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Full text of "Cases on equity pleading and practice"

THE LIBRARY 

OF 

THE UNIVERSITY 

OF CALIFORNIA 

LOS ANGELES 



SCHOOL OF LAW 



CASES 



ON 



EQUITY PLEADING 



AND 



PRACTICE 



BY 

BRADLEY M. THOMPSON, M. S., LL. B. 

JAY PROFESSOR OF LAW IN THE UNIVERSITY OF MICHIGAN 



CHICAGO 

CALLAGHAN & COMPANY 
1903 



T 

T37I1 



Copyright 1903 

BY 

CALLAGHAN & COMPANY 



In 

ft 



PREFACE. 



The cases contained in this volume have been selected with a 
view of assisting both the student and the instructor, with illus- 
trations of the practical application of the general principles and 
rules of equity pleading and practice. Only so much of the state- 
ment of fact and of the opinion of the court have been retained in 
each case as is sufficient to make the decision upon the question 
of pleading before the Court intelligible and clear. As far as 
possible all padding has been excluded. 

In the selection of these cases and in the preparaiion of this 
volume, we are greatly indebted to the valuable assistance of 
John W. Dwyer, LL. M., Insstructor of Law in the University of 
Michigan. 

Littleton has said: "And know, my son, that it is one of the 
most honorable, laudable, and profitable things in our law to have 
the science of well pleading; and, therefore, I counsel thee espe- 
cially to employ thy courage and care to learn this." 

We hope that this collection of cases will be of some practical 
assistance to the teacher in giving instruction in this very difficult 
branch of the law and that it will stimulate the courage of the 
student to master the "science of well pleading." 

B. M. Thompson. 

University of Michigan, March 1, 1903. 



Ul 



740039 



TABLE OF CONTENTS. 



CHAPTER I. 
Persons Capable of Suing and Being Sued in Equity. 

PAGE. 

Suits by Aliens 1 

Suits By and Against Sovereigns 3 

Suits By and Against Infants 7 

Suits By and Against Persons Mentally Incompetent 25 

CHAPTER II. 

Parties to a Suit in Equity. 

Parties Classified 32 

Joint Plaintiffs 37 

Parties Defendant 50 

Multifariousness 52 

CHAPTER III. 

Form and Requisites of a Bill in Equity. 

Parts of a Bill in Equity 69 

Address of the Bill 71 

Introduction 73 

Stating Part 76 

Charging Part 92 

Clause of Jurisdiction 94 

Interrogating Part 95 

Prayer for Relief 108 

Prayer for Process Ill 

Signing the Bill 117 

Certainty in Pleading 118 

CHAPTER IV. 

Proceedings .on Behalf of Plaintiff. 

Filing the Bill 129 

When is Suit Commenced 133 

Process 141 

Default and Decree Pro Confesso 147 

V 



vi Table of Contents 

CHAPTER V. 
Peoceedings ON Behalf of Defendant. 

PAGE. 

Appearance ^^^ 

Disclaimer ^^■'■ 

Demurrer 163 

CHAPTER VI. 
Proceedings ON Behalf of Defendant. [Continued,] 



Pleas 



173 



Pendency of Another Suit 191 

Answer to Support Plea 197 



Answer 



221 



Exceptions to Answer 235 

CHAPTER VII. 

Further Proceedings on Part of Plaintiff. 

Replication 246 

CHAPTER VIII. 

Decrees. 

Nature, Effect, Amending, and Enforcing 253 

CHAPTER IX. 

Amendments, Bill of Review, Ne Exeat, Production of Papers. 

Abatement, Etc. 

Amendments 269 

Bill of Review 277 

Ne Exeat 303 

Production of Papers 307 

Abatement and Revivor 309 

CHAPTER X. 
Cross Bill, Interpleader, Perpetuate Testimony, Etc. 

Cross Bill 311 

Interpleader 315 

Perpetuate Testimony 316 

Examine Witnesses De Bene Esse 321 



CASES REPORTED. 



B. 

PAGE. 

Bank v. Hoyt 74 Miss. 221 Iz9 

Bank v. Levy 3 Paige (N. Y.) 606 102 

Bartlett v. Batts 14 Ga. 539 18 

Beech v. Haynes 1 Tenn. Ch. 569 229 

Bell V. Chapman 10 Johns (N. Y.) 183 1 

Bolton V. Gardner 3 Paige Ch. (N. Y.) 273 197 

Booker v. Booker 20 Ga. 777 316 

Brooks V. Byam 1 Story 296 235 

Brown v. Ricketts 2 Johns Ch. (N. Y.) 425 250 

Brunner v. Bay City 46 Mich. 236 37 



Carter v. Ingraham 43 Ala. 78 113 

Chadbourne v. Coe 10 U. S. App. 78 32 

Clark V. Slayton 63 N. H. 402 133 

Coach V. Judge 97 Mich. 563 314 

Comstock V. Herron 45 Fed. Rep. 660 69 

Crowell V. Botsford 16 N. J. Eq. 458 141 

D. 

Denton v. Denton 1 Johns Ch. (N. Y.) 364 303 

Dexter v. Arnold 5 Mason 303 277 

Dorn V. Geuder 171 111. 362 85 

Dorsheimer v. Roorback 18 N. J. Eq. 438 25 

Dunham v. Jackson 1 Paige Ch. (N. Y.) 629 303 

Dovaston v. Payne 2 H. Black. 527 118 

Dwight V. Ry. Co 9 Fed. Rep. 785 213 

E. 

Enos V. Capps 12 111. 255 17 

F. 

Farley v. Kittson 120 U. S. 303 183 

Flint V. Comly 95 Me. 251 155 

vii 



viii Cases Reported 

G. 

PAGE. 

Giant Powder Co. v. Cal. Powder Co..5 Fed. Rep. 197 262 

Goodwin v. Smitti * 89 Me. 506 94 

Goodrich v. Pendleton 3 Johns. Ch. (N. Y.) 384 203 

Gove V. Pettis 4 Sandf. Ch. (N. Y.) 404 73 

H. 

Heartt v. Corning 3 Paige Ch. (N. Y.) 566 177 

Harrison v. Farrington 38 N. J. Eq. 358 173 

Harvey v. Richmond 64 Fed. Rep. 19 74 

Hartwell v. Bloclcer 6 Ala. 581 122 

Higinbotham v. Burnet 5 Johns Ch. (N. Y.) 184 168 

Hill V. Phelps 101 Fed. Rep. 650 297 

Holden v. Holden 24 111. App. 106 108 

Hood V. Inman 4 Johns Ch. (N. Y.) 437 126 

Holt V. Daniels 61 Vt. 89 221 

Howe V. Robins 36 N. J. Eq. 119 Ill 

Hoyle V. Moore 4 Ired. Eq. (N. C.) 175 50 

Hughs V. Washington 65 111. 245 253 

I. 

Isham V. Miller 44 N. J. Eq. 61 161 

J. 

Jarvis v. Crozier 98 Fed. Rep. 753 7 

Johnson v. Waterhouse 152 Mass. 585 20 

K. 

Kelly V. Eckford 5 Paige Ch. (N. Y.) 548 307 

Kile V. Goodrum 87 III. App. 462 315 

King V. Kuepper 22 Mo. 550 3 

Knickerbacker v. De Freest 2 Paige Ch. (N. Y.) 304 15 

L. 

Leggett V. Dubois 2 Paige Ch. (N. Y.) 211 309 

Lloyd V. Loaring 6 Ves. 773 44 

Louisiana Bnk. v. Whitney 121 U. S. 284 257 

Lowenstein v. Glidewell 5 Dillon 325 311 

M. 

Martin v. Palmer 72 Vt. 409 117 

Mason v. Hartford Ry. Co 10 Fed. Rep. 334 246 

McDermott v. Thompson 29 Fla. 299 23 

Miles V. Miles 27 N. H. 440 95 

Moors V. Moors 17 N. H. 481 226 

Murray v. Hay 1 Barb. Ch. (N. Y.) 59 39 



Cases Reported ix 



PAGZ:. 

Perry v. Carr 41 N. H. 371 91 

Phoenix Ins. Co. v. Wulf 9 Biss. 285 144 

Pointon v. Pointon L. R. 12 Eq. Cas. 547 65 

Porter v. Spencer 2 Johns. Ch. (N. Y.) 169 304 



Radford v. Folsom 14 Fed. Rep. 97 191 

Richter v. Jerome 25 Fed. Rep. 679 321 

Rider v. Kidder 12 Ves. Jr. 202 267 

Robinson v. Smith 3 Paige Ch. (N. Y.) 222 163 

Roughan v. Morris 87 111. App. 642 26 



Seals V. Robinson 75 Ala. 363 76 

Smith V. Clark 4 Paige (N. Y.) 368 92 

Souzer v. De Meyer 2 Paige Ch. ( N. Y. ) 574 211 

Spangler v. Spangler 19 111. App. 28 189 

Stafford v. Brown 4 Paige Ch. (N. Y.) 88 242 

Sterrick v. Pugsley Fed. Cas. No. 13379 71 

T. 

Thomson v. Wooster 114 U. S. 104 147 

Thorn v. Germand 4 Johns. Ch. (N. Y.) 363 276 

U. 
United States v. Am. Lumber Co ... 85 Fed. Rep. 827 134 

V. 
Verplanck v. Mercantile Co 1 Edwd. Ch. (N. Y.) 46 269 

W. 

Waring v. Crane 2 Paige Ch. ( N. Y. ) 79 11 

Warren v. Warren 56 Me. 360 52 

Winslow V. Jenness 64 Mich. 84 60 

Winthrop Iron Co. v. Meeker 109 U. S. 180 258 

Wright V. Wright 8 N. J. Eq. 143 Ill 



ON 



EQUITY PLEADING AND PRACTICE 



CHAPTER I. 

PERSONS CAPABLE OF SUING AND BEING SUED IN 

EQUITY. 

Suits by Aliens. 

Bell V. Chapman, 10 Johns. (N. Y.) 1S3. (1813.) 

Action on a covenant contained in a lease. Suit commenced by 
a British subject during the war of 1812. The defendant put in 
the plea that the plaintiff was an alien enemy. To this plea, the 
plaintiff demurred, and the defendant joined in the demurrer. 

Per Curiam: 

The plea puis darrein continuance avers that the plaintiff was, at 
tlie commencement of the suit, and still is, commorant in Ireland ; 
and that since the last adjournment he has become an alien enemy, 
being an alien, born within the allegiance of the King of Great 
Britain, with whom we axe at war, and the plea concludes in bar 
of the action. There is no doubt that the plea is a valid one in the 
case of the alien's residence in the enemy's countn', and the plea 
may be pleaded either in abatement or in bar, for the precedents 
arc both ways. (Hast. Ent. tit. Ejectment, 7. tit. Trespass per 
Alien, 1. Cornw. Tab. tit. Abatement, 7. tit. Bar in Divers Actions, 
87. ^YcUs V. Williams, 1 Lutw. 34, 35. West v. Sutton, 1 Salk. 2.) 
This plea conforms precisely to the opinion of the K. B. in Le Bret 
V. Papillon (4 East, 502), in concluding in bar of the further 
maintenance of the suit. Asth o disability of the plaintiff is but 
tomporary in its nature (for a state of per petual war is not to be 
presumed), the good sense and logic of pleading would seem to 



2 Suits by Aliens 

be in fa vor of the ple aconcludino; i n abatement, wh e n the causej of 
action i snot void or extinguished. But wh ether_the^jgl ea be in th( 3 
one form or the other is, perhap s^no t material, for the jud gment 
thereon would not be a bar to a new action on the return of peace . 
A j udfflnent is no bar to a new suit, unless it involves th e merits 
of the controversy, or be founded on matter which affords a perma- 
nent avoidah'ce, or dischargeT Bu t tlie present plea only bars the 
plaintiff , in his character of alien enemy commorant abroad, trom. 
prosecuti ng the suit^ It does not so much as touch the meri ts of 
the action. In a late case in chancery {Ex parte Boussmaker, 13 
Ves. 71), Lord Erskine declared that the alien's right of action, 
in such a case, was only suspended by the war, and that if the 
contract was originally good, the remedy would revive on the 
return of peace. This was even the ancient doctrine, according 
to Lord Coke, who said (Co. Litt. 129. b.) that "true it is an 
alien enemy shall maintain neither real nor personal action, donee 
terrce fuerint communes^ that is, until both nations be in peace." It 
is also admitted by the best modern authorities, on the law of na- 
tions, that the plea of alien enemy is only a temporary bar to the re- 
covery of private debts, and that the right of action returns with 
the return of peace. (Bynk. Quaest. Jur. Pub. b. 1. c. 7. Vattel, 
b. 3. c. 5. s. 77.) 

There is, then, no well founded objection to the plea, and the 
defendant is entitled to judgment. 

Judgment for the defendant.* 

*In the case of Clark v. Morey, lo Johns. (N. Y.) 69 (1813), which 
was an action on a promissory note, the plaintiff, at the time being an 
alien enemy residing in this country, the court stated the law as follows : 
"And it has now become the sense and practice of nations, and may be 
regarded as the picblic lazu of Europe, that the subjects of the enemy, 
so long as they are permitted to remain in the country, are to be protected 
in their persons and property, and to be allowed to sue as well as to be 
sued. It is even held, that if they are ordered away, in consequence of 
the war, they are still entitled to leave a power of attorney, and to collect 
their debts by suit." 



KlXG V. KUEPPEE 



Suits by and against Sovereigns. 




^^ 




King v. Kuepper, 22 Mo. 550. (1S5G.) 

Error to St. Louis Circuit Court. 

This was a suit brought by Frederick William IV, king of ^ 
Prussia', against Felix Coste, administrator of Frederick William 
Kuepper, deceased. The petition is as follows: "The plaintiff 
states that he is absolute monarch of the kingdom of Prussia, and 
as king thereof is the sole government of that country; that he is* 
unrestraincnl by any constitution or law, and that his will, expressed^ 
in due form, is the only law of that country, and is the only le< 
power there known to exist as law. aV 

"The plaintiff further states that by the law of Prussia any ^ ^ ( 
money or its equivalent sent or transmitted through the royal t^ J^ , 
post department of that country, or received to be so transmitted ^ ,1 i 
or sent by any duly authorized officer of said department, if lost, q ^. \ 
stolen or embezzled, is to be refunded to the proper owners thereof '^ 
by the plaintiff, through his officers and agents, and that such 
was the law on and long before the 10th April, 18-19. The plaintiiV 
further states that the said Kuepper was on and for a long time 
before the 10th April, 1849, the plaintiff's sen^ant and post officer 
at Wermelskirchen, in the kingdom of Prussia, and that while. 
said Kuepper was such post officer, he received, in liis official 
capacity, large sums of money, or its equivalent, portions of which 
money, or its equivalent, were transmitted through such depart- 
ment, and received by said Kuepper as aforesaid, to be delivered 
by him to the true owners thereof at Wermelskirchen, and por-_ 
tions of which were deposited with him as aforesaid by persons at 
Wermelskirchen, to be transmitted by him through said post de- 
partment to persons at various places ; and the plaintiff, if required, 
is willing and ready to give a statement of each item, by and to 
whom sent, when, &c. The whole amount of the moneys or its 
equivalent, so received by said Kuepper, was seven thousand four 
hundred German dollars, or thereabout, which, in the currency of 
the United States, are equal to sixty-nine cents each. 

"The plaintiff further says that on or about the 10th April, 
1849, said Kuepper did abscond with all said sums of money. 



4 Suits by and against Sovereigns 

and did eiiibe2?zle and convert the same to his own use, and secretly 
fled and escaped from the said kingdom and came to St. Louis, 
Missouri, where he died in the summer of 1849, and letters of 
administration on his estate were duly granted to the defendant 
(Coste) by the St. Louis probate court, on the thirty-first day of 
July, 1849. The plaintiff further states that he has, according to 
the law and custom of his said kingdom, duly refunded and paid 
to the various and proper owners thereof the various sums of 
money or its equivalent, stolen and embezzled from them respect- 
ively by said Kuepper as aforesaid, and that he therefore has, 
according to said law and custom, and by justice and right ought 
to and has a just and legal demand against the defendant, for the 
sums of money by him and his officers so refunded and paid. 

"The plaintiff says, therefore, that the defendant justly owes 
him said sum of money, and he estimates his damages for said 
money and interest at the sum of seven thousand dollars, for which 
last sum he asks judgment against the defendant." 

The defendant demurred to this petition, and assigned the fol- 
lowing reasons : That the petition does not state facts sufficient to 
constitute a cause of action ; that it does not state any legal privity 
between the plaintiff and defendant; that it does not state any 
legal right in the plaintiff to recover the said sums of money 
alleged to have been embezzled from certain persons living in the 
kingdom of Prussia; that it does not state any legal right in the 
plaintiff to recover for the money embezzled by the said Kuepper, 
which, at the time of the embezzlement, belonged to other persons 
than the plaintiff; that the plaintiff was not under any legal 
obligation to pay to the persons from whom Kuepper embezzled 
property as alleged, and the payment of such losses was merely 
voluntary, and that the plaintiff has no legal capacity to sue in 
this court; wherefore the defendant prayed judgment and for 
costs. 

The court below sustained the demurrer, and gave judgment 
for the defendant, to which plaintiff duly excepted. Plaintiff 
brings the case here by writ of error. 

ScoTT^ Judge, delivered the opinion of the court. 

This case comes up on a demurrer, and raises the question 
whether a foreign sovereign can sue in our courts. It seems to 
be now well settled in England that a foreign sovereign can sue 
in her courts both at law and in equity. In the case of HiiUet 



King v. Kuepper 5 

& Co. V. The King of Spain, Lord Redesdale said: "I have no 
doubt but a foreign sovereign may sue in this country, otherwise 
there would be a right without a remedy. He sues here on behalf 
of his subjects, and if foreign sovereigns were not allowed to do 
that, the refusal might be a cause of war. (1 Dow & Clark, 175; 
The King of Spain v. Machado, 3 Con. Eng. Chan. 645 ; 1 Clark 
& Finnelly, 333; The Columbian Government v. Rothschilds, 2 
Con. Eng. Chan. 48.) 

Kings have been allowed to sue in the United States. In the 
case of the King of Spain v. Oliver (1 Pet. C. C. R. 276), the 
suit was entertained without question as to the right of a foreign 
sovereign to sue. So the case of the Republic of Mexico v. 
Arrangois and others (11 How. Prac. Rep. 1) was entertained by 
the courts of New York. In our courts, a writ in the name of 
the state of Indiana was brought and passed through all of them, 
without any question as to the right to do so. {Tagart v. State of 
Indiana, 15 Mo. 209.) 

If the subjects of foreign gov ern ments will contract .oblijcations 
or affcxit themselves with liabilities t o their k ings or princes, and 
after wards migrate to the Uni t ed States, t here is nothing in the 
nature of our insti t utions whi ch shields them from their just 
respons ibilities . While our government grants the rights and 
privileges of citizenship to all foreigners who are naturalized under 
our laws, there is neither policy nor justice in screening them from 
the civil liabilities which they have contracted with the govern- 
ment to which they were once subject. Our tribunals afford no 
assistance in the enforcement of the penal codes of foreign nations, 
nor would they aid despotic rulers, in the exercise of an arbitrary 
power, in making special and retrospective laws affecting foreigners 
residing here, who were once their subjects. But when laws haig 
been made abroad, and debts^ have be en ^ontraxrted_jiiider_those 
laws, ther e is no reason for refus in g our as sista nce in th eir eol- 
lection. Though foreign laws may be enacte d by a po wer_and 
in a w ay inconsistent with the spirit of our institutions, th at is no 
reason why they should not be enforced against tj i^e_whaJiaz£ 
in curred respon sibilities in respect of them . Foreign nations have 
t he same ri<3i;ht to determine the form of govornme nt^^iost con^ 
ducive to their happine ss that we have, and to d e ny the validity 
of their laws, because they have not been made in a manner 
conformable to our notions of government, would be to destroy 



6 Suits by and against Sovereigns 

all comity amon g nations and introduce endless^wars and quar - 
rels. The averments in the petition show that by the laws of 
Prussia, the defendant's intestate was indebted to his sovereign, 
and he should be made to answer for it. 

It was maintained that this suit should have been brought in 
the courts of the United States, as the constitution of the United 
States expressly provides "that the judicial power shall extend to 
all cases between a state or the citizens thereof, and foreign states, 
citizens or subjects." 

The government of the United States being entrusted with the 
power of peace and war, it was necessary to invest it with authority 
to establish tribunals to which foreign states or subjects might 
resort for injuries sustained by the conduct of those residing within 
the limits of the United States. For the judgments of tribunals 
thus established, the United States would be responsible to foreign 
states. But if they, passing by the courts created by the general 
government for the redress of grievances they may have sustained 
at the hands of citizens of the United States, will litigate their 
rights in courts for whose conduct the United States are not 
responsible, if they should be dissatisfied with the measure of 
justice meted to them by the courts, they have no cause of com- 
plaint against the federal government. The ready answer to any 
remonstrances made on that score, would be that there should have 
been a resort to the tribunals established by the United States. 
The foreign prince has the right to resort to the courts of the 
general government; this is a privilege the constitution and laws 
secure to him; but he may renounce it like any other privilege, 
and litigate his rights in the state courts. 

Whilst commentators on the constitution maintain that it is 
competent for congress to vest all of the judicial powers of the 
United States exclusively in tribunals of its own creation, it is 
nevertheless admitted that this has not been done, and that the 
state courts, in cases in which they had cognizance before the 
adoption of the federal constitution, may, concurrently with the 
/courts of the United States, still entertain jurisdiction. 

The state courts, undoubtedly, before the existence of the federal 
government, had cognizance of causes in which foreign states were 
plaintiffs. That jurisdiction remains, unless it has been taken away 
by the constitution and laws of the United States. The grant of 
judicial powers by the constitution, in some cases, is exclusive; 



Jarvis v. Crozieb 7 

in others, it is concurrent at the will of congress; that is, congress 
may make it exclusive or concurrent, as it seems best. In cases 
in which the state courts had cognizance before the adoption of 
the constitution of the United States, that jurisdiction remains 
unless it is taken away. Congress has conformed its action to this 
principle, and has suffered a portion of the judicial powers of the 
United States to be exercised by the state courts. (1 Kent, 398; 
Story's Comm. § 1784.) The jurisdiction, in cases of the char- 
a'cter of that under consideration, has not been exclusively vested 
in the federal courts; hence the state courts may still exercise 
jurisdiction in all such cases. 

With the concurrence of the other judges, the judgment will 
be reversed, and the cause remanded. 



Suits by and against Infants. 



t^ 



^^ 



Jarvxs V. Crozier, 98 Fed. Rep. 753. (1899.) jT^ r^ /X^ 



On Motion to Eemand to State Court. „ ^ -^^ ^'^ 




Jackson, District Judge: r\\ [J^ { f .'(/^ 

This cause was removed to this court, by the defendant Samljel l^j^ / v^ 
A. Crozier, from the circuit court of McDowell county, and the^x ^^^ */ 
record filed on the 14th day of November, 1895. Upon the 5tlil^'^^^( 
day of January, 1898, a motion was made by the plaintiffs tojo'l i- *" 
remand the cause to the circuit court of McDowell county, which. ^ ^ ^ 
motion (being argued by counsel) the court, upon consideration^^^V, yj^,^^ 
thereof, overruled. Between the time of filing the record in this^j^i^^-^ ^^^ 
court and the motion to remand, there seems to have been little ^-^ (i*^ 
preparation made for the hearing of the cause, except the filing of :\\k'' Xr 
the joint answer of Samuel A. Crozier in his own right and of the ''i \h 



trustees of the Crozier Land Association, and the answer of the Nor- W^ r ^ 
folk & Western Eailroad Company. Since the motion to remand ^Jp^ * ^ 
was overruled, quite a number of depositions have been taken by the^iL-r^ j, 
defendants in support of their answers. The plaintiffs, failing to/^^ ^^/^ 
take any evidence in the case, have at the present term of the court V\ ^.r^ 
asked leave to renew their motion to remand, which leave was i/y^^ (u. "^ 
granted, and the court again heard the argument, and this cause/ z^'^'^l^ 
now comes on to be heard upon that motion. ^-'"'^ 

It appears from the bill filed in this cause by B. F. Jarvis in hi< 



8 Suits by and against Infants 

own right, and as the next friend of Mary Carry Bowen and Bowen 
Watts, who are infants, against the defendants, that the plaintiffs 
derived title to a certain tract of land some years ago, known as 
"Peery Bottoms," containing about 39 acres; that the lands were 
conveyed by one Andrew Sarver, one half to William T. Moore, and 
the other half to Peery and Bowen, and that William T, Moore 
subsequently conveyed his one-half to J. A. Belcher, who afterwards 
conveyed that one-half interest acquired from Moore to Samuel A. 
Crozier, and that Crozier conveyed a portion of his one-half to 
the Norfolk & Western Eailroad Company; and that the remain- 
ing portion of his half was conveyed to trustees for the Crozier 
Land Association. The bill discloses the fact that both Peery and 
Bowen are dead, and that their one-half interest passed to their 
heirs, and that all of the heirs except the infant plaintiffs, Mary 
Carry Bowen and Bowen Watts, have conveyed their respective 
interests in said parcel of land to the plaintiff Jarvis. The only 
object and purpose of this bill is a partition of the land described 
in the bill between the various owners in severalty, except a prayer 
for general relief. Upon the face of the bill, there is no con- 
troversy between the plaintiffs and defendants as to the extent of 
their respective interests. The bill upon its face shows that the 
plaintiff Jarvis is only entitled to one-fourth, and that the two 
infant heirs of Bowen are entitled to one-fourth, making one-half, 
and that Crozier and those under whom he claims are entitled to 
the other half. Tlie question of title is not in controversy, as both 
sides claim under Sarver as a common source of title. It is to be 
observed that there is no allegation in this bill that Jarvis, who 
sues as the next friend for the infant plaintiffs, was ever authorized 
to do so by a court, or by next of kin, or by anybody interested in 
them. It does not appear that he is in any wise related to them, 
but that he assumed the right, without any authority whatsoever, 
of making them plaintiffs in this cause of action. Ordinarily they 
would properly be defendants to the cause for the purposes of par- 
tition, as sought in this bill. There is no dispute between Jarvis 
and the infant plaintiffs as to their title or the extent of it. He 
admits upon the face of the bill that they are the owners of one 
undivided one-fourth of the 29 acres. It seems to the court that the 
draftsman of this bill had a special object in associating the in- 
fants as plaintiffs with Jarvis, and that the object was to prevent, 
if possible, the removal of this cause by Crozier, the Crozier Land 



Jaevis v. Crozier 9 

Assot-iation, and the Norfolk & Western Railroad Company into 
the courts of the United States, all of which defendants are non- 
residents of the district of West Virginia. If this be the case, and 
the court can properly do so, would it not be a case in which the 
court would transpose the parties, and place them on the respective 
sides of the case, so as to retain the case for hearing in this court 
if it can be done? Tlie only matter in dispute or controversy, if 
it can be called a controversy, between the infant plaintiffs and the 
plaintiff Jarvis, would be the laying off' of their respective interests 
in the said land. It is claimed that by reason of the fact of the 
infant plaintiffs being citizens of Virginia, and the Norfolk & 
Western Railroad Company being also a citizen of Virginia, this 
case is not wholly a case between citizens of different states. This 
partition can be had just as well by the infant plaintiffs being 
transposed and made infant defendants in the case, and their rights 
as fully and amply protected, as if they were plaintiffs to the 
action. The whole theory of the case, as presented by the bill, 
shows that they would more properly be defendants than plaintiffs ; 
and in the absence of an allegation in the bill that Jarvis was 
authorized to bring this suit, and associate these infants as infant 
plaintiffs, or the exhibition of any authority sustaining an allega- 
tion of that character, it would seem to be right, and properly so, 
to transpose these parties, and make them defendants in this cause, 
in order that the rights of all parties could be heard and adjudi- 
cated in this tribunal, where the defendants Samuel A. Crozier, the 
trustees of the Crozier Land Association, and the Norfolk & 
Western Railroad Company could be heard, as they desired. 

In the Removal Cases, 100 U. S. 457, 25 L. Ed. 593, the court 
held: 

"For the purposes of a removal the matter in dispute may be 
ascertained and, according to the facts, the parties to the suit 
arranged on opposite sides of that dispute. If in such an arrange- 
ment it appears that those on the one side, being all citizens of 
different states from those on the other, desire a removal, the suit 
may be removed." 

In the case of Barney v. Latham, 103 U. S. 205, 26 L. Ed. 514, 
the court held (following the cases just cited) that you may disre-i 
gard as inmiaterial the mere form of the pleadings, and place the 
parties on the opposite side of the real matter in dispute, accord- 1 
ing to the facts. 



10 Suits by and against Infants 

In the case of Hyde v. EulU, 104 U. S. 407, 26 L. Ed. 823, fol- 
lowing the decisions in the Eemoval Cases, the court held that 
where all the parties to the controversy on one side are citizens of 
different states from those on the other side, and there is in the 
suit a separable controversy, wholly between the parties who are 
citizens of different states, which can be fully determined as be- 
tween them, it may be removed. 

It may be contended in this case that the infant plaintiffs have 
made no application for a removal. They could only make it by a 
party who was duly authorized to represent them as their next 
friend, either by an order of court, or by a party who was either an 
executor or a personal representative who had control erf their es- 
tate, or who was next of kin, and so nearly related to them that 
the court would recognize the right to act for them. So far as the 
present case is concerned, it does not appear that Jarvis was ever 
authorized to act for them, or that he was ever authorized to insti- 
tute this suit for them; but he has made use of their names, and 
subjected them to litigation, and the costs and expenses thereof, 
without the slightest authority therefor. Is not such action upon 
the part of Jarvis calculated to awaken the attention of the court 
in the case, and is it not a mark of inexcusable inattention to make 
infants plaintiffs in an action by a party as a next friend who is 
neither next of kin nor has exhibited any authority whatever to 
justify his action in arranging them as plaintiffs to an action in 
which he had a personal interest ? It is a well-settled principle that 
any one must have no personal interest, however remote or indirect, 
who either institutes or defends an action for infants as their next 
friend. In re Burgess, 25 Ch. Div. 243 ; In re Corsellis, 50 Law T. 
(N. S.) 703. "When an infant claims a right or suffers an injury 
on account of which it is necessary to resort to a court of chancery 
to protect his rights, his nearest relation, not concerned in point of 
interest in the matter in question, is supposed to be the person who 
will take him under his protection and institute a suit to assert 
his rights, or defend an action against him ; and it is for this rea- 
son that a person who institutes a suit on behalf of an infant is 
termed 'his next friend.' " 1 Daniell, Ch. Prac. 69. Legal proceed- 
ings in favor of an infant should in every respect be strictly 
guarded, for the reason that an infant on coming of age can re- 
pudiate a suit brought in his name, and the court would be com- 
pelled to strike out his name as plaintiff and add it as a defendant. 



Waring v. Crane 11 

Chief Justice Marshall, in the case of Bank v. Ritchie, 8 Pet. 128, 
8 L. Ed. 890, discusses at some length the rights of parties to 
appear for infants; and, in a case in which there was an attempt 
to secure a judgment against infants who were represented by a 
guardian ad litem, he remarks that "the guardian ad litem was 
appointed on motion of counsel for the plaintiffs, without bringing 
the minoi"s into court, or issuing a commission for the purpose of 
making the appointment. This is contrary to the most approved 
usage, and is certainly a mark of inexcusable inattention," — and 
refers to Coop. Eq. PI. 109, for his position. It is the duty of a 
court of equity to look after the interests of infant defendants, and 
to protect them, in the absence of any one to represent them ; and 
it would seem proper in this case that a court of equity should make 
the infants defendants, and appoint a guardian ad litem to protect 
their interests as infant defendants, instead of allowing them to 
remain as plaintiffs to that action, and possibly have their estate 
more or less absorbed by the costs and expenses of litigation. An 
order will be entered transposing the position of Mary Carr}- Bowen 
and Bowen Watts from plaintiffs to defendants, and making them 
defendants in this action : also, directing that a guardian ad litem 
be appointed for the infant defendants, to protect their interests. 
For the reasons assigned, the motion to remand is overruled. 



Waring v. Crane, 2 Paige (N. Y.) 79. (1830.) 

The bill in this cause was filed in July, 1824, in the name of 
the complainants, who were infants, by A. Brunson, as the next 
friend of W. Waring, and by W. Baker, as the next friend of the 
other three complainants; charging the defendants, who were 
(>xecutors, with mismanagement of the estate of the father of the 
complainants; and also alleging that one of the defendants was 
irresponsible. An injunction was granted restraining the executors 
from selling or disposing of the estate. In October, 1825, upon 
the application of the defendants, and with the consent of the 
counsel for the complainants, a receiver of the estate was appointed. 
On the fourth of ]\rarch, 1827, W. Waring became of age; but 
without adverting to that fact the cause was brought to a hearing 
without giving any notice to him or calling upon him to appoint 
a solicitor. On the 16th of April, 1827, a decree for an account 



12 Suits by and against Infants 

was made b}' the consent of the counsel for the defendants and 
of the guardians of the complainants. The cause was afterwards 
brought to a hearing on the master's report, but it being ascer- 
tained that one of the complainants was of age and had no notice 
of the hearing, the chancellor ordered the cause to stand over, that 
such complainant might have notice to appear and defend his 
rights. An order was subsequently made referring it to a master 
to enquire and report whether there were any just grounds for the 
commencement and prosecution of tliis suit ; and whether the same 
had been prosecuted by the advice of counsel in good faith, and 
with the sole object of subserving the interest of the infant com- 
plainants; and to enquire and report whether the complainant 
W. Waring, since he became of age, had adopted the proceedings 
in the suit and assumed the agency and management thereof. The 
master reported that although there were apparently, yet in fact 
there were no just grounds for the commencement of the suit; 
that the suit was commenced for the infants by the advice of coun- 
sel, and with the sole object of subserving their interests ; that after 
W. Waring became of age, he took possession of the papers in the 
suit, and procured a master to proceed on the order of reference; 
and that since May or June, 1827, he had had the direction and 
management of the suit. After this report was made, the cause 
was brought to a final hearing, upon the pleadings, proofs, reports 
and the objections of the complainants' counsel to the last report. 

I The Chancellor: 
K 5 ^ A ^^ ^ ^^^^ ^^ ^^^^ ^^ behalf of an infant by his next friend, and 
fcr ^ \ ii/the bill is dismissed or a decree is made in the cause before the 
f jicA infant is of age, he cannot be personally charged with the costs. 



y Thcj are to be charged against the next friend, unless there is 

y -vvi^ Ir^ fund under the control of the court belonging to the infant, in 

'^" 'i^^ ' .which case the court may direct the costs to be paid out of that 

(L; fund. {Taner v. Ivie, 2 Yes. sen. 466.) But the costs will not b e 

t (L ""V" charged on the infant's estate, unless the co urt_is_satisfied th£_suit 

A Q/^ . was brought in good faith, and with a bona fi de intent t ojbenefit 

<^^ the infant. (Pearce v. Pearce, 9 A^es. 547. Whitaher v. Marlar, 

^^^foyl Cox's Cas. 285.) In Turner v. Turner (2 Peere Wms. 297), 

0"^' j> the next friend died before a decree in the cause. After the infant 

y^ became of age, he refused to proceed in the suit; and the bill was 

dismissed against him with costs. But on a re-hearing in that 



^ i" 



^v 






Waring v. Crane 13 

case, Lord King reversed his former decree as to the costs, and 
decreed that the infant was not liable therefor. (1 Strange, 708. 
2 Eq. Ca. Abr. 238, S. C.) If the suit was improperly brought, 
and the infant elects to abandon it when he becomes of age, he 
may apply to the court for a reference to ascertain the fact, and the 
bill will then be dismissed, with costs to be paid by the next friend. 
j3ut although the complainant elects to abandon the suit when he 
is of age, he ca nnot, as a mat t er of course, compel the next friend 
to ])ay the costs. If the suit was properly brought for^the infant's 
benefit, he mu st pay the c osts^ of the next fri end, a nd also th ose 
of the adverse party, wh en he app lies to dismiss the bill, (Anon. 
4 Madd. Iv. 4G1.) If he elects tojproceedjn jthe cause after he i s of 
ago, the ncxtfri end is discharged from hisj i ability, and the infan t_ 
will be l iable in t lic_s amc manner as if the suit had been comm enced 
by an adult. (1 Harrison, -tT-i. Mitford, 26.) The only excep- 
tion to this rule must be, the case that sometimes occurs, where a 
decree has been made during liis infancy, by which the infant's 
rights are bound. There the suit cannot be abandoned, although 
it was not brought in good faith, and was against the interest 
of the infant. In such a case, if the infant applied in time, the 
court might compel the next friend to remunerate him for the 
costs and expenses to which his estate had been improperly sub- 
jected, although he was compelled to proceed under the decree. 
In this case, W. Waring became of age before the decree was made 
against the executors for an account. He afterwards elected to 
proceed under the decree, and took the management of the refer- 
ence into his own hands. He has therefore affirmed the act of his 
next friend in bringing the suit, and it is too late for him now to 
insist that it was improperly brought. His proportion of the 
defendants' costs must be charged on him personally, or be paid 
out of his share of the estate. 

The situation of the next friend of the two complainants who 
have not arrived of age is different. If the suit was now in a 
situation to have the bill dismissed without prejudice to the rights 
of the infants when they come of age, I should be disposed to 
charge the costs upon their next friend, on the ground that the 
suit was improperly instituted by him, and without taking ordi- 
nary care to inform himself as to the facts. But some embarrass- 
ment now arises from the decree of April, 1827, under which the 
accounts of the defendants have been taken. Bv the will of the 



14 Suits by and against Infants 

testator the defendants were trustees, both of the real and personal 
estate, until the youngest child became of age; and it was their 
duty to take care of it until that time, and then sell or divide it 
among the complainants. Instead of consenting to a decree for an 
account, and asking for the appointment of a receiver, they should 
have asked for a dismissal of the bill; to enable them to go on 
and execute the trust, and account to the heirs when they became 
of age. The report of the master upon that reference having been 
confirmed, that accounting, so far as it goes, must be considered 
final between the parties. But the defendants cannot take the 
legacies, which were evidently intended as a remuneration in part 
to them for the execution of their trust under the will, and aban- 
don the trust. As they have been guilty of no misconduct or 
breach of trust they are entitled to the costs of defending this suit 
and of taking the account, to be paid out of the fund. The injunc- 
tion must be dissolved and the receiver discharged; and he must 
account with and pay over to the defendants the balance, if any 
in his hands, and deliver to them all property which has come to 
his possession. In case of disagreement, his accounts must be 
passed before a master residing in the county of Jefferson. The 
decree must direct the defendants to proceed and execute the trust 
according to the directions of the will, and to distribute the prop- 
erty among the complainants when they become of age, respec- 
tively, retaining out of the share of each one-third of the costs of 
this suit. It must reserve to the complainants the right to apply 
to the court for further directions as they shall be advised, if they 
cannot settle the estate amicably with the executors; but the 
account, as far as it has been taken is to be conclusive upon both 
parties. The defendants are also to be at liberty to apply to the 
court from time to time as they shall be advised, for directions 
in relation to the execution of their trust; giving the usual notice 
of such application to the complainant who is of age or to his 
solicitor, and to the guardian of the infants. The right is also- 
to be reserved to each of the complainants who arc infants, at any 
time within six months after they come of age, and notwithstand- 
ing any acts done by them under the decree in this cause, to apply- 
to the court for such order and dirnction in relation to the costs, 
as between them and their next friend, as may be just. 



KNICKEEBACKEII v. FliEEST 15 



KnicTcerhacher v. De Freest, 2 Paige (N. Y.) SOh. (1830.) 

Tins was an application on the part of the complainant to ap- 
point a guardian for an infant defendant. The infant had 
neglected to appear, for twenty days after the time for appearing 
as prescribed in the 22d rule had expired; and a petition was 
thereupon presented to the court agreeably to the last section of 
the 144th rule, requesting that a particular person named in such 
petition should be appointed guardian. 

The Cpiancellor: 

The court never selects a guardian ad litem for an infant de- 
fendant on the nomination of the adverse party. It is frequently 
necessary for the guardian seriously to contest the complainant's 
claim. It is his duty in every case to ascertain from the infant 
and his friends, or from other proper sources of information, what 
are the legal and equitable rights of his ward. And if a special 
answer is necessary, or advisable, for the purpose of bringing the 
rights of the infant properly before the court, it is his duty to put 
in such an answer. If the infant is a mere nominal party, or has 
no defence against the complainant, and no equitable rights as 
against his co-defendants which render a special answer necessar}', 
the general answer will be sufficient. If the infant has any sub- 
stantial rights which may be injuriously affected by the proceed- 
ings in the cause, or if the claim against him is of ar doubtful 
character, it is also the duty of his guardian ad litem to attend, 
before the court on the hearing, on the taking of testimony in the 
cause, on references to the master, and on all other proper occa- 
sions to bring forward and protect the rights of his ward. And if 
the guardian neglects his duty, in consequence of which the rights 
of the infant are not properly attended to, or are sacrificed, he 
may be punished for his neglect. H e will also in such case be 
liabl e to_the inf ant for all da mages he may sustain. Although it 
is the duty of the court to protect the rights of infants, when they 
are properly before it, so that they may be seen and fairly under- 
stood, yet it is the special duty of the guardian ad litem to bring 
those riglits directly under the consideration of the chancellor 
for his decision thereon. Tliis being the dutv of tlie ornardian, it 



16 Suits by and against Infants 

would be improper in any case to permit the complaina^nt to name 
the person who is to resist his claim against the infant. 

The revised statutes have made provision for the appointment 
of a o-uardian for an infant defendant in courts of common law, 
where he neglects to have one appointed for himself. (3 E. S. 
447, § 10, 11.) It is therefore advisable that the proceedings in 
this court should conform to the spirit of those provisions. There 
a guardian is not to be appointed for an infant, on the application 
of the adverse party, until the infant defendant has been duly 
notified and required to procure one to be appointed for himself. 
When the complainant applies for the appointment of a guardian 
for an infant defendant, under the last clause of the 144th rule, 
he will be entitled to an order appointing such person as shall 
then be designated by the court guardian ad litem, unless the 
infant, within ten days after service of a copy of such order, shall 
procure a guardian to be appointed for himself; and shall give 
notice thereof to the complainant. Such service may be made on 
the infant, or at his place of residence, in the usual manner, if he 
is of the age of 14 years or upwards. If he is under that age it 
should be served on his general guardian, or on his relative, friend 
or other person, with whom he resides. At the expiration of the 
ten days, on filing an affidavit of the service of the order, and that 
no notice of the appointment of a guardian ad litem has been 
received, the complainant may have an order of course that the 
former order for the appointment of the guardian named by the 
court, be made absolute. 

In partition causes, where security is required from the guardian, 
the order must require the infant to procure a guardian to be 
appointed and to file the requisite security within the ten days, 
or the order for the appointment of the person named by the court 
will be made absolute, on his filing such security. \YheTe the in- 
fant is a non-resident, special directions must be given by the 
court as to the manner of serving the order, if any notice thereof 
shall be deemed requisite. 

In this case James Porter is appointed guardian ad litem, if 
the infant defendant sliall not procure one to be appointed for 
himself within ten days. 



.J^ 



Enos v. Capps 




Ems V. Cam)s, 12 III. 25 

This was a- bill in chancery filed by Capps against the plaintill'V*'^ ^ A ^ 
in error and others. The bill charges that Capps had an equitablctrl J^v*/ 
interest in certain lands, which Pascal P. Enos held as trustee for(>^w 
one Moore, and of which he died seized. That Moore and the 
heirs of Enos, are combining, etc., to deprive Capps of the land. 
P. P. Enos, deceased, and left a widow and several children, who 
were all made parties. 

This writ of error is prosecuted by Susan P. Enos and Julia R. 
Enos, who are respectively under the age of twenty-one years, act- 
ing by Pascal P. Enos, the younger, as their next friend. 

The decree sought to be reversed was rendered by Ford, Judge, 
at September, 1836. 

Treat, C. J.: 

This was a suit in chancery brought in 1834, by Jabez Capps 
against John Moore, William S. Hamilton, Salome Enos widow 
of Pascal P. Enos, deceased, and P. P. Enos, Z. A. Enos, M. M. 
Enos, S. P. Enos, and J. R Enos, his heirs at law. The heirs were 
then all minors. The bill set up an equitable title in the com- 
plainant to a tract of land, of which Pascal P. Enos died seized; 
and it contained a prayer that the heirs might be required to con- 
vey the legal estate to the complainant. Process was served on all 
the defendants except Z. A. Enos, S. P. Enos and J. R. Enos. At 
the October term, 1835, Salome Enos was appointed guardian ad 
litem for the infant defendants; and at the September term, 1836, 
the bill was taken for confessed against all of the defendants, and 
a decree entered, requiring Salome Enos to convey to the com- 
plainant all of the interest of the heirs in the land. In 18-47, a 
writ of error for the reversal of the decree was sued out in the 
name of all of the defendants. Tlie complainant pleaded, that 
more than five years had elapsed between the entering of the 
decree and the suing out of the writ of error; to which the de- 
fendants replied, that two of the heirs were still infants, and within 
the saving clause of the statute. This court sustained a demurrer 
to the replication, and dismissed the writ of error. The decision 
was put on the ground that, as any one or more of the defendants 



18 Suits by axd against Infants 

might under our statute ha^ve removed tlie case into the Supreme 
Court, by appeal or writ of error, and as some of them had lost 
their right to do so by lapse of time, they should not be permitted 
to avail themselves of the nonage of their co-defendants, to accom- 
plish indirectly what the law would not allow them to do directly : 
See -i Gilman, 315. This writ of error is prosecuted by S. P. Enos 
and J. K. Enos, who are still minors, and within the protection 
of the statute. 

The decree was unquestionably erroneous. No answer was ever 
filed bjjhe_£u ardian ad litem nor was any proof introduced to _siis- 
tain the averments of the bill. I^either a defau lt, no r a decree pr o 
confesso can bejak en against an inf ant defendant;_Therejnust_be 
a^guardian ad Ui £m ap pointedjor him, and the guardia nLJBB§t fije 
an_answer ; and^t he complainan t must th en make fu ll proof_of ^is 
rightj o the relief c laimed. Even where the answer of_Jh£_^guard- 
ian admits the bill to be Jrue^ the^complainant^ must prove the 
Fruthofjiis^allegat ions with the same str ictness^asjf the answer 
had interposed a direct and positive denial : McCIay v. Norris, 4 
Gilman, 370; Hough v. Doyle, 8 Blackford, 300. The decree, 
then, as to the present plaintiffs in error cannot l)e sustained. 



Bartlctt V. Batts, IJf Ga. 539. (ISoJ,.) 

Trespass, &c., in Lee Superior Court. Decision by Judge Love, 
November Term, 1853, 

William N. Batts brought his action for trespass &c. vs. William 
IST. Bartlett. The infancy of the plaintiff being suggested, counsel 
for plaintiff moved the appointment of a guardian ad litem, for 
the purpose of prosecuting said suit; which motion was granted, 
and the Hon. Lott Warren was so appointed. [The father and 
natural guardian of the plaintiff not residing in this State.] 

This decision is assigned as error by the defendants below, and 
plaintiff in this Court. 

By the Court. — Benning, J., delivering the opinion. 

As to suits by infants, this seem;? to have been the state of the 
Law of England, at the time when that Law was introduced into 
Georgia. 

Process might ho. sued out by tbe infant alone, l)nt the declara- 



Bartlett v. Bates 19 

tion could not regularly be filed before a next friend to the infant 
had been appointed by the Court, for prasecuting the infant's 
suit. If the declaration was filed before such a next friend had 
been appointed, the defendant might, at his option, refuse to 
plead, or he might go on with his defense. If he chose to go on,i 
A and did go on until a verdict had passed against him, he lost alll 
right to object to the non-existence of a next friend in the suit. 
That after, verdict had become a matter which was cured by the I 
Statutes of jeofails. 

If not clioosing to go on, the defendant refused to plead to the 
declaration, or after pleading, refused to take any other of the 
steps to be taken by defendants before verdict, the Court would 
not comi)el him to advance ; but neither would it dismis s _the in- 
fant's suit. It would j ucrely, at that stage of the case, appoint a^ 
next friend to__the_ inf ant ; and ha ving appointed one, it would 
consider th e case as standing in th e condition_ in whichit would 
have stood, h ad a next friend been regularly appointed at the fi igt 
momen t, at wh ich one might prope £ly_ha ve been a ppointed. 

Tlie suit, although attended by a next friend, was the suit of 
the infant's. The next friend was merely an officer of the Court, 
apix>inted by the Court to look after the interests of the infant. 
He was not a) party to the suit. (Macpherson on Inf. 353. 1 
Tidd Pr. 99. 2 Saund. Eep. 117, f note (i.)— Flight v. Bodand, 
4 Russ. R. 298. Sinclair v. Sinclmr, 13 Mees & W. 640. 

[1.] Upon the whol e, it seems very s afe to say, that a suit 
c^menced_aiid 4)rosecuted- hyL_aii_inianL^alQn£»_is_ji ot absolutely ! 
void; an d although_de££ati££_nLJganting^ a next friend, the d efe_ct 
is one which, before verdict is amendable, and after verdict is 
cured. 

[2.] The father of the infant is not the only person that is 
eligible to the place of next friend. Any other may be appointed 
by the Court, in its discretion. And when the father can be a 
witness for the infant, or when he neglects the interests of the 
infant, if another is appointed, it is done in the exercise of a wise 
discretion. (1 Tidd. Pr. 99, 100. 1 Danl. Ch. Pr. 94, 95.) 

There does not appear to be any material difference between 
a next friend and a guardian, ad litem. (1 Tidd., 99, 100. — 
Macpherson on Inf. 352, 353.) 

No error is apparent in the record in this case; and there- 
fore, the decisions of the Court below ought to be affirmed. 



,K^./^ 



2^ }J^ «. §^'I'J-'S BY AND AGAINST INFANTS 




'^ n c^ Johnson v. ^Yaterllouse, 152 Mass. 5S5. flSOl.) 

. . /^ ctWrit of error to reverse a judgment of the Superior Court, 
rendered in an action of tort to recover for personal injuries occa- 
sioned to the defendant in error by a dog owned by the plaintiff 
in error. The record showed that the answer in the original action 
contained a general denial, and alleged that the defendant at the 
time of the issuing out of the plaintiff's writ "was and is under 
twenty-one years of age." The second paragraph of the plea was 
as follows: "And further says that the plaintiff was a minor, 
as alleged, at the time of said judgment, and that he had no 
probate guardian or legally appointed guardian ad litem; but 
that he was in fact represented and defended in said action, in 
which judgment was recovered, by his father and mother, and that 
said action was twice tried by a jury, and at both trials the father 
and mother were present in said Superior Court, and were repre- 
sented by counsel, and defended said action on behalf of said 
p^itioner." 
irkJL f^ At the hearing, before Field, J., the facts contained in the 
' '^'\ second paragraph of the plea were admitted to be true, and the 
^ judge reserved the case for the consideration of the full court. 




y. 



a/^, C. Allen, J.: 

~s riy Tl^^ general rule is well established, that a judgment cannot 

)t/^ -ilT properlybe rendered against an int anF defe ndan t in a civil s uit, 

A p unless he has a guardian who may defend the suit in h isJ jeFalf ; 

^ \ tP and if a judgm en t" is so rendered, the infant is entitled t o maintain 

i/^ a writ of error to avoid the same. Crockett v. Drew, 5 Gray, 399. 

>/< Swan V. Horton, 14 Gray, 179. Farris v. Richardson, 6 Allen, 

> ^'^ — 118. Mansur v. Pratt, 101 Mass. 60. Cassier's case, 139 Mass. 

^ ^ In the present case, the plea avers that the plaintiff in error 

^\( ^^^ ^^ infant at the time of the rendering of the judgment, and 

\k/ ^^^ °° probate guardian or legally appointed guardian ad litem,, 

j^ but was in fact represented and defended in the action by his 

^^ father and mother, who were present in court at the trial, and 

■/ir ( » were represented by counsel, and defended the action on his be- 

y^ / &. ' half, ^he defendant in error contends that these facts will supply 

r 




Johnson v. Wateuiiouse 21 

the want of a guardian regularly and formally appointed, and that 
under these circumstances the infant is not entitled to maintain 
his writ of error. 

Such appears to be the rule adopted in Vermont. Priest v. 
Hamilton, 2 Tyler, 50. Wrisley v. Kenyan, 28 Vt. 5. Fuller v. 
Smith, 49 Vt. 253. The case cited from Mississippi does not 
appear to us to go so far, as there a husband was authorized by 
statute to appear for his infant wife, so that no guardian ad litem 
for her was deemed necessary. Frishy v. Harrisson, 30 Miss. 452. 
Xo other decision has been cited by counsel which goes so far as 
the Vermont cases, and after some examination we have found 
none. The practice of having a regularly appointed guardian rests 
on good reasons. It has been said that the duty of watching over 
the interests of infants in a litigation devolves in a considerable 
degree upon the court. Bank of United States v. Ritchie, 8 Pet. 
128, 144. This duty is performed in the first instance by seeing 
that an infant is represented by a guardian who is suitable to 
protect his interests in the particular case. The father is usually 
a proper person to act as such guardian, but not always. There is 
an obvious advantage in having the fitness of the person who is 
to act as guardian determined in, the first instance, rather than 
after the trial is over. It was held in Brown v. Severson, 12 Heisk. 
381, that where an infant's mother, who was named as his guar- 
dian, in his father's will, had appeared in a suit as his guardian, 
and answered as such, and had been recognizeil by the court as 
guardian, the judgment should not be set aside, though no formal 
appointment as guardian appeared of record. In the case now 
before us, the infant's parents did not file an answer as his guar- 
dians, nor assume to act formally as such, and there is nothing 
to show that the court recognized them as his actual guardians, 
or acted upon the assumption that they were such. They were 
simply his parents. It is la jd down in Ma _cpherson on Infant^ 
353, that no legal right of p arentage or of gulirdianship Avill 
enable any one to act for the infant without an appointment a_s 
guardiaiL. If there is no guardian of an infant defendant, the 
plaintiff must bring the matter to the attention of the court, and 
see to it that one is appointed. Sican v. Ilorton, 14 Gray, 179. 
Shipman v. Stevens, 2 Wils. 50. Clarke v. Gilmanton, 12 X. H. 
515. Mason v. Denison, 15 Wend. 64, 67. In Letcher v. Letcher, 
2 Marshall, 153, the mother of infant defendants, who was also 



22 Suits by and against Infants 

herself a defendant, answered for them as their guardian ; but she 
did not appear to have been appointed to defend for them, and the 
judgment against them was reversed. See also Irons v. Crist, 3 
Mai-shall, 143 ; Searccy v. Morgan, 4 Bibb, 96 ; Pond v. Doneghy, 
18 B. Mon. (Ky.) 558. In Swain v. Fidelity Ins. Co. 54 Penn. 
St. 455, an attorney appeared for an infant at the instance of his 
mother; but this was held to be insufficient. In Colman v. North- 
cote, 2 Hare 147, Vice Chancellor Wigram refused to receive the 
answer in equity of a married woman, who was an infant, either 
separately or jointly with her husband, until a guardian should 
have been assigned to her. The fact that there are adult de- 
fendants joined with an infant defendant, and that all appear 
by the same attorney, will not avail to prevent the infant from 
obtaining a reversal of the judgment. Goodridge v. Ross, 6 Met. 
487. Castledine v. Mundy, 4 B. & Ad. 90. 2 Saund. 212a, note 4. 
The father of an infant soldier is not entitled to his bounty money, 
nor to money paid for his enlisting as a substitute in the army. 
Banks v. Conant, 14 Allen, 497. Kelly v. Sprout, 97 Mass. 169. 
Taylor v. Mechanics' Savings Bank, 97 Mass. 345. Nor has a 
father as such a right to demand and receive a legacy to his 
infant child. Miles v. Boy den, 3 Pick. 213, 218. Oenet v. Tall- 
madge, 1 Johns. Ch. 3. When an infant sues by prochein ami, in 
theory of law the prochein ami is appointed by the court, and his 
authority to act may be revoked by the court. Guild v. Cranston, 
8 Cush. 506. 

It seems to us that it is more in accordance with the general 
current of decisions, and with sound principles, to hold that the 
facts stated are insufficient to show that the plaintiff in error is 
bound by the judgment rendered against him. Certainly he ought 
not to be bound by the appearance of his father and mother for 
him, unless in point of fact they were suitable persons to repre- 
sent him in the particular case, and to defend his interests; and 
the proper time for making the inquiry whether they were so is 
past. The original answer disclosed the fact of infancy, and the 
original plaintiff, the present defendant in error, might have had 
a guardian ad litem appointed by making an application to the 
court. 

According to the practice under the statutes of this Common- 
wealth, even where a judgment is found to have been erroneous by 



McDermott v. Thompson 23 

reason of an error in fact, the entry must be judgment reversed. 
Pub. Sts. c. 187, § 2. Packard v. Matthews, 9 Gray, 311. 

Judgment reversed. 



McDermott v. Thompson, 29 Fla. 299. (1892.) 

Appeal from the Circuit Court for Monroe county. 
The facts in the case are stated in the opinion of the court. 
(Judge Malone, of the Second Circuit, sat in the place of Mr. 
Chief Justice Eaney, who was disqualified.) 

Taylor, J. : 

On the 20th day of Januar}^, 1883, John L. McDermott filed 
his bill in equity in the Circuit Court of Monroe county, Sixth 
Judicial Circuit, against John E. Thompson, as executor of the 
will of Olivia Gibbons, deceased, and against George Edward and 
Tliomas Eugene Gibbons, minor children of Olivia Gibbons, de- 
ceased, praying that the last will of Oliviai McDermott, who was 
formerly, before her marriage with McDermott, called Olivia 
Gibbons, made before her marriage with McDermott, be set aside 
as illegal and void, and for an accounting by John E. Thompson 
as the executor of such will, &c. 

John E. Thompson, as executor, answered. Testimony was 
taken and the cause submitted to the chancellor, and a final decree 
therein was rendered in the court below on the 24th of April, 
1882, setting aside the will and declaring it to have been revoked 
because of the fact that it was made by the testatrix prior to her 
second marriage, devising all of her property to children by 
former marriage, and having had issue of a son by her second 
marriage with McDermott who was not provided for by said will. 
From this decree the cause was appealed to this court, and this 
court at the January Term, 1883, rendered a decision therein (19 
Fla., 852) reversing the decree of the court below because of the 
failure to make the minor children of Olivia Gibbons by her first 
marriage parties to the suit by proper service upon them of process 
in the cause, and because of the want of proper answer for such 
minoi-s through a guardian ad litem. In the former decision of 
this court in the cause it was distinctly decided that the subpoena 
in the cause should be served upon the minors in person, and 



y 



24 Suits by and against Infants 

u])on a guardian ad litem for them appointed by the court, and 
that the service on the minors should be in the presence of their 
legal guardian, if they have one, or in the presence of such person 
as had for the time being the actual care or custody of such minors. 
After the decision of this court subpoena seems to have been issued 
to such minors, but the return of service thereof is defective be- 
cause it does not show the names of the minors upon whom it was 
(served, neither does it show that it was ever served upon any 
guardian ad litem for such minors appointed by the court. On 
the 2d day of June, 1883, after the service of subpcena on the 
minors, of which the imperfect return was made as aforesaid, 
G. Bowne Patterson, as guardian ad litem for the minors, George 
E. and Thomas E. Gibbons, interposed a demurrer to the bill. 
This demurrer was subsequently on September 11th, 1884, sus- 
tained by the court below, and the bill dismissed; and from this 
order the cause is appealed a second time to this court. How, or 
by what authority, G. Bowne Patterson got into the cause as guar- 
dian ad litem for these minors, we have been unable to discover 
from anything in the record. Therejsno order of cou rt ap point- 
ing and authorizi ng ^ him to act in that capacity, an d_ there_is_no 
subpoen a directed too r served upon him, citing him in th at or any 
other capac ity_to appear and answer _forL ^nfl nn bphg VP^ of said 
minors. We are constrained to conclude from this status of the 
record that the requirements of the former decision and mandate 
of this court have not been complied with, and that the said minors 
are not yet properly before the court. With that decision we are 
fully in accord. It pointed out with sufficient particularity what 
was necessary to be done in order to get the minors properly before 
the court; 1st, that a guardian ad litem should be appointed by 

■ ,. . |the court for such minors; 2d, that such minors should be per- 
\^J^ sonally served with subpoena in the presence of their legal guar- 

,^ (dian, or in the presence of such person who had the care and cus- 
tody of them; and 3d, that such guardian ad litem should be 
served with subpcena in the cause. None of these requisites have 
been complied with. It follows that all the proceedings and orders 
had and made in the cause since the former decision of this court 
in the premises must be set aside and reversed, with directions to 
supjjly tlie omissions in the proceedings therein, and herein jwinted 
out, and it is so ordered. 



DoRSiiEiMER V. Roorback 33 

Suits by and against Persons ]\Ientally Incompetent. 

Dorsheimer v. Roorback, 18 N. J. Eq. 438. (18G7.) 

This was a motion on jjart of the defendant to order the bill to 
be taken from the llles, on the ground that the complainant was 
an idiot, and the bill was filed in her name by one Couse, as her 
next friend, he not having been appointed her guardian upon 
inquisition found, or been authorized by this court in this case 
to file the bill as her next friend. 

The Chancellor: 

The motion is made by the defendant, and not on part of the 
idiot, or any one in her behalf. But in this case, where it is alleged 
in the bill that complainant is an idiot a nativitate, and unable 
to manage her affairs, and sues by a person calling himself her 
next friend, without any appointment, if the proceeding is not 
according to law, and not binding on the idiot, the defendant 
must make this motion to protect himself from being obliged to 
defend a suit brought without authority. 

Idiots and lunatics may sue at law ])y next friend, to be ap- 
pointed by the court; but in equity, must sue by the committee 
or guardian of their estates duly appointed. When the idiocy or 
lunacy is not partial, and, in all cases, when it has been found on 
an inquisition, a court of equity will not allow a suit to be brought 
by an idiot or lunatic in his owm name, or that of a next friend, 
nominated by himself, or appointed by the court; his guardian 
or committee must join in the suit. When a person is only par- 
tially incapable, as one merely deaf and dumb, the court will 
appoint a next friend to be joined with him in the suit, and to 
conduct it for him. 

The authorities all agree that idiots and lunatics must sue in 
equity, by their committees or guardians. In this state, the per- 
sons to whom the estates of idiots and lunatics are committed 
upon inquisition found, are styled their guardians; in many of 
the other states, and in England, they are called their committees. 

Shclford on Lunatics, 415, says: "Idiots and lunatics must sue 
in courts of equity by their committees." In Story's Eq. PI., § 64; 
1 Daniell's Chan. Pr. (3d ed.) 79; Stock on Non Compotes MenWs, 
33 ; Mitford Eq. PI. 29, and 2 Barb. Chan. Pr. 224, the same rule 



26 Suits — Persons Mentally Incompetent 

is laid dowu; and it is further stated by some of these authorities, 
that a suit ought not to be brought, even by the committee, with- 
out the direction of the court, ujjon an inquiry made, whether it 
is for the benefit of the idiot or lunatic. I find no case or authority 
in which it is held that they may sue by a next friend, either a 
volunteer or appointed for the purpose. 

The only semblance of authority found, is the passage in Shel- 
ford 416, and copied in 1 Daniell's Ch. Pr. 81: "If a person 
exhibiting a bill, appear upon the face of it to be either an idiot 
or a lunatic, and no next friend or committee is named in the bill, 
the defendant may demur." Daniell cites Fuller v. Lance, 1 Ch. 
Cas. 19, which has nothing in it on this point. Shelf ord cites 
Mitford on PI. 153, which says: "If an infant or a married 
woman, an idiot or a lunatic, appear to be such on the face of the 
bill, and no next friend or committee is named, the defendant may 
demur." 

Lord Redesdale evidently intends to refer singula singulis, and 
does not mean to imply that a next friend is proper for an idiot 
or lunatic, any more than that a committee is necessary for an 
infant or feme covert. This passage has been adopted by the other 
two writers, without noticing that the words next friend were 
not applicable to the subject of which they were then treating — 
idiots and lunatics. 

The rule is a wise one. It should not be permitted that any 
volunteer should, by styling himself the next friend of an idiot, 
bring a suit for him, and lose or jeopard his rights by an action 
brought inopportunely, and it may be, prosecuted without skill 
or honesty. The idiot would have no security for the amount 
recovered by such next friend, and the defendant could not pay 
him, or settle with him, safely. 

The motion to take the bill from the files must be granted. 



Boughan v. Morris, 87 III. App. 642. (1899.) 

Statement. — This is an appeal from an interlocutory order 
appointing a receiver. 

Tlie bill of complaint was exhibited by James L. Morris, by 
Arthur Morris, his brother and next friend. Tlie bill alleges that 
J^mes L. Morris is an insane person; that he is a widower and 



RoDGiiAN V. Morris 27 

had no children, and that Arthur Morris, who appears as his next 
friend in the suit, and George Morris, his two brothers, are his 
next of kin. The bill also alleges that the defendant, Michael 
J. Roughan, procured the signature of James L. Morris to a certain 
pretended power of attorney, giving the defendant full control and 
dominion over all the property of said Morris, consisting of a 
large l)usiness and real estate, improved and rented; that for a 
considerable space of time said Iloughan had been in complete 
and undisturbed possession of said property; that said Roughan 
had made no report of any of his doings in the premises; that 
by reason of his management the business was becoming deeply 
involved, was likely to be ruined, and the income of Morris de- 
stroyed, unless the same was cared for; that the creditors of the 
complainant were refusing to grant any more credit to the busi- 
ness so long as it was under the control of the defendant; that 
the landlord was about to levy a distress warrant for non-payment 
of rent, and that if the assets of the complainant were properly 
applied this would be wholly unnecessary; that defendant had 
collected and disposed of, to his own use, large sums of money 
belonging to complainant; that the defendant fails and neglects 
to pay the debts of the estate, and willfully and maliciously per- 
mits the estate to become more and more indebted ; that the de- 
fendant is insolvent, irresponsible, and not a proper person to 
conduct said business ; that about five weeks must necessarily elapse 
before the matter of the insanity of Morris can be heard in the 
Probate Court of Cook County, where a petition has been filed 
by Arthur Morris and George Morris, brothers and next of kin 
of complainant, asking for the appointment of a conservator. 

The prayer of the bill is inter alia for the appointment of a 
receiver to collect the rents of real estate owned by James L. 
Morris, and to manage the business of said Morris until a con- 
servator can be appointed by the Probate Court of Cook County. 

Upon the application for appointment of a receiver, a hearing 
was had upon bill of complaint and affidavits, and oral testimony. 
An interlocutory order was entered appointing one Frank D. 
Kitchner as receiver. This appeal is from that order. 

^Ir. Presiding Justice Sears delivered the opinion of the 
court. 

But one question of controlling importance is prcsontod upon 



28 Suits — Persons Mentally Incompetent 

this appeal, viz.: whether the suit may be entertained for the 
purpose indicated when commenced by an insane person by his 
next friend. 

The grounds for the intervention of a court of chancery are 
here ample, if the suit were brought by a complainant of sound 
mind and in his own name. The relation of the parties, the 
insolvency of defendant, the refusal or failure to account, and 
the waste alleged, constitute sufficient ground for intervention 
of a court of equity, if the suit were brought by John L. Morris 
of sound mind. Tlie question then is, he being a lunatic, could 
the suit be brought by his brother as his next friend? 

The statute, Sec. 13, Chap. 86, R. S., provides as follows in rela- 
tion to conservators: 

"He shall appear for and represent his ward in all suits and 
proceedings unless another person is appointed for that purpose, 
as conservator or next friend; but nothing contained in this act 
shall impair or affect the power of any court to appoint a con- 
servator or next friend to defend the interests of said ward im- 
pleaded in such court, or interested in a suit or matter therein 
pending, nor its power to appoint or allow any person as next 
friend for such ward to commence, prosecute or defend any suit 
in his behalf, subject to the direction of such court." 

Could the court then allow Arthur Morris, as next friend, to 
maintain this suit for the purpose disclosed by the bill? 

It is contended by appellant that the question is determined 
adversely to the maintenance of the suit by the decision of our 
Supreme Court in Covington v. Neftzger, 140 111. 608. If the 
purpose of this suit were merely the termination of the agency 
created by the power of attorney to appellant and for an account- 
ing, we think it clear that the case would be governed by the 
Covington case, and that the bill would not lie for such purpose 
when brought by one volunteering as next friend. But here the 
purpose of the bill is merely to conserve the estate until a con- 
servator might be appointed by the Probate Court. 

It would seem upon principle that a court of chancery should 
have the power to protect the estate of an insane person until 
a conservator could be appointed by the Probate Court, to which 
jurisdiction the appointment of conservators of insane persons is 
committed l)y the law of this State. The jurisdiction of the 
chancellor hero, to thus appoint this receiver, can not be maintained 



Rough AN v. Morris 29 

upon the ground alone that the sul)ject-mattor of the suit is a 
matter proper for equitable cognizance, that is, the agency, the 
waste, and the right to an accounting, for in respect to such relief 
as the complainant might be entitled to in these matters, the suit 
could not be maintained by one volunteering as next friend, un- 
der the decision in the Covington case. But it would seem that 
the suit may be maintained under the general chancery power to 
protect the estates of lunatics, and for the limited purpose of such 
protection oiily as could be shown to be necessary until a con- 
servator might be appointed by the Probate Court. 

In England the care of lunatics and their estates was vested 
in the sovereign, and although the exercise of this care and control 
was delegated by the sovereign to the chancellor, yet it was always 
treated as a special prerogative of the crown, and not as a matter 
within the general chancery powers. 

The question of the inherent powers of our courts of chancery 
in relation to this subject has been treated differently in different 
States. In some States it has been held that the subject had so 
far become a matter of chancery jurisdiction in England, that 
when by constitution or statute the powers and jurisdiction of 
the Court of Chancery of England were given to our courts of 
chancery, this element of jurisdiction was thereby conferred. In 
others it has been held that the power which the English chan- 
cellor exercised in this behalf was not a judicial power, but a 
delegated prerogative right, derived from the crown, and by special 
delegation in each instance. But the courts so holding have, at 
least in some cases, also held that when there was no special pro- 
vision by the commonwealth giving courts of chancery this juris- 
diction and power, yet it was to be considered as arising ex 
necessitate for the protection of the persons and property of the 
commonwealth. 

Whether the conclusion that our courts of chancery have this 
jurisdictional power is reached by the one process of reasoning 
or the other, is of little importance. It may be regarded as well 
settled in our State that the power exists in a court of chancery 
to conserve the estate of a lunatic, when such action is necessary. 
Dod(]c V. Cole, 97 111. 338. 

The question then is, whether such protection may be extended 
by a court of chancery for the period only which must intervene 
before a conservator can be appointed by a court of probate. The 



30 Suits — Persons Mentally Incompetent 

only contention to the contrary is based upon the decision in the 
case of Covington v. Neftzger, supra. The gist of the decision 
in that case is expressed in the following language of the court: 
"A person suing as next friend has no authority to bind the 
lunatic or his estate. * * * It would be a dangerous rule to' 
hold that such a person might, at his own will or discretion, come 
into court for the purpose of impeaching a transaction in which 
he has no interest, as trustee or otherwise, and over which he has 
no control. * * * ^Ye think it is a well settled principle that 
the person who brings a bill to avoid the deed of an insane person, 
must have power to act for such person and bind him and his 
estate." 

The court also considered whether the rule of the trial court 
upon Covington, the next friend, to file a bond for costs, amounted 
to an order authorizing him to sue. It seems clear that the court 
did not intend to hold that the trial court might not in any case 
"'allow'- a suit to be maintained by a next friend, and did not 
construe the section of the statute above set forth to that effect. 
AVhat the decision does hold is that a volunteer can not thus elect 
to set aside the deed of the lunatic. And there is a distinction 
indicated between an attempt to procure equitable relief in chan- 
cery by setting aside a deed for a lunatic who appears only by 
next friend, and an effort merely to protect the estate of the lunatic 
through a suit brought by next friend until a committee or con- 
servator can be appointed to represent him. 

The case of Jones v. Lloyd, 18 Law Eep. Eq. Cas. 265, which 
is cited in the Covington case and quoted from for the express 
purpose of illustrating this distinction, would seem to precisely 
apply to the conditions here presented. In that case the court 
said: 

"Can a suit be instituted by a lunatic, not found so by inquisi- 
tion, by his next friend ? I have no doubt it can. There is author- 
ity upon the subject, and it seems to me so distinct that I have no 
occasion, really, to refer to the reason, for I think the cases of 
Ligld V. Light (25 Beav. 248), and Bcall v. Smith (Law Rep. 8 
Ch. 85), are such authorities; but independently of the unre- 
ported case of Fislier v. NelJcs, where I know the point was dis- 
cussed, and independently of authority, let us look at the reason 
of the thing. If this were not the law, anybody might, at his will 
and pleasure, commit waste on a lunatic's property, or do damage 



ROUGIIAN V. Mouuis 31 

or serious injur}' and ann()\aiic(- to him or his property, without 
there being an}' remedy whatever. In the first place, the Lord 
Justices or the Lord Ciianeelior are not always sitting for applica- 
tions in lunacy. In the next place, if they were, everybody knows 
it takes a considerable time to make a man a lunatic by inquisi- 
tion, * * * Is it to be tolerated that any person can injure 
him or his property without there being any power in any court 
of justice to restrain such injury? Is it to l^e said that a man 
may cut down trees on the property of a person in this unfortunate 
state, and that because no effort of his can be made, no member 
of his family can file a bill in his name as next friend, to prevent 
that injury? Is it to be allowed that a man may make away with 
the share of a lunatic in a partnership business, or take away the 
trust property in which he is interested, without this court being 
able to extend its protection to him by granting an injunction at 
the suit of the lunatic by a next friend, because he is not found 
so by inquisition ? I take it those propositions, when stated, really 
furnish a complete answ'er to the suggestion that he can not main- 
tain such a suit. Of course they do not answer the question as to 
how far he may carry it; but that he can maintain such a suit 
^for the purpose of protection, for the purpose of ol)taining, as in 
this case, a receiver, I should think there can be no doubt what- 
ever." 

Other decisions holding to like doctrine are: Beese v. Reese, 
89 Ga. 645; Whetstone v. Whetstone, 75 Ala. 495. 

We are of opinion, therefore, that while under the decision in 
the Covington case this suit brought by next friend might not be 
maintained for the ultimate purpose alone of annulling the deed 
by which the agency of the defendant was created, nor for the 
obtaining of an accounting alone, yet it may be maintained for the 
sole purpose of protecting the estate of the lunatic, through a re- 
ceivership, until a conservator can be appointed to act for him. 

The order is affirmed. 






^}^ 



%r 




i^ CHAPTER II. 



^r^y' ^^ PARTIES TO A SUIT IN EQUITY. 



'^ ^ Parties Classified. 

^* * Chadbourne v. Coe, 10 U. S. App. 78. (1892.) 

Eeuben W. Chadbourne, a citizen of the State of Wisconsin, 
filed his bill in equity in the Circuit Court of the United States 
for the District of Minnesota against Orlen P. Whitcomb, a citi- 
zen of the State of Colorado, and James N. Coe, a citizen of the 
State of Minnesota, alleging that Whitcomb was indebted to the 
complainant in a sum exceeding five thousand dollars upon certain 
promissory notes set out in the bill ; that Whitcomb was insolvent, 
and that to hinder, delay and defraud his creditors he had by 
deeds conveyed certain real estate, and by bills of sale transferred 
certain personal property, to Coe upon certain secret trusts in 
writing, which instruments creating the alleged trusts are made 
exhibits to the bill. The last in date of these alleged trust agree- 
ments included all the property, real and personal, conveyed and 
transferred by Whitcomb to Coe, and the powers conferred and 
trusts imposed on Coe thereby are as follows: 

"Now, in consideration of the premises I, the said Orlen P. 
Whitcomb, hereby authorize and fully empower the said James 
N. Coe to sell, exchange or dispose of any and all of the said 
property mentioned in the agreements hereinbefore referred to, 
whicli has not been already disposed of, together with all of the 
personal property hereby conveyed to said Coe, to such person 
or persons, and for such prices and on such terms as said Coe shall 
sec fit, hereby granting unto said Coe full and exclusive authority 
to manage, dispose of and control said property or any thereof as 
he shall see fit, and hereby fully investing him with all the rents, 
profits and increase of said property, both real and personal, and 
giving him full authority to execute and deliver any and all con- 
veyances or instruments necessary or proper to convey or dispose 
of, or in the management of, the same without obtaining my_ con- 
sent thereto; and the net proceed^;, either cash, securities or other 

32 



Chadbourne v. Coe 33 

property derived from the sale of any of said property, or the 
rents, profits or increase thereof, said Coe is hereby authorized and 
directed to liold and apply, when reduced to money, on any sura 
or sums of money now due or hereafter owing to said Coe from 
said Whitcomb, and on any indebtedness incurred in the manage- 
ment of said property or taxes paid, and on any and all liabilities 
now or at any time hereafter incurred by said Coe for said Whit- 
comb, as surety or otherwise, and after the satisfaction and pay- 
ment of all such claims and indebtedness whatsoever, the balance 
thereafter to be paid to said Whitcomb." 

It is alleged that Whitcomb has no other property out of which 
the complainant can make his debt. The prayer of the bill is 
that the conveyances of Coe be set aside, that the trust agreements 
be declared void, and that Coe be required to account; that the 
real estate be sold and the complainant's debt paid out of the pro- 
ceeds and the moneys received from Coe on the accounting. The 
complainant died, and the suit was revived in the name of Cath- 
erine E. Chadbourne and Smith W. Chadbourne, his executors. 
Whitcomb appeared specially and filed a plea to the jurisdiction 
of the court upon the ground that he was a citizen of Colorado, 
which plea was sustained, and the bill was dismissed as to him. 
No complaint is made of this ruling, touching which the counsel 
for the appellants in their brief say: "\Miitcomb was originally 
made a defendant, but he was dismissed upon filing a plea to the 
jurisdiction, and, as we think, properly, under the act of August 
13, 1888, defining the jurisdiction of Federal courts, and no excep- 
tion is taken to the dismissal." After the suit was dismissed as to 
Whitcomb, Coe filed a demurrer to the bill for want of proper 
parties, which the court sustained and entered a decree dismissing 
the bill without prejudice, and the complainants appealed. In 
the brief of the counsel for the appellants it is said: "The only 
question for the consideration of this court is whether or not the 
Circuit Court erred in sustaining the demurrer upon the ground 
that Whitcomb is not a party to the action." The opinion of the 
Circuit Court dismissing the bill is reported in 45 Fed. Rep. 822. 

Caldwell, Circuit Judge, after stating the case as above, de- 
livered the opinion of the court. 

The Supreme Court of the United States divide parties to suits 
in equity into three classes: First, formal parties; Second, neces- 



34 Parties Classified 

sary parties; Third, indispensable parties. Formal parties are 
those who have no interest in the controversy between the imme- 
diate litigants, but have an interest in the subject-matter which 
may be conveniently settled in the suit and thereby prevent further 
litigation. They may be parties or not at the option of the com- 
plainant. Necessary parties are those who have an interest in the 
controversy, but whose interests are separable from those of the 
parties before the court, and will not be directly affected by a 
decree which does complete and full justice between them. Such 
persons must be made parties, if practicable, in obedience to the 
general rule which requires all persons to be made parties who are 
interested in the controversy, in order that there may be an end 
of litigation; but the rule in the Federal courts is, that if they 
are beyond the jurisdiction of the court, or if making them parties 
would oust the jurisdiction of the court, the case may proceed to 
a final decree between the parties before the court, leaving the 
rights of the absent parties untouched, and to be determined in 
any competent forum. The reason for this liberal rule in dis- 
pensing with necessary parties in the Federal courts will be pres- 
ently stated. Indispensable parties are those who not only have 
an interest in the subject-matter of the controversy, but an interest 
of such a nature that a final decree cannot be made without either 
affecting their interests or leaving the controversy in such a con- 
dition that its final determination may be wholly inconsistent 
with equity and good conscience. Shields v. Barrow, IT How. 
130, 139; Ribon v. Railroad Companies, 16 Wall. 446, 450; Coiron, 
V. Millaudon, 19 How. 113; Williams v. Bankliead, 19 Wall. 563; 
Eendig v. Dean, 97 U. S. 423; Alexander v. Horner, 1 McCrary, 
634. . 

I The general rule as to parties in chancery is that persons falling 
within the definition of necessary parties must be brought in for 
the purpose of putting an end to the whole controversy, or the 
bill will be dismissed; and this is still the rule in most of the 
state courts. But in the Federal courts this rule has been relaxed. 
The relaxation resulted from two causes: First, the limitation 
imposed upon the jurisdiction of these courts by the citizenship 
of the parties; and Second, by their inability to bring in parties 
out of their jurisdiction by publication. The extent of the re- 
laxation of the general rule in the Federal courts is expressed in 
the forty-seventh equity rule. That rule is simply declaratory of 



Chadbourne v. Coe 36 

the previous decisions of the Supreme Court on the subject of the 
rule. The Supreme Court has said repeatedly, that, notwithstand- 
ing this rule, a Circuit Court can make no decree affecting the 
rights of an absent person, and that all persons whose interests 
will be directly affected by the decree are indispensable parties. 
Shields v. Barrow, supra; Rihon v. Railroad Companies, supra; 
Coiron v. Millaudon, supra; Alexander v. Horner, supra; The 
Cole Silver Mining Company v. The Virginia and Gold Hifl 
Water Company, 1 Sawyer, 685. 

Can a decree be made in this case without affecting the rights 
of Whitcomb? Before the complainants can have the specific 
relief sought by the bill, the court must find and decree: First, 
that Whitcomb is indebted to the complainants in the sum of 
$5,000 more or less as alleged in the bill ; Second, that Whitcomb 
is insolvent; Third, that the deeds from Whitcomb to Coe are 
fraudulent and void as to Whitcomb's creditors; Fourth, that the 
agreement between Whitcomb and Coe relating to the sale of the 
property and an accounting for the same, and for the rents and 
profits thereof, is fraudulent and void; Fifth, that the lands be 
sold and that the proceeds of the sale be applied to the payment 
of Whitcomb's alleged indebtedness to the complainants; and 
Sixth, that Coe account for the property and its rents and profits, 
and that he pay the amount found due to the complainants on 
Whitcomb's alleged indebtedness to them. If the complainants 
are not creditors of Whitcomb, as they allege; or if Whitcomb is 
not insolvent; or if the deeds Wliitcomb made to Coe are not 
fraudulent; or if the contracts set out between Whitcomb and Coe 
are valid, the bill cannot be maintained. In the judicial deter- 
mination of every one of these issue s Whitcomb is an indis pensable 
^rty. As to some of them he is necessarily the only party in 
interest; the only party who would be affected by the decree, and 
the only party capable of making an intelligent defence. 

The contracts or trust agreements between ^^^litcomb and Coe 
made part of the bill are not fraudulent on their face. Upon 
their face they are valid agreements, under which Whitcomb can 
compel Coe to account for the property, and its rents, issues and 
profits. If the court in a suit to which Whitcomb was not a party 
should compel Coe to account for, and turn over, the property and 
money to the complainants, such a decree would be no bar to a suit 
by Whitcomb against Coe to compel the latter to account to him 



36 Parties Classified 

according to the terms of the agreement between them, and for 
this reason Coe has a right to insist that Whitcomb shall be made 
a party for his protec-tion. Alexander v. Horner, supra. 

Formerly the general rule was that a judgment must be obtained 
and execution returned 7iulla hona, or its equivalent, before a bill 
could be filed to vacate a fraudulent conveyance, and it was held 
that the debtor was a necessary party to such a bill. In modern 
times this rule has by legislation in some of the States, and by 
judicial decisions in others, undergone important modifications not 
necessary to be noticed in the decision of this case. The cases on the 
subject are collected in 3 Pomeroy's Eq. Jur. § 1-115, note 4; 
Story's Eq. PL (10th ed.), § 233, note (h) ; Pomeroy on Remedies 
and Remedial Rights, § 347. But the modern cases which go to 
the greatest length in modifying the old rule fall far short of sup- 
porting the complainants' contention in this case. In this case 
there is not only no judgment, but it is contended that the alleged 
debtor has no right to be heard on the question as to whether he 
owes the complainants anything for which a judgment should be 
rendered. 

We do not rest our decision upon the ground that a creditor 
cannot file a bill to set aside a fraudulent conveyance of his debtor 
and subject the property to the payment of his debt until he has 
obtained a judgment at law for his debt and had a return of nulla 
hona (as to which see Case v. Beauregard, 101 TJ. S. 688) ; but 
upon the ground that a creditor cannot maintain a bill to establish 
a debt against his alleged debtor, to annul the debtor's conveyances 
and contracts, and appropriate his property and money to the pay- 
ment of the creditor's alleged debt, without making the debtor a 
party of the bill seeking such relief. It is fundamental in the 
jurisprudence of this country that no court, and, least of all, a 
Federal court, can adjudicate upon the rights of one not before 
it and not subject to its jurisdiction. 

The decree of the Circuit Court is 

Affirmed. 



Brunner v. Bay City 



Brunner v. Bay City, J^O Mich. 2SG. (1^.)[ ^ -^ jj^ _ P 



Joint Plaintiffs. 




^A 



Appeal from Bay. Submitted June 8. Decided June 1/ 
Bill to set aside tax sales and vacate sewer assessment 
ants appeal. Eeversed; bill dismissed. 

Campbell, J.: '^ v /* c i ~ 

This is a bill filed by a large number of persons whose lots have , jtT » . 
been bid in by Bay City under a sewer assessment to have the sales \y /// 
set aside as illegal. The ground of illegality is that the sewer itself i ^ ^ (^ 
was not authorized to be built, nor the assessments authorized ioW Ok 
be made in the manner adopted. /, lO- '^ 

Without going at length into the question presented, we areijj^-,/ ^. 
met at the outset by a difficulty which we cannot overlook. We do a ^ (^ 
not find any warrant for any such joinder of grievances. The citytr ^ ^ 
now occupies the same position which would be occupied by anylJr 
other tax purchaser who might choose to bid off all of these parcels.i 
Each complainant would have against him a single separate^' o 
grievance, but it would not in law be a common grievance, merely^p 
because it was similar in its nature to the grievances of others 
The assertion of his title against one would be by a separate action 
and his action of ejectment could not implead any persons 
interested in the parcel it involved. Matters in which there is no 
common interest on the one side or the other are not allowed to*^ vir^ 
be litigated jointly; and while there are some classes of cases j^' ^ 

where the community of interest is not as plain as in others, we 
do not think they go far enough to warrant this suit. 

The joinder of several parties similarly interested in resisting-|b» 
a common aggressor was ordinarily allowed, to save multiplying U 
litigation, to settle once and finally the matter in contention. It ^ 
was at first strictly confined to cases where the act complained of, 
if done, or continued, would affect every one in the same way, and 
would affect all, if any. It was applied in questions of commons 
in pasturage, fisheries, and similar interests, and in questions of 
tithes, which were asserted over certain districts. It was extended 
on the same grounds to frauds or wrongs by corporate aixents 
against the interests of corporators, public and private. It was 





3S Joint Plaintiffs 

finally applied to restrain taxes and assessments, in which the 
inhabitants of localities taxed, or the owners of land in assess- 
ment districts, were sought to be charged for a common burden. 
There is no doubt that in some of these cases the rule may have 
been extended somewhat beyond the line first laid down. But in 
all of the cases which have been well considered, there has been 
one cause of grievance which at the time of filing the bill involved 
some aggressive action in which all of the parties complaining 
were involved in precisely the same way. And we have held dis- 
tinctly that in such actions, if any person set up grievances not 
of the same common nature with those of the rest, the bill could 
not be maintained. Kerr v. Lansing, 17 Mich. 34. See also 
Miller v. Grandy, 13 Mich. 540 and Scofield v. Lansing, IT Mich. 
437; YoungUood v. Sexton, 33 Mich. 406. 

In the present case it may be doubted whether the complainants 
could have joined in a suit to enjoin the assessment, however 
illegal. The chief objection underlying the whole theory of the 
bill is that the assessment was not and could not lawfully be made 
upon any general and uniform system of apportionment; but that 
each lot should be assessed, not an aliquot part of a general charge, 
but so much as it was separately benefited by the work. It is very 
evident that each complainant is interested in enlarging the re- 
sponsibilities of the rest and in diminishing his own. Instead of 
a communty of interest their interests are hostile. 

But when the assessment has been enforced by sale, we can see 
no reason why one purchaser should differ from another, or why 
the purchase of several lots should be regarded as a common wrong 
to the several lot-owners. He is not after his purchase capable 
of doing any act which can operate as a common grievance. Each 
act in the enforcement of his title is an independent and several 
injury, if it is a wrong at all, and no lot-owner is hurt by the 
wrong done to his neighbor. It would be like the exclusion of a 
person from a common or fishery, on personal grounds, and not on 
a denial of the general right. No joinder of complaints could be 
allowed in such cases. 

We think Bay City cannot be sued in this way, and that if any 
lot-owner has an equitable grievance against the sale of his lot 
actually made, he must sue for it separately. 

The decree must be reversed with costs and bill dismissed. 




Murray v. Hay 39 

CooLEY and Graves, JJ., concurred. 

Marston, C. J., being a resident tax-payer of Bay City, did not i^P^ 

sit in this case. r^ij^ " '-^ 

Murray v. Hay, 1 Barb. Cli. (N. Y.) 59. {ISJto.J'T^'^ ^\J.>^/ ^ 

This was an application, on the part of the complainants, to . ^^ Ji 
open an order entered by the defendant to close the proofs, ancF*"^^ '^\^ 
to allow farther time for the complainants to take testimony in^^^'''*^ 
this cause. And a second application was made, for leave to amen 
the complainant's bill, by striking out the name of Murray as one 
of the complainants therein. V^ 

The defendant's solicitor, on the 10th of June, 1835, entere|^ 
an order that the complainants produce witnesses in this cause/, 
within forty days after notice of the order, and served a notice jjl/^ ' \^ 
of such order upon the solicitor for the complainants the samo^*-^^^ *^ 
day. On the 18th of July, the solicitor for the complainants }^^y^ ^ 
mailed an affidavit, directed to the chancellor, and obtained his, Jt^ ii)^^- 
fiat for an order, founded thereon, extending the time to produce U/J^ '^ 

proofs until the 1st of October. The fiat was received on Mon-'' jj-^^ ,^ 
day the 21st of July, the second day after the great fire in Xewf^^Lji'^ ^ 
York; and the order was entered the same day, but was not served,' t^ ^ 
until the afternoon of the 22d, owing to the derangement oi 
business produced by the fire. Previous to the receipt of notice oil 
the order, the defendant's solicitor had entered an order to closj 
the proofs; which, under the instructions of his client, he refused, ^'^ ^t^ 
to open. The application for leave to amend was made upon th(!- Jp^^ ^ ^ 
supposition that an objection for a misjoinder of complainants . t^ /j/ 
could be sustained ; the bill having been filed by two persons, vfh^i'^^'^ltr^ f, 
were owners of different dwelling houses in severalty, having no/'^^ v. '*'[ 
joint interest in either of them, to restrain an alleged nuisanco^A^^l^*^'' 
which was a common but not a joint injury to both of the com-, ^ ^iJ^ 
plainants. / ^ ^j^ 

The Chancellor: J^ ^'-' 

The objection that the order to produce witnesses was not 
entered in the proper form is not well taken. By the practice 
of the English court of chancery, and as it formerly existed here, 
eitlier party who wished to close the proofs was obliged to enter 
a rule that the adverse party produce his witnesses; and at the 




40 Joint Plaintiffs 

expiration of the time allowed by that order, he entered the order 
nisi to pass publication. By this last order both parties were 
precluded from examining farther witnesses, after the expiration 
of the eight days, unless an order to enlarge publication had been 
obtained in the meantime. (2 Dan. Ch. Pr. 563. 1 Smith's Ch. 
Pr. 252.) The rules of this court, however, have altered the prac- 
tice so far as to allow either party to enter a forty day order to 
produce witnesses, upon which the party entering such order, or 
the adverse party, may proceed and obtain an absolute order to close 
the proofs after the expiration of the time allowed by the first 
order, unless the time shall be enlarged by a special order of the 
court. (Eule 68.) But the mere authority to one party to enter 
an order to close the proofs, upon an affidavit of the receipt of a 
notice from the adverse party of an order to produce witnesses, 
did not necessarily require a variance in the form of the first 
order. The order to produce witnesses may therefore be in the 
form originally used, requiring the adverse party to produce wit- 
nesses within forty days. Or it may be in the form contained 
in the precedents of Barbour and of Hoffman, requiring the parties 
to produce witnesses, &c. ; which is according to its legal effect, 
under the new rule of this court upon the subject. The order to 
close the proofs was therefore strictly regular; although the form 
of the preliminary order entered by the defendant did not in terms 
require the defendant himself, as well as the complainant, to pro- 
duce witnesses within forty days. For, upon filing an affidavit of 
the receipt of notice of such an order as was entered in this case, 
the complainant could himself have entered an order to close the 
proofs, at the expiration of the specified time. 

But as the complainants had actually obtained the fiat of the 
court, and had entered an order thereon, enlarging the time to pro- 
duce witnesses, within the time allowed for that purpose by the 
practice of the court, the service of which order was delayed by 
mere accident, the order to close the proofs should be opened 
upon payment of costs. The excitement and confusion neces- 
sarily produced among business men in N'ew-York by the great 
fire on the previous Saturday, is sufficient of itself to excuse, or 
account for, the delay in serving the order immediately after it 
was entered. The order to close the proofs must therefore be 
vacated, and the time to produce witnesses is extended to the 
first of November next, inclusive. And the complainants are to 



Murray v. Hay 41 

pay to the defendant's solicitor $15 for his costs of entering the 
order to close the proofs, and noticing the cause for hearing, and 
opposing this application to open such order. 

The application to amend, by leaving out the name of one of 
the complainants, should also be granted, upon such terms as 
will eirectually protect the defendant as to costs, &c.; if there 
is in fact a misjoinder of the complainants, which may be fatal 
to their suit at the hearing. Upon an examination of the ques- 
tion, however, I am satisfied there is no misjoinder of complain- 
ants, so far as the bill seeks to restrain the continuance of a nui- 
sance which was a common though not a joint injury to both 
of the parties who have filed this bill. There is no inflexible 
rule on the subject of joinder of parties in this court. But, as a 
general principle, several complainants, having distinct and inde- 
pendent claims to relief against a defendant, cannot join in a suit 
for the separate relief of each; nor can a single complainant, 
having distinct and independent claims to relief against two or 
more defendants severally, join both or all of them in the same 
bill. Tliere are, however, many exceptions to this general 
principle; and the court exercises a sound discretion in deter- 
mining whether there is a misjoinder of parties, under the par- 
ticular circumstances of the case. Thus in the case of Ken- 
sington V. White (3 Price's Rep. 164), the court of exchequer 
in England overruled a demurrer for multifariousness, which 
was put in to a bill, filed by seventy-two different underwriters 
upon policies for the defendants, upon which policies the com- 
plainants had been sued at law for their respective subscriptions ; 
the object of the bill being to enable each complainant to estab- 
lish a defence, which was common to all. And this decision 
was followed by Lord Abinger in the more recent case of MUh 
and others v. Camphell (2 Young & Coll. Exc. Eep. 389), 
where the suits against some of the complainants were upon 
ordinary policies by simple contract, and against others upon a 
policy under seal. Tliis court also sustained a bill filed by dif- 
ferent judgment creditors, having a common but not a joint in- 
terest in the relief sought by their suit, in the case of Brincl-er- 
hoff and others v. Brown and others (6 John. Ch. Rep. 130). 
And it is a common practice in this court for two or more judg- 
ment creditors, having separate judgments, to join in a suit to 
reach the equitable interests and choses in action of their com- 



42 Joint Plaintiffs 

mon debtor, after they have exhausted their remedies at law, by 
executions upon their respective judgments. 

The particular question which arises in this suit, whether two 
or more persons having separate and distinct tenements which 
are injured or rendered uninhabitable by a common nuisance, or 
which are rendered less valuable by a private nuisance which is 
a common injury to the respective tenements of each of the 
complainants, may join in a suit to restrain such nuisance, does 
not appear to have been raised in England until recently; and 
then in a single case only, wliich was not very fully considered. 
In the case of Spencer & V^'ard v. The London and Birming- 
ham Railway Company (1 Xicoll, Hare & Car. Railway Cases, 
159), which came before the vice chancellor of England in 1836, 
the bill was filed by the landlord and his tenant, for a nuisance 
which was supposed to be an injury to the interests of each in the 
property; and an injunction was granted without raising the 
question of misjoinder of parties. 

The same thing occurred in the case of Sutton and others v. 
Montfort (4 Sim. Eep. 559), which came before the same equity 
judge five years previous; where two tenants of different build- 
ings, having no joint interest, joined with the landlord of both 
in filing the bill to restrain the nuisance. But in the more re- 
cent case of Hudson and others v. Maddison (5 Lond. Jur. 
1104), which came before him in December, 1841, where five 
different owners of separate houses had joined in a bill to re- 
strain a nuisance which was a common injury to all their houses, 
he seems to have taken it for granted that the objection of mis- 
joinder of complainants would be fatal at the hearing; and he 
discharged the injunction upon that ground alone. (See 13 Sim. 
Eep. 416, S. C). Even if that case may be considered as finally 
settling the question in England, which I presume it does not, 
as it does not appear to have received the sanction of the lord 
chancellor, upon appeal or otherwise, I do not consider myself at 
liberty to follow that decision here; as the question was settled 
by this court directly the other way, more than twenty years since. 

In the case of Reed and others v. Gifford (Hopk, Rep. 416), 
which came before Chancellor Sanford in February, 1825, the 
complainants, as the chancellor states in his opinion, were several 
proprietors of different lands and mills, and of separate parts of 
the natural water-course at the outlet of a lake. The nuisance 



Murray v. Hay 43 

■which they sought to restrain was an artificial channel, cut by 
the defendant ujjon his own land, the effect of which would be 
to draw off the water of the lake, and thereby to prevent it from 
flowing in its natural channel to the several mills of the com- 
plainants, respectively. And he decided that as the acts of the 
defendant, complained of, were a common injury to all the com- 
plainants, there was such a common interest in the subject of the 
suit as to authorize them to join in one bill; although the injury 
which each sustained, by the diversion of the water from his 
individual mill, was separate and distinct. 

It is true each of the complainants, in that case, would have 
had the right to file a bill to restrain the nuisance, which was a 
special injury to his individual property. But as the relief sought 
was the same as to all the complainants, there certainly was no 
good reason for compelling them to file several bills to protect 
their common right against acts of the defendant, which were 
injurious to all of them. A similar opinion was expressed by me 
in the case of The Trustees of Watertown v. Cowen (4 Paige's 
Eep. 510) ; although from the manner in which the formal ob- 
jection of the misjoinder of complainants was raised in that case, 
it was not necessary definitely to decide the question of misjoinder 
of parties. For it is well settled that a mere formal objection of 
that kind, which is neither raised by demurrer nor by the answer 
of the defendant, cannot be set up at the hearing as a bar to 
relief which is common to all the complainants. 

In the case of MarseUs and others v. The Morris Canal Com-- 
pany (Saxton's Eep. 31), where the objection was raised, that the vl,^ 

bill was multifarious, because several persons having distinct am\U<^>^\ ^^^^ 
independent interests had joined therein as complainants, the acts , JU v^ 

of the defendants, complained of, were neither a joint nor even a ' ^^-^ -^ 

common injury to all the complainants. There the entry upon iw-^^ w^/^"^^ 
the land of each complainant and excavating the same, for th^J^'*\ \p^ 
purpose of making the canal, without compensating the owner for^^^ji-^ 
his property, was a distinct and independent cause of complaint. 
And it was in nowise injurious to his co-complainants; nor did 
it in any way interfere with, or affect, their several rights of 
property. That case therefore was rightly decided upon that 
ground. In the case under consideration, however, the bill shows 
that the erection and continuance of the alleged nuisance, and of 



44 Joint Plaintiffs 

every part of it, is a common injury to the separate property and 
rights of each of the complainants. 

It is said the complainants in this case in addition to their 
prayer for a perpetual injunction to restrain the continuance of 
the nuisance, have also prayed for an account, and compensation 
for the damage which they have respectively sustained by the 
alleged nuisance. The insertion of such a prayer might perhaps 
render the bill multifarious, if the court, at the hearing, would, 
upon the case made by the bill, be required to grant such multi- 
farious relief, in addition to the restraining the continuance of 
the nuisance, which is a common injury to both complainants. 
But where multifarious relief is not prayed for in the bill, it is 
not a matter of course to give multifarious relief at the hearing, 
under the general prayer, in addition to the relief in which the 
complainants have a common interest. That objection to this 
bill may therefore be obviated by striking out that part of the 
prayer which calls for an account of the damages which the com- 
plainants respectively have sustained by reason of the alleged 
nuisance. 

The motion to amend by striking out the name of Murray, as 
one of the complainants, must be denied with $15 costs. But the 
complainants are to be at liberty to amend their bill within twenty 
days, by striking out the prayer for an account and payment of the 
damages. 



Lloyd V. Loaring, G Yes. 773. (1802.) 

This bill, filed by Evan Lloyd and two other persons on behalf 
of themselves and all other members of the Caledonian Lodge of 
Free Masons, except the Defendant Loaring, against Loaring and 
another person, stated, that Plaintiifs are members or companions 
of a certain ancient fraternity, society, or lodge of Free Masons, 
called or known by the name of the Caledonian Chapter, No. 2, and 
being No. 2 on the list of the societies of Eoyal Arch Free Masons, 
consisting of Plaintiffs and a number of other persons; and Plain- 
tiff Lloyd being the chief or principal officer, and the other two 
Plaintiffs secretaries or other officers of the said companion, chap- 
ter or society: Plaintiffs as such three officers, as aforesaid, hav- 
ing the sole management and direction of the affairs of the said 



Lloyd v. Loaring 46 

Caledonian Chapter; which said chapter has been duly certified, 
and the names of the members registered according to law. 

The bill farther stated, that the said chapter or society held tlieir 
meetings at the Horn Tavern; and the dresses and decorations, 
and the books and papers, tools and implements, and other goods 
and effects, of the said chapter or society were there kept in a chest; 
the key of which was kept by Lloyd, as principal officer. A union 
with another chapter, called the Prudence Lodge, having been pro- 
posed and assented to by the members then present, and that the 
future meetings should be held at the Free Masons Tavern, the De- 
fendant Loaring and four other members then present authorised 
the janitor or servant of the said chapter to remove the said prop- 
erty to the Free Masons Tavern ; the master of which was directed 
to deliver it to him on producing the written order and in the pres- 
ence of Lloyd, and to no other person. The Defendants afterwards 
went there ; pretending authority from Lloyd ; and that by mistake 
he had sent the wrong key; and they broke open the chest; and 
took away all the said dresses, &c. 

The bill further stated, that by the rules and condition of the 
said society it is necessary, whenever any of the business or cere- 
monies are to be transacted or performed, that the Plaintiffs or one 
of them should be present; especially Lloyd as the president or 
principal officer; to whose care the key to the chest, and the effects, 
and the books, containing the laws and constitution and the ac- 
counts of the said society or chapter and the original warrant or 
charter arc entrusted ; and it is indispensable, that he should have 
possession of them; without which the society cannot properly be 
convened, or the business transacted; and the Defendant Loaring 
is interested in, or has a share in, the property vested in him as a 
joint tenant with the other members ; and having got the exclusive 
possession of the said effects, is a trustee for the other members, 
and bound to restore them uninjured for the use of the society. 

The bill charged, that the Plaintiffs took a Bow-street officer 
to the house of the other Defendant Hannam ; who acknowledged, 
that they had taken the property; and restored part of it, that 
was in his possession ; but that Loaring has the greatest part, and 
in particular the books of the constitution, laws, and rules, of the 
said chapter or society, the books of account, names of the mem- 
bers, minutes of the proceedings, and the original warrant or 
charter, granted to them by the grand or head chapter of Royal 



46 Joint Plaintiffs 

Arch Masons; by which the Caledonian Chapter is constituted or 
authorised and continued, and without which original warrant or 
charter no meetings of the said chapter or society can be properly 
and regularly convened or held, or the business or ceremonies, or 
functions, of the said chapter or society performed; that the per- 
sons, by or from whom such constitution and warrant or charter 
were granted, are all long since dead ; and no constitution or char- 
ter can now be had ; and if the said constitution or charter or war- 
rant should be lost or destroyed, the said chapter or society would 
either be wholly dissolved, and lose its rank and privileges among 
the several different lodges or chapters, or be prejudiced or de- 
graded; that the Defendant Loaring has threatened and intends 
to burn or otherwise destroy the property, and in particular the 
books and the original warrant or charter; and that Plaintiffs are 
ignorant of the particulars, of which the property consists ; and the 
Defendants refuse to discover, &c.; whereby the Plaintiffs cannot 
take any effectual steps at law. 

The bill prayed a discovery; and that the Defendants may be 
decreed to deliver up the said articles uninjured or undefaced; 
and in the meantime be restrained from disposing of, burning, or 
otherwise destroying, defacing, or injuring, them. 

The Defendants demurred generally to this bill for want of 
Equity, and also for want of parties. 

Lord Chancellor [Eldon] : 

If this is not a corporation, how could these five persons remove 
these articles? Loaring himself had a right to object to the pro- 
posed junction. If I consider them as individuals, the majority 
had no right to bind the minority. One individual has as good a 
right to possess the property as any other: unless he can be 
affected by some agreement. But how is this Court to take notice 
of these persons as a society ? A bill might be filed for a chattel ; 
the Plaintiffs stating themselves to be jointly interested in it with 
several other persons : but it would be very dangerous to take notice 
of them as a society, having any thing of constitution in it. As 
to the Statute referred to, the meaning was only to take them, 
provided they gave notice of their meetings, out of the operation 
of the Sedition Laws, not to acknowledge them. In this lull there 
is a great affectation of a corporate character. They speak of their 
laws and constitutions, and the original charter, by which they 



Llovd v. Loabing 47 

were constituted. In Cul'len v. The Duke of Queensberry, Lord 
Thurlow said, ho would convince the parties, that they had no law;, 
and constitutions. But tliere was an allegation, that he was indi- 
vidually liable. It is the absolute duty of Courts of Justice not to 
permit persons, not incorporated, to affect to treat themselves as a 
corporation upon the Itecord. If the Plaintiffs had stated simply, 
that they and several persons were jointly interested, or even they 
on behalf of themselves and others, provided it was manifestly in- 
convenient to justice to make them all parties, and stating this case 
as individuals, upon the principle of Fells v. Read it might be very 
proper. That this Court will hold jurisdiction to have a chatte"l 
delivered up, I have no doubt: but I am alarmed at the notion, 
that these voluntary societies are to be permitted to state all their 
laws, forms, and constitutions, upon the Record, and then to tell 
the Court, they are individuals. Then what sort of a partnership 
is this; for it is now admitted to be a partnership? The bill 
states, that they subsist under a charter, granted l)y persons, who 
are now dead; and therefore, if this charter cannot be produced, 
tlie society is gone. Upon principles of policy the Courts of this 
country do not sit to determine upon charters granted by persons, 
who have not the prerogative to grant charters. I desire my ground 
to be understood distinctly. I do not think, the Court ought to 
permit persons, who can only sue as partners, to sue in a corporate 
character; and that is the effect of this bill. 
The Demurrer was allowed. 

May 13th. The Lord Chancellor, when the demurrer was 
allowed, having thrown out an intimation, that the Plaintiffs might 
amend, ]\Ir. Eomilly and Mr. Roupell moved for leave to amend 
tlie bill. 

ilr. Piggott and Mr. Wooddeson, for the Defendants, opposed 
Ihe motion; insisting, that it would not be permitted in the case 
of any partnership trade ; that the decision in Lord Coningshy v. 
Sir Joseph Jel-yll was not considered regular: at least it is not of 
course, where the demurrer is not merely for want of parties- 
and that there is not a passage in this bill, in which the objection 
taken l)y the Court does not occur. 

Lord Chancellor [Eldox] : 

If the Plaintiffs strike out their present style as Plaintiffs, and 
sue as individuals, they will appear as dilTercnt persons. I give 



48 Joint Plaintiffs 

them leave to amend, because I am not sure, I should not contra- 
dict some rule ; having had great doubt, whether I should allow the 
demurrer. That doubt is founded upon this; that it has been 
decided, that individuals forming a voluntary society may as indi- 
viduals, not as a voluntary society, have such a joint interest in a 
chattel, that this Court would take notice of that interest, and of 
agreements upon it, not with reference to them as a voluntary- 
society, but as individuals. I allude to the case I argued without 
success upon the tobacco-box. With respect to that decision I had 
considerable doubt, whether this very case would not arise out of it. 
I had great doubt, whether a voluntary association for the best 
purpose is to meet without the authority of a corporation, and 
make laws and statutes, which have no authority, and then call 
upon this Court to administer all the moral justice, that may arise 
upon the disputes among these, in a sense unauthorized, bodies. 
It is singular, that this Court should sit upon the concerns of an 
association, which in law has no existence; and in that case, that 
this Court should be ancillary to their agreements as to their toasts, 
&c. I was much disappointed with that case upon that part of it; 
though I never had a doubt as to the jurisdiction upon chattels be- 
tween man and man. But it is too late to consider that now. 

In this case, though I cannot disguise from myself, that the 
whole record attributed more of a corporate character than I ought 
to permit a voluntary society to put upon the record, yet I could 
not devest myself of this notion altogether ; that, though they had 
assumed that character, yet upon the whole bill there was a case 
represented fairly of individuals with a joint interest, absurdly 
representing themselves corporate; and I had doubt enough there- 
fore, whether over-ruling the demurrer was absolutely right. By 
giving leave to amend I thought I might enable them to reduce 
the record to that, which, it is admitted, might be made by a new 
bill. Suppose, Mr. Worseley's silver cup was taken away from the 
Middle Temple: the society must some way or other be permitted 
to sue ; and this is really the same ; for it is not material, what it 
is. Upon the whole therefore I thought it fair to let them amend 
by striking out all that. 

In the manuscript notes I have seen strong passages, as falling 
from Lord Ilardwicke, that, where a great many individuals are 
jointly interested, there are more cases than those, which are fa- 
miliar, of creditors and legatees, where the Court will let a few 



Lloyd v. Loaring 49 

represent the whole. There is one case very familiar, in which the 
Court has allowed a very few to represent the whole world. 
Leave was given to amend. 

1. Where a number of persons have an interest in the same 
subject, if a Court cannot recognize them as a legally associated 
body, but is bound to consider them as individuals. Lord Eldon 
declared, not only in the principal case, but in Ex parte Lacey, 
6 Ves. G28, that the majority have no right to bind the minority. 

2. As to the jurisdiction which Courts of Equity exercise, for 
the delivery of specific chattels, and the permission granted to 
certain individuals to sue, as representing a joint interest, although 
they may not be a regularly incorporated society, provided they do 
not profess, by their bill, to sue as corporators; see, ante, the note 
to Fells V. Eeacl 3 V. 70. 

3. A plaintiff, it has been said, is now frequently permitted, 
as in the principal case, to amend his bill, in order to avoid the 
effect of a demurrer, at any stage of the argument, before judgment 
is given thereon (Baker v. Mellisli, 11 Ves. 72) ; and, before the 
demurrer is argued, it was long ago agreed, that the plaintiff may 
obtain leave to amend his bill, as of course. Lord Coningsby v. 
Sir Joseph Jekyll, 2 P. Wms. 300. Convenience, and the saving 
of both expense and time, have dictated a farther relaxation of 
practice in modem days; strictly speaking, after a demurrer is 
allowed, the bill is out of Court; and Lord Hardwicke said there 
was no instance of permission given to amend it {Smith v. Barnes, 
1 Dick. 67) ; but Lord Eldon has declared, that he knew many 
cases in which, after a demurrer allowed, and the bill dismissed 
by order, it had been considered in the discretion of the Court to 
set the cause on foot again. And, as this indulgence is granted 
to a plaintiff, so, on the other hand, when, during the pendency 
of the argument of the demurrer, and before judgment, the Court 
sees the demurrer is too general; but that, if more confined, it 
would be good ; permission will, for the sake of justice, be given to 
the defendant to amend the demurrer, at that stage of the proceed- 
ings. Baler v. MclUsh, ubi supra. 

4. As to the cases in which the general rule, requiring all par- 
ties interested in a suit to be before the Court, may be dispensed 
with, see, post, the note to The Attorney General v. Jackson, 11 
V. 365. 



50 x Q?' Parties Defexdaxt 




Parties Defendant. 
'HoyU V. Moore, Jf. Ired. Eq. (N. C.) 175. (lSJf5.) 

Cause removed from the Court of Equity of Lincoln County, 
at the Spring Term, 1845. 

The Bill is filed for the purpose of obtaining from the Court 
directions to the plaintiff, how to distribute property in his hands, 
which he holds as representing Alexander Moore, deceased. Alex- 
ander Moore, by his will, gave to his wife, Elizabeth Moore, con- 
siderable property, both real and personal, during her life, and, at 
her death, to be disposed of as she might think proper, among her 
children. Elizabeth Moore, by her will, gave a certain portion of 
the property, so devised to her, to the children of her deceased 
son, James Moore, naming them. The plaintiff is the adminis- 
trator with the will annexed of Alexander Moore, and he may be 
the executor of Elizabeth Moore, though it is not stated in the 
Bill, nor is her will exhibited. The Bill then states, that, after 
selling a large portion of the personal property, preparatory to 
dividing it among those who were entitled, he was '^y some of the 
legatees ordered to pay over none of the legacies or bequests, &c."; 
"that some of the negroes are claimed by Margaret Moore, relict 
and widow of James Moore, dec'd., who is the guardian of the 
children of A. Moore, dec'd. The) other children claim that 
the negroes shall be sold and divided among the other children of 
Alexander Moore;" "that James Moore and William Moore, sons 
of A. Moore, died after the making of the will and before the 
testator. William left five children; and John Moore died many 
years before, leaving" — with a space, to insert, as we presume, 
the names of his children, but setting out none. The Bill then 
proceeds: "Eobinson ]\[oore is still living, Alexander is still liv- 
ing, John Rhinehardt married Ann, Michael married Polly, since 
dead; William Scott married Posanna, both dead; they left issue 
William Scott, who died without issue, Alexander Pankin mar- 
ried Elizabeth, still living" — not stating the period when any of 
the foregoing died. The Bill then prays, that "tlie proper parties 
may be made defendants, and if there arc others than those set 
forth, they may be made parties, &c." — "that the clerk may be 
ordered to issue his State's writ of subpnona to th(^ proper defend- 



HOYLE V. MooKi: • ol 

ants, &c." Answers were filed by several persons, Sii^ji replication 
taken, and the cause set for hearing. ' ^ 

Nash, J. : 

We much regret it is not in our power to grant to the plaintiff 
the relief he seeks. The Bill, no doubt from haste, is so inarti- 
ficially drawn, that we cannot give him the instructions required. 
It is a general rule in Equity, that all the persons, however nu- 
merous they may be, who are interested in the subject of a suit, 
must be made parties, either plaintiffri or defendants, if known; 
and like a declaration at common law, the circumstances consti- 
tuting the case must be set forth in the Bill at large. Mr. Cooper, 
in his Equity Pleading, page 9, states, that the second part of the 
Bill sets forth the names of the parties. In order to obtain the 
answer upon oath, the Bill must pray, that the writ of subpoena 
issue to the defendant; and, although persons may be named in 
the Bill, none are parties to it, against whom process is not prayed. 
Coop. Eq. Plead. 16. 1 P. Wil. 593. 2 Dick. 707. A defendant 
is as necessary to the just and proper construction of a Bill in 
Equity as a plaintiff. In the case we are now considering, there is 
no defendant whatever — process is prayed against no one. The 
prayer is, "that the clerk be ordered to issue subpoenas to the 
proper defendants, &c." But who are they? Xo name or names 
are given. How is he to find them out? Is it to be left to his 
discretion to say, who ought to be made defendants? This, in fact, 
is what the plaintiff does ask. It is not, as before remarked, 
sufficient that the names of individuals are contained in the Bill. 
Process is not asked against them, nor against any one in par- 
ticular. There is, then, no party defendant to the Bill. But the 
Bill is liable to other objections, equally fatal. It is, among other 
things, stated, that John ]\Ioore died before the testator, leaving 
children, and a blank is left in the Bill, after the word "leaving," 
apparently for inserting the names of his children, and perhaps of 
his representatives, if he had any. It is not stated whether there 
is a representative or not. The Bill does not state who are tlie 
children of Alexander Moore. The names of certain persons are 
mentioned, but whether they are such children, we are left to 
conjecture. Some of those, so mentioned, are said to be dead, 
but when they died wo are not informed. It would be impossible 



52 Multifariousness 

for the Court, upon this executor's bill, to know to whoiD to 
decree the money. 

The Court has gone very far, in sustaining Bills defectr, sly 
drawn — but we think this so essentially wanting in one of the 
points, necessary to the institution of a suit in any Court, that we 
cannot sustain it. 

Pee Cubiam. Bill dismissed. 



Multifariousness. 
Warren v. Warren, 56 Me. 360. (1868.) 

Bill in Equity^ heard on demurrer, brought in the name of 
George Warren and Lewis P. Warren, of Westbrook, who were 
the sole heirs at law of the late John Warren, against John G. 
Warren and Charles W. Scott, executors and trustees of the last 
will and testament of the late Nathaniel Warren. 

The bill alleges substantially that, in 1815, John and Nathaniel 
Warren entered into a co-partnership in the business of lumbering, 
farming, trade and navigation, under the firm name of J. & N. 
Warren, each uniting his property, real and personal, and they 
were in all things to share equally in their partnership affairs; 
that their partnership business continued till Sept. 10, 1845, when 
John Warren died intestate, leaving the complainants his sole 
heirs and representatives, and that, upon his decease, all his prop- 
erty, together with his interests in said partnership business, vested 
in them ; that, during John Warren's lifetime, he advanced to the 
partnership more than his proportionate part of the funds and 
performed more than his share of the services therein; that, at 
John Warren's decease, Nathaniel Warren had received the larger 
share of the partnership profits, and was indebted to John Warren 
therefor and for the surplus advances aforesaid; that the partner- 
ship thus continued without any adjustment, until Feb. 11, 183-1, 
when Nathaniel Warren was found indebted to the co-partnership 
in a certain sum named; that, from Feb. 11, 1824, to the time 
of John Warren's death, there was no settlement or exhibit of the 
condition of the partnership affairs, although Nathaniel Warren 
kept the partnership 1)ooks and papers and was thereto often re- 
quested by John Warrou, and that no account thereof has been 



Warren v. Warren 53 

rendered by Nathaniel Warren or his representatives, to the date 
of this bill; that, prior to the death of John Warren, the co- 
partnership acquired certain real estate, a part of which was there- 
after divided, but a certain part thereof remained undivided at the 
decease of John Warren, which, together with a large amount of 
personal property, rights and credits, was continued in the part- 
nership business; that no administration of John Warren's estate 
has ever been granted to any person ; that the complainants became 
entitled to all the rights and remedies in equity to which their 
father in his lifetime was entitled. 

The bill further alleges that, on August 11, 1844, one Walker 
united his business of lumbering to that of J. & M". Warren, and 
that the lumbering business was carried on by J. Warren, N. War- 
ren and Walker, the said J. & N. Warren having one-fourth part 
interest each, and Walker one-half part interest therein; that, in 
all other respects, the partnership business of J. & X. Warren was 
conducted same as before Walker's connection therewith ; that said 
lumbering business was carried on by the firm name of Warren & 
Walker, separate and distinct from the other partnership business ; 
that, after the death of their father, the complainants succeeded 
to his partnership interests, all of which remained in the hands 
of Nathaniel Warren, and it vested in them; that, thus repre- 
senting their father's interests, the complainants were admitted by 
Nathaniel Warren into the partnership before stated; that the 
co-partnership business, so far as the lumbering was concerned, 
was carried on by Nathaniel Warren, owning one-fourth. Walker 
one-half, and the complainants, owning and representing in the 
right of their deceased father, the remaining fourth part interest 
in the same; that the several parties in the lumbering business 
were each to contribute their respective proportion of services and 
property and receive a proportionate share of the profits ; that the 
former partnership business of J. & N. Warren was continued 
after John Warren's death by Nathaniel Warren and the com- 
plainants, owning and representing the moiety of their father 
deceased, and they so continued in said business till Nov. 1862 ; 
that, after the decease of John Warren, Nathaniel Warren received 
more than his share of its proceeds and the complainants con- 
tributed more than their share to the business. 

The bill further alleges that the lumbering business was con- 
tinued by Nathaniel Warren, Walker and the complainants until 



54 Multifariousness 

July, 1854, when Walker sold Ms interest to one Brigham, and 
received his share of the profits, and fully accounted for his share 
of the property; that, in July aforesaid, the complainants pur- 
chased Nathaniel ^Yarren's interest in tlie lumbering interest; that 
Nathaniel Warren then held a large amount of property, rights 
and credits received from Jolin Warren and never accounted for, 
and a large amount of interest and profits which arose from the 
funds of the co-partnership of J. & N. Warren, in the hands of 
X. Warren, before and after Jolin Warren's death ; that Nathaniel 
Warren, so holding the funds of J. Wan-en, in his lifetime, and, 
since his death, of the complainants, which he ought to have ac- 
counted for to the complainants, the complainants, at Nathaniel 
Warren's request, made their promissory note, dated July 1, 1854, 
and payable to Nathaniel Warren, for the sum of $8930; that said 
note was given for convenience, with the full understanding with 
Nathaniel Warren that whatever sum of money or other property 
Nathaniel Warren held as due John Warren in his lifetime, or, 
since his death, to the complainants, should be applied to the pay- 
ment of said note, and that the amount so held was more than the 
value of the note. 

The bill further alleges that the partnership business, other than 
the lumbering business, was continued by Nathaniel Warren and 
the complainants, till November, 1862, when Nathaniel Warren 
died testate, and the defendants were appointed executors of his 
will, duly probated, and trustees of certain trusts therein named, 
which they accepted; that, in Nov., 1866, the defendants, as 
executors, disregarding the understanding before named and con- 
triving to oppress the complainants, sued said note and entered 
their action at the January term, 1867, of this Court, where the 
same is now pending. 

The bill further alleges that, during the partnership of J. & N. 
Warren, both before and since the death of John Warren, 
Nathaniel Warren applied to his own use, from the profits of 
said co-partnership, large sums of money exceeding his propor- 
tion, and, up to the time of his death, Nathaniel Warren has 
had charge of the partnership books of account between himself 
and John Warren and l)etween himself and the complainants; that 
the complainants have had no means to ascertain the true state of 
their accounts; that the complainants repeatedly applied to 
Nathaniel Warren in his lifetime, and, since his death, to the 



Warren v. Warren 55 

defendants, for au account of all the alfairs of the co-iDartnerbhip 
between Nathaniel & John Warren, in his lifetime, and, since his 
death, between Nathaniel V^arren and the complainants; that 
Nathaniel Warren, in his lifetime, refused and neglected to 
answer said account to John Warren or the complainants, as have 
the defendants since the death of Nathaniel Warren; that the 
defendants pretend that nothing is due the complainants; that 
Nathaniel Warren received $5000 more than his proportion of the 
partnership profits; that the defendants ought to apply said 
moneys to the payment of said note and be enjoined from prosecut- 
ing their suit thereon, and render a true account of the partner- 
ship transactions. 

The prayer of the bill was for an answer and for an account 
of all the partnership dealings, and the defendants be decreed to 
apply whatever is found due the complainants to the payment of 
said note, and the balance to the complainants, offering to pay 
whatever may be found due from John Warren or the com- 
plainants; that, in the meantime, the defendants be restrained 
from prosecuting their suit on the note, and for further relief. 

The defendants demurred, assigning the following causes: 

1. That the claims and transactions set out in the bill occurred 
more than six years before the filing of the bill ; 

2. That the plaintiffs, as heirs of John Warren, have no right 
to maintain the bill or to any relief touching the same; 

3. That, as to so much of the bill as seeks an answer touchinsr 
real estate acquired by the co-partnership prior to the death of 
John Warren, the plaintiffs have not made such a case in refer- 
ence thereto as entitles them to any discovery or relief; 

•1. That as to so much of the bill as seeks an answer touchinsr 
the alleged admission of the plaintiffs into the co-partnership after 
the death of John Warren, the continuance of the co-partnership 
thereafterwards, &c., the plaintiffs have not made such a case as 
entitles them to any discovery or relief; and, 

5. That the bill is exhibited for several separate and distinct 
claims and causes which have no relation to or dependance on 
each other, and concern different and distinct persons who have 
no common relation to or interest in the same; because the bill 
is multifarious, and because it discloses no equity on the part- of 
the plaintiffs, nor any right to the assistance of a court of equity. 



5G MULTIFAEIOUSNESS 

Kent, J. : 

The principal ground, set fortli in the demurrer to this bill, is 
that it is multifarious. Before examining the allegations in the 
bill, it is important to ascertain what is the true definition of 
multifariousness as applied to a bill in equity, and its extent and 
limitations. Equity, whilst it is broad and liberal in the applica- 
tion of remedies, and avoids the strict technicalities of the common 
law, yet forbids the mixing together in one bill of entirely distinct 
and independent matters of complaint, or the introduction of par- 
ties wdio are not interested in the subject matter or decree sought, 
and have but an incidental interest in some question raised by the 
statements in the bill. The objection, therefore, is of a two fold 
character, one relating to the subject matter and prayer of the bill, 
and the other relating to the parties thereto. But "a bill is not 
multifarious because it joins two good causes of complaint, growing 
out of the same transaction, when all the defendants are interested 
in the same claim of right, and when the relief asked for in rela- 
tion to each is of the same general character." Foss v. Eayiies, 
31 Maine, 81 ; Story's Eq. PI., § 284. 

Where the object of the bill is single, to establish and obtain 
relief for one claim, in which all the defendants may be inter- 
ested, it is not multifarious. Bughee v. Sargent, 23 Maine, 260. 
"A bill is not to be regarded as multifarious when it states a right 
to account from A & B against whom it has one remedy which it 
seeks to enforce, and also claims a lien against A for what is due.'' 
Story's Eq. PI., § 284. 

A bill is not multifarious when it sets up one substantial ground 
of relief and also another on which no relief can be had. VarricJc 
V. Smith, 5 Paige, 137. 

In the case of Newland v. Rogers, 3 Barb. C. E., 432, Chan- 
cellor Walworth, after stating that there did not appear to be 
any necessary connection between the different subject matters 
stated in the bill, says that, "the counsel is wrong in supposing 
that two distinct and independent matters or claims, by the same 
complainant against the same defendant, cannot properly be united 
in the same bill. Multifariousness in a bill is only where different 
matters, having no connection with each other, are joined in the 
bill against several defendants, having no interest in or connection 
with one or more of the distinct causes of action or claims for 
which the 1)111 is ])ronght, so that such defendants are put to the 



Wakren v. Warden 57 

unnecessary trouble and expense of answering and litigating mat- 
ters stated in the bill in which they are not interested, and with 
which they have no connection. But a simple misjoinder of dif- 
ferent causes of complaint, between the same parties, which cannot 
conveniently and properly be litigated together, is sometimes called 
multifariousness, although the ground of objection, in such cases, 
depends upon an entirely different principle, and is a mere matter 
of convenience in the administration of justice." 

Story also says, — that "the objection of multifariousness and 
the circumstances under which it will be allowed to prevail, or not, 
is, in many cases, a matter of discretion and no general rule can 
be laid down on the subject." Eq. Plead., § 284. 

The Supreme Court of the United States takes the same view 
in Gaines v. Cheiv, 2 How., 619, and in Oliver v. Piatt, 3 How., 
411. In the latter case, the Court say, — "We are of opinion that 
the bill is in no just sense multifarious. It is true that it em- 
braces the claims of both companies, but these interests are so 
mixed up in all these transactions that entire justice could scarcely 
be done, at least, not conveniently be done, without a union of 
the proprietors of both companies. It was well observed, by Lord 
Coltenham, in Catnphell v. McKay, 1 Mylne & Craig, 603, and 
the same doctrine was affirmed in this Court, in Gaines v. Chew, 
2 Howard, 642, that it is impracticable to lay down any rule as to 
what constitutes multifariousness as an abstract proposition; that 
each case must depend upon its own circumstances, and much 
must necessarily be left, where the authorities leave it, to the sound 
discretion of the Court." 

If we apply the doctrines and principles of these authorities to 
the facts in this case, we fail to find sufficient foundation to the 
objections made, to require us to dismiss the bill on the ground of 
multifariousness. 

The case presented in the bill is substantially one between part- 
ners, seeking for an adjustment of partnership business. It sets 
forth a co-partnership as existing between the complainants and 
the deceased, represented by the defendants, from 1845 to 1862. 

That such a partnership existed during that time, is distinctly 
averred. The bill in fact seeks for an adjustment of that partner- 
ship, and the ascertainment of the rights of the different parties 
during the existence of that firm. It is true that it sets forth the 
existence of a co-partnership between John and Nathaniel Warren 



58 Multifariousness 

for many years before 1845, and that the complainants are the 
heirs of John. If the bill had been framed as claiming a right as 
heirs alone to have an adjustment of the partnership, without 
showing any other connection with the co-partnership, than as 
heirs of their father, it might well be questioned whether such a 
bill should not be instituted by an administrator and not by the 
heirs. But the bill sets forth that the complainants, being heirs, 
"were admitted by Nathaniel into the partnership before stated.'' 
They then became co-partners, and not simply heirs, and came in 
as members of the firm, as individuals, and not in their representa- 
tive capacity. They now ask that the old co-partnership matters 
may be examined, not on the ground that they were members of 
the firm before their father's death, but because they were so inti- 
mately connected with the business after his death, that it is neces- 
sary to investigate and settle these prior matters, in order to deter- 
mine the rights of the parties under the firm as it existed after the 
complainants came in. 

If they came in, assuming simply their father's place by consent 
or understanding with the surviving partner, and entitled to all 
his interest in the firm property, and liable for all its debts, then 
it may be that they should be held entitled or liable, as the case 
might be, from the settlement in 1824. In such a case, if it became 
necessary to institute a bill in equity to adjust the affairs of the 
firm, thus continued, it clearly would not be multifarious to con- 
nect the prior with the subsequent transactions and seek for an 
adjustment of both, where the parties are the same. 

If another view is taken and these complainants are to be re- 
garded as having been admitted as members of a new firm, and 
independent of the old one, but as contributing the capital be- 
longing to their father at his death, in the firm, it would not be 
objectionable to ask for an examination and adjustment of the 
condition of that firm, in order to ascertain, among other things, 
wliat capital was in fact put in by the new partners. At all 
events, the transactions referred to in the bill arc not so entirely 
disconnected with the main purpose of the suit, as to justify us in 
saying that they cannot have any bearing on the case after all the 
facts are developed. 

The allegations in the bill in reference to the branch partner- 
ship, in which one Walker was originally a party, do not appear 
to us as improper, or as such distinct and independent and un- 



Wabren v. Warren 59 

connected matters as bring them within the objection of multi- 
fariousness. That partnership was in relation to one branch only 
of the business of the general firm, and was confined to that par- 
ticular business. It was well likened by the counsel for the com- 
plainants to the branches of a co-partnership, so common in 
mercantile transactions, existing in different cities or countries. 
It is not properly a distinct and independent firm, but a wheel 
within a wheel, or a branch from a common trunk. 

If Walker had remained as a partner, he, undoubtedly, should 
have been made a party. But the bill shows that, in 18o-l, Walker 
sold out his interest, and received from the partnership his share 
of the profits, and fully accounted for his share of the property. 
On the same day, the complainants purchased of Xathaniel War- 
ren, the testator, his interest in the lumbering business, which 
was the sole business of the branch firm. Thus that particular 
union was dissolved, and Walker had no further interest, and no 
claim is made upon him, nor any that could affect his interests. 

How far the purchase by the complainants of Xathaniel War- 
ren's interest was a full and final settlement, so far as that branch 
of the business is concerned, we cannot determine until the whole 
case is developed by the proof. All we now say is, that the bill is 
not objectionable for this cause on demurrer. The same remark 
may apply to the statute of limitations, invoked as one cause of 
demurrer. The bill was commenced within six years after the final 
dissolution of the partnership, by the death of Xathaniel Warren, 
in 1862. 

We arc now called upon to consider, on this demurrer, whether 
or not the statute of limitations should be applied to any part 
of the transactions between the parties, or whether they were in 
the nature of merchants' accounts, or open transactions, the in- 
vestigation of which would not be precluded by the statute. These 
questions may well await the answers and proof. There is nothing 
in the bill which on its face shows that the cause of complaint 
io necessarily and absolutely barred by the statute of limitations. 

Demurrer overruled. 

Barrows, Dickerson, Danforth and Tapley, JJ., concurred. 



60 Multifariousness 



Winslow V. Jenness, 64 Mich. S^. (1887.) 

Appeal from. Lapeer. (Stickney, J.) Argued October 28, 1886. 
Decided January 6, 1887. 

Bill to restrain the prosecution of 21 ejectment suits. De- 
murrer, for multifariousness in the misjoinder of unconnected 
causes of action, sustained, and bill dismissed. Affirmed. The 
facts are stated in the opinion. 

Campbell, C. J.: 

This bill, which was filed in February, 1886, seeks to restrain 
defendant Gertrude Smith from prosecuting 21 ejectment suits, 
and to compel her to convey to the several complainants an undi- 
vided third interest each to the property involved in the suit in 
which he or she is interested. There are no joint interests in 
complainants. Each claims title to separate land, in which Mrs. 
Smith sets up her own title to an undivided third. Defendant 
Gertrude Smith demurred for multifariousness in the misjoinder 
of unconnected causes of action, and the demurrer was sustained, 
and the bill dismissed. Complainants appeal. 

The case contains a recital of several matters, giving the history 
of various partnership matters, which are detailed in a bill for- 
merly filed by defendant Isaac N. Jenness against his co-defend- 
ant, Gertrude Smith, to obtain the same relief which is sought 
here. Jenness v. Smith, 58 Mich. 280. The present record does 
not entirely conform to that. But in order to try the sufficiency 
of the present bill on the one question of multifariousness, it will 
only be necessary to give an outline of the controversy, giving 
complainants the advantage of all the ambiguities. 

The case, thus abridged, is this: Henry Fish, father of Gert- 
rude Smith, died intestate in May, 1876, leaving her his heir at 
law, 17 years of age. Before his death, he, and defendant Isaac 
N. Jenness, and Allen Fish (since deceased) were ownei*s of con- 
siderable tracts of land in Michigan, including the lands here in 
controversy, which are in Lapeer county. They were all in part- 
nership, under the name of I. N. Jenness & Co., and these lands, 
although held by tenancy in common, are claimed to have been 
partnership property. After Henry Fish's death, it is claimed it 
became necessary to continue the business and manufacture the 
pine left, so as to close matters out, and, after using such personal 



WiNSLOW V. Jenness 61 

assets as could be spared without stopping the business, the debts 
could not be paid off without selling lands. 

Allen Fish became defendant Gertrude's guardian, and, suppos- 
ing salc-s could not be made complete without autliority to act for 
her, applied to the circuit court for the county of St. Clair, and 
obtained a decree, the sul)stance of which is not set out, but which, 
it was assumed, gave him power to act for her. Had the case been 
otherwise sufficient, it would have been necessary to show just what 
those proceedings were. After that decree, Allen Fish, for himself 
and also as guardian, joined in warranty deeds with Isaac N". 
Jenness and the widow of Henry Fish, to several parties, of the 
various parcels of land involved in this suit, including the com- 
plainants or their respective grantors, for prices set forth in the 
bill; and the consideration so received was used for partnership 
purposes. Tliese conveyances were not made at auction or at 
the same time, but at private sale, and from time to time, during 
the year 1877. It does not appear when the contracts were made, 
and it is not averred that the deeds referred to the lands as part- 
nership property, or that they were so considered by the purchasers. 
All that is shown as to the partnership is that the money was used 
for its benefit. One of the conveyances is shown to have been 
made in carrying out an individual land contract executed by the 
three partners during Henry Fish's life-time. This piece of land 
is averred to have been conveyed for a valuable consideration, the 
amount of which docs not appear, l)y Allen Fish, for himself and 
as guardian, with Mrs. Fish, to Jenness, who conveyed the land to 
Charles Bashaw, a complainant, and holder of the original con- 
tract. 

It is assumed, and is no doubt true, that Fish's deeds as guardian 
were void, the sales never having been reported or confirmed. 
Whether any lands remained unsold does not appear, but is not 
important now. 

Gertrude Smith has brought ejectment for her interest as heir 
at law, each complainant being sued separately for his or her sev- 
eral parcels. 

The case, then, is that of a person claiming an undivided interest, 
wliich, so far as she is concerned, has never been parted with, who 
is sued in equity to compel her to surrender and release it to the 
several grantees of her co-tenants, on the assumption that they 
owned it all and conveyed it all equitably. 



62 Multifariousness 

Tlie guardian's transfers are not relied upon, and could not 
be relied upon, as having any part in the controversy. ISTo equity 
could arise out of them. They were nullities, or else the bill had 
no basis. 

The legal issue is, therefore, a simple one. Each of these com- 
plainants claims under a purchase which was not made under any 
legal proceedings, which was separate in time and in consideration 
from every other sale. The only alleged common equity is that the 
conveyances from Jenness and Allen Fish, which in law conveyed 
two-thirds, should be held in equity as conveying the entirety. 

The bill does not even show a simultaneous origin, or a common 
fraud or contrivance by which these complainants were deceived. 
All that can be made out is that they bought of the same parties 
independently, and their title has failed in the same way; and no 
fraud or conduct of defendant in any way contributed to their 
difhculty. 

This attempt to obtain relief by joint bill goes beyond the 
broadest doctrine which has been formulated anywhere. There is 
no common wrong and no privity among them. Their grievances 
are similar, and that is all that can be said in their favor. 

The general rule of equity is that every several grievance must 
be redressed by a several proceeding. The only recognized excep- 
tions to it (and these are considerably qualified) are instances 
where there is a single right asserted on one side which affects all 
the parties on tlie other side in the same way, or a single wrong 
which falls on them all simultaneously and together. The in- 
stances which are most familiar are rights in common which are 
resisted by the owner of the estate on which it is charged, tax- 
rolls assessing all parties on an equal ratio, frauds by trustees 
affecting all the cestuis que trustent, and the like. Here the griev- 
ances are not separate and similar, but single and uniformly in- 
jurious. And it has been held in this Court, as well as elsewhere, 
that, if there is any distinction in the proportion or chairacter of 
the several grievances, there can be no joinder. Kerr v. Lansing, 
17 Mich. 34. 

Where the cause of grievance does not arise out of the same 
wrong, affecting all at once as well as similarly, there is no founda- 
tion for any such joinder. Our own precedents have settled the 
doctrine sufficiently. 

In the case of ^Valsh v. Varney, 38 Mich. 73, each of several 



WiNSLOw V. Jenness 63 

complainants had purchased separate parcels under partition pro- 
ceedings, which were valid as against all who were before the court, 
but which left out some of the tenants in common. These com- 
plainants joined in a h\\\ to restrain ejectment suits brought by the 
heirs not concluded by the partition, and sought further to have 
the partition decree opened and extended so as to bind them. But 
it was held complainants had no common grievance entitling them 
to join, and also that they had no rights beyond their purchase. 
This last point bears on another difficulty in this case which is 
distinct from the question of multifariousness. As the bill states 
their case, they bought a title in which defendant purported to 
have an interest in her own right, and which failed apparently 
from a defect in the guardian's power, of which, as that decision 
holds, they had notice.^ The bill does not indicate that they bought 
in reliance on the right of Fish and Jenness to convey the whole. 

In Bigelow v. Booili, 39 Mich. 623, a bill was filed by com- 
plainants to redeem, basing their right on a joint interest ac- 
quired under execution. It was held that, as this joint title failed, 
the bill could not stand to help separate interests derived other- 
wise. That case, however, is not one where the particular point 
raised here is veiy clearly presented, although a bill to redeem 
usually includes all parties to be affected. 

In Woodruff v. Young, 43 Mich. 548, a bill filed against three 
defendants for fraud in hindering complainant from getting the 
settlement of an estate in which they were all concerned, and also 
for frauds committed by them separately in various dealings aris- 
ing out of the same family relationship, but not connected with the 
estate, was held multifarious, because the frauds were distinct. 

In Brunner v. Bay City, 46 Mich. 236, it was held that parties 
whose lots had been sold under the same illegal assessment, and 
bid in by the city, had no longer any grievance for which they 
could join in a bill, and that each lot-owner had merely the several 
riglit to pursue the city as he would any other person having a deed 
whieh would be a cloud on his title to the separate lot. That case 
cannot ho distinguished in principle from this. And this was on 
the ground that thenceforward any claim or assertion by the city 
against one lot could in no way affect any other lot, but must be 
prosecuted and defended separately. It cannot help or hinder any 

'"It is a well-settled doctrine that parties purchasincr titles under judi- 
cial sales purchase just what can be lawfully sold, neither more nor less, 
and have no further rights. U'alsli v. ranicy. ,?8 .Mich. 76. 



64 Multifariousness 

one of these complainants to have defendant's title made out or 
defeated against any of the rest. Judgment in one of the eject- 
ment suits could not be shown in any of the others, and could not 
affect them. 

It is hardly necessary to increase citations, but they are not dif- 
ficfult to find. In Jones v. Garcia del Rio, 1 Turn. & R. 297, where 
several persons had been induced to buy scrip in the same loan by 
a fraud affecting them all in the same way, but by separate pur- 
chases. Lord Eldon dismissed their bill on this sole ground. He 
said that the plaintiffs, if they had any demand at all, had each a 
demand at law, and each a several demand in equity; that they 
could not file a bill on behalf of themselves and the other holders 
of scrip ; and, as they were unable to do that, they could not, hav- 
ing three distinct demands, file one bill; and, upon that ground 
alone, his lordship, without again adverting to the question of 
public policy (which had been raised and discussed), dissolved the 
injunction. This decision was in 1823. 

In 1834 the United States Supreme Court decided the case of 
Yeaton v. Lenox, 8 Pet. 123, on the same principle. There a 
considerable number of underwriters, taking risks on the same 
property and voyage, but severally, and not jointly, had paid their 
insurances to the same bank as holder, on the understanding that 
the money should be refunded if it turned out they were not 
liable. Tliis having been ascertained, they joined in a l)ill against 
the trustees of the bank, which was in liquidation, its charter hav- 
ing expired, to recover back their funds. Chief Justice Marshall 
disposed of their claim Yery briefly, refusing to pass on the equities, 
which were controverted. He said: 

"The plaintiffs who unite in this suit claim the return of money 
paid by them severally on distinct promissory notes. They are 
several contracts, having no connection with each other. Tliese 
parties cannot, we think, join their claims in the same bill." 

The principle is also recognized in Story, Eq. PL § 279, and 
Daniell, Ch. Pr. 395. 

It is by no means clear from the allegations in the Ijill that the 
grievances or claims of these complainants are entirely similar in 
their equities. But this we do not think it necessary to discuss. 
Their claims, good or bad, are entirely separate, and there is no 
common grievance. 

The decree should be aiTirmed, with costs. 

The other Justices concurred. 



POINTON V. POINTON 65 



Pointon V. Pohiton, L. B. 12 Eq. Cos. 5^7. (1871.) 

Demurueu for multifariousness and for want of parties. 

George Pointon, who died on the Gth of January, 18G3, leaving 
a widow, the Defendant Eliza Pointon, and four children, three of 
whom were Plaintiffs, the fourth being out of the jurisdiction, and 
not a part}' to the suit, him surviving, and who at the time of his 
decease was carrying on, in partncrsliip with his brother, the 
Defendant William Pointon, the businesses of lime burner and 
corn merchant and miller, by will, dated the 2nd of January, 1863, 
after bequeathing all his furniture to his wife, subject to the pay- 
ment of certain debts, gave, devised, and bequeathed all his prop- 
erty, real and personal, unto his wife and to his brother William 
Pointon, whom he appointed executors, upon trust to convert 
into money by sale, or by William Pointon taking all or any part 
thereof by valuation, which he thereby empowered him to do, and 
to invest (as in the will mentioned) for the benefit of his wife for 
life, and after her decease or second marriage to divide the same 
equally amongst all his children. The bill, filed on the Ifith of 
May, 1871, against William Pointon and the testator's widow, 
alleged that the testator's estate included his share and interest in 
the assets of the partnership; that the affairs of the partnership 
had not been wound up; that William Pointon, on the death of 
the testator, possessed himself of such assets; that he had carried 
and was carrying on the businesses under the old style; that it 
was expedient that the testator's estate should be administered by 
the Court; also that the accounts of the partnership should be 
taken; that this could not be conveniently done, except in this 
suit or in one similarly constituted, William Pointon being both 
executor and suriving partner; that William Pointon ought to 
account for what he had received, and for what, but for his wilful 
default and neglect, he might have received on account of the 
testator's estate ; that he had employed the testator's estate in the 
businesses, and had thereby occasioned great loss to it; that he 
had mismanaged and neglected the businesses, and that thereby 
large sums had been lost to the testator's est<ite. There were also 
allegations that he was getting in the outstanding partnership debts, 
and that he intended to apply them to his own use ; that he had 

5 



66 Multifariousness 

agreed to purchase Forge Mill and the stock-in-trade, part of the 
partnership assets, at a valuation, and had obtained a conveyance 
of the mill, but had not paid the purchase-money either in respect 
of the mill or in respect of the stock-in-trade, and that he had 
advertised the mill for sale by auction. 

The Plaintiffs, three children of the testator, prayed that his 
estate might be administered; for accounts of what William 
Pointon had received, or, but for his wilful default and neglect, 
might have received; and that he might be charged with what 
was due from him in respect of the partnership, both before and 
since the death of the testator, and with all losses occasioned by 
his mismanagement and neglect in reference to the businesses; for 
a receiver of the testatoi^'s estate and of the assets of the partner- 
ship and of the businesses carried on by William Pointon since 
the death of the testator; and for injunctions to restrain William 
Pointon from interfering with the testator's estate and the assets 
of the partnership before and since his death, and from selling 
the mill; and for the appointment of new trustees; and for all 
proper accounts. 

Sir Jonx Wickens, V. C. : 

I think that the demurrer to tliis bill is not well founded. It is 
a demuiTcr for want of parties, and for what is called multifarious- 
ness, but which is really misjoinder of subjects in a suit. As to 
the objection for want of parties, the case appears to me to be 
clearly within the 9th rule of s. 42 of the 15 & 16 Vict. e. 86, and 
I think it is impossible to hold that three out of four cestuis que 
trust — residuary legatees — cannot sue an executor, because tlie 
fourth has not been brought before the Court, without doing away 
with the operation of this clause of the section. The only authority 
which has been relied upon on this point is the case of Payne v. 
Parker. That is a case of this sort: A trustee under a settle- 
ment was brought before the Court to represent the interests of 
the cestuis que trust, and the Plaintiff, having elected to have those 
interests represented, was bound to have them represented by 
proper persons. The only question was, whether he had done so; 
and the Court decided that the trustee, Mr. Heningham, did not 
siilFieiently represent the interests of the cestuis que trust, and 
required that they should be made parties; and I think that the 
Court could not have decided otherwise. But that case, when 



POINTON V. POINTON 67 

attentively looked at, has, in my opinion, no application to the 
present. 

Next, as to the question of multifariousness: I think that there 
is no more in the objection on that ground than there is in that 
for want of parties. There are three analogous vices to which 
bills in equity are subject — misjoinder of Plaintiffs, misjoinder of 
Defendants, and multifariousness or misjoinder of subjects of suit. 
It is the last which is imputed to this bill. Multifariousness, prop- 
erly so called, exists when one of the Defendants is not interested 
in the whole of the relief sought, as the old fonn of the demurrer 
for multifariousness shows. Misjoinder of subjects of suit is where 
two subjects distinct in their nature are united in one bill, and 
for convenience sake the Court requires them to be put in two 
separate records. The case of Salvidge v. Hyde, 5 Madd. 138; 
Jac. 151, in which the bill was for the administration of a testa- 
tor's estate, and to set aside a sale made of part of it by the execu- 
tor, was an instance of this. There the Court refused to allow the 
two subjects to be united, although the Plaintiff was interested in 
each, and the Defendants were liable in respect of each. In the 
present case the misjoinder is of this nature: the suit is first an 
ordinar}' suit against the devisees in trust and executoi"s for the 
administration of the real and personal estates of the testator ; and, 
secondly, the Plaintiff's claim to have the partnership accounts 
taken as between the testator's estate and the Defendant William 
Pointon, the testator's partner and one of the executors and trus- 
tees; and then the suit is further complicated in this way: it is 
alleged that William Pointon has sold to himself or taken posses- 
sion of the partnership assets at a valuation under a power in the 
will, and that he has not paid for them. It is suggested that not 
only is the price of such assets in his hands, but that he having 
sold to himself without payment, what was purported to be sold 
remains assets of the testator till the price is paid. If a trustee 
who is entitled to take property at a valuation has a valuation 
made, but does not pay the money, nothing passes; until the 
money has been paid he has no interest in the property. 

It is not necessarj' to consider whether the Plaintiffs are or are 
not entitled to all the relief which they ask; but the question is, 
whether the various subjects as to which relief is sought are such 
as if fit for discussion can be properly dealt with in one suit. 
This is, of course, a matter of discretion. The Court will not allow 



68 MULTIFAEIOUSNESS 

distinct subjects to be mixed up in one suit when it would be 
inconvenient to the Court, or unfair to some one or more of the 
parties to it; but not one of these considerations, or of those 
mentioned in the case of Camphell v. Mackaij, 1 My. & Cr. 603, 
applies to the ])resent case. The estate of the testator cannot be 
wound up until the partnership accounts have been taken, nor 
until it has been ascertained whether William Pointon will pay 
the purchase-money or not. It is quite clear that, if there are to 
be separate suits, they must be closely intermixed, and the winding- 
up of the principal suit must await that of the other or others, and 
before it can be found out what the estate of the testator consists 
of, or what William Pointon owes to it, the partnership accounts 
must be taken. I am wholly unable to discover why they should 
not be taken in this suit. If it would result in inconvenience or 
unfairness, it would be another matter; but it appears to me to 
be impossible to say that any inconvenience can be apprehended, 
or that any injustice will be done. My opinion being that the 
objection as to misjoinder of subjects has failed as completely as 
that as to misjoinder of parties, the demurrer must be overruled. 



CHAPTER III. . 

FORM AND REQUISITES OE A BILL IX EQUITY. > ,« 

Paets of a Bill ix Equity. n^ ^ y 

ComstocTc V. Herron, Ji5 Fed. Rep. GGO. (lS91.)rjy }t^ »^ h^ 

This cause is before the court upon exceptions to the answer/^ -^^ 
of the respondents Herron and Fisher. The bill charges that as^ 




in productive real estate and mortgages or interest-bearing stocksj^j^ /^ 

and bonds, and to pay the income therefrom to the complainant. |;|;-^ ^ jy 
The respondents answer, denying the averments, and stating thai i/^ ^^/J'^ 
they have never been requested until the present year, by the com- Lp rjlr- 
plainant or any other persons, to make said investments, and that,"^ ^ 
on the contrar}^ it was well known to the complainant that they \\ ^1 
were proceeding as rapidly as possible to convert the estate into .^ ^ [ 
money or productive property, so as to make said investments^ , li^ 
also that their entire conduct in this matter was fully known toL^ ^ 
the complainant, and approved by her, and that she has nevero-x^^^^ 
expressed the least dissatisfaction in reference thereto. To these ^TvA^ o/'f' 
averments the complainant excepts. They are directly and prop- ^/^ "^ 
erly responsive to the charge of the bill. I do not think that the f^ ^' 
respondents, w'hen charged with dereliction of duty and violation 
of their trust, ought to be limited to a simple denial, and to be 
precluded from setting up that not only was no objection made by 
the complainant, but that she approved their entire conduct in 
this matter. \Yhile it may be true that that may not affect the 
final decree in this case, I think the trustees are entitled to relieve 
themselves from the imputations which are at least implied by 
the averments of the bill. Moreover, these averments of the answer 
are directly responsive to the charge that the respondents refused 
to make investments. Tlie same line of remark applies to the 
portions of the answer in which the respondents state that they 

69 



70 Parts of a Bill in Equity 

were assisted by the complainant in their efforts to sell the Newport 
cottage; she being familiar with it, and owning the furniture in 
it. Without entering into detail, it is enough to say generally that 
the bill charges the trustees with neglecting their duties and re- 
fusing to carry out the provisions of the will, and that by their 
failure to execute the trusts reposed in them the estate is con- 
stantly being depleted, and that there is danger of the destruction 
of the distributive share of the complainant, and, further, that 
they have mingled the trust moneys of the estate coming into their 
hands as trustees and executors with their own money and property, 
instead of keeping the same separate and apart, by reason whereof 
the money and property of the estate is likely to be confused, so 
that it cannot be separated from other funds. The averments of 
the answer to which exceptions are taken are in response to these 
wholesale charges, with reference to which the respondents have 
a right to vindicate themselves. It was said, in substance, upon 
the argument that there was no intention to reflect upon the 
respondents, and that the bill was drawn in accordance with ap- 
proved forms, and it was insisted that the averments of the answer 
excepted to did not touch the merits of the cause, which was not 
intended to be adversary, but merely for the construction of the 
will and the ascertainment of the rights of the complainant. 
Nevertheless the averments are in the bill, and, being there, the 
respondents have a right to answer them fully. Originally a bill 
in equity consisted of nine parts, of which there were five principal 
parts, to-wit, the statement, the charges, the interrogatories, the 
prayer of relief, and the prayer of process. But all these, according 
to more recent authorities, may be dispensed with excepting the 
stating part and the prayer for relief; for, as Langdell in his 
hand-book on Equity Pleadings states: 

"All that was ever essential to a bill was a proper statement 
of the facts which the plaintiff intended to prove, a specification 
of the relief which he claimed, and an indication of the legal 
grounds of such relief." Section 55. 

Had the bill been confined to these limits, as it might have been, 
there would have been no occasion for the answers to which the 
exceptions are directed; but, as it was not so limited, and as the 
answers do not go beyond what is responsive to the bill, the excep- 
tions will be overruled, without taking into consideration whether 
the matters set forth in the portions of the an^^wcr to which the 



StLRRICK V, PUGSLEY 71 

exceptions are taken are material to the final disposition of the 
cause. 



Address of the Bill, 

Sterrick v. Pugsley, Fed. Cases, No. 13379. (1S7J,.) 

On motion of complainant [Charles V. Sterrick] for a pre- 
liminary injunction to restrain defendants [James W. Pugsley 
and others] from using a deed of assignment of a patent by com- 
plainant to defendant Pugsley, and from claiming or exercising 
any rights thereunder. 

LoNGYEAR, District Judge: 

Some preliminar}' objections will be first noticed. The defend- 
ants' counsel objected to the bill of complaint being read on the 
grounds: 1st — That the entitling of the court is not "in equity," 
but of the "circuit court," etc., merely. 2d — That it is entitled 
in the cause. 

The address of the bill is to the "circuit court," etc., "in chan- 
cery sitting." This is sufficient, and if the entitling of the court 
were of any consequence the court would direct it to be amended 
by adding the words "in equity." The bill is entitled in the cause. 
This is irregular, because until the bill is filed there is no cause 
pending. The bill, however, is complete without it, and the en- 
titling as to the parties is rejected as surplusage. The objections 
to the bill arc, therefore, overruled. 

Counsel for defendants also objected to the reception and read- 
ing of the affidavits annexed to the bill of complaint in support 
of the motion for injunction on the grounds: 1st — That they 
have no proper venue. 2d — That they are not entitled in any cause 
"in equity." 

The affidavits are sworn to before United States circuit court 
commissioners, some of them before a commissioner for the Eastern 
district, and some before a commissioner for the Western district 
of Michigan. The^venue of each is: "State of Michigan, County 
of Calhoun," or, "County of Kalamazoo," according, I suppose, 
to the county in which the oath happened to be administered. This 
was irregular. The proper venue of an affidavit taken before a 
United States commissioner is: "United States of America, Dis- 



73 Address of the Bill 

trict of /' naming the district and state for wliich the com- 
missioner is such. In this case it should have been "Eastern Dis- 
trict of Michigan," or "Western District of Michigan," as the case 
was. In the view taken by the court, however, upon the merits 
of the motion, admitting all the affidavits, it is unnecessary for the 
purposes of this case to decide what is the effect of the irregularity 
in the venue. 

The objection to the entitling of the court is not tenable upon 
the ground stated. The affidavits were all made before the suit was 
commenced. Such affidavits should in no case be entitled in any 
court or cause. When they are so entitled it is a good cause for 
their rejection. Beg. v. Jones, 1 Strange, 70-i; Bex v. Pierson, 
Andrews, 313; Bex v. Harrison, 6 Term E. 60; King v. Cole, Id. 
640; 1 Daniell, Ch. Prac. 891; Humphrey v. Cande, 2 Cow. 509; 
Haight v. Turner, 2 Johns. 371; In re Bronson, 12 Johns. 460; 
MiUihen v. Sehje, 3 Denio, 54; Haivley v. Donnelly, 8 Paige, 415; 
1 Barb. Ch. Prac. 600. See, also, the decision of this court made 
in the present term in BlaTce Crusher Co. v. Ward (Case No. 1505). 
But it was said at the argument, if there is no entitling how can 
it be known for what purpose the affidavit was made ? This ob- 
jection, if it be one, can be very easily obviated by stating the pur- 
pose for wliich it is intended in the affidavit itself. 

The bill and affidavits having been read, defendants' counsel 
offered to read a sworn answer and accompanying affidavits in 
opposition to the motion. To this the complainant's counsel ob- 
jected, on the ground that he had not been served with copies. 
Affidavits to be used in support of, or in opposition to, special 
motions, ought always to be served on the opposite counsel a rea- 
sonable time before the motion is brought on. Where this is not 
done the court may reject the affidavits, or, in its discretion, allow 
the same to be read, giving the opposite party the option to pro- 
ceed with the hearing or to take time for the perusal and examina- 
tion of the affidavits, and production of affidavits in reply, where 
that is competent. The latter course was pursued in the present 
case. 



Gove v. Pettis 



Introduction. 




Gove V. Pettis, Jf Sandf. (N. Y.) JfOJf. (18J,6.) < ^ ^^ 

Demurrer by the defendant, Pettis, to a bill filed against him/- 
together with W. Austin and B. Dyckman. Several causes of de 
murrer were expressed, and at the hcarin<,f, other objections to the-W/*' \J 
bill were taken, ore tenus; all of which will be found stated in the*^ A'^ r^ 
opinion of the court. t^ . „ . ^ 

The Vice-Ciiaxcellor: ,^^ n ^' r' 

It is no longer a ground of demurrer that the complainant onuts, V^ '^ e. 
to state in the bill, his occupation or addition. V - J^ ^J^^*'^ 

The omission of the signature of solicitor or counsel is a caui^"" \/^ 
for moving to take the bill from the files of the court. It is a mat-C/ 
ter of practice, not of pleading; and is not a proper subject for 
a demurrer. 

I think otherwise of the omission to verify the bill, or to waive 
an answer on oath. The bill as served, is one not verified by the 
oath of the complainant, and yet it requires an answer on the oath 
of the defendant. By the 17th rule, if the bill do not waive the 
defendant's oath to the answer, it must he verified by the complain- 
ant or his agent, attorney or solicitor. 

This is a substantial part of the pleading, having a vital influ- 
ence on the cause; and the omission to comply with the positive 
requirement of the standing rule, is a defect in the bill for which 
a demurrer may be interposed. The chancellor has so decided in 
respect of the averments in creditor's bills, prescribed by the 189th 
rule. (McEIwain v. Willis, 3 Paige, 505.) 

As this defect is obviously a slip or clerical er/or, which might 
be amended, I have looked into the demurrer for want of equity, 
which was raised ore tenus, at the hearing. No relief is praj^ed 
against Pettis, nor is it stated that the discovery from him is 
essential or material. It does not appear by the bill, that Abbott 
has not a perfect remedy at law. The facts stated are available 
at the trial in his defence, and there is no apparent reason for his 
coming into this court. 

On these grounds the bill must be dismissed as to Pettis, but 
without eoet^. It is dismissed finally, on the demurrer ore tenus. 



74 Introduction 

v.liich, if it were the only valid one, would be allowed upon the 
payment of costs. On the other hand the demurrer for form, being 
well taken, would, standing alone, entitle the defendant to a bill 
of costs on the complainant's amending. It will be equitable, there- 
fore, to give no costs to either party. 

arvey v. Richmond, 6 J/. Fed. Rep. 19. (189Jf.) 
wo Demurrers to the Bill of Complaint. 





Hughes, District Judge: 

This case is before me at present solely on the pleadings filed. 
The bill was first presented to one of the judges of the court on 
otion for an injunction and the appointment of a receiver. 
After a hearing on this motion and two other hearings of motions 
jy the court, the bill went back to rules. Under the practice ob- 
aining in the circuit courts of the United States, it became incum- 
bent upon the defendants in the cause to plead at the September 
rule^jia^past ; that is to say, on Monday, the 3d of September, 
happened that that day was a national holiday, and dies non, 
the clerk's office being closed. TliSs circumstance constituted 
Tuesday, the 4tli of September, which was the next succeeding 
^P> " ^^y>i ^^^® September rule day for the purposes of this case. Ac- 
^/jj}^ cp^mngly one of the defendants, viz., the Eichmond Eailway & 
"^^ xcX'^l^ctric Company, appeared and filed a demurrer to the bill on 
'pr^^Q 4th. Afterwards, to wit, on the 6th of September, the Eich- 
ond & Manchester Eailway Company entered its appearance by 
8unsel, and tendered a demurrer, on its part, to the bill of com- 
plaint. 

The two demurrers are substantially the same. The disposal of 
one of them by the court will virtually dispose of the other. As the 
demurrer of the Eichmond defendant is regularly in, and permis- 
sion to file that of the Manchester defendant cannot materially 
affect the proceedings in the case, and as, moreover, it is within 
the discretion of the court to permit the filing of the demurrer of 
the Manchester defendant, the court permits that demurrer to bo 
filed. 

The principal ground of demurrer insisted upon l)y defendants 
is the failure of the bill to set out the places of residence of the 




Harvey v. Richmond 75 

plaintiffs in the cause, and also the places of residence of defend- 
ants. The hill alleges the plaintiffs to he citizens of Maryland, and 
the defendants to be citizens of Virginia, but disregards rule 20 in 
equity which requires the residence of all parties to be set out in 
the bill. As rule 20 does not define the method by which the dis- 
regard of this requirement by the pleader shall be taken advantage 
of, I infer that its intention is to leave that matter in each instance 
to the discretion of the court. My own opinion, in the absence 
of conclusive authorities on the subject, is that the failure of the 
bill to give merely the places of residence of the plaintiffs and 
defendants is not of sufficient gravity to require resort to a de- 
murrer. I think it would be competent for the court to require 
the residences to be stated in the bill by amendment on the spot, 
without delay, on motion. 

But the defect of the bill in this case is graver than the mere 
failure to give residences. There is a jurisdictional omission, more 
serious than the mere failure to conform to rule 20 in equity. 
It would not be sufficient for a bill to set out that John Doe, a 
citizen and resident of Maryland, complains of Richard Roe, a cit- 
izen and resident of Virginia. If there were but one judicial dis- 
trict in Virginia, the omission to state Richard Roe's place of 
residence might not be demurraljle, and might be amended on mere 
motion. But there arc two districts in Virginia, and the bill must 
give jurisdiction in the district in which the suit is brought. It 
is of jurisdictional essence that the bill shall allege that Richard 
Roe is a citizen of Virginia, resident at some place, alleged to 
be in the eastern district of Virginia. The bill at bar uses no other 
language in describing the defendants than to say that the suit 
is against "the Richmond & Manchester Railway Compan}', and the 
Richmond Railway & Electric Company, corporations duly incor- 
porated under the laws of the state of Virginia, and as such citi- 
zens of A^irginia." Tliat is all. There is no allegation that the 
defendant companies are residents, respectively, of Richmond and 
of Manchester, in the eastern district of Virginia; having their 
offices for the transaction of all their business (Code Va. § 11 04) 
in Richmond and Manchester, respectively, in the eastern district 
of Virginia. The omission is jurisdictional, and is demurrable. 
The fact that a corporation is resident in Richmond, and has its 
ofiBce for the transaction of all its business in Richmond, cannot be 
implied from the mere circumstance that 'T?ichmond'' is a word 



76 Stating Part 

used in its corporate name. It is a fundamental rule of pleading 
that implications cannot supply allegations. Certainty and pre- 
cision are of the essence of pleading, and all material averments 
must be positive and express. Implications, even necessary impli- 
cations, can never dispense with material allegations. The bill 
here is demurrable and defective in not containing all averments 
giving jurisdiction of the cause to the circuit court of the United 
States for the eastern district. 

I have not time at present to consider the remaining grounds of 
demurrer set out by the two defendants in the cause. I will say, 
however, that, whether these grounds be valid or not, the bill is 
amendable in the respects enumerated, on motion of complainants. 

I do not think that the paper called the "answer of defendants" 
is yet in the cause, except as an affidavit. The defendants are not 
bound to file an answer in the present stage of the cause. 



V (fA r. ^ Stating Part. 

^\A^*^ y-* Seals v. Robinson, 75 Ala. 363. (1883.) 
Appeal from Pike Chancery Court. 

Heard before Hon. John A. Foster. 

This was a bill in equity by J. M. Eobinson & Co., a mercantile 
partnership, carrying on business in Louisville, Kentucky, simple 
contract creditors of S. J. Seals, against the said Seals, R. C. 
Seals, his wife, and W. A. Wei don, seeking to have vacated and 
set aside, as fraudulent and void, a deed executed by S. J. Seals to 
]iis wife, bearing date 17th June, 1881, and conveying to her sev- 
( ral lots of land, situated in the city of Troy, in this State ; and 
to have the property conveyed by the deed sold for the payment of 
complainants' demand; and it was filed on 20th February, 1882. 
.\s appears from the averments of the l)ill, and from the proof, the 
complainants sold S. J. Seals, on 29th and 30th days of September, 
1881, goods, wares and merchandise, amounting in price to nearly 
one thousand dollars, on credit, and without security, the debt 
maturing at two and four months; on which was paid, on 24th 
November, 1881, the sum of two hundred dollars. The bill alleges: 
"That at the time said purchases were made, the said S. J. Seals 



Seals v. Robinson "" 

held and owned in his own name and right a large amount of real 
citate and personal property, of great value, to-wit, eight or ttn 
thousand dollars, consisting of valuable brick storehouses in the 
city of Troy, and dwellings and lots in said city, and stock in 
trade and choscs in action, as represented by him, of the value 
of four thousand dollars; and that upon the faith of said real 
and personal property, so owned by him and held and standing 
in the name of said S. J. Seals, in his own right as aforesaid, your 
orators were induced to sell and credit and trust said S. J. Seals, 
and sell and deliver to him goods, wares and merchandise upon 
the credit aforesaid. Orators further aver that, at the time the 
said S. J. Seals made the purchases aforesaid, he had himself 
reported in commercial circles as being worth, over and above all 
liabilities, in his own right, twelve thousand dollars; and through 
these representations, and his property aforesaid, he was enabled 
to obtain credit and to be trusted." It is then averred that on 
9th January, 1882, the said S. J. Seals filed in the office of the 
judge of probate of said county, for record, thejieed in question, 
which is made an exhibit to the bill. Tlie consideration 'expressed 
in the deed is the natural love and affection which^'the grantor 
had and bore towards his ^dfe, the grantee, and the property is 
conveyed to her in fee simple, to have and to hold "as her separslte 
property under the statutes of the State governing the estates of 
married women." After averring the execution by S. J. Seals, on 
17th Februar}', 1882, of an assignment of all his property, then 
owned by him, to W. A. Weldon, his father-in-law, as assignee or 
trustee for the benefit of his creditors, the bill proceeds: 'TTour 
orators further represent to your Honor, and aver the fact so to be, 
that tlie said deed made by said Seals to his said wife, R. C. Seals, 
was not executed on the 17th day of June, 1881, but was executed 
some time after that date, to-wit, about the 9th day of January, 
1882. But orators aver that if they are mistaken in this, then 
they aver that said deed was not delivered on said day, and was 
never in fact delivered until the 9th day of Januar}-, 1882, when 
the same became, for the first time, a matter of record." 

It is also averred that said deed was without valuable considera- 
tion; that at the time of its execution, the said S. J. Seals was 
financially emliarrassed and in failing circumstances, which was 
known to his wife; that it was executed and delivered by him with 
the intention, and for the purpose of hindering, delaying and de- 



78 Stating Part 

frauding the complainants and his other creditors; and that such 
fraudulent intention and purpose were known to his wife, and the 
deed was accepted hy her in furtherance thereof. The bill then 
contains this averment: "And plaintiffs aver that if said deed 
[was executed and delivered] at the time it purports to have been 
executed and delivered, there was a secret understanding and 
agreement between the said Seals and his wife, that the same 
should not become a matter of record at said time; and so far 
as the existence of the said deed was concerned, the whole com- 
mercial world was kept in blissful ignorance thereof, until the said 
Seals had purchased all the goods he wanted, amounting to several 
thousand dollars [in value], and had disposed of the same; and 
then, for the first time, it came to light, after the same had been 
concealed from your orators, and all persons, for the period of 
nearly seven whole months; and all this time the said Seals, his 
wife consenting thereto, was holding liimself out to the world as 
the owner, in his own right, of said property, for the purpose of 
defrauding his creditors, and those with whom he might after- 
wards deal on credit and trust." It is also charged that the deed 
is fraudulent, as to prior and subsequent creditoi's, in that said 
Seals 'Tiad a reservation therein in favor of himself, being the 
trustee of his said wife, to control and enjoy the rents of said 
property, without accounting to any one for the same." The bill 
was subsequently amended, averring the death of S. J. Seals after 
the filing of the original bill, and making his administrator a party 
defendant. 

To the bill as amended Mrs. Seals and W. A. Weldon filed a 
demurrer, the character of which is stated in the opinion. The 
demurrer was overruled, and the defendants answered. Mrs. Seals, 
in her answer, which was not under oath, averred, and testimony 
introduced on her behalf tended to show, that the deed in question 
was executed and delivered at or about the time it bore date, for 
the hona fide purpose, on the part of herself and husband, of 
making a provision for her and three children, minors of tender 
years, her husband being induced thereto by ba-d health, and an 
apprehension of an early death from a chronic disease with which 
he was then afflicted, and also a desire to avoid an administration 
upon his estate; and that she did not have the deed recorded at 
an earlier date, because she was not advised of the necessity of 
registration, and was finally induced to have it recorded by a sug- 



Seals v. Kobinson 79 

gestion from a third party, tliat the record would be proof of its 
contents in the event of a loss. She admitted that her husband 
owed debts at the time of the execution of the deed, but denied 
that he was then financially embarrassed, and also the averments 
of the bill charging fraud. 

The material facts and circumstances disclosed by the evidence 
for the comi)hnnant,^, on whicli they relied to sustain the averments 
of fraud contained in the bill, are sufficiently indicated in the 
opinion. There was no direct or positive evidence introduced by 
them, that the wife had any knowledge of the huslDand's finan- 
cially embarrassed condition when the deed was executed, or of his 
intention to hinder, delay and defraud his creditors, or of any 
other fraudulent intention or purpose on his part; or that she 
combined and conspired with him for the purpose of perpetrating 
any fraud; or that she withheld the deed from record for any 
fraudulent purpose. 

On the hearing, had on pleadings and proof, and on a motion 
to dismiss the bill for want of equity, the chancellor caused a 
decree to be entered, overruling the motion, declaring the deed 
fraudulent and void, and granting relief to the complainants. The 
decree also overrules "the exceptions to the testimony"; but the 
record fails to disclose these exceptions, or their nature or extent. 

Tlie rulings of the court, in overruling the demurrer, the motion 
to dismiss, and the exceptions to tcstimon)-, and in granting relief 
to the complainants, are here assigned as error. 

Brickell, C. J. : 

The rules of pleading in a court of equity, as to matters of 
form, are not so strict as the rules originally prevailing in courts 
of common law. The statutory requirement in reference to bills 
in equity is, that they "must contain a clear and orderly statement 
of the facts on which the suit is founded, without prolixity or 
repetition, and conclude with a prayer for the appropriate relief." 
A bill conforming to this requirement, under the practice and the 
decisions of this court, would have been deemed unobjectionable 
before the enactment of the statute. The statute has not, hovr- 
ever, been construed as in derogation of the cardinal rule, as it 
has been frequently termed, that the bill must show with accuracv 
and clearness all matters essential to the complainant's right to 
relief. These matters must not lie made to depend upon inference. 



80 Stating Part 

nor will amljiguoiis averments of them be accepted as siifiicient. 
The averments must be direct and positive, not uncertain and in- 
conclusive. — Spcnce V. Duren, 3 Ala. 251; CochreU v. Gurley, 
26 Ala. 405; Duclwortli v.. Duclworth, 35 Ala. 70. A bill may 
be framed in a double aspect; alternative averments may be in- 
troduced; but each alternative must present a case entitling the 
complainant to the same relief. The bill is demurrable, if in either 
alternative the complainant is not entitled to any relief, or is en- 
titled to relief essentially differing in character. — Andrews v. Mc- 
Coy, 8 Ala. 920; Lucas v. Oliver, 34 Ala. 626; Elves v. Walthall, 
38 Ala. 329; David v. Shepard, 40 Ala. 587; Micoii v. Ashurst, 
55 Ala. 607. 

If the original bill contains alternative averments, and either 
averment is insufficient to support the right of the complainant 
to the relief prayed, the objection was not presented in the chancer}'- 
court by demurrer. Advantage of it was claimed only by motion 
to dismiss for want of equity. A motion to dismiss for want of 
equity is not the equivalent of a demurrer; nor is it appropriate 
to reach mere defects or insufficiencies of pleading curable by 
amendment, which is matter of right at any time before final 
decree. It should be entertained only when, admitting the facts 
apparent on the face of the bill, whether well or illy pleaded, the 
complainant is without right to equitable relief. When it is ap- 
parent, if the facts were well pleaded, a case of relief would exist, 
the defendant should be put to a demurrer, specifying the grounds 
of objection, affording the complainant the opportunity of removing 
them by amendment.— iZoo^^er v. 8. & M. R. R. Co., 69 Ala. 529. 
The demurrer interposed was general ; it fails, in the words of the 
statute, "to set forth the grounds," and the statute prohibits the 
hearing of it. — Hart v. Clark, 54 Ala. 490. 

Objections to the admissibility of evidence, in chancery, ought 
to bo reduced to writing, and a reference to them should be incor- 
porated in the note of submission, or they should be otherwise called 
directly to the attention of the chancellor. If the fact that they 
have been made is not noted in the submission, or it is not otherwise 
shown that they were called to the attention of the chancellor, and 
he does not notice them, on appeal, the presumption is that they 
were waived. 

It is settled by a long line of decisions in this court, that a volun- 
tary conveyance, a convcyauce not resting upon a vahialtlc consider- 



Seals v. Robinson 81 

ation, is void per se, without any regard to the intention of the 
parties, however free from covin or guile they may have been, as to 
the existing creditors of the donor, without regard to his circum- 
stances, or the amount of his indebtedness, or of the kind, value or 
extent of the property conveyed, if it be not exempt from liability 
for the payment of debts. As to subsequent creditors, if it be not 
shown that there was mala fides, or fraud in fact in the transaction, 
the conveyance is valid and operative. But if actual fraud is shown, 
it is not of importance whether it was directed against existing 
or subsequent creditors ; either can successfully impeach and defeat 
the conveyance, so far as it breaks in upon the right to satisfaction 
of their debts. The distinction between existing and subsequent 
creditors is, that, as to the former, the conveyance is void ;;er se, 
for the want of a valuable consideration; as to the latter, because 
it is infected with actual fraud. — Miller v. Thompson, 3 Port. 196; 
Cato V. Easletj, 2 Stew. 214; Moore v. Spence, 6 Ala. 506; Costilla 
V. Thompson, 9 Ala. 937; Thomas v. DeGraffenreid, 17 Ala. 602; 
Foote V. Cohb, 18 Ala. 585; Stolces v. Jones, lb. 734; s. c. 21 Ala, 
731; Gannard v. Eslava, 20 Ala. 732; Randall v. Lang, 23 Ala. 
751; Stiles v. Lightfoot, 26 Ala. 443; Iluggins v. Perrine, 30 
Ala. 396; Cole v. Varner, 31 Ala. 244; Pinksion v. McLemore, 
lb. 308 ; Williams v. Avery, 38 Ala. 115. The right of the subse- 
quent creditor depends upon the existence of actual fraud in the 
transaction; the burden of proving it rests upon him. — Bump on 
Fraud. Con. 308. The general rule applies, that fraud must be 
proved; it will not be presumed, if the facts and circumstances 
shown in the evidence may consist with honesty and purity of in- 
tention. But it must not be supposed that fraud must be proved 
by direct and positive evidence, or that it is incapable of proof by 
circumstances leading to a rational, well grounded conviction of its 
existence. There is no fact which may be the subject of controversy 
in a judicial proceeding, civil or criminal, that is not the subject 
of proof by circumstantial, as distinguished from positive or direct 
evidence. As the fraud visiting a transaction at the instance of 
creditors lies in the intention of the parties to it, %dcious intent 
is not generally susceptible of proof otherwise than by evidence of 
circumstances indicative of it. The intention is a mental emotion, 
of which the external signs are the acts and declarations of the par- 
ties, taken in connection with the concomitant circumstances. — 
Hubbard v. Allen. 59 Ala. 283; Harrell v. Mitchell 61 Ala. 270; 



82 Stating Part 

Thames v. Eembert, 63 Ala. 561; Pickett v. PipMn, 64 Ala. 520. 

The conveyance now assailed by subsequent creditors of the 
grantor is of real estate, is purely voluntary, founded upon no other 
consideration than love and affection, and the controlling pui'pose 
of its execution was a provision for the wife of the donor. It is 
made directly to the wife, without the interposition of a trustee, 
and at law is a mere nullity. All contracts and conveyances made 
between husband and wife directly, at common law, are invalid, for 
the reason that husband and wife are regarded as but one person, 
and the legal existence of the wife is merged in that of the husband. 
— Gamble v. Gamble, 11 Ala. 966 ; Puryear v. Puryear, 12 Ala. 13 ; 
Bradford v. Goldsborougli, 15 Ala. 311; Frierson v. Frierson, 21 
Ala. 5-19. The statutes creating and defining the separate estates 
of married women are not in abrogation of this doctrine of the 
common law; they are not intended to sever the unity of the hus- 
band and wife, so far as to confer on them capacity to contract with, 
or to convey directly to each other. — Short v. Battle^ 52 Ala. 456; 
McMillan v. Peacocl-, 57 Ala. 127. Although this is the recognized 
doctrine of the common law, a court of equity, when the contract or 
conveyance is fair and just, will give to it full effect and validity. — 
Williams v. Maull, 20 Ala. 721; Williams v. Avery, 38 Ala. 115; 
McWilliams v. Ramsey, 23 Ala. 813; Andreivs v. Andrews, 28 Ala. 
432; Spencer v. Godwin, 30 Ala. 355. As a gift or conveyance 
by the husband to the wife directly is invalid at law, and is valid 
only in a court of equity, it is regarded as creating in the wife an 
equitable separate estate, though it may not contain words denoting 
that it is for her sole and separate use, or words in exclusion of the 
marital rights of the liusband; and that the estate is not conse- 
quently within the influence or operation of the statutes enabling 
the wife to take and hold the property owned by her at the time 
of the marriage, or to which she may become entitled subsequently. 
— McMillan v. Peacock, supra; EatcUffe v. Dovgherty, 24 Miss. 
181; Warren v. Brown, 25 Miss. 66; Short v. Battle, supra. 

Tlie conveyance is of all the visible, tangible property of the 
donor, subject to execution at law. All that he retained, consisted 
of choses in action, of uncertain, doubtful value. It is said by 
Judge Stor\^ that, "if a husband should by deed grant all his estate 
or property to his wife, the deed would be held inoperative in equity, 
as it would be in law ; for it could, in no just sense, be deemed a 
reasonable provision for her (which is all that courts of equity hold 



Seals v. Robinson 83 

the wife entitled to) ; and, in giving her the whole, he would sur- 
render all his own interests." 2 Story's Eq. § 1374. In Coates v. 
Gerlach, 44 Pcnn. St. 4G, tlie court said : "A conveyance that de- 
nudes a husband of all, or the greater part of his property, is much 
more than a reasonaljle provision for a wife; for in considering 
what is, and what is not a reasonable provision, the circumstances 
of the husband are to l)e regarded, his probable necessities as well as 
his debts. Equity will not assist a wife to impoverish her hus- 
band." Whether a court of equity would refuse to enforce this 
conveyance upon the ground that the provision for the wife is 
unreasonable, and that giving to it effect would work injustice to 
the husband, it is not necessary to consider. The circumstances 
of each case must be considered as determining the reasonableness 
of a provision for wife or children, and a conveyance may be valid 
inter partes, which the court would not hesitate to pronounce fraud- 
ulent as to creditors. — Jones v. Ohencliain, 10 Graft. 259; 1 Bish. 
on Mar. Women, § 755. When the rights of creditors are in- 
volved, the extent and value of the property conveyed, its kind and 
character, are all facts to be considered in determining whether 
the transaction is infected with a covinous intent. The fact that a 
donor strips himself of all visible, tangible property w^hich is sub- 
ject to execution at law, retaining only choses in action of uncertain, 
doubtful value, may not be conclusive proof of fraud ; taken alone 
it may be weak and inconclusive; but it will awaken suspicion 
and add strength to other circumstances which may in themselves 
be also insufficient to prove that his intent was fraudulent. And 
it is his intent, not the intent of the donee, which is material ; the 
fraud of the donor is visited upon the donee, though he mav be 
doli incapax, or though his intentions may be fair and honest, for 
he comes in as a volunteer, and has no equity which will protect 
him against the rights of creditors. — Pickett v. Pipkin, 64 Ala. 
520. 

The conveyance is not only of all visible property of the donor 
subject to execution at law, the value of which far exceeds the 
highest estimate of the value of the choses in action he retained 
but it contains the unusual, if not remarkable provision, that the 
donee shall hold the property conveyed "as her separate property 
under the statutes of the State governing the estates of married 
women." The effect which would be given this clause of the con- 
veyance, or whether it is capable of being construed as limitino- 



84 Stating Part 

and qualifying tlie estate, narrowing its incidents, lessening the 
dominion of the donee, as the estate is created by the general words 
which precede it, is not now of importance. Whether it is, or is 
not valid and qualifying as a limitation, subjecting the estate and 
the wife's dominion to the properties of a statutory estate, which 
is, in but a limited sense, a separate estate, it is indicative of the 
intention of the donor; and that intention is, in one aspect, now 
of the highest importance. Subjecting the estate to the statute 
would vest it in the donor as husband and trustee for the donee, 
entitling him to his rents and profits, so long as he continues in 
that relation, freed from liability to account to the donee, and 
exempt from liability for his debts. In other words, he does not 
part with the property absolutely, but reserves to himself a specific 
benefit which it is to yield, though the ownership is vested in the 
donee. 

Another circumstance it is of importance to consider. More 
than six months passed after the execution of the conveyance be- 
fore its registration. AMiatever may have been the general circum- 
stances of the donor at the time of the execution of the conveyance, 
and upon this point the evidence is not so clear and satisfactory 
as it could probably have been made, the fact is, that when the 
conveyance was delivered to the judge of probate for registration, 
he was insolvent, and, in but little more than a month thereafter, 
made a general assignment for the benefit of creditors. During 
the interval between the execution and registration of the con- 
veyance, he continued in possession, claiming ownership of the 
property, vouching the ownership as entitling him to credit, and 
upon the faith of it obtained credit. The omission to register the 
conveyance is but a fact or circumstance indicative of fraud, and 
is open to explanation, which, if just and reasonable, would neutral- 
ize all unfavorable inferences that may be drawn from it. The 
only explanation now offered is, that the donee was ignorant of the 
necessity for registration; ignorant that the law required regis- 
tration to protect her from the claims of subsequent purchasers 
from the husband, or from the claims of judgment creditors. This 
is ignorance of law, which can not be accepted as explanatory of 
the omission. But she was not ignorant that the husband, after 
the execution of the conveyance, and before its registration, em- 
barked in a new mercantile enterprise, contracting debts to a large 
amount. Xor is ignorance of the necessity of registration, or of 



DoRN V. Geuder 85 

the duty of giving public-it}- to the fact that he was not the owner 
of the property, imputed to him. The evidence is conclusive that he 
concealed the fact of the conveyance, and represented himself as 
having title. 

The omission to register the conveyance, the want of notoriety 
of its existence, the magnitude of the property conveyed, when 
compared with the value of that which was retained, the attempted 
reservation of a specific benefit to the donor, which he could hold 
free from liability for debts, his engagement in business very soon 
after the execution of the conveyance, obtaining a false credit be- 
cause of his possession and representations that he was the owner 
of the property, to which, to say the least, the donee by her supine- 
ness contributed, are all badges of fraud, or circumstances indicative 
that the intent of the donor was the hinderance, delay, and fraud 
of creditors. Bump on Fraud. Con. 308. It is not of importance, 
whether the intent was directed against present or subsequent 
creditors ; in either event, the conveyance may be successfully ira- [/ 

peached by a subsequent creditor. We concur in the conclusion ; (/- 
of the chancellor, that the conveyance must be deemed fraudulent Jf^ y 
as to creditors, prior or subsequent, and the decree is of consequenjB^^ » b w^' 
affirmed. ,^- '-^ ^^ 



Born V. GeuAer, 111 III. 363. (1898.) {f^ J^ '^cT' J" ^ 

Appeal from the AppeUate Court for the First Distinct ;-^ear^'^ OV^ y 
in that court on appeal from the Circuit Court of Cook County ; /jT y^ 
the Hon. 0. H. Horton, Judge, presiding. v^^ , t^ 

This was a bill in chancery filed on the 30th day of April, ISO-'lf^ e/^M 
by the appellee Philip Geuder, as executor of the last will and testal; ^ 
ment of Johann Geuder, deceased, and Edward S. Dreyer, truste1rV\jj/^ 
against Gay Dorn, the appellant, and his wife and others, for th^^ ^ l^ 
foreclosure of a certain trust deed. The bill alleged "that on MarchV^'^^C^ . <^ 
3, 1890, Gay Dorn, for value received, made his one principal ^^ vA" 
promissory note of that date, and thereby promised to pay to the J^^lm^ 
order of Emil Dickmann the suin of six thousand dollars ($6000) ^ J:^^ ' 
in three years after said date, with interest at the rate of six^ ^^ 

per cent per annum, payable semi-annually, said several install-i^^;;;^i^< 
ments of interest being evidenced and secured by six interest note?/ ^ "^ 
or coupons executed by said Gay Dorn to the order of said Emib ^^ /^^^ 



86 Stating Part 

Dickmann, each for the sum of one hundred and eighty dollars 
($180), which were due, respectively, in six, twelve, eighteen, 
twenty-four, thirty and thirty-six months after the date thereof, 
both i^rincipal and interest to bear interest at the rate of eight per 
cent per annum after maturity, and payable at the banking office 
of E. S. Dreyer & Co., Chicago, Illinois ; that said notes were after- 
wards endorsed by said payee, Emil Dickmann, and delivered to 
Johann Gender, who became the legal holder and owner thereof, 
and so remained up to the day of his death, to-wit, August 11, 
189-1; that to secure the payment of the said notes the said Gay 
Dorn executed and delivered to complainant Edward S. Dreyer, 
trustee, a deed of trust of even date with said notes, thereby con- 
veying to said trustee, in fee simple, the following described real 
estate, with all the buildings and improvements thereon, to-wit: 
(Here follows description of mortgaged premises;) that said prin- 
cipal note was given to evidence, and said trust deed to secure, the 
balance of the purchase money for the property above described, 
together with interest thereon for said period of three years; that 
it is provided in said trust deed that if default be made in the 
payment of the said notes or the interest thereon, or any part 
thereof, or in case of waste or non-payment of taxes or assessments, 
or neglect to procure or renew insurance, or in case of the breach 
of any of the covenants therein contained, then the whole of the 
principal of said notes shall thereupon, at the option of the legal 
holder thereof, become immediately due; that default has been 
made in the payment of the principal sum of said note, together 
with a large amount of interest thereon ; that there is now due the 
whole of the principal of said notes, being the sum of six thousand 
dollars ($6000), with interest thereon from March 3, 1890." The 
bill also alleged the trust deed contained an agreement to pay 
solicitor's fees of the complainants' solicitor in case of a foreclosure, 
and that the other parties defendant claim some interest in the 
mortgaged premises, and concluded with a prayer that a decree be 
entered foreclosing the trust deed and for sale of the property, and 
for a decree in personam for any deficiency, and for such other and 
further relief as the nature of the case might require. 

The appellant filed an answer to the bill, alleging payment of 
each of the said six interest notes or coupons mentioned in the bill, 
and that by agreement between the parties the time of the payment 
of the principal indebtedness was extended for the term of one year. 



DoRN V. Geddee 87 

to-wit, to the 3d day of March, 1894, in consideration of the pay- 
ment by appellant of the sum of $G0 as a bonus for said extension, 
and the execution by the appellant of two interest notes for the 
payment of the interest semi-annually upon the said principal sum 
for the period of time to which payment of the said principal note 
was so extended; that appellant paid both of said last mentioned 
two interest notes or coupons, and that on or about the said 3d 
day of March, 1894, — the date to which the said principal note 
was extended by the said agreement, — the parties again agreed that, 
in consideration of the sum of $120 paid by the said appellant, the 
time of the maturity of the said principal debt should be and was 
extended for the further term of three years, until, to-wit, March 
3, 1897; that the appellant executed and delivered to the com- 
plainants his certain six notes or interest coupons for the semi- 
annual interest to accrue upon the said principal sum for and dur- 
ing the time to which, by the said agreement, the maturity of the 
principal sum was extended; that said appellant paid the interest 
for the said period of six months evidenced by the first of said 
interest or coupon notes, and said first note was delivered to him; 
that the second of said last mentioned interest notes fell due under 
said agreement on the said 3d day of March, 1895, and that by a 
further agreement between the parties, based upon a sufficient con- 
sideration, it was agreed that for the convenience and accoimnoda- 
tion of the complainants the appellant would endeavor to negotiate 
a loan from other parties of a sufficient amount to discharge the 
principal sum (which, aside from the said last mentioned agree- 
ment, would not mature until March 3, 1897), and the interest 
coupon which fell due March 3, 1895, and that while he was in 
good faith endeavoring to negotiate said loan, complainants, in 
violation of the agreement, filed the bill for foreclosure. The 
answer contained other averments, which, in the view we take of 
the case, need not be adverted to. 

To this answer the complainants filed a general replication, 
averring that the allegations of their bill of complaint were true, 
and that they would aver, maintain and prove the same to be true, 
and that the answer of the appellant was uncertain, untrue and 
insufficient. 

The issue thus raised l)y the bill, answer and replication was 
referred to the master to take proof, and report his conclusions 
of both law and fact. The proofs were taken and the report of 



88 Stating Part 

the master filed. The substance of the report of the master wa^*, 
that the allegations of the appellant that the time of the maturity 
of the principal note had been extended to March 3, 1897, were 
sustained by the proofs, and that the appellant had paid the interest 
coupons mentioned in the bill, and also each of the interest notes 
or coupons afterwards executed by and in pursuance of the agree- 
ments extending the time of the payments of the principal sum, 
except the interest note or coupon due on the 3d day of March, 
1895. As to the allegations of the answer as to an extension of the 
time of the payment of the interest note which fell due March 3, 
1895, the report of the master is as follows: "I find from this 
evidence that no agreement for an. extension on the said March 
3, 1895, coupon was made; that the language testified to by Dorn 
is too indefinite to constitute an agreement for an extension; that 
Dorn fails to show that at any time he had any substantial negotia- 
tions pending for the procurement of the principal, and as no 
definite time is stated by Dorn to which said note was extended, 
it was an assumption on his part, which was not justified by the 
language, that the time of payment of the interest was extended. 
I therefore conclude that complainants had a right to declare the 
principal due for non-payment of the interest due March 3, 1895." 
The master found and reported that said interest coupon falling due 
March 3, 1895, was paid by the appellant to the appellee executor 
on the 25th day of May, 1895, which was a little over a month after 
the filing of the bill herein. 

Appellant filed exceptions to the findings of the master as to the 
facts relative to the alleged agreement for the extension of the 
payment of the interest coupon which fell due March 3, 1895, and 
to the legal conclusions of the master as to the right of the 
appellees, under the allegations of the bill, to foreclose the trust 
deed. The exceptions were overruled and a decree of foreclosure and 
sale entered, and the decree was affirmed by the Appellate Court 
on appeal. This is a further appeal of the said mortgagor, Dorn, 
to reverse the judgment of the Appellate Court. 

Mr. Justice Boggs delivered the opinion of the court: 

The case made by the allegations of the bill is, that the appellant 

had made default in the payment of the principal note according 

t",o its tenor and effect, and also in the payment of the six coupon 

notes given at the time the principal note was executed to evidence 



DoRN V. Geuder 89 

the liability of the appellant to pay interest semi-annually on the 
principal note from the date thereof to the 3(1 day of March, 1893, 
the date of its maturity. 

It appeared from the report of the master, which, in this respect, 
it is conceded is fully supported by uncontroverted testimony, that 
appellant had paid each of said intercut notes mentioned in the bill, 
and was not, in respect of any of them, in default. It also appeared 
from the master's report and from like uncontroverted testimony, 
that the payment of the principal note had been extended, by an 
agreement based upon a good and sufficient consideration, for the 
term of one year, to-wit, to the 3d day of March, 1894, and again 
extended by a like binding agreement for the further period of 
three years, to-wit, to the 3d day of March, 1897, and way not due 
when the bill was filed, to-wit, on the 20th day of April, 1895. The 
case made by the bill was fully met and overcome by the proofs. 
The master found that the maturity of the mortgage debt had been 
extended to March 3, 1897, but that it was proven appellant had not 
paid the interest coupon which, under the terms of the contract 
of extension, fell due on the 3d day of March, 1895, promptly at 
maturity, and that the appellees had the right to declare the mort- 
gage debt due and payable because of such default, and on this 
finding decree was entered against the appellant. The case, then, 
upon which the appellees succeeded, was, that the principal of the 
indebtedness to them did not fall due until March 3, 1897, but that 
by reason of the failure of appellant to pay the semi-annual in- 
stallment of interest promptly on the 3d day of March, 1895, the 
right accrued to them, under the terms of the agreement extending 
the maturity of the note to March 3, 1897, to declare the principal 
sum due and payable, and to proceed at once to foreclose the mort- 
gage. But the appellees made no such case by the pleading. They 
were not entitled to a decree of foreclosure upon the case alleged 
in their bill, for it was disproved. It is not sufficient, if true, that 
the evidence disclosed a state of case upon which a bill could have 
been framed which would have entitled them to a decree, for the 
reason such evidence is not applicable to the allegations of the bill. 
If the allegations of a bill are overcome by the proof, the com- 
plainant cannot have a decree because it may appear that issues 
might have been made by other pleading upon which he would have 
been entitled to relief. Appellees might, upon the coming in of the 
master's report, or at any time before the rendition of the decree. 



90 Statikg Part 

have applied for and obtained leave, u^wn such terms as the court 
should deem just, to make such amendments to their bill as might 
be found necessary to state a case entitling them to a decree under 
the evidence produced upon the hearing. But no such course was 
taken, and the question presented by the record is, whether the 
appellees were entitled to a decree under the allegations of their bill. 

It is a fundamental rule of equity pleading, that the allegations 
of a bill, the proof and the decree must correspond, and that the 
decree cannot give relief that facts disclosed by the evidence would 
warrant where there are no averments in the bill to which the 
evidence can apply, and that if the evidence disproves the case made 
by the bill the complainant cannot be given a decree upon other 
grounds disclosed by the proofs, unless the court permits the com- 
plainant to amend his bill so as to present the case disclosed by the 
evidence. McKay v. Bissett, 5 Gilm. 499 j Morgan v. Smith, 11 
111. 194; White v. Morrison, id. 361; Roivan v. Bowles, 21 id. 17; 
Chaffin v. Heirs of Kimhall, 23 id. 36; Bremer v. Canal Co., 123 
id. 104; Russell v. Conners, 140 id. 660; Ohling v. Luitjens, 32 
id. 23 ; Burger v. Potter, id. 66. 

We make no ruling on the contention of appellant that under 
the agreement between the parties with reference to the interest 
note which fell due March 3, 1895, it was necessary to the right of 
appellees to institute the suit, they should have first given appellant 
notice and an opportunity to pay the coupon. If the bill is 
amended, and the right to declare the mortgage debt due because 
of the alleged default in the payment of that interest coupon be 
made the basis of the right to institute the suit to foreclose the 
mortgage, the appellant may answer the amended bill and raise an 
issue on the point upon which both parties can be fully heard and 
the right of the matter properly determined. 

Tlie decree of the circuit court and the judgment of the Appellate 
Court are reversed and the cause will be remanded to the circuit 
court, where appellees may proceed further, as they may be advised. 

Reversed and remanded. 





Pehuy v. Carr 



Perry v. Carr, U N. II. 371. (1860.) ^Aa^ ^11)^ 

The facts in this case suiliciently appear Uom [iM o])'imon W ^ 
the court. , ^^JJ ^ j^ ^f \ y fi 

Bellows, J.: \j - r j^ /n> 

This is a bill in equity to redeem a tract of \md in Hopkinton,,. 
from a sale on execution of the equity of redemption, to the de- \y 
fendant, in May, 1859, and to compel the release to the plaintiff ^^ O^ 
of the interest acquired by such sale. The bill alleges that th^ji ^ » 

plaintiff, having acquired by deed the title of Bowers, the execu- J^j 
tion debtor, tendered to the defendant, November 29, 1859, the ^ v 
amount of the purchase money and interest and reasonable charges, A/ 
and demanded a release of his interest; to which the defendanv^ - l) 
demurs for want of equity, and in his argument assigns for cause y^A 
that the bill docs not allege that the plaintiff has always lieen ready 
and is still ready to pay the money tendered; and makes no offei 

Upon examination, it appears that the bill contains no sucli^ ^/^ 
allegations, and we are therefore of the opinion that the demurrerji/ y\ . 
is well taken. In general, the plaintiff must state in his bill a case V) 0^ ^ V 
upon which, if admitted by the answer, or proved at the hearing,'^ 1 ^ 

this court can make a decree. 1 Dan. Ch. Pr. 412. The right, title, LvV o 

or claim of the plaintiff should be stated with accuracy and clear- i)\^ i 
ness, so that the defendant shall be informed what he is to meet. -^ 





Story, Eq. PI., sees. 240, 255, 257. Where the plaintiff, in a bill 

to redeem, claimed under a levy of execution, but failed to state a , 

return of the execution and record, on demurrer the bill was held ~)^ 

to be defective. Ilohart v. Frishe, 5 Conn. 592; and see Crocker v. , A' 

Iliggins, 7 Conn. 342. On a bill to enforce a reconveyance of land, '^ \] 

it was held that the plaintiff should aver a readiness to pay the 

money. Buffum v. Buffiim, 11 X. H. 459. In Frost v. Flanders, 

37 N. H. 547, Perley, C. J., holds that a bill to enforce a contract 

for the conveyance of land, when the plaintiff relies upon a tender 

of the price, should contain an offer to pay; and so in a bill or 

other proceeding to obtain a release, after tender of the appraised 

value of land set off on execution. In that case it is held that when 

an execution is extended upon land, and the debtor, in a writ of 

cntn", relic? on a tender to dischars[e the land from the extent, he 



92 Charging Part 

must bring the amount tendered into court. For auglit we can see, 
the case of a sale of the equity of redemption stands upon the same 
footing, the provisions for the redemption and release being sub- 
stantially the same. The offer to pay the money tendered should 
therefore have been made in the bill, and the money brought into 
court, without which the plaintifE would not be entitled to a decree. 
The bill, therefore. 

Must be dismissed. 

^ 



^(4^*C^ 



/: 



JJ" ^J^JT Charging PART. 

nF. 0^ ^^ K^/^nith V. Clarh, ^ Paige (N. Y.) 368. (1831^.) 

f P * This case came before the chancellor on appeal. The facts Ol 
^^ f. the case, so far as they are necessary to the understanding of the 

decision, are stated in the former report of the case referred to in 

the opinion of the chancellor. 




The Chancellor : 

This is an appeal from the final decree of the vice chancellor of 

the eighth circuit, in the same cause which was formerly before me, 

on appeal from the equity court of that circuit, to reverse an order 

in relation to the injunction. (1 Paige's Rep. 391.) The case is 

substantially the same as it then appeared on the bill and answer. 

y^rid upon a careful examination of the case, and the voluminous 

» ' ' Tjriefs of the counsel for the respective parties, I see no reason to 

' "^ change the opinion I then entertained. The error into which the 

^ plaintiff's counsel appears to have fallen, is in supposing that an 

answer responsive to the charging part of the bill is not evidence, 

' in favor of the defendants. The charging part of a bill is as 

* necessary to be answered as the stating part. So far as the charges 

are material to anticipate and defeat a defence which may be set 

up by the defendant, they may be considered in the nature of a 

©^ special replication. But the complainant has the same right to 

\^ the defendant's answer to the charging part of the bill, to prove 

-^ the truth of his special replication, as he has to an answer to the 

A P' stating part, to prove the truth of that. If he does not waive an 

answer on oath from the defendant, he makes him a witness in 

favor of the complainant, against himself, and interrogates him 

as to every statement and charge in the bill. His answer, therefore. 



Smith v. Claek 93 

which is responsive to an)' such statement, or charge, in whatever 
part of the hill it is contained, is evidence in his own favor as 
well as in favor of tlie complainant. I know it has been supposed 
by many that the charging part of a bill is mere form; and that 
they might therefore put any thing they pleased in that part, by way 
of charge, even in a sworn bill. It is frequently, however, as ma- 
terial a part of the bill as the stating part ; and the decision of the 
cause frequently turns upon the issue formed by the denial of some 
averment in the charging part of the bill. It is therefore perjury 
for a complainant to make a false charge, or averment, in the 
charging part of a sworn bill, in the same manner as it would be for 
him to make a false statement in the stating part. 

The answer, as to the assignment and the consideration thereof, 
being evidence in favor of the defendants, the prior equity of 
Clark, to the extent of his debt, is undoubted; and as the com- 
plainant claims a mere equitable right of set-off, which accrued after 
the defendant Clark had an equitable right to the assignment, it is 
perfectly immaterial whether the complainant ever had notice of 
the assignment, or of Clark's equity or not. If he had paid the 
bond and mortgage, to the original holder, or had discharged any 
security which he held against him, under an actual agreement for 
a set-otf, and without notice, it would have been a very different 
case from that which is now presented. I have no doubt as to the 
correctness of the vice chancellor's decision upon the equity of this 
case. He was also right as to the costs. If the complainant wished 
to exempt himself from costs, and to put the defendants in the 
wrong, he should have offered to pay the amount justly due to 
Clark, and have requested him to re-assign the mortgage to Am- 
brose Smith, so that a set-off between him and the complainant 
could be made. It is a general rule that a mortgagor who comes 
into this court and is permitted to redeem, must pay the costs of 
the adverse party. 

The decree of the vice chancellor must be affirmed, with costs; 
and the proceedings arc to be remitted. 



94 Clause of Jukisdiction 



/ 



/ 



Clause of Jurisdiction. 

Goodwin v. Smith, 89 Me. 506. (1S97.) 

Walton, J. : 

This is a suit in equity. The plaintiff says that, being a shipper 

A of granite, he bargained with the defendant for a parcel of land, 

consisting of about five-eighths of an acre, over which he was 

ij- desirous of constructing a road for the transportation of his granite 

to the Saco Eiver; that for said parcel of laud he agreed to pay 

p4ier and she agreed to accept three hundred dollars; that in pur- 

X y^ suance of said agreement, and in part performance of the same, 

V\, he paid the defendant one hundred dollars, and entered upon and 

{x J. took possession of the land and expended a large sum of money 

y ^y^ (about one hundred and seventy-five dollars) in building a culvert 

(} and making a passable road over the same, and has at all times 

been ready to pay the balance due for the land, and has several 

times offered so to do, if the defendant would give him a deed of 

it ; but that the defendant, although she accepted and still retains 

the one hundred dollars advanced to her, has hitherto refused, and 

still refuses to give the plaintiff a deed of the land, falsely giving 

as an excuse for such refusal, that the contract was for a lease and 

not for a sale of the land ; and the prayer of the plaintiff's bill is 

that the defendant may be compelled to specifically perform her 

said agreement, and give the plaintiff a good and sufficient deed of 

said land. 

It is insisted in defense that the plaintiff's bill is fatally defect- 
ive because it does not contain an allegation that the plaintiff has 
not a "plain, adequate, and complete remedy at law." If such an 
allegation was ever necessary, it is not so now. It is known as 
the jurisdiction clause, and to avoid unnecessary prolixity, has 
been abolished by a rule of this court. (Rule IV.) It has also 
been abolished by the United States Supreme Court. (Piulc XXI.) 
And Judge Story says it was never necessary; that if the other 
facts stated in the bill do not show jurisdiction, this clause will 
not give it; and if the other facts stated in the bill do show 
jurisdiction, and are sustained by the proof, the bill will be sus- 
tained though this clause is omitted. Story's Equity Pleadings, 



Miles v. Miles 95 

§ 3-4; and note 2, citing the rule of tlie United States Supreme 
Court. 

It is further insisted in defense that the contract was oral, and 
that tlie evidence is insullicient to take it out of the operation of 
the statute of frauds. Wc think the evidence is sufficient. It is 
true that to take an oral contract for the sale of land out of the 
operation of the statute of frauds, the proof of a part performance 
of the contract, and the proof of the contract itself, must be clear 
and convincing. Or, as the rule is stated in Bennett v. Dyer, 
ante, 17, "the party making the attempt to take the case out of 
the statute of frauds must establish the existence of the oral con- 
tract by clear and satisfactory evidence." But we think the evi- 
dence in this case is clear and satisfactory. Viewed in the light 
of the undisputed acts of the parties, we think the oral proof shows 
beyond a reasonable doubt that the defendant did make such a 
contract as is set out in the plaintiff's bill, and that she accepted 
a hundred dollars in part performance of the contract, and per- 
mitted the plaintiff to take possession of the land and expend a 
large sum of money in constructing a road over it. And we think 
she must now be required to complete the performance of her con- 
tract, and give the plaintiff a good and sufficient deed of the land, 
as prayed for in his bill. 

Decree accordingly, with costs. 



Interrogatixg Part. 

Miles V. Miles, 21 N. H. UO. (1S53.) 

In Equity. The bill alleges that on the •?6th day of March, 
18-il, Eeuben Miles of Madbury, father of the orator, Abraham 
Miles, made and published his last will and testament ; and on the 
7th of August, 1841, made and published a codicil to his will. That 
Eeuben died in Madbury, on the 23d day of June, 1845, and on the 
1st day of July, 1845, the will and codicil were duly proved and 
allowed. That Reuben, by his will, among other things, devised to 
his daughter, Betsey Meserve, wife of Joseph Meserve, now of 
Wilson's Village, in the county of Niagara and State of New York, 
one-half in common and undivided of his homestead fann in ]\[ad- 
bury, including all the land which Reuben then occupied, with 



V6 Interrogating Part 

one-half of all the buildings thereon, and one-half in common and 
undivided of his wood lot, in Barrington, called the Waldron Hill 
lot, to have and to hold the same to her and her assigns, for and 
during the term of her natural life, and from and immediately after 
her decease, to such child or children of said Betsey, if any she 
should ever have, as might be living at the time of her decease, to 
have and to hold the same to such child or children, and its or 
their heirs and assigns forever; but in case Betsey should die with- 
out leaving any child of hers alive at the time of her decease, then 
and in that case, from and immediately after the decease of Betsey, 
to Abraham Miles, the orator, and Tichenor Miles of Madbury, one 
of the defendants, sons of the testator, in equal shares, to have and 
to hold the same to Abraham and Tichenor, their respective heirs 
and assigns forever. 

That Reuben, also, among other things, devised to his daughter, 
Nancy Miles, another of the defendants, the other half in common 
and undivided of said farm, including all the land which Eeuben 
then occupied, with one-half of the buildings thereon, and one-half 
in common and undivided of the Waldron Hill lot, to have and 
to hold the same to her and her assigns, during her natural life, 
and from and immediately after her decease, to such child or 
children as she might at that time have living, and to its or their 
heirs and assigns forever; but in case Nancy should die without 
leaving any child alive at the time of her decease, then and in that 
case, from and immediately after her decease, to Abraham Miles 
and Tichenor Miles, in equal shares, to have and to hold the same 
to them and their respective heirs and assigns forever. 

That it was ordered by the will that the devises to Betsey and 
Nancy, and their heirs, should be subject to and charged with am'' 
devise that the testator might thereinafter make to his wife, Lydia 
Miles, another of the defendants, and to any incumbrance that he 
might order in her favor. 

That Eeuben gave to his wife one-third part of his homestead 
and the Waldron Hill lot, in common and undivided, so long as 
she should remain his widow. 

The bill then charges that Betsey and Joseph Meserve, on the 
14th of July, 184G, by their deed of that date, for a valual)le con- 
sideration, conveyed to the orator all their right in the premises. 

That Nancy and Lydia Miles applied to the judge of probate 
for partition of the premises, and the same were duly divided and 



Miles v. Miles ^'^ 

set off to the parties by a comniittee, and the decree of the judge 
of probate made thereon, the 4th of April, 1848. The particular 
parts assigned to the several parties interested are set forth in 
the bill. 

That on the ITth of April, 1811, the complainant released to 
Betsey Meserve and her husband all his interest in the premises; 
and that John Kingman of Durham, another of the defendants, 
claims to hold that part of the premises set off to Betsey Meserve 
and Joseph, by a lease from them. 

That Lydia Miles is about eighty years of age, and is still the 
widow of Keuben; that Betsey Meserve is fifty-six years of age, 
and never had any child; that Nancy Miles is forty-seven years old, 
and was never married, and never had any child. 

That the complainant has reason to believe, and does believe, 
that the defendants intend to commit strip and waste on the prem- 
ises so devised and divided, and that there is an understanding, 
if not an express agreement among them for that purpose; and 
that when the premises were divided, there was standing thereon 
a large amount of pine and oak wood and timber, and that there 
is still standing on some parts a large amount of pine and oak wood 
and timber. 

That John Kingman has, as the orator has been informed and 
believes to be true, for about two years last past, cut and drawn 
away wood and timber to a large amount from that part of the 
premises devised and set off to Betsey Meserve ; and that Kingman, 
during that time, has cut and drawn from the premises full twenty 
cords of pine wood, and sold the same ; also pine logs, sufficient to 
make from five to ten thousand feet of boards, and converted the 
same to his own use, but not on said premises, and that the wood 
and timber were worth from $100 to $150; and that Kingman 
told tlio complainant, in the month of January before the filing of 
the l)ill, that he intended to cut wood on the premises that winter 
sufficient to last his fire two winters, and that Kingman never lived 
on any part of the premises. 

The bill also charges Nancy Miles with having committed waste 
upon the premises to a considerable amount, and sets forth the 
particulars of the same. It also makes the same charges against 
Tichenor j\[iles, and states that tho defendants pretend that thev 
have a right to cut, as set forth in the bill. 

Tlie bill then states that "to the end, therefore, that the de- 

7 



98 Interrogating Part 

fendants may, upon their several and respective corporal oaths, to 
the best and utmost of their several and respective knowledge, 
remembrance, information and belief, full, true, direct and perfect 
answer make to all and singular the matters aforesaid, and that 
as fully and particularly as if the same were here repeated, and 
they and every of them distinctly interrogated thereto, and that 
more especially said confederates may, in manner aforesaid, answer 
and set forth" — 

Whether Eeuben Miles made his will and codicil, and the devises 
therein set forth, and whether the will was proved, as in the bill is 
alleged. 

When Eeuben Miles died, and whether the real estate was divided, 
as set forth in the bill. 

Whether deeds were given, as in the bill of complaint is alleged, 
and what deeds were given, and where. 

What is the age of Lydia Miles, and Nancy Miles and Betsey 
Meserve, and whether Betsey and Nancy ever had any child. 

Whether Kingman has any right to any part of the premises 
so divided ; and what right and to what part and from whom, and 
when and on what terms and conditions. 

Whether the defendants, or either of them, and which, have cut 
and hauled, or permitted to be cut and hauled, or caused to be cut 
and hauled, any wood and timber from the premises, and where 
and how much by each, and the value of the same, and what disposi- 
tion each has made of the wood and timber so cut and hauled, or 
permitted or caused to be cut and hauled. 

Whether the defendants, jointly or severally, have not sold the 
wood and timber, by them and each of them taken from the prem- 
ises, and how much each has sold, and the value of the same, and 
where the same was sold, and whether there is not now a large 
amount of oak and pine wood and timber on the premises. 

The bill then prays an injunction against the defendants and 
their agents from committing any further strip and waste on the 
premises, and from cutting and hauling wood and timber there- 
from, beyond what tenants for life have a right to cut; and that 
the defendants be compelled to account for all the illegal cutting 
done by them, and to pay to the orator his just proportion of the 
value of the same. There is also a prayer for general relief. 

To the answers of Betsey Meserve and Joseph Meserve and John 
Kingman, replications were filed, and to the answers of tlio other 



Miles v. Miles 99 

defendants, Nancy Miles, Lydia Miles and Tichenor Miles, excep- 
tions were filed. 

The defendants not submittinfr to the exceptions, the questions 
arising upon the same are for the determination of the court. 

Eastman, J. : 

To the answer of Lydia Miles, the exception is taken that she has 
not answered and set forth whether the orator has reason to Ije- 
lieve, and does believe, that the several defendants, naming them, 
intend to commit strip and waste on the premises devised by Keubeu 
Miles, and whether there is not an understanding, if not an express 
agreement among them for that purpose. 

Upon looking into the bill, we do not find any particular inter- 
rogatory specihcally interrogating the defendants upon this point- 
But in the general allegations of the bill, the charge is made as 
set forth in the exception. There is also in the bill the general 
interrogatory or requisition that the defendants may severally and 
respectively, full, true, direct and perfect answers make to all and 
singular the premises, as fully and particularly as if the same were 
repeated, and they and every of them distinctly interrogated thereto. 

There is nothing in the answer particularly denying this charge 
in the bill — nothing except the general and usual denial of all 
unlawful combination and confederacy; and the question is raised 
whether a defendant is obliged to answer the statements and charges 
in a bill, unless specifically interrogated thereto. 

According to the present English practice, the general inter- 
rogatory is not sufficient. By the 16th of the orders of August, 
1841, it is provided that a defendant shall not be bound to answer 
any statement or charge in the bill, unless specially and particu- 
larly interrogated thereto. 2 Danl. Ch. PI. & Prac. 820. But such 
was not formerly the practice. 

Tlie same rule has been adopted by the supreme court of the 
United States. Rules in Equity, 40 January term, 1842. 

*\Yith us no rule of the kind has been adopted, and we adhere to 
the gener al pra ctice ofcourts oif chancery, which have no particular 
rules upon the subject, and require a defendant to answer all the 
allegations and charges in the bill which may be material to the 
plainliff's case; and although, to prevent evasion on the part of the 
defendant, it may be well, and is usual, to add interrogatories con- 
cerning the matters considered to be most essential, yet. under the 



lUO Interrogating Part 

general interrogatory, .an answer is ojjen to exception, if it omits 
to notice material charges and statements in the bill, concerning 
which no specific interrogatories are introduced. 1 Danl. Ch. PL 
& Prac. 432; Story's Eq. PI. § 38; Methodist Episcopal Church 
V. Jaques, 1 Johns. Ch. Eep. 65; Hagthorp v. FIoolc, 1 Gill. & 
Johns. 270; Salmon v. Claggett, 3 Bland. 125;" Banh of Utica v. 
Messereau, 7 Paige 517; Parkinson v. Trousdale, 3 Scam. 380; 
Ciiijler V. Bogert, 3 Paige 186. 

That matter has been settled in the same way in Massachusetts, 
by rule of court. Mass. Kules for the Eegulation of Practice in 
Chancery, rule 5. 

According to these suggestions, the defendant should have made 
answer to this charge in the bill. It is a material allegation of an 
intent to commit waste, and the exception must be sustained. 

To the answ^er of Nancy Miles, two exceptions are taken. The 
first is, that she has not, to the best of her knowledge, remembrance, 
information and belief, answered and set forth whether John King- 
man, during the time stated in the bill, cut and hauled from the 
premises full twenty cords of pine wood, and sold the same, and 
cut and drew from the premises pine logs sufficient to make from 
five to ten thousand feet of boards, and converted the same to his 
own use, but not on the premises ; and whether the wood and timber 
were worth from one hundred to one hundred and fifty dollars, 
and that Kingman told the orator, in the month of January then 
last, that he intended to cut wood on said premises, the present 
winter, sufficient to last his fire two winters, and that Kingman 
never lived on any part of the premises. 

The bill contains the allegation set forth in the exception, the 
answer to which is as follows : that Kingman held the premises, 
by lease from the Meserves, for two years, and that during said two 
years he had some pine trees cut for fencing, and sawed the same 
into boards; and during the latter part of the winter of 1850, or in 
the spring of that year, he caused some of the boards to be hauled 
and left at or near the different bars on the premises, and the same 
were afterwards used in repairing said bars. That Kingman used 
no fuel on the premises while he so occupied the same, and this 
defendant does not know that he took any from the place to be used 
elsewhere. 

The answer to this allegation of the bill is far fi-om being explicit. 
Kingman might have cut the timber alleged in the bill, and the de- 



Miles v. Miles 101 

fendant, jSTancy Miles, have known the fact, and still the answer be 
true ; for he might have cut timber to be sawed for bars in addition 
to that specified in the bill. 

She says, also, that she does not know that Kingman took any 
fuel from the premises to be used elsewhere. But if she had no 
knowledge upon the subject, she may have had information. 

The answer to the part of the bill contained in this exception 
is entirely insufficient, and the exception must be sustained. 

A defendant must answer as to his knowledge, remembrance, 
information and belief. If a fact is charged as within liis personal 
knowledge, he must answer positively, and not as to his remem- 
brance or belief. If facts are charged as having happened, but they 
are not within his own knowledge, he must answer as to his informa- 
tion and belief. And he must answer directly and without evasion. 
He must answer the substance of each charge, as well as literally 
the several matters charged. A general denial, also, is not sufficient, 
but there must be an answer to all the special circumstances and 
particular inquiries. Hall v. ^Yood, 1 Paige 404; Devereaux v. 
Cooper, 11 Vt. Rep. 103; Utica Ins. Co. v. Lynch, 3 Paige 210; 
Coop. Eq. PI. 314; Smith v. Lasher, 5 Johns. Ch. Eep. 247; Tay- 
lor V. Luther, 2 Sumner 228; Woods v. Morrell, 1 Johns. Ch. Eep. 
103; Petit v. Candler, 3 Wendell 618; Story's Eq. PI. 852; 
Mountford v. Taylor, 6 Vesey, 792 ; 2 Dan'l Ch. PI. & Prac. 830 ; 
Morris v. Barker, 3 Johns. Ch. Eep. 297; Bank v. Lewis, 8 Pick. 
119. 

Tlie other exception to the answer of Nancy Miles is the same 
as that taken to the answer of Lydia Miles, and must be sustained 
accordingly. 

To the answer of Tichenor JVIiles six exceptions are filed. The 
fifth and sixth are the same as those filed to the anwser of Nancy 
Miles, and they must be sustained for the reasons already given. 
The disposition of the other four involves the same question as that 
stated in deciding the first exception to the answer of Nancy Miles, 
and it is unnecessary to state here anything further than to say that 
upon the principles there laid down, we think, the first and second 
exceptions should be overruled, and the third and fourth should be 
sustained. Tlie answer to the allegations embraced in the first and 
second exceptions is sufficient, while the answer to the allegations 
contained in the third and fourth exceptions is evasive and insuffi- 
cient. 



^ ' flW*^ VyV ' V^ I^f^ROGATING PaRT '^ 1\V / ^ 




r^^ J^'fj^ 5anJk V. Levy, 3 Paige (N. Y.) 606^ (1832.)^ 

\V"^A V* ' Tnis cause came before the chancellor on appeal by the defend- 
■^ . p^ ants from the de^on of the vice chancellor of the first circuit, 
overruling thdifexceptions to the master's report on exceptions to 
their ^se^j^'^Ll answers. The bill was filed by judgment creditors of 
the^eiendant Levy, after the return of their execution at law 
tff ainst him unsatisfied. The bill alleged, among other things, that 
the defendant Levy obtained moneys from the complainants' bank 
fraudulently, and by collusion between him and the defendant 
\Yolfe, who was his son-in-law, by overdrawing his account; and 
charged that Wolfe received the money thus obtained from the bank, 
and still had the same, or a very large amount thereof, in his pos- 
session. The bill also charged that after Levy had so overdrawn his 
account with the complainants he petitioned for the benefit of the 
insolvent law. That the granting of his discharge was opposed; 
and upon that occasion both of the defendants in this suit were 
sworn and examined. That from such examination it appeared 
Levy had knowingly and fraudulently overdrawn his account with 
the complainants, for the purpose of placing the moneys thus ob- 
tained in the hands of Wolfe; that the moneys were placed in his 
hands accordingly, and he knew at the time that they had been 
obtained by such overdrawing; and that those moneys, or the 
greater part thereof, were in the hands of Wolfe at the time of 
uch examination. The exceptions which were sustained by the 
vice chancellor, related principally to the neglect of the defendants 
^^ to answer interrogatories founded upon the specific allegations in 

^ • the bill as to what appeared from the examination of the defendants 

on that occasion. 

A \ ^y '" ■ 

V ' T^ Chancellor : 

A ^[i' Before going into the examination of the several exceptions par- 

r**/' ^ ^ticularly, it may be proper to notice a general objection, by the 

'^ t^^A^ Mefendants' counsel, which is supposed by him to apply to the 

whole. It is said there are no charges in the l)ill to sustain the 

\ "■^ interrogatories upon which the exceptions are based ; and therefore 

that the defendants were not bound to answer the matters enquired 



CS fe > °^ ^y ^^^^ interrogatories. The counsel is undoubtedly correct in 



y. 







Bank v. Levy 103 

the principle that a defendant cannot be called upon to answer any 
interrogatory which is not founded upon some allegation or charge , 
in the bill. (Miti'ord, 1th Lond. ed. 45. 1 Xowl. Prac. 3d Lond. ' 
ed. 255.) But it is not necessary that the interrogatory should arise 
directly out of one of those material averments in the bill upon 
which the complainants' right to relief essentially depends. It is 
sufficient to entitle him to an answe r to_ thc interrogatory, if IF is 
foundedjjjjojj: ^ statement in the bil l which is set upjnerely ^s 
evidence in support of the main charges therein . In framing an 
ordinary bill in chancery the pleader has a two-fold object, dis covery 
and relief. The allegations in the bill, so far as the question of the 
complainants' right to relief is concerned are substantially in the 
same form as the averments in a declaration at law. And the 
pleader must state his clients' cause of action in such a manner that 
the main facts upon which his right to relief depends may be put 
in issue and tried. But the complainant, jn additioii to this, has 
aj2Sh^io_cxanij^e_thc^defe^ oath, in support of the mam 

charges upon which his claim to the in tej:pi)gition_of_tlic_court in liis 
favor is based, and also as to any collateral f acts, which m ay be 
material in determining th e extent, or ki nd of rehef to which he i s 
e ntitled, Tf the main cEargesTn the bill are admitted or^ proved. 
He may, therefore, state any matters of evidence in his biUwhich 
may be material in establishing the main charge, or in ascertaining 
the nature or kind of relief proper to be administered; and may 
interrogate the defendant as to those matters. In tliis case some 
of the main facts, upon which the complainants seek relief against 
the defendant Wolfe, are, that the money was fraudulently obtained 
from the bank, and was placed in his hands without consideration, 
where it remained at the time of the examination before the recorder, 
when the circumstances of the fraud appeared upon the examination 
of these defendants on oath. And there can be no doubt, in this 
case, that if the fact is established that the money was improperly 
and fraudulently obtained from the complainants' clerks, and that 
Wolfe had notice of that fact before he parted with the money or 
paid a valuable consideration therefor, he cannot in equity be per- 
mitted to retain the same as against the just claims of the complain- 
ants thereon. (Tradesmen Bank v. Merritt, 1 Paige's Rep. 302.) 
The allegations in the bill as to what took place before the recorder 
are therefore material, not only to show that Wolfe then had notice 
of the fraud, while the money was still in his hands, but also as 



104 Interrogating Part 

evidence in support of the main charge of fraud and collusion, upon 
which the complainants' claim as against Wolfe mainly rests. 

Tlie fourth exception to the answer of Levy, which is the first 
allowed hy the vice chancellor, relates to the amount due the com- 
plainants on their judgment. In a case of this kind the 189th 
rule requires the complainant to state the true sum due on his judg- 
ment, over and above all just claims of the defendant by way of 
set-off or otherwise. This allegation in the bill was therefore ma- 
terial; and the defendant probably intended to admit the whole 
amount of the judgment and the interest thereon to be due, as stated 
in the bill. But by a slip in the phraseology of the answer the 
proper admission is not made. I must therefore, though with some 
hesitation, affirm the decision of the master and the vice chancellor 
as to this exception. 

The fifth exception is for not answering an interrogatory which 
calls upon Levy to disclose whether the overdrawing at the bank 
was not voluntary and premeditated. The charges in the bill are 
that the moneys were obtained by overdrawing, and by fraud and 
collusion between him and Wolfe, his son-in-law; and that it ap- 
peared on the examination before the recorder that the overdrawing 
was voluntary and premeditated. The discovery called for by this 
exception is material in the establishment of a fraud in obtaining 
the money from the bank. A wilful and intentional overdrawing, 
by a person who knew he had not the means of making good his 
account, might be a gross fraud, considering the manner in which 
business is done in the banks of our large commercial cities ; espe- 
cially if it should appear that several checks were drawn at the same 
time and presented separately, or by different individuals, so as to 
elude the vigilance of the officers of the institution, by giving to 
such checks the appearance of ordinary business drafts. Whereas 
if the drawer overdrew by mistake, or under the supposition that he 
would have funds there to meet the drafts at the time they were 
presented, or before the bank closed, the transaction would be per- 
fectly fair and honest, if no means were resorted to for the purpose 
of preventing the officers of the bank from noticing the fact that 
he had not funds in the bank at the time. This exception was there- 
fore properly allowed. 

The sixth exception is founded upon an interrogatory, in the bill, 
calling upon Levy to disclose whether he delivered the checks, on 
which the money was obtained, to Wolfe, or to any other person for 



Bank v. Levy 105 

his use; and to whom in particular. He says lie delivered two of 
the cheeks to the clerk of Wolfe, hut does not disclose who that clerk 
was. It may be material to ascertain who that clerk was, not only 
for the purpose of showing that the complainant's money went 
directly into the hands of Wolfe, but also to ascertain how much 
went there. Even if the separate answer of Wolfe could be referred 
to as an admission that the money came to his hands, it does not 
remove the difficulty ; as he only admits the receipt of two thousand 
dollars, and there are no two of the checks corresponding in amount 
with such admission. The discovery of the particular individual 
to whom the checks were given may also be very material on other 
grounds, which it is not necessary here to state. The complainants 
having distinctly called for a discovery as to the person to whom the 
checks were given, there is no good reason assigned for withholding 
his name. 

The eighth exception is founded upon an interrogatory calling 
upon Levy to state whether Wolfe is not now indebted to him; 
and if so, in what amount. I have not been able to find any allega- 
tion in the bill on which to sustain this interrogatory, to the extent 
claimed by this exception. Except from the allegation that it ap- 
peared on the examination before the recorder that Wolfe was then 
indebted to Levy, there is nothing on wliich to found a presumption 
that he was indebted to him at the time of filing the complainant's 
bill, or at any time since. And a defect in the charging part of 
the bill cannot be supplied by a subsequent interrogatory; which 
is to be construed by the charging part, and is not to be considered 
more extensive. The fact of the indebtedness at the time of the ex- 
amination before the recorder, is admitted by the answer of Levy. 
But he further states, that subsequently, and before the filing of 
this bill, he compounded with Wolfe at the rate of twenty-five cents 
on a dollar, and received the amount thus agreed upon, in full 
satisfaction and discharge of his debt. As there is no suggestion of 
any subsequent indebtedness by Wolfe to him, I must consider this 
a perfect answer to every thing that could properly be inquired of, 
or which he was bound to answer under this interrogatory. This 
exception cannot therefore be sustained. 

The tenth exception is evidently well taken; as the defendant 
Levy admits, by implication at least, that he has still in his posses- 
sion a part of the moneys received from Wolfe on the compromise 
with him. The complainants are entitled to a discovery of the 



106 Intereogating Part 

nature and amount of all the property and effects of their judgment 
debtor, as well to sustain and prove the allegation in the bill that 
he had property to the value of $100 or more, so as to give this court 
jurisdiction to make a decree in their favor, as to have such property 
applied to the satisfaction of their debt. 

The eleventh exception is not well taken. As there is no allega- 
tion or suggestion in the complainants' bill that the purchasers of 
the notes, or the other Carolina property, did not purchase that 
property fairly and bona fide, it would not benefit the complainants 
if Levy should admit that he sold the notes, and his interest in the 
other property, for less than half their value. Although the court 
might b€ satisfied that he parted with the property in that manner 
for the purpose of defrauding his creditors, yet, if the vendees pur- 
chased it in good faith, their title cannot be disturbed. And the 
establishment of the fraud against Levy would not make him liable 
to the complainants beyond the amount of their debt, for which 
he is liable in any event. If there had been any allegation in the 
bill, suggesting a fraudulent agreement between him and Wolfe 
to overdraw the bank, and then to sell off his property and to put 
the proceeds in the hands of the latter to keep it out of the reach of 
legal process, it might have presented a different question. 

The permission to the complainants to amend their bill was a 
matter of course, under the -ISth and 190th rules, upon the allow- 
ance of any of the exceptions for insufficiency. A majority of the 
exceptions to the answer of Levy not having been finally allowed, 
the complainants are only entitled to the costs of the original ex- 
ceptions which were allowed. And neither party is to have any costs 
upon the reference, or upon the hearing before the vice chancellor, 
or upon this appeal. The order of the vice chancellor is to be modi- 
fied accordingly. 

The second exception to the answer of Wolfe is founded upon the 
neo-lect of this defendant to state in his answer whether he was the 
son-in-law of his co-defendant Levy. The fact of relationship is 
not material to the relief sought by this bill against either of the 
defendants. But I agree with the vice chancellor that, in connec- 
tion with the facts charged, it might not be unimportant as a cir- 
cumstance to sustain the charge of fraud. The difficulty, however, 
in sustaining this exception is, that the relationship is stated in the 
bill by way of recital merely, and not as a positive allegation. And 
there is no interrogatory calling upon the defendant to answer as to 



Bank v. Levy 107 

his relationship to Levy. Altliough a mere recital of a fact may 
perhaps be sufficient to justify an interrogatory calling upon the 
defendant to answer as to that fact, so that it may be used as evi- 
dence, yet I do not tliink he was called upon in this case without 
such an interrogatory, to admit or deny the fact recited. This ex- 
ception should therefore have been disallowed. (See Alhretcht v. 
Sussmanii, 2 Ves. & Bea. 323.) 

The matters of the third and fourth exceptions, to the answer 
of this defendant, appear to be very material to the establishment 
of the complainants' claims against him, for the moneys alleged 
to have been obtained from their bank by fraud and collusion. The 
defendant is particularly interrogated as to the matters of these ex- 
ceptions; and the particular sums of money received by him from 
Levy, and the precise time at which each particular sum was re- 
ceived by him, appear to be material when taken in connection with 
other facts in the case. He must also answer, not only as to his 
knowledge of the fact of the money having been overdrawn from 
the bank, but as to his understanding, belief and reasons for sup- 
posing that the money had bc^n thus obtained, and as to the time 
when that information was first received by him. These two excep- 
tions were therefore properly allowed. 

The fifth exception calls upon this defendant to answer whether 
he admitted, when under oath before the recorder, that he had re- 
ceived the sum of $4,300 of Levy, with a knowledge that the same 
had been overdrawn from the complainants' bank. By the pre- 
ceding exception, the defendant was called upon to answer as to the 
fact of his knowledge of the overdrawing at the time he received 
the money from Levy. If, in answering that exception, he admits 
he had such knowledge, it cannot be material for the complainants 
to show that he made a similar admission on his examination before 
the recorder. On the contrary, if he denies that he had such knowl- 
edge, the complainants cannot compel him to answer whether he 
swore differently on the occasion alluded to : as that might subject 
him to a prosecution for perjury. The complainants must therefore 
confine themselves to the answer to the main fact ; and this excep- 
tion must be overruled, as one which the defendant may not answer 
with safety to himself. As the money was still in his hands at the 
time of his examination before the recorder, if he was then informed 
that it had been obtained from the bank, by Levy, illegally and 
improperly, it is perhaps not very material to inquire whether he 



108 Prayer for Belief 

had any previous knowledge of the fact : as he could not afterwards 
pay it over to Levy, so as to deprive the complainants of their rights 
as against himself. 

The sixth exception calls upon Wolfe to disclose what disposition 
was made of the money received by him from Levy, and what has 
become of that part of it which remained in his hands at the time 
of his examination before the recorder. This exception is evidently 
well taken; as the complainants are entitled to follow their money, 
so long as it can be traced and identified, into the hands of any per- 
son who has not actually received it for a valuable consideration 
without notice of their rights. 

The order of the vice chancellor, which is appealed from by this 
defendant, must therefore be modified so as to conform to this de- 
cision. And as a majority of the exceptions to this answer are not 
allowed, the complainants are not entitled to the costs of the refer- 
ence. And neither party is to have costs as against the other upon 
the exceptions taken to the master's report, or upon the hearing 
before the vice chancellor, or upon this appeal. 




Prayer for Eelief. 

"j> ^ holden V. Holden, 2h HI App. 106. (1881.) 

tJ^f' y^MoRAN, P. J.: 

m , ^ The question is whether, under the facts stated in the bill, a case 
1 jK is made for equitable cognizance. It is contended that a court of 

^ 'yf equity has no jurisdiction to quiet title or remove a cloud upon the 
V +Ulo \(\ rpal psfflfp nnlpss tbp cnmnlainant is in nossession. or the 



^ title to real estate, unless the complainant is in possession, or the 

cr- -Japd is unimproved or unoccupied. Such is no doubt the general 

y\ Jy\xi\!d, but there are well recognized exceptions. 

A Where a complainant is seeking to remove a cloud which is in the 

nature of a legal title, which is being or may be asserted adversely 

to the title which he desires to protect, then he must show that he 

is in possession and therefore can not bring ejectment, or must 

allege and prove that the real estate whose title is clouded, is vacant 

or unimproved and unoccupied land. But when the facts stated in 

the bill show that the legal title claimed by the complainant is not 

disputed by the defendant in possession, but that such defendant 

sets up some equity not affecting the legal right of possession, but 



HOLDEN V. HOLDEN 109 

which operates as a cloud on the legal title and prevents a sale of 
the property, or renders the title unmarketable, then equity has 
jurisdiction, because an action at law would not afford an adequate 
remedy, and in such case the possession by the defendant, in subor- 
dination to complainant's legal title, will not defeat the jurisdiction. 

Taking the facts as alleged in the bill as true, it is very plain 
that complainant could maintain forcible detainer or ejectment 
upon the contract, and that defendant could not set up in such 
suit at law in bar of plaintiffs right of possession, that the contract 
in fact constituted a mortgage. But a judgment at law would not 
silence defendant's claim that the contract was but a security for 
money and that he had a right of redemption, and thus after a suc- 
cessful action at law defendant's claim of an equitable right in the 
land would be as complete a cloud upon complainant's title as it is 
now with defendant in possession. 

The chancery court has jurisdiction in such a case under the 
ancient head of equity, that the action at law furnished no adequate 
remedy, and such jurisdiction has been sustained by the Supreme 
Court in a case not distinguishable in principle from this case. 
Shays v. Norton, 48 111. 100. 

And in cases where there is fraud as a ground of equitable juris- 
diction, and removing the fraudulent instrument as a cloud is inci- 
dental to the general relief, even though the fraudulent title is in 
its nature a legal title, and the holder of such title is in possession, 
a court of chancery will have jurisdiction to remove the cloud. 
Booth V. Wiley, 102 111. 84. 

It is well settled that when equity has jurisdiction for one pur- 
pose, it will go on and do complete justice between the parties, and 
will not send them to a court of law because part of the relief may 
be purely legal relief. So here the court would be authorized to 
put complainant in possession if upon a hearing he maintained the 
allegation of his bill as to the nature of the contract Green v. 
Spring, 43 111. 280. 

But there is also another ground of plain chancery jurisdiction. 
Tlie contract set out is claimed by complainant in his bill to be, 
and on its face is, a contract for the sale of real estate, and defend- 
ant is shown to be in possession under the contract, and to be in 
default. 

In such case the vendor may go in the first instance into a court 
of equity, and call on the purchaser to come forward and pay the 



IIQ Prayer for Eeliep 

money due, or be forever thereafter foreclosed from setting up any 
claim against the land; and under some circumstances such is his 
only safe remedy. Hanshroiigh v. Peclc, 5 Wall. -197; Derickson 
V. Chicago South Branch Doch Co., 18 111. App. 531. 

It is true complainant has specially prayed for entirely different 
relief, but it is for the court to determine from the material allega- 
tions 'of the bill and the proofs on the hearing, what relief he is 
entitled to, and to decree him the appropriate relief and thus ter- 
minate the suit, unless, to avoid taking the relief which he is found 
by the court to be entitled to, he voluntarily dismisses his bill. 

There was in this bill the prayer for general relief, as follows: 
"That your orator may have such other and further relief in the 
premises as equity may require, and this court may deem Just." 
Under this general prayer the court could grant the relief appro- 
priate to the facts, although the bill was not framed with a view 
to getting such relief. If the facts stated entitled the complainant 
to a certain relief, it matters not that such statement of facts may 
have been made with the purpose and belief, on the part of the 
solicitor who drafted the bill, that the relief sought might flow 
from a different source of equitable jurisdiction. McNairy v. East- 
land, 10 Yerg. 309; Vansant v. Allmon, 23 111. 30. 

The dismissing of the bill in this case on motion was, in effect, 
sustaining a demurrer to the bill, and a demurrer can not be sus- 
tained on the ground that a party has prayed for the wrong relief 
where there is also a prayer for general relief, because at the hearing 
the complainant may ask at the bar for the proper specific relief. 
Wilhinson v. Beal, 4 Mod. 408; HopTcins v. Snedaker, 71 111. 449; 
Curyea v. Berry, 84 111. 600; Stanley v. Valentine, 79 111. 544; 
Westcott V. ^Vicls, 72 111. 524 ; Crane v. Hutchinson, 3 111. App. 30. 
There was error, therefore, in dismissing the bill on the motion 
of the defendant for want of equity, or for want of jurisdiction, 
and the decree must therefore be reversed and the case remanded. 

Reversed and remanded. 



Howe v. Robins 111 

Prater for Process, 
Wright V. Wright, 8 N. J. Eq. U3. (18Jt9.) 

The Chancellor: 

It is a bill for dower: this is the substantial relief prayed. The 
bill anticipates that a decree for divorce, obtained by the husband, 
in his lifetime, will be set up as a defence; and asks dower 
notwithstanding that decree; alleging that it was fraudulently 
procured, and setting out the facts on which the allegation of fraud 
is founded. The complainant might have filed her bill for dower 
saying nothing of the decree for divorce, and left that to come up 
in defence. But I see no objection to framing a bill as this is 
framed; and I think the defence should be by plea and answer, 
and not by demurrer. The grounds of demurrer, therefore, which 
go to the matter of the bill are not well taken. As to these, the 
demurrer will be overruled. 

The want of prayer for process, and of signature of counsel, are 
defects which require amendment. As to these the demurrer is 
allowed. 

Order accordingly. 



Eowe V. BoUns, 36 N. J. Eq. 19. (1882.) 

The Chancellor: 

The bill is filed to follow trust funds which, it alleges, were 
invested by a trustee by malversation in property, the title to 
which he took in his own name, and which he, at his death, 
claimed to own as his individual estate. It prays for a decree 
establishing the rights of the cestiiis que trustent in the premises, 
and incidentally for a discovery; also for a distribution of the 
fund and an injunction to protect it pendente lite. Various ob- 
jections are made to the bill under the notice, some in the nature 
of a general and others of a special demurrer. The former are 
not well taken : the latter are. The prayer for process is fatally 
defective. While the bill prays for process against "the said de- 
fendants," without naming any person, it does not appear from 



112 Prayer for Process 

the other parts of the bill, with reasonable certainty, who arc 
referred to as "the said defendants." The persons mentioned in 
the preceding part of the bill as the defendants, are the heirs of the 
trustee alone — his children. His executrix and his widow have 
both been subpoenaed to answer, but there is no prayer for process 
against either of them. They are necessary parties, and so are 
the other persons interested with the complainant as distributees 
of the fund which the suit is brought to recover, and of which 
the bill prays distribution. The complainant will have leave to 
amend on payment of costs. 

>joTE.— Defendants must be specially named in the bill, and process 
prayed against them. None are parties against whom process is not 
prayed, Windsor v. Windsor, 2 Dick. 707; Fawkes v. Pratt, i P. Wms. 
592; Elmendorf v. Delancey, Hopk. 555; Talmage v. Pell, 9 Paige, 413; 
Bondurant v. Sibley, 37 Ala. 565; Bond v. Hendricks, i A. K. Marsh. 
592; Huston V. McClarty, 3 Litt. 274; see Ferguson v. Hass, Phil. (N. C.) 
Eq. 113; unless out of the jurisdiction, Haddock v. Tomlinson, 2 S. & S. 
219; Erwin v. Ferguson, 5 Ala. 158; see Brooks v. Burt, i Beav. 109; 
Lttc'as V. Bank, i Stew. (Ala.) 280; or an infant heir whose name is 
unknown, Preston v. Dunn, 25 Ala. 507; Botsford v. O'Conner, 57 111. 
72; Kirkham v. Justice, 17 111. 107. 

A prayer that, in a certain contingency, which has not happened, another 
person be made a defendant, does not make him a party, Doherty v. Ste- 
venson, I Tenn. Ch. 518; see Valentine v. Fish, 45 111. 462. _ 

The character in which defendant is sued must also appear m the prayer, 
Carter v. Ingraham, 43 Ala. 78; Brasher v. Van Cortlandt, 2 Johns. Ch. 
242; Laii'son v. Kolbenson, 61 111. 405. _ , 

The following cases show what has been held a sufficient designation of 
the defendant in the prayer for process : Where several stockholders, in- 
cluding the objecting defendant, were mentioned by name, and that the 
subpoena be directed "to the aforesaid stockholders hereinbefore meri- 
tioned and stated," Carey v. Hillhouse, 5 Ga. 251; where a grantor left 
many children, all of whom are dead but the defendants A, B and C, and 
process prayed against the defendants, Williams v. Burnett, Busb. Eq. 209. 

The following were deemed insufficient : "That the clerk be ordered to 
issue subpoenas to the proper defendants," Hoyle v. Moore, 4 Ired. Eq. 
17s; where a corporation was defendairt, and the process was prayed 
against its president and directors, Verplanck v. Mercantile Ins. Co., 2 
Paige 438, I Edw. Ch. 84; Walker v. Hallett, i Ala. 379- tt , r-u 

Objection may be raised by demurrer, Wright v. Wnght, 4 Hal. Lh. 
143: Archibald v. Means, 5 Ired. Eq. 230; Palmer v. ^/^z^fji^ 100 Mass. 
461 ; see Boon v. Picrpont, i Stew. Eq. 7; Ferguson v. Hass, Phil. (N. C.) 
Eq 113; but is waived by the defendant appearing and answering, Seger 
v. Thomas. 3 Blatchf. 11; Airs v. Billops, 4 Jones Eq. 17; Belknap v. 
Stone, I Allen, 572; or appearing and allowing a decree pro confesso to 
be taken, Brasher v. Van Cortlandt, 2 Johns. Ch. 242.— Rep. 



,t^ 



rj 



Cakter v. Ixgraham 113 



'\y 




Carter v. Ingraham, 43 Ala. 78. (1869.) 

Peck, C. J. : 

his case originated in the chancery court of Lawrence county. 
Tljrcase appears ta have been conducted, in that court, with great 
carelessness anq^tfregularity, from the beginning to the end; and 
the transcrji^f is miserably made up, with little or no regard as to 
oi3ieT of time when the different parts of the proceedings in the 
cafcwere had. 

1^ ^ The bill was filed by the appellee, Moses Ingraham, against the 

f \ appellants, as the heirs at law of Joel W. J. Carter, deceased, the 

'^ ^y children and grand children of the said Joel W. J. Carter, ten in 

^*^ number, four of whom are infants under the age of twenty-one 

{J^ years, two under, and two over fourteen years. 

j:^ The bill states that complainant, in the year 1860, recovered a 

(^ judgment in the circuit court of said county, against the said Joel 

^ k- W,^. Carter, and one Malachi A. Carter, for the sum of fourteen 

'^ ^r^undred and fifty dollars, debt, and eighty-six dollars, damages, 

^ I ^ and costs of suit; that in 18G4, the said Malachi A. Carter de- 

^y^^ parted this life, wholly insolvent; that the said Joel W. J. Carter, 

1^ in the year 1862, departed this life, at his residence, in said county 

■^ of, Lawrence, leaving his last will and testament, which was ad- 

^ A^^mltPpd to record in the office of the probate court of said county, 

O'^ v^but it does not state the said last will and testament was proved. 

y^^)^ The bill further states, that by said will, the said Ichabod "W. 

^jZy /Carter, and one L. H. Carter were appointed executors; that 

yk> shortly afterwards, the said L. H. Carter died, leaving the said 

-^ ,.-+r Ichabod TV. Carter the sole surviving executor ; that both of said 

iy\ ^ executors qualified as such. It further states, that the said Joel 

/^ cW. J. Carter, was the owner, and was seized and possessed at the 

^^Jh^^ iuwe the said judgment was rendered, of certain lands, and died 

J^"^ seized and possessed of the same, lying and being in the said county 

' i>f Lawrence; the lands are described. The bill then states the 

^ "names of the heirs-at-law, the said Ichabod "W. Carter being one. 

Tlie bill also states that an execution was duly issued upon said 

judgment, and afterwards alias and pluries executions were issued, 

but it does not state when they were issued ; that neither of them 

were satisfied, cither in whole or part, and that said judgment 



r^ 



114 Peayer for Process 

remains wholly unpaid. He makes a transcript of said Judgment 
and execution, an exhibit to his bill, by which it appears that the 
first execution was issued the 20th of March, 1866, but the exhibit 
does not show that it ever went into the sheriff's hands, nor does 
it show that any other execution was issued. The object of the 
bill is to set up and enforce an alleged lien, under this judgment, 
against said lands, for the purpose of satisfying the same ; although 
the bill indirectly states that said Ichabod W. Carter is executor, 
&c., and also one of the heirs-at-law, it only prays process against 
him as an individual. Process is prayed against the other heirs-at- 
law, and they are all made defendants; the bill prays that 
guardians ad litem may be appointed for the infants; that the 
judgment may be decreed to be a lien on said lands, and that they 
may be sold for the payment of the same. The bill is not sworn 
to. A guardian ad litem was appointed for the said infants, but 
without an affidavit as to the fact of infancy, or that the infants 
were believed to be under, or over fourteen years of age. 

It appears, in the proceedings, that two summons were issued, 
one to the defendants, who are of age, and the other to the infant 
defendants, and they are both returned by the sheriff, "executed in 
full, November 13th, 1866," without stating, in any manner, how 
they were executed. The 20th rule of chancery practice prescribes 
how summons issued against infants may be served. By this rule 
they may be served upon their parents, or either of them, if in 
life, or in case they are dead, upon the general guardian of such 
infants. When there is no parent or guardian, or the interest of 
the parent, or parents, or the guardian, is adverse to the infants, 
if they are over fourteen years of age, then the service must be 
upon said infants personally; and if the infants are under the 
age of fourteen, then the service must be upon such person or per- 
sons as may have the maintenance and charge of such infants, 
unless opposed in interest; and if there is any case not provided 
for by statute, or by said rule, or some other rule, and proof be 
made before the chancellor or register, he may direct the mode of 
service, or appoint a guardian ad litem for such infants, Avithout 
service. It may be stated here that the bill docs not say whether 
there were any parents, or general guardian, nor does it state who, 
if any person, had the maintenance or charge of the said infants. 

The summons against the defendants of age, is against the said 
Ichabod W. Carter, as executor, and as heir-at-law. The bill, how- 



Caetee v. Ingeaham 115 

ever, gave the register no authority to issue it against him as 
executor, because no process is prayed against him in that char- 
acter, and besides, he answered the bill as heir-at-law, or as Ichabod 
W. Carter merely, and not as executor. In his answer this de- 
fendant admits substantially all the statements in the bill, but 
denies the lien, and says there is no equity in the bill, and states 
that he demurs to the bill, but does not show any reasons why he 
demurred. Section 3350, Revised Code, says, "a defendant to a 
bill must set forth the ground of demurrer specially, or otherwise 
must not be heard." A decree pro confesso was taken against the 
other defendants of age. The guardian ad litem, so irregularly 
appointed, answered the bill, and says he knows nothing of the 
truth of the allegations of the bill. 

There was no evidence by depositions taken in the case, and it 
was submitted (the demurrer of the said Ichabod W. Carter to 
the bill of complaint having been overruled), upon the bill, answer 
of said Ichabod W. Carter, answer of the guardian ad litem, 
exhibit to the bill, and the decree pro confesso entered against the 
defendants of age, who had not answered the bill. A decree was 
rendered by which it is declared, that the said judgment is a lien 
on the lands described in the bill, and unless the amount due on the 
said judgment be paid in thirty days after the adjournment of the 
court, the register should proceed to sell the said lands, and report 
to the next term of the court. 

The money not being paid, the register sold the lands, and they 
were bought by the appellee, and one Crittenden ; the master made 
his report to the court at the next term ; the report was confirmed, 
and it was ordered, adjudged and decreed, that the register make 
deeds to the purchasers and put them in possession of the lands. 

Tlie defendants have appealed to this court, and assigned several 
errors in the decree of the court below. It is, for the purpose of 
this opinion, only necessary to notice the assignment, that brings 
to the attention of this court, the appointment of the guardian 
ad litem for the infant defendants. The appointment of the 
guardian ad litem, without complying with the said 23d rule of 
chancery practice, is an error, for which the decree must be re- 
versed, on the authority of Bliett and Wife et al. v. Mastin, Trustee, 
decided at this term. The appellee's counsel insists that the 
executor, the said Ichabod W. Carter only, is a necessary party 
defendant in this case, and as he admits all the important allega- 



IIQ Prater for Process 

tions of the bill, the decree should be permitted to stand, as to 
him, in his character as executor. He says, "the only error in the 
decree was in not dismissing the bill as to all the defendants 
except the executor," and that this court should correct this error, 
by dismissing the bill as to the other defendants, and affirming 
the decree, thus corrected, against the executor. This can not be 
done, for the reason that the bill is not sufficient to authorize any 
decree against the said lehabod W. Carter as executor. The bill 
does not state that the will was proved, but only, that it was 
recorded in the probate court. This is not sufficient; it should 
have stated that the will was proved. Stating that the will was 
recorded, is not equivalent to stating that it was proved ; besides, 
no process is prayed against him as executor ; true, the summons, 
in the nature of a subpoena, was issued against him as heir-at-law, 
and as executor, but this does not help the matter, as the register 
had no authority to issue such a summons ; he should have followed 
the prayer of the bill. Nor does the answer filed by him, cure this 
defect, for he does not answer as executor, but as Ichabod W. 
Carter merely. He is, therefore, not a party defendant to the bill 
in such manner as to authorize any decree against him in that 
character. 

The bill is full of defects and infirmities, and the subsequent 
proceedings are full of irregularities, but under our liberal laws 
on the subject of amendments, it is possible the bill may be so 
amended as to make out a good case for the complainant; and 
that he may do so, if it can be done, the case will be remanded for 
that purpose. 

The demurrer to the bill of complaint was rightly overruled, 
because no grounds of demurrer are stated, as required by said 
section 3350 of the Revised Code; but if proper grounds of de- 
murrer had been stated in the answer, then the demurrer should 
have been sustained; for the bill, as it is, is clearly insufficient. 
The decree is clearly erroneous, not merely because of the error 
in the appointment of the guardian ad litem for the infant de- 
fendants, but because there is no evidence to sustain it, especially 
as to them. The admissions in the answer of the said Ichabod W. 
Carter, is no evidence against the infants, nor is the decree pro 
confcsso against the other defendants ; in fact, there is no evidence 
whatever against them. 

It is deemed unnecessary to pursue this investigation further; 



Martin v. Palmeu 117 

the decree of the court below is reversed, with all the proceedings 
back to the bill of complaint, at the costs of the appellee, with 
leave to the complainant to amend his said bill as he may be 
advised. 

Peters^ J., not sitting in this case, having been of counsel. 



te 




Signing the Bill. 'XiJ^\ 

Martin v. Palmer, 72 Vt. 409. (1900.)^^^'' J^ ' 

Chancery. Heard on bill and motion to dismiss. Orange vt^ 
County, December Term, 1899, Munson, Chancellor. Decree ren- i -O. r 
dered dismissing the bill. The orator appealed. The appeal was ,^ 
filed as of course. ^r^ ^ 



Watson, J. : 

The bill of complaint was brought to foreclose a mortgage, and 
it was signed by the orators' solicitor, but not by the orators. 
The defendant moved to dismiss the bill for that there was no 
signature of the orators thereto. The motion w^as granted, and 
the cause is here upon appeal therefrom. 

The bill is usually drawn by the orators' solicitor, and he is 
responsible for its contents. If it contains matter criminal, im- 
pertinent, or scandalous, such matter may be expunged, and the 
solicitor ordered to pay costs; and, from an early time, the gen- 
eral rule of practice has been imperative that the signature of 
counsel must be subscribed thereto. 

It was declared by Lord Eldon that such signature of counsel 
is to be regarded as a security'' that, judging from written instruc- 
tions laid before him of the case of the defendant as well as of 
the plaintiff, there appeared to him, at the time of framing the 
bill good ground of suit. Mit. & Ty. Eq. PI. & Pr. 145 ; 1 Dan. 
Ch. PI. & Pr. 357. And so it is regarded under the chancery 
practice in this State (Chancer}' Eule 8), and in the Federal 
Courts. Equity Rule 24. 

A party may sue in person and so bo his own solicitor, in 
which event only, the practice requires that his signature be sub- 
scribed to the bill. 1 Hoff. Ch. Pr. 97. 

The decree was not for the foreclosure of a mortgage, and, 



118 Cektainty in Pleading 

therefore, the orators could take an appeal without permission of 
the court therefor. V. S. 981. 

Decree reversed, and cause remanded with mandate that the 
motion to dismiss he overruled, and hill adjudged sufficiejit. 



Certainty in Pleading. 
Dovaston v. Payne, 2 H. Blaclcstone 527. (1795.) 

Eeplevin for taking the cattle of the plaintiff. Avowry, that 
the defendant was seised in fee of the locus in quo, and took the 
cattle damage feasant. Plea, that the locus in quo "lay contiguous 
and next adjoining to a certain common and publick king's high- 
way, and that the defendant and all other owners, tenants and 
occupiers of the said place in which &c. with the appurtenances, 
for the time being, from time whereof the memory of man is not 
to the contrary, have repaired and amended, and have been used 
and accustomed to repair and amend, and of right ought to have 
repaired and amended, and the said defendant still of right ought 
to repair and amend the hedges and fences between the said place 
in which &c. and the said highway, when and so often as need 
or occasion hath been or required, or shall or may be required 
to prevent cattle heing in the said highway from erring and escap- 
ing thereout into the said place in which &c. through the defects 
and defaults of the said hedges and fences, and doing damage 
there. And because the said hedges and fences between the said 
place in which &c. and the said highway, before and at the time 
when &c. were ruinous, broken down prostrated and in great decay 
for want of needful and necessary repairing and amending thereof, 
the said cattle in the said declaration mentioned just before the 
said time when &c. heing in the said highway erred and escaped 
thereout, into the said place in which &c. through the defects and 
defaults &c. &c." To this plea there was a special demurrer. For 
that it is not shewn in or by the said plea, that the said cattle 
before the said time when &c. when they escaped out of the said 
highway into the said place in which &c. were passing through and 
along the said highway, nor that they had any right to he there 
at all, &c." 

The support of the demurrer Williams, Scr jt. argued as follows : 



DovASTON V. Payne 119 

It is a rule in pleading, that if the defendant admits the fact 
complained of ho must shew some good reason for or justification 
of it. If the cattle in this case had escaped from an adjoining 
close through the default of the plaintiff's fences, the defendant 
must have shewn that he had an interest in that close, or a licence 
from the owner to put his cattle there; Dyer, 3G5. a. Sir F. Leke's 
case, recognized Hob. 104. Digby v. Fitzherhert; for a man is 
bound to repair against those who have right, but not against 
those who have no right. So if cattle escape from a highway, 
the party justifying a trespass must shew they were lawfvdly 
along the highway, that is, were passing and repassing on it, 
which is material and traversable. It is not sufficient that they 
were simply in it, the being there is equivocal and not traversable. 
The owner of the soil may have trespass, if the cattle do any 
thing but merely pass and repass, Bro. Abr. Tresp. pi. 321, and 
according to this principle the entries state in pleas of this kind, 
that the cattle were super viam prcedictam transseuntes. Thomp. 
Entr. 296, 397, and in Heme's Plead. 822 that they were "driven 
along the highway." 

Hey wood, Serjt, contra. The same strictness is not required in 
a plea in bar to an avowry in replevin, as in a justification in 
trespass. Here the plaintiff pleads the plea, and it is sufficient 
for him to shew that his cattle were wrongfully taken. The 
fassing on the highway is as uncertain as the being there, and as 
little traversable. But the material issues on the record would be, 
■whether the fences were out of repair, and whether the defend- 
ant was bound to repair them. If he were, it is immaterial whether 
the cattle were passing on the highway or not. In a plea in bar 
certainty to a common intent is sufficient. It may therefore be 
intended that the cattle were lawfully in the highway. 

Lord Ch. J. Eyre: 

I agree with my brother Williams as to the general law, that' 
the party who would take advantage of fences being out of repair, 
as an excuse for his cattle escaping from a way into the land of 
another, must shew that he was lawfully using the easoment when 
the cattle so escaped. This therefore reduces the case to a single 
point, namely, Wliother it does not apjx^ar on the plea, to a 
common intent, that tlio cattle were on the highway using it in 
such a manner as the owner had a right to do, from the words 



120 Certainty in Pleading 

"being in the said highway?" Tliis is a different case from cattle 
escaping from a close, where it is necessary to shew that the owner 
had a right to put them there, because a highway being for the 
use of the public, cattle may be in the highway of common right ; 
I doubt therefore whether it requires a more particular statement. 
It would certainly have been more formal, to have said that the 
cattle were passing and repassing, and if the evidence had proved 
that they were grazing on the way, though the issue would have 
been literally, it would not have been substantially proved. But 
I doubt whether the being in the highway might not have been 
traversed, and if the being in tlie highway can be construed to be 
certain to a common intent, the plea may be supported, notwith- 
standing there is a special demurrer, for a special demurrer does 
not reach a mere literal expression. The precedents indeed seem 
to make it necessary to state that the cattle were passing and re- 
passing, but they are but few; yet upon the whole, I rather 
think the objection a good one, because those forms of pleading 
are as cited by my brother Williams. 

BULLER, J. : 

This is so plain a case, that it is difficult to make it a ground 
of argument. But my brother Heywood says, there is a difference 
between trespass and replevin in the rules of pleading. In some 
cases there is certainly a material difference in the pleading in 
the two actions, though in others they are the same. One of the 
cases in which they differ, is that if trespass be brought for taking 
cattle which were distrained damage feasant, it is sufficient for 
the defendant to say that he was possessed of the close, and the 
cattle were doing damage : but in replevin the avowant must deduce 
a title to the close. Wherever there is a difference, it is in favour 
of trespass and against replevin : for in trespass an excuse in a plea 
is sufficient, but in an avowry a title must be shewn. This brings 
me to the question, Whether the plea on this record be good to a 
common intent? Now I think that the doctrine of certainty to 
a common intent will not support it. Certainty in pleading has 
been stated by Lord Coke (Co. Litt. 303) to be of three sorts, viz. 
certainty to a common intent, to a certain intent in general, and to 
a certain intent in every particular. I remember to have heard 
Mr. Justice Afton treat these distinctions as a jargon of words, 
without meaning. They have however long been made, and ought 



DovASTON V. Payne 



121 



not altogether to be departed from. Concerning the two last kinds 
of certainty it is not necessary to say any thing at present. But 
it should be remembered, that the certain intent in every particular 
applies only to the case of estoppels (Co. Litt. ibid.). By a com- 
mon intent I understand that when words are used, which will bear 
a natural sense, and also an artificial one^ or one to be made out by 
argument or inference, the natural sense shall prevail: it is simply 
a rule of construction and not of addition: common intent cannot 
add to a sentence words which are omitted. There is also another 
rule in pleading, which is, that if the meaning of words be equivo- 
cal, they shall be taken most strongly against the party pleading 
them. There can be no doubt that the passing and repassing on 
the highway was traversable; for the question. Whether the plain- 
tiff was a trespasser or not? depends on the fact whether he was 
passing and repassing and using the road as a highway, or 
whether his cattle were in the road as trespassers; and that which 
is tJie gist of the defence must necessarily be traversable. A 
most material point therefore is omitted, and I think the plea 
would 1)0 bad on a general demurrer. But here there is a special 
demurrer, and as the words are equivocal they are informal. 

Heath, J. : 

The law is as my brother Williams stated, that if cattle of one 
man escape into the land of another, it is no excuse that the fences 
were out of repair, if they were trespassers in the place from whence 
they came. If it be a close, the owner of the cattle must shew an 
interest or a right to put them there. If it be a way, he must shew 
that he was lawfully using the way; for the property is in the 
owner of the soil, subject to an easement for the benefit of the 
public. On this plea it does not appear whether the cattle were 
passing and repassing, or whether they were trespassing on the 
highway; the words used are entirely equivocal. 

EooKE, J. of the same opinion. 

Judgment for the defendant. 



'i:i 



122 \r \ Certainty in Pleading 




^y 



Eartwell v. Blocker, 6 Ala. 581. (18U-) 



-Hrli. 



RiT of error to the Court of Chancery sitting at Mobile. 
. ^Jf(y^n the 27th of February, 1843, the defendant in error filed his 
P'^'^''^ bill, setting forth that on the eighteenth of August, 1836, Eleazer 
iy^ /) Hartwell and John Hartwell were indebted to Abner S. Lips- 
^ y^^ comb and George W. Owen, since deceased, in the sum of sixteen 
^ j£>hundred and five dollars, by six promissory notes (particularly 
jACi described), for different sums, payable at different times at the 

'^ ^ Planters' and Merchants' Bank of Mobile. In order to secure 
^/-^^^ the payment of these several notes, Eleazar and John Hartwell 

/ v*^ / conveyed five tracts of land situate in Mobile county, containing 
a^ IT ten acres each; conditioned that the same should be void if the 
^y^^^^ mJi' notes should be paid according to their tenor and effect. The 
[(4^j^ bill alleges, that the notes are due and unpaid; and recites, that 
' -^ ^ t]£e complainant is the assignee of Abner S. Lipscomb and Louisa 
^^ rA-^. Owen, the administratrix of George W. Owen, deceased; and 
^ O^ that Eleazar Hartwell, by deed bearing date the 26th of July, 
1838, conveyed his interest in the lands in question to John 
1. 
^1^ ' /A/Uohn Hartwell and Josiah Wilkins, who, it is alleged, holds 
Af rounder him, are made defendants. The bill concludes with a prayer 
9^^^ than an account may be taken, the equity of redemption in the 

A mortgaged premises foreclosed, and the lands sold, &c. Fur- 

j£^ . ther, that process of subpoena may issue, &c. 
"^^^'^ \ v"*^ Subpoena issued on the 1st March, 1843, was executed on Wil- 
J<y^' o kins on the 2d, and on Hartwell on the 3d of the same month; 
''Ar^ and on 4th of April thereafter, a decree iwo confesso was entered 
/ij'*' ^ against the defendants. Thereupon, the notes and mortgage, 
^^ being produced and proved to the court, were, with the bill, re- 
/y^ -ijt ferred to the master to ascertain the amount due and owing to 
\ « A^ the complainants ; and report accordingly at the then term of the 
'\. ■jiAm' court. The master reported, "that on examination of the mort- 
em gage, bill and notes, he finds due as follows, to wit : on the 18th 
J^ August, 1837, a note for $356 34; on the 18th February, 1838, a 

C> note for $368 34; with interest on the said notes from the times 

<?-A when they respectively fell due." 
^1 On the 11th of April, 1843, during the same term, a motion 




Hartwell v. Blocker 133 

was made for the confirmation ol' the report and a decree for the 
sale of the mortgaged premises. Thereupon, reciting that it was 
shown to the court, that the parties have had two days' notice of 
the contents of the report; that no exceptions were filed, and no 
objection made, it was decreed that the report be in all things 
confirmed ; that the defendants pay into the hands of the register, 
within sixty days, the amount rei^orted due, with interest and 
costs of suit : in default thereof, the master proceed to sell the prop- 
erty described in complainant's bill and mortgage, or so much 
thereof as may be necessary to satisfy the decree, in separate par- 
cels or entire, as may best promote the defendant's interest, at 
public auction, in front of the couiijiouse of Mobile county, under 
the same rules and regulations that govern sheriffs in making 
sales of like property under execution. Further, that he give 
public notice once a week for thirty days previous thereto, by 
publication in some newspaper printed in the city of Mobile; and 
also, by posting notice on the door of the courthouse of the county. 
The master was directed to report his proceedings to the next 
term of the court. 

At a further day of the same term, the defendants moved to set 
aside the report and order of reference, on the ground that Eleazar 
Hartwell had not been made party to the suit. But the chancellor 
was of opinion, that as he had made an absolute assignment of 
his interest in the mortgaged property, there was no necessity for 
making him a party; and accordingly he overruled the motion. 

Collier, C. J. : 

It was said by Lord Hardwicke, that in pleading, "there must 
be the same strictness in equity as at law." (2 Atk. Eep. 632.) 
But Mr. Justice Story says, "however true this may be as to a plea 
in equity, technically so called, it can hardly be affirmed to be true 
in the framing of bills or answers, in respect to which more liber- 
ality prevails. And it may, perhaps, be correctly affirmed, that 
certainty to a common intent is the most that the rules of equity 
ordinarily require in pleadings for any purpose." (Eq. Plead. 
206.) 

Uncertainty in a bill, it is said, may arise in various ways : 1. 
In the case intended to be made by the bill. 2. Though the case 
intended to be made be certain, yet the allegations of the bill may 
be vague and general. 3. Some of the material facts mav be 



124 Certainty in Pleading 

stated with sufficient certainty, and others again with so much 
indistinctness or incompleteness as to their nature, extent, date, 
or other essential requisites, as to render inefficient those with 
which they are connected, or upon which they depend. (Story's 
Eq. Plead. 207, et post, and cases there cited.) In Cresset v. 
Milton (1 Ves. jr. Eep. 449), the bill was brought to perpetuate 
a right of common and way; the allegation was, that the tenants, 
owners and occupiers of certain lands of a manor, "in right 
thereof or otherwise" from, &c., had and of right ought to have 
common of pasture, &c. The bill was held bad on demurrer; 
for "it was not set forth as common appendant, or as common 
appurtenant, but as that, "or otherwise," which was no specifica- 
tion at all, and left any sort of right open to proof. So, in Jones 
V. Jones (3 Meriv. Eep. 160), which was a bill by an heir at law 
to restrain the defendant from setting up an outstanding term, 
&c.; but as there was no averment of any outstanding terms, it 
was held bad on demurrer. And where a bill sought a general 
account upon a charge of fraud, it is not sufficient to make such 
charge in general terms; but it should point out particular acts 
of fraud. {Palmer v. Mure, 2 Dick. Eep. 489.) But the com- 
plainant is not bound to state all the minute facts; the general 
statement of a precise fact is usually sufficient. The circum- 
stances which confirm or establish it, more properly constitute 
matters of proof than of allegation. (Story's Eq. Plead. 213.) 

In the present case, the complainant describes himself as the 
assignee of A. S. Lipscomb and the administratrix of G. W. 
Owen, deceased; and after describing the date, and amount in- 
tended to be secured by a mortgage to L. and the intestate, the 
bill continues, "whose interest has been legally transferred and 
assigned over unto your orator, that certain part or parcel, situ- 
ate," &c. (here follows a description of the mortgaged premises). 
The notes are described as bearing even date with the mortgage, 
payable some of them to the order of the defendant Wilkins, the 
others to the order of the makers; and all of them for unequal 
sums, payable and negotiable at the Planters' and Merchants' 
Bank of Mobile. It is charged, that although the notes have since 
been due and payable, yet the mortgagors have failed and re- 
fused to pay the same, "whereby the legal estate to the said prem- 
ises has become absolute in your orator." In all this, there is 
no allegation that the complainant is the assignee of the notes, or 



Haetwell v. Blockee 125 

either of them ; the inference that such is the fact, is not necessary 
and direct. It may or may not be so. If the terms in which the 
case is attempted to be stated, are to be understood as having 
been employed according to their appropriate use, and with their 
usual meaning, they raUier show that the complainant is the as- 
signee of the mortgage than the notes. And it is not only not 
alleged that the complainant was the assignee of all the notes, but 
it is not stated that if either or any of them was assigned to him, 
which it is. 

It may be true, that tlie mortgage may have been assigned to 
the complainant by the mortgagees, yet this would not authorize 
him to file a bill for a foreclosure. In Doe ex dem. Duval's heirs 
V. McLosley (1 Ala. Eep. X. S. 708), it was determined, that a 
mortgagee cannot assign the right to the mortgaged property 
without also assigning the debt to which it is an incident, yet it 
seems he may relinquish, hy contract, the possession of the mort- 
gaged premises to a third person until the debt is paid. 

Without amplifying the point, it sufficiently appears from what 
has been said, that the bill is obnoxious to the objection of uncer- 
tainty. That even if the case intended to be made by the bill is 
certain, the allegations are too vague and general to authorize a 
court of equity to entertain it. 

Although some of the notes are payable to the order of the 
makers, and do not, upon their face, import a promise to pay any 
one, yet the mortgage is an acknowledgment that they were the 
property of the mortgagees — that the mortgagors were bound to 
pay them; and in order to their security, conveys the land de- 
scribed in it. This is quite sufficient to show, that the notes have 
been transferred by the maker, whether by writing, or mere de- 
livery is wholly immaterial in the present case. True, in order 
to maintain an action at law upon them, the plaintiff should show 
a regular transfer; but it is competent for the holder to entertain 
a suit in equity, thougji they were transferred by delivery only. 

The bill should state of which of tlie notes the complainant is 
the proprietor; if any one of them maturing before those he holds 
is paid, or outstanding, unpaid, the fact should be stated, and the 
holder made a party. In respect to subsequent incumbrancers, 
although they are proper, 3'et they are not indispensable parties. 
(Judson V. Emaiutc'l, ct al 1 Ala. Eep. X. S. 598; CuIJum, et ah 
V. Batrc's ex'rs, 2 Ala. Eep. 415.) 



136 Certainty in Pleading 

In respect to the other questions made by the plaintiffs in error, 
it is unnecessary now to consider them. They are mere questions 
of practice, about which it is not probable that any controversy 
will arise in the ulterior progress of the cause; especially if the 
decisions we have heretofore made touching the interest of sur- 
viving payees, the powers of executors and administrators, parties 
in equity, the registration of deeds, and the duties of masters in 
chancery, are consulted. 

It follows from what has been said, that the decree of the court 
of chancery must be reversed, and the cause remanded. But inas- 
much as no objection to the frame of the bill was taken in the 
primary court, the defendant in error will not be taxed with the 

tire^feosts ; each party will pay their own costs in this court. 

y^^ — 

i V. Inman, Jf Johns. Ch. (N. Y.) W- (1820.) 





Exceptions to the defendant's answer: 1. That the answer 

sets forth, in hcec verba, a copy of the power of attorney from the 

plaintiff to the defendant and William Lang, mentioned in the 

bill, though the defendant was not requested so to do, and though 

^he substance of the power was fully stated in the bill, and when, 

by setting it forth in hcec verba, the sense and legal effect of it 

ara not, in the least, qualified or varied from the same instrument 

a& set forth in the bill. 

-v^ 2. Because the defendant has, in his answer, from a part of the 

17th page thereof, to a part of the 19th page thereof, beginning, 

^ &c. stated matters not necessary to answer any allegations in the 

,y^ bill, to which he is not interrogated, and upon which no pertinent 

^ ^interrogatories can be framed, or depositions given, and wliich are 

' /^^ totally irrelevant, immaterial, and highly scandalous. 

-^ i^^i^ 'T3a€ exceptions, having been referred to a master, were allowed 

y him, and the defendant excepted to liis report. And the ques- 

(/- ^ ition now came upon the exceptions to the report. 

ffJ^ The Chancellor: 

/^/^^ t _, 'i- It was not necessary to set forth the power of attorney in 
^ , V"^ 7i(Ec t;er?ja, in the answer. The substance of it was accurately stated 
^ i^ in the bill, and to give it at length in the answer, was impertinent. 

o"-^ Impertinence consists (1 Ilarr. Pr. 101. 303) in setting forth what 



A 



Hood v. Inman 127 

is not necessary to be set forth, as where the pleadings are stuffed 
with long recitals, or with long digressions of matters of iax:i which 
are totally immaterial. An answer, or a bill, ought not, ordinarily, 
to set forth deeds in hcec verba; and if the pleader sets forth only 
so much thereof as is material to the point in question, it is suf- 
ficient. They are matter of evidence to be shown at large at the 
hearing. In Alsager v. Johnson (4 Ves. 217) a bill of costs was 
given at large in the schedule to the answer, when a reference to 
the bill of costs delivered would have fully answered the purpose, 
and it was dcH^med impertinent. The present is not an instance of 
gross abuse of this rule of pleading ; but I am glad to see the excep- 
tion taken, and the point brought up, for the opportunity it affords 
of laying down the rule. I have frequently perceived the pleadings, 
and particularly the bill, encumbered with a recital, in hcec verba, 
of deeds, mortgages, and ot^er documents, which, unless checked, 
will lead to great oppression of the suitor, and to the reproach of 
the Court, Whenever a proper case arises, I shall certainly mark 
it with animadversion; and shall endeavor to enforce, by all suit- 
able means, precision and brevity in pleading. The objection to 
unnecessary folia, may be taken on the taxation of costs. 

The ancient rules and orders of the English Court of Chancery, 
are very explicit, and powerfully monitory on this subject. 

If any pleading should be found of an immoderate length, Lord 
Bacon declared, that both the party and the counsel, under whose 
hand it passed, should be fined. And Lord Keeper Coventry, with 
the advice of Sir Julius Caesar, the master of the rolls, in 1635, 
ordained, that bills, answers, &c., "should not be stuffed ^\^th the 
repetitions of deeds or writings in hcec verba, but the effect and sub- 
stance of so much of them only as was pertinent and material to 
be set down, and that in brief and effectual terms, &<?., and upon 
any default therein, the party and counsel, under whose hand it 
passed, should pay the charge of the copy, and be further punished 
as the case should merit." 

The same rule was, afterwards, adopted, or re-enacted, by the 
lords commissioners in 1649, and in Lord Clarendon's Digest or 
System of Eulcs (Beame's Orders, 25, 69, 1G5). 

But we have a domestic precedent on this point, which is too 
interesting to be unnoticed. 

In 1727, Governor Burnet, of the colony of Xew York, exercis- 
ing, in council, the powers of a Court of chancer}-, appointed five 



128 Certainty in" Pleading 

of the most distinguished counsel of tlie Court, as a committee, 
*'to consider and report on the fees and dilatory proceedings in the 
Court of Chancery, as true and great grievances." This commit- 
tee, consisting of Archibald Kennedy, Eip Van Dam, Cadwallader 
Colden, James Alexander, and Abraham A'^an Horn, reported to 
the counsel a number of abuses in the practice of the Court of 
Chancery, and the remedy. This report, which is inserted at the 
end of Bradford's edition of the Colony Laws, is a curious and in- 
structive document ; but my concern, at present, is only with what 
is termed the first abuse and remedy. It declares, "as an abuse, the 
inserting, at too much length, in bills, matters of inducement only. 
Thus, if A. has been entitled to the thing in question, who con- 
veyed it to B., who conveyed it to C, who conveyed it to the plaint- 
iff; after tlie thing is certainly set forth in A., it is enough to say, 
he conveyed it to B,, and he to C, and he to the plaintiff, as, by 
the deeds ready to be produced, will appear." No counsel, say they, 
ought to set their hands to any hill that is unduly long, and if he 
does, he ought to pay all the charges arising from such needless 
length. 

The exception to the master's report, allowing this first excep- 
tion, is overruled. 

2. The same objection applies to the matter forming the ground 
of the second exception. It was matter argumentative, rhetorical, 
irrelative, and, consequently, impertinent. Pleadings should con- 
sist of averment, or allegations of fact, and not of inference and 
airgument. 

The exception to the report is, also, overruled; and as the fault 
of the pleader was of a venial character, I am content that the costs 
of the exceptions, in this particular case, should abide the event of 
the suit. 

Order accordingly. 



CHAPTER IV. 

PROCEEDINGS ON BEHALF OF PLAINTIFF 

Filing the Bill. 




Bank v. Iloyt, 7Jf Miss. 221. (189G.) ^"^ j^ 

ir 
From the chancery court of Lauerdale county, /ff 

Hon. N. C. Hill, Chancellor. A/^ c^ 

The opinion states the case. v ^ i j^ 

Whitfield, J., delivered the opinion of the court. ^ 
The question which lies at the threshold in the decisio 
case is whether the bill of appellant was filed, within the contempla- \ / 
tion of law, on May 5, 1893. Tlie facts are these: On May 5,1^^-^ 
1892, appellant's counsel took the bill and the exhibits in one cover 
to the chancery clerk, and had him indorse on the bill the word^ 
''filed," etc., and the clerk made a corresponding entry in the gen- 
eral docket, and prepared a regular court wrapper, and put it 
around the papers. But counsel immediately took the bill and j > , 'J^ 
exhibits back to his office, telling the clerk that he did not wish a"/ 
process issued then, but not giving him any reason for not issuing /^ \ 
process. The clerk charged the counsel with the papers in his at- ,^^ ^h 
torney's docket. The bill was kept by counsel in his office until ■^ .a 
tlie ninth of JMay, when he returned the bill, and process was issued V- ^ 
and served on the tenth. In the meantime, on May 7, 1892, counsel (r ^>^ 
for appellees took their bill to the clerk of the chancery court, and ,L/ "y 
it was filed on that day, and process issued and served that day.^/v" 





Said counsel had, on the fifth of May, gone to the clerk's office, ,y^ \iJ 
to see what bill, if any, had been filed, and was told a bill had been i *<' ^ 
filed by counsel for appellant, and was shown the entry on the" ;/^ 
general docket, and informed that the papers were at the office r^ J^ . 
of appellant's counsel. These are all the facts bearing on this iJ^ / 
question. aA 

The code of 1892, § 4G3, provides that the clerk "shall not sufferj^ V 
11 ny paper so filed to be withdrawn but by leave of the chancellor, t 
and then only by retaining a copv, to be made at the costs of the 
party obtaining the leave. All the papers and pleadings filed in 
9 129 







130 Filing the Bill 

a cause shall be kept in the same file, and all the files kept in 
numerical order." In Cooper v. Frierson, 48 Miss. 310, in con- 
struing the clause under the agricultural lien law of 1867, 'Tie 
must file the contract, or a copy thereof, in the clerk's oflace," the 
court said : "The statute is not satisfied by the indorsement on the 
contract that it was filed, if the creditor withdraws it, and keeps 
it. . . . The term 'filing' imports that the paper shall remain 
with the clerk as a record, subject to be inspected by those who 
have an interest in it, and to be certified by him as any other paper 
properly lodged in his office and committed to his custody. It is 
admitted that Frierson's contract was not, in this sense, 'filed' in 
the clerk's office. It follows, then, that he has no lien." 

Anderson's Law Dictionary defines the noun "file" as follows: 
"At common law, a thread, string, or wire upon which writs or 
other exhibits are fastened for safe-keeping and ready reference." 
And the definitions of Webster's International Dictionary and the 
Century Dictionary are to the same effect. The verb Anderson 
thus defines: "To leave a paper with an officer for action or 
preservation"; and he adds: "In modem practice, the file is the 
manner adopted for preserving papers. The mode is immaterial. 
Such papers as are not for transcription into records are folded 
similarly, indorsed with a note or index of their contents, and tied 
up in a"^ bundle— a file." Webster quotes Burrill, as follows : "To 
file a paper on the part of a party is to place it in the official cus- 
tody of the clerk. To file on the part of the clerk is to indorse upon 
the paper the date of its reception, and retain it in his office, subject 
to inspection by whomsoever it may concern." Mr. Freeman, in a 
learned note to Beehe v. Morrell (Mich.), 15 Am. St. Eep. 295 (42 
N. W. 1119), thus sums up: "Filing consists simply in placing 
the paper in the hands of the clerk, to be preserved and kept by him 
in his official custody as an archive or record, of which his office 
becomes thenceforward the only proper repository; and it is his 
duty, when the paper is thus placed in his custody, or filed with 
him, to indorse upon it the date of its reception, and retain it in 
his office, subject to inspection by whomsoever it may concern; 
and that is what is meant by filing the paper. But, when the law 
requires a party to file it, it simply means that he shall place it in 
the official custody of the clerk. This is all that is required of 
him; and, if the officer omits the duty of indorsing upon it the 
date of the filing, that will not prejudice the rights of tbe party. 



Bank v. Hoyt 131 

This seems to be universal in its application to all documents, of 
whatever nature, which the law requires to be filed," citing many 
authorities, to the following among which we especially refer: 
Ilolman v. Chevallier, 14 Tex. 339; Bishop v. Cooh, 13 Barb. 329; 
Phillips V. Beencs Admr. 38 Ala. 251. 

In Ffirmann v. Ilenlel, 1 111. App. 145, cited in 7 Am. & Eng. 
Enc. L. (1st series), 962, the case was this: "A certificate and 
affidavit required to be filed under a limited partnership act, were 
sent by a messenger to the clerk's office, and there presented for the 
purpose of being filed. The deputy clerk, to whom they were pre- 
sented, instead of retaining them, by mistake added a certificate 
of the official character of the notary before whom they were 
acknowledged, and returned them to the messenger, by whom they 
were carried away. Several months afterwards they were returned 
to the county clerk's office and properly filed. As against a creditor 
whose debt accrued before tlie papers were returned to the clerk's 
office, it was held that the first presentation of them did not con- 
stitute a filing. "Filing a paper," said the court, "ex vi termini, 
means placing and leaving it among the files. The memorandum 
indorsed by the officer in whose custody it is placed is merely evi- 
dence of the filing, and not the filing itself." 

We close the citation of authorities with the result in modem 
practice, as stated by Mr. Freeman in the note above referred to 
(page 294, vol. 15, Am. St. Eep.) : "The word 'file' is derived 
from the Latin 'filum' signifying a thread, and its present appli- 
cation is evidently drawn from the ancient practice of placing 
papers upon a thread or wire for safe-keeping. The origin of the 
term clearly indicates that the filing of a paper can only be effected 
by bringing it to the notice of the officer, who anciently put it 
upon the thread or wire; and accordingly, under the modem 
practice, the filing of a document is now generally understood 
to consist in placing it in the proper official custody by the party 
charged with the duty of filing it, and the receiving of it by the 
officer, to be kept on file. The most accurate definition of filing 
a paper is that it is its delivery to the proper officer, to be kept on 
file." 

In Christian v. O'Neal, 46 Miss. 672 (a case of an attempt to 
enforce a mechanic's lien, in which, as in a chancery suit, the 
filing of the petition is the commencement of the suit), it was 



132 Filing the Bill 

said : "If a petition was not on file when this or the writ of June, 
1861, was issued, suit was not begun." 

We have quoted thus largely from the authorities, because the 
determination of this point will be decisive of the case. It is clear 
that marking the paper "filed" is not filing it. A paper may be 
marked filed, and yet not be in fact filed; and a paper may be in 
fact filed, though not marked filed. And the entry on the general 
docket does not constitute filing. All these indorsements of the 
clerk are evidence, but not conclusive evidence, of a filing. What- 
ever the nature of the paper, it can only be filed by dehvering it 
to the proper officer, to be by him received and dealt with in the 
manner usual with the particular character of paper. If a deed, 
for example, or other paper required to be recorded, it must be kept 
by the clerk until recorded; if any paper, in respect to which a 
statute requires the original or a copy to be filed, the original may 
not be withdrawn till a copy has been filed. If a bill in chancery, 
it must be delivered to the clerk, to be by him received, indorsed, 
and dealt with in the manner usual with such bills. It must be 
delivered and recorded with the purpose of having process issue in 
due course. Suits in chancery begin, of course, from the filing of 
the bill, and at law from the issuance of process, under the code of 
1857 (for present practice, see § 670, code of 1892) ; but just as, 
under code of 1857, at law, the suit is not begun, though process 
be issued, unless it is intended that it be served as in regular course 
.(Lamkin v. Nye, 43 Miss. 252), so, in equity, the suit will not be 
begun unless the bill is delivered with the purpose that the usual 
steps shall be taken. In the one case, there is no issuance of 
process, and in the other, no filing of the bill, within the meaning 
of the law. Clearly, there was no such filing here. The error of 
counsel for appellant was in supposing that merely having the bill 
marked "filed," and placed in a court wrapper, or docketed, with- 
out more, and with the declared purpose that the process should 
not issue, would constitute filing, because of the rule that in chan- 
cery the suit is begun by the filing of the bill. But the filing 
meant, as we have shown, must be a filing in the legal sense, with 
the purpose that process and all usual steps shall follow in due 
course. Lamkin v. Nye, 43 Miss, 252, explains the principle. It 
it is not necessary to decide whether the provision in our statute 
against withdrawing papers (§ 463, code 1892) means to prohibit 
the taking out of a pleading by counsel for examination, except 



Clauk v. Slayton 133 

on the terms named in the statute, or whether withdrawal means 
permanent withdrawal from the files. 

It is doubtless true, as suggested by learned counsel, that it is 
the custom for attorneys to take out pleadings, giving their re- 
ceipt, and usually no question would arise, as the instances are rare 
in which the priority of a lien is determined by the filing of a par- 
ticular pleading. But we desire to be understood as deciding 
nothing on this precise point, resting our decision in this case on 
its own facts. We cannot hold that what was done with this bill 
constituted a filing of it, under the general rule as to the filing of 
pleadings, nor under the terms of this statute, without deciding 
that the mere marking upon a pleading of the word "filed," etc., 
and a docket entry thereof, and a placing momentarily of the bill 
in a court file, without more, in a cover, where it was at once 
handed back and taken away, and kept away until another bill 
had been filed regularly, with the direction not to issue process 
added, constitute filing; and this, manifestly, is in the face of all 
principle and of all the authorities. We have gone carefully 
through all the questions in the case, but it is unnecessary, in the 
view we have taken, to remark upon them. 



When is Suit Commenced ? 
Clarlc V. Slatjton, 63 N. H. 402. (18S5.) 
A suit in equity is not commenced until the bill is'^led 







Bill in Equity, to recover money verbally promised in support 
of a base-ball club. The defendant in his answer alleges that there 
is no equity in the bill, that the plaintiff has no adequate remedy 
at law, and sets up the statute of limitations. 

In 1877 the plaintifl: was the manager of a base-ball club in 
Manchester. He, the defendant, and three others, verbally agreed 
to pay each one sixth part of the excess of the expenses over the 
receipts of the club. The plaintiff, as manager, advanced the ex- 
penses, and at the end of the season, in the fall of 1877, demanded 
payment of the defendant of his share of the excess over the re- 
ceipts, Avhich the defendant refused to pay. About the first of 
June, 1883, the plaintiff drew the bill and sent it to the clerk, who 



]^34 When is Suit Commenced 

Qotified him that by the rule it could not be iiled and entered until 
the entry fee was paid. February 12, 1884, the necessary fees 
havino- been provided, the bill was filed and an order of notice 
issued, which was served upon the defendant February 28, 188-1. 
The court dismissed the bill, and the plaintiff excepted. 

Cakpentek, J. : 

An action at law is in general regarded as commenced, so as to 
avoid the statute of limitations, when the writ is completed with 
the purpose of making immediate service. But when there is no 
intention to have it served, or it cannot be served until some fur- 
ther act is done, the action is not deemed to be commenced until 
such act is performed. BoUnson v. BuAeigli, 5 N. H. 225 ; Graves 
V. Ticknor, 6 N. H. 537; Hardy v. Corlis, 21 N. H. 356; Mason v. 
Cheney, 47 N. H. 24; Brewster v. Brewster, 52 N. H. 60. The 
same rule is applicable to suits in equity. Leacli v. Noyes, 45 N. H. 
364. A bill in equity must be filed in the clerk's of&ce, and an 
order of notice obtained, before it can be served upon the defend- 
ant. Rules 11, 13. The date of the filing is therefore the earliest 
time which cam be taken as the commencement of the suit. 

The plaintiff's action is barred by the statute of limitations. 
This result makes it unnecessary to consider other questions raised 

by the ease. 

Exceptions overruled. 

Allen, J., did not sit; the others concurred. 



L,^ 




^^nited States v. Am. Lumber Co., 85 Fed. Rep. 827. (1898.) 

Appeal from the Circuit Court of the United States for the 
tkern District of California. 

I yOiLBERT, Circuit Judge: 

jL^ The United States brought a suit in equity against the American 

^ Lumber Company and the Central Trust Company to declare null 

U and void certain patents issued by the United States for lands in 

California, the title to which is vested in the American Lumber 

Company, subject to the lien of a trust deed to the Central Trust 

6^^ Company, securing bonds of the former company to the amount of 

i^> ' «-^ ^i^O 000. The defendants pleaded in bar of the suit that by an 





United States v. Am. Lumber Co. 136 

act of congress approved March 3, 1891 (26 Stat. 1093, § 8), it is 
provided that "suits by the United States to vacate and annul any 
patent heretofore issued shall only 1x3 brought within five years from 
the passage of this act," and that the patents which it was the 
object of the suit to annul and vacate had been issued before the 
enactment of said statute, and that the suit had not been brought 
within five years from the passage of the act. The bill was filed 
on rel)ruary 3, 1890, in the circuit court for the Xorthern district 
of California. It contained the allegation that the defendant the 
American Lumber Company is a corporation organized under the 
laws of the state of Illinois, and that the Central Trust Company 
is a corporation organized under the laws of the state of Xew 
York. On the day on which the bill was filed, two subpcenas bear- 
ing date February 3, 1896, were issued out of the clerk's oflBce, 
upon a prsecipo which reads as follows: 

"To the Clerk of Said Court — Sir: Please issue two originals 
and two copies of subpoena ad respondendum herein, for service 
upon respondents, returnable March 2, 189G; one original and copy 
being necessary for service upon, and for marshal to make return 
of service upon, the res|)ondent American Lumber Co., in Chicago, 
and the other original and copy of subpoena ad respondendum being 
necessary for marshal to serve upon, and to make return of service 
upon, the respondent Central Tnist Co., in Xew York." 

Both of the subpcenas so issued were sent as soon as issued, the 
one to the United States marshal for the Northern district of Illi- 
nois, and the other to the LTnited States marshal for the Southern 
district of Xew York. The marshal for the Northern district of 
Illinois returned the subpoena with the indorsement that the de- 
fendants were not found within his district. A subpoena was again 
issued February 18, 1896, and was sent to said marshal, and was 
thereafter returned with the indorsement that on February 24, 
1896, it had been served upon the secretary of the American Lum- 
ber Company, in that district. Tlie marshal for the Southern 
district of New York served the subpoena on the Central Trust 
Company, in New- York, on February 11, 1896. On March 5, 1896, 
and two days after the expiration of the five-years period of limi- 
tation for the commencement of the suit, an order was entered in 
the suit, reciting that it appeared from the affidavit of Benjamin 
F. Bergen, solicitor for tlie complainant, that the defendants were 
foreign corporations, having no officer or representative or agent. 



136 When is Suit Commenced 

nor any office or place of business, within the state of California, 
and that the defendants could not be found in said state, and had 
not voluntarily appeared in the suit, and requiring them to appear 
on April 6, 1896. A copy of this order was served on the Amer- 
ican Lumber Company March 9, 1896, and on the Central Trust 
Company March 16, 1896. On June 22, 1896, the service of this 
order was quashed upon the motion of the defendants; and on 
June 25, 1896, another order was thereupon entered, containing 
recitals similar to those of the first order, and directing the defend- 
ants to appear on August 3, 1896. It was upon the service of this 
last order that the defendants appeared and filed the pleas of the 
statute of limitations above set forth. Upon the hearing before 
the circuit court, the pleas were sustained, and the bill was dis- 
missed. The case upon appeal to this court presents the single 
question whether or not, upon the record above set forth, the suit 
was begun within five years after March 3, 1891. 

Was the suit begun on or before March 3, 1896 ? It is contended 
by the appellant that by filing the bill in equity and causing process 
to be issued thereon, for both the defendants, in good faith, before 
that date, it took all the steps necessary to bring or commence the 
suit before the expiration of the time limited by the act of congress. 
Just at what point of time a suit in equity may be said to have been 
begun under the practice of the federal courts has not been deter- 
mined by any statute, or by any rule of court, or by any authorita- 
tive decision. A solution of the question must be found by reference 
to the English chancery practice, which has been made the rule of 
procedure in those courts. 

The origin of the English chancery practice is involved in some 
ol)scurity, but from tlie earliest treatises upon the subject it ap- 
pears that the jurisdiction of the court of chancery was invoked 
formerly, as now, by filing a petition or bill setting forth the com- 
plainant's grounds for relief, and praying that a writ of subpoena 
issue. Upon the petition so presented, the chancellor determined 
whether a cause was made for the issuance of the writ. He had 
the power to grant or to withhold the writ. If the writ was 
granted, the suit was begun; otherwise, there was no suit. The 
issuance of the writ was the commencement of the suit. In Harg. 
Law Tracts, 321, 435, may be found treatises on the writ of sub- 
poena, in which the suit in chancery is designated a suit by sulipoena'. 
In course of time the practice was modified so that the signature 



United States v. Am. Lumber Co. 137. 

of counsel for tlie complainant was taken as sufficient authority 
for the issuance of the writ, and it wan no longer necessary for the 
chancellor to pass upon the case made in the petition. It was held 
that the suit was pending from the teste of the subpoena. Pigott 
Vi Noiuer, 3 Swanst. 534. Such, in brief, was the English chan- 
cery practice at the time of its adoption as the rule of procedure 
in the courts of the United States. And while it is true that, in 
cases where the suit was instituted on behalf of the crown, the 
matter of complaint was presented to the court by way of informa- 
tion instead of by petition or bill, it was only in form that the in- 
formation differed from a bill; and it appears that from the filing 
of the information the subsequent procedure was substantially the 
same as iu other suits. Mitf. Ch. PI, 7, 22, 119; Attorney General 
V. Vernon, 1 Vem. 277, 370. The present suit on behalf of the 
United States might, no doubt, have followed the procedure of 
the English courts upon information (1 Barb. Ch. Prac. 34) ; but 
no warrant would be found from that fact for departing from the 
ordinary course of a suit in equity. Our equity rule Xo. 7 follows 
the English statute (4 Anne, c. 16, § 22) in providing that "no 
process of subpoena shall issue from the clerk's office in any suit in 
equity until the bill is filed in the office." Rule 5 provides that 
while all motions for the issuance of mesne process in the clerk's 
office shall be grantable, of course, by the clerk of the court, "the 
same may be suspended or altered or rescinded by any judge of the 
court upon special cause shown." In tiie frame of the bill there 
is still inserted the prayer that the writ of subpcena may issue; 
but, under equity rule 24, signature of counsel is "an affinnation, 
upon his part that, upon the instructions given to liim and the 
case laid before him, there is good ground for the suit in the man- 
ner in which it is framed"; and it takes the place of an examina- 
tion of the bill by the chancellor under the original practice. The 
writ of subpo3na in the English chancery practice ran in the name 
of the king, and was returnable before the chancellor. Our writ 
is issued in the name of tlie president of the United States, and 
is returnable before the court in chancer3\ It has been the inter- 
pretation of the English chancerv practice, as the same has been 
followed and appliwl l>y the American state courts, that a suit is 
begun, within the meaning of the statute of limitations, when the 
subpoena has been issued, provided that its issuanc-e has been fol- 
lowed by a bona fide effort to sen^e the same. 



138 When is Suit Commenced 

In the case of Hayden v. Buchlin, 9 Paige, 512, Chancellor Wal- 
worth thus stated the law: 

"At the present day the filing of a bill, and taking out a subpoena 
thereon, and making a bona fide attempt to serve it without delay, 
may be considered as the commencement of the suit for the purpose 
of preventing the operation of the statute of limitations, if the suit 
is afterwards prosecuted with due and reasonable diligence." 

The language of the opinion so quoted is adopted as an authorita- 
tive formulation of the law in Busw. Lim. § 365, and in Ang. Lim. 
§ 330. 

In Fitch V. Smith, 10 Paige, 9, the chancellor again declared 
the rule: 

"It is true, in common parlance we use the expression 'filing of 
the bill' to denote the commencement of a suit in chancery, instead 
of referring to the issuing and service of subpcena, or the making 
of a bona fide attempt to serve it after the bill has been filed, which 
is the actual commencement of the suit in this court." 

In Pindell v. Maydiv&U, 7 B. Mon. 314, the supreme court of Ken- 
tucky said: 

"In bringing a suit in chancery, the first step taken by the com- 
plainant is to file his petition or bill; and hence writers on this 
subject frequently speak in general terms of this act as the com- 
mencement of the suit. But, so far as it relates to the defendant, 
the suing out process against him is the commencement of the 
suit, preferring the bill being only preparatory to this being done." 

Counsel for appellant rely upon the language of the court so 
quoted, and upon similar expressions of other courts, to sustain 
the doctrine that suing out process is beginning the suit, and con- 
tend that the present suit was begun on February 3, 1896, for the 
reason that process was sued out upon that date. They argue that 
it does not follow from the fact that the defendants were non- 
residents of the state of California, and were corporations created 
under the laws of other states, that they might not have been found 
within the Northern district of California for the purpose of service 
of the writ, and that there is nothing in the bill to indicate that 
the defendants had not agents or officers within the district upon 
whom such service might have ])een had. In short, they contend 
that process was sued out in good faith, and that, therefore, the 
suit was begun. 

This leads us to inquire what is meant by the term "suing out 



United States v. Am. Lumber Co. 139 

process." From the authorities it appears that suing out process 
in equity is the same in meaning as suing out process in an action 
at law. It means that, upon the filing of a bill, a writ of subpana 
is filled out by the clerk, and is delivered for service. Blain v. 
Blain, 15 Vt. 538; Day v. Lamb, 7 Vt. 426; Mason v. Cheney, 
47 X. H. 24; Hardy v. Corlls, 21 N. H. 356; Updike v. Ten 
Broech, 32 N". J. Law, 105; Burdich v. Green, 18 Johns, 14; 
Jackson v. Brooks, 14 Wend. 650; Haughton v. Leary, 3 X. C. 21; 
Webster v. Sharpe (?s\ C), 21 S. E. 912; IlailY. Spencer, 1 R. I. 
17; Gardner v. Webber, 17 Pick. 407; Evatis v Galloway, 20 Ind. 
479; Whitaker v. Turnbull, 18 X. J. Law, 172. In order that the 
writ be deemed to be sued out, it must have left the possession of 
the officer who issued it, and must cither have reached the possession 
of the officer who is to serve it, or the possession of some one who 
is the medium of transmission to such officer. But this is not suffi- 
cient to toll the statute of limitations. The delivery of the writ 
must be followed either by a service of the same or by a bona fide 
effort to serve it. If nothing be done with the writ after its issu- 
ance, if it be returned unserved, or without the bona fide effort to 
serve it, and a new writ be taken out, the date of the commence- 
ment of the suit will be postponed to the date of the second writ. 
Equity rule 7 prescribes that '*the process of subpoena shall consti- 
tute the proper mesne process in all suits in equit}', in the first 
instance, to require the defendant to appear and answer the exi- 
gency of the bill." There can be no doubt, in view of the averments 
of the bill, that if the subpoena in this case had been delivered 
upon its issuance to the marshal for the Northern district of Cali- 
fornia, for service upon the defendants in case they could be found 
in that district, and a bona fide effori; had been made to serve them 
therein, and that effort had been followed by timely proceedings 
to acquire jurisdiction by substituted service, the commencement 
of the suit would relate back to the date when the writ was so 
issued. So, also, it would seem that if, under the bill in this case, 
without the issuance of a subpoena, proceedings had been had ac- 
cording to the act of March 3, 1875, to obtain the special order 
therein provided for, the suit would have been begun at the moment 
wlien the special order was issued and delivered for service. For- 
syth V. Picrson, 9 Fed. 801 ; Batt v. Proctor, 45 Fed. 515. But 
see, contra, Branson v. Keokuk, 2 Dill. 498, Fed. Cas. No. 1,928. 
But, whether w<^ measure the effort to make service in this case 



140 When is Suit Commenced 

by what was actually done or by the intention, the steps that were 
taken come short of the requirement of the rule. The only informa- 
tion we have concerning the intention of complainant or its counsel 
in suing out the writ is afforded — First, by the prsecipe, and, sec- 
ond, by what was done with the writ. From the praecipe it appears 
that the intention was to send the subpoenas forthwith without the 
state for service. From the writs themselves it appears that they 
never came into the hands of the officer who was authorized to 
serve them, the marshal of the Northern district of California, but 
that they were sent to persons who were without authority to serve 
the same, and were by them subsequently returned to tlie clerk's 
office. It is needless to say that the process of the court could not 
run beyond the court's territorial jurisdiction. In deciding whether 
there was an effort to serve the subpcenas in good faith, we must be 
guided by a consideration of what the law required in order to effect 
a valid service. It does not aid the bona fides of the attempt to 
serve that the appellant's counsel thought that the subpoenas could 
be legally served by the persons to whom they were sent. It is 
immaterial what may have been his belief or his opinion in that 
regard. The bona fides must be shown by proof that an effort was 
made to proceed according to law, and that use was made, or at- 
tempted to be made, of the means which the law prescribes. After 
the writs were issued in this case, not a step was taken in the line of 
lawful procedure. Sending the writs without the district in which 
only they could be served, and to persons who were without power 
to serve them, were vain and futile acts. The delivery of copies of 
the subpoenas to the defendants at their offices in Illinois and New 
York, while it was sufficient to give them actual notice that a bill 
had been filed against them, was neither a service nor an attempted 
service upon them, and was of no greater effect than any other 
notice which they might have received of the same fact. In short, 
it may be said that up to the 5th day of March, 1896, nothing had 
])cen done to begin the suit except to file the bill, and to cause sub- 
pcenas to issue, which subpoenas were subsequently returned to the 
clerk's office. 

It is argued that the court should construe liberally, in favor of 
the United States, a self-imposed statute of limitations, and the 
case of U. 8. v. American Bell Td. Co., 159 U. S. 548, 16 Sup. Ct. 
69, is cited. The doctrine of that case, and of the precedents on 
which it is sustained, is confined in its application to cases in which 



Crowell v. Botsfoed 141 

uncertainty exists as to the intention of the legislature to' impose 
the limitation In the present case no doubt is suggested by the 
language of the statute, and there is no room for construction. It 
is clear that congress has said that all suits by the United States 
to vacate patents shall l)e l)rought within the period limited by the 
act. The only question we are called uix)n to decide is whether 
this suit has been within that period. In determining at what 
point in the proceedings a suit shall be dcHjmed to be commenced, 
we have no warrant for holding that the rule applicable id a suit 
on behalf of the United States shall differ from that applicable 
to other cases. When the United States, through its congress, has 
said that suits in its favor shall be brought only within a stated 
period, we have no criterion for determining whether a given suit a 
was commenced within that period, except to apply the rules and ^'j^ 
principles applicable to all suitors. The decree of the circi^^^ourt 
will be atlirmed. 







Process. ^Y ^f fyi^^y 

Crowell V. Botsford, 16 N.J. Eq. 1^58^ (186^) ^^^^ J- 

The bill in this cause was filed to foreclose a chattel mortgage.- 
The subpoena was issued before the filing of the bill, but no notice 
was taken of the irregularity, and the cause was allowed to proceed" 
to final decree and execution. The defendant now asks to set 
aside all the proceedings in the cause, on the ground that the sub-iV 
poena was issued and served before the bill was filed. ^ • ji 

The Chancellor: ih)^"^^^\, '^^ \<\ 

The defendant asks to set aside the execution, final decree, ancr"^ v ^ 

all the proceedings in the cause, on the ground that the subpoenfKj/\ n^ 
was issued and served licfore the bill was filed. k/^S 

The statute provides that no subpoena or other process for appear4^^ ^f^ . 
ance, shall issue out of the Court of Chancery, except in cases toM^ ^ 
stay waste, until after the bill shall have been filed with the clerk ^fi^ • 
I of the court. Nix. Dig. 97, § 6. ^ k ^^ 

' Tlie proceeding on the part of the complainant was clearly ir-'A^ i^ 
regular, and had the irregularity l)een promptly brouglit to the V" ^\ 
notice of the court, the subpojna, on motion for that purpose, would u^ 




, ^ 



1 ^'^ ^ 



142 Process 

have been set aside as illegally issued. The effect would have been 
to compel the complainant to pay the costs of the motion and to 
sue out a new subpoena. 

But no such motion was made. The complainant was permitted, 
without objection, to proceed to final decree and to sue out exe- 
cution. 

Where a party seeks to set aside the proceedings of his adversary 
for an irregularity which is merely technical, he must make his 
application for that purpose at the first opportunity. If a solicitor, 
after notice of an irregularity, takes any step in the cause, or lies 
by and sufi^ers his adversary to proceed therein under a belief that 
his proceedings are regular, the court will not interfere to correct 
the irregularity, if it is merely technical. Hart v. Small, 4 Paige 
288; Parher v. Williams, Ibid. 439. 

It is now insisted that the irregularity is not technical ; that the 
statute is not directory merely, but imperative; and that no valid 
decree can be made, except there be a strict compliance with its 
requirements. 

The provision of the statute is a regulation of the practice of 
the court, directing the mode in which its proceedings shall be con- 
ducted. The time or form in which the thing is directed to be 
done is not essential. The proceedings in such cases are held valid, 
though the command of the statute is disregarded or disobeyed. 
Sedgwick on Statutes, 368. 

That this is the effect and operation of the statutes is apparent, 
not only from the nature and design of the enactment, but from a 
reference to its origin and the history of the practice under it. 

The commencement of a suit in chancery was originally by bill, 
before the issuing of a subpoena. The bill contained, as it still does, 
a prayer for subpcena, which issued as soon as the bill was filed. 
Gilbert's For. Eom. 64; 3 Bl. Com. 442-3. 

Yet in a very early treatise upon the proceedings of the Court 
of Chancery, it is stated that "notwithstanding the practice before 
this time hath been that no subpcena should be sued forth of the 
Court of Chancery, without a bill first exhibited; yet of late, for 
the ease of all suitors and subjects, it hath been thought good that 
every man may have a subpoena out of the same court, without a 
bill first exhibited." Tothill's Proceed. 1. 

And by Lord Clarendon's orders in chancery, in 1661, it is 
directed, "that all plaintiffs may have lil)eTty to take forth suh- 



CiiOWi-LL v. BOTSFORD 143 

pcenas ad respondendum before the filing of their bills, if they 
please, notwithstanding any late order or usage to the contrary.*' 
Beames' Orders in Chan. 1C8. 

This order continued in force until 1705, when it was enacted 
(by statute of Ann, ch. 16, § 22), that no "subpoena or any other 
process for appearance, do issue out of any court of equity, till 
after the bill is filed, except in cases of bills for injunctions to stay 
waste, or stay suits at law commenced." The statute is equally 
peremptory in its terms with our own, yet it has always been re- 
garded as directory only, and a departure from its requirements 
a mere irregularity, which subjected the party to costs. 

In Hinde's Ch. Pr. 76, it is said that, notwithstanding the 
statute, "solicitors, through ignorance and inattention, frequently 
sue out and serve this writ before the bill be filed, taking care to 
file the bill on the return day, yet that practice is altogether irregu- 
lar (except in cases in the statute excepted), and the complainant 
does it at the risk of costs.'' 

The elementary books all treat the issuing of the subpoena l^efore 
the filing of the bill, since the passage of the statute, as an irregu- 
larity, which exposes the complainant to the hazards of costs. 
1 Xewland's Pr. 62; 2 Maddock's Ch. Pr. 197; 1 Smith's Ch. Pr. 
110; 1 Daniell's Ch. Pr. 592. 

The same rule prevailed under the ancient practice of the court, 
prior to the adoption of Lord Clarendon's order, authorizing the 
subpoena to be issued before the filing of the bill. 

Cases are very frequent, during the reign of EKzabeth, where 
costs are adjudged to the defendant, for want of a bill after the 
service of a subpana. Cary's E. 98, 103, 105, 114, 118, 143, 145, 
153, 156. 

Although the defendant was entitled to costs, yet by "preferring 
costs" he was not relieved from appearing when the bill was filed, 
and so little was gained by the proceeding, that the practice has 
become obsolete. It is considered most advantageous for the de- 
fendant, when he has been improperly served with a subpoena before 
filing the bill, to wait till the attachment has been issued against 
him, and then to move to set the process aside for irregularity. 
The effect of such a proceeding is to oblige the plaintiff to sue out 
and serve a fresh subpoena. 1 Daniell's Ch. Pr. 593. 

This, in its operation, is in accordance with the practice in this 
court, although no resort is had with us to the writ of attachment. 



144 Process 

The issue of the subpoena before bill filed, is an irregularity so 
purely technical, that it is waived by an appearance. 1 Daniell's 
Ch. Pr. 593. 

There is another objection which is equally decisive against the 
motion. It appears, by the evidence, that the subpoena was issued 
before the filing of the bill, in consequence of a written offer by the 
defendant's solicitor to enter an appearance for the defendant. An. 
acknowledgment of the legal service of the subpoena was endorsed 
upon the writ. At the time of the endorsement, the defendant's 
solicitor knew that the bill had not been filed. The complainant's 
solicitor was justified in regarding the acts of the defendant's 
solicitor, as an appearance for the defendant, and as a waiver of 
the irregularity in the issue of the writ. Nix. Dig. 98, § 20. 

There is no evidence of surprise or merits. The application, 
rests solely on the ground of illegality of the proceedings on the 
part of the complainants. 

The motion must be denied, and the rule to show cause dis- 
charged, with costs. 

/^ 

{r,i fPhcen^ Ins. Co. v. Wulf, 9 Bissl. (U. S.) 2S5. (1880.) 

^J^J dfiESHAM, J. : 

(/ fty^^^he defendant. Bertha Wulf, owned certain real estate in In- 
\ /v ^'^dianapolis, which she conveyed, her husband joining, to a third 
/^ person, who conveyed it back to her husband, Henry Wulf. The 

r y husband, the wife joining, then mortgaged the same property to 
rr the Phoenix Mutual Life Insurance Company to secure a loan. 
The mortgage showed upon its face that it was to secure a loan 
to the husband. The loan was not paid at maturity, and afterward 
J^\Q mortgage was foreclosed in this court. Bertha Wulf subse- 
y qucntly brought suit in this court to set aside her deed to the third 
^^ party, his deed to her husband, and the mortgage of herself and 
"^ husband to the insurance company, on the sole ground that she 

was a minor when she executed those instruments. The service in 
the foreclosure suit was after Bertha Wulf had attained her ma- 
jority, and the decree against her was by default. 

The marshal's return shows that the subpoena in the foreclosure 
suit was properly served on Henry Wulf, in compliance with equity 





A 



->^ 



Phoenix Ins. Co. v. Wulf 145 

rule 13. As to the wife, the return read thus: "I served Bertha 
Wulf by leaving a copy for her vrith her husband." Sometime 
after the wife commenced her suit, as already stated, the marsh.il 
appeared and asked leave to amend his return, so as to show that 
he had sensed the subpoena on her by leaving a copy for her with 
her husband, at her dwelling house or usual place of abode. 

The defendant Henry Wulf, occupied a building at the comer 
of Virginia avenue and Cobum street, in Indianapolis, both as a 
dwelling and a family grocery. In the lower story there were two 
rooms, the main one being occupied as a grocery and the back 
smaller one for storage purposes. These two rooms were separated 
by a hall wliich was entered by a door from Cobum street, and 
also from Virginia avenue through the grocery. A stairway led 
from the hall to the second story, where the family dwelt, eating 
and sleeping. The hall and stairway were accessible in both ways, 
and were, in fact, approached in both ways. The deputy marshal 
found the husband in the grocery and there served the subpoena 
on him and then inquired for his wife, and was informed that it 
was early in the morning and she was upstairs in bed where the 
family lived. The officer then, in the grocery, handed to the 
husband a copy of the subpoena for his wife. 

Upon these facts was there a valid service on the wife under the 
13th equity mle, which declares that the service of all subpoenas 
shall be by delivery of a copy thereof, by the officer serving the 
same, to the defendant personally, or by leaving a copy thereof at 
the dwelling house or usual place of abode of each defendant with 
some adult person who is a member or resident in the family? 

It is urged by counsel that the officer handed to the husband a 
copy of the subpoena when he was not at the "dwelling house or 
usual place of alx)de"— that the grocery room was as distinct from 
the residence in the upper story, as if the two had been in separate 
buildings wide apart. That construction of the rule is narrow and^ 
unreasonable. It is conceded that if the officer had handed the copy 
to the husband in the hall the service would have been good, be- 
cause the upper story was approached only through the hall, and 
it was therefore connected with the dwelling. There were but two 
ways of ingress to the residence or upper story — one from Virginia 
avenue, through the grocery, and the other through the door open- 
ing from Cobum street. The family passed in and out both ways, 
as best suited their convenience. A copy was left with one who 

10 



146 Process 

understood its contents and was likely to deliver it to the person 
for whom it was intended. 

The ease of Kihhe v. Benson, 17 Wallace, 625, is cited against 
the sufficiency of the service. That was an action of ejectment in 
the Circuit Court of the United States for the JSTorthem District 
of Illinois, which had adopted the statute of that state relating 
to actions of ejectment. After judgment was entered for the 
plaintiff by default, the defendant filed a bill in equity to set aside 
the judgment on the ground that he had no notice or knowledge 
of the pendency of the suit, and for fraud. The Illinois statute 
required that in actions of ejectment, when the premises were 
actually occupied, the declaration should be served by delivering 
a copy to the defendant named therein, who should be in the occu- 
pancy of the premises, or, if absent, by leaving the same with a 
white person of the family of the age of ten years or upwards "at 
the dwelling house of such defendant." 

On the trial of the equity suit one Turner swore that when he 
called at Benson's house to serve upon him the declaration, he was 
informed by Benson's father that Benson was not at home, and 
that while the father was standing near the southeast corner of 
the yard, adjoining the dwelling house and inside the yard, and 
not over 125 feet from the dwelling house, he handed him a copy 
of the declaration, explaining its nature, and requesting him to 
hand it to his son, after which the father threw the copy upon the 
ground muttering some angry words. 

There was a conflict in the testimony, but the Circuit Court 
decided that even if the copy was handed to the father, as testified 
to by Turner, the service was not sufficient, and set aside the judg- 
ment which had been entered by default, and the decree was 
affirmed on appeal. In deciding the case the Supreme Court say 
"it is not unreasonable to require that it (copy of the declaration) 
should be delivered on the steps or on a portico, or in some out 
house adjoining to or immediately connected with the family man- 
sion, where, if dropped or left, it would be likely to reach its 
destination. A distance of 125 feet and in a corner of the yard 
is not a compliance with the requirements." 

Eule 13 should receive a liberal construction. It does not require 
the copy of the subpoena to be left with a person in the dwelling 
house ; it is sufficient if the person who receives the copy is at the 



Thomson v. Woosteb 147 

dwelling house. The rule is satisfied by a service outside the dwell- 
ing house at the door, just as v/ell as inside the house. 

I think Bertha Wulf was in court when the decree of fore- 
closure was entered. This is not a motion to correct the pleadings, 
judgment or process. 

Courts have the power to pennit officers to amend their returns 
to both mesne and final process, and the power is exercised li])crally 
in the interest of justice, especially when the rights of third parties 
are not to be afi!ected by the amendment. 

In the exercise of a sound discretion they have allowed officers 
to amend their returns according to the real facts after the lapse 
of several years, and when there is no doubt ahout the facts such 
amendments have been allowed after the officer's term has ex- 
pired.* 

I think justic^ Tequires that the amendment should be allowed 
in this case. . > -' 




7 r 

s^ ^Default and Decree Pro Confesso. "yr .SJ ^ 

.<■ \^homson v. Wooster, lU U. S. lOJt. (188JfJi .)} J^ A ^ 

Tlie appellee in this case, who was complainant below, filed his ll^i/t 
bill against the appellants, complaining that they infringed certainxA' ^^\ f 
letters patent for an improved folding guide for sewing machines, ^ U 
granted to one Alexander Douglass, of which the complainant was Jr ^'^ 
the assignee. The patent was dated October 5, 1858, was extended ^ y ^ 
for seven years in 1872, and was reissued in December, 1872. The rT" v (/^ 
suit was brought on the reissued patent, a copy of which was V/^^ 
annexed to the bill, which contained allegations that the invention .Jj^ ^ 
patented had gone into extensive use, not only on the part of the r f y 
complainant, but by his licensees; and that many suits had been L^ J/^ 
brought and sustained against infringers. The bill further alleged r ^ 
that the defendants, from the time when the patent was reissued^^^^i-^ 
down to the commencement of the suit, wrongfully and withoutC l^^ i 
license, made, sold and used, or caused to be made, sold and u?cd,U- 
one or more folding guides, each and all containing the said im- 

* Adams v. Rohiiison. i Pickering, 461; Johnson v. Dav. 17 Pickering, l/^^ ^ 
106: People V. Ames. 35 xN'ew York, 482: Jackson v. O. '& M. R. R.. 15 ^^ 
Indiana. 102; DeArmon v. Adams. 25 Indiana, 455. Freeman on Execu*^ » ^J^^ 
tions, §§358 and 359; Herman on Executions, §248. C^' " i/ 




148 Default and Decree Pko Confesso 

provement secured to the complainant by the said reissued letters 
patent, and that the defendants derived great gain and profits 
from such use, but to what amount the complainant was ignorant, 
and prayed aj disclosure thereof, and an account of profits, and 
damages, and a perpetual injunction. 

The bill of complaint was accompanied with affidavits verifying 
the principal facts and certain decrees or judgments obtained on 
the patent against other parties, and Douglass's original applica- 
tion for the patent, made in April, 1856, a copy of which was an- 
nexed to the affidavits. These affidavits and documents were 
exhibited for the purpose of obtaining a preliminary injunction, 
which was granted on notice. 

The defendants appeared to the suit by their solicitor, May 3, 
1879, but neglected to file any answer, or to make any defence to 
the bill, and a rule that the bill be taken pro confesso was entered 
in regular course June 10, 1879. Thereupon, on the 2d of August, 
1879, after due notice and hearing, the court made a decree to the 
following effect, viz. : 1st. That the letters-patent sued on were 
good and valid in law. 2d. That Douglass was the first and 
original inventor of the invention described and claimed therein. 
3d. That the defendants had infringed the same hy making, usipg 
and vending to others to be used, without right or license, certain 
folding guides substantially as described in said letters patent. 
4th. That the complainant recover of the defendants the profits 
which they had derived by reason of such infringement by any 
manufacture, use or sale, and any and all damages which the com- 
plainant had sustained thereby; and it was referred to a master 
to take and state an account of said profits, and to assess said 
damages, with directions to the defendants to produce their books 
and papers and submit to an oral examination if required. It was 
also decreed that a perpetual injunction issue to restrain the de- 
fendants from making, using, or vending any folding guides made 
as theretofore used by them, containing any of the inventions 
described and claimed in the patent, and from infringing the 
patent in any way. 

Under this decree the parties went before the master, and the 
examination was commenced in October, 1879, in the presence of 
counsel for both parties, and was continued from time to time 
until lsroveml)cr 3, 1880, when arguments were beard upon the 
matter, and the case was submitted. On November 12th the report 



Thomson v. Wooster 149 

was prepared and submitted to the inspection of counsel. On the 
18th motion was made by the defendants' counsel, before the mas- 
ter, to open the proofs and for leave to introduce newly discovered 
evidence. This motion was supported by affidavits, but was over- 
ruled l)y the master, and his report was filed December 10, 1880, in 
which it was found and stated that the defendants had used at 
various times, from January 18, 1877, to the commencement of 
the suit, twenty-seven folding guides infringing the complainant's 
patent, and had folded 1,217,870 yards of goods by their use, and 
that during that period there was no means known or used, or 
open to the public to use, for folding such goods in the same, 
or substantially the same manner, other than folding them by 
hand, and that the saving in cost to the defendants by using the 
folding guides was three cents on each piece of six yards, making 
the amount of profit which the complainant was entitled to re- 
cover, $6,089.35 ; and that during the same period the complainant 
depended upon license fees for his compensation for the use of 
the patented device, and that the amount of such fees constituted 
his loss or damage for the unauthorized use of his invention : and 
that, according to the established fees, the defendants would have 
been liable to pay for the use of the folding guides used by them 
during the years 1877, 1878 and 1879 (the period covered by the 
infringement), the sum of $1,350, which was the amount of the 
complainant's damages. The evidence taken by the master was 
filed with his report. 

By a supplemental report, filed at the same time, the master 
stated the fact of the application made to him to open the proofs 
on the ground of surprise and newly discovered evidence (as 
before stated), and that after hearing said application upon the 
affidavits presented (which were appended to the report), he was 
unable to discover any just ground therefor. 

Tlio defendants did not object to this supplemental report, but 
on the 10th of January, 18S1, they filed exceptions to the principal 
report, substantially as follows: 

1. That instead of the double guide or folder claimed in the 
complainant's patent being the only means for folding cloth or 
strips on ea^ edge during the period of the infringement (other 
than that of folding by hand), the master should have found 
that such strips could have been folded by means of a single guide 
or folder, and that the use of such guldens was known and open to 



150 Default and Decree Pro Confesso 

the public long before 1877, and that such guides were not em- 
braced in the complainant's patent. 

2. That the amount of profits found by the master was 
erroneous, because it appeared that folded strips such as those 
used by the defendants were an article of merchandise, cut and 
folded by different parties at a charge of 25 cents for 144 yards. 

3. That the profits should not have been found greater than 
the saving made by the use of the double guide as compared with 
the use of a single guide, or greater than the amount for which 
the strips could have been cut and folded by persons doing such 
business. 

4. That the damages found were erroneous. 

Other exceptions were subsequently filed, but were overruled 
for being filed out of time. 

Before the argument of the exceptions the defendants gave 
notice of a motion to the court to refer the cause back to the 
master to take further testimony in reference to the question of 
profits and damages chargeable against them under the order of 
reference. In support of this motion further affidavits were pre- 
sented. 

The exceptions to the report and the application to refer the 
cause back to the master were argued together. The court denied 
the motion to refer the cause back, overrviled the exceptions to 
the report, and made a decree in favor of the complainant for the 
profits, but disallowed the damages. That decree the respondents 
brought here by appeal. 

They assigned fourteen reasons for appeal, of which the first 
nine related to the proceedings before the master and his report, 
and the last five to the validity of the reissued patents. 

Mr. Justice Bradley delivered the opinion of the court. After 
stating the facts in the foregoing language, he continued: 

The appellants have assigned fourteen reasons or grounds for 
reversing the decree. The first nine relate to the taking of the 
account before the master and liis report thereon ; the last five 
relate to the validity of the letters patent on which the suit was 
brought. It will be convenient to consider the last reasons first. 

The bill, as we have seen, was taken pro confesso, and a decree 
pro confesso was regularly entered up, declaring that the letters 
patent were valid, that Douglass was the original inventor of the 
invention therein described and claimed, that the defendants were 



Thomson v. Wooster 151 

infringing the patent, and that they must account to the com- 
plainant for the profits made by them by such infringement and 
for the damages he had sustained thereby; and it was referred 
to a master to take and state an account of such profits and to 
ascertain said damages. 

The defendants are concluded by that decree, so far at least 
as it is supported by the allegations of the bill, taking the same 
to bo true. Being carefully based on these allegations, and not 
extending beyond them, it cannot now be questioned by the 
defendants unless it is shown to be erroneous by other statements 
contained in the bill itself. A confession of facts properly pleaded 
dispenses with proof of those facts, and is as effective for the 
purposes of the suit as if the facts were proved; and a decree 
pro confcsso regards the statements of the bill as confessed. 

By the early practice of the civil law, failure to appear at the 
day to which the cause was adjourned was deemed a confession 
of the action; but in later times this rule was changed, so that 
the plaintiif, notwithstanding the contumacy of the defendant, 
only obtained judgment in accordance with the truth of the case 
as established by an ex parte examination. Keller, Proced. Eom. 
§ 69. The original practice of the English Court of Chancery 
was in accordance with the later Eoman law. IlawTcins v. Crook, 
2 P. Wms. 556. But for at least two centuries past bills have been 
taken pro confcsso for contumacy. Ibid. Chief Baron Gilbert 
says : "Where a man appears by his clerk in court, and after lies 
in prison, and is brought up three times to court by habeas corpus, 
and has the bill read to him, and refuses to answer, such public 
refusal in court does amount to the confession of the whole bill. 
Secondly, when a person appears and departs without answering, 
and the whole process of the court has been awarded against him 
after his appearance and departure, to the sequestration; there 
also the bill is taken pro confcsso, because it is presumed to be 
true when he has appeared and departs in despite of the court and 
withstands all its process without answering." Forum Eomanum, 
36. T^rd Hardwicke likened a decree pro confesso to a judgment 
by nil dicit at common law, and to judgment for plaintiff on 
demurrer to the defendant's plea. Davis v. Davis, 2 Atk. 21. It 
was said in IlatvJcins v. CrooTc, qua supra, and quoted in 2 Eq. Ca. 
Ab. 170, that "The method in equity of taking a bill pro confess^ 
is consonant to the rule and practice of the courts at law, where. 



152 Default and Decree Pro Confesso 

if the defendant makes default by nil dicit, judgment is imme- 
diately given in debt, or in all cases where the thing demanded 
is certain; but where the matter sued for consists in damages, a 
judgment interlocutory is given; after which a writ of inquiry 
goes to ascertain the damages, and then the judgment follows." 
The strict analog}' of this proceeding in actions of law to a general 
decree pro confesso in equity in favor of the complainant, with a 
reference to a master to take a necessary account, or to assess 
unliquidated damages, is obvious and striking. 

A carefully prepared history of the practice and effect of taking 
bills pro confesso is given in WMliams v. Corwin, Hopkins Ch. 
471, by Hoffman, master, in a report made to Chancellor Sanford, 
of New York, in which the conclusion come to (and adopted by 
the Chancellor), as to the effect of taking a bill pro confesso, was 
that "when the allegations of a bill are distinct and positive, and 
the bill is taken as confessed, such allegations are taken as true 
without proofs," and a decree will be made accordingly; but 
"where the allegations of a bill are indefinite, or the demand of the 
complainant is in its nature uncertain, the certainty requisite to a 
proper decree must be afforded by proofs. Tlie bill, when con- 
fessed by the default of the defendant, is taken to be true in all 
matters alleged with sufficient certainty; but in respect to mat- 
ters not alleged with due certainty, or subjects which from their 
nature and the course of the court require an examination of 
details, the obligation to furnish proofs rests on the complainant." 

We may properly say, therefore, that to take a bill pro confesso 
is to order it to stand as if its statements were confessed to be 
true; and that a decree pro confesso is a decree based on such 
statements, assumed to be true, 1 Smith's Ch. Pract. 153, and 
such a decree is as binding and conclusive as any decree rendered 
in the most solemn manner. "It cannot be impeached collaterally, 
but only upon a bill of review, or [a bill] to set it aside for fraud. 
1 Daniell Ch. Pr. 696, 1st Ed. ;* Ogilvie v. Heme, 13 Ves. 563. 

*Note by the Court. — Reference is made to the ist Edition of Daniell 
(pub. 1837) as being, with the 2d Edition of Smith's Practice (published 
the same year), the most authoritative work on English Chancery Prac- 
tice in use in March, 1842, when our Equity Rules were adopted. Sup- 
plemented by the General Orders made by Lords Cottenham and Lang- 
dale in August, 1841 (many of which were closely copied in our own 
Rules), they exhibit that "present practice of the High Court of Chancery 
in England," which by our 90th Rule was adopted as the standard of equity 
practice in' cases where the Rules prescribed by this court, or by the 



Thomson v. Woosteb 153 

Such being the general nature and effect of an order taking 
a bill pro confesso, and of a decree pro confesso regularly made 
thereon, we are prepared to understand the fuU force of our rules 
of practice on the subject. Those rules, of course, are to govern 
so far as they apply; but the effect and meaning of the terms 
which they employ are necessarily to be sought in the books of 
authority to which we have referred. 

By our rules a decree jjto confesso may be had if the defendant, 
on being served with process, fails to appear within the time re- 
quired; or if, having appeared, he fails to plead, demur or answer 
to the bill within the time limited for that purpose; or, if he fails 
to answer after a former plea, demurrer or answer is overruled or 
declared insufficient. The 12th Rule in Equity prescribes the time 
when the subpoena shall be made returnable, and directs that "at 
the bottom of the subpo3na shall be placed a memorandum, that 
the defendant is to enter his appearance in the suit in the clerk's 
office on or before the day at which the writ is returnable; other- 
wise the bill may be taken pro confesso." The 18th Rule requires 
the defendant to file his plea, demurrer or answer (unless he gets 
an enlargement of the time) on the rule day next succeeding that 
of entering his appearance; and in default thereof the plaintiff 
may at his election, enter an order (as of course) in the order 
book, that the bill be taken pro confesso, and thereupon the cause 
shall be proceeded in ex parte, and the matter of the bill may Ije 
decreed by the court at any time after the expiration of thirty 
days from the entry of said order, if the same can be done without 
an answer, and is proper to be decreed; or the plaintiff, if he, 
requires any discovery or answer to enable him to obtain a proper 
decree, shall be entitled to process of attachment against the de- 
fendant to compel an answer, etc. And the 19th Rule declares that 
the decree rendered upon a bill taken pro confesso shall be deemed 
absolute, unless the court shall at the same term set aside the 

Circuit Court, do not apply. The 2d Edition of ^Ir. Daniell's work, pub- 
lished by Mr. Hcadlam in 1846. was much modified by the extensive 
changes mtroduced by the English Orders of May 8, 184^; and the 3d 
Edition, by the still more radical changes introduced by "the Orders of 
April, 1850, the Statute of 15 & 16 Vict. c. 86, and the General Orders after- 
wards made under the authority of that statute. Of course the subse- 
quent editions of Daniell are still further removed from the standard 
adopted by this court in 1842: but as they contain a view of the later 
decisions hearing upon so much of the old system as remains, they have 
on that account, a value of their own, provided one is not misled'bv the 
new portions. 



154 Default and Decree Pro Confesso 

same, or enlarge the time for filing the answer, upon cause shown 
upon motion and affidavit of the defendant. 

It is thus seen that by our practice, a decree pro confesso is 
not a decree as of course according to the prayer of the bill, nor 
merely such as the complainant chooses to take it ; but that it is 
made (or should be made) by the court, according to what is 
proper to be decreed upon the statements of the bill, assumed to 
be true. This gives it the greater solemnity, and accords with, 
the English practice, as well as that of New York. Chancellor 
Kent, quoting Lord Eldon, says: "Where the bill is thus taken 
pro confesso J and the cause is set down for hearing, the course (says 
Lord Eldon, in Geary v. Sheridan, 8 Ves. 192), is for the court 
to hear the pleadings, and itself to pronounce the decree, and not 
to permit the plaintiff to take, at his own discretion, such a decree 
as he could abide by, as in the case of default by the defendant at 
the hearing." Rose v. Woodruff, 4 Johns. Ch. 547, 548. Our 
rules do not require the cause to be set down for hearing at a 
regular term, but, after the entry of the order to take the bill 
pro confesso, the 18th rule declares that thereupon the cause shall 
be proceeded in ex parte, and the matter of the hill may he decreed 
hy the court at any time after the expiration of thirty days from the 
entry of such order, if it can be done without answer, and is proper 
to he decreed. This language shows that the matter of the bill 
ought at least to be opened and explained to the court when 
the decree is applied for, so that the court may see that the decree 
is a proper one. The binding character of the decree, as declared 
in Eule 19, renders it proper that this degree of precaution should 
be taken. 

We have been more particular in examining this subject be- 
cause of the attempt made by the defendants, on this appeal, to 
overthrow the decree by matters outside of the bill, which was 
regularly taken pro confesso. From the authorities cited, and the 
express language of our own Rules in Equity, it seems clear that 
the defendants, after the entry of the decree pro confesso, and 
whilst it stood unrevoked, were absolutely barred and precluded 
from alleging anything in derogation of, or in opposition to, the 
said decree, and that they are equally barred and precluded from 
questioning its correctness here on appeal, unless on the face of the 
bill it appears manifest that it was erroneous and improperly 
granted. 




.</' 



\ 



si 



CHAPTER V. 
PROCEEDINGS ON BEHALF OF DEFENDANT. 
Appearance. %^0^ 

Flint V. Comly, 95 Me. 251. (1901.) 

Exceptions by defendants. Overruled. \ ^ 

Bill in equity by Lucy M. Flint of Cornish, in the county of 
York, administratrix of the goods and estate of Fred T. Flint, late 
of said Cornish, deceased, against Eobert Comly of Philadelphia, 
and William Flanigen of Woodbury, New Jersey, co-partners in 
business under the firm name and style of Comly and Flanigen, and 
against Charles E. Perkins of Portland. The bill asserts a lien or 
interest in certain mortgages and pledges of real estate and per- 
sonal property held by the non-resident defendants, and against the 
estate of the said Fred T. Flint. 

After several hearings the plaintiff moved to convert the cause 
into an action at law. This motion having been granted the 
defendants excepted. 

Sitting: Wiswcll, C. J., Emery, Whitehouse, Strout, Fogler, JJ. 

WiSWELL, C. J. : 

The plaintiff commenced a bill in equity against three defend- 
ants, one a resident of the state, the other two non-residents, which 
was duly entered and filed in the office of the clerk of this court 
for Cumberland county, on July 7, 1899. Thereupon a subpoena 
issued against the resident defendant, who subsequently entered 
his appearance, and an order issued as to the non-resident de- 
fendants to appear and answer within one month from the first 
Tuesday of August, 1899. There was no service of this order in 
this state, but upon November 8, 1899, counsel for the non-resident 
defendants entered upon the docket a general and unconditional 
appearance in the manner provided by Chancery Rule YIII, and 
on Janua-ry 23, 1900, the joint answer of these non-resident de- 
fendants was filed, signed in their names by their solicitors. 

Prior to this, on July 7, 1899, a preliminar}- injunction had 

155 



156 Appearance 

been issued against the resident defendant, without a hearing, but 
upon the filing of the statutory bond. Later, he filed a motion to 
dissolve this injunction, upon which motion a hearing was had, but 
before a decision had been rendered, on January 24, 1900, the 
plaintiff moved to discontinue as to the resident defendant and 
three days later this motion was granted with costs for him. On 
January 24, 1900, the plaintiff also filed this motion: "Now 
comes the plaintiff in the above entitled cause and shows unto your 
Honors that the matter in controversy may be adequately and com- 
pletely determined in a suit at law, and that the issues presented 
may be more conveniently described according to the course of the 
common law, than in equity. Wherefore, she prays leave of the 
court to convert her said action into an action at law upon such 
reasonable terms as the court may be pleased to order, etc." The 
docket shows this entry under date of January 27, 1900 : "Motion 
to convert cause into an action at law granted." 

To this order the defendants took exception and, without any 
thing further being done in the case, entered the same at the next 
law court. It might be questioned as to whether this bill of 
exceptions was not prematurely brought forward, as the exception 
was to an interlocutory order and perhaps should not have been 
entered until the completion of the case, when it might have 
become unnecessary to prosecute the exceptions. K. S., c. 77, §§ 
22 and 25; Maine Benefit Association v. Hamilton, 80 Maine, 99. 
But, as the procedure under the Act of 1893 is somewhat anoma- 
lous, and as there has already been considerable delay in the case, 
we think it more in the interests of justice that the question 
involved should now be determined, which course is not without 
precedent in this state, even if it were clear that the exceptions 
were prematurely brought forward. Stevens v. Shaw, 77 Maine, 
566. 

It is argued that this court had no jurisdiction over the non-resi- 
dent defendants, that no service of the bill was ever made upon 
them in Maine, and no fact set up in the bill which would subject 
them to the jurisdiction of this court, except the alleged fact that 
their co-defendant had in his possession certain property or evi- 
dences of indebtedness belonging to the non-resident defendants 
not open to attachment ; that when the bill was discontinued as to 
the resident defendant, the court then had no jurisdiction whatever 
over these defendants ; and that this discontinuance as to the other 



Flint v. Comly 157 

defendant, by leave of court and upon the plaintiff's motion, was 
equivalent to an admission by the plaintiff and a decision by the 
court that the court had no further jurisdiction over these defend- 
ants. 

The answer to all this is, that the defendants by their duly 
authorized counsel entered a general and unconditional appearance, 
thereby voluntarily submitting themselves to the jurisdiction of the 
court, although independently of this voluntary action upon their 
part the court may have had no jurisdiction over them. It is said 
in Daniell's Chancery Pleading and Practice, p. 536: "Appear- 
ance is the process by which a person, against whom a suit has 
been commenced, submits himself to the jurisdiction of the court." 

And in the Encyl. of Pleading and Practice, Vol. 2, page 639, 
"It is a universal rule, which admits of no exception, that, if the 
court has jurisdiction of the subject matter, a general appearance 
gives jurisdiction over the person. The principle that a general 
appearance confers personal jurisdiction is of great importance 
when a non-resident is sued. In a personal action brought against 
a citizen of another state, the court does not acquire jurisdiction 
over him by virtue of notice served on him in such other state. 
WTiile process can not extend beyond the limits of the state, yet a 
non-resident becomes subject to the jurisdiction of the court by a 
general appearance." In support of these propositions authorities 
are cited from nearly every state in the Union ; they are too numer- 
ous, and the matter is too well settled to require a citation of these 
authorities here. 

This principle has been several times recognized by this court in 
actions at law. Maine Bank v. Ilervey, 21 Maine, 38; BucJcfield 
Branch 7?. R. Co. v. Benson, 43 Maine, 374; Thornton v. Leavitt, 
63 AEaine, 384; Mahan v. Sutherland, 73 Maine, 158. That the 
principle is equally applicable to causes in equity will be seen by 
an examination of the cases above referred to as cited in the 
Encyl. of Pleading and Practice. 

It is suggested in the argument, by defendant's counsel, that in 
accordance with the equity practice in this state, the court will not 
assume jurisdiction over a non-resident defendant merely upon the 
general appearance of counsel and upon an answer signed by coun- 
sel, but will require in addition to the general appearance of coun- 
sel an answer personally signed by such non-resident defendant, 
unless service has been made upon him in the state. We are not 



(^ 



158 Appearance 

aware of any such practice, and no authority to that effect has 
been called to our attention. Upon the other hand, the rule is 
that, in the absence of anything to the contrary, the presumption is 
that an attorney has full right, power and authority to make such 
appearance. In support of this proposition the authorities are 
unanimous. Here, there is no suggestion of any want of authority 
upon the part of the counsel for these defendants to enter a general 
appearance for them. If these non-resident defendants had desired 
to object to the jurisdiction of the court, they should have entered a 
special or conditional appearance. Such an appearance, made for 
the purpose of urging jurisdictional objections, is clearly recognized 
by all courts and works upon practice. 

It is argued that by Chancery Eule XIV defenses by demurrer 
or plea may be inserted in an answer, and that an appearance fol- 
lowed by an answer, in which is contained a plea to the jurisdic- 
tion, should not have the effect of giving the court jurisdiction 
over the person of a non-resident defendant, when jurisdiction is 
acquired in no other way. But, in this ease, the defendants' answer 
does not contain any plea to the jurisdiction of the court over 
these defendants, nor is objection to the jurisdiction of the court 
raised in any way; it merely, in one paragraph, denies that the 
resident defendant had in his possession, or under his control, any 
property belonging to them. But, even if the defendants in their 
answer, in which they make answer to the merits of the cause, had 
also objected to the jurisdiction of the court as to them, it seems, 
in accordance with the authorities, that even this course would 
have subjected them to the jurisdiction of the court. The rule is, 
that when a defendant appears solely for the purpose of objecting 
to the jurisdiction of the court over his person, such motion is not 
a voluntary appearance of defendant which is equivalent to service. 
Where, however, the motion involves the merits of the case, the 
rule is otherwise. Elliott v. Lawliead, 43 Ohio State, 172. See 
also St. Louis Car Co. v. Stillwater St. By. Co., 53 Minn. 129; 
Carroll Y. Lee, 3 G. & J. (Md.) 504; Fitzgerald, etc. Construction 
Company v. Fitzgerald, 137 U. S. 98; Tipton v. Wright, 7 Bush, 
(Ky.) 448. 

These defendants having, as we have seen, voluntarily submitted 
themselves to the jurisdiction of the court, must be held to have 
done so subject to the method of procedure in this state and to all 
statutory provisions in relation to procedure, including, among 



Flixt v. Comly 159 

other things, the power of the court, under chap. 217 Public Laws 
of 1893, in an equit}- proceeding, to strike out the pleadings in 
equity and require the parties to plead at law in the same cause, 
whenever it appears that the remedy at law is plain, adequate and 
complete and that the rights of the parties can be fully determined 
and enforced by a judgment and execution at law, and to then hear 
and determine the case at law. This provision of the statute 
applies to all cases pending in equity, and this order may be made 
by the court, under the conditions named, whenever the court has 
jurisdiction of the subject matter of the cause and over the persons 
of the defendants. That this court has jurisdiction of the subject 
matter of the cause is not denied, and that it acquired jurisdiction 
over the persons of the defendants, we have already decided. The 
important thing is that the court has jurisdiction; it matters not 
how that jurisdiction was acquired over the person of a defendant. 
If a non-resident defendant has voluntarily submitted himself to the 
jurisdiction of the court, the procedure must in all respects be the 
same as if the defendant was a resident of the state. 

We have no question, therefore, of the power of the court in this 
cause, under the conditions named in the act, to order that the 
pleadings in equity be stricken out and to require the parties to 
plead at law in the same cause, which may then be heard and 
determined by the court upon the law side of the court. The cause 
is the same notwithstanding it has been converted from a cause in 
equity to an action at law. The section of the act refers to it as 
"the same cause" and provides that the court may hear and deter- 
mine "the cause" at law, while by another section of the act it is 
provided that no attachment shall be affected by this procedure. 

It is further contended, by the counsel for the defendants, that 
although the court attempted to proceed under this Act of 1893, it 
did not in fact accomplish this intention because of various infor- 
malities, and our attention is called to the insufficiency of the plain- 
tiff's motion ; the fact that no terms were imposed ; and the further 
fact that in making the order the court did not use the language of 
the act. It is true that the plaintiff's motion did not cont<iin an 
averment, "that the remedy at law is plain, adequate and complete, 
and that the rights of the parties can be fully determined and 
enforced by a judgment and execution at law." It simply said 
"that the matter in controversy may be adequately and completely 
determined in a suit at law, and that the issues presented may be 



160 Appearance 

more conveniently tried according to the course of the conunon 
law than in equity." It would have been better practice if the 
motion had followed the language of the act, but we do not think 
that any written motion was necessary, or even that tliis order of 
the court need be made at the instance or request of either party. 
It may be made by the court without the motion of either party 
during the progress of the hearing, if it appears to the court that 
the conditions named in the act exist. See Ridley v. Ridley, 87 
Maine, 445. Whatever the form of the motion in any case, or if 
there is no motion, these facts must be made to appear to the court 
before an order of this kind is made. 

Again, the act provides that the order may be made "upon 
reasonable terms." Here no terms were imposed, and it is claimed 
that upon this account that the order was not properly made. 
But we do not think that the statute makes it obligatory upon the 
court to impose terms : any terms might be unreasonable in a given 
case. The language of the act is similar to the provision of R. S., 
c. 82, § 10, "such errors and defects may be amended on motion 
of either party, on such terms as the court orders." Under this 
statute it has been held by this court that the matter of imposing 
any terms was discretionary upon the court. Bolster v. Inhabi- 
tants of China, 67 Maine, 551. Both of these statutes differ from 
the one allowing an amendment after demurrer, which can only be 
done, by express provision of the statute, upon the payment of 
costs. 

Lastly, it is argued that the order of the court was not in the 
language of the act, that the court did not strike out the pleadings 
in equity and require the parties to plead at law in the same cause, 
and that it does not appear that the justice who made the order 
found that the statutory conditions existed. But this finding by 
the sitting justice was a condition precedent to making the order. 
We must assume that, before making the order to convert the 
cause in equity into an action at law, it was made to appear to him 
that, in the language of the act, "the remedy at law is plain, ade- 
quate and complete and that the rights of the parties can be fully 
determined and enforced by a judgment and execution at law." 

The court in the order did not strike out the pleadings in equity 
and require the parties to plead at law in the same cause. This, 
however, was the precise effect of the order to convert the cause in 
equity into an action at law, and was in substance and effect what 



IsHAM V. Miller 161 

was authorized by the statute. It was a brief and concise form of 
order, by which the court exercised the authority given by this 
statute. 

Exceptions overruled. Case remanded to 7iisi prim for further 
proceedings. 



.■'A 



Disclaimer. 



Isliam V. Miller, U N. J. Eq. 01. (1S88.) 
On motion to take a disclaimer from the files. 

Van Fleet, V. C. : 

The principal object of the suit in this case is to procure a 
decree declaring a deed, absolute on its face, to be a mortgage. 
The deed was made by the complainant to the defendant. The 
bill alleges that the debt, which the deed was intended to secure, 
has been paid, and also that the defendant, on its payment, con- 
veyed part of the land, which she held as security, to the com- 
plainant, and the residue to another person, but that at the time 
these conveyances were made the defendant was a married woman, 
having a husband living, who did not join with her in the exe- 
cution of the deeds, and so, in consequence of the invalidity of 
her effort to convey, she still stands seized of the legal title to 
the lands. To unravel this tangle, the complainant seeks a 
decree declaring that the deed is a mortgage, and that the mort- 
gage debt has been paid, and thus procure an establishment of 
his own title by a judicial declaration that the defendant's right 
in the lands has been discharged. 

To meet the case thus made by the complainant, the defendant 
says that she did not have, at the time the complainant filed his 
bill, any right, title or interest, either legal or equitable, in the 
lands in question, nor did she claim to have, and also, that if the 
complainant had applied to her before filing his bill she would 
have executed any conve3Tance or release necessary to perfect his 
title. The complainant moves to strike the defendant's disclaimer 
from the files. The ground of liis motion is that the actionable 
facts alleged in the bill make a case against which a disclaimer 
constitutes no defence. Or, to state the ground in another form. 



IQ2, Disclaimer 

the complainant says, for & defendant standing in the position 
which the defendant in this case does, to say, I disclaim all right 
and interest in the subject matter of the litigation, neither shows 
that the complainant is not entitled, as against the defendant, to 
the relief he asks, nor that the defendant is entitled to a dis- 
missal. A disclaimer is a mode of defence, and if it prevails 
the defendant must be dismissed, and, as a general rule, he will 
have a right to be dismissed with costs to be paid by the com- 
plainant. If, however, a defendant attempts to disclaim in a 
case where his disclaimer does not entitle him to a dismissal, but 
he must, notwithstanding his disclaimer, still be retained as a 
party defendant, in order that the relief, which the facts alleged 
in the bill show the complainant to be entitled to, may be decreed 
to him, the pleading, being useless to the defendant and without 
effect in the cause, except as an obstruction, will be ordered to 
be taken from the files. Judge Story states the rule on this 
\ subject as follows: "A defendant cannot, by a disclaimer, de- 
prive the plaintiff of the right of requiring a full answer from 
I him, unless it is evident that the defendant ought not, after such 
disclaimer, to be retained as a party to the suit. For a plaintiff 
may have a right to an answer, notwithstanding a disclaimer; 
and in such a case the defendant cannot shelter himself from 
answering by alleging that he has no interest." Story's Eq. PI. 
§ 840. This statement of the rule simply repeats what was de- 
claired by Lord Eldon in Glassington v. Tliwaites, 2 Euss. 458, 
and by Chancellor Walworth in Ellsworth v. Curtis, 10 Paige 
105. And Lord Cottenham, in Graham v. Coape, 3 Myl. & Cr. 
638, held that the course to be pursued, where a defendant dis- 
claimed when he ought to answer, was to order the disclaimer to 
be taken from the files. 

Now, it is entirely certain that the defendant is not entitled to 
a dismissal, for, giving her disclaimer its utmost effect, it is still, 
on the admitted facts of the case, so plain as to be beyond dis- 
pute that, notwithstanding her conveyances, she still holds the 
legal title to the lands in question, and will, while she and her 
husband both live, continue to do so until one of two things 
happens, namely, until she and her husband join in making a 
conveyance of the lands, or it is judicially declared that she sim- 
ply held the legal title to them in pledge as security for the pay- 
ment of a debt, and that the debt has been paid. For the 



SoBiNsoN V. Smith 163 

defendant to say that she disclaims all right and title to tlie 
lands amounts to absolutely nothing at all, either as a ground 
of dismissal, or as a means of transmitting or relinquishing her 
right. The thing that the complainant wants is a judicial decla- 
ration that the deed which he made to the defendant is not what 
on its face it purports to be, but a mortgage. If the facts stated 
in his bill are true, the complainant is unquestionably entitled 
to such a declaration. In view of the facts alleged in the bill, 
such a declaration can be made against nobody but the defend- 
ant. Without her before the court as a party defendant, the 
suit, for all practical purposes, will be abated, and no decree can 
be made, for she is the only person against whom relief, of the 
kind sought, can be given. Tliis statement of the issue tendered 
by the bill shows, as I think conclusively, that any pleading on 
the part of the defendant which docs not in substance either deny 
or admit that the deed is a mortgage, does not in any manner 
meet the complainant's case. A disclaimer, in view of the case .x^J^ 
made by the complainant's bill, is obviously without either object ' 
or effect. The complainant's motion must prevail. _ 

Demurrer, jjs, ^P^ 

Rohinson v. Smith, 3 Paige Ch. (N.Y.) 222. (1832.) 

The bill in this cause was filed by certain stockholders of j^\ ^ 
the New York Coal Company against the directors of that cor- 
poration, charging them with improper conduct in the manage- 
ment of their trust. The company was incorporated in April, 
1824, with a capital of $200,000. By its charter the company 
was restricted from canning on any banking business, and was 
limited solely to carrying on the business of exploring for, digging, , 

and vending coal. (Laws of 1824, p. 217.) The bill charged that 
the commissioners named in tlie act opened books for the subscrip- 
tion to the stock, and that the corporation went into operation 
in June, 1824, when T. L. Smith, M. Hoffman, J. Minturn, C. 
Lawton, W. F. Pell, F. Pell, W. Israel, S. Leggett and S. L. 
Govemeur, were chosen directors of the comptinv. Tliat T. L. vX 

Smith, was elected president, and R. A])bot was appointed secrettiry. 
That soon aft^^r the company was organized, the directors pur- 



1 64 Demureeb 

chased thirty acres of land, supposed to contain a coal bed, for 
which they paid $13,000. That they procured from the land about 
3000 bushels of coal, which they took to the city of New York, 
as a sample. That some time in the course of the same year they 
sold the land, and, as the bill alleged, they had never since employed 
the funds of the company for the purpose of carrying on the 
business of exploring for, diggmg or vending coal. The bill further 
stated, that since that time the directors of the company had used 
and employed their funds almost exclusively in the purchase and 
sale of the stocks of various corporations and institutions. That 
they came to a determination to purchase a majority of the stock 
of the City Bank, and did by their agent purchase 16,000 shares of 
the stock of that bank at a premium of from two to nine and a 
half per cent. That they pledged the same to individuals to raise 
money thereon, at about 90 per cent, upon the par value of the 
stock, and paid the difference out of the funds of the coal com- 
pany; and that the individuals to whom the bank stock was 
pledged, gave to the agent of the coal company their proxies to vote 
for directors of the bank. That the company ordered its agent to 
vote for T. L. Smith, C. Lawton, W. F. Pell, and others, as 
directors of the bank; that he did so vote, and that they were 
accordingly elected such directors on the first Monday of June, 
1825. That the stock of the City Bank was afterwards sold at a 
loss of from 10 to 20 per cent., by which the coal company lost 
$50,000. The bill also charged that this operation of the directors 
of the coal company was to subserve their private purposes, and 
was in violation of their known duty as directors of the company. 
The bill further charged that the directors of the coal company 
also purchased 1500 shares of the New York Gas Light Company, 
at a premium of from 80 to 100 per cent. ; 1000 shares of the New 
York and Schuylkill Coal Company, at an advance or premium 
of from 10 to 30 per cent.; 1500 shares of the Bank of America, 
at a premium of from 3 to 8 per cent. ; 1000 shares of the Jersey 
City Bank, at a premium of from 12 to 25 per cent.; 1500 shares 
of the Mercantile Insurance Company, at a premium of from 8 
to 12 per cent. ; 1000 shares of the Franklin Fire Insurance Com- 
pany, at a premium of from 8 to 20 per cent.; and 1500 shares 
of the Brooklyn Gas Light Company, at a premium of 7 per cent. 
That a portion of the said stocks had been since sold and on which 
the company sustained a loss of about $62,000, exclusive of the 



Robinson v. Smith 165 

loss on the City Bank stock. Tliat a considerable portion of the 
stocks thus purchased had not been re-sold, and were greatly 
diminished in value. Tliat the whole amount of these and other 
stocks purchased by the directors, or in which the company was 
interested, amounted to nearly two millions of dollars. By which 
dealings the directore caused a loss to the coal company of not less 
than $150,000, and thereby rendered its stock of very little value. 
The bill further charged that the amount of debts owing by the 
coal company during a part of the time when these stock specula- 
tions were going on, exceeded fifteen times the amount of the 
capital paid in. The president and secretary were also made de- 
fendants; the bill charging that the books and papers of the com- 
pany were in their possession. The complainants prayed a dis- 
covery and for general relief. 

The defendant F. Pell, put in a general demurrer to the bill 
for want of equity. The other defendants put in a general and 
special demurrer. And for causes of demurrer, they stated that 
it appeared by the bill; that the complainants were owners of 
their stock in severalty, and had no joint interest therein; that 
the capital stock of the company was 4000 shares, and that the 
complainants were owners of only 160 shares. They therefore 
insisted that the owners of the other shares should have been made 
parties. 

The Chancellor: 

Before I proceed to examine the merits of this case, it may be 
proper to refer to the causes assigned as special grounds of de- 
murrer. And first, it is said there are other stockholders who 
ought to be made parties. Where it is not apparent from the bill 
itself that necessary parties are omitted, it can be taken advantage 
of only by plea or answer; showing who are the necessar}- parties, 
and making the objection of a want of parties in a plain and 
explicit manner. {2 Paige's Pep. 280. 1 Monro's Kent. Rep. 107. 
1 A. K. Marsh. Pep. 112. 1 Hogan's Pep. 70.) The defendants 
can demur only when it is apparent from the bill itself that there 
are other persons who ought to have Ijecn made parties. And the 
demurrer should show who are the proper parties. It is true the 
capital stock of the corporation is, by the charter, to consist of 
4000 shares; and the complainants own but IfiO. But it also 
appears from the act of incorporation, that the defendants who were 



166 Demurrer 

directors must also have been stockholders. And from aught that 
appears to the contrary, they may now be the owners of all the 
residue of the stock subscribed. 

The objection for multifariousness cannot be sustained. All 
of the complainants are cestui que trusts, having similar interests, 
in every respect, and arising out of the same trust. They are 
seeking precisely the same redress against their trustees, and for 
the same acts; by which they allege they have received a similar 
and common injury. There is, therefore, no good reason for 
requiring them to file separate and distinct bills. It is a favorite 
object of this court to prevent a multiplicity of suits. And where 
several persons have a common interest, arising out of the same 
transaction, although tlieir interest is not joint, even the defendant 
may sometimes insist that they shall all be made parties, that he 
may be only subjected to the trouble and expense o'f one litigation. 
Upon the principle of the decision of this court, in Brinckerlioff v. 
Brown (6 John. Ch. Eep. 139), the complainants were authorized, 
if not required, to join in this suit. 

The objection that a discovery may subject the company to a 
forfeiture of its charter, is not sufficient to support this general 
demurrer to the whole bill, both as to the discovery and relief, 
even if it would have authorized a demurrer to the discovery of 
particular facts. Under the provisions of the revised statutes, the 
defendants may be compelled to make a discovery, in certain cases, 
although it may subject the corporation to a forfeiture of its 
corporate rights. (2 E. S. 465, § 52.) 

If the allegations in this bill are true, there is no doubt that 
the directors of this company were guilty of a most palpable 
violation of their duty, by engaging in this gambling speculation 
in stocks, which was wholly unauthorized by their charter; and 
which the bill alleges was carried on to subserve their own indi- 
vidual interests and purposes. I have no hesitation in declaring 
it as the law of this state, that the directors of a monied or other 
joint stock corporation, who wilfully abuse their trust, or misapply 
the funds of the company, by which a loss is sustained, are per- 
sonally liable as trustees to make good that loss. And they are 
equally liable, if they suffer the corporate funds or property to be 
lost or wasted by gross negligence and inattention to the duties of 
their trust. Independent of the provisions of the revised statutes, 
which were passed after the filing of this bill, this court had juris- 



EoBiNsoN V. Smith 167 

diction, so far as the individual rights of the corporators were 
concerned, to call the directors to account; and compel them to 
make satisfaction for any loss arising from a fraudulent breach 
of trust, or the wilful neglect of a known duty. To this extent 
Chancellor Kent, in the case of The Attorney Generdl v. The Utica 
Ins. Co. {2 Johns. Oh. Rep. 389), admitted the court had juris- 
diction; although he doubted the general powers of this court 
over the corporation itself to prevent an abuse of its corporate 
privileges. Until very recently, but few incorporated companies, 
in which individuals had any direct pecuniary interest, existed in 
England, except corporations for charitable purposes. And this 
court would very reluctantly interfere with the concerns of mere 
municipal corporations, where a sufficient remedy is afforded, by 
mandamus or quo warranto, or by an indictment against the 
officers of the corporation, for any abuse of their powers by which 
the public has sustained an injury. But since the introduction of 
joint stock corporations, which are mere partnerships, except in 
form, the principles which were formerly applied to charitable 
corporations in England, may be very appropriately extended to 
such companies here. The directors are the trustees or managing 
partners, and the stockholders are the cestui que trusts, and have a 
joint interest in all the property and effects of the corporation. 
(See Wood's Inst. B. 1 ch. 8, p. 110. 11 Coke's Rep. 98, b.) And 
no injury the stockholders may sustain by a fraudulent breach of 
trust, can, upon the general principles of equity, be suffered to pass 
without a remedy. In the language of Lord Hardwicke, in a 
similar case, 'T will never determine that a court of equity cannot 
lay hold of every such breach of trust. I will never determine 
that frauds of this kind are out of the reach of courts of law or 
equity; for an intolerable grievance would follow from such a 
determination." (3 Atk. Rep. 406.) The demurrers on the record 
are therefore not well taken, and should be overruled. 

The defendants have, however, assigned as causes of demurrer, 
ore tenus, that is not alleged in the bill that the corporation, by its 
officers, refused to sue, or that the defendants are the present 
directors, having the control of the corporation, and that there- 
fore the suit should have been in the name of the corporation. 
That even if a sufficient excuse is shown by the bill, for bringing 
the suit in the name of the stockholders, the coqwration should be 
before the court as a party defendant. I tliink at least one of these 



168 Demureer 

objections is well taken ; and that the corporation should be before 
the court, either as complainant or as a defendant. 

Generally, where there has been a waste or misapplication of 
the corporate funds, by the officers or agents of the company, a 
suit to compel them to account for sudi waste or misappHcation 
should be in the name of the corporation. But as this court never 
permits a wrong to go unredressed merely for the sake of form, 
if it appeared that the directors of the corporation refused to 
prosecute by collusion with those who had made themselves 
answerable by tlieir negligence or fraud, or if the corporation was 
still under the control of those who must be made the defendants 
in the suit, the stockholders, who are the real parties in interest, 
would be permitted to file a bill in their own names, making the 
corporation a party defendant. And if the stockholders were so 
numerous as to render it impossible, or very inconvenient to bring 
them all before the court, a part might file a bill, in behalf of 
themselves and all others standing in the same situation. {Hichens 
V. Congreve, 4 Russ. E. 563.) Although the revised statutes have 
provided for cases of this kind in future, this bill cannot be sus- 
tained, unless it is made to conform to the law as it existed at the 
time the suit was commenced. 

The demurrer ore tenus is therefore allowed, upon payment by 
the defendants of the costs of the demurrer on the record. (Attor- 
ney General v. Brown, 1 Swanst. Eep. 288. Durdant v. Redmond, 

\ '\ \1 Vern. 78.)* But the complainants are to be at liberty to amend, 

\ V^ ^ t^^y ^^y ^^ advised. 



/^ ^ J^^n'botham V. Burnet, 5 Johns. Ch. (N. Y.) 18Jf. (1821.) 

f^ \r, ' The bill stated, that lot No. 81, in Manlius (part of military 



^^' /' bounty lands), was patented to Archibald Elliot. That on the 
^j-/ *^' 17th day of January, 1785, before the patent was issued, Elliot, 
<^'yr f^ by an agreement contained in the condition of a bond, sold the 
(^ J^ lot to Leonard Smith, and ])Ound himself to execute a deed of 
.y conveyance. On the 4th of November, 1789, Smith, by an assign- 

Vr' *A demurrer ore tenus appears to be in the nature of a new demurrer 

to the same part of the bill which was before demurred to. And it was 
allowed in this form, upon the argument of the demurrer on record, to 
prevent injustice; as the defendant cannot again be allowed to demur 
to the same matter in any other way. (See ii Ves. Rep. 70.) 



>' 



HiGINBOTHAM V. BURNET 169 

ment endorsed on the bond, sold and assigned the lot and the bond 
to William I. Vredenbergh. The bond, with the assignment en- 
dorsed, was duly deposited in the office of the clerk of Onondaga, 
pursuant to the act of IT'J-i. On the 28th of August, 1790, Vre- 
denbergh sold and assigned the bond, by an endorsement thereon, 
together with all his rights title and interest in and to the land, 
to which he was entitled by the said bond, to John Carpenter: and 
v., at the same time, delivered to Carpenter the patent for the 
lot, and Elliot's discharge from the army. About the year 1792, 
Carpenter conveyed the lot in fee to Jeremiah Jackson, who entered 
upon it, built a house and mills, and made valuable improvements. 
On the 25tli of June, 1799, Jackson reconveyed the lot in fee to 
Carpenter, with warranty. C. entered on tlie premises, and con- 
tinued in possession until his death, in Fobruarj', 1800. In 
February, 1806, a partition of the lands of C. was made among 
his heirs, pursuant to the statute, and the premises in question 
were allotted to the share of his son, Benjamin C. Ever since the 
conveyance of Jackson to John C, he and his heirs have been in 
the peaceable occupation of the preonises, to the present time. 
Since his death (and since the right, if any, of the heirs of V. had 
accrued), several houses, mills, bams, &c. have been erected on 
the premises, and other improvements made, to the value of 
eighteen thousand dollars. That Vredenbergh, at the time of the 
death of John C, lived at Marcellus, within twenty miles of the 
premises, and continued to reside there until his death, in 1813; 
and he was well acquainted with the improvements making on the 
premises. The plaintiffs are severally seised in fee of p'arts of the 
lot, under Benjamin C. ; and the defendants are the children and 
heirs of Vredenbergh. 

The bill furtlier stated, that Vredenbergh, at all times, and 
particularly after the death of Jo'hn C, disclaimed all interest 
in the lot, declaring that his whole interest had been conveyed 
to J. C, and that his heirs were seised thereof in fee. That the 
heirs of V. claim the lot, denying that any other than an estate 
for life was conveyed by their father, for want of words of inherit- 
ance. But the plaantifTs charged, that the conveyance to J. C. 
was intended to create, and did create an estate in fee. That in 
May, 1820, the defendants brought actions of ejectment against the 
plaintiffs, to recover possession of the premises. The plaintiffs 
prayed a discover}^ as to the facts stated in the bill, and for a 



170 Demureek 

release from the defendants of any claim to the lot, and that they 
may be enjoined, &c., and for other relief, &c. An injunction was, 
accordingly, awarded. 

The defendants demurred to the bill: 1. Because the plaintiffs 
claiming to be seised in fee of the premises, under the conveyance 
from v., it was a question of law only. 2. Because the bill con- 
tained no matter of equity. 

The Chancellor: 

This is a demurrer to the whole bill, and there are two causes 
of demurrer assigned. (1.) That the plaintiffs claim to be seised 
in fee of the premises, and therefore the matter is properly and 
exclusively cognizable at law. (2.) That the bill contains no 
matter of equity. 

Perhaps it would be sufficient to dispose of the demurrer, by 
referring to the rule {Laight v. Morgan, 1 Johns. Cases, 429), 
that if a demurrer be general to the whole bill, and be bad in part, 
it must be overruled. If it be good for discovery, and not for relief, 
a general demurrer to the whole bill is bad. The defendants should 
in such a case give the discovery, and demur to the relief; and this 
rule was so settled, in the case referred to, in the Court of Errors. 
I cannot see any doubt, in this case, of the right of the plaintiffs 
to a discovery concerning the deeds charged in the bill to have 
been lost, and concerning their contents. 

But the bill appears to me to state several distinct and sufficient 
heads of equity jurisdiction. 

It is easy to perceive, that the real ground of the claim of the 
defendants, as heirs of Vredenbergh, rests on the defective con- 
veyance from him to John Carpenter, under whom the plaintiffs 
claim title; and that defect consists in the omission of words of 
inheritance, the want of which, I apprehend, would confine the 
operation of the assignment, in a Court of law, to an estate for 
life. But when the right of the soldier rested originally in 
equity, and continued so when he conveyed his right to Smith, 
and when Smith transferred that right to Vredenbergh, and when 
we consider the charge in the bill that Vredenbergh and Carpenter 
negotiated and agreed for the sale and purchase of that entire 
right, and the circumstances attending the assignment from V. to 
C, and the language and mode of the assignment, and the accom- 
panying delivery of the patent and original discharge of the soldier, 



HiGINBOTHAM V. BURNET 171 

there is good cauf^e to infer a mistake in that assignment; and that, 
owing to a defect in drawing it, the intention of the parties was 
not carried into effect. To remedy this defect, and to prevent an 
unconscientious advantage being taken of it, may afford a very fit 
case for equitable interposition. Under such special circumstances, 
a trust in fee may be considered as created, which this Court would 
execute according to the conscience and intention of the parties. 
There are many cases at common law in which a fee has been held 
to pass without the word heirs (Co. Litt. 9. b.) ; and if a trust 
interest in fee was intended to be created by the a>ssignment from 
Y. to C, in like manner as a trust interest in fee was conveyed by 
the deed from Elliot to Smith, and by the assignment from Smith 
to Vredenborgh, then this Court, according to the doc-trine in 
Fisher v. Fields (10 Johns. Rep. 495), would decree an adequate 
legal conveyance, according to that intention, notwithstanding the 
want of words of inheritance. 

The allegations in the bill on wliieh so much stress has been 
laid by the counsel for the defendants, that the plaintiffs were 
seised of the land in question, must be understood to mean an 
equitable, and not a legal seisin. The whole scope of the ])ill, 
and the very fact of coming into this Court, demonstrate thJs 
meaning. 

The bill also states facts, from which we are to infer that 
Vredenbergh and his heirs, the present defendants, are equitably 
estopped from asserting any claim to a reversionan^ interest in the 
land. It is charged, that Y., after the death of Carpenter, for 13 
years, stood by and saw great and costly improvements made upon 
the land, by persons claiming, and believing themselves to be 
owners in fee, under Carpenter, and never interposed any preten- 
sion of right or title. It appears from the cases referred to in 
Wendell v. Van Rensselaer (1 Johns. Ch. Eep. 354), that though 
the right of the party, who thus misleads third persons by his 
silence, be merely a reversionary interest, and subject to a life 
estate, in the very person whom he suffers to deal with the prop- 
erty as absolute owner, the rule of equity still applies, that he 
never shall be permitted to exercise his legal title against such 
person. He is bound, and all persons claiming under him, are 
bound, by his silence. This case is much stronger than ordinary 
ones of the kind ; for here the silence was maintained for thirteen 
vcnr<. nftcr ilv^ nssumod life interest of Carpenter had terminated. 



173 Demurker 

If Carpenter was bound to know the duration of his title, those 
who succeeded to the estate, after his death, were certainly en- 
couraged and misled by the studied silence or express admissions 
of Vredenbergh ; and the case as stated presents one of the strongest 
claims for the assistance of this Court against the assertion of a 
title under him by his heirs. It is to be traced up to imposition 
and fraud. 

The demurrer must, therefore, be overruled with costs, and the 
defendant ordered to answer. 

Order accordingly. 







CHAPTER VI. #^' A ^ 

^^ V> 

PEOCEEDINGS ON BEHALF OF DEFENDANT [Continued]. h^ 

Pleas: Defined, Nature and Office. ; ^ 
Harrison v. Farrington, 38 N. J. Eq. 358. (ISSJ^.jX \y'' 
Bill for relief. On plea in bar. ^. ^ ^ ^v\ 

The Chancellor : /V - \*j * v 

This matter comes before me on the hearing of the defendant's^ wV 



This matter comes before me on the nearmg ot tne defendant's^ w' 

plcti in bar. The bill states that John C. Johnson, the com-V V 

plainant's intestate, and the defendant were copartners up to'\P A 
the death of the former; that the complainant, after having 



\P 



/.y^r the aeath oi tne lormer; mat me compiainaui, aiuex- navijug 
v%.^ jrrepeatedly applied, without success, to the defendant for an 
d \-^ account of the partnership affairs, received a statement from him ' Q 

\ which showed that there was due Johnson's estate from the part- .yj^ , 
nership the sum of $14,578.85; that the complainant was entirely <-^^ i 
ignorant of the affairs of the partnership ; that in the accounts the - y*~'^ 
defendant fraudulently charged Johnson's estate with the amount X^ . 
of a note made by one William C. Miller, which the defendant' I i^' 
ought to have required Miller to pay &c. &c., and that the com- Jq/\ 
plainant, by the false and fraudulent representations of the de- - 
fendant, was induced to accept a smaller sum than the amount 'i v- 
which appeared to be due by the statement. The defendant de- -^ 
murred to part of the bill and pleaded to the rest. The demurrer; *• [\ 
was overruled. 9 Stew. Eq. 107. The plea was also overruled Ij.-^-"" 
(11 Stew. Eq. 1), with leave to amend. The defendant has i ^ ^ 
amended the plea, and answered also in support of it. By the plea 0^1^ ^^^ 
he pleads that an account was stated between him and the com- \ ^"4^ 
plainant, and negatives, by separate denials, supplemented by a \WJi ^ 
general one, the charges of fraud made against him in the bill.' 
His answer is to the same effect. \ 

The complainant's counsel insists that the plea should be over- 
ruled on various grounds: First, because it is not duly verified; 
second, because it does not appear whether it is intended to cover 
the whole or only part of the bill ; third, because the answer is to 

173 



X 



174 Pleas: Defined, Nature and Office 

the same matter as the plea, and so overrules it; fourth, because 
the plea is multifarious in separately negativing the various facts 
stated in the bill in charging fraud ; fifth, because it does not show 
what the balance was that was found due on the alleged account- 
ing. 

The first objection cannot be entertained. The defendant has 
made the oath required by the statute that the plea is not inter- 
posed for delay, but in good faith. The old rule on the subject 
was that to a plea of matter in pais in bar the defendant must 
make oath that it is true. And it has been held that such oath 
is requisite, even though the bill pray an answer without oath. 
Heartt v. Corning, 3 Paige 566. But where the statute directs 
what the verification of the plea shall be, it must be assumed 
that no further or other verification is necessary. It may be 
added that a plea will not be overruled on the hearing for want 
of the requisite oath. The objection must be made on motion, 
on notice to take the plea off the files. 1 Dan. Ch. Pr, 688. 

The objection that it does not apjjear whether the plea is to 
the whole bill or only to part of it, is not tenable. The plea states 
that it is to the "whole of said bill or to so much and such part 
of it as prays an accounting." The bill is, in fact, only a bill 
for an account. It is true there are also prayers for the payment 
of any balance that may be found due, for discovery and for relief 
generally, but these are only incidental and subordinate to the 
great object of the suit, which is the account, or consequent upon 
the attainment thereof, provided the result of the accounting shall 
be in favor of the complainant. But if it be conceded that the 
bill should not be considered as merely a bill for an account, the 
plea is evidently intended to go merely to the claim of the bill 
to an account. If that is properly to be regarded as the whole 
object of the bill, then the plea is to the whole bill ; and if not, 
then it is a plea to so much and such part of the bill as seeks an 
account. It is very clear that the pleader intended to confine the 
plea to the demand for an account. 

The next objection is that the answer is to the same matter as 
the plea. This objection is based on a misapprehension of the 
extent of the rule on the subject. The general rule is, that when 
the defendant, at the same time, sets up the same defence both 
by answer and plea in bar, the former overrules the latter. The 
reason is, that by interposing the plea, he claims that he ought not 



Harkison v. Fakeington 175 

to bo required to answer, and yet at the same time, does answer. 
But wiiere, as in the present case, the bill anticipates the bar and 
alleges facts to avoid it, an answer is neeessary, in subsidium, to 
support the plea. In such case, it is proper not only that the plea 
sliould contain all necessary averments to overthrow those allega- 
tions, but the defendant must support his plea by an answer, also 
denying those allegations. Ferguson v. O'Harra, 1 Pet. C. C. 493. 
"A plea should be drawn," says Professor Langdell, " in the same 
manner, whether it requires the support of an answer or not, i. e., 
if it is a defence to the whole bill, it should be pleaded to the 
whole bill, and then the answer should give such discovery as the 
plaintiff is entitled to for the purpose of trying the truth of the 
plea." Lang. Eq. PI. § 105. See, also, Mitf. Ch. PI. 244, 298; 
Story Eq. PI. § G84. The answer in this case is, according to the 
sitatement in the beginning of it, in aid of the plea, and "to give 
the complainant the discovery he is entitled to touching and con- 
cerning the matters in the bill alleged and charged in avoidance 
of the plea." It is urged that the conclusion of the answer, the 
general denial of combination and confederacy, and the general 
traverse are evidence of the general character of the answer, and 
that it is intended to go to the whole bill. The insertion of the 
c-onclusion referred to is contrary to the rule of this court which 
requires that it be omitted. It has no significance, however, in 
favor of the objection under consideration. 

It is also urged that the answer is not sufficient, in that it does 
not answer all of the bill which is not covered by the plea. I 
see no ground for sustaining this objection. Tlie scope of the biU 
has already been adverted to, and if the complainant is barred 
from an account, his claim to relief wholly fails. 

The next objection is that the plea is multifarious, because it 
negatives the various facts stated in the bill in charging fraud. 
The objection is not well taken. The charges in the bill to sup- 
port the allegation of fraud, must be met in the plea. Mitf. Ch. 
PI. 240, 271. They may be met by a general denial (no matter 
how general), provided it be sufficient to put the charges of fraud 
contained in the bill in issue. Mitf. Ch. PI. 244. It is no ground 
of objection that the denials are explicit and particular. Bogardus 
V. Triniiij Church, 4 Paige 178, 195. They merely put the fraud 
in issue. 

It remains to consider the objection that the ploa does not state 



176 Pleas: Defined, Natuee and Office 

the balance found to be due on the accounting. It is laid down 
as a requisite to a plea of account stated in equity, that it set 
forth what the balance was. Beam. PL Eq. 230. In the case in 
hand, the plea makes no statement on that head. The bar set up 
in the plea is, in fact, not the accounting but the executed agree- 
ment, for the purchase, by the defendant, of the interest of the 
complainants invested in the assets of the firm. Hence, the amount 
of that interest, according to the accounting, is not stated, nor 
is it stated that it was ascertained thereby. The plea is silent as 
to tlie result of the account. Nor does it even state what amount 
the defendant agreed to pay the complainant for the interest of 
his intestate in the property of the firm. It states that they 
accounted and that the complainant urged the defendant to buy 
the interest of his intestate, for the sum of $10,000, and as an 
inducement, offered to allow him the amount of a note of $262.72, 
made by Samuel Thompson and held by the firm, and to waive the 
interest on the notes to be given in payment, and that "a memo- 
randum of that agreement was then and there drawn in writing, 
in words and figures following : 

"New York, Aug. 10th, '76. 
"It is agreed between the undersigned that the interest of the- 
estate of John C. Johnson, deceased, in the late firm of John C. 
Johnson & Co., shall be settled for the sum of $10,000, less the 
amount of Samuel Thompson's note — $262.72. 

"$10,000 00 
"262 72 



"$9,737 28 
"To be settled by notes as follows : [then follows a statement of 
notes], said notes to be without interest." 

It is not stated that this instrument was signed by anybody. 
The plea adds that the complainant afterwards agreed to allow, 
as a "further payment thereon," another claim, which is speci- 
fied, thereby reducing the amount to be paid to $9,582.28; that 
an attachment was issued out of the supreme court of New York, 
at the instance of creditors of the estate of the intestate, against 
the complainant, and served on the defendant, and that a notice 
was served on the latter, by the public administrator of the city 
of New York, "claiming said assets and forbidding the payment 



Heartt v. Corning 177 

of said moneys to said complainant"; that on the 10th of July, 
1878, the complainant sued the defendant in the circuit court of 
Essex county, in this state, for "said balance of $9,582.28," and 
obtained judgroent therein against the defendant on the 31st of 
August following, which the latter paid on the 6th of December 
following, and the complainant gave him a warrant (which is set 
out) for the satisfaction of the judgment. The plea does not allege 
that the complainant ever agreed to take $10,000, or $9,737.28, or 
$9,582.28, for the interest of his intestate in the partnership prop- 
erty. It may be gathered from it that the pleader intended to 
say tha>t he agreed to take the last-mentioned sum for it, but he 
has not done so. He says (to restate it) that the complainant 
urged the defendant to give $10,000, and as an inducement agreed 
to allow him the Tliompson note; that a memorandum of that 
agreement (but it does not say that the defendant agreed to take 
tlie interest and pay any sum for it) was drawm (it does not even 
state that it was signed) ; that the complainant afterwards agreed 
to allow, as a further pajonent thereon, another claim, thereby re- 
ducing the amount to be paid to $9,582.28, and that the complain- 
ant sued the defendant for that sum and recovered judgment, wliich 
the defendant paid. A plea must clearly and distinctly aver all 
the facts which are necessary to render it a complete equitable 
defence to the case made by the bill. This plea is defective, as has 
just been shown; it will therefore be overruled, with costs. 



Eeartt v. Coming, 3 Paige Ch. (N. Y.) 566. (1832.) 

This was a bill filed by Heartt, the surviving partner of the 
firm of Heartt & Smith, against the executor of Smith for an 
account and settlement of the copartnership concerns. The bill 
stated that in September, 1804, Heartt & Smith entered into co- 
partnership, in the hardware business, to commence on the first 
of January thereafter; that Heartt was expected to furnish the 
principal part of the capital, and that Smith was to take the whole 
charge of keeping the books and accounts of the firm, and was 
to make up and state the copartnership accounts annually on the 
first of January in each year; that the partners were to be allowed 
interest on the amount of stock furnisliod ])y thorn respectively, 
to bo computed annually on llio first of January, and carried into 



178 Pleas : Defined, NAxuRii; and Office 

the accounts; and that Heartt was to receive two thirds of the 
profits of the business, and Smith one third. The bill further 
stated that the partnership continued until the first of April, 1812, 
when it was dissolved by mutual consent, and that Smith died in 
March, 1826; that from the commencement of the copartnership. 
Smith took the sole charge of the books, notes and accounts of 
the firm; that complainant did not, during continuance of the 
copartnership, nor until after the death of Smith, inspect the 
books of the firm, or know the contents thereof; and that he was 
not acquainted with his own and his partner's accounts, kept in 
the books, except from the postings in the ledger; that there were 
no annual statements made of the demands or accounts of either 
of the partners, and no annual inventories were taken of the stock, 
demands, or property of the firm; and that there had never been 
any statement or settlement of accounts of the copartnership con- 
cerns made by or between the partners. It was further alleged in 
the complainant's bill, that during the continuance of the copart- 
nership, and afterwards. Smith had received large sums of money 
belonging to the firm, which he had not entered upon the books 
of the company, but had appropriated the same to his own use; 
that he had subscribed for and purchased stocks, in the Bank of 
Troy and other incoq^orated companies, in the name of the firm, 
and in his own name, and had paid for the same with the part- 
nership funds; that he had afterwards appropriated the stock to 
his own use, without the assent of the complainant, and had re- 
ceived the dividends thereon; that during the continuance of the 
copartnership. Smith loaned the partnership funds without interest 
and against the will of the complainant, by which large sums were 
lost ; and that he had also used the name of the firm in endorsing 
for the accommodation of various individuals, by which the part- 
nership was made liable, and sustained losses. The complainant 
also claimed to be credited for the hire of a store, for the keeping 
and hire of a horse and carriage for the use of the firm, and for 
boarding clerks ; and also for large sums of money belonging to the 
complainant, alleged to have been received and appropriated for 
the purposes of the company, and not credited on the books of the 
copartnership. The complainant waived an answer from the de- 
fendant on oath, under the provision of the revised statutes, and 
in conformity to the 40th rule of the court. 

To all that part of the bill which related to errors in the books 



Heartt v. Cok2;ing 179 

of the company, by supposed improper credits to Smith, or by the 
neglect to make proper charges against him, or to the neglect to 
give all pro]K!r credits to the complainant, and to that part which 
sought to charge Smith with the losses upon moneys loaned or 
endorsements made i'or the accommodation of other persons, or 
which related to the bank stock subscribed for or purchased by 
Smith with the funds of the firm, or which related to any other 
errors in the books of the company previous to the first of January, 
1812, the defendant pleaded that Smith, on the first day of Janu- 
ary, 1811, did cause the partnership accounts of the firm, as 
between the company and the complainant, and as between it and 
the defendant, from the commencement of the partnership up to 
and inckuliug the first day of January, 1811, to be made and stated 
in the ledger of the company, and caused the balance to be ascer- 
tained and struck in the several accounts of the said partners, under 
that date; which balances were then carried to the new accounts 
of the partners respectively for the succeeding year, kept in the 
ledger, as by reference to the accounts so stated, balanced and 
settled on the ledger fully appeared. And also that the complain- 
ant and Smith, on the first of Januar}', 1812, caused the partner- 
ship accounts as between the partners respectively and the com- 
pany, from the first of January, 1811, up to and including the 
first of January, 1812, to be made and stated upon the ledger; 
that a balance of $5,432.11 was found due from the partnership to 
the complainant, and of $3,127.35 to Smith; and that the balances 
were struck in the accounts so stated and settled, and were carried 
by the parties to the new accounts kept in the same ledger. And 
that the scheduler A. and B. annexed to the plea were true copies 
of the accounts as stated on the ledger, and that the schedules of 
C. D. contained the items and particulars of those accounts, from 
the other books of the firm, as referred to in the accounts so 
stated, balanced and settled on the ledger. The plea also averred 
that the accounts so stated, balanced and settled were just and true 
to the best of the defendant's knowledge and belief; that the com- 
plainant, from the commencement of the copartnership, had at all 
times had free access to the ledger, and all the other books of the 
firm, and was well acquainted therewith and with the matters 
therein contained ; and that he always acquiesced in the justice and 
accuracy of the several accounts from the times of the statement 
and settlement thereof until at or about the time of the death of 



180 Pleas: Defined, Nature and Oeeice 

Smith, in 1826. The defendant put in an answer to the rest of the 
bill; but as the complainant had waived an answer on oath, the 
plea and answer were not sworn to by the defendant. And the 
cause was brought to hearing, upon the plea, in the usual form. 

The Chancellor: 

It is necessary in the first place to dispose of a question of form, 
as to the verification of the plea. The complainant having waived 
an answer on oath, the defendant's counsel supposed the waiver 
extended to the plea, which in this case is connected with the an- 
swer, as the plea covers only a part of the bill. A plea for some 
purposes may be considered a special answer. And for this reason 
it has been held that the defendant might put in a plea to the whole 
bill, under the usual order for time to answer, although the defend- 
ant in such a case is not permitted to demur. (2 Dicken's K. 
554. 1 Grant's Pr. 166. 1 Brown's Ch. Pr. 356.) But it is not 
an answer within the meaning and intent of the statute under 
which this complainant has waived an answer on oath. A plea 
was never considered as evidence in behalf of the defendant, as to 
the facts stated therein, so as to require the testimony of more 
than one witness to contradict it, even where it negatived a material 
averment in the bill. The object of the statute (2 R. S. 175, § 44) 
was to prevent the complainant from being concluded by the answer 
of the defendant, in a case where he was compelled to come into this 
court for relief, but in which he did not need a discovery, and where 
he was unwilling to permit the defendant to be a witness in his 
own favor, by the forms of pleading. Bills filed under this new 
provision in the revised statutes, are strictly bills for relief only, 
and not bills for discovery and relief. Hence, in a case which 
is proper for a plea, as the complainant is not entitled to a dis- 
covery, it cannot be necessary for the defendant to support his 
plea by an answer, as he must do in most cases where the answer 
on oath is not waived. A plea to a bill of this description can 
seldom be necessary, as the answer cannot be excepted to for in- 
sufiiciency; and the defendant may set up any matter of defence 
in the answer. But where the defendant finds it necessary or ex- 
pedient to resort to this mode of defence, to prevent the trouble 
and expense of a protracted litigation, he must conform to the 
former practice of the court, so far as to verify the allegations 
and averments in his plea by oath, in the usual form. In a case 



Heaett v. Corning 1^1 

of this kind, however, where the negative averments in a plua of 
an executor relate to transactions in the life time of the testator, 
or to acts done by others, it is sufficient if the averments are made 
upon the dcfeiidant's belief only; and they need not be sworn to 
positively. (Drew v. Drew, 2 Vcs. & Beame, 160.) The averments 
in this plea were therefore correct in point of form; but the plea 
should have been put in upon oatli in the usual manner. 

The complainant, however, is wrong in supposing that this is an 
objection which he can take advantage of at the hearing as to the 
sulllcieney of the plea. As well might he object, at the hearing, 
that a plea or demurrer wanted the signature of counsel. The 
proper mode of taking advantage of a formal defect of this descrip- 
tion, is by an application for an order to set aside the pleading, 
or to take it off the files for irregularity. The case of Wall v. 
Iluhhs, 2 Yet!. & Bea. 354, referred to by the complainant's counsel 
on the argument, shows such to be the practice. The application 
there was, to take the plea off the files ; and the only question was, 
whether the complainant was not too late in making the motion, 
after he had entered an order, in the register's office, setting down 
the plea for argument. The application would have been wholly 
unnecessary in that case, if the want of a proper verification 
would have been a sufficient ground for overruling the plea on the 
hearing. If a plea or answer was taken off the files for irregu- 
larity, on the ground that it had not been properly sworn to, the 
defendant, as a matter of course, would have the right to file a new 
one, properly verified. But if a plea is overruled on the hearing, 
the defendant cannot have the advantage of his plea without spe- 
cial leave from the court to amend. The case of Wall v. Iluhhs, 
merely decided that the complainant, by taking a step in the cause 
after the irregularity accrued, was not precluded from making 
a motion to take the plea off the files of the court. But where, 
with full notice of the irregularity, he brings on the argument 
of the plea without asking to have it taken of the files, he is not 
entitled to have it overruled as an insufficient defence, if in other 
respects it is well pleaded. In the case of Beach v. The Fulton 
Banl-, 2 Paige's Ch. R. 307, Wendell's Rep. 36, S. C, although 
an answer had been put in -wathout oath, as to one of the defend- 
ants, and was therefore irregular, it was held that both parties 
were precluded from making any abjection to the answer after a 
replication had been filed, and the proofs had been taken in the 



182 Pleas: Defined, Nature and Office 

cause. And Chief Justice Savage there held that the complainants 
would have been precluded from objecting to the answer on the 
ground of the irregularity, by the filing of a replication thereto 
after notice of such irregularity. (See also, Bihy v. Kemmis, 
Beatty's Ch. Eep. 322.) 

Upon the merits of the plea, if it turns out to be true in point 
of fact, my present opinion is, that it will be sufficient to prevent 
the parties from going into a general account of the partnership 
transactions, as between the copartners, previous to the first of 
January, 1812. The late chief baron of the exchequer in England, 
in a recent case, Tlie Attorney-General v. BrooJcshanh, 2 Young & 
Jerv. E. 42, expressed an opinion that an account stated must be 
actually signed by the parties to enable the defendant to plead it 
in bar to a suit for an account; although he seemed to suppose an 
account not signed might be a good defence if set up in the answer 
and proved at the hearing. That opinion is clearly not law ; and it 
is directly opposed to that of Lord Hardwicke, in Willis v. Jerne- 
gan, 2 Atk. Eep. 252 ; where he says, in express terms, that it is 
not necessary that the account should be signed by the parties. 
(See also, Jessup v. Cook, 1 Halst. Eep. 436; La Malaine v. Caze, 
2 P. A. Brown's Eep. 128.) As there is no statute, or rule of law 
Avhich requires the signatures of the parties to an account stated 
and settled between themselves, to make it binding and obligatory, 
provided the fact of the settlement can be established by other 
proof, it cannot, upon any principle of pleading, be necessary to set 
out any particular species of evidence, in a plea in bar, to enable 
the defendant to avail himself of the stated account as a defence. 

In the case under consideration it appears by the statement in 
the complainant's bill, that it was one of the stipulations in the 
agreement of copartnership that Smith should make up and state 
the partnership accounts, annually, on the first of January in each 
year. Under that stipulation, oven if Smith made up and stated 
the accounts ex parte, in the absence of Heartt, it was the duty of 
the latter to look into them within a reasonable time, and to point 
out the errors, if any existed therein, or he must be considered 
as having acquiesced in the correctness of the accounts as stated 
on the books of the firm; to which books both parties had access 
during the existence of the copartnership. In stating the accounts 
of partners, as between themselves, the entries on the partnership 
l)ooks, to which both partners have had access at the time when those 



Farley v. Kittson 183 

entries wore made, or immediately afterwards, are to be taken as 
prima facie evidence of the correctness of those entries; subject, 
however, to the riglit of either part}' to show a mistake or error in 
the charge or credit. And vouchers for the specific items can never 
be required except under very peculiar circumstances. Here the 
copartnersliip continued but a few montlis after the statement of 
the accounts on the first of January, 1812; and it is possible that 
some fact nuiy be disclosed in the evidence which may render it 
proper to permit the complainant to surcharge or falsify the ac- 
count, as stated on that day for the preceding year, at least. But 
this cannot be done if the plea is now allowed as a conclusive bar 
against opening the account. I therefore think this is a proper 
case for saving the benefit of the plea to the defendant until the 
hearing. 

An order must be entered accordingly, directing the plea to 
stand over until the hearing of the cause; and saving to the defend- 
ant the benefit thereof at that time. In such a case neither party 
recovers costs against the other on the argiiment of the plea, unless 
the contrary is specially directed by the court. (1 Brown's Ch. 
Prac. 359.) 



'IJ^ 



Farley v. Kittson, 120 U. S. 303. (1SS7.) 



Mr. Justice Gray, after stating the case, delivered the opinion 
of the court. 

A brief abstract of the pleadings will help to make clear what 
is presented for decision upon this record. 

Tlie suit was brought by Farley to enforce an agreement by which 
he and the defendants Kittson and Hill agreed to purchase, for 
their joint and equal benefit, the bonds, secured by mortgages, of 
two railroads, of one of which he was receiver, by appointment of 
the court, and of the other of which he was the general manager, 
by appointment of the trustees named in the mortgages. 

The bill alleged the making of the agreement; that its object 
was, by means of the Ijonds so purchased, to purchase the railroads 
at sales under decrees of foreclosure in suits then pending ; that it 
was agreed that Kittson and TTill should conduct the negotiations 
for procuring the necessary funds and purchasing the bonds, and 



18-i Pleas: Defined, Nature and Office 

the plaintiff should furnish such facts, information and advice, and 
render such assistance, from time to time, as should be required 
of him; that the plaintiff had knowledge, not possessed b}' the 
other parties, as to who held the bonds and at what rate, and how 
they could be procured, and as to the nature and value of the rail- 
roads, and as to the pending suits for foreclosure, and his services 
and cooperation were indispensable to the success of the enterprise ; 
that he performed the agreement on his part; that Kittson and 
Hill obtained the requisite funds from other persons, and pur- 
chased the bonds from the bondholders through one Kennedy, the 
authorized agent of the latter, and afterwards purchased the rail- 
roads at sales under decrees of foreclosure; that pending the 
negotiations for the purchase of the bonds, the plaintiff infonned 
Kennedy of his interest, and his connection with Kittson and Hill, 
in the project to purchase them; that the plaintiff at all times, 
to the best of his knowledge and ability, gave full and true answers 
and information to all inquiries made by Kennedy, or by any of 
the trustees or bondholders, or by any person interested in the 
property under his charge as receiver and as manager, and kept 
Kennedy fully informed of all matters coming to his knowledge 
affecting the property, and in all things acted honestly and in good 
faith towards all persons interested in it; that Kittson and Hill 
had organized a new corporation, which was joined as a defendant; 
and that the defendants had thereby obtained a great amount of 
property and of profits, and had refused to account to the plaintiff 
for his share. The bill prayed for a discovery, an account, and 
other relief. 

The individual defendants filed a plea, which, on the motion 
of the defendant corporation, was ordered to stand as its plea also, 
consisting of three parts : 

First. A restatement in detail of some of the facts alleged 
generally in the bill. 

Second. Averments that the plaintiff never informed Kennedy 
or any of the bondholders of his interest in the project for pur- 
chasing the bonds and thereby acquiring the mortgaged property, 
as alleged in the bill; and that neither Kennedy nor the bond- 
holders knew, suspected, or had any information or belief, that the 
plaintiff had or claimed to have any interest in the project, until 
after the foreclosure sales. 

Third. Averments that the making l)y the plaintiff of the agree- 



Farley v. Kittson 185 

liient sued on, and his engag-ing in the enterprise of purchasing 
the bonds and thereby acquiring the railroads, were, as to that rail- 
road of which he was receiver, unhiwful, a breach of his trust as 
such receiver, and a fraud upon the bondiiolders and the court; 
and, as to the railroad of which he was general manager for the 
trustees under the niorl^^ages, a ijreach of trust towards the trustees 
and the bondholders, and a fraud upon them; and that by reason 
of the fiduciary positions so occupied by him the plaintiff was not 
entitled to the aid of a court of equity to enforce the agreement or 
any rigiits growing out of it. 

To this plea the plaintiff filed a general replication, and the 
hearing in the Circuit Court was upon the issue thus joined. 

The pleader and the court below appear to have proceeded upon 
the theory that by a plea in equity a defendant may aver certain 
facts in addition to or contradiction of those alleged in the bill; 
and also not only, if he" proves his averments, avail himself of 
objections in matter of law to the case stated in the bill, as modified 
by the facts proved ; but even, if he fails to prove those facts, take 
any objection to the case stated in the bill, which would have been 
open to him if he had demurred generally for want of equity. 

But the proper office of a plea is not, like an answer, to meet 
all the allegations of the bill; nor like a demurrer, admitting those 
allegations, to deny the equity of the bill ; but it is to present some 
distinct fact, which of itself creates a bar to the suit, or to the part 
to which the plea applies, and thus to avoid the necessity of making 
the discovery asked for, and the expense of going into the evi- 
dence at large. Mitford PL (4th ed.) 14, 219, 295; Story Eq. PI. 
§§ 649, 652. 

The plaintiff may either set down the plea for argument, or file 
a replication to it. If he sets down the plea for argument, he there- 
by admits the truth of all the facts stated in the plea, and merely 
denies their sufficiency in point of law to prevent his recovery. 
Tf, on the other hand, he replies to the plea, joining issue upon 
the facts averred in it, and so puts the defendant to the trouble 
and expense of proving his plea, he thereby, according to the Eng- 
lish chancery practice, admits that if the particular facts stated in 
the plea are true, they are sufficient in law to bar his recovery; 
and if t1i(>y are proved to be true, the bill must be dismissed, with- 
out reference to the e(piity arising from any other facts stated in 
the bill. :Mitford PI. 302,303; Story Eq. PL § 697. That practice 



186 Pleas : Defined, Nature and Office 

in this particular has been twice recognized by this court. Hughes 
V. Blake, 6 Wheat. 453, 472; Rhode ISland v. Massachusetts, 14 
Pet. 210, 257. But the case of Rhode Island v. Massachusetts 
arose within its original jurisdiction in equity, for outlines of the 
practice in which the court has always looked to the practice of the 
Court of Chancery in England. Eule 7 of 1791, 1 Cranch, xvii, 
and 1 How. xxiv; Eule 3 of 1858 and 1884, 21 How. v, and 108 
U. S. 574. And the case of Hughes v. Blake, which began in the 
Circuit Court, was decided here in 1821, before this court, under 
the authority conferred upon it by Congress, had established the 
Eules of Practice in Equity in the Courts of the United States, one 
of which provides that "if upon an issue the facts stated in the 
plea be determined for the defendant, they shall avail him as far 
as in law and equity they ought to avail him." Eule 19 in Equity 
of 1822, 7 Wheat, xix; Eule 32 in Equity of 1842, 1 How. li. The 
effect of this rule of court when the issue of fact joined on a plea 
is determined in the defendant's favor need not, however, be con- 
sidered in this case, because it is quite clear that at a hearing upon 
plea, replication and proofs, no fact is in the issue between the par- 
ties but the truth of the matter pleaded. 

In a case so heard, decided by this court in 1808, Chief Justice 
Marshall said: "In this case the merits of the claim cannot be 
examined. The only questions before this court are upon the suffi- 
ciency of the plea to bar the action, and the sufficiency of the 
testimony to support the plea as pleaded." Stead v. Course, 4 
Cranch, 403, 413. In a case before the House of Lords a year 
afterwards. Lord Eedesdale "observed, that a plea was a special 
answer to a bill, differing in this from an answer in the common 
form, as it demanded the judgment of the court, in the first in- 
stance, whether the special matter urged by it did not debar the 
plaintiff from his title to that answer which the bill required. If 
a plea were allowed, nothing remained in issue between the parties, 
so far as the plea extended, but the truth of the matter pleaded." 
"Upon a plea allowed, nothing is in issue between the parties but 
the matter pleaded, and the averments added to support the plea." 
"Upon argument of a plea, every fact stated in the bill, and not 
denied by answer in support of the plea, must be taken for true." 
Roche V. Morgell, 2 Sch. & Lef. 721, 725-727. 

Tlie distinction between a demurrer and a plea dates as far back 
as tlie time of Lord Bacon, by the 58th of whose Ordinances for 



Farley v. Kittson 187 

the Administratio'n of Justice in Cliancery, "a demurrer is properly 
upon matter defective contained in the bill itself, and no foreign 
matter; but a plea is of foreign matter to discharge or stay the 
suit, as that the cause hath been formerly dismissed, or that the 
plaintiff is outlawed or excommunicated, or there is another bill 
depending for the same cause, or the like." Orders in Chancery 
(Beames's ed.) 2G. Lord Redesdale, in his Treatise on Pleadings, 
says: "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." 
Mitford PI. 297. And Mr. Jeremy, in a note to this passage, com- 
menting on the ordinance of Lord Bacon, observes, "The prominent 
distinction between a plea and a demurrer, here noticed, is strictly 
true, even of that description of plea which is termed negative, for 
it is the affirmative of the proposition which is stated in the bill"; 
in other words, a plea, which avers that a certain fact is not as the 
bill affirms it to be, sets up matter not contained in the bill. That 
an objection to the equity of the plaintiff's claim, as stated in the 
bill, must be taken by demurrer and not by plea is so well estab- 
lished, that it has been constantly assumed and therefore seldom 
stated in judicial opinions; yet there are instances in which it has 
been explicitly recognized by other courts of chancery, as well as 
by this court. Billing v. Flight, 1 Madd. 230; Steff v. Andrews, 
2 Madd. G ; Varich v. Dodge, 9 Paige, 1-19 ; Phelps v. Garrow, 3 
Edw. Ch. 139; Rhode Island v. Massachusetts, 14 Pet. 210, 258, 
262; National Bank v. Insurance Co., 104 U. S. 54, 76. 

It only remains to apply these elementary principles of equity 
pleading to the case before us. 

The averments in the first part of the plea, restating in detail 
some of the facts alleged in the bill, were admitted by stipulation 
of counsel in writing to be true, and no controversy arose upon 
them. 

The substance of the averments in the second part of the plea 
was that neither Kennedy, nor the bondholders whose agent and 
representative he was, had any notice or knowledge that the 
plaintiir had or claimed to have any interest in the project set forth 
in the bill, until after the sales of the railroads under decrees of 
foreclosure. The matter of fact thus averred was put in issue by 
the replication. The testimony of the plaintiff (in connection with 
Kennedy's letter to him), which was uncontradicted, and was the 
only evidence upon the matter pleaded, shows tliat Konnedv. Ix-- 



188 Pleas : Defined, Nature and Office 

fore the completion of the sale and purchase of the bonds, knew 
that the plaintiff was to have an interest in the project, although 
he may not have known the extent of that interest, or that it had 
been already acquired. The want of any notice to Kennedy and 
the bondholders, averred in the plea, was thus disproved. 

The plea, indeed, is supported by the affidavit of one of the 
defendants that it is true in point of fact. But the oath of the 
party to its truth in point of fact is added only for the same pur- 
pose as the certificate of counsel that in their opinion it is well 
founded in matter of law, in order to comply with the 31st Rule 
in Equity, the object of which is to prevent a defendant from de- 
laying or evading the discovery sought, without showing that the 
plea is worthy of the consideration of the court. Ewing v. Bright, 
3 Wall. Jr. 134; Wall v. Stuhhs, 2 Ves. & B. 351. An answer 
under oath is evidence in favor of the defendant, because made in 
obedience to the demand of the bill for a discovery, and therefore 
only so far as it is responsive to the bill. Seitz v. Mitchell, 91 
U. S. 580. But a plea, which avoids the discovery prayed for, is 
no evidence in the defendant's favor, even when it is under oath 
and negatives a material averment in the bill. Heartt v. Corning, 
3 Paige, 566. 

The allegations of the bill, that the plaintiff at all times, to the 
best of his knowledge and ability, gave full and true answers to all 
inquiries made by Kennedy or any of the trustees or bondholders, 
or any person interested in the property under his charge as re- 
ceiver and as manager, and in all things acted honestly and in 
good faith towards all persons interested in it, were not denied by 
the plea, and therefore, for the purposes of the hearing thereon, 
were conclusively admitted to be true. So much of the plaintiff's 
testimony, as tended to show that he intentionally concealed his 
interest from the stockholders and from the court, was outside of 
the averments of the plea, and therefore irrelevant to the issue to 
be tried. 

The plaintiff having neither moved to set aside the plea as irreg- 
ular for want of an answer supporting it, nor set down the case 
for hearing upon the bill and plea only, but having replied to the 
plea, and the only issue of fact thus joined having been determined 
by the evidence in his favor, it is unnecessary to consider whether 
the averments of fact in the second part of the plea ought to have 



Spangler v. Spangler 189 

been supported by an answer, or whether, if proved, they would 
liave made out a defence to the bill. 

The averments in the third part of the plea, that, by reason of 
the plaint ill's position as receiver and general manager of the rail- 
roads, his entering into the agreement sued on, and engaging in 
the enterprise of purchasing the bonds and thereby acquiring the 
railroads, were unlawful, and did not entitle him to the aid of a 
court of equity to enforce the agreement or any rights growing out 
of it, were averments of pure matter of law, arising upon the 
plaiutilfs case as stated in the bill, and affecting the equity of the 
bill, and therefore a proper subject of demurrer, and not to be 
availed of by plea. 

The result is, that the principal question considered by the court 
below and argued at the bar is not presented in a form to be decided 
upon the record before us; and that, for the reasons above stated, 
and as suggested in behalf of the plaintiff at the reargument, the 
plea was erroneously sustained, and must be overruled, and the 
defendants ordered, in accordance ^vith the 34th Eule in Equity, 
to answer the bill. 

Decree reversed, and case remanded, with directions to overrule 
the plea, and to order the defendants to answer the hill. 



Spangler v. Spangler, 19 III. App. 28. (1886.) 

Error to the Circuit Court of Jefferson county ; the Hon. C. 0. 
BoGGS, Judge, presiding. Opinion tiled April 15, 1886. 

Wilkin, J. : 

At the DcM?ember term, 1885, of the Circuit Court of Jefferson 
county, defendant in error filed his bill for divorce against plaint- 
iff in error. This bill alleges that both parties reside in said 
Jefferson county. To this bill plaintiff in error filed a plea den3'ing 
that defendant in error was at the time of filing his bill or since, 
a resident of Jefferson county, and averring that he was at that 
time and still is a resident of Washington county in this State. 
The plea concludes by demanding the judgment of the court 
whether she ought to l)e compelled to make any answer to the 
bill, dc. To this i)lea the defendant in error filed a general de- 
murrer, which was sustiiined. The plaintiff' in error failing to 



190 Pleas: Defined, Xature and Office 

answer further she was defaulted and on a hearing a decree was 
rendered in favor of the defendant in error. The onl}' question 
presented for our decision is as to whether or not the court erred 
in sustaining the demurrer to the plea. 

It was not proper practice to dispose of a plea in chancery on 
demurrer. Story's Equity Pleading, Sec. 697; Daniells' Chan- 
cery Pleading and Practice, Vol. 1, Sec. 4, p. 713 ; Cochran et al. 
V. McDowell, 15 111. 10; Dixon v. Dixon, 61 111. 324. The de- 
murrer may, however, be treated as equivalent to setting the plea 
for hearing, and we shall so consider it. By Sec. 5, Chap. 40, E. S., 
it is expressly provided that divorce proceedings shall be had in 
the county where the complainant resides. The latter clause of 
Sec. 2, Chap. 40, of the statute of 1845, was the same. In ^Vaij v. 
Way, 64 111. 410, the Supreme Court say : "The language is im- 
perative, and excludes the right to commence proceeding in any 
other county than the one in which the residence of the complainant 
is fixed." if the statute could, by possibility, be construed into a 
different meaning, this case effectually disposes of all that is said 
by counsel for defendant in error as to the right of a complainant 
to bring a bill for divorce in any other county than that in which 
he resides. The allegation in the bill that the complainant resided 
in Jefferson county was a material and necessary one, and the 
plaintiff in error unquestionably had the rigM to put it in issue. 
Counsel for defendant in error seem to maintain that this can 
not be done by plea, and in the argument confound this plea with 
a plea in abatement to the jurisdiction as at common law, objecting 
to the manner in which it concludes, and citing authorities as to 
the requisites of a plea at law. It scarcely need be suggested that 
pleas in equity are not to be determined by the rules of pleading at 
law and hence the authorities cited both as to the office and form 
of this plea have no application whatever. The plea in this case is 
not a plea to the jurisdiction, but a plea in bar. The same defense 
set up in the plea might have been interposed by answer, as was 
done in Way v. Way, supra. It may with equal propriety be done 
by plea. A plea to a bill in chancery is proper whenever the de- 
fendant wishes to reduce the cause, or some part of it, to a single 
point, and from thence to create a bar to the suit. Smith's Chan- 
cery Practice, Vol. 1, page 216; Story's Equity Pleading, Sec. 652. 
Pleas in chancery are pure pleas and pleas not pure. Pleas not 
pure are sometimes called negative pleas — Ibid. Sec. 651. It was 



Radfokd v. Folsom 191 

formerly doubted whether a purely negative plea was a legitimate 
mode of defense in equity; but that doubt has been dissipated, 
and it is now firmly established that such a plea is good— Ibid. 668. 
In Sec. 652, supra, the author says : "The true end of a plea is 
to save to the parties the expense of an examination of witnesses 
at large." It would, therefore, seem to be eminently proper in 
this kind of proceeding, if the complainant did not reside in the 
county in which the bill was brought, such residence being a "pre- 
requisite to the existence of the right to file the bill," as was said 
in Wai/ V. Way, supra, to raise the question, by plea, and thus save 
the expense of a general hearing. We see no objection to this 
plea, either in form or substance, as a plea in bar to a bill in chan- 
cery. The court below erred in holding it bad, and the decree is 
reversed and cause remanded for that reason. 



Pendency of Another Suit. 

Radford v. Folsom, U Fed. Rep. 97. (1S82.) 

This cause is now before the court upon a plea to the bill inter- 
posed by the respondents, which is termed a plea in bar, but which, 
in effect, is a plea in abatement. The present bill is filed by George 
W. Eadford, assignee in bankruptcy of Frank Folsom, against Jere- 
miah Folsom in his own right, Jeremiah Folsom, administrator of 
the estate of Sarah M. Folsom, deceased, and Adele, Florence, and 
George B. Folsom, minor heirs of said Sarah M. Folsom, who ap- 
pear by J. B. Blake, their guardian; and in substance the bill 
avers that complainant is the owner of certain realty in the bill 
described, and prays that his title thereto may be confirmed and 
quieted as against the respondents, and that he may have a writ 
of possession. The plea sets forth that prior to the commencement 
of this proceeding, to-wit, in the year 1873, Frank Folsom, to whose 
rights his assignee, George W. Radford, was afterwards substituted, 
brought an action against Jeremiah Folsom and Sarah M. Folsom, 
in the circuit court of Pottawattamie countv, Iowa, "for the same 
matters and to the same effect, and for the like relief and purpose 
as the now complainant doth by his present bill set forth ; in which 
said action issue was joined, and the same is still depending in 
said honorable court, and is undisposed of." To this plea the com- 



193 Pendency of Another Suit 

plainant interposes a demurrer, thus presenting the question 
whether an action pending in the state court of Iowa can be 
pleaded in abatement of a subsequent action commenced between 
the same parties in the United States court for the district of Iowa, 
for the same subject-matter and the same relief. 

Shiras, D. J.: 

The doctrine is now well settled that an action pending in a 
foreign jurisdiction cannot be pleaded in abatement of an action 
commenced in a domestic forum, even if there be identity of parties, 
of subject-matter, and of relief sought. Smith v. Lathrop, 44 Pa. 
St. 326; Bowne v. Joy, 9 Johns. 221; Allen v. Watt, 69 111. 655; 
Insurance Co. v. Brune's Assignee, 96 U. S. 588; Stanton v. Em- 
Irey, 93 U. S. 548. It is equally well settled that at law the pen- 
dency of a former action between the same parties, for the same 
cause and relief, in a court of the state in which the second action 
has been brought, will be cause of abatement if pleaded in the 
second action. Insurance Co. v. Brune's Assignee, 96 U. S. 588. 
In equity, the general rule is the same. Story Eq. PI. §§ 736-741. 
In Insurance Co. v. Brune's Assignee, 96 U. S. 588, it is held 
that "the rule in equity is analogous to the rule at law," and the 
statements of Lord Hardwicke in Foster v. Vassall, 3 Atk. 587, is 
quoted approvingly, to-wit, that "the general rule of courts of 
equity with regard to pleas is the same as in courts of law, but 
exercised with a more liberal discretion." 

The case of Insurance Co. v. Brune's Assignee further states the 
rule to be that "a bill in equity pending in a foreign jurisdiction 
has no effect upon an action at law for the same cause in a domestic 
forum, even when pleaded in abatement"; and further, "it has no 
effect when pleaded to another bill in equity" ; that is to say, a bill 
pending in a foreign forum will not, if pleaded, abate a bill pending 
in a domestic forum. 

The reasons usually assigned in support of this doctrine are that 
the court of the one state or county cannot judicially know whether 
the rights of the plaintiff arc fully recognized or protected in such 
foreign state or count}^, nor whether the plaintiff can enforce to full 
satisfaction any judgment he may obtain in the foreign tribunal; 
and further, that a court will not compel a plaintiff to seek his 
remedy in a foreign forum; or, as it is said by the supreme court 
of Connecticut in Hatch v. Spofford, 22 Conn. 485 : "Tbat country 



Radford v. Folsom 193 

is undutiful and imtaitliful to its citizens which pends them out of 
its jurisdiction to seek justice elsewhere." None of these cases, 
however, meet the exact point presented by the plea interposed 
in the case now under consideration; for in all of them it will 
be found that the proceedings were pending in the courts of differ- 
ent states or circuits, whereas in this case the two proceedings are 
pending within the same state, but the one in the state and the 
other in the federal court. We do not find that this question has 
ever been finally settled by the supreme court of the United States, 
nor by the circuit court for this circuit. 

In the case of Brools v. Mills Co., 4 Dill. 524, is found a full and 
able discussion of the question in the opinion of Judge Love, both 
upon principle and authority, with a review of the decision of Mr. 
Justice Clifford in Loring v. Marsh, 2 Cliff. 322; and the evils 
resulting from permitting parties to litigate the same subject- 
matter in two courts exercising judicial power within the same 
territorial limits, are very clearly and forcibly shown; and the 
conclusion is reached that "it would seem most rational and just 
that a plea in abatement should be allowed in order to avert con- 
sequences so mischievous." The judgment of the court, however, 
in that cause was placed upon another ground; the plea in abate- 
ment being overruled for the reason that it appeared upon the face 
of the plea that the parties to the suit in the state court were not 
the same as the parties to the bill in the United States court, and 
the question now before the court, though discussed, was not 
authoritatively determined. To the report of this cause in 4 Dill, 
is attached a full note by the learned reporter, citing the leading 
cases on the general question; and it is therein stated that "it is 
clear that the foregoing cases do not go to the length of holding 
that the pendency of a prior suit in a state court is not a valid 
plea in abatement to a suit for the same cause, and between the 
same parties to an action, in a United States court sitting in the 
same state"; and the reporter further states that Mr. Justice 
Miller, in a case in the Minnesota circuit, "intimated his inclina- 
tion to the opinion that where the parties are identical, and the 
scope of the subject-matter equally so, the pendency of a prior suit 
in the state court, within the territorial limits of the district where 
the second suit is brought in the federal court, may be properly 
pleaded in abatement, or, at all events, will operate to suspend 
the action in the latter"; but, as we' understand the statement of 

13 



194 Pendency of Another Suit 

the reporter, this was not decided or ruled in the cause, so that, 
as already stated, the question remains an open one. As authorities 
bearing upon the question more or less directly, see Earl v. Ray- 
mond, 4: McLean, 233; U. S. v. Dewey, 6 Biss. 502; Lawrence v. 
Remington, Id. 44:; Smith V. Atlantic F. Ins. Co., 23 N. H. 21. 

In this condition of the authorities, what is the conclusion that 
should be reached from a consideration of the reasons .upon which 
is based the doctrine that under certain circumstances the pendency 
of a prior action may be pleaded in abatement of an action com- 
menced in the courts of the same state? The reason for the rule 
that the pendency of a former action may be pleaded in abatement 
of a second action, is, that if the complaining party has already 
an action pending in which he can obtain full relief, there is no 
justification for harassing the defendant by a second action for the 
same subject-matter. If it should appear, however, that in the 
second action the plaintiff can avail himself of some legal or equit- 
aible advantage, not open to him in the first action, then a legal 
reason is shown for the bringing of the second action, and the 
pendency of the one would not ordinarily abate the other. This is 
the reason why, as a rule, the pendency of an action at law cannot 
be successfully pleaded in abatement of a suit in equity. 

As is said in Story, Eq. PL § 742 : "It can scarcely ever occur 
that the remedial justice and the grounds of relief are precisely 
the same in each court, for if the remedy be complete at law, that 
is an objection to the jurisdiction of a court of equity." 

In the well-considered opinion of the supreme court of Connecti- 
cut in Hatch v. Spofford, supra, it is stated in substance, that while 
the pendency of a prior suit of the same character, between the 
same parties, brought to obtain the same end, is at the common 
law good cause of abatement, yet the rule is not one of unbending 
rigor nor of universal application, nor a principle of absolute law, 
but rather a rule of justice and equity, and that a second suit is 
not, as a matter of course, to be abated as vexatious, but all the 
attending circumstances are to be carefully considered, and the true 
inquiry is, what is the aim and purpose of the plaintifl^ in the insti- 
tution of the second action, — is it fair and just, or is it oppressive ? 

If it appears that the former proceeding, whether at law or in 
equity, is pending in a foreign state or country, and in this respect 
the states of the Union are foreign to each other, this fact in itself 
determines the question adversely to the plea in abatement. 



Radford v. Folsom 195 

If it appears that the two actions are pending within the same 
state, and are both at law or both in equity, and are identical in par- 
ties, subject-matter and relief sought, then no necessity appears for 
the institution of the second proceeding, in which event it would 
clearly be oppressive upon the defendant, subjecting him to unnec- 
essary costs, and in such case the pendency of the first should abate 
the second proceeding. 

On the other hand, if the two proceedings are pending in the same 
state, between the same parties, and concerning the same subject- 
matter, yet the relief sought is different, as in cases of an action at 
law and suit in equity, when the pendency of the one should not 
ordinarily operate to abate the other; for the difference in the relief 
obtainable in the two jurisdictions constitutes a sufficient legal 
reason for the maintenance of both proceedings. 

But it is urged that while the second of the rules as above given 
may be applicable to cases pending in courts of the same state, yet 
it is inapplicable when one case is pending in the state and the 
other in the federal courts for the same state, the argument being 
that the two jurisdictions are foreign to each other, and hence that 
the pendency of a suit in the one court cannot be pleaded in abate- 
ment of a suit in the other. It is true that the state and federal 
tribunals owe their origin to different sources, but when created 
and brought into action within the same territorial limits, can it 
be fairly said that there are two states or jurisdictions co-existing 
within the same limits, and yet foreign to each other, in the sense 
that Iowa is foreign to New York? The same statutory and com- 
mon law is enforced by both tribunals, and it cannot be said that 
if a party is relegated to the state court for the enforcement of his 
rights, that he is thereby sent into a foreign state or country, 
whose laws and modes of proceeding are unknown or unfamiliar. 

As we have already shown, the main purpose of the rule allowing 
the pendency of one action to be pleaded, under given circum- 
stances, in abatement of a second, is to prevent a defendant from 
being unnecessarily harassed, and subjected to additional costs by 
two proceedings when one will fully protect all the rights of the 
plaintiff. Xow, it is apparent that the cost and vexation caused 
to the defendant by the institution of the second suit is, to say 
the least, not lessened by the fact that it is brought in the federal 
while the first is pending in the state tribunal. Tlie evil to be 
remedied is not obviated by the fact that the two proceedings are 



196 Pendency of Another Suit 

pending in tribunals owing their origin, the one to the state, the 
other to the federal government, yet acting within the same tevri- 
torial limits. 

If it appears that the two proceedings, being between the same 
parties, and for the enforcement or protection of the same rights, 
will result in the granting of the same remedy, operative within the 
same territorial limits, then it would seem clear that the second is 
not needed to protect or enforce the plaintiff's rights, and as the 
defendant must of necessity be put to additional trouble and ex- 
pense in defending the second action, it follows that he is thereby 
vexatiously harassed, and in such case he should be enabled to pro- 
tect himself by causing the abatement of the second action. It is 
the duty alike of the state and the United States court to protect 
a defendant from unnecessary and vexatious litigation. If the first 
action is brought in the state and the second in the federal tribunal, 
or vice versa, it is the bringing of the second action that constitutes 
the oppressive and unnecessary act on part of plaintiff, and the 
corrective should be applied in the court whose jurisdiction is in- 
voked oppressively and wrongfully. Again, the fact that the one 
action is pending in the state and the second in the federal court, 
instead of being a reason why the second should not be abated, 
is, on the contrary, a weighty argument for just the opposite con- 
clusion; for if the two proceedings are allowed to proceed at the 
same time, there may arise all the difficulties from a conflict be- 
tween the two jurisdictions, acting within the same state, which 
are so fully presented in the opinion in the case of Brooks v. 
Mills Co., already cited. 

Applying these principles to the case before the court, it follows 
that the demurrer to the plea must be overruled, for the demurrer 
admits the allegation of the plea that the former suit pending in 
the state court is for the same subject-matter, and to the same 
effect, and for the like relief and purpose, that is contemplated in 
the second proceeding; and if that be true, then in the absence 
of any showing justifying tbc institution of the second suit, as being 
needed for the full protection of complainant's rights, it would 
necessarily follow that the second suit was uncalled for, and there- 
fore vexatious. 

In the argument of the demurrer, it was urged that the second 
suit was necessary for the enforcement of plaintiff's rights, for the 
reason that the supreme court of the state had decided in the first 



Bolton v. Gardner 1'J7 

proceeding tlmt the suit was prematurely brought, and hence should 
be dismissed. The effect of such fact cannot be considered on the 
demurrer, as it is not presented by the record, and the complain- 
ant, if he desires to urge the same as a reason justifying the bring- 
ing of the second suit, must bring the same to the knowledge of 
the court in the further progress of the cause. 

McCiuuY, C. J., and Love, U. J., concur. 



Answer to Support Plea. 

Bdton V. Gardner, 3 Faige Ch. (N. Y.) 273. (1832.) 

The bill in this cause was filed by the administratrix of J. Bolton, 
deceased, to obtain the distributive share of the decedent in the 
estate of A. McLachlan, his half-brother. The bill charged that 
McLachlan died in January, 1819, leaving a large personal estate, 
and that the defendant D. Gardner, who married his sister, admin- 
istered thereon: that in February, 1821, Bolton received a letter 
from the defendant S. S. Gardner, a brother of D. Gardner, re- 
questing him to call and see him relative to the estate of McLachlan ; 
that Bolton called accordingly, and S. S. Gardner told him he was 
entitled to some portion of the estate, and that as the agent of his 
brother, the administrator, he wished to settle it with him, and he 
referred him to S. ^liller, the surrogate, for further information; 
that Bolton called on Miller, who advised him that he was entitled 
to about seven or eight hundred dollars out of the estate of Mc- 
Lachlan, but that, as the administrator was a liberal man, he 
thought it probable he would give him a thousand dollars: that 
Miller offered to undertake the business and obtain the money for 
him for a fee of $50, to which Bolton agreed : that a few days 
afterwards Bolton met Miller and S. S, Gardner, by appointment, 
at the otlice of the latter, where Bolton agreed to accept $1,000 for 
his share of the estate of McLachlan; and that he then executed 
a release or assignment of his interest therein to D. Gardner, on 
receiving $050, the remaining $50 being paid to ^filler as his fee. 
The bill further charged that Bolton, at the time of executing 
the release and assignment, was wholly ignorant of his rights as 
one of the next of kin of "McLachlan, and that lie was also ignorant 



198 Answer to Support Plea 

that Miller was the counsel of D. Gardner, which he subsequently 
ascertained to be the case; that during the negotiation Bolton did 
not see any statement of the personal estate of McLachlan, nor 
was he informed of its value, or of his rights therein, either by 
Gardner or by Miller, but that he was induced to sign the release 
and assignment by the representations made to him by S. S. Gard- 
ner, the solicitor, and Miller, the counsel of D, Gardner : that if 
Bolton had known the amount of the personal estate of McLachlan, 
and of his interest therein, he would not have released such interest 
for $1,000, which the complainant averred was less than one-fifth 
of his just distributive share of the estate, and to which he was 
entitled as one of the next of kin. The complainant, therefore, 
insisted that the release and assignment were void, by reason of this 
fraud and imposition ; and that she, as the personal representative 
of Bolton, was entitled to one-fourth of the personal estate of 
McLachlan, deducting therefrom the $950 received from Gardner. 
The bill further stated, that D. Gardner had not filed an inventorv, 
and that he had refused to es:hibit to Bolton in his lifetime, or to 
the administratrix since his death, an account of the estate: that 
at the time of executing the release and assignment, D. and S. S. 
Gardner and Miller well knew that $950 was not one-fifth of the 
distributive share of Bolton in the estate of McLachlan ; that they 
then also knew that Bolton -ftTas ignorant of his rights, and of the 
proportion of the estate to which he was entitled ; and they did not 
produce or show to him any statement or inventory of the estate. 
The bill prayed that the defendant D. Gardner might set forth 
an accoimt of the personal estate of McLachlan which had come to 
his hands as administrator, &c., and of the administration thereof; 
and that he might be decreed to pay to the complainant the dis- 
tributive share of such estate to which she was entitled, as the 
personal representative of Bolton; and for general relief. 

The defendant D. Gardner, as to so much of the bill as sought 
for a discovery or account of the estate of McLachlan, and of the 
administration thereof, and as to all the relief sought by the bill, 
pleaded in bar the release and assignment executed by Bolton, in 
February, 1821. He averred in his plea that it was not true, to his 
knowledge or belief, that Bolton, at the time of executing the re- 
lease, was wholly ignorant of his rights as one of the next of kin of 
McLachlan : that Miller was not at that time his counsel : that 
Bolton was, according to his l^elicf, infonncd of the value of the 



BoLTOX V. Gaedner 199 

estate, and af his rights and interest therein : that the sum of $1,000 
was not less than one-fifth of his distributive share of the estate to 
which lie was entitled as one of the next of kin: that the release 
was not procured by the contrivance and management of S. S. 
Gardner and ]\Iillcr, and by false and untrue representations : that 
it was not true that either the defendant S. S. Gardner, or Miller, 
knew, at the time of making the release, that $950 was not one- 
fifth of Bolton's share of the estate, or that it was far less than his 
distributive proportion thereof; or that they knew he was ignorant 
of his rights and of the proportion of the estate to which he was 
entitled. The defendant further averred in his plea, that he could 
not state whether S. S. Gardner and Miller produced and exhib- 
ited to Bolton any inventory or statement of the property at the 
time of the execution of the release; but that the defendant was 
informed and believed that S. S. Gardner did, at that time, state 
to Bolton and Miller the amount of the estate of McLachlan. 
There were also some other informal averments in the plea as to 
other matters stated in the bill. 

The plea was accompanied by an answer, admitting most of 
the allegations in the bill relative to the original right of Bolton 
to a distributive share of the estate of McLachlan; and containing 
a general denial, according to the defendant's knowledge, informa- 
tion and belief, as to most of the circumstances stated in the bill, 
as evidences of fraud or imposition, to avoid the release. The de- 
fendant also denied, in his answer, that the sum of $1,000 paid to 
Bolton on the execution of the release, was less than one-fifth of 
his distributive share of the estate ; and he alleged that, according 
to his belief, it was fully equal to what he was rightfully entitled 
to. He also alleged that he filed in the office of the surrogate an 
inventory of the estate of McLachlan, in February, 1819; which 
inventory he averred to be in all respects just and true, except 
that after the filing of the inventory, he received eleven volumes 
of books and $132,81, belonging to the estate, which came to his 
knowledge after the filing of the inventory. He also denied that 
Miller was his counsel at the time of the execution of the release; 
but admitted he had since been informed, and that he believed 
Miller, previous to that time, had, as his counsel, signed a plea put 
in by him, the defendant, to a bill filed by Jane Garness relative 
to the estate; but that the name of Miller was affixed to the plea 
without the knowledge or approbation of the defendant. 



200 Answek to Support Plea 

Upon argument before the late vice-chancellor of the first cir- 
cuit, the plea was allowed; with liberty to the complainant to 
reply to the same within ten days, or in default thereof, that her 
bill be dismissed. From this decision the complainant appealed to 
the chancellor. 

The Chancellor: 

Several objections are made to this plea which are merely formal ; 
but the principal objection is that it is pleaded in bar to the dis- 
covery of what the complainant's counsel considers a material fact 
to destroy the defence arising out of the release and assignment of 
Bolton. I believe the answer is sufficiently full as to all the mat- 
ters of the bill not professedly covered by the plea. Whether the 
plea does not cover the discovery of some facts as to which the 
complainant was entitled to an answer, I shall presently consider. 
The rule which requires an answer in support of a plea, in certain 
cases, does not render it necessary that the defendant should deny 
positively, in the answer, matters of which it cannot be presumed 
he has any personal knowledge. Where fraud or other circum- 
stances are charged for the purpose of avoiding a release, the 
defendant pleading the release, must by proper negative averments 
in his plea, deny the allegation of fraud, &c., and must support 
his plea by a full answer and discovery as to every equitable cir- 
cumstance charged in the bill to avoid the bar. (Mad. & Geld. 
Eep. 64; 2 Ves. & Beam. Rep. 364.) But in the case of negative 
averments as to matters not alleged to be the act of the defendant, 
or where, from the nature of the case, he cannot be supposed to 
have any personal knowledge of the subject, it is sufficient for him 
to deny the facts charged upon his belief only. {Drew v. Drew, 2 
Ves. & Beam. 159.) The defendant, however, must be careful so 
to frame his averments that the complainant may put the facts in 
issue by a replication. And where the negative averments in the 
plea are permitted to be made upon the belief of the defendant, 
it will be sufficient for him, in the answer in support of such plea, 
to deny the equitable circumstances stated in the bill, according 
to his knowledge, information and belief only. 

One objection which is urged by the complainants' counsel, 
to the form of the plea in this case, is that some of the averments 
therein professing to negative the charges in the bill, are not direct 
and issuable, but are involved and argumentative. I am inclined 



Bolton v. Gardner 201 

to think this objection is well taken. One of those averments com- 
mences thus: "And this defendant further avers, that for the 
reasons in his answer particularly set forth, he cannot say whether 
or not," &c., concluding with two or three involved exceptions, 
and embracing in a parenthesis another distinct averment of ig- 
norance. This mode of denying an allegation in the bill might 
not perhaps be deemed objectionable in an answer, where every 
allegation, not admitted by the defendant, is put in issue by the 
formal traverse at the close of the answer. But it is bad in a plea 
where the negative averments must tender an issue directly. 

Another objection to the plea is that it is overruled by a part 
of the answer. The defendant, by his plea, objects to answering 
any allegations in the bill which call for a discovery as to the 
situation or amount of the estate of MicLachlan, which has come 
to his hands as administrator; yet he does answer in part as to 
those matters. He alleges, in substance, that the inventory filed 
by him in the office of the surrogate contains a just and true ac- 
count of the estate which had come to his hands, except eleven 
volumes of books and $132, which came to his hands afterwards. 
He also states that the $1,000 paid Bolton at the time of making 
the release, was fully equal to what he was rightfully entitled to, 
and was not, as alleged in the bill, less than one-fifth of his just 
distributive share of the estate. If it was necessary or proper to 
put these allegations in an answer in support of this plea, then it 
was improper to plead the release in bar of the discovery as to the 
amount of the estate. The defendant should have pleaded in bar 
of the relief merely, and have given a full discovery as to the actual 
amount of the estate. If the allegation in the answer, that the 
amount paid to Bolton at the time of the execution of the release 
was not less than one-fifth of his distributive share of the estate 
and that it was fully equal to what he was rightfully entitled to, 
was not necessary to support the plea, it overrules the whole plea 
and constitutes a double bar. (3 Sim. & Stu. R. 281.) Taking 
this answer to be true, Bolton received from the defendant his full 
distributive share of the estate, and all he had any right to claim. 
This of ii^elf is a full defence to the suit, and to the whole relief 
asked for by the bill. 

Independent of these objections to the plea, in point of form 
I think the complainant was entitled to a full discovery as to the 
actual amount of the personal estate of McLachlan. We have 



202 Answer to Support Plea 

before seen that the party pleading a release which the complain- 
ant seeks to impeach upon equitable circumstances, must, in his 
answer supporting the plea, make a full discovery as to every ma- 
terial circumstance relied on to avoid the bar. One equitable cir- 
cumstance relied upon here is, that Bolton understood from Miller 
that his share of the estate was less than $1,000, whereas the com- 
plainant alleges it was more than five times that amount, and that 
this fact was then known to the defendant and his solicitor. If this 
was so, although Miller himself was probably misinformed as to 
the amount, I am not prepared to say that a trustee can be per- 
mitted to support a release from his cestui que trust, founded on 
such a gross inadequacy of consideration; although there was no 
actual fraud intended. I think,, in such a case, the defendant 
should be required to show that the parties were treating for a 
settlement at arms' length, or that he gave the cestui que trust 
a fair statement of the amount of tlie property, so far as was 
necessar}^ to enable him to act understandingly in relation to his 
rights. Although the defendant denies knowledge of the amount 
of property charged in the bill, the complainant has a right to 
know what the property was, and when it came to the defendant's 
hands, to enahle the court to see whether the allegation is true. 

I think the vice-chancellor erred in allowing this plea; and 
his decision must be reversed, with the costs of this appeal. The 
plea is to be overruled, but without prejudice to the right of the 
defendant to insist upon the release and assignment, in his answer, 
as a bar to the relief sought by the complainant's bill. 

As the complainant is prosecuting her cause before the vice- 
chancellor in forma pauperis, the question whether she is to receive 
costs upon the argument of the plea before the vice-chancellor, 
must be reserved until the hearing; but they are not to be allowed 
if the defendant succeeds in his defence. This court will not 
encourage the prosecution of suits in forma pauperis, merely for 
the purpose of obtaining the costs of interlocutory proceedings, 
if there is no reasonable hope of succeeding on the merits. As 
the complainant cannot prosecute an appeal as a poor person, and 
is also obliged to give security for the costs of the adverse party 
in such a case, it is reasonable that she should recover dives costs 
for the proceedings on the appeal. 



Goomiicii V. Pendleton 203 



Goodnch v. Pendleton, 3 Johns. Ch. (N. Y.) 3S4. (1818.) 

Phineas Miller, of Georgia, made his will, the 11th of December, 
1797, appointing Decius Wadsworth, Samuel Kelloek, and liis wife, 
Catharine Miller, his executors, and died the 7th of December, 
1803. Tlie two executors first named declined to act, and the 
executrix administered, but did not take out any letters testa- 
mentary in this state, x\.t the time of his death, the testator was 
a creditor of the United St-ates to forty thousand dollars, and 
upwards, on a contract made for supplying the United States 
with ship timber. Some controversy having arisen between the 
executrix and the United States, relative to this debt, the de- 
fendant, professing great friendship for the executrix, who resided 
in Georgia, wrote her a letter, dated December 4, 1806, in which 
he takes notice of that debt, and expressed a belief, that if he were 
duly authorized, he could obtain the money from the United States, 
and he, at the same time, enclosed a power of attorney for her 
to execute. The executrix received the letter, executed the power 
of attorney, and returned it to the defendant. The power of 
attorney was dated January 30th, 1807, by which the executrix 
authorized the defendant to demand and receive of and from the 
United States, the debt above mentioned, being the balance of 
account as awarded by arbitrators, to give acquittances for the 
same, and to compound, if necessary, any controversy respecting 
it, so far as she, as executrix, might lawfully do. The executrix, 
afterwards, by a letter written by her agent, Eay Sands, from 
Georgia, to the defendant, requested him not to act under the 
power, which letter the defendant received prior to the 26th of 
March, 1807. The defendant, afterwards, in pursuance or under 
color of the power of attorney, on the 13th of January, 1808, 
received from the United States 18,328 dollars, 50 cents, for the 
balance due to the estate of the testator, and as attorney of the 
executrix, gave a discharge to the United States. Tlie defendant 
paid over to the executrix 7,960 dollars, 11 cents, but retained the 
residue of the money so received by him, being 10,368 dollars, 
39 cents, against her consent. The bill further stated that the 
sum so received by the defendant was less than the sum due from 
the United States to the estate of the testator, and less than could 



204: Answer to Support Plea 

have been obtained before giving the power to the defendant ; that 
the sum actually received was by way of compromise, and which 
compromise the defendant was induced to make, not because he 
considered that sum as the full amount due, but with a view to 
obtain possession of it, and apply it to his own use. That the 
executrix, residing in Georgia, and the defendant in New-York, 
was unable to obtain the sum so withheld from her, by the de- 
fendant; though the sum so received by him was as a trustee for 
the estate of the testator, and he was liable to account for the same 
as such trustee. That the executrix died in Georgia on the 3d of 
September, 1814. That on the 9th of October, 1817, the plaintiff 
took out letters of administration, with the will annexed, in New- 
York. That the defendant refuses to account with the plaintiff, 
for the money so received, or to pay it; pretending that when he 
received the power of attorney as aforesaid, there was a debt due 
to him from the estate of the testator, and that it was agreed 
between him and the executrix, when he received the power, that 
he might retain the amount of his debt out of the moneys to be 
received by liim. The plaintiff denied any such agreement; or, if 
it was ever made by the executrix, it was through ignorance of 
her duties, and from an undue confidence reposed in the defendant, 
who professed his desire, in soliciting the power, to promote her 
interest. That if any debt was due to the defendant, it was a 
simple contract debt unsettled, and that the estate of the testator 
was then indebted, by judgments and specialties, to more than the 
amount of all the assets, which the defendant knew; and the 
agreement, if made, would have been a devastavit in the executrix, 
&<3. The bill prayed that the defendant might be decreed to 
account with the plaintiff, as administrator, with the will annexed, 
for the moneys so received by him from the United States, and to 
pay the same, &c. 

The defendant, on the 13th January last, put in a plea and 
answer. For plea, he said, that every cause of action in the bill 
contained, accrued above six years before filing the bill. That 
after the cause of action (if any) arose, to wit, in June, 1808, the 
said C. M., the executrix, was in this state, and that she, by her 
will, appointed her daughter, Louisa Shaw, executrix, who proved 
the will in Georgia. That the sum of money (if any), received 
l)v the defendant, was not received as trustee for the estate of 
P. M., the deceased testator, or for C. M. as executrix, and, there- 



(jiooDiucH V. Pendleton ^05 

fore, the defendant pleads the statute of limitations, in bar of the 
plaintiff's bill. That in support of the plea, and as to so much 
of the bill as charges that the money received by the defendant 
was received as trustee, for the estate of P. M., deceased, and that 
the defendant was, and is, accountable as trustee, he answers, and 
says, that he denies that the said money was received by him as 
trustee, but that the same was received by him on his own account, 
and retained by him, at the time of the receipt, for his own use 
(being applied by him for the payment of a debt justly due to 
liim from 1*. M., in virtue of a special agreement between the 
executrix and him), and not as trustee. 

The cause came on to be heard on the plea in bar and the 
answer in support of it. 

The Chancellor: 

This plea, with its attendant answer, is insufficient. 

1. In the first place, it is multifarious, and contains distinct 
Joints. It states that the cause of action did not arise within 
six years, and that the plaintiff was barred by the statute of 
limitations ; it also states, that the sole acting executrix of Phineas 
Miller, deceased, made her will, and appointed her daughter, Louisa 
Shaw, executor, and that the daughter had proved the will. This 
last point seems to be wholly unconnected with any fact forming 
the plea of the statute: if it meant any thing, it meant that the 
plaintiff was not entitled to the character he assumed, and that 
the suit ought to have been brought in the name of Louisa Shaw. 
Xo doubt, it may, in certain cases, be a good plea, that a plaintiff, 
who assumes to be administrator, was not entitled to that trust; 
and of this we have an example in Ord v. Huddleston, cited in 
:\[itford's PI. p. 189. But I do not mean to say, that the fact thus 
stated would, if it had stood by itself, have been a good plea. It 
is sufficient, however, for the present, to observe, that it is put 
forward in the plea, as a matter of defence, or it would not have 
appeared there, and the rule applies, that a plea containing two 
distinct points is bad. Such a defective plea was overruled by 
Lord Thurlow, in Wiifbrcad v. Brockhurst (1 Bro. 404); and 
Lord Posslyn afterwards observed (6 Vesey, 17), that he would 
not allow a plea of the statute of frauds, when it was coupled with 
another defence. Every plea must rest the defence upon a single 
I'oinf. and upon that point create a bar to the suit. Such is the 



20G Answer to Support Plea 

policy and convenience of pleading, and the party must resort to 
his answer, if he wishes to avail himself of distinct matters. It 
is fit and, salutary that a plea, which mixes together different and 
discordant matter, should be condemned ; for it uselessly encumbers 
the record, and serves no other purpose than to produce confusion. 

2. But I perceive a more important and stronger objection to 
the plea. 

The defendant is charged as a trustee, and with a breach of 
his trust, and with fraud in the execution of it. These charges 
formed an equitable bar to the plea of the statute, and they ought 
to have been fully, particularly, and precisely, denied in the answer, 
put in as an auxiliary to the plea. 

The bill contains the following charges, viz. that the testator, 
Phineas Miller, had a large demand against the United States; 
that the defendant, professing a friendship for Catharine Miller, 
the widow and sole acting executrix, and who resided in the state 
of Georgia, wrote her a letter, in which he takes notice of her 
demand, and expresses a belief that, if duly authorized, he could 
obtain the money for her, and, at the same time, enclosed to her a 
power of attorney to be executed and given to him; that under 
that solicitation she executed and sent him the power; that she 
afterwards wrote him a letter by her agent, requesting him not to 
act under that power, and which letter he received in March, 1807 ; 
that the defendant, acting under color of the power, in January, 
1808, received from the United States 18,328 dollars and 50 cents, 
as for the balance due to the testator, which he received as such 
attorney and trustee, and in that character gave a discharge to the 
United States; that he, contrary to her consent and his duty, 
appropriated, of that sum, 10,368 dollars and 39 cents, to his own 
use; that he received the money upon a composition, made by 
him with the United States, and which he was induced to make, 
not because he considered the sum received to be the full amount 
due, but with a view to obtain possession of it, and to apply it 
to his own use, in discharge of some pretended unsettled debt by 
simple contract, alleged to be due to him from the testator; that 
the estate of the testator was indebted, by judgment and specialties, 
to more than all the assets, and which fact was well known to the 
defendant, and if the executrix had assented to any such appropria- 
tion, she would have committed a devastavit, which the defendant, 
from his professional knowledge, also knew. 



GooDiucii V. Pendleton 207 

Upon such a case, as stated by Hie bill, and not denied by the 
answer, I might well say, with Lord Ilardwicke, in Brereton v. 
Gamul (2 Atk. 240), when he overruled a plea of the statute, as 
not being particular enough, that "the case was of such a nature as 
entitled the plaintiff to all the favor the Court could show her." 

I need not stay to show that the defendant, being charged with 
a fraudulent breach of trust, as an agent or trustee for the 
executrix, cannot set up the statute of limitations, so long as the 
trust is admitted. A trustee cannot protect himself by the statute 
of limitations in a suit brought by the cestiiy que trust; it would 
be a waste of time to look for authorities in support of a principle 
so well known and established. The only question that can now be 
made is, whether the defendant has sufficiently met and denied 
the charges in respect to the creation and breach of this trust. 
He contents himself with denying, in the plea, that the money 
received by him was received as trustee for the estate of Phineas 
Miller, deceased, and with denying, in the answer, that the money 
was received by him as trustee, and with averring that it was 
received on his own account, and retained for his own use, under 
some agreement not detailed. We have no denial of the letter 
professing friendship, and soliciting the appointment, nor any 
denial of the receipt of the letter from the executrix, suspending 
the power, nor of the subsequent receipt of the money from the 
United States, under a composition made in the injurious manner 
and for the unjust purposes stated; nor have we any denial that 
he gave the United States an acquittance or discharge, as attorney 
for the executrix. The defendant cannot be permitted to shelter 
himself under the statute, from the resjDonsibility of such grave 
accusations, by a mere simple denial of the receipt of the money 
as trustee, while he leaves all those facts or charges uncontradicted 
which establish the existence of the trust, and show that he cer- 
tainly did receive the money, as such agent or trustee. If such a 
general denial, without meeting specific charges, was sufficient, 
every trustee might escape from responsibility, by means of the 
statute, and be left to his own construction of what was intended 
by such a denial. But the rules of pleading are founded in better 
sense, and in stricter and closer logic; they require the defendant 
to answer, particularly and precisel}'', the charges in the bill, which 
go to destroy the bar created by the statute. 

Tlie rule is, that the equitable circumstances charged in the 



^>U8 Answer to Suppokt Plea 

bill, and wliich will avoid the statute, must be denied by the 
answer, as well as by the general averment in the plea; and the 
answer in support of the plea (and which is indispensable to its 
support) must be full and clear, and contain a particular and 
precise denial of the charges, or it will not be effectual to support 
the plea. The Court will intend that the matters so charged against 
the pleader, are true, unless they be fully and clearly denied. 
The facts requisite to render the plea a defence, must be clearly 
and distinctly averred, so that the plaintiff may take issue upon 
them; and the answer in support of the plea must contain par- 
ticular and precise averments, to enable the plaintiff to meet them, 
as the object of the answer is to give the plaintiff an opportunity 
of taking exceptions to the traverse of the facts and circumstances 
charged in the bill, which, if true, would destroy the bar set up. 
These general principles of pleading are laid down in Lord 
Eedesdale's Treatise of Pleading (p. 212. 214. 236, 237), a work 
of great authority on the subject: they are also to be met with in 
other treatises of established character. (Cooper's Eq. PI. 227, 
228. Gilbert's For. Eem. 58. Van Heythuysen's Equity Drafts- 
man, p. 443.) They are, indeed, plain, elementary rules, which I 
should have apprehended could not well be mistaken by the equity 
pleader; but we will, for a moment, look into the cases in which 
they have been declared and applied. 

In Price v. Price (1 Vern. 185), the defendant pleaded that 
he was a doiia fide purchaser for a valuable consideration; but 
there being several badges of fraud stated in the bill, though the 
defendant in his plea had denied them, yet, because lie had not 
denied them, hy way of answer, so that the plaintiff might he at 
liberty to except, the plea was overruled. In The South Sea Com- 
pany V. Wymondsell (3 P. Wms. 143), the bill charged fraud, 
and the defendant pleaded the statute of limitations, and denied 
the matters of fraud; hut as there were some circumstances not 
fully denied, the defendant was ordered to answer the bill, with 
liberty to the plaintiff to except, and the benefit of the statute was 
to be saved to the defendant. In Walter v. Glanville (3 Bro. P. C. 
266), sometimes referred to, to show, that if the matters charged 
are answered substantially, it will do, the only question was, 
whether the answer in support of the plea did not fully and par- 
ticularly (as it did in that case) answer the material charges in the 
bill. The necessitv of such an answer was evidently admitted by 



Goodrich v. Pendleton 209 

the counsel, and by the Court; and so it must have been under- 
stood by Lord Ch, King, who made the decree appealed from, and 
who, subsequentl}', in the case cited from P. Williams, required 
such a full and particular answer. 

Lord Hardwicke frequently noticed and supported these rules 
of pleading. Thus, in Brereton v. Gamul, already cited, the plea 
of a fine levied and of five years with non-claim was overruled, 
as not being particular enough. So, in 3 Atk. 70, Anon., the bill 
charged, that since the death of the intestate, the administratrix 
had promised to pay the note as soon as she had effects, and the 
administratrix pleaded the statute of limitations, and that she made 
no ])romise. But the chancellor held the plea to be too general, 
as there was a special promise charged; and he ordered the plea 
to stand for an answer, with liberty to accept. Again; in Hild- 
yard v. Cressy (3 Atk. 303), the defendant pleaded a fine and 
non-claim to a bill for a discovery whether the defendant were a 
bona fide purchaser, for a valuable consideration ; and it appearing 
that the defendant had not made a complete answer, and therefore 
not properly supported his plea, the plea was ordered to stand 
for an answer, with liberty to except. In Radford v. Wilson (3 
Atk. 815), the defendant put in a plea of a purchase for a valuable 
consideration, without notice; but as the instances of notice 
charged in the bill were particular and special, it was held that a 
general denial of notice was not sufficient, and that it must be 
denied as specially and particularly as it was charged, and the plea 
was overruled. 

The modern cases before Lord Eldon contain the same rules. 

Thus, in Jones v. Pengree (6 Vesey, 580), there was a plea of 
the statute of limitations, and an answer. The former was ob- 
jected to as multifarious, and as not covering enough; and the 
answer was objected to as overruling the plea by answering to the 
very parts to which the plea went, and as not answering the ma- 
terial charge, which, if admitted, would have taken the ease out 
of the statute. It was observed, ujwn the argument, that the plea 
ought to go to every thing, except the charges introduced into the 
bill to take the case out of the statute, and which it was necessary 
to answer. The plea was overruled as covering too much, and 
ordered to stand for an answer, with liberty to except ; and though 
that ease (as well as the one which followed") does not strike me 
as distinguished either for precision or clear distinctions, vet it is 

14 



210 Answee to Support Plea 

important in this respect, tliat Lord Eldon adopts and approves 
of the rule, in the very words of Mitford, "that if any matter is 
charged by the bill, which may avoid the bar created by the statute, 
that matter mnst be denied generally, by way of averment in the 
plea ; and it must be denied particularly and expressly, by way of 
answer to support the plea." The reason of the rule his lordship 
stated to be, that the plaintiff was entitled, by exceptions, to com- 
pel the defendant to answer precisely to all the cases put in the bill 
as exceptions to the statute. In the next case, of Bayhy v. Adams 
(6 Vesey, 586), there was a plea of the statute of limitations, 
supported by an answer, and the decision was, that the plea was not 
sufficiently supported by the answer, because the charges in the 
bill were not sufficiently answered. There was a good deal of dis- 
cussion in that case, on the point, whether the averments meeting 
the charges in the bill ought to be repeated in both plea and 
answer; and two decisions in the Exchequer {Pope v. Bush, and 
Edmundson v. Hartley, 1 Anst. 59. 97), which held, that if both 
plea and answer met and denied the same charges by the aver- 
ments, the answer would overrule the plea, were much questioned. 
I need not now enter into that discussion; and even the Ex- 
chequer cases were declared to be confined to awards. It seemed 
to be admitted, throughout the case, that the answer, at least, 
must contain a full and particular denial of the charges; and 
perhaps the better opinion is, that a general denial will be suf- 
ficient in the plea. 

The result is, that a plea of the statute is bad, unless accompanied 
with an answer aiding and supporting it, by a particular denial 
of all the facts and circumstances charged in the bill, and which 
form an equitable bar to the plea of the statute. The plea in this 
case has no such accompanying answer, and it must be overruled. 
The usual order in such cases is, that the plea stand for an answer, 
with liberty -to the plaintiff to except; but in some of the cases 
the plea was declared to lie overruled, and the defendant ordered 
to answer, saving to himself the liberty to insist on the statute 
in the answer. That is the better course in this case ; for to order 
the plea to stand for an answer, with liberty to the plaintiff to 
except, would be prolonging the litigation, as we may take it for 
granted, from the palpable insufficiency of the plea as an answer, 
that the plaintiff would except, and the defendant be finally com- 
pelled to a fuller answer. 



SoDZER V. De Meyer 211 

I shall, therefore, overrule the 2)lea, with costs, and order the 
defendant to answer in six weeks, when he will still have the 
liberty of insisting on the benefit of the statute in his answer. 

Order accordingly. 



Souzer v. De Meyer, 2 Paige Ch. (N. Y.) 57^. (1831 



-,-Kr^y 



^ 



This was an appeal from a decretal order of the late vice chan- 
cellor of the second circuit. The defendants plead the statute of 
limitations to the whole bill, and at the same time put in an answer 
denying the whole equity thereof. The vice chancellor made an 
order, declaring, among other things, that the statute did not 
apply, and was no defence to the matters and charges contained 
in the bill; and for that reason he overruled the plea, with liberty, 
however, to the defendants to insist on the statute in their answer 
as a defence. 

The Chancellor: 

It is a well settled principle of equity pleading, that the de- 
fendant cannot plead and answer, or plead and demur, as to the 
same matter. If he pleads to any part of the bill, he asks the 
judgment of the court whether the matters of the plea are not 
sufficient to excuse him from answering so much of the bill as is 
covered by the plea. Therefore, if he answers as to those matters 
which by his plea he has declined to answer, he overrules the plea ; 
and if he demurs to any part of the bill, and also puts in a plea, 
which is a special answer to the same part, the demurrer is over- 
ruled. If he is willing to give the discovery sought by the bill, 
and has any defence which might be pleaded in bar of the relief 
sought, he will have the full benefit of such defence, if he sets it 
up and insists upon it in his answer. This is always the better 
course, where the expense of a full answer will not be great; 
especially if there is any doubt as to his right to set up the par- 
ticular defence by way of plea. 

In some cases, where the complainant anticipate? the plea, and 
sets up equitable circumstances in his bill to defeat the same, the 
defendant is not only permitted, but actually required, to support 
bis plea by an answer as to those equital)le circumstances. This, 
however, is only an exception to the general rule ; and the answer 



212 Answer to Support Plea 

is not put in as a defence, but to give the complainant the benefit 
of a discovery to defeat the plea, which only contains a general 
denial of the equitable circumstances. Even in that case the plea 
does not profess to cover the discovery as to those particular allega- 
tions in the bill. If they are admitted, or not fully denied by the 
answer, it may be used, on the argument of the plea to counter- 
prove the same. If they are denied, the complainant still has 
an opportunity to contradict the general denial in the plea, and 
the particular denial in the answer, by taking issue on the plea. 
And if the plea is falsified by the proofs, the complainant will not 
lose the benefit of his discovery as to the other matters in the bill, 
but may still examine the defendant on interrogatories, if a dis- 
covery is necessary. (Lube's Eq. PL 237, 335, 342. Mitf. 277, 
302 ;-i Lond. ed.) In the case now under consideration, the de- 
fendants have answered, as well as pleaded, to the whole of the 
charges in the bill, although no equitable circumstances were set 
up in anticipation of the plea. It is very evident, therefore, that 
this plea is overruled by the answer. 

If the plea was bad in form only, but good in substance, as to 
the whole, or any part of the relief sought by the bill, and was 
not put in by the defendants in bad faith, the same should have 
been permitted to stand as a part of their answer, or they should 
have been allowed the full benefit of insisting upon the statute in 
their answer. But as the order has been drawn up in this case, 
although the defendants are to be permitted to insist upon the 
statute in their answer as a defence, it is somewhat doubtful, at 
least, whether they would not be precluded, on the final hearing, 
by the preceding part of the order, which declares that the statute 
is no defence to the matters and charges in the bill. 

As to so much of the bill as seeks for a discovery and satisfac- 
tion of that part of the legacies which was not charged upon the 
land, I apprehend the statute would be a valid bar. The statute 
of this state having given a concurrent remedy in this court and 
in a court of law, to recover such legacies, it seems to follow that 
if the statute would be a good bar in an action at law for the 
legacy, it should be equally so on a bill filed in this court, for the 
same kind of relief. W^iether the same principle would apply to 
the legacies chargeable on the land, after the defendants had sub- 
jected themselves to the payment thereof personally, or whether 
the comjilainants can call for an account for the period of twenty 



D WIGHT V. Ry. Co. 213 

years in analogy to the limitation of actions at law to recover the 
possession of real estate, are questions not necessary to be decided 
on this informal plea. Those questions can be discussed more 
profitable at the hearing, when all the facts are before the court. 

I think the order of the vice chancellor should be so modified 
as to strike out that part thereof which declares that the statute 
does not apply, and is no defence to the matters and charges in the 
bill. So as to leave the whole question, as to the merits of that 
defence, open for discussion at the hearing, if the defendants think 
proper to amend their answer, and insist upon the statute as a bar 
to all or any part of the complainant's claim. The costs on this 
appeal must abide the event of the suit. And as the present vice 
chancellor of the second circuit was formerly counsel in the cause, 
the further proceedings in the case must be had before the chan- 
cellor; the defendants to have thirty days, after notice of this 
decision, to file a supplemental answer by way of amendment for 
the purpose of insisting upon the statute. 



Dwight V. By. Co., 9 Fed. Rep. 785. {1881.) 

Wheeler, D. J.: 

Tlie orators, who are stockholders to a large amount in the 
Vermont & Canada Railroad Company, and citizens of Xew York, 
New Hampshire, and Rhode Island, bring this bill in behalf of 
themselves and all other stockholders having like interests with 
them, not citizens of Vermont, Massachusetts, or Maine, against 
the directors of that corporation, citizens of Massachusetts and 
Pennsylvania, alleging that they refuse to take legal measures to 
protect the rights of the orators, and against the Central Vermont 
Railroad Company, in possession, and the Vermont Central Railroad 
Company, lessee of, and the other defendants, security-holders, 
claiming liens upon the Vermont & Canada Railroad, all citizens of 
Vermont, Massachusetts, and Maine, to recover the possession of 
that road for the Vermont & Canada Railroad Company. 

The Central Vermont Railroad Company pleads that it is in 
possession as a receiver of the court of chancer}- of Franklin county, 
and of the state of Vermont, and the proceedings upon which its 
possession took place are set forth. 



214 Answer to Support Plea 

John Gregory Smith pleads that security-holders, of the same 
class as those made defendants, have brought proceedings in behalf 
of themselves, and all others like security-holders, against the 
Vermont & Canada Railroad Company, in the same court of chan- 
cery, to establish and enforce their security upon this road, in which 
a decision favorable to the validity of their lien has been made by 
the supreme court of the state, and which are now pending in the 
court of chancery to ascertain the amounts of, and facts concerning, 
the different classes of securities; and these proceedings are set 
forth. 

Worthington C. Smith pleads that the Vermont & Canada Eail- 
road Company brought a suit like this, and for the same relief, in 
the same court of chancery, and through its directors, by precon- 
cert with the orators, discontinued the same that this suit might be 
lirought to evade the proper jurisdiction of the state court, and 
confer a seeming, but unreal, jurisdiction upon this court, in 
pursuance of which this suit was brought; and denying that the 
directors have violated their duty, committed any breach of trust, 
or done otherwise than as requested by the orators. 

Jed P. Clark pleads that the orators did not, before bringing this 
bill, in good faith request the directors to take legal measures to 
protect their rights, but that by the planning, suggestion, and re- 
quest of the directors, and concert and arrangement made between 
them and the orators for the sake of escaping from the jurisdiction 
of the state court, to which the jurisdiction of right belonged, 
and to confer upon this court a seeming jurisdiction not real or of 
right, a simulated and unreal pretence of request and refusal were 
made, and that this suit is prosecuted by the Vermont & Canada 
Railroad Company, in the name of the orators, for the common 
benefit of them all, and denying that there has been any such 
refusal by the directors as amounts in legal effect to a breach of 
trust. 

The Vermont Central Railroad Company sets out by plea that 
there were when this bill was brought, and are now, divers and 
sundry stockholders of the Vermont & Canada Railroad Company, 
citizens of Vermont, Massachusetts, and Maine, whose names are 
known to and ascertainable by the oratoi-s, and not by the defend- 
ant, and demurs to the bill for want of the necessary parties. 

None of these pleas is supported by answer. All of them, and the 



D WIGHT V. Kv. Co. 216 

demurrer, have been argued. They may properly be considered in 
the inverse order of their statement. 

The last one, that of the Vermont Central Eailroad Company, is 
not in the proper form and sufficient, even if the fact that there 
were stockholders, citizens of Vermont, Massachusetts, or Maine, 
not invited to take part in the prosecution of the suit, would defeat 
it. In such cases the defendant should, at law, give the plaintiif a 
better writ, by setting out the name and identifying the party 
whose existence is alleged to create a fatal non-joinder, so that the 
plaintiff may traverse the allegation and form a definite issue to 
be tried, or discontinue and bring a new suit, joining the proper 
parties, upon the information given. The rules of pleading are the 
same in equity as at law, unless the reasons of them are varied 
by the different methods of procedure. There is no reason growing 
out of the proceedings in equity for varying this rule. The orators 
have the right to have the names of the stockholders, if there are 
any in tliose states whose existence would defeat the suit, set forth, 
so that they could traverse the existence of the persons or the fact 
of their being stockholders. They could not do that upon these 
allegations. There is no person named whom they may say is not 
a stockholder, or about whom they may say there is no such person. 
A traverse of the plea in its terms would put in issue what the 
orators know that the defendants do not know about the stock- 
holders in those states. It would be quite singular if a suit should 
be abated at the instance of defendants on account of the supposed 
existence of persons whom they cannot name or identify. The 
want of such persons as parties is not likely to harm them. Hotel 
Co. V. Wade, 97 U. S. 13. 

The pleas of Clark and Worthington C. Smith are to the same 
effect, and so nearly alike that they may well be considered to- 
gether. They have been spoken of in argument as pleas to the 
jurisdiction of the court, or to the ability of the orators to brin"" 
suit, or as pleas in abatement otherwise; but, correctly speaking, 
they are not either. Tlie orators and defendants are alleged in the 
bill to be citizens of different states. This fact gives the court 
jurisdiction of the controversy between them, and enables the 
oratoi-s to bring the suit, and to maintain it if they can establish 
their case. The refusal of the directors is a part of their case 
wliicli they must establish, and not a fact on which the jurisdiction 
of tlie court, or their ability to sue, at all depends. If they can 



216 Answer to Support Plea 

establish the fact of refusal, together with the other facts necessary 
to make out a case for the relief asked, then they have a case 
on which they can rest; otherwise, not. They have the right to 
a full answer and discovery from the defendants as to their whole 
case, this part as well as the rest, unless there is some outside fact 
which would show that they have no right to maintain the suit 
at all; or some single fact on which the whole case depends is 
objected to by plea, and full answer and discovery are made to that 
part of the case. Pure and proper pleas in equity were such as set 
up some fact outside of the bill which would show that the bill 
should not be answered at all. These pleas required no answer to 
support them, for they would not be included in that which the 
party was called upon to answer. Anomalous pleas, denying a 
single part of the case, may, by the bill on which the whole case 
depended, come to be allowed, for convenience, to save trying the 
whole case, when the failure of tliat part would be fatal, and for 
safety against enforced discovery in a suit by those not in any 
manner entitled to the discovery; but, as the ground of the plea 
would be included in what the defendant was called upon to 
answer, he could not avoid the right to have at least that part 
answered by merely pleading to it. He must answer that, although 
the plea raising the objection and the answer supporting it might 
show that no answer to the rest of the case ought to be required. 
If this plea should be allowed, the orators would be deprived of the 
discovery on oath to which they are entitled, as to this part of the 
case, as evidence upon the traverse of the plea, if they should 
traverse it, as they would have a right to do. This would be con- 
trary to sound principles and to authority. Story, Eq. PL § 372 ef 
seq. These views are not contrary to the decision in Memphis v. 
Dean, 8 Wall. 64, cited and much relied upon in behalf of the de- 
fendants. There was an answer by the party pleading, as well as 
the plea, denying refusal of the directors to prosecute, and the 
cause appears to have been decided in both courts in chief, and not 
upon the plea alone. 

The plea of John Gregory Smith depends solely upon the effect 
of the pendency of the suit in the state court of chancery in favor 
of himself and other security-holders, of which James E. Langdon 
is the foremost plaintiff in the title to the suit against the Vermont 
& Canada Pailroad Company, through whose rights the orators here 
make claim. Doubts have been entertained by this court and some 



D WIGHT V. Ky. Co. 217 

others as to whether the pendency of a suit in a state or federal 
court in the same district might not be successfully pleaded to the 
further prosecution of a like suit in the other court, and this court 
inclined to the opinion that it could be. Mercantile Trust Co. v. 
Lamoille VaUcy R. Co., 16 Blatchf. 324; Andrews v. Smith, 5 Fed. 
Kep. 833. But it now seems to be well settled that it cannot be. 
Gordon v. Gilfoil, 99 U. S. 168; Latham v. Chafee, 7 Fed. Rep. 
520. If this were not so it has always been held that, in order to 
have the mere pendency of one suit defeat another, the suits must 
be between the same parties, or their representatives, upon the same 
facts, and for the same relief. \Yatson v. Jones, 13 Wall. 679. A 
very slight examination and comparison of the two cases will show 
that they are not brought upon the same facts nor for the same 
relief. The plea is pleaded to the whole bill. According to l>oth 
bills the Central Vermont Railroad Company is in ]X)ssession of the 
road. In that case it is an orator as a security-holder seeking to 
hold the road as security for its pay. This particular defendant is 
a defendant there admitting the right of the Central Vermont Rail- 
road Company. That is essentially a bill of foreclosure by security- 
holders in possession. Tlie decree would ordinarily be that those 
interested must pay or be foreclosed of all right to redeem. The 
decree could go no further than to cut off their right if they should 
not redeem. If they should redeem, the possession would remain 
to be maintained by any other right which the possessor might have 
or claim to have, so far as it would prevail. Another suit would 
be necessary to determine the rights of the Vermont & Canada 
Railroad Company and its stockholders as to everj-thing but the 
foreclosure. In this suit the right to the road is attempted to be 
maintained outside of the right to redeem. If this plea should 
prevail there would be no suit left in which that right could be 
tried. 

Tlie plea of the Central Vermont Railroad Company raises the 
most important questions of any of these pleas, and has received 
such careful consideration as its importance has seemed to demand. 
The bill alleges that this defendant is in posseesion of the road 
without right, and against the right of the Vermont & Canada 
Ixailroad Company and of the orators. This plea asserts that it was 
placed in possession by the court of chancery of Franklin county to 
run, operate, and manage the road under the decree and orders 
theretofore made, and under the direction of the court, so lono- as 



218 Answer to Support Plea 

it should contiime to act as such receiver and manager, and denies 
that it is in possession without right, and that it ought to be com- 
pelled to surrender its possession to the Vermont & Canada Railroad 
Company, and prays judgment whether it ought to answer further. 
The proceedings upon which it was placed in possession show that 
certain persons were, in regular course, made receivers of this road, 
with other railroad property, to operate the roads, and out of the 
income to pay the rent to the Vermont & Canada Railroad Com- 
pany ; that pursuant to an agreement between the parties, according 
to its terms embodied in a decree, the then receivers continued to 
operate the roads according to the provisions of the agreement and 
decree, by which they were to operate them and apply the income 
to the payment of the rent ; then to the payment of the first-mort- 
gage bonds of the Vermont Central Railroad; then to the second- 
mortgage bonds of the Vermont Central Railroad; and then to 
pay it to the Vermont Central Railroad Company; and that upon 
the joint petition of those receivers and their successors, and the 
Central Vermont Railroad Company, a decree was made by which 
the Central Vermont Railroad Company was placed in possession 
in their stead. 

The orators claim that the prior possessors had lost their right to 
this road through their non-payment of rent, and that the transfer 
to the Central Vermont Railroad Company was merely a transfer by 
one to the other, although sanctioned by the court, and that the 
transferee took no greater or different rights than the transferors 
had. The defendants claim that the transfer was ordered by the 
court; that the rights of the Central Vermont Railroad Company, 
under the transfer, cannot be inquired into anywhere except in that 
court ; and that they are valid everywhere else against all claimants. 
The right of the orators, denied by the plea, is the same which they 
set up and seek to enforce by their bill, and which they claim to 
have tried and determined upon the answer of the defendants in 
the usual course. As stated before, the parties are citizens of dif- 
ferent states, and this is a suit in which there is a controversy 
between them, and which those bringing it have the right to have 
determined in this court, unless there is some unusual reason for 
turning them out of court. 

As said by Mr. Justice Campbell in Hyde v. Stone, 30 How. 170 : 
"But the courts of the United States are bound to proceed to judg- 
ment, and to afford redress to suitors before them, in every case to 



DwiQHT V. Ry. Co. 219 

which their jurisdiction extends. They cannot abdicate their 
authority or duty in any case in favor of another jurisdiction/' 
This is not a mere matter of abatement; it goes to the right, and 
none the less because the right of the defendant may rest upon an 
order of the court. The order of court, whatever its effect is, may 
be discharged before any decision is reached, and, if it should be, 
the rights of the parties otherwise would still remain to be deter- 
mined. If it should not be, but should remain in force, whatever 
right it should give to any party, or whatever immunity from 
interference it should afford, could be maintained and upheld. If 
that should be the defendant's title, and it should be found to be 
good, it would prevail. There would be no conflict between courts, 
for all rights acquired through the state court, and all protection 
furnished by the authority of that court, would be respected. 
There is no sound reason apparent why these rights may not stand 
for trial according to the usual course, the same as rights acquired 
by contract, or in any other mode. On principle this seems to be 
the proper course. And there is not any case shown by counsel, 
or which has been seen by the court, among the many wherein 
rights acquired under legal proceedings have come up for adjudica- 
tion, in which the decision has been made otherwise than in chief. 

In Ilagan v. Lucas, 10 Pet. -iOO, where the title of a sheriff to 
property seized by him and receipted was upheld against a marshal 
of the United States, who seized it subsequently, the trial was upon 
the merits of these respective rights. So in Brown v. Clarhe, 4 
How. 4, and in Pulliam v. Oshorne, 17 How. 471. And in Taylor 
V. Carry], 20 How. 583, where the question was as to the right of a 
state seizure, as against proceedings in admiralty, the trial was 
not upon any plea denying the right to interfere, but was upon 
the title acquired through the proceedings. 

In Freeman v. Howe, 24 How. 450, the right of a mortgagee to 
personal property taken by the marshal, on process against the 
mortgagor, was tried on replevin in chief. So similar rights were 
tried in an action of trespass in Buck v. Colhath, 3 Wall. 334. 
And in Wisivell v. Sampson, 14 How. 52, the right acquired by the 
levy of a marshal upon property in possession of a receiver was 
tried upon ejectment on the merits. 

In Pond V. Vermont Valley 7?. Co., 12 Blatchf. 292, the question 
of this same receivership was raised, but not until after the decision 
reported, and upon the hearing before Circuit Judge Johnson on 



220 Answer to Support Plea 

answers and proofs, and it was disposed of as not affecting the 
rights of the parties to the property involved, nor the jurisdiction 
of the court over the case. 

Attention has been particularly called to the provisions of section 
5 of the act of March 3, 1875, to determine the jurisdiction of the 
circuit courts, etc.; 18 St. at Large, 470 (Supt. Rev. St. 175), 
enacting : 

"That if, in any suit commenced in a circuit court, or removed 
from a state court to a circuit court of the United States, it shall 
appear to the satisfaction of said circuit court, at any time after 
such suit has been brought or removed thereto, that such suit does 
not really and substantially involve a dispute or controversy prop- 
erly within the jurisdiction of said circuit court, or that the parties 
to said suit have been improperly or collusively made or joined, 
either as plaintiffs or defendants, for the purpose of creating a case 
cognizable or removable under this act, the said circuit court shall 
proceed no further therein, but shall dismiss the suit or remand 
it to the court from which it was removed, as justice may require, 
and shall make such order as to costs as shall be just," etc. 

Speaking of this section, Johnson, J., in Warner v. Pennsylvania 
B. Co., 13 Blatchf. 231, said : "All that is necessary to bring the 
case really and substantially within the jurisdiction is, that it in- 
volves a controversy of the character, either as to the subject-matter 
or the parties, specified in either the section which defines the juris- 
diction by original suit, or that which authorizes removal, and the 
acquisition of jurisdiction in that manner." As before stated and 
shown, the parties to this suit are citizens of different states, and 
the suit is one of which this court has jurisdiction for that reason, 
if the orators can make out the ease presented by their bill, includ- 
ing the refusal of the directors to prosecute as a part of their case ; 
if they cannot they have no case. That part of their case, as also 
before shown, has not been denied in the necessary manner by 
answer to be effective to defeat the case upon that point, and there 
is no evidence before the court, upon that or any other point, to 
make it appear at all that parties have been either improperly or 
collusively made or joined for the purpose of creating a case within 
the jurisdiction. There is nothing before the court now on which 
the court is authorized to act under the provisions of that section. 

The pleas and demurrer are overruled ; the defendants to answer 
over by the first day of next term. 



Holt v. Daniels 221 

Answer. 

Holt V. Daniels, 01 Vt. 89. (18S8.) 

This was a suit in chancery. Tlie bill alleges that some time pre- 
viously the orator had bought of the defendant a colt, for which 
he had given the defendant his note with the condition that the 
colt should be the property of the defendant until the note was 
fully paid; that since the giving of said note there had been 
other deal between them, and that there was due the orator a 
large balance from the defendant, more than sufficient to dis- 
charge the balance of the note, and that if upon an accounting 
between them anything should be found due from the orator, he 
was ready and willing to pay such balance to the defendant; 
that the defendant for the purpose of embarrassing the orator 
had begun a suit in trover against him for the conversion of the 
said colt, and that such suit was then pending; that since the 
giving of said note the orator had taken the farm of the defend- 
ant to carry on upon shares, under a written memorandum, and 
that the defendant was largely liable to the orator under such 
written memorandum, but that the same was in the possession of 
the defendant, who refused to exhibit to the orator, or to settle 
with him, and allow him the amount his due; that in the mak- 
ing of the said farm trade he had been largely damnified by the 
false representations of the defendant; that he had taken pos- 
session of the defendant's farm, and carried on the same, and 
that the defendant utterly refused to account to him in the prem- 
ises; praying that an account be taken between the parties, and 
that if upon such an accounting there is any balance due the 
defendant upon said note, the orator may be allowed to pay the 
same and redeem the colt, and that the suit at law be perpetually 
enjoined. 

Tlie answer admitted the making of the farm trade, and set 
out the contract in cxtenso: denied that there was any lialanee 
diK' tlie orator on it, or that tlie note secured by lien on the colt 
had l>cen paid; insisted that the orator had a complete remedy 
at law, and that therefore the court had no jurisdiction. 

Tlie case was referred to a master who reportcxl with reference 



:<J22 Answer 

to the circumstances under which the farm was leased and colt 
sold as follows: 

"A few days before the lease was executed but when the con- 
tract was in contemplation, the defendant sold to the orator a 
four-year-old horse colt at an agreed price of $116 and took from 
him his promissory note therefor and reserved a conditional lien 
on said colt for the security of the payment of said note by the 
orator. 

I lind that it was the express understanding and agreement 
between the parties at the time this conditional sale was made 
and the note given by the orator, they then having in view the 
farm trade for the ensuing year, that the orators share of the 
money that should be derived from the sale of butter produced 
on the farm, when it should be sold in the fall of the ensuing 
year, should be applied first to the payment of this note, and 
that the orator and defendant both so understood it." 

When the butter was so sold, there was more than enough of 
the orator^s share to extinguish the note, and the orator desired 
that it should be so applied, but the defendant refused to so 
apply it, and claimed to retain it as security for the fulfilment 
of the terms of the lease on the part of the orator." 

With reference to items 42 and 43 the master reported: 

"If in the opinion of the court the orator can recover dam- 
ages in this suit for the false representations made by the de- 
fendant to the orator as to the productiveness of said farm, 
then I find that the difference between what the farm was repre- 
sented to be and what it really was, amounts to the sum allowed 
on these two items, $118, and that they should he disallowed 
to the defendant ; but if in the opinion of the court such damages 
cannot be recovered by the orator in this suit, then said items 
should be allowed as designated above." 

There had been other deal between the parties, and as a result 
of the entire accounting the master found that, allowing items 
42 and 43, there would be due the defendant the sum of $75.02, 
March 1, 1884; that disallowing said items, there would be due 
the orator on said date the sum of $42.98. 

The defendant had demanded the colt of the orator, and on 
his refusal to surrender the same, had begun a suit against the 
orator in trover for its conversion, which was then pending. 

The master further reported that the defendant insisted at the 



Holt v. Daniels 223 

earliest possible moment before him, that this suit could not be 
maintained for the reason that the orator had a complete remedy 
at law. 

To this report the defendant filed exceptions, and the case 
was heard at the March Term, 1888, Washington County, Rowell, 
Chancellor, upon the pleadings, report and exceptions thereto, 
whereupon it was ordered that the l)ill be dismissed. Appeal by 
the orator. 

Powers, J.: 

The defendant, by a demurrer interposed into his answer, raises 
the question of the jurisdiction of the Court to entertain the bill. 
The propriety of this mode of pleading has been considered of 
late, and the effort has been to adhere to the rules of pleading laid 
down in the text books and best considered eases. 

The respective functions of a dennirrer and an answer are 
entirely distinct and one cannot take the place of the other. 
The answer serves the double pur])ose of pleading and evidence. 
So far as it sets up matter as a bar it is a pleading. So far as 
it serves the complainant's ]nirpose by discovering facts, it is a 
deposition. If the defendant would waive making an answer, 
he may demur or plead. The object of a demurrer or plea, as 
a general rule, is to excuse the defendant from answering the 
bill on its merits. Both are dilatory pleadings, a demurrer being 
proper if the fault of the complainant's case is apparent from the 
face of the bill, and a plea being proper if the fault must be shown 
by bringing matter dehors upon the record. Accordingly it has 
been generally said in the books that a party cannot demur or 
plead and answer the same matter, but he may demur to one part 
of the bill, plead to another and answer to another. If he answers 
to the same part that he demurs to, his answer will overrule his 
demurrer. The rule is the same at law. 1 Chit. PI. 512. The 
reason for the rule is thus given by Gilbert, Forum Rom. 58, in 
speaking of dilatory defenses, "all these pleas with us are to be put 
ante litem contestnm, because they are pleas only why you should 
not answer, and therefore if you answer to anything to which you 
may plead, you overrule your plea, for your plea is only why you 
should not contest and answer, so that if you answer, your plea 
is waived." This rule is laid down everywhere as expressive of the 
true function of a demurrer or plea in its relation to the answer. 



234 Answer 

Mitford (Tyler's Ed.) 304, 305, 411, Beames' PI. in Eq. 37; 
WhaUy v. Dawson, 2 Sch. & Lef. 371; Jones v. Earl of Strafford, 
3 P. Wms. 81; Oliver v. Piate, 3 How. 412; Clarl; v. Phelps, 6 
Johns. Chan. 214; Wade v. Pulsifer, 54 Vt. 71. 

Incorporating a demurrer into an answer is often done and no 
violation of the rule is occasioned if the demurrer is left for 
consideration as if it stood alone. In the old precedents in- 
stances may be found of demurrers and pleas incorporated into 
answers, but in each case the answer was provisional, the plea 
ending with a demand for judgment, and then proceeding, "and 
if this defendant shall by order of this honorable court be com- 
pelled to make any other answer to the said bill, etc., then and 
not otherwise the defendant saving, etc., answereth and saith," 
going through the answer as if no plea had been put in. The 
more modern practice, however, and the one sanctioned by Mit- 
ford and other standard writers, is to file each pleading by itself. 
But in all cases the demurrer should be brought to a hearing 
before the cause is tried on its merits. Wade v. Pulsifer, 54 Vt. 
and cases there cited. 

In this case it is urged that a court of equity has no jurisdic- 
tion, as a court of law could give the orator an adequate remedy. 
This objection, if valid, is apparent upon the face of the bill and 
so is the subject of a demurrer, and if it be sustained the case 
is at an end. But an objection to the jurisdiction of the court, 
if the court has general jurisdiction of the subject matter, will 
not be entertained unless it is brought to a hearing before the 
expense of a trial upon the merits has been incurred. In 1 Dan. 
Chan. Prac. 579, it is said that if the objection to the jurisdic- 
tion is not taken seasonably by plea or demurrer and the de- 
fendant enters into his defense at large, the court having the 
general jurisdiction will exercise it. To the same effect are the 
cases Cong. Society v. Trustees, etc., 23 Pick. 148; Underliill 
V. Van Cortlandt, 2 Johns. Chan. 369; Baiih of Bellows Falls 
V. R. & B. R. R. Co., 28 Vt. 470. Indeed the rule in equity 
appears to be the same as at law. A plea to the jurisdiction at 
law is said to be analagous to a plea in abatement and is the 
earliest in the order of pleading, and if the general issue be pleaded 
the jurisdiction is confessed. So in equity it is a dilatory objection 
that is waived by an answer. In equity, as at law, if the court 
discovers that under no circumstances has it jurisdiction in the 



Holt v. Daniels 235 

premises, it will, at any stage of the proceedings, dismiss the cause 
svxi sponte, if no objection is raised. 

In the case at bar a court of equity has jurisdiction. The 
sale of the colt to the orator witli a lien reserved to the defendant 
amounted to a mortgage of the colt. The orator all the time 
had an equity of redemption and after condition broken might 
sustain a bill to redeem as was held by this court in Blodgett v. 
BlodgeU, M. 48 Vt. Tlie facts appearing from the master's report 
show that the question whether the defendant's lien upon the colt 
had been extinguished by payment in full depended upon an 
accounting of the farm dealings. Courts of equity have concur- 
rent jurisdiction with courts of law in all cases where the common 
law action of account would lie, Fonblanque Eq. 1, 10; Cooper 
Tr. 36; Bispham Eq. 484; Ludlow v. Stenard, 2 Caine's Cas. in 
Error 1; Leach v. Beattie, 33 Vt. 195, and in many other cases 
where the accounts are intricate and a discovery is demanded. In 
the action of trover brought by the defendant against the orator, 
no offset arising out of the farm dealings would be available to 
the orator, and unless he could make out full payment of the lien, 
he would be cast in the suit. But in equity on an accounting he 
can have applied all the indebtedness in his favor that he can 
establish, and if this is insufficient to extinguish the lien, the court 
can give him a day of redemption. 

In taking the accounts of the parties, the master finds that 
items 42 and 43 in the defendant's specification accrued from 
false representations of the defendant. These items should be dis- 
allowed, as in equity no one can be made a debtor by fraud. 

The decree is reversed and the cause remanded with a mandate 
to enter a decree for the orator to recover the sum of $42.98 
reported by the master, with interest thereon from March 1, 1884, 
and that the furtlior prosecution of the suit at law in favor of the 
defendant against the orator mentioned in the pleadings be per- 
petually enjoined. 



vt 



226 ANSWER 



Moors V. Moors, 17 N. H. JfSl. (18Jk5.) 

In Equity. The statements of the bill and answer, tfcgether 
with important testimony in the case, are set forth by the court 
in the opinion. 

Woods, J. : 

The plaintiff, in this suit, seeks to be relieved against a suit 
commenced at law by the defendant upon a promissory note of 
$1,025.52, signed by her, and delivered to him on the 18th day of 
October, 1840. The grounds upon which she claims the inter- 
position of this court are, without any doubt, sufficient to entitle 
her to the relief sought, if the evidence is sufficient. 

She states, in substance, that she had a settlement with the 
defendant on that day, relating to an item of rent, which he owed 
her, and an item of money, paid by him for taxes which she owed 
him, and a claim which was at first disputed, but afterward ad- 
mitted by her, of $25, which he called on her to pay him for wood 
he had furnished her father; that the balance due to him upon 
the adjustment of tliese items was about $10, for which she was 
willing to give her note, and for which she intended to give her 
note; but that, trusting her brother to write it, she, through his 
fraud, had been made to sign a note for $1,025.52, the subject of 
the controversy. 

She states that she did not, at the time, owe him any further 
or other sum, and interrogates him as to whether there were any 
other demands or claims considered or included in the settlement, 
and if so, what? Whether there were any claims presented for 
money horrowed, and if so, what? 

The answer of the defendant was quite full, and shows that he 
held two notes against the plaintiff at the time of the settlement, 
from the aggregate amount of which the small balance of accounts 
due her was deducted, and the note in question for the remainder, 
and that the old notes were given up to hex to be canceled. 

This allegation in the answer does not derive direct support 
from evidence ; but, on the other hand, the plaintiff has produced 
one witness, who was present during the interview, and who ap- 
pears to have had some knowledge of the business that was in 



Mooes v. Moors 227 

progress, and who did not hear any mention made of the old 
notes, or of money borrowed by the plaintiff of the defendant 
on former occasions. This was Friend Moors. 

His wife was also present a part of the time, and, although she 
heard conversation about rent and taxes, and wood, did not learn 
that the settlement comprehended the more important matters of 
the notes. 

The testimony of these witnesses tends undoubtedly to sustain 
the allegations in the bill ; that the three items of mutual account, 
which are described in it, were all that were comprehended in the 
settlement, and that the small balance resulting formed the only 
consideration for the note. 

But that testimony has to be considered in connection with the 
defendant's answer, which, in this material point in the con- 
troversy, is in direct conflict with the allegations of the bill, and 
the question arises as to the weight that is to be allowed to the 
answer. 

The general rule of law is quite clear, that when the answer 
controverts a material allegation of the bill, no decree can be made 
for the plaintiff, unless the answer in that particular is overborne 
by evidence that is more than equivalent to the testimony of one 
witness. 2 Story's Eq., sec. 1528; Dodge v. Griswold, 12 X. H. 
Eep. 577. 

In order that the answer may have that force, it is necessary 
that the statement of the bill which it controverts be a material 
statement; that is, that it be essentially a part of the plaintiff's 
ease, and that the answer, so far as it relates to the statement, 
contain such matters only as the defendant is required by the 
exigencies of correct pleading to embrace in his answer. Or, in 
other words, that it go to the point of discovery, to which the 
plaintiff is entitled, by the case that he has stated ; for it is clear 
that a statement which the defendant volunteers is entitled to no 
such consideration as is accorded to an answer strictly responsive 
to, and clearly demanded by, the case of the plaintiff. 

The plaintiff's case, as stated by the bill, is, that the note in 
controversy was obtained by fraud ; that she did not intend to give 
such a note ; that no such sum was due, and that no other demands 
than those which she enumerated were embraced in the settle- 
ment. 

Now it is sometimes a question of fHfTHnilty to settle how f;ir 



238 Answer 

a defendant is required to go in his answer, and how far he may 
protect himself by saying that it is as particular as the plaintiff's 
question. Story's Eq. PL, sec. 855, note. But one principle, well 
stated, and stated in the books in the various forms, is this: that 
a simple denial of the plaintiff's case literally, as stated, is wholly 
insufficient. He must meet it with full and circumstantial denial, 
and not with a negative pregnant, which, while it controverts the 
case in the precise terms in which it is stated, is perfectly con- 
sistent with one not substantially differing from it. Story's Eq. 
PL, sec. 855 ; Woods v. Mornll, 1 Johns. Ch. 103. As, if he be 
charged with the receipt of a sum of money, he must deny that 
he has received that sum, or any part thereof, or else set forth 
what part he has received. 

If to that part of the bill which stated what items were com- 
prehended in the settlement, the defendant had said no more than 
that other items were comprehended, the plaintiff might still have 
had substantially the case made by the bill, and the answer yet 
have been true. 

To that part of the bill which states that no more than the 
small sum named was due, the defendant was bound to answer, 
not only how much was due, but, to the best of his ability, upon 
what account it was due. Such discovery is important to enable 
the plaintiff to amend her case, or to maintain it by disproving 
the consideration, which, of course, it is the more difficult to do 
before the defendant has been called on to specify it. These 
obvious purposes of the discovery would have been defeated by a 
less explicit answer. 

The answer, therefore, in discovering what matters were em- 
braced in the settlement, contained no more than the defendant was 
bound by the statement of the plaintiff's ease to set forth, or was, 
in other phrase, strictly responsive to the bill. 

Although tending to sustain a material statement of the bill, 
we cannot say that the testimony of Friend Moors and his wife 
is in conflict with the answer in the particulars to which thoy in 
common relate. Had those witnesses participated in the transac- 
tion; had they, or either of them, had occasion or an interest to 
know its details, or had they even been so situated that they could 
have known them with reasonable certainty, the case would have 
been different. As it was, it is not unreasonable to suppose that 
they might have heard more of the smaller items, that required 



Beech v. Haynes 229 

and actually engaged discussion, than of the greater matters of 
the notes and interest, which might have been adjusted with fewer 
words, because of a nature to admit of no question. 

It is plain that all that is stated in the answer, on the subject 
of the settlement, might have been strictly true, and yet the facts 
stated have wholly escaped the notice of both the witnesses. How- 
ever their testimony, therefore, may tend to detract from the credit 
that might otherwise be due to the answer, it ought not to be 
considered as coming in direct conflict with it. The answer is the 
testimony of one directly to a fact, about which it is scarcely 
possible that he could have been mistaken, or that he could have 
forgotten. The testimony of the witnesses, on the other hand, 
is only to the point that they did not observe a transaction that 
it is certainly possible might have taken place without their obser- 
vation. 

Nor can we say that the case of the plaintiff derives material 
support from considering the other evidence which has been ad- 
duced by either party. No part of it goes to the point of sustain- 
ing the allegations of the bill against this denial in the answer, 
of the very essence of the plaintiff's case, even if we could say that 
the preponderance was in favor of the plaintiff, on the secondary 
matters on which it bears. 

The conclusion is, that the plaintiff's case, having been denied 
by the answer, and not sustained by sufficient evidence, no decree 
can be pronounced in her favor. 

Bill dismissed without prejudice. 



Beech v. Haynes, 1 Tenn. Ch. 569. (187Jk.) 

The Chancellor: 

The question submitted to me on this record is one that savors, 
perhaps, more of curiosity than of practical utility in the present 
state of the law of evidence. It is, how far the complainant may 
use the admissions of a defendant in his answer to charge him, 
without giving him the benefit of the matters of discharge or avoid- 
ance, with which the admissions are coupled. And the difficulty 
is not so much in ascertaining the law bearing upon the point in 
question as upon tlie application of that law to the facts of the 
particular case. 



330 Answer 

The general rule undoubtedly is that an answer which, while 
admitting or denying the facts in the bill, sets up other facts 
in" defense or avoidance, is not evidence of the facts so stated. 
Sto. Eq. Jur. § 1,529; Gresley's Eq. Ev. 13. This rule, upon a 
careful review of the authorities, was considered as well settled 
by Ch. Kent in Hart v. Ten Eyck, 2 J. Ch. 88; and, although 
its application to the facts of that case was held erroneous by the 
court of errors, it has been approved by the Supreme Court of the 
United States in Clements v. Moore, 6 Wall. 315, and by our Su- 
preme Court in Napier v. Elam, 6 Yer. 113. The qualification of 
the rule, or of its application, established by the Court of Errors 
of New York upon appeal in the case of Uart v. Ten Eyck, is 
stated to have been, for the decision was never reported, that if the 
facts in discharge or avoidance are a direct and proper reply to 
an express charge or interrogatory of the bill, then the answer 
is evidence of those facts. Woodcock v. Bennett, 1 Cow. 74-1, note. 
And this distinction has also been adopted by our Supreme Court. 
Alexander v. ^Yill^ams, 10 Yer. 109; Goss v. Simpson, -4 Cold. 
288; ^Valter v. McNahh, 1 Heisk. 703. And fhis whether the 
response be by a direct denial or by a statement of facts by way 
of avoidance. HopTcins v. Spwfloch, 2 Heisk. 152. Some authori- 
ties are quoted as holding that where a defendant, in response to 
the bill, once admits liability, there is no escape except by proof 
of the matters of discharge or avoidance. Dyre v. Sturgess, 3 
Des. 553 ; Paynes v. Coles, 1 Munf . 395 ; Fisler v. Porcli, 2 Stock. 
248. It is probable, however, that a careful analysis of the cases 
would show that the rule is substantially the same everywhere, 
but its application is varied by the particular facts of the several 
cases. 

A qualification of the general rule is, that where the transaction 
is a continuous one, and the matters of charge and discharge occur 
at the same time, the whole statement must be taken together. 
'Robinson v. Scotney, 19 Ves. 582 ; Lady Ormond v. Hutchinson, 
13 Ves. 50; Thompson v. Lamhe, 7 Ves. 588. The qualification 
is more broadly stated under the English practice in 2 Dan. Ch. 
Pr. 835, thus : "Where a plaintiff chooses to read a passage from 
the defendant's answer, he reads all the circumstances stated in 
the passage. If the passage so read contains a reference to any 
other passage, that other passage must be read also." Bartlett v. 
Gillard, 3 Euss. 157; Nurse v. Bunn, 5 Sim. 225. The old de- 



Beech v. Haynes 231 

cisions went so far as to hold that a discharge in the same sentx^nce 
with the charge woukl be evidence (be<3ause the whole context must 
be read), when it would not have been if stated separately. Ridge- 
way V. Darwin, T Yes. 404; TJioinpson v. Lanihe, 7 Ves. 588. The 
consequence of which was, as siated by Mr. Gresley in his work 
on Evidence in Equity, p. 15, that formerly much of the skill re- 
quired in drawing an answer consisted in uniting by connecting 
pai-ticles important points of the defendant's ease with admis- 
sions that could not be withheld. The answer in the case now 
before me seems framed on these old cases. But the modem de- 
cisions are governed by the sounder rule of being contrx)lled by 
the sense instead of the contiguity or grammatical structure of the 
sentences. Passages connected in meaning may be read together 
from distinct parts of the answer. Rude v. Whitechurcli, 3 Sim. 
563. And, on the other hand, if the matter in avoidance has been 
skilfully interwoven into the senten;ce6 containing responsive ad- 
missions, the complainant w411 be entitled to have the matter of 
avoidance considered as struck out. McCoy v. Rhodes, 11 How. 
U. S. 131; Baker v. Williamson, 4 Penn St. 467; 3 Greenlf. Ev. 
§ 281. 

The rule, it will be noted, which considers an admission as bind- 
ing, and as throwing upon the defendant the burden of proving 
the matter of avoidance, applies only to admissions wliich are 
responsive to or go to support the charges of the bill. The reason 
is, that otherwise the matter of admission would not be in issue, 
and if tlie complainant reads it, he reads it as evidence, not as 
pleading, and must read the whole; and no relief can ordinarily 
be granted upon it except by conceding the facts to be as stated in 
connection with the admission. Neal v. Robinson, 8 Hum. 438; 
MuUoy V. Young, 10 Hum. 298; Jameson v. Shelby, 2 Hum. 201; 
Ruse V. Mynatt, 7 Yer. 30. 

The matter in avoidance or discharge, if in resjwnse to a direct 
charge, is, as we have seen, evidence in favor of the defendant. 
Smith V. Clark, 4 Paige, 373. But it seems that a statement of 
the answer expressly waived or not called for, is not responsive, 
and not evidence. Jones v. Best, 2 Gill. 106. Tliis limitation 
may be important in the present case, for the bill expressly calls 
upoii the defendant to declare "when, where and from whom he 
purchased cotton for the complainants, and when, where and to 



232 Answek 

whom he said it/' and adds : "The discovery which complainants 
seek is confined exclusively to these points." 

The bill is filed for the purpose of charging the defendant with 
cotton bought by him with certain moneys of the complainants 
acting as their agent, and with the proceeds of the sales of such 
cotton. The answer admits the receipt of the money, the purchase 
of cotton, and the sale thereof as complainant's agent, and dis- 
closes "when, where and from whom the defendant purchased cotton 
for the complainants, and when, where a^nd to whom he sold it." 
The answer states the amount of cotton bought, but adds that at 
least one-fourth was lost by stealage or otherwise. It also states the 
prices at which the cotton was sold, and adds "that out of the pro- 
ceeds of sale, the expenses of keeping, carr^'ing to market, and 
selling the cotton, and a large government tax, contained in an 
itemized schedule (annexed to the answers) were paid." The an- 
swer is replied to under our practice, and there is no proof. 

The answer admits the contract as alleged in the bill, and the 
purchase and sale of cotton as agent, but states, in avoidance, that 
the cotton was to be bought in the Confederate lines, the contract 
having been made in the Federal lines. The matter in avoidance 
is clearly not evidence under any of the recognized rules and must 
be proved. 

In this state of the case and the pleadings, if there were nothing 
more, it is clear that the complainant would be entitled to a decree 
reciting the contract, and the fact that the defendant had bought 
and sold cotton under it, and to a reference to the master to take 
and state an account between the parties, in which he should charge 
the defendant with all cotton which was purchased with the defend- 
ant's money, and with the proceeds of such of the cotton as may 
have been sold by him, allowing him all just credits in the way of 
loss of cotton without fault on his part, and all proper disburse- 
ments in the care, preservation and disposition of the cotton. Tlie 
complainants are not compelled, either at the hearing or upon the 
reference to read any part of the answer as evidence of the amount 
of cotton bought or sold, and the defendant himself could only 
read such parts of the answer as are responsive to the charges 
and interrogatories of the bill, under the rules as hereinbefore set 
forth. But the complainants claim now, upon the hearing, to use 
against the defendants his admissions of charge without giving 
him the benefit of the matters of discharge. And the question 



Beech v. Haynes 233 

for consideration is, can this be done under the pleadings in this 
case? 

The general rule, as we have seen, is that the complainant may 
read any portion of the defendant's answer which goes to support 
the case made in the bill. Barilett v. Gale, 4 Paige, 507. The ad- 
missions which the complainants in this case propose to read do 
clearly support the case made in the bill. The defendant was not 
bound to make them, the discovery having been expressly waived; 
but having made them, the complainant may, if he chooses, rely 
upon them as fixing the defendant's liability. It is clear, also, that 
the discovery called for having been limited so as not to include 
the details, the defendant could not himself read any portion of the 
matters of discovery, either of charge or discharge, unless they are 
responsive to a direct charge or interrogatory of the bill. There is 
no interrogatory calling for such discovery, the interrogatories hav- 
ing been purposely limited. If, however, this part of the answer 
were directly and properly responsive to a positive charge of the 
bill, I think the defendant would have been entitled to read it, 
notwithstanding the limitation quoted from the bill. For that 
limitation, it is obvious, was not intended to prevent the defendant 
from answering the charging part of the bill, but merely to restrain 
the discovery, so far as it could be evidence for the defendant, to 
those charges. Smith v. Clark, 4 Paige, 373. Is there, then, any 
charge in the bill which calls for the details of the answer in dis- 
charge ? 

The bill does charge that the money received by defendant 
(which sum is admitted by the answer), invested at twenty-five 
cents per pound, the price paid as averred, would have purchased 
15,319 pounds, and adds: "Complainants are satisfied that ha 
(defendant) realized from the cotton nearly or quite fifty cents 
per pound net, and at least $7,500." If, now, the discovery had 
not been expressly limited, the answer stating the real amount of 
cotton bought and the net proceeds realized, would perhaps have 
been responsive under the qualification of the general rule, as ''a 
statement of facts by way of avoidance." Be this as it may, the 
express limitation of the discovery rendered anything more than 
a denial of the charges of the bill not responsive within the rule 
which permits the defendant to use responsive matter of avoidance 
as evidence in his favor. The complainant has the right so to limit 
his charges, and his calls for discover}- as to confine the responsive 



234 Answer 

part of the answer within a narrow compass, and this has been 
done in the present instance. 

The conclusion is that the complainants may insist upon the 
matters of charge in the defendant's answer without giving him 
the benefit of the matters of discharge. 

In the examination of the question discussed above, I think I 
have discovered the source of the strange dictum of our Supreme 
Court in Ragsdah v. Buford, 1 Hay. 194, that "in no case is an 
answer replied to evidence against the plaintiff," a dictum com- 
mented on by me in a note to that case in my edition of Haywood's 
Eeports. An answer, as we all know, performs a double office, and 
is both a pleading and a discovery. Sto. Eq. PI. § 850. This 
distinction was noted by Sir Samuel Eomilly, then Solicitor-Gen- 
eral, in his argument in the case of Lady Ormond v. Hutchinsan, 
13 Ves. 50. The complainant having relied upon an admission in 
the answer, the defendant seems to have insisted that the whole 
answer should be read. No, said the Solicitor-General; for, al- 
though the rules of evidence are the same in equity as at law, 
and, if you undertake to read an answer at law you must read 
the whole of it, yet, he adds: "WTien passages are read from 
an answer [at the hearing in Chancery] which is replied to, it 
is not produced as evidence, but to show what he has admitted, 
as to which, therefore, it is unnecessary to produce evidence; as 
to the rest, the plaintiff, having replied to the answer, puts him 
on proof. Upon a bill for discovery only, the answer being 
produced as evidence, the whole of it must be read, not a part 
only." This distinction was approved by the Lord Ch. (Erskine) 
in his opinion in that case. Chancellor Kent in commenting on 
this language in Hart v. Ten Eyck, 2 J. Ch. 91, says: "It was 
said that when passages are read from an answer which is 
replied to, and is not an answer to a mere bill of discovery, they 
are not read as evidence, in the technical sense, but to show what 
the defendant has admitted and which, therefore, need not be 
proved." It is impossible to place the language of the Chancellor 
and Solicitor-General in juxtaposition with that of our Supreme 
Court above referred to, without seeing that the only object of the 
latter was to call attention to this distinction. For, they add, 
following the lead of Sir Samuel Eomilly, "the answer which 
cannot be replied to is evidence for the defendant. That is the 
case of an answer to a bill for discovery." The language is not 



BnooKs V. Byam 235 

as accurate as that of Ch. Kent, but was ineaiit to convey the same 
idea, namely, that an answer on a hearing in equity is not evidence, 
in a technical sense. And, it is obvious, that the court had no in- 
tention to lay down general principles in conflict with their own 
positive rulings, and that the compilers of our Digests have erred 
in carrying the words into their Digest as absolute rulings. 

In like manner, what the court say in the same case about the 
bill is strictly accurate when the intention with which it is made is 
kept in view. "jSFeither, they say, is more verity attributable to 
a bill sworn to than to one which is not so. The oath of the plaint- 
iff is required ad informandum conscientiam curice, not for the 
purpose of making it evidence against his adversary who denies it."' 
Neither the bill nor the answer is evidence, in a technical sense, on 
the hearing of a cause in chancery, nor is either allowed to be read 
in extenso under the English practice. The plaintiff only reads 
such part of the answer as he relies on to support his case as admis- 
sions, and the defendant reads such part of the bill he relies on as 
admissions. We read the pleadings, ad informandum conscientiam 
curia, in lieu of the preliminary statement of counsel required in 
England. 2 Dan. Ch. Pr. 996. 




Exceptions to Answer, 

Brools V. Byam, 1 Story, 296. 

Bill in equity. Tlie bill in this case states, that one Alonzo D. 
Phillips obtained letters patent for the making of friction matches ; 
that he sold six rights therein, that is, the right to employ six per- 
sons at the same time, in the manufacture of the said matches, to 
one John Brown ; and that Brown sold one such right to the plaint- 
iff; but that the deeds of conveyance, both to Brown and the 
plaintiff, were not recorded in the Patent Office, as the law requires. 
It also states, that the defendants, claiming to be the sole assignees 
of Phillips, by a deed of conveyance from him to Byam, and from 
Byam to the other defendants, but of later date than the deed to 
the plaintiff, had commenced a suit against him, in the Circuit 
Court of the United States, for Massachusetts District, for an 
alleged invasion of their said right; the plaintiff averring, that he 



336 Exceptions to Answer 

has done nothing therein not granted to him by the deeds from 
Phillips to Brown, and from Brown to him. 

It then i^roceeds to state, that at the time of the assignment from 
Phillips to Byam, and before delivery of the deed, "the said Byam 
was informed, and well knew, or had good cause to believe, that 
the said Phillips had previously conveyed to the said John Brown 
the right before mentioned, as set forth to have been so assigned 
and conveyed; and that the said Brown had previously conveyed 
to the plaintiff the right herein before set forth, and alleged to 
have been so assigned and conveyed; and that the said Byam had 
previously caused inquiry to be made, whether the said several 
instruments of conveyance and assignment to the said Brown and 
Brooks had been recorded." It then proceeds to allege the same 
knowledge or belief, in like terms, by the other defendants, at the 
time of the conveyance of their rights from Byam. 

Prentiss Whitne}^, one of the defendants, whose answer is ex- 
cepted to, says, that he "does not of his own knowledge know," 
whether Byam had any information, knowledge, or "any cause to 
believe" the facts above stated; but that he "has been informed 
by said Byam, that at the time when" (&c.), "the said Byam had 
no knowledge, information, or cause to believe, that said Phillips 
had made any conve^-ance to said Brown" (&c.), "and this defend- 
ant has no knowledge, information, or belief, that the information 
so derived from said Byam is not true." He then proceeds to say, 
that 'Tie has been informed by said Byam, and verily believes, that 
he did not make any inquiry," whether Brown's and the plaintiff's 
were recorded, as stated in the bill. 

The plaintiff filed the following exception to the answer : 

"The plaintiff excepts to the answer of Prentiss Whitney, one 
of the defendants in this case, because, in stating in the said an- 
swer, what lie has been informed of by the said Byam, he does 
not say, whether he actually believes the same to be true. And he 
prays, that the said Whitney may be required to put in a better 
answer in that particular. By his Solicitor, S. Greenleaf." 

Story, J.: 

The question arising, in this case, is upon the exception taken 
by the plaintiff in equity, to the answer of Prentiss Whitney, one 
of the defendants, because, in stating in his answer, what he has 
been informed of by Byam (another defendant), he does not say, 



Brooks v. Byam 237 

whether he a<jlually believes the same to be true." Certainly, this 
exception is taken in a form and manner entirely too general, to 
be upheld by the Court. The exception should have stated the 
charges in the bill, and the interrogatory a2)plieable thereto, to 
which the answer is addressed, and then have stated the terms of 
the answer verbatim, so that the Court, without searching the bill 
and answer througbout, might at once have perceived the ground 
of the exception, and ascertained its sufficiency. It is very properly 
observed by the Vice Chancellor (Sir John Leach) in Hodgson v. 
Butterfield, 2 Sim. & Stu. ^36, that "if the plaintiff complains, 
that a particular interrogatory of the bill is not answered, he must 
fctate the interrogatory in the very terms of it, and cannot impose 
upon the Court the trouble of first determining, whether the varied 
expressions of the interrogatory and the exception are to be recon- 
ciled."^ To wliich it may be added, that the same rule applies in 
respect to the necessity of stating the charge or fact in the bill, on 
which the interrogator}' is founded; for, if the interrogatory be 
irrelevant to the matters charged in the bill, the defendant need 
not answer the interrogatory at all.^ The Court ought, therefore, 
witbout searching through the whole bill, from the form of the 
exception, to have the materials fully before it, by which to ascer- 
tain at once its competency and propriety. In this respect the 
exception is in itself insufficient and exceptionable. The objection, 
however, has not been insisted upon at the bar. 

Nothing is more clear in principle, than the rule, that in the 
case of an interrogatory, pertinent to a charge in the bill, requiring 
the defendant to answer it "as to his knowledge, remembra^nce, 
information and belief" (which is the usual formulary), it is not 
sufficient for the defendant to answer as to his knowledge; but he 
must answer also, as to his infonnation and belief. The plain 
reason is, that the admission may be of use to the plaintiff as proof, 
if the defendant should answer as to his behef in the affirmative, 
without qualification. Tlius, although a defendant should state, 
that he has no knowledge of the fact charged, if he should also 
state, that he has been informed and believes it to be true, or 
simply, that he believes it to l)e true, without adding any qualifica- 

^See also Gresley on Evid. 2i. 

=Mitford Eq. PI. by Jeremy, 45; Cooper Eq. PI. 12; Gilh. For. Roman. 
91. 218; Story on Equity Plead. §36; Gresley on Evid. 17 to 20, Am. edit. 
1S37: Story on Equity Plead. §853; Harrison Ch. Pract. by Newland, 
ch. 31, p. 181. 



238 Exceptions to Answer 

tion thereto, such as that he does not know of it of his own knowl- 
edge to be so, and therefore, he does not admit the same, it would 
be taken by the Court, as a fact admitted or proved; for the rule 
in equity generally (although not universally) is, that what the 
defendant believes, the Court will believe.^ The rule might, per- 
haps, be more exactly stated, as to its real foundation, by saying, 
that whatever allegation of fact the defendant does not choose 
directly to deny, but states his belief thereof, amounts to an admis- 
sion on his part of its truth, or, that he does not mean to put it 
in issue, as a matter of controversy in the cause. But a mere state- 
ment by the defendant in his answer, that he has no knowledge, 
that the fact is, as stated, without any answer, as to his belief 
concerning it, will not be such an admission, as can be received as 
evidence of the fact.^ Such an answer is insufficient; and, there- 
fore, the defect properly constitutes a matter of exception thereto, 
since it deprives the plaintiff of the benefit of an admission to 
which he is justly entitled.^ However; Courts of Equity do not, 
in this respect, act with rigid and technical exactness, as to the 
manner, in which the defendant states his belief, or disbelief, if it 
can be fairly gathered from the whole of that part of the answer, 
what is, according to the intention of the defendant, the fair result 
of its allegations.* 

It is obvious, that in answers as to the information and belief of 
the defendant, there may be, and indeed, ordinarily will be, partial 
admissions and partial denials, of every shade and character, some 
of which may be delivered in terms of great ambiguity and uncer- 
tainty, and some mixed up with various qualifications, and at- 
tendant circumstances.^ No general rule, therefore, can be laid 
down, which will govern all the different classes of cases, which 
may thus arise, as to the sufficiency or insufficiency of an answer 
in this respect. A man may have an undoubting belief of a fact, 
or he may disbelieve its existence, or he may believe it highly 
probable, or merely probable, or the contrary, or he may have no 
belief whatsoever, as to it. In each, of these cases, he is bound to 

^2 Danicll Chan. Prac. 257; Id. 402; Gresley on Evid. 19, 20; Potter v. 
Potter ( I Vcs. 274) ; Carth v. Jackson (6 Ves. 2i7, 38) ', Story on Eq. 
Plead. §854. 

-2 Daniell Ch. Pr. 257; Id. 402; Coop. Eq. PI. 314; Harris. Ch. Pract. 
by Newl. ch. 31, p. 181. 

nbid. 

*2 Daniell Ch. Prac. 257; Amhurst v. Kin^ (2 Sim. & Stu. 183). 

f^Gresley on Evid. 2d edit. 1837. 



Brooks v. Byam 239 

answer conscientiously, as to the state of his mind, in the matter 
of his belief; and if he does, that is all, which a Court of Equity 
will require of him. If a man truly states, that he cannot form 
any belief at all respecting the truth of the fact or information, 
that is sufficient, and it puts the plaintiff upon proof of it. If, on 
the other hand, the defendant should state (as in the present ciase 
the defendant does in effect state), that he "has no knowledge, in- 
formation, or belief, that the fact or information inquired about, 
is not true," or if he states (as in the present case), that he has 
been informed by a party, and verily believes, that such party did 
not possess any knowledge, information, or belief of the fact, which 
the interrogatory points out; in each of these cases, it seems to 
me, that the answer, if expressive of the true state of mind of the 
defendant, might at least, for some purposes, be held sufficient. 
But, then, if such language were unaccompanied by any other 
qualifications, or explanations, I should understand, that the de- 
fendant did mean to assert his belief of the truth of the informa- 
tion or statement of fact, because, if he had no knowledge, in- 
formation, or belief, that it is not true, he must be presumed to 
give credit to it; and if he did not intend so to be understood, 
it would be his duty to say in express terms, that he had no belief 
about the matter ; and he ought not to be allowed to shelter himself 
behind equivocal, or evasive, or doubtful terms, and thereby to mis- 
lead the plaintiff to his injury. And this leads me to remark, and 
it is the real and only point of difficulty, which I have felt upon 
the exception, whether, although the plaintiff may agree to take 
and accept such an admission, interpreting it as affirmative of the 
defendant's telief, if in that sense it would be beneficial to himself, 
he is positively bound to receive it, when it is clearly susceptible of 
a different, or even of an opposite interpretation, which may affect 
the nature and extent of his proofs at the hearing of the cause. 
Uj)on full reflection, I think, that he is not positively bound to 
receive it, although certainly I should interpret it as an affinnative, 
if it would be favoral)le for the plaintiff; but he has a right to 
require, that the defendant should state in direct terms, or, at 
least, in unequivocal terms, either that he does believe, or that he 
does not believe the matter inquired of, or that he cannot form 
any belief, or has not any belief concerning the matter, and ac- 
cording as the answer shall be the one way or the other, that he 



240 Exceptions to Answer 

calls uiDon the plaintiff for proof thereof, or he admits it, or he 
waives any controversy about it. 

Upon this ground my opinion is, that the exception is well 
founded, at least, as to some of the allegations in the answer. It 
may, perhaps, be sufficient for the Court merely in this general 
manner to intimate its present opinion upon the case; and it will 
be easy for the counsel to make its application to the various parts 
of the answer comi)lained of. But to make myself more clearly 
understood, I wish to give an illustration of the principle, drawn 
from the present bill and answer, especially as the nature of the 
objection may thereby be seen in a more strong and exact light. 

The object of the bill is to obtain, among other things, a per- 
petual injunction to a suit now pending, on the Law side of this 
Court, brought by the defendants in the bill (Byam and others) 
against the plaintiff (Brooks), for violation of a patent, which 
they claim title to, as assignees of the patentee ; and, among other 
charges, the bill for this purj^ose alleges, that the original patentee 
(Alonzo D. Phillips) had before his assignment to these parties 
assigned a limited right therein to one John Brown, under whom 
the defendant claims a still more limited title, as a sub-purchaser 
pro tanto, and insists that his acts done in supposed violation of 
the patent, are rightfully done under this sub-title. The patent is 
alleged to bear date on the 2-ith of October, 1837 ; the assignment 
to Brown, on the 2d of January, 1837; the assignment to Brooks, 
on the 18th of September, 1837; but it was not recorded until the 
15th of July, 1839; and the assignment to Byam, on the 38th day 
of July, 1838, under whom the other defendants (Whitney and 
others) derive title, which was only recorded within the time pre- 
scribed by law, whereas the assignment to Brown was not. Under 
these circumstances the bill charges, that Byam at the time of the 
assignment to him and the other defendants (and, among them, 
Whitney) at the time of the assignment to them by Byam, had 
knowledge and information, and good cause of belief of the prior 
assignment to Brown. And in the interrogatory part of the bill 
the defendants are required "full, true, direct, particular, and per- 
fect answer and discovery to make, and that not only according 
to the best of their knowledge, but to the best of their respective 
information, hearsay, and belief, to all and singular the matters 
and allegations and charges aforesaid." 

Now, the answer of the defendant, Wliitney (which is cxcept<>d 



Brooks v. Byam 241 

to), states, that he (the defendant) does not of his own knowledge 
know, whether, at the time of the assignment to Byam, he (Byam) 
had any information, or knowledge, or had any cause to believe, 
that Phillips had previously made any conveyance to Brown, or 
Brown to the plaintiff (Brooks) as alleged in the bill; but this 
defendant has been informed by said Byam, that at the time, when 
the said Phillips conveyed and assigned to him all his right and 
interest in and to the patent right, the said Byam had no knowl- 
edge, information, or cause to believe, that the said Phillips had 
made any conveyance to the said Brown, or that the said Brown 
had made any conveyance to the complainant ; and this defendant 
has no knowledge, information, or belief, that the information so 
derived from the said Byam is not true. Now, it is to the matter 
and form of this last clause (and a like allegation is to be found in 
other parts of the answer), that the objection is taken by the ex- 
ception. The argument is, that the clause is ambiguous; that it 
does not assert, in direct terms, that the defendant believed or 
disbelieved the statement of Byam ; or that the defendant had no 
belief, or was unable to form any belief about the matter, and, 
therefore, required the plaintiff to prove the knowledge, informa- 
tion, or belief of Byam at the time of the assignment to him. So 
that, in fact, the defendant, by the form of his allegation, does 
not positively put the asserted fact in controversy, as to the knowl- 
edge, information, or belief of Byam, by affirming his own belief 
of Byam's statement; neither does he dispense with the proof 
thereof, by denying his ow^n belief thereof ; neither does he assert, 
that he is unable to form any belief upon the subject, and therefore 
calls for proof of the allegation of the bill on this point; but he 
leaves the matter in a state of am'biguity and open to different 
interpretations, as to the true intent and meaning of the answer. 
It appears to me, that in this view the exception is well founded. 
When the defendant says, that he "Tias no knowledge, information, 
or belief, that the information so derived from the said Byam is 
not true," he merely pronounces a negative, which may, indeed, 
in some sort amount to a negative pregnant, arguendo, that, as he 
has no information or belief, that it is not true, therefore he be- 
lieves it to be true, which would certainly be a natural, although 
not an irresistible presumption. But it seems to me, that the 
plaintiff has a right to more than this; to know, whether the 
defendant himself has placed confidence in the statement or not, 

16 



242 Exceptions to Answer 

or whether his mind haugs in dubio, and he is unable to form any 
belief either way. In the latter case, certainly, less evidence would 
be necessary to infer presumptively the knowledge, information, 
or belief of Byam himself, than if the defendant himself believed 
Byam's statement, and acted upon that belief; for a Court is not 
bound, in favor of a defendant, to have a more confident belief 
in a party, than the defendant himself professes to have. But 
what I rely on is, that the defendant, by such a form of answer, 
leaves it entirely equivocal, whether he believes, or is unable to 
form any belief ; and the plaintiff has a right to know positively, 
which of the two is his real predicament. 

The exception, therefore, on this jDoint, ought to be allowed. 



Stafford v. Brown, Jf Paige Ch. (N. Y.) 88. (1833.) 

This case came before the court upon exceptions to the master's 
report allowing certain exceptions to the defendants' answer. 

The Chancellor: 

The question which arises upon the five first exceptions allowed 
by the master, is, whether there are any allegations or interroga- 
tories in the complainant's bill to authorize him to call upon the 
defendants to answer the several matters of those exceptions. In 
the case of V/liitmarsli v. Morris & Camphell, and in some other 
cases, none of which have been reported, this court decided that 
exceptions to an answer for insufficiency could not be sustained, 
unless there was some material allegation, charge or interrogatory 
contained in the bill, which was not fully answered. That where 
new matter, not responsive to the bill, was stated in the answer, 
if such matter was wholly irrelevant and formed no sufficient 
ground of defence, the complainant might except to the answer 
for impertinence, or might raise the objection at the hearing. All 
the writers on the subject of equity pleading, lay down the prin- 
ciple, distinctly, that exceptions for insufficiency are founded upon 
the supposition that some material allegation, charge or interroga- 
tory in the complainant's bill, is not fully answered. In Lord 
Redesdale's Treatise it is said, that if the complainant conceives 
an answer to be insufficient to the charges contained in the bill, 
he may take exceptions to it, stating such parts of the bill as he 



Stafford v. Brown 243 

conceives are not answered, and praying that the defendant may 
in such respects put in a full answer to the bill. (Mitf. PL 4 Lond. 
cd. 315.)* Cooper says, the exceptions for insufficiency are to 
l)e in writing, stating the parts of the bill which the complainant 
alleges are not answered. (Cooper's PI. 319.) Xewland also says, 
that exceptions for insufficiency are allegations in writing, stating 
the particular points or matters in the bill which the defendant 
has not sufficiently answered. (1 Newl. I'r. 3 Lond. ed. 259.) 
And Lube, in his analysis of the principles of equity pleading, 
says the exception must state the precise points in the bill un- 
answered, or which are imperfectly answered. (Lube's Eq. PL 
87.) Although it may not be necessary in the exception to state 
the precise words of the allegation, charge or interrogatory in the 
bill, which is not fully answered, yet the substance at least must be 
stated; so that by referring to the bill alone, in connection with 
the exception, the court may see that the peculiar matters to which 
a further answer is sought, are stated in the bill, or that such an 
answer is called for by the interrogatories. (See Hodgson v. But- 
tcrp.cld, 2 Sim. & Stu. 23G.) As the general denial of all the 
matters of the bill not before answered, with which the answer 
usually concludes, is sufficient as a pleading to put the several 
matters of the bill in issue, the principal object of the exceptions 
for insufficiency is to examine the defendant on oath, for the pur- 
pose of discovery merely. For this purpose the complainant may 
even anticipate the defence of the defendant, and may obtain a 

*An insufficient answer, is no answer. (M'Laughlin's Adm'r v. Daniel, 
8 Dana, 184.) [Vide 8 Ves. 87; Story's Eq. PI. 465, 469, 646, 647, 648, 649.] 
It has been held that an answer clearly evasive on its face, and no reason 
assigned, should be considered a contempt of court. (lb.) [I'idc 14 Ves. 
415.] Where an answer is believed to be designedly defective, for the pur- 
pose of imposing on the plaintiff the burthen of proving what the defend- 
ant is, in conscience, bound to admit, the proper course is to except to the 
answer, and compel the defendant to put in a complete one. {Luini v. 
Jolmson. 3 Iredell's Eq. Rep. 70.) An exception to an answer for insuffi- 
ciency, should state the charges in the bill, the interrogatory applicable 
thereto, to which the answer is responsive, and the terms of the answer 
verbatim. (Brooks v. Byam. i Story's Rep. 297.) Exceptions to an an- 
swer do not lie for irregularities in the practice. (Vcrmilyea v. Christie, 
4 Sandf. Ch. Rep. 376.) By excepting for insufficiency, the complainant 
necessarily assumes that the answer is valid, and properly before the court, 
(lb.) The verification of an answer taken abroad, it was alleged, was not 
properly authenticated, whereupon the complainant excepted to certain 
portions of the answer for insufficiency, relying solely upon its being no 
answer, by reason of the defect in its verification. Held, that he had mis- 
taken his remedy, which was by moving to take it from the files of the 
court. (lb.) 



24J: Exceptions to Answer 

discovery of matters connected with sucli defence, which are in 
nowise responsive to the main charges in the bill upon which the 
complainant's equity is supposed to rest. The proper method of 
obtaining such discovery, however, is not by exceptions for in- 
sufficiency founded upon the answer alone, but by framing the 
bill in such a manner as to call for all the particulars of the defence 
which it is supposed the defendant will set up. This is effected by 
what is usually called the charging part of the bill, in which the 
anticipated defence is stated as a pretence of the defendant, sup- 
ported by proper charges and interrogatories founded upon such 
alleged pretence. In this way the complainant is not only enabled 
to anticipate the defence itself, by putting other matters in issue 
which will have the effect to displace the equity thereof, but he 
is also enabled to examine the defendant on interrogatories in 
relation to all the particulars of such defence. (Mitford, 43; 
Lube's Eq. PL 241, 268.) By an amendment of the bill the 
complainant may generally effect the same object, even after the 
defendant has put in an answer setting up such defence. 

In the case under consideration the complainant, in his bill, 
has stated the recovery of a judgment against the defendant E. 
Brown, on which an execution has been returned unsatisfied. But 
as he has left the question of present indebtedness to be presumed, 
as an inference of law arising from the facts thus stated, the 
defendants were not called upon to do more than to admit the facts 
as stated in the bill. The admission, however, did not preclude 
them from rebutting this legal presumption of indebtedness by 
setting up, as a distinct matter of defence, the payment of the 
judgment either wholly or in part. But as this part of the answer 
was not called for by the bill and was not responsive to anything 
contained therein, it would be no evidence in favor of the defend- 
ants unless established by proof. If the complainant had stated 
in the bill that the defendants pretended that E. Brown had paid 
the whole or part of the judgment, and charged that such pretence 
was unfounded, he might in the interogatory part of the bill, have 
called for all the particulars as to the time, place, amount and 
manner of such pretended payment. But in that case the answer 
would have been evidence in favor of the defendants, as to the 
matters they were thus called upon to answer. Nothing should 
be permitted to remain in an answer, which is neither called for 
by the bill, nor material to the defence or with reference to any 



Stafford v. Brown 245 

decree or order which may be made in the cause. But the proper 
mode of maJving the objection to any such immaterial statement 
with a view to have it expunged, is by excepting to the answer 
for impertinence. 

As the whole of the discovery called for by the five first excep- 
tions allowed by the master, was founded upon new matters set 
up by the defendants in their answer, by way of defence, those 
exceptions should have been disallowed. 

The matters of the ninth, twelfth and thirteenth exceptions, are 
fully answered, so far as any foundation was laid for those excep- 
tions by the allegations in the bill; and so far as the exceptions 
went beyond the bill they were inadmissible. So much of the 
master's report as was excepted to by the defendants, must therefore 
be overruled, with costs. And if the complainant does not think 
proper to amend his bill within ten days, as authorized by the 
190th rule of this court, the defendants must answer the matters 
of the eighth, tenth and eleventh exceptions within the time 
specified in the report of the master. 



V 




CHAPTER VII. 

FUETHER PROCEEDIXGS OX PART OF PLAINTIFF. 

Replication. 

Mason v. Hartford By. Co., 10 Fed. Rep. 334. (1882.) 

lu Equity. Decision upon defendants' motions to strike replica- 
tions from the files, and to dismiss bill of revivor, and upon com- 
plainants' motion to withdraw replications, and amend bill of 
revivor. 

Colt, D. J. : 

In this cause a bill of revivor was filed August 1-i, 1880, by the 
alleged administrators and trustees of Earl P. Mason, the original 
complainant. To this bill one of the defendants, William T. Hart, 
put in a plea, setting up that it did not appear by said bill of 
revivor that the plaintiffs named therein had ever been appointed 
administrators of said estate by any court of competent jurisdiction 
in the state of Massachusetts, and that therefore the plaintiffs had 
no right to file said bill, that the court had no jurisdiction thereof, 
and praying that the bill might be dismissed. The New York & 
New England Railroad Company, another defendant, demurred 
to the bill upon this as well as other grounds. To this plea and 
demurrer the complainants in the bill of revivor filed separate 
replications, setting out, among other things, that since the filing 
of the plea and demurrer they had been appointed administrators 
of the estate of the said Earl P. Mason in the state of Massa- 
chusetts. 

The defendant William T. Hart now moves — First, that the 
replication to his plea be stricken from the files, because it is 
special, and sets up new matter, and matter accruing after the 
filing of the bill of revivor; and, second, that the bill of revivor 
be dismissed, because the complainants have not taken issue on 
the plea, nor set the same down to be argued, though the same has 
been filed more than a year. 

The New York & New England Railroad Company also move 

246 



Mason v. Hartford Ey. Co. 247 

that the replication to the demurrer be stricken from the files, 
and that the bill of revivor l;e dismissed, because the complainants 
have not set the demurrer down for argument, though filed over 
one 3'ear before. 

It is apparent that the replications here filed are special, setting 
up new matter, and matter accruing since the filing of the bill of 
revivor; therefore they are irregular. By equity rule 45, of the 
United States court, "no special replication to any answer shall be 
filed." 

In Vattier v. Hinde, 7 Pet. 252, 274, the supreme court declare 
that no special replication can l3e filed except by leave of the court ; 
holding it to be contrary to the rules of a court of chancery for the 
plaintiff to set up new matter necessary to his case by way of repli- 
cation ; that omissions in a bill cannot be supplied by averments in 
the replication; and that a plaintiff cannot be allowed to make out 
a new case in his replication. This is equally true whether it is an 
answer or plea that is replied to. See Daniell Ch. PL & Pr. (4th 
Ed.) 828, note 1. "Matters in avoidance of a plea, which have 
arisen since the suit began, are properly set up by a supplemental 
bill, not by a special replication"; citing Chouteau v. Rice, 1 Minn. 
lOG. In Mitford & Tyler, PI. & Pr. in Eq. 412, 413, we find, 
"special replications, with all their consequences, are now out of 
use, and the plaintiff is to be relieved according to the form of the 
bill, whatever now matters have been introduced by the defendant's 
plea or answer." The replications to the plea and demurrer can- 
not be sustained. 

The second motion of the defendants, that the bill of revivor be 
dismissed, is based upon equity rule 38, which provides that if the 
plaintiff shall not reply to any plea, or set down any plea or de- 
murrer for argument, on the rule-day when the same is filed, or on 
the next succeeding rule-day, he shall be deemed to admit the truth 
and sufficiency thereof, and his bill shall be dismissed as of course, 
unless a judge of the court shall allow him further time for the 
purpose. 

It appears in this case that the bill of revivor was filed August 
14, 1880; the plea and demurrer, September 6, 1880; the repli- 
cations, July 30, 1881; and that soon after (August 4th) the 
plaintiffs' counsel asked the court to fix a day for the argument. 
It further appears that after the filing of the plea and demurrer, 
September G, 1880, a stipulation was entered into by counsel upon. 



248 Eeplication 

both sides extending the time for hearing to the November rule- 
day, 1880, meantime the complainants to be allowed to file proper 
pleadings in reply to said plea and demurrer. By further written 
arguments between counsel the postponement provided for by this 
stipulation was extended monthly until February, 1881. Then 
we find a further stipulation as follows : 

"It is hereby agreed that no movement on either side shall be 
made "in this cause until May, 1881, without prejudice to com- 
plainants' right to file evidence of appointment as administrators 
in Boston." 

By the affidavit of Mr. Payne, one of complainants' counsel, it 
appears that in October or November, 1880, Mr. Lothrop, one of 
defendants' counsel, stated, in effect, that while he would sign the 
stipulation, the complainants' counsel might take their own time 
about bringing the case to a hearing. 

In the light of all these circumstances it is fair to presume that 
complainants' counsel understood that any rigid enforcement of the 
rule now invoked had been waived, impliedly by acts and conduct, 
if not in express terms; and we are of this opinion. 

Considering the repeated postponements which had taken place, 
for the mutual accommodation of both sides, so far as appears, the 
language used by defendants' counsel as to time of hearing; and 
bearing also in mind that the replications were filed within three 
months after May, 1881; and that within a week thereafter the 
plaintiffs moved the court to set a time for hearing, — it would, we 
think, be inequitable to allow the defendants' motion to dismiss to 
prevail. Indirectly, as bearing on this question of laches, reference 
is made to the fact that the original bill in this case was brought in 
1871, the answer filed in 1873, the replication not put in until 
1875; also, that the original complainant died in 1876, and that 
the bill of revivor was not brought until 1880. In answer to this 
charge, the complainants say that the delay has been owing to the 
pendency of another suit in the state court of Rhode Island, 
the determination of whicli might affect the prosecution of this 
suit, and that, consequently, the delay was acquiesced in by both 
sides. They further state that within a short time after the final 
decision by tlic Ehode Island state court the bill of revivor was 
filed, and that they are now anxious to speed the cause. Under 
these circumstances, and in tbe absence of any motion on the part 
of the defendants to speed the cause, we do not see how the charge 



Mason v. Hartford Ry. Co. 249 

of laches can be seriously pressed; at last, so far as the prcsunt 
motion is concerned. 

Tlie complainants, in the event of their replications being held 
to be bad, ask leave to withdraw them, and to amend their bill of 
revivor by inserting, among other things, the fact that they were 
on the twenty-fifth day of July, 1881, by the court of probate for 
the district of Suffolk, in the state of Massachusetts, duly appointed 
administrators of the estate of Earl P. Mason. The defendants 
object, upon the ground that this is new matter, accruing since the 
filing of the bill, which cannot be set up by amendment, but only 
by supplemental bill. It is true that events which have happened 
since the filing of a bill cannot be introduced by way of amend- 
ment, and that as a general rule they may be set out by supple- 
mental bill. Equity Rule 57, U. S. Court. 

In Daniell, Ch. PL & Pr. (-Ith Ed.) 1515, note 1, we find "an 
original bill cannot be amended by incorporating anything therein 
wliich arose subsequently to the commencement of the suit. This 
should be stated in a supplemental bill." And again, on page 828, 
note 1 (already cited), it is laid down that matters in avoidance 
of a plea, which have arisen since the suit began, are properly set 
out by a supplemental bill. Mitford & Tyler, PI. & Pr. in Eq. 
159; Story Eq. PL § 880. But in this case it is difficult to see 
how a supplemental bill can be brought. This bill of revivor has 
not become defective from any event happening after it was filed. 
But originally, when it was brought, it was wholly defective; for 
the fact that the plaintiffs were appointed administrators by the 
proper court in Massachusetts was necessary to its maintenance. 
Melius V. Thompson, 1 Clif. 125. And yet this event happened, 
as the record discloses, nearly a year after it was brought. If the 
bill is wholly defective, and there is no ground for proceeding upon 
it, it cannot be sustained by filing a supplemental bill, founded 
upon matters which have subsequently taken place. Candler v. 
Petm, 1 Paige Ch. 168. 

In Pinch v. Anthony, 10 Allen, 471, 477, the court observe : 

'^e have found no authority that goes so far as to authorize a 
party, who has no cause of action at the time of filing his original 
bill, to file a supplemental bill in order to maintain his suit upon 
a cause of action that accrued after the original bill was filed, even 
though it arose out of the same transaction that was the subject 
of the original bill." Daniell Ch. PL & Pr. (4th Ed.) 1515, note. 



350 Eeplicatiok 

We are of the opinion that this new matter cannot be incor- 
porated in the bill of revivor by amendment, nor introduced in 
a supplemental bill, and that the proper cause for the complainants 
to pursue is to bring a new bill of revivor. 

(1) The defendants' motion to strike from the files complain- 
ants' replications to plea and demurrer is granted. (3) The 
defendants' motion to dismiss bill of revivor is denied. (3) The 
complainants' motion to amend bill of revivor is denied. 



Brown v. Ricketts, 2 Johns. Ch. (N. Y.) Jf25. (1817.) 

Bill for a legacy, filed the 3d of October last. The defendants 
put in their answer the 13th of December, and the plaintiff filed 
his replication the 4th of January last. The plaintiff now pre- 
sented a petition for leave to withdraw the replication, to enable 
him to except to the answer, and to amend his bill. 

The petition was not sworn to : a copy of it, with notice of the 
motion, was duly served on the solicitor of the defendants. 

An affidavit of the plaintiff's solicitor, made since the service of 
the notice of the motion, a copy of which had not been served on 
the defendants' solicitor, was produced, stating, that the replication 
was filed through misapprehension, on the ground that the answer 
was sufficient, arising from his perusal of an imperfect and incor- 
rect draft of the bill; and that he had since discovered that the 
bill filed charged the matters which he supposed were omitted, 
and which were not fully answered. 

The affidavit of the defendants' solicitor stated, that the answer 
filed was a full answer to the bill; that since the cause was at 
issue, no step had been taken by the plaintiff; and that, on the 
21st of March, he entered rules to produce witnesses, and to show 
cause against publication. 

The Chancellor: 

The petition states two objects of the motion for leave to with- 
draw the replication; the one is, to except to the answer; the 
other, to amend the bill. 

As to the first object ; the plaintiff does not state, in his petition, 
wherein the answer is defective, nor why the defects, if any, were 
not discovered l)efore. It is now upwards of three months since 



Brown v. Ricketts 251 

the replication was filed. There is, indeed, an affidavit presented 
on making the motion, but that affidavit was not served on the 
op]X)site solicitor, and if notice of the motion was requisite at all 
(which is not disputed), a copy of the affidavit on which it was 
founded ought equally to have been served. The affidavit is, there-, 
fore, not regularly before me on this motion; and even if it were, 
the reason therein assigned for the motion is not sufficient. The 
plaintiff's solicitor says, he filed the replication through misappre- 
hension, inasmuch as he mistook an incorrect draft of the bill for 
the corrected copy on file, and that the answer, though good as to 
the former, is not as to the latter. But this affidavit does not 
disclose wherein, or to what extent, the answer is insufficient, nor 
when the variation between the draft of the bill, and the one on 
file, was discovered, nor in what that variation consists. The excuse 
itself is feeble and imperfect. The solicitor to the bill compares 
the answer with some defective draft of his own bill, and now 
comes, three months after the cause it put at issue, with such a plea 
of negligence, and with all this want of precision and regularity 
in bringing forward the motion, for leave to file exceptions to the 
answer. This would be granting an unreasonable indulgence, and 
one leading to vexation and delay in the prosecution of a suit. It 
was said, by Lord Hardwicke, in Pott v. BcijnoJch, 3 Atk. 565, 
that the Court rarely grants leave to withdraw the replication, 
unless there be some special cause shown to induce the Court to 
grant this indulgence; and the books say, that as the replication 
admits the sufficiency of the answer, it is not usual for the Court 
to allow the plaintiff to withdraw it, for the purpose of excepting 
to the answer. (Wyatt's P. R. 202. Cooper's Eq. PI. 328.) The 
reasons for such an application should be clearly stated, and be 
of sufficient import, and the laches of the plaintiff fully accounted 
for. The rules of the Court allow only three weeks to except to 
the answer. The policy of the rule is to make the party vigilant, 
and oblige him to look early and well to the answer. If the object 
of the motion was only to set down the cause for hearing, on bill 
and answer, I presume that it would be much, of course, according 
to the late case of Cowdell v. Tatlocl-, 3 Vesey & Beame, 19. 

The other ol)ject of the present motion is to amend the bill. 
Tlie petition states, that the bill is materially defective; but the 
affidavit of the plaintiff's solicitor states, that the bill fully charges 
the matters which he, at first, thought had been omitted, and the 



252 Eeplication 

same solicitor now states, in support of his motion, that the bill is 
full, and that the only amendment desired is one of mere form, 
and requiring no further answer. It will readily be perceived, 
that this is not sufficient ground for withdrawing a replication 
several months after is has been filed. To withdraw the replication 
for the purpose of amending the bill, the plaintiff must show the 
materiality of the amendments, and why the matter to be intro- 
duced by the amendment was not stated before, otherwise the rules 
of the Court to prevent vexatious delays of the plaintiff would be 
nugatory. (Longman v. Calliford, 3 Anst. 807.) 
The motion is, accordingly, denied, with costs. 



CHAPTER VIII. 

DECREES. 

Nature, Effect, Amending and Enforcing. 

Hughs V. ^Yashington, 65 III. 21^5. (1S72.) 

Appeal from the Circuit Court of Cook county; the Hon. Wm. 
W. Farwell, Judge, presiding. 

Mr. Justice Walker delivered the opinion of the Court: 

These cases present substantially the same questions, and wo, 
therefore, consider them as one. Tliey were brought by the heirs 
of John A. Washington against George E. H. Hughs and the heirs 
of Sanderson Robert. The bills were filed to set aside and annul 
contracts of sale of large and valuable real estate in the city of 
Chicago, by Hughs, as the agent of Washington's heirs, to Robert. 
The ground alleged for rescinding the contract was fraud. 

The cases were heard together, in the circuit court of Cook 
county, on the 6th day of May, 1871. The evidence was very 
voluminous, and consisted largely of letters sent and received by 
the various parties, depositions and other documentary evidence. 

After the hearing was had, it is claimed that the court below 
decided the cases in favor of the complainants, but, before anv 
decree was rendered or enrolled, the fire of October of that year 
destroyed the court house and all the papers in the cases, both 
pleadings and evidence. 

Counsel agreed upon and restored the pleadings in the cases. 
The defendant then made a' motion for time to retake and restore 
all of the destroyed evidence, and urged their right to have the 
evidence restored and on file before a decree should be passed and 
filed for record or recorded. 

The motion of the defendants was denied, and the court, from 
memory of the evidence, pronounced a decree in each case, and 
they were duly enrolled and became final. From that decree the 
defendants ap^oeal, and assign the refusal of the court to stay the 
rendition of the decree until the evidence could be restored, as one 

253 



25'1 i^ATURE^ Effect, Amexdixg axd Exfoecing 

of the errors in the case; and, from the view we take of the case, 
we deem it unnecessary to consider any other. 

According to the ancient practice in the English court of chan- 
cery, the decree recited at length the entire pleadings in the case, 
and the substance of the evidence contained in the depositions. 
That practice has been slightly modified in that court in modern 
times, but its decrees still contain full recitals. In our courts of 
chancery, the practice has permitted, but not required, such recitals, 
especially of the CTidenee. The practice has obtained neither in 
Great Britain nor this country to set out the depositions in full, 
but simply to recite the substance of the evidence they contain 
pertinent to the issue. 

As the practice in chancer}^ has always required the evidence 
to be in writing, or if oral, to be reduced to writing, and preserved 
in the record, it is apparent that the old practice of embodying 
it in the decree was not material, as it could at all times be referred 
to for the purpose of seeing upon what the decree was based, and 
whether it was sustained by the evidence ; and hence, our practice 
dispensed with emlx)dying it in the decree. But the practice, as 
modified, does not dispense with the absolute necessity of preserv- 
ing the evidence in the record. ]T7n7e v, Morrison, 11 111. 361; 
Wilhite V. Pearce, -17 111. 413 ; Hill's Ch. Pr. 319, and numerous 
other cases, recognize the rule. 

On an appeal from the decree, each party has the right to rely 
upon the evidence heard in the c-ourt below, to test the correctness 
of the conclusions at which the court has arrived; and, in such 
a case, the finding of the facts in the decree will be controlled by 
the evidence in the record, where it appears that it has all been 
preserved. The appellate court will look into the record to see 
whether the evidence warrants the court in its action in finding 
the facts stated in the decree, and if, from all the evidence that was 
heard, it appears the chancellor erred in the finding of the facts, 
the appellate court will disregard the findings, and will be con- 
trolled by the evidence. Under the ancient practice, the decrees 
in these cases would ha-ve contained a complete record of the case, 
and from it alone the appellate court could have determined 
whether error had intervened; and if the evidence had been pre- 
served in the record, the same result would follow where a complete 
record is presented for consideration. But in the position the case 
now occupies, the defendant has no jDower to show that the facts 



Hughs v. Washington 255 

found by the chancellor in the decree are not warranted by the 
evidence. 

It is an undoubted right, enjoyed by every litigant, to have the 
judgment or decree to which he is a party passed upon and reviewed 
by an appellate court. This, the constitution has guaranteed to 
him; nor can the courts, by rules of practice, deprive him of the 
right, or materially impair its efficiency. And, in all common law 
cases, under our statute, it is the duty of the party desiring to have 
the case reviewed on the evidence, to preserve it in the record, or the 
presumption will be indulged that the court below acted prop- 
erly in its decision. Not so with a decree, as no presumption is 
indulged beyond the extent to which it is sustained by the proofs 
appearing in the record. Hence, it devolves upon the party in 
whose favor it is rendered to preserve evidence that will sustain 
the decree, or it must find that facts were proved that will sustain 
the decree, or it will be reversed. 

Did the court below act prematurely in rendering these decrees 
before the evidence was restored ? 

It is contended that inasmuch as the chancellor had heard the 
evidence, and had announced what his decision would be, and had 
written out a statement of the grounds for the decision, it must be 
considered that the case was finally decided, and nothing remained 
but the formal matter of drawing and passing the decree. This 
is manifestly not the correct view of the question. Under the 
English practice, after the hearing is had, the chancellor pro- 
nounces his decree, and the registrar takes minutes of it, and they 
are usually read over by him to the parties, or their solicitors, and 
copies of such minutes are generally applied for and furnished to 
the parties. If not satisfactory, by reason of their uncertainty, or 
that anything has been omitted, and the registrar refuses to correct 
them, application may be made to the court to correct them. After 
the minutes are settled, the decree is then drawn up by the registrar, 
and delivered to the party who demanded it. "The decree having 
been returned, and an office copy taken by the adverse party, the 
next step to be taken is to have it passed and entered; till which 
is done, the decree is only inchoate." 2 Danl. Ch. Pr. 670. But 
this practice has not, in form, obtained in this State. 

But our practice is, in principle, the same. The decree is m- 
clioaie until it is approved by the chancellor and filed for record, 
or shall be recorded, which answers to the passing and entering it, 



256 Nature, Effect, Amending and Enforcing 

in the English court. The mere oral announcement of the chan- 
cellor of his decision, and the grounds upon which it is hased, or 
the reducing them to writing, is no more than the minutes taken, 
in the English practice. The whole matter is completely under the 
control of the chancellor until the final decree has been filed or 
recorded. Until that time, he may alter, amend, change, or even 
disregard, all that he had said in his minutes ; and if, upon further 
reflection, he became satisfied his conclusions were wrong, it would 
be his duty to reverse his announcement, and to decree as he was 
convinced the equities of the case required; or if, upon further 
reflection, he should doubt the correctness of his conclusion, he has 
the undoubted right to order a rehearing, on his own motion, at 
any time before he has passed the decree, and it has been filed for 
record, or has been spread upon the record. But after that is 
done, the whole matter is beyond his control, unless it be on a bill 
of review, or a bill to impeach the decree, or some such subsequent 
proceeding. It is then, and not till then, that it is the decree of 
the court, and is res ad judicata. 

There was, then, no decree of the court until it was approved 
and filed for record, or was recorded; and that was the time the 
case was decided and the decree was rendered; and there was at 
that time, as a matter of fact, no evidence upon which to base the 
decree. Had the fire occurred, and the papers been destroyed 
before the court heard the evidence read, no one would pretend the 
court could have, after its destruction, rendered a decree until the 
testimony was restored, or if the evidence had been but partly read 
to the court, the same would be undeniably true; and we presume 
it would not be claimed that the court could have proceeded to 
decree, had the evidence been destroyed after it was heard by the 
court, and before he had announced what decree he intended to 
render; and, as we have seen, that announcement concluded no 
one, nor did it legally bind the court to adhere to the announce- 
ment. 

The case, it is true, was before the court for decision, but was 
not finally decided until the decree was filed for record; and we 
have seen that there was no evidence at that time upon which to 
base the decree. 

The court below should have allowed the evidence to be supplied 
before the decree was passed and filed. It was the only means by 



La. Bank v. Whitney 257 

which their right of appeal could be rendered availing to the 
parties. 

The destruction of the evidence was occasioned by one of those 
public calamities for which the parties were in nowise responsible ; 
and such being the case, neither of them should be prejudiced by 
it, beyond what can not be repaired. 

We are clearly of opinion that the court below erred in rendering 
the decree until the evidence was restored ; and, for that reason, the 
decree of the court below must be reversed and the cause remanded, 
with leave to appellants to restore the evidence, and, for that pur- 
pose, the court below will give them a reasonable time. 

Decree reversed. 



La. Bank v. Whitney, 121 U. 8. 28^. (1887.) 

This was a motion to dismiss for want of jurisdiction. The 
case is stated in the opinion of the court. 

Mr. Chief Justice Waite delivered the opinion of the court. 

This is a proceeding begun May 22, 1883, by Mrs. Myra> Clark 
Gaines, then in life, to subject a certain sum of $40,000 on deposit 
in the Louisiana National BanJc to the payment of a judgment 
in her favor against the City of New Orleans. There is no dispute 
about the fact that the money in question was on deposit when the 
proceeding was begun and the bank served with process, but the 
Board of Liquidation of the City Debt has made claim to it as 
part of the fund appropriated by Act No. 133 of 1880 to the pay- 
ment and liquidation of the bonded debt of the city. Pending 
the determination of the questions involved, the court, March 15, 
1880, ordered the money paid into the registry of the court. From 
this order the bank has appealed, and also sued out a writ of error, 
and the Board of Liquidation has likewise appealed. The repre- 
sentatives of Mrs. Gaines, who were made parties to the proceeding 
after her death, now move to dismiss both the writ of error and 
the appeals, tecause the order to be brought under review is not 
a final judment or decree within the meaning of that terra as used 
in the acts of Congress giving this court jurisdiction on appeals 
and writs of error. 

We have no hesitation in granting the motion. Tlie court has 

17 



258 Natuhe, Effect, Amending and Enforcing 

not adjudicated the rights of the parties concerned. It has only 
ordered the fund into the registry of the court for preservation 
during the pendency of the litigation as to its ownership. Such 
an order it has always been held is interlocutory only and not a 
final decree. Forgay v. Conrad, 6 How. 20-i; Grant v. Phoenix 
Ins. Co., 106 U. S, 431. If in the end it shall be found tha:t 
the fund belongs to the Board of Liquidation, it can be paid from 
the registry accordingly, notwithstanding the order that has been 
made. The money when paid into the registry will be in the hands 
of the court for the benefit of whomsoever it shall in the end be 
found to belong to. 

Both the appeals and the writ of error are dismissed. 



Winthrop Iron Co. v. Meelcer, 109 U. S. ISO. (1S83.) 

Appeal from the Circuit Court of the United States for the 
Western District of Michigan. — Motion to dismiss the appeal. 

Mr. Chief Justice Waite delivered the opinion of the court. 

This is a motion to dismiss an appeal because the decree ap- 
pealed from is not a final decree. The motion papers show 
that the appellees, Meeker, Brown, and Brooks, a minority of 
the stockholders of the Winthrop Iron Company, on or about 
the 12th of November, 1881, filed a bill in equity in the Circuit 
Court of the United States for the Western District of Michigan 
against the Winthrop Iron Company, the Winthrop Hematite 
Company, and certain directors of the Iron Company who were 
the stockholders of the Hematite Company, the object and purpose 
of which was to set aside as fraudulent and void the proceedings 
of the stockholders of the Iron Company at a meeting held in 
Chicago on the first of October, 1881, and to have a receiver 
appointed to take possession of the property of the company and 
manage its affairs. The effect of the proceedings of the meeting 
complained of was, as alleged, to authorize a lease of the property 
of the Iron Company to the Hematite Company from and after 
the first of December, 1882, for the personal advantage of the 
majority stockholders of the Iron Company, regardless of the 
rights of the minority. The stockholders of the Hematite Company 
were also elected directors of the Iron Company, and constituted 



WiNTiiROP Iron Co. v. Meeker 259 

a majority of the board. On the second day of October, 188'^, the 
cause was submitted to the court upon the pleadings, proofs, and 
arguments of counsel. From the proofs it appeared that notwith- 
standing the pendency of the suit, the Iron Company had, on 
the 30th of Xovember, 1881, executed a lease to the Hematite 
Company, according to the vote of the stockholders. On the 
6th of April, 1883, a decree was rendered which, in effect, ad- 
judged that the proctn^dings of the meeting were in fraud of 
the rights of the minority stockholders, and that the lease which 
had been executed in accordance with the authority then given 
was "null and void, for the fraud of the defendants, the Win- 
throp Hematite Company and the St. Clair Brothers," the ma- 
jority stockholders and directors of the Iron Company, "in pro- 
curing the same." By the same decree a receiver was appointed 
to take charge of and manage the business of the Iron Com- 
pany, evidently because a majority of the board of directors, 
after the election at the October meeting, were considered unfit 
to control its affairs, as their personal interests were in conflict 
with the interests of the company. Both the Iron Company and 
Hematite Company, as well as the defendant directors of the Iron 
Company, were ordered to "forthwith surrender and deliver to" 
the receiver all the property of the Iron Company, and "all cor- 
porate records and papers." Tlie recei's^r was fully authorized to 
''continue the management of the business of the . . . com- 
pany, with power to lease or operate its mines and plants until the 
further order of the court." The decree further ordered an 
accounting before a master by the Hematite Company and the 
defendant directors of the Iron Company, for all profits realized 
from the use of the leased property after the 1st of Decembei-, 
1882, the date of the beginning of the term under the lease which 
had been set aside. There was also an order for an accounting 
by the defendant directors "concerning the ores mined by them, 
and the royalty upon such ores due and owing by them to the 
. . . company, and concerning the rights and obligations of 
the lessor and lessee, under and according to a lease mentioned in 
the bill, . . . expiring on December 1st, 1882." At the foot 
of the decree is the following: "And the court resen-es to itself 
such further directions as may be necessary to carry this decree 
into effect, concerning costs, or as may be equital)le and just." 
From this decree the appeal was taken. 



860 Nature, Effect, Amending and Enforcing 

In our opinion the decree as entered is a final decree, within 
the meaning of section 692 of the Revised Statutes, regulating 
appeals to this court. The whole purpose of the suit has been 
accomplished. The lease made under the authority of the meet- 
ing of October, 1881, has been cancelled, and the management 
of the affairs of the company has been taken from the board of 
directors, a majority of whom were elected at that meeting, and 
committed to a receiver appointed by the court, plainly because, 
in the opinion of the court, the rights of the minority stock- 
holders would not be safe in the hands of directors elected by the 
majority. In order that the receiver may perform his duties, the 
defendants are required to turn over to him the entire property 
and records of the company. The accounting ordered is only in 
aid of the execution of the decree, and is no part of the relief 
prayed for in the bill, which contemplated nothing more than a 
rescission of the authority to execute the fraudulent lease, or a 
cancellation of the lease if executed, and a transfer of the manage- 
ment of the affairs of the company from a board of directors, whose 
personal interests were in conflict with the duty they owed the 
corporation, to some person to be designated by the court. The 
litigation of the parties as to the merits of the case is terminated, 
and nothing now remains to be done but to carry what has been 
decreed into execution. Such a decree has always been held to 
be final for the purpose of an appeal. Bostwick v. Brinkerlioff, 
106 U. S. 3, and the cases there cited. In Forgay v. Conrad, 6 
How., at p. 204, it was said by Chief Justice Taney, for the 
court : 

"And when the decree decides the right to the property in 
contest, and directs it to be delivered by the defendant to the 
complainant, .... and the complainant is entitled to have 
such a decree carried immediately into execution, the decree must 
be regarded as a final one to that extent, and authorizes an appeal 
to this court, although so much of the bill is retained in the 
circuit court ae is necessary for the purposes of adjusting, by a 
further decree, the accounts between the parties pursuant to the 
decree passed. This rule, of course, does not apply to cases where 
money is directed to be paid into court, or property to be delivered 
to a receiver, or property held in trust to be delivered to a new- 
trustee appointed by the court, or- to cases of a like description. 
Orders of that kind are frequently and necessarily made in the 



WiNTiiROP Iron Co. v. Meeker 261 

progress of a cause. But they are interlocutory only, and intended 
to preserve the subject-matter in dispute from waste or dilapidation, 
and to keep it within tlie control of the court until the rights 
of the parties concerned can be adjudicated by a final decree." 

Here the rights of the Hematite Company and the defendant 
directors of the Iron Company liave been adjudicated and definitely 
settled. Their lease, which was in reality the subject-matter of 
the action, has been cancelled, and a deliver}' of the leased property 
to the Iron Company has been ordered. The complainants arc 
entitled to the immediate execution of such a decree. The receiver 
to whom the delivery is to be made was not appointed to hold 
the property until the rights of the parties could be adjudicated, 
but to stand, subject to the direction of the court, in the place 
of and as and for the corporation, because, under the circumstances, 
the corporation is incapacitated from acting for itself. His posi- 
tion is like that of the guardian of the estate of an incompetent 
person. He represents the Iron Company, and a delivery of the 
leased property to him is a delivery in fact and in law to the 
company itself; that is to sa}^, to the party for whose use the suit 
was prosecuted. The complainant stockholders sue for the com- 
pany, and the delivery to the receiver is a delivery to the company 
that has been adjudged to be entitled to immediate possession, 
notwithstanding the lease to the Hematite Company. The de- 
fendant directors have not in form been removed from their office, 
but their power as directors has been taken from them, and they 
are no longer able to carry into effect the orders of the stock- 
holders made in fraud of the rights of the minority at the meeting 
in October. A new officer has been appointed to stand in the place 
of the directors as manager of the affairs of the company. In the 
words of ]\Ir. Justice McLean in Craighead v. Wilson, 18 How., 
at p. 201, the decree is final "on all matters within the pleadings," 
and nothing remains to ]yc done but to adjust the accounts between 
the parties growing out of the operations of the defendants during 
the pendency of the suit. The case is altogether different from 
suits by patentees to establish their patents and recover for the 
infringement. There the money recovery is part of the subject- 
matter of the suit. Here it is only an incident to what is sued for. 

The motion to distniss is denied. 



262 Nature^ Effect, Amending and Enforcing 

Giant Powder Co. v. Cal Powder Co., 5 Fed. Rep. 197. (1880.) 
In Equity. Petition for rehearing. 

Field, C. J.: 

This ease was heard b}^ me whilst holding the circuit court in 
San Francisco, in the month of September last, and was decided 
on the twelfth of October following. The decision was against the 
complainant, and a decree was entered dismissing the bill. The 
complainant's counsel now present to me at Washington a petition 
for a rehearing. 

The case was elaborately argued at the circuit, counsel occupying 
several days in the presentation of their views. Their arguments 
were taken down by a short-hand writer, and printed, thus enabling 
me to read what I had patiently listened to in the oral discussion. 

The question before the court was the validity of the re-issued 
patent to the complainant. The main objection urged to its 
validity was that it was for a different invention from that de- 
scribed in the original patent. And upon that point the argument 
was full, elaborate, and able. It is difficult to see how the position 
of the complainant in support of the patent could have been more 
cogently presented. 

The original patent was for a compound of nitro-glycerine, with 
an inexplosive porous absorbent, which would take up the nitro- 
glycerine, and render it safe for transportation, storage, and use, 
without loss of its explosive power. The re-issued patent is for a 
compound of nitro-glycerine with any porous absorbent, explosive 
or inexplosive, which will be equally safe for transportation, 
storage, and use, without loss of explosive power. In other words, 
the re-issued patent drops the limitation of the original, and seeks 
to cover all compounds in which nitro-glycerine is used, in con- 
nection with a porous absorbent, in the production of blasting 
powder, thus practically securing to the patentee a monopoly of 
nitro-glycerine in the manufacture of that powder. The court 
held that the re-issued patent was, therefore, more extensive in its 
scope than the original patent, and on that ground was invalid. 
It covered a different invention. 

The court also hold that the original patent was neither invalid 



Giant Powder Co. v. Cal. Powder Co. 263 

nor inoperative from any defective specification, but was valid and 
operative for the invention described; and that this appeared upon 
a comparison of the two patents, the re-issued patent differing 
from thu original only in the extent of its claim ; and that, there- 
fore, the commissioner exceeded his jurisdiction in granting a 
re-issue at all, as well as on the ground that the re-issued patent 
was for a different invention. This latter position was not, it is 
true, discussed in the oral argument, but it is raised by the plead- 
ings, and the attention of complainant's counsel at San Francisco 
was called to it, and a note of authorities on the point was received 
from him, embracing the greater part of those mentioned in the 
petition for rehearing. ^^Tiether the position be well taken or not 
cannot affect the decision of the case, if the re-issued patent cover 
a different invention from that described in the original patent. 
But the petition cannot now be considered by me at Washington. 
It is not an ex parte proceeding; it can only be presented on 
notice, and can only be considered after the other side has had an 
opportunity to answer it. The ex parte presentation by counsel has 
evidently been made from a failure to distinguish between an 
application for rehearing after the decision of an appellate tribunal, 
and an application for a rehearing in a court of original jurisdic- 
tion after entry of a final decree. The distinction between applica- 
tions for rehearing in the two cases is pointed out by Chief Justice 
Taney, in Brown v. Aspden, 1-i Howard, 26: "By the established 
rules of chancery practice/' said the chief justice, "a rehearing, 
in the same sense in which that term is used in proceedings in 
equity, cannot be allowed after the decree is enrolled. If the party 
desires it, it must be applied for before the enrollment. But no 
appeal will lie to the proper appellate tribunal until after it is 
enrolled, either actually or by construction of law; and, conse- 
quently, the time for a rehearing must have gone by before an 
appeal could be taken. In the house of lords in England, to which 
the appeal lies from the court of chancen% a rehearing is alto- 
gether unknown. A reargument, indeed, may be ordered, if the 
house desires it for its own satisfaction. But the chancery rules in 
relation to rehearings, in the technical sense of the word, are 
altogether inapplicable to the proceedings on the appeal. 

"Undoubtedly, this court may and would call for a reargument 
where doubts are entertained, which it is supposed may be re- 
moved by further discussion at the bar. And this mav be done 



264 Nature, Effect, Amending and Enforcing 

after judgment is entered, provided the order for reargument is 
entered at the same term. But the rule of the court is this — 
that no reargument will be heard in any case after judgment is 
entered, unless some member of the court who concurred in the 
judgment afterwards doubts the correctness of his opinion, and 
desires a further argument on the subject. And, when that hap- 
pens, the court will, of its own accord, apprise the counsel of its 
wishes, and designate the points on which it desires to hear them." 

According to the practice in the supreme court, if the court 
does not, of its own motion, desire a rehearing of a case decided, 
counsel are at liberty to submit without argument a brief petition 
or suggestion of the points upon which a rehearing is desired. If, 
then, any judge who concurred in the decision thinks proper to 
move for a rehearing, the motion is considered by the court; 
otherwise, the petition is denied, of course. Public Schools v. 
Wallace, 9 Wall. 604. 

A similar course of procedure would be appropriate in any 
appellate tribunal. To allow an argument upon such a petition 
would lead, in a majority of cases, to a mere repetition, with more 
or less fullness, of the points presented on the original hearing, and 
cause infinite delays to the prejudice of other suitors before the 
court. 

There is another observation to be made upon rehearings in 
equity after a final decree in courts of original jurisdiction. The 
practice in this country and that which formerly prevailed in 
England are essentially different. According to the practice in the 
English courts, a rehearing previous to the enrollment of the 
decree, when the petition was approved by the certificate of two 
counsel, was granted almost as a matter of course. Eepeated re- 
hearings in the same cause were not uncommon, and the consequent 
delays and expenses from this practice were so great as to lead 
to the interposition of parliament for its correction. This subject 
is mentioned by Chief Justice Taney in his opinion in the case 
in Howard. There, when a case was decided, memoranda for the 
decree were entered in the minutes of the court; in some instances 
the final decree was thus entered; but the decree was not con- 
sidered as strictly a record until it was engrossed, signed, and 
entered at length in the rolls of the court. Between the time of 
the decision and the entry of memoranda for the decree, and the 
time the decree took a definite shape 1\y enrollment, it was open 



Giant Powder Co. v. Cal. Powder Co. 265 

to modification and correction, and even to entire change. But 
when once enrolled the decree was not subject to change except 
in the house of lords, or by a bill of review. 2 Daniell's Chancery 
Practice, 1018. 

In this country there is not, except, perhaps, in one or two 
states where the old forms of equity practice are retained, any 
such proceeding as the formal enrollment of decrees. Here, when 
a case in equity is decided, a decree is drawn up and signed by 
the judge, and entered on the records of the court, with about 
the same formality as a judgment in a case at law. And rehearings 
are then granted, except when the judge acts of his own motion, 
only upon such grounds as would authorize a new trial in an action 
in law; that is, for newly-discovered evidence or errors of law 
apparent upon the record. All the limitations which control courts 
in actions at law, in considering allegations of newly-discovered 
evidence and of errors at law, apply to applications for rehearing 
in such cases. Bentley v. Phelps, 3 W. & M. 403. See, also, 
Doggett v. Emerson, 1 W. & M. 1; Emerson v. Daniels, Id. 21; 
Tufts V. Tufts, 3 W. & M. 426; and also Clapp v. Thaxter, 7 
Gray, 38G. 

Tlie course of procedure for the complainant, therefore, is to 
file its petition with the clerk of the circuit court at San Fran- 
Cisco, and obtain from the court or circuit judge an order upon 
the defendants to show cause on the following rule day, or some 
other day mentioned, why its prayer should not be granted. The 
defendants can then answer the petition, and upon the petition 
and answer the application can be heard. A rehearing should not 
be granted for newly-discovered evidence where the evidence could 
have been obtained by reasonable diligence on the first hearing, 
nor when it is merely cumulative to that previously received, nor 
when, if presented, it would not have changed the result. And as 
to errors of law, they should be such as are clearly shown by 
considerations not previously presented. A new hearing should not 
be had simply to allow a rehash of old arguments. The proper 
remedy for errors of the court on points argued in the first hearing 
is to be sought by appeal, when the decree is one which can 
reviewed by an appellate tribunal. See Tufts v. Tufts, supra. 

The petition, therefore, cannot be heard by me ex parte at 
Washington. The complainant must pursue the regular course 
of procedure, and give notice to the opposite party. If the peti- 



266 Nature^ Effect, Amending and Enforcing 

tion be filed during the term, the court will retain jurisdiction 
over the case, and may subsequently decide upon the application. 
The eighty-eighth rule in equity applies only where no petition 
is presented during the term. 

As the circuit court in San Francisco will be held by the circuit 
judge in my absence, he will direct its clerk to forward the petition 
and answer to me, at Washington, accompanied with such briefs 
as counsel may file within a reasonable time to be allowed by the 
court. The application will then be taken up and disposed of, 
and my judgment sent to the circuit court and there entered. 
Where cases have been heard by the circuit judge sitting alone, 
I do not myself hear applications in them for a rehearing, or 
motions for a new trial, except by his request. This consideration 
to the different judges composing the court is essential to the 
harmonious administration of justice therein. As observed by me 
in a case reported in 1 Sawyer : "The circuit judge possesses equal 
authority with myself on the circuit, and it would lead to unseemly 
conflicts if the rulings of one judge, upon a question of law, should 
be disregarded, or be open to review by the other judge in the same 
case." Page 689. 

The petition contains what purports to be a copy of my opinion, 
but it is a copy of the opinion before it was revised. The opinion 
should not have been published until it had received my revision, 
as counsel very well know. In any petition hereafter filed it is 
expected that a correct copy will appear, if any one is given. If the 
present petition is used, the opinion must be corrected in accordance 
with the revised copy. 

Before concluding, it may not be amiss to invite the attention 
of complainant's counsel to the language of Judge Story, in the 
case of Jenkins v. Eldridge, with respect to the earnestness with 
which counsel, in applying for rehearings, sometimes asseverate 
their convictions of the errors of the court; and, to repeat what is 
there said, "that if any judge should be so unstable in his views, 
or so feeble in his judgment, as to yield to them, he would not only 
surrender his independence, but betray his duty. However humble 
may be his own talents, he is compelled to treat every opinion of 
counsel, however exalted, which is not founded in the law and the 
facts of the case, to be voiceless and valueless." 3 Story, 303. 
Nothing can be gained by the strong language expressed by counsel 
in presenting the petition as to the supposed errors of the court, 



]iiDER V. Kidder 267 

nor by the statement a^ to what may have been said of the decision 
by other counsel, who have neither examined, studied, nor under- 
stood the case. 



Eider v. Kidder, 12 Yes. Jr. 202. (1806.) 

A MOTION was made by the Plaintiff, for a short Order upon the 
Defendant, to transfer the stock under the Decree in this cause; 
and that service upon the Clerk in Court may be good service. 

Mr. Bell, for the Defendant, opposed the Motion ; insisting upon 
the general rule, that nothing can be done for the purpose of bring- 
ing a man into contempt without personal service. An attachment 
will not issue, except upon personal service of the writ of execution 
of the Decree; and the Court giving the indulgence of a short 
Order, which is not the regular process of the Court, will not put 
the Defendant in a worse situation. 

The Solicitor-General [Sir Samuel Eomilly], and Mr. Hart, in 
support of the Motion, took the distinction, that, this application 
being for service of the writ of execution of the Decree, the De- 
fendant being present in Court, must have had notice; and the 
only object of requiring personal service is to prevent surprise. It 
was observed, that the reason of applying for a short Order is to 
prevent expense. 

The Lord Chancellor [Erskine] : 

The practice in this Court, that in order to fix a person with 
contempt, the service must be personal, has a strong analogy to 
the practice in Courts of Common Law upon attachment. The 
sernce must be personal, unless upon some very special application 
it is dispensed with; which may be under circumstances certainly. 
The reason of requiring personal service is, non constat, that there 
is a contempt; that the party knows, that he has neglected to do 
any thing ho was called upon to perform. But in this instiince, a 
Decree made, when the Defendant was present in Court, she knows, 
she has not done what she was directed to do, and must therefore 



868 Natuke, Effect, Amending and Enforcing 

be conscious, that she is in contempt. If this course cannot be 
taken, the Defendant might, when called upon to pay money, keep 
out of the way; and so prevent the effect of a Decree or Order 
made, when he was present in Court. 

The same point arising in the case of De Manneville v. De Manne- 
ville, the Order in this case was postponed; that the practice might 
be looked into. 



CHAPTER IX. Y/^-^ l)P 

AMENDMENTS, BILL OF REVIEW, NE EXEAT, PRODUC- 
TION OF PAPERS, ABATEMENT, ETC. 

Amendments. 

VerplancJc v. Mercantile Co., 1 Edwd. Ch. (N. Y.) Jf6. (1831.) 

In this case, Ogden Edwards, Esq. as Vice-Chancellor of the 
first circuit, had granted a general injunction, and allowed of the 
appointment of a receiver. Appeals were had; and by an order 
of the Chancellor, dated at Albany, on the twenty-first day of June, 
1831, the orders granting the injunction and appointing a receiver 
were vacated with costs. The following is a part of the Chancellor's 
order: — "It is ordered, that the said orders granting a general 
injunction in the said bill and appointing a receiver in this cause 
be and the same are hereby reversed and vacated, with costs on 
the appeals therefrom, to be paid by the respondents to the 
solicitor of the appellants. And it is further ordered, that the 
proceedings be remitted back to the Vice-Chancellor of the first 
circuit; with permission to the complainants to apply to the said 
Vice-Chancellor to amend their bill of complaint so as to make the 
corporation of the Mercantile Insurance Company defendants 
therein,* and otherwise as they may be advised, upon due notice 

*The prayer in the original bill went against the President and Direc- 
tors of the Mercantile Insurance Company of New York, whereas the style 
of the Company, by the act of incorporation (April lo, i8i8), was. The 
Mercantile Insurance Company of New York. In the opinion which his 
Honor the Chancellor gave, in relation to setting aside the orders for the 
injunction and a receiver, he says, ''The first objection is, that although the 
order appointing a receiver purports to have been entered in a suit against 
'The Mercantile Insurance Company of New York,' under which order the 
appellants have been deprived of the possession of their property, they were 
not, in fact, parties defendant in the bill ; as the prayer of process was only 
against the officers of the corporation. The name of the corporation is as 
before stated. The prayer for process is. that the subpoena may be directed 
to the president and directors of said company. This was undoubtedly 
owing to the mistake of the solicitor who drew the bill; and who proba- 
bly did not intend to make the president or directors, but only the corpora- 
tion and Joseph Barker, parties to the suit. The same mistake exists as to 
the prayer for the injunction; and is also carried into the order granting 
the injunction. So that the injunction in fact is neither against the corpora- 
tion nor its officers, by their proper names. As this objection is merely 

260 



270 Amendments 

to the solicitor of the appellants, amd of Jacob Barker, of such 
application; and upon such amendment being made, an order may 
be entered, directing the defendants to show cause before the said 
Vice-Chancellor, at such time and upon such notice as he shall 
direct, why a general or other injunction should not be granted 
and a receiver be appointed," &c. &c. 

A petition, in the names of the complainants, was this day 
presented to the court. It mentioned the suit; the appeals from 
the orders before mentioned; and the reversal of those orders, 
referring also to a copy of the Chancellor's order, which was an- 
nexed. Also, the necessity of amending their bill. Tlie proposed 
amendments were set forth in a schedule. The petitioners further 
showed, that the additional facts contained in the said amendments 
and schedules, so far as the same differed from the original bill, 
had been discovered since the filing thereof, and were truly stated, 
according to the best information and belief of the petitioners. 
The prayer of the petition was in these words : — "Your petitioners 
therefore pray leave to amend their said bill, by striking out that 
l>art of the said bill, after the words, as hij reference to the said 

formal, I should not feel disposed to sustain it, if the difficulty could be 
obviated by an amendment. As it now stands, it may deprive the appel- 
lants of a substantial right. It is somewhat doubtful whether they have the 
power to answer this bill. It neither prays process against the corpora- 
tion, nor calls upon them to answer. For, by another singular oversight 
of the solicitor, that part of the bill merely prays the confederates may 
answer upon their corporal oaths. Whereas, the officers of the corporation, 
and not the company, are charged with confederacy ; and they only could 
put in their answer on their oaths. It is well settled, that no persons are 
parties as defendants in a bill in chancery, except those against whom 
process is prayed, or who are specifically named and described as defend- 
ants in the bill, (i Marsh. Ken. Rep. 594. 2 J. C. R. 245. 2 Dick. R. 
707.) In Elmcndorfv. Dclanccy, i Hopk. R. 555, Chancellor Sandford says, 
when it is uncertain who are the complainants, or who are the persons 
called to answer, the suit is fundamentally defective, and if the parties 
are not clearly designated, it is the fault of him who institutes the suit.' 
In answer to this objection, it was suggested by the respondents' counsel, 
that it is a mere misnomer of the corporation, and can only_ be taken 
advantage of by a plea in abatement. It cannot, however, in this case, be 
considered a misnomer. The name of the corporation and the substance 
of the charter is distinctly stated in the commencement of the bill, 
and the process is then prayed against the officers only. Besides, the ap- 
pellants never had an opportunity to make the objection by plea of abate- 
ment or in any other form. As the true name of the corporation was 
stated, the objection appeared on the face of the bill, and no plea was 
necessary to bring the fact to the notice of the court." "The proceedings 
must be remitted back to the Vice-Chancellor of the first circuit, with per- 
mission to the complainants to apply to him for leave to amend their bill, 
so as to make the corporation defendants therein; and otherwise as they 
may be advised," &c. 



Verplanck v. Mercantile Co. 271 

act will more fully and at large appear, in the sixth page of said 
bill, to the words as in duty bound," &c. in the twenty-third page 
thereof; and "insert the proposed amendment hereto annexed, 
marked B; and that the said schedules referred to as such, be 
taken as a part of said amended bill ; and that one or more of the 
complainants be permitted to verify by oath, in the usual way, 
the said amended bill; or, for such other and further order in 
the premises as to your honor shall seem meet." 

All the complainants resided in the city of N'ew York; but 
the petition was only signed and sworn to by their solicitor; 
Jurat : "F. S, K., solicitor for the complainants in this cause, 
being duly sworn, says, that he has read the foregoing petition, 
and knows the contents thereof : that the same is true of his own 
knowledge, except as to the matters therein stated to l)e upon his 
information and belief, and as to those matters he believes it to 
be true. F. S. K. Sworn, &c." 

The Vice-Chaxcellor : 

A motion is made on the part of the complainants, for leave 
to amend their bill, which was sworn to at the time it was filed, 
and upon which, ex parte, an injunction was granted and a 
receiver appointed. The orders allowing the injunction and ap- 
pointing the receiver, were, upon appeal, reversed: with permis- 
sion to the complainants to apply for leave to amend the bill, 
so as to make the corporation of the Mercantile Insurance Com- 
pany defendants therein; and otherwise, as they might be advised. 

The application to amend is accordingly made; and besides 
inserting the name of the company, the complainants propose to 
strike out the whole stating part of the bill (except the recital of 
the charter), the interrogating part and the prayer; and to insert, 
as a substitute, and by way of amendment — not a statement of 
a new matter entirely — ^but a restatement of the original matter 
in a different phraseology; leaving out some of the allegations 
or portions thereof; introducing some new and additional matter; 
specifying, in some instances, dates and times where none were 
mentioned before, omitting the whole of the particular interroga- 
tories, and restating the prayer of the bill although, in substance 
and effect, the same as is contained in the original. 

Tlie question is, as this is a sworn bill, whether amendmenis 
can be admitted in this way and to the extent here proposed ? In 



372 Amendments 

considering this question, it is necessary to distinguish between 
an amendment and matter which would constitute a new bill; 
for under the privilege of amending, the party is not to be per- 
mitted to make a new bill. Amendments can only be granted 
when the bill is found defective in proper parties, in its prayer for 
relief, or in the omission or mistake of some fact or circumstance 
connected with the substance of the case but not forming the sub- 
stance itself. This is the principle laid down in Lyon v. Tall- 
madge, 1 J. C. E. 184; and it applies to all bills and to pleadings 
in general in this court. When it comes to be applied to injunc- 
tion bills or to bills and answers which have been sworn to, other 
regulations adopted for the prevention of mischief are to be ob- 
served. Thus in Bodgers v. Rodgers, 1 Paige's C. E. 424, upon 
an application to amend an injunction bill, the Chancellor held, 
that the amendments proposed must be merely in addition to the 
original bill and not inconsistent with it; and the complainant 
must swear to the truth of the matter proposed to be inserted by 
way of amendment and show a valid excuse for not having incor- 
porated it in the original bill. And the latter branch of this rule 
was strictly adhered to in the subsequent case of Whitmarsh v. 
Campiell, 2 Paige's C. E. 67. It is contended, however, that the 
rule in these cases, is to be confined to injunction bills, that is to 
say, to cases where an injunction has been issued and is actually 
pending and where the complainant asks for leave to amend without 
prejudice to the injunction— as was the case in Bodgers v. Bodgers 
—and that it does not apply, where a bill has merely been sworn 
to and no injunction is outstanding upon it. But I apprehend 
it is not to be thus limited in its application ; and that the delay 
which would be occasioned by allowing amendments after an in- 
junction and in some instances after an answer put in, is by no 
means the only reason for the rule. 

Another and more important reason for holding a strict hand 
over the privilege of amending sworn pleadings is, to check all 
temptation to falsehood or perjur}% by not permitting a party 
who has once made his allegations or statements under oath to 
come in at any time and expunge the same or substitute other 
and different matter. If, indeed, it clearly appears there has been 
a mistake arising from inadvertency or accident, and that the 
statement is not what the party thought it was or intended it 
should be at the time of swearing to the pleading, the court will 



Verplanck v. Mercantile Co. 273 

permit him to amend upon discovery of the error. But, even in 
such cases, the court will not suffer the amendment to be made 
by striking out any part of the pleading. It can only be done 
by introducing an additional or supplemental statement explaining 
and correcting the former erroneous one. Thus, in Jennings v. 
Merton College, 8 Ves. 79, a motion was made to take the answer 
off the file, upon the ground of a mistake which had occurred in it. 
The Lord Chancellor refused the application, saying, the safest 
way would be to file an additional answer, giving the explanation 
so that the court might have the whole before it, without letting 
any thing go out of the record. And this course was sanctioned 
in the subsequent cases of Bolder v. The Bank of England, 10 
Ves. 284, and Wells v. Wood, ib. 401; and several others. The 
same question came under consideration in Boiven v. Cross, 4 J. C. 
E. 375, where Chancellor Kent, upon a review of all the English 
cases, held it to be not only settled, but the safer and wiser practice, 
not to permit any thing to be struck out of an answer, even where 
a mistake was clearly shown, but (for the purpose of correcting it) 
to give the party leave to file a supplemental or additional answer 
— thereby leaving to the parties the effect of what had been sworn 
before, with the explanation given by the supplemental answer. 
A perusal of his opinion in that ease will show the extreme caution 
with which the court permits even this to be done. He says, 
"there can be no doubt that the application ought to "hQ narrowly 
and closely inspected, and a just and necessary case clearly made 
out." 

If then, as respects amending an answer, the court is to be thus 
watchful to prevent any thing from, being stricken out, though 
introduced unintentionally and through mistake, is it not necessary 
to be equally particular in regard to a sworn bill, which a com- 
plainant may seek to amend in an important and material part? 
In some respects, the comparison may not hold good; for the 
occasions are much more frequent for amending bills than answers 
— and therefore a greater latitude should be given in the former 
cases. Yet it will be perceived that the occasions for amending 
bills, in which it is necessary to exhibit a greater indulgence, gen- 
erally arises from a discovery of a defect in the proper parties, in 
the prayer for relief, or in the omission of some fact or circum- 
stance rendered necessary to be introduced in consequence of the 
defendant's answer (and which a complainant may be permitted 
It 



274: Amendments 

to introduce, especially where the defendant, upon exceptions, is 
bound to make further answer) and where the matter for amend- 
ment does not affect the substance of the case made by the bill. 
Where the object of the amendments is to alter or change the 
substance of the bill, I hold that the same strictness should be 
required as where an answer is in question. The complainant may 
amend by introducing new parties; and by making such new 
charges, allegations and statements, in addition to the former, as 
he can verify by his oath, and which are not inconsistent with his 
former allegations. These are the true and legitimate purposes 
for which leave to amend may be granted; and it cannot be 
extended, with any sort of propriety, to the striking out of former 
allegations and substituting others, although they may not be very 
different in substance and effect. It has been urged that Renivich 
V. Wilson, 6 J. C. E. 81, contains a different doctrine, and that 
Chancellor Kent, if he has not so decided, has there, at least, 
sanctioned the idea that parts of a sworn bill may be expunged 
for the purposes of amendment — and that too, without prejudice 
to an injunction, provided the part expunged does not constitute 
the ground upon which the injunction rests. I do not, however, 
understand him as going that length. On the contrary, he ex- 
pressly limited the amendments, which he permitted to be made in 
that case, to additions to the bill; by "inserting such additional 
statements, matters and charges as the plaintiff should be advised 
"were material;" and this was done without prejudice to the 
injunction. At the same time, he says, he could not allow any 
part of the bill to be stricken out, without a previous specification 
of the parts intended to be omitted. It would seem from this 
expression, he considered the court might, in the exercise of its 
discretion, permit an amendment by striking out: but I appre- 
hend this permission should in no case be extended beyond the 
mere formal parts of a bill, and that the Chancellor in that case 
did not mean to be understood as intimating an opinion that 
any material or substantial allegation of fact, sworn to, might, at 
the instance of the party who made it, be withdrawn or obliterated, 
so that, if guilty of perjury no vestige of it might remain. 

Xo court of justice or equity ought, for one moment, to tolerate 
a practice, which would hold out to the designing an opportunity 
to commit and yet escape from this crime. By thus adverting to 
the danger of such a practice, I do not wish to bo understood as 



Verplanck v. Mercantile Co. 275 

refleding in tlio slightest degree upon the complainants. I am 
bound to believe and do believe the present application is mado 
from pure and honest motives, the better to enable them to present 
their case. My object in these observations is merely to show, that 
if the bill is permitted to be amended to the extent proposed, it 
will be establishing a precedent dangerous in practice — and the 
consequences of which might be a reproach to the court. The 
only safe and true rule, in my judgment, is the one adopted in 
Eodgers v. Bodgers; and I see no reason for confining its applica- 
tion to the case of an injunction bill having a writ of injunction 
outstanding. It applies, with equal force, to all cases of sworn 
bills; and I must, therefore, hold that no bill which has been 
sworn to in this court can be amended by striking out the whole 
or any portion of the stating part and recasting it in different 
phraseolog}', with some omissions of former charges, and the addi- 
tion of some new matter. This, instead of being an amendment in 
the technical sense of the term, would be converting it into a new 
bill : and which the complainants can resort to, if they please. 

Other objections have been urged against the present applica- 
tion, namely, that the proposed amendments are not verified by 
the oath of the complainants or of any of them; and also, that 
the complainants have not sworn as to the information (upon which 
the new matter is founded) having come to their knowledge since 
the filing of the original bill. The petition is verified by the 
affidavit of the solicitor only; and no reason is given, why the 
complainants or some one of them have not sworn to it. I am 
strongly inclined to think it is insufficient; and that, on this 
ground alone, the court would be compelled to deny the motion. 
I have thought it my duty, nevertheless, to examine the case and 
to express my opinion upon the other and principal question; and 
the result is, that I cannot give the complainants permission to 
amend, in the way proposed. All I can do upon this application is, 
to let them amend by inserting the corporate name of the Mer- 
cantile Insurance Company in the place of the President and 
Directors: but it must be upon the payment of the costs of op- 
posing this motion. 

The amendment was made accordingly. 
As to the costs of opposing the above motion : 
!Mr. Jacob Barker presented to the Yice-Chancellor. as taxing 
officer a bill of costs on liis own part. His honor decided, he could 



276 Amendments 

not tax Mr. Barker any costs for his opposition, he not being an 
officer of the court: the Revised Statutes having made provision, 
only for fees to "counsellors" and: "solicitors." 2 E. S. 629, 630. 



Thorn v. Germand, ^ JoJins. Ch. (N. Y.) 363. (1820.) 

Motion to amend the bill, by adding new and material charges, 
after issue joined, a rule to produce witnesses, a commission ta 
take testimony sued out, and one witness examined. The petition 
stated, that after issue joined, and while the solicitor for the plain- 
tiffs was preparing to take testimony, the matter proposed to be 
introduced by way of amendment, was discovered. The affidavit, 
as to the above facts, was sworn to by the solicitor for the plaintiffs. 

To oppose the motion, an affidavit of G. B., a third person, was 
produced, stating, that before the filing of the bill he communicated 
to one of the plaintiffs, the material fact proposed' by way of 
amendment viz. the entry of a judgment in the Supreme Court. 

The Chancellor: 

The application should have been for leave to withdraw the 
replication, for the purpose of amending the bill. No amendment 
can be allowed, going to the merits, while the replication remains. 
(1 Atk. 51. 1 Ves. jun. 142. Newland's Pr. 82.) And if that had 
been the motion, the materiality of the amendment, and why the 
matter was not stated before, must have been shown, and satisfac- 
torily explained. {Brown v. Ricketts, 2 Johns. Ch. Eep. 425. 
Turner v. Clialwin, cited in 1 Fowler's Ex. Pr. 113.) 

In this case, it is proved, on the part of the defendants, and it is 
not denied by the plaintiffs, that they, or one of them, knew the 
existence of the matter now sought to be introduced into their bill, 
before the filing of the bill. It is, therefore, not new matter, that 
is to be added by way of amendment, but matter before resting 
in the knowledge of the party. 

There is another fatal objection to the motion. Here has been 
a witness already examined in the cause. If no witness had been 
examined, an amendment, otherwise proper, and when the omission 
was duly accounted for, might have been permitted, for it has been 
permitted after publication. (Hastings v. Gregory, cited in W]H. 
PI. 258. and 1 Fowler's Ex. Pr. 111.) But after the examination 



Dexter v. Arnold 277 

of witnesses, the pleadings cannot be altered or amenaed, except 
under very special circumstances, or in consequence of some subse- 
quent event, unless it be for the sole purjwse of adding parties. 
This is the established rule of practice on the subject. (Mitf. PI. 
258, 259.) The only course for the plaintiff, in these cases, when 
he cannot have permission to alter his original bill by amendment, 
is to apply for leave to file a supplemental bill. {Shephard v. 
Merril 3 Johns. Ch. Eep. 423.) 

Motion denied with costs. 



Bill of Review. 
Dexter v. Arnold, 5 Mason, 303. (1829.) 

Petition to file a bill for the purpose of obtaining a review of 
a decree, rendered in this Court at a former term, in the case of 
Edward Dexter v. Thomas Arnold. (See ante. Vol. III. p. 284.) 

The original bill, filed at the November Term, 1821, charged 
Thomas Arnold, as surviving partner, joint owner, trustee, and 
agent of his brother Jonathan Arnold, and as administrator upon 
his estate. Upon the bill, answer, and exhibits, an interlocutory 
decree passed, for the defendant to account upon oath, with di- 
rections to the master as to the mode of taking an account, and 
allowing the plaintiff to surcharge and falsify the stated accounts 
exhibited by the defendant. A report was made by the master 
at the June Term, 1823, and a final decree entered for the plain- 
tiff at the following Xovember Term, for five hundred dollars 
sixty-six and a half cents. 

The grounds, presented by the petition for a review of that 
decree, were, the discovery of new facts showing, that several sums 
of money had come into the hands of the defenda-nt, belonging 
to Jonathan Arnold, which were not entered in Thomas Arnold's 
accounts, nor allowed by the master, and that several claims, made 
by Thomas Arnold and allowed by the master, were without foun- 
dation and erroneous. 

Story, J.: 

The present is a somewhat novel proceeding in this Circuit ; and 
I am not aware, that in any other Circuit of the United States, 



278 Bill of Eeview 

any general course of practice has prevailed, which would super- 
cede the necessity of acting upon this, as a case of first impression, 
to be decided upon the general principles of Courts of Equity. 

It comes before the Court upon a petition for leave to file a 
bill of review of a decree rendered in this Court at November 
Term, 1823, principally upon the ground of a discovery of new 
matters of fact. The petition was filed at November Term, 1837, 
and affidavits have been read in support of it. Counter affidavits 
have also been admitted on the other side, not for the purpose of 
investigating or absolutely deciding upon the truth of the state- 
ments in the petition ; but to present, in a more exact shape, some 
of the circumstances growing out of the original proceedings, 
which may assist the Court in the preliminary discussion, whether 
leave ought to be granted to file the bill of review. This course, 
though not very common, is, as I conceive, perfectly within the 
range of the authority of the Court ;^ and may be indispensable 
for a just exercise of its functions, in granting or withholding the 
review. If, indeed, it were doubtful, in case the bill of review 
should be allowed, whether the defendants could by plea or answer 
traverse the allegation in such bill, that the matter of fact is new, 
I should not hesitate to inquire, in the most ample manner, into 
the truth of such allegation, before the bill was granted, in order 
to prevent gross injustice. But as every such bill of review must 
contain an allegation, that the matter of fact is new, it seems to 
me clear upon principle, that, as it is vital to the relief, it is 
transversable by plea or answer, and must be proved, if not ad- 
mitted at the hearing. In Hanhury v. Stevens (178-1), cited by 
Lord Redesdale (Redesd. PI. Eq. 80) [3d edition, 70], the Court 
is reported to have held that doctrine. The case of Lewcllen v. 
Mack worth (2 Atk. R. 40; Barnard, Ch. R. 445), though very 
imperfectly, and, as I should think, inaccurately reported, seems 
to me to support the same conclusion. It has been relied on by 
the best text writers for that purpose.^ Lord Redesdale, in his 
original work on Equity Pleadings (Redes. Eq. PI. 80, 2d edition), 
stated the point, as one which may be doubted; but upon prin- 
ciple I cannot see, how that can well be. And in the last edition, 

*See Livingston v. Hitbbs, 3 Johns. Ch. R. 124; Norris v. Lc Neve, 3 
Atk 2^ 

2Rerlesd. PI. Eq. 231 (3d edition); Coop. Eq. PI. 305; Montague, Eq. 
PI. 335, note ; Id. 336 ; 2 Montague, Eq. PI. 227, Note 100. 



Dexter v. Arnold 279 

(the third), revised by his Lordship, I find that he has questioned 
the propriety of such a doubt.-"^ 

Before I proceed to consider the particular grounds of the 
present petition, it may be well to glance at some of the regula- 
tions, which govern Courts of Equity in relation to bills of review, 
that we may be better enabled to judge of their application to 
the Courts of the United States. The ordinance of Lord Bacon 
constitutes the foundation of the system, and has never been de- 
parted horn. It is as follows: "j^o decree shall be reversed, 
altered, or explained, being once under the great seojl, but upon a 
bill of review. And no bill of review shall be admitted, except 
it contain either error in law, appearing in the tody of the decree, 
without further examination of matters of fact, or some new mat- 
ter, which hath arisen after the decree, and not any new proof, 
ivhich might have been used, when the decree was made, j^ever- 
theless, upon new proof that is come to light after the decree 
made, and could not possiVIy have been used at the time when the 
decree passed, a bill of review may be grounded by the special 
license of the Court, and not otherwise." ^ 

A bill of review, therefore, lies only, when the decree has 
been enrolled under the great seal in chancery. If it has not 
been so enrolled, then for error of law apparent upon the decree 
the remedy is by a petition for a re-hearing.^ But if the ground 
of the bill is new matter, discovered since the decree, then the 
remedy is by a supplemental bill in the nature of a bill of review, 
and a petition for a re-hearing, which are allowed by special license 
of the Court.*' This distinction between a bill of review and a 
bill in the nature of a bill of review, though important in England, 
is not felt in the practice of the Courts of the United States, and 
perhaps rarely in any of the State Courts of Equity in the Union. 
I take it to be clear, that in the Courts of the United States all 
decrees as well as judgments are matters of record, and are deemed 
to be enrolled as of the Term, in which they are passed. So that 
the appropriate remedy is by a bill of review. 

3Redesd. PI. Eq. 70 (t,<\ edition). 

*Beame's Orders in Chancery, i. 

^Pcrry v. PhcUps, 17 Vez. 171, 178. 

«Redesd. Eq. PI. 65. [78] 81 : Coop. Eq. PI. 88. 89. 90. 91 ; Beame's Or- 
ders m Chan. 2 and 3. notes; Sheffield v. Duchess of Buckingham. 1 West. 
R. 682; Montag. PI. Eq. ch. 12, p. 330; Norris v. LeXeve, 3 Atk. 26; Perry 
V. Phclips. 17 Vez. 173; Blake v. Foster, 2 B. & Beatty, 457, 460. 



280 Bill of Review 

In regard to errors of law, apparent upon the face of the de- 
cree, the established doctrine is, that you cannot look into the 
evidence in the case in order to show the decree to be erroneous 
in its statement of the facts. That is the proper office of the 
Court upon an appeal. But taking the facts to be, as they are 
stated to be on the face of the decree, you must show, that the 
Court have erred in point of law.'^ If, therefore, the decree do 
not contain a statement of the material facts, on which the de- 
cree proceeds, it is plain, that there can be no relief by a bill of 
review, but only by an appeal to some superior tribunal. It is 
on this account, that in England decrees are usually drawn up 
with a special statement of, or reference to, the material grounds 
of fact for the decree.^ In the Courts of the United States the 
decrees are usually general. In England the decree embodies 
the substance of the bill, pleadings, and answers; in the Courts 
of the United States the decree usually contains a mere reference 
to the antecedent proceedings without embodying them. But for 
the purpose of examining all errors of law, the bill, answers, and 
other proceedings are, in our practice, as much a part of the record 
before the Court, as the decree itself ; for it is only by a comparison 
with the former, that the correctness of the latter can be ascer- 
tained. 

In regard to new matter, there are several considerations deserv- 
ing attention. In the first place the new matter must be rele- 
vant and material, and such, as if known, might probably have 
produced a different determination.^ In other words, it must be 
new matter to prove what was before in issue, and not to prove 
a title not before in issue ;i^ not to make a new case, but to 
establish the old one. In the next place the new matter must 
have come to the knowledge of the party since the period, in 
which it could have been used in the cause at the original hear- 
ing. Lord Bacon's ordinance says in one part it must be, "after 

"^Mellish V. Williams, i Vern. R. i66; Cranhorne v. Dclahay, 2 Freem. 
R. 169; Comhs V. Proivd, 1 Ch. Cas. 54; S. C. 2 Freem. R. 181 ; 3 Rep- Ch. 
18; Hard. R. 174; Perry v. Phelips, 17 Vez. 173; O'Brien v. Conner, 2 B. 
& Beatt. 146, 154. 

^Conibs V. Prozvd, i Ch. Cas. 54; Brend v. Brcnd, i Vern. R. 214; S. C. 
2. Ch. Cas. 161; Bonham v. Newcomb, 1 Vern. R. 216; O'Brien v. Conner, 
2 B. & Beatt. 146, 154. 

^Bennett v. Lee, 2 Atk. 529; O'Brien v. Connor, 2 B. & Beatt. 155; 
Portsmouth v. EtHns^hain, i Vez. 429. 

i^Coop. Eq. PI. 91; Patterson v. Slaughter, Ambler R. 292; Young v. 
Keighley, 16 Vez. 348 ; Blake v. Foster, 2 B. & Beatt. 457, 462. 



Dexter v. Arnold 281 

the decree:" but that seems corrected by the subsequent words, 
"and could not possibly have been used at the time when the 
decree passed/' which point to the period of publication. Lord 
Hardwicke is reported to have said, that the words of Lord Bacon 
are dark ; but that the construction has been, that the new matter 
must have come to the knowledge of the i>arty after publication 
passed {Paterson v. tilaughier. Ambler, E. 293). The same doc- 
trine was held in N orris v. LeNeve (3 Atk. E. 25, 34), and has 
been constantly adhered to since. A qualification of the rule 
quite as important and instructive is, that the matter must not 
only be new, but that it must be such as that the party, by the 
use of reasonable diligence, could not have known; for if there 
be any laches or negligence in this respect, that destroys the title 
to the relief. That doctrine was expounded and adhered to by 
Lord Eldon in Young v. Keighley (16 Yez. 348), and was acted 
uix>n by Lord Manners in Barrington v. O'Brien (2 B. & Beatt. 
140), and Blake v. Foster (2 B. & Beatrt. 457, 461). It was fully 
recognized by Mr. Chancellor Kent, and received the sanction of 
his high authority in Wiser v. BlacUey (2 Johns. Ch. E. 488), 
and Barrow v. Bliinelander (3 Johns. Ch. E. 120). And in the 
very recent case of Bingham v. Dawson (3 Jac. & Walk. 243), 
Lord Eldon infused into it additional vigor. 

Upon another point perhaps there is not a uniformity of opinion 
in the authorities. I allude to the distinction taken in an anony- 
mous case in 2 Freem. Eep. 31, where the Chancellor said, that 
"where a matter of fact was particularly in issue before the for- 
mer hearing, though you have new proof of that matter, upon that 
you shall never have a bill of review. But where a new fact is 
alleged, that was not at the former hearing, there it may be a 
ground for a bill of review." Now, assuming that under certain 
circumstances new matter, not evidence, that is, not in issue, in the 
original cause, but clearly demonstrating error in the decree, may 
support a bill of review, if it is the only mode of obtaining re- 
lief /^ still it must be admitted, that the general rule is, that the 
new matter must be such as is relevant to the original case in 
issue. Lord Hardwicke, in Xorris v. Le Neve (3 Atk. 33, 35), 

^^SecNorrisy.LcNcve, 3 Atk. 33, 35; Roberts v. Kincslcv. i Vez. 238; 
Earl of Portsmouth v. Lord EfRugham. i Vez. 4^9; Redesdalc, Eq PI 67 
&c. (last edition.) : i Montag. PI. Eq. 332. 2>3}.\ Wilson v. Jl'cbb. 2 Cox, 3; 
Staiidisli V. r<adlcy, 2 Atk. 177; see also Lord Redesdale's Observations in 
his third edition of his Equity Pleadings, p. 67. 



283 Bill of Eeview 

is reiDorted to have admitted, that a bill of review might be 
founded upon new matter not at all in issue in the former cause, 
which seems con^trary to his opinion in Patterso?i v. Slaughter 
(Ambler, 293),^^ or upon matter, which was in issue, but dis- 
covered since the hearing. But the very point in 2 Freeman, 31 
(if I rightly underetand it), is, that a newly discovered fact is 
ground for a bill; but not newly discovered evidence in proof of 
any fact already in issue. This seems to me at variance witli 
Lord Bacon's ordinance, for it is there said, that there may be a 
review upon "new matter, which hath arisen in time after the 
decree," and also "upon new proof, that has come to light after 
the decree made, and could not possibly have been used at the 
time when the decree passed." It is also contrary to what Lord 
Hardwicke held in the cases cited from 3 Atk. 33, and Ambler, 
293. Lord Eldon, in Young v. Keighley (16 Vez. 348, 350), 
said, "The ground (of a bill of review) is error apparent on the 
face of the decree, or new evidence of a fact materially pressing 
upon the decree, and discovered at least after publication in the 
cause. If the fact had been known before publication, though 
some contradiction appears in the cases, there is no a'uthority, 
that new evidence would not be sufficient ground." That was 
also the opinion of Lord Manners in Blalce v. Foster (2 B. & 
Beatt. 457). Mr. Chamcellor Kent, in Livingston v. HuhhSj 
(3 Johns. Ch. 124), adopted the like conclusion; and he seemed 
to think, that such new evidence must not be a mere accumula- 
tion of witnesses to the same fact ; but some stringent written evi- 
dence or newly discovered papers. Gilbert, in his Forum Eo- 
manum, ch. 10, p. 186, leans to the same limitation, for he says, 
that in bills of review, "they can examine to nothing, that was 
in the original cause, unless it be matter happening subsequent, 
which was not before in issue, or upon matter of record or writing 
not known before, for if the Court should give them leave to 
enter into proofs upon the same points that were in issue, that 
would be under the same mischief as the examination of wit- 
nesses after publication, and an inlet into manifest perjury." i*** 

i2See also Young v. Keighley, i6 Vez. 348, 354; Blake v. Foster, 2 B. & 
Beatt. 457, 462. 

^'See also Barton, Eq. 216; Tovers v. Young, Prec. Ch. 193; Taylor V. 
Sharp, 3 P. Will. 371 ; Standish v. Radlcy, 2 Atk. 177; Chambers v. Green- 
hill, 2 Chan. Rep. 66; Thomas v. Harvic's Heirs, 10 Whcaton, R. 146. 



Dexter v. Arnold 283 

There is much good sense in such a distinction, operating upon 
the discretion of the Court in refusing a bill of review, and I 
should be glad to know, that it has always been adhered to. It 
is certain, that cumulative written evidence has been admitted; 
and even written evidence to contradict the testimony of a wit- 
ness. That was the case of Attorney General v. Turner 
(Ambler, 587). Willati v. Willun (IG Yez. 72, 88) supposes, 
that new testimony of witnesses may be admissible. If it be ad- 
missible (upon which I am not called to decide), it ought to be 
received with extreme caution, and only when it is of such a 
nature as ought to be decisive proof. There is so much of just 
reasoning in the opinion of the Court of Appeals of Kentucky 
on this subject, that I should hesitate long before I should act 
against it.i'* 

In the next place it is most material to state, that the granting 
of such a bill of review is not a matter of right, but of sound dis- 
cretion in the Court.^^ It may be refused, therefore, although 
the facts if admitted would change the decree, where the Court, 
looking to all the circumstances, deems it productive of mischief 
to innocent parties, or for any other cause unadvisable. Bennet 
V. Lee (2 Atk. 528), Wilson v. Wehh (2 Cox, 3), and Young 
V. Keigliley (16 Vez. 348), are strong exemplifications of the 
principle. 

These are the principal considerations, which appear to me 
useful to be brought into view upon the present occasion. Let 
us now advert to the grounds upon which the petition is framed, 
and see how far any are applicable to them. 

Tlie original bill was brought against Thomas Arnold (whose 
administrator is now before the Court), for an account and set- 
tlement of his brother Jonathan Arnold's estate, upon which he 
had administered. The case is reported in the third volume of 
!^[r. Mason's Ecports, page 284, and I refer to that for a sum- 
mar}' of the proceedings and final decree. 

In preferring the present petition, the proper course of pro- 
ceeding has been entirely mistaken. The present counsel for 
the petitioner is not responsible for those proceedings, they hav- 

"Sce Rcspass v. McClauahan. Hardin, Ky. R. 342; Head v. Head. 3 
Marsh. Kv. R. 121 ; Raitdolfyh's Executors v. Randolph's Executors, i H. 
&. M. 180: 

^■'Sheffield V. Duchess of Buchiu}:hatii. 1 West. 682; Norris v. Le Neve, 
3 .\tk. 33; Gould v. Tattered, 2 Atk. 533. 



384 Bill of Review 

ing taken place before he came into the cause. A petition for 
leave to file a bill of review for newly discovered matter should 
contain in itself an abstract of the former proceedings, the bill, 
answers, decree, &c. and should then specifically state what the 
newly discovered matter is, and when it first came to the party's 
knowledge, and how it bears on the decree, that the Court may 
see its relevancy and the propriety of allowing it.^^ The present 
petition, in its original form, contained nothing of this sort, but 
referred to an accompanying bill of review, as the one, which it 
asked leave to file, and then simply affirmed the facts stated in 
it to be true. This was sufficiently irregular. But upon looking 
into this bill of review the grounds of error are stated in a very 
loose manner, and in so general a form as to be quite inad- 
missible. 

The first error assigned is in matter of law, and it is, that 
Thomas Arnold, the administrator, ought to have been charged 
with interest upon all sums of money, which he had received as 
administrator, because the said sums were used by him. The 
master in his report had declined to allow interest; and upon an 
exception taken the Court confirmed his report on tliis point. I 
see no reason for changing the decree on this point, for the rea- 
sons stated in the cause in 3 Mason, 288, 290; and there is no 
pretence to say, that there is any such proof of the use of the 
money in the report of the master, as justifies a different con- 
clusion. There is no error in this respect apparent on the face of 
the master's report, or the decree. The allowance or disallow- 
ance of interest rests very much upon circumstances, and slight 
errors in this respect are not always held fatal.^'' There is no 
error apparent, therefore, on which a review ought to be granted. 
The next ground assigned is, that Thomas Arnold did receive 
large sums of money and other property, which he has not ac- 
counted for before the master, and for which he ought to ac- 
count; and that since the decree, the petitioner hath discovered 
new and further evidence in relation thereto, which would have 
materially changed the report of the master and the decree. 
Tlie petition does not state what the new evidence is, nor when 
discovered, and it is quite too vague for any order of the Court. 
The bill then proceeds, very irregularly, to require, that the ad- 

i®Coop. Eq. PI. 92. 

"See Gould v. Tancred, 2 Atk. 533. 



Dexter v. Arnold 285 

ministrator of Thomas Arnold should answer certain interroga- 
tories as to the cargoes of the ship Friendship. It then states, that 
Thomas Arnold received six shares in the Tennessee Land Com- 
pany; and that he received 8,000 dollars on a policy of insurance 
on the brig Friendship; and that he received large consignments 
of property from Vincent Gray in Cuba in bills of exchange, &c. 
belonging to Jonathan's estate; and finally, that he received 
divers other large sums of money as agent of Jonathan. Now, 
it must be manifest, that upon allegations so general and indis- 
tinct no bill of review would lie. Here is no assertion of newly 
discovered evidence to maintain one. Such a bill, so framed, 
ought never to be allowed by a Court acting upon the correct 
principles of Chancery jurisdiction. 

Afterwards, an amendment of this bill of review was filed, con- 
taining more distinct specifications of new matter, most of which, 
however, as I shall have occasion to notice hereafter, are open to 
the same objections as those already stated. 

But the radical objection to both bills is, that they are im- 
properly introduced into the cause at all. A bill of review can only 
be filed after it is allowed by the Court, and upon the very 
grounds allowed by the Court. The preliminary application by 
petition to file it should state the new matter shortly, distinctly, 
and exactly, so that the Court may see how it presses on the 
original cause; and it is not i>ermissible to load it with charges 
and allegations, as in an original seeking bill in equity. In the 
sense of a Court of Chancery there is not before this Court any 
sufficient petition, upon which it can act. 

But as the proceeding is a novelty in this Circuit, much indul- 
gence ought to be allowed to the original counsel in the cause 
(for the present counsel is not at all chargeable) for irregulari- 
ties of this nature, upon the first presentation of the practice. I 
advert to the posture of the cause, therefore, not so much with 
an intention to subject it to close criticism, as for the purpose of 
declaring, that, even if I could gather from the papers, that there 
is matter, upon which a bill of review would lie, it is not before 
the Court in such a shape, that the Court could judicially pass 
an order of allowance. 

Tlie case has, however, been argued, aiid with great ability, 
upon its merits; and waiving for the present any further refer- 



286 Bill of Review 

ence to the form of the proceedings, I will proceed to the con- 
sideration of the points made at the bar. 

The first point is one made by the defendant, and being pre- 
liminary in its nature, must be disposed of before the plaintiff 
can be further heard. It is said to be a rule in equity, that where 
a party has less decreed to him than he thinks himself entitled 
to, he cannot bring a bill of review ; for that lies only in favor of 
a party against whom there is a decree. For this the opinion of 
elementary writers,!^ and the case of Glover v. Partington (2 
Freeman E. 183; S. C. 2 Eq. Abrid. 17-i), is cited. The 
case, as here reported, certainly supports the doctrine. But it 
appears to me, that, if the doctrine is correct, it is so only in 
cases, where there is no erroT apparent on the face of the decree, 
and no newly discovered matter to support a bill of review, for 
then the proper remedy is by appeal. If there be no such rem- 
edy by appeal, but only by bill of review, it would be strange, if 
a material error could not be redressed upon such a bill by the 
party to whom it had been injurious; that if a man had 10,000 
dollars due him, and had a decree for 100 dollars, he was con- 
clusively bound by an error of the Court. The decision, reported 
in 2 Freem. R. 182, was made by the Master of the Rolls, who 
allowed the demurrer; but from the report of the same case 
in 1 Ch. Cas. 51, it appears, that it was afterwards re-heard be- 
fore the Lord Chancellor and Baron Rainsf ord ; and the demurrer 
was overruled?-^ So that the final decision was against the doc- 
trine for which it is now cited. And Lord Nottingham, a few 
years afterwards, in Vandebende v. Levingston (3 Swanst. E. 
625), resolved, that the plaintiff may have a bill of review to 
review a decree made for himself, if it be less beneficial to him 
than in truth it ought to have been. We may then dismiss this 
objection. 

We may now advance to the examination of the points made 
by the petitioner in support of his petition for a review, assuming 
that the amended bill of review is to be received, pro hoc vice, 
as such a petition. I have already stated, that it is utterly de- 
fective in the essential ingredients of such a petition, in not stat- 
ing with exactness the nature of the new evidence, and when it 
was first discovered. It is not sufficient to say, that the petitioner 

182 Madd. Pr. 412; i Harris Pr. 86. 

i»See S. C. cited Com. Dig. Chancery ; G. to the same effect. 



Dexter v. Arnold 287 

expects to prove error in this or that respect: or that he has 
discovered evidence, which he hopes will establish this or that 
fact. But he must state the exact nature and form of the evi- 
dence itself, and when discovered. If written evidence, it must 
be stated, and its direct bearing shown. If of witnesses, what 
facts the witnesses will prove; and when the party first knew 
the nature of their testimony. It is impossible otherwise for the 
Court to judge, whether the evidence is decisive, or is merely 
presumptive or cumulative; whether it goes vitally to the case, 
and disproves it, or only lets in some new matter, confirmatory 
or explanatory of the transactions in the former decree. The 
party must go further, and establish, that he could not, by reason- 
able diligence before the decree, have procured the evidence. 
Now, in every one of these particulars, the amended bill, quasi 
a petition, is extremely deficient. I have looked it over care- 
fully, and cannot find, that it points out a single written paper, 
which disproves the original case, or names a single witness, 
whose testimony, if admitted, would overturn it. It deals alto- 
gether in general allegations, that certain things are expected to 
be proved; and, like an original bill, proceeds to ask a discovery 
from the defendant of letters and papers in her possession as ad- 
ministrator, relative thereto. There are indeed, in the accompany- 
ing affidavits, some papers produced and relied on ; but they cannot 
supply the defects of the original petition. 

1. The first charge is in effect, that Thomas Arnold, as ad- 
ministrator of Jonathan Arnold, received certain property from 
Vincent Gray in Cuba, belonging to Jonathan's estate, which he 
has never inventoried or accounted for. The specifications under 
this head are, (1.) The receipt of -10 boxes of sugar, upon which 
charges were paid out of Jonathan's estate, amounting to $190: 
(2.) The remittance of a bill to Thomas Arnold, drawn by Andrew 
Davis on \Yilliam Davis, Philadelphia, for $1222: (3.) The re- 
ceipt by Captain Mathewson of $500. All these transactions took 
place in the year 1808, Jonathan having died in June, 1807. 

Now, the original bill charged a partnership between Jona- 
than and Thomas, and asked for an account and settlement of 
the partnership concerns, as well as of the administration. After 
the answer it was referred to a master to take the accounts, and 
he made a report accordingly, after hearing the parties many 
times. In the hearing before the master, the accounts with Vin- 



2g8 Bill of Eeview 

cent Gray were in controversy between the parties, and Thomas 
Arnold was interrogated as to the whole subject, and made his 
disclosures. So that the existence of an account with Gray, 
and the dispute, as to the receipts from him on account of Jona- 
than's estate, were matter of examination before the master. 
There is no pretence, that the residence of Gray was not well 
known; or that the plaintiff could not at that time, by reason- 
able dihgence, have obtained his testimony, if he had desired it. 
He does not show, that he made any effort to obtain it; and if he 
had, the very papers now produced would have been obtained. 
What then is the posture of the case? The plaintiff goes on to 
a decree without seeking for evidence, though within liis reach, 
and contents himself with such explanations as the defendant then 
gave; and now, after the lapse of several years, the defendant 
being dead, asks this Court to grant him a bill of review for 
errors in the account, which ordinary diligence would have recti- 
fied at that very time. If such a course should be allowed, it 
would furnish a perfect immunity for the grossest negligence. 
According to my understanding of the principles, upon which 
bills of review are granted, this Court, under such circumstances, 
is not at liberty to grant it. In Bingliam v. Dawson (3 Jac. & 
Walk. 243), Lord Eldon refused to allow a bill of review under 
far less cogent circumstances, deeming it a most mischievous prac- 
tice; and Mr. Chancellor Kent acted most deliberately to the 
same effect in Livingston v. Hubls (3 Johns. Ch. R. 124). 

But as to the matter of fact; Mr. Gray's letters show, that the 
40 boxes of sugar belonged to Thomas Arnold, and not to Jonathan 
Arnold, thus establishing the incorrectness of this part of the peti- 
tioner's case, and leaving only the $190 in his favor. Then, as to 
the bill on Davis ; Thomas Arnold, on his examination before the 
master, expressly stated, that it had never been paid, Davis being 
insolvent. And there is not a tittle of new evidence, now offered, 
to show that he did receive it. It is therefore a mere effort to re- 
hear the original cause on this point. Then, as to the 500 dollars 
received by Mathewson. In the report 270 dollars is credited to 
Jonathan's estate on this account; and the only question is, 
whether the remaining 230 dollars ought to have been credited. 
Mr. Gray, in his letters (which, by the by, are mere statements 
now made, and not originals written at the time of the transactions, 
and are not sworn to by him), does not pretend to any absolute 



Dexter v. Arnold 289 

certaint)^, as to the parties to whom the money belonged. He says 
in that of the 14th of April, 182 G, that he had received of De la 
Motte $1,984, part of which he remitted to Thomas Arnold by the 
bill drawn on Davis. He did not then recollect how, or when, the 
balance \v&& remitted. In his letter of the 14th of April, 1827, he 
states, that on exami-ning his old accounts, &c., he finds, that he 
passed to the credit of the ship Tyre, Mathewson, master, for 
account of Thomas Arnold, in July 1808, $230, and in September 
of the same year, $270, in all 500 dollars; and he presumes, that 
this was the balance then collected. In his letter of the 27th of 
February, 1828, he adds, that the money, collected of De la Motte, 
belonged to Jonathan Arnold, and that the bill on Davis, the $500, 
the $190, and his commissions, made up the whole sum. Such is 
the explanation given by Mr. Gray, at the distance of 20 years after 
the original transactions; and it is too much to say, that his 
recollections, after such a length of time, ought to overturn the 
solemn proceedings before the master. It is, at best, testimony 
only of a presumptive character, cumulative in its nature, to a 
litigated fact, and, if admissible at all, as a ground for a review, 
is open to the suggestion of possible mistake. But it does so hap- 
pen, that there is before the Court a letter of Mr. Gray to Thomas 
Arnold, written on the 12th of April, 1808 (and which, there is 
much to believe, was, among other papers from him, laid before 
the master upon the hearing), which may fairly lead to the belief, 
that Gray is now mistaken in supposing, that the money belonged 
exclusively to Jonathan Arnold. That letter begins by saying, 
"I have liquidated your accounts with Don Pablo de Motta, and 
taken the acceptance on the widow P. & H. for the balance due, 
&c., for 2088 dollars 3^." It then goes on to state, that Mr. 
Barker, of Charleston, has requested him to pay into his hands 
the money received from De la Motte, which he declined. It then 
adds, "On examination of the accounts, if any thing should appear 
to be due to Mr. Barker over and above the 1000 dollars heretofore 
received, I will remit it to him, or pay it into the hands of Mr. 
Bower. However, as you know better than I do, what sum ought 
to be paid to Mr. Barker, I wish you to settle the amount with 
him." If any thing is clear, from this language, it is, that Mr. 
Barker had, or was supposed to have, an interest in this very fund, 
and that Thomas Arnold was called upon to discharge it. And 
the first words in the letter, "your accounts," seem to indicate, that 

19 



290 Bill of Review 

Thomas Arnold also might have a personal interest in the fund. 
If Mr. Barker had an interest, what proof is there, that it did 
not amount to the 230 dollars, now sought to be credied in Jona- 
than's account? After this, what safe reliance can be placed upon 
Mr. Gray's recollection as to the $190 being paid out of the funds 
of Jonathan Arnold in his hands ? It is certain, that, at that very 
time, he was collecting money for Thomas Arnold. Tlie letter of 
instructions to Mathewson, in 1808, shows, that money was to be 
collected on the personal account of Thomas Arnold, as well as on 
account of Jonathan Arnold's estate. And Mr. Gray is certainly 
mistaken in supposing it was credited to the brig Tyre ; for it was 
credited to the brig Perseverance. I do not mean to cast the slight- 
est imputation upon this gentleman's credit. I do not doubt, that 
he relates the transactions, as he now supposes them to have been. 
But with the most perfect respect for his veracity, it is not too 
much to say, that, after such a length of time, no Court would be 
safe to grant a bill of review upon such proofs, at once inconclusive 
and unsatisfactory. It is to be remembered, that the case stands 
here very differently from what it would on an original bill. Here, 
the onus prolan di is on the petitioner to establish the error, and 
it must be proved by newly discovered evidence or facts, to entitle 
him to a review. Great reliance has been placed, at the argument, 
upon Moore v. Moore, 2 Vez. 596, as a case of relief founded upon 
analogous principles. Without doubt, if a substantial error is con- 
clusively ascertained by newly discovered evidence, that furnishes 
a ground for a review. But that case was not like the present. 
There John Moore was made a party to a bill for an account, as 
one of the executors of C. M. ; and the plaintiffs insisted, that he 
acted as executor. That was not proved; and therefore he was 
not decreed to account as executor, and he refused to account. 
Afterwards it was discovered, that he had received £2500 mortgage 
money of the testator's estate. Lord Hardwicke thought this was 
proper matter for review ; and that Moore ought to have disclosed 
the fact on his original answer, although he had not acted gener- 
ally as executor. Xow, there was nothing in this case to put the 
plaintiffs upon any inquiry as to any mortgage. They asked for an 
account generally of the testator's estate from his executors, in 
order to have a decree for their legacies. It would have been dif- 
ferent, if the very mortgage had been in controversy between the 
parties, and brought out upon the account. 



Dexter v. Arnold 291 

2. The next charge is, that in the account settled on the 31st of 
March, 1801, between Thomas Arnold and Jonathan Arnold, there 
was debited an item for one half of tlie premium on the schooner 
Fame, on her voyage home, of 180 dollars and 12 dollars interest, 
in all 192 dollars; which it is now said is erroneous, because no 
such insurance was made, or premium paid, the vessel and her 
cargo being then insured out and home, by the Providence Insur- 
ance Compan}^, for more than the value of both. One of the 
charges, in the original bill, was of errors in the settlement of this 
very account; and upon the hearing, the Court decreed, that the 
account should stand, subject to any surcharge and falsification 
by the plaintiff. Of course, this item was open for contestation 
before the master. It was confirmed, as to this item, by the mas- 
ter; and if the Court now reviews it, it undertakes, after a lapse 
of 28 years and the death of both parties, to open a settled account 
upon a mere presumption of mistake, founded upon a very im- 
perfect knowledge of the real circumstances. Thomas Arnold 
was liable to examination before the master for every item in his 
account. He might have been inquired of, as to the facts, where 
the insurance was made, and when the premium was paid; and 
as to all other material circumstances. The petitioner waived 
such inquiry in the very case, in which he was keenly on the 
scent to discover errors. It does not appear, that he made any 
inquiry, or was misled by any attempted misrepresentation or 
concealment on this head. If he then used no reasonable diligence 
in the matter, then before him, it must be a strong case to justify 
an interposition of the Court now in his favor. 

But what is the newly discovered evidence to falsify the item? 
It now appears, that by a policy underwritten on the 24th of 
July, 1800, by the Providence Insurance Company; Thomas 
Arnold for Jonathan Arnold, Barker & Lord, and James Schmei- 
bar, caused insurance to be made of 9000 dollars on the schooner 
Fame and cargo, viz. 7000 dollars on the cargo, and 2000 dollars 
on the vessel, from Charleston to j\Iartinico, at and from thence 
to any one port in the United States, at a premium of 17 per 
'cent. ; with liberty to proceed from Martinico to any other port 
or ports in the West Indies, by adding three per cent, for every 
English windward port, and five per cent, for every other port. 
Upon the back of the office copy of the policy is the following 
indorsement. "October 26. Received information of her safe 



292 Bill of Keview 

arrival at Charleston; touched at Trinidad and St. Thomas; for 
which add 8 per cent, to the premium. Return 9 per cent, on 

$ deficiency of cargo from St. Thomas." This indorsement 

was doubtless made by the proper officer of the Insurance Com- 
pany ; but what settlement was actually made does not appear by 
any competent evidence. It appears, however, from William 
Holroyd's papers, that Barker & Lord were charged in settle- 
ment by Thomas Arnold with one half of the premium of the 
cargo of the Fame, $986.48; and the other half of the premium 
on the same cargo, viz. $986.48, was charged to Jonathan Arnold, 
in the above account, settled in March, 1801. It is impossible, 
I think, from such facts alone, to ascertain, whether the charge 
of the 192 dollars for premium on the vessel liome was correct or 
not; non constat, that there might not have been another policy, 
on which it was paid. The very terms of the charge suppose it 
to be a premium, not for the whole voyage, but for the return 
voyage only. Besides, it does not appear from this policy, or 
the other papers, that Barker & Lord had any interest in the 
vessel. The charge against them is for premium on cargo only; 
and if they had had any interest in the vessel, and the sum 
charged included both, it would probaibly have been mentioned. 
The very circumstance, that there is a distinct charge of the pre- 
mium on the vessel, following that of the cargo, which is stated to 
be settled with William Holroyd, in the account of March, 1801, 
is strong presumptive proof, that Jonathan Arnold was the sole 
owner of the vessel. And ihis is quite compatible with the 
terms of the policy of insurance. And, after all, the conjecture 
of the counsel may be well founded, that the settlement under 
the policy, whatever it was, was by compromise. Who can say, 
after such a length of time, when the transactions are involved 
in so much obscurity, that he now understands them better 
than the parties did at the time, when they were fresh in their 
minds, and were settled in their accounts? There would be, as 
I think, much rashness in such an assertion. But, supposing 
there might be some doubt, is that a ground for unravelling an 
intricate, settled account, after such a lapse of time? Was 
there ever a bill of review maintained under such circumstances, 
especially, when a prior decree had given the party leave to 
surcharge and falsify? In short, can it be endured, that a bill 
of review should be allowed, but upon proofs, which, standing 



Dexter v. Arnold 293 

alone, would overturn the decree, and would be conclusive on the 
point? Ought they not to be direct, plain, unequivocal? 

Tlie next item is a supposed error in the account settled in 
March, 1801, where Jonathan Arnold is charged with the pay- 
ment of $2207.82, principal and interest on his note to Joseph 
Eogers. It is now said, that by newly discovered evidence the 
petitioner can show, that only $1693.95 was in fact paid on that 
account; and for the payment of this, Thomas Arnold had, in 
1798, bills, the property of Jonathan, to the value of £800 ster- 
ling, which he had used and enjoyed the interest of. Many of the 
remarks already made apply with increased force to this item. 
In the first place, there is a settled acknowledgment between the 
parties, that the sum is right, and the note was paid. In the next 
place, as to the bills of exchange. They are duly credited and 
admitted in the same account, as correctly applied. How then 
can we say, that they were used differently from what the parties 
intended? There is no new evidence, as to these bills; and they 
were included in the report of the master. But what is the new 
evidence now suggested as to the item of $2267.82? It is 
simply this. Mr. William Holroyd was agent of some sort for 
Eogers (we do not know how far), and in his books (for he is 
dead) there are now found two credits to Joseph Eogers, one, 
under date of October 5, 1799, of $600, "received from Thomas 
Arnold in part of Jonathan Arnold's note;"' the other under 
date of November 9, of the same year, of "amount of Thomas 
Arnold's note, $1100, deduct discount, $6.05, viz. $1093.95," 
making together the amount of $1693.95. No other credits 
appear on Holroyd's books. Eogers is also dead, and in his 
books no other credits can be found in his accounts with. Hol- 
royd; and what is curious enough, the credit of $600 is stated 
to be "cash in part of T. Arnold's note," and not of Jonathan's. 
And in Eogers's cash account even the whole of these sums is 
not credited. What then is the plain amount of this evidence? 
not, that Thomas Arnold never paid the sum of $2267.82 on 
Jonathan's note; but that the payments cannot be distinctly 
traced, at this distance of time, in either Holroyd's or Eogers's 
books. And suppose they cannot. Is a settled account to be 
opened, because third pei'sons, to whom payments have been made, 
omit to keep correct books, or enter full credits? Is their omission 
to prejudice the rights of others; and to overturn the deliberate 



294 Bill op Eeview 

settlements of parties? Are we to indulge in presumptions, that 
the parties did not know their own concerns, and that there has 
been fraud or mistake, because we cannot now trace back the origin 
of payments acknowledged by them? What proof have we, that 
the sums stated in these books were payments on account of the 
very note charged in the settlement? The payment of $1093.95 
purports to be on Thomas's note; how can we say, that it was on 
Jonathan's? The Court is, then, called upon to re-examine this 
account upon mere surmises and conjectures; and the petitioner 
now demands, that the original note of Jonathan should be proved 
to verify the payment, exactly as if this were an original bill for 
an account, and a discovery. The original bill sought to set aside 
the settled accounts ; leave was given to surcharge and falsify ; and 
after a decree confirming the account, a discovery is sought upon 
new evidence of tlie loosest texture, and most inconclusive nature. 
The evidence, such as it is, was open to the plaintiff at the origi- 
nal hearing, if he had chosen to look for it, and by reasonable 
diligence it might then have been obtained, as well as now. If it 
had been obtained, I think it would have come to nothing. But 
as a foundation of a bill of review it is wholly inadmissible. I 
observe too, that the master states, that this very item was in con- 
troversy before him; and that Holroyd's books were examined 
for the purpose of explaining one or more payments to Rogers 
by Thomas Arnold on Jonathan's account. 

The next item is, that there was an insurance at Malaga, of 
$8000, on the brig Friendship's cargo, from that port to the 
Mediterranean and home; that she was captured in 1797 on the 
voyage home; and that one half of this cargo belonged to Jona- 
than, and therefore half of the insurance ought to be credited to 
him. Now, this very item was not only in controversy before 
the master (as he states), but it was made the subject of a 
special interrogatory in the original bill, and a discovery prayed." 
Thomas Arnold, in his answer, expressly stated, that he had no 
knowledge of any insurance at Malaga; but had been informed, 
that there had been a policy there procured by Captain Proud 
(the master), on the cargo from Malaga to Genoa only; and as 
that risk terminated without loss, and the vessel was captured 
afterwards on her voyage home, he never received anything on 
that insurance. Here, then, the petitioner was bound to use 
reasonable diligence, if he did not choose to rely upon the state- 



Dexter v. Arnold 295 

mcnt in the defendant's answer, and subsequent examination be- 
fore the master. But he never sent to Malaga; and never made 
any search for Captain Proud or his papers. Captain Proud is 
now dead. There is not now tlie slightest proof, that any money 
ever was received from the insurance in Malaga. The petitioner 
now calls upon the other party for a discovery, exactly as he did 
in the original bill; not because any new fact has come to his 
knowledge since the decree; but because he has now discovered 
an old letter, unsigned and unfinished, in the handwriting of 
Captain Proud (which does not appear ever to. have been sent to 
the owners), in which a suggestion is found about insurance made, 
or to be made by him, on cocoa (part of the cargo), up the Straits, 
and advising the owners to procure insurance on the vessel from 
Malaga home. The letter is exceedingly obscure in its terms, and 
it is utterly impossible to ascertain what were the precise terms 
or nature of the insurance; though I should conjecture from its 
language, that it was limited to the cargo from Malaga to Genoa. 
If so, it stands completely in harmony with the original answer, 
and supports it. But if it were otherwise; what ground is here 
laid for a review? The paper, if newly discovered, is not evidence; 
and it establishes no receipt of any money by Thomas Arnold on 
the insurance, which is the material fact. A bill of review is not 
a bill for a discovery ; but a bill founded upon a discovery already 
made of evidence material and decisive to the issue. 

The next charge is, that in the master's report an allowance 
is made for a note of Jonathan Arnold to Minturn & Champlin, 
indorsed by Thomas Arnold, and by him paid to Joseph Jenkins, 
viz. $834,121^; whereas Minturn & Champlin had received 33 
bags of pimento belonging to Jonathan, and had sold the same 
for $253, and applied the proceeds towards the discharge of the 
same note. It is sufficient to say, that there is no proof to this 
effect; nor any newly discovered evidence offered to support the 
statement. Xo reason is pretended, why Minturn & Champlin's 
accounts were not investigated at the original hearing. 

The next charge is, as to the Tennessee Land Company shares, 
owned by Jonathan Arnold, the proceeds of which had been re- 
ceived by Tliomas Arnold. The whole number owned by Jonathan 
was fifteen ; Thomas accounted before the master for nine shares, 
as all received by him. The petitioner had the most ample means, 
by a search in the proper public office at Washington, to have 



296 Bill of Keview 

ascertained the whole amount received by Thomas on the shares, 
if he had used any diligence. The case, therefore, falls precisely 
within the doctrine of Lord Eldon in Bingham v. Daivson (3 Jac. 
& Walk. 243). But the receipt, now produced from the public 
records at Washington, signed by Samuel Dexter, satisfactorily 
establishes, that Jonathan had long before sold the six shares, now 
in controversy, to Dexter. And that was the very explanation 
asserted before the master by Thomas Arnold. There is not a 
shadow of proof, that he ever received on these shares any money, 
which he has not accounted for. 

I pass over the next charge, which respects the £100 note, in- 
cluded in the mortgage on the Paget farm. It was disposed of 
upon an exception of the plaintiff in the former decree, which is 
reported in 3 Mason R. 284, 286. jSTo new evidence on this point 
is pretended. 

The next item is for an allowance made out of Jonathan's 
estate in the master's report of the sum of $4800 and upwards, 
due from Jonathan's estate to the estate of Welcome Arnold, and 
secured by a mortgage given by Jonathan to Tliomas Arnold, as 
administrator of Welcome, and which was allowed him upon his 
agreeing to cancel the mortgage, which he has not done, but 
refused ever afterwards to do. The mortgage appears to have 
been given to Samuel G. Arnold, as attorney of Thomas Arnold 
and Patience Arnold, administrators of Welcome Arnold. I agree, 
that it was the duty of Thomas Arnold to procure a cancellation 
of that mortgage after the credit was allowed, whether he made 
an express promise to do so, or not. If he had a right of retainer, 
as administrator on both estates, he had a right to the credit 
allowed in settling the account. It was not matter of exception, 
at that time, that it was done; and it furnishes no ground of 
review now. The proper remedy is by an original bill to compel 
satisfaction to be entered on the mortgage, and a re-delivery or 
cancellation of it. To such a bill the administratrix of Thomas 
Arnold might be properly made a party, at least for the purpose 
of compelling an application, or re-payment of the sum credited, 
if the mortgage deed is not cancelled, and the credit has not been 
already made to Welcome's estate. If such a suit should be un- 
productive, I do not mean to say, that there might not be circum- 
stances, upon which this Court might give leave for a bill of 
review, in order, that the credit might be struck out, if Jonathan's 



Hill v. Phelps 297 

estate was to sustain a real injury, as if possession under the mort- 
gage was insisted upon, and held at law under the mortgage. At 
present I do no more than say, that the matter now presented 
furnishes no such ground. 

I have thus gone over all the principal grounds for the bill of 
review, supposing them to be before the Court with all due distinct- 
ness and particularity, and in a shape regular and tangible. If I. 
had more leisure I might comment, somewhat more at large, upon 
the principles applicable to this subject. But it being my deliberate 
judgment, that the case is not a fit one for a review, I content 
myself with ordering, that the petition be dismissed with costs. 

The District Judge concurs in this opinion, and therefore let 
the petition be accordingly dismissed. 



Hin v. Phelps, 101 Fed. Rep. 650. (1900.) 

Appeal from the Circuit Court of the United States for the 
Eastern District of xA.rkansas. 

This is an appeal from an order which dismissed a bill of review 
upon demurrer. The bill was filed on April 20, 1898, and sought 
a modification of a decree of the court below rendered on December 
22, 1897. The material facts it set forth were these : On July 3, 
1894, J. M. Phelps and A. C. Phelps made their promissory note 
for $5,927.70 on account of a debt which they owed to the ap- 
pellants. Afterwards A. C. Phelps made his individual note for 
this indebtedness, and induced the appellants, by false representa- 
tions, to accept that note in lieu of the joint note. On June 3, 
1896, the appellants obtained a judgment against A. C. Phelps 
upon this note for $6,881.25, and caused an execution to be issued 
thereon, which was returned nulla bona. Meanwhile A. C. Phelps, 
for the purpose of defrauding the appellants out of their debt, 
made to the appellee Adolph Sloan, as trustee, a deed of trust of 
his lands to secure an alleged indebtedness of $10,279.38 to the 
appellee the Lawrence County Bank, and alleged debts of $1,000 
to each of the appellees F. G. Williams, Mary A. Lester, and J. M. 
Cook ; and the bank, for the purpose of defrauding the appellants, 
of preventing them from collecting their debt, and of covering up 
the land, extended the time of payment of its claim of $10,279.38 
for five years. Tliereupon the appellants brought suit in the court 



298 Bill of Eeview 

below to reinstate the joint note of A. C. Phelps and J. M. 
Phelps in place of the separate note of A. C. Phelps, and to set 
aside the trust deed; and on December 22, 1897, a decree was 
rendered in that suit to the effect that the joint note should be 
substituted for the separate note, and that J. M. Phelps should 
pay it. The evidence in that suit indicated that the deed of trust 
to secure the Lawrence County Bank was made to hinder and 
delay the collection of the appellants' debt, but the court declared 
that as J. M. Phelps was amply solvent, and the decree against him 
would be sufficient to enable the appellants to recover the debt, it 
would not carry the adjudication further than was necessary to 
attain the ends of justice, and for this reason it denied any further 
relief. The appellants prayed an appeal from this decree, but the 
appellees paid off the decree, so that they could not prosecute their 
appeal to a hearing. At the time of the execution of the trust 
deed, A. C. Phelps owed another debt to the appellants, upon 
which they recovered judgment on December 26, 1896, for $58,- 
641.41. On June 18, 1897, $40,708.60 was paid on this judgment, 
and the balance has not been paid. The appellants allege that they 
could not include this latter judgment in their suit without making 
their bill multifarious, and that the decree refusing to set aside 
the deed of trust in that suit is a conclusive adjudication against 
them, and bars a new suit for that purpose upon their second 
judgment; and for this reason they pray that the decree of De- 
cember 22, 1897, be so modified as to adjudge the trust deed to 
Adolph Sloan to have been fraudulent in so far as it undertook 
to secure the payment of the debt to the Lawrence County Bank; 
that the land described in that deed be sold, and the proceeds 
thereof, so far as the interest of the bank is concerned, be applied 
to the pa3Tiient of the second debt to the appellants, or, if this relief 
cannot be granted, that the decree be so modified as to dismiss 
the suit in which it was rendered, without prejudice to the rights 
of the appellants to proceed against the bank and Sloan. 

Sanborn, Circuit Judge, after stating the case as above, de- 
livered the opinion of the court. 

The purpose of a bill of review is to obtain a reversal or modi- 
fication of a final decree. There are but three grounds upon which 
such a bill can be sustained. They are (1) error of law apparent 
on the face of the decree and the pleadings and proceedings upon 
which it is based, exclusive of the evidence; (2) new matter which 



Hill v. Phelps 299 

has arisen since the decree; and (3) newly-discovered evidence, 
which could not have been found and produced, by the use of 
reasonable diligence, before the decree was rendered. No departure 
has ever been made from the rules applicable to such a bill, which 
were declared by Lord Chancellor Bacon, in the first of his ordi- 
nances in chancery, in these words: 

"No decree shall be reversed, altered, or explained, being once 
under the great seal, but upon bill of review. And no bill of review 
shall be admitted, except it contain either error in law, appearing 
in the body of the decree, without further examination of matters 
in fact, or some new matter, which hath arisen in time after the 
decree, and not any new proof, which might have been used, when 
the decree was made. Nevertheless, upon new proof, that is come 
to life after the decree was made, which could not possibly have 
been used at the time when the decree passed, a bill of review may 
be grounded by the special license of the court, and not otherwise." 

Beames, Orders Ch. 1; Story, Eq. PI. § 404; 2 Daniel, PL & 
Prac. p. *1575; Kennedy v. Banh, 49 U. S. 586, 609, 12 L. Ed. 
1209. 

The error in law which will maintain a bill of review must con- 
sist of the violation of some statutory enactment, or of some recog- 
nized or established principle or rule of law or equity, or of the 
settled practice of the court. Error in matter of form or in the 
propriety of a decree, which is not contrary to any statute, rule 
of law, or to the settled practice of the court, is not suflScient to 
maintain a suit to review a final decree. Freeman v. Clay, 2 U. S. 
App. 254, 267, 2 C. C. A. 587, 593, 52 Fed. 1, 7; Hoffman v. 
Pearson, 8 U. S. App. 19, 38, 1 C C. A. 535, 541, 50 Fed. 484, 490. 
Eesort cannot be had to the evidence to discover this error of law. 
It must be apparent from the pleadings, proceedings, and decree, 
without a reference to the evidence, or it will not avail to sustain 
a bill of review. Whiting v. Bank, 13 Pet. 5, 14, 10 L. Ed. 33 ; 
Kennedy v. Banlc, 49 U. S. 586, 609, 12 L. Ed. 1209 ; Putnam v. 
Day, 22 Wall. 60, G6, 22 L. Ed. 764; Buffington v. Harvey, 95 
U. S. 99, 24 L. Ed. 381. The new matter which will authorize a 
review of a final decree must have arisen after its rendition. The 
newly-discovered evidence which may form the basis of such a 
review must be, not only evidence which was not known, but also 
such as could not, with reasonable diligence, have been found be- 
fore the decree was made. City of Omaha v. Fedicl-. 27 U. S. 



300 Bill of Keview 

App. 204, 211, 11 C. C. A. 1, 6, 63 Fed. 1, 6; Bias v. Merle, 4 
Paige, 259, 261; Hetiry v. Insurance Co. (C. C.) 45 Fed. 299, 
303; Story, Eq. PL §§ 338a, 423; 1 Barb. Ch. Prac. 363, 364; 
1 Hoff. Ch. Prac. 398; Post. Fed. Prac. § 188, note 19. 

The sole purpose of the original suit in equity in this case was to 
enforce the collection of the claim of the appellants for the $6,881.25 
evidenced by their judgment of June 3, 1896. In order to accom- 
plish this purpose, they asked that the court would reinstate the 
joint indebtedness of J. M. Phelps and A. C. Phelps in the place of 
the separate debt of A. C. Phelps, upon which that judgment was 
rendered, and that it would set aside the trust deed of the lands of 
Phelps to Sloan, which was made to secure the indebtedness of the 
Lawrence County Bank. The court granted all the relief necessary 
to effect the object of the suit. It substituted the joint debt for the 
separate debt, and adjudged that J. M. Phelps should pay it. He 
did so, and the entire purpose of that litigation had been served. 
The court refused to avoid the trust deed, because J. M. Phelps 
was solvent, and because the relief which it granted was ample, 
without more, to enforce the collection of the only claim which 
appeared in that suit. The bill of review seeks a modification of 
this decree on the sole ground that the failure of the court to grant 
this unnecessary relief may estop the appellants from avoiding this 
trust deed, and thereby enforcing the collection of their second 
claim, evidenced by their judgment of December 26, 1896, which 
was in existence during the entire pendency of their suit in equity 
upon their first claim, but which was neither pleaded, proved, nor 
presented to the court in any way in that suit. There may be some 
doubt whether or not the decree, as it stands, has the effect to estop 
the appellants from avoiding the trust deed, for fraud, in a suit 
brought upon their second claim. While such a suit will be between 
the same parties and those in privity with the same parties named 
in the first suit, it will be upon a different cause of action, and the 
decree in the first suit will operate as an estoppel only upon the 
points and questions which were actually litigated and determined 
in it. Whether or not the fraudulent character of the trust deed, 
as against the second claim of the appellants, was actually raised, 
litigated, and determined in their suit in equity upon their first 
claim, may be the subject of pleading and proof. Board v. 8utliff, 
38 C. C. A. 167, 97 Fed. 270, 274; Cromwen v. 8ac Co., 94 U. S. 
351, 352, 24 L. Ed. 195; Nesbit v. District, 144 U. S. 610, 618, 



Hill v. Phelps 301 

12 Sup. Ct. 746, 36 L. Ed. 562; Board v. Piatt, 49 U. S. App. 
216, 223, 25 C. C. A. 87, 91, 79 Fed. 567, 571. 

Conceding, however, but not deciding, that the decree in the suit 
upon the first claim renders the question whether or not the trust 
deed should be avoided for fraud res adjudicata in a subsequent 
suit for that purpose on the second claim, no ground for review 
or modification of the decree is presented by the allegations of the 
bill before us. There was no error in law in that decree. It fol- 
lowed the pleadings, and determined all the issues which they 
presented. Whether or not it was warranted by the evidence, and 
whether or not the evidence authorized other or further relief, are 
questions that are not open for consideration here, because the error 
that will sustain a bill of review must be apparent upon the plead- 
ings, the proceedings, and the decree, without reference to the evi- 
dence. There was no error in the failure of the court to grant 
more relief than the substitution of the joint debt for the separate 
debt, because it granted ample relief to accomplish the purpose 
of the suit, and because, in the absence of the evidence, which we 
cannot consider, it does not appear that the proofs would have 
sustained any other relief. One cannot successfully assail the decree 
of a court of chancery, which has procured him all the resulting 
benefit he sought, because the court did not make further adjudica- 
tions and grant other relief, which were not necessarj^ to the ac- 
complishment of the purpose which he disclosed to the court. It 
is not error for a court of chancery, which grants sufficient relief 
to enable a complainant to reap all the fruits which he seeks by his 
litigation, to refuse to exercise all its powers and make other and 
unnecessary adjudications. The court granted relief which en- 
forced the collection of the only claim which the complainants 
presented to it. They have received payment of that claim. They 
suffered nothing in that suit from the failure of the court to avoid 
the trust deed, because they could have obtained nothing more if 
it had done so. Courts of equity do not attempt to right wrongs 
at the suit of those who have suffered nothing from them, or to 
grant decrees that can give their suitors no relief. Darragh v. 
Manufacturing Co., 49 U. S. App. 1, 16, 23 C. C. A. 609, 618, 78 
Fed. 7, 16. No error appears in the pleadings, proceedings, or 
decree on account of the fact that the latter may have the effect to 
estop the appellants from collecting their second claim, by avoiding- 
tlie trust deed for fraud, because that claim was not pleaded, proved" 



303 Bill of Eeview 

or presented in the suit upon which the decree is based, and its 
existence was unknown to the court when it rendered its decree. 
As the question of the effect of its decree upon this second claim 
vras not presented to, considered or decided by, the court below 
when it entered its decree, it could not have erred upon that ques- 
tion. The bill of review discloses no error in law in the decree 
which it assails. Nor does the bill disclose any new matter or any 
newly-disoovered evidence which will warrant the relief it seeks. 
The sole ground for that relief is that the decree of December 22, 
1897, estops the appellants from enforcing the collection of their 
judgment of December 26, 1896, by an avoidance of the trust deed 
for fraud. But the debt upon which that judgment is founded 
existed during the entire pendency of the suit in equity upon the 
first claim of the appellants, and all the facts which condition the 
effect of the decree in that suit upon their second claim were as 
well known to the appellants at the time that decree was rendered 
as they ever have been since. Mr. Justice Story, at section 423 of 
his Equity Pleadings, says: 

"If, therefore, the party proceeds to a decree after the discovery 
of the facts upon which the new claim is founded, he will not be 
permitted afterwards to file a supplemental bill in the nature of 
a bill of review, founded on those facts ; for it was his own laches 
not to have brought them forward at an earlier stage of the cause." 

The decree cannot be modified on account of new matter or 
newly-discovered evidence, because the matter set forth in the bill 
existed, and the evidence it pleads was known, before the decree was 
rendered. 

There is another reason why the decree in this case cannot be 
reviewed. It is that the appellees have paid, and the appellants 
have accepted, the entire debt which the decree was rendered to 
enforce. One who accepts the benefits of a verdict, decree, or judg- 
ment is thereby estopped from reviewing it, or from escaping from 
its burdens. Albright v. Oyster, 19 U. S. App. 651, 9 C. C. A. 
173, 60 Fed. 644; Chase v. Driver, 92 Fed. 780, 786, 34 C. C. A. 
668, 674; Brigham City v. ToUec Ranch Co. (C. C. A.) 101 Fed. 
85. The decree below is affirmed. 



Dentox v. Dexton 303 

Ne Exeat. 

Dunham v. Jackson, 1 Paige Cli. (N. Y.) 029. (1829.) 

In this cause the bill of the complainant had been dismissed 
with costs; and the complainant had suspended the proceedings 
to collect the costs by an appeal to the Court of Error. 

The Chancellor: 

The object of the writ of ne exeat is to obtain equitable bail, 
and may be applied for in any stage of the suit. The complainant 
intends to leave the state before the appeal can be determined. 
The defendant is not obliged to follow her to Florida to obtain 
satisfaction of the costs decreed. In Stewart v. Stewart (1 Ball & 
Beatty, 73), a ne exeat was granted against a complainant who 
was about to leave the country before the decree for costs could be 
made effectual against him. 

The ne exeat must be granted in this case unless the complainant 
gives security to abide the final decree. 



Denton v. Denton, 1 Johns. Ch. 36Jt. (1815.) 

The petition of the plaintiff stated, that, in January last, she 
filed her bill against the defendant, setting forth that she was mar- 
ried to the defendant on the 25th of October, 1795, in this state, 
and that they were then, and still are, citizens and residents of 
this state. That on the 20th of April, 1814, the defendant broke 
up housekeeping, though for years before, his annual expenses for 
housekeeping were between 4 and 5,000 dollars. That the defend- 
ant abandoned the plaintiff without home or support, and had since 
treated her with great cruelty and persecution, and denied her all 
support: that she had no means of living: that the defendant 
was a man of large fortune, and threatened to leave the United 
States. And she prayed a writ of ne exeat, and a writ of suppli- 
cavit, to restrain the defendant from disturbing her retreat, and 
for security, and for money to prosecute the suit, and also for a 
weekly or monthly allowance. The bill for a divorce was filed 
but no answer was yet put in. 

The facts stated in the petition were supported by affidavits. 



304 Ne Exeat 

from which it also appeared that the defendant was a man of 
fortune, and worth above 200,000 dollars. 

The Chancellor: 

The bill filed in this ca^use states matter properly cognizable in 
equity. It is as well for alimony as for other relief. The allow- 
ance of a ne exeat, when the husband threatens to leave the state, 
and his wife without any support, is essential to justice, and has 
been granted in like cases. (2 Atk. 210. Amb. 76. Dickens, 154.) 
From what was said in the case of Mix v. Mix, as well as from 
the cases now cited, the rule appears to be, that the wife who is 
under the necessity of carrying on a suit against her husband, or 
of defending one against him, is entitled, as well to a reasonable 
allowance to be paid by the husband for the necessary expenses 
of the suit, as to an allowance for alimony pending the prosecu- 
tion. 

I shall, accordingly, allow the ne exeat, and direct security under 
it to be taken, in the sum of 25,000 dollars, and shall, also, allow 
at the rate of 100 dollars per month, for alimony, and the further 
sum of 250 dollars, to be paid by the defendant to the plaintiff, or 
to the register, or assistant register, on her behalf, towards de- 
fraying the necessary charges of the suit, on her part. 



Porter v. Spencer, 2 Johns. Ch. (N. Y.) 1G9. (1816.) 

The bill, which was for an account and a 7ie exeat, stated that 
the plaintiffs were merchant tailors, and had sold clothing to the 
defendant on a credit of six months; that on the 1st of January 
last, there was a balance of account due to them from the defend- 
ant, with interest, of 317 dollars and 85 cents. To recover this 
sum, the plaintiffs had brought an action at law against the de- 
fendant, and held him to bail; and the defendant had pleaded the 
general issue, merely for delay. That the defendant's father was a 
special bail, and had, as the plaintiffs were informed, and verily 
believed, sold all his property in this state, and was about to remove 
permanently from the state. That the defendant was also about 
to remove immediately with his father, without leaving any prop- 
erty behind. 

'^riio h\]\ was sworn to, and was accompanied also with an 
affidavit, as to the truth of the material facts charged. 



Porter v. Spencer 305 

The Chancellor: 

Tlie general language of the cases prior to the time of Lord 
Elclon is, that the writ of ne exeat is not to be granted, if the 
demand be not purely and exclusively equitable. {King v. Smith, 
Dickens, 8"3. Brocher v, Hamilton, Dickens, 154. Peartie V. Lisle, 
Amb. 75. Anon. 2 Atk. 210. Crosley v. Marriot, Dickens, 609.) 
If the demand be actionable at law, and the party can be arrested 
and held to bail, there is no necessity for the writ ; and if the case 
be not bailable, the granting of the writ would be holding the 
party to bail, when the plaintiff was not entitled to bail at law. 
The ne exeat has accordingly been refused, when the demand was 
in prosecution at law, and not hailahle, though the defendant was 
about to remove with his effects. {Crosley y. Marriot, Dick, GOO. 
Case of Gardner, 15 Vesey, 444.) 

But where a defendant, after a verdict at law, and before judg- 
ment, was threatening to go beyond sea, the ne exeat was allowed 
in an early case {ex parte BrunJcer, 3 P. Wms. 312), by the master 
of the rolls, though Lord Talbot afterwards discharged the writ, 
and on the ground, principally, that no bill was filed. He added, 
also, "that the writ ought not to be made use of where the demand 
is entirely at law, for there the plaintiff has hail, and he ought not 
to have double hail, hoth at law and in equity" 

The import of this case is, that the rule against the allowance 
of the writ, where the matter was of legal cognizance, was not 
then understood to be inflexible, but would be made to yield to 
cases of necessity, when justice would be defeated without the aid 
of the writ. In Athinson v. Leonard (3 Bro. 218), Lord Thurlow 
laid down the rule, that if chancery had concurrent jurisdiction, 
as in the case of a lost bond, it was sufficient to authorize the 
writ, if the demand was an equitable one; and he granted it as 
a measure to compel the party to give security to abide the decree ; 
and Lord Loughborough only doubted, in Eussel v. Ashy (5 Vesey, 
90). whether the ne exeat would lie when the defendant mic^ht be 
held to bail at law. 

Since the time of Lord Eldon, however, it has become settled 
in the English chancery, that though the plaintiff may sue at law 
for the balance of an account, and hold the party to bail, yet, 
as chancery holds a concurrent jurisdiction upon the head of 
account, the plaintiff may have the ne exeat, on a positive affidavit 
of a threat or purpose of going abroad, even though the defend- 



306 Ne Exeat 

ant's general residence was abroad. (Jones v. Alephsin, 16 Vesey, 
■iTO. 11 Vesey, 54. and 1 Ves. & Beame, 132, 133. Howden V. 
Rogers). In Amsinck v. BarUay (8 Vesey, 594), tlie defendant 
was arrested at law, and surrendered into custody; he was then 
held to bail on ne exeat for the same sum, and afterwards dis- 
charged in the suit at law for want of proceeding. The ne exeat 
was discharged on the ground that the defendant had first been 
arrested at law and kept in custody, and then discharged; and in 
Jones V. Sampson (8 Vesey, 593), the chancellor admitted his 
authority to grant the writ where the jurisdictions were concurrent ; 
but he observed (p. 598), that if the plaintiff was actually arrested 
at law, he would not grant the writ. 

In the present case, I have some doubts, whether the bill states 
a matter of account on which the jurisdiction of the Court can 
attach. To sustain a bill for an account, there must be mutual 
demands, and not merely payments by way of set-off. A single 
matter cannot be the subject of an account. There must be a 
series of transactions on one side, and of payments on the other. 
{Dinwiddle v. Bailey, 6 Vesey, 136. and Wells v. Cooper, there 
cited). I place my interference on the necessity of the case. 
From the facts charged and sworn to, it appears to me that the 
remedy in the suit pending at law would be absolutely defeated 
without the interposition of this Court. The books assume and 
admit principles that will justify the allowance of the writ under 
the peculiar circumstances of the present case. Tlie remedy sought 
is indispensable to prevent a failure of justice, and this creates a 
marked difference between this and the ordinary cases. I should 
think it would reflect discredit on the administration of justice, 
if the plaintiff could find no relief from the impending mischief 
arising from a failure of the remedy at law, by the immediate 
removal of the defendant and his bail. I have no option or dis- 
cretion to refuse the writ, when a case is brought within the 
established rules of the Court. 

This is not holding a party to bail when he is not entitled to it. 
Nor is there double bail, for the first bail is going abroad with all 
his effects, and that too in connection with the defendant; and 
though I am not free from diffidence, as to the view I have taken 
of this caee, T feel myself bound to declare, from the best judg- 
ment I can form at present, that a we exeat ought to be granted. 
Writ of ne exeat granted in the sum of 500 dollars. 



Kelly v. Eckford 307 

Production of Papers. 

Kelhj V. Eckford, 5 Paige Ch. (N. Y.) oJfS. (1S36.) 

This was an appeal, by the complainants, from an interlocu- 
tory order of the vice chancellor of the first circuit, directing 
them to deposit certain partnership books and papers with a 
master, for the inspection of the defendants, before answer. The 
bill was filed by the complainants, as the assignees of J. Beacham, 
for an account and settlement of a partnership transaction between 
Beacham and H. Eckford, the defendants' testator. The petition, 
upon which the order of the vice chancellor was founded, stated 
that an inspection of the partnership books and papers, in the 
hands or under the control of the complainants, was necessary 
to enable the defendants to answer the bill, and to make their 
defence with a due regard to the interests of tlie estate of the 
decedent. 

The Chancellor: 

In ordinary cases the defendant is not entitled, by motion, to 
call upon the complainant for the production of his books, or other 
documentary evidence in his possession, before answer, to enable 
such defendant to make his defence. The case of The Princess of 
Wales V. The Earl of Liverpool (1 Swans. Eep. 114, 2 Wils. Ch. 
Eep. 29, S. C), in which such an order was made by Lord Eldon, 
and where he subsequently dismissed the bill because the note 
stated in such bill was not produced, has always been considered 
as a political decision. The decision of Jones v. Lewis (2 Sim. & 
Stu. 242), by Sir John Leach, the only case in which it has been 
followed in England, was afterwards reversed by Lord Eldon him- 
self. (See 4 Sim. Eep. 324.) And in the recent case of Pen fold 
V. Nunn (5 Sim. Eep. 409), where the defendant asked for the 
production of documents in the hands of the complainants, to 
enable him to answer the bill, Sir Launcelot Shadwell said he 
never understood the reason upon which the decision in The Prin- 
cess of Wales V. Lord Liverpool proceeded, and that he could not 
accede to it; that if the defendant wanted to prove, in the action 
which he had brought, the consideration given for the bill of 



308 Production of Papers 

exchange whicli he then sought to have delivered up, he ought 
to have filed a bill against the plaintiff, for a discovery of the docu- 
ments which he then asked to have produced ; that the defendant 
was at liberty to call upon the plaintiff to produce the documents, 
and if the latter refused to do so, he could not afterwards com- 
plain that the answer was insufficient; and that if the defendant 
required them for the purposes of his defence in the suit, he ought 
to file a cross bill against the plaintiff for a discovery of them. 
A similar decision was made by this court, a. few days since, in 
the case of Coming v. Heartt. (In Chanc. Dec. 2-^, 1835. See 
also Lupton v. Pearsall, 2 John. Ch. Eep. 429 ; Denning v. Smith, 
3 Idem, 409 ; Spragg v. Corner, 2 Cox's Cas. 109 ; Hare v. Collins, 
Hogan's Eep. 193.) 

This principle of requiring the defendant to file a cross bill of 
discovery only applies, however, to those cases in which the de- 
fendant wants the inspection of the complainant's documentary 
evidence to enable liim to put in his answer, or to make out his 
defence to the suit. But it is not applicable to the case of part- 
nership books and papers in the hands of one of the partners, 
or his assignees or representatives, where both parties have an 
equal right to the examination and inspection thereof for the 
purposes of the suit. In such cases it is the constant and uniform 
practice of this court, upon the application of either party, and in 
any stage of the suit, to order the adverse party to deposit any 
of the partnership books and papers, which belong equally to both, 
in the hands of an officer of the court, for the examination and 
inspection of the adverse party; and to permit copies thereof to 
be taken by the several partners, or their representatives. It was 
to a case of this kind that Lord Eldon referred, in the case of 
Pickering v. Righy (18 Ves. 484), and in Micllethwait v. Moore, 
(3 Meriv. 296), although he does not appear to have expressed 
his meaning very clearly in either case, or to have explained the 
true principles upon which the production is refused in the case 
of the plaintiff's own papers, while it is granted as to the partner- 
ship books and papers to which both parties have an equal right. 
In a court of law it is a matter of course to compel one party, 
who has the possession of a document which belongs equally to 
both, to produce the same for the inspection of his adversary, 
for the purposes of the suit. (See Reid v. Coleman, 2 Cromp. & 
Meeson, 456; 4 Tyrwh. 274, S. C.) 



Leggett v. DcBois 309 

There was no evidence before the vice chancellor that the defend- 
ants had any books or papers, belonging to the partnership, in 
their possession. The order appealed from was therefore right; 
and it must be affirmed with costs. If the defendants have in 
their custody or power any of the partnership books or papers, the 
plaintifl's will be entitled to an inspection thereof, upon an affidavit 
that such an inspection is necessary for the purposes of the suit, 
on making a proper application to the vice chancellor for such an 
order. 



Abatement and Revivor. 

Leggett v. Dubois, 2 Paige Ch. (N. Y.) 211. (1830.) 

The bill in this cause was filed to compel the specific perform- 
ance of an agreement made by the Eev. J. Sellon, now deceased, 
with the complainant, relative to the sale or exchange of a small 
piece of land between Beekman and Ann streets in the city of 
New- York; of which land it was alleged that Sellon was the real 
owner, or the cestui que trust, and that H. Walton was his trustee. 
It was further alleged in the complainant's bill that the land in 
question was conveyed to the other defendants, or some of them, 
after notice of the complainant's rights, and while it was held 
adversely by him. An answer having been put in by a part of 
the defendants, the cause was at issue as to them. The answer 
of Sellon was adjudged insufficient; and he was in contempt for 
not answering at the time of his death in March last. 

The Chancellor: 

The cases intended to be embraced by the 107th section of the 
title of the revised statutes which relates particularly to this court 
(2 R. S. 184), are those where the right of the deceased party 
vests in some or one of the survivors; so that a perfect decree 
may be made as to every part of the subject of litigation, without 
any alteration of the proceedings, or bringing any now parties 
before the court. Such is the case of a suit brought by or against 
two or more executors, trustees or joint tenants; where, on the 
death of one, the whole right of action or ground of relief survives 
in favor of or against the other. In such cases, there is in fact 



310 Abatement and Eevivor 

no abatement as to the survivors; and upon a proper application 
by either party on affidavit, showing the fact of the death, and 
that the cause of action has survived, the court will order the suit 
to proceed. The 108th section provides for another class of cases, 
where some of the parties survive and the rights of the parties 
dying do not survive to them, but some other person becomes 
vested with the rights and interests, or is subject to the liabilities 
of those who are dead. In such cases, the complainants may pro- 
ceed without making those persons parties, provided a decree can 
be made between the surviving parties without bringing such per- 
sons before the court. The decree, in that case, will not effect 
those in whom the rights of the deceased parties have become 
vested. Under a similar provision in the former statutes of this 
state, Chancellor Sanford decided that it was optional with the 
surviving complainant to revive the suit or to proceed without 
reviving; but that he was not bound to do either; that he might 
elect to abandon the suit. (1 Hopk, R. -iSO.) The revised statutes 
have provided for such cases; and the surviving defendants may 
now revive the suit if the complainants, or those who are entitled 
to revive in the first place, neglect to do so within such time as 
may be allowed by the court for that purpose. The proceedings to 
obtain a revival of the suit, under these provisions of the revised 
statutes, must be by petition; and an order for that purpose 
cannot be granted on motion founded on affidavit only. The 
petition is the substitute for a bill of revivor. But a formal bill 
may perhaps be necessary where the representatives of the deceased 
party cannot be found, or where they are infants. (7 Jolin. R. 
613, per Van ISTess, J.) It is undoubtedly the duty of the com- 
plainant to revive, if he wishes to proceed with the suit, and to 
have the benefit of the previous proceedings. And where a suit 
abates by the death of either of the parties pending an injunction, 
the defendant or his representatives may have an order that the 
complainant or his representatives revive the suit, within a) reason- 
able time, or that the injunction be dissolved. (1 Hen. & Munf. 
203. 1 Cox's Ca. 411. 2 id. 50.) 

In this case, there has not as yet been any unreasonable delay 
on the part of the complainant; but he must, within sixty days, 
proceed to revive the suit against the legal representatives of 
Sellon, or consent to proceed against the surviving defendants only, 
or the injunction must be dissolved. 



CHAPTER X. 

CROSS BILL, INTEHPLEADEE, PERPETUATE 
TESTIMONY, ETC. 

Cross Bill. 

Lowenstein v. GUdewell, 5 Dillon, 325. (1878.) 

Subpoena to Answer Cross-Bill. — Service on Solicitor. — Bill 
and Cross-Bill. — Right of Voluntary Dismissal. 

The plaintiffs filed their bill to foreclose a deed of trust on 
real estate. R. D. Partee and wife, among others, were made 
defendants, upon the allegation that they had some interest in the 
said mortgaged premises, or some part thereof, as purchasers, 
judgment creditors, or otherwise, which interests, if any, have 
accrued subsequent and are Junior to complainants' lien, and sub- 
ject thereto. Partee and wife answered, alleging they were the 
owners in fee of the property by purchase from one Christman, 
from whom Parish, the grantor in the deed of trust, derived his 
title; that the sale of the premises by Christman to Partee and 
wife was made long before the conveyance by Christman to 
Parish, and Parish to plaintiffs; that all these parties had full 
notice of the purchase by Partee and wife; that a suit for spe- 
cific performance of the contract for the sale of the property 
was brought by Partee and wife against Christman in the Pu- 
laski chancery court, and was pending at and before the convey- 
ance of the property by Christman to Parish, and Parish to 
plaintiffs, aod that said parties had notice of the pendency of 
such suit, and that that court decreed a conveyance of the prop- 
erty from Christman to Partee and wife, the title under such 
conveyance to relate back to the 20th day of December, 1876. 

Partee and wife also filed a cross-bill against the plaintiffs, 
setting up the same facts set out in their answer, and praying for 
the cancellation of the plaintiffs' deed of trust, and for a decree 
against plaintiffs for the rents and profits of the property received 
by them between the 23d of January, 1877, and the 27th of 
December, 1877, from the trustee in the deed of trust, who was 
in possession as such under said deed, and collected the rents of 

311 



312 Cross Bill 

the property and paid the same to the plaintiffs for the period 
mentioned. The cross-bill was filed February 4th, 1878. No 
process has issued thereon, and the defendants, who are plaintiffs 
in the original bill, have not entered their appearance thereto. 

The plaintiffs in the original bill now move for leave to dismiss 
the same. To this motion Partee and wife, who are named among 
the defendants in the original bill, and who are plaintiffs in the 
cross-bill, object, and tliey also move for a decree pro confesso on 
their cross-bill. 

Plaintiffs claim the dismissal by them of the original bill oper- 
ates to dismiss the cross-bill. 

Caldwell, J. : 

The plaintiffs in the original bill have the right, as a matter 
of course, at any time before decree, to dismiss their bill at their 
own costs. (1 Barbour's Chancery Practice, 225, 228; 1 Daniell's 
Chancery Practice, 792.) 

The cause is not at issue on the original bill — no replication 
to the answer having been filed — and the defendants in that bill, 
under rule 66, might have obtained an order, as of course, for a 
dismissal of the suit for this reason. 

The motion of plaintiffs to dismiss their bill is granted, and 
the same will be dismissed at their costs. 

The motion of plaintiffs in the cross-bill for a decree pro con- 
fesso thereon against the defendants therein named is denied. 

If the defendants in the cross-bill had been served with process, 
or had voluntarily entered their appearance to the cross-bill, the 
plaintiffs therein would have been entitled to a decree pro confesso 
after the lapse of the time allowed defendants by the rules to 
answer. 

The bill and cross-bill in equity do not necessarily constitute 
one suit, and, according to the established practice in equity, the 
service of a subpoena on the defendants in the cross-bill, although 
they are parties in the original bill, and in court for all the pur- 
poses of the original bill, is necessary to bring them into court 
on the cross-bill, unless they voluntarily enter their appearance 
thereto, which is the usual practice. And the general chancery 
rule is, that service of the subpoena in chancery to answer a cross- 
bill cannot be made upon the solicitor of the plaintiff in the 
original bill. (1 Hoffman's Chancery Practice, 355, and note 4.) 



LowENSTEiN V. Glidewell 313 

In the chancery practice of the circuit courts of the United 
States there are two exceptions to this rule — (1) in case of in- 
junctions to stay proceedings at law, and (2) in cross-suits in 
equity, where the plaintifl' at law in the first and the plaintiff in 
equity in the second case reside beyond the jurisdiction of the 
court. In these cases, to prevent a failure of justice, the court 
will order service of the subpcena to be made upon the attorney 
of the plaintiff in the suit at law in the one case, and upon his 
solicitor in the suit in equity in the other. {Eckert v. Bauert, 4 
Wash. 370; Ward v. Sebring, lb. -172; Dunn v. Clarh, 8 Pet. 
1; and for application of analogous principles to parties to cross- 
bills, see Schench v. Peay, 1 Woolw. 175.) 

It not unfrequently occurs that the facts constituting defend- 
ant's defences to an action or judgment at law are of a character 
solely cognizable in equity; and in suits in equity it often hap- 
pens that the defendant can only avail himself fully and success- 
fully of his defence to the action through the medium of a cross- 
bill. In suits in these courts the plaintiff is usuall}'^ a citizen of 
another state, and hence beyond the jurisdiction of the court, and 
in such cases defendants who desire to enjoin proceedings at law, 
and defendants in equity cases who desire to defend by means of 
a cross-bill, would, but for this rule of practice, be practically 
cut off from their defences by reason of their inability to make 
service on the plaintiff in the action. It would be in the highest 
degree unjust and oppressive to permit a non-resident plaintiff 
to invoke the jurisdiction of the court in his favor, and obtain 
and retain, as the fruits of that jurisdiction, a judgment or 
decree to which he was not in equity entitled, by remaining be- 
yond the jurisdiction of the court whose jurisdiction on the very 
subject matter, and against the very party, he had himself first 
invoked. The reason of the rule would seem to limit it in equity 
cases to cross-bills either wholly or partially defensive in their 
character, and to deny its application to cross-bills setting up facts 
not alleged in the original bill, and which new facts, though they 
relate, as they must, to the subject matter of the original bill, 
are made the basis for the affirmative relief asked. The cross-bill 
in this case is of this latter character, and, without deciding that 
this fact alone would preclude the court from directing service of 
the subpoena on the solicitors of the plaintiffs in the original bill. 



314 Cross Bill 

such an order will not be made after plaintiffs have filed their 
motion to dismiss their bill — a motion grantable as of course. 

Whether the dismissal of the original bill carries with it the 
cross-bill depends on the character of the latter. If the cross- 
bill sets up matters purely defensive to the original bill and 
prays for no affirmative relief, the dismissal of the latter neces- 
sarily disposes of the former. But where the cross-bill sets up, 
as it may, additional facts not alleged in the original bill, relating 
to the subject matter, and prays for affirmative relief against the 
plaintiffs in the original bill in the case thus made, the dismissal 
of the original bill does not dispose of the cross-bill, but it re- 
mains for disposition in the same manner as if it had been filed 
as an original bill. (Warrell v. Wade, 17 Iowa, 96; 2 Daniell's 
Chancery Practice, 1556.) 

The cross-bill in this case is of this character, and it will re- 
main on the docket, and the plaintiffs therein can take such action 
in relation thereto as they may be advised, but no steps can be 
taken in the case until defendants are brought into court. 

Ordered accordingly. 



Coach V. Jiidge, 97 Mich. 563. (1893.) 

Mandamus. Argued October 31, 1893. Granted November 24, 

1893. 

Eelator applied for mandamus to compel respondent to vacate 
an order setting aside a default. The facts are stated in the 
opinion. 

Hooker, C. J.: 

Defendant, having filed an answer in which he claimed the 
ri<Tht to affirmative relief as though upon a cross-bill, entered the 
default of the complainant for his failure to file an answer to 
the new facts set up in defendant's answer upon which the claim 
to affirmative relief was asked, a replication in the usual form only 
having been filed. This default having been set aside upon motion, 
defendant asks a mandamus requiring the circuit judge to vacate 
his order, it being contended that the replication is not a suf- 
ficient denial of the matter set up in the answer. 

Chancery Kule No. 123 was intended to supplant the practice 



Kile v. Goodrum 315 

of filing a formal cross-bill by a simpler method. To that end it 
was provided that a pereon might have all the benefits of a cross- 
bill upon an answer containing the proper averments and prayer. 
There is nothing in the rule that deprives the complainant of the 
right to answer {IlacMey v. Mack, GO Mich, 591) ; and we think 
it may also be said that there is nothing in the rule to deprive 
the defendant of the benefit of an answer, the same as though a 
cross-bill had been filed. The general replication, while technically 
a denial of the truth of the answer, is a formal paper, intended 
to complete an issue. But it cannot properly take the place of an 
answer. A cross-bill proper may be taken as confessed, in jvhich 
case the allegations of such bill are taken as true. 2 Barb. Ch. 
Pr. 135. We think the same practice proper in case of an answer 
claiming the benefits of a cross-bill. In such case the replication 
puts the original case as made by bill and answer at issue, while 
those averments which are properly in the answer only as the basis 
of a cross-claim, under the rule, must be answered specifically, 
according to the usual practice. Complainant's default was there- 
fore properly entered, and the order vacating the same, and striking 
the papers on which said order pro confesso was based from the 
files, should be vacated. A writ of mandamus requiring this will 
issue, without costs. 

It is not intended hereby to foreclose the right of the com- 
plainant to apply for, and the court to grant, an order setting aside 
the order pj-o confesso upon a proper showing, if such relief shall 
be within the proper discretion of the court. 

The other Justices concurred. 



Interpleader. 
Kile V. Goodrum, 87 III. App. ^62. (1899.) 

Mr. Justice Burroughs delivered the opinion of the court. 

"We have examined the amended bill of interpleader filed by 
appellant in the Circuit Court of Edgar County against appellees, 
and find that it properly avers that appellees each claim from 
the estate of H. N. Guthrie, deceased, of which appellant is the 
administrator, the amount of a cert<iin board bill owino- bv said 
deceased, in his lifetime, to one of them, but which one appellant 



316 Perpetuate Testimony 

does not know ; that each of the appellees are prosecuting a claim 
against said estate for said board bill ; and that appellant fears he 
may be compelled to pay the same twice, for which reason he asks 
the court to compel them to answer his bill of interpleader, and 
allow the court to determine to which one he shall pay said board 
bill. By his bill appellant offers to bring the amount due from 
said estate for said board into court for the benefit of such one 
of the appellees as the court shall determine it belongs, and he 
disclaims all interest in such board bill, or that he has in any 
manner obligated himself to pay the same to one of the appellees 
in preference to the other, but that he stands indifferent between 
them ; thus filling every requirement of a good bill of interpleader, 
as defined by Sec. 1332 in 3 Pomeroy's Equity Jurisprudence: 
(1) that the same thing, debt or duty is claimed by both or all 
of the parties against whom relief is demanded; (3) all the 
adverse title or claim is dependent on or is derived from a common 
source; (3) the person asking the relief does not have or claim 
any interest in the subject-matter; (4) he stands perfectly indif- 
ferent between those claiming the thing, debt, or duty, being in the 
position merely of stakeholder. See also Newhall v. Kastens et al, 
70 111. 156; Ryan v. Lamson et al., 153 111. 520; Platte Valley 
Bank v. Nat. Bank, 155 111. 250; and Morrill v. Manhattan Life 
Ins. Co., 183 111. 260. 

It was, therefore, error for the court to sustain the demurrer 
to appellant's amended bill, for which reason we reverse the decree 
appealed from, and will remand the case with directions, to over- 
rule the demurrer to the amended bill, and then proceed as to law 
and justice appertain. Eeversed and remanded with directions. 



Perpetuate Testimony. 
Booker v. Booker, 20 Ga. 777. (1856.) 

In Equity, in Wilkes Superior Court. Decision by Judge 
James Thomas, September Term, 1856. 

This was a bill filed by James J. Booker and others to perpetuate 
the testimony of one Moses Sutton, an aged man, and of infirm 
health, laboring under two diseases, viz: consumption and dys- 
pepsia; as to the value of the hire and other things in reference 



Booker v. Booker 317 

to a certain slave for whicli the complainants intended to bring 
suit against the executors of R. Booker; but which suit could not 
be brought, because 12 months had not expired since the death of 
E. Booker. Tb this bill a demurrer was filed, 

1st. Because this was not a case authorizing such a bill. 

2d. Because the name of the slave is not given, and the facts 
are too loosely stated. 

The Court over-ruled the demurrer, and this decision is assigned 
as error. 

By the Court. — McDonald, J. delivering the opinion. 

The bill in this case was filed to perpetuate the testimony of 
Moses Sutton. The prayer is, that the testimony may be taken 
de hene esse. The complainants allege in their bill that they are 
about to file a bill in Equity against the defendants, as the executors 
of Richardson Booker, deceased, for an account of a certain slave 
and other property held, by the testator in his lifetime, the prop- 
erty of the complainants, and the profits and income arising from 
the hire and labour of the slave and other property; that the 
testator, in his lifetime, and the defendants, his executors, since 
his death, have failed to account for the said slave, other property 
and profits; that suit has not been instituted, l>ecause twelve 
months have not elapsed since the probate of the will; that Moses 
Sutton, 70 years old or upwards, of infirm health, afflicted with 
consumption and dyspepsia, is the sole witness to a material fact 
in the cause to be instituted, to-wit : that the defendant's testator, 
in his lifetime, acknowledged his obligation to account to the com- 
plainants for the negro and his annual value, and the value of other 
property ; and that there is danger of said evidence being lost to 
complainants. 

The defendants demurred to the bill on two grounds: 

1st. That complainants have no right, in Equity, upon the 
facts stated in their bill, to proceed to take the testimony of 
Moses Sutton, the witness, de hcne esse, there being no allegation 
that an action at Law was pending in any Court for and concern- 
ing the matters stated in said bill, which must have been the case 
to take the testimony de bene esse. 

2d. That the charges and allegations of complainants in said 
bill, respecting the rights therein spoken of, are so general, and 



318 Perpetuate Testimony 

inadequate, and uncertain, that no equitable relief can be granted 
respecting tlie same. 

Tlie Court below over-ruled the demurrer, and his decision is 
excepted to. 

[1.] The defendants' Counsel insist that the bill cannot be sup- 
ported to take the testimony of the witness de bene esse, because 
there is no action pending. Every bill to perpetuate testimony is 
a bill to take testimony de bene esse; that is, to take the depositions 
of the witness to be allowed at the hearing of the cause pending 
or to be instituted, on condition that the witness, for any cause 
cannot, be produced for examination ; or that it is just and proper, 
under a full consideration of the circumstamces of the case, that 
the evidence should be read. 

[2.] So, every bill to take testimony de bene esse, is a bill to 
perpetuate testimony. It is to take the evidence of a witness who, 
for certain specified reasons, might not be able to attend the trial. 
The American Editor of Mitford's Chancery Pleading remarks, 
that "bills to perpetuate testimony seem divisible into two kinds, 
namely: bills to perpetuate testimony specifically, so called; and 
bills to take testimony de bene esse." (P. 62, N. (1.) 

[3.] It seems, from an order of the Court of Chancery in Eng- 
land, in tlie reign of Philip & Miary, that the Chancellors had 
placed many restraints on the perpetuation of testimony, but that 
the examiners of the said Courts had not, until recently, been 
restrained in the examination of witnesses in perpetual memory, 
in their offices, whereunto they had been sworn; whereupon, that 
order was passed which is, undoubtedly, the foundation of the bills 
since used to perpetuate evidence. (See 2 Am. Ed. Gresley's Eq. 
Ev. 129.) 

By that order, the party who desired to have a witness examined, 
was required to frame a bill containing the cause why he would 
have the witness examined ; and thereupon, should sue out a writ 
for that purpose ordained, and deliver it to the opposite party, 
whereby he might have notice to have the same or any other wit- 
nesses examined. (Id.) Bills which are now called bills to per- 
petuate testimony, and bills to take evidence de bene esse, have this 
common origin. In neither case can the evidence taken under this 
proceeding be used, if the witness is at the trial or is able to attend, 
or his testimony can be had in the usual way. 

[4.] It is a departure from the ordinary mode of taking evi- 



BooKEE V. Booker 319 

dence, and the Court of Chancery has been very strict in its 
requisitions upon parties who aipply for the extraordinary privilege, 
tliat it may be well assured that the exigency of the case demand it. 

[5.] The Court will not allow its authority to l)e used to fish 
for evidence to sustain a projected law suit; hence, where the 
application is to perpetuate testimony in cases where there is no 
suit, or one party is impeded by the act of the other, from prose- 
cuting a pending suit, the applicant must show that "the facts to 
which the testimony of the witnesses proposed to be examined 
relates, cannot be immediately investigated in a Court of Law; 
or, if they can be so investigated, that the sole right of action 
belongs to the other party; or that the other party has interposed 
some impediment (as an injunction) to an immediate trial of the 
right in the suit at Law; so that before the investigation can take 
place, the evidence of a material witness is likely to be lost, by his 
death or departure from the country." (Story's Eq, Pleading, 
§303.) 

[6.] An opinion seems to prevail to some extent, that a bill to 
perpetuate testimony will not lie at the instance of a party who 
has not possession of the property which is to be the subject of 
litigation; and that such proceeding will only be allowed to a 
party who is in possession, whose right or title is liable to dis- 
turbance at the instance of another whose movements the com- 
plainant cannot control. This is a mistake. It is true, that a 
complainant who has a right of action for property out of his 
possession, cannot sustain a bill to perpetuate testimony before 
action brought, because he has it in his power to sue and obtain 
the evidence in the usual way. 

But the instance stated is not the only one in which testimony 
may be perpetuated. In ever}' case in which a complainant has a 
vested interest in a matter which is likely to become the subject 
of litigation, however small or contingent, and it cannot be investi- 
gated in a Court of Law or Equity, either from his inabilit}' from 
any legal cause to institute a suit, if he should be the plaintiff; 
or having sued, he is impeded by the act of the other party from 
prosecuting his suit, and his interest may be endangered if the 
evidence in support of it is lost, he may have the testimony of his 
witnesses perpetuated. This is the principle to be collected from 
the authorities, and it is in accordance with justice and common 



320 Perpetuate Testimony 

sense. (Story's Eq. PL § 301, &c.; Lube's Eq. PL 134; Gres. Eq. 
Ev. 130; Smiths Ch. Pr. 484.) 

[7.] The bill should state every matter which is necessary to 
entitle the complainants to this remedy, to-wit: their interest; 
the reason* why suit cannot be instituted ; the subject matter of 
the controversy, and the proof they propose to make; the interest 
or the duty of the defendants to contest the right or title; the 
ground of necessity for perpetuating the evidence. 

This bill is full on these points, and we are of opinion that 
the prayer merely, that the testimony may be taken de bene esse, 
does not divest it of its distinctive character as a bill to perpetuate 
testimony given to it by its structure. The bill is amendable, in 
this respect, if an amendment was necessary. A bill to perpetuate 
testimony may be amended, in England, after the testimony has 
been taken under it. (Story's Eq. PL note to § 306.) 

Under our liberal Statutes of amendment, it is impossible that 
a bill should be dismissed for a mere technical error. The first 
ground of demurrer ought to have been over-ruled. 

[8.] The second ground of demurrer raises the question of the 
sufficiency of the allegations to entitle the complainant to tlie order 
he prays for. It is insisted that the allegations of the bill are 
insufficient, because the name of the slave is not set forth, for 
whom and for whose hire an account is to be asked, and because 
the other property is not described. The allegations in regard to 
the slave and the hire, are as full as usual in a bill calling a party 
to account for the value and hire of slaves, but not so in respect 
to the other property. The bill was amendable in that particular, 
and an amendment ought to have been ordered by the Court, if he 
had considered it defective. The testimony sought for had been 
taken; and if it is confined to the slave and the hire, it ought 
unquestionably to be received; and if it goes beyond, to other 
property, it will depend on the notice which the defendant had, 
through the direct interrogatories, of the evidence sought to be 
made, so as to enable him to cross-examine the witness in regard 
thereto, whether that part of the evidence should be read at the 
hearing of the cause. We will not send the case back merely for the 
purpose of making an amendment which would be allowed as a 
matter of right. 

Judgment affirmed. 



BiCHTEii V. Jerome 321 

Examine Witness De Bene Esse. 
Ricliter v. Jerome, 25 Fed. Rep. 679. (18S5.) 

In Equity. On motion to set aside order pro confesso, and for 
leave to answer. 

This was a bill to take testimony de bene esse. The bill stated, in 
substance, the filing of a bill by the plaintiff, in the Western dis- 
trict of this state, against the defendants in this bill, the object of 
which was to charge with a lien certain lands l}ang in that district ; 
that defendants demurred to this bill for want of equity ; that the 
demurrer was sustained, and the bill dismissed; that the cause is 
now pending on appeal in the supreme court of the United States, 
and tliat it will not be reached within two years, and if it be 
reversed there will be a delay of six months more before evidence 
can be taken. The bill further set forth that the testimony of four 
witnesses, now living, was necessary to the maintenance of plain- 
tiff's case, whose testimony, in the inevitable lapse of time before 
it can be taken in the ordinary course of business, is in danger 
of being lost; that one of these witnesses was over 65 years old, 
another over 70, and both somewhat infirm, and that they were the 
only witnesses to the facts which he proposes to prove by them. 
The bill further set forth the facts which the plaintiffs expected 
to prove by the testimony of each of these witnesses, and showed 
the same to be material; that plaintiff had been advised that he 
had no remedy for perpetuating the testimony of these witnesses, 
according to the general rules and practice of this court, and could 
only have relief under a bill of this nature. The prayer was for a 
substituted scr\'icc upon the attorneys of the non-resident defend- 
ants, and that a commission might issue to take the testimony 
of the witnesses named in the bill, to be road, provided the case is 
reversed 1)y the supreme court, and remanded for hearing in the 
circuit. Annexed to this bill as an exhibit was a copy of the 
original bill, filed in the Western district, the purpose of which 
was to set aside the judicial sale of a large tract of land as a fraud 
upon the plaintiff, and others standing in like situation with him. 
Upon the filing of this bill an order was entered that substituted 
service as to the non-resident defendants be made, bv serving the 



323 Examine Witness De Bene Esse 

subpoena upon their solicitors in the main case. This order was 
afterwards vacated and set aside as beyond the power of the court, 
and the case left to pax3ceed against the defendant Jerome, the 
only resident of the state. He afterwards suffered default, and, 
upon the eve of signing a decree against him, came in and moved 
to set aside the order pro confesso, and for leave to answer, aecom- 
panjdng his motion with a copy of the proposed answer. 

Brown, J. : 

This bill is an anomalous one. So far as we are informed there 
is no case to be found in the reports of this country of a bill solely 
to perpetuate testimony. To entitle the party to maintain a bill 
of tills description the plaintiff must aver: (1) That there is a 
suit depending in which the testimony of the witnesses named will 
be material. Story, Eq. § 307. (2) That the suit is in such con- 
dition that the depositions cannot be taken in the ordinary methods 
prescribed by law, and that the aid of the court of equity is neces- 
sary to perpetuate the testimony, (3) The facts which the plaintiff 
expects to prove by the testimony of the witnesses sought to be 
examined, that the court may see that they are material to the 
controversy. (4) The necessity for taking the testimony, and the 
danger that it may be lost by delay, 

A failure to make the proper averment in any of these particulars 
is good ground for a demurrer, but we do not understand that as a 
rule the allegations of the bill can be put in issue by an answer. In 
cases of bills strictly to perpetuate testimony (which will only lie 
when no suit has been commenced), the defendant may allege by 
way of plea any fact tliat may tend to show that there is no occasion 
to perpetuate the testimony; as, for instance, that there exists no 
such dispute or controversy as that alleged in the bill, or that 
plaintiff has no such interest in it as will justify his application 
to perpetuate the testimony. Story, Eq, PI, 306a, But in bills 
to take testimony de bene esse there must be a suit depending in 
some court, and this of itself is evidence of a controversy between 
the parties. In Ellice v. Roupell, Story, Eq, PI, 306^^ note. Sir J. 
Romilly stated the rule to be in regard to bills for perpetuating 
testimony that defendant, by consenting to answer the plaintiff's 
bill, admitted his right to examine witnesses in the case, and that 
implies all that is demandable. "For if there is really any lona 
fide controversy between the parties, the right to perpetuate the 



RiCHTER V. Jerome 323 

testimony follows as a matter of course." In a case of the kind 
under consideration, where a hearing cannot be had in the supreme 
court in less than two or three years, and the witnesses are some 
of them old and infirm, it is obvious that the plaintiff ought in 
some way or another to be able to secure their testimony against 
the contingency of death, absence, or mental alienation. At the 
same time resort ought not to be had to the extraordinary power 
of a court of equity, if the usual methods of procedure prescribed 
by statute are competent to afford relief. The case is no longer 
"depending" in the circuit court, and hence is removed from the 
operation of the act of congress permitting depositions to be taken 
de bene esse. Eev. St. § 8G3. From the time the appeal was per- 
fected, the jurisdiction of the circuit court was suspended and so 
remains until the cause is remanded from the appellate court. 
Slaughter-house Cases, 10 Wall. 273. It has also l)een expressly 
held that this act has no application to cases pending in the 
supreme court. The Argo, 2 Wlieat. 287. 

Acting upon this theory that the deposition could not be taken 
upon notice under the statute, it seems tliat plaintiff applied both 
to the circuit and to the supreme court for leave to take his testi- 
mony by deposition under equity rule 70, but this application was 
refused upon the ground that he might proceed to take tlie deposi- 
tions in perpetuam rei memoriam under Eev. St. § 866. Ricliter 
V. Union Trust Co., 115 U. S. 55; S. C. 5 Sup. Ct. Eep. 1162. 
This section provides that "in any case where it is necessary, in 
order to prevent a failure or delay of justice, any of the courts of 
the United States may grant a dedimus potestatem to take deposi- 
tions according to common usage; and any circuit court, upon 
application to it as a court of equity, may, according to the usages 
of chancery, direct depositions to be taken in perpetuam rei me- 
moriam, if they relate to any matters that may be cognizable in 
any court of the United States." The first clause of tliis section 
clearly has no application, since the supreme court has refused a 
dedimus potestatem, and the circuit court has no power to grant 
one by reason of the supersedeas. We must look, then, to the second 
clause, for the power of this court to order these depositions to be 
taken in perpetuam, and to "usages of chancery" for the manner 
in which such power shall be exercised. Before adverting to this, 
however, we are bound to consider whether a remedy is not afforded 
by section 867, which provides "that any court of the United States 



324 Examine Witness De Bene Esse 

may, in its discretion, admit in evidence in any cause before it any 
deposition taken in perpetuam rei memoriam which would be so 
admissible in the courts of the state wherein such cause is pending, 
according to the laws thereof." 

If, then, there be any law of this state under which these deposi- 
tions can be taken, and in such manner as to be admissible in the 
courts of the state, we think we are bound to presume that the cir- 
cuit court for the Western district would exercise its discretion and 
receive these depositions, and hence that this bill is unnecessary. 
On referring, however, to the various statutes of this state upon 
the subject (2 How. St. §§ 6647, 7416, 7433, 7460, 7475, 7476), we 
find they all refer to cases pending in some court within the state, 
except section 7476, which authorizes "any person who expects to be 
a party to a suit to be thereafter commenced in a court of record" 
to cause the testimony of any material witness to be taken condi- 
tionally and perpetuated. But the difficulty witli this section is 
that the plaintiff is not a person who expects to be a party to a suit 
to be hereafter commenced, but is already a party to a suit begun 
and disposed of by the court in which it was commenced, but which 
is liable to be remanded to that court for trial or hearing. Sections 
7452 to 7458, prescribing the method of taking depositions to be 
used in the courts of other states, have no application, since the 
case, as it now stands in the supreme court, is in no condition 
for the taking of testimony, and never will be until it is remanded 
to the circuit court. 

What are, then, the usages according to which depositions may 
be taken in perpetuam rei memoriam under section 866 ? We think 
an answer to this question must be found in general equity rule 90, 
which, in cases where the general equity rules do not apply, requires 
the practice of the circuit court to be regulated by the high court of 
chancery in England, so far as the same may reasonably be applied 
consistently with the local circumstances and conveniences of the 
district. In England bills to perpetuate testimony axe not uncom- 
mon, though much less frequent now than formerly. Upon the 
whole, in view of the great doubt whether there is any statute, 
either state or federal, or any established practice under which this 
testimony can be taken for use in the circuit court after this case 
ehall have been remanded, we have come to the conclusion that the 
case is a proper one for a bill to take the testimony of these wit- 



RiCHTER V. Jerome 3:^5 

nesses de bene esse, provided the plaintiff has, by his bill, made a 
case in other respects for the interference of a court of equity. 

The answer sets up in defense that, before the bill was dismissed, 
the case was pending in the circuit court for some 17 months, dur- 
ing all of which time this testimony might have been taken de hene 
esse under the act of congress. We do not think, however, that the 
plaintiff was at fault in this particular. He was not bound to pre- 
sume that the circuit court would sustain the demurrer and dismiss 
his bill, or to act upon any such supposition. Tlio ordinary course 
is not to begin taking proofs until after the case is at issue upon 
answer and replication, and we think plaintiff is not chargeable 
with laches in pursuing the usual course in that regard, particularly 
in view of the fact that the defendant appears to have suffered no 
injury by the delay. Defendant also denies, upon information and 
belief, that the witness Anthony has such knowledge of the facts 
or will give such testimony as plaintiff professes to expect, and 
avers that his only object is "to fish something out of him which 
will have a tendency to establish his case." We do not think this 
allegation of the bill can be traversed in this way. We have the 
right to infer that plaintiff would not seek to examine a witness 
unless he expected to obtain something material to his case, and 
we are not at liberty to inquire in this proceeding whether his 
testimony is likely to be favorable to him or not. If the original 
case were in a condition to permit the testimony to be taken, the 
plaintiff would have the right to do exactly what defendant charges 
him with wishing to do, viz., to probe the knowledge and conscience 
of these witnesses — to ascertain the exact facts which he alleges 
constitute a fraud upon his rights. We think that all doubts with 
regard to the materiality^ of his testimony should be construed in 
favor of the plaintiff. 

The allegations of the answer, that the testimony of the other 
witnesses is not material, and that they are not the only witnesses 
by whom the facts can be shown, are open to the same objection. 
The court cannot properly pass upon these questions until the 
testimony is given, when the court in which the depositions are 
read will determine how far they are maiterial to the plaintiffs 
case. Still less are we at liberty to inquire into the exact age, or 
mental or physical infirmities, of these witnessee. It is true the 
allegations with respect to these are necessary to be made in the 
bill, as a basis for taking the testimony, but we do not understand 



326 Examine Witness De Bene Esse 

them to be traversable to any greater extent than are like aver- 
ments in an affidavit to take deposition de bene esse under the act 
of congress. If an issue could be made upon these facts, and 
testimon}^ taken, more time might be consumed than would be 
necessary to take the depositions, and the whole object of the bill 
thus be defeated. This object is to obtain a summary examination 
of the witnesses, that their testimony may be perpetuated; and, 
as before observed, we doubt whether any of the matters of fact 
contained in the bill can be put in issue, except, perhaps, with 
regard to the existence of the controversy. ISTor can we review 
the opinion of the court in sustaining the demurrer to the original 
bill, unless, at least, it appears that this bill was so clearly frivolous 
that it ought never to have been filed, or plaintiff could have no 
reason to expect that his suit could be successful. 

We think plaintiff is entitled to a decree for an examination of 
his witnesses. 



INDEX. 



(References are to the pages.) 
ACTION: 

aliens right of, during war, 2. 

pending in a foreign jurisdiction, legal effect of, 192-197. 
ADDRESS: 

of bill of equity, 71-72. 
ALIENS: 

suits by, 1, 2. 
ALLEGATIONS AND PROOF: 

in bill must correspond, 90. 
AMENDMENT: 

limitations of, in case of original bill, 249. 

how far allowable, 271-277. 
ANOTHER SUIT: 

pending in a foreign jurisdiction, 192-197. 
ANSWER: 

in support of plea, 197-221. 

demurrer in connection with, 223. 

distinguished from demurrer, 223-225. 

essentials and effect of, 223-235. 

how far evidence, 229-235. 

exceptions to, 235-245. 

benefit of cross bill in, 314, 315. 
ANSWER TO SUPPORT PLEA: 

v>'hen required, 200-221. 
APPEARANCE: 

hoY/ infants enter, 7-24. 

defined, 157. 

what, gives the court jurisdiction, 157-161. 
BILL IN EQUITY: 

form and requisites of, 69-82. 

parts of, 69-82. 

essential parts of a, 70. 

who responsible for contents of, 117, 118. 

who signs, 117-118. 

filing, 129-133. 

when is a, filed, 129-133. 

as commencement of suit, 133-141. 

to perpetuate testimony, 316-320. 

to examine witnesses de bene esse, 321-326. 

327 



328 IxDEX 

(Referenoes are to the pages.) 

BILL OF REVIEW: 

when allowed, 277-297. 

purpose of, 298-302. 
CERTAINTY: 

degrees of, in pleading, 118-121. 

what degree of, sufficient in equity pleading, 122-126. 

lack of, may arise in what ways, 123. 
CHARGING PART: 

purpose and necessity of, 92-93. 
COMPLAINANTS: 

joint, 37-49. 

effect of misjoinder of, 37-49. 
CONTEMPT: 

practice in case of, 267-268. 
COURT: 

duty of, to infants, 11. 

duty of, toward the estate of insane persons, 28-31. 

CROSS BILL: 

purpose and scope of, 312-314. 

benefit of, in answer, 314-315. 
DE BENE ESSE: 

bill to examine Vv^itnesses, 321-326. 

DECREE: 

pro confesso, against an infant, 18. 

nature, effect, amending, enforcing, 253-268. 

what contained in, 254. 

control over, till filed for record, 256 

how amended, 256. 

distinction between interlocutory and final, 258, 259-261 

DEFAULT: 

effect of, 150-154. 

DEFENSE: 

different, to same matter, 211-213 

DEMURRER: 

when used as a defense, 165-168 

ore tenns, explained, 167-168. 

good in part and bad in part, 170-172. 

legal effect of, 165-172. 

DISCLAIMER: 

defined, 161-163. 
purpose of, 161-163. 

DOCUMENTS: 

how to plead, 127, 128. 



Index 320 



(References are to the pages.) 
ENFORCEMENT OF DECREES: 

procedure in 253-208. 
EQUITY: 

jurisdiction of over insane persons, 25-30. 
EXCEPTIONS: 

to answer, 235-245. 
FINAL DECREE: 

defined, 258-261. 
GOVERNMENTS: 

right of foreigners to sue, 3-7. 
GUARDIANS AD LITEM: 

wlien necessary, 11. 

duties and liabilities of, 15, 16. 

whio may not select, 15, 16. 

IMPERTINENCE: 

consists of what, 12G-128. 
INFANTS: 

suits by and against, 7-24. 
judgments against, 20-24. 
selection of guardian for, 15-16. 

INTERPLEADER: 

requirements of a good bill of, 315, 316. 

INTERROGATING PART: 

importance of, 95-101. 

defendant's obligation to answer, 102-108. 

INTERROGATORIES : 

general and special, 99-101. 

defendant's obligation to answer, 99-101, 102-108, 

INTRODUCTION: 

of bill in equity, 73-76. 

JUDGMENT: 

effect of, against infants, 20-24. 
when bar to a new suit, 2. 

JURISDICTION: 

of equity, over insane persons, 25-31. 
clause of, not essential, 94, 95. 

LUNATICS: 

how suit brought by, 25, 26-27-31. 

MULTIFARIOUSNESS : 

defined and distinguished, 52-68. 

how take advantage of, 66-68. 

distinguished from misjoinder of parties, 66-68. 



330 Index 

(References are to the pages.) 
NE EXEAT: 

object of, 303. 

when granted, 304-306. 
NEXT FRIEND: 

when necessary, 11, 12, 13-24. 

duties and liabilities of, 7-24, 25-31. 

what authority necessary to act as, 10, 11. 
PARTIES: 

how classified, 32-36. 

nominal, who are, 33, 34-36. 

necessary, who are, 33, 34-36. 

indispensable who are, 34-36. 

joint, 37-39. 

misjoinder of, 37-49. 

defendant, 50-52. 
PENAL LAWS: 

enforcement of foreign, by our courts, 5-7. 
PENDENCY OF ANOTHER SUIT: 

plea of, 191-197. 

legal effect of, 191-197. 
PERPETUATE TESTIMONY: 

essentials of a bill to, 316-320. 
PLAINTIFFS: 

joint, general rule, 37-49. 

effect of misjoinder of, 37-49. 

PLEA: 

defined, nature and ofiice, 173-191, 205. 
as a special answer, 180-183. 
proper office of 185-189. 
procedure on filing of, 185-189. 
demurrer to, effect of, 190-191. 
pendency of another suit, 191-197. 
answer in support of, 200-221. 

PRAYER: 

for relief, 108-110. 

special and general, 108-110. 

for process, and essentials, 111-117. 

PROCESS: 

service of upon infants, 24. 

prayer for, and essentials of, 111-117. 

when issued, 141-147. 

PRO CONFESSO: 

decree of, against infants, 18. 
decree of, 147-154. 
effect of. 150-154. 



Indlx 331 

(References are to the pages.) 
PRODUCTION OF PAPERS: 

when, may be enforced, 307-309. 
REPLICATION: 

when necessary, 246-252. 

what may be set up in, 247. 

when special are allowed, 247. 
REVIVOR: 

of suit, 309-310. 
SIGNATURE: 

to bill of equity, 117, 118. 
SOVEREIGNS: 

suits by and against, 3-7. 
STATING PART: 

of bill in equity, 76-82, et. seq. 

allegations in and proof must correspond, 90. 

what much be contained in, 91, 92. 
STATUTE: 

when suit commenced to avoid statute of limitations, 134. 
SUITS: 

by aliens, 1, 2. 

by sovereigns, 3-7. 

by and against infants, 7-24. 

when commenced, 133-141. 
SUPPLEMENTAL BILL: 

when permitted, 249. 
TESTIMONY: 

bill to perpetuate, essentials of, 316-320. 

de bene esse, 321-326. 
UNCERTAINTY: 

in pleading may arise in what ways, 123-126. 
WRITTEN INSTRUMENTS: 

how to plead, 127, 128. 



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