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UNIVERSITY

OF CALIFORNIA

LOS ANGELES

LAW LIBRARY

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> r i*T""" A / ,*» % e \/^-%\S

TREATISE

ON THE

PLEADI N G S

IN SUITS IN THE

COURT OF CHANCERY,

BY ENGLISH BILL.

JOHN MITFORD, Esq.
(NOW LORD REDESDALE.)

THE FOURTH EDITION,

WITH ADDITIONAL REFERENCES AND NOTES,
BY

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

LOW DON:

J. & W. T. CLARKE,

LAW BOOKSELLERS AND PUBLISHERS,

PORTUGAL-STREET, LINCOLN's-INN.

1827.

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

[ "i ]

TO THE READER.

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

a 2

[ iv ]

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

[ v ]

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

(jr. J.

l, New Square,

Lincoln's Inn.

a 3

[ vii ]

PREFACE

THE THIRD EDITION.

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

a 4

Vlll PREFACE.

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

CONTENTS.

INTRODUCTION.

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

I. Of Bills. Chap. I.

21.

Chap. I.
Sect. I.

1. by

whom

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

by the king's attor-
ney general or other

officer -

- 21

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

2. against
whom (

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

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

* I by them-
) selves

1. alone

2. under
the pro-
tection
of others

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

"I. Infants - - - -

!. Married women

,3. Idiots and lunatics -

25
28

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

2. In all other cases

Chap. I.
Sect. H.

I, Praying relief, 34. 37

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

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

\ sons, married women with their husbands, and

J idiots and lunatics with their committees - 30

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

37
48

f1,

2. Not praying relicf,<j

34- 5 1 lo-

tion to the defendant 34.

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

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

A bill to perpetuate the testimony of

witnesses

}

34-

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

5 »
53

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

(

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

A bill of revivor ------ 35.69.76

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

A cross bill 35. 80

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

A bill of review

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

5. A bill to suspend or avoid the execuO

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

6. A bill to cany a decree into execution -

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

8. A bill in nature of a supplemental"!

35-83
35-92

35-94
35-

95
97

bill - . . .) 36.72.98

CONTENTS.

I. Of Bills. Chap. I. — continued.

Chap. I.

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

1. Praying relief - 371

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

I. Origi-
nal bills, f
36

2. A bill of interpleader

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

2. Not praying relief,

ft. A
ief,5i<

(^2. A

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

II. Bills not original

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

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

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

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

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

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

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

4. Bill to impeach a decree on the ground of

fraud

IV. Informations

5. Bill to suspend or avoid the execution of a

decree

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

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

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

Chap. II.
Of defence to
bills - - 102

•'

1. On behalf of the^

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

crown, or of those who

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

( other proper officer - - - 102

ticular protection - 102

2. On behalf of bodies

1 . By themselves, 103-

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

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

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

1. Infants - - - - 103

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

CONTENTS.

I. Of Bills. Chap. II.— continued.

Chap. II.

Sect. II.

Of the

nature of the

various

modes of

defence to a

bill - 106

Chap. II.

Sect. II.

Part I.

Demurrers,

106, 107

I. to
original
bills,
109

I. to re-
lief, 1 1 0

I. That the
subject is not

within the
risdiction
of a court of
equity - 110

a 3

o 'S

= s

— 5

in m

tn Co

C3 .

0 £>
g'3

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

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

110. 153

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

110. 154

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

110. 158

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

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

110. 163

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

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

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

2. Where the courts of ordi-

nary jurisdiction are made

instruments of injustice,

ill. 131

3. Where the principles of law

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

ill. 133

4. To remove impediments to

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

111.134

5. To provide for the safety of

property in dispute pend-
ing a litigation - 111.135

6. To prevent assertion of

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

7. To prevent injury to a third

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

8. To put a bound to vexatious

and oppressive litigation,
112, 143

9. To compel a discovery.

112. 148

10. To preserve testimony,

112. 148

xil CONTENT S.

T. Of Bills. Chap. II.— continued.

II. to

dis-
covery N
109.185

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

110. 163

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

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

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

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

185. 188

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

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

VI. That the situation of the defendant renders

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

II. to

1. Bills of revivor and supplemental bills

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

201
203

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

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

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

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

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

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

CONTENTS.

Xlll

I. Of Bills. Chap. II.— continued.

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

1. to

original
bills,22o

(\. to re-
lief, 220

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

222

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

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

1. That the plaintiff is out-

lawed - - - - 226

2. Excommunicated - - 227

3. A popish recusant - 228

4. Attainted - - - - 228

5. An alien - - - - 229

6. Incapable of instituting a

suit alone - - - 229

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

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

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

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

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

9. That for some
reason founded
on the sub-

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

stance of the J f

2. Matters of re

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

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

1. A decree or
order - 237

2. Another suit
.depending,246

1. A fine - 250

2. A recovery,

253

3. A judgment
or sentence,

253

XIV

CONTENTS

I. Of Bills. Chap. II. — continued.

1. A stated account

2. An award - -

3. A release - -

- 259

- 260

- 261

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

258.

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

10. That supposing the plaintiff intitled to the

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

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

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

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

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

2. todiscovery,28i^

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

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

tion of the de- ure " - 286

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

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

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

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

CONTENTS.

I. Of Bills. Chap. II. — continued.

2. to bills
not ori-
ginal, 288

3. to bills
in the

nature of'

original

bills, 290

4. of mat-
ters rela-
tive to

> 1

*•*,

. To bills of revivor and supplemental bills - - 289

1. Cross bills 290

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

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

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

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

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

294
300

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

Chap. II.
Sect. II.
Part III.

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

1. The general nature of answers

2. The form of an answer - - -

- 306

- 313

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

and their deficiency supplied

4. The nature and form of disclaimers

315
318

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

Chap. III. ri. Of general replications

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

. 3. Of subpoena to rejoin, and rejoinder

323

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

INTRODUCTION.

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

*»'

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

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

2 EXTRAORDINARY JURISDICTION

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

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

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

OF THE COURT OF CUAXC.ERY. 3

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

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

B 2

4 EXTRAORDINARY JURISDICTION.

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

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

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

OF THE COURT OF CHANCERY.

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

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

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

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

B 3

6 EXTRAORDINARY JURISDICTION

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

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

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

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

the Crown, and of debtors and

OF THE COURT OF CHANCERY. 7

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

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

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

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

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

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

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

to further information on the Jefferies against Witherly.

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

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

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

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

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

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

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

B 4

8 EXTRAORDINARY JURISDICTION

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

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

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

OF THE COURT OF CHANCER*. 0

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

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

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

10 EXTRAORDINARY JURISDICTION

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

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

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

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

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

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

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

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

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

although in ordinary cases the an appeal to the Supreme

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

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

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

a quaker puts in his answer and Ramkissenseat v. Barker

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

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

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

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

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

OF THE COURT OF CHANCERY. It

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

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

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

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

12 EXTRAORDINARY JURISDICTION

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

OK THE COURT OF CHANCERY. 1%

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

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

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

14 EXTRAORDINARY JURISDICTION

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

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

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

has been permitted by a court removed by amendment, to

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

thewhole bill had been allowed; to the circumstances of the

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

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

OF THE COURT OF CHANCERY. |g

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

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

l6 EXTRAORDINARY JURISDICTION'

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

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

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

OF THfe COURT OF CHAXCERY. I J

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

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

1 S EXTRAORDINARY JURISDICTION

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

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

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

OF THE COURT OF CHANCERY. \Q

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

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

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

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

C 2

20 EXTRAORDINARY JURISDICTION, &C.

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

( 21 )

CHAPTER THE FIRST.
OF BILLS.

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

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

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

(a) See above, p. 7.

c 3

22 BY WHOM A BILL

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

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

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

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

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

under his peculiar protection, in the instances there alluded

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

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

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

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

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

MAY BE EXHIBITED. 2$

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

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

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

formation, without requiring in which the King having had

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

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

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

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

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

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

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

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

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

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

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

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

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

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

flic less be supported on behalf though the defendants finally

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

and upon an information and expense almost equal to the

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

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

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

c 4

24 BY WHOM A BILL

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

MAY BE EXHIBITED. 25

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

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

from villenage and profession, exhibited under the disability

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

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

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

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

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

Outlawry, excommunication, ject of the suit. Villenage and

and conviction of Popish recu- profession were in the same

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

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

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

by reversal of the outlawry, by 708.

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

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

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

26 BY WHOM A BILL

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

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

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

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

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

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

MAY BE EXHIBITED. 27

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

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

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

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

Ambl. 147. & Stu. 101.

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

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

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

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

this is done upon the next upon the application of the

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

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

28 BY WHOM A BILL

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

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

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

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

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

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

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

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

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

1 Jac. R. 528. 100.

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

MAY BE EXHIBITED. 29

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

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

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

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

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

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

30 BY WHOM A BILL

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

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

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

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

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

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

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

Countess Hoxve and others ; See Wartnaby v. Wartnaby,

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

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

MAY BE EXHIBITED. 3*

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

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

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

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

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

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

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

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

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

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

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

wicke. (t) Williams v. Whinyates,

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

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

S'l

BY WHOM A BILL MAY BE EXHIBITED.

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

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

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

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

( 3i )

CHAPTER I.
SECTION II.

Of the several kinds and distinctions of Bills.

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

34 THE SEVERAL KINDS

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

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

OF BILLS. or

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

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

d 2

$6 FRAME AND EXD OF THE

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

CHAPTER 1.
SECTION III.

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

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

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

SEVERAL KINDS OF BILLS. 37

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

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

» 3

38 FRAME AND END OF THE

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

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

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

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

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

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

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

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

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

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

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

SEVERAL KINDS OF BILLS. 39

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

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

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

4 Madd. 408. seems that a similar observation

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

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

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

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

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

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

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

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

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

D 4

40 FRAME AND END OF THE

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

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

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

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

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

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

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

SEVERAL KINDS OF BILLS. 41

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

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

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

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

42 FRAME AND END OF THE

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

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

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

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

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

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

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

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

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

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

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

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

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

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

SEVERAL KINDS OF BILLS. 43

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

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

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

44 FRAME AND END OF THE

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

SEVERAL KIN.DS OF BILLS. 45

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

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

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

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

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

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

37fI-

46 FRAME AXD END OF THE

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

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

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

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

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

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

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

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

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

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

there are exceptions to this and the cases therein cited,

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

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

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

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

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

SEVERAL KINDS OF BILLS. 47

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

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

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

48 FRAME AND END OF THE

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

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

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

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

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

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

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

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

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

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

SEVERAL KINDS OF BILLS. 49

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

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

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

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

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

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

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

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

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

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

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

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

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

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

50 FRAME AND END OF THE

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

SEVERAL KINDS OF BILLS. r}\

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

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

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

The bill ought also to show that the facts to

(s) l Vern. 442.

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

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

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

E 2

52 FRAME AND END OF THE

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

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

SEVERAL KINDS OF BILLS. 53

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

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

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

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

(b) 5 Madd. 18.

(d) 2 Ves. 398.

(e) Dunn v. Coates,

1 Atk.

288. 1 Vez. 205.

Anon .

2 Vez. 451.

(/) 1 Vez. 205.

E 3

54 FRAME AND END OF THE

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

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

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

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

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

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

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

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

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

SEVERAL KINDS OF BILLS. 55

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

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

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

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

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

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

•204. fant complainant, this liberty

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

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

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

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

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

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

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

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

E 4

$6 FRAME AND END OF THE

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

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

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

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

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

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

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

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

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

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

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

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

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

SEVERAL KINDS OF BILLS. *ff _

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

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

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

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

these assertions. But it is con-

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

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

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

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

58 FRAME AND END OF THE

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

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

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

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

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

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

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

plaintiff seeking to obtain a Cramborne v. Dalmahoy. 1

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

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

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

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

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

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

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

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

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

SEVERAL KINDS OF BILLS. 59

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

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

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

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

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

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

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

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

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

case of a suit by joint-tenants 496.

60 FRAME AND END OF THE

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

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

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

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

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

v J °° But where a bill is filed by a

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

SEVERAL KINDS OF BILLS. 6l

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

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

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

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

62 FRAME AND END OF THE

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

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

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

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

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

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

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

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

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

a very peculiar case on this the purpose of appealing against

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

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

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

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

fence which arose therefrom, (0 Ibid. 217«

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

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

(y) Boeve v. Skipwith page.

several Kinds of bills. tij

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

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

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

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

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

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

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

64 FRAME AND END OF THE

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

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

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

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

3 Atk. 218. administrator has been admit -

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

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

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

(r) In the case of an adminis-

SEVERAL KINDS OF BILLS. 6f,

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

66 FRAME AND END OF THE

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

or by a petition to supersede the bankruptcy of the plaintiff

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

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

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

SEVERAL KINDS OF BILLS. 67

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

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

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

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

bankruptcy of a plaintiff, suing 49G.

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

F 2

FRAME AND END OF THE

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

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

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

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

SEVERAL KINDS OF BILLS. 6<)

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

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

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

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

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

F 3

70 FRAME AND END OF THE

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

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

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

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

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

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

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

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

(m) See Dunn v. Allen, 1

SEVERAL KINDS OF BILLS. 7 1

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

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

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

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

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

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

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

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

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

F 4

72 FRAME AND END OF THE

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

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

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

SEVERAL KINDS OF BILLS. 73

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

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

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

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

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

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

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

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

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

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

74 FRAME AND END OF THE

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

Having considered generally the distinctions be-

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

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

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

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

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

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

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

purpose of making him a party 1 74.

SEVERAL KINDS OF BILLS. 75

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

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

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

*j6 FRAME AND END OF THE

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

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

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

SEVERAL KINDS OE BILLS. 77

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

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

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

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

3 P. Wins. 348. proceeding after abatement,

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

78 FRAME AND END OF THE

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

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

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

(n) 3 P. Wras. 348.

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

SEVERAL KINDS OF BILLS. 79

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

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

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

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

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

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

80 FRAME AND END OF THE

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

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

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

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

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

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

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

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

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

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

SEVERAL KlN'EiS OF BILLS. 8l

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

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

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

a cross-bill to a defendant upon

82 FRAME AN'D END OF THE

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

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

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

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

SEVERAL KINDS OF BILLS. 8 J

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

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

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

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

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

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

(; -2

84 FRAME AND END OF THE

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

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

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

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

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

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

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

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

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

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

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

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

SEVERAL KINDS OF BILLS. 85

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

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

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

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

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

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

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

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

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

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

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

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

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

c 3

86 FRAME AND END OF THE

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

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

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

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

means of introducing an en- cases relating to supplemental

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

of which the plaintiff was review, illustrate this principle,

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

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

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

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

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

SEVERAL KINDS OF BILLS; 87

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

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

G 4

88 FRAME AND END OF THE

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

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

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

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

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

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

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

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

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

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

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

SEVERAL KIXDS OF BILLS. 89

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

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

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

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

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

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

(/) 17 Ves. 177.

(m) 2 Chan. Prac. 634.

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

gO FRAME AND END OF THE

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

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

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

135. was made, Wood v. Griffiths,

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

Hardr. 104. on which the re-hearing is

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

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

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

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

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

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

have been introduced into the except as to mere clerical

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

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

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

140. Duncombe, 2 Madd. R. 391,

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

SEVERAL KINDS OF BILLS. 91

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

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

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

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

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

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

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

92 FRAME AND END OF THE

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

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

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

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

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

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

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

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

SEVERAL KINDS OF BILLS. 93

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

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

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

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

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

was probably meant to extend that where the enrolment of

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

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

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

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

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

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

(d) 3 Atk. 811. 1 Vez. 120. Ca. in Cha. 150. Earl of Car*

Ca. Temp. Talbot, 201. lisle v. Goble, 3 Cha. Rep. 94.

94 FRAME AND END OF THE

by original bill (g). When a decree has been made
by consent, and the consent has been fraudulently
obtained, the party grieved can only be relieved by
original bill (h).

A bill to set aside a decree for fraud must state
the decree, and the proceedings which led to it, with
the circumstances of fraud on which it is impeached.
The prayer must necessarily be varied according to
the nature of the fraud used, and the extent of its ope-
ration in obtaining an improper decision of the court.

5. The operation of a decree signed and enrolled
has been suspended on special circumstances, or
avoided by matter subsequent to the decree, upon a
new bill for that purpose. Thus, during the troubles
after the death of Charles the First, upon a decree
for a foreclosure in case of non-payment of principal,
interest and costs, due on a mortgage, the mortgagor
at the time of payment being forced to leave the king-
dom to avoid the consequences of his engagements
with the royal party, and having requested the mort-
gagee to sell the estate to the best advantage and pay
himself, which the mortgagee appeared to have ac-
quiesced in ; the court, upon a new bill, enlarged the
time for performance of the decree, upon the ground
of the inevitable necessity which prevented the mort-
gagor from complying with the strict terms of it, and
also made a new decree on the ground of the matter
subsequent to the former decree (1).

(g) 1 P. Wms. 737. 2 Vez. (i) Cocker v. Bevis, 1 Ca. in

232. Cha. 61. See also Venables

{h) Ambl. 229. v. Foyle, 1 Ca. in Cha. 3 ; and

SEVERAL KINDS OF BILLS. 95

6. Sometimes, from the neglect of parties, or some
other cause, it becomes impossible to carry a decree
into execution without the further decree of the
court (A). This happens, generally, in cases where
the parties having neglected to proceed upon the de-
cree, their rights under it become so embarrassed by
a variety of subsequent events, that it is necessary to
have the decree of the court to settle and ascertain
them. Sometimes such a bill is exhibited by a person
who was not a party, nor claims under any party to the
original decree, but claims in a similar interest, or is
unable to obtain the determination of his own rights
till the decree is carried into execution (/). Or it may
be brought by or against a person claiming as assignee
of a party to the decree (?n). The court in these cases
in general only enforces, and does not vary, the de-
cree ; but on circumstances it has sometimes considered

Whorevoood v. Whoreivood, 1 relief; and all cases determined
Ca. in Cha. 250; Wakelin v. soon after the Restoration, upon
Walthal, 2 Ca. in Cha. 8. The circumstances connected with
embarrassments occasioned by the prior disturbed state of the
the civil war in the reign of country, ought to be considered
Charles I, and the state of af- with much caution,
fairs after his death, before the (k) 2 Chanc. Rep. 128. 2
restoration of Charles II. occa- Vern. 409.
sioned many extraordinary ap- (I) See peculiar case of im-
plications to the court of chan- lands v. Latouche, 2 Bligh, P. C.
eery for relief, and perhaps in- 566.

duced the court to go far in ex- (m) Organv. Gardiner, 1 Ca.

tending relief; but there were in Cha. 231. Lord Carteret v.

many cases of extreme hard- Paschal, 3 P. Wins. 197. S. C.

ship in which it was deemed on appeal, 2 Bro. P. C 10.

impossible, consistently with Toml. Ed. Binks v. Binls, rep.

established principles, to give 2 Bligh, P. C. 593, note.

96 FRAME AND END OF THE

the directions, and varied them in case of a mistake^) ;
and it has even on circumstances refused to enforce
the decree (0); though in other cases the court, and
the House of Lords, upon an appeal, seem to have con-
sidered that the law of the decree ought not to be
examined on a bill to carry it into execution (p). Such
a bill may also be brought to carry into execution the
judgment of an inferior court of equity (y) if the
jurisdiction of that court is not equal to the purpose;
as in the case of a decree in Wales, which the de-
fended avoided by flying into England (r) : but in this
case the court thought itself entitled to examine the

(n) See, for example, Hamil-
ton v. Houghton, 2 Bligh, P. C.
1 64 ; and see Sel. Ca. in Cha. 1 3.

(0) Att. Gen. v. Day, 1 Vez.
218. 1 Vez. 245. Johnson v.
Northey, Prec. inCh. 134. S.C.
2 Vern. 407. In the last case
the Lord Keeper (1700) seemed
to think that a bill by creditor .
to carry into execution a decree
in favour of their debtor, had

opened that decree In the

case of Sir John IVorden v.
Gerard, in Ch. 1718, the in-
terests of an infant party being
affected by the decree, the court
refused to carry it into execu-
tion upon a bill for that pur-
pose, and made a decree ac-
cording to the rights of the
parties. See Lechmerey.Brasier,
2 Jac. & W. 287. But in Shep-
hardv. Titley, 2 Atk. 348, on a

bill to foreclose a mortgage, after
a bill to redeem, on which a de-
cree had been made, the bill of
foreclosure insisting on an en-
cumbrance not noticed in the
former cause, the latter was on
hearing ordered to stand over,
that the question might be
brought on by re-hearing of the
former cause, or by bill of re-
view.

(p) 2 Vez. 232, Smythe v.
Clay, 1 Bro. P. C. 453. Toml.
Ed. See also Minshullv. Lord
Mohun, 2 Vern. 672, and S. C.
on appeal, 6 Bro. P. C. 32.
Toml. Ed.

(?) 1 Roll. Ab. 373.

(r) Morgan

1 Atk.

408. The case referred to of
a decree in Wales seems to
have been a case of Halford

v. Morgan.

SEVERAL KINDS OF BILLS. OJ

justice of the decision, though affirmed in the House
of Lords (s).

A bill for this purpose is, generally, partly an
original bill, and partly a bill in the nature of an
original bill, though not strictly original (t); and
sometimes it is likewise a bill of revivor, or a supple-
mental bill, or both. The frame of the bill is varied
accordingly.

7. It has been already mentioned (//), that when
the interest of a party dying is transmitted to another
in such a manner that the transmission maybe litigated
in this court, as in the case of a devise, the suit can-
not be revived by or against the person to whom the
interest is so transmitted : but that such person, if
he succeeds to the interest of a plaintiff, is entitled to
the benefit of the former suit ; and if he succeeds to
the interest of a defendant, the plaintiff is entitled
to the benefit of the former suit against him ; and that
this benefit is to be obtained by an original bill in
nature of a bill of revivor. A bill for this purpose
must state the original bill, the proceedings upon it,
the abatement, and the manner in which the interest
of the party dead has been transmitted ; and it must
charge the validity of the transmission, and state the
rights which have accrued by it. The bill is said to
be original merely for want of that privity of title
between the party to the former and the party to the

(s) See Douglas, G. upon an original bill. 1 Sim. Sc

(t) In the case of Pott v. Stu. 206.
Gallini, a decree in a former («) See above, p. 71.

euit was, in effect, extended

C)3 FRAME AND END OF THE

latter bill, though claiming the same interest, as
would have permitted the continuance of the suit by
a bill of revivor. Therefore, when the validity of the
alleged transmission of interest is established, the
party to the new bill shall be equally bound by or
have advantage of the proceedings on the original
bill, as if there had been such a privity between him
and the party to the original bill claiming the same
interest (V) ; and the suit is considered as pending
from the filing of the original bill, so as to save the
statute of limitations, to have the advantage of com-
pelling the defendant to answer before an answer can
be compelled to a cross-bill, and every other advan-
tage which would have attended the institution of the
suit by the original bill if it could have been con-
tinued by bill of revivor merely (?/).

8. It has been also mentioned (z), that if the in-
terest of a plaintiff or defendant, suing or defending
in his own right, wholly determines, and the same
property becomes vested in another person not claim-
ing under him, the suit cannot be continued by a bill
of revivor, and its defects cannot be supplied by a
supplemental bill ; but that by an original bill in the
nature of a supplemental bill the benefit of the former
proceedings may be obtained (a). A bill for this

(x) Clare v. Wordell, 2 Vern. Cha. 134. S. C. 2 Vern. 407.

548. 1 Eq. Ca. Ab. 83. Min- * Sim. & Stu. 495.

Ml v. Lord Mohun, 2 Vern. J& CJlf v" Frederick, 1 P.

Z ,,7 **■ 7 77 Wms. 266.

672. Mordaunt v. Minshull, {z) §ee above p ^

6 Bro. P. C. 32. Toml. Ed. \a) See Houlditch v. Marquis

Johnson v. Northcij. Prec. in of Donegal!, 1 Sim. & Stu. 491.

SEVERAL KINDS OF BILLS. gg

purpose must state the original bill, the proceedings
upon it, the event which has determined the interest
of the party by or against whom the former bill was
exhibited, and the manner in which the property has
vested in the person become entitled. It must then
show the ground upon which the court ought to grant
the benefit of the former suit to or against the person
so become entitled ; and pray the decree of the court
adapted to the case of the plainthT in the new bill (b).
This bill, though partaking of the nature of a sup-
lemental bill, is not an addition to the original bill,
but another original bill, which in its consequences
may draw to itself the advantage of the proceedings
on the former bill (c).

IV. Informations (d) in every respect follow the
nature of bills, except in their style. When they
concern only the rights of the Crown, or of those
whose rights the Crown takes under its particular
protection, they are exhibited in the name of the
king's attorney or solicitor-general as the informant ;
and, as before observed, in the latter case always,
and in the former, sometimes, a relator is named,
who in reality sustains and directs the suit. It may
happen that this person has an interest in the
matter in dispute, and sustains the character of
plaintiff as well as of relator ; and in this case the
pleading is styled an information and bill. An
information concerning the rights of the Queen is
exhibited also in the name of her attorney-general.

(b) 6 Bro. P. C24.T0ml.Ed. (d) See above, p. 22.

If 2

ioo Frame and end ok the

The proceedings upon an information can only
abate by the death, or determination of interest, of
the defendant. If there are several relators, the
death of any of them, while there survives one, will
not in any degree affect the suit ; but if all the re-
lators die, or if there is but one, and that relator dies,
the court will not permit any further proceeding till
an order has been obtained for liberty to insert the
name of a new relator, and such name is inserted'
accordingly (e), otherwise there would be no person
liable to pay the costs (/") of the suit in case the
information should be deemed improper, or for any
other reason should be dismissed.

The difference in form between an information and
a bill consists merely in offering the subject-matter
as the information of the officer in whose name it is
exhibited, at the relation of the person who suggests
the suit in those cases where a relator is named, and
in stating the acts of the defendant to be injurious to
the Crown, or to those whose rights the Crown thus
endeavours to protect. When the pleading is at the
same time an information and bill it is a compound
of the forms used for each when separately ex-
hibited (g).

(e) Att. Gen. v. Poxvel, (f) l Vez. 72. Att. Gen. v.

Dick. 355. And the application Middleton, 2 Vez. 327.

must be made by the attorney (g) It may here be observed,

general, or with his consent, with respect to informations on

Att. Gen.v. Plumptree, 5 Madd. behalf of public charities, that

452. Wellbdoved v. Jones, 1 the practice of this court has

Sim. & Stu. 40; and see Anon, been to control the governors

Sel. Ca. in Cha. 69. Att. Gen. or other directors of them, in

v. Fellows, 1 Jac. & W. 254. those cases only in which they

SEVERAL KINDS OF BILLS. 101

In this investigation of* the frame and end of the
several kinds of bills the matters requisite to the
sufficiency of each kind have been generally con-
sidered ; but they will in some degree be more par-
ticularly noticed in the following chapter, in treating
of the defence which may be made to the several
kinds of bills, and consequently of the advantages
which may be taken of their insufficiency both in
form and substance.

have had the disposition of its empowered hy the 52 Geo. 3,

revenues ; and that this limited c. 101, to interfere in such

authority has been exerted cases as relate only to the plain

under its general jurisdiction in breach of trusts created for

relation to trusts : although it charitable purposes, on what is

has gone beyond the ordinary technically termed a petition

cases on that subject by regu- in a summary way. As to

lating the exercise of their dis- which see also ex parte Berk-

cretion. 2 Vez. 89. 2 Vez. hampstead School, 2 Ves. &

328. Att. Gen. v. Foundling Bea. 134. Ex parte Rees,

Hospital, 2 Ves. J. 42. S. C. 3 Ves. & Bea. 10. Ex parte

4 Bro. C. C. 165. Att. Gen. Brown, Coop. It. 295. Ex

v. Dixie, 13 Ves. 519. Att. parte Skinner, 2 Meriv. 453.

Gen. v. Earl of Clarendon, 17 S. C. 1 Wils. It. 14. Ex parte

Ves. 491. 3 Ves. & Bea. 154. Greenhouse, 1 Swanst. 60. S. C.

Att. Gen. v. Brown, 1 Swanst. 1 Wils. R. 18. In re Sleivings

265. Att. Gen. v. Mayor of Charity, 3 Meriv. 707. Att.

Bristol, 3 Madd. 319. S. C. Gen. v. Green, 1 Jac. & W.

2 Jac. & W. 294. Foley v. 303. In re Bedford Charily,

IVontner, 2 Jac. & W. 245. 2 Swanst. 470. In the matter

Att. Gen. v. Buller, 1 Jac. It. of St. Wenns Charity, 2 Sim,

407. Att. Gen. v. Heelis, 2 & Stu. 6Q ; and see 2 Swanst.

Sim. & Stu. 67. Att. Gen. v. 518. 525. And, it may here

Mayor of Stamford, reported be added, that it is also autho-

2 Swanst. 591. Att. Gen. v. rized to decide in certain other

Vivian, 1 Ituss. It. 226. It cases relating to the property

has already been observed in of charities, upon a petition,. by

the text, p. 18, that this Court is the ;-,9 Geo. 3, c. 91.

H 3

102 BY- WHOM A SUIT

CHAPTER THE SECOND.
Of the DEFENCE to BILLS.

SECTION I.

By whom a Suit may be defended.

N treating of the defense which may be made to
a bill it will be proper to consider, I. By whom
a suit may be defended. II. The nature of the va-
rious modes of defence ; under which head will be
considered, l, demurrers, 2, pleas, 3, answers and
disclaimers, or any two or more of them jointly, each
referring to a separate and distinct part of the bill.

When the interest of the Crown, or of those whose
rights are under its particular protection, is concerned
in the defence of a suit, the Kings attorney-general,
or during the vacancy of that office the solicitor-
general, becomes a necessary party to support that
interest (a); but it has been already observed, that
a suit in the court of chancery is not the proper
remedy where the Crown is in possession, or any
title vested in it is sought to be divested, or af-
fected (Z>), or its rights are the immediate and sole
object of the suit. The Queen's attorney or soli-

(a) Balch v. Wastall, l P. (b) See above, p. 31.

Wms. 445. 2 Sch. & Lefr. 617.

MAY BE DEFENDED. 103

citor seems to be the party necessary to defend her
rights (c).

All other bodies politic and corporate, and persons
who do not partake of the prerogative of the Crown,
and have no claim to its particular protection, defend
a suit either by themselves, or under the protection of
or jointly with others. Bodies politic and corporate,
and persons of full age, not being married women,
or idiots or lunatics, defend a suit by themselves ;
but infants, idiots and lunatics, are incapable by
themselves of defending as they are of instituting a
suit ; and married women can only defend jointly
with their husbands, except under particular circum-
stances, unless a special order is obtained to authorize
or compel their defending separately.

Infants institute a suit by their next friend ; but
to defend a suit the court appoints them guardians
who are usually their nearest relations, not concerned
in point of interest in the matter in question (d). If
a person is by age, or infirmities, reduced to a second
infancy, he may also defend by guardian (e).

Idiots and lunatics defend by their committees (/),

(c) See 2 Roll. Ab. 213. But a 357. Williams v. Wynn, 10
queen dowager has been sued as Ves. 159. Hill v. Smith, 1
a common person, 9 Hen. VI. Madd. R. 290. Lushington v.
53. Writ of'annuityagainst Joan, Setvell, 6 Madd. 28. sed. rid.
queen dowager of* Henry IV. Tappen v. Norman, 1 1 Ves. 563.

(d) OJJley v. Jenney, 3 Ch. (e) Leving v. Caverly, Prec.
Rep. 51. On the subject of in Chan. 229. 1 Eq. Ca. Ab.
appointing guardians ad litem 281. Wilson v. Grace, 14 Ves.
for infant defendants, see Bras- 172. And see Alt. Gen. v.
sington v. Brassington, 3 Anstr. Waddington, 1 Madd. R. 321.
369. Eylcs v. Le Gros, 9 Ves. {/) 1 Vern. io(>. Lyon v.
12. Jongsma v. PJiel, 9 Ves. Mercer, 1 Sim. & Stu. 356.

H 4

104 ** WHOM A SUIT

who are by order of the court appointed guardians
for that purpose as a matter of course (g) ; and if
it happens that an idiot or lunatic has no com-
mittee (/*), or the committee has an interest opposite
to that of the person whose property is intrusted to
his care (i), an order may be obtained for appointing
.another person as guardian for the purpose of de-
fending a suit (A). So if a person who is in the
condition of an idiot or lunatic, though not found
such by inquisition, is made a defendant, the court
upon information of his incapacity will direct a
guardian to be appointed (/).

A married woman, though she cannot by herself
institute a suit, and if her husband is not joined with
her must seek the protection of some other person as
her next friend, may yet, by leave of the court, de-
fend a suit separately from her husband without the
protection of another (m). Thus, if she claims, in
opposition to any claims of her husband, or if she
.lives separate from him (w), or disapproves the de-
fence he wishes her to make (a), she may obtain an
.order for liberty to defend the suit separately (p),

(g) Westcomb v. Westaomb, .Feme, I. a. 20. 1 Sim. & Stu.

Dick. 233. 1C3.

(//) Hoivlett v. Wilbraliam, (n) Portman v. Pophant,

•5 Madd. 423. Tothill,75. Jacksonv.Hatvortk,

(i) Snellv. Hyal, Dick. 287. 1 Sim. & Stu. 161.

see Lloyd v. , Dick. 460. (0) Ex parte Halsam, 2 Atk.

(k) Hotvlelt v. Wilbraliam, 50. 2 Eq. Ca. Ab. 66.
.5 Madd. 423. (p) Potoel v. Prentice, Ca. t.

(/) Anon. 3 P. Wms. ill, n. Hardw. 258. Wybourn v. Blunt,

See Wilson v. Grace, 14 Ves. Dick. 155. A separate answer

J72' ln,t in by a married woman with-

(,m) 4 .Vin. Ab. 147. Baron & out an order for the purpose may

MAY BE DEFENDED. 105

and her answer may be read against her(y). If a
husband is plaintiff in a suit, and makes his wife
a defendant, he treats her as a feme sole, and she
may answer separately without an order of the court
for the purpose (r). The wife of an exile, or of one
who has abjured the realm, may defend as she may
sue alone (s) ; and if a husband is out of the juris-
diction of the court (7), though not an exile, or if he
cannot be found (//), his wife may be compelled to
answer separately. If a married woman obstinately
refuses to join in defence with her husband, she may
also be compelled to make a separate defence ; and
for that purpose an order may be obtained that pro-
cess may issue against her separately (>). Except
under such circumstances a married woman can only
defend jointly with her husband (j/).

be suppressed as irregularly
filed. But if filed with her ap-
probation, and accepted by the
plaintiff, it will not be deemed
irregular upon objection taken
by her merely for want of the
order for leave to file it sepa-
rately ; and she will be bound
by an offer contained in it.
See Duke ofChandos v. Talbot,
i P. Wms. 371. S. C. Sel. Ca.
in Cha. 24.

{q) Travers v. Buckly, 1
Vez. 383.

(r) Ex parte Strangrrvays,
3 Atk. 478. Brooks v. Brooks,
Prec. in Chan. 24. Ainslie v.

iMcdlicott, 13 Ves. 2(i(5.

(s) See page 24, ig Co. Litt.
132. b. 133. a. and 2 Vern. 105.

it) Carlcton v. M'Enzic, 10

Ves. 442. Bunyan v .Mortimer,
6 Madd. 278. "

(u) Bell v. Hyde, Prec. in
Ch. 328.

(x) Pain v. , 1 Ca. in

Cha. 296. 1 Sim. & Stu. 163.

(y) As to the answer of a
married woman, see further,
Plomer v. Plomer, 1 Ch. Rep.
68. Wrottesley v. Bendish,
3 P. Wms. 235. Penne v.
Peacock, Ca. t. Talb. 41. Mur-
riet v. Lyon, Bunbury, 1 75.
Ex parte Halsam, 2 Atk.
50. Traverse v. Buckley, 1
Wils. R. 264. Barry v. Cane,
3 Madd. 472. Jackson v. Ha-
tvort/t, 1 Sim. & Stu. 161.
Garey v. W hittingham, 1 Sim.
& Stu. 163. Buskell v. Bushcll,
1 Sim. & Stu. 164.

( io6 )
C H A P T E R II.

SECTION II.

PART I.

Of the Nature of the various Modes of Defence to
a Bill; and first of Demurrers.

IT has been mentioned (a) that the person against
whom a bill is exhibited, being called upon to
answer the complaint made against him, may defend
himself, 1, By demurrer, by which he demands the
judgment of the court whether he shall be compelled
to answer the bill or not (b). 2, By plea, whereby
he shows some cause why the suit should be dismissed,
delayed, or barred (c). 3, By answer, which, con-
troverting the case stated by the plaintiff, confesses
and avoids, or traverses and denies, the several parts
of the bill (d) ; or, admitting the case made by the
bill, submits to the judgment of the court upon it,
or upon a new case made by the answer, or both : or
by disclaimer, which at once terminates the suit, the
defendant disclaiming all right in the matter sought
by the bill (e). And all or any of these modes of
defence may be joined, provided each relates to a
separate and distinct part of the bill.

It has also been observed that the grounds on

(a) Page 13, 14, 15, 16. (d) 2 West. Symb. Chan. 194.

(b) Pract. Reg. 162. Wy. Ed. Pract. Reg. 11. Wy. Ed.

DEFENCE. 107

which defence may be made to a bill, either by
answer, or by disputing the right of the plaintiff to
compel the answer which the bill requires, are various
both in their nature and in their effect. Some of
them, though a complete defence as to any relief,
are not so as to a discovery ; and when there is no
ground for disputing the right of the plaintiff to the
relief prayed, or if the bill seeks only a discovery, yet
if there is any impropriety in requiring the discovery,
or if it can answer no purpose for which a court of
equity ought to compel it, the impropriety of com-
pelling the discovery, or the immateriality of the dis-
covery if made, may be used as a ground to protect
the defendant from making it. Different grounds of
defence therefore may be applicable to different parts
of a bill ; and every species of bill requiring its own
peculiar ground to support it, and its own peculiar
form to give it effect, a deficiency in either of these
points is a ground of defence to it.

Whenever any ground of defence is apparent on
the bill itself, either from matter contained in it, or
from defect in its frame, or in the case made by it,
the proper mode of defence is by demurrer. A de-
murrer is an allegation of a defendant, which, admit-
ting the matters of fact (/) alleged by the bill to
be true, shows that as they are therein set forth they
are insufficient for the plaintiff to proceed upon or to
oblige the defendant to answer (g) ; or that for some

(f) A demurrer confesses B. 95. 3 Meriv. 503. Cuthbert

matter of fact only, and not v. Creasy, 6 Madd. i8y.
matter of law. Lord Raym. 18. (g) Prac. Reg. 162 Wy. Ed.

1 Ves. J. 78. •.%. '2 Ves. &

108 DEMURRERS.

reason apparent on the face of the bill (h), or because
of the omission of some matter which ought to be
contained therein, or for want of some circumstance
which ought to be attendant thereon, the defendant
ought not to be compelled to answer. It therefore
demands the judgment of the court whether the de-
fendant shall be compelled to make answer to the
plaintiff's bill, or to some certain part thereof (i).
The causes of demurrer are merely upon matter in
the bill (k), or upon the omission (/) of matter which
ought to be therein or attendant thereon ; and not
upon any foreign matter alleged by the defendant (ni).
The principal ends of a demurrer are, to avoid a dis-
covery which may be prejudicial to the defendant, to
cover a defective title, or to prevent unnecessary ex-
pense. If no one of these ends is obtained, there is
little use in a demurrer. For, in general, if a de-
murrer would hold to a bill, the court, though the
defendant answers, will not grant relief upon hearing
the cause. There have been, however, cases in which
the court has given relief upon hearing, though a
demurrer to the relief would probably have been
allowed («). But the cases are rare.

(h) Ord. in Cha. 26. Ed. Bea.

0) 3 P. Wms. 80. Prac.
Reg. 162. Wy. Ed. See 2 Sch.
{& Left, 206.

(k) 2 Vez. 247.

(I) 3 P. Wms. 395.

{m) Ord. in Cha. 26. Ed. Bea.

n) 3 P. Wms. 150. 12 Mod.
171. It seems that the court,
upon the argument of a de-

murrer, decides upon the facts
as stated in the bill, whether if
the cause were to proceed to a
hearing, and they were proved
or confessed, a decree would
then be made. See 2 Ves. J.
97. Brook v. Hewitt, 3 Ves.
253. 6 Ves. 686. 7 Ves.
245. 2 Sch. & Lef. 638. 6
Madd. 95.

DEMURRERS, log

Bills have been already considered under three
general heads; 1, original bills; 2, bills not original ;
and, 3, bills in the nature of original bills. The
several kinds of bills ranged under the second and
third heads being Consequences of bills treated of
under the first head, the defence V^hich may be made
to original bills in its variety comprehends the several
defences which may be made to every other kind of
bill, except such as arise from the peculiar form and
object of each kind. In treating therefore of demur-
rers it will be convenient first to consider demurrers
to original bills, under which head the nature of
demurrers in general, and the principal grounds of
demurrer to every kind of bill, will be necessarily
noticed : the distinct causes of demurrer peculiar to
the several other kinds of bills will be then men-
tioned ; and in the third place will be considered
the frame of demurrers in general, and the manner
in which their validity is determined.

In treating of original bills they have been divided
into bills praying relief, and bills not praying relief;
and it has been mentioned that both require a dis-
covery from the party against whom the bill is exhi-
bited. Demurrers to original bills may therefore be
considered under two heads ; first, demurrers to relief,
which frequently include a demurrer to discovery ;
and secondly, demurrers to discovery only, which
sometimes consequentially affect the relief. Under
these heads will necessarily be considered the causes
of demurrer, as well to bills which seek a discovery
only as to such as likewise pray relief.

110 DEMURRERS.

From what has been observed in a preceding page
it may be collected that the principal grounds of
objection to the relief sought by an original bill, which
can appear on the bill itself, and may therefore be
taken advantage of by demurrer, are these (o) ; I,
that the subject of the suit is not within the juris-
diction of a court of equity ; II, that some other
court of equity has the proper jurisdiction ; III, that
the plaintiff is not entitled to sue by reason of some
personal disability ; IV, that he has no interest in
the subject, or no title to institute a suit concerning
it ; V, that he has no right to call on the defendant
concerning the subject of the suit ; VI, that the de-
fendant has not that interest in the subject which can
make him liable to the claims of the plaintiff ;
VII, that for some reason founded on the substance
of the case the plaintiff is not entitled to the relief he
prays. To these may be added, VIII, the deficiency
of the bill to answer the purpose of complete justice:
and IX, the impropriety of confounding distinct sub-
jects in the same bill, or of unnecessarily multiplying
suits. When the discovery sought by a bill can only
be assistant to the relief prayed, aground of demurrer
to the relief will also extend to the discovery ; but if
the discovery may have a further purpose, the plain-
tiff may be entitled to it though he has no title to

(o) It has been said that a apply to the court that the bill

defendant may demur to a bill maybe dismissed. Anon. Mose-

if it appears upon the face of it ly,47. 356. Anon. Bunbury, 17.

to be brought for a very small Omens v. Smith, Comyn, 715.

sum ; but it is most usual to Brace v. Taylor, 2 Atk. 253.

DEMURRERS. Ill

relief. In considering, therefore, these several
grounds of demurrer to relief, such as may, and such
as cannot, extend to discovery likewise, will be dis-
tinguished.

I. The general objects of the jurisdiction of a
court of equity have been noticed in a former page(p) ;
and from thence it may be collected, that the juris-
diction, when it assumes a power of decision, is to be
exercised, l, where the principles of law, by which
the ordinary courts are guided, give a right, but the
powers of those courts are not sufficient to afford a
complete remedy, or their modes of proceeding are
inadequate to the purpose ; 2, where the courts of
ordinary jurisdiction are made instruments of injus-
tice ; 3, where the principles of law by which the
ordinary courts are guided give no right, but upon the
principles of universal justice the interference of the
judicial power is necessary to prevent a wrong, and
the positive law is silent : and it may also be collected
that courts of equity, without deciding upon the rights
of the parties, administer to the ends of justice by
assuming a jurisdiction, 4, to remove impediments
to the fair decision of a question in other courts ;
5, to provide for the safety of property in dispute
pending a litigation, and to preserve property in
danger of being dissipated or destroyed by those to
whose care it is by law intrusted, or by persons
having immediate but partial interests ; 6, to restrain
the assertion of doubtful rights in a manner pro-

( p) Page 4, 5.

H2 DEMURRERS.

ductive of irreparable damage ; 7, to prevent injury'
to a third person by the doubtful title of others ; and
8, to put a bound to vexatious and oppressive litiga-
tion, and to prevent multiplicity of suits : and further,
that courts of equity, without pronouncing any judg-
ment which may affect the rights of parties, extend
their jurisdiction, 9, to compel a discovery, or obtain
evidence which may assist the decision of other courts;
and 10, to preserve testimony when in danger of being-
lost before the matter to which it relates can be made
the subject of judicial investigation.

1. Cases frequently occur in which the prin-
ciples {(j) by which the ordinary courts are guided in
their administration of justice give a right, but from
accident or fraud, or defect in their mode of proceeding,
those courts can afford no remedy, or cannot give the

{q) The existence of courts the ordinary courts have not

of equity in England distinct admitted of the application,

from the courts of ordinary ju- And from time to time the

risdiction, has suggested an idea courts of common law have also

that the ordinary courts, and been induced to admit, as

especially the courts of common grounds of their decision, rules

law, have not in their adminis- established in the courts of

tration of justice any recourse equity, which they had before

to such principles of decision as rejected as clashing with esta-

are merely rules of equity. But blished rules of the common

in fact those principles have law; and for some purposes

been as constantly applied by they have also noticed prin-

the ordinary courts as by the ciples of decision established in

courts of equity, except where the courts of equity, which the

they have clashed with esta- forms of proceeding in the

blished rules of the common courts of common law have

law, and where the forms ob- not enabled them directly to

served in the proceedings of enforce.

DEMURRERS. 113

most complete remedy ; and sometimes the effect of
«i remedy attempted to be given by a court of ordi-
nary jurisdiction is defeated by fraud or accident. In
such cases courts of equity will interpose to give those
remedies which the ordinary courts would give if their
powers were equal to the purpose, or their mode of
administering justice could reach the evil ; and also to
enforce remedies attempted to be given by those
courts when their effect is so defeated.

Thus where an instrument on which a title is
founded, as a bond, is lost, a court of equity will in-
terfere to supply the defect occasioned by the accident,
and will give the same remedy which a court of com-
mon law would have given if the accident had not
happened (r). If an instrument has been destroyed,
or is fraudulently suppressed, or withheld from the
party claiming under it, courts of equity will also give
relief (a); as they will generally lend their aid when-
ever by fraud or accident a person is prevented from
effectually asserting in the courts of ordinary juris-
diction rights founded on principles acknowledged
by those courts.

In some instances courts of law have acted on the

(r)i Ca.in Cha. 11. l Eq. Ca. Hob. log. Eyton v. Eyton, i

Ab. 92. l Atk. 287. Anon. 2 Vern. 380. Sanson v. Rurnsey,

Atk.61. Anon. 3 Atk. 17. l Vez. 2 Vern. 561. Dalston v. Coats-

344. 5 Ves. 238. 7 Ves. 19. worth, 1 P. Wms. 731. Cowper

East India Company \.Boddam, v. Earl Cowper, 2 P. Wms.

9 Ves. 464. Seagrave v. Sea- 720. Atkins v. Farr, 1 Atk.

grave, 13 Ves. 439. Smith 287. Tucker v. Phipps, 3 Atk.

v. Bichiell, 3 Ves. & B. 51, n. 359. 1 Vez. 392. Saltern v.

Stokoev.Robson, 3 Ves.&B. 51. Melhuish, Ambl. 249. Bowles

(s) See Lord Hunsdon's case, v. Stewart, 1 Sch. & Lefr. 209.

114 DEMU.RR.ERS.

supposed destruction or suppression of an instrument
where formerly those courts conceived they could not
act for want of the instrument, especially in the par-
ticular mode of proceeding. Thus in the supposed
suppression or destruction of a lease for lives under a
power in a settlement, the supposed lessee was per-
mitted to obtain on parol testimony a verdict and
judgment in ejectment, upon a feigned demise, the
form of the proceeding not requiring the lease in
question to be in any manner stated in the pleadings,
so that it could not appear upon the record under
what title the recovery was had, or what specific
lands were in the supposed lease, what were the lives
for which it was granted, what the rent reserved, or
what covenants bound either party ; or whether the
lease was or was not according to the powers under
which it was alleged to have been made. The con-
sequence necessarily was a suit in equity to have
all those facts ascertained, and to restrain the exe-
cution of the judgment in ejectment in the mean

time.

In restraining waste by persons having limited in-
terests in property, the courts of equity have gene-
ally proceeded on the ground of the common-law
rights of the parties, and the difficulty of obtaining
immediate preservation of property from destruction
or irreparable injury by the process of the common
law (t) ; but upon this subject the jurisdiction has

(t) See Field v. Jackson, 784. Smith v. Collyer, 8 Ves.
Dick. 599. Davis v. Leo, 6 Ves. 89. 9 Ves. 356. 19 Ves. 154.

demurrer's; n^

been extended to cases in which the remedies pro-
vided in those courts could not be madeto apply (w).

Where an act of parliament has expressly given
a right, the courts of ordinary jurisdiction have been
found incompetent to give, in all cases, a full and
complete remedy, and the courts of equity have
therefore interposed. Thus in the case of a person
who had been discharged under an act for relief of
insolvent debtors, by which his future effects were
made liable to the demand of his creditors, but his
person was protected ; the court of chancery, exer-
cising its extraordinary jurisdiction, enforced a judg-
ment of a court of common law against his effects,
which were so circumstanced as not to be liable to
execution at the common law Qv).

Where parties by contract have given a right, but
have not provided a sufficient remedy, the courts of
equity have also interfered. Thus where a rent was

(u) As to the instances where which are cases of equitable

the title is legal, and the courts waste, see Chamberlyne v. Hum,'

of law admit the existence of mer, 1 Bro. C. C. 166. S. C.

an injury, but do not afford Dick. 600. Marquis of Doton-

a remedy, see 2 Freem. 54. shire v. Sandys, 6 Ves. 107.

Perrot v. Perrot, 3 Atk. 94. Lord Tamtvorth v. Lord Ferrers,

3Atk. 210. Farrantv. Lovel, 6 Ves. 419. Williams v. M'Na-

3 Atk. 723. 3 Atk. 755, 756. mara, 8 Ves. 70. Burges v.

Mollineuxv. Powell, 3 P. Wms. Lamb, \6 Ves. 174. Day v.

268, n. 3 Bro. C. C. 544. Merry, 16 Ves. 375. Mar-

Onsloio v. , 16 Ves. 1C3. chioness of Ormonde v. Ky~

Pratt v. Brett, 2 Madd. R. 62. nersley, 5 Madd. 369. Lush-

Brydges v. Stephens, 6 Madd. ington v. Boldero, 6 Madd. 149.

279 ; as to those where the title is Coffin v. Coffin, 1 Jac. R. 70.

equitable, see 19 Ves. 151. 155; (x) Edgell v. Haywood, 3

and as to those where the injury Atk. 352. See 1 Jac. & W.

is not acknowledged at law, 371.

I 2

Il6 DEMURRERS.

settled upon a woman by way of jointure, but she
had no power of distress, or other remedy at law,
the payment, according to the intent of the convey-
ance, was decreed in equity (?/). So where parties,
meaning* to create a perfect title, have used an im-
perfect instrument, as a feoffment without livery of
seisin (z) ; a bargain and sale without enrolment (a) ;
a surrender of a copyhold not presented according
to the custom of the manor (b) ; courts of equity have
considered the imperfect instrument as evidence of a
contract for making a perfect instrument, and have re-
medied the defect even against judgment-creditors (c)
who had gained a lien in the land in question, though
when the consideration has been inadequate relief
has not been extended so far (7/). Where the Legis-
lature has declared that an instrument wanting a
particular form should be null and void to all intents
and purposes, and it was manifestly the design of
the Legislature that those words should operate to
-the fullest extent, relief has been refused. Thus a
bill of sale of a ship wanting a formality required
by the Register-act was not made good in equity
against assignees of the vendor become bankrupt (e).

(y) Plunhet v. Brereton, l (c) See l P. Wm. 279.
Ch. Rep. 5 ; and see Duke of (d) Finch v. Earl of Win-
Leeds v. Potuell, 1 Vez. 171. chelsea, 1 P. Wins. 277. 283.
(2) Burgh v. Francis, cited (e) Hibbert v. Rolleston, 3
P. Wins. 279. Burgh v. Bro. C. C. 571. 6 Ves. 745.
Burgh, Rep. t. Finch, 28. Speldt v. Lechmere, 13 Ves.

(a) 6 Ves. 745. 588. Thompson v. Leake, 1

(b) Taylor v. Wheeler, 2 Madd. R. 39.
Vern. 564.

DEMURRERS. II J

Relief has also been given where a remedy at law
was originally provided, but by subsequent accident
could not be enforced, as, where by confusion of
boundaries of lands remedy by distress for rent was
defeated (f). So if the remedy afforded by the ordi-
nary courts is incomplete a court of equity will lend
its aid to give a complete remedy (g). Upon this
ground a bill was admitted for recovery of an ancient
silver altar claimed by the plaintiff as treasure-trove
within his manor : for though he might have reco-
vered at law the value in an action of trover, or the
thing itself, if it could be found, in an action of
detinue, yet as the defendant might deface it, and
thereby depreciate the value, it was determined that
the defect of the law in that particular ought to be
supplied in equity (//). And where an estate was
held by a horn, and a bill was brought by the
owner of the estate to have the horn delivered to
him, a demurrer was over-ruled (i).

Upon the same principle (k) the jurisdiction of the
court is supported in the very common case of a bill
for delivery of deeds or writings (/), suggesting that

(f) l Vez. 17-2. See North therv. Lord Lotvther, l'jYes.gs.
x. Earl and Countess of Straf- (i) Pusey v. Pusey, 1 Vern.

ford-, 3 P. Wms. 148. Bouve- 273; and see Earl of Maccles-

rie v. Prentice, 1 Bro. C. C. field v. Davis, 3 Ves. & Bea. 16.

200, and Duke of Leeds v. Cor- (k) See 2 Atk. 306.

•partition of Neve Radnor, 2 Bro. (I) The court of chancery has

C. C. 338, S. C. ib. 518, and long exercised its extraordinary

the cases there cited. jurisdiction in this case. See

(g) See 9 Ves. 33. 9 Edw. IV. 41 B. and Stat. 3s
(h) Duke of Somerset v.Coo/c- Hen. VIII. c. 36. s. 9; and

son, 3 P. Wms. 390 ; and see see on this subjoct Broum v.
Fells v. Read, 3 Ves. 7 1 . Loiv Brown, Dick. 62. 1 Madd..

1 3

DEMURRERS.

they are in the custody or power of the defendant ;
though in early times it seems to have been consi-
dered that the jurisdiction did not extend to cases
where an action of detinue would lie (iii).

In the case of contracts or agreements this prin-
ciple is carried to the extent. The principles by
which the courts of common law direct their deci-
sions on the subject acknowledge the mutual right
of the contracting parties to specific performance of
the agreements they have made ; but the mode of
proceeding in those courts enables them only to
attempt to compel performance by giving damages
for non-performance. Here therefore the courts of
equity interfere to give that remedy which the
ordinary courts would give if their mode of admi-
nistering justice would reach the evil, by decreeing,
according to the principles of the common law as
well as of natural justice, specific performance of the
agreement (w). This however extends only to con-
tracts of which a specific performance is essential to

R. lg2. Crow v. Tyrrell, 3
Madd. 179. Knye v. Moore,
1 Sim. & Stu. 61. Balch v.
Symes, 1 Turn. 87.

(m) 9 Edw. IV. 41 B. See
also 39 Hen. VI. 26. Brooke
Praer. 45 ; which seems to have
been in effect a bill for disco-
very and account.

(n) 13 Ves. 76. 228. 2 Sch.
& Lefr. 556. 1 Jac. & W. 370.
The courts of equity decree per-
formance of agreements in many
cases where no action would lie

at the common law for non-
performance ; and on this head
great complaints have been
made, the justice of which it
is beyond the purpose of this
treatise to consider. See 1
Fonbl. Treat, of Eq. 151, n. (c)
and 2 Sch. & Lefr. 347, and
Williams v. Steward, 3 Meriv.
472. As to the propriety of
extending the application of the
doctrine of part performance,
see 3 Ves. 712, 713. 6 Ves.
32. 37. 2 Sch. & Lefr. 5.

DEMURRERS. ] It)

justice (o) ; for if damages for non-performance are
all that justice requires, as in the case of a contract
for stock in the public funds, a court of equity will
not interfere Q»). In other cases where compelling
a specific act is the only complete remedy for an
injury, and the ordinary courts can attempt to give
this remedy only by giving damages, the courts of
equity will interfere to give the specific remedy,
especially if the right has been established by the
determination of the ordinary courts (</).

In some cases, as in matters of account (r), parti-
tion of estates between tenants in common (*), and

(o) See 3 Bro. C. C. 543.
8 Ves. 163. 2 Sch. & Lefr. 347.

(p) Cudv. Rutter, 1 P.Wms.
570. 10 Ves. 161. 13 Ves. 37.

(q) It is diffieult to reconcile
all the cases in which the courts
of equity have compelled the

Frauklyn v. Tuton, 5 Madd.
469. Dawson v. Ellis, 1 Jac.
& W. 524. Baxter v. Conolly,
1 Jac. & W. 576. Martin v.
Mitchell, 2 Jac. & W. 413.
Beaumont v. Dukes, 1 Jac. R.
422. Gordon v. Smart, 1 Sim. &

performance of agreements, or Stu. 66. Brysonv. Whitehead,

refused to do so, with each 1 Sim. & Stu. 74. Doloret v.

other ; and in some cases where Rothschild, 1 Sim & Stu. 590.

performance has been decreed, Lingen v. Simpson, 1 Sim. &

it is difficult to reconcile the
decisions with the principles
of equal justice. The cases
and their varieties are numerous,
and have been ably collected
in 1 Fonbl. Treat, of Equity.
Of the later cases on the sub-
ject, see Morphett v. Jones, 1
Swanst. 172. S. C. 1 Wils.
Ch. R. 100. Garrard v. Grin-
ling, 1 Swanst. 1. 244. S. C.
1 Wils. Ch. R. 460. Walker
v. Barnes, 3 Madd. 247. Hud-
son v. Bart ram, 3 Madd. 440.

Stu. 600. Agar v. Mac/dew,
Sim. & Stu. 418. Hasker v. Sut-
ton, 2 Sim. & Stu. 513. Lewin
v. Guest, 1 Russ. R. 325. Att-
xvood v. , 1 Russ. R. 353.

(r) See 2 Ves. 388. Corpo-
ration of Carlisle v. Wilson, 13
Ves. 276. 1 Sch. & Lefr. 309.

(s) See 2 Freem. 26. 2 Ves.
J. 570. Turner v. Morgan, 8
Ves. 143. 17 Ves. 552. 1 Ves.
& B. 555. Miller v. Warming-
ton. 1 Jac. & W. 484.

I 4

120 DEMURRERS.

assignment of dower (t), a court of equity will enter-
tain jurisdiction of a suit, though remedy might
perhaps be had in the courts of common law. The
ground upon which the courts of equity first inter-
fered in these cases seems to have been the difficulty
of proceeding to the full extent of justice in the
courts of common law(w). Thus though accounts
may be taken before auditors in an action of account
in the courts of common law, yet a court of equity
by its mode of proceeding is enabled to investigate
more effectually long and intricate accounts in an
adverse way, and to compel payment of the balance
which ever way it turns.

In the case of partition of an estate, if the titles of
the parties are in any degree complicated, the diffi-
culties which have occurred in proceeding at the
common law have led to applications to courts of
equity for partitions, which are effected by first
ascertaining the rights of the several persons inte-
rested, and then issuing a commission to make the
partition required, and upon return of the commis-
sion, and confirmation of that return by the court,
the partition is finally completed by mutual convey-
ances of the allotments made to the several parties (a).
But if the infancy of any of the parties, or other
circumstances, prevent such mutual conveyances,
the decree can only extend to make the partition,

(t) See Curtis v. Curtis, 2 the jurisdiction was first assumed

Bro. C. C. 620. 2 Ves. J. 129. to prevent multiplicity of suits.
17 Ves. 552. (.r) See -Cariwright v. Pult-

(ti) 2 Vez. 388. 13 Ves. 279. ney, 1 Atk. 380. 2 Sch. & Lefr.

Perhaps in some of these cases 372. 1 Jac. & W. 493.

DEMURRERS. 121

give possession, and order enjoyment accordingly
until effectual conveyances can be made. If the
defect arise from infancy, the infant must have a
day to show cause against the decree after attaining
twenty-one ; and if no cause should be shown, or
cause shown should not be allowed, the decree may
then be extended to compel mutual conveyances (y).
If a contingent remainder, not capable of being
barred or destroyed, should have been limited to a
person not in being, the conveyance must be delayed
until such person shall come into being, or until the
contingency shall be determined ; in either of which
cases a .supplemental bill will be necessary to carry
the decree into execution. An executory devise may
occasion a similar embarrassment (z).

In the case of dower the widow is often much
embarrassed in proceeding upon a writ of dower at
the common law, to discover the titles of her de-
ceased husband to the estates out of which she
claims her dower, to ascertain their comparative
value, and obtain a fair assignment of a third. How
far the courts of equity will assist a widow in the
assignment of dower has been at different times a
subject of much question ; but the result of various
decisions seems to have settled, that where there is
no ground of equity, as a purchase for valuable con-
sideration (a), to prevent their interference, the courts
will proceed to set out dower ; though if the title to

(_y) See Att. Gen. v. Hamil- v. Slade, 6 Ves. 498.
ion, 1 Madd. R. 214. (a) Williams v. Lambc, 3

(z) See the case of Wills Bro. C. C 264.

122 DEMURRERS.

dower be disputed it must be first established at
law(a).

In all these cases the courts of equity will lend
their aid ; but they have generally considered them-
selves in so doing as proceeding merely on rights
which may be asserted in a court of common law,
and therefore in the two cases of partition, and
assignment of dower, as no costs can be given in
a court of common law upon a writ of partition or
a writ of dower, no costs have been commonly given
in a court of equity upon bills brought for the same
purposes (b) ; and as arrears of dower can be reco-
vered at common law only from demand, the same
rule was adopted in the courts of equity, unless par-
ticular circumstances had occurred to warrant a de-
parture from the course of the common law, founded

(a) Curtis v. Curtis, 2 Bro. a writ of dower, which was also

C. C. 620. Mundyv. Mundy, done in Curtis v. Curtis, 15

2 Ves. jun. 122. The last case May, 1778 ; finally reported in

was upon a demurrer, which 2 Bro. C. C. 620. See also

after much consideration was the case of D'Arcy v. Blake,

over-ruled. Lord Talbot had 2 Sch. & Lefr. 387.

over-ruled a demurrer under .,. _, _ „ .

. ., . . ,, (b) see Lucas v. Cnalcrafi,

similar circumstances in Moor „. , nr. . u

„, , c T 1 j Dick. 594. With respect to

v. Blake, 26 July 1735, reported . T c. J

_ _, „,;, ■ ;c't A costs in cases or partition, see

Ca. Temp. Talb. 126, by the „ , , ~ , , ,/ T

. ,, -i 7-w 7 * i Calmaay v. Laimady, 2 Ves. J.

name or Moorland Black. And co .J . * T_

...... , . 508, Agar v.rairfax, 17 Ves.

a like decision was made in °,r . ^ ,

, . ,* M • nu 533> 1 Ves. & Bea. 554 ; and

Messott v. Messott, in Cha. . _ , ,

°P tT • n 7 m cases of dower, see Lucas v.

15 Oct. 1743. But in Read v. „ . . _ „ „ ,

J: , Z i- Calcra ft, 1 Bro. C.C. 134, and

Read, 15 Dec. 1744, the court J T'

• 11 i_u j j j o.L.i Ves. & Bea. 20, note,

retamed the bill, and ordered Tr _ „_ ' ,

, . * , , .v 2 Vez. 128, W organ v. Ryder,

the deeds to be produced, with ^ v^ ^ R^ n°

liberty to the plaintiff to bring

1 Ves. & Bea. 20.

DEMURRERS. 123

on the terms of a statute (c). The courts of equity
having gone the length of assuming jurisdiction in
a variety of complicated cases of account, of parti-
tion, and of assignment of dower, seem by degrees
to have been considered as having on these subjects
a concurrent jurisdiction^/) with the courts of com-
mon law in cases where no difficulty would have
attended the proceeding in those courts.

But except in these instances, and in some cases
noticed in a subsequent page, the courts of equity
will not assume jurisdiction where the powers of the
ordinary courts are sufficient for the purposes of
justice ; and therefore, in general, where a plaintiff
can have as effectual and complete remedy in a
court of law as in a court of equity, and that remedy
is clear and certain (e), a demurrer, which is in
truth a demurrer to the jurisdiction of the court, will
hold(/).

If an accident is made a ground to give jurisdic-
tion to the court in a matter otherwise clearly cog-
nizable in a court of common law, as the loss or
want of an instrument on which the plaintiff's title is

(d) 13 Ves. 279. 1 Sch. &
Lefr. 309. 1 Ves. & Bea. 555

(c) Parry v. Owen, 3 Atk
740. Ghettoffs. Lond. Assur
Comp. 4 Bro. P. C. 436
Toml. Ed. 1 Eq. Ca. Ab. 131
Bensley v. Burdon, 2 Sim. &
Stu. 519.

(/) As courts of equity dis-
claim all right to decide upon
the validity of wills, whether of
real or of personal estate, a
demurrer to a bill whereby such
a determination is sought, will
hold. See Jones v. Jones, 3
Meriv. 161. Jones v. Frost,
3 Madd. 1. S. C 1 Jac. R.
466.

124 DEMURRERS.

founded, the court will not permit a bare suggestion
in a bill to support its jurisdiction ; but requires a
degree of proof of the truth of the circumstance on
which it is sought to transfer the jurisdiction from
a court of common law to a court of equity (£•), by
an affidavit of the plaintiff annexed to and filed with
the bill. Thus if a bill is brought to obtain the
benefit of an instrument upon which an action at law
would lie, alleging that it is lost, and that the plain-
tiff therefore cannot have remedy at law, an affidavit
of the loss must be annexed to the bill, or a de-
murrer will hold(#).

So in the case of a bill for discovery of any in-
strument, suggesting that it is in the custody or
power of the defendant, and praying any relief which
might be had at law if the instrument was in the
hands of the plaintiff, an affidavit must be annexed
to the bill that the instrument is not in his custody
or power, and that he knows not where it is, unless
it is in the hands of the defendant. But if the relief
sought extends merely to the delivery of the instru-
ment, or is otherwise such as can only be given in
a court of equity, such an affidavit is not neces-
sary (i). It is also unnecessary in the case of a bill
for discovery of a cancelled instrument, and to have
another deed executed (k) ; for if the plaintiff had
the cancelled instrument in his hands he could make

(g) Whitchurch V. Golding, (i) Whitworth v. Golding,

i P. Wms. 541. 3 Atk. 132. Mos. 192. Nels. Rep. 78.

(h) See Walmsley v. Child, Anon. 3 Atk. 17.

1 Vez. 342. Hook v. Dorman, (j.) King v# King) MoSi lg3t
l Sim. & Stu. 227.

DEMURRERS. 125

no use of it at law, and indeed the relief prayed is
such as a court of equity only can give.

A suggestion that the evidence of the plaintiff's
demand is not in his power is essential to a bill
under these circumstances ; and if it is defective in
this point the defendant may by demurrer allege
that there is no such charge in the bill (/).

Where a right of action at law was in a trustee,
and the person beneficially entitled filed a bill for
relief, suggesting a refusal by the trustee to suffer
an action to be brought in his name, a demurrer has
been allowed (m) ; and if a mere suggestion to this
effect would support a bill, the jurisdiction in many
cases might improperly be transferred from a court
of law to a court of equity.

By demurring to a bill because the plaintiff may
have remedy at law, the defendant will not be de-
barred of relief in equity upon another bill, if the
plaintiff in the first bill should proceed at law and
recover (;/).

This objection to a bill is not confined to cases
cognizable in courts of common law. If any other
court of ordinary jurisdiction, as an ecclesiastical
court, court of admiralty, or court of prize, is compe-
tent to decide upon the subject, a demurrer will
equally hold ; except that the courts of equity have
in the case of tithes, and in the disposition of the
effects of persons dying testate or intestate, assumed

(/) 3 P. Wins. 395. Toml. Ed. And see 1 Atk. 547.

{m) Ghettqff'v. Lond. Assur. (n) Humphreys^ .Humphreys,

Comp. a Brown, P. C. 436. 3 P. Wms. 395.

126 DKMURRERS.

a concurrent jurisdiction with the ecclesiastical
courts, as far as the jurisdiction of those courts ex-
tends ; and indeed the courts of equity in many of
these cases can give more complete remedy than can
be afforded in the ecclesiastical courts, and in some
cases the only effectual remedy.

Courts of equity will also lend their aid to enforce
the judgments of courts of ordinary jurisdiction ; and
therefore a bill may be brought tq obtain the execu-
tion or the benefit of an elegit (o), or a fieri facias (p),
when defeated by a prior title, either fraudulent, or
not extending to the whole interest of the debtor in
the property upon which the judgment is proposed
to be executed. In some cases, where courts of
equity formerly lent their aid, the Legislature has by
express statute provided for the relief of creditors in
the courts of common law ; and consequently ren-
dered the exertion of this jurisdiction in such cases
unnecessary. In any case to procure relief in equity
the creditor must show by his bill that he has pro-
ceeded at law to the extent necessary to give him a
complete title. Thus in the cases alluded to of an
elegit and fieri facias he must show that he has sued
out the writs the execution of which is avoided, or
the defendant may demur (q) ; but it is not neces-

(o) Lewkner v. Freeman, Pr. 399. Batch v. Waslall, 1 P.

in Ch. 105. Higgins v. York Wms. 445.

Build. Comp. 2 Atk. 107. (q)Angell v. Draper, iVem.

Stileman v. Ashdotvn, 2 Atk. ^ ^ .^ y> ^^ fl A^

6o8' .,. T . v 200.
(p) Smithier v. Lewis, 1 Vern.

DEMURRERS. 127

sary for the plaintiff to procure returns to those
writs (r).

The judgments of the ecclesiastical courts giving
civil rights will receive the same aid from a court of
equity as those of the courts of common law ; and
therefore where a person against whom there was a
sentence in an ecclesiastical court at the suit of his
wife for alimony, intended to avoid the execution of
the sentence by leaving the kingdom, the court of
chancery entertained a bill for a writ of ne exeat
regno, to restrain him from leaving the kingdom
until he had given security to pay the maintenance
decreed (s).

2. Sometimes a party, by fraud, or accident, or
otherwise, has an advantage in proceeding in a court
of ordinary jurisdiction which must necessarily make
that court an instrument of injustice ; and it is there-
fore against conscience that he should use the ad-
vantage. In such cases, to prevent a manifest wrong,
courts of equity have interposed, by restraining the
party whose conscience is thus bound from using
the advantage he has improperly gained ; and upon
these principles bills to restrain proceedings in courts
of ordinary jurisdiction are still frequent, though the

(r) Manningham v. Ld. Bo- (s) Read v. Read, l Ca. in

linbroke, Elegit, Easter 1777, Cha. 115. Sir Jerom. Smithson's

in Chan. Kennard v. Moore, case, 2 Ventr. 345. Anon. 2

in Ch. June 23,1756. 2 Eq. Ca. Atk. 210. Ambl. 76. Shajloe

Ab. 251. King v. Marissal, v. Shaftoe, 7 Ves. 171. DaivsoJi

3 Atk. 192. S. C. ib. 200. v. Datvson, ib. 173. Oldham v.

But see Batch v. Wastall, 1 P. Oldham, ib. 410. Haffey v.

Wms. 445. Haffey, 14 Ves. 261.

128 DEMURRERS.

courts of common law have been enabled, by the
assistance of the Legislature, as well as by a more
liberal exertion of their inherent powers, to render
applications of this nature to a court of equity un-
necessary in many cases where formerly no other
remedy was provided. Thus if a deed is fraudulently
obtained without consideration, or for an inadequate
consideration, or if by fraud, accident or mistake, a
deed is framed contrary to the intention of the parties
in their contract on the subject, the forms of pro-
ceeding; in the courts of common law will not admit
©

of such an investigation of the matter in those courts
as will enable them to do justice. The parties claim-

ino: under the deed have therefore an advantage in

proceeding in a court of common law which it is
against conscience that they should use ; and a court
of equity will on this ground interfere to restrain
proceedings at law until the matter has been properly
investigated, and if it finally appears that the deed
has been improperly obtained, or that it is contrary
to the intention of the parties in their contract, will
in the first case compel the delivery and cancellation
of the deed, or order it to be deposited with an
officer of the court ; and will compel a reconveyance
of property if any has been so conveyed that a re-
conveyance may be necessary (t) ; and in the second

(t) See on this subject, v. Proud, 13 Ves. 136. Ware

Bishop of Winchester v. Four- v. Horwood, 14 Ves. 28. Hu-

nier, 2 Vez. 445. Bates v. guenin v. Baseley, 14 Ves. 273.

Graves, 2 Ves. J. 287. Pringle Willan v. Willan, 16 Ves. 72.

v. Hodgson, 3Yes.6ij. Wright Murray v. Palmer, 2 Sell. &

DEMURRERS. 129

case will either rectify the deed according to the
intention of the parties, or will restrain the use of it
in the points in which it has been framed contrary
to, or in which it has gone beyond, their intention in
their original contract (it). The instances of the exer-
cise of the jurisdiction of courts of equity in these
cases, and especially in the case of a deed fraudu-
lently obtained, are numerous (#). On the ground
of mistake the courts of equity have also frequently
interfered in a variety of instances, and particularly

Lefr. 474. Walker v. Symonds, cited, and Mason V. Gardiner,

3 Svvanst. 1. Gordon v. Got- 4 Bro. C. C. 436. But if the

don, 3 Svvanst. 400. Wood v. instrument ought not to be

Abrey, 3 Madd. 417. Tived- used, it is against conscience for

dell v. Tweddell, 1 Turn. R. 1. the party holding it to retain it,

(«) See 2 Atk. 33. 203. as he can only retain it for some

Henkle v. Royal Exchange sinister purpose ; and in the

Assur. Comp. 1 Vez. 317. case of a negotiable instrument

Rogers v. Earl, Dick. 294. it may be used for a fraudulent

Marquis of Toivnshend v. Stan- purpose, to the injury of a

groom, 6 Ves. 328. Clowes v. third person. See Bromley v.

Higginson, 1 Ves. & Bea. 524. Holland, Coop. R. 9. 11 Ves.

Beaumont v. Bramley, 1 Turn. 535. 17 Ves. 112. 1 Ves. &

R. 41. Ball v. Storie, 1 Sim. Bea. 244. Wynne x.Callandar,

& Stu. 210. 2 Sim. & Stu. 178. 1 Russ. R. 293; and see 2

(x) It has been sometimes Swanst. 157, note, where the
doubted whether the court leading authorities on this sub-
ought to compel the delivery ject are collected. Of a forged
and cancellation of an instru- instrument the court ought to
ment which ought not to be take the custody ; and in such a
enforced, and whether the more case the instrument has been
proper course would not be to generally ordered to be de-
order a perpetual injunction to posited with an officer of the
restrain the use of the instru- court. Bishop of Winchester
ment. See 1 Ves. jun. 284. v. Fournier, 2 Vez. 445, and
Ryan v. Mackmath, 3 Bro. C. cases there cited.
C. 15, and the cases there

1^0 DEMURRERS.

in the cases of defective securities for money (3/),
and of marriage settlements founded on previous
articles, where the settlement has been contrary to
the evident intention of the parties in the articles (z).
The courts of equity will interfere upon the same
grounds to relieve against instruments which destroy,
as well as against instruments which create, rights ;
and therefore will prevent a release which has been
fraudulently or improperly obtained from being made
a defence in an action at law. And where a fine and
non-claim were set up as a bar to an ejectment by an
heir at law, who had filed a bill in equity before the
time had run on the fine, for discovery of title deeds,
and for other purposes, with a view to try his title
at law, the House of Lords upon an appeal res-
trained the setting up the fine («). In many cases
of accident, as lapse of time, the courts of equity
will also relieve against the consequences of the ac-
cident in a court of law. Upon this ground they
proceed in the common case of a mortgage, where
the title of the mortgagee has become absolute at
law upon default of payment of the mortgage-money
at the time stipulated for payment (b).

(y) Sims v. Urry, 2 Ca. in Randall v. Willis, 5 Ves. 262.

Chan. 225. S. C. Rep. temp. Taggart v. Taggdrt, 1 Sch. &

Finch, 413, & 2 Freem. 16. Lefr. 84. Blackburn v. Stables,

Burgh v. Francis, 1 Eq. Ca. 2 Ves. & Bea. 367. 1 Turn. R.

Ab. 320. Taylor v. Wheeler, 2 52.

Vern. 564. Jennings v. Monro, (a) PincJce v. Thornycroft,

2 Vern. Goc). Bothomly v. Lord l Bro. C. C. 28g.

Fairfax, 1 P. Wms. 334. (b) See 7 Ves. 273. 2 Sch.

(2) On this subject, see & Lefr. 685.

DEMURRERS. 1J1

As the courts of equity will prevent the unfair use
of an advantage in proceeding in a court of ordinary
jurisdiction gained by fraud or accident, they will
also, if the consequences of the advantage have been
actually obtained, restore the injured party to his
rights. Upon this ground there are many instances
of bills to prevent the effect of a judgment at law,
and to obtain relief in equity where it was impossible
by any means to have the matter properly investi-
gated in a court of law ; or where the matter might
be so investigated, to bring it again into a course of
trial (c).

Bills of the latter description, or (as they are
usually called,) bills for a new trial, have not been
of late years much countenanced. In general, it has
been considered that the ground for a bill to obtain a
new trial after judgment in an action at law must be
such as would be ground for a bill of review of a
decree in a court of equity upon discovery of new
matter (d) ; and therefore where judgment has been
obtained against one underwriter on a policy of in-
surance, a point of law being adjudged on a case
reserved in favour of the plaintiff at law ; and after-
wards in other actions on the same policy, against
other underwriters, judgment was given for the de-
fendants on the same point, the first judgment being
deemed to have been clearly erroneous ; a demurrer

Robinson v. Bell, 2 Vern. 146
Thomas v. Gyles, 2 Vern. 232
Tilly v. Wharton, 2 Vern. 378
S. C. ib. 419. 1 Eq. Ca. Ab

424. Hankey v. Vernon, 1
Cox's R. 12. 2 Ves. J. 135.
(d) 1 Ca. in Cha. 43.

K 2

132 DEMURRERS.

was allowed to a bill brought by the defendant in
the first action for a new trial. No new matter of
fact had been discovered ; and if this bill had been
sustained, a similar bill might have been filed, when-
ever a court of law had pronounced an erroneous
judgment which could not be reversed by a writ
of error (e). So if the defendant in an action at
law submits to go to trial without filing a bill in
equity for a discovery of evidence, and after verdict
against him attempts to obtain that discovery as a
ground for a new trial, the court of equity will not
countenance such a proceeding when there is no
fraud in the conduct of the plaintiff at law (/).

Cases of oppression, where a man has taken ad-
vantage of the situation of another to obtain from
him an unreasonable contract, have been the sub-
jects of relief on the same ground ( g) ; and in some
cases the courts of equity have rescinded improper
contracts on the grounds of general policy, and to
prevent a public inconvenience, as in the case of
securities given for marriage-brokage (h), or for the
obtaining of public offices, or employments (i).

(e) Gibson v. Bell on demur- v. Clay worth, 18 Ves. 12.

rer, 30 July 1800, in Chan. 6 Matld. 109.

{J) Richardsv.Symes, 2 Atk. (h) Smith v. Bruning, 2

319. WUUamsv.Lee, 3 Atk.223. Vern. 392. 3 P. Wms. 394.

Manning v. Mestaer, in Chan. Williamson v. Gihon, 2 Sch.

9 Dec. 1786, on cause shown & Lefr. 357.
against dissolving injunction. (i) Law v. Law, 3 P. Wms.

See Fieldv. Beaumont, 2 Swanst. 391. Whittingham v. Bour-

204. g°yne) 3 Anstr. 900. Hanning-

(g) Bosanquett v. Dashwood, ton v. Du Chatel, 1 Bro. C. C.

Ca. t. .Talb. 38. Osmond v. 124. S. C. 2 Swanst. 159,

Fitzroy, 3 P. Wms. 131. Cooke note.

DEMURRERS. 1 53

If a bill for any of these purposes does not show
a sufficient ground for a court of equity to interfere,
the defendant may demur for want of matter of
equity in the plaintiff's case to support the jurisdic-*
tion of the court. And the courts of equity will thus
restrain and relieve against the effect of proceedings
in other courts in such cases only as concern mere
civil rights ; and therefore if a bill is brought for
relief against a proceeding at law upon a criminal
prosecution, as an indictment, or information, or a
mandatory writ, as a writ of prohibition, a manda-
mus, or any writ which is mandatory and not reme-
dial, the defendant may demur (k).

3. The principles of law which guide the decisions
of the courts of ordinary jurisdiction, and especially
the courts of common law, were principally formed in
times when the necessities of men were few, and their
ingenuity was little exercised to supply their wants.
Hence it has happened that, according to the prin-
ciples of natural and universal justice, there are many
rights for injuries to which the law, as administered
by those courts, has provided no remedy. This is
particularly the case in matters of trust and confi-
dence, of which the ordinary courts, taking in a
variety of instances no cognizance, and the positive
law being silent on the subject, the courts of equity,
considering the conscience of the party intrusted as
bound to perform the trust, have interfered to compel
the performance. And it has long been settled, that
where trustees are desirous of acting under the direc-

(k) Lord Montague v. Dudman, 2 Ves. 396. 1 Eq. Ca. Ab.
J 31 ; and see 18 Ves. 220.

K 3

134 DEMURRERS.

tion and protection of a court of equity, they may
file a bill for those purposes against the persons in-
terested in the trust-property (/). And in many
other cases where the positive law has been silent,
and there are rights in conscience for injuries to
which the ordinary courts afford no remedy, the
courts of equity have also interfered ; enforcing the
principles of universal justice upon the ground of
obligation on the conscience of the party against
whom they are enforced (in). To support a bill in
any of these cases it is necessary for the plaintiff to
show that the subject of the suit is such upon which
a court of equity will assume jurisdiction ; and if
he fails to do so the defendant may demur.

4. Courts of equity in many cases will act as an-
cillary to the administration of justice in other courts,
by removing impediments to the fair decision of a
question. Thus, if an ejectment is brought to try
a right to land in a court of common law, a court
of equity will restrain the party in possession from
setting up any title which may prevent the fair
trial of the right ; as a term for years, or other
interest in a trustee, lessee, or mortgagee (n). But
this will not be done in every case ; for as the court
proceeds upon the principle that the party in pos-

(l) Leech v. Leech, 1 Ca. in of assets which he had aliened.
Cha. 249. And see Fielden v. (n) 6 Ves. 8g. 1 Sch. &

Fielden, 1 Sim. & Stu. 255. Lefr. 429; and see 13 Ves.

(m) It is said, 1 P. W. 777, 298. Armitage v. Wadstvorth,

that before the statute of the 1 Madd. R. 189. Barney v.

3 & 4 W. and M. c. 14, courts Luckett, 1 Sim. & Stu. 419.

of equity made an heir respon- Northey v. Pearce, ib. 420.
sible to creditors for the value

DEMURRERS. I35

session ought not in conscience to use an accidental
advantage to protect his possession against a real
right in his adversary, if there is any circumstance
which meets the reasoning upon this principle the
court will not interfere. Therefore, if the possessor
is a purchaser for a valuable consideration without
notice of the title of the claimant, this is a title in
conscience equal to that of the claimant, and the
court will not restrain the possessor from using any
advantage he may be able to gain to defend his pos-
session (0). It, can hardly appear upon the face of
a bill that the defendant is in such a situation, and
therefore the benefit of this defence must generally
be taken by plea : but if the case should be so
stated, the defendant might demur ; because the
case stated would appear to be such in which a
court of equity ought not to assume jurisdiction. If
the matter suggested in a bill as an impediment to
the determination of a question in a court of ordinary
jurisdiction in fact is not so, the defendant may also
demur ; for then there is no pretence for the inter-
ference of a court of equity.

5. Pending a litigation the property in dispute is
often in danger of being lost or injured, and in such
cases a court of equity will interpose to preserve it,
if the powers of the court in which the litigation is
depending are insufficient for the purpose. Thus
during a suit in an ecclesiastical court for admi-
nistration of the effects of a person dead, a court of
equity will entertain a suit for the mere preservation

(0) See 2 Ves. jun. 457, 458. Maundrell v. Maundrell, 7 Ves.
567. S. C. 10 Yes. 24.fi.

K 4

136 DEMUKRERS.

of the property of the deceased till the litigation is
determined, although the ecclesiastical court, by
granting an administration pendente lite, will provide
for the collection of the effects (p). And, pending
an ejectment in a court of common law, a court of
equity will restrain the tenant in possession from
committing waste, by felling timber, ploughing ancient
meadow, or otherwise (//). Against this inconvenience
a remedy at the common law was in many cases pro-
vided during the pendency of a real action by the
writ of estrepement (r) ; and when the proceeding
by ejectment became the usual mode of trying a title
to land, as the writ of estrepement did not apply to
the case, the courts of equity, proceeding on the
same principles, supplied the defect.

But, in general, if the court in which the suit is
depending can itself provide for the safety of the
property, a demurrer will hold. The interference
to preserve the effects of a person dead pending a
litigation in the ecclesiastical court, touching the
administration of those effects, scarcely forms an ex-
ception to this rule ; for the protection afforded by an
administration pendente lite has been often a very
insufficient protection ; and in the administration of
personal effects the courts of equity have assumed a
concurrent jurisdiction with the ecclesiastical courts,

(p) Kingv. King, 6 Ves. 172. v. Frost, 3 Madd. 1. S. C. 1

Richards v.Chave, 12 Ves. 4G2. Jac. R. 46G. G Madd, 49.

Edmunds v. Bird, 1 Ves. & Bea. 1 05.

542. Atkinson v. Hehshauo, (q) Pidteney v. Shelton, 5

2 Ves. & B. 85. Ball v. Oliver, Ves. 260, note. Lathropp v.

2 Ves. & B. 96. Rutherford Marsh, 5 Ves. 259; and see

v. Douglas, rep. 1 Sim. & Stu- Onslow v. , 16 Ves. 173.

111, n. 3 Meriv. 174. Jones (r) F. N. B. Go.

.DEMURRERS.' 137

and for many purposes have a much more effectual
jurisdiction, particularly for payment of creditors, and
concluding all parties by the judgment of the court
in the distribution of the effects, and preserving the
surplus for the benefit of those who may finally ap-
pear to be entitled to it.

6. Doubts have been suggested how far a court of
equity ought to interfere to prevent injury arising to
property pending a suit founded on trespass. This
doubt, it should seem, ought to be confined to cases
of mere trespass, and where the injury done is not
probably irreparable (s). But when a doubtful right
has been asserted in a manner productive of irreparable
.ajury the courts have interfered. Therefore, where
the tenants of a manor, claiming a right of estovers,
nt down a great quantity of growing timber of great
value, their title being doubtful, the court of chancery
entertained a bill at the suit of the lord of the manor
'strain this assertion of it (t) ; and indeed the
ommission of waste of every kind, as the cutting of
\ pulling down of houses, ploughing of ancient
pasture, working of mines, and the like, is a very
frequent ground for the exercise of the jurisdiction of
courts of equity, by restraining the waste till the
rights of the parties are determined. The courts of
equity have also extended their relief to restrain the
owner of a mine from working minerals in the ad-
joing land of another, though a mere trespass under
the cover of a right (w).

\s) Hanson v. Gardiner, 7 (t) Stonor v. Strange, Mich.

Ves. 305. 10 Ves. 291. 17 1767, and Stonorv.IVhiting,}l\].

Ves. 110. 281. 1 Swanst. 208. 1768. in Chan. 1 Sch.&Lcfr. 8.

210. Sec above, 115, note («)• (u) Mitchell v. Dors, 6 Ves.

I38 DEMURRERS.

The courts of equity seem to have proceeded upon
a similar principle in the very common cases of per-
sons claiming- copy-right of printed books, and of
patentees of alleged inventions, in restraining the
publication of the book at the suit of the owner of
the copy, and the use of the supposed invention at
the suit of the patentees. But in both these cases
the bill usually seeks an account ; in one, of the books
printed, and in the other, of the profit arisen from
the use of the invention : and in all the cases alluded
to it is frequently, if not constantly, made a part of
the prayer of the bill that the right, if disputed, and
capable of trial in a court of common law, may be
there tried and determined under the direction of the
court of equity ; the final object of the bill being a
perpetual injunction to restrain the infringement of
the right claimed by the plaintiff (V).

In all cases of waste committed on lands or tene-
ments the courts of equity originally proceeded by
analogy to the provisions of the old common law, by
which tenant by the courtesy and in dower answered
only for the value of the waste done, and a custos was
assigned to prevent further waste. The statute of
Marlebridge, 52 H. III. c. 23, added a fine for the
offence to full damage for the injury done ; and after-

147. 7 Ves. 308. Thomas v. & Bea. 19. Gee v. Pritchard,

Oakley, 18 Ves. 184. 2 Swanst. 402. Rundellv.Mur-

(x) On the subject of copy- ray, 1 Jac. R. 311. Lawrence v.

right, see Hogg v. Kirby, 8 Ves. Smith, 1 Jac. R. 47 1 . Barfieldv.

215. Longman v. Winchester, Nicholson, 2 Sim & Stu. l ; on

16 Ves. 269. Wilkins v. Aikin, that of patents, see Harmer

17 Ves. 422. Southey v. SAer' v. Plane, 14 Ves. 130^ Canham
■wood, 2 Meriv. 435. Lord and v. Jones, 2 Ves. & Bea. 248.
Lady Percival v. Phipps, 2 Ves. Hill v. Thompson, 3 Meriv. 622.

DEMURRERS. I39

wards the statute of Gloucester, 6 Edw. I. c. 5, gave
treble damages, and the forfeiture of the place wasted
by tenant by the courtesy, for life, or for years. The
forfeiture by waste, and all penalties, ought to be
waved in a bill for restraining waste ( j/), the courts of
equity declining to compel a discovery which may
subject a defendant to any penalty or forfeiture, and
confining the relief given to compensation for the
damage done, and restraining future injury. So at
law the person entitled to the benefit of forfeiture for
waste might wave the action for waste, and maintain
an action of trover for trees felled by a tenant im-
peachable for waste (z).

With respect to copyholds, the courts appear, in
some instances, to have refused to restrain waste,
nd left the lord to his legal remedy by forfeiture (a).
The rights of the lord and tenant of copyholds de-
pending on the custom of each manor, it has per-
haps been thought that the lord is not entitled to
that protection which is given to rights ascertained
by the common law of the land, and that he has
generally the remedy in his own hands. Upon a
lease of land in Ireland for lives, renewable for ever,
the courts of equity there have declined restraining
waste not specially provided for by the terms of the
lease (U).

(y) 1 Atk. 451. Lord israfoW, when Chancellor,

(z) Berry v. Heard, Cro. now reported in 3 Meriv. 673,

Car. 242. this decision was overruled.
(a) Dench v. Bampton, 4 (b) Calvert v. Gason, 2 Seh.

Ves. 700. In a cause, however, & Lefr. 561.

of Richards v. Noble, before

14° DEMURRERS.

But in the case of waste the courts of equity have
in many instances given remedies where the common
law has provided none. Thus in the case of co-
parceners (c) and tenants in common (d), the Court
has interfered to prevent the destruction of the pro-
perty by one coparcener, or one tenant in common,
to the injury of the rest(e). So where tenant for
life not impeachable for waste has proceeded to
destruction of a mansion-house (/), or to cut down
ornamental trees, or trees necessary for the protection
of a mansion, or young- saplins (g). In these cases
it should seem that the courts have proceeded on the
ground that the acts done were an unconscientious
use of the powers given to the particular tenant,
and in some instances, perhaps, partaking of the
nature of mere malicious mischief (//). It has been
much doubted whether in some instances this relief
has not been carried to an extent which may be
found productive of great inconvenience, and per-
haps injustice, if the decisions should be implicitly
followed (i).

Where persons were bound by covenant to keep
the banks of a river in repair, and by their acts in
contravention of the covenant great injury was likely

(d) Hde v. Thomas, 7 Ves. and cases there cited; and see
589. Ttvortv. Twort, 16 Ves. above, p. 115, note.

128. (h) 2 Freem. 278. Bishop

(y) Vane v. Lord Barnard, 527.

2 Vern. 738. (j) See 16 Ves. 185.
(g) Abraham v. Buhb, 1

DEMURRERS. 141

to arise, a court of equity has interfered by injunc-
.tion (k).

In all the cases in which the interference of a
court of equity is thus sought, if the bill should not
clearly show the title of the plaintiff", or his right to
.demand the assistance of the court in his favour, or
that the case is one to which the court will apply
the remedy sought, the defendant may demur.

7. It has been mentioned (/) that where two or
more persons claim the same thing by different titles,
and another person is in danger of injury from igno-
rance of the real title to the subject in dispute,
courts of equity will assume a jurisdiction to protect
him ; and that the bill exhibited for this purpose is
'ermed a bill of interpleader, the object of it being
1 compel the claimants to interplead, so that the
court may adjudge to whom the property belongs, and
the plaintiff may be indemnified. The principles
upon which the courts of equity proceed in these
cases are similar to those by which the courts of law
are guided in the case of bailment ; the courts of
law compelling interpleader between persons claiming
property, for the indemnity of a third person in
whose hands the property is, in certain cases only,
as where the property has been bailed to the third
person by both claimants, or by those under whom
both make title ; or where the property came to the
hands of the third person by accident ; and the courts
of equity extending the remedy to all cases to which

(tc) Lord Kilmoreij v. Thackeray, cited a Brown, C. C. 65.
(I) See above p. 48.

142 DEMURRERS.

in conscience it ought to extend, whether any suit
has been commenced by any claimant, or only a
claim made(m).

This remedy has been applied to the case of tenants
of lands charged with annuities, and liable to distress
by their landlord, and the claimants of annuities (n),
and to other cases of disputed titles (o), in which the
tenants have been permitted to pay their rents into
court (p).

If a bill of interpleader does not show that each of
the defendants whom it seeks to compel to interplead
claims a right, both the defendants may demur ; one,
because the bill shows no claim of right in him, the
other, because the bill showing no claim of right in
the co-defendant shows no cause of interpleader (if).
Or if the plaintiff shows no right to compel the de-
fendants to interplead, whatever rights they may

(m) It may here be noticed, Case, cited 9 Ves. 107. Angell

that if at the hearing the ques- v. Hadden, 15 Ves. 244, S. C.

tion between the defendants be lG Ves. 202.

ripe for decision, this court will (0) Wood v. Kay and wife

make a decree ; and that if such and others, 19 Dec. 1786.

be not the case, it will direct 2 Ves. jun. 312. 16 Ves. 203,

an action, an issue, or a refer- 204.

ence to a Master, in order to (p) It is however observable,

bring the matter to a determi- that in such cases the Court

nation. See Duke of Bolton interferes on the ground of

v. Williams, 2 Ves. jun. 138. privity having been created by

S. C. 4 Bro. C. C. 297. Angell the act of the landlord between

v. Hadden, 16 Ves. 202. his tenant and the other claim-

(n) Surry and others, tenants ant. See Cowtan v. Williams,

of Lord Waltham, against Vaux 9 Ves. 107. Clarke v. Byne,

and others, 28 Feb. 1785. 13 Ves. 383. E.I. Comp.v.

Aldridge v. Thompson, 2 Bro. Edwards, 18 Ves. 37G.

C. C. 150. Lord Thomond's (q) 1 Vez. 249.

DEMURRERS. I43

claim, each defendant may demur (r). A bill of this
nature is also liable to a peculiar cause of demurrer;
for as the court will not permit such a bill to be
brought in collusion with either claimant, the plaintiff,
as has been already mentioned, is required to annex
to his bill an affidavit that it is not exhibited in col-
lusion with any of the parties, to induce the court to
entertain jurisdiction of the suit; and the want of that
affidavit is therefore a ground of demurrer (s). A
bill of this nature generally prays an injunction to
restrain the proceedings of the claimants in some other
court ; and as this may be used to delay the pay-
ment of money by the plaintiff, if any is due from
him, he ought by his bill to offer to pay the money
due into court (t). If he does not do so it is perhaps
in strictness a ground of demurrer.

8. In many cases the courts of ordinary jurisdic-
tion admit, at least for a certain time, of repeated
attempts to litigate the same question. To put an

(r) As, for example, if a v. Crowley, 1 Buck, B. C. 273,

tenant were to file such a bill and Lowndes v. Cornjbrd, 18

against his landlord, and a per- Ves. 299. S. C. 1 Rose, B. C.

son with whom he himself 180.

has no privity, but who claims (s) Metcalf v. Harvey, 1

by a title adverse to that of the Vez. 248 ; and see 2 Ves. &

landlord. Dungey v. Angove, Bea. 410.

2 Ves. jun. 304. 2 Anstr. 532; (t) Lord Thanct v. Patterson,

Johnson v. Atkinson, 3 Anstr. 3 Barnard, 247. 2 Ves. jun.

798; or, an agent against his 108, 109. It seems that there

principal and a third person, might be a case in which a de-

Nicholson v. Knowles, 5 Madd. murrer would be prevented by

47;or,adebtoragainsthiscredi- the money being brought into

tor become a bankrupt, and the court. See 19 Ves. 323.
assignees of the latter, Harlow

144 DEMURRERS.

end to the oppression occasioned by the abuse of this
privilege the courts of equity have assumed a juris-
diction^). Thus, actions of ejectment having become
the usual mode of trying titles at the common law,
and judgments in those actions not being in any
degree conclusive, the courts of equity have inter-
fered ; and, after repeated trials, and satisfactory
determinations of questions, have granted perpetual
injunctions to restrain further litigation (.r), and thus
have in some degree put that restraint upon litigation
which is the policy of the common law in the case of
real actions (3/).

Upon the same principle (z) the courts of equity
seem to have interfered in cases as well of private
as of public nuisance ; in the first, at the suit of the
party injured (a), in the second, at the suit of the
attorney-general (b) ; restraining the exercise of the
nuisance where the proceedings at law are inef-
fectual for the purpose, and preventing the creation
of a nuisance where irreparable injury to indivi-
duals, or great public injury, would ensue (c). In
the case of a private nuisance it seems necessary
that a judgment at law, ascertaining the rights of

(u) 2 Sch. & Lefr. 211. (z) See Dick. 164. 16 Ves.

(x) Earl of Bath, v. Shenoin, 342. 19 Ves. 622.

Prec. in Chan. 261. S. C (a) See Ryder v. Bentham,

4 Brown, P. C. 373, Toml. Ed. 1 Vez. 543. Att. Gen. v.'Nichol,

Leigktonv.Leighton, 1 P.Wms. 16 Ves. 338. S. C. 3 Meriv.

671. S. C. 4Bro. P. C. 378, 687.

Toml. Ed. And see Anon. {b) See Anon. 3 Atk. 750.

Gilb. Eq. R. 183. S. C.2 Eq. S. C. named Baines v. Baker,

Abr. 172. Barefoot v. Fry, Ambl. 158. Att. Gen. v. Cleaver,

Bunb. 158.2 Sch. & Lefr. an. 18 Ves. 211.

(y) Strange, 404. (c) 16 Ves. 342.

DEMURRERS. 14,**;

the parties, should have been previously obtained (7/).
On informations by the attorney-general on behalf
of the Crown the court of exchequer has proceeded
to the abatement of nuisances injurious to the royal
prerogative, such as nuisances in harbours, or even
trespasses on the public rights of the Crown without,
any nuisance (e). If a trespass is made on the soil
of the Crown, whether reserved for the private use
of the Sovereign, or for public purposes, and the
trespass does not produce a public injury, the juris-
diction may be founded on the right of the Crown
to have the land arrented, and the profit accounted
for as part of the royal revenue, in the nature of an
assart; and if the trespass produces, or may in its
consequences produce, public injury, the Crown is
entitled to the most effectual means of preventing
the injury (/).

Courts of equity will also prevent multiplicity of
suits ; and the cases in which it is attempted, and
the means used for that purpose, are various. With
this view, where one general legal right is claimed
against several distinct persons, a bill may be brought
to establish the right (g). Thus where a right of
fishery was claimed by a corporation throughout the
course of a considerable river, and was opposed by

(d) 19 Ves. G22. Chalk v. 162. Alt. Gen. v. Richards,
Wyatt, 3 Meriv. G88. Wyn- Anstr. 603.

Stanley v. Lee, 2 Swanst. (/) 18 Ves. 218.

333. (g) 2 Atk.484. 11 Ves. 444.

(e) Att. Gen. v. Forbes, Ex- . Corporation of Carlisle v. Wil-
cheq. Trin. 1795. Hale tie son, 13 Ves. 27G. Duke of
Jure Maris, p. 1, c. 4. p. 13. Norfolk v. Myers, 4 Madd. 83.
Churchman v. Tunsial, Hardr. 1 Jac. & W. 3%.

I46 DEMURRERS.

the lords of manors and owners of land adjoining',
a bill was entertained to establish the right against the
several opponents, and a demurrer was over-ruled (h).
As the object of such bills is to prevent multipli-
city of suits by determining the rights of the parties
upon issues directed by the court, if necessary for
its information, instead of suffering the parties to be
harassed by a number of separate suits, in which
each suit would only determine the particular right
in question between the plaintiff and defendant in
it, such a bill can scarcely be sustained where a
right is disputed between two persons only, until
the right has been tried and decided upon at law (j).
Indeed in most cases it is held that the plaintiff
ought to establish his right by a determination of
a court of law in his favour before he files his bill
in equity (A) ; and if he has not so done, and the
right he claims has not the sanction of long posses-
sion (/), and he has any means of trying the matter
at law (pi), a demurrer will hold. If he has not been
actually interrupted or dispossessed, so that he has
had no opportunity of trying his right, he may bring1
a bill to establish it though he has not previously
recovered in affirmance of it at law, and in such
a case a demurrer has been over-ruled (n),

(h) Mayor of York v. Pitting- (I) Bitsh v. Western, Prec. in

ton, l Atk. 282. Chan. 530.

(i) Lord Teynham v. Herbert, (m) 'Whitchurch v. Hide,

2 Atk. 483. 2 Atk. 391. Wells v. Smeaton,

(k) 1 Atk. 284. Anon. vVez. in Chan. 27 May 1784.

414. 2 Sch. & Lefr. 208. 11 (n) 1 Atk. 284. And see

Ves. 444. 1 Jac. & W. 369. Duke of Dorset v. Girdler, Prec.

DEMURRERS. 147

It is not necessary to establish a right at law be-
fore filing a bill where the right appears on record,
as under letters patent for a new invention, in which
case a demurrer to a bill for an injunction to restrain
an infringement of the patent right has been over-
ruled (0). So in the cases of bills brought by authors
or their assignees to restrain the sale of books where
the right which is the foundation of the bill is grounded
on an act of parliament (p). And where a right ap-
peared on record by a former decree of the court it
was determined that it was not necessary to establish
it at law before filing a bill (q). Where a right prima
facie and of common right is vested in the Crown,
it will receive the same protection (r), and this prin-
ciple may be applied to some of the cases mentioned
in a preceding page.

A court of equity will thus protect private rights,
or rights of those who may be comprehended under
one common capacity, as the inhabitants of a parish,
or the tenants of a manor, which has been frequently
done in bills to establish parochial customs of tith-
ing disputed by the tithe-owner, and more rarely in
bills to establish the customs of manors disputed by
the lord (s) ; but will not establish or decree a per-

in Chan. 531. But see Welby (q) Ibid,

v. Duke of Rutland, 2 Bro. (r) SeeGVes. 713. Grierson

P. C. 39. Toml. Ed. 2 Sch. v.Eyre,(jVes. 341. l3Ves.5o8.

& Lefr. 209. (s) Netv El me Hospital v.

(0) Horton and Maltby, in Andover, 1 Vern. 266. Baker

Chan. 23 July 1783. 3 Meriv. v. Rogers, Sel. Ca. in Cha. 74.

(J24. Covoper v. Clerk, 3 P. Wins.

(p) 1 Vez. 476. 155. 2 Eq. Ca. Ab. 172.

L 2

I48 DEMURRERS.

petual injunction for the enjoyment of a right hi con-
tradiction to a public right, as a right to a highway, or
a common navigable river, for that would be to enjoin
all the people of England (0, although it will restrain
a public nuisance at the suit of the attorney-general.
A court of equity will also prevent injury in some
cases by interposing before any actual injury has
been suffered ; by a bill which has been sometimes
called a bill quia timet, in analogy to proceedings at
the common law, where in some cases a writ may be
maintained before any molestation, distress, or im-
pleading (u). Thus a surety may file a bill to compel
the debtor on a bond in which he has joined to pay
the debt when clue, whether the surety has been
actually sued for it or not ; and upon a covenant to
save harmless, a bill may be filed to relieve the cove-
nantee under similar circumstances (#).

9. To administer to the ends of justice without
pronouncing any judgment which may affect any
rights, the courts of equity in many cases compel
a discovery which may enable other courts to decide
on the subject. The cases in which this jurisdiction
is exercised will be considered in treating of de-
murrers to discovery only.

10. When the testimony of witnesses is in danger
of beino- lost before the matter to which it relates can

(t) Lord Hardwicke, in Lord 1 Vera. 189, 190, and on the

Fauconberg and Pierse, 1 Ith of general subject, see also 1 Vez.

May 1753. 2 Eq. Ca. Ab. 171. 283. Flight v. Cook, 2 Vez.

Ambl. 210. 619. Green v. Pigot, 1 Bro*

(w) Co. Litt. 100. a. C.C. 103. Brown v. Dudbridge,

(x) Lord Ranelaugh v. Hayes, 2 Bro. C C. 321.

DEMUR RE US. 1 49

be made the subject of judicial investigation, a court of
equity will lend its aid to preserve and perpetuate the
testimony (j/) ; and as the courts of common law cannot
generally examine witnesses except viva voce upon
the trial of an action, the courts of equity will supply
this defect by taking and preserving the testimony of .
witnesses going abroad, or resident out of the king-
dom (z), which may be afterwards used in a court of
common law. As the object of this jurisdiction is
to assist other courts, and by preserving evidence to
prevent future litigation, there are few cases in which
the court will decline to exercise it. A demurrer to
a bill seeking the benefit of it will therefore seldom
lie (a) ; and in a case where the court was of opinion
that the defendant might demur both to the discovery
sought and the relief prayed by a bill, it was held
that to so much of the bill as sought to perpetuate
the testimony of witnesses the defendant could not
demur (b). But if the case made by the bill appears
to be such on which the jurisdiction of the court
does not arise, as if the matter to which the required

(y) See above, 52, note (y). Wms. 117. Tirrell v. Co,

(z) As to the examination of a R0l. Ab. 383. Mendez v.

witnesses resident abroad, see Barnard, 16 May, 1735, on

Cock \. Donovan, 3 Ves.&Bea. demurrer. Lord Dursley v.

76. Botvdenv. Hodge, 2 Swanst. Fitzhardinge, 6 Ves. jun. 251

258. Cheminant v. Dela Cour, to 2G6. See however, The Earl

1 Madd. R. 208. Devisv. Turn- of Belfast v. Chichester, 2 Jac.

bull, 6 Madd. 232. Baskett & W. 439.
v. Toosey, 6 Madd. 261. An- (J) Earl of Suffolk v. Green,

gell v. Angell, 1 Sim. & Stu.83. 1 Atk. 450. See Thorpe v. Ma-

Mendizabel v. Machado, 2 Sim. caulay, 5 Madd. 218. Shakcll

A Stu. 483. v. Macauley, 2 Sim. & Stu. 79.

(a) 1 Atk, 451. 571. i P.

L 3

150 DEMURRERS.

testimony is alleged to relate can be immediately
investigated in a court of law, and the witnesses are
resident in England, a demurrer will hold (c). Still,
however, where from circumstances, as the age or
infirmity of witnesses, or their intention of leaving
the kingdom, it has been probable that the plaintiff
would lose the benefit of their testimony, though he
should proceed with due diligence at law, the court
has sustained a bill for their examination (d) ; and
to avoid a demurrer in this case it seems necessary
to annex to the bill an affidavit of the circumstance
by means of which the testimony may probably be
lost (e). A bill for the examination of a single wit-
ness has been permitted where his evidence was of
the utmost importance, and he was the only witness
to the point, apparently upon the single ground,
that as he was the only witness there was danger of
losing all evidence of the matter before it could be
given in a court of law : but in this case an affidavit
of the witness was annexed to the bill (/). The
principle on which it is required in these cases to
annex to the bill an affidavit of the circumstance
which renders the examination of witnesses proper

(d) As to the examination of 108.

witnesses under such circum- (e) Philips v. Carew, 1 P.

stances, de bene esse, see Shir- Wms. 117. 1 Ves. & B. 23.

ley v. Earl Ferrers, 3 P. Wms. (/) Shirley v. Earl Ferrers,

77. Palmer v. Lord Aylesbury, 4th Seal after Trin. Term, 1 730.

15 Ves. 176. Andrews v. Pal- MS. N. 3 P. Wms. 77. M.

mer, 1 Ves. & B. 21. Corbett 1730. 8 Ves. 32. See above,

v. Corbett, 1 Ves. & B. 335. p. 52, note («).

DEMURRERS. I5I

in a court of equity, though the matter is capable of
being made immediately the subject of a suit at law
seems to be the same as that on which the practice
of annexing an affidavit of the loss or want of an
instrument, to a bill seeking to obtain in a court of
equity the mere legal effect of the instrument, is
founded, namely, that the bill tends to alter the
ordinary course of the administration of justice, which
ought not to be permitted upon the bare allegation
of a plaintiff in his bill.

II. It has been before noticed, that the establish-
ment of courts of equity has obtained throughout
the whole system of our judicial polity ; and that
most of the inferior branches of that system have
their peculiar courts of equity, the court of chancery
assuming a general jurisdiction in cases not within
the bounds, or beyond the powers of inferior jurisdic-
tions. The principal of the inferior jurisdictions in
England are those of the counties palatine of Chester,
Lancaster, and Durham, the courts of great session
in Wales, the courts of the two universities of Oxford
and Cambridge, the courts of the city of London and
of the Cinque-ports (g). These are necessarily
bounded by the locality either of the subject of the
suit or of the residence of the parties litigant. Where
those circumstances occur which give them juris-
diction they have exclusive jurisdiction in matters
of equity as well as matters of law ; and they have

( g) The court of exchequer, seem to give to any person the
as a court of equity, does not privilege of being sued there.

L 4

152 DEMURRERS.

their own peculiar courts of appeal, the court of
chancery assuming1 no jurisdiction of that nature,
though it will in some cases remove a suit before
the decision into the chancery by writ of certiorari.
When therefore it appears on the face of a bill that
another court of equity has the proper jurisdiction,
either immediately, or by way of appeal, the defendant
may demur to the jurisdiction of the court of chan-
cery. Thus to a bill of appeal and review of a decree
in the court of the county palatine of Lancaster the
defendant demurred, because on the face of the bill
it was apparent that the court of chancery had no
jurisdiction ; and the demurrer was allowed (/?). But
demurrers of this kind are very rare ; for the want of
jurisdiction can hardly appear upon the face of the
bill, at least so conclusively as is necessary (i) to
deprive the chancery, a court of general jurisdiction,
of cognizance of the suit ; and a demurrer for want of
jurisdiction founded on locality of the subject of the
suit, which alone can exclude the jurisdiction of
the chancery in a matter cognizable in a court of
equity, has even been treated as informal and im-
proper^). This, however, can only be considered
as referring to cases where circumstances may give
the chancery jurisdiction, and not to cases where no
circumstance can have that effect. Thus the counties
palatine having their peculiar and exclusive courts
of equity under certain circumstances, which will be

(h) Jennet v.Bishopp, l Vern. (k) See Roberdeau v. Rous,

184. 1 Atk.543.

(i) See 1 Vez. 203, 204.

DEMURRERS- t$<f

more fully considered in another place (/), the court
of chancery will not interfere when all those circum-
stances attend the case, and they are shown to the
court ; though if those circumstances are not shown,
or if they are not shown in proper time, and the
defendant, instead of resting upon them and declining
the jurisdiction, enters into the defence at large, the
court, having general jurisdiction, will exercise it.
But where no circumstance can give the chancery
jurisdiction, as in the case alluded to of a bill of
appeal and review of a decree in a county palatine,
it will not entertain the suit, even though the defend-
ant does not object to its deciding on the subject.

III. If a plaintiff is not entitled to sue by reason
of any personal disability (in), which is apparent in
the bill, the defendant may demur. Therefore, if an
infant, or a married woman, an idiot or a lunatic,
exhibiting a bill, appear upon the face of it to be
thus incapable of instituting a suit alone, and no next
friend or committee is named in the bill, the de-
fendant may demur ; but if the incapacity does not
appear upon the face of the bill the defendant must
take advantage of it by plea. This objection ex-
tends to the whole bill, and advantage may be taken
of it as well in the case of a bill for discovery merely
as in the case of a bill for relief. For the defendant
in a bill for a discovery merely, being always entitled
to costs after a full answer as a matter of course,
would be materially injured by being compelled to

(/) See pleas to the jurisdic- (»i) See Wqrtnaby v. Wart'

Hon of the court of chancery. iiaby, i Jac. R. 377.

154 DEMURRERS.

answer a bill exhibited by persons whose property-
is not in their own disposal, and who are therefore
incapable of paying the costs.

IV. Interest in the subject of the suit, or a right
in the thing demanded, and proper title to institute
a suit concerning it, are essentially necessary to sus-
tain a bill ; and if they are not fully shown by the
bill itself the defendant may demur (rn). Therefore,
where a protestant next of kin claimed a rent-charge
settled on a papist on her marriage, a demurrer was
allowed (n), for the plaintiff had evidently no right
to the thing which he demanded by his bill, the
papist being incapable of taking by purchase, and
the grant of the rent-charge being therefore utterly
void. And where a plaintiff claimed under a will,
and it was apparent upon the construction of the will
that he had no title, a demurrer was allowed (o).
But in this case it was said, that if upon arguing
the demurrer the court had not been satisfied, and
had been therefore desirous that the matter should
be more fully debated at a deliberate hearing (p),
the demurrer would have been over-ruled without
prejudice to the defendant's insisting on the same

(m) See 2 Sch. & Lefr. 638.
Darthez v. Winter, 2 Sim.& Stu.

536.

(n) See Michaux v. Grove,
2 Atk. 210.

(0) Broivnsivord v. Edivards,
2 Vez. 243. See also Beech v.
Crull, Free, in Chan. 589. Par-
ker v. Fear nley, 2 Sim.&Stu.592.

{p) Perhaps this declaration

fell from the Court rather in-
cautiously ; as a dry question
upon the construction of a will
may be as deliberately deter-
mined upon argument of a de-
murrer as at the hearing of a
cause in the ordinary course ;
and the difference in expense
to the parties may be consider-
able. See above p. 108. note(«)

DEMURRERS. 155

matter by way of answer (g), which indeed it should
seem may in all cases be done without the special
declaration of the court, that the over-ruling of the
demurrer shall be without prejudice.

Though the plaintiff in a bill may have an interest
in the subject, yet if he has not a proper title to
institute a suit concerning it a demurrer will hold(r).
Therefore, where persons who had obtained letters
of administration of the estate of an intestate in a
foreign court, on that ground filed a bill seeking an
account of the estate, a demurrer was allowed (s),
because the plaintiffs did not show by their bill a
complete title to institute a suit concerning the sub-
ject ; for though they might have a right to adminis-
tration in the proper ecclesiastical court in England,
and might therefore really have an interest in the
thing demanded by their bill, yet not showing that
they had obtained such administration they did not
show a complete title to institute their suit. And
where an executor does not appear by his bill to have
proved the will of his testator, or appears to have
proved it in an improper (t) or insufficient (V) court,
as he does not show a complete title to sue as exe-
cutor a demurrer will hold.

Want of interest in the subject of a suit, or of a
title to institute it, are objections to a bill seeking
any kind of relief, or filed for the purpose of dis-

(q) 2 Vez. 247. v. Edwards, l Jac. & R. 335.

(r) It seems the plaintiff must (s) Tourton v. Elorvcr, 3 P.

distinctly show a title in equity; Wms. 369.
for, where one stated a title (t) 3 P. Wms. 371.

either at law or in equity a de- («) Combers Case, 1 P. Wms.

murrer was allowed. Edwards 7GG.

156 DEMURRERS.

covery merely. Thus, though there are few cases in
which a man is not entitled to perpetuate the testi-
mony of witnesses, yet if upon the face of the bill the
plaintiff appears to have no certain right to or interest
in the matter to which he craves leave to examine, in
present or in future (V), a demurrer will hold. There-
fore, where a person claiming as devisee in the will
of a person living, but a lunatic, brought a bill to
perpetuate the testimony of witnesses to the will
against the presumptive heir at law (y) ; and where
persons who would have been entitled to the per-
sonal estate of a lunatic if he had been then dead in-
testate, as his next of kin, supposing him legitimate,
brought a bill, in the life-time of the lunatic, to per-
petuate the testimony of witnesses to his legitimacy,
against the attorney-general as supporting the rights
of the Crown (z), demurrers were allowed. For the
parties in these cases had no interest which could be
the subject of a suit ; they sustained no character
under which they could afterwards use the deposi-
tions (a), and therefore the depositions, if taken, would
have been wholly nugatory.

So in every case where the plaintiff in a bill shows
only the probability of a future title upon an event

(x) Smith v. Att. Gen. in (z) Smith v. Att. Gen. in

Chan. Mich. 1777. 6 Ves. 260. Chan. Mich. 1777. 6 Ves. 256.

Allan v. Allan, 15 Ves. 130. 260. 15 Ves. 133- 136.

(y) Sackvill v. Ayleworth,

1 Vera. 105. i Eq. Ca. Ab. («) See 2 Prax. Aim. Cur.

234. Smith v. Watson, in Chan. Can. 501 ; and see The Earl of

20 June 1760. 2 Prax. Aim. Belfast v. Chichester, 2. Jac.

Cur. Cane. 500, where there is & W. 4 39.
the form of a demurrer.

DEMURRERS. 157

which may never happen lie has no right to institute
any suit concerning- it ; and a demurrer will hold to
any kind of bill on that ground, which will extend
to any discovery as well as to relief (/>).

If the claim of the plaintiff is of a matter in it-
self unlawful, as of money promised to a counsellor
at law for advice and pains in carrying on a suit (c) ;
or of money bequeathed by a will to purchase a
dukedom (7/) ; the defendant may demur to the bill,
for the plaintiff not having a lawful claim has no
title to sue in a court of justice.

There are grounds of demurrer to a bill for a dis-
covery merely as well as to a bill for relief. But if
a plaintiff shows a complete title, though a litigated
one, or one that may be litigated, as that of an ad-
ministrator, where a suit is depending to revoke the
administration (e) ; or of an administrator where there
may be another personal representative (/) ; a de-
murrer will not hold, at least to discovery. For in
the first case, till the litigation is determined the
plaintiff's title is good, and in the second case, the
court will not consider the ecclesiastical court as
having done wrong. And where a doubtful title only
is shown it is necessarily sufficient to support a bill
seeking the assistance of the court to preserve pro-
perty in dispute pending a litigation. Therefore where

(b) Sackvill v. Ayleiwrth, v. Rotve, l Rep. in Cha. 38.
Vern. 105. 1 Eq. Ca. Ab. 234. 2 Atk. 332.

Smith v. Alt. Gen. Mich. (d) Earl of Kingston v. Lady

1777. Pierepont, 1 Vern. 5.

158 DEMURRERS.

a suit was pending in an ecclesiastical court touching"
the representation to a person deceased, a demurrer of
one of the parties to that suit, who had possessed the
personal estate of the deceased, to a bill for an account
filed by the other party, was over-ruled (g). The ground
of this decision seems to have been the deficient powers
of the ecclesiastical court for securing the effects
whilst the suit there was depending ; and the doubt
as to the title of the parties was the very ground of
the application to the court.

V. A plaintiff may have an interest in the subject
of his suit, and a right to institute a suit concerning
it, and yet may have no right to call on a defendant
to answer his demand. This may be for want of
privity between the plaintiff and defendant. Thus,
though an unsatisfied legatee has an interest in the
estate of his testator, and a right to have it applied
to answer his demands in a due course of administra-
tion, yet he has no right to institute a suit against
the debtors to his testator's estate for the purpose of
compelling them to pay their debts in satisfaction of
his legacy (h). For there is no privity between the
legatee and the debtors, who are answerable only to
the personal representative of the testator; unless
by collusion between the representative and the

(g) PhippsY. Steward, 1 Atk. (h) Bickly v. Dorrington,

286. And see Andrews v. 10 March 1736, Rolls, 12 Nov.

Powys, 2 Brown, P. C. 504, 1737- Lord Chan, on Appeal,

Toml. Ed. See also Wills v. cited Barnard. 32, & 6 Ves.749.

Rich, 2 Atk. 285, and Morgan Monk v. Pomfret, cited ibid.

v. Harris, 31 Oct. 1786. De- Alsager v. Rowley, 6 Ves. 748,

raurrer over-ruled, 2 Bro. C. C. and the cases there cited and

121. referred to. 9 Ves. 86.

DEMURRERS. 1 59

debtors, or other collateral circumstance, a distinct
ground is given for a bill by the legatee against the
debtors (//). So a bill filed by the creditors of a person
who was one of the residuary legatees of a testator,
against the executors of the testator, the other resi-
duary legatees, and the executrix of their debtor,
was dismissed (J).

But where an agent has been employed, his prin-
cipal has in many cases a right to a discovery of
his transactions, and to demand the property with
which he has been intrusted, or the value of it,
against those with whom the agent has had deal-
ings ; and therefore, where a merchant who had em-
ployed a factor to sell his goods filed a bill against
the persons to whom the goods had been sold, for
an account, and to be paid the money for which the
goods had been sold, and which had not been paid
to the factor, a demurrer was over-ruled (k). So
where a merchant acting upon a commission del
credere became bankrupt, having sold goods of his
principals for which he had not paid them, and
shortly before his bankruptcy drew bills on the ven-
dees, which he delivered to some of his creditors to
discharge their demands, they knowing his insol-
vency, a suit by the principals was maintained
against the persons who had received the bills, for
an account and payment of the produce. But the

(h) 3 Madd. 159. others, on demurrer, 10 April

(i) Elmslie v. M'Aulay, 1793. 2 Ves. jun. §5. S. C.

3 Bro. C. C. 624. And see 4 Bro. C C 270.

Utterson v. Mair, Vernon and (k)Lissetv. Reave, 2 Atk.394.

*G0 DEMURRERS.

book-keeper of the bankrupt having been made a
party, as one of the persons to whom bills had
been so delivered, and having denied that fact by
his answer, he was not compelled to answer to the
rest of the bill, which, independent of that fact, was,
as to him, a mere bill for discovery of evidence (/).

VI. The plaintiff must by his bill show some claim
of interest in the defendant in the subject of the suit(W),
which can make him liable to the plaintiff's demands,
or the defendant may demur (n). Therefore, if a
bill is filed to have the benefit of or to impeach an
award, and the arbitrators are made parties, they
may demur to the whole bill, as well to discovery as
relief (0) ; for the plaintiff can have no decree against

(l) Neuman v. Godfrey, dulent or improper conduct be

2 Bro. C. C. 332. 2 Ves. J. 457. charged, and the costs be pray-*

See Att.Gen.v. Skinners Comp. ed against them. See 7 Ves.

5Madd. 173, particularly at p. 288. 14 Ves. 252. Le Texier

194. But see Cookson \. Ellison, v. Margravine of Anspach, 15

2 Bro. C.C. 252, and the other Ves. 159. Botvles v. Stewart,

subsequent cases on the neces- 1 Sch. & Left. 209. ib. 227.

sity of answering fully. See be- 1 Meriv. 123. And, this obser-

low, Chap. 2. sect. 2. part. 3. vation of course applies more

(m) See Doivlin v. Macdou- strongly where the parties may

gall, 1 Sim. & Stu. 367. be interested, but cannot other-

(n) 2 Eq. Ca. Ab. 78. There wise be made defendants for

are, however, instances in which want of privity. See 3 Barnard,

persons not interested in the 32. Doran v. Simpson, 4 Ves.

subject of dispute, may by their 651. 6 Ves. 750. 9 Ves. 86.

conduct so involve themselves Salvidgev. Hyde, 5 Madd. 138.

in the transaction relating to it, S. C. 1 Jac. R. 151.
that they may be held liable to (0) Steward v. E. I. Comp.

costs ; and under such circum- 2 Vera. 380. See 14 Ves. 254.

stances it seems they cannot Goodman v. Sayers, 2 Jac. &

demur to the bill, if the frau- \y. 249.

DEMURRERS. 101

them, nor can he read their answer against the other
defendants. Indeed, where an award has been im-
peached on the ground of gross misconduct in the
arbitrators, and they have been made parties to the
suit, the court has gone so far as to order them to
pay the costs (p) ; and probably, therefore, in such a
case a demurrer to the bill would not have been al-
lowed. A bankrupt made party to a bill against his
assignees touching his estate may demur to the relief
all his interest being transferred to his assignees (</) ;
but it seems to have been generally understood, that
if any discovery is sought of his acts before he became
a bankrupt, he must answer to that part of the bill for
the sake of discovery, and to assist the plaintiff in
obtaining proof, though his answer cannot be read
against his assignees ; and otherwise the bankruptcy
might entirely defeat justice (r). Upon the same prin-
ciple it seems also to have been considered, that
where a person having had an interest in the sub-
ject of a bill has assigned that interest, he may yet
be compelled to answer with respect to his own acts
before the assignment.

It is difficult to draw a precise line between the

(p) Lingood v. Croucher, 5 Madd. 48. Lloyd v. Lander,

2 Atk. 395. Chicot v. Lequesne, 5 Madd. 282 ; but, it seems,

2 Vez. 315, and the case of that if fraud were charged and

Ward v. Periam, cited ib. 316. costs were prayed against him,

1 Turn. R. 131, note. Lord he could not demur, ib. and

Lonsdale v. Littledale, 2 Ves. 15 Ves. 164. See also King v.

jun. 451. 14 Ves. 252. Martin, 2 Ves. jun. 641.

(q) Whitxxsorthv. Davis, lVes. (r) Upon this passage see

& Bea. 545. S. C. 2 Rose, 1 Ves. & Bea. 548, 549, 550.
B.C. 11 6. Bailey v. Vincent,

id -J DEMURRERS;

cases iii which a person having* no interest may be
called upon to answer for his own acts, and those in
which he may demur, because he has no interest
in the question. Thus, where a creditor who had
obtained execution against the effects of his debtor
filed a bill against the debtor, against whom a com-
mission of bankrupt had issued, and the persons
claiming as assignees under the commission, charging
that the commission was a contrivance to defeat the
plaintiff's execution, and that the debtor having by
permission of the plaintiff possessed part of the goods
taken in execution for the purpose of sale, and in-
stead of paying the produce to the plaintiff had
paid it to his assignees, a demurrer by the alleged
bankrupt, because he had no interest, and might be
examined as a witness, was over-ruled, and the deci-
sion affirmed on re-hearing (s). A difference has also
been taken where a person concerned in a transac-
tion impeached on the ground of fraud has been
made party to a bill for discovery merely (t) ; or as
having the custody of an instrument for the mutual
benefit of others (m).

To prevent a demurrer a bill must in many cases
not only show that the defendant has an interest in
the subject, but that he is liable to the plaintiff's de-

(s) Kingv. Martin andothers, 2 Vez. 627. 629, as to the evi-

25 July 1795, rep. 2 Ves. jun. dence of a person charged as

641. particeps criminis, in support

(£) Cotton v. Luttrell, Trin. of a transaction impeached as

1738. Bennet v. Vade, 2 Atk. fraudulent.

324. See above, p. 160, note (n). (m) 3 Atk. 701.
See also Bridgman v. Green,

DEMURRERS. 163

mands(tr). As where a bill was brought upon a ground
of equity by the obligee in a bond against the heir
of the obligor, alleging that the heir having assets
by descent ought to satisfy the bond ; because the
bill did not expressly allege that the heir was bound
in the bond, although it did allege that the heir
ought to pay the debt, a demurrer was allowed ( y) .
So where a bill was brought by a lessor against an
assignee touching a breach of covenant in a lease,
and the covenant, as stated in the bill, appeared to
be collateral, and not running with the land, did not
therefore bind assigns, and was not stated by the bill
expressly to bind assigns, the assignee demurred,
and the demurrer was allowed (z).

VII. If for any reason founded on the substance
of the case as stated in the bill the plaintiff is not
entitled to the relief he prays, the defendant may
demur. Many of the grounds of demurrer already
mentioned are perhaps referrible to this head ; and
in every instance, if the case stated is such that
admitting the whole bill to be true the court ought
not to give the plaintiff the relief or assistance he
requires in the whole or in part, the defect thus ap-
pearing on the face of the bill is sufficient ground of
demurrer (a).

VIII. It is the constant aim of a court of equity
to do complete justice by deciding upon and settling

(x) See Ryves v. Ryves, (z) Lord Uxbridge v. Stave-
3 Ves. 343. land, 1 Vez. 56.

(y) Crosscing v. Honor, l {a) 7 Ves. 245. 2 Sch. &

Vern. 180. Lefr. C38. 6 Madd. <)j.

M 2

164 DEMURRERS.

the rights of all persons interested in the subject of
the suit, to make the performance of the order of
the court perfectly safe to those who are compelled
to obey it, and to prevent future litigation (£). For
this purpose all persons materially interested in the
subject ought generally to be parties to the suit,
plaintiffs or defendants, however numerous they may
be, so that the court may be enabled to do complete
justice, by deciding upon and settling the rights of
all persons interested, and that the orders of the
court may be safely executed by those who are com-
pelled to obey them, and future litigations may be
prevented (c).

This general rule, however, admits of many quali-
fications. When a person who ought to be a party
is out of the jurisdiction of the court, that fact being-
stated in the bill, and admitted by the defendants,
or proved at the hearing, is in most cases a sufficient
reason for not bringing him before the court ; and the
court will proceed without him against the other par-
ties, as far as circumstances will permit (d). It is usual,
however, to add the name of a person out of the juris-
diction of the court as a party to the bill, so far as
may be necessary to connect his case with that of

(b) See Knight v. Knight, Cotvslad v. Cell/, Prec. in Chan.

3 P. Wms. 331. But see also 83. Danvent v. Walton, 2

Cullen v. Duke of Queensberry, Atk> Williams v. Whin-

1 Bro. C. C. 101. * » n n j

yates, 2 Bro. C. C. 399 ; and,

(c) 3 P- Wms. 333, 334 3 tf the disposition of ^ 0.
Atk. 51. 7 Ves. 563. 12 Ves. , .■ , „r,
53. 1 Meriv. 262. Beaumont Perfcy be m the Power of the
v. Meredith, 3Ves.&Bea. 182. other parties, the Court, it
1 Sch. & Lefr. 298. seems, will act upon it. 1 Sch.

(d) 1 Vez. 385 ; and see & Lefr. 240.

DEMURRERS. l6j

the other parties ; and the bill may also pray process
against him in case he should become amenable to
such process ; and if in fact he should become so
amenable pending the suit he ought to be brought
before the court, either by issuing process against
him, if process should have been prayed against him,
and if not, by amending the bill for that purpose, if
the state of the proceedings will admit of such amend-
ment, or by supplemental bill if they will not (e). If
a person so out of the power of the court is required
to be an active party in the execution of its decree,
as where a conveyance by him is necessary, or if
the decree ought to be pursued against him, as the
foreclosure of a mortgagee against the original mort-
gagor, or his representative or assign, the proceed-
ings will unavoidably be to this extent defective (f).
A foreign corporation not amenable to the jurisdic-
tion of the court falls within this description, and
a corporation in Scotland is considered for this pur-
pose as a foreign corporation (g).

When the object of a suit is to charge the personal
property of a deceased person with a demand, it is
generally sufficient to bring before the court the per-
son constituted by law to represent that property,
and to answer all demands upon it; and the difficulty
of bringing before the court, in some cases, all the
persons interested in the subject of a suit, has also

(<?) See Haddock v. Thorn- (g) Att. Gen. v. Baliol, Coll.

linson, 2 Sim. & Stu. 2iq. in Cha. 10 Dec. 1744. Lord

(f) Fell v. Brown, 2 Bro. Hardvoicke, as to the Univer-

C. C. 277 ; see above, p. 32. sity of Glasgow.

l66 DEMURRERS.

induced the court to depart from the general rule (h),
where the suit is on behalf of many in the same in-
terest, and all the persons answering that description
cannot easily be discovered or ascertained. Thus a
few creditors may substantiate a suit on behalf of
themselves and the other creditors of their deceased
debtor, for an account and application of his assets,
real as well as personal, in payment of their de-
mands (i) ; and the decree being in that case applied
to all the creditors, the other creditors may come in
under it, and obtain satisfaction of their demands
equally with the plaintiffs in the suit ; and if they
decline to do so they will be excluded the benefit
of the decree, and will yet be considered as bound
by acts done under its authority (k). As a single
creditor may sue for his demand out of personal
assets, it is rather matter of convenience than of in-
dulgence to permit such a suit by a few on behalf of
all the creditors ; and it tends to prevent several suits
by several creditors, which might be highly inconve-
nient in the administration of assets, as well as bur-
thensome on the fund to be administered ; for if a
bill be brought by a single creditor for his own debt,

(h) Prec. in Chan. 592. 170, notes (u) and (x). Ellison

Pearsonv. Belchier,4.Ves.62'j. v. Bignold, 2 Jac. & W. 503.

Lloyd v. Loaring, 6 Ves. 773. Manning v. Thesiger, 1 Sim. &

11 Ves. 367. Adair v. Nero Stu. 106. Gray v. Chaplin,

Hirer Comp. 1 1 Ves. 429. 2 Sim. & Stu. 267.

CocHburn v. Thompson, 16 Ves. (i) 2 Vez. 313. Lata v. Rigby,

321. Beaumont v. Meredith, 4 Bro. C. C. Co.

3 Ves. & Bea. 180. Meux v. (k) See Good v. Bletvittf

Maltby, 2 Swanst. 277, and 19 Ves. 336, and Angell v.

cases there cited; and see below, Haddon, 1 Madd, R. 529.

demurrers; 7(»7

lie may as at law gain a preference by the judgment
in his favour over other creditors in the same degree,
who may not have used equal diligence (/).

But some of a number of creditors, parties to a
trust-deed for payment of debts, have been per-
mitted to sue on behalf of themselves and the other
creditors named in the deed for execution of the
trust (m), although one of those creditors could not
in that case have sued for his single demand without
bringing the other creditors before the court. This
seems to have been permitted purely to save ex-
pense and delay. If a great number of creditors,-
thus specially provided for by a deed of trust, were
to be made plaintiffs, the suit would be liable to
the hazard of frequent abatements ; and if many
were made defendants the same inconvenience might
happen, and additional expense would unavoidably
be incurred.

By analogy to the case of creditors, a legatee is
permitted to sue on behalf of himself and other lega-
tees ; and as he might sue for his own legacy only,
a suit by one on behalf of all the legatees has the
same tendency to prevent inconvenience and expense
as a suit by one creditor on behalf of all creditors of
the same fund (11) ; but in a suit by a single legatee for

(7) See Att. Gen. v. Cornth- (m) Corry against Trist,i Dec.
watte, 2 Cox, R. 44 ; an instance 1 7^6. BovA v.Kinder, 3 Swanst.

» , .« v -i i-4.„ I44)ii. Boddi/ v. Kent, 1 Meriv.

of a bill by a single creditor. J7> , , ^ „ , c. •

3 ° 361. Weld v. Bon/iam, 2 01m.

And see Haycock v. Haycock, & gtu. 91. Handfordv. Storie,

2 Ca. in Cha. 124. Bedford v. 2 Sim. & Stu. 196.

Leigh, Dick. 707. Hall v. Bin- (?l) 6 Ves. 779; and see

ney, 6 Ves. 738. Morse v. Sadler, 1 Cox, It. 352.

M 4

1 68 DEMURRERS.

his own legacy, unless the personal representative
of the testator, by admitting assets for payment of
the legacy, warrants an immediate personal decree
against himself, by which he alone will be bound («),
the court will direct a general account of all the lega-
cies of the same testator, and payment of the legacy
claimed rateably only with the other legacies, no
preference being allowed amongst legatees in the
administration of assets (o).

When the court has pronounced a decree for an
account and payment of debts or legacies under
which all creditors or legatees may claim, it will re-
strain subsequent proceedings by a separate creditor
or legatee, either at law or in equity, as the just
administration of the assets would be greatly embar-
rassed by such proceedings (p).

Where all the inhabitants of a parish had rights of
common under a trust, a suit by one on behalf of

(n) See Boys v.Ford, 4Madd. the creditors and the specific

40. and pecuniary legatees. 2 Ca.

(0) To a bill by a specific or in Cha. 1 24. Parsons v. Neville,

pecuniary legatee for payment, 3 Bro. C. C 365. 16 Ves. 328.

neither the residuary legatees* And see 1 Sim. & Stu. 106.
(see 1 Vern. 261 ; Waiwwright (/>) 1 Sch. & Lefr. 299, and

v. Waterman, 1 Ves. jun. 31 1 ; cases cited there, in note (b) ;

1 Madd. It. 448), nor generally, and see Douglas v. Clay, Dick.

(see 2 Ca. in Cha. 1 24 ; and see 393. Brooks v. Reynolds, Dick.

Morse v.Sadler, 1 Cox, R. 352,) 603. S. C. 1 Bro. C. C. 183.

any other of the legatees, need Rush v. Higgs, 4 Ves. 638.

be made parties ; but on such a Paxton v. Douglas, 8 Ves. 520.

bill by one of several residuary Terrewest v. Featherby, 2 Meriv.

legatees, he must in general 480. Curre v. Botvyer, 3 Madd.

bring before the court all the 456. Farrell v. Smith, 2 Ball

other persons interested in the & B. 337. 1 Jac. R. 122. Lord

residue, after satisfaction of v. Wormleighton, 1 Jac. R. 148.

DEMURRERS. \6g

himself and the other inhabitants was admitted ((/).
It has been doubted whether the attorney-general
ought not to have been a party to that suit (r), and
accordingly, on a bill filed by some of the sufferers by
a fire against the trustees of a collection made for the
sufferers generally, it was objected at the hearing, that
the attorney-general ought to have been a party, and
that otherwise the decree would not be conclusive ;
and the cause was accordingly ordered to stand over
for the purpose of bringing the attorney-general before
the court (V). But where a bill was brought for
distribution of private contributions, the objection
that the attorney-general was not a party was over-
ruled (t).

For the application of personal estate amongst next
of kin, or amongst persons claiming under a general
description, as the relations of a testator or other
person, where it may be uncertain who are all the
persons answering that description, a bill has been
admitted by one claimant on behalf of himself and the
other persons equally entitled (11). And the necessity
of the case has induced the court, especially of late
years, frequently to depart from the general rule,

(q) l Ca. in Cha. 269. 84; but this point is not no-

Blackham against the Warden ticed by Atkyns. Nutt v.

and Society of Sutton Cohlficld. Broivn, 20 July 1745. Anon.

See Att. Gen. v. Heelis, 2 Sim. 3 Atk> 22?> , Sim & gtu> ^

& btu. 07. The attorney or solicitor-general

(r) See Att. Gen. v. Moses, is usuall a necessa t to

2 Madd. It. 294. / . . . ■ - ,

, , _ „ _ , ~ ^ suits relating to charity funds,

(.s) Overall v. Peacock, u Dec. _, rrr ... , ° J „.

1 737. See Weilbelovedv. Jones, See WeUbelox cd v. Jones, 1 Sim.

1 Sim. & Stu. 40. & Stu.40 ; and above, pp. 22.99.
(/) Lee v. Carter, 17 Nov. (") See Ambl. 710; 1 Russ.

J 740, MS. N. reported 3 Atk. R. 166. «

170

DEMURRERS.

where a strict adherence to it would probably amount
to a denial of justice ; and to allow a few persons to
sue on behalf of great numbers having the same in-
terest (11).

There are also other cases in which the interests
of persons not parties to a suit may be in some
degree affected, and yet the suit has been permitted
to proceed without them, as a bill brought by a
lord of a manor against some of the tenants, or by
some of the tenants against the lord, on a question
of common ; or by a parson for tithes against some
of the parishioners, or by some of the parishioners
against the parson, to establish a general parochial
modus (#).

In many cases the expression that all persons in-
terested in the subject must be parties to a suit, is
not to be understood as extending to all persons who

(«) Chancey v. May, Prec.
in Chan. 592 (Finch Ed.).
Gilb. 230. 1 Atk. 284. Leigh
v.Thomas, 2Ves. 312. Pearson
v. Belchier, 4 Ves. 627. Lloyd
v. Loaring, 6 Ves. 773. Good v.
Blewitt, 13 Ves. 397. Cockbum
v. Thompson, 16 Ves. 321.
3 Meriv. 510. Manning v.
Thesiger, 1 Sim. & Stu. 106.
Baldwin v. Lawrence, 2 Sim.
& Stu. 18. Gray v. Chaplin,
1 Sim. & Stu. 267 ; but it seems

however, Van Sandau v. Moore,

I Russ. R. 441.

(x) 1 Atk. 283. 3 Atk. 247.
Chaytorv. Trin. Coll. Anst. 841 .

I I Ves. 444 ; and see Adair v.
New River Comp. 11 Ves. 429.
16 Ves. 328. l Jac. & W.
369. 2 Swanst. 282 ; but it
appears that where it is at-
tempted to proceed against
some individuals representing
a numerous class, as against
churchwardens representing the

that except, perhaps, in the parishioners in respect of a

common cases of this kind, it is church-rate, it must be alleged

necessary to allege that the that the suit is brought against

parties are too numerous to be them in such representative

individually named, Wcldv.Bon- character, 5 Madd. 13.
ham, 2 Sim. & Stu. 91. See?

DEMURRERS. I7I

may be consequentially interested. Thus, in the case
of a bill which may be brought by a single creditor
for satisfaction of his single demand out of the assets
of a deceased debtor, as before noticed, although the
interest of every other unsatisfied creditor may be
consequentially affected by the suit, yet that interest
is not deemed such as to require that the other cre-
ditors should be parties ; notwithstanding, the decree
if fairly obtained will compel them to admit the de-
mand ascertained under its authority as a just demand,
to the extent allowed by the court in the administra-
tion of assets ; but they will not be bound by any
account of the assets taken under such a decree. So
in all cases of bills by creditors, or legatees, the
persons entitled to the personal assets of a deceased
debtor or testator, after payment of the debts or
legacies, are not deemed necessary parties, though
interested to contest the demands of the creditors
and legatees ; and, if the suits be fairly conducted,
they will be bound to allow the demands admitted
in those suits by the court, though they will not be
bound by any account of the property taken in their
absence (?/).

To a bill to carry into execution the trusts of
a will disposing of real estate by sale or charge of
the estate, the heir at law of the testator is deemed
a necessary party, that the title may be quieted
against his demand; for which purpose the bill

(y) See the case of Bedford 303. Wainwright v. Waterman,
v. Leigh, Dick. 707. And see 1 Ves. J. 31 3. Brown v. Dovoth-
Lavoson v. Barker, 1 Bro. C. C. watte, 1 Madd. R. 448.

172 DEMURRERS.

usually prays that the will may be established against
him by the decree of the court ; but if the testator
has made a prior will containing a different disposi-
tion of the same property, and which remains un-
cancelled, and has not been revoked except by the
subsequent will, it has not been deemed necessary
to make the persons claiming under the prior will
parties ; though if the subsequent will be not valid,
those persons may disturb the title under it as well
as the heir of the testator. If, however, the prior
will is insisted upon as an effective instrument not-
withstanding the subsequent will, the persons claim-
ing under it may be brought before the court, to quiet
the title, and protect those who may act under the
orders of the court in executing the latter instru-
ment (s).

If no heir at law can be found, the king's attorney-
general is usually made a party to a bill for carrying
the trusts of a devise of real estate into execution,
supposing the escheat to be to the Crown, if the will
set up by the bill should be subject to impeach-
ment (a). But if any person should claim the es-
cheat against the Crown, that person may be a
necessary party.

If the heir at law of a testator who has devised
a real estate on trusts should be out of the jurisdic-
tion of the court, and that fact should be charged

(z) See on the general sub- (a) See the case of Att. Gen.

ject, Harris v. Ingledetv, 3 P. v. Mai/or of Bristol, 3 Madd.

Wms. 91. Leivis v. Naugle, 319. S. C. 2 Jac. & W. 294,
2 Vez. 431. i Vcs. jun, 29.

DEMURRERS. 1 ~ t)

and proved, the court will proceed to direct the
execution of the trusts upon full proof of the due
execution of the will and sanity o( the testator ;
thouo-h that evidence cannot be read against the heir
if he should afterwards dispute the will, and the
court therefore cannot establish the will against him,
or in any manner ensure the title under it against his
claim > v''>\

Where real property in question is subject to an
entail it is generally sufficient to make the first
person in being-, in whom an estate of inheritance
is vested, a party with those claiming prior interests,
omitting those who may claim in remainder or re-
version after such vested estate of inheritance (c) ;
and a decree against the person having that estate of
inheritance will bind those in remainder or rever-
sion, though by failure of all the previous estates
the estates then in remainder or reversion may after-
wards vest in possession (d). It has therefore been
determined that a person so entitled in remainder,
and afterwards becoming entitled in possession, may
appeal from a decree made against a person having
a prior estate of inheritance, and cannot avoid the.
effect o\^ the decree by a new bill (e).

Contingent limitations and executory devises to
persons not in being may in like manner be bound

(b) See Will iantsv.Whmyates, 1 Eden, R. 518. S. C. 3 Bro.
•2 Bro.C.C. 399; and see French P. C. 204. Toml. Ed.

v. Baron, 2 Atk. ISO. S. C. {d) See Lloi/d v. Jo1'.

Dick, 138. g Ves. 37. 16 Ves. 326.

2 Vez. 49'J. Pclham v. Gregory,

174 DEMURRERS.

by a decree against a person claiming a vested estate
of inheritance ; but a person in being claiming under
a limitation by way of executory devise, not subject
to any preceding vested estate of inheritance by
which it may be defeated, must be made a party to
a bill affecting his rights (/).

If a person entitled to an interest prior in limita-
tion to any estate of inheritance before the court,
should be born pending the suit, that person must
be brought before the court by a supplementary pro-
ceeding. And if by the determination of any con-
tingency a new interest should be acquired, not
subject to destruction by a prior vested estate of
inheritance, the person having that interest must be
brought before the court in like manner. And if
by the death of the person having, when the suit
was instituted, the first estate of inheritance, that
estate should be determined, the person having the
next estate of inheritance, and all the persons having
prior interests, must be so brought before the court (o-).

Trustees of real estate for payment of debts or
legacies may sustain a suit, either as plaintiffs or de-
fendants, without bringing before the court the cre-
ditors or legatees for whom they are trustees, which
in many cases would be almost impossible ; and the
rights of the creditors or legatees will be bound by
the decision of the court against the trustees (/*).

The interests of persons claiming under the pos-

(y) See Handcock v. Shaen, (g) See 2 Sch. & Lefr. 210.

Coll. P. C. 122, and Anon. (h) See Franco v. Franco,

2 Eq. Ca. Abr. 166. Sherrit v. 3 Ves. 75 ; and see Curteis v.

Birch, 3 Bro. C. C. 229. Candler, 6 Madd. 123.

DEMURRERS. 1 75

session of a party whose title to real property is dis-
puted, as his occupying tenants, under leases, are
not deemed necessary parties ; though if he had a
legal title, the title which they may have gained
from him cannot be prejudiced by any decision on
his rights in a court of equity in their absence ; and
though if his title was equitable merely they may
be affected by a decision against that title. Some-
times, if the existence of such rights is suggested at
the hearing, the decree is expressly made without
prejudice to those rights, or otherwise qualified ac-
cording to circumstances. If therefore it is intended
to conclude such rights by the same suit, the persons
claiming them must be made parties to it; and
where the right is of a higher nature, as a mortgage,
the person claiming it is usually made a party (J).

To a suit for the execution of a trust, by or against
those claiming the ultimate benefit of the trust, after
the satisfaction of prior charges, it is not necessary
to bring before the court the persons claiming the
benefit of such prior charges ; and therefore, to a bill
for application of a surplus paid after payment of
debts and legacies, or other prior encumbrances, the
creditors, legatees, or other prior encumbrancers,
need not be made parties (k). And persons having
demands prior to the creation of such a trust may
enforce those demands against the trustees without
bringing before the court the persons interested
under the trust, if the absolute disposition of the
property is vested in the trustees. But if the trus-

(t) See 2 Vez. 450. (k) See Anon. 3 Atk. 572.

1/0 DEMURRERS.

tees have no such power of disposition, as in the
case of trustees to convey to certain uses, the per-
sons claiming the benefit of the trust must also be
parties. Persons having specific charges on the
trust-property in many cases are also necessary par-
ties ; but this will not extend to a general trust for
creditors or others whose demands are not distinctly
specified in the creation of the trust, as their num-
ber, as well as the difficulty of ascertaining who
may answer a general description, might greatly
embarrass a prior claim against a trust-property (/).

If a debt by a covenant or obligation binding the
heir of the debtor is demanded against his real assets
in the hands of a devisee under the statute 3 and 4
W. & M. c. 14, the heir must always be a party (ni);
and if any assets have descended to the heir they are
first applicable, unless the assets devised are charged
with debts in exoneration of the heir. The personal
representative of the deceased debtor is also generally
a necessary party (/?), as a court of equity will first
apply the personal, in exoneration of the real, assets.

(I) As to cestui que trusts out making the persons claim-
being parties, see Kirk v. Clark, ing the other shares thereof
Pre. in Cha. 275. Adams v. St. parties to the suit. Smith v.
Leger,l Ball &B. 181. Calverley Snotv, 3 Madd. 10.
v. Phelp, 6 Madd. 229. Doug- (m) Gawler v. Wade, 1 P.
las v. Horsjall, 2 Sim. & Stu. Wms. 100. Warren v. Statvell,
1 84. It may here be observed, 2 Atk. 1 25.
that if the trust-property be (h) Knight v. Knight, 3 P.
personal, and its amount be as- Wms. 331. 3 P. Wms. 350.
certained, one entitled to an 3 Atk. 406. 1 Eq. Ca. Abr. 73.
aliquot part thereof may sue Lowe v. Farlie, 2 Madd. R.
the trustees for the same, with- 101. 2 Sim. & Stu. 292.

DEMURRERS. 1 77

When there has been no general personal represen-
tative, a special representative by an administration
limited to the subject of the suit has been required.
In other cases where a demand is made against a
fund entitled to exoneration by general personal
assets, if there are any such, a like limited admini-
strator is frequently required to be brought before
the court. This seems to be required rather to
satisfy the court that there are no such assets to
satisfy the demand : for although the limited admi-
nistrator can collect no such assets by the authority
under which he must act, yet as the person entitled
to general administration must be cited in the eccle-
siastical court before such limited administration can
be obtained, and as the limited administration would
be determined by a subsequent grant of general
administration, it must be presumed that there are
no such assets to be collected, or a general admini-
stration would be obtained (o).

The personal representative thus brought before
the court must be a representative constituted in
England ; and although there may be personal assets
in another country, and a personal representative
constituted there, yet as he may not be amenable to
the process of the court, and those assets must be

(0) See the case of Glass v. twelve months from the decease

Oxcnham, 2 Atk. 121. Where of the testator, be ohtained to

probate has been granted, and defend a suit, or to carry a de-

the executor has subsequently cree into execution, by virtue of

departed out of the realm, a spe- stat. 38 Geo. 3, c. 87. Rains-

cial administration may, after ford v. Taynton, 7 Ves. 460.

I78 DEMURRERS.

subject to administration according to the laws of
that country, such a representative is not deemed
a necessary party to substantiate a demand against
the real assets in England (p).

Where a claim on property in dispute would vest
in the personal representative of a deceased person,
and there is no general personal representative of that
person, an administration limited to the subject of
the suit may be necessary to enable the court to
proceed to a decision on the claim ; and when a
right is clearly vested, as a trust-term, which is
required to be assigned, an administration of the
effects of the deceased trustee limited to the trust-
term is necessary to warrant the decree of the court
for assignment of the term.

In some cases, when it has appeared at the hear-
ing of a cause, that the personal representative of a
deceased person, not a party to the suit, ought to be
privy to the proceedings under a decree, but that no
question could arise as to the rights of such repre-
sentative on the hearing, the court has made a decree
directing proceedings before one of the masters of
the court, without requiring the representative to be
made a party by amendment or otherwise ; and has
given leave to the parties in the suit to bring a
representative before the master on taking the ac-
counts or other proceedings directed by the decree,
which may concern the rights of such representa-
tive ; and a representative thus brought before the

(p) See Jauncy and Sealey, 2 Madd. R. 101. Logan v.
1 Vern 397. and Lowe v. Farlie, Farlie, 2 Sim. & Stu. 284.

DEMURRERS. Ijg

master is considered as a party to the cause in the
subsequent proceedings (p).

In most cases the person having the legal title in
the subject must be a party, though he has no bene-
ficial interest, that the legal right may be bound by
the decree of the court (q). Thus if a bond or judg-
ment be assigned, the assignor as well as the assignee
must be a party, for the legal right of action remains
in the assignor (r).

In some cases, however, it may still remain a
question of considerable difficulty who are necessary
parties to a suit. It may indeed be doubtful until
the decision of the cause what interests may be
affected by that decision ; and sometimes parties
must be brought before the court to litigate a ques-
tion, who had, according to the decision, no interest
in the subject ; and as to whom therefore whether
plaintiffs or defendants, the bill may be finally dis-
missed, though the court may make a decree on the
subject as between other parties, which will be con-
clusive on the persons as to whom the bill may be so
dismissed, but which the court would not pronounce
in their absence, if amenable to its jurisdiction.

Sometimes, too, a plaintiff, by waving a particular
claim, may avoid the necessity of making parties

(p) See Fletcher v. Ash- (r) See Cathcart v. Lewis,

burner, l Bro. C. C. 497. x Ves. J. 463 ; but see Brace v.

1 Ves. jun. 69. Harrington, 2 Atk. 235, and
{q) As to the case of a trus- BiaJce v# Jones^ 3 Anstr. 651.

tee, see Pre. in Cha. 275. 3 Bar- „ , n _ A„j,„«n„

j n . tV , See also lu/an v. Anderson,

nard, 325. Burt v. Dennet, », ,, „, T 11

2 Bro. C. C. 225. 7 Ves. 11. 3 Madd. 174- FAncy v. Jewell,
Cholmondeley v. Clinton, 2 Me- 6 Madd. 165. 2 Sim. & Stu.
r»v- 71- 253.

N 2

l8o DEMURRERS.

who might be affected by it, though that claim might
be an evident consequence of the rights asserted by
the bill against other parties. This, however, can-
not be done to the prejudice of others.

Whenever a want of parties appears on the face
of a bill, the want of proper parties is a cause of
demurrer (s). But if a sufficient reason for not
bringing a necessary party before the court is sug-
gested by the bill ; as if a personal representative is
a necessary party, and the representation is charged
to be in litigation in the ecclesiastical court (t) ; or if
the bill seeks a discovery of the parties interested in
the matter in question for the purpose of making
them parties, and charging, that they are unknown to
the plaintiff; a demurrer for want of the necessary
parties will not hold(w).

A demurrer for want of parties must show who
are the proper parties : not indeed by name, for that

(s) Clark v. Lord Angler, 349. Qucere, whether a demur-

1 Ca. in Cha. 41. Nels. R. 78, rer for want of parties should be
93. Asiley v. Fountain?, Finch, to the whole bill. See E. I.
R. 4. Weston v.Keighley, Finch, Company v. Coles, reported 3
R. 82. Ativood v. Hawkins, Swanst. 142, note; and see the
Finch, R. 113. GaUex. Green- cases of Ativood v. Hawkins,
hill, Finch, R. 202. 3 P.Wms. Finch, R. 1 13. Astley v. Foun-
311, note. Knight v. Knight, taine, Finch, R. 4, and Bressen-
3 P.Wms. 331. 2 Atk. 570. den v. Decreets, 2 Ca. in Cha.
1Eq.Ca.Ab.72. 2Eq.Ca.Ab. 197, cited 3 Swanst. 144. n.
165. Cockburn v. Thompson, ljX A ,

a xr 00 , r l n « 0 2 Atkyns> 5L; and see

16 Ves. 321. Cook v. Butt, , v „ J ,_. '

r iv/r a a ,n w j j c *, Jones v- Frost, 3 Madd. 1.

6 Madd. 53. Weld v. Bonham,

2 Sim. & Stu. 91 . Gray v. Chap- (u) Bowyer v. Covert, 1 Vern.
lin, 2 Sim. & Stu. 267. Maule 95- Heath v. Percival, 1 P.
v. Duke of Beaufort, 1 Russ. R. Wms, 682. 684.

DEMURRERS. 1 S 1

might be impossible ; but in such manner as to point
out to the plaintiff the objection to his bill, and
enable him to amend by adding the proper parties (#).
In case of a demurrer for want of parties the court
has permitted the plaintiff to amend, when the de-
murrer has been held good upon argument (j/).

IX. The court will not permit a plaintiff to de-
mand, by one bill, several matters of different natures
against several defendants (z) ; for this would tend
to load each defendant with an unnecessary burthen
of costs, by swelling the pleadings with the state of
the several claims of the other defendants, with which
he has no connection. A defendant may therefore
demur, because the plaintiff demands several matters
of different natures of several defendants by the same
bill (a). But as the defendants may combine toge-
ther to defraud the plaintiff of his rights, and such
a combination is usually charged by a bill, it has
been held that the defendant must so far answer the
bill as to deny combination (/>). In this however,

(.r) Upon this subject see 94. Kaye v. Moore, 1 Sim. &

C Ves. 781 ; 11 Ves. 369 ; Stu. 61. Deiv v. Clarke, 1 Sim.

lG Ves. 325; 3 Madd. 62. & Stu. 108. Turner v. Robinson,

(y) Bressenden v. Decreets, 1 Sim. & Stu. 313, and SkacJcett

2 Ch. Ca. 197. v. Macaulay, 2 Sim.& Stu. 79.

(z) See 5 Madd. 14G. (b) Powell v. Ardcrne, 1 Vern.

(a) Bcrkev. Harris, Hardr. 4lC- As to the interpretation

337. And, as late instances of to be put upon this passage,

demurrers for multifariousness, see 8 Ves .52 7 ; and as to general

see Ward v. Cooke, 5 Madd. charge of combination, see sup.

122. Salvidge v. Hyde, 5 Madd. P- 4°> 41 • The proposition in

138. S. C. 1 Jac. R. 153. Tur- the text, however, so far as it

ner v. Doubleday, 6 Madd. 94. may apply to the usual general

Exeter Coll.v. Rowland, Ci Madd. charge of combination, seems

N 3

182

DEMURRERS.

the defendant must be cautious ; for if the answer
goes farther than merely to deny combination, it will
over-rule the demurrer (c). A demurrer of this kind
will hold only where the plaintiff claims several
matters of different natures ; but when one general
right is claimed by the bill, though the defendants
have separate and distinct rights, a demurrer will
not hold (el). As where a person claiming a general
right to the sole fishery of a river, filed a bill against
several persons claiming several rights in the fishery,
as lords of manors, occupiers of lands, or otherwise (e).
For in this case the plaintiff did not claim several
separate and distinct rights, in opposition to several
separate and distinct rights claimed by the de-
fendants ; but he claimed one general and entire
right, though set in opposition to a variety of dis-
tinct rights claimed by the several defendants. So
where a lord of a manor filed a bill against more than
thirty tenants of the manor, freeholders, copyholders,
and leaseholders, who owed rents to the lord, but
had confused the boundaries of their several tene-
ments, praying a commission to ascertain the bounda-
ries; and it was objected at the hearing, that the

now to have been over-ruled,
Brookes v. Lord Whitivorth,
i Madd. R. 86. Sahidge v.
Hyde, 5 Madd. 138. And the
ultimate decision in the latter
case upon appeal, reversing the
former, does not appear to have
had any reference to that pro-
position. S. C. 1 Jac. 151.

(d) See the cases cited
above, pp. 145, 146. And see
Buccle v. Atleo, 2 Vern. 37.
As to cases of infringement of
copyrights and patents, see
Dilly v. Doig, 2 Ves. jun. 486.

(e) Mayor of York v. Pilk-
ington, 1 Atk. 282.

DEMURRERS. 1 83

suit was improper, as it brought before the court
many parties having distinct interests ; it was an-
swered, that the lord claimed one general right, for
the assertion of which it was necessary to ascertain
the several tenements, and a decree was made ac-
cordingly (/).

As the court will not permit the plaintiff to de-
mand by one bill several matters of different natures
against several defendants, so it will not permit a bill
to be brought for part of a matter only ; but to
prevent the splitting of causes, and consequent mul-
tiplicity of suits, will allow a demurrer upon this
ground ( g).

A discovery being compelled upon a bill praying
relief, for the purpose of enabling the plaintiff to
obtain that relief, the discovery is in general inci-
dental to the relief (//), and a demurrer to the relief
consequently extends to the discovery likewise (i).
But as the court entertains a jurisdiction in certain
cases for the mere purpose of compelling a discovery,
without administering any relief, it was formerly
conceived that though a plaintiff prayed by his bill
relief to which he was not entitled, he might yet

(/) Magdalen Coll. against 10 Ves. 544; 3 Meriv. 502.

Athill and others, at the Rolls, It may happen, however, that

2G Nov. 1753. See the distinc- the relief sought may be con-

tions taken in Berke v. Harris, sequential to discovery to which

Hardres, 337. the plaintiffis entitled, in which

( g) 1 Vern. 29. Edgworth v. case, a general demurrer would

Sivift, 4 Bro. P. C. 654, Toml. perhaps be over-ruled. See

ed. See above, p. 146. Brandon v. Sands, 2 Ves.

(h) 1 Sim. & Stu. 93. J. 514; Brandon v. Johnson,

(i) Sec Baker v. Mellish, ib. 517.

N 4

184 DEMURRERS.

show a title to a discovery ; and therefore, thougti
a demurrer might hold to the relief, the defendant
might notwithstanding be compellable to answer to
the discovery, the bill being then considered as in
effect a bill for a discovery merely (k). This, how-
ever, has since been determined otherwise .(/) ; and
where a plaintiff entitled to a discovery added to
his bill a prayer for relief (t/i), a demurrer has been
allowed (;/). And where a defendant had demurred
to the discovery sought by a bill, for want of title in
the plaintiff to require the discovery, but had omitted
to demur to the relief prayed, to which that dis-
covery was merely incidental, it was conceived the
demurrer must, in point of form, be over-ruled ; for
the demurrer, applying to the discovery only, admit-
ted the title to relief, and consequently admitted the
title to the discovery, which was only incidental to

(k) See Fry v. Penn, 2 Bro.
C. C. 280.

(1) See Price v. James, 2 Bro.

C. C. 319-

(m) It is presumed, that in
order to the defendant being
thus able by demurrer wholly
to protect himself against the
interference of the court, it
must appear from the manner
in which the plaintiff states his
case, that he seeks the discovery
as incidental to the relief. See
cases in the next note.

(n) Collis v. Sivayne, 4 Bro.
C. C. 480. Loker v. Rolle,
3 Ves. 4. Ryvcs v. Pyxes, 3

Ves. 343. 6 Ves. 63. 6 Ves. 680.
8 Ves 3. Gordon v. Simpkin-
son, 11 Ves. 509. 17 Ves. 216.
1 Ves. & Bea. 539. 2 Ves. &
Bea. 328. Jones v. Jones, 3
Meriv. 161. 3 Meriv. 502.
This may probably have the
effect of compelling a plaintiff,
in a doubtful case, to frame
his bill for a discovery only in
the first instance; and, having
obtained it, by amending his
bill to try the question whether
he is also entitled to relief;
which was formerly a frequent
practice, and possibly a greater
inconvenience.

PEMUHHERS. l8$

the relief (0). But though a plaintiff may be entitled
to the relief he prays, there may yet be reasons to
induce a court of equity to forbear compelling a dis-
covery (p).

It remains therefore to consider the objections to
a bill which are causes of demurrer to discovery only.
These are, I. That the case made by the bill is not
such in which a court of equity assumes a jurisdic-
tion to compel a discovery : II. That the plaintiff has
no interest in the subject, or no interest which enti-
tles him to call on the defendant for a discovery :
III. That the defendant has no interest in the subject
1 to entitle the plaintiff to institute a suit against him
even for the purpose of discovery : IV. Although
both plaintiff and defendant may have an interest
in the subject, yet that there is not that privity of
title between them which gives the plaintiff a right
to the discovery required by his bill : V. That the
discovery if obtained cannot be material : and, VI.
That the situation of the defendant renders it im-
proper for a court of equity to compel a discovery.

I. Where a bill prays relief the discovery if
material to the relief being incidental to it, a plain-
tiff showing a title to relief also shows a case in
which a court of equity will compel discovery,
unless some circumstance in the situation of the

(o) Morgan v. Harris, in be instances in which a defend-

Ch. 31, Oct. 1786, reported ant, although he should think

2 Bro. C. C. 121. Waring v. proper to give the discovery,

Mackreth, Forrest. 129. may yet demur to the relief.

(p) A plaintiff may be en- 2 Atk. 157. Hodgkin v. Long-
titled to relief in equity, inde- den, 8 Ves. 2. Todd v. Gee,
pendently of the discovery, 17VCS. 273.
1 Swanst. 294. And there may

1 86 DEMURRERS.

defendant renders it improper. But where the bill
is a bill of discovery merely, it is necessary for the
plaintiff to show by his bill a case in which a court
of equity will assume a jurisdiction for the mere
purpose of compelling a discovery. This jurisdic-
tion is exercised to assist the administration of justice
in the prosecution or defence of some other suit, either
in the court itself or in some other court (q). Where
the object of a bill is to obtain a discovery to aid the
prosecution or defence of a suit in the court itself,
as the court has already jurisdiction of the subject,
to state the suit depending is sufficient to give the
court jurisdiction upon the bill of discovery. But
if a bill is brought to aid, by a discovery, the prose-
cution or defence of any proceeding not merely civil
in any other court, as an indictment or information,
a court of equity will not exercise its jurisdiction to
compel a discovery, and the defendant may demur (r).
And in the case of suits merely civil in a court of
ordinary jurisdiction, if that court can itself compel
the discovery required, a court of equity will not in-
terfere (s). Therefore, where a bill was filed for a
discovery of the value of the respective real and per-
sonal estates of the inhabitants of a parish in which
a church rate had been assessed, and of the applica-

(q) See Moodalyv.Moreton, against Del Ris and Vallego>

Dick. 652. S.C. 1 Bro. C. C. in Chan. 11th July 1769.

469. Bishop of London v. (r) 2 Ves. 398 ; and see

Fytche, 1 Bro. C. C. 96. Car- Thorpe v. Macauley, 5 Madd.

dale v. Watkins, 5 Madd. 18. 218. Shacked v. Macaulay>

A discovery has been compelled 2 Sim. & Stu. 79.

to aid the jurisdiction of a fo- (s) 1 Atk. 288. 1 Vez. 205.

reign court, Crowe and others Anon. 2 Vez. 451.

DEMURRERS. iSj

tion of the money collected, a demurrer was allowed;
because the ecclesiastical court, to which the ordinary-
jurisdiction belonged, was capable of compelling the
discovery (t).

II. A bill must show an interest in the plaintiff
in the subject to which the required discovery re-
lates^), and such an interest as entitles him to call
on the defendant for the discovery. Therefore where
a plaintiff filed a bill for a discovery merely, to sup-
port an action, which he alleged by his bill he in-
tended to commence in a court of common law, al-
though by this allegation he brought his case within
the jurisdiction of a court of equity to compel a dis-
covery, yet the court being of opinion that the case
stated by the bill was not such as would support an
action, a demurrer was allowed (V) ; for unless the
plaintiff had a title to recover in an action at law,
supposing his case to be true, he had no title to the
assistance of a court of equity to obtain from the
confession of the defendant evidence of the truth of
the case (j/). And upon a bill filed by a creditor,
alleging that he had obtained judgment against his
debtor, and that the defendant to deprive him of
the benefit of his judgment had got into his hands
goods of the debtor under pretence of a debt due

(t) Dunn v. Coates, l Atk. (x) Debbieg and Lord Howe

288. in Chan. Hil. 1 782 ; cited 3 Bro.

(u) Ramerex. Rawlins, Rep. C.C.i 55. Wallis v. Duke of

Temp. Finch. 36. Newman v. Portland, 3 Ves. 494. Lord

Holder, ib. 44; and sec 2 Vez. Kensington v. Mansell, 13 Ves.

247. Northlcigh v. Luscombc, jun. 240.

Amb\.6i'2,andfVrigktx.Plum- (//) See The Mayor of Lon-

trce, 3Madd. 481. don v. Levi/, 8 Ves. 398.

1 88 DEMURRERS,

to himself, and praying a discovery of the goods ;
the defendant demurred, because the plaintiff had not
alleged that he had sued out execution, and because
until he had so done the goods were not bound by
the judgment, and consequently the plaintiff had
no title to the discovery ; and the demurrer was
allowed (3/).

III. Unless a defendant has some interest in the
subject he may be examined as a witness, and there-
fore cannot in general be compelled to answer a bill
for a discovery (V) ; for such a bill can only be
to gain evidence, and the answer of the defendant
cannot be read against any other person, not even
against another defendant to the same bill (a). But
if the bill states that the defendant has or claims an
interest, a demurrer, which admits the bill to be true,
of course will not hold (/>), though the defendant has
no interest; and he can then only avoid answering the
bill by plea or disclaimer. There seems to be an
exception to the rule in the case of a corporation ;
for as a corporation can answer no otherwise than
under their common seal, and therefore, though they
answer falsely, there is no remedy against them for
perjury, it has been usual, where a discovery of en-
tries in the books of the corporation, or of any act
done by the corporation, has been necessary, to make

(y) Angell v. Draper, 1 Vern. note (e). Fenton v. Hughes,
399. But see Taylor \. Hill, 7 Ves. 287. 14 Ves. 252. Hoiv

1 Eq. Ca. Ab. 132. v. Best, 5 Madd. 19.

(z) Steward v. E. I. Comp. (a) 2 Vern. 380. 3 P. Wins.

2Vern-38o. Dineleyv.Dinelcy, 311, and ib. note (/?)•

2 Atk. 394. Plummer v. May, (b) l Vez. 426.
1 Vez. 426. 1 Ves. jun. 294,

DEMURRERS- 189

their secretary or book-keeper or other officer a
party (c) j and a demurrer because the bill showed
no claim of interest in the defendant has been in
such case overruled (d). So where bills have been
filed to impeach deeds on the ground of fraud,
attornies who have prepared the deeds, and other
persons concerned in obtaining them, have been
frequently made defendants, as parties to the fraud
complained of, for the purpose of obtaining a full
discovery ; and no case appears in the books of a
demurrer by such a party because he had no claim
of interest in the matter in question by the bill.
Indeed an attorney under such circumstances, being
brought as a party to the suit to a hearing, has been
ordered to pay costs (e) ; apparently on the same
ground as costs were awarded against arbi-
trators in the cases of their misconduct before
noticed (/).

IV. Although both plaintiff and defendant may
have an interest in the subject to which the disco-
very required is supposed to relate, yet there may
not be that privity of title between them which can
give the plaintiff a right to the discovery. Thus
where a bill was filed by a person claiming to be
lord of a manor against another person also claim-
ing to be lord of the same manor, and praying,
amongst other things, a discovery in what manner

(rf) Wych v. Meal, 3 P.Wms. 324. 1 Sch. & Lefr. 227. Fen-

310. 7"Ves. jun. 289. i4.Ves. uoickw. Reed, 1 Meriv. 114.

i^l.etseq. Gibbons v. Waterloo r f\ Vid. sup. p. 1G1.
Bridge Cow p. 5 Pri. Ex. R. 491 .

190 DEMURRERS.

the defendant derived title to the manor, the de-
fendant demurred, because the plaintiff had shown
no right to the discovery, and the demurrer was
allowed (g).

So where a bill was filed by a person claiming
under a grant from the duchy of Lancaster, to be
bailiff of a liberty within the duchy, with a right
to all waifs, estrays, and other casualties within the
liberty, and all fees and perquisites respecting the
same, against the owner of an inn in the liberty, and
his tenants, alleging that the inn-yard had been used
as a common pound within the liberty for all waifs
and strays and casualties ; and that the tenant, under
demise from the owner, had seized and taken all
waifs and strays and other casualties ; and received
the fees and perquisites thereon ; and required the
owner to discover how he derived title thereto, and
what leases or demises he had made thereof; a de-
murrer to the discovery was allowed (h). In general,
where the title of the defendant is not in privity, but
inconsistent with the title made by the plaintiff, the

(g) Adderley and Sparrow, were cited ; and Lord Lough-

in Chan. Hil. 1779. borough mentioned a case of

(h) Ritson v. Sir John Dan- Sir William Wake and Conyers

vers, in Duchy C of Lancaster, before Lord Northington. See

28 Oct. 1787, by the Chancel- also Corporation of Dartmouth

lor, assisted by Lord Lough- against Seale in Chan. 1 8 Dec.

borough and Mr. JusticeWilson. 1717. rep. 1 Cox. R. 416. See

The cases of Sparrow v. Ad* also Ritson v. Sir John Danvers,

derley, Hungerford v . Gore- 24 Nov. 1 790, on demurrer to

ing, a Vern. 38, Stapleton v. an amended bill, Baron Thom-

Sherrard, 1 Vern. 212, Sher- son assisting the Chancellor;

bone v. Clerk, 1 Vern. 273, and and Att. Gen. v. Sir JohnDan-

Welby and D. of Rutland, 2 vers, 25 Jan. 1792. Grose J.

Brown P. C. 39 Toml. Ed. and Thomson B. assisting.

DEMURRERS. 191

defendant is not bound to discover the evidence of
the title under which he claims (i). And therefore,
on a bill filed by an heir ex parte materna against
a general devisee and executor, who had completed
by conveyance to himself a purchase of a real estate
contracted for by the testator after the date of his
will, alleging that there was no heir ex parte paterna,
but that the devisee set up a title under a release
from his father as heir ex parte paterna of the tes-
tator, and praying a conveyance to the plaintiff,
and seeking a discovery in what manner the father
claimed to be heir ex parte paterna, and the parti-
culars of the pedigree, under which he claimed,
a demurrer to that discovery was allowed (k).

V. As the object of the court in compelling a dis-
covery is either to enable itself or some other court
to decide on matters in dispute between the parties,
the discovery sought must be material, either to the
relief prayed by the bill, or to some other suit ac-
tually instituted, or capable of being instituted. If
therefore the plaintiff does not show by his bill such
a case as renders the discovery which he seeks
material to the relief, if he prays relief, or does not
show a title to sue the defendant in some other
court (/), or that he is actually involved in litigation

(i) Stroud v. Deacon, 1 Vez.
37. Buden v. Dore, 2 Vez. 445.
Sampson v. Swetteiiham,^ Madd.
16. Tyler v. Drayton, 2 Sim.
& Stu. 309, and the cases
therein cited ; and see Cham-
berlain v. Knapp, 1 Atk. 52.

(k) Ivie v. Kekexvich in Ch.

27 July, 1795, rep. 2 Ves.
J. 679.

(I) Debbieg and Lord Howe,
in Chan. Hil. 1782 ; cited 3 Bro.
C. C. 155. Wallis v. Duke of
Portland, 3 Ves. 494. The
Mayor of London v. Levy,
8 Ves. 398. Lord Kensington,
v. Mansell, 13 Ves. jun. 240.

1Q2 DEMURRERS,

with the defendant, or liable to be so, and does Hot
also show that the discovery which he prays is ma-
terial to enable him to support or defend a suit, he
shows no title to the discovery, and consequently
a demurrer will hold (?ti). Therefore where a bill
filed by a mortgagor against a mortgagee to redeem
sought a discovery, whether the mortgagee was a
trustee, a demurrer to the discovery was allowed.
For as there was no trust declared upon the mort-
gage, it was not material to the relief prayed whe-
ther there was any trust reposed in the defendant
or not (ri). So where a bill was filed by a lord
of a borough, praying, amongst other things, a dis-
covery, whether a person applying to be admitted
tenant was a trustee, the defendant demurred (0),
it being wholly immaterial to the plaintiff's case
whether the defendant was a trustee or not. And
where a bill was brought for a real estate, and
sought discovery of proceedings in the ecclesiastical
court upon a grant of administration, the defendant
demurred to that discovery, the proceedings in the
ecclesiastical court being immaterial to the plain-
tiff's case (p). Again, where a bill, to establish
an agreement for a separate maintenance for the
defendant's wife, prayed a discovery of ill treat-
ment of the wife, to make her recede from the
agreement, the defendant demurred to the dis-

(m) See cases cited last page, (n) Harvey v. Morris, Rep.

note (1); and see 1 Vez. 249, Tem. Finch. 214,

1 Bro. C. C. 97, and Askatn . T , „_ ■

v. Thompson, 4 Pri. Exch. R. <°) Lord Montague v. Dud-

330. Cardale v. Watkins, man, 2 Vez. 396.

5 Madd. 19. (p) 2 Atk. 388.

DEMURRERS. 1 y J

covery (y) which could not be material to the case
made by the bill. But in general, if it can be sup-
posed that the discovery may in any way be material
to the plaintiff in the support or defence of any suit,
the defendant will be compelled to make it(r). Thus
where a bishop filed a bill against the patron of a
living and a clerk presented by him, to discover
whether the clerk had given a bond of resignation,
and the patron demurred, because the discovery either
was such as might subject him to penalties and for-
feitures, or it was immaterial to the plaintiff, the
demurrer was over-ruled ; the court declaring a clear
opinion that the bond was not simoniacal, but con-
ceiving that the discovery might be material to sup-
port a defence to a quart impedit, upon this ground,
" that the bond put the clerk under the power of
" the patron, in derogation of the rights of the or-
" dinary (*)."

VI. The situation of a defendant may render it
improper for a court of equity to compel a discovery,
either because the discovery may subject the defend-

(q) Hincks v. Nelthrope, against the patron, and he con-

l Vern. 204. sequently lost his presentation*

(r) 1 Vez. 205 ; and see Perhaps, therefore, the over-

Richards v. Jackson, 18 Ves. ruling the demurrer was in con-

472. 1 Madd. R. 192. Alt. Gen. tradiction to the principles on

v. Berkeley, 2 Jac. & W. 291. which courts of equity have

(s) Bishop of London, against proceeded in the cases con-

Ffytche, in Chan. Trin. 1781. sidered under the next head.

In consequence of this decision See the case reported in 1 Bro.

an answer was put in admitting C. C. 96, and Cunningham's

the bond ; and a quare impedit Law of Simony. See also Grey

being brought, it was finally v. Hesketh, Ambl. 268.
determined in the house of lords

I94 DEMURRERS.

ant to pains or penalties, or to some forfeiture, or
something in the nature of a forfeiture ; or it may-
hazard his title in a case where in conscience he has
at least an equal right with the person requiring the
discovery, though that right may not be clothed with
a perfect legal title (t).

It is a general rule, that no one is bound to
answer so as to subject himself to punishment, in
whatever manner that punishment may arise, or
whatever may be the nature of the punishment (u).
If therefore a bill requires an answer which may (#)
subject the defendant to any pains or penalties, he
may demur to so much of the bill (?/). As if a bill
charges any thing which, if confessed by the answer,
would subject the defendant to any criminal pro-
secution (z), or to any particular penalties, as an
usurious contract (a), maintenance (b\ champerty (c),
simony (d). And in such cases, if the defendant is

(t) See Ivy v. Kekevoich, 2 Campbel, l Vez. 246. Chet-

Ves. J.679. Lord Shaftesbury toynd v. Lindon, 2 Vez. 451.

v. Arroivsmith, 4 Ves. 66. Cartivright v Green, 8 Ves.

13 Ves. 251. 15 Ves. 378. 405. 14 Ves. 65.

Wright v. Plumtrce, 3 Madd. (a) Fenton v. Blomer, Tothill

481. Gleggv. Legh,^. Madd. 193. 135. Earl of Suffolk v. Green,

(u) 2 Vez. 245, and the au- 1 Atkyns 450. 2 Atk. 393.

thorities referred to in note, 22 Vin. Ab.Usury,Q.4. Whit-

1 £q. Ca. Ab. 131, 11 Ves. more v. Francis, 8 Pri. Ex. R.

525, 2 Swanst. 214. 616.

(x) 1 Atk. 539, 1 Swanst. 305. {b) Penrice v. Parker, Rep.

(y) See Billing v. Flight, 1 Temp. Finch. 75. Sharp v.

Madd. R. 230. And it may be Carter, 3 P.Wms. 375. Wallisv.

observed, that such a demurrer Duke of Portland, 3 Ves. 494.

will not be regarded as any ad- (c) See 2 Sim. & Stu. 252.

mission of the truth of the (d) Att. Gen. v. Sudell, Prec.

charge; 16 Ves. 69. inCh. 214. lMeriv. 401. But

(2) East India Company v. see p. 193, note is)

DEMURRERS. lgt$

not obliged to answer the facts he need not answer
the circumstances, though they have not such an
immediate tendency to criminate (d).

If the plaintiff is alone entitled to the penalties,
and expressly waves them by his bill, the defendant
shall be compelled to make the discovery ; for it can
no longer subject him to a penalty (e). As if a rector,
or impropriator or vicar, files a bill for tithes, he may
wave the penalty of the treble value (/), to which he
is entitled by the statute of 2 & 3 Edward VI. and
thus become entitled to a discovery of the tithes
subtracted. And though a discovery may subject a
defendant to penalties to which the plaintiff is not
entitled, and which he consequently cannot wave,
yet if the defendant has expressly covenanted not to
plead or demur to the discovery sought, which is the
common case with respect to servants of the East-
India company, he shall be compelled to answer (g).
Where, too, a person by his own agreement subjects
himself to a payment in the nature of a penalty if he
does a particular act, a demurrer to discovery of that
act will not hold (h). Thus where a lessee covenanted
not to dig loam, clay, sand or gravel, except for the
purpose of building on the land demised, with a
proviso that if he should dig any of those articles for

(d) 1 Vez. 247, 248. 19 Ves. Bumsted, 1 Eq. Ca. Ab. 77.
227, 228. E. I. Comp, v. Atkins, 2 Vez.

(e) Lord Uxbridge v. Stave- 108. And see Paxton v.
land, 1 Vez. 56. And see 1 Douglas, 16 Ves. 239.

Vern. 1 29. Bullock v. Richard- (h) See Morse v. Buckworth ,

son, 1 1 Ves. 373. 2 Vern. 443. E. I. Comp. v.

(/) Anon. 1 Vern. Go. Neave, 5 Ves. 173.

(g) South Sea Comp. v.

O 2

lgG DEMURRERS.

any other purpose, he should pay to the lessor twenty
shillings a cart-load, and he afterwards dug great
quantities of each article ; upon a bill for discovery
of the quantities, waving any advantage of possible
forfeiture of the term ; a demurrer of the lessee, be-
cause the discovery might subject him to a payment
byway of penalty, was over-ruled (g).

And a party shall not protect himself against relief
in a court of equity, by alleging that if he answers
the bill filed against him, he must subject himself to
the consequences of a supposed crime, though the
court will not force him by his own oath to subject
himself to punishment; and therefore in the case of
a bill to inquire into the validity of deeds upon a
suggestion of forgery, the court has entertained juris-
diction of the cause ; and though it has not obliged
the party to a discovery of any fact which might tend
to show him guilty of the crime, has directed an
issue to try whether the deeds were forged (k).

It should seem that a demurrer will also hold to
any discovery which may tend to show the defendant
guilty of any moral turpitude, as the birth of a child
out of wedlock (i). But a mother has been com-
pelled to discover where her child was born, though
it might tend to show the child to be an alien (k) ;
for that was not a discovery of any illegal act, or

(g) Richards against Cole, (i) Parker, 163. 2 Vez. 451.

or Brodrepp against Cole, in Franco v. Bolton, 3 Ves. 368.

Chan. Hil. vacation 1779. King v. Burr, 3 Meriv. 698.

(h) 2 Vez. 246. See also (A) Att. Gen. v. Duples&is,

1 Eq. Ca. Ab. 131, p. 11. Att. 2 Vez. 287, ib. 494.
Gen.v. Sudell. Free. in Cha, 214.

DEMURRERS. 1 97

of any act which could affect the character of the
defendant (/).

A demurrer will likewise hold to a bill requiring a
discovery which may subject the defendant to any
forfeiture (m) of interest : as if a bill is brought to
discover whether a lease has been assigned without
licence (ri) ; or whether a defendant, entitled during
widowhood (o), or liable to forfeiture of a legacy in
case of marriage without consent (p), is married ; or
to discover any matter which may subject a defendant
entitled to any office or franchise to a quo warranto (jj).
But if the plaintiff is alone entitled to the benefit of
the forfeiture, and expressly waves (r) it by the bill,
as in the case of a bill for discovery of waste (/), a
demurrer will not hold ; for the waver gives the
court a ground of equity to award an injunction, if
the plaintiff sues for the forfeiture (t). If the dis-
covery sought is of a matter which would show the
defendant incapable of having any interest or title ;
as whether a person claiming a real estate under
a devise was an alien, and consequently incapable of
taking by purchase (u) ; a demurrer will not hold.
And where a devise over of an estate in case of
marriage was considered as a conditional limitation

(I) l Meriv. 400. (y) 1 Eq. Ca. Ab. 131, p. 10.

(???) Tothill, 69. (r) 1 Vez. 56. See above,

(n) Lord Uxbridge v. Stave- p. 195, note {e).

land, 1 Vez. 56. 0) si Atk. 393. Att. Gen. v.

(0) Monnins v. Monnins, Vincent, 2 Eq, Ca. Ab. 378.

2 Chan. Rep. 68. S. C. cited Com. R. 664.

(p) Chauncey v. Tahourden, (t) 1 Vez. 56.

2 Atk. 392. Chancey v. Fen- (w) Att. Gen. v. Duplcssis,

houlet, 2 Vez. 265. Parker, 144.

I98 DEMURRERS.

and not as a forfeiture, a demurrer to a bill for a
discovery of marriage was over-ruled (V).

A defendant may in the same manner demur to a
discovery which may subject him to any thing in the
nature of a forfeiture (y) ; as where a discovery was
sought whether the defendant was educated in the
popish religion, by which he might have incurred the
incapacities in the statute 11 and 12 Will. III. (z) ;
or whether a clergyman was presented to a second
living, which avoided the first (a).

But where a person against whom a commission of
bankrupt had issued, had brought actions against the
assignees under the commission, disputing its validity,
and particularly insisting that he had not been a
trader within the meaning of the bankrupt laws, and
in those actions the validity of the commission had
been established ; and the assignees filed a bill against
him, stating these facts, and that being harassed by
these actions, and threatened with other actions, they
were not able to distribute the effects under the com-
mission, and therefore praying a perpetual injunction
to restrain further actions, and requiring a discovery
amongst other things, of acts of trading, a demurrer
to that discovery was over-ruled (ft).

(x) 2 Atk. 393. Lucas v.
Evans, 3 Atk. 260. 2 Vez. 265.

{y) 3 Atk. 457.

(z) Jones v. Meredith, Com.
661 ; and see ib. 664. Smith v.
Read, 3 Bac. Ab. 800. 1 Atk.
527. 2 Vez. 394. The 18
Geo. 3, c. 60, the 31 Geo. 3,
c. 32, and the 43 Geo. 3, 03 9,

do not entirely remove these
incapacities.

(a) Boteler v. Allington,
3 Atk. 453.

(b) Chambers v. Thomson,

1 Nov. 1793. rep. 4 Bro. C. C.
434, affirmed on rehearing,
March 1794. See Protector and
Lord Lumley, Hardres 22. See
also Selby v. Crew, 1 Anstr. 504.

DEMURRERS. 1Q$

If a defendant has in conscience a right equal to
that claimed by a person filing a bill against him,
though not clothed with a perfect legal title, this cir-
cumstance in the situation of the defendant renders
it improper for a court of equity to compel him to
make any discovery which may hazard his title ; and
if the matter appears clearly on the face of the bill, a
demurrer will hold (c). The most obvious case is that of
a purchaser for a valuable consideration without no-
tice of the plaintiff's claim (</). Upon the same principle
a jointress may in many cases demur to a bill filed
against her for a discovery of her jointure deed, if
the plaintiff is not capable of confirming, or the bill
does not offer to confirm, the jointure, and the facts
appear sufficiently on the face of the bill ; though
ordinarily advantage is taken of this defence by way
of plea (e).

This arises from that singularity in the jurisprudence
of this country, produced by the establishment of the
extraordinary jurisdiction of courts of equity distinct
from the ordinary jurisdictions noticed in a former page,
and necessarily creating a distinction between legal
and equitable rights (/). Where the courts of equity
are called upon to administer justice upon grounds of
equity against a legal title, they allow a superior
strength to the legal title when the rights of the
parties are in conscience equal ; and where a legal
title may be enforced in a court of ordinary jurisdic-

(d) 2 Ves. J. 458. Sweet 661.

v. Southcote, 2 Bro. C. C. 66. {/) '2 Vez. 573, 574-

O 4

200 DEMURRERS.

tion to the prejudice of an equitable title, the courts
of equity will refuse assistance to the legal against
the equitable title where the rights in conscience are
equal.

If the grounds on which a defendant might demur
to a particular discovery appear clearly on the face
of the bill, and the defendant does not demur to the
discovery, but, answering the rest of the bill, declines
answering to so much, the court will not compel him
to make the discovery (g*). But in general, unless
it appears clearly by the bill that the plaintiff is not
entitled to the discovery he requires, or that the
defendant ought not to be compelled to make it,
a demurrer to the discovery will not hold ; and the
defendant, unless he can protect himself by plea,
must answer.

Where the sole object of a bill is to obtain a dis-
covery, some grounds of demurrer, which if the bill
prayed relief would extend to discovery as well as
to the relief, will not hold. Thus a demurrer to
a bill for a discovery merely will not hold for want
of parties, for the plaintiff seeks no decree ; nor, in
general, for want of equity in the plaintiff's case for
the same reason ; nor because the bill is brought
for the discovery of part of a matter, for that is
merely a demurrer because the discovery would be
insufficient. But it should seem a demurrer would .
hold to a bill for discovery of several distinct matters
against several distinct defendants. For though a
defendant is always eventually paid his costs upon

(g) See Wrottesleyv. Bendish,^Y. Wms. 235. 1 Meriv. 401.
See below, Chap. 2. sect. 2. part 3.

DEMUtlllfcES. 20!

a bill of discovery if both parties live, and the plain-
tiff by amendment of his bill does not extend it to
pray relief, yet the court ought not to permit the
defendant to be put to any unnecessary expense, as
either the plaintiff or defendant may die pending
the suit (g).

After an answer to a bill of discovery, when time
for excepting to it as insufficient is expired, the de-
fendant may apply for costs as a matter of course (Ji),
unless the plaintiff shall in the mean time have
obtained an order to amend his bill ; which may be
done either to obtain a fuller discovery, or if the
case appearing on the answer will warrant the pro-
ceeding, by adding to the bill a prayer for relief (i).

Demurrers have hitherto been noticed with refer-
ence only to original bills. As every other kind of
bill is a consequence of an original bill, many of the
causes of demurrer which will apply to an original
bill will also apply to every other kind ; but the
peculiar form and object of each kind afford distinct
causes of demurrer to each. Thus if a bill of revivor
does not show a sufficient ground for reviving the
suit (k), or any part of it (/), either by or against (7;/)

(g) See next page and notes SeeBaring v. Prinsep, 1 Madd-

(p) and (q). R- 526.

(h) See 4 Ves. 746. Hetvart (»') °n this subject see But-

v. Semple, 5 Ves. 86. Noble tenvorth v. Bailey, i5 Ves. 35S.

v. Garland, 1 Madd. 344- But, <*> Humphreys v. Incledon

. ... Dick. 38. Harris v. Pollard,

it seems that the time within „ p yyms r>4g

which the exceptions must be (/) x Eq> Ca_ Ab> % ^

filed, has latterly, under special (7K) University College v.

circumstances, been extended, Foxcrqfl, 2 Ch. Rep. 244-

202 DEMURRERS.

the person by or against whom it is brought, the
defendant may by demurrer show cause against the
revival (w). Indeed though the defendant does not
demur, yet if the plaintiff does not show a title to
revive, he will take nothing by his suit at the hear-
ing (0). A demurrer will also in many cases hold
to a bill of revivor brought singly for costs (p) ; the
court in general not permitting a suit to be revived
for that purpose only, except where the costs have
been actually taxed before the abatement hap-
pened (jj).

If a supplemental bill is brought upon matter aris-
ing before the filing of the original bill, where the
suit is in that stage of proceeding that the bill may
be amended, the defendant may demur (r). If a
bill is brought as a supplemental bill upon matter
arising subsequent to the time of filing the original
bill, against a person who claims no interest arising
out of the matters in litigation by the former bill, the
defendant to the bill thus brought as a supplemental
bill may also demur ; especially if the bill prays that
he may answer the matters charged in the former
bill. These, however, are grounds of demurrer arising

(n) 3 P. Wms. 348. 2 Meriv. 113. 3 Madcl. 377.

(o) 3 P. Wms. 348. {r) Baldwin v. Mackotun, 3

(p) 2 Eq. Ca. Ab.3. 2 Ves. Atk. 817, 2 Madd. R. 387;

J. 315. 10 Ves. 572. Japp or, if the matter should have

v. Geering, 5 Madd. 375. arisen subsequently, but be

{q) Hall v. Smith, 1 Bro. immaterial, the defendant may

C C. 438. Morgan v. Scuda- also demur. See Milner v.

more, 2 Ves. J. 313. S. C. 3 Lord Hareivood, 17 Ves. 144.

Ves. 195. Lototen v. Mayor Adams v. Doivding, 2 Madd.

and Commonalty of Colchester, R. 53. Ibid 388.

DEMURRERS. 20$

rather from the plaintiff's having mistaken his re-
medy, than from his being without remedy.

A cross-bill having nothing in its nature different
from an original bill, with respect to which demurrers
in general have been considered, except that it is
occasioned by a former bill, there seems no cause of
demurrer to such a bill which will not equally hold
to an original bill. And a demurrer for want of equity
will not hold to a cross-bill filed by a defendant in a
suit against the plaintiff in the same suit touching
the same matter. For being drawn into the court
by the plaintiff in the original bill, he may avail
himself of the assistance of the court, without being
put to show a ground of equity to support its juris-
diction^), a cross-bill being generally considered as
a defence (t).

A bill filed by the direction of the court for the
purpose of obtaining its decree touching some matter
not in issue by a former bill, or not in issue between
the proper parties, does not seem liable to any pecu-
liar cause of demurrer. Indeed, being exhibited by
order of the court upon hearing of another cause,
there is little probability that such a bill should be
liable, in substance to any demurrer.

The constant defence to a bill of review for error
apparent upon a decree has been said to be by plea
of the decree, and demurrer against opening the en-
rolment. (»). There seems, however, no necessity for

(s) Doble v. Potman, Har- 392. Smith v. Turner, 1 Vcm.

dres, 160. 1 Eden. It. 190. 273. 2 Atk. 534. See also

(t) 3 Atkyns, 812. 3 Atkyns, 627. O'Brien v.

(u) Dancer v. Eveti, 1 Vern. O'Connor, 2 Ball & B. 14C.

204 DRMURRERS.

pleading the decree, if fairly stated in the bill : the
books of practice contain the forms of a demurrer
only to such a bill, and there are cases accord-
ingly (.r).

On argument of a demurrer to a bill of review
where several errors in the decree have been assigned,
if the plaintiff should prevail only in one, the de-
murrer must be over-ruled, as one error will be suffi-
cient to open the enrolment ; and on argument of a
demurrer to a bill of review for error apparent in
the decree, the court has ordered the defendant to
answer, saving the benefit of the demurrer to the
hearing, and on the hearing has finally allowed the

demurrer (?/).

Where the decree has been pronounced above
twenty years, the length of time is good cause of
demurrer (z).

Where any matter beyond the decree is to be of-
fered against opening the enrolment, that matter
must be pleaded (a) ; and it has been said that length

(x) Slingsby v. Hale, 1 Ca. the demurrer was allowed, and

in Cha. 122. l P. Wms. 139; the order affirmed by the Lords ;

and see Jones v. Kenrick, 5 Bro. and see Denny v. Filmore,

P. C. 244, and ib. 248; in 1 Vern. 135. S. C. 2 Freeman,

which case the defendant ap- 172.

pears to have pleaded the de- (y) Denny v. Filmer, 2 Free-

cree enrolled in bar of the first man, 172.
bill which did not state the de- (z) Edwards v. Carroll, 2 Bro.

cree, but to have demurred P. C. 98, TomL ed. ; and see

alone to the bill of review. Smythe v. Clay, 4 Bro. C. C.

And in Helbut and Philpot, in 539, n. S. C. 1 Bro. P. C. 453,

the house of Lords, 11 March Toml. Ed. S. C. Ambl. 645.
1725, the defendant demurred (a) See Hartwell v. Toxim-

alonc to a bill of review, and send, 2 Bro. P. C. 107. Toml. Ed.

DEMURRERS. 205

of time must be pleaded to a bill of review, and that
otherwise the plaintiff will not have the benefit of
exceptions, as infancy, coverture, or the like (a). A
bill of review upon the discovery of new matter,
and a supplemental bill of the same nature, being
exhibited only by leave of the court, the ground
of the bill is generally well considered before it
is brought ; and therefore in point of substance
it can rarely be liable to a demurrer. But if
brought upon new matter, and the defendant
should think that matter not relevant, probably he
might take advantage of it by way of demurrer,
although the relevancy, ought to be considered at
the time leave is given to bring the bill (Z»). Bills
in the nature of bills of review do not appear
subject to any peculiar cause of demurrer, unless the
decree sought to be reversed does not affect the in-
terest of the person filing the bill. If upon argument
of a demurrer to a bill of review the demurrer is

(a) Gregor v. Molesivorth, mitted by the answer. If length
2 Vez. 109. See, however, of time must be pleaded, yet
Sherrington v. Smith, 2 Bro. the plaintiff can have no benefit
P. C. 62, Toml. ed. Gorman of exception not stated in the
v. M ' Cullock, 5Bro. P. C. 597, bill, unless it should be required
Toml. ed. See 3 P. Wms.287, that the plea should be sup-
note B, and post. p. 212, as to ported by averments negativing
a demurrer on the ground of every possible exception, to
length of time ; and it should which there seem to be great
seem that if the plaintiff can objections,
allege any exception to a posi- (b) 2 Atkyns, 40. See what
tive rule, he ought to do so by is stated in regard to a mere
his bill. In Lytton v. Lytton, supplemental bill, 17 Ves. 148,
4 Bro. C. C. 441, the exception 149. 2 Madd. R. 61 . And see
was stated in the bill, and ad- above 202, note (r).

206 DEMURRERS.

allowed, the order allowing it, being enrolled, is an
effectual bar to another bill of review (c).

If upon the face of a bill to carry a decree into
execution the plaintiff appears to have no right to
the benefit of the decree, the defendant may demur.

Bills in the nature of bills of revivor and supple-
ment are liable to objections of the same sort as may
be made to the kinds of bills of whose nature they
partake.

In addition to the several particular causes of de-
murrer applicable to particular kinds of bills, it may
be observed that any irregularity in the frame of a
bill of any sort may be taken advantage of by de-
murrer. Thus if a bill is brought contrary to the
usual course of the court, a demurrer will hold (d).
As where after a decree directing encumbrances to
be paid according to priority, the plaintiff, a cre-
ditor, obtained an assignment of an old mortgage,
and filed a bill to have the advantage it would give
him by way of priority over the demands of some of
the defendants (e). This was a bill to vary a decree,
and yet was neither a bill of review, nor a bill in
nature of a bill of review, which are the only kinds
of bills which can be brought to affect or alter a de-

(c) See Denny v. Filmer, 2 Bunb. 56. Earl of Darling-
Ca.inCha. 133. S. C. 1 Vern. ton v. Pulteney, 3 Ves. 386,
135, and ib. 417. Pitt v. Earl Fletcher v. Tollett, 5 Ves. 3.
qfArglass, ib. 441. Woots v. Ogilvie v. Heme, 13 Ves. 563.
Tucker, 2 Vern. 120. Made v. Duke of Beaufort,

(d) See Worthy v. Birkhead, 1 Russ. R. 349.

3 Atk. 809. S. C. 2 Ves. 571. (e) 3 Atk. 811.

Lady Granville v. Ramsden,

DEMURRERS. 207

cree (/), unless the decree has been obtained by
fraud ( g). So if a supplemental bill is brought
against a person not a party to the original bill,
praying that he may answer the original bill, and
no reason is suggested why he could not be made a
party to the original bill by amendment, he may de-
mur (//). If an irregularity arises in any alteration
of a bill by way of amendment, it may also be
taken advantage of by demurrer. As if a plaintiff
amends his bill, and states a matter arisen subsequent
to the filing of the bill (i), which consequently
ought to be the subject of a supplemental bill, or
bill of revivor. But if a matter arisen subsequent
to the filing of the bill, and properly the subject
of a supplemental bill, is stated by amendment,
and the defendant answers the amended bill, it is
too late to object to the irregularity at the hear-
ing (k). For as the practice of introducing by sup-
plemental bill matter arisen subsequent to the insti-
tution of a suit has been established merely to pre-
serve order in the pleadings, the reason on which
it is founded ceases when all the proceedings to
obtain the judgment of the court have been had
without any inconvenience arising from the irregu-
larity (/).

(/) Argd0 3 Atk. 811. Read (h) Baldwin v. Mackotvn, 3

v. Hambey, 1 Ca. in Cha. 44. Atk. 817.

S. C. 2 Freem. 179. 13 Ves. (/) 1 Atkyns, 291. Pilki/ig-

564. ton v. Wignall, 2 Madd. 240.

(g) Argdo 3 Atk. 811. (k) Belchier against Pearson,

Galley v. Baker, Ca. t. Talb. at the Rolls, 13 July 1782.

199. Manaton v. Molesxuorth, (I) See above, p. 202.
1 Eden. R. 25. 13 Ves. 564.

208 DEMURRERS.

Having thus considered the several grounds of de-
murrer, it may be proper to observe some particulars
with respect to the frame of demurrers, the manner in
which they are offered to the court, and the manner
in which their validity may be determined, or their
consequences avoided.

A demurrer must be signed by counsel (7) ; but is
put in without oath, as it asserts no fact, and relies
merely upon matter apparent upon the face of the
bill (m). It is therefore considered, that the defendant
may, by advice of counsel, upon the sight of the
bill only, be enabled to demur thereto (n) ; and for
this reason it is always made the special condition
of an order giving the defendant time to demur
plead or answer to the plaintiff's bill, that he shall
not demur alone. Whenever, therefore, the defend-
ant has obtained an order for time, and is afterwards
advised to demur, he must also plead to or answer
some part of the bill (o). It has been held, that

(I) See Ord. in Cha. 172. would be considered within the

Ed. Bea. meaning of this term, see

(m) 2 Vez. 247. 1 Madd. Roberts v. Hartley, 1 Bro. C. C.

R. 236. 56. De Minkuitz v. Udney,

(n) Ord. in Cha. 172. Ed. 16 Ves, 355. Barber v. Craw-

Bea. shato, 6 Madd. 284, unless, per-

(0) If the defendant should haps, it were of a description not

apply for time to answer gene- required to be put in upon oath,

rally, it would be presumed see Phillips v. Gibbons, 1 Ves.

that his case does not require & B. 184; and see Anon, 2

the usual indulgence to the ex- P. Wms. 464 ; 3 P. Wms. 8 1 ;

tent mentioned in the text ; and but the defendant would not be

the order would be drawn up allowed to demur alone, Ken-

accordingly, see 10 Ves. 448. rick v. Clayton, 2 Bro. C.C. 214.

1 Ves. & B. 186, and, he S. C. Dick, 685; or even to

would be bound to answer, answer and demur, Taylor v.

10 Ves. 446; but a plea Milner, 10 Ves. 444. Mann

DEMtJRRERSi 200

answering to some fact immaterial to the cause, and
denying combination (0), do not amount to a com-
pliance with the terms of such an order ; and there-
fore, upon motion, a demurrer accompanied by such
an answer has been discharged (p). This rule has
been probably established under a notion that time
is not necessary to determine whether a defendant
may demur to a bill or not, and a supposition that a
demurrer may be filed merely for delay. But whe-
ther a bill may be demurred to is sometimes a sub-
ject of serious and anxious consideration ; and the
preparation of a demurrer may require great atten-
tion, as if it extends in any point too far it must be
over-ruled. Great inconvenience therefore may arise
from a strict adherence to this rule. For it often
happens that a defendant cannot answer any material
part of the bill without over-ruling his demurrer ;
it being held that if a defendant answers to any part of
a bill to which he has demurred he waves the benefit
of the demurrer (q) ; or if he pleads to any part of

v. King, 18 Ves. 297, except ested, must be specific. S7n/th

under peculiar circumstances, v. Snow, 3 Madd. 10.

and upon leave granted by (p) Stephenton v. Gardiner,

the Court, on a special ap- 2 P. Wms. 286. 4 Vin. Abr.442.

plication for that purpose, see Lee v. Pascoe, 1 Bro. C. C. 78 ;

Bruce v. Allen, 1 Madd. R. and see Kennel: v. Clayton,

556. Sherivood v. Clark, 9 Pri. 2 Bro. C. C. 214. S. C. Dick.

Ex. R. 259. O85. Lansdoxvn v. Elderton, 8

(o) As to the necessity of Ves. 526. Tomkinv.Lethbridge>

denying a general charge of 9 Ves. 178. 1 o Ves. 44G, 447,

combination, see ab. p. 40. The 448. 2 Ves. & 13. 123.

charge of combination, in order (q) See Hester v. Weston,

to be material, with the view of 1 Ves. 463. Jones v. Earl of

preventing a demurrer for want Strafford, 3 P. Wms. 79. Aura-

of equity by parties not inter, ham v. Dodgson, 2 Atk. 157.

210 DEMURRERS.

a bill before demurred to the plea will over-rule the
demurrer (r). For the plaintiff may reply to a plea
or answer, and thereupon examine witnesses, and
hear the cause ; but the proper conclusion of a
demurrer is to demand the judgment of the court
whether the defendant ought to answer to so much
of the bill as the demurrer extends to, or not (s).
The condition, that the defendant shall not demur
alone, ought therefore, perhaps, to be considered li-
berally ; and it has been formerly said, that the court
will not incline to discharge a demurrer if the de-
fendant denies combination only where he cannot
answer further without over-ruling his demurrer (f).
Indeed any material answer must in many cases over-
rule the demurrer ; so that giving a defendant time to
demur, plead, or answer, not demurring alone, is often in
effect giving leave to do a thing, but clogging the per-
mission with a condition which makes it nugatory : and
though the rule was first adopted upon a reasonable
ground to prevent unnecessary delay, it may, if
strictly observed, contradict the maxim, that a court
of equity ought not for form sake to do a great in-
justice^). However the modern practice is according
to the original strictness of the rule (a?) ; and it may be
be better, where the case requires it, to relax the rule

(r) Dormer v. Fortescue, 2 in Ch. 9 Nov. 1 738. Sir John

Atk. 282. Dyneley Goodere against Dean

(s) 3 P. Wras. 80. and Chapter of Worcester, in

(t) See Done v. Peacock, Exchequer, 1777. Zee against

3 Atk. 726. See above, Pascoe,'m Chancery, East. 1780.

p. 181, note (b). 1 Bro. Ch. Ca. 77. 8 Ves. 527.

(w) 1 Vez. 247. 10 Ves. 447. See above, pp. 208

(x) Attorney Gen. v. Jenner, & 209, and notes (o), (p), & {q)>

DEMURRERS. 211

upon special application to the court (d1) than to
permit it to be evaded (y). Indeed in some cases an
answer to any part of the bill may over-rule the de-
murrer ; for if the ground of demurrer applies to the
whole bill, the answering to any partis inconsistent (z) ;
and therefore when the ground of demurrer was the
general impropriety of the bill, and that the defendant
ought not therefore to be compelled to answer it, his
answer to an immaterial part, in compliance with
the order for time which he had obtained, over-ruled
his demurrer (a).

As a demurrer relies merely upon matter apparent,
on the face of the bill, so much of the bill as the
demurrer extends to is taken for true (b) ; thus if a
demurrer is to the whole bill the whole (c) is taken for
true ; if it is to any particular discovery, the matter
sought to be discovered, and to which the demurrer
extends, is taken to be as stated in the bill ; and if
the defendant demurs to relief only, the whole case
made by the bill to ground the relief prayed is con-

(x) And this, upon a special (b) 2 Ves. & Bea. 95. 1

ground, the Court will do. Sec Madd. R. 565.

above p. 209, note (n). (c) That is, every thing ne-

(y) It seems that very little cessary to support the plaintiff's

by way of answer will satisfy case which is well charged in the

the terms of the order; but bill. 1 Ves. 426,427. lVes.jun.

that the Court considers the 289. Facts on a demurrer are

practice in this respect to be taken to be true ; that is, facts

guarded by the honour of which are well and materially

Counsel. See Tomkin v. Leth- alleged. Lord Hardwicke in

bridge, 9 Ves. 178. 11 Ves. 73. Butler v. Royal Exchange As-

(z) Tiddv. Clare, Dick. 712. surance,'m Chan. 22 Nov. 1749.

(a) Ruspini v. Vkkery, in 1 Ves. jun. 78. 289. 3 Meriv.

Chan. 16 Jan. 1793. 503. 1 Madd. 565.

P 2

212 DEMURRERS.

sidered as true . A demurrer is therefore always pre-
ceded by a protestation against the truth of the matters
contained in the bill ; a practice borrowed from the
common law, and probably intended to avoid conclu-
sion in another suit.

The admission by a demurrer of the truth of the
facts stated in the bill has been considered as one
reason why a defence founded on length of time,
though apparent on the face of the bill, without any
circumstance stated to avoid its effect, cannot gene-
rally be made by demurrer (c). Upon a demurrer to
a bill brought to impeach transactions which had
passed twenty-eight years before the bill was filed,
on the ground of fraud, without any sufficient cause
shown for not instituting the suit sooner, it was said
by the court that the party who demurs admits
every thing well pleaded, in manner and form as
pleaded ; and a demurrer ought therefore in a court
of law to bring before the court a question of law
merely ; and in a court of equity, a question of law
or equity merely. The demurrer therefore must be
taken to admit the whole case of fraud made by the
bill ; and the argument to support it must be, not
that a positive limitation of time has barred the suit,

case be so stated in the bill as after quiet possession by the

to show that his claim is barred mortgagee of more than twenty

by lapse of time, and no ground years, (see Aggas v. Pickerell,

of exception, as infancy, or the 3 Atk. 225; and see 2 Ves. jun.

like, be alleged therein, it seems 84,) the defendant may demur,

that, contrary to the opinion of Bcchford v. Close, cited 3 Bro.

Lord Hardwicke, expressed in C. C. 644, 4 Ves. 476, ib. 479.

a case in which the suit was Foster v. Hodgson, 19 Ves. 180.

DEMURRERS. 213

for that would be a pure question of law, but that
from long acquiescence it should be presumed that
the fraud charged did not exist, or that it should be
intended that the plaintiff had confirmed the trans-
action, or had released or submitted upon such con-
sideration as to bar himself from the general equity
stated in the bill. This must be an inference of
fact, and not an inference of law ; and the demurrer
must be over-ruled, because the defendant has no
right to avail himself by demurrer of an inference of
fact, upon matter on which a jury in a court of law
would collect matter of fact to decide their verdict,
if submitted to them, or a court would proceed in
the same manner in equity. What limitation of
time will bar a suit where there is no positive limita-
tion, or under what circumstances the lapse of time
ought to have that effect, must depend on the facts
of the particular case, and the conclusion must be an
inference of fact, and not an inference of law(Y/), and
therefore cannot be made on a demurrer (e).

A demurrer must express the several causes (f)
of demurrer ( g) ; and in case the demurrer does not

(d) See Cuthbert v. Creasy, length of time was allowed by
6 Madd. 189. the council, present Kenyon,

(e) Ld. Deloraine v. Broivne, M. R. after consideration. —
in Chan. 13 & 14 June, 1792. (f) See 3 Madd. 8. 1 Jac. R.
3 Bro. C. C. 633. But see 467 ; and see Harrison v. Hogg,
p. 204, as to demurrers to bills 2 Ves. jun. 323.

of review. In Tobi?i v. Beck- (o-) Peachic v. Tivycrossc,

ford, on appeal from Jamaica, Gary Rep. 113. Ord. in Cha.

26 July 1784, a demurrer to a Ed. Bea. 77. 173.
bill to redeem on account of

* 3

214 DEMURRERS.

go to the whole bill, it must clearly express the
particular parts of the bill demurred to (/*). If a
demurrer is general to the whole bill, and there is
any part, either as to the relief or the discovery, to
which the defendant ought to put in an answer, it
was generally considered that the demurrer being
entire must be over-ruled (i). But there are in-
stances (k) of allowing a demurrer in part (/) ; and
a defendant may put in separate demurrers to sepa-
rate and distinct parts of a bill for separate and dis-
tinct causes (in). For the same ground of demurrer
frequently will not apply to different parts of a bill,
though the whole may be liable to demurrer ; and

(h) Chetxvynd v. Lindon, 2 has been resorted to by several

Ves. 451. Devonsher v. New- defendants jointly, it may be

enham, 2 Sch. & Left. 199. good as to some of them, and

And this must be done, not by bad as to the others, see 8 Ves.

way of exception, as by de- 403, 404.

murring to all except certain (k) Rolf v. Lord Somerville,

parts of the bill, but by positive 2 Eq. Ca. Ab. 759. Radcliffe

definition of the parts to which v. Fursman, 2 Bro. P. C. 514,

he thereby seeks to avoid Toml. Ed.
answering. See Robinson v. {I) Although this is not now

Thompson, 2 Ves. & Bea. 118. the practice, the Court will in

Weatherhead v. Blackburn, some instances, on the argu-

2 Ves. & Bea. 121. Sed vid. ment of a demurrer, grant

Hicks v. Rai?icock, 1 CoxR. 40. leave, upon over-ruling it, to

(i) 1 Ves. 248. Earl of the defendant to put in another

Suffolk v. Green, 1 Atk. 450. less extended (Thorpe v. Ma-

Todd v. Gee, 17 Ves. 273. cauley, 5 Madd. 218), and will,

1 Swanst. 304. l Jac. R. 467. even after it has been over-

But though a demurrer cannot ruled, sometimes be induced

be good in part and bad in to grant a similar indulgence,

part (8 Ves. 403 ; 1 1 Ves. 70 ; Baker v. Mellish, 1 1 Ves. 68.
17 Ves. 280), it appears that (m) 3 P. Wms. 149. Rober-

where such a mode of defence dean v. Rous, 1 Atk. 544.

DEMURRERS. 21$

in this case one demurrer may be over-ruled upon
argument, and another allowed (V).

If the plaintiff conceives that there is not sufficient
cause apparent on his bill to support a demurrer put
in to it, or that the demurrer is too extensive, or
otherwise improper, he may take the judgment of the
court upon it ; and if he conceives that by amending
his bill he can remove the ground of demurrer, he
may do so before the demurrer is argued, on pay-
ment of costs, which vary according to the state
of the proceedings (0). But after a demurrer to the
whole of a bill has been argued and allowed, the
bill is out of court, and therefore cannot be regu-
larly amended (p). To avoid this consequence the
court has sometimes, instead of deciding upon the
demurrer, given the plaintiff liberty to amend his
bill, paying the costs incurred by the defendant; and
this has been frequently done in the case of a de-
murrer for want of parties (0/). Where a demurrer
leaves any part of a bill untouched, the whole may
be amended notwithstanding the allowance of the

(») North v. Earl and Coun- allowing a demurrer, will some-

tess of Strafford. 3 P. Wms. times give the plaintiff leave

148. to amend, see Mayor, Sfc. of

(0) Anon.Mosely, 301. 1 Ves. London v. Levy, 8 Ves. 398 ;

jun. 448. Anon. 9 Ves. 221. Edwards v. Edwards, 6 Madd.

1 Aim. Cur. Cane. 565. 1 Har- 255 ; and it seems probable

rison Chan. Pract. 39. that, even after allowance, the

(p)See above,p. 14, note(tf). Court might be induced, under

Lord Coningsby v. Sir Jos. some circumstances, to set the

Jekyll, 2 P. W. 300, and note, cause on foot again, and to au-

and Watkins v. Bush, Diek, 701. thorize an amendment of the

{q) And the Court, upon bill. See 11 Ves. 72.

P 4

2 10 DEMURRERS.

demurrer ; for the suit in that case continues in
court, the want of which circumstance seems to be
the reason of the contrary practice where a demurrer
to the whole of a bill has been allowed. A demurrer
being frequently on matter of form is not in general
a bar to a new bill ; but if the court upon a demurrer
has clearly decided upon the merits of the question
between the parties, the decision may be pleaded in
bar of another suit(r).

A demurrer being always upon matter apparent
upon the face of the bill, and not upon any matter
alleged by the defendant, it sometimes happens
that a bill, which, if all the parts of the case were
disclosed, would be open to a demurrer, is so art-
fully drawn as to avoid showing upon the face of it
any cause of demurrer. In this case the defendant
is compelled to resort to a plea, by which he may
allege matter which if it appeared on the face of the
bill would be good cause of demurrer. For in
many cases what is a good defence by way of plea
is also good as a demurrer, if the facts appear suffi-
ciently by the bill (s). And if a demurrer should
be over-ruled on argument because the facts do not
sufficiently appear on the face of the bill, defence may
be made by plea, stating the facts necessary to bring
the case truly before the court, though it has been said
that the court would not permit two dilatories (f). And

(r) See the cases upon de- (t) Hudson v. Hudson, in
murrers to bills of review cited Chan. 23 April, 1734. Re-
above, p. 205, note (a), ported, 1 Sim. & Stu. 512.

(5) See Hetley 139. But see note. Roxvley v. Eccles, 1 Sim.

3 Atk. 226. & Stu. 511.

DEMURRERS. 217

after a plea over-ruled, it is said that a demurrer was
allowed, bringing before the court the same question
in substance as was agitated in arguing the plea (w).
But after a demurrer has been over-ruled a second de-
murrer will not be allowed Qv) ; for it would be in effect
to rehear the case on the first demurrer ; as on argu-
ment of a demurrer, any cause of demurrer, though
not shown in the demurrer as filed, may be alleged at
the bar, and if goodwill support the demurrer(?/).

(u) E. India Company v.
Campbel. l Vez. 246. But it
may be doubted whether this
case has not been mistaken by
the reporter, and whether the
question was not on exceptions
to an answer. See 2 Vez. 491,
492.

(x) See 2 Bro. C. C. 66 ; and
see above, p. 214, note (/).
Where, however, a demurrer
was informal in its frame,
but good in substance, it
was overruled, with liberty to
the defendant to file another.
See Devonsher v. Nevoenham,
• 2 Sch. & Lefr. 199. And, in
consequence of the modern
doctrine, that a defendant who
submits to answer must in ge-
neral answer fully, see below,

Ch. 2, sect. 2, part 3, this
Court, in some instances, on
over-ruling a demurrer to dis-
covery, instead of giving the
defendant liberty to insist by
answer that he is not bound to
make the disclosure required,
will give him liberty to file
another less extensive. See
Thorpe v. Macauley, 5 Madd.
218.

(y) As to demurrers ore
terms, see Pyle v. Price, 6 Ves.
779. 8 Ves. 408. Dummer
v. Corporation of Chippenham,
14 Ves. 245. 17 Ves. 216. Att.
Gen. v. Moses, 2 Madd. R. 294.
1 Swanst. 288. Knye v. Moore,
1 Sim. & Stu. 61. Hook v. Dor-
man, 1 Sim. & Stu. 227.

CHAP.

( 218 )

CHAPTER II.

SECTION II.

PART II.

Of Pleas.

IN treating of pleas the same order may be conve
niently pursued as has been already used in
treating of demurrers. Pleas to original bills will
therefore be first considered, and under that head
the nature of pleas in general, and the principal
grounds of plea to every kind of bill, will necessarily
be noticed ; the distinct pleas applicable peculiarly
to the several other kinds of bill will be next men-
tioned ; and in the third place the frame of pleas
in general, and the manner in which their validity
may be determined, will be considered. Pleas to
original bills will also be considered under the two
heads of pleas to relief, and pleas to discovery only,
and these will necessarily involve the consideration
of pleas to bills of discovery merely.

A demurrer has been mentioned to be the proper
mode of defence to a bill when any objection to
it is apparent on the bill itself, either from matter
contained in it, or from defect in its frame, or in the
case made by it. When an objection to a bill is not
apparent on the bill itself (z), if the defendant means

(z) See Billing v. Flight, l Madd. R. 230.

PLEAS. 2ig

to take advantage of it, he ought to show to the
court the matter which creates the objection, either
by answer, or by plea, which has been described as
a special answer, showing or relying upon one or more
things as a cause why the suit should be either dis-
missed, delayed or barred (a). The defence proper
for a plea is such as reduces the cause, or some part
of it, to a single point (b), and from thence creates a
bar to the suit, or to the part to which the plea ap-
plies (c). It has been observed, that the end of a
plea is to save to the parties the expense of an
examination of witnesses at large ; and that there-
fore it is not every good defence in equity that is
good as a plea : for that where the defence con-
sists of a variety of circumstances there is no use
of a plea, as the examination must still be at large ;
and the effect of allowing a plea would be, that
the court would give judgment on the circumstances
of the case before they were made out by proof (d).

Pleas have been generally considered as of three
sorts ; to the jurisdiction of the court ; to the person
of the plaintiff or defendant ; and in bar of the suit.
As they have been usually arranged under these
heads, it may be convenient to consider them in
some degree with reference to that arrangement ; but
the order before observed in treating of demurrers
may be at the same time pursued ; and pleas may

(a) Prac. Reg. 324. Wy. Ed. (c) 2 Bligh. P. C. C14.

2 Sch. & Left. 725. 1 Madd. (d) Chapman v. Turner, 1

R. 194. Atk. 54. S. C. 1 Harr. Chan.

(b) 1 Atk. 54. i5Ves.82. 377. Prac. 356. 1 13Iigh, P. C. 614.

'220 PLEAS.

be considered with reference to the several grounds
already mentioned on which defence may be made
to a bill.

The objections to the relief sought by an original
bill which can be taken advantage of by way of
plea, are nearly the same as those which may be the
subject of demurrer; but they are rather more
numerous, because a demurrer can extend to such
only as may appear on the bill itself, whereas a plea
proceeds on other matter. The principal are,
I. That the subject of the suit is not within the
jurisdiction of a court of equity ; II. That some
other court of equity has the proper jurisdiction ;
III. That the plaintiff is not entitled to sue by
reason of some personal disability ; IV. That the
plaintiff is not the person he pretends to be, or does
not sustain the character he assumes ; V. That the
plaintiff has no interest in the subject, or no right to
institute a suit concerning it ; VI. That he has no
right to call on the defendant concerning it ;
VII. That the defendant is not the person he is
.alleged to be, or does not sustain the character he
is alleged to bear; VIII. That the defendant has
not that interest in the subject which can make him
liable to the demands of the plaintiff; and IX. That
for some reason, founded on the substance of the
case, the plaintiff is not entitled to the relief he
prays. Of these the second is the plea generally
termed a plea to the jurisdiction of the court ; and
the third, the fourth, and the seventh, are treated as
pleas to the person of the plaintiff and defendant ;

PLEAS. 22t.

the others are considered as pleas in bar of the suit ;
X. The deficiency of a bill to answer the purposes
of complete justice may also be shown by plea, which
may be considered as in bar of the suit, though per-
haps a temporary bar only. XI. The impropriety
of unnecessarily multiplying suits may be the sub-
ject of plea, which is also in bar of the suit : but the
inconvenience which may arise from confounding
distinct matters in the same bill, as it must be ap-
parent on the bill itself, unless very artfully framed,
can in general only be alleged by demurrer.

Those pleas which are commonly termed pleas to.
the jurisdiction of the court do not dispute the rights
of the plaintiff in the subject of the suit, or that they
are fit objects of the cognizance of a court of equity,
but simply assert that the court of chancery is not
the proper court to take cognizance of those rights.
Pleas to the person of the plaintiff also do not dis-
pute the validity of the rights which are made the
subject of the suit, but object to the plaintiff that he
is by law disabled to sue in a court of justice, or
cannot institute a suit alone ; or that he is not the
person he pretends to be, or does not sustain the
character he assumes. Pleas in bar are commonly
described as allegations of foreign matter, whereby,
supposing the bill so far as it is not contradicted by
the plea (e) to be true, yet the suit, or the part of it
to which the plea extends, is barred (/*). But this
description perhaps does not comprise every kind of

(e) 2 Atk. 51. (/) Prac. Reg. 327. Wy. Ed. 1 Madd. R. 194.

222 PLEAS.

plea, or does not mark the distinctions between the
different kinds with sufficient accuracy.

I. The general objects of the jurisdiction of a court
of equity, and the manner in which a want of juris-
diction may be alleged by demurrer, when a bill does
not propose to attain any of those objects, or it is ap-
parent on the face of it that none can be attained by
it, have been already mentioned. A case which is
not really such as will give a court of equity juris-
tion cannot easily be so disguised in a bill as to
avoid a demurrer ; but there may be instances to the
contrary ; and in such cases it should seem a plea
of the matter necessary to show that the court has
not jurisdiction of the subject, though perhaps una-
voidably in some degree a negative plea, would
hold (g). Thus, if the jurisdiction was attempted
to be founded on the loss of an instrument, where,
if the defect arising from this supposed accident
had not happened the courts of ordinary jurisdic-
tion could completely decide upon the subject, per-
haps a plea, showing the existence of the instrument,
and that it was in the power of the plaintiff to obtain
a production of it, ought to be allowed, though in-
stances of this sort of plea may not occur in practice.
For it seems highly unreasonable that a plaintiff by
alleging a falsehood in his bill should be permitted
to involve a defendant in the expense of a suit in
equity, though the bill may finally be dismissed at
the hearing of the cause, if the defendant answers

(g) See Armitage v. Wadstvorth, l Madd. R. 189.

PLEAS. 223

the case made by it, and enters into his defence at
large. No authority, however, occurs to support
such a plea (h) ; and as there is little disposition in
the courts of equity to countenance those defences
which tend to prevent the progress of a suit to a
hearing in the ordinary way, whatever the expense
of the proceeding may be, it would hardly be pru-
dent to endeavour thus to put a stop to an attempt
to transfer the jurisdiction of a suit from the ordinary
courts to a court of equity ; and indeed the guard
put upon cases of this kind, by requiring the affida-
vit of the plaintiff of the truth of the matter which
he alleges by his bill to support the jurisdiction of the
court, is likely to prevent any abuse upon this head.

II. Though the subject of a suit may be within
the jurisdiction of a court of equity, yet if the court
of chancery is not the proper jurisdiction, the de-
fendant may plead the matter which deprives the
court of jurisdiction, and show to what court the
jurisdiction belongs (i), and upon this ground may
demand the judgment of the court whether he shall
be compelled to answer the bill (k). Pleas of this
nature arise principally where the suit is for land
within a county palatine (/), or where the defendant

(k) See 1 Madd. R. 195. Reported, upon view of prece-

(i) Earl of Derby v. Duke dents, that the jurisdiction of

ofAthol,! Vez. 202. Nabob of the counties palatine was al-

the Carnaticv. E. I. Comp. 1 Ves. lowed, between parties dwell -

jun. 371. S.C. 3Bro. C.C. 292. ing within the same, and for

(A) Ch. Prac 417. 420. lands there, and matters local.

3 Atk. 2G4. Nels. Rep. 37. 66. See also

(/) Com. Dig. Chan. Plea I. Willoughby v. Brcarton, Cary's

1 Chan. Prac. 420. Edgtvorlh Rep. 60. Gerrard v. Stanley,

v. Davies, 1 Ca. in Cha. 40. 1 Cha. Rep. 278.

224 PLEAS.

claims the privileges of an university (rn), or other
particular jurisdiction (n).

The court of chancery being a superior court of
general jurisdiction, nothing shall be intended to be
out of its jurisdiction which is not shown to be so (o).
It is requisite, therefore, in a plea to the jurisdiction
of the court, to allege that the court has not juris-
diction of the subject, and to show by what means it
is deprived of jurisdiction (p). It is likewise necessary
to show what court has jurisdiction (jj). If the plea
does not properly set forth these particulars (r) it is
bad in point of form (i). In point of substance it is
necessary to entitle the particular jurisdiction to ex-
clusive cognizance of the suit that it should be able
to give complete remedy (7). A plea, therefore, of
privilege of the university of Oxford, to a bill for a
specific performance of an agreement touching lands
in Middlesex, was over-ruled ; for the university
court could not give complete relief(w). And if a
suit is instituted against different persons, some of

(m) Temple v. Foster, Cary (r) See Moor v. Somerset, Nels.

Rep. 65. Cotton v. Manering, Rep. 51 ; and see 9 Mod. R. 95.

Cary Rep. 73. Draper v. Crow- (s) Foster v. Vassall, 3 Atk.

ther, 2 Vent. 362. Stephens 587. And see Nabob of Arcot

v. Berry, l Vern. 212. v. East Ind. Comp. 3 Bro. C.C.

(n) See Cunningham v. Wegg, 292. S. C. 1 Ves. jun. 371.

2 Bro. C. C. 241. if) Neivdigate v. Johnson,

(0) 1 Vez. 204. 2 Vez. 357. 2 Ca. in Cha. 170. Wilkins v.

(p) See 3 Bro. C. C. 301. Chalcroft, 11 Vin. Abr. 10.

1 Ves. jun. 388. Green v. Rutheiforth, 1 Vez.

(q) Strode v. Little, 1 Vern. 463.

59. Earl of Derby v. Duke of (u) Draper v. Croxvther, 2

Athol, l Vez. 202. S. C. Dick. Ventr. 362. Stephens v. Berry,

129. 1 Vern. 212.

PLEAS. 225

whom have privilege, and some not (a1) ; or if one de-
fendant is not amenable to the particular jurisdic-
tion (j/) a plea will not hold. If, likewise, there is
a particular jurisdiction, and yet the parties to litigate
any question are both resident within the jurisdiction
of the court of chancery ; as upon a bill concerning
a mortgage of the island of Sarke, both mortgagor
and mortgagee residing in England, the court of
chancery will hold jurisdiction of the cause : for a
court of equity agit in 'personam (z). So where the
court may not have jurisdiction to give relief it may
yet entertain a bill for a discovery in aid of the court
which can give relief, if the same discovery cannot
be there obtained ; as if the jurisdiction be in the King
in council, where the defendant cannot be compelled
to answer upon oath (a).

Similar to a plea to the jurisdiction is the case of
a plea to an information charging an undue election
of a fellow of a college in one of the universities,
" that by the statutes the visitor of the college ought
" to determine all controversies concerning elections
'* of fellows, and that such controversies ought not
tl to be determined elsewhere (b)." But the extent
of the visitor's authority must be averred, and it
must also be averred that he is able to do complete
justice (c). And where there is a trust created, the

(x) Lovogher v. Loivgher, 494. l Vez. 204. 3 Ves. 182*

Cary Rep. 55. S. C. 22 Vin. 5 Madd. 307.
Abr. 9. Fanshaiv v. Fanshaw, {a) 1 Vez. 205.

1 Vern. 246. (b) Att. Gen. v. Talbot, 3

(y) Grigg's case, Hutton, Atk. 662. S. C. 1 Vez. 78.

59 ; and see 4 Inst. 213. Hil- And see 1 Vez. 472. 474, 475.

ton v. Laivson, Cary R. 48. 2 Vez. 328.

(z) Toiler v. Carteret, 2 Vern. (c) 1 Vez. 474.

226 PLEAS.

visitor having no power to compel performance of
the trust, relief must be had in the King's courts of
general jurisdiction (d).

III. In respect to the person of the plaintiff it may-
be shown that he is disabled to sue, as being, 1 , out-
lawed, or 2, excommunicated, or 3, a popish recusant
convict, or 4, attainted in a premunire, or of treason
or felony, or 5, an alien ; or it may be shown, 6, that
the plaintiff is incapable of instituting a suit alone.
A plea of this kind is in the nature of a plea in
abatement of the suit.

1. A person outlawed is disabled from suing in a
court of justice, and if a bill is filed in his name the
defendant may plead the outlawry, which whilst it
remains in force will delay the proceeding (e). The
record of the outlawry, or the capias thereupon,
must be pleaded sub peck sigilli, and is usually an-
nexed to the plea(y). A plea of outlawry, in a suit
for the same duty or thing for which relief is sought

(d) Green v. Rutherforth, 83. And such a plea may be

1 Vez. 462 ; and see 4 Bro. C C. fijed by a defendant who is in

1 67. 2 Ves jun .47. 1 3 Ves. 533- contempt. Waters v. Chambers,
Ex parte Berknamsteaa bcnooi, „,. „ '

2 Ves. &B. 134. ! Sim> & StU' 225'

(e) A plea of outlawry may be (/) Tothill, 54 ; Prac. Reg.
filed without oath, 1 Ca. in Cha. 327. Wy. Ed. ; Ord. in Cha.
258. Tookv. Took, 2 Vern. 198, Ed. Bea. 27. And in a case
Anon. 2 Freem. 143 ; Hovend. in which the formality alluded
Ed. but see Parrot v. Bowden, to had been omitted, by mis-
ib. 37 ; the main fact appearing take of the clerk of the out-
upon record, Ord, in Cha. Ed. lawries, the plea was allowed
Bea. 23, 2 Ves. & Bea. 357 ; to be amended, by annexing to
and a mere averment of i den- it an office-copy ofthe exigent, or
tity being considered sufficient, record of the outlawry. Waters
2 Vern. 199; and see 19 Ves. v. Mayheiv, 1 Sim. & Stu. 220.

PLEAS. 227

by the bill, is insufficient according to the rule of
law, and shall be disallowed of course, as put in for
delay ( g). Otherwise a plea of outlawry is always a
good plea so long- as the outlawry remains in force (Ji) ;
but if that shall be reversed, the plaintiff, upon pay-
ment of costs, may sue out fresh process against
the defendant, and compel him to answer the
bill (i). Outlawry in a plaintiff executor or ad-
ministrator cannot be pleaded ; for he sues in aider
droit (k). It is equally insufficient if alleged in dis-
ability of a person named in a bill as the next friend
of an infant plaintiff (/), or in an information as a
relator (ni).

2. The defendant may plead that the plaintiff is
excommunicated (ji), which must be certified by the
ordinary, either by letters patent containing a positive
affirmation that the plaintiff stands excommunicated,
and for what ; or by letters testimonial, reciting,
" quod scrutatis register Us invenitur, &c." Either

(g) See Philips v. Gibbons, disability of the person of a

1 Ves. & Bea. 184; Ord. in relator, is said to have been
Cha. Ed. Bea. 175. allowed in the duchy-court of

(h) Ord. in Cha. Ed. Bea. 175; Lancaster. But the relator

3Bac.Abr. 761. Outlawry (3). seems to have sustained the

(i) Ord. in Cha. Ed. Bea. character of plaintiff as well

175 ; and see Peyton v. Ayliffe, as of relator. See 3 Bac. Abr.

2 Vern. 312. 7C2. Outlawry (3) ; and see
(k) Killigreu) v. Killigrew, also Waller v. Hanger, 2 Bulstr.

1 Vern. 184. Prac. Reg. 326. 134. Palmer 's case, And. 30.

Wy. Ed. (n) And this plea may be put

(/) Prac. Reg. 327. Wy. Ed. in without oath, if the excom-

(m) There is a case, Alt. Gen. munication appear upon record.

v. Heath, Prec. in Cha. 13, Ord. in Cha. Ed. Bea. 26, and

where a plea of outlawry, in 2 Ves. & Bea. 327.

Q 2

-2S PLEAS.

of these certificates must be sub sigiilo, and so
pleaded (0). Excommunication is a good plea to an
executor or administrator, though they sue in auter
droit (p), but not to the next friend of an infant (7/).
This, like the plea of outlawry, ceases to be a bar
when the disability is removed ; and therefore the
plaintiff, purchasing letters of absolution, may, as at
law, sue out fresh process, and compel the defendant
to answer the bill (r).

3. By statute 3 Ja. I. c. 5. s. 11, every popish
recusant convict is in many cases disabled to sue, in
the same manner as a person excommunicated. The
instances of a plea of conviction of recusancy have
probably been rare, as no traces of any occur in the
books of reports, nor does the form of the plea
appear in the books of practice. If advantage should
be attempted to be taken of this statute, the court
would probably require the same averments to sup-
port the plea as are necessary to a plea of the
same nature at law (s). This plea also ceases to be
a bar if the plaintiff by conforming removes the
disability (t).

4. A plea, that the plaintiff is disabled from suing

(0) Ord. in Cha. Ed. Bea. 27. c. 127, excommunication is dis-

Prac. Reg. 327. Wy. Ed- continued, except in certain

Tothill, 54. cases therein specified.

(p) Co. Litt. 134, a. 2 Bac. (s) 3 Bac. Ab. 780. Papists,

Abr. 319. Excom. (D) (1). See Lord Petre v. Univ.

(a) Prac. Reg. 278. of Cambridge, Lutwyche, 1 100.

(r) Amcrsv. Legg. Choice Ca. (t) See stat. 31 Geo. 3, c. 32,

in Cha. 164. Pract. Reg. 327. § 3; and valuable note to Co.

Wy. Ed. It should here bemen- Litt. p. 391, a. note (2). Hargr.

tioned, that by stat. 53 Geo. 3, & Butl. Ed.

PLEAS. 229

being attainted, is equally rare (u). It. would pro-
bably be likewise judged with the same strictness as
if it was a plea at Law (.r).

5. There is little more to be found in the hooks
upon the subject of a plea that the plaintiff is an
alien(w). An alien, who is not an alien enemy, is
under no disability of suing for any persona] de-
mand (z) ; and an alii n enemy may sue under ome
circumstani ■ - (a). A plea has be* n put in to a bill
filed by an alien infidel not, of the Chri tian faith,
and wras attempted to be supported upon the ground
that the plaintiff was upon a cross-bill incapable of
being examined upon oath. The plea wax over-ruled
without, argument rhj.

6. [f a bill is filed in the name of any person in-

(u) See — v. Dairies, ig\e*. 1 Atk. 51. Aa tor the incapa-

81 ; and iee Ea parfe Bullock, cities of aliens to take and to

i4Ves. 4.72. And case on Irish bold certain property, iee Co.

statute*, Kennedy v. Tidy, 1 Sch. Liu.. ^. b., and note* in Efargr.

& Lf.fr. 355. & Butl. Ld. In such canes, it

(j) 2 Atk. 399. This kind is presumed that a plea of mere

of plea if not to be supported alienage, if properly framed,

by oath, but can be- proved irould be a Htfficient defl

by the record alone, r. See Co. lAtL 129. (b)i ■"■<\

Jkeries, \<j Vet. 81. 2 W.. & liial .. Brawn, 2 Art.. 397.

I: .1. 327. (tf) :j i>"rr. 1741. j I:

(y, /;ur/: v. BrOWl, 2 Atk. Ab. 84. /Mien (D). J>

397. 2Yin.Abr.274. Alien (J). 619. Cornu and Blackburne,

i Bac.Abr.83. Alien D . Frac. and the case of Anthon and

327. Wy. Ed. Bast. Entr. Fisher,ia Doug, note i, p. 626.

/; . Ait. Gen. \ Bro. P. But the la'

C. 421. Torn!. Ed. Mbreteht\ in the E»

• „«/,2\ and quer Chamber, 16th Nor. 1784.

Exparte Lee, 13 Vet. '-4. and Arid see Evans v. Richardson,

Ex forte B • • .'j Mernr. 4'

71. i Ramkissenseat v. /j'//

A''.'/"/ /;• '. "k. 51.

230 PLEAS.

capable alone of instituting a suit, as an infant, a
married woman, or an idiot or lunatic, so found by
inquisition, the defendant may plead the infancy,
the coverture (b), or the inquisition of idiotcy or lu-
nacy (c), in abatement of the suit.

IV. A plea, that the plaintiff is not the person
he pretends to be, or does not sustain the character
he assumes, and therefore is not entitled to sue as
such (Y/), though a negative plea, is good in abate-
ment of the suit ; as where a plaintiff entitled himself
as administrator, and the defendant pleaded that he
was not administrator (e). And where a plaintiff
entitled himself as administrator of an intestate, and
the defendant pleaded that the supposed intestate
was living (/"), the plea was allowed. It has been
made a question how far a negative plea can be
good (g). To a bill by a person claiming as heir
to a person dead, the defendant pleaded that another
person was heir, and that the plaintiff was not heir
to the deceased, and the plea was over-ruled (^),
but this decision was afterwards doubted by the
learned Judge himself (i), when pressed by the ne-

(b) Prac. Reg. 326. Wy. Ed. pleas referred to in the next

being in a state of mere mental (h) Neivynanv. Wallis, 2 Bro.

incapacity, Wartnaby v. Wart- C. C. 142 ; and see Gunn v.

naby, 1 Jac. R. 377. Prior, Dick. 657. S.C. l Cox.

(d) Prac. Reg. 326. Wy. Ed. R. 197. Forrest. Ex. R. 88. n.

(e) Winn v. Fletcher, 1 Vern. Kinnersley v. Simpson, Forrest.
473; but see Fell v. Lutvoidge, 85. See also Earl 'of Strathmore
2 Atk. 120. 3 Barnard. 320. v. Countess of Strathmore, 2 Jac.

{f) Ord against Huddleston, & W. 541.

Dick. 510. S.C. cited, 1 Cox (2)3Bro.C.C.489. iMadd.R.

R. 198. 194. And it seems to have been

{g) But that question has established, that in such a case,

been set at rest. nVes. 302, apleathatthe plaintiff is not heir,

305. See instances of negative without showing who is heir,

PLEAS. 231

cessary consequence, that any person falsely alleging
a title in himself might compel any other person to
make any discovery which that title, if true, would
enable him to require, however injurious to the per-
son thus improperly brought into court ; so that any
person might, by alleging a title, however false,
sustain a bill in equity against any person for any
thing so far as to compel an answer ; and thus the
title to every estate, the transactions of every com-
mercial house, and even the private transactions of
every family, might be exposed ; and this might be
done in the name of a pauper, at the instigation of
others, and for the worst purposes (k). To avoid
this inconvenience, a defendant has in some cases
been permitted to negative the plaintiff's title by
answer, and thus to protect himself against the re-
quired discovery ; but in other cases this has not
been allowed, and the subject seems still to require
further consideration (/).

V. Interest in the subject of the suit, or a right to

would be good, for that the several Judges. In the case

defendant might not be able to oiGeihin v. Gale, cited in Ambl.

prove. 16 Ves. 264, 265. 354, the Master of the Rolls,

(k) As further examples of ne- sitting for the Chancellor, 29

gative pleas, see Dretv v. Drew, Oct. 1 739, said, it was one thing

2 Ves. & Bea. 159, Sanders to deny a title in the plaintiff,

v. King, 6 Madd. 61, and Yorke and another to show a title in

v. Fry, ibid. 65, that plaintiff one's self; and that the former

is not a partner ; and Thring had never been allowed as a

v. Edgar, 2 Sim. & Stu. 274, good plea — Mr. Capper's note.

and particularly at p. 280, that See the authorities cited in the

he is not a creditor. last note, and in the notes to the

(£)SeenVes.283,296,&303, next page and below, Chap. 2.

and the several cases there cited, sect. 2. part 3.
with the discordant opinions of

Q 4

23'2 PLEAS.

the thing demanded, and proper title to institute a
suit concerning it, have been mentioned as essentially
necessary to sustain a bill ; and it has been observed,
that if they are not fully shown by the bill itself the
defendant may demur. But a title apparently good
may be stated in a bill, and yet the plaintiff may
not really have the title he states, either because he
misrepresents himself, which has been considered
under the last head, or because he suppresses some
circumstances respecting his title, which if disclosed
would show either that nothing was ever vested in
him, or that the title which he had has been trans-
ferred to another ; and this the defendant may show
by plea in bar of the suit. As if a plaintiff claims as
a purchaser of a real estate, and the defendant pleads
that he was a papist, and incapable of taking by pur-
chase (w) ; or a plaintiff claims property under a title
accrued previous to conviction of himself, or of a
person under whom he claims, of some offence which
occasioned a forfeiture («), or previous to a bank-
ruptcy^), or any other defect in the title (p) of the

(m) See however, 1 8 Geo. 3, stance of a plea that the plain-

c. 60, s. 2, and the 43 Geo. 3. tiff had taken the benefit of an

c. 30. by which this incapacity Act for the relief of insolvent

is conditionally removed. debtors, De Minckvoitz v. Udney,

(n) 2 Atk. 399. v. Da- 16 Ves. 466.

vies, 1 9 Ves. 8 1 . (p) Quilter v. Mussendine,

(0) Cdrleton v. Leighton, Gilb. Ca. in Eq. 228. Hitchins
3 Meriv. 667. See Loivndes v. v. Lander, Coop. R. 34. Gait
Taylor, 1 Madd. R. 423 ; S. C. v. Osbaldeston, 1 Russ. R. 158,
2 RoseR.3G5.432. Itseemsa in which the decision in S. C.
pleaof the plaintiff's bankruptcy reported 5 Madd. 428, was over-
must be upon oath, Joseph v. ruled ; and see Ocklestone v.
Tuckcy, 2 Cox R. 44. See in- Benson, 2 Sim. & Stu. 26*5.

PLEAS. 233

plaintiff to the matter claimed by the bill. A plea of
conviction of any offence which occasions forfeiture,
as manslaughter, must be pleaded with equal strict-
ness as a plea of the same nature at common law(y).
But if a plea ' goes to show that no title was ever
vested in the plaintiff, though for that purpose it
states an offence committed, conviction of the offence
is not essential to the plea, and the same strictness
is not required as in a case of forfeiture. Thus, in
the Exchequer, to a bill seeking a discovery of the
owners of a ship captured, and payment of ransom,
the defendants pleaded that the captor was a natural-
born subject, and the capture an act of piracy. Though
the barons at first thought that the plea could not be
supported unless the plaintiff had been convicted of
piracy, and the record of the conviction had been
annexed to the plea, they were finally of opinion that
as the plea showed that the capture was not legal, and
that therefore no title had ever been in the plaintiff,
the plea was good, and they allowed it accordingly (r).
Pleas of want of title generally extend to discovery as
well as to relief (s).

It cannot often be necessary to make defence on
this ground by way of plea ; for if facts are not stated
in the bill from which the court will infer a title in the
plaintiff, though the bill does contain an assertion
that the plaintiff has a title, the defendant may
demur ; the averment of title in the bill being not of
a fact, but of the consequence of facts. Thus, where

(q) 2 Atk. 399.

(r) Fall against , 1st May 1782.

(5) Gilb. 229.

234 PLEAS.

a plaintiff stated an encumbrance on a real estate, of
which he was devisee, and averred that it was the
debt of the testator, and prayed that it might be paid
out of the testator's personal estate in ease of the
real estate devised, the defendant having pleaded
that the testator had done no act by which he made
it his own debt, the plea was over-ruled, because,
whether it was his debt or not was matter of in-
ference from the facts stated in the bill, and therefore
the proper defence was by demurrer (t). Accord-
ingly the defendant afterwards demurred, and the de-
murrer was allowed (V).

VI. In treating of demurrers notice has been taken
that though a plaintiff has an interest in the subject
of a suit, and a right to institute a suit concerning
it, yet he may have no right to call upon the de-
fendant to answer his demands ; and it has been
observed, that this happens where there is a want of
privity of title between the plaintiff and defendant (V).
It would probably be difficult to frame a bill which
was really liable to objection on this head so artfully
as to avoid a demurrer. But if such a bill could be
framed it should seem that defence might be made
by plea.

VII. A plea that the defendant is not the person
he is alleged to be, or does not sustain the character
which he is alleged to bear, is mentioned as a plea
which may be supported (.v). It seems to have been

(t) Ttveddell v. Tweddell, (u) Same cause, 18th July

25th May 1784, in Chan- 1786.
eery. (x) See above p. 158.

PLEAS. 2$5

considered as more convenient for a defendant under
these circumstances to put in an answer alleging the
mistake in the bill, and praying the judgment of the
court whether he should be compelled further to an-
swer the bill (?/), but this in fact amounts to a plea,
though it may not bear the title ; and a plea has
been considered as the proper defence (#},

VIII. If a defendant has not that interest in the
subject of a suit which can make him liable to the
demands of the plaintiff, and the bill alleging that
he has or claims an interest avoids a demurrer, he
may plead the matter necessary to show that he has
no interest («), if the case is not such that by a
general disclaimer he can satisfy the suit (/;). Thus,
where a witness to a will was made a defendant to
a bill brought by the heir at law to discover the
circumstances attending the execution, and the bill
contained a charge of pretence of interest by the
defendant, though a demurrer for want of interest
was over-ruled because it admitted the truth of the
charge to the contrary in the bill, yet the court de-
clared an opinion that a defence might have been
made by plea (c).

(x) Prac. Reg. 326. Wy. Ed. (&) See the case of Turner

And see Griffith v. Batemau, v> R0iinson, j Sim. & Stu.

Finch R. 334. 3.

(y) Cary Rep. 61. Prac. Reg. (c) Plummer v. Mai/, 1 Vez.

327. Wy. Ed. Att. Gen. v. Lord 426. This must have been a ne-

Hoiham, 1 Turn. R. 209. See gativeplea. AndseeCarhvright

below, Chap. 2. sect. 2. part 3. v. Hately, 3 Bro. C. C. 238;

(z) 1 Ves. jun. 292, and see S.C. lVes. jun.292; 7Ves.289,

ibid. p. 294, note. 290; 1 Ves.&Bea.550. Turner

(o) Plummer v. May, I Vez. v. Robinson, 1 Sim. & Stu. 3.
426.

336 PLEAS.

IX. Though the subject of a suit may be within
the jurisdiction of a court of equity, and the court
of Chancery may have the proper jurisdiction ; though
the plaintiff may be under no personal disability, and
may be the person he pretends to be, and have a
claim of interest in the subject, and a right to call
on the defendant concerning it, and the defendant
may be the person he is stated to be, and may claim
an interest in the subject which may make him liable
to the plaintiff's demands, with respect to which
circumstances pleas have been already considered,
still the plaintiff, by reason of some additional cir-
cumstance, may not be entitled in the whole or in
part to the relief or assistance which he prays by his
bill. The objections which may be made to the
whole or any part of a suit, though liable to none
of the objections before considered, are principally
the subject of those kinds of pleas which are com-
monly termed pleas in bar ; and which are usually
ranked under the heads of pleas of matter recorded,
or as of record, in the court itself, or some other
court of equity ; pleas of matters of record, or mat-
ters in the nature of matters of record, in some court
not a court of equity ; and pleas of matters in pais.

Pleas in bar of matters recorded, or as of record,
in the court itself, or some other court of equity,
may be, 1, A decree or order of the court by which
the rights of the parties have been determined (d),
or another bill for the same cause dismissed (e) ;
2. Another suit depending in the court, or in some

(d)3 Atk.626. (e) Pritmanv.Pritman, 1 Vern. 310. 1 Atk.571.

PLEAS. 2J7

other court of equity, between the same parties for
the same cause (/). Pleas of this nature generally
go both to the discovery sought and the relief prayed
by the bill.

1 . A decree, determining the rights of the parties,
and signed and enrolled, may be pleaded to a new
bill for the same matter (g), and this even if the
party bringing the new bill was an infant at the time
of the former decree (h) : for a decree enrolled can only
be altered upon a bill of review (J). But the decree
must be in its nature final, or afterwards made so by
order, or it will not be a bar (A:). Therefore a decree
for an account of principal and interest due on a
mortgage, and for a foreclosure in case of non-pay-
ment, cannot be pleaded to a bill to redeem unless
there is a final order of foreclosure (/) ; nor can a
decree which has been made upon default of the de-
fendant in not appearing at the hearing be pleaded
without an order making the decree absolute ; the
terms of such a decree being always that it shall be
binding on the defendant, unless on being served with
a writ of subpoena for the purpose he shall show
cause to the contrary (m). Upon a plea of this nature
so much of the former bill and answer must be set

{f) Foster v. Vassall, 3 Atk. (k) See next page, notes (0)

587. &(p).

(s) Rutland v. Brett, Finch ... .

t» 71*- 77 7 si u \l) henhouse v. Earl, 2 Vez.

R. 124. Matlock v. Galton.

7 450.

Dick. 65.

(h) 1 Atk. 631. Gregory v. (m) Ord. in Clia. 198. Ed.

Moleswortfi, 3 Atk. 626. 3 Ves. Bea. And see Halseyv. Smith,

317. Mos. 186. Venemore v. Vene-

(j) 3 Atk. 627. See above, more, Dick. 93.
p. 83, et seq.

238 PLEAS.

forth as is necessary to show that the same point was
then in issue (k). A decree or order dismissing a
former bill for the same matter may be pleaded in
bar to a new bill (7) if the dismission was upon
hearing, and was not in terms directed to be without
prejudice (m). But an order of dismission is a bar
only where the court determined that the plaintiff had
no title to the relief sought by his bill ; and there-
fore an order dismissing a bill for want of prosecution
is not a bar to another bill (w). And a decree cannot
be pleaded in bar of a new bill unless it is conclu-
sive (0) of the rights of the plaintiffs in that bill, or
of those under whom they claim (p). Therefore a
decree against a mortgagor, and order of foreclosure
enrolled, were not deemed a bar to a bill by inter-
vening encumbrancers to redeem, although the mort-
gagee had no notice of those encumbrances : and
the mortgagee having been long in possession, the
account taken in the former cause was not deemed
conclusive against the plaintiffs in the new bill,
though under the circumstances the court, on over-
ruling the plea and ordering the defendant to answer,
limited the order by directing that the defendant

(k) Child v. Gibson, 2 Atk. (n) Brandlyn v. Ord, 1 Atk.

603. But see 1 Vein. 310. 571. 14 Ves. 232.

(I) Pritman v. Pritman, (0) See Coysgarne v. Jones,

1 Vern. 310. Madge v. Brett, Ambl. 613. Collins v. Gough,

Finch. R. 46. Connelly. Warren, 4 Gwill. T. C. 1294.
ib. 239. Earl of Peterborough (p) See Doyly v. Smith,

v. Germaine, 6 Bro. P. C. 1. 2 Ca. in Cha. ng. Godfrey v.

Toml. Ed. Chadwell, 2 Vern. 601. Athin-

(m) Seymour v. Nosivorthy, son v. Turner, 3 Barnard. 74.
1 Ca. in Cha. 155. Toth. 50.

PLEAS. 239

should answer to charges of errors or omissions, but
that the plaintiffs should not unravel the account at
large before the hearing ((f).

A decree must be signed and enrolled or it cannot
be pleaded in bar of a suit (r), though it may be in-
sisted upon by way of answer (s). But though it
cannot be pleaded directly in bar of the suit for want
of enrolment, it may perhaps be pleaded, to show
that the bill was exhibited contrary to the usual
course of the court, and ought not therefore to be
proceeded upon (f). For if the decree appeared upon
the face of the bill the defendant might demur (u),
a decree not signed and enrolled being to be altered
only upon a re-hearing (V), as a decree signed and
enrolled can be altered only upon a bill of review (3/).

If a bill is brought to impeach a decree on the
ground of fraud used in obtaining it, which, as has
been observed (z), may be done without the previous
leave of the court, the decree may be pleaded in
bar of the suit, with averments negativing the charges
of fraud, supported by an answer fully denying
them (a). Whether averments negativing the charges

(q) Morrett v. Western, Lady Granville v. Ra?nsden,

15 July 1710, in Ch. reported Bunbury, 56.

2 Vern. 663. (x) 2 Vez. 598. See above,
(r) Anon. 3 Atk. 809. Kin- p. 90.

sey v. Kinsey, 2 Vez. 577. (y) Read v. Hambey, 1 Ca. in

(s) 2 Vez. 577. And see Cba. 44. S.C. 2Freem.i79. See

Charles v. Roivley, 2 Bro. P. C. above, p. 237, note (A).

485. Toml. Ed." (*) Page 92.

(t) See 2 Vez. 577, note. (a) Wichalse v. Short, 3 Bro.

Chan. Pleas, 89. P. C. 558. Toml. Ed. S. C.

(u) Worthy v. Birkhcad, 2 Eq. Ca. Abr. 177, and 7 Vin.

3 Atk. 809. S. C. 2 Vez. 571. Abr. 398. pi. 15. 3 P. Wins.

240 PLEAS.

of fraud are necessary to a plea of this description
appears to have been a question much agitated in
recent cases (b) ; upon which it may be observed,
that without such averments, if the decree were ad-
mitted by the bill, nothing would be put in issue by
the plea. The question in the cause must be, not
whether such a decree had been made, but whether
such a decree having been made it ought to operate
to bar the plaintiff's demand. To avoid its operation
the bill must allege fraud in obtaining it ; and to
sustain it as a bar the fact of fraud must be denied
and put in issue by the plea. For upon the ques-
tion, whether the decree ought to operate as a bar,
the fact of fraud is the only point upon which issue
can be joined between the parties ; and unless the
plea covers the fact of fraud it does not meet the
case made by the bill ; and on argument of the plea,
the charge of fraud, not being denied by the plea,
must be taken to be true. If the bill states the

95. Gilb. For. Rom. 58. Trea- In the cases in the Court of

tise on Frauds, c. 18, p. 220. Exchequer it seems to have

Butcher v. Cole, at the Rolls, been supposed that the answer

26 June 1786, cited 1 Anstr. in support of the plea over-

99. See the cases of Sidney ruled the plea. But an answer

v. Perry, Parkinson v. Lecras, can only over-rule a plea where

Meadows v. Duchess of Kings- it applies to matter which the

ton, and Dexie v. Chester, defendant by his plea declines

mentioned in pages 247, 254, to answer ; demanding the

257, 2C3, 276. And see 6 Ves. judgment of the court, whether

59G. 1 Sch. & Lefr. 727. by reason of the matter stated

5 Madd. 330. 6 Madd. 64. in the plea he ought to be com-

(b) Pope v. Bish, 1 Anstr. pelled to answer so much of the

Exch. R. 59. Edmundson v. bill. See Arnold's case, Gilb.

Hartley, ib. 97. And see Bay- For. Rom. 59.
ley v. Adams, 6 Ves. jun. 586.

PLEAS. 24I

decree only as a pretence of the defendant, which it
avoids by stating, that if any such decree had been
made it had been obtained by fraud, the decree
must be pleaded, because the fact of the decree is
not admitted by the bill ; and the charge of fraud
must also be denied by the plea for the reasons
before stated. If the bill states the decree abso-
lutely, but charges fraud to impeach it, yet the
decree must be pleaded, because the decree if not
avoidable is alone the bar to the suit ; and the fraud
by which the bar is sought to be avoided must be
met by negative averments in the plea, because
without such averments the plea would admit the
decree to have been obtained by fraud, and would
therefore admit that it formed no bar. When issue
is joined upon such a plea, if the decree is ad-
mitted by the bill, the only subject upon which
evidence can be given is the fact of fraud. If
that should be proved, it would open the plea on the
hearing of the cause ; and the defendant would then
be put to answer generally, and to make defence to
the bill as if no such decree had been made. The
object of the plea is to prevent the necessity of en-
tering into that defence by trying first the validity
of the decree. If the evidence of fraud should fail,
the decree, operating as a bar, would determine the
suit as far as the operation of the decree would
extend.

It has also been objected, that a plea of the decree
is a plea of the matter impeached by the bill ; but
the frame of a bill in equity necessarily produces, in

242 PLEAS.

various instances, this mode of pleading (c). If the
bill stated the title under which the plaintiff claimed,
without stating the decree by which it had been
affected, the defendant might have pleaded the decree
alone in bar. If the bill stated the plaintiff's title,
and also stated the decree, and alleged no fact to
impeach it, and yet sought relief founded on the title
concluded by it, the defendant might demur; because
upon the face of the bill the title of the plaintiff would
appear to be so concluded. But as in the form of
pleading in equity the bill may state the title of the
plaintiff, and at the same time state the decree by
which, if not impeached, that title would be con-
cluded, and then avoid the operation of the decree
by alleging that it had been obtained by fraud ; if
the defendant could not take the judgment of the
court upon the conclusiveness of the decree by plea
upon which the matter by which that decree was
impeached would alone be in issue, he must enter
into the same defence (by evidence as well as by
answer) as if no decree had been made ; and would
be involved in all the expense and vexation of a
second litigation on the subject of a former suit,
which the decree, if unimpeached, had concluded.
It is therefore permitted to him to avoid entering
into the general question of the plaintiff's title as
not affected by the decree, by meeting the case
made by the plaintiff, which can alone give him

(c) See 3 P. Wms. 3 17, where who objected to this mode of
Lord Chancellor Talbot is stated pleading, observing that it was
to have interrupted the counsel, every day's practice.

PLEAS. 243

a right to call for that defence, namely, the fact
of fraud in obtaining the decree. This has been
permitted to be done in the only way in which it
can be done, by pleading the decree with averments
denying the fraud alleged ; and those averments being
the only matter in issue, they are necessarily of the
very substance of the plea. The decree if obtained
by fraud would be no bar ; and nothing can be in
issue on a plea but that which is contained in the plea;
and every charge in the bill not negatived by the plea
is taken to be true on argument of the plea. If there-
fore the decree merely were pleaded, on argument of
the plea, the charge of fraud must be taken to be true,
and the plea ought therefore to be over-ruled ; but if
on argument the plea were allowed, or if the plain-
tiff, without arguing, replied to the plea, no evidence
could be given on the charges of fraud to avoid the
plea, and the defendant proving his plea (Y/), that
is, proving the decree and nothing more, would be
entitled to have the bill dismissed at the hearing (e).

(d) Sir Joseph Jeh/ll, M. R. Cree ; if the defendant pleaded
3 P. Wms. 95. a decree binding the right, the

(e) Perhaps all the difficulties plaintiff might have replied,
which have arisen upon this that the decree had been ob-
subject have proceeded from taincd by fraud, by which the
want of attention to the form plaintiff would have admitted
of pleadings in courts of equity, that the decree was a bar, if not
especially since the disuse of capable of impeachment on the
special replications, rejoinders, ground of fraud; the defendant
sur-rejoinders, &c. When those byrejoinderwouldhave avoided
pleadings were allowed, the the charge of fraud, and sus-
plaintiff might have stated his tained the decree; and then the
case, without suggesting that issue would have been simply
it had been affected by any dc- on the fact of fraud.

11 2

244 PLEAS.

As the averments negativing the charges of fraud
are used merely to put the fact of fraud, as alleged
by the bill, in issue on the plea, they may be ex-
pressed in the most general terms, provided they are
sufficient to put the charges of fraud contained in
the bill fully in issue. And as the plaintiff is en-
titled to have the answer of the defendant upon oath
to any matter in dispute between them, in aid of
proof of the case made by the bill, the defendant
must answer to the facts of fraud alleged in the bill
so fully as to leave no doubt in the mind of the court
that upon that answer, if not controverted by evi-
dence on the part of the plaintiff, the fact of fraud
could not be established (f). If the answer should
not be full in all material points, the court may pre-
sume that the fact of fraud may be capable of proof
in the point not fully answered, and may therefore
not deem the answer sufficient to support the plea
as conclusive, and therefore may over-rule the plea
absolutely, or only as an immediate bar, saving the
benefit of it to the hearing of the cause. But though
the answer may be deemed sufficient to support the
plea upon argument, the plaintiff may except to the
answer if he conceives it not to be so full to all
the charges as to be free from exception; or by

If) It seems to have been is no part of the defence ; but

imagined that there was some- that evidence which the plaintiff

thing incongruous in a plea, and has a right to require, and to

answer in support of the plea, use to invalidate the defence

6 Ves. 597. But this objec- made by the plea, upon argu-

tion seems to have arisen from ment of the plea, before other

a supposition that the answer evidence can be given,
formed part of the defence. It

PLEAS. 245

amending his bill may require an answer to any
matter which may not have been so extensively stated
or interrogated to as the case would warrant ; or
to which he may apprehend that the answer, though
full in terms, may have been in effect evasive.

As the bill must be founded on the supposition
that the plaintiff's title is not concluded by the
decree, and the plea on the contrary supposition,
the effect of the plea is, to conclude the whole case
made by the bill, so far as it may be concluded by
the decree, except the question of fraud ; and con-
sequently all the questions which might have been
raised, if the decree had not been made, are put by
the plea, if allowed, wholly out of the cause, unless
the plea should be shown to be false in fact by evi-
dence given on the issue taken upon it, and the matter
of the plea thus opened upon the hearing. It is there-
fore a mistake to suppose that the plea, if sustained,
would not shorten the cause, or lessen expense (g).

As the ground of this defence by plea of a decree

is that the matter has been already decided, a decree

of any court of equity, in its nature final, or made so

by subsequent order, may be pleaded in bar of a

new suit(//).

( g) The argument which is pleas of legal bars sought to
contained in the few preceding be set aside upon equitable
pages of the text, and the note grounds, with reference to which
thereto, has been adopted and they have been respectively de-
established by decided cases ; termined. See, however here,
but these not relating to de- 2 Ves. & B. 364. 6 Madd. 64,
crees, they will be adduced and 2 Sim. & Stu. 279.
hereafter in illustration of the (h) Geale v. Wyntour, Bunb.
doctrines relating to the several 311. Wing y. Wing, 10 Mod-

R 3

246 PLEAS.

2. Another suit depending in the same or another
court of equity for the same cause (i) is a good
plea (A) ; except, perhaps, in the case of a suit de-
pend! 1:^ in an inferior court of equity, the effect of
which the defendant has avoided by going out of
the jurisdiction of that court (/). The plea must
aver that the second suit is for the same matter as
the first ; and therefore a plea which did not ex-
pressly aver this, though it stated matter tending to
show it, was considered as bad in point of form, and
over-ruled upon argument (ni). The plea must also

102. Anon. Mos. 268. Prit- same, it may be pleaded for
man v. Pritman, 1 Vern. the purpose of obtaining a
310. Fitzgerald v. Fitzgerald, reference to a Master, to inquire
5 Bro. P. C. 567. Toml. Ed. whether the suits are for the
but, as to the authority of this same matter, see Murray v.
particular case, except in prin- Shadzvell, 1 7 Ves. 353, and of
ciple, see stat. 23 Geo. 3, c. 28, getting a decision, upon his
and stat. 39 & 40 Geo. 3, c. report of the fact, as to the
67. art. 8. See also Pitcher v. validity of the plea, and conse-
Rigby, 9 Pri. Ex. R. 79. quently a determination of the

(i) Ord. in Cha. Ed. Bea. question whether the plaintiff

should or should not be
allowed to proceed in the suit
in which the plea has been
filed. Barnard, 85. And see
on this subject generally, Urlin
v. , 1 Vern. 332. 1 Ves.

26. 176. Crofts v. Worthy ;
1 Ca. in Cha. 241. Foster v.
Vassall, 3 Atk. 587. Bell v.
Read, ibid. 590. Murray v.
Shadxvell, 17 Ves. 353.

(k) It seems, that the pen-
dency of another suit for the
same cause, in a court of con-
current equity jurisdiction, can-
not, before a decree has been
made in such other suit, be
pleaded in bar, see Houlditch v.
Marquis of Donegal!, 1 Sim. &
Stu. 491 ; but, that where the
parties in both courts are the

545. Daniel v. Mitchell, 3 Bro.
C. C. 544. Anon. 1 Ves.
jun. 484. 2 Ves. & B. 110.
Jacksonv. Leaf, 1 Jac. & W. 229.

(I) See Morgan v. ,

1 Atk. 408. See also Foster
v. Vassall, 3 Atk. 587, and Lord
Dillon v. Alvares, 4 Ves. 357.

(»?) Devie against Lord

PLEAS. 247

aver that there have been proceedings in the suit, as
appearance, or process requiring- appearance at the
least (n). It seems likewise regular to aver that the
suit is still depending (0) ; though as a plea of this
nature is not usually argued, but being clearly a
good plea if true, is referred to the examination and
inquiry of one of the Masters of the court as to the
fact(/>), it has been held that a positive averment
that the former suit is depending is not necessary (q).
And if the plaintiff sets down the plea to be argued,
he admits the truth of the plea that a former suit
for the same matter is depending, and the plea
must therefore be allowed (r) unless it is defective
in form (s). As the pendency of the former suit,
unless admitted by the plaintiff, is made the imme-
diate subject of inquiry by one of the Masters, a plea
of this kind is not put in upon oath (t).

Broivnloiv, in Chan. 23d July order of reference to a Master

1783, rep. Dick. 611. to inquire into the truth of it.

(n) Anon. 1 Vern. 318. Moor Ord. in Cha. Ed. Bea. 176,

v. Welsh Copper Comp. 1 Eq. 177.. Baker v. Bird, 2 Ves.

Ca. Ab. 39. jun.672. Murray v. Shadwell,

(0) 3 Atk. 589. 17 Ves. 353. 2 Ves. & Bea.

(p) Ord. in Ch. Ed. Bea. 110. Carivick v. Young,

176,177. 2 Ves. & Bea. 110. 2 Swanst. 239. Carrick v.

(q) JJrlin v. , l Vern. Young, 4 Madd. 437. See

332. 3 Atk. 589, as to defects in

(r) 1 Vern. 332. Anon. 1 Ves. the form of such a plea,

jun. 484. Daniel v. Mitchell, (t) 1 Vern. 332. This how-

3 Bro. C. C. 544. ever can scarcely be deemed

(s) This is founded on a ge- to extend to a case of a suit

neral order of the Court, that depending in a foreign court,

the plaintiff shall not be put to And see Foster v. Vassall,

argue such a plea, but may ob- 3 Atk. 587.
tain, in the first instance, an

R 4

24$ PLEAS.

It is not necessary to the sufficiency of the plea
that the former suit should be precisely between the
same parties as the latter. For if a man institutes a
suit, and afterwards sells part of the property in
question to another, who files an original bill touch-
ing the part so purchased by him, a plea of the
former suit depending touching the whole property
will hold (u). So where one part-owner of a ship
filed a bill against the husband for an account, and
afterwards the same part-owner and the rest of the
owners filed a bill for the same purpose, the pen-
dency of the first suit was held a good plea to the
last (.!'); for though the first bill was insufficient for
want of parties, yet by the second bill the defendant
was doubly vexed for the same cause. The course
which the Court has taken where the second bill has
appeared to embrace the whole subject in dispute
more completely than the first, has been to dismiss
the first bill with costs, and to direct the defendant in
the second cause to answer upon being paid the costs
of a plea allowed ( j/), which puts the case on the
second bill in the same situation as it would have
been in if the first bill had been dismissed before
filing the second. Where a second bill is brought by
the same person for the same purpose, but in a dif-
ferent right, as where the executor of an administra-
tor brought a bill, conceiving himself to be the per-
sonal representative of the intestate, and afterwards

(?/) Moor v. Welsh Copper (y) Crofts v. Worthy, l Ca,

Comp. i Eq. Ca. Ab. 39. in Cha. 241.

(x) Durancl v. Hutchinson,
Mich, 1771, in Chan.

PLEAS. 249

procured administration de bonis non, and brought
another bill (*), the pendency of the former bill is not
a good plea. The reason of this determination seems
to have been, that the first bill being wholly irregular
the plaintiff could have no benefit from it, and it
might have been dismissed upon demurrer. Where
a decree is made upon a bill brought by a creditor
on behalf of himself and all other creditors of the
same person, and another creditor comes in before
the Master to take the benefit of the decree, and
proves his debt, and then files a bill on behalf of
himself and the other creditors, the defendants may
plead the pendency of the former suit ; for a man
coming under a decree is quasi a party (a). The
proper way for a creditor in such a situation to pro-
ceed, if the plaintiff in the original suit is dilatory,
is by application to the Court for liberty to conduct
the cause (b).

If a plaintiff sues a defendant at the same time
for the same cause at common law and in equity, the
defendant after answer put in(c) may apply to the
Court that the plaintiff may make his election where
he will proceed (d), but cannot plead the pendency of

(z) Huggins v. York Build-
Comp. 2 Atk. 44.

(a) Neve v. Weston, 3 Atk.
557. 1 Sim. & Stu. 3G1.

(b) See Powell \. Wallworih,
2 Madd. R. 183. Sims v.
Ridge, 3 Meriv. 458. Ed-
munds v. Acland, 5 Madd. 31.
Tleming v. Prior, 5 Madd. 423.
Ilandford v. Storie, 2 Sim. &
Stu. 19G.

(c) 3 P. Wms. 90. 1 Ball
& B. 119. 319. Fisher v. Mee>
3 Meriv. 45. Hogue v. Curtis,
1 Jae. & W. 449. Browne
v. Poyntz, 3 Madd. 24. Coup-
land v. Bradock, 5 Madd. 14.

(d) 3 P, Wms. 90. Anon.
1 Ves. jun. 91. 1 Ball &c
B. 320. Pieters v. Thomp-
son, Coop. R. 294. But there
is a distinction in the practice

250 PLEAS.

the suit at common law in bar of the suit in equity (e)y
though the practice was formerly otherwise (/"). If
the plaintiff shall elect to proceed in equity, the Court
Will restrain his proceedings at law by injunction, and
if he shall elect to proceed at law the bill will be dis-
missed^). But if he should fail at law, this dis-
mission of his bill will be no bar to his bringing a
new bill (h).

Pleas in bar of matters of record, or of matters
in the nature of matters of record, in some court not
being a court of equity, may be 1 , a fine, 2, a re-
covery, 3, a judgment at law, or sentence of some
other court.

1 . A plea of a fine and non-claim, though a legal

where the Court is unable latter ; by instituting the suit in

at once to see that it is a this Court, he concludes hira-

case of election. See Boyd v. self from proceeding at Law,

Heinzelman, 1 Ves. & B. 381. and therefore of course is not

2 Ves. &B. 110. Mills v. Fry, entitled to the privilege of

3 Ves. & B. 9,(1814). election. Mills v. Fry, 19 Ves.

v. , 2 Madd. It. 395. 277 (1815).

Amory v. Brodrick, 1 Jac. R. (e) 3 P. Wms. 90. And it

530, and the cases therein should seem th pendency of

cited. In the instance of a a suit in an ecclesiastical court,

mortgagee taking the usual for payment of a legacy, could

bond for re-payment of the not be pleaded to a bill for simi-

mortgage-money, he is not lar relief here. Howell v. Wal-

bound to elect, but may pro- dron, 1 Ca. in Cha. 85.

ceed, under certain restrictions, if) Ord. in Cha. Ed. Bea.

upon his separate securities at *77*

Law and in Equity. Schoolev. (g) 3 P. Wms. 90, note.

Sail, 1 Sch. & Lefr. 176. But Mousley v. Basnett, 1 Ves. &

where the plaintiff sues in both B. 382, note. Fitzgerald v.

jurisdictions in an individual Sucomb, 2 Atk. 85.

character, and can have in the (h) Countess of Plymouth

former, only a part of the re- v. Bladon, 2 Vern. 32.
lief which he can obtain in the

PLEAS. 251

bar, yet is equally good in equity (i) provided it is
pleaded with proper averments (A1). Where a title
is merely legal, though the defect is apparent upon
the face of the deeds, yet the fine will be a bar in
equity ; and a purchaser will not be affected with
notice so as to make him a trustee for the person
who had the right. For a defect upon the face of
title-deeds is often the occasion of a fine being
levied (/). And even a fine levied upon bare pos-
session, with non-claim, may be a bar in equity, if a
legal bar, though with notice at the time the fine was
levied (m). But with respect to equitable titles there
is a distinction. For where the equity charges the
lands only, the fine bars (ft), but where it charges the
person only in respect of the land (0), the fine does not
bar ( p). Therefore if a man purchases from a trustee,
and levies a fine, he stands in the place of the seller,
and is as much a trustee as the seller was (r), pro-
vided he has notice of the trust, or is a purchaser
without consideration ($). So if the grantee of a

(i) Thynne v. Toivnscnd, W '. (I) 2 Atk. 631.

Jones, 416. Salisbury x. Bag- (m) Brereton v. Gamut,

g-0MCa.inCha.278. 2 Swanst. 2 Atk. 240.

610. Watkins v. Stone, 2 Sim. (n) Giffbrd v. Phillips, cited

& Stu, 560. 2 Swanst. 612.

(k) Story v. Lord Windsor, (0) Earl Kenoul v. Grevil,

2 Atk. 630. Hildyardv.Cressy, cited 2 Swanst. 611. S. C.

3 Atk. 303. Page v. Lever, 1 Ca. in Cha. 295.

2 Ves. jun. 450. Butler v. (p) 1 Ca. in Cha. 278.
Every, 1 Ves. jun. 136. S. C. 2 Swanst. 611 ; and see 2 Atk.

3 Bro. C. C. 80. Dobson v. 390. 1 Sch. & Left. 381.
Leadbeater, 13 Ves. 230. The (r) 2 Atk. G31. Kennedy
object of the averments is of v. Daly, 1 Sch. & Lefr. 355.
course to show that it was an (s) Gilb. For. Rom. 6-2.
effectual fine, 13 Ves. 233. Boxy v. Smith, 2 Ca. in Cha.

2$2 PLEAS,

mortgagee levies a fine, that will not discharge the
equity of redemption (/). But there are cases of
equitable as well as of legal titles, in which a fine
and non-claim will bar, notwithstanding notice at
the time of levying the fine(w). It has been de-
termined, however, that if a fine is levied where
the legal estate is in trustees for an infant, and the
trustees neglect to claim, the infant, claiming by bill
within five years after he attains twenty-one, shall
not be barred (V). But perhaps this should be under-
stood as referring to the case of a fine levied with
notice of the title of the infant ( y). Where a title to
lands is merely equitable, as in the case of an agree-
ment to settle lands to particular uses, claim to avoid
the fine must be by subpcena (z). The pendency of a
suit in equity will therefore in equity prevent in
many cases the running of a fine (a). Upon the
whole, wherever a person comes in by a title oppo-
site to the title to a trust estate (b), or comes in under
the title to the trust, estate, for a valuable considera-

124. S. C. 1 Vern. 60, and tess of Huntingdom, ibid. 310,

1 Vern. 84 ; on rehearing, see note G.

1 Vern. 144, the decree was (z) Salisbury v. Baggott, iCa.
reversed : but see 1 Sch. & in Cha. 278. S. C. 2 Freem.
Lefr. 379, 380. 21, and more accurately re-

(t) 2 Atk. 631. Contra, ported, from Lord Notting-

2 Freem. 21. 69; but see ham's MSS. 2 Swanst. 603.

1 Sch. & Lefr. 378. 380. (a) 2 Atk. 389, 390. Pincke

(u) 2 Atk. C31. Hildyard v. Thornycrqft, 1 Bro. C. C.

v. Cressy, 3 Atk. 303. Shields 289. S. C. 4 Bro. P. C. 92,

v. Atkins, 3 Atk. 560. Toml. Ed. 1 Sch. & Lefr. 432.

(x) Allen v. Sayer, 2 Vern. (b) Stoughtonv.Onsloiv, cited

368. 2 Swanst. 615 ; and 1 Freem.

(y) Wych v. E. I. Comp. jgll.

3 P. Wms. 309. Earlv. Coun~

PLEAS. 253

lion, without fraud, or notice of fraud, or of the trust(c) ;
a fine and non-claim may be set up as a bar to the
claim of a trust (7/). When a fine and non-claim are
set up as a bar to a claim of a trust, by a person
claiming under the same title, it is not sufficient to
aver that at the time the fine was levied the seller of
the estate, being seised, or pretending to be seised,
conveyed ; but it is necessary to aver that the seller
was actually seised. It is not, indeed, requisite to
aver, that the seller was seised in fee; an averment
that he was seised ut de liber 0 tenemento, and being
so seised a fine was levied, will be sufficient (e). A
fine and non-claim may be pleaded in bar to a bill of
review (f).

2. To a claim under an entail, a recovery duly
suffered, with the deed to lead the uses of that re-
covery, may be pleaded, if the estate limited to
the plaintiff, or under which he claims, is thereby
destroyed (o).

3. If the judgment of a court of ordinary juris-
diction has finally determined the rights of the parties,
the judgment may in general be pleaded in bar of a
bill in equity (h). Thus where a bill was brought by a

(d) Gilb. For. Rom. 63.

(e) 2 Atk. C30. 2 Sch. &
Lefr. 99. And see the cases
cited above, p. 251, note (k).

{/) Lingard v. Griffin, 2
Vern. 189.

(g) Att. Gen. v. Sutton, 1 P.
Wms. 754. Salkcld against

Salkeld, 17C3, before Lord
Northington. Broton v. Wil-
liamson, Trin. 1772, before
Lord Bathurst.

(//) See Throckmorton v.
Finch, 4 Co. Inst. 86. S. C
cited also in a Tract published
at end of 1 Rep. in Cha. on
Jurisd. of the Court of Cha.

254 PLEAS.

person claiming to be son and heir of Joscelin earl of
Leicester, and alleged that the earl, being tenant
in tail of estates, had suffered a recovery, and had
declared the use to himself and a trustee in fee, and
that the plaintiff had brought a writ of right to re-
cover the lands, but the defendant had possession of
the title-deeds, and intended to set up the legal
estate which was vested in the trustee, and prayed a
discovery of the deeds, and that the defendant might
be restrained from setting up the estate in the trustee,
the defendant pleaded, as to the discovery of the
deeds and relief, judgment in her favour in the writ
of right ; and averred that the title in the trustee,
which the bill sought to have removed, had not been
given in evidence : and the plea was allowed (i).
In this case the bill was brought before the trial in the
writ of right, and the plaintiff had proceeded to trial
without the discovery and relief sought by his bill
for the purposes of the trial. The plea was subse-
quent to the judgment. It may be doubted there-
fore whether the averment that the title in the trustee
had not been given in evidence on the trial of the
writ of right was necessary, as the judgment was a
bar, as a release subsequent to the filing of the bill

Hunby v. Johnson, 1 Rep. in Penvitt v. Lus combe (1728) rep.

Cha. 243. Bluck v. Elliot, 2 Jac. & W. 201. 3 Bro.

Finch R. 13. Pitt v. Hill, C. C. 72. 1 Sch. & Lefr. 204.

Finch R. 70. Temple v. Bal- Ord. in Cha. 19, Ed. Bea.
tinglass, Finch R. 275. Cor- (i) Sidney, styling himself

nell v. Ward, Finch R. 239. earl of Leicester, against Perry,

Wilcox v. Sturt, 1 Vern. 77. in Chan. 23d July 1783.
Bissell v. Axtell, 2 Vern. 47.

PLEAS. 255

would have been ; and if the plaintiff could have
avoided the effect of the judgment because the title
in the trustee had been given in evidence, it should
seem that that fact, together with the fact of the
judgment, ought to have been brought before the
court by another bill in the nature of a bill for a
new trial, either as a supplemental bill, or as an
original bill, the former bill being dismissed (k).

To a bill to set aside a judgment, as obtained
against conscience (/), the defendant has been per-
mitted to plead the verdict and judgment in bar(w);
but it may be doubted whether in this case the de-
fendant might not have demurred to the bill, as
there does not appear to have been any charge in the
bill requiring averment to support the plea. A sen-
tence of any (n), even a foreign court (0), may be a

(k) Respecting the dispute 223. And see Seivel v. Free-
in the time of Lord Ellesmere, ston, 1 Ca. in Cha. 65. Shuter
raised by Lord Coke, upon the v. Gilliard, 2 Ca. in Cha. 250.
question whether a Court of Armsted v. Parker, Finch R.
Equity could give relief after 171. Huddl&stone v. Asbugg,
a judgment at Law, see Finch R. 171. Anon. 3 Rep.
3 Blackst. Coram, p. 54. Gilb. in Cha. 25.
For. Rom. 56 ; and the Tract (n) See the cases referred to
on the Jurisdiction of the Court page 253, note (//.).
of Chancery, comprising the (0) See Neivland v. Horse-
Order of the King (James the man, 1 Vern. 21. S. C. 2 Ca.
1st), on the subject published in Cha. 74. Burrotvs v. Jemi-
at the end of 1 Rep. in Cha. neau, Sel. Ca. in Cha. 69.
Ed. 1715, and that Order at S. C. Mos. 1, Dick. 48. Gage
end of Cary's Reports, Ed. v. Bulkeley, 3 Atk. 215. S. C.
l650. 2 Vez. 556. White v. Hall,

(I) 2 Ves. jun. 135. 12 Ves. 320.

(m) Williams v. Lee, 3 Atk.

256 PLEAS.

proper defence by way of plea ; but the Court pro-
nouncing the sentence must at least have had full
jurisdiction to determine the rights of the parties (p).
If there is any charge of fraud, or other circum-
stance shown as a ground for relief, the judgment or
sentence cannot be pleaded (q), unless the fraud, or
other circumstance, the ground upon which the judg-
ment or sentence is sought to be impeached, be denied,
and thus put in issue by the plea, and the plea sup-
ported by a full answer to the charge in the bill(r).
Upon this principle the court of Exchequer determined
upon a bill brought by insurers of part of the pro-
perty taken on board the Spanish ships at Omoa.
The bill charged that the navy, on whose behalf, as
captors, the defendants had insured, were not the
real captors, or not the only captors ; that the Spanish
ships struck to the land-forces; and that although
the court of Admiralty had condemned the ships
taken as prizes to the navy, yet that condemnation
had been obtained in consequence of the King's pro-
curator-general having withdrawn a claim made on
behalf of the Crown at the instance of the land-forces,
and of an agreement between the sea and land-
forces to make a division of the treasure ; and that
the sentence was therefore, as against the plaintiffs,
the insurers, not conclusive. The defendants pleaded

(p) Gage v. Bulkeley, 2 Atk. Rep. ; and see 2 Ves. jun. 135.

215. (r) 6 Ves. 596. As to the

(q) See 2 Ca. in Cha. 251 ; and necessity of these averments in

see the Tract and Order refer- the plea, and the support of the

red to in last page at the end of plea by answer, see p. 239

1 Rep. in Cha. and of Cary's et seq.

PLKAS. 257

the sentence of the Admiralty, both to discovery of
the facts stated in the bill, and to the relief
prayed. The plea was in many respects informal,
but the Court was of opinion that the sentence thus
impeached could not be pleaded in bar to the dis-
covery sought by the bill, and that as a bar to relief
it ought to have been supported by averments nega-
tiving the grounds on which it was impeached by the
bill 0).

A will, and probate even in the common form, in
the proper ecclesiastical court, which is in the nature
of a sentence (t), is a good plea to a bill by persons
claiming as next of kin to a person supposed to have
died intestate (u). And if fraud in obtaining the
will is charged that is not a sufficient equitable
ground to impeach the probate ; for the parties may
resort to the ecclesiastical court, which is competent
to determine upon the question of fraud (v). But
where the fraud practised has not gone to the whole
will, but only to some particular clause, or if
fraud has been practised to obtain the consent of
next of kin to the probate (3/), the courts of equity have

(s) Parkinson against Lecras,
23d Feb. 1781.
(/) See 1 Atk. 516.
(u) Jauncy v. Sealey, 1 Vera.

397-

(x) Archer v. Mosse, 2 Vern.
8. Nelson v. Oldjield, 2 Vein.
7<>. Alt. Gen. v. Ryder, 2 Ca.
in Cha. 178. Plume v. Beetle,
1 P. Wins. 388. 2 P. Wins.
287. 2 Atk. 324. Kerrick v.

Brarisby, 7 Bro. P. C. 437.
Total. Ed. Meadows v. Du-
chess of Kington, Mich. 1777,
reported Ambl. 75G. 5 Ves.
C47. Griffiths v. Hamilton,
12 Ves. 298.

(y) As to the kind of relief
which may be given where a
probate has been obtained by
fraud, see Barnes/y v. Poivel,
1 Vez. 284.

25§ PLEAS.

laid hold of these circumstances to declare the exe-
cutor a trustee for the next of kin (3/). Where there
are no such circumstances the probate of the will is
a clear bar to a demand of personal estate (z) ; and
where a testator died in a foreign country, and left
no goods in any other country, probate of his will
according to the law of that country was determined
to be sufficient against an administration obtained in
England (a).

Pleas in bar of matters in pais only, sometimes
go both to the discovery sought, and to the relief
prayed by the bill, or by some part of it ; sometimes
only to the discovery, or part of the discovery ; and
sometimes only to the relief, or part of the relief.

Pleas of this nature (which may go both to the
discovery and relief sought by the bill, or by some
part thereof, but which sometimes extend no farther
than the relief) are principally: 1, A plea of a stated
account; 2, Of an award ; 3, A release ; 4, Of a will
or conveyance, or some instrument controlling or
affecting the rights of the parties ; 5, A plea of any
statute which may create a bar to the plaintiff's de-
mand, as the statute for prevention of frauds and
perjuries, or the statutes for limitation of actions,
which may be considered as a plea of matter in pais;
for though the statute itself is usually set forth in the
plea, yet that perhaps is unnecessary, and the sub-

(y) Mar riot v. Mar riot, in (z) 12 Yes. 307.

Exch. 1 Stra 666, and argu- () j y> g ; y^

ment of Ld. Ch. Baron Gilbert. w ,y ■*'

Gilb. Ca. in Cha. 203. Ambl. 397-
762, 763.

PLEAS. 2,59

stance of the plea consists in the averment of matter
necessary to bring the case within the particular sta-
tute ; and therefore if those matters appeared on the
face of the bill itself it may be presumed a demurrer
would hold, though this has been doubted.

1 . A plea of a stated account is a good bar to a
bill for an account (b). It must show that the ac-
count was in writing, or at least it must set forth
the balance (c). If the bill charges that the plaintiff
has no counterpart of the account, the account should
be annexed by way of schedule to the answer, that
if there are any errors upon the face of it the plain-
tiff may have an opportunity of pointing them out (d).
If error (e) or fraud (f) are charged (g) they must

(b) Anon. 2 Freem. 62. 1
Vern. 180. Datvso?i v. Dawson,

1 Atk. 1. Sumner v. Thorpe,

2 Atk. 1. Penvil v. Luscombe,
(1728) rep. 2 Jac. & W. 201.

Irvine v. Young, 1 Sim. & Stu.

333-

(d) Hankey v. Simpson, 3
Atk. 303.

(e) On the subject of this
Court's interference, where there
is error in a settled account, see
Anon. 2 Freem. 62 . Proud v.
Combes, 2 Freem. 183. S. C.

3 Rep. in Cha. 18, 1 Ca. in
Cha. 55, 2 Freem. 183, Nels.
100, & 1 Eq. Ca. Ab. 12.
Wright v. Coxon, 1 Ca. in Cha.
262. Bedellv. Bedell, Finch R. 5.
Daivson v. Daxvson, 1 Atk. 1.

Bourke v. Bridgeman, 1 Bar-
nard, 272. Roberts v. Kuffin,
2 Atk. 112. Pit v. Cholmon-
deley, 2 Vez. 565. Johnson
v. Curtis, 3 Bro. C. C. 266.
Gray v. Minnethorpe, 3 Ves.
103. Lord ' Hardivicfox. Ver-
non, 4 Ves. 411. 5 Ves. 837.
Kinsman v. Barker, 14 Ves. 262.
(f) As to its interference where
the settlement of an account has
been accompanied with fraud,
see Vernon v. Vawdry, 2 Atk.
119. Nevoman v. Payne, 2 Ves.
jun. 199. Wharton v. May,
5 Ves. 27. Beaumont v. Boult-
bee, 5 Ves. 485. S. C. 7 Ves.
599. 11 Ves. 358. Langstaffev.
Taylor, 14 Ves. 2G2. Drexo v.
Power, 1 Sch. & Lefr. 182.
(o) 9 Ves. 265,266.

S 2

260 PLEAS.

be denied by the plea as well as by way of an-
swer (Ji) ; and if neither error nor fraud is charged,
the defendant must by the plea aver that the stated
account is just and true to the best of his knowledge
and belief (i). The delivery up of vouchers at the
time the account was stated seems to be a proper
averment in a plea of this nature (k), if the fact was
such (/).

2. An award may be pleaded to a bill to set aside
the award and open the account (m) ; and it is not
only good to the merits of the case, but likewise to
the discovery sought by the bill (n). But if fraud
or partiality are charged against the arbitrators (o),
(h) Gilb. For. Rom. 56. of Clarke v. Earl of Ormonde,

1 Ca. in Cha. 299. 2 Freem.
62. 6 Ves. 596. Clarke v.
Earl of Ormonde, 1 Jac. R.
116. And, it seems, if the
plaintiff allege that he has no
counterpart of the stated ac-
count, the defendant must an-
nex a copy thereof to his plea,
Hahkey v. Simpson, 3 Atk. 303.
And see above, p. 239, et seq.

(i) 3 Atk. 70. 1 Eq. Ca. Ab.
39. 2 Sch. & Lefr. 727. And
see Matthews v. Walivyn,
4 Ves. 118. Middleditch v.
Sharland, 5 Ves. 87.

(k) Gilb. For. Rom. 57.
Walker v. Consett, Forrest's
Exch. R. 157. Hodder v.
IVatts, 4 Pri. Exch. R. 8.
And see Wharton v. May, 5
Ves. 27.

(I) 2 Atk. 252. See the case

1 Jac. R. 116.

(m) Lingood v. Croucher,

2 Atk. 395. Lingood v. Eade,
S. C. 2 Atk. 501. Burton
v. Ellington, 3 Bro. C. C. 196.

(n) Tittenson v. Peat, 3 Atk.
529. Anon. 3 Atk. 644. As
to plea of an award under an
agreement to refer the matters
in dispute to arbitration, entered
into after bill filed, see Dryden
v. Robinson, 2 Sim. & Stu. 529 ;
and see Rotve v. Wood, 1 Jac. &
W. 348. S. C. 2 Bligh P. C. 595.

(0) As instances see Ward
v. Periam, cited 2 Atk. 396.
2 Vez. 316. S. C. reported
1 Turn. R. 131, note. Chicot
v. Leqnesne, 2 Vez. 315. 2 Ves.
jun. 1 35. Reynell v. Luscombe,
1 Turn. R..!35- n« Goodman
v. Shyers, 2 Jac. & W. 249.

PLEAS.

26l

those charges must not only be denied by way of
averment in the plea, but the plea must be sup-
ported by an answer showing the arbitrators to
have been incorrupt and impartial (g) ; and any
other matter stated in the bill as a ground for im-
peaching the award must be denied in the same
manner.

3. If the plaintiff, or a person under whom he
claims, has released the subject of his demand, the
defendant may plead the release in bar of the bill (/•),
and this will apply to a bill praying that the release
may be set aside (i). In a plea of a release the
defendant must set out the consideration upon which
the release was made (f). A plea of a release there-
fore cannot extend to a discovery of the consideration ;

Auriol v. Smith, 1 Turn. R.
.121. Damson v. Sadler, 1 Sim.
& Stu. 537.

(y) 2 Atk. 39G. 6 Ves.
594. 596. 2 Ves. & B. 3G4 ;
and see Allardes v. Campbell,
reported 1 Turn. 133, note.
S. C. Bunb. 265. Rybott v.
Barrett, 2 Eden 11. 131.

(r) Botverx. Sivadlin, 1 Atk.
294. Taunton v. Pepler,
6 Madd. 166. Clarke v. Earl
of Ormonde, 1 Jac. R. 116.
And see Roche v. Morgett,
,2 Sch. & Lefr. 721.

(s) Pusey v. Desbouveric,
3 P. Wins. 315. And with
regard to this latter proposition,
it may be remarked, that it is

in like manner necessary that
the defendant should deny
the equitable circumstances
charged for the purpose of im-
peaching the release, by aver-
ments in his plea, and by an
answer to the same effect,
Lloyd v. Smith, 1 Anstr. Exch.
R. 258. Frceland v. Johnson,

1 Anstr. Ex. R. 276. Waller
v. Glanville, 5 Bro. P. C. 555.
Tonal. Ed. 2 Sch. & Left. 727.
C Madd. 64. 2 Sim. & Stu.

279-

(t) Gilb. For. Rom. 57.
Griffith v. Manser, Hardr. 168.

2 Sch. & Lefr. 728 ; and see
Walter v. Glanville, 5 Bro.
P. C. 555- Toml. Ed.

s 3

202 PLEAS.

and if that is impeached by the bill, the plea must be
assisted by averments covering the grounds on which
the consideration is so impeached. Thus, to a bill
stating various transactions between the defendant and
the testator of the plaintiff, and imputing to those
transactions fraud and unfair dealing on the part of
the defendant, and impeaching accounts of the trans-
actions delivered by the defendant to the testator on
the ground of errors, omissions, unfair and false charges,
and also impeaching a purchase of an estate conveyed
by the testator to the defendant in consideration of
part of the defendant's alleged demands, and praying
a general account, and that the purchase of the estate
might be set aside as fraudulently obtained, and the
conveyance might stand as a security only for what
was justly due from the testator's estate to the de-
fendant ; a plea of a deed of mutual release, extend-
ing to so much of the bill as sought a discovery, and
prayed an account of dealings and transactions prior
to and upon the day of the date of the deed of re-
lease, and all relief and discovery grounded there-
upon, and stating the deed to have been founded
on a general settlement of accounts on that day,
and to have excepted securities then given to the
defendant for the balance of those accounts which
was in his favour, and averring only that the deed
had been prepared and executed without any fraud
or undue practice on the part of the defendant, was
over-ruled. The consideration for the instrument
was the general settlement of accounts ; and if those
accounts were liable to the imputations cast upon

PLEAS- 263

them by the bill (w), the release was not a fair trans-
action, and ought not to preclude the Court from
decreeing a new account. The plea therefore could not
be allowed to cover a discovery tending to impeach
those accounts, and the fairness of the settled accounts
was not put in issue by the plea, or supported by an
answer denying the imputations charged in the bill.
The plea indeed was defective in many other particu-
lars, necessary to support it against the charges in the
bill ; and to some parts of the case made by the bill the
release did not extend (V). A release pleaded to a bill
for an account must be under seal (3/); a release not
under seal must be pleaded as a stated account only(s).
4. To a bill brought upon a ground of equity by
an heir at law against a devisee, to turn the devisee
out of possession, the devisee may plead the will, and
that it was duly executed (a). But in cases of this
kind where the bill has also prayed a receiver, a plea
extending to that part of the bill has been so far over-
ruled, as it might be necessary for the Court in the
progress of the cause to appoint a receiver (b). Upon
a bill filed by an heir against a person claiming under

(u) Though an account be (z) Gilb. For. Rom. 57.

stated under hand and seal, yet (fl) Amn> g Atk# , ^ Amti$

if there appear any mistake v Dowsingy cited 2 Vez. 361.

in it the Court will relieve. Mcadows v. Duch.0f Kingston,

See the cases cited above, 259, Mich. i777, reported Ambl.

note (e). n a. «, Meriv. 171

(x) Roche v. Morgell, 2 Sch. 75b* 3 iVieriV* *71"
&Lefr. 721. {b) Anon. 3 Atk. 17, and

y) But it need not be Meadows v. Duch. of Kingston.

signed. Taunton v. Pepkr, But see 2 Vez. 362, 363.
6 Madd. 166.

S 4

264 PLEAS.

a conveyance from the ancestor, the defendant may
plead the conveyance in bar of the suit. To a bill
by one partner in trade against his copartner for
discovery and relief relative to the partnership
transactions, a plea of the articles of partnership,
by which it was agreed that all differences which
might arise between the partners should be referred
to arbitration, and that no suit should be instituted
in law or equity until an offer should have been
made to leave the matter in difference to arbitra-
tion, and that offer had been refused, has been al-
lowed (c). This case has been much questioned ;
and it now seems to be determined that such an
agreement cannot be pleaded in a bar of suit (d), nor
will the Court compel a specific performance of the
agreement (e). Indeed it seems impossible to main-
tain that such a contract should be specifically per-
formed, or bar a suit, unless the parties had first
agreed upon the previous question, what were the
matters in difference, and upon the powers to be
given to the arbitrators, amongst which the same
means of obtaining discovery upon oath, and pro-
duction of books and papers, as can be given by a
court of equity might be essential to justice. The
nomination of arbitrators also must be a subject on

(c) Half hide v. Penning, S. C. 2 Ves. jun. 129. Street
2 Bro. C. C. 336. Contra, v. Rigby, 6 Ves. jun. 815. 14
Wellington v. Mackintosh, 2 Ves. 270. Waters v. Taylor,
Atk. 569. 15 Ves. 10.

(d) Satterly v. Robinson, (e) 6 Ves. jun. 818. MUnes
Exch. 17 Dec. 1791. Michell v. Gery, 14 Ves. 400.

v. Harris, 4 Bro. C. C. 311.

PLEAS. 265

which the parties must previously agree ; for if either
party objected to the person nominated by the other,
it would be unjust to compel him to submit to the
decision of the person so objected to as a judge
chosen by himself. It must also be determined that
all the subjects of difference, whether ascertained or
not, must be fit subjects for the determination of
arbitrators, which, if any of them involved important
matter of law, they might not be deemed to be.

5. The statute for prevention of frauds and per-
juries (/") may be pleaded in bar of a suit to which
the provisions of that act apply (g). This form of
pleading generally requires negative averments to
support the defence (//). Thus, to a bill for discoveiy
and execution of a trust, the statute, with an aver-
ment that there was no declaration of trust in writing,
may be pleaded (i), though in the case cited the plea

{f) 29 Car. II. c. 3. Bowers v. Cator, 4 Ves. 91.

(g) Gilb. For. Rom. 61. 2Ves.&B.364. And where there

Bawdes v. Amhurst, Pre. in are not equitable circumstances

Cha. 402. O'Reilly v. Thomp- stated in the Bill, which might

son, 2 Cox R. 271. Gunter operate to prevent the relief

v. Halsey, Ambl. 586. Jordan sought by the plaintiff being

v. Sawlcins, 3 Bro. C. C. 388. barred by the Statute, but the

S. C. 1 Ves. jun. 402. Main agreement is alleged to have

v. Melbourn, 4 Ves. 720. As been in writing, and facts are

to the equitable grounds upon charged in evidence thereof,

which a case may be exempted negative averments are also re-

from the operation of the quisite to the defence, Evans

Statute of Frauds, see 3 Ves. v. Harris, 1 Ves. & B. 361 ;

38, note (a). and see Jones v. Davis, 16 Ves.

(h) Stewart v. Careless, cited 2C2.

2 Bro. C. C. 565. Dick. 42. (s) Cottington v. Fletcher,

Moore v. Edwards, 4 Ves. 23. 2 Atk. 156.

266 PLEAS.

was over-ruled by an answer, admitting, in effect,
the trust. To a bill for a specific performance of
agreements, the same statute, with an averment
that there was no agreement in writing signed by the
parties, has been also pleaded (A). It has been
understood that this plea extended to the discovery
of a parol agreement, as well as to the performance
of it, except where the agreement had been so far
performed that it might be deemed a fraud on the
party seeking the benefit of it, unless it was com-
pletely carried into execution (/), and cases "have been
determined accordingly (i?i). This has of late been
the subject of much discussion, and some contrariety
of decision. In one case (w) the Court appeared to
have conceived that the courts of equity in determin-
ing cases arising upon this statute had laid down two
propositions founded on rules of equity, and had
given a construction to the act accordingly, which
amounted to this, that the act was to be construed
as if there had been an express exception to the

(k) Mussell v. Cooke, Prec.
in Chan. 533. Child v. Godol-
phm, cited, 2 Bro. C. C. 566.
S. C. Dick. 39. Child v.
Comber, 3 Swanst. 423, n.
Haivkins v. Holmes, 1 P. Wms.
770. Clerk v. Wright, 1 Atk.
12.

(I) That this is the con-
struction put upon acts of part
performance, see 1 Sch. & Lefr.
41. 3 Meriv. 246. Morphett
v. Jones, 1 Swanst. 172, and

the authorities therein referred
to.

(m) Hollis v. Whiteing, lY em.
151. W holey v. Bagnal, l Bro.
P. C. 345. Toml. Ed. And
see Whitbread v. Brockhurst,

1 Bro. C. C. 404. S. C. 2 Ves.
& Bea. 153, n. Whitchureh v.
Bevis, 2 Bro. C. C. 559.

(w) Whitchurch v, Bevis, in
Ch. 8 Feb. 1786, reported

2 Bro. C. C. 559.

PLEAS. 267

extent of those rules in favour of courts of equity ;
and that no action was to be sustained except upon
an agreement in writing, signed according to the re-
quisition of the statute, and except upon bills in
equity, where the party to be charged confessed the
agreement by answer, or there was a part perform-
ance of the agreement. It was therefore determined
that to the fact of the agreement the defendant must
answer. But the Court, afterwards, upon a re-hearing,
allowed the plea (0). In subsequent cases this subject
was much discussed, and the question was particu-
larly considered, whether, if the defendant admitted
by answer the fact of a parol agreement, but insisted
on the protection of the statute, a decree could be
pronounced for performance of the agreement with-
out any other ground than the fact of the parol
agreement thus confessed. At length it seems to
have been decided, that though a parol agreement be
confessed by the defendant's answer, yet if he insists
on the protection of the statute no decree can be
made merely on the ground of that confession (p) ;
and it may now, apparently, be concluded that a
plea of the statute cannot in any case be a bar
to a discovery of the fact of an agreement; and
that as the benefit of the statute may be had if in-
sisted on by answer, there can be no use in pleading

(0) Whitchurch v . Bevis, on (;;) 1 Br0.CC.4iG. IVhit-

rehcaring, Hil. vac. 1789, prin- church x. Bevis, 2 Bro. C. C.

cipally on the authority of 559. 4 Ves.jun. 23,24. 6 Ves.

Whalcy v. BagnnI, 1 Bro. P. 37- ^ Ves. 471. 1 5 Ves.

C. 345. Toml. Ed. 375-

268 PLEAS.

it in bar of relief. Whether the same rule would be
applied to a confession of a trust by an answer,
which may be considered as a declaration of the trust
in writing, signed by the party, as indeed the con-
fession of a parol agreement by answer might also be
deemed, seems to be an important question, not agi-
tated in the cases decided with respect to other
agreements, and upon which it may be very difficult
to make a satisfactory distinction. In the cases in
which it was formerly considered that a plea of this
statute was the proper defence, it was conceived that
any matter charged by the bill which might avoid
the bar created by the statute must be denied, ge-
nerally, by way of averment in the plea, and parti-
cularly and precisely by way of answer to support
the plea. But according to one case (q), if any such
matter were charged in the bill it became impossible
to plead the statute in bar ; the Court having deter-
mined that denial of the matter so charged made the
plea double (r), and therefore informal ; and it may
now be doubtful whether a plea of the statute ought
in any case (except perhaps the case of a trust) to
extend to any discovery sought by the bill, and in-
deed whether it ought not to be deemed a needless
and vexatious proceeding if confined to relief (V).

• (q) Whitbread v. Brockhurst, or by plea, and whether neces-
1 Bro. C. C. 404. S. C. 2 Ves. sary, see Newton v. Preston,

•& B. 153, n. Pre. in Ch. 103. See also

(r) On the subject of double Kirk and Webb, Pr. in Ch. 84.

• pleas, see hereafter, pp. 295, 296. And see Roivev. Teed, 15 Ves.

(s) As to the effect of insist- 372. 18 Ves. 182. Morphett
ing on the statute by answer, v. Jones, 1 Swanst. 172.

PLEAS. 2(n)

The statute for limitation of actions (t) is likewise
a good plea (u). But if the bill charges a fraud, and
that the fraud was not discovered (.v) till within six
years before filing the bill, the statute is not a good
plea,unless the defendant denies the fraud (3/), or avers
that the fraud, if any, was discovered within six years
before filing the bill (z). And though the statute of
limitations is a bar to the claim of a debt, it was
formerly determined not to be a bar to a discovery
when the debt became due ; for if that had been set
forth it would appear to the court whether the time
limited by the statute was elapsed (a), but later de-
cisions have been to the contrary (/>). These deci-
sions are stated to have been founded on a rule
adopted of late years, that where a demurrer to re-
lief would be good, the same ground of demurrer
would extend to the discovery on which the relief
prayed was founded ; and applying this rule, origi-

(t) 21 Jac. I. c. 16. mondsell, 3 P.Wms. 143. Sut-

(u) Gilb. For. Rom. 6l. ton v. Earl of Scarborough,

Wych v. East India Comp. 9 Ves. 71. But according to

3 P. Wms. 309. Lacon v. Whit bread v. Brockhurst, 1 Bro.

Lacon, 2 Atk. 395. Earl of C. C. 404, and 2 Ves. & B.

Strafford v. Blakeway, 6 Bro. 153, n. this should be consi-

P. C. 630. Toml. Ed. Barber dered a double plea.

v. Barber, 18 Ves. 286, and the (a) Mackworth v.' Clifton,

cases therein cited. 2 Atk. 51. 2 Sch. & Lefr.

(x) See 2 Sch. & Lefr. 631 635.

and 633, and following pages, (b) Sutton v. Earl of Scar-

and the cases therein cited; borough, 9 Ves. jun 71, and

and 2 Ball & B. 118. other authorities there cited.

(y) Bicknell v. Gough, 3 Atk. And see Baillie v. Sibbald,

55%- 15 Ves. 185. Cork v. Wilcock,

(z) South Sea Comp. v. Wy- 5 Madd. 328.

2^0 PLEAS.

nally confined to demurrers, to pleas also (b). It may
be doubted whether in this extension of the rule to
pleas the difference between a plea and demurrer
has been sufficiently considered. A demurrer founds
itself on the bill, and asserts no matter of fact the
truth of which can be disputed. A plea, on the
contrary, asserts a fact the truth of which is put in
issue by the plea. When therefore the statute of
limitations is pleaded to a demand, and the question
to be tried on the issue joined upon the plea is, whe-
ther the debt became due within six years before the
filing of the bill, it is denying the plaintiff the benefit
of that discovery in aid of proof which is allowed in
all other cases, to hold that a plea of the statute of
limitations, with an averment that the cause of action,
if any, occurred six years before the filing of the bill
will be a bar to a discovery of the truth of that aver-
ment (c). In the case of money received by the de-
fendant for the use of the plaintiff, and where the
sums received, as well as the times when they were
respectively received, may rest in the knowledge of
the defendant only, it may amount to a complete
denial of justice to hold that a plea of the statute of
limitations, with such an averment, is a bar to any
discovery as to the sums received, and when received,
and of whom, and as to entries in books, and other
papers, which discovery might enable the plaintiff to

(b) See the distinction taken ported by Cork v. Wilcock,
on this subject in James v. 5 Madd. 328; and 1 Sim. &
Sadgrove, 1 Sim. & Stu. 4. Stu. 6.

PLEAS. 27t

prove the falsehood of the plea by witnesses and
production of papers, as well as by the defendant's
answer. Where a particular special promise is
charged to avoid the operation of the statute (//), the
plaintiff must deny the promise charged by averment
in the plea(e), as well as by answer to support the
plea(/). Where the demand is of any thing exe-
cutory, as a note for payment of an annuity, or
of money at a distant period, or by instalments, the
defendant must aver that the cause of action (g)
hath not accrued within six years, because the
statute bars only as to what was actually due six
years before the action brought (A). Upon a bill for
discovery of a title, charging fraud, and praying
possession, the statute of limitations alone is not a
good plea to the discovery, so far as the charge of
fraud extends, for the defendant must answer to the
charge of fraud (i), and the plea must put the fraud
in issue. The statute of limitations may be pleaded
to a bill to redeem a mortgage (k) if the mortgagee

(d) See Andrews v. Brotvn, of an intermediate acknowledg-
Pre. in Cha. 385. ment of the plaintiff's right

(e) Anon. 3 Atk. 70. Rut having been made, defeated the
this, according to Whitbread v. plea.

Brockhurst, l Bro. Ch. Ca. 404, (J) Bicknell v. Gough, 3 Atk.

would be a double plea. 558. 2 Sch. & Lef. G35.

(f) See on this subject, (A) On the question whether
Bayley v. Adams, 6 Ves. 586 ; the statute itself applies to a
5Madd.330;andiSim.&Stu.6. case of this kind, or whether

(g) 2 Strange, 1291. the rule that twenty years pos-
(h) 3 Atk. 71. See above, session by the mortgagee, sub-

p. 269, note (z). And see the ject to the usual exceptions of
case of Hony v. Hony, 1 Sim. infancy, &c. without his doing
& Stu. 568, in which the fact any act which is to be regarded

272 PLEAS.

has been in possession twenty years (/) ; and indeed
a demurrer has been allowed in this case (??i) where
the possession has appeared upon the face of the
bill (n), though some cases seem to be to the con-
trary (o). To a bill, on an equitable title to presen-
tation to a living, seeking to compel the defendant
to resign, plenarty for six months before the bill
was filed may be pleaded in bar, the statute of
Westminster the second (p) being considered for this
purpose as a statute of limitation, in bar of an equi-
table as well as of a legal right (y). But if a quare
impedit is brought before the six months are expired,
though the bill is filed after, it may be in some cases
a ground for the court to interfere (r), and consequently
plenarty would not in such cases be pleadable in bar.
The statute of limitations may also be pleaded to a bill
of revivor, if the proper representative does not pro-
ceed within six years after abatement of a suit, pro-
as an acknowledgment that the 2 Sch. & Lefr. 638. And see
relation of debtor and creditor Hodle v. Healey, 1 Ves. & B.
still subsists, has been adopted 536, and the cases therein
in courts of equity, in confor- cited.

mity with the provisions of the (n) Edsell v. Buchanan, 4

statute, see 1 Cox R. 149. Bro. C. C. 254.
2 Sch. & Lefr. 630. 632. 1 (0) 3 Atk. 225, 226, and the

Ball & B. 167. 17 Ves. 97. authorities there cited.
99. 19 Ves. 184. 2 Jac. & (p) 13 Edw. I. c. 5.
W. 145. 187; and see Bleivit (q) Gardiner \. Griffith, 2 P.

v. Thomas, 2 Ves. jun. 669. Wms. 404. 3 Atk. 459. Bote-

(l) Aggas v. Picherell, 3 Atk. Icr v. Allington, 3 Atk. 453.
225. 2 Ves. jun. 280. And see Mutter v. Chanvdl,

■ (m) 3 P. Wms. 287, note. 1 Meriv. 475.
See also 1 Vein. 418, and Bed- (r) 2 P. Wms. 405.

ford v. Tobin, ab. p. 213, n.

PLEAS. 273

vided there has been no decree (s), for a decree
being in the nature of a judgment the statute of limi-
tations cannot be applied to it (t). But where the
consequence of reviving proceedings to carry a decree
into execution would have been to call on representa-
tives to account for assets after a great length of time,
and under peculiar circumstances of laches, a bill of
revivor and supplement for those purposes was dis-
missed (m). Although suits in equity are not within
the words of the statute, the courts of equity gene-
rally adopt it as a positive rule, and apply it by
parity of reason to cases not within it (#). In general
they also hold that unless the defendant claims the
benefit of the statute by plea or answer he cannot
insist upon it in bar of the plaintiff's demand (j/) ;
but notwithstanding, the courts will in cases which
will allow of the exercise of discretion use the sta-
tute as a rule to guide that discretion (z) ; and will
also sometimes resort to the policy of the ancient

(s) Hollingshead's case,
1 P. Wms. 742. Combers case,

1 P. Wms. 766. 2 Sch. & Left.
633. 1 Ball &B. 531.

(t) 1 P. Wms. 744. 2 Sch.
& Lefr. C33.

(u) Hercy v. Dinxuoody,
4 Bro. C. C. 257.

(x) Lord Mansf. 2 Burr. 961.

2 Atk. 611. 3 Bro. C. C. 340,
note, l Sch. & Lefr. 428.

(y) » Atk- 494-

(z) 1 Atk. 494. Courts of

Equity it seems, in respect of

legal titles and demands, are
bound by the statute, 2 Sch.
& Lefr. 630, 631 ; and see Hony
v. Hony, 1 Sim. & Stu. 568;
but, in respect of equitable titles
and demands, are only in-
fluenced in their determination
by analogy to it. 1 Sch. & Lefr.
428. 2 Sch. & Lefr. 632. loVes.
466. 15 Ves. 496. 17 Ves. 97.
1 Ball &B. 119. 166. 2Jac. &
W. 1G3, and following pages,
particularly p. 175, and 2 Jac.
& W. 192.

274 PLEAS.

law, which in many cases limited the demand of
accruing profits to the commencement of the suit(«).

Any other public statute which may be a bar to
the demands of the plaintiff may be pleaded, with
the averments necessary to bring the case of the de-
fendant within the statute, and to avoid any equity
which may be set up against the bar created by the
statute (Z»).

A particular statute may also be pleaded in the
same manner. Thus, to a bill impeaching a sale of
lands in the fens by the conservators under the sta-
tutes for draining the fens, the defendant pleaded the
statutes, and that the sale was made by virtue of
and according to those statutes, and the plea was
allowed (c).

X. Supposing a plaintiff to have a full title to the
relief he prays, and the defendant can set up no
defence in bar of that title, yet if the defendant has
an equal claim to the protection of a court of equity
to defend his possession, as the plaintiff has to the
assistance of the court to assert his right, the court will
not interpose on either side(d). This is particularly

(a) On this subject see Pul- stone v. Benson, 2 Sim. & Stu.
teney v. Warren, 6 Ves. 73. 265. And see De Tastet v.
Pettiward v. Prescott, 7 Ves. Sharpe, 3 Madd. 51.

541 . (c) Brotvn v. Hamond, 2 Ch.

(b) See instances of a plea Ca. 249.

of the statute of maintenance, (d) See 2 Ves. jun. 457, 458,

32 Hen. 8, c. 9, s. 3, Hitchins and the authorities there re-

v. Lander, Coop. R. 34 ; Wall ferred to ; and see the case of

v. Stubbs, 2 Ves. & Bea. 354; Gait v. Osbaldeston, 5 Madd.

and another example of the 428. S. C. 1 Russ. R. 158. One

proposition in the text, Ockle- exception has however been

PLEAS. 275

the case where the defendant claims under a pur-
chase or mortgage for valuable consideration without
notice of the plaintiff's title, which he may plead in bar
of the suit (e). Such a plea must aver that the per-
son who conveyed or mortgaged to the defendant was
seised in fee, or pretended to be seised (/), and was
in possession (g), if the conveyance purported an
immediate transfer of the possession at the time
when he executed the purchase or mortgage-deed (h).
It must aver a conveyance, and not articles merely (/');
for if there are articles only, and the defendant is
injured, he may sue at law upon the covenants in
the articles (k). It must aver the consideration (I) and
actual payment of it; a consideration secured to be
paid is not sufficient (in). The plea must also deny
notice (n) of the plaintiff's title or claim (0), previous to

made in favour of a dowress, reversion, see Hughes v. Garth,

see Williams v. Lambe, 3 Bro. Ambl. 42 1 . S. C. 2 Eden R. 1 68.

C. C. 2C4. (i) Fitzgerald v. Lord Fal-

(e) Fitzgerald v. Bur k, 2 Atk. conbridge, Fitzg. 207. 1 Atk.

397. Story v. Lord Windsor, 571. 3 Atk. 377.

2 Atk. C30. Bullock v. Sadler, (k) 1 Atk. 571.

Ambl. 763. Strode v. Black- (I) 1 Ca.in Cha. 34. Millard's

burne, 3 Ves. 222. Wallvoyn v. Case, 2 Freem.43. Brcrcton v.

Lee, g Ves. 24. 1 Ball & B. Gamut, 2 Atk. 240.

171.2 Ball & B. 303. (m) Hardingham v. Nicholls,

{/) 3 P. Wms. 281. Story 3 Atk. 304. Maitlandv. Wil-

v. Lord Windsor, 2 Atk. 630. son, 3 Atk. 814.

1 7 Ves. 250. (n) On the subject of notice,

(g) Trevanian v. Mosse, 1 actual and constructive, see

Vern. 246. 3 Ves. 226. 9 Sugden's Vend. & Purch. 6th

Ves. 32. 16 Ves. 252. Ed. 710.

(h) 3 P. Wms. 281 . As to the (0) Lady Bodmin v. Va fide-
case where the purchase is of a bendy, 1 Vern. 1 79. Jones v.

T 2

276 PLEAS.

the execution of the deeds and payment of the con-
sideration (jj) ; and the notice so denied must be
notice of the existence of the plaintiff's title, and not
merely notice of the existence of a person who could
claim under that title (q). If particular instances of
notice, or circumstances of fraud are charged, they
must be denied as specially and particularly as
charged in the bill (r). The special and particular
denial of notice or fraud must be by way of answer,
that the plaintiff maybe at liberty to except to its
sufficiency (s) ; but notice and fraud must also be
denied generally by way of averment in the plea,
otherwise the fact of notice or of fraud will not be

Thomas, 3 P. Wms. 243. Kel- (r) Radford v. Wilson, 3 Atk.

sail v. Bennet, 1 Atk. 522. 815. 2 Vez. 450. Jarrard

(p) More v. Mayhotv, 1 Ca. v. Saunders, 2 Ves. jun. 187.

in Cha. 34. S. C. 2 Freem. S. C. 4 Bro. C. C. 322.
175. 1 Eq. Ca. Ab. 38. 334. (5) Anon% 2 Ca. in Cha. 161.

Tourville v. Naish, 3 P. Wms. pnce v# price, 1 Vern. 125. 6

307. 1 Atk. 384. 2 Atk. 631. Ves. 596. 14 Ves. 66. It has

3 Atk. 304. been lately declared, that it is

( q) 1 Atk. 522. And it must not the office of the plea to

not appear that the defendant, aenv particular facts of notice ;

though he should claim as Dut tnat it is sufficient, where

purchaser under a settlement sucn facts are alleged, to make

executed at the time of his a general denial which will

marriage, might have had no- include constructive as well as

tice of the plaintiff's title by actual notice : yet that if cir-

using due diligence in the in- cumstances be specially charged

vestigation of his own. Jackson as evidence of notice, they must

v. Rowe, 2 Sim. & Stu. 472 ; be denied by averments in the

and see Hamilton v. Royse, plea, and by an answer accom-

2 Sch. & Lefr. 315. 13 Ves. panying the same. Pennington

1 20. 14 Ves. 433. 6 Dow. P. C. v. Beechey, 2 Sim. & Stu. 282.
223, 224. 6 Madd. 59.

PLEAS. 277

in issue (s). Notice or fraud thus put in issue, if
proved, will effectually open the plea on the hearing
of the cause.

(s) Harris v. Ingledeiv, 3 P.
Wms. 94. 3 P. Wms. 244,
note. Gilb. For. Rom. 58.
Treat, of Frauds, c. 18, p. 220.
In the case of Meadows v. D tick.
of Kiagston,Mich. 1777, (S.C.
reported Ambl. 756.) the Chan-
cellor seemed to be of opinion,
that notice and fraud were to
be denied by way of averment
in the plea, in cases only where
the denial made part of an
equitable defence ; as in a plea
of purchase for valuable consi-
deration, the denial of notice
must be by way of averment
in the plea, because the want
of notice creates the equitable
bar. But in Devie and Chester,
in Chan. March 10th, 1780, a
decree establishing a modus
having been pleaded to a bill
for tithes, in which the plaintiff
stated that the defendants set
up the decree as a bar to his
claim, and to avoid the effect
of the decree charged that it
had been obtained by collusion,
andstated facts tending to show
collusion; the Chancellor was of
opinion, that the defendants not
having by averments in the
plea denied the collusion, al-
though they had done so by
answer in support of the plea,

the plea was bad in form, and
he over-ruled it accordingly.
And in Hoare and Parker, in
Ch. 17th and 19th of Jan.
1785. (reported 1 Bro. C. C.
578. S. C. 1 Cox. R. 224,)
the plaintiffs having brought
their bill as trustees, claiming
quantities of plate described in
a schedule annexed to the bill,
of which the use had been
given by the will of admiral
Stewart to his widow for her
life, and after her death to his
son and his issue ; against
the defendant, a pawn-broker,
with whom the plate, or part
of it, was alleged to have been
pledged by the widow; and the
bill having sought a discovery of
the particular pieces of plate
pawned, in order to found an
action of trover, the defendant
pleaded to so much of the bill
as sought a discovery of the plate
pawned, as after mentioned in
the plea, and of the plate spe-
cified in the schedule annexed
to the bill, that Mrs. Stewart
had pledged divers articles of
plate at several times stated in
the plea, for sums of money
specified in the plea, which
sums the defendant averred
were paid to Mrs. Stewart ;

T 3

278 PLEAS.

A purchaser with notice, of a purchaser without
notice, may shelter himself under the first pur-
chaser (f). But notice to an agent is notice to the
principal («) ; and where a person having notice
purchased in the name of another who had no notice,
and knew nothing of the purchase, but afterwards
approved it, and without notice paid the purchase-
money, and procured a conveyance, the person first
contracting was considered from the beginning as the
agent of the actual purchaser, who was therefore
held affected with notice (#). A settlement in con-
sideration of marriage is equivalent to a purchase for
a valuable consideration (j/), and maybe pleaded in the

and he also averred that he
had no notice of the will of
admiral Stewart till after the
death of Mrs. Stewart ; but he
did not aver by his plea that
he had no plate pawned with
him by Mrs. Stewart besides
the pieces pawned at the parti-
cular times mentioned in the
plea, although he did by his
answer deny that he had any
other. The Chancellor was of
opinion that the plea was
therefore defective in point of
form, as it extended to all the
plate mentioned in the schedule
of which a discovery was sought
by the bill. See 6 Ves. 595.
597 ; and see p. 239, et seq.

(t) Brandlyn v. Orel, 1 Atk.
571. Lovother v. Carlton, 2 Atk.

139. S. C. 2 Atk. 242. Ca. t.
Talb. 1 87. 2 Eq. Ca. Ab. 685.
Siveet v. Southcote, 2 Bro. C. C.
66. Ambl. 313. 11 Ves. 478.
13 Ves. 120 ; and see Harrison
v. Forth, Pre. in Cha. 51.

(w) Brotherton v. Hatt, 2 Vern.
574. Le Neve v. Le Neve,
3 Atk. 646. 1 Vez. 62. 2 Vez.
62.370. 13 Ves. 120. Mount-
ford v. Scott, 3 Madd. 34.

(x) Jennings v. Moore,
2 Vern. 609. S. C. on appeal,
under title Blcnkarne v. Jennens,
2 Bro. C. C. 278. Toml. Ed.
Coote v. Mammon, 5 Bro. P.C.
355. Toml. Ed.

(y) 1 Atk. 190. 6 Ves 659.
18 Ves. 92. 6 Dow P. C. 209.
2 Sim. & Stu. 475.

PLEAS. 279

same manner (?/). If a settlement is made after mar-
riage in pursuance of an agreement before marriage,
the agreement as well as the settlement must be
shown (z). A widow, defendant to a suit brought by
any person claiming under her husband, to discover
her title to lands of which she is in possession as her
jointure, may plead her settlement in bar to any
discovery, unless the plaintiff offers, and is able,
to confirm her jointure. But a plea of this nature
must set forth the settlement, and the lands comprised
in it, with sufficient certainty (a). A plea of pur-
chase for a valuable consideration protects a de-
fendant from giving any answer to a title set up by
the plaintiff, but a plea of bare title only, without
setting forth any consideration, is not sufficient for
that purpose (b). Upon a plea of purchase for a
valuable consideration to a discovery of deeds and
writings, the purchase-deed must be excepted, for it
is pleaded (c).

A plea of purchase for a valuable consideration,
without notice of the plaintiff's title to a bill to per-
petuate the testimony of witnesses, has been allowed,
though there are few cases in which the Court will not
give that assistance to the furtherance of justice.
Thus, to abill to perpetuate the testimony of witnesses

(_y) Harding v. Hardrett, Leech v. Trollop, 2 Vez. 662.

Finch, R. g. As to the case of a dowress

(z) Lord Keeper v. Wyhl, plaintiff, see above p. 274,

1 Vern. 139. note (d ). 1 Ves. jun. 76.

(n) Petre v. Petre, 3 Atk. (b) 2 Atk. 241.

511. 3 Atk. 571. 2 Vez. 450. (c) 2 Vez. 107.

280 PLEAS.

to a will the defendant pleaded purchase for a va-
luable consideration, without notice of the will, and
the plea was allowed (c). But in this case, as reported,
there appears to have been nothing to impede the
plaintiff's proceeding at law to assert his title under
the will, against the defendant's possession, and there
was apparently therefore no equity to support the
bill (/).

XI. Though a plaintiff may be fully entitled to the
relief he prays, and the defendant may have no
claim to the protection of the Court which ought to
prevent its interference, yet the defendant may object
to the bill if it is deficient to answer the purposes of
complete justice. This is usually for want of proper
parties ; and if the defect is not apparent on the face
of the bill (e) the defendant may plead the matter ne-
cessary to show it (y ). A plea of want of parties goes
both to discovery and relief where relief is prayed (g),
though the want of parties is no objection to a bill
for a discovery merely (/*). Where a sufficient reason
to excuse the defect is suggested by the bill, as
where a personal representative is a necessary party,
and the bill states that the representation is in contest

1 Vern. 354. 51. S. C. 3 Atk. 341.

(d) See also Ross v. Close, &) 2 Atk- 5h in Plunket v.
5 Bro. P. C. 362. Toml. Ed. Penson> wherem this Plea is

2 Ves. jun. 458. termed a Plea ln bar 5 but see

(e) 16 Ves. 325. ° VeS* 594' l6 VeS* 325>

v 7 (h) Sangosa v. E. I. Comp.

(y) Hannev. Stevens,iVern. 2 Eq. Ca. Ab. 170.

PLEAS. 28l

in the ecclesiastical court (i), or where the party is
resident out of the jurisdiction of the court (k), and
the bill charges that fact, or where a bill seeks a
discovery of the necessary parties (I), an objection
for want of parties will not be allowed, unless, per-
haps, the defendant should controvert the excuse
made by the bill by pleading matter to show it
false. Thus, in the first instance, if before the filing
of the bill the contest in the ecclesiastical court was
determined, and administration granted, and the de-
fendant showed this by plea, perhaps the objection
for want of parties would be in strictness good. Upon
arguing a plea of this kind, the Court instead of al-
lowing it has given the plaintiff leave to amend the
bill upon payment of costs (ni) ; a liberty which he
may also obtain after allowance of a plea, according
to the common course of the court ; for the suit is
not determined by allowance of a plea as it is by
allowance of a demurrer to the whole of a bill (n).

Having thus considered all the objections to a
bill which have occurred, as extending to relief, and
which likewise extend to discovery wherever it is

(i) See 2 Atk. 51, in Plunket the plea was defective in point

v. Penson. of form, in not stating that ad-

(/c) Cotvslad v. Cely, Prec. in ditional parties were necessary,

Cha. 83 5 and see Haddock and naming them, leave was

v. Thomlinson, 2 Sim. & Stu. given to amend the plea.

219, and above, p. 164, note. Merreivcther v. Mellish, i3Ves-

(l) See Bowyer v. Covert, 435. See 11 Ves. 369. 16 Ves.

1 Vcrn. 95. 32$.

(m) Stafford x. City of Low (rt) See below, p. 304.
don, 1 P.Wms. 428 ; and where

282 PLEAS.

merely sought for the purpose of obtaining relief, and
can have no other end, it remains to treat of such
objections as are grounds of plea to discovery only*
These are nearly the same as those which have been
already mentioned as causes of demurrer to disco-
very. They may be, I, That the plaintiff's case is
not such as entitles a court of equity to assume a
jurisdiction to compel a discovery in his favour;
II. That the plaintiff has no interest in the subject,
or no interest which entitles him to call on the de-
fendant for a discovery ; III. That the defendant has
no interest in the subject to entitle the plaintiff to in-
stitute a suit against him even for the purpose of
discovery only ; IV. That the situation of the de-
fendant renders it improper for a court of equity to
compel a discovery.

I. If the plaintiff's case is not such as entitles a
court of equity to assume a jurisdiction to compel a
discovery in his favour, though he falsely states a
different case by his bill, so that it is not liable to
a demurrer, the defendant may by plea state the
matter necessary to show the truth to the court (n).

II. If a plaintiff by his bill states himself to have

(n) But if a plaintiff who is decreeing the payment of the

bankrupt, in a bill filed by him balance to him, it would over-

to obtain discovery in aid of rule a plea of that fact so far

his defence to an action, and as to give him the discovery,

for an account, and an injunc- and even to have the accounts

tion in the mean time, should taken. Lotvndes v. Taylor,

avoid stating his bankruptcy, 1 Madd. R. 423. S. C. 2 Rose,

although this court, it seems, 365. See above, p. 67, note,
would not afford him relief by

PLEAS. 283

an interest which entitles him to call on the defendant
for a discovery, though in truth he has no such inte-
rest, the defendant may by plea protect himself from
making the discovery, which may involve him in dif-
ficulty and expense, and perhaps may be prejudicial
to him in other cases. Thus, if a plaintiff states him-
self to be heir or administrator of a person dead in-
testate, and in that character seeks a discovery from
a person in possession of property which did belong
to the deceased, of his title thereto, or of the parti-
culars of which it consists, the defendant may plead
that another person is heir or personal representative,
or that the person alleged to be dead is living (0).

III. It has been already observed, that if a claim
of interest is alleged by a bill against a person who
has no interest in the subject, he cannot by demurrer
protect himself from a discovery, and must resort
either to a plea or disclaimer (p) ; by either of which
means it should seem he may protect himself from
making by answer that discovery which he may pro-
perly be required to make if called upon as a witness (y).
In some cases however the Court has allowed a de-
fendant to protect himself by answer, denying the
charge of interest, from answering to matters to which
he may be afterwards called upon to answer in the

(o) Orel against Williamson, 1 Vez. 426.

Trin. 1773. Orel v. Huddle- (y) But it does not appear

stone, Dick. 510. And see Gait to be settled that a bankrupt

v. Osbaldeston, 1 Russ. 158. could by plea protect himself

S. C. 5 Madd. 428. from discovery. See 1 Ves. & B.

(/;) Page 188. And see 550.

284 PLEAS.

character of a witness; and perhaps, in justice to those
against whom he may afterwards be called upon to
give evidence as a witness, he ought not to be pre-
viously examined to the same matters upon a bill,
under the pretence of an interest which he has not.

IV. The situation of a defendant may render it
improper for a court of equity to compel a discovery,
1, because the discovery may subject him to pains
and penalties ; 2, because it will subject him to a
forfeiture, or something in the nature of a forfeiture ;
3, because it would betray the confidence reposed in
him as a counsel, attorney; or arbitrator ; 4, because
he is a purchaser for a valuable consideration without
notice of the plaintiff's title.

1 . It has been already observed, that no person is
bound to answer so as to subject himself to punish-
ment, in whatever manner that punishment arises, or
whatever is the nature of the punishment (r). If
therefore a bill requires an answer which may subject
the defendant to any pains and penalties, or tends to
accuse him of any crime, and this is not so apparent
upon the face of the bill that the defendant can
demur, he may by plea set forth by what means he
may be liable to punishment, and insist he is not
bound to answer the bill, or so much thereof as the
plea will cover (V).

Thus to a bill brought for discovery of a marriage,

(r) Page 194. See 2 Vez.

(5) Bird v. Hardwicke,

245. 2 Swanst. 214, 216. Bird

1 Vern. log. Claridge v.

v. Hardwicke, 1 Vern. log.

Hoare, 14 Ves. 59.

11 Yes. 525.

PLEAS. 285

where the fact, if true, would have subjected the "party
to punishment in the ecclesiastical court for incest, the
defendant pleaded matter to show that the marriage, if
real, was incestuous, and would subject the parties to
pains and penalties (t). And where a bill was brought
against a woman claiming as widow of a person dead,
alleging that before her marriage with the deceased she
was married to another person, who was living at the
time of her marriage with the deceased, the defendant
pleaded that marriage to the discovery of the supposed
first marriage, and insisted that she was not compellable
to answer to the fact of the first marriage, as it would
tend to show her guilty of bigamy (it). So to a bill for
a discovery whether the defendant had become a pur-
chaser of an estate of which the supposed seller was not
in possession, the defendant pleaded the statute against
selling or contracting for any pretended rights or
titles (V). And to a bill brought by insurers for a
discovery of what goods had been shipped on board a
vessel, the defendant pleaded the statutes which made
it penal to export wool. He was, however, directed
to answer so far as to discover what goods were on
board the vessel besides wool (if). But where the
discovery sought was not of a fact which could sub-
ject the defendant to any penalty, though connected
with another fact which might, as, where the ques-
tion was whether the defendant had a legitimate son,

(t) Browisxvord v. Edwards, {x) Sharp v. Carter, 3 P. Wins.

2 Vez. 243. 14 Ves. 65. 375.

(«) 5 Bro. P. C. 102. Toml. (y) Duncalfv. Blake, 1 Atk.

Ed. 52.'

286 PLEAS.

the defendant was compelled to answer. For the
discovery of that fact would not subject him to a
penalty, though the discovery of his marriage with
the mother of the son might, and therefore he was
not compelled to discover the marriage (z).

2. It has been also (a) observed, that no person is
bound to answer so as to subject himself to any for-
feiture, or to any thing in the nature of a forfeiture (b).
If this is not apparent on the bill the defence must
be made by way of plea. Thus where a bill was
brought to discover whether the defendant had as-
signed a lease, he pleaded to the discovery a proviso
in the lease, making it void in case of assignment (c).
And to a bill seeking a discovery whether a person
under whom the defendant claimed was a papist, the
defendant pleaded his title, and the statute of 1 1 &
12 William III. disabling papists (d). But such a
plea will only bar the discovery of the fact which
would occasion a forfeiture. Therefore, where a tenant
for life pleaded to a bill for discovery whether he
was tenant for life or not, that he had made a lease
for the life of another, which, if he was tenant for his
own life only, might occasion a forfeiture, the plea
was over-ruled (e). So upon a bill charging the de-

(z) Finch v. Finch, 2 Vez. (d) Smith v. Read, l Atk.

491- 526. 3 Atk. 457. Jones v.

(a) Page 197. Meredith, Com. R. 661. S. C.

(b) 1 Atk. 527. And see Bunb. 346. Harrison v. South-
Parkhurst v. Lowten, 1 Meriv. cote, 528. S. C. 2 Vez. 389.

39 1 • (e) Weaver v. Earl o/Mealh ,

PLEAS. 287

fendant to be tenant for life, and that he had com-
mitted waste, it was determined that he might plead
to the discovery of the act which would occasion the
forfeiture, the waste, but that he could not plead to
the discovery whether he was tenant for life or not(/).
Upon an information by the Attorney-general on
behalf of the Crown, to discover whether the defend-
ant was an alien, and whether her child was an
alien, and where born, it was held the defendant was
bound to discover whether she was herself an alien,
the legal disability of an alien not being a penalty or
forfeiture; and that she was also bound to discover
whether her child was an alien, and where born, as
she had a chattel interest in the property in question
in trust, eventually, for the Crown, if her child was an
alien (g). In all cases of forfeiture, if the plaintiff
is entitled alone to the benefit of the forfeiture (h),
and waves it by his bill, the defendant will be com-
pelled to make the discovery required. And though
the plaintiff is not entitled to the benefit of the for-
feiture, yet if the defendant has by his own agreement
bound himself not to insist on being protected from
making the discovery, the Court will compel him to
make it (f). In some cases the Legislature has ex-
pressly provided that the parties to transactions made

(/) 2 Vez. 109. Bumpstcad, Mosely, 75. S. C.

(g) Att. Gen. v. Duplessis, 1 Eq. Ca. Ab. 77.
Parker, 144. S. C. 1 Bro. P. C. (1) Mosely, 77, and the cases

415. Daubigny v. Davallon, there cited. African Comp.

Anstr. 462. v. Parish, 2 Vem. 244.

(h) South Sea Comp. v.

288 PLEAS.

illegal by statute shall be compellable to answer bills
in equity for discovery of such transactions ; and in
such cases a defendant cannot protect himself from
making the discovery thus required by pleading the
statute which may subject him to penalties in conse-
quence of the discovery (k).

3. If a bill seeks a discovery of a fact from one
whose knowledge of the fact was derived from the
confidence reposed in him as counsel, attorney, or
arbitrator, he may plead in bar of the discovery
that his knowledge of the fact was so obtained (/).

4. If a defendant is a purchaser for a valuable con-
sideration without notice of the plaintiff's title, a court
of equity will not in general compel him to make any
discovery which may affect his own title (m). Thus if a
bill is filed for discovery of goods purchased of a bank-
rupt, the defendant may plead that he purchased them
bonajide for a valuable consideration, paid before the
commission of bankrupt was sued out, and before he
had any notice of the bankruptcy (n).

Pleas have been hitherto considered with reference

(Jc) Bancroft v. Wentuorth, 472. 1 Sch. & Lefr. 2 26.

3 Bro. C. C. 11. See, how- Louden v. Parkhurst, 2 Swanst.

ever, Bullock v. Richardson, 11 194, and Harvey v. Clayton,

Ves. jun. 373. Billing v. Flight, and other cases reported, 2

1 Madd. R. 230. Swanst. 221, note.

(J) Bulstrode v. Lechmore, (m) 2 Ves. jun. 458. And

1 Ca. in Cha. 277. S. C. 2 see above 275, et seq. 3 Atk.

Freem. 5 ; and see Legard v. 302.

Foot, Finch R. 82. Sandford (n) Perrat v. Ballard, 2 Ca.
v. Remington, 2 Ves. jun. 189. in Cha. 72. Heyman v. Gomel-
Wright v. Mayer, 6 Ves. 280. don, Finch R. 34. Abery v.
Richards v. Jackson, 18 Ves. Williams, 1 Vem. 27.

PLEAS. 289

only to original bills, and of these a certiorari bill,
from the nature of the proceedings upon it, will not
in general admit of a plea (0). But the same grounds
of plea will hold in many cases to the several other
kinds of bills according to their respective natures ;
and some of them, as already observed, admit of a
peculiar defence which may be urged by way of plea.
Thus if a bill of revivor is brought without sufficient
cause to revive the suit against the defendant, and
this is not apparent on the bill, the defendant may
plead the matter necessary to show that the plaintiff is
not entitled to revive the suit against him (/?). Or if
the plaintiff is not entitled to revive the suit at all,
though a title is stated in the bill, so that the defendant
cannot demur, the objection to the plaintiff's title may
also be taken by way of plea. Indeed it seems to have
been thought that a defendant could only object to
revivor by way of plea or demurrer (<y), and there may
be great convenience in thus making the objection.
For if the defendant objects by answer merely, the
point can only be determined by bringing the cause
regularly to a hearing ; but if the objection is taken
by plea or demurrer, it may in general be immediately

(0) See however, Cook v. Abr. 3. A person made a dc-

Delebcre, 3 Ch. Rep. 66, where fendant by a bill of revivor

a plea to a certiorari bill, of a cannot support, as a defence,

decree in the inferior court, is a plea previously set up by the

mentioned. original defendant, and over-

(p) Harris v. Pollard, 3 P. ruled, Samuda v. Furtado,

Wins. 348. S. C. 2 Eq. Ca. 3 Bro. C. C. 70.

Abr. 2. Huggius v. York (q) Harris v. Pollard, 3 P.

Buildings Comp. 2 Eq, Ca. Wins. 348.

29O PLEAS.

determined in a summary way. However, if a de-
fendant objects by answer only, or does not object at
all, yet if it appears to the court that the plaintiff has
no title to revive the suit against the defendant; he
can take no benefit from it (r). If a person entitled
to revive a suit does not proceed in due time he may
be barred by the statute for limitation of actions,
which may be pleaded to a bill of revivor afterwards
filed (s). If a supplemental bill is brought upon
matter which arose before the original bill was filed,
and this is not apparent on the bill, the defendant
may plead that fact (t). And if a bill is amended by
stating a matter arisen subsequent to the filing of the
bill, and which consequently ought to have been the
subjectof a supplemental bill, advantage maybe taken
of the irregularity by way of plea, if it does not suffi-
ciently appear on the bill to found a demurrer (11) ; but
if the defendant answers he waves the objection to the
irregularity, and cannot make it at the hearing (V).

A cross-bill differing in nothing from the first species
of bills, with respect to which pleas in general have
been considered, except that it is always occasioned
by a former bill, it is not liable to any plea which
will not hold to the first species of bills. And a cross-

(r) Harris v. Pollard, 3 P. (t) See Lcivellen v. Maclc-

Wms. 348. worth, 2 Atk. 40. Baldxoin v.

(s) Hottingshead's case, 1 P. Mackoivn, 3 Atk. 817.

Wms. 742. And see 2 Sch. (u) See Broivn v. Higden,

& Lefr. 632, cl seq., and the 1 Atk. 291. Jones v. Jones, 3

cases cited, and Earl of Egre- Atk. 2 1 7, and above, p. 48, 49.

wont v. Hamilton, 1 Ball & B. (x) Belchier v. Pearson, at

516. the Rolls, 13th July 1782.

PLEAS.

29I

bill in general is not liable to some pleas which will
hold to the first species of bills; as pleas to the juris-
diction of the court, and pleas to the person of the
plaintiff, the sufficiency of which seem both affirmed
by the original bill ; unless the cross-bill is exhibited
in the name of some person alone, who is alone in-
capable of instituting a suit, as an infant, a feme
covert, an idiot, or a lunatic (11).

It has been already mentioned (#) that a part of
the constant defence to a bill of review, for error
apparent on a decree, has been said to be by a plea
of the decree (?/) ; but that a demurrer seemed to be
the proper defence, and that the books of practice
gave the form of a demurrer only to such a bill (c).
Where any matter beyond the decree, as length of
time(fl), a purchase for a valuable consideration, or
any other matter, is to be offered against opening of
the enrolment, that matter must be pleaded (&). And
if a demurrer to a bill of review has been allowed, and
the order allowing it is enrolled, it is an effectual bar

(u) See above, p. 203, note

to-

(x) Page 203.

(y) Dancer v. Evett, 1 Vern.
392. Carlish v. Gover, Nels.
Rep. 52.

(z) And see Needier v. Ken-
dall, Finch R. 468.

(a) Gregor v. Molestvorlh,
2 Ves. 109; but see above,
p. 205.

(b) Hattivell v. Toivnsend,
2 Bro. P. C. 107. Toml. Ed. ;
and see Gorman v. M'Cullock,
5 Bro. P. C. 597. Toml. Ed.
As instances in which the error
alleged was not in the body of
the decree see Cranborne v.
Dalmahoy, i Cha. Rep. 231.
Smith v. Turner., 1 Vern. 273 ;
and see 2 Vez. 488, and Bra-
dish v. Gee, Amb. 229.

U 2

2f)2 PLEAS.

to a new bill of review (c) on the same grounds, and
may be pleaded accordingly. To a bill of review of
a decree for payment of money, it has been objected
by plea that according to the rule of the court (cl) the
money decreed ought to have been first paid ; but
the rule appears to have been dispensed with on
security given (e) ; and as the bill of review would
not stay process for compelling payment of the money,
it may be doubted whether the objection was pro-
perly so made. A bill of review, upon the discovery
of new matter, seems liable to any plea which would
have avoided the effect of that matter if charged in
the original bill. It seems to have been doubted
whether the fact of the discovery of the matter thus
alleged to support a bill of review, can be traversed
by plea after the court upon evidence of the fact has
given leave to bring the bill, even if the defendant
could traverse the fact by positive assertion of some
fact which would demonstrate that the matter was
within the knowledge of the party, so that he might
have had the benefit of it in the original suit. But
if the fact of the discovery is in issue in the cause, it
ought to be proved, to entitle the plaintiff to demand
the judgment of the court on the matter alleged, as
ground for reviewing the decree (f) ; and it may con-

in Cha. 133. S. C. 1 Vera. (e) Savile v. Darcy, 2 Freem.

135. 1 Vern. 417. Pitt v. 172. S. C. 1 Ca. in Cha. 42.

Earl of Arglass, 1 Vern. 441. (f) See p. 89.
JVoots v. Tucker, 2 Vern. 120.

PLEAS. 293

sequently be disproved by evidence on the part of the
defendant. Upon a supplemental bill in nature of a bill
of review of adecree not signed and enrolled, upon the
alleged discovery of new matter, it has been said, that
if the defendant can show that the allegation is false,
he must do so by plea, and that it is too late to insist
upon it by answer (g) ; but as the bill must allege
the fact of discovery, and that fact must be the ground
of the proceeding, it should seem that it is equally
liable to traverse by answer, and by evidence, as any
other fact stated in a bill. If a decree is sought to be
impeached on the ground of fraud, the proper defence
seems to be a plea of the decree, accompanied by a
denial of the fraud charged (h).

If a plaintiff filing a bill to carry a decree into
execution has no right to the benefit of the decree,
the defendant may plead the fact, if it is not so
apparent on the bill as to admit of a demurrer. Bills
in the nature of bills of revivor or of supplemental

( g) 2 Atk. 40. The accuracy as a bar to the plaintiff's title
of this report seems very ques- under the old settlement, which
tionable. The supplemental was dated in 1655; the defen-
bill was brought on discovery dants claiming under a subse-
of an old settlement, found after quent settlement made in 1694,
adecree made in 1733. The which had been constantly act-
cause came on upon the sup- ed upon by the family. MS. N.
plemental bill, and a rehearing S. C. 2 Eq. Ca. Ab. 579.
of the decree complained of, (h) Wichalse v. Short, 3 Bro.
7 July 1740. The decree was P. C. 558, Toml. Ed. S. C.
affirmed, and the supplemental 7 Vin. Ab. 398, pi. 15. 2 Eq.
bill dismissed without costs, Ca. Ab. 177. Loydv. Manse//,
principally on the ground, that 2 P. Wms. 73. And see p. 239,
length of time, with collateral et seq.
circumstances, ought to operate

u 3

2Q4 PLEAS.

bills, are liable to the same pleas as the bills of
whose nature they partake.

Having thus considered some of the principal
grounds upon which pleas to the several kinds of bills
may be supported, it will be proper to observe some
particulars with respect to, l, the nature of pleas in
general ; 2, their form ; 3, the manner in which they
are offered to the court ; and 4, the manner in which
their validity is decided.

1 . In pleading there must in general be the same
strictness in equity as at law (i) ; at least in matter
of substance. A plea in bar must follow the bill, and
not evade it, or mistake the subject of it (k). If a
plea does not go to the whole bill, it must express
to what part of the bill the defendant pleads ; and
therefore a plea to such parts of the bill as are not
answered must be over-ruled as too general (/). So
if the parts of the bill to which the plea extends are
not clearly and precisely expressed ; as if the plea is
general, with an exception of matters after mentioned,
and is accompanied by an answer, the plea is bad.
For the court cannot judge what the plea covers,
without looking into the answer, and determining
whether it is sufficient or not, before the validity of
the plea can be considered (m).

It is generally conceived that a plea ought not to

(/) 1 Vern. 114. 2 Atk. 632. (/) Anon. 3 Atk. 70. Broom

13 Ves. 233. v. Horsley, Mosely, 40.

(/»■) Asgillv. Dawson, Ikinb. (m) Salkeldv. Science, 2 Ves.

70. Child v. Gibson, 2 Atk. 107. Howe v. Dtijipa, 1 Ves.

603. &B. 511.

PLEAS. 295

contain more defences than one ; and though a plea
may be bad in part and hot in the whole (n), and
may accordingly be allowed in part and over-ruled in
part, yet there does not appear any case in which
two defences offered by a plea have been separated,
and one allowed as a bar. Thus if a defendant pleads
a fine and non-claim, which is a legal bar, and a pur-
chase for a valuable consideration without notice of
the plaintiff's claim, which is an equitable bar: if
either should appear not to be a bar, as if the de-
fendant by answer should admit facts amounting to
notice ; or if the plea in respect to either part should
be informal ; there seems to be no case in which the
court has separated the two matters pleaded, and
allowed one as a bar and disallowed the other. And
as the end of a plea is to reduce the cause, or the part
of it covered by a plea, to a single point (0) ; in
order to save expense to the parties, or to protect the
defendant from a discovery which he ought not to be
compelled to make ; and the court to that end in-
stantly decides on the validity of the defence, taking
the plea, and the bill so far as it is not contradicted
by the plea, to be true : a double plea is generally
considered as informal and improper (p). For if two

(») 1 Atk. 53. 451. 539. 153, note, 156-7. 1 Madd. R.

2 Atk. 44. 284. 1 Vez. 205. 194.

Welby v. Duke of Portland, (p) Whitbrcadx.BrocJchurst,

Si Bro. P. C. 39, Toml. Ed. 1 Bro. C. C. 404. S. C. 2 Ves.

1 Jac. It. 46G. & B. 153, note. Nobkissen v.

(0) 1 Atk. 54. 1 Bro. C. C. Hastings, 4 Bro. C. C. 252,

417. 15 Ves. 82. lVes.&B. S. C. 2 Ves. jun. 84. Wood v.

U 4

2p6 PLEAS.

matters of defence may be thus offered, the same
reason will justify the making any number of defences
in the same way, by which the ends intended by a plea
would not be obtained ; and the court would be com-
pelled to give instant judgment on a variety of defences,
with all their circumstances, as alleged by the plea,
before they are made out in proof ; and consequently
would decide upon a complicated case which might
not exist. This reasoning perhaps does not in its
extent apply with equal force to the case of two several
bars pleaded as several pleas, though to the same
matter ; and it may be said that such pleading is
admitted at law, and ought therefore to be equally so
in equity. But it should be considered that a plea is
not the only mode of defence in equity, and that there-
fore there is not the same necessity as at law for ad-
mitting this kind of pleading. But though a defence
offered by way of plea consist of a great variety of
circumstances, yet if they all tend to one point the
plea may be good (0). Thus a plea of title deduced
from the person under whom the plaintiff claims may

Strickland, '2 Ves. & B. 150. 725. Ashurstw. Eyres, 3 Atk.

3 Madd. 8. 4 Madd. 245. But 341. i5"Ves. 82.377. Leonard
it has been determined, that v. Leonard, 1 Ball &B. 323. And
where great inconvenience see 2 Blackst. 1028, as to the
would result from obedience to distinction between a double
this rule, the court on a previous plea, consisting of distinct pro-
special application will give to positions, and a single plea con-
the defendant leave to plead sisting of one connected propo-
double. Gibson v. Whitehead, sition formed from multifarious

4 Madd. 241. circumstances.
(0) Cann\. Cann, 1 P.Wms.

PLEAS. 297

be a good pica though consisting of a great variety of
circumstances (p) ; for the title is a single point, to
which the cause is reduced by the plea (q). It there-
fore seems that a plea can be allowed in part only with
respect to its extent, the quantity of the bill covered
by it ; and that if any part of the defence made by
the plea is bad, the whole must be over-ruled (r).

A plea must aver facts to which the plaintiff may
reply ($), and not in the nature of a demurrer, rest on
facts in the bill (t). The averments ought in general
to be positive («). In some cases, indeed, a defendant
has been permitted to aver according to the best of
his knowledge and belief; as that an account is just
and true (#) ; and in all cases of negative averments (y),

(p) Martin & Martin, House (s) 15 Ves. 377.
of Lords, 6th March 1 724-5, (t) Bicknell v. Gough, 3 Atk.

and Else v. Doughty, 1 P. 558. 2 Vez. 29G. Roberts v.

Wins. 387, note, Mr. Cox's Ed. Hartley, 1 Bro. C.C. 56. 6 Ves.

Howe v. Duppa, 1 Ves. & B. 5Q4. Billing v. Flight, 1 Madd.

511. Gaitv.Osbaldeston, lRuss. R# 230. steff v. Andrews,

158. S. C. 5 Madd. 428. 2 Madd. R. 6. The prominent

(q) See Doble v. Cridland, distinction between a plea and

2 Bro. C. C. 274. a demurrer (Ord. inCha.26 Ed.

(r) As instances of a plea Bea.) here noticed, is strictly

not being a complete defence true, even of that description of

to the bill, or to so much thereof p}ea which is termed negative

as it purports to cover, ' see (above, p. 230), for it is the

Moore v. Hart, 1 Vern. 110. affirmative of the proposition

Salkeld v. Science, 2 Vez. 107. which is stated in the bill.

Potter v. Davy, 3 Vin. Ab. 135. ^ 3 Atk. 590.

I-Ioarev. Parker, above, p. 277,

r „ . 0t/ „r,n U) 3 Atk. 70. Burgonii v.

note. Jones v.Davis,i6Ves.20<i. } > * J *> j

,,, /;• a r, vM «r Machcll, lotlull, 70.

Chamberlain v. Agar, 2Ves.1V » '

B. 259. Spottisivood v. Stock- {y) See Drew v. Drew, 2 Ves.

dale, Coop, R. 102. Barker & B. 159.
v. Ray, 5 Madd. 64.

298 PLEAS.

and of averments of facts not within the immediate
knowledge of the defendant (z), it may seem improper
to require a positive assertion. Unless, however, the
averment is positive, the matter in issue appears to
be, not the fact itself, but the defendant's belief of it :
and the conscience of the defendant is saved by the
nature of the oath administered ; which is, that so
much of the plea as relates to his own acts is true, and
that so much as relates to the acts of others he
believes to be true. All the facts necessary to
render the plea a complete equitable bar to the case
made by the bill, so far as the plea extends, that the
plaintiff may take issue upon it («), must be clearly
and distinctly averred. Averments are likewise neces-
sary to exclude intendments which would otherwise be
made against the pleader ; and the averments must
be sufficient to support the plea (£).

If there is any charge in the bill, which is an equi-
table circumstance in favour of the plaintiff's case
against the matter pleaded ; as fraud, or notice of
title ; that charge must be denied by way of answer,
as well as by averment in the plea(c). In this case the
answer must be full and clear, or it will not be effectual
to support the plea (d) ; for the court will intend the

(z) 2 Ves. & B. 162. 2 Sch. & Lefr. 727. 2 Ves. & B.

(a) Gilb. For. Rom. 58. 364. 5 Madd. 330. 6 Madd. 64.
2 Vez. 296 ; and see Carleton 2 Sim. & Stu. 279. And see
v. Leighton, 3 Meriv. 667. above, p. 239, et seq. and

(b) 2 Vez, 245. 2 Sch. & p. 256.

Lefr. 727. 18 Ves. 182. (d) 3 Atk. 304. Radford v.

Bayleyv. Adams, 6 Ves. 594. 145. 5Bro.P.C.5(h,Tomi.Ed.

PLEAS. 299

matters so charged against the pleader, unless they
are fully and clearly denied (e). But if they are in
substance fully and clearly denied, it may be sufficient
to support the plea, although all the circumstances
charged in the bill may not be precisely answered (f).
Though the court upon argument of the plea, may
hold these charges sufficiently denied by the answer
to exclude intendments against the pleader, yet if the
plaintiff thinks the answer to any of them is evasive,
he may except to the sufficiency of the answer in those
points. A defendant may also support his plea by
an answer touching any thing not charged by the bill,
as notice of a title, or fraud ; for by such an answer
nothing is put in issue covered by the plea from being
put in issue (g), and the answer can only be used to
support or disprove the plea (Ji). Butif a plea is coupled
with an answer to any part of the bill covered by the
plea, and which consequently the defendant by the
plea declines to answer, the plea will upon argument
be over-ruled (*).

Where facts appeared upon an answer to an original
bill, which would operate to avoid the defence made
by plea to an amended bill, the answer to the original
bill was read on the argument of the plea, to coun-
terplead the plea (A) ; so it should seem if the answer
to an original bill would disprove an averment in a

Eq. 185. As an example, see (/<) See 3 Atk. 303.

Hohy v. Ilony, 1 Sim. & Stu. (i) Cottington v. Fletcher,

568. 2 Atk. 155. Gilb. For. Rom. 58.

(/) 5 lko. P. C. 561, Toml. (Jc) Hg/iardv.Whilc,wChan.

Ed. 15th Marcb 1745.

300 PLEAS.

plea to an amended bill, the court might permit it to
be read for that purpose (/).

2. A plea, like a demurrer, is introduced by a pro-
testation against the confession of the truth of any
matter contained in the bill. For the purpose of de-
termining the validity of the plea, the bill, so far as
it is not contradicted by the plea (??i), is taken for true ;
and the protestation has probably been used to pre-
vent the same conclusion for other purposes. The
extent of the plea, that is, whether it is intended to
cover the whole bill, or a part of it only, and what
part in particular, is usually stated in the next place :
and this, as before observed (w), must be clearly and
distinctly shown. The matter relied upon as an ob-
jection to the jurisdiction of the court, to the person
of the plaintiff or defendant, or in bar of the suit, ge-
nerally follows, accompanied by such averments as
are necessary to support it. The plea commonly
concludes with a repetition that the matters so of-
fered are relied upon as an objection or bar to the
suit, or so much of it as the plea extends to ; and
prays the judgment of the court, whether the de-
fendant ought to be compelled further to answer the
bill, or such part as is thus pleaded to. If the plea
is accompanied by an answer merely to support it,
the answer is stated to be made for that purpose, not
waving the plea. If the plea is to part of a bill only,
and there is an answer to the rest, it is expressed to

(I) See the case of Hildyard (m) See Plunket v. Pensou,
v. Cressy, 3 Atk. 303. 2 Atk. 51. 15 Ves. 377.

(n) Page 294.

PLEAS. 301

be an answer to so much of the bill as is not before
pleaded to, and is preceded by the same protestation
against waver of the plea.

3. A plea(V) is filed like a demurrer in the proper
office; and pleas in bar of matters in pais (a), must
be upon oath of the defendant ; but pleas to the
jurisdiction of the court, or in disability of the per-
son of the plaintifT(yt>), or pleas in bar of any matter
of record, or of matters recorded, or as of record in
the court itself (//), or any other court (r), need not
be upon oath.

4. If the plaintiff conceives a plea to be defective
in point of form, or substance, he may take the judg-
ment of the court upon its sufficiency. And if the
defendant is anxious to have the point determined,
he may also take the same proceeding. Upon argu-
ment of a plea it may either be allowed simply, or
the benefit of it may be saved to the hearing, or it
may be ordered to stand for an answer. In the first
case the plea is determined to be a full bar to so
much of the bill as it covers, if the matter pleaded,
with the averments necessary to support it, are true.
If, therefore, a plea is allowed upon argument, or
the plaintiff without argument thinks it, though
good in form and substance, not true in point of

(n) A plea must be signed (q) Prac. Reg. 324, Wy. Ed.

by counsel, unless taken by (r) But if a plea of matters

commissioners. Siines v. Smith, recorded be accompanied with

4j\Iadd.36G. See below, p. 3 15, averments of matters in pais, it

as to tbe taking of an answer. must be upon oath. Wall v.

(0) Prac. Reg. 325, Wy. Ed. Stubbs, 2 Ves. & Bea. 354. See

(»Ord.inCh.27.i72. Ed.Bca. above, pp.226, 227, 229.

302 PLEAS.

fact, he may take issue upon it, and proceed to dis-
prove the facts upon which it is endeavoured to be
supported (s). For if the plea is upon argument
held to be good, or the plaintiff admits it to be so
by replying to it (7), the truth of the plea is the only
subject of question remaining, so far as the plea
extends ; and nothing but the matters contained in
the plea, as to so much of the bill as the plea covers,
is in issue between the parties (u). If therefore
issue is thus taken upon the plea, the defendant
must prove the facts it suggests (V). If he fails in
this proof, so that at the hearing of the cause the
plea is held to be no bar, and the plea extends to
discovery sought by the bill, the plaintiff is not to
lose the benefit of that discovery, but the court will
order the defendant to be examined on interrog-ato-
ries, to supply the defect (j/). But if the defendant
proves the truth of the matter pleaded, the suit, so
far as the plea extends, is barred (z), even though
the plea is not good either in point of form or sub-
stance. Therefore where a defendant pleaded a
purchase for a valuable consideration, and omitted to
deny notice of the plaintiff's title, and the plaintiff
replied, it was determined that the plea, though

0) Prac. Reg. 330, Wy. Ed. (x) Mos. 73. 2 Vez. 247.

if) 1 Vern. 72. Free, in Ch. 0rdv- Huddleston, Dick. 510.
r$ (y) Nels. Rep. 119. Astleyv.

Fountaine, Rep. Tem. Finch 4.
Ju) 3 P. Wins. 95. Parker v. 2 Vez g Madd ^ 2 ^

Blythmore, Prec. in Chan. 58. & gfcu 27g

See Cooper v. Tragonnel, 1 Ch. {z) See )Vickake v. shorf>

Rep174' 3Bro.P.C558.

PLEAS. 303

irregular, bad been admitted by the replication to be
good, and that the fact of notice not being- in issue,
the defendant, proving what he had pleaded, was en-
titled to have the bill dismissed (//).

If upon argument the benefit of a plea is saved to
the hearing, it is considered that so far as appears
to the court it may be a defence ; but that there may
be matter disclosed in evidence which would avoid
it, supposing the matter pleaded to be strictly true ;
and the court therefore will not preclude the ques-
tion.

When a plea is ordered to stand for an answer, it
is merely determined that it contains matter which
may be a defence, or part of a defence ; but that it
is not a full defence, or it has been informally offered
by way of plea, or it has not been properly supported
by answer, so that the truth of it is doubtful. For if
a plea requires an answer to support it, upon argu-
ment of the plea the answer may be read to counter-
prove the plea ; and if the defendant appears not to
have sufficiently supported his plea by his answer the
plea must be over-ruled, or ordered to stand for an
answer only(Z>). A plea is usually ordered to stand
for an answer, where it states matter which may be a
defence to the bill, though perhaps not proper for a
plea, or informally pleaded (c). But if a plea states

(a) Harris v. Inglcdevo, 3 v. Hart, 1 Vern. 110. S. C.
P. Wms. 94, 95. ibid. 201. Kemp v.

(b) See Hildyard v. Crcssy, Prec. in Cha. 544. Salkeld v.
3 Atk. 304. Science, 2 Vez. 107. Whitbrcad

304 PLEAS.

nothing which can be a defence it is merely over-
ruled. If a plea is ordered to stand for an answer, it
is allowed to be a sufficient answer to so much of the
bill as it covers (c), unless by the order liberty is
given to except (d). But that liberty may be qua-
lified, so as to protect the defendant from any parti-
cular discovery which he ought not to be compelled
to make (e). And if a plea is accompanied by an
answer, and is ordered to stand for an answer, with-
out liberty to except, the plaintiff may yet except to
the answer, as insufficient to the parts of the bill not
covered by the plea (/). If a plea accompanied by
an answer is allowed, the answer may be read
at the hearing of the cause to counterprove the
pleafe).

There are some pleas which are pleaded with such
circumstances that their truth cannot be disputed ;
and others being pleas of matter of fact, the truth of
which may be immediately ascertained by mere in-

S. C. 2 Ves. & B. 153, n. Whit-
church v. Bevis, 2 Bro.C. C.559.
Woodv. Strickland, 2 Ves. & B.
150.

(rf) Sellun v. Leiven, 3 P.
Wms. 239. Maitland v. Wil-
son, 3 Atk. 814. See Dryden
v. Robinson, 2 Sim. & Stu. 529.

(e) See Alardes v. Campbell,
Bunb. 265. S. C. 1 Turn. R.
133, note. Herbert v. Montagu,

Finch R. 117. Brereton v.
Gamut, 2 Atk. 240. Pusey v.
Desbouvrie, 3 P. Wms. 315.
King v. Holcombe, 4 Bro. C. C.
439. Bayley v. Adams, 6 Ves.

586.

(J") Coke v. Wilcocks, Mos.

73-

(g) 3 Atk. 304. But the
plaintiff may not amend his bill
as of course after a plea to part
of the bill has been allowed.
Taylor v. Shaw, 2 Sim. & Stu.
12.

PLEAS. 305

quiry, it is usually referred to one of the masters of
the court to make the inquiry. These pleas, therefore,
are not usually argued (It). Thus pleas of outlawry
or excommunication, being always pleaded sub sigillo,
the truth of the fact pleaded is ascertained by the
form of pleading, and the suit is consequently de-
layed until the disability shall be removed, unless the
plaintiff can show that the plea is defective in form,
or that it does not apply to the particular case, and
for these purposes he may have the plea argued.
Pleas of a former decree (j), or of another suit de-
pending (k), are generally referred to a master to in-
quire into the fact ; and if the master reports the
fact true, the bill stands instantly dismissed, unless
the court otherwise orders (/). But the plaintiff may
except to the master's report, and bring on the mat-
ter to be argued before the court (?w) ; and if he
conceives the plea to be defective, in point of form
or otherwise, independent of the mere truth of the
fact pleaded, he may set down the plea to be argued
as in the case of pleas in general (>?).

(k) Ord. in Ch. 175, Ed.Bea. (m) Durrand v. Hutchinson,

(i) Morgan v. Morgan, 1 Mich. 1771, on Exceptions.

Atk. 53. (n) Ord. in Ch. 176, Ed.Bea.

(A) Ord. in Ch. 98. ed. 1739. See Urlin v. , 1 Vern. 332.

(I) See Crofts v. Worthy, and Foster v. Vassal!, 3 Atk.

l Ca. in Cha. 241. See above, 587.
pp. 237. 246.

CHAP.

( 306 )

CHAPTER II.

SECTION II.

PART III.

Of Answers and Disclaimers ; and of Demurrers,
Pleas, Answers and Disclaimers, or any two or
more of them, jointly.

1 F a plea is over-ruled the defendant may insist on
the same matter by way of answer (a). And what-
ever part of the bill is not covered by demurrer, or
plea, must be defended by answer (b), unless the de-
fendant disclaims. In treating of answers and dis-
claimers will be considered, l, The general nature
of answers ; 2, Their form ; 3, The manner in which
their sufficiency is decided upon, and deficiency
supplied ; and 4, The nature and form of dis-
claimers.

1 . It has been already (c) mentioned, that every
plaintiff is entitled to a discovery from the defendant
of the matters charged in the bill (d), provided they are

(a) 2 Ves. 492. Earl of is entitled to put in a separate
Suffolk v. Green, 1 Atk. 450. answer, although they should
1 Cox R. 228. have but Qne common defence.

(b) Prac. Reg. Wy. Ed. rr „ .

, i _, Van Saudau v. Moore, 1 Russ.

{d) Where the defendants R- 44*. on appeal. See S. C.
are numerous, each, it seenas, 2 Sim. & Stu. 509.

ANSWERS. 307

necessary to ascertain facts material to the merits of
his case, and to enable him to obtain a decree. The
plaintiff may require this discovery, either because
he cannot prove the facts, or in aid of proof, and to
avoid expense (e). He is also entitled to a discovery
of matters necessary to substantiate the proceedings,
and make them regular and effectual in a court of
equity (f). However, if the discovery sought by a
bill is matter of scandal, or will subject the defendant
to any pain, penalty, or forfeiture, he is not bound to
make it (g) ; and if he does not think proper to defend
himself from the discovery by demurrer or plea, ac-
cording to the circumstances of the case, he has been
permitted by answer to insist that he is not obliged
to make the discovery (h). In this case the plaintiff

(e) 2 Atk. 241. 15 Ves. 378. 1 Ball & B. 325.

(y) 2 Ves. 492. 6 Ves. And see Lord Ranclijfe v. Par-

37> 38, Coop. R. 214. kyns, 6 Dow P. C. 230, but see

(<r) 15 Ves. 378; and see Oveyv. Leighton, 2 Sim.& Stu.

authorities cited above, p. 193. 234). It seems that in every

(Jt) 3 P. Wms. 238. Finch other case, even in that of a mere

v. Finch, 2 Ves. 491. Honey- witness being made a defend-

tvood v. Selivin, 3 Atk. 276. ant, (see Coohon v. Ellison, 2

Paxtonv. Douglas, igVes.225. Bro. C. C. 252, Cartivright v.

Parkhurst v. Lowten, 1 Meriv. Hately, 3 Bro. C.C. 238, Shcp-

391. 1 Swanst. 192. 305. It herd v. Roberts, 3 Bro. C. C.

has also been held, that a pur- 239, 7 Ves. 288, 11 Ves. 42,

chaser for a valuable consider- but see Newman v. Godfrey,

ation, without notice, may by 2 Bro. C. C 332), unless per-

answer protect himself from haps he be a professional per-

making discovery of facts which son, and the discovery be sought

might defeat his enjoyment. of matters confidentially com-

(Jerrard v. Sanders, 2 Ves. jun. municated to him, {Stratford v.

454. S. C. 4 Bro. C. C. 322. Hogan, 2 Ball & B. 1G4.) if

X 2

308 ANSWERS.

may except to the defendant's answer as insufficient %
and upon that exception it will be determined whether
the defendant is or is not obliged to make the disco-
very (i). If the defence which can be made to a
bill consists of a variety of circumstances, so that it is
not proper to be offered by way of plea (k) ; or if it is
doubtful whether as a plea it will hold ; the defendant
may set forth the whole by way of answer, and pray
the same benefit of so much as goes in bar, as if it
had been pleaded to the bill (/). Or if the defendant
can offer a matter of plea which would be a complete
bar, but has no occasion to protect himself from any
discovery sought by the bill, and can offer circum-
stances which he conceives to be favourable to his
case, and which he could not offer together with a
plea, he may set forth the whole matter in the same

a person answers at all, he may taken below, pp. 310, 31 1,312,

be required to answer all the between the cases in which the

facts stated in the bill, from defendant by answer denies the

which he does not distinctly title of the plaintiff, in respect

protect himself from answering of which the disco very is sought,

by either of the other modes of and those in which he thereby

defence. See D older v. Lord denies the validity of the ground

Huntingjield, 11 Ves. 283, in upon which that title is alleged

which the earlier cases are by the plaintiff to be founded,

cited, Faulder v. Stuart, 11 And see below, p. 316, note (q).
Ves. 296, Shaw v.a Ching, 11 (-} g Veg ^ ^. &nd ^

Ves. 303, Rome v. Teed, 15 , Ves> . ^ note<
Ves. 372, SomerviUe v. Mac-
hay, 16 Ves. 382, Leonard v. (*) Chapman v. Turner, 1

Leonard, 1 Ball & B. 323, 3 &■&■- 54-

Madd. 70, v. Harrison, (7) See Norton v. Turvill?

4 Madd. 252 & 1 Sim. & Stu.6. 2 P. Wms. 144.
See, however, the distinction

ANSWERS. 3O9

manner. Thus, if a purchaser for a valuable consi-
deration, clear of all charges of fraud or notice, can
offer additional circumstances in his favour, which he
cannot set forth by way of plea, or of answer to sup-
port a plea as the expending a considerable sum of
money in improvements, with the knowledge of the
plaintiff, it may be more prudent to set out the
whole by way of answer than to rely on the single
defence by way of plea, unless it is material to prevent
disclosure of any circumstance attending his title.
For a defence which, if insisted on by plea, would
protect the defendant from a discovery, will not in
general do so if offered by way of answer (/). To so
much of the bill as it is necessary and material for
the defendant to answer (?)i) he must speak directly,
and without evasion, and must not merely answer the
several charges literally, but he must confess or tra-
verse the substance of each charge (;z). And wherever
there are particular precise charges (0) they must be
answered particularly and precisely, and not in a gene-
ral manner, though the general answer may amount

(I) 2 Eq. Ca. Ab. 67. Bea. Hind v. Dods, Barnard,

Richardson v. Mitchell. Sel. 258. S. C. 2 Eq. Ca. Ab. 69.

Ca. in Ch. 51. Above, p. 307, Deane v. Rastron, Anstr. 64.

note (//). 2 Ves. & B. 1C2. And see

(in) It seems, a mere trus- Hall v. Bodily, 1 Vern. 470.
tee, incumbrancer, or heir, need (0) These, however, it seems,

answer so much only of the bill to the end mentioned in the

as applies to him. Coop. R. text, must be specially interro-

2 1 5. And further, with respect gated to. See King v. Marissal,

to materiality of answer, see 3 Atk. 1 92, Durant v. Durantt

below, 316, note (q). 1 Cox R. 58.

(») Ord. in Ch. 28. 179. Ed.

x 3

310 ANSWERS.

to a full denial of the charges (p). Thus where a
bill required a general account, and at the same time
called upon the defendant to set forth whether he had
received particular sums of money specified in the
bill, with many circumstances respecting the times
when, and of whom, and on what accounts such
sums had been received, it was determined, that
setting forth a general account by way of schedule to
the answer, and referring to it as containing a full
account of all sums of money received by the de-
fendant, was not sufficient, and the plaintiff having
excepted to the answer on this ground, the exception
was allowed ; the Court being of opinion that the de-
fendant was bound to answer specifically to the spe-
cific charges in the bill, and that it was not sufficient
for him to say generally, that he had in the schedule
set forth an account of all sums received by him (g).

Although the defendant by his answer denies the
title of the plaintiff, yet in many cases he must make
a discovery prayed by the bill, though not material to
the plaintiff's title, and though the plaintiff, if he has
no title, can have no benefit from the discovery. As
if a bill is filed for tithes, praying a discovery of the
quantity of land in the defendant's possession, and of
the value of the tithes, though the defendant insists
upon a modus, or upon an exemption from payment

(p) 2 Eq. Ca. Ab. 67. Pax- And see Amhurst v. King,

ton's case, Sei. Ca. in Ch. 53. 2 Sim- & Stu. 183.

Front v. Undenvood, 2 Cox R. (q) Hepburn v Durand,

n ,r ' 20th Nov. 1770, in Chan. S. C.

135. 6 Ves. 792. Wharton v. rep> , Brf) c c ^ . but see

Wharton, 1 Sim. & Stu. 235. White v. Williams, 8 Ves. J93.

ANSWERS. 311

of tithes, or absolutely denies the plaintiff's title (r),
he must yet answer to the quantity of land and value
of the tithes (s). Or if a bill is filed against an
executor by a creditor of the testator, the executor
must admit assets, or set forth an account, though he
denies the debt (£).

But where the defendant sets up a title in him-
self, apparently good, and which the plaintiff" must
remove to found his own title, the defendant is not
generally compelled to make any discovery not ma-
terial to the trial of the question of title. Thus,
where a testator devised his real estate to his nephew
for life, with remainder to his first and other sons in
tail, with reversion to his right heirs, and made his
nephew executor and residuary legatee of his will,
and on the death of the nephew his son entered as
tenant in tail under the will ; upon a bill filed by the
heir at law of the testator, insisting that the son was
illegitimate, that the limitations in the will were
therefore spent, and the plaintiff became entitled, as
heir to the real estate, and praying an account of the
personal estate, and application in discharge of debts
and encumbrances on the real estate, the defendants
against whom the account was sought insisted on the
title of the son as tenant in tail under the will, and
that they were not bound to discover the personal
estate until the plaintiff had established his title. Ex-

(r) See, however, Gilb. Ca. (/) Randal v. Head, Hardr.
in Cha. 229. 188. See Sweet v. Young,

(s) Langham v. , Hardr. Ambl. 353. 1 1 Ves. 304.

130-

X 4

312 ANSWERS.

ceptions having been taken to the answer, and allowed
by the Master, on exception to his report, the excep-
tions to the answer were over-ruled ; the Court distin-
guishing this case, which showed a prima facie title
in the defendant, the son of the nephew, from a mere
denial of the plaintiff's title (2^).

So when a bill claimed the tithe of rabbits on an
alleged custom, and the defendant denied the cus-
tom, it was determined that the defendant was not
bound to set forth an account of the rabbits alleged
to be tithable (x) ; and a like determination was
made upon a claim of wharfage, against common
right, the title not having been established at law (y).

But where a discovery is in any degree connected
with the title, it should seem that a defendant cannot
protect himself by answer from making the discovery ;
and in the case of an account required, wholly inde-
pendent of the title, the Court has declined laying
down any general rule (z), deciding ordinarily upon
the circumstances of the particular case. Thus, to a
bill stating a partnership, and seeking an account of
transactions of the alleged partnership, the defendant
by his answer denied the partnership, and declined
setting forth the account required, insisting that the
plaintiff was only his servant ; and the Court, con-

(u) Gethin v. Gale, 29 Oct. 0) Randal v. Head, Hardr.

1739, in Chan. M. R. Ambl. 188. S. C. 1 Eq. Ca. Ab. 35.

354, cited in Sweet v. Young. (y) Northleigh v. Luscomber

See also Gunn v. Prior, cited Ambl. G12.

11 Ves. jun. 291. S. C. Dick. (z) Hallv. Noyes, Ld. Chan.

(357. 1 Cox R. 197. 13 March 1792.

ANSWERS. 315

ceiving the account sought not to be material to the
title, over-ruled exceptions to the answer, for not
setting forth the account (a). And where a plea has
been ordered to stand for an answer, with liberty to
except to it as an insufficient answer, the Court has
sometimes limited the power of excepting, so as to
protect the defendant from setting forth accounts not
material to the plaintiff's title, where that title has
been very doubtful (b).

If an answer goes out of the bill to state some
matter not material to the defendant's case, it will
be deemed impertinent, and the matter, upon appli-
cation to the court, will be expunged (c). So in an
answer, as in a bill, if any thing scandalous is in-
serted the scandal will be expunged by order of the
Court (d). But, as in a bill, nothing relevant will
be deemed scandalous (e).

2. An answer usually begins by a reservation to

{a) Jacobs v. Goodman, in (c) Alsager v. Johnson, 4

Exch. 16 Nov. 1791. S. C. rep. Ves. 217. Norway v. Roxve,

3 Bro. C. C. 487, note; and 1 Meriv. 347. French v.

2 Cox R. 282. See Hall v. Jacko, ibid. 357, note. Beau-
Noyes, 3 Bro. C.C. 483. Mar- mont v. Beaumont, 5 Madd. 51.
quis of Donnegal v. Stewart, Parker v. Fairlie, 1 Sim. &

3 Ves. 446. Phclips v. Cancy, Stu. 295. 2 Sim. & Stu. 193.

4 Ves. 107. 11 Ves. 42. 293. (d) Peck v, Peck, Mosely, 45.
Webster v. Threlfall, 2 Sim. & Smith v. Reynolds, Mosely, C9

Stu. 1 90 ; but see v. liar- Ord. in Cba. 25. Ed. Bea.

rison, 4 Madd. 252. Corbctt v. Tottenham, 1 Ball.

(6) Earl of Strafford v. & Bea. Cl. Barnes v. Saxby,

Blakcxvay, 6 Bro. P. C. 630. 3 Swanst. 232, n.
Toml. Ed. King v. Holcombe, (e) Mosely, 70. 1 Ball & B.

4 Bro. C C. 439. Bayley v. 61 ; and see Lord St. John v.

Adams, G Ves. 586. Lady St. John, u Ves. 52G.

314 ANSWERS.

the defendant of all advantage which may be taken
by exception to the bill, a form which has probably
been intended to prevent a conclusion that the defen-:
dant, having submitted to answer the bill, admitted
every thing which by his answer he did not expressly
controvert, and especially such matters as he might
have objected to by demurrer or plea. The answers
to the several matters contained in the bill, together
with such additional matter as may be necessary
for the defendant to show to the court, either to
qualify or add to the case made by the bill, or to state
a new case on his own behalf, next follow, with a
general denial of that combination which is usually
charged in a bill(/). It is the universal practice to
add by way of conclusion a general traverse or denial
of all the matters in the bill. This is said (g) to have
obtained when the practice was for the defendant
merely to set forth his case, without answering every
clause in the bill. Though, perhaps, rather imper-
tinent if the bill is otherwise fully answered, and it
has been determined to be in that case unnecessary (/?,),
it is still continued in practice. In the case of an
infant the answer is expressed to be made by his
guardian (i) ; and the general saving at the beginning,
together with the denial of combination, and the tra-
verse at the conclusion, common to all other answers,
are omitted. For an infant is entitled to the benefit
of every exception which can be taken to a bill,

{/) See above, p. 40. (h) 2 P. Wras. 87.

{g) 2 P. Wms. 87. (i) See above, p. 103.

ANSWERS. 315

without expressly making it; he is considered as in-
capable of the combination charged in the bill ; and
his answer cannot be excepted to for insufficiency (h).
The answer of an idiot or lunatic is expressed to be
made by his committee as his guardian, or by the
person appointed his guardian by the Court to defend
the suit (i). An answer must be signed by counsel (&),
unless taken by commissioners in the country under
the authority of a commission issued for the purpose ;
in which case the signature by counsel is not re-
quired (/), the commissioners being responsible for
the propriety of its contents, as it is supposed to be
taken by them from the mouth of the defendant,
which in fact was formerly done (pi).

3. If a plaintiff conceives an answer to be insuf-
ficient to the charges contained in the bill he may
take exceptions to it, stating such parts of the bill as
he conceives are not answered, and praying that the
defendant may in such respects put in a full answer
to the bill (w). These exceptions must be signed by
counsel (0), and are then delivered to the proper
officer, which must be done within a limited time,

(h) Copeland v. Wheeler, 4 (I) 3 Atk. 440.

Bro. C.C.256. Lucas v.Lucas, (in) See Brotvn v. Bruce,

1.3VCS. 274. 1 Ball & Bea. 553. 2 Meriv. 1.

It has been determined also, («) See Marsh v. Hunter, 3

that the answer of the attorney Madd. 437, and the cases there

general cannot be excepted to. referred to, in note. Hodgson

Davison v. Attorney-General, v. Butierfield, 2 Sim.&Stu.236.

Exchequer, 30 June 1813. (0) Candler v. Partington,

(i) See above, p. 103. C Madd. 102. Yates v. Hardij,

(k), 2 Vcs. & B. 358. 1 Jac. It. 223.

3l6 ANSWERS.

according to the course of the court (o), though upon
application further time is allowed for the purpose,
within certain restrictions (p). If the defendant
conceives his answer to be sufficient, or for any other
reason does not submit to answer the matters con-
tained in the exceptions, one of the Masters of the
court is directed to look into the bill, the answer
and the exceptions, and to certify whether the
answer is sufficient in the points excepted to or
not(^). If the Master reports the answer insuf-
ficient in any of the points excepted to, the defendant
must answer again to those parts of the bill in which
the Master conceives the answer to be insufficient; un-
less by excepting to the Master's report he brings the
matter before the court, and there obtains a different
judgment (7*). But if the defendant has insisted on
any matter as a reason for not answering, though he
does not except to the Master's report, yet he is not
absolutely precluded from insisting on the same

(0) 3 Atk. 19. Thomas v. not answered, see Agar v. Re-

Lleivellyn, 6 Ves. 823. gent's Canal Comp. Coop. R,

, , _.. 212, Hirst v. Pierce, 4 Pri.

dp) Anon. 3 Atk. 19. 14 Ves. Ex R> ^ y> ^.^

536. Baring v. Prinsep, 1 ^ J_ ^ & R ^ Am_

' ** ' hurst v. King, 2 Sim. & Stu.

(q) Ord. in Cha. 53. Ed. 183.

Bea. Partridge v. Haycraft, (r) Anon. 3 Atk. 235. Horn-

11 Ves. 570. 11 Ves. 577. by v. Pemberton, Mos. 57.

1 Ves. & B. 333. As to the Worthington v. Foxhall, 3

right of the Masters to exercise Barnard. 261 . Finch v. Finch,

a discretion with regard to the 3 Vez. 491. 11 Ves. 577.
materiality of interrogatories

ANSWERS. 317

matter in a second answer (*), and taking the opinion
of the Court whether he ought to be compelled to
answer further to that point or not (/).

Where a defendant pleads or demurs to any part
of the discovery sought by a bill, and answers like-
wise, if the plaintiff takes exceptions to the answer
before the plea or demurrer has been argued, he ad-
mits the plea (u) or demurrer (>) to be good ; for
unless he admits it to be good it is impossible to
determine whether the answer is sufficient or not.
But if the plea or demurrer is only to the relief
prayed by the bill, and not to any part of the dis-
covery, the plaintiff may take exceptions to the
answer before the plea or demurrer is argued (j/).
If a plea or demurrer is accompanied by an answer
to any part of the bill, even a denial of combination
merely, and the plea or demurrer is over-ruled, the
plaintiff must except to the answer as insufficient (0).
But if a plea or demurrer is filed without any answer,
and is over-ruled, the plaintiff need not take excep-
tions, and the defendant must answer the whole bill
as if no defence had been made to it (#).

(s) Finch v. Finch, 2 Vez. (x) See Boyd v. Mills, 13

491. See Ovey v. Lcighton, Ves. 85.

2 Sim. & Stu. 236. ^ 3 p Wms< 327< Note s

(0 As to the practice in case See however 2 Atk. 390.
the defendant should put in

successively as many as four (z) ^oies v* Turner, Bunb.

insufficient answers, see Far- 123-

quharson v. Balfour, l Turn. (aHbid. As to the practice with

Jt. 184. reference to the obtaining of

(u) See Darnell v. Rcijny, time to answer in such a case see

1 Vern. 344. Trim v. Baker, 1 Sim. & Stu-

3*8 ANSWERS.

A further answer is in every respect similar to, and
indeed is considered as forming part of, the first an-
swer. So an answer to an amended bill is considered
as part of the answer to the original bill (b). There-
fore if the defendant in a further answer, or an
answer to an amended bill, repeats any thing con-
tained in a former answer (c), the repetition, unless
it varies the defence in point of substance, or is
otherwise necessary or expedient, will be considered
as impertinent (d) ; and if upon reference to a Master
such parts of the answer are reported to be imper-
tinent, they will be struck out as such, with costs,
which in strictness are to be paid by the counsel
who signed the answer (e).

4. A defendant may disclaim all right or title to
the matter in demand by the plaintiff's bill, or by
any part of it(/). But a disclaimer cannot often
be put in alone. For if the defendant has been
made a party by mistake, having at the time no
interest in the matter in question, yet as he may
have had an interest which he may have parted
with, the plaintiff may require an answer sufficient

469, S. C. on appeal, 1 Turn. (e) Smith v. Serle, 14 Ves.

R. 253, in accordance with 415.
Jones v. Saxby, mentioned 1 u\ g A_tk. 30*3.

Swanst. 194, note (a), and over-
ruling Griffith v. Wood, 1 Ves. ^ 0rd< in Cha- lC7- Ed.

& Bea. 541. Bea- l6 Ves. 234.

(5) 3 Atk. 303. Dick. 583. (/) SeeArchboMv.BorroId,

Spurrier v. Fitzgerald, 6 Ves. Cary R. C9. Seton v. Slade,

548 ; and see Ovey v. Leighton, 7 Ves. 265.
2 Sim. & Stu. 234.

ANSWERS. 3I9

to ascertain whether that is the fact or not ; and, if
the defendant has had an interest which he has
parted with, an answer may be also necessary to
enable the plaintiff to make the proper party, in-
stead of the defendant disclaiming. The form of a
disclaimer alone seems to be simply an assertion
that the defendant disclaims all right and title to the
matter in demand, and in some instances, from the
nature of the case, this may perhaps be sufficient ;
but the forms given in the books of practice are all
of an answer and disclaimer.

If the defendant disclaims, the Court will in gene-
ral dismiss the bill as against him with costs. But
it has been said, that if the plaintiff shows a probable
cause for exhibiting the bill, he may pray a decree
against the defendant, upon the ground of the dis-
claimer (Ji). Where the defendant disclaims the
plaintiff ought not to reply (i).

A defendant may demur to one part of a bill,
plead to another, answer to another, and disclaim as
to another. But all these defences must clearly
refer to separate and distinct parts of the bill. For
the defendant cannot plead to that part to which he
has already demurred ; neither can he answer to any
part to which he has either demurred or pleaded (Ji) ;
the demurrer demanding the judgment of the Court
whether he shall make any answer, and the plea
whether he shall make any other answer than what

(h) Prac. Reg. 175. Wy. Ed. (k) 2 Bro. Pari. Ca. 20,

(i) Prac. Reg. 176. Wy. Ed. 21.
3 Atk.582.

320 ANSWERS.

is contained in the plea. Nor can the defendant by
answer claim what by disclaimer he has declared he
has no right to(7). A plea(w) or answer (w) will
therefore over-rule a demurrer, and an answer (o)
a plea ; and if a disclaimer and answer are incon-
sistent, the matter will be taken most strongly against
the defendant upon the disclaimer.

(I) See the case of Seton v.
Slade, 7 Ves. 265.

(m) Dormer v. Fortescue,

1 Atk. 282. 3 P. Wms. 80, 81.
Arnold's case, Gilb. For. Rom.

59-

(n) Abraham v. Dodgson,

2 Atk. 157. 3 P. Wms. 81.
Sheruiood v. Clack, 9 Pri. Ex.
R. 259.

(0) Pierce v. Johns, Bunb.
11. Cottington v. Fletcher,
2 Atk. 155; 3 P. Wms. 81.
Dobbyn v. Barker, 5 Bro. P. C.
573, Toml. Ed. EarlqfClan-
rickard v. Bourke, 6 Bro. P. C.
4. Tom. Ed.; 1 Sim. & Stu. 6,
Watkins v. Stone, 2 Sim.& Stu.
560.

CHAP.

( 321 )

CHAPTER THE THIRD.

Of REPLICATIONS and their
CONSEQUENCES.

A Replication is the plaintiff's answer or reply,
to the defendant's plea or answer. Formerly, if the de-
fendant by his plea or answer offered new matter the
plaintiffreplied specially (a) ; otherwise the replication
was merely a general denial of the truth of the plea
or answer, and of the sufficiency of the matter alleged
in it to bar the plaintiff's suit, and an assertion of
the truth and sufficiency of the bill. The conse-
quence of a special replication was a rejoinder, by
which the defendant asserted the truth and sufficiency
of his answer, and traversed every material part of
the replication (Ji). If the parties were not then at
issue by reason of some new matter disclosed in the
rejoinder which required answer, the plaintiff might
surrejoin to the rejoinder, and the defendant might in
like manner ad-surrejoin, or rebut, to the surrejoin-
der (c). The inconvenience, delay, and unnecessary

(a) Ord. in Cha. 70, Ed. Bea. (c) West. Symb. Cha. 195. a.
(5) 2 West. Sym.Chan. 195. Prac. Reg. 371. Wy. Ed.
a. 232. b. 246. b.

322 REPLICATIONS.

length of pleading, arising from these various allega-
tions on each side (d), occasioned an alteration in the
practice. Special replications, with all their conse-
quences, are now out of use (e), and the plaintiff is
to be relieved according to the form of the bill, what-
ever new matters may have been introduced by the
defendant's plea or answer (f). But if the plaintiff
conceives, from any matter offered by the defendant's
plea or answer, that his bill is not properly adapted to «
his case, he may obtain leave (g) to amend the bill (h),
and suit it to his case, as he shall be advised (i). To
this amended bill the defendant may make such

(d) See Ord. in Cha. 70, Pitt v. Watts, 16 Ves. 126.
Ed. Bea. Covodell v. Tatlock, 3 Ves. & B.

(e) Prac. Reg. 372. Wy. Ed. 19. Lord Kilcourcy v. Ley, 4
Indeed if a plaintiff is disposed Madd. 212.

to controvert a part of a case (i) As to the extent to which

made by the defendant's answer, this liberty may be carried, see

and to admit the rest, he may 2 Sch. & Lefr. g. Seeley v.

still put in a replication so far Boehm, 2 Madd. R. 176. Maz-

special, that it is confined to zaredov.Maitland, 3 Madd. 66.

the particular matter contro- As to the consequence of mak-

verted, instead of being a ge- ing an entirely new case by the

neral denial of the truth of the amendment, see Muvor v. Dry,

whole answer ; and then the 2 Sim. & Stu. 113. And as to

defendant is put only to proof the adding or striking out a

of the matter replied to. prayer for relief, see Butter-

(f) Prac. Reg. 372. Wy. worth v. Bailey, 15 Ves. 358.
Ed. Earl of Cholmondeley v. Lord

(g) See 1 Ves. jun. 448. Clinton, 2 Ves. & B. 113. But
(h) And this will be per- it may be observed that the

mitted after replication ; and plaintiff may not amend his

leave will be granted to the bill after plea to part thereof

plaintiff to withdraw the repli- has been allowed, without leave

cation and amend the bill. See of the Court. Taylor v. Shaiv,

Pott v. Reynolds, 3 Atk. 565, 2 Sim. & Stu. 12.

REPLICATIONS. 323

defence as he shall think proper, whether required by
the plaintiff to answer it or not (k).

According to the present course of the court, al-
though rejoinders are disused, yet the plaintiff, after
replication, must serve upon the defendant a subpoena
requiring- him to appear to rejoin, unless he will
appear gratis (/). The effect of this process is merely
to put the cause completely at issue between the parties.
For now, immediately after the defendant has ap-
peared to rejoin gratis, or after the return of a sub-
poena to rejoin served on the defendant, and which,
by order obtained of course is now usually made
returnable immediately, and served on the defendant's
clerk in court, the parties may proceed to the exami-
nation of witnesses to support the facts alleged by
the pleadings on each side (?n). Where by mistake
a replication has not been filed, and yet witnesses
have been examined, the Court has permitted the
replication to be filed nunc pro tunc (it).

(k) The original bill is ren-
dered nugatory by amendment,
3 Madd. 429 ; and if the altera-
tion be so considerable as, ac-
cording to the practice of the
court, to make it necessary
that a new ingrossment should
be filed as of record, counsel's
signature must be affixed there-
to. Kirkleij v. Burton, 5 Madd.
378. Webster v. Threlfall,
1 Sim. & Stu. 135. Pitt v.
Macklexv, 1 Sim. & Stu. 13G. n.

(/) Anon. Mos. 123. 296-
Flower v. Herbert, Dick. 349.

(in) Mosely, 296. Prac Reg.
371. Wy. Ed. It may be no-
ticed that leave will in some
instances be given to withdraw
a rejoinder and rejoin de novo.
See Berks v. Wigan, 1 Ves. &
B. 221. Briclcwood v. Miller,
1 Meriv. 4.

(n) Rodney v. Hare, Mosely,
29G.

CHAP.

Y 2

( 324 )

CHAPTER THE FOURTH.

Of INCIDENTS to PLEADINGS
in GENERAL.

IN the preceding chapters have been considered the
nature of the pleadings used in the equitable jurisdic-
tion of the court of chancery, and the manner in which
they are brought to a termination. Before the pro-
ceedings arrive at that point the Court will frequently
permit the pleadings filed to be altered, as the purposes
of parties may require («), except in the case of answers
put in upon oath, in which the Court, for obvious
reasons, will not easily suffer any change to be made (Z>).

(a) As to the amendment of not as formerly, (see 3 Barn,
bills, see above, pp. 55. 322 ; 51, 2 Eq. Ca. Ab. 60, Whar-
of demurrers, Glegg v. Legh, ton v. Wharton, 2 Atk. 294,
4 Madd. 208, Thorpe v. Ma- Dagly v. Crump, Dick. 35,
caulay, 5 Madd. 218, and Bedford v. Wharton, Dick. 84,
above, p. 214; and of pleas, Patterson v. Slaughter, Ambl.
Dobson v. Leadbeater, 1 3 Ves. 292 ; and cases cited, 1 Ves. &
230. Merretvether v. Mellish, B. 150, note (a), 10 Ves. 285,
13 Ves. 435. Wood v. Strick- 401,) give leave to amend the
land, 2 Ves. & B. 150. Thomp- answer itself, except in the
son v. Wild, 5 Madd. 82. case of an infant defendant,

(b) A special application is (Savage v. Carroll, 1 Ball & B.
necessary for the purpose, 548,) and except in eases of
4 Madd. 27, and the Court will mere clerical error, (Griffiths v.

INCIDENTS TO PLEADINGS. 325

After the examination of witnesses (c) no part of the
pleadings can be altered or added to, but under very
special circumstances, or in consequence of some sub-
sequent event, except, that if the plaintiff at any time
discovers that he has not made proper parties to his
bill, he may obtain leave to amend his bill for the special
purpose of adding the necessary parties (d) ; and leave
has also been given to amend the prayer under par-

Wood, 11 Ves. 62, Peacock
v. Duke of Bedford, 1 Ves. &
B. 186, White v. Godbold,

1 Madd. R. 269, Fair cloth
v. Webb, 5 Madd. 73, but see
Ridley v. Obee, Wightw. 32,)
but, upon its conscience being
satisfied that the defendant
ought not to be concluded by
the answer as upon record,
(10 Ves. 401, 4 Madd. 27,
and see Tennant v. Wilsmore,

2 Anstr. 362,) if the matter
already brought forward be
ambiguously stated, and it ap-
pear that the defendant meant
to swear to it in the sense
which he seeks upon his appli-
cation to put upon it, (Livesey
v. Wilson, 1 Ves. & B. 149,)
or if it be desired to introduce
new matter, and it appear that
the defendant, at the time of
putting in the original answer,
was not aware thereof, [Wells
v. Wood, 10 Ves. 401,) it will
permit a supplemental answer
to be filed, [Jennings v. Merlon
College, 8 Ves. 79, 10 Ves.

285, 19 Ves. 584, Curling v.
Marquis Tovmshend, 19 Ves.
628, Strange v. Collins, 2 Ves.
& B. 1C3, Edivards v. M'Leay,
2 Ves. & B. 256, 4 Madd. 407,)
as a mode by which justice may
be more surely administered,
19 Ves. 631.

(c) As to bills, see Wright
v. Hotvard, 6 Madd. 106, and
above, p. 55. Where no witness
has been examined, an amend-
ment has been permitted after
publication passed. Hastings
v. Gregory, in the Excheq.
19th Nov. 1782. 1 Fowl. Ex-
cheq. Pr. 127. Sanderson v.
Thxvaites, in Chan. Trim 1782.
With respect to answers see
Chute v. Lady Dacres, 2 Freem.
172. Mullins v. Simmonds,
Bunb. 18G. Kino-scote v. Bains-
by, Dick. 485. Tennant v.
Wilsmore, Anstr. 362.

(d) Anon. 2 Atk. 15. Good-
Voin v. Goodivin, 3 Atk. 370.
1 Prax. Aim. Cur. Cane. 54G.
See above, pp. 55. 322.

y 3

326 INCIDENTS TO PLEADINGS.

ticular circumstances (e). If any event happens which
alters the interest of any party, or gives any new
interest to any person not a party, the plaintiff may
file a supplemental bill, or bill of revivor, as the oc-
casion may require. And if the plaintiff thinks some
discovery from the defendant, which he has not ob-
tained, is necessary to support his case, he may file
a supplemental bill to obtain that discovery (/). He
may also file a supplemental bill to put in issue any
matter necessary to his case when he cannot obtain
permission to alter his original bill by amendment;
but he cannot upon such a supplemental bill exa-
mine witnesses to any matter in issue by the original

bin (g).

If upon hearing the cause the plaintiff appears
entitled to relief, but the case made by the bill is in-
sufficient to ground a complete decree, the Court will
sometimes give the plaintiff leave to file a supple-
mental bill, to bring the necessary matter, in addition
to the case made by the original bill, before the
court (h). If the addition of parties only is wanted (2),
an order is usually made for the cause to stand over,
with liberty to amend the bill by adding the proper
parties ; and in some cases where a matter has not
been put in issue by a bill with sufficient precision,
the Court has, upon hearing the cause, given the

(e) Cookv. Martin, 2 Atk. 2. twin, 3 Atk. 371. Usborne v.
Harding v. Cox, 3 Atk. 583. Baker, 2 Madd. R. 379.

Palk v. Lord Clinton, 1 2 Ves. (g) Bagenal v. Bagenal,

jun. 48. 6 Bro. P. C. 81. Toml. Ed.

(f) Boeve v. SJciptvith, 2 Ch. (A) 3 Atk. 133.

Rep. 142. Goodwin v. Good- (i) See above, pp. 55. 322.

INCIDENTS TO PLEADINGS. 327

plaintiff liberty to amend the bill for the purpose
of making the necessary alteration (k).

The Court considering infants as particularly un-
der its protection will not permit an infant plaintiff
to be injured by the manner in which his bill has
been framed. Therefore, where a bill filed on behalf
of an infant submitted to pay off a mortgage, and
upon hearing the cause the Court was of opinion that
the infant was not bound to pay the mortgage, it
was ordered that the bill should be amended by
striking out the submission (/). And where a matter
has not been put by the bill properly in issue, to the
prejudice of the infant, the Court has generally or-
dered the bill to be amended (m).

A like indulgence has been granted to a defendant
when upon hearing a cause it has appeared that he has
not put in issue by his answer facts which he ought to
have put in issue, and which must necessarily be in
issue to enable the court to determine the merits of the
case, the defendant being permitted to amend his an-
swer by stating those facts. This has formerly been
done in the Exchequer, where a modus had been setup
as a defence to a bill for tithes ; and it appeared from
the evidence in the cause that there was probably a
good ground for opposing the plaintiff's claim, though
the defendant had mistaken it, and the Court per-

{k) FilJcin v. Hill, 4 Bro. P.C. (I) 1 P. Wms. 428.

C40. Toml. Ed. As to practice (m) See p. 27. Napier v.

in case of neglect to amend Lady Effingham, 2 P. Wms.

within a reasonable time, see 401.403. And see Bcnnetv.

Cox v. Allingham, 3 Madd. Lee, 2 Atk. 529.

393-

Y 4

328 INCIDENTS TO PLEADINGS.

mitted him to amend his answer (n) ; but this has
been refused in other cases. Where an answer has
been prejudicial to a defendant from a mere mistake ;
upon evidence of the mistake an amendment has
been permitted (0). This indulgence has been ex-
tended, after much consideration, beyond mere mis-
take, where by the answer an important fact was
imperfectly put in issue, and no witness had been
examined, the cause being heard on bill and an-
swer (/?). In general, however, this indulgence is
confined to mere mistake or surprise (0). A dis-
tinction has also been made between the admission
of a fact, and the admission of a consequence in
law or in equity (r). Where a defendant after putting
in an answer discovered a ground of defence to the
bill of which he was not before informed, a pur-
chase by the person under whom he claimed without
notice of the plaintiff's title, which could only be
used by way of defence, and could not be the ground
of a bill of review, the Court allowed the answer to

(n) Phillips v. Gtvynne, Ex- On appeal to the Chancellor

chequer, Easter, 1779. See the order was affirmed, 19th

also Filkin v. Hill, 4 Bro. P. C. March 1735. MS. N. Countess

640. Toml. Ed. 2 Anstr. 443. of Gainsborough v. Gifford,

(0) Countess of Gainsborough (since reported 2 P.Wms. 424,)

v. Gifford, 2 P. Wms. 424. cited as determined on several

(p) Powell v. Hill, in Chan, precedents. But see Sorrell v.

The cause came first before the Carpenter, 2 P. Wms. 482.

Master of the Rolls, who made (q) 2 Bro. C. C. 619. See

an order, giving liberty to the Chute v. Lady Dacres, 2 Freem.

plaintiff to amend the bill, and 173.

to the defendant to amend the (r) See Pearce v. Grove,

answer, to which the plaintiff 3 Atk. 522, and S. C. Ambl.

might reply and go to issue. 65, but very differently stated.

INCIDENTS TO PLEADINGS. 32$

be taken off the file, and the new matter to be added,
and the answer re-sworn (s). Where a fact which
may be of advantage to a defendant has happened
subsequent to his answer, it cannot with propriety be
put in issue by amending his answer. If this appears
to the court on the hearing, the proper way seems to
be to order the cause to stand over till a new bill in
which the fact can be put in issue be brought to a
hearing with the original suit (t) ; and a bill for this
purpose seems to be in the nature of a plea puis
darrein continuance at the common law.

Sometimes, upon hearing of a cause, it has ap-
peared that a matter properly in issue, or at least
stated in the proceedings, has not been proved against
parties who have admitted it by their answers, al-
though not competent so to do for the purpose of
enabling the Court to pronounce a decree. In these
cases the Court has permitted the proper steps to be
taken to obtain the necessary proof ; and for this pur-
pose has suffered interrogatories to be exhibited («) ;
and where the plaintiff has neglected to file a necessary
replication has allowed him to supply the defect (x).
Thus, where a bill was filed on behalf of creditors, for
satisfaction out of real and personal estates devised

(s) Patterson v. Slaughter, see 3 P. Wms. 289. Smith v.

Ambl. 29-2. As to amending an Allhus, 11 Ves. 564. Willan

ansvver,and filing a supplemental v. Willan, 19 Ves. 590. S. C.

answer instead of amending and Coop. R. 291. Sxvinford v.

reswearing the original answer, Home, 5 Madd. 379. Moons

see above, p. 324, note, (b). v. De Bernales, 1 Russ. R. 301.

(t) Haync v. Hayne, 3 Ch. Abrams v. Winshrip, 1 Russ. R.

Rep. 19. 526-

(u) See 2 P. Wms. 463 ; and (x) See above, p. 323.

S30 INCIDENTS TO PLEADINGS.

to trustees for that purpose, and, subject to that
charge, in strict settlement, and the answers of the
tenant for life, and of the first remainder-man in tail,
who was an infant, were not replied to, the Court,
on hearing, directed that the plaintiff should be at
liberty to reply to those answers, and exhibit in-
terrogatories, and prove their debts against those
defendants, as they had before proved them against
the trustees; and reserved the consideration of the
directions necessary to be given upon such new
proof (u).

In most of these cases the indulgence given by
the Court is allowed to the mistakes of parties, and
with a view to save expense. But when injury may
arise to others the indulgence has been more rarely
granted ; and so far as the pendency of a suit can
affect either the parties to it, or strangers, matter
brought into a bill by amendment will not have
relation to the time of filing the original bill, but
the suit will so far be considered as pendent only
from the time of the amendment (.r), except that
where a bill seeks a discovery from a defendant, and
having obtained that discovery, the bill is amended
by stating the result, it should seem that the suit
may, according to circumstances, be considered as
pendent from the filing of the original bill, at least
as to that defendant, and perhaps to the other par-
ties, if any, and to strangers also, so far as the
original bill may have stated matter which might

(«) Lambert v. Ashcroft, at (x) 2 Atk. 218.

the Rolls, 18th Feb. 1779.

INCIDENTS TO PLEADINGS. 331

include in general terms the subject of the amend-
ment.

Though in general, with respect to the original
parties, and their interests, no amendment will be
permitted after the cause is at issue, and witnesses
have been examined, and publication passed (j/) ;
yet a plaintiff has been permitted under such cir-
cumstances, to amend his bill by adding a prayer
omitted by mistake (2). Even upon the hearing, as
already noticed (a), the Court having the whole case
before it, and being embarrassed in its decision by
defects in the pleadings, has permitted amendments
both of bills (Z>) and answers (c), under very special cir-
cumstances. Where new matter has been discovered
by either plaintiff or defendant before a decree has
been pronounced deciding on the rights of the par-
ties, a supplemental or cross-bill has been permitted,
to brino- such matter before the court to answer the
purposes of justice, instead of allowing an amend-

(y) Anon. Barn. 222.2 Anstr. here it may be remarked, that

362. And see above, p. 325, an amendment of the bill will

and note. It may be observed, be permitted after a demurrer

that in such a case the plaintiff or a plea has been filed, but

must generally apply to the generally not, after it has been

Court for liberty to withdraw set down to be argued. Anon.

his replication, as well as to Mos. 301. Vernon v. Cue, Dick,

amend his bill. 1 Atk. 51. 358. 1 Ves. jun. 448. Carleton

Motteux v. Mackreth, 1 Ves. v. VEstrange, 1 Turn. R. 23.

jun. 142. 1 Turn. R. 24. See (b) See above, p. 55, note (m),

above, cases cited, p. 55, note, 326, 327.

and pp. 322, 323, notes (i) & (k). (c) See Countess of Gains-

(z) Harding v. Cox, 3 Atk. borough v. Giffbrdy 2 P. Wms.

583. 424- ! Cox R. 159, See

(rt) Pp. 32C, 327. 329. And above, p. 327.

332 INCIDENTS TO PLEADINGS.

ment of a bill or answer, where the nature of the
matter discovered would admit of its being so brought
before the court ; and after a decree, upon a similar
discovery, a bill of review, or a bill in nature of a
bill of review, has been allowed for the same pur-
pose, both those forms of proceeding being in their
nature similar to amendments of bills or answers,
calculated for the same purposes, and generally ad-
mitted under similar restrictions. It may how-
ever happen that by the mistake, or negligence, or
ignorance of parties, their rights may be so preju-
diced by their pleadings that the Court cannot per-
mit important matter to be put in issue by any new
proceeding without so much hazard of inconve-
nience, that it may be better that the individual
should suffer an injury than that the administration
of justice should be endangered by allowing such
proceeding.

INDEX.

PAGE.

Abatement - - - - 56. 60. 69. 100

by what circumstances occasioned - 56, et seq.

how suit restored ----- 60

see Death. Marriage.

ACCIDENT - - - 113.123.127,128.130

ACCOUNT 119,120.123

may be limited to the time of filing the bill - 274
stated, see Plea.

where there is error or fraud in, 259, notes. 263, note
see Answer.

ACKNOWLEDGMENT

with reference to the statute of limitations, 271,

and notes

ADDRESS, see Bill.

ADMINISTRATION

limited to subject of suit - 177 and note, 178

ADMINISTRATOR, see Plea negative.

AFFIDAVIT, see De bene esse. Delivery. Discovery of
Deeds or Writings. Execution. Interpleader. Per-
petuation of Testimony. Relief upon Deeds or
Wrili?igs. Review, Bill of. Supplemental Bill in
nature of Bill of.

INDEX.
AGENT, PAGE.

principal, in many cases, has a right to discovery

from 159

privity between his vendee and principal - ib.

notice to, is notice to principal - 278
see Interpleader.

AGREEMENT

specific performance of - - 118 and note, 119
by parol, effect of part performance - - 266

as to confession of, in answer to bill for

specific performance - 267
to refer to arbitration, see Plea.
not specifically performed, 264

ALIEN, see Discovery. Persons. Plea.

ALIENATION, pendente lite,

effect of, where compulsory - - 64, et sea.

where voluntary - 73, et seq. and notes

ALLEGATION,

as to frame and sufficiency of - 41, 42 and notes
see Demurrer.

AMENDMENT of pleadings generally - 17, 18

see Answer. Bill. Demurrer. Infant. Plea.

ANSWER - - _ _ 14,15.102.100.306

principal end of requiring - . - - 44
general nature of - ~0g

fo"nof, 306.3.3

where the proper mode of defence - _ o08

must not be evasive, but must meet substance of each
charge _

must be particular to particular charges 309, 310
manner in which sufficiency of determined, and defi-
ciency supplied - 006

INDEX.

ANSWER— continued. page.

as to materiality of - 3°9

may be referred for scandal or impertinence, 313. 318
where it must be signed by counsel - - 315

of a quaker ; of a moravian ; or of an infidel, as a jew

or a mahometan - - - - 10, note

of a trustee, incumbrancer, or heir - 309, note

of an infant _._,.-- 314

of an idiot or lunatic - 315

of a feme covert, see Married Woman.
of attorney general - 315 and note

overrules demurrer - - - - - 320

plea 299. 320

where defendant may thereby protect himself from

making full discovery - - 307 and note

discovery enforced by, if connected with plaintiff's

title 312

although plaintiff's title de_

nied 310»311>312

not enforced by, if ground of plaintiff's

title be denied - - - - -312
______ if counter title be set

up 311

as to discovery independent of plaintiff's title being
compelled - - - - - -312

where defendant sets up modus; denies plaintiff's

claim without admitting assets ; denies custom ;

or denies partnership and privity ; and declines to

set forth account - 310,311,312

amendment of, allowed, when - 324 note. 325 note.

327, 328, 329

at hearing - 327. 331

supplemental - 324, note

in support of plea, see Plea, and see - 239, et seq.

244 and note, 245. 298

INDEX.

ANSWER — continued. page.

in support of plea, may be excepted to - - 299
accompanying plea or demurrer, if the latter defence
be overruled, must be excepted to - - 317
read to counterplead plea - 299. 304

after plea or demurrer overruled - - 16. 306
further to original bill - - - - 18.318

insisting on same matter as first, after excep-
tions thereto allowed - - 316, 31 7 note
to amended bill - 318. 322
as to right of each defendant to file separately,

306, not
objecting to bill of revivor - 289, 290

as to such mode of defence to a bill of review 293
and disclaimer - - - - - -319

see Agreement. Combination. Defendant. De-
murrer. Exceptions. Infant. Interrogatories.
Plea. Statute of Frauds. Time. Trust.

APPEAL, see Remainder.

APPEARANCE

to original bill --_--_ ^r
to bill of revivor ----__ jj

ARBITRATOR, see Agreement. Demurrer. Plea.

ASSETS ------- 125.136

see Answer.

ASSIGNMENT without license, see Demurrer to Dis-
covery.

ASSIGNOR, see Parties.

ASSIGNEE

of party to a decree, bill by - - - 95

see Demurrer.

ATTAINDER, see Persons. Plea.

INDEX.

ATTORNEY, see Plea to Discovery.

ATTORNEY-GENERAL, 22&note. 99. 102. 169 & note,
see Answer. Crown. Defendant. Parties.

AVERMENTS, see Bill.

AVERMENTS IN PLEA

necessary - - 297

object of------- 298

must be sufficient to support it ib.

should in general be positive - 297

may be negative ------ 298

instances, 265 and note. 269. 277 note.

293
see Plea.

AWARD, see Plea.

BANKRUPT,

bill by, not stating his bankruptcy - 282, note

as to discovery by - 283, note

how to act where his assignees refuse to institute or

to prosecute a suit - - - 67, note

see Defendant. Demurrer. Plaintiff. Plea.

BANKRUPTCY

does not abate a suit, but merely renders it defective,

65 note, 66 & note, 67 note, 68 Sc note

commission how to be disputed - - 66, note

BARGAIN AND SALE

without enrolment - - - - -116

BILL IN CHANCERY

what proper object of ----- 8
what generally sought by - - - - 9
by whom it may be exhibited, see Persons. Plaintiff.

2 1 et seq.
z

INDEX.

BILL — continued. page.
against whom it may be exhibited, see Defendant,
Persons, and - - - - - 30 et seq.

must be signed by counsel - - - - 48

whence arises variety of - - - .' 17

the several kinds and distinctions of - 21. 109

the frame and end of the several kinds of -21

original 33-37

not original - - - - - - 33-55

in nature of original - - - 33

original, form of - - - - - - 42

- - - - usually consists of nine parts - - 42

1. Address - 42. 7

2. Names and descriptions of plaintiffs, 42

and note

3. Stating part - - - - 37. 41. 43

4. Allegation of confederacy and combina-

tion - - - - - 40, 41. 43

5. Charging part - 43. 47

6. Averment as to defect of remedy elsewhere,

43.44

7. Interrogating part - - 44, 45. 47

8. Prayer for relief, and discovery - 44, 45

9. Prayer for process - 37, 38. 45, 46
original, praying relief - 34. 37
- - - - not praying relief - 34. 51
praying general decree - - - - 34-37
of interpleader, see Interpleader, and 34. 37. 48. 141
praying writ of certiorari, see Certiorari, and 9. 34,

37-50
to perpetuate testimony, see Perpetuation, Plea, and

34. 51. 148

for discovery, see Costs, Deeds, Discovery and 34.

53- H8
of supplement, see Decree, Demurrer, Supplement, and

18. 34.61.64. 75. 326

INDEX.

BILL — continued. page.

of revivor, see Costs, Creditors, Decree, Demurrer,

Revivor, and - 35. 69. 76. 326

of revivor and supplement, see Demurrer, Hearing, and

35. 70. 80
cross, see Cross-bill, Hearing, and - - 35. 80

of review, see Answer, Demurrer, Hearing, Plea,

Review, and - 35. 80. 83

in nature of bill of review, see Demurrer, Hearing,

Review, and - - - - - 35. 80, 92

to impeach a decree on the ground of fraud, see

Decree, Plea and - - 35. 80. 92, 93, 94

to suspend the operation of a decree - 35. 80. 94

to carry a decree into execution, see Demurrer, Plea,

and - - - - - - - 35. 80. 95

in nature of bill of revivor, see Distinction, and 36. 71.

80.97
_ _ _ - — supplement, see Distinction, Sup-
plement, and 36. 65. 72. 80. 98
supplemental in nature of bill of revivor - - 68
_ __ ___ ___ _ review, see Supple-
mental, and ----- _go

amendment of, generally, 55 &, note. 207. 290. 324,

325 & note

• as to prayer - - 322 note. 331

. as to parties - - - 325, 326

as to extent to which liberty may be

carried - 322. 325 &, note

effect in relation to original bill 322,

323, note

after plea or demurrer filed 331, note

upon hearing of demurrer, 215 & note

after allowance of demurrer for want

of parties - - - - 181

after allowance of plea to part thereof,

not of course - - 322, note
z 2

INDEX.

BILL— continued. page.

amendment of, after liberty to make given at hearing

326,327.331
_ neglect of, prac-
tice on - - - 327> note

, where counsel's signature required to

323, note
see Assignee. Customs. De bene esse. Decree.
Delivery. Examination. Execution. New
Trial. Persons. Quia timet.

BONDS

lost 113

BOUNDARIES,

obliterated - - 117

CANCELLATION OF INSTRUMENTS, 128, 129 note

CERTIORARI,

proceedings upon a bill praying writ of - 50

see Bill. Defence. Plea.

CESTUI QUE TRUSTS, see Parties.

CHAMPERTY, see Demurrer to discovery.

CHANCERY, see Bill. Jurisdiction.

CHANCELLOR 7

CHATTELS, SPECIFIC,

detention of- - - - - - _117

CHARITY,

suit on behalf of ------7

indulgence of Court upon - 39

see Information. Petition.

CHOSE IN ACTION, see Parties.

INDEX.

COMBINATION, page.

charge of, answer to- - - - - 41
as to denial of, by answer, upon a demurrer for mul-
tifariousness - - - - 181 & note

after usual order for time

209 Sc note, 210

COMMISSIONERS, LORDS - - - 7 & note

COMMITTEES

of idiots or lunatics ----- 29
defend suits brought against them - - 30. 103
see Parties.

COMMON LAW. see Courts.
CONTRACTS, see Agreements.
CONVEYANCE, see Plea.

COPYHOLD,

as to restraining waste by tenant of - - 139

as to restraining infringement of - 138. 147

there must be a separate bill against each invader

182, note

CORPORATIONS,

suits by ------ 24 & note

defence of suits by - - - - - 1 03

aggregate, see Defendant.

COSTS,

where awarded against next friend of infant - 26, 27

note

where infant on attaining age becomes liable to, 26 &

note

where awarded against next friend of married woman

28, note

against relator - 23. 29 note. 100

z 3

INDEX.

COSTS — continued. page.

where bill of revivor for, allowed - 202

on bill of discovery - 201 & note
see Impertinence. Scandal.

COUNCIL, see Discovery.

CONFIDENCE, see Plea to Discovery.

COUNSEL, as to signature of, see Answer. Bill. Demurrer.
Exceptions. Plea.
bill by, to recover fees, demurrer to allowed - 157
as to discovery sought from, see Plea to Discovery.
as to costs by, see Impertinence. Scandal.

COURTS OF COMMON LAW,

limited character of jurisdiction ... 3
of Equity supply defect in administration of justice

by the courts of common law

of inferior jurisdiction -

- 151

CREDITORS,

suit by or on behalf of -

- 166. 171

revivor in a suit on behalf of creditors

- 79 & note

decree in such a suit - " .-

- 166

cross-bill by creditor -

83, note

of a deceased person, have no privity with the debtors
to his estate ______ i^g

see Plea.

CRIMINAL PROSECUTIONS

not relieved against - - - - - 1 33

CROSS BILL,

frame of ------- 81

considered as a defence, admitting jurisdiction 81, 82
where now dispensed with, although formerly neces-
sary 81, note

in chancery to original bill in the exchequer 80, note
see Bill. Creditors. Demurrer. Plea.

INDEX;

CROWN, PAGE.

suits on behalf of - - - - - 7.211

where the attorney-general to be made a defendant
on behalf of - 30.102.172

remedy on behalf of, in cases of nuisance and tres-
pass ------ 145. 147

see Suits.

CUSTOM OR RIGHT,

bill to establish 1 45> etseq.

see Answer.

DEATH

of party, where abatement caused by - *fl>etstq.

DE BENE ESSE,

bill for examination of witnesses - 52 & note. 150
proceedings upon such a bill, 49 & notes. 50 note. 60
affidavit in support of - - - - - i5°
see Demurrer.

DEBTOR, see Creditor. Interpleader.

DECREE

as to review, reversal and alteration of

83, et seq. & notes
as to correction of formal error in - - 90, note
obtained by fraud ------ 92

bill to set aside, see Bill.

- frame of bill for that

purpose ----- 94
when altered on rehearing, and when on bill of re-
view 237.239

instance in which extended upon original bill

97, note

z 4

INDEX.

DECREE — continued. page.

against person having a prior estate of inheritance ; as

to its binding those in remainder - 173, 174

bill of revivor subsequently to 69, 70

see Assignee. Bill. Creditor. Demurrer. Infant.

Plea. Statute of Limitatio7is. Supplement.

DEEDS

rectified, or effect of controlled - - - 129
see Cancellation. Delivery. Deeds. Discovery.
Execution. Plea.
DEFECT IN SUIT,

by what circumstances occasioned, 56, etseq. 67 note. 68
how supplied ------ 60. 68

DEFENCE TO A BILL - - - - 10. 102
with regard to the jurisdiction of the court, and

the rights and interests of the parties - 11. 102
on what it may be founded with reference to the

bill 13

forms of ------ ib.

may be different to different parts of the bill, 13. 107
none required to a bill of certiorari - - 16

DEFENDANT,

how change of interest in relation to, affects a suit,

57, et seq.
effect of his death or bankruptcy on suit, 57, etseq. 68

& note,
peculiarity in prayer, where a peer or peeress, or lord
of parliament, or the attorney-general, is - 38

in what manner a commoner, a peer, or lord of parlia-
ment, or a corporation aggregate, to answer, 10
how and to what extent, required to answer - 44, 45
see Committees. Corporations. Idiots. Infants.
Interrogatories. Jurisdiction. King. Lunatics.
Married Women. Queen.

INDEX.

DELIVERY, page,

of deeds and writings - - - - 128

bill seeking such relief only need not be accompanied
by affidavit - - - - - -124

DEMURRER ----- 13. 102. 106

causes and purposes of - - - 108

effect of - - - - - - - 14. 107

is upon matter apparent on bill - - 208

truth of matters properly charged by bill admitted

thereby - 211 & note, 212

form of ------- 210.212

must express the several causes of - - 213

must define to what it extends - 214 & note

in relation to substance or frame of bill - 206

on ground of defective allegations in bill - 125. 163
must be signed by counsel - 208

where put in without oath - ib.

is overruled by answer or by plea - - 209. 211
course of practice upon - _ - - 14.215
what is decided upon - - - 108 note. 154
effect of allowing ----- 14

overrulins; ----- 16

may in some instances be allowed in part - 214

effect of allowing, on matter of form, and on the

merits, with regard to a new bill - - 216

not generally permitted after demurrer overruled,

214 note. 217 & note

upon overruling, leave in some instances given, to put

in another less extended - - - 214. note

ore tenus - - - - - - 217

division of the subject of demurrers - - 109

for want of equity ----- 123. 163

to the jurisdiction - - 111, et seq. 123. 125. 222
on ground that another court has the proper jurisdic-
tion ----- 125. 151, et seq.

INDEX.

DEMURRER— continued. PAGE.

by one under personal disability, as an infant, a

married woman, an idiot, or a lunatic - 153

for want of proper title in plaintiff - 155 & note. 233

on ground that plaintiff's title is in litigation 157

for want of privity between plaintiff and defendant,

see Creditor, and see - - - 159, 160. note

for want of interest in the defendant - 235

case 0f arbitrator 1 60

— — assignee without

title ----.__ !QU ^3

bankrupt, 161,162

. jjejr not ajigggd to

be bound ---___ 163

witness 188

for want of parties, see Parties - - 180

for multifariousness, see Combination, and see, 181

& note

to bill for part of a matter only to avoid multiplicity

of suits ---___ 180

to a bill of interpleader - 141,142

to perpetuate testimony - - 148. 156

to examine witnesses de bene esse - 1 50

to discovery, causes of - - - - 185

for want of jurisdiction - ib.

interest in plaintiff, 185. 187

defendant, 185.

188

_ . privity between plaintiff and

defendant - - - - - - 185. 189

materiality in the discovery,

185. 191, 192, 193
on ground that discovery might sub-
ject defendant to penalties, as in respect of usury,
maintenance, champerty, simony, 193, 194, 195

INDEX.

DEMURRER— continued. pack,
to discovery, on ground that it might subject de-
fendant to forfeiture of interest,

as upon assignment of lease, without
lease, &c. - 193. 197

to something in nature

of forfeiture, as in regard to profession of popery :
exception in regard to acts of trading by one de-
clared bankrupt - - - - - 198

— ----------- ---to punishment, as

upon a criminal prosecution - - - 194

__ to consequences of a

supposed crime, as in respect of forged deeds, 196

— __ --to imputation of moral

turpitude ------ ib.

to discovery, effect of waver by plaintiff of penalty or
forfeiture, and of agreement to make discovery, in
preventing demurrer - 195. 197

on ground that defendant has in conscience

a right equal to that claimed by plaintiff, as in case
of a purchaser for a valuable consideration with-
out notice, or jointress - 199

— for want of parties, for want of equity, or

because a bill brought for discovery of part of a

matter will not hold, although it seems a demurrer

for multifariousness would lie 200

to bill of supplement - 202

— on ground that the bill might

have been amended, or that the new matter is im-
material - 202, & note. 207
to bill of revivor ----- 201.289
to bill of revivor and supplement - - 206
to cross-bill ------ 203

for want of equity, or to the jurisdiction,

will not lie - ib.

INDEX.

DEMURRER— continued. page.

to a bill of review - - 203, 204, & note. 291

— against opening the enrolment ac-
companying plea of decree - 203

„ on ground of lapse of time 204

to a bill in nature of bill of review - - 205

to a supplemental bill in nature of a bill of review, ib.
to bill to carry a decree into execution - 206

to amended bill, on ground that the new matter has
arisen subsequently to the filing of the original
bill -'-----_ 207

to relief, where it extends to discovery, 1 83, 1 84, & note
to discovery, and not to relief, consequence thereof,

183 note, 184
to relief, giving the discovery - - 185, note

may fail as to relief, yet protect from the discovery

184, 185
amendment of - - - - - 324, note
see Answer. Bill, Counsel. Distinction. Plea.
Time.

DEVISEE, see Parties.

DISCLAIMER - - 14. 102. 10G.

283. 306.318

form of -

319

effect of

16.319

no replication should be filed to

- 319

as to decree upon -

- ib.

where inconsistent with answer

- 3*9, 320

see Answer.

DISCOVERY -----

8,9.12. 148

bill for. see Bill.

objects of

- 53

form of -

53, 54

- - - - no proceedings upon, after

a sufficient

answer -

- 16

INDEX.

DISCOVERY— continued. page.

of deeds and writings, bill for - - - - 54

- affidavit in support of

unnecessary - - - - - 54. 124

right to, and grounds of - - 9. 306, 307

when and when not enforced, see Demurrer, and

185, et seq.
of matter of scandal not enforced - 307

in aid of the jurisdiction of this and of other courts,

185, &note.

_ ___- of the King in council, 225

of defendant's title, not enforced - 189, 190, 191
whether of alienage enforced - - 196,197.287
defence in respect of, although not of relief, 107. 110.
as to necessity of disclosing that an agreement or a
trust was by parol, with reference to the Statute of
Frauds ------ 267, 268

as to necessity of disclosing the time when the plain-
tiffs right existed, with reference to the Statute of
Limitations - - - - - 269, et seq.

see Answer. Bankrupt. Costs. Demurrer. Plea.
Witness.

DISMISSION

of bill, decree or order of, pleaded - - - 238

DISTINCTION

between demurrer and plea - 297 8c note.

as to consequences, between an original bill, in the

nature of a bill of revivor, and an original bill in

' the nature of a supplemental bill - - - 72

DISTRESS

defeated by accident - - - - - 1 1 7

DOWER - - 120, et seq.

DOWRESS

plaintiff, favour shown to 275, note.

INDEX.

ECCLESIASTICAL COURT - 250, note. 254, note'.
ELECTION,

application that plaintiff may elect to proceed either

at law or in equity ----- 250

course of practice upon election being made, 250, and

note

ENGLISH BILL 8

EQUITY

distinguished from positive law 3

want of. see Demurrer.

see Courts. Demurrer. Plea. Remedies.

EXAMINATION OF WITNESSES - - - 323

abroad, bill for - - - - - - 149

EJECTMENT,

instances of relief afforded upon - - 136. 144
EXCEPTIONS

to answer ______ 308. 315

form and practice upon - - 315, 316

accompanying demurrer, or plea, where they

constitute admission of validity of the latter, and
where not _ _ - - - -317

must be signed by counsel - - 315

of infant or attorney-general not allowed

315 & note

reference of to a master - - -316

to master's report ______ 316

upon a plea referred - - 305

see Master.

EXCHEQUER AND EXCHEQUER CHAMBER,

Courts of -_--__ 6, note
EXCOMMUNICATION, see Persons, Plea.

INDEX.

EXECUTION page.
of another deed upon discovery of contents of one
cancelled, bill for - - - - - 124
— — affidavit not required to be an-
nexed thereto ------ ib.

F.
FEME COVERTE, see Married woman, Persons.

FEOFFMENT

without livery of seisin - - - - - 116

FINE, see Plea.

effect of in various instances of legal and of equit-
able title ------- 251

FOREIGN COURT - 248 note, 255

FORFEITURE, see Demurrer to discovery, Discovery,
Plea to discovery, Waste.

FORGERY, see Demurrer to discovery.

FRAUD, see Bill to impeach decree. Decree - 127, et seq.
negatived by averments in plea and answer, see Plea.

FRAUDS, Statute of, see Statute.

GUARDIAN

ad litem for an infant - - - - 103

_ — idiot or lunatic - - - 104

- a person imbecile in mind - - ib.

HEARING,

relief not generally given at, if demurrer would have

held --- 108

leave given at to file a cross-bill, 82, 83. 331

- - a bill of review - 332

INDEX.

HEARING— continued. page.

leave given at to file a bill in nature of bill of review,

332
____a bill of supplement,

326. 331
see Amendment. Infant. Interrogatories.

HEIR, see Answer. Demurrer. Parties. Plea.
HUSBAND, see Parties.

IDIOTS AND LUNATICS,

suit on behalf of- - - - - - 7

by whom instituted 29

defence on behalf of, to suit - - - - 103

see Answer. Committees. Demurrer. Informa-
tion. Persons. Plea.

IMBECILITY, see Plaintiff.

IMMATERIALITY, see Demurrer.

IMPERTINENCE

in bill - 48

in answer ------ 313.318.

costs, in strictness to be paid by the counsel, 48. 318

INCUMBRANCER, see Answer.

INFANT

suit on behalf of - - - - - -25

by whom exhibited - - ib.

where stayed - - 27, 28

defence on behalf of, to a suit - - - 103
his consent to institution of suit on his behalf un-
necessary --_ ---28
indulgence granted to in suits on behalf of, 27.

39 note. 55 note

I N D E X.

INFANT — continued. page.

indulgence granted to by allowing amendment at

hearing ------- 327

._ _ where decree improperly af-
fects ----- 93- 96 note

see Ansioer. Costs. Demurrer. Next friend.
Persoiis. Plea. Suits.

INFORMATION - - - 7. 21. 238c notes. 99

on behalf of idiots and lunatics 29

charities - - - - 100, note

frame of - - - - - - -100

and bill - - - - - 23 & note. 99

frame of- - - - - -100

INHERITANCE, see Decree. Parties.

INJUNCTION ----- 46. 134,6* *?y.
see the various subjects in this index upon which
interposition by, may be required.

INSOLVENCY, see Defendant. Plaintiff. Plea.

INSTRUMENTS lost, see Bonds, and - - 123,124

destroyed or suppressed - - - - 113,114

see Cancellation. Deeds. Delivery. Execution.

INTERPLEADER,

form of bill of 49. 142

bill of by agent - - - - - 143, note

debtor ------ ib.

tenant - - - 142 & note. 143, note

as to affidavit and payment of money into court, and
injunction in case of - 49, & notes. 50 note. 143
see Bill. Demurrer. Plea.

INTERROGATORIES

in bill must, in order that answer to them may be en-
forced, be founded on particular charges, 309, note

A A

INDEX.

INTERROGATORIES--™,^™^, page.

for examination of witnesses, leave given at hearing

tofile 329

defendant examined upon after his plea overruled, 302

J.
JEW. see Answer.

JURISDICTION OF CHANCERY,

ordinary and extraordinary x

general - - . . . - 6. 8. 151

in relation to particular and inferior jurisdictions,

6.9

general objects of - - _ . -4,5.111
where to be exercised - - _ _ -111
frame of prayer of bill where defendant out of,

40, note
when court will proceed in the absence of parties
whose rights may be affected by the suit,

32, & notes
see Cross Bill Demurrer. Judgments. Plea.

JOINTURE,

without power of distress - - - 115 116
JOINTRESS,

favour shown to -270,

see Demurrer to Discovery.
JUDGMENTS

of the Common Law and Ecclesiastical Courts en-
forced in Equity - . ' 1 . 126, 127
see Plea.

K.
KING,

suit on behalf of - - _ _ >_ 0,

- - may not be instituted against - -30, 31. 102

INDEX.

KING— continued. page.

where to be applied to by petition of right, 31. 102
see Crown. Suits.

KEEPER, LORD 7, & note

L.
LAW, MUNICIPAL,

objects of- - - - - - 2

LEGATEES,

suit by or on behalf of - 167.171

decree in 168

of deceased person, no privity with debtor to his
estate ------- 158

see Parties.

LETTER MISSIVE 38, & note

LITIGATION, see Repeated.

LIMITATIONS, see Statute.

LIS PENDENS, see Plea,

LORD OF PARLIAMENT, see Defendant.

LUNATICS,

by whom suit instituted on behalf of 29

defence on behalf of to a suit - - -103

see Answer. Demurrer. Idiots. Perso?is. Plea.

M.
MAHOMETAN, see Answer.
MAINTENANCE, see Demurrer to Discovert/.

MARRIAGE

of female plaintiff causes abatement of suit - 57
brokag-e securities rescinded - - - - 132

MARRIED WOMAN,

where she sues jointly with her husband -

separately by next friend 24. 28

A a 2

INDEX.

MARRIED WOMAN— continued, page.

her consent to the filing of a bill on her behalf,

separately from her husband, necessary - 28

defence by, to a suit - 104, 105

where she must, and where she need not, obtain an

order to answer separately - 104, 105, and notes

where she may be compelled to put in a separate

defence - - - - - - -105

see Demurrer. Next Friend. Plea.

MASTER,

as to his discretion in considering exceptions with

reference to materiality of the interrogatories,

316, note
see Exceptions. Plea.

MATERIALITY, see Demurrer. Master

MISTAKE 128,129

MODUS, see Answer.

MONEY, payment of into Court, see Interpleader.

MORAVIAN, see Answer.

MORTGAGE ------- 130

MULTIFARIOUSNESS, see Combination. Demurrer.
Demurrer to Discovery.

MULTIPLICITY OF SUITS prevented - 145.183
see Demurrer.

NE EXEAT REGNO - 46

NEXT FRIEND

of infant 25, 26 & notes

- - how far interested in event of suit - 27
of married woman 28

see Costs.

INDEX.
NEW TRIAL, page

bill for - - - - - - - J31

NON-CLAIM, see Plea of Fine.

NOTICE - - - 275, 276, & note, 277, & note,

278. 298. 302
see Agent. Demurrer. Plea.

NUISANCE - 144

see Crown.

OATH 9, i o

OFFICES, PUBLIC,

securities for obtaining, rescinded - - - 132
OPPRESSION ------- ib.

ORDER FOR TIME.

what amounts to compliance with - 208, note. 209
see Time,

OUTLAWRY, see Persons. Plea.

PAINS, see Demurrer to Discovery. Plea to Discovery.

PAPISTS 198.286

see Demurrer. Persons. Plea.

PARLIAMENT, LORD OF. see Defendant.

PARTIES,

general rule - - - - - - -163

_ all persons interested should generally be

39- 164

admits of qualifications - - 164

where defendant out of jurisdiction - - ib.

- - - persons in same interest complaining are nu-
merous, in which case a suit may sometimes be
instituted by one or more on behalf of all - 166,

& note, et seq.
a a 3

INDEX.

PARTIES — continued. page.

where persons in same interest defending are numerous,

in which case a suit may sometimes be brought

against some of them as representing all,

1 70, & note

persons claiming under others before the court need

not in general be made parties - - 1 75

where persons entitled to ultimate or specific charges

are and are not necessary parties - 1 75, 1 76

where persons claiming the benefit of specific charges

upon a trust-estate, or cestui que trusts, must be

175, 176 & note
where persons are entitled to aliquot parts of a trust-
fund 176, note

the first tenant in tail only a sufficient party with

regard to the whole inheritance - - 173

to suit by trustees - - - - - 174

----- creditors against assets - - 171. 176

legatees - 168, note. 171

where personal representative a necessary party

176, 177, 178
person having the legal title generally a necessary

party - - - - - - - 179

assignor of chose in action, necessary party with

assignee - - - - - 179 & note

where the devisee and the heir, or attorney-general,

are necessary parties - - 171, 172,173. 176
committee must be party to a bill against idiot or

lunatic ---,_•-_» 30
husband must generally be party to a bill against his

wife -----_-_ ih.
attorney or solicitor-general a necessary party in

respect to charity-funds - 30. 102. 169 note
where a person may be made a defendant, although

not interested, or not in privity - - 160, note

INDEX.

PARTIES — continued. pa or.,

dispensed with by waver of claim against - 179
proper, where dispensed with upon reason suggested

by bill 180

where a person becomes entitled during pendency of
suit - - - - - - - -174

demurrer for want of must show the proper parties

180
applies, it seems, to the whole bill 180, note

see Amendment. Crown, Demurrer. Plea.
PARTITION - 110,120.122,123

PARTNERSHIP, see Answer, Plea.
PATENT,

as to restraining infringement of - - 138.147
there must be a separate bill against each invader,

182, note

PEER OR PEERESS, see Defendant.

PENALTIES, see Demurrer to Discovery. Plea to Dis-
cover!/. Waste.

PERPETUATION OF TESTIMONY,

bill for, form of- - - - - -51

— - - must be accompanied with affidavit 52. 150
see Bill. Demurrer. Plea.

PERSONS

incapable of exhibiting a bill by themselves alone
are infants, married women, idiots and lunatics 24

_ _ — _ of acting for themselves, although not
bearing either of these characters ; by whom a suit
may be instituted on behalf of - - - 30

by whom a suit against such persons may be defended,

103, 104

outlawed, excommunicated, convicted of popish
recusancy, attainted, and aliens, not incapable of
exhibiting a bill 25, note

a a 4

INDEX.
PETITION PAGE.

of right may be referred to the chancellor - 31
in a summary way on abuses of trusts for charitable

purposes, authorized by stat. 52 Geo. 3, c. 101,

18. 101, note
relief upon, confined to cases of

the abuse of clear trusts - - 19. 101, note
- - - - in relation to charities by the 59 Geo. 3, c. 91,

ioi, note
see Rehearing.

PLAINTIFF,

how a change of interest in relation to, affects a suit,

57, et seq.
suing in his own right effect, of his death, bankruptcy*
&e. on the suit - - - - 57, et seq. 65
suing in aider droit effect of his death, bankruptcy, &c.
on the suit - - 64, 658c note, 66, 67 &, note
instance of imbecility of mind in - - 230 note
see Corporations. Idiots. Infants. King. Luna-
tics. Married Women. Queen.

PLEA ------ 14. 102. l06

when the proper mode of defence - - 218

where necessary rather than demurrer, see Distinction,

and 216

bill taken to be true so far as not contradicted by, 300
nature of ----- - 219. 294

object of- - - - - - -219

effect of- - - - - --14

form of --._.. 294# 300

must define precisely to what part of bill it extends

294- 3°°
must contain only one defence - 295

must reduce so much of cause as it covers to a point

ib.

INDEX.

PLEA — continued. pa g e,

may consist of variety of circumstances - - 296
must bring the matter which it covers to issue, 298
as to this mode of defence in case of setting up two
several bars to same matter - 296

double - 268, 269 note. 295, 296

leave in some instances given to plead double, 296, note
instances of plea not being a complete defence, 297, note
may be good in part, and bad in part - - 295
over-rules demurrer - 32°

where over-ruled by answer - - 240, note. 320
to amended bill may be disproved by answer to the
original bill ------ 299

after demurrer over-ruled - - - - 216

where to be signed by counsel - - 301, note
to be filed ------- 301

in what cases to be put in upon oath - - ib.
admitted to be true by filing replication - 302, 303
where referred at once to a master - - 305

proceedings on - 15* 294* 301

of setting down to be argued - - 301. 305

modes of disposing of, by the court - - 301
effect of allowing - - - - - 15- 3° *

- — of over-ruling - - - - - 16

issue may be taken upon, and evidence produced upon
facts pleaded - - - - 15- 3°2

consequence of defendant succeeding or failing in the

proof of facts pleaded - 302

effect of saving benefit of to the hearing - 303

ordering to stand for answer - 303, 304

_ _-- with liberty to

except ------- 304

ordered to stand for answer with liberty to except,
qualified so as to protect defendant from part of
discovery sought - 304. 313

INDEX.

PLEA — continued. page.

over-ruled cannot be set up by a person made party
by bill of revivor - 289, note

amendment of - 281 and note. 324, note

division of subject - 219,220

to jurisdiction - 219, 220. 223, et seq~

to person - - - 219, 220. 226. 230. 234
in bar - 219, 220. 222. 231. 234, 235, 236. 274. 280
requisite allegations in, where founded on jurisdiction
of an inferior court - - - - - 224
to information, that jurisdiction in visitor - 225
of outlawry of plaintiff - 226. 305

rules respecting, 226 8c notes,

227 & note
of excommunication of plaintiff - - 227.305

rules respecting, 227

8c note, 228 & note
of plaintiff being papist recusant convict - 228.232
__.. __ — rules respect-
ing - --____ 228. 233
of attainder and conviction of plaintiff - 228. 232

rules respecting

229 8c note
of alienage of plaintiff ----- 229

rules respecting, 229 8c note

of plaintiff being an infant, a married woman, an idiot

or a lunatic - _____ 229

negative, in denial of plaintiff's title, as that he is not

heir or administrator as alleged by him, 230 8c notes,

231 8c notes, 232, 233
of plaintiff's bankruptcy or insolvency, 232 8c note
of want of privity between plaintiff and defendant, 234
that defendant is not the person, 8cc. alleged, ib.
negative, that defendant not interested, 235 8c note
that defendant not liable to demands of plaintiff 235

INDEX.

PLEA— continued. page/

of matters recorded, or as of record - - 236

of decree - - - 236, et seq. 246. 305

when it may be in bar of a new suit, 237,

et seq.
_ - — - see Dismission.

of another suit depending - 237. 246 & note, et seq.
necessary averments in, 247

— ___.. — effect of plaintiffs setting

same down to be argued - 247

— ____-__- — _ reference to a master upon,

246 note. 247 & note.

,. _-__ not put in upon oath, 248

— - course of proceeding upon,

246 note. 248

may be good, although suits

not between same parties - 248

— ^ _ may not be good where

plaintiff sues in different rights - - 249

— in a creditor's suit ib.

--at common law, or in eccle-
siastical court, it seems, not good - 250 & note,
of a fine and non-claim - 251

— _ where the title is legal, and

where equitable, 251, 252

. - - necessary averments therein,

251 & note. 253

to a bill of review - 253

of a recovery ------ ib.

of a judgment ------ 255

_ upon a bill in respect of rights deter-
mined thereby ----- 254

-. to set it aside - 255

of will and probate ----- 257
of matters i n pais - 236,258

of a stated account - 258, 259. 263

INDE X.

PLEA — continued. page.

of stated account, form of - - 259, 260 & note
of an award - 258.260

of a release - 258.261

form of - 261, & note. 263

of a legal instrument controlling or affecting the rights
of the parties - - 258. 263, et seq.

- - will .... 263

- conveyance -----_ iD>

- articles of partnership - 264

- an agreement to refer to arbitration - - ib.
of a statute, creating a bar to the plaintiffs demand,

258. 265, et seq.

- - the statute of frauds - 258. 265

form of - - 265, et seq.

in case of alleged trust 265

in cases of agreements 266

-- the statute of limitations - 258.269

form of - - 269, et seq.

to claim of debt - 269

- ____ _.__ money received

to plaintiffs use - - - - - -270

things executory,

271
. . title _ iD>

--to a bill to redeem a mort-
gage - ib.

to a bill of revivor - 272

ofplenarty - - - - - - -ib.

of public, or general, or of a local or particular sta-
tute 274

of purchase, &c. for valuable consideration without
notice - - - - - _ 274, et seq.

proper averments in such a plea, 275, et seq. 277 note.

298

INDEX.

PLEA— continued. page.

to a bill to perpetuate testimony - 279

— _ _ for discovery of deeds - - ib.

for want of parties - 280, et seq.

_ _ _. _ _ _ particular cases in which this plea

may be avoided - - - - - 281

containing negative averments supported by answer,
as in instance of decree containing averments in
denial of equitable circumstances charged and
accompanied by answer in support thereof, 239

et seq. 277 note. 293

effect of such a plea so framed and so supported,

245
of judgment so framed and so supported - 256

of stated account so framed and so supported, 259,

260
of an award so framed and so supported - 260
of a release so framed and so supported - 262
of statute of frauds so framed and so supported,

268
_______ limitations so framed and so sup-
ported ___--_ 271
to discovery - - 2.S\,etseq.

_ _ where plaintiff states a false case 282

___ not interested - ib.

defendant not interested, 282, 283

_ - discovery sought improper, 282

284

_ _ that it might subject defendant to pains,

penalties or forfeitures - 284. 286

_ _ effect of waver - 287

_ _ that it would betray confidence reposed

in defendant, as counsel, attorney or arbitrator,

284. 288
- - that defendant a purchaser for a valu-
able consideration without notice - - ib.

INDEX.

PLEA — continued. page.

as to such a defence to the relief extending to the

discovery ------- 270

to a bill for writ of certiorari - 289 & note

of revivor - 289

of supplement that the new matter was ante-
cedent _--____ 290

- - cross-bill __-__. 292

- bill of review - - - - - 291
on ground of matter extrinsic to

the decree, as lapse of time - 204, 205 & note

- - supplemental bill in nature of a bill of review, 293
to a bill impeaching a decree - - 239. 293
to carry a decree into execution - 293

- - an amended bill, that the new matter was subse-

quent, 290
see Amendment. Answer. Averments. Demurrer.
Distinction. Interrogatories. Time.

PLEADING,

former practice as to course of - - 18. 321

PLEADINGS,

order in which treated of - - - - 20

PLENARTY. see Plea.

PRAYER

for particular and for general relief - 37, 38, 39. 45

- - special order or provisional writ, 46 & notes, 47

see Bill. Jurisdiction.

PREROGATIVE, see Suits.

PRESERVATION

of property pendente lite by this court - - 135

PRIVITY, see Agent. Creditors. Demurrer. Legatees.
Parties. Plea.

INDEX.

PROBATE

PAGE.

of will obtained by fraud

257 &, note

in a foreign court

- 258

see Plea.

PUBLIC POLICY - - -

- 132

PURCHASER, see Demurrer. Plea.

274, et seq.

QUAKER, see Answer.

QUEEN CONSORT - 23. 99. 102

a bill may not be exhibited against her 30

where to be applied to by petition - - 31

QUIA TIMET BILL 148

R.
RECORD,

where right appears by, not necessary to establish
same at law ------ 147

RECOVERY, see Plea.

REFERENCE TO MASTER, see Master. Plea. Suits.

observance of formality required by, neglected, 116

REHEARING,

petition of - - - - 90 & note, 91 & note
see Decree.

REJOINDER ------- 323

special, disused ------ ib.

leave given to withdraw and to rejoin de novo, 323 note

RELATOR,

as to nomination of, and as to liability when named,
22, 23 & notes, 29 & note, 99, 100
death of, how suit affected by - - - 100

see Costs.

INDEX.

PAGE.

RELIEF 8, 9. 12

defence in respect of though not of, discovery, 107.110
where legal and founded upon discovery of deeds
sought by bill, affidavit to be annexed thereto, 54. 1 24
see T)emurrer. Plea.

RELEASE. See Plea.

pleaded, must be upon good consideration - 261
as to execution of - - 263 & note

REMAINDER,

tenant in remainder may appeal from a decree against
one having a prior estate of inheritance - 1 73
see Decree.

REMEDIES

afforded in Equity with reference to such as are
attainable in Courts of Law - - 113, et seq.

REPEATED LITIGATION

restrained - - - - - - -144

REPLICATION, - - - - - - 321

special, now almost disused - - 18, 322 & note
liberty given to withdraw, and to amend bill, 322 note,

331 note
where allowed to be filed nunc pro tunc, 323. 329, 330
see Disclaimer. Plea.

REPRESENTATIVE, PERSONAL. See Parties. Plea
negative.

HEVIEW, BILL OF,

under what circumstances such a bill can and cannot
be sustained - - - - 83 & notes, 90

where such a bill may and may not be filed without
leave of the Court ----- 84

where such leave will and will not be granted,

85, et seq. & notes

INDEX.

REVIEW, BILL OF— continued. page.

rules in relation to, as to proceedings and as to

time ___88

rame of ------- ib.

affidavit necessary upon application for leave to
file -------- 84

see Bill. Decree. Plea. Supplemental Bill.

REVIEW, BILL IN NATURE OF BILL OF

where the proper course of proceeding is by - 92
may be filed without leave of the court - - ib.
frame of - - - - - _ - ib.
see Bill.

REVIVOR, BILL OF.

frame of------ -76

course of proceeding upon - 76, 77

practice in relation to - - - - 77

instances in which not necessary - - 58, et seq.

instances in which court has acted without - 77

where plaintiff has no title to revive - - 289

barred by Statute of Limitations - 290
see Answer. Bill. Demurrer. Plea.

REVIVOR, BTLL IN NATURE OF BILL OF

where the course of proceeding is by - - 97
frame of ---____ j{j#
see Bill. Costs. Decree.

RIGHT, see Custom. Record.

SCANDAL

in bill ----._.

in answer - -

nothing relevant considered as - - ib.

costs in strictness to be paid by counsel - 48. 318

B B

- 48

- 313

INDEX.

SCIRE FACIAS page.

subpoena in nature of - - - 69

SENTENCE, see Judgment.

SETTLEMENTS - - - - - - 279

SIMONY, see Demurrer to Discovery.

SOLICITOR-GENERAL - - 22, 8c note. 99. 102
see Parties.

SPECIFIC PERFORMANCE, see Agreement.

STATING PART, see Bill.

STATUTE, see Plea.

STATUTE OF FRAUDS,

as to effect of insisting on, by plea or by answer, 268, note,
see Agreement. Discovery. Trust.

STATUTE OF LIMITATIONS,

where it applies, and where the court is influenced

by analogy to it - 272, 273, &, note.

as to its application to a suit in equity, or to a

decree - - - - - - - 273

see Acknowledgment. Demurrer. Discovery.
Plea. Revivor.

SUBPCENA ------- 37

to rejoin - - - - - - - 323

SUITS

instituted on behalf of the Crown, of those who par-
take of its prerogative, and of those whose rights
are under its particular protection 7

_____--__------- — by whom severally

instituted - - - - - - -21

one on behalf of infant referred to a Master to ascer-
tain whether for infant's benefit - - 27 &, note.

two on behalf of infant, referred to inquire which most
for infant's benefit ----- ib.

INDEX.

SUITS— continued. page.

new, how they become necessary - - - 17
see Statute of Limitations.

SUPPLEMENT, BILL OF,

cases in which filed - - - 61. 63. 82 note
objects of ------- 62

frame of ------ -75

course of proceeding upon - - - - lb.

instance in which Court proceeded without 74, note
after decree -------64

see Bill. Plea.

SUPPLEMENT, BILL IN NATURE OF BILL OF,
where course of proceeding is by - - - 98
frame of -------99

see Bill.

SUPPLEMENTAL BILL, IN NATURE OF BILL OF
REVIEW,

where course of proceeding is by - - - 90
affidavit necessary upon application for leave to file, 9 1
frame of ------- ib.

see Bill. Demurrer. Plea.
SURRENDER of copyhold defective - - - 116

TENANT, see Copyhold. Interpleader.
TENANT IN TAIL, see Decree. Parties.

TERMS, OUTSTANDING,

where setting up of restrained - - - 134

TESTIMONY, see Bill. Perpetuation.

TIME,

lapse of, as to demurrer founded on, see Bill of Review

212

to plead, answer or demur, rules in relation to

208 & note

B B 2

INDEX.

TIME — continued. page.

lapse of, to answer, after plea or demurrer overruled

see Discovert/. Statute of Limitations.
TITHES 125

TITLE OF PLAINTIFF,

instances in which to be established at law before

equity will interfere ----- 54

as to this Court's consideration of the legal or equitable

199

see Answer. Demurrer. Plea. Record.

TRADING, ACTS OF. see Demurrer to Discovery.

TRESPASS - - - - - - - 137

see Crown.

TRIAL, see Bill. New.

TRUST,

as to necessity and effect of confessing in an answer
with reference to the setting up of the Statute of
Frauds _-_---- 267

TRUST-FUND, see Parties.

TRUSTEES, see Answer. Parties.

TRUSTS - - - - - - - - 133

USURY, see Demurrer to Discovert/,

V.
VERDICT, see Judgment.

WAVER

of forfeiture ------- 287

of penalty - - - - - - -195

INDEX.

WASTE, page.

legal - 114, 115, & note. 136, 137, 138, 139, 140
equitable ----- 115, note. 140

pendente lite ------ 136, 137

penalty and forfeiture in case of - - 138, 139

— - oua'ht to be waved in bill seek-

ing to restrain - - - - - -139

WILL,

obtained by fraud ------ 257

see Plea.

WILLS,

Courts of Equity will not decide upon their validity,

123, note

WITNESS

made defendant, discovery by, not compelled - 283
see Demurrer. Examination. Plea.

WRITINGS, see Deeds. Delivery.

FINIS.

Luke Hansard & Sons,
near LincolnVInn Fields.

NE W LA W WORKS, published bij J. Sc W. T. Clarke.

DIGEST OF REPORTS.

The following Works %oill be found to present one continued Series
of the Digests of Rej)0?'tsfrom the earliest to the latest Period.

Just Published, in 2 large vols, royal 8vo. 3 I. 6 s. boards.

Dedicated by Permission to the Right Hon. Lord Tenterden.

An ANALYTICAL DIGESTED INDEX to the COMMON LAW REPORTS,

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Tables of the Titles and Names of Cases, containing the substance of above One hundred

and fifty Volumes.

By Thomas Coventry, Esq. of Lincoln'sTnn, Barrister at Law, and Samuel
Hughes, Esq. of the Inner Temple.

List of Reports from which this Digest has

Aleyn, Clayton,

Anderson, Coke,

Andrews. Comberbach,

Bamardiston, Comyns,

Barnes, Croke,

Bendloe, Davies,

Benloe and Dalison, Dyer,

Blackstone, Sir Wm. Fitzgibbon,

Bridgman.J. Foley,

Bridginan, Orl. Fortescue,

Brownlow & Goldes- Foster,

borough, Freeman,

Bulstrode, Gilbert,

Banbury, God bolt,

Burrow, Goldsborough,

Burrow's Settlement Hardres,

Keble,

Keilwey,

Kelyng, J.

Kelynge, Sir

Kenyon.

Latch,

Leonard,

Levinz,

Ley,

Lilly,

Littleton,

Lutwyche,

March,

Modern,

Moore,

Noy,

Owen,

Palmer,

Parker,

Plowden,

Pollexfen,

Popham,

been compiled :

Practical Cases
K. B.

Raymond, Ld.
Wm. Raymond, T.
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Wilson,
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Cases, Hetley,

Carter, Hobart,

Carthew, Holt,

Cases temp. Hard- Hutton,
wicke, Jenkins,

Cases of Practice in Jones,

C P. Jones, Sir Wm.

*#* This Work icill be found an excellent substitute for the old Reports, as well as an
excellent guide to the formation of the modern Reports.

In 2 large vols, royal 8vo. ll. 10 s. boards.
A DIGESTED INDEX to the TERM REPORTS, and others, analytically
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New Reports,

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ANNUAL LAW DIGEST (1826.)
In royal 8vo. price 9 s. boards.
AN ANALYTICAL DIGEST of the REPORTS of CASES decided in the Courts
of King's Bench and Common Pleas, and Exchequer, in Chancery, at the Rolls, and
in the Vice-Chancellor's Court ; in Parliament, in the Consistory Court, Arches Court,
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in the year 182G; continued annually.

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£5r" This Work, on perusal, will be found of gi-eat value, as it embraces all the decisions of
the different Courts that arise in the course of the preceding year ; and, from the circumstance
of being published annually, affords a ready reference to all the points decided during that
period.

NEW LAW WORKS, published by J. & W. T. Clarke.

Just published, in 2 large vols. Svo. price il. 10 s. boards,
The LAW and PRACTICE of BANKRUPTCY, as altered
by the New Acts ; with a Collection of Forms and Precedents in
Bankruptcy, and practical Notes.

By Edward E. Deacon, Esq.
Of the Inner Temple, Barrister at Law.
In the construction of this Treatise, the Author has collected the laxv
appertaining to the duties of the Solicitor, and the important question
of Costs, into distinct chapters ; conceiving that the numerous decisions
which have accumulated on each of these subjects, since the first pub-
lication of works on Bankruptcy, would render such an arrangement
more convenient for reference, than leaving those subjects scattered
through different portions of the work. The same plan has been adopted
with respect to the functions of the Messenger ; who, though a less
important officer than the Solicitor, is one, nevertheless, whose duties
draw him into more immediate contact with the property and personal
liberty of the Bankrupt, and who incurs a heavy responsibility when
he oversteps or neglects those duties.

Great pains have been taken in the framing of a copious Index,
without which the very best laxv book, however instructive to the student,
becomes wholly useless in the hurry of reference to the practitioner ;
and the value of which can only be appreciated by him, who is re-
quired on the instant to put his finger on the very page for an autho-
rity, to support or to refute an objection suddenly raised in court.

With respect to the practical part of the work, the author cannot
omit this opportunity of acknowledging the kind assistance rendered
him by John Pensam, Esq. the Secretary of Bankrupts.

With regard to the forms and precedents in bankruptcy, the Author
has adopted the plan of Mr. Cook, by allotting to them a separate
volume ; an arrangement which he trusts will be more acceptable, than
crowding them as an appendix into the same volume with the text ;
for one branch of the profession has seldom occasion to refer to them,
whilst in the office of the solicitor they are the subjects of frequent re-
ference. The greatest care has been taken to render them correct, and
conformable to the provisions of the new statute; and in order to make
them more practically useful, they have been principally arranged as
for ming part of the business of the particular meeting to which they
more immediately belong. Explanatory notes have been also added
to assist the practitioner, as well as notes of reference to that portion
of the text in the first volume, which bears upon the subject connected
with the precedent. ,„„,„„,„

1 CONTENTS.

Of the Jurisdiction of the Lord Of the Dividend.

Chancellor. < /f the Bankrupt.

Of the Trading. Of the Certificate.

Of the Act of Bankruptcy. Of Partners.

Of the Petitioning Creditor. Of Relation to Act of Bankruptcy.

Of the Commission. Of Set-oft'.

Of the Meeting to open the Of Suits at Law and Equity by

Commission. and against the Assignees.

Of the Commissioners. Of the Evidence required to sup-
Of the Messenger. port the Commission in Actions

Of the Proof of Debts. by or against the Assignees.

Of the Assignees. Of superseding a Commission.

Of the Assignment by the Com- Of the Practice of the Court on

missioners : Petition in Bankruptcy,

l. Of the Freehold Property; Of Costs.

NEW LAW WORKS, published by J. & W. T. Clarke.

contents — continued.

The New Act.

General Orders in Bank-
ruptcy.
Practical Forms :

Of suing out the Commission.

Of the Private Meeting to
open the Commission.

First Public Meeting.

Second Public Meeting.

Third Public Meeting.

Of the Meeting to inquire re-
specting the Bankrupt's
Property.

Of the Meeting for the Sale
of the Bankrupt's Estates.

Of the Meeting to audit the
Accounts of the Assignees.

Practical Forms :

Of the Meeting to declare a

Dividend.
Of the Meeting to expunge a

Proof.
Of Meetings of Creditors.
Of the Certificate.
Of Summons, Arrest, and

Commitment.
Assignments and Conveyances

of the Bankrupt's Property.
Letters of Attorney, Releases,

and Advertisements.
Of superseding a Commission.
Petitions.

NEW CHANCERY PRACTICE.

In two very very large volumes Svo. price 2 /. boards.

The present PRACTICE and COSTS in the HIGH COURT
of CHANCERY, with Practical Directions and Remarks, for the
use of the Barrister and guidance of the Solicitor in the conducting
of a Cause from the commencement to its conclusion ; and in con-
ducting Proceedings in Lunacy and Matters under the jurisdiction
of the Court, or of the Lord Chancellor ; in which the Practice of
the Court, (and particularly before the Master,) is fully explained ;
containing a valuable collection of useful Precedents, with the addi-
tion of the Modern Cases. By S. Turner, Solicitor.

The Sixth Edition, considerably enlarged and improved, by
Robert Venables, Esq. one of the Clerks in Court in the Chan-
cery Office.

*n* The favourable reception which the former impressions of this
Work have met with from the Profession, has encouraged the Editor
to publish a Sixth, and, as he hopes, an improved edition. The
•whole has been recast and very carefidly revised ; many corrections,
and very considerable alterations have been made, both in matter and
arrangement, and some subjects have been introduced which had before
escaped attention ; additional heads of Practice, numerous precedents
of Proceedings, and a voluminous accession of such Cases as the
Editor has been able to collect since the publication of the last edition ;
upwards of four hundred adjudged Cases of Practice have been
scattered over fourteen hundred pages of letter-press ; and to render
the present volume more deserving of attention, a very accurate Index
is subjoined.

CHANCERY REPORTS.
In 6 vols, royal Svo.
REPORTS of CASES in the VICE-CHANCELLOR'S
COURT, 55 to 6o Geo. III.

By Henry Maddock, Esq.

In 2 vols, royal Svo. price 3I. 2s. boards.
REPORTS of CASES argued and determined in the VICE-
CHANCELLOR'S COURT, (to be continued.)

By N. Simons and J. Stuart, Esqrs. Barristers at Law.

^WE-UNIVERi

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UNIVERSITY OF CALIFORNIA LIBRARY

Los Angeles
This book is DUE on the last date stamped below.

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