(SnrnpU 21am ^rljnnl ICibtaty 
 
Cornell University Library 
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 A concise treatise on the principles of 
 
 3 1924 020 119 073 
 
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 tlie Cornell University Library. 
 
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CONCISE TREATISE 
 
 ON THE PEINCIPLES ^ 
 
 OP 
 
 EQUITY PLEADING 
 
 BY 
 
 FRANKLIN" FISKE HEARD 
 
 BOSTON 
 SOULE AND BUGBEE 
 
 1882 
 
6vf^f- 
 
 Copyright, 188S, 
 By Feanklin Fiske E[£aed. 
 
 University Press: 
 John Wilson and Son, Cambridge. 
 
PREFACE. 
 
 It is the purpose of the Author to present 
 in this book a concise exposition of the prin- 
 ciples and general rules of Equity Pleading, 
 as it obtains at the present day. It is an 
 Elementary Treatise, intended for the informa- 
 tion of students and of young and inexperienced 
 pleaders. 
 
 The Author acknowledges the assistance he 
 has derived from the works of the various Eng- 
 lish writers on Equity Pleading, especially to 
 Mr. Drewry's Treatise, a book which is written 
 in a terse, practical and vigorous style. On one 
 observation of this writer the reader may safely 
 depend ; namely, that he can no longer rely on 
 that which has been hitherto long and justly 
 regarded as the great authority on Chancery 
 Pleading, the Work of John Mitford, after- 
 wards Lord Redesdale, Lord Chancellor of Ire- 
 land. 
 
iv PREFACE. 
 
 " The subject is pregnant with great diffi- 
 culty," said Lord Eldon, " and has been so 
 treated by those who have considered it most; 
 and I now allude to Lord Redesdale's book, 
 which is a wonderful effort to collect what is 
 to be deduced from authorities speaking so 
 little what is clear, that the surprise is, not 
 from the difficulty of understanding all he has 
 said, but that so much can be understood." 
 This, however, was said in the year 1803;' and 
 while it is undoubted, that wherever the law 
 has not been since altered, this celebrated Trea- 
 tise may be, and constantly is, appealed to as 
 of the best authority, — as by a high judicial 
 functionary,^ notwithstanding the excellently 
 annotated edition published in the year 1847,^ 
 — it is nevertheless true, as stated by Mr. 
 Drewry, that "the recent ■* alterations in Chan- 
 cery Pleading have rendered a great part of 
 that masterly Treatise inapplicable to the wants 
 of the inexperienced pleader, who is apt to 
 become confused, rather than enlightened, in 
 his ideas of Pleading, by the perusal, in that 
 work, of so much that he must take care to 
 
 ^ Lloyd 1). Johnes, 9 Ves. 54. 
 
 ^ Lord Justice Turner in Londonderry v. Baker, 3 De G. F. & J. 
 710. 
 
 " By Mr. Josiah W. Smith. 
 ' He was writing, A. D. 1858. 
 
PREFACE. V 
 
 forget, as soon as he has read it." ^ Mr. Jus- 
 tice Story's copious " Commentaries on Equity 
 Pleadings " is a work founded^ on that of Lord 
 Redesdale, and is as open to the observation 
 of Mr. Drewry as the Treatise of Lord Kedes- 
 dale. 
 
 A collection of Precedents for practical use 
 has been added, adapted to the law of Equity 
 Pleading as it exists at the present day. 
 
 As the Author's purpose has been to state 
 principles well known to experienced practi- 
 tioners, he has cited authorities, only so far 
 as he deemed it necessary to illustrate and 
 support the text. 
 
 Boston, June, 1882. 
 
 1 Equity Pleading, Preface. 
 
 !! " I have transferred into my pages all the most valuable materials 
 of Lord Redesdale's Treatise," he says in his Preface. 
 
CONTENTS. 
 
 CHAPTER I. 
 
 Pass 
 
 Introduction 1 
 
 n. 
 
 The Parties 9 
 
 ni. 
 
 Bills 17 
 
 IV. 
 Dbmueeees 53 
 
 V. 
 
 Pleas 84 
 
 VI. 
 Answers 95 
 
 vn. 
 
 Amended Bills 106 
 
 vrn. 
 
 Eevivoe and Supplement, and Supplemental Bills 110 
 
viii CONTENTS. 
 
 IX. 
 
 Inteklocutory Applications 114 
 
 X. 
 
 The Peoceedings on going into Evidence .... 119 
 
 CONCLUSION . 122 
 
 I. Bills 127 
 
 1. BiU seeking an Injunction and Foreclosure . . 127 
 
 2. Bill seeking to settle tke Construction of a Will, 
 
 and for an Administration Decree . . . . 130 
 
 II. Writ op Subpcena 134 
 
 III. Appearance 135 
 
 IV. Interrogatories 135 
 
 V. Demurrers 137 
 
 1. For "Want of Equity 137 
 
 2. For Want of Parties 138 
 
 3. For Want of Equity ; the Statute of Frauds ; 
 
 and for Want of Parties 138 
 
 4. For Multifariousness . . 139 
 
 VI. Plea 139 
 
 1. That Defendant is not such Personal Repre- 
 sentative as alleged 139 
 
 VII. Answer 140 
 
 VIII. Defendant's Oath to Answer 143 
 
 IX. Affidavit op defendant making Answer Evi- 
 dence 143 
 
 X. Exceptions to Answer 144 
 
CONTENTS. ix 
 
 Page 
 
 XI. Notice op Motion for a Decree .... 145 
 
 XIT. Replication 146 
 
 XIII. Atfidavit proving Exhibit . .... 147 
 
 XIV. Decrees and Orders 148 
 
 1. Decrees in Foreclosure Suit . ... 148 
 
 2. Final Foreclosmo 149 
 
 3. Minutes of Decree in an Administration Suit 150 
 
 4. Order for Injunction 151 
 
 5. Order of Eevivor . . 152 
 
 XV. Issue 152 
 
 XVI. Certificate op a Master in Chancery . . 153 
 
 XVII. Notice op Motion for an Injunction . . 154 
 
 XVIII. Writ of Injunction 155 
 
 Trusts 156 
 
 Bill to establish a Trust on the Language of a Deed . 156 
 
 Bill to establish a Trust created by Parol 158 
 
 Specific Performance 160 
 
 Bill to enforce Specific Performance of a Contract . . 160 
 
 Bill for Specific Performance 163 
 
 Bill to enforce Performance of an Agreement by an In- 
 junction 167 
 
 Constructive Notice as affecting Specific Performance . 170 
 
 Fraud 1^2 
 
 Bill to set aside a Fraudulent Transaction ..... 172 
 
 Bill to set aside a Purchase obtained by Fraud ... 175 
 
 Bill to set aside a Deed obtained by Undue Influence . 179 
 
 Partnership 1^^ 
 
 BiU for an Account between Partners 182 
 
 Injunctions to restrain Waste 184 
 
 Bill for Injunction to restrain Waste . . 184 
 
X CONTENTS. 
 
 Faqe 
 
 Injunctions to restrain Nuisances 187 
 
 Bill to restrain Nuisance by Fouling Water .... 187 
 
 Bill to restrain Nuisance by Noise 189 
 
 Injunctions to restrain Interference with Light 
 
 AND Air 191 
 
 Bill to restrain Nuisance by Interference witb Ancient 
 
 Lights 191 
 
 Bill to restrain Interference witli Ancient Lights . . 193 
 
 Bill to restrain Nuisance by Building 195 
 
 Injunctions to protect Trade Marks 197 
 
 Bill to restrain Infringement of Trade Marks . . 197, 199 
 
 INDEX 205 
 
PRINCIPLES 
 
 EQUITY PLEADING. 
 
PRINCIPLES 
 
 EQUITY PLEADING. 
 
 CHAPTEE I. 
 INTBODUCTION. 
 
 Equity is that science whose object is " the amelio- 
 ration of the law in that wherein, by reason of its 
 universality, it is deficient." ^ Ec[uity, as administered 
 in courts of chancery, is no more than such a measure 
 of justice as would be afforded in courts of common 
 law, were it not from their imperfect manner of giving 
 redress.^ " NuUus recedat a curiS cancellarise sine re- 
 medio " ^ is an admonition of very ancient date. 
 
 In early times, every action at law had to be com- 
 menced by an original writ out of the chancery, sealed 
 with the Great Seal. This writ varied in form according 
 
 1 Mr. H. B. Wallace's Preface to the American edition of White 
 and Tudor's Leading Cases in Eq^uity. 
 
 2 "The chancery is ordained to supply the law, and not to subvert 
 the law," said Lord Bacon in his speech on taking Ms seat in Chancery, 
 A. D. 1617. Works, vol. xiii. p. 184, ed. Spedding. 
 
 ' Chancellor Morton, Year Book, 4 Hen. VII. fol. 5. Lord Hath- 
 erly L. C. in Betts v. Thompson, L. E. 6 Ch. 737, 741. 
 
 1 
 
2 PEINCIPLES OF EQUITY PLEADING. 
 
 to the circumstances of the case, and the power of fram- 
 ing new forms, " in consimili casu," as occasion might 
 require, was, in the thirteenth year of Edward I. given 
 to the clerks in chancery, by the Statute of Westmin- 
 ster the Second, A. D. 1285.^ But cases frequently 
 occurred in which no original writ could be framed so 
 as to provide an action leading to a judgment which 
 would do complete right; although the defendant's 
 conduct was " contrary to equity and good conscience," 
 yet the complainant was " wholly without remedy at 
 the common law." 
 
 It seems that the evil of this deficiency was first felt 
 to be pressing in the case of feoffments to uses,^ where 
 it is well known that before the passing of the Statute 
 of Uses in 1536 the feoffee was absolute owner of the 
 land at law, although he could not in conscience refuse 
 to carry out the intention of the feoffor. The cestui 
 que use, finding that he could get no assistance against 
 his feoffee from any of the original writs which the 
 clerks in chancery furnished to him, frequently peti- 
 tioned the Chancellor himself to give redress. This the 
 Chancellors began to do about the time of Eichard II. 
 by summoning the feoffees before them, and, after due 
 investigation of the case, by ordering the doing of what 
 appeared to be right. Moreover, the Chancellors of 
 those times were generally civilians, to whom it seemed 
 that the readiest mode of ascertaining the facts of the 
 
 1 Palgrave, Authority of the King's Council, 17. Bigelow, Placita 
 Anglo-Normannica, xxx. 
 
 2 A " use " is simply an o^vnership in trust, says Lord Bacon, — 
 "Usus est dominium fiduciarium." 
 
INTRODUCTION. 3 
 
 case was to ask the accused person what he knew.' 
 Thus we see how, by the agency of a writ called a 
 subpoena, calling on the defendant to appear and an- 
 swer,' the complainant was enabled to get the relief 
 and discovery which, as has been said, constitute the 
 two branches of the assistance rendered by courts of 
 equity. 
 
 It is no part of the plan of this book to discuss what 
 the equitable rights of persons in particular cases are : 
 this is fully done in the treatises on Equity Jurispru- 
 dence. But it may here be observed that the assistance 
 given by the courts of equity consists partly in enforc- 
 ing the payment of money, partly in enforcing the exe- 
 cution of deeds and performance of contracts, and partly 
 in restraining various acts, the committal of which is 
 judged to be inequitable; while in every case the 
 defendant may be forced to answer on oath questions 
 proposed to him by the plaintiff with reference to the 
 subject of the suit. The right to have such answers 
 given is termed the right to discovery, as distinguished 
 from the right to relief, properly so called, to which it 
 is usually subservient. 
 
 From the Works just alluded to it may be learned 
 what relief and what discovery are obtainable under 
 given circumstances; but no relief nor discovery will 
 ever be obtainable unless they are asked for in proper 
 form. A great body of rules exist as to the form in 
 
 1 Of this curious fact the " Calendar of the Proceedings in Chancery, 
 in the reign of Queen Elizabeth," published in 1827, affords evidence 
 that "for many years the usage of the court appears to have been for 
 the defendant to be brought before the Chancellor and examined viva 
 
4 PRINCIPLES OF EQUITY PLEADING. 
 
 whicli matters are to be brought before the court, which 
 rules are partly written in statutes and the general rules 
 and orders of the court, and partly iu the unwritten 
 knowledge of the judges. 
 
 These rules are divided into two great branches : the 
 rules of Pleading declare which is the most efficient 
 form to adopt in shaping the written statements of 
 the cases of the parties before the court ; the rules of 
 Practice declare in what manner these written state- 
 ments should be brought to the notice of the court, 
 and what steps should be taken to obtain the benefit of 
 them.i 
 
 The principles which regulate the pleadings are some- 
 times intimately connected with the practice of the 
 court, as to the time, the manner, and the circumstances 
 which affect their introduction and use. Thus, for 
 example, it is the proper office of pleading to ascertain 
 what facts should be charged in the plaintiff's state- 
 ment of his case ; but, if the facts are imperfectly stated, 
 the time and manner and circumstances in which the 
 plaintiff will be permitted to make a more perfect state- 
 ment of his case, by way of amendment, properly 
 belong to the practice of the court.^ 
 
 Pleadings are essentially of the same nature, both at 
 law and in equity. Pleading is the statement, in log- 
 ical and legal form, of the fads constituting the plain- 
 tiff's cause of action, and the defendant's ground of 
 
 1 " There is no surer evidence of the law in any particular case than 
 the course and practice of the courts in which such law is adminis- 
 tered." Lord Tindal C. J. in The Queen v. Millis, 10 Clark & 
 Finnelly, 685. 
 
 2 Story Eq. PI. § 5. 
 
INTRODUCTION. 5 
 
 defence.^ " Pleading is the formal mode of alleging 
 that on the record, which would be the support, or the 
 defence of the party, in evidence." ^ Precisely such, in 
 principle, are the pleadings in equity, which consist of 
 the formal written allegations made by the plaintiff and 
 the defendant of their respective grounds of action and 
 defence. But " pleadings in equity will not from their 
 nature admit of the same precision as pleadings at 
 law." 3 But, in matter of substance, the same strictness 
 is required in equity as at law.* 
 
 The rules of equity pleading are more simple than 
 the rules of special pleading in an action at law. But 
 the forms and rules of pleading, both in actions at law 
 and in suits in equity, are to be strictly observed; 
 otherwise great laxity of pleading may follow, and the 
 object of the rules be defeated. And as the most learned 
 and careful pleader, in the hurry of business, may make 
 mistakes in mere matters of form, amendments are 
 allowed with great liberality, and without costs, unless 
 the opposing party is thereby prejudiced; but thus 
 any hardship, which a party might otherwise suffer by 
 mistakes in matters of form which have no bearing on 
 the merits of the case, may be avoided. 
 
 Although the rules of pleading in courts of equity, 
 especially in the case of bills, are not so strict as those 
 adopted in courts of law, yet, in framing pleadings in 
 equity, the pleader should adhere closely to the general 
 
 1 Pleadings should consist of averment, or allegations of fact, and 
 not of inference and argument. Hood v. Inman, 4 Johns. Ch. 437, 440. 
 
 2 BuUer J. in Bead v. Brookman, 3 T. R. 159. 
 
 ' Lord Bedesdale in Carew v. Johnston, 2 Sch. & Lef. 305, 306. 
 * Burditt V. Grew, 8 Pick. 108. 
 
6 PEINCIPLES OF EQUITY PLEADING. 
 
 rules laid down in the books which treat of common- 
 law pleadings, whenever such rules are applicable to the 
 case : for the stated forms of description and allegation 
 which are adopted in pleadings at law having all been 
 duly debated under every possible consideration, and 
 settled upon solemn deliberation, and having been es- 
 tablished by long usage, experience has shown them 
 to be preferable to all others for conveying distinct and 
 clear notions of the case to be submitted to the court ; 
 and there is no reason why they should not be con- 
 sidered as equally applicable to pleadings in courts of 
 equity, in cases where the object of the pleader is to 
 convey the same meaning as that af&xed to the same 
 terms in the courts of law.^ " There is nothing more 
 important," said Lord Westbury, " than to adhere with 
 accuracy to the use of words of established meaning ia 
 legal nomenclature." ^ 
 
 In ancient times, bills in equity were, in their struc- 
 ture, of great brevity and simplicity, and suitable to 
 the few exigencies of society ; but, with the progressive 
 increase and complication of the common business of 
 life, the system of equity pleadings became refined, 
 elaborate, and comphcated. "I remember," said the 
 late Lord Chancellor Campbell, A. D. 1859,^ " when 
 bills in equity told the same story over and over again, 
 and each time more obscurely than on the previous 
 
 1 1 Daniell Ch. Pract. 303, 5th London ed. 
 
 2 Dickenson v. Teasdale, 1 De 6. J. & S. 59. 
 
 8 Hansard, New Series, vol. 154, col. 1032, 1 July, 1859. In 1838 
 Lord Chancellor Cottenham obseired : " The whole machinery of plead- 
 ing in equity is somewhat cumhrous and not quite well reduced to 
 principle." Foley v. Hill, 3 Myl. & Cr. 482. 
 
INTEODUCTION. 7 
 
 occasion. When tlie answer came, tlie great object in 
 drawiag it up was, that, however long it might be, it 
 should form only one sentence ! ia order that, if a part 
 of it had to be read, it should be necessary to read the 
 whole ! But I am happy to be able to say, that both 
 the bnis and answers which I have lately read were 
 simple, reasonable, grammatical, and perspicuous." In- 
 deed, nothing else could have been expected, siace the 
 Legislature had commanded, and the courts, by gen- 
 eral rules and orders, declared, that every pleading 
 should contain, as concisely as might be, a statement 
 of the material facts on which the party pleading 
 relies. 
 
 Clearness of expression and accuracy of statement 
 are the essence of pleading. Brevity and conciseness 
 are the "very soul" of all pleadings.' 
 
 It is the object of every system of pleading to bring 
 the questions ia dispute to issues. The issues once 
 settled, the rules of evidence are: that the evidence 
 should be confined to the issues; that the substance 
 only of the issues need be proved ; and that the burden 
 of proof lies on the party asserting the affirmative, 
 unless it is supported by a presumption of law. 
 
 In England the purpose of the Judicature Acts, as 
 judicially observed, " was to establish one great tribunal 
 with consistent and homogeneous action in all its parts." 
 Further, the object of the Legislature was to effect as 
 far as possible "an assimilation of practice and pro- 
 
 1 Quain J. in Askew v. North Eastern Railway Co., Weekly Notes, 
 Dec. 11, 1875, p. 238. " I shall endeavor to enforce, by all suitable 
 means, precision and brevity in pleading," said Chancellor Kent. 
 Hood V. Inman, i Johns. Ch. 439. 
 
8 PRINCIPLES OF EQUITY PLEADING. 
 
 cedure " ia courts of law and equity, and to some extent 
 also of doctrine.^ The mode of pleading to be used in 
 the High Court of Justice appears to have been cast 
 with the object of establishing a system which should 
 retain, as far as possible, the brevity of common law 
 and the intelligibility of equity pleading, while aban- 
 doning the technicality of the one and the prolixity of 
 the other.2 
 
 ' Lord O'Hagan, 3 App. Cas. 958. 
 
 2 " The systems of pleading now in use, both at common law and in 
 equity," observed the Judicature Commissioners, " appear to us to be 
 open to serious objections. Common-law pleadings are apt to be mixed 
 averments of law and fact, varied and multiplied in form, and leading 
 to a great number of useless issues, while the facts which lie behind 
 them are seldom clearly discoverable. Equity pleadings, on the other 
 hand, commonly take the form of a prolix narrative of the facts relied 
 upon by the party, with copies or extracts of deeds, correspondence 
 and other documents, and other particulars of evidence set forth at 
 needless length. The best system would be one which combined the 
 comparative brevity of the simpler forma of common-law pleading with 
 the principle of stating intelligibly, and not technically, the substance 
 of the facts relied upon as constituting the plaintiff's or the defendant's 
 case, as distinguished from his evidence. It is upon this principle that 
 most modern improvements of pleading have been founded, both in 
 the United States and in our own Colonies and Indian possessions, and 
 in the practice recently settled for the Courts of Probate and Divorce.'' 
 First Eeport, A. D. 1869, p. 11. 
 
THE PAETIES. 
 
 CHAPTEE 11. 
 
 THE PARTIES. 
 
 Evert citizen, and every person whether a citizen or 
 not, is entitled to sue in equity in his own person, or 
 vicariously in respect of equitable injury • to an equita- 
 ble right accrued or accruing to the plaintiff withia the 
 jurisdiction of the court; that is, to lay ground for a 
 suit, there must be in the plaintiff an equitable right 
 within the jurisdiction, and an equitable injury done to 
 it ; and the person committing the injury must be either 
 within or subject to the jurisdiction, otherwise the court 
 of chancery wiU not interfere. 
 
 All persons who are qualified to sue at aU may sue 
 directly in their own names, if they are sui juris ; but, 
 if they are not, they must sue in the name of some 
 other person. This rule of pleading is founded on a 
 rule of practice, which gives to a defendant a right to 
 have on the record as plaintiff some person sui juris 
 who may be answerable for costs ; and upon the same 
 principle, if a plaintiff is out of the jurisdiction, he 
 must, in general, give security for costs before the suit 
 can proceed. 
 
 1 The injury must be equitable, as distinguished from injury purely 
 legal. For instance, a suit cannot be sustained for waste committed 
 by a stranger, for that is trespass, which is a purely legal injury ; but it 
 may for waste by a person having privity of estate, as that is equitable 
 injury. 
 
10 PRINCIPLES OF EQUITY PLEADING. 
 
 Married women sue (if in respect of their own sep- 
 arate rights) by some other person, who is called their 
 next friend, and who is answerable for the proper con- 
 duct of the suit and for costs. Infants sue by their 
 next friend. The suit, however, of a person not sui 
 juris is, both in substance and in form, by the party 
 actually aggrieved ; and accordingly the bill of a mar- 
 ried woman, or an infant, runs not, " Humbly complain- 
 ing, shows A. B. the next friend" of the married 
 woman or infant, but "A. B. the wife of C. D. by 
 E. F. her next friend," or, " A. B. an infant, by E. F. 
 his next friend." 
 
 A corporation, where no other provision is specially 
 made, may in its corporate name sue and be sued, 
 appear, prosecute, and defend to final judgment and 
 execution. The full corporate name should be accu- 
 rately stated. It is often expressly provided by a 
 general statute, or by the act of incorporation, that a 
 corporation may sue in the name of some officer, and 
 then the bill is filed by the officer in his own name, 
 designating himself as such ; and that when a corpora- 
 tion is a party to a suit, all answers, replications, or 
 other papers requiring a signature or oath may be 
 signed or sworn to in behalf of the corporation by some 
 officer or agent thereto specially authorized. 
 
 The Commonwealth sues not hy, but in the name of, 
 the Attorney General ; that is, the Attorney General is 
 the actual plaintiff on the record; but the Attorney 
 General only sues on the information of some other 
 person, who is termed the relator ; generally the person 
 or persons principally interested in the right, and ag- 
 
THE PAETIES. 11 
 
 grieved by the wrong done. This also is a rule of prac- 
 tice rather than of pleading, in order that there may be 
 a person on the record as plaintiff, who shall be answer- 
 able in costs, if the Commonwealth has been wrongly 
 informed.^ A bill by the Attorney General is not called 
 a bill, but an information. In all substantial respects 
 it does not differ from a bill. 
 
 It sometimes happens that the relator has an interest 
 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 
 Commonwealth, they form together an information and 
 bm, and are so termed.^ 
 
 Liberty to sue on behalf of one's self, and other persons 
 who are too numerous to be brought upon the record, is 
 dependent neither upon the discretion of the court nor 
 upon the disposition of such other persons to concur in 
 the suit. But if such other persons have an interest 
 which might be affected in case the suit were allowed 
 to proceed as on their behalf at the instance of the 
 plaintiff, or if full justice cannot be done to the de- 
 fendants without having all such persons personally 
 upon the record, the court will not allow the suit to 
 proceed.^ 
 
 It is the general rule that a bill will not be dismissed 
 
 1 Attorney General v. Barker, 4 Myl. & Cr. 262. Attorney General 
 V. Vivian, 1 Rusa. 226. Attorney General a. Butler, 123 Mass. 304. 
 Attorney General v. Parker, 126 Mass. 221, 222. 
 
 2 Mitf. PI. 23, 5th ed. Attorney General v. Parker, 126 Mass. 222. 
 ' Williams v. Salmond, 2 Kay & Johns. 463. But see Smith v. 
 
 Williamson, 116 Mass. 510. 
 
12 PEINCIPLES OF EQUITY PLEADING. 
 
 for want of proper parties ; but the rule is not univer- 
 sally true. It rests upon the supposition that the fault 
 may be remedied, and the necessary parties supplied. 
 When this is impossible, and whenever a decree cannot 
 be made without prejudice to one not a party, the bill 
 must be dismissed. Nothing is to be gained by retain- 
 ing it, when it is certain that the complainant can 
 never be entitled to a decree in his favor. ^ 
 
 In a bill in equity by the assignee of a chose in 
 action, the assignor is a necessary party, if there re- 
 maias any right or liability in the assignor which may 
 be affected by the decree.^ The rule is thus laid down 
 by Mr. Justice Story : " The true priaciple would seem 
 to be that in all cases where the assignment is absolute 
 and unconditional, and the extent and validity of the 
 assignment is not doubted or denied, and there is no 
 remaining liability in the assignor to be affected by the 
 decree, it is not necessary to make the latter a party. 
 But where the assignment is not absolute and \mcondi- 
 tional, or the extent or validity of the assignment is 
 disputed or denied, or there are remaining rights or 
 liabilities of the assignor which may be affected by the 
 decree, then he is not only a proper but a necessary 
 party." ^ 
 
 A court of equity will not entertain a bUl by the 
 assignee of a strictly legal right, merely upon the ground 
 
 1 Bank v. CarroUton Railroad, 11 Wall. 624. 
 
 2 Montague v. Lobdell, 11 Cush. 111. 
 
 ' Story Eq. PI. § 153. In Hobart v. Andrews, 21 Pick. 532, and in 
 Montague v. Lobdell, 11 Cush. 115, this passage is quoted and com- 
 mented on and the rule laid down in Daniell's Chancery Practice, 
 Vol. I. pp. 177, 178, 5th London ed., denied. 
 
THE PARTIES. 13 
 
 that he cannot bring an action at law in his own name, 
 nor unless it appears that the assignor prohibits and 
 prevents such an action from being brought in his 
 name, or that an action so brought would not afford 
 the assignee an adequate remedy.^ 
 
 In that which has hitherto been said concerning the 
 conduct of a suit in equity, it has been assumed that 
 the parties to it were persons of full age, residing within 
 the jurisdiction of the court, and not under any legal 
 disability. This, however, is frequently not the case, so 
 that particular proceedings often become necessary, 
 which will be here described. 
 
 The disabilities affecting the proceedings in suits 
 arise from want of discretion, owing to infancy; or 
 from the want of a free will in a married woman. 
 
 The want of discretion which the law attributes to 
 ivfants, and their inability to make themselves liable 
 for the costs of a suit, give rise to various peculiarities 
 where any party to a suit is under twenty-one years of 
 age. 
 
 An infant cannot institute a suit alone, but must do 
 so under the protection of an adult, who will be answer- 
 able for the conduct and for the costs of the suit. This 
 adult is in theory the nearest relation who has no inter- 
 est contrary to that of the infant ; but practically any 
 person, even a mere stranger, may be named as next 
 
 1 Walker v. Brooks, 125 Mass. 241. In this case the authorities are 
 reviewed and the doctrine enunciated by Vice Chancellor Shadwell in 
 Hammond v. Messenger, 9 Sim. 327, 332, A. D. 1838, followed as 
 " amply sustained by earlier authorities in England and in this coun- 
 try," and the position of Mr. Justice Story in Eq. Jur. § 1057 a, and 
 Eq. PI. § 153, denied. 
 
14 PRINCIPLES OF EQUITY PLEADING. 
 
 friend, and the suit may be carried on without the 
 knowledge of those who have the care of the infant. 
 In such a case, however, the court will, if desired, direct 
 an inquiry whether the suit is beneficial, and will stay 
 all proceedings in the mean time.^ 
 
 In order that the defendants may know where to 
 resort in case the plaintiff in an infant's suit be ordered 
 to pay costs to them, it is required that the name 
 and residence of the next friend should appear on 
 the bill, in the same manner as that of the plaintiff 
 does in an ordinary case. The address therefore runs 
 as follows : " Humbly complaining, shows A. B. (an 
 infant under the age of twenty-one years) by E. F. 
 of, etc. his father and next friend, the above-named 
 plaintiff, as follows." The name of the next friend is 
 always mentioned in the title of the cause, but does not 
 (as such) occur elsewhere in the pleadings or other 
 proceedings. 
 
 When a bill is filed against an infant, he is served 
 with it in the ordinary way; but substituted service 
 wUl often be allowed on the parent or other person 
 having the charge of the infant. No step can be taken 
 by or on behalf of the infant in the defence to the suit, 
 until some person has been appointed to be guardian ad 
 litem, i. e. for the purposes of the defence, it is the duty 
 ordinarily of the friends of the infant to procure the 
 appointment of such a guardian, which is done by an 
 order obtained on motion or petition of course, sup- 
 ported by an affidavit that the proposed guardian is a 
 fit person, and has no interest adverse to the infant in 
 1 Towsey v. Groves, 11 W. R. 252. 
 
THE PARTIES. 15 
 
 the subject of the suit, the production of the infant 
 being dispensed with. 
 
 Married women are in some respects looked upon as 
 under the same incapacities as infants with respect to 
 the conduct of suits in which they are interested ; for a 
 married woman is as incapable of binding herself for 
 the payment of costs as an infant, and any joint act 
 of hers and her husband's is considered as the act of the 
 latter only, on account of the influence which he is 
 supposed to have over his wife. From these principles 
 has arisen the general rule that the husband must be 
 joined with the wife as a party, whether as plaintiff 
 or defendant.^ 
 
 In those cases where the wife appears as plaintiff, and 
 has an interest conflicting with that of her husband, as 
 when she seeks to establish her exclusive right to her 
 separate property, or to her equity to a settlement, there 
 she must file her bill by her next friend, making her 
 husband a defendant.^ But where there is no adverse 
 interest, there is no reason why he should not be co- 
 plaintiff with his wife suing by her next friend. A 
 next friend cannot be appointed without her consent. 
 
 When the husband and wife are joined as defendants, 
 they usually appear by the same solicitor, and put in 
 but one answer ; if, however, the wife wish it, she may 
 obtain an order to answer separately, and set up a de- 
 fence distinct from that adopted by her husband, in 
 
 1 Bums V. Lynde, 6 Allen, 305. 
 
 2 Roberta v. Evans, 7 Ch. D. 830. In Massachusetts the making 
 the husband a party to the bill, merely because he is the plaintiff 's 
 husband, has been dispensed with by statute. Forbes v. Tuckerman, 
 115 Mass. 115. 
 
16 PRINCIPLES OF EQUITY PLEADING. 
 
 which case she will be liable to the ordinary process 
 of contempt if she neglects to answer ; if the husband, 
 having been made defendant to a suit respecting the 
 wife's separate property, be out of the jurisdiction of 
 the court, the plaintiEf may compel the wife to answer.^ 
 
 If a married woman present a petition to the court, 
 she must do so through the medium of a next friend, 
 even though the petition have reference to her separate 
 property ; and her husband must be either a co-petitioner 
 or a respondent. 
 
 The office, duties and liabilities of the next friend of 
 a married woman are the same as in the case of an 
 infant. 
 
 Th^ recent statutes provide that the real and personal 
 property of a woman upon her marriage shall remain 
 her separate property, and that a married woman may 
 hold and dispose of property, real and personal, and 
 may sue and be sued in the same manner as if she were 
 sole. In those jurisdictions where statutes of this class 
 are in force, an application by a married woman to the 
 court of chancery may be made without a next friend. 
 
 1 Dubois V. Hole, 2 Vem. 613. 
 
BILLS. 17 
 
 CHAPTEE III. 
 
 BILLS. 
 
 A CHANCERY Suit is ordinarily commenced by prefer- 
 ring a bni in tlie nature of a petition or complaint ; this 
 is the most usual and, in general, the most complete 
 course. 
 
 Bills are in strictness divisible into bills praying re- 
 lief, and biUs praying only discovery. The latter class 
 of bills was formerly in frequent use; almost exclu- 
 sively, however, in aid of proceedings at law, for the 
 purpose of obtaining information residing in the breast 
 of the party alone. But since the practice of courts of 
 common law has permitted the parties to an action to 
 be examined as witnesses, bills of discovery have fallen 
 wholly into desuetude, and the only bills known in 
 modem practice are bills for relief, accompanied or not 
 accompanied by discovery. 
 
 Bills of discover}' are either bills for discovery only, 
 or bills for discovery and relief, the difference between 
 the two consisting in this, that in the one the proceed- 
 ing in which the discovery is sought is in some other 
 court, while in the other of them the entire proceed- 
 ings are in equity. Though the right to discovery is 
 in both cases founded on the same principle, there is a 
 clear distinction between a bill of discovery merely and 
 a biU for discovery and relief. Discovery is sought in 
 
 2 
 
18 PEINCIPLES OF EQUITY PLEADING. 
 
 both cases ; in the latter case it seeks discovery with 
 reference to the case stated and the relief prayed by 
 the bill,- and then the plaintiff may within certain lim- 
 its call upon the defendant to state how and on what 
 ground he can oppose the relief, because in such a suit 
 the plaiatiff may disprove the whole of it. But where 
 the discovery is sought in aid of an action at law, then 
 all that can be asked for is the discovery of facts and 
 documents in the defendant's possession, the knowledge 
 of which will be of assistance to the plaintiff in prov- 
 ing his own title in the action. He may also be 
 required to answer as to any specified fact which is 
 alleged in the bill, and which relates to the action ; but 
 he cannot be required to state how he puts his case, or 
 to give a discovery as to all matters which the plaintiff 
 may think proper to state in the bill which do not 
 relate to the action.^ 
 
 A bill is addressed to the court, and consists of a 
 statement of the facts and documents on which the 
 plaintiff grounds his claim to equitable relief ; and of a 
 prayer for the particular relief to which he thinks him- 
 self entitled, followed by a prayer for such other relief 
 as the court may think fit to give, which is termed 
 "the prayer for general relief." 
 
 An original bill as formerly framed, according to the 
 analysis of Lord Eedesdale,^ consisted of nine parts ; 
 some of which, however, were not essential, and might 
 be used or not, at the discretion of the pleader. These 
 nuie parts were as follows : — 
 
 1 Kerr on Discovery, 11. 
 » Mitf. PI. 49, 5tli ed. 
 
BILLS. 19 
 
 I. The address to tlie person or persons holding the 
 Great Seal. 
 
 II. The names and addresses of the persons com- 
 plainant. 
 
 III. The statement of tRe plaintiff's case, commonly 
 called the stating part. 
 
 IV. The charge that the. defendant unlawfully con- 
 federated with others to. deprive the plaintiff of his 
 right. 
 
 V. The allegation that the defendants intend to set 
 up a particular sort of defetfce, the reply to which the 
 plaintiff anticipates by alleging certain facts which will 
 defeat such defence. This was usually termed the 
 charging part, from the circumstance that the plaintiff's 
 allegations were usually .introduced by way of charge, 
 instead of statement. •' 
 
 VI. The statement that the plaintiff has no remedy 
 without the assistance of a court of equity ; which was 
 termed the averment of jurisdiction. 
 
 VII. The interrogating part, in which the stating 
 and charging parts were converted into interrogatories, 
 for the purpose of eliciting from the defendant a cir- 
 cumstantial discovery, upon oath, of the truth or false- 
 hood of the matters stated and charged. 
 
 VIII. The prayer for relief, adapted to the circum- 
 stances of the case. 
 
 IX. The prayer that process might issue, requiring 
 the defendant to appear and answer the bill ; to which 
 sometimes was added a prayer for a provisional writ,- 
 such as an injunction or a ne exeat regno, for the pur- 
 pose of restraining some proceedings on the part of the 
 
20 PRINCIPLES OF EQUITY PLEADING. 
 
 defendant, or of preventing his going out of the juris- 
 diction till he had answered the bill. 
 
 But the bill is now made to assume two principal 
 divisions only ; namely, the statement or a narrative of 
 the plaintiff's case, upon which rests his equity and the 
 prayer for relief. "Formerly," said Lord Eldon in 
 1805,1 « a bill contained very little more than the stat- 
 ing part. I have seen such a bill, with a simple prayer 
 that the defendant may answer all the matters afore- 
 said, and then came the prayer for relief." 
 
 A bill, as ordinarily framed, now contains : 1. The 
 Address of the Bill. 2. Names and Addresses of the 
 Plaintiffs. 3. The Stating Part. 4. The Prayer for 
 EeUef. 
 
 1. The Address of the Bill. 
 
 The first part of the bill is the address to the court. 
 This contains the technical, statutory description of the 
 court. 
 
 2. Names and Addresses of the Plaintiffs. 
 
 It is not only necessary that the names of the sev- 
 eral plaintiffs in a bill should be correctly stated, but 
 the description and place of residence of each plaintiff 
 must be set out, in order that the court and the defend- 
 ants may know where and to whom to resort to compel 
 obedience to any order or process of the court, and par- 
 ticularly for the payment of any costs which may be 
 awarded against the plaintiffs, or to punish any im- 
 proper conduct in the course of the suit,^ as well as to 
 
 1 Partridge v. Hayeraft, 11 Ves. 5/4. ^ jiitf. pi. 49^ 5th ed. 
 
BILLS. 21 
 
 furnish distinct means of decision, in all future contro- 
 versies, in regard to the subject-matter and the identity 
 of parties. 1 
 
 In this part, also, are sometimes contained the names, 
 descriptions and. places of residence of the defendants, 
 although they are now usually found in the next suc- 
 ceeding part. 
 
 It seems that a demurrer will lie to a bill which does 
 not state the place of residence of the plaintiff; and 
 that if the bill describes the plaintiff as residing at a 
 wrong place,2 the fact may be taken advantage of by 
 a plea in the nature of a plea in abatement j^ but a 
 defendant cannot file such a plea, after a demurrer upon 
 the same ground has been overruled, without leave of 
 the court. 
 
 The jurisdiction of the courts of the United States 
 is founded upon the fact, with few exceptions, that the 
 plaintiffs and defendants are citizens of different States, 
 and is independent of the subject-matter of the bill. 
 Therefore, it is absolutely necessary to allege that fact 
 distinctly in the biU ; * as, by stating that the plaintiff 
 is "a citizen of the Commonwealth of Massachusetts," 
 and that the defendant is "a citizen of the State of 
 
 1 story Eq. PI. § 26. 
 
 2 In Simpson v. Burton, 1 Beav. 558, Lord Langdale M. E. said : 
 "There can be no doubt that it is the duty of a plaintiff to state his 
 place of residence truly and accurately at the time he files his bill ; 
 and if, for the purpose of avoiding all access to him, he wilfully mis- 
 represents his residence, he will be ordered to give security for costs. 
 I do not think the rule extends to a case where he has done so inno- 
 cently, and from mere error." 
 
 3 Smiths Smith, KayApp. xxii. Eowley «. Eocles, 1 Sim. &St. 511. 
 * Jackson v. Ashton, 8 Peters, 148. 
 
22 PRINCIPLES OF EQUITY PLEADING. 
 
 New York." By reason of the omission of such an 
 allegation, many cases, which have been carried by ap- 
 peal to the Supreme Court of the United States, have 
 been dismissed for want of jurisdiction, it being a uni- 
 versal principle that the jurisdiction of the court must 
 appear affirmatively on the record. 
 
 Where a bill is filed on behalf of an infant, it is 
 not necessary or usual to describe the plaintiff by his 
 place of residence ; because an infant is not responsible 
 either for costs or for the conduct of the suit; the 
 description and place of residence of the next friend 
 must, however, be set out. In the case of a married 
 woman suing by her next friend, it is usual, but not 
 essential, to set out the address of the married woman, 
 but the address of the next friend must be stated ; and 
 where a married woman sues as a feme sole, that fact 
 must be stated in this part of the biU.^ 
 
 Where a plaintiff sues as executor or administrator, 
 it is not necessary so to describe himself in this part of 
 the bill ; though it is necessary that it should appear 
 in the stating part that he has duly proved the will or 
 obtained administration, as the case may be. 
 
 Where a plaintiff sues on behalf of himself, and of 
 others of a similar class, it should be so stated in this 
 part of the bill; and the omission of such a statement 
 will, in many cases, render a bill liable to objection for 
 want of parties, and in other cases will deprive the 
 plaintiff of his right to the whole of the relief which 
 he seeks to obtain.^ 
 
 1 1 Daniell Ch. Pract. 301, 5th London ed. 
 
 2 1 Daniell Ch. Pract. 302, 5th London ed. 
 
BILLS. 23 
 
 A bill must show on the face of its allegations that 
 some relief could be granted, if the cause were being 
 heard on proof of those allegations ; for if, on the very- 
 statements of the bill, assuming them all to be true, no 
 relief at all could be granted, the biU may be met by 
 demurrer, — a form of pleading which, admitting every 
 allegation of fact in the bill to be true, submits to the 
 court that the plaintiff has no title to the relief asked, 
 or to any other relief. Thus, to put a clear case by 
 way of example : if a bill stated that the plaintiff and 
 the defendant had entered into an agreement for the 
 purchase, by the defendant, of the plaintiff's estate, and 
 prayed specific performance of the agreement, and then 
 alleged facts which showed that the plaintiff had no 
 title to the estate, the bill would be demurrable, be- 
 cause the court would not compel the defendant to take 
 a bad title. 
 
 As the causes of demurrer are numerous, and upon 
 them depends in a great jneasure the mode in which a 
 bill must be framed, it will be convenient to mention 
 here the principal essentials of a bill, although the sub- 
 ject will be further treated in speaking of demurrers. 
 
 To be entitled to sue for relief in equity, the plaintiff 
 must show : — 
 
 1. That he is the person entitled to relief, assuming 
 that the facts justify any relief. 
 
 2. That the facts entitle the plaintiff to the relief 
 prayed against some person. 
 
 3. That the defendant or defendants is or are the 
 person or persons against whom the plaintiff is entitled 
 to relief. 
 
24 PRINCIPLES OE EQUITY PLEADING. 
 
 4. (Though this matter in effect constitutes a branch 
 of the second proposition), That the court of chancery 
 is the tribunal that has jurisdiction to give the relief 
 asked; that is, either that it has sole jurisdiction, or 
 jurisdiction concurrent with that of some other court. 
 
 1. The plaintiff must show himself to be the person 
 entitled to relief, assuming that relief is grantable to 
 some person. 
 
 The plaintiff must allege distinctly his title to the 
 subject-matter, in respect of injury to which he asks 
 relief ; that is, if the relief is in respect of an equitable 
 injury done to him as owner of any property, he must 
 show 'that he is the owner, or so far the owner as to 
 have a locus standi for some relief; or if the relief 
 sought is for equitable injury in respect of any contract, 
 he must show that he is the person with whom the 
 defendants have contracted; or generally if he claims 
 relief in respect of any right, and injury to that right, 
 he must show on the face of his bill that he is the 
 person in whom the right injured is vested, either 
 wholly, or so far as to entitle him to claim the aid of 
 the court in respect of his interest. 
 
 For example: if a person files a bill as equitable 
 owner, or part equitable owner of an estate, against 
 any person holding a fiduciary character in respect of 
 that estate, for an account of his receipts, anti in respect 
 of his dealings with the estate, the plaintiff must allege 
 that he is the -sole cestui que trust, or one of the cestiiis 
 que trust, as the case may be. So, if a bill is filed for 
 specific performance of a contract made by the de- 
 
BILLS. 25 
 
 fendant with the plaintiff to buy the plaintiff's estate, 
 the plaintiff must allege his title to the estate, and also 
 that the defendant entered iato the contract with him ; 
 for both those circumstances are essential to the plain- 
 tiff's title to relief. If the plaintiff has no title to the 
 estate, it is clear that he cannot enforce a contract to 
 buy it; and if, on the other hand, having title to the 
 estate, there was no contract with the defendant, then 
 it is equally clear that he cannot compel the defendant 
 to buy it. But if a bill for specific performance were 
 filed by a purchaser against the vendor, then it would 
 be sufficient for the plaintiff to allege the contract with 
 him, because, if there was a contract, he has a locus 
 standi to sue. 
 
 So if a bUl is filed by a tenant in remainder against 
 a tenant for life, to restrain him from cutting timber, 
 the bill must allege the title of the plaintiff in remain- 
 der as such ; for if he is not tenant in remainder, he 
 can have no title to sue at all ; and the bill would also 
 allege that the defendant is tenant for life subject to 
 impeachment of waste, although that seems at first 
 sight part of the defendant's title; but it is in effect 
 an ingredient in the plaintiff's title, for if the de- 
 fendant is tenant without impeachment of waste, the 
 plaintiff, although tenant in remainder, would have no 
 ground for restraining the defendant from cutting tim- 
 ber, except timber planted for ornament. 
 
 Again, suppose a bill filed for the appointment of 
 new trustees under a will or settlement, the plaintiff 
 must show that he has some equitable interest under 
 that wiU or settlement, for if he has not, he has no 
 
26 PRINCIPLES OF EQUITY PLEADING. 
 
 title to meddle witli the appointment of new trus- 
 tees. 
 
 It will 'be perceived, from what has been stated, and 
 from the examples selected, that the question, what title 
 the plaintiff must show, resolves itself, in effect, into 
 this. What are the equitable rights that attach to his 
 person and status ? And the principle is, that he must 
 in all cases allege enough of his individuality and status 
 to show that he is entitled to the equitable right in- 
 jured, or to some part of it.^ 
 
 As to the form of pleading title in a bill, the general 
 rule is this: the plaintiff must allege the facts from 
 which the court, assuming them to be true, can collect 
 that he has title. He must allege facts, not mere infer- 
 ences of law. For instance, it would not be good and 
 sufficient pleading in a bill by a tenant in remainder 
 under a deed, against the tenant for life (say for re- 
 straining waste), to allege simply that the plaintiff is 
 tenant in remainder, for whether he is so or not is an 
 inference of law to be drawn from the limitations of 
 the instrument under which he claims. But he should 
 allege that A. made and executed a certain deed, where- 
 by he conveyed to the defendant for his life, and from 
 and after, etc. to the plaintiff and his heirs (or, to the 
 plaintiff for his life, etc. as the case may be), setting 
 out the material parts of the limitations. 
 
 So, in a suit by a cestui que trust against his trustees 
 in respect of any breach of trust, it is not sufficient to 
 allege that the plaintiff is entitled to an equitable interest 
 under the instrument vesting the legal estate in the 
 
 1 Drewry Eq. PI. 7-9. 
 
BILLS. 27 
 
 trustees ; but a properly drawn bill will set out or state 
 so much of the instrument creating the trust estates, as 
 shows that the plaintiff takes under it an equitable 
 interest.^ 
 
 In fine, the allegation of title should consist of alle- 
 gations of those facts or instruments, or portions of in- 
 struments, from which the title of the plaintiff appears ; 
 and it is usual, though it is not always necessary, to 
 follow up those allegations by a specific allegation of the 
 legal inference; that is, for instance, if the title were 
 as tenant for life or in fee under a deed, the bill, after 
 stating the limitations of the deed, would go on to say 
 that the plaintiff is, as such person so designated ia the 
 deed, well and sufficiently entitled to an estate for life 
 or in fee to him and his heirs (or whatever his actual 
 estate is) in the hereditaments. Or, if a bill were filed 
 by an executor, after alleging the will and the death 
 of the testator, and the proof of the will, it would go 
 on to allege that the plaintiff "thereby became and 
 now is the sole legal personal representative of the 
 testator." 
 
 A party who comes to the court for discovery must 
 allege such a title as will entitle him to what he asks. 
 It must appear on the pleadings that he has an interest 
 in the subject to which the required discovery relates, 
 and such an interest as entitles him to call upon the 
 defendant for the discovery, or for the production of 
 documents. 
 
 In order to entitle himself to discovery only, the 
 plaiatiff must show a title to sue the defendant in some 
 
 1 Drewry Eq. PI. 10. 
 
28 PRINCIPLES OF EQUITY PLEADING. 
 
 other court, or that he is actually involved in litigation 
 with the defendant, or is liable to be so, and must also 
 show that the discovery prayed is material to support 
 or defend the suit. If he does not show this, he shows 
 no title to the discovery. A bill for discovery only 
 should allege that the discovery is sought in aid of some 
 proceeding either pending or contemplated. If the 
 purpose for which the discovery is sought is not stated 
 in, or does not appear on the face of, the bill, the biU is 
 demurrable. If the proceeding in aid of which discovery 
 is sought has not been commenced, the bill should aver 
 that it is the intention of the plaintiff to commence 
 proceedings. It is common in bills of discovery only 
 to introduce the averment that the action cannot be 
 maintained without the discovery prayed. 
 
 2. The facts alleged must show the plaintiff's title 
 to some relief. 
 
 On this part of a bill, which is its substance, it is to 
 be observed that the question is always more properly 
 a question of law than of pleading; being, in reality, 
 whether the facts show an injury to the plaintiff's rights, 
 cognizable and relievable upon equitable doctrines ; so 
 that to pursue minutely the inquiry into what facts will 
 support a bill would involve, not a discussion of pleading 
 merely, but an inquiry into equity jurisdiction as a whole. 
 
 The pleader must therefore bear in mind that, as 
 matter of law, his facts must be such as to lay the foun- 
 dation of an equitable injury committed by the defend- 
 ant against an equitable right in the plaintiff;^ and, as 
 
 1 It -will not be inferred from the use of the term "equitable right " 
 that relief can only be had in respect of an equitable estate, as the 
 
BILLS. 29 
 
 matter of pleading, he must, in a bill, state those facts 
 shortly and precisely. 
 
 In the modern system of pleading, which has grown 
 up partly under the influence of the judges, and partly 
 imder the positive enactments of the Legislature, all 
 prolixity,' repetition, and verbose statements of facts 
 and unnecessary setting out of instruments are aban- 
 doned in the pleadings. The best general rule that can 
 be followed by the pleader is, that, having first satisfied 
 himself that his facts support an equity, he should draw 
 his bill as if he were making verbally a short, but very 
 accurate, statement of them to a very precise and par- 
 ticular person.^ 
 
 jurisdiction of equity extends, in many cases, to give equitable relief in 
 respect of a legal estate. The term "equitable right " is used in the sense 
 in which it is used in equitj', as designating such an estate and interest 
 as give a locus standi for equitable relief. 
 
 1 Lord Chancellor Truro once observed with regard to prolixity in 
 pleading : "I may observe that if the prolixity is so gross as to amount 
 to impertinence, the proper course for the appellants to have taken was 
 to have excepted ; and although I think it is the duty of counsel to 
 take reasonable care to avoid even unnecessary verboseness, yet so 
 difiBcult oftentimes is the attempt to be explicit and minute, and yet 
 concise, and so difficult, if not impracticable, would it often be for the 
 court to determine where this was accomplished, and where it was not, 
 that though I might have an impression that the pleadings were more 
 lengthy than they need have been, I should not feel that I was acting 
 justly towards the pleader or the suitor, if I were to visit the latter 
 with any part of the costs on that gi'ound. It ought to be a gross and 
 palpable case of prolixity to enable the other party to take the objection, 
 and then the objection ought to be taken by way of exception." Smith 
 V. Pincombe, 3 Mac. & G. 662, 663. 
 
 " And Lord Justice Brett, in a very recent case, thus explained 
 the meaning of the rules of pleadiilg under the Judicature Acts : 
 "There are some tests which show practically what the rules mean. 
 In pleading under the new rules such facts ought to be stated which, 
 if a person had had to state a special case formerly for the opinion 
 
30 PRINCIPLES OF EQUITY PLEADING. 
 
 The bill should contain a clear and explicit statement 
 of the plaintiff's case. The rules of pleading require 
 that every material averment that is necessary to entitle 
 the plaintiff to the relief prayed for must be contained 
 in the stating part of the bill ; this is a useful rule for 
 the preservation of form and order in the pleadings. 
 This part of the bill must contain the plaintiff's case, 
 and his title to rehef ; and every necessary fact must be 
 distinctly and expressly averred,^ and not in a loose and 
 indeterminate manner, to be explained by inference, or 
 by reference to other parts of the bilL Defects in the 
 stating part cannot be supplied, nor its meaning ex- 
 plained by the averments in the charging part. The 
 defendants are not bound to answer any averment not 
 contained in the stating part.^ This part should be full 
 
 of the court, lie would have stated in the special case as facts. If 
 a person had to state a special case as an arbitrator, there are certain 
 facts which he must find and state, but he does not state the evidence 
 upon which he was brought to find those facts ; and the difference, 
 although not so easy to express, is perfectly easy to understand. An 
 arbitrator had to state everj' fact which would support, when proved, 
 the contention of the person on whose behalf he was stating that fact. 
 He did not state the evidence by which he came to find those facts. 
 Now, such facts as would be stated in a special ease to support or meet 
 the claim are precisely the facts which are to be stated under the new 
 system. There is another test. If parties were held strictly to their 
 pleadings under the present system, they ought not to be allowed to 
 prove at the trial, as a fact on which they would have to rely in order 
 to support their case, any fact which is not stated in the pleadings. 
 Therefore, again, in their pleadings they ought to .state every fact upon 
 which they must rely to make out their right or claim. '' Philipps v. 
 Philipps, 4 Q. B. D. 133. 
 
 ' What is clearly implied in a pleading is as eifectual as if it were 
 expressed. Daniels v. Tearney, "102 U. S. 418. Haight i;. Holley, 3 
 "Wend. 258. 
 
 2 Wright V. Dame, 22 Pick. 55. Hobart v. Andrews, 21 Pick. 526. 
 Stevens o. Hayden, 129 Mass. 332. These cases well illustrate this 
 rule of pleading. 
 
BILLS. 31 
 
 and accurate ; for, if a plea is pleaded, the validity of the 
 plea will be decided with reference to the stating part, 
 and not with reference to the interrogatory part, if it 
 varies from it.-" The stating part cannot be enlarged by 
 the terms of the prayer for relief.^ 
 
 Although the same precision of statement is not 
 required in bills in equity as in pleadings at law, yet 
 it is necessary that such a degree of certainty should 
 be adopted as may serve to give the defendant full in- 
 formation of the case which he is called upon to answer; 
 and the rights of several parties, the injury complained 
 of, and every other necessary circumstance — as time, 
 place, manner or other incidents — ought to be plainly 
 yet succinctly alleged. 
 
 With respect to the allegation of time, it is to be 
 observed that, where it is material, it ought to be alleged 
 with such a degree of accuracy as may prevent any 
 possibility of doubt as to the period intended to be 
 defined. 
 
 Where the act complained of appears on the pleading 
 to disclose no equity, the pleading wHl be held bad on 
 demurrer. 
 
 It is not in general enough in a pleading to allege 
 that a right exists, but the facts must be set forth 
 which give rise to such right. 
 
 Where fraud is intended to be charged, it must be 
 distinctly charged. At common law, no rule is more 
 clearly settled than that fraud must be distinctly al- 
 leged, and as distinctly proved, and that it is not allow- 
 able to leave fraud to be inferred from the facts. The 
 
 1 Story Eq. PI. § 27. ■ ^ Bushnell v. Avery, 121 Mass. 148. 
 
32 PRINCIPLES OF EQUITY PLEADING. 
 
 same rule obtains in equity pleading. Where fraud is 
 intended to be charged, there should be a clear and dis- 
 tinct allegation of fraud upon the pleadings; and though 
 it is not necessary that the word " fraud " should be 
 used, the facts must be so stated as to show distinctly 
 that fraud is charged.^ 
 
 Where pleadings are so framed as to rest the claim 
 for relief solely on the ground of fraud, it is not open 
 to the plaintiff, if he fails in establishing the fraud, to 
 pick out from the allegations of the bill facts which 
 might, if not put forward as proofs of fraud, have yet 
 warranted the plaintiff in asking for relief. A defend- 
 ant, in answering a case founded on fraud, is not bound 
 to do more than answer the case in the mode in which 
 it is put forward. If, indeed, relief is asked alterna- 
 tively, either on th'e ground of fraud, or, failing that 
 ground, then on some other equity, a plaintiff may fail 
 on the first but succeed on the latter alternative. The 
 attention of the defendant has been distinctly directed 
 to it, and he has been called on to answer the case 
 according to both alternatives. ^ 
 
 The principle explained by Lord Cottenham is that 
 where a bill alleges matters of fraud, and all the subse- 
 quent considerations depend on these matters which 
 are not proved, the court must necessarily dismiss the 
 bill ; " but if fraud be imputed, and other matters al- 
 leged which will give the court jurisdiction as the 
 foundation of a decree, then the proper course is to dis- 
 
 1 Thesiger L. J. in Davy v. Garrett, 7 Ch. D. 489. Smith v. Kay, 
 7 H. of L. Cas. 763. 
 
 " Hickson v. Lombard, L. R. 1 H. L. 324. TraUe v. Baring, 4 De 
 G. J. & S. 318, 323. 
 
BILLS. 33 
 
 miss so much of the bill as is not proved, and to give 
 so much relief as, under the circumstances, the plaintiff 
 may be entitled to." ^ 
 
 A bill to set aside a deed containing charges of fraud 
 which were not proved, and in some cases were posi- 
 tively disproved, will be dismissed as to those charges, 
 but will not be finally dismissed, if there are other 
 charges which the court deems to constitute what 
 amounts to great irregularity and legal fraud, and to 
 require the granting of the relief prayed.^ 
 
 Every fact necessary to complete the chain of title 
 and injury must be stated ; and by chain of title and 
 injury is meant, not merely title to estate, in the sense 
 in which conveyancers use it, but title to equitable 
 relief, which comprises title in the conveyancer's sense, 
 and also equitable locus standi and equitable injury. 
 
 To take a famiUar example: if a bill were filed to 
 restrain infringement of a patent, or of copyright, it 
 would not be good pleading to state loosely as to the 
 injury, that the defendant had infringed the plaintiff's 
 patent or copyright ; for what is infringement may be 
 a question of opinion. But the bill would allege as a 
 fact that the defendant did make and sell or use a 
 machine made according to the plaintiff's specification, 
 or being a colorable imitation thereof ; or, that he did 
 copy from the plaintiff's work divers passages, or made 
 colorable imitations thereof, and did print and publish 
 the passages so taken and copied, or the passages so 
 
 1 ArcMjoM V. Commissioners, etc. 2 H. of L. Cas. 460. Hick- 
 son V. Lombard, L. B< I H. L. 331. 
 
 2 Hilliard v. Eiffe, L. E. 7 H. L. 39. See Harrison f. Guest, 8 
 H. of L. Cas. 481 ; Parrti. Jewell, 1 Kay & Johns. 671. 
 
34 PRINCIPLES OF EQUITY PLEADING. 
 
 colorably altered, in his, the defendant's, work. Or, if 
 the bill were for restraining waste, on the ground, say, 
 not of actual cutting timber, but of threatening and 
 intending to cut it, which would support an equity, 
 the allegation, in a properly drawn bill, would not be 
 simply of threat and intention to cut, but that the 
 defendant had, by a letter or verbally (as the case 
 might be), stated that he would cut timber ; or, that he 
 had sent a surveyor to mark trees for cutting; or of 
 some act, from which the court can collect intention to 
 cut. In fine, the allegation should be, in all cases, an 
 allegation of the specific fact or facts constituting the 
 equitable injury, and not merely of the equitable injury 
 resulting from the acts.^ 
 
 The rule, that every material fact necessary to the 
 plaintiff's equity must be distinctly alleged in the bUl, 
 is founded on this : that the plaintiff cannot strictly be 
 allowed to prove any matter that he has not put in issue; 
 and, even if the cause comes to a hearing upon evidence 
 of matter not distinctly put in issue, the court will, 
 nevertheless, refuse to make a decree on that evidence 
 for the plaintiff, solely on the ground of pleading, that 
 he has not alleged the case that he proves. Of course, 
 it is not meant that every individual fact to be proved 
 must be alleged ; but the fact or facts forming the sub- 
 stantial groundwork of the case on which relief is sought 
 must be distinctly alleged. 
 
 For example : if a bill were filed to set aside a deed 
 on the ground of undue influence, it would not be nec- 
 essary to allege every fact, showing the actual exercise 
 
 1 Drewry Eq. PI. 12, 13. 
 
BILLS. 35 
 
 of undue influence ; but it would be necessary to allege 
 the relation of the parties, and the general fact of undue 
 influence, and some specific instance or instances from 
 which the court could infer undue influence ; and upon 
 those allegations evidence of a more expansive character 
 might be gone into to establish the allegation of undue 
 influence.^ 
 
 The objection that a bill is deficient in certainty 
 should be taken by demurrer, and if the defendant neg- 
 lects to take it in that manner, it seems that he cannot 
 avail himself of the objection at the hearing ; ^ at all 
 events, it cannot prevail, if it is urged for the first time 
 upon an appeal taken from the decree.^ 
 
 As a general rule, conclusions of law need not be 
 averred ; but where certain facts are stated from which 
 it is intended to draw a conclusion of law, the bill 
 ought to be so framed as to give notice to the defendant 
 of the plaintiff's intention to insist on such conclusion ; 
 otherwise, he will not be allowed to do so. Thus, in a biU 
 for specific performance of an agreement to sell a lease- 
 hold, the plaintiff was not allowed to insist that the 
 defendant had waived his right to inquire into the land- 
 lord's title; because, although he had stated in his bill 
 facts from which the waiver might be inferred, he had 
 not alleged the waiver.* 
 
 A pleading must not contain matter that is scan- 
 dalous or impertinent. " Impertinence is the introduc- 
 
 1 Drewry Eq. PI. 15. 
 
 2 Carew v. Johnston, 2 Sch. & Lef. 280. 
 s Smith v. Kay, 7 H. of L. Cas. 750. 
 
 < Clive V. Beaumont, 1 De G. & Sm. 397. Gaston v. Frankum, 
 2 De G. & Sm. 561. 
 
36 PRINCIPLES OF EQUITY PLEADING. 
 
 tion of any matters into a bill, answer or other pleading 
 or proceeding in a suit, which are not properly before 
 the court for decision at any particular stage of the 
 suit." ^ But nothing relevant, though injurious, is con- 
 sidered scandalous,^ and the degree of relevancy is not 
 deemed material. A bill may contain matter which is 
 impertinent without being scandalous, but if it is scan- 
 dalous it must be impertinent.^ 
 
 It is important and necessary to adhere to the rule 
 that everything relevant to the issue between the parties 
 must be admitted to be averred, however it may bear on 
 the character of the parties, and it is no less important 
 to keep scandal off the record. The sole question in 
 such a case is whether the matter alleged to be scan- 
 dalous has a tendency, or, in other words, would be ad- 
 missible in evidence, to show the truth of any allegation 
 in the biQ that is material with reference to the relief 
 that is prayed.* 
 
 A bill is demurrable for what is termed multifarious- 
 Tiess ; ^ that is, mixing up in one suit several matters of a 
 distinct nature, or combiaing as against several defend- 
 ants, matters with some of which one or more of the 
 defendants have no concern.® By multifariousness is 
 meant the improperly joining in one bill distinct and 
 independent matters ; as, for example, the uniting in one 
 
 1 Story Eq. PI. § 266. Hood v. Inman, 4 Johns. Ch. 437. 
 
 2 Montriou v. Carvick, 6 Jur. 97, "Wigram, V. C. 
 
 3 Welford Eq. PI. 98. 
 
 * Lord Selborne L. C. in Christie v. Christie, 8 Ch. App. 503. 
 
 ^ An objection for multifariousness must he taken by demurrer ; it 
 is too late to raise the objection at the hearing. Cousens v. Rose, L. E. 
 12 Eq. 366. 
 
 6 Dre-R-ry Eq. PI. 40. 
 
BILLS. 37 
 
 bill of several matters entirely distinct and unconnected 
 against one defendant, or the allegation of several mat- 
 ters of a distinct and independent nature against several 
 defendants.^ 
 
 To lay down any rule applicable universally, said 
 Lord Chancellor Cottenham in a leading case,^ or to 
 say "what constitutes multifariousness, as an abstract 
 proposition, is, upon the authorities, utterly impossible. 
 The cases upon the subject are extremely various ; and 
 the court, in deciding them, seems to have considered 
 what was convenient in particular circumstances rather 
 than to have attempted to lay down any absolute rule.^ 
 The only way of reconciling the authorities upon the 
 subject is by adverting to the fact that although the 
 booJiS speak generally of demurrers for multifariousness, 
 yet hx truth such demurrers may be divided into two 
 distinct kinds. Frequently the objection raised, though 
 termed multifariousness, is in fact more properly mis- 
 Joinder ; that is to say, the cases or claims united in the 
 bill are of so different a character that the court will 
 not permit them to be litigated in one record. It may 
 be that the plaintiffs and defendants are parties to the 
 whole of the transactions which form the subject of the 
 suit, and nevertheless those transactions may be so dis- 
 similar that the court will not allow them to be joined 
 together, but will require distinct records. But what is 
 more familiarly understood by the term multifariousness, 
 
 1 story Eq. PL § 271. To a 1:111 of discovery multifariousness is an 
 ultra-technical objection, even if well founded. Wickens, V. C. in 
 Brown v. Wales, L. R. 15 Eq. 147. 
 
 2 Campbell v. Mackay, 1 Myl. & Or. 603, 618, A. D. 1836. 
 « Gaines v. Cbew, 2 How. 642. 
 
38 PRINCIPLES OF EQUITY PLEADING. 
 
 as applied to a bill, is where a party is able to say he is 
 brought as a defendant upon a record, with a large por- 
 tion of which, and of the case made by which, he has 
 no connection whatever. ^ The form of demurrers for 
 multifariousness strongly illastrates this distinction, at 
 least as it used to be understood ; for the old form of the 
 demurrers upon the last-mentioned ground went on to 
 state the evil of uniting distinct matters in one record, 
 whereby parties were put to great and useless expense, 
 ap objection which has no application in a case of mis- 
 joinder. 
 
 Thus it appears from the above description given by 
 Lord Cottenham that the term "misjoinder" is equally 
 applicable to the improper introduction of distinct 
 matters, as well as parties to the record. 
 
 The distraction between multifariousness and misjoin- 
 der has been usually understood as follows : namely, 
 that the former consists in mixing up several matters in 
 one bill, which ought to be made the subject of distinct 
 suits ; and the latter — i. e. misjoinder — is where per- 
 sons are improperly introduced as parties to the record ; 
 but this definition will not exactly meet the dicta of 
 the judges upon the subject. Indeed, it will be seen, 
 by reference to this rule of pleading, that where a suit 
 is multifarious it necessarily involves a misjoinder either 
 of plaintiff or defendant. On the other hand, there may 
 exist a misjoinder of parties, without multifariousness ; 
 where, for instance, a defendant properly objects that he 
 
 1 In Brookes v. Whitworth, 1 Madd. 86, it was held that a defend- 
 ant has a right to insist that he is not bound to answer a bill, contain- 
 ing several distinct and separate matters, relating to individuals with 
 whom he has no concern. 
 
BILLS. 39 
 
 ought not to be made a party to the- record, this objec- 
 tion does not necessarily imply that the bill is multi- 
 farious.^ 
 
 In a very recent case it was said by Vice Chancellor 
 Wickens that there are three analogous vices to which 
 bills in equity are subject, — misjoinder of plaintiffs, 
 misjoinder of defendants, and multifariousness or mis- 
 joinder of subject of suit. Multifariousness, properly so 
 called, exists when one of the defendants is not inter- 
 ested in the whole of the relief sought, as the old form 
 of the demurrer for multifariousness shows. Misjoinder 
 of subjects of suit is where two subjects distinct in their 
 nature are united in one bill, and for convenience sake 
 the court requires them to be put in two separate records. 
 The case of Salvidge v. Hyde,^ in which the bill was 
 for the administration of a testator's estate, and to set 
 aside a sale made of part of it by the executor, is an in- 
 stance of this. There the court refused to allow the two 
 subjects to be united, although the plaintiff was inter- 
 ested iu each, and the defendants were liable in respect 
 of each.3 The question is, whether the various subjects 
 as to which relief is sought are such as, if fit for discus- 
 sion, can be properly dealt with in one suit. This is, 
 of course, a matter of discretion. The court will not 
 allow distinct subjects to be mixed up in one suit when 
 it would be inconvenient to the court, or unfair to some 
 one or more of the parties to it.* 
 
 1 Goldsmith Eq. 397, 6th ed. 
 
 2 5 Madd. 138, and Jacob, 151. 
 
 8 In the case of Pointon v. Pointon, L. R. 12 Eq. 547, the misjoin- 
 der is of this nature. 
 
 * Pointon v. Pointon, L. E. 12 Eq. 552. 
 
40 PEINGIPLES OF EQUITY PLEADING. 
 
 The cases, especially Campbell v. Mackay,^ go to this 
 extent, that if a plaintiff has against one party a common 
 case, in respect of several matters, such that as against 
 that party those matters might properly be aU joined in 
 one bill, he is not to be compelled to file more than one 
 bill in respect of them, because some third person who 
 has such an interest in respect of one of those matters 
 as to make him a necessary party to any proceeding of 
 it has no interest in any of the other matters; but the 
 plaintiff may combine all the matters in one suit, mak- 
 ing that third person a party, and that party cannot ob- 
 ject on the ground of his want of interest in some of the 
 matters.^ 
 
 In a recent case an eminent equity judge observed : — 
 
 " I regard the law with respect to multifariousness as 
 settled by Campbell v. Mackay,^ that where all the 
 plaintiffs have a common interest in the whole of the 
 matter comprised in the bill, the objection of multifari- 
 ousness set up by defendants who are concerned only 
 in a portion of the subject-matter is a question of 
 discretion, to be determined upon consideration of con- 
 venience with regard to the circumstances of each par- 
 ticular case. The question is, according to Poiaton v. 
 Pointon,* whether the various subjects as to which re- 
 lief is sought are such as, if fit for discussion, can be 
 properly dealt with in one suit." ^ 
 
 The true test of multifariousness, so far as a general 
 rule can be stated, seems to be this : — 
 
 1 1 Myl. & Cr. 603. 
 
 2 Turner, L. J. in Hamp v. EoMnson, 3 De G. J. & S. 108. 
 
 3 1 Myl. & Cr. 603. Ante, p. 37. ■• L. R. 12 Eq. 547. 
 6 Sir G. Jessel, M. R. in Coates v. Legard, L. R. 19 Eq. 56, 59. 
 
BILLS. 41 
 
 If a defendant can say, " I am called upon to answer 
 a bill containing two distinct subject-matters, with one 
 of which only I am concerned, and I am associated 
 with other defendants not concerned with that issue, 
 and solely concerned with the other," then he may de- 
 mur for multifariousness. But if the matters are in 
 any material degree blended, so that directly or indi- 
 rectly they concern all the defendants, the bill is not 
 multifarious.^ 
 
 It is extremely difficult to say what is in practice 
 multifariousness, and therefore a demurrer on that ground 
 is the most dangerous that can be attempted. The 
 authorities are numerous, and there are many instances 
 of the application of the rule. A reference to several 
 cases will show what is and what is not multifarious- 
 ness. 
 
 The plainest example of multifariousness is that of a 
 bill filed by a patentee against several separate infringers, 
 because each separate infringer has no concern whatever 
 with the default or wrong of the other, and accordingly 
 the practice is to file a separate bill against each in- 
 fringer. 
 
 A bill against a person who has agreed to grant a 
 lease to the plaintiff, and against a tenant of the intended 
 lessor, claiming under a lease prior to the agreement, 
 praying for specific performance of the agreement by 
 the lessor for a lease, and for an injunction to restrain 
 the tenant from exercising rights over the land agreed 
 to be leased, contrary to the terms of the agreement, is 
 multifarious.^ 
 
 1 Drewry Eq. PI. 42. ^ Cousens v. Eose, L. R. 12 Eq. 366. 
 
42 PEINCIPLES OP EQUITY PLEADING. 
 
 A bill brought by an assignee of an insolvent debtor 
 against several defendants to set aside mortgages of real 
 estate executed to each of them separately, on the same 
 day, by the insolvent debtor, in violation of the insolvent 
 laws, and also other mortgages of other real estate exe- 
 cuted by him to a portion of the defendants separately 
 on another day, in violation of the insolvent laws, is 
 multifarious.^ 
 
 A bill which seeks to enforce a statutory liability 
 against Snembers of a corporation is multifarious if it 
 embraces distinct and independent matters against two 
 classes of defendants, the officers and the stockholders, 
 the grounds of whose liability are entirely distinct, and 
 depend upon facts wholly independent of each other.^ 
 But a bill against the officers alone, to enforce a single 
 debt against them, if they have a common interest and 
 are under the same liability, is not multifarious because 
 it contains several distinct grounds of liability.^ 
 
 If a bill is filed by a plaintiff, claiming under the will 
 of A., and under a settlement made by B. (the two in- 
 struments comprising distinct properties, and with dis- 
 tinct and different trusts), against the trustees of both, 
 the bill would be multifarious ; and so, even though the 
 trustees of the two instruments should be individually 
 the same persons. But? if A. made a settlement of part 
 of his property on C. and D., and then made his will, 
 giving the rest of his property to C. and D., and the 
 trusts of the two portions were the same or similar, and 
 
 1 Metcalf V. Cady, 8 Allen, 587. 
 
 2 Cambridge 'Water Works v. Somerville Dyeing Co. 14 Gray, 193. 
 Pope V. Leonard, 115 Mass. 286. 
 
 8 Pope V. Salamanca Oil Co. 115 Mass. 286, 290. 
 
BILLS. 43 
 
 the trustees and executors were the same persons, or 
 even if they were not all the same, a bill by C. and D., 
 against those trustees, in respect of both properties, is 
 not multifarious.^ 
 
 A biU was filed by the heir and devisee of A., and the 
 parties claiming his personal estate, against B., the party 
 claiming to be entitled to the real estate, and C, the per- 
 sonal representative ; showing that as to the personal 
 estate B. had had nothing to do with it ; but showing 
 also that both real and personal estate passed under the 
 same instrument ; that the trusts of both were similar ; 
 and alleging frauds affecting both estates, as being com- 
 mitted both by B. and C. B. demurred for multifari- 
 ousness, insisting that the bill sought relief in respect 
 of two matters unconnected, viz. the real estate and 
 the personal estate. The' demurrer was overruled.^ 
 
 Where there are several parties, although uncon- 
 nected, they may be joined in a suit, provided they 
 have among themselves one common interest centring in 
 the point in issue in the cause. Thus, where plaintiff 
 claimed one general and entire right, viz. a sole fishery 
 against several persons claiming adverse rights in the 
 fishery by different titles, a bill to restrain infringement 
 lay against all.^ 
 
 And it does not follow that where there are several 
 matters inserted in the bill, although of a distinct nature, 
 an objection on that account will prevail ; if, for exam- 
 ple, there exists some connecting link rendering a com- 
 
 1 Drewry Eq. PI. 41. 
 
 2 Innes v. Mitchell, 4 Drew. 57. 
 
 " "Ward V. Northumberland, 2 Anst. 469, explained in Campbell v. 
 Maokay, 1 Myl. & Cr. 619. 
 
44 PEINCIPLES OF EQUITY PLEADING. 
 
 bination of them convenient to be settled by means of 
 one and the same suit, the court wlU prefer determining 
 the claims of all the parties by the same decree to the 
 allowing of separate proceedings.^ 
 
 Finally, it may be stated that, in dealing with objec- 
 tions of this class, the court has a wide discretion, and 
 allows them only where real inconvenience would result 
 from what is objected to.'^ 
 
 The body of a bill is, in modem practice, divided 
 into paragraphs, numbered consecutively : these para- 
 graphs may be as long or as short as the pleader 
 chooses to make them ; but it is usual to confine each 
 paragraph to a' specific fact, or class of facts, and the 
 practice is convenient. 
 
 3 and 4. The third and fourth ingredients necessary 
 to a bill wHl be more conveniently dealt with under 
 the head of defence to a bUL 
 
 4. The prayer for relief. 
 
 The statements of the biU being concluded, the next 
 part is the prayer for particular relief. 
 
 The function of the prayer, as its very name implies, 
 is to show to what relief the plaintiff thinks himself 
 entitled ; or, in other words, what is the decree that he 
 seeks to obtain. 
 
 The prayer should be in conformity with the case 
 made by the biU.^ 
 
 1 Calvert on Parties, 96, 2d ed. Goldsmith Eq. 398, 6th ed. 
 
 2 Brown v. Wales, L. R. 15 Eq. lil. 
 
 » The substance of the ground of relief must appear in the bill ; but 
 every minute fact need not be stated in detaiL Nokes v. Fish, 3 Drew. 
 735. 
 
BILLS. 45 
 
 For example: suppose a bill filed praying for the 
 construction of a marriage settlement, and that it may 
 be declared that, on the true construction, the plaintiff 
 is entitled to certain rights. And suppose that the bill 
 makes on its facts a case for reforming the settlement, 
 on the ground of its having been drawn contrary to in- 
 structions. On such a bill the plaintiff could have no 
 relief (assuming the decision on the construction to be 
 against him), because the prayer would conclude him 
 from obtaining the relief for which he really had laid 
 ground. 
 
 This rule is founded on the same principle that re- 
 quires the allegations of the bill to be distinct, viz. that 
 the defendant has a right to know what is the case that 
 he has to meet, and is not to be left in any doubt about 
 it ; which he would be, if the bill made one case, and 
 the prayer was for a species of relief founded on another 
 case. The rule is, indeed, one of such obvious necessity, 
 and so clearly judicious on the face of it, that it would 
 be almost an affront to the common sense of the reader 
 to state it, were it not that bills are not unfrequently 
 brought into court neglecting compliance with the rule.^ 
 
 Probably the error, when committed, arises (if not 
 from the mere hurry of business) from an inaccurate 
 conception of the effect of the prayer for general relief, 
 which is often supposed to have a much greater effect 
 than it has. 
 
 The extent of effect of the prayer for general relief 
 is this : that the court will rely upon it, in order to 
 expand the relief specifically sought, if a case is made 
 
 » Drewry Eq. PI. 17, 18. 
 
46 PRINCIPLES OP EQUITY PLEADING. 
 
 not only for that specific relief, but for something more, 
 of the same nature; or, if the specific relief is not pre- 
 cisely the kind of relief that ought to be granted on the 
 case made, but is some relief analogous to it, then, also, 
 the court will act on the prayer for general relief. But 
 the court will not, on the prayer for general relief, give 
 a relief inconsistent with,^ or wholly different in its nature 
 from, the relief prayed by the bill. 
 
 It sometimes happens that the plaintiff is not certain 
 of his title to the specific relief he wishes to pray for ; 
 it is, therefore, not unusual so to frame the prayer that, 
 if one species of relief sought is denied, another may 
 be granted. Bills with a prayer of this description, 
 framed in the alternative, are called bills with a double 
 aspect. 
 
 In bills framed with a view to alternative relief 
 there must be a distinct line drawn, clearly stating one 
 set of facts on which the inference of law is to arise on 
 one alternative, and,- on the other, equally clearly stat- 
 ing those facts on which the other alternative may be 
 arrived at. Thus, a plaintiff cannot assert a will to be 
 invalid, and at the same time claim to take a benefit on 
 the assumption of its validity.^ 
 
 " The principle with regard to alternative relief I take 
 to be this," said Vice Chancellor Wood: "You have 
 no right to allege two inconsistent states of facts and 
 ask relief in the alternative, for the two cannot be true ; 
 but you have always a right to state the facts of the 
 
 1 Hill V. Great Northern Eailway Co. 5 De G. M. & G. 66. Wil- 
 kin V. Wilkin, 1 Johns. Oh. 111. 
 
 2 Wright V. Wilkin, 4 De G. & J. 141. 
 
BILLS. 47 
 
 case, the documents and deeds, and ask the conclusion 
 of the court on those facts and documents, and say the 
 court may come to one conclusion of law or it may 
 come to another ; and you may ask the court to come 
 to a conclusion on the facts which you have disclosed, 
 having stated everything that wiU enable the court to 
 form a proper judgment. You may ask the judgment 
 of the court on two alternatives. That may be done on 
 any bill without objection." ^ 
 
 The prayer is, like the bill, divided into paragraphs, 
 according to the several kinds of relief asked, as, for 
 instance, — 
 
 1. That the trusts of the wiU in the pleadings men- 
 
 tioned may be carried into effect under the direc- 
 tion of the court. 
 
 2. That an account may be taken of the transactions of 
 
 the defendants in respect of the estate in question, 
 or for other accounts. 
 
 3. That a receiver may be appointed. 
 
 4. That some of the defendants may be restrained by 
 
 injunction from doing certain acts, etc. 
 
 5. That, if necessary, new trustees may be appointed. 
 
 And the last paragraph must always be the prayer for 
 general relief. 
 
 Finally, the names of the defendants are inserted, 
 and the bill is signed by the pleader, without date or 
 address. It is hardly necessary to say that a biU need 
 not be sworn to.^ 
 
 1 Rawlings v. Lambert, 1 Johns. & Hem. 458, 462. 
 
 2 Bums V. Lynde, 6 Allen, 305. 
 
48 PEINCIPLES OF EQUITY PLEADING. 
 
 A modern bill contains no interrogatories. If the 
 plaintiff desires (as he does in most hostile cases) to 
 obtain discovery by answer as to the matters alleged 
 in the bill, he files separate interrogatories, which are 
 drawn and signed by his solicitor. 
 
 Interrogatories are headed by the title of the suit, 
 thus, — 
 
 In Chancery. 
 
 A. B. and C. D Plaintiffs, 
 
 E. F Defendant. 
 
 Interrogatories for the examination of the above-named 
 defendant, in answer to the plaintiffs' bill of complaint. 
 
 And then the interrogatories follow, divided into 
 paragraphs, which it is convenient to all parties, though 
 it is not compulsory, to number in conformity with the 
 paragraphs of the bill. 
 
 The only strict rule of •pleading that applies to inter- 
 rogatories is that they must be founded on the allega- 
 tions ; the plaintiff cannot interrogate as to matters 
 which he has not put in issue, though he may expand 
 his interrogatories so as to cover every incident of the 
 facts alleged. For the rest, the drawing of interrogato- 
 ries is merely a matter of common sense and acuteness, 
 and the only material point to be attended to is, that 
 they should be so worded as to, make it impracticable 
 for the defendant to evade answering the real question. 
 One example will be sufficient to show the mode of 
 drawing interrogatories.-' 
 
 1 Under the old system of equity pleading, when every fact alleged 
 by the bill, however trivial, was made the subject of an interrogatory, 
 
( V) 
 
 BILLS. 49 
 
 If an allegation were, that " the defendant had applied 
 £100 of the plaintiff's money in purchasing seven bales 
 of silk," and it were material to know what he had 
 done with the money, if he had not applied it precisely 
 as alleged, an interrogatory " whether he had not applied 
 £100 of plamtiff's money in purchasing seven bales 
 of sUk," would not meet the object of interrogatories ; 
 for, if the plaintiff had applied £80 in purchasing five 
 bales of silk, and had spent the rest on himself, he 
 might mtf-JD- a direct negative to the whole interrog- 
 atory*'^^! worded as above) without perjury. A cau- 
 tiously drawn interrogatory would be in this form : 
 "Whether the defendant had not applied £100 of the 
 plaintiff's money or some and what part thereof, in the 
 purchase of seven or some other and what number of 
 bales of silk, or whether or not in the purchase of some 
 and what quantity of some other and what material or 
 materials, or how had he disposed of the plaintiff's 
 money, and every or any part thereof ; " and such an 
 interrogatory would be justified by the allegation of the 
 bill.i 
 
 Before concluding the subject of bills, it may not be 
 useless to make a few general remarks on certain forms 
 of pleading, useful if cautiously used, but prejudicial if 
 used rashly. 
 
 It is very usual in drawing a bill, the equity of 
 which is doubtful, to seek to protect it against demur- 
 interrogatories did not require, or at any rate did not receive, much 
 care from the pleader. It is now the practice only to interrogate as 
 to material allegations, and the interrogatories therefore require the 
 pleader's personal attention and skill. 
 
 1 Drewry Eq. PI. 20, 21. 
 
 4 
 
50 PRINCIPLES OF EQUITY PLEADING. 
 
 rer, by an allegation of fraud against the defendants, 
 on the ground that fraud gives a general jurisdiction to 
 the court. But a mere general allegation of fraud, with- 
 out an allegation of specific acts of fraud, will not so 
 protect a biU, and there are instances of demurrers be- 
 ing allowed on that ground ; because fraud or no fraud 
 is a question on which the court is to form its opinion 
 on the facts, and not a fact in itself, but rather an in- 
 ference of law in the nature of a fact. Specific allega- 
 tions of specific acts of fraud will, no doubt, in most 
 cases, protect a biU against demurrer ; but if on the 
 answer coming in the fraud is denied, and the plaintiff 
 has no means of proving it except out of the mouth of 
 the defendant, he is then put to amend his bill, and 
 strike out the allegations of fraud ; for if he conducts 
 the suit to a hearing, with allegations of fraud in the 
 bill, and produces no evidence in support of them, he 
 wUl certainly, however much in respect of the rest of 
 his bill he might be entitled to a decree with costs, re- 
 ceive no costs in respect of so much at least of the 
 suit as the allegations of fraud have rendered neces- 
 sary ; and he may find that the decree, if in his favor, 
 will be on that ground only wholly without costs ; and 
 if against him, vnth costs. In other words, the court 
 visits allegations of fraud unsupported, with punish- 
 ment, as an offence.^ 
 
 In suits against trustees or executors, for the admin- 
 istration of the estates represented by them, and for an 
 account, it is in general advisable to insert in the origi- 
 nal bill an allegation of wilful default ; that is, an alle- 
 
 1 Drewry Eq. PI. 21, 22. 
 
BILLS. 51 
 
 gation that they have allowed parts of the estate to 
 remain outstanding and to be lost, which, but for their 
 toilful neglect and default, might have been collected. 
 And even if the answer negatives the allegation, it 
 should be retained in the bUl, unless the plaintiff has 
 good reason to be satisfied that the answer is perfectly 
 true. The reason is this : It is a rule of the court that 
 it will not on heariag a cause on further consideration 
 make a decree against trustees or executors, charging 
 them with the consequences of wilful default, unless 
 either the bill charges wilful default, or the prehmi- 
 nary decree has directed inquiries with a view to 
 wilful default. Now, the common preliminary decree 
 is usually a mere decree for an account of what has 
 come to the hands of the defendants ; and on the hear- 
 ing of the cause for making the original decree the 
 court wUl not direct inquiries with a view to wilful 
 default, unless it is alleged by the bill, or unless it 
 appears ahund^ on the pleadings, which is of course 
 not probable, if the bill has never alleged it. The 
 result is, that when the account has been taken, and 
 shows that the defendant has in fact been guilty of 
 wilful default, the plaintiff can obtain no relief. Bills 
 of this class should therefore, as a general rule, in the 
 absence of clear ground for believing it misplaced, con- 
 tain an allegation of wilful default and neglect in the 
 defendants.^ 
 
 A cross-bill implies a bill brought by a defendant in 
 a suit against the plaintiff in the same suit, or against 
 other defendants in the same suit, or against both, 
 
 1 Drewry Eq. PI. 23, 24. 
 
52 PKINCIPLES OF EQUITY PLEADING. 
 
 touching the matters in question in the original bill. 
 A bill of this kind is usually brought either to ob- 
 tain fuU relief to all parties touching the matters of 
 the original bill, or to obtain a necessary discovery of 
 facts in aid of the defence to the original bill.^ This 
 course involved imnecessary expense, and now the same 
 object is accomplished by the defendant filing inter- 
 rogatories for the examination of the plaintiff. This 
 can be done at any time after the defendant has filed a 
 sufiicient answer. The defendant to a cross-bill is in 
 no case compelled to answer before the defendant to 
 the original bill shall have answered such bill. 
 
 1 Cooper Eq. PI. 85. Story Eci. PI. 389. Andrews i;. Gilman, 122 
 Mass. i7i. 
 
DEMUEEEES. 53 
 
 CHAPTEE IV. 
 
 DEMURRERS. 
 
 A BILL may be met in three modes : by demurrer, by 
 plea, and by answer. A defendant may demur to part, 
 plead to part, and answer as to the residue ; but in some 
 form he must meet the whole substance of the bill. 
 
 A demurrer (from the Latin demorari, or French 
 demorrer, to " wait," or " stay ") imports, according to 
 its etymology, that the objecting party will not pro- 
 ceed with the pleading, because no sufficient statement 
 has been made on the other side; but will wait the 
 judgment of the court whether he is bound to answer. 
 
 Demurrers are either general or special. They are 
 general, when no particular cause is assigned. They 
 are special, when the particular defects or objections 
 are pointed out. The former is sufficient when the bill 
 is defective in substance. The latter is indispensable, 
 when the objection is to the defects in the biU in 
 point of form.^ 
 
 A demurrer may be general, that is, to the whole 
 equity ; or it may be partial, that is, that the suit is 
 not, as to its frame, properly constituted : and both kinds 
 of demurrers may be combined ; ^hat is, a demurrer for 
 want of equity, and to the constitution of the suit. 
 
 1 Precedents of Demurrers are given on pp. 135-137. 
 
54 PRINCIPLES OF EQUITY PLEADING. 
 
 It has already been said that the plaintiff must state 
 in his bill every fact on which he relies as giving him 
 a title to the relief prayed, and that nothing can be 
 proved on his behalf at the hearing which is not stated 
 in the bill, or which does not tend to support an alle- 
 gation in the bill. It is clear, therefore, that if the 
 statements are not such as to entitle the plaintiff to the 
 relief sought, even supposing them to be fully proved, 
 and nothing to be proved in opposition, the plaintiff 
 will not get any relief at the hearing. Moreover, since 
 the right to have answers to the interrogatories is 
 merely subsidiary to the right to relief, when this faUs 
 the right to discovery faUs also ; hence, in case such a 
 bill is filed, the plaintiff takes nothing by it, and the 
 interest of all parties requires that the suit should be 
 put an end to as soon as possible. 
 
 If, therefore, the defendant thinks that the bill is 
 such as above described, he is at liberty to take the 
 objection at once, and thus save the expense and trouble 
 of further proceedings: the mode of taking the objec- 
 tion is by interposing a demurrer. 
 
 At common law, a demurrer is the assertion by one 
 of the parties, that the last pleading of his adversary 
 is not sufficient in law: thus, if a defendant demurs, 
 instead of filing a plea, he alleges that the declaration 
 does not disclose any ground of action; and if the 
 plaintiff demurs, instead of replying, he alleges that 
 the plea does not disclose any sufficient answer to the 
 declaration. In each case the demurrer admits the truth 
 of the facts alleged, but disputes their sufficiency. 
 
 In considering a bill in chancery as analogous to a 
 
DEMUKEEES. 55 
 
 declaration at law, it must be remembered that the 
 former has two objects, — relief and discovery ; and 
 the primary object of a demurrer is to resist the giving 
 the discovery, which, as we have already said, is usually 
 done by alleging that the plaintiff has not shown any 
 right to relief, to which that to discovery is usually 
 subsidiary. There are cases, however, in which a de- 
 murrer will protect the defendant from giving the 
 discovery, although the bill shows a title to relief. A 
 demurrer to a bill in chancery will, therefore, be seen 
 to be exactly analogous to a demurrer to a declaration 
 at law. In both cases, if the demurrer is held sufficient, 
 there is an end to the suit; if held insufficient, the 
 plaintiff at law has judgment, unless the defendant has 
 filed pleas, in which case the pleas are proceeded upon 
 as if no demurrer had been interposed. In chancery, 
 if a demurrer is overruled, the defendant must resort 
 to some other defence. 
 
 It is obvious, as has already been stated, that the 
 defendant may meet the claim of the plaintiff in one 
 of three ways : by admission, by denial, or by pleading 
 some new matter in bar of the relief, or some part of 
 it. In equity, there are two forms of defence against 
 the plaintiff's claim, the plea and the answer: at law 
 there is but one, the plea. The demurrer, for want of 
 a legal right to relief, is common to both jurisdictions. 
 
 A plea in equity is, in effect, an introduction by the 
 defendant of fresh facts into the case made out by the 
 plaintiff, sufficient, if proved, to make the action demur- 
 rable. An answer is necessary when the dispute could 
 not so easily be reduced to a simple question. 
 
56 PRINCIPLES OF EQUITY PLEADING. 
 
 A plea at common law is sometimes a complete, and 
 sometimes only a partial, defence to an action. There 
 are many kinds of plea, the principal divisions being, 
 pleas in abatement and pleas in bar. Several pleas 
 may be pleaded together, even if inconsistent with 
 one another. For instance, an administrator has been 
 allowed to plead at the same time ne unques adminis- 
 trator and plene administravit. The object is to put 
 the plaintiff to the proof of his whole case ; and, if the 
 defendant does not succeed upon one plea, he may yet 
 succeed upon another. The pleas are usually all tried 
 together; but the court has power, in some cases, to 
 try one plea before another. 
 
 A demurrer only admits the truth of the facts well 
 pleaded; it does not admit matters of inference and 
 argument, however clearly stated ; ^ it does not admit, 
 for example, the accuracy of an alleged construction 
 of an instrument, when the instrument itself is set 
 forth in the bill, or a copy is annexed, against a con- 
 struction required by its terms ; nor the correctness of 
 the ascription of a purpose to the parties, when not 
 justified by the language used.^ Neither is a plaintiff 
 concluded on demurrer by his allegations of law.^ 
 
 The demurrer commences by a protestation of the 
 falsehood of the statements of the bUl, which is in- 
 
 1 That accomplislied pleader, Baron "Wood, thus broadly laid down 
 the rule : " A demurrer only admits matters positively alleged in the 
 bill ; not every fanciful pretence suggested." Baker v. Rocker, 6 Price, 
 381. 
 
 2 Dillon V. Barnard, 21 Wall. 43". Lea v. Robeson, 12 Gray, 280. 
 ' Brown v. Ifewall, 2 Myl. & Cr. 550, 576. Tompson v. National 
 
 Bank of Redemption, 106 Mass. 128. 
 
DEMUERERS. 57 
 
 tended to prevent the defendant being concluded by 
 the admission -wMch, by demurring, he makes, argu- 
 menti gratia, of the truth of the statements of the bill; 
 by it the defendant reserves to himself the right of 
 denying these statements in any other proceeding, or 
 in the same suit in case the demurrer be adjudged 
 insufficient. A cause of demurrer is then stated, 
 together with a general allegation of the existence of 
 other grounds on which the bill is demurrable, after 
 which the defendant prays to be dismissed out of the 
 court, having been paid his costs, and without making 
 answer to the bill. 
 
 A general demurrer for want of equity admits all the 
 facts alleged in the bill to be true; and so admitting 
 them, submits to the judgment of the court, that the 
 plaintiff on his own showing has no particle of equity. 
 The principle on which a demurrer is heard and decided 
 is this : the court treats it as if the cause were being 
 heard on the biU alone, every allegation of the bill 
 being proved; and if so treating it as a hearing, the 
 court sees that any relief, however small, might be 
 granted, the demurrer wiU be overruled; secus, if the 
 court sees that no relief whatever could be given. 
 
 A demurrer may be bad in point of form, though 
 well founded in substance. It must be strictly con- 
 fined to submission, that on the matter stated in the hill 
 there is no equity; it must not suggest any fad, or any 
 matter not in the bill, for that is the function of a plea 
 or an answer. In other words, it must not rest on 
 proof of any matter contained in itself, but only on the 
 matter alleged in the bill. Thus, if a bill alleged an 
 
58 PEINCIPLES OF EQUITY PLEADING. 
 
 agreement between the plaintiff and defendant, and 
 prayed specific performance, a demurrer, submitting 
 that the agreement could not be performed, averring 
 in support of that suggestion that it had not been signed, 
 or that it had been fraudulently obtained, is bad, as what 
 is technically termed " a speaking demurrer ; " that is, it 
 suggests matter either contrary to or not contained in 
 the allegations of the bill, and requiring proofs dehors 
 the bill.i 
 
 A demurrer to the whole equity may be founded on 
 several grounds, of which it will be convenient here to 
 point out the most frequent. 
 
 It may be that the plaintiff has no title, in the sense 
 of no estate; that is, admitting that the defendant may 
 be liable to be sued by somebody, that the plaintiff is 
 not the person who has the title. As, for example, if 
 a bill alleging an original title in the plaintiff showed . 
 by its other allegations that he had parted with the 
 tvhole of his interest absolutely to some other person, 
 the defendant might demur generally, on the ground 
 that whatever might be the defendant's liability to that 
 other person, he had none to the plaintiff. But in cases 
 of this sort care must be taken to distinguish where 
 the plaintiff has some interest remaining in him, and 
 when he has absolutely none; for if he has any in- 
 terest, though it be but small, then a demurrer wUl not 
 lie to the whole equity, but only for want of proper 
 parties.^ 
 
 1 "Wood V. Midgley, 5 De G. M. & G. 41. Dawkins v. Penrhyn, 
 6 Ch. D. 322. 
 
 « Drewry Eq. PI. 35. 
 
DEMURRERS. 59 
 
 A demurrer may be to the jurisdiction ; that is, admit- 
 ting that the plaiutiff has title in the subject-matter 
 and title to sue, and to sue the particular defendant, 
 yet that the court of chancery is not the proper juris- 
 diction. For instance, if a bUl is filed by a contractor 
 against a railroad company for an account and pay- 
 ment, and it appears on the face of the bill that the 
 claim is merely for work and labor done, without any 
 complicated cross accounts, that might be ground for 
 an action at law, but not for an account in equity, and 
 a general demurrer to the jurisdiction would lie. But 
 if it appears on the face of the bni that there are 
 cross accounts of a complicated nature ; that is, a de- 
 mand by the contractor against the company, and a 
 demand by the company against the contractor, and 
 both demands involving intricate accounts, — the bni 
 would not be demurrable, because, although that might 
 be ground for an action, it would also fall within the 
 concurrent jurisdiction of equity.^ 
 
 Except in a few instances, courts of equity will not 
 assume jurisdiction where the powers of the ordiaary 
 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, 
 a demurrer, which is in truth a demurrer to the juris- 
 diction of the court, wUl hold. But where there is a 
 clear right, and yet there is no remedy in a court of 
 law, or the remedy is not plain, adequate and complete, 
 
 1 See, as to what species of account is cognizable in equity, Fluker v. 
 Taylor, 3 Drew. 183. 
 
60 PEINCIPLES OF EQUITY PLEADING. 
 
 and adapted to the particular exigency, then, and in 
 such cases, courts of equity will maintain jurisdic- 
 tion.^ 
 
 The sixteenth section of the Judiciary Act of 1879,^ 
 enacting "that suits in equity shall not be sustained 
 in either of the courts of the United States in any case 
 where plain, adequate and complete remedy may be 
 had at law, " is merely declaratory, and made no change 
 in the pre-existing law. Accordingly it has been 
 declared by the Supreme Court of the United States 
 that the absence of a plain and adequate remedy at 
 law affords the only test of equity jurisdiction, and 
 the application of this principle to a particular case 
 must depend altogether upon the character of the case 
 
 1 Mitf. PI. 145, 5th ed. Story PI. § 473. Boyce «. Grundy, 3 Peters, 
 215. Brown K. BaiTett, 100 Mass. 355, and -105 Mass. 651, 560. Jones 
 ■v. Newhall, 115 Mass. 244. Frue v. Loring, 120 Mass. 507. 
 
 According to the practice in Massachusetts, under the statutes 
 relating to the exercise of jurisdiction in equity, a. bill is demurrable, 
 not only if it show that the plaintiff has a, remedy at law, equally 
 sufiicient and available, but also if it fail to show that he is without 
 such remedy. Jones v. Newhall, 115 Mass. 252, 253, and cases there 
 cited. And the objection must be taken at the first opportunity, by 
 demurrer or as a preliminary question. Being an objection to the 
 jurisdiction, it is too late to make it after the jurisdiction has been 
 submitted to. First Congregational Society i;. Trustees, 23 Pick. 148. 
 Russell V. Loring, 3 Allen, 121. Lawrence v. Barrett, 5 Allen, 140. 
 Dearth v. Hide & Leather National Bank, 100 Mass. 540. Jones u. 
 Keen, 115 Mass. 170. And even where the defendant added to his 
 general answer a demurrer on the ground that the plaintiff had an 
 adequate and complete .remedy at law, it was held that, after the 
 case had been heard before a single judge upon bill, answer and proofs, 
 and the point was not raised at the hearing and was not reserved for 
 the consideration of the full court, the objection was waived. Page v. 
 Young, 106 Mass. 313. 
 ^ Statutes at Large, 82. 
 
DEMUEEEES. 61 
 
 as disclosed in the pleadings.^ And although the objec- 
 tion is not made by demurrer, plea, or answer, nor is 
 suggested by counsel, nevertheless, if it clearly exists, 
 it is the duty of the court of its own motion to recog- 
 nize it and give it effect.^ 
 
 A demurrer may be grounded on this, that admitting 
 the plaintiff's title to sue some person, the defendant is 
 not the person whom he has such title to sue. As, for 
 instance, if a bill were filed by a creditor of the estate 
 of a deceased person, yet unadministered, against a party 
 beneficially interested, instead of against the legal per- 
 sonal representative, the defendant might demur, on 
 the ground that the bill would lie not against him, but 
 against the personal representative.^ 
 
 A bill is demurrable if it alleges matter and prays 
 rehef ia respect of matter which, if proved, would ex- 
 pose the defendant to penalties or forfeiture. Thus, if 
 a bill is filed to set aside a deed, on the ground that 
 the defendant had forged a signature to it ; or, if a bill 
 is filed by a landlord against his tenant to set aside the 
 lease, on the ground that the tenant had broken a cove- 
 nant to insure or to repair, — the defendant may demur 
 in either of these cases, and the demurrer would be, in 
 effect, to the jurisdiction, because the principle of such 
 a demurrer is, that the court of chancery is not the court 
 to try penal questions, or questions of forfeiture.* 
 
 1 Watson V. Sutherland, 5 Wall. 74. 
 
 2 Hill V. Babin, 19 How. 278. Lewis v. Cocks, 23 Wall. 466. 
 Sullivan v. Portland Railroad Co., 94 U. S. 806. And the same 
 rule obtains in some of the States. 
 
 « Drewiy Eq. PI. 36. 
 * Drewry Eq. PI. 37. 
 
62 PKINCIPLES OF EQUITY PLEADING. 
 
 A demurrer will also lie to tlie jurisdiction, if it 
 appears on the bill that the subject-matter is not within 
 the jurisdiction, and that the case is one in which the 
 defendant is only liable in respect of the subject-matter, 
 if it is within the jurisdiction. Thus, if an Englishman 
 dies in an English colony, which has its own separate 
 jurisdiction, and there leaves personal property, and a 
 local administrator is constituted, and collects the estate 
 and then comes to England; if the English adminis- 
 trator filed a bill for an account of the assets, alleging 
 that the assets were in the colony, the bill would be 
 demurrable, because the court has only jurisdiction in 
 such a case over the foreign administrator if he is here 
 ivith the assets. But if the bill alleges that he had 
 brought the assets with him, and had them within the 
 jurisdiction, it is not demurrable.^ 
 
 The most usual grounds of demurrer are the want of 
 general equity, arising on the facts, or out of the sub- 
 ject-matter of the complaint, whatever it may be ; and 
 the determination in any case of that class, whether a 
 demurrer will lie, is, in effect, the determination of a 
 question of law. So that to know when a demurrer 
 will lie, the student must make himself master of the 
 law of courts of equity. The selection of a few of the 
 cases in which a demurrer will lie on the merits will 
 not, however, be useless. 
 
 It is a rule of the court that it will never make a 
 decree that it cannot carry into effect. Therefore, a 
 frequent cause of demurrer in suits for specific per- 
 formance is, that the agreement is one that the court 
 
 1 Hervey v. Fitzpatriok, Kay, 421. 
 
DEMURRERS. 63 
 
 has no power to see performed. If, for instance, A. 
 agrees to buy B.'s patent, partly for a valuable con- 
 sideration, and partly in consideration that B. will 
 serve him for a term, and use his utmost skill for carry- 
 ing the invention into effect, or words of a similar char- 
 acter, a demurrer would lie, because the court, if it 
 made a decree that B. should use his utmost skUl, has 
 no means of ascertaining what that skill is, and no 
 means of compelling him, by its process of contempt, to 
 use it ; and the court will not stultify itself by making 
 a decree that it has no practical power to enforce. ^ 
 
 So if a bill is filed to enforce an agreement, one term 
 of which was that as to some particular branch of it 
 the parties would leave it to be determined by arbitra- 
 tors to be named, a demurrer will lie, because the court 
 has no power to force the parties to agree on arbitra- 
 tors ; and if it had, could not compel the arbitrators to 
 arbitrate, so that if it made a decree it could not enforce 
 execution of it. 
 
 A bill seeking to restrain a raiboad company from 
 executing given works, and showing on the face of it 
 that by the act incorporating the company it had 
 powers to execute those works, is demurrable; and, 
 accordingly, cases arising on the parliamentary powers 
 of railways companies are sometimes conveniently tried 
 by a demurrer, raising on the charges of the bill itself 
 the question of construction of the act of Parlia- 
 ment. 
 
 It will be borne in mind, in considering the question 
 of demurrers to the equity, that, as already stated, a 
 
 1 Drewry Eq. PI. 38. 
 
64 PRINCIPLES OF EQUITY PLEADING. 
 
 bill must allege every material link of the chain on 
 which its equity rests ; if it omits any matter or fact, 
 the absence of which, if such matter or fact really did 
 not exist, would destroy the plaintiff's equity, the bill is 
 demurrable, because the rule is to take everything in the 
 strongest manner against the pleader ; in other words, 
 to assume that if he does not state any material matter, 
 that matter has no existence.' 
 
 Therefore, if a bill by a patentee, to restrain infringe- 
 ment of his patent and for an account, were to omit 
 stating that he had duly filed a specification pursuant 
 to the terms of the letters-patent, the bill would be 
 demurrable ; the filing a specification being an ingre- 
 dient to complete his title, and the court would not 
 presume that he had filed a specification if it was not 
 alleged to have been done.^ 
 
 So if, in a case of copyright, the plaintiff claiming 
 copyright in articles furnished to a periodical were to 
 omit any of the circumstances required by the statute 
 for giving such species of copyright, the bill would be 
 demurrable, though he might have alleged every other 
 material link of the chain of his title. And where the 
 plaintiff so alleged his title, that thoiigh it was consist- 
 ent with his allegation that he was the person entitled, 
 yet his allegation did not exclude the possibility of some 
 
 1 The rule is that every ambiguous statement must he taken in the 
 sense most adverse to the pleader. As a matter of construction of an 
 amhiguous Clause, the court is hound to adopt that interpretation 
 which is least favorable to the plaintiff; but the defendant is not 
 entitled to press this principle into his service so far as to draw any 
 inferences of fact he pleases which may happen to be not inconsistent 
 with the averments in the bill. Simpson v. Fogo, 1 Johns. & Hem. 18. 
 
 2 Drewry Eq. PI. 39, 40. 
 
DEMURRERS. 65 
 
 other person being entitled instead of the plaintiff, the 
 bill was held demurrable.' 
 
 A biU may also be open to demurrer, if it shows on 
 the face of it that the Statute of Limitations, the Stat- 
 ute of Frauds, or any other statute,^ either bars the right 
 or the remedy of the plaintiff in equity. It appears to 
 have been at times doubted in the profession whether 
 the Statute of Limitations could be set up by way of 
 demurrer, or whether the objection must not be taken 
 by plea. But it is now clearly and conclusively settled, 
 that an objection arising out of any statute is as much 
 matter of demurrer as any other matter of law. So that, 
 if on the facts alleged by the bill it appears that an 
 existing statute bars the plaintiff either of his right or 
 of his remedy, the objection may be taken by demurrer 
 as well as by plea. But if the bill does not show affir- 
 matively that the case is not within the statute, such 
 defence must be pleaded, and cannot be taken by de- 
 murrer.3 
 
 A bill may also be demurrable if it shows on the face 
 of it that the claim of the plaintiff is one inconsistent 
 with public policy. For instance, if a bHl were filed to 
 set aside a deed of conveyance, showing on the face of 
 it that the deed was given by the plaintiff fraudulently 
 
 1 Bothomley v. Squire, 3 Drew. 517. 
 
 2 If the allegations of a bill in equity to enforce an express trust 
 concerning lands clearly imply that the declaration of trust was not 
 in writing, it may be availed by demun-er. Campbell v. Brown, 129 
 Mass. 23. 
 
 2 Beckwith v. Young, 4 Drew. 1, 3. Wood v. Midgley, 5 De G. M. 
 & G. 41. Heys v. Astley, 4 De G. J. & S. 34. Catling v. King, 
 5 Ch, D.. 660. Randall v. Howard, 2 Black, 585. Walker v. Locke, 
 5 Cush. 90. Slack v. Black, 109 Mass. 496. 
 
 5 
 
66 PEINCIPLES OF EQUITY PLEADING. 
 
 to qualify a member of Parliament, or to qualify any 
 person fraudulently, in contravention of tlie policy of 
 the old Game Laws. So, if a bill were filed by an au- 
 thor, to restrain infringement of his copyright, and on 
 the bill itself it appeared that the book was blasphemous, 
 there can be little doubt that a demurrer would lie ; or 
 if a bill were filed to obtain any relief in respect of a 
 marriage brocage bond, and showing the illegal nature 
 of the consideration on the face of the bill, it would be 
 demurrable. 
 
 On the other hand, if a bill were filed to obtain 
 equitable relief by setting aside an instrument in itself 
 illegal, the bill must state that the illegality does not 
 appear on the face of the deed itself, but by evidence 
 dehors the deed; for, if the illegality appears on the 
 face of the deed itself, no remedy upon it could be 
 obtained at law, and the intervention of equity is need- 
 less. This kind of case is properly a case of demurrer 
 to the jurisdiction.^ 
 
 The practical instances that have been selected out 
 of an almost infinite variety, will be sufficient to explain 
 and support the rule before stated, — that any matter 
 apparent on the bill itself, showing that the plaintiff has 
 no title, in the sense of no estate ; or no title to sue, in 
 the sense of no equity ; or no title to sue the particular 
 defendant ; or, generally, that for any reason of law or 
 fact he has no locus standi in equity, — is ground for a 
 demurrer to the whole biU. 
 
 It must also be observed, before parting with general 
 demurrers to the equity, that a demurrer may go to 
 1 Drewry Eq. PI. 43, 44. 
 
DEMURRERS. 67 
 
 destroy the vei'y root of the equity, so that it is not possi- 
 ble for the plaintiff to amend his equity (as where the 
 bni rests on an agreement impossible to be performed) ; 
 or it may go only to the form in which the plaintiff has 
 alleged his equity, as in the case where he has omitted 
 some link in his chain of title. In the first case, a de- 
 murrer is useful, because, if allowed, it puts an end at 
 once and wholly to the suit. In the other case, there is 
 but little substantial use in demurring; because the 
 court will always give leave to the plaintiff to amend 
 his bUl, so as to allege his equity sufficiently. And 
 it may be added, as a matter of the unwritten law of 
 the court, that at this day the courts are averse to the 
 defence by demurrer, and are astute to overrule de- 
 murrers.^ 
 
 It will be collected also from the foregoing observa- 
 tions, that in most cases a demurrer is only a dilatory, 
 and that (except in the cases where it goes to the whole 
 foundation of the equity and terminates the cause) 
 nothing is in general obtained by its use beyond the 
 infliction of costs upon the plaintiff. 
 
 As a pure dilatory, it is sometimes resorted to where 
 account and payment of vast sums of money are re- 
 quired against the defendant, as in suits by contractors 
 against railway companies. But against that use of a 
 demurrer the pleader should be guarded, as rather an 
 abuse than a legitimate use of the pleadings of the 
 court. 
 
 A demurrer is also sometimes useful in a case of con- 
 siderable doubt and magnitude, for the purpose of ob- 
 
 1 Drewry Eq. PI. iS. 
 
68 PEINCIPLES OF EQUITY PLEADING. 
 
 taining at moderate expense that extent of preliminary 
 argument and decision which shows the nature and 
 strength of the plaintiff's case.^ 
 
 Demurrers for Want of Parties.^ 
 
 A bill may also be demurrable for want of parties ; 
 that is,' on the ground that on the face of the bill itself 
 it appears that persons, or classes, who are necessary 
 parties, are not made parties. 
 
 The principle on which a demurrer of this kind is 
 disposed of is the same as that affecting a general de- 
 murrer for want of equity ; viz. that if the cause were 
 being heard on the bill, assuming all its allegations to 
 be proved, the court would have to determine that it 
 could not make a decree ; not on the ground of want 
 of equity, or for any other defect of substance apparent, 
 but because all the persons interested in determining 
 what decree should be made are not before the court. 
 The principle on which the court of chancery hears 
 and determines a cause being, that it must have the 
 whole subject-matter of litigation, and all who are in- 
 terested in its complete determination, before it ; other- 
 wise the court will not make a decree. 
 
 A demurrer for want of parties must, like a general 
 demurrer, be confined to the suggestion of -defects 
 apparent on the bill itself ; but it must also suggest 
 who are the necessary parties. It need not always name 
 the specific persons requisite, as to do that would, in 
 
 1 Drewry Eq. PI. 45, 46. 
 
 ^ The remainder of this chapter is printed from Drewry Eq. PI. pp. 
 46 et seq. 
 
DEMUEEEES. 69 
 
 fact, be, in most cases, beyond the power of a defendant. 
 But it must point out what class or description of per- 
 sons ought to be parties. Thus, for iastance, if a bill 
 were filed by the next of kin of a testator against his 
 personal representatives and residuary legatees, claiming 
 under an alleged intestacy; and if it appeared on the 
 bill itself that some of the next of kin were dead, and 
 there was no personal representative of the deceased 
 next of kin made a party, the bill would be demur- 
 rable, unless it appeared on the face of the bill that 
 the plaintiffs were suiag on behalf of themselves and 
 all others the next of kin, — a mode of suing termed 
 suing by "representation," which will be hereafter 
 discussed. The demurrer would not, as observed, 
 be required to point out the necessary persons no- 
 minatim; but would suggest that the personal rep- 
 resentatives of the deceased next of kin ought to be 
 parties. So, if a plaintiff filed his bill for carrying the 
 trusts of a will into execution, alleging himself to be a 
 cestui que trust, and alleging that there were other ces- 
 tuis que trust having an interest different from his, 
 and not making them parties, or not making all the 
 trustees parties, the bill would be demurrable, and the 
 demurrer would submit that the other cestuis que trust, 
 or the other trustees, should be made parties. 
 
 To determine when a demurrer will lie for want of 
 parties involves the learning of who are the proper 
 parties to suits of all kinds ; and it will be convenient, 
 in this place, to consider the principles on which ques- 
 tions of parties are to be determined.^ 
 
 1 In a work of this limited extent it is impossible to discuss more 
 than principles. To enter into all the special applications and excep- 
 
70 PRINCIPLES OF EQUITY PLEADING. 
 
 It has been observed that, generally, the principle on 
 which the court of chancery exercises its jurisdiction 
 is, that it will not make a decree unless it can dispose 
 of the whole matter before it, and bind the rights of 
 all persons interested in the subject-matter of the suit. 
 From this principle (subject to the exceptions to its 
 application founded on convenience) flow the rules as 
 to parties ; and it will be convenient, in discussing the 
 doctrine of parties, to do so with reference to the dif- 
 ferent classes of suits of the most usual and frequent 
 occurrence. And first, of suits of the kind generally 
 designated as administration suits. 
 
 Under this head are included suits by creditors, for 
 the administration of the estates of deceased persons, 
 seeking payment of the debts of the deceased; and 
 suits either by the personal representatives, or by the 
 persons beneficially interested in the estates of deceased 
 persons, for their administration, seeking the due ad- 
 ministration by payment of debts, and subject thereto, 
 the division of the estate among the parties beneficially 
 entitled, according to their several rights. 
 
 Suits against trustees, either of wills or of deeds, for 
 an account of their trusteeship, and for the administra- 
 tion or execution of the trusts under the direction of the 
 court, are also in the nature of administration suits. 
 
 A peculiar feature of this whole class of suits is, that 
 they almost always involve the taking of accounts, be- 
 fore any questions of law arising in them can be finally 
 
 tions that are to be met with in practice would require several volumes ; 
 and, after all, the authorities themselves must be consulted in every 
 special case. / 
 
 \ 
 
DEMUEEERS. 71 
 
 determined ; and the first, or, as it is sometimes called, 
 the preliminary decree, is merely for accounts and in- 
 quiries, leaving the determination of the material legal 
 questions to be disposed of at what is termed the hear- 
 ing " on further consideration ; " that is, the hearing of 
 the cause after the court is informed, by means of the 
 accounts and inquiries, what are the precise funds to 
 be disposed of ; what has been done with funds that 
 have existed, but no longer exist; and who are the 
 persons claiming to be recipients of the different por- 
 tions of the estate. 
 
 The safest general rule for arriving at the conclusion 
 who are necessary parties to a suit is to consider what 
 is the decree that is asked; and, generally, every person 
 who would be affected by, that is, be acted upon by, 
 or have to act under, that decree has a right to be a 
 party, that he may be present at the making of the 
 decree so affecting him. 
 
 By way of illustrating and proving this proposition, 
 I will shortly analyze a few decided cases. 
 
 A person who has not otherwise accepted a trust 
 than by executing a deed appointing him a new trustee, 
 but has never acted, is not a necessary party to a suit 
 against trustees for a breach of trust.' The reason is, 
 that he is not interested in the decree. If he has only 
 been appointed a trustee, no estate is vested in him, 
 therefore there is nothing for him to do under the de- 
 cree or in aid of it; and if he has not acted, he has not 
 completely accepted the trusts, and therefore is not lia- 
 ble, so that no decree could be made against him. 
 
 1 Wilkinson v. Parry, 4 Kuas. 274. 
 
72 PRINCIPLES OF EQUITY PLEADING. 
 
 The heir of a mortgagee, to whom the legal estate in 
 the mortgaged premises has descended, is a necessary 
 party to a bill of foreclosure, filed by the executors of 
 the mortgagee ; i because, the legal estate being in the 
 heir, the mortgagor has a right to have him before the 
 court to reconvey, if the mortgagor should redeem. 
 
 But a second mortgagee may sustain a bill of fore- 
 closure against the mortgagor and the siibsequent mort- 
 gagees, without making the first mortgagee a party ; 
 because the decree would be only to bar the title of 
 the mortgagor and of the puisne mortgagees, that is, of 
 the owners of the equity of redemption, and would 
 not touch the legal title of the first mortgagee.^ 
 
 I. In suits hy creditors, seeking the administration 
 of personal estate only, the necessary parties are the 
 creditors, as plaintiffs ; and, as defendants, the personal 
 representatives of the deceased. No other persons are 
 necessary parties, for this reason, that, until the credit- 
 ors are satisfied, no persons claiming as volunteers (that 
 is, legatees or next of kin) have any interest; for as 
 the decree in a creditor's suit merely deals with the 
 estate so far as is necessary to provide for the claims of 
 creditors, leaving the residue, after satisfying creditors, 
 in the hands of the legal owners, no persons but the 
 representatives of the deceased, who are such legal own- 
 ers of the estate, have any interest in the decree. 
 
 It has been stated that the necessary parties, as plain- 
 tiffs, are the creditors ; but here the rule of convenience 
 modifies the strict rule of pleading, and interposes this 
 
 1 Scott v. Mcholl, 3 Kuss. 476. 
 ' Eicliards v. Cooper, 5 Beav. 304. 
 
DEMURRERS. 73 
 
 exception, that one creditor may represent the others, 
 and sue on hthalf of himself and all other creditors, who 
 shall come in and take part in the costs of tlu suit ; and 
 the decree, although made at the suit of one creditor, 
 is, in effect, a judgment for the benefit of all who come 
 in and prove their debts under it. 
 
 II. In a suit for the administration of a deceased per- 
 son's estate, whether by the beneficiaries against the 
 representatives of the deceased, or by the representa- 
 tives, making the beneficiaries defendants, the neces- 
 sary parties in general are the representatives, and either 
 all the persons beneficially interested in the administra- 
 tion of the estate, or some of every class beneficially 
 interested, except mere pecuniary legatees, who are in 
 general sufficiently represented by the personal repre- 
 sentatives of the deceased. 
 
 Thus, if a suit were instituted for the administration 
 of an estate under a will giving legacies, and then cer- 
 tain bequests on trust, say to A. for life, with remainder 
 to A.'s children, with vested remainders over, and then 
 containing a gift of the residue, the tenant for hfe, and 
 both classes of tenants in remainder of the bequests on 
 trust, and aU the residuary legatees, would be necessary 
 parties, personally or by representation ; because all of 
 those persons may be affected by the nature and form of 
 the decree. So, if a bill were filed for the administra- 
 tion of an estate under a will containing a residuary 
 clause, but not clearly disposing of some portions of 
 property, so as to raise a question whether those por- 
 tions fell into the residue or passed as by intestacy, then 
 the next of kin would be necessary parties. But if a 
 
74 PRINCIPLES OF EQUITY PLEADING. 
 
 bill were simply by residuary legatees, under a will of 
 personalty only, giving mere pecuniary legacies and a 
 clear residuary bequest, then only the residuary legatees 
 and the personal representatives would be necessary 
 parties ; because the personal representatives would rep- 
 resent legatees and creditors, and the next of kin would 
 be wholly uninterested in. the decree. 
 
 In fact, as already observed, to ascertain who are 
 necessary parties to au administration suit, it must 
 always be considered who is affected by the decree 
 to be made, or, in other words, who has an interest in 
 a particular form of decree ; bearing in mind that the 
 personal representatives represent creditors and mere 
 pecuniary legatees, because they represent the fund, 
 and are bound to defend it for creditors and legatees. 
 
 This principle is again illustrated by the practice as 
 to a suit by a mere pecuniary or specific legatee, as dis- 
 tinguished from one by a residuary legatee. 
 
 A pecuniary legatee may file a bill for his own legacy 
 against the personal representative alone, without mak- 
 ing the residuary legatees or any other pecuniary lega- 
 tees parties ; for this reason, the decree would be only 
 for payment of the legacy, and as the residuary lega- 
 tees are only entitled after payment of the legatees, it 
 would not touch their interests ; and the other pecuni- 
 ary legatees are not necessary parties in person, because 
 the personal representative represents them. But a bill 
 by a residuary legatee, for his share, must make the 
 other residuary legatees parties, because the decree dis- 
 poses of or affects the residue, in which they have aU 
 an interest. 
 
DEMURRERS. 75 
 
 III. In suits between partners (including therein suits 
 between the members of companies), the general rule is 
 the same as in other cases, that all the persons interested 
 in the decree, and therefore, in general, aU the members 
 of the partnership, are necessary parties. 
 
 Thus, if a bill is filed by one of four partners for 
 a dissolution and account, or for an account after disso- 
 lution, all the other partners must be defendants. So, 
 to a suit for obtaining relief agaiust the assets of a de- 
 ceased partner, the surviving partners must be parties ; 
 because, although an ultimate decree for payment is not 
 sought against them, they are interested under the de- 
 cree for an account, inasmuch as they are interested in 
 taking the account of the joint debt. 
 
 So, in strictness, if a bill is filed by one or more 
 members of a joint-stock company, incorporated or not 
 incorporated, every member of the company is a requi- 
 site party, either as plaintiff or defendant ; and if the 
 bill seeks a general account, the rule must be strictly 
 complied with. But if the bill does not seek a general 
 account, or such species of relief as makes it necessary 
 to examine into the particular acts and liabilities of eacJi 
 shareholder, then, by reason of the impossibility of a suit 
 comprising perhaps one or more hundreds of persons 
 being ever conducted to a conclusion, an exceptional 
 rule has arisen, by which some are permitted to sue as 
 representing the rest. Therefore, if a member of a joint- 
 stock company complains of an act of the directors, 
 which act (if the plaintiff is right) all the other share- 
 holders are equally interested in setting aside, one 
 shareholder may file against the directors a bill on be- 
 
76 PEINCIPLES OF EQUITY PLEADING. 
 
 half of himself and, all otlur the sharelwlders except the 
 defendants. This is technically called making parties 6y 
 representation, and the practice rather recognizes than 
 abrogates the general rule. 
 
 There is considerable difficulty sometimes in determin- 
 ing when shareholders in a company must be made 
 parties by representation, and when they must all ac- 
 tually be on the record. The principle is, however, this, 
 that if the nature of the decree sought is such that the 
 court cannot make it without ascertauiing the separate 
 rights and liabilities of each shareholder, then they must 
 be all personally parties. 
 
 Of this nature is a suit for a dissolution and general 
 account ; because the court cannot make and carry out 
 a decree for a dissolution and general account, without 
 inquiring into the acts, rights, and liabilities of evert/ 
 shareholder respectively. 
 
 But if the decree asked is one requiring the determi- 
 nation of a right common to a class or to classes of 
 shareholders, then that class or those classes may be 
 made parties by representation. Therefore, if a bill 
 were filed for the purpose of recovering from directors 
 certain payments made by particular shareholders, or by 
 a class of shareholders, the shareholders claiming such 
 payment might appear by representation ; because the 
 account then is not of all the transactions of each share- 
 holder, but of specific sums to be paid in specific amounts 
 or proportions. On the same ground it is that a bUl 
 may be sustained by one shareholder on behalf of him- 
 self and others, against trustees or directors of a com- 
 pany, alleging an illegal act by those parties affecting 
 
DEMUKREES. 77 
 
 the shareholders represented, in the same manner as 
 they affect the actual party to the record. But still 
 in suits so constituted the general rule must be ob- 
 served, that all parties interested must be actually par- 
 ties, or represented. 
 
 Therefore a bill against directors, by a shareholder, 
 stating himself to sue on behalf of all other share- 
 holders, except a class, would be demurrable, if the 
 excepted class were not on the record as defendants. 
 
 We have been hitherto speaking of plaintiffs by 
 representation ; whether parties may be made defend- 
 ants by representation is a somewhat doubted question. 
 That is, for instance, whether a bill could be sustained 
 by a shareholder on behalf of himself and all others, 
 except the defendants against A. B. and C. D., directors, 
 as defendants on behalf of themselves and the other 
 directors. I am not aware of the point having been 
 precisely determined, though there are dicta to the 
 effect that a bill might be so framed. Such a bill 
 would, however, be at present rather experunental. 
 
 The principle of representation as to parties applies 
 much more extensively than merely to suits between 
 the members of gigantic partnerships. 
 
 It applies generally to cases where there is one com- 
 mon interest vested in a class too numerous to allow of 
 the members of it being practically brought individu- 
 ally before the court. Thus holders of pews, having 
 a common interest as such against the trustees of a 
 church, may sue by some of them on behalf of them- 
 selves and all the others. 
 
 On the same principle, in an administration suit, if 
 
78 PRINCIPLES OF EQUITY PLEADING. 
 
 the object is not to distribute a residue, but to deter- 
 mine a question arising between next of kin as a class, 
 and the residuary legatee, some of the next of kin only 
 are sufficient parties. And it is every day's practice, 
 when it appears on the hearing of a cause, that a class 
 not before the court may have an interest to let the 
 cause stand over for some of that class to appear, and 
 to make a decree on the appearance of some of them as 
 representing the class. 
 
 IV. To suits for specific performance, generally it is 
 said that only the parties to the contract are the proper 
 parties; but it would be perhaps more correct to say 
 that the parties entitled to the benefit of the contract are 
 the only necessary parties. For it seems clear that if 
 A. contracts with B. to sell him something, and then 
 A. parts with his interest, legal and equitable, wholly 
 to C, C. would be the person to file a bill for specific 
 performance, and not A. Or if A., instead of seUing 
 his interest wholly, parts with a portion of it to C, 
 retaining himself some interest. A., C. and B. would 
 be necessary parties. Thus, where A. had contracted 
 with B. to purchase B.'s patent, and it appeared that 
 A. had sold the benefit of his contract to C, an objec- 
 tion that C. was not a party was allowed.^ 
 
 But it is apprehended that it would be different 
 where the def errant has parted with his interest ; and 
 that there the plaintiff might sue him or his assignee, 
 or both jointly ; and this on a principle of law, viz. 
 that though a party may part with his interest, he 
 cannot get rid of his liability. Therefore, though a 
 
 1 Farebrother v. Arkell, V. C. Wood, 16th March, 1857. 
 
DEMURKEES. 79 
 
 plaintiff may not be the party to sue when he has no 
 interest, because he has no title left, a defendant can- 
 not, by parting with his interest, refuse either to perforin 
 his contract, or to procure it to be performed. 
 
 It seems, however, that in practice, when a defendant 
 has assigned his interest, both he and his assignee 
 should be parties; and there appears good reason for 
 this, at least when the defendant is the vendor ; for if 
 the assignor has really no interest left in him, it is 
 difficult to see how a decree against him that he should 
 convey could be enforced.^ 
 
 V. Suits between mortgagors and mortgagees. 
 
 These are of three kinds : — 
 
 1. Foreclosure suits; when a mortgagee, not being 
 paid, seeks to foreclose; that is, to obtain a decree, 
 that, in default of payment, the estate shall be declared 
 absolutely his. 
 
 2. Bedemftion suits, in which the mortgagor seeks to 
 redeem his estate, on paying what shall be found due 
 on an account taken by the court, of principal and 
 interest. 
 
 3. Suits for ascertaining the priorities of several 
 mortgagees, or other incumbrances, on one estate 
 These last are in the nature of foreclosure suits, being 
 suits for the sale of the mortgaged estate, and payment 
 out of the proceeds, of the debts, interest and costs of 
 the several mortgagees, in the order of their priorities. 
 
 1 The authorities on parties to a specific performance suit, where 
 there has been assignment of the interest of either party, are in rather 
 a confused state, and present some iine and not very intelligible dis- 
 tinctions. The statements made in the text must be understood to be 
 only of the general rule. 
 
80 PRINCIPLES OF EQUITY PLEADING. 
 
 To the first class, the necessary parties are, the 
 mortgagee or his assignee; and the mortgagor or his 
 assignee. ISTo other persons are, in general, necessary 
 parties. Of course, by the assignees of the mortgagor 
 or mortgagee are also meant their respective representa- 
 tives, if they are dead ; that is, their heirs or devisees 
 and personal representatives. 
 
 In this, as m other suits, who are the necessary 
 parties is best ascertained by seeing what is the nature 
 of the decree. A foreclosure decree directs an account 
 of what is due, and that if the mortgagor (or, if he is 
 dead, his executors) do not pay the principal, interest 
 and costs, within a given time, to the mortgagee (or his 
 personal representatives, if he is dead), the mortgagor 
 (or his real representatives) shall stand foreclosed, and 
 the estate be absolutely the estate of the mortgagee or 
 his real representatives. The personal representatives 
 of both mortgagor and mortgagee are necessary parties, 
 because the one has to pay and the other to receive the 
 money, and both are interested in taking the account ; 
 and the heirs or devisees of both parties are also neces- 
 sary parties, — the heir or devisee of the mortgagee,^ for 
 the reason stated in a previous page ; and the heir or 
 devisee of the mortgagor is a necessary party, as he has 
 an iaterest ia resisting, and a right to redeem if he 
 chooses. 
 
 The decree in a redemption suit is also for an account, 
 and that on payment of the mortgage debt, interest and 
 costs by the mortgagor (or by his personal representa- 
 tives if he is dead), the mortgagee or his heirs shall re- 
 
 1 Ante, p. 72, in Scott v. Ificholl, 3 Russ. 476. 
 
DEMUEEERS. 81 
 
 convey to the mortgagor or his real representatives. 
 The necessary parties, therefore, are here, also, the 
 mortgagor, or, if he is dead, both his real and personal 
 representatives ; and the mortgagee, or, if he is dead, 
 his real and personal representatives. The personal rep- 
 resentatives of both parties, for the same reason as in a 
 foreclosure suit, because they are both interested in 
 taking the account; the real representatives of the 
 mortgagee, because they are the parties to make a 
 reconveyance under the direction of the court ; and the 
 real representatives of the mortgagor, because they are 
 interested in having their estate cleared, and having a 
 proper reconveyance. 
 
 Whatever may be the complication of interests, a 
 consideration of who will be the actors and patients 
 under the decree will point out who are the neces- 
 sary parties. Of course this rule assumes that the 
 pleader is acquainted with the nature and form of 
 the decree proper for each kind of suit ; and, in truth, 
 no one can become a correct pleader unless he has 
 mastered that knowledge, since upon it depends what 
 is proper to be prayed by a bill, and who are to be 
 the parties to it.^ 
 
 Suits for ascertaiaing priorities are suits instituted 
 by some incumbrancers against an incumbered estate ; 
 that is, against the owner of the ultimate equity of 
 redemption, if he be living; or against his real and 
 personal representatives, if he is dead, by one or more 
 
 1 It will be understood, also, that only general rules are here enunci- 
 ated ; most of those general rules are subject to exceptions, or apparent 
 exceptions ; but cases of exception will be better understood and dealt 
 with, if the broad rule or principle is well fixed in the mind. 
 
 6 
 
82 PEINCIPLES OF EQUITY PLEADING. 
 
 incumbrancers seeking to have the estate sold, and to be 
 paid out of it ; and to have for that purpose the priority 
 of the plaintiff declared, as against all or some of the 
 other incumbrancers. It follows that, to such a suit, 
 every person in whom is vested any incumbrance or 
 charge on the estate is in general a necessary J)arty. 
 For instance, suppose A. mortgages real estate to B., 
 and then to C, and then to D. ; and has given judg- 
 ments to E., F. and G. Disputes may exist between 
 these several incumbrancers as to their priorities, arising 
 out of questions of notice, or legal incompleteness of 
 any charge, or the like. They must, therefore, on that 
 ground all be parties to the suit, as well as the ultimate 
 owner, who takes subject to all their incumbrances. 
 Moreover, they are all necessary parties, because every 
 puisne incumbrancer has a right to redeem all prior in- 
 cumbrancers ; that is, by paying them off, to stand in 
 their place : and for that purpose every incumbrancer, 
 down to the last, is a necessary party. 
 
 VI. In suits against trustees, seeking to make them 
 liable for any breach of trust, all the trustees, or, if any 
 of them are dead, the personal representatives of the 
 deceased trustees, must be parties ; because all are inter- 
 ested in a decree which would be against all. 
 
 What has been stated on the subject of parties is 
 sufficient to show, and to elucidate by examples, the 
 principles on which it is to be in general determined, 
 who are proper parties to suits. It would be impossible, 
 in a work of this nature and extent, to go into the mi- 
 nute distinctions which exist in regard to certain spe- 
 cial cases ; and for information of that kind, works 
 
DEMUEKEES. 83 
 
 treating exclusively on parties, and the numerous author- 
 ities, must be consulted.^ 
 
 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 ia bar of another suit.^ And although a 
 plea of a demurrer for want of equity to one bill may 
 be a good plea to another, yet where the plaintiff's title 
 to relief depends, not on the construction of an instru- 
 ment, but on facts and circumstances, if the allegations 
 in the two bUls are different, such a plea cannot be 
 sustained.^ 
 
 It is to be observed that demurrers are inapplicable 
 to pleas, or to answers. If a plea is bad in substance, 
 the course is not to demur to it, but to set it down for 
 argument; and if then found bad, it is at once over- 
 ruled. If an answer is insufficient in its responses to 
 the charges and statements in the bill, objections are to 
 be taken to it by exceptions filed. If it is in substance 
 bad as a defence, and no replication is filed by the 
 plaintiff, the case is set down for hearing upon the bill 
 and answer, and all the facts stated in the answer are to 
 be taken as true, whether responsive to the allegations 
 in the bill or not.* 
 
 1 See Calvert on Parties ; Mr. J. "W. Smith's elaborate and valuable 
 note in his edition of Lord Redesdale's Treatise on Pleading ; and the 
 not less valuable notes in Whitworth's Equity Precedents. 
 
 2 Mitf. PI. 255. 
 
 » Londonderry v. Baker, 3 De G. F. & J. 701. 
 
 * Story Eq. PI. § 456. Perkins v. Nichols, 11 Allen, 542. 
 
84 PKINCIPLES OF EQUITY PLEADING. 
 
 CHAPTEE V. 
 
 PLEAS. 
 
 It is obvious that the defendant may meet the claim 
 of the plaintiff in one of three ways : by admission, by 
 denial, or by pleading some new matter in bar of the 
 relief, or some part of it. In equity there are two 
 forms of defence against the claim, the plea and the 
 answer ; at law there is but one, the plea. The demur- 
 rer, for want of a legal right to relief, is common to 
 both jurisdictions. 
 
 A plea in equity is, in effect, an introduction by the 
 defendant of fresh facts into the case made out by the 
 plaintiff, suflSicient, if proved, to make the action demur- 
 rable. An answer is necessary when the dispute can- 
 not so easily be reduced to a simple question. 
 
 A plea at common law is sometimes a complete, and 
 sometimes only a partial, defence to an action. There 
 are many kinds of plea, the principal divisions being 
 pleas in abatement and pleas in bar. Several pleas may 
 be pleaded together, even if inconsistent with one another. 
 Por instance, an administrator may plead at the same 
 time ne unques administrator, and plene administravit. 
 The object is to put the plaintiff to the proof of his 
 whole case ; and, if the defendant does not succeed upon 
 one plea, he may yet succeed upon another. 
 
PLEAS. 85 
 
 It is a general rule, which obtains both ra law and in 
 equity, that a plea ought not to contain more defences 
 than one. Various facts, therefore, can never be pleaded 
 in one plea, unless they are all conducive to a single 
 point on which the defendant means to rest his defence. 
 It must be one single, certain, material poiat; but it 
 is not necessary that this single point should consist 
 of a single fact, for several connected facts may be 
 necessary to constitute one single complete ground of 
 defence.^ 
 
 It is to be observed, that in pleas in equity there 
 must in general be the same strictness and exactness as 
 in pleas at law ; if not in matters of form, at least in 
 matters of substance.^ 
 
 The learning relating to pleas is the most difficult, 
 and the most useless, in the art of pleading ; as there 
 are now very few cases, indeed, in which a plea is more 
 useful than an answer., "A plea," said an eminent 
 chancery judge,^ " is a very perilous experiment, and is 
 generally unsuccessful." 
 
 The general inutility of pleas will be seen by con- 
 sidering their object and principle, and by referring to 
 the equivalents substituted in modern practice for 
 them. 
 
 The principle of a plea is, that it reduces the cause, or 
 some part of it, to a single point, and thence creates a 
 bar to the suit or to the part of it to which the plea 
 
 1 Rhode Island v. Massachusetts, 14 Peters, 210, 259. Lord v. 
 Tyler, 14 Pick. 164. Stewardson v. White, 3 Harris & M'Henry, 456. 
 Moreton v. Harrison, 1 Bland, 496. 
 
 2 Mitf. PI. 341. Burditt v. Grew, 8 Pick. 108. 
 
 ' Kindersley.V. C. in Mauhy v. Piiohardson, December 17, 1862. 
 
86 PEINCIPLES OF EQUITY PLEADING. 
 
 applies.' A plea, if the only defence, must allege some 
 fact which is an entire bar to the suit or some substan- 
 tive part of it ; and if defective in this respect, whether 
 true or false, the plaintiff should move to set it aside 
 for insufficiency.^ 
 
 If the plaintiff conceives a plea to be defective in 
 point of form or of substance, he inay take the judgment 
 of the court upon its sufficiency. And if the defendant 
 is anxious to have the point determined, he may also 
 take the same proceeding.^ A plea which contains, in 
 substance, sufficient to bar the bill, if replied to and 
 found true in fact, is a bar though defective in form.* 
 If a plea, in the apprehension of the plaintiff, is good 
 in matter, but not true in fact, he may reply to it and pro- 
 ceed to examine witnesses in the same way as in case of 
 a replication to an answer; but such a proceeding is 
 always an admission of the sufficiency of the plea itself, 
 as much so as if it had been set down for argument 
 and allowed ; and if the facts relied on by the plea are 
 proved, a dismission of the bill on the hearing is a 
 matter of course.^ 
 
 It rarely happens that a bill is filed, not being demur- 
 rable, to which the defence can be reduced to a single 
 point. Further, the object of this form of pleading 
 (which took its rise at a period when bills in chancery 
 were of formidable length, and putting in answers en- 
 
 1 Mitf. PI. 219, 295. Kindersley V. C. in Saunders v. Druce, 3 Drew. 
 156. 
 
 2 Newton V. Thayer, 17 Pick. 129. 
 8 Mitf. PI. 353. 
 
 ^ Stead's Executors ■». Course, i Cranch, 403. 
 5 Hughes V. Blake, 6 Wheat. 453. 
 
PLEAS. 87 
 
 tailed heavy expense, and going into evidence was a 
 work of years) was to save the parties the expense of 
 an examination at large. But at this day the reasons 
 for using pleas have almost ceased to have any appli- 
 cation, by reason of the shortness of bUls, the practice 
 of only interrogating to material facts, and the expedi- 
 tion with which evidence is gone into. Further, the 
 modern practice of trying the questions which might be 
 raised by a plea, upon the answer itself, by pleading the 
 matter in bar in the answer, and submitting to the 
 court whether any other answer can be called for, has 
 substituted an equivalent for nearly all the virtue resi- 
 dent in a plea. Lastly, the extreme difficulty of fram- 
 ing a plea, so that it shall be sufficient in point of form, 
 has rendered pleas so unmanageable and so unpopular, 
 that they are shunned by common consent. I shall 
 therefore pass very cursorily over the subject of pleas, as 
 a species of learning which the student may well defer 
 till a much later period of his professional life.* 
 
 1 Drewry Eq. PI. 65. I trust I shall not be understood as meaning 
 to speak flippantly of any branch of reverend learning. But it cannot 
 be too much impressed on students and young pleaders that the temper 
 of the times and, it may be added respectfully, the judicial temper of 
 the courts are in favor of getting as speedily as possible at the sub- 
 stance of a case, and dealing with it on its merits. So that forms of plead- 
 ing, such as pleas and demurrers, which have a tendency to shut out from 
 sight the merits, and if they do not succeed in doing so, are mere dil- 
 atories, are not viewed with favor, and are not often practically use- 
 ful. Neither can it be too much impressed on the public that the 
 result of this temper of the courts, acting honestly in aid of the acts of 
 the Legislature for reforming the procedure of the Court of Chancery, 
 in a great measure by discountenancing pure technicality in pleadings, 
 has rendered that court as expeditious and (considering the magnitude 
 and extent of the questions usually dealt with in chancery causes) as 
 
88 PEINCIPLES OF EQUITY PLEADING. 
 
 A plea is, in effect, a short answer, averring some 
 fact, or instrument, or statute, which meets and destroys 
 the whole substance of the plaintiff's equity. As, for 
 instance, that the plaintiff's claim, however meritorious 
 in itself, is barred by the Statute of Limitations ; or that 
 by a deed or other instrument, such as a release, or by a 
 settled account, the plaintiff has himself put an end to 
 his claim. 
 
 " The office of a plea generally is, not to deny the 
 equity, but to bring forward a fact, which, if true, dis- 
 places it ; not a single averment, but perhaps a series of 
 circumstances, forming in their combined result some 
 one fact, which displaces the equity." ^ 
 
 A plea must distinctly aver the matter that is to dis- 
 place the equity of the plaintiff, and also negative any 
 matter alleged by the bill which would be an answer to 
 the bar set up by the plea. And in drawing a plea, 
 some of the difficulty will be removed by bearing in 
 mind the principle on which it is heard and determined, 
 which is this, that the plea is taken to be true, and 
 that so taking it the court must find in it a complete 
 answer to the claim of the plaintiff. So that if there is 
 any matter alleged by or fairly to be inferred from the 
 bni, which would rebut the effect of the statute or fact 
 or instrument pleaded, and such matter is not denied by 
 the plea, it is bad.^ 
 
 Tor instance, suppose the Statute of Limitations to be 
 
 cheap a tribunal, as it was formerly dilatory and expensiye. — Note by 
 Mr. Drewry. 
 
 1 Lord Eldon in Rowe v. Teed, 15 Ves. 377, 378. 
 
 2 Drewry Eq. PI. 66. 
 
PLEAS. 89 
 
 the ground of plea against a claim for an equitable debt, 
 the plea must aver that the debt was contracted more 
 than six years before the. institution of the suit. But 
 if the bill alleged, or it could be fairly inferred from its 
 allegations, that the defendant had recognized the debt, 
 he must go on to aver that he had never recognized it. 
 So, if a plea to a bill for specific performance of an 
 agreement respecting land, not in writing, were the 
 Statute of Frauds, and if from the bill it could be in- 
 ferred that there had been part performance, the plea 
 must not merely plead the statute, and aver that the 
 agreement was not in writing, but must deny that the 
 contract had been in any manner part performed; for, 
 if it had been part performed, the statute is a bar. 
 
 It has been observed that a plea must bring the suit 
 to one point, or, in other words, it must tender only one 
 substantial issue. But it may, and often must, allege 
 several fads in support of that issue. For instance, a 
 plea of a settled account, and also of the Statute of Lim- 
 itations, would be a bad plea, as being what is called a 
 double plea. But a plea of the Statute of Limitations, or 
 of a settled account, may, as we have seen, be supported 
 by the averment of several facts ; namely, all those facts 
 which are necessary to show that the statute or the 
 account is a bar. 
 
 So, if the defence to a bill by an incumbrancer on an 
 estate were, that the defendant was a purchaser without 
 notice, the plea must aver title in the defendant's 
 vendor, and a conveyance to him, the defendant, and 
 payment of the consideration ; and it must deny notice 
 of the plaintiff's claim at the time of the payment of the 
 purchase-money, and of the conveyance. 
 
90 PRINCIPLES OF EQUITY PLEADING. 
 
 A bill alleged that the defenda,nt agreed to do an act, 
 namely, to sign the acceptance of shares, and asked that 
 he might be decreed to perform that agreement. The 
 defence set up by the plea was that the defendant never 
 did perform the act that the plaintiffs sought to make 
 him perform. The plea did not allege any specific fact 
 or matter not stated by the bill, — some new fact which, 
 if proved, would entirely displace the equity of the bill ; 
 but it stated a fact which was stated or assumed by the 
 bill, and which was the very ground of the complaint 
 made by the bill. Kindersley, V. C. : " It is just the 
 same thing as if, to a bill filed for specific performance 
 of an agreement to execute a lease, the defendant should 
 plead, ' I never did execute it.' The office of a plea is not 
 to deny the equity, but to bring forward a fact which, if 
 true, displaces it." ^ The plea was held to be bad ia 
 form, as it raised no fact not raised by the biU.^ 
 
 It has been stated that not merely matter specifically 
 alleged by the bill, but matter which can be fairly in- 
 ferred from it, being an answer to the bar set up by 
 the plea, must be negatived. For, on a plea, every- 
 thing will be taken most strongly against the plea ; and, 
 therefore, as observed by Lord Eedesdale, averments 
 are necessary to exclude intendments, which would 
 otherwise be made against the pleader.^ Also, all those 
 facts which are necessary ingredients in rendering the 
 particular matter pleaded a bar, must be averred; for 
 if the plea does not aver them, it sets up a bar not 
 shown to be complete. 
 
 1 Eowe V. Teed, 15 Ves. 377. 
 
 * New Brunswick Co. v. Muggeridge, 4 Drew. 686. 
 
 8 Mitf. PI. 298. 
 
PLEAS. 91 
 
 A plea is nothing more than a special answer to the 
 bill, setting forth and relying upon some one fact, or a 
 number of facts, tending to one point, sufficient to bar, 
 delay or dismiss the suit; its office is to reduce the 
 cause, or some part of it, to a single point, and thus to 
 prevent the expense and trouble of an examination at 
 large. It is true that all facts essential to render the 
 plea a complete defence to the bill, so far as the plea 
 extends, must be averred in it, or it will be no defence 
 at all. But there is no instance, where the plea con- 
 tains in itself a full defence to the bill, that an answer 
 is necessary, unless it is rendered so in order to negative 
 some equitable ground stated in the bill for avoiding 
 the effect of the anticipated bar ; as where fraud, com- 
 bination, facts intended to avoid the force of the Statute 
 of Frauds, or to bring the plaintiff within some of the 
 exceptions to the Statute of Limitations, as the one or 
 the other of these defences may be expected; and in 
 those and similar cases the defendant is bound, not 
 only to deny those charges in his plea, but to support 
 his plea by an answer, also denying them fully and 
 clearly.^ 
 
 In modem practice,- if no interrogatories are filed, the 
 defendant need only aver the facts necessary to render 
 the plea a complete equitable bar to the case made by 
 the bill, and need not put in an answer in support of 
 his plea.2 
 
 1 Cooper Eq. PI. 227, 228. Hare on DiscoTery, 36, 37, 1st ed. 
 Sims V. Lyle, i Wash. C. C. 303, 304. 
 
 2 Dawson v. Pilling, 17 L. J. Ch. 394. Webster v. "Webster, 1 Sm. 
 & G. 489. 
 
92 PEINCIPLES OF EQUITY PLEADING. 
 
 But if interrogatories are filed, the plea must be sup- 
 ported by an answer to the matters as to which the de- 
 fendant is interrogated, and which, if admitted, might 
 tend or be evidence to iavahdate the plea.^ 
 
 If the bni admits the existence of a legal bar, but 
 alleges some equitable circumstances to avoid its effect, 
 and interrogates as to those circumstances, it is not 
 enough for the defendant to plead the legal bar; he 
 must accompany his plea with a distinct answer and 
 discovery as to every circumstance as to which he is in- 
 terrogated, the admission of which may tend to iavali- 
 date the plea. In cases of this class the bUl admits the 
 existence of a fact which, if taken alone, would be con- 
 clusive against the plaintiff, and then proceeds to state 
 specific grounds why it should not have that effect ; and 
 the defendant, if interrogated, must answer the interrog- 
 atories as to these specific grounds.^ 
 
 Where, for example, the defendant pleads the Statute 
 of Limitations in bar to the whole biU, his answer in 
 support of the plea must meet all the charges in the 
 bni which allege a new promise, but not the original 
 cause of action. Where a new promise or an acknowl- 
 edgment of an existing debt is charged in a bill, to avoid 
 the operation of the statute the defendant is bound to 
 deny the promise or acknowledgment charged, by aver- 
 ment in the plea, and also by answer in support of the 
 plea. And this is necessary, because, upon argument of 
 a plea, every fact stated in the bill and not denied by 
 
 1 Hunt V. Penrioe, 17 Beav. 531. Young v. White, 17 Beav. 532. 
 Hinde v. Skelton, 2 H. & M. 690. 
 
 2 KeiT on Discovery, 187, 188. 
 
PLEAS. 93 
 
 answer in support of the plea must be taken to be true. 
 But the defendant is not bound to answer to the original 
 cause, because that may well be admitted consistently 
 with the bar pleaded; and the intent of the plea is 
 to rest the defence on a single point, which may bar the 
 whole demand, without going into an answer as to the 
 rest of the biU.^ 
 
 To test the sufficiency of an answer in support of 
 a plea, every allegation in the bill, not denied by the 
 answer, must be taken as true ; and then, the plea hav- 
 ing been set down for hearing, the mquiry is, whether 
 upon that state of facts the plea affords a bar.^ 
 
 An answer in support of a plea is no part of the de- 
 fence. The defence is the matter set up by the plea; 
 the answer is that evidence which the plaintiff has 
 a right to require and to use to invalidate the defence 
 set up by the plea ; and the plaintiff is entitled to make 
 use of it, not only upon the hearing of the cause, upon 
 the issue raised by the plea after the plea shall have 
 been decided to be a good bar upon argument, but upon 
 the argument of the plea itself, before any evidence can 
 be given for the purpose of disproving the plea, by read- 
 ing from it any facts or admission which may negative 
 the matters pleaded or averred in the plea. ^ 
 
 Pleas may in some cases be amended ; as where there 
 has been an evident slip or mistake, and the material 
 ground of defence seems to the court to be sufficient. 
 
 1 Chapin v. Coleman, 11 Pick. 330. Cork v. Wilcock, 5 Madd. 
 330. Foley -o. Hill, 3 Myl. & C. 475. Harris v. Harris, 3 Hare, 452, 
 Wigram, V. C. Parkinson v. Chambers, 1 Kay & Johns. 72. 
 
 2 Harpending v. Dutch Church, 16 Peters, 455. 
 
 ' Harris v. Harris, 3 Hare, 453. Andrews v. Brown, 3 Cush. 130, 133. 
 
94 PEINCIPLES OF EQUITY PLEADING. 
 
 The rule is, that, when a party moves to amend his plea, 
 he must show that the defect happened by mistake, 
 how the mistake happened, and that the form of the 
 amendments proposed should be laid before the court, 
 that the court may see whether it is material that the 
 cause should be delayed for the purpose of admitting 
 them.^ 
 
 For the form of a very elaborate and difficult plea, 
 one of the few pleas in the history of pleading that have 
 escaped being overruled, see the case of Saunders v. 
 Druce, 3 Drewry, 140 ; Drewry Eq. PI. 146. 
 
 > Cooper Eq. PI. 234. Newman v. Wallis, 2 Bro. C. C. 417. 
 "Wood V. Strickland, 2 Ves. & B. 157. Crease v. Babcock, 10 Met. 
 627. 
 
ANSWEES. 95 
 
 CHAPTEE VI. 
 
 ANSWERS. 
 
 The most usual course of defence to a bill is by an- 
 swer. ^ " If you choose to rest on a short point, you must 
 do so by plea ; or if not, you must answer." ^ An answer 
 may be either voluntary or compulsory. It is voluntary, 
 if no interrogatories being filed by the plaintiff, the 
 defendant nevertheless is advised to put in a counter- 
 statement to the bill. It is compulsory, if interroga- 
 tories are filed by the plaintiff. As all the rules of 
 pleading which apply to a voluntary answer apply also 
 to a compulsory answer, and as the latter is in addition 
 regulated also by some special rules, it wiU be sufficient 
 to discuss the rules of pleading affecting a compulsory 
 answer. 
 
 The function of an answer is twofold : to give dis- 
 covery by specific answers to all the questions put by 
 the interrogatories filed in aid of the biU ; and to aver 
 all such original matter as the defendant may have to 
 put forward for making a case, which, if true, destroys 
 the equity of the plaintiff's case, even though aU or 
 some of the plaintiff's allegations may be true. 
 
 1 The word "answer" embraces every defence which a defendant 
 may make, except demurring alone. Lord Cottenham in Hunter v. 
 Nockolds, 2 Phill. UO, 543. 
 
 2 Vice Chancellor Wood in Swabey v. Sutton, 1 Hem. & Mil. 516. 
 
96 PRINCIPLES OF EQUITY PLEADING. 
 
 There is a remarkable peculiarity about the pleadings 
 in equity which distinguish them from all other systems 
 of pleading, and even from those that are founded upon 
 the same model. This peculiarity consists in the double 
 office performed bythe answer. The answer in equity 
 not only contains the result of the examination of the 
 defendant which the plaintiff requires by his bill, but 
 it also contains the matter upon which the defendant 
 founds his resistance to the claim. Nothing is more 
 common than the use of the term, both in the sense of 
 what is said in reply to a question and in confutation 
 of a charge ; and nothing would be more illogical than, 
 to apply the same reasoning to an answer without re- 
 gard to these diverse senses. It cannot be disputed 
 that the term "answer" is used in the courts of equity 
 in both of the senses which are attributed to it ; and it 
 seems to follow, as a necessary consequence, that, in all 
 arguments or judgments in which it occurs, the first 
 question is, in which of these senses is it applied.^ 
 
 The principal technical requisite of an answer is what 
 is termed sufficiency; by which is meant, that it must 
 distinctly answer every interrogatory. It may admit 
 or deny, or it may ignore, the facts alleged and iaterro- 
 gated to ; -or it may state a different state of facts (pro- 
 vided they are relevant to the interrogatory), wholly or 
 partially destroying or qualifying the allegations of the 
 bill ; and subject to that statement of facts the answer 
 may admit, deny, or ignore the matters inquired after ; 
 but in one or other of these forms it must meet the 
 interrogatories. 
 
 1 Hare on Discovery, 223, 1st ed. 
 
ANSWERS. 97 
 
 By way of example: suppose a bill to allege that 
 " the plaintiff deposited £100 in the hands of B. as his 
 agent, for the purpose of purchasing therewith a cargo 
 of silk." The interrogatory would be " whether the 
 plaintiff did not deposit £100 or some other and what 
 sum with B., and whether or not as Jiis agent, or in any 
 other and what character ; and whether or not for the 
 purpose of purchasing a cargo of silk, or for some other 
 and what purpose." Now, an answer to that interroga- 
 tory would be sufficient if it admitted the whole facts 
 as alleged, or if it denied the whole of them, or if it 
 averred that the defendant was wholly ignorant respect- 
 ing every one of them ; of course in each case repeating 
 or traversing the very words of the interrogatory. So 
 it would be sufficient if it admitted that the plaintiff 
 did place in B.'s hands £100 for the purpose of purchas- 
 ing a cargo of silk, and then went on to aver circum- 
 stances negativing ag&ncy, and concluded by saying that, 
 " save as aforesaid," the defendant denied the placing in 
 the hands of B. the sum of £100 or any other sum as 
 his agent; or, save as aforesaid, otherwise for the pur- 
 pose of purchasing a cargo of silk, or for any other pur- 
 pose.^ 
 
 So, referring to the most common subject of insuffi- 
 ciency in answers, viz. the answer to the charge of pos- 
 sessing books and papers. The interrogatory usually is 
 of this kind, " whether the defendant has not in his 
 possession divers or some and what deeds or a deed, 
 maps or a map, letters or a letter, etc., going through a 
 variety of other documents, or other documents or a. docu- 
 
 1 Drewry Eq. PI. 70, 71. 
 7 
 
98 PRINCIPLES OF EQUITY PLEADING. 
 
 merit" Now, suppose the defendant has deeds and a 
 letter, but no maps, a sufficient answer would be, "I 
 have in my possession the deeds and the letter referred 
 to in the schedule ; and, save as aforesaid, I deny that I 
 have in my possession any deeds or a deed, maps or a 
 map (and so on, traversing every word used in the in- 
 terrogatory), or any documents or document." But if the 
 answer were, " I have the deeds and the letter referred 
 to in the schedule, but, save as aforesaid, I deny that I 
 have any maps," etc., omitting the general word docu- 
 ments, the answer would be insufi&cient ; because to say 
 that, save in so far as you have deeds you have not ma'ps, 
 is not an answer whether you have or have not maps ; 
 for the word deeds does not necessarily cover or include 
 maps. But a map is a document ; and, therefore, if you 
 say you have no documents except deeds, you do say 
 that you have no Tnaps. 
 
 When a bill mixes up, as it often does, in one para- 
 graph matter which the defendant can partially admit 
 and partially deny, or admit or deny with qualifications, 
 it is very difficult to answer the interrogatory specifi- 
 cally ; and then the method of answering above referred 
 to, by first stating the defendant's own account of the 
 transaction, and, subject thereto, admitting or denying 
 the whole allegation, is convenient and usually adopted; 
 but it requires care, because, as I have observed, if the 
 matter stated as an original allegation of the answer 
 does not cover or include the matter inquired after, the 
 traverse of the interrogatory, " save as aforesaid," is not 
 an answer. 
 
 The penalty for insufficiency in an answer is, that the 
 
ANSWERS. 99 
 
 plaintiff may except to it, that is, submit to the court 
 that the questions are not answered ; and if the plain- 
 tiff's suggestion is adopted by the court, the defendant 
 then has to pay the costs he has occasioned by the con- 
 test, and to put in a further and better answer. 
 
 It must be observed, however, that although the rules 
 as to the sufficiency of an answer are exactly the same 
 as they were before the recent legislation, the temper of 
 the judges m dealing with them is very different, and 
 the effect of certaia powers given by the statutes ren- 
 ders excepting to answers in most cases useless ; conse- 
 quently counsel of experience never except to answers 
 upon merely technical insufficiency, and only do so ia 
 very exceptional cases of substantial insufficiency. 
 
 With regard to exceptions on merely technical insuffi- 
 ciency, when the defendant has suhstantially answered, 
 it is sufficient to say that the judges view them with 
 great distaste and displeasure, as an abuse of the plead- 
 ings of the court, and that counsel of experience never 
 take them. 
 
 There is one class of cases, however, in which excep- 
 tions to an answer for insufficiency are proper; that is, 
 when a defendant refuses to answer a specific question, 
 on the ground that he is not hound to answer it ; in 
 other words, when in effect he demurs to the question. 
 Suppose, for instance, a bill filed, by one of three cestuis 
 que trust against the trustee of a fund originally in his 
 hands as a general fund, for an account of his dealings 
 with the whole fund ; and suppose part of his defence 
 to be that he had power to sever the fund, and has 
 severed it into three distinct portions, and has set apart 
 
100' PEINCIPLES OF EQUITY PLEADING. 
 
 and appropriated tlie plaintiff's one-third as a marked 
 fund. He will aver these facts in his answer; and, an- 
 swering as to the plaintiff's one-third, submit that he is 
 not bound to answer any interrogatories respecting his 
 dealings with the other two-thirds. In such a case it 
 might be that upon the bill and answer a question would 
 arise, whether the trustee had power to sever the gen- 
 eral fund ; and if he had power, whether he had so 
 severed the fund, as to be justified in refusing to answer 
 as to the whole, — questions on which the plaintiff would 
 have a right to take the opinion of the court. And 
 then, proceeding by way of exception to the answer 
 would be not only justifiable, but useful; because the 
 exception would be on matter of substance, and on mat- 
 ter on which the defendant, if examined orally, would 
 equally demur to the question ; so that in any view it 
 must at last be decided by the judge whether the de- 
 fendant is bound to answer or not.^ 
 
 When an answer denies or ignores any matter in- 
 quired after, it must be as to the defendant's knowledge, 
 information or belief. For a man may believe a state- 
 ment, though he neither knows nor has been informed 
 that it is true ; and he may have been informed that it 
 is true, and not beheve it. Therefore, it will not do in 
 an answer for a defendant to say simply, " I cannot set 
 forth," for that may mean " I will not set forth ; " but 
 he must say, " I deny (or I cannot set forth), as to my 
 knowledge, information or lelief" 
 
 A defendant is only bound to answer as to questions 
 of fact; questions, being in effect questions of law, he 
 1 Drewry Eq. PI. 74, 75. 
 
ANSWERS. 
 
 may pass over ; tut it is more usual, iu drawing an an- 
 swer, to submit them to the court. For instance, if a 
 bni alleged that A. did certain acts, and thereby be- 
 came a constructive trustee, the answer would admit 
 the acts, and submit to the judgment of the court 
 whether the defendant became thereby a constructive 
 trustee.^ 
 
 An objection for want of parties may be taken by 
 answer as well as by demurrer ; and whether the objec- 
 tion appears on the face of the bill or upon the matter 
 averred by the answer, it is always prudent and proper 
 to take the objection by the answer ; for this reason, 
 that if the court, at the hearing of the cause, sustains 
 the objection, the plaintiff, on obtaining leave to amend 
 his bill, wiU have to pay to the defendant or defendants 
 the costs of the day. But if the objection for want of 
 parties is taken for the first time at the hearing, then, 
 because the plaintiff has not been apprised that at the 
 hearing of the cause the bill would be so objected to, 
 the court usually orders the cause to stand over, with 
 Liberty to the plaintiff to amend, without any costs on 
 either side.^ 
 
 An answer must be full and complete to all the ma- 
 terial allegations in the bUl. It must either confess and 
 avoid, or traverse and deny, the material parts of the 
 bilL The defendant must also speak directly and with- 
 out evasion, and not merely answer the several charges 
 literally, but must admit or deny the substance of each 
 charge; and whenever there are particular, precise 
 charges, they must be answered particularly and pre- 
 
 1 Drewry Eq. PI. 76. 2 Drewry Eq. PI. 76. 
 
102 PRINCIPLES OF EQUITY PLEADING. 
 
 cisely, though a general answer may amount to a full 
 denial of the charges.^ 
 
 The rules stated in pp. 30, 31, 34, in reference to a 
 bill, apply equally to answers. 
 
 A defendant cannot go into evidence, that is, cannot 
 call witnesses to prove any substantive issue that he 
 has not raised by his answer ; for instance, if his de- 
 fence by answer, to bill filed agaiust him as trustee, was 
 that he had never acted, and was not trustee, he cannot 
 go into evidence to prove that he had acted in and com- 
 pletely performed the trust. 
 
 Hence arises the necessity frequently of using on be- 
 half of a defendant the second function of an answer, 
 viz. that of averring new matter not averred in the bill, 
 destructive of or qualifying the equity claimed by the 
 plaintiff. 
 
 For instance, suppose a bill by a principal a'gainst his 
 agent, alleging agency transactions, and praying an ac- 
 count and payment ; and suppose the real defence to be 
 a settled account. If the defendant answered merely 
 admitting the agency and agency transactions, he could 
 not resist at the hearing a decree for an account, be- 
 cause, not having pleaded the settled account, he could 
 not produce it as evidence, nor go into any evidence to 
 prove it. The answer should, therefore, in such a case, 
 aver that there was a settled account, and then it might 
 be proved.^ 
 
 Numberless other instances occur in practice, in which 
 it is material for the interests of a defendant, by his 
 
 1 Cooper Eq. PI. 313. Story Eq. PI. § 852. 
 
 2 Drewry Eij. PL 77, 78. 
 
ANSWERS. 103 
 
 answer, to set up original matter by way of defence; 
 and for this reason it is not of course that an infant 
 should either not answer, or put in a mere formal an- 
 swer, stating his infancy, and submitting his right to 
 the court. An infant may sometimes materially assist 
 his interest by putting in an answer suggesting original 
 matter. The general rule being, however, understood, 
 only knowledge of the law and experience can point out 
 to the pleader when it is, and when it is not, useful or 
 necessary to aver original matter in the answer. 
 
 An answer is a full defence as to both law and fact; 
 therefore, every objection which may be taken by de- 
 murrer, or by plea, may also be taken by way of an- 
 swer. Thus, an answer may answer as to the facts, and 
 conclude by submitting that, on the face of the bill, 
 there is no equity, or by averring some specific fact or 
 instrument, or statute (as in a plea), which it submits 
 is destructive of the equity, irrespectively of the facts 
 alleged by the bill.^ 
 
 It is usual, when an objection of this sort is taken by 
 answer, to crave that the defendant may have the same 
 benefit as if he had demurred or pleaded.^ But what is 
 the advantage or precise effect of that form of answer- 
 ing, I am unable to collect from the books. In practice, 
 a defendant taking by answer an objection which he 
 might have taken by demurrer or plea, so far from hav- 
 ing the same benefit as if he had demiirred or pleaded, 
 frequently loses the costs of the suit (to which he might 
 otherwise have been entitled), because he has obliged 
 
 » DrewryEq. PL 78, 79. 
 
 * 1 Daniell Ch. Pract. 620, 6th London ed. 
 
104 PRINCIPLES OF EQUITY PLEADING. 
 
 the plaintiff to go into evidence, and hear the cause 
 fully, when he might have cut it short by demurring 
 or pleading. 
 
 Therefore, such a double or triple mode of defence is 
 advisable only in those cases in which the question, 
 whether the bill is demurrable or open to a plea, is 
 a doubtful one, and when the defendant is advised that 
 his substantial or better defence is on the merits. It 
 need hardly be observed that the majority of chancery 
 suits falls within this category.^ 
 
 Persons sui juris answer in their own names. A 
 married woman, answering in respect of an interest 
 vested in her husband in her right, answers jointly with 
 him, and it is in effect the answer of her husband. But 
 if she answers in respect of her separate estate, or if for 
 any reason she answers separately, she answers iu her 
 own name. 
 
 An infant answers by his guardian. A person of im- 
 becile or of unsound mind answers by his guardian ad 
 litem appointed by the court.^ 
 
 A defendant, though he has some interest in the mat- 
 ter of the suit, may have so little, or what he has may 
 be so valueless, as not to make it advisable for him 
 to incur any risk of costs in respect of it. In that case 
 he may meet the bill by an answer and disclaimer ; that 
 is, an answer as to part, and a disclaimer as to part ; or 
 by a disclaimer as to the whole. The substance of a 
 disclaimer is, that the defendant has not, and had not at 
 the institution of the suit, any claim ; or if he had, that 
 he did, before the institution of the suit, or the very 
 
 1 Drewry Eq. PI. 79. 2 Drewiy Eq^. PI. 80. 
 
ANSWEES. 105 
 
 moment he was informed of it, offer to disclaim and re- 
 lease his interest. A disclaimer is, in form, an answer, 
 and is settled and signed by counsel.^ 
 
 A supplemental answer is, where a defendant dis- 
 covers that in his original answer he has, by mistake or 
 forgetfulness of the real facts, misstated some fact; 
 and then under very special circumstances he is per- 
 mitted to file a supplemental answer to correct the mis- 
 take. But permission to file a supplemental answer, in 
 any degree contradicting the original answer, is obtained 
 with great difficulty, particularly if the effect of the sup- 
 plemental answer is to benefit the defendant.^ 
 
 The plaintiff may waive the necessity of the answer 
 being made on the oath of the defendant. In such case 
 the plaintiff should insert in the bill, after the prayer 
 that the defendant "may answer all and singular the 
 premises," the clause, " but not on oath, an answer on 
 oath being hereby waived." Nevertheless, the defendant 
 has a right to answer on oath, and the plaintiff cannot 
 deprive him of this right. This is the settled rule of 
 equity practice where there is no regulation to the 
 contrary.^ 
 
 1 Drewry Eq. PI. 80. 
 
 2 Fulton V. GUmore, 1 PhU. 522. Frankland v. Overend, 9 Sim. 36. 
 8 Clements v. Moore, 6 "Wall. 299, 314. Armstrong v. Scott, 3 G. 
 
 Greene, 433. 
 
106 PRINCIPLES OF EQUITY PLEADING. 
 
 CHAPTEE VII. 
 
 AMENDED BILLS. 
 
 A BILL very frequently requires amendment, either 
 by reason of matters averred by the answer, or by reason 
 of further information obtained by the plaintiff, irre- 
 spective of the answer. For instance, if a bill made a 
 case of agency transactions, praying an account and pay- 
 ment, and the defendant answered, setting up a settled 
 account, the bill might require amendment to allege, 
 that though it was true that there had been a settled 
 account, it had been subsequently ascertained by the 
 plaintiff that the accounts rendered by the agent had 
 been falsified ; or that the settled account was otherwise 
 fraudulently obtained ; or that it had been subsequently 
 agreed between the parties that the settled account 
 should not be binding on either party. So, if a bill 
 made a case of threatened aind intended, waste, and the 
 plaintiff afterwards discovered that there had been 
 actual waste, he would require to amend his bill, and 
 strengthen his case by alleging the actual as well as the 
 threatened waste. 
 
 A motion for leave to amend the bill must be founded 
 upon a specified omission or imperfection. A general 
 leave to amend is the same as leave to make a new bUl, 
 and the indulgence of amendments is not to be carried 
 
AMENDED BILLS. 107 
 
 SO far. If the bill is found defective in its prayer for 
 relief, or in proper parties, or in the omission or mistake 
 of some fact or circumstance connected with the sub- 
 stance of the case, but not forming the substance itself, 
 the amendment is usually granted. But the substance 
 of the bUl must contaia ground for relief. There must 
 be equity in the case, when fully stated, and correctly 
 applied to the proper parties, sufficient to warrant a 
 decree.^ 
 
 The courts have power to allow an amendment to 
 a bni, either in matter of form or substance, at any 
 stage of the cause before the entry of a final decree. 
 The authority to allow such amendments is, in many in- 
 stances, expressly conferred by statute. In this particu- 
 lar, the rules of practice adopted in the Enghsh chancery 
 courts are not followed. It is not necessary, even 
 where a demurrer is filed which goes to the equity of 
 the whole bill, that the plaintiff should make a motion 
 to amend in anticipation of an adverse decision. After 
 a demurrer is sustained, the case is not regarded as out 
 of court, so that it cannot be reinstated by amendment in 
 matters of substance because application therefor was 
 not made before the decision on the demurrer was pro- 
 nounced. The usual mode is to allow a plaintiff a rea- 
 sonable time after a demurrer has been sustained, either 
 on the ground of defect in form or for want of equity, 
 to move for leave to amend his bill for the purpose 
 of supplying the defect, or alleging new or additional 
 grounds for the equitable rehef which he seeks. And 
 such amendments are always allowed, unless sufficient 
 
 1 Lyon V. Tallmadge, 1 Johns. Ch. 183, 188. 
 
108 PRINCIPLES OF EQUITY PLEADING. 
 
 cause is shown to the contrary. In this respect' the 
 practice of the court is liberal. But a motion to amend 
 is not allowed as a matter of right. The statute which 
 confers the power is not mandatory. While the au- 
 thority which it gives to the court is ample, the ques- 
 tion of its exercise is left to judicial discretion. ^ 
 
 Formerly no fact could be introduced by way of 
 amendment, unless it existed at the time when the bill 
 was filed. Matter occurring subsequently to the filing 
 of the bill was matter for a supplemental hill. But now, 
 facts occurring after as well as before the filing a bill 
 may be the subject of amendment. Therefore, if at the 
 time when the bill was filed the plaintiff had so far 
 parted with his interest to others that they were neces- 
 sary parties to the suit, and afterwards he obtains a 
 reconveyance from those parties, he may introduce that 
 fact and strike out the defendants from the record by 
 amendment, provided the suit is otherwise in such a 
 state as to allow of an amendment of the bill. A suit 
 is in such a state till replication has been filed ; that is, 
 till the plaintiff has put on the file of the court a docu- 
 ment by which he formally denies the truth of the de- 
 fendant's answer, and forces him to go into evidence to 
 prove his case.^ After replication, a bill can only be 
 amended by special leave, which is not readily granted. 
 
 A bin may be amended, either by adding to or altering 
 the substantial matter alleged ; or by adding parties as 
 
 1 Merchants' Bank of Newburyport v. Steyenson, 7 Allen, 489, 491. 
 
 ^ The general replication puts in issue all the facts alleged in the 
 answer ; and a hearing upon the hill, answer and replication involves 
 the trial of those facts. Hare v. Downing, 130 Mass. 16. Taunton n. 
 Taylor, 116 Mass. 254, 262. 
 
AMENDED BILLS. 109 
 
 defendants or as plaintiffs j or by striking out parties in 
 either of those characters. But in amending, by alter- 
 ing the state of parties, sufficient matter must be stated 
 in the body of the bill to show how the alteration is 
 requisite. Thus, if the amendment became necessary 
 because a defendant had become bankrupt, the amended 
 bill would allege the bankruptcy and the appointment 
 of the assignees, and that the defendant's interest was 
 vested in them, and they were necessary parties. 
 
 All the rules of pleading stated, as to the proper 
 framing of allegations of title or fact in an origiaal bill, 
 apply equally to amendments, or to an amended bill ; 
 and, if the plaintiff desires an answer to the amend- 
 ments, fresh iaterrogatories must be prepared and filed. 
 
 It has been stated that amendments may consist in 
 adding to or varyiag the case made by the bill ; but this 
 must be understood to be sub modo. The variation, 
 whether it be in extension of the case, or strictly in 
 variation of it, must be consistent with the substance of 
 the case originally made. The amendments must not 
 make a totally new and distinct case.-^ 
 
 1 Shields v. Barrow, 17 How. 130. Thomson v. Judge, 2 Drew. 414. 
 
110 PKINCIPLES OF EQUITY PLEADING. 
 
 CHAPTEE VIIT. 
 
 REVIVOR AND SUPPLEMENT, AND SUPPLEMENTAL 
 BILLS. 
 
 A BILL in the nature of a bill of revivor or sup- 
 plement can only be brought by some person who 
 claims in privity with the plaintiff in the original 
 bill. 
 
 If any party to a suit dies, his real or personal repre- 
 sentatives, or both (according to the nature of his inter- 
 est), must be made parties in his place. 
 
 So, if a feme sole marries, her husband must be made 
 a party, if her interest vests in him alone ; or her trus- 
 tees, if by a marriage settlement her whole interest 
 vests in them. 
 
 If a party become bankrupt or insolvent, he ceases to 
 have any interest ; and his assignees must be made par- 
 ties in his place. 
 
 Or if, by act inter partes, the interest of any party 
 is transmitted wholly or partially to other persons, his 
 assignees, either alone or with him, must be made 
 parties. 
 
 So if while a suit is in progress an interest accrues to 
 any one de novo, as in the case of the birth of one of a 
 class in whom, as a class, an interest is vested, such 
 person, so acquiring a right, must be made a party. 
 
EEVIVOR AND SUPPLEMENT. Ill 
 
 All these changes in the constitution of a suit, as to 
 parties, produce either what is technically called abate- 
 ment or simple defectiveness. The difference between 
 abatement and simple defectiveness was never very 
 clear ; ^ it is now unimportant by force of recent legis- 
 lation.2 
 
 When any event happens, subsequently to filing an 
 original bill, which gives a new interest or right to a 
 party, it should be set out in a supplemental bill.^ Such 
 bOl must follow the original complaint, and set forth 
 actual and subsequent damages arising from the same 
 cause set forth in the bill.* 
 
 A supplemental biU ought not to be filed as a matter 
 of course, but only by leave of the court, upon sufficient 
 cause shown ; and the supplemental matter must be ver- 
 ified by affidavit or other satisfactory proof. To warrant 
 the filing of such bill, it should be shown to the court, 
 either that the matter relied on as supplemental has 
 arisen since the commencement of the origiaal suit ; or 
 that the plaintiff had available notice thereof when it 
 was too late to amend ; or that he has been prevented 
 from availing himself of the same at an earlier stage of 
 the cause, through inadvertence, misapprehension on 
 the part of himself or his agents or counsel, or by some 
 other cause satisfactorily shown.^ 
 
 1 Story Eq. PI. §§ 329, 330. 
 
 2 Drewry Eq. PI. 86, 87. 
 
 " Saunders v. Frost, 5 Pick. 275. Pinch v. Anthony, 10 Allen, 
 477. 
 
 * Bardwell v. Ames, 22 Pick. 375, 477. 
 
 6 Pedrick v. White, 1 Met. 76, A. D. 1840. In this case, Chief 
 Justice Shaw observed : "The practice of chancery, in all its various 
 details, is still so comparatively new in this court, and the court are 
 
112 PRINCIPLES OF EQUITY PLEADING. 
 
 Eecent statutes and rules of court' render bills of 
 simple revivor wholly unnecessary, and bills of stipple- 
 ment necessary only iu a few cases. 
 
 A supplemental bill, as its very name indicates, is a 
 bill bringrag forward some matter supplemental and 
 ancillary to the original suit. It follows that a sup- 
 plemental suit cannot be heard before the original suit, 
 though it may after it. Usually it is heard and dis- 
 posed of with the original suit. And if the supple- 
 mental suit has been instituted so late in the progress of 
 the original suit, that it is not ripe for hearing at the 
 time when the original suit has reached that state, the 
 court will, in general, defer the hearing of the original 
 suit till the supplemental suit is ready for hearing, that 
 they may both come on together. If the supplemental 
 matter is such as of itself to require postponement of 
 the hearing of the original suit, it is not proper to make 
 it the matter of a supplemental bill. 
 
 When the circumstances of the case are such as to 
 require a bill of revivor, or supplemental bill, or bOl in 
 the nature of either or both, or the joinder of additional 
 or different parties, the requisite allegations may be made 
 by way of amendment to the original bill ; and, after 
 service on any new parties as in the case of an original 
 bill, and service of copies of the amendments on all the 
 defendants affected thereby, shall entitle the plaintiff to 
 proceed as on an original bill. 
 
 For bringing forward either new facts or new parties, 
 
 so frequently called upon to examine and apply the rules to new cases 
 as they occur, amidst the pressure of common-law engagements, that we 
 are in danger of falling into some irregularities." 
 
KEVIVOK AND SUPPLEMENT. 113 
 
 a supplemental bill is still necessary, after a decree has 
 been pronounced in the original suit. 
 
 It is also necessary before decree (if the suit has 
 reached that state in which amendment is not allowed) 
 for bringing neiv parties before the court. If only new 
 facts, between the same parties, are to be brought for- 
 ward before decree, no bill of any kind is requisite, but 
 only an amendment. , 
 
114 PEINCIPLES OF EQUITY PLEADING. 
 
 CHAPTER IX. 
 
 INTERLOCUTORY APPLICATIONS.! 
 
 Having now disposed of the different kinds of bills, 
 and of the pleadings used by way of defence to biUs, I 
 proceed to point out the rules applicable to those inter- 
 mediate proceedings in a suit, occurring between the 
 filing of the bill and the hearing of the cause, and to 
 certain proceedings antecedent or subsequent to the 
 hearing, in which the services of the pleader may be 
 called in aid. 
 
 It is frequently necessary in suits to make what are 
 termed interlocutory applications; that is, apphcations 
 for some intermediate relief or assistance, pending the 
 ultimate hearing or the ultimate disposal of the cause. 
 
 Of this class are applications for injunctions and 
 receivers; for payment of money into court; for pro- 
 duction of documents admitted by the answers; and 
 for various other orders, giving intermediate relief. 
 
 In some cases, the interloctitory relief is, in effect, the 
 whole relief wanted; and when that is granted or 
 refused, the suit is usually settled by the submission of 
 the defeated party. Of this class are most kinds of 
 injunctions ; such as injunctions to stay waste, infringe- 
 inent of copyright, of patents, of trade-marks, and to 
 
 1 Drewiy Eq. PI. Chap. VIII. p. 92. 
 
INTEELOCUTORY APPLICATIONS. 115 
 
 stay nuisance. Suits instituted for these purposes 
 usually terminate by arrangement, on the granting or 
 witliliolding the injunction. 
 
 Some interlocutory applications are made hy petition, 
 and some by motion, and there is no very definite prin- 
 ciple by which to determine in any new case when the 
 proceeding should be by petition and when by motion. 
 The only approximation to a rule is, I apprehend, this : 
 that a motion is proper where the issue tendered is 
 simple, though it may involve a great mass of evidence ; 
 and a petition is the proper course when several distinct 
 issues are tendered, though each may require very little 
 evidence to support it. The court, in the latter class of 
 cases, requires to have the allegations of the parties on 
 record, and in the former class it does not. By way of 
 illustration : an application to stay waste, or any act in 
 the nature of waste, tenders the single issue, " waste or 
 no waste," though the facts may be numerous and the 
 evidence required voluminous. 
 
 An application, for payment of money out of court, 
 usually tenders many issues; such as the pedigree of 
 the petitioner, and of other claimants ; the devolution 
 of the fund, etc. ; and for such an application a petition 
 is the proper course. 
 
 However, practice has settled what shall be the 
 course in so many cases, that difficulty seldom arises. 
 
 All applications for injunctions are made on motion ; 
 so are applications for receivers, for staying proceed- 
 ings, for dismissing bills for want of prosecution, for 
 production of documents admitted by the answer, for 
 payment into court of trust money admitted by the 
 
116 PRINCIPLES OF EQUITY PLEADING. 
 
 answer to be in the defendant's hands, and for a ne 
 exeat regno. 
 
 Applications for payment of money out of court, for 
 stop orders oii funds in court, for taxation of solicitors' 
 bills of costs, for inquiries as to compromises, or for 
 obtaining the sanction of the court to compromises or 
 arrangements, and many others, are always made on 
 petition. On this head I must refer to the books of 
 practice, as the question is one of practice and not of 
 pleading. 
 
 Motions are made without any form of pleading, 
 except a notice of motion, which is seldom, though it is 
 sometimes, settled by counsel. The only point to be 
 observed in reference to a notice of motion is, that it 
 must state on whose behalf and against whom it is 
 intended to be made, and must state accurately the 
 particular relief intended to be asked ; and also, if it is 
 what is termed short notice of motion, that is, for 
 making a motion with less than two clear days' notice, 
 the notice of motion should express on the face of it 
 that it is by leave of the court, given on such a day, to 
 move on such a day, otherwise the motion will be 
 refused with costs for irregularity, irrespective of the 
 merits, into which the court will refuse to enter. 
 
 It will be useful, also, to bear in mind, with respect 
 to the substance of motions, that they are of two 
 classes, — motions ex parte, or without notice to the 
 respondent, and motions on notice. If a motion for an 
 injunction (the most frequent in practice), or indeed 
 any motion made on affidavits, is made ex parte, the 
 party moving must, in the affidavits supporting his 
 
INTERLOOUTOEY APPLICATIONS. 117 
 
 bill, inform the court of every fact material to the 
 decision of the question whether the order shall go or 
 not. If he withholds any such fact, whether wilfully 
 or inadvertently, the court will, on application by the 
 respondent, discharge the order with costs for irregu- 
 larity, irrespective of the merits. 
 
 Hence, ex parte motions for injunctions are only 
 advisable in cases of immirient danger, such as pulling 
 down a building, the sailing of a sliip, an impending 
 sale, or the like, when the mischief might be done 
 before the motion could be heard, if notice were given. 
 
 Petitions are a species of pleading, and are often 
 settled by counsel. The rules of legal composition 
 pointed out in reference to bills apply very nearly to 
 petitions. A petition, if in a suit, is entitled in the suit ; 
 it is addressed to the court, and headed the petition of 
 A. B. etc., one of the defendants (or plaintiffs, as the 
 case may be). It states succinctly the facts, and the 
 substance, if possible, of the documents on which the 
 prayer is founded ; occasionally, documents must be set 
 out, but the general rule is only to set out the material 
 parts. If iQStruments are set out at unnecessary 
 length, the court will not allow the costs occasioned 
 by so much as is unnecessary. 
 
 The prayer of a petition is like the prayer of a bill, 
 it prays specifically the relief desired, or such other 
 relief as the court may think just and fit; and the 
 same rules apply to a petition (I am speaking of 
 opposed petitions) as to a bill, in respect of the 
 necessity that the prayer should be substantially in 
 conformity with the case made, and in respect of the 
 
118 PEINCIPLES OF EQUITY PLEADING. 
 
 necessity of alleging what the petitioner intends to 
 prove. For, if a petition alleges one matter, and proves 
 and seeks to found relief on a totally distinct matter, 
 the court would sustaui an objection to such proof 
 being received, and would grant no relief upon the 
 petition. 
 
THE PROCEEDINGS ON GOING INTO EVIDENCE. 119 
 
 CHAPTER X. 
 
 THE PEOCEEDINGS ON GOING INTO EVIDENCE.i 
 
 It has been stated that the parties to a suit can only 
 go into evidence in support of matter put in issue by 
 their pleadings, and that rule must always be borne in 
 mind both in advisiag on evidence, in settling affidavits, 
 and in examining witnesses. 
 
 The course of taking evidence in a chancery suit, at 
 this day, is as follows : When a replication has been 
 filed, whereby the cause is put at issue, each party 
 may either file affidavits, or examine witnesses orally, 
 or may take both courses. 
 
 Also the plaintiff may, if he thinks fit, cross-examine 
 the defendants on their answers ; but he thereby makes 
 the answers affidavits, and readable as such by the de- 
 fendants ; and he also thereby entitles the defendants to 
 be re-examined after the cross-examination. If the 
 plaintiff thinks fit, he may examine the defendants in 
 chief orally; but then he makes them his own (the 
 plaintiff's) witnesses, and entitles them to be cross- 
 examined. The defendants have the same right of ex- 
 amining oraUy the plaintiff. 
 
 Either party may cross-examine orally any witness who 
 has made an affidavit for the other party. The oral ex- 
 
 1 Drewry Eq. PI. Chap. IX. p. 97. 
 
120 PEINCIPLES OF EQUITY PLEADING. 
 
 amination of the witnesses does not take place in open 
 court at the hearing of the cause (unless at the hearing of 
 the cause the court desires to have witnesses examined), 
 but before the hearing of the cause, in the presence of 
 one of the public examiners of the court, or of a special 
 examiner, who, by his appointment as such, is invested 
 with the same powers as the public examiner. 
 
 The examination is conducted in the same manner as 
 at nisi prius. The counsel calling a witness examines 
 him in chief ; then the counsel on the other side cross- 
 examines him; and then the counsel calling him re- 
 examines. If the examination is the cross-examination 
 of an affidavit witness, the affidavit is treated as the ex- 
 amination in chief; then the counsel cross-examining 
 begins, and the counsel on the other side re-examines. 
 
 In strictness, the rules of evidence applicable at nisi 
 prius are equally applicable in equity; but, from the 
 nature of equity suits, and the quality of the witnesses 
 in such suits, the rules of evidence are not in practice 
 pressed so strongly in equity as at common law. In par- 
 ticular, what are termed leading questions are not ob- 
 jected to with the same degree of stringency. Still, it 
 must not be forgotten that, as to what is and what is 
 not admissible evidence, the rules are the same as at 
 law. 
 
 The duty of settling affidavits is often cast upon 
 counsel, and therefore a few observations on the rules 
 to be followed in settling affidavits will not be useless 
 to the student, particularly as the affidavits originally 
 penned by the parties are, in general, fuU of both use- 
 less and improper matter. 
 
THE PEOCEEDINGS ON GOING INTO EVIDENCE. 121 
 
 Evidence by affidavit is, in strictness, governed by the 
 same rules as oral evidence ; but in practice a much 
 greater laxity prevails. The less, however, affidavits are 
 inconsistent with the rules of evidence, the more useful 
 they are. 
 
 1. All irrelevant matter, that is, matter not strictly 
 supporting the issue or issues tendered, should be struck 
 out. 
 
 2. The statements made ought to be either from the 
 defendant's own knowledge, or from belief founded on 
 information; and he must show distiuctly what facts 
 are within his own knowledge ; what facts he derives 
 from information ; and what, if he is only informed, are 
 his sources of information. 
 
 3. Affidavits in reply to affidavits made on the other 
 side should be confined to facts negativing the facts 
 alleged by the affidavit replied to. Mere denials, not 
 alleging any facts negativing the opponent's evidence, 
 should, in general, be struck out as useless. 
 
 4. In general, allegations on affidavits merely tending 
 to vilify the opponent or his witnesses (unless they go 
 actually the length of discrediting the witnesses accord- 
 ing to the rules of law), should be ruthlessly struck out. 
 The court never pays the slightest attention to them, 
 unless, uadeed, to imbibe a prejudice (if judges are ca- 
 pable of prejudice) against the case supported by such 
 evidence. 
 
122 PKINCIPLES OF EQUITY PLEADING. 
 
 CONCLUSION. 
 
 It is to be observed that in no way can a knowledge 
 of the law of pleading and procedure be more readily 
 acquired than by a study of the decrees in chancery. 
 The great utility of consulting them, and the advan- 
 tages of adhering to the settled and well-understood ■• 
 forms and language of decrees, have been repeatedly 
 adverted to by some of the most eminent judges in 
 equity.^ 
 
 Under the concurrent, but to some extent conflicting, 
 systems of law and equity, the forms of judgments at 
 common law and of decrees in chancery differ widely. 
 Judgments at common law are uniform, simple and in- 
 variable, and being limited by the form of the writ ia 
 the action for the recovery of land, goods or money, can- 
 not be moulded so as to meet cases in which conditions 
 were to be imposed or various interests dealt with. De- 
 crees in chancery, from the more comprehensive nature 
 of the relief given, the number of the parties often 
 interested, the various claims asserted, circumstances to 
 be dealt with, and questions to be finally determined, are 
 necessarily more complicated. But notwithstanding the 
 greater pliability of equitable jurisdiction and procedure, 
 the forms of the decrees and orders by which the court 
 give effect to its determinations are generally well es'- 
 tablished, and for the most part uniform. Upon this 
 
 1 Sherwin v. Shakspear, 5 De G. M. & G. 534. Mills v. Slater, 8 
 Ves. 303. Cricket v. Dolby, 3 Ves. 13. Willau v. WiUan, 19 Ves. 
 593. Holland v. Prior, 1 Myl. & K. 246. 
 
CONCLUSION. 123 
 
 ground they have been frequently referred to as regu- 
 lating the practice and elucidating the law and proced- 
 ure of the court.^ 
 
 ^ Seton on Decrees, 1. The reader is refen-ed to the excellent col- 
 lection, contained in this work, of forms of decrees and orders, with 
 practical notes. 4th ed. Two volumes in three. Royal 8vo. 1877-79. 
 
PRECEDENTS. 
 
PRECEDENTS. 
 
 I. 
 
 BILLS. 
 
 1. Bill seeking an Injunction and Foreclosure. 
 
 Cotnm0n{DeaIt]& of JHassac^usetts. 
 
 • Plaintiffs ; 
 
 Suffolk, ss. 
 In Equity. 
 
 Between John Holford and( 
 Richard Davis . . ' 
 
 and 
 Henry Hawes . . Defendant. 
 
 BILL OF COMPLAINT. 
 
 To the Honorable the Justices of the Supreme Judicial 
 Court. 1 
 Your complainants, John Holford and Richard Davis, 
 both of Boston in the County of Suffolk, gentlemen, the 
 above-named plaintiffs, show unto j-our Honors as fol- 
 lows : — 
 
 1 Pleadings are always entitled at the oommenoement, i. a. have 
 a superscription of the Court and the term. But in all subsequent 
 examples the title is, for the sake of brevity, omitted. 
 
128 PEECEDENTS. 
 
 1. The above-named defendant, Plenry Hawes, being 
 seised in fee simple of a bouse and premises, being No. 9, 
 Street in Boston in the county of Suffolk, by in- 
 denture bearing date the first day of June 1864, and duly 
 made and executed between and by the said defendant of 
 the one part, and Henry Baker of the other part, for the 
 considerations therein mentioned, granted the said house 
 and premises unto and to tlie use of the said Henry Baker 
 and his heirs ; subject nevertheless to a proviso in the in- 
 denture now in statement contained for redemption and 
 reconveyance of the said house and pi'emises, on payment 
 by the said defendant, his heirs,. executors, administrators, 
 or assigns, to the said Henry Baker, his executors, ad- 
 ministrators, or assigns, of the sum of dollars, 
 with interest thereon from the date of the said indenture, 
 after the rate of five per centum per annum, on a day in 
 the said indenture named (in which payment default was 
 made) , as by such indenture when produced will appear. 
 
 2. The said Henry Baker died on the seventh day of 
 May 1867, having by his will, bearing date the tenth day 
 of January 1867, devised to the plaintiffs and their heirs 
 all estates vested in him by wa}' of mortgage, and having 
 appointed the plaintiffs to be his executors, and the said 
 will was on the first daj' of July 1867, proved by the 
 plaintiffs in the Court of Probate in the County of Suffolk, 
 and the plaintiffs thereby became, and now are, the legal 
 personal representatives of the said Henry Baker. 
 
 3. The defendant has from time to time made various 
 small payments on account of interest due on the said in- 
 denture of mortgage of the first day of June 1864, but a 
 large arrear of interest, together with the whole of the said 
 principal sum of dollars, is due and owing to the 
 plaintiffs as such personal representatives as aforesaid, on 
 the security of the said indenture. 
 
 4. On the seventh day of April 1873, the plaintiffs dis- 
 covered that the defendant intended to pull down the said 
 house, and that he had advertised the bricks comprising 
 
PRECEDENTS. 129 
 
 the same to be sold as building materials, and had en- 
 tered into a contract with one John Smithers for the ex- 
 ecution of the work of pulhng down the same. 
 
 5. If the said house be pulled down, the said premises 
 will be an insufficient securitj' to the plaintiffs for the 
 money due on the said mortgage security. 
 
 PRAYER. 
 
 The plaintiffs pray as follows : — 
 
 1. That an account may be taken of what is due for prin- 
 
 cipal and interest on the said indenture of mortgage. 
 
 2. That the defendant may be decreed to pay to the plain- 
 
 tiffs, as personal representatives of the said Henry 
 Baker, what shall be so found due, together with the 
 costs of this suit, by a short day to be appointed for 
 that purpose, or, in default thereof, that the defend- 
 ant and all persons claiming under him may be abso- 
 lutely foreclosed of all right and equity of redemption 
 in or to the said mortgaged premises. 
 
 3. That the defendant, his servants, agents, and workmen, 
 
 may be restrained by the order and injunction of this 
 Honorable Court from pulling down, or suffering to be 
 pulled down, the said mortgaged house, and from sell- 
 ing the materials whereof the said house is composed. 
 
 4. That for the purpose aforesaid all necessary or proper 
 
 accounts may be taken, inquiries made, and decision 
 given. 
 
 5. That the plaintiffs may have such further or other relief 
 
 as the nature of the case maj- require. 
 
 X. Y. (Counsel's name.) 1 
 
 In this suit an injunction is moved for and obtained (No. 
 XVI. etc.), and afterwards interrogatories are filed (see No. IV.). 
 
 ' Every till must have the signature of counsel annexed to it. Story 
 Eq. PI. § 47. 
 
 9 
 
130 PRECEDENTS. 
 
 2. Bill seeking to settle the Construction of a Will, and for an 
 
 Administration Decree, 
 In Equity. 
 
 Between John Sttles . . . Plaintiff; 
 and 
 Jane Styles and Ann ) ^,^,„^„„;,. 
 Styles . . . . ) 
 
 BILL OF COMPLAINT. 
 
 Your complainant, John Styles of Boston in the County 
 of Suffolk, watchmaker, the above-named plaintiff, shows 
 unto your Honor as follows : — 
 
 1. Charles Styles, the elder, late of Boston in the 
 County of Suffolk, esquire, duly made his will bearing date 
 the second day of February 1868, in the Words and figures 
 following (that is to say) : " I, Charles Styles, do this 2d 
 February 1868, will all my property to my wife Jane, to 
 paj' my debts and enjoy for her life, afterwards to go be- 
 tween our two children ; and I appoint her sole executrix 
 of this mj' will," but for certainty the plaintiff craves leave 
 to refer to the said will or the probate copy thereof when 
 produced. 
 
 2. The said testator died on the fourth day of February 
 1868, without having revoked or altered his said will, and 
 the said will was, on the twent3'-fourth day of June 1868, 
 proved hj the defendant Jane Stj'les (called in the said 
 will " mj" wife Jane") in the Court of Probate in the 
 Countjr of Suffolk. 
 
 3. The said testator left surviving him his widow the 
 defendant Jane Rtj'les, his daughter the defendant Ann 
 Styles, and his son Charles Styles the younger, and no other 
 child or issue of a child. 
 
 4. The said Charles Styles the younger died on the 
 ninth day of February 1868, having by his will, bearing 
 date the twentieth day of June 1867, appointed the plain- 
 
PEECEDENTS. 131 
 
 tiff to be his executor, and the said will was on the twenty- 
 third day of July 1868, proved by the plaintiff in the Court 
 of Probate in the County of Suffolk, and the plaintiff 
 thereby became and now is the sole legal personal rep- 
 resentative of the said Cliarles Styles the j-ounger. 
 
 5. The said testator Charles Styles the elder at the time 
 of his death was possessed of or entitled to considerable 
 personal estate, much more than sufficient for payment of 
 his funeral and testamentary expenses and debts, and the 
 defendant Jane Styles possessed herself thereof, and sold 
 the same and converted it into monej^, and thereout paid 
 the funeral and testamentary expenses, and debts of the 
 said testator, and invested the residue in the purchase of a 
 large sum of Bank Stock, which is now standing 
 in the name of the defendant Jane Styles in the books of 
 such Stock kept at the Bank of , subject to the 
 trusts of the said will of the said testator ; but the plain- 
 tiff is unable to discover the exact amount of such sum of 
 
 Bank Stock. 
 
 6. The plaintiff, as such legal personal representative as 
 aforesaid, has often applied to the defendant Jane Stj'les 
 for an account of her dealings and transactions as execu- 
 trix of the said testator, Charles Styles the elder, and of 
 the actual amount of the said trust fund, but the defendant 
 Jane Styles has always refused to give him any information 
 on the subject. 
 
 7. Particularly on the tenth day of January 1873, Mr. 
 John Smith, solicitor to the above-named plaintiff, wrote 
 and sent to the defendant Jane Styles a letter of that date, 
 in the words and figures or to the purport and effect 
 following (that is to say) : " I am instructed by Mr. John 
 Styles, executor to your late son, Mr. Charles Styles, to 
 ask you to furnish him with an account of your receipts 
 and payments as executrix of your late husband, Mr. 
 Charles Styles the elder, and particularly to request 
 immediate information as to the amount of the residue of 
 that estate, to one half of which Mr. John Styles will be 
 
132 PEECEDENTS. 
 
 entitled on your decease, and as to the present state of 
 investment of that amount. In the event of my not re- 
 ceiving a satisfactory answer from you within one week 
 from this date, I have instructions at once to commence 
 proceedings in Chancery against you," — as by such letter 
 when produced will appear. 
 
 8. No answer has been received to the said letter of the 
 tenth day of January 1873. 
 
 9. The defendants sometimes pretend that, according to 
 the true construction of the said will of the said testator, 
 Charles Styles the elder, the defendant Ann Styles and 
 the said Charles Styles the younger became entitled to the 
 residue of the personal estate of the said testator, after 
 paj'ment thereout of his funeral and testamentary expenses 
 and debts, as joint tenants in remainder expectant on the 
 death of the defendant Jane Styles, and not as tenants in 
 common of equal moieties of the said residue expectant as 
 aforesaid, and that in consequence of the death of the said 
 Charles Styles the younger in the lifetime of the defendant 
 Ann Styles, and without having done any act to sever the 
 said pretended joint tenancy, the defendant Ann Stj'les 
 has become solely entitled by survivorship to the whole of 
 the said residue expectant as aforesaid, and that the plain- 
 tifl" has not, as executor of the said Charles Styles the 
 j-ounger, or otherwise, any interest in or title to such 
 residue, or any right to call for an account thereof, or for 
 any information concerning the state of investment 
 thereof. 
 
 10. The plaintiff charges that, according to the true 
 construction of the said will of the said testator, Charles 
 Styles the elder, the defendant Ann Styles and the said 
 Charles Styles the younger became entitled to the said 
 residue as tenants in common of equal moieties thereof 
 in remainder expectant as aforesaid, and not as joint ten- 
 ants ; and that on the death of the said Charles Styles 
 the younger, the defendant Ann Styles did not become by 
 survivorship or otherwise solely entitled to the whole of 
 
PEECEDENTS. 133 
 
 such residue in remainder expectant as aforesaid, but that 
 the plaintiff, as executor of the said Charles Styles the 
 j'ounger, became entitled to one equal moiety thereof in 
 remainder expectant as aforesaid. 
 
 11. The plaintiff further charges that the defendant Jane 
 Styles ought to set forth an account of her receipts and 
 paj-ments as executrix of the said testator, Charles Styles 
 the elder, and that the amount of the clear residue of the 
 estate of the said testator ought to be ascertained and 
 secured for the benefit of the persons entitled thereto. 
 
 PRAYER. 
 
 The plaintiff prays as follows : 
 
 1. That it may be declared that according to the true 
 
 construction of the said will of the said Charles Styles 
 the elder, the defendant Ann Styles and the said 
 Charles Stj'les the younger became entitled to the 
 residue of the personal estate of the said Charles 
 Styles the elder, after payment thereout of his funeral 
 and testamentary expenses and debts, as tenants in 
 common of equal moieties thereof in remainder ex- 
 pectant on the death of the defendant Jane Styles. 
 
 2. That an account may be taken of the personal estate of 
 
 the said Charles Styles the elder, come to the hands 
 of the defendant Jane Styles, or of any person by 
 her order or for her use, and of his funeral and 
 testamentary expenses and debts, and that the 
 clear balance of such personal estate may be ascer- 
 tained and secured for the benefit of the persons 
 entitled thereto. 
 
 3. That for the purposes aforesaid all necessary or proper 
 
 accounts may be taken, inquiries made, and directions 
 given. 
 
134 PRECEDENTS. • 
 
 4. That the plaintiff may have such further or other relief 
 as the nature of the case may require. 
 
 X. Y. (Counsel's name.) 
 
 lu this suit the sole substantial question relates to the construction 
 of the will : this is raised by the demurrer of the defendant Jane Styles. 
 {See post, No. V. 1.) 
 
 II. 
 
 WRIT OF SUBPCENA. 
 
 "When the bill is not inserted in an original writ, as 
 provided by statute, ^ the original process to require 
 the appearance of defendant is a subpoena, in form fol- 
 lowing : — 
 
 CDommontoealtj^ of iHassac]&usett0, 
 
 Suffolk, ss. To A. B. of (addition) 
 
 Greeting : 
 
 [i,. S.J We command you that you appear before our 
 Supreme Judicial Court, next to be holden at Boston within 
 and for the county of Suffolk, on the first Tuesday of April 
 next, then and there to answer to a bill of complaint exhibited 
 against you in our said court by C. D. of (addition), 
 
 and to do and receive what our said court shall then and there 
 consider in that behalf. Hereof fail not, under the pains and 
 penalties of the law in that behalf provided. 
 
 Witness, M. M., Esquire, the first day of in the year 
 
 of our Lord one thousand eight hundred and eighty- 
 
 J. N., Clerk. 
 1 Pub. Sts. of Mass. ch. 151, § 5. 
 
PRECEDENTS. 135 
 
 III. 
 
 APPEARANCE. 
 In Equity. 
 
 ^ ®^ ) Enter an appearance for Jane Styles at the suit of 
 Styles j Jobn Styles. 
 
 Dated the eighth day of February 1882. 
 
 Henet Jones. 
 
 IV. 
 
 INTERROGATORIES. 
 See the BOl, No. I. 1. 
 
 Between John Holford and 
 EiCHAED Davis . 
 
 and 
 Henry Hawes . . . Defendant. 
 
 >■ Plaintiffs ; 
 
 Interrogatories for the examination of the above-named 
 defendant in answer to the biU of complaint of the above- 
 named plaintiffs. 
 
 1. "Was not the defendant on the first day of June 1864, 
 seised in fee simple of the house and premises being No. 9 
 
 Street in Boston in the county of Suffolk, or 
 how otherwise ? 
 
 2. Was not such indenture as in the first paragraph of 
 the said biU of complaint is mentioned to bear date the 
 first day of June 1864, of such date and made between, 
 and whether or not executed by, the parties, and of or to 
 the pui-port and effect in the said bill in that behalf men- 
 tioned, or of some other and what date and to some other, 
 and what purport and effect, or how otherwise ? Was not 
 
136 PEECEDENTS. 
 
 default made in the paj'ment of the sum of 
 
 dollars and interest on the first day in the said indenture 
 
 named or how otherwise ? 
 
 3. Did not Henry Baker in the said bill named die on 
 the seventh day of May 1867, or how otherwise? and 
 whether or not having b3' his will, bearing date the tenth 
 
 ,day of January 1867, or some other and what date, de- 
 vised to the plaintiffs and their heirs all estates vested in 
 him by way of mortgage, and appointed the plaintiffs to 
 be his executors, or how otherwise ! Was not the said 
 will, on the first day of July 1867, or when in fact, proved 
 by the plaintiffs in the Court of Probate in the county of 
 Suffolk, or where was the same proved, and by whom ; 
 and did not the plaintiffs thereby or in fact become, and 
 are they not now, the legal personal representatives of the 
 said Henry Baker, or how otherwise ? 
 
 4. Has not the defendant from time to time made 
 various, and what, small payments on account of interest 
 due on the said indenture in the said bill mentioned? Set 
 forth a full, true, and particular account of all such pay- 
 ments, and of the times when thej' respectively were made. 
 Is it not the fact that a large arrear of interest, and 
 whether or not together with the whole, or together with 
 some, and what part of the principal sum secured by the 
 said indenture, is due and owing, and whether or not to 
 the plaintiffs as such personal representatives as afore- 
 said, on the securitj- of the said indenture, or how other- 
 wise? 
 
 5. Did not the plaintiffs on the seventh day of April 
 1873, discover, and is it not the fact, that the defendant 
 intends to pull down the said house in the said bill men- 
 tioned, and has he not advertised the bricks comprising 
 the same to be sold as building materials ; and has he not 
 entered into a contract with one John Smithers, or with 
 some other, and what, person or persons for the execu- 
 tion of the work of pulling down the same ? 
 
 6. Is it not the fact that if the said house be pulled 
 
PEECEDENTS. 137 
 
 down, the said premises will be an insufficient securitj^ to 
 the plaintiffs for the monej' due on the said mortgage se- 
 curity or how otherwise, and how does the defendant make 
 out the contrary? 
 
 The defendant is required to answer alt the foregoing 
 interrogatories. 
 
 X. Y. (Counsel's name.) 
 
 The defendant's answer to these interrogatories will be found, 
 No. VII. 
 
 DEMURRERS. 
 
 1 . Demurrer for Want of Equity to Bill. 
 
 No. I. 2. 
 In Equity. 
 
 Between John Styles .... Plaintiff; 
 and 
 Jane Styles and Ann 
 
 , —.."endants. 
 Styles 
 
 I Defe) 
 
 The demurrer of the above-named defendant Jane Stj-les 
 to the bill of complaint of the above-named plaintiff. 
 
 This defendant, by protestation, not confessing or ac- 
 knowledging all or any of the matters or things in the said 
 bill of complaint contained to be true in such manner and 
 form as the same are therein set forth and alleged, demurs 
 to the said bill. And for cause of demurrer shows that 
 it appears by the plaintiff's own showing by the said bill, 
 that he is not entitled to the discoverj^ or relief prayed by 
 the bill against this defendant. Wherefore, and for divers 
 other good causes of demurrer appearing on the said bill, 
 this defendant demurs thereto. And she prays the judg- 
 ment of this Honorable Court whether she shall be com- 
 
138 PRECEDENTS. 
 
 polled to make any answer to the said bill ; and she praj-s 
 to be hence dismissed with her reasonable costs in this 
 behalf sustained. 
 
 X. Z. (Counsel's name.) 
 
 We suppose this demurrer to be overruled on argument, and the 
 plaintiff, not requiring any discovery, moves for a decree. (See No. XI.) 
 
 2. Demurrer for Want of Parties. 
 
 That it appears Taj the said bill that there are divers 
 other persons who are necessary parties to the said bill, 
 but who are not made parties thereto. And in particular 
 it appears that the said CD. has been duly adjudicated a 
 bankrupt, and trustees of his estate and effects have been 
 duly appointed ; and that it appears by the said bill that 
 such trustees are necessary parties to the said biU ; but 
 that such trustees are not made parties thereto. Where- 
 fore, etc. 
 
 3. Demurrer for Want of Equity ; the Statute of Frauds; 
 and for Want of Parties. 
 
 Barkworth v. Young, i Drew. 1. 
 
 This defendant, by protestation, etc. demurs thereto, 
 and for cause of demurrer shows that the said bill does 
 not contain any matter of equity whereon this court can 
 ground any decree or give the plaintiff any relief against 
 this defendant; and for further cause of demurrer this 
 defendant shows that it appears by the said bill that neither 
 the promise or contract which is alleged by the said bill, 
 and of which the plaintiff by the said bill seeks to have 
 the benefit, nor any memorandum or note thereof, was 
 ever reduced into writing or signed by this defendant, or 
 any person lawfully authorized thereunto, within the mean- 
 
PKECEDENTS. 139 
 
 ing of the Statute of Frauds ; and for further cause of 
 demurrer this defendant shows th&,t it appears by the said 
 bill that it is necessary that the will of the plaintiff's late 
 wife M. N., in the said bill named, should be represented 
 in this suit, but no legal personal representati\'e of the 
 said M. N. is named a party thereto ; wherefore, and for 
 divers other imperfections and good causes of demurrer 
 appearing in the said bill, this defendant demurs thereto, 
 and prays, etc. 
 
 4. Demurrer for Multifariousness. 
 
 That the said bill is exhibited against these defendants, 
 and against several other defendants to the said bill, for 
 several and distinct and independent matters and causes 
 which have no relation to each other, and in which, or iu 
 the greater part of which, these defendants are in no way 
 interested or concerned, and ought not to be impUcated. 
 Wherefore, etc. 
 
 VI. 
 
 PLEA. 
 
 1 . Plea that Defendant is not such Personal Representative 
 
 as alleged. 
 In Equity. 
 
 Between A. B Plaintiff; 
 
 and 
 C. D. and E. F. . . . Defendants. 
 
 The plea of the above-named defendant C. D. to the 
 bill of complaint of the above-named plaintiff. 
 
 I, the defendant C. D., ^by protestation, not confessing 
 or acknowledging all or any part of the matters or things 
 
 1 Pleas may be either in the first or third person. 
 
140 PliECEDENTS. 
 
 in the said bill of complaint mentioned to be true in such 
 manner and form as the same are therein set forth and 
 alleged, do plead thereto, and for plea say, that I am not 
 the executor or administrator or the legal personal repre- 
 sentative of G-. H., as in the said bill alleged, which said 
 representative or representatives ouglit to be made a party 
 or parties to the said bill as I am advised ; all which mat- 
 ters and things I aver to be true, and plead the same to 
 the said bill, and crave the judgment of this Honorable 
 Court whether I ought to be compelled to make anj' further 
 or other answer to the said bill. 
 
 X. Z. (Counsel's name.) 
 
 VII. 
 
 ANSWER. 
 
 The interrogatories to which the replies are here given will be found 
 
 ante, No. IV. 
 
 In Equity. 
 
 Between John Holford and ] n, • .-jr 
 _^ ^ > FlamUrfs ; 
 
 Richard Davis . ) 
 
 and 
 
 Henry Hawes . . Defendant. 
 
 The answer of the above-named defendant to the bill 
 of complaint of the above-named plaintiffs. 
 
 In answer to the said bill, I, Henry Hawes, say as 
 follows : — 
 
 1. I admit that I was on the first day of June 1864, 
 seised in fee simple of the premises in the first paragraph 
 of the said bill mentioned. And I admit that the indent- 
 ure in the said first paragraph of the said bill mentioned 
 was of such date, and made between such parties as in the 
 said first paragraph of the said bill alleged, and that the 
 same was executed bj' me. I believe that the said in- 
 
PRECEDENTS. 141 
 
 denture was of or to the purport and effect in the said first 
 paragraph of the said bill in that behalf set forth ; but for 
 mj- greater certainty I crave to refer to the same when 
 produced to this Honorable Court. 
 
 2. I do not know and cannot set forth as to my belief or 
 otherwise, whether the said Henry Baker died on the 
 seventh da}' of May 1867, or when he died ; nor whether 
 or not having b}' his will and whether or not dated the 
 tenth day of January 1867, or of what other date, devised 
 to the plaintiffs and their heirs, all estates vested in him 
 by the way of mortgage, or appointed the plaintiffs to be 
 his executors ; nor whether the said will was or not on the 
 first day of July 1867, or when in fact, proved by the 
 plaintiffs in the Court of Probate in the County of Suffolk, 
 or how otherwise ; nor whether the said plaintiffs thereby 
 or in fact became, nor whether they now are, the legal 
 personal representatives of the said Henry Baker ; but I 
 have no reason to doubt that the facts are as in that behalf 
 alleged in the said bill. 
 
 3. The said Henry Baker was a bachelor, without any 
 near relations, and for many years previously to the j'ear 
 186i, and thenceforward to his death, he suffered from 
 continued ill-health and infirmitj'. My mother, Sarah 
 Hawes, was in the service of the said Henry Baker as 
 housekeeper from the year 1855 down to the time of the 
 death of the said Henry Baker, and was in continual at- 
 tendance upon him ; and the said Henry Baker frequently 
 expressed to my mother his gratitude for her attention to 
 his comfort in that his illness. 
 
 4. I attained my age of twenty-one j'ears in the year 
 1864. In the early part of that year my mother ap- 
 plied to the said Henry Baker to advance me the sum 
 of dollars to enable me to enter business, which 
 he agreed to do on having the repayment thereof with in- 
 terest secured by the said indenture of the first day of June 
 1864. 
 
142 PRECEDENTS. 
 
 5. In the month of May 1864, the said Henry Baker 
 wrote, signed, and sent to me a letter bearing no date, 
 containing the words and figures following (that is to say) : 
 "All is arranged about the security you are to give me. 
 I hope I shall never have occasion to enforce it ; and that 
 nothing will compel me to change my intention of reward- 
 ing your mother and yourself for her long and faithful 
 services to me," — as by such letter when produced will 
 apfiear. 
 
 6. I have never made any payments whatsoever on 
 account of interest due on the said indenture, and I was 
 never called upon to pay interest thereon by the said Henry 
 Baker in his lifetime. 
 
 7. My mother died on the twenty-seventh day of 
 December 1S67. 
 
 8. Under the circumstances hereinbefore appearing I 
 submit that nothing is due on the said indenture from me 
 to the plaintiffs, whether as such alleged . personal repre- 
 sentatives or otherwise, but I admit that nothing has ever 
 been paid on account of the principal money secured 
 thereby. 
 
 9. I do not know, and cannot set forth, as to my belief 
 or otherwise, whether the plaintiffs did on the seventh day 
 of April 1873, discover, but I admit that it is the fact, that 
 I intend to pull down the said house in the said biU men- 
 tioned, and that I have advertised the bricks composing 
 the same to be sold as building materials. I denj- that it 
 is true that I have entered into a contract with John 
 Smithers or with any other person for the execution of the 
 work of pulling down the saime. 
 
 10. I admit that if the said house be pulled down the 
 said premises would be an insufficient security for the 
 sum of dollars, with interest thereon at the rate of 
 
 per centum per annum from the first day of June 
 1864. But I submit that I have a right to pull down the 
 said house and to sell the bricks composing the same as 
 building materials, and that the injunction awarded against 
 
PRECEDENTS. 143 
 
 me by this Honorable Court on the sixteenth day of April 
 1873, ought to be dissolved, and that the said bill ought to 
 be dismissed with costs. 
 
 X. Z. (Defendant's Counsel.) 
 
 To this answer the plaintiffs reply {see post, No. XII. ). 
 
 VIII. 
 
 DEFENDANT'S OATH TO ANSWER. 
 
 Is that your name and handwriting? You do swear that 
 so much of this answer as concerns your own acts and 
 deeds is true to the best of j'our knowledge, and that so 
 much thereof as concerns the acts and deeds of any other 
 person or persons therein named j'ou believe to be true. 
 So help you God. 
 
 IX. 
 
 AFFIDAVIT OF DEFENDANT MAKING 
 ANSWER EVIDENCE. 
 In Equity. 
 
 Between A. B Plaintiff"; 
 
 and 
 C. D Defendant. 
 
 I, the above-named defendant, C. D. make oath and 
 say : — 1. All the contents of my answer, sworn and filed 
 in this cause on the day of , are true as 
 
 therein set forth, and I am desirous to read the same as 
 evidence in my behalf at the hearing of this cause. 
 
144 PRECEDENTS. 
 
 X. 
 
 EXCEPTIONS TO ANSWER. 
 
 In Equity. 
 
 Between A. B Plaintiff; 
 
 and 
 C. D. and E. F. . . . Defendants. 
 
 Exceptions taken by the above-named plaintiff to the 
 answer put in by the above-named defendant C. D. to the 
 said plaintiff's bill of complaint. 
 
 First Exception. For that the said defendant C. D. 
 has not answered and set forth according to the best and 
 utmost of his knowledge, remembrance, information, and 
 belief, — Whether the said testator, etc. , [following the 
 interrogatory] . 
 
 Second Exception. For that the said defendant C. D. 
 hath not in manner aforesaid set forth, — Whether, etc. 
 
 In all which particulars the said plaintiff humbly in- 
 sists that the said defendant C. D.'s answer is altogether 
 evasive, imperfect, and insufficient. Wherefore the said 
 plaintiff doth except thereto, and humbly prays that the 
 said defendant CD. may be compelled to amend the same, 
 and put in a full and sufficient answer to the said bill of 
 complaint. 
 
 X. Y. (Plaintiff's Counsel.) 
 
PRECEDENTS. 145 
 
 XI. 
 
 NOTICE OF MOTION" FOE, A DECREE. 
 
 The demuiTer in Styles v. Styles is overruled : no interi'ogatories are 
 filed, and no voluntary answer put in. The plaintiff moves for a de- 
 cree. (See the Bill, No. I. 2.) 
 
 In Equity. 
 
 Between John Styles . . . Plaintiff; 
 
 and 
 
 Jane Styles and Ann ) t, /• j ^ 
 y Uefendants. 
 Styles . . . ) '^ 
 
 Take notice, that this Honorable Court will be moved 
 on the twentj'-first day of April next, or so soon after as 
 counsel can be heard, that it may be declared that ac- 
 cording to the true construction of the will of Charles 
 Styles the elder, in the bill of complaint in this cause 
 mentioned, the defendant Ann Styles and Charles Styles 
 the younger in the said bill mentioned became entitled to 
 such residue as in the said bill mentioned as tenants in 
 common of equal moieties thereof in remainder expec- 
 tant on the death of the defendant Jane Styles. And that 
 an account be taken of the personal estate of the said 
 Charles Stj'les the elder come to the hands of the said 
 defendant Jane Styles, or of any person by her order or 
 for her use, and of his funeral and testamentary expenses 
 and debts, and that the clear balance of such estate may be 
 ascertained. 
 
 Dated this nineteenth day of March 188 . 
 Yours, etc. 
 
 John Smith, 
 Plaintiff's Solicitor. 
 
 10 
 
146 PEEOEDENTS. 
 
 To Mr. Henry Jones, solicitor for the defendant Jane 
 
 Styles. 
 To Mr. Thomas Crosthwaite, solicitor for the defendant 
 Ann Stj'les. 
 On the hearing of the above motion the plaintiff will 
 read the following affidavit : — 
 
 Affidavit of the said John Smith, filed the eighteenth 
 day of March 188 . 
 
 This affidavit will verify tie bill from the lirst to the eighth para- 
 graphs inclusive ; there being no question as to the facts, this will 
 be sufficient to entitle the plaintiff to the decree found post, No. 
 XIV. 3. 
 
 XII. 
 REPLICATION. 
 
 In Eqihtt. 
 
 Between A. B Plaintiff"; 
 
 and 
 C, D., E. F. and G. H. . Defendants. 
 
 The plaintiff hereby joins issue with the defendant C. D., 
 and will hear the cause on bill and answer against the de- 
 fendant E. F. and on the order to take the bill as con- 
 fessed against the defendant G. H. 
 
 In the case of Holford v. Hawes, we suppose the plaintiffs to reply to 
 the answer given previously, No. VII. Evidence is then gone into. 
 
PRECEDENTS. 147 
 
 XIII. 
 
 AFFIDAVIT PROVING EXHIBIT. 
 
 In Equity. 
 
 Between A. B Plaintiff; 
 
 and 
 C. D. and E. F. . . DefendanU. 
 
 I, G. H. of etc. make oath and say, that the paper 
 ■writing marked with the letter A, produced and shown to 
 me at the time of swearing this aflSdavit, is a true copy of 
 an entrj' in the Register Book of Baptisms kept in and for 
 the town of, etc. for the j^ear 1810, so far as relates to the 
 baptism of the person there named, and that 1 did on, etc. 
 examine the said copy or exti-act with the original entry in 
 the said Register Book of which it purports to be a copy. 
 
 And I s&j that I know and am well acquainted with 
 Thomas Harris, the person named in the said copy or ex- 
 tract, and that he is the same person as Thomas Harris 
 mentioned and referred to in the pleadings in this cause. 
 
 All the facts herein deposed to are within my own 
 knowledge. 
 
 C Sworn at, etc. in the county of, 
 G. H. ■< etc. this tenth day of April 
 (. 188 , before me, 
 
 K. L. 
 A Commissioner to administer 
 Oaths in Chancery. 
 
148 PEECEDENTS. 
 
 XIV. 
 
 DECREES AND ORDERS. 
 
 1. Decree in Foreclosure Suit. 
 
 See the Pleadings, ante, No. I. etc. 
 
 Between John Holfoed and \ pj • ,-jf . 
 EiciiAED Dayis .1 
 
 and 
 Henry Hawes . . Defendant. 
 
 This cause coming on this present day to be heard and 
 debated before this court, in the presence of counsel 
 learned on both sides, and the pleadings in this cause 
 being opened, upon debate of the matter and the proofs 
 in the cause [«. e. the depositions, which are the only 
 evidence,] read, and what was alleged by counsel on both 
 sides, the court doth order and decree, that the injunction 
 awarded against the defendant, Henry Hawes, by an order 
 made in this cause, dated the sixteenth day of April 1873, 
 be continued. And this court orders and decrees that 
 an account be taken of what is due to the plaintiffs for 
 principal and interest on the mortgage in the pleadings 
 mentioned, and for their costs of this suit, such costs to be 
 taxed by the proper taxing master. And upon the defend- 
 ant paying to the plaintiffs what shall be certified to be due 
 to them for principal, interest, and costs as aforesaid, 
 within six months after the master in chancery shall have 
 made his certificate, at such time and place as shall be 
 thereby appointed, this court doth order and decree that 
 the plaintiffs reconvey the mortgaged premises free and 
 clear of and from all incumbrances done by them or by 
 Henr}' Baker in the pleadings in this cause mentioned, or 
 any persons or person claiming by, from, or under them, 
 or any of them, and deliver up aU deeds and writings 
 
PEEOEDENTS. 149 
 
 in their custody or power relating thereto on oath, to the 
 defendant or to -vvhom he shall appoint. But in default of 
 the defendant's pajdng to the plaintiffs such principal, in- 
 terest, and costs as aforesaid, by the time aforesaid, this 
 court doth further order and decree that the defendant 
 from thenceforth stand absolutely' debarred and foreclosed 
 of and from all right, title, interest, and equity of redemp- 
 tion of, in, and to the said mortgaged premises. And in 
 taking the said account, all just allowances are to be made ; 
 and all parties are to be at liberty to apply to the court as 
 they shall have occasion. 
 
 Under this decree the accounts are taken, and the master in chan- 
 cery certifies that is due : the defendant neglects to pay this 
 sum : whereupon he is finally foreclosed by the following order, may on 
 motion of course, on which the defendant does not appear. 
 
 2. Final Foreclosure. 
 
 V Plaintiffs ; 
 
 Between John Holfoed and 
 EiCHAED Davis 
 
 and 
 Henky Hawes . . Defendant. 
 
 Upon motion this day made hy Mr. X. Y. of counsel for 
 the plaintiffs, it was alleged that by the decree made at the 
 hearing of this cause, dated the ninth daj' of June 1873, it 
 was ordered that an account be taken of what was due to 
 the plaintiffs on the mortgage in the pleadings mentioned, 
 and to tax them their costs of this suit : that in pursuance 
 of the said decree the master made his certificate, dated 
 the second day of December 1873, and thereby certified 
 that there would be due to the plaintiffs for principal, in- 
 terest, and costs on their sa,id mortgage, on the second day 
 of June 1874, the sum of dollars, which the said de- 
 
 fendant was thereby appointed to pay to the plaintiffs on 
 the said second day of June 1874. That it appears by the 
 
150 PEECEDENTS. 
 
 afQdavit of John Smith that the said defendant did not pay 
 the said money ; and it appears by the said aflfldavit, and 
 also by the affidavit of the plaintiflfs that the same, or any 
 part thereof, hath not since been paid to the plaintiffs, or 
 either of them, or to the said John Smith. It was there- 
 fore prayed that the defendant may stand absolutely fore- 
 closed. "Whereupon, and upon hearing the said decree, 
 dated the ninth day of June 1873, the said certificate dated 
 the second day of December 1873, the said affidavit of the 
 said John Smith, the said affidavit of the plaintiffs, and 
 what was alleged by counsel for the plaintiffs ; it is ordered 
 that the defendant do from henceforth stand absolutely de- 
 barred and foreclosed of and from all right, title, interest, 
 and equity of redemption of, in, and to the said mortgaged 
 premises. 
 
 3. Minutes of Decree in an Administration Suit. 
 
 See tlie Bm, No. I. 2. 
 
 Styles ^ Declare that according to the true construction of 
 '»■ r the will of Charles Styles the elder, the testator 
 Styles. J jjj ^jjg pleadings mentioned, the defendant Ann 
 Styles, and Charles Styles the younger, in the pleadings 
 mentioned, became entitled to the residue of the personal 
 estate of the said Charles Styles the elder, after payment 
 thereout of his funeral and testamentary expenses and 
 debts, as tenants in common of equal moieties thereof in 
 remainder expectant on the death of the said defendant 
 Jane Styles. 
 
 Let the following accounts and inquiries be taken and 
 made (that is to say) : — 
 
 1 . An account of the personal estate of the said Charles 
 Styles the elder, come to the hands of the defendant Jane 
 Styles, or to the hands of any other person or persons by 
 her order or to her use. 
 
 2. An account of the testator's debts. 
 
PEECEDENTS. 151 
 
 3. An account of the testator's funeral expenses. 
 
 4. An inquiry what parts, if anj', of the testator's per- 
 sonal estate are outstanding and undisposed of. 
 
 And let the testator's personal estate be applied in pay- 
 ment of his debts and funeral espenses in a due course of 
 administration. 
 
 Just allowances. 
 
 Adjourn further consideration. 
 
 Liberty to apply. 
 
 4. Order for Injunction. 
 
 See the Notice of Motion, ^ost, No. XXI. 
 
 Between John HoLroED and 1 -ni • .-^ 
 EiCHAED Davis . J 
 
 and 
 Henkt Hawes . . Defendant. 
 
 Upon motion this day made by Mr. J. S. and Mr. X. Y., 
 of counsel for the plaintiffs, and upon hearing Mr. X. Z. of 
 counsel for the defendant, and upon reading an affidavit 
 of John Smith, filed the tenth day of April 1873, and 
 an affidavit of the defendant, filed the fourteenth day of 
 April 1873, this court orders that an injunction be awarded 
 to restrain the defendant, Henry Hawes, his servants, 
 agents, and workmen, from pulling down, or suffering to 
 be pulled down, the house in the bill of complaint in this 
 cause mentioned, being No. 9 Street in Boston 
 
 in the county of Suffolk, and from selling the materials 
 whereof the said house is composed, until the hearing of 
 this cause, or until the further order of this court. 
 
 Notice of this injunction is at once served: the writ itself wUl be 
 found No. XVIII. 
 
152 PEECEDENTS. 
 
 5. Order of Revivor. 
 
 Between A. B. Plaintiff, and C. D. Defendant; 
 
 and 
 Between A. B. Plaintiff, and E. F. Defendant. 
 
 Upon motion, etc. of counsel for the plaintiff, it was 
 alleged that the said plaintiff filed his bill of complaint in 
 this suit, on, etc., and that on, etc. the said C. D. died, 
 and that the said E. F. has become and is the executor of 
 the said G. D. That the said suit and proceedings hav- 
 ing become abated in manner aforesaid, the plaintiff is 
 desirous of reviving the same. It was therefore prayed 
 that the said suit and proceedings may stand revived, and 
 be in the same plight and condition that the same were 
 in at the time of the said abatement; which is ordered 
 accordingly. 
 
 XV. 
 
 ISSUE.i 
 
 In the Supreme Judicial Court. 
 Middlesex } Whereas A. B. affirms, and C. D. denies, 
 
 to wit. I tijat, etc. and the court is desirous of ascer- 
 taining the truth by the verdict of a jury, and both parties 
 pray that the same may be inquired of by the country : 
 Now let a jury, etc. 
 
 1 The decree of a judge ordering an issue to a jury in a suit in equity 
 is subject to the right of appeal, but not to exception. Stockbridge 
 Iron Co. v. Hudson Iron Co. 102 Mass. 45. Brooks v. Tarbell, 103 
 Mass. 496. Pub. Sts. of Mass. ch. 151, § 16. 
 
PEECEDENTS. 15c 
 
 XVI. 
 CERTIFICATE OF A MASTER IN CHANCERY. 
 
 See the Minutes of the Decree, No. XIV. 3. 
 
 In Equity. 
 
 Between John Styles . . Plaintiff"; 
 and 
 Jane Styles and 
 
 ,ES and 1 n ^ ^ ^ 
 > Uefendants. 
 
 ES . . J 
 
 Ann Styles 
 
 In pursuance of directions given to me \>y the court, I 
 hereby- certify, that the result of the accounts and inquiries 
 which have been taken and made in pursuance of the 
 decree in this cause, dated the first day of May 1873, is 
 as follows : — 
 
 1. The defendant Jane Styles, the executrix of Charles 
 Styles the elder, the testator, has received personal estate 
 to the amount of dollars, and has paid or is en- 
 
 titled to be allowed on account thereof sums to the amount 
 of dollars, leaving a balance due from her of 
 
 dollars on that account. 
 The particulars of the above receipts and paj-ments 
 appear in the account marked A, verified by the affidavit 
 of the said Jane Styles, filed on the nineteenth day of 
 June 1873, and which account is to be filed with this cer- 
 tificate, except that in addition to the sums appearing on 
 such account to have been received, the said Jane Stj'les 
 is charged with the sums appearing in the schedule hereto, 
 and except that I have disallowed the items of disburse- 
 ment in the said account, numbered 3 and 12. 
 
 2. The testator was at the time of his death indebted to 
 various persons in various sums, amounting in the whole 
 to dollars. These debts have been paid by the 
 
 said executrix, and I have allowed her the amount 
 thereof in the said account of personal estate. No debts 
 are now due from the estate of the testator. 
 
154 PRECEDENTS. 
 
 3. The funeral expenses of the testator amount to the 
 sum of dollars, which I have allowed the said ex- 
 ecutrix in the said account of personal estate. 
 
 4. No part of the testator's personal estate is out- 
 standing and undisposed of. 
 
 The evidence produced on these accounts and inquiries 
 consists of the affidavit of the said Jane Styles. 
 Dated this sixth day of November 1873. 
 
 C. C. 
 
 Approved this sixth day of November 1873. 
 
 XVII. 
 NOTICE OF MOTION FOR AN INJUNCTION. 
 
 See the Bill, ante, No. I. 1. 
 
 In Equity. 
 
 Between John Holford and 
 EiCHAED Davis 
 
 and 
 Henry Hawes . . Defendant. 
 
 ^"^^X Plaintiffs; 
 
 Take notice, that this Honorable Court will be moved, on 
 the sixteenth day of April next, or so soon after as counsel 
 can be heard, by Mr. J. S. of counsel for the plaintiffs, 
 that an injunction maj' be awarded against the defendant 
 Henry Hawes to restrain him, his servants, agents, and 
 workmen from pulling down, or suffering to be pulled 
 down, the house in the bill of complaint of men- 
 
 tioned, being No. 9 Street, in Boston in the county 
 
 of Suffolk, and from selling the materials whereof the said 
 house is composed, until the court shall make other order 
 to the contrary. 
 
 Dated this tenth day of April 1873. 
 Yours, etc. 
 
 John Smiih, 
 Plaintiff's Solicitor. 
 
PRECEDENTS. 155 
 
 To Mr. Henry Jones, defendant's solicitor, 
 
 On the hearing the above motion, the plaintiffs will road 
 
 the following affidavit. 
 
 Aflidavit of the said John Smith, filed the ninth day of 
 
 AprU 1873. 
 
 The order made on this motion is given ante. No. XIV. 4. 
 
 XVIII. 
 
 WRIT OF INJUNCTION". 
 
 See the Order, ante, No. XIV. 4. 
 
 To Henry Hawes, his servants, agents, and workmen. 
 — Whereas, upon opening the matter unto us in our 
 Court of Equity, on the sixteenth day of April in the 
 3'ear of our Lord ' by Mr. J. S. and Mr. X. Y., 
 of counsel for the plaintiffs, in a cause wherein John Hol- 
 ford and Richard Davis are plaintiffs, and j'ou, the said 
 Henrj' Hawes, are defendant, it was ordered that, etc. 
 We therefore, in consideration of the premises, do hereby 
 strictly enjoin and restrain you, the said Henry Hawes, 
 your servants, agents, and workmen, under the penalty 
 of dollars {any large nominal sum), to be levied 
 
 on your and each of j'our lands, goods, and chattels to 
 our use, from pulling down, etc. Witness, etc. 
 
 Clerk 
 
156 PKECEDENTS. 
 
 TRUSTS. 
 
 Bill to establish a Trust on the Language of a Deed. 
 
 Liddard v. Liddard, 28 Beav. 266. 
 
 Between A. B. and C Plaintiffs, 
 
 and 
 D Defendant. 
 
 1. W. bad four children only, viz. the above plaintiffs 
 and the defendant. 
 
 2. The said W. executed in the year a deed, by 
 which he assigned certain leasehold property to trustees, 
 upon- trust for himself for life, and after his death upon 
 trust (until his eldest son D. the defendant, should attain 
 the age of twenty-one) , to pay the rents, issues and profits 
 to his, the settlor's, widow, for the maintenance of herself, 
 and for the maintenance and education of the defendant 
 and the plaintiffs, and of any future born children of the 
 settlor. 
 
 3. By the said deed it was further declared, that if and 
 when the defendant D. should attain the age of twenty-one 
 years, the said leaseholds should be held in trust for the 
 said defendant, and should be assigned accordingly', but so 
 that the wish and desire of him the settlor, thereby ex- 
 pressed and declared by him, that the plaintiffs and any 
 future born children of him the settlor and the settlor's 
 wife, " might be allowed by the defendant D. to participate 
 with him in the same," should be particularly observed and 
 attended to by the defendant D. 
 
 4. W. the said settlor, died on the day of 
 
 in the year , and his said wife died on the day 
 
 of in the year . The defendant attained his 
 
 age of twenty-one years on the day of in the 
 
 year , and the trustees of the said settled premises, 
 
 shortly afterwards conveyed the said premises to the de- 
 
PRECEDENTS. 157 
 
 fendant, " subject to the right, if any, of the plaintiffs to 
 participate therein." 
 
 5. The plaintiffs contend that they are entitled to share 
 the said settled premises equally- ■with the defendant ; and 
 that the defendant is a trustee for the plaintiffs of their 
 respective shares ; but the defendant refuses to make any 
 such division, and insists that he is absolutely entitled 
 for his own use and benefit, to the whole of the said 
 premises. 
 
 The plaintiffs pray as follows : — 
 
 1. That it may be declared, that upon the true construc- 
 
 tion of the aforesaid deed made by the said W. the 
 plaintiffs and the defendant are tenants in common 
 of the premises comprised in the said deed in equal 
 shares ; and that the court will be pleased to give 
 such directions acccordingly, as to the court shall 
 seem fit and proper. 
 
 2. Such further or other relief as the nature of this case 
 
 may require. 
 
 Answer. 
 
 1. The defendant admits the truth of the statements 
 contained in paragraphs 1, 2, 3, and 4 of the plaintiffs' 
 bill. 
 
 2. The defendant submits and insists, that upon the true 
 construction of the deed referred to in the plaintiffs' bill, 
 and made hy the said W. he the defendant is absolute!}' 
 entitled for his own sole use and benefit, to the premises 
 in the said deed referred to ; and that the plaintiffs have 
 not, nor has either of them, any legal, equitable, or other 
 right or title thereto. ^ 
 
 1 In this case it seems unnecessary for the plaintiffs to reply, as the 
 question is purely a question of law on tlie construction of a deed. 
 
158 PEECEDENTS. 
 
 Bill to establish a Trust created by Parol. 
 
 Crabb v. Crabb, 1 Myl. & K. 511. 
 
 Between A Plaintiff, 
 
 and 
 C, D., E. and X. . . Defendants. 
 
 1 . The father of the plaintiff (hereinafter called the tes- 
 tator) b}' his will, made and executed on the daj' of 
 
 in the year , bequeathed all his property to 
 
 the plaintiff and to the testator's three daughters, the 
 defendants C, D. and E. in manner therein mentioned. 
 Some years afterwards, viz. in the year , the testator 
 transferred (in the month of February of the said year) 
 a sum of £10,000 3 per Cent. Consols (forming part of a 
 lai'ge sum of like stock standing in the testator's name) 
 into the joint names of the plaintiff and of the defendant 
 X. one of the partners in the banking firm of X. & Co. 
 who were then and from thence down to the time of the 
 testator's death, the bankers as well of the testator, as of 
 the plaintiff. 
 
 2. In the month of July of the said year the 
 testator had an interview with the said X. and verbally 
 directed that the half-yearly dividends upon the said 
 £10,000 stock (which had then been recently received by 
 and carried to the account of the testator) should be trans- 
 ferred to the account of the plaintiff, and that the future 
 dividends should be placed to the same account. This was 
 done, and under the authority of the said verbal direction 
 of the testator, the said dividends were regularly received 
 by the plaintiff during the life of the testator ; but no fur- 
 ther or other intimation of the intention of the testator in 
 transferring the said stock in manner aforesaid, was made 
 by the testator, nor was any direct and specific declaration 
 of trust as to the said stock, made by him. 
 
 3. years later, on the 19th of July, the testator 
 
PRECEDENTS. 159 
 
 made two codicils to his will, by one of which, after giving 
 certain pecuniary legacies to his daughters, the testator be- 
 queathed the residue of his fortune to the plaintiff for life 
 (with certain remainders over, in the said codicil described) , 
 and appointed his son the plaintiff, and the said X. his ex- 
 ecutors. The other codicil began with the following words : 
 — "I have appointed A. (the plaintiff) and X. my execu- 
 tors to mj- last will in a codicil made this day, viz. that I 
 have made in the 3 per Cent. Consols an account in the 
 names of A. (the said plaintiff) and of X. that is, for 
 , and I also desire that mj- executors sell 
 my East India as well as my Bank Stock, to be placed in 
 the consols, for and 6n account of mj' son (the plaintiff) 
 and family-." At the time when tlie said two codicils were 
 executed, the plaintiff was a widower, upwards of forty 
 years old. The plaintiff's said father, the testator, died 
 in the j^ear 
 
 4. The plaintiff submits to the court that, having regard 
 to the facts hereinbefore stated, and having regard in par- 
 ticular to the verbal direction given (as hereinbefore stated) 
 b}' the testator to the said X. and to the subsequent con- 
 duct of the testator hereinbefore stated in respect of future 
 dividends on the said stock ; the said £10,000 3 per Cent. 
 Consols were intended by the testator as a gift in the 
 nature of an advancement, to the plaintiff; and that the 
 plaintiff is entitled thereto in addition to the other gifts in 
 favor of the plaintiff, made by the said testator's said will 
 and codicils. 
 
 The plaintiff prays as follows : — 
 
 1. That the court will be pleased to declare, that the 
 plaintiff is absolutely entitled to the said sum of 
 £10,000 3 per Cent. Consols as a gift or advancement 
 made to him by the testator, in addition to the other 
 bequests to the plaintiff ; and to declare that the said 
 stock is held by the executors and trustees of the 
 testator's will, in trust for the plaintiff absolutely ; 
 
160 PRECEDENTS. 
 
 and that the court will be pleased to decree accord- 
 ingly. 
 2. Such further or other, etc. 
 
 Answer op C, D. and E. 
 
 • 
 
 These defendants admit the truth of the facts Stated 
 in paragraphs 1, 2 and 3 of the plaintiff's bill; and upon 
 that statement of facts, they the defendants, submit to the . 
 court, firstly : that the transfer of the said sum of £10,000 
 3 per Cent. Consols, and the subsequent dealings therewith 
 by the testator set forth in the bill of the plaintiff, did 
 not operate as a gift or advancement to the plaintiff ; and, 
 secondly-, that if the court shall be of opinion that the said 
 sum is a gift or in the nature of advancement to the 
 plaintiff ; then that, upon the true construction of the tes- 
 tator's second codicil, the plaintiff ought to be put to his 
 election between the said sum of £10,000 stock, and the 
 benefits given to him under the testator's second codicil.* 
 
 SPECIFIC PERFORMANCE. 
 
 Bill to Enforce Specific Performance of a Contract. 
 
 Howell V. George, 1 Madd. 1. 
 
 Between A Plaintiff, 
 
 and 
 B Defendant. 
 
 1. By an agreement made on the day of 
 
 in the j^ear , between the plaintiff and the defendant, 
 
 the defendant (in consideration of a nominal sum paid to 
 
 1 No reply is necessary, as the question is one of pure construction. 
 Nor does it^eem necessary for the defendant X. to file any defence, 
 unless the plaintiflf expressly requires it ; as X. being a trustee, would 
 merely submit all questions to the court. 
 
PRECEDENTS. 161 
 
 him by the plaintiff on the execution of the agreement, 
 and of the further sums of £1,498 and £5,000 to be paid 
 at the times mentioned in the said agreement, with interest 
 thereon) covenanted with the plaintiff that he, the defend- 
 ant, would on the daj' of in the year , 
 convey to the plaintiff, his heirs and assigns, or to such 
 other person or persons as he or they should direct or ap- 
 point, certain property in the said agreement described. 
 
 2. At the period named in the said agreement for carrj'- 
 ing the same into effect, the plaintiff applied to the defend- 
 ant to perform his said agreement, and to convey to the 
 plaintiff the said premises, the plaintiff being then ready 
 and willing and offering to pay the said purchase-money 
 agreed upon, to the defendant. 
 
 3. The defendant then refused and still refuses to per- 
 form the said agi-eement ; alleging that under a settlement 
 made previously to his, the defendant's, marriage, he, the 
 defendant, is only tenant for life of the said premises, with 
 remainder to his wife for life, and remainder to his, the 
 defendant's, first and other sons as tenants in tail general ; 
 and alleging further that his said wife and his eldest son 
 (who is now tenant in tail in remainder) refuse to join in 
 any conve3'ance in fee of the said premises ; and the de- 
 fendant alleges that under the said circumstances, he is 
 wholly unable to convey the said premises to the plaintiff 
 in fee. 
 
 4. By the said settlement referred to by the defendant, 
 it is provided, among other things, that in case (when the 
 defendant shall be in possession of the said premises, 
 under the limitations of the said settlement) he shall settle 
 and convey other lands and premises of equal or greater 
 value than the lands settled as aforesaid, upon and for the 
 like uses and intents as are expressed in the said settle- 
 ment ; then the said settlement and the uses thereof shall 
 cease and determine, and the property thereby settled, 
 shall go and be to the use of the defendant and his heirs 
 absolutely. 
 
 11 
 
162 PRECEDENTS. 
 
 5. The defendant is of ability to carry into effect the 
 aforesaid proviso in the said settlement, and to acquire an 
 estate in fee simple in the premises which are the subject 
 of the aforesaid agreement with the plaintiff; and is of 
 ability, bj- so doing, to perform his said agreement with 
 the plaintiff. 
 
 The plaintiff praj-s : — 
 
 1. Specific performance by the defendant, of the said 
 
 agreement hereinbefore referred to in paragraph 1, 
 and that the defendant may be decreed to do and 
 perform all necessary acts, for enabling him to make 
 to the plaintiff a good title to the said premises, and 
 a good and suflBcient convej-ance thereof to the plain- 
 tiff, his heirs and assigns, or as the plaintiff shall 
 otherwise direct and appoint. 
 
 2. Such further or other relief, etc. 
 
 Answer. 
 
 1 . The defendant admits that he entered into the agree- 
 ment referred to in paragraph 1 of the plaintiff's bill. At 
 the time when the defendant did so, he believed that he 
 had absolute power and control over the premises referred 
 to in the said agreement. It is only recently that he has 
 discovered, as the fact is, that under the settlement re- 
 ferred to in the plaintiff's bill he, the defendant, is 
 merely tenant for life of the said premises, and that his 
 wife is tenant for life in remainder expectant upon his 
 decease, with remainder to his first and other sons in tail 
 general, and remainder over. The defendant's eldest son 
 has attained his age of twenty-one years, and he and 
 his, the defendant's wife, positively refuse to concur in 
 making, or permitting to be made, any conveyance to 
 the plaintiff, of the premises the subject of the said agree- 
 ment. 
 
 2. The defendant is not of abilitj' to carry into effect the 
 proviso in the said settlement referred to in paragraph 4 
 
PEECEDENTS. 163 
 
 of the plaintiff's bill ; and the defendant submits further, 
 that the said proviso is too vague in its terms for the court 
 to enforce performance of it hj the defendant. 
 
 Replication. 
 
 The plaintiff joins issue upon the answer of the de- 
 fendant.^ 
 
 ^U far Specific Performance. 
 
 Storer v. Great Western Eailway Co. 3 Railway Cases, 106. 
 
 Between A Plaintiff", 
 
 and 
 
 The Eailway Co. and 1 n ^ j . 
 „„,„'' }■ Defendants. 
 
 G., F. and H J ■' 
 
 1. The defendants, the Railway Company, became 
 an incorporated company in the year under and by 
 virtue of an Act of Parliament made and passed in that 
 year ; and divers persons were thereupon or shortly after- 
 wards, duly appointed directors of the said company. 
 
 2. By the said Act it was, among other matters, enacted, 
 " that all contracts and agreements in writing relating to 
 the affairs of the said company, which should be signed 
 by three of the directors of the company, should be 
 binding on the company and all other parties thereto, 
 their respective successors, etc. ; and that actions might 
 be maintained thereon and damages and costs recovered 
 against the company and any of the parties thereto fail- 
 ing in the execution thereof;'' and there were various 
 other provisions in the said Act to which the plaintiff 
 craves leave to refer. 
 
 3. Previously to the year the plaintiff was seised 
 in fee of a mansion, park and lands, near in the 
 
 lln a case of this kind there is some conflict as to facts, and there- 
 fore a replication is proper. 
 
164 PRECEDENTS. 
 
 county of . In tiiat year the company applied to 
 
 Parliament for powers to alter their line ; and by the bill 
 brought into Parliament for that purpose by the company, 
 it was proposed to pass the company's newly intended line 
 across and through the plaintiff's said park and lands. 
 
 4. The plaintiff opposed the passing of the said bill 
 containing such powers as aforesaid, and the company, to 
 induce the plaintiff to withdraw his opposition, entered 
 into an agreement with the plaintiff, dated the day 
 of in the said 3'ear , which agreement was 
 duly signed and executed by the defendants G., F. and 
 H., three of the directors of the said company, and by the 
 plaintiff. 
 
 The said agreement contained divers clauses for reg- 
 ulating the width of the laud to be taken hy the company, 
 and the level of the railway, and the erection of bridges 
 and buildings and other matters. And, among other 
 stipulations, it was agreed that " the company should con- 
 tract and maintain forever one neat archway sufficient to 
 permit a loaded carriage of hay to pass under the railway, at 
 such place as the plaintiff, his heirs or assigns should 
 think most convenient, in his pleasure grounds ; and should 
 form and complete the approaches to such archway ; " with 
 other subsidiary stipulations as to bridges, not bearing 
 immediately upon this action. And the company agreed 
 to pay to the plaintiff £10,000 for the purchase-money of 
 such land as the company should take under the said 
 agreement. And it was further agreed that the company 
 should derive no right as against the plaintiff to enter upon 
 any of the lands, until all the stipulations in the agreement 
 contained, which were from their nature at the time capa- 
 ble of being performed, should be performed. The said 
 agreement Y'as approved of and adopted by the company. 
 
 5. The plaintiff, relying on the said agreement, withdrew 
 his opposition to the company's aforesaid bill in Parlia- 
 ment, and the said bill was passed and became an Act 
 of Parliament. 
 
PRECEDENTS. 165 
 
 6. The company have entered upon the plaintiff's land 
 and constructed their railway across such land, and the 
 plaintiff" has duly conveyed the said land to the companj^, 
 and has on his part duly done and performed all the 
 terms of the said agreement which ought to be performed 
 on his part. 
 
 7. The plaintiff applied to the companj^ in the month of 
 
 of the present year to make such archway as the 
 company covenanted to make as aforesaid, and gave due 
 notice to the company of the place at which he considered 
 and considers it to be most desirable ; and pointed out to 
 the company's surveyor the precise place at which he the 
 plaintiff desired to have the archway constructed. But the 
 company has refused and still refuses to make such archwa^'. 
 
 The plaintiff praj's as follows : — 
 
 1. That it may be declared that the said agreement of 
 
 the of is binding on the said company, 
 
 and also personally on the defendants G., F. and H. ; 
 and that the said company and the said other defend- 
 ants, may be decreed specifically to perform the said 
 agreement, and all and every the covenants and stip- 
 ulations on their part therein contained and ex- 
 pressed. 
 
 2. Such further or other, etc. 
 
 Answer. 
 
 1. The defendants the said Railway Company and 
 
 the defendants G., F. and H. say they admit the truth of 
 the plaintiffs statement in paragraphs 1 to 6, both inclu- 
 sive ; and tliey admit that the plaintiff applied to the de- 
 fendants to make such archwaj^ as the company covenanted 
 to make under the said agreement ; but these defendants 
 deny that the plaintiff gave the defendants such notice as 
 is mentioned in paragraph 7 of the claim, or pointed out 
 to the defendants' surveyor or to any person being the 
 company's agent, the precise place at which he the plaintiff 
 
166 PEEOEDENTS. 
 
 desired to have the said archway constructed. And the 
 defendants deny that the plaintiff has duly done and per- 
 formed, all the terms of the said agreement which ought to 
 be performed on his part. 
 
 2. The defendants have not refused to perform the said 
 agreement ; on the contrary, they have always been ready 
 and willing to construct such archway under the said rail- 
 way-, on the plaintiff selecting the place on which the same 
 is to be made, and giving due notice to the defendants. 
 But the defendants say that they are unable to state whether 
 as much land was conveyed to them by the said indenture, 
 as would be required for all the purposes mentioned in the 
 said agreement ; and that if the plaintiff insists upon an 
 archway being made under the said railway, more land will 
 be required by the company. 
 
 Eeplication. 
 
 It is not the fact that the plaintiff gave no such 
 notice to the company as is referred to in paragraph 7 of 
 the plaintiff's bill. The plaintiff did make such application 
 to the company as is mentioned in paragraph 7 of the bUl, 
 and did on the day of , in the year , 
 
 meet the survej^or and agent of the company on the sub- 
 ject of the said archwaj^ at \^place of rneeting], and did then 
 and there point out to the said surveyor, the precise place 
 at which he the plaintiff desired the archway to be con- 
 structed. 
 
PEECEDENTS. 167 
 
 BiU to enforce Specific Performance by an Injunction. 
 
 Lumley v. Wagner, 1 De G. M. & G. 604. 
 
 Between A Plaintiff, 
 
 and 
 C, D. and E Defendants. 
 
 1. The plaintiff is the lessee of the theatre, at 
 which operas and other musical entertainments are per- 
 formed. The defendant C. is a public singer of great 
 reputation. 
 
 2. On the day of in the j-ear , the defendant 
 C, with the consent of her father the defendant D., en- 
 tered into a written agreement, signed br herself and 
 her said father, to sing (in consideration of certain 
 payments to be made to her by the plaintiff) during 
 three months, from the day of the month of 
 
 in the year , at the plaintiff's theatre aforesaid, in 
 
 certain parts or characters, in certain operas in the said 
 agreement specified. The said agreement contained divers 
 other special stipulations between the defendants C. and D. 
 and the plaintiff; but none of such stipulations negatived 
 the contract of the defendant C. to sing at the plaintiff 's 
 theatre as aforesaid, except in reference to incapacity of the 
 defendant C. to perform her contract by reason of illness. 
 The said agreement was duly signed by both the defendants 
 C. and D. and by the plaintiff. 
 
 3. On the day of in the year afore- 
 said, the defendant C, in compliance with the request of 
 the plaintiff, added to the aforesaid agreement, an under- 
 taking in writing not to use her talents at any other 
 theatre nor in any concert or reunion, public or private, 
 without the written authority of the plaintiff; and such 
 undertaking was signed by one, X. " for the defendant C, 
 and authorized by her." 
 
168 PEECEDENTS. 
 
 4. Subsequently the defendants C. and D. entered into 
 another engagement with the defendant E. (for a larger 
 consideration than the consideration expressed in the 
 aforesaid prior agreement with the plaintiff) that the de- 
 fendant C. should sing for the defendant E. at thea- 
 tre, of which the said defendant E. was and is the manager ; 
 and should abandon the agreement aforesaid made with 
 the plaintiff: and the plaintiff received, on the daj' of 
 
 , from the defendants C. and D. a written protest, 
 repudiating the agreement aforesaid made by them with the 
 plaintiff. 
 
 5. The defendant E., at the time when he entered into 
 his agreement with the defendants C. and D., was fully 
 aware of the agreement mentioned in paragraph 2 between 
 the plaintiff and the defendants C. and D. 
 
 6. The defendant C. refuses to sing for the plaintiff at 
 the plaintiff's said theatre, and threatens and in- 
 tends to sing for the defendant E. at his theatre. The 
 plaintiff has alwa3's been, and is now ready and willing to 
 perform his part of the said agreement. 
 
 The plaintiff prays : — 
 
 1. An injunction restraining the defendants C. and D. 
 from violating or committing any breach of the said 
 agreement of the day of ,18 , and in 
 
 particular of the subsidiaiy agreement or undertaking 
 referred to in paragraph 3 of the plaintiff's bill, 
 and restraining the defendant C. from singing and 
 performing, or singing or performing at any theatre 
 other than the plaintiff's said theatre, without the 
 sanction or permission of the plaintiff, during the 
 period covered by the agreement referred to in para- 
 graphs 2 and 3 ; and also restraining the defendant 
 D. from permitting or sanctioning the defendant C.'s 
 singing and performing as aforesaid at the theatre of 
 the defendant E. ; and also restraining the defend- 
 ant E. from accepting the services of the defend- 
 
PRECEDENTS. 169 
 
 ant C, or permitting her to sing at his the said E.'s 
 theatre, during the continuance of the aforesaid agree- 
 ment between the plaintiff and the defendants C. 
 and D. 
 2. Such further or other, etc. 
 
 Answer op the Defendants C. and D. 
 
 1 . X., named in the plaintiff's bill in paragraph 3 thereof, 
 was not authorized by us, the defendants C. and D., or 
 either of us, to sign that part of the agreement alleged by 
 the plaintiff, which is referred to in paragraph 3 of the 
 plaintiff's bill. 
 
 2. The defendants C. and D. submit that, having regard 
 to the facts as stated by the plaintiff, the court has no 
 jurisdiction to compel performance by the defendant C. of 
 that part of the alleged agreement which is referred to in 
 paragraph 2 of the plaintiff's bill ; and that having no such 
 jurisdiction, the court has no jurisdiction to enforce the 
 portion of the alleged agreement mentioned in paragraph 
 3 of the plaintiff's bill, even if it were true, which the 
 defendant C. denies as aforesaid, that such last-mentioned 
 agreement was signed hj the direction and authority of the 
 defendant C. 
 
 Replication. 
 
 The plaintiff joins issue upon the answer of the defend- 
 ants C. and D.i 
 
 1 As to defence of the defendant E. in a case of this kind ; it is 
 submitted that he could have no defence, on any other ground than 
 ignorance of the contracts between the plaintiff A. and the defendants 
 C. and D. and the question of jurisdiction ; and would in all proba- 
 bility be advised simply to submit his case to the court. The report 
 of Lumley v. Wagner does not state whether the defendant E. made 
 any defence. 
 
170 PEECEDENTS. 
 
 Constructive Notice as affecting Specific Performance. 
 
 Flight V. Barton, 3 Myl. & K. 282. 
 
 Between A Plaintiff, 
 
 and 
 B Defendant. 
 
 1. On the day of , in the present year, the 
 defendant entered into a written agreement with the plain- 
 tiff to take from the plaintiff an underlease of certain 
 premises situate at , which premises the plaintiff 
 holds as lessee thereof for a term of years from 
 [rfa<e] , under a deed dated the of 
 
 2. The said lease to the plaintiff contains a covenant 
 that divers trades therein mentioned, and among others 
 the trade of shall not be carried on on the said 
 premises. 
 
 3. During the negotiations between the plaintiff and 
 the defendant in respect of the grant by the plaintiff 
 of an underlease to the defendant, the defendant stated 
 to the plaintiff that he, the defendant, carried on the 
 said trade of , and intended to carry on the said 
 trade on the said premises on his having an underlease 
 thereof. 
 
 4. The defendant did not ask the plaintiff for inspection 
 of the lease under which he, the plaintiff, holds the said 
 premises, though the plaintiff was ready and willing to 
 allow the defendant to see and inspect the said lease, 
 neither did the defendant in any manner call the atten- 
 tion of the plaintiff, to the question whether the carrying 
 on such trade as aforesaid, was forbidden by the lease held 
 by the plaintiff. And the plaintiff, not having his atten- 
 tion so called to that question, and forgetting, in fact, that 
 the said lease did contain such a prohibition, did not in- 
 form the defendant of that fact before the conclusion of 
 the aforesaid agreement. 
 
PRECEDENTS. 171 
 
 5. The plaintiff lias repeatedly applied to and requested 
 the defendant to perform on his part the said agreement, 
 and to accept such underlease as aforesaid ; the plaintiff 
 has offered and hereby offers on his part, to grant and 
 execute such underlease, but the defendant refuses to per- 
 form the said agreement on his part. 
 
 The plaintiff prays : — 
 
 1 . That the defendant may be decreed specifically to per- 
 
 form the said agreement, and to accept an underlease 
 of the said premises, pursuant to the terms of the 
 agreement referred to in paragraph 1 of the plaintiff's 
 bill. 
 
 2. Such further, etc. 
 
 Answer. 
 
 The defendant admits the truth of paragraph 1 of the 
 plaintiff's bill. On entering into and executing the agree- 
 ment with the plaintiff, referred to in the plaintiff's bill, 
 the defendant had not any direct and positive notice of the 
 fact, that the lease held bj' the plaintiff contains the cove- 
 nant referred to in paragraph 2 of the plaintiff's bill. The 
 said covenant is a whollj' unusual covenant, as applied to 
 premises of the character and locality of the premises com- 
 prised in the said lease ; and if the plaintiff had informed 
 the defendant of the existence of the said covenant, the 
 defendant would have refused to enter into any agreement 
 for an underlease. And the defendant submits to the court 
 that he is not, having regard to the circumstances in the 
 plaintiff's bill and herein stated, affected with constructive 
 notice of the said covenant. 
 
 Replication. 
 The plaintiff joins issue, etc. 
 
172 PEECEDENTS. 
 
 FRAUD. 
 
 Bill to set aside a Fraudulent Transaction. 
 
 Balmer v. Hunter, 8 L. R. Eq. 46. 
 
 Between A. B Plaintiff, 
 
 and 
 CD. and E. D. (wife of | ^^ ^^^^^^^_ 
 the said C. D.), . . . j "^ 
 
 1. In the year the plaintiff lent to the defendant 
 C. D. the sum of £150, upon the said defendant's promis- 
 sory note, bearing interest, which interest the said defend- 
 ant duly paid up to the month of August, , but no 
 longer ; and on the 25th of the month of January in the 
 following j'ear, the plaintiff commenced an action at law 
 against the said defendant C. D. for the amount of the 
 sajd note and interest. 
 
 2. On the 12th of February following, the plaintiff gave 
 notice of trial to the defendant CD., and on the 1st of 
 March following, the plaintiff recovered a verdict in the 
 said action against the said defendant for £153 Vis. and 
 costs amounting to £65 ; the whole of which two sums 
 still remain due and owing to the plaintiff. 
 
 3. On the 9th of May following, judgment was entered 
 up by the plaintiff in the said action, and on the 12th of 
 July immediately following, the said defendant C. D. was 
 adjudicated bankrupt. 
 
 4. The plaintiff proved his said debt under the said bank- 
 ruptcy, and was dulj' appointed and is still, assignee of the 
 estate of the defendant the said bankrupt. 
 
 5. Pending the aforesaid action, the defendant C D. 
 intermarried with the defendant E. D. with intent to de- 
 fraud the plaintiff and to defeat his recovery of the said 
 debt; having arranged with the defendant E. D. (with 
 whom he had previously cohabited) that they should inter- 
 
PRECEDENTS. 173 
 
 marry, in order and with a view that, before the trial of the 
 aforesaid action, an antenuptial settlement of all the prop- 
 erty of the said C. D. might be made, excluding the plain- 
 tiff and C. D.'s other creditors from payment out of C. 
 D.'s property. 
 
 6. In order to carry the aforesaid scheme into effect; 
 on the 15th of February immediately after the aforesaid 
 notice of trial, a settlement was prepared (by the direction 
 of the defendant C. D.) by C. D.'s attorney in the afore- 
 said action, and was executed previously to the marriage 
 of the defendant C. D. with the defendant E. D. By the 
 said settlement all the property of the defendant C. D. 
 (including his furniture and other effects) was conveyed 
 and assigned to trustees, upon trust for the said E. D., the 
 then intended wife of the said C. D. for her separate use for 
 life, with remainder to a son of C. D. by a previous mar- 
 riage, absolutely ; and the said settlement contained powers 
 to the defendant C. D. and his said wife, to revoke any of 
 the trusts of the said settlement, and to declare new trusts. 
 
 7. The said marriage took place on the 18th of the said 
 month of Februarj-, ; the said settlement was made 
 by the said C. D., with the connivance of the defendant 
 E. D. -with intent to defeat and delay the creditors of the 
 said C. D. 
 
 The plaintiff prays : — 
 
 1 . That it may be declared that the said settlement made 
 
 on the marriage of the defendants C. D. and E. D. 
 his wife, was and is fraudulent as against the cred- 
 itors of the defendant C. D. and that it may be set 
 aside, so far as regards the plaintiff's interest in the 
 estate of the said C. D. 
 
 2. That the defendant C. D. may be ordered to pay to the 
 
 plaintiff his costs of this action. 
 
 3. Such further or other, etc. 
 
174 PEECEDENTS. 
 
 Answer of the Defendant C D. 
 
 1 . It is not the fact that the settlement mentioned in the 
 plaintiff's bill (and which was in fact made) was made for 
 the purpose of defeating the creditors of this defendant, or 
 for any fraudulent or improper purpose. The marriage 
 between this defendant and his wife the defendant E. D. 
 and the terms of the said settlement, had been arranged 
 and agreed upon, long before the action mentioned in the- 
 plaintiff's bill was brought by him against this defendant ; 
 and the said intended marriage, and the execution of the 
 said settlement, had been delayed only by the illness of 
 the defendant E. D. 
 
 Replication. 
 
 The plaintiff joins issue, etc. 
 
 Answer op the Defendant E. D. 
 
 1 . The marriage between this defendant and the defend- 
 ant C. D. and the terms of the settlement referred to in 
 the plaintiff's bill, had been agreed upon between the de- 
 fendant C. D. and this defendant, long before the period at 
 which, according to the statement in the plaintiff's bill, the 
 action therein referred to was brought by the plaintiff ; and 
 the said marriage between this defendant and the defend- 
 ant CD. had been postponed, on account of this de- 
 fendant being ill, and on no other account, and for no 
 other reason whatever. 
 
 2. This defendant denies having had before her marriage 
 with CD., any knowledge whatever, that the plaintiff had 
 advanced anj' money to the defendant CD. 
 
 Replication. 
 The plaintiff joins issue, etc. 
 
PRECEDENTS. 175 
 
 Bill to set aside Purchase obtained by Fraud. 
 
 Haygarth v. Wearing, 12 L. E. Ecj. 325. 
 
 Between A Plaintiff, 
 
 and 
 B. and C Defendants. 
 
 1. The plaintiff is unmarried, and has for many j'ears 
 earned and still earns her living as a schoolmistress, by 
 keeping a small school at , near London. 
 
 2. In the month of , in the j'ear , the defend- 
 ant B. (who is a mill-owner in a small way in Yorkshire) 
 called upon the plaintiff, and informed her of the death of 
 her brother, and that he had died intestate in the early 
 part of the aforesaid year , leaving a small piece of 
 land at , in the said county of Yorkshire ; and in- 
 forming her also, as the fact was and is, that she was her 
 said brother's heiress at law, and entitled to the said piece 
 of land. The plaintiff had not seen or corresponded with 
 her said brother, for many years before his death, and was 
 wholly ignorant of his position and means. 
 
 3. The plaintiff asked the defendant B. what was the 
 value of the said piece of land left undisposed of by the 
 plaintiff's said brother ; and he told her that he had a 
 claim upon it, in respect of a debt due to him from her said 
 brother, for advances made to him by the defendant B. to 
 the extent of £400 ; and that the plaintiff's interest in 
 the said land, subject to the said debt of £400, was of the 
 value of about £100 ; and the said defendant asked the 
 jjlaintiff whether she was willing that he the defendant 
 should purchase her interest for the sum of £100. 
 
 4. The plaintiff had, as aforesaid, not had any communi- 
 cation with her said brother for many years before his 
 death, and was wholly ignorant of his possession of the 
 said land, and of his alleged indebtedness to the defend- 
 ant B. ; and she was equally ignorant of the value of the 
 
176 PEECEDENTS. 
 
 said land ; and trusting wholly to the good faith of the said 
 defendant B., and believing the statement made by him 
 as to the value of the said land, and his the defendant's 
 charge upon it, the plaintiff consented to the said defend- 
 ant's proposal to sell her interest in the said land to him 
 for the sum of £100. 
 
 5. The defendant B. thereupon told the plaintiff that he 
 intended all his property to go to his daughter the defend- 
 ant C, and that he wished the conveyance of the land to 
 be made to her. About a fortnight after the said inter- 
 view of the plaintiff with the defendant B. he called on the 
 plaintiff, and brought with him a deed, being, as she under- 
 stood, a conveyance of the said piece of land to the de- 
 fendant C, in consideration of the sum of £500, of which 
 sum, the sum of £400 was stated, in a recital in the deed, 
 to be a debt from the plaintiff's brother to the defendant 
 B. ; and the balance of £100 was paid by the defendant B. 
 to the plaintiff, on the execution of the said deed on the 
 
 day of . The said defendant did not suggest 
 
 to the plaintiff that she should consult any professional or 
 other adviser in the matter of the said sale ; and she did 
 not consult any one, believing, as aforesaid, that the de- 
 fendant B. was acting in good faith. 
 
 6. The plaintiff has since discovered, as the fact is, that 
 the defendant greatly and knowingly misrepresented to 
 the plaintiff, not only the actual value of the said piece of 
 land, but also the extent of indebtedness of the plaintiff's 
 said brother to the defendant B. And the plaintiff has 
 since ascertained that the actual value of the said land, at 
 the time when the defendant B. induced the plaintiff to sell 
 it to him, exceeded the sum of , and that the ad- 
 vances made hj the defendant B. to the plaintiff's brother 
 do not exceed the sum of 
 
 The plaintiff prays : — 
 
 1. A declaration that the said deed of the of 
 
 is void as against the plaintiff, except as a security 
 
PKECEDEXTS. 177 
 
 to the defendant B. for what shall be found due to 
 him, in respect of advances actually made by him to 
 the plaintiff's said brother. 
 
 2. An account of what sum was actually due to the de- 
 
 fendant B. at the date of the death of the plaintiff's 
 said brother, for advances made to him by the said 
 defendant ; and of what is due in respect of unpaid 
 interest (if any) thereon ; and an account of the 
 rents of or other income arising from the said land, 
 received by the defendant B. during his possession 
 thereof. 
 
 3. That upon such account being taken, and the clear sum 
 
 due to the said defendant B. being ascertained, the 
 said deed may be delivered up to the plaintiff, upon 
 her executing a mortgage upon the said piece of land, 
 to secure to the defendant B. the amount of his said 
 debt and interest. 
 
 4. That the defendant B. may be ordered to pay to the 
 
 plaintiff her costs of this action. 
 
 5. Such further or other relief, etc. 
 
 Answer of the Dependant B. 
 
 1. This defendant, at his interview with the plaintiff re- 
 ferred to in paragraphs 2 and 3 of the plaintiff's bill, in- 
 formed her, as the fact was and is (to the best of this 
 defendant's belief), that he had a claim for £400 against 
 the plaintiff's brother, on account of moneys advanced to 
 him from time to time by this defendant, to the extent of 
 £300, and of a further sum of £100 with which this de- 
 fendant paid off a mortgage on the said propertj', made 
 hj the plaintiff's said brother. The said property was 
 and is, to the best of this defendant's belief, not worth 
 more than £100, after deducting the two said sums of £300 
 and £100. 
 
 i. The plaintiff's said brother frequently told this de- 
 fendant that he meant that after his death the said prop- 
 erty should go to this defendant and his daughter the 
 
 12 
 
178 PRECEDENTS. 
 
 defendant C. ; and this defendant showed to the plaintiff 
 letters of her brother's to this defendant to that effect ; 
 and the plaintiff said she was convinced that her brother 
 intended that this defendant and his daughter should have 
 the said property after her said brother's death. 
 
 3. This defendant, while the negotiation between him 
 and the plaintiff was going on, expresslj- asked her to 
 consult some other person on the subject of her selling her 
 interest to this defendant before concluding anything as 
 to the sale of the said land to this defendant ; and the 
 plaintiff replied that she did not want to do so ; and this 
 defendant did not tender any deed to the plaintiff for exe- 
 cution in respect of the transaction, for a full fortnight 
 after she had signified her intention to accept £100 as the 
 full purchase-rnoney ; during which time she had ample 
 opportunity for making inquiries and obtaining advice. 
 
 Replication. 
 The plaintiff joins issue, etc. 
 
 Answer of the Defendant C. 
 
 1. This defendant has no personal knowledge of the 
 circumstances under which the plaintiff sold the land in 
 question in this action, to her father the defendant B. ; and 
 submits her case, upon the facts that shall be proved in 
 this cause, to the judgment of the court.^ 
 
 1 To such a defence it is unnecessary to reply. 
 
PRECEDENTS. 179 
 
 Fraud hy Undue Influence. 
 
 Smith V. Tibbit, L. E. 1 P. & D. 398. 
 
 Between A. B Plaintiff, 
 
 and 
 C. D. and E. F. . . Defendants. 
 
 1. The plaintiff is the only sister and only next of kin 
 of Mary H. deceased, -who died on the day of , 
 18 , intestate 
 
 2. The said Mary H. on the day of , 18 , 
 duly made and executed a deed of gift, by which, reciting 
 among other things, that great services had been rendered 
 to her by the defendants C. D. and E. F. ; she conveyed 
 and assigned the whole of her real and personal estate, to 
 the said C. D. and E. F. in equal moieties, subject only to 
 a life interest reserved to herself; the said estate amount- 
 ing in value to upwards of 
 
 3. The plaintiff was both before and after the execution 
 of the said deed, on friendly terms with her said sister 
 Mary H. and had not done any, acts of any kind to forfeit 
 the affection or friendly feeling of the said Mary H. to- 
 wards the plaintiff; and was, until the death of her said 
 sister, wholly unaware of the fact of the said Mary H. 
 having executed the said deed. 
 
 4. The said Marj' H. was for several years before the 
 date of the said deed, and down to the time of her death, 
 of weak mind and subject to delusions ; one of which de- 
 lusions was that she had constant and direct communica- 
 tions with God ; another of her occasional delusions was 
 that she was the " Holy Ghost," and that the defendant 
 C. D. was " the Father ; " and another of such occasional 
 delusions was, that the defendant C. D. knew all that she 
 thought and did, and that if the defendant C. D. was 
 abroad, and she the said Mary H. was in England, C. D. 
 
180 PEECEDENTS. 
 
 would, without any communication from her, know all that 
 she thought and did. The said Mary H. was subject also 
 to frequent other delusions of the grossest kind ; and 
 was in fact, both before and at and after the time of the 
 said deed being executed, if not actually insane, quite in- 
 capable of exercising rational volition. 
 
 5. The defendant C. D. is a physician, and was, both 
 before and after the date of the aforesaid deed of gift, the 
 family phj^sician of the said Mary H. and attended her as 
 such on many occasions when she was ill ; and he had 
 acquired and had a powerful influence over her mind. The 
 defendant E. F. is the brother of the defendant C. D., and 
 was in frequent communication with the said Mary H. both 
 before and after the making of the said deed, and was 
 well aware of her being subject to such delusions as 
 aforesaid. 
 
 6. The defendant C. D. never rendered any services to 
 the said Mary H. except attending her during her illness 
 as her medical adviser, for which services the said C. D. 
 received da\j his professional fees ; and the defendant 
 E. F. never rendered to the said Mary H. any material 
 services of any kind. 
 
 The plaintiff praj-s as follows : — 
 
 1. That the court will be pleased to declare, that the said 
 
 Mary H. was, at the time when she made and exe- 
 cuted the aforesaid deed, incapable of exercising a 
 rational volition, and was under the undue influence 
 of the said C. D. ; and to order that the said deed be 
 delivered up by the said defendants, and be cancelled. 
 
 2. Such further and other relief, etc. 
 
 Answer of the Defendant C. D. 
 
 1. The defendant C. D. admits the truth of the state- 
 ments made in paragraphs 1 and 2 of the plaintiff's bill. 
 
 2. The defendant has no knowledge as to the facts al- 
 leged iu paragraph 3 of the said bill. 
 
PRECEDENTS. 181 
 
 3. It is not the fact that the said Mary H. was for sev- 
 eral 3-ears before the date of the deed referred to by the 
 plaintiif, and down to the time of her death, of weak mind 
 generally. She was subject at intervals, to some occa- 
 sional delusions, such as those stated in paragraph 4 of 
 the plaintiff's bill. But such delusions were not frequent, 
 and were of short duration. In the intervals between such 
 periods of delusion, the said Mary H. was wholl}^ free from 
 anj' delusion of any kind, and as capable as most persons 
 are of exercising rational volition. It was during one of 
 the periods in which the said Mary H. was free from delu- 
 sion, and capable of exercising rational volition, that she 
 planned and executed the said deed. 
 
 4. This defendant did attend the said JMarj^ H. as her 
 medical adviser whenever she was ill, both before and after 
 the execution of the said deed. This defendant did not 
 at any time or on any occasion, suggest to the said Mary, 
 II. the making of the said deed ; and, in fact, never did 
 exercise or attempt to exercise any influence over the said 
 Mary H., except professionally, in respect of her health. 
 
 Answer of Defendant E. F. 
 
 1. This defendant admits the truth of the statements in 
 paragraphs 1 and 2 of the plaintiff's bill, but he has no 
 knowledge as to the facts alleged in paragraph 3 of tlie 
 said bill. 
 
 2. This defendant saj-s that he has no positive knowledge 
 as to the said Mary H. having such delusions as are alleged 
 in paragraph 4 of the plaintiff's bill ; he believes, however, 
 that she was at some periods affected by some delusions. 
 Bnt this defendant saj's, to the best of his information and 
 belief, that such fits of delusion occurred only occasionally, 
 and with long intei-vals between them, and that in such 
 intervals the said Mary H. was mentally like other persons 
 in general. This defendant further says, that he was pres- 
 ent at the execution of the said deed ; that the said deed 
 was read over aloud in the presence of the said Mary H. 
 
182 PEECEDENTS. 
 
 and in the presence of this defendant ; and that she the 
 said Mary H. was perfectly calm and collected, and ex- 
 hibited no signs or sj-mptoms whatever, of being in any 
 other condition than that of a state of perfect self-posses- 
 sion, and of being fully aware of what she was doing and 
 of what would be the effect of the said deed. 
 
 3. This defendant admits that his brother, the said 
 C. D., was the familj- physician of the said Mary H. but 
 he has no knowledge whether his said brother had or not 
 a powerful or any influence over her. 
 
 4. This defendant admits that he has never rendered 
 to the said Mary H. anj^ material services ; but he has 
 alwajs, both before and after the execution of the said 
 deed, been on terms of intimate friendship with the said 
 Mary H. 
 
 Replication to the Answer op the Defendant C. D. 
 
 The plaintiff joins issue, etc. 
 
 The same reply to the defendant E. F. 
 
 PARTNERSHIP. 
 
 Bill for an Account between Partners. 
 
 Burton v. "Woolley, 6 Madd. 367. 
 
 Between A. B Plaintiff, 
 
 and 
 C. D Defendant. 
 
 1 . Under an indenture dated the day of , in 
 
 the j-ear , made between the plaintiff of the one part 
 
 and the defendant of the other part, the plaintiff and 
 defendant entered into partnership as dealers in lapis 
 calaminaris ; and by the said indenture it was agreed, 
 among other things, that the plaintiff and the defendant 
 
PRECEDENTS. 183 
 
 should equally share the profits, and equally bear the 
 losses of their said partnership business. 
 
 2. The defendant keeps a shop near to the mines whence 
 the said lapis calaminaris is gotten, and he has from time 
 to time purchased, for and on account of the partnership, 
 considerable quantities of the said ore from the owners of 
 the said mines ; and has paid for such ore with his own 
 shop goods by way of barter, instead of paying for the 
 same in mone}', and he has made profits by his said mode 
 of dealing with the miners. 
 
 3. In his accounts with the plaintiff, the defendant has 
 charged the partnership in respect of the said purchases, 
 with the amount of the prices for which he has sold or 
 bartered the said goods to the miners ; and has retained 
 in his own hands and for his own benefit, the profits made 
 by such sales or barters. 
 
 4. The defendant ought not to have retained such profits 
 in his own hands, but ought to have charged the partner- 
 ship only with the prices at which he bought the said goods, 
 and ought to have accounted to the partnership for the 
 profits so made by him. 
 
 The plaintiff praj's : — 
 
 1. That an account may be taken of the profits made by 
 
 the defendant, by or in respect of such barter as 
 aforesaid of his said goods ; and that the profits so 
 made bj' him, may be ordered to be carried to the 
 account of the partnership. 
 
 2. Such further or other, etc. 
 
 Answer. 
 
 1. The defendant admits the truth of the statements in 
 paragraphs 1, 2 and 3 of the plaintiflTs bill. 
 
 2. Before the date of the partnership deed and down to 
 the j-ear , the miners were in the habit of dealing at 
 the defendant's shop, receiving money for the lapis cala- 
 minaris which he bought of them, and paying for their 
 
184 PRECEDENTS. 
 
 shop goods bought b}' them, in the same manner as they 
 would have done in dealing with any other shopkeeper. 
 In the year and for some time afterwards, there was 
 
 much distress among the miners, and they could not pay 
 in money for the goods sold to them by the defendant ; 
 and the defendant then commenced, and has since con- 
 tinued pacing the miners for the lapis calaminaris bought 
 from them, in goods from his shop, and charging in his 
 account with the plaintiff as for cash, to the amount of the 
 sale price of the goods. 
 
 3. The defendant has had all the labor and responsi- 
 bility of purchasing lapis calaminaris for the partnership, 
 and submits to the court, that he had a right to deal with 
 the plaintiff in manner stated in the plaintiff's bill and in 
 this his the defendant's defence. 
 
 Replication. 
 
 The plaintiff joins issue on the answer, and submits to 
 the court that the defendant ought to have charged the 
 plaintiff and accounted to him, in the manner stated in 
 paragraph 4 of the plaintiff's bill, and not otherwise. 
 
 INJUNCTIONS TO RESTRAIN WASTE. 
 
 Injunction to restrain Waste. 
 
 Earl of Lonsdale v. Curvvin, 3 Bligh, 168, notia. 
 
 Between A. B Plaintiff, 
 
 and 
 CD Defendant. 
 
 1. The plaintiff is seised of the manor of Z., in the 
 county of ; and also of certain closes or pieces or 
 
 parcels of land called X. lying on the south side of a 
 
PRECEDENTS. 185 
 
 rivulet called the "Mill Race," whieli divides the manor 
 Z. from the land X. There are mines of coal, under the 
 closes X., belonging to the plaintiff. The defendant is 
 seised of lands also on the south of the rivulet called 
 the "Mill Race," under which lands of the defendant 
 there ai-e also coal mines. 
 
 2. Tlie defendant has, bj' his servants and agents, 
 worked the mines under his said land on the south of 
 the "Mill Race," and in doing so, he has extended his 
 •works upwards of feet under the plaintiff's land X. 
 and has carried large quantities of coal from under the 
 said land X., amounting in quantity to wagons 
 full, or tons of coal, of the value of not less 
 than 
 
 3. The defendant has not onlj- worked under the plain- 
 tiff's land as aforesaid, and dug out from such workings 
 large quantities of coal as aforesaid, but has given du-ec- 
 tions to his servants to remove several of the pillars here- 
 tofore existing in the plaintiff's mines under the said land 
 X. supporting the roof of the plaintiff's mines, whereby 
 the working of such mines, if such removal of the said 
 pillars is continued, wiU be destroj'ed, or at least rendered 
 much more difficult and expensive. 
 
 4. The defendant has also directed his servants and 
 agents to let out the water from his own coal mines, into 
 the coal mines under the plaintiff's land and belonging to 
 the plaintiff ; wherebj' the workings of the plaintiff in his 
 own collieries, will be, if not absolutely destroyed, at least 
 greatly injured, and damaged in value to a very consider- 
 able extent. 
 
 The plaintiff praj'S : — 
 
 1. An injunction restraining the defendant from continu- 
 ing to work in the collieries situate under the plain- 
 tiff's land, and from allowing the water from his the 
 defendant's collieries to flow into the plaintiff's col- 
 lieries. 
 
186 PEECEDENTS. 
 
 2. An account of the profits made by the defendant by his 
 
 ■working and obtaining coal as aforesaid under the 
 plaintiff's land and in the plaintiff's collieries; and 
 that the defendant may be ordered to pay to the 
 plaintiff the amount of profits so made by the defend- 
 ant. 
 
 3. Damage for the injury done by the defendant by allow- 
 
 ing the water from the defendant's collieries, to flow 
 into the plaintiff's collieries. 
 
 4. Such further or other, etc. 
 
 Answer. 
 
 1. The defendant admits the truth of the statement in 
 paragraph 1 of the plaintiff's bill. 
 
 2. The defendant admits that he has worked the coal 
 mines under his own land, but he denies that he has 
 extended bis works in manner stated in paragraph 2 of the 
 plaintiff's biU under the plaintiff's land, or at all ; and so 
 it will appear if a jproper survej' is made of the extent of 
 the plaintiff's mines and of the defendant's mines. 
 
 3. The defendant has not given any such directions to 
 his servants and agents, as in paragraph 3 of the plain- 
 tiff's bill. The plaintiff has erected pillars not onlj' in the 
 collieries under his own land, but has also erected pillars 
 which are in fact under the defendant's land, and the de- 
 fendant has ordered such pillars to be removed. 
 
 4. The defendant has not given to his servants and 
 agents any of such directions as are in paragraph 4 of the 
 plaintiff's bill mentioned. The defendant has, on the 
 contrary, done all acts in his power, to prevent any flow of 
 water from the defendant's mines into the plaintiff's mines. 
 But the defendant is wholly unable to prevent the flow of 
 some very small quantity of water from his mines into the 
 plaintiff 's mines. 
 
 Replication. 
 
 The plaintiff joins issue, etc. 
 
PRECEDENTS. 187 
 
 mJUNCTIONS TO RESTRAIN NUISANCES. 
 Bill to restrain Nuisance by fouling Water. 
 
 Elmhirst v. Spencer, 2 M'N. & Gord. 45. 
 
 Between A. B Plaintiff, 
 
 and 
 CD Defendant. 
 
 1. The plaintiflf is seised of a piece of land situate at 
 
 , and from time immemorial two streams of water 
 have passed through the plaintiff's said land. The said 
 two streams are derived and flow from the defendant's 
 land into the plaintiff's said land. 
 
 2. The defendant erected in the year certain 
 bleach works on his land, and has used and continues to 
 use in the said works^ and divers other deleterious 
 and noxious chemical and other substances, which, after 
 being so used, are passed or poured by the defendant or 
 his servants or agents into the said streams flowing through 
 his land, and thence pass through the plaintiff's land. 
 Before the erection of the said bleach works, the water 
 passing from the plaintiff's land through the defendant's 
 was pure and fit for the purposes of irrigation, and for 
 culinary purposes, and for the drink of cattle, and for the 
 maintenance of fish. But since the erection of the said 
 bleach works, the water flovring through the plaintiff 's land 
 from the defendant's land has been and is so polluted by 
 such discharge as aforesaid from the defendant's works, 
 as to be unfit for the use of man or beast, and is destructive 
 of fish. The plaintiff is greatly injured by such pollution as 
 aforesaid of the said streams flowing through the plaintiff's 
 land. 
 
 3. The plaintiff has suffered considerable pecuniary 
 damage, by the defendant so fouling the water flowing 
 
 1 State what particular noxious materials. 
 
188 PEECEDENTS. 
 
 from the defendant's land into and through the plaintiff's 
 land as aforesaid. 
 
 1 
 
 The plaintiff prays : — 
 
 , Damages for the wrong and injury complained of by 
 the plaintiff. 
 
 2. An injunction restraining the defendant from continuing 
 
 to foul and render noxious, the water flowing from 
 Ms laud into the plaintiff's land. 
 
 3. Such further or other relief, etc. 
 
 Answer. 
 
 1. All the several poisonous elements formerly used by 
 this defendant in his said bleach works, have long since 
 been extracted by chemical processes and means, from 
 the matters used by the defendant ; and in fact the water 
 flowing from the defendant's land into and through the 
 plaintiff's land, is now and has been for a considerable 
 period, rendered substantially innocuous, and is fit for the 
 use of man, for the drink of cattle, for flsh to live in, and 
 for all other reasonable purposes. 
 
 2. There is no house or inhabitable tenement of any 
 kind on the plaintiff's land, in which water can be required 
 for anj' culinarj' purpose. 
 
 3. The plaintiff does not now incur, and in fact has not 
 for more than £state period] incurred any substantial pe- 
 cuniary damage, by the flowing of the water of the said 
 streams into the plaintiff's land from the defendant's 
 land. 
 
 Replication. 
 
 The plaintiff joins issue upon the defendant's answer. 
 
PEECEDENTS. 189 
 
 Bill to restrain Nuisance hy Noise. 
 
 Gaunt V. Fynney, 21 "W. Rep. 129. 
 
 Between A. B Plaintiff, 
 
 and 
 CD D fendant. 
 
 1. The plaintiff is owner of a house and garden situate 
 in street, in the town of , in the county of 
 The said house and garden are situate witliin about twenty 
 yards in distance from a silk mill belonging to and worked 
 bj- the defendant. 
 
 2. For manj- years, from the year down to the year 
 , the said silk mill was worked by hand-power, and no 
 
 material noise was during that period, occasioned by the 
 working of the said mill. 
 
 3. In the 3'ear the defendant added to the buildings 
 of his said mill ; and, among other additions, erected a 
 small outhouse on part of his premises, not more than 
 
 yards from one wall of the plaintiff's house, and he 
 put up a steam-engine of about fourteen horse-power in 
 the said outhouse, and connected the steam-engine by 
 gearing, with the machinerj' of the mill, and worked and 
 still works the mill b}' such steam-engine and gearing. 
 
 4. Before the erection and use of the said steam-engine 
 by the defendant, there was no material noise or vibration 
 occasioned by the working of the said mill ; but after the 
 erection and use of the said steam-engine and the connect- 
 ing machinery used therewith to drive the looms in the 
 said mill, and from that time down to the present time, 
 the noise and the vibration caused in the plaintiff's house, 
 by the working of the said steam-engine and machinery 
 have been so great, as to occasion a material injury to the 
 plaintiff's reasonable comfort, and in fact to cause actual 
 nuisance. 
 
 5. The plaintiff has on several occasions remonstrated 
 
190 PEECEDENTS. 
 
 with the defendant and requested him to diminish the noise, 
 vibration, and nuisance, occasioned by his working his mill 
 by the said steam-engine and connecting machinerj' ; but 
 the defendant has refused or neglected to take any step 
 towards abating the said nuisance, and the said nuisance 
 continues. 
 
 The plaintiff praj's : — 
 
 1. An injunction restraining the defendant from continu- 
 ing to work his said mill, by means of the said steam- 
 engine and connecting machiner3-, and from erecting 
 or using any other machinery producing such noise 
 and vibration as aforesaid. 
 . 2. Such further or other, etc. 
 
 Answer. 
 
 1 . The defendant admits the truth of the statements in 
 paragraphs 1, 2 and 3 of the plaiutiflT's bill. 
 
 2. No complaint was made by or on behalf of the plain- 
 tiff of anj' increase of noise, or of any other annoyance to 
 the plaintiff by the erection and working of the said steam- 
 engine and machiner}-, when the same were first erected 
 and put to work ; nor was any such complaint made by 
 the plaintiff until years after the said machinery was 
 set to work. The vibration and noise occasioned by such 
 working of the said steam-engine and machinerj', are not 
 now greater than they were when the said steam-engine 
 and machinery were first put up and set to work. 
 
 3. The said town of is a manufacturing town, 
 full of mills and machinery. The defendant could not 
 have continued to carry on and cannot now carry on his 
 business in his silk mill, without applying thereto the use 
 of a steam-engine and its connecting machinery, having 
 regard to the general increase of the use of machinery in 
 such factories as the defendant's. And the plaintiff well 
 knew when she first took possession of her said house, 
 that it was Jas is the fact) surrounded by factories using 
 
PRECEDENTS. 191 
 
 heavy machinery, at no material distance from the said 
 house. 
 
 Replication. 
 
 The plaintiff joins issue on so much of the answer of the 
 defendant as is comprised in paragraphs 2 and 3 thereof. 
 
 INJUNCTIONS TO RESTRAIN INTERFERENCE 
 WITH LIGHT AND AIR. 
 
 Jilll to restrain Interference with Ancient Lights. 
 
 Yates V. Jacks, 1 L. R. Eq. Ap. 295. 
 
 Between A. B Plaintiff, 
 
 and 
 CD Defendant. 
 
 1. The plaintiff carries on the business of , at 
 Nos. 3 and 4, in street, in the citj' of London, and 
 has there carried on such business for 29 years. The 
 frontage of the plaintiff's premises is in width 29 feet; 
 the width of the street opposite to the said premises is not 
 more than 25 feet 2 inches. There are several windows 
 in the rooms of the said premises fronting the said street, 
 and the plaintiff has used and enjoyed the light coming 
 through the said windows for more than 20 years ; viz. 
 from the year down to the present time, uniuter- 
 i-uptedly. 
 
 2. The defendant is the owner of a piece of land with a 
 frontage of 90 feet, on the side of the said street opposite 
 to the plaintiff's premises. Down to a very recent period, 
 viz. the early part of the month of of the present 
 year, there were buildings on the defendant's said land, a 
 part of which buildings was only 32 feet in height from 
 the surface of the ground ; and the remainder thereof was 
 
192 PRECEDENTS. 
 
 not more than 20 feet in height above the ground ; no part 
 of such buildings .exceeded 32 feet in height; and while 
 the said buildings remained in that condition, thej' did not 
 cause any material interference with or diminution of the 
 light enjoj-ed bj' the plaintiff. 
 
 3. The defendant has recently pulled down his said old 
 buildings, and is proceeding to erect, and has in fact par- 
 tiallj' erected, new buildings on his said land opposite to 
 the plaintiff's premises. Such new buildings are set 6 feet 
 further back from the street than were the defeudant's old 
 buildings, but the defendant is proceeding to build them 
 up to the height of 67 feet from the ground ; and when so 
 carried to that height, they will very materially interfere 
 with and diminish the quantity of light hitherto enjoj'ed by 
 the plaintiff as aforesaid, while the defendant's buildings 
 were onlj^ of the heights referred to in paragraph 2. The 
 amount of light so enjoj'ed bj' the plaintiff was and is suit- 
 able for and required bj' the plaintiff's business, and the 
 plaintiff will sustain substantial damage, if the defendant's 
 buildings are raised to the height of 67 feet or to any 
 height materiallj' exceeding 32 feet. 
 
 • 4. The plaintiff has several times applied to and required 
 the defendant, not to exceed in his new buildings the height 
 of 32 feet from the ground ; but the defendant has refused 
 to comply with such requisitions, and is proceeding rapidly 
 with his buildings, on the footing and with the intent of 
 raising them to the aforesaid height of 67 feet above the 
 ground. 
 
 The plaintiff prays : — 
 
 1. That the court will be pleased to declare that the plain- 
 
 tiff is lawfully entitled 'to all the light that he has 
 enjoyed since the year 
 
 2. An injunction restraining the defendant from permitting 
 
 such parts of his said buildings as already exceed 
 32 feet in height from the ground, to remain beyond 
 such 32 feet in height ; and from raising his said new 
 
PRECEDENTS. 193 
 
 buildings in anj- part thereof, higher than 32 feet 
 above the ground. 
 3. Such further or other, etc. 
 
 Answek. 
 
 1. The defendant admits the truth of the statements in 
 paragraphs 1 and 2 of the plaintiff's bill. 
 
 2. The defendant admits that he has i^ulled down his old 
 buildings, and is proceeding to erect new buildings to the 
 height of 67 feet above the ground, such buildings being 
 thrown back, as stated in the plaintiff's bill, 6 feet fur- 
 ther from the street than the defendant's old buildings. 
 But the defendant denies that his buildings, when extended 
 in height to 67 feet, will materiallj' or at all cause damage 
 to the plaintiff, or materially diminish the quantity of light 
 hitherto enjoyed by the plaintiff. 
 
 Replication. 
 
 The plaintiff joins issue with the defendant on his 
 defence. 
 
 BiU to restrain Interference with Light. 
 Clarke v. Clark, 1 L. E. Eq. Ap. 16. 
 
 Between A. B Plaintiff, 
 
 and 
 CD Defendant. 
 
 1. The plaintiff is the owner of the house No. 28 in 
 street, in the city of Bristol. In the said house at 
 the back part thereof, there is a large room looking out on 
 the garden appurtenant to the said house. The defendant 
 is the owner of the adjacent house No. 27 in the said 
 street. The wall between and separating the gardens of the 
 said two houses, is on the left side of the plaintiff's said 
 
 13 
 
194 PRECEDENTS. 
 
 window, about 4 feet from such window, and about 11 feet 
 high from the ground ; and the said wall is nearly at a right 
 angle to the plaintiff's said window. 
 
 2. The defendant has commenced erecting in his garden, 
 some buildings for photographic purposes, running parallel 
 to the said garden party wall, about 3 feet and not more, 
 away from the wall. The said building so commenced will, 
 if continued, be at the lowest part thereof 4 feet 6 inches in 
 height above the top of the said party wall, and will run, 
 if completed according to the defendant's plan, from that 
 in height to 11 feet 'above the said wall. 
 
 3. The said buildings of the defendant, if completed, 
 will very materially obstruct the flow and amount of light 
 that comes into the plaintiff's said room through the said 
 window, during the winter months of November to Feb- 
 ruary, both inclusive, and during any cloudy days at other 
 times of the j-ear. 
 
 4. The plaintiff has applied to the defendant, and re- 
 quired him to discontinue erecting his said buildings in 
 manner hereinbefore described. But the defendant has 
 refused so to do, and is continuing to erect his said 
 buildings. 
 
 The plaintiff prays as follows : — 
 
 1. An injunction restraining the defendant from continu- 
 
 ing to erect the buildings commenced by him ; and 
 from permitting the buildings already commenced by 
 him to remain in such a state and to such a height, 
 as to obstruct or diminish the light coming to the 
 plaintiff's said room. 
 
 2. Such further or other relief, etc. 
 
 Ansvtee. 
 
 The defendant answers as follows : — 
 
 1. The defendant's building does not affect at all the 
 light coming to the room described in the plaintiff's bill, 
 during eight months in the j'ear ; that is to say, from the 
 
PRECEDENTS. 195 
 
 middle of March to the middle of October, both inclusive ; 
 and does not and will not materially affect the amount of 
 plaintifl"'s light in his said room, during even the four 
 winter months. In fact, the defendant's building does not 
 and will not obstruct or affect the plaintiff's light to any 
 substantial or material extent, or substantially interfere 
 with the plaintiff's light in respect of the ordinary occupa- 
 tions of life. 
 
 Replication. 
 The plaintiff joins issue, etc. 
 
 Injunction to restrain Building. 
 
 Mann v. Stephens, 15 Sim. 377. 
 
 Between A Plaintiff, 
 
 and 
 B Defendant. 
 
 1. X. being seised in fee of a piece of land situate near 
 
 , in the county of , on which he had built 
 
 three houses ; sold and conveyed one of the said houses 
 to Y. and covenanted with the said Y. his heirs and assigns, 
 that an adjoining piece of land, of which X. was seised in 
 fee, should forever thereafter remain a garden or shrubbery, 
 and that no house or other building should be erected 
 thereon, except a private house or ornamental cottage ; 
 and that, only on a certain part of it called " the Dell," 
 and that it was to be an ornament rather than otherwise 
 to the surrounding property. 
 
 2. In the year the house convej'ed to Y. became, 
 after several mesne convej'ances, vested in the plaintiff in 
 fee. Shortly before the convej-ance of the said house and 
 grounds to the plaintiff, the said piece of land affected by 
 the aforesaid covenant not to build thereon, as aforesaid, 
 became vested in fee in Z., and Z. entered into a covenant 
 
196 PEECEDENTS. 
 
 with his vendor Y. to the same effect as the covenant en- 
 tered into as aforesaid by X. with the plaintiff. 
 
 3. Afterwards Z. sold and conveyed the said piece of 
 land so affected by the said covenant against building, to 
 W. of whom the defendant purchased it. 
 
 4. At the time of the said last-mentioned purchase, the 
 defendant had actual notice of the covenant entered into 
 by Z. with Y. ; and the plaintiff submits, that under the 
 circumstances aforesaid, the defendant had constructive 
 notice of the covenant contained as aforesaid in the origi- 
 nal conveyance by X. to Y. With such notice the defend- 
 ant, in the month of , in the present year, began to 
 build on the piece of land affected by the covenant referred 
 to in paragraph 1 , a beershop and brewery. And although 
 the plaintiff has given to the defendant notice not to pro- 
 ceed with such buildings, the defendant is proceeding with 
 the same. 
 
 5. Such building as aforesaid, is a direct violation of 
 the covenant not to build referred to in paragraph 1. 
 
 The plaintiff prays as follows : — 
 
 1 . An injunction restraining the defendant, from permitting 
 
 the buildings alread}' erected by him to continue in 
 their existing state ; and from erecting any further or 
 other buildings of the same or a similar character on 
 the said piece of land. 
 
 2. Such further or other, etc. 
 
 Answer. 
 
 1. The defendant admits the truth of the statements in 
 paragraphs 1 to 3, both inclusive, of the plaintiff's bill. 
 
 2. The defendant denies as to paragraph 4 of the plain- 
 tiff's claim, that he ever had any actual notice of the cove- 
 nant between Z. and Y. referred to in paragraph 4 of the 
 plaintiff's bill ; and the defendant submits and insists, that 
 upon the facts stated in the plaintiff's bill the defendant 
 has had no constructive notice of the said covenant, and 
 
PEECEDENTS. 197 
 
 that he has full right to continue and complete the build- 
 ings which he has commenced. 
 
 Replication. 
 The plaintiff joins issue, etc. 
 
 INJUNCTIONS TO PROTECT TRADE MARKS. 
 
 Bill to restrain Infringement of Trade Marks. 
 
 Eaggett V. Findlater, 17 L. E. Eq. 29. 
 
 Between A. B Plaintiff, 
 
 and 
 C. D. and E. F. ... Defendants. 
 
 1. The plaintiff has for years and upwards carried 
 on the trade and business of a brewer at , and dur- 
 ing that period he has manufactured " stout " by a secret 
 process, and such stout has acquired and for many years 
 has had celebritj^ under the plaintiff's trade mark or desig- 
 nation of " Nourishing London Stout." 
 
 2. The plaintiff dulj' registered, in the month of , 
 in the j-ear , a label, under which he has sold such 
 stout as above mentioned, and his bottles have borne and 
 bear such labels as aforesaid. 
 
 3. The said labels have printed upon them the words 
 "Nourishing Stout," and are laid round the bottles, and 
 in the centre part of the said labels there are the names of 
 the plaintiff and of his predecessor in the business, and the 
 words ' ' Analyzed and reported on by Dr. ." 
 
 4. The defendants (also brewers) have for some time 
 past, viz., since the of , held themselves out 
 as selling " Nourishing Stout," and have lately attached 
 to their bottles labels containing the following words, viz. 
 
198 PEECEDENTS. 
 
 " Nourishing Stout, bottled by Findlater, Mackie & Co. of 
 16, Prince Albert street, Brighton," and they have sold 
 large quantities of stout in bottles labelled as aforesaid. 
 
 5. The defendants in using the words "nourishing 
 stout " have infringed the plaintiff's trade mark, and many 
 persons have been misled by the defendants using the said 
 words, and have bought considerable quantities of the 
 defendants' stout, believing it to be stout of the plaintiff's 
 manufacture. 
 
 The plaintiff prays : — 
 
 1. That the defendants may be restrained by injunction 
 
 from using on their labels the words " nourishing 
 stout,'' or in any other manner describing their beer 
 by the term " nourishing stout." 
 
 2. That an account may be taken of the profits made by 
 
 the defendants, by selling stout in bottles with labels 
 using the words " nourishing stout,'' and that such 
 profits may be ordered to be paid by the defendants 
 to the plaintiff. 
 
 3. Such further or other, etc. 
 
 Answer. 
 
 1. The defendants admit the truth of the statements in 
 paragraphs 1, 2 and 3 of the plaintiff's bill. 
 
 2. In answer to paragraph 4 of the plaintiff's bill, the 
 defendants say that for a long time before they commenced 
 manufacturing stout, they manufactured and sold ale under 
 the title of " Dinner Ale." That in the year they 
 began to manufactui-e and sell stout, and designated or 
 described it for some time in the labels put on their bottles, 
 merely by the words "Nourishing Stout." In the year 
 
 they altered their labels, and designated their stout 
 on the labels attached to their' bottles as "Nourishing 
 Stout, bottled by Findlater, Mackie & Co. of 16 Prince 
 Albert street, Brighton." 
 
( I' 
 
 PEECEDENTS. 199 
 
 3. To the best of the defendants' knowledge and belief, 
 so much of paragraph 5 of the plaintiff's bill, as alleges 
 that persons have been misled by the defendants' user of 
 the words "Nourishing Stout" on their labels coupled 
 with such other words as aforesaid, is not true. 
 
 4. The word "nourishing" was used by many brewers 
 on the labels of their bottles of stout long before the 
 plaintiff began to use the words " nourishing stout." 
 
 5. The defendants admit that they have made profits by 
 the sale of stout bearing the labels described in paragraph 
 2 of this their answer ; and they submit that they are en- 
 titled to retain such profits, and have full right to use on 
 their labels the language referred to in paragraph 2 of this 
 their answer. 
 
 Replication. 
 
 The plaintiff joins issue on the defence set up in para- 
 graphs 2, 3, 4 and 5 of the defendants' answer. 
 
 Bill to restrain Infringement of Trade Marks. 
 
 Harrison v. Taylor, 11 Jur. N. S. 408. 
 
 Between A. and B Plaintiffs, 
 
 and 
 C. and D Defendants. 
 
 1. The plaintiffs are manufacturers of and wholesale 
 dealers in mustard. In the year they adopted and 
 have ever since continued to use down to the present time 
 for their trade mark, the figure of an " ox," on the flank 
 of which figure is printed the word " Durham," the names 
 of the plaintiffs being printed above the word " Durham," 
 and the word " Mustard" below that word. 
 
 2. In the beginning of the year the defendants, 
 who are also mustard manufacturers, affixed to their can- 
 isters of mustard, labels containing as their trade mark 
 
200 PKECEDENTS. 
 
 the figure of an "ox," in form and attitude like that of 
 the ox on the plaintiffs' labels ; and have sold canisters 
 of mustard so labelled. 
 
 3. The plaintiffs' mustard is known in the trade as " the 
 ox mustard," and persons have frequently asked at shops 
 where the mustard made by the defendants is sold, for the 
 " ox mustard," meaning by that term mustard made by 
 the plaintiffs ; and such persons have been served with 
 mustard made by the defendants, believing it to be mus- 
 tard of the plaintiffs' make, and the plaintiffs have been 
 thus injured in their trade. 
 
 The plaintiffs pray : — 
 
 1. An injunction restraining the defendants from using on 
 
 their labels the figure of an ox, or in any other way 
 imitating the plaintiffs' trade mark. 
 
 2. Damages for injury done to the plaintiffs' trade by the 
 
 defendants imitating, as aforesaid, the plaintiffs' trade 
 mark. 
 
 3. Such further, etc. 
 
 Answee. 
 
 1. The defendants admit the truth of paragraph 1 of the 
 plaintiffs' statement of bill. 
 
 2. Until the year the defendants did not know, and 
 in fact had never heard of the alleged user bj^ the plaintiffs 
 as their trade mark, of the figure of an ox with the word 
 "Durham" on the flank of the ox. Long before that 
 date, viz. from the earlj' part of the year , the de- 
 fendants had used the figure of an ox as their own trade 
 mark, and the ox on the defendants' labels, is of a different 
 color from that of the plaintiffs' ox. The defendants do 
 not now, and never did put the word " Durham " on their 
 labels, and they have always put, and do now put their 
 own names in full on their labels ; so that no person using 
 the most ordinary amount of ej'esight and observation, 
 could possibly mistake the defendants' trade mark for the 
 
PEECEDENTS. 201 
 
 plaintiffs'. To the best of the defendants' information and 
 belief, no person has ever bought the defendants' mustard 
 believing it to be the plaintiffs'. And the defendants sub- 
 mit to the court that upon the facts above stated they Have 
 not infringed the plaintiffs' trade mark. 
 
 Replication. 
 The plaintiff joins issue, etc. 
 
INDEX. 
 
INDEX. 
 
 A. 
 
 ABATEMENT, 
 
 difference between abatement and simple defectiveness, 111. 
 ADMINISTRATION SUITS, 70. 
 ADMINISTRATOR. See Executor and Administratoe. 
 
 AFFIDAVIT, 
 
 evidence by, 119, 120. 
 rules as to framing, 121. 
 
 AMENDED BILLS, 
 object of, 106. 
 motion to amend must be founded upon a specified omission 
 
 or imperfection, 106. 
 may be amended either in forjn or substance, 107, 108. 
 amendment must not totally alter nature of bill, 109. 
 
 AMENDMENTS, 
 
 when biU may be amended, and when not, 66, 67. 
 
 plea may be amended, 93. 
 
 rule as to amending, 94. 
 
 amended bills, 106. 
 
 after replication can only be amended on leave, 108. 
 
 ANSWER, 
 
 distinction between plea and answer, 95. 
 
 voluntary or compulsory, 95. 
 
 fimction of answer, 95. 
 
 as to sufficiency, 96. 
 
 examples, 97, 98. 
 
 as to exceptions, 98, 99. 
 
206 INDEX. 
 
 ANSWER (continued). 
 
 when exceptions useful, 99. 
 
 modern practice as to excepting, 99. 
 
 how interrogatories must be answered, 100. 
 
 as to answering questions of law, 100, 101. 
 
 what objections may be taken by answer, 101. 
 
 must be full and complete, 101. 
 
 allegations in, must support evidence, 102. 
 
 as to alleging new and substantive matters in, 102. 
 
 how objection in the nature of demurrer or plea taten' in, 
 
 103. 
 a full defence both in law and fact, 103. 
 how persons sui juris answer, 104. 
 how persons not sui juris answer, 104. 
 supplemental answer, 105. 
 
 answer on oath may be waived by the plaintiff, 105. 
 nevertheless the defendant has a right to answer on oath, 
 
 105. 
 
 ANSWER IN SUPPORT OF A PLEA, 
 when necessary, 92. 
 example, Statute of Limitations, 92. 
 test of suificiency of, 93. 
 no part of the defence, 93. 
 
 ASSIGNEE, 
 
 of a chose in action, when a necessary party, 12, 13. 
 
 ATTORNEY GENERAL, 
 
 Commonwealth sues by, 10. 
 sues on the information of a relator, 10. 
 a bill by, is called an information, 11, 
 when called an information and bill, 11. 
 
 AVERMENT. See Plea. 
 
 B. 
 
 BACON (LORD), 
 
 definition of the word " use," 2 note. 
 
 BILLS, 
 
 usual mode of commencing suit, 17. 
 
 divisible into bills praying relief and bills praying only dis- 
 covery, 17. 
 
INDEX. 207 
 
 BILLS (continued). 
 
 to whom addressed, 18. 
 
 Lord Eedesdale's analysis of an original bill, 18, 19. 
 
 bills now consist of two principal divisions only, 20. 
 
 address, 20. 
 
 names and addresses of the plaintiffs, 21. 
 
 of the defendants, 21, 47. 
 
 residence of the plaintiff must be truly stated, 21 and note. 
 
 residence of citizens of different States in suits in the courts 
 of the United States, 21. 
 
 residence of an infant, 22. 
 
 of a married woman, 22. 
 
 when plaintiff sues as executor or administrator, how de- 
 scribed, 22. 
 
 when in behalf of himself, 22. 
 
 what the plaintiff must allege to show that he is entitled to 
 relief, 23-28. 
 
 modern system of pleading, 29. 
 
 certainty in stating part, 30. 
 
 every material fact must be alleged, 34, 36. 
 
 same precision not required in bills in equity as in pleadings 
 at law, 31. 
 
 time, when material, must be accurately laid, 31. 
 
 if a bill discloses no equity, it is bad on demurrer, 31. 
 
 if it is alleged that a right exists, the facts which give rise to 
 such right must be set forth, 31. 
 
 fraud must be distinctly charged, 31, 32. 
 
 every fact necessary to complete chain of title and injury 
 must be stated, 33-35. 
 
 demurrable for multifariousness, 36-43. 
 
 divided into paragraphs and numbered, 44. 
 
 prayer for relief, 44-47. 
 
 names of defendants inserted, 47. 
 
 must be signed, 47. 
 
 need not be sworn to, 47. 
 
 contains no interrogatories, 48. 
 
 when specific acts of fraud will protect a bill against de- 
 murrer, 49, 50. 
 
 allegation of wilful default in suits against trustees, etc. 
 50, 51. 
 
208 INDEX. 
 
 c. 
 
 CAMPBELL V. MAOKAY, 1 MyL & Cr. 603, rule as to multifar 
 riousness, 37-40. 
 
 CERTAINTY, 
 
 in pleading, 30, 
 
 by implication, 30 note. 
 
 same precision not required in bills in equity as in pleadings 
 at law, 31. 
 
 want of, should be taken by demurrer, 35. 
 COMMONWEALTH, 
 
 sues by the Attorney General, 10. 
 
 CONCLUSION, 122. 
 
 CONTEACT, 
 
 when demurrer lies to bill for enforcing, 62, 63. 
 COPYEIGHT, 
 
 bill to restrain infringement, 33. 
 
 COEPOEATION, 
 
 may sue and be sued in its corporate name, 10. 
 full corporate name must be stated, 10. 
 
 CEEDITOR SUITS, 70. 
 
 CEOSS BILL, 
 defined, 51. 
 when necessary, 52. 
 
 D. 
 
 DECEEES, 
 
 advantage of consulting them, 122. 
 DEFECTIVENESS, 
 
 difference between, and abatement. 111. 
 DEMUEEEES, 
 
 what a demurrer is, 53. 
 
 general demurrer, 53. 
 
 special, 53. 
 
 general or partial, may be combined, 53. 
 
 demurrer at common law and in equity analogous, 54, 55. 
 
 demurrer for want of legal right to relief, common to both 
 
INDEX. 209 
 
 DEMURRERS (continued). 
 
 jurisdictions, and may be interposed in the first instance, 
 
 54, 55. 
 form of demuiTer, 56, 57. 
 what a general demurrer admits, 56. 
 rule laid down by Baron Wood, 56 note, 
 speaking deumrrer, 57, 58. 
 grounds of demurrer, 58. 
 where no title in plaintiff, 58. 
 demurrer to the jurisdiction, 59. 
 
 when there is an adequate remedy at common law, 59. 
 jurisdiction of the courts of the United States, 60. 
 
 of Massachusetts, 60 note, 
 that the subject-matter is not within the jurisdiction, 62. 
 demurrer for want of general equity, 62. 
 examples in which a demurrer will lie on the merits, 62-64. 
 in suits for specific performance, 62, 63. 
 in suits in which the construction of a statute arises, 63. 
 in cases of patent and copyright, 64. 
 an objection arising out of the Statute of Limitations, Statute 
 
 of Frauds, Statute of Trusts, or any other statute, may be 
 
 taken by demurrer as well as by plea, 65, note. 
 on the grounds of public policy, 65. 
 summary of doctrine as to demurrer, 66. 
 when bill may be amended, and when not, 66, 67. 
 uses of demurrer, 67. 
 for want of parties, 68-82. 
 a dilatory plea, 67. 
 when a bar to a new bill, 83. 
 demurrers inapplicable to pleas or to answers, 83. 
 See Parties. 
 DILATORY PLEA, 
 demuiTer, when, 67. 
 plea, when, 87 note, 
 not favored, 87 note. 
 
 DISCLAIMER, 
 what, 104. 
 when to be used, 104. 
 
 DISCOVERY, 
 
 right to, as distinguished from the right to relief, 3. 
 14 
 
210 INDEX. 
 
 DUPLICITY, 
 
 plea must not be double, 85. 
 
 E. 
 
 EQUITABLE RIGHT, 
 
 distinguisbed from ecLuitable estate, 28 note. 
 EQUITY, 
 
 defined, 1. 
 
 jurisdiction of courts of, 2, 3, 60. 
 EVIDENCE, 
 
 proceedings on going into, 119. 
 EXECUTORS AND ADMINISTRATORS, 
 
 need not be described as such in the address, 22. 
 
 in suits against, advisable to insert an allegation of wilful 
 default, 50, 51. 
 
 F. 
 
 FORECLOSURE. See Demurrer. 
 FRAUD, 
 
 must be distinctly charged, 31. 
 
 effect of allegation of, not proved, 32. 
 
 general allegations of, without alleging specific acts, 50. 
 
 G. 
 
 GENERAL RELIEF, 
 
 effect of prayer for, 45, 46. 
 
 I. 
 
 IMPERTINENCE, 
 
 defined, 35, 36. 
 
 distinction between, and scandal, 36. 
 INFANTS, 
 
 sue by their next friend, 10, 13. 
 
 address of next friend must be stated, 22. 
 
 formula for commencement of suit, 10, 14. 
 
 suit against, how defended, 14. 
 
INDEX. 211 
 
 INFORMATION, 
 
 biU by Attorney General is termed, 11. 
 when the relator joins with the Attorney General the suit is 
 termed an information and bill, 11. 
 
 INJURY, 
 
 distinction between equitable and legal, 9 note, 
 how to he stated, 33, 34. 
 
 INTERLOCUTORY APPLICATIONS, 44. 
 
 INTERROGATORIES, 
 use of, 48. 
 
 filed separate from bill, 48. 
 heading of, 48. 
 
 must be founded on allegations, 48. 
 mode of drawing, 48 and note, 
 example, 49. 
 
 JUDICATURE ACTS, 
 
 object of, 7. 
 
 rules of pleading under, 29 note. 
 JUDICATURE COMMISSIONERS, 
 
 extracts from report of, 8 note. 
 JURISDICTION. See Demurreb. 
 
 LAW, 
 
 conclusions of, need not be averred, 35. 
 
 M. 
 
 MARRIED WOMEN, 
 
 sue by their next friend, 10. 
 
 address of next friend must be stated, 22. 
 
 formula for commencement of suit, 10. 
 
 when husband must be joined with her as a plaintiff or 
 
 defendant, 15. 
 under the recent statutes may sue and be sued as if sole, 16. 
 
212 INDEX. 
 
 MASSACHUSETTS, COURTS OF, 
 
 jurisdiction of, in equity, 60 note. 
 MISJOINDER, 
 
 defined, 37. 
 
 distinction between, and multifariousness, 38, 39. 
 MOTIONS, 
 
 made without any form of pleading, 116. 
 
 two classes of, 116. 
 MULTIFARIOUSNESS, 
 
 defined, 36. 
 
 rule in Campbell v. Mackay, 1 Myl. & Cr. 37-40. 
 
 distinction between, and misjoinder, 38, 39. 
 
 test of, 40, 41. 
 
 examples of, 41-43. 
 
 K 
 
 NEXT FRIEND. See Maeried Women; Infant. 
 " Nullus recedat a curia cancellarise sine remedio," 1. 
 
 0. 
 
 ORIGINAL "WRIT, 
 account of, 1-3. 
 
 PARTIES, 
 
 what persons are entitled to sue, and in what manner they 
 
 may sue, 9. 
 a bill may be demurrable for want of, 68. 
 principle on which a demurrer of this kind is determined, 68. 
 the demurrer must suggest who are the necessary parties, 
 
 68, 69. 
 
 principles on which questions of parties are determined, 
 
 69, 71. 
 examples, 71. 
 trustees, 71, 82. 
 mortgage suits, 72, 79. 
 in suits by creditors, 72. 
 administration suits, 73, 74, 77, 78. 
 
INDEX. 213 
 
 PARTIES (continued). 
 partnership suits, 75. 
 shareholders in a company, 76, 77. 
 suits for specific performance, 78. 
 suits between mortgagors and mortgagees, 79, 82. 
 suits against trustees, 82. 
 
 See Assignee ; Attorney General ; Commonwealth ; Infants ; 
 
 Married Women; Relator. 
 PARTNERS. See Parties. 
 PATENT, 
 
 bill to restrain infringement, 33. 
 
 PETITIONS, 
 
 what and when used, 117. 
 prayer of, 117. 
 
 PLAINTIFF, 
 
 what he must show to sustain bill, 23, 24. 
 
 PLEA, 
 
 what it is, 55, 84, 88. 
 at common law, 84. 
 bad for duplicity, 85. 
 certainty in, 85. 
 observations on, 85. 
 principle of, 85. 
 when a bar to the bill, 86. 
 modern practice relating to, 87. 
 office of, 88. 
 
 what must be averred, 88, 90. 
 example. Statute of Limitations, 88, 89. 
 must tender only one issue, 89. 
 examples, 89, 90 
 
 everything is construed against the plea, 90. 
 averments necessary to exclude intendments, 90. 
 is a special answer, 91. 
 
 when interrogatories are filed and when not, 91, 92. 
 answer iu support of a plea, 92, 93. 
 may be amended, 93. 
 rule as to amendments, 94. 
 
 form of a plea ; see Saunders v. Druce, 3 Drew. 140 ; Drewry 
 Eq. PI. 146. 
 
214 INDEX. 
 
 PLEADING, 
 defined, 4, 5. 
 rules of equity, 5, 6. 
 in ancient times, 6. 
 brevity and conciseness in, 7. 
 object of every system of, 7. 
 system of, at common law and in equity, 8 note, 
 modern system of, 29. 
 
 PRACTICE, 
 rules of, 4. 
 
 PEAYER, 
 
 function of, 44. 
 
 must consist with allegations, 44, 45. 
 
 reason of the rule, 45. 
 
 for general relief, effect of, 45, 46. 
 
 how framed, 46. 
 
 principle with regard to alternate relief, 46. 
 
 divided into paragraphs and numbered, 47. 
 
 PROLIXITY, 
 
 to be avoided, 29. 
 
 PROOF, 
 
 what may be proved, 34. 
 
 must be founded on allegations in biU, 34, 35. 
 
 PUBLIC POLICY, 
 
 bill against, demurrable, 65. 
 
 PURCHASER, 
 
 how he must allege title, 24. 
 
 E. 
 
 REDEMPTION. See Parties. 
 
 RELATOR, 
 who is, 10. 
 
 REPRESENTATION, 
 parties by, 70. 
 
INDEX. 215 
 
 REVIVOR AND SUPPLEMENT, AND SUPPLEMENTAL 
 BILLS, 110. 
 
 EIGHT, 
 
 if it is alleged that a right exists, the facts which give rise to 
 such right must be set forth, 31. 
 
 S. 
 SCANDAL, 
 
 nothing relevant is, 36. 
 
 SPEAKING DEMURRER, 
 
 what is, 57, 58. 
 
 SPECIFIC PERFORMANCE. See Parties. 
 
 STATUTE, 
 
 may be ground of demurrer as well as of plea, 65. 
 
 STATUTE OF FRAUDS, 
 
 if the bill shows affirmatively that the case is within the 
 statute, objection may be taken by demurrer, 65. 
 
 STATUTE OF LIMITATIONS, 
 
 if the bill shows affirmatively that the statute bars the right 
 or remedy of the plaintiif, the objection may be taken by 
 demurrer, 65. 
 
 STATUTE OF TRUSTS, 
 
 if the declaration of a trust is not in writing, the objection 
 may be taken by demurrer, 65 note. 
 
 STATUTE OF USES, 2. 
 
 SUFFICIENCY. See Answer. 
 
 SUI JURIS, 
 
 persons sui juris sue in their own names, 2. 
 
 SUIT, 
 
 what subject of, 1. 
 
 must be equitable right, 1. 
 
 and equitable injury, 1. 
 
 distinction between equitable and legal injury, 1 note. 
 
 SUPPLEMENTAL ANSWER, 
 defined, 105. 
 
216 INDEX. 
 
 SUPPLEMENTAL BILL, 
 
 what and when requisite, 111, 112. 
 can only be filed by leave of court, 111. 
 
 TENANT IN REMAINDER, 
 how he must allege title, 25. 
 
 TIME, 
 
 when material, must be accurately laid, 31. 
 
 TITLE, 
 
 how plaintiff must show, 23, 24. 
 general rule as to stating, 24-27. 
 form of pleading, 26. 
 
 TITLE TO RELIEF, 
 
 how it must be shown, 33, 34. 
 
 TRUSTEES, 
 
 allegations in bill against, 50, 51. 
 See Pabties. 
 
 U. 
 
 UNITED STATES, COURTS OF THE, 
 
 jurisdiction of, founded on the fact that the parties are citizens 
 
 of different States, 21. 
 that fact must be distinctly alleged, 21. 
 formulas for this allegation, 21, 22. 
 test of jurisdiction, 60. 
 objection of want of, may be taken by the court, 61. 
 
 " USE," 
 
 Lord Bacon's definition of, 2 note. 
 
 VENDOR, 
 
 how he must allege title, 24, 25. 
 
INDEX. 217 
 
 W. 
 
 WASTE, 
 
 bill to restrain, 34. 
 
 WILFUL DEFAULT, 
 
 aUegation of, in bill against trustees or executors, 50, 51. 
 
 WORDS, 
 
 of established meaning should be adhered to, 6. 
 
 University Press : John Wilson & Son, Cambridge.