgment the statute of limi- tations cannot be applied to it (t). But where the consequence of reviving proceedings to carry a decree into execution would have been to call on representa- tives to account for assets after a great length of time, and under peculiar circumstances of laches, a bill of revivor and supplement for those purposes was dis- missed (m). Although suits in equity are not within the words of the statute, the courts of equity gene- rally adopt it as a positive rule, and apply it by parity of reason to cases not within it (#). In general they also hold that unless the defendant claims the benefit of the statute by plea or answer he cannot insist upon it in bar of the plaintiff's demand (j/) ; but notwithstanding, the courts will in cases which will allow of the exercise of discretion use the sta- tute as a rule to guide that discretion (z) ; and will also sometimes resort to the policy of the ancient

(s) Hollingshead's case, 1 P. Wms. 742. Combers case,

1 P. Wms. 766. 2 Sch. & Left. 633. 1 Ball &B. 531.

(t) 1 P. Wms. 744. 2 Sch. & Lefr. C33.

(u) Hercy v. Dinxuoody, 4 Bro. C. C. 257.

(x) Lord Mansf. 2 Burr. 961.

2 Atk. 611. 3 Bro. C. C. 340, note, l Sch. & Lefr. 428.

(y) » Atk- 494-

(z) 1 Atk. 494. Courts of

Equity it seems, in respect of

legal titles and demands, are bound by the statute, 2 Sch. & Lefr. 630, 631 ; and see Hony v. Hony, 1 Sim. & Stu. 568; but, in respect of equitable titles and demands, are only in- fluenced in their determination by analogy to it. 1 Sch. & Lefr. 428. 2 Sch. & Lefr. 632. loVes. 466. 15 Ves. 496. 17 Ves. 97. 1 Ball &B. 119. 166. 2Jac. & W. 1G3, and following pages, particularly p. 175, and 2 Jac. & W. 192.

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274 PLEAS.

law, which in many cases limited the demand of accruing profits to the commencement of the suit(«).

Any other public statute which may be a bar to the demands of the plaintiff may be pleaded, with the averments necessary to bring the case of the de- fendant within the statute, and to avoid any equity which may be set up against the bar created by the statute (Z»).

A particular statute may also be pleaded in the same manner. Thus, to a bill impeaching a sale of lands in the fens by the conservators under the sta- tutes for draining the fens, the defendant pleaded the statutes, and that the sale was made by virtue of and according to those statutes, and the plea was allowed (c).

X. Supposing a plaintiff to have a full title to the relief he prays, and the defendant can set up no defence in bar of that title, yet if the defendant has an equal claim to the protection of a court of equity to defend his possession, as the plaintiff has to the assistance of the court to assert his right, the court will not interpose on either side(d). This is particularly

(a) On this subject see Pul- stone v. Benson, 2 Sim. & Stu. teney v. Warren, 6 Ves. 73. 265. And see De Tastet v. Pettiward v. Prescott, 7 Ves. Sharpe, 3 Madd. 51.

541 . (c) Brotvn v. Hamond, 2 Ch.

(b) See instances of a plea Ca. 249.

of the statute of maintenance, (d) See 2 Ves. jun. 457, 458,

32 Hen. 8, c. 9, s. 3, Hitchins and the authorities there re-

v. Lander, Coop. R. 34 ; Wall ferred to ; and see the case of

v. Stubbs, 2 Ves. & Bea. 354; Gait v. Osbaldeston, 5 Madd.

and another example of the 428. S. C. 1 Russ. R. 158. One

proposition in the text, Ockle- exception has however been

PLEAS. 275

the case where the defendant claims under a pur- chase or mortgage for valuable consideration without notice of the plaintiff's title, which he may plead in bar of the suit (e). Such a plea must aver that the per- son who conveyed or mortgaged to the defendant was seised in fee, or pretended to be seised (/), and was in possession (g), if the conveyance purported an immediate transfer of the possession at the time when he executed the purchase or mortgage-deed (h). It must aver a conveyance, and not articles merely (/'); for if there are articles only, and the defendant is injured, he may sue at law upon the covenants in the articles (k). It must aver the consideration (I) and actual payment of it; a consideration secured to be paid is not sufficient (in). The plea must also deny notice (n) of the plaintiff's title or claim (0), previous to

made in favour of a dowress, reversion, see Hughes v. Garth,

see Williams v. Lambe, 3 Bro. Ambl. 42 1 . S. C. 2 Eden R. 1 68.

C. C. 2C4. (i) Fitzgerald v. Lord Fal-

(e) Fitzgerald v. Bur k, 2 Atk. conbridge, Fitzg. 207. 1 Atk.

397. Story v. Lord Windsor, 571. 3 Atk. 377.

2 Atk. C30. Bullock v. Sadler, (k) 1 Atk. 571.

Ambl. 763. Strode v. Black- (I) 1 Ca.in Cha. 34. Millard's

burne, 3 Ves. 222. Wallvoyn v. Case, 2 Freem.43. Brcrcton v.

Lee, g Ves. 24. 1 Ball & B. Gamut, 2 Atk. 240.

171.2 Ball & B. 303. (m) Hardingham v. Nicholls,

{/) 3 P. Wms. 281. Story 3 Atk. 304. Maitlandv. Wil-

v. Lord Windsor, 2 Atk. 630. son, 3 Atk. 814.

1 7 Ves. 250. (n) On the subject of notice,

(g) Trevanian v. Mosse, 1 actual and constructive, see

Vern. 246. 3 Ves. 226. 9 Sugden's Vend. & Purch. 6th

Ves. 32. 16 Ves. 252. Ed. 710.

(h) 3 P. Wms. 281 . As to the (0) Lady Bodmin v. Va fide- case where the purchase is of a bendy, 1 Vern. 1 79. Jones v.

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276 PLEAS.

the execution of the deeds and payment of the con- sideration (jj) ; 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 (q). If particular instances of notice, or circumstances of fraud are charged, they must be denied as specially and particularly as charged in the bill (r). The special and particular denial of notice or fraud must be by way of answer, that the plaintiff maybe at liberty to except to its sufficiency (s) ; but notice and fraud must also be denied generally by way of averment in the plea, otherwise the fact of notice or of fraud will not be

Thomas, 3 P. Wms. 243. Kel- (r) Radford v. Wilson, 3 Atk.

sail v. Bennet, 1 Atk. 522. 815. 2 Vez. 450. Jarrard

(p) More v. Mayhotv, 1 Ca. v. Saunders, 2 Ves. jun. 187.

in Cha. 34. S. C. 2 Freem. S. C. 4 Bro. C. C. 322. 175. 1 Eq. Ca. Ab. 38. 334. (5) Anon% 2 Ca. in Cha. 161.

Tourville v. Naish, 3 P. Wms. pnce v# price, 1 Vern. 125. 6

307. 1 Atk. 384. 2 Atk. 631. Ves. 596. 14 Ves. 66. It has

3 Atk. 304. been lately declared, that it is

( q) 1 Atk. 522. And it must not the office of the plea to

not appear that the defendant, aenv particular facts of notice ;

though he should claim as Dut tnat it is sufficient, where

purchaser under a settlement sucn facts are alleged, to make

executed at the time of his a general denial which will

marriage, might have had no- include constructive as well as

tice of the plaintiff's title by actual notice : yet that if cir-

using due diligence in the in- cumstances be specially charged

vestigation of his own. Jackson as evidence of notice, they must

v. Rowe, 2 Sim. & Stu. 472 ; be denied by averments in the

and see Hamilton v. Royse, plea, and by an answer accom-

2 Sch. & Lefr. 315. 13 Ves. panying the same. Pennington

1 20. 14 Ves. 433. 6 Dow. P. C. v. Beechey, 2 Sim. & Stu. 282. 223, 224. 6 Madd. 59.

PLEAS. 277

in issue (s). Notice or fraud thus put in issue, if proved, will effectually open the plea on the hearing of the cause.

(s) Harris v. Ingledeiv, 3 P. Wms. 94. 3 P. Wms. 244, note. Gilb. For. Rom. 58. Treat, of Frauds, c. 18, p. 220. In the case of Meadows v. D tick. of Kiagston,Mich. 1777, (S.C. reported Ambl. 756.) the Chan- cellor seemed to be of opinion, that notice and fraud were to be denied by way of averment in the plea, in cases only where the denial made part of an equitable defence ; as in a plea of purchase for valuable consi- deration, the denial of notice must be by way of averment in the plea, because the want of notice creates the equitable bar. But in Devie and Chester, in Chan. March 10th, 1780, a decree establishing a modus having been pleaded to a bill for tithes, in which the plaintiff stated that the defendants set up the decree as a bar to his claim, and to avoid the effect of the decree charged that it had been obtained by collusion, andstated facts tending to show collusion; the Chancellor was of opinion, that the defendants not having by averments in the plea denied the collusion, al- though they had done so by answer in support of the plea,

the plea was bad in form, and he over-ruled it accordingly. And in Hoare and Parker, in Ch. 17th and 19th of Jan. 1785. (reported 1 Bro. C. C. 578. S. C. 1 Cox. R. 224,) the plaintiffs having brought their bill as trustees, claiming quantities of plate described in a schedule annexed to the bill, of which the use had been given by the will of admiral Stewart to his widow for her life, and after her death to his son and his issue ; against the defendant, a pawn-broker, with whom the plate, or part of it, was alleged to have been pledged by the widow; and the bill having sought a discovery of the particular pieces of plate pawned, in order to found an action of trover, the defendant pleaded to so much of the bill as sought a discovery of the plate pawned, as after mentioned in the plea, and of the plate spe- cified in the schedule annexed to the bill, that Mrs. Stewart had pledged divers articles of plate at several times stated in the plea, for sums of money specified in the plea, which sums the defendant averred were paid to Mrs. Stewart ;

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278 PLEAS.

A purchaser with notice, of a purchaser without notice, may shelter himself under the first pur- chaser (f). But notice to an agent is notice to the principal («) ; and where a person having notice purchased in the name 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 conveyance, the person first contracting was considered from the beginning as the agent of the actual purchaser, who was therefore held affected with notice (#). A settlement in con- sideration of marriage is equivalent to a purchase for a valuable consideration (j/), and maybe pleaded in the

and he also averred that he had no notice of the will of admiral Stewart till after the death of Mrs. Stewart ; but he did not aver by his plea that he had no plate pawned with him by Mrs. Stewart besides the pieces pawned at the parti- cular times mentioned in the plea, although he did by his answer deny that he had any other. The Chancellor was of opinion that the plea was therefore defective in point of form, as it extended to all the plate mentioned in the schedule of which a discovery was sought by the bill. See 6 Ves. 595. 597 ; and see p. 239, et seq.

(t) Brandlyn v. Orel, 1 Atk. 571. Lovother v. Carlton, 2 Atk.

139. S. C. 2 Atk. 242. Ca. t. Talb. 1 87. 2 Eq. Ca. Ab. 685. Siveet v. Southcote, 2 Bro. C. C. 66. Ambl. 313. 11 Ves. 478. 13 Ves. 120 ; and see Harrison v. Forth, Pre. in Cha. 51.

(w) Brotherton v. Hatt, 2 Vern. 574. Le Neve v. Le Neve, 3 Atk. 646. 1 Vez. 62. 2 Vez. 62.370. 13 Ves. 120. Mount- ford v. Scott, 3 Madd. 34.

(x) Jennings v. Moore, 2 Vern. 609. S. C. on appeal, under title Blcnkarne v. Jennens, 2 Bro. C. C. 278. Toml. Ed. Coote v. Mammon, 5 Bro. P.C. 355. Toml. Ed.

(y) 1 Atk. 190. 6 Ves 659. 18 Ves. 92. 6 Dow P. C. 209. 2 Sim. & Stu. 475.

PLEAS. 279

same manner (?/). If a settlement is made after mar- riage in pursuance of an agreement before marriage, the agreement as well as the settlement must be shown (z). A widow, defendant to a suit brought by any person claiming under her husband, to discover her title to lands of which she is in possession as her jointure, may plead her settlement in bar to any discovery, unless the plaintiff offers, and is able, to confirm her jointure. But a plea of this nature must set forth the settlement, and the lands comprised in it, with sufficient certainty (a). A plea of pur- chase for a valuable consideration protects a de- fendant from giving any answer to a title set up by the plaintiff, but a plea of bare title only, without setting forth any consideration, is not sufficient for that purpose (b). Upon a plea of purchase for a valuable consideration to a discovery of deeds and writings, the purchase-deed must be excepted, for it is pleaded (c).

A plea of purchase for a valuable consideration, without notice of the plaintiff's title to a bill to per- petuate the testimony of witnesses, has been allowed, though there are few cases in which the Court will not give that assistance to the furtherance of justice. Thus, to abill to perpetuate the testimony of witnesses

(_y) Harding v. Hardrett, Leech v. Trollop, 2 Vez. 662.

Finch, R. g. As to the case of a dowress

(z) Lord Keeper v. Wyhl, plaintiff, see above p. 274,

1 Vern. 139. note (d ). 1 Ves. jun. 76.

(n) Petre v. Petre, 3 Atk. (b) 2 Atk. 241.

511. 3 Atk. 571. 2 Vez. 450. (c) 2 Vez. 107.

T4

280 PLEAS.

to a will the defendant pleaded purchase for a va- luable consideration, without notice of the will, and the plea was allowed (c). But in this case, as reported, there appears to have been nothing to impede the plaintiff's proceeding at law to assert his title under the will, against the defendant's possession, and there was apparently therefore no equity to support the bill (/).

XI. Though a plaintiff may be fully entitled to the relief he prays, and the defendant may have no claim to the protection of the Court which ought to prevent its interference, yet the defendant may object to the bill if it is deficient to answer the purposes of complete justice. This is usually for want of proper parties ; and if the defect is not apparent on the face of the bill (e) the defendant may plead the matter ne- cessary to show it (y ). A plea of want of parties goes both to discovery and relief where relief is prayed (g), though the want of parties is no objection to a bill for a discovery merely (/*). Where a sufficient reason to excuse the defect is suggested by the bill, as where a personal representative is a necessary party, and the bill states that the representation is in contest

(c) Bechinall v. Arnold, no. Ashurst v. Eyre, 2 Atk.

1 Vern. 354. 51. S. C. 3 Atk. 341.

(d) See also Ross v. Close, &) 2 Atk- 5h in Plunket v. 5 Bro. P. C. 362. Toml. Ed. Penson> wherem this Plea is

2 Ves. jun. 458. termed a Plea ln bar 5 but see

(e) 16 Ves. 325. ° VeS* 594' l6 VeS* 325>

v 7 (h) Sangosa v. E. I. Comp.

(y) Hannev. Stevens,iVern. 2 Eq. Ca. Ab. 170.

PLEAS. 28l

in the ecclesiastical court (i), or where the party is resident out of the jurisdiction of the court (k), and the bill charges that fact, or where a bill seeks a discovery of the necessary parties (I), an objection for want of parties will not be allowed, unless, per- haps, the defendant should controvert the excuse made by the bill by pleading matter to show it false. Thus, in the first instance, if before the filing of the bill the contest in the ecclesiastical court was determined, and administration granted, and the de- fendant showed this by plea, perhaps the objection for want of parties would be in strictness good. Upon arguing a plea of this kind, the Court instead of al- lowing it has given the plaintiff leave to amend the bill upon payment of costs (ni) ; a liberty which he may also obtain after allowance of a plea, according to the common course of the court ; for the suit is not determined by allowance of a plea as it is by allowance of a demurrer to the whole of a bill (n).

Having thus considered all the objections to a bill which have occurred, as extending to relief, and which likewise extend to discovery wherever it is

(i) See 2 Atk. 51, in Plunket the plea was defective in point

v. Penson. of form, in not stating that ad-

(/c) Cotvslad v. Cely, Prec. in ditional parties were necessary,

Cha. 83 5 and see Haddock and naming them, leave was

v. Thomlinson, 2 Sim. & Stu. given to amend the plea.

219, and above, p. 164, note. Merreivcther v. Mellish, i3Ves-

(l) See Bowyer v. Covert, 435. See 11 Ves. 369. 16 Ves.

1 Vcrn. 95. 32$.

(m) Stafford x. City of Low (rt) See below, p. 304. don, 1 P.Wms. 428 ; and where

282 PLEAS.

merely sought for the purpose of obtaining relief, and can have no other end, it remains to treat of such objections as are grounds of plea to discovery only* These are nearly the same as those which have been already mentioned as causes of demurrer to disco- very. They may be, I, That the plaintiff's case is not such as entitles a court of equity to assume a jurisdiction to compel a discovery in his favour; II. That the plaintiff has no interest in the subject, or no interest which entitles him to call on the de- fendant for a discovery ; III. That the defendant has no interest in the subject to entitle the plaintiff to in- stitute a suit against him even for the purpose of discovery only ; IV. That the situation of the de- fendant renders it improper for a court of equity to compel a discovery.

I. If the plaintiff's case is not such as entitles a court of equity to assume a jurisdiction to compel a discovery in his favour, though he falsely states a different case by his bill, so that it is not liable to a demurrer, the defendant may by plea state the matter necessary to show the truth to the court (n).

II. If a plaintiff by his bill states himself to have

(n) But if a plaintiff who is decreeing the payment of the

bankrupt, in a bill filed by him balance to him, it would over-

to obtain discovery in aid of rule a plea of that fact so far

his defence to an action, and as to give him the discovery,

for an account, and an injunc- and even to have the accounts

tion in the mean time, should taken. Lotvndes v. Taylor,

avoid stating his bankruptcy, 1 Madd. R. 423. S. C. 2 Rose,

although this court, it seems, 365. See above, p. 67, note, would not afford him relief by

PLEAS. 283

an interest which entitles him to call on the defendant for a discovery, though in truth he has no such inte- rest, the defendant may by plea protect himself from making the discovery, which may involve him in dif- ficulty and expense, and perhaps may be prejudicial to him in other cases. Thus, if a plaintiff states him- self to be heir or administrator of a person dead in- testate, and in that character seeks a discovery from a person in possession of property which did belong to the deceased, of his title thereto, or of the parti- culars of which it consists, the defendant may plead that another person is heir or personal representative, or that the person alleged to be dead is living (0).

III. It has been already observed, that if a claim of interest is alleged by a bill against a person who has no interest in the subject, he cannot by demurrer protect himself from a discovery, and must resort either to a plea or disclaimer (p) ; by either of which means it should seem he may protect himself from making by answer that discovery which he may pro- perly be required to make if called upon as a witness (y). In some cases however the Court has allowed a de- fendant to protect himself by answer, denying the charge of interest, from answering to matters to which he may be afterwards called upon to answer in the

(o) Orel against Williamson, 1 Vez. 426.

Trin. 1773. Orel v. Huddle- (y) But it does not appear

stone, Dick. 510. And see Gait to be settled that a bankrupt

v. Osbaldeston, 1 Russ. 158. could by plea protect himself

S. C. 5 Madd. 428. from discovery. See 1 Ves. & B.

(/;) Page 188. And see 550.

284 PLEAS.

character of a witness; and perhaps, in justice to those against whom he may afterwards be called upon to give evidence as a witness, he ought not to be pre- viously examined to the same matters upon a bill, under the pretence of an interest which he has not.

IV. The situation of a defendant may render it improper for a court of equity to compel a discovery, 1, because the discovery may subject him to pains and penalties ; 2, because it will subject him to a forfeiture, or something in the nature of a forfeiture ; 3, because it would betray the confidence reposed in him as a counsel, attorney; or arbitrator ; 4, because he is a purchaser for a valuable consideration without notice of the plaintiff's title.

1 . It has been already observed, that no person is bound to answer so as to subject himself to punish- ment, in whatever manner that punishment arises, or whatever is the nature of the punishment (r). If therefore a bill requires an answer which may subject the defendant to any pains and penalties, or tends to accuse him of any crime, and this is not so apparent upon the face of the bill that the defendant can demur, he may by plea set forth by what means he may be liable to punishment, and insist he is not bound to answer the bill, or so much thereof as the plea will cover (V).

Thus to a bill brought for discovery of a marriage,

(r) Page 194. See 2 Vez.	(5) Bird v. Hardwicke,
245. 2 Swanst. 214, 216. Bird	1 Vern. log. Claridge v.
v. Hardwicke, 1 Vern. log.	Hoare, 14 Ves. 59.
11 Yes. 525.

PLEAS. 285

where the fact, if true, would have subjected the "party to punishment in the ecclesiastical court for incest, the defendant pleaded matter to show that the marriage, if real, was incestuous, and would subject the parties to pains and penalties (t). And where a bill was brought against a woman claiming as widow of a person dead, alleging that before her marriage with the deceased she was married to another person, who was living at the time of her marriage with the deceased, the defendant pleaded that marriage to the discovery of the supposed first marriage, and insisted that she was not compellable to answer to the fact of the first marriage, as it would tend to show her guilty of bigamy (it). So to a bill for a discovery whether the defendant had become a pur- chaser of an estate of which the supposed seller was not in possession, the defendant pleaded the statute against selling or contracting for any pretended rights or titles (V). And to a bill brought by insurers for a discovery of what goods had been shipped on board a vessel, the defendant pleaded the statutes which made it penal to export wool. He was, however, directed to answer so far as to discover what goods were on board the vessel besides wool (if). But where the discovery sought was not of a fact which could sub- ject the defendant to any penalty, though connected with another fact which might, as, where the ques- tion was whether the defendant had a legitimate son,

(t) Browisxvord v. Edwards, {x) Sharp v. Carter, 3 P. Wins.

2 Vez. 243. 14 Ves. 65. 375.

(«) 5 Bro. P. C. 102. Toml. (y) Duncalfv. Blake, 1 Atk.

Ed. 52.'

286 PLEAS.

the defendant was compelled to answer. For the discovery of that fact would not subject him to a penalty, though the discovery of his marriage with the mother of the son might, and therefore he was not compelled to discover the marriage (z).

2. It has been also (a) observed, that no person is bound to answer so as to subject himself to any for- feiture, or to any thing in the nature of a forfeiture (b). If this is not apparent on the bill the defence must be made by way of plea. Thus where a bill was brought to discover whether the defendant had as- signed a lease, he pleaded to the discovery a proviso in the lease, making it void in case of assignment (c). And to a bill seeking a discovery whether a person under whom the defendant claimed was a papist, the defendant pleaded his title, and the statute of 1 1 & 12 William III. disabling papists (d). But such a plea will only bar the discovery of the fact which would occasion a forfeiture. Therefore, where a tenant for life pleaded to a bill for discovery whether he was tenant for life or not, that he had made a lease for the life of another, which, if he was tenant for his own life only, might occasion a forfeiture, the plea was over-ruled (e). So upon a bill charging the de-

(z) Finch v. Finch, 2 Vez. (d) Smith v. Read, l Atk.

491- 526. 3 Atk. 457. Jones v.

(a) Page 197. Meredith, Com. R. 661. S. C.

(b) 1 Atk. 527. And see Bunb. 346. Harrison v. South- Parkhurst v. Lowten, 1 Meriv. cote, 528. S. C. 2 Vez. 389.

39 1 • (e) Weaver v. Earl o/Mealh ,

(c) Fane v. Atlee, 1 Eq. Ca. 2 Vez. 108. Ab. 77.

PLEAS. 287

fendant to be tenant for life, and that he had com- mitted waste, it was determined that he might plead to the discovery of the act which would occasion the forfeiture, the waste, but that he could not plead to the discovery whether he was tenant for life or not(/). Upon an information by the Attorney-general on behalf of the Crown, to discover whether the defend- ant was an alien, and whether her child was an alien, and where born, it was held the defendant was bound to discover whether she was herself an alien, the legal disability of an alien not being a penalty or forfeiture; and that she was also bound to discover whether her child was an alien, and where born, as she had a chattel interest in the property in question in trust, eventually, for the Crown, if her child was an alien (g). In all cases of forfeiture, if the plaintiff is entitled alone to the benefit of the forfeiture (h), and waves it by his bill, the defendant will be com- pelled to make the discovery required. And though the plaintiff is not entitled to the benefit of the for- feiture, yet if the defendant has by his own agreement bound himself not to insist on being protected from making the discovery, the Court will compel him to make it (f). In some cases the Legislature has ex- pressly provided that the parties to transactions made

(/) 2 Vez. 109. Bumpstcad, Mosely, 75. S. C.

(g) Att. Gen. v. Duplessis, 1 Eq. Ca. Ab. 77. Parker, 144. S. C. 1 Bro. P. C. (1) Mosely, 77, and the cases

415. Daubigny v. Davallon, there cited. African Comp.

Anstr. 462. v. Parish, 2 Vem. 244.

(h) South Sea Comp. v.

288 PLEAS.

illegal by statute shall be compellable to answer bills in equity for discovery of such transactions ; and in such cases a defendant cannot protect himself from making the discovery thus required by pleading the statute which may subject him to penalties in conse- quence of the discovery (k).

3. If a bill seeks a discovery of a fact from one whose knowledge of the fact was derived from the confidence reposed in him as counsel, attorney, or arbitrator, he may plead in bar of the discovery that his knowledge of the fact was so obtained (/).

4. If a defendant is a purchaser for a valuable con- sideration without notice of the plaintiff's title, a court of equity will not in general compel him to make any discovery which may affect his own title (m). Thus if a bill is filed for discovery of goods purchased of a bank- rupt, the defendant may plead that he purchased them bonajide for a valuable consideration, paid before the commission of bankrupt was sued out, and before he had any notice of the bankruptcy (n).

Pleas have been hitherto considered with reference

(Jc) Bancroft v. Wentuorth, 472. 1 Sch. & Lefr. 2 26.

3 Bro. C. C. 11. See, how- Louden v. Parkhurst, 2 Swanst.

ever, Bullock v. Richardson, 11 194, and Harvey v. Clayton,

Ves. jun. 373. Billing v. Flight, and other cases reported, 2

1 Madd. R. 230. Swanst. 221, note.

(J) Bulstrode v. Lechmore, (m) 2 Ves. jun. 458. And

1 Ca. in Cha. 277. S. C. 2 see above 275, et seq. 3 Atk.

Freem. 5 ; and see Legard v. 302.

Foot, Finch R. 82. Sandford (n) Perrat v. Ballard, 2 Ca. v. Remington, 2 Ves. jun. 189. in Cha. 72. Heyman v. Gomel- Wright v. Mayer, 6 Ves. 280. don, Finch R. 34. Abery v. Richards v. Jackson, 18 Ves. Williams, 1 Vem. 27.

PLEAS. 289

only to original bills, and of these a certiorari bill, from the nature of the proceedings upon it, will not in general admit of a plea (0). But the same grounds of plea will hold in many cases to the several other kinds of bills according to their respective natures ; and some of them, as already observed, admit of a peculiar defence which may be urged by way of plea. Thus if a bill of revivor is brought without sufficient cause to revive the suit against the defendant, and this is not apparent on the bill, the defendant may plead the matter necessary to show that the plaintiff is not entitled to revive the suit against him (/?). Or if the plaintiff is not entitled to revive the suit at all, though a title is stated in the bill, so that the defendant cannot demur, the objection to the plaintiff's title may also be taken by way of plea. Indeed it seems to have been thought that a defendant could only object to revivor by way of plea or demurrer (<y), and there may be great convenience in thus making the objection. For if the defendant objects by answer merely, the point can only be determined by bringing the cause regularly to a hearing ; but if the objection is taken by plea or demurrer, it may in general be immediately

(0) See however, Cook v. Abr. 3. A person made a dc-

Delebcre, 3 Ch. Rep. 66, where fendant by a bill of revivor

a plea to a certiorari bill, of a cannot support, as a defence,

decree in the inferior court, is a plea previously set up by the

mentioned. original defendant, and over-

(p) Harris v. Pollard, 3 P. ruled, Samuda v. Furtado,

Wins. 348. S. C. 2 Eq. Ca. 3 Bro. C. C. 70.

Abr. 2. Huggius v. York (q) Harris v. Pollard, 3 P.

Buildings Comp. 2 Eq, Ca. Wins. 348.

If

29O PLEAS.

determined in a summary way. However, if a de- fendant objects by answer only, or does not object at all, yet if it appears to the court that the plaintiff has no title to revive the suit against the defendant; he can take no benefit from it (r). If a person entitled to revive a suit does not proceed in due time he may be barred by the statute for limitation of actions, which may be pleaded to a bill of revivor afterwards filed (s). If a supplemental bill is brought upon matter which arose before the original bill was filed, and this is not apparent on the bill, the defendant may plead that fact (t). And if a bill is amended by stating a matter arisen subsequent to the filing of the bill, and which consequently ought to have been the subjectof a supplemental bill, advantage maybe taken of the irregularity by way of plea, if it does not suffi- ciently appear on the bill to found a demurrer (11) ; but if the defendant answers he waves the objection to the irregularity, and cannot make it at the hearing (V).

A cross-bill differing in nothing from the first species of bills, with respect to which pleas in general have been considered, except that it is always occasioned by a former bill, it is not liable to any plea which will not hold to the first species of bills. And a cross-

(r) Harris v. Pollard, 3 P. (t) See Lcivellen v. Maclc-

Wms. 348. worth, 2 Atk. 40. Baldxoin v.

(s) Hottingshead's case, 1 P. Mackoivn, 3 Atk. 817.

Wms. 742. And see 2 Sch. (u) See Broivn v. Higden,

& Lefr. 632, cl seq., and the 1 Atk. 291. Jones v. Jones, 3

cases cited, and Earl of Egre- Atk. 2 1 7, and above, p. 48, 49.

wont v. Hamilton, 1 Ball & B. (x) Belchier v. Pearson, at

516. the Rolls, 13th July 1782.

PLEAS.

29I

bill in general is not liable to some pleas which will hold to the first species of bills; as pleas to the juris- diction of the court, and pleas to the person of the plaintiff, the sufficiency of which seem both affirmed by the original bill ; unless the cross-bill is exhibited in the name of some person alone, who is alone in- capable of instituting a suit, as an infant, a feme covert, an idiot, or a lunatic (11).

It has been already mentioned (#) that a part of the constant defence to a bill of review, for error apparent on a decree, has been said to be by a plea of the decree (?/) ; but that a demurrer seemed to be the proper defence, and that the books of practice gave the form of a demurrer only to such a bill (c). Where any matter beyond the decree, as length of time(fl), a purchase for a valuable consideration, or any other matter, is to be offered against opening of the enrolment, that matter must be pleaded (&). And if a demurrer to a bill of review has been allowed, and the order allowing it is enrolled, it is an effectual bar

(u) See above, p. 203, note

to-

(x) Page 203.

(y) Dancer v. Evett, 1 Vern. 392. Carlish v. Gover, Nels. Rep. 52.

(z) And see Needier v. Ken- dall, Finch R. 468.

(a) Gregor v. Molestvorlh, 2 Ves. 109; but see above, p. 205.

(b) Hattivell v. Toivnsend, 2 Bro. P. C. 107. Toml. Ed. ; and see Gorman v. M'Cullock, 5 Bro. P. C. 597. Toml. Ed. As instances in which the error alleged was not in the body of the decree see Cranborne v. Dalmahoy, i Cha. Rep. 231. Smith v. Turner., 1 Vern. 273 ; and see 2 Vez. 488, and Bra- dish v. Gee, Amb. 229.

U 2

2f)2 PLEAS.

to a new bill of review (c) on the same grounds, and may be pleaded accordingly. To a bill of review of a decree for payment of money, it has been objected by plea that according to the rule of the court (cl) the money decreed ought to have been first paid ; but the rule appears to have been dispensed with on security given (e) ; and as the bill of review would not stay process for compelling payment of the money, it may be doubted whether the objection was pro- perly so made. A bill of review, upon the discovery of new matter, seems liable to any plea which would have avoided the effect of that matter if charged in the original bill. It seems to have been doubted whether the fact of the discovery of the matter thus alleged to support a bill of review, can be traversed by plea after the court upon evidence of the fact has given leave to bring the bill, even if the defendant could traverse the fact by positive assertion of some fact which would demonstrate that the matter was within the knowledge of the party, so that he might have had the benefit of it in the original suit. But if the fact of the discovery is in issue in the cause, it ought to be proved, to entitle the plaintiff to demand the judgment of the court on the matter alleged, as ground for reviewing the decree (f) ; and it may con-

(c) Denny v. Filmer, 2 Ca. (d) Orel, in Cha. Ed. Bea. 3.

in Cha. 133. S. C. 1 Vera. (e) Savile v. Darcy, 2 Freem.

135. 1 Vern. 417. Pitt v. 172. S. C. 1 Ca. in Cha. 42.

Earl of Arglass, 1 Vern. 441. (f) See p. 89. JVoots v. Tucker, 2 Vern. 120.

PLEAS. 293

sequently be disproved by evidence on the part of the defendant. Upon a supplemental bill in nature of a bill of review of adecree not signed and enrolled, upon the alleged discovery of new matter, it has been said, that if the defendant can show that the allegation is false, he must do so by plea, and that it is too late to insist upon it by answer (g) ; but as the bill must allege the fact of discovery, and that fact must be the ground of the proceeding, it should seem that it is equally liable to traverse by answer, and by evidence, as any other fact stated in a bill. If a decree is sought to be impeached on the ground of fraud, the proper defence seems to be a plea of the decree, accompanied by a denial of the fraud charged (h).

If a plaintiff filing a bill to carry a decree into execution has no right to the benefit of the decree, the defendant may plead the fact, if it is not so apparent on the bill as to admit of a demurrer. Bills in the nature of bills of revivor or of supplemental

( g) 2 Atk. 40. The accuracy as a bar to the plaintiff's title of this report seems very ques- under the old settlement, which tionable. The supplemental was dated in 1655; the defen- bill was brought on discovery dants claiming under a subse- of an old settlement, found after quent settlement made in 1694, adecree made in 1733. The which had been constantly act- cause came on upon the sup- ed upon by the family. MS. N. plemental bill, and a rehearing S. C. 2 Eq. Ca. Ab. 579. of the decree complained of, (h) Wichalse v. Short, 3 Bro. 7 July 1740. The decree was P. C. 558, Toml. Ed. S. C. affirmed, and the supplemental 7 Vin. Ab. 398, pi. 15. 2 Eq. bill dismissed without costs, Ca. Ab. 177. Loydv. Manse//, principally on the ground, that 2 P. Wms. 73. And see p. 239, length of time, with collateral et seq. circumstances, ought to operate

u 3

2Q4 PLEAS.

bills, are liable to the same pleas as the bills of whose nature they partake.

Having thus considered some of the principal grounds upon which pleas to the several kinds of bills may be supported, it will be proper to observe some particulars with respect to, l, the nature of pleas in general ; 2, their form ; 3, the manner in which they are offered to the court ; and 4, the manner in which their validity is decided.

1 . In pleading there must in general be the same strictness in equity as at law (i) ; at least in matter of substance. A plea in bar must follow the bill, and not evade it, or mistake the subject of it (k). If a plea does not go to the whole bill, it must express to what part of the bill the defendant pleads ; and therefore a plea to such parts of the bill as are not answered must be over-ruled as too general (/). So if the parts of the bill to which the plea extends are not clearly and precisely expressed ; as if the plea is general, with an exception of matters after mentioned, and is accompanied by an answer, the plea is bad. For the court cannot judge what the plea covers, without looking into the answer, and determining whether it is sufficient or not, before the validity of the plea can be considered (m).

It is generally conceived that a plea ought not to

(/) 1 Vern. 114. 2 Atk. 632. (/) Anon. 3 Atk. 70. Broom

13 Ves. 233. v. Horsley, Mosely, 40.

(/»■) Asgillv. Dawson, Ikinb. (m) Salkeldv. Science, 2 Ves.

70. Child v. Gibson, 2 Atk. 107. Howe v. Dtijipa, 1 Ves.

603. &B. 511.

PLEAS. 295

contain more defences than one ; and though a plea may be bad in part and hot in the whole (n), and may accordingly be allowed in part and over-ruled in part, yet there does not appear any case in which two defences offered by a plea have been separated, and one allowed as a bar. Thus if a defendant pleads a fine and non-claim, which is a legal bar, and a pur- chase for a valuable consideration without notice of the plaintiff's claim, which is an equitable bar: if either should appear not to be a bar, as if the de- fendant by answer should admit facts amounting to notice ; or if the plea in respect to either part should be informal ; there seems to be no case in which the court has separated the two matters pleaded, and allowed one as a bar and disallowed the other. And as the end of a plea is to reduce the cause, or the part of it covered by a plea, to a single point (0) ; in order to save expense to the parties, or to protect the defendant from a discovery which he ought not to be compelled to make ; and the court to that end in- stantly decides on the validity of the defence, taking the plea, and the bill so far as it is not contradicted by the plea, to be true : a double plea is generally considered as informal and improper (p). For if two

(») 1 Atk. 53. 451. 539. 153, note, 156-7. 1 Madd. R.

2 Atk. 44. 284. 1 Vez. 205. 194.

Welby v. Duke of Portland, (p) Whitbrcadx.BrocJchurst,

Si Bro. P. C. 39, Toml. Ed. 1 Bro. C. C. 404. S. C. 2 Ves.

1 Jac. It. 46G. & B. 153, note. Nobkissen v.

(0) 1 Atk. 54. 1 Bro. C. C. Hastings, 4 Bro. C. C. 252,

417. 15 Ves. 82. lVes.&B. S. C. 2 Ves. jun. 84. Wood v.

U 4

2p6 PLEAS.

matters of defence may be thus offered, the same reason will justify the making any number of defences in the same way, by which the ends intended by a plea would not be obtained ; and the court would be com- pelled to give instant judgment on a variety of defences, with all their circumstances, as alleged by the plea, before they are made out in proof ; and consequently would decide upon a complicated case which might not exist. This reasoning perhaps does not in its extent apply with equal force to the case of two several bars pleaded as several pleas, though to the same matter ; and it may be said that such pleading is admitted at law, and ought therefore to be equally so in equity. But it should be considered that a plea is not the only mode of defence in equity, and that there- fore there is not the same necessity as at law for ad- mitting this kind of pleading. But though a defence offered by way of plea consist of a great variety of circumstances, yet if they all tend to one point the plea may be good (0). Thus a plea of title deduced from the person under whom the plaintiff claims may

Strickland, '2 Ves. & B. 150. 725. Ashurstw. Eyres, 3 Atk.

3 Madd. 8. 4 Madd. 245. But 341. i5"Ves. 82.377. Leonard it has been determined, that v. Leonard, 1 Ball &B. 323. And where great inconvenience see 2 Blackst. 1028, as to the would result from obedience to distinction between a double this rule, the court on a previous plea, consisting of distinct pro- special application will give to positions, and a single plea con- the defendant leave to plead sisting of one connected propo- double. Gibson v. Whitehead, sition formed from multifarious

4 Madd. 241. circumstances. (0) Cann\. Cann, 1 P.Wms.

PLEAS. 297

be a good pica though consisting of a great variety of circumstances (p) ; for the title is a single point, to which the cause is reduced by the plea (q). It there- fore seems that a plea can be allowed in part only with respect to its extent, the quantity of the bill covered by it ; and that if any part of the defence made by the plea is bad, the whole must be over-ruled (r).

A plea must aver facts to which the plaintiff may reply ($), and not in the nature of a demurrer, rest on facts in the bill (t). The averments ought in general to be positive («). In some cases, indeed, a defendant has been permitted to aver according to the best of his knowledge and belief; as that an account is just and true (#) ; and in all cases of negative averments (y),

(p) Martin & Martin, House (s) 15 Ves. 377. of Lords, 6th March 1 724-5, (t) Bicknell v. Gough, 3 Atk.

and Else v. Doughty, 1 P. 558. 2 Vez. 29G. Roberts v.

Wins. 387, note, Mr. Cox's Ed. Hartley, 1 Bro. C.C. 56. 6 Ves.

Howe v. Duppa, 1 Ves. & B. 5Q4. Billing v. Flight, 1 Madd.

511. Gaitv.Osbaldeston, lRuss. R# 230. steff v. Andrews,

158. S. C. 5 Madd. 428. 2 Madd. R. 6. The prominent

(q) See Doble v. Cridland, distinction between a plea and

2 Bro. C. C. 274. a demurrer (Ord. inCha.26 Ed.

(r) As instances of a plea Bea.) here noticed, is strictly

not being a complete defence true, even of that description of

to the bill, or to so much thereof p}ea which is termed negative

as it purports to cover, ' see (above, p. 230), for it is the

Moore v. Hart, 1 Vern. 110. affirmative of the proposition

Salkeld v. Science, 2 Vez. 107. which is stated in the bill.

Potter v. Davy, 3 Vin. Ab. 135. ^ 3 Atk. 590.

I-Ioarev. Parker, above, p. 277,

r „ . 0t/ „r,n U) 3 Atk. 70. Burgonii v.

note. Jones v.Davis,i6Ves.20<i. } > * J *> j

,,, /;• a r, vM «r Machcll, lotlull, 70.

Chamberlain v. Agar, 2Ves.1V » '

B. 259. Spottisivood v. Stock- {y) See Drew v. Drew, 2 Ves.

dale, Coop, R. 102. Barker & B. 159. v. Ray, 5 Madd. 64.

298 PLEAS.

and of averments of facts not within the immediate knowledge of the defendant (z), it may seem improper to require a positive assertion. Unless, however, the averment is positive, the matter in issue appears to be, not the fact itself, but the defendant's belief of it : and the conscience of the defendant is saved by the nature of the oath administered ; which is, that so much of the plea as relates to his own acts is true, and that so much as relates to the acts of others he believes to be true. All the facts necessary to render the plea a complete equitable bar to the case made by the bill, so far as the plea extends, that the plaintiff may take issue upon it («), must be clearly and distinctly averred. Averments are likewise neces- sary to exclude intendments which would otherwise be made against the pleader ; and the averments must be sufficient to support the plea (£).

If there is any charge in the bill, which is an equi- table circumstance in favour of the plaintiff's case against the matter pleaded ; as fraud, or notice of title ; that charge must be denied by way of answer, as well as by averment in the plea(c). In this case the answer must be full and clear, or it will not be effectual to support the plea (d) ; for the court will intend the

(z) 2 Ves. & B. 162. 2 Sch. & Lefr. 727. 2 Ves. & B.

(a) Gilb. For. Rom. 58. 364. 5 Madd. 330. 6 Madd. 64. 2 Vez. 296 ; and see Carleton 2 Sim. & Stu. 279. And see v. Leighton, 3 Meriv. 667. above, p. 239, et seq. and

(b) 2 Vez, 245. 2 Sch. & p. 256.

Lefr. 727. 18 Ves. 182. (d) 3 Atk. 304. Radford v.

(c) See the judgment in Wilson, 3 Atk. 815. 3 P.Wrris.

Bayleyv. Adams, 6 Ves. 594. 145. 5Bro.P.C.5(h,Tomi.Ed.

PLEAS. 299

matters so charged against the pleader, unless they are fully and clearly denied (e). But if they are in substance fully and clearly denied, it may be sufficient to support the plea, although all the circumstances charged in the bill may not be precisely answered (f). Though the court upon argument of the plea, may hold these charges sufficiently denied by the answer to exclude intendments against the pleader, yet if the plaintiff thinks the answer to any of them is evasive, he may except to the sufficiency of the answer in those points. A defendant may also support his plea by an answer touching any thing not charged by the bill, as notice of a title, or fraud ; for by such an answer nothing is put in issue covered by the plea from being put in issue (g), and the answer can only be used to support or disprove the plea (Ji). Butif a plea is coupled with an answer to any part of the bill covered by the plea, and which consequently the defendant by the plea declines to answer, the plea will upon argument be over-ruled (*).

Where facts appeared upon an answer to an original bill, which would operate to avoid the defence made by plea to an amended bill, the answer to the original bill was read on the argument of the plea, to coun- terplead the plea (A) ; so it should seem if the answer to an original bill would disprove an averment in a

(c) 2 Atk 241. Gilb.Ca.m (g) Gilb. For. Rom. 58, 59.

Eq. 185. As an example, see (/<) See 3 Atk. 303.

Hohy v. Ilony, 1 Sim. & Stu. (i) Cottington v. Fletcher,

568. 2 Atk. 155. Gilb. For. Rom. 58.

(/) 5 lko. P. C. 561, Toml. (Jc) Hg/iardv.Whilc,wChan.

Ed. 15th Marcb 1745.

300 PLEAS.

plea to an amended bill, the court might permit it to be read for that purpose (/).

2. A plea, like a demurrer, is introduced by a pro- testation against the confession of the truth of any matter contained in the bill. For the purpose of de- termining the validity of the plea, the bill, so far as it is not contradicted by the plea (??i), is taken for true ; and the protestation has probably been used to pre- vent the same conclusion for other purposes. The extent of the plea, that is, whether it is intended to cover the whole bill, or a part of it only, and what part in particular, is usually stated in the next place : and this, as before observed (w), must be clearly and distinctly shown. The matter relied upon as an ob- jection to the jurisdiction of the court, to the person of the plaintiff or defendant, or in bar of the suit, ge- nerally follows, accompanied by such averments as are necessary to support it. The plea commonly concludes with a repetition that the matters so of- fered are relied upon as an objection or bar to the suit, or so much of it as the plea extends to ; and prays the judgment of the court, whether the de- fendant ought to be compelled further to answer the bill, or such part as is thus pleaded to. If the plea is accompanied by an answer merely to support it, the answer is stated to be made for that purpose, not waving the plea. If the plea is to part of a bill only, and there is an answer to the rest, it is expressed to

(I) See the case of Hildyard (m) See Plunket v. Pensou, v. Cressy, 3 Atk. 303. 2 Atk. 51. 15 Ves. 377.

(n) Page 294.

PLEAS. 301

be an answer to so much of the bill as is not before pleaded to, and is preceded by the same protestation against waver of the plea.

3. A plea(V) is filed like a demurrer in the proper office; and pleas in bar of matters in pais (a), must be upon oath of the defendant ; but pleas to the jurisdiction of the court, or in disability of the per- son of the plaintifT(yt>), or pleas in bar of any matter of record, or of matters recorded, or as of record in the court itself (//), or any other court (r), need not be upon oath.

4. If the plaintiff conceives a plea to be defective in point of form, or substance, he may take the judg- ment of the court upon its sufficiency. And if the defendant is anxious to have the point determined, he may also take the same proceeding. Upon argu- ment of a plea it may either be allowed simply, or the benefit of it may be saved to the hearing, or it may be ordered to stand for an answer. In the first case the plea is determined to be a full bar to so much of the bill as it covers, if the matter pleaded, with the averments necessary to support it, are 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

(n) A plea must be signed (q) Prac. Reg. 324, Wy. Ed.

by counsel, unless taken by (r) But if a plea of matters

commissioners. Siines v. Smith, recorded be accompanied with

4j\Iadd.36G. See below, p. 3 15, averments of matters in pais, it

as to tbe taking of an answer. must be upon oath. Wall v.

(0) Prac. Reg. 325, Wy. Ed. Stubbs, 2 Ves. & Bea. 354. See

(»Ord.inCh.27.i72. Ed.Bca. above, pp.226, 227, 229.

302 PLEAS.

fact, he may take issue upon it, and proceed to dis- prove the facts upon which it is endeavoured to be supported (s). For if the plea is upon argument held to be good, or the plaintiff admits it to be so by replying to it (7), the truth of the plea is the only subject of question remaining, so far as the plea extends ; and nothing but the matters contained in the plea, as to so much of the bill as the plea covers, is in issue between the parties (u). If therefore issue is thus taken upon the plea, the defendant must prove the facts it suggests (V). If he fails in this proof, so that at the hearing of the cause the plea is held to be no bar, and the plea extends to discovery sought by the bill, the plaintiff is not to lose the benefit of that discovery, but the court will order the defendant to be examined on interrog-ato- ries, to supply the defect (j/). But if the defendant proves the truth of the matter pleaded, the suit, so far as the plea extends, is barred (z), even though the plea is not good either in point of form or sub- stance. Therefore where a defendant pleaded a purchase for a valuable consideration, and omitted to deny notice of the plaintiff's title, and the plaintiff replied, it was determined that the plea, though

0) Prac. Reg. 330, Wy. Ed. (x) Mos. 73. 2 Vez. 247.

if) 1 Vern. 72. Free, in Ch. 0rdv- Huddleston, Dick. 510. r$ (y) Nels. Rep. 119. Astleyv.

Fountaine, Rep. Tem. Finch 4. Ju) 3 P. Wins. 95. Parker v. 2 Vez g Madd ^ 2 ^

Blythmore, Prec. in Chan. 58. & gfcu 27g

See Cooper v. Tragonnel, 1 Ch. {z) See )Vickake v. shorf>

Rep174' 3Bro.P.C558.

PLEAS. 303

irregular, bad been admitted by the replication to be good, and that the fact of notice not being- in issue, the defendant, proving what he had pleaded, was en- titled to have the bill dismissed (//).

If upon argument the benefit of a plea is saved to the hearing, it is considered that so far as appears to the court it may be a defence ; but that there may be matter disclosed in evidence which would avoid it, supposing the matter pleaded to be strictly true ; and the court therefore will not preclude the ques- tion.

When a plea is ordered to stand for an answer, it is merely determined that it contains matter which may be a defence, or part of a defence ; but that it is not a full defence, or it has been informally offered by way of plea, or it has not been properly supported by answer, so that the truth of it is doubtful. For if a plea requires an answer to support it, upon argu- ment of the plea the answer may be read to counter- prove the plea ; and if the defendant appears not to have sufficiently supported his plea by his answer the plea must be over-ruled, or ordered to stand for an answer only(Z>). A plea is usually ordered to stand for an answer, where it states matter which may be a defence to the bill, though perhaps not proper for a plea, or informally pleaded (c). But if a plea states

(a) Harris v. Inglcdevo, 3 v. Hart, 1 Vern. 110. S. C. P. Wms. 94, 95. ibid. 201. Kemp v.

(b) See Hildyard v. Crcssy, Prec. in Cha. 544. Salkeld v. 3 Atk. 304. Science, 2 Vez. 107. Whitbrcad

(c) As examples, see Moore \.Brockhurst, 1 Bro.C. C.404.

304 PLEAS.

nothing which can be a defence it is merely over- ruled. If a plea is ordered to stand for an answer, it is allowed to be a sufficient answer to so much of the bill as it covers (c), unless by the order liberty is given to except (d). But that liberty may be qua- lified, so as to protect the defendant from any parti- cular discovery which he ought not to be compelled to make (e). And if a plea is accompanied by an answer, and is ordered to stand for an answer, with- out liberty to except, the plaintiff may yet except to the answer, as insufficient to the parts of the bill not covered by the plea (/). If a plea accompanied by an answer is allowed, the answer may be read at the hearing of the cause to counterprove the pleafe).

There are some pleas which are pleaded with such circumstances that their truth cannot be disputed ; and others being pleas of matter of fact, the truth of which may be immediately ascertained by mere in-

S. C. 2 Ves. & B. 153, n. Whit- church v. Bevis, 2 Bro.C. C.559. Woodv. Strickland, 2 Ves. & B. 150.

(c) Coke v. Wilcocks, Mos. 73. 3 P. Wms. 240. 3 Atk. 815.

(rf) Sellun v. Leiven, 3 P. Wms. 239. Maitland v. Wil- son, 3 Atk. 814. See Dryden v. Robinson, 2 Sim. & Stu. 529.

(e) See Alardes v. Campbell, Bunb. 265. S. C. 1 Turn. R. 133, note. Herbert v. Montagu,

Finch R. 117. Brereton v. Gamut, 2 Atk. 240. Pusey v. Desbouvrie, 3 P. Wms. 315. King v. Holcombe, 4 Bro. C. C. 439. Bayley v. Adams, 6 Ves.

586.

(J") Coke v. Wilcocks, Mos.

73-

(g) 3 Atk. 304. But the plaintiff may not amend his bill as of course after a plea to part of the bill has been allowed. Taylor v. Shaw, 2 Sim. & Stu. 12.

PLEAS. 305

quiry, it is usually referred to one of the masters of the court to make the inquiry. These pleas, therefore, are not usually argued (It). Thus pleas of outlawry or excommunication, being always pleaded sub sigillo, the truth of the fact pleaded is ascertained by the form of pleading, and the suit is consequently de- layed until the disability shall be removed, unless the plaintiff can show that the plea is defective in form, or that it does not apply to the particular case, and for these purposes he may have the plea argued. Pleas of a former decree (j), or of another suit de- pending (k), are generally referred to a master to in- quire into the fact ; and if the master reports the fact true, the bill stands instantly dismissed, unless the court otherwise orders (/). But the plaintiff may except to the master's report, and bring on the mat- ter to be argued before the court (?w) ; and if he conceives the plea to be defective, in point of form or otherwise, independent of the mere truth of the fact pleaded, he may set down the plea to be argued as in the case of pleas in general (>?).

(k) Ord. in Ch. 175, Ed.Bea. (m) Durrand v. Hutchinson,

(i) Morgan v. Morgan, 1 Mich. 1771, on Exceptions.

Atk. 53. (n) Ord. in Ch. 176, Ed.Bea.

(A) Ord. in Ch. 98. ed. 1739. See Urlin v. , 1 Vern. 332.

(I) See Crofts v. Worthy, and Foster v. Vassal!, 3 Atk.

l Ca. in Cha. 241. See above, 587. pp. 237. 246.

CHAP.

( 306 )

CHAPTER II.

SECTION II.

PART III.

Of Answers and Disclaimers ; and of Demurrers, Pleas, Answers and Disclaimers, or any two or more of them, jointly.

1 F a plea is over-ruled the defendant may insist on the same matter by way of answer (a). And what- ever part of the bill is not covered by demurrer, or plea, must be defended by answer (b), unless the de- fendant disclaims. In treating of answers and dis- claimers will be considered, l, The general nature of answers ; 2, Their form ; 3, The manner in which their sufficiency is decided upon, and deficiency supplied ; and 4, The nature and form of dis- claimers.

1 . It has been already (c) mentioned, that every plaintiff is entitled to a discovery from the defendant of the matters charged in the bill (d), provided they are

(a) 2 Ves. 492. Earl of is entitled to put in a separate Suffolk v. Green, 1 Atk. 450. answer, although they should 1 Cox R. 228. have but Qne common defence.

(b) Prac. Reg. Wy. Ed. rr „ .

, i _, Van Saudau v. Moore, 1 Russ.

(c) Page 9.

{d) Where the defendants R- 44*. on appeal. See S. C. are numerous, each, it seenas, 2 Sim. & Stu. 509.

ANSWERS. 307

necessary to ascertain facts material to the merits of his case, and to enable him to obtain a decree. The plaintiff may require this discovery, either because he cannot prove the facts, or in aid of proof, and to avoid expense (e). He is also entitled to a discovery of matters necessary to substantiate the proceedings, and make them regular and effectual in a court of equity (f). However, if the discovery sought by a bill is matter of scandal, or will subject the defendant to any pain, penalty, or forfeiture, he is not bound to make it (g) ; and if he does not think proper to defend himself from the discovery by demurrer or plea, ac- cording to the circumstances of the case, he has been permitted by answer to insist that he is not obliged to make the discovery (h). In this case the plaintiff

(e) 2 Atk. 241. 15 Ves. 378. 1 Ball & B. 325.

(y) 2 Ves. 492. 6 Ves. And see Lord Ranclijfe v. Par-

37> 38, Coop. R. 214. kyns, 6 Dow P. C. 230, but see

(<r) 15 Ves. 378; and see Oveyv. Leighton, 2 Sim.& Stu.

authorities cited above, p. 193. 234). It seems that in every

(Jt) 3 P. Wms. 238. Finch other case, even in that of a mere

v. Finch, 2 Ves. 491. Honey- witness being made a defend-

tvood v. Selivin, 3 Atk. 276. ant, (see Coohon v. Ellison, 2

Paxtonv. Douglas, igVes.225. Bro. C. C. 252, Cartivright v.

Parkhurst v. Lowten, 1 Meriv. Hately, 3 Bro. C.C. 238, Shcp-

391. 1 Swanst. 192. 305. It herd v. Roberts, 3 Bro. C. C.

has also been held, that a pur- 239, 7 Ves. 288, 11 Ves. 42,

chaser for a valuable consider- but see Newman v. Godfrey,

ation, without notice, may by 2 Bro. C. C 332), unless per-

answer protect himself from haps he be a professional per-

making discovery of facts which son, and the discovery be sought

might defeat his enjoyment. of matters confidentially com-

(Jerrard v. Sanders, 2 Ves. jun. municated to him, {Stratford v.

454. S. C. 4 Bro. C. C. 322. Hogan, 2 Ball & B. 1G4.) if

X 2

308 ANSWERS.

may except to the defendant's answer as insufficient % and upon that exception it will be determined whether the defendant is or is not obliged to make the disco- very (i). 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 (k) ; or if it is doubtful whether as a plea it will hold ; the defendant may set forth the whole by way of answer, and pray the same benefit of so much as goes in bar, as if it had been pleaded to the bill (/). Or if the defendant can offer a matter of plea which would be a complete bar, but has no occasion to protect himself from any discovery sought by the bill, and can offer circum- stances which he conceives to be favourable to his case, and which he could not offer together with a plea, he may set forth the whole matter in the same

a person answers at all, he may taken below, pp. 310, 31 1,312,

be required to answer all the between the cases in which the

facts stated in the bill, from defendant by answer denies the

which he does not distinctly title of the plaintiff, in respect

protect himself from answering of which the disco very is sought,

by either of the other modes of and those in which he thereby

defence. See D older v. Lord denies the validity of the ground

Huntingjield, 11 Ves. 283, in upon which that title is alleged

which the earlier cases are by the plaintiff to be founded,

cited, Faulder v. Stuart, 11 And see below, p. 316, note (q). Ves. 296, Shaw v.a Ching, 11 (-} g Veg ^ ^. &nd ^

Ves. 303, Rome v. Teed, 15 , Ves> . ^ note< Ves. 372, SomerviUe v. Mac- hay, 16 Ves. 382, Leonard v. (*) Chapman v. Turner, 1

Leonard, 1 Ball & B. 323, 3 &■&■- 54-

Madd. 70, v. Harrison, (7) See Norton v. Turvill?

4 Madd. 252 & 1 Sim. & Stu.6. 2 P. Wms. 144. See, however, the distinction

ANSWERS. 3O9

manner. Thus, if a purchaser for a valuable consi- deration, clear of all charges of fraud or notice, can offer additional circumstances in his favour, which he cannot set forth by way of plea, or of answer to sup- port 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 circumstance attending his title. For a defence which, if insisted on by plea, would protect the defendant from a discovery, will not in general do so if offered by way of answer (/). To so much of the bill as it is necessary and material for the defendant to answer (?)i) he must speak directly, and without evasion, and must not merely answer the several charges literally, but he must confess or tra- verse the substance of each charge (;z). And wherever there are particular precise charges (0) they must be answered particularly and precisely, and not in a gene- ral manner, though the general answer may amount

(I) 2 Eq. Ca. Ab. 67. Bea. Hind v. Dods, Barnard,

Richardson v. Mitchell. Sel. 258. S. C. 2 Eq. Ca. Ab. 69.

Ca. in Ch. 51. Above, p. 307, Deane v. Rastron, Anstr. 64.

note (//). 2 Ves. & B. 1C2. And see

(in) It seems, a mere trus- Hall v. Bodily, 1 Vern. 470. tee, incumbrancer, or heir, need (0) These, however, it seems,

answer so much only of the bill to the end mentioned in the

as applies to him. Coop. R. text, must be specially interro-

2 1 5. And further, with respect gated to. See King v. Marissal,

to materiality of answer, see 3 Atk. 1 92, Durant v. Durantt

below, 316, note (q). 1 Cox R. 58.

(») Ord. in Ch. 28. 179. Ed.

x 3

310 ANSWERS.

to a full denial of the charges (p). Thus where a bill required a general account, and at the same time called upon the defendant to set forth whether he had received particular sums of money specified in the bill, with many circumstances respecting the times when, and of whom, and on what accounts such sums had been received, it was determined, that setting forth a general account by way of schedule to the answer, and referring to it as containing a full account of all sums of money received by the de- fendant, was not sufficient, and the plaintiff having excepted to the answer on this ground, the exception was allowed ; the Court being of opinion that the de- fendant was bound to answer specifically to the spe- cific charges in the bill, and that it was not sufficient for him to say generally, that he had in the schedule set forth an account of all sums received by him (g).

Although the defendant by his answer denies the title of the plaintiff, yet in many cases he must make a discovery prayed by the bill, though not material to the plaintiff's title, and though the plaintiff, if he has no title, can have no benefit from the discovery. As if a bill is filed for tithes, praying a discovery of the quantity of land in the defendant's possession, and of the value of the tithes, though the defendant insists upon a modus, or upon an exemption from payment

(p) 2 Eq. Ca. Ab. 67. Pax- And see Amhurst v. King,

ton's case, Sei. Ca. in Ch. 53. 2 Sim- & Stu. 183.

Front v. Undenvood, 2 Cox R. (q) Hepburn v Durand,

n ,r ' 20th Nov. 1770, in Chan. S. C.

135. 6 Ves. 792. Wharton v. rep> , Brf) c c ^ . but see

Wharton, 1 Sim. & Stu. 235. White v. Williams, 8 Ves. J93.

ANSWERS. 311

of tithes, or absolutely denies the plaintiff's title (r), he must yet answer to the quantity of land and value of the tithes (s). Or if a bill is filed against an executor by a creditor of the testator, the executor must admit assets, or set forth an account, though he denies the debt (£).

But where the defendant sets up a title in him- self, apparently good, and which the plaintiff" must remove to found his own title, the defendant is not generally compelled to make any discovery not ma- terial to the trial of the question of title. Thus, where a testator devised his real estate to his nephew for life, with remainder to his first and other sons in tail, with reversion to his right heirs, and made his nephew executor and residuary legatee of his will, and on the death of the nephew his son entered as tenant in tail under the will ; upon a bill filed by the heir at law of the testator, insisting that the son was illegitimate, that the limitations in the will were therefore spent, and the plaintiff became entitled, as heir to the real estate, and praying an account of the personal estate, and application in discharge of debts and encumbrances on the real estate, the defendants against whom the account was sought insisted on the title of the son as tenant in tail under the will, and that they were not bound to discover the personal estate until the plaintiff had established his title. Ex-

(r) See, however, Gilb. Ca. (/) Randal v. Head, Hardr. in Cha. 229. 188. See Sweet v. Young,

(s) Langham v. , Hardr. Ambl. 353. 1 1 Ves. 304.

130-

X 4

312 ANSWERS.

ceptions having been taken to the answer, and allowed by the Master, on exception to his report, the excep- tions to the answer were over-ruled ; the Court distin- guishing this case, which showed a prima facie title in the defendant, the son of the nephew, from a mere denial of the plaintiff's title (2^).

So when a bill claimed the tithe of rabbits on an alleged custom, and the defendant denied the cus- tom, it was determined that the defendant was not bound to set forth an account of the rabbits alleged to be tithable (x) ; and a like determination was made upon a claim of wharfage, against common right, the title not having been established at law (y).

But where a discovery is in any degree connected with the title, it should seem that a defendant cannot protect himself by answer from making the discovery ; and in the case of an account required, wholly inde- pendent of the title, the Court has declined laying down any general rule (z), deciding ordinarily upon the circumstances of the particular case. Thus, to a bill stating a partnership, and seeking an account of transactions of the alleged partnership, the defendant by his answer denied the partnership, and declined setting forth the account required, insisting that the plaintiff was only his servant ; and the Court, con-

(u) Gethin v. Gale, 29 Oct. 0) Randal v. Head, Hardr.

1739, in Chan. M. R. Ambl. 188. S. C. 1 Eq. Ca. Ab. 35.

354, cited in Sweet v. Young. (y) Northleigh v. Luscomber

See also Gunn v. Prior, cited Ambl. G12.

11 Ves. jun. 291. S. C. Dick. (z) Hallv. Noyes, Ld. Chan.

(357. 1 Cox R. 197. 13 March 1792.

ANSWERS. 315

ceiving the account sought not to be material to the title, over-ruled exceptions to the answer, for not setting forth the account (a). And where a plea has been ordered to stand for an answer, with liberty to except to it as an insufficient answer, the Court has sometimes limited the power of excepting, so as to protect the defendant from setting forth accounts not material to the plaintiff's title, where that title has been very doubtful (b).

If an answer goes out of the bill to state some matter not material to the defendant's case, it will be deemed impertinent, and the matter, upon appli- cation to the court, will be expunged (c). So in an answer, as in a bill, if any thing scandalous is in- serted the scandal will be expunged by order of the Court (d). But, as in a bill, nothing relevant will be deemed scandalous (e).

2. An answer usually begins by a reservation to

{a) Jacobs v. Goodman, in (c) Alsager v. Johnson, 4

Exch. 16 Nov. 1791. S. C. rep. Ves. 217. Norway v. Roxve,

3 Bro. C. C. 487, note; and 1 Meriv. 347. French v.

2 Cox R. 282. See Hall v. Jacko, ibid. 357, note. Beau- Noyes, 3 Bro. C.C. 483. Mar- mont v. Beaumont, 5 Madd. 51. quis of Donnegal v. Stewart, Parker v. Fairlie, 1 Sim. &

3 Ves. 446. Phclips v. Cancy, Stu. 295. 2 Sim. & Stu. 193.

4 Ves. 107. 11 Ves. 42. 293. (d) Peck v, Peck, Mosely, 45. Webster v. Threlfall, 2 Sim. & Smith v. Reynolds, Mosely, C9

Stu. 1 90 ; but see v. liar- Ord. in Cba. 25. Ed. Bea.

rison, 4 Madd. 252. Corbctt v. Tottenham, 1 Ball.

(6) Earl of Strafford v. & Bea. Cl. Barnes v. Saxby,

Blakcxvay, 6 Bro. P. C. 630. 3 Swanst. 232, n. Toml. Ed. King v. Holcombe, (e) Mosely, 70. 1 Ball & B.

4 Bro. C C. 439. Bayley v. 61 ; and see Lord St. John v.

Adams, G Ves. 586. Lady St. John, u Ves. 52G.

314 ANSWERS.

the defendant of all advantage which may be taken by exception to the bill, a form which has probably been intended to prevent a conclusion that the defen-: dant, having submitted to answer the bill, admitted every thing which by his answer he did not expressly controvert, and especially such matters as he might have objected to by demurrer or plea. The answers to the several matters contained in the bill, together with such additional matter as may be necessary for the defendant to show to the court, either to qualify or add to the case made by the bill, or to state a new case on his own behalf, next follow, with a general denial of that combination which is usually charged in a bill(/). It is the universal practice to add by way of conclusion a general traverse or denial of all the matters in the bill. This is said (g) to have obtained when the practice was for the defendant merely to set forth his case, without answering every clause in the bill. Though, perhaps, rather imper- tinent if the bill is otherwise fully answered, and it has been determined to be in that case unnecessary (/?,), it is still continued in practice. In the case of an infant the answer is expressed to be made by his guardian (i) ; and the general saving at the beginning, together with the denial of combination, and the tra- verse at the conclusion, common to all other answers, are omitted. For an infant is entitled to the benefit of every exception which can be taken to a bill,

{/) See above, p. 40. (h) 2 P. Wras. 87.

{g) 2 P. Wms. 87. (i) See above, p. 103.

ANSWERS. 315

without expressly making it; he is considered as in- capable of the combination charged in the bill ; and his answer cannot be excepted to for insufficiency (h). The answer of an idiot or lunatic is expressed to be made by his committee as his guardian, or by the person appointed his guardian by the Court to defend the suit (i). An answer must be signed by counsel (&), unless taken by commissioners in the country under the authority of a commission issued for the purpose ; in which case the signature by counsel is not re- quired (/), the commissioners being responsible for the propriety of its contents, as it is supposed to be taken by them from the mouth of the defendant, which in fact was formerly done (pi).

3. If a plaintiff conceives an answer to be insuf- ficient to the charges contained in the bill 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 respects put in a full answer to the bill (w). These exceptions must be signed by counsel (0), and are then delivered to the proper officer, which must be done within a limited time,

(h) Copeland v. Wheeler, 4 (I) 3 Atk. 440.

Bro. C.C.256. Lucas v.Lucas, (in) See Brotvn v. Bruce,

1.3VCS. 274. 1 Ball & Bea. 553. 2 Meriv. 1.

It has been determined also, («) See Marsh v. Hunter, 3

that the answer of the attorney Madd. 437, and the cases there

general cannot be excepted to. referred to, in note. Hodgson

Davison v. Attorney-General, v. Butierfield, 2 Sim.&Stu.236.

Exchequer, 30 June 1813. (0) Candler v. Partington,

(i) See above, p. 103. C Madd. 102. Yates v. Hardij,

(k), 2 Vcs. & B. 358. 1 Jac. It. 223.

3l6 ANSWERS.

according to the course of the court (o), though upon application further time is allowed for the purpose, within certain restrictions (p). If the defendant conceives his answer to be sufficient, or for any other reason does not submit to answer the matters con- tained in the exceptions, one of the Masters of the court is directed to look into the bill, the answer and the exceptions, and to certify whether the answer is sufficient in the points excepted to or not(^). If the Master reports the answer insuf- ficient in any of the points excepted to, the defendant must answer again to those parts of the bill in which the Master conceives the answer to be insufficient; un- less by excepting to the Master's report he brings the matter before the court, and there obtains a different judgment (7*). But if the defendant has insisted on any matter as a reason for not answering, though he does not except to the Master's report, yet he is not absolutely precluded from insisting on the same

(0) 3 Atk. 19. Thomas v. not answered, see Agar v. Re-

Lleivellyn, 6 Ves. 823. gent's Canal Comp. Coop. R,

, , _.. 212, Hirst v. Pierce, 4 Pri.

dp) Anon. 3 Atk. 19. 14 Ves. Ex R> ^ y> ^.^

536. Baring v. Prinsep, 1 ^ J_ ^ & R ^ Am_

' ** ' hurst v. King, 2 Sim. & Stu.

(q) Ord. in Cha. 53. Ed. 183.

Bea. Partridge v. Haycraft, (r) Anon. 3 Atk. 235. Horn-

11 Ves. 570. 11 Ves. 577. by v. Pemberton, Mos. 57.

1 Ves. & B. 333. As to the Worthington v. Foxhall, 3

right of the Masters to exercise Barnard. 261 . Finch v. Finch,

a discretion with regard to the 3 Vez. 491. 11 Ves. 577. materiality of interrogatories

ANSWERS. 317

matter in a second answer (*), and taking the opinion of the Court whether he ought to be compelled to answer further to that point or not (/).

Where a defendant pleads or demurs to any part of the discovery sought by a bill, and answers like- wise, if the plaintiff takes exceptions to the answer before the plea or demurrer has been argued, he ad- mits the plea (u) or demurrer (>) to be good ; for unless he admits it to be good it is impossible to determine whether the answer is sufficient or not. But if the plea or demurrer is only to the relief prayed by the bill, and not to any part of the dis- covery, the plaintiff may take exceptions to the answer before the plea or demurrer is argued (j/). If a plea or demurrer is accompanied by an answer to any part of the bill, even a denial of combination merely, and the plea or demurrer is over-ruled, the plaintiff must except to the answer as insufficient (0). But if a plea or demurrer is filed without any answer, and is over-ruled, the plaintiff need not take excep- tions, and the defendant must answer the whole bill as if no defence had been made to it (#).

(s) Finch v. Finch, 2 Vez. (x) See Boyd v. Mills, 13

491. See Ovey v. Lcighton, Ves. 85.

2 Sim. & Stu. 236. ^ 3 p Wms< 327< Note s

(0 As to the practice in case See however 2 Atk. 390. the defendant should put in

successively as many as four (z) ^oies v* Turner, Bunb.

insufficient answers, see Far- 123-

quharson v. Balfour, l Turn. (aHbid. As to the practice with

Jt. 184. reference to the obtaining of

(u) See Darnell v. Rcijny, time to answer in such a case see

1 Vern. 344. Trim v. Baker, 1 Sim. & Stu-

3*8 ANSWERS.

A further answer is in every respect similar to, and indeed is considered as forming part of, the first an- swer. So an answer to an amended bill is considered as part of the answer to the original bill (b). There- fore if the defendant in a further answer, or an answer to an amended bill, repeats any thing con- tained in a former answer (c), the repetition, unless it varies the defence in point of substance, or is otherwise necessary or expedient, will be considered as impertinent (d) ; and if upon reference to a Master such parts of the answer are reported to be imper- tinent, they will be struck out as such, with costs, which in strictness are to be paid by the counsel who signed the answer (e).

4. A defendant may disclaim all right or title to the matter in demand by the plaintiff's bill, or by any part of it(/). But a disclaimer cannot often be put in alone. For if the defendant has been made a party by mistake, having at the time no interest in the matter in question, yet as he may have had an interest which he may have parted with, the plaintiff may require an answer sufficient

469, S. C. on appeal, 1 Turn. (e) Smith v. Serle, 14 Ves.

R. 253, in accordance with 415. Jones v. Saxby, mentioned 1 u\ g A_tk. 30*3.

Swanst. 194, note (a), and over- ruling Griffith v. Wood, 1 Ves. ^ 0rd< in Cha- lC7- Ed.

& Bea. 541. Bea- l6 Ves. 234.

(5) 3 Atk. 303. Dick. 583. (/) SeeArchboMv.BorroId,

Spurrier v. Fitzgerald, 6 Ves. Cary R. C9. Seton v. Slade,

548 ; and see Ovey v. Leighton, 7 Ves. 265. 2 Sim. & Stu. 234.

ANSWERS. 3I9

to ascertain whether that is the fact or not ; and, if the defendant has had an interest which he has parted with, an answer may be also necessary to enable the plaintiff to make the proper party, in- stead of the defendant disclaiming. The form of a disclaimer alone seems to be simply an assertion that the defendant disclaims all right and title to the matter in demand, and in some instances, from the nature of the case, this may perhaps be sufficient ; but the forms given in the books of practice are all of an answer and disclaimer.

If the defendant disclaims, the Court will in gene- ral dismiss the bill as against him with costs. But it has been said, that if the plaintiff shows a probable cause for exhibiting the bill, he may pray a decree against the defendant, upon the ground of the dis- claimer (Ji). Where the defendant disclaims the plaintiff ought not to reply (i).

A defendant may demur to one part of a bill, plead to another, answer to another, and disclaim as to another. But all these defences must clearly refer to separate and distinct parts of the bill. For the defendant cannot plead to that part to which he has already demurred ; neither can he answer to any part to which he has either demurred or pleaded (Ji) ; the demurrer demanding the judgment of the Court whether he shall make any answer, and the plea whether he shall make any other answer than what

(h) Prac. Reg. 175. Wy. Ed. (k) 2 Bro. Pari. Ca. 20,

(i) Prac. Reg. 176. Wy. Ed. 21. 3 Atk.582.

320 ANSWERS.

is contained in the plea. Nor can the defendant by answer claim what by disclaimer he has declared he has no right to(7). A plea(w) or answer (w) will therefore over-rule a demurrer, and an answer (o) a plea ; and if a disclaimer and answer are incon- sistent, the matter will be taken most strongly against the defendant upon the disclaimer.

(I) See the case of Seton v. Slade, 7 Ves. 265.

(m) Dormer v. Fortescue,

1 Atk. 282. 3 P. Wms. 80, 81. Arnold's case, Gilb. For. Rom.

59-

(n) Abraham v. Dodgson,

2 Atk. 157. 3 P. Wms. 81. Sheruiood v. Clack, 9 Pri. Ex. R. 259.

(0) Pierce v. Johns, Bunb. 11. Cottington v. Fletcher, 2 Atk. 155; 3 P. Wms. 81. Dobbyn v. Barker, 5 Bro. P. C. 573, Toml. Ed. EarlqfClan- rickard v. Bourke, 6 Bro. P. C. 4. Tom. Ed.; 1 Sim. & Stu. 6, Watkins v. Stone, 2 Sim.& Stu. 560.

CHAP.

( 321 )

CHAPTER THE THIRD.

Of REPLICATIONS and their CONSEQUENCES.

A Replication is the plaintiff's answer or reply, to the defendant's plea or answer. Formerly, if the de- fendant by his plea or answer offered new matter the plaintiffreplied specially (a) ; otherwise the replication was merely a general denial of the truth of the plea or answer, and of the sufficiency of the matter alleged in it to bar the plaintiff's suit, and an assertion of the truth and sufficiency of the bill. The conse- quence of a special replication was a rejoinder, by which the defendant asserted the truth and sufficiency of his answer, and traversed every material part of the replication (Ji). If the parties were not then at issue by reason of some new matter disclosed in the rejoinder which required answer, the plaintiff might surrejoin to the rejoinder, and the defendant might in like manner ad-surrejoin, or rebut, to the surrejoin- der (c). The inconvenience, delay, and unnecessary

(a) Ord. in Cha. 70, Ed. Bea. (c) West. Symb. Cha. 195. a. (5) 2 West. Sym.Chan. 195. Prac. Reg. 371. Wy. Ed. a. 232. b. 246. b.

Y

322 REPLICATIONS.

length of pleading, arising from these various allega- tions on each side (d), occasioned an alteration in the practice. Special replications, with all their conse- quences, are now out of use (e), and the plaintiff is to be relieved according to the form of the bill, what- ever new matters may have been introduced by the defendant's plea or answer (f). But if the plaintiff conceives, from any matter offered by the defendant's plea or answer, that his bill is not properly adapted to « his case, he may obtain leave (g) to amend the bill (h), and suit it to his case, as he shall be advised (i). To this amended bill the defendant may make such

(d) See Ord. in Cha. 70, Pitt v. Watts, 16 Ves. 126. Ed. Bea. Covodell v. Tatlock, 3 Ves. & B.

(e) Prac. Reg. 372. Wy. Ed. 19. Lord Kilcourcy v. Ley, 4 Indeed if a plaintiff is disposed Madd. 212.

to controvert a part of a case (i) As to the extent to which

made by the defendant's answer, this liberty may be carried, see

and to admit the rest, he may 2 Sch. & Lefr. g. Seeley v.

still put in a replication so far Boehm, 2 Madd. R. 176. Maz-

special, that it is confined to zaredov.Maitland, 3 Madd. 66.

the particular matter contro- As to the consequence of mak-

verted, instead of being a ge- ing an entirely new case by the

neral denial of the truth of the amendment, see Muvor v. Dry,

whole answer ; and then the 2 Sim. & Stu. 113. And as to

defendant is put only to proof the adding or striking out a

of the matter replied to. prayer for relief, see Butter-

(f) Prac. Reg. 372. Wy. worth v. Bailey, 15 Ves. 358. Ed. Earl of Cholmondeley v. Lord

(g) See 1 Ves. jun. 448. Clinton, 2 Ves. & B. 113. But (h) And this will be per- it may be observed that the

mitted after replication ; and plaintiff may not amend his

leave will be granted to the bill after plea to part thereof

plaintiff to withdraw the repli- has been allowed, without leave

cation and amend the bill. See of the Court. Taylor v. Shaiv,

Pott v. Reynolds, 3 Atk. 565, 2 Sim. & Stu. 12.

REPLICATIONS. 323

defence as he shall think proper, whether required by the plaintiff to answer it or not (k).

According to the present course of the court, al- though rejoinders are disused, yet the plaintiff, after replication, must serve upon the defendant a subpoena requiring- him to appear to rejoin, unless he will appear gratis (/). The effect of this process is merely to put the cause completely at issue between the parties. For now, immediately after the defendant has ap- peared to rejoin gratis, or after the return of a sub- poena to rejoin served on the defendant, and which, by order obtained of course is now usually made returnable immediately, and served on the defendant's clerk in court, the parties may proceed to the exami- nation of witnesses to support the facts alleged by the pleadings on each side (?n). Where by mistake a replication has not been filed, and yet witnesses have been examined, the Court has permitted the replication to be filed nunc pro tunc (it).

(k) The original bill is ren- dered nugatory by amendment, 3 Madd. 429 ; and if the altera- tion be so considerable as, ac- cording to the practice of the court, to make it necessary that a new ingrossment should be filed as of record, counsel's signature must be affixed there- to. Kirkleij v. Burton, 5 Madd. 378. Webster v. Threlfall, 1 Sim. & Stu. 135. Pitt v. Macklexv, 1 Sim. & Stu. 13G. n.

(/) Anon. Mos. 123. 296- Flower v. Herbert, Dick. 349.

(in) Mosely, 296. Prac Reg. 371. Wy. Ed. It may be no- ticed that leave will in some instances be given to withdraw a rejoinder and rejoin de novo. See Berks v. Wigan, 1 Ves. & B. 221. Briclcwood v. Miller, 1 Meriv. 4.

(n) Rodney v. Hare, Mosely, 29G.

CHAP.

Y 2

( 324 )

CHAPTER THE FOURTH.

Of INCIDENTS to PLEADINGS in GENERAL.

IN the preceding chapters have been considered the nature of the pleadings used in the equitable jurisdic- tion of the court of chancery, and the manner in which they are brought to a termination. Before the pro- ceedings arrive at that point the Court will frequently permit the pleadings filed to be altered, as the purposes of parties may require («), except in the case of answers put in upon oath, in which the Court, for obvious reasons, will not easily suffer any change to be made (Z>).

(a) As to the amendment of not as formerly, (see 3 Barn, bills, see above, pp. 55. 322 ; 51, 2 Eq. Ca. Ab. 60, Whar- of demurrers, Glegg v. Legh, ton v. Wharton, 2 Atk. 294, 4 Madd. 208, Thorpe v. Ma- Dagly v. Crump, Dick. 35, caulay, 5 Madd. 218, and Bedford v. Wharton, Dick. 84, above, p. 214; and of pleas, Patterson v. Slaughter, Ambl. Dobson v. Leadbeater, 1 3 Ves. 292 ; and cases cited, 1 Ves. & 230. Merretvether v. Mellish, B. 150, note (a), 10 Ves. 285, 13 Ves. 435. Wood v. Strick- 401,) give leave to amend the land, 2 Ves. & B. 150. Thomp- answer itself, except in the son v. Wild, 5 Madd. 82. case of an infant defendant,

(b) A special application is (Savage v. Carroll, 1 Ball & B. necessary for the purpose, 548,) and except in eases of 4 Madd. 27, and the Court will mere clerical error, (Griffiths v.

INCIDENTS TO PLEADINGS. 325

After the examination of witnesses (c) no part of the pleadings can be altered or added to, but under very special circumstances, or in consequence of some sub- sequent event, except, that if the plaintiff at any time discovers that he has not made proper parties to his bill, he may obtain leave to amend his bill for the special purpose of adding the necessary parties (d) ; and leave has also been given to amend the prayer under par-

Wood, 11 Ves. 62, Peacock v. Duke of Bedford, 1 Ves. & B. 186, White v. Godbold,

1 Madd. R. 269, Fair cloth v. Webb, 5 Madd. 73, but see Ridley v. Obee, Wightw. 32,) but, upon its conscience being satisfied that the defendant ought not to be concluded by the answer as upon record, (10 Ves. 401, 4 Madd. 27, and see Tennant v. Wilsmore,

2 Anstr. 362,) if the matter already brought forward be ambiguously stated, and it ap- pear that the defendant meant to swear to it in the sense which he seeks upon his appli- cation to put upon it, (Livesey v. Wilson, 1 Ves. & B. 149,) or if it be desired to introduce new matter, and it appear that the defendant, at the time of putting in the original answer, was not aware thereof, [Wells v. Wood, 10 Ves. 401,) it will permit a supplemental answer to be filed, [Jennings v. Merlon College, 8 Ves. 79, 10 Ves.

285, 19 Ves. 584, Curling v. Marquis Tovmshend, 19 Ves. 628, Strange v. Collins, 2 Ves. & B. 1C3, Edivards v. M'Leay, 2 Ves. & B. 256, 4 Madd. 407,) as a mode by which justice may be more surely administered, 19 Ves. 631.

(c) As to bills, see Wright v. Hotvard, 6 Madd. 106, and above, p. 55. Where no witness has been examined, an amend- ment has been permitted after publication passed. Hastings v. Gregory, in the Excheq. 19th Nov. 1782. 1 Fowl. Ex- cheq. Pr. 127. Sanderson v. Thxvaites, in Chan. Trim 1782. With respect to answers see Chute v. Lady Dacres, 2 Freem. 172. Mullins v. Simmonds, Bunb. 18G. Kino-scote v. Bains- by, Dick. 485. Tennant v. Wilsmore, Anstr. 362.

(d) Anon. 2 Atk. 15. Good- Voin v. Goodivin, 3 Atk. 370. 1 Prax. Aim. Cur. Cane. 54G. See above, pp. 55. 322.

y 3

326 INCIDENTS TO PLEADINGS.

ticular circumstances (e). If any event happens which alters the interest of any party, or gives any new interest to any person not a party, the plaintiff may file a supplemental bill, or bill of revivor, as the oc- casion may require. And if the plaintiff thinks some discovery from the defendant, which he has not ob- tained, is necessary to support his case, he may file a supplemental bill to obtain that discovery (/). He may also file a supplemental bill to put in issue any matter necessary to his case when he cannot obtain permission to alter his original bill by amendment; but he cannot upon such a supplemental bill exa- mine witnesses to any matter in issue by the original

bin (g).

If upon hearing the cause the plaintiff appears entitled to relief, but the case made by the bill is in- sufficient to ground a complete decree, the Court will sometimes give the plaintiff leave to file a supple- mental bill, to bring the necessary matter, in addition to the case made by the original bill, before the court (h). If the addition of parties only is wanted (2), an order is usually made for the cause to stand over, with liberty to amend the bill by adding the proper parties ; and in some cases where a matter has not been put in issue by a bill with sufficient precision, the Court has, upon hearing the cause, given the

(e) Cookv. Martin, 2 Atk. 2. twin, 3 Atk. 371. Usborne v. Harding v. Cox, 3 Atk. 583. Baker, 2 Madd. R. 379.

Palk v. Lord Clinton, 1 2 Ves. (g) Bagenal v. Bagenal,

jun. 48. 6 Bro. P. C. 81. Toml. Ed.

(f) Boeve v. SJciptvith, 2 Ch. (A) 3 Atk. 133.

Rep. 142. Goodwin v. Good- (i) See above, pp. 55. 322.

INCIDENTS TO PLEADINGS. 327

plaintiff liberty to amend the bill for the purpose of making the necessary alteration (k).

The Court considering infants as particularly un- der its protection will not permit an infant plaintiff to be injured by the manner in which his bill has been framed. Therefore, where a bill filed on behalf of an infant submitted to pay off a mortgage, and upon hearing the cause the Court was of opinion that the infant was not bound to pay the mortgage, it was ordered that the bill should be amended by striking out the submission (/). And where a matter has not been put by the bill properly in issue, to the prejudice of the infant, the Court has generally or- dered the bill to be amended (m).

A like indulgence has been granted to a defendant when upon hearing a cause it has appeared that he has not put in issue by his answer facts which he ought to have put in issue, and which must necessarily be in issue to enable the court to determine the merits of the case, the defendant being permitted to amend his an- swer by stating those facts. This has formerly been done in the Exchequer, where a modus had been setup as a defence to a bill for tithes ; and it appeared from the evidence in the cause that there was probably a good ground for opposing the plaintiff's claim, though the defendant had mistaken it, and the Court per-

{k) FilJcin v. Hill, 4 Bro. P.C. (I) 1 P. Wms. 428.

C40. Toml. Ed. As to practice (m) See p. 27. Napier v.

in case of neglect to amend Lady Effingham, 2 P. Wms.

within a reasonable time, see 401.403. And see Bcnnetv.

Cox v. Allingham, 3 Madd. Lee, 2 Atk. 529.

393-

Y 4

328 INCIDENTS TO PLEADINGS.

mitted him to amend his answer (n) ; but this has been refused in other cases. Where an answer has been prejudicial to a defendant from a mere mistake ; upon evidence of the mistake an amendment has been permitted (0). This indulgence has been ex- tended, after much consideration, beyond mere mis- take, where by the answer an important fact was imperfectly put in issue, and no witness had been examined, the cause being heard on bill and an- swer (/?). In general, however, this indulgence is confined to mere mistake or surprise (0). A dis- tinction has also been made between the admission of a fact, and the admission of a consequence in law or in equity (r). Where a defendant after putting in an answer discovered a ground of defence to the bill of which he was not before informed, a pur- chase by the person under whom he claimed without notice of the plaintiff's title, which could only be used by way of defence, and could not be the ground of a bill of review, the Court allowed the answer to

(n) Phillips v. Gtvynne, Ex- On appeal to the Chancellor

chequer, Easter, 1779. See the order was affirmed, 19th

also Filkin v. Hill, 4 Bro. P. C. March 1735. MS. N. Countess

640. Toml. Ed. 2 Anstr. 443. of Gainsborough v. Gifford,

(0) Countess of Gainsborough (since reported 2 P.Wms. 424,)

v. Gifford, 2 P. Wms. 424. cited as determined on several

(p) Powell v. Hill, in Chan, precedents. But see Sorrell v.

The cause came first before the Carpenter, 2 P. Wms. 482.

Master of the Rolls, who made (q) 2 Bro. C. C. 619. See

an order, giving liberty to the Chute v. Lady Dacres, 2 Freem.

plaintiff to amend the bill, and 173.

to the defendant to amend the (r) See Pearce v. Grove,

answer, to which the plaintiff 3 Atk. 522, and S. C. Ambl.

might reply and go to issue. 65, but very differently stated.

INCIDENTS TO PLEADINGS. 32$

be taken off the file, and the new matter to be added, and the answer re-sworn (s). Where a fact which may be of advantage to a defendant has happened subsequent to his answer, it cannot with propriety be put in issue by amending his answer. If this appears to the court on the hearing, the proper way seems to be to order the cause to stand over till a new bill in which the fact can be put in issue be brought to a hearing with the original suit (t) ; and a bill for this purpose seems to be in the nature of a plea puis darrein continuance at the common law.

Sometimes, upon hearing of a cause, it has ap- peared that a matter properly in issue, or at least stated in the proceedings, has not been proved against parties who have admitted it by their answers, al- though not competent so to do for the purpose of enabling the Court to pronounce a decree. In these cases the Court has permitted the proper steps to be taken to obtain the necessary proof ; and for this pur- pose has suffered interrogatories to be exhibited («) ; and where the plaintiff has neglected to file a necessary replication has allowed him to supply the defect (x). Thus, where a bill was filed on behalf of creditors, for satisfaction out of real and personal estates devised

(s) Patterson v. Slaughter, see 3 P. Wms. 289. Smith v.

Ambl. 29-2. As to amending an Allhus, 11 Ves. 564. Willan

ansvver,and filing a supplemental v. Willan, 19 Ves. 590. S. C.

answer instead of amending and Coop. R. 291. Sxvinford v.

reswearing the original answer, Home, 5 Madd. 379. Moons

see above, p. 324, note, (b). v. De Bernales, 1 Russ. R. 301.

(t) Haync v. Hayne, 3 Ch. Abrams v. Winshrip, 1 Russ. R.

Rep. 19. 526-

(u) See 2 P. Wms. 463 ; and (x) See above, p. 323.

S30 INCIDENTS TO PLEADINGS.

to trustees for that purpose, and, subject to that charge, in strict settlement, and the answers of the tenant for life, and of the first remainder-man in tail, who was an infant, were not replied to, the Court, on hearing, directed that the plaintiff should be at liberty to reply to those answers, and exhibit in- terrogatories, and prove their debts against those defendants, as they had before proved them against the trustees; and reserved the consideration of the directions necessary to be given upon such new proof (u).

In most of these cases the indulgence given by the Court is allowed to the mistakes of parties, and with a view to save expense. But when injury may arise to others the indulgence has been more rarely granted ; and so far as the pendency of a suit can affect either the parties to it, or strangers, matter brought into a bill by amendment will not have relation to the time of filing the original bill, but the suit will so far be considered as pendent only from the time of the amendment (.r), except that where a bill seeks a discovery from a defendant, and having obtained that discovery, the bill is amended by stating the result, it should seem that the suit may, according to circumstances, be considered as pendent from the filing of the original bill, at least as to that defendant, and perhaps to the other par- ties, if any, and to strangers also, so far as the original bill may have stated matter which might

(«) Lambert v. Ashcroft, at (x) 2 Atk. 218.

the Rolls, 18th Feb. 1779.

INCIDENTS TO PLEADINGS. 331

include in general terms the subject of the amend- ment.

Though in general, with respect to the original parties, and their interests, no amendment will be permitted after the cause is at issue, and witnesses have been examined, and publication passed (j/) ; yet a plaintiff has been permitted under such cir- cumstances, to amend his bill by adding a prayer omitted by mistake (2). Even upon the hearing, as already noticed (a), the Court having the whole case before it, and being embarrassed in its decision by defects in the pleadings, has permitted amendments both of bills (Z>) and answers (c), under very special cir- cumstances. Where new matter has been discovered by either plaintiff or defendant before a decree has been pronounced deciding on the rights of the par- ties, a supplemental or cross-bill has been permitted, to brino- such matter before the court to answer the purposes of justice, instead of allowing an amend-

(y) Anon. Barn. 222.2 Anstr. here it may be remarked, that

362. And see above, p. 325, an amendment of the bill will

and note. It may be observed, be permitted after a demurrer

that in such a case the plaintiff or a plea has been filed, but

must generally apply to the generally not, after it has been

Court for liberty to withdraw set down to be argued. Anon.

his replication, as well as to Mos. 301. Vernon v. Cue, Dick,

amend his bill. 1 Atk. 51. 358. 1 Ves. jun. 448. Carleton

Motteux v. Mackreth, 1 Ves. v. VEstrange, 1 Turn. R. 23.

jun. 142. 1 Turn. R. 24. See (b) See above, p. 55, note (m),

above, cases cited, p. 55, note, 326, 327.

and pp. 322, 323, notes (i) & (k). (c) See Countess of Gains-

(z) Harding v. Cox, 3 Atk. borough v. Giffbrdy 2 P. Wms.

583. 424- ! Cox R. 159, See

(rt) Pp. 32C, 327. 329. And above, p. 327.

332 INCIDENTS TO PLEADINGS.

ment of a bill or answer, where the nature of the matter discovered would admit of its being so brought before the court ; and after a decree, upon a similar discovery, a bill of review, or a bill in nature of a bill of review, has been allowed for the same pur- pose, both those forms of proceeding being in their nature similar to amendments of bills or answers, calculated for the same purposes, and generally ad- mitted under similar restrictions. It may how- ever happen that by the mistake, or negligence, or ignorance of parties, their rights may be so preju- diced by their pleadings that the Court cannot per- mit important matter to be put in issue by any new proceeding without so much hazard of inconve- nience, that it may be better that the individual should suffer an injury than that the administration of justice should be endangered by allowing such proceeding.

INDEX.

INDEX.

PAGE.

Abatement - - - - 56. 60. 69. 100

by what circumstances occasioned - 56, et seq.

how suit restored ----- 60

see Death. Marriage.

ACCIDENT - - - 113.123.127,128.130

ACCOUNT 119,120.123

may be limited to the time of filing the bill - 274 stated, see Plea.

where there is error or fraud in, 259, notes. 263, note see Answer.

ACKNOWLEDGMENT

with reference to the statute of limitations, 271,

and notes

ADDRESS, see Bill.

ADMINISTRATION

limited to subject of suit - 177 and note, 178

ADMINISTRATOR, see Plea negative.

AFFIDAVIT, see De bene esse. Delivery. Discovery of Deeds or Writings. Execution. Interpleader. Per- petuation of Testimony. Relief upon Deeds or Wrili?igs. Review, Bill of. Supplemental Bill in nature of Bill of.

INDEX. AGENT, PAGE.

principal, in many cases, has a right to discovery

from 159

privity between his vendee and principal - ib.

notice to, is notice to principal - 278 see Interpleader.

AGREEMENT

specific performance of - - 118 and note, 119 by parol, effect of part performance - - 266

as to confession of, in answer to bill for

specific performance - 267 to refer to arbitration, see Plea. not specifically performed, 264

ALIEN, see Discovery. Persons. Plea.

ALIENATION, pendente lite,

effect of, where compulsory - - 64, et sea.

where voluntary - 73, et seq. and notes

ALLEGATION,

as to frame and sufficiency of - 41, 42 and notes see Demurrer.

AMENDMENT of pleadings generally - 17, 18

see Answer. Bill. Demurrer. Infant. Plea.

ANSWER - - _ _ 14,15.102.100.306

principal end of requiring - . - - 44 general nature of - ~0g

fo"nof, 306.3.3

where the proper mode of defence - _ o08

must not be evasive, but must meet substance of each charge _

must be particular to particular charges 309, 310 manner in which sufficiency of determined, and defi- ciency supplied - 006

INDEX.

ANSWER— continued. page.

as to materiality of - 3°9

may be referred for scandal or impertinence, 313. 318 where it must be signed by counsel - - 315

of a quaker ; of a moravian ; or of an infidel, as a jew

or a mahometan - - - - 10, note

of a trustee, incumbrancer, or heir - 309, note

of an infant _._,.-- 314

of an idiot or lunatic - 315

of a feme covert, see Married Woman. of attorney general - 315 and note

overrules demurrer - - - - - 320

plea 299. 320

where defendant may thereby protect himself from

making full discovery - - 307 and note

discovery enforced by, if connected with plaintiff's

title 312

although plaintiff's title de_

nied 310»311>312

not enforced by, if ground of plaintiff's

title be denied - - - - -312 ______ if counter title be set

up 311

as to discovery independent of plaintiff's title being compelled - - - - - -312

where defendant sets up modus; denies plaintiff's

claim without admitting assets ; denies custom ;

or denies partnership and privity ; and declines to

set forth account - 310,311,312

amendment of, allowed, when - 324 note. 325 note.

327, 328, 329

at hearing - 327. 331

supplemental - 324, note

in support of plea, see Plea, and see - 239, et seq.

244 and note, 245. 298

INDEX.

ANSWER — continued. page.

in support of plea, may be excepted to - - 299 accompanying plea or demurrer, if the latter defence be overruled, must be excepted to - - 317 read to counterplead plea - 299. 304

after plea or demurrer overruled - - 16. 306 further to original bill - - - - 18.318

insisting on same matter as first, after excep- tions thereto allowed - - 316, 31 7 note to amended bill - 318. 322 as to right of each defendant to file separately,

306, not objecting to bill of revivor - 289, 290

as to such mode of defence to a bill of review 293 and disclaimer - - - - - -319

see Agreement. Combination. Defendant. De- murrer. Exceptions. Infant. Interrogatories. Plea. Statute of Frauds. Time. Trust.

APPEAL, see Remainder.

APPEARANCE

to original bill --_--_ ^r to bill of revivor ----__ jj

ARBITRATOR, see Agreement. Demurrer. Plea.

ASSETS ------- 125.136

see Answer.

ASSIGNMENT without license, see Demurrer to Dis- covery.

ASSIGNOR, see Parties.

ASSIGNEE

of party to a decree, bill by - - - 95

see Demurrer.

ATTAINDER, see Persons. Plea.

INDEX.

ATTORNEY, see Plea to Discovery.

ATTORNEY-GENERAL, 22&note. 99. 102. 169 & note, see Answer. Crown. Defendant. Parties.

AVERMENTS, see Bill.

AVERMENTS IN PLEA

necessary - - 297

object of------- 298

must be sufficient to support it ib.

should in general be positive - 297

may be negative ------ 298

instances, 265 and note. 269. 277 note.

293 see Plea.

AWARD, see Plea.

B

BANKRUPT,

bill by, not stating his bankruptcy - 282, note

as to discovery by - 283, note

how to act where his assignees refuse to institute or

to prosecute a suit - - - 67, note

see Defendant. Demurrer. Plaintiff. Plea.

BANKRUPTCY

does not abate a suit, but merely renders it defective,

65 note, 66 & note, 67 note, 68 Sc note

commission how to be disputed - - 66, note

BARGAIN AND SALE

without enrolment - - - - -116

BILL IN CHANCERY

what proper object of ----- 8 what generally sought by - - - - 9 by whom it may be exhibited, see Persons. Plaintiff.

2 1 et seq. z

INDEX.

BILL — continued. page. against whom it may be exhibited, see Defendant, Persons, and - - - - - 30 et seq.

must be signed by counsel - - - - 48

whence arises variety of - - - .' 17

the several kinds and distinctions of - 21. 109

the frame and end of the several kinds of -21

original 33-37

not original - - - - - - 33-55

in nature of original - - - 33

original, form of - - - - - - 42

- - - - usually consists of nine parts - - 42

1. Address - 42. 7

2. Names and descriptions of plaintiffs, 42

and note

3. Stating part - - - - 37. 41. 43

4. Allegation of confederacy and combina-

tion - - - - - 40, 41. 43

5. Charging part - 43. 47

6. Averment as to defect of remedy elsewhere,

43.44

7. Interrogating part - - 44, 45. 47

8. Prayer for relief, and discovery - 44, 45

9. Prayer for process - 37, 38. 45, 46 original, praying relief - 34. 37 - - - - not praying relief - 34. 51 praying general decree - - - - 34-37 of interpleader, see Interpleader, and 34. 37. 48. 141 praying writ of certiorari, see Certiorari, and 9. 34,

37-50 to perpetuate testimony, see Perpetuation, Plea, and

34. 51. 148

for discovery, see Costs, Deeds, Discovery and 34.

53- H8 of supplement, see Decree, Demurrer, Supplement, and

18. 34.61.64. 75. 326

INDEX.

BILL — continued. page.

of revivor, see Costs, Creditors, Decree, Demurrer,

Revivor, and - 35. 69. 76. 326

of revivor and supplement, see Demurrer, Hearing, and

35. 70. 80 cross, see Cross-bill, Hearing, and - - 35. 80

of review, see Answer, Demurrer, Hearing, Plea,

Review, and - 35. 80. 83

in nature of bill of review, see Demurrer, Hearing,

Review, and - - - - - 35. 80, 92

to impeach a decree on the ground of fraud, see

Decree, Plea and - - 35. 80. 92, 93, 94

to suspend the operation of a decree - 35. 80. 94

to carry a decree into execution, see Demurrer, Plea,

and - - - - - - - 35. 80. 95

in nature of bill of revivor, see Distinction, and 36. 71.

80.97 _ _ _ - — supplement, see Distinction, Sup- plement, and 36. 65. 72. 80. 98 supplemental in nature of bill of revivor - - 68 _ __ ___ ___ _ review, see Supple- mental, and ----- _go

amendment of, generally, 55 &, note. 207. 290. 324,

325 & note

• as to prayer - - 322 note. 331

. as to parties - - - 325, 326

as to extent to which liberty may be

carried - 322. 325 &, note

effect in relation to original bill 322,

323, note

after plea or demurrer filed 331, note

upon hearing of demurrer, 215 & note

after allowance of demurrer for want

of parties - - - - 181

after allowance of plea to part thereof,

not of course - - 322, note z 2

INDEX.

BILL— continued. page.

amendment of, after liberty to make given at hearing

326,327.331 _ neglect of, prac- tice on - - - 327> note

, where counsel's signature required to

323, note see Assignee. Customs. De bene esse. Decree. Delivery. Examination. Execution. New Trial. Persons. Quia timet.

BONDS

lost 113

BOUNDARIES,

obliterated - - 117

C.

CANCELLATION OF INSTRUMENTS, 128, 129 note

CERTIORARI,

proceedings upon a bill praying writ of - 50

see Bill. Defence. Plea.

CESTUI QUE TRUSTS, see Parties.

CHAMPERTY, see Demurrer to discovery.

CHANCERY, see Bill. Jurisdiction.

CHANCELLOR 7

CHATTELS, SPECIFIC,

detention of- - - - - - _117

CHARITY,

suit on behalf of ------7

indulgence of Court upon - 39

see Information. Petition.

CHOSE IN ACTION, see Parties.

INDEX.

COMBINATION, page.

charge of, answer to- - - - - 41 as to denial of, by answer, upon a demurrer for mul- tifariousness - - - - 181 & note

after usual order for time

209 Sc note, 210

COMMISSIONERS, LORDS - - - 7 & note

COMMITTEES

of idiots or lunatics ----- 29 defend suits brought against them - - 30. 103 see Parties.

COMMON LAW. see Courts. CONTRACTS, see Agreements. CONVEYANCE, see Plea.

COPYHOLD,

as to restraining waste by tenant of - - 139

COPYRIGHT,

as to restraining infringement of - 138. 147

there must be a separate bill against each invader

182, note

CORPORATIONS,

suits by ------ 24 & note

defence of suits by - - - - - 1 03

aggregate, see Defendant.

COSTS,

where awarded against next friend of infant - 26, 27

note

where infant on attaining age becomes liable to, 26 &

note

where awarded against next friend of married woman

28, note

against relator - 23. 29 note. 100

z 3

INDEX.

COSTS — continued. page.

where bill of revivor for, allowed - 202

on bill of discovery - 201 & note see Impertinence. Scandal.

COUNCIL, see Discovery.

CONFIDENCE, see Plea to Discovery.

COUNSEL, as to signature of, see Answer. Bill. Demurrer. Exceptions. Plea. bill by, to recover fees, demurrer to allowed - 157 as to discovery sought from, see Plea to Discovery. as to costs by, see Impertinence. Scandal.

COURTS OF COMMON LAW,

limited character of jurisdiction ... 3 of Equity supply defect in administration of justice

by the courts of common law	4
of inferior jurisdiction -	- 151
CREDITORS,
suit by or on behalf of -	- 166. 171
revivor in a suit on behalf of creditors	- 79 & note
decree in such a suit - " .-	- 166
cross-bill by creditor -	83, note

of a deceased person, have no privity with the debtors to his estate ______ i^g

see Plea.

CRIMINAL PROSECUTIONS

not relieved against - - - - - 1 33

CROSS BILL,

frame of ------- 81

considered as a defence, admitting jurisdiction 81, 82 where now dispensed with, although formerly neces- sary 81, note

in chancery to original bill in the exchequer 80, note see Bill. Creditors. Demurrer. Plea.

INDEX;

CROWN, PAGE.

suits on behalf of - - - - - 7.211

where the attorney-general to be made a defendant on behalf of - 30.102.172

remedy on behalf of, in cases of nuisance and tres- pass ------ 145. 147

see Suits.

CUSTOM OR RIGHT,

bill to establish 1 45> etseq.

see Answer.

D.

DEATH

of party, where abatement caused by - *fl>etstq.

DE BENE ESSE,

bill for examination of witnesses - 52 & note. 150 proceedings upon such a bill, 49 & notes. 50 note. 60 affidavit in support of - - - - - i5° see Demurrer.

DEBTOR, see Creditor. Interpleader.

DECREE

as to review, reversal and alteration of

83, et seq. & notes as to correction of formal error in - - 90, note obtained by fraud ------ 92

bill to set aside, see Bill.

- frame of bill for that

purpose ----- 94 when altered on rehearing, and when on bill of re- view 237.239

instance in which extended upon original bill

97, note

z 4

INDEX.

DECREE — continued. page.

against person having a prior estate of inheritance ; as

to its binding those in remainder - 173, 174

bill of revivor subsequently to 69, 70

see Assignee. Bill. Creditor. Demurrer. Infant.

Plea. Statute of Limitatio7is. Supplement.

DEEDS

rectified, or effect of controlled - - - 129 see Cancellation. Delivery. Deeds. Discovery. Execution. Plea. DEFECT IN SUIT,

by what circumstances occasioned, 56, etseq. 67 note. 68 how supplied ------ 60. 68

DEFENCE TO A BILL - - - - 10. 102 with regard to the jurisdiction of the court, and

the rights and interests of the parties - 11. 102 on what it may be founded with reference to the

bill 13

forms of ------ ib.

may be different to different parts of the bill, 13. 107 none required to a bill of certiorari - - 16

DEFENDANT,

how change of interest in relation to, affects a suit,

57, et seq. effect of his death or bankruptcy on suit, 57, etseq. 68

& note, peculiarity in prayer, where a peer or peeress, or lord of parliament, or the attorney-general, is - 38

in what manner a commoner, a peer, or lord of parlia- ment, or a corporation aggregate, to answer, 10 how and to what extent, required to answer - 44, 45 see Committees. Corporations. Idiots. Infants. Interrogatories. Jurisdiction. King. Lunatics. Married Women. Queen.

INDEX.

DELIVERY, page,

of deeds and writings - - - - 128

bill seeking such relief only need not be accompanied by affidavit - - - - - -124

DEMURRER ----- 13. 102. 106

causes and purposes of - - - 108

effect of - - - - - - - 14. 107

is upon matter apparent on bill - - 208

truth of matters properly charged by bill admitted

thereby - 211 & note, 212

form of ------- 210.212

must express the several causes of - - 213

must define to what it extends - 214 & note

in relation to substance or frame of bill - 206

on ground of defective allegations in bill - 125. 163 must be signed by counsel - 208

where put in without oath - ib.

is overruled by answer or by plea - - 209. 211 course of practice upon - _ - - 14.215 what is decided upon - - - 108 note. 154 effect of allowing ----- 14

overrulins; ----- 16

may in some instances be allowed in part - 214

effect of allowing, on matter of form, and on the

merits, with regard to a new bill - - 216

not generally permitted after demurrer overruled,

214 note. 217 & note

upon overruling, leave in some instances given, to put

in another less extended - - - 214. note

ore tenus - - - - - - 217

division of the subject of demurrers - - 109

for want of equity ----- 123. 163

to the jurisdiction - - 111, et seq. 123. 125. 222 on ground that another court has the proper jurisdic- tion ----- 125. 151, et seq.

INDEX.

DEMURRER— continued. PAGE.

by one under personal disability, as an infant, a

married woman, an idiot, or a lunatic - 153

for want of proper title in plaintiff - 155 & note. 233

on ground that plaintiff's title is in litigation 157

for want of privity between plaintiff and defendant,

see Creditor, and see - - - 159, 160. note

for want of interest in the defendant - 235

case 0f arbitrator 1 60

— — assignee without

title ----.__ !QU ^3

bankrupt, 161,162

. jjejr not ajigggd to

be bound ---___ 163

witness 188

for want of parties, see Parties - - 180

for multifariousness, see Combination, and see, 181

& note

to bill for part of a matter only to avoid multiplicity

of suits ---___ 180

to a bill of interpleader - 141,142

to perpetuate testimony - - 148. 156

to examine witnesses de bene esse - 1 50

to discovery, causes of - - - - 185

for want of jurisdiction - ib.

interest in plaintiff, 185. 187

defendant, 185.

188

_ . privity between plaintiff and

defendant - - - - - - 185. 189

materiality in the discovery,

185. 191, 192, 193 on ground that discovery might sub- ject defendant to penalties, as in respect of usury, maintenance, champerty, simony, 193, 194, 195

INDEX.

DEMURRER— continued. pack, to discovery, on ground that it might subject de- fendant to forfeiture of interest,

as upon assignment of lease, without lease, &c. - 193. 197

to something in nature

of forfeiture, as in regard to profession of popery : exception in regard to acts of trading by one de- clared bankrupt - - - - - 198

— ----------- ---to punishment, as

upon a criminal prosecution - - - 194

__ to consequences of a

supposed crime, as in respect of forged deeds, 196

— __ --to imputation of moral

turpitude ------ ib.

to discovery, effect of waver by plaintiff of penalty or forfeiture, and of agreement to make discovery, in preventing demurrer - 195. 197

on ground that defendant has in conscience

a right equal to that claimed by plaintiff, as in case of a purchaser for a valuable consideration with- out notice, or jointress - 199

— for want of parties, for want of equity, or

because a bill brought for discovery of part of a

matter will not hold, although it seems a demurrer

for multifariousness would lie 200

to bill of supplement - 202

— on ground that the bill might

have been amended, or that the new matter is im- material - 202, & note. 207 to bill of revivor ----- 201.289 to bill of revivor and supplement - - 206 to cross-bill ------ 203

for want of equity, or to the jurisdiction,

will not lie - ib.

INDEX.

DEMURRER— continued. page.

to a bill of review - - 203, 204, & note. 291

— against opening the enrolment ac- companying plea of decree - 203

„ on ground of lapse of time 204

to a bill in nature of bill of review - - 205

to a supplemental bill in nature of a bill of review, ib. to bill to carry a decree into execution - 206

to amended bill, on ground that the new matter has arisen subsequently to the filing of the original bill -'-----_ 207

to relief, where it extends to discovery, 1 83, 1 84, & note to discovery, and not to relief, consequence thereof,

183 note, 184 to relief, giving the discovery - - 185, note

may fail as to relief, yet protect from the discovery

184, 185 amendment of - - - - - 324, note see Answer. Bill, Counsel. Distinction. Plea. Time.

DEVISEE, see Parties.
DISCLAIMER - - 14. 102. 10G.	283. 306.318
form of -	319
effect of	16.319
no replication should be filed to	- 319
as to decree upon -	- ib.
where inconsistent with answer	- 3*9, 320
see Answer.
DISCOVERY -----	8,9.12. 148
bill for. see Bill.
objects of	- 53
form of -	53, 54
- - - - no proceedings upon, after	a sufficient
answer -	- 16

INDEX.

DISCOVERY— continued. page.

of deeds and writings, bill for - - - - 54

- affidavit in support of

unnecessary - - - - - 54. 124

right to, and grounds of - - 9. 306, 307

when and when not enforced, see Demurrer, and

185, et seq. of matter of scandal not enforced - 307

in aid of the jurisdiction of this and of other courts,

185, &note.

_ ___- of the King in council, 225

of defendant's title, not enforced - 189, 190, 191 whether of alienage enforced - - 196,197.287 defence in respect of, although not of relief, 107. 110. as to necessity of disclosing that an agreement or a trust was by parol, with reference to the Statute of Frauds ------ 267, 268

as to necessity of disclosing the time when the plain- tiffs right existed, with reference to the Statute of Limitations - - - - - 269, et seq.

see Answer. Bankrupt. Costs. Demurrer. Plea. Witness.

DISMISSION

of bill, decree or order of, pleaded - - - 238

DISTINCTION

between demurrer and plea - 297 8c note.

as to consequences, between an original bill, in the

nature of a bill of revivor, and an original bill in

' the nature of a supplemental bill - - - 72

DISTRESS

defeated by accident - - - - - 1 1 7

DOWER - - 120, et seq.

DOWRESS

plaintiff, favour shown to 275, note.

INDEX.

E.

ECCLESIASTICAL COURT - 250, note. 254, note'. ELECTION,

application that plaintiff may elect to proceed either

at law or in equity ----- 250

course of practice upon election being made, 250, and

note

ENGLISH BILL 8

EQUITY

distinguished from positive law 3

want of. see Demurrer.

see Courts. Demurrer. Plea. Remedies.

EXAMINATION OF WITNESSES - - - 323

abroad, bill for - - - - - - 149

EJECTMENT,

instances of relief afforded upon - - 136. 144 EXCEPTIONS

to answer ______ 308. 315

form and practice upon - - 315, 316

accompanying demurrer, or plea, where they

constitute admission of validity of the latter, and where not _ _ - - - -317

must be signed by counsel - - 315

of infant or attorney-general not allowed

315 & note

reference of to a master - - -316

to master's report ______ 316

upon a plea referred - - 305

see Master.

EXCHEQUER AND EXCHEQUER CHAMBER,

Courts of -_--__ 6, note EXCOMMUNICATION, see Persons, Plea.

INDEX.

EXECUTION page. of another deed upon discovery of contents of one cancelled, bill for - - - - - 124 — — affidavit not required to be an- nexed thereto ------ ib.

F. FEME COVERTE, see Married woman, Persons.

FEOFFMENT

without livery of seisin - - - - - 116

FINE, see Plea.

effect of in various instances of legal and of equit- able title ------- 251

FOREIGN COURT - 248 note, 255

FORFEITURE, see Demurrer to discovery, Discovery, Plea to discovery, Waste.

FORGERY, see Demurrer to discovery.

FRAUD, see Bill to impeach decree. Decree - 127, et seq. negatived by averments in plea and answer, see Plea.

FRAUDS, Statute of, see Statute.

G.

GUARDIAN

ad litem for an infant - - - - 103

_ — idiot or lunatic - - - 104

- a person imbecile in mind - - ib.

H.

HEARING,

relief not generally given at, if demurrer would have

held --- 108

leave given at to file a cross-bill, 82, 83. 331

- - a bill of review - 332

INDEX.

HEARING— continued. page.

leave given at to file a bill in nature of bill of review,

332 ____a bill of supplement,

326. 331 see Amendment. Infant. Interrogatories.

HEIR, see Answer. Demurrer. Parties. Plea. HUSBAND, see Parties.

I.

IDIOTS AND LUNATICS,

suit on behalf of- - - - - - 7

by whom instituted 29

defence on behalf of, to suit - - - - 103

see Answer. Committees. Demurrer. Informa- tion. Persons. Plea.

IMBECILITY, see Plaintiff.

IMMATERIALITY, see Demurrer.

IMPERTINENCE

in bill - 48

in answer ------ 313.318.

costs, in strictness to be paid by the counsel, 48. 318

INCUMBRANCER, see Answer.

INFANT

suit on behalf of - - - - - -25

by whom exhibited - - ib.

where stayed - - 27, 28

defence on behalf of, to a suit - - - 103 his consent to institution of suit on his behalf un- necessary --_ ---28 indulgence granted to in suits on behalf of, 27.

39 note. 55 note

I N D E X.

INFANT — continued. page.

indulgence granted to by allowing amendment at

hearing ------- 327

._ _ where decree improperly af- fects ----- 93- 96 note

see Ansioer. Costs. Demurrer. Next friend. Persoiis. Plea. Suits.

INFORMATION - - - 7. 21. 238c notes. 99

on behalf of idiots and lunatics 29

charities - - - - 100, note

frame of - - - - - - -100

and bill - - - - - 23 & note. 99

frame of- - - - - -100

INHERITANCE, see Decree. Parties.

INJUNCTION ----- 46. 134,6* *?y. see the various subjects in this index upon which interposition by, may be required.

INSOLVENCY, see Defendant. Plaintiff. Plea.

INSTRUMENTS lost, see Bonds, and - - 123,124

destroyed or suppressed - - - - 113,114

see Cancellation. Deeds. Delivery. Execution.

INTERPLEADER,

form of bill of 49. 142

bill of by agent - - - - - 143, note

debtor ------ ib.

tenant - - - 142 & note. 143, note

as to affidavit and payment of money into court, and injunction in case of - 49, & notes. 50 note. 143 see Bill. Demurrer. Plea.

INTERROGATORIES

in bill must, in order that answer to them may be en- forced, be founded on particular charges, 309, note

A A

INDEX.

INTERROGATORIES--™,^™^, page.

for examination of witnesses, leave given at hearing

tofile 329

defendant examined upon after his plea overruled, 302

J. JEW. see Answer.

JURISDICTION OF CHANCERY,

ordinary and extraordinary x

general - - . . . - 6. 8. 151

in relation to particular and inferior jurisdictions,

6.9

general objects of - - _ . -4,5.111 where to be exercised - - _ _ -111 frame of prayer of bill where defendant out of,

40, note when court will proceed in the absence of parties whose rights may be affected by the suit,

32, & notes see Cross Bill Demurrer. Judgments. Plea.

JOINTURE,

without power of distress - - - 115 116 JOINTRESS,

favour shown to -270,

see Demurrer to Discovery. JUDGMENTS

of the Common Law and Ecclesiastical Courts en- forced in Equity - . ' 1 . 126, 127 see Plea.

K. KING,

suit on behalf of - - _ _ >_ 0,

- - may not be instituted against - -30, 31. 102

INDEX.

KING— continued. page.

where to be applied to by petition of right, 31. 102 see Crown. Suits.

KEEPER, LORD 7, & note

L. LAW, MUNICIPAL,

objects of- - - - - - 2

LEGATEES,

suit by or on behalf of - 167.171

decree in 168

of deceased person, no privity with debtor to his estate ------- 158

see Parties.

LETTER MISSIVE 38, & note

LITIGATION, see Repeated.

LIMITATIONS, see Statute.

LIS PENDENS, see Plea,

LORD OF PARLIAMENT, see Defendant.

LUNATICS,

by whom suit instituted on behalf of 29

defence on behalf of to a suit - - -103

see Answer. Demurrer. Idiots. Perso?is. Plea.

M. MAHOMETAN, see Answer. MAINTENANCE, see Demurrer to Discovert/.

MARRIAGE

of female plaintiff causes abatement of suit - 57 brokag-e securities rescinded - - - - 132

MARRIED WOMAN,

where she sues jointly with her husband -

separately by next friend 24. 28

A a 2

INDEX.

MARRIED WOMAN— continued, page.

her consent to the filing of a bill on her behalf,

separately from her husband, necessary - 28

defence by, to a suit - 104, 105

where she must, and where she need not, obtain an

order to answer separately - 104, 105, and notes

where she may be compelled to put in a separate

defence - - - - - - -105

see Demurrer. Next Friend. Plea.

MASTER,

as to his discretion in considering exceptions with

reference to materiality of the interrogatories,

316, note see Exceptions. Plea.

MATERIALITY, see Demurrer. Master

MISTAKE 128,129

MODUS, see Answer.

MONEY, payment of into Court, see Interpleader.

MORAVIAN, see Answer.

MORTGAGE ------- 130

MULTIFARIOUSNESS, see Combination. Demurrer. Demurrer to Discovery.

MULTIPLICITY OF SUITS prevented - 145.183 see Demurrer.

N.

NE EXEAT REGNO - 46

NEXT FRIEND

of infant 25, 26 & notes

- - how far interested in event of suit - 27 of married woman 28

see Costs.

INDEX. NEW TRIAL, page

bill for - - - - - - - J31

NON-CLAIM, see Plea of Fine.

NOTICE - - - 275, 276, & note, 277, & note,

278. 298. 302 see Agent. Demurrer. Plea.

NUISANCE - 144

see Crown.

O.

OATH 9, i o

OFFICES, PUBLIC,

securities for obtaining, rescinded - - - 132 OPPRESSION ------- ib.

ORDER FOR TIME.

what amounts to compliance with - 208, note. 209 see Time,

OUTLAWRY, see Persons. Plea.

P.

PAINS, see Demurrer to Discovery. Plea to Discovery.

PAPISTS 198.286

see Demurrer. Persons. Plea.

PARLIAMENT, LORD OF. see Defendant.

PARTIES,

general rule - - - - - - -163

_ all persons interested should generally be

39- 164

admits of qualifications - - 164

where defendant out of jurisdiction - - ib.

- - - persons in same interest complaining are nu- merous, in which case a suit may sometimes be instituted by one or more on behalf of all - 166,

& note, et seq. a a 3

INDEX.

PARTIES — continued. page.

where persons in same interest defending are numerous,

in which case a suit may sometimes be brought

against some of them as representing all,

1 70, & note

persons claiming under others before the court need

not in general be made parties - - 1 75

where persons entitled to ultimate or specific charges

are and are not necessary parties - 1 75, 1 76

where persons claiming the benefit of specific charges

upon a trust-estate, or cestui que trusts, must be

175, 176 & note where persons are entitled to aliquot parts of a trust- fund 176, note

the first tenant in tail only a sufficient party with

regard to the whole inheritance - - 173

to suit by trustees - - - - - 174

----- creditors against assets - - 171. 176

legatees - 168, note. 171

where personal representative a necessary party

176, 177, 178 person having the legal title generally a necessary

party - - - - - - - 179

assignor of chose in action, necessary party with

assignee - - - - - 179 & note

where the devisee and the heir, or attorney-general,

are necessary parties - - 171, 172,173. 176 committee must be party to a bill against idiot or

lunatic ---,_•-_» 30 husband must generally be party to a bill against his

wife -----_-_ ih. attorney or solicitor-general a necessary party in

respect to charity-funds - 30. 102. 169 note where a person may be made a defendant, although

not interested, or not in privity - - 160, note

INDEX.

PARTIES — continued. pa or.,

dispensed with by waver of claim against - 179 proper, where dispensed with upon reason suggested

by bill 180

where a person becomes entitled during pendency of suit - - - - - - - -174

demurrer for want of must show the proper parties

180 applies, it seems, to the whole bill 180, note

see Amendment. Crown, Demurrer. Plea. PARTITION - 110,120.122,123

PARTNERSHIP, see Answer, Plea. PATENT,

as to restraining infringement of - - 138.147 there must be a separate bill against each invader,

182, note

PEER OR PEERESS, see Defendant.

PENALTIES, see Demurrer to Discovery. Plea to Dis- cover!/. Waste.

PERPETUATION OF TESTIMONY,

bill for, form of- - - - - -51

— - - must be accompanied with affidavit 52. 150 see Bill. Demurrer. Plea.

PERSONS

incapable of exhibiting a bill by themselves alone are infants, married women, idiots and lunatics 24

_ _ — _ of acting for themselves, although not bearing either of these characters ; by whom a suit may be instituted on behalf of - - - 30

by whom a suit against such persons may be defended,

103, 104

outlawed, excommunicated, convicted of popish recusancy, attainted, and aliens, not incapable of exhibiting a bill 25, note

a a 4

INDEX. PETITION PAGE.

of right may be referred to the chancellor - 31 in a summary way on abuses of trusts for charitable

purposes, authorized by stat. 52 Geo. 3, c. 101,

18. 101, note relief upon, confined to cases of

the abuse of clear trusts - - 19. 101, note - - - - in relation to charities by the 59 Geo. 3, c. 91,

ioi, note see Rehearing.

PLAINTIFF,

how a change of interest in relation to, affects a suit,

57, et seq. suing in his own right effect, of his death, bankruptcy* &e. on the suit - - - - 57, et seq. 65 suing in aider droit effect of his death, bankruptcy, &c. on the suit - - 64, 658c note, 66, 67 &, note instance of imbecility of mind in - - 230 note see Corporations. Idiots. Infants. King. Luna- tics. Married Women. Queen.

PLEA ------ 14. 102. l06

when the proper mode of defence - - 218

where necessary rather than demurrer, see Distinction,

and 216

bill taken to be true so far as not contradicted by, 300 nature of ----- - 219. 294

object of- - - - - - -219

effect of- - - - - --14

form of --._.. 294# 300

must define precisely to what part of bill it extends

294- 3°° must contain only one defence - 295

must reduce so much of cause as it covers to a point

ib.

INDEX.

PLEA — continued. pa g e,

may consist of variety of circumstances - - 296 must bring the matter which it covers to issue, 298 as to this mode of defence in case of setting up two several bars to same matter - 296

double - 268, 269 note. 295, 296

leave in some instances given to plead double, 296, note instances of plea not being a complete defence, 297, note may be good in part, and bad in part - - 295 over-rules demurrer - 32°

where over-ruled by answer - - 240, note. 320 to amended bill may be disproved by answer to the original bill ------ 299

after demurrer over-ruled - - - - 216

where to be signed by counsel - - 301, note to be filed ------- 301

in what cases to be put in upon oath - - ib. admitted to be true by filing replication - 302, 303 where referred at once to a master - - 305

proceedings on - 15* 294* 301

of setting down to be argued - - 301. 305

modes of disposing of, by the court - - 301 effect of allowing - - - - - 15- 3° *

- — of over-ruling - - - - - 16

issue may be taken upon, and evidence produced upon facts pleaded - - - - 15- 3°2

consequence of defendant succeeding or failing in the

proof of facts pleaded - 302

effect of saving benefit of to the hearing - 303

ordering to stand for answer - 303, 304

_ _-- with liberty to

except ------- 304

ordered to stand for answer with liberty to except, qualified so as to protect defendant from part of discovery sought - 304. 313

INDEX.

PLEA — continued. page.

over-ruled cannot be set up by a person made party by bill of revivor - 289, note

amendment of - 281 and note. 324, note

division of subject - 219,220

to jurisdiction - 219, 220. 223, et seq~

to person - - - 219, 220. 226. 230. 234 in bar - 219, 220. 222. 231. 234, 235, 236. 274. 280 requisite allegations in, where founded on jurisdiction of an inferior court - - - - - 224 to information, that jurisdiction in visitor - 225 of outlawry of plaintiff - 226. 305

rules respecting, 226 8c notes,

227 & note of excommunication of plaintiff - - 227.305

rules respecting, 227

8c note, 228 & note of plaintiff being papist recusant convict - 228.232 __.. __ — rules respect- ing - --____ 228. 233 of attainder and conviction of plaintiff - 228. 232

rules respecting

229 8c note of alienage of plaintiff ----- 229

rules respecting, 229 8c note

of plaintiff being an infant, a married woman, an idiot

or a lunatic - _____ 229

negative, in denial of plaintiff's title, as that he is not

heir or administrator as alleged by him, 230 8c notes,

231 8c notes, 232, 233 of plaintiff's bankruptcy or insolvency, 232 8c note of want of privity between plaintiff and defendant, 234 that defendant is not the person, 8cc. alleged, ib. negative, that defendant not interested, 235 8c note that defendant not liable to demands of plaintiff 235

INDEX.

PLEA— continued. page/

of matters recorded, or as of record - - 236

of decree - - - 236, et seq. 246. 305

when it may be in bar of a new suit, 237,

et seq. _ - — - see Dismission.

of another suit depending - 237. 246 & note, et seq. necessary averments in, 247

— ___.. — effect of plaintiffs setting

same down to be argued - 247

— ____-__- — _ reference to a master upon,

246 note. 247 & note.

,. _-__ not put in upon oath, 248

— - course of proceeding upon,

246 note. 248

may be good, although suits

not between same parties - 248

— ^ _ may not be good where

plaintiff sues in different rights - - 249

— in a creditor's suit ib.

--at common law, or in eccle- siastical court, it seems, not good - 250 & note, of a fine and non-claim - 251

— _ where the title is legal, and

where equitable, 251, 252

. - - necessary averments therein,

251 & note. 253

to a bill of review - 253

of a recovery ------ ib.

of a judgment ------ 255

_ upon a bill in respect of rights deter- mined thereby ----- 254

-. to set it aside - 255

of will and probate ----- 257 of matters i n pais - 236,258

of a stated account - 258, 259. 263

INDE X.

PLEA — continued. page.

of stated account, form of - - 259, 260 & note of an award - 258.260

of a release - 258.261

form of - 261, & note. 263

of a legal instrument controlling or affecting the rights of the parties - - 258. 263, et seq.

- - will .... 263

- conveyance -----_ iD>

- articles of partnership - 264

- an agreement to refer to arbitration - - ib. of a statute, creating a bar to the plaintiffs demand,

258. 265, et seq.

- - the statute of frauds - 258. 265

form of - - 265, et seq.

in case of alleged trust 265

in cases of agreements 266

-- the statute of limitations - 258.269

form of - - 269, et seq.

to claim of debt - 269

- ____ _.__ money received

to plaintiffs use - - - - - -270

things executory,

271 . . title _ iD>

--to a bill to redeem a mort- gage - ib.

to a bill of revivor - 272

ofplenarty - - - - - - -ib.

of public, or general, or of a local or particular sta- tute 274

of purchase, &c. for valuable consideration without notice - - - - - _ 274, et seq.

proper averments in such a plea, 275, et seq. 277 note.

298

INDEX.

PLEA— continued. page.

to a bill to perpetuate testimony - 279

— _ _ for discovery of deeds - - ib.

for want of parties - 280, et seq.

_ _ _. _ _ _ particular cases in which this plea

may be avoided - - - - - 281

containing negative averments supported by answer, as in instance of decree containing averments in denial of equitable circumstances charged and accompanied by answer in support thereof, 239

et seq. 277 note. 293

effect of such a plea so framed and so supported,

245 of judgment so framed and so supported - 256

of stated account so framed and so supported, 259,

260 of an award so framed and so supported - 260 of a release so framed and so supported - 262 of statute of frauds so framed and so supported,

268 _______ limitations so framed and so sup- ported ___--_ 271 to discovery - - 2.S\,etseq.

_ _ where plaintiff states a false case 282

___ not interested - ib.

defendant not interested, 282, 283

_ - discovery sought improper, 282

284

_ _ that it might subject defendant to pains,

penalties or forfeitures - 284. 286

_ _ effect of waver - 287

_ _ that it would betray confidence reposed

in defendant, as counsel, attorney or arbitrator,

284. 288 - - that defendant a purchaser for a valu- able consideration without notice - - ib.

INDEX.

PLEA — continued. page.

as to such a defence to the relief extending to the

discovery ------- 270

to a bill for writ of certiorari - 289 & note

of revivor - 289

of supplement that the new matter was ante- cedent _--____ 290

- - cross-bill __-__. 292

- bill of review - - - - - 291 on ground of matter extrinsic to

the decree, as lapse of time - 204, 205 & note

- - supplemental bill in nature of a bill of review, 293 to a bill impeaching a decree - - 239. 293 to carry a decree into execution - 293

- - an amended bill, that the new matter was subse-

quent, 290 see Amendment. Answer. Averments. Demurrer. Distinction. Interrogatories. Time.

PLEADING,

former practice as to course of - - 18. 321

PLEADINGS,

order in which treated of - - - - 20

PLENARTY. see Plea.

PRAYER

for particular and for general relief - 37, 38, 39. 45

- - special order or provisional writ, 46 & notes, 47

see Bill. Jurisdiction.

PREROGATIVE, see Suits.

PRESERVATION

of property pendente lite by this court - - 135

PRIVITY, see Agent. Creditors. Demurrer. Legatees. Parties. Plea.

INDEX.
PROBATE	PAGE.
of will obtained by fraud	257 &, note
in a foreign court	- 258
see Plea.
PUBLIC POLICY - - -	- 132
PURCHASER, see Demurrer. Plea.	274, et seq.

Q.

QUAKER, see Answer.

QUEEN CONSORT - 23. 99. 102

a bill may not be exhibited against her 30

where to be applied to by petition - - 31

QUIA TIMET BILL 148

R. RECORD,

where right appears by, not necessary to establish same at law ------ 147

RECOVERY, see Plea.

REFERENCE TO MASTER, see Master. Plea. Suits.

REGISTER ACT (Ship),

observance of formality required by, neglected, 116

REHEARING,

petition of - - - - 90 & note, 91 & note see Decree.

REJOINDER ------- 323

special, disused ------ ib.

leave given to withdraw and to rejoin de novo, 323 note

RELATOR,

as to nomination of, and as to liability when named, 22, 23 & notes, 29 & note, 99, 100 death of, how suit affected by - - - 100

see Costs.

INDEX.

PAGE.

RELIEF 8, 9. 12

defence in respect of though not of, discovery, 107.110 where legal and founded upon discovery of deeds sought by bill, affidavit to be annexed thereto, 54. 1 24 see T)emurrer. Plea.

RELEASE. See Plea.

pleaded, must be upon good consideration - 261 as to execution of - - 263 & note

REMAINDER,

tenant in remainder may appeal from a decree against one having a prior estate of inheritance - 1 73 see Decree.

REMEDIES

afforded in Equity with reference to such as are attainable in Courts of Law - - 113, et seq.

REPEATED LITIGATION

restrained - - - - - - -144

REPLICATION, - - - - - - 321

special, now almost disused - - 18, 322 & note liberty given to withdraw, and to amend bill, 322 note,

331 note where allowed to be filed nunc pro tunc, 323. 329, 330 see Disclaimer. Plea.

REPRESENTATIVE, PERSONAL. See Parties. Plea negative.

HEVIEW, BILL OF,

under what circumstances such a bill can and cannot be sustained - - - - 83 & notes, 90

where such a bill may and may not be filed without leave of the Court ----- 84

where such leave will and will not be granted,

85, et seq. & notes

INDEX.

REVIEW, BILL OF— continued. page.

rules in relation to, as to proceedings and as to

time ___88

rame of ------- ib.

affidavit necessary upon application for leave to file -------- 84

see Bill. Decree. Plea. Supplemental Bill.

REVIEW, BILL IN NATURE OF BILL OF

where the proper course of proceeding is by - 92 may be filed without leave of the court - - ib. frame of - - - - - _ - ib. see Bill.

REVIVOR, BILL OF.

frame of------ -76

course of proceeding upon - 76, 77

practice in relation to - - - - 77

instances in which not necessary - - 58, et seq.

instances in which court has acted without - 77

where plaintiff has no title to revive - - 289

barred by Statute of Limitations - 290 see Answer. Bill. Demurrer. Plea.

REVIVOR, BTLL IN NATURE OF BILL OF

where the course of proceeding is by - - 97 frame of ---____ j{j# see Bill. Costs. Decree.

RIGHT, see Custom. Record.

S.

SCANDAL

in bill ----._.

in answer - -

nothing relevant considered as - - ib.

costs in strictness to be paid by counsel - 48. 318

B B

- 48

- 313

INDEX.

SCIRE FACIAS page.

subpoena in nature of - - - 69

SENTENCE, see Judgment.

SETTLEMENTS - - - - - - 279

SIMONY, see Demurrer to Discovery.

SOLICITOR-GENERAL - - 22, 8c note. 99. 102 see Parties.

SPECIFIC PERFORMANCE, see Agreement.

STATING PART, see Bill.

STATUTE, see Plea.

STATUTE OF FRAUDS,

as to effect of insisting on, by plea or by answer, 268, note, see Agreement. Discovery. Trust.

STATUTE OF LIMITATIONS,

where it applies, and where the court is influenced

by analogy to it - 272, 273, &, note.

as to its application to a suit in equity, or to a

decree - - - - - - - 273

see Acknowledgment. Demurrer. Discovery. Plea. Revivor.

SUBPCENA ------- 37

to rejoin - - - - - - - 323

SUITS

instituted on behalf of the Crown, of those who par- take of its prerogative, and of those whose rights are under its particular protection 7

_____--__------- — by whom severally

instituted - - - - - - -21

one on behalf of infant referred to a Master to ascer- tain whether for infant's benefit - - 27 &, note.

two on behalf of infant, referred to inquire which most for infant's benefit ----- ib.

INDEX.

SUITS— continued. page.

new, how they become necessary - - - 17 see Statute of Limitations.

SUPPLEMENT, BILL OF,

cases in which filed - - - 61. 63. 82 note objects of ------- 62

frame of ------ -75

course of proceeding upon - - - - lb.

instance in which Court proceeded without 74, note after decree -------64

see Bill. Plea.

SUPPLEMENT, BILL IN NATURE OF BILL OF, where course of proceeding is by - - - 98 frame of -------99

see Bill.

SUPPLEMENTAL BILL, IN NATURE OF BILL OF REVIEW,

where course of proceeding is by - - - 90 affidavit necessary upon application for leave to file, 9 1 frame of ------- ib.

see Bill. Demurrer. Plea. SURRENDER of copyhold defective - - - 116

T.

TENANT, see Copyhold. Interpleader. TENANT IN TAIL, see Decree. Parties.

TERMS, OUTSTANDING,

where setting up of restrained - - - 134

TESTIMONY, see Bill. Perpetuation.

TIME,

lapse of, as to demurrer founded on, see Bill of Review

212

to plead, answer or demur, rules in relation to

208 & note

B B 2

INDEX.

TIME — continued. page.

lapse of, to answer, after plea or demurrer overruled

see Discovert/. Statute of Limitations. TITHES 125

TITLE OF PLAINTIFF,

instances in which to be established at law before

equity will interfere ----- 54

as to this Court's consideration of the legal or equitable

199

see Answer. Demurrer. Plea. Record.

TRADING, ACTS OF. see Demurrer to Discovery.

TRESPASS - - - - - - - 137

see Crown.

TRIAL, see Bill. New.

TRUST,

as to necessity and effect of confessing in an answer with reference to the setting up of the Statute of Frauds _-_---- 267

TRUST-FUND, see Parties.

TRUSTEES, see Answer. Parties.

TRUSTS - - - - - - - - 133

U.

USURY, see Demurrer to Discovert/,

V. VERDICT, see Judgment.

W.

WAVER

of forfeiture ------- 287

of penalty - - - - - - -195

INDEX.

WASTE, page.

legal - 114, 115, & note. 136, 137, 138, 139, 140 equitable ----- 115, note. 140

pendente lite ------ 136, 137

penalty and forfeiture in case of - - 138, 139

— - oua'ht to be waved in bill seek-

ing to restrain - - - - - -139

WILL,

obtained by fraud ------ 257

see Plea.

WILLS,

Courts of Equity will not decide upon their validity,

123, note

WITNESS

made defendant, discovery by, not compelled - 283 see Demurrer. Examination. Plea.

WRITINGS, see Deeds. Delivery.

FINIS.

Luke Hansard & Sons, near LincolnVInn Fields.

NE W LA W WORKS, published bij J. Sc W. T. Clarke.

DIGEST OF REPORTS.

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1 CONTENTS.

Of the Jurisdiction of the Lord Of the Dividend.

Chancellor. < /f the Bankrupt.

Of the Trading. Of the Certificate.

Of the Act of Bankruptcy. Of Partners.

Of the Petitioning Creditor. Of Relation to Act of Bankruptcy.

Of the Commission. Of Set-oft'.

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Of the Assignment by the Com- Of the Practice of the Court on

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l. Of the Freehold Property; Of Costs.

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The New Act.

General Orders in Bank- ruptcy. Practical Forms :

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First Public Meeting.

Second Public Meeting.

Third Public Meeting.

Of the Meeting to inquire re- specting the Bankrupt's Property.

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Of the Meeting to audit the Accounts of the Assignees.

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AA 000 176 918

UNIVERSITY OF CALIFORNIA LIBRARY

Los Angeles This book is DUE on the last date stamped below.

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MAR 1 a 199! HAR 1 < 1991

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