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 A TREATISE 
 
 ON 
 
 PLEADING AND PRACTICE IN EQUITY 
 
 IN 
 
 THE COURTS OF THE UNITED STATES; 
 
 WITH CHAPTERS ON 
 
 JURISDICTION OF THE FEDERAL COURTS, PRACTICE AT COMMON 
 
 LAW, REMOVAL OF CAUSES FROM STATE TO FEDERAL 
 
 COURTS, AND WRITS OF ERROR AND APPEALS, 
 
 WITH SPECIAL REFERENCE TO PATENT CAUSES AND THE 
 FORECLOSURE OF RAILWAY MORTGAGES. 
 
 By ROGER FOSTER, 
 
 OF THE NEW YORK BAR, 
 
 AUTHOR OF "FOSTER'S FEDERAL JUDICIARY ACTS" AND "TRIAL BY NEWSPAPER;" 
 
 AND LECTURER ON FEDERAL JURISPRUDENCE AT THE LAW 
 
 SCHOOL OF YALE UNIVERSITY. 
 
 BOSTON: 
 THE BOSTON BOOK COMPANY. 
 
 1890.
 
 Copyright, 1890, 
 By Kogeb Foster. 
 
 T 
 
 JSnfbetsftD Stress : 
 John Wilson and Son, Cambridge.
 
 I 
 
 -4. 
 
 TO 
 
 Cfje jfflemorp of mp JFatljer, 
 
 DWIGHT FOSTER, 
 
 FORMERLY JUSTICE OF THE SUPREME JUDICIAL COURT 
 OF MASSACHUSETTS, 
 
 / DEDICATE THIS BOOK, 
 
 BEGUN AT HIS SUGGESTION, 
 ALTHOUGH HE DID NOT LIVE TO CORRECT ITS FAULTS.
 
 PREFACE. 
 
 The object of this work is to furnish a guide to the 
 whole field of practice in the Federal Courts, except in 
 cases of admiralty, criminal prosecutions, and before the 
 Court of Claims ; including references to all the statutes 
 and the principal decisions upon the subject. Greater 
 space has been given to practice in equity on account of 
 its importance and obscurity. The chapter on the practice 
 on Writs of Error and Appeals is not intended as more 
 than a summary which may be of convenience to the 
 practitioner. The practice in the Supreme Court of the 
 United States cannot be adequately described in less than 
 at least one volume. The author has used with great 
 freedom many treatises on chancery pleadings and prac- 
 tice, and collections of annotations upon statutes of the 
 United States. Besides the great work of Lord Redes- 
 dale, he is especially indebted for assistance to Daniell's 
 Chancery Practice, with the notes of successive editors, 
 including those of Chancellor Cooper ; Bump's annota- 
 tions of the statutes regulating Federal Procedure; and 
 the manuscript lectures on equity pleading delivered be- 
 fore the Law School of Boston University, by the late 
 Judge D wight Foster. The citations from Daniell are 
 taken from the second and fifth American editions. The 
 writer is aware that both these editions contain many
 
 vi PREFACE. 
 
 rules of modern English chancery practice which are not 
 binding upon the courts of the United States ; but he has 
 been careful to exclude all such from this work. The fact 
 that these later editions are more accessible to the profes- 
 sion is his reason for referring to them rather than to the 
 first American edition. He has received great assistance 
 and encouragement from many members of the bench and 
 bar; especially from his teachers, Professor Theodore W. 
 Dwight and ex-Judge John F. Dillon, and from John A. 
 Shields, Esq., the Clerk of the Circuit Court of the United 
 States for the Southern District of New York, who has 
 very kindly examined and approved the chapter on Costs. 
 He is fully conscious that the book contains many errors 
 and omissions. The pressing need of a treatise upon the 
 subject is his only excuse for the publication of so imper- 
 fect a work. And he will welcome any criticism, whether 
 public or private, which will show him how, in a subse- 
 quent edition, to make it more useful to the profession. 
 
 New York, 
 
 August 31, 1889.
 
 TABLE OF CONTENTS. 
 
 Page 
 
 Table of Cases xxiii 
 
 Table of Statutes . lxxvi 
 
 Table of Equity Rules lxxx 
 
 Table of Rules of Supreme Court lxxx 
 
 CHAPTER I. 
 
 JURISDICTION. 
 
 § 1. Equitable Jurisdiction in General „ . . . 1 
 
 2. General Survey of the Jurisdiction of Courts of Equity .... 3 
 
 3. Constitutional Provisions affecting the Jurisdiction of the Federal 
 
 Courts 4 
 
 4. The Distinction between Law and Equity in the Federal Courts . 5 
 
 5. General Rules affecting the Jurisdiction in Equity of the Federal 
 
 Courts « 6 
 
 6. State Statutes cannot impair the Jurisdiction nor regulate the 
 
 Practice of Federal Courts of Equity 8 
 
 7. State Laws creating new Rights are enforced by Federal Courts of 
 
 Equity 9 
 
 8. State Statutes of Limitation 10 
 
 9. Property in the Custody of a State Court 11 
 
 10. Property in the Custody of a Federal Court 12 
 
 11. Illustrations of Equitable Jurisdiction in the Federal Courts . . 12 
 
 12. Illustrations of Cases where the Federal Courts have refused to 
 
 assume Equitable Jurisdiction . c „ 15 
 
 13. Federal Courts which have Jurisdiction in Equity ...... 20 
 
 14. Original Jurisdiction of the Supreme Court 20 
 
 15. Original Jurisdiction of the Circuit Courts of the United States . 21 
 
 16. Matter in Dispute 23 
 
 17. Suits arising under the Constitution or Laws of the United 
 
 States 25 
 
 18. Controversy between Citizens of different States 26 
 
 19. Citizenship 26 
 
 20. Under Grants of different States 27 
 
 21. Ancillary Jurisdiction 28 
 
 22. Limitations upon Jurisdiction by Residence 29
 
 vill TABLE OF CONTENTS. 
 
 Page 
 § 23. Special Limitation upon Jurisdiction of Circuit Court for Southern 
 
 District of New York 32 
 
 24. Suits by Assignees 32 
 
 25. Jurisdiction of the District Courts of the United States .... 34 
 
 26. Territorial Jurisdiction and Terms of the Supreme, Circuit, and 
 
 District Courts of the United States 35 
 
 27. Sources of Federal Equity Practice 56 
 
 Note upon Limitations on Jurisdiction by Residence in certain 
 
 States 58 
 
 CHAPTER II. 
 
 PERSONS WHO MAY BE PLAINTIFFS OR DEFENDANTS IN A SUIT 
 IN EQUITY. 
 
 28. General Rule as to Persons capable of being Plaintiffs .... 64 
 
 29. States as Plaintiffs 64 
 
 30. Alien Enemies as Plaintiffs 64 
 
 31. Married Women as Plaintiffs 64 
 
 32. Suits on behalf of Infants 65 
 
 33. Suits on behalf of Idiots, Lunatics, and Persons of Weak Mind . 67 
 
 34. Capacity of Foreign Executors, Administrators, and Receivers 
 
 to sue 68 
 
 35. Who may be Defendants to a Bill in Equity 68 
 
 36. The United States as a Defendant 68 
 
 37. Liability of States to Suits by Private Persons 71 
 
 38. Liability of a State to a Suit by another State 77 
 
 39. Suits against Infants 78 
 
 40. Suits against Idiots, Lunatics, and Persons of Weak Mind ... 79 
 
 41. Suits against Married Women 80 
 
 CHAPTER III. 
 
 PARTIES. 
 
 42. General Rule as to Parties . 81 
 
 43. Parties with no Interest in the Subject-Matter of the Suit ... 82 
 
 44. Persons who on account of their Interest need not be made Parties 
 
 to a Suit in Equity 83 
 
 45. Cases where the Law has furnished a Representative 85 
 
 46. Suits by a Complainant on behalf of himself and others similarly 
 
 situated 88 
 
 47. Illustrations of Bills filed by Representatives 89 
 
 48. Suits against one or more of a Class 90 
 
 49. Suits by or against one or more as Representatives of a Class 
 
 claiming a Common Right 91 
 
 50. Omission of Defendants not within the Jurisdiction of the Court . 92
 
 TABLE OF CONTENTS. ix 
 
 Page 
 § 51. Formal Parties who may be omitted when without the Juris- 
 diction 95 
 
 52. Parties whose Interest is Separable 96 
 
 53. Parties indispensable to a Decree 98 
 
 54. When Numerous Interests have been created for the Purpose of 
 
 preventing the Plaintiff from obtaining Equitable Relief . . 102 
 
 55. When a Person consents to the Relief sought 102 
 
 56. When the Plaintiff waives his Right against a Person .... 103 
 
 57. When the Interest of an absent Person is evidently very small . 103 
 
 58. When the Right of Administration is in Dispute 103 
 
 59. Relaxation of Rules as to Parties in Special Cases 103 
 
 60. Restatement of the Rules as to Parties 104 
 
 61. Objection for Want of Parties 105 
 
 62. Objection for Joinder of Improper Parties 106 
 
 CHAPTER IV. 
 
 BILLS. 
 
 63. Informations 108 
 
 64. Definition and Classification of Bills 109 
 
 65. Frame of a Bill in Equity . Ill 
 
 66. The Address and Introduction 112 
 
 67. The Narrative Part of a Bill 113 
 
 68. Scandal and Impertinence 114 
 
 69. Certainty 116 
 
 70. Inconsistency and Bills with a Double Aspect 117 
 
 71. Multifariousness in General 119 
 
 72. Multifariousness by Misjoinder of Plaintiffs 120 
 
 73. Multifariousness by Misjoinder of Defendants 122 
 
 74. Multifariousness without Misjoinder of Parties 124 
 
 75. Objections for Multifariousness 126 
 
 76. Special Provisions of the Federal Equity Rules and Practice . . 127 
 
 77. Bills to enjoin the Infringement of Patents 129 
 
 78. General Rules of Equity Pleading 131 
 
 79. The Common Confederacy Clause 133 
 
 80. The Charging Part 134 
 
 81. The Jurisdiction Clause 134 
 
 82. The Interrogatory Clause 135 
 
 83. The Prayer for Relief 136 
 
 84. Waivers and Offers 137 
 
 85. The Prayer of Process 140 
 
 86. The Signature to a Bill 141 
 
 87. Affidavits to Bills 142 
 
 88. Bills of Interpleader 142 
 
 89. Bills in the Nature of Interpleader 146 
 
 90. Bills of Certiorari 146
 
 X TABLE OF CONTENTS. 
 
 CHAPTER V. 
 
 SUBPOENAS TO APPEAR AND ANSWER. 
 
 Page 
 
 § 91. Definition and Form of Subpoena 148 
 
 92. Issue of the Subpoena . 150 
 
 93. When a Subpoena is necessary . 150 
 
 94. Personal Service of a Subpoena 151 
 
 95. Service upon Corporations 153 
 
 96. Substituted Service of a Subpoena 155 
 
 97. Statutory Service of a Subpoena 157 
 
 98. Exemptions from Service of a Subpoena 159 
 
 CHAPTER VI. 
 
 APPEARANCE. 
 
 99. Definition of an Appearance 161 
 
 100. What constitutes an Appearance 161 
 
 101. Effect of an Appearance 162 
 
 102. When an Appearance must be made 162 
 
 CHAPTER VII. 
 
 TAKING BILLS PRO CONFESSO. 
 
 103. When a Bill may be taken pro confesso „ 164 
 
 104. Practice in taking a Bill pro confesso 165 
 
 CHAPTER VIII. 
 
 DEMURRERS. 
 
 105. Definition and General Characteristics of a Demurrer .... 170 
 
 106. Admissions by a Demurrer 170 
 
 107. Demurrers to Parts of Bills 172 
 
 108. Classification of Demurrers to the Relief 174 
 
 109. Demurrers to the Discovery 177 
 
 110. Of what Defects Advantage should be taken by Demurrer . . 178 
 
 111. When a Demurrer should be Filed 178 
 
 112. Title of Demurrer 179 
 
 113. Protestation 179 
 
 114. Statement of the Extent of the Demurrer 179 
 
 115. Statement of Causes of Demurrer 180 
 
 116. Demurrers ore tenus 182 
 
 117. Prayer of Judgment 182 
 
 118. Certificate of Counsel 183
 
 TABLE OF CONTENTS. XI 
 
 Page 
 
 § 119. Motions to take Demurrers off the File .......<, . 183 
 
 120. Setting Demurrer down for Argument 184 
 
 121. Argument of Demurrer 184 
 
 122. Overruling a Demurrer 185 
 
 123. Sustaining a Demurrer 186 
 
 CHAPTER IX. 
 
 PLEAS. 
 
 124. Definition and Classification of Pleas 188 
 
 125. Pleas in Abatement in General 190 
 
 126. Pleas to the Jurisdiction 191 
 
 127. Pleas to the Person 191 
 
 128. Pleas to the Bill 192 
 
 129. Plea of Pendency of another Suit 193 
 
 130. Plea of Want of Parties 196 
 
 131. Plea of Statute . . 196 
 
 132. Plea of Matter of Record 198 
 
 133. Plea of Matter in Pais 199 
 
 134. Pleas to the Discovery 200 
 
 135. When a Plea must be filed 200 
 
 136. Frame of a Plea 201 
 
 137. Answers with Pleas . 202 
 
 138. Proceedings of the Plaintiff when a Plea is filed 204 
 
 139. Motion to take a Plea off the File 205 
 
 140. Argument of a Plea 206 
 
 141. Motion for a Reference of a Plea 20S 
 
 142. Hearing upon Pleas 209 
 
 143. General Remarks upon Pleas 210 
 
 CHAPTER X. 
 
 ANSWERS AND DISCLAIMERS. 
 
 144. Pleading Defenses in an Answer 211 
 
 115. Defenses peculiar to Patent Cases 212 
 
 146. Admissions and Denials independent of Discovery 215 
 
 147. Impertinence and Scandal 216 
 
 148. Discovery 217 
 
 149. Proceedings to compel Answer 221 
 
 150. Frame of Answer 221 
 
 151. Signature and Oath to Answer 223 
 
 152. Motions to take Answers off the File 224 
 
 153. Exceptions for Insufficiency 225 
 
 154. Supplemental Answers 228 
 
 155. Disclaimers 228
 
 Xii TABLE OF CONTENTS. 
 
 CHAPTER XL 
 
 REPLICATIONS. 
 
 Page 
 
 § 156. Definition and History of Replications 230 
 
 157. When a Replication should be Filed 231 
 
 158. Effect of a Replication 232 
 
 159. Frame of a Replication 232 
 
 CHAPTER XH. 
 
 AMENDMENTS. 
 
 160. Amendments in General 234 
 
 161. When Bills can be Amended 234 
 
 162. Form and Effect of Amendment of a Bill 236 
 
 163. What Amendments to Bills may be made 237 
 
 164. Amendment by Pleading Matters subsequent to the Filing of 
 
 the Bill 239 
 
 165. Proceedings upon an Amended Bill 241 
 
 166. Amendment of Demurrers, Pleas, and Replications .... 242 
 
 167. Amendment of Answers 242 
 
 168. Practice in obtaining Leave to Amend 244 
 
 CHAPTER XIII. 
 
 CROSS-BILLS. 
 
 169. Definition and Origin of Cross-Bills 246 
 
 170. When a Cross-Bill should be Filed 246 
 
 171. When a Cross-Bill should not be Filed 247 
 
 172. Frame of a Cross-Bill 250 
 
 173. Proceedings upon Cross-Bills 252 
 
 CHAPTER XIV. 
 
 BILLS OF REVIVOR ; SUPPLEMENTAL BILLS ; BILLS OF REVIVOR 
 AND SUPPLEMENT ; AND BILLS IN THE NATURE OF THE 
 SAME. 
 
 174. Abatement 255 
 
 175. Effect of Abatement 257 
 
 176. When a Suit may be Revived and Effect of Revivor .... 258 
 
 177. Who may Revive a Suit 259 
 
 178. Manner of Revivor in General 260
 
 TABLE OF CONTENTS. xill 
 
 Page 
 
 § 179. Definition of Bills of Revivor and Parties to the Same ... 261 
 
 180. Frame of a Bill of Revivor 262 
 
 181. Proceedings upon Bills of Revivor 263 
 
 182. Bills in the Nature of Bills of Revivor in general 266 
 
 183. Frame of Bills in the Nature of Bills of Revivor and Proceed- 
 
 ings upon them 267 
 
 184. Bills of Revivor and Supplement 268 
 
 185. Supplemental Bills in the Nature of Bills of Revivor .... 268 
 
 186. What renders a Suit defective 269 
 
 187. Supplemental Bills 270 
 
 188. Parties and Frame of a Supplemental Bill 272 
 
 189. Proceedings upon Supplemental Bills . . 273 
 
 190. Bills in the Nature of Supplemental Bills in general .... 276 
 
 191. Frame of a Bill in the Nature of a Supplemental Bill .... 277 
 
 192. Proceedings upon Bills in the Nature of Supplemental Bills . 277 
 
 CHAPTER XV. 
 
 INTERLOCUTORY APPLICATIONS AND PETITIONS. 
 
 193. Definition and Classification of Interlocutory Applications . . 279 
 
 194. Definition and Classification of Motions 279 
 
 195. Motions of Course 279 
 
 196. Special Motions without Notice 280 
 
 197. Notice of Motion 282 
 
 198. Argument of Motions 285 
 
 199. Petitions in General 287 
 
 200. Petitions for Leave to Sue in forma pauperis ....... 288 
 
 201. Petitions of Intervention 290 
 
 202. Form of Petitions and Practice upon them 292 
 
 203. Orders 293 
 
 204. Judges who may grant Orders 295 
 
 CHAPTER XVI. 
 
 INJUNCTIONS. 
 
 205. Definition, Classification, and Objects of Injunctions .... 297 
 
 206. Injunctions to enforce Trusts and other purely Equitable Rights 297 
 
 207. Injunctions to restrain Corporations from violating their 
 
 Charters 298 
 
 208. Injunctions to enforce the Specific Performance of Covenants 
 
 and other Contracts affecting Land 300 
 
 209. Injunctions to restrain a Multiplicity of Suits 301 
 
 210. Injunctions to prevent Irreparable Injury for which the Remedy 
 
 at Law is inadequate ; in general 302
 
 XIV TABLE OF CONTENTS. 
 
 Page 
 
 § 211. Injunctions to stay Proceedings in other Courts 302 
 
 212. Injunctions to restrain the Alienation of Property 305 
 
 213. Injunctions to prevent Waste 306 
 
 214. Injunctions to prevent the Continuance of a Nuisance . . . 307 
 
 215. Injunctions to restrain Trespass 309 
 
 21G. Injunctions to restrain the Infringement of Patents .... 310 
 
 217. Injunctions to restrain the Infringement of Copyrights . . . 314 
 
 218. Injunctions to restrain the Unlawful Use of Trade-marks . . 317 
 
 219. Injunctions to prevent the Opening of Letters 318 
 
 220. Injunctions to compel the Performance or prevent the Breach 
 
 of Contracts not affecting Land 318 
 
 221. Injunctions to compel the Delivery of Personal Property tor- 
 
 tiously withheld 319 
 
 222. Injunctions authorized by Statute 319 
 
 223. When Injunctions will not Issue 321 
 
 224. Distinction between the Judicial Writ and the Writ Remedial 324 
 
 225. Distinction between Mandatory and Prohibitory Injunctions . 324 
 
 226. Distinction between Provisional and Perpetual Injunctions . . 325 
 
 227. Distinction between Common and Special Injunctions . . . 326 
 
 228. Time and Place of Applications for Interlocutory Injunctions . 326 
 
 229. Injunctions not prayed for in the Bill 327 
 
 230. Special Practice of the Federal Courts in the Issue of Injunc- 
 
 tions 328 
 
 231. Notice of Application for Interlocutory Injunction .... 330 
 
 232. Affidavits upon an Application for an Injunction 331 
 
 233. Rules of Decision upon Applications for Interlocutory Injunc- 
 
 tions 333 
 
 234. The Writ of Injunction 334 
 
 235. Dissolution of Interlocutory Injunctions in general .... 335 
 
 236. Dissolution of Injunctions for Causes arising after their Issue . 337 
 
 237. The Imposition of Terms upon the Issue, Denial, Dissolution, 
 
 or Continuance of an Injunction 338 
 
 238. Perpetual Injunctions 340 
 
 CHAPTER XVII. 
 
 RECEIVERS. 
 
 239. Definition of Receiver 342 
 
 240. When Receivers will be Appointed 342 
 
 241. Rules regulating the Appointment of Receivers 346 
 
 242. Ancillary Receivers 346 
 
 243. Terms upon the Appointment of Receivers, and Preferences in 
 
 Foreclosure Suits 347 
 
 244. Property over which Receivers may be Appointed 356 
 
 245. Powers of Receivers in general 359 
 
 246. Powers of Receivers of Railroads 361
 
 TABLE OF CONTENTS. XV 
 
 Page 
 
 § 247. Receivers' Certificates 365 
 
 218. Advice to Receivers 368 
 
 249. Litigation by Receivers 369 
 
 250. Duties of Receivers 372 
 
 251. Liability of a Receiver 374 
 
 252. Manner of applying for the Appointment of a Receiver . . . 376 
 
 253. Who may apply for the Appointment of a Receiver .... 378 
 
 254. Manner of the Appointment of a Receiver 379 
 
 255. Who should be appointed Receiver 379 
 
 256. The Receiver's Security 381 
 
 257. Receivers' Accounts 383 
 
 258. Compensation of Receivers 384 
 
 259. Removal of Receivers 385 
 
 260. Discharge of a Receiver 387 
 
 CHAPTER XVIII. 
 
 THE WRIT OF NE EXEAT REPUBLICA. 
 
 261. Definition of the Writ of Ne Exeat Republica, and when it will 
 
 Issue 389 
 
 262. Against whom the Writ will Issue 390 
 
 263. Practice in obtaining the Writ of Ne Exeat 391 
 
 CHAPTER XIX. 
 
 EVIDENCE AT LAW AND IN EQUITY. 
 
 264. Evidence in General 395 
 
 265. Admissions 395 
 
 266. Constructive Admissions 396 
 
 267. Documentary Evideuce in General 397 
 
 268. Federal Statutes regulating Admission of Documentary Evi- 
 
 dence 398 
 
 269. Definition and Use of an Affidavit 406 
 
 270. Manner of Verifying an Affidavit 406 
 
 271. Title of an Affidavit 407 
 
 272. Form of an Affidavit 407 
 
 273. Execution of an Affidavit 408 
 
 274. Competency of Witnesses 409 
 
 275. Subpoenas ad Testificandum 411 
 
 276. Service of a Subpoena ad Testificandum 412 
 
 277. Compelling a Witness to testify 412 
 
 278. Testimony taken in Equity which maybe used in other Courts . 413 
 
 279. Bills to perpetuate Testimony 413
 
 XVI TABLE OF CONTENTS. 
 
 Page 
 
 § 280. Bills to take Testimony de bene esse 416 
 
 281. Bills of Discovery 416 
 
 282. Testimony taken before a Cause is at Issue 418 
 
 283. Testimony taken after a Cause is at Issue within the Jurisdic- 
 
 tion of the Court 419 
 
 284. Present Method of taking Testimony within the Jurisdiction . 420 
 
 285. Testimony taken after a Cause is at Issue and beyond the 
 
 Jurisdiction of the Court 423 
 
 286. Depositions de bene esse under the Acts of Congress .... 424 
 
 287. Form of Deposition under Acts of Congress 426 
 
 288. Commission issued under a Dedimus Potestatem 427 
 
 289. Proceedings under a Dedimus Potestatem 428 
 
 290. Letters Rogatory 432 
 
 CHAPTER XX. 
 
 DISMISSING BILLS OTHERWISE THAN AT A HEARING. 
 
 291. Dismissal of Bills by the Plaintiff . . 434 
 
 292. Dismissal of Bills for want of Prosecution 435 
 
 293. Dismissal for want of Jurisdiction 436 
 
 294. Dismissal for Failure to perfect or revive a Suit 439 
 
 295. Election 439 
 
 CHAPTER XXI. 
 
 THE HEARING. 
 
 296. Bringing a Suit to a Hearing 441 
 
 297. Manner of Hearing a Cause * 441 
 
 298. Rules of Decision upon a Hearing 442 
 
 299. Objections which cannot be made at the Hearing 444 
 
 300. Action of the Court upon a Hearing 445 
 
 CHAPTER XXII. 
 
 ISSUES AT LAW. 
 
 301. Power of Courts to direct Issues at Law 447 
 
 302. Matters concerning which an Issue is directed 448 
 
 303. Time when an Issue is directed 449 
 
 304. Manner of trying an Issue 449 
 
 305. Effect of the Finding of a Jury upon an Issue 451 
 
 306. Proceedings after the Trial of an Issue 453
 
 TABLE OF CONTENTS. xvii 
 
 CHAPTER XXIII. 
 
 PROCEEDINGS IN A MASTER'S OFFICE. 
 
 Page 
 
 § 307. References to Masters in General 454 
 
 308. Who may be appointed Master 455 
 
 309. Bringing on a Reference 455 
 
 310. Parties entitled to attend a Reference before a Master . . . 456 
 
 311. Proceedings before a Master in General 457 
 
 312. A State of Facts 459 
 
 313. Evidence before a Master 460 
 
 314. Masters' Reports and* Compensation 461 
 
 315. Exceptions to Masters' Reports 462 
 
 316. Sales by Masters 463 
 
 CHAPTER XXIV. 
 
 DECREES. 
 
 317. Definition and Classification of Decrees 466 
 
 318. Final and Interlocutory Decrees 466 
 
 319. Decrees in personam 467 
 
 320. Decrees in rem 469 
 
 321. Absolute and Conditional Decrees 469 
 
 322. Decrees nisi 470 
 
 323. Decrees in the Nature of Decrees nisi 473 
 
 324. Time of Entry of Decree 473 
 
 325. Frame of Decrees 474 
 
 CHAPTER XXV. 
 
 COSTS AT LAW AND IN EQUITY. 
 
 326. Definition of Costs and Distinction between Costs at Law and 
 
 in Equity 477 
 
 327. Who are given Costs 477 
 
 328. Classification of Costs 481 
 
 329. Costs as between Party and Party 481 
 
 330. Attorney's Fees 481 
 
 331. Clerk's Fees 484 
 
 332. Marshal's Fees 489 
 
 333. Witnesses' Fees 491 
 
 334. Miscellaneous Disbursements 494 
 
 335. Costs out of the Fund 496 
 
 336. Costs as between Solicitor and Client 497 
 
 337. Taxation of Costs 498 
 
 338. Security for Costs 498 
 
 b
 
 XVm TABLE OF CONTENTS. 
 
 CHAPTER XXVI. 
 
 ENFORCEMENT OF DECREES AND ORDERS. 
 
 Page 
 
 § 339. Enforcement of Decrees and Orders, in General 500 
 
 340. Executions 500 
 
 341. Contempts 502 
 
 342. Notice of Application for Attachment 504 
 
 343. Hearings upon Applications for Attachments 505 
 
 344. Order of Commitment 506 
 
 345. Writ of Attachment 507 
 
 34G. Execution of Writ of Attachment 507 
 
 347. Sequestration 509 
 
 348. Writ of Assistance 510 
 
 349. Action by Court itself 511 
 
 CHAPTER XXVII. 
 
 CORRECTION OF DECREES OTHERWISE THAN BY APPEAL. 
 
 350. Correction of Decrees in General 513 
 
 351. Amendment upon Petition without a Rehearing 513 
 
 352. Petitions for a Rehearing 514 
 
 353. Supplemental Bills in the nature of Bills of Review .... 517 
 
 354. Bills of Review 518 
 
 355. Provisions peculiar to Bills of Review for Matters of Fact newly 
 
 discovered 520 
 
 356. Provisions common to all Bills of Review 521 
 
 357. Bills in the nature of Bills of Review 525 
 
 358. Bills to impeach Decrees on Account of Fraud 526 
 
 359. Bills to Suspend or Avoid the Operation of Decrees .... 527 
 
 CHAPTER XXVIII. 
 
 PRACTICE AT COMMON LAW. 
 
 360. Common-Law Practice in General 529 
 
 361. Writs and Process in General 531 
 
 362. Writs of Prohibition 532 
 
 363. Writs of Mandamus 533 
 
 364. Practice on Application for Mandamus ........ 537 
 
 365. Writs of Certiorari 540 
 
 366. Writs of Habeas Corpus in General 541 
 
 367. Practice on Application for Writs of Habeas Corpus . . '. . 545 
 
 368. Appeals in Habeas Corpus Proceedings 548
 
 TABLE OF CONTENTS. XIX 
 
 Page 
 
 369. Attachment of Property 549 
 
 370. Arrests 550 
 
 371. Consolidation at Law and in Equity 550 
 
 372. Evidence, Testimony, and Depositions 551 
 
 373. Abatement and Revivor at Common Law 553 
 
 374. Trials 554: 
 
 375. Rules of Decision at Common Law 556 
 
 376. New Trials 559 
 
 377. Bills of Exceptions 559 
 
 378. Judgments 560 
 
 379. Correction of Judgments by Courts that rendered them . . . 561 
 
 380. Executions and Proceedings Supplementary thereto .... 562 
 
 381. Condemnation Proceedings 565 
 
 CHAPTER XXIX. 
 
 REMOVAL OF CAUSES. 
 
 382. Removal of Causes from one Federal Court to another . . . 566 
 
 383. Causes which may be removed from a State Court to a Circuit 
 
 Court of the United States 567 
 
 384. Separable Controversies 570 
 
 385. Practice on Removal in General 572 
 
 386. Practice on Removal for Prejudice or Local Influence .... 575 
 
 387. Practice on Removals of Suits containing Controversies between 
 
 Citizens of the same State claiming Land under Grants of 
 
 different States 580 
 
 388. Practice on Removal of Suits against Revenue Officers, and 
 
 Officers of either House of Congress 580 
 
 389. Practice on Removal of Cases arising under Civil Rights Laws 582 
 
 390. Filing of Record 583 
 
 391. Practice after Removal 585 
 
 392. Effect of Removal 588 
 
 393. Remand 589 
 
 CHAPTER XXX. 
 
 WRITS OF ERROR AND APPEALS. 
 
 394. Writs of Error and Appeals to the Supreme Court of the United 
 
 States 591 
 
 395. Value of Matter in Dispute 594 
 
 396. Certificate of Division of Opinion 597 
 
 397. Right to Appeal or bring Error 598 
 
 398. Time within which Appeal or Writ of Error must be taken . . 601 
 
 399. Writ of Error 602
 
 XX 
 
 TABLE OF CONTENTS. 
 
 § 400. Security on Writ of Error or Appeal 604 
 
 401. Appeals 605 
 
 402. Supersedeas 600 
 
 403. Return to Writ of Error or Appeal 607 
 
 404. Review of Judgments aud Decrees of District Courts by Circuit 
 
 Courts 610 
 
 405. Writs of Error from Supreme Court to State Courts . . . . 612 
 
 406. Motions to Dismiss Appeals or Writs of Error 61 G 
 
 407. Printing the Record 617 
 
 408. Argument of Appeals and Writs of Error in Supreme Court . . 619 
 
 409. Decision of Appeals and Writs of Error by Supreme Court . . 623 
 
 APPENDIX. 
 
 FORMS. 
 
 Form I. Bill in Equity 625 
 
 II. Praecipe for Subpoena ad Respondendum 630 
 
 III. Subpoena 630 
 
 IV. Praecipe for Appearance • 631 
 
 V. Demurrer 631 
 
 VI. Plea 632 
 
 VII. Answer 633 
 
 VIII. Disclaimer 636 
 
 IX. Replication 636 
 
 X. Bill of Revivor 637 
 
 XI. Notice of taking Testimony 640 
 
 XII. Master's Warrant or Summons 641 
 
 XIII. Notice accompanying Draft of Master's Report 642 
 
 XIV. Writ of Ne Exeat 642 
 
 XV. Writ of Habeas Corpus 643 
 
 XVI. Petition for Removal from a State Court to a Circuit Court of 
 
 the United States 644 
 
 XVII. Bond on Removal 645 
 
 XVIII. Final Record in Equity 646 
 
 XIX. Appeal and Allowance 647 
 
 XX. Citation on Appeal 648 
 
 XXI. Supersedeas Bond 648 
 
 XXII. Writ of Error to Federal Court 649 
 
 XXIII. Writ of Error to State Court 650 
 
 XXIV. Assignment of Errors 651 
 
 XXV. Praecipe for Appearance in Supreme Court 652
 
 TABLE OF CONTENTS. XXI 
 
 II. 
 
 RECENT IMPORTANT STATUTES. 
 
 Page 
 
 Judiciary Act of 1875 as amended in 1887 and 1888 653 
 
 Act to provide for Writs of Error or Appeal to the Supreme Court in 
 
 Cases involving a Question of Jurisdiction 658 
 
 Act to provide for bringing Suits against the Governmeut of the United 
 
 States 658 
 
 III. 
 
 Rules of Practice in Equity 664 
 
 IV. 
 Supreme Court Rules 687 
 
 INDEX 705
 
 TABLE OF CASES. 
 
 [references are to pages.] 
 
 A. 
 
 Abbot v. Amer. Hard Rubber Co., 
 
 4 Blatchf. 489 97 
 
 Abbotsford, The, 98 U. S. 440 591 
 
 Abbott v. Curtis & Co. Manuf. Co., 
 
 25 Fed. R. 402 556 
 
 Abergavenny (Earl of) v. Powell, 1 
 
 Meriv. 434 416 
 
 Abernethy v. Hutchinson, 3 L.J. Ch. 
 
 209 297 
 
 Ableman v. Booth, 21 How. 506 544, 545 
 Abraham v. North German F. I. Co., 
 
 28, 156 
 Hall, 106 
 
 610, 616 
 
 3 
 
 497 
 
 215 
 
 24 
 
 217 
 
 37 Fed. R. 731 
 Acklev School District v 
 
 U. S. 428 
 Adair v. Brimmer, 74 N. Y. 539 
 
 v. Shaw, 1 Sch. & Lef. 243 
 
 Adams v. Adams, 21 Wall. 185 
 (.•. Board of Comm'rs, McCalion 
 
 (Kan.), 235 
 v. Bridgewater Iron Co., 6 Fed. 
 
 R. 179 
 
 v. , 26 Fed. R. 324 14, 15 
 
 v. Crittenden, 17 Fed. R, 42 326, 340 
 
 v. , 106 U. S. 576 596 
 
 v. Howard, 21 Off. Gaz. 264; 9 
 
 Fed. R. 347 173, 436 
 v. Kehlor Milling Co., 36 Fed. 
 
 R. 212 
 
 v. St. Leger, 1 Rail & B. 182 
 
 v. Spangler, 17 Fed. R. 133 
 
 v. Woods, 8 Cal. 306 
 
 Adams County v. Burlington & Mo. 
 
 R. R. Co., 112 U. S. 123 
 Adams Express Co. v. Denver & R. 
 
 G. R. R. Co., 16 Fed. R. 712 25, 272 
 Adamson v. Hall, 1 Turn. & R. 258 439 
 Adderley v. Dixon, 1 Sim. & S. 607 300, 
 
 319 
 Addison v. Lewis, 75 Va. 701 350, 351 
 Agar v. Fairfax, 17 Ves. 533 471 
 v. Regents' Canal Co., 1 Swanst. 
 
 250 309 
 
 Agawam Co. v. Jordan, 7 Wall. 583 
 
 213, 214, 215, 216 
 Ager v. Murray, 105 U. S. 126 14 
 Ainslie v. Sims, 17 Beav. 174 434 
 Akers v. Akers, 117 U. S. 197 573 
 Alabama v. Oeorgia, 23 How. 505 77 
 v. Wolff e, 18 Fed. R. 836 26 
 
 136 
 
 86 
 
 559 
 
 384 
 
 615 
 
 Alabama G. L. I. Co. v. Nichols, 109 
 
 U. S. 232 595 
 
 Alabama & C. R. R. Co. v. Jones, 5 
 N. B. R. 97 343 
 
 v. , 7 N. B. R. 145 386, 387 
 
 Alaska, The, 130 U. S. 201 6iU 
 
 Albany v. Steam Trap Co., 26 Fed. 
 
 R. 318 514 
 
 Albrech v. Sussman, 2 Ves. & B. 
 
 323 191 
 
 Albright v. Teas, 106 U. S. 613 25 
 
 Aldrich v. Aetna Co., 8 Wall. 491 614 
 
 v. Cooper, 8 Ves. 394 4 
 
 Aldridge v. Mesner, 6 Ves. 418 145 
 
 Alexanders. Esten, 1 Caines (N. Y.), 
 
 152 284 
 
 Alkan v. Bean, 23 Int. Rev. Rec. 
 
 351 322 
 
 Allan v. Houlden, 6 Beav. 148 85 
 
 Allen, Matter of, 13 Blatchf. 271 507 
 
 v. Allen, Hempst. 58 254 
 
 v. Blunt, 1 Blatchf. 480 151, 474 
 
 v. , 3 Story, 742 451, 453 
 
 v. , 2 Woodb. & M. 121 425, 426 
 
 v. Coffman, 1 Bibb (Ky.), 469 137 
 
 v. Dallas & W. R. R. Co., 3 
 
 Woods, 316 343, 345, 363, 378, 387 
 
 v. Fairbanks, 40 Fed. R. 188 553,554 
 
 v. Galloway, 30 Fed. R. 466 3 
 
 r. Mayor, &c. of N. Y., 18 
 
 Blatchf. 239 ; 7 Fed. R. 483 224, 261, 
 270,436,444 
 
 i'. O'Donald, 23 Fed. R. 573 115 
 
 v. , 28 Fed. R. 17 218 
 
 v. Ryerson, 2 Dill. 501 573 
 
 v. Wilson, 21 Fed. R. 881 165 
 
 Alley v. Nott, 111 IT. S. 472 579 
 
 Allfrey v. Allfrey, 1 Macn. & G. 87 516 
 Allin, In re, 8 Fed. R. 753 384 
 
 Allis v. Stowell, 5 Fed. R. 203 232 
 
 v. , 16 Fed. R. 783 305 
 
 Alsop (--.Commercial Ins. Co., 1 Sum- 
 ner, 451 431 
 Ambler v. Choteau, 107 U. S. 586 17, 172 
 American Bell Tel. Co. v. Southern 
 
 Tel. Co., 34 Fed. R. 803 129, 130 
 
 American Bible Soc. v. Price, 110 
 
 U. S. 61 99 
 
 American C. B. Co. v. Ligowski C. P. 
 
 Co., 31 Fed. R. 466 250 
 
 American D. D. Co. v. Sullivan Ma- 
 chine Co., 32 Fed. R. 552 494, 495
 
 XXIV 
 
 TABLE OF CASES. 
 [References are to pages.] 
 
 American D. R. B. Co. v. Rutland 
 
 Marble Co., 2 Fed. R. 355 313 
 
 v. , 2 Fed. R. 356 15, 838 
 
 v. Sheldon, 17 Blatchf. 208; 4 
 
 Bann. & A. 551 190 
 
 v. , 1 Fed. R. 870 15 
 
 >:. , 28 Fed. R. 217 477, 481, 483 
 
 American M. P. Co. v. Vail, 15 
 
 Blatchf. 313 312 
 
 American N. P. Co. v. City of Eliza- 
 beth, 4 Fisher Pat. Cas. 189 312 
 American Saddle Co. v. Hogg, 1 
 
 Holmes, 133; 6 Fisher Pat. Cas. 
 
 67 214 
 
 American Union Tel. Co. v. Union 
 
 Pac. Ry. Co., 1 McCra. 188 333 
 
 American Zylonite Co. v. Celluloid 
 
 Manuf. Co., 32 Fed. R. 800 434 
 
 Ames v. Birkenhead Docks, 20 Beav. 
 
 332 380 
 v. Chicago, S. F. & C. Ry. Co., 
 
 39 Fed. R. 881 571 
 v. Colorado Cent. R. R. Co., 
 
 Dill. 251 
 
 v. Hager, 36 Fed. R. 120 
 
 v. Kansas, 111 U. S. 440 
 
 Amory v. Amory, 95 U. S. 186 
 
 v. Broderick, Jacob, 530 
 
 v. Lawrence, 3 Cliff 523 
 
 Amsinck v. Barklav, 8 Ves. 594 
 Amy w. Dubuque, 98 U. S. 470 
 v. Manning, 38 Fed. R. 536 
 
 567 
 22 
 5,64 
 573 
 440 
 171 
 394 
 
 io 
 
 577, 
 578 
 578 
 
 131. 17 
 
 v. , 38 Fed. R. 868 
 
 v. Shelby County, 1 Flipp. 104 
 
 485, 486 
 
 v. Watertown, 130 U. S. 301 
 
 530, 532, 561 
 Anderson v. Appleton, 32 Fed. R. 
 
 571, 584, 590 
 v. Jacksonville, P. & M R. R. 
 
 Co., 2 Woods, 628 290 
 
 v. Lewis, 3 Bro. C. C. 429 156 
 
 v. Moe, 1 Abb. (U. S.) 290 492 
 
 v. Santa Anna, 116 U. S. 356 558 
 
 Andes v. Slauson, 130 U. S. 435 555 
 
 Andrae v. Redfield, 12 Blatchf. 407 564 
 Andrews v. Cole, 20 Fed. R. 410 167, 4S2 
 
 v. Smith, 5 Fed. R. 833 12 
 
 v. Spear, 4 Dill. 470 551 
 
 Angel v. Smith, 9 Ves. 335 328, 371, 510 
 Angell v. Angel!, 1 Sim. & S. 83 414 
 
 v. Davis, 4 Mvl. & C. 360 498 
 
 v. Draper, 1 Vern. 399 4 
 
 v. Hadden, 16 Ves. 202 145 
 
 v. Westcombe, 6 Sim. 30 417 
 
 Angurstein v. Clarke, 1 Ves. Jr. 250 151, 
 8 241 
 
 Angier v. May, 3 W. R. 330 336 
 
 Anonymous, Ambl. 237; 2 Ves. Sen. 
 
 407 415 
 
 1 Ask. 18 469 
 
 lAtk. 521 390 
 
 1 Atk. 578 344, 376 
 
 2 Atk. 14 478 
 
 Anonvmous, 2 Atk. 113 
 
 3 Atk. 530 
 
 3 Atk. 809 
 
 1 Barb. Ch. (X. Y.) 
 
 5 Blatchf 134 
 
 1 Chan. Cas. 269 
 
 2 Chan. Cas. 164 
 
 2Eq. Cas. Abr. 166 
 
 4 Hill (X. Y.), 507 
 
 2 Jac. & W. 553 
 
 1 Johns. (X. Y.) 143 
 
 2 Madd. 395 
 
 6 Madd. 10 
 
 12 Mod. 522 
 
 2 P. Wms. 68 
 
 2 P. Wms. 283 
 
 1 Vern. 104 
 
 1 Vern. 117 
 
 1 Vern. 351 
 
 1 Ves. Jr. 93 
 
 1 Ves. Jr. 409 
 
 5 Ves. 656 
 
 9 Ves. 512 
 
 2 Ves. Sen. 520 
 
 73 
 
 327 
 186 
 199 
 412 
 491 
 91, 121 
 175 
 103 
 407 
 223 
 283 
 440 
 306 
 85 
 451 
 
 520, 522 
 
 439 
 
 82 
 
 146, 255 
 306 
 65, 289 
 284 
 107 
 328 
 
 v. Bridgewater Canal Co., 9 
 
 Sim. 378 327 
 
 v. Christopher, 11 Sim. 409 400 
 
 r. Gwillim, 6 Ves. 285 223 
 
 v. Harrison, 4 Matld. 252 218 
 
 v. Jolland, 8 Ves. 72 380 
 
 v. Lake, 6 Ves. 171 223 
 
 Anthonv r. Carroll, 2 Ban. & A. Pat. 
 
 Cas. 195 10 
 v. Louisville & N. R. R. Co. 132 
 
 U. S. 172 560 
 
 Antoni v. Greenhow, 107 U. S. 769 323 
 Apthorp v. Comstock, 2 Paige (N. Y.), 
 
 482 448, 450 
 
 Archbishop of York v. Stapleton, 2 
 
 Atk. 136 241 
 
 Archer v. Hartford F. I. Co., 31 Fed. 
 
 R. 060 483 
 
 v. Preston, 1 Eq. Cas. Abr. 133 2 
 
 Areot (Xabob of) v. East India Co., 
 
 3 Bro. C. C. 292 202 
 
 Arglasse v. Musehamp, 1 Vern. 75 2, 468 
 
 v. , 1 Vern. 135 2 
 
 Argo, The, 2 Gall. 314 425 
 
 Armstrong v. Armstrong, L. R. 12 
 
 Eq. 614 360 
 
 v. Brown, 1 Wash. 43 429 
 
 v. Chemical Xat. Bank, 37 Fed. 
 
 R. 466 217 
 
 v. Ettlesohn, 36 Fed. R. 209 21, 22, 
 
 24, 25 
 99, 212 
 434 
 
 v. Lear, 8 Pet. 52 
 
 r. Storer, 9 Beav. 277 
 
 v. Trautmann, 36 Fed. R. 275 21, 
 
 22,25 
 v. Treasurer of Athens Co., 16 
 
 Pet. 281 615 
 
 Arnold v. Chesebrough, 35 Fed. R. 
 
 16 423 
 
 v. Kearney. 29 Fed. R. 820 589 
 
 v. Kempstead, 1 Amb. 466 4
 
 TABLE OF CASES. 
 [References are to pages.] 
 
 XXV 
 
 Arnoux v. Steinbrennor, 1 Paige ' 
 
 (N. Y.), 82 369, 434 
 
 Arrowsmith v. Gleason, 129 U. S. 86 29 
 Arundell (Lady) v. Phipps, 10 Ves. 
 
 139 306 
 
 Asbee v. Shipley, Madd. & Geld. 296 277 
 Ashburnham v. Thompson, 13 Ves. 
 
 402 478 
 
 Askew v. Poulterers' Co., 2 Ves. Sen. 
 89 340 
 
 v. Townsend, 2 Dick. 471 258 
 
 Aston v. Heron, 2 M. & K. 390 376 
 
 Atchison v. Morris, 11 Fed. R. 582 161 
 Atherton v. Fowler, 91 U. S. 143 602, 
 
 614, 615 
 Atkins v. Dick, 14 Pet. 114 97 
 
 v. Petersburg R. R. Co., 3 Hughes, 
 
 307 350 
 
 v. Wabash, St L., & P. R. R. Co., 
 
 29 Fed. R. 161 12, 347, 379, 380, 
 
 381, 385, 386, 387 
 Atkinson v. Glenn, 4 Cranch C. C. 
 134 425, 430 
 
 v. Hanway, 1 Cox Eq. 360 241 
 
 Atlantic, The, Abb. Adm. 451 401 
 
 Atlantic G. P. Co. v. Dittman P. M. 
 
 Co., 9 Fed. R. 316 504 
 
 Atlantic Works v. Brady, 107 U. S. 
 
 192 214 
 
 Atlantic & P. Tel. Co. v. Union Pac. 
 Ry. Co., 1 Fed. R. 745 ; 1 McCra. 
 541 °33 
 
 Atterbury v. Gill, 13 Off. Gaz. 276 256, 
 
 206 
 Attleborough Nat. Bank v. North- 
 western M. & C. Co., 28 Fed. R. 113 11 
 Attorney-General v. Bank of Colum- 
 bia, 1 Paige (N. Y.), 511 379, 380 
 
 v. Birmingham & O. J. Ry. Co., 
 
 15 Jur. 1024 299 
 
 v. Brewers' Co., 1 P. Wins. 376 478 
 
 v. Brooke, 18 Ves. 319 515 
 
 v. Brown, 1 Swanst. 265 182 
 
 v. Burch, 4 Madd. 178 418 
 
 v. Butler, 123 Mass. 306 109 
 
 v. City of London, 1 Ves. Jr. 243 ; 
 
 3 Bro. C. C. 171 496 
 
 v. Clapham, 4 De G. M. & G. 
 
 591 475 
 
 v. Cleaver, 18 Ves. 211 304 
 
 v. Corporation of London, 12 
 
 Beav. 8 177 
 v. Corporation of Poole, 4 M. & 
 
 C. 17 122 
 
 v. Day, 2 Madd. 246 380 
 
 v. Foster, 2 Hare, 81 273, 277 
 
 /•. Gee, 2 Ves. & B. 208 380 
 
 w. Goddard, 1 Turn. & R. 348 103 
 
 v. Great Northern Ry. Co., 1 Dr. 
 
 & Sin. 151 298, 299 
 
 v. Greenhill, 34 Beav. 174 51 1 
 
 >■. Guardian Mat. L. I. Co., 77 
 
 N. Y. 272 370 
 
 v. Hamilton, 1 Madd. 214 471 
 
 v. Hewit, Cooper's Eq. PI. 319 216 
 
 Attorney-General v. Jackson, 11 Ves. 
 
 365 ' 92, 181, 196 
 
 v. Jeanes, 1 Atk. 355 137 
 
 v. Johnson, 2 J. Wils. 87 :s\* 
 
 v. Lambirth, 5 Price, 386 219 
 
 v. Manchester & L. Ry. Co., 1 
 
 Ry. Cas. (Eng.) 436 339 
 
 v. Marsh, 16 Sim. 572 338 
 
 v. Mayor of Gal way. 1 Moll. 95 377 
 
 v. Montgomery, 2 Atk. 378 452 
 
 v. Newcombe, 14 Ves. 1 239 
 
 v. Nichol, 16 Ves. 338 307 
 
 v. North American L. I. Co., 89 
 
 X. Y. 94 373, 384 
 
 v. Parkhurst, 1 Chan. Cas. 112 67 
 
 v. Pearson, 7 Sim. 290 102, 397 
 
 v. Railroad Cos., 35 Wis. 425 298 
 
 v. Richards, 2 Anstr. 603 308 
 
 v. Rumford Chetn. Works, 2 
 
 Ban. & A. Pat. Cas. 298 12 
 
 v. Shelly, 1 Salk. 162 92 
 
 v. Tiler, 1 Dick. 378 67 
 
 v. Utica Ins. Co., 2 Johns. Ch. 
 
 (X. Y.) 371 298 
 
 v. Vigor, 11 Ves. 563 359 
 
 v. Whorwood, 1 Ves. Sen. 534 136 
 
 v. Worcester Corporation, 1 C. 
 
 P. Cooper, 18 221 
 
 v. Wright, 3 Beav. 447 284 
 
 v. Wyburgh, 1 P. Wms. 599; 2 
 
 Eq. Cas. Abr. 167 92 
 
 v. Wynne, Moseley, 126 85 
 
 Atwill v. Ferrett, 2 Blatchf. 39 133, 136, 
 
 140, 173, 174, 176, 177, 178, 179, 180, 
 
 186, 218, 219, 242 
 
 Atwood v. Hawkins, Rep. t. Finch 113 85 
 
 Austin v. Austin, 11 Jur. X. S. 536 475 
 
 v. Chambers, 6 CI. & Fin. 38 117 
 
 v. Gagan, 39 Fed. R. 626 573, 588 
 
 Austria (Emperor of) v. Dav, 2 Giff. 
 
 628 ; 3 De G. F. & J. 217 " 321, 478 
 
 Ayers, In re, 123 U. S. 443 72, 77, 99, 
 
 323,542, 544 
 
 v. Watson, 113 U. S. 594 571, 587 
 
 Ayliffe v. Murray, 2 Atk. 58 408 
 
 Avium v. Bray, 2 Y. & J. 518, n. 187 
 
 Ayres v. Carver, 17 How. 591 90, 91, 92, 
 
 216. 248,250,253 
 
 t\ Wiswall, 112 U. S. 187 84, 668, 
 
 570, 571 
 
 B. 
 
 Bacon v. Bronson, 7 Johns. Ch. (N. Y.) 
 
 194 3 
 
 v. Hart, 1 Black, 38 604 
 
 v. Jones, 4 M. & Cr. 433 327, 310 
 
 v. Magee, 7 Cow. (N. Y.) 515 406 
 
 v. Xorthwestern Mut. L. I. Co., 
 
 131 IT. S. 258 658 
 
 v. Pi ves, 106 U. S. 99 96 
 
 v. Robertson, 18 I low. 480 89 
 
 v. Spottiswoode, 1 Beav. 3S2 340
 
 XXVI 
 
 TABLE OF CASES. 
 [References are to pages.] 
 
 Badeau v. Rogers, 2 Paige (N. Y.), 
 
 209 143, 145, 
 
 Badger v. Badger, 2 Wall. 87 133, 
 
 v. , 1 Cliff. 241 
 
 Bagley v. Yates, 3 McL. 465 502, 
 Bagshaw v. Eastern Union Ry. Co., 
 
 2 Macn. & G. 389 
 Bailey v. Birkenliead, L. & C. J. Ry. 
 
 Co., 12 Beav. 433 
 
 v. Sewell, 1 Kuss. 239 
 
 v. Wright, 2 Bond, 181 198, 
 
 Bailey W. M. Co. v. Young, 12 
 
 Blatchf. 199 183, 222, 224, 
 
 Baily v. Lambert, 5 Hare, 178 
 
 i'. Taylor, 1 Russ. & M. 73 
 
 Bain, Ex parte, 121 U. S. 1 
 Bainbridge v. Burton, 2 Beav. 539 
 Bainbrigge v. Blair, 3 Beav. 421 
 Baines v. Baker, Anibl. 158 
 Baird v. Shore Line Ry. Co., 6 
 
 Blatchf. 461 
 Baker v. Backus, 32 111. 79 379, 
 
 v. Biddle, Baldw. 394 14, 
 
 v. llaily, 2 Dick. 632 
 
 v. Hart, 3 Atk. 542 
 
 v. Mellish, 11 Ves. 70 173, 182, 
 
 480 
 175 
 199 
 5U4 
 
 299 
 
 171 
 
 448 
 203 
 
 244 
 
 435 
 340 
 
 543 
 
 89 
 
 387 
 
 308 
 
 338 
 380 
 445 
 392 
 453 
 186, 
 242 
 3 
 91 
 
 160 
 516 
 
 448 
 478 
 274 
 290 
 
 v. Morton, 12 Wall. 150 
 
 v. Rogers, Sel. Cas. Ch. 74 
 
 v. Wales, 14 Abb. Pr. n. s. 
 
 (N. Y.) 331 
 
 v. Whiting, 1 Story, 218 
 
 Balch v. Tucker, 2 Ch. Cas. 40 
 Baldwin v. Ely, 9 How 580 
 
 v. Mackown, 3 Atk. 817 272, 
 
 Ballard v. Catling, 2 Keen, 606 
 Baltimore Car Wheel Co. v. Bemis, 
 
 29 Fed. R. 95 17, 324 
 
 Baltimore & O. R. R. Co., Ex parte, 
 
 108 U. S. 566 534 
 
 v. Ford, 35 Fed. R. 170 590 
 
 v. Hamilton, 16 Fed. R. 181 530 
 
 Bampton v. Birchall, 5 Beav. 330 268 
 
 v. , 1 Phill. 568 268 
 
 Bancroft v. Warden, 2 Dick. 672 241 
 
 v. Wentworth, 10 Ves. 285, n. 226 
 
 Bank v. Carrollton R.R., 11 Wall. 624 
 
 99, 175 
 
 v. McLeod, 38 Ohio St. 174 370 
 
 Bank of Alexandria v. Young, 1 
 
 Cranch C. C. 458 551 
 
 Bank of Columbia v. Sweeny, 1 Pet. 
 
 567 535 
 
 Bank of Danville v. Travers, 4 Biss. 
 
 507 427 
 
 Bank of Kentucky v. Adams Exp. Co., 
 
 93 U. S. 714 557 
 
 Bank of Montreal v. Thayer, 7 Fed. R. 
 
 622 367, 376 
 
 Bank of N. Y. v. Skelton, 2 Blatchf. 
 
 14 303 
 
 Bank of S. C. v. Rose, 1 Rich. Eq. 
 
 (S. C). 292 434 
 Bank of U. S. v. Beverlv, 1 How. 134 4 
 v. Daniel, 12 Pet. 32 595 
 
 536 
 379 
 
 377 
 340 
 
 407 
 526 
 
 584 
 429 
 
 Bank of U. S. v. Green, 6 Pet. 26 597 
 
 v. Kurtz, 2 Cranch C. C. 342 553 
 
 v. Ritchie, 8 Pet. 128 78, 525 
 
 v. White, 8 Pet. 262 165, 523 
 
 Banks v. Miller, 1 Cranch C. C. 543 424 
 Banque Franco-Egyptienne v. Brown, 
 
 24 Fed. R. 106 " 247 
 
 Barber v. Barber, 21 How. 582 14 
 
 Barclay v. Brown, 7 Paige (N. Y.), 245 474 
 Barker v. Dixie, Rep. t. Hardw. 252 396 
 
 v. Dumaresque, 2 Atk. 119 439 
 
 v. Ray, 2 Russ. 63 452 
 
 v. Smark, 3 Beav. 64 439 
 
 v. Todd, 15 Fed. R. 265 288, 291 
 
 Barkley v. Levee Comm'rs, 93 U. S. 
 
 258 
 Barlow v. Gains, 8 Beav. 329 
 Barnard v. Darling, 1 Barb. Ch. (N.Y.) 
 
 76 
 
 v. Gibson, 7 How. 650 
 
 v. Heydrick, 49 Barb. (N Y.) 62; 
 
 2 Abb. Pr. n. s. (N. Y.),47 
 Barnesle v. Powell, 1 Ves. Sen. 120 
 Barnesville & M. R.R. Co., Matter of, 
 
 2 McCra. 216 
 Barnet v. Dav, 3 Wash. 423 
 Barney v. Baltimore City, 6 Wall. 280 
 
 100, 104 
 
 v. Globe Bank, 5 Blatchf. 107 33 
 
 v. Latham, 103 U. S. 205 26, 104, 
 
 126, 127, 568, 572 
 v. Luckett, 1 Sim. & S. 420 326 
 
 v. Mayor, &c, of Baltimore, 1 
 
 Hughes, 118 
 
 v. Schmeider, 9 Wall. 248 
 
 Barns v. Omally, 4 McL. 576 
 Barrel v. Transportation Co., 3 Wall, 
 
 424 
 Barrell v. Simonton, 3 Cranch C. C 
 
 681 
 Barron v. Burnside, 121 U. S. 186 
 Barrow r. Hill, 13 How. 54 
 
 v. Hunton, 99 U. S. 80 11, 28, 524, 527 
 
 Barry, Ex parte, 2 How. 65 541, 544 
 
 v. Edmunds, 116 U. S. 550 23, 24, 
 
 437, 438 
 v. Mercein, 5 How. 103 544, 595 
 
 v. Mutual L. I. Co., 53 N. Y. 
 
 536 143 
 
 Bartle v. Coleman, 3 Cranch, 283 99 
 
 Bartlett v. Sultan of Turkey, 19 Fed. 
 
 R. 340 156 
 
 v. Wood, 9 W. R. 817 474 
 
 Barton v. Barbour, 104 U. S. 126 68, 192, 
 356, 357, 358, 366, 375, 376 
 Bas v. Steele, 3 Wash. 381 553 
 
 Basey v. Gallagher, 20 Wall. 670 451 
 
 Bassett v. Johnson, 1 Green Ch. (N. 
 
 J.), 154 451 
 
 Bate Refrigerating Co. v. Gillett, 30 
 
 Fed. R. 683 504 
 
 v. Gillette, 28 Fed. R, 673 457, 458, 
 
 461 
 Bates v. Clark, 95 U. S. 204 73 
 v. Coe, 98 U. S. 31 213, 214 
 
 26 
 
 398 
 478 
 
 605 
 
 425 
 
 570 
 624
 
 TABLE OF CASES. 
 [References are to pages.] 
 
 XXV11 
 
 Batesville Inst. v. Kauff man, 18 Wall. 
 
 151 84, 97 
 
 Bath (Earl of) v. Sherwin, 4 Bro. P. C. 
 
 373 4, 301 
 
 Bath County v. Amy, 13 Wall. 244 536 
 Battaile v. Fisher, 36 Miss. 321 373 
 
 Battle v. Mutual L. I. Co., 10 Blatchf. 
 
 417 238 
 
 Bawtree v. Watson, 3 M. & K. 339 102 
 Bax v. Whitbread, 16 Ves. 15 474 
 
 Bayerque v. Cohen, McAll. 113 184, 327 
 Bayley v. De Walkiers, 10 Ves. 441 223 
 Bayliss v. Lafayette, M. & B. Ry. Co., 
 
 8 Biss. 193 291 
 
 Beadleston v. Harpending, 32 Fed. It. 
 
 644 590 
 
 Beale v. Thompson, 8 Cranch, 70 426 
 
 Bean v. Clark, 30 Fed. It. 225 210 
 
 v. Smith, 2 Mason, 252 33 
 
 Bearblock v. Tyler, 1 Jac. & W. 225 450 
 Beard v. Bowler, 2 Bond, 13 206 
 
 Beardsley v. Littell, 14 Blatchf. 102 395, 
 
 552 
 Beauchamp v. Marquis of Huntley, 
 
 Jacob, 516 194 
 
 Beaufort (Uuke of) v. Morris, 2 Phill. 
 683 450 
 
 v. Neeld, 12 CI. & Fin. 248 ^ 3 
 
 Beaumont v. Boultbee, 5 Ves. 485 137 
 Beavan v. Carpenter, 11 Sim. 22 415 
 
 Bechtel v. United States, 101 U. S. 
 
 597 399 
 
 Beckwith v. Easton, 4 Ben. 357 492 
 
 Beddoes v. Pugh, 26 Beav. 407 247 
 
 Bedford (Duke of) v. British Museum, 
 
 2 M. & K. 552 301 
 
 Beebe v. Russell, 19 How. 283 467 
 
 Beebees, Ex parte, 2 Wall. Jr. 127 412 
 Beecher v. Bininger, 7 Blatchf. 170 346 
 Beede v. Cheeney, 5 Fed. R. 388 588 
 
 Beedle v. Bennett, 122 U. S. 71 15 
 
 Beekman v. Peck, 3 Johns, Ch. (N. Y.) 
 
 415 514 
 
 Beer Co. v. Massachusetts, 97 U. S. 
 
 25 615 
 
 Beers v. Chelsea Bank, 4 Edw. (N. Y.) 
 277 386 
 
 r. Wabash, St. L. & P. Ry. Co. 
 
 34 Fed. It. 244 373 
 
 Behrens v. Sieveking, 2 M. & Cr. 
 
 602 194 
 
 Bein v. Heath, 6 How. 228 65 
 
 v. , 12 How. 108 8, 9, 339 
 
 Belden v. Devoe, 12 Wend. (N. Y.), 
 
 223 
 Bell v. Chapman, 10 Johns. 183 
 
 v. Cureton, 2 M. & K. 503 
 
 v. Davidson, 3 Wash. 328 
 
 v. Donohoe, 17 Fed. R. 710 
 
 Belloat v. Morse, 2 Hayw. (N. C.) 
 
 157 
 Benner v. Porter, 9 How. 235 
 Bennet v. Going, 1 Moll. 529 
 
 v. Vade, 2 Atk. 325 
 
 Bennett v. Attkins, 1 Y. & C. 247 
 
 v. Bennett, Deady, 299 
 
 v. Butterworth, 11 How. 669 
 
 v. Colley, 2 M. & K. 225; 5 Sim, 
 
 181 
 
 v. Hamill, 2 Sch. & Lef. 566 
 
 471, 526 
 
 v. Hoefner, 17 Blatchf. 311 
 
 v. Honywood, Amb. 708 
 
 v. Neale, Wightwick, 324 
 
 Benson v. Hadfield, 4 Hare, 32 
 
 240 
 
 567 
 497 
 118 
 478 
 544 
 
 343 
 
 169 
 
 90 
 
 212, 448 
 
 126, 192, 
 
 193 
 
 544 
 
 340 
 
 109 
 
 550 
 
 v. McMahon, 127 U. S. 457 
 
 Bentley v. Joslin, Hempst, 218 
 Benton v. Woolsey, 12 Pet. 27 
 Bergen, In re, 2 Hughes, 513 
 Bernards Township v. Stebbins, 109 
 
 U. S. 341 13, 438 
 
 Berney v. Sewell, 1 Jac. & W. 647 343 
 Bernheim v. Birnbaum, 30 Fed. R. 
 
 24, 34 
 456 
 218, 396 
 100, 262, 
 266 
 434 
 438 
 
 885 
 Bernie v. Vandever, 16 Ark. 616 
 Berry v. Sawyer, 19 Fed. R. 286 
 Bettes v. Dana, 2 Sumner, 383 
 
 — v. Morrison, 1 Pet. 351 
 
 — v. Nimmon, 4 McL. 539 
 
 — v. Noonan, 19 Fed. R. 225 
 
 — v. United States Stamping Co., 
 32 Fed. R. 549 
 
 407 
 
 64 
 
 121 
 
 430 
 
 96, 98, 
 
 99, 100 
 
 424, 558 
 
 425 
 
 579 
 
 4G0 
 
 Betts v. Barton, 3 Jur. n. s. 154 
 
 i\ Lewis, 19 How. 72 
 
 Bickett v. Morris, L. R. 1 H. L. Sc. 47 324 
 Bickford v. Skewes, 8 Sim. 206 408 
 
 Bief v. Dyer, Chan. Cal. XI. 3 
 
 Bigelow, Ex parte, 113 U. S. 328 542, 543 
 Bigler v. Waller, 12 Wall. 142 603, 604 
 Bismold v. Audland, 11 Sim. 23 142, 144 
 Billing v. Flight, 1 Madd. 230 202 
 
 Bills v. New Orleans, St. L. & C. R. R. 
 
 Co., 13 Blatchf. 227 
 Bingham v. Cabot, 3 Dall. 382 
 Bininger, Re, 7 Blatchf. 159 
 Birch, Re, Shelf, on Lun. 146 
 
 v. Corbin, 1 Cox Eq. 144 
 
 Birdsall v. Perego, 5 Blatchf. 251 
 Birdsell v. Hagerstown A. I. M. Co., 
 
 1 Hughes, 64 
 Birdseye v. Heilner, 26 Fed. R. 147 
 
 v. Shaeffer, 37 Fed. R. 821 579, 588 
 
 Birdsong v. Birdsong, 2 Head (Tenn.), 
 
 289 
 Birkenhead Docks v. Laird, 4 De G. 
 
 M. & G. 732 
 Bischoff v. Wetherell, 9 Wall. 812 
 Bischoffsheim v. Balfzer, 20 Fed. R. 
 890 
 
 v. Brown, 29 Fed. R. 341 
 
 Bishop v. Willis, 2 Ves. Sen. 113 
 Bishop of Winchester v. Fournier, 2 
 
 Ves. Sen. 445 448, 476 
 
 Black v. Lamb, 1 Beas. (N. J.) 108 447 
 
 v. Thorne, 10 Blatchf. 66 32, 212, 
 
 437, 468 
 Blackburn v. Crawfords, 3 Wall. 175 431 
 
 585 
 113 
 533 
 344 
 143 
 240 
 
 305 
 210 
 
 291 
 
 475 
 
 199 
 
 15 
 
 552 
 
 294
 
 XXV111 
 
 TABLE OF CASES. 
 [References are to pages.] 
 
 Blackburn v. Selma, M. & M. R. 11. 
 
 Co., 2 Flipp. 525 161, 190, 191, 192 
 
 Blain v. Home Ins. Co., 30 Fed. R. 
 
 607 486 
 
 Blair v. St. Louis, H. & K. Ry. Co., 
 
 19 Fed. H. 861 354 
 
 v. , 20 Fed. R. 348 373 
 
 v. , 22 Fed. R. 471 349, 350, 354 
 
 v. , 23 Fed. R. 521 351 
 
 v. , 23 Fed. R. 523 351 
 
 v. , 23 Fed. R. 524 352 
 
 v. , 23 Fed. R. 704 353 
 
 v. Turtle, 5 Fed. R. 394; 23 Alb. 
 
 L. J. 435 160 
 
 Blake u. Blake, 18 W. R. 944 468 
 
 v. Greenwood Cemetery, 14 
 
 Blatchf. 342 324 
 
 v. Hawkins, 19 Fed. R. 204 486, 488 
 
 v. McKim, 103 U. S. 336 26 
 
 Blakely v. Biscoe, Hempst. 114 14 
 
 Blakemore v. Glamorganshire Canal 
 
 Nav., 1 M. & K. 154 298, 300 
 
 Blakeney v. Dufaur, 15 Beav. 40 380, 381 
 Blanchard v, Cawthorne, 4 Sim. 566 356 
 
 v. Dwigbt, 12 Wend. (N. Y.), 
 
 192 573 
 
 v. Putnam. 8 Wall. 420 213 
 
 Blandy v. Griffith, 6 Fisher P. C. 434 521 
 Blease v. Garlington, 92 U. S. 1 395, 423 
 Bleecker v. Bond, 3 Wash. 529 398 
 
 Blight v. Fisher, Pet. C. C. 41 412, 504 
 Bliss v. Brooklyn, 10 Blatchf. 217 499 
 Block v. Atchison, T. & S. F. K. Co., 
 21 Fed. R. 529 154 
 
 v. United States, 7 Ct. of CI. 
 
 406 398 
 
 Blodgett v. Hobart, 18 Vt. 414 251 
 
 Blois v. Betts, 1 Dick. 336 382 
 
 Blomfield v. Eyre, 8 Beav. 250 136, 328 
 Blondheim v. Moore, 11 Md. 365 346, 
 
 378 
 Blossom v. Railroad Co., 3 Wall. 196 
 
 463, 464 
 Blow v. Taylor, 4 Hen. & M. (Va.) 
 
 159 337 
 
 Blower v. Morrets, 3 Atk. 772 258 
 
 Bloxam v. Metropolitan Ry. Co , L. R. 
 
 3 Ch 337 299 
 
 Blunt v. Clitherow, Ves. 799 359 
 
 Board of Commissioners v. Gorman, 
 
 19 Wall. 661 500, 563 
 
 Board of Education v. Scoville, 13 
 
 Kan. 17 143 
 
 Board of Liquidation v. McComb, 92 
 
 U. S. 531 74, 98, 323 
 
 Boddy v. Kent, 1 Meriv. 361 255, 439 
 Bodwell v. Crawford, 26 Kan. 292 321 
 
 v. Willcox, 2 Caines (N. Y.), 104 283 
 
 Boehm v. Wood, Turn. & R. 332 393 
 
 Bogart v. Hinds, 25 Fed. R. 484 171 
 
 Bollman, Ex parte, 4 Cranch, 75 
 
 540, 541, 544, 545 
 Bolton v. Bolton, 2 Dan. Ch. Pr. (2d 
 
 Am. Ed.) 468, n. 242 
 v. 2 Sim. & S. 371 439 
 
 Boone v. Chiles, 10 Pet. 177 
 Booth v. Booth, 2 Atk. 343 
 
 v. Clark, 17 How. 322 
 
 v. Levcester, 1 Keen, 247 
 
 Bootle v. Blundell, 19 Ves. 494 
 
 Bolton v. Corporation of Liverpool, 1 
 
 M. & K. 88 177 
 
 v. Gardner, 3 Paige (N. Y.), 273 201 
 
 Bond v. Dustin, 112 U. S. 604 555, 556 
 Bondurant v. Watson, 103 U. S. 281 673 
 Boogher v. Insurance Co., 103 U. S. 
 
 90 555 
 
 Boom Co. v. Patterson, 98 U. S. 403 565 
 Boon v. Collingwood, 1 Dick. 115 394 
 Boon's Heirs v. Chiles, 8 Pet. 532 84, 95, 
 
 98,99 
 201 
 439 
 68, 370 
 434 
 398, 450, 
 452 
 
 Borland v. Haven, 37 Fed. R. 394 9 
 
 Bors v. Preston, 111 U. S. 252 5, 437 
 
 Bosanquet v. Marsham, 4 Sim. 573 241 
 Bostock v. North Staffordshire Ry. 
 
 Co., 3 Sm. & G. 283 298, 299 
 
 Bostwick v. Brinkerhoff, 106 U. S. 3 614 
 Bottomley v. United States, 1 Story, 
 
 153 498 
 
 Boudereau v. Montgomery, 4 Wash. 
 
 186 428, 429, 431 
 
 Boudinot v. Symmes, Wall. C. C. 139 221 
 Boult v. Blunt, Cary, 72 
 Bourke v. Amison, 32 Fed. R. 710 
 Bourne v. May bin, 3 Woods, 724 
 Boussmaker, Ex parte, 13 Ves. 71 
 Bowen v. Chase, 94 U. S. 812 
 
 v. 7 Blatchf. 255 
 
 Bowie v. Talbot, 1 Cranch C. C. 247 
 Bowman v. Bell, 14 Sim. 392 
 
 v. Bowman, 30 Fed. R. 849 
 
 v. Chicago & N. W. Ry. Co., 115 
 
 U. S- 611 
 
 v. Sheldon, 5 Sandf. (N. Y.) 657 
 
 Bowman's Devisees v. Wathen, 2 
 
 McL. 376 
 Bowyer v. Bright, 13 Price, 316 
 
 v. Pritchard, 11 Price, 103 
 
 Boyce v. Grundv, 3 Pet. 210 
 
 v. 9 Pet. 275 
 
 Boyd, Ex parte, 105 U. S. 647 
 
 v. Gill, 19 Fed. R. 145 
 
 v. Heinzelman, 1 Ves. & B. 381 
 
 v. Mills, 13 Ves. 85 
 
 Boyer v. Bover, 113 U. S. 689 
 Boyle v. Zacharie, 6 Pet. 648 
 Brace v. Taylor, 2 Atk. 253 
 Bracken v. Martin, 3 Yerg. (Tenn.) 
 
 55 
 Bradford v. Felder, 2 McCord Ch. 
 
 (S. C.) 170 
 v. Union Bank of Tenn., 13 How. 
 
 57 
 
 v. Williams, 3 How. 576 
 
 Bradley, Ex parte, 7 Wall. 364 
 
 v. Reed, 2 Pittsb. (Pa.) 519; 12 
 
 Pittsb. L. J. 65 306, 338 
 Bradstreet, Ex parte, 4 Pet. 102 534, 535 
 , Ex parte, 6 Pet. 774 534 
 
 324 
 
 152 
 
 384 
 
 64 
 
 20 
 
 578 
 
 425 
 
 377 
 
 14 
 
 23 
 
 407 
 
 126 
 
 274, 515 
 
 145 
 
 4, 13 
 
 624 
 
 6, 562 
 
 570 
 
 440 
 
 225 
 
 171 
 
 175 
 
 440 
 
 240 
 
 247 
 
 26 
 
 535
 
 TABLE OF CASES. 
 [References are to pages.] 
 
 XXIX 
 
 Bradstreet, Ex parte, 7 Pet. 634 
 
 , Ex parte, 8 Pet. 588 534, 
 
 v. Neptune Ins. Co., 3 Sumner, 
 
 601 
 Bradwell v. Weeks, 1 Johns. Ch. 
 
 (N. Y.) 325 
 Bramston v. Carter, 2 Sim. 458 151, 
 Brande v. Gilchrist, 18 Fed. R. 465 
 Brandies v. Cochrane, 105 U. S. 262 
 Brandon v. Brandon, 5 Madd. 473 
 Brandon Manuf. Co. v. Prime, 14 
 Blatchf. 371: 3 Bann. & A. Pat. 
 Cas. 191 173, 251, 
 
 Brandreth v. Lance, 8 Paige (N. Y.), 
 
 24 
 Brasher's Ex'rs v. Van Cortlandt, 2 
 Johns. Ch. (N. Y.) 242 79, 141, 
 
 Brassey v. New York & N. E. R. R. 
 Co., 19 Fed. R. 663 18, 
 
 Breeden v. Lee, 2 Hughes, 484 17, 
 Brewer v. Jacobs, 22 Fed. R. 217 
 Brewster v. Shuler, 38 Fed. R. 549 
 
 v. Wakefield, 22 How. 118 
 
 Bridges v. Sheldon, 7 Fed. R. 17 
 Briges v. Sperry, 95 U. S. 401 
 Briggs v. French, 2 Sumner, 251 
 
 v. The Light Boats, 11 Allen 
 
 (Mass.), 157 
 Bri^ham v. Luddington, 12 Blatchf. 
 237 68, 101, 158, 
 
 Bright v. Milwaukee & St. P. R. R. 
 
 Co., 14 Blatchf. 214 
 Brigstocke v. Roch, 7 Jur. n. s. 63 
 Brinckerhoff v. Brown, 7 Johns. Ch. 
 
 (N. Y.) 217 
 
 Brine v. Insurance Co., 96 U. S. 627 
 
 9, 443, 473, 
 
 Brinkerhoff v. Brown, 6 Johns. Ch. 
 
 (N. Y.) 139 123, 182, 
 
 Briscoe v. Commonwealth Bank, 9 
 
 Pet. 85 
 Britton v. Brewster, 2 Fed. R. 160 
 
 v. Hill, 12 C. E. Gr. (N. J.) 389 
 
 Brobst v. Brobst, 4 Wall. 2 
 
 Brockett v. Brockett, 2 How. 238 604, 
 
 v. 3 How. 691 
 
 Broderick's Will, Case of, 21 Wall. 
 503 9, 10, 18, 
 
 Brodie v. Barry, 3 Meriv. 695 
 
 v. St. Paul, 1 Ves. Jr. 326 
 
 Bromley v. Smith, 1 Sim. 8 
 
 v. Town of Jeffersonville, 3 McL. 
 
 336 
 Bronson v. Keokuk, 2 Dill. 498 
 
 v. La Crosse & M. R. R. Co., 2 
 
 Wall. 283 252, 
 
 v. Railroad Co., 2 Black, 524 290, 
 
 v. Schulten, 104 U. S. 410 561, 
 
 Brook v. Evans, 29 L. J. Ch. G16 
 Brook (Lord) v. Lord Hertford, 2 P. 
 
 Wms. 548 
 Brooke v. Clarke, 1 Swanst 550 
 Brooks v. Bicknell, 3 McL. 250 
 
 v. Byam, 1 Story, 296 215, 220, 
 
 v. , 2 Story, 553 477, 
 
 535 Brooks v. Clark, 119 U. S. 502 571 
 
 535 v. Farwell, 2 McCra. 220; 4 
 
 Fed. R. 167 160 
 
 199 v. Jenkins, 3 McL. 432 4"J7 
 
 v. Miller, 28 Fed. R. 615 14, 15 
 
 65 v. Mills County, 4 Dill. 524 194 
 
 241 v. Missouri, 124 U. S. 394 614 
 
 246 v. Norris, 11 How. 204 602 
 
 605 v. O'Hara, 8 Fed. R. 529 ; 2 Mc- 
 
 359 Cra. 644 114,118,331,332 
 
 Browder v. McArthur, 7 Wheat. 58 622 
 Brown v. Apsden, 14 How. 25 623 
 
 252 v. Chesapeake & O. Canal Co., 
 
 4 Fed. R. 770 530 
 
 323 v. Clark, 3 Woodeson's Lect. 
 
 378 67 
 
 149 v. County of Buena Vista, 95 
 
 U. S. 157 176, 197 
 
 345 v. Deere, 6 Fed. R. 484 ; 2 Mc- 
 
 309 Cra. 425 340 
 
 556 v . , 6 Fed. R. 487 340, 341 
 
 485 v. Dowthwaite, 1 Madd. 448 85 
 
 96 v. Evans, 18 Fed. R. 56 564 
 
 160 v. Guarantee Trust Co., 128 U. S 
 
 586 403 
 
 27 v . Hall, 6 Blatchf. 405 
 
 v. Higden, 1 Atk. 291 
 
 69 v. Huger, 21 How. 305 
 
 v. Pacific Mail S. S. 
 
 370 Blatchf. 525 
 
 v. Philadelphia, W. & B. R. Co., 
 
 584 9 Fed. R. 183 
 
 415 v. Piatt, 2 Cranch C. C. 253 
 
 v. Pierce. 7 Wall. 205 
 
 442 v. Pond, 5 Fed. R. 31 
 
 y. Ricketts, 2 Johns. Ch. (N. Y) 
 
 558 425 232 
 
 v . 1 3 Johns. Ch. (N. Y.) 555 
 
 186 v. Robertson, 2 Phill. 173 
 
 v. Swann, 9 Pet. 1 
 
 620 v. , 10 Pet. 497 4, 418 
 
 119 v. The Independence, Crabbe, 
 
 309 54 401 
 
 597 „. Toledo, P. & W. R. Co., 35 
 
 605 Fed. R. 444 375 
 
 452 v. Vermuden, 1 Chan. Cas. 272 
 
 91, 92, 124 
 
 197 v. Warner, 3 Beav. 292 257 
 
 343 Browne v. Browne, 1 Wash. 429 26 
 
 480 Brownell v. Curtis, 10 Paige (N. Y.), 
 89 210 205, 225 
 
 Brownsville v. Loague, 129 U. S. 493 
 186 536, 539 
 
 159 Brownsword v. Edwards, 2 Ves. Sen. 
 
 21:; 173 
 
 291 Broyles v. Buck, 37 Fed. R. 137 483 
 
 467 Bruce v. Manchester & K. R. R. Co., 
 562 117 U. S. 514 23, 24, 596 
 
 328 Brug^er v. State Investment Ins. Co., 
 5 Sawy. 304 13 ; 
 
 471 Brundage v. Goodfellow, 4 Halst. Ch. 
 337 (N.J.') 513 
 
 332 Brunker, Ex parte, 3 P. Wms. 312 
 226 Brunswick (Duke of) v. King of Han- 
 478 over, 6 Beav. 1 
 
 126 
 
 213 
 
 241 
 
 73 
 
 Co., 5 
 
 89, 291 
 
 531 
 
 426 
 215 
 530 
 
 ,284 
 
 90 
 
 284 
 
 467 
 
 125 
 
 168 
 
 391 
 
 68
 
 XXX 
 
 TABLE OF CASES. 
 [References are to pages.] 
 
 Bryan v. Parker, 1 Y. & C. 170 448 
 
 v. Spruill, 4 Jones Eq. (N. C) 
 
 27 116 
 
 Bryant v. Leyland, 6 Fed. R. 12 652 
 
 y. Thompson, 27 Fed. R. 881 687 
 
 v. Western Un. Tel. Co., 17 Fed. 
 
 R. 825 324 
 
 Buchanan v. Hodgson, 11 Beav. 368 205 
 
 v. Howland, 2 Fisher Pat. Cas. 
 
 341 333 
 
 Bucher v. Cheshire R. R. Co., 125 
 
 U. S. 555 557, 558 
 
 Buck v. Fawcett, 3 P. Wins. 242 527 
 
 v. Hermance, 1 Blatchf. 322 333 
 
 v. Piedmont & A. L. I. Co., 4 Fed. 
 
 R. 849 12, 379, 380 
 
 Buckeridge v. Glasse, 1 Cr. & Ph. 126 121 
 Buckingham v. Burgess, 3 McL. 368 
 
 425, 426 
 
 v. McLean, 13 How. 150 467, 604 
 
 Buckingham (Duke of) v. Duchess 
 of Buckingham, 2 Eq. Cas. Abr. 
 527 340 
 
 Buckley v. United States, 4 How. 251 406 
 Buckner v. Finley, 2 Pet. 586 33 
 
 Buddicum v. Kirk, 3 Cranch, 293 429, 431 
 Buel v. Van Ness, 8 Wheat. 312 616 
 
 Buell v. Conn. Mut. L. I. Co., 1 Cin. 
 
 L. B. 51 553 
 
 Buerk v. Imhaeuser, 8 Fed. R. 457 
 
 107, 126, 140, 141, 149, 151, 162, 176 
 Buffalo Ins. Co. v. Providence & S. 
 
 S. S. Co., 29 Fed. R. 237 491 
 
 Buffington v. Harvey, 95 U. S. 99 
 
 519, 520, 524 
 Buford v. Strother, 3 McCra. 253 ; 10 
 
 Fed. R. 406 
 Bull v. Bank of Kasson, 123 U. S. 
 
 105 
 Bullen t?. Michel, 2 Price, 399 
 Bullinger v. Mackey, 14 Blatchf. 355 
 Bullock v. Richardson, 11 Ves. 375 
 Bunbury v. Bunbury, 1 Beav. 318 
 Bunce v. Gallagher, 5 Blatchf. 481 
 Bunker v. Stevens, 26 Fed. R. 245 
 Burch v. Cavanaugh, 12 Abb. Pr. n. s. 
 
 (N. Y.) 410 310 
 
 Burck v. Taylor, 39 Fed. R. 581 570, 
 
 574, 575 
 Burdell, Ex parte, 32 Fed. R. 681 494 
 
 Burdett, In re, 127 U. S. 771 
 Burdick v. Hale, 7 Biss. 96 
 Burdsall v. Curran, 31 Fed. R. 918 
 Burford, Ex parte, 1 Cranch C. C 
 456 
 
 v . , 3 Cranch, 448 540, 545 
 
 Burgess v. Graffam, 10 Fed. R. 216 238 
 
 v. Seligman, 107 U. S. 20 557, 558 
 
 Burkett v. Randall, 3 Meriv. 466 447 
 
 Burlington, C. R. & N. Ry. Co. v. 
 Dunn, 121 U. S. 182 609 
 
 v. , 122 U. S 513 590 
 
 v. Simmons, 123 U. S. 52 467 
 
 Burnett v. Chetwood, 2 Meriv. 441 316 
 v. Craig, 30 Ala. 135 310 
 
 Burney v. Morgan, 1 Sim. & S. 358 89 
 Burnham v. Bowen, 111 U. S. 776 349, 
 350, 351, 353 
 
 v. Dalling, 18 N. J. Eq. 132 
 
 v. Rangeley, 2 Woodb. & M. 
 
 417 
 
 212 
 480 
 
 172 
 
 v. Webster, 1 Woodb. & M. 
 
 199 
 
 29 
 
 33 
 
 450 
 232 
 136 
 304 
 4 
 478 
 
 534 
 573 
 514 
 
 508 
 
 Burnley v. Town of Jeffersonville, 3 
 
 McL. 336 186, 211 
 
 Burpee v. First Nat. Bank, 5 Biss. 
 
 405 219, 220 
 Burr, Ex parte, 9 Wheat. 529 535 
 v. Des Moines R. R. & N. Co., 1 
 
 Wall. 99 555 
 
 Burrell v. Hackley, 35 Fed. R. 833 396 
 
 v. Pratt, 35 Fed. R. 834 396 
 
 Burrowes v. Lock, 10 Ves. 470 479 
 Burton v. Smith, 4 Wash. 522 85 
 v. West Jersey Ferry Co., 114 
 
 U. S. 474 560 
 
 Bushnell v. Kennedy, 9 Wall. 387 33, 
 
 161, 587 
 Bussard v. Catalino, 2 Cranch C. C. 
 
 421 424, 494 
 
 Butler v. Douglass, 3 Fed. R. 612 444 
 
 v. Freeman, Ambl. 301 344 
 
 v. Young, 1 Flipp. 276 5 
 
 Butterworth v. Bailey, 15 Ves. 358 238 
 
 v. Hill, 114 U. S. 128 152, 162, 169 
 
 Butz T. E. R. Co. v. Jacobs Electric 
 
 Co., 36 Fed. R, 191 322 
 
 Buxton v. James, 5 De G. & Sm. 80 197, 
 
 315 
 
 v. Lister, 3 Atk. 383 318 
 
 Buzard v. Houston, 119 U. S. 347 7,8,17 
 Byers v. Fowler, 12 Ark. 218 563 
 
 Byrne v. Byrne, 2 Sch. & Lef. 537 326 
 Byron, In re, 18 Fed. R. 722 544 
 
 Byron (Lord) v. Johnston, 2 Meriv. 
 
 29 331, 332 
 
 Cabrera, Ex parte, 1 Wash. 232 391 
 
 Calm v. Qung Wah Lung, 28 Fed. R. 
 
 396 482, 485 
 
 Caldwell v. Taggart, 4 Pet. 190 101, 104 
 
 v. Walters, 4 Cranch C. C. 577 
 
 335, 336 
 California A. S. P. Co. v. Molitor, 113 
 
 U. S. 609 504, 597 
 
 Calkins v. Bertrand, 8 Fed. R. 755 478, 
 
 479 
 Callaghan v. Mvers, 128 U. S. 617 463 
 Callicot, Re, 8 Blatchf. 89 542 
 
 Calloway v. Dobson, 1 Brock. 119 243 
 Cal verley v. Williams, 1 Ves. Jr. 211 251 
 Calvert v. Gray. 2 Coop. Ch. 171, n. 330 
 Camblos v. Philadelphia & R R. R. 
 
 Co., 9 Phila. (Pa.) 411; 4 Brewst. 
 
 (Pa.) 563 325, 326
 
 TABLE OF CASES. 
 [References are to pages.] 
 
 XXXI 
 
 579 
 
 564 
 502 
 
 435 
 
 587 
 
 369 
 
 555 
 
 65 
 
 247 
 
 276 
 472 
 564 
 623 
 120 
 
 Cambria Iron Co. v. Ashburn, 118 
 
 U. S. 54 
 Camburton v. United States, 95 U. S. 
 
 285 
 Camden v. Mayliew, 129 U. S. 73 
 Camden & A. K. R. Co. v. Stewart, 4 
 
 C. E.Green (N. J.), 69 
 Cameron v. Hodges, 127 U. S. 322 
 
 v. McRoberts, 3 Wheat. 591 96, 104 
 
 Camp v. Receivers of Niagara Bank, 
 
 2 Paige (N. Y.), 283 
 Campbell v. Boyreau, 21 How. 223 
 
 v. Campbell, 2 M. & C. 25 
 
 . v. , 2 Halst. Eq. (N. J.) 740 
 
 v. City of New York, 35 Fed. R. 
 
 14 
 
 v. Holyland, L. R. 7 Ch. D. 166 
 
 v. James, 3 Fed. R. 513 
 
 „. f 31 Fed. R. 525 
 
 v. Mackay, 1 M. & Cr. 603 
 
 p. Mayor, &c. of N. Y., 33 Fed. 
 
 R. 795 184, 205 
 
 v. Read, 2 Wall. 198 593 
 
 v. Seaman, 63 N. Y. 568 308 
 
 v. Tousey, 7 Cow. (N. Y.) 64 68 
 
 Canal Co. v. Gordon, 6 Wall. 561 97, 99 
 Canal & C. Sts. R. R. Co. v. Hart, 114 
 
 U. S. 654 562 
 
 Candler v. Pettit, 1 Paige (N. Y.), 168 240 
 Cannon v. Pratt, 99 U. S. 619 591, 592 
 
 v. United States, 118 U. S. 355 593 
 
 Carey v. Brown, 92 U. S. 171 87 
 
 Carlisle v. Cooper, 3 C. E. Green 
 
 (N. J.), 241 439 
 
 Carlisle (Countess of) v. Lord Berk- 
 ley, Amb. 599 382 
 Carnochan v. Christie, 11 Wheat. 446 246, 
 
 247 
 Carnotic (Nabob of) v. East India Co., 
 
 1 Ves. Jr. 374 244 
 
 Caro v. Metropolitan El. Ry. Co., 46 
 
 N. Y. Super. Ct. 138 
 Carpenter v. Providence Wash. Ins. 
 
 Co., 4 How. 185 
 
 v. , 16 Pet. 495 444, 557 
 
 v. Westinghouse A. B. Co., 32 
 
 Fed. R. 434 
 Carper v. Fitzgerald, 121 U. S. 87 
 Carr v. United States, 98 U. S. 433 
 Carrington v. Florida R. R. Co., 
 
 Blatchf. 468 
 
 r. Holly, 1 Dick. 280 
 
 v. Stimson, 1 Curt. 437 
 
 Carrington (Lady) v. Cantillon, Bunb. 
 
 107 
 Carroll v. Parran, 1 Bland (Md.), 
 
 125, n. 
 
 v. Safford, 3 How. 441 
 
 Carroll County v. Smith, 111 U. S. 
 
 556 
 Carron Iron Co. v. Maclaren, 5 H. L. 
 
 C. 416 468 
 
 Carson v. Dunham, 121 U. S. 421 572, 
 
 573, 574, 587, 590 
 
 v. Hyatt, 118 U. S. 279 26 
 
 309 
 
 396 
 
 155 
 548 
 
 68,69 
 
 9 
 587 
 435 
 425 
 
 155 
 
 521 
 15 
 
 558 
 
 Carson v. Robertson, Chase's Dec. 475 84 
 Carson & R. Lumber Co. v. Holtz- 
 
 claw, 39 Fed. R. 578 578, 579 
 
 „. } 39 Fed. R. 885 578 
 
 Carstairs v. Mechanics' & T. Ins. Co., 
 
 13 Fed. R. 823 155 
 
 Cart v. Hodgkin, 3 Swanst. 161 450 
 
 Carte v. Ball, 3 Atk. 496 211 
 
 Carter v. De Brune, 1 Dick. 39 155 
 
 v. Ingraham, 43 Ala. 78 141, 149 
 
 v. New Orleans, 19 Fed. R. 659 291 
 
 Carwick v. Young, 2 Swanst. 239 440 
 Cary, In re, 10 Fed. R. 622 293, 505 
 v. Domestic Springued Co., 2d 
 
 Fed. R. 38 331 
 
 Casamajor v. Strode, 1 Sim. & S. 
 
 381 328 
 
 Casborne v. Barsham, 5 M. & C. 113 450 
 Case i\ Beauregard, 99 U. S. 119 18 
 
 v. , 101 U. S. 688 18, 445 
 
 v. Clarke, 5 Mason, 70 27 
 
 v. Redfield, 4 McL. 526 125, 131 
 
 Caster v. Wood, Baldw. 289 228, 245 
 
 Castle v. Bullard, 23 How. 172 556 
 
 Castro v. De Uriarte, 12 Fed. R. 251 530 
 Cathcart v. Hewson, 1 Hayes, 173 499 
 Catherwood v. Gapete, 2 Curt. 94 550 
 Catlett v. Pacific Ins. Co., 1 Paine, 
 
 594 27, 398 
 
 Catterall v. Purchase, 1 Atk. 290 525 
 
 Catton v. Earl of Carlisle, 5 Madd. 
 
 427 266, 276 
 
 Ca vender v. Ca vender, 114 U. S. 464 186 
 
 p. 1 3 McCra. 383 486 
 
 Cawthorn v. Chalie, 2 Sim. & S. 127 170 
 Celluloid Manuf. Co. v. Arlington 
 
 Manuf. Co., 34 Fed. R. 324 322 
 
 v. Chandler, 27 Fed. R. 9 483- 
 
 v. Goodyear D. V.Co., 13 Blatchf. 
 
 375 324 
 
 v. Russell, 35 Fed. R. 17 423 
 
 Central Nat. Bank v. Hazard, 30 Fed. 
 
 R. 484 367 
 
 Central Pacific R. R. v. Dyer, 1 Sawy. 
 
 641 122, 124 
 
 Central R. R. & B. Co. v. Pettus, 113 
 
 U. S. 116 88, 90, 290, 477, 481, 496, 
 
 497, 498 
 Central Trust Co. v. East Tenn., Va. 
 
 & Ga. R. Co., 30 Fed. R. 895 12, 352 
 
 Ohio Cent. R. R. Co., 23 Fed. 
 
 R. 306 
 
 v. Texas & St. L. Ry. Co., 22 Fed. 
 
 360, 386 
 
 347, 352 
 
 354 
 
 352, 353 
 
 378 
 
 463 
 
 Co., 
 
 384 
 363, 365, 
 366, 368, 372 
 , 20 Fed. R. 74 375 
 , 27 Fed. R. 175 462 
 , 29 Fed. R. 618 12, 346, 387 
 
 R. 135 
 
 — v. , 23 Fed. R. 673 
 
 — v. , 23 Fed. R. 703 
 
 — v. ,24 Fed. R. 153 
 
 — „. ( 32 Fed. R. 448 
 
 — v. Wabash, St. L. & P. R. R 
 23 Fed. R. 675 
 
 — v. , 23 Fed. R. 863
 
 XXX11 
 
 TABLE OF CASES. 
 [References are to pages.] 
 
 398 
 376 
 
 207 
 
 Central Trust Co. p. Wabash, St. L. & 
 P. R. R. Co , 32 Fed. R. 187 384, 385 
 
 v . 32 Fed. R. 684 482, 483 
 
 v. , 34 Fed. R. 259 363, 374, 375 
 
 Centre p. Keene, 2 Cranch C. C. 198 426 
 Chadwick v. Broadwood, 3 Beav. 316 208 
 
 v. United States, 3 Fed. R. 750 
 
 Chalie v. Pickering, 1 Keen, 749 
 Chamberlain v. Agar, 2 Ves. & B. 
 
 259 
 Chamberlaine v. Chester & B. Ry. 
 
 Co, 1 Exch. 869 299, 300 
 
 Chamley p. Lord Dunsany, 2 Sch. & 
 
 Lef. 090 247, 248 
 
 Chancey v. May, Prec. Ch. 592 90 
 
 Chandos (Duke of) v. Talbot, 2 P. 
 
 Wms. 372 80 
 
 Chanute City p. Trader, 132 U. S. 210 616 
 Chapin p. Sears, 18 Fed. R, 814 125 
 
 v. Walker, 6 Fed. R. 794; 2 
 
 McCra. 175 211, 246 
 
 Chaplin V. Young, 6 L. T. n. s. 97 356 
 Chapman p. Barger, 4 Dill. 557 29 
 
 p. Barney, 129 U. S. 677 27, 88, 
 
 245, 481, 590 
 
 v. Borer, 1 Fed. R. 274 11 
 
 p. Derby, 2 Vern. 117 4 
 
 p. School District No. 1, Deady, 
 
 108 116, 191, 211, 217 
 
 Chappedelaine v. Dechenaux, 4 
 
 Cranch, 306 
 Chappell p. Purday, 4 Y. & C. 485 
 
 p. Sheard, 1 Jur. n. s. 996 
 
 Charles River Bridge p. Warren 
 
 Bridge, 6 Pick. (Mass.) 376 
 Chase v. Dunham, 1 Paige (N. Y.), 
 572 235 
 
 p. Edwards, 2 Wend. (N. Y. ) 283 409 
 
 p. Sanborn, 6 Off. Gaz. 932 314 
 
 Chateaugay O. & I. Co., Petitioner, 
 
 128 U. S. 544 534, 559, 560 
 
 Chatfield v. Boyle, 105 U. S. 231 596 
 
 Chedworth (Lord) v. Edwards, 8 Ves. 
 
 46 305 
 
 Cherokee Nation v. Georgia, 5 Pet. 1 
 
 77,78 
 Cherrey v. Monro, 2 Barb. Ch. (N. Y.) 
 
 618 
 Chertsy Market, In re, 6 Price, 261 
 Chesapeake & O. R. R. Co. p. Fatton, 
 
 5 W. Va. 234 
 Chester p. Life Assoc, of Amer., 4 Fed. 
 
 R. 487 257, 259, 338 
 
 Chetwynd p. Lindon, 2 Ves. Sen. 450 179 
 Chicago & A. Ry. Co. v. New York, 
 L. E. & W. R. Co., 34 Fed. R. 516 325 
 
 v. Union R. M. Co, 109 U. S. 702 
 
 184, 205, 232, 254, 434 
 Chicago & V. R. R. Co. v. Fosdick, 106 
 
 U. S. 47 472, 473 
 
 Chicago, B. & Q. R. Co. v. Burlington, 
 
 C. H. & N. R. Co., 34 Fed. R. 481 331 
 Chicago, I. & N. P. R. R. Co. v. Min- 
 nesota & N. W. R. R. Co., 29 Fed. 
 R. 337 508 
 
 34 
 
 84 
 
 314 
 
 340 
 
 175 
 297 
 
 309 
 
 579 
 
 397 
 189 
 
 Chicago, M. & St. P. Ry. Co. v. Beck- 
 er, 32 Fed. R. 849 570 
 
 p. Hartshorn, 30 Fed. R. 541 1 77 
 
 Chicago, St. L. & N. O. R. R. Co. v. 
 Macomb, 2 Fed. R. 18 136, 170, 178, 
 
 179, 180 
 Chicago, St. P, M. & O. R. R. Co. v. 
 
 Dakota Co, 28 Fed. R. 219 27 
 
 Childras v. Emory, 8 Wheat. 642 34 
 
 Chiles, Re, 22 Wall. 157 502 
 
 Chisholm p. Georgia, 2 Dall. 419 72 
 
 Chittenden v. Darden, 2 Woods, 437 549 
 Cholmondeley (Marquis) v. Lord Clin- 
 ton, 2 Jac. & W. 1 83, 84 
 
 v. , 2 Meriv. 71 239, 418 
 
 Chowick v. Dimes, 3 Beav. 290 257, 258, 
 
 338 
 Christie, Matter of, 5 Paige (N. Y.), 
 242 406, 409 
 
 p. Craig, 2 Meriv. 137 306 
 
 Christmas p. Russell, 14 Wall. 69 28 
 
 Christy, In re, 3 How. 292 533 
 
 Church v. Hubbart, 2 Cranch, 186 401 
 
 v. Marsh, 2 Hare, 652 293 
 
 Churton v. Frewen, L. R. 1 Eq. 238 244 
 City Bank p. Bangs, 2 Paige (N. Y.), 
 570 145, 146 
 
 v. Skelton, 2 Blatchf. 14 301 
 
 Claflin v. Commonwealth Ins. Co., 110 
 
 U. S. 81 
 Clare v. Wood, 1 Hare, 314 
 Claridge v. Hoar, 14 Ves. 59 
 Clark v. American D. & I. Co, 25 Fed. 
 R. 641 493 
 
 v. Barnard, 108 U. S. 436 73 
 
 v. Blair, 14 Fed. R. 812 513 
 
 v. Freeman, 11 Beav. 112 323 
 
 v. Hall, 7 Paige (N. Y.), 382 514 
 
 p. Hancock, 94 U. S. 493 616 
 
 p. Killian, 103 U. S. 766 519, 520 
 
 v. Lord Rivers, L. R. 5 Eq. 91 119 
 
 p. Periam, 2 Atk. 337 117 
 
 v. Reyburn, 8 Wall. 318 472 
 
 v. Scott, 5 Fisher Pat. Cas. 245 212 
 
 v. Smith, 13 Pet. 195 9, 558 
 
 p. Sohier, 1 Woodb. & M. 368 559 
 
 v. Wooster, 119 U. S. 322 15 
 
 Clark's Ex'rs p. Van Riemsdyk, 9 
 
 Cranch, 153 218, 396 
 
 Clarke, Ex parte, 1 Russ. & M. 563 328 
 
 p. , 100 U. S. 399 541, 543, 547 
 
 v. Byne, 13 Ves. 386 143 
 
 v. Mathewson, 12 Pet. 164 28, 111, 
 
 262, 267 
 
 p. , 2 Sumner, 262 262, 267 
 
 p. Morey, 10 Johns. 69 64 
 
 v. Priced 2 Wils. Ch. Cas. 157 318, 
 
 319 
 
 v. Tipping, 4 Beav. 588 247, 248 
 
 p. Threlkeld, 2 Cranch C. C. 408 514 
 
 p. White, 12 Pet. ITS 319, 325 
 
 Clarkhuff p. Wisconsin, I. & N. R. R. 
 
 Co, 26 Fed. R. 465 590 
 
 Cl.ixton v. Adams, 1 MacAr. (D. C.) 
 496 425, 427
 
 TABLE OF CASES. 
 [References are to pages] 
 
 XXX1U 
 
 Clavbrook v. City of Owensboro, 23 
 
 Fed. R. 631 325 
 
 Clement v. Griffith, C. P. Coop. 470 284 
 Clements v. Moore, 6 Wall. 299 232, 245 
 Cleveland v. Chamberlain, 1 Black, 
 
 419 504 
 
 Cleveland Ins. Co. v. Eeed, 1 Biss. 
 
 180 10, 197 
 
 Clifton v. United States, 4 How. 242 406 
 Clinch v. Financial Corporation, L. 
 
 B. 4 Ch. 117 89 
 
 Clinton v. Englebrecht, 13 Wall. 434 20 
 Clinton Bridge, The, 10 Wall. 454 198 
 Cliquot's Champagne, 3 Wall. 114 4U0 
 Clodimoro Cota, Ex parte, 110 U. S. 
 
 385 548 
 
 Clum v. Brewer, 2 Curt. 506 336 
 
 Coal Co. v. Blatchford, 11 Wall. 172 20 
 Cobb v. Globe Mut. L. I. Co., 3 Hughes, 
 
 452 585 
 
 Cobbeltiom v. William, Chan. Cal. II. 3 
 Coburn v. Cedar Valley L. & C. Co. 
 
 25 Fed. R. 791 574 
 
 Cochrane v. O'Brien, 2 Jones & La. T. 
 
 380 143 
 Cock v. Evans, 9 Yerg. (Tenn.) 287 244 
 Cocker v. Bevis, 1 Ch. Cas. 61 528 
 v. Franklin H. & B. Co., 1 Story, 
 
 169 428 
 
 Codrington v. Houlditch, 5 Sim. 286 264 
 
 v. Johnstone, 1 Beav. 520 359 
 
 Coe v. Louisville & N. B. B. Co., 3 
 
 Fed. B. 775 325, 326 
 v. New Jersey Midland By. Co., 
 
 27 N. J. Eq. 37 347, 365, 366 
 
 Coffeen v. Brunton, 5 McL. 256 333 
 
 Coffin v. Heath, 6 Met. (Mass.) 76 472 
 Cohen v. Commissioners of Goldsboro, 
 
 77 N. C. 2 310 
 
 Cohens v. Virginia, 6 Wheat. 264 25, 613 
 Colin v. Louisville, N. O. & T. B. B. 
 
 Co., 39 Fed. B. 227 579 
 Coiron v. Millaudon. 19 How. 113 99 
 Coit v. Campbell, 82 N. Y. 509 265 
 17. North Carolina G. A. Co., 9 
 
 Fed. B. 577 398, 552 
 
 Colburn v. Duncombe, 9 Sim. 151 84 
 
 Cole S. M. Co. v. Virginia & G. H. W. 
 
 Co., 1 Sawy. 470 324, 325 
 
 v. , 1 Sawy. 685 294, 325, 337, 342 
 
 Coleman v. Martin, 6 Blatchf. 119 290 
 
 y . ; 6 Blatchf. 291 231 
 
 v. West Hartlepool Ry. Co., 8 W. 
 
 B. 734 328 
 
 Colgate v. Compagnie Francaise, 23 
 
 Fed. B. 82 398, 418. 552 
 
 Collins v. Peebles, 2 Fisher's Pat. Cas. 
 
 541 10 
 
 — v. Wellington, 31 Fed. 11. 244 571 
 
 Collinson v. , 18 Ves. 353 281, 891, 
 
 392 
 Colman v. Eastern Counties By. Co., 
 
 10 Beav. 1 298, 299 
 
 Colombian Govt. v. Bothschilil, 1 Sim. 
 
 94 139 
 
 Colson v. Lewis, 2 Wheat. 377 27, 28 
 
 v. Thompson, 2 Wheat. 336 300 
 
 Colton v. Boss, 2 Paige (N. Y.), 396 118 
 Columbia College v. Lynch, 70 N. Y. 
 
 440 300 
 
 17. Thacher, 87 N. Y. 311 301 
 
 Columbian Ins. Co. v. Stevens, 37 
 
 N. Y. 536 369 
 
 Colvin, Matter of, 3 Md. Ch. 279 312 
 
 Commercial & S. Bank v. Corbett, 5 
 
 Sawy. 172 584 
 
 Commercial Mut. M. I. Co. v. Union 
 
 Mut. Ins. Co., 19 How. 318 215 
 
 Commissioners v. Aspinwall, 24 How. 
 
 376 536 
 
 v. Gorman, 19 Wall. 061 500, 563 
 
 v. Sellew, 99 U. S. 624 538, 539 
 
 Commissioners of Johnson County v. 
 
 Thayer, 94 U. S. 631 557 
 
 Commissioners of Tippecanoe County 
 
 17. Lucas, 93 U. S. 108 614 
 
 Commonwealth v. Franklin Ins. Co., 
 
 115 Mass. 278 372, 374 
 
 Concannon v. Cruise, 2 Moll. 332 398 
 
 Conn v. Penn, 5 Wheat. 424 199 
 
 Connecticut Mut. L. I. Co., Petitioner, 
 
 131 U. S., App. clxxx. 535 
 
 v. Cushman, 108 U. S. 51 9, 473 
 
 v. Union Trust Co., 112 U. S. 
 
 250 411 
 
 Connecticut & P. B. B. Co. v. Hendee, 
 
 27 Fed. B. 678 434 
 
 Conner v. Belden, 8 Daly (N. Y.) 
 
 257 386, 387 
 
 Connolly v. Belt, 5 Cranch C. C. 405 309 
 
 17. Kretz, 78 N. Y. 620 387 
 
 Conolly v. Taylor, 2 Pet. 556 239 
 
 i7. Wells, 33 Fed. R. 205 93 
 
 Conry v. Caulfield, 2 Ball & B. 255 247 
 Consolidated S. V. Co. v. Asliton 
 
 Valve Co., 26 Fed. B. 319 14 
 
 Const v. Harris, Turn. & B. 496 343, 
 
 356 
 Continental Ins. Co. v. Bhoads, 119 
 
 U. S. 237 480, 590 
 
 Continental Store Service Co. v. Clark, 
 
 100 N. Y. 365 25 
 
 Conyers v. Lord Abergavenny, 1 Atk. 
 
 285 
 Cook v. Bamfield, 3 S wanst. 607 
 
 91, 124 
 522, 524, 
 525 
 
 v. Bay, 4 How. (Miss.) 485 447 
 
 17. Bee, 2 Tenn. Ch. 344 244 
 
 i?. Mancius, 3 Johns. Ch. (N. Y.) 
 
 427 196 
 
 v. Staats, 18 Barb. (N. Y.) 107 407 
 
 t?. Whitney, 3 Woods, 715 579 
 
 Cooke v. Davies, Turn. & B. 309 151, 241 
 
 17. Gwvn, 3 Atk. 689 377 
 
 v. Seligman, 7 Fed. B. 263 573, 574 
 
 Coombe v. Stewart, 13 Beav. 11 172 
 Coombs 17. Brooks, 3 De G. & S. 452 453 
 Coon v. Abbott, 37 Fed. B. 98 422 
 Cooper y. Galhraith, 3 Wash. 546 27 
 17. Lewis, 2 Phill. 178 434
 
 XXXIV 
 
 TABLE OF CASES. 
 [References are to pages.] 
 
 Cooper v. Mattlievs, 8 Law Rep. 413 ; 
 
 5 Penn. L. J. 38 332, 337 
 v. New Haven S. B. Co., 18 Fed. 
 
 R. 588 480 
 
 v. Phibbs, L. R. 2 H. L. 170 3 
 
 v. Schlesinger, 111 U. S. 148 560 
 
 v. Wood, 5 Beav. 391 283 
 
 Cooper Manuf. Co. v. Ferguson, 113 
 
 U. S. 727 154 
 
 Copeland v. Wheeler, 4 Bro. C. C. 256 
 
 219, 225 
 Copen v. Flesher, 1 Bond, 440 123, 239 
 Corbin v. County of Black Hawk, 105 
 
 U. S. 659 33 
 
 Core v. Vinal, 117 U. S. 347 571 
 
 Cornell v. Williams, 20 Wall. 226 402, 
 
 409, 425 
 Corning v. Troy Iron & Nail Factory, 
 
 15 How. 451 623 
 
 Costs in Civil Cases, 1 Blatclif. 652 5 
 
 Cottier v. Stiinson, 18 Fed. R. 689 530 
 Cottingham v. Earl of Shrewsbury, 3 
 
 Hare, 627 475 
 
 Cottle v. Krementz, 25 Fed. R. 494 210 
 Coulson v. Walton, 9 Pet. 62 78 
 
 Countess of Carlisle v. Lord Berkley, 
 
 Amb. 599 382 
 
 Countess of Plymouth v. Bladon, 2 
 
 Vern. 32 440 
 
 Countess of Portland v. Prodgers, 2 
 
 Vern. 104 64 
 
 County Court of Taylor Co v. Balti- 
 
 timore & O. R. R. Co., 35 Fed R. 
 
 161 570 
 
 Cousins v. Smith, 13 Ves. 164 327 
 
 v , 13 Ves. 542 90 
 
 Coveny v. Athill, 1 Dick. 355 415 
 
 Covington Drawbridge Co. v. Shep- 
 herd, 21 How. 112 344 
 Cowdray v. Cross, 24 Beav. 445 508 
 Cowdrev v. Galveston, H. & H R R 
 
 Co., 93 U. S. 352 496, 497, 498 
 
 v. Railroad Co., 1 Woods, 331 
 
 361, 362, 379, 381, 384, 385 
 Cowles v. Mercer County, 7 Wall 
 
 118 8, 26 
 
 v. Whitman, 10 Conn. 121 297 
 
 Cowslad r. Cely, Prec. in Ch. 83 96 
 Cowtan v. Williams, 9 Ves. 107 143, 145 
 Cox v. Barney, 14 Blatchf. 289 504 
 v Land & Water Journal Co. 
 
 L. R. 9 Eq. 324 316 
 
 v. Wright, 9 Jur. N. s. 981 66, 285 
 
 Cov v. Perkins, 13 Fed. R. Ill 482 
 
 Cragin v. Lovell, 109 U. S. 194 18 
 
 Craig v. Leitensdorfer, 123 U. S 189 17 
 Crampton v Zabriskie, 101 U. S. 601 14 
 Crane, Ex parte, 5 Pet. 189 533, 534 
 
 t;. McCov, 1 Bond, 422 16 
 
 v. .Morris. 6 Pet. 598 556 
 
 Crane Iron Co v. Hoagland, 108 U. 
 
 S. 5 617 
 
 Crawford v. The William Penn, 1 
 
 Pet. C. C. 106 64 
 v. , 3 Wash. 484 186, 211 
 
 Crawshay v. Soutter, 6 Wall. 739 
 Crease v. Babcock, 10 Met. (Mass.) 
 
 532 
 Credit Co. of London v. Arkansas 
 
 Cent. R. R. Co., 15 Fed. R. 46 
 Crehore v. Ohio & M. Ry. Co., 131 
 
 U. S. 240 
 Cremens v. Hawkes, 2 Jones & La 
 
 T. 674 
 Crenshaw, Ex parte, 15 Pet. 119 622, 
 Crescent City L. S. Co. v. Butcher's 
 
 Un. L. S. Co., 12 Fed. R. 225 173, 
 
 Creuze v. Bishop of London, Dick. 
 
 687 
 Crew v. Jolliff, Prec. in Ch. 93 
 v. Martin, 1 Fowler's Exch. Pr. 
 
 225 
 Crews v. Burcham, 1 Black, 352 
 Crittenden, Matter of, 2 Flipp. 212 
 
 v. Field, 8 Gray (Mass.), 621 
 
 Crocket v. Lea, 7 Wheat. 522 
 Crockett v. Bishton, 2 Madd. 446 
 Croft v. Day, 7 Beav. 84 
 Crofts v. Wortley, 1 Chan. Cas. 241 
 
 Cromwell v. County of Sac, 96 U. S. 
 
 51 
 Cropper v. Coburn, 2 Curt. 465 304, 
 Cross, In re, 20 Fed. R. 824 
 
 v. De Valle, 1 Wall. 5 87, 249, 
 
 251, 254, 
 
 v. Morgan, 6 Fed. R. 241 
 
 Crosse v. Bedingfield, 12 Sim. 35 
 
 178, 
 Crossley v. Derby G. L. Co., 4 L. J. 
 
 Ch. n. s. 25 
 
 v. New Orleans, 20 Fed. R. 352 
 
 Crouch v. Hickin, 1 Keen, 385 
 
 v. Kerr, 38 Fed. R. 549 170, 
 
 Crow v. Tyrell, 2 Madd. 397 
 Crowell v. Randell, 10 Pet. 368 
 Crowfoot v. Mander, 9 Sim. 396 
 
 Croxon v. Lever, 12 W. R. 237 
 Cuddy, Ex parte, 40 Fed. R. 62 
 , Petitioner, 131 U. S. 280 
 
 264 
 
 543, 
 
 Cuff v. Platell, 4 Russ. 242 
 
 Cullen v. Duke of Queensberry, 1 
 
 Bro. C. C. 101 
 Cummings v. Akron C. & P. Co., 6 
 
 Blatchf. 509 
 v. Coleman, 7 Rich. Eq. (S. C), 
 
 509 
 
 v. National Bank, 101 U. S. 153 
 
 9, 10, 301, 
 Cummins v. Adams, 2 Ir. Eq. 393 
 Cunningham v. Macon & B. R. R. 
 
 Co., 109 U. S. 446 72, 73, 74, 7€ 
 
 99, 
 v. Otis, 1 Gall. 166 428, 429, 
 
 Cunyngham v. Cunyngham, Amb. 
 89 515, 
 
 601 
 
 89 
 
 366 
 
 587 
 
 377 
 623 
 
 194, 
 208 
 
 379 
 480 
 
 157 
 122 
 489 
 447 
 114 
 408 
 317 
 193, 
 195 
 
 557 
 309 
 544 
 250, 
 475 
 244 
 142, 
 396 
 
 15 
 14 
 182 
 217 
 238 
 615 
 
 256, 
 277 
 471 
 545 
 
 544, 
 545 
 106 
 
 90 
 
 412 
 
 212 
 4, 
 
 558 
 476 
 
 i, 98, 
 323 
 430, 
 432 
 
 516
 
 TABLE OF CASES. 
 [References are to pages.] 
 
 XXXV 
 
 381 
 376 
 
 250 
 136 
 496 
 543 
 
 183 
 183 
 437 
 534 
 122 
 68, 
 370 
 
 Curling v. Marquis Townshend, 19 
 
 Ves. 628 342 > 
 
 Curran v. Craig, 22 Fed. R. 101 361, 
 
 v. St. Charles Car Co., 32 Fed. 
 
 R. 835 
 Curry v. Lloyd, 22 Fed. R. 258 
 Curteis v. Candler, Madd. & G. 123 
 Curtis, Ex parte, 106 U. S. 371 542, 
 Curzon v. De la Zouch, 1 Swanst. 193 
 
 Cust ». Boode, 1 Sim. & S. 21 
 Cuthbert v. Galloway, 35 Fed R. 466 
 Cutting, Ex parte, 94 U. S. 14 
 
 v. Gilbert, 5 Blatchf. 259 
 
 Cuykendall v. Miles, 10 Fed. R. 342 
 
 D. 
 
 DaCosta ». DaCosta, 3 P. Wms. 140 66 
 Dakin 0. Union Pac. Ry. Co., 5 Fed. 
 
 R. 665 173, 208 
 
 Dalby v. Pullen, 1 Russ. & M. 296 463 
 Dale 17. McEvers,2 Cow. (N. Y.) 118 442 
 Dale Tile Manuf. Co. v. Hyatt, 125 
 
 U. S. 46 25 
 
 Dalglish v. Jarvie, 2 Macn. & G. 231 330, 
 
 B 331, 337 
 
 Dalton v. Thomson, 1 Dick. 97 415 
 
 Daly v. Kelly, 4 Dow, 417 306 
 
 v. Maguire, 6 Blatchf. 137 ; 428 
 
 Danbridge v. Washington's Ex'rs, 2 
 
 Pet. 370 85, 96 
 
 Dancer v. Hastings, 4 Bing. 2 361 
 
 Daniel v. Mitchell, 1 Story, 198 515 
 
 Daniels v. Railroad Co., 3 Wall. 250 597 
 Darley v. Nicholson, 2 Dr. & War. 
 
 86 394 
 
 Darlington (Earl of), v. Bowes, 1 
 
 Eden, 271 452 
 
 Darnell v. Reyny, 1 Vern. 344 205, 225 
 Dart v. McKinney, 9 Blatchf. 359 
 Darwent v. Walton, 2 Atk. 510 
 Davenport, Ex parte, 6 Pet. 661 
 
 v. County of Dodge, 105 U 
 
 237 
 
 v. Davenport, 6 Madd. 251 
 
 v. Dows, 18 Wall. 626 
 
 v. Fletcher, 16 How. 142 
 
 v. Stafford, 8 Beav. 503 
 
 Davers v. Davers, 2 P. Wms. 410 
 Davidson v. Lanier, 4 Wall. 447 
 
 Davie v. Heyward, 33 Fed. R. 93 
 Davies v. Corbin, 112 U. S. 36 
 
 v. , 113 U. S. 687 
 
 v. Davies, 9 Ves. 461 
 
 v. , 3 De G. & Sm. 698 
 
 v. Lathrop, 12 Fed. R. 353 
 
 v. , 13 Fed. R. 565 
 
 v. Quaterman, 4 Y. & C. 257 
 
 v. Williams, 1 Sim. 5 
 
 Davis, The, 10 Wall. 15 
 
 585 
 
 96 
 
 535 
 
 , S. 
 536 
 327 
 100 
 604 
 527 
 398 
 603, 
 604 
 597 
 
 24, 536, 
 596 
 616 
 258 
 395 
 26,34 
 
 437, 589 
 126 
 
 170, 270 
 73 
 
 Davis v. American Soc. P. C. A., 6 
 Daly (N. Y.), 81 310 
 
 v. , 75 N. Y. 362 310 
 
 v. Barrett, 7 Beav. 171 283 
 
 v. Braden, 10 Pet. 286 597 
 
 v. Davidson, 4 McL. 136 222, 223 
 
 17. Davis, 2 Atk. 21 166 
 
 v. Duke of Marlborough, 2 
 
 Swanst. 108 342, 356, 372, 387, 388 
 
 v. Duncan, 19 Fed. R. 477 375, 376, 
 
 388 
 
 v. Gaines, 104 U. S. 386 139 
 
 v. Gray, 16 Wall. 203 74, 98, 323, 
 
 356, 357, 359, 361, 369, 371, 372, 378 
 
 v. James, 2 Fed. R. 618 10 
 
 v. Leo, 6 Ves. 784 
 
 v. Michelbacher, 31 N. W. R. 168 
 
 v. St. Louis & S. F. Ry. Co., 25 
 
 Fed. R. 786 551, 
 
 v. Sherron, 1 Cranch C. C. 287 
 
 v. Speiden, 104 U. S. 83 
 
 v. Symonds, 1 Cox Eq. 402 
 
 Davison v. Attorney General, 5 Price, 
 
 398, n. 
 Davoue v. Fanning, 4 Johns. Ch. 
 
 (N. Y.) 199 
 Davy v. Seys, Moseley, 204 
 Daws v. Benn, 1 Jac. & W. 513 
 Dawson v. Raynes, 2 Russ. 466 382, 
 
 v. Sadler, 1 Sim. & S. 537 
 
 v. Yates, 1 Beav. 301 
 
 Day v. Boston Belting Co., 6 Law 
 
 Rep. n. s. 329 
 
 v. Croft, 2 Beav. 488 
 
 v. Hartshorn, 3 Fisher Pat. Cas. 
 
 32 
 v. New England C. S. Co., 3 
 
 Blatchf. 154 332, 
 
 Dayton v. Melick, 27 N. J. Eq. 362 
 Deacon v. Sewing Machine Co., 14 
 
 Reporter, 43 
 Deakin v. Stanton, 3 Fed. R. 435 
 Debenham v. Ox, 1 Ves. Sen. 276 
 Deblanco v. Singletary, 40 Fed. R. 
 
 177 
 Debutts v. McCulloch, 1 Cranch C. 
 
 C. 286 
 De Carriere v. De Calonne, 4 Ves. 
 
 577 
 Decker v. Caskey, 2 Green Ch. (N. 
 
 J.), 446 
 
 v. Grote, 10 Blatchf. 331 
 
 Dedekam v. Vose, 3 Blatchf. 153 
 Deford v. Mehaffy, 13 Fed. R. 481 
 
 Dehon v. Foster, 4 Allen (Mass.), 
 
 545 
 Delancy v. Wallis, 3 Bro. C. C. 12 
 Delaware R. Co. v. Prettyman, 17 
 
 Int. Rev. Rec. 99 
 Dell v. Hale, 2 Y. & C. N. R. 1 
 Del Valle v. Harrison, 93 U. S. 233 
 Denehey v. Harrisburg, 2 Pearson 
 
 (Pa.), 330 
 
 386 
 
 587 
 508 
 522 
 478 
 
 219 
 
 90 
 497 
 103 
 383 
 173 
 377 
 
 406 
 385 
 
 312 
 
 336 
 
 247 
 
 151 
 
 340 
 478 
 
 584 
 
 425 
 
 390 
 
 453 
 213 
 
 498 
 574, 
 588 
 
 304 
 157 
 
 322 
 173 
 602 
 
 324
 
 :xxvi 
 
 TABLE OF CASES. 
 [References are to pages.] 
 
 Y-), 
 
 Denison v. Bassford, 7 Paige (N, 
 
 370 
 Dennis v. County of Alachua, 3 
 
 Woods, 683 573, 
 
 v. Eddy, 12 Blatchf. 195 
 
 Pennison v. Brown, 38 Fed. R. 535 
 Dennistoun v. Draper, 5 Blatchf. 336 
 
 v. Stewart, 18 How. 565 
 
 Dental Vulcanite Co. v. Wetherbee, 
 
 2 Cliff. 555 
 Denton v. International Co. of 
 
 Mexico, 36 Fed. R. 1 30, 153, 
 
 Denver & N. O. R. Co. v. Atchison, 
 
 T. & S. F. R. Co., 13 Fed. R. 546 
 Denver & R. G. Ry. Co. v. Denver, 
 
 S. P. & P. R. Co., 17 Fed. R. 867 
 Derby (Earl of), v. Duke of Athol, 1 
 
 Ves. Sen. 203 
 De Saussure v. Gaillard, 127 D. S. 
 
 216 
 Desbrow v. Crommie, Bunb. 272 
 Deshler v. Dodge, 16 How. 622 
 Des Moines Nav. Co. v. Iowa Home- 
 stead Co., 123 U. S. 552 
 Desplaces v. Goris, 1 Edw. Ch. (N. 
 
 Y.), 350 
 Des Rochers, Ex parte, 1 McAll. 68 
 DeTastet v. Bordenave, Jacob, 516 
 
 Detroit v. Dean, 106 U. S. 537 20, 
 Devaynes v. Morris, 1 M. & Cr. 213 
 Devereaux v. Marr, 12 Wheat. 212 
 Devie v. Lord Brownlow, 2 Dick. 
 
 611 
 Devonsher v. Newenham, 2 Sch. & 
 
 Lef. 199 179, 
 
 Devonshire's (Earl of) Case, 11 Coke, 
 
 89 
 Dewey v. West Fairmont G. C. Co., 
 
 123 U. S. 329 
 De Wolf ». Johnson, 10 Wheat. 367 
 
 v Rabaud, 1 Pet. 476 556, 
 
 Dexter v. Arnold, 5 Mason, 303 519, 
 
 522, 523, 
 
 Dexterville Manuf. & B. Co. v. Case, 
 
 In re, 4 Fed. R. 873 
 Dial i7. Reynolds 96 U. S. 340 83, 84, 
 
 Dick 17. Oil Well Supply Co., 25 Fed. 
 
 R. 105 
 
 v. Struthers, 25 Fed. R. 103 
 
 v. Swinton, 1 Ves. & B. 371 
 
 Dickerson v. Colgrove, 100 U. S. 578 
 Dickinson v. Planters' Bank, 16 Wall, 
 
 250 
 Didier v. Warner, 1 Code R. (N. Y.) 
 
 42 
 Dietzsch v. Huidekoper, 103 U. S. 494 
 
 Digby (Lord) v. Meech, 1 Bunb. 195 
 Diggs v. Wolcott, 4 Cranch, 179 
 Dillon v. Barnard, 21 Wall. 430 171 
 
 v. , 1 Holmes, 386 
 
 v. Francis, 1 Dick. 68 
 
 Dillon (Lord) v. Alvares,4 Ves. 357 
 
 223 
 
 574 
 
 495 
 678 
 588 
 597 
 
 191 
 
 154 
 
 325 
 
 246 
 
 174 
 
 615 
 
 510 
 
 33 
 
 570 
 
 217 
 545 
 448, 
 449 
 128 
 260 
 597 
 
 194 
 
 180 
 
 14 
 
 28 
 
 86 
 
 558 
 
 520, 
 
 525 
 
 352 
 123, 
 
 303 
 
 369 
 
 369 
 
 3<J0 
 
 2 
 
 555 
 
 409 
 
 303 
 131 
 304 
 397 
 171 
 141 
 194 
 
 Dilly w. Doig, 2 Ves. Jr. 486 
 Dimpfell v. Ohio & Miss. R. R, Co., 
 
 110 U. S. 209 20, 
 
 Dinsmore v. Central R. R. Co., 19 
 
 Fed. R. 153 
 i?. Louisville, C. & L. Ry. Co., 
 
 2 Fed. R. 465 325, 
 
 v. Maroney, 4 Blatchf 416 426, 
 
 v. New York Board of Police, 
 
 12 Abb. N. C. (N. Y.) 436 
 v. Philadelphia & R. R. R. Co., 
 
 3 Cent. L. J. 157 
 District of Columbia v. Gannon, 130 
 
 U. S. 227 
 Dixon v. Olmius, 1 Cox Eq. 412 
 
 87. Ramsay, 3 Cranch, 319 
 
 v. Western Un. Tel. Co., 38 Fed. 
 
 R. 377 
 
 v. Wyatt, 4 Madd. 392 
 
 Doane v. Glenn, 21 Wall. 33 
 Doble v. Potman, Hardres, 160 
 Dobson v. Hartford Carpet Co., 114 
 
 U. S. 439 
 Dodge v. Briggs, 27 Fed. R. 161 
 
 v. Card, 2 Fisher Pat. Cas. 116 
 
 v. Israel, 4 Wash. 323 430, 
 
 v. Perkins, 4 Mason, 435 
 
 v. Woolsev, 18 How. 331 98, 
 
 Doe v. Hyde, 1*14 U. S. 247 
 
 v. McFarland, 9 Cranch, 151 
 
 (d. Moore) v. Nelson, 3 McL. 
 
 383 426, 
 
 v. Read, 12 East, 57 
 
 v. Roe, 31 Fed. R. 97 
 
 Doggett v. Emerson, 1 Woodb. & M. 
 
 196 190, 
 
 v. Railroad Co., 99 U. S. 72 86, 
 
 Dolder v. Bank of England, 10 Ves. 
 
 284 226, 
 
 Donaldson v. Williams, 50 Mo. 408 
 Donohoe v. Mariposa, L. & M. Co., 
 
 1 Pac. Coast L. J. 211 
 Doolittle, In re, 23 Fed. R. 544 371, 
 
 v. Bryan, 14 How. 563 
 
 Doo Woon, In re, 18 Fed. R. 898 
 
 Dormer v. Fortescue, 3 Atk. 124 137, 
 Dormitzer v. Illinois & St. L. Bridge 
 
 Co., 6 Fed. R. 217 
 Dorn v. Fox, 61 N. Y. 264 146, 
 
 Dorr v. Gibboney, 3 Hughes, 382 
 
 Dorsey v. Packwood, 12 How. 126 
 Dorsheimer v. Rorback, 9 C. E. Gr. 
 
 (N.J.) 33 
 Dos Hermanos, The, 10 Wheat. 306 
 Doughty v. West, 2 Fisher Pat. Cas. 
 
 553 
 i7. West, B. & C. Manuf. Co., 
 
 8 Blatchf. 107 
 Douglas v. Butler, 6 Fed. R. 228 66 
 
 Douglass v. County of Pike, 101 U. S. 
 677 444, 557, 
 17. Rathbone, 5 Hill (N. Y.), 143 
 
 123 
 
 128 
 
 191 
 
 326 
 427 
 
 310 
 
 27 
 
 595 
 202 
 
 68 
 
 575 
 271 
 431 
 251 
 
 169 
 4 
 312 
 431 
 190 
 128 
 176 
 68 
 
 427 
 359 
 529 
 
 192 
 121 
 
 244 
 3 
 
 254 
 
 372 
 563 
 547, 
 548 
 273 
 
 101 
 301 
 161, 
 162 
 
 300 
 
 514 
 602 
 
 333 
 
 482 
 ,80, 
 239 
 
 558 
 171
 
 TABLE OF CASES. 
 [References are to pages.] 
 
 XXXV 11 
 
 Duvenby Hospital, In re, 1 M. & Cr. 
 
 279 294 
 Dow v. Chamberlin, 5 McL. 281 9 
 v. Memphis & L. K. R. Co., 20 
 
 Fed. R. 260 352, 355 
 
 Dowell v. Applegate, 8 Fed. R. 698 ; 
 
 7 Sawy. 232 187 
 
 v. Mitchell, 105 U. S. 430 17 
 
 Dowling v. Dowling, L. R. 1 Ch., 612 475 
 Uownham v. Alexandria, 9 Wall. 
 
 659 614 
 
 Dows v. Chicago, 11 Wall. 108 16, 254 
 Dowson v. Hardcastle, 2 Cox Eq. 
 
 279 145 
 
 Doyle v. Continental Ins. Co., 94 U. S. 
 
 535 570 
 Drake v. Goodridsje, 6 Blatchf. 151 2y0 
 v. The Oriental, 9 Chic. L. N. 
 
 321 611 
 
 Draper v. Davis, 104 U. S. 347 297 
 
 v. Hudson, 1 Holmes, 208 256 
 
 v. Town of Springport, 15 Fed. 
 
 R. 328 530 
 
 Drew v. Harman, 5 Price, 319 291 
 
 Drexel v. Berney, 14 Fed. R. 268 8 
 
 v. , 122 U. S. 241 18 
 
 Drvbutter v. Bartholomew, 2 P. 
 
 Wms. 127 479 
 
 Dubuque & P. R. R. Co., Exparte, 
 
 1 Wall. 69 535 
 Dudgeon v. Watson, 23 Fed. R. 161 65, 
 
 191, 192 
 Dudley's Case, 1 Penn. L. J. 302 329 
 
 Duff v. Duff, 31 Fed. II. 772 578 
 
 Duffield v. Greaves, Cary, 125 180 
 
 Duke of Beaufort v. Morris, 2 Phill. 
 683 450 
 
 v. Neeld, 12 CI. & Fin. 248 3 
 
 Duke of Bedford v. British Museum, 
 
 2 M. & K. 552 301 
 Duke of Brunswick v. King of Han- 
 over, 6 Beav. 1 68 
 
 Duke of Buckingham v. Duchess of 
 Buckingham, 2 Eq. Cas. Abr. 527 340 
 
 Duke of Chandos v. Talbot, 2 P. 
 Wms. 372 80 
 
 Duke of Somerset v. Cookson, 3 P. 
 Wms. 389; 1 Lea. Cas. in Eq. 821 17, 
 319, 325 
 
 Dummer v. Corporation of Chippen- 
 ham, 14 Ves. 245 83, 178 
 
 Dumont v. Fry, 12 Fed. R. 21 17 
 
 Dumville v. Ashbrooke, 3 Russ. 98, n. 
 
 356 
 
 Duncan v. Darst, 1 How. 301 303, 550 
 
 v. Gegan, 101 U. S. 810 587 
 
 v. Mobile & O. R. R. Co., 2 
 
 Woods, 542 350 
 
 Dundee M. T. I. Co. v. School Dist. 
 No. 1, 19 Fed. R. 359 
 
 Dungey v. Angove, 2 Ves. Jr. 304 
 
 Dunham v. Riley, 4 Wash. 126 
 Dunkley v. Van Buren, 3 Johns. Ch 
 (N. Y.) 330 
 
 16 
 143, 
 115 
 653 
 
 439 
 
 Dunlap v. Stetson, 4 Mason, 349 111, 156 
 Dunlop v. Hubbard, 19 Ves. 205 145 
 
 v. Munroe, 1 Cranch C. C. 536 
 
 426 429 
 Dunn v. Clarke, 8 Pet. 1 28, lll/l66, 
 
 264, 268 
 Dunnegan v. United States, 17 Ct. CI. 
 
 240 564 
 
 Dunny v. Filmore, 1 Vern. 135 523 
 
 Duponti v. Mussy, 4 Wash. 128 231 
 
 Durand v. Hutchinson, Mich. 1771, 
 
 in Chan. 195 
 
 Durant v. Essex Co., 7 Wall. 107 199 
 
 v. , 101 U. S. 555 623 
 
 Durdant v. Redman, 1 Vern. 78 182 
 
 Dursley (Lord) v. Berkeley, 6 Ves. 
 
 251 4, 414 
 
 Dushane v. Benedict, 120 U. S. 630 24 
 Day v. Knowlton, 14 Fed. R. 107 489 
 
 Dwight v. Central Vt. R. R. Co., 9 
 
 Fed. R. 785 11, 175, 181, 194, 196, 203 
 
 v. Humphreys, 3 McL. 104 141, 
 
 176 239 
 
 v. Merritt, 4 Fed. R. 614 ' 531 
 
 Dyer v. Dyer, 2 Cox Eq. 92 3 
 
 Dyson v. Morris, 1 Hare, 413 272 
 
 E. 
 
 Fades v. Harris, 1 Y. & C. N. R. 235 
 Eagle Iron Works, In re, 8 Paige 
 
 (N. Y.), 385 
 Earl of Abergavenny v. Powell, 1 
 
 Meriv. 434 
 Earl of Bath v. Sherwin,4 Bro. P. C. 
 
 373 4, 
 
 Earl of Darlington v. Bowes, 1 Eden, 
 
 271 
 Earl of Derby v. Duke of Athol, 
 
 1 Ves. Sen. 203 
 Earl of Devonshire's Case, 11 Coke, 
 
 107 
 
 416 
 301 
 452 
 174 
 
 Earl of Fingal v. Blake, 2 Moll. 50 343 
 Earl of Ilchester, Exparte, 7 Ves. 
 
 348 474 
 
 Earl of Leicester v. Perry, 1 Bro. 
 
 C. C. 305 189, 211 
 
 Earl of Lichfield v. Bond, 5 Beav. 
 
 513 226 
 
 Earl of Lonsdale v. Church, 3 Bro. 
 
 C. C. 41 373 
 
 Earl of Newburgh v. Countess of 
 
 Newburgh, 5 Madd. 364 448 
 
 Earl of Suffolk v. Green, 1 Atk. 450 4, 
 
 415 
 East India Co. v. Boddam, 13 Ves 
 
 421 
 v. Campbel, 1 Ves. Sen. 246 
 
 515 
 
 20S, 
 227 
 
 East Oakland v. Skinner, 94 U. 
 
 255 443 
 
 East & West India Docks & B. J. Ry. 
 
 Co. v. Dawes, 11 Hare, 363 209
 
 xxxvm 
 
 TABLE OF CASES. 
 
 [References are to pages.] 
 
 Eastman v. Sherry, 37 Fed. R. 844 479, 
 
 491 
 C. Ry. Co., 
 
 363, 375 
 
 Easton v. Houston & T. 
 38 Fed. R. 784 
 
 Eccleston v. Petty, Carth. 79 396 
 
 Echliff v. Baldwin, 16 Ves. 267 306 
 
 Eckert v. Bauert, 4 Wash. 370 156 
 
 Eddleston v. Collins, 3 De G. M. & 
 
 G. 1 247 
 
 Edgell v. Haywood, 3 Atk. 354 8 
 
 Edsell v. Buchanan, 4 Bro. C. C. 254 
 
 170 
 Edwards v. Connecticut Mut. L. I. 
 
 Co., 20 Fed. R. 452 586 
 
 v. Cunlifie, 1 Madd. 287 472 
 
 v. Harvey, G. Coop. 40 496 
 
 Edwin v. Thomas, 1 Vern. 489 453 
 
 Egremont v. Cowell, 5 Beav. 620 114 
 
 Ehrman v. Teutonia Ins. Co., 1 Fed. 
 
 R. 471 530 
 
 Electric Tel. Co. of Ireland, In re, 
 
 10 W. R. 4 283 
 
 Eley v. Broughton, 2 Sim. & S. 188 113 
 
 Elgin v. Marshall, 106 U. S. 578 
 
 23, 595, 
 596 
 
 Ellice v. Goodson, 3 M. & Cr. 653 241 
 v. Roupell, 32 Beav. 299 ; 9 Jur. 
 
 n. s. 530 415 
 t\ , 32 Beav. 308 ; 9 Jur. 
 
 n. s. 533 415 
 
 Elliot v. Hayrran, 2 Cranch C. C. 
 
 678 426 
 
 v. Sinclair, Jacob, 545 391 
 
 v. Van Voorst, 3 Wall. Jr. 299 69 
 
 Elliott v. Lawhead, 43 Ohio St. 171 101 
 
 v. Pell, 1 Paige (N. Y.), 263 247, 
 
 248, 476 
 
 v. Sackett, 108 U. S. 132 3 
 
 v. Wiltz, 107 U. S. 711 72, 75 
 
 Ellis v. Colman, 35 Beav. 662 133 
 
 v. Davis, 109 U. S. 485 9, 16, 18, 
 
 557 
 
 v. Jarvis, 3 Mason, 457 479 
 
 v. Reynolds, 35 Fed. R. 394 158 
 
 Ellsworth v. Curtis, 10 Paige (N. Y.), 
 
 105 228 
 
 Elmendorf v. Delancey, Hopk. (N.Y.), 
 
 555 141 
 
 v. Taylor, 10 Wheat. 152 98, 104 
 
 Elmer v. Creasy, L. R. 9 Ch. 69 219 
 
 Elmore v. Grvmes, 1 Pet. 469 556 
 
 Elmwood v. Marcy, 92 U. S. 289 443 
 
 Emack v. Kane, 34 Fed. R. 46 17, 324 
 
 Embry v. Palmer, 107 U. S. 3 601 
 
 Emerson v. Davies, 3 Story, 768 316 
 
 v. , 1 Woodb. & M. 21 515 
 
 Emma S. M. Co. v. Emma S. M. Co. 
 
 of N. Y., 1 Fed. R. 39 189, 199, 202, 
 
 209 
 
 v. Parks, 14 Blatchf. 411 564 
 
 Emmott v. Mitchell, 14 Sim. 432 188, 
 
 189 
 Emperor of Austria v. Day, 2 Giff. 
 
 628 321, 478 
 
 -, 3 De G. F. & J. 217 321, 478 
 
 Enfield v. Hills, 2 Lev. 238 538 
 
 Engel v. Scheuerman, 40 Ga. 206 305 
 
 England v. Downs, 6 Beav. 269 372 
 
 English v. Foxall, 2 Pet. 595 136 
 
 Knterprise, The, 3 Wall. Jr. 58 536 
 
 Equator M. & S. Co. v. Hall, 100 U. S. 
 
 86 559 
 
 Equitable L. A. Soc. v. Patterson, 
 
 1 Fed. R. 126 125, 173, 182 
 
 Erhardt v. Boaro, 113 U. S. 5:17 14 
 
 Erie Ry. Co. v. Heath, 10 Blatchf. 
 
 214 461 
 
 v. Ramsey, 45 N. Y. 637 194, 303 
 
 Erstein v. Rothschild, 22 Fed. R. 61 530 
 Erwin v. Lowry, 7 How. 172 601 
 
 v. United States, 37 Fed. R. 470 
 
 411,485,486,487,530 
 Esdaile v. La Nauze, 1 Y. & C. 394 305 
 Eslava v. Mazange, 1 Woods, 623 284, 
 
 294, 410 
 Estes v. Belford, 22 Fed. R. 275 154 
 
 v. Gunter, 121 U. S. 183 24, 596 
 
 v. Knickerbocker L. I Co., N. Y. 
 
 Daily Reg., Nov. 17, 1882 
 Etting v. Marx's Ex'r, 4 Fed. R. 673 
 
 Evan v. Avon, 29 Beav. 144 
 Evans v. Bacon, 99 Mass. 213 
 
 v. Bicknell, 6 Ves. 183 
 
 v. Brown, 109 U. S. 180 
 
 v. Coventry, 5 De G. M. 
 
 911 
 
 v. Evans, 1 Ves. Jr. 96 
 
 v. Jackson, 8 Sim. 217 
 
 v. State Nat. Bank, 19 Fed. R. 
 
 676 
 Everest v. Buffalo L. O. Co., 31 Fed. 
 
 R. 742 
 Everett v. Prythergch, 12 Sim. 363 
 Everhart v. Huntsville College, 120 
 
 U. S. 223 
 Evert, Ex parte, 1 Bond, 197 
 Evitt v. Price, 1 Sim. 483 
 Ewing v. Blight, 3 Wall. Jr. 134 
 
 161 
 10, 
 197 
 116 
 526 
 117 
 616 
 G. 
 299, 345 
 394 
 
 84 
 396 
 
 479 
 
 284 
 
 480, 590 
 544 
 325 
 
 183, 202, 
 204 
 205 
 470 
 
 v. 3 Wall. Jr. 139 
 
 Express Cases, 117 U. S. 1 
 
 Express Co. v. Kountze, 8 Wall. 342 567 
 
 v. Railroad Co., 99 U. S. 191 19, 68, 
 
 97, 133 
 Exton v. Turner, 2 Chan. Cas. 80 452 
 Eyre v. Countess of Shaftsbury, 2 P. 
 Wms. 102 471 
 
 v. Highee, 35 Barb. (N. Y.) 502 298 
 
 v. Potter, 15 How 42 119 
 
 Eyry v. Hughes, L. R. 2 Ch. D. 148 247 
 
 Eyster v. Gaff, 91 U. S. 521 
 
 269, 270 
 
 Fagan v. Cullen, 28 Fed. R. 843 488 
 
 Fahie v. Lindsay, 8 Oreg. 474 144 
 
 Fairbanks v. Amoskeag Nat. Bank, 
 30 Fed. R. 602 538, 539, 540
 
 TABLE OF CASES. 
 [References are to pages.] 
 
 XXXIX 
 
 Fairbanks v. Amoskeag Nat. Bank, 
 
 32 Fed. R. 572 602 
 
 Fairbrother v. Prattent, 1 Daniel, 64 145 
 Fairfield v. County of Gallatin, 100 
 
 U. S. 47 443, 557 
 
 Faithful v. Hunt, 3 Anst. 751 85 
 
 Fales v. Chicago, M. & St. P. Ry. 
 
 Co., 32 Fed. R. 673 30, 153 
 
 Fallon v. Railroad Co., 1 Dill. 121 300 
 Fallowes v. Williamson, 11 Ves. 306 81, 
 
 255, 259 
 Falls of Neuse Manuf. Co. v. Georgia 
 
 Home Ins. Co., 26 Fed. R. 1 551 
 
 Farez, In re, 7 Blatchf. 34 544 
 
 , In re, 7 Blatchf. 345 547 
 
 Fargo v. Louisville, N. A. & C. Ry. 
 
 Co., 6 Fed. R. 787 27, 88 
 v. Southeastern Ry. Co., 28 Fed. 
 
 R. 906 479 
 
 Farley v. Kittson, 120 U. S. 303 209, 210, 
 
 397 
 Farlow v. Lea, 2 C. L. R. 329 26 
 
 Farmer v. Calvert Lith. Co., 1 Flipp. 
 
 228 140, 174, 316, 332 
 
 v. Elstner, 33 Fed. R. 494 317 
 
 Farmers' Bank v. Hooff, 7 Pet. 168 596 
 Farmers' L. & T. Co., Petitioner, 129 
 
 U. S. 206 368, 467, 537 
 v. Burlington & S. W. Ry. Co., 
 
 32 Fed. R. 805 363 
 v. Central R. R. of Iowa, 2 Fed. 
 
 R. 656 454 
 v. , 7 Fed. R. 537 ; 2 McCra. 
 
 181 375, 376 
 
 „. 1 8 Fed. R. 60 385 
 
 v. , 17 Fed. R. 758 375, 464, 465 
 
 v. Denver, S. P. & P. R. It. Co., 
 
 1 Ry. & Corp. L. J. 584 25 
 v. Green Bay & M. R. R. Co., 10 
 
 Biss. 203 ; 6 Fed. R. 100 464 
 v. Houston & T. C. R. R. Co., 
 
 U. S. D. C. E. D. Tex. May, 1888 464 
 v. Logansport, C. & S. W. Ry. 
 
 Co., 4 Fed. It. 184 360 
 v. Missouri, I. & N. Ry. Co., 21 
 
 Fed. R 264 291, 353 
 
 v. Waterman, 106 U. S. 265 596 
 
 Farmington v. Pillsbury, 114 U. S. 
 
 138 438 
 
 Farnsworth v. Montana, 129 U. S. 
 
 104 
 
 532, 593 
 
 478 
 
 Far well v. Kerr, 28 Fed. R. 345 
 Faulder v. Stuart, 11 Ves. 296 136 
 
 Faulkner o. Daniel, 3 Hare, 199 103 
 
 Fawkes v. Pratt, 1 P Wins. 593 140 
 
 Fay v. Erie & K. R. It. Bank, Harr. 
 
 (Mich.) 194 388 
 
 Featherstone v. Cooke, L. R. 16 Eq. 
 
 298 345 
 
 Feehheimer v. Banm, 37 Fed. R. 167 10 
 Feeny, In re, 1 Hask. 304; 4 N. B. 
 
 R. 70 505 
 
 Feistel v. King's College, 10 Beav. 491 356 
 Felix v. Scharnweber, 125 U. S. 54 25 
 Fellows v. Hall, 3 McL. 281 109 
 
 Fenemore v. United States, 3 Dall. 
 
 357 540 
 Fenn v. Holme, 21 How. 481 5, 6 
 Fenton v. Hughes, 7 Ves. 287 82, 83 
 v. Lumberman's Bank, Clarke 
 
 (N. Y.), 360 378 
 
 Fenwick v. Sears, 1 Cranch, 259 68 
 
 Ferguson v. Dent, 15 Fed. It. 771 79, 288, 
 
 289 
 
 v. O'Harra, Pet. C C. 493 203, 208 
 
 v. Ross, 38 Fed. R. 161 589, 590 
 
 Ferrand v. Hamer, 4 M. & Cr. 143 338 
 Ferrens, Re, 3 Ben. 442 545 
 
 Ferrers v. Cherry, 1 Eq. Cas. Abr. 3 260 
 Ferrett v. Atwill, 4 N. Y. Leg. Obs. 
 
 215 551 
 
 Fidelity Ins. Co. v. Huntington, 117 
 
 U. S. 280 571 
 
 Fidelity Trust Co. v. Gill Car Co., 25 
 
 Fed. R. 737 586 
 
 Field v. Holland, 6 Cranch, 8 396, 447, 
 
 448 
 540 
 479 
 
 Ch. 
 
 246 
 
 139, 247 
 
 v. Milton, 3 Cranch, 514 
 
 v. Schell, 4 Blatchf. 435 
 
 v. Schieffelin, 7 Johns. 
 
 (N. Y.) 250 
 Fife v. Clayton, 13 Ves. 546 
 Fifth Nat. Bank v. Long, 7 Biss. 502 69 
 Filder v. London, B. & S. C. Ry., 1 
 
 Hem. & M. 489 299 
 
 Filli v. Delaware, L. & W. R. R. Co., 
 
 37 Fed. R. 65 30, 153, 154 
 Finch v. Finch, 2 Ves. Sen. 492 4 
 v. Lord Winchelsea, 1 Eq. Cas. 
 
 Abr. 2 257, 258, 262 
 
 Findlay v. Hinde, 1 Pet. 241 142, 176, 
 
 178 °24 
 F'ingal (Earl of) v. Blake, 2 Moll. 50 '343 
 Fingal (Lord) v. Blake, 1 Moll. 113 448 
 Fink v. Patterson, 21 Fed. R. 602 13. 90 
 Finley v. Aiken, 1 Grant (Pa.), 83 319 
 First Nat. Bank v. Douglass County, 
 
 3 Dill. 298 16 
 
 v. Kidd, 20 Minn. 234 399 
 
 v. Rerlick, 110 U. S. 224 595 
 
 v. Smith, 6 Fed. R. 215 101 
 
 First Nat. Ins. Co. v. Salisbury, 130 
 
 Mass. 303 290 
 Fischer v. Hayes, 6 Fed. R. 63 505, 506 
 v. , 6 Fed. R. 76 ; 19 Blatchf. 
 
 26 232 
 
 v. , 16 Fed. R. 469 461, 462 
 
 v. , 22 Fed. R. 92 455 
 
 v. O'Shaughnessey, 6 Fed. R. 92 178 
 
 Fisher v. Boody, 1 Curt. 206 119, 478 
 
 r. Lord, 6 West. L. J. 137 337 
 
 v. Mee, 3 Meriv. 45 439 
 
 v. Owen, L. R. 8 Ch. D. 645 216 
 
 v. Rutherford, Baldw. 188 239, 255 
 
 Fishmongers' Co. v. East India Co., 
 
 1 Dick. 163 307 
 
 Fisk, Ex parte, 113 U. S. 713 395, 507, 
 
 542, 544,552, 589 
 
 v. Ilenarie, 32 Fed. R., 417 577, 578, 
 
 579, 580
 
 xl 
 
 TABLE OF CASES. 
 [References are to pages.] 
 
 Fisk v. Henarie, 35 Fed. R. 230 
 
 v. Union Pacific R. R. Co., 
 
 Blatchf. 3(52 
 
 v. , 10 Blatchf. 518 
 
 Fitch v. Chapman, 2 Situ. & S. 31 
 v. Creighton, 24 How. 159 
 
 578 
 
 6 
 574 
 303 
 201 
 
 9, 10, 
 
 125, 558 
 
 v. Rochfort, 18 L. J. Ch. 458 337 
 
 Fitton v. Earl of Macclesfield, 1 Vern. 
 
 287 476 
 
 Fitzpatrick v. Domingo, 14 Fed. R. 
 
 216 258, 261 
 
 Flack v. Holm, 1 Jac. & W. 405 390 
 
 Flamang's Case, 7 Ves. 305 309 
 
 Flanders v. Seelve, 105 U. S. 718 504 
 
 Flash v. Dillon, 22 Fed. R. 1 29 
 
 v. Wilkerson, 22 Fed. R. 689 10 
 
 Fleming, Ex parte, 2 Wall. 759 537 
 
 Fletcher, Ex parte, 6 Ves. 427 379, 380 
 
 v. Bealey, 33 W. R. 745 475 
 
 v. Hamlet, 116 U. S. 408 568, 575 
 
 v. Morey, 2 Story, 555 
 
 v. New Orleans N. E. It. R. Co., 
 
 20 Fed. R. 345 
 Flint v. Russell, 5 Dill. 151 
 Flippin, Ex parte, 94 U. S. 348 
 Florence S. M. Co. v. Grover & B. S. 
 
 M. Co., 110 Mass. 1 
 v. Singer Manuf. Co., 8 Blatchf. 
 
 113 ; 4 Fisher's Pat. Cas. 329 
 Florida v. Georgia, 17 How. 478 
 Fogg v. St. Louis, H. & K. R. R 
 
 17 Fed. It. 871 
 Foley v. Hill, 3 M. & Cr. 476 
 Foil's Appeal, 91 Pa. St. 434 
 
 306 
 121 
 535 
 
 337 
 
 99 
 
 77, 109 
 
 Co., 
 
 10, 197 
 
 204 
 
 13, 19, 
 
 324 
 
 284 
 
 315 
 
 6 
 
 Fourniquet i\ Perkins, 16 How. 82 
 Fourth Nat. Bank v. Stout, 113 U. S 
 
 684 
 Fowle v . Lawrason, 5 Pet. 494 
 
 0. Spear, 7 Penn. L. J. 176 
 
 Fowler, In re, 4 Fed. R. 303 
 
 v. Lindsey, 3 Dall 411 
 
 v. Merrill, 11 How. 375 
 
 442 
 
 Folland 0. Lamotte, 10 Sim. 486 
 Folsom 0. Marsh, 2 Story, 100 
 Fontain v. Ravenel, 17 How. 369 
 Foote v. Cunard Min. Co , 17 Fed. R. 
 
 46 128 
 
 Forbes 0. Memphis, E. P. & P. R. R. 
 
 Co., 2 Woods, 323 88, 252, 290, 291 
 
 Ford 0. Douglas, 5 How. 143 211, 217, 
 
 246, 247 
 Forgay 0. Conrad, 6 How. 201 295, 466, 
 
 467, 599 
 Forrest 0. Manchester, S. & L. Ry. 
 
 Co., 4 De G. F. & J. 126 299 
 
 Forsyth v. Pierson, 9 Fed. R. 801 159 
 
 0. United States. How 571 567 
 
 Fosdick v. Car Co., 99 U. S. 256 349, 351, 
 
 352 
 
 v. Schall, 99 U. S. 235 138, 347, 349, 
 
 350, 351 
 Foss 0. First Nat. Bank, 1 McCra. 
 
 474 252 
 
 Foster 0. Deacon, Madd. & Geld. 59 
 
 270 
 
 0. Goddard, 1 Black, 506 
 
 0. Lindsay, 3 Dill. 126 200 
 
 0. Moore, 1 Curt. 279 312 
 
 • v. Swasey, 2 Woodh. & M , 217 
 
 462 
 248, 
 475 
 333 
 499 
 
 596 
 
 14 
 
 318 
 
 544 
 
 540 
 
 428, 429 
 
 430, 431 
 
 470 
 
 499 
 
 66 
 
 v. Wyatt, 24 Beav. 232 
 
 Fox v. Blew, 5 Madd. 147 
 
 v. Suwerkrop, 1 Beav. 583 
 
 Foxwell 0. Webster, 10 Jur. n. s. 137 
 
 123 
 
 Francis 0. Flinn, 118 U. S. 385 17, 18 
 
 Franco 0. Franco, 3 Ves. 76 87 
 
 Frank v. Denver & R. G. Ry. Co. 23 
 
 Fed. R. 123 351, 352 
 
 v. , 23 Fed. R. 757 368, 379 
 
 Frankle 0. Jackson, 30 Fed. R. 398 369 
 Franklin 0. Hersch, 3 Tenn. Ch 467 - 
 Fraser 0. Jennison, 106 U. S. 191 
 
 568, 
 570 
 337 
 322 
 322 
 550 
 587 
 28, 111 
 4 
 
 0. Whalley, 2 Hem. & M. 10 
 
 Frayser 0. Russell, 3 Hughes, 227 
 Frearson v. Loe, L. R. 9 Ch. D. 48 
 Freeman, In re, 2 Curt. 491 
 
 0. Butler, 39 Fed. R. 1 
 
 v. Howe, 24 How. 450 
 
 0. Pontrell, Chan. Cal. XIII. 
 
 Freidlander 0. Pollock, 5 Coldw. 
 
 (Tenn ) 490 161 
 
 Frelinghuysen v. Baldwin, 19 Fed. R. 
 
 49 5"9 
 
 Fremont v. Merced Min. Co., 1 Mc- 
 
 AU. 267 327 
 
 French, Ex parte, 100 U. S 1 606 
 
 v. Brewer, 3 Wall. Jr. 346 333 
 
 v. Dear, 5 Ves. 547 141 
 
 0. Gapen, 105 U. S. 509 291, 292 
 
 0. Hay, 22 Wall. 250 303 
 
 0. Rainey, 2 Tenn. Ch. 640 219 
 
 0. Roe, 13 Ves. 593 157 
 
 0. Shoemaker, 12 Wall. 86 467 
 
 0. , 14 Wall. 314 99, 119, 212 
 
 Frerichs v. Coster, 22 Fed. R. 637 564 
 Fretz v. Stover, 22 Wall. 198 232, 265 
 Frevall 0. Bache, 5 Cranch C. C. 463 
 
 428, 431 
 Friedman v. Israel, 26 Fed. R. 801 588 
 Friend 0. Wise, 111 U. S. 797 596 
 
 Friezen 0. Allemania F. I. Co., 30 Fed. 
 
 R. 349 586 
 
 Frost 0. Spitley, 121 U. S. 552 15, 16 
 
 169 
 
 Frow 0. De la Vega, 15 Wall. 552 
 Frowd v. Lawrence, 1 Jac. & W. 655 
 
 328 
 417 
 275 
 84 
 449 
 
 v. Vassall, 3 Atk. 587 193, 194, 201 
 
 Fry 0. Penn, 2 Bro. C. C. 280 
 
 0. Quinlan, 13 Blatchf. 205 
 
 Fulham 0. McCarthy, 1 H. L. C. 703 
 Fullagar v. Clark, 18 Ves. 481 
 Fuller 0. Metropolitan L. I. Co., 37 
 
 Fed. R. 163 25, 438 
 
 Fulton v. Rosevelt, 1 Paige (N. Y.), 
 
 178 6 5
 
 TABLE OF CASES. 
 [References are to pages.] 
 
 xli 
 
 Fulton Bank v. Beach, 2 Paige (N. Y. ), 
 307 223, 
 
 v. New York & S. Canal Co., 4 
 
 Paige (N. Y.), 127 
 Furbush v. Bradford, 1 Fisher Pat. 
 
 Cas. 317 
 Furlong v. Edwards, 3 Md. 99 
 Furman v. Nichol, 8 Wall. 44 
 Furtado v. Furtado, 6 Jur. 227 
 Fussell v. Gregg, 113 U. S. 550 
 
 G. 
 
 Gaffney v. Gillette, 4 Dill. 264, w.- 
 Gage v. Kellogg, 26 Fed. R. 542 
 
 v. Pumpelly, 115 U. S. 454 
 
 Gaines v. Agneliy, 1 Woods, 238 
 v. Chew, 2 How. 619 118, 124, 
 
 v. Fuentes, 92 U. S. 10 9, 29, 
 
 444, 527, 
 
 v. Mausseaux, 1 Woods, 118 
 
 v. New Orleans, 17 Fed. R. 16; 
 
 4 Woods, 213 
 
 v. Relf, 15 Pet. 9 
 
 Gait v. Osbaldeston, 1 Russ. 158 
 Galena v. Amy, 5 Wall. 705 
 Gallagher's Ex'rs v. Roberts, 1 Wash. 
 
 320 
 Galpin v. Page, 18 Wall. 350 
 Galton v. Hancock, 2 Atk. 425 
 Galveston Railroad v. Cowdrey, 11 
 
 Wall. 459 88, 89, 90, 
 
 Gamber v. Atlee, 2 De G. & Sm. 745 
 Gamewell F. A. Tel. Co. v. City of 
 
 Chillicothe, 7 Fed. R. 351 125, 
 v. Mayor, &c, of N. Y., 31 Fed. 
 
 R. 312 
 Gandy v. Marble, 122 U. S. 432 130, 
 Garcias v. Ricardo, 14 Sim. 265 
 Gardiner v. Mason, 4 Bro. C. C. 478 
 
 v. Rowe, 4 Madd. 236 
 
 Gardner v. Blane, 1 Hare, 381 
 
 v. Gardner, 87 N. Y. 14 294, 
 
 v. London, C. & D. Ry. Co., L. 
 
 R. 2 Ch. App. 201 
 
 v. Ogden, 22 N. Y. 327 2. 
 
 Garland v. Garland, 2 Vts. Jr. 137 
 
 Garneau v. Dozier, 100 U. S. 7 
 Garrett v. City of Memphis, 5 Fed. 
 
 R. 860 
 v. Woodward, 2 Cranch C. C. 
 
 190 
 Garth v. Cotton, 1 Dick. 183; 1 Lea. 
 
 Cas. in Eq. (6th ed.) 806 306, 
 
 Gason v. Wordsworth, 2 Ves. Sen. 
 
 336 
 Gass v. Stinson, 3 Sumner, 98 
 Gause v. Perkins, 3 Jones' Eq. (N. C.) 
 
 177 
 
 225 
 
 273 
 
 339 
 
 387 
 
 615 
 
 66, 285 
 
 15 
 
 567 
 514 
 139 
 231 
 127, 
 137 
 443, 
 557 
 188 
 
 14 
 535 
 
 418 
 536 
 
 206 
 
 543 
 
 4 
 
 291 
 64 
 
 131 
 
 9 
 133 
 
 199 
 
 156 
 449 
 380 
 341 
 
 357 
 408 
 379, 
 380 
 607 
 
 357 
 
 424 
 
 307 
 
 433 
 430 
 
 309 
 
 Gavin v. Vance, 33 Fed. R. 84 30, 570, 
 
 575 
 616 
 
 Gay v. Parpart, 101 U. S. 391 
 Gaylord v. Fort Wayne, M. & C. R. 
 
 R. Co., 6 Biss. 286 
 Gaylords v. Kelshaw, 1 Wall. 81 99, 
 Gee v. Pritchard, 2 Swanst. 402 
 Geldard v. Hornby, 1 Hare, 251 
 Gelpcke v. Dubuque, 1 Wall. 175 
 
 Gelston v. Hoyt, 3 Wheat. 240 
 Georgetown v. Alexandria Canal Co., 
 
 12 Pet. 91 
 Georgia v. Atlantic & G. R. R. Co., 
 
 3 Woods, 434 
 
 v. Brailsford, 2 Dall. 402 
 
 v. Grant, 6 Wall. 241 77, 150, 
 
 v. Stanton, 6 Wall. 50 16,77, 
 
 137, 
 Georgia (Governor of) v. Madrazo, 1 
 
 Pet. 124 
 Germain v- Mason, 12 Wall. 259 
 Gernon v. Boecaline, 2 Wash. 130 
 
 393 
 
 v. ,2 Wash. 199 
 
 Geyger v. Geyger, 2 Dall. 332 
 Giant Powder Co. v. California V. P. 
 
 Co., 5 Fed. R. 197 514,515, 
 v. Safety N. P. Co., 19 Fed. R. 
 
 509 188, 
 Gibbins v. Mainwaring, 9 Sim. 77 
 Gibbons & Ogden, 6 Wheat. 448 
 Gibbs v. Clagett,2 Gill & J. (Md.) 14 
 v. David, L. R. 20 Eq. 373 347, 
 
 Gibson v. Bruce, 108 U. S. 561 
 
 v. Chouteau, 13 Wall. 92 
 
 v. Lewis, 11 Phila. (Pa.) 476 
 
 -v. Martin, 8 Paige (N. Y.),481 
 
 v. Shufeldt, 122 U. S. 27 24, 
 
 Gibson v. Smith, 2 Atk. 182 
 
 v. Van Dresar, 1 Blatchf. 532 
 
 v. Whitehead, 4 Madd. 241 
 
 Gier v. Gregg, 4 McL. 202 227, 
 
 Gilbert v. Endean, L. R. 9 Ch. D. 259 
 
 v. Gilbert, 2 Paige (N. Y.), 603 
 
 v. Lewis, 1 De G. J. & S. 38 
 
 Gilbert & 15. Manuf. Co. v. Bussing, 
 
 12 Blatchf. 426 
 Gillespie v. Moon, 2 Johns. Ch. (N. Y.) 
 
 585 
 Gillet v. Moody, 3 N. Y. 479 
 Gihnan v. Perkins, 7 Fed. R. 887 
 Gilpins v. Consequa, Pet. C. C. 85 ; 3 
 
 Wash. 184 429, 430, 
 
 Gindrat v. Dane, 4 Cliff. 200 
 Gintcr v. Kinney Tobacco Co., 12 
 
 Fed. R. 782 
 Gist v. Davis, 2 Hill Ch. (S. C.) 335 
 Gittings v. Crawford, Taney's Dec. 1 
 Gladdonw. Stoneman, 1 Madd. 143, n. 
 Glassington v. Thwaites, 2 Russ. 458 
 
 19 
 446 
 298 
 472 
 444, 
 558 
 614 
 
 308 
 
 372 
 20 
 
 537 
 78, 
 
 321 
 
 76 
 599 
 389, 
 394 
 209 
 553 
 
 516 
 
 242 
 378 
 614 
 126 
 373, 
 379 
 573 
 197 
 306 
 378 
 596, 
 597 
 332 
 333 
 188 
 241 
 522, 
 527 
 499 
 116 
 
 333 
 
 125 
 
 370 
 
 11 
 
 431 
 
 13 
 
 318 
 
 199 
 
 5 
 
 343 
 
 225, 
 228
 
 xlii 
 
 TABLE OF CASES. 
 [References are to pages.] 
 
 Glazbrook t\ Gillatt, 9 Bcav. 492 292 
 
 Glegg v. Legh, 4 Madd. 193 173, 177, 
 
 186, 242 
 
 Glen v. Gibson, 9 Barb. (N. Y.) G34 
 Glenn i\ Soule, 22 Fed. E. 417 
 
 v. Sumner, 132 U. S. 152 
 
 Glossop v. Harrison, G. Cooper, 61; 
 
 3 Ves. & B. l:J4 
 Gloucester Ferry Co. v. Pennsylvania, 
 
 114 II. S. 196 
 Gloucester Ins. Co. v. Younger, 2 
 
 Curt. 322 
 Glyn v. Soares, 1 Y. & C. 644 
 Glynn v. Houston, 1 Keen, 329 
 Godbolt v. Watts, 2 Anst. 543 
 Goddard v. Wilde, 17 Fed. R. 845 
 Godden v. Kimmell, 99 U. S. 201 
 
 468 
 370 
 556 
 
 383 
 
 570 
 
 611 
 82 
 417 
 139 
 319 
 10, 176, 
 197 
 
 Godfrey v. Terry, 97 U. S. 171 174 
 
 Gold W. & W. Co. v. Keyes, 96 U. S. 
 
 199 572, 573 
 
 Gold & Silver O. S. Co. v. United 
 
 States D. O. Co., 6 Blatcbf. 307 218 
 Gold & Stock Tel. Co. v. Fearce, 19 
 
 Fed. R. 419 196 
 
 Goldsmith v. Gilliland, 22 Fed. R. 
 
 865 132, 176 
 
 Goldstein v. New Orleans, 38 Fed. R. 
 
 626 586 
 
 Good v. Blew itt, 13 Ves. 397 90, 239 
 
 Good Hope Co. v. Railway B. F. Co., 
 
 22 Fed. R. 635 154 
 
 Goodman v. Whitcomb, 1 Jac. & W. 
 
 589 343, 378 
 
 Goodrich v. Pendleton, 3 Johns. Ch. 
 (N. Y.) 520 499 
 
 v. United States, 35 Fed. R. 193 485 
 
 Goodwin v. Fox, 129 U. S. 601 411 
 
 Goodyear v. Bourn, 3 Blatchf. 266 237 
 
 v. Chaffee, 3 Blatchf. 268 162 
 
 v. Mullee, 3 Fisher's Pat. Cas. 
 
 420 332 
 
 v. Providence Rubber Co., 2 
 
 Cliff. 351 ; 2 Fisher's Pat. Cas. 499 447, 
 
 449 
 
 v. Sawyer, 17 Fed R. 2 482 
 
 v. Toby, 6 Blatchf. 130 196, 202, 
 
 206 
 Goodyear D. V. Co. v. Folsom, 3 Fed. 
 R. 509 293, 329 
 
 v. Osgood, 2 Bann. & A. Pat. Cas. 
 
 529 ; 13 Off. Gaz. 325 482 
 
 Gordon, Ex parte, 1 Black, 503 533, 598 
 
 v. Calvert, 2 Sim. 253 
 
 v. Cheltenham Ry. Co., 5 Beav. 
 
 229 
 
 Gilfoil, 99 U. S. 108 
 — v. Gordon, 3 Swanst. 400 
 
 v. Hobart, 2 Sumner, 401 
 
 v. , 2 Story, 243 
 
 v, St. Paul Harvester Works, 23 
 
 Fed. R. 147 
 
 Gorham v. Gorham, 3 Barb. Ch. 
 (X. r.) 24 
 
 Gorse v. Parker, 36 Fed. R. 840 
 
 333 
 
 194 
 
 114, 474 
 
 6,8 
 
 454 
 
 184 
 
 67 
 
 482 
 
 463 
 3 
 
 76 
 
 228, 229 
 212 
 193 
 536 
 475 
 5,390 
 C. 
 171 
 
 Gottfried v. Crescent Brewing Co., 22 
 
 Fed. R. 433 
 Gould v. Okeden, 4 Bro. P. C. 198 
 Governor of Georgia v. Madrazo, 1 
 
 Pet. 124 
 Grace v. American Cent. Ins. Co., 109 
 
 U. S. 278 437, 572 
 Graffam v. Burgess, 117 U. S. 180 238 
 Graham, Ex part,-, 10 Wall. 511 533 
 v. Boston, H. & E. R. R. Co., 
 
 118 U. S. 161 27 
 
 v. Coape, 9 Sim. 93 228, 229 
 
 v. , 3 M. & Cr. 638 
 
 v. Mason, 4 Cliff. 88 
 
 v. Meyer, 4 Blatchf. 129 
 
 v. Norton, 15 Wall. 427 
 
 v. Railroad Co., 3 Wall. 704 
 
 v. Stucken, 4 Blatchf. 50 
 
 Grahame v. Cooke, 1 Cranch C. 
 
 116 
 Grand Chute v. Winegar, 15 Wall. 
 
 373 7, 18 
 
 Grant v. Grant, 3 Russ. 598 393 
 
 t ,. ( 5 Uuss. 189 394 
 
 v. Henry Clay Coal Co., 80 Pa. 
 
 St. 208 405 
 v. Phoenix L. I. Co., 121 U. S. 
 
 105 123, 208 
 
 v. Raymond, 6 Pet. 218 214, 597 
 
 Grattan v. Appleton, 3 Story, 755 478, 
 
 479 
 Graves v. Boston M. I. Co., 2 Cranch, 
 
 419 
 Gray v. Brignardello, 1 Wall. 627 
 
 v. Campbell, 1 Russ. & M. 323 
 
 v. Chaplin, 2 Sim. & S. 267 89 
 
 v. Chicago, I. & N. R. R. Co., 1 
 
 Woolw. 63 280, 281, 283, 294, 330, 
 
 505 
 
 v. Haig, 13 Beav. 65 253 
 
 v. Howe, 108 U. S. 12 591, 592 
 
 v. James, Pet. C. C. 394 214 
 
 v. Larrimore, 2 Abb. C. C. 542 99 
 
 v. Munroe, 1 McL. 528 
 
 Grayson v. Virginia, 3 Dall. 320 
 Greatrex v. Greatrex, 1 De G. & Sm. 
 
 692 
 Greeley v. Smith, 3 Storv, 658 
 Green v. Barney, 19 Fed. R. 420 
 
 v. Custard, 23 How. 484 
 
 v. French, 5 N. J. L. J. 228 
 
 v. Hanberry, 2 Brock. 403 
 
 v. United States, 9 Wall. 655 
 
 v. Watkins, 6 Wheat. 260 
 
 v. Winter, 1 Johns. Ch. (N. Y.) 
 
 359, 369 
 Greene v. Bishop, 1 Cliff. 186 315, 462 
 
 v. Darling, 5 Mason, 201 4 
 
 v. Sisson, 2 Curt. 171 87, 96, 104 
 
 Greene Countv v. Daniel, 102 U. S. 
 
 187 " 636 
 
 Greenleaf v. Queen, 1 Pet. 138 269 
 
 Greenlee v. McDowell, 4 Ired. Eq. 
 
 (N. C.i 481 520 
 
 Greenough v. Gaskell, 1 M. & K. 100 177 
 
 17 
 474 
 
 237 
 
 550 
 153 
 
 325 
 256 
 197 
 
 587 
 483 
 306 
 410 
 554 
 
 60
 
 TABLE OF CASES. 
 [References are to pages] 
 
 xliii 
 
 Greenwalt v. Duncan, 16 Fed. R. 35 132, 
 
 251, 252 
 Greenwood v. Atkinson, 5 Sim. 41 ( J 272 
 
 v. Churchill, 1 M. & K. 559 126 
 
 v. Freight Co., 105 U. S. 13 20, 128 
 
 Gregor v. Molesworth, 2 Ves. Sen. 
 
 109 
 Gregory v. Hartley, 113 U. S. 742 
 
 v. McVeigh, 23 Wall. 294 
 
 v. Molesworth, 3 Atk. 026 
 
 Gregson v. Oswald, 1 Cox Eq. 313 
 
 519 
 579 
 614 
 471 
 257, 
 258 
 Grenfell v. Dean of Windsor, 2 Beav. 
 
 544 387 
 
 Gresley r. Mousley, 4 De G. & J. 78 475 
 Grew v. Breed, 12 Met. (Mass.) 369 268 
 Gridley o. Wynant, 23 How. 500 ' 87, 96 
 Griffin, The, 4 Blatchf. 203 429 
 
 v. Merrill, 10 Md. 364 123 
 
 Griffing v. Gibb, 2 Black, 519 198 
 
 Griffith y. Griffith, 2 Ves. Sen. 400 382 
 Grimes v. French, 2 Atk. 141 136 
 
 Grisar v. McDowell, 6 Wall. 363 73 
 
 Griswold v. Hill, 1 Paine, 483 257, 261, 
 264, 473, 474 
 Groom v. Chambers, 2 Mont. & A. 
 
 742 450 
 
 Gross v. United States Mortgage Co., 
 
 108 U. S. 477 615 
 
 Gross & P. Manuf. Co. v. Gerhard, 8 
 
 Reporter, 130 498 
 
 Grote v. Bury, 1 W. R 92 379 
 
 Grubb v. Clayton, 2 Havw. (N. C.) 
 
 378 199 
 
 Grundy v. Young, 2 Cranch C. C. 
 
 114 340 
 
 Guilbert v. Hawles, 1 Ch. Cas. 40 435 
 Gumbel v. Pitkin. 113 U. S. 545 610 
 
 v. 124 U. S. 131 28 
 
 Gunnell v. Bird, 10 Wall. 304 265 
 
 Gunther v. Liverpool, L. & G. Ins. 
 
 Co., 10 Fed. R. 830 494 
 
 Gupp v. Brown, 4 Dall. 410 429 
 
 Guy v. Guy, 2 Beav. 460 66, 285 
 
 Guyot v. Hilton, 32 Fed. R. 743 398, 552 
 
 Hale v. Continental L. I. Co., 12 Fed 
 R. 359 
 
 v. , 16 Fed. R. 718 
 
 v. , 20 Fed. R. 344 
 
 v. Frost, 99 U. S. 389 
 
 162 
 220 
 164, 220 
 349, 350, 
 351 
 
 H. 
 
 Hack v. Chicago & G. S. Ry. Co., 23 
 
 Fed. R. 356 571 
 
 Haff v. Spicer, 3 Caines (N. Y. ), 190 408 
 Hagan v. Lucas, 10 Pet. 400 11 
 
 v. Walker, 14 How. 29 83 
 
 Hagood v. Southern, 117 U. S. 52 72, 76 
 Haight v. Proprs. of Morris Aqueduct, 
 
 4 Wash. 601 223, 406 
 
 Haines v. Carpenter, 1 Woods, 262 123 
 
 v. ,91 U. S. 254 303 
 
 v. McLaughlin. 29 Fed. R. 70 491 
 
 Hake v. Brown, 37 Fed. R. 783 470 
 
 Hakes v. Burns, 40 Fed. R. 33 571, 578 
 Halilerman v. Halderman, Hempst. 
 407 185 
 
 Hales v. Sutton, 1 Dick. 26 
 
 Hall v. Hoddesdon, 2 P. Wms. 162 
 
 v. Maltbv, (J Price, 240 
 
 v. Union Pacific R. R. Co., 3 
 
 Dill. 515 
 Hallett v. Hallett, 2 Paige (N. Y.), 15 
 
 v. , 2 Paige (N. Y.), 432 
 
 v. Sutton, 12 Sim. 145, n. 
 
 Halsey v. Brotherhood, 45 L. T. n. s. 
 
 640 
 
 v. Carter, 6 Rob. (N. Y.) 535 
 
 Haly v. Goodson, 2 Meriv. 77 
 Haniersley v. Lambert, 2 Johns. Ch. 
 
 (N. Y.) 508 
 Hamilton v. Accessory Transit Co., 
 
 26 Barb. (N. Y.) 46 
 
 v. Brewster, 2 Moll. 407 
 
 v. Chouteau, 6 Fed. R. 339 
 
 v. Nevada G. & S. M. Co., 33 
 
 Fed. R. 502 243 
 
 v. Walsh, 23 Fed. R. 420 303 
 
 Hammacher v. Wilson, 32 Fed. R. 796 460 
 llanimerschlag Manuf. Co. v. Judd, 
 
 26 Fed. R. 292 
 Hammock v. Loan & Trust Co., 105 
 
 U. S. 77 
 Hammond v. Cleaveland, 23 Fed. R. 1 
 Hancock v. Walsh, 3 Woods, 351 
 Handford v. Storie, 2 Sim. & S. 196 
 
 155 
 415 
 117 
 
 537 
 
 88 
 
 290 
 
 155 
 
 324 
 283 
 306 
 
 64 
 
 345 
 
 382 
 
 11 
 
 406 
 
 473 
 
 34 
 
 98 
 
 89, 
 
 434 
 
 Handy v. Cleveland & M. R. R. Co., 
 31 Fed. R, 689 374,385,386 
 
 Hannah v. Hodgson, 30 Beav. 19 
 Hannewinkle v. Georgetown, 15 Wall. 
 
 548 
 Hanover Nat. Bank v. Smith, 13 
 
 Blatchf. 224 
 Hanrick v. Patrick, 119 U. S. 156 
 Hans v. Louisiana, 24 Fed. R. 55 
 Hanson v. Gardiner, 7 Ves. 305 309, 
 Hapgood v. Hewitt, 119 U. S. 226 
 Hardcastle v. Smithson, 3 Atk. 246 
 Hardeman v. Harris, 7 How. 726 
 Hardenberg v. Ray, 33 Fed. R. 812 
 
 Hardin v. Boyd, 113 U. S. 756 
 
 Harding, Ex parte, 120 U. S. 782 
 v. Handy, 11 Wheat. 103 
 
 253 
 
 16 
 
 570 
 599 
 
 77 
 
 18 
 
 91 
 
 218 
 
 30 
 
 118, 234. 
 
 237, 238 
 
 543 
 
 81, 447, 
 
 462 
 
 139 
 
 497 
 
 v. Pingey, 10 Jur. n. s. 872 
 
 Hare v. Rose, 2 Ves. Sen. 558 
 Hargrave v. Hargrave, 8 Beav. 289 450 
 llarkness v. Hyde, 98 U. S. 47U 102 
 
 Harland v. Bankers' & M. Tel. Co.. 32 
 
 F\;d. R. 305 178, 478 
 
 v. , 3:5 Fed. R. 199 8139 
 
 v. United Lines Tel. Co., 40 Fed. 
 
 R. 308 549 
 
 Barman v, Junes, Cr. & Ph. 299 3U'J
 
 xliv 
 
 TABLE OF CASES. 
 [References are to pages.] 
 
 Harmon, Ex parte, 131 U. S., App. 
 
 LXVIL 
 Harpending ^.Reformed P.D. Church, 
 
 16 Pet. 455 
 Harper v. Hill, 35 Miss. 63 
 Harris v. Barber, 129 U. S. 36(5 540, 
 v. Delaware, L., & W. R. R. Co., 
 
 18 Fed. R. 833 
 
 v. Bollard, 3 P. Wms. 348 
 
 v. Elliott, 10 Pet. 25 
 
 v. Hess, 10 Fed. R. 263 
 
 v. Johnston, 3 Craneh, 311 
 
 v. Wall, 7 How. 693 424, 425, 427 
 
 Harrison v. Hogg, 2 Ves. Jr. 323 133, 
 
 181 
 
 v. Nixon, 9 Pet. 483 
 
 v. Rowan, 4 Wash. 202 
 
 537 
 
 197 
 116 
 596 
 
 264 
 
 597 
 
 530 
 
 84 
 
 114 
 
 13, 67, 79, 
 
 87, 106 
 
 437 
 
 545 
 539 
 
 369 
 
 281 
 
 v. Urann, 1 Story, 64 
 
 Harrison's Case, 1 Craneh C. C. 159 
 Harshman i». Knox County, 122 U. S. 
 
 306 
 Hart v. Barney & S. Manuf. Co., 7 
 
 Fed. R. 543 
 
 v. Small, 4 Paige (N. Y.), 551 
 
 Hartell v. Tilghman, 99 U. S. 547 25, 446 
 Harter v. Kernoehan, 103 U. S. 562 26, 
 
 95, 100 
 Hartland v. Dancocks, 5 De G. & Sm. 
 
 561 450 
 
 Hartman v. Greenhow, 102 U. S. 672 614 
 Hartog v. Memory, 116 U. S. 588 436, 
 
 437, 438 
 Hartwell v. Townsend, 6 Bro. P. C. 
 
 107 
 
 519 
 102 
 344 
 
 177 
 
 77 
 
 Harvey v. Cooke, 4 Russ. 35 
 
 v. Lord, 10 Fed. R. 236 
 
 v. Morris, Rep. t. Finch, 214 
 
 v. Virginia, 20 Fed. R. 411 
 
 Harwood v. Railroad Co., 17 Wall. 
 
 78 100, 527 
 
 Hassall v. Wilcox, 115 U. S. 598 596 
 
 v. . 130 U. S. 493 354 
 
 Hatch v. Dana, 101 U. S. 205 98 
 v. Indianapolis & S. R. R. Co., 
 
 9 Fed. R. 856 461, 462 
 
 Hatfield v. Bushnell, 1 Blatchf. 393 554 
 Hathaway v. Roach, 2 Woodb. & M. 
 
 63 477, 492, 493 
 
 v. Scott, 11 Paige (N. Y.), 173 224 
 
 Hat Sweat Manuf. Co. v. Reinoehl, 
 
 102 N. Y. 167 25 
 
 Havemeyer v. Iowa County, 3 Wall. 
 
 294 558, 597 
 
 Hawes v. Bamford, 9 Sim. 653 407 
 
 v. Oakland, 104 U. S.450 20, 128, 299 
 
 Hawke v. Kemp, 3 Beav. 288 285 
 
 Hawkins v. Crook, 2 P. Wms. 556 164, 166 
 
 v. Glenn, 131 U. S. 319 558 
 
 v. Luscombe, 2 Swanst. 375 78 
 
 v. Willbank, 4 Wash. 285 499 
 
 Hawley v. Bennett, 4 Paige (N. Y.), 
 
 163 257 
 v. Donnelly, 8 Paige (N. Y.), 
 
 415 407 
 
 Hax v. Caspar, 31 Fed. R. 499 571 
 
 Hayden v. Androscoggin Mills, 1 Fed. 
 R. 93 154 
 
 v. Oriental Mills, 15 Fed. R. 605 11 
 
 Hayes v. Dayton, 8 Fed. R. 702 125, 130, 
 
 v. Fischer, 102 U. S. 121 
 
 v. Leton, 5 Fed. R. 521 
 
 Hayne v. Hayne, 3 Rep. in Ch. 19 
 Hayward v. Andrews, 106 U. S. 672 
 Hazard v. Credit Mobilier of Amer., 
 
 38 Fed. R. 195 
 v. Durant, 19 Fed. R. 471 
 
 173, 208 
 
 467, 507 
 
 341 
 
 250 
 17 
 
 387 
 68, 96, 
 370 
 516 
 505 
 
 Head v. Godlee, Johnson, 536 
 
 Hearn v. Tenant, 14 Ves. 136 
 
 Heath v. Erie Ry. Co., 8 Blatchf. 347 96, 
 
 97, 98, 173, 174 
 
 v. , 9 Blatchf. 316 4, 8, 156, 250, 
 
 253, 418, 431 
 
 v. Wright, 3 Wall. Jr. 141 318 
 
 Hebert v. Mutual L. I. Co., 12 Fed. 
 
 R. 807 13, 125 
 
 Heckman v. Mackey, 32 Fed. R. 574 289 
 Hefner v. Northwestern L. I. Co., 123 
 
 U. S. 747 84, 126 
 
 Heidecker v. Red Star Line S. S. 
 
 Co., 32 Fed. R. 706 586 
 
 Heidritter v. Elizabeth Oil Cloth Co., 
 
 112 U. S. 294 11, 12 
 
 Heilman v. Union Canal Co., 37 Pa. 
 
 St. 100 309 
 
 Heine v. Levee Comm'rs, 19 Wall- 655 16 
 Hemingway v. Stansell, 106 U. S. 
 
 399 261, 270 
 
 Henderson v. Meggs, 2 Bro. C. C. 127 156 
 Hendrickson v. Chicago, R. I. & P. 
 
 R. R. Co.. 22 Fed. R. 569 586 
 
 Hening v. United States Ins. Co., 2 
 
 Dill. 26 557 
 
 Henley v. Philips, 2 Atk. 48 496, 497 
 
 Henry v. Ricketts, 1 Craneh C. C. 
 
 680 411, 412, 508 
 v. Travelers' Ins. Co., 34 Fed. R. 
 
 258 513 
 
 y. 1 35 Fed. R, 15 41 3 
 
 Henshaw v. Miller, 17 Flow. 212 554 
 
 v. Wells, 9 Humph. (Tenn.) 568 379 
 
 Henthorn v. Doe, 1 Blackf. (Ind.) 157 405 
 Hentig v. Page, 105 U. S. 219 467 
 
 Hepburn v. Auld, 5 Craneh, 262 324 
 
 v. Dunlop, 1 Wheat. 179 324 
 
 v. Ellzey, 2 Craneh, 445 26 
 
 Herbert v. Wren, 7 Craneh, 370 4 
 
 Heriot v. Davis, 2 Woodb. & M. 229 99, 
 
 101 
 Herndon i\ Ridgway, 17 How. 424 145, 156 
 Herrick v. Grand Trunk Ry. Co., 7 
 
 U. C L. J. 240 299, 345 
 Herring ;;. Clobery, Cr. & Ph. 251 516 
 Hervey v. Fitzpatrck, Kay, 421 343 
 v. Illinois Midland Ry. Co., 28 
 
 Fed. R. 169 367 
 v. , U. S. C. C, S. D. 111., 
 
 June 10, 1886 464
 
 TABLE OF CASES. 
 [References are to pages.] 
 
 xlv 
 
 Hervey v. Smith, 1 Kay & J. 389 324 
 
 Hewett v. Norton, 1 Woods, 68 209 
 
 Hewitt v. Filbert, 116 U. S. 142 604 
 
 Heyman v. Uhlman, 34 Fed. 11. 868 163 
 Heyn v. Heyn, Jacob, 49 165, 168, 457 
 
 198 
 382 
 89 
 606 
 309 
 344, 373 
 244 
 
 119 
 
 496 
 
 317, 318 
 
 136 
 
 196 
 371 
 306 
 
 Heys v. Astley, 9 L. T. n. s. 356 
 Hibbert v. Hibbert, 3 Meriv. 681 
 Hichens v. Congreve, 4 Russ. 562 
 Hiekox v. Elliott, 28 Fed. R. 117 
 Hicks v. Compton, 18 Cal. 206 
 
 v. Hicks, 3 Atk. 274 
 
 v. Otto, 17 Fed. R. 539 
 
 v. , 22 Blatchf. 122 515 
 
 v. Raincock, 1 Cox Eq. 40 180 
 
 v. Wrench, Madd. & G. 93 496 
 
 Hickson v. Lombard, L. R. 1 H. L. 
 
 326 
 Hide v. Haywood, 2 Atk. 126 
 Hier v. Abrahams, 82 N. Y. 519 
 Hiern v. Mill, 13 Ves. 118 
 Hi?by v. Columbia Rubber Co., 18 
 
 Fed. R. 601 
 Higgins, In re, 27 Fed. R. 443 
 
 v. Jenks, 3 Ware, 17 
 
 Higinbotham v. Burnet, 5 Johns. Ch. 
 
 (N. Y.) 184 173, 418 
 
 Hildyard v. Cressy, 3 Atk. 303 238 
 
 Hiles v. Case, 14 Fed. R. 141 ; 9 Biss. 
 
 549 352 
 
 v. Moore, 15 Beav. 175 379 
 
 Hill v. Binney, 6 Ves. 738 395 
 
 v. Bonaffon, 2 W. N. C. (Pa.) 356 176 
 
 v. Rimell, 8 Sim. 632 283 
 
 v. Smith, 32 Fed. R. 753 479 
 
 v. Thompson, 3 Meriv. 622 31 1, 312, 
 
 313, 330 
 
 v. United States, 9 How. 386 322 
 
 Hills v. Exchange Bank, 105 U. S. 319 301 
 v. Richmond & D. R. R. Co., 33 
 
 Fed. R. 81 577, 578 
 
 Hilton v. Barrow, 1 Ves. Jr. 284 248 
 
 Himely v. Rose, 5 Cranch, 313 623 
 
 Hinckley v. Gilman, C. & S. R. R. 
 
 Co., 94 U. S. 467 384, 598 
 
 v. Morton, 103 U. S. 764 616 
 
 v. Railroad Co., 100 U. S. 153 372, 
 
 373, 384, 385, 589 
 Hinde v. Morton, 2 Hem. & M. 368 439 
 Hipp v. Babin, 19 How. 271 5, 7, 16 
 
 Hitner v. Suckley, 2 Wash. 465 156 
 
 Hoadley v. San Francisco, 94 U. S. 4 534 
 Hobhouse v. Courtney, 12 Sim. 140 155, 
 
 156 
 Hobson v. McArthur, 16 Pet. 182 270 
 Hodge v. Hudson River R. R. Co., 6 
 
 Blatchf. 85; 3 Fisher's Pat. Cas. 
 
 410 468 
 v. North Mo. R. R. Co., 1 Dill. 
 
 104 174, 175, 181 
 
 Hodges v. Mulliken, 1 Bland (Md.), 
 
 503 476 
 
 v. Smith, 1 Cox Eq. 279 145 
 
 Hodgkin v. Lotigden, 8 Ves. 2 174 
 Hodson v. Ball, 11 Sim. 459 107 
 v. Coppard, 29 Beav. 4 335 
 
 315 
 143 
 
 Hoe v. Boston Daily Advertiser Co., 
 
 14 Fed. R. 914 333 
 
 v. Kahler, 27 Fed. R, 145 607 
 
 v. Wilson, 9 Wall. 501 88, 100, 104, 
 
 105 
 Hoffman v. Duncan, 18 Jur. 69 380, 381 
 
 v. Postill, L. R. 4 Ch. App. 673 227 
 
 Hogg v. Kirby, 8 Ves. 215 
 
 v. Scott, L. R. 18 Eq. 444 
 
 Hoggart v. Cutts, 1 Cr. & Ph. 197 
 Hohorst v. Hamburg Amer. Packet 
 
 Co., 38 Fed. R. 273 30, 153, 154, 162 
 Holbrook v. Worcester Bank, 2 Curt. 
 
 244 
 Holcombe v. Johnson, 27 Minn. 353 
 Holden v. Hearn, 1 Beav. 445 
 Holderness v. Rankin, 2 De G. F. & J 
 
 258 
 Hole v. Barlow, 4 C. B. n. s. 334 
 Hoi ford v. Yate, 1 K. & J. 677 
 Holkirk v. Holkirk, 4 Madd. 50 
 Holladay Case, The, 28 Fed. R. 117 
 Holland v. Challen, 110 U. S. 15 
 Hollen, The, 1 Mason, 431 
 
 216 
 374 
 223 
 
 247 
 308 
 472 
 435 
 606 
 9, 558 
 611 
 Hollingshead's Case, 1 P. Wms. 742 265 
 Hollingsworth v. Duane, Wall. C. C. 
 77 502, 505 
 
 „. __ Wall. C. C. 141 505 
 
 Hollister v. Benedict & B. Manuf. Co., 
 
 113 U. S. 59 69, 322 
 
 Holmes v. Sheridan, 1 Dill. 351 551 
 
 v. Sherwood, 16 Fed. R. 725 ; 3 
 
 McCra. 405 370, 371 
 
 Homan v. Shiel, 2 Jones (Irish), 164 196 
 Home Ins. Co. v. Stanchfield, 1 Dill. 
 
 424 8, 17 
 
 Hone v. Dillon, 29 Fed. R. 465 579 
 
 Hood v. Aston, 1 Russ. 412 305 
 
 v. Clapham, 19 Beav. 90 243 
 
 v. Inman, 4 Johns. Ch. (N. Y.) 
 
 437 115,217 
 
 Hook v. Dorman, 1 Sim. & S. 227 178, 
 
 182 
 
 v. Payne, 14 Wall. 252 _ 104 
 
 Hooper v. Winston, 24 111. 353 384 
 
 Hoover v. Montclair & G. L. R. R. 
 
 Co., 29 N. J. Eq. 4 365, 366 
 
 Hop Bitters Manuf. Co. v. Warner, 
 
 28 Fed. R. 577 513 
 
 Hope v. Hope. 4 De G. M. & G. 328 283 
 Hopkins v. Worcester & B. Canal 
 
 Co., L. R.6Eq. 437 357 
 
 Hopkirk v. Page, 2 Brock. 20 85 
 
 Horn v. Lockhart, 17 Wall. 570 96 
 
 Hornor v. Henning, 93 U. S. 228 8, 98 
 Horsburg v. Baker, 1 Pet. 232 238, 258 
 Horton v. White, 84 N. C. 297 343 
 
 Hottenstein v. Conrad, 9 Kan. 435 377 
 Hough v. Railway Co., 100 U. S. 213 
 
 557 
 Houlditch v. Marquis Donnegall, 1 
 
 Sim. & S. 491 271 
 
 House v. Mullen, 22 Wall. 42 107, 199 
 Houser v. Clayton, 3 Woods, 273 573 
 
 Houston v. Moore, 3 Wheat. 433 614
 
 xlvi 
 
 TABLE OF CASES. 
 [References are to pages.] 
 
 Houston & T. C. R. Co. v. Shirley, 
 
 111 U. S. 358 568, 573, 575 
 
 Hovey v. Stevens, 3 Woodb. & M. 17 477 
 Howard v. Kailway Co., 101 U. S. 
 
 837 96, 511 
 
 v. Rhodes, 1 Keen, 581 496 
 
 Howards v. Selden, 5 Fed. R. 465 4 
 
 Howe v. Deuel, 43 Barb (N. Y.) 504 344 
 
 v. Duppa, 1 Ves. & B. 511 
 
 — — v. Morton, 1 Fisher's Pat. Cas. 
 
 586 
 Howe Machine Co. v. Edwards, 15 
 
 Blatchf. 402 
 Howell v. Lord Coningsby, 1 Fowl. 
 
 Ex. Pr. 161 
 v. Western R. R. Co., 94 U. S. 
 
 463 
 Howland v. Soule, Deady, 413 
 Hoxie v. Carr, 1 Sumner, 173 3, 97, 118, 
 119,257,258, 276 
 Hovle, In re, 12 Chic. L. N. 279 ; 9 
 
 Am. L. Rec. 65 545 
 
 Hoyt, Ex parte, 13 Pet. 279 535, 536 
 
 180 
 
 311 
 
 556 
 
 510 
 
 472 
 322 
 
 v. Hammekin, 14 How. 346 
 
 v. Hovt, 27 N. J. Eq. 399 
 
 Hubbard v. Bellew, 3 Fed. R. 447 
 
 v. Turner, 2 McL. 519 211, 
 
 Hubbell v. DeLand, 14 Fed. R. 471 
 
 431 
 119 
 11 
 252 
 189, 
 200 
 
 v. Warren, 8 Allen, 173 89 
 
 Hmlgins v. Kemp, 18 How. 530 604 
 
 Hudson v. Guestier, 7 Cranch, 1 622 
 
 v. Hudson, 3 Rand. (Va.) 117 251 
 
 v. Maddison, 12 Sim. 416 122, 336 
 
 Huggins v. York Bldg. Co., 2 Atk. 
 
 44 ; 2 Eq. Cas. Abr. 3 195, 259, 271 
 Hugh i'. McRae, Chase's Dec. 466 18, 345 
 Hughes, Ex parte, 114 U. S. 548 495 
 v. Blake, 6 Wheat. 453 209, 210, 
 
 v. , 1 Mason, 515 210 
 
 v. Clerk, 6 Hare, 195 418 
 
 v. Jones, 3 De G. F. & J. 307 446 
 
 -^— v. , 26 Beav. 24 513 
 
 v. Morden College, 1 Ves. Sen. 
 
 188 301, 302 
 
 v. United States, 4 Wall. 232 109 
 
 Huguenin v. Baseley, 15 Ves. 180 4 
 
 Huidekoper v. Locomotive Works, 99 
 
 U. S. 258 349, 351 
 
 Hull v. Dills, 19 Fed. R. 657 8, 11 
 
 Hullett v. King of Spain, 2 Bligh N. 
 
 R. 31 68 
 
 Hulme v. Tenant, 1 Bro. C. C. 16 80 
 
 Humes v. Scruggs, 94 U. S. 22 232 
 
 Hummel v. Moore, 25 Fed. R, 380 586 
 Humphrey, Ex parte, 2 Blatchf. 228 411 
 Humphreys v. Humphreys, 3 P. Wms. 
 
 349 240 
 
 „. , 3 p. Wms. 395 205 
 
 v. Ingledon, 1 P. Wms. 752 132 
 
 v. Roberts, Seton's Decrees (4th 
 
 ed.), 173 335 
 
 v. Tate, 4 Ired. Eq. (N. C ) 220 131 
 
 Humphrys v. Moore, 2 Atk. 108 496, 497 
 
 Hung Hang, Ex parte, 108 U. S. 552 
 Hunt v. Danforth, 2 Curt. 592 
 
 v. Jackson, 5 Blatchf. 349 68, 
 
 v. Lever, 5 Ves. 147 
 
 v. Bousmanier's Adm'rs, 8 
 
 Wheat. 174 
 
 v. , 1 Pet. 1 
 
 v. Wickliffe, 2 Pet. 201 
 
 Hunter v. , 6 Sim. 429 
 
 v. International R. I. Co., 28 
 
 Fed. R. 842 
 
 v. Le Conte, 6 Cow. (N. Y.) 728 
 
 v. Town of Marlboro', 2 
 
 Woodb. & M. 168 
 
 v. United States, 5 Pet. 172 
 
 Huntington v. Palmer, 104 U. S. 482 
 
 v . , 8 Fed. R. 449 
 
 Huntress v. Epsom, 15 Fed. R. 732 
 
 Hurd v. Case, 32 111. 45 
 
 v. Elizabeth, 41 IS'. J. L. 1 G8 
 
 v. Moiles, 28 Fed. R. 897 
 
 Hurlburd v. Freelove, 3 Wis. 537 
 Hurst, Ex parte, 1 Wash. 186 
 Hurt v. Hollingsworth, 100 U. S. 100 
 Huskine v. Cincinnati, N. O. & T. P. 
 Ry. Co., 37 Fed. R. 504 575, 577, 
 
 Hutchinson v. Brock, 11 Mass. 119 
 
 v. Green, 6 Fed. R. 833 
 
 v. Horner, 9 Jur. 615 
 
 Hyde v. Folger, 4 McL. 255 
 
 v. Forster, 1 Dick. 102 
 
 v. , 1 Dick. 132 
 
 v. Ruble, 104 U. S. 407 568, 
 
 v. Woods, 94 U. S. 523 
 
 Hylton v. Morgan, 6 Ves. 293 
 Hyman v. Chales, 12 Fed R. 855 
 
 v. Wheeler, 33 Fed. R. 329 
 
 Hyslop v. Hoppock, 5 Ben. 447 
 
 T. 
 
 Iasigi v. Brown, 1 Curt. 401 553 
 
 Ide v. Ball Engine Co., 31 Fed. R. 
 
 835 250 
 
 Ilchester (Earl of), Ex parte, 7 Ves. 
 
 348 474 
 
 Imperial Refinine; Co. v. Wyman, 38 
 
 Fed. R. 574 530, 590 
 
 India Rubber Comb Co. v. Phelps, 8 
 
 Blatchf. 85 244 
 
 Indiana Southern R. R. Co. v. Liver- 
 pool, L. & G. Ins. Co., 109 U. S. 
 
 168 249 
 
 Indianapolis & St. L. R. R, Co. v. 
 
 Horst, 93 U. S. 291 529, 555, 556, 
 
 557 559 
 Infanta, The, Abb. Adm. 263 ' 430 
 
 Ingham v. Pierce, 37 Fed. R. 647 483 
 
 Ingilby v. Shafto, 33 Beav. 31 417 
 
 541 
 
 13 
 
 370 
 
 283 
 
 3 
 3,4 
 106 
 293 
 
 483 
 409 
 
 477 
 12 
 20, 
 128 
 339 
 
 495, 
 530 
 252 
 
 ,370 
 
 12 
 
 515 
 
 1G0 
 
 585 
 
 578, 
 579 
 64 
 11 
 283 
 101 
 155 
 259 
 
 570, 
 571 
 356 
 326 
 532 
 124 
 152
 
 TABLE OF CASES. 
 [References are to pages.] 
 
 xlvii 
 
 Innes v. Lansing, 7 Paige (N. Y.), 
 
 583 89 
 
 Insurance Co. v. Bailey, 13 Wall. 
 
 616 7, 17 
 
 v. Boon, 95 U. S. 117 555 
 
 v. Brune, 96 U. S. 588 193, 194 
 
 v. Comstock, 16 Wall. 258 534 
 
 v. Dunn, 19 Wall. 214 574 
 
 v. Morse, 20 Wall. 445 570 
 
 Investment Co. v. Ohio & N. W. R. 
 
 Co., 36 Fed. R. 48 366 
 
 Iowa & Minn. Construction Co., In re, 
 
 10 Fed. R. 401 11 
 
 Irons v. Manufacturers' Nat. Bank, 17 
 
 Fed. R. 308 113 
 
 v. 6 Biss. 301 344 
 
 Irwin v. Dixion, 9 How. 10 308 
 
 Isnard v. Cazeaux, 1 Paige (N. Y.), 
 
 39 281 
 
 Ives v. Grand Trunk Ry. Co., 35 Fed. 
 
 R. 176 559 
 
 Ivinson v. Hutton, 98 U. S. 79 14 
 
 J. 
 
 Jacklin v. Wilkins, 6 Beav. 607 
 Jackson, In re, 9 Fed. R 493 
 
 v. Allen, 132 U. S. 27 573, 587, 
 
 v. Ashton, 8 Pet. 148 113, 
 
 v. Cator, 5 Ves. 688 
 
 v. Ivimey, L. R. 1 Eq. 693 
 
 v. Jackson, 2 Hogan, 238 
 
 v. Oglander, 2 Hem. & M. 465 
 
 v. Petrie, 10 Ves. 164 389, 
 
 v. Stiles, 1 Cow. (N. Y.) 134 
 
 v. Strong, 1 McClel. 245 
 
 v. Virgil, 3 Johns. (N. Y.) 540 
 
 Jacobs v. Richards, 18 Beav. 300 
 Jacobson v. Allen, 12 Fed. R. 454 
 
 369, 
 Jacques v. Collins, 2 Blatchf. 23 
 Jaffray, Ex parte, 1 Low. 321 
 Jaff rey v. Brown, 29 Fed. R. 476 463, 
 James v. Atlantic Delaine Co., 3 Cliff. 
 
 614 
 
 v. Campbell, 104 U. S. 356 69, 
 
 Jamieson v. Willis, 1 Cranch C. C. 
 
 566 
 Janeway v. Green, 16 Abb. Pr. (N. Y.) 
 
 215, n. 
 Jarmon v. Wis wall, 9 C. E. Gr. (N. J.) 
 
 68 
 Jarrold v. Houlston, 3 Kay & J. 708 
 Jefferson v. Driver, 117 U. S. 272 
 Jefferson Branch Bank v. Skelly, 1 
 
 Black, 436 
 Jefferys v. Baldwin, Ambl. 164 
 
 v. Smith, 1 Jac. & W. 298 343, 
 
 Jeffries v. Laurie, 27 Fed. R. 195 502 
 Jenkins, Er pari,, 2 Wall. C. C. 521 
 v. Eldredge, 3 Story, 181 117, 
 
 -, 3 Story, 299 
 
 270, 273, 
 516, 
 
 283 
 338 
 590 
 114 
 332 
 436 
 361 
 198 
 392 
 284 
 238 
 408 
 247 
 18, 
 370 
 553 
 497 
 465 
 
 410 
 
 322 
 
 425 
 
 343 
 
 514 
 315 
 
 579 
 
 443 
 174 
 356 
 
 ,504 
 541 
 
 194, 
 397 
 515 
 519 
 
 Jenkins v. Greenwald, 1 Bond, 126 ; 2 
 
 Fisher Pat. Cas. 37 
 v. Smith, 57 How. Pr. (N. Y.) 
 
 171 
 Jenkinson v. Royston, 5 Price, 496 
 Jennings v. Dolan, 29 Fed. R. 861 
 v. Nugent, 1 Molloy, 134 
 
 322 
 
 160 
 211 
 462 
 145, 146, 
 255 
 
 v. Pearce, 1 Ves. Jr. 447 185 
 
 v. Philadelphia & R. R. R. Co., 
 
 23 Fed. R. 509 346, 347 
 
 v. Pierce, 15 Blatchf. 12 213 
 
 v. Simpson, 1 Keen, 404 476 
 
 Jenour v. Jenour, 10 Ves. 562 474, 475 
 Jerman v. Stewart, 12 Fed. R. 271 483, 
 
 495, 498 
 
 Jerome v. Mc Carter, 94 IT. S. 734 83, 84, 
 
 192, 365, 366, 367 
 
 v. , 21 Wall. 17 606 
 
 v. Ross, 7 Johns. Ch. (N. Y.) 315 309 
 
 Jerrard v. Saunders, 2 Ves. Jr. 187 189 
 
 v. , 2 Ves. Jr. 454 177 
 
 Jervis v. Berridge, L. R. 8 Ch. App. 
 
 357 247 
 
 Jesup v. Wabash, St. L. & P. Ry. Co., 
 
 U. S. C. C, N. D. 111., 1889 464 
 
 Jesus College v. Gibbs, 1 Y. & C. 145 211 
 Jewell v. Knisjht, 123 U. S. 426 597 
 
 John E'. Mulford, The, 18 Fed. R. 
 
 455 490 
 
 John Griffin, The, 15 Wall. 29 406 
 
 Johnasson v. Bonhote, L. R. 2 Ch. D. 
 
 298 186 
 
 Johns v. Johns, 23 Ga. 31 ^ 378 
 
 Johnson v. Accident Ins. Co. of N. A., 
 
 35 Fed. R. 374 590 
 
 v. Christian, 125 U. S 642 28 
 
 v. Compton, 4 Sim. 47 89 
 
 v. Harmon, 94 U. S. 371 447, 451, 
 
 452 
 
 v. Johnson, 13 Fed. R. 193 14 
 
 v. Monell, Woohv. 390 579 
 
 r. P. W. & B. R. R. Co., 1 Am. 
 
 L. J. 457 27 
 
 v. Peck, 2 Ves. Sen. 465 258 
 
 v. Powers, 13 Fed. R. 315 171 
 
 v. Shrewsbury & B. Ry. Co., 3 
 
 De G. M. & G. 914 319 
 
 v. The Coriolanus, Crabbe, 239 401 
 
 v. Waters, 111 U. S. 640 14. 456 
 
 v. Wyatt, 2 De G. J. & S. 18 316 
 
 Johnson County (Comm'rs of) v. 
 
 Thayer, 94 U. S. 631 557 
 
 Johnston v. Roe, 1 Fed. R 692 197 
 
 v. Todd, 5 Beav. 394 286 
 
 Jollie v. Jaques, 1 Blatchf. 618 315 
 
 Jolly v. Arbuthnot, 4 De G. & J. 224 475 
 Jones, Matter of, 4 Sandf.Ch. (N. Y.) 
 
 615 
 
 v. Alephsin, 16 Ves. 470 
 
 v. Andrews, 10 Wall. 327 
 
 v. Barker, 11 Fed. R. 597 
 v. Bolles, 9 Wall. 364 
 r. Brittan, 1 Woods, 067 
 
 374 
 394 
 
 28, 111, 
 161 
 
 237, 275 
 
 232
 
 xlviii 
 
 TABLE OF CASES. 
 [References are to pages.] 
 
 Jones v. Collier, 2 Amb. 730 
 
 v. Earl of Strafford, 3 P. Wms. 
 
 79 
 
 v. Frost, 3 Madd. 9 
 
 v. , 1 Jacob, 466 
 
 v. Garcia del Rio, 1 Turn. & R. 
 
 297 
 v. Great Western Rv. Co., 1 Ry. 
 
 Cas. (Eng 
 
 v. Howells, 2 Hare, 342 
 
 v. Jones, 3 Atk. 217 269, 
 
 v. Lewis, 1 Cox Eq. 199 
 
 v. Massey, 3 Beav. 292 
 
 v. Morehead, 1 Wall. 155 
 
 v. Neale, 1 Hughes, 268 
 
 v. Oregon Cent. R. R. Co., 3 
 
 Sawy. 523 427, 429, 
 
 v. Powell, 2 Mer. 141 
 
 v. Roberts, 12 Sim. 189 
 
 v. Segueira, 1 Phill. 82 
 
 v. Slauson. 33 Fed. R. 632 123, 
 
 v. , 40 Fed. R. 314 
 
 v. Smith, 14 111. 229 
 
 v. United States, 1 Ct. of CI. 
 
 383 
 
 v. Van Zandt, 5 How. 215 
 
 Jopp v. Wood, 2 De G. J. & S. 323 
 Jordan, Ex parte, 94 U. S. 248 88, 
 291, 292, 534, 
 v. Agawam Woollen Co., 3 Cliff. 
 
 239 
 Josslyn v. Phillips, 29 Fed. R. 481 
 
 Judson, Ex parte, 3 Blatchf . 89 
 
 , Ex parte, 3 Blatchf. 148 
 
 Juneau Bank v. McSpedan, 5 Biss. 64 
 
 440 
 181 
 181 
 
 89 
 
 339 
 272 
 272 
 84 
 257 
 216 
 426 
 
 431 
 
 66 
 288 
 209 
 171 
 559 
 252 
 
 410 
 
 597 
 516 
 290, 
 598 
 
 495 
 
 481, 
 590 
 413 
 424 
 160 
 
 K. 
 
 Kain v. Smith, 80 N. Y. 458 375 
 
 Kaine, Ex parte, 3 Blatchf. 1 545 
 
 , In re, 14 How. 103 545, 546, 547 
 
 Kaiser v. Kellar, 21 Iowa, 95 374 
 
 Kaitel v. Wylie, 38 Fed. R. 865 577 
 
 Kanawha Coal Co. v. Kanawha & O. 
 
 Coal Co., 7 Blatchf. 391 84 
 
 Kanouse v. Martin, 15 How. 198 587, 614 
 Kansas v. Bradley, 26 Fed. R. 289 25 
 
 Kansas City & T. Ry. Co. v. Interstate 
 
 Lumber Co., 36 Fed. R. 9 584 
 
 ». , 37 Fed. R. 3 570 
 
 Karr v. Jackson, 28 Mo. 316 405 
 
 Kauffnian v. Kennedy, 25 Fed. R. 785 
 
 160, 586 
 
 17. Walker, 9 Md. 229 463 
 
 Kay 17. Marshall, 1 Keen, 190 188, 189 
 Kearney v. Case, 12 Wall. 275 555 
 
 Rebel v. Philpot, 9 Sim. 614 451 
 
 Keenan v. Shannon, 9 N. B. R. 441 343 
 Keene v. Clarke, 5 Rob. (N. Y.) 38 314 
 
 0. Meade, 3 Pet. 1 430, 431 
 
 ». Wheatley, 9 Am. L. Reg. 33 241 
 
 Keep v. Indianapolis & St. L. R. R. 
 
 Co., 10 Fed. R. 454 551 
 
 Keiley v. Dusenbury, 10 J. & S. (N. Y.) 
 
 238 369 
 
 v. , 77 N. Y. 597 369 
 
 Keller v. Stolzenhach, 20 Fed. R. 47 199 
 Keiley, In re, 25 Fed. R. 268 544 
 p. Miss. Cent. R. R. Co., 1 Fed. 
 
 R. 564 ; 2 Flipp. 581 192 
 
 Kelly, In re, 5 Fed. R. 846 350, 353 
 
 v. Hutton, 17 W. R. 425 356 
 
 ». Receiver of Green Bay & M. 
 
 R. R. Co., 5 Fed. R. 846 350, 353 
 17. Virginia Protection Ins. Co., 
 
 3 Hughes, 449 586 
 
 Kelsey v. Hobby, 16 Pet. 269 228, 250 
 Kemp i'. Mackrell, 3 Atk. 812 258 
 
 Kempe's Lessee v. Kennedy, 5 Cranch, 
 
 173 543 
 
 Kendall v. Beckett, 1 Russ. 152 151, 241 
 
 ». Stokes, 3 How. 87 73 
 
 v. United States, 12 Pet. 524 537 
 
 Kendig v. Dean, 97 U. S. 423 101, 438, 
 
 446 
 Kennedy v. Baylor, 1 Wash. (Va.) 
 
 162 396 
 
 v. Creswell, 101 U. S. 641 209, 210 
 
 v. Georgia State Bank, 8 How. 
 
 586 245, 520 
 
 17. Green, 3 M. & K. 699 247 
 
 v. Indianapolis, C. & L. R. Co., 
 
 3 Fed. R. 97 375 
 v. St. Paul & P. R. R. Co., 2 Dill. 
 
 448 2, 363, 365, 366, 367 
 
 Kennington v. Houghton, 2 Y. & C. 
 
 N. R. 630 248 
 
 Kensett v. Stivers, 10 Fed. R. 517 322 
 Kent v. Burgess, 11 Sim. 361 449 
 
 Kentucky v. Donnison, 24 How. 266 20 
 Kentucky S. M. Co. r. Day, 2 Sawy. 
 
 468 113, 162 
 
 Kenworthy v. Accunor, 3 Madd. 550 157 
 Keppell v. Bailey, 2 M. & K. 517 107 
 
 Kern v. Huidekoper, 103 U. S. 485 11, 574 
 Kerosene L. H. Co. v. Fisher, 1 Fed. 
 
 R. 91 455, 456, 458 
 Kerr v. Moon, 9 Wheat. 565 68 
 17. South Park Comm'rs, 117 U. S. 
 
 379 450, 451 
 
 Kerrison v. Stewart, 93 U. S. 155 87 
 
 Kershaw v. Mathews, 1 Russ. 361 377, 378 
 Ketch urn, In re, 1 Fed. R. 840 356 
 
 17. Driggs, 6 McL. 13 184, 327 
 
 v. Farmers' L. & T. Co., 4 
 
 McL. 1 519 
 
 Ketland v. Bissett, 1 Wash. 144 430 
 
 Kettle t7. Crary, 1 Paige (N. Y.), 417, n. 90 
 Kidd v. Horry, 28 Fed R. 773 324 
 
 Kidwell v. Masterson, 3 Cranch C. C 
 
 52 336 
 
 Kiffin v. Kiffin, 1 P. Wms. 705 344 
 
 Kilbourn v. Sunderland, 130 U. S. 505 
 
 178, 191 
 Kilbourne v. State Sav. Inst., 22 How. 
 
 503 624 
 
 Kilgour v. New Orleans G. L. Co., 2 
 Woods, 144 13, 118, 119, 137, 158, 177
 
 TABLE OF CASES. 
 [References are to pages.] 
 
 xlix 
 
 Killian v. Ebbinghaus, 110 U. S. 568 7, 
 
 16, 143 
 
 v. , 111 U. S. 798 622, 623 
 
 Kimberly v. Arms, 129 U. S. 512 463 
 
 King v. Bryant, 3 M. & C. 191 457 
 
 v. Dale, 2 111. 513 405 
 
 v. Dundee M. & T. I. Co., 28 Fed. 
 
 R. 33 519, 523 
 
 v. King, 6 Ves. 172 342 
 
 v. Ohio & M. Ry. Co., 7 Biss. 529 371 
 
 King Bridge Co. v. Otoe County, 120 
 
 U. S. 225 481, 590 
 
 King of Spain v. Machado, 4 Russ. 
 
 225 106 
 
 King of Two Sicilies v. Willeox, 1 
 
 Sim. n. s. 301 178 
 
 Kirby v. Lake Shore & M. S. R. R. 
 
 Co , 120 U. S. 130 10 
 
 Kirby Bung Manuf. Co. v. White, 1 
 
 Fed. R. 604 312, 333, 339 
 Kirk v. Clark, Prec. in Ch. 275 102 
 v. Milwaukee D. C. M. Co., 26 
 
 Fed. R. 501 589 
 
 Kirkley v. Burton, 5 Madd. 378 141 
 
 Kirkpatrick v. Baltimore & O. R. R. 
 
 Co., 24 Pittsb. L. J. 51 425 
 
 v. White, 4 Wash. 595 208 
 
 Kissinger v. Bean, 7 Biss. 60 322 
 
 Kitchen v. Randolph, 93 U. S. 86 606 
 
 Kittle v. De Graaf, 30 Fed. R. 689 15 
 Kittredge v. Claremont Bank, 3 Story, 
 
 590; 1 Woodb. & M. 244 190, 192, 215, 
 
 219, 220, 225, 237 
 
 Knapp v. Banks, 2 How. 73 595 
 
 v. Williams, 4 Ves. 430, n. 356 
 
 Knickerbacker v. De Freest, 2 Paige 
 
 (N. Y.), 304 78 
 Knight v. Knight, 3 P. Wms. 331 81, 82 
 v. Lord 1'limouth, 3 Atk. 480; 
 
 1 Dick. 120 372, 374 
 
 v. Matthews, 1 Madd. 566 220, 241 
 
 v. Watts, Coop. t. Cottenham, 
 
 257 392 
 
 Knode v. Williamson, 17 Wall. 586 425, 
 
 429 
 Knott v. Burleson, 2 G. Gr. (la.) GOO 171 
 Knox v. Smith, 4 How. 298 16 
 
 Koehler, Ex parte, 23 Fed. R. 529 368 
 Kohl v. United States, 91 U. S. 367 565 
 Koontz v. Northern Bank, 16 Wall. 
 
 196 359, 360, 374 
 
 Korn o. Wiebusch, 33 Fed. R. 50 189 
 
 Koshkonong v. Burton, 104 U. S. 668 443 
 Kreager v. Judd, 5 Fed. R. 27 479 
 
 Krippendorf v. Hyde, 110 U. S. 276 28, 
 
 110, 111 
 Kurtz v. Moffitt, 115 U. S. 487 544, 570, 
 
 614 
 
 L. 
 
 Labette County Comm'rs v. United 
 States, 112 U. S. 217 539 
 
 Lacey, Ex parte, 6 Ves. 625 3 
 
 Lacroix v. Lyons, 27 Fed. R. 403 585, 590 
 La Crosse R. R. Bridge, 2 Dill. 465 360 
 Lady Arundell v. Phipps, 10 Ves. 139 306 
 Lady Carrington v. Cantillon, Bunb. 
 
 107 155 
 
 Lafayette Co. v. Neely, 21 Fed. R. 
 
 738 114, 117, 128, 383 
 
 Lafayette Ins. Co. v. French, 18 How. 
 
 404 113 
 
 Laimbeer v. Allen, 2 Sandf. (N. Y.) 
 
 648 408 
 
 Laird r. Mayor of De Soto, 25 Fed. 
 
 R. 76 538 
 
 Lake v. Austwick, 4 Jur. 314 268 
 
 v. Philips, 1 Rep. in Ch. 110 397 
 
 Lamaster v. Keeler, 123 U. S. 376 500, 
 
 562 
 Lamb v. Briard, Abb. Adm. 367 401 
 
 v. Starr, Deady, 350 170, 202, 208 
 
 La Mote Manuf. Co. v. National T. 
 
 W. Co., 15 Blatchf. 432 585 
 
 Lancashire v. Lancashire, 9 Beav. 259 449 
 Lancaster v. Lancaster, 6 Sim. 439 415 
 Land Co. of N. M. v. Elkins, 20 Fed. 
 
 R. 545 84, 97, 238, 332 
 
 Lane, Ex parte, 6 Fed. R. 34 544 
 
 v. Hardwicke, 9 Beav. 148 223 
 
 v. Morse, 6 How. Pr. (N. Y. ) 394 407 
 
 v. Newdigate, 10 Ves. 192 324 
 
 Lanesborough (Lord) v. Jones, 1 P. 
 
 Wms. 325 4 
 
 Langdale v. Briggs, 4 W. R. 703 475 
 
 Langdon v. Branch, 37 Fed. R. 449 121 
 
 v. Goddard, 3 Story, 13 116, 216, 217 
 
 Lange, Ex parte, 18 Wall. 163 542, 544 
 Langley v. Hawk, 5 Madd. 46 343 
 
 v. Overton, 10 Sim. 345 26-5 
 
 Langston v. Boylston, 2 Ves. Jr. 101 143, 
 ' 145 
 
 407 
 306 
 438 
 175 
 
 v. Wetherell, 14 M. &. W. 104 
 
 Lanier v. Alison, 31 Fed. R. 100 
 
 v. Nash, 121 U. S. 404 
 
 Lansdale v. Smith, 106 U. S. 391 
 Lansing v. County Treasurer, 1 Dill. 
 
 522 538 
 
 Lanz v. Randall, 4 Dill. 425 27 
 
 Earned v. Griffin, 12 Fed. R. 590 160, 191 
 Latham v. Chafee, 7 Fed. R. 520 194 
 
 r. , 7 Fed. R. 526 377 
 
 La Touche v. Lord Dunsany, 1 Sch. 
 
 6 Lef. 137 248, 254 
 Laurens, The, 1 Abb. Adm. 508 502, 504 
 Lautz v. Gordon, 28 Fed. R. 264 _'".l 
 La Vega v. Lapsley, 1 Woods, 428 227, 
 
 438 
 Lavender v. Lavender, 9 Ir. Eq. R. 
 
 593 387 
 
 Lawrence »\ Bowman, 1 McAll. 419 326 
 
 v. Dana, 4 Cliff. 1 314, 315 
 
 v. Gaultney, Cheves' Law (S. C), 
 
 7 405 
 v. Greenwich F. I. Co., 1 Paige 
 
 (X. Y.). 587 345 
 
 u. Morgan's R. R. & S. S. Co., 
 
 121 U. S. 634 304
 
 TABLE OF CASES. 
 [References are to pages.] 
 
 Lawrence ?>. Smith, Jacob, 471 314, 316 
 
 v. United States, 2 McL. 581 400 
 
 v, Wirtz, 1 Wash. 417 99 
 
 Lavrton v. Blitch, 30 Fed. R 641 589 
 
 Layer v. Nelson, 1 Veru. 456 4 
 
 Lazensky v. Knights of Honor, 32 
 
 Fed. R. 417 589, 590 
 
 Lea v. Deakin, 13 Fed. R. 514 339 
 
 Leach v. Kay, 2 Flipp. 590 488 
 
 Leary, Matter of, 10 Ben. 197 546 
 
 Leatherberry v. Radcliffe, 5 Cranch 
 
 C. C. 550 426 
 
 Leather Cloth Co. v. American L. C. 
 
 Co., 10 Jur. n. s. 81 317,318 
 
 v . , ii H. L. C. 523 318 
 
 Leather Manufacturers' Bank v. Coop- 
 er, 120 U. S. 778 25, 102, 571 
 Leavenworth v. Pepper, 32 Fed. R. 
 
 718 112 
 
 Leavenworth County v. Barnes, 94 
 
 U. S. 70 558 
 
 Leddel's Ex'r v. Starr, 19 N. J. Eq. 
 
 159 379 
 
 Lee, Ex parte, 4 Cranch C. C. 197 486 
 
 v. Brown, 4 Ves. 362 478 
 
 v. Lee, 1 Hare, 617 257, 258, 338 
 
 r . , 8 Pet. 44 595 
 
 v. Milner, 2 Y. & C. 611 300 
 
 v. Watson. 1 Wall. 337 23 
 
 Leech v. Bailey, 6 Price, 504 211 
 
 v. Kay, 4 Fed. R. 72 488 
 
 Leeds v. Jersey City & B. P. P. R. 
 
 Co., 16 N. J. Eq. 13 323 
 v. Marine Ins. Co., 2 Wheat. 
 
 380 396 
 
 Legard v. Daly, 1 Ves. Sen. 192 448 
 
 v. Sheffield, 2 Atk. 377 78 
 
 Leerand v. Whitehead, 1 Russ. 309 446 
 Lehigh Coal & Nav. Co. v. Central R. 
 
 R. ofN. J., 35 N. J. Eq. 426 363 
 
 Lehman v. McQuown, 31 Fed. R. 138 376, 
 
 388 
 Leicester v. Leicester, 10 Sim. 87 439 
 
 Leicester (Earl of) v. Perry, 1 Bro. C. 
 
 C. 305 189, 211 
 
 Leigh v. Leigh, Daniell's Ch. Pr. 369 114 
 
 v. Thomas, 2 Ves. Sen. 312 88, 290 
 
 v. Ward, 2 Vent. 72 396 
 
 Leiper v. Bickley, 1 Cranch C. C. 29 425 
 Leitch v. Cumpston, 4 Paige (N. Y.), 
 
 476 514 
 
 Leo ?>. Union Pacific Ry. Co., 17 Fed. 
 
 R. 273 128, 332 
 
 v. , 19 Fed. R. 283 116 
 
 Le Texier v. Margravine of Anspach, 
 
 15 Ves. 159 137 
 
 Letters Rogatory, In re, 36 Fed. R. 
 
 306 433 
 
 Levi v. Columbia Ins. Co., 1 Fed. R. 
 
 206 11 
 
 Levine v. Taylor, 12 Mass. 8 64 
 
 Leving v. Caverly, Prec. in Ch. 229 79 
 Levy v. Burley, 2 Sumn. 355 401 
 
 Lewarne v. Mexican Int. Imp. Co , 38 
 
 Fed. R. 629 122, 124 
 
 Lewis v. Baird, 3 McL. 56 203, 207 
 
 v. Bridgman, 2 Sim. 465 264, 265 
 
 v. Cocks, 23 Wall. 466 7, 16, 191 
 
 v. Darling, 16 How. 1 101,104 
 
 v. Fullarton, 2 Beav. 6 315 
 
 v. Shainwald, 7 Sawy. 403 57, 389, 
 
 391, 392 
 Lichfield (Earl of) v. Bond, 5 Beav. 
 
 513 226 
 
 Life Insurance Co. v. Bangs, 103 U. 
 
 S. 780 18, 199 
 
 Life & Fire Ins. Co. v. Adams, 9 Pet. 
 
 571 
 
 v. Wilson, 8 Pet. 291 
 
 534 
 534, 535 
 
 Lilienthal v. Washburn, 8 Fed. R. 707 209 
 Lillia v. Airey, 1 Ves. Jr. 277 479 
 
 Lincoln v. Battelle, 6 Wend. (N. Y.) 
 
 475 433 
 
 v. Claflin, 7 Wall. 132 560 
 
 Linder r. Lewis, 1 Fed. R. 378 169 
 
 Lindsay v. Lynch, 2 Sch. & Lef. 1 239 
 Lingan v. Henderson, 1 Bland (Md.), 
 
 236 476 
 
 Linn v. Green, 17 Fed. R. 407 133 
 
 Linton v. Mosgrove, 14 Fed. R. 513 304 
 Lippincott v. Shaw Carriage Co., 34 
 
 Fed. R. 570 478 
 
 Litchfield v. Ballou, 114 U. S. 190 17 
 
 Little v. Giles, 118 U. S. 596 438, 571 
 
 v. Gould, 2 Blatchf. 165 315, 316 
 
 v. Merrill, 62 Me. 328 247 
 
 Littlefield v. Perry, 21 Wall. 205 14 
 
 Liverpool Ins. Co. v. Massachusetts, 
 
 10 Wall. 556 27, 88 
 
 Liverpool, N. Y. & P. S. S. Co. v. 
 
 Comm'rs of Emigration, 113 U. S. 
 
 33 198 
 
 Livingston v. Dorgenois, 7 Cranch, 
 
 577 534 
 v. Gibbons, 4 Johns. Ch. (N. Y.) 
 
 94 101 
 v. Kane, 3 Johns. Ch. (N. Y.) 
 
 224 439, 440 
 i\ Pettigrew, 7 Lans. (N. Y.) 
 
 405 374 
 
 v. Story, 9 Pet. 632 418 
 
 v. ,11 Pet. 351 190 
 
 v. Wood worth, 15 How. 546 107 
 
 Lloyd, In re, 10 Beav. 451 505 
 
 r. , 2 Dick. 400 79 
 
 Brewster, 4 Paige (N. Y.), 
 
 537 
 
 Gurdon, 2 Swanst. 180 
 v. Heath, Busb. Eq. (N. 
 
 v. Johnes, 9 Ves. 37 8 
 
 v. Loaring, 6 Ves. 773 
 
 v. London, C. & D. Ry. 
 
 De G. J. & S. 568; 11 Jur. 
 
 380 
 
 v. Smith, 13 Sim. 457 
 
 v. Spillat, 3 P. Wins. 344 
 
 Locke v. Covert, 42 Hun (N 
 
 484 
 
 118 
 305 
 C.) 39 
 
 309 
 
 \ 270, 272, 
 
 276, 278 
 
 89 
 
 Co., 2 
 
 N. 8. 
 
 300, 301 
 85 
 496, 497 
 Y-), 
 
 869
 
 TABLE OF CASES. 
 [References are to pages.] 
 
 Locke v. United States, 7 Cranch, 339 
 Lockhart v. Horn, 3 Woods, 542 
 Lockwood v. Cleaveland, 6 Fed. R. 
 
 721 248, 
 
 Locomotive E. S. T. Co. v. Erie Ry. 
 
 Co., 10 Blatchf. 292 
 Lodge v. Stoddart, 9 Reporter, 137 
 Loewenstein v. Biernbaum, 8 W. N. 
 
 C. (Pa.) 163 
 Logan v. Patrick, 5 Cranch, 288 111, 
 Loker v. Rolle, 3 Ves. 4 
 London v. Bolt, 5 Ves. 129 288, 
 v. Corporation of Liverpool, 3 
 
 Anst. 738 
 
 v. Levy, 8 Ves. 398 186, 
 
 v. Perkins, 3 Bro. P. C. 602 92, 
 
 Long Island, N. S., P. & F. T. Co., In re, 
 
 5 Fed. R. 599 
 Longworth v. Taylor, 1 McL. 514 
 
 Lonsdale v. Brown, 3 Wash. 404 
 Lonsdale (Earl of) v. Church, 3 Bro. 
 
 C. C 41 
 Lonsdale Co. v. Moies, 2 Cliff. 538 
 Lookout Mountain R. R. Co., v. Hous- 
 ton, 32 Fed. R. 711 
 Loom Co. v. Higgins, 105 U. S. 580 
 Loomis v. Carrington, 18 Fed. R. 97 
 
 v. New York & C. G. C. Co., 33 
 
 Fed. R. 353 
 Lord v. Veazie, 8 How. 251 
 
 v. Whitehead & A. Machine Co., 
 
 21 Fed. R. 801 
 Lord Brook v. Lord Hertford, 2 P. 
 
 Wins. 518 
 Lord Byron v. Johnston, 2 Meriv. 29 
 
 Lord Chedworth v. Edwards, 8 Ves. 
 
 46 
 Lord Digby v. Meech, Bunb. 195 
 Lord Dillon v. Alvares, 4 Ves 357 
 Lord Dursley v. Berkeley, 6 Ves. 251 
 
 Lord Fingal v. Blake, 1 Moll. 113 
 Lord Lanesborougli v. Jones, 1 P. 
 
 Wms. 325 
 Lord Manners v. Johnson, L. R. 1 Ch. 
 
 I). 673 
 Lord Montague v. Dudman, 2 Ves. 
 
 Sen. 396 
 Lord Montford v. Lord Cadogan, 17 
 
 Ves. 485 
 Lord Pelham v. Duchess of New- 
 castle, 3 Swanst. 289, n. 
 
 v. , 3 Swanst. 293, n. 
 
 v. Lord Harley, 3 Swanst. 291, n. 
 
 Lord Shipbrooke v. Lord Hinchin- 
 
 brook, 13 Ves. 387 
 Lord Uxbridge v. Staveland, 1 Ves. 
 
 Sen. 56 114, 140, 178, 
 
 Lorillard v. Standard Oil Co., 2 Fed. 
 
 R. 902 65, 80, 
 
 Loring, Ex parte, 94 U. S. 418 
 
 r. Marsh, 2 Cliff. 311 194, 
 
 -, 2 Cliff. 469 
 
 406 
 169 
 
 250 
 
 468 
 316 
 
 389 
 156 
 417 
 327 
 
 188 
 417 
 124 
 
 304 
 151, 
 241 
 429 
 
 373 
 454 
 
 580 
 214 
 
 587 
 
 30 
 504 
 
 14 
 
 471 
 
 331, 
 332 
 
 305 
 131 
 194 
 4, 
 414 
 448 
 
 4 
 
 300 
 
 304 
 
 343 
 
 510 
 510 
 510 
 
 287 
 
 219 
 
 255 
 535 
 
 209 
 6 
 
 ll 
 
 9,557 
 
 Lorman v. Clarke, 2 McL. 568 
 Lorton !;. Seaman, 9 Paige (N. Y.), 
 
 609 293 
 
 Louisiana v. Jumel, 107 U. S. 711 75, 
 
 323, 536 
 
 v. Pilsbury, 105 U. S. 278 558 
 
 Louisiana Bank v. Whitney, 121 U. S. 
 
 284 467 
 
 Louisiana S. L. Co. v. Clark, 16 Fed. 
 
 R. 20 ; 4 Woods, 169 301 
 
 v. Fitzpatrick, 3 Woods, 222 210 
 
 Louisville, C. & C. R. R. Co. v. Let- 
 son, 2 How. 497 26 
 Louisville & N. R. R. Co. v. Ide, 114 
 
 U. S. 52 571 
 
 v. Palmes, 109 U. S. 244 172 
 
 Lousada v. Templer, 2 Russ. 565 238 
 
 Love v. Baker, 1 Ch. Cas. 67 304 
 
 Lovejoy t>. United States, 128 U. S. 
 
 171 556 
 
 Loveridge v. Larned, 7 Fed. R. 294 478 
 Loving v. Fairchild, 1 McL. 333 208 
 
 Low v. Durfee, 5 Fed. R. 256 550 
 
 v. Hauel, 1 Wall. Jr. 345 335 
 
 Lowe v. Farlie, 2 Madd. 101 186 
 
 v. Lowe, 1 Tenn. Ch. 515 383 
 
 v. Richardson, 3 Madd. 277 143 
 
 Lowell v. Lewis, 1 Mason, 182 214 
 
 Lowenstein v. Glide well, 5 Dill. 325 252, 
 
 253, 254 
 Lowndes v. Bettle, 33 L. J. Ch. 461 309 
 Lowther v. Andover, 1 Bro. C. C. 396 470 
 Loyd v. Cardy, Prec. in Ch. 171 391 
 
 Lubiere v. Genou, 2 Ves. Sen. 579 253 
 Lucas v. Brooks, 18 Wall. 436 410 
 
 v. Lucas, 13 Ves. 274 219, 225 
 
 Lull v. Clark, 20 Fed. R. 454 458, 461 
 Lumbrozo v. White, 1 Dick. 150 407 
 
 Luminary, The, 8 Wheat. 407 406 
 
 Lumley v. Wagner, 1 De G. M. & G. 
 
 604 319 
 
 Lunt v. Davison, 104 Mass. 498 538 
 
 Lupton v. Stephenson, 1 1 Ir. Eq. 484 379, 
 
 380 
 Luther v. The Merritt Hunt, Newb. 
 
 4 426, 427 
 
 Lutterel's Case, Prec. in Ch. 50 66, 307 
 Luxton v. Stephens, 3 P. Wms. 373 480 
 Lyell v. Goodwin, 4 MeL. 29 160 
 
 Lyman v. Brown, 2 Curt. 559 199 
 
 Lyman V. & R. Co. v. Southard, 12 
 
 Blatchf. 405 498 
 
 Lyster v. Stickney, 12 Fed. R. 609 239, 
 
 240, 435 
 Lytle, In re, 3 Paige (N. Y.), 251 386 
 
 M. 
 
 Macaulay v. White S. M. Co., 9 Fed. 
 
 R. 698 313 
 
 Macgregor v. Macgregor, 9 Iowa, 65 468 
 Mack v. Jones, 31 Fed. R. 189 387, 589 
 Macker v. Thomas, 7 Wheat. 530 554, 
 
 599
 
 lii 
 
 TABLE OF CASES. 
 [References are to pages.] 
 
 Mackett v. Commissioners of Heme 
 
 Bay, 24 W. R. 845 ^ 328 
 
 Mackin v. United States, 117 U. S. 
 
 348 543 
 
 Mackreth v. Fox, 4 Bro. P. C. 258 3 
 
 v. Nicholson, 19 Ves. 367 152 
 
 Mahoney Min. Co. v. Bennett, 4 
 
 Sawy. 289 387, 584 
 
 Maine v. Oilman, 11 Fed. R. 214 587 
 
 Mair v. Himalaya Tea Co., L. R. 
 
 1 Eq. 411 318 
 
 Malcolm v. Montgomery, 2 Moll. 500 377 
 Mallack v. Gallon, 3 P. Wms. 352 471 
 Mallory Manuf. Co. v. Fox, 20 Fed. 
 
 R. 409 462, 502 
 
 Mallow v. Hinde, 12 Wheat. 193 96, 98, 
 
 99, 106 
 Malone v. Richmond & D. R. R. Co , 
 
 35 Fed. R. 625 577, 578, 579 
 
 Maloy v. Duden, 25 Fed. R. 673 27, 580 
 Maltby v. Bobo, 14 Blatchf. 53 327 
 
 Maltz v. American Exp. Co., 3 Cent. 
 
 L. J. 784 27 
 
 Manaton v. Molesworth, 1 Eden, 18 137, 
 
 521 
 Manby v. Robinson, L. R. 4 Ch. 347 144, 
 
 145 
 Mandeville v. Riggs, 2 Pet. 482 90 
 
 Manhattan Co. v. Evertson, 4 Paige 
 
 (N. Y.), 276 456 
 
 Manhattan I. W. Co. v. French, 12 
 
 Abb. N. C. (N. Y.) 446 310 
 
 Mann v. King, 18 Ves. 297 284 
 
 Manners v. Rowley, 10 Sim. 470 122 
 
 Manners (Lord) v. Johnson, L. R. 
 
 1 Ch. D. 673 300 
 
 Mansfield, C. & L. M. Ry. Co. *. 
 
 Swan, 111 U. S. 379 437, 480, 589, 
 
 590 
 Manufacturing Co. v. Bradley, 105 
 
 U. S. 175 8, 13, 98, 124 
 Many, Ex parte, 14 How. 24 534 
 v. Beekman Iron Co., 9 Paige, 
 
 189 82 
 
 v. Sizer, 1 Fisher Pat. Cas. 31 312 
 
 Marbury v. Madison, 1 Cranch, 137 5, 
 
 73, 534 
 Mare v. Malachy, 1 M. & C. 559 83 
 
 Margrave v. Le Hooke, 2 Vern. 207 175 
 Marin v. Lalley, 17 Wall. 14 467 
 
 Market Co. v. Hoffman, 101 U. S. 112 24, 
 
 596 
 Markey v. Mutual Benefit L. I. Co., 
 
 6 Ins. L. J. 537 8, 125, 175, 418 
 
 Markle v. Markle, 4 Johns. Ch. 
 
 (X. Y.) 168 79 
 
 Marks v. Fox, 18 Fed. R. 713 462 
 
 Marquis Cholmondeley v. Lord Clin- 
 ton, 2 Jac. & W. 1 83, 84 
 
 v. , 2 Meriv. 71 239, 418 
 
 Marriott v. Tarpley, 9 Sim. 297 271 
 
 Marrow, In re, Cr. & Ph. 142 294 
 
 Marsh, Matter of, MacA. & M. (D. C.) 
 
 32 506 
 v. Sibbald, 2 Ves. & B. 375 450 
 
 Marsh v. Whitmore, 21 Wall. 185 175 
 Marshall v. Baltimore & U. R. R. Co., 
 
 16 How. 314 26 
 
 v. Mellersh, 5 Beav. 496 280 
 
 v. Turnbull, 34 Fed. R. 827 131 
 
 Martin, In re, 5 Blatchf. 303 540, 544, 545 
 o. Hazard Powder Co., 93 U. S. 
 
 302 606 
 
 v. Hunter, 1 Wheat. 304 604, 613, 
 
 623 
 
 v. Nicolls, 3 Sim. 458 199 
 
 Martinetti v. Maguire, Deady, 216 317 
 Martinius v. Ilelmuth, G. Cooper, 248, 
 
 2 Ves. & B. 412, n. 145, 156, 480 
 
 Marve v. Parsons, 114 U. S. 325 16, 322 
 Maryland v. Baldwin, 112 U. S. 490 26 
 Mason v. Bogg, 2 My I. & C. 443 89 
 
 v. Codwise, 6 Johns. Ch. (N. Y.) 
 
 183 
 
 v. Crosby, 3 Woodb. & M. 258 
 v. Gardiner, 4 Bro. C. C. 436 
 
 497 
 463 
 138, 
 252 
 145 
 
 v. Hamilton, 5 Sim. 19 
 
 v. Hartford, P. & F. R. R. Co., 
 
 10 Fed. R. 334 204, 230, 231, 239, 240 
 
 v. , 19 Fed. R 53 68, 264, 265 
 
 v. Lake, 2 Bro. P. C. 495 178 
 
 v. Northwestern Ins. Co., 106 
 
 U. S. 163 473 
 
 v. Rollins, 2 Biss. 99 321 
 
 Massa v. Cutting, 30 Fed. R. 1 24 
 
 Massachusetts Mut. L. I. Co. v. Chi- 
 cago & A. R. Co., 13 Fed. R. 857 194, 
 
 195 
 
 Massie v. Graham, 3 McL. 41 514, 519, 
 
 520, 521, 622 
 
 v. Watts, 6 Cranch, 148 2, 305, 468 
 
 598, 
 599 
 169 
 84 
 469 
 468 
 14 
 
 Masterson v. Herndon, 10 Wall. 416 
 
 v. Howard, 18 Wall. 99 
 
 Matcalm v. Smith, 6 McLean, 416 
 Matteson v. Scofield, 27 Wis. 671 
 Matthaei v. Galitzin L. R., 18 Eq. 340 
 Matthews v. Green, 19 Fed. R. 649 
 v. Ironclad Manuf. Co., 19 Fed. 
 
 R. 321 333 
 v. Lalance & G. Manuf. Co., 2 
 
 Fed. R. 232 193, 210, 231 
 
 v. Ofliey, 3 Sumner, 115 401 
 
 v. Pufier, 10 Fed. R. 606 160 
 
 v. Tufts, 87 N. Y. 568 160, 412 
 
 v. Warner, 6 Fed. R. 461 9, 138 
 
 c. , 112 U. S. 600 9, 138 
 
 Matthewson v. Stockdale, 12 Ves. 270 316 
 Mattocks v. Freeman, 3 Johns. Ch. 
 
 (N.Y.J75 391,392 
 Maury v. Mason, 8 Port. (Ala.) 213 212 
 v. Van Arnum, 1 Hill (N. Y.), 
 
 370 407 
 
 Maxwell v. Atchison, T. & S. F. R. 
 
 Co., 34 Fed. R. 286 154,155 
 
 v. Kennedy, 8 How. 210 175 
 
 May, In re, 1 Fed. R. 737 504 
 v. County of Fond du Lac, 27 
 
 Fed. R. 691 11
 
 TABLE OF CASES. 
 [References are to pages.] 
 
 May v. County of Logan, 30 Fed. P.. 
 
 250 11, 554 
 
 Mayer, In re, L. K. 3 P. & M. 39 356 
 
 v. Foulkrod, 4 Wash. 349 12 
 
 Mayhew v. West Virginia O. & O. L. 
 
 Co., 24 Fed. R. 205 464 
 
 Maynard v. Green, 30 Fed. R. 643 271 
 
 v. Pomfret, 3 Atk. 468 165 
 
 Mayor, The, v. Lord, 9 Wall. 409 538 
 Mayor of London v. Bolt, 5 Ves. 129 288, 
 
 327 
 
 v. Levy, 8 Ves. 398 186,417 
 
 Mayor of New York v. Miln, 9 Pet. 
 
 85 620 
 
 Mayor of York v. Pilkington, 1 Atk. 
 
 282 . 92, 124 
 
 v. , 2 Atk. 302 304 
 
 Mays v. Rose, Freem. Ch. (Miss.) 703 346 
 Mazarredo v. Maitland, 3 Madd. 66 218 
 McArthur v. Kelly, 5 Ohio, 139 322 
 
 v. Scott, 113 U. S. 340 90, 91, 92 
 
 McBratney v. Usher, 1 Dill. 307 585 
 
 McCabe v. Bellows, 1 Allen (Mass.), 
 
 269 126 
 
 McCall v. Towers, 1 Cranch C. C. 41 429 
 McCarty & H. Trading Co. v. Glaen- 
 
 zer, 30 Fed. R. 387 25 
 
 McCauley v. Kellogg, 2 Woods, 13 235 
 McCaull v. Braham, 16 Fed. R. 37 319 
 McCloskey v. Barr, 38 Fed. R. 165 
 
 188, 189, 190, 192, 198 
 McClung v. Silliman, 6 Wheat. 598 536, 
 
 537 
 McCluny v. Silliman, 3 Pet. 270 10 
 
 McCollum v. Eager, 2 How. 61 467 
 
 McComb v. Chicago, St. L. & N. O. 
 
 R. R. Co., 7 Fed. R. 426 82 
 
 — — v. Commissioners of Knox Co., 
 
 91 U. S. 1 614 
 
 McConihay v. Wright, 121 U. S. 201 8 
 McConville v. Gilmour,36 Fed. R. 277 21, 
 
 22,25 
 McCormick v. Chamberlin, 11 Paige 
 
 (N. Y.), 543 225 
 
 v. Gray, 13 How. 26 24 
 
 v. Jerome, 3 Blatchf. 486 334 
 
 v. Knox, 105 U. S. 122 470 
 
 v. Sullivant, 10 Wheat. 192 543 
 
 McCosker v. Bradv, 1 Barb. Ch. 
 
 (N.Y.)329 343 
 
 McCoy v. Cincinnati, I., St. L. & C. 
 
 R. R. Co., 13 Fed. R 3 298, 325 
 
 v. Nelson, 121 U. S. 484 129, 130 
 
 v. Rhodes, 11 How. 131 97 
 
 McCrary v. Pennsylvania Canal Co., 
 
 5 Fed. It. 367 " 339, 341 
 
 McDermott v. Chicago & N. W. Ry. 
 
 Co., 38 Fed. R. 529 579 
 
 McDonald v. Salem C. F. M. Co., 31 
 
 Fed. R. 577 27, 190, 590 
 
 McDonnell v. Eaton, 18 Fed. R. 710 100, 
 
 125 
 
 v. White, 11 H. L. C. 570 359 
 
 McElrath v. Mcintosh, 1 Law Rep. 
 
 x. 8. 399 322 
 
 liii 
 
 McElrath v. Pittsburg & S. R. R. Co., 
 
 5 Pa. St. 189 468 
 
 McElroy v. Kansas City, 21 Fed. R. 
 
 257 309 
 
 McElwain v. Willis, 3 Paige (N. Y.), 
 
 505 187 
 
 McEvers v. Lawrence, Hoffm. (N. Y.) 
 
 172 369 
 
 McFerran v. Taylor, 3 Cranch, 281 3 
 
 McGehee v. Polk, 24 Ga. 406 392 
 
 McGoon v. Scales, 9 Wall. 23 443 
 
 McGowin v. Remington, 12 Pa. St. 56 
 
 319, :!25 
 McGregor v. McGillis, 30 Fed. R. 388 584 
 McGuire v. Commonwealth, 3 Wall. 
 
 382 614 
 
 v. Eames, 15 Blatchf. 312 312 
 
 McHenry v. New York, P. & O. R. R. 
 
 Co., 25 Fed. R. 65 580 
 
 Mclntire v. Wood, 7 Cranch, 504 536 
 
 McKay v. Dibert, 5 Fed. R. 587 312, 333 
 McKeen v. Ives, 35 Fed. R. 801 575 
 
 McKewan v. Sanderson, L. R. 16 Eq. 
 
 316 205, 208 
 
 McKim v. Voorhies, 7 Cranch, 279 303 
 McLaughlin v. Swann, 18 How. 217 301 
 
 v. United States, 107 U. S. 526 12 
 
 McLean v. Clark, 23 Fed. R. 861 481 
 
 v. Lafayette Bank, 3 McL. 185 303 
 
 y . ; 3 McL. 415 123 
 
 „. 1 3 McL. 503 280, 282 
 
 McMicken v. Perrin, 18 How. 507 514 
 McMillin v. St. Louis & M. V. T. Co., 
 
 18 Fed. R. 260 129, 130 
 
 McNamara v. Dwyer, 7 Paige (N. Y.), 
 
 239 68 
 
 McNeill v. Cahill, 2 Bligh, 228 446 
 
 McNiel v. Holbrook, 12 Pet. 84 411, 624 
 McRea v. Branch Bank of Ala., 19 
 
 How. 376 99, 101 
 
 Mc Williams Manuf. Co. v. Blundell, 
 
 11 Fed. R. 419 333 
 
 Meach v. Chappell, 8 Paige (N. Y.), 
 
 135 408 
 
 Mead v. Lord Orrery, 3 Atk. 285 382 
 
 Meade v. Beale, Taney's Dec. 339 5, 6, 7 
 
 v. Keane, 3 Cranch C. C. 51 430, 431 
 
 Meath v. Phillips County, 108 U. S. 
 
 553 10, 197 
 
 Mechanics' Bank v. Seton, 1 Pet. 
 
 299 102, 431 
 
 Medsker v. Bonebrake, 108 U. S. 66 462 
 Meier v. Kansas Pac. R. R. Co., 5 
 
 Dill. 476 386 
 
 Meigs v. McClung, 9 Cranch, 11 73 
 
 Meissner v. Buck, 28 Fed. It. 161 247 
 
 Melius v. Thompson, 1 Cliff. 125 206, 
 257, 260, 264 
 Memphis v. United States, 97 U. S. 
 
 293 536 
 
 Memphis City v. Dean, 8 Wall. 64 190, 
 
 193 
 Menzies v. Rodriguez, 1 Price, 92 335 
 Mercantile Trust Co. v. Kanawha & 
 
 O. Ry. Co., 39 Fed. R. 337 12, 346
 
 liv 
 
 TABLE OF CASES. 
 [References are to pages.] 
 
 Allen, 121 
 
 591 
 
 553 
 
 376 
 585 
 16, 
 
 Merchants' Ins. Co. 
 
 U. S. 67 
 Merchants' Nat. Bank v. State Nat. 
 
 Bank. 3 Cliff. 201 
 Merchants' & M. Nat. Bank v. Kent 
 
 Circuit Judge, 43 Mich. 292 
 
 v. Wheeler, 13 Blatchf. 218 
 
 Meriwether v. Garrett, 102 U. S. 472 
 
 239, 356, 357, 536 
 Merriam v. Haas, 3 Wall. 687 601 
 
 Merrill v. Dawson, Hempst. 563 428, 429, 
 
 430, 431 
 Merryfield v. Jones, 2 Curt. 306 339 
 
 Mersman v. Werges, 112 U. S. 139 33 
 Merwin v. Smith, 1 Green Ch. (N.J.) 
 
 182 
 Metal Stamping Co. v. Crandall, 18 
 
 Off. Gaz. 1531 
 Metcalf v. Hervey, 1 Ves. Sen. 248 
 
 463 
 
 268 
 142, 
 
 143, 144, 173 
 
 v. Watertown, 128 U. S. 586 25 
 
 v. Williams, 104 U. S. 93 14 
 
 Metcalfe v. Metcalfe, 1 Keen, 74 264 
 
 v. Pulvertoft, 1 Ves. & B. 180 377 
 
 Metier v. Metier, 19 N. J. Eq. 457 417 
 Metropolitan G. & S. Exch. v- Chicago 
 
 Board of Trade, 15 Fed. R. 847 335 
 Metropolitan R. R. Co. v. Moore, 121 
 
 U. S. 558 559 
 
 Meux v. Bell, 6 Sim. 175 144 
 
 Mever v. Johnston, 53 Ala. 237 365, 366 
 Meyers v. Block, 120 U. S. 206 9 
 
 v. Busby, 32 Fed. R. 670 215 
 
 Micas v. Williams, 104 U. S. 556 616 
 
 Michoud v. Girod, 4 How. 503 467 
 
 Micklethwaite v. Atkinson, 1 Coll. 
 
 173 219, 225 
 
 Middleton v. Bankers' & M. Tel. Co., 
 
 32 Fed. R. 524 461 
 
 v. Dodswell, 13 Ves. 266 377 
 
 v. Sherburne, 4 Y. & C. 358 449 
 
 Misdiorucci „. Migliorucci, 1 Dick. 
 
 147 499 
 Milburn, Ex parte, 9 Pet. 704, n. 545 
 Miller v. Buchanan, 5 Fed. R. 366 216 
 v. Chicago, B. & Q. R. R. Co., 17 
 
 Fed. R. 97 579 
 
 v. Cotten, 5 Ga. 341 114 
 
 v. Fenton, 11 Paige (N. Y.), 18 189 
 
 Jamison, 9 C. E. Green (N. J.), 
 
 41 
 
 126 
 614 
 590 
 
 v. Joseph. 17 Wall. 655 
 
 v. Kent, 18 Fed. R. 561 
 
 r. Liggett & M. Tobacco Co., 7 
 
 Fed. R. 91 434 
 
 v. McElroy, 1 Am. L. Reg. 198 315 
 
 v. Scott, 6 Phila. (Pa.) 484 412, 532 
 
 v. Tobin, 18 Fed. R. 609 585 
 
 v. Young, 2 Cranch C. C. 53 424 
 
 Milkr-Magee Co. v. Carpenter, 34 
 
 Fed. R. 433 22, 170 
 
 Milligan v. Lalance & G. Manuf. Co., 
 
 21 Blatchf. 407 ; 17 Fed. R. 465 587 
 
 v. Milledge, 3 Cranch, 220 96, 190, 
 
 408 
 
 Milligan v. Mitchell. 1 M. & K. 446 306 
 Milliken v. Ross, 9 Fed. R. 855 559 
 
 v. Selye, 3 Den. (N. Y.) 54 407 
 
 Millington v. Fox, 3 M. & C. 338 477, 478 
 Mills v. Dennis, 3 Johns. Ch. (N. Y.) 
 
 367 164, 223, 471 
 
 v. Fry, 1 Ves. & B. 382, n. 440 
 
 v. Hurd, 32 Fed. R. 127 96, 124 
 
 v. Northern Ry. of B. A. Co., 23 
 
 L. T. n. s. 71S 299, 345 
 
 v. Scott, 99 U. S. 25 9, 558 
 
 Miltenberger v. Logansport Ry. Co., 
 
 106 U. S. 286 83, 349, 350, 351, 365, 
 
 366, 367, 368, 378, 379 
 
 Milward v. Welden, Tothill, 101 233 
 
 Milwaukee v. Koeffler, 116 U. S. 219 16 
 
 Milwaukee R. R. Co., Ex parte, 5 
 
 Wall. 188 535 
 
 Milwaukie & M. R. R. Co. v. Soutter, 
 
 2 Wall. 440 467 
 
 v. , 2 Wall. 510 344, 346, 387 
 
 Miner v. Markham, 28 Fed. R. 387 159, 
 
 161, 412 
 Mining Co. v. Taylor, 100 U. S. 37 554 
 Minnesota Co. v. St. Paul Co., 2 Wall. 
 
 609 28, 110, 111, 207, 272, 277 
 
 Minturn v. Larue, McAll. 370 333 
 
 Minuse v. Cox, 5 Johns. Ch. (N. Y.) 
 
 441 497 
 
 Mirzan, Ex parte, 119 U. S. 584 546 
 
 Mississippi v. Johnson, 4 Wall. 475 15, 
 68, 150, 159, 322 
 Mississippi & Mo. R. R. Co. v. Crom- 
 well, 91 U. S. 643 13, 19, 300 
 
 v. Ward, 2 Black, 485 24, 98, 99, 
 
 109, 308, 596 
 Missouri v. Iowa, 7 How. 660 77 
 Missouri, K. & T. R. R. Co. v. Dins- 
 more, 108 U. S. 30 467 
 v. Scott, 13 Fed. R. 793; 4 
 
 Woods, 386 303 
 v. Texas & St. L. Ry. Co., 10 
 
 Fed. R. 497 309 
 
 Missouri Pacific Ry. Co. ». Chicago & 
 
 A. Rv. Co., 132 U. S. 191 559 
 v. Texas & P. Ry. Co., 31 Fed. 
 
 R. 862 368 
 
 y . 33 Fed. R. 701 361 
 
 „. 1 38 Fed. R. 775 482, 483 
 
 Mitchell. Ex parte, 12 S. C. 83 367 
 
 r. Bunch, 2 Paige (N. Y.), 606 390 
 
 v. Great Works M. & M. Co., 2 
 
 Story, 648 14 
 
 v. Harmony. 13 How. 115 73 
 
 Mix v. Andes Ins. Co., 74 N. Y. 53 574 
 Moan v. Wilmarth, 3 Woodb. & M. 
 
 399 550 
 
 Mobile & M. Ry. Co. v. Jurey, 111 
 
 U. S. 584 ' 560 
 
 Mobile County v. Kimball, 102 U. S. 
 
 691 136 
 
 Moffat v. United States, 112 U. S. 24 12, 
 
 109, 139 
 Mohawk & H. R. R. Co. v. Clute, 4 
 
 Paige (N. Y.), 384 143, 146
 
 TABLE OF CASES. 
 [References are to pages.] 
 
 lv 
 
 Mollan v. Torrance, 9 Wheat. 537 34 
 
 Monkhouse v. Corporation of Bed- 
 ford, 17 Ves. 380 472 
 Montague (Lord) v. Dudman, 2 Ves. 
 
 Sen. 396 304 
 
 Montford (Lord) v. Lord Cadogan, 17 
 
 Ves. 485 343 
 
 Montross v. Mabie, 30 Fed. R. 234 301 
 Moodalay v. Morton, 1 Bro. C. C. 409 4 
 Moody v. Hebberd, 11 Jur. 941 283 
 
 Moons v. De Bernales, 1 Russ. 301 447 
 Moor v. Welsh Copper Co., 1 Eq. Cas. 
 
 Abr. 39, pi. 14 194, 195 
 
 Moore p. Chicago, St. P., M. & O. 
 R. R. Co., 21 Fed. R. 817 27 
 
 v. Crawford, 130 U. S. 122 470 
 
 p. Edgefield, 32 Fed. R. 498 24, 539 
 
 v. Hudson, Madd. & Geld. 218 390 
 
 v. Huntington, 17 Wall. 417 253 
 
 v. Lyttle, 4 Johns. Ch. (N. Y.) 
 
 183 
 
 v. Meynell, 2 Vern. 614, n. 
 
 „. 1 i i)i c k. 30 
 
 v. Moore, 25 Beav. 8 
 
 v. , 2 Ves. Sen. 596 
 
 Nelson, 3 McL. 383 
 
 175 
 80 
 
 390 
 339, 508 
 517, 518, 
 
 524 
 426, 427 
 
 Moran v. City of Elizabeth, 9 Fed. R. 
 
 72 
 
 538 
 
 534 
 
 540, 610 
 
 211,252 
 
 297 
 
 969 283 
 
 356 
 
 Morgan, Ex parte, 114 U. S. 174 
 
 v. Curtenius, 19 How. 8 
 
 v. Tipton, 3 McL. 339 
 
 Morison p. Moat, 9 Hare, 241 
 Morrall v. Prichard, 11 Jur. n. s. 
 Morris v. Elme, 1 Ves. Jr. 139 
 
 p. Gilmer, 129 U. S. 315 27, 438, 590 
 
 p. Haywood, 6 Taunt. 569 508 
 
 v. Lowell Manuf. Co., 3 Fisher's 
 
 Pat. Cas. 67 
 
 p. Morris, 2 Phill. 205 
 
 v. Slielbourne, 8 Blatchf . 266 
 
 Morrison p. Arnold, 19 Ves. 670 415, 416 
 p. Bernards Township, 35 Fed. 
 
 R. 400 
 Mortimer v. Fraser, 2 M. & Cr. 173 
 Moses v. Macferlan, 2 Burr. 1005 
 
 p. Mayor, 15 Wall. 387 
 
 p. Wooster, 115 U. S. 285 
 
 Mosgrove v. Kountze, 14 Fed. R. 315 
 Mosher v. Heydrick, 45 Barb. (N. Y.) 
 
 549; 30 How. Pr. (N. Y.) 161 
 Mosley p. Taylor, 2 Y. & J. 520 ; 1 
 
 Keen, 601 
 Moss v. Baldock, 1 Phill. 118 
 
 311 
 413 
 
 33:J 
 
 560 
 
 182 
 
 2 
 
 467 
 599 
 270 
 
 407 
 
 Mossman p. Iligginson, 4 Dall. 12 
 
 1')7 
 
 r,17 
 
 26 
 
 Motto v. Bennett, 2 Fisher Pat. Cas. 
 
 642 
 Motteux p. London Assur. Co., 1 Atk. 
 
 545 
 Mounsey v. Burnham, 1 Hare, 15 
 Mouseley v. Basnett, 1 Ves. & B. 
 
 382, n. 
 Mowry v. Grand St. & N. R. Co., 10 
 
 Blatchf. 89; 5 Fisher Pat. Cas. 586 312 
 Mullau v. United States, 118 U. S. 271 12 
 
 311 
 
 2 
 
 228 
 
 440 
 
 Mullee, In re, 7 Blatchf. 23 506 
 
 Muller v. Dows, 94 U. S. 444 2, 26, 27, 
 113, 387, 468 
 Mumford v. Mumford, 1 Gall. 306 64, 191 
 Mumm v. Owens, 2 Dill. 475 410 
 
 Mumma p. Potomac Co., 8 Pet. 281 256 
 Mundy v. Kendall, 23 Fed. R. 591 333 
 Munns v. Dupont, 3 Wash. 31 429 
 
 Munson p. The Mayor, 19 Fed. R. 
 
 313 340 
 
 Murdock p. City of Memphis, 20 Wall. 
 
 590 615 
 
 Murphy v. O'.dis, 2 Moll. 475 2L/U 
 
 Murray v. Benbow, 6 Petersd. Abr. 
 
 559 316 
 
 p. Bogue, 1 Drew. 353 31o 
 
 v. Holden, 2 Fed. R. 740 575 
 
 v. Overstoltz, 8 Fed. R. 110 304 
 
 v. Vanderbilt, 39 Barb. (N. Y.) 
 
 140 345 
 
 Murtagh v. Philadelphia, 1 W. N. C. 
 
 (Pa.) 37 
 
 Muscan H. M. Co. v. American H. M. 
 
 Co., 1 Fisher Pat. Cas. 320 313 
 
 Musgrave v. Parry, 2 Vern. 710 66, 307 
 Mussel v. Morgan, 3 Bro. C. C. 74 526 
 Musselman v. Marquis, 1 Bush (Ky.), 
 
 463 309 
 
 Mussina v. Cavazos, 6 Wall. 355 560, 
 602, 603, 607 
 Mutual L. I. Co. v. Champlin, 21 Fed. 
 
 R. 85 568, 575 
 
 Myers v. Dorr, 13 Blatchf. 22 210, 232 
 — v. Fenn, 5 Wall. 205 290, 291, 292 
 
 v. State, 21 W. L. Bui. 404 504 
 
 Mvrick v. Michigan Cent. R. R. Co., 
 
 107 U. S. 102 557 
 
 N. 
 
 Nabob of Arcot v. East India Co., 3 
 
 Bro. C. C. 292 202 
 
 Nabob of the Carnatic v. East India 
 
 Co., 1 Ves. Jr. 374 244 
 
 Nalder v. Hawkins, 2 M. & K. 243 65, 66 
 Nanney v. Tottey, 11 Price, 117 265 
 
 Napier v. Lady Effingham, 2 P. Wms. 
 
 401 471 
 
 Nashua & L. R. R. Co. v. Boston & L. 
 
 R. R. Co., 19 Fed. R. 804 27 
 
 National Bank v. Bank of Commerce, 
 
 99 U. S. 608 604 
 
 v. Carpenter, 101 U. S. 567 176, 235, 
 
 244 - 1 :_ i 
 
 v. Colby, 21 Wall. 609 ' 256 
 
 v. Insurance Co., 104 U. S. 54 3, 178, 
 
 183, 189, 202, 205, 256, J !■"> 
 
 v. Kimball, 103 U. S. 732 139, 339 
 
 n Omaha, 96 U. H. 737 604 
 
 National F'nrnace Co. v. Moline M. I. 
 
 Works, 18 Fed. R. 863 161, 162 
 
 National Manuf. Co. v. Meyers, 7 Fed. 
 
 R. 355 211
 
 lvi 
 
 TABLE OF CASES. 
 [References are to pages.] 
 
 National Mech. Banking Assoc, v. 
 
 Mariposa Co., 60 Barb. ( N. Y. ) 423 387 
 National Trust Co. v. Miller, 3o N. J. 
 
 Eq. 155 
 Nazro v. Cragin, 3 Dill. 474 
 Neagle, In re, 39 Fed. R. 833 
 Neal v. Foster, 34 Fed. li. 496 
 
 370 
 549 
 501, 503 
 247, 24 9, 
 250, 254 
 577, 578 
 238 
 
 Neale v. Foster, 31 Fed. R. 53 
 
 v. Neales, 9 Wall. 1 
 
 Nebraska City Nat. Bank v. Nebraska 
 
 City H. G. L. Co., 14 Fed. R. 703 174, 
 
 175 
 Needham v. Smith, 2 Vern. 463 517 
 
 Nellis v. McLanahan, 6 Fisher's Pat. 
 
 Cas. 286 125, 131 
 v. Pennock Mauuf . Co., 38 F'ed. 
 
 R. 739 234 
 
 Nelson v. Hennessey, 33 Fed. R. 113 571 
 
 v. Hill, 5 How. 127 123, 126 
 
 v. United States, Pet. C. C. 235 430, 
 
 432 
 Nesmith v. Calvert, 1 Woodb. & M. 
 
 34 96, 397 
 
 „. Sheldon, 6 How. 41 598 
 
 v. , 7 How. 812 443 
 
 Nessle v. Reese, 19 Abb. Pr. (N. Y.) 
 
 240 310 
 
 Neve v. Weston, 3 Atk. 557 196 
 
 Neves v. Scott, 13 How. 268 9, 557 
 
 Newall v. Wilson, 2 De G. M. & G. 
 
 280 
 Newbery v. James, 2 Meriv. 446 
 Newburgh (Earl of) v. Countess of 
 
 Newburgh, 5 Madd. 364 
 Newbury v. Marten, 15 Jur. 166 
 Newby v. Oregon Cent. Ry. Co., 1 
 
 Sawy. 63 191, 204, 205 
 
 Newcomb v. Wood, 97 U. S. 581 559 
 
 New England, The, 3 Sumner, 495 536 
 New England Mut. L. I. Co. v. Odell, 
 
 50 Hun (N. Y.), 279 
 New Hampshire v. Louisiana, 108 U. 
 
 S. 76 
 New Hampshire Land Co. v. Tilton, 
 
 29 Fed. R. 764 495, 530 
 
 New Jersey v. New York, 6 Pet. 323 
 
 312 
 297 
 
 lis 
 
 471 
 
 146 
 
 7S 
 
 New Jersey Cent. R. R. Co. v. Mills, 
 
 113 U. S. 249 
 Newman, Ex parte, 14 Wall. 152 
 v. Davenport, 9 Baxt. (Tenn.) 
 
 538 
 — - v. Moody, 19 Fed. R. 858 
 
 161 
 
 100 
 535 
 
 374 
 
 191, 292, 
 
 293 
 
 New Orleans v. Construction Co., 129 
 U. S. 223 616 
 
 v. Morris, 105 U. S. 600 3, 12, 17 
 
 v. Steamship Co., 20 Wall. 387 507 
 
 v. Winter, 1 Wheat. 91 26 
 
 New Orleans C. & B. Co. v. Stafford 
 
 12 How. 343 95, 96, 102, 103 
 
 New Orleans G. L. & B. Co. v. Dudley, 
 
 8 Paige (N Y.), 452 449 
 
 Newport v. Bury, 23 Beav. 30 381 
 
 New Providence v. Halsey, 117 U. S. 
 
 336 438 
 
 Newton v. Askew, 6 Hare, 319 160 
 
 v. Earl of Egmont, 4 Sim. 574 89 
 
 New York v. Connecticut, 4 Dall. 1 335 
 New York (Mayor of) v. Miln, 9 Pet. 
 
 85 620 
 
 New York B. & P. Co. v. Magowan, 
 
 27 Fed. R. Ill 15 
 v. New Jersey C. S. & R. Co., 32 
 
 Fed. R. 755 496 
 
 New York El. R. R. Co. v. Fifth Nat. 
 
 Bank, 118 U. S. 608 595 
 
 New York G. S. Co. v. Buffalo G. S. 
 
 Co., 20 Fed. R. 505 297 
 
 New York G. & I. Co. v. Memphis 
 
 Water Co., 107 U. S. 205 7, 17 
 
 New York & B. C. P. Co. v. New York 
 
 C. P. Co., 9 Fed. R. 578 413, 414, 418 
 
 Niccol v. Wiseman, 2 Vern. 46 
 Nicholas v. Murray, 5 Sawy. 320 
 
 v. Nicholas, Prec. in Ch. 546 
 
 Nicholls v. Nicholls, 1 Atk. 409 
 v. White, 1 Cranch C. C. 58 
 
 233 
 191 
 303 
 3 
 429, 
 430 
 494 
 160 
 331 
 
 Nichols v. Brunswick, 3 Cliff. 88 
 
 v. Horton, 14 Fed. R. 327 
 
 v. Kearsly, 2 Dick. 645 
 
 Nicholson v. Squire, 16 Yes. 259 284, 287 
 Nickerson v. Atchison, T. & S. F. R. 
 
 R. Co., 30 Fed. R. 85 ; 1 McCra. 383 9, 
 
 441 
 Nielsen, Petitioner, 131 U. S. 176 543, 
 
 544 
 Nixon v. Albion M. I. Co., L. R. 2 Ex. 
 
 338 396 
 
 Noe v. Gibson, 7 Paige (N. Y.), 513 371 
 Noel v. King, 2 Madd. 392 253 
 
 Noonan v. Lee, 2 Black, 499 8 
 
 Norris v. Hassler, 22 Fed. R. 401 121 
 
 v. , 23 Fed. R. 581 493 
 
 v. Jackson, 9 Wall. 125 554, 555 
 
 v. Le Neve, 3 Atk. 26 520 
 
 North i'. Earl of Strafford, 3 P. Wins. 
 
 148 172 
 
 v. Kershaw, 4 Blatchf. 70 84 
 
 North Carolina R. R. Co. v. Drew, 3 
 
 Woods, 691 423, 430, 431 
 
 Northcote v. Northcote, 1 Dick. 22 226 
 Northern Indiana R. R. Co. v. Mich. 
 
 Cent. R. R. Co., 15 How. 233 99 
 
 Northern Pacific R. R. Co. v. Burling- 
 ton & Mo. R. R. Co., 2 McCra. 203 ; 
 
 4 Fed. R. 298 301, 309 
 
 r. Mares, 123 U. S. 710 557 
 
 v. Paine, 119 U. S. 561 529, 585 
 
 v. St. Paul, M. & M. R. R. Co., 2 
 
 McCra. 260 ; 4 Fed. R. 688 339 
 
 Northern R. R. Co. v. Ogdensburg & 
 
 L. C. R. R. Co., 18 Fed. R. 815 247, 
 
 250 
 
 v. , 20 Fed. R. 347 247, 250 
 
 Northey v. Pearce, 1 Sim. & S. 420 326 
 Norton v. European & N. A. Ry. Co., 
 
 32 F'ed. R. 865 438
 
 TABLE OF CASES. 
 
 lvii 
 
 [References are to pages.] 
 
 Norton v. Hepworth, 1 Hall & Tw. 158 
 
 156, 264, 268 
 Norway, The, 1 Ben. 493 428 
 
 , 2 Ben. 121 428 
 
 Norwood, Ex parte, 3 Biss. 504 68, 370 
 Nourse v. Allen, 4 Blatehf. 376 125, 131 
 Noyes v. Canada, 30 Fed. R. 665 162 
 
 v. Willard, 1 Woods, 187 202, 205 
 
 Nudd v. Burrows, 91 U. S. 426 555, 556 
 
 o. 
 
 Oates v. National Bank, 100 U. S. 239 
 Ober v. Gallagher, 93 U. S. 199 27, 33, 
 O'Callaghan v. Cooper, 5 Ves. 117 
 Odorless Excavating Co. v. Lauman, 
 
 12 Fed. R. 788 
 O'Dowd v. Russell, 14 Wall. 402 
 Oelrichs v. Spain, 15 Wall. 211 
 Offeley v. Morgan, Cary, 153 
 Ogden v. Gibbons, Halst. Dig. (N. J.) 
 
 172 
 Ogilvie v. Heme, 13 Ves. 563 
 v. Knox Ins. Co., 2 Black, 539 
 
 v . , 22 How. 380 88, 98, 
 
 Ogle v. Cook, 1 Ves. Sen. 177 
 
 v. Morgan, 1 De G. M. & G. 
 
 359 
 Oglesby v. Attrill, 12 Fed. R. 227 
 
 v. , 14 Fed. R. 214 238, 
 
 Ogsbury v. LaFarge, 2 N. Y. 113 
 O'Hara v. MacConnell, 93 U. S. 150 
 
 65, 78, 80, 99, 152, 164, 165, 168, 169, 
 v. Shepherd, 3 Md. Ch. Dec. 
 
 306 
 Ohio v. Ellis, 10 Ohio, 456 
 Ohio Life Ins. & T. Co. v. Debolt, 16 
 
 How. 416 444, 
 
 Ohio & Miss. R. R. Co. v. Wheeler, 
 
 1 Black, 286 
 Olcott v. Supervisors, 16 Wall. 678 
 Oldfield v. Cobbett, 1 Phill. 613 288, 
 Oldham v. Eboral, Coop. Sel. Cas. 27 
 
 v. Oldham, 7 Ves. 410 
 
 Oliver v. Decatur, 4 Cranch C. C. 
 
 458 179, 
 
 v. , 4 Cranch C. C. 592 
 
 v. Hamilton, 2 Anstr. 453 
 
 v. Piatt, 3 How. 333 87, 123, 126, 
 
 v. , 2 McL. 268 
 
 Olney v. Tanner, 10 Fed. R. 101 68 
 
 Olyphant v. St. Louis O. & S. Co., 22 
 
 Fed. R. 179 
 
 v. , 28 Fed. R. 729 
 
 Omaha Horse Ry. Co. v. Cable T. 
 
 Co., 33 Fed. R. 689 
 0'Mahon3y v. Belmont, 62 N. Y. 133 
 
 y . , 37 N. Y. Super. Ct. 223 
 
 O'Neil v. Kansas City, S. & M. R. Co., 
 31 Fed. R. 663 
 
 444 
 587 
 496 
 
 312 
 599 
 191 
 180 
 
 240 
 
 199 
 88, 
 290 
 290 
 450 
 
 516 
 524 
 294 
 446 
 
 601 
 
 273 
 126 
 
 558 
 
 27 
 557 
 289 
 267 
 392 
 
 205 
 263 
 343 
 127 
 87 
 370, 
 376 
 
 350 
 
 354 
 
 272 
 
 386 
 386 
 
 493 
 
 Ord v. Huddleston, 2 Dick. 510 191 
 
 v. Noel, 6 Madd. 127 521 
 
 Oregon Iron Works, In Re, 4 Sawy. 
 
 169 ; 17 N. B. R. 404 17 
 
 Oregon & T. Co. v. Northern Pac. 
 
 Ry. Co., 32 Fed. R. 428 274 
 
 O'Reilly v. Edrington, 96 U. S. 724 604 
 Orendorf v. Budlong, 12 Fed. R. 24 173 
 Ormsby v. Union Pac. R. R. Co., 4 
 
 Fed. R. 706 325 
 
 Orr v. Littlefield, 1 Woodb. & M. 13 
 
 312 336 
 
 v. Merrill, 1 Woodb. & M. 376 ' 336 
 
 Ortley v. Messere, 7 Johns. Ch. 
 
 (N. Y.) 139 67 
 
 Orvis v. Powell, 98 U. S. 176 9, 473 
 
 Osborn v. Bank of U. S., 9 Wheat. 
 
 738 4, 25, 75, 98, 305, 323, 396 
 
 Osborne v. Barge, 30 Fed. R. 805 247. 
 
 249, 251 
 
 v. Harvey, 1 Y. & C. N. R 116 377 
 
 Osburne v. Barter, Choyce Cas. in 
 
 Ch. 176 308 
 
 Osgood v. Chicago, D. & V. R. R. Co., 
 
 6 Biss. 330 574, 575 
 
 Overton v. Memphis & L. R. R. Co., 
 
 10 Fed. R. 866 378 
 
 Owen v. Curzon, 2 Vern. 237 259,271 
 
 v. Homan, 4 H. L. C. 997 346 
 
 v. Thomas, 3 M. & K. 353 396 
 
 Owens v. Ohio Cent. R. R. Co., 20 
 
 Fed. R. 10 11 
 
 Owing's Case, 1 Bland (Md.), 370 67, 
 
 476 
 Owings v. Kincannon, 7 Pet. 399 598 
 
 P. 
 
 Paca v. Dutton, 4 Mo. 371 405 
 
 Pacific Nat. Bank v. Mixter, 124 U. 
 
 S. 721 549 
 
 Pacific R. R. v. Ketchum, 101 U. S. 
 
 289 26, 95, 437, 601 
 
 Pacific Railroad Removal Cases, 115 
 
 U. S, 1 25 
 
 Pacific R. R. of Mo. v. Atlantic & P. 
 
 R. R. Co., 20 Fed. R. 277 14, 88, 125 
 
 v. Ketchum, 95 U. S. 1 245 
 
 v. Missouri Pac. R. R. Co., Ill 
 
 U. S. 505 28, 110, 111, 116, 156, 171, 
 172, 177, 181, 199, 397, 526 
 v . 1 3 Fed. R. 772 ; 1 McCra. 
 
 647 150, 1".7 
 
 Packer v. Nixon, 10 Pet. 408 597 
 
 Packet Co. v. Catlettsburg, 105 U. 
 
 S. 559 171,172 
 
 Packington v. Packington, 1 Dick. 
 
 101 337 
 
 Pagan v. Sparks, 2 Wash. 325 86 
 
 Page v. Fall Kiver, W. & P. R. Co., 
 
 31 Fed. R. 257 27 
 v. Holmes B. A. Tel. Co., 18 
 
 Blatehf. 118; 2 Fed. R. 330 290, 291, 
 312, 515, 516, 520
 
 lviii 
 
 TABLE OF CASES. 
 [References are to pages.] 
 
 Paine v. Central Vt. R. K. Co., 118 
 
 U. S. 152 555 
 
 Palk v. Lord Clinton, 12 Ves. 63 137 
 
 Palmer v. Foote, 7 Paige (N. Y.), 
 , 437 89 
 
 v. Parkhurst, 1 Chan. Cas. 112 G7 
 
 v. Stevens, 100 Mass. 461 93, 98 
 
 v. Travers, 20 Fed. R. 501 324 
 
 v. Vaughan, 3 Swanst. 173 356 
 
 v. Walesby, L. R. 3 Ch. 732 435 
 
 Pannell v. Tayler, Turn. & R. 96 393 
 
 Pannill v. Eliason, 3 Cranch C. C. 
 
 358 426 
 Parcels v. Johnson, 20 Wall. 653 614 
 Paris, Ex parte, 3 Woodb. & M. 227 489 
 Parker, Ex parte, 120 U. S. 737 534 
 , Petitioner, 131 U. S. 221 
 
 534, 537, 
 539 
 
 285 
 
 v. Bigler, 1 Fisher's Pat. Cas. 
 
 493 
 
 371 
 
 473 
 
 283 
 
 11 
 
 330 
 252 
 450 
 
 122 
 
 428 
 
 v. Browning, 8 Paige (N. Y.), 
 
 388 
 
 v. Dacres, 120 U S. 43 
 
 v. Francis, 9 Jur. GIG, n. 
 
 v. Hall, 2 Fisher's Pat. Cas. 02 
 
 v. Hallock, 2 Fisher's Pat. Cas. 
 
 543, n. 10 
 
 v. Hawk, 2 Fisher's Pat. Cas. 58 11 
 
 w. Hotchkiss, 1 Wall. Jr. 263 160, 
 
 412 
 v. Judges of Circuit Court, 12 
 
 Wheat. 561 
 v. Leigh, 6 Madd. 115 
 
 v. Morrell, 2 Phill. 453 
 
 i7. Nightingale, 6 Allen (Mass.), 
 
 341 
 17. Nixon, Baldw. 291 
 
 v. Sears, 1 Fisher Pat. Cas. 
 
 93 312, 332 
 v Winnipiseogee Lake C. & W. 
 
 Co., 2 Black, 545 191, 308 
 
 Parkersburg v. Brown, 108 U. S. 487 17 
 Parkhurst v. Kinsman, 2 Blatchf. 72 273 
 
 v. , 2 Blatchf. 78 333, 345 
 
 Parkinson v. Laselle, 3 Sawy. 330 314 
 
 v. Wentworth, 11 Mass. 26 64 
 
 Parks, Ex parte, 93 U. S. 18 542, 543 
 
 v. Booth, 102 U. S. 96 214 
 
 Parmley v. Railroad Cos., 3 Dill. 25 339 
 Parrot v. Treby, Prec. in Ch. 254 
 Parrott v. Alabama G. L. I. Co., 5 
 
 Fed. R. 3!>1 
 Parsons v. Bedford, 3 Pet. 433 
 v. Charter Oak L. I. Co., 31 Fed. 
 
 R. 305 
 
 r. Howard, 2 Woods, 1 96, 104 
 
 17. Lyman, 4 Blatchf. 432 84, 121 
 
 v. Robinson, 122 U. S. 112 467 
 
 Partee v. Thomas, 11 Fed. R. 769 238 
 Partridge v. Hay craft, 11 Ves. 570 134, 
 
 225, 227 
 
 v. Usborne, 5 Russ. 195 
 
 Paschal, Inre, 10 Wall. 483 
 Patapsco, The. 12 Wall. 451 
 Patch i;. Ward, L. R. 3 Ch. 203 
 
 478 
 
 161 
 
 5 
 
 347 
 
 521, 522 
 
 502, 504 
 
 595 
 
 472 
 
 Patrick v. Isenhart, 20 Fed. R. 339 175 
 Patriotic Bank v. Bank of Washing- 
 ton, 5 Cranch C. C. 602 217, 225 
 Patterson v. Stapler, 7 Fed. R. 210 84, 
 
 239 
 540 
 426 
 570 
 
 o. United States, 2 Wheat. 221 
 
 Paul v. Lowry, 2 Cranch C. C. 628 
 
 v. Virginia, 8 Wall. 168 
 
 Paving Co. v. Mulford, 100 U. S. 147 596 
 Pawlet v. Clark, 9 Cranch, 292 27 
 
 Paxton ». Douglas, 8 Ves. 520 328 
 
 o. , 19 Ves. 225 177 
 
 Payne v. Hook, 7 Wall. 425 8, 11, 12, 96, 
 
 104, 123 
 
 Peabody v. Norfolk, 98 Mass. 452 
 Peachie v. Twyecrosse, Cary, 113 
 Peake v. Highfield, 1 Russ. 559 4 
 Peale v. Phipps, 8 How. 256 
 
 v. , 14 How. 368 
 
 Pearne v. Lisle, Ambl. 75 
 Pearse v. Brook, 3 Beav. 337 
 Pearson v. Ward, 1 Cox Eq. 177 
 Peaslee v. Haberstro, 15 Blatchf. 472 
 Peay i7. Schenck, Woolw. 175 
 Peck, Ex parte, 3 Blatchf. 113 
 
 297 
 
 180 
 
 448 
 
 603 
 
 11 
 
 389 
 
 408 
 
 4 
 
 531 
 
 251 
 
 413, 
 
 424 
 
 216, 222 
 
 622 
 
 411 
 
 v. Peck, Mosely, 45 
 
 v. Sanderson, 18 How. 42 
 
 Pedrick v. White, 1 Met. (Mass.) 76 
 Pelham v. Rose, 9 Wall. 103 
 Pelham (Lord) v. Duchess of New- 
 castle, 3 Swanst. 289, n. 
 
 v. , 3 Swanst. 293, n. 
 
 v. Lord Harlev, 3 Swanst. 291, n. 510 
 
 Pelton ». National Bank, 101 U. S. 
 
 276 
 597 
 
 510 
 510 
 
 143 
 Pelzer Manuf. Co. v. St. Paul F. & M. 
 
 I. Co., 40 Fed. R. 185 
 Pendleton v. Evans, 4 Wash. 391 
 
 v. Fay, 3 Paige (N. Y.), 204 
 
 301 
 
 586 
 1G7, 
 168 
 268, 
 273 
 
 Pen fold v. Ramsbottom, 1 Swanst. 
 
 552 184 
 
 Peninsular Iron Co. v. Stone, 121 U. 
 
 S. 631 481, 590 
 Penn v. Calhoun, 121 U. S. 251 349 
 v. Lord Baltimore, 1 Ves. Sen. 
 
 444 2, 468 
 
 Pennoyer v. Neff, 95 U. S. 714 199 
 
 Pennsylvania v. Wheeling & B. 
 
 Bridge Co., 13 How. 518 308 
 
 Pennsylvania R. R. Co. v. St. Louis, 
 
 A. & T. H. R. R. Co., 118 U. S. 
 
 290 14, 27 
 
 Penny v. Watts, 2 Phill. 149 103 
 
 Pentlarge v. Beeston, 1 Fed. R. 862 333 
 
 v. Kirby, 20 Fed. R. 898 480 
 
 w. Pentlarge, 19 Fed. R. 817 200, 
 
 475 
 
 ». , 22 Fed. R. 412 200, 275, 
 
 475 
 
 v. , 14 Reporter, 579 324 
 
 Pentleton v. Forbes, 1 Cranch C. C. 
 
 507 426
 
 TABLE OF CASES. 
 [References are to pages.] 
 
 lix 
 
 197 
 506 
 
 388 
 
 People v. Albany & Vt. R. R. Co., 24 
 
 N. Y. 261 299 
 
 v. Brower, 4 Paige (N. Y.), 405 293, 
 
 505 
 
 v. Cooper, 22 Hun (N. Y), 515 
 
 v. Craft, 7 Paige (N. Y.), 325 
 
 v. Globe Mat. L. I. Co., 57 How. 
 
 Pr. (N. Y.) 481 
 v. National Trust Co., 82 N. Y. 
 
 283 372, 374 
 
 v. Norton, 1 Paige (N. Y.), 17 378 
 
 v. Rensselaer Common Pleas, 6 
 
 Wend. (N. Y.) 513 409 
 v. Universal L. I. Co., 30 Hun 
 
 (N. Y.), 142 374 
 
 People's Bank v. Calhoun, 102 U. S. 
 
 256 437, 570 
 
 Peper v. Fordyce, 119 U. S. 469 480, 590 
 Perine v. Dunn, 4 Johns. Ch. (N. Y.) 
 
 140 
 
 v. Hart, 11 Wheat. 237 
 
 v. Hendryx, 23 Fed. R. 418 
 
 472 
 
 Perkins v. Fourniquet, 14 How. 328 564, 
 
 624 
 597 
 585, 
 586 
 275 
 535 
 139 
 125, 131 
 265 
 
 v. , 31 Fed. R. 522 
 
 Perry, Ex parte, 102 U. S. 183 
 
 v. Carr, 41 N. H. 371 
 
 v. Corning, 7 Blatchf. 195 
 
 v. Jenkins, 1 M. & Cr. 122 
 
 v. Mechanics' Mut. Ins. Co., 11 
 
 Fed. R. 478 530 
 
 v. Parker, 1 Woodb. & M. 280 326, 
 
 329 
 
 v. Phelips, 17 Ves. 173 516, 517, 
 
 518, 519, 520, 524 
 
 v. Sharpe, 8 Fed. R. 15 
 
 v. Truefit, 6 Beav. Gti 
 
 v. Walker, 4 Beav. 452 
 
 Person v. Greer, 66 N. Y. 124 
 Peters v. Prevost, 1 Paine, 64 
 
 v. Robinson, 1 Dick. 116 
 
 Pettibone v. Derringer, 4 Wash. 215 
 Peyton v. Robertson, 9 Wheat. 527 
 17. Veitch, 2 Cranch C. C. 123 
 
 304 
 317 
 283 
 160 
 8, 427 
 257 
 425 
 596 
 424, 
 426 
 Pfemschmidt v. Kelly Mercantile Co., 
 
 32 Fed. R. 667 514 
 
 Phelps v. Canada Cent. R. R. Co., 19 
 Fed. R. 801 588 
 
 v. Elliott, 26 Fed. R. 881 685, 586 
 
 v. , 3d Fed. R. 396 244 
 
 v. McDonald, 99 U. S. 298 133 
 
 v. Oaks, 117 U. S. 236 27, 529 
 
 v. O'Brien County, 2 Dill. 518 9 
 
 Philadelphia Fire Assoc, v. New 
 
 York, 119 U. S. 110 570,615 
 
 Philippi v. Philippe, 115 U. S. 151 176 
 Philips v. Carew, 1 P. Wms. 117 142, 415 
 
 v. Derbie, 1 Dick. 98 259 
 
 v. Langhorn, 1 Dick. 148 338 
 
 Phillips v. Neffley, 117 U. S. 665 561, 562 
 
 v. Prentice, 2 Hare, 542 408 
 
 Phoenix Ins. Co., Ex parte, 117 U. S. 
 367 596 
 
 Phoenix Ins. Co., Ex parte, 118 U. S. 
 610 533 
 
 v. Wulf, 1 Fed. R. 775 151, 152 
 
 Piatt v. Oliver, 1 McL. 295 203 
 
 v. Vattier, 9 Pet. 405 236 
 
 Pickard v. Mattheson, 7 Ves. 293 513 
 
 Pickering v. Bishop of Ely, 2 Y. & C. 
 
 Ch. Cas. 249 319 
 
 Pickett's Heirs v. Legerwood, 7 Pet. 
 144 603, 607 
 
 v. , 8 Pet. 144 562 
 
 Picquet v. Swan, 5 Mason, 35 152, 158 
 
 v. , 5 Mason, 501 158 
 
 Pictet A. I. Co. v. New York I. M. Co., 
 
 12 Fed. R. 816 435 
 
 Piek v. Chicago & N. W. Ry. Co., 6 
 
 Biss. 177 322 
 
 Pierce v. Cox, 9 Wall. 786 604, 605 
 
 v. Webb, 3 Bro. C. C. 15, n. 4 
 
 v. West's Ex'rs, Pet. C. C. 351 232 
 
 v. , 3 Wash. 354 236 
 
 Pierpont v. Fowle, 2 Woodb. & M. 23 311, 
 
 313 
 Pierson v. Robinson, 3 Swanst. 139, n. 
 Pieters v. Thompson, G. Coop. 294 
 Pigot v. Stace, 2 Dick. 496 
 Pike v. Nicholas, L. R. 5 Ch. 251 
 Pilla v. German School Assoc, 23 
 
 Fed. R. 700 
 Pillow v. Pillow, 5 Yerg. (Tenn.) 420 137 
 Pincers v. Robertson, 24 N. J. Eq. 348 224 
 Pindar v. Smith, Madd. & G. 48 451 
 
 Pine Grove v. Talcott, 19 Wall. 666 557 
 Pinkerton v. Barnsley Canal Co., 3 
 
 Y. & J. 277, n. 
 Pinkus v. Peters, 5 Beav. 253 
 Piquignot v. Pennsylvania R. R. Co., 
 
 16 How. 104 
 Pirie v. Tvedt, 115 U. S. 41 
 Pitcher v. Helliar, Dick. 580 
 
 v. Hennessey, 48 N. Y. 415 
 
 Pitkin County Mining Co. v. Markell, 
 
 33 Fed. R. 386 
 
 85 
 439 
 205 
 315 
 
 586 
 
 406 
 85 
 
 591 
 
 571 
 
 344 
 
 3 
 
 30 
 
 502, 504 
 
 523 
 
 359 
 
 338 
 
 Pitman, Re, 1 Curt. 186 
 
 Pitt v. Earl of Arglass, 1 Vern. 441 
 
 r v. Snowden, 3 Atk. 750 
 
 Pitts, In re, 9 Fed. R. 542 
 
 v. Edmonds, 2 Fisher Pat. Cas. 
 
 52 213 
 
 v. Powledge, 56 Ala. 147 247 
 
 Piatt v. Jones, 96 N. Y. 24 356 
 
 v. Mead, 9 Fed. R. 91 116, 172 
 
 Plitt, Ex parte, 2 Wall. Jr. 453 488, 497 
 Plunket v. Person, 2 Atk. 51 103 
 
 Plymouth (Countess of) v. Bladon, 2 
 
 Vern. 32 440 
 
 Plymouth Min. Co. v. Amador Canal 
 
 Co., 118 U. S. 264 571 
 
 Poindexter !•. Greenhow, 114 U. S. 270 72 
 Polk's Lessee v. Wendal, 9 Cranch, 
 
 87 443 
 
 Pollard r. Bailey, 20 Wall. 526 98 
 
 v. Vinton, 105 U. S. 7 557 
 
 Pollers v. Black River Imp. Co., 113 
 
 U. S. 81 002, 614
 
 Ix 
 
 TABLE OF CASES. 
 [References are to pages.] 
 
 Pomroy v. Harter, 1 McL. 448 
 Pond v. Vermont Valley R. R. Co. 
 
 12 Blatchf. 280 
 Poole, In re, 2 Mac Ar. (I). C.) 583 
 
 v. Franks, 1 Moll. 78 
 
 v. Thatcherdeft, 19 Fed. R. 49 
 
 Poor v. Carleton, 3 Sumn. 70 
 
 349 
 100 
 
 64 
 
 468 
 
 490 
 
 437 
 545 
 496 
 29 
 332, 335, 
 336 
 
 Poppenhusen v. Falke, 4 Blatchf. 493 123, 
 
 131, 312 
 v. New York G. P. Comb Co., 4 
 
 Blatchf. 184 ; 2 Fisher Pat. Cas. 74 220, 
 
 322 
 Porter v. Pittsburgh B. S. Co., 120 
 
 U. S. 649 
 
 v. Sabin, 36 Fed. R. 475 
 
 Portland (Countess of) v. Prodgers, 2 
 
 Vern. 104 
 Port Royal R. R. Co. v. Hammond, 
 
 58 Ga. 523 
 Portugal (Queen of) v. Glyn, 7 CI. & 
 
 F. 466 417 
 
 Post v. Supervisors, 105 U. S. 667 443, 
 
 558 
 v. Toledo, C. & St. L. R, R. Co., 
 
 144 Mass. 341 ; 4 New Eng. Rep. 221 8 
 Postmaster-General v. Rice, Gilp. 554 400 
 
 v. Trigg, 11 Pet. 173 537 
 
 Potter v. Gardner, 12 Wheat. 499 85 
 
 v. Mack, 3 Fisher Pat. Cas. 428 340 
 
 v. National Bank, 102 U. S. 163 
 
 v. Potter, 1 Ves. Sen. 274 
 
 v. Third Nat. Bank, 13 Chic. L. 
 
 N. 102 
 
 v. Whitney, 1 Lowell, 87 
 
 Potts v. Hahn, 32 Fed. R. 660 
 
 v. Leighton, 15 Ves. 273 
 
 v. Warwick & B. C N. Co., Kay, 
 
 143 
 Poultney v. Citv of Lafayette, Ex 
 
 parte, 12 Pet. 472 57, 163, 210, 436, 
 
 537, 538 
 Powder Co. v. Powder Works, 98 
 
 U. S. 126 
 Powell v. Kane, 5 Paige (N. Y.), 265 
 
 v. Powell, Madd. & G. 53 
 
 v. Waldron, 89 N. Y. 328 
 
 v. Wright, 7 Beav. 449 
 
 Power v. Semmes, 1 Cranch C. C. 
 
 247 
 Powys v. Blagrave, 18 Jur. 462 
 Pratt v. Fitzhugh, 1 Black, 271 
 v. Northam, 5 Mason, 95 
 
 411 
 
 395 
 
 410 
 312 
 123 
 383 
 
 380 
 
 185 
 408 
 471 
 356 
 85 
 
 412 
 
 380, 381 
 
 595 
 
 8, 10, 12, 
 
 197 
 
 Prescott, Ex parte, 2 Gall. 146 488 
 
 Preston v. Walsh, 10 Fed. R. 315 99, 337, 
 
 442 
 Prevost v. Gorrell, 5 W. N. C. (Pa.) 
 
 151 502 
 
 Price v. Abbott, 17 Fed. R. 506 342 
 
 v. Berrington, 3 Macn. & G. 486 
 
 119, 448 
 
 v. Coleman, 21 Fed. R. 357 116, 124, 
 
 127 
 v. ■ , 22 Fed. R. 694 481 
 
 Price v. Morris, 5 McL. 4 426 
 
 v. Price, 2 Smith's Ch. Pr. 76 448, 
 
 449 
 Prince v. Towns, 33 Fed. R. 161 499 
 
 Prince Albert v. Strange, 1 Macn. & 
 
 G. 25 298, 316, 319 
 
 Pritchard v. Fleetwood, 1 Meriv. 54 344 
 
 v. Quinchant, Ambl. 147 234 
 
 Proctor v. Brill, 16 Fed. R. 791 480 
 
 Prout 0. Roby, 15 Wall. 471 97, 100 
 
 Prouty v. Draper, 2 Story, 199 492 
 
 Providence & N. Y. S. S Co. v. Hill 
 
 Manuf. Co., 109 U. S. 578 304 
 
 Provident Savings Soc. v. Ford, 114 
 
 U. S. 635 25, 162 
 
 Prudential Assur. Co. v. Knott, L. R. 
 
 10 Ch. 142 
 
 0. Thomas, L. R. 3 Ch. 74 
 
 Pruen v. Lunn, 5 Russ. 3 
 
 Public G. & S. Exchange ?>. Western 
 
 Un. Tel. Co., 16 Fed. R. 289; 11 
 
 Biss. 568 
 
 Public Schools v. Walker, 9 Wall. 603 623 
 Puetz v. Bransford, 31 Fed. R. 458 214, 
 
 254 
 
 „. ( 32 Fed. R. 318 
 
 Pullan v. Kinsinger, 2 Abb. U. S 
 
 323 
 143 
 
 266 
 
 574 
 
 94 
 
 Pulliam 0. Christian, 6 How. 209 
 0. Pulliam, 10 Fed. R. 53 
 
 25 
 
 322, 
 
 323 
 
 467 
 
 10, 197, 
 
 442, 443 
 
 Pullman P. C. Co. v. Speck, 113 U. S. 
 84 575 
 
 v. Texas & P. Ry. Co., 11 Fed. 
 
 R, 625; 4 Woods, 317 324 
 
 Pulteney v. Shelton, 5 Ves. 147 283 
 
 Purcell v. Miner, 4 Wall. 519 520 
 
 Purdy 0. Rapalye, N. Y. Chancery, 
 
 1835 386 
 
 Purefoy v. Purefoy, 1 Vern. 29 175 
 
 Pusey v. Pusey, 1 Vern. 273 17, 319, 325 
 Putnam v. Day, 22 Wall. 60 519 
 
 v. Ingraham, 114 U. S. 57 571 
 
 v. New Albany, 4 Biss. 365 2, 224, 
 
 249, 251, 252 
 
 Q- 
 
 Quackenbush v Leonard, 10 Paige 
 
 (N. Y.), 131 257 
 
 Quarles v. Quarles, 2 Munf. ( Va.) 321 476 
 Queen of Portugal v. Glyn, 7 CI. & F. 
 
 466 417 
 
 Quincy v. Steel, 120 U. S. 241 20, 128 
 
 Quirolo v. Ardito, 1 Fed. R. 610 445 
 
 Rabaud v. De Wolf, 1 Paine, 580 
 Radcliffe, Ex parte, 1 Jac. & W. 639 
 
 Radford v. Folsom, 14 Fed. 
 0. , 123 U. S. 725 
 
 27 
 344, 
 376 
 97 194 
 
 602, 604
 
 TABLE OF CASES. 
 [References are to pages.] 
 
 lxi 
 
 Raffety v. King, 1 Keen, 601 107 
 
 Raht v. Attrill, 106 N. Y. 423 355 
 
 Railroad Co., Ex parte, 95 U. S. 221 253, 
 
 269, 270, 434, 534, 605 
 
 v. Bradleys, 7 Wall. 575 407, 605 
 
 v. Ellerman, 105 U. S. 166 l'J, 299, 
 
 v. Falconer, 103 U. S. 821 
 
 v. Gladmon, 15 Wall. 401 
 
 v. Harris, 12 Wall. 65 
 
 v. Howard, 7 Wall. 392 
 
 v. Koontz, 104 U. S. 5 
 
 v. Lockwood, 17 Wall. 357 
 
 v. National Bank, 102 U. S. 
 
 11 
 
 300 
 
 443 
 
 557 
 
 27 
 
 90 
 
 584 
 
 557 
 
 444, 
 
 557 
 
 90, 104 
 
 410 
 
 Reay v. Raynor, 19 Fed. R. 308 237, 238, 
 
 133 
 
 315 
 315 
 369 
 275 
 16 
 
 v. Orr, 18 Wall. 471 
 
 v. Pollard, 22 Wall. 341 
 
 v. Swasey, 23 Wall. 405 467 
 
 v. Trook, 100 U. S. 112 595 
 
 v. Wiswall, 23 Wall. 507 534 
 
 Railroad Companies v. Chamberlain, 
 
 6 Wall. 746 28 
 
 Railway Co., Ex parte, 101 U. S. 711 535 
 
 , Ex parte, 103 U. S. 794 534 
 
 v. Allinsj, 90 U. S. 403 434 
 
 v. Ramsey, 22 Wall. 322 572 
 
 v. Whitton's Admr., 13 Wall. 270 8, 
 
 27 
 Railway R. M. Co. v. North Hudson 
 
 Co. R. Co., 26 Fed. R. 411 514 
 
 Rainer v. Ilaynes, Hempst. 689 424 
 
 Randall . Baltimore & O. R. R. Co., 
 
 109 U. S. 478 556 
 
 v. Howard, 2 Black, 585 133, 176, 
 
 108 
 
 v. Venable, 17 Fed. R. 163 552 
 
 Randolph v. Barrett, 10 Pet. 138 239 
 v. Dickerson, 5 Paige (N. Y.) p 
 
 517 268 
 
 v. Robinson, 2 N. J. L. J. 171 251 
 
 Rankin v. Huskisson, 4 Sim. 13 324 
 
 v. State, 11 Wall. 380 614 
 
 Ransom v. Davis, 18 How. 295 88, 291 
 Rantin v. Robertson, 2 Strobh. Law 
 
 (S. C), 366 
 Rashlekh v. Master, 1 Ves. Jr. 201 
 Ratcliffe v. Winch, 16 Beav. 576 
 Rateau v. Bernard, 3 Blatchf. 244 
 
 171 
 496 
 328 
 26, 
 306 
 290 
 
 Rattray v. George, 16 Ves. 232 
 Rawlings v. Lambert, 1 Johns. & H 
 
 458 
 Rawlins v. Dalton, 2 Y. & C. 447 
 Ray v. Knowlton, 11 Biss. 360 
 
 v. Law, 3 Cranch, 1 79 
 
 Rayner v. Julian, 2 Dick. 677 
 
 Madd. 144, n. 
 
 Raynes v. Wise, 2 Meriv. 472 
 
 Read v. Consequa, 4 Wash. 174 156, 165, 
 
 237, 334, 338 
 
 p. ,4 Wash. 335 224, 225 
 
 v. Miller, 2 Biss. 12 10 
 
 v. Read, 1 Ch. Cas. 115 389 
 
 Reay r. Berlin & J. Env. Co., 30 Fed. 
 
 R. 448 237 
 
 338 
 
 196 
 480 
 467, 519 
 5 
 181 
 390 
 
 239 
 305 
 10 
 605 
 546 
 170 
 
 Redding v. Wilkes, 3 Bro. C. C. 401 
 Reed v. Carusi, Tanev, 72 
 
 17. Holliday, 19 Fed. R. 325 
 
 Reeder v. Seely, 4 Cow. o is 
 Reedy v. Scott. 23 Wall. 352 
 Rees v. Watertown, 19 Wall. 107 
 Reese River S. M. Co. v. Atwell, 
 
 L. R. 7 Eq. 317 
 Reeve v. Parkins, 2 Jac. & W. 390 
 Reeves v. Vinacke, 1 McCra. 213 
 Reily v. Lamar, 2 Cranch, 344 
 Reinitz, In re, 39 Fed. R. 204 
 Reinstadler v. Rehls, 33 Fed. R. 308 
 Reissner v. Anness, 12 Off. Gaz. 842 ; 
 
 3 Bann. & A. Pat. Cas. 148 188, 189, 
 
 202, 205 
 
 v. , 13 Off. Gaz. 7 209 
 
 Relief F. I. Co. v. Shaw, 94 U. S. 574 3 
 Removal Cases, 100 U. S. 457 26, 95, 573, 
 
 574, 580 
 Remsen v. Rerasen, 2 Johns. Ch. 
 
 (N. Y.) 495 
 Renner v. Howland, 2 Cranch C. C. 
 
 441 
 Rensselaer & S. R. R. Co. v. Benning- 
 ton & R. R. II. Co., 18 Fed. R. 617 
 Reubens v. Joel, 13 N. Y. 488 
 Reyburn v. Consumers' G. F. & L. Co., 
 
 29 Fed. R. 561 350, 
 Reynes v. Dumont, 130 U. S. 354 178, 
 Reynolds, In re, Shelf, on Lun. 417 
 v. Crawfordsville First Nat. Bank 
 
 112 U. S. 405 9, 231, 232, 
 
 Reynoldson v. Perkins, Ambl. 564 
 Rlunelander v. Sanford, 3 Day (Conn.) 
 
 279 
 Rhoades v. Selin, 4 Wash. 715 428, 
 
 Rhode Island v. Massachusetts, 12 
 Pet. 657 77 
 
 ,.. 13 Pet. 23 162, 234 
 
 v. , 14 Pet. 210 188, 189, 204, 
 
 20(3, 207, 209, 210,211 
 Ribon v. Railroad Cos., 10 Wall. 446 99, 
 
 100 
 Ricard v. New Providence, 5 Fed. R. 
 
 433 530 
 
 Ricardo v. Garcias, 12 CI. & Fin. 368 199 
 Rich v. Bray, 37 Fed. R. 273 24 
 
 v. Ricketts, 7 Blatchf. 230 11 
 
 Richards v. Evans, 1 Ves. Sen. 39 114 
 
 v. Mackall, 124 U. S. 183 133 
 
 v. Salter, 6 Johns. Ch. (N. Y.) 
 
 445 143 
 
 Richardson v Boston, 1 Curt. 250 567 
 
 v. Golden, 3 Wash. 109 430 
 
 v. Richardson, 5 Paige (N. Y.), 58 290 
 
 v. Ward, 6 Madd. 260 386 
 
 Richmond, The, 9 Fed. R. 863 442 
 
 v. Irons, 121 U. S. 27 239 
 
 v. Tayleur, 1 P. Wms. 734 526 
 
 Rico v. Gualtier, 3 Atk. 501 392 
 
 Riddle v. Mandeville, 6 Cranch, 86 477 
 
 373 
 
 425 
 
 303 
 5 
 
 355 
 
 191 
 
 67 
 
 558 
 
 78 
 429, 
 431
 
 lxii 
 
 TABLE OF CASES. 
 [Kufirences are to pages.] 
 
 Riddle v. New York, L. E. & W. R. Co., 
 39 Fed. R. 290 30, 153, 
 
 Ridgway v. Wharton, 3 De G. M. & 
 G. G77 
 
 Ridout v. Earl of Plymouth, 1 Dick. 
 
 154 
 
 198 
 
 382 
 
 Rigby v. Rigby, 9 Beav. 311 222 
 
 Riges v. Johnson County, 6 Wall. 166 536, 
 
 538, 539 
 Rindskopf v. Platto, 29 Fed. R. 130 418 
 Ringo v. Binns, 10 Pet. 269 100 
 
 Rio Grande, The, 19 Wall. 178 540, 595 
 Ritchie v. Avlwin, 15 Ves. 79 241 
 
 Robb v. Connolly, 111 U. S. 624 545 
 
 Robbins v. Freeland, 14 Int. Rev. Rec 
 
 28 
 Roberdeau v. Rous, 1 Atk. 544 
 Roberts, Ex parte, 6 Pet. 216 
 
 , In re, 24 Fed. R. 132 
 
 v. Cooper, 20 How. 467 
 
 v. Nelson, 8 Blatchf. 74 
 
 v. Reilly, 116 U. S. 80 
 
 v. Williams, 12 East, 33 
 
 Robertson v. Carson, 19 Wall. 94 
 
 323 
 172 
 535 
 544 
 623 
 587 
 545, 549 
 114 
 27, 84, 
 
 85, 101, 104 
 
 v. Hill, 6 Fisher Pat. Cas. 465, 312 
 
 Robinson, Ex parte, 19 Wall. 505 503, 535 
 
 , Ex parte, 6 McL. 355 545 
 
 17. Anderson, 121 U. S. 522 438 
 
 v. Campbell, 3 Wheat. 212 6 
 
 i?. Cathcart, 2 Cranch C. C. 590 152, 
 
 r. Hadley, 11 Beav. 614 
 v. Lord Byron, 1 Bro. C. 
 
 318, 325 
 
 378, 379 
 
 C. 588 4, 
 
 324 
 
 410 
 
 Rogers L. & M. Works v. Erie Ry. 
 
 Co., 20 N. J. Eq. 379 325, 326 
 
 Rolston v. Missouri Fund Comm'rs, 
 
 120 U. S. 390 
 Romaine v. Union Ins. Co., 28 Fed. 
 
 R. 625 
 Roosevelt v. Columbus, C. &I. C. Ry. 
 
 Co., U. S. C. C, N. D. 111., Nov. 15, 
 
 1882 
 
 Root v. Railway Co., 105 U. S. 189 6, 7, 
 
 14, 15 
 Roscius, The, 1 Brown's Adm. 442 426 
 Rose v. Calland, 5 Ves. 186 479 
 
 v. Gannel, 3 Atk. 439 
 
 v. Woodruff, 4 Johns. Ch. (NY.) 
 
 547 
 Rosenbach v. Drevfuss, 1 Fed. R. 391 
 
 v. , 2 Fed. R. 23 
 
 Rosenbaum v. Bauer, 120 U. S. 450 
 v. Council Bluffs Ins. Co., 37 
 
 Fed. R, 724 
 Ross v. Prentiss, 3 How. 771 23, 590 
 
 v. , 4 McL. 106 520 
 
 v. Union Pacific R. R. Co., 1 
 
 Woolw. 26 300 
 
 Rosse v. Rust, 4 Johns. Ch. (N. Y.) 
 
 300 445, 446 
 
 Roundell v. Currer, 6 Ves. 250 257 
 
 Roundtree v. McLain, Hempst. 245 
 Rourke v. McLaughlin, 38 Cal. 196 
 Rowan v. Runnels, 5 How. 134 
 Rowell v. Hill, 28 Fed. R. 433 
 Rowland, Ex parte, 104 U. S. 604 
 
 v. Mandell, 3 Cliff . 169 
 
 v. National S. Y. Co., 12 Fed. R. 
 
 361 ; 20 Blatchf. 513 162 
 
 v. Norton, 10 Beav. 484 439 
 
 v. Philadelphia & R. R. Co., 28 
 
 Fed. R. 340 413 
 
 v. Satterlee, 3 Sawy. 134 231, 279, 
 
 280 
 
 v. Thompson, 2 Ves. & B. 118 
 
 Robison v. Hardy, 38 Fed. R. 49 
 
 Robson v. Dodds, L. R. 8 Eq. 301 
 Roche v. Morgell, 2 Sch. & Lef. 721 
 Rochester v. Lee, 1 Macn. & G. 467 
 
 v. , 2 De G. M. & G. 427 
 
 Rock & Rye Case, 82 N. Y. 630 
 Roddam v. Hetherington, 5 Ves. 91 
 
 180 
 577, 
 578 
 299 
 188 
 435 
 453 
 318 
 392, 
 394 
 
 74 
 162 
 
 464 
 
 415 
 
 167 
 530 
 530 
 537 
 
 28 
 
 Rowlatt v. Cattell, 2 Hare, 186 
 Rowley v. Eccles, 1 Sim. & S. 511 
 
 469 
 444 
 584 
 542, 
 544 
 283 
 113, 
 
 Rodgers v. Rodgers, 1 Paige (N. Y.), 
 
 424 244 
 
 Roemer v. Bernheim, 132 U. S. 103 517 
 
 v. Newman. 19 Fed. R. 98 196 
 
 v. Simon, 95 U. S. 214 213 
 
 Rogers v. Goore, 17 Ves. 130 232 
 
 — - v. Oxford, W. & W. Ry. Co., 2 
 De G. & J. 662 299 
 
 v. Reissner, 31 Fed. P. 592 247, 254 
 
 v. , 34 Fed. R. 270 514 
 
 v. Vosburgh, 4 Johns. Ch. 
 
 (N. Y.) 84 328, 440 
 
 176, 186 
 
 Rowth v. Howell, 3 Ves. 565 372 
 
 Roy v. Louisville, N. O. & T. R. Co., 
 
 34 Fed. R. 276 288 
 
 Royal Exchange Ins. Co. v. Ward, 1 
 
 Fowler's Exch. Pr. 225 157 
 
 Roy all, Ex parte, 117 U. S. 254 546 
 
 Royle v. Wynne, 1 Craig & Ph. 252 194 
 Rubber Co. v. Goodyear, 6 Wall. 153 602 
 
 „. , 9 Wall. 788 14, 190, 191 
 
 „. 9 Wall. 807 156, 249, 250, 
 
 252, 253 
 Rubel v. Beaver I'alls Cutlery Co., 22 
 
 Fed. R. 282 530 
 
 Rucker v. Wheeler, 127 U. S. 85 556 
 
 Rudge v. Hopkins, 2 Eq. Cas. Abr. 170 121 
 Ruggles v. Bucknor, 1 Paine, 358 426 
 
 v. Eddy, 11 Blatchf. 524 244 
 
 Rugheimer, In re, 36 Fed. R. 369 565 
 
 , In re, 36 Fed. R. 376 565 
 
 Rumblv v. Stainton, 24 Ala. 712 435 
 
 Rumbold v. Forteath, 2 Jur. n. s. 686 206 
 Rumford Chemical Works v. Hecker, 
 
 5 Off. Gaz. 644 305 
 
 v. , 11 Off. Gaz 330 340 
 
 v. Vice, 14 Blatchf. 179 197, 315 
 
 Rumsey v. Call, 28 Fed. R. 769 590 
 
 Rundell v. Murray, Jacob, 311 314 
 
 Russell, Ex parte, 13 Wall. 064 616
 
 TABLE OF CASES. 
 [References are to pages.] 
 
 lxiii 
 
 Russell v. Ashley, Hempst. 546 532 
 
 v. Clark, 7 Cranch, 69 17, 101 
 
 v. Farley, 105 U. S. 433 9, 339, 310 
 
 v. Kearney, 27 Ga. 96 405 
 
 v. McLellan, 3 Woodb.&M. 157 427 
 
 v. Sharpe, 1 Jac. & W. 482 65, 78 
 
 v. Stansell, 105 U. S. 303 596 
 
 Ryan v. Gould, 32 Fed. R. 754 482 
 
 — "— v. Mackmath, 3 Bro. C. C. 15 4 
 
 Ryekman v. Parkins, 5 Paige (N. Y.), 
 
 543 373 
 
 Rylands v. Latouche, 2 Bligh, 566 103, 
 
 237, 267 
 
 s. 
 
 S. C. Tryon, The, 105 U. S. 267 616 
 
 Sadler v. Hoover, 7 How. 646 597 
 
 Sadlier v. Fallon, 2 Curt. 579 549 
 
 Sage v. Central R. R. Co., 93 U. S. 
 
 412 606 
 v. Memphis & L. R. R. R. Co., 
 
 125 U. S. 361 344, 345, 387 
 
 v. , 18 Fed. R. 571 387 
 
 v. Railroad Co., 96 U. S. 712 603, 
 
 605 
 
 v. Tauszky, 6 Cent. L. J. 7 424, 425 
 
 Saldgard v. Kennedy, 2 Fed. R. 205 11 
 St. Clair v. Cox, 106 U. S. 350 153, 154, 
 
 199 
 St. Helen's Smelting Co. v. Tipping, 
 
 11 H. L. C. 642 308 
 
 St. John v. Denison, 9 How. (N. Y.) 
 
 343 369 
 
 St. Louis r. Knapp Co., 104 U. S.658 172, 
 
 308, 322 
 St. Louis, A. & T. H. R. R. Co. v. 
 
 Cleveland, C. C. & I. Ry. Co., 125 
 
 U. S. 658 319 
 
 St. Louis, I. M. & S. R. R. Co. v. 
 
 Southern Exp. Co., 108 U. S. 24 467 
 
 v. Vickers, 122 U. S. 360 555, 556 
 
 St. Louis, K. C. & C. Ry. Co. v. 
 
 Dewees, 23 Fed. R. 519 359 
 
 v. , 23 Fed. R. 691 284, 310, 378 
 
 St. Louis & S. F. R. R. Co. v. Wilson, 
 
 114 U. S. 60 571 
 
 St. Louis, V. & T. H. R Co. v. Terre 
 
 Haute & I. R. Co., 33 Fed. R. 385 30, 
 
 153 
 
 v. , 33 Fed. R. 440 118 
 
 St. Luke's Hospital v. Barclay, 3 
 
 Blatchf. 259 5 
 
 St. Mary Magdalen College v. Sib- 
 thorp, 1 Rubb. 154 234, 239 
 St. Paul Plow Works v. Starling, 127 
 
 U. S. 376 25 
 
 St. Paul & C. R. R. Co. v. McLean, 
 
 108 U. S. 212 584, 587 
 
 St. Paul's v. Kettle, 2 Ves. & B. 1 448 
 Salamander Co. v. Haven, 3 Dill. 131 213 
 Sale v. Sale, 1 Beav. 586 65, 6Q 
 
 Salkeld v. Science, 2 Ves. Sen. 107 179, 
 
 207 
 
 Salomon v. Stalman, 4 Beav. 243 283 
 
 fialtus v. Tobias, 7 Johns. Ch. (N. Y.) 
 
 214 188 
 
 Salvidge v. Hyde, 5 Madd. 138 122 
 
 Sahvay v. Salway, 4 Russ. 60 372 
 
 v. , 2 Russ. & M. 215 372 
 
 Sampeyreac v. United States, 7 Pet. 
 
 222 521 
 
 Sampson v. Johnson, 2 Cranch C. C. 
 
 107 553 
 
 Samuel, The, 1 Wheat. 9 425 
 
 v. Jones, 2 Hare, 246 496 
 
 Sanders v. King, 6 Madd. 61 208 
 
 Sandford v. Sinclair, 8 Paige (X. Y.), 
 
 373 378 
 
 Sandilands v. Lines, 3 Sim. 2G3 68 
 
 Sands v. Smith, 1 Dill. 290 579 
 
 Sanxter v. Foster, Cr. & Ph. 302 309 
 
 Sapphire, The, 11 Wall. VA 261, 270 
 
 Sargant v. Read, L. R. 1 Ch. D. 600 379 
 Sargent v. Larned, 2 Curt. 340 218 
 
 Sargent Manuf. Co. v. Woodruff, 5 
 
 Biss. 444 312 
 
 Saull v. Browne, L. R. 10 Ch. 64 304 
 
 Saumarez v. Saumarez, 4 M. & C. 331 83. 
 
 84, 121 
 Saunders v. Gould, 4 Pet. 392 597 
 
 ■ v. Smith, 3 M. & Cr. 711 314 
 
 Savage v. Carroll, 1 Ball & B. 548 78, 
 
 396, 448 
 
 v. Carter, 9 Dana (Ky.), 409 251 
 
 Savannah Nat. Bank v. llaskins, 101 
 
 Mass. 370 3 
 
 Savin, Petitioner, 131 U. S. 267 503, 503 
 Sawyer, In re, 124 U. S. 200 17, 304, 
 
 542 544 
 
 v. Gill, 3 Woodb. & M. 97 ' 156 
 
 v. Oakman, 11 Blatchf. 65 567 
 
 Saxby v. Easterbrook, L. R. 3 C. P. 
 
 D. 339 323 
 
 Sayle v. Graham, 5 Sim. 8 275 
 
 Sayles v. Dubuque & S. C. Ry. Co., 
 
 9 Fed. R. 516 10, 11 
 i'. Erie Ry. Co., 2 N. J. L. J. 
 
 212 232 
 v. Lake Shore & M. S. Ry. Co., 
 
 9 Fed. R. 515 10 
 v. Northwestern Ins. Co., 2 Curt. 
 
 212 161, 162, 586 
 v. Oregon Central Ry. Co., 6 
 
 Sawy. 31 11 
 
 Saylors v. Saylors, 3 Heisk. (Tenn.) 
 
 525 291 
 
 Scaldewell v. Stormesworth, 1 Cal. 
 
 Ch. 5 148 
 
 Scarborough v. Pargoud, 108 U. S. 
 
 567 002 
 
 Scatterwood v. Edge, 1 Salk. 229 307 
 
 Scharff v. Levy, 112 U. S. 711 579 
 
 Scheile v. Brakell, 11 W. R. 796 297, 318 
 Schell v. Cochran, 107 U. S. 625 664 
 
 Schermehorn v. L'Espenasse, 2 Dull, 
 
 360 305, 327, 330, ".:'.2, 338 
 
 Schnadig v. Flescher, 29 Fed. R. 465 579 
 Schneider v. Lizardi, 9 Beav. 461 338
 
 lxiv 
 
 TABLE OF CASES. 
 [References are to pages.] 
 
 Schollenberger, Ex parte, 96 U. S. 
 
 369 154, 534, 537 
 
 School District of Ackley v. Hall, 
 
 106 U. S. 4^8 610, 616 
 
 Schreiber v. Sharpless, 17 Fed. R. 
 
 589 
 
 v. , 110 U. S. 76 
 
 Schulenberg, Ex parted Fed. R. 211 
 Schwab, Ex parte, 98 U. S. 240 
 Schwabacker v. Reilly, 2 Dill. 127 
 
 Schwarz, In re, 14 Fed. R. 787 
 
 11 
 554 
 160 
 535 
 412 
 532 
 
 303, 305, 
 338 
 596 
 558 
 332 
 
 297, 343 
 478 
 
 381 
 
 290 
 
 408 
 344 
 
 Schwed v. Smith, 106 U. S. 188 
 Scipio v. Wright, 101 U. S. 665 
 Scotson v. Gaury, 1 Hare, 99 
 Scott v. Becher, 4 Price, 346 
 
 v. Dunbar, 1 Moll. 442 
 
 v. Platel, 2 Phill. 229 
 
 Scottish Amer. Mortgage Co. v. Fol- 
 
 lansbee, 14 Fed. R. 125 
 Scratchmer v. Foulkard, 1 Eq. Cas. 
 
 Abr. 125 
 Sea Ins. Co. v. Stebbins, 8 Paige 
 
 (N. Y.), 565 
 Seaman, Re, Shelf, on Lun. 146 
 Searles v. Jacksonville, P. & M. R. R. 
 
 Co., 2 Woods, 621 290, 293, 330, 378 
 Seaver v. Bigelows, 5 Wall. 208 596 
 
 Seavey v. Seymour, 3 Cliff. 439 547, 548 
 Secombe, Ex parte, 19 How. 9 535 
 
 v. Campbell, 18 Blatchf. 108 200 
 
 Secor v. Singleton, 9 Fed. R. 809 ; 3 
 
 McCra. 230 183, 205 
 v. Toledo, P. & W. R. R. Co., 7 
 
 Biss. 513 
 Secretary v. McGarrahan, 9 Wall. 
 
 298 
 Sedgwick v. Cleveland, 7 Paige 
 
 (N. Y.), 290 
 
 v. Place, 3 N. B. R. 35 
 
 Segee v. Thomas, 3 Blatchf. 11 
 
 371 
 
 539 
 
 276 
 343 
 140, 156, 
 162 
 Seibert C. O. C. Co. v. Manning, 32 
 
 Fed. R. 625 25 
 
 Reitz v. Mitchell, 94 U. S. 580 218, 396 
 Sellers v. Corwin, 5 Ohio, 398 560 
 
 v. Dawson, 2 Dick. 738 439 
 
 Sellon v. Lewen, 3 P. Wms. 239 225 
 
 Senhouse v. Earl, 2 Ves. Sen. 450 472 
 Sere v. Pitot, 6 Cranch, 332 33, 34 
 
 Sergeant v. Biddle, 4 Wheat. 508 431 
 
 Serle v. St. Eloy, 2 P. Wms. 386 234 
 
 Sessions v. Romadka. 21 Fed. R. 124 470 
 Seymour v. Freer, 5 Wall. 822 604 
 
 „. , 8 Wall. 202 102, 107 
 
 v. Hazard, 1 Johns. Ch. (N. Y.) 
 
 1 389, 390 
 v. Phillips & C. Constr. Co., 7 
 
 Biss. 460 28 
 
 Shaft v. Phoenix Mut. L. I. Co., 67 
 
 N. Y. 544 279 
 Shaftoe v. Shaftoe, 7 Ves. 171 390 
 Shainwald v. Lewis, 6 Fed. R. 766 328 
 o. , 8 Fed. R. 878 373, 380 
 
 Shales v. Barrington, 1 P. Wms. 481 479 
 Shampeau v. Connecticut River Lum- 
 ber Co., 37 Fed. R. 771 530 
 Shankwiker v. Reading, 4 McL. 240 426 
 Sharon v. Hill, 20 Fed. R. 1 13 
 
 v. , 22 Fed. R. 28 194, 205, 209 
 
 v. , 23 Fed. R. 353 113 
 
 v. , 24 Fed. R. 726 503 
 
 v. Terry, 36 Fed. R. 337 12, 24, 175, 
 
 264, 265, 266, 303 
 Sharp v. Ashton, 3 Ves. & B. 144 338 
 
 v. Carter, 3 P. Wms. 375 510 
 
 v. Reissner, 20 Blatchf. 10 205 
 
 Shaver v. Hardin, 30 Fed. R. 801 571 
 
 Shaw v. Bill, 95 U. S. 10 273, 274 
 
 v. Coster, 8 Paige (N. Y.), 339 143 
 
 v. Eailroad Co., 100 U. S. 605 87, 
 
 366 
 
 v. Rhodes, 2 Russ. 539 373 
 
 Shaw Stocking Co. v. Mack, 12 Fed. 
 
 R. 707 301, 317 
 
 Shedd v. Fuller, 36 Fed. R. 609 574, 575 
 Sheffield v. Duchess of Buckingham, 
 
 1 West, 682 471 
 
 Sheffield Canal Co. v. Sheffield & R. 
 
 Ry. Co., 1 Phill. 484 518 
 
 Sheffield Water Works v. Yeomars, 
 
 L. R. 2 Ch. 8 92, 301 
 
 Sheldon v. Fortescue Aland, 3 P. 
 Wins. 104 526 
 
 v. Gill, 8 How. 441 33 
 
 v. Keokuk N. L. Packet Co., 8 
 
 Fed. R. 769 127, 171 
 
 Sheldrick v. Cockcroft, 27 Fed. R. 579 574 
 
 Shelton v. Tiffin, 6 How. 163 27 
 
 Shepherd v. Commissioners of Ross 
 
 County, 7 Ohio, 271 512 
 
 v. Morris, 4 Beav. 252 117 
 
 Sheppard v. Akers. 1 Tenn. Ch. 326 225 
 Sheriff v. Sparks, West, 130 472 
 
 Sherman, In re, 124 U. S. 364 534 
 
 v. Nutt, 35 Fed. R. 149 322 
 
 Sheward v. Sheward, 2 Ves. & B. 
 
 116 416 
 
 Shickle v. South St. Louis Foundry 
 
 Co , 22 Fed. R. 105 125,130 
 
 Shields v. Barrow, 17 How. 130 17, 93, 
 
 94, 99, 118, 137, 238, 251, 290 
 
 o. McClung, 6 W. Va. 79 335 
 
 v. Thomas, 17 How. 3 24, 596 
 
 v. , 18 How. 253 13, 120, 121, 
 
 162 
 Shipbrooke (Lord) v. Lord Hinchin- 
 
 brook, 13 Ves. 387 287 
 
 Shirley v. Earl Ferrers, 3 P. Wms. 
 
 77 415 
 
 Shoecraft v. Bloxham, 124 U. S. 730 33 
 Shoemaker v. National Mech. Bank, 
 
 1 Husrhes, 101 336 
 
 Short v. Chicago, M. &, St. P. Ry. Co., 
 33 Fed. R. 1 14 30, 153, 577, 578 
 
 „. 1 34 Fed. R, 225 577, 578 
 
 Shutte v. Thompson, 15 Wall. 151 427 
 Shuttleworth v. Lavcock, 1 Vern. 
 245 175
 
 TABLE OF CASES. 
 [References are to pages.] 
 
 lxv 
 
 SibbalJ v. United States, 12 Pet. 
 
 488 622 
 
 Sichel v. Raphael, 4 L. T. N. s. 114 394 
 Sickels v. Borden, 4 Blatchf. 14 334, 335 
 
 v. Mitchell, 3 Blatchf. 548 
 
 Sidney v. Perry, 2 Dick. 602 
 Siebold, Ex parte, 100 U. S. 371 
 Sieveking v. Behrens, 2 M. & Cr. 581 
 Sigel v. Plielps, 7 Sim. 23!) 
 Silsby v. Foote, 14 How. 218 
 
 v. , 20 How. 290 
 
 Silver v. Bishop of Norwich, 3 Swanst 
 
 112 
 Simms v. Guthrie, 9 Crunch, 19 
 Simpson, Er parte, 15 Ves. 476 
 v. Fogo, 1 J. & II. 18 ; G Jur. 
 
 n. s. 949 
 
 v. Sadd, 16 C. B. 26 
 
 Sims v. Hundley, 6 How. 1 
 Sinclair v. James, 1 Dick. 277 
 Singer Co. v. Union Co., 1 Holmes, 
 
 253 
 Singleton ». Singleton, 8 B. Mon. 
 
 (Ky.) 310 
 
 Siren, The, 7 Wall. 152 68, 69, 73 
 
 Sizer v. Many, 16 How. 98 623 
 
 Skeffington v. , 4 Ves. 06 151, 241 
 
 Skerrett's Minors, 2 Hogan, 192 374 
 
 Skiddy v. Atlantic, M. & O. R. R. Co., 
 
 3 Hughes, 320 350, 366 
 
 Skip v. Harwood, 3 Atk. 504 
 Skrine v, Powell, 15 Sim. 81 : 9 Jur 
 
 1054 
 
 Slack v. Walcott, 3 Mason, 508 266, 267 
 Slaughter-House Cases, 10 Wall. 273 303 
 Sle^singer v. Buckingham, 17 Fed. R. 
 
 454 218, 321 
 
 Slingsby v. Hale, 1 Ch. Cas. 122 519 
 
 Sloane v. Anderson, 117 U. S. 275 571 
 SIoo v. Law, 3 Blatchf. 459 
 Small v. Attwood, 1 Younge, 407 
 
 v. Montgomery, 17 Fed. li. 865 
 
 Smart v. Flood, 49 L. T. n. s. 467 
 Smith, Ex parte, 1 Atk. 139 
 
 v. Babcock, 3 Sumner, 583 228, 213 
 
 v. Black, 115 U. S. 308 461 
 
 v. Bryon, 3 Madd. 428 179 
 
 p. Burnham, 2 Sumn. 012 117, 397 
 
 v. Chicago & N. W. Ry. Co., 38 
 
 Fed. R. 321 492 
 
 v. Clarke, 2 Dick. 455 331 
 
 v. Coleman, 2 Cranch C. C. 237 426 
 
 v. Craft, 123 U S. 430 597 
 
 v. Cummings, 1 Fisher Pat. Cas. 
 
 152 312, 332 
 
 v. Day, L. R. 13 Ch. D. 651 340 
 
 v. Earl Brownlow, L. R. 9 Eq. 
 
 241 91, 121 
 
 i'. East India Co., 1 Phill. 50 177 
 
 t7. Ely, 15 How. 137 
 
 i;. Green, 37 Fed. R. 424 
 
 17. Greenhow, 109 U. S. 669 
 
 17. Jackson, 1 Paine, 453 
 
 17. Johnson, 4 Blatchf. 252 
 
 v. Kernochen, 7 How. 198 
 
 322 
 205 
 542, 543 
 144 
 65 
 556 
 602 
 
 356 
 
 95, 98 
 116 
 
 171 
 440 
 411 
 257 
 
 319 
 
 526 
 
 505 
 416 
 
 297 
 
 90 
 
 161 
 
 383 
 
 408 
 
 598 
 83 
 23 
 
 536 
 
 315 
 
 Smith 17. Marshall, 2 Atk. 70 152 
 
 v. MeCullough, 104 U. S. 25 359, 
 
 360, 363, 366, 367 
 
 — v. Potter, 3 Wis 432 
 
 — 17. Railroad Co., 99 U. S. 398 8 
 
 — v. St. Louis Mut. L. I. Co., 2 
 Tenn. Ch. 599 
 
 — v. Schwed, 6 Fed. R. 455 304, 
 
 — v. Searle, 14 Ves. 415 
 
 — p. Smith, L. R. 20 Eq. 500 
 
 — 17. Standard L. M. Co., 19 Fed. R. 
 825 
 
 395 
 
 , 18 
 
 219 
 332 
 
 224 
 325 
 
 25 
 90 
 
 17. Swormstedt, 16 How. 288 
 
 i;. Vaughan, Ridg. t. Hardw.251 386 
 
 17. Whitney, 116 U. S. 167 532, 533, 
 
 596 
 
 17. Woolfolk, 115 U. S. 143 238, 247, 
 
 288 
 Snavely i\ Harkrader, 29 Gratt. (Va.) 
 
 112 126 
 
 Snead v. McCoull, 12 How. 407 237, 244 
 
 Snell 17. Hyat, 1 Dick. 287 
 
 v. Insurance Co , 98 U. S. 85 
 
 Snow, In re, 120 U. S. 274 
 v. United States, 118 U. S 
 
 346 
 
 79 
 
 3 
 
 544 
 
 570, 
 
 593 
 
 16 
 405 
 119 
 136 
 
 86 
 
 Snyder v. Marks, 109 U. S. 189 
 
 ». Wise, 10 Pa. St. 157 
 
 Socola v. Grant, 15 Fed. R. 487 
 Soden v. Soden, 13 Ves. 118 
 Solder v. Williams, 1 Curt. 479 
 Somerset (Duke of) v. Cookson, 3 P. 
 
 Wins. 389; 1 Lea. Cas. in Eq. 821 17, 
 
 319, 325 
 Sommerville v. French, 1 Cranch 
 
 C. C. 474 507, 508 
 Sonstiby v. Keeley, 7 Fed.R. 417 444 
 Soule 17. Chase, 1 Rob. (N. Y.) 222 408 
 v. Corning, 11 Paige (N. Y. ) 
 
 412 439 
 
 Southard 17. Russell, 16 How. 547 520, 521 
 Southern Express Co. v. St. Louis, 
 
 I. M. & S. Ry. Co., 10 Fed. R. 210 
 
 325, 341, 470 
 
 v. , 10 Fed. R. 869 325, 341 
 
 Southern Pacific R. R. Co. r. Cali- 
 fornia, 118 U. S. 109 25 
 Southey i?. Sherwood, 2 Meriv. 435 297, 
 
 316 
 South Ottawa v. Perkins, 94 U. S. 
 
 260 443, 558 
 
 Southworth v. Reid, 36 Fed. R. 451 577, 
 
 578 
 Spaeth 17. Barnev, 22 Fed. R. 828 129, 130 
 Spa (ford ». Goodell, 3 McL. 97 509 
 
 Spain (King of) 17. Machado, 4 Russ. 
 
 225 106 
 
 Spalding 17. Keely, 7 Sim. 377 332 
 
 17. Manasse, 131 U. S. 65 555 
 
 i7. People, 2 How. 66 604 
 
 Sparhawk ». Union Pac. R. R. Co., 54 
 
 Pa. St. 401 321 
 
 Sparkman o. Higgins, 1 Blatchf. 205 337 
 Spaulding w. Tucker, 2 Sawv. 50 481, 
 
 491, 195
 
 Ixvi 
 
 TABLE OF CASES. 
 [References are to pages.] 
 
 Spearing v. Lynn, 2 Vern. 376 510 
 
 Speigle v. Meredith, 4 Biss. 120 16 
 
 Sperry v. Erie liy. Co., 6 Blatchf. 425 191, 
 
 212 
 Spies v. Illinois, 123 U. S. 131 294, 613, 
 
 614 
 Spill v. Celluloid Manuf. Co., 28 Fed. 
 R. 870 483, 493 
 
 Spink v. Francis, 19 Fed. R. 670 
 
 i'. , 20 Fed. 11. 567 
 
 Spooner v. McConnell, 1 McL 
 
 308, 
 
 304 
 304 
 
 16, 
 321 
 31(5 
 
 86 
 
 514 
 
 143 
 
 587 
 452 
 
 407 
 
 Spottiswoode v. Clarke, 2 Pliill. 154 
 Spragg v. Binkes, 5 Ves. 587 
 Sprague v. Jones, 9 Paige (N. Y.), 
 
 395 
 Spring v, South Carolina Ins. Co., 8 
 
 Wheat. 268 
 Spring Co. v. Knowlton, 103 U. S. 49 
 Stace v. Mabbot, 2 Ves Sen 552 
 Stacy v. Farnhain, 2 How Fr. (N, Y ) 
 
 26 
 Stafford v. Brown, 4 Faige (N Y.), 
 
 360 293, 407, 506 
 
 v. Bryan, 2 Paige (N. Y.), 45 522 
 
 v. Howlett, 1 Paige (N. Y.), 200 274 
 
 v. Union Bank, 16 How. 135 535, 606 
 
 v. , 17 How. 275 606 
 
 Staines v. Morris, 1 Ves. & B. 8 477 
 
 Stallings v. Goodloe, 3 Murph. (N. C.) 
 
 159 
 Stanbrough v Cook, 38 Fed. R. 369 
 Standen v. Edwards, 1 Ves. Jr. 133 
 Stanley v. Robinson, 1 Russ. & M. 
 
 527 
 Stanton v. Alabama & C. R. R. Co., 2 
 
 Woods, 506 343, 365, 367, 462 
 
 v. , 31 Fed. R. 585 367 
 
 v. Enibrev, 93 U. S. 548 194 
 
 Stapilton v. Stapilton, 1 Atk. 2 137 
 
 Stapleton v. Foreign Vineyard Assoc, 
 
 12 W. R. 976 
 Stapvlton v. Scott, 13 Ves. 425 139, 247 
 Starin v. New York, 115 U. S. 248 25, 571 
 Starr v. Stark, 1 Sawy. 270 199 
 
 Starten v. Bartholomew, 6 Beav. 143 65 
 State Railroad Tax Cases, 92 U. S. 
 
 575 16, 139, 140, 339 
 
 State Savings Assoc, v. Howard, 31 
 
 Fed. R. 433 27 
 
 Stead's Ex'rs v. Course, 4 Cranch, 
 
 403 206, 209, 210 
 
 Steam Gauge & L. Co. v. McRoberts, 
 
 26 Fed. R. 765 115, 129 
 
 Steamship Co. v. Tugman, 106 U. S. 
 
 118 26, 113, 573 
 Stearns v. Page, 1 Storv, 204 197, 207 
 Stebbins v. St. Anne, 116 U. S. 386 119 
 Steel v. Smelting Co., 106 U. S. 447 18 
 Steever v. Rickman, 109 U. S. 74 484 
 Sterner v. Blake, 36 Fed. R. 183 424 
 Steiger v. Bonn, 4 Fed. R. 17 160, 412 
 v. Heidelberger, 4 Fed. R. 455 ; 
 
 18 Blatohf. 426 194 
 
 Stephen v. Beall, 22 Wall. 324 97 
 
 522 
 568 
 452 
 
 212 
 
 297 
 
 Stephen v. Cini, 4 Ves. 359 157 
 
 Stephens v. Monongahela Bank, 111 
 
 U. S. 197 591 
 
 Stephenson v. Wilson, 2 Vern. 325 3 
 
 Stevens v. Cooper, 1 Johns. Ch. 
 
 (N. Y.) 425 397,413 
 
 v. Davison, 18 Gratt. (Va.) 819 
 
 356, 357 
 
 v. Guppy, Turn. & R. 178 527 
 
 v. Nichols, 130 U. S. 230 573 
 
 v. Railroads, 4 Fed. R. 97 434, 435 
 
 v. Richardson, 20 Blatchf. 53 ; 
 
 9 Fed. R. 191 574 
 
 Stevenson v. Anderson, 2 Ves. & B. 
 
 407 144, 145. 156 
 
 v. Magowan, 31 Fed. R. 824 214 
 
 Stewart v. Chesapeake & O. Canal 
 
 Co., 1 Fed. R. 361 95, 136 
 
 v. , 5 Fed. R. 149 446, 497 
 
 v. Drasha, 4 McL. 563 136, 140, 177 
 
 v. Dunham, 115 U. S. 61 27,89,290, 
 
 587, 596 
 
 v. Graham, 19 Ves. 313 390 
 
 v. Inglise, 9 Wheat. 526 540 
 
 v. The Sun, 36 Fed. R. 307 499 
 
 Stimpson v. Brooks, 3 Blatchf. 456 483 
 
 v. Rogers, 4 Blatchf. 333 84 
 
 ■ v. Westchester It. R. Co., 3 How. 
 
 553 540 
 
 Stockdale v. Onwhyn, 5 Barn. & C. 
 
 173 316 
 
 Stockton Laundry Case, 26 Fed. R. 
 
 611 543 
 
 Stockton & H. Ry. Co. v. Leeds & T. 
 
 Ry. Co., 2 Phill 666 323 
 
 Stockwell v. United States, 3 Cliff. 
 
 284 ^ 430 
 
 Stone v. South Carolina, 117 U. S. 
 
 430 574, 590 
 
 p. Wishart, 2 Madd. 64 379, 380 
 
 Stonehouse v. Starislmw, Chan. Cal. 
 
 XXIX. 3 
 
 Storms v. Kansas Pac. Ry. Co., 5 
 
 Dill. 486 186, 
 
 Story, Ex parte, 12 Pet. 339 
 
 v. Derby, 4 McL. 160 
 
 v. Holcombe, 4 McL. 306 
 
 v. Livingston, 13 Pet. 359 107, 
 
 Stovall 17. Banks, Wall. 583 
 Strange v. Collins, 2 Ves. & B. 163 
 Stranger, The, 1 Brown's Adm. 281 
 Strauss v. Meyer, 22 Fed. R. 467 
 
 495 
 
 Street v. Ferry, 119 U. S. 385 
 
 v. Steman, 38 Fed. R. 548 
 
 v. Street, 1 Turn. & It. 322 
 
 Stribley v. Hawkie. 3 Atk. 275 
 Stringfellow v. Cain, 99 U. S. 610 
 
 Strode v. Stafford Justices, 1 Brock. 
 
 162 
 Strong v. Willey, 104 U. S. 512 
 Stuart v. Gay, 127 U. S. 518 
 v. Laird, 1 Cranch, 299 
 
 211 
 
 256 
 315 
 317 
 
 461, 
 462 
 467 
 245 
 410 
 
 482, 
 498 
 597 
 422 
 390 
 4 
 
 591, 
 592 
 
 602 
 191 
 
 465 
 567
 
 TABLE OF CASES. 
 [References are to pages.] 
 
 lxvii 
 
 Stubbs v. Sargon, 3 Beav. 408 286 
 
 Studd v. Acton, 1 H. Bl. 468 508 
 
 Stupp, In re, 12 Blatclif. 501 540, 545 
 
 Sturgess v. Cary, 2 Curt. 59 15 
 
 Sturt v. Mellisli, 2 Atk. 610 3 
 
 Sturz v. De La Rue, 5 Russ. 322 313,330 
 Stuyvesant Bank, In re, 5 Bun. 566; 
 
 6 N. B. It. 272 381 
 
 Suess v. Noble, 31 Fed. It. 855 17 
 
 Suffolk (Earl of) v. Green, 1 Atk. 
 
 450 4, 415 
 
 Sugden v. Hull, 28 Beav. 263 339 
 
 Sullivan v. Portland & K. It. R. Co., 
 94 U. S. 806 175,176 
 
 v. Redfield, 1 Paine, 441 129, 133, 
 
 312,- 313, 330 
 
 v. Tuck, 1 Md. Ch. 59, 319 
 
 Sully v. Drennan, 113 U. S. 287 100 
 
 Sunnyside, The, 5 Ben. 162 493 
 
 Supervisors v. Durant, 9 Wall. 736 539 
 
 v. Kennicott, 103 U. S. 554 655 
 
 v. Rogers, 7 Wall. 175 295, 567 
 
 v. United States, 4 Wall. 435 536 
 
 Surget v. Byers, Hempst. 715 300 
 
 Sutro v. Simpson, 14 Fed. It. 370 586 
 
 Sutton v. Bancroft, 23 How. 320 024 
 
 v. Jones, 15 Ves. 584 380 
 
 v. Mandeville, 1 Crancb C. C. 
 
 115 
 Suydam v. Beals, 4 McL. 12 
 
 v. Broadnax, 14 Pet. 67 
 
 v. Truesdale, 6 McL. 459 
 
 427 
 164, 221 
 8 
 228, 244, 
 250 
 359 
 
 Swaby v. Dickon, 5 Sim. 629 
 Swain v. Boylston Ins. Co., 37 Fed. R. 
 
 766 570 
 
 Swartwout, Ex parte, 4 Cranch, 75 541 
 
 Swatzel v. Arnold, Woolw. 383 
 Sweeney v. Coffin, 1 Dill. 73 
 Sweet v. Maugham, 11 Sim. 51 
 Swift v. Jenks, 19 Fed. R. 641 
 
 v. Tyson, 16 Pet. 1 
 
 Swope v. Leffingwell, 105 U. S. 3 
 
 544 
 240 
 
 161, 573 
 316 
 333 
 
 444, 557 
 616 
 
 Sydolph v. Monkston, 2 Dick. 609 226 
 Syers v. Brighton Brewery Co., 11 
 
 L. T. n. s. 560 299, 345 
 
 Sykes v. Hastings, 11 Ves. 363 380 
 
 Symonds v. Duchess of Cumberland, 
 
 2 Cox Eq. 411 237 
 
 v. Greene, 28 Fed. R. 834 24 
 
 Syracuse, The, 36 Fed. It. 830 491 
 
 Szywanski's Heirs v. Zunts, 20 Fed. 
 
 R. 361 326 
 
 T. 
 
 Tainter v. Clark, 5 Allen (Mass.), 66 
 
 442 
 Talbot v. McGee, 4 Monr. (Ky.) 375 
 
 247, 252 
 
 v. Scott, 4 Kay & J. 96 343 
 
 Talmage v. Pell, 9 Paige (N. Y.), 410 
 
 228, 250 
 
 Talmage v. Pell, 7 N. Y. 328 
 Taner v. Ivie, 2 Ves. Sen. 466 
 Tanfield v. Irvine, 2 Russ. 149 
 Tappan v. Smith, 5 Biss. 73 
 Tappen v. Norman, 11 Ves. 563 
 Tarble's Case, 13 Wall. 397 
 Tarleton v. Barnes, 2 Keen, 632 
 
 370 
 
 66, 480 
 
 377 
 
 276 
 
 66 
 
 544 
 
 193, 
 
 204, 209 
 
 Tasker v. Small, 3 M. & C. 03 84 
 
 Tatham v. Wright, 2 Russ. & M. 1 452 
 Tayloe v. Merchants' F. I. Co., 9 How. 
 
 390 2, 13, 136, 318 
 
 Taylor, Ex parte, 14 How. 3 535, 5o7 
 
 v. Barclay, 2 Sim. 213 172, 442 
 
 v. Carry 1, 20 How. 583 11 
 
 v. Davis, 110 U. S. 330 374 
 
 v. Holmes, 14 Fed. It. 493 26, 65, 
 
 80, 95, 175, 176, 179, 180, 181, 182, 186 
 v. Life Assoc, of Amer., 3 F'ed. R. 
 
 465 381, 382 
 
 v. Luther, 2 Sumner, 228 220, 3sJ6 
 
 v. Oldham, Jacob, 527 380 
 
 v. Person, 2 Hawks (N. C), 298 522 
 
 v. Philadelphia & It. It. It. Co., 7 
 
 Fed. R. 377 350, 366, 369, 379 
 
 v. , 9 Fed. R. 1 366, 379 
 
 v. Philips, 2 Ves. Sen. 23 471 
 
 v. Robertson, 27 Fed. R. 537 463 
 
 v. Salmon, 4 Myl. & C. 134 89 
 
 v. Shew, 54 N. Y. 75 574 
 
 v. United States, 3 How. 197 406 
 
 v. Wrench, 9 Ves. 315 237 
 
 Taylor County Court v. Baltimore 
 
 & O. R. It. Co., 35 Fed. It. 161 570 
 
 Taylour v. Rochford, 2 Ves. Sen. 281 83 
 Tazewell County v. Farmers' L. & T. 
 
 Co., 12 Fed. R. 752 20, 128 
 
 Teese v. Huntingdon, 23 How. 2 
 Tempest v. Ord, 2 Meriv. 55 
 Tennessee v. Davis, 100 U. S. 257 
 
 Co. v. Wal- 
 
 213 
 359 
 25, 
 569 
 
 575 
 511 
 
 Tennessee C. L. & T. B 
 
 ler, 37 Fed. R. 545 
 
 Terrell v. Allison, 21 Wall. 289 
 
 Terry, Ex parte, 128 U. S. 289 503, 505, 
 
 507, 542, 544 
 
 In re, 36 Fed. R. 419 503, 505 
 
 v. Little, 101 U. S , 216 8, 98 
 
 v. Me Lure, 103 U. S., 442 245, 445 
 
 v. Tubman, 92 U. S. 156 98 
 
 Texas v. Chiles, 21 Wall. 488 410 
 
 Texas Express Co. ?•. Texas & P. Ry. 
 
 Co., 6 Fed. It. 426 325 
 
 Texas & St. L. Ry. Co. v. Rust, 17 
 
 Fed. It, 275 20, 386, 387 
 Thackrah v. Haas, 119 U. S. 499 13 
 Thayer v. Life Assoc, 112 U. S. 717 99 
 v. Wales, 9 Blatclif. 170; 5 
 
 Fisher Pat. Tas. 130 312 
 
 v. , 5 Fisher Pat. Cas. 448 151, 
 
 162 
 Theberath v. Rubber & C. H. T. Co., 
 
 5 Bann. & A. Pat. Cas. 584 210, 232 
 Third Ave. Sav. Bank v. Dimock, 24 
 
 N. J. Eq. 26 244
 
 lxviii 
 
 TABLE OF CASES. 
 
 [References are to pages.] 
 
 Thomas, In re, 3 N. B. K. 7 
 
 , In re, 35 Fed. R. 337 457, 
 
 , In re, 35 Fed. R. 822 
 
 v. Brigstocke, 4 Lluss. 64 
 
 v. Brownville, F. K. & P. R. R. 
 
 Co., 109 U. S. 522 
 v. Chicago & C. S. Ry. Co., 37 
 
 Fed. R. 548 
 
 i?. Dawkin, 1 Ves. Jr. 452 
 
 v. Harvie's Heirs, 10 Wheat. 146 
 
 v. Lloyd, 25 Beav. 620 
 
 v. Peoria & K. I. Ry. Co., 36 
 
 Fed. R. 808 
 
 v. Wooldridge, 23 Wall. 283 
 
 Thompson v. Allen County, 115 U. S. 
 
 550 7, 15, 16, 
 v. Brown, 4 Johns. Ch. (N. Y.) 
 
 619 
 
 v. Butler, 95 U. S. 094 
 
 v. Geary, 5 Beav. 131 
 
 v. Goulding, 5 Allen (Mass.), 81 
 
 v. Maxwell, 95 U. S. 391 519, 522, 
 
 v. Perrine, 103 U. S. 806 
 
 v. Railroad Cos., 6 Wall. 134 
 
 338 
 461 
 4 27 
 387 
 
 87 
 
 — v. Scott, 4 Dill. 508 68 
 
 — v. Smith, 2 Bond, 320 398 
 
 — v. , 1 Dill. 458 
 
 — v. Thompson, 1 Turn. & V. Ch. 
 Pr. 513 
 
 — v. , 7 Beav. 350 
 
 — v. Took, 1 Dick. 115 
 
 — v. United States, 103 U. S. 480 
 
 v. Williams, 1 Jones Eq. (N. C.) 
 
 176 
 Thomson v. Dean, 7 Wall. 342 
 v. East Tenn. & G. Ry. Co., 38 
 
 Fed. R. 673 
 
 v. Eastwood, L. R. 2 App. Cas. 
 
 215 
 
 v. Lee Countv, 3 Wall. 327 
 
 v. Wooster, 114 U. S. 104 165, 
 
 168, 199, 
 Thorley's C F. Co. v. Massam, L. R. 
 
 6 Ch. D. 582 
 Thornbursdi v. Savage Min. Co., 1 
 
 Pacific L. M. 267 153, 
 
 Thorne v. Towanda Tanning Co., 15 
 
 F'ed. R. 289 193, 
 
 Thornhill v. Thornhill, 14 Sim. 600 
 Thoroton v. Blackborne, 2 W. Kel. 7 
 Thorp v. Orr, 2 Cranch C. C. 335 
 Thorpe v. Macauley, 5 Madd. 218 
 
 v. Simmons, 2 ('ranch C. C. 195 
 
 Thring v. Edgar, 2 Sim. & S. 274 
 Thruston v. Mustin, 3 Cranch C. C. 
 
 335 
 Tifft v. Iron Clad Manuf. Co., 16 
 
 Blatchf. 48 
 Tilden v. Blair, 21 Wall. 241 
 Tilford v. Oaklev, Hempst. 197 
 Tilghman v. Proctor. 125 U. S. 136 
 Tinsley v. Lacy, 1 Hem. & M. 747 
 
 379 
 520, 
 521 
 475 
 
 351 
 467 
 
 357 
 
 328 
 595 
 336 
 514 
 
 ,523 
 444 
 
 5,8, 
 438 
 371 
 
 ,458 
 511 
 
 289 
 434 
 
 257 
 538, 
 539 
 
 310 
 467 
 
 579 
 
 119 
 
 558 
 167, 
 601 
 
 323 
 
 161 
 
 194 
 379 
 471 
 426 
 
 186 
 421 
 207 
 
 306 
 
 303 
 557 
 13 
 463 
 314 
 
 Tintsman v. National Bank, 100 U. S. 
 
 6 595 
 
 Tioga R. R. Co. v. Blossburg & C. 
 
 R. R. Co., 20 Wall. 137 558 
 
 Tippecanoe County (Comm'rs of) v. 
 
 Lucas, 93 U. S. 108 614 
 
 Tipping v. Eckersley, 2 Kay & J. 264 300 
 Titterton v. Osborne, 1 Dick. 350 107 
 
 Tobin v. Walkinshaw, McAll. 26 99 
 
 v. Wilson, 3 J. J. Marsh. (Ky.) 67 144 
 
 Todd v. Daniel, 16 Pet. 521 598 
 
 v. Gee, 17 Ves. 273 174 
 
 Toland v. Sprague, 12 Pet. 300 152, 162 
 Tolson v. Lord Fitzwilliam, 4 Madd. 
 
 403 185 
 
 Tumkin v. Lethbridge, 9 Ves 178 224 
 Toinlinson v. Ward, 2 Conn. 396 377, 
 
 382 
 Tomlinson & W. Manuf. Co. v. Shatto, 
 
 34 Fed. R. 380 10 
 
 Tom Ting, Ex parte, 108 U. S. 556 548 
 Tonkin v. Lethbridge, G. Coop. 43 267, 
 
 274 
 Tooker v. Thompson, 3 McL. 92 426 
 
 Torrent v. S. K. Martin Lumber Co., 
 
 37 Fed. R. 727 586 
 
 Torrey v. Grant Locomotive Works, 
 
 14 Blatchf. 269 574 
 
 Toulmin v. Hamilton, 7 Ala. 362 175 
 
 v. Reid, 14 Beav. 499 247, 248 
 
 Tourton v. Flower, 3 P. Wms. 369 132, 
 
 181, 182 
 Towle v. Pierce, 12 Met. (Mass.) 329 96, 
 
 100, 114 
 Townley v. Deare, 3 Beav. 213 449 
 
 Tovvnsend v. Ives, 1 Wds. 216 450 
 
 f. Todd, 91 U. S. 452 558 
 
 Tracy v. Torrey, 2 Blatchf 275 333 
 
 Trade Auxiliary Co. v. Vickers, L. R. 
 
 16 Eq. 303 ' 345 
 
 Trade Mark Cases, 100 U. S. 82 318 
 
 Trafton v. Nougues, 4 Sawy. 178 573 
 
 Transatlantic Co. v. Pietroni, Johns. 
 
 604 343 
 
 Transportation Co. v. Parkersburg, 
 
 107 U. S. 691 171, 172 
 
 Travis v. Waters, 1 Johns. Ch. (N. Y.) 
 
 85 258 
 
 Treadwell v. Sevmour, U. S. C. C, 
 
 S. D. N. Y., Oct. 29, 1889, N. Y. 
 
 L J. Oct. 30, 1889, Lacombe, J. 552 
 Trecothick v. Austin, 4 Mason, 16 97 
 
 Tredway v. Sanger, 107 U. S. 323 33 
 
 Tremaine v. Hitchcock, 23 Wall. 518 236, 
 
 237, 245 
 Tremolo Patent, The, 23 Wall. 518 237 
 Trenton Banking Co. v. Rossell, 1 
 
 Green Ch. (X. J.) 492 451 
 
 Tnvelvan v. Charter, 9 Beav. 140 513 
 Trial, The, Blatchf. & H. 94 490 
 
 Triebert *;. Burgess, 11 Md. 452 378 
 
 Trigs v. Conway, Hempst. 711 554 
 
 Trimmer v. Bayne, 9 Ves. 209 4 
 
 Triplett v. Bank of Washington, 3 
 
 Cranch C. C. 646 553
 
 TABLE OF CASES. 
 [References are to pages.] 
 
 lxix 
 
 Trotter v. Trotter, Jacob, 533 508 
 
 Troy Iron & Nail Factory v. Corning, 
 
 6 Blatchf. 328 216, 218, 462 
 
 v. , 7 Blatchf. 16 482, 494 
 
 Troy & B. R. R. Co. v. Boston, H. T. 
 
 & W. Ry. Co., 86 N. Y. 107 301, 309, 341 
 Trust & Fire Ins. Co. v. Jenkins, 8 
 
 Paige (N. Y.), 589 164,242 
 
 Trustees v. Greenough, 105 U. S. 527 88, 
 290, 467, 477, 481, 496, 497, 498 
 Trustees of Wabash & E. Canal Co. 
 
 v. Beers, 2 Black, 448 89, 90 
 
 Tryon v. Westminster Imp. Comm'rs, 
 
 6 Jur. >-. s. 1324 107, 187 
 
 Tryon (S. C), The, 105 U. S. 267 616 
 Tuck v. Olds, 29 Fed. R. 883 482, 495, 49_8 
 Tucker v. Carpenter, Hempst. 440 337, 
 
 340 
 Tufts v. Tufts, 3 Woodb. & M. 429 514, 
 
 515 
 Tapper v. Powell, 1 Johns. Ch. (N. Y.) 
 
 439 # 138 
 
 Turner v. Amer. Bapt. Miss'y Union, 
 
 5 McL. 344 120, 326 
 v. Bank of North Amer., 4 Dall.8 34, 
 
 174 
 
 526 
 257 
 
 ■ v. Berry, 38 111. 541 
 
 v. Cole, 3 Beav. 292 
 
 v. Indianapolis, B. & W. Ry. Co., 
 
 8 Biss. 315 347 
 v. Peoria & S. R. R. Co., 95 111. 
 
 134 367 
 
 v. Robinson, 1 Sim. & S. 3 189,211 
 
 „. . l Sim. & S. 313 122 
 
 v. Turner, 2 Stra. 708 67 
 
 v. Wight, 4 Beav. 40 306 
 
 Turrell v. Spaeth, 9 Off. Gaz. 1163 275, 
 
 276 
 Twitchell v. Commonwealth, 7 Wall. 
 
 321 613 
 
 Two Sicilies (King of) v. Willcox, 1 
 
 Sim. n. s. 301 178 
 
 Tyler v. Bell, 2 M. & Cr. 89 186 
 
 v. Galloway, 13 Fed. R. 477 238 
 
 v. Magwire, 17 Wall. 253 623 
 
 v. Simmons, 6 Paige (N. Y.), 
 
 127 463 
 
 Tysen v. Wabash R. R. Co., 8 Biss. 
 
 247 345, 346 
 
 u. 
 
 Union Bank of G. v. Geary, 5 Pet. 
 
 99 218, 219, 396 
 
 Union Bank of La. v. Stafford, 12 
 
 How. 327 95, 96, 102, 103 
 
 Union Mut. Ins. Co. v. Commercial 
 
 Mut. M. I. Co., 2 Curt. 524 215, 325 
 Union Mut. L. I. Co. r. Union Mills 
 
 Plaster Co., 37 Fed. R. 286 377 
 v. Univ. of Chicago, 6 Fed. R. 
 
 443 11 
 
 Union Pacific Ry. Co. v. Cheyenne, 
 
 113 U. S. 516 16 
 
 Union Pacific Ry. Co. v. Hall, 91 U. S. 
 343 536, 537, 539 
 
 v. McShane, 3 Dill. 303 16, 122, 124 
 
 v. Mercer, 28 Fed. R. 9 171 
 
 Union P. B. M. Co. v. Newell, 11 
 
 Blatchf. 549 337 
 
 Union Sugar Refinery v. Mathiesson, 
 2 Cliff. 304 160, 412 
 
 v. , 3 Cliff. 146 455, 475, 513 
 
 Union Trust Co. v. Chicago & L II. 
 K. R. Co., 7 Fed. R. 513 367,375 
 
 w. Illinois Midland Hv. Co., 117 
 
 U. S. 434 344, 350, 363, 365, 367 
 
 v. Morrison, 125 U. S. 591 351 
 
 v. Rockford, R. I. & St. L. R. 
 
 R. Co., 6 Biss. 197 12 
 
 v. Souther, 107 U. S. 591 349, 350 
 
 v. Walker, 107 U. S. 590 349,353 
 
 United N. J. R. R. & C. Co. v. Hop- 
 pock, 1 Stew. Eq. (N. J.) 261 417 
 United States, Ex parte, 1 Gall. 338 566 
 
 v. Adams, 6 Wall. 101 r.i io 
 
 v . f 9 Wall. 661 540 
 
 v. Addison, 22 How. 174 535, 596 
 
 v. Alexander, 4 Cranch C. C. 
 
 311 122 
 
 v. American Bell Telephone Co., 
 
 128 U. S. 315 12, 125 
 
 v. , 29 Fed. R. 17 155, 161 
 
 v. , 30 Fed. R. 523 173 
 
 „. f 32 Fed. R. 591 12 
 
 v. Ames, 99 U. S. 35 171 
 
 v. Armejo, 131 U. S., App. 
 
 lxxxii. 601 
 
 v. Atherton, 102 U. S. 372 116 
 
 v. Auditors of Brooklyn, 8 Fed. 
 
 R. 473 538 
 
 v. Bailey, 9 Pet. 267 597 
 
 v. Beebe, 127 U. S. 338 10, 197 
 
 v. Benner, Baldw. 234 391, 398 
 
 v. Black, 11 Blatchf. 538 322 
 
 v. Bollman, 1 Cranch C. C. 373 545, 
 
 547 
 
 v. Boutwell, 17 Wall. G04 74, 539 
 
 ». Bridgman, 8 Am. L. Rec. 541 160 
 
 I?. Bullock. 6 Pet. 485, n. 535 
 
 v. Buzzo, 18 Wall. 125 598 
 
 v. Carter, 3 Cranch C. C. 423 503 
 
 v. Chicago, 7 How. 185 597, 598 
 
 i?. Citv of New Orleans, 17 Fed. 
 
 R. 483 538 
 
 v. Clark County, 95 U. S. 769 53tt 
 
 17. Clarke, 8 Pet. 436 68 
 
 v. < lolgate, 21 Fed. R. 318 305 
 
 (7. Curry, 6 How. 106 604 
 
 17. Curtner, 26 Fed. R. 296 124 
 
 v. Daniel, 6 Wheat. 642 597 
 
 v. Dashiel, 3 Wall. 688 601 
 
 v. Davis, 5 Cranch C. C. 622 547 
 
 v. Dawson, 101 U. 8. 569 555 
 
 r. Delaware, L. & W. R. R. Co., 
 
 40 Fed. R. 101 536 
 
 v. Devaughan, 3 Cranch C. C. 
 
 84 504 
 v. Dodge, 2 Gall. 313 505
 
 lxx 
 
 TABLE OF CASES. 
 [References are to pages.] 
 
 United States v. Duane, Wall. C. C. 
 102 502, 505 
 
 493 
 
 v. Durling, 4 Biss. 509 
 
 p. Ebbs, 10 Fed. R. 
 
 Hughes, 473 
 
 v. Eliason, 16 Pet. 291 
 
 v. Elizabeth, 9 Reporter, 232 538 
 
 v. Emerson, 4 Craneh C. C. 188 503 
 
 v. Fields, 4 Blatchf. 326 256, 262 
 
 369; 4 
 
 489 
 
 555 
 
 v. Fossatt,21 How. 445 
 
 v. Fox, 94 U. S. 315 
 
 v. Frazer, 22 Fed. R. 106 
 
 v. Gear, 3 How. 120 
 
 v. Gillespie, 6 Fed. R. 803 
 
 v. Gomez, 1 Wall. 690 
 
 „. , 3 Wall. 752 
 
 v. , 23 How. 326 
 
 v. Goodwin, 7 Craneh, 108 
 
 v. Green, 3 Mason, 482 
 
 v. Gunning, 18 Fed. R. 511 
 
 v. , 22 Fed. R. 653 
 
 v. Haas, 5 Fed. R. 29 
 
 v. Hall, 131 U. S. 50 
 
 v. Hamilton, 109 U. S. 63 
 
 v. Harrill, McAll. 243 
 
 p. Hilliard, 3 McL. 324 
 
 17. Hodge, 13 How. 478 
 
 17. Hoffman, 4 Wall. 158 
 
 v. Howland, 4 Wheat. 108 
 
 v. Huffmaster, 35 Fed. R. 81 
 
 i'. Hughes, 11 How. 552 
 
 v. Insley, 130 U. S. 263 
 
 v. Jailer of Fayette County, 2 | 
 
 277 
 535 
 558 
 12 1 
 
 306, 308 
 196 : 
 
 540, 002 
 605| 
 
 622, 623 
 691 
 
 544, 547 
 12 
 12 
 490 
 597 
 597 
 400 
 400 
 400 
 
 COO 
 
 ooo 
 
 101 
 
 22 
 
 109 
 
 10, 197 
 
 United States v. Nashville, C. & St. L. 
 Ry. Co., 118 U. S. 120 
 
 v. New Orleans, 98 U. S. 381 
 v. Nye, 4 Fed. R. 888 
 u. One Case, 1 Paine, 400 
 
 — v. Parrott, McAll. 271 307, 332, 336 
 _ v . , McAll. 447 279, 280, 427, 
 
 431 
 
 — v. Patterson, 26 Fed. R. 509 503 
 
 — v. , 29 Fed. R. 775 543, 547, 
 
 548 
 
 — v. Perrin, 131 U. S. 55 
 
 — v. Peters, 5 Craneh, 115 
 
 — i7. Philadelphia & R. R. R. Co., 
 123 U. S. 113 
 
 — v. Pings, 4 Fed. R. 714 
 
 — v. Port of Mobile, 12 Fed. R. 
 768 
 
 — i7. Pratt Coal & Coke Co., 18 
 Fed. R. 708 65, 80, 113, 126, 128, 139, 
 
 140, 175, 176, 573 
 
 10 
 530 
 530 
 427 
 
 597 
 535 
 
 550 
 430 
 
 536 
 
 Abb. U. S. 265 
 
 — 17. Jones, 109 U. S. 513 
 
 — „. , 131 U. S. 1 
 
 — i;. Kane, 23 Fed. R. 748 
 
 — 17. Knight, 14 Pet. 301 
 -, 1 Black, 488 
 
 532, 546 
 565 
 22, 35 
 371 
 550 
 623 
 
 431 
 556 
 5 
 530 
 544 
 530 
 
 499 
 v. Sampevreac, Hempst. 118 520, 
 521 523 525 
 v. Sanborn, 28 Fed. R. 299' 492^ 494 
 v. Scholfield, 1 Craneh C. C 
 17. Schurz, 102 U. S. 378 
 
 Price. 2 Wash. 356 
 Rathbone, 2 Paine, 578 
 Ravara, 2 Dall. 297 
 Reid, 12 How. 361 
 Rogers, 23 Fed. R. 658 
 Rose, 14 Fed. R. 681 
 St. Charles Co., 31 Fed. 
 
 R. 
 
 536, 539 
 C C. 
 
 391 
 
 69, 73 
 
 539 
 
 v. Labette County, 7 Fed. R. 
 
 318 
 17. Lafontaine, 4 Craneh 
 
 173 
 
 v. Lee, 106 U. S. 196 
 
 17. Lee County, 2 Biss. 77 
 
 v. Liddle, 2 Wash. 205 
 
 i>.Linn, 15 Pet 220 
 
 ». Louisiana, 123 U. S. 32 
 
 v. Louisville & P. Canal Co., 4 
 
 Dill. 601 
 
 v. Macon County, 99 U. S. 582 
 
 17. Mann, 2 Brock. 9 
 
 17. Maxwell, 3 Dill. 275 
 
 v. McLaughlin, 24 Fed. R. 823 
 
 v. McLemore, 4 How. 286 
 
 v. McRae, L. R. 4 Eq. 327 
 
 17. , L. R. 3 Ch. App. 79 
 
 v. Memphis & L. R. R. Co., 6 
 
 Fed R. 237 504, 506 
 
 v. Minor, 114 U. S. 233 109, 139 
 
 i\ Mississippi & R. R. B. Co., 3 
 
 Fed. R. 548 ; 1 McCra. 601 308 
 
 17. Mitchell, 2 Wash. 478 401 
 
 v. Myers, 2 Brock. 516 13 
 
 130 508 
 
 73, 74, 
 
 115, 537 
 
 396 
 
 398 
 
 574 
 
 64 
 
 293 
 536 
 
 502, 504 
 530 
 
 219 
 322 
 
 178 
 178 
 
 v Scott, 3 Woods, 334 
 
 v. Scroggins, 3 Woods, 529 509 
 
 !7. Sherman, 98 U. S. 565 564 
 
 v. Stephenson, 1 McL. 462 574 
 
 v. Stone, 14 Pet. 524 598 
 
 17. Sturgis, 14 Fed. R. 810 531 
 
 v. Tetlow, 2 Low. 159 550 
 
 v. The Glamorgan, 2 Curt. 236 611 
 
 v. Thompson, 98 U. S. 486 10, 197, 
 
 558 
 
 v. Throckmorton, 98 U. S 61 128 
 
 17. Tilden, 25 Int. Rev. Rec. 352 411 
 
 v. Tread well, 15 Fed. R. 532 480 
 
 v. Union Pacific R. R. Co., 91 
 
 U. S. 72 537 
 y . 98 U. S. 569 104, 109, 126, 
 
 551 
 
 r. , 2 Dill. 527 536, 537, 538 
 
 v. , 4 Dill. 479 539 
 
 17. Wayne, Wall. C. C. 134 506 
 
 p. White, 17 Fed. R. 561 109, 136, 
 
 139, 140, 177 
 
 ». Wilkinson, 12 How. 246 400 
 
 v. Williams, 4 Craneh C. C. 372 412 
 
 17. Williamson, 3 Am. L. Reg. 
 
 729 547 
 
 17. . 4 Am. L. Reg. 5 544, 547 
 
 p. Wilson, 118 U.S. 86 16 
 
 17. Yates, 6 How. 605 162 
 
 v. Young, 94 U. S. 258 540
 
 TABLE OF CASES. 
 [References are to pages.] 
 
 lxxi 
 
 United States Annunciator Co. v. 
 
 Sanderson, 3 Blatchf. 184 
 United States M. A Assoc, v. Barry, 
 
 131 U. S. 100 
 Universities of O. & C. v. Richardson, 
 
 6 Ves. 689 
 University College v. Foxcroft, 2 Pep. 
 
 in Cli. 244 
 Urlin v. Hudson, 1 Vern. 332 193, 
 
 Urner v. Kayton, 17 Fed. R. 539 
 
 v. , 17 Fed. R. 845 
 
 Utterson v. Mair, 2 Ves. Jr. 95 
 Uvedale v. Uvedale, 3 Atk. 117 
 Uxbridge (Lord) v. Staveland, I Ves. 
 Sen. 56 114,140,173, 
 
 556 
 311 
 
 264 
 
 194, 
 196 
 461 
 461 
 343 
 497 
 
 219 
 
 V. 
 
 Vaigneur j;. Kirk, 2 Desaus. (S. C.) 
 
 640 448 
 
 Vail v. Knapp, 49 Barb. (N. Y.) 299 305 
 Vallandigham, Ex parte, 1 Wall. 243 5, 
 
 540 
 
 , Trial of, 45 545 
 
 Vallette v. Whitewater Valley Canal 
 
 Co., 4 McL. 192 13, 84 
 
 Van Allen, In re, 37 Barb. (N. Y.) 225 
 
 370 
 Van Alst v. Hunter, 5 Johns. Ch. (N. 
 
 Y.) 148 452 
 
 Van Antwerp v. Hulburd, 7 Blatchf. 
 
 426 161 
 
 Van Beil v. Prescott, 82 N. Y. 630^ 318 
 Van Brocklin v. Tennessee, 117 U. S. 
 
 151 15 
 
 Vancouver v. Bliss, 11 Ves. 458 477 
 
 Van Dyck v. McQuade, 85 N. Y. 616 
 
 360, 369, 370 
 Vane v. Lord Barnard, 2 Vern. 738 307 
 Van Home, Matter of, 7 Paige (N. Y.), 
 
 46 387 
 
 Vann v. Barnett, 2 Bro. C C. 158 377 
 
 Van Ness v. Heineke, 2 Cranch C. C. 
 
 259 426 
 
 Van Norden v. Morton, 99 U. S. 378 
 
 9, 16, 309, 438, 558 
 Van Orden, Ex parte, 3 Blatchf. 166 540 
 Van Reimsdyk v. Kane, 1 Gall. 371 86 
 Van Rensselaer v. Kearney, 11 How. 
 
 297 558 
 
 Vansant v. Gaslight Co., 99 U S. 213 
 
 005 
 Vanstophorst v. Maryland, 2 Dall. 401 
 
 428 
 Van Vechten v. Terrv, 2 Johns. Ch. 
 
 (N. Y.) 197 87 
 
 Van Wyck v. Knevals, 106 U. R. 360 15 
 
 v. Re:d, 10 How. Pr. (N. Y.) 366 
 
 408 
 Varick v. Mayor of N. Y., 4 Johns. 
 
 Ch. (N. Y.) 53 333 
 
 Vasse v. Smith, 2 Cranch C. C. 31 426 
 
 Vattier v. Hinde, 7 Pet. 252 103, 230, 
 
 259, 267 
 Vaughan v. Central Pacific R. R. Co., 
 
 4 Sawy. 280 8 
 
 v. Fitzgerald, 1 Sch. & Lef. 316 
 
 415, 416 
 
 v. Vaughan, 1 Dick. 90 382 
 
 Vaughn v. Nortbrup, 15 Pet. 1 68 
 
 Veach v. Rice, 131 U. S. 293 247, 251 
 Veazie v. Williams, 3 Story, 611 480 
 
 Venables v. Foyle, 1 Ch. Cas. 2 528 
 
 Venice (Town of) v. Murdock, 92 
 
 U. S. 494 557 
 
 Verden v. Coleman, 18 How. 86 467 
 
 Vermeule, Matter of, 10 Ben. 1 487 
 
 Vernon, The, 36 Fed. R. 113 491, 492, 
 
 493 
 Verplanck v. Mercantile Ins. Co., 2 
 
 Paige (N. Y.), 438 377 
 
 Verplank v. Caines, 1 Johns. Ch. (N. 
 
 Y.) 57 170, 173 
 
 Very v. Levy, 13 How. 345 318 
 
 Vicksburg & M. R. R. Co. v. Putnam, 
 
 118 C. S. 545 556 
 
 Vigel v. Hopp, 104 U S. 441 138, 218, 
 
 396 
 Vigers v. Lord Audley, 9 Sim. 72 273, 
 
 277 
 
 v. , 9 Sim. 408 275 
 
 Vigo's Case, 21 Wall. 648 534 
 
 Villa v. Rodriguez, 12 Wall. 323 3 
 
 Villabolos v. United States, 6 How. 
 
 81 005 
 
 Vinal v. Continental C. & I. Co., 34 
 
 Fed. R. 228 570 
 
 Vipan r. Mortlock, 2 Meriv. 476 336 
 
 Virginia v. West Virginia, 11 Wall. 
 
 39 77 
 
 Virginia Coupon Cases, 114 U. S. 269 
 
 73, 76, 77, 323 
 
 , 114 U. S. 325 322 
 
 Voce v. Lawrence. 4 McL. 203 426 
 
 Von Hoffman v. Quincy, 4 Wall, 535 
 
 536 
 Von Rov v. Blackman. 3 Woods, 98 151 
 Vose v. Philbrook, 3 Storv, 335 96 
 
 v. Reed, 1 Woods, 647 343 
 
 Voss v. Luke, 1 Cranch C. C. 331 507, 
 
 508 
 
 TV. 
 
 12 
 
 Wabash Cases, 29 Fed. R. 161 
 
 Wabash & E. Canal Co. v. Beers, 1 
 Black, 54 467 
 
 v. , 2 Black, 448 89, 90 
 
 Wabash, St. L ,<: 1'. liv. Co. v. Cen- 
 tral Trust Co.. 22 Fed. R. 138 254, 345 
 
 v. , 22 Fed. R. 269 
 
 v. , 22 Fed. R. 272 
 
 v. , 23 Fed. R. 513 
 
 Wagner r. Baird, 7 How. 234 
 v. Mcars, 3 Sim. 127 
 
 360 
 
 18, 345 
 
 2^2. 315, 
 
 651, 570 
 
 10, 197 
 
 290
 
 lxxii 
 
 TABLE OF CASES. 
 [References are to pages.] 
 
 Wagstaff v. Bryan, 1 Russ. & M. 28 265 
 Wainwright v. Waterman, 1 Ves. Jr. 
 
 313 85 
 
 Waite, In re, 1 Low. 321 497 
 
 Wake v. Parker, 2 Keen, 70 64, 65 
 
 Wakelin v. Walthal, 2 Ch. Cas. 8 528 
 Walburn v. Ingilby, 1 M. & K. 61 132 
 Waleot v. Walker, 7 Ves. 1 316 
 
 Walden v. Bodley, 14 Pet. 150 138, 140, 
 199, 243, 445 
 
 v. Skinner, 101 U. S 577 13, 95, 96 
 
 Wales v. Whitney, 114 U. S. 564 542, 
 
 546 
 Walker v. Easterby, 6 Ves. 612 499 
 
 v. Jackson, 2 Atk. 625 4 
 
 u. O'Neill, 38 Ferl. R. 374 568 
 
 v. Parker, 5 Cranch C. C. 639 425, 
 
 420, 431 
 
 v. Powers, 104 U. S. 215 121, 126, 
 
 127, 175, 186, 187 
 
 ■ v. Smith, 21 How. 57'.) 
 
 v. State Harbor Comm'rs, 17 
 
 Wall. 648 
 
 v. United States, 4 Wall. 163 
 
 v. Wild, 1 Madd 528 
 
 Walkley v. Muscatine, 6 Wall. 481 
 Wall, Ex parte, 107 U. S. 265 
 Wallace v. Holmes. 9 Blatchf. 65 
 v. Loomis, 97 U. S. 146 
 
 J22 
 
 443 
 595 
 383 
 
 16 
 535 
 
 97 
 
 2, 360, 365. 
 
 300 
 
 v. Wallace, Halst. Dig. (N. J.) 
 
 173 219 
 
 Waller v. Harris, 7 Paige (N. Y.), 167 470 
 Wallworth v. Holt, 4 M. & C. 619 85, 89 
 Walmsley v. Child, 1 Ves. Sen. 343 142 
 Walser r. Seligman, 13 Fed. R. 415 
 Walsh v. Memphis, C. & N. W. R. R. 
 
 Co., 6 Fed. R. 797 
 
 v. Preston, 109 U. S. 297 
 
 v. Trevannion, 16 Sim. 178 
 
 Walsington v. Nevin, 128 U. S. 578 
 Walton v. Coulson, 1 McL. 125 
 
 v. Crowley, 3 Blatchf. 440 
 
 v. Herbert, 3 Ureen Ch. (N. J.) 
 
 73 141, 149 
 
 v. Johnson, 15 Sim. 352 328, 371 
 
 Warburton v. London & B. Ry. Co., 
 
 2 Beav.253 
 Ward v. Arredondo, 1 Paine, 410 
 
 v. , Hopk. (N. Y.) 213 
 
 v. Hill, 4 Gray (Mass.), 593 
 
 a. Seabry, 4 Wash. 420 
 
 Wardle v. Claxton, 9 Sim. 412 
 Ware v. Grand Junction W. W. Co, 
 
 2 Russ. & M. 470 
 v. Regent's Canal Co., 3 De G. 
 
 & J. 212 
 
 v. Ware, 42 Ga. 408 
 
 Waring v. Crane, 2 Paige (X. Y.) 
 
 18 
 
 101 
 99 
 
 471 
 
 610 
 78 
 
 317 
 
 338 
 96 
 409 
 447 
 150 
 327 
 
 323 
 
 300 
 343 
 
 79 
 
 66,67 
 
 Warmouth, Ex parte, 17 Wall. 64 533 
 
 Warren, Ex port?, 10 Ves. 022 344, 376 
 
 v. Fake, 49 How. Pr. (N. Y.) 430 345 
 
 v. Furstenheim, 35 Fed. R. 691 554 
 
 v. Moody, 9 Fed. R. 673 215 
 
 Warthen v. Brantley, 5 Ga. 571 120 
 
 Wartnaby v. Wartnaby, Jacob, 377 
 
 67,68 
 Washburn & M. Manuf. Co. v. Col- 
 well S. B. F. Co., 1 Fed. R. 225 291 
 
 v. Haish, 4 Fed. R. 690 312 
 
 v. Scutt, 22 Fed. R. 710 194, 247 
 
 Washington Bridge Co. v. Stewart, 3 
 
 How. 413 622 
 
 Washington Co. Nat. Bank v. Lee, 
 
 112 Mass. 521 399 
 
 Washington Ins. Co. v. Slee, 2 Paige 
 
 (X. Y.'), 365 257 
 
 Washington R. R. v. Bradleys, 10 
 
 Wall. 299 252 
 
 Wa?kern v. Diamond, Hempst. 701 426 
 Waters v. Carroll, 9 Yerg. (Tenn.) 102 381 
 Waterton v. Croft, 5 Sim. 502 156 
 
 Waterville v. Van Slyke, 110 U. S. 
 
 6S9 597 
 
 Watkins, Ex parte, 3 Pet. 193 541, 543, 
 
 544 
 
 v. Atchison, 10 Hare, App. xlvi 416 
 
 v. Stone, 2 Sim. 49 188 
 
 Watson v. Smith, 7 Fed. R. 359 212 
 
 v. Sutherland, 5 Wall. 74 7, 17, 309 
 
 v. Tarpley, 18 How. 517 
 
 Watt v. Starke, 101 U. S. 247 
 
 557, 558 
 447,451, 
 452 
 
 Watts v. Waddle, 1 McL. 200 
 
 v. , 6 Pet. 3E9 
 
 Wayman v. Southard, 10 Wheat. 1 
 
 95 
 443 
 
 563, 
 597 
 
 Weale v. West Middlesex W. W. Co., 
 
 1 Jac. & W. 358 92 
 
 Weaver v. Alter, 3 Woods, 152 249, 250 
 Webb, In re, Shelf, on Lun. 417 67 
 
 i». Bvng, 8 De G. M. & G. 633 475 
 
 v. Dill, 18 Abb. Pr. (X. Y.) 264 283 
 
 v. Pell, 3 Paige (N. Y.), 368 524 
 
 v. Powers, 2 Woodb. & M. 497 215, 
 
 315, 317 
 
 v. Vermont Cent. R. R. Co., 9 
 
 Fed. R. 703 
 Webber v. Bishop, 13 Fed. R. 49 
 
 v. Humphreys, 5 Dill. 223 
 
 Weber v. Lee County, 6 Wall. 210 
 
 11 
 
 574 
 
 29 
 
 536, 
 
 538 
 
 598 
 586 
 
 Webster v. Cooper, 10 How. 54 
 
 v. Crothers, 1 Dill. 301 
 
 Webster Loom Co. v. Higgins, 13 
 
 Blatchf. 349 244 
 
 v. Short, 10 Off. Gaz. 1019 25S 
 
 Wedekind v. Southern Pacific Co., 36 
 
 Fed. R. 279 575 
 
 Weeks v. Weeks, 100 N. Y. 626 360 
 
 Weeth v. New England Mortgage Co., 
 
 100 II. S. 605 597 
 
 Weide v. Insurance Co. of N. A., 3 
 
 Chic. L. N. 353 551 
 
 Weller v. J. B. Pace Tobacco Co., 32 
 
 Fed. R. 860 571 
 
 Wellesley r. Wellesley, 4 M. & Cr. 
 
 554 182, 187 
 
 Wellford v. Miller, 1 Cranch C. C. 485 427
 
 TABLE OF CASES. 
 
 lxxiii 
 
 [References are to pages.] 
 
 293 
 
 79 
 
 268 
 
 Welling v. La Bau, 34 Fed. R. 40 463 
 Wells v. Oregon Ry. & Nav. Co., 15 
 Fed. R. 501 ; 8 Savvy. 600 115 
 
 v. Southern Minn. Ky. Co., 1 
 
 Fed. R. 270 350 
 
 v. Strange, 5 Ga. 22 139 
 
 v. Wood, 10 Ves. 401 244 
 
 Werder, In re, 15 Fed. R. 789 350 
 
 Wescott v. Fairfield, Pet. C. C. 45 26 
 
 West v. Home Ins. Co., 18 Fed. R. 622 630 
 
 v. Randall, 2 Mason, 181 90, 91, 96 
 
 104, 122, 124, 1S6 
 
 v. Smith, 3 Beav. 306 294 
 
 Westbrook's Trusts, In re, L. R. 11 
 
 Eq. 252 
 Westcomb v. Wcstcomb, 1 Dick.. 233 
 Westcott y.Cady, 5 Johns. Ch. (N. Y.) 
 
 334 
 Western Pacific R. R. Co. v. United 
 
 States, 108 U. S. 510 12 
 
 Western Union Tel. Co. v. Atlantic 
 
 & P. Tel. Co., 7 Biss. 367 363 
 
 v. Brown, 32 Fed. R. 337 30 
 
 v. Burlington & S. W. Ry. Co., 
 
 11 Fed R. 1 333 
 v. Rogers, 93 U. S 565 595 
 
 v. St. Joseph & W. Ry. Co., 3 
 
 Fed. R. 430 319, 333 
 
 v. Union Pac. Ry. Co., 3 Fed. R. 
 
 423 319 
 
 y . , 3 Fed. R. 721 333 
 
 Westinsjhouse A. B. Co. v. Carpenter, 
 
 32 Fed. R. 484 15 
 Westley v. Williamson, 2 Moll. 458 496 
 Weston i'. Charleston, 2 Pet. 449^ 614 
 v. Empire Assur. Co., L. R. 6 Eq. 
 
 23 117 
 
 v. Hajjgerston, G. Coop. 134 514 
 
 West Portland Homestead Assoc, v. 
 
 Lownsdale, 17 Fed. R. 205 197 
 
 West Wisconsin Ry. Co. v. Foley, 94 
 
 U. S. 100 624 
 
 Wetherill v. New Jersey Zinc Co., 1 
 
 Ban. & A. Pat Gas. 105 10 
 
 Wetmore v. St. Paul & P. R. R. Co., 
 
 3 Fed. R. 177 446 
 
 v. Scovell, 3 Edw. (N. Y.) 515 298 
 
 v. United States, 10 Pet. 047 398 
 
 Wheeler v. McCormick, 8 Blatchf. 
 
 267 ; 4 Fisher's Pat. Cas. 433 32, 194, 
 196, 202, 206, 208, 468 
 Whelan v. New York, L. E. & W. R. R. 
 
 Co., 35 Fed. R. 849 577, 578, 579, 580 
 Whipple v. Cumberland C. M. Co., 3 
 
 Story, 84 492, 493 
 
 v. Hutchinson, 4 Blatchf. 190 334, 
 
 335 
 Whistler v. Webb, Bunb. 53 87 
 
 Whitbeck v. Edtjar, 2 Barb. Ch. 
 
 (N. Y.) 106 107,120,175 
 
 Whitbread v. Brockhurst, 1 Bro. C. C. 
 
 404 ; 2 Ves. & B. 154, n 188 
 
 White v. Arthur, 10 Fed R. 80 564 
 
 v. Bishop of Peterborough, 3 
 
 Swanst. 109 356 
 
 White v. Bovce, 21 Fed. R. 228 17 
 
 v. Buloid, 2 Paige (N. Y.), 164 254 
 
 v. Crow, 119 U. S. 183 18 
 
 17. Foljambe, 11 Ves. 337 479 
 
 v. Hess, 8 Paige (X. Y.), 544 407 
 
 v. Hillacre, 3 Y. & C. 597 89 
 
 v. Keokuk & D. M. Ry. Co., 52 
 
 Iowa, 97 375, 388 
 
 v. Lisle, 3 Swanst. 342 448, 451 
 
 r. St. Guirons, Minor (Ala.), 331 398 
 
 v. United States, 1 Black, 501 
 
 v. Whitman, 1 Curt. 494 
 
 Whitehouse v. Partridge, 3 Swanst. 
 
 365 
 Whitelegg v. Whitelegg, 1 Bro. C. C. 
 
 57 
 Whiteside v. Prendergast, 2 Barb. Ch. 
 
 (N. Y.) 471 
 Whitesides v. Lafferty, 3 Humph. 
 
 (Tenn.) 150 
 Whitfield, Ex parte, 2 Atk. 315 
 
 v. Fausset, 1 Ves. Sen 392 
 
 Whiting v. Bank of the U. S., 13 Pet. 
 
 6 258, 407, 472, 519, 520, 523, 525, 526 
 Whitman v. Hubbell, 30 Fed. R. 81 24 
 
 27,88 
 Whitmore, Ex parte, 1 Dick. 143 
 Whitney, Ex parte, 13 Pet. 404 
 
 v. Belden, 4 Paige (N. Y.), 140 
 
 v. Buckman, 26 Cal. 447 
 
 v. Cook, 99 U. S. 607 
 
 v. Huntt, 5 Cranch C. C. 120 
 
 Whittemore v. Cutter, 1 Gall. 429 
 
 v. Farrington, 76 N. Y. 452 
 
 Whittenton v. Memphis & O. R. P 
 
 Co., 19 Fed. R. 273 
 Whittingham v. Burgoyne, 3 Anst 
 
 900 
 
 v. Wooler, 2 Swanst. 428, n 
 
 Whittlesey v. Delaney, 73 N. Y. 571 
 Whorewood v. Whorewood, 1 Ch 
 
 Cas. 250 
 Wickliffe v. Hill, 3Litt. (Ky.) 330 
 
 v. Owinajs, 17 How. 47 
 
 Wiggins v. Gray, 24 How. 303 
 Wigton v. Brainerd, 28 Fed. R. 29 
 Wilcox i'. Henry, 1 Dall. 69 
 
 v. Jackson, 13 Pet. 498 
 
 Wilde r. Gibson, 1 II. L. C. 605 
 Wdder v. McCormick, 2 Blatchf. 31 
 
 535 
 194 
 
 390 
 
 332 
 
 388 
 
 373 
 376 
 142 
 
 390 
 535 
 474 
 343 
 616 
 420 
 214 
 3 
 
 585 
 
 181 
 341 
 370 
 
 Wildridge ». McKane. 2 Moll. 545 
 Wilkins r. Aikin, 17 Ves. 422 
 
 v. Fry, 1 Mer. -J 1 1 
 
 v. Jordan, 3 Wash. 226 
 
 Wilkinson r. Belslicr, 2 Bro. C. C. 272 
 
 v. Culver, 25 Fed. H. 639 
 
 v. Dobbie, 12 Blatchf. 298 
 
 v. Fowkes, '.) Hare, 193 
 
 Willan v. Willan. 16 Ves. 72 
 Willard v. Tavloe, 8 Wall. 557 
 Willcox v. Beilaers, Turn. & R. 491 
 Williams, In re, 37 Fed. R. 325 
 
 v. Bank of U. 8., 11 Wheat. 414 5!>8 
 
 v. Bankhead, 19 Wall. 563 95, 100 
 
 528 
 398 
 190 
 597 
 482 
 64 
 73 
 119 
 129, 
 171 
 387 
 310 
 81 
 335 
 289 
 370 
 306 
 272 
 523 
 4,97 
 479 
 492
 
 lxxiv 
 
 TABLE OF CASES. 
 [References are to pages.] 
 
 Williams v. Boston & A. R. R. Co., 17 
 
 Blatclif. 21 213 
 
 v. Cooke, 10 Ves. 406 260 
 
 v. Corwin, Hopk. CI.. (N. Y.) 471 166 
 
 v. Davis, 1 Sim. & S. 426 226 
 
 v. Douglas, 5 Beav. 82 116 
 
 v. Empire Transp. Co., 1 N. J. 
 
 L.J. 315 191,192 
 
 v. Gibbes, 20 How. 535 228 
 
 v. Hintermeister, 26 Fed. R. 889 346 
 
 v. Jackson, 107 U. S. 478 446 
 
 v. Mellish, 1 Vera. 117. n 525 
 
 v. Morgan, 111 U. S. 684 87 
 
 v. Nottawa, 104 U. S. 209 436, 438 
 
 v. Price, 4 Price, 156 448 
 
 v. Walker, 2 Rich. Eq. (S. C.) 
 
 291 144 
 
 v. Williams, 9 Mod. 299 103 
 
 Williams, M. & R. Co. v. Haynor, 7 
 
 Biss. 245 589 
 
 Williamson v. Gordon, 19 Ves. 114 471, 
 
 472 
 
 v. Wilson, 1 Bland (Md.), 418 372, 
 
 373, 379, 380 
 Williamsport Bank v. Knapp, 119 
 
 U. S. 357 597 
 
 Willings v. Consequa, Pet. C. C. 301 429 
 Wilson, Ex parte, 114 U. S. 417 542, 543 
 
 v. Barn urn. 1 Wall. Jr. 342 450 
 
 „. > 8 How. 258 597 
 
 v. Barnev, 5 Hun (N. Y.), 257 387 
 
 v. Blair, 119 U. S. 387 597 
 
 v. City Bank, 3 Sumner, 422 85, 
 
 101, 113 
 
 v. Daniel, 3 Dall. 401 23, 24, 607 
 
 v. Fine, 38 Fed. R. 789 530 
 
 v. Gaines, 103 U. S. 417 171 
 
 v. Ginger, 2 Dick. 521 450 
 
 v. Greenwood, 1 Swanst. 471 347, 
 
 380, 381 
 
 v. Koontz, 7 Crancb, 202 197 
 
 v. Luke, 1 Vict. L. R. 127 316 
 
 v. Riddle, 123 U. S. 608 450, 451 
 
 v. Sandford, 10 How. 99 25 
 
 v. Seligman, 10 Reporter, 651 256 
 
 v. Stolley, 4 McL. 272 332 
 
 „. . 4 McL. 275 114, 236 
 
 v. Todd, 1 M. & C. 42 103 
 
 v. Union Sav. Assoc, 30 Fed. R. 
 
 521 571 
 v. Western Union Tel. Co., 34 
 
 Fed. R. 561 30, 570, 574 
 
 v. Wilson, 1 Jac. & W. 459 107 
 
 Wilson's Heirs v. Life & Fire Ins. Co., 
 
 12 Pet. 140 598 
 
 Wilton v. Jones. 2 Y. & C. 244 87 
 
 Winans v. Eaton, 1 Fisher Pat. Cas. 
 
 181 312 
 v. New York & E. R. R. Co , 21 
 
 How. 88 430, 431 
 
 Winberg v. Berkeley Co. R. R. & L. 
 
 Co., 29 Fed. R. 721 575 
 
 Winchell v. Coney, 27 Fed. R. 482 584 
 Winchester (Bishop of) v. Fournier, 
 
 2 Ves. Sen. 445 448, 476 
 
 Windsor v. McVeigh, 93 U. S. 274 199 
 Winegar v. Cahn, 29 Fed. R. 676 483 
 
 Wing v. Fairhaven, 8 Cush. (Mass.) 
 
 363 330, 340 
 
 Winnemans v. Edgington, 27 Fed. R. 
 
 324 587 
 
 Winslow v Nayson, 113 Mass. 411 340 
 Winter v. Ludlow, 3 Phila. (Pa.) 464 104, 
 
 152 
 v. Simonton, 3 Cranch C. C. 
 
 104 431 
 
 Wintermute v. Smith, 1 Bond, 210 491 
 Winters v. Ethell, 132 U. S. 207 602 
 
 Winthorp v. Royal Exchange Assur. 
 
 Co., 1 Dick. 282 
 Winthrop v. Murray, 7 Hare, 150 
 v. Union Ins. Co , 2 Wash. 7 
 
 Wiscart v. Dauchy, 3 Dall. 321 
 Wisdom v. Memphis, 2 Flipp. 285 
 Wiser v. Blachly, 2 Johns. Ch. (N. Y.) 
 
 488 
 Wisner v. Barnet, 4 Wash. 631 81 
 
 499 
 435 
 429, 
 430 
 591 
 537 
 
 522 
 ,96, 
 176 
 379 
 554 
 513 
 514 
 572 
 536 
 129, 
 
 Wiswell v. Starr, 48 Me. 401 
 Witters v. Foster, 26 Fed. R. 737 
 
 v. Sowles, 32 Fed. R. 130 
 
 v. , 32 Fed. R. 765 
 
 Wolff v. Archibald, 14 Fed. R. 369 
 
 v. New Orleans, 103 U. S. 358 
 
 Wollensak v. Reiner, 115 U. S. 96 
 
 130, 133, 175, 176 
 Wolverton v. Lacey, 18 L. R. 672 551 
 Womersley v. Meirritt, L. R. 4 Eq. 
 
 695 238 
 Wood v. Beadell, 3 Sim. 273 327 
 v. Cleveland Rolling Mill, 4 
 
 Fisher's Pat. Cas. 550 11 
 
 17. Dummer, 3 Mason, 308 91, 122 
 
 v. Griffith, 1 Meriv. 35 516 
 
 v. Guarantee T. & S. D. Co., 128 
 
 U. S. 416 
 
 v. Lide, 4 Cranch, 180 
 
 v. Mann, 1 Sumner, 506 
 
 349, 355 
 
 603, 607 
 
 189, 190, 
 
 200 
 
 397 
 
 143 
 
 406 
 
 376 
 
 487, 488 
 
 v. , 2 Sumner, 316 
 
 v. Swift, 81 N. Y. 31 
 
 v. United States, 16 Pet. 342 
 
 v. Wood, 4 Russ. 558 
 
 Woodbury, In re, 7 Fed. R. 705 
 Woodruff c. Dubuque & S. C. R. K. 
 
 Co., 30 Fed. R. 91 217 
 v. North Bloomfield G. M. Co., 
 
 18 Fed. R. 753 301, 308 
 Woods v. Monroe, 17 Mich. 238 4 
 v. Morrell, 1 Johns. Ch. (N. Y.~) 
 
 103 115, 216, 226 
 
 v. Woods, 10 Sim. 197 277 
 
 Woodward v. Woodward, 1 Dick. 33 273 
 Woodworth v. Edwards, 3 Woodb. & 
 
 M. 120 336 
 
 v. Hall, 1 Woodb. & M. 389 337 
 
 v. Rogers, 3 Woodb. & M. 135 337 
 
 v. Sherman, 3 Story, 171 498 
 
 v. Stone, 3 Story, 749 275
 
 TABLE OF CASES. 
 [References are to pages.] 
 
 lxxv 
 
 Woollara v. Hearn, 7 Ves. 211 446 
 
 Woolridge v. McKenna, 8 Fed. R. 650 26 
 Woolsey v. Judd, 4 Duer (N. Y.), 379 298 
 Wooster v. Blake, 7 Fed. R. 816 208 
 
 v. Gurabirnner, 20 Fed. R. 167 458, 
 
 461 
 
 v. Handv, 23 Fed. R 49 477, 482, 
 
 483, 495 
 
 v. Sidenbergh, U. S. C. C, S. D 
 
 N. Y., Nov. 6, 1889 
 Worcester v. Truman, 1 McL. 483 
 Worden o. Searls, 121 U. S. 14 
 Works v. Junction R. R., 5 McL. 425 
 
 Wormald v. De Lisle, 3 Beav. 18 
 Wormley v. Wormley, 8 Wheat. 421 
 
 Wormser v. Dahlman, 16 Blatchf. 319 
 Worswick Manuf. Co v. City of Phila 
 
 delphia, 30 Fed. R. 625 
 Worthington v. Seribner, 109 Mass. 
 
 487 
 Wortley v. Birkhead, 2 Ves. Sen. 571 
 Wray v. Hutchinson, 2 M. & K. 235 
 
 Wren v. Kirton, 11 Ves. 377 
 
 v. Spencer 0. M. Co., 18 Off. 
 
 Gaz. 857 
 
 v. Weild, L. R. 4 Q. B. 730 
 
 Wright v. Atkyns, 1 Ves. & B. 313 
 
 v. Castle, 3 Meriv. 12 
 
 v. Dame, 1 Met. (Mass.) 237 
 
 418 
 505 
 507 
 308, 
 321 
 114 
 26, 
 95 
 573 
 
 442 
 
 177 
 520 
 239, 
 241 
 372 
 
 231 
 323 
 327 
 435 
 
 182, 
 418 
 
 v. Howard, 1 Sim. & S. 190 478, 480 
 
 v. Merchants' Nat. Bank, 1 Flipp. 
 
 568 
 
 344 
 415 
 
 587 
 Wms. 
 
 396 
 
 82, 83 
 191 
 
 v. Tatham, 2 Sim. 459 
 
 v. Wells, 1 Pet. C- C. 220 
 
 Wrottesley v. Bendish, 3 P. 
 
 235 
 Wych v. Meal, 3 P. Wms. 310 
 Wylie v. Coxe, 15 How. 415 
 Wynne v. Lord Newhorough, 1 Ves. 
 
 jr. 164 ; 3 Bro. C. C. 88 359, 369 
 
 v. , 15 Ves. 288 379, 380 
 
 Wythe v. Palmer, 3 Sawy. 412 208 
 
 Yale Lock Manuf. Co. v. Colvin, 14 
 Fed. It. 269 482 
 
 Yarbrough, Ex parte, 110 U. S. 651 
 Yates v. Arden, 5 Cranch C. C. 526 
 
 v. Hambly, 2 Atk. 237 
 
 v. Hardy, Jacob, 223 
 
 Yeaton v. Lenox, 8 Pet. 123 
 
 Yick Wo v. Crowley, 26 Fed. R. 207 
 
 543 
 239 
 102 
 226 
 121 
 303, 
 3K> 
 11 
 89 
 
 Yonley v. Lavender, 21 Wall. 276 
 
 York v. White, 10 Jur. 168 
 
 York (Archbishop of) v. Stapleton, 2 
 
 Atk. 136 241 
 
 York (Mayor of) v. Pilkington, 1 
 
 Atk. 282 92, 124 
 
 v. , 2 Atk. 302 304 
 
 York County v. Central R. R., 3 Wall. 
 
 107 431 
 
 Young, In re, 7 Fed. R. 855 192, 370 
 
 v. Bryan, 6 Wheat. 146 33 
 
 v. Colt, 2 Blatchf. 373 250 
 
 v. Cushing, 4 Biss. 456 99, 100 
 
 v. Davidson, 5 Cranch C. C. 515 425 
 
 v. Everest, 1 Russ. & M. 426 497 
 
 v. Ewart, 132 U. S. 579 
 
 v. Grand Trunk By. Co., 9 Fed. 
 
 R 348 551 
 
 v. Grundy, 6 Cranch, 51 215, 336, 
 
 467 
 
 v. Kcighly, 16 Ves. 348 520 
 
 v. Merchants' Ins. Co., 29 Fed. 
 
 R. 273 493, 494, 590 
 v. Montgomery & E. R. R. Co., 
 
 2 Woods, 606 386, 387 
 v. Parker's Adm'r, 132 U. S. 
 
 267 579 
 
 v. Pott, 4 Wash. 521 254 
 
 Yovatt v. Winyard, 1 Jac. & W. 394 297 
 Yow v. Townsend, 1 Dick. 59 514 
 
 Yuba County v. Pioneer G. M. Co., 
 
 32 Fed. R. 183 30, 153 
 
 Yuengling v. Johnson, 1 Hughes, 
 
 607 281, 329, 330 
 v. Schile, 12 Fed. R. 97 314 
 
 Zambrino v. Galveston, H. & S. A. 
 
 Ry. Co., 38 Fed. R. 449 30, 153, 154 
 Zeckendorf v. Johnson, 123 U. S. 617 591, 
 
 695 
 Zunkel v. Litchfield, 21 Fed. It. 196 421
 
 CITATIONS. 
 
 [references are to pages.] 
 
 U. S. CONSTITUTION. 
 
 Page. 
 Art. I. § 6. 159, 390, 412 
 III. 20 
 
 III. § 1. 5 
 
 Page. 
 Art. III. § 2. 5, 72 
 
 XI. Amendment. 5, 68, 323 
 
 U. S. REVISED STATUTES. 
 
 
 Page. 
 
 
 
 
 Page. 
 
 
 Page. 
 
 § 1. 
 
 406, 426. 
 
 
 
 § 502. 
 
 295, 296. 
 
 § 657. 
 
 32, 468. 
 
 531. 
 
 36, 37, 38, 39, 40 
 
 41, 
 
 593. 
 
 295, 296. 
 
 658. 
 
 37, 38, 39, 40, 41 
 
 
 43, 45, 47 
 
 48, 
 
 51, 
 
 594. 
 
 295, 296. 
 
 
 42,43,44,45, 46 
 
 
 52, 55, 56. 
 
 
 
 595. 
 
 295, 296. 
 
 
 47, 48, 49, 50, 51 
 
 532. 
 
 35, 36. 
 
 
 
 596. 
 
 295, 296. 
 
 
 52, 53, 55, 56. 
 
 533. 
 
 36. 
 
 
 
 597. 
 
 295. 
 
 664. 
 
 37. 
 
 534. 
 
 38. 
 
 
 
 598. 
 
 295, 296. 
 
 674. 
 
 603. 
 
 535. 
 
 38. 
 
 
 
 509. 
 
 205, 296. 
 
 684. 
 
 35. 
 
 536 
 
 39. 
 
 
 
 600. 
 
 295, 296. 
 
 685. 
 
 35. 
 
 538. 
 
 44. 
 
 
 
 601. 
 
 295. 
 
 686. 
 
 35. 
 
 540. 
 
 46. 
 
 
 
 602. 
 
 295. 
 
 687. 
 
 20, 21. 
 
 541. 
 
 48. 
 
 
 
 603. 
 
 295, 296. 
 
 688. 
 
 531, 533, 534. 
 
 542. 
 
 48. 
 
 
 
 004. 
 
 295, 296. 
 
 691. 
 
 592. 
 
 543. 
 
 50. 
 
 
 
 605. 
 
 295. 
 
 602. 
 
 466, 592. 
 
 544. 
 
 50. 
 
 
 
 606. 
 
 295. 
 
 693. 
 
 594. 
 
 545. 
 
 51. 
 
 
 
 608. 
 
 35, 36. 
 
 695. 
 
 592. 
 
 546. 
 
 52. 
 
 
 
 609. 
 
 295. 
 
 606. 
 
 592. 
 
 547. 
 
 52, 53. 
 
 
 
 615. 
 
 567. 
 
 697. 
 
 594. 
 
 548. 
 
 54. 
 
 
 
 616. 
 
 567. 
 
 698. 
 
 593. 
 
 549. 
 
 55. 
 
 
 
 617. 
 
 295. 
 
 700. 
 
 554. 
 
 550. 
 
 56. 
 
 
 
 618. 
 
 295. 
 
 701. 
 
 623. 
 
 563. 
 
 34. 
 
 
 
 629. 
 
 21, 22. 
 
 702. 
 
 593. 
 
 567. 
 
 567. 
 
 
 
 631. 
 
 466, 611. 
 
 706. 
 
 593. 
 
 568. 
 
 567. 
 
 
 
 632. 
 
 611. 
 
 707. 
 
 592. 
 
 569. 
 
 567. 
 
 
 
 635. 
 
 611. 
 
 709. 
 
 592, 504, 613, 623. 
 
 571. 
 
 36. 
 
 
 
 636. 
 
 611. 
 
 710. 
 
 613, 619. 
 
 572. 
 
 36, 37, 38, 
 
 39, 
 
 40, 
 
 639. 
 
 577, 578. 
 
 716. 
 
 531, 533, 536, 540 
 
 
 41. 42,43 
 
 44, 
 
 45, 
 
 641. 
 
 542, 570, 582. 
 
 717. 
 
 389. 
 
 
 46, 47,48, 
 
 40, 
 
 50, 
 
 642. 
 
 541, 583. 
 
 718. 
 
 144, 281, 329. 
 
 
 51, 52, 53, 
 
 55, 
 
 56. 
 
 643. 
 
 541, 542, 569, 582. 
 
 719. 
 
 293, 204, 329. 
 
 587. 
 
 566. 
 
 
 
 648. 
 
 554. 
 
 720. 
 
 143, 303, 323. 
 
 588. 
 
 566. 
 
 
 
 649. 
 
 554. 
 
 721. 
 
 10, 556. 
 
 591. 
 
 295, 206. 
 
 
 
 653. 
 
 36. 
 
 723. 
 
 7, 324.
 
 
 
 
 CITATIONS. 
 
 
 lxxvn 
 
 
 Pace. 
 
 
 Page. 
 
 
 
 Page. 
 
 724. 
 
 398, 552. 
 
 § 868. 
 
 413. 
 
 
 § 991. 
 
 550. 
 
 725. 
 
 328, 406, 413, 502, 
 
 875. 
 
 433. 
 
 
 992. 
 
 550. 
 
 
 503, 506. 
 
 870. 
 
 411,412, 
 
 191. 
 
 993. 
 
 563. 
 
 726. 
 
 559. 
 
 882. 
 
 398. 
 
 
 994. 
 
 503. 
 
 737. 
 
 93, 572. 
 
 883. 
 
 398. 
 
 
 997. 
 
 004,607,612, 621 
 
 738. 
 
 158, 469, 473. 
 
 884. 
 
 399. 
 
 
 998. 
 
 611, 012. 
 
 740. 
 
 31. 
 
 885. 
 
 399. 
 
 
 999. 
 
 004, 615. 
 
 741. 
 
 31. 
 
 886. 
 
 399. 
 
 
 1000. 
 
 604, 612, 615. 
 
 742. 
 
 81. 
 
 889. 
 
 400. 
 
 
 1003. 
 
 616. 
 
 743. 
 
 58. 
 
 891. 
 
 400. 
 
 
 1004. 
 
 602, 603. 
 
 744. 
 
 59. 
 
 892. 
 
 400. 
 
 
 1005 
 
 603. 
 
 7 j; -j. 
 
 59. 
 
 893. 
 
 400. 
 
 
 1007. 
 
 563, 606. 
 
 747. 
 
 141, 183, 202. 
 
 894. 
 
 400. 
 
 
 1008. 
 
 500, 002. 
 
 751. 
 
 541. 
 
 895. 
 
 401. 
 
 
 1009. 
 
 601. 
 
 752. 
 
 541. 
 
 896. 
 
 401. 
 
 
 1010. 
 
 624. 
 
 753. 
 
 542. 
 
 897. 
 
 401. 
 
 
 1011 
 
 591. 
 
 754. 
 
 545. 
 
 898. 
 
 401. 
 
 
 1012. 
 
 605. 
 
 755. 
 
 545, 546. 
 
 899. 
 
 402. 
 
 
 1017. 
 
 613. 
 
 756. 
 
 546. 
 
 900. 
 
 402. 
 
 
 1072. 
 
 71. 
 
 757. 
 
 547. 
 
 901. 
 
 402. 
 
 
 1750. 
 
 224, 406. 
 
 758. 
 
 547. 
 
 902. 
 
 403. 
 
 
 1909. 
 
 593. 
 
 759. 
 
 547. 
 
 903. 
 
 403. 
 
 
 1911. 
 
 593 
 
 760. 
 
 547. 
 
 904. 
 
 404. 
 
 
 3224. 
 
 16, 322. 
 
 761. 
 
 547. 
 
 905. 
 
 404. 
 
 
 3636. 
 
 320. 
 
 762. 
 
 540. 
 
 906. 
 
 405. 
 
 
 3037. 
 
 320. 
 
 763. 
 
 548. 
 
 907. 
 
 405. 
 
 
 4003. 
 
 391. 
 
 764. 
 
 548. - 
 
 908. 
 
 405. 
 
 
 4064. 
 
 391. 
 
 705. 
 
 548, 549. 
 
 909. 
 
 406. 
 
 
 4065. 
 
 391. 
 
 766. 
 
 549. 
 
 911. 
 
 148, 334, 
 
 411, 507, 
 
 4066. 
 
 391. 
 
 708. 
 
 549. 
 
 
 531, 546, 603. 
 
 4071. 
 
 433, 
 
 783. 
 
 508. 
 
 912. 
 
 334, 411, 
 
 531, 540, 
 
 4072. 
 
 433. 
 
 784. 
 
 508. 
 
 
 602. 
 
 
 4073. 
 
 433. 
 
 785. 
 
 508. 
 
 914. 
 
 529. 
 
 
 4074. 
 
 433. 
 
 786. 
 
 508. 
 
 915. 
 
 549. 
 
 
 4799. 
 
 35. 
 
 787. 
 
 501, 507, 532, 503. 
 
 916. 
 
 500, 562. 
 
 
 4886. 
 
 313, 330. 
 
 788. 
 
 501, 532. 
 
 921. 
 
 551. 
 
 
 4887. 
 
 313, 330. 
 
 793. 
 
 157. 
 
 922. 
 
 151. 
 
 
 4918. 
 
 248, 250, 475. 
 
 800 to 877. 550. 
 
 923. 
 
 509. 
 
 
 4920. 
 
 213. 
 
 824. 
 
 481. 
 
 945. 
 
 400. 
 
 
 4921. 
 
 301, 311. 
 
 828. 
 
 485, 486, 487, 488. 
 
 954. 
 
 141, 208, 
 
 234, 242, 
 
 4922. 
 
 480. 
 
 829. 
 
 411,489,490,491. 
 
 
 292, 530, 532. 
 
 4070. 
 
 301,314. 
 
 832. 
 
 489. 
 
 955. 
 
 261, 264, 
 
 553. 
 
 5013. 
 
 223, 406. 
 
 847. 
 
 490. 
 
 956. 
 
 554, 599. 
 
 
 5141. 
 
 344. 
 
 848. 
 
 491. 
 
 966. 
 
 503, 564. 
 
 
 5191. 
 
 344. 
 
 849. 
 
 494. 
 
 907. 
 
 560. 
 
 
 5195. 
 
 344. 
 
 850. 
 
 494. 
 
 968. 
 
 479. 
 
 
 5201. 
 
 344.' 
 
 858. 
 
 217, 410. 
 
 983. 
 
 481, 498. 
 
 
 5205. 
 
 344. 
 
 861. 
 
 395. 
 
 984. 
 
 498. 
 
 
 5234. 
 
 342, 344. 
 
 862. 
 
 395. 
 
 985. 
 
 502, 562. 
 
 
 5235. 
 
 342, 344. 
 
 863. 
 
 4,411,416,423. 
 
 986. 
 
 502. 
 
 
 5236. 
 
 342, 344. 
 
 864. 
 
 4, 410, 423. 
 
 987. 
 
 559, 564. 
 
 
 5237. 
 
 321, 342. 
 
 865. 
 
 4, 416, 421, 423. 
 
 988. 
 
 504. 
 
 
 5242. 
 
 549. 
 
 866. 
 
 4, 413, 427. 
 
 989. 
 
 564. 
 
 
 5298. 
 
 502. 
 
 807. 
 
 4, 418, 552. 
 
 990. 
 
 550. 
 
 
 5300. 
 
 502.
 
 lxxviii 
 
 CITATIONS. 
 
 U. S. STATUTES AT LARGE. 
 
 Vol. 4. 
 p. 278, Chap. 68. 562. 
 
 Vol. 17. 
 
 p. 196, 
 
 Chap. 255. 549. 
 
 
 485, 
 
 226, § 4. 
 
 536. 
 
 
 
 Vol. 
 
 18. 
 
 
 p. 15, 
 
 Chap. 24. 41. 
 
 
 
 27, 
 
 80. 48, 
 
 591, 592, 
 
 593. 
 
 53, 
 
 214. 55. 
 
 
 
 75, 
 
 286. 56. 
 
 
 
 76, 
 
 287. 37, 
 
 51. 
 
 
 113, 
 
 333, § 8. 
 
 405. 
 
 
 195, 
 
 401, § 1. 
 
 36. 
 
 
 
 §5. 
 
 35, 36. 
 
 
 
 §6. 
 
 35, 36. 
 
 
 251, 
 
 463. 40. 
 
 
 
 253, 
 
 469. 593 
 
 
 
 315, 
 
 77. 447 
 
 ^449. 
 
 
 
 §1- 
 
 591. 
 
 
 316, 
 
 80. 591 
 
 ,593. 
 
 
 333, 
 
 95, § 4. 
 
 535. 
 
 
 333, 
 
 114, § 5. 
 
 593. 
 
 
 371, 
 
 130, § 8. 
 
 542, 569, 
 
 582. 
 
 470, 
 
 137, § 2. 
 
 572, 576. 
 
 
 
 §3. 
 
 580. 
 
 
 
 §4. 
 
 588. 
 
 
 
 §5. 
 
 162, 190, 
 
 436 
 
 
 §6. 
 
 585. 
 
 
 
 §7. 
 
 584. 
 
 
 
 §8. 
 
 158, 469, 
 
 473. 
 
 
 §9- 
 
 599. 
 
 
 480, 
 
 148. 53. 
 
 
 
 Vol. 19. 
 
 4, Chap. 11. 
 
 37, 48, 51 
 
 61, 147. 
 
 37. 
 
 63, 156. 
 
 342, 344. 
 
 206, 304. 
 
 224, 406. 
 
 240, 69. 
 
 593. 
 
 Vol. 20. 
 
 27, Chap. 27. 
 101, 169. 
 
 56. 
 
 50, 51. 
 
 145, 
 
 §1- 
 
 §2. 
 §3. 
 §6. 
 203, § 15. 
 
 61. 
 61. 
 
 61. 
 62. 
 501. 
 
 160, 
 
 Chap. 269. 40. 
 
 178, 
 
 322. 50. 
 
 175, 
 
 326. 44. 
 
 
 §1. 59. 
 
 
 §2. 44,59. 
 
 
 § 3. 60. 
 
 
 § 4. 60. 
 
 
 §5. 60. 
 
 
 § 6. 60. 
 
 
 § 7. 60. 
 
 
 § 8. 60. 
 
 
 § 9. 60. 
 
 206, 
 
 359, § 17. 53. 
 
 259, 
 
 9. 56. 
 
 263, 
 
 20. 47. 
 
 
 §1. 60. 
 
 
 §2. 61. 
 
 
 §3. 61. 
 
 
 §4. 61. 
 
 
 §5. 61. 
 
 277, 
 
 39, § 1. 403. 
 
 
 § 2. 403. 
 
 
 § 3. 404. 
 
 280, 
 
 43. 38. 
 
 318, 
 
 97. 53, 55. 
 
 320, 
 
 99. 592. 
 
 354, 
 
 176, § 2. 611, 612 
 
 
 § 3. 612. 
 
 355, 
 
 177. 41. 
 
 
 § 1. 41. 
 
 415, 
 
 183. 381, 455. 
 
 Vol. 21. 
 
 10, 
 
 Chap. 18. 55. 
 
 41, 
 
 49. 37. 
 
 45, 
 
 59, § 1. 42. 
 
 62, 
 
 17. 38, 39. 
 
 
 § 4. 58. 
 
 
 §5. 58. 
 
 
 § 6. 68. 
 
 
 § 7. 58. 
 
 
 § 8. 58. 
 
 63, 
 
 18. 50, 51. 
 
 
 § 1. 53, 62. 
 
 
 § 2. 62. 
 
 
 § 3. 62. 
 
 
 §4. 62. 
 
 
 § 7. 62. 
 
 
 § 8. 62. 
 
 55, 
 
 120. 40, 41. 
 
 
 §1. 59. 
 
 
 § 2. 59. 
 
 75, 
 
 203. 52, 53. 
 
 
 § 2. 53, 62. 
 
 
 § 3. 62. 
 
 
 §4. 62. 
 
 
 §5 62.
 
 CITATIONS. 
 
 lxxix 
 
 p. 175, 
 
 Chap 203, § 7. 63. 
 
 
 §8. 03. 
 
 
 § 9. 63. 
 
 
 § 10. 63. 
 
 198, 
 
 213. 53. 
 
 308, 
 
 Res. 44. 405. 
 
 324, 
 
 Chap. 45. 55. 
 
 326, 
 
 62. 55. 
 
 330, 
 
 71. 48. 
 
 607, 
 
 144. 42. 
 
 
 §5. 43. 
 
 
 §6. 43. 
 
 511, 
 
 154. 40. 
 
 
 Vol. 22. 
 
 p. 32, 
 
 Chap. 48. 49. 
 
 101. 
 
 218. 45. 
 
 172, 
 
 312 40. 
 
 
 § 5. 40. 
 
 176 
 
 351. 51. 
 
 402 
 
 25. 53. 
 
 631, 
 
 143. 484. 
 
 Vol. 23. 
 
 1, 
 
 Chap 
 
 1. 
 
 43. 
 
 18, 
 
 
 38. 
 
 35, 36. 
 
 
 
 §2 
 
 . 36. 
 
 
 
 §4 
 
 58. 
 
 35, 
 
 
 64. 
 
 55. 
 
 48, 
 
 
 102. 
 
 54. 
 
 50, 
 
 
 106. 
 
 39. 
 
 280, 
 
 
 7. 
 
 53. 
 
 437, 
 
 
 353. 
 
 548. 
 
 443, 
 
 
 355. 
 
 592, 593 
 
 Vol. 24. 
 p. 8, Chap. 28. 342. 
 
 83, 
 
 422. 
 
 36. 
 
 106, 
 
 581. 
 
 38. 
 
 127, 
 
 745. 
 
 45. 
 
 214, 
 
 848. 
 
 37. 
 
 308, 
 
 928. 
 
 37. 
 
 336, 
 
 931. 
 
 52. 
 
 379, 
 
 104. 
 
 321. 
 
 406, 
 
 137. 
 
 50. 
 
 406, 
 
 139. 
 
 36, 37. 
 
 423, 
 
 269. 
 
 45. 
 
 424, 
 
 271. 
 
 40, 47. 
 
 428, 
 
 273. 
 
 37. 
 
 430, 
 
 279. 
 
 45, 46. 
 
 442, 
 
 315. 
 
 39. 
 
 p. 442, Chap. 315, § 3. 39. 
 
 505, 
 
 552, 
 
 359. 22, 35, 658. 
 
 § 1. 69, 70. 
 
 § 2. 69. 
 
 § 4. 71. 
 
 § 5. 70. 
 
 §6. 70. 
 
 §7. 71. 
 
 § 10. 71. 
 
 § 15. 71, 479. 
 
 23, 25, 153, 175, 190, 
 568, 572, 576, 580, 
 584, 585, 588, 590. 
 
 §1. 23,30,33. 
 
 § 2. 374. 
 
 § 3. 192, 370, 480. 
 
 § 4. 21, 27. 
 
 §5. 21. 
 
 § 7. 381, 455. 
 
 373. 
 
 Vol. 25. 
 
 78, Chap 
 
 . 58. 45, 46. 
 
 88, 
 
 129, § 1. 47. 
 
 151, 
 
 201, § 1. 56. 
 
 357, 
 
 728. 22, 35, 565. 
 
 357, 
 
 729. 561. 
 
 
 § 1. 560. 
 
 388, 
 
 789, § 1. 42. 
 
 
 § 2. 32. 
 
 
 § 3. 32. 
 
 
 § 7. 32. 
 
 389, 
 
 792. 42. 
 
 
 § 2. 32. 
 
 392, 
 
 817, § 1. 41. 
 
 433, 
 
 866. 23, 30, 576, 653. 
 
 
 § 2. 374. 
 
 
 § 3. 376. 
 
 438, 
 
 869. 42, 43. 
 
 
 § 3. 32. 
 
 
 §4. 32. 
 
 
 § 8. 32. 
 
 443, 
 
 891, § 1. 47. 
 
 655, 
 
 113. 35,36,52,56,593. 
 
 
 § 5. 602. 
 
 
 §6. 605,607,610,619 
 
 671, 
 
 168. 32, 38, 39. 
 
 676, 
 
 180. 35, 47, 50, 56. 
 
 
 § 21. 296. 
 
 
 § 22. 567. 
 
 690, 
 
 205. 38. 
 
 60:-!, 
 
 236. 590, 594, 609, 658. 
 
 783, 
 
 333, § 1. 53. 
 
 
 $ 2. 53, 55. 
 
 855, 
 
 382. 321. 
 
 
 § 10. 536.
 
 lxxx 
 
 CITATIONS. 
 
 IT. S. EQUITY RULES. 
 
 (See pages 661-636.) 
 
 
 Page. 
 
 
 Tage. 
 
 
 
 Page. 
 
 2. 
 
 163, 280. 
 
 32. 
 
 172, 179, 188, 
 
 203, 
 
 63. 
 
 226. 
 
 3. 
 
 282. 
 
 
 215. 
 
 
 04. 
 
 227. 
 
 4. 
 
 280, 282, 505, 560. 
 
 33. 
 
 204, 210. 
 
 
 65. 
 
 227. 
 
 5. 
 
 280, 202. 
 
 34. 
 
 182, 185, 186. 
 
 
 66. 
 
 204, 231, 436. 
 
 6. 
 
 282, 286, 202. 
 
 35. 
 
 206, 210, 236. 
 
 
 67. 
 
 117, 419, 421, 422 
 
 7. 
 
 148, 150, 510. 
 
 36. 
 
 173, 174, 208. 
 
 
 
 436. 
 
 8. 
 
 476, 500, 502, 505, 
 
 37. 
 
 173, 174, 208. 
 
 
 68. 
 
 424. 
 
 
 508, 510. 
 
 38. 
 
 184, 204, 205, 
 
 231, 
 
 69. 
 
 420, 422, 436. 
 
 9. 
 
 510. 
 
 
 435, 436. 
 
 
 70. 
 
 416, 419. 
 
 10. 
 
 505. 
 
 39. 
 
 172, 178, 190, 
 
 203, 
 
 72. 
 
 253. 
 
 11. 
 
 150. 
 
 
 211, 219, 222. 
 
 
 73. 
 
 454, 476. 
 
 12. 
 
 148, 149, 150, 164. 
 
 40 
 
 136. 
 
 
 74. 
 
 455. 
 
 13. 
 
 152. 
 
 41. 
 
 135, 136, 138, 217. 
 
 75. 
 
 455, 458. 
 
 14. 
 
 150. 
 
 42. 
 
 135. 
 
 
 76. 
 
 461. 
 
 15. 
 
 151, 509. 
 
 43. 
 
 146. 
 
 
 77. 
 
 457, 460, 461. 
 
 16. 
 
 151, 152. 
 
 44. 
 
 178, 219, 222. 
 
 
 78. 
 
 460. 
 
 17. 
 
 16.'}. 
 
 45. 
 
 230, 236. 
 
 
 79. 
 
 384, 458. 
 
 18. 
 
 164,165,168,179,201, 
 
 40. 
 
 241. 
 
 
 80. 
 
 460. 
 
 
 203, 221, 397. 
 
 47. 
 
 93. 
 
 
 81. 
 
 460. 
 
 19. 
 
 165, 167, 397. 
 
 48. 
 
 91. 
 
 
 82. 
 
 455, 461, 462, 502. 
 
 20. 
 
 112. 
 
 49. 
 
 87. 
 
 
 83. 
 
 462. 
 
 21. 
 
 112, 127, 133, 134, 
 
 50. 
 
 103. 
 
 
 84. 
 
 463. 
 
 
 135, 136, 328, 377, 
 
 51. 
 
 85, 101. 
 
 
 85. 
 
 513. 
 
 
 391, 415. 
 
 52. 
 
 106, 196, 445. 
 
 
 86. 
 
 474. 
 
 22. 
 
 94, 127. 
 
 53. 
 
 445. 
 
 
 87. 
 
 65, 78, 79. 
 
 23. 
 
 140. 
 
 55. 
 
 281, 326, 329. 
 
 
 88. 
 
 514, 516. 
 
 24. 
 
 141, 176. 
 
 56. 
 
 151, 263, 268. 
 
 
 90. 
 
 512. 
 
 26. 
 
 114, 115, 177, 217. 
 
 57. 
 
 273, 277. 
 
 
 91. 
 
 223, 406. 
 
 27. 
 
 115,217. 
 
 58. 
 
 262, 264, 272. 
 
 
 92. 
 
 473, 476, 500. 
 
 28. 
 
 235. 
 
 50. 
 
 224. 
 
 
 93. 
 
 607. 
 
 29. 
 
 204, 210, 235, 270. 
 
 60. 
 
 242. 
 
 
 94. 
 
 128, 142, 299. 
 
 30. 
 
 235. 
 
 61. 
 
 215, 225. 
 
 
 
 
 31. 
 
 183, 196, 202. 
 
 62. 
 
 222. 
 
 
 
 
 U. S. SUPREME COURT RULES. 
 
 (See pages 687-704.) 
 
 
 Page. 
 
 
 
 Page. 
 
 
 Page. 
 
 3. 
 
 520. 
 
 15. 
 
 601. 
 
 
 24. 
 
 484. 
 
 5. 
 
 148, 153, 602 
 
 16. 
 
 622. 
 
 
 26. 
 
 619,620. 
 
 6. 
 
 279, 616, 617, 622. 
 
 17. 
 
 622. 
 
 
 27. 
 
 619. • 
 
 8. 
 
 603, 697, 608. 
 
 18. 
 
 622. 
 
 
 28. 
 
 617. 
 
 9. 
 
 608, 609, 610. 
 
 19. 
 
 620. 
 
 
 29. 
 
 606. 
 
 10. 
 
 484, 502, 610, 619. 
 
 20. 
 
 619, 
 
 622. 
 
 31. 
 
 610. 
 
 11. 
 
 608. 
 
 21. 
 
 621, 
 
 622. 
 
 32 
 
 600. 
 
 13. 
 
 395. 
 
 22. 
 
 622. 
 
 
 33. 
 
 608. 
 
 14. 
 
 610. 
 
 23. 
 
 624. 
 
 
 34. 
 
 548, 549, 607
 
 FEDERAL EQUITY PRACTICE. 
 
 CHAPTER I. 
 
 JURISDICTION. 
 
 § 1. Equitable Jurisdiction in General. — Equity is that system 
 of jurisprudence which was administered by the High Court of 
 Chancery of England in the exercise of its extraordinary juris- 
 diction, 1 and which has been amplified and extended by the more 
 modern decisions of the English and American courts. It owed 
 its origin to a desire upon the part of the English sovereigns 
 and their chancellors to supplement the deficiencies and soften 
 the rigors of the common law ; and whereas the well-springs of 
 this were such of the customs of the German tribes as had been 
 brought with them from their Fatherland by the Jutes and 
 Angles: 2 those of that, which was administered at first ex- 
 clusively by ecclesiastics, are in the canon, which was itself 
 derived from the greatest monument of the genius of ancient 
 Rome, the civil law. 3 Since the time of Nottingham, before 
 whom each succeeding chancellor had decided the cases brought 
 before him in accordance with his own notions of what was 
 proper, or in the language of Selden, 4 measured justice out by 
 the length of his foot, the same respect has been paid to pre- 
 cedent in the courts of equity and common law. But the rules 
 regulating the remedies administered by the former are much 
 more plastic. And even at the present time cases often occur 
 where judges sitting at equity, with the approval and assistance 
 of the profession, invent and adopt new remedies suited to a 
 state of society and of civilization unknown and not anticipated 
 when the procedure in chancery first assumed the form that 
 
 § 1. l Miiford's Pleadings; Bispham's 8 Langdell's Equity Pleading, Intro- 
 
 Equity, § 1. duction. 
 
 2 Holmes' Com. Law. * Selden's Table Talk, Title Equity. 
 
 1
 
 2 JURISDICTION. [CHAP. I. 
 
 it still substantially retains. 5 The chronicles of the growth 
 and development of equity abound with names well known to 
 the students, as well of general history as of jurisprudence. 
 Among them Wolsey, More, Bacon, Clarendon, Somers, and 
 Erskine are the most familiar to the former, while the members 
 of the profession look back with especial admiration upon the 
 careers of Nottingham, Hardwicke, Eldon, Westbury, Kent, 
 Story, and Taney. Although originally no one could seek their 
 aid who was not denied justice by the courts of common law ; 
 yet after he had once shown a title to their assistance, courts of 
 equity would almost always give a suitor complete relief in the 
 matter about which he complained. 6 And now that since the time 
 of Mansfield the courts of common law have, abandoning their 
 former jealousy, in many instances of their own accord as well as 
 under the compulsion of statutes, accepted doctrines first created 
 by courts of equity, 7 the latter have not felt obliged to relin- 
 quish the jurisdiction which they formerly acquired. 8 One of the 
 marked characteristics which distinguish equity from the common 
 law, is that, while the latter, as a general rule, acts against and 
 exercises control over property alone ; has but a very limited 
 and merely incidental power, mostly borrowed from chancery, 
 to enforce obedience to a personal command, its procedure being 
 founded upon the theory that the parties to an action owe no 
 obedience to the court; 9 and is consequently restricted in its 
 operation when the property which is the subject of a contention 
 is beyond the reach of its process : equity acts directly against 
 and exercises complete control over persons, and does not lose 
 jurisdiction when the parties are subject to its process, because 
 the property over which it thereby assumes control is beyond 
 the territory under those laws whence its own power is 
 derived. 10 
 
 5 Kennedy v. St. Paul & Pacific Rail- 9 Langdell's Eq. PI. § 40. 
 
 road Company, 2 Dillon, 448 ; Wallace 10 Archer o. Preston, 1 Eq. Cas. Ab. 
 
 v. Loomis, 97 U. S. 14G. .133, pl. 3, cited and followed in Arglasse 
 
 6 1 Fonblanque's Equity, b. i. chap. i. v. Muschamp, 1 Vernon, 75 ; s. c 1 
 § 3, note (/); Motteux v. The London Vernon, 135; Penn v. Lord Baltimore, 
 Assurance Co., 1 Atk. 545 ; Tayloe v. 1 Vesey Sr. 444 ; Massie v. Watts, 6 
 The Merchants' Fire Ins. Co., 9 How. Cranch, 148 ; Muller v. Dows, 94 U. S. 
 390, 405. 444, at pages 449-450. The authorities 
 
 7 Moses v. Macferlan, 2 Burrow, 1005; are well collected in a learned opinion by 
 Dickcrson v. Colgrove, 100 U. S. 578. Judge, subsequently Chief Judge, Henry 
 
 8 Putnam v. New Albany, 4 Bissell, E. Davies, in Gardner v. Ogden, 22 N. Y. 
 365. 327.
 
 § 2.] SUEVEY OF THE JURISDICTION OF COURTS OF EQUITY. 3 
 
 § 2. General Survey of the Jurisdiction of Courts of Equity. 
 
 The jurisdiction of courts of equity is exercised either for the 
 protection of rights which the common law does not recognize ; 
 or for the prevention or redress of wrongs for which the common 
 law affords no adequate remedy. A full consideration of this 
 topic is beyond the scope of this treatise. The following sum- 
 mary, although imperfect, may occasionally assist the reader. 
 The rights which a court of equity alone respects are: the rights 
 of beneficiaries under a trust, 1 either express or implied, — which 
 latter term includes those which are resulting 2 or constructive: 3 
 the right to be relieved from an obligation which has been en- 
 tered into, or to recover a right which has been lost by accident, 
 — which expression is said to include the cases where one has 
 become subject to a penalty or forfeiture, 4 or has lost a document 
 the possession of which was essential to his success in a legal 
 action, 5 and is also often used to bolster up a weak equity of 
 another kind — ; 6 by mistake, — which must be mutual, material, 
 and not caused by the negligence of the party seeking relief," and 
 which, if solely of a point of law, will very rarely release one 
 from his contract obligations — ; 8 by fraud, whether actual 9 or 
 constuctive ; 10 or by duress: 11 and the rights of those who are 
 justly entitled to compel election under a will, or an adjustment of 
 
 § 2. i Sturt v. Mellish, 2 Atk. 610 ; pag e 286 ; Stephenson v. Wilson, 2 
 
 New Orleans v. Morris, 105 U. S. 600. Vern. 325. 
 
 2 Dyer v. Dyer, 2 Cox Eq. Cas. 02; 8 Hunt v. Rousmanier's Admrs. 8 
 Hoxie v. Carr, 1 Sumner, 187. Wheaton, 174, 215; s. c. 1 Peters, 1, 14- 
 
 3 National Bank v. Insurance Co., Snell v. Insurance Company, 98* U. s! 
 104 U. S. 54, 64-71. 85 ; Pitcher v. Hennessey, 48 N. Y. 
 
 4 1 Spence Eq. 629, 630; Bispham's 415; Adair v. Brimmer, 74 N. Y. 539; 
 Eq. § 178. Mortgages are included Relief Fire Insurance Co. v. Shaw 94 
 under this head, Mitford's PI. 118-276; u. S. 574; Allen v. Galloway, 30 Fed. 
 Story's Eq. Jur. § 89. R. 4G6; Cooper v. Phibbs, L. R. 2 H. 
 
 5 Savannah National Bank v. Haskins, L. 170 ; Elliott v. Sacket, 108 U. S. 132 
 101 Mass. 370; Donaldson v. Williams, 142. 
 
 50 Mo. 408; Story's Eq. Jur. §84; 9 Cobbeltiom v. William, Chan. Cal. 
 
 Bispham's Eq. §§ 176, 177. II.; Rtonehouse v. Starishaw Chan. Cal 
 
 6 Story's Eq. Jur. §§ 90-09 ; Bispham's XXIX.; Bief v. Dyer, Chan. Cal. XI.; 
 Eq. §§ 182, 183. Cases where this head Bacon v. Bronson, 7 Johns. Ch. (N. Y.) 
 of equity is invoked for relief against a 194; Jones v. Bolles, 9 Wall. 364. 
 defective execution of a power are in- 10 Mackreth v. Fox, 4 Bro. P. C. 258; 
 eluded here. Ex parte Lacey, 6 Ves. 625 ; Villa v. Rodri- 
 
 7 Bispham's Eq. § 191 ; Whittemore v. guez, 12 Wall. 323, 339. 
 
 Farrington, 76 N. Y. 452 ; McFerran v. " " Nicholls v. NichoIIs, 1 Atk. 409 ; 
 
 Taylor, 3 Cranch, 281; Elliott v. Sack- Gould v. Okeden, 4 Bro. P. C. 198; Ba- 
 
 ett, 108 U. S. 132; Duke of Beaufort v. ker v. Morton, 12 Wall. 150. 
 Neeld, 12 Clark & Finnelly, 248, at
 
 4 JURISDICTION. [CHAP. I. 
 
 liabilities, 12 — under which terra are included set-off, 13 contribu- 
 tion, 14 exoneration, 15 and marshalling of securities. 16 The cases 
 where the jurisdiction of equity is exercised merely for the sake 
 of the remedy are where its interposition is needed to assist in 
 obtaining a judgment at law by compelling a discovery from a 
 defendant, 17 or the perpetuation of the testimony of witnesses, 18 
 or their examination abroad, 19 when it is feared that, on account 
 of death, illness, or absence, they cannot be obliged to attend upon 
 the trial ; to satisfy a judgment out of property of a debtor which 
 cannot be reached by an execution ; 20 to prevent a threatened 
 breach of a right, 21 or compel the performance of a duty, 22 the 
 commission or omission of which, respectively, would inflict such 
 an irreparable injury upon a person, that a judgment for 
 damages, or the cumbrous legal process of ejectment, replevin, 
 detinue, or account render, would be no adequate remedy for 
 the loss thereby occasioned ; to prevent a needless multiplicity 
 of suits ; 23 and to compel the cancellation or execution of instru- 
 ments, 24 the existence or want of which is a cloud upon, or an 
 apparent flaw in a person's title, or would render it difficult for 
 him to resist an unjust demand, or to dispose of property by sale. 
 § 3. Constitutional Provisions affecting the Jurisdiction of the 
 Federal Courts. — The Constitution of the United States provides 
 that, " The judicial power " of the United States " shall extend to 
 
 12 Arnold i\ Kempstead, 1 Ambler, 4G6; Dursley v. Berkeley, 6 Ves. 251. See 
 Jones v. Collier, 2 Ambler, 730 ; Herbert U. S. Rev. Stat. §§ 863-867. 
 
 v. Wren, 7 Cranch, 370, 378. w Moodalay v. Morton, 1 Bro. C.C. 409. 
 
 13 Chapman v. Derby, 2 Vera. 117; 20 Angell v. Draper, 1 Vera. 399 ; Scot- 
 Lord Lanesborough v. Jones, 1 P. Wins, tish American Mortgage Co. v. Follans- 
 325 ; 2 Story's Equity Jurisprudence, bee, 14 Fed. R. 125. 
 
 § 1433; Story, J., in Greene v. Darling, 21 Robinson v. Lord Byron, 1 Bro. C.C. 
 
 5 Mason, 201, 207-213. 588 : Osborn v. Bank of the United States, 
 
 14 Layer v. Nelson, 1 Vera. 456 ; How- 9 Wheat. 738. 
 
 ards v. Selden, 5 Federal Reporter, 465, 22 Stribley v. Hawkie, 3 Atk. 275; 
 
 473. Huguenin v. Baseley, 15 Ves. 180; Hunt 
 
 15 Galton v. Hancock, 2 Atk. 425; v. Rousmanier's Admrs., 1 Pet. 1; Wil- 
 Walker v. Jackson, 2 Atk. 625 ; Bank lard v. Tayloe, 8 Wall. 557. 
 
 of U. S. v. Beverly, 1 How. 134, 151. 23 Freeman v. Pontrell, Chan. Cal. 
 
 is Aldrich v. Cooper, 8 Ves. 394; XIII.; Earl of Bath t\ Sherwin, 4 Bro. 
 
 Trimmer v. Bayne, 9 Ves. 209 ; 1 Story's P. C. 373; Woods v. Monroe, 17 Mich. 
 
 Eq. Jur. § 033. 238 ; Cummings v. National Bank, 101 U. 
 
 17 Finch v. Finch, 2 Ves. Sr. 492; S. 153 ; Dodge v. Briggs, 27 Fed. R. 161. 
 Moodalay v. Morton, 1 Bro. C. C. 469 ; 24 Pierce v. Webb & Stalker, note to 
 
 Brown v. Swann, 10 Pet. 497, 500: Ryan v. Mackmath, 3 Bro. C. C. 15; 
 
 Heath v. Erie Ry., 9 Blatchf. 316. Peake v. Highfield, 1 Russ. 559, and cases 
 
 i g Earl of Suffolk u. Green, 1 Atk. 450 ; cited ; Bunce v. Gallagher, 5 Blatchf. C.C. 
 
 Pearson v. Ward, 1 Cox Eq. 177; Lord 481; Boyce v. Grundy, 3 Pet. 210.
 
 § 4.] DISTINCTION BETWEEN LAW AND EQUITY IN FEDEEAL COURTS. 5 
 
 all Cases in Law and Equity, arising under this Constitution, the 
 Laws of the United States, and Treaties made, or which shall be 
 made, under their Authority ; to all Cases affecting Ambassadors, 
 other public Ministers and Consuls ; to all Cases of Admiralty 
 and maritime Jurisdiction ; to Controversies to which the United 
 States shall be a Party ; to Controversies between two or more 
 States ; between a State and Citizens of another State ; between 
 Citizens of different States ; between Citizens of the same State 
 claiming Lands under Grants of different States ; and between a 
 State, or the Citizens thereof, and foreign States, Citizens, or 
 Subjects." 1 But " the Judicial power of the United States shall 
 not be construed to extend to any suit in law or equity, com- 
 menced or prosecuted against one of the United States by 
 Citizens of another State, or by Citizens or Subjects of any 
 Foreign State." 2 " In all cases affecting Ambassadors, other 
 public Ministers, and Consuls, and those in which a State shall 
 be Party, the Supreme Court shall have original Jurisdiction," ; 
 although " such inferior Courts as the Congress may from time 
 to time ordain and establish " 4 may also have original juris- 
 diction thereof. 5 " In all the other Cases before mentioned, the 
 Supreme Court shall have appellate Jurisdiction, both as to 
 Law and Fact, with such Exceptions and under such Regula- 
 tions as the Congress shall make." 6 In no other cases can it 
 have original jurisdiction. 7 
 
 § 4. The Distinction between Law and Equity in the Federal 
 Courts. — The fact that those who framed the Constitution 
 thought it necessary to separately mention law and equity, when 
 blocking out the jurisdiction of the Federal courts, has caused 
 many judges to think, and even to say in their opinions, that it 
 was thereby evidently intended that these branches of the law 
 should always be kept apart. 1 The better opinion, however, 
 
 § 3. l The Constitution, art. iii. § 2. 7 Marbury v. Madison, 1 Cranch, 137 ; 
 
 2 Eleventh Amendment to the Consti- Ex parte Vallandigham, 1 Wall. 24:). 
 tution. § 4. 1 Parsons o. Bedford, 3 Pet. 433 ; 
 
 3 The Constitution, art. iii. § 2. Bennett v. Butterworth, 11 How. 669, 
 
 4 lb. § 1. 674; Hippy. Babin, 1'.' I low. 271, at page 
 6 Ames v. Kansas, 111 U. S. 449; Bors 277 ; Fenn v. Holme, 21 How. 481, 486; 
 
 v. Preston, 111 U. S. 252 ; United States v. Costs in Civil Cases, 1 Blatcbf. C C 652, 
 
 Ravara, 2 Dallas, 297 ; Gittings v. Craw- 654 ; Butler v. Young, 1 Flippin, 276, 278; 
 
 ford, Taney's Decisions, 1 ; St. Luke's Meade v. Beale, Taney, 339, at page 361 ; 
 
 Hospital v. Barclay, 3 Blatcbf. 259 ; Gra- Thompson v. Railroad Companies, 6 Wall, 
 
 ham i'. Stucken, 4 Blatchf. 50. 134 ; Reubens v. Joel, 13 N. Y. 488, at 
 
 c The Constitution, art. iii. § 2. page 497.
 
 6 JURISDICTION. [CHAP. I. 
 
 seems to be that this distinction between law and equity is 
 enforced by the Constitution only to the extent to which the 
 Seventh Amendment forbids any infringement of the right of 
 trial by jury, as fixed by the common law. 2 Yet, although a great 
 number of the States of the American Union, and even England 
 itself has fused together the two systems ; in the courts of the 
 United States, while the same judges have jurisdiction in each, 
 the common law and equity are still as distinct as they were in 
 the time of Coke and Bacon. 
 
 § 5. General Rules affecting the Jurisdiction in Equity of the 
 Federal Courts. — The jurisdiction in equity of the Federal courts 
 is, subject to the limitations of the Constitution, substantially 
 the same as that of the English Court of Chancery ; * although 
 they do not exercise those powers not judicial which were exer- 
 cised over the persons and estates of infants, idiots, lunatics, and 
 charities by the Lord Chancellor, as the representative of the 
 sovereign and by virtue of the latter's prerogative as parens 
 patriae? It was said by Chief Justice Taney, that the Consti- 
 tution of the United States grants only judicial power at law 
 and in equity to its courts ; that is, powers at that time tmcler- 
 stood and exercised as judicial, in the courts of common law and 
 equity in England. " And it must be construed according to the 
 meaning which the words used conveyed at the time of its 
 adoption ; and the grant of power cannot be enlarged by resort- 
 ing to a jurisdiction which the Court of Chancery in England, 
 centuries ago, may have claimed as a part of its ordinary judicial 
 power, but which had been abandoned and repudiated as 
 untenable on that ground, by the court itself, long before the 
 Constitution was adopted." 3 The same judge also said that 
 it was undoubtedly true, in regard to equitable rights, that the 
 power of the courts of chancery of the United States, is, under 
 the Constitution, to be regulated by the law of the English 
 chancery; that is to say, the distinction between law and equity 
 as recognized in the jurisprudence of England is to be observed 
 
 2 Mr. Justice Matthews in Root v. Rail- v. Morey, 2 Story, 555, at page 567 ; Root 
 
 way Co., 105 U. S. 189, 206. Compare v. Railway Company, 105 U. S. 189, at 
 
 Ex parte Boyd, 105 U. S. 647. page 207. 
 
 § 5. ! Robinson v. Campbell, 3 Wheat. 2 Fontain v. Ravenel, 17 How. 369, at 
 
 212, at page 221 ; Fenn v. Holme, 21 page 391 ; Loring v. Marsh, 2 Clifford, 
 
 How. 481, at page 484; Meade v. Beale, 469, at page 492. 
 
 Taney, 339, at page 361 ; Gordon v. Ho- 3 Chief Justice Taney in Fontain v. 
 
 bart, 2 Sumner, 401, at page 405 ; Fletcher Ravenel, 17 How. 369, 394, 395.
 
 § 5.] DISTINCTION BETWEEN LAW AND EQUITY IN FEDEEAL COURTS. 7 
 
 in the courts of the United States, in administering the remedy 
 for an existing right. The rule applies to the remed}' and not 
 the right ; and it does not follow that every right given by the 
 English law, and which at the time the Constitution was adopted 
 might have been enforced in the Court of Chancery, can also be 
 enforced in a court of the United States ; the right must be 
 given by the law of the State or of the United States. 4 The 
 revised statutes of the United States provide that : " Suits in 
 equity shall not be sustained in either of the courts of the 
 United States in any case where a plain, adequate, and 
 complete remedy may be had at law." 5 The Supreme Court 
 has construed this statute substantially as follows : The effect 
 of the provision of the Judiciary Act is that whenever a court 
 of law is competent to take cognizance of a right, and has 
 power to proceed to a judgment which affords a plain, ade- 
 quate, and complete remedy, without the aid of a court of 
 equity, the plaintiff must proceed at law, because the defendant 
 has a constitutional right to a trial by jury. 6 " This enactment 
 certainly means something ; and if only declaratory of what was 
 always the law it must, at least, have been intended to emphasize 
 the rule, and to impress it upon the attention of the courts." 7 
 " Accordingly, a suit in equity to enforce a legal right can be 
 brought only when the court can give more complete and 
 effectual relief in kind or in degree on the equity side than on 
 the common law side ; as, for instance, by compelling a specific 
 performance, or the removal of a cloud on the title to real estate; 
 or preventing an injury for which damages are not recoverable 
 at law, as in Watson v. Sutherland, 5 Wall. 74 ; or where 
 an agreement procured by fraud is of a continuing nature, 
 and its rescission will prevent a multiplicity of suits." 8 
 " By inadequacy of the remedy at law is here meant, not 
 that it fails to produce the money, — that is a very usual 
 result in the use of all remedies, — but that in its nature or 
 character it is not fitted or adapted to the end in view." 9 
 
 4 Meade v. Beale, Taney, 339, 361. » N. Y. Guaranty Co. v. Memphis 
 
 6 U. S. R. S. § 723. Water Co., 107 U. S. 205, 214 j per 
 
 6 Hipp v. Babin, 19 How. 271 ; Insur- Bradley, J. 
 
 ance Co. v. Bailey, 13 Wall. 616, 621 ; « Buzard v. Houston, 119 U. S. 347, 
 
 Grand Chute v. Winegar, 15 Wall. 373, 351, 352 ; per Gray, J. 
 
 375; Lewis v. Cocks, 23 Wall. 466, 470 ; 9 Thompson v. Allen County, 115 U. S. 
 
 Root v. Railway Co. 105 U. S. 189, 212 ; 550, 554 ; per Miller, J. 
 
 Killian v. Ebbinghus, 110 U. S. 568, 573.
 
 8 JUEISDICTION. [CHAP. I. 
 
 There may consequently be cases over which the English 
 courts of chancery would have taken jurisdiction, which 
 are not cognizable by the Federal courts when sitting at 
 equity. 10 
 
 " The adequate remedy at law which is the test of equitable 
 jurisdiction in these courts, is that which existed when the Ju- 
 diciary Act of 1789 was adopted, unless subsequently changed 
 by Congress." u Whether the equitable jurisdiction is lost when 
 a statute of the United States gives the same or adequate relief 
 at law, — as, for example, in the case of discovery, — has not 
 yet been settled. 12 If a statute of the United States creates a 
 new right, the remedy will be in equity if the relief thereby 
 afforded is in analogy with a species of relief ordinarily given by 
 equity alone. 13 
 
 § 6. State Statutes cannot impair the Jurisdiction nor regulate 
 the Practice of Federal Courts of Equity. — No State statute giving 
 one of its courts — for example, a court of probate — exclusive 
 jurisdiction of a certain class of litigation can impair the juris- 
 diction of the Federal courts. 1 No State statute enlarging the 
 powers of courts of common law can impair the jurisdiction of 
 a Federal court of equity. 2 No State statute diminishing or 
 destroying an equitable remed}% or in any way regulating the 
 practice in courts of equity, can have any effect upon the juris- 
 diction or practice of the Federal courts. 3 Such are statutes 
 requiring a mortgagor to tender the debt secured by his mort- 
 gage before filing a bill to redeem the mortgaged premises ; 4 
 requiring a bill to foreclose a mortgage given to secure a judg- 
 ment to show that execution has been issued under the judgment 
 
 M Buzard v. Houston, 119 U. S. 347, v. Little, 101 U. S. 216 ; Manufacturing 
 
 352. Co. v. Bradley, 105 U. S. 175. 
 
 11 McConihay v. Wright, 121 U. S. § 6. i Suydam v. Broadnax, 14 Pet. 67 ; 
 201, 206; per Matthews, J. Hull v. Dills, 19 Fed. R. 657. 
 
 12 Compare Vaughan v. Central Pad- 2 McConihay v. Wright, 121 U. S. 201, 
 fie R. R. Co., 4 Sawyer, 280 ; Pratt v. 206 ; and cases cited. 
 
 Northam, 5 Mason, 95; Peters v. Pre- 3 Boyle v. Zacharie, 6 Pet. 648 
 
 vost, 1 Paine, 64; Home Ins. Co v. Bein v. Heath, 12 How. (D. S.) 168, 179 
 
 Stanchfield, 1 Dill. 424 ; Markey v. Mut. Noonan v. Lee, 2 Black, 499, 509 ; Thomp 
 
 Ben. Life Ins. Co., 6 Ins. L.J. 537 ; Heath son ». Railroad Companies, 6 Wall. 134 
 
 ». Erie Railroad Co., 9 Blatchf. 316; Cowles v. Mercer County, 7 Wall. 118 
 
 Drexel v. Berney, 14 Fed. R. 268 ; Post Payne v. Hook, 7 Wall. 425 ; Railway 
 
 v. Toledo, C, &c. R. R. Co., 144 Mass. Company v. Whitton's Administrator, 
 
 341 ; 4 New England Rep. 221. 13 Wall. 270, 285 ; Smith v. Railroad 
 
 1 3 Edgell v. Haywood, 3 Atk. 354 ; Company, 99 U. S. 398. 
 
 Hornor v. Henning, 93 U. S. 228 ; Terry 4 Gordon v. Hobart, 2 Sumner, 401.
 
 § 7.] EFFECT OF STATE STATUTES ON FEDEEAL COURTS OF EQUITY. 9 
 
 and returned unsatisfied; 5 requiring leave to be obtained from a 
 State court before a suit can be brought to enforce a judgment 
 therein entered, 6 or the presentation of a claim to the comp- 
 troller before a suit can be brought against a city ; 7 requiring a 
 bond to be given before an injunction can be granted ; 8 or regu- 
 lating the form of the security then required or the proceedings 
 to enforce the same ; 9 authorizing persons to agree upon a state- 
 ment of facts, and to stipulate that the court take jurisdiction 
 to try a cause and render a decree without pleadings; 10 and, at 
 least when the suit is brought in a district not including the 
 State that passed the statute, one that permits a debtor to file 
 a bill to compel the return or cancellation of securities for a 
 usurious debt, without payment or the offer of payment of the 
 amount borrowed with lawful interest. 11 
 
 § 7. State Laws creating new Rights are enforced by Federal 
 Courts of Equity. — If, however, the customary 1 or statute 2 law 
 of a State has created a new right, the Federal courts will en- 
 force the same at law or equity, if it falls within the remedies 
 authorized by either branch of their jurisdiction. Such are 
 statutes giving a mortgagor or his judgment creditors a certain 
 time within which to redeem land after a foreclosure sale; 3 au- 
 thorizing a suit to set aside the probate of a will, or a will itself, 
 for fraud; 4 authorizing a person in possession of land, and un- 
 molested, 5 or even one out of possession, 6 to sustain a bill to 
 determine and quiet the title to the same ; imposing on stock- 
 holders individual liability to the creditors of their corporations ; 7 
 making an assessment for opening streets a lien upon abutting 
 
 6 Dow v. Chamberlin, 5 McLean, 281. 2 Clark v. Smith, 13 Pet. 195; Fitch 
 
 6 Phelps v. O'Brien County, 2 Dill 518. v. Creighton, 24 How. (U. S ) 159 ; Brine 
 
 7 Gamewell Fire Alarm Tel. Co. v. v. Insurance Company, 96 U. S. 627 ; 
 Mayor., &c, 31 Fed. K. 312. Mills v. Scott, 99 U. S. 25 ; Van Norden 
 
 8 Beini;. Heath, 12 How. (U. S.) 168, v. Morton, 99 U. S. 378; Cummings v. 
 178. National Bank, 101 U. S. 153, 157; Sol- 
 
 9 Bein v. Heath, 12 How. (U. S.) 168 ; land v. Challen, 110 U. S. 15 ; Reynolds 
 Russell v. Farley, 105 U. S. 437 ; Meyers v. Crawfordsville First National Bank, 
 v. Block, 120 U. S. 206, 211. 112 U. S. 405. 
 
 10 Nickerson v. Atchison, T., & Santa 8 Brine v. Insurance Company, 9G U. S. 
 Fe R. R. Co., 1 McCrary, 383. 627 ; Orvis v. Powell, 98 U. S. 176, 178 ; 
 
 11 Matthews v. Warner, 6 Fed. R. 461, Connecticut Mutual Life Insurance Com- 
 465 ; affirmed without passing on this pany v. Cushman, 108 U. S. 51. 
 
 point, 112 U. S. 600. 4 Broderick's Will, 21 Wall. 503, 519, 
 
 § 7. 1 Neves v. Scott, 13 How. (U. S.) 520. 
 
 268, 271 ; Gaines v. Fuentes, 92 U. S. 10, 5 Clark v. Smith, 13 Pet. 195. 
 
 20; Ellis v. Davis, 109 U. S. 485; Lorman 6 Holland v. Challen, 110 TJ. S. 15. 
 
 v. Clarke, 2 McLean, 568, 577. 7 Borland v. Haven, 37 Fed. R. 394.
 
 10 JUKISDICTION. [CHAP. I. 
 
 lands, which can be foreclosed by the city or its assignee ; 8 
 authorizing the filing of a creditor's bill on the appointment of 
 a receiver under certain conditions, which in the Federal courts 
 must then also be performed; 9 authorizing an injunction to be 
 granted in a new class of cases; 10 empowering a guardian with 
 the permission of the State court to mortgage his ward's estate, 
 but not clauses providing that such a mortgage can only be fore- 
 closed in the court which authorized its execution. 11 
 
 § 8. State Statutes of Limitation. — Federal courts of equity 
 usually follow by analogy State statutes of limitation, 1 especially 
 in foreclosure suits 2 and suits against executors and adminis- 
 trators ; 3 but, at least when their jurisdiction is not concurrent 
 with courts at law, 4 they do not consider themselves bound by 
 such statutes. 5 It has been said that a Federal court of equity 
 will never follow a State statute of limitation when thereby 
 manifest wrong and injustice would be wrought. 6 A State 
 statute of limitation cannot bar the United States. 7 Other- 
 wise, the courts of the United States in actions at common law 
 not founded upon Federal statutes, are bound by State statutes 
 of limitation. 8 The effect of such a statute upon actions at 
 common law to enforce rights created by Federal statutes, such 
 as patents and copyrights, has been the subject of conflicting 
 adjudications. 9 
 
 8 Fitch v. Creighton, 24 How. (U. S.) U. S. 130, 137 ; Etting v. Marx's Exeeu- 
 159. tor, 4 Fed. R. 673. 
 
 9 Flash v. Wilkerson, 22 Fed. R. 689; 6 Fogg v. St. Louis, H., & K. R. R. Co., 
 Fechheimer v. Baum, 37 Fed. R. 167; 17 Fed. R. 871, 873; Story's Eq. Jur., 
 T. & W. M. Co. v. Shatto, 34 Fed. R. 380. § 1521. 
 
 10 Cummings v. National Bank, 101 7 United States v. Thompson, 98 U. S. 
 
 TJ. S. 153, 157. 486 ; United States v. Nashville, C. & St. 
 
 " Davis v. James, 2 Fed. R. 618. L. Ry. Co., 118 U. S. 120; United States 
 
 § 8. 1 Wagner v. Baird, 7 How. 234, 258; v. Beebe, 127 U. S. 338 ; United States v. 
 
 Broderick's Will, 21 Wall. 503 ; Godden Insley, 130 U. S. 263. 
 
 v. Kimmell, 99 U. S. 201 ; Meath v. Phil- « U. S. R. S. § 721 ; McCluny v. Silli- 
 
 lips County, 108 U. S. 553 ; Kirby v. L. man, 3 Pet. 270 ; Amy v. Dubuque, 98 
 
 S. & M. S. R. R., 120 U. S. 130 ; Pratt v. U. S. 470. 
 
 Northam, 5 Mason, 95, 112 ; per Story, J. 9 That they do not affect such actions 
 
 2 Cleveland Insurance Company v. was held in Collins v. Peebles, 2 Fisher's 
 Reed, 1 Biss. 180 ; Reeves v. Vinacke, Pat. Cas. 541, per Swayne, J. ; Parker 
 1 McCrary, 213, 217 ; per Nelson and v. Hallock, 2 Fisher's Pat. Cas. 543, n. per 
 Dillon, JJ. Grier, J. ; Read v. Miller, 2 Biss. 12, per 
 
 3 Pulliam v. Pulliam, 10 Fed. R. 53 ; McDonald, J. ; WetheriU v. New Jersey 
 Broderick's Will, 21 Wall. 503. Zinc Co. 1 Ban. & A. 105, per McKennan, 
 
 4 Wagner v. Baird, 7 How. 234,258; J.; Anthony v. Carroll, 2 Ban. & A. 195, per 
 Godden v. Kimmell, 99 U. S. 201. Shepley, J. ; Sayles v. L. S. & M. S. Ry. 
 
 e Kirby v. L. S. & M. S. R. R., 120 Co., 9 Fed. R. 515, per Harlan, J.; Sayles
 
 § 9.] PKOPEETY IN THE CUSTODY OF A STATE COUET. 11 
 
 § 9. Property in the Custody of a State Court. — A court of the 
 United States, through a spirit of judicial comity, will usually 
 refuse to interfere with property in the custody of a State court. 1 
 Even if the custody of the State court were acquired by fraud, a 
 court will not interfere so long as the State court retains its hold 
 upon the property. 2 It has been held too late to raise this objection 
 to the jurisdiction of the State court after the trial of an action 
 at common law. 3 This rule did not prevent the filing of a bill in 
 equity against an administrator or an executor during the pen- 
 dency of probate proceedings in a State court ; 4 nor the filing of a 
 bill to set aside or stay proceedings upon a judgment in a State 
 court; 5 nor, under the Judiciary Act of 1875, the removal to a 
 Federal court of a suit in equity in the course of which a State 
 court had appointed a receiver; 6 or had taken property into its 
 possession under a common-law writ. 7 Property is deemed to be 
 in the custody of a court from the time when a suit or action seek- 
 ing to have it put there has been actually begun, either by levy 
 under a writ in a proceeding in rem, or by the filing of a bill pray- 
 ing the appointment of a receiver and the service of process ; 8 and 
 it so continues until the cause is practically terminated, although 
 
 v. Dubuque & S. C. Ry. Co., 9 Fed. R. 2 Attleborough National Bank v. N. 
 
 516, per Dillon and Love, JJ. ; Wood v. W. Manuf. & Car Co., 28 Fed. R. 113. 
 Cleveland Rolling Mill, 4 Fisher's Pat. 3 Gilman v. Perkins, 7 Fed. R. 887. 
 
 Cas. 550, per Swayne and Sherman, JJ. ; 4 Payne v. Hook, 7 Wall. 425 ; Yonley 
 
 May v. County of Fond du Lac, 27 Fed. v. Lavender, 21 Wall. 270; Chapman v. 
 
 R. 691 ; May v. County of Logan, 30 Fed. Borer, 1 Fed. R. 274 ; Hull v. Dills, 19 
 
 R. 250. See also Schreiber v. Sbarpless, Fed. R. 657. 
 
 17 Fed. R. 589. Contra, Parker v. Hawk, 5 Barrow v. Hunton, 99 U. S. 80 ; 
 
 2 Fisher's Pat. Cas. 58, per Leavitt, J. ; Sahlgard v. Kennedy, 2 Fed. R. 295. 
 Parker v. Hall, 2 Fisher's Pat. Cas. 62, 6 In re Iowa & Minnesota Construc- 
 
 note, per McLean and Leavitt, JJ. ; Rich tion Company, 10 Fed. R. 401. 
 v. Ricketts, 7 Blatchf. 230, per Hall, J. ; 7 Kern v. Huidekoper, 103 U. S. 485, 
 
 Sayles v. O. C. R. R. Co., 6 Saw. 31, per 491, 492. 
 
 Deady, J.; Hayden v. Oriental Mills, 15 8 Taylor v. Carryl, 20 How. (U. S.) 
 
 Fed. R. G05, per Lowell, J. 583 ; Heidritter v. Elizabeth Oil-cloth 
 
 § 9. l Hagan v. Lucas, 10 Pet. 400; Company, 112 U. S. 294; Levi v. Colum- 
 
 TayJor v. Carryl, 20 How. 583 ; Peale v. bia Insurance Company, 1 Fed. R. 206 ; 
 
 Phipps, 14 How. 368; Levi v. Columbia Hubbard v. Bellew, 3 Fed. R. 447 ; Union 
 
 Insurance Company, 1 Fed. R. 206 ; Hub- Mutual Life Insurance Company v. Uni- 
 
 bard v. Bellew, 3 Fed. R. 447 ; Union Mu- versity of Chicago, 6 Fed. R 443 ; Hutch- 
 
 tual Life Ins. Company v. University of inson v. Green, 6 Fed. R. 833. But see 
 
 Chicago, 6 Fed. R. 443 ; Hutchinson v. Dwight v. Central Vermont R. R. Co., 9 
 
 Green, 6 Fed. R. 833, 836-839 ; Hamilton Fed. R. 785 ; Webb v. Vermont Central 
 
 v. Chouteau, 6 Fed. R. 339 ; Heidritter R. R. Co., 9 Fed. R. 793 ; Owens v. Ohio 
 
 v. Elizabeth Oil-cloth Company, 112 U. S. Central R. R. Co., 20 Fed. R. 10. 
 294. But see Dwight v. Central Vermont 
 R. R. Co., 9 Fed. R. 785.
 
 12 JURISDICTION. L CHAP - L 
 
 no formal termination is absolutely essential. 9 If the suit be first 
 beoun in a Federal court, that court will maintain and enforce 
 its right to the custody of the property. 10 In one case, where a 
 receiver had been appointed, in a suit begun in a State court, 
 after a bill filed in a Federal court praying relief concerning the 
 same property had been dismissed by a decree, the Federal court 
 subsequently opened the decree, and appointed a receiver of the 
 property upon the filing of a supplemental bill at the same term. 11 
 § 10. Property in the Custody of a Federal Court. — The rules 
 which apply between State and Federal courts also regulate con- 
 flicts as to jurisdiction between different Federal courts. 1 
 
 § 11. Illustrations of Equitable Jurisdiction in the Federal Courts. 
 — The following instances where Federal courts of equity have 
 assumed, and where they have refused, to take jurisdiction in 
 equity, the subject-matter and the parties being within their 
 jurisdiction, although by no means exhaustive, may be useful to 
 the practitioner. It has been held that a bill in equity will be 
 sustained when filed by the United States to enforce its priority 
 of payment out of a trust fund, 1 and to cancel a land patent, 2 
 or a patent for an invention 3 which had been obtained by 
 fraud, 4 or a land patent which had been by a mistake of law 
 issued in violation of a statute ; 5 by a municipal corporation to 
 enjoin the sale on execution of property held by it in trust; 6 
 by a legatee against an executor, 7 and by one of the next of 
 kin against an administrator and his sureties, 8 to recover the 
 complainant's share of a decedent's estate ; by a married woman 
 
 9 Buck v. Piedmont & A. Life In- 3 United States r. Am. Bell Telephone 
 
 surance Company, 4 Fed. E. 849; An- Co., 128 U. S. 315; United States v. Gun- 
 
 drews v. Smith, 5 Fed. R. 833. ning, 18 Fed. R. 511 ; s. c. 22 Fed. R. 
 
 !0 Heidritter v. Elizabeth Oil-Cloth Co., G53. Contra, Attorney-General v. Rum- 
 
 112 U. S. 294; Sharon v. Terry, 30 Fed. ford Chemical Works, 2 Ban. & A. 298; 
 
 R. 337. United States v. Am. Bell Telephone 
 
 11 Union Trust Company v. Rockford, Co., 32 Fed. R. 591 ; United States v. 
 
 R. I., & St. L. R. R. Co., 6 Biss. 197. Frazer, 22 Fed. R. 106. 
 
 §10. 1 Hurdu. Moiles, 28 Fed. R.897; 4 Moffat v. United States, 112 U. S. 
 
 Central Trust Co. v. East Tenn., Va. & 24 ; United States v. Gunning, 18 Fed. 
 
 Ga. R. Co., 30 Fed. R. 895. But see Wa- R. 511 ; s. c. 22 Fed. R. 653. 
 
 bash cases, especially Atkins v. W. St. L. 5 Mullan v. United States, 118 U. S. 
 
 & P. Ry. Co., 29 Fed. R. 161 ; Central 271 ; McLauglin v. United States, 107 
 
 Trust Co. v. W. St. L. & P. Ry. Co., 29 Fed. U. S. 526 ; Western Pacific Railroad Co. 
 
 R. 618, and Mercantile Tr. Co. v. Kana- v. United States, 108 U. S. 510. 
 
 wha & O. Ry. Co., 39 Fed. R. 337. 6 New Orleans v. Morris, 105 U. S. 600. 
 
 § 11. i Hunter v. United States, 5 Pet. 7 Mayer v. Foulkrod, 4 Wash. C. C. 349. 
 
 172. 8 Payne v. Hook, 7 Wall. 425; Tratt 
 
 - Moffat v. United States, 112 U. S. 24. v. Northam, 5 Mason, 95.
 
 § 11.] EQUITABLE JURISDICTION OF THE FEDERAL COURTS. 13 
 
 to recover money which belongs to her separate estate ; 9 by a 
 single man to have declared null and void a paper purporting 
 to be a marriage contract executed by him ; 10 to set aside a 
 contract obtained by fraud ; n to reform an instrument which 
 was executed by mistake; 12 to set aside a conveyance obtained 
 for a grossly inadequate consideration from a man in a state of 
 intoxication, partly caused by the acts of the defendant; 13 by 
 the beneficiary of a trust against his trustee and a debtor of 
 the trust estate ; 14 by the holder of a corporate bond to enforce 
 his lien upon the tolls pledged to secure its payment; 15 by a 
 stockholder in a corporation to recover its money fraudulently 
 misappropriated by its directors ; 16 by a stockholder against a cor- 
 poration to compel the retransfer of stock fraudulently trans- 
 ferred to another ; 17 to compel specific performance of a contract 
 for the sale of corporate stock, 18 unless, possibly, when its posses- 
 sion is desired for unconscientious or speculative purposes, 19 or the 
 stock is of a kind that can be readily bought in open market; 
 to compel specific performance of a contract to issue an insurance 
 policy, and in the same suit to compel payment of the polic}^ ; 20 in 
 Virginia, a bill by a creditor of an insolvent firm which is dispos- 
 ing of its assets in fraud of creditors, when filed in behalf of the 
 other creditors as well as himself, and praying the appointment 
 of a receiver, an injunction against any interference by others 
 with the firm assets, and the distribution of those assets among 
 the creditors equally : 21 a bill by a trustee and his beneficiary to 
 obtain possession of land subject to the trust; 22 to enjoin a town- 
 ship from setting up as a defence to an action upon bonds issued 
 by it the accidental omission of the town seal thereon; 23 to en- 
 force a decree for the payment of money, at least when made by 
 another court of equity ; u to enforce the payment of alimony 
 
 9 Hunt v. Danforth, 2 Curt. 592. w Mississippi & Missouri Railroad Com- 
 
 !» Sharon v. Hill, 20 Fed. R. 1. pany v. Cromwell, 91 U. S. 643; Foil's 
 
 11 Boyce v. Grundy, 3 Pet. 210. Appeal, 91 Pa. St. 434, 438. 
 
 12 Walden v. Skinner, 101 U. S. 577. -' Tayloe v. The Merchants' Fire Ins. 
 
 13 Thackrah v. Haas, 119 TJ. S. 499. Co., 9 How. 390; Hebert v. Mutual Life 
 i* United States v. Myers, 2 Brock. 516. Ins. Co., 12 Fed. R. 807 ; Brugger v. State 
 1 5 Valletta v. White Water Valley Investment Ins. Co., 5 Saw. 304. 
 
 Canal Co., 4 McLean, 192. ^ Fink v. Patterson, 21 Fed. R. 602. 
 
 i« Gindrat v. Dane, 4 Cliff. 260. 2 - Harrison v. Rowan, 4 Wash. C. C. 202. 
 
 17 Kilgour v. New Orleans Gas-Light 23 Bernards Township v. Stebbins, 109 
 Company, 2 Woods, 144. U. S. 341. 
 
 18 Manufacturing Company v. Bradley, 24 Shields u. Thomas, 18 How. 253. 262. 
 105 U. S. 175. But see Tilford v. Oakley, Hemps. 197.
 
 14 JURISDICTION. [CHAP. I. 
 
 directed to be paid in the final judgment or decree of a State 
 court ; 25 to set aside a judgment obtained by accident, mistake, 
 or fraud : 26 a bill by a creditor of a decedent to set aside a fraud- 
 ulent conveyance of his estate made after his death by the 
 order of a court ; 2 " by a judgment creditor to apply to the satis- 
 faction of his debt any interest which his debtor may hold in 
 a patent or copyright, 28 or in a license to use a patented inven- 
 tion ; 29 in the absence of any statutory restrictions, by the resident 
 taxpayers in a county to prevent an illegal disposition of the 
 moneys of the county, or the illegal creation of a debt which 
 they in common with other property-holders of the county may 
 otherwise be compelled to pay ; 30 for an injunction against irre- 
 mediable injury to property pending an action of ejectment, 
 though filed by a party out of possession ; 31 under special cir- 
 cumstances, to compel specific performance of a railroad lease 
 and a guarant} r of the covenants therein contained ; 32 to compel 
 an accounting by persons standing in a trust relation to the 
 plaintiff, 33 and by those against whom an action for account ren- 
 der would lie at common law, 34 namely, guardians in socage, 
 bailiffs, receivers, and merchants in their dealings with each 
 other ; 35 but not otherwise, 36 unless the accounts are mutual, or 
 very complicated and intricate, 37 or the accounting is supplemen- 
 tal to some other equitable relief. 38 For example, an account 
 will not be decreed against the infringer of a patent upon a bill 
 filed after the term of the patent has expired. 39 But a bill 
 filed only a few days before the expiration of a patent will be 
 
 25 Barber v. Barber, 21 How. 582. 90b; 1 Co. Litt. 172 a; Bacon's Abridg- 
 Cf. Johnson v. Johnson, 13 Fed. R. 193; ment, Account A; Buller's Nisi Prius, 127; 
 Bowman v. Bowman, 30 Fed. R. 849. Earl of Devonshire's Case, 11 Coke, 89. 
 
 26 Metcalf v. Williams, 104 U. S. 93, 95. 3 « Root v. Railway Co., 105 U. S. 189 ; 
 2 " Johnson v. Waters, 111 U. S. 640. Consolidated Safety Valve Co. r. Ashton 
 
 28 Ager v. Murray, 105 U. S. 126. Valve Co., 26 Fed. R. 319 ; Lord v. 
 
 29 Matthews v. Green, 19 Fed. R. 649. Whitehead, &c. Mach. Co., 24 Fed. R. 801. 
 " (l Mr. Justice Field in Crampton v. 37 Gaines v. New Orleans, 17 Fed. B. 
 
 Zabriskie, 101 U. S. 601, 609. 16; s. c. 4 Woods, 213; John Crossley 
 
 si Erhardt v. Boaro, 113 U. S. 537. Sons v. New Orleans, 20 Fed. R. 352 ; 
 
 82 Pennsylvania R. R. Co. v. St. L., A., Baker v. Biddle, Bald. 394; Blakeley r. 
 
 & T. H. R. R. Co., 118 U. S. 290. Biscoe, Hemps. 114. But see Lord v. 
 
 33 P. R. R. of Mo. v. A. & P. R. R. Co., Whitehead, &c. Mach. Co., 24 Fed. R. 
 20 Fed. R. 277; Fowle v. Lawrason, 5 Pet. 801; Adams v. Bridgewater Iron Co., 26 
 494, 502 ; Littlefield v. Perry, 21 Wall. 205. Fed. R. 324, and cases cited. 
 
 34 Mitchell v. Manufacturing Co., 2 38 Rubber Co. v. Goodyear, 9 Wall. 
 Story, 648 ; Ivinson v. Hutton, 98 U. S. 788; Root v. Railway Co., 105 U. S. 189. 
 79 ; Fowle v. Lawrason, 5 Pet. 494, 502. 39 Root v. Railway Co., 105 U. S. 189; 
 
 35 Bispbam's Equity, § 481 ; 1 Co. Litt. Brooks v Miller, 28 Fed. R. 615, 617.
 
 § 12.] EQUITABLE JURISDICTION OF THE FEDERAL COURTS. 15 
 
 sustained, if it is possible to obtain equitable relief during the life 
 of the patent ; 40 unless under the practice of the court no injunc- 
 tion could possibly have been obtained before the expiration of 
 the patent ; 41 and also, perhaps, even when the bill has been filed 
 after the expiration of the patent, if the infringing articles were 
 made during its life. 42 A bill to take an account of general 
 average and decree contribution has been sustained. 43 It has 
 been held that the jurisdiction in equity to open a closed account 
 exists when equity would have had jurisdiction were the account 
 still open, notwithstanding a remedy at law exists. 44 " It is possi- 
 ble that one who holds land under grant from the United States, 
 who has done everything in his power to entitle him to a patent 
 (which he cannot compel the United States to issue to him), 
 and is deemed the legal owner, so far as to render the land tax- 
 able to him by the State in which it lies, may be considered as 
 having sufficient title to sustain a bill in equity to quiet his right 
 and possession." 45 " To give a court of equity jurisdiction, the 
 nature of the relief asked must be equitable, even when the suit 
 is based on an equitable title." 46 The inadequacy of the remedy 
 at law which will justify relief in equity, does not consist merely 
 in its failure to produce the relief sought, — that is a not unusual 
 result of all remedies, — but that in its nature or character it is 
 not fitted or adapted to the end in view. 47 
 
 § 12. Illustrations of Cases where the Federal Courts have refused 
 to assume Equitable Jurisdiction. — Equity will not entertain a 
 bill to restrain the President of the United States from carrying 
 into effect an unconstitutional act of Congress, in the discharge 
 of duties "purely executive and political." 1 Nor a bill filed by 
 
 40 Beedle r. Bennett, 122 TJ. S. 71; don. 1 Fed. R. 870; Crossley v. Derby 
 
 Clark v. Wooster, 119 U. S. 322, 324; Gaslight Co., 4 L. J. Ch. x. s. 25. 
 
 Westinghouse Air Brake Co. t\ Carpen- 43 Sturgess v. Cary, 2 Curt. 59. 
 
 ter, 32 Fed. It. 484, per Brewer, J. ; Kittle « Bischoffsheim v. Baltzer, 20 Fed. 
 
 v. De Graaf , 30 Fed. R. 689, per Coxe, J. ; R. 890. 
 
 Adams v. Bridge water Iron Co., 26 Fed. 45 Gray, J., in Frost v. Spitley, 121 
 
 R. 324 ; Brooks v. Miller, 28 Fed. R. 615, U. S. 552, 556; citing Carroll v. Safford, 
 
 617. 3 How. 441, 463 ; Van Wyck v. Knevals, 
 
 « Clark v. Wooster, 119 U. S. 322, 106 U. S. 360, 370 ; Van Brocklin v. Ten- 
 
 324 ; Westinghouse Air Brake Co. v. Car- nessee, 117 U. S. 151, 169. 
 
 penter, 32 Fed. R. 484. 4G Fussell v. Gregg, 113 U. S. 550, 554 ; 
 
 42 N. Y. Belting & Packing Co. v. Ma- per Woods, J. 
 
 gowan, 27 Fed. R. Ill ; citing Root v. 47 Miller, J., in Thompson v. Allen 
 
 Railway Co., 105 U. S. 189; American County, 115 U. S. 550, 554. 
 
 D. R. B. Co. v. Rutland Marble Co., 2 § 12. * Mississippi v. Johnson, 4 Wall. 
 
 Fed. R. 356 : Am. D. R. B. Co. v. Slid- 475.
 
 16 JURISDICTION. [CHAP. I. 
 
 a State to protect rights which are purely political, even though 
 its rights of property may be thereby incidentally affected. 2 Nor 
 a bill by a citizen of the United States to enforce an "abstract 
 right " which the complainant asserts, and which he may never 
 practically exercise ; as, for example, the right to remove an 
 obstruction from a navigable river, when he does not allege that 
 he is about to navigate the river. 3 Nor a bill filed by a coupon- 
 holder, who does not allege himself to be a taxpayer, to enjoin a 
 State officer from refusing to receive his coupons in payment of 
 taxes, as is required by a contract between the coupon-holder 
 and the State. 4 Nor a bill to compel municipal or State officers 
 to levy a tax, since the remedy when it exists at all is by man- 
 damus. 5 Nor a bill for the appointment of a receiver to levy 6 
 taxes, or to collect taxes previously levied. 7 Nor a bill to enjoin 
 the collection of an internal revenue tax illegally assessed. 8 Nor 
 a bill to restrain the collection of a State tax, no matter how 
 illegally imposed, 9 unless its enforcement would lead to a multi- 
 plicity of suits, 10 or produce irreparable injury, or throw a cloud 
 upon the title of real estate, or possibly when its assessment was 
 made by a fraud of which equity would take cognizance, or 
 when there is at law no means of recovering its amount. 11 Nor 
 solely for purposes that could be accomplished by an action in 
 ejectment. 12 Nor to quiet the title to real estate when the com- 
 plainant's rights are purely equitable, 13 or, in the absence of a 
 State statute authorizing such a suit, when he is not in posses- 
 sion of the land. 11 Nor, usually, to restrain the seizure or compel 
 the return of personal property 15 unless its loss by the owner 
 
 2 Georgia v. Stanton, 6 Wall. 50. 113 U. S. 516; Dundee Mortgage Trust 
 
 3 Spooner v. McConnell, 1 McLean, Investment Co. v. School District No. 1, 
 337. See Marye v. Parsons, 114 U. S. 19 Fed. R. 359. 
 
 325. n First National Bank v. Douglass 
 
 4 Marye v. Parsons, 114 U. S. 325. County, 3 Dill. 298 ; Union Pacific R. R. 
 & Walkley t>. Muscatine, 6 Wall. 431. Co. v. McShane, 3 Dill. 303, 312. 
 
 6 llees v, Watertown, 19 Wall. 107; 12 Hipp v. Babin, 19 How. 271; Lewis 
 Heine v. Levee Comm'rs, 19 Wall. 655 ; v. Cocks, 23 Wall. 466; Ellis v. Davis, 
 Meriwether v. Garrett, 102 U. S. 472. 109 U. S. 485 ; Killian v. Ebbinghaus, 110 
 
 7 Thompson v. Allen County, 115 U. S. 568 ; United States v. Wilson, 118 
 U. S. 550. U. S. 86 ; Speigle v. Meredith, 4 Biss. 
 
 8 U. S. R. S. § 3224 ; Snyder v. Marks, 120. 
 
 109 U. S. 189. 13 Frost v. Spitley, 121 U. S. 552. 
 
 9 Hanne winkle v. Georgetown, 15 u United States v. Wilson, 118 U. S. 
 Wall. 548 ; Dows v. Chicago, 11 Wall. 86 ; Frost v. Spitley, 121 U. S. 552. 
 
 108 ; State Railroad Tax Cases, 92 U. S. 15 Knox v. Smith, 4 How. 298 ; Van 
 575 ; Milwaukee v. Koeffler, 116 U. S. 219. Norden v. Morton, 99 U. S. 378. But see 
 10 Union Pacific Ry. Co. v. Cheyenne, Crane v. McCoy, 1 Bond, 422.
 
 § 12.] WHEN EQUITABLE JURISDICTION DOES NOT EXIST. 17 
 
 would result in irreparable injury by the destruction of bis busi- 
 ness and commercial credit, 16 or by rendering it impossible for 
 him to manage his farm, 17 or on account of its unique value ; 18 or 
 if it be held in trust. 19 That the value of the property is so 
 great that the complainant is unable to give the bond required in 
 an action of replevin, affords no ground for the interference of 
 equity. 20 Nor can a bill be sustained which seeks to recover 
 damages for a conversion ; 21 or for a fraudulent misrepresenta- 
 tion ; 22 or for a fraudulent conspiracy. 23 " In cases of fraud and 
 mistake, as under any other head of chancery jurisdiction, a court 
 of the United States will not sustain a bill in equity to obtain 
 only a decree for the payment of money by way of damages, 
 when the like amount can be recovered in an action sounding 
 in tort or for money had and received." 24 Nor to collect a note 
 from its maker 25 or an indorsee. 26 Nor to collect the amount of 
 an insurance policy. 27 Nor a bill filed by an insurance company 
 after a loss has occurred, to obtain the cancellation of a policy 
 procured by fraud. 28 Nor, except in a very extraordinary case, 
 a bill to enjoin slanders or libels. 29 Nor, it has been said, a 
 bill to enjoin criminal proceedings. 30 Nor a bill to enjoin the 
 removal of an officer of a State or municipality. 31 Nor a bill to 
 compel a public officer to perform a ministerial duty. 32 Nor a 
 bill by the assignee of a cause of action to enforce for his own 
 use the legal right of his assignor, when he seeks the aid of 
 equity merely upon the ground that he cannot maintain an 
 action at law in his own name. 33 Nor a bill by a private citizen 
 
 16 Watson v. Sutherland, 5 Wall. 74. 25 Dowell v. Mitchell, 105 U. S 430. 
 
 17 Breeden v. Lee, 2 Hughes, 484. 26 Shields v. Barrow, 17 How. 130. 
 
 18 Pusey v. Pusey, 1 Vern. 273 ; Duke 27 Graves v. Boston Marine Ins. Co., 2 
 of Somerset v. Cookson, 3 P. Wins. 389; Crancli, 410. 
 
 a. c. 1 Leading Cases in Equity, 821. 28 Home Ins. Co. v. St;inchfield, 1 Dill. 
 
 i» New Orleans v. Morris, 105 U. S. 424 ; Insurance Co. -v. Bailey, 13 Wall. 
 
 600. 016. 
 
 ao In re Oregon Iron Works, 4 Saw. 109, 29 Francis v. Flinn, 118 U. S. 385; 
 
 170; s. c. 17 N. B. R. 404. Baltimore Car Wheel Co. v. Bomis, 29 
 
 2 i Dumont v. Fry, 12 Fed. R>21. Fed. R. 95. Contra Emack v. Kane, 34 
 
 22 Russell v. Clark, 7 Cranch, 09 ; White Fed B. 46. 
 
 v. Boyce, 21 Fed. R. 228. 8° In re Sawyer, 124 U. S. 200; Sness 
 
 23 Ambler v. Choteau, 107 U. S. 586. v. Noble, 31 Fed. R. 855. 
 
 24 Buzard v. Houston, 119 U. S. 347, 31 In re Sawyer, 124 U. S. 200. 
 
 352, per Gray, J. ; citing Parkersburg v. 32 Craig v. Leitensdorfer, 123 U. S. 189. 
 
 Brown, 106 U. S. 487, 500; Ambler v. 33 Hayward v. Andrews, 106 U. S. 672; 
 
 Choteau, 107 U. S. 586; Litchfield v. New York Guaranty Co. v. Memphis 
 
 Ballou, 114 U. S. 190. Water Co., 107 U. S. 205.
 
 18 JUEISDICTION. [CHAP. I. 
 
 to set aside a land-patent of the United States, on account of 
 fraud upon the government used in its procurement, 34 although 
 if fraud were then practised upon the plaintiff he might have 
 relief upon the ground of estoppel. 35 Nor a bill filed by a credi- 
 tor for himself alone to apply equitable assets to the payment 
 of his debt, unless he has obtained a judgment for his claim in a 
 court of the same State or judicial district, and had the return 
 of an execution issued thereon unsatisfied, 36 — not even, it has 
 been held, when it is shown that the debtor is insolvent, and 
 has no property which can be reached by legal process, 37 — un- 
 less to enforce a trust or equitable right. 38 Nor, in the absence of 
 a State statute authorizing such a proceeding, a bill to set aside 
 the probate of a will on account of mistake, undue influence, 
 forgery, or other fraud. 39 Nor to enjoin an action at law to 
 which the complainant has a clear legal defence. 40 Nor to set 
 aside or enjoin proceedings to enforce a judgment at law because 
 of fraud ; unless the complainant had a defence to the action 
 upon the merits, 41 and either the fraud was extrinsic to the mat- 
 ter tried and not in issue in the former suit, nor then known to 
 the complainant, or some unconscientious advantage was taken 
 of the successful judgment debtor during the progress of the suit 
 without any fault or negligence upon his part. 42 It was held 
 by Chief Justice Chase, that an insolvent cannot maintain a bill 
 for the appointment of a receiver to distribute his assets among 
 his creditors. 43 It has been said that a receiver, assignee in 
 bankruptcy, or assignee under a voluntary general assignment, 
 each of whom represents creditors as well as the debtor, cannot 
 maintain a bill to enforce a collateral obligation given to a credi- 
 tor or to a body of creditors by a third person for the payment 
 of the debts of the insolvent. 44 A bill will be dismissed, which 
 
 34 Steel v. Smelting Co., 106 U. S. 447. *° Grand-Chute v. Winegar, 15 Wall. 
 
 35 Steel v. Smelting Co., 106 U. S. 447, 373; Francis v. Flinn, 118 U. S. 385; 
 454. Hapgood v. Hewitt, 119 U. S. 226. See 
 
 36 Case v. Beauregard, 99 U. S. 119; Drexel v. Berney, 122 U. S. 241. 
 Smith v. Railroad Co., 99 U. S. 398; 41 White v. Crow, 110 U. S. 183. 
 Walser v. Seligman, 13 Fed. R. 415. 42 Life Ins. Co. v. Bangs, 103 U. S. 
 
 37 Walser v. Seligman, 13 Fed. R. 415. 780, 782; Cragin v. Lovell, 109 U. S. 194. 
 But see Case v. Beauregard, 101 U. S. 43 Hugh v. McRae, Chase's Dec. 466. 
 688, at page 690. Contra, Brassey v. N. Y. & N. E. R. R. Co., 
 
 38 Case v. Beauregard, 101 U. S. 688, 19 Fed. R. 663 ; Wabash, St. L. & P. Ry. 
 at page 690. Co. v. Central Trust Co., 22 Fed. R. 272. 
 
 39 Broderick's Will, 21 Wall. 503 ; El- See Beach on Receivers, § 327. 
 
 lis v. Davis, 109 U. S. 485. 44 Jacobson v. Allen, 12 Fed. R. 454
 
 § 12.] WHEN EQUITABLE JURISDICTION DOES NOT EXIST. 19 
 
 seeks to enforce specific performance of a contract containing a 
 power of revocation by the defendant. 45 So was a bill to compel 
 the transfer of corporate stock, which the complainant obtained 
 for an inadequate consideration, and which he wished to use for 
 purely speculative purposes and to gain thereby an unconscien- 
 tious advantage. 46 In the absence of statutory authority, a private 
 individual cannot file a bill to obtain the forfeiture of a corporate 
 franchise. 47 Nor can a corporation be enjoined from acting be- 
 yond its legal powers at the suit of a business rival not one of 
 its stockholders. 48 Nor can a stockholder file a bill, founded 
 upon rights which may properly be asserted by his corporation, 
 against it and other parties, unless there exists "as the foundation 
 of the suit some action or threatened action of the managing 
 board of directors or trustees of the corporation which is beyond 1 
 the authority conferred on them by their charter or other source 
 of organization ; or such a fraudulent transaction completed or 
 contemplated by the acting managers, in connection with some 
 other party, or among themselves, or with other shareholders, as 
 will result in serious injury to the corporation, or to the interests 
 of the other shareholders ; or where the board of directors, or a 
 majority of them, are acting for their own interest, in a manner 
 destructive of the corporation itself, or of the rights of the other 
 shareholders ; or where the majority of shareholders themselves 
 are oppressively and illegally pursuing a course in the name of 
 the corporation which is in violation of the rights of the other 
 shareholders, and which can only be restrained by the aid of a 
 court of equity. Possibly other cases may arise in which, to 
 prevent irremediable injury or a total failure of justice, the court 
 would be justified in exercising its powers ; but the foregoing 
 may be regarded as an outline of the principles which govern 
 this class of cases. But in addition to the existence of griev- 
 ances which call for this kind of relief, it is equally important 
 that before the shareholder is permitted in his own name to 
 institute and conduct a litigation which usually belongs to the 
 corporation, he should show to the satisfaction of the court that 
 he has exhausted all the means within his reach to obtain, within 
 
 45 Express, Co. v. Railroad Co., 99 U.S. 47 Gaylord v. Fort Wayne, M. & C. 
 191. R. R. Co., 6 Biss. 28G. 
 
 46 M. & M. R. R. Co. v. Cromwell, 91 48 Railroad Co. v. Ellerman, 105 U. S. 
 U. S. 643. See Foil's Appeal, 91 Pa. St. 1GG. 
 
 434.
 
 20 JURISDICTION. [CHA.P. I. 
 
 the corporation itself, the redress of his grievances, or action in 
 conformity to his wishes. He must make an earnest, not a simu- 
 lated, effort with the managing body of the corporation to induce 
 remedial action on their part, and this must be made apparent 
 to the court. If time permits, or has permitted, he must show, 
 if he fails with the directors, that he has made an honest effort 
 to obtain action by the stockholders as a body, in the matter of 
 which he complains. And he must show a case, if this is not 
 done, where it could not be done or it was not reasonable to 
 require it." 49 Analogous rules regulate a suit by a stockholder 
 to set aside a contract by the corporation as beyond the powers 
 conferred in its charter. 50 It has been said that a court of equity 
 has no power to seize a man's property, and through its officers 
 complete a bridge in pursuance of a contract which he has 
 made. 51 Nor is it a sufficient ground for the interference of 
 a court of equity that the evidence in a cause is voluminous 
 and tedious. 52 
 
 § 13. Federal Courts which have Jurisdiction in Equity. — The 
 equitable jurisdiction of the Federal courts, from which category 
 the courts of the Territories and of the District of Columbia are 
 here excluded, 1 is in the Supreme Court, the Circuit Courts, the 
 District Courts, and the Court of Claims. 
 
 § 14. Original Equitable Jurisdiction of the Supreme Court. — 
 The Supreme Court has original jurisdiction both at law and 
 equity in all cases affecting ambassadors, other public ministers 
 and consuls, and those in which a State is a party. 1 The juris- 
 diction of the Supreme Court over controversies to which a State 
 is a party is exclusive, except as regards controversies between 
 a State and its citizens, or between a State and citizens of other 
 States. 2 In suits to which a State is a party the practice in 
 equity is followed. 3 The Supreme Court has exclusively all 
 such jurisdiction of suits against ambassadors or other public 
 
 < 9 Hawes v. Oakland, 104 U. S. 450, 51 Texas & St. Louis Ry. Co. v. Rust, 
 
 460, 461 ; per Miller, J. See also Hunt- 17 Fed. R. 275. 
 
 ington v. Palmer, 104 U. S. 482 ; Green- 62 Bowen v. Chase, 94 U. S. 812, 824. 
 
 wood v. Freight Co., 105 U. S. 13 ; De- § 13. » See Clinton v. Englebrecht, 13 
 
 troit v. Dean, 106 U. S. 537 ; Quincy v. Wall. 434. 
 
 Steel, 120 U. S.241 ; County of Tazewell § 14. * Const, art. iii. 
 
 v. Farmers' L. & Tr. Co., 12 Fed. R. 752. 2 tj. S . R. S. § 687. 
 
 60 Dimpfell v. Ohio & Mississippi R. R. 3 Georgia v. Brailsford, 2 Dall. 402, 
 
 Co., 110 TJ. S. 209 ; Tazewell v. Farmers' Kentucky v. Dennison, 24 How. 266. 
 Loan & Trust Co., 12 Fed. R. 752 ; Green- 
 wood v. Freight Co., 105 U. S. 13.
 
 § 15.] ORIGINAL JURISDICTION OF THE CIRCUIT COURTS. 21 
 
 ministers, or their domestics or domestic servants, as a court of 
 law can have consistently with the law of nations ; and original, 
 but not exclusive jurisdiction of all suits brought by ambassadors, 
 or other public ministers, or in which a consul is a party. 4 
 
 § 15. Original Jurisdiction of the Circuit Courts of the United 
 States. — The Circuit Courts of the United States have original 
 cognizance, concurrently with the courts of the several States, of 
 all suits of a civil nature, at common law or in equity, where 
 the matter in dispute exceeds, exclusive of interest and costs, the 
 sum or value of two thousand dollars, and arising under the 
 Constitution or laws of the United States, or treaties made 
 under their authority, or in which controversy the United States 
 are plaintiffs or petitioners ; suits in which there is a contro- 
 versy between citizens of different States, in which the matter in 
 dispute exceeds, exclusive of costs, the sum or value aforesaid ; 
 or a controversy between citizens of the same State, claiming 
 land under grants of different States, or a controversy between 
 citizens of a State and foreign States, citizens or subjects, in 
 which the matter in dispute exceeds, exclusive of interest and 
 costs, the sum or value aforesaid: 1 and, irrespective of the value 
 of the matter in dispute, of cases commenced by the United 
 States or by direction of any officer thereof against national 
 banks, or cases for winding up the affairs of any such bank: 2 and 
 all suits authorized by law to be brought by any person to 
 redress the deprivation, under color of any law, statute, ordi- 
 nance, regulation, custom, or usage of any State, of any right, 
 privilege, or immunity, secured by the Constitution of the United 
 States, or of any right secured by any law providing for equal 
 rights of citizens of the United States, or of all persons within 
 the jurisdiction of the United States, whether such suit was 
 originally brought in one of them or removed there according 
 to law from a State court: 3 of suits against the United States, to 
 collect claims of more than one thousand dollars, for money only, 
 founded upon the Constitution of the United States or any law 
 of Congress except for pensions, or upon any contract, expressed 
 or implied, with the government of the United States ; or for 
 
 4 U. S. R. S. § 687. v. Ettlesohn, 36 Fed. R. 209 ; Armstrong 
 
 § 15. > Act of March 3,1887, 24 St. v. Trautmann, 36 Fed. R. 275; McCon- 
 
 at L. ch. 373, p. 552. ville v. Gilmour, 30 Fed. R. 277. 
 
 2 Act of March 3, 1887, § 4 ; 24 St. 3 U. S. R. S. § 029; Act of March 3, 
 
 at L. ch. 373, p. 552. See Armstrong 1887, 24 St. at L. ch. 373, § 5.
 
 22 JURISDICTION. [CHAP. I. 
 
 damages, liquidated or unliquidated, in cases not sounding in 
 tort in respect of which claims the plaintiff would be entitled to 
 redress against the United States in a court of law, equit} T , or 
 admiralty, if the United States were suable, — except war claims, 
 and except other claims, which, before March 3, 1887, were 
 rejected or reported on adversely by any court, department, or 
 commission authorized to hear and determine the same : 4 and 
 of proceedings to condemn for national public uses land within 
 their respective districts. 5 Formerly Circuit Courts of the United 
 States had jurisdiction, without regard to the value of the matter 
 in dispute, of all suits at law or in equity arising under the patent 
 or copyright laws of the United States, or under any act pro- 
 viding for internal revenue or revenue from imports or tonnage, 
 or under the postal laws, or under any of the laws relating to 
 the slave trade ; of suits by the assignees of debentures for 
 drawback of duties ; of proceedings by the writ of quo warranto 
 prosecuted by a district attorney of the United States for the 
 removal from office of any person holding office contrary to the 
 Fourteenth Amendment to the Constitution, except a member 
 of Congress or of a State legislature ; and of suits to recover 
 possession of any office except that of elector of President or 
 Vice-President, representative or delegate in Congress, or mem- 
 ber of a State legislature, authorized by law to be brought, 
 wherein it appeared that the sole question touching the title to 
 such office arose out of the denial of the right to vote to any 
 citizen on account of race, color, or previous condition of servi- 
 tude. 6 Whether the Act of 1887 has deprived the Circuit Courts 
 of this jurisdiction is under the authorities a doubtful question. 
 It has been held at circuit that those courts still have jurisdic- 
 tion, irrespective of the value of the matter in dispute, of suits 
 at law or in equity arising under the patent and copyright laws ; 7 
 of suits at law or in equity arising under the revenue laws ; 8 and 
 of actions at common law b}^ the United States or an officer 
 thereof, including in this term a receiver of a national bank 
 appointed by the comptroller. 9 No Circuit Court of the United 
 
 4 24 St. at L. 505 ; United States v. 8 Ames v. Hager, 86 Fed. R. 129. 
 Jones, 131 U. S. 1. 9 Armstrong v. Ettlesohn, 86 Fed. R. 
 
 5 25 St. at L. ch. 728, p. 357. 209 ; Armstrong v. Trautmann, 36 Fed. 
 
 6 U. S. R. S. § 629. R. 275; McConville v. Gilmour, 36 Fed. 
 
 7 Miller-Magee Co. v. Carpenter, 34 R. 277. Contra, United States v. Huff- 
 Fed. R. 433. master, 35 Fed. R. 81.
 
 § 16.] MATTER IX DISPUTE. 23 
 
 States has cognizance of any suit, except upon foreign bills of 
 exchange, to recover the contents of any promissory note or 
 other chose in action, in favor of any assignee or of any subse- 
 quent holder, if such instrument be payable to bearer and be 
 not made by any corporation, unless such suit might have been 
 prosecuted in such court to recover the said contents if no 
 assignment or transfer had been made. 10 
 
 § 16. Matter in Dispute. — The value of the matter in dispute 
 must exceed exclusive of interest and costs the sum of two thou- 
 sand dollars. 1 This signifies not the amount of any contingent 
 loss or damage which one of the parties may sustain by a de- 
 cision against him, but the amount in dispute between the par- 
 ties in the pending suit. 2 Thus, the reason that, on account 
 of its probative force, the judgment may operate as an estoppel 
 in a subsequent proceeding, does not increase the value of the 
 matter in dispute. 3 Where the suit is upon a demand on which 
 the law liquidates the damages for a default, the amount of the 
 damages as liquidated by the law, not the amount named in the 
 plaintiff's pleading, is the value of the matter in dispute; 4 but 
 where the alleged cause of action is one in which the law does 
 not liquidate the damages, the amount for which the plaintiff 
 demands judgment is alone to be considered, 5 unless it clearly 
 appears that the amount named is merely colorable and beyond 
 the amount of a reasonable expectation of recovery. 6 Thus, in 
 an action of debt on a bond of one hundred dollars, the principal 
 and interest are put in demand, and no more can be recovered 
 except costs, though the plaintiff lay his damages at ten thousand 
 dollars. The value of the matter in dispute cannot, therefore, 
 exceed one hundred dollars with interest and costs." But in an 
 action for assault and battery, the law prescribes no limitation 
 to the amount which can be recovered ; and the amount claimed 
 by the plaintiff is the sole criterion to which resort can be had 
 
 i° Act of March 3, 1887, § 1, 24 St. at « Wilson v. Daniel, 3 Dall. 401, 407 ; 
 
 L. ch. 373, p. 552, as amended by act of Barry v. Edmunds, 116 U. S. 550, 5G0. 
 August 13, 1888, 25 St. at L. p. 433. 5 Smith v. Greenhow, 109 U. S. 669 ; 
 
 § 16. ! Act of March 3, 1887, § 1, 24 Wilson v. Daniel, 3 Dall. 401,407; Barry 
 
 St. at L. ch. 373, p. 552. v. Edmunds, 116 U. S. 550, 560. 
 
 2 Ross v. Prentiss, 3 How. 771, 772 ; 6 Lee v. Watson, 1 Wall. 337 ; Bow- 
 Elgin v. Marshall, 106 U. S. 579; Bruce man v. Chicago & N. W. Ry. Co., 115 
 v. M. & K. R. R. Co., 117 U. S. 514. U. S. 611, 616; Smith v. Greenhow, 109 
 
 8 Elgin v. Marshall, 106 U. S. 579 ; U. S. 669. 
 Bruce v. M. & K. R. R. Co., 117 U. S. 514. 7 Wilson v. Daniel, 3 Dall. 401, 407.
 
 24 JURISDICTION. [CHAP. I. 
 
 in settling the question of jurisdiction. 8 Where a defendant's 
 counterclaim has been dismissed and judgment rendered for the 
 plaintiff, the amount of the counterclaim added to the amount 
 recovered by the plaintiff is the matter in dispute. 9 The value 
 of property sued for is not always the matter in dispute. 10 Where 
 a complaint contains several counts, each for a separate sum 
 alleged to be due, and disputed by the defendant, the aggregate 
 of the sums constitutes the value of the matter in dispute. 11 The 
 value of the matter iu dispute in a suit for an accounting has 
 been said to be the amount of the disputed items of the account. 12 
 In a suit for an injunction the amount in dispute is the value 
 of the object to be gained by the bill, not merely the amount of 
 damages already suffered by the complainant. 13 Thus, in a suit 
 to enjoin the use of a trademark and compel an account of 
 profits, the value of the matter in dispute is the value of the 
 trademark, not the amount of profits which the 'defendant has 
 derived from its use. 14 In a suit to cancel a paper purporting to 
 be a marriage contract, the amount of the provision to which the 
 woman would be entitled to receive from her husband, were the 
 contract held binding, is the value of the matter in dispute. 15 
 Where a number of plaintiffs claiming under the same title 
 and having a common interest in the relief sought, unite in a 
 suit, action, or proceeding, their united interests constitute the 
 matter in dispute. 10 When, however, a suit is brought by 
 one for himself and all others of a class similarly situated, the 
 aggregate interest of all those who join with him, not that of 
 the whole class, constitutes the matter in dispute. 17 The in- 
 terest includes interest accrued on a demand before the suit 
 was brought. 18 An admission by the defendant in his pleading 
 
 8 Wilson v. Daniel, 3 Dall. 401, 407 ; 14 Symonds v. Greene, 28 Fed. R. 834. 
 Barry v. Edmunds, 116 U. S. 550, 560. 15 Sharon v. Terry, 36 Fed. R. 337. 
 
 9 Dushane v. Benedict, 120 U. S. 630. 16 Shields v. Thomas, 17 How. 3 ; 
 
 10 Gibson v. Shufeldt, 122 U.S. 27,29; Market Co. v. Hoffman, 101 U. S. 112; 
 per Gray, J. Davies v. Corbin, 112 U. S. 36 ; Estes v. 
 
 11 Armstrong v. Ettlesohn, 36 Fed. R. Gunter, 121 U. S. 183. See Gibson v. 
 209 ; Bernheim v. Birnbaum, 30 Fed. R. Shufeldt, 122 U. S. 27. 
 
 885, 887. 1T Bruce v. Manchester & K. R. R. 
 
 J-' McCormick v. Gray, 13 How. 26. Co., 117 U. S. 514, 516; Massa ». Cut- 
 
 13 Mississippi & Mo. R. R. Co. v. Ward, ting, 30 Fed. R. 1 ; Adams v. Board of 
 
 2 Black, 485; Market Co. v. Hoffman, County Comm'rs, McCahon (U. S. C. 
 
 101 U. S. 112; Symonds v. Greene, 28 C. D. Kan.), 235; Rich v. Bray, 37 
 
 Fed. R. 834 ; Whitman v. Hubbell, 30 Fed. R. 273. 
 
 Fed R 81. 18 Moore v. Edgefield, 32 Fed. R. 498.
 
 § 18.] SUITS UNDEE CONSTITUTION, ETC., OF THE UNITED STATES. 25 
 
 of part of the plaintiff's demand will not divest the court of 
 jurisdiction. 19 
 
 S 17. Suits arising under the Constitution or Laws of the United 
 States. — A suit arises under the Constitution or a law of the 
 United States whenever its correct decision depends on the con- 
 struction of either. 1 " When a proposition has once been decided 
 by the Supreme Court of the United States, it can no longer be 
 said that in it there still remains a Federal question. More cor- 
 rectly it is said that there is no question, State or Federal." 2 
 When either party is a corporation chartered by Congress, the 
 case is one arising out of a law of the United States. 3 Not, how- 
 ever, when the sole corporate party derived its charter from 
 a Territorial law. 4 Suits to which national banks are parties 
 are excepted from the operation of this rule, except cases com- 
 menced by the United States or by direction of any officer 
 thereof, or cases for winding up the affairs of any such bank. 5 
 It has been held that a case does not arise under the laws of the 
 United States, though brought to enjoin the infringement of a 
 patent, when the defendant admits the validity of the patent, 
 and rests his defence upon an alleged license from the plaintiff. 6 
 A suit on a judgment recovered in a court of the United States 
 is not necessarily a suit arising under the laws of the United 
 States. 7 A ease does not arise under the laws of the United 
 States simply because a Federal court has decided in another 
 suit the questions of law which are involved. 8 
 
 *» Fuller v. Met. Life Ins. Co., 37 Fed. Trautmann, 36 Fed. R. 275 ; McConville 
 
 K. 163. v. Gilmour, 36 Fed. R. 277. 
 
 § 17. ' Cohens v. Virginia, 6 Wheat. 6 Hartell v. Tilghman, 99 U. S. 547 ; 
 
 204,379; Tennessee v. Davis, 100 U.S. Wilson v. Sandford, 10 How. 99; Al- 
 
 257, 264 ; Starin v. New York, 115 U. S. bright v. Teas, 106 U. S. 613; Dale Tile 
 
 248, 257 ; Southern Pacific R. R. Co. v. Manuf. Co. v. Hyatt, 125 U. S. 46 ; Felix 
 
 California, 118 U. S. 109, 112. v. Scharnweber, 125 U. S. 54 ; McCarty 
 
 2 Brewer, J., in Kansas v. Bradley, 26 & Hall Trading Co. v. Glaenzer, 30 Fed. 
 
 Fed. R. 289, 290. See Starin v. New York, R. 387. But see Smith v. Standard Laun- 
 
 115 U. S. 248, 257 ; Southern Pacific R. dry Mach. Co., 19 Fed. R. 825 ; Continen- 
 
 R. Co. v. California, 118 U. S. 109, 112. tal Store Service Co. v. Clark, 100 N. Y. 
 
 s Osborn v. U. S. Bank, 9 Wheat. 738, 365 ; Hat Sweat Manuf. Co. v. Reinoehl, 
 
 823 ; Pacific Railroad Removal Cases, 102 N. Y. 167 ; Puetz v. Bransford, 32 
 
 115 U. S. 1; Farmers' L. & Tr. Co. i>. Fed. R. 318; St. Paul Plow Works v. 
 
 Denver, S. P., & P. R. R. Co., 1 Ry. & Starling, 127 U. S. 376 ; Seibert C. O. 
 
 Corp. L. J. 584. Cup Co. v. Manning, 32 Fed. R. 025. 
 
 * Adams Express Co. v. Denver & R. 7 Provident Savings Society v. Ford, 
 
 G. R. R. Co., 16 Fed. R. 712. 114 U. S. 635 ; Metcalf v. Watertown, 
 
 5 Act of March 3, 1887, § 4, 24 St. at 128 U. S. 586. 
 L. ch. 373, p. 552. See Armstrong v. 8 Leather Manufacturers' Bank v. 
 
 Ettlesohn, 36 Fed. R. 209 ; Armstrong v. Cooper, 120 U. S. 778, 781.
 
 26 JURISDICTION. [CHAP. I. 
 
 § 18. Controversy between Citizens of different States. — A 
 controversy between citizens of different States is one in which 
 every party upon one side is a citizen of a different State from 
 every party upon the other. 1 The citizenship of formal parties 
 with no real interest in the controversy, does not affect the juris- 
 diction. 2 In determining between whom the controversy exists, 
 the court is not bound by the title of the cause or the form of the 
 pleadings, but should examine the record, ascertain the matter in 
 dispute, and arrange the parties on opposite sides of the same 
 according to the facts, no matter what their technical place as 
 plaintiffs or defendants may be. 3 
 
 § 19. Citizenship. — If there are no other grounds of jurisdic- 
 tion, the Federal courts do not take cognizance of a controversy 
 between two aliens ; * or of one between a citizen of the district 
 of Columbia, 2 or a citizen of a Territory, and a citizen of a State. 3 
 A suit brought by a State against one of its own citizens or 
 against a citizen of another State cannot, independently of other 
 grounds, be maintained in a Federal court. 4 If one of the parties 
 sues or is sued as receiver, 5 or as an executor or administrator, 6 
 his own citizenship, not that of those whom he represents, is the 
 test in determining the jurisdiction. When an infant sues by 
 his next friend or special guardian, the citizenship of the infant 
 alone is to be considered. 7 A corporation is conclusively pre- 
 sumed to be composed of citizens of the State or nation which 
 chartered it, or from which it derives its powers. 8 A municipal 
 corporation is treated as a citizen of the State within which it is 
 situated. 9 The same principle has been applied at circuit to 
 an unincorporated association authorized by statute to sue and be 
 
 § 18. l Blake v. McKim, 103 U. S. 336. 3 New Orleans v. Winter, 1 Wheat. 91. 
 
 2 Removal Cases, 100 U. S. 457 ; Bar- 4 Alabama v. Wolffe, 18 Fed. R. 836. 
 ney v. Latham, 103 U. S. 205 ; Harter v. 5 Davies v. Lathrop, 12 Fed. R. 353 ; 
 Kernochan, 103 U. S. 562 ; Maryland v Farlow v. Lea, 2 C. L. R. 329. 
 Baldwin, 112 U. S. 490; Wormley 6 Bradford v. Williams, 3 How. 576; 
 v. Wormley, 8 Wheat. 421; Taylor v. Coal Co v. Blatchford, 11 Wall. 172; 
 Holmes, 14 Fed. R. 499. Browne v. Browne, 1 Wash. 429. 
 
 3 Removal Cases, 100 U. S. 457, 468 ; 7 Woolridge v. McKenna, 8 Fed. R. 
 Pacific R. R. v. Ketchum, 101 U. S. 289; 650. 
 
 Barney v. Latham, 103 U. S. 205 ; Carson 8 Louisville, C. & C. R. R. Co. v. Let- 
 
 v. Hyatt, 118 U. S. 279, 286. son, 2 How. 497 ; Marshall v. Baltimore 
 
 §19. 1 Mossman v. Higginson, 4 Dall. & O. R. R. Co., 16 How. 314; Muller v. 
 
 12; Rateau v. Bernard, 3 Blatchf. 244. Dows, 94 U. S. 446; Steamship Co. v 
 
 2 Hepburn v. Ellzey, 2 Cranch, 445 ; Tugman. 106 U. S. 118. 
 
 Wescott v. Fairfield, Pet. C. C. 45 ; Bar- 9 Cowles v. Mercer County, 7 Wall, 
 
 ney v. Baltimore, 1 Hughes, 118. 118.
 
 § 20.] ANCILLARY JURISDICTION. 27 
 
 sued under the name of one of its officers. 10 A corporation char- 
 tered by two or more States is treated for the purposes of juris- 
 diction as a citizen of that one of them within whose limits the 
 suit is brought. 11 A national bank is deemed a citizen of the 
 State in which it is located. 12 The filing of a declaration of his 
 intention to become a citizen of the United States does not ter- 
 minate a party's alienage, although he is permitted by the laws of 
 the State of his residence to vote and hold office. 13 Residence is 
 not conclusive evidence of citizenship. 11 An exercise of the right 
 of suffrage by a citizen of the United States is conclusive evi- 
 dence of his citizenship. 15 Less evidence may, however, be 
 sufficient to establish a change of citizenship. 16 The fact that 
 a plaintiff has changed his residence for the purpose of bringing 
 the suit in a Federal court does not divest the jurisdiction, if the 
 change has actually occurred. 17 A change of citizenship or a 
 change of parties after the jurisdiction has once attached will 
 not divest it. 18 
 
 § 20. Under Grants of Different States. — Where one party 
 claimed land under a grant of New Hampshire made when 
 Vermont was a part of that State, and the other, under a grant 
 from Vermont made after their separation, it was held that the 
 controversy arose between persons claiming land under grants of 
 different States. 1 Where a controversy is founded upon con- 
 flicting grants of different States, the Federal courts have juris- 
 
 i« Fargo v. L. N. A. & C. R. R. Co., 12 2 4 St. at L. ch. 373, § 4, p. 554. 
 
 6 Fed. R. 787 ; Whitman v. Hubbell, 30 13 Lanz v. Randall, 4 Dill. 425; Maloy 
 
 Fed. R. 81 ; Maltz v. American Express v. Duden, 25 Fed. R. 673. 
 
 Co., 3 Central L. J., 784; Liverpool Ins. " Shelton v. Tiffin, 6 How. 163, 185. 
 
 Co. v. Massachusetts, 10 Wall. 566. Con- 15 Rabaud v. D'Wolf, 1 Paine, 580; 
 
 tra, Dinsmore v. Phila. & R. Co., 3 Central State Savings Assoc, v. Howard, 31 Fed. 
 
 L. J. 157 ; and see Chapman v. Barney, R. 433 ; McDonald v. Salem C. F. Mills 
 
 129 U. S. 677. Co., 31 Fed. R. 577. 
 
 n O. & M. R. R. Co. v. Wheeler, 1 16 Shelton v. Tiffin, 6 How. 1G3, 185. 
 
 Black, 286 ; Railway Co. v. Whitton, 13 17 Briggs v. French, 2 Sumner, 251, 
 
 Wall. 270; Muller v. Dows, 94 U. S. 444. 255, 256; Catlett v. Pacific Ins. Co., 1 
 
 See Railroad Co. v. Harris, 12 Wall. 65 ; Paine, 594 ; Cooper v. Galbraith, 3 Wash. 
 
 Graham v. B. H. & E. R. R. Co., 118 C. C. 546, 553; Case v. Clarke, 5 Mason, 
 
 U. S. 161 ; Pa. R. R. Co. v. St. L. A. & 70 ; Robertson v. Carson, 19 Wall. 04, 
 
 T. II. R. R. Co., 118 U. S. 290 ; Moore 106. But see Morris v. Gilmer, 129 U. S. 
 
 v. C. St. P. M. & O. R. R. Co., 21 Fed. 315. 
 
 R. 817 ; C. St. P. M. & O. R. R. Co. v. 18 Ober v. Gallagher, 93 U. S. 199, 
 
 Dakota Co., 28 Fed. R. 219; N. & L. R. 206 ; Stewart v. Dunham, 115 U. S. 61, 
 
 R. Co. v. B. & L. R. R. Co., 19 Fed. R. 01 ; Phelps v. Oaks, 117 U. S. 236. 
 
 804 ; Page v. Fall River W. & P. R. Co., § 20. > Pawlet v. Clark, 9 Cranch, 292; 
 
 31 Fed. R. 257 ; Johnson v. P. W. & B. Colson v. Lewis, 2 Wheat. 377. 
 R. R. Co., 1 Am. L. J. 437.
 
 28 JURISDICTION. [CHAP. I. 
 
 diction irrespective of the equitable title of the parties before 
 either grant. 2 
 
 § 21. Ancillary Jurisdiction. — After a Federal court has ac- 
 quired jurisdiction through the existence of the necessary 
 difference of citizenship between the original parties, ancillary 
 proceedings may be therein instituted, although parties upon the 
 different sides of the controvers} 7 are citizens of the same State, 
 and there is no other ground of Federal jurisdiction. 1 " The 
 question is not whether the proceeding is supplemental and 
 ancillary, or is independent and original in the sense of the 
 rules of equity pleading, but whether it is supplemental and 
 ancillary, or is to be considered entirely new and original, in the 
 sense which this court has sanctioned with reference to the line 
 which divides the jurisdiction of the Federal courts from that of 
 the State courts." 2 Thus, not only can a bill of revivor or a 
 supplemental bill be maintained in a Federal court which had 
 jurisdiction of the original litigation, 3 but so can a bill to restrain, 
 or to regulate, 4 or to set aside, 5 or to obtain a judicial construc- 
 tion, 6 or to enforce a judgment or decree of a Federal court. 7 
 A bill for the reformation of a policy of insurance is ancillary 
 to an action upon such policy. 8 
 
 Conversely, there is a similar limitation upon the jurisdiction 
 of the Federal courts. This is well explained in the following 
 extract from an opinion by Bradley, J. : 9 " The question presented 
 with regard to the jurisdiction of the Circuit Court is, whether 
 the proceeding to procure nullity of the former judgment in such 
 a case as the present is or is not in its nature a separate suit, or 
 whether it is a supplementary proceeding, so connected with the 
 
 2 Colson v. Lewis, 2 Wheat. 377, 3 Clarke v. Mathewson, 12 Pet. 164. 
 
 379 4 Dunn v. Clarke, 8 Pet. 1 ; Freeman 
 
 §21. i Dunn r. Clarke, 8 Pet. 1 ; Clarke v. Howe, 24 How. 450, 460; Jones v. 
 v. Mathewson, 12 Pet. 164; Freeman v. Andrews, 10 Wall. 327; Krippendorf v. 
 Howe, 24 How. 450, 460; Minnesota Hyde, 110 U. S. 276; Johnson v. Chris- 
 Company v. St. Paul Company, 2 Wall, tian, 125 U. S. 642. 
 
 609 ; Jones v. Andrews, 10 Wall. 327 ; 5 Pacific R. R. of Mo. v. Mo. P. R. R., 
 
 Krippendorf v. Hyde, 110 U. S. 276 ; Pa- 111 U. S. 505, 522. 
 
 cific R. R. of Mo. v. Mo. P. R. R. Ill 6 Minnesota Company v. St. Paul 
 
 U. S. 505, 522 ; Dewey v. W. F. G. C. Co. Company, 2 Wall. 609. 
 123 U. S. 329; Gumbel ». Pitkin, 124 7 Railroad Companies v. Chamberlain, 
 
 U. S. 131 ; Seymour v. Phillips & C. Con- 6 Wall. 748. 
 
 struction Co., 7 Biss. 460. But see Christ- 8 Rosenbaum v. Council Bluffs Ins. 
 
 mas v. Russell, 14 Wall. 69. Co., 37 Fed. R. 724 ; Abraham v. North 
 
 2 Miller, J., in Minnesota Company v. German F. Ins. Co., 37 Fed. R. 731. 
 St. Paul Company, 2 Wall. 609, 633. 9 Barrow r. Hunton, 99 U. S. 80, 82.
 
 § 22.] LIMITATIONS UPON JURISDICTION BY RESIDENCE. 29 
 
 original suit as to form an incident to it, and substantially a con- 
 tinuation of it. If the proceeding is merely tantamount to the 
 common-law practice of moving to set aside a judgment for irreg- 
 ularity, or to a writ of error, or to a bill of review, or an appeal, 
 it would belong to the latter category, and the United States 
 court could not properly entertain jurisdiction of the case. 
 Otherwise the Circuit Courts of the United States would be- 
 come invested with power to control the proceedings in the State 
 courts, or would have appellate jurisdiction over them in all cases 
 where the parties are citizens of different States. Such a result 
 would be totally inadmissible. On the other hand, if the pro- 
 ceedings are tantamount to a bill in equity to set aside a decree 
 for fraud in the obtaining thereof, then they constitute an original 
 and independent proceeding, and according to the doctrine laid 
 down in Gaines v. Fuentes, 10 the case might be within the cogni- 
 zance of the Federal courts. The distinction between the two 
 classes of cases may be somewhat nice, but it may be affirmed to 
 exist. In the one class there would be a mere revision of errors 
 and irregularities, or of the legality and correctness of the judg- 
 ments and decrees of the State courts ; and in the other class, 
 the investigation of a new case arising upon new facts, although 
 having relation to the validity of an actual judgment or decree, 
 or the party's right to claim any benefit by reason thereof." 
 Proceedings supplementary to execution authorized by State 
 statutes against a judgment debtor or third persons cannot be 
 instituted in or removed to the Federal courts, although a credi- 
 tor's bill may be. 11 A petition, after judgment in a State court, 
 for plaintiff in ejectment to have the defendant's damages allowed 
 to him is a mere incident to the ejectment suit, and the Federal 
 courts can take no jurisdiction of it. 12 
 
 § 22. Limitations upon Jurisdiction by Residence. — The Ju- 
 diciary Act of 1887 limits the jurisdiction of the Circuit Courts 
 of the United States as follows : " But no person shall be 
 arrested in one district for trial in another in any civil action 
 before a Circuit or District Court; and no civil suit shall be 
 brought before either of said courts against any person by any 
 original process of proceeding in any other district than that 
 
 10 92 U. S. 10 ; Arrowsmith v. Gleason, Buford v. Strother, 3 McCrary, 253 ; s. c. 
 129 U. S. 86. 10 Fed. R. 400 ; Flash v. Dillon, 22 Fed. 
 
 11 Webber v. Humphreys, 5 Dill. 223 ; R. 1. 
 
 Poole v. Thatcherdeft, 19 Fed. R. 49 ; 12 Chapman v. Barger, 4 Dill. 557.
 
 30 JURISDICTION. [CHAP. I. 
 
 whereof he is an inhabitant; but where the jurisdiction is 
 founded only on the fact that the action is between citizens of 
 different States, suit shall be brought only in the district of the 
 residence of either the plaintiff or the defendant." 1 A decision 
 in the California circuit construed this act as depriving the Cir- 
 cuit Courts of all jurisdiction, whether originally or by removal, 
 over foreign corporations or other persons who are inhabitants of 
 other districts. 2 The other Circuit Courts, however, declined to 
 follow this decision; 3 and it was finally overruled by the judges 
 who made it. 4 The interpretation seems to be established that, 
 when the jurisdiction depends upon the existence of a Federal 
 question, or upon grounds other than the citizenship of the 
 parties, the defendant must be sued in the district of his resi- 
 dence; 5 but when the jurisdiction depends upon the citizenship 
 of the parties, the suit may be brought in the district in which 
 either the plaintiff or the defendant resides. 6 Whether a cor- 
 poration can have a residence beyond the territory of the govern- 
 ment from which it derives its charter is undecided." What is 
 the rule when parties on the same side of the case reside in 
 different districts has not been decided. The Revised Statutes 
 previously provided as follows : " When a State contains more 
 than one district, every suit not of a local nature, in the Circuit 
 
 § 22. i Act of March 3, 1887, § 1, 24 St. Fales v. Chicago, M. & St. P. Ry. Co., 
 
 at L. 552 ; as amended 25 St. at L. 434. 32 Fed. R. 673, E. 1). Iowa ; per Shiras, J. 
 
 2 County of Yuba v. Pioneer Gold Short v. Chicago, M. & St. P. Ry., 33 Fed 
 Mining Co , 32 Fed. R. 183 ; per Sawyer, R. 114, D. Minnesota; per Brewer, J. 
 Field & Sabin, JJ. See also Hardenberg Gavin v. Vance, 33 Fed. R. 84, W. D 
 t\ Ray, 33 Fed. R. 812, 814 ; per Deady, J. Tennessee ; per Hammond, J. ; W. U. Tel 
 
 3 St. Louis, V. & T. H. R. Co. v. Terre Co. v. Brown, 32 Fed R. 337, E. D. Mis 
 Haute & I. R. Co., 33 Fed. R. 385; Pit- souri; per Brewer, J. ; Loomis w. N. Y 
 kin County Min. Co. v. Markell, 33 Fed. & C. Gas Coal Co., 33 Fed. R. 353, N. D., 
 R. 386 ; Fales v. Chicago, M. & St. P. Ry. New York ; per Coxe, J., Wallace and 
 Co., 32 Fed. R. 673 ; Short v. Chi. M. & Lacombe, JJ., concurring. 
 
 St. P. Ry. Co., 33 Fed. R. 114 ; Gavin v. 7 Lacombe, J., in Filli v. D. L. & W. 
 
 Vance, 33 Fed. R. 84 ; W. U. Tel. Co. v. R. R. Co., 37 Fed. R. 65, S. D. New York, 
 
 Brown'. 32 Fed. R. 337. and Hohorst v. Hamburg Amer. Packet 
 
 * Wilson v. W. U. Tel. Co., 34 Fed. R. Co., 38 Fed. R. 273, S. D. New York, and 
 
 5g| Ross, J., in Denton v. International Co. of 
 
 5 St. Louis, V. & T. H. R. Co. ». Terre Mexico, 36 Fed. R. 1, S. D. California, held 
 
 Haute & I. R. Co., 33 Fed. R. 385, 386, that it cannot. Maxey, J., in Zambrino v. 
 
 S. D. Illinois ; per Gresham and Allen, JJ. Galveston, H. & S. A. Ry. Co., 38 Fed. R. 
 
 e Pitkin Min. Co. v. Markell, 33 Fed. 449, and McKennan and Acheson, JJ , in 
 
 R. 386, D. Colorado ; per Hallett, J. ; St. Riddle v. N. Y. L. E & W. R. Co. 39 Fed. 
 
 Louis, V. & T. H. R. Co. v. Terre Haute R. 290, W. D. Pa., held that it can. The 
 
 & I. R. Co., 33 Fed. R. 385, 386, S. D. same opinion is expressed by Judge Speer 
 
 Illinois ; per Gresham and Allen, JJ. ; in his Removal of Causes, p. 38.
 
 § 22.] LIMITATIONS UPON JUKISDICTIOX BY RESIDENCE. 31 
 
 or District Courts thereof, against a single defendant, inhabitant 
 of such State, must be brought in the district where he resides ; 
 but if there are two or more defendants, residing in different 
 districts of the State, it may be brought in either district, and a 
 duplicate writ may be issued against the defendants, directed to 
 the marshal of any other district in which any defendant resides. 
 The clerk issuing the duplicate writ shall indorse thereon that it 
 is a true copy of a writ sued out of the court of the proper dis- 
 trict ; and such original and duplicate writs, when executed and 
 returned into the office from which they issue, shall constitute 
 and be proceeded on as one suit; and upon any judgment or 
 decree rendered therein, execution may be issued, directed to 
 the marshal of any district in the same State." 8 " In suits of 
 a local nature, where the defendant resides in a different district, 
 in the same State, from that in which the suit is brought, the 
 plaintiff may have original and final process against him, directed 
 to the marshal of the district in which he resides." 9 " Any suit 
 of a local nature, at law or in equity, where the land or other 
 subject-matter of a fixed character lies partly in one district and 
 partly in another, within the same State, may be brought in the 
 circuit or district court of either district; and the court in which 
 it is brought shall have jurisdiction to hear and decide it, and to 
 cause mesne or final process to be issued and executed, as fully 
 as if the said subject-matter were wholly the district for which 
 such court is constituted." 10 Prior to the act of 1887 special 
 statutes regulated in this respect the Federal courts in the dis- 
 tricts of Alabama, Georgia, Indiana, Iowa, Kentucky, Michigan, 
 Missouri, Ohio, and Tennessee. 11 Recent statutes also regulate 
 the Federal courts in the northeastern division of the south- 
 ern district of Georgia, and the districts of Louisiana and of 
 Kentucky. 12 
 
 8 U. S. R. S., § 740. in said northeastern division of the south- 
 
 9 U. S. R. S., § 741. ern district of Georgia. Rut if there are 
 
 10 U. S. R. S., § 742. two or more defendants, some residing in 
 
 11 For note explaining the limitations the northeastern division and others re- 
 upon jurisdiction by residence in the siding in any other portion of said south- 
 States here referred to, see the end of ern district of Georgia, the action may 
 this chapter (p. 58). be brought in any of the divisions in 
 
 12 The act creating the northeastern which any one of the defendants resides, 
 division of the southern district of Georgia When the defendant is a non-resident of 
 provides that " all civil suits not of a local either division action may be brought in 
 nature must be brought in said northeast- that division where the defendant may 
 ern division, where the defendant resides be found. Cases removed from any of
 
 32 
 
 JURISDICTION. 
 
 [CHAP. I. 
 
 § 23. Special Limitation upon Jurisdiction of Circuit Court for 
 Southern District of New York. — The Revised Statutes provide 
 that " the original jurisdiction of the Circuit Court for the 
 Southern District of New York shall not be construed to extend 
 to causes of action arising within the Northern District of said 
 State." 1 This does not exclude from the jurisdiction of the 
 court causes of action that arise without the State. 2 It has 
 been held that this forbids the issue by that court of an injunction 
 to prevent the infringement of a patent when the sole previous 
 cases of infringement occurred in the northern district of New 
 York. 3 
 
 § 24. Suits by Assignees. — The statutes further limit the juris- 
 diction of the courts of the United States by providing that no 
 
 the courts of the State of Georgia to the 
 circuit courts of the United States shall 
 be removed to the circuit court in the 
 division in which said court is held." 25 
 St. at L. ch. 168. p. 071. 
 
 The act dividing the eastern district 
 of Louisiana into two divisions provides, 
 " that if there be more than one defend- 
 ant and they reside in different divisions 
 of the district, the plaintiff may sue in 
 either division, and send duplicate writ 
 or writs to the other defendants, and the 
 said writs, when executed and returned 
 into the court from which they issued, 
 shall constitute one suit and be proceeded 
 in accordingly" (25 St. at L. ch. 869, 
 § 3, p. 438) ; "that all causes triable in 
 either of the courts of said eastern dis- 
 trict shall be tried in the division to 
 which the process is returnable under the 
 provisions of this act, unless by consent 
 of all parties the cause be removed to 
 some other division of said district." 25 
 St. at L. ch. 869, §4, p. 438. "Causes 
 removed from any court of the State of 
 Louisiana in the circuit court of the 
 United States within said eastern district 
 shall be removed to the circuit court in 
 the division in which such State court 
 is held." 25 St. at L ch. 869, § 8, p. 
 438. 
 
 The act dividing the western district 
 of Louisiana into two divisions provides : 
 " That if there be more than one defend- 
 ant and they reside in different divisions 
 of the district, the plaintiff may sue in 
 
 either division, and send duplicate writ 
 or writs to the other defendants ; and 
 the said writs when executed and re- 
 turned into the court from which they 
 issued, shall constitute one suit and be 
 proceeded in accordingly." 25 St. at L. 
 ch. 789, § 2, p. 388. " That all causes 
 triable in either of the courts of said 
 western district, shall be tried in the di- 
 vision to which the process is returnable 
 under the provisions of this act, unless 
 by consent of all parties, the cause be 
 removed to some other division of said 
 district." 25 St. at L ch. 389, § 3, p. 388. 
 " That causes removed from any court 
 of the State of Louisiana into the circuit 
 court of the United States within said 
 western district, shall be removed to the 
 circuit court in the division in which 
 such State court is held." 25 St. at L. 
 ch. 789, § 7, p. 388. 
 
 The act creating the Owensborough 
 division of the district of Kentucky pro- 
 vides that " where one or more defendants 
 in any civil cause shall reside in said di- 
 vision, and one or more defendants to 
 such cause shall reside out of said division 
 but in said district, then the plaintiff may 
 institute his action either in the court 
 having jurisdiction over the latter or in 
 said division." 25 St. at L. ch. 792, § 2, 
 p. 390. 
 
 § 23. ! U. S. R. S. § 657. 
 
 2 Wheeler v. McCormick, 8 Blatchf. 
 268. 
 
 3 Black v. Thome, 10 Blatchf. 66.
 
 § 24] SUITS BY ASSIGNEES. 33 
 
 Circuit or District Court shall " have cognizance of any suit, 
 except upon foreign bills of exchange, to recover the contents 
 of any promissory note or other chose in action in favor of any 
 assignee, or of any subsequent holder, if such instrument be 
 payable to bearer and be not made by any corporation, unless 
 such suit might have been prosecuted in such court to recover 
 the said contents if no assignment or transfer had been made.*' 1 
 A check is a bill of exchange. 2 A draft drawn in one on another 
 of the United States is a foreign bill of exchange. 3 The phrase 
 " suit to recover the contents of a chose in action " includes suits 
 to recover debts, or any claims for damages for breach of contract 
 or for torts connected with contract. 4 The phrase also includes 
 suits to foreclose mortgages 5 and to enforce the specific per- 
 formance of contracts. 6 The phrase does not include a suit of 
 replevin 7 or ejectment, 8 or otherwise brought to recover prop- 
 erty taken by the defendant before the assignment of the title to 
 the plaintiff; nor a suit upon a judgment, though the suit in 
 which the judgment was recovered could not have been brought 
 in a Federal court. 9 It has been suggested that the restriction 
 applies only to contracts " which may be properly said to have 
 contents," not to " mere naked rights of action founded on some 
 wrongful act, — some neglect of duty to which the law attaches 
 damages," such as a failure to protest a note ; but to " rights of 
 action founded on contracts which contain within themselves 
 some promise or duty to be performed." 10 It has been held that 
 an indorsee, who is a citizen of the same State as the maker of the 
 note, may sue his immediate indorser in a Federal court, if that 
 indorser be a citizen of a different State ; n but that when in a 
 suit against a remote indorser the plaintiff derives his title through 
 a citizen of the same State as the defendant, there is no jurisdic- 
 tion, on account of the difference of citizenship between the latter 
 
 § 24. i Act of March 3, 1887, § 1 ; 24 * Sheldon v. Gill, 8 How. 441. 
 
 St. at L. 552. 6 Corbin v. County of Black Hawk, 105 
 
 2 Bull v. Bank of Kasson, 123 U. S. U.S. 659,665; Shoecraf t v. Bloxham, 124 
 105. U. S. 730. 
 
 3 Buckner v. Finley, 2 Pet. 586, 593. 1 Deshler v. Dodge, 16 How. 622. 631. 
 < Bushnell v Kennedy, 9 Wall. 387, * Smith v. Kcrnochen, 7 How. 198. 
 
 390, Sere v. Pitot, 6 Cranch, 332, 335, » Bean v. Smith, 2 Mason, 252, 269; 
 
 336, Sheldon v. Gili, 8 How. 441, 449, Ober v. Gallagher, 93 U. S. 199, 206. 
 
 450; Tredway v. Sanger, 107 U. S. 323, i° Barney v. Globe Bank, 5 Blatch. 107. 
 
 323; Mersman v. Werges, 112 U. S. 139, See, however, Bushnell v. Kennedy, 9 
 
 143; Corbin v. County of Black Hawk, Wall. 387, 391. 
 
 105 U. S. 659, 665, 666. " Young v. Bryan, 6 Wheat. 146. 
 
 3
 
 34 JURISDICTION. [CHAP. I. 
 
 and the plaintiff. 12 Assignees in insolvency 13 are included within 
 this restriction; but receivers 14 and executors and administra- 
 tors 15 are not. It has been held that the restriction does not 
 apply when the only reason why the assignor could not have sued 
 was that his claim was less in value than the jurisdictional 
 amount. 16 
 
 § 25. Jurisdiction of the District Courts of the United States. 
 — The jurisdiction of the District Courts of the United States in 
 civil causes extends to suits for penalties and forfeitures incurred 
 under any law of the United States ; suits at common law brought 
 by the United States or any officer thereof, authorized by law to 
 sue ; suits in equity to enforce the lien of the United States upon 
 any real estate for any internal revenue tax, or to subject to the 
 payment of any such tax any real estate owned by the delinquent, 
 or in which he has any right, title, or interest ; suits for the recov- 
 ery of any forfeiture or damages under Section 3490 of the Revised 
 Statutes ; causes of action arising under the postal laws of the 
 United States ; civil causes of admiralty and maritime jurisdiction, 
 and all seizures on land and water not within admiralty and mar- 
 itime jurisdiction ; prizes on land and water ; suits brought by 
 the assignees of debentures for drawback of duties to enforce such 
 debentures ; all suits under the civil rights laws ; suits to recover 
 possession of any office except that of presidential elector or a 
 legislative office, wherein the sole question touching the title to 
 such office arises out of the denial of the right of a citizen to vote 
 on account of race, color, or previous condition of servitude ; pro- 
 ceedings by quo warranto, prosecuted by a district attorney of 
 the United States, for the removal from office of a person dis- 
 qualified by the Fourteenth Amendment to the Constitution ; 
 suits by aliens for torts only in violation of the law of nations 
 or of a treaty of the United States ; suits against consuls or 
 vice-consuls ; and all matters and proceedings in bankruptcy ; l 
 suits against the United States to collect claims not exceeding 
 one thousand dollars for money only, founded upon the Constitu- 
 tion of the United States or of any law of Congress, except for 
 
 12 Turner v. Bank of North America, Chappedelaine v. Dechenaux, 4 Cranch, 
 
 4 Dall. 8 ; Mollan v. Torrance, 9 Wheat. 306; Childras v. Emory, 8 Wheat. 642. 
 537, 538. 16 Bernheira v. Birnbaum, 30 Fed. R. 
 
 " Sere v. Pitot, 6 Cranch, 332, 336. 885, 887. See also Hammond v. Cleave- 
 
 " Davies v. Lathrop, 12 Fed. R. 353. land, 23 Fed. R. 1. 
 
 15 Sere v. Pitot, 6 Cranch, 332, 336 ; § 25. » U. S. R. S. § 563.
 
 § 26.] TERRITORIAL JURISDICTION AND TERMS OF COURTS. 35 
 
 pensions, or upon any contract expressed or implied with the 
 government of the United States, or for damages, liquidated or 
 unliquidated, in cases not sounding in tort, in respect of which 
 claims the plaintiff would be entitled to redress against the 
 United States in a court of law, equity or admiralty, if the United 
 States were suable, except war claims which, before March 3, 
 1887, were rejected or reported on adversely by any court, de- 
 partment, or commission authorized to hear and determine the 
 same ; 2 and proceedings to condemn for national public purposes 
 land situated within their respective districts. 3 
 
 § 26. Territorial Jurisdiction and Terms of the Supreme, Circuit, 
 and District Courts of the United States. — The Supreme Court has 
 jurisdiction throughout the United States. It holds one term 
 annually at Washington, commencing on the second Monday of 
 October. 1 It may also hold adjourned and special terms. 2 In 
 case of a contagious or epidemic disease, a term may be held at 
 another place. 3 There is a Circuit Court in each judicial dis- 
 trict of the United States. 4 There is a District Court in each 
 judicial district of the United States. The judicial districts and 
 the terms of the Circuit and District Courts held therein are as 
 follows : — 
 
 In Alabama, three districts ; the southern, middle, and north- 
 ern. The southern district of Alabama includes the counties of 
 Mobile, Washington, Baldwin, Clarke, Marengo, Wilcox, Monroe, 
 and Coneculi. 5 The terms for this district of both the Circuit 
 and District Courts are held at the city of Mobile on the fourth 
 Monday of December, and the first Monday in June. 6 A Circuit 
 and a District Court for the middle district of Alabama, are 
 held at the city of Montgomery. This includes the counties 
 of Montgomery, Autauga, Coosa, Tallapoosa, Chambers, Ran- 
 dolph, Macon, Russell, Barbour, Pike, Henry, Dale, Coffee, 
 Covington, Lowndes, Dallas, Perry, and Butler. The terms 
 for this district of both Circuit and District Courts are held 
 at the city of Montgomery on the first Mondays of May and 
 
 2 24 St. at L. 505; United States v. 25 St. at L. ch. 113, p. 655; 25 St. at L. 
 
 Jones, 131 U. S. 1. ch. 180, p. 682. 
 
 8 25 St. at L. ch. 728, p. 357. 6 U. S. R. S. §§ 532, 608; Act of June 
 
 § 26. i U. S. R. S. § 684. 22, 1874, ch. 401, § 5; 18 St. at L. 195; 
 
 2 U. S. R. S. §§ 684-686. U. S. R. S. 1st Supp. pp. 87, 88 ; Act of 
 
 3 U. S. R. S. § 4799. May 2, 1884, ch. 38 ; 23 St. at L. 18. 
 
 4 U. S. R. S. § 608 ; 18 St. at L. 195; 6 Act of June 22, 1874, ch. 401, § 6, supra.
 
 36 JURISDICTION. [CHAP. 1. 
 
 November. 7 There is a Circuit and a District Court for the 
 northern district, which includes the remainder of the State. 
 This district is divided into two divisions. 
 
 The southern division contains the counties of Sumter, Greene, 
 Hale, Pickens, Tuscaloosa, Lamar, Fayette, Walker, Jefferson, 
 Blount, Bibb, Shelby, Saint Clair, Etowah, Calhoun, Cleburne, 
 Clay, Talladega, Cherokee, and De Kalb, in which the court is held 
 at Birmingham. 8 
 
 In this division of the northern district, terms of both Circuit 
 and District Courts are held at the city of Birmingham, on the 
 first Mondays of March and September. 9 The northern division 
 of the northern district includes the remaining counties in it, 
 and both the Circuit and District Courts are held in this division 
 at the city of Huntsville on the first Monday of April and the 
 second Monday of October. 10 
 
 In Arkansas, two districts, the eastern and western. The 
 western district of Arkansas includes the counties of Benton, 
 Washington, Crawford, Sebastian, Scott, Polk, Montgomery, 
 Yell, Logan, Franklin, Johnson, Madison, Newton, Carroll, Boone, 
 and Marion, and what is known as the " Indian Territory." 
 Terms of the Circuit and District Courts are held at Fort 
 Smith, on the first Mondays in February, May, August, and 
 November. 11 
 
 The eastern district includes the residue of the State ; n and is 
 divided into eastern and western divisions. The eastern consists 
 of the counties of Mississippi, Crittenden, Lee, Phillips, Clay, 
 Craighead, Poinsett, Greene, Cross, Saint Francis, and Monroe ; 
 and the western division of the remaining counties of the district. 13 
 A term of the Circuit and District Court for this district in the 
 eastern division is held at Helena on the second Mondays of 
 March and October, and in the western division a Circuit Court 
 is held at Little Rock, on the first Mondays of April and 
 
 7 U. S. R. S. §§ 532, 608 ; Act of June at L. 18) ; Act of June 22, 1874, ch. 572, 
 22, 1874, eh. 401, § 6, supra; Act of May 401, §§ 1, 6, supra. 
 
 2, 1884, ch. 38, supra. « U. S. R. S. §§ 608, 533, as amended 
 
 8 U. S. R. S. §§ 532, 608 ; 18 St. at L. by 18 St. at L. ch. 41, p. 230, U. S. R. S. 
 195, § 5 (Act of June 22, 1874, ch. 401 ; 1st Supp. 262 ; 24 St. at L. ch. 422, p. 83 ; 
 U. S. R. S. 1st Supp. pp. 87, 88) ; Act of 25 St. at L. ch. 113, p. 655. 
 
 May 2, 1884, ch. 38 (23 St. at L. 18). M Act of Jan. 31, 1877, ch. 41 (18 St. at 
 
 9 Act of May 2, 1884, ch. 38, § 2 (23 St. L. 230 ; U. S. R. S. 1st Supp. pp. 262, 263), 
 at L. 18). amending U. S. R S. §§ 681, 571 , 572. 
 
 i» Act of May 2, 1884, ch. 38, § 2 (23 St. 1 3 U. S. 11. S. § 533 , 24 St. at L. 406.
 
 § 26.] DISTRICTS OF COLORADO, CONNECTICUT, DELAWARE, ETC. 37 
 
 October. 14 By a recent statute, " The Texarkana division of 
 the eastern judicial district of Arkansas " is established, in which 
 terms of Circuit and District Courts of this district are to be 
 held at Texarkana on the first Mondays of January and July, 
 and which includes the counties of Columbia, Howard, Hemp- 
 stead, Lafayette, Little River, Miller, Nevada, Ouachita, Pike, 
 and Sevier. 15 
 
 In California, two districts, the northern and the southern. The 
 southern district of California contains the counties of San Diego, 
 San Bernardino, Los Angeles, Ventura, Santa Barbara, San Luis 
 Obispo, Fresno, Tulare, and Kern. The remainder of California 
 is comprised in the southern district. In the southern district, 
 terms of Circuit and of District Courts respectively are held at Los 
 Angeles on the second Monday of August, and the second Mon- 
 day of January. In the northern district, terms of both Circuit 
 and District Courts are held at San Francisco, on the first Monday 
 in February, the second Monday in July, and the fourth Monday 
 in November. 16 Prior to the division of the original district of 
 California, provision was made for holding special sessions of the 
 Circuit Court. 17 
 
 Colorado constitutes one judicial district. 18 Terms of Circuit 
 and District Courts for this district are held : at Denver, on the 
 first Tuesdays in May and November ; at Pueblo, on the first 
 Tuesday in April ; and at Del Norte on the first Tuesday in 
 August. 19 
 
 Connecticut constitutes one judicial district. 20 District Courts 
 are held at New Haven on the fourth Tuesday in February ; at 
 Hartford on the fourth Tuesday in May ; at New Haven on the 
 fourth Tuesday in August, 21 and at Hartford on the first Tuesday 
 of December. 22 A Circuit Court for this district is held at New 
 Haven on the fourth Tuesday in April, and at Hartford on the 
 third Tuesday in September. 23 
 
 1* Act of Feb. 17, 1887, ch. 139 (24 St. « U. S. R. S. § 664, and compare with 
 
 at L. 406) ; U. S. It. S. § 572, as amended it the act of Aug. 5, 1886, ch. 920. 
 
 bv act of Jan. 31, 1877, ch. 41 (19 St. at L. w Act of June 26, 1876, ch. 147 (19 St. 
 
 230 ; U. S. R. S. 1st Supp. 262, 263). at L. 61 ; U. S. R. S. 1st Supp. 215, 216). 
 
 15 Act of Feb. 28, 1887 (24 St. at L. » Act of Aug. 3, 1886, ch. 848 (24 St. 
 428). at L. 214). 
 
 16 Act of Aug. 5, 1886, ch. 928 (24 St. 20 U. S. R. S. § 531. 
 at L. 308-310), superseding in this respect 21 U. S. R. S. § 572. 
 
 U. S. R. S. §§ 531, 572, 658, act of June 22 Act of June 30, 1879, ch. 49 (21 St. 
 16, 1874, ch.*287, and act of Feb. 18, 1876, at L. 41 ; U. S. R. S. 1st Supp. 497). 
 ch. 6. ffl U. S. R. S. § 658.
 
 38 JURISDICTION. [CHAP. I. 
 
 Delaware constitutes one judicial district. 24 The District Court 
 is held at Wilmington on the second Tuesdays in January, April, 
 June, and September. 25 The Circuit Court is held at Wilmington 
 on the third Tuesdays in June and October. 26 
 
 In Florida, two districts, the northern and southern. The 
 southern district embraces the counties of Hernando, Hills- 
 borough, Polk, Manatee, and Monroe ; the remaining territory 
 constituting the northern district. 27 In the southern district, 
 Circuit and District Courts are held at Tampa, on the second 
 Monday in February. 28 A Circuit 29 and District 30 Court for this 
 district is also held at Key West on the first Mondays of May and 
 November. In the northern district, both the District and Circuit 
 Courts are held at Tallahassee on the first Monday in February ; 
 at Pensacola, on the first Monday in March ; and at Jacksonville, 
 on the first Monday in December. 31 
 
 In Georgia, two districts, the northern and southern. The 
 northern district of Georgia originally included the counties of 
 Troup, Meriwether, Pike, Butts, Jasper, Morgan, Green, Talia- 
 ferro, Wilkes, and Lincoln, as they existed Aug. 11, 1848, with all 
 the counties north of them. Pike, Butts, Jasper, Lincoln, Wilkes, 
 and Taliaferro have since been annexed to the southern district, 
 which is now divided into eastern, northeastern, and western 
 divisions. The western division consists of forty-three counties, 
 to wit: Bibb, Monroe, Jones, Twiggs, Houston, Crawford, Bald- 
 win, Wilkinson, Laurens, Pulaski, Dooly, Macon, Taylor, Upson, 
 Pike, Butts, Jasper, Putnam, Hancock, Warren, Dodge, Wilcox, 
 Telfair, Sumter, Schley, Marion, Talbot, Harris, Muscogee, Chat- 
 tahoochee, Stewart, Webster, Lee, Terrell, Randolph, Quitman, 
 Clay, Calhoun, Dougherty, Baker, Early, Miller, and Mitchell. 32 
 The eastern division consists of the remaining counties of the 
 district. 33 The counties of Warren, Glascock, McDuffie, Colum- 
 bia, Richmond, Burke, Jefferson, Johnson, Washington, Lin- 
 coln, Wilkes, and Taliaferro compose the northeastern division. 34 
 
 2* U. S. R. S. § 531. » TJ. S. R. S. § 658. 
 
 25 U. S. R. S. § 572. m TJ r S. R. S. § 572. 
 
 26 U. S. R S. § 658. 31 U. S. R. S. §§ 572, 658. 
 
 27 Act of Feb. 3, 1879, ch. 43 (20 St. at 32 21 St. at L. ch. 17, p. 62, U. S. R. S. 
 L. 280 ; U. S. R. S. 1st Supp. 407), super- 1st Supp. p. 507, superseding, iu this re- 
 seding U. S. R. S. § 534. speet, U. S. R. S. § 535. 
 
 28 Act of June 30, 1886, ch. 581 (24 St. 33 U. S. R. S. § 572 ; 25 St. at L. ch. 
 at L. 106), repealing part of the act of 205, p. 690. 
 
 Feb. 3, 1879, supra. u 25 St. at L. ch. 168, p. 671.
 
 § 26.] DISTRICTS OF ILLINOIS AND INDIANA. 39 
 
 In the northern district, terms of both courts are held at At- 
 lanta, on the second Monday in March, 35 and on the first Monday 
 in October. 36 In the southern district, terms of the District Court 
 are held at Savannah on the second Tuesdays in February, May, 
 August, and November, 37 and of the Circuit Court on the second 
 Monday of April and the Thursday after the first Monday in 
 November, 38 at Macon, of both courts on the first Mondays of 
 May and October ; 39 and at Augusta of both courts on the first 
 Monday of April and the third Monday of November. 40 
 
 In Illinois, two districts, the northern and southern. The 
 northern district of Illinois includes the counties of McDonough, 
 Henderson, Warren, Fulton, Knox, Peoria, Tazewell, Woodford, 
 Livingston, and Iroquois, with all the counties north of them. 
 The southern district of Illinois includes the remaining counties 
 of the State. 41 The northern district is divided into two divisions, 
 known as the northern and southern divisions of the northern 
 district of Illinois. The southern division includes the counties 
 of Peoria, Stark, Henry, Rock Island, Mercer, Henderson, War- 
 ren, Knox, McDonough, Fulton, Putnam, Marshall, Woodford, 
 Tazewell, Livingston, and Iroquois. The northern division 
 includes the remaining counties of the northern district. 42 
 
 Terms of both the Circuit and District Courts for the northern 
 division of the northern district of Illinois are held at Chicago 
 on the first Monday in July and the third Monday in December ; 43 
 and for the southern division of the northern district at Peoria 
 on the third Mondays of April and October. 44 Terms of both 
 courts in the southern district of Illinois are held at Spring- 
 field on the first Mondays in January and June, 45 and, of the 
 District Court alone, at Cairo on the first Mondays of March 
 and October. 46 
 
 Indiana constitutes one judicial district 47 Terms of both 
 Circuit and District Courts are held : at Indianapolis, on the 
 first Tuesdays in May and November; at New Albany, on 
 
 85 U. S. R. S. § 658. « U. S. R. S. § 536, as amended by act of 
 
 36 Act of June 20, 1884, ch. 106 (23 St. March 2, 1887, ch. 315 (24 St. at L. 442). 
 
 at L. 50), amending §§ 572, 658 of the *" Act of March 2, 1887, supra. 
 
 Rev. Sts. 4S U. S. R. S. §§ 572, 658. 
 
 * U. S. R. S. § 572. « Act of March 2, 1887, ch. 315, § 3, 
 
 88 U. S. It. S. § 658. supra. 
 
 89 21 St. at L. ch. 17, p. 82, U. S. R. S. * 5 U. S. R S. §§ 572, 658. 
 1st Supp. 507. *> U. S. R. S. § 572. 
 
 40 25 St. at L. ch. 168, p. 671. 4; U. S. R. S. § 531.
 
 40 JURISDICTION. [CHAP. I. 
 
 the first Mondays in January and July ; 48 at Evansville, on the 
 first Mondays of April and October ; 49 at Fort Wayne, on 
 the second Tuesdaj's in June and December, in each year ; ^ and 
 also twice a year at Fort Wapne, at such time as the judges of said 
 courts may designate. 51 
 
 In Iowa, two districts, the northern and southern. The coun- 
 ties of Clinton, Jones, Linn, Benton, Black Hawk, Grundy, 
 Harding, Hamilton, Webster, Calhoun, Sac, Ida, Monona, and 
 all the counties north of them, constitute the northern district 
 of Iowa. The remaining counties of the State constitute the 
 southern district. 52 For the purposes of holding terms of court, 
 the Northern District of Iowa is divided into three divisions, — 
 known as the " Eastern," " Central," and " Western " divisions 
 of the northern district of Iowa. The Eastern Division includes 
 the counties of Clinton, Jackson, Jones, Linn, Benton, Black 
 Hawk, Buchanan, Delaware, Dubuque, Clayton, Fayette, Bre- 
 mer, Floyd, Chickasaw, Mitchell, Howard, Winneshiek, and 
 Allamakee. 53 In this division, both Circuit and District Courts 
 are held, at Dubuque, on the first Tuesday in April and the 
 fourth Tuesday in November of each year. 54 The Central Division 
 includes the counties of Grundy, Hardin, Hamilton, Webster, 
 Calhoun, Pocahontas, Palo Alto, Emmett, Kossuth, Humboldt, 
 Wright, Hancock, Winnebago, Worth, Cerro Gordo, Franklin, 
 and Butler. 53 Terms of both Circuit and District Courts in this 
 division are held at Fort Dodge 55 on the second Tuesday of 
 November and first Tuesday of June. 54 The Western Division in- 
 cludes the counties of Monona, Woodbury, Plymouth, Sioux, 
 Lyon, Osceola, O'Brien, Cherokee, Ida, Sac, Buena Vista, Clay, 
 and Dickinson. 52 Terms of both Circuit and District Courts in 
 this division are held at Sioux City, on the first Tuesdays of May 
 and October; at Fort Dodge on the second Tuesday of November 
 and the first Tuesday of June ; and at Dubuque on the fourth 
 Tuesday of November and first Tuesday of April. 54 
 
 48 U. S. R. S. §§ 572, 658. at L. 172), superseding, in this respect, 
 
 49 Act of June 23, 1874, ch. 463 (18 U. S. R. S. § 531; Act of June 4, 1880, 
 St. at L. 251; U. S. R. S. 1st Supp. ch. 120 (21 St. at L. 155; U. S. R. S. 1st 
 103). Supp. 536). 
 
 so Act of March 3, 1881 (21 St. at L. 53 Act of July 20, 1882, ch. 312, § 5. 
 571 ; U. S. R. S. 1st Supp. 615. 54 25 S. at L. 87. 
 
 51 Act of June 18, 1878, ch. 269 (20 St. 65 Act of July 20, 1882, ch. 312 (22 St. 
 
 atL. 166 ; U. S. R. S. 1st Supp. 367). at L. 172.) 
 
 62 Act of July 20, 1882, ch. 312 (22 St.
 
 § 26.] DISTRICTS OF IOWA, KANSAS, AND KENTUCKY. 41 
 
 For the purposes of holding terms of court the Southern 
 District of Iowa is divided into three divisions, known as the 
 eastern, central, and western divisions. 
 
 The Eastern Division includes the counties of Scott, Cedar, 
 Muscatine, Washington, Louisa, Keokuk, Appanoose, Davis, 
 Wapello, Jefferson, Van Buren, Henry, Des Moines, and Lee. 56 
 Terms of both Circuit and District courts in this division are 
 held, at Keokuk, on the third Tuesdays of January and June. 57 
 The Central Division includes the counties of Johnson, Iowa, 
 Poweshiek, Mahaska, Jasper, Tama, Marshall, Story, Boone, 
 Greene, Guthrie, Adair, Dallas, Polk, Madison, Warren, Marion, 
 Clark, Lucas, Decatur, Monroe, and Wayne. 56 Terms of both Cir- 
 cuit and District Courts in this division are held at Des Moines, 56 on 
 the second Tuesday in May and the third Tuesday in October. 58 
 The Western Division includes the counties of Carroll, Crawford, 
 Harrison, Shelby, Audubon, Cass, Pottawattamie, Mills, Mont- 
 gomery, Adams, Union, Ringgold, Taylor, Page, and Fremont. 56 
 Terms of both Circuit and District courts in this division are 
 held, at Council Bluffs, 56 on the fourth Mondays of March and 
 September. 57 
 
 Kansas constitutes one judicial district. 59 The terms of the 
 District Court for Kansas are held as follows : At Topeka, on 
 the second Monday in April ; at Salina, on the second Monday of 
 May ; at Leavenworth, on the second Monday of October ; at 
 Fort Scott, on the second Monday of January. 60 At Salina no 
 case can be tried except by consent or special order. 61 The 
 terms of the Circuit Court for the district of Kansas are held as 
 follows: At Topeka, on the fourth Monday of November; at 
 Leavenworth, on the first Monday in June; 62 at Fort Scott, on 
 the second Monday of January. 63 
 
 Kentucky constitutes one district. 64 This is divided into two 
 divisions. The Owensborough division consists of the counties 
 of Daviess, Henderson, Union, Christian, Todd, Hopkins, Webster, 
 McLean, Muhlenberg, Logan, Butler, Grayson, Ohio, Hancock, 
 
 66 See references in note 52. ™ TJ. S. R. S. § 572; 25 St. atL. ch. 817, 
 
 * 7 U. S. R. S. § 572 ; 18 St. at L. 15 § 1, p. 392 ; 20 St. at L. ch. 177, p. 355, (U. 
 
 (U. S. R. S. 1st Supp. 4) ; 21 St. at L. S. R. S. 1st Supp. 452). 
 
 155 (U. S., R. S. 1st Supp. 536). ei 2 5 St. at L. ch 817, § 1 p. 392. 
 
 68 U. S. R. S. § 572, made applicable to 62 u. S. R. S. § 658. 
 
 Circuit Courts of this district by act of G3 Act of March 3, 1879, ch. 177, § 1 
 June 4, 1880, ch. 120, supra. (20 St. at L. 355). 
 
 69 U. S. R. S. § 531. 64 TJ. s. R. S. § 531.
 
 42 JURISDICTION. [CHAP. I. 
 
 and Breckenridjje. 65 The rest of the State constitutes the other 
 division. 65 The regular terms of the Circuit and District Courts 
 in this district are held : at Covington, on the second Monday in 
 May and the first Monday in December ; at Louisville, on the 
 third Monday in February and the first Monday in October ; at 
 Frankfort, on the first Monday in January and second Monday 
 in June ; at Paducah, on the first Monday in April and third 
 Monday in November, in each year ; 66 and for the Owensborough 
 division at the city of Owensborough on the fourth Monday of 
 Januarjr and the first Monday of June, for not more than eigh- 
 teen judicial days in each such term. 67 
 
 In Louisiana two judicial districts, the eastern and the western. 68 
 The western district includes the parishes of Caddo, Bossier, 
 Webster, Claiborne, Union, Morehouse, West Carroll, East Car- 
 roll, Madison, Richland, Ouachita, Lincoln, Bienville, Red River, 
 De Soto, Sabine, Winn, Natchitoches, Jackson, Caldwell, Frank- 
 lin, Tensas, Concordia, Catahoula, Grant, Vernon, Rapides, 
 Avoyelles, Saint Landry, La Fayette, Saint Martin, Vermillion, 
 Cameron, and Calcasieu. The remaining parishes form the 
 eastern district. 68 The western district is divided into three 
 divisions. 69 All process from the Circuit and District Courts of 
 the western district of Louisiana against defendants residing 
 in the parishes of Saint Landry, Saint Martin, Cameron, Calca- 
 sieu, La Fayette, and Vermillion, are returnable to Opelousas. 70 
 All process from said courts against defendants residing in the 
 parishes of Rapides, Vernon, Avoyelles, Catahoula, Grant, and 
 Winn, are returnable to Alexandria. 71 All process from said 
 courts against defendants residing in the parishes of Caddo, De 
 Soto, Bossier, Webster, Claiborne, Bienville, Natchitoches, Red 
 River, and Sabine, are returnable at Shreveport. 72 All process 
 from said courts against defendants residing in the parishes of 
 Ouachita, Franklin, Richland, Morehouse, East Carroll, West 
 Carroll, Madison, Tensas, Concordia, Union, Caldwell, Jackson, 
 and Lincoln are returnable at Monroe. 72 The eastern district is 
 divided into two divisions. 73 All process from the Circuit and 
 
 05 25 St. at L. ch. 702, p. 389. 6 *> 25 St. at L. ch. 789, § 1, p. 388. 
 
 6« U. S. R. S. §§ 572, 658 ; Act of July 70 25 St. at L. ch. 789, § 1, p. 388. 
 
 1, 1879, ch. 59, § 1 (21 St. at L. 45 ; U. S. 71 25 St. at L. ch. 789, § 1, p. 388. 
 
 R. S. 1st Supp. 499). 72 25 St. at L. ch. 789, § 1, p. 388. 
 
 6' 25 St. at L. ch. 792, p 388. V3 25 St. at L. ch. 869, p. 438. 
 
 68 21 St. at L. 507 (U. S. R. S. 1st 
 Supp. 611.
 
 § 2G.] DISTRICTS OF LOUISIANA, MAINE, MARYLAND, ETC. 43 
 
 District Courts for the eastern district of Louisiana against de- 
 fendants residing in the parishes of Pointe Coup, West Baton 
 Rouge, Iberville, Ascension, East Feliciana, West Feliciana, East 
 Baton Rouge, Saint Helena, and Livingston are returnable to such 
 courts at Baton Rouge. 74 All process against defendants residing 
 in the other parishes of the eastern district are returnable at 
 New Orleans. 75 In the western district, the terms of the Circuit 
 and District Courts are held : At Opelousas, on the first Mon- 
 days of January and June ; at Alexandria, on the fourth Mondays 
 of January and June ; at Shreveport, on the third Mondays of 
 February and July ; and at Monroe, on the first Mondays of 
 April and October in each year. 76 Terms of the District Courts 
 for the eastern district are held at New Orleans, on the third 
 Mondays in February, May, and November. 77 Terms of the Cir- 
 cuit Courts for the same district are held at New Orleans, on the 
 fourth Monday in April and the first Monday in November. 78 
 Terms of both courts are held at Baton Rouge on the second 
 Mondays of April and November. 79 
 
 Maine constitutes one judicial district. 80 The terms of the 
 District Court are held at Portland, on the first Tuesdays of 
 February and December ; 81 at Bangor, on the first Tuesday of 
 June ; 82 at Bath, on the first Tuesday of September. 83 The terms 
 of the Circuit Court are held at Portland, on the twenty-third 
 days of April and September. 84 
 
 Maryland forms one judicial district, 85 the District Courts of 
 which are held at Baltimore on the first Tuesdays in March, 
 June, September, and December. 86 The terms of the Circuit 
 Courts for the same district are held at Baltimore on the first 
 Mondays in April and November. 87 
 
 Massachusetts forms one judicial district. 88 The terms of the 
 District Courts are held at Boston on the third Tuesday in 
 March, on the fourth Tuesday in June, on the second Tuesday 
 
 74 25 St. at L. ch. 869, p. 438. so TJ. S. R. S. § 531. 
 
 76 25 St. at L. ch. 869, p. 438. »i tj. S. R. S. § 572. 
 
 76 Act of March 3, 1881, ch. 144, § 5 82 Act of Jan. 18, 1884, ch. 1 (23 St. at 
 (21 St. at L. 507 ; U. S. R. S. 1st Supp. L. 1). 
 
 611). 83 tj. S. R. S. § 572. 
 
 77 U. S. R. S. § 572 ; Act of March 3, 8 4 TJ. S. R. S. § 658. 
 1881, ch. 141, § 6, supra. 86 jj. S. R. S. § 531. 
 
 ™ U. S. R. S. § 658 ; Act of March 3, so U. S. R. S. § 572. 
 
 1881, supra. 87 TJ. S. R. S. § 658. 
 
 79 25 St. at L. ch. 869, p. 438. 88 tj. S. R. S. § 531.
 
 44 JURISDICTION. [CHAP. L 
 
 in September, and on the first Tuesday in December. 89 The 
 terms of the United States Circuit Courts for this district are 
 held at Boston, on the fifteenth days of May and October. 90 
 
 In Michigan, two districts, the eastern and western ; and the 
 latter has a northern and a southern division. The northern div- 
 ision of the western district includes all the territory and waters 
 of the upper peninsula of the State. 91 The southern division of 
 this district comprises all that portion of the southern or lower 
 peninsula lying west of a line described as follows by the Re- 
 vised Statutes : — 
 
 " Commencing at the southwest corner of Branch county, in 
 said State, and running thence north on the west line of Branch 
 and Calhoun counties, to the south line of Barry county ; thence 
 east on the north line of Calhoun and Jackson counties, to the 
 southeast corner of Eaton county ; thence north on the east 
 boundary of Eaton county to the south line of Clinton county ; 
 thence west on the south line of said county to the southwest 
 corner thereof ; thence north on the west boundary of Clinton 
 and Gratiot counties, to the south boundary of Isabella county ; 
 thence west, on its south boundary, to the southwest corner of 
 said last named county ; thence north on the west line of Isa- 
 bella and Clare counties, to the south boundary of Missaukee 
 county ; thence east, on its south boundary, to the southeast 
 corner of Missaukee county ; thence north, on the east line of 
 Missaukee, Kalcaska, and Antrim counties, to the south boun- 
 dary of Emmett county ; thence east to the southeast corner of 
 Emmett county ; thence north on the east boundary of Emmett 
 county, to the Straits of Mackinac ; thence north to midway 
 across said straits ; thence westerly in a direct line to a point 
 on the shore of Lake Michigan where the north boundary of 
 Delta county reaches Lake Michigan." 92 The eastern division 
 includes the remaining portion of the territory and waters of the 
 southern peninsula. 92 Terms of both Circuit and District Courts 
 in the southern division of the western district are held at Grand 
 Rapids on the first Tuesdays of March and October ; and in the 
 northern division, at Marquette, on the first Tuesdays of May and 
 September. 93 In the eastern district, terms of both courts are held 
 
 83 U. S. R. S. § 572. 92 U. S. R. S. § 538 ; and see Act of 
 
 90 TJ. S. R. S. § 658. June 19, 1878, supra. 
 
 9i Act of June 19, 1878, ch. 326 (20 St. 93 Act of June 19, 1878, ch. 326, supra, 
 
 at L. 175; U. S. R. S. 1st Supp. 375). § 2.
 
 § 26.] DISTRICTS OF MINNESOTA AND MISSISSIPPI. 45 
 
 at Bay City at such times as the courts shall appoint ; 94 and at 
 Detroit, on the first Tuesdays of March, June, and November. 95 
 
 Minnesota forms one judicial district. 96 The terms of the Dis- 
 trict Court are held at Winona, on the first Monday in June, and 
 at Saint Paul, on the first Monday in October. 97 The terms of the 
 Circuit Courts are held at Saint Paul on the third Monday in 
 June, and on the second Monday in December. 98 
 
 In Mississippi, two districts, the northern, and southern. The 
 northern district is subdivided into eastern and western divi- 
 sions. The eastern division of the northern district includes 
 the counties of Tishami'ngo, Alcorn, Prentiss, Itawamba, Lee, 
 Pontotoc, Monroe, Chickasaw, Clay, Oktibbeha, Lowndes, Nox- 
 ubee, Winston, Choctaw, Attala, Neshoha, and Kemper, as they 
 existed June 15, 1882. The western division of the northern 
 district comprises the counties of Carroll, Bolivar, Coahoma, 
 Tunica, De Soto, Tate, Marshall, Panola, Benton, Tippah, Sun- 
 flower, Montgomery, Grenada, Tallahatchee, La Fayette, Union, 
 Webster, Calhoun, Quitman, and Yalabusha, as they existed in 
 June, 1882. 99 
 
 Terms of both Circuit and District Courts, in the eastern divi- 
 sion of the northern district, are held at Aberdeen, on the first 
 Mondays of April and October, to continue twenty-four judicial 
 days if the business so long require. The terms of both courts 
 for the western division are held at Oxford, on the first Mondays 
 of June and December, to continue as long as the business may 
 require. 100 
 
 In the northern district the judge is authorized to appoint and 
 hold additional special terms. 101 
 
 The southern district of Mississippi is divided into three divi- 
 sions. The western division consists of the counties of Wash- 
 ington, Sharkey, Inaquena, and Motte. 102 The southern division 
 consists of the counties of Hancock, Harrison, Jackson, Marion, 
 Perry, and Green. 103 The remainder of the southern district 
 
 94 Act of Feb. 28, 1887, ch. 269 (24 St. »W Act of June 15, 1882, ch. 218 (22 St. 
 at L. 423). at L. 101) ; Act of July 8, 1880 (24 St. at 
 
 95 U. S. R. S. §§ 572, 658. L. 127). 
 
 »8 U. S. R. S. § 531. ioi Act of June 15, 1882, ch. 218 (22 St. 
 
 97 U S. R. S. § 572. at L. 103). 
 
 98 U. S. R. S. § 658. W2 24 St. at L. ch. 279, p. 430. 
 
 99 Act of June 15, 1882, ch. 218 (22 St. i<> 8 25 St. at L. ch. 68, p. 78. 
 at L. 101) ; Act of July 8, 1886, ch. 745 
 
 (24 St. at L. 127).
 
 46 JURISDICTION. [CHAP. I. 
 
 constitutes the other division. 104 The terms of the Circuit and 
 District Courts for the western division are held at Vicksburg 
 on the first Mondays of January and July in each year ; for the 
 southern division, at Mississippi City, on the third Mondays of 
 February and August ; for the other division of the southern 
 district the terms of the Circuit Court are held at Jackson, on 
 the first Mondays of May and November. 105 The terms of the 
 District Court for the same are held at Jackson, on the fourth 
 Mondays of January and June in each year. 105 
 
 In Missouri, two districts, the eastern and western. The east- 
 ern districts of Missouri embraces the following counties : Saint 
 Louis, Franklin, Gasconade, Jefferson, Crawford, Washington, 
 Saint Francois, Saint Genevieve, Dent, Iron, Madison, Perry, 
 Bollinger, Cape Girardeau, Shannon, Reynolds, Wayne, Scott, 
 Carter, Oregon, Ripley, Butler, Stoddard, New Madrid, Missis- 
 sippi, Dunklin, Pemiscot, Montgomery, Lincoln, Warren, Saint 
 Charles, Macon, Adair, Audrain, Clarke, Knox, Lewis, Marion, 
 Monroe, Pike, Ralls, Scuyler, Scutland, Shelly, and Randolph. 
 The remaining counties of the State form the western district. 106 
 
 There are two divisions in the eastern district. The city of 
 Saint Louis, and the counties of Saint Louis, Franklin, Gascon- 
 ade, Jefferson, Crawford, Washington, Saint Francois, Saint 
 Genevieve, Dent, Iron, Madison, Perry, Bollinger, Cape Girard- 
 eau, Shannon, Reynolds, Wayne, Scott, Carter, Oregon, Ripley, 
 Butler, Stoddard, New Madrid, Mississippi, Dunklin, Pemiscot, 
 Montgomery, Lincoln, Warren, and Saint Charles form the east- 
 ern division. The remaining counties of the eastern district 
 constitute the northern division. 107 
 
 The western district of Missouri is divided into four divisions. 
 The counties of Clay, Ray, Carroll, Chariton, Sullivan, Jackson, 
 La Fayette, Saline, Cass, Johnson, Bates, Henry, Vernon, Put- 
 nam, Caldwell, Livingston, Grundy, Mercer, Linn, Barton, Jasper, 
 and Saint Clair form the western division of the western district. 
 The counties of Atchison, Nodaway, Holt, Andrew, Buchanan, 
 Platte, Clinton, Harrison, Daviess, De Kalb, Gentry, and Worth 
 form the Saint Joseph division. The counties of Cedar, Polk, 
 Dallas, Laclede, Pulaski, Dade, Greene, Webster, Wright, Texas, 
 
 104 24 St. at L. 430. 106 U. S. R. S. § 540 ; Act of Feb. 28, 
 
 i°6 24 St. at L. ch.279, p. 430; U. S. 1887, ch. 271 (24 St. at L. 424) 
 
 R. S. §§ 572, 658 ; 25 St. at L. ch. 58, p. 107 Act of Feb. 28, 1887, ch. 271 (24 St. 
 
 78. at L. 424).
 
 § 26.] DISTRICTS OF MISSOURI, MONTANA, AND NEBRASKA. 47 
 
 Lawrence, Christian, Douglas, Howell, Newton, Barry, McDon- 
 ald, Stone, Taney, and Ozark form the southern division of the 
 western district. The remaining counties of the western dis- 
 trict form the central division. 108 In each of the divisions of the 
 eastern and western districts, there are established a District 
 and a Circuit Court of the United States, except in the southern 
 division of the western district, in which there is held only a 
 District Court. 109 There are held two terms of the District and 
 Circuit Courts in each year in each of the divisions except in the 
 southern division of the western district, in which there are 
 held two terms of the District Court only. 109 The times and 
 places of holding the District Court in the eastern district are, 
 for the eastern division, at Saint Louis on the first Monday in 
 May and November ; and for the Circuit Court, at the same place 
 on the third Mondays in March and September. 110 For the north- 
 ern division for both courts, at Hannibal on the fourth Monday 
 in May and the first Monday of November. 111 Courts for the 
 western district are held as follows: The District Court for 
 the central division, at Jefferson on the first Mondays in March 
 and September, and the Circuit Court for the same, at Jefferson 
 on the third Mondays in April and November. 112 Both courts for 
 the Saint Joseph division, at Saint Joseph, on the first Mondays 
 in April and October; 113 both courts for western division, at 
 Kansas City, on the third Mondays in May and October ; 1U the 
 district court for the southern division, at Springfield, on the 
 first Mondays in February and August. 115 
 
 Montana,on its admission as a State, constitutes one district. 116 
 Nebraska forms one judicial district. 117 The time and places of 
 holding courts therein, Circuit and District, are at Omaha, on the 
 second Mondays of May and November ; at Lincoln, on the second 
 Monday of January ; in Hastings, on the second Monday in 
 March , and at Norfolk, on the second Monday of April. 118 
 
 i° 8 Act of Feb. 28, 1887, ch. 271 (24 St. "3 Act of Feb. 28, 1887, ch. 271 (24 St. 
 
 at L. 424.) at L. 424). 
 
 i°» Act of Feb. 28, 1887, ch. 271 (24 St. «♦ Act of Feb. 28, 1887, ch. 271 (24 St. 
 
 at L. 424). at L. 424) ; Act of Jan. 21, 1879, ch. 20 
 
 »° U. S. R. S. §§ 572, 658 ; Act of Feb. (20 St. at L. 263 ; U. S. R. S. 1st Supp. 
 
 28, 1887, ch. 271 (24 St. at L. 424). 392). 
 
 111 Act of Feb. 28, 1887, ch. 271 (24 "<* Act of Feb. 28, 1887, ch. 271 (24 St. 
 
 St. at L. 424) ; 25 St. at L. ch. 129, § 1, at L. 424). 
 
 p. 88. 11G 25 St. at L. ch. 180, p. 682. 
 
 l" Act of Feb. 28, 1887, ch. 271 (24 St. » 7 U. S. R. S. § 531. 
 
 at L. 424) ; U. S. R. S. §§ 572, 658. 118 25 St. at L. ch. 891, § 1, p. 443.
 
 48 JURISDICTION. [CHAP. I. 
 
 Nevada forms one judicial district. 119 The District Courts 
 therein are held at Carson City, on the first Mondays in Feb- 
 ruary, May, and October. 120 And the Circuit Courts for the same 
 are held at Carson City, on the third Monday of March and the 
 first Monday of November of each year. 121 
 
 New Hampshire forms one judicial district, 122 the District Courts 
 in which are held at Portsmouth on the third Tuesday in March 
 and September, and at Concord, on the third Tuesday in June 
 and December. 123 The terms of the Circuit Court for the same 
 are held at Portsmouth on the eighth day of May, and at Con- 
 cord on the eighth day of October. 124 
 
 New Jersey constitutes one judicial district, in which the terms 
 of the District Court are held at Trenton on the third Tuesdays 
 in January, April, June, and September. The terms of the Cir- 
 cuit Court for the same district are held at Trenton on the fourth 
 Tuesdays in March and September in each year. 125 
 
 In New York, three districts, the northern, the eastern, and 
 the southern. The northern district includes the counties of 
 Rensselaer, Albany, Schoharie, and Delaware, with all the 
 counties north and west of them. The eastern district includes 
 the counties of Richmond, Kings, Queens, and Suffolk, with the 
 waters thereof. The remainder of the State with the waters 
 thereof constitutes the southern district. 126 The District Courts 
 of the southern and eastern districts of New York have con- 
 current jurisdiction over the waters within the counties of New 
 York, Kings, Queens, and Suffolk, and over all seizures made 
 and all matters done in such waters. 127 The terms of the District 
 Court for the northern district of New York are held at Albany 
 on the third Tuesday in January ; at Utica, on the third Tues- 
 day in March ; at Rochester, on the second Tuesday in May ; at 
 Buffalo, on the third Tuesday in September; at Auburn, on 
 the third Tuesday in November; and, in the discretion of the 
 jud^e of the court, one term annually at such time and place 
 within the counties of Onondaga, Saint Lawrence, Clinton, 
 
 "9 TJ. S. R. S. § 531. m U. S. R. S. § 658 ; Act of Feb. 23, 
 
 i2i U S R S § 572. 1881, ch. 71 (21 St. at L. 330). 
 
 i2i Act of Feb. 18, 1876, ch. 11 (19 St. ** U. S. R. S §§531, 572. 658. 
 at L. 4 ; U. S. R. S. 1st Supp. 200). ™ U. S. R. S. § 541 ; U. S. R. S. 1st 
 
 122 U. S. R. S. § 531. Supp. 138. 
 
 123 U. S. R. S. § 572 ; Act of Feb. 23, ™ U. S. R. S. § 542. 
 1881, ch. 71 (21 St. at L. 330).
 
 § 26.] DISTRICTS OF NEW YORK AND NORTH CAROLINA. 49 
 
 Jefferson, Oswego, and Franklin, as he may from time to time 
 appoint. 128 The terms of the Circuit Court for the same district 
 are held at Canandaigua, on the third Tuesday in June ; at Syra- 
 cuse, on the third Tuesday in November ; at Albany, on the 
 third Tuesday in January. " And when the said term appointed 
 to be held at Albany be adjourned, it shall be adjourned to meet 
 in Utica on the third Tuesday in March ; but said adjourned term 
 shall be for the transaction of civil business only." 129 
 
 The terms of the District Court for the southern district of 
 New York are held in the city of New York, on the first Tuesday 
 in every month. 130 The terms of the Circuit Court for the same 
 district are held at the city of New York on the first Monday 
 in April, and the third Monday in October ; and for the trial of 
 criminal causes and suits in equity, on the last Monday in Feb- 
 ruary ; and, exclusively, for the trial and disposal of criminal 
 cases and matters arising and pending in said court, on the sec- 
 ond Wednesdays in January, March, and May, on the third Wed- 
 nesday in June, and on the second Wednesdays in October and 
 December : " Provided, That the holding of any of the last-men- 
 tioned terms for criminal business shall not dispense with nor 
 affect the holding of any other term of court at the same time, 
 and that the pending of any other term of court shall not pre- 
 vent the holding of any of said terms for criminal business." 131 
 District and Circuit Courts for the eastern district of New York 
 are held at Brooklyn on the first Wednesday in every month. 132 
 
 In North Carolina, two judicial districts, the eastern and the 
 western. The western district includes the counties of Mecklen- 
 burg, Cabarras, Stanly, Montgomery, Richmond, Davie, David- 
 son, Randolph, Guilford, Rockingham, Stokes, Forsyth, Union, 
 Anson, Caswell, Person, Alamance, Orange, Chatham, Moore, 
 Clay, Cherokee, Swain, Macon, Jackson, Graham, Haywood, 
 Transylvania, Henderson, Buncombe, Madison, Yancey, Mitchell, 
 Watauga, Ashe, Alleghany, Caldwell, Burke, McDowell, Ruther- 
 ford, Polk, Cleveland, Gaston, Lincoln, Catawba, Alexander, 
 Wilkes, Surry, Iredell, Yadkin, and Rowan, and all counties 
 which have been formed within this territory since June 4th, 
 
 128 U. S. R. S. § 572 ; Act of March 23, 13 ° U. S. R. S. § 572. 
 
 1882, ch. 48, p. 32 (22 St. at L. 32). ™ U. S. R. S. § 658. 
 
 » U. S. R. S. § 658 ; Act of March 23, 132 tj. s. R. S. §§ 572, 058. 
 1882, ch. 48, p. 32 (22 St. at L. 33).
 
 50 JUKISDICTION. [CHAP. I. 
 
 1872. The eastern district includes the residue of the State. 133 
 The terms of District and Circuit Courts for the western district 
 of North Carolina, are held at Greensborough on the first Mon- 
 days in April and October ; at Statesville, on the third Mondays 
 in April and October ; at Asheville, on the first Mondaj-s in May 
 and November ; and at Charlotte, on the second Monda} r s of June 
 and December. 134 The terms of the District Court for the eastern 
 district of North Carolina are held at Elizabeth City, on the third 
 Mondays in April and October ; at New Berne, on the fourth 
 Mondays in April and October ; and at Wilmington, on the first 
 Mondays after the fourth Mondays in April and October. 135 The 
 terms of the Circuit Court for the same district are held at 
 Raleigh on the first Monday in June and last Monday in Novem- 
 ber ; and at Wilmington on the first Mondays after the fourth 
 Monday in April and October. 136 
 
 North Dakota constitutes, on its admission as a State, one 
 district. 137 
 
 In Ohio, two districts, the northern and the southern. The 
 southern district includes the counties of Belmont, Guernsey, 
 Muskingum, Licking, Franklin, Madison, Champaign, Shelby, 
 and Mercer, as they existed February 10, 1855, with all the 
 counties south of them, and also the counties of Union, Dela- 
 ware, Morrow, Knox, Coshocton, Harrison, and Jefferson. The 
 northern district includes the residue of the State. 138 
 
 The northern district of Ohio is divided into two divisions. 
 The counties of Williams, Defiance, Paulding, Van Wert, Mercer, 
 Auglaize, Allen, Putnam, Henry, Fulton, Lucas, Wood, Han- 
 cock, Hardin, Logan, Marion, Wyandot, Seneca, Sandusky, Ot- 
 tawa, Erie, and Huron, form the western division. The remain- 
 ing counties in the said district form the eastern division. 139 
 
 The southern District of Ohio is divided into two divisions. 
 The eastern division consists of the counties of Union, Delaware, 
 Morrow, Knox, Coshocton, Harrison, Jefferson, Madison, Fayette, 
 Franklin, Pickaway, Ross, Pike, Gallia, Jackson, Meigs, Vin- 
 
 133 u. S. R. S. § 543. 13S U. S. R. S. § 544 ; Act of Feb. 4, 
 
 13* U. S. R. S. §§ 572, 658 ; Act of June 1880, ch. 18 (21 St. at L. 63; U. S. R. S. 
 
 19, 1878, ch. 322 (20 St. at L. 173). 1st Supp. 508). 
 
 i 35 U. S. R. S. 572. 139 Act of June 8, 1878, ch. 169 (20 St. 
 
 130 u. S. R. S. § 658 ; Act of Feb. 17, at L. 101) ; Act of Feb. 4, 1880, ch. 18 
 
 1887, ch. 137 (24 St. at L. 406). (21 St. at L. 63). 
 
 137 25 St. at L. ch. 180, p. 682.
 
 § 26.] DISTRICTS OF OHIO, OREGON, AND PENNSYLVANIA. 51 
 
 ton, Athens, Hocking, Fairfield, Licking, Perry, Muskingum, 
 Morgan, Washington, Noble, Monroe, Belmont, and Guernsey. 
 The western division includes the remaining counties of said 
 district. 140 
 
 The terms of the Circuit and District Courts for the northern 
 district of Ohio are held in Cleveland, in the eastern division, 
 on the first Tuesdays of February, April, and October ; and in 
 Toledo, in the western division, on the first Tuesdays of June 
 and December of each year. 141 The terms of both courts for the 
 southern district are held at Cincinnati on the first Tuesdays in 
 February, April, and October; and at Columbus, on the first 
 Tuesdays in June and December. 142 
 
 Oregon constitutes one judicial district, 143 in which the terms of 
 the District Court are held at Portland on the first Mondays in 
 March, July, and November. 144 The Circuit Court for the same 
 district is held at Portland on the second Monday of April and 
 the first Monday of October. 145 
 
 In Pennsylvania, two districts. 140 The western district in- 
 cludes the counties of Fayette, Greene, Washington, Alle- 
 gheny, Westmoreland, Somerset, Bedford, Huntingdon, Centre, 
 Mifflin, Clearfield, McKean, Potter, Jefferson, Cambria, Indi- 
 ana, Armstrong, Butler, Beaver, Mercer, Crawford, Venango, 
 Erie, Warren, Susquehanna, Bradford, Tioga, Union, Northum- 
 berland, Columbia, Luzerne, and Lycoming, as they existed 
 April 20, 1818. The eastern district includes the rest of the 
 State. 147 The terms of the District Court for the eastern district 
 of Pennsylvania are held at Philadelphia, on the third Mondays 
 in February, May, August, and November. The terms of the 
 Circuit Court for the same district are held at Philadelphia on the 
 first Mondays in April and October. 148 The terms of the District 
 Court for the western district are held at Pittsburgh, on the first 
 Monday in May, and on the third Monday in October ; at Wil- 
 liamsport, on the third Monday in June, and on the first Monday 
 in October ; at Erie, on the second Monday in January, and the 
 
 wo Act of Feb. 4, 1880, ch. 18 (21 St. 143 U. S. R. S. § 531. 
 
 at L. 509) ; U. S. R. S. 1st Supp. 508. 144 U. S. R. S. § 572. 
 
 "i U. S. R. S. §§ 572, 658 ; Act of 145 U. S. R. S. § 658; Act of June 16, 
 
 June 8, 1878, ch. 169 (20 St. at L. 101) ; 1874, ch. 287 (18 St. at L. 76) ; Act of 
 
 Act of July 27, 1882, ch. 351 (22 St. at L. Feb. 18, 1876, ch. 11 (19 St. at L. 4). 
 
 176). 146 U. S. R. S. § 545. 
 
 142 U. S. R. S. §§ 572, 658 ; Act of Feb. ^ U. S. R. S. § 545. 
 
 4, 1880, ch. 18 (21 St. at L. 63). 148 U. S. R. S. §§ 572, 658.
 
 52 JUEISDICTION. [CHAP. I. 
 
 third Monday in July ; 149 and at Scranton, on the first Monday of 
 March and September. 150 The terms of the Circuit Court for the 
 same district are held at Erie, on the second Monday of January 
 and third Monday of July ; at Pittsburgh, on the second Mondays 
 in May and November ; at Williamsport, on the third Mondays in 
 June and September ; and at Scranton, on the first Mondays of 
 March and September. 151 
 
 Rhode Island constitutes one judicial district, in which the 
 terms of the District Court are held at Providence, on the first 
 Tuesdays in February and. August ; at Newport, on the second 
 Tuesdays in May, and on the third Tuesday in October. The 
 Circuit Court for the same district is held at Providence, on the 
 fifteenth daj's of June and November. 152 
 
 In South Carolina, two districts, the eastern and western. The 
 western district includes the counties of Lancaster, Chester, York, 
 Union, Spartanburgh, Greenville, Pendleton, Abbeville, Edgefield, 
 Newburry, Laurens, and Fairfield, as they existed February 21, 
 1823. The eastern district includes the residue of the State. 153 
 The terms of the Circuit Court for the eastern district are held 
 at Charleston on the first Monday of April; and at Columbia 
 on the fourth Monday of November. The terms of the District 
 Court for the eastern district are held at Charleston on the first 
 Mondays in January, May, July, and October. 154 In the western 
 district, the terms of both courts are held at Greenville on the 
 first Monday in August. 155 
 
 South Dakota, on its admission as a State, will constitute one 
 district. 156 
 
 In Tennessee, three districts, the eastern, western, and middle. 
 The eastern district includes the counties of Anderson, Bledsoe, 
 Blount, Bradley, Campbell, Carter, Claiborne, Cocke, Cumber- 
 land, Grainger, Greene, Grundy, Hamilton, Hancock, Hawkins, 
 Jefferson, Johnson, Knox, McMinn, Marion, Meigs, Monroe, 
 Morgan, Polk, Rhea, Roane, Scott, Sevier, Sullivan, Union, and 
 Washington, as they existed February 19, 1856. 157 The western 
 
 i« U. S. R. S. § 572. 154 U. S. R. S. §§ 572, 658. 
 
 iw Act of Aug. 5, 1886, ch. 931 (24 St. 155 U. S. R. S. § 572; 25 St. at L. 
 
 at L. 336). 655. 
 
 151 U. S. R. S. § 658 ; 24 St. at L. 336. 156 25 St. at L. ch. 180, 682. 
 
 152 TJ. S. R. S. §§ 531, 572, 658. 1 57 U. S. R. S. 547 ; Act of June 11, 
 
 153 U. S. R. S. § 546; 25 St. at L. ch. 1880, ch. 203 (21 St. at L. 751). 
 113, p. 655.
 
 {j 26.] DISTRICTS OF TENNESSEE AND TEXAS. 53 
 
 district includes the counties of Benton, Carroll, Henry, Obion, 
 Dyer, Gibson, Lauderdale, Haywood, Tipton, Shelby, Fayette, 
 Hardeman, McNairy, Hardin, Madison, Henderson, and Weakley, 
 as they existed June 18, 1838. The middle district includes 
 the residue of the State. 158 The western district of Tennessee 
 is divided into two divisions, called the eastern and western di- 
 visions. The eastern division includes the counties of Benton, 
 Carroll, Decatur, Gibson, Hardeman, Henderson, Henry, McNairy, 
 Madison, Hardin, Dyer, Lake, Crockett, Weakley, and Obion, 
 and the terms of the circuit and district courts are held therein 
 at Jackson, at least twice in each year, at such times as the judges 
 thereof respectively fix. 159 The remaining counties embraced in 
 this district constitute the western division thereof, and the terms 
 of District and Circuit Courts are held at Memphis, on the fourth 
 Mondays in May and November. 160 
 
 The eastern district of Tennessee is divided into two divisions, 
 known as the northern and southern divisions of the eastern dis- 
 trict. The southern division includes the counties of Hamilton, 
 James, Polk, McMinn, Bradley, Meigs, Rhea, Marion, Sequatchie, 
 Bledsoe, Grundy, Fentress, and Cumberland. The northern di- 
 vision consists of the remaining counties in the district, 161 The 
 District and Circuit Courts for the eastern district are held at 
 Knoxville on the second Mondays in January and July ; and 
 at Chattanooga on the first Mondays of April and October in 
 each year. 162 The terms of the District and Circuit Courts for 
 the middle district of Tennessee are held at Nashville, on the 
 third Mondays in April and October. 163 
 
 In Texas, three districts, the northern, eastern, and western. 164 
 The northern district is composed of the counties of Brazos, 
 Robertson, Leon, Limestone, Freestone, Navaroo, Ellis, Kaufman, 
 Dallas, Rockwall, Hunt, Collin, Grayson, Cooke, Denton, Tarrant, 
 Johnson, Hill, McLennan, Falls, Bell, Coryell, Hamilton, Bosque, 
 
 iss u. S. R. S. § 547 ; Act of March 3, w U. S. R. S. §§ 572, G58 ; Act of June 
 
 1875, ch. 148 (18 St. at L. 480). 11, 1880, ch. 203, § 2 (21 St. at L. 751). 
 
 159 Act of June 20, 1878, ch. 350, § 17 1G3 U. S. R. S. §§ 572, G58. 
 
 (20 St. at L. 200) ; Act of Jan. 15, 1883, i" U. S. R. S. § 548 ; 20 St. at L. ch. 97, 
 
 ch. 25 (22 St. at L. 402) ; Act of Dec. 27, p. 318 ; 21 St. at L. ch. 18, § 1, p. 10 ; 20 
 
 1884 (23 St. at L. 280.) St. at L. ch. 97, p. 318 ; 21 St. at L. ch. 
 
 loo Act of June 20, 1878, ch. 359, § 17 213, p. 198; 25 St. at L. ch. 633, §§ 17 ; 
 
 (20 St. at L. 206) ; U. S. R. S. §§ 572,058. 18, p. 786. 
 
 ic i U. S. R. S. § 547 ; 21 St. at L. 175; 
 23 St. at L. 280, § 2.
 
 54 JURISDICTION. [CHAP. I. 
 
 Comanche, Erath, Somerville, Hood, Parker, Palo, Pinto, Jack, 
 Wise, Montague, Clay, Archer, Wichita, Wilbarger, Hardeman, 
 Knox, Baylor, Haskell, Throckmorton, Young, Stephens, Shackel- 
 ford, Jones, Taylor, Callahan, Eastland, Brown, Coleman, Run- 
 nels, Greer, Nolan, Fisher, Stonewall, King, Cottle, Childress, 
 Collingsworth, Wheeler, Hemphill, Lipscomb, Ochiltree, Roberts, 
 Gray, Donley, Hall, Motley, Dickens, Kent, Scurry, Mitchell, 
 Howard, Borden, Dawson, Gaines, Martin, Andrews, Garza, 
 Crosby, Floyd, Briscoe, Armstrong, Carson, Hutchinson, Hans- 
 ford, Sherman, Moore, Potter, Randall, Swisher, Hale, Lubbock, 
 Lynn, Terry, Hockley, Lamb, Castro, Deaf Smith, Oldham, Hart- 
 ley, Dellam, Palmer, Bayley, Cochran, and Yoakum. The east- 
 ern district is composed of the counties of Matagorda, Wharton, 
 Brazoria, Fort Bend, Colorado, Austin, Waller, Harris, Galveston, 
 Chambers, Jefferson, Orange, Hardin, Liberty, Newton, Jasper, 
 Tyler, Polk, San Jacinto, Montgomery, Walker, Grimes, Madison, 
 Trinity, Angelina, San Augustine, Sabine, Shelby, Nacogdoches, 
 Cherokee, Houston, Anderson, Henderson, Smith, Rusk, Panola, 
 Harrison, Gregg, Upshur, Wood, Vanzandt, Rains, Hopkins, Camp, 
 Titus, Marion, Cass, Bowie, Franklin, Morris, Red River, Jackson, 
 Lamar, Fannin, and Delta, and so much of the Indian Territory 
 as is thereto annexed by the Act of March 1, 1889. The western 
 district includes the counties of Calhoun, Aransas, Victoria, 
 Goliad, Refugio, Bee, San Patricio, Neuces, Cameron, Hidalgo, 
 Starr, Zapata, Duval, Encinal, Webb, La Salle, McMullen, Live 
 Oak, De Witt, Lavaca, Gonzales, Wilson, Karnes, Atascosa, Frio 
 Dimmit, Zavala, Maverick, Kinney, Uvalde, Medina, Bexar, Guad- 
 alupe, Caldwell, Fayette, Washington, Lee, Burleson, Milan, 
 Williamson, Bastrop, Travis, Hays, Comal, Kendall, Blanco, Bur- 
 nett, Llano, Gillespie, Kerr, Bandera, Edwards, Kimball, Mason, 
 Menard, El Paso, Presidio, Tom Green, Crockett, Pecos, Concho, 
 McCulloch, San Saba, and Lampasas. 165 The terms of District 
 and Circuit Courts for the northern district are held at Dallas, on 
 the second Monday of January and the third Monday of May ; at 
 Graham, on the second Monday of March and the third Monday 
 of October ; at Waco, on the second Monday of April, and the 
 third Monday of November. 166 The terms of the same courts for 
 the eastern district are held at Galveston on the first Mondays of 
 
 155 See references in last note. 166 Act of June 20, 1884, ch. 102 (23 St- 
 
 at L. 48).
 
 § 26. DISTRICTS OF TEXAS, VERMONT, AND VIRGINIA. 55 
 
 March and November ; at Tyler, on the second Mondays of Jan- 
 nary and May ; at Jefferson, on the second Mondays of February 
 and September ; and at Paris, on the third Monday of April and 
 second Monday of October. 167 The terms of the same courts for 
 the western district are held at Brownsville, on the first Mondays 
 of January and July ; at San Antonio, on the first Mondays of 
 May and November ; at El Paso, on the first Mondays in April 
 and October ; and at Austin on the first Mondays in February 
 and August. 168 
 
 Vermont constitutes one judicial district, 169 for which the terms 
 of the District and Circuit Courts are held at Burlington, on the 
 fourth Tuesday in February ; at Windsor, on the third Tuesday 
 in May ; and at Rutland, on the first Tuesday in October. 170 
 
 In Virginia two districts, the eastern and western. The 
 western district includes the counties of Albemarle, Alleghany, 
 Amherst, Appomattox, Augusta, Bath, Bedford, Bland, Botetourt, 
 Buchanan, Buckingham, Campbell, Carroll, Charlotte, Clarke, 
 Craig, Cumberland, Floyd, Franklin, Frederick, Fluvanna, Giles, 
 Grayson, Greene, Halifax, Henry, Highland, Lee, Madison, Mont- 
 gomery, Nelson, Patrick, Page, Pulaski, Pittsylvania, Rappahan- 
 nock, Roanoke, Rockbridge, Rockingham, Russell, Scott, Smyth, 
 Shenandoah, Tazewell, Washington, Wise, Wythe, and Warren. 
 The eastern district includes the residue of the State. 171 The 
 terms of the District and the Circuit Court for the eastern dis- 
 trict of Virginia are held at Richmond on the first Mondays in 
 April and October ; at Alexandria, on the first Mondays in 
 January and July ; and at Norfolk, on the first Mondays in May 
 and November. The terms of the same courts for the western 
 district are held at Danville on the Tuesday after the third Mon- 
 day in June, and on the Tuesday after the third Monday in 
 November ; at Lynchburg, on the Tuesdays after the third Mon- 
 days in March and September ; at Abingdon, on the Tuesdays 
 after the fourth Mondays in May and October ; and at Harrison- 
 burgh, on the Tuesday after the first Monday in May, and the 
 Tuesday after the second Monday in October. 172 
 
 167 Ibid, and 25 St. at L. ch. 633, § 18, w U. S. R. S. § 531. 
 
 p. 786. i"« TJ. S. R. S. §§ 572, 658 ; Act of June 
 
 168 U. S.R. S. §§ 572, 658: Act of Fcb.24, 5, 1874, ch. 214 (18 St. at L. 53). 
 1879, ch. 97 (20 St. atL. 318) ; Act of June "l U. S. R. S. § 5 19. 
 
 11, 1879, ch. 15 (21 St. at L. 10) ; Act of " a U. S. R. S. §§ 572, 658; Act of Feb. 
 Feb. 18, 1881, ch. 62 (21 St. at L. 326) ; Act 14, 1881, ch. 45 (21 St. at L. 324). 
 of June 3, 1884, ch. 64 (23 St. at L. 35).
 
 56 JURISDICTION. [chap. I. 
 
 Washington, on its admission as a State, will constitute one 
 district. 173 
 
 West Virginia constitutes one judicial district. 174 The terms of 
 the Circuit and District Courts for West Virginia are held at 
 Wheeling, on the first days of March and September ; at Clarks- 
 burg, on the first days of April and October ; at Charleston, on 
 the first days of May and November. When an}'- of these dates 
 fall on Sunday the court will be held on the following Monday. 175 
 The terms of the circuit court for the same district are also 
 held at Parkersburg on the tenth days of January and June. 
 When either of these dates falls on Sunday the term will com- 
 mence on the following Monday. 176 Terms of both courts are 
 also held at Martinsburg on the first Tuesday in August. 177 
 
 In Wisconsin two districts, the eastern and western. The 
 western district includes the counties of Rock, Jefferson, Dane, 
 Green, Grant, Columbia, Iowa, La Fayette, Sauk, Richland, 
 Crawford, Vernon, La Cross, Monroe, Adams, Juneau, Buffalo, 
 Chippewa, Dunn, Clark, Jackson, Eau Claire, Pepin, Marathon, 
 Wood, Pierce, Polk, Portage, Saint Croix, Trempealeau, Douglas, 
 Barron, Burnett, Ashland, and Bayfield. The eastern district 
 includes the residue of the State. 178 The terms of the District 
 and Circuit Court for the eastern district of Wisconsin are held at 
 Oshkosh, on the second Tuesday of July, and at Milwaukee, on 
 first Mondays of January and October. 179 The same courts for 
 the western district of Wisconsin are held at Madison, on the 
 first Monday in June, and at La Crosse, on the third Tuesday in 
 September. 180 
 
 § 27. Sources of Federal Equity Practice. — The Revised Statutes 
 provide : — 
 
 " Sec. 917. The Supreme Court shall have power to prescribe, 
 from time to time, and in any manner not inconsistent with any 
 law of the United States, the forms of writs and other process, the 
 modes of framing and filling proceedings and pleadings, of taking 
 and obtaining evidence, of obtaining discovery, of proceeding to 
 
 173 25 St. at L. ch. 180, p. 682. " 7 25 St. at L. ch. 261, § 1, p. 151. 
 
 174 U. S. R. S. § 531. 178 U. S. R. S. § 550. 
 
 175 U. S. R. S. § 572 ; Act of March 9, 179 U. S. R. S. §§ 572, 658 ; Act of June 
 1878, ch. 27 (20 St. at L. 27) ; Act of 16, 1874, ch. 286 (18 St. at L. 75). 
 
 Feb. 6, 1889 (25 St. at L. 655). 180 U. S. R. S. §§ 572, 658. 
 
 its u. S. R. S. § 658 ; Act of Dec. 21, 
 1878, ch. 9 (20 St. at L. 259).
 
 § 27.] SOURCES OF FEDERAL EQUITY PRACTICE. 57 
 
 oh tain relief, of drawing up, entering, and enrolling decrees, and 
 of proceeding before trustees appointed by the court, and gener- 
 ally to regulate the whole practice to be used in suits in equity 
 or admiralty, by the circuit and district courts. 
 
 "Sec. 918. The several circuit and district courts may, from 
 time to time, and in any manner not inconsistent with any law 
 of the United States or with any rule prescribed by the Supreme 
 Court under the preceding section, make rules and orders directing 
 the returning of writs and processes, the filing of pleadings, the 
 taking of rules, the entering and making up of judgments by de- 
 fault, and other matters, in vacation, and otherwise regulate their 
 own practice as may be necessary or convenient for the advance- 
 ment of justice and the prevention of delays in proceedings." 
 
 Under these provisions the Supreme Court has from time to 
 time promulgated ninety-four rules of equity practice ; and most 
 of the inferior courts have also adopted rules of their own. The 
 ninetieth rule of the Supreme Court, which was promulgated in 
 1842, provides that, " in all cases where the rules prescribed by 
 this court or by the circuit court do not apply, the practice of 
 the circuit court shall be regulated by the present practice of 
 the High Court of Chancery in England, so far as the same may 
 reasonably be applied consistently with the local circumstances 
 and local conveniences of the district where the court is held, 
 not as positive rules, but as furnishing just analogies to regulate 
 the practice." Of this rule Judge Sawyer said: — 
 
 " The jurisdiction of this court is derived from the Constitu- 
 tion and laws of the United States ; and these rules are simply 
 rules of practice, for regulating the mode of proceeding in the 
 courts. They do not, and could not, properly, either limit or 
 enlarge the jurisdiction of the court. The rule quoted simpty 
 regulates the practice in exercising the jurisdiction of the court 
 in those respects wherein the rules adopted do not apply ; but 
 the practice of the High Court of Chancery is to be applied, not 
 as controlling, but simply as furnishing just analogies to regulate 
 the practice." 1 
 
 By reference to these sources and the decisions of the courts 
 resulting from them, the practice at equity in the courts of the 
 United States must be determined. 2 
 
 1 Lewis v. Shainwald, 7 Saw. 403, 2 See Ex parte Poultney v. City of 
 
 405. La Fayette, 12 Pet. 472, at page 474.
 
 58 
 
 JURISDICTION. 
 
 [chap. I. 
 
 NOTE 
 
 UPON LIMITATIONS ON JURISDICTION BY RESIDENCE IN CERTAIN STATES. 
 
 (See page 31.) 
 
 Alabama. — 23 St. at L. 18-19, after di- 
 viding the northern district of Alabama 
 into northern and southern divisions, 
 provides : — 
 
 " § 4. That all civil suits, not of a 
 local character, which shall be hereafter 
 brought in the circuit or district court of 
 United States for the northern district 
 of Alabama, in either of said divisions, 
 against a single defendant, or where all 
 the defendants reside in the same di- 
 vision of said district, shall be brought 
 in the division in which the defendant or 
 defendants reside ; but if there are two 
 or more defendants, residing in different 
 divisions, such suit may be brought in 
 either division ; and all mesne and final 
 process, subject to the provisions of this 
 act issued in either of said divisions, may- 
 be served and executed in either or both 
 of the divisions." 
 
 Georgia. —21 St. atL. 62-63 (1st Supp. 
 U. S. K. S. 507-508), after altering the 
 boundaries of the southern district of 
 Georgia, and dividing it into eastern and 
 western divisions (for which see supra, 
 p. 38), provides that: — 
 
 " § 4. All suits not of a local nature 
 in the circuit and district courts against 
 a single defendant, inhabitant of said 
 State, must be brought in the division of 
 the district where he resides ; but if there 
 are two or more defendants residing in 
 different divisions of the district, such 
 suits may be brought in either division. 
 All issues of fact in said suits shall be 
 tried at a term of the court held in the 
 division where the suit is so brought. 
 
 " § 5. Prosecutions for crimes or of- 
 fences hereafter committed in either of 
 the subdivisions shall be cognizable with- 
 in such division ; and all prosecutions 
 for crimes or offences heretofore com- 
 mitted within either of said counties, 
 taken as aforesaid from the northern 
 district, or committed in the southern 
 district as hitherto constituted, shall be 
 
 commenced and proceeded with as if this 
 act had not been passed. 
 
 " § 6. Civil actions or proceedings now 
 pending at Savannah in said southern 
 district, which would under this act be 
 brought in the western division of said 
 district, may be transferred, by the con- 
 sent of all the parties, to said western 
 division ; and in case of such transfer, 
 all papers and files therein, with copies 
 of all journal entries, shall be transferred 
 to the deputy clerk's office at Macon, 
 and the same shall be proceeded with in 
 all respects as though it was originally 
 commenced in the western division. 
 
 " § 7. In all cases of removal of suits 
 from the courts of the State of Georgia 
 to the courts of the United States in the 
 southern district of Georgia, such removal 
 shall be to the United States courts in 
 the division in which the county is situ- 
 ated from which the removal is made ; 
 and the time within which the removal 
 shall be perfected, in so far as it refers 
 to, or is regulated by, the terms of the 
 United States courts, shall be deemed to 
 refer to the terms of the United States 
 courts in such division. 
 
 " § 8. All grand and petit jurors sum- 
 moned for service in each division shall 
 be residents of such division. All mesne 
 and final process, subject to the pro- 
 visions hereinbefore contained, issued in 
 either of said divisions may be served 
 and executed in either or both of the 
 divisions." 
 
 Indiana.— U. S. R. S. § 743. "In the 
 district of Indiana all actions of which 
 the circuit and district courts have juris- 
 diction may be instituted in said courts, 
 respectively, held at New Albany and 
 Evansville, in the first instance, by filing 
 the proper pleadings or other papers in 
 the offices of the deputy clerks perform- 
 ing the duties of clerks of said courts 
 respectively ; and all proper and lawful 
 process shall issue therefrom in the same
 
 27.] 
 
 LIMITATIONS UPON JUEISDICTION BY RESIDENCE. 
 
 59 
 
 manner as from other circuit and district 
 courts in like cases." 
 
 Iowa. — U. S. R. S. § 744. " In the dis- 
 trict of Iowa all suits not of a local nature 
 in the district court against a single de- 
 fendant, inhabitant of such State, must 
 be brought in the division of the district 
 where he resides ; but if there are two or 
 more defendants, residing in different di- 
 visions of the district, such suits may be 
 brought in either division, and duplicate 
 writs may be sent to the other defend- 
 ants. The clerk issuing the duplicate 
 writ shall indorse thereon that it is a 
 true copy of a writ sued out of the court 
 in the proper division of the district ; and 
 the original and duplicate writs, when 
 executed and returned into the office 
 from which they issue, shall constitute 
 and be proceeded in as one suit. All 
 issues of fact in such suits shall be tried 
 at a term of the court held in the division 
 where the suit is so brought." 
 
 21 St. at L. 155 (1 Supp. U. S. R. S. 
 530) : " § 1. That the circuit court of the 
 United States in and for the district of 
 Iowa shall hereafter be held at the times 
 and places provided by law for holding 
 the United States district court in and 
 for said district. Causes removed from 
 any court of the State of Iowa into said 
 circuit court within said district shall 
 be removed to the circuit court in the 
 division in which such State court is held, 
 unless the parties thereto shall otherwise 
 agree, or the court, for good cause, shall 
 otherwise order. 
 
 " § 2. That all civil suits not of a local 
 nature which shall be hereafter brought 
 in the circuit or district court of the 
 United States in said district must be 
 brought in the division of the district 
 where the defendant or defendants re- 
 side ; but if there are two or more de- 
 fendants residing in different divisions 
 the plaintiff may sue in either one of the 
 divisions in which a defendant resides. 
 All issues of fact triable in either of said 
 courts shall be tried in the division where 
 the defendant or one of the defendants 
 resides, unless by consent of both parties 
 the case shall be removed to some other 
 division. Where the defendant is a non- 
 resident of the district suit may be 
 brought in any division where property 
 or the defendant is found." 
 
 Kentucky. — U. S. R. S. § 745. " In the 
 district of Kentucky the clerks of the cir- 
 cuit and district courts, respectively, upon 
 issuing original process in a civil action, 
 shall make it returnable to the court 
 nearest to the county of the residence of 
 the defendant, or of that defendant whose 
 county is nearest a court, if he have in- 
 formation sufficient, and shall imme- 
 diately, upon payment by the plaintiff 
 of his fees accrued, send the papers filed 
 to the clerk of the court to which the 
 process is made returnable ; and when- 
 ever the process is not thus made return- 
 able, any defendant may, upon motion, 
 on or before the calling of the cause, 
 have it transferred to the court to which 
 it should have been sent had the clerk 
 known the residence of the defendant 
 when the action was brought." 
 
 Michigan. — 20 St. at L. 175 (1 Supp. 
 U. S. R. S. 375) : " § 1. That the counties 
 of Chippewa, Schoolcraft, Marquette, 
 Houghton, Keweenaw, Ontonagon, Isle 
 Royale, Baraga, and Mackinaw, being 
 and including all that portion of the 
 territory and waters of said eastern dis- 
 trict lying in the upper peninsula of 
 Michigan be, and the same are hereby 
 detached from the eastern judicial dis- 
 trict of Michigan, and attached to the 
 western judicial district of said State. 
 
 " § 2. That for the trial and determi- 
 nation of all causes and proceedings 
 cognizable and triable in the circuit and 
 district courts of the United States for 
 the western district of Michigan as 
 bounded and described in this act, the 
 said district shall consist of two divisions 
 known respectively as the southern and 
 northern divisions of said district. The 
 southern division shall comprise all that 
 portion of said district lying and being 
 in the lower peninsula of said State, and 
 the northern division of said district shall 
 comprise all the territory and waters of 
 the entire upper peninsula of said State ; 
 and there shall be two regular terms of 
 the circuit and district courts begun and 
 held in each of the divisions of said 
 western district annually. The regular 
 terms of the circuit and district courts 
 in said southern division shall be held at 
 the city of Grand Rapids, commencing 
 on the first Tuesdays of .March and Octo- 
 ber in each year. The regular terms of
 
 60 
 
 JURISDICTION. 
 
 [CHAP. I. 
 
 the circuit and district courts in said 
 northern division shall be held at the 
 city of Marquette, commencing upon the 
 first Tuesdays of May and September in 
 each year. And all issues of fact shall 
 be tried at the terms of said courts to be 
 held in the division where such suits shall 
 hereafter be commenced ; but nothing 
 herein contained shall prevent the said 
 circuit and district courts from regulat- 
 ing by general rule the venue of transi- 
 tory actions, either at law or in equity, 
 and from changing the same for cause. 
 
 " § 3. That all suits and proceedings 
 hereafter to be brought in the said cir- 
 cuit or district courts not of a local na- 
 ture shall be brought in a court of the 
 division of the district where the defend- 
 ant resides. But if there be more than 
 one defendant, and they reside in different 
 divisions of the district, the plaintiff may 
 sue in either divisions and send duplicate 
 writ or writs to the other defendants, on 
 which the plaintiff or his attorney shall 
 endorse that the writ thus sent is a copy 
 of a writ sued out of a court of the proper 
 division of the said district ; and the said 
 writs when executed and returned into 
 the office from which they issuer!, shall 
 constitute one suit, and be proceeded in 
 accordingly. 
 
 " § 4. The clerk of the circuit and 
 district courts for the western division 
 of Michigan shall reside and keep his 
 office at Grand Rapids, and shall also 
 appoint a deputy clerk for said courts 
 held at Marquette, who shall reside and 
 keep his office at that place ; and said 
 deputy clerk shall keep in his office full 
 records of all actions and proceedings in 
 the said circuit and district courts for the 
 northern division of said district held at 
 that place, and shall have the same power 
 to issue all processes from the said courts 
 and perform any other duty that is or 
 may be given to the clerks of other cir- 
 cuit and district courts in like cases. 
 
 "§5. That the district attorney and 
 marshal of the said western district of 
 Michigan shall respectively perform the 
 duties of district attorney and marshal 
 for the southern and northern divisions 
 of said district as established by this act. 
 The marshal of said district shall keep an 
 office and a deputy marshal at Marquette 
 in the northern division of said district. 
 
 " § 6. Any person charged with viola- 
 ting any of the penal or criminal statutes 
 of the United States of which the said 
 circuit or district courts have jurisdiction, 
 shall be proceeded against by indictment 
 or otherwise, within the division of said 
 district where the alleged offence or of- 
 fences shall be committed, and shall have 
 his or her trial at a term of the said court 
 held in said division, unless for cause 
 shown, the judge shall otherwise direct ; 
 and one grand and one petit jury only 
 shall be summoned, and serve in both said 
 courts at each term thereof; and jurors 
 shall be selected and drawn from the di- 
 vision of the said district in which they 
 reside and in which the terms of the said 
 circuit and district courts to which they 
 are summoned are held. 
 
 "§ 7. This act shall not affect or in 
 any wise interfere with causes of action 
 now pending in the circuit and district 
 courts for the eastern district of Michi- 
 gan, but the same may be proceeded with 
 in the same manner as though this act 
 had not been passed : Provided, however, 
 That upon cause shown, the circuit and 
 district courts for the eastern district may 
 transfer civil causes arising in that por- 
 tion of said district detached therefrom 
 by this act to the circuit and district 
 courts for the northern division of the 
 western district of Michigan, provided 
 for in this act. The circuit and district 
 courts for the eastern district of Michi- 
 gan shall continue to have the same ju- 
 risdiction in reference to all crimes and 
 offences committed prior to the passage 
 of this act in any portion of the State of 
 Michigan by this act detached from said 
 eastern district and attached to said west- 
 ern district. 
 
 "§ 8. All provisions of law in conflict 
 with this act are hereby repealed. 
 
 "§9. There shall be one or more 
 terms of the district court for the eastern 
 district of Michigan, held annually at 
 the United States court room in the city 
 of Port Huron in said district, in the dis- 
 cretion of the judge of said district court, 
 and at such times as he shall appoint 
 therefor." 
 
 Missouri. — 20 St. at L. 263 (1 Supp. 
 U. S. R. S. 393) : " § 1. The western dis- 
 trict of Missouri is hereby divided into 
 two divisions, which shall be known as
 
 27.] 
 
 LIMITATIONS UPON JUKISDICTION BY RESIDENCE. 
 
 01 
 
 the eastern and western divisions of the 
 western district of Missouri. The western 
 division shall include the counties of An- 
 drew, Atchison, Barton, Bates, Buchanan, 
 Caldwell, Carroll, Cass, Chariton, Clay, 
 Clinton, Daviess, De Kalb, Gentry, Grun- 
 dy, Harrison, Holt, Jackson, Jasper, La 
 Fayette, Linn, Livingston, Mercer, Noda- 
 way, Platte, Putnam, Ray, Saline, Sulli- 
 van, Vernon, and Worth ; and a term of 
 the district court and circuit of the 
 United States for said district shall be 
 held therein at the City of Kansas on 
 the third Monday in May and the third 
 Monday in October of each year. The 
 remaining counties embraced in said dis- 
 trict shall constitute the eastern division 
 thereof, and the terms of the district and 
 circuit courts of the United States for 
 said district shall be held therein at the 
 times and place now prescribed by law. 
 
 " § 2. All offences hereafter com- 
 mitted in either of said divisions shall be 
 cognizable and indictable within the di- 
 vision where committed ; and all grand 
 and petit jurors summoned for service in 
 each division shall be inhabitants thereof. 
 And all offences heretofore committed 
 within said district shall be prosecuted 
 and tried as if this act had not passed. 
 
 " § 3. All civil suits not of a local char- 
 acter which shall be hereafter brought in 
 the district or circuit courts of the United 
 States for the western district of Missouri 
 in either of said divisions, against a single 
 defendant, or where all the defendants 
 reside in the same division of said dis- 
 trict, shall be brought in the division in 
 which the defendant or defendants re- 
 side ; but if there are two or more de- 
 fendants residing in different divisions, 
 such suit may be brought in either di- 
 vision, and all mesne and final process 
 subject to the provisions of this act, issued 
 in either of said divisions, may be served 
 and executed in either or both of the 
 divisions. 
 
 " § 4. The clerks of the circuit and 
 district courts for said district shall each 
 appoint a deputy clerk at the place where 
 their respective courts are required to be 
 held in the division of the district in 
 which such clerk shall not himself reside, 
 each of whom shall, in the absence of the 
 clerk, exercise all the powers and perform 
 all the duties of clerk within the di- 
 
 vision for which he shall be appointed : 
 Provided, That the appointment of such 
 deputies shall be approved by the court 
 for which they shall be respectively ap- 
 pointed, and may be annulled by such 
 court at its pleasure. And the clerk shall 
 be responsible for the official acts and 
 neglects of all such deputies. 
 
 "§5. All civil suits and proceedings 
 now pending in the circuit or district 
 court of said western district of Missouri, 
 and which would, if instituted after the 
 passage of this act, be required to be 
 brought in the western division of said 
 district, may be transferred, by consent 
 of all the parties, to said western division 
 of said district, and there disposed of in 
 the same manner and with like effect as 
 if the same had been there instituted ; 
 And all process, writs, and recognizances 
 relating to such suits and proceedings so 
 transferred shall be considered as belong- 
 ing to the term of the court in the western 
 division of said district, in the same man- 
 ner and with like effect as if they had 
 been issued or taken in reference thereto 
 originally." 
 
 Ohio. — 20 St. at L. 101 (1 Supp. U. S. 
 R. S. 333) : " § 1. That a term of the circuit 
 court and district court for the northern 
 district of Ohio shall be held at Toledo, 
 in said State, on the first Tuesday of the 
 months of June and December in each 
 year; and one grand jury and one petit 
 jury only shall be summoned, and serve 
 in both of said courts at each term there- 
 of. And the existing provisions of law 
 fixing the times of holding the district 
 court at Toledo are hereby repealed. 
 
 "§ 2. Said northern district shall be, 
 and hereby is, divided into two divisions, 
 to be known as the eastern and the west- 
 ern division of the northern district of 
 Ohio. The western division shall con- 
 sist of twenty-four counties, to wit ; Wil- 
 liams, Defiance, Paulding, Van Wert, 
 Mercer, Auglaize, Allen, Putnam, Henry, 
 Fulton, Lucas, Wood, Hancock, Hardin, 
 Logan, Union, Delaware, Marion, Wy- 
 andot, Seneca, Sandusky, Ottawa, Erie, 
 and Huron ; and the eastern division shall 
 consist of the remaining counties in said 
 district. But no additional clerk or mar- 
 shal shall be appointed in said district. 
 
 " § 3. All suits not of a local nature 
 in the circuit and district courts, against
 
 62 
 
 JURISDICTION. 
 
 [CHAP. I. 
 
 a single" defendant, inhabitant of such 
 State, must be brought in the division of 
 the district where he resides ; but if there 
 are two or more defendants, residing in 
 different divisions of the district, such 
 suits may be brought in either division. 
 All issues of fact in such suits shall be 
 tried at a term of the court held in the 
 division where the suit is so brought." 
 
 " § 6. . . . All mesne and final process, 
 subject to the provisions hereinbefore 
 contained, issued in either of said di- 
 visions, may be served and executed in 
 either or both of the divisions. • . ." 
 
 21 St. at L. 63 (1 Supp. U. S. R. S. 
 508, 509) : " § 1. That the counties of 
 Union, Delaware, Morrow, Knox, Cos- 
 hocton, Harrison, and Jefferson, hereto- 
 fore composing a part of the northern 
 district of Ohio, be transferred to, and 
 henceforth form a part of, the southern 
 district of Ohio. 
 
 " § 2. A term of the circuit court and 
 of the district court for the southern dis- 
 trict of Ohio shall be held at Columbus 
 in said State on the first Tuesday of the 
 months of June and December in each 
 year. 
 
 " § 3. Said southern district shall be, 
 and hereby is, divided into two divisions, 
 to be known as the eastern and the west- 
 ern division of the southern district of 
 Ohio. The eastern division shall consist 
 of twenty-nine counties, to wit : Union, 
 Delaware, Morrow, Knox, Coshocton, 
 Harrison, Jefferson, Madison, Fayette, 
 Franklin, Pickaway, Ross, Pike, Gallia, 
 Jackson, Meigs, Vinton, Athens, Hock- 
 ing, Fairfield, Licking, Perry, Muskin- 
 gum, Morgan, Washington, Noble.Monroe, 
 Belmont, and Guernsey ; and the western 
 division shall consist of the remaining 
 counties in said district. But no ad- 
 ditional clerk or marshal shall be ap- 
 pointed in said district. 
 
 " § 4. All suits not of a local nature 
 in the circuit and district courts against 
 a single defendant, inhabitant of said 
 State, must be brought in the division 
 of the district where he resides ; but if 
 there are two or more defendants residing 
 in different divisions of the district, such 
 suits may be brought in either division. 
 All issues of fact in said suits shall be 
 tried at a term of the court held in the 
 division where the suit is so brought." 
 
 " § 7. . . . All mesne and final process 
 subject to the provisions hereinbefore 
 contained issued in either of said di- 
 visions may be served and executed in 
 either or both of the divisions. 
 
 " § 8. In all cases of removal of suits 
 from the courts of the State of Ohio to 
 the courts of the United States in the 
 southern district of Ohio, such removal 
 shall be to the United States courts in 
 the division in which the county is situ- 
 ated from which the removal is made ; 
 and the time within which the removal 
 shall be perfected, in so far as it refers 
 to or is regulated by the terms of the 
 United States courts, shall be deemed to 
 refer to the terms of the United States 
 courts in such division." 
 
 Tennessee.— 21 St. at L. 751 (1 Supp. 
 U. S. R. S. 548) : "§ 1. That the county 
 of Grundy heretofore composing a part of 
 the middle district of Tennessee be trans- 
 ferred to, and henceforth form a part of, 
 the eastern district of Tennessee. 
 
 " § 2. A term of the circuit court and 
 of the district court for the eastern dis- 
 trict of Tennessee shall be held at Chat- 
 tanooga in said State in each year on the 
 first Mondays of April and October, after 
 the passage of this act. 
 
 "§ 3. Said eastern district shall be 
 and hereby is divided into two divisions, 
 to be known as the northern and southern 
 divisions of the eastern district of Ten- 
 nessee, the southern division shall con- 
 sist of the following counties, to wit, 
 Hamilton, James, Polk, McMinn, Brad- 
 ley, Meigs, Rhea, Marion, Sequatchie, 
 Bledsoe, Grundy, and Cumberland, and 
 the northern division shall consist of the 
 remaining counties in said district. But 
 no additional clerk or marshal shall be 
 appointed in said district. 
 
 " § 4. That the clerks of the district 
 and circuit courts for the eastern district 
 of Tennessee, and the marshal and dis- 
 trict attorney for said district, shall per- 
 form the duties appertaining to their 
 offices respectively for said courts. And 
 the said clerks and marshals shall each 
 appoint a deputy to reside and keep their 
 offices in the City of Chattanooga, and 
 who shall, in the absence of their prin- 
 cipals, do and perform all the duties 
 appertaining to their offices respectively. 
 
 " § 5. All suits not of a local nature
 
 27.] 
 
 LIMITATIONS UPON JURISDICTION BY RESIDENCE. 
 
 G3 
 
 in the circuit and district courts against 
 a single defendant, inhabitant of said 
 State, must be brought in the division of 
 the district where he resides ; but if there 
 are two or more defendants residing in 
 different divisions of the district, such 
 suits may be brought in either division. 
 All issues of fact in said suits shall be 
 tried at a term of the court held in the 
 division where the suit is so brought."' 
 
 " § 7. . . . All mesne and final process 
 subject to the provisions hereinbefore 
 contained, issued in either of said di- 
 visions may be served and executed in 
 either or both of the divisions. 
 
 " § 8. In all cases of removal of suits 
 from the courts of the State of Ten- 
 nessee to the courts of the United States 
 in the eastern district of Tennessee, such 
 
 removal shall be to the United States 
 courts in the division in which the coun- 
 ty is situated from which the removal is 
 made ; and the time within which the 
 removal shall be perfected in so far as it 
 refers to or is regulated by the terms of 
 the United States courts, shall be deemed 
 to refer to the terms of the United States 
 courts in such division. 
 
 " § 9. That each of said courts shall 
 be held in a building to be provided for 
 that purpose by the State or municipal 
 authorities and without expense to the 
 United States. 
 
 " § 10. This act shall be in force from 
 and after the first day of July anno 
 Domini eighteen hundred and eighty ; 
 and all acts and parts of acts incon- 
 sistent herewith are hereby repealed."
 
 64 PLAINTIFFS OR DEFENDANTS IN A SUIT IN EQUITY. [CHAP. II. 
 
 CHAPTER II. 
 
 PERSONS WHO MAY BE PLAINTIFFS OR DEFENDANTS IN A 
 SUIT IN EQUITY. 
 
 § 28. General Rule as to Persons capable of being Plaintiffs. — All 
 persons may file a bill in equity in their own right, except alien 
 enemies, infants, idiots, and lunatics, married women, and pos- 
 sibly those who by the laws of a State have been declared civilly 
 dead. 
 
 § 29. States as Plaintiffs. — A State may sue as plaintiff in any 
 court of the United States. 1 
 
 § 30. Alien Enemies as Plaintiffs. — Subjects of a country at 
 war with the United States cannot sue in the State or Federal 
 courts before the conclusion of peace ; unless they are residents of 
 this country or within the jurisdiction of one of our allies. 1 If a 
 complainant become an alien enemy after a suit has been begun, 
 the defense may be interposed by plea or answer. 2 The effect of 
 such a defense is then, however, merely to suspend the cause of 
 action and suit, not to dismiss the bill. 3 
 
 § 31. Married Women as Plaintiffs. — A married woman orig- 
 inally could only sue when joined with her husband, unless he 
 had deserted her, and was without the realm or civilly dead, 
 when she could sue alone; 1 or unless the suit concerned her sep- 
 arate property, when she was obliged to sue by her next friend. 2 
 The next friend, however, was chosen by herself ; 3 and the hus- 
 band was then usually made a party defendant, that he might 
 
 § 29. * Amesr. Kansas, 111 U. S. 449; Levine v. Taylor, 12 Mass. 8; Hamersley 
 
 United States v. Louisiana, 123 U. S. 32. v. Lambert, 2 Johns. Ch. (N. Y.) 508; Ex 
 
 § 30. 1 Wilcox v. Henry, 1 Dall. 69; parte Boussmaker, 13 Ves. 71; Wilcox v. 
 
 Crawford v. The William Penn, 1 Pet. Henry, 1 Dall. 69; Story's Eq. PI. § 54. But 
 
 C. C. 106 ; Mumford v. Mumford, 1 Gall, see Mumford v. Mumford, 1 Gall. 366. 
 366; Clarke v. Morey, 10 Johns (N. Y.) § 31. 1 Story's Eq. PI. § 61 ; Countess 
 
 69 ; 2 Kent's Com. 63. of Portland v. Prodgers, 2 Vern. 104. 
 
 2 Bell v. Chapman, 10 Johns. (N. Y. ) 2 Wake v. Parker, 2 Keen, 70; Story's 
 183 Eq. PL § 63. 
 
 3 Hutchinson v. Brock, 11 Mass. 119 ; 3 Story's Eq. PI. § 61 ; Gamber v. 
 Parkinson v. Went worth, 11 Mass. 26 ; Atlee, 2 De G. & Sm. 745.
 
 § 32.] SUITS ON BEHALF OF INFANTS. 65 
 
 have an opportunity to assert any claim he might have to the 
 subject-matter of the suit. 4 In the courts of the United States, 
 however, the rule was early laid down as follows : " Where the 
 wife complains of the husband and asks relief against him she 
 must use the name of some other person in prosecuting the suit ; 
 but where the acts of the husband are not complained of, he 
 would seem to be the most suitable person to unite with her in 
 the suit. This is a matter of practice within the discretion of the 
 court." 5 In the Circuit Courts held in the State of New York, 
 where a married woman has substantially all the powers of a 
 spinster, she may sue in equity, as if she were single, at least if 
 she be a citizen of that State. 6 When a suit has been begun by 
 a married woman alone who should have sued by her next friend, 
 leave to amend by adding to the title the name of a next friend 
 will always be granted. 7 
 
 § 32. Suits on behalf of Infants. — The equity rules provide that 
 "all infants and other persons so incapable may sue by their 
 guardians, if any, or by their prochein ami ; subject, however, to 
 such orders as the court may direct for the protection of infants 
 and other persons." l It has never been decided whether this 
 changes the former practice, which was as follows : An infant 
 could only sue by his next friend, 2 who might be any person that 
 would undertake the suit in his behalf, subject, however, to the 
 costs and the censure of the court, if it were improperly brought. 3 
 The next friend might, at any time, be removed by the court 
 either summarily or after a reference, if it seemed for the best in- 
 terest of the infant to appoint another. 4 It was doubtful whether 
 insolvency and consequent inability to respond for costs was, in 
 itself, a ground for the next friend's removal. 5 That might, how- 
 ever, be a reason for an order directing him to give security for 
 costs. 6 The court might, at any time, order a reference to a 
 
 4 Sigel v. Phelps, 7 Sim. 239 ; Wake v. § 32. i Rule 87. 
 
 Parker, 2 Keen, 70 ; Story's Eq. PI. § 63. 2 Rule 87; Story's Eq. PI. § 57; 
 
 5 Mr. Justice McLean in Bein v. Heath, Dudgeon v. Watson, 23 Fed. R. 161; 
 6 How. 228, 240. See Douglas v. Butler, Brad well v. Weeks, 1 J. Ch. (N. Y.) 325. 
 6 Fed. R. 228. 3 Campbell v. Campbell, 2 M. & C. 25, 
 
 6 Lorillard v. Standard Oil Co., 2 Fed. at page 30 ; Sale v. Sale, 1 Beav. 586 ; 
 R. 902. But see Taylor v. Holmes, 14 Starten v. Bartholomew, 6 Beav. 143. 
 Fed. R. 499, 514 ; United States v. Pratt 4 Nalder v. Hawkins, 2 M. & K. 243 ; 
 Coal & Coke Co., 18 Fed. R. 708 ; O'Hara Russell v. Sharpe, 1 Jac. & W. 482. 
 
 v. MacConnell, 93 U. S. 150. 5 Anon., 1 Ves. Jr. 409. 
 
 7 Douglas v. Butler, 6 Fed. R. 228; 6 Fulton v. Rosevelt, 1 Paige (N. Y.), 
 Taylor v. Holmes, 14 Fed. R. 499. 178, at page 180.
 
 66 PLAINTIFFS OK DEFENDANTS IN A SUIT IN EQUITY. [CHAP. II. 
 
 master, to determine the propriety of a suit ; and, if it appeared 
 to have been brought against the infant's interest, would stay pro- 
 ceedings in it or dismiss the bill, with costs to be paid by the next 
 friend." This could be done even without a reference. 8 No such 
 reference would, it seems, be ordered at the request of the next 
 friend himself, 9 unless there were another cause pending by rea- 
 son of which the infant's property was subject to the control of 
 the court, when such a reference might be ordered at the insti- 
 gation of a next friend, and he be paid his costs out of the 
 estate even if the bill were finally dismissed. 10 An application to 
 dismiss a bill as improperly filed on behalf of an infant might be 
 made by a person " as next friend for the purpose of this appli- 
 cation," u or by a defendant to the bill. 12 It seems that any 
 motion clearly for the interest of an infant complainant could 
 be made by a next friend for the purpose of the application, when 
 the next friend who filed the bill refused to move. 13 If two suits 
 were instituted on behalf of the same infant for the same purpose 
 by two next friends, the court would direct a master to inquire 
 which is most for the infant's benefit. 14 A bill might be filed by 
 a next friend on behalf of a child still in its mother's womb. 15 
 
 If an infant were made co-plaintiff with others, and it appeared 
 that it would be more for his advantage that he should be made 
 a defendant, an order to strike out his name as plaintiff, and to 
 make him a defendant, might be obtained upon motion. 16 When 
 a bill was filed in behalf of an infant, his coming of age did not 
 abate the suit ; but he might then elect whether he would pro- 
 ceed with it or not. 17 If he chose to go on with the suit, all fur- 
 ther proceedings could be carried on without any amendment or 
 the filing of a supplemental bill. 18 He was then liable for all 
 costs of the suit, as if he had filed the bill after he came of age. 19 
 Otherwise, he was not personally chargeable with costs; 20 unless 
 
 7 Da Costa v. Da Costa, 3 P. Wms. 140 ; " Calvert on Parties (2d ed.), 418. 
 Nalder v. Hawkins, 2 M. & K. 243 ; Sale 15 Luterel's Case, cited Prec. Ch. 50 ; 
 v. Sale, 1 Beav. 586. Musgrave v. Parry, 2 Vera. 710. 
 
 8 Sale v. Sale, 1 Beav. 586. 16 Tappen v. Normaii, 11 Ves. 563. 
 
 9 Jones v. Powell, 2 Mer. 141. " Guy v. Guy, 2 Beav. 460. 
 
 10 Taner v. Ivie, 2 Ves. Sen. 466. 18 Hoffman's Ch. Pr. 60 ; Daniell's 
 
 11 Guy v. Guy, 2 Beav. 460. Ch. Pr. (2d Am. ed.), 102. 
 
 12 Fox v. Suwerkrop, 1 Beav. 583. 1 9 Daniell's Ch. Pr. (2d Am. ed.) 102. 
 
 13 Furtado v. Furtado, 6 Jur. 227 ; Cox 20 Waring v. Crane, 2 Paige (N. Y.), 
 v. Wright, 9 Jur. (n. s.) 981 ; Guy v. Guy, 79. 
 
 2 Beav. 460.
 
 § 33.] SUITS ON BEHALF OF IDIOTS, LUNATICS, ETC. 67 
 
 he made a motion to dismiss the bill, which it seems could only be 
 done upon the payment of costs by himself, 21 if he could not es- 
 tablish that the bill was improperly filed by his next friend. 22 If 
 the next friend died during the infant's minority, and the latter 
 took no step in the cause after he had come of age, the defendant 
 might have the bill dismissed, but without costs, since there would 
 then be no one living who was liable to pay them. 23 
 
 § 33. Suits on behalf of Idiots, Lunatics, and Persons of Weak 
 Mind. — Idiots and lunatics sue by their committees or guardians, 
 if they have any, otherwise by next friend. 1 It is the usual prac- 
 tice to join them as plaintiffs with their representatives, though it 
 might be held unnecessary to do so when one has a committee, 
 authorized by statute to sue in his name. 2 If the interest of the 
 committee be adverse to that of his ward, the latter should sue by 
 a next friend. 3 Although the practice is unsettled, it would be 
 advisable to have the next friend appointed by the court. 4 If 
 a plaintiff become a lunatic after the institution of a suit, a sup- 
 plemental bill may be filed in the joint names of the lunatic and 
 of the committee of his estate, which will answer the same pur- 
 pose as a bill of revivor in procuring the benefit of former pro- 
 ceedings. 5 If a committee die and a new committee is appointed 
 after a suit has been instituted by the former for the benefit of 
 his idiot or lunatic, the proper way of continuing the suit is by a 
 supplemental bill filed by the idiot or lunatic and the new com- 
 mittee. 6 In England, a committee, usually before the institution 
 of a suit, prayed the sanction of the Lord Chancellor by a petition, 
 which was often referred to a master." If a person of full age is 
 neither an idiot nor a lunatic, and is yet incapable of managing 
 his affairs, the court may appoint a next friend to sue for him. 8 If 
 a bill has been filed in the name of a plaintiff, who, at the time of 
 
 21 Waring v. Crane, 2 Paige (N. Y.), 4 Compare Attorney-General v. Tiler; 
 79. 1 Dickens, 378 ; Hoffman's Ch. Pr. 61 ; 
 
 22 Waring v. Crane, 2 Paige (N. Y.), 79. Story's Eq. PI. § 64, and notes. 
 
 23 Turner v. Turner, 2 Stra. 708. 5 See Brown v. Clark, 3 Woodeson's 
 § 33. i Rule 87 ; Hoffman's Ch. Pr. 61. Lect. 378 ; Daniell's Ch. Pr. 108. 
 
 2 See Ortley v. Messere, 7 Johns. Ch. 6 In re Reynolds, Shelf, on Lun. 417 ; 
 
 (N. Y.) 139 ; Harrison v. Rowan, 4 Wash. Daniell's Ch. Pr. 108. 
 C. C. 202; Palmer, Attorney-General v. ~ In re Webb, Shelf, on Lun. 417 , 
 
 Parkhurst, 1 Chan. Cas. 112 ; Gorham v. Daniell's Ch. Pr. 108. 
 Gorham, 3 Barb. Ch. (N. Y.) 24; Hoff- 8 Wartnaby v. Wartnaby, Jac. 377; 
 
 man's Ch. Pr. 61 ; Story's Eq. PI. § 65, Owing's Case, 1 Bland (Md.), 370, at 
 
 and notes. page 373 ; Story's Eq. PI. § 66. 
 
 8 Compare Attorney-General v. Tiler, 
 1 Dick. 378 ; Hoffman's Ch. Pr 61.
 
 68 PLAINTIFFS OR DEFENDANTS IN A SUIT IN EQUITY. [CHAP. II. 
 
 filing it, is in a state of mental incapacity, it may, on motion, be 
 taken off the file. 9 If, however, after a suit has been properly 
 instituted, a plaintiff becomes imbecile, the bill cannot for that 
 reason be taken off the file. 10 
 
 § 34. Capacity of Foreign Executors, Administrators, and Receivers 
 to sue. — Foreign executors and administrators, under which term 
 are included those appointed in other States than that where the 
 court is held, cannot sue until they have taken out ancillary let- 
 ters of administration. 1 It is doubtful whether or not foreign 
 receivers can sue. 2 The better rule would seem to be, that they 
 can always sue, no matter where, unless by so doing they would 
 appropriate assets upon which domestic creditors would other- 
 wise have a prior lien, or otherwise impugn the public policy of 
 the State in which the action is brought. 3 
 
 § 35. "Who may be Defendants to a Bill in Equity. — All persons 
 may be made defendants to a bill in equity except the United 
 States ; x foreign States and sovereigns for acts done in a political 
 capacity ; 2 " one of the United States by citizens of another 
 State, or by citizens or subjects of any Foreign State ; " 3 receiv- 
 ers appointed by State courts without the leave of such courts ; * 
 and foreign executors and administrators, 5 unless they have 
 assets within the jurisdiction of the court where the bill is filed. 6 
 Whether a suit can be brought against the President of the 
 United States is undecided. 7 
 
 § 36. The United States as a Defendant. — The United States 
 may waive its exemption from suit by statute, 1 but not by the 
 
 9 Wartnaby v. Wartnaby, Jac. 377 ; 2 Duke of Brunswick v. King of Han- 
 Story's Eq. PI. § 66. over, 6 Beav. 1 ; Hullett v. King of Spain, 
 
 w Wartnaby v. Wartnaby, Jac. 377. 2 Bligh N. R. 31. 
 
 §34. 1 Fenwick v. Sears, 1 Cranch, 259; 3 Eleventh Amendment to Constitu- 
 
 Dixon v. Ramsay, 3 Cranch, 319 ; Doe v. tion. 
 
 McFarland, 9 Cranch, 151; Kerr v. 4 Barton v. Barbour, 104 U. S. 126; 
 
 Moon, 9 Wheat. 565 ; Mason v. Hartford, Thompson v. Scott, 4 Dill. 508 ; Express 
 
 Providence, & Fishkill R. R. Co., 19 Fed. Company v. Railroad Company, 99 U. S. 
 
 R. 53. 191. 
 
 2 Booth v. Clark, 17 How. 322 ; Brig- 5 Vaughn v. Northrup, 15 Pet. 1 ; 
 ham v. Luddington, 12 Blatchf. 237 ; Story's Eq. PI. § 179. 
 
 Olney v. Tanner, 10 Fed. R. 101; Hazard 6 Sandilands v. Innes, 3 Simons, 263; 
 
 v. Durant, 19 Fed. R. 471, 476. McNamara v. Dwyer, 7 Paige (N. Y.), 
 
 3 Ex parte Norwood, 3 Biss. 504; 239; Campbell v. Tousey, 7 Cow. (N. Y.) 
 Hunt ». Jackson, 5 Blatchf. 349; Cuy- 64. 
 
 kendall v. Miles, 10 F'ed. R. 342 ; Hurd 7 See Mississippi v. Johnson, 4 Wall. 
 
 v. Elizabeth, 41 N. J. Law (12 Vroom) 1. 475. 
 
 § 35. i Carr v. United States, 98 U. S. § 36. * United States v. Clarke, 8 
 
 433. Pet. 436 ; The Siren, 7 Wall. 152.
 
 § 36.] THE UNITED STATES AS A DEFENDANT. 69 
 
 act of any of its officers. 2 When, however, the United States 
 institute a suit, it waives its exemption so far as to allow a pres- 
 entation by the defendant of any set-off, legal and equitable, to 
 the extent of the demand made or property claimed ; and when 
 it proceeds in rem, it opens to consideration all claims and equities 
 in regard to the property libelled. 3 It has been held that eject- 
 ment will lie against public officers holding land for governmental 
 purposes in the name of the United States ; 4 but it was intimated 
 that an injunction will not be granted to enjoin an officer of the 
 United States from infringing a patent while acting in its service, 
 and that the remedy of the patentee, if it exists at all, is in the 
 Court of Claims. 5 A statute passed in 1887 provides that in 
 " all claims founded upon the Constitution of the United States 
 or any law of Congress, except for pensions, or upon any regula- 
 tion of an executive department, or upon any contract, express 
 or implied, with the government of the United States, or for 
 damages, liquidated or unliquidated, in cases not sounding in 
 tort, in respect of which claims the party would be entitled to 
 redress against the United States either in a court of law, equity, 
 or admiralty if the United States were suable, 6 ... the District 
 Courts of the United States shall have concurrent jurisdiction 
 with the Court of Claims as to all matters, 7 where the amount of 
 the claim does not exceed one thousand dollars ; and the Circuit 
 Courts of the United States shall have such concurrent jurisdic- 
 tion in all cases where the amount of such claim exceeds one 
 thousand dollars, and does not exceed ten thousand dollars. All 
 cases brought and tried under the provisions of this Act shall be 
 tried by the court without a jury, 8 . . . provided, however, that 
 nothing in this section shall be construed as giving to either of 
 the courts herein mentioned, jurisdiction to hear and determine 
 claims growing out of the late civil war, and commonly known 
 as ' war claims,' or to hear and determine other claims, which have 
 heretofore been rejected, or reported on adversely by any court, 
 
 2 Carr v. United States, 98 U. S. 433. 5 James v. Campbell, 104 U. S. 356, 
 
 8 Mr. Justice Field in The Siren, 7 359; Hollister v. Benedict Manuf. Co., 
 
 Wall. 152, 154. A more liberal rule 113 U. S. 59, 67. 
 
 against the government is suggested in 6 Act of March 3, 1887, 24 St. at L. 
 
 Fifth National Bank v. Long, 7 Biss. ch. 359, § 1, p. 605. 
 
 502 ; Elliot v. Van Voorst, 3 Wall. Jr., 7 Act of March 3, 1887, 24 St. at L. 
 
 299; Briggs v. The Light Boats, 11 ch. 359, § 2, p. 505. 
 
 Allen (Mass.), 157. 8 Act of March 3, 1887, 24 St. at L. 
 
 * United States v. Lee, 106 U. S. 196. ch. 359, § 1, p. 505.
 
 70 PLAINTIFFS OR DEFENDANTS IN A SUIT IN EQUITY. [CHAP. II. 
 
 department, or commission authorized to hear or determine the 
 same." ,J The same courts are similarly given jurisdiction over 
 "all set-offs, counter-claims, claims for damages, whether liquid- 
 ated or unliquidated, or other demands whatsoever on the part 
 of the government of the United States against any claimant 
 against the government," in such courts. 10 The same act reg- 
 ulates the practice in such suits in the circuit and district 
 courts as follows : The plaintiff must file a petition duly veri- 
 fied with the clerk of the respective courts having jurisdiction 
 of the case, and in the district where the plaintiff resides. Such 
 petition shall set forth the full name and residence of the plain- 
 tiff, the nature of his claim, and a succinct statement of the facts 
 upon which the claim is based, the money or any other thing 
 claimed, or the damages sought to be recovered, and must pray 
 the court for a judgment or decree based upon the facts and the 
 law. 11 The plaintiff must cause a copy of his petition, after 
 filino- the same, to be served upon the district attorney of the 
 United States in the district wherein suit is brought, and must 
 mail another copy by registered letter to the Attorney-General 
 of the United States ; and must thereupon file with the clerk of 
 the court wherein the suit is instituted, an affidavit of such ser- 
 vice and mailing. 12 The United States appears by the district 
 attorney, and is allowed sixty days, or as much more time as the 
 court may in its discretion allow, within which to file a plea, 
 answer, or demurrer ; " and to file a notice of any counter-claim, 
 set-off, claim for damages, or other demand or defence whatso- 
 ever, of the government in the premises : provided, that should 
 the district attorney neglect or refuse to file the plea, answer, 
 demurrer, or defence, as required, the plaintiff may proceed with 
 the case under such rules as the court may adopt in the prem- 
 ises." But the plaintiff cannot have a judgment or decree in his 
 favor unless he establishes the same by proof, satisfactory to the 
 court. 13 In the Court of Claims the claimant must " in all cases 
 fully set forth in his petition the claim, the action thereon in 
 Congress, or by any of the departments, if such action has been 
 had ; what persons are owners thereof or interested therein ; 
 when and upon what consideration such persons became so in- 
 
 9 24 St. at L. ch. 359, § 1, p. 505. 12 24 St. at L. ch. 359, § 6, p. 506. 
 
 i° 24 St. at L. ch. 359, § 1, p. 505. 13 24 St. at L. ch. 359, § 6, p. 506. 
 
 ii 24 St. at L. ch. 359, § 5, p. 506.
 
 § 37.] LIABILITY OF STATES TO SUITS BY PRIVATE PERSONS. 71 
 
 terested ; that no assignment or transfer of said claim, or of any 
 part thereof, or interest therein, has been made, except as stated 
 in the petition; that said claimant is justly entitled to the 
 amount therein claimed from the United States, after allowing 
 all just credits and off-sets ; that the claimant and, where the 
 claim has been assigned, the original and every prior owner 
 thereof, if a citizen, has at all times borne true allegiance to the 
 government of the United States, and, whether a citizen or not, 
 has not in any way voluntarily aided, abetted, or given encour- 
 agement to rebellion against the said government; and that he 
 believes the facts as stated in said petition to be true. And the 
 said petition shall be verified by the affidavit of the claimant, his 
 agent or attorney." 14 It is the duty of the court, acting under 
 the Act of 1887, to cause a written opinion to be filed in the 
 cause, " setting forth the specific findings by the court of the 
 facts therein, and the conclusions of the court upon all questions 
 of law involved in the case, and to render judgment thereon. If 
 the suit be in equity or admiralty, the court shall proceed with 
 the same according to the rules of such courts." 15 If the United 
 States puts in issue the right of the plaintiff to recover, the 
 court may in its discretion allow costs to the prevailing party, 
 which, however, cannot exceed what is actually incurred for 
 witnesses, " and for summoning the same, and fees paid to the 
 clerk of the court." 16 From the date of final judgment or decree 
 against the government interest is allowed " to be computed 
 thereon, at the rate of four per centum per annum, until the 
 time where an appropriation is made for the payment of the 
 judgment or decree." 17 An appeal or writ of error must be 
 taken, if at all, by the district attorney, at the direction of the 
 Attorney-General, within six months after the judgment or de- 
 cree. 18 Otherwise, the practice in all courts in suits brought 
 under this statute is similar to that in other suits, with " such 
 additions and modifications as said courts may adopt." 19 
 
 § 37. Liability of States to Suits by Private Persons. — Under 
 the Constitution of the United States as originally adopted, it 
 was provided that the judicial power of the United States should 
 extend to controversies " between a State and citizens of another 
 
 M U. S. R. S. § 1072. " 24 St. at L. ch. 350, § 10, p. 507. 
 
 15 24 St. at L. ch. 359, § 7, p. 506. 18 24 St. at L. ch. 359, § 10, p. 507. 
 
 16 24 St. at L. ch. 359, § 15, p. 508. 19 24 St. at L. ch. 359, § 4, p. 506.
 
 72 PLAINTIFFS OK DEFENDANTS IN A SUIT IN EQUITY. [CHAP. II. 
 
 State." 1 This was held to subject a State to liability to an action 
 by a citizen of another State. 2 This decision was opposed to the 
 views of Marshall and others, as expressed in the conventions 
 which ratified the Constitution ; 3 and was repugnant to the feel- 
 ings of the people. Consequently, the Eleventh Amendment 
 was adopted. This enacted that " the Judicial Power of the 
 United States shall not be construed to extend to any suit in 
 law or equity, commenced or prosecuted against one of the 
 United States by citizens of another State, or by citizens or sub- 
 jects of any Foreign State." It has effectually prevented the 
 successful prosecution by a private individual of a suit against a 
 State as a party defendant. Cases have, however, often arisen, 
 where, although a State was not a formal party, yet it had rights 
 which it claimed would be affected by the determination of a 
 suit before the court. To accurately determine the jurisdiction 
 of the Federal courts in these cases has been a very difficult and 
 delicate matter ; and the questions which thus constantly arise 
 are hard to answer. The fact that a State is not named as a 
 party to the record does not of itself remove a case from the 
 terms of the Eleventh Amendment. 4 Whether a State is an 
 actual party in the sense of the prohibition must be determined 
 by a consideration of the nature of the case as presented by 
 the whole record. 5 The subject was recently discussed by Mr. 
 Justice Miller with the apparent approval of a majority of the 
 Supreme Court : " It may be accepted as a point of departure 
 unquestioned, that neither a State nor the United States can be 
 sued as defendant in any court in this country without their con- 
 sent, except in the limited class of cases in which a State may 
 be made a part} 7 in the Supreme Court of the United States, by 
 virtue of the original jurisdiction conferred on this court by the 
 Constitution. This principle is conceded in all the cases ; and 
 whenever it can be clearly seen that the State is an indispen- 
 sable party to enable the court, according to the rules which 
 govern its procedure, to grant the relief sought, it will refuse to 
 take jurisdiction. But in the desire to do that justice, which in 
 many cases the courts can see will be defeated by an unwar- 
 
 § 37. i Art. III. Sec. 2. 109 U. S. 446; Hagood v. Southern, 117 
 
 2 Chisholra v. Georgia, 2 Dall. 419. U. S. 52 ; In re Ayers, 123 U. S. 443. 
 
 3 See Elliott's Debates. 5 Poindexter v. Greenhow, 114 U. S. 
 * Elliott v. Wiltz, 107 U. S. 711 ; Cun- 270, 287 ; In re Ayers, 123 D. S. 443, 
 
 ningham v. Macon & Brunswick R. R. Co., 492.
 
 § 37.] LIABILITY OF STATES TO SUITS BY PRIVATE PERSONS. 73 
 
 ranted extension of this principle, they have in some instances 
 gone a long way in holding the State not to be a necessary party, 
 though some interest of hers may be more or less affected by the 
 decision. In many of these cases the action of the court has 
 been based upon principles whose soundness cannot be disputed. 
 A reference to a few of them may enlighten us in regard to the 
 case now under consideration. 1. It has been held in a class 
 of cases, where property of the State, or property in which the 
 State has an interest, comes before the court and under its con- 
 trol, in the regular course of judicial administration, without 
 being forcibly taken from the possession of the government, the 
 court will proceed to discharge its duty in regard to that prop- 
 erty, and the State, if it choose to come in as plaintiff, as in prize 
 cases, or to intervene in other cases where she may have a lien 
 or other claim on the property, will be permitted to do so, but 
 subject to the rule that her rights will receive the same con- 
 sideration as any other party interested in the matter, and be 
 subjected in like manner to the judgment of the court. 6 . . . 
 2. Another class of cases is where an individual is sued in tort 
 for some act injurious to another in regard to person or property, 
 to which his defence is that he has acted under the orders of the 
 government. In these cases he is not sued as, or because he is, 
 the officer of the government, but as an individual, and the court 
 is not ousted of jurisdiction because he asserts authority as such 
 officer. To make out his defence he must show that his authority 
 was sufficient in law to protect him. 7 ... 3. A third class, which 
 has given rise to more controversy, is where the law has imposed 
 upon an officer of the government a well-defined duty in regard 
 to a specific matter, not affecting the general powers or functions 
 of the government, but in the performance of which one or more 
 individuals have a distinct interest capable of enforcement by 
 judicial process. Of this class are writs of mandamus to public 
 officers. 8 . . . But in all such cases, from the nature of the rem- 
 
 6 Cunningham v. Macon & Brunswick 9 Cranch, 11 ; Wilcox v Jackson, 13 Pet 
 R, R. Co., 109 U. S. 446, 451, 452 ; cit- 498 ; Brown v. Huger, 21 How. 305 ; 
 ing on this point The Siren, 7 Wall. 152, Grisar v. McDowell, 6 Wall. 363 ; United 
 157; The Davis, 10 Wall. 15, 20; Clark States v. Lee, 106 U. S. 196; Virginia 
 v. Barnard, 108 U. S. 436. Coupon Cases, 114 U. S. 269. 
 
 7 Cunningham v. Macon & Brunswick 8 Cunningham v. Macon & Brunswick 
 R. R. Co., 109 U. S. 446, 452; citing R. R. Co., 109 U S. 446, 452, 453; citing 
 Mitchell v. Harmony, 13 How. 115 ; Bates Marbury v. Madison, 1 Cranch, 137 ; Ken- 
 v. Clark, 95 U. S. 204 ; Meigs v. McClung, dall v. Stokes, 3 How. 87 ; United States
 
 74 PLAINTIFFS OR DEFENDANTS IN A SUIT IN EQUITY. [CHAP. II. 
 
 edy of mandamus, the duty to be performed must be merely 
 ministerial, and must involve no element of discretion to be 
 exercised by the officer. It has, however, been much insisted on 
 that in this class of cases, where it shall be found necessary to 
 enforce the rights of the individual, a court of chancery may, by 
 a maudatory decree or by an injunction, compel the performance 
 of the appropriate duty, or enjoin the officer from doing that 
 which is inconsistent with that duty and with plaintiff's rights 
 in the premises. Perhaps the strongest assertion of this doctrine 
 is found in the case of Davis v. Gray, 16 Wall. 203. In that 
 case, the State of Texas, having made a grant of the alternate 
 sections of land along which a railroad should thereafter be 
 located, and the railroad company having surveyed the land at 
 its own expense and located its road through it, the commis- 
 sioner of the State land office and the governor of the State 
 were, in violation of the rights of the company, selling and 
 delivering patents for the sections to which the company had 
 an undoubted vested right. The circuit court enjoined them 
 from doing this by its decree, which was affirmed in this court. 9 
 . . . But it is clear that in enjoining the governor of the State in 
 the peformance of one of his executive functions, the case goes 
 to the verge of sound doctrine, if not beyond it, and that the 
 principle should be extended no further. Nor was there in that 
 case any affirmative relief granted by ordering the governor and 
 land commissioner to perform any act towards perfecting the 
 title of the company. The case of The Board of Liquidation v. 
 Me Comb, 92 U. S. 531, is to the same effect. The board of 
 liquidation was charged by the statute of Louisiana with certain 
 duties in regard to issuing new bonds of the State in place of 
 old ones which might be surrendered for exchange by the hold- 
 ers of the latter. The amount of new bonds to be issued was 
 limited by a constitutional provision. McComb, the owner of 
 some of the new bonds already issued, filed his bill to restrain 
 the board from issuing that class of bonds in exchange for a 
 class of indebtedness not included within the purview of the 
 statute, on the ground that his own bonds would thereby be 
 rendered less valuable. This court affirmed the decree of the 
 
 v. Schurz, 102 U. S. 378 ; United States 9 Cunningham v. Macon & Brunswick 
 v. Boutwell, 17 Wall. 604. See Rolston v. R. R. Co., 109 U. S. 446, 453. 
 Missouri Fund Commissioners, 120 U. S. 
 390,411.
 
 § 37.] LIABILITY OF STATES TO SUITS BY PRIVATE PERSONS. 75 
 
 circuit court enjoining the board from exceeding its power in 
 taking up by the new issue a class of State indebtedness not 
 within the provisions of the law on that subject. In the opinion 
 in that case the language used by Mr. Justice Bradley well and 
 truly thus expresses the rule and its limitations : ' The ob- 
 jections to proceeding against State officers by mandamus or 
 injunction are, first, that it is in effect proceeding against the State 
 itself ; and, second, that it interferes with the official discretion 
 vested in the officers. It is conceded that neither of these can 
 be done. A State, without its consent, cannot be sued as an 
 individual ; and a court cannot substitute its own discretion for 
 that of executive officers, in matters belonging to the proper 
 jurisdiction of the latter. But it has been settled that where a 
 plain official duty requiring no exercise of discretion is to be 
 performed, and performance is refused, any person who will sus- 
 tain a personal injury by such refusal may have a mandamus to 
 compel performance ; and when such duty is threatened to be 
 violated by some official act, any person who will sustain per- 
 sonal injury thereby, for which adequate compensation cannot 
 be had at law, may have an injunction to prevent it.' It is 
 believed that this is as far as the court has gone in granting 
 relief in this class of cases. The case of Osborne v. Bank of 
 the United States, 9 Wheat. 738, often referred to, was decided 
 upon this principle, and goes no further ; for, in that case, a 
 preliminary injunction of the court forbidding a State officer 
 from placing the money of the bank, which he had seized, in the 
 treasury of the State, having been disregarded, the final decree 
 corrected this violation of the injunction, by requiring the res- 
 toration of the money thus removed. See Louisiana v. Jumel, 
 107 U. S. 711. On the other hand, in the cases of Louisiana v. 
 Jumel, and Elliott v. Wiltz, 107 U. S. 711, decided at the last 
 term, very ably argued and very fully considered, the court 
 declined to go any further. In the first of these cases the owners 
 of the new bonds issued by the board of liquidation mentioned 
 in McComb's case, above cited, brought the bill in equity in the 
 Circuit Court of the United States, to compel the auditor of 
 the State and the treasurer of the State to pay, out of the treas- 
 ury of the State, the overdue interest coupons on their bonds, 
 and to enjoin them from paying any part of the taxes collected 
 for that purpose for the ordinary expenses of the government.
 
 76 PLAINTIFFS OR DEFENDANTS IN A SUIT IN EQUITY. [CHAP. II. 
 
 They at the same time applied to the State court for a writ of 
 mandamus to the same officers, which suit was then removed 
 into the Circuit Court of the United States. In this they asked 
 that these officers be commanded to pay, out of the mone} r s in 
 the treasury, the taxes which they maintained had been assessed 
 for the purpose of paying the interest on their bonds, and to 
 pay such sums as had already been diverted from that purpose 
 to others by the officers of the government. The Circuit Court 
 refused the relief asked in such case, and this court affirmed 
 the judgment of that court. 10 . . . We think the foregoing cases 
 mark, with reasonable precision, the limit of the power of the 
 courts in cases affecting the rights of the State or Federal gov- 
 ernments in suits to which they are not voluntas parties. In 
 actions at law, of which mandamus is one, where an individual 
 is sued, as for injuries to persons or property, real or personal, or 
 in regard to a duty which he is personally bound to perform, the 
 government does not stand behind him to defend him. If he 
 has the authority of law to sustain him in what he has done, 
 like any other defendant he must show it to the court and 
 abide the result. In either case the State is not bound by the 
 judgment of the court, and generally its rights remain unaffected. 
 It is no answer for the defendant to say, I am an officer of the 
 government and acted under its authority, unless he shows 
 the sufficiency of that authority. Courts of Equity proceed upon 
 different principles in regard to parties." u 
 
 In accordance with these views, it was held in the case from 
 which the foregoing extracts are taken ; that a suit by a bond- 
 holder against the officers of a State and a railroad company 
 whose bonds he held, to have a sale of mortgaged property to 
 the Governor of Georgia, claiming to act in his official capacity, 
 declared void upon the ground " that the governor was not 
 authorized to bid in said property for the State, and the State 
 had no constitutional power to make the purchase," could not 
 be maintained. 12 A bill, the object of which is by injunction, 
 
 10 Cunningham v. Macon & Brunswick See Virginia Coupon Cases, 114 U. S. 
 R. R. Co., 109 U. S. 446, 454, 455; 269. 
 
 See also, Governor of Georgia v. Ma- n Cunningham v. Macon & Brunswick 
 
 drazo, 1 Pet. 124; Hagood v. Southern, R. R. Co., 109 U. S. 446. See, however, 
 
 117 U. S. 52. the dissenting opinion of Field and Har- 
 
 11 Cunningham v. Macon & Brims- lan,JJ. See also Hagood v. Southern, 117 
 wick R. R. Co., 109 U. S. 446, 456. U. S. 52.
 
 § 38.] LIABILITY OF A STATE TO A SUIT BY ANOTHER STATE. 77 
 
 indirectly, to compel the specific performance of a contract by 
 a State by forbidding all those acts and doings which consti- 
 tute breaches of the contract, is a suit against the State. 13 
 Such was held to be a suit to enjoin the Attorney-General, 
 auditor, and various Commonwealth attorneys of the State of 
 Virginia to enjoin them from bringing suits in the name of that 
 State and in its courts against persons who had tendered in 
 payment of taxes tax-receivable coupons of Virginia bonds. 14 
 It has been suggested in the Virginia circuit that there is no 
 prohibition in the Constitution against a suit against a State 
 by one of its own citizens to enforce a right arising under the 
 Constitution or statutes of the United States. 15 It has been 
 held in the Louisiana circuit that such a suit cannot be main- 
 tained. 16 
 
 § 38. Liability of a State to a Suit by another State. — The Con- 
 stitution provides that "the judicial power shall extend ... to 
 controversies between two or more States ; . . . and between a 
 State, or the Citizens thereof and foreign States, citizens or sub- 
 jects." 1 The Eleventh Amendment has not taken away the lia- 
 bility of one of the United States to a suit by another such State 
 or a foreign State. Such jurisdiction, however, is confined to 
 controversies concerning rights affecting property ; not to those 
 merely affecting political rights. 2 It includes controversies con- 
 cerning boundaries between different States, even though the 
 complainant claim no title other than that of sovereignty and 
 jurisdiction over the lands in question. 3 For, " in this country, 
 where feudal tenures are abolished, in cases of escheat the State 
 takes the place of the feudal lord, by virtue of its sovereignty, as 
 the original and ultimate proprietor of all the lands within its 
 jurisdiction." 4 If, however, in a bill which prays relief against 
 a threatened invasion of rights purely political in their nature, a 
 
 13 In re Ayers, 123 U. S. 443, 502 ; per § 38. * Art. III. § 2. 
 Matthews, J. 2 Cherokee Nation v. Georgia, 5 Pet. 1 ; 
 
 » In re Ayers, 123 U. S. 443. Georgia v. Stanton, 6 Wall. 50 ; Georgia 
 
 15 Hughes, J., in Harvey v. Common- v. Grant, 6 Wall. 241. 
 
 wealth of Virginia, 20 Fed. K. 411, and 3 Rhode Island v. Massachusetts, 12 
 
 note, p. 417. But see the language of Pet. 657 ; Missouri v. Iowa, 7 How. 660 ; 
 
 the minority of the Supreme Court in Florida v. Georgia, 17 How. 478 ; Ala- 
 
 the Virginia Coupon Cases, 114 U. S. bama v. Georgia, 23 How. 505 ; Virginia 
 
 269, 337-338. v. West Virginia, 11 Wall. 39. 
 
 16 Hans v. Louisiana, 24 Fed. P. 55 ; « Georgia v. Stanton, 6 Wall. 50, 73. 
 per Billings, J.
 
 78 PLAINTIFFS OE DEFENDANTS IN A SUIT IN EQUITY. [CHAP. II. 
 
 threatened injury to property be stated " only by way of showing 
 one of the grievances resulting from the threatened destruction 
 of the State, and in aggravation of it, not as a specific ground of 
 relief ; " and " this matter of property is neither stated as an 
 independent ground, nor is it noticed at all in the prayers for 
 relief; " the bill will be dismissed. 5 A suit cannot be maintained 
 when brought by one State against another to enforce the pay- 
 ment by the latter of its bonds originally held by citizens of the 
 former State, and assigned by them to it solely for the purpose of 
 collection. 6 A tribe of Indians domiciled within the borders of 
 the United States does not constitute a foreign State within the 
 meaning of the Constitution. 7 
 
 § 39. Suits against infants. — An infant when sued should be 
 provided by the court with a guardian ad litem. 1 For an omis- 
 sion to appoint a guardian ad litem, a decree against an infant 
 will be reversed upon appeal. 2 An application for the ap- 
 pointment of a guardian ad litem for an infant should be made 
 by petition, which, if the appointment of a particular person is 
 desired, should state his name and his consent to act as such. 3 
 The court will usually appoint the infant's general guardian or 
 " the nearest relative not concerned, in point of interest, in the 
 matter in question ; " 4 but the choice of the guardian rests in the 
 sound discretion of the court, and only in an extraordinary case 
 would a decree be reversed for an error in this respect. 5 The 
 interests of an infant are guarded jealously by the court, which 
 will not hold him bound by any admission made by him or in his 
 behalf, whether in the pleadings, 6 or otherwise. 7 The guardian 
 ad litem is responsible for the propriety of the defense. 8 He must 
 pay costs for scandal. 9 And he may be removed by the court at 
 any time. 10 This may be done if he is unable or unwilling to pay 
 
 5 Georgia v. Stanton, 6 Wall. 50, 77. 5 Bank of the United States v. Kitchie, 
 
 6 New Hampshire v. Louisiana, 108 8 Pet. 128, 144. 
 
 XJ, s. 76. 6 Bank of the United States v. Ritchie, 
 
 7 Cherokee Nations Georgia, 5 Pet. 1. 8 Pet. 128, 144, 145; Walton v. Coulson, 
 § 39. 1 Rule 87 ; Bank of the United 1 McLean, 125; s. c. Coulson v. Walton, 
 
 States v. Ritchie, 8 Pet. 128, 144. 9 Pet. 62, 84 ; Hawkins v. Luscombe, 
 
 2 O'Hara v. MacConnell, 93 U. S. 2 Swanst. 375, 390; Savage v. Carroll, 1 
 150. Ball & B. 553. 
 
 3 Rhinelander v. Sanford, 3 Day (2d 7 Legard v. Sheffield, 2 Atk. 377. 
 Circuit, Conn.), 279. 8 Knickerbacker v. De Freest, 2 
 
 « Bank of the United States v. Ritchie, Paige (N. Y.), 304. 
 8 Pet. 128, 144; Story's Eq. PI. §70; 9 Daniell's Ch. Pr. (2d Am. ed.) 204. 
 Calvert on Parties, Book III. ch. xxxi. 10 Russell v. Sharpe, 1 Jac. & W. 482.
 
 § 40.] SUITS AGAINST IDIOTS, LUNATICS, ETC. 79 
 
 the expenses of the defense. 11 If no person of substance is wil- 
 ling to serve for the infants, the court " might suspend further 
 proceedings until it could send a next friend or guardian ad litem 
 to the State courts having jurisdiction of their person and prop- 
 erty, to secure such guardianship as would protect them." 12 
 Infants may defend in forma pauperis ; but, except in very ex- 
 traordinary circumstances, their expenses will not be advanced 
 out of a fund in the hands of a receiver. 13 A guardian ad litem 
 may recoup his expenses from the infant's property. 14 Accord- 
 ing to the English practice, an appearance could be entered for 
 an infant before a guardian ad litem had been appointed. 15 
 
 § 40. Suits against Idiots, Lunatics, and Persons of Weak Mind. — 
 Idiots and lunatics defend by guardians ad litem, appointed for 
 them by the court. 1 A committee will usually be appointed 
 guardian ad litem of the person in his charge ; 2 unless his in- 
 terest be opposed to that of the idiot or lunatic, 3 or perhaps if he 
 refuse to answer or defend. 4 The guardian ad litem is usually 
 joined with the idiot or lunatic as a co-defendant. 5 It was held 
 by Chancellor Kent, that in New York the committee appointed 
 in accordance with statute, and not the idiot or lunatic, is the 
 proper party to the bill ; 6 but the rule in the Federal courts 
 seems to be otherwise. 7 " A person reduced by age or infirmity 
 to a second infancy may defend by guardian." 8 It is said that 
 the answer of a superannuated person, put in by guardian, may be 
 read against him as an answer of one of full age put in in per- 
 son ; and that the difference in this respect between such answer 
 and that of an infant put in by guardian is, because an infant im- 
 proves and mends, and therefore is to have a day to show cause 
 after he comes of age ; but the other grows worse, and is to have 
 no day. 9 
 
 " Ferguson v. Dent, 15 Fed. K. 771, 8 Snell v. Hyat, 1 Dickens, 287; 
 
 772. Story's Eq. PI. § 70. 
 
 12 Ferguson v. Dent, 15 Fed. R. 771, 4 Lloyd v. , 2 Dickens, 460. 
 
 772. 6 Harrison v. Rowan, 4 Wash. C. C. 
 
 18 Ferguson v. Dent, 15 Fed. R. 771. 202. 
 
 24 Ferguson v. Dent, 15 Fed. R. 771, 6 Brasher's Executors v. Van Cort- 
 
 772. landt, 2 Johns. Ch. (N. Y.) 242. 
 
 15 Braithwaite's Pr. 322. 7 Harrison v. Rowan, 4 Wash. C. C. 
 
 § 40. 1 Rule 87 ; Harrison v. Rowan, 202, 207. 
 4 Wash. C. C. 202, 207. 8 Markle v. Markle, 4 J. Ch. 168. 
 
 2 Story's Eq. PI. § 70; Westcomb v. 9 Daniell's Ch. Pr. (2d Am. ed.) 224, 
 
 Westcomb, 1 Dickens, 233 ; Harrison v. 225 ; citing Leving v. Caverly, Prec. Ch. 
 
 Rowan, 4 Wash. C. C. 202, 207. 229.
 
 SO PLAINTIFFS OR DEFENDANTS IN A SUIT IN EQUITY. [CHAP. II. 
 
 § 41. Suits against Married Women. — In suits against a married 
 woman by a third person, her husband, if not civilly dead or per- 
 manently absent from the State, should be joined with her as a 
 co-defendant ; * except perhaps in States where she has the same 
 rights and liabilities as a spinster, 2 or when she is sued in a rep- 
 resentative capacity. 3 She, however, may answer separately from 
 her husband. 4 
 
 § 41. ! Story's Eq. PI. § 71 ; Calvert Fed. R. 228 ; United States v. Pratt Coal 
 
 on Parties, Book III. ch. xxx. ; Hulme v. & Coke Co., 18 Fed. R. 708 ; O'Hara v. 
 
 Tenant, 1 Brown, Ch. C. 16; Taylor v. MacConnell, 93 U. S. 150. 
 
 Holmes, 14 Fed. R. 498, 514. 3 Moore v. Meynell, 2 Vern. 614, note. 
 
 2 Lorillard v. Standard Oil Co., 2 Fed. * Duke of Chandos v. Talbot, 2 P. 
 
 R. 902. But see Taylor v. Holmes, 14 Wms. 372. 
 Fed. R. 499, 514; Douglas v. Butler, 6
 
 § 42.] GENEKAL KULE AS TO PARTIES. 81 
 
 CHAPTER III. 
 
 PARTIES. 
 
 § 42. General Rule as to Parties. — In ordinary cases, all per- 
 sons should be made parties to a suit in equity, who are di- 
 rectly interested in obtaining or resisting the relief prayed for 
 in the bill or granted in the decree. 1 If interested in obtaining 
 the relief prayed for, they should join as plaintiffs ; unless some 
 refuse to appear in that capacity, when the rest should make them 
 defendants. 2 This rule has been also stated by the expressions 
 that " all persons interested in the subject of the suit should be 
 before the court"; 3 and that "all persons who have in the object 
 or objects of the suit an interest or interests apparent upon the 
 record, are necessary parties." 4 
 
 " In determining who are proper parties to a suit, courts of 
 equity are guided by two leading principles. One of them is a 
 principle admitted in all courts of justice 'in this country, upon 
 questions affecting liberty, or life, or property ; namely, that no 
 proceedings shall take place with respect to the rights of any one, 
 except in his presence. Thus a decree of a court of equity binds 
 no one who is not to be regarded, according to the rules of the 
 court, either as a party, or else as one who claims under a party, 
 to the suit. The second is a principle which in this country is 
 peculiar to courts of equity ; namely, that when a decision is 
 made, it shall provide for all the rights which different persons 
 have in the matters decided. For a court of equity in all cases 
 delights to do complete justice, and not by halves ; 5 to put an 
 end to litigation, and to give decrees of such a nature that the 
 performance of them may be perfectly safe to all who obey them: 
 interest reipublicae ut sit finis litium. In this respect, there is a 
 
 § 42. 1 Calvert on Parties, Book I. 8 Sir William Grant in Wilkins v. 
 
 ch. i., and cases there cited. Fry, 1 Mer. 244, 2G2. 
 
 2 Harding v. Handy, 11 Wheat. 103; 4 Calvert on Parties (2d ed.), p. 13, 
 
 Wisner v. Barnet, 4 Wash. C. C. 631, and cases there cited. 
 042 ; Fallowes v. Williamson, 11 Ves. 313 ; 6 Knight v. Knight, 3 P. Wms. 333. 
 Calvert on Parties, Book I. ch. viii.
 
 82 PARTIES. [CHAP. III. 
 
 manifest distinction between the practice of a court of law and 
 that of a court of equity. A court of law decides some one in- 
 dividual question which is brought before it ; a court of equity 
 not merely makes a decision to that extent, but also arranges all 
 the rights which the decision immediately affects." 6 Thus when 
 a person who is charged with the payment of a sum of money is 
 surety to another, the principal must be joined as defendant to 
 the bill ; as in the case of a suit against an heir for the perform- 
 ance of a covenant by his ancestor which binds him as well as 
 the ancestor's personal estate, when the personal representative 
 must also be joined. For "the court of equity in all cases de- 
 lights to do complete justice, and not by halves : as, first, to 
 decree the heir to perform this covenant, and then to put the heir 
 upon another bill against the executor to reimburse himself out 
 of the personal assets, which, for aught appears to the contrary, 
 may be more than sufficient to answer the covenant ; and when 
 the executor and heir are both brought before the court, complete 
 justice may be done by decreeing the executor to perform this 
 covenant as far as the personal assets will extend, the rest to be 
 made good by the heir out of the real assets. And here appears 
 no difficulty or inconvenience in bringing the executor before the 
 court. On the contrary, it would prevent a multiplicity of suits, 
 which a court of equity ought to do." 7 
 
 § 43. Parties with no Interest in the Subject-Matter of the Suit. 
 — Although as a general rule no person can be made a party 
 against whom if brought to a hearing the plaintiff can have no 
 decree, 1 yet the English practice allowed strangers in certain 
 cases to be made parties for the sake of discovery, and even in 
 order to mulct them with costs. In a suit against a corpora- 
 tion, its officers, book-keeper, or members might be made parties 
 for the sake of discovery concerning matters which had come to 
 their knowledge while transacting the business of the corpora- 
 tion ; 2 but not, it seems, to obtain discovery of such as they 
 knew only through their participation in its formation. 3 Of the 
 
 6 Calvert on Parties (2d ed.), pp. 2, 3. Anon., 1 Vern. 117 ; Fenton v. Hughes, 7 
 
 7 Lord Chancellor Talbot in Knight Ves. 289; Glyn v. Soares, 1 Y. & C. 644; 
 v. Knight, 3 P. Wins. 331, 334. Many v. Beekman Iron Co., 9 Paige, 
 
 § 43. 1 Wych 17. Meal, 3 P. Wms. 310, (N. Y.), 189 , Calvert on Parties (2d ed), 
 
 311, note ; Daniell's Ch. Pr. (2d Am. ed.) pp. 92-94. 
 342. 3 McComb v. Chicago, St. Louis, & 
 
 2 Wych v. Meal, 3 P. Wins. 310 ; New Orleans R. R. Co., 7 Fed. R. 426.
 
 § 44] PERSONS NOT NECESSARY PARTIES TO A SUIT IN EQUITY. 83 
 
 rule, Lord Eldon said : " The principle upon which the rule has 
 been adopted is very singular ; it originated with Lord Talbot, 4 
 who reasoned thus upon it, that you cannot have a satisfactory 
 answer from a corporation, therefore you make the secretary a 
 party, and get from him the discovery you cannot be sure of 
 having from them ; and it is added, that the answer of the secre- 
 tary may enable you to get better information." 5 "The first 
 of these principles," continues Lord Eldon, " is extremely ques- 
 tionable, if it were now to be considered for the first time ; and as 
 to the latter, it is very singular to make a person a defendant in 
 order to enable yourself to deal better, and with more success, 
 with those whom you have a right to put upon the record ; but 
 this practice has so universally prevailed without objection that 
 it must be considered established." 6 Agents to sell, auctioneers, 
 arbitrators, and attorneys could formerly be made defendants 
 for a similar purpose in suits against their principals concerning 
 transactions with which they were connected. 7 And in a few 
 cases of fraud it has been held that persons implicated in the 
 fraud might be made parties merely to make them liable for 
 costs. 8 
 
 § 44. Persons -who on account of their Interest need not be made 
 Parties to a Suit in Equity. — No persons should be joined as par- 
 ties to a suit in equity either as co-plaintiffs or co-defendants, 
 who are not directly interested in obtaining or resisting the relief 
 prayed for in the bill, 1 or who claim the property in question 
 under inconsistent titles. 2 Thus, prior incumbrancers should not 
 be made parties to a bill for the foreclosure of a mortgage, 3 un- 
 less it prays for a receiver, 4 or seeks to obtain a sale of the entire 
 mortgaged property free from all liens, 5 or unless " there is sub- 
 stantial doubt respecting the amount of debts due prior lien cred- 
 itors," in which case " there is obvious propriety in making them 
 
 * In Wych v. Meal, 3 P. Wms. 310. 2 Calvert on Parties (2ded.), 105 ; Mar- 
 
 6 Fenton v. Hughes, 7 Ves. 287. quis Cholmondeley v. Lord Clinton, 2 Jac. 
 
 6 Fenton v. Hughes, 7 Ves. 288, 289. & W. 138 ; Saumarez v. Saumarez, 4 M. 
 
 » Fenton v. Hughes, 7 Ves. 288, 289 ; & C. 331 ; Dial v. Reynolds, 9G U. S. 
 
 Dummer v. Corporation of Chippenham, 340. 
 14 Ves. 252. 8 Hagan v. Walker, 14 How. 29, 37 ; 
 
 8 Taylour v. Rochford, 2 Ves. Sen. Jerome v. McCarter, 94 U. S. 734. 
 281 ; Smith v. Green, 37 Fed. R. 424 ; * Miltenberger v. Logansport Railway 
 
 Calvert on Parties (2d ed.), p. 96, and Co., 106 U. S. 286, 306. 
 cases cited. 6 Hagan v. Walker, 14 How. 29 ; Je- 
 
 § 44. 2 Calvert on Parties (2d ed.), 6 ; rome v. McCarter, 94 U. S. 734, 735. 
 Mare v. Malachy, 1 M. & C. 559.
 
 84 PAETIES. [CHAP. III. 
 
 parties, that the amount of the charge remaining on the land after 
 the sale may be determined, and that purchasers at the sale may 
 be advised of what they are purchasing ; " 6 or unless there are 
 other peculiar circumstances making it necessary. So, in suits 
 for specific performance, it is a general rule that none but parties 
 to the contract or their representatives are necessary parties, 7 
 unless there are other persons with such an interest in the con- 
 tract or the property agreed to be sold that their concurrence is 
 necessary to the completion of the title, or their rights would 
 be prejudiced were a decree made in their absence. 8 Nor need 
 the assignor of the whole interest in a thing in action be made a 
 party to a suit by the assignee, 9 except in the case of a suit by 
 the equitable assignee of a patent, 10 or copyright, 11 or of an as- 
 signment still executory, 12 when the assignor must be joined as 
 either plaintiff or defendant. Nor need a mortgagor who has 
 sold his equity of redemption be made a party to a foreclosure 
 suit, 13 unless relief is asked against him. 14 And, as has been said 
 before, no persons should be joined as plaintiffs 15 or defendants, 16 
 who claim the property in question under inconsistent titles. 
 For example, a mortgagee cannot maintain a bill against the 
 mortgagor for a foreclosure, which, at the same time seeks to 
 enjoin a claimant adverse to both mortgagor and mortgagee from 
 asserting his title to the mortgaged property. 17 An interest in 
 the question of law involved is not sufficient to make a person a 
 necessary or even a proper party, 18 except when a bill of peace is 
 filed. The equity rules, following the English orders in chan- 
 
 6 Mr. Justice Strong in Jerome v. Chappell v. Purday, 4 Y. & C. 485 ; Cal- 
 
 McCarter, 94 U. S. 734, at pages 735, vert on Parties (2d ed.), 315. 
 
 736. 12 Land Co. of New Mexico, v. Elkins, 
 
 » Tasker v. Small, 3 M. & C. 63, 68 ; 20 Fed. R. 545. 
 
 Calvert on Parties (2d ed.), Book III. 13 Kanawha Coal Co. v. Kanawha & 
 
 ch. xvii. Ohio Canal Co., 7 Blatchf. C. C. 391, 416. 
 
 8 Jones v. Lewis, 1 Cox Eq. 199 ; Evans But see Matcalm >:. Smith, 6 McLean, 416. 
 v. Jackson, 8 Sim. 217 ; Calvert on Par- « Ayres v. Wiswall, 112 U. S. 187. 
 ties, Book III. ch. xvii. 15 Marquis Cholmondeley v. Lord Clin- 
 
 9 Harris v. Johnston, 3 Cranch, 311; ton, 2 Jac. & W. 1, at page 135; Sau- 
 Boon v. Chiles. 8 Pet. 532 ; Robertson v. marez v. Saumarez, 4 M. & C. 331, 336. 
 Carson, 19 Wall. 94; s. c. Chase's Dec. See Parsons v. Lyman, 4 Blatchf. C. C. 
 475 ; Batesville Institute v. Kauffman, 18 432. 
 
 Wall. 151 ; Fulham v. McCarthy, 1 H. L. « j); a i v. Reynolds, 96 U. S. 340. 
 
 C. 703. » Dial v. Reynolds, 96 U. S. 340. But 
 
 10 Stimpson v. Rogers, 4 Blatchf. 333 ; see Hefner v. Northwestern Life Ins. Co., 
 
 North v. Kershaw, 4 Blatchf. 70; Pat- 123 U. S. 747. 
 
 terson v. Stapler, 7 Fed. R. 210. 18 Vallette v. "Whitewater Valley Canal 
 
 » Colburn v. Duncombe, 9 Sim. 151 ; Co., 4 McLean, 192.
 
 § 45.] WHEEE THE LAW HAS FURNISHED A REPRESENTATIVE. 85 
 
 eery, also provide that " in all cases in which the plaintiff has a 
 joint and several demand against several persons, either as prin- 
 cipals or sureties, it shall not be necessary to bring before the 
 court as parties to a suit concerning such demand, all the per- 
 sons liable thereto ; but the plaintiff may proceed against one or 
 more of the persons severally liable." 19 This rule, however, only 
 applies when the demand is both joint and several, not when it is 
 merely joint ; 20 and when one of two or more jointly and sever- 
 ally indebted is the principal debtor to whom the others are 
 sureties, he must, it seems, always be joined in a bill filed by the 
 creditor to enforce a security against either of the latter. 21 Con- 
 cerning the chancery order from which Rule fifty-one was copied, 
 Vice-Chancellor Shadwell said, that it " applied to cases where 
 several persons were liable in different characters, that is, some as 
 principals and the rest as sureties ; and then it was sufficient to 
 make one individual of each class a party ; but where there was 
 only one principal and one surety, both of them must be made 
 parties." 22 
 
 § 45. Cases where the Law has furnished a Representative. — 
 On account of the inconvenience which would be caused if the 
 general rule were enforced in all cases, there are several classes 
 of exceptions to it. 1 The first of these exists when the law has 
 furnished a representative of the interest in question. In such a 
 case, those whom he represents are not usually necessary parties 
 to the suit. 2 Thus, executors and administrators are deemed 
 sufficiently to represent all legatees, creditors, and next of kin 
 in suits brought by or against them in their representative capa- 
 city, 3 except when they are made defendants to a suit by a resid- 
 uary legatee for his share of the estate, 4 or are sued for collusion 
 with a legatee who should then be made a party, 5 or probably 
 
 19 Rule 51, copied from the 32d Order 8 Brown v. Dowthwaite, 1 Madd. 448 ; 
 
 in Chancery of August, 1841. Potter v. Gardner, 12 Wheat. 499 ; Bur- 
 
 2) Piersony. Robinson, 3 Swanst. 139 n . ton v. Smith, 4 Wash. C. C. 522; Dan- 
 
 21 Robertson v. Carson, 19 Wall. 94 ; bridge v. Washington's Executors, 2 Pet. 
 Wilson v. City Bank, 3 Sumner, 423; 370, 377; Wainwright v. Waterman, 1 
 Allan v. Houlden, 6 Beav. 148; Pinkus Ves. Jr. 313 ; Anon., 12 Mod. 622. 
 
 v. Peters, 6 Beav. 253. * Atwood v. Hawkins, Rep. temp. 
 
 22 Lloyd v. Smith, 13 Sim. 457, at Finch, 113; Faithful v. Hunt, 3 Anst. 
 pages 458, 459. 751 ; Calvert on Parties (2d ed.), 206, 
 
 § 45. i Wallworth v. Holt, 4 M. & C. 208. 
 619 ; Powell v. Wright, 7 Beav. 449. 6 Attorney-General v. Wynne, Mos. 
 
 2 Calvert on Parties (2d ed.), 22. See 126. 
 Hopkirk v. Page, 2 Brock. 20, 42.
 
 86 PARTIES. [CHAP. III. 
 
 when an executor or administrator is charged with a breach of 
 trust. So a bankrupt or insolvent debtor 6 and his creditors 7 are 
 not usually necessary parties to a suit brought by or against his 
 assignee. And by analogy to this, it has been held improper for 
 a creditor of an estate to join with its receiver in a suit concern- 
 ing it. 8 Nor need one or more surviving parties in suits by or 
 against strangers affecting the partnership property have joined 
 with them the personal representatives of their deceased asso- 
 ciate. 9 So, the English rule was that "a court of equity in many 
 cases considers the tenant in tail as having the whole estate 
 vested in him at least for the purposes of suit ; and for these 
 purposes does not look beyond the estate tail in a suit aiming by 
 the decree to bind the right to the land." 10 " Those in remain- 
 der were considered as cyphers." u " It appears that this rule 
 was originally founded upon analogy to common law. As a 
 tenant in tail might bar subsequent remainder-men, in fact, 
 might at any moment make himself master of the entire estate, 
 it was considered by the court that he might be assumed to offer 
 a satisfactory defence for all those subsequent interests. The 
 court has, however, gone one step farther, and has treated in- 
 fants as sufficient representatives of the inheritance, although 
 they are unable, by reason of infancy, to bar remainder-men. In 
 truth the court has gone to the full extent which is requisite for 
 convenience in practice." 12 It has been held that a tenant for life 
 and the contingent remainder-man in fee may represent the in- 
 heritance in a bill for specific performance, if the children of the 
 remainder-man will inherit if he does not. 13 
 
 In most cases respecting trust property, it was said by Lord 
 Eldon that the beneficiaries of the trust were necessary parties. 14 
 The expression naturally suggests the inquiry, in what cases they 
 are not to be made parties. There are some cases in which the 
 existence or enjoyment of the property is affected by the prayer of 
 the suit. There are others in which the existence of the prop- 
 erty is not affected, and the only object is to transfer it into the 
 
 6 De Wolf v. Johnson, 10 Wheat. 367, w Lord Eldon in Lloyd v. Johnes, 9 
 flt p. 384 ; Van Reimsdyk v. Kane, 1 Ves. 65. 
 
 Gall. 371 ; Calvert on Parties (2d ed.), u Lord Camden in Reynoldson v. Per- 
 
 24. kins, Ambler, 564. 
 
 7 Spragg v. Binkes, 5 Ves. 587. 12 Calvert on Parties (2d ed.), 56. 
 
 8 Doggett v. Railroad Co., 99 U. S. 72. 13 Sohier v. Williams, 1 Curt. 479. 
 
 9 Pagan v. Sparks, 2 Wash. C. C. 325. 14 Adams v. St. Leger, 1 B. & B. 182.
 
 § 45.] WHERE THE LAW HAS FURNISHED A REPRESENTATIVE. 87 
 
 hands of the trustees. 15 In the latter cases the beneficiaries of the 
 trust need not, 16 although it seems they may be made parties. 17 
 In the former, when not too numerous, their presence was always 
 required 18 before the equity rules. The rules, however, fol- 
 lowing an English chancery order, 19 provide that : " In all suits 
 concerning real estate which is vested in trustees by devise, and 
 such trustees are competent to sell and give discharges for the 
 proceeds of the sale, and for the rents and profits of the estate, 
 such trustees shall represent the persons beneficially interested 
 in the estate, or the proceeds, or the rents and profits, in the 
 same manner and to the same extent as the executors or admin- 
 istrators in suits concerning personal estate represent the per- 
 sons beneficially interested in such personal estate ; and in such 
 cases it shall not be necessary to make the persons beneficially 
 interested in such real estate, or rents and profits, parties to the 
 suit. But the court may, upon consideration of the matter 
 on the hearing, if it shall so think fit, order such persons to be 
 made parties." 20 "It seems doubtful, however," says Daniell of 
 the English order, " whether this order will apply to cases where 
 a mortgagee seeks to foreclose the equity of redemption of estates 
 which are subject to such trusts." 21 Trustees under a railroad 
 mortgage, 22 or of any other trust-deed of a similar nature secur- 
 ing the rights in real property of a large number of benefi- 
 ciaries, 23 are held, in all proceedings affecting the property which 
 they thus hold, adequately to represent the latter, who will be 
 bound by notice given, or a decree entered against them, although 
 the court may in its discretion make any of such beneficiaries a 
 party to the suit at his application. 24 It has been held, how- 
 ever, that to a bill against the heirs of a trustee to quiet the title 
 to property conveyed by the trustee to the complainant, the 
 beneficiary of the trust need not be joined as a party. 25 It has 
 
 15 Calvert on Parties (2d ed\), 277. 21 Daniell's Ch. Pr. (2d Am. ed.) 304. 
 
 16 Franco v. Franco, 3 Ves. 76 ; Carey See also Wilton v. Jones, 2 Y. & C. 244 ; 
 v. Brown, 92 U. S. 171 ; Calvert on Par- Cross v. Be Valle, 1 Wall. 1. 
 
 ties (2d ed.), 277, 278. * Shaw v. Railroad Co., 100 U. S. 605, 
 
 17 Harrison v. Rowan, 4 Wash. C. C. 611. 
 
 202. 23 Van Vechten v. Terry, 2 Johns. Ch. 
 
 i 8 Whistler v. Webb, Bunb. 63 ; Greene (N. Y.) 197 ; Kerrison v. Stewart, 93 U. S. 
 
 v. Sisson, 2 Curt. 171 ; Oliver v. Piatt, 155. 
 
 3 How. 333; s. c. 2 McLean, 208; 24 Williams v. Morgan, 111 U S. 684. 
 
 Cross v. De Valle, 1 Wall. 5. See Thomas v. Brownville, F. K. & P. 
 
 19 30th Order of August, 1841. R. R. Co., 109 U. S. 522. 
 
 20 Rule 49. 26 Gridley v. Wynant, 23 How. 500.
 
 88 PAETIES. [CHAP. III. 
 
 been held, that a corporation is so far a representative of its 
 stockholders that none of them need be joined in a suit for an 
 accounting, under a lease which provides for the payment of 
 dividends directly to its stockholders. 26 It has been held that a 
 State statute authorizing one or more officers of an unincorporated 
 association to represent the others in the courts, when suing or 
 being sued about a matter concerning their common interest, 
 will be followed by a Federal court of equitj', and the members 
 conclusively presumed to have the same citizenship as such 
 officers. 27 
 
 § 46. Suits by a Complainant on behalf of himself and others simi- 
 larly situated. — When a number of persons have a common in- 
 terest in a thing which is the subject of litigation ; and, in some 
 instances, when a number of persons have a common interest in 
 a question which is before the court for decision, one or more 
 may sue or be sued in behalf of the rest. Judge Story divides 
 the first of these divisions into two : " (1) When the question is 
 one of a common and general interest, and one or more sue or 
 defend for the benefit of the whole " ; and " (2) when the parties 
 form a voluntary association for public or private purposes, and 
 those who sue or defend may fairly be presumed to represent the 
 rights and interests of the whole." 1 But there seems to be no 
 reason for treating these two classes separately. When one or 
 more thus file a bill on behalf of themselves and others similarly 
 interested, they must state in the title of their bill that they so 
 sue, and show that the others are numerous or unknown. 2 Any 
 of the others of the class have the right to join with them in the 
 suit at any time upon payment of his share of the costs 3 and 
 counsel fees 4 which have been then paid or incurred, provided 
 they do not seek to act in hostility to the original complainants, 5 
 in which case the court may in its discretion allow them to in- 
 tervene. 6 If their joinder as plaintiffs would oust the court of 
 
 26 Pacific R. R. of Mo. v. Atlantic & 94 U. S. 248 ; Hallett v. Hallett, 2 Paige 
 
 P. R. R. Co., 20 Fed. R. 277. (N. Y.), 18 ; Leigh v. Thomas, 2 Ves. 
 
 " Fargo v. Louisville, N. A. & C. Ry. Sen. 313 ; Ransom v. Davis, 18 How. 295 ; 
 
 Co., 6 Fed. R. 787 ; Whitman v. Hubbell, Story's Eq. PI. § 99. 
 
 30 Fed. R. 81 ; Liverpool Ins. Co. v. Mas- * Central Railroad v. Pettus, 113 U. S. 
 
 sachusetts, 10 Wall. 556; and supra § 19. 116; Trustees v. Greenough, 105 U. S. 
 
 But see Chapman v. Barney, 129 U. S. 677. 527. 
 
 § 46. l Story's Eq. PI. § 97. 5 Forbes v. Memphis, El Paso, & Pacific 
 
 2 Hoe v. Wilson, 9 Wall. 501. R. R. Co., 2 Woods, 323. 
 
 8 Ogilvie v. Knox Ins. Co., 2 Black. 6 Galveston Railroad v. Cowdrey, 11 
 
 539 ; s. c. 22 How. 380 ; Ex parte Jordan, Wall. 459, 478.
 
 § 47.] ILLUSTRATIONS OF BILLS FILED BY REPRESENTATIVES. 89 
 
 jurisdiction they may be brought in as defendants. 7 Such a bill 
 may be filed even when a majority of those interested object to 
 the suit. 8 For "where a matter is necessarily injurious to the 
 common right, the majority of the persons interested can neither 
 excuse the wrong nor deprive all other parties of their remedy 
 by suit." 9 To such a bill, it is not necessary to make defendants 
 all who object to its being filed, provided that enough are 
 brought before the court to sufficiently represent their interest. 10 
 It was originally held, that no one could sue on behalf of others, 
 who claimed for himself an interest in the matter in controversy 
 distinct from that of those whom he sought to represent ; for 
 example, a mortgagee was not allowed to sue in behalf of general 
 creditors while enforcing his mortgage; 11 but recent authorities 
 seem to have changed this doctrine. 12 All on whose behalf one 
 sues must appear to have an interest in the relief prayed for by 
 him. 13 In such a suit, the bill may be dismissed at any time be- 
 fore decree by the consent of those who are joined as plaintiffs, 14 
 but not afterwards, since by the decree a right becomes vested 
 in the others. 15 The court will nearly always allow a bill filed 
 by an individual in his own right to be amended, so as to allow 
 him to sue on behalf of himself and other members of a class. 16 
 
 § 47. Illustrations of Bills filed by Representatives. — The ordi- 
 nary cases of bills filed by one person of a class on behalf of 
 others similarly situated are bills by stockholders of corpora- 
 tions; 1 by members of unincorporated associations; 2 by railroad 
 bondholders, 3 of whom one holding bonds secured by successive 
 
 7 Brown v. Pacific Mail S. S. Co., 5 674, 585 ; Jones v. Garcia del Rio, 1 T. 
 Blatchf. C. C. 625, 535. But see Stewart & R. 297. 
 
 v. Dunham, 115 U. S. 61. " Handford v. Storie, 2 Sim. & S. 196 ; 
 
 8 Bromley v. Smith, 1 Simons, 8; Tay- Hubbell v. Warren, 8 Allen (Mass.), 173. 
 lor v. Salmon, 4 Myl. & Cr. 134 ; Story's 15 Handford v. Storie, 2 Sim. & S. 196 ; 
 Eq. PI. §114. But see Jones v. Garcia del York v. White, 10 Jurist, 168; Innes v. 
 Rio, 1 Turn. & Russ. 300. Lansing, 7 Paige (N. Y.), 583. 
 
 9 Bromley v. Smith, 1 Simons, 8, 11. 16 Johnson v. Compton, 4 Simons, 47 ; 
 
 10 Clinch v. Financial Corporation, L. Lloyd v. Loaring, 6 Ves. 773 ; Daniell's 
 R. 4 Ch. App. 117 at p. 122; Story's Eq. Ch. Pr. (5th Am. Ed.) 236, note 6, and 
 PI. § 135 b. 245, and cases cited. 
 
 11 Burney v. Morgan, 1 Sim. & S. 358, § 47. 1 Bacon v. Robertson, 18 How. 
 362 ; Palmer w.Foote, 7 Paige (N.Y.), 437; 480; Wallworth v. Holt, 4 Myl. & Cr. 
 White v. Hillacre, 3 Y. & C. 597. 635 ; Taylor v. Salmon, 4 Myl. & Cr. 134 ; 
 
 vz Galveston Railroad v. Cowdrey, 11 Hichens v. Congreve, 4 Russell, 562 ; 
 
 Wall. 459 ; Mason v. Bogg, 2 Myl. & Cr. Gray v. Chaplin, 2 Sim. & S. 267 ; Crease 
 
 443 ; Story's Eq. PL § 101, and cases there v. Babcock, 10 Met. (Mass.) 632. 
 
 cited. 2 Bainbridge v. Burton, 2 Beav. 539. 
 
 13 Newton v. Earl of Egmont, 4 Simons, 8 Trustees of The Wabash & Erie
 
 90 PARTIES. [CHAP. III. 
 
 mortgages may, after the death of all the trustees, sue for a fore- 
 closure on behalf of himself and the holders of each class of the 
 bonds which he owns ; 4 and bills by creditors. 5 In a case where 
 a railroad mortgaged its property directly, without the interven- 
 tion of a trustee, to fifteen bondholders, naming them, and the 
 adequacy of the security was doubtful ; it was held that one 
 could not sue on behalf of the rest, but that all the bondholders 
 must be joined as parties to the bill. 6 Such bills may also be 
 filed by one or more legatees, 7 at least if not residuary lega- 
 tees; 8 by one of several next of kin; 9 by one of several part- 
 ners ; 10 by one of a class for the benefit of which a charity was 
 founded; 11 and by one of the crew of a privateer seeking an 
 account from a defendant who has collected their joint prize 
 money. 12 
 
 § 48. Suits against one or more of a Class. — Similarly, when 
 persons who are jointly liable are very numerous, some may be 
 sued instead of all, provided that the manner in which they are 
 sued and the fact that they are numerous are stated in the bill. 1 
 Ordinarily, the complainant selects such of the class as he chooses 
 to represent the rest. In one case, the persons thus selected were 
 a committee chosen by the rest of the class to act for them in the 
 matters complained of. 2 It is proper, however, to name all of the 
 class in the title to the bill, and then have the court select some 
 of them to be served and to defend for the rest. 3 This rule 
 applies to members of a club 4 or other unincorporated associa- 
 tion 5 when sued for the collection of its debts ; and to the stock- 
 holders of a corporation in a suit brought by a creditor after its 
 
 Canal Co. v. Beers, 2 Black, 448 ; Gal- 9 Story's Eq. PL § 105. 
 veston Railroad v. Cowdrey, 11 Wall. 10 Chancey v. May, Prec. Ch. 592; 
 
 459 ; Central Railroad v. Pettus, 113 U. S. Small v. Attwood, 1 Younge, 407. 
 116. u Smith v. Swormstedt, 16 How. 288. 
 
 4 Galveston Railroad v. Cowdrey, 11 12 Good v. Blewitt, 13 Ves. 397 ; West 
 Wall. 459, 478. v. Randall, 2 Mason, 181, 194. 
 
 5 Fink v. Patterson, 21 Fed. R. 602. § 48. 1 Story's Eq. PI. §§ 116, 117 ; Mc- 
 
 6 Railroad Company v. Orr, 18 Wall. Arthur v. Scott, 113 U. S. 340, 395. 
 
 471. 2 Railroad Company v. Howard, 7 
 
 T Bennett v. Honywood, Ambler, 708; Wall. 392. 
 
 Story's Eq. PI. § 104, and cases cited. 3 Ayres v. Carver, 17 How. 591. 
 
 8 Upon this point there is a conflict of 4 Cullen v. Duke of Queensberry, 1 
 
 authority. Compare Brown v. Ricketts, Brown Ch. 101 ; Cousins v. Smith, 13 
 
 3 J. Ch. (N. Y.) 555 ; and Davoue v. Fan- Ves. 544 ; Story's Eq. PI. § 116. 
 
 ning, 4 J. Ch. (N. Y.) 199, with Kettle v. 5 Mandeville v. Riggs, 2 Pet. 482 ; Rail- 
 
 Crary, 1 Paige (N. Y.), 417, note. See road Company v. Howard, 7 Wall. 392. 
 also Story's Eq. PI. § 89.
 
 § 49.] SUITS AGAINST REPRESENTATIVES OF A CLASS. 91 
 
 dissolution to recover the amount of its capital stock which has 
 been divided among them. 6 The equity rule upon this subject is 
 as follows : " When the parties on either side are very numerous, 
 and cannot, without manifest inconvenience and oppressive de- 
 lays in the suit, be all brought before it, the court in its discretion 
 may dispense with making all of them parties, and may proceed 
 in the suit, having sufficient parties before it to represent all the 
 adverse interests of the plaintiffs and the defendants in the suit 
 properly before it. But in such cases the decree shall be with- 
 out prejudice to the rights and claims of all the absent parties." 7 
 § 49. Suits by or against one or more as Representatives of a 
 Class claiming a Common Right. — In some instances when a 
 number of persons have a common interest in the decision of 
 a question of fact or law, though they have no common interest 
 in any property which is the subject of litigation, yet, as they 
 are said to claim under a common right, one or more of them 
 have been allowed to represent the rest as plaintiffs or defend- 
 ants in a suit to determine the disputed question. 1 Ordinarily, 
 the complainant selects such defendants as he considers proper 
 and sufficient ; but he may name all of the class in the title of 
 his bill and ask the court to select a few to defend on behalf of 
 the rest.* 2 Instances where a suit of this kind has been allowed 
 by one or more as plaintiffs in behalf of others similarly situated, 
 have usually occurred when, though the plaintiff and those rep- 
 resented by him had no common interest in property, yet he 
 sought a determination of a question affecting the enjoyment of 
 estates which, though distinct, came to him and the rest from a 
 common source. Thus, one or more tenants or parishioners may 
 sue a lord of a manor or parson to establish a right of common, 3 
 or of turbary. 4 A few defendants have been allowed to repre- 
 sent a large class, not only when all of that class had some priority 
 of estate, but also in other cases. Thus, a parson was allowed to 
 sue a few on behalf of all his parishioners to establish a disputed 
 right to tithes. 5 A lord of a manor may sue some on behalf of 
 
 6 Wood v. Dummer, 3 Mason, 315. yers v. Lord Abergavenny, 1 Atk. 285 ; 
 
 7 Rule 48. McArthur v. Scott, 113 Brown v. Vermuden, 1 Ch. Cas. 272; 
 U. S. 340, 395. Smith v. Earl Brownlow, L. R. 9 Eq. 241. 
 
 § 49. i West v. Randall, 2 Mason, 181, 4 Baker v. Rogers, Sel. Ch. Cas. 74. 
 
 195. 5 Brown v. Vermuden, 1 Ch. Cas. 272 ; 
 
 2 Ayres v. Carver, 17 How. 591. Hardcastle v. Smithson, 3 Atk. 246. 
 
 3 Anon., 1 Chancery Cases, 269; Con-
 
 92 PARTIES. [CHAP. III. 
 
 all of his tenants to establish their duty to grind at his mill or 
 his right of enclosure, 6 or to enforce a rent-charge. 7 A bill was 
 sustained when brought by those interested in contesting the 
 legality of the issue of certain certificates of indebtedness, against 
 some on behalf of all of the holders of such certificates. 8 It 
 seems that a bill can be sustained when filed by one claiming the 
 prior equitable title to a tract of land, against some on behalf of 
 all who have severally bought parcels of it since his right ac- 
 crued, with notice thereof, praying that their conveyances may 
 be set aside as in fraud of his rights. 9 " And it has long been 
 settled, that if a person has a common right against a great many 
 of the king's subjects, inasmuch as he cannot contend with all 
 the king's subjects, a court of equity will permit him to file a bill 
 against some of them, taking care to bring so many persons be- 
 fore the court that their interests shall be such as to lead to a 
 fair and honest support of the public interest ; and when a decree 
 has been obtained, then, with respect to the individuals whose 
 interest is so fully and honestly established, the court on the 
 footing of the former decree will carry the benefit of it into exe- 
 cution against other individuals who were not parties." 10 Thus, 
 a city may file such a bill to establish its right to levy a duty. 11 
 In these cases, as has been said, a decree against the defendants 
 before the court has been held in England to bind others of the 
 same class; 12 but, on account of the positive language of the 
 equity rule previously quoted, it is doubtful whether these deci- 
 sions would be followed here. 13 
 
 § 50. Omission of Defendants not -within the Jurisdiction of the 
 Court. — The second exception to the general rule is, that per- 
 sons who cannot be subjected to the jurisdiction of a court of 
 equity need not be joined as parties to a bill, provided that their 
 presence is not indispensable to a decree. "When any are ab- 
 sent from the jurisdiction who, if within it, would be necessary 
 
 6 Brown v. Vermuden, 1 Ch. Cas. 272. sex "Water Works Co., 1 Jac. & "Walk. 
 
 7 Attorney-General v. Wyburgh, 1 P. 358, 369. 
 
 Wms. 599; 8. c. 2 Eq Cas. Abr. 167; u City of London r. Perkins, 3 Bro. 
 
 Attorney-General v. Jackson, 11 Ves. 365, Pari. Cas. 602 ; Mayor of York v. Pilking- 
 
 367 ; Attorney-General v. Shelly, 1 Salk. ton, 1 Atk. 282. 
 
 162. VL Brown v. Vermuden, 1 Ch. Cas. 272 ; 
 
 8 Sheffield Water Works v. Yeomans, Lord Eldon in Weale v. West Middlesex 
 L. R. 2 Ch. App. 8. See also §§ Water Works Co., 1 Jac. & Walk. 358, 369. 
 
 9 Ayres v. Carver, 17 How. 591. 13 See McArthur v. Scott, 113 U. S. 340, 
 i° Lord Eldon in Weale v. West Middle- 395.
 
 § 50.] OMISSION OF DEFENDANTS WITHOUT THE JUKISDICTION. 93 
 
 parties defendant, their presence will ordinarily be dispensed 
 with, provided an equitable and effectual decree can be made 
 against those who have been served with process. The former 
 English practice was to charge in the bill the fact of the ab- 
 sence from the realm of any who otherwise ought to have been 
 joined as defendants, and to pray that they might be served 
 with process if they came within the jurisdiction. Under the 
 modern English system this strictness is not required, and it 
 seems to be sufficient if the excuse for not making the absent 
 parties defendant appears on the face of the bill." 1 This rule 
 of equity practice has been affirmed by statute in the United 
 States. " When there are several defendants in any suit at law or 
 in equity, and one or more of them are neither inhabitants of nor 
 found within the district in which the suit is brought, and do not 
 voluntarily appear, the court may entertain jurisdiction, and pro- 
 ceed to the trial and adjudication of the suit between the parties 
 who are properly before it, but the judgment or decree rendered 
 therein shall not conclude or prejudice other parties not regularly 
 served with process nor voluntarily appearing to answer; and 
 non-joinder of parties who are not inhabitants of, nor found 
 within the district as aforesaid, shall not constitute matter of 
 abatement or objection to the suit." 2 This statute is, however, 
 merely declaratory, and does not enlarge the power previously 
 possessed by courts of equity. 3 The power has received an 
 extension here by rule, and parties not indispensable to an 
 equitable decree may be omitted if their joinder would oust 
 the court of jurisdiction by placing persons of the same citizen- 
 ship upon different sides of a controversy. " In all cases where it 
 shall appear to the court that persons who might otherwise be 
 deemed necessary or proper parties to the suit cannot be made 
 parties by reason of their being out of the jurisdiction of the 
 court, or incapable otherwise of being made parties, or because 
 their joinder would oust the jurisdiction of the court as to the 
 parties before the court, the court may in their discretion proceed 
 in the cause without making such persons parties ; and in such 
 cases the decree shall be without prejudice to the absent parties." 4 
 
 § 50. * Judge Foster in Palmer v. Stev- 8 Shields ». Barrow, 17 How. 130, 141. 
 ens, 100 Mass. 4G1, pp. 465, 466. * Rule 47. 
 
 a U. S. R. S. § 737. See Conolly v. 
 Wells, 33 Fed. R. 205.
 
 94 PARTIES. [CHAP. III. 
 
 " If any persons, other than those named as defendants in the 
 bill, shall appear to be necessary or proper parties thereto, the 
 bill shall aver the reason why they are not made parties, by 
 showing them to be without the jurisdiction of the court, or that 
 they cannot be joined without ousting the jurisdiction of the 
 court as to other parties. And as to persons who are without 
 the jurisdiction and may properly be made parties, the bill may 
 pray that process may issue to make them parties to the bill if they 
 should come within the jurisdiction." 5 Such being the general 
 rule, it remains to be considered what parties are indispensable 
 to an equitable decree. As has been said above, a court of equity 
 will ordinarily seek to have before it as parties all persons in any 
 manner interested in the subject-matter of the litigation, in order 
 that it may make a decree which will prevent the necessity of a 
 subsequent appeal to its aid. 6 This rule, however, having been 
 established for the promotion of justice, will be modified when- 
 ever its rigid enforcement would prevent the court from doing 
 justice to a person invoking its aid. Accordingly it will proceed 
 to a decree without the presence of such parties as cannot be 
 subjected to its jurisdiction, provided it can determine the re- 
 spective rights of the parties before it without affecting those of 
 the rest. There are three classes of parties: Formal parties ; par- 
 ties necessary to a decree which completely disposes of the con- 
 troversy, so that the aid of the court need not be invoked again, 
 but whose interests are so far separable from those of the parties 
 before the court, that it can dispose of the controversy between 
 the latter without affecting the interests of the former ; and par- 
 ties with an interest in the controversy " of such a nature that a 
 final decree cannot be made without either affecting that interest, 
 or leaving the controversy in such a condition that its final deter- 
 mination may be wholly inconsistent with equity and good con- 
 science." 7 Of these the first two classes can always be omitted, 
 when they are beyond the reach of the process of the court or 
 their joinder would oust its jurisdiction. The rule upon the sub- 
 ject has been well stated by Mr. Justice Bradley. " The general 
 rule as to parties in chancery is that all ought to be made parties 
 who are interested in the controversy, in order that there may be 
 an end of litigation. But there are qualifications of this rule aris- 
 
 6 Rule 22. 7 Mr Justice Curtis in Shields v. Bar- 
 
 e § 42. row, 17 How. 130, 139.
 
 § 51.] FORMAL PARTIES. 95 
 
 ing out of public policy and the necessities of particular cases. 
 The true distinction appears to be as follows : First, when a per- 
 son will be directly affected by a decree he is an indispensable 
 party, unless the parties are too numerous to be brought before 
 the court, when the ease is subject to a special rule. Secondly, 
 when a person is interested in the controversy, but will not be 
 directly affected by a decree made in his absence, he is not an 
 indispensable party, but he should be made a party if possible, 
 and the court will not proceed to a decree without him if he can 
 be reached. Thirdly, when he is not interested in the contro- 
 versy between the immediate litigants, but has an interest in the 
 subject-matter, which may be conveniently settled in the suit, 
 and thereby prevent further litigation, he may be a party or not 
 at the option of the complainant." 8 
 
 § 51. Formal Parties -who may be omitted when without the Juris- 
 diction. — Formal parties are those with a naked legal title but 
 no equitable interest in the subject-matter of the controversy. 
 If the persons really interested are before the court, formal 
 parties can always be omitted if without the jurisdiction ; * and 
 their joinder, no matter whether as plaintiffs or defendants, can- 
 not oust the court of jurisdiction, as they are in reality upon 
 neither side of the controversy. 2 Such are, a husband against 
 whom no relief is sought, in a suit by his wife to enforce 
 the trusts of a marriage settlement ; 3 one or all of the trustees 
 of a railroad or canal mortgage not opposing the foreclosure 
 in a bondholder's foreclosure suit ; 4 trustees of prior railroad 
 mortgages in a suit for the foreclosure of a subsequent mort- 
 gage and the sale of the mortgaged property subject to their 
 liens; 5 and parties with the naked legal title having no inter- 
 est in the controversy. 6 A person against whom an injunc- 
 
 8 Williams v. Bankhead, 19 Wall. 563, 3 Wormley v. Wormley, 8 Wheat. 421 ; 
 
 671. Taylor v. Holmes, 14 Fed. R. 409. But 
 
 § 51. * Simms v. Guthrie, 9 Cranch, 19, see Watts v. Waddle, 1 McLean, 200. 
 
 25 ; Wormley v. Wormley, 8 Wheat. 421, * Pacific R. R. v. Ketchum, 101 U. S. 
 
 451 ; Boon's Heirs v. Chiles, 8 Pet. 532; 289, 299; Stewart v. Chesapeake & Ohio 
 
 Union Bank of Louisiana v. Stafford, Canal Co., 1 Fed. R. 3G1 ; Walden v. 
 
 12 How. 327 ; New Orleans Canal & Bank- Skinner, 101 U. S. 577, 588. 
 
 ing Co. v. Stafford, 12 How. 343. & Pacific R. R. v. Ketchum, 101 U. S. 
 
 2 Wormley v. Wormley, 8 Wheat. 421, 289, 298. 
 
 451; Removal Cases, 100 U. S. 457; 6 Simms v. Guthrie, 9 Cranch, 19, 25; 
 
 Pacific R. R. v. Ketchum, 101 TJ. S. 289 ; Boon's Heirs v. Chiles, 8 Pet. 532 ; Union 
 
 Walden v. Skinner, 101 U. S. 577 ; Harter Bank of Louisiana v. Stafford, 12 How. 
 
 v. Kernochan, 103 U. S. 562. 327 ; New Orleans Canal & Banking Co. v.
 
 96 PAKTIES. [CHAP. III. 
 
 tion is sought, unless he consents thereto, is never a nominal 
 party. 7 
 
 § 52. Parties whose Interest is Separable. — The second class is 
 not so easy to define ; and it is difficult to mark the limits be- 
 tween this and the third class of parties who are always indis- 
 pensable. It includes all having an interest in the controversy 
 so far separable from that of those before the court that a decree 
 can be made and enforced, which disposes of the matter in 
 dispute between the latter without affecting their rights. 1 Thus, 
 a trustee or director, beyond the jurisdiction, has been held 
 properly omitted in a suit against his colleagues on account of a 
 breach of trust. 2 For a trustee's liability is joint and several. 3 
 One of the next of kin 4 may sue an administrator and his 
 sureties ; and a legatee, 5 at least if not a residuary legatee, may 
 sue an executor to recover his share of a decedent's estate with- 
 out joining the rest of the class to which he belongs. It seems, 
 that the executor of a dead debtor need not be a party to a bill 
 brought by a creditor of the estate to obtain payment out of 
 assets in the hands of a legatee. 6 Subsequent lienors are not 
 indispensable parties to a foreclosure suit. 7 In a suit against a 
 firm by strangers, a partner beyond the jurisdiction may probably 
 be omitted if no injustice will be done him by a decree in his 
 absence. 8 It has been held that in a suit by one partner against 
 another for an account of money received by the defendant in 
 excess of his share of the firm assets, partners beyond the juris- 
 diction may be omitted if it appears that each has received his 
 full share of the joint property. 9 When one of two joint contrac- 
 
 Stafford, 12 How. 343 ; Walden v. Skinner, Wisner v. Barnet, 4 Wash. C. C. 631, 642 ; 
 
 101 U. S. 577, 588 ; Bacon v. Rives, 106 Greene v. Sisson, 2 Curtis, 171. 
 
 TJ. S. 99. 5 Dandridge v. Washington's Execu- 
 
 1 Ward v. Arredondo, 1 Paine, 410 ; tors, 2 Pet. 377. See West v. Randall, 
 Mills v. Hurd, 32 Fed. R. 127. 2 Mason, 181. 
 
 § 52 . ! Cameron v. McRoberts, 3 6 Milligan v. Milledge, 3 Cranch, 220. 
 
 Wheat. 591 ; Mallow v. Hinde, 12 Wheat. ' Brewster v. Wakefield, 22 How. 118, 
 
 193 ; Gridley v. Wynant, 23 How. 500 ; 129 ; Union Bank of Louisiana v. Stafford, 
 
 Horn v. Lockhart, 17 Wall. 570 ; Nesmith 12 Howard, 327 ; New Orleans Canal & 
 
 v. Calvert, 1 Woodb. & M. 34. Banking Co. v. Stafford, 12 How. 343 ; 
 
 2 Parsons v. Howard, 2 Woods, 1, 5 ; Howard v. Railway Co., 101 U. S. 837. 
 Heath v. Erie Ry. Co., 8 Blatchf. C. C. 8 Cowslad v. Cely, Prec. Ch. 83; Dar- 
 347 ; Hazard v. Durant, 19 Fed. R. 471, went v. Walton, 2 Atk. 510 ; Calvert on 
 476. Parties, Book III., ch. xxiii. ; Vose v. 
 
 8 Parsons v. Howard, 2 Woods, 1, 5 ; Philbrook, 3 Story C. C. 335. But contra, 
 
 Heath v. Erie Ry. Co., 8 Blatchf. 347. Parsons v. Howard, 2 Woods, 1 ; Bell v. 
 
 4 Payne v. Hook, 7 Wall. 425. See, Donohoe, 17 Fed. R. 710. 
 
 however, West v. Randall; 2 Mason, 181 ; 9 Towle v. Pierce, 12 Met. (Mass.) 329.
 
 § 52.] PAETIES WHOSE INTEREST IS SEPARABLE. 97 
 
 tors has fraudulently released his interest in the contract, he is 
 not an indispensable party to a bill filed by his associate against 
 the other party. 10 " The owners of partial interests in contracts 
 for land, acquired subsequently to their execution, are not neces- 
 sary parties to bills for their enforcement. The original parties 
 on one side are not to be mixed up in controversies between the 
 parties on the other side, in which they have no concern." n An 
 heir may file a bill for the specific performance of a contract en- 
 titling his ancestor to purchase land without bringing in the per- 
 sonal representative of his ancestor, provided that he offers him- 
 self to provide for the payment of the purchase-money. 12 Specific 
 performance of a contract for the sale of land may be enforced 
 against one of several joint tenants without joining the others with 
 him as defendants. 13 The assignor of a claim is not a necessary 
 party to a suit upon it by his assignee 14 unless the assignment be 
 executory. 15 A railway company is not an indispensable party 
 to a bill against its receiver to enforce specific performance of a 
 contract made by it. 16 The directors of a corporation are not 
 indispensable parties to a suit by a stockholder to restrain it from 
 acting in violation of his rights. 17 To a bill to restrain the direc- 
 tors of a corporation from negotiating a fraudulent sale of its 
 property, the person to whom the sale is about to be made is not 
 an indispensable party if no contract has been made with him. 18 
 To a suit by one indorser of a bill of exchange to restrain the 
 collection of a judgment for the amount of the bill against him, 
 upon the ground that the bill had been paid by another indorser, 
 the latter indorser is not a necessary party. 19 To a bill by a 
 creditor to satisfy a judgment out of land in a debtor's possession, 
 but fraudulently conveyed by him to a person beyond the juris- 
 diction of the court, the person in whose name the land stood has 
 been held not to be an indispensable party. 20 To a bill to enjoin 
 
 10 Canal Co. v. Gordon, 6 Wall. 661. 16 Express Co. v. Railroad Co., 99 
 
 11 Mr Justice Field in Willard ». Tay- U. S. 191. 
 
 loe, 8 Wall. 557, 571. But see Hoxie v. " Heath v. Erie Ry. Co., 8 Blatchf. 
 
 Carr, 1 Sumner, 173. C. C. 347. 
 
 12 Prout v. Rohy, 15 Wall. 471. 18 Abbot v. American Hard Rubber 
 18 Stephen v. Beall, 22 Wall. 329. Company, 4 Blatchford C. C. 489 ; 
 
 14 Batesville Institute v. Kauffman, 18 Wallace v. Holmes, 9 Blatchford C. 
 Wall. 151 ; Trecothick v. Austin, 4 Mason, C. 65. 
 
 16. 19 Atkins v. Dick, 14 Pet. 114. 
 
 15 Land Co. of New Mexico v. Elkins, 20 McCoy v. Rhodes, 11 How. 131, 141. 
 20 Fed. R. 545.
 
 98 PARTIES. [CHAP. HI. 
 
 the execution of a judgment of ejectment and to decree a con- 
 veyance of lands, when the plaintiffs had an equitable title, only 
 the persons whose legal title the complainants asserted were held 
 properly omitted, when no relief was prayed against them, and 
 their joinder would have ousted the court of jurisdiction. 21 It 
 has been said, that, to a bill by a private individual to enjoin the 
 maintenance of a public nuisance, neither persons jointly inter- 
 ested with him nor those jointly guilty with the defendant are 
 indispensable parties. 22 It has been suggested that the absence 
 of one person guilty of a joint fraud might not prevent the court 
 from taking jurisdiction over the others. 23 In an action by a 
 creditor of a corporation to enforce the individual liability of its 
 stockholders, or to collect unpaid assessments or subscriptions 
 from them, he cannot usually sue alone at law, but should file 
 a bill in equity in behalf of himself and the other creditors, 24 if 
 any ; and he may ordinarily make one, some, or all the stock- 
 holders parties according to his pleasure. 25 A State is not an 
 indispensable party to a bill seeking to restrain its officers from 
 levying for its benefit an illegal tax ; 23 nor, it has been held, to a 
 bill to prevent their illegal issue of land warrants for property 
 which it had agreed to convey to the plaintiff; 27 nor to a bill to 
 restrain their unlawful issue of bonds which would diminish the 
 value of bonds held by the complainant. 28 To such bills the 
 persons to whom the unlawful issue of bonds or land warrants is 
 about to be made, are not indispensable parties. 29 
 
 § 53. Parties indispensable to a Decree. — No suit, however, can 
 proceed unless the court have before it as parties all persons who 
 will be directly affected by the decree sought, or whose obedience 
 
 21 Simms v. Guthrie, 9 Cranch, 19, 25. 25 Ogilvie v. Knox Ins. Co., 22 How. 
 See also Boon's Heirs v. Chiles, 8 Pet. 380; Hatch r.Dana, 101 U.S. 205; Man- 
 532. But compare Mallow v. Hinde, 12 ufacturing Company v. Bradley, 105 U. S. 
 Wheat. 193. A border case is Elmendorf 175. 
 
 v. Taylor, 10 Wheat. 152. 26 Osborn v. Bank of the United 
 
 22 Mississippi & Missouri R. R. Co. v. States, 9 Wheat. 738 ; Dodge v. Woolsey, 
 Ward, 2 Black, 485. 18 How. 331. 
 
 23 Judge Foster in Palmer v. Stevens, V Davis ». Gray, 16 Wall. 203 ; Han- 
 100 Mass. 461, 466. See also Heath v. cock v. Walsh, 3* Woods, 351. But see 
 Erie Railway Co., 8 Blatchf. C. C. 347. Cunningham v. Macon & Brunswick R 
 But see Bell v. Donohoe, 17 Fed. R. R. Co., 109 U. S. 446, 453. 
 
 710. 28 Board of Liquidation v. McComb, 
 
 24 Hornor v. Henning, 93 U. S. 228; 92 U. S. 531. 
 
 Terry v. Little, 101 U. S. 216 ; Terrv v. 29 Davis v. Gray, 16 Wall. 203, 233. 
 Tubman, 92 U. S. 156; Pollard v. Bailey, 
 20 Wall. 526.
 
 § 53.] PAETIES INDISPENSABLE TO A DECREE. 99 
 
 is necessary to its enforcement, when it does not appear that 
 they consent thereto. 1 A person is affected by a decree when his 
 rights against, or liability to any of the parties to the suit is 
 thereby determined. If a decree in favor of the complainant 
 would cast a cloud upon another's title, that person, it seems, is 
 thereby directly affected. 2 A State is an indispensable party to 
 a bill against its officers to compel specific performance by them 
 for it of its contract for the sale of land; 3 or to establish a claim 
 to property held by its officers claiming a title in the State 
 thereto ; 4 or to enjoin its officers from commencing a suit in its 
 name. 5 The trustee of an active trust is a necessary party to a 
 suit affecting the trust estate. 6 Every party to a contract, 
 whether of sale or for another purpose, except a party who has 
 released his interest," is ordinarily a necessary party to a suit to 
 enforce it; 8 or to set it aside ; 9 or, unless its performance would 
 amount to a nuisance, 10 to enjoin a person from carrying it into 
 effect. 11 Thus, a railway company is an indispensable party to a 
 suit to enjoin another railway company from constructing a road 
 under a lease by it. 12 To a bill against the administrator with 
 the will annexed of Kosciuszko, claiming a legacy under an 
 alleged codicil to the will, foreigners claiming the assets of the 
 deceased as heirs-at-law were held necessar}' parties. 13 To a bill 
 between partners for an accounting, all the surviving partners 
 and the representatives of a deceased partner, even when alleged 
 to be insolvent, are, it seems, indispensable parties, 14 unless it can 
 
 § 53. 1 See § 55. Wirtz, 1 Wash. C. C. 417 ; Tobin v. Walk- 
 
 2 Young v. Clashing, 4 Biss. 456. inshaw, 1 McAll. 20; Bell v. Donolioe, 
 
 8 Preston v. Walsh, 10 Fed. R. 315. 17 Fed. R. 710; Florence Sewing Machine 
 
 See also Walsh v. Preston, 109 U. S. 297. Company v. Singer Manuf. Company, 4 
 
 4 Cunningham v. Macon & Brunswick Fisher's Pat. Cas. 329; s. c. 8 Blatchford 
 R. R. Co., 109 U. S. 446. C. C. 113. But see French v. Shoemaker, 
 
 5 In re Avers, 123 U. S. 443. 14 Wall. 314. 
 
 6 McRea v. Branch Bank of Alabama, 10 Mississippi & Missouri R. R. Co. v. 
 19 How. 376; O'Hara v. MacConnell, 93 Ward, 2 Black, 485. 
 
 U. S. 150; Thayer r. Life Association, 112 n Northern Indiana R R Company?;. 
 
 U. S. 717; American Bible Society v. Michigan Central R. R. Company, 15 
 
 Price, 110 U. S. 61. But see p. 63. " How. 233. But see Heriot v. Davis, 2 
 
 7 Canal Company v. Gordon, 6 Wall. Woodb. & M. 229 ; Boon's Heirs v. 
 561. Chiles, 8 Pet. 532. 
 
 8 Mallow v. Hinde, 12 Wheat. 193 ; >'-* Northern Indiana R. R. Co. ?•. Mich- 
 Shields p. Barrow, 17 How. 130. ignn Central R. R. Co., 15 How. 233. 
 
 9 Shields v Barrow, 17 How. 130; 13 Armstrong v. Lear, 8 Pet. 62. 
 Coiron v. Millaudon, 19 How. 113; Gny- 14 Bank v. Carrollton R. R., 11 Wall. 
 lonlsr Kelshaw,l Wnll. 81; Ribonv. Rail- 624; Bartle v. Coleman, 3 Cranch C. C. 
 road Companies, 16 Wall. 446 ; Lawrence v. 283 ; Gray v. Larrimore, 2 Abb. C. C. 542.
 
 100 PARTIES. [CHAP. III. 
 
 be shown that each of those omitted has received his full share 
 of the assets, and that no claim is made against him. 15 To a par- 
 tition suit all of the tenants in common are indispensable parties. 16 
 A person in possession under a claim of a title or interest in 
 property is a necessary party to a suit affecting it. 17 The mort- 
 gagor is a necessary party to a suit by the mortgagee against a 
 third person to remove a cloud upon the title. 18 To a bill to en- 
 force specific performance of a contract, providing for the sale 
 of land the title to which was in one party, and its distribution 
 between both parties to the contract, when filed, after the death 
 of each, by the personal representatives of the one as complainants, 
 against the heirs-at-law of the other as defendants, the executors 
 of the defendant's ancestor are necessary if not indispensable 
 parties defendant, and the heirs-at-law of the complainants' 
 decedent are not. 19 All a man's heirs-at-law are indispensable 
 parties to a bill by one of them to set aside a sale of his property 
 under a decree ; and to such a bill the party to the former suit 
 at whose instance the sale was made is also an indispensable 
 party. 20 All a woman's heirs have been held necessary parties 
 to a bill to set aside a marriage settlement. 21 To a bill by a 
 stockholder to set aside the foreclosure of a railroad mortgage, 
 the trustees of the mortgage foreclosed, the mortgagor, the pur- 
 chaser, and enough of the stockholders and bondholders as 
 consented to the foreclosure to represent the remainder, are 
 indispensable parties. 22 A corporation or its receiver 23 must 
 be a party to a suit to enforce a right against a third person 
 which the corporation refuses to assert. 24 The trustees and 
 county treasurer of an Iowa township are necessary parties 
 to a suit by a taxpayer to prevent the payment to their 
 holder of bonds claimed to be invalid. 25 It seems, that the 
 principal debtor, or his assignee in bankruptcy or insolvency, 
 
 15 Towle ?;. Pierce, 12 Met. (Mass.) 329. 21 McDonnell v. Eaton, 18 Fed. R. 710. 
 
 16 Barney v. Baltimore City, 6 Wall. 22 Ribon v. Railroad Companies, 16 
 280. Wall. 446. 
 
 17 Williams v. Bankhead, 19 Wall 563 ; ™ Porter v. Sabin, 36 Fed. R. 475. 
 Young v. Cushing, 4 Biss. 456. But see 24 Davenport v. Dows, 18 Wall. 626 ; 
 Ringo v. Binns, 10 Pet. 269, 281. New Jersey Central R. R. Co. v. Mills, 113 
 
 18 Bettes v. Dana, 2 Sumner, 383. U. S. 249, 256 ; Bell v. Donohoe, 17 Fed. 
 " Seymour v. Freer, 8 Wall. 202, 218. R. 710. 
 
 See Prout ». Roby, 15 Wall. 471. ^ Sully v. Drennan, 113 U. S. 287. 
 
 20 Hoe v. Wilson, 9 Wall. 501 ; Harwood Compare Harter v. Kernochan, 103 U. S. 
 r. Railroad Co., 17 Wall. 78. 562.
 
 § 53.] PAKTIES INDISPENSABLE TO A DECREE. 101 
 
 is a necessary party to a suit against a surety. 26 To a suit 
 by a creditor to enforce a lien upon property through a trust- 
 deed made for the benefit of a surety, both the trustee and his 
 beneficiary are indispensable parties, although the property is 
 in the possession of neither of them ; but if filed in a double 
 aspect, either for the complainant's individual benefit, or on be- 
 half of the other creditors of the principal debtor, a sale may be 
 ordered without having the surety or his trustee before the 
 court. 27 So, a debtor, or if a bankrupt or insolvent, his assignee, 
 is a necessary party to a creditor's suit to enforce a lien 28 or 
 levy 29 upon property in which the debtor has an interest, or to 
 collect 30 a debt due the debtor. A corporation must be joined 
 as a defendant to a bill filed by a creditor to apply to the pay- 
 ment of its indebtedness money due it from its stockholders; 31 
 and to a bill to compel a transfer upon its books of stock which 
 has been fraudulently transferred to the name of another than 
 the complainant. 32 To a bill by a legatee against the husband 
 of a residuary legatee or devisee to obtain payment of the com- 
 plainant's legacy from assets in the defendant's possession, the 
 residuary legatee herself, or, if she be dead, her personal repre- 
 sentative, is a necessary party, 33 at least when it does not appear 
 that she or her personal representative is without the jurisdiction 
 of the court. 
 
 It was held in a case, the authority of which may be doubted, 
 when it did not appear that their joinder was impossible or would 
 oust the jurisdiction, that in a suit to compel the execution of 
 a mortgage and its foreclosure, prior incumbrancers and others 
 claiming an interest in the mortgaged property were necessary 
 parties. 34 In one case where a bill was filed to stay proceedings 
 in ejectment, the court required the nominal defendant at law to 
 be joined as a co-plaintiff with the real person interested ; al- 
 though it did not appear what citizenship he had. 35 
 
 26 Robertson v. Carson, 19 Wall. 94. 31 Brigham v. Luddington, 12 Blatchf. 
 See also Russell v. Clark, 7 Cranch, 69. C. C. 237 ; First National Bank v. Smith, 
 But compare Rule 51. 6 Fed. R. 215; Dormitzer v. Illinois & 
 
 27 McRea v. Branch Bank of Alabama, St. L. Bridge Co., 6 Fed. R. 217 ; Walsh 
 19 How. 376. v. Memphis, C. & N. W. R. R. Co., 6 
 
 28 Russell v. Clark, 7 Cranch, 69 ; Rob- Fed. R. 797. 
 
 ertson v. Carson, 19 Wall. 94. But see 82 Kendig v. Dean, 97 U. S. 423. 
 
 Heriot v. Davis, 2 Woodb. & M. 229. 83 Lewis v. Darling, 16 How. 1. 
 
 29 Wilson v. City Bank, 3 Sumner, 422. 8 * Caldwell v. Taggart, 4 Pet. 190. 
 
 30 United States v. Howland, 4 Wheat. 85 Hyde v. Folger, 4 McLean, 255. 
 108.
 
 102 PARTIES. [CHAP. III. 
 
 § 54. When Numerous Interests have been created for the Pur- 
 pose of preventing the Plaintiff from obtaining Equitable Relief. — 
 When numerous interests have been created for the purpose of 
 preventing a person from obtaining equitable relief, the English 
 courts allowed the persons to whom these interests were thus 
 conveyed to be omitted from the bill, if the original owner of the 
 property thus divided were made a defendant. 1 The rule and 
 the reasons for it are thus stated by Calvert in his valuable 
 work on Parties : " If a party has divided an interest amongst a 
 number of persons for this purpose, the court, in order that the 
 contrivance may be frustrated, and the equitable relief may be 
 obtained, allows the suit to proceed in their absence. Such a 
 division is in reality a fraud ; an attempt to defeat justice by con- 
 verting the general rule of the court into an obstruction to the 
 ordinary proceedings. The court defeats the fraud by refusing 
 to enforce the general rule." 2 Lord Hardwicke said upon this 
 subject: " Where a mortgagee who has a plain redeemable interest 
 makes several conveyances upon trust, in order to entangle the 
 affair, and to render it difficult for a mortgagor or his representa- 
 tives to redeem, there it is not necessary that the plaintiff should 
 trace out all the persons who have an interest in such trust, to 
 make them parties." 3 This rule might, perhaps, be extended 
 here to a case, where an attempt had been made to defeat the 
 jurisdiction of the Federal court by a merely colorable convey- 
 ance to a person of the same citizenship as the complainant. 4 
 
 § 55. When a Person consents to the Relief sought. — A person 
 who consents to the relief sought, when it is so stated in the bill, 
 need not be joined as a defendant with the other parties inter- 
 ested, unless his presence is indispensable for their protection. 1 
 Sometimes the plaintiff is required to execute a satisfactory 
 undertaking that the party omitted will conform to the decree. 2 
 Similarly, a person who disclaims all interest in the subject-mat- 
 
 § 54. ! Calvert on Parties ( 2d ed.), Canal & Banking Co. v. Stafford, 12 
 
 Book I. ch. iv., p. 61 ; Yates v. Hambly, 2 How. 343; Leather Manufacturers' Bank 
 
 Atk. 237. See also Union Bank of Lou- v. Cooper, 120 U. S. 778, 781. 
 
 isiana v. Stafford, 12 How. 327 ; New § 55. 1 Mechanics' Bank of Alexandria 
 
 Orleans Canai & Banking Co. v. Stafford, v. Seton, 1 Pet. 299, 306 ; Calvert on Par- 
 
 12 How. 343. ties (2d ed.), Book I. ch. v. pp. 09, 84. 
 
 2 Calvert on Parties, (2d ed.) 61. 2 Calvert on Parties (2d ed.) Book I. 
 
 8 Yates v. Hambly, 2 Atk. 237, 238. ch. v., p. 69; Kirk v. Clark, Prec. in Ch. 
 
 4 See Union Bank of Louisiana v. 275 ; Harvey v. Cooke, 4 Russ. 35, 55 ; 
 
 Stafford, 12 How. 327 ; New Orleans Bawtree v. Watson, 3 M. & K. 339, 340.
 
 § 59.] RELAXATION OF RULE AS TO PARTIES IN SPECIAL CASES. 103 
 
 ter may also be omitted, unless his joinder is essential to the 
 protection of the rights of the other defendants. 3 An agreement 
 between two persons that one shall represent the other as plain- 
 tiff, when the former would otherwise have no right to the relief 
 sought, will not be sanctioned by the court. 4 
 
 § 56. When the Plaintiff -waives his Right against a Person. — 
 " Where a plaintiff," said Lord Hardwicke, " is only concerned in 
 interest, there he may waive his demand, and omit making the 
 party a defendant to his bill." 1 In accordance with this prac- 
 tice, the equity rules provide that " in suits to execute the trusts 
 of a will, it shall not be necessary to make the heir-at-law a 
 party; but the plaintiff shall be at liberty to make the heir-at- 
 law a party when he desires to have the will established against 
 him." 2 Such a waiver cannot, however, be made, unless it can 
 be without prejudice to those against whom the bill is filed. 3 
 
 § 57. "When the Interest of an absent Person is evidently very 
 small. — In England it has been held, in accordance with the 
 maxim de minimis non curat lex, that when the interest of an 
 absent person is evidently very small the court will dispense with 
 his presence in the suit. 1 This view seems to be sanctioned by 
 two decisions of the Supreme Court of the United States. 2 
 
 § 58. When the Right of Administration is in Dispute. — The 
 English rule was, that when there was a contest in the Ecclesi- 
 astical Court over the right of administration upon a decedent's 
 estate, the omission in a bill affecting that estate of an adminis- 
 trator might be excused if special circumstances were shown. 1 
 If, however, no proceeding in the Ecclesiastical Court were pend- 
 ing, one must be instituted before the bill could be filed. 2 
 
 § 59. Relaxation of Rule as to Parties in Special Cases. — The 
 rules upon the subject of parties are, however, very loose, and 
 
 3 Vattier v. Hinde, 7 Pet. 252, 258. W. 513 ; Attorney-General v. Goddard, 1 
 
 4 Rylands v. Latouche, 2 Bligh, 579. T. & R. 348, 350. See also Faulkner v. 
 § 56. i Williams v. Williams, 9 Mod. Daniel, 3 Hare, 199, 213. 
 
 299. See also Wilson v. Todd, 1 M. & C. 2 Union Bank of Louisiana v. Stafford, 
 
 42, 46; Calvert on Parties (2d ed.), 83, 12 How. 327; New Orleans Canal & 
 
 and cases cited. Banking Co. v. Stafford, 12 How. 343. 
 
 2 Rule 50, copied from the 31st Order § 58. l Plunket v. Penson, 2 Atk. 51 ; 
 in Chancery of August, 1841. Penny v. Watts, 2 Phillips, 149, 154 ; Cal- 
 
 3 Anon , 2 Eq. Cas. Abr. 1G0, pi. 6; vert on Parties (2d ed.), Book I. ch. v. 
 Story's Eq. PI. § 139. p. 70. 
 
 §57. ! Calvert on Parties (2d ed.), 2 Penny v. Watts, 2 Phillips, 149,154; 
 
 Book I. ch. v. p. 70 ; Daws v. Benn, 1 J. & Calvert on Parties (2d ed.), Book I. ch. v.
 
 104 PARTIES. [CHAP. III. 
 
 the questions arising under them are decided largely in the dis- 
 cretion of the court. 1 " The necessity for the relaxation of the 
 rule is more especially apparent in the courts of the United 
 States, where, oftentimes, the enforcement of the rule would oust 
 them of their jurisdiction, and deprive parties entitled to the 
 interposition of a court of equity of any remedy whatever." 2 A 
 court of equity adapts its decrees to the necessities of each case ; 
 and should a suit brought by a single complainant concerning a 
 matter in which others as well as himself were interested termi- 
 nate in a decree against the defendants, it is easy to do substan- 
 tial justice to all the parties in interest, and prevent a multipli- 
 city of suits, by allowing the other persons similarly situated 
 with the plaintiff, " either through a reference to a master, or by 
 some other proper proceeding, to come in and share in the benefit 
 of the litigation." 3 The discretion as to the joinder or omission 
 of parties is, however, one which, when properly raised, is subject 
 to review upon appeal. 4 An act of Congress relaxing or extending 
 the rules as to parties in a particular case is constitutional. 5 
 
 § 60. Restatement of the Rules as to Parties. — The rules upon 
 the subject may be summarily though roughly stated thus : — 
 
 I. All persons not too numerous, and whose joinder will not 
 oust the jurisdiction of the court, who have any direct interest 
 in obtaining or resisting the relief prayed for in a bill or granted 
 in a decree which so disposes of the controversy as to prevent 
 any future litigation concerning the same, must be parties to a 
 suit in equity. 1 
 
 II. No person without an interest in the controversy or its set- 
 tlement can be joined as a party except the officer or member of 
 a corporation, who may be made a defendant to a bill praying 
 relief against it, in order to compel from him a discovery of facts 
 of which he acquired knowledge in his official capacity. 2 
 
 § 59. 1 Cameron v. McRoberts, 3 3 Mr. Justice Davis in Payne v. Hook, 
 Wheat. 501 ; Elmendorf v. Taylor, 10 7 Wall. 425, 432. See s. c. as Hook v. 
 Wheat. 152, 167; Lewis v. Darling, 16 Payne, 14 Wall. 252. 
 How. 1; Barney v. Baltimore City, 6 * Caldwell v. Taggart, 4 Pet. 196; Rob- 
 Wall. 280 ; Payne v. Hook, 7 Wall. 425 ; ertson v. Carson, 19 Wall. 94 ; Hoe v. 
 Barney v. Latham, 103 U. S. 205 ; Greene Wilson, 9 Wall. 501 ; Railroad Company 
 v. Sisson, 2 Curtis, 171 ; West v. Randall, v. Orr, 18 Wall. 471. 
 2 Mason, 181 ; Parsons v. Howard, 2 8 United States v. Union Pacific R. R., 
 Woods, 1 ; Winter v. Ludlow, 3 Phila. 98 U. S 569. 
 (Pa.) 464. § 60. 1 §§ 42, 43, 50. 
 
 2 Mr. Justice Davis in Payne v. Hook, 2 § 44. 
 7 Wall. 425, 432.
 
 § 61.] OBJECTION FOR WANT OF PARTIES. 105 
 
 III. If the persons having a common interest in the subject of 
 the controversy or the question to be decided therein are numer- 
 ous, they may in certain cases be represented, as plaintiffs or 
 defendants, by others who hold the legal title in trust for them, 
 or by one or more of their number suing, or more rarely being 
 sued, in their behalf. 3 
 
 IV. Persons having a mere formal interest, or an interest so 
 far separable from that of the principal parties, that a decree 
 disposing of the controversy as between the latter can be made 
 and enforced without affecting their rights, may always be omit- 
 ted when, by reason of their residence or citizenship, not within 
 the jurisdiction of the court. 4 
 
 V. All persons who have such an interest in the controversy 
 that a decree cannot be enforced without directly affecting their 
 rights must be joined as parties ; except possibly when their 
 interest is very small, or has been created for the purpose of 
 depriving the court of jurisdiction. 5 
 
 VI. There is no need of joining as parties any against whom 
 the plaintiffs waive their rights, or who are willing to allow the 
 relief prayed for in the bill, unless their presence is necessary for 
 the protection of those who have been made defendants. 6 
 
 VII. The necessity of the joinder of parties is always in the 
 sound discretion of the court, which adapts itself to the facts of 
 each particular case. 7 
 
 § 61. Objection for Want of Parties. — An objection that there 
 is a defect of parties may be taken by demurrer, plea, or answer, 1 
 or at the hearing ; and if the absent persons are indispensable 
 parties, even for the first time upon appeal; 2 although not if a 
 decree has been made which cannot prejudice their interests. 3 
 "If a defendant shall, at the hearing of a cause, object that a suit 
 is defective for want of parties, not having by plea or answer 
 taken the objection, and therein specified by name or description 
 the parties to whom the objection applies, the court (if it shall 
 think fit) shall be at liberty to make a decree, saving the rights j 
 of absent parties." 4 The usual practice is for the court, if it con- > 
 
 i 
 
 8 §§ 46, 47, 48. manner of taking the objection, see the 
 
 4 §§ 50, 51, 52. chapters on those pleadings. 
 
 5 §§ 53, 54, 57. 2 Hoe v. Wilson, 9 Wall. 501. 
 
 6 § 55- 8 §§ 52, 53. 
 
 7 § 59. « Rule 53. 
 § 61. i For the rules regulating the
 
 106 PARTIES. [CHAP. III. 
 
 siders the objection good, to allow the cause to stand over until 
 the plaintiff shall amend his bill by bringing in the additional 
 parties needed. 5 If the omitted parties on account of their citi- 
 zenship cannot be brought in, the court may retain the bill, and 
 perhaps continue an injunction in accordance with its prayer, 
 until the complainants have had a reasonable time to litigate the 
 matters in controversy between themselves and the omitted par- 
 ties in a court of competent jurisdiction ; and if it should then 
 appear b} r the judgment of such a court that the complainants 
 have in equity a superior title to the omitted parties, proceed to 
 a determination of the rights between the parties to the bill. 6 If, 
 however, the complainant does not within a reasonable time 
 amend his bill, or if so allowed by the court, proceed against the 
 omitted parties, the court may dismiss his bill; but such dis- 
 missal must be without prejudice. 7 " Where the defendant shall, 
 by his answer, suggest that the bill is defective for want of par- 
 ties, the plaintiff shall be at liberty, within fourteen days after 
 answer filed, to set down the cause for argument upon that objec- 
 tion only ; and the purpose for which the same is so set down 
 shall be notified by an entry, to be made in the clerk's order- 
 book, in the form or to the effect following (that is to say) : ' set 
 down upon the defendant's objection for want of parties.' And 
 where the plaintiff shall not so set down his cause, but shall pro- 
 ceed therewith to a hearing, notwithstanding an objection for 
 want of parties taken by the answer, he shall not, at the hearing 
 of the cause, if the defendant's objection shall then be allowed, 
 be entitled as of course to an order for liberty to amend his bill 
 by adding parties. But the court, if it thinks fit, shall be at 
 liberty to dismiss the bill." 8 A lack of proper parties is not a 
 jurisdictional defect ; and, therefore, if pending the decision of 
 the court, upon an objection for the omission of a party whose 
 presence would oust the circuit court of jurisdiction, he dies, and 
 the defect is thereby cured, the court will retain the bill. a 
 
 § 62. Objection for Joinder of Improper Parties. — If persons are 
 improperly joined as plaintiffs, all the defendants may demur. 1 
 
 5 Hunt v. Wickliffe, 2 Pet. '201, 215. 9 Harrison v. Rowan, 4 Wash. C. C. 202, 
 
 6 Mallow v. Hinde, 12 Wheat. 193, 198, 208. 
 
 199. § 62. i Cuff v. Platell, 4 Russ. 242 ; 
 
 7 Mallow v. Hinde, 12 Wheat. 193, 199; King of Spain v. Machado, 4 Russ. 225 ; 
 Hunt v. Wickliffe, 2 Pet. 201, 215. Story's Eq. PI. § 544. 
 
 8 Rule 52.
 
 §62.] 
 
 OBJECTION FOR JOINDER OF IMPROPER PARTIES. 
 
 107 
 
 If a person is joined as a plaintiff without his consent, he may 
 on motion upon notice to all parties have his name stricken out 
 with costs to be paid by the plaintiff who has improperly brought 
 him into the suit. 2 If a person having no interest in the contro- 
 versy be improperly joined as defendant, he alone can demur. 3 
 And no notice of his demurrer need be given to the other defend- 
 ants, 4 except in special cases where it is clearly for the latter's 
 interest to retain him in the suit. If a misjoinder is apparent 
 on the face of the bill it is more prudent to demur. If such an 
 objection is not made till the hearing, the court may disregard 
 it. 5 It cannot be raised for the first time upon appeal. 6 When 
 a demurrer is sustained in favor of defendants improperly joined 
 as having no interest in the controversy, the plaintiff will always 
 be allowed to amend by striking out their names. 7 If the bill be 
 dismissed for a misjoinder of complainants and one of them appears 
 to have a good cause for equitable relief, the dismissal must be 
 without prejudice. 8 
 
 2 Calvert on Parties (2d ed.) 430; 
 Keppell v. Bailey, 2 M. & K. 517 Tit- 
 terton v. Osborne, 1 Dickens, 350 ; Wilson 
 v. Wilson, 1J. & W. 459. 
 
 3 Wliitbeck v. Edgar, 2 Barb. Ch. 
 (N. Y.) 106; Seymour v. Freer, 8 Wall. 
 202, 218 ; Buerk v. Imhaeuser, 8 Fed. R. 
 457 ; Story's Eq. PI. § 544. 
 
 * Anon., 9 Ves. 512 ; Hodson v. Ball, 
 11 Simons, 459; Calvert on Parties (2d 
 ed), 430. 
 
 5 Story v. Livingston, 13 Pet. 359; 
 Eades v. Harris, 1 Y. & C. N. R. 235 ; Raf- 
 fety v. King, 1 Keen, 601 ; Mosley v., 
 Taylor, cited in 1 Keen, 601, s. c. 2 Y. & J. 
 520 ; Calvert on Parties (2d ed.), 156 ; 
 Story's Eq. PL § 544. 
 
 6 Livingston v. Woodworth, 15 How. 
 546. 
 
 7 Tryon v. Westminster Improvement 
 Comm'rs, 6 Jurist, n. s. 1324. 
 
 8 House v. Mullen, 22 Wall. 42.
 
 108 BILLS. [CHAP. IV. 
 
 CHAPTER IV. 
 
 BILLS. 
 
 § 63. Informations. — The first proceeding in a suit in equity 
 is the preparation and filing of the first pleading. This was either 
 an information, a bill, or an information and bill. In England, 
 the attorney-general or solicitor-general could file an information 
 on behalf of the crown, or of those who either as idiots and 
 lunatics partook of its prerogative, or whose rights, as those in 
 charities, were under its particular protection. The law officers 
 of the royal consort had the same right. If the suit did not 
 immediately concern the rights of the crown, a relator, who sus- 
 tained and directed the litigation, was usually joined with the 
 officer in whose name it was filed. The main distinction between 
 an information and a bill was, that, whereas the latter was in the 
 form of a petition to the court; in the former the officer that filed 
 it stated the case by way not of petition or complaint, but of 
 information to the court of the rights which the crown claimed 
 on behalf of itself or others, and of the invasion or detention of 
 those rights for which the suit is instituted. If the relator had 
 a personal interest in the relief sought, his personal complaint 
 was joined to, and incorporated with the information given to 
 the court by the officer of the crown ; and the pleading was 
 termed an information and bill. 1 The proceedings upon an 
 information could only abate by the death or determination of 
 interest of the defendant. If, however, the information were 
 filed at the instance of one or more relators and all died, the 
 court would not allow the cause to proceed till an order had 
 been obtained giving leave to insert the name of a new relator, 
 and one had been inserted accordingly. Otherwise, proceedings 
 upon informations were substantially the same as upon bills, 
 except that great laxity of practice was permitted when infor- 
 mations were filed on behalf of charities. 2 In the courts of the 
 
 § 63. l Mitford's PI. ch. 1. a Mitford's PI. ch. 1 ; Story's Eq. PI. 
 
 §8.
 
 § 64] DEFINITION AND CLASSIFICATION OF BILLS. 109 
 
 United States, it has been held to be the proper practice for 
 the government to sue in equity in its own name by a bill simi- 
 lar to one filed by a private citizen; 3 but a pleading styled an 
 information filed on behalf of the United States, being in sub- 
 stance a bill, was sustained as such, 4 and so was one filed on 
 behalf of the United States by the district attorney for the north- 
 ern district of New York. 5 In the suit brought by the State 
 of Florida against the State of Georgia to settle the boundary 
 between them, the attorney-general of the United States was 
 permitted to file an information praying "that he be permitted to 
 appear in said case, and be heard in behalf of the United States, 
 in such time and form as the court shall order ; " and, although 
 permission for him to take testimony in the name of Florida with 
 its consent was refused, it was " Ordered, that the attorney- 
 general have leave to adduce evidence, either written or parol, 
 and to examine witnesses and file their depositions, in order to 
 establish the boundary claimed by the United States." 6 Infor- 
 mations have, however, been filed in equity in the courts of some 
 of the individual States. 7 " When the United States comes into 
 a court of equity as a suitor, it is subject to the defences peculiar 
 to that court." 8 Such an information or bill should be filed in 
 the name of the United States, not in the name of one of its law 
 officers. 9 
 
 § 64. Definition and Classification of Bills. — The usual course, 
 and the only one open to a private citizen, is the filing of a bill. 
 The word bill is derived from the Latin Ubellus ; and such a 
 pleading is sometimes called an English bill; because at the 
 time when pleadings at common law were in Law Latin or Law 
 French, it was as now written in the English language. 1 A bill 
 is a petition addressed to the judges of a court of equity, con- 
 taining a statement of the facts which in the plaintiff's opinion 
 
 8 Benton v. Woolsey, 12 Pet. 27 ; 4 Wall. 232. See Benton v. Woolsey, 12 
 
 United States v. Hughes, 11 How. 552, Pet. 27. 
 
 568 ; s. c. as Hughes v. United States, 4 5 Benton v. Woolsey, 12 Pot. 27. 
 
 Wall. 232 ; Mississippi & Missouri R. R. 6 Florida v. Georgia, 17 How. 478, 480, 
 
 Co. v. Ward, 2 Black, 485, 492 ; United 523. 
 
 States v. Union Pacific R. R., 98 U. S. 7 See for example Attorney-General i>. 
 
 569; Moffat v. United States, 112 U. S. Butler, 123 Mass. 306. 
 
 24; United States v. Minor, 114 U. S. 8 United States v. White, 17 Fed. R. 
 
 233. 561, 565. 
 
 4 United States v. Hughes, 11 How. 9 Benton v. Woolsey, 12 Pet. 27. 
 
 552, 568 ; a. c. as Hughes v. United States, § 64. 1 Story's Eq. PL § 7.
 
 110 BILLS. [CHAP. IV. 
 
 give him a right to sue, and concluding with a prayer for the 
 relief to which he deems himself entitled. 
 
 Quis, quid, coram quo, quo jure petatur, et a quo, 
 Recte compositus quisque libellus habet. 2 
 
 Bills are divided by the books into three classes : original bills, 
 bills not original, and bills in the nature of original bills. A 
 fourth class, which may be termed original bills in the nature of 
 bills not original, is recognized by the Federal courts. Original 
 bills are those which relate to some matter not before litigated 
 in the court at equity by the same parties standing in the same 
 interests. Bills not original are those which relate to some mat- 
 ter already litigated in the court at equity by the same parties, 
 or their representatives, and which are either an addition to, or 
 a continuance of an original bill, or both. Bills in the nature 
 of original bills are those which serve to bring before the court 
 the proceedings and decree in a former suit, for the purpose of 
 either obtaining the benefit of the same or procuring the reversal 
 of the decision made therein. 3 Original bills in the nature of 
 bills not original are those having all the characteristics of origi- 
 nal bills, except that the Federal courts will take jurisdiction 
 of them without regard to the citizenship of the parties, or the 
 other limitations of the original Federal jurisdiction. 4 Original 
 bills are of two kinds : those which pray relief, and those which 
 do not pray relief. Original bills which pray relief are said to 
 belong to three classes: bills which pray the decree of the court 
 concerning some right claimed by the plaintiff in opposition to 
 some right claimed by the defendant, bills of interpleader, and 
 bills of certiorari. Original bills not praying relief are of two 
 kinds : bills to perpetuate the testimony of witnesses, and bills 
 of discovery. Bills not original are bills of revivor, supple- 
 mental bills, and bills of revivor and supplement. Bills in the 
 nature of original bills are bills in the nature of supplemental 
 bills, bills in the nature of bills of revivor, cross-bills, bills of 
 review, bills impeaching decrees upon the ground of fraud, bills 
 to suspend the operation of decrees on special circumstances or 
 to avoid them on the ground of matter subsequent, and bills par- 
 
 2 Com. Dig. Chancery E 2 ; Story's Eq. 4 Minnesota Co. v. St. Paul Co., 2 Wall. 
 PI. § 25. 609 ; Krippendorf v. Hyde, 110 U. S. 276 ; 
 
 3 Mitford's PI. ch. 1, § 2; Story's Eq. Pacific Railroad of Missouri v. Missouri 
 PI. § 10. Pacific Ry. Co., Ill U. S. 505.
 
 § 65.] FRAME OF A BILL IN EQUITY. Ill 
 
 taking of the qualities of some one or more of these bills. 5 If 
 the court has jurisdiction of an original bill, it will take jurisdic- 
 tion of bills not original, and bills in the nature of original bills 
 growing out of the first suit, without regard to the citizenship 
 of the parties thereto. 6 And in certain other cases it will take 
 jurisdiction of bills otherwise original which are so intimately 
 connected with matters before the Federal court that it is in the 
 interest of convenience and justice to have them disposed of 
 before the same tribunal." These may be named original bills 
 in the nature of bills not original. Such is a bill to obtain 
 a judicial construction of previous decrees ; 7 a bill to obtain a 
 determination of the rights of a claimant to a fund in the hands 
 of a Federal marshal ; 8 a bill to stay proceedings at law ; 9 and a 
 bill to set aside a decree. 10 The peculiarities in the form and the 
 procedure upon original bills not praying relief, bills not original, 
 and bills in the nature of original bills, will be discussed in the 
 latter part of this work. In this chapter, the form of original 
 bills praying relief and, in the chapters immediately succeeding, 
 the proceedings upon them, will be explained, beginning with 
 the ordinary kind, — bills which seek relief concerning some right 
 claimed by the plaintiff in opposition to one claimed by the 
 defendant. 
 
 § 65. Frame of a Bill in Equity. — Formerly, bills usually con- 
 sisted of nine parts : the direction or address, the introduction, 
 the premises or stating part, the common-confederacy clause, the 
 charging part, the jurisdiction clause, the interrogating part, 
 the prayer of relief, and the prayer of process. 1 Of these, how- 
 ever, the common-confederacy clause, alleging that the defendant 
 or defendants are combining and confederating with some persons 
 to the plaintiff unknown, whose names when discovered he prays 
 leave to insert as defendants, which owed its origin to an idea 
 that otherwise the bill could not be amended so as to add new 
 
 5 Mitford's PI. ch. 1, § 2 ; Story's Eq. » Logan v. Patrick, 5 Cranch, 288 ; 
 PI. §§ 16-24. Dunn v. Clarke, 8 Pet. 1 ; Jones v. An- 
 
 6 Clarke v. Mathewson, 12 Pet. 164; drews, 10 Wall. 327, 333 j Dunlap v. Stet- 
 Jones v. Andrews, 10 Wall. 327, 333 ; son, 4 Mason, 340. 
 
 Pacific R.R.of Missouri y. Missouri Pacific M Pacific Railroad of Missouri v. Mis- 
 Ry. Co., Ill U. S 505. See § 21. souri Pacific Railway Company, 111 U. S. 
 
 7 Minnesota Co. v. St. Paul Co., 2 Wall. 505. 
 
 609. See § 21. § 65. ' Mitford's PI. ch. 1, § 3 ; Storv's 
 
 8 Krippendorf v. Hyde, 110 U. S. 276; Eq. PI. §§ 26-48. 
 Freeman v. Howe, 24 How. 450.
 
 112 BILLS. [CHA.P. IV. 
 
 defendants, and its retention to the practice of taxing costs 
 according to the length of the documents filed ; the charging 
 part, alleging the defence which it anticipated would be made 
 by the defendant, and the reply which the plaintiff intended to 
 make thereto ; and the jurisdiction clause, alleging that the acts 
 of the defendant which were complained of were contrary to 
 equity, and that the plaintiff was without any remedy at law : 
 were not even then considered necessary by the best authorities, 2 
 and by the equity rules have been expressly declared super- 
 fluous. 3 
 
 §66. The Address and Introduction. — In England, a bill ill 
 chancery was required to be addressed to the person having the 
 custody of the great seal, usually either the sovereign or the 
 Lord Chancellor, except when the Lord Chancellor himself was 
 the complainant, when it was addressed to the sovereign " in his 
 high court of chancery." 1 In the United States, as a great seal 
 is not as in England essential to the validity of writs in equity, 
 a bill is addressed to the judge or judges of the court where it is 
 filed. 2 The introduction formerly contained the names, descrip- 
 tions, and residences of the complainants, together with the 
 character in which they sued, if in a representative capacity, and 
 such other allegations as were necessary to found the jurisdiction 
 of the court. 3 Sometimes the names and descriptions of the de- 
 fendants were also here inserted, but it was more usual to name 
 them in the next part of the bill. 4 The equity rules regulate 
 the subject as follows : " Every bill in the introductory part 
 thereof shall contain the names, places of abode, and citizenship 
 of all the parties, plaintiffs and defendants, by and against whom 
 the bill is brought. The form, in substance, shall be as follows : 
 ' To the judges of the circuit court of the United States for the 
 
 district of : A. B., of , and a citizen of the State of 
 
 , brings this his bill against C. D., of , and a citizen of 
 
 the State of , and E. F, of , and a citizen of the State 
 
 of . And thereupon your orator complains and says that,' 
 
 &c." 5 If one of the parties is a corporation the bill must state 
 
 2 Mitford's PI. ch. 1, § 3 ; Langdell's Eq. 3 Mitford's PI. ch. 1, § 3 ; Story's Eq PI. 
 PL § 55 ; Story's Eq. PI. §§ 29, 32, 33, 34. § 26. 
 
 3 Rule 21. 4 Story's Eq. PI. § 26. Contra, Leaven- 
 § m. ! Mitford's PI. ch. 1, § 3 ; Story's worth v. Pepper, 32 Fed. R. 718. 
 
 Eq. PI. § 26. 5 Rule 20; United States v. Pratt Coal 
 
 2 Rule 20 & Coke Co., 18 Fed. R. 708; § 69.
 
 § 67.] THE NARRATIVE PART OF A BILL. 113 
 
 by or under the laws of what State it was created, and its mem- 
 bers will then be conclusively presumed to be citizens of that 
 State. 6 If one of the parties is an alien, it should aver that he is 
 " a citizen and subject of a foreign State," specifying that State's 
 name. 7 How advantage could be taken of an omission in the 
 introduction of the residence of the parties, whether by demurrer 
 or simply by a motion for security for costs, was, under the old 
 practice, a doubtful question. 8 The bill is certainly demurrable 
 if enough does not appear upon its face to show the court's juris- 
 diction. 9 A defect in this respect in the introductory part of a 
 bill is, it seems, not cured by an allegation in its title or caption. 10 
 It has been said that no one can be made a defendant under a 
 fictitious name ; u but in an English case where the parents of an 
 infant, who was a necessary defendant to a bill, refused to have 
 her baptized in order to interpose difficulties in the plaintiff's 
 way, Sir John Leach ordered that she should be described as 
 " the youngest female child of A. B. (naming her father) and 
 C. D. (naming her mother)." 12 Although this part of the bill 
 should contain the statement that the complainant sues on be- 
 half of others as well as himself, if he intends so to do, it has 
 been suggested that this might not be necessary when his case 
 is founded upon a statute " which itself gives that force and 
 direction to the bill." 13 
 
 § 67. The Narrative Part of a Bill. — The most important por- 
 tion of a bill in equity is the narrative or stating part. This 
 contains the plaintiff's cause of action. " It should set forth the 
 plaintiff's case in a clear and distinct narrative, with the facts 
 relied upon as the basis of the suit. For convenience, each para- 
 graph should be numbered, so that the successive allegations may 
 be readily referred to. 1 The object of old common-law pleading 
 was to bring the matter in controversy to certain distinct issues. 
 In equity pleading no such attempt is made. The statement of 
 the plaintiff's case in the bill differs little in language or form 
 
 6 Lafayette Ins. Co. v. French, 18 How. in Jackson v. Ashton, 8 Pet. 148. See 
 404 ; Muller v. Dows, 94 U. S. 444 ; Sharon v. Hill, 23 Fed. R. 353. 
 Steamship Co. v. Tugman, 106 U. S. 118. u Kentucky Silver Mining Co. v. Day, 
 
 7 Wilson v. City Bank, 3 Sumner, 422. 2 Sawyer C. C. 468. 
 
 8 Rowley v. Eccles, 1 Sim. & S. 511; u Eley v. Broughton, 2 Sim. & S. 188. 
 Daniell's Ch. Pr. (2d Am. ed.), 409. 13 Irons v. Manufacturers' Nat. Bank 
 
 9 Bingham v. Cabot, 3 Dall. 382 ; Jack- of Chicago, 17 Fed. R. 308. 
 
 son v. Ashton, 8 Pet. 148 ; United States v. § 67. 1 An omission to do tins will not 
 Pratt Coal & Coke Co., 18 Fed. R. 708. be a defect in pleading.
 
 114 BILLS. [CHAP. IV. 
 
 from any other statement of facts which might be drawn up for 
 the information of third parties, say an application to a govern- 
 ment board. The defendant's answer usually admits, or denies, 
 or qualifies seriatim each statement in the bill ; and occasionally, 
 before proceeding to notice the statement in detail, the defendant 
 gives a general history of the case from his own point of view. 
 The issues, both of fact and of law, are thus often involved in 
 large masses of statement, and have to be selected, so to speak, 
 by the judge who tries the cause, with the assistance of the 
 arguments of counsel. It would be difficult to imagine a less 
 technical document than a bill in equity." 2 The bill must con- 
 tain every fact essential to the plaintiff's cause of action. For 
 no evidence will be admitted to prove any fact not alleged in it. 3 
 It must plead every fact essential to the rights of the plaintiff, 
 and necessarily within his knowledge positively, not upon in- 
 formation and belief, 4 and with certainty. 5 Otherwise, it is de- 
 murrable. An allegation that an event occurred on or about a 
 certain specified day is, however, sufficient. 6 And less certainty 
 is required concerning facts of which a discovery is sought from 
 the defendant. 7 
 
 § 68. Scandal and Impertinence. — " Every bill shall be ex- 
 pressed in as brief and succinct terms as it reasonably can be, 
 and shall contain no unnecessary recitals of deeds, documents, 
 contracts, or other instruments, in haeo verba, or any other im- 
 pertinent matter, or &ny scandalous matter not relevant to the 
 suit." 1 "Facts not material to the decision are impertinent, and 
 if reproachful they are scandalous ; and, perhaps, the best test 
 by which to ascertain whether the matter be impertinent is to 
 try whether the subject of the allegation could be put in issue, 
 and would be matter proper to be given in evidence between the 
 
 2 Lectures before the Law School of 5 Harrison v. Nixon, 9 Pet. 483, 503 ; 
 Boston University on Equity Pleading Wormald v. De Lisle, 3 Beav. 18 ; Brooks 
 bv Judge Dwight Foster, M. S. See & Hardy i». O'Hara Brothers, 8 Fed. R. 
 Hayne's Eq. 70. 529 ; Daniell's Ch. Pr. (2d Am. ed.) 421- 
 
 3 Gordon v. Gordon, 3 Swanst. 400, 472 ; 425. 
 
 Miller v. Cotten, 5 Ga. 341, 346 ; Wilson 6 Richards w. Evans, 1 Ves. Sen. 39 ; 
 
 v. Stolley, 4 McLean, 275 ; Crocket v. Roberts v. Williams, 12 East, 33, 37 ; 
 
 Lee, 7 Wheat. 522 ; Jackson v. Ashton, Leigh v. Leigh, Daniell's Ch. Pr. 369. 
 
 8 Pet. 148. 7 Towle v. Pierce, 12 Met. (Mass.) 
 
 4 Lord Uxbridge v. Staveland, 1 Ves. 329,332; Lafayette Co. v. Neely,21 Fed. 
 Sen. 56 ; Egremont v. Cowell, 5 Beav. R. 738. 
 
 620; Mitford's PI. 40; Story's Eq. PI. §68. * Rule 26. 
 §§ 255, 256
 
 § 68.] SCANDAL AND IMPERTINENCE. 115 
 
 parties." 2 It is customary in bills seeking the protection or en- 
 forcement of rights depending upon complicated provisions of 
 Federal or State statutes, to set forth such statutes either at 
 length or according to their legal effect; and when the com- 
 plainant depends upon historical facts, of which the court will 
 take judicial notice, to state such facts also. Sometimes former 
 decisions of the courts are similarly pleaded. Although this 
 practice is not strictly correct, it is still convenient for the court 
 as well as counsel, inasmuch as the case made by the bill is 
 thereby made more easy of comprehension. It seems that ex- 
 ceptions to such allegations for impertinence cannot be sustained. 3 
 If a bill contain scandalous or impertinent matter, " it may, on 
 exceptions, be referred to a master by any judge of the court, for 
 impertinence or scandal ; and if so found by him, the matter shall 
 be expunged at the expense of the plaintiff, and he shall pay to 
 the defendant all his costs in the suit up to that time, unless the 
 court or a judge thereof shall otherwise order. If the master 
 shall report that the bill is not scandalous or impertinent, the 
 plaintiff shall be entitled to all costs occasioned by the refer- 
 ence." 4 " No order shall be made by any judge for referring 
 any bill, answer, or pleading, or other matter or proceeding de- 
 pending before the court, for scandal or impertinence, unless 
 exceptions are taken in writing and signed by counsel, describing 
 the particular passages which are considered to be scandalous or 
 impertinent ; nor unless the exceptions shall be filed on or before 
 the next rule-day after the process on the bill shall be returnable, 
 or after the answer or pleading is filed. And such order when 
 obtained shall be considered as abandoned, unless the party ob- 
 taining the order shall, without any unnecessary delay, procure 
 the master to examine and report for the same on or before the 
 next succeeding rule-day, or the master shall certify that further 
 time is necessary for him to complete the examination." 5 It has 
 been held in England that a person not a party to the suit may, 
 by leave of the court, file exceptions to a bill for scandalous 
 
 2 Chancellor Kent in Woods v. Mor- tion Co., 15 Fed. R. 5G1 ; s. c. 8 Sawyer, 
 
 rell, 1 J. Ch. (N. Y.) 103, at p. 106. See 600; Allen v. O'Donald, 23 Fed. R. 573; 
 
 also Hood v. Inman, 4 J. Ch. (N. Y.) 437. Steam Gauge & Lantern Co. v. McKob- 
 
 For an illustration of scandal, see the erts, 26 Fed. R. 765. 
 
 record in United States v. Schurz, 102 4 Rule 26. 
 
 U. S. 378. 5 Rule 27. 
 
 8 Wells v. Oregon Railway & Naviga-
 
 116 BILLS. [CHAP. IV. 
 
 matter reflecting upon himself; 6 and that the court may of its 
 own motion expunge scandalous matter at any time. 7 Excep- 
 tions for impertinence cannot, however, be taken after answer. 8 
 Neither scandal nor impertinence, however gross, is a ground for 
 demurrer, it being a maxim of pleading that utile per inutile non 
 vitiatur. 9 It has been said that an exception for impertinence 
 must be allowed in whole or not at all. 10 
 
 § 69. Certainty. — A bill must state the plaintiffs case with 
 sufficient certainty. Thus a bill by a receiver of a national bank 
 to recover for the loss caused to it by the negligence of its 
 directors, which prays relief against the persons who have acted 
 as directors during various periods of time, together with the 
 representatives of such as are dead, must " state the dates of the 
 losses sustained by the corporation and the dates of the acts or 
 omissions contributing to those losses, with sufficient certainty 
 to inform each of the defendants with which and how many of 
 the losses it is sought to charge him." * The bill must state 
 facts, not conclusions of law, which will be disregarded by the 
 court. 2 Thus a general charge of fraud is not sufficient, but it 
 must allege the specific acts or language which constitute the 
 fraud. 3 An allegation of a fraudulent intent has been held to 
 be an allegation of a fact. 4 It is not sufficient to state that the 
 defendant is a trustee, without alleging the facts by which he is 
 shown to be a trustee. 5 An allegation that a defendant cor- 
 poration is about to exceed its powers is insufficient. The bill 
 must show what acts are threatened and why they exceed the 
 powers of the corporation. 6 " The pleader should state the facts, 
 and not formulate mere epithetic ' charges.' ... If the facts are 
 not to be ascertained by diligence, or because of some obstruc- 
 tion, or if the evidence of them is in possession of the other side, 
 
 6 Williams v. Douglas, 5 Beav. 82 ; § 69. ! Price v. Coleman, 21 Fed. R. 
 Daniell's Ch. Pr. (2d Am. ed.) 402. 357. 
 
 7 Ex parte Simpson, 15 Ves. 476 ; Dan- 2 Harper v. Hill, 35 Miss. 63. 
 
 iell's Ch. Pr. (2d Am. ed.) 402, 403; a Gilbert v. Lewis, 1 De G., J. & Sm. 
 
 Story's Eq. PI. § 270. See also Langdon 38, 49 ; Bryan v. Spruill, 4 Jones Eq. 
 
 v. Goddard, 3 Story, 13. (N. C), 27; United States v. Atherton, 
 
 8 Story's Eq. PI. § 270. 102 U. S. 372. 
 
 9 Daniell's Ch. Pr. (2d Am. ed.) 401. * Piatt v. Mead, 9 Fed. R. 91. 
 See also Pacific Railroad of Missouri v. 5 Evan v. Avon, 29 Beav. 144. 
 Missouri Pacific Ry. Co., Ill U. S. 505, 6 Leo v. Union Pac. Ry. Co., 19 Fed. 
 516, 522. R. 283. 
 
 10 Chapman v. School District No. 1, 
 Deady, 108, 117, per Deady, J.
 
 § 70.] INCONSISTENCY AND BILLS WITH A DOUBLE ASPECT. 117 
 
 this should be made to appear, with technical averments showing 
 the necessity of discovery, when that is wanted ; but a court can- 
 not sustain a bill upon mere denunciatory statements of the plain- 
 tiffs suspicions or belief. The best pleadings are those which 
 state the inculpatory facts that carry with them their own con- 
 viction of the fraud, and by which the wrong-doing appears, 
 without much necessity for characterizing it as such." 7 It should 
 usually state facts and not evidence. The English rule was that 
 no admissions, whether written or oral, could be given in evidence 
 unless they had been specifically charged in the bill. 8 In this 
 country, however, though the point has never been decided 
 by the Supreme Court, we have the great authority of Judge 
 Story, at circuit, holding that such a practice is unnecessary. 9 
 So, according to Professor Langdell, " when a bill charges a 
 defendant with having had notice, or with having committed a 
 fraud, or with insanity or drunkenness, or lewdness or miscon- 
 duct in office, if the plaintiff intends to prove specific acts of 
 notice, or of fraud, insanity, drunkenness, lewdness, or miscon- 
 duct in office, it seems that such acts should be specifically 
 charged in the bill. But this view is not fully supported by 
 authority. It may also be stated generally, that whenever the 
 plaintiff has evidence which is likely to take the defendant by 
 surprise, it is the safer course to indicate its nature in the bill, 
 rather than to run the risk of having it objected to at the hear- 
 ing." 10 But as the cases upon the authority of which he made 
 these statements were decided when each party's evidence was 
 unknown to the other until the hearing, — a method of taking 
 testimony long since disused, 11 — it is not likely that the courts 
 would be as strict now as formerly in requiring such evidence to 
 be pleaded. 12 
 
 § 70. Inconsistency and Bills with a Double Aspect. — A bill 
 must not state two inconsistent states of fact and ask relief in 
 the alternative. But it may state the facts and ask relief in the 
 
 7 Lafayette Co. v. Neely, 21 Fed. R. i° Langdell's Eq. PI. § 60. See Wes- 
 
 738. ton v. Empire Assurance Corporation, 
 
 « Hall v. Maltby, 6 Price, 240 ; Evans L. R. 6 Eq. 23 ; Clark v. Periam, 2 Atk. 
 
 v. Bicknell, 6 Ves. 183; Austin v. Cham- 337 ; Shepherd v. Morris, 4 Beav. 252. 
 
 bers, 6 CI. & Fin. 38; Story's Eq. PI. n See Amendments to Rule 67, and 
 
 265. Chapter on Evidence. 
 
 9 Smith v. Burnham, 2 Sumner C. C. n See Smith v. Burnham, 2 Sumner 
 
 612 ; Jenkins v. Eldredge, 3 Story C. C. C. C. 612, 622; Story's Eq PI. § 265 a. 
 181, 283, 284; Story's Eq. PI. § 265.
 
 118 BILLS. [CHAP. IV. 
 
 alternative according to the conclusion of law that the court may 
 draw from them, so that if one kind of relief sought be denied 
 another may be granted ; and it may state facts of a different 
 nature not inconsistent with each other, and equally supporting 
 the prayer for relief. In both of these cases a bill is said to have 
 "' a double aspect." 1 Thus, a bill may state facts constituting an 
 attempt to form a new corporation by the consolidation of two 
 already existing, and pray that, if the new corporation have a 
 legal existence, the plaintiff may be declared entitled to a certain 
 number of shares therein, otherwise to a corresponding interest 
 in the stock of one of the old corporations. 2 The complainant 
 may seek to quiet the title to lands, claiming either as devisee 
 or as heir-at-law. 3 A bill may contain a prayer that an agree- 
 ment be either set aside as obtained by fraud, or else specifically 
 enforced. 4 A bill was sustained when filed by one partner 
 against another, praying for specific performance of a contract 
 for the sale of land, or else for an account of the partnership 
 debts, and a charge of their amount upon the land as belonging 
 to the assets of the firm. 5 If the plaintiff wish to set aside a 
 deed on account of fraud, imposition, and undue influence, he 
 may allege both that the maker was insane and that he had a 
 great imbecility of mind. 6 But if he allege that a decree which 
 he wishes to set aside was obtained either by mistake of all the 
 parties, or by deception practised upon himself, or by collusion 
 of the defendant with third parties, the bill will be demurrable 
 for indefiniteness. 7 In a recent case the court said : " To allege 
 that a sale is simulated, and if not simulated is fraudulent, mean- 
 ing thereby it is a sham sale, and if not a sham then a real sale, 
 but fraudulent, may be consistent, but it is not certain ; and cer- 
 tainty is a requisite in equity pleading as well as consistency. 
 It seems to me that, if there is doubt as to the nature of the 
 transaction, the creditor, who has ' to strike in the dark,' should 
 charge a fraudulent simulation, and on discovery amend if neces- 
 
 § 70. i Shields v. Barrow, 17 Howard, Haute & I. R. Co., 33 Fed. R. 440, 448, 
 
 130, 144; Story's Eq. PI. §§ 426, note, 449. 
 254. 5 Hoxie v. Carr, 1 Sumner, 173. 
 
 2 Kilgour v. New Orleans Gas-Light 6 Story's Eq. PI. § 254; Bennet v. 
 Co., 2 Woods, 144, 148. Vade, 2 Atk. 325; Colton v. Ross, 2 
 
 3 Gaines v. Chew, 2 How. 619, 643. Paige (N. Y.), 396; Lloyd v. Brewster, 
 
 4 Hardin v. Boyd, 113 U. S. 756. But 4 Paige (N. Y), 537. 
 
 see Shields v. Barrow, 17 How. 130, 143; " Brooks v. OHara, 8 Fed. R. 529; 
 St. Louis, V. & T. H. R. Co. v. Terre s. c. 2 McCrary, 644.
 
 § 71.] MULTIFARIOUSNESS IN GENERAL. 119 
 
 sary." 8 A bill was sustained where the complainant sought 
 specific performance of an agreement by his partner to transfer 
 to him the latter's interest in certain land, or in the alternative 
 to have the land charged with the debts of the copartnership. 9 
 But it was held in England that a bill may not pray relief 
 primarily against one of two defendants, and, in case the court 
 should hold him free from liability, then against the other. 10 
 A bill is bad when it contains two alternative claims each 
 belonging to several persons, one of whom has no interest in 
 one claim, and others of whom have no interest in the other 
 claim. 11 " When the 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 defendant in answering a case not 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 alternatively, either 
 on the ground of fraud, or, failing on that ground, on some other 
 equity, a plaintiff failing on the first may succeed on the latter 
 alternative. But then the attention of the defendant has been 
 distinctly called to it, and he has been called upon to answer the 
 case according to both alternatives. It is the duty of the judge 
 to determine whether the two are so interwoven with each other 
 that, on the failure of proof of fraud, it is impossible to treat the 
 facts as separate allegations, justifying a separate mode of deal- 
 ing with them." 12 
 
 § 71. Multifariousness in General. — A bill must not be multi- 
 farious. Multifariousness consists in the joinder of two or more 
 distinct and unconnected grounds for equitable relief, each ot 
 which might be the foundation for a separate bill. This may 
 occur in three ways, — by a misjoinder of plaintiffs, by a mis- 
 joinder of defendants, and by a misjoinder of grounds for equit- 
 
 8 Pardee, J., in Socola v. Grant, 15 56; Britton v. Brewster, 2 Fed. R. 1(10; 
 Fed. R. 487, 489. French v. Shoemaker, 14 Wall. 314, 335; 
 
 9 Hoxie v. Carr, 1 Sumner, 173. Fisher v. Boody, 1 Curt. 206 ; Hoyt v. 
 
 10 Clark v. Lord Rivers, L. R. 5 Eq. 91, Hoyt, 27 N. J. Eq. 309 ; Wilde v. Gibson, 
 97. But see Kilgour v. New Orleans 1 H. of L. Cases, 605 ; Hickson v. Lom- 
 Gas Light Co., 2 Woods, 144, 148. bard, L. R. 1 H. of L. 326; Thomson v. 
 
 11 Stebbins v. St. Anne, 116 U. S. 386. Eastwood, L. R. 2 App. Cases, 215 ; 
 
 12 Foster's Lectures on Equity Plead- Price v. Berrington, 3 Macn. & G. 486, 
 ing, MS. ; Eyre v. Potter, 15 How. 42, 498.
 
 120 BILLS. [CHAP. IV. 
 
 able relief held by and against the same parties. 1 " To lay down 
 any rule applicable universally, or to say what constitutes multi- 
 fariousness 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." 2 "The only 
 way of reconciling the authorities upon the subject is by advert- 
 ing to the fact that, although the books speak generally of de- 
 murrers for multifariousness, yet in truth such demurrers may 
 be divided into two distinct kinds. Frequently the objection 
 raised, though termed multifariousness, is in fact more properly 
 misjoinder ; 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 these transactions 
 may be so dissimilar 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,' 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 portion of which, and 
 of the case made by which, he has no connection whatever." 3 
 There is, however, little practical good to be obtained from a 
 maintenance of this distinction except as a means of elucidating 
 some of the expressions in the earlier authorities. 4 " The de- 
 cisions on this subject are contradictory and unsatisfactory. 
 The common-sense rule in such cases is that an individual shall 
 not be called to maintain his title or shall not assert it, in con- 
 nection with others to which it has no analogy, and in the 
 investigation of which the costs and complexity of the case will 
 be increased." 5 
 
 § 72. Multifariousness by Misjoinder of Plaintiffs. — No persons 
 can unite as complainants in a bill in equity unless they have a 
 
 § 71. * Calvert on Parties, Book I. * See Calvert on Parties, Book I. ch. 
 
 ch. vii. vii. 
 
 2 Lord Cottenham in Campbell v. 6 Mr. Justice McLean in Turner v. 
 Mackay, 1 M. & Cr. 603, 618. American Baptist Missionary Union, 5 
 
 3 Lord Cottenham in Campbell . McLean, 344, 349, 
 Mackay, 1 M. & Cr. 603, 618. Approved 
 
 in Shields v. Thomas, 18 How. 253, 259.
 
 § 72.] MULTIFARIOUSNESS BY MISJOINDER OF PLAINTIFFS. 121 
 
 joint or common interest in obtaining the same relief. 1 Thus if 
 one of them has no interest in the relief claimed, the bill is 
 demurrable. 2 Those who claim the return of money paid by 
 them severally on distinct promissory notes cannot join their 
 claims in the same bill ; 3 nor can several creditors claiming un- 
 der several obligations unite in a suit to attach the debts of an 
 absent debtor. 4 But in a bill to compel specific performance of a 
 decree in a former suit, all the complainants in the first suit may 
 join as plaintiffs, though the decree sought to be enforced orders 
 the payment of specific sums severally to each of them. 5 Plain- 
 tiffs with conflicting interests cannot so join. 6 Such are, in a suit 
 for the construction of a will, persons, each of whom is inter- 
 ested in having a different construction put upon it. 7 Nor can 
 two join in a bill to set aside a fraudulent conveyance of land, 
 of whom one claims the land as a creditor of the person who has 
 made the conveyance, and the other as the purchaser of the land 
 upon a sheriff's sale to satisfy a judgment held by him. 8 But the 
 interests of the complainants need not be coextensive. Thus, a 
 tenant for life and the remainder-men of an estate, either legal 
 or equitable, may join in a suit to protect the estate. 9 Although 
 usually there must be some privity between the complainants in 
 a bill, yet in certain cases those between whom there is no priv- 
 ity are allowed to sue together when they seek to avert an injury 
 which will affect them all alike. Thus, several tenants or par- 
 ishioners may unite in a bill of peace seeking to dispose of a dis- 
 puted right claimed against them by the lord of the manor 10 or 
 the parson of the parish. 11 And the owners of several lots of 
 land claiming under a common source of title may unite in a 
 bill of peace against several other claimants to the same lots, 
 who also rely upon a common source of title adverse to that 
 
 § 72. i Story's Eq. PI. § 279 ; Calvert C. C. 432 ; Bell v. Cureton, 2 M. & K. 
 
 on Parties (2d ed.), 105, 110. 503. 
 
 » Walker v. Powers, 104 U. S. 245, 7 Parsons v. Lyman, 4 Blatchf. C. C. 
 
 249 ; Doggett v. Railroad Co., 99 U. S. 432 ; Saumarez v. Saumarez, 4 M. & Cr. 
 
 72. 331, 336. 
 
 8 Yeaton v. Lenox, 8 Pet. 123. 8 Walker v. Powers, 104 U. S. 245. 
 
 4 Yeaton v. Lenox, 8 Pet. 123. But 9 Story's Eq. PI. § 279 a ; Buckeridge 
 
 see Norrls v. Hassler, 22 Fed. R. 401; v. Glasse, 1 Cr. & Pliill. 126; Calvert on 
 
 Langdon v. Branch, 37 Fed. R, 449. Parties (2d ed.), 99. 
 
 6 Shields v. Thomas, 18 How. 253. 10 Anon., 1 Chan. Cas. 269 ; Smith v. 
 
 6 Walker v. Powers, 104 U. S. 245; Earl Brownlow, L. R. 9 Eq. 241. 
 
 Saumarez v. Saumarez, 4 Mylne & Cr. " Rudge v. Hopkins, 2 Eq. Cas. Abr. 
 
 331, 336 ; Parsons v. Lyman, 4 Blatchf. 170
 
 122 BILLS. [CHAP. IV. 
 
 of the complainants. 12 It has been said that the owners of 
 adjacent property may maintain a bill in equity to enjoin a de- 
 fendant from erecting a livery stable or other nuisance in their 
 vicinity. 13 But another case holds that different persons, each 
 of whom will suffer a distinct injury from the levy of a tax, 
 cannot unite in a bill to enjoin its levy on account of its alleged 
 unconstitutionality. 14 
 
 § 73. Multifariousness by Misjoinder of Defendants. — No per- 
 sons can be joined as defendants to a bill in equity who have not 
 a joint or common interest in opposing the relief prayed for. 1 
 Different relief may, however, be obtained against different de- 
 fendants when the bill seeks to prevent or annul the effect of acts 
 in pursuance of a common scheme, or so connected with each 
 other as to form part of the same transaction. 2 The rule was 
 thus stated by Sir John Leach : " In order to determine whether 
 a suit is multifarious, or in other words, contains distinct matters, 
 the inquiry is not, as this defendant supposes, whether each 
 defendant is connected with every branch of the cause, but 
 whether the plaintiff's bill seeks relief in respect of matters which 
 are in their nature separate and distinct. If the object of the 
 suit be single, but it happens that different persons have separate 
 interests in distinct questions which arise out of that single 
 object, it necessarily follows that such different persons must be 
 brought before the court, in order that the suit may conclude 
 the whole object." 3 " The entirety of the case against one de- 
 fendant constitutes the connecting link." 4 But a bill is multi- 
 farious when the charge against one defendant is in no way 
 connected with those against other defendants. 5 A bill is multi- 
 farious, which seeks both to foreclose a mortgage and to restrain 
 another defendant from asserting a claim of title adverse to both 
 
 12 Crews v. Burcham, 1 Black, 352. vii. ; Manners v. Rowley, 10 Simons, 
 
 1 3 Flint v. Russell, 5 Dill. 151. See 470. 
 
 also Parker v. Nightingale, 6 Allen 3 Salvidge v. Hyde, 5 Maddock, 138, 
 
 (Mass.), 341. But contra, Hudson v. Mad- 146. 
 
 dison, 12 Simons, 416. * Calvert on Parties (2d ed.), 98 ; 
 
 14 Cutting t;. Gilbert, 5 Blatchf. C. C. quoting Sir John Leach in Turner v. 
 259. See, however, Central Pacific R. R. Robinson, 1 Sim. & S. 313 ; and Lord Cot- 
 v. Dyer, 1 Saw. 641 ; Union Pacific R. R. tenham in Attorney-General v. Corpora- 
 ls. McShane, 3 Dill. 303. tion of Poole, 4 M. & Cr. 17, 31. 
 
 §73. ! Calvert on Parties, Book I. ch. 5 Wood v. Dummer, 3 Mason, 308; 
 
 vii. ; United States v. Alexander, 4 Cranch West v. Randall, 2 Mason, 181, 200 ; 
 
 C. C. 311. Lewarne v. Mexican International Imp. 
 
 2 Calvert on Parties, Book I. Chap. Co., 38 Fed. R. 629.
 
 § 73.] MULTIFARIOUSNESS BY MISJOINDER OF DEFENDANTS. 123 
 
 mortgagee and mortgagor ; 6 and a bill to obtain a transfer ot 
 land from one defendant, and to restrain another from asserting a 
 conflicting claim to the same ; 7 and a bill by an executor to set- 
 tle the conflicting controversies between himself, the heirs of his 
 testatrix, the heirs of her husband, both of whom dispute be- 
 quests under her will, and one claiming to be a creditor of her 
 estate. 8 An English case holds that different violators of the 
 same copyright cannot be enjoined by the same bill when their 
 acts of piracy were not performed in confederacy with each 
 other. 9 But this case has been doubted by Judge Story, 10 and 
 distinguished by Chancellor Kent ; u and the courts might per- 
 haps refuse to follow it here. 12 Persons who are acting in con- 
 cert as employees of the same corporation in the infringement of 
 a patent may be joined as defendants to a bill. 13 A bill filed by 
 an assignee in bankruptcy against all the incumbrancers of his 
 assignor's estate, some but not all of whom had liens upon the 
 same property, to set aside their liens as fraudulent, and to have 
 the property sold for the common benefit of the creditors, was 
 held not multifarious. 14 A bill filed by the beneficiary under 
 several deeds of trust, some upon different parts of the same 
 property, one covering the entire property, against the trustees, 
 the trustor, and the different persons claiming liens upon the 
 property, was held not multifarious. 15 A bill was sustained when 
 filed by one of the next of kin against both an administrator and 
 his sureties, to obtain the plaintiff's share of the estate. 16 A cred- 
 itor's bill may be filed against the members of two different firms 
 when some are members of both. 17 A bill may be filed by the 
 holder of a bond secured by a lien upon the property of a cor- 
 poration against both the corporation and its stockholders, at 
 the same time to foreclose his lien, and compel the stockholders 
 to pay so much of the balance of their subscriptions to the stock 
 of the corporation as will suffice for the payment of the deficiency 
 
 6 Dial v. Reynolds, 96 U. S. 340. 14 McLean v. Lafayette Bank, 3 Mc- 
 
 7 Copen v. Flesher, 1 Bond, 440. Lean, 415. See also Jones v. Slausson, 
 
 8 Haines v. Carpenter, 1 Woods, 262. 33 Fed. R. 632 ; Potts v. Hahn, 32 Fed. 
 8 Dilly v. Doig, 2 Ves. Jr. 486. R. 660. 
 
 10 Story's Eq. PI. §§ 277, 278. 15 Grant v. Phoenix Life Ins. Co., 121 
 
 11 Brinkerhoff v. Brown, 6 J. Ch. U. S. 105. 
 
 (N. Y.) 139, at p. 155. 1B Payne v. Hook, 7 Wall. 425. 
 
 12 See Fox well v. Webster, 10 Jur. 17 Nelson v. Hill, 5 How. 127. See also 
 n. a. 137. Oliver v. Piatt, 3 How. 333. But see 
 
 18 Poppenhusen v. Falke, 4 Blatch. Griffin v. Merrill, 10 Md. 304. 
 C. C. 493.
 
 124 BILLS. [chap. IV. 
 
 after the foreclosure sale. 18 A bill of peace may be filed to dis- 
 pose of the claims of a number of defendants, which all depend 
 on the determination of a single question of fact or law. 19 Thus, a 
 bill by a parson or lord of a manor to establish a claim against 
 all of his parishioners 20 or tenants ; 21 a bill by the owner of a fish- 
 ery to establish his claim against a number of riparian owners ; ^ 
 a bill hy a city to establish its claim to a tax against several of 
 the class liable to it ; 23 a bill by a railroad company to restrain 
 the tax-collectors of different counties from le\wing taxes sepa- 
 rately assessed, but part of each of which is to be paid to the State, 
 and the validity of all of which depends upon the construction of 
 a single statute j 24 by a railroad company to quiet its title against 
 a number of claimants to land in severalty, the validity of the 
 separate title of each of whom depends upon the construction of 
 one statute ; ^ and by an heir-at-law against the executors of an 
 invalid will, and all who have purchased from them the land 
 belonging to the ancestor's estate. 26 
 
 § 74. Multifariousness without Misjoinder of Parties. — Multi- 
 fariousness may also exist without a misjoinder of parties, when 
 two or more distinct and unconnected grounds of equitable relief 
 are joined in the same bill. Thus, a bill is multifarious when 
 filed by the receiver against the directors of a national bank to 
 recover claims for losses suffered by the corporation by reason of 
 the directors' negligence, and claims for losses suffered by the 
 stockholders by reason of having been induced to subscribe for 
 new shares by misrepresentations of the directors. 1 So is a bill 
 which seeks an account of a trust held by all of the defendants, 
 and also seeks to set aside the effects of a distinct and indepen- 
 dent fraud upon the trustor committed by one only of them. 2 So 
 is a bill by one heir-at-law of a deceased married woman against 
 her husband and the other heirs, to set aside both her marriage 
 
 18 Manufacturing Company v. Bradley, & City of London v. Perkins, 3 Bro. 
 105 U. S. 175. Pari. Cas. 602. 
 
 1 9 Gaines v. Chew, 2 How. 619; U. S. ** Union Pacific R. R. v. McShane, 
 v. Curtner, 26 Fed. R. 296, 298; Hyman 3 Dill. 303. 
 
 v. Wheeler, 33 Fed. R. 329. * Central Pacific R. R. Co. v. Dyer, 
 
 20 Brown v. Vermuden, 1 Chan. Cas. 1 Saw. 641. 
 
 272. 20 Gaines v. Chew, 2 How. 619. 
 
 21 Conyers v. Lord Ahergavenny, 1 § 74. J Price v. Coleman, 21 Fed. R. 
 Atk. 285. 357. See also Lewarne v. Mexican Inter- 
 
 '-- Mayor of York v. Pilkington, 1 Atk. national Imp. Co., 38 Fed. R. 629. 
 284. 2 West v. Randall, 2 Mason, 181. But 
 
 see Mills v. Hurd, 32 Fed. R. 127.
 
 § 74.] MULTIFARIOUSNESS WITHOUT MISJOINDER OF PARTIES. 125 
 
 settlement and her will. For " in these two matters the necessary- 
 parties to the suit may be the same, but their interests and atti- 
 tude are decidedly at variance." 3 A bill to determine conflict- 
 ing claims to land, and also asking for a partition of the land after 
 the title should be determined, has been held multifarious ; 4 and so 
 has a bill asking for a discovery by the defendant of an applica- 
 tion for a policy of life insurance, and for the specific performance 
 of an agreement to issue the policy sought in the application. 5 It 
 has also been held multifarious to sue in one bill for an injunction 
 against the violation of several distinct patents ; 6 but not if the 
 infringement is made by the use or manufacture of a single ma- 
 chine. 7 In the latter case the bill should so allege. It has been 
 said that the complainant " should aver that said inventions are 
 capable of conjoint as well as separate use, and are so used by 
 the defendants." 8 It is not multifarious to seek in the same bill 
 to reform a written agreement on account of a mistake, and to 
 enforce its performance as reformed ; 9 nor to seek to set aside and 
 cancel an insurance policy and enjoin the further prosecution of 
 an action to recover premiums paid upon it ; 10 nor to compel the 
 issue of such a policy, and at the same time collect its amount. 11 
 Nor is a bill against a single defendant to collect assessments on 
 account of the same improvement made against several different 
 lots owned by him which do not adjoin each other. 12 Nor a bill 
 filed by one railway company against another to compel an ac- 
 counting as to the disposition and proceeds of bonds issued by the 
 former to the latter, and the payment of the damages resulting 
 from the foreclosure of the mortgage given to secure those bonds, 
 and to recover the rents due under a lease of the plaintiff's road ; 
 when the execution of this lease and the issue of these bonds 
 were parts of the same transaction. 13 Nor a bill by the United 
 
 3 McDonnell v. Eaton, 18 Fed. R. 710. 8 Gamewell Fire Alarm Telegraph Co. 
 
 * Chapin v. Sears, 18 Fed. R. 814. v. City of Chillicothe, 7 Fed. R. 351 ; Nel- 
 
 6 Markey v. Mutual Benefit Life Ins. lis v. McLanahan, 6 Fisher's Pat. Cas. 
 Co., 6 Ins. L. J. 537. 286. 
 
 « Hayes v. Dayton, 8 Fed. R. 702; 9 Gillespie v. Moon, 2 J. Ch. (N. Y.) 
 
 Shickle v. South St. Louis Foundry Co., 585. 
 
 22 Fed. R. 105. io Equitable Life Assurance Soc. v. 
 
 7 Nourse v. Allen, 4 Blatchf . C. C. 376 ; Patterson, 1 Fed. R. 126. 
 
 Perry v. Corning, 7 Blatchf. C. C. 195 ; " Hebert v. Mutual Life Ins. Co., 12 
 Case v. Redfield, 4 McLean, 526 ; Game- Fed. R. 807 ; Brugger v. State Invest- 
 well Fire Alarm Tel. Co. v. City of Chilli- ment Ins. Co., 5 Saw. 304. 
 cothe, 7 Fed R. 351; Nellis v. McLanahan, 12 Fitch v. Creighton, 24 How. 159. 
 6 Fisher's Pat. Cas. 286. See U. S. v. Am. 13 Pacific R. R. (of Missouri) v. Atlan- 
 Bell Telephone Co., 128 U. S. 315. tic & Pacific R. R. Co., 20 Fed. R. 277.
 
 126 BILLS. [CHAP. IV. 
 
 States to set aside a land-patent for fraud, obtain an accounting 
 of the rents and profits of the land, and re^ ver damage for 
 waste. 14 
 
 § 75. Objections for Multifariousness. — An objection to a bill 
 as multifarious should be raised by demurrer. 1 If not apparent 
 upon the face of the bill, it is very doubtful whether it can be 
 raised by plea or answer. 2 It can never be taken for the first 
 time at the hearing 3 or upon appeal ; 4 but the court may, of its 
 own motion, dismiss a bill for multifariousness at any time ; 5 and 
 perhaps the objection that the rights of the complainants are in- 
 consistent can be raised at the hearing. 6 It has been said that 
 the objection cannot be taken by a defendant who is not injured 
 by it." The misjoinder of a defendant against whom the bill 
 states no ground for relief is not a cause for a demurrer by the 
 other defendants. 8 Multifariousness as to subjects or parties 
 does not render a decree void, so that it can be treated as a 
 nullity in a collateral action. 9 It has been held in other courts, 
 that a bill is not multifarious which joins an insufficient with a 
 good case for equitable relief, when there is no misjoinder of 
 parties, and that the proper course of the defendant is to demur 
 to so much of the bill as is insufficient ; 10 but a bill is multifarious 
 which joins two inconsistent complaints by different plaintiffs, 
 although the case shown by the principal plaintiff is insufficient. 11 
 It is within the constitutional power of Congress to pass a law 
 allowing, in a single specified suit against a corporation chartered 
 by it, matters and defendants to be joined in a manner that would 
 otherwise constitute multifariousness. 12 When an objection for 
 
 1 4 United States v. Pratt Coal & Coke 6 Davies v. Quaterman, 4 Y. & Coll. 
 
 Co., 18 Fed. R. 708. 257. 
 
 § 75. 1 Nelson v. Hill, 5 How. 127. 7 Buerk v. Imhaeuser, 8 Fed. R. 457. 
 
 2 Benson v. Hadfield, 4 Hare, 32 ; 8 Warthen v. Brantley, 5 Ga. 571 ; 
 
 Greenwood v. Churchill, 1 M. & K. 559 ; Whitbeck v. Edgar, 2 Barb. Ch. (N. Y.) 
 
 Gibbs v. Clagett, 2 Gill & J. (Md.) 14; 106; Miller v. Jamison, 9 C. E. Green 
 
 Story's Eq. PI. § 747 ; Beames on Pleas, (N. J.), 41 ; Story's Eq. PI. § 544. 
 
 157 158. 9 Hefner v. Northwestern Life Ins. 
 
 a Greenwood v. Churchill, 1 M. & K. Co., 123 U. S. 747. 
 
 559; Oliver v. Piatt, 3 How. 333, 412; 10 McCabe v. Bellows, 1 Allen (Mass), 
 
 Nelson v. Hill, 5 How. 127 ; Bowman's 269 ; Snavely v. Harkrader, 29 Gratt. 
 
 Devisees v. Wathen, 2 McLean, 370. (Va.) 112; Story's Eq. PI, § 283. See 
 
 4 Oliver v. Piatt, 3 How. 333, 412 ; Brown v. Guarantee Trust Co., 128 U. S. 
 Barney v. Latham, 103 U. S. 205, 215. 403. 
 
 5 Oliver ». Piatt, 3 How. 333, 412 ; " Walker v. Powers, 104 U. S. 245, 
 Nelson ».Hill, 5 How. 127,132; Green- 249. 
 
 wood v. Churchill, 1 M. & K. 559 ; Ohio 12 United States v. Union Pacific R. R., 
 v. Ellis, 10 Ohio, 456. 98 U. S. 569.
 
 § 76.] SPECIAL PROVISIONS OF EQUITY RULES AND PRACTICE. 127 
 
 multifariousness is sustained, the complainant will always be al- 
 lowed, if he asks leave to do so, to amend upon payment of costs, 
 unless his bill be otherwise fatally defective. 13 The cases show 
 a tendency towards holding that multifariousness depends so 
 much upon the discretion of the courts of first instance, that 
 a decision overruling an objection upon that ground would 
 not be reviewed upon appeal. 14 In no case has the Supreme 
 Court of the United States reversed a decree on account of 
 multifariousness in the bill. In general, it may be remarked 
 that multifariousness is an objection much more often taken 
 than sustained. 
 
 § 76. Special Provisions of the Federal Equity Rules and Prac- 
 tice. — " The plaintiff may in the stating or narrative part of his 
 bill, state, and avoid by counter-averments at his option, any 
 matter or thing which he supposes will be insisted upon by the 
 defendant by way of defense or excuse to the case made by the 
 plaintiff for relief." 1 Such matter was formerly included in a 
 separate part called the charging part of the bill, which, how- 
 ever, was never indispensable. 2 It is often important for the 
 plaintiff to thus meet a defence which he anticipates. For as 
 special replications are not allowed, he may thus save the delay 
 of an enforced amendment of his bill, in order to plead new mat- 
 ter as a reply to a defence in the answer. "If any persons, 
 other than those named as defendants in the bill, shall appear to 
 be necessary or proper parties thereto, the bill shall aver the rea- 
 son why they are not made parties, by showing them to be 
 without the jurisdiction of the court, or that they cannot be 
 joined without ousting the jurisdiction of the court as to other 
 parties." 3 These averments should be included in this part of 
 the bill. " Every bill brought by one or more stockholders in a 
 corporation and other parties, founded on rights which may 
 properly be asserted by the corporation, must be verified by oath, 
 and must contain an allegation that the plaintiff was a share- 
 holder at the time of the transaction of which he complains ; or 
 that his share had devolved on him since by operation of law ; 
 
 13 Walker v. Powers, 104 U. S. 245, kuk N. L. Packet Co., 8 Fed. R. 709 ; 
 249 ; Price v. Coleman, 21 Federal Re- Daniell's Ch. Pr. 335, note 2. 
 
 porter, 357. § 76. * Rule 21. 
 
 14 See Gaines v. Chew, 2 How. 619; 2 Story's Eq. PL § 33; Langdell's 
 Oliver v. Piatt, 3 How. 333 ; Barney v. Eq. PI. § 55. 
 
 Latham, 103 U. S. 205 ; Sheldon v. Keo- 3 Rule 22.
 
 128 BILLS. [CHAP. IV. 
 
 and that the suit is not a collusive one to confer on a court of the 
 United States jurisdiction of a case of which it would not other- 
 wise have cognizance. It must also set forth with particular- 
 ity the efforts of the plaintiff to secure such action as he desires 
 on the part of the managing directors or trustees, and, if neces- 
 sary, of the shareholders, and the causes of his failure to obtain 
 such action." 4 This rule does not apply to suits brought by 
 the stockholders of a corporation after its dissolution ; 5 nor to a 
 suit to restrain corporate action to which the president of the cor- 
 poration is made a party solely for purposes of discovery ; 6 nor 
 to a case where it clearly appears that the corporation would 
 certainly refuse to exercise the right upon which the suit is 
 founded. 7 But it has been said, that " it is not enough to say 
 that it appears from the bill that the corporation would probably 
 refuse relief. The rule is imperative that efforts should be made 
 to obtain relief in that direction before such a suit as this shall be 
 commenced." 8 An allegation " that this suit is brought in good 
 faith, and for the collection of, and to compel the collection of, 
 what your orator believes to be a meritorious claim," is not 
 equivalent to the allegation " that the suit is not a collusive one, 
 to confer on a court of the United States jurisdiction of a case of 
 which it would not otherwise have cognizance." 9 In a case 
 where the jurisdiction of the court depended upon the amount 
 involved, it was held at circuit that the bill should show that the 
 value of the matter in dispute exceeds the jurisdictional amount. 10 
 If a bill be filed to impeach a patent or other grant by the United 
 States and be not brought by the Attorney-General, or some 
 other officer authorized by statute to do so, it must contain an 
 allegation that the Attorney-General has " given such order for 
 its institution as will make him officially responsible for it, and 
 show his control over the cause." n 
 
 4 Rule 94- See also Hawes v. Oak- 6 Leo v. Union Pacific Ry. Co., 17 
 land, 104 U. S. 450 ; Huntington v. Palmer, Fed. R. 273. 
 
 104 U. S. 482 ; Dodge v. Woolsey, 18 ' County of Tazewell v. Farmers' Loan 
 
 How. 331 ; Greenwood v. Freight Co., 105 & Trust Co., 12 Fed. R. 752. 
 
 U. S. 13, 16 ; Detroit v. Dean, 106 U. S. 8 McCrary, J., orally in Foote v. 
 
 537, 542 ; County of Tazewell v. Farmers' Cunard Mining Co., 17 Fed. R. 46, 48. 
 
 Loan & Trust Co., 12 Fed. R. 752 ; 9 Quincy v. Steel, 120 U. S. 241, 246, 
 
 Dimpfell v. Ohio & Miss. R. R. Co., 247. 
 
 110 U. S. 209 ; Quincy v. Steel, 120 U. S. 10 United States v. Pratt Coal & Coke 
 
 241. Co., 18 Fed. R. 708. 
 
 5 Lafayette Co. v. Neely, 21 Fed. R. u Mr. Justice Miller in United States 
 738. v. Throckmorton, 98 U. S. 61, 71.
 
 § 77.] BILLS TO ENJOIN THE INFRINGEMENT OF PATENTS. 129 
 
 § 77. Bills to enjoin the Infringement of Patents. — A bill to 
 restrain the infringement of a patent must contain an allegation 
 that the complainant or the person through whom he claims was 
 the inventor or discoverer of the thing or process patented. 1 
 The history of the invention and a description of patents issued 
 to the complainant before that sued upon and also proper aver- 
 ments. 2 It is also proper to describe previous litigation over 
 the same or similar patents. 3 It has, however, been held to be 
 a sufficient allegation of title and infringement for the plaintiff 
 to allege : that he " was the true, original, and first inventor 
 of a certain new and useful improved application of steam power 
 to the capstan of vessels, not known or used before " ; " that 
 a description or specification of the aforesaid improvement was 
 o-iven in his schedule to the aforesaid letters-patent annexed, 
 accompanied by certain drawings referred to in said last men- 
 tioned schedule, and forming parts of said letters-patent, — the 
 said letters-patent and the said specification thereto annexed 
 (which, or an exemplified copy of which, your orators will pro- 
 duce, as your honors may direct) were duly recorded in the patent 
 office " ; and " that the defendant is now constructing, using, 
 and selling steam-power capstans for vessels in some parts thereof 
 substantially the same in construction and operation as in the 
 said letters-patent mentioned." 4 The allegation " as by the said 
 letters-patent and specification, all in due form of law ready in 
 court to be produced, will fully appear," is equivalent to profert 
 in the most formal and ample terms. It tenders the entire grant 
 to the inspection of the court and party. 5 When profert of 
 the patent is made in the bill, only its title need be set forth. 6 
 It was held at circuit that in a bill founded upon a reissued patent 
 it is not necessary to cover specifically the ground upon which 
 the original patent was surrendered ; 7 but if such a bill shows 
 a delay of more than two years in obtaining the reissue, it should 
 set up an excuse for the delay. 8 Upon a demurrer for both 
 
 § 77. l Sullivan v. Redfield, 1 Paine, Valley Transportation Co., 18 Fed. R.2G0, 
 
 441. 261. See M'Coy v. Nelson, 121 U. S. 
 
 2 Steam Gauge & Lantern Co. v. Mc- 484. 
 Roberts, 26 Fed. R. 765. 5 Wilder v. McCormick, 2 Blatchf. 31, 
 
 8 Steam Gauge & Lantern Co. v. Mc- 35. 
 Roberts, 26 Fed. R. 765 ; American Bell 6 M'Millin v. St. Louis and Miss. Val- 
 
 Tel. Co. v. Southern Tel. Co., 34 Fed. R. ley Transp. Co., 18 Fed. R. 260. 
 803. 7 Spaeth v. Barney, 22 Fed. R. 828. 
 
 4 M'Millin v. St. Louis & Mississippi 8 Wollensak v. Reiher, 116 U. S. 96. 
 
 9
 
 130 BILLS. [CHAP. IV. 
 
 uncertainty and want of equity to a bill founded upon a re- 
 issued patent, when the only allegations concerning the re- 
 issue were, " that said Charles T. Day, having for good and 
 lawful cause and with the consent and approbation of your 
 orator, surrendered said letters-patent to the commissioner of 
 patents, and having made due application therefor, and having 
 in all things complied with the acts of Congress in such case 
 made and provided, did, on the eighteenth of February, 1879, 
 obtain new letters-patent, being reissued letters-patent, for the 
 same invention, for the residue of said term, and which were 
 marked ' reissue, No. 8,590,' and were issued in due form of 
 law to your orator, as assignee, under the seal of the patent 
 office of the United States, signed by the Secretary of the In- 
 terior and countersigned by the Commissioner of Patents, and 
 bearing date the day and } T ear aforesaid, as by the last mentioned 
 reissued letters-patent, ready here in court to be produced, will 
 appear ; ' r it was held that the bill was not objectionable. 9 The 
 court then said : " It is not necessary to aver, specifically, the 
 ground on which the original patent was surrendered. The re- 
 issue of letters-patent by the Commissioner is prima facie evidence 
 that such reissue is founded on sufficient cause, and is in accord- 
 ance with law. It is also presumed until the contrary is shown 
 that the Commissioner acted within his statutory authority." 10 
 A bill founded upon a reissued patent, which shows a delay of 
 more than two years in the application for the reissue, must 
 allege sufficient excuse for the delay. 11 So must a bill to com- 
 pel the issue of a patent which shows a delay of two 3 r ears in 
 prosecuting the application in the Patent Office. 12 It has been 
 held that a simple averment that the defendant has infringed 
 the patents above described is sufficient. 13 A libel to enjoin the 
 infringement of several distinct patents has been held multifa- 
 rious ; 14 but if all the patents are infringed in the use of or 
 manufacture of a single machine and it is so alleged, the bill is 
 
 9 Spaeth v. Barney, 22 Fed. R. 828. For 13 American Bell Tel. Co. v. Southern 
 
 a precedent of a hill for the infringement Tel. Co., 34 Fed. R. 803. See also Mc- 
 
 of an original patent, see McCoy v. Nel- Millin v. St. Louis & Mississippi Valley 
 
 son, 121 U. S. 484. Transportation Co., 18 Fed. R. 260 ; Mc- 
 
 w Colt, J., in Spaeth v. Barney, 22 Fed. Coy v. Nelson, 121 U. S. 484. 
 
 R. 828, 829. 14 Hayes v. Dayton, 8 Fed. R. 702 ; 
 
 " Wollensak v. Reiher, 115 U. S. 96. Shickle v. South St. Louis Foundry Co., 
 
 i* Gandy v. Marble, 122 U. S. 432. 22 Fed. R. 105.
 
 § 78.] GENERAL RULES OF EQUITY PLEADING. 131 
 
 good. 15 It has been said that the complainant " should aver 
 that said inventions are capable of conjoint as well as separate 
 nse and are so used by the defendants." 16 Persons who are act- 
 ing in concert as employees of the same corporation in the in- 
 fringement of a patent may be joined as defendants to the same 
 
 bill. 47 
 
 § 78. General Rules of Equity Pleading. — Otherwise, the rules 
 regulating the framing of a bill and, with the exceptions subse- 
 quently given, other pleadings in equity are substantially the 
 same as those of pleading at common law ; but more liberality is 
 used in their construction, 1 and the use of technical expressions 
 is never necessary. 2 If the plaintiff claim under a derivative title, 
 he must show the steps by which it has come into existence. 3 
 Where, however, there is an existing privity between the plaintiff 
 and defendant, independently of the plaintiff's title, which gives 
 the plaintiff a right to maintain the suit ; as, for example, if they 
 are landlord and tenant, or mortgagor and mortgagee, then it 
 is not necessary to state the plaintiff's title fully in the bill. 4 
 An allegation that the complainant acquired the title by pur- 
 chase from the assignee in bankruptcy of the original owner was 
 held sufficient, although it did not state that the assignee in 
 bankruptcy obtained an order from the court authorizing him to 
 make the sale. 5 It was said recently at circuit, that in a suit to 
 remove a cloud from the title of land generally, " it will be found 
 sufficient for the plaintiff to allege his possession and interest, or 
 estate in the land, or that he is the owner thereof in fee for life 
 or for years, and that he claims the same by a regular chain of 
 conveyances from some recognized and undisputed source of title, 
 as, the United States, or its donee under the donation act of 
 September 27, 1850, without setting out such conveyances or 
 setting them out in detail. But when there is reason to believe, 
 
 is Nourse v. Allen, 4 Blatchf. C. C. § 78. » Daniell's Ch. Pr. (2d Am. ed.) 
 
 376 ; Perry v. Corning, 7 Blatchf. C. C. 413. 
 
 195; Case v. Redfield, 4 McLean, 520; 2 Daniell's Ch. Pr. (2d Am. ed.) 414. 
 Gamewell Fire Alarm Telegraph Co. v. 8 Lord Digby v. Meech, Bunb. 195 ; 
 
 City of Chillicothe, 7 Fed. R. 351 ; Nellis Humphreys v. Tate, 4 Iredell's Eq. (N. C.) 
 
 v. McLanahan. 6 Fisher's Pat. Cas. 286. 220; Marshall v. Turnbull, 34 Fed. R. 
 
 16 Gamewell Fire Alarm Telegraph Co. 827 ; Daniell's Ch. Pr. (2d Am. ed.) 369, 
 v. City of Chillicothe, 7 Fed. R. 351 ; 370. 
 
 Nellis v. McLanahan, 6 Fisher's Pat. Cas. 4 Daniell's Ch. Pr. (2d Am. ed.) 370, 
 
 280. 371. 
 
 17 Poppenhusen v. Falke, 4 Blatchf. & Amory v. Lawrence, 3 Cliff. 523. 
 493.
 
 132 BILLS. [CHAP. IV. 
 
 as in this case and many others, that the rightfulness of the 
 defendant's claim depends on the validity or legal effect of some 
 link or links in the conveyances under which the plaintiff claims 
 title, it is very convenient, if not necessary, that the statement of 
 the plaintiff's case should contain the facts fully and in detail at 
 that point in the chain of his title where it conflicts with the 
 claim of the defendant. By so doing the necessity of future 
 amendments will he avoided, and the progress and dispatch of 
 the case promoted." 6 And a demurrer to a bill for a lack of 
 certainty in this respect has been sustained. 7 In a bill filed by 
 an executor or administrator, it seems to be sufficient to state 
 that the will has been proved, or letters of administration taken 
 out, " in the proper court," without naming it. 8 If, however, 
 the plaintiff undertake to name the court, and it be an im- 
 proper or insufficient one, the bill is demurrable. 9 If the plain- 
 tiff's title would be incomplete without the performance of some 
 preliminary act, its performance must be alleged, and a mere 
 statement that the title is complete is insufficient. 10 Thus, in 
 an English case, where the plaintiff sued as a shareholder of a 
 joint-stock company, and merely alleged in his bill " that he pur- 
 chased for valuable considerations divers shares, upon which the 
 instalment of five per cent had been paid, and that he ever since 
 has been, and now is, the holder of such shares ; "' while in an- 
 other part of the bill it was alleged " that by the rules of the 
 association, as set forth in the prospectus, no transfer of shares 
 would be valid in law or equity, unless the purchaser was approved 
 b}' a board of directors, and signed an instrument binding him to 
 observe the regulations," — it was held, on demurrer, that such 
 action on the part of the board and the purchaser was a condition 
 precedent to the transfer of the title to a share of stock ; and 
 that the bill was defective for not alleging such action. 11 So, a 
 complainant who rests his title upon a tax-deed must plead the 
 performance of the prerequisites to the validity of the deed. 12 
 When the nature of the conve} 7 ance through which the plaintiff, 
 
 6 Goldsmith v. Gilliland, 22 Fed. R.865, » Walburn v. Ingilby, 1 M. & K. 61 ; 
 868. Daniell's Ch. Pr. (2d Am. ed.) 369; Sto- 
 
 7 Goldsmith v. Gilliland, 22 Fed. R. 865. ry's Eq. PI. §§ 257, 257a, 258. 
 
 8 Humphreys v. Ingledon, 1 P. Wms. " Walburn v. Ingilby, 1 M. & K. 61. 
 752. 12 Greenwalt v. Duncan, 16 Fed. R. 
 
 9 Tourton v. Flower, 3 P. Wms. 369 ; 35. 
 Daniell's Ch. Pr. (2d Am. ed.) 364.
 
 § 79.] THE COMMON CONFEDERACY CLAUSE. 133 
 
 claims is such that by common law independent of a statute, as the 
 statute of frauds, for example, no deed, writing, or other formality 
 was essential to its validity, the English rule was that compliance 
 with such formality need not be alleged. 13 In this respect, equity 
 followed the rule at common law, that such statutory regulations 
 did not alter the form of pleadings. 14 If, however, it appeared 
 upon the face of the bill that such a formality had not been com- 
 plied with, the bill was demurrable upon that ground. 15 When, 
 however, a right had been originally enacted by statute, as a 
 right to land by devise, or in this country a patent or copyright, 
 a compliance with the statutory requirements had to be alleged 
 by one claiming under it. 16 
 
 "The rule in equity is that it is not sufficient to charge 
 a fraud simply, but you must charge also some injury as the 
 result of the fraud." 17 Where a bill shows apparent laches, it 
 should set forth the impediments to an earlier suit, the cause of 
 the complainant's previous ignorance, if any, of his rights, and 
 when he first knew of them. 18 The same rule is applied to a bill 
 upon a reissued patent showing a delay of more than two years in 
 the application for a reissue ; 19 and to a bill to compel the issue 
 of a patent which shows a delay of two years in prosecuting the 
 application in the Patent Office. 20 In construing this, as well as 
 all other parts of pleadings, every doubt is against the pleader ; 21 
 but contracts by corporations are presumed to be within their 
 charters until the contrary is shown. 22 When the bill contains 
 general and specific allegations as to the same matter, the general 
 allegations will be referred to those which are specific. 23 
 
 § 79. The Common Confederacy Clause. — The confederacy 
 part, which came next in order, is now expressly declared un- 
 necessary by the equity rules. 1 It is still, however, inserted by 
 some practitioners. The old form was substantially as follows : 
 
 13 Daniell's Ch. Pr. (2d Am. cd.) 416, ards v. Mackall, 124 U. S. 183; Gandy 
 417 ; Harrison v. Hogg, 2 Vesey, Jr., 327. v. Marble, 122 U. S. 432 ; Wollensak v. 
 
 14 Daniell's Ch. Pr. (2d Am. ed.) 416, Reiher, 115 U. S. 96. 
 
 417 ; Stephen on Pleading 313. W Wollensak v. Reiher, 115 U. S. 96. 
 
 15 Randall v. Howard, 2 Black, 585, 2° Gandy v. Marble, 122 U. S 432. 
 589; Daniell's Ch. Pr. (2d Am. ed.) 417; 2I Phelps v. McDonald, 99 U. S. 298, 
 Redding v. Wilkes, 3 Brown C. C. 401. 305. 
 
 16 Daniell's Ch. Pr. (2d Am. ed.) 419 ; *> Express Co. v. Railroad Co., 99 U. S. 
 Sullivan v. Redfield, 1 Paine, 441 ; Atwill 191, at page 199. 
 
 v. Ferrett, 2 Blatch. C. C. 39. 23 Ellis r.Cohnan, 25 Beav. 662 ; Story's 
 
 17 Linn v. Green, 17 Fed. R. 407. Eq. PI. § 37 a. 
 
 18 Badger v. Badger, 2 Wall. 87 ; Rich- § 79. > Rule 21.
 
 134 BILLS. [CHAP. IV. 
 
 " But now it is, may it please your honor, that the said A. B., 
 combining and confederating with divers persons," or, if there are 
 several defendants, " combining and confederating with the said 
 C. D. and E. F., and with divers other persons, ... at present 
 unknown to your orator, whose names when discovered your 
 orator prays he may be at liberty to insert herein, with apt words 
 to charge them as the parties defendant hereto, and, contriving 
 how to wrong and injure your orator in the premises, he the said 
 A. B. at times pretends that." 2 " This practice is said to have 
 arisen from the idea that without such a charge parties could not 
 be added to the bill by amendment, and in some cases perhaps 
 the charge has been inserted with a view to give the court juris- 
 diction." 3 It is mere surplusage, and being a conclusion of law 
 when inserted need not be answered. 4 
 
 § 80. The Charging Part. — Next followed formerly the charg- 
 ing part of the bill, which also has been declared unnecessary by 
 the equity rules, 1 but is occasionally used. " It usuallv consists 
 of some allegation or allegations, which set forth the matters of 
 defence, or excuse, which it is supposed the defendant intends 
 or pretends to set up, to justify his non-compliance with the 
 plaintiff's right or claim ; and then charges other matters, which 
 disprove or avoid the supposed defence or excuse. It is some- 
 times also used for the purpose of obtaining a discovery of the 
 nature of the defendant's case, or to put in issue some matter, 
 which it is not for the interest of the plaintiff to admit ; for which 
 purpose the charge of the pretence of the defendant is held to be 
 sufficient." 2 If such averments are considered necessary now, the 
 proper method of pleading is to include them in the narrative part 
 of the bill. 3 
 
 § 81. The Jurisdiction Clause- — Then, came the jurisdiction 
 clause. This ran substantially as follows : " All which actings, do- 
 ings, and pretences of the said confederates are contrary to equity 
 and good conscience ; and tend to the manifest wrong, injury, and 
 oppression of your orator in the premises. In tender considera- 
 tion whereof, and forasmuch as your orator is entirely remediless 
 by the strict rules of the common law, and can only have relief 
 in a court of equity, where matters of this nature are properly 
 
 2 Story's Eq. PI. § 29, note 2. 2 Story's Eq. PL § 31. See Mitford's 
 
 8 Mitford's PI. ch. 1, § 2. PI. eh. 1, § 3. 
 
 4 Story's Eq. PI. § 29. s Rule 21 ; Partridge v. Haycraft, 11 
 
 § 80. ! Rule 21. Ves. 574. See § 67.
 
 § 82.] THE INTERROGATORY CLAUSE. 135 
 
 cognizable; to the end, therefore," * &c. It is still the common 
 usage to insert a short clause of this character, although it has 
 been declared by the equity rules unnecessary.''' 
 
 § 82. The Interrogatory Clause. — The interrogatory clause 
 which followed was of much more importance formerly, when 
 parties to a suit could not testify in actions at common law, than 
 it is at the present time. Yet, in addition to the inclusion in the 
 prayer for relief of a request that the defendants be compelled 
 to answer the bill, it is still not unusual to require them to 
 answer specific interrogatories. The equity rules provide as 
 follows : " The interrogatories contained in the interrogating part 
 of the bill must be divided as conveniently as may be from each 
 other, and numbered consecutively 1, 2, 3, &c. ; and the inter- 
 rogatories which each defendant is required to answer shall be 
 specified in a note at the foot of the bill, in the form to the 
 effect following, that is to say: 'The defendant (A. B.) is re- 
 quired to answer the interrogatories numbered respectively 1, 2, 
 3, &c.' " 1 " The note at the foot of the bill, specifying the in- 
 terrogatories which eacli defendant is required to answer, shall 
 be considered and treated as part of the bill ; and the addition 
 of any such note to the bill, or any alteration in or addition to 
 such note, after the bill is filed, shall be considered and treated 
 as an amendment to the bill." 2 " Instead of the words of the bill 
 now in use preceding the interrogatory part thereof, 3 and begin- 
 ning with the words ' to the end therefore,' there shall hereafter 
 be used words in the form or to the effect following: ' To the 
 end, therefore, that the said defendants may, if they can, show 
 why your orator should not have the relief hereby prayed, and 
 may, upon their several corporate oaths and according to the 
 best and utmost of their several and respective knowledge, re- 
 
 § 81. 1 Story's Eq. PI. § 34, and notes, repeated, and they thereunto distinctly 
 
 2 Rule 21. interrogated; and that not only to the 
 
 § 82. 1 Rule 41. best of their respective knowledge and 
 
 2 Rule 42. remembrance, but also as to the best of 
 
 8 The old form was as follows : " To their several and respective information, 
 
 the end, therefore, that the said A. B. hearsay, and belief ; and more especially 
 
 and the rest of the confederates, when that they may answer and set forth 
 
 discovered, may upon their several and whether, &c. ; or they may set forth and 
 
 respective corporate oaths, full, true, discover whether they do not know, have 
 
 direct, and perfect answer make, to all heard, or are informed, and in their con- 
 
 and singular the matters hereinbefore science believe that," &c. Story's Eq. 
 
 stated and charged, as fully and particu- PI. § 35, note 2. 
 
 larly as if the same were hereinafter
 
 136 BILLS. [CHAP. IV. 
 
 merabrance, information, and belief, full, true, direct, and perfect 
 answer make to each of the several interrogatories hereinafter 
 numbered and set forth, as by the note hereunder written they 
 are respectively required to answer ; that is to say, — 
 
 " ' Whether, &c. 
 
 » ' Whether, &c.' " 4 
 
 No interrogatory need be answered or will be sustained which 
 does not refer to some matter alleged in the narrative part of the 
 bill, 5 but a number of interrogatories may be founded upon a 
 sino-le allegation. 6 The defendant need not answer an inter- 
 rogatory if by so doing he would subject himself to a penalty 
 or a forfeiture, or to punishment for a crime. 7 When there are 
 no specific interrogatories the defendants are still bound to an- 
 swer, either admitting or denying every part of the bill, as if 
 they had been specifically interrogated thereabout. 8 An answer 
 under oath to the whole of the bill, or to all but certain specified 
 interrogatories, may be expressly waived by the plaintiff. 9 Such 
 waiver is usually inserted in the prayer for relief or for process. 
 
 § 83. The Prayer for Relief. — " The prayer of the bill shall ask 
 the special relief to which the plaintiff supposes himself entitled, 
 and also shall contain a prayer for general relief. And if an 
 injunction, or a writ of ne exeat regno, or any other special order, 
 pending the suit is required, it shall also be specially asked for." 1 
 Under the prayer for general relief the court will usually grant 
 any relief 2 other than an interlocutory order, which is consistent 
 with, and a ground for which is included in, the allegations of 
 the bill, 3 and not inconsistent with the prayer for special relief. 4 
 It seems that if there be no objection to the specific relief prayed 
 
 4 Rule 43. For an excellent statement 9 Amendment of 1851 to Rule 41. 
 
 of the reasons for the use of specific in- § 83. * Rule 21. Compare Blomfield v. 
 
 terrogatories, see Report of Chancery Eyre, 8 Beav. 250, 259. 
 
 Commissioners, 9th March, 1826, Appen- a Tayloe v. Merchants' Fire Ins. Co., 
 
 dix, pp. 1,2; Story's Eq. PI. § 38, note 3. 9 How. 390; Stewart v. Chesapeake & 
 
 5 Attomev-General v. Whorwood, 1 Ohio Canal Co., 1 Fed. R. 361 ; County 
 Ves. 534; Daniell's Ch. Pr. (2d Am. ed.) of Mobile v. Kimball, 102 U. S. 691; 
 432, 433. Chicago, St. L. & N. 0. R. R. Co. v. Ma- 
 
 G Faulder ?•. Stuart, 11 Ves. 296 ; Bui- comb, 2 Fed. R. 18 ; Adams v. Kehlor 
 
 lock v. Richardson, 11 Ves. 375; Story's Milling Co., 36 Fed. R. 212. 
 Eq. PI. § 37. 3 English v. Foxall, 2 Pet. 595; Curry 
 
 t Stewart v. Drasha, 4 McLean, 563 ; v. Lloyd, 22 Fed. R. 258, 265. 
 Atwill v. Ferrett, 2 Blatchf. C. C. 39; * Hiern v. Mill, 13 Ves. 118; Soden 
 
 United States v. White, 17 Fed. R. 561, v. Soden there cited ; Grimes v. French, 
 
 565. 2 Atk. 141 ; Curry v. Lloyd, 22 Fed. R. 
 
 s Amendment of 1850 to Rule 40. 258, 265.
 
 § 84] WAIVERS AND OFFERS. 137 
 
 for, the plaintiff cannot at the hearing abandon that and obtain 
 a decree for different relief. 5 It has been held in England that, 
 in some cases of fraud, where no other relief can be given against 
 a party deeply involved in the fraud charged by the bill, the 
 payment of the costs of the suit by that party ought to form the 
 subject of a specific prayer, and that otherwise his demurrer to 
 the bill will be sustained. 6 In a case where the bill contained 
 allegations showing threatened injury to rights of property, not 
 however mentioned as an independent ground of relief, while it 
 was mainly occupied with complaints of a threatened invasion 
 of rights of a political nature, as the specific prayers for relief 
 were confined to the protection of the political rights, although 
 the bill contained a general prayer for relief, the court refused 
 to consider the allegations concerning the threatened injury to 
 property. 7 A bill may, however, pray relief in the alternative, 
 when it is said to have a double aspect. 8 The prayer for general 
 relief, Mr. Robins, " an eminent counsel," used to say, was " the 
 best prayer after the Lord's Prayer." 9 It is usually in one of 
 the two following forms : " And that your orator shall have such 
 other or further or other and further relief, in the premises, as 
 to this court shall seem meet;" or "that your orator may be 
 further and otherwise relieved in the premises according to 
 equity and good conscience." If a different state of facts, under 
 which the complainant is entitled to relief, appears upon the 
 hearing, the court may allow the case to stand over, and give 
 the plaintiff leave to amend his bill in conformity with them, and 
 then obtain relief. 10 And if the complainant be an infant or the 
 representative of a charity, it would formerly grant relief without 
 regard to the allegations in the bill. 11 
 
 § 84. Waivers and Offers. — It is customary to insert in the 
 prayer for relief any waiver or offer which the plaintiff desires to 
 make ; 1 although there is no reason why that should not be set 
 
 6 Allen v. Coffman, 1 Bibb (Ky.), 469 ; note b ; Dormer v. Fortescue, 3 Atk. 124 ; 
 
 Pillow v. Pillow, 5 Yerg. (Tenn.), 420. Story's Eq. PI. § 41, n. 1. 
 
 6 Le Texier v. The Margravine of 10 Beaumont v. Boultbee, 5 Ves. 485 ; 
 Anspach, 15 Ves. 159, 164; Daniell's Ch. Palk v. Lord Clinton, 12 Ves. 63; Dan- 
 Pr. (2d Am. ed.) 441. iell's Ch. Pr. (2d Am. ed.) 439, 440. 
 
 7 Georgia v. Stanton, 6 Wall. 50. " Stapilton v. Stapilton, 1 Atk. 2; 
 
 8 Shields v. Barrow, 17 How. 130, 144; Attorney-General v. Jeanes, 1 Atk. 355; 
 Kilgour v. New Orleans Gas-Light Co., Story's Eq. PI. § 40, note. 
 
 2 Woods, 144, 148; Gaines v. Chew, 2 § 84. * Daniell's Ch. Pr. (2d Am. ed.) 
 
 How. 019, 643. See § 70. 443. 
 
 9 Manaton v. Molesworth, 1 Eden, 26,
 
 138 BILLS. [chap. IV. 
 
 forth in the narrative part of the bill. " If the complainant in 
 his bill shall waive an answer in the oath, or shall only require 
 an answer under oath with regard to certain specified interroga- 
 tories, the answer of the defendant, though under oath, except 
 such part thereof as shall be directly responsive to such inter- 
 rogatories, shall not be evidence in his favor, unless the cause be 
 set down for hearing on bill and answer only ; but may never- 
 theless be used as an affidavit, with the same effect as heretofore, 
 on a motion to grant or dissolve an injunction, or on any other 
 incidental motion in the cause. But this shall not prevent a 
 defendant from becoming a witness in his own behalf under sec- 
 tion 3 of the Act of Congress of July 2, 1864." 2 It rarely 
 happens that advantage of this provision is not taken by a waiver 
 inserted here, or more frequently in the prayer of process, in 
 order to avoid the rule, that otherwise an allegation responsive 
 to the bill in a sworn answer is presumed to be true, unless re- 
 butted by the testimony of two witnesses, or one witness and 
 strong corroborating circumstances. 3 In accordance with the 
 maxim that he who seeks equity must do equity, a court of 
 equity often refuses relief to one seeking its aid, unless upon 
 condition that he shall do what it considers equitable to the 
 defendant, or sometimes even to a third person. 4 In some cases 
 it enforces this by the entry of a conditional decree without 
 reference to the pleadings. 5 But its more usual practice is to 
 insist that the plaintiff shall offer to perform, or, in some cases, 
 allege the performance of, the equitable act that it requires of 
 him in his bill, which otherwise will be demurrable. Thus, a bill 
 to cancel securities claimed to be usurious, or otherwise rendered 
 void by a statute, must contain an offer by the plaintiff to pay 
 the defendant the money he has received therefor with lawful 
 interest. 6 And it seems that a State statute abolishing this rule 
 of equity will not be followed by a United States court, though 
 the suit concerns securities made in such State, at least not when 
 the court is held in another State. 7 So a bill to redeem a mort- 
 gage must contain an offer to pay what is due thereon, though 
 
 2 Amendment of 1871 to Rule 41. 436; Tupper v. Powell, 1 J. Ch. (N. Y.) 
 
 8 Vigel v. Hopp, 104 U. S. 441. 439 ; Daniell's Ch. Pr. (2d Am. ed.) 443. 
 * Fosdick v. Schall, 99 U. S. 235. 7 Matthews v. Warner, 6 Fed. R. 461 ; 
 
 5 Walden v. Bodley, 14 Pet. 156, 164, 8. c. affirmed upon another point, 112 
 165. U. S. 600. 
 
 6 Mason v. Gardiner, 4 Brown C. C.
 
 § 84] WAIVEES AND OFFERS. 139 
 
 the particular sum need not be specified. 8 A bill to set aside a 
 judicial sale as void must be accompanied by a tender of the 
 purchase-money with interest, provided it was applied for the 
 benefit of the estate, unless that money has been first repaid, 
 which the court might require to be done before the bill is filed. 9 
 A bill to set aside a tax sale must contain an offer to repay 
 the purchaser at least all legal taxes on the property paid by him, 
 both those for which the property was sold and those subse- 
 quently levied thereon and paid by him, with interest upon each 
 sum. 10 A bill to restrain the collection of State taxes must be 
 preceded by payment of " what is conceded to be due, or what 
 can be seen to be due on the face of the bill, or be shown by 
 affidavits, whether conceded or not, before the preliminary in- 
 junction should be granted." u If the whole tax is claimed to 
 be void as improperly assessed, it seems that the complainant 
 must tender the amount he would owe if a proper assessment 
 had been made. 12 If the proper officer refuses to receive a 
 part of the tax, it must be tendered, and tendered without the 
 condition annexed of a receipt in full. 13 A bill to compel the 
 specific performance of a contract by a defendant should, it 
 seems, contain an offer by the plaintiff to perform his part there- 
 of. 14 And formerly it was, 15 but no longer is, 16 required that a 
 bill for an account should contain an offer on the part of the 
 plaintiff to pay the balance, if any, found due against him. But 
 a bill filed by the United States to vacate a patent for public 
 lands as obtained by fraud, need not contain an offer to return 
 the money paid therefor by the fraudulent patentee. 17 Nor need 
 a bill to obtain relief against an infringement of a copyright con- 
 tain a waiver of the complainant's statutory right to a forfeiture 
 
 8 Story's Eq. PI. § 187 a; Harding v. " Daniell's Ch. Pr. (2d Am. ed.) 442; 
 Pingey, 10 Jurist n. s. 872 ; Perry v. Carr, Stapylton v. Scott, 13 Ves. 425; Fife v. 
 41 N. H. 371. Clayton, 13 Ves. 546. 
 
 9 Davis v. Gaines, 104 U. S. 386. « Godbolt v. Watts, 2 Anst. 543 ; Dan- 
 i" Gage v. Pumpelly, 115 U. S. 454. iell's Ch. Pr. 442. 
 
 11 State Railroad Tax Cases, 92 U. S. 16 Colombian Government v. Roths- 
 575, 617. child, 1 Simons, 94, 103 ; Wells v. Strange, 
 
 12 State Railroad Tax Cases, 92 U. S. 5 Ga. 22. 
 
 575,617; National Bank v. Kimball, 103 1 7 United States v. Minor, 114 U. S. 
 
 U. S. 732. 233. See also Moffat v. United States, 
 
 13 State Railroad Tax Cases, 92 U. S. 112 U. S. 24; United States v. White, 
 575, 617 ; National Bank v. Kimball, 103 17 Fed. R. 561, 565 ; United States v. 
 U. S. 732. Pratt Coal & Coke Co., 18 Fed. R. 708.
 
 140 BILLS. [CHAP. IV. 
 
 of the piratical plates. 18 It is, however, a rule in equity, that 
 no person will be compelled to discover that which may expose 
 him to a penalty or forfeiture. 19 A discovery of such matters 
 can only be compelled when the complainant is the only person 
 who can enforce the penalty or forfeiture, and he is willing to 
 waive it ; 20 as, for example, in a case of infringement of copy- 
 right. 21 An omission of a waiver, tender, or offer, whenever con- 
 sidered necessary, is a ground for demurrer; 22 but leave to 
 amend is in such cases usually given. And in many, but not 
 all cases, 23 when no actual tender is required, a general offer to do 
 whatever equity requires in the premises seems to be sufficient. 
 In some cases the court will give relief by a conditional decree 
 imposing terms upon the complainant, although no offer is con- 
 tained in his bill. 24 
 
 § 85. The Prayer of Process. — The prayer of process usuall}' 
 requests the issue of a subpoena to compel the defendants to 
 appear and answer and abide the judgment of the court. " The 
 prayer for process of subpoena in the bill shall contain the 
 names of all the defendants named in the introductory part of 
 the bill, and if any of them are known to be infants under age, 
 or otherwise under guardianship, shall state the fact, so that the 
 court may take order thereon as justice may require, upon the 
 return of the process. If an injunction or a writ of ne exeat 
 regno, or any other special order pending the suit, is asked for in 
 the prayer for relief, that shall be sufficient, without repeating the 
 same in the prayer for process." 1 " The plaintiff may complain 
 and tell stories of whom he pleases, but they only are defendants 
 against whom process is prayed." 2 It has, however, been held 
 that the omission in the prayer of process of the name of a 
 defendant otherwise sufficiently described in the bill is waived 
 by his general appearance, and that no other defendant can take 
 
 18 Farmer v. Calvert Lithographing Co., 22 United States v. Pratt Coal & Coke 
 1 Flippin, 228. Co., 18 Fed. R. 708. 
 
 19 Stewart v. Drasha, 4 McLean, 563 ; 23 State Railroad Tax Cases, 92 TJ. S. 
 Atwill v. Ferrett, 2 Blatchf. 39 ; United 575, 617. 
 
 States v. White, 17 Fed. R. 561, 565. » Walden v. Bodley, 14 Pet. 156, 164, 
 
 2 Lord Uxbridge v. Staveland, 1 Ves. 165. 
 
 Sen. 56 ; Atwill v. Ferrett, 2 Blatchf. § 85. * Rule 23. Segee v. Thomas, 3 
 
 39. Blatchf. C C.ll ; Buerk v. Imhaeuser, 8 
 
 2i Atwill v. Ferrett, 2 Blatchf. 39 ; Fed. R. 457. 
 Farmer v. Calvert Lithographing Co., 1 2 Lord Chancellor Parker in Fawkes 
 
 Flippin, 228, 233. v. Pratt, 1 P. Wms. 593.
 
 § 86.] THE SIGNATURE TO A BILL. 141 
 
 advantage of the defect. 3 If a party is sought to be sued in 
 both his individual and a representative capacity, process should 
 be asked against him in both capacities. Otherwise, it seems, 
 that he would be held to be a party only in that capacity in 
 which he was therein referred to, even though in the subpoena 
 and in the introduction to the bill he were named as a defendant 
 in both capacities. 4 If process be prayed against a defendant in 
 a representative capacity and the subpoena be issued against him 
 generally, the bill is not demurrable. 5 The proper remedy is a 
 motion to set aside the subpoena. A bill without a prayer of 
 process is demurrable. 
 
 § 86. The Signature to a Bill. — " Every bill shall contain the 
 signature of counsel annexed to it, which shall be considered as 
 an affirmation on his part that, upon the instructions given to 
 him and the case laid before him, there is good ground for the 
 suit in the manner in which it is framed." 1 This practice began, 
 it is said, in the time of Sir Thomas More. 2 Before that time it 
 was the practice for a master in chancery to examine the bill and 
 determine whether it was better to dismiss it originally or retain 
 it by subpoena. 3 A signature upon the back of the bill has been 
 held to be sufficient. 4 The remedy for a defect in this respect 
 is by a motion to take the bill off the file, 5 or by demurrer. 6 
 The court may of its own motion order the bill taken off the 
 file. 7 Leave to amend by adding the signature is always 
 granted. 8 If the defendant should answer without taking the 
 objection, such a defect would probably be held waived. 9 If the 
 complainant sued in person the signature of counsel would proba- 
 bly be dispensed with. 10 A bill is also usually signed by the 
 solicitor, who may be the same person as the counsel, but not by 
 the plaintiff unless he sue in person. 
 
 8 Buerk v. Imhaeuser, 8 Fed. R. 457. 4 Dwight v. Humphreys, 3 McLean, 
 
 * Carters. Ingraham,43 Ala. 78. But 104. 
 
 see Brasher v. Van Cortlandt, 2 J. Ch. 5 Dillon v. Francis, 1 Dickens, 68. 
 
 (N. Y.) 247. 6 Kirkley v. Burton. 5 Madd. 378; 
 
 6 Walton v. Herbert, 3 Green Ch. Dwight v. Humphreys, 3 McLean, 104. 
 
 (N. J.) 73. 7 French r. Dear, 5 Ves. 547. 
 
 Elmendorf v. Delancey, 1 Hopkins 8 Kirkley v. Burton, 5 Madd. 378; 
 
 (N. Y.), 555. Dwight v. Humphreys, 3 McLean, 104. 
 
 § 86. i Rule 24. 9 See U. S. R. S. § 954. 
 
 2 Hargrave's Law Tracts, 302; Dan- w See U. S. R. S. § 747 ; 1 Hoffman's 
 
 iell's Ch. Pr. (2d Am. ed.) 357. Ch. Pr. 97. 
 
 8 1 Hargrave's Law Tracts, 302 ; Dan- 
 iell's Ch. Pr. (2d Am. ed.) 357.
 
 142 BILLS. [CHAP. IV. 
 
 § 87. Affidavits to Bills. — An affidavit must be annexed to 
 the bill in the following cases and no others, although a super- 
 fluous affidavit will not make the bill bad : A bill to obtain the 
 benefit of an instrument upon which an action at law would lie, 
 were it not either lost or out of the possession of the complainant, 
 and believed to be in that of the defendant, must be supported 
 by an affidavit of those facts which are necessary to give the 
 court jurisdiction. 1 A bill to perpetuate the testimony of wit- 
 nesses, or to take testimony de bene esse, must be supported by 
 an affidavit stating the reasons which render such a proceeding 
 necessary. 2 A bill of interpleader, and perhaps also a bill in the 
 nature of an interpleader, should be supported by an affidavit by 
 the plaintiff that he does not collude with either of the defend- 
 ants; 3 or if the plaintiff be a corporation, by one of its officers, 
 that, to the best of his knowledge and belief, the plaintiff does 
 not so collude. 4 " Every bill brought by one or more stock- 
 holders in a corporation against the corporation and other parties, 
 founded on rights which may properly be asserted by the cor- 
 poration, must be verified under oath." 5 Every bill which it is 
 desired to use in support of a motion for a stay order, special in- 
 junction, substituted service, or other interlocutory application, 
 other than one for a common injunction, must be accompanied 
 by an affidavit verifying the bill itself or the substance of its 
 allegations. 6 In the first three instances where an affidavit is 
 required, the defendant can only take advantage of the defect by 
 demurrer." By plea or answer the omission will be waived. 8 
 
 § 88. Bills of Interpleader. — A bill of interpleader is a petition 
 filed by a disinterested person holding a fund or thing to which 
 two or more who are made defendants set up conflicting claims, 
 between whom he cannot decide without incurring the risk, if he 
 delivers the property to one, of being finally obliged to pay the 
 other damages for having done so. 1 It can only be filed by one 
 who claims no interest in the property in question, and who seeks 
 
 § 87. i Walmsley v. Child, 1 Ves. Sen. 6 See chapter XV. 
 
 343; Whitfield v. Fausset, 1 Ves. Sen. 7 Findlay v. Hinde, 1 Pet. 241, 244; 
 
 302; Story's Eq. PI. §§ 313, 477; Dan- Crosse v. Bedingfield, 12 Simons, 35; Dan- 
 
 iell's Ch. Pr. (2d Am. ed.) 449, 450. iell's Ch. Pr. (2d Am. ed.) 453. 
 
 2 Philips v. Carew, 1 P. Wms. 117; 8 Findlay v. Hinde, 1 Tet. 241, 244; 
 
 Daniell's Ch. Pr. (2d Am. ed.) 452. Crosse v. Bedingfield, 12 Simons, 35. 
 
 8 Metcalf v. Hervey, 1 Ves. Sen. 248. § 88. > Mitford's Eq. PI. ch. 1 ; Story's 
 
 * Bignold v. Audland, 11 Simons, 23. Eq. PI. §§ 291-297 ; Daniell's Ch. Pr. (2d 
 
 5 Rule 94. Am. ed.) ch. xxxii.
 
 § 88.] BILLS OF INTERPLEADER. 143 
 
 no other relief than leave to deposit it in the care of the court, 
 and be relieved from all danger of further vexation concerning 
 the same. 2 The conflicting claims must be doubtful. 3 The 
 claimants must seek the same thing, not merely the same 
 amounts under different contracts. 4 A tenant or agent may not, 
 by filing such a bill, dispute the title of his lessor or principal 
 when a demand is made upon him by a stranger claiming under 
 title paramount. 5 He may, however, thus obtain relief when 
 different persons claim under assignments from the person to 
 whom he first owed the debt. 6 A bill of interpleader may be 
 filed before or after proceedings at law have been begun against 
 the complainant ; 7 but no injunction can be granted to restrain a 
 proceeding already begun in a State court; 8 nor, according to 
 the English rule, to stay proceedings in ejectment in any court. 9 
 If a suit in equity have been alread}' begun against the stake- 
 holder, he might perhaps obtain relief by a petition therein ; 10 but 
 the more prudent course is for him to file a new bill. 11 The fact 
 that one of the conflicting claims is actionable at law and the 
 other is purely equitable, will not deprive him of relief. 12 The 
 enactment of a State statute giving similar relief upon motion 
 by the defendant to an action at law, does not deprive equity of 
 its original jurisdiction. 13 The most common kind of interpleader 
 suits at the present time are those brought by insurance com- 
 panies against conflicting claimants to the proceeds of policies is- 
 sued by them. 14 A bill of interpleader should state the manner 
 in which the plaintiff obtained possession of the property in 
 question, and admit that he has no interest therein. It should 
 set forth the claims of the defendants, showing that they con- 
 flict, and that he is ignorant of their respective rights, and cannot 
 
 2 Killian v. EbbinghauB, 110 U.S. 568; 1 Richards v. Salter, 6 J. Ch. (N. Y.) 
 
 Langston v. Boylston, 2 Ves. Jr. 101 ; 445. 
 Mohawk & Hudson It. R. Co. v. Clute, 8 U. S. R. S. § 720. 
 4 Paige, (N. Y.) 384. » Metcalf v. Hervey, 1 Ves. Sen. 248. 
 
 8 Shaw v. Coster, 8 Paige (N. Y.), 339 ; 10 Badeau v. Rogers, 2 Paige (N. Y.), 
 
 Cochrane v. O'Brien, 2 Jones & La T. 209. 
 380; Story's Eq. PI. § 292. " Birch v. Corbin, 1 Cox Eq. 141. 
 
 * Hoggart v. Cults, 1 Cr. & Ph. 197; B Richards U.Salter, 6 J. Ch. (N.Y.) 445. 
 Story's Eq. PI. § 293. " Barry v. Mutual Life Ins. Co., 63 
 
 6 Dungey v. Angove, 2 Ves. Jr. 304, N. Y. 536 ; Wood v. Swift, 81 N. Y. 31, 35 ; 
 
 310 ; Lowe v. Richardson, 3 Madd. 277 ; Board of Education v. Scoville, 13 Kan. 
 
 Story's Eq. PI. § 295. 17, 30 ; Prudential Assurance Co. v. 
 
 • Cowtan v. Williams, 9 Ves. 107 ; Thomas, L. R. 8 Ch. App. 74, 77. 
 Clarke i\ Byne, 13 Ves. 386 ; Hoggart v. H Spring v. South Carolina Ins. Co., 
 Cutts, 1 Cr. & Ph. 197, 205. 8 Wheat. 268.
 
 144 BILLS. [CHAP. IV. 
 
 determine between them without hazard to himself. It should 
 offer to deposit the fund or other property in the custod}^ of the 
 court ; and conclude with a prayer that upon such deposit the 
 defendants may be enjoined from further molesting him about 
 the matter in question ; that they be required to interplead and 
 settle their respective rights among themselves; and that he may 
 have his costs out of the fund, if there be one, otherwise from 
 the defendants. 15 The bill must be accompanied by an affidavit ; 
 which, when filed by a natural person, should be sworn to by 
 him, and state that " this bill is not filed in collusion with either 
 of the defendants named, but merely of his own accord for relief 
 in this Honorable Court." 16 If a corporation be the complainant, 
 one of its officers should make the affidavit, swearing that, to the 
 best of his knowledge and belief, the corporation does not col- 
 lude with either of the defendants. 17 The omission of the affidavit 
 is a ground for a demurrer. 18 The bill should also conform to 
 the provisions of the rules regulating original bills. No other 
 step can be taken in the cause until after deposit in court of the 
 fund or other property in dispute. 19 It has, however, been held 
 in England that a bill is not demurrable for the omission of an 
 offer so to do. 20 It is better practice to obtain an order ex parte 
 permitting such payment. 21 When that is done, an injunction 
 will be granted resti'aining the defendants from suing the plain- 
 tiff, and from continuing any action already begun touching the 
 matter in dispute. 22 The injunction is usually granted to take 
 effect upon payment of the fund into court. 23 Under special 
 circumstances, however, a stay order might be granted until the 
 complainant had an opportunity to do so. 24 Upon an argument 
 to dissolve this injunction before hearing, it seems that the defend- 
 ants cannot contradict the affidavit that there is no collusion; 25 
 but a reference may be directed when such a charge is made, 
 
 15 Mitford's Eq. PI. ch. 1 ; Story's Eq. 21 Williams v. Walker, 2 Richardson 
 PI §§ 291-297. Eq. (S. C.) 291. 
 
 16 Metcalf v. Hervey, 1 Ves. Sen. 248. 22 Sieveking v. Behrens, 2 Myl. & Cr. 
 
 17 Bignold i; Audland, 11 Simons, 23. 581. 
 
 " Metcalf v. Hervey, 1 Ves. Sen. 248 ; 23 Sieveking v. Behrens, 2 Myl. & Cr. 
 
 Tobin v. Wilson, 3 J. J. Marsh. (Ky.) 67 ; 581. 
 
 Mitford's Eq. PI. ch. 1. a Sieveking v. Behrens, 2 Myl. & Cr. 
 
 19 Meux v. Bell, 6 Simons, 175 ; Wil- 581 ; U. S. R. S. § 718. 
 
 Hams v. Walker, 2 Richardson Eq. (S.C.) 2S Stevenson v. Anderson, 2 Ves. & B. 
 291. 407 ; Manby v. Robinson, L. R. 4 Oh. App. 
 
 20 Meux v. Bell, 6 Simons, 175. 347 ; Fahie t;. Lindsay, 8 Oreg. 474.
 
 § 88.] BILLS OF INTERPLEADER. 145 
 
 and at the hearing collusion may be shown. 26 In England, a bill 
 of interpleader can be successfully maintained though all the de- 
 fendants are beyond the jurisdiction of the court. 27 Such suits are 
 usually heard on bill and answers ; although there is no reason 
 why testimony should not be taken. If at the hearing the cause 
 is ripe for a decision, the court will then decide the controversy 
 between the defendants. 28 If not, it will enter a decree dis- 
 missing the plaintiff with his costs, enjoining the defendants in 
 accordance with the prayer of the bill, and directing them to 
 interplead. 29 If the claims on both sides are purely legal, an 
 action or an issue at law- will usually be directed. If one of 
 them is of an equitable nature, and sometimes even when both 
 are legal, a reference to a master is usually directed. 30 At the 
 hearing, each defendant may read the other's answer against 
 him. 31 If one of them has allowed the bill to be taken as con- 
 fessed against him, this is considered as an admission that the 
 bill was properly filed, and that he has made an improper claim 
 against the fund. 32 If, after answer, one of them defaults at the 
 hearing, the court will enter a decree after hearing the other. 33 
 The plaintiff, if successful, is entitled to his costs out of the fund, 
 if there be one. 34 Otherwise, from the defendant whose claim 
 is finally held bad. 35 These costs, as well as the costs of the 
 successful defendant, must eventually be paid by him whose 
 claim is finally dismissed. 36 It has been said that when the bill 
 is dismissed, there can be no further proceedings in the cause 
 as between the defendants ; not even by consent ; inasmuch as 
 the court has thereby lost jurisdiction. 37 After a decree in the 
 plaintiff's favor, the cause is terminated as to him ; and in case 
 
 26 Manby v. Robinson, L. R. 4 Ch. App. 81 Bowyer v. Pritchard, 11 Price, 103; 
 347 ; Langston v. Boylston, 2 Ves. Jr. 101 ; Daniell's Ch. Pr. 1765. 
 
 Dungey v. Angove, 2 Ves. Jr. 304. 32 Badeau v. Rogers, 2 Paige (N. Y.), 
 
 27 Martini us y. Helrauth, G.Cooper, 248; 209; Fairbrother v. Prattent, 1 Daniel, 
 Stevenson v. Anderson, 2 Ves. & B. 412 ; 64. 
 
 Contra, Herndon v. Ridgeway, 17 How. & Hodges v. Smith, 1 Cox Eq. 357. 
 
 424; and see §96. ** Dunlop v. Hubbard, 19 Ves. 205; 
 
 28 Daniell's Ch. Pr. (2d Am. ed.) 1765; Dowson v. Hardeastle, 2 Cox Eq. 279. 
 Angell v. Hadden, 16 Ves. 202 ; City Bank ™ Aldridge v. Mesner, 6 Ves. 418 ; Ma- 
 tt. Bangs, 2 Paige (N. Y.), 570. son v. Hamilton, 5 Simons, 19; Daniell's 
 
 » Daniell's Ch. Pr. (2d Am. ed.) 1765; Ch. Pr. 1767. 
 
 Angell v. Hadden, 16 Ves. 202; City 30 Mason v. Hamilton, 5 Simons, 10; 
 
 Bank v. Bangs, 2 Paige (N. Y.), 570. Cowtan v. Williams, 9 Ves. 107 ; Daniell's 
 
 80 Daniell's Ch. Pr. 1765; Story's Eq. Ch. Pr. (2d Am. ed.) 1766, 1767. 
 
 Jur. § 822 ; Angell v. Hadden, 16 Ves. 202 ; 87 Jennings v. Nugent, 1 Molloy, 134. 
 City Bank v. Bangs, 2 Paige (N. Y.), 570. 
 
 10
 
 146 BILLS. [CHAP. IV. 
 
 of his subsequent death the cause will proceed without a 
 revivor. 38 
 
 § 89. Bills in the Nature of Interpleader. — Where the plaintiff 
 claims for himself some interest in the fund or matter in ques- 
 tion, or does not admit the whole of a defendant's claim, or the 
 defendants claim different amounts, although a bill of inter- 
 pleader may not, a bill in the nature of an interpleader may, 
 perhaps, be sustained. 1 The frame of such a bill and the pro- 
 ceedings thereunder should conform, mutatis mutandis, to those 
 of a strict bill of interpleader. After payment of what he admits 
 to be due, a decree may be entered discharging the plaintiff as 
 to that, and directing the suit, or, if an action at law had pre- 
 viously been begun, the latter, to proceed till his disputed rights 
 are determined. 2 
 
 § 90. Bills of Certiorari. — A bill of certiorari was a bill filed 
 in a superior court of equity for the purpose of removing thither 
 a suit in equity pending in an inferior court, on account of some 
 alleged incompetency in the latter or some defect in its proceed- 
 ings. 1 Such a bill first stated the proceedings in the inferior 
 court ; then the cause of its incompetency, as, for example, that 
 the subject of the action or the parties were not within its juris- 
 diction, or that, for some other cause, equal justice could not be 
 done there ; and finally prayed a writ of certiorari, to certify and 
 remove the record and the cause to the superior court. 2 It did 
 not pray that the defendant should answer, or even that he 
 should appear to the bill, and, consequently, prayed for no writ 
 of subpoena, although a subpoena had to be sued out and served. 3 
 It was considered as an original bill, and filed as such in the 
 superior court. Thereupon, the plaintiff was required to exe- 
 cute a bond in the penalty of <£100, with one surety conditioned 
 to prove the suggestions of the bill in fourteen days. A sub- 
 poena was next sued out and served ; and a writ of certiorari 
 issued directed to the judge of the inferior court, requiring him 
 
 83 Anon., 1 Vern. 351 ; Jennings v. Nu- 2 City Bank v. Bangs, 2 Paige (N. Y.), 
 
 gent, 1 Molloy, 134 ; Daniell's Ch. Pr. 570. 
 
 1765. § 90. l Mitford's PI. ch. 1 ; Story's Eq. 
 
 § 89. i Dorn v. Fox, 61 N. Y. 264 ; Mo- PI. § 298. 
 
 hawk & Hudson R. R. Co. v. Clute, 4 2 Story's Eq. PI. § 298. 
 
 Paige (N.Y.), 385 ; Story's Eq. PI. § 297 b ; » Story's Eq. PI. § 298 ; Mitford's PI. 
 
 Daniell's Ch. Pr. (2d Am. ed.) 1768. ch. 1. 
 Contra, New England Mutual Life Ins. Co 
 v. Odell, 50 Hun. (57 N. Y. S. C. R.) 279.
 
 § 90.] BILLS OF CERTIORARI. 147 
 
 to certify or send to the court issuing the writ the tenor of the 
 bill or plaint below, with the process or proceedings thereon. 
 The writ having been served and returned, together with the 
 required statement and papers, an order directing them to be 
 filed was then obtained. Testimony to prove or disprove the 
 suggestions of the bill was immediately taken, and the cause 
 referred to a master to report whether they were proven or no. 
 This was required to be done within fourteen days, unless the 
 court specially enlarged the time. If the allegations were proved 
 and showed a sufficient reason for retaining the suit, an order to 
 retain the bill was granted ; and the defendant below was obliged 
 to answer, and the cause removed proceeded in the same manner 
 as if it had been originally instituted in the superior court. 4 In 
 no reported case has such a bill been filed in a court of the 
 United States, although petitions for writs of certiorari in pro- 
 ceedings at common law are not uncommon. 
 
 * Hinde's Pr. 28-32 and 581, 582.
 
 148 SUBPOENAS TO APPEAK AND ANSWER. [CHAP. V. 
 
 CHAPTER V. 
 
 STTBPCENAS TO APPEAR AND ANSWER. 
 
 § 91. Definition and Form of Subpoena. — The first process in a 
 court of equity is the subpoena, which is a writ requiring the 
 defendant to appear and answer the bill under a penalty therein 
 expressed. A similar writ, called quibusdam certis de causis, in 
 the form of a subpoena without any penalty, is also found in 
 some of the early English chancery cases. 1 The process of sub- 
 poena constitutes the proper mesne process in all suits in equity, 
 in the first instance, to require the defendant to appear and 
 answer the exigency of the bill. 2 These writs, like all writs and 
 processes issuing from the courts of the United States, must be 
 under the seal of the court from which they issue, and signed by 
 the clerk thereof. Those issuing from the Supreme Court or a 
 Circuit Court must bear teste of the Chief Justice of the United 
 States, or, when that office is vacant, of the associate justice next 
 in precedence ; and those issuing from a District Court must bear 
 teste of the judge, or, when that office is vacant, of the clerk 
 thereof. 3 When issued from the Supreme Court the writ must be 
 in the name of the President of the United States. 4 It must be re- 
 turnable into the clerk's office the next rule day, or, at the election 
 of the plaintiff, the next rule day but one, occurring twenty days 
 from the time of the issue thereof, 5 except in the Supreme Court 
 when the return day must be at least sixty days after service 
 of the writ. 6 " At the bottom of the subpoena shall be placed a 
 memorandum that the defendant is to enter his appearance in the 
 suit in the clerk's office on or before the day at which the writ is 
 returnable, otherwise the bill may be taken pro confesso." " The 
 penalty named in the writ is now usually two hundred and fifty 
 
 § 91. * Judge O. W. Holmes, Jr., in an 8 U. S. R. S. § 911. 
 article on Early English Equity, 1 Law 4 Rule 5 of the Supreme Court of the 
 
 Quarterly Review, 162, note 2, citing Pal- United States, 
 grave, King's Council, 131, 132, note x ; 5 Rule 12. 
 Scaldewell v. Stormesworth, 1 Cal. Ch. 5. 6 Supreme Court Rule 5. 
 
 2 Rule 7. » Rule 12.
 
 § 91.] DEFINITION AND FOEM OF SUBPCENA. 149 
 
 dollars ; in earlier times it might be life or limb ; 8 but it is never 
 enforced ; since the taking of the bill as confessed affords a far 
 more substantial remedy. The subpoena should be addressed to 
 the defendant against whom it is issued. 9 "When there are 
 more than one defendant, a writ of subpoena may, at the option 
 of the plaintiff, be sued out separately for each defendant, except 
 in the case of husband and wife defendants, or a joint subpoena 
 against all the defendants." 10 If a defendant is sued in a repre- 
 sentative capacity, or in both an individual and a representative 
 capacity, he should be so described in the subpoena; which 
 should in this respect follow the prayer of process in the bill. 11 
 Otherwise, the service of the subpoena may be set aside upon 
 motion, as issued without authority. 12 Such a defect will, how- 
 ever, be waived, if the defendant enter his general appearance in 
 his representative capacity. 13 
 
 The usual form of a subpoena in a circuit court of the United 
 States is substantially as follows: — 
 
 The President of the United States of America, to John Aber : 
 
 Greeting, — You are hereby commanded that you personally appear 
 before the Judges of the Circuit Court of the United States of America, 
 for the Southern District of New York, in the Second Circuit Court, in 
 Equity, on the first Monday of December, A.D. 1889, wherever the said 
 Court shall then be, to answer a bill of complaint exhibited against you 
 in the said court by Archibald Brown, and do further and receive 
 what the said Court shall have considered in that behalf. And this 
 you are not to omit under the penalty on you of two hundred and 
 fifty dollars. 
 
 Witness, Honorable MELVILLE W. FULLER, Justice of the 
 United States at the City of New York, on the first day of November 
 in the year one thousand eight hundred and eighty-nine, and of the 
 independence of the United States of America, the one hundred and 
 thirteenth. 
 
 Robert Jones, Complainant's SoVr, John A. Shields, Clerk. 
 
 8 Judge O. W. Holmes, Jr., in an 73 ; Brasher v. Van Cortlandt, 2 J. Ch. 
 
 article on Early English Equity, 1 Law (N. Y.) 247. 
 
 Quarterly Review, 162, note 2, citing 1 12 Walton v. Herbert, 3 Green Ch. 
 
 Proceedings Privy Council (21 R. 2, a. d. (N. J.) 73 ; Brasher v. Van Cortlandt, 2 J. 
 
 1397). Ch. (N. Y.) 242, 247. 
 
 9 Daniell's Ch. Pr. (2d Am. ed.) 495. 13 Walton v. Herbert, 3 Green Ch. 
 
 10 Rule 12. (N. J.) 73 ; Brasher v. Van Cortlandt, 2 J. 
 
 11 Carter v. Ingraham, 43 Ala. 78; Ch. (N. Y.) 242, 247; Buerk v. Imhaeuser, 
 Walton v. Herbert, 3 Green Ch. (N. J.) 8 Fed. R. 457.
 
 150 SUBPCENAS TO APPEAR AND ANSWER. [CHAP. V. 
 
 The Defendant is required to enter appearance in the above cause 
 in the Clerk's office of this Court on or before the first Monday of 
 December, 1889, or the bill will be taken pro confesso against him. 
 
 John A. Shields, Clerk. 
 
 § 92. issue of the Subpoena. — No process of subpoena can 
 issue from the clerk's office in any suit in equity until the bill 
 is filed in the office. 1 Whenever a bill is filed the clerk must 
 issue the process of subpoena thereon, as of course, upon the 
 application of the plaintiff. 2 The signature of counsel is a suf- 
 ficient warrant for his so doing. A praecipe, or written order for 
 the subpoena, signed by the attorney is usually first given him. 
 In the early times, the bill was first examined by one of the 
 masters in chancery, whose duty it was to determine whether to 
 dismiss the bill by original or to retain it by subpoena. 3 The 
 present practice, it is said, originated when Sir Thomas More 
 was Keeper. 4 In the Supreme Court of the United States a 
 motion for leave to file a bill must first be made. This is usually 
 heard ex parte; 5 but when leave was asked to file a bill against 
 the President of the United States, under the peculiar circum- 
 stances of that case it was thought proper that argument should 
 be heard against the motion for leave. 6 The court refused to 
 extend this exception so as to include a suit by a State against 
 General Grant when in command of the army, but then required 
 ten printed copies of the bill to be filed with the clerk before the 
 hearing, which it determined should be the regular practice in 
 all cases of original jurisdiction brought before it. 7 Whenever 
 any subpoena is returned not executed as to any defendant, the 
 plaintiff is entitled to another subpoena, toties quoties, against 
 such defendant, if he requires it, until due service is made." 8 
 
 § 93. "When a Subpoena is necessary. — No defendant can be 
 brought before the court against his will without the service of 
 a subpoena upon him. 1 A general appearance will, however, 
 
 § 92. 1 Rule 11. 5 State of Georgia v. Grant, 6 "Wall. 
 
 2 Rule 12. 241. 
 
 8 Treatise on Masters of the Ohaun- 6 State of Georgia v. Grant, 6 Wall, 
 
 eerie, 1 Harg. Law Tracts, 302 ; Daniell's 241, 242 ; State of Mississippi v. Johnson, 
 
 Ch. Pr. (2d Am. ed.) 357. 4 Wall. 475. 
 
 4 Treatise on Masters of the Chaun- " State of Georgia v. Grant, 6 Wall, 
 
 eerie, 1 Harg. Law Tracts, 302 ; Daniell's 241. 
 Chancery Practice (2d American edition), 8 Rule 14. 
 357. § 93. i Rule 7.
 
 § 94] PERSONAL SERVICE OF A SUBPCENA. 151 
 
 waive such an omission. 2 After a bill has been amended with 
 no further change than the bringing in of new parties defendant, 
 they alone need be served with a new subpoena. 3 If, however, 
 it be otherwise substantially amended, according to the English 
 practice a subpoena to answer the amendments had to be served 
 upon all the defendants. 4 A subpoena to appear and answer a 
 bill of revivor should be substantially in the form of a subpoena 
 to an original bill, except that it requires the proper representa- 
 tives of the party against whom it issues to appear at the next 
 rule-day, which shall occur after fourteen days from the time of 
 the service of the process, and there show cause, if any they have, 
 why the cause should not be revived. 5 
 
 § 94. Personal Service of a Subpoena. — Except in certain ex- 
 ceptional cases the service of the subpoena must be personal. 
 It must be made by the marshal of the district or his deputy, 
 or by some other person specially appointed by the court for 
 that purpose, and not otherwise. 1 " When the marshal or his 
 deputy is a party in any cause, the writs and praecepts therein 
 shall be directed to such disinterested person as the court or any 
 justice or judge thereof may appoint, and the person so ap- 
 pointed may execute and return them." 2 If the marshal or his 
 deputy make the service, his unverified return is sufficient, 3 and 
 it has been said cannot be contradicted, 4 the only remedy being 
 an action against the officer for a false return. 5 But it is capable 
 of subsequent amendment. 6 The return should state where the 
 service was made, if the defendant reside without the district, 7 
 and probably in any event. If another than the marshal or his 
 deputy serve the subpoena, proof must be made by the affidavit 
 of the process-server. 8 The indorsement by the defendant upon 
 a subpoena issued from the circuit court for Vermont : " Wash- 
 ington, D.C., October 18th, 1883. I hereby accept service of the 
 
 2 Buerk v. Imhaeuser, 8 Fed. R. 457. 101 ; Flioenix Ins. Co. v. Wulf, 1 Fed. R. 
 
 3 Longworth v. Taylor, 1 McLean, 775; Rule 16. 
 
 514; Angerstein v. Clarke, 1 Ves. Jr. 4 Von Roy v. Blackman, 3 Woods, 
 
 250; Skeffington v. , 4 Ves. GO. 98, 100. 
 
 4 Cooke y. Davies, T. &.R. 309; Bram- 5 Von Roy v. Blackman, 3 Woods, 
 ston v. Carter, 2 Simons, 458. See Ken- 98, 100. 
 
 dall v. Beckett, 1 Russ. 152. 6 Phoenix Ins. Co. v. Wulf, 1 Fed. R. 
 
 5 Rule 56. 775. 
 
 §94. i Rule 15; Deacon v. Sewing " Allen v. Blunt, 1 Blatchf . 480, 487 ; 
 
 Machine Co., 14 Reporter, 43. Thayer v. Wales, 5 Fisher's Pat. Cas. 448. 
 
 2 U. S. R. S. § 922. 8 Rule 15. 
 8 Von Roy v. Blackman, 3 Woods, 98,
 
 152 SUBPCENAS TO APPEAR AND ANSWER. [CHAP. V. 
 
 within subpoena, to have the same effect as if duly served upon me 
 by a proper officer, and I do hereby acknowledge the receipt of a 
 copy thereof. E. M. Marble, Com'r of Patents," has been held to 
 be nothing more than that " the commissioner admits service with 
 the same effect it would have if made by an officer of the Dis- 
 trict of Columbia," and not to be a waiver of the objection that 
 the subpoena could not properly be served beyond the jurisdic- 
 tion of the court whence it issued. 9 " The service of all sub- 
 poenas shall be by a delivery of a copy thereof by the officer 
 serving the same to the defendant personally, or by leaving a 
 copy thereof at the dwelling-house or usual place of abode of 
 each defendant with some adult person who is a member or resi- 
 dent of the family." 10 When a husband and wife are parties a 
 copy must be served upon each, although the former practice 
 was complied with by service upon the husband alone. 11 Service 
 at the door of the defendant's dwelling has been held a sufficient 
 compliance with the rule. 12 In an English case, where infant 
 defendants were secreted, service upon their mother was allowed, 
 and held sufficient. 13 Chief Baron Gilbert, in his " Forum Ro- 
 manura," says of the subpoena: "The service is good in the 
 night or on Sunday, if it be before the time of the return ; for 
 this being only process of notice, and not to arrest the parties, it 
 can create no disturbance, though it be served in the night or on 
 Sunday." 14 It has, however, since been held in England that a 
 service on Sunday may be set aside. 15 Personal service of the 
 subpoena can only be made within the territorial jurisdiction of 
 the court, 16 except when a subpoena issues from a court in a 
 State which is divided into two districts, in which case, it seems, 
 that it may be served in either district within the same State. 17 
 " Upon the return of the subpoena as served and executed 
 upon any defendant, the clerk shall enter the suit upon his 
 docket as pending in the court, and shall state the time of the 
 entry." 18 
 
 9 Butterworth v. Hill, 114 U. S. 128, « Smith v. Marshall, 2 Atk. 70. 
 
 132, 133. 14 Gilbert's Forum Romanum (Tyler's 
 
 !° Rule 13. See Phoenix Ins. Co. v. edition), 42. 
 
 Wulf, 1 Fed. R. 775; Hyslop v. Hop- 15 Mackreth v. Nicholson, 19 Ves. 367. 
 
 pock, 5 Ben. 447. 16 Tolandy. Sprague, 12 Pet. 300, 328 ; 
 
 11 O'Hara v. MacConnell, 93 U. S. 150; Picquet v. Swan, 5 Mason, 35; Bourke 
 Robinson v. Cathcart, 2 Cranch C. C. 590. v. Amison, 32 Fed. R. 710. 
 
 12 Phoenix Ins. Co. v. Wulf, 1 Fed. R. 17 Winter v. Ludlow, 3 Phila. (Pa.) 464. 
 775. 18 Rule 16.
 
 § 95.] SERVICE UPON CORPORATIONS. 153 
 
 § 95. Service upon Corporations. — If the United States is 
 sought to be made a party defendant, the subpoena should be 
 served upon the attorney-general or the district attorney of the 
 district where the suit is brought. 1 " When process at common 
 law or in equity shall issue against a State, the same shall be 
 served on the governor, or chief executive magistrate, and 
 attorney-general of such State." 2 When a suit is brought 
 against a domestic corporation, that is, one chartered within the 
 State in which is the district where the suit is brought, the sub- 
 poena should be served upon one of its officers, or perhaps one of 
 its members. 3 The State practice in such cases although not 
 binding upon the Federal courts furnishes a guide which they 
 are apt to follow. 4 The jurisdiction of the Circuit and District 
 Courts of the United States over foreign corporations is, on account 
 of the obscurity of the Judiciary Act of 1887, a doubtful question. 5 
 The weight of authority seems to hold that when the jurisdic- 
 tion is vested solely upon the existence of a Federal question in 
 the case, such a court has no jurisdiction over a foreign corpo- 
 ration; 6 but that when jurisdiction is claimed on account of a 
 difference of citizenship, a foreign corporation may be served 
 with process provided it be " found " within the district. 7 What 
 constitutes such a finding is a matter hard accurately to define. 
 If a State statute forbids a foreign corporation to transact business 
 within her borders except upon condition that the corporation 
 stipulate to allow legal process to be served upon it, and the 
 company execute such a stipulation, which is not in express terms 
 restricted to the process of a State court, it will be considered 
 to apply to the Federal courts, and a subpoena from a Federal 
 court may be served upon the foreign corporation in the same 
 
 § 95. i Hoffman's Ch. Pr. 108; Dan- Ry. Co. 38 Fed. R. 449; and Riddle v. 
 
 iell's Ch. Pr. (2d Am. ed.) 517, note 4. N. Y. L. E. & W. R. Co. 39 Fed. R. 290 ; 
 
 2 Supreme Court Rule 5 ; Grayson v. and see § 22. 
 
 Virginia, 3 Dall. 320. 6 St. Louis,V. & T. H. R. R Co. ?\Terre 
 
 8 Daniell's Ch. Pr. (2d Am. ed.) 501, Haute & I. R. R. Co ,33 Fed. R. 385, 386. 
 
 and note 2. But see St. Clair v. Cox, See County of Yuba v. Pioneer Gold Min- 
 
 106 U. S. 350, 359. ing Co., 32 Fed. R. 183. 
 
 4 Thornburgh v. Savage Mining Co., " Falesv. Chicago, M. & St. P. Ry. Co., 
 
 1 Pacific Law Mag. 267. 32 Fed. R. 673; Short u. Chicago," M. & 
 
 6 24 St. at L., ch. 373. Cf. Filli v. St. P. Ry. Co., 33 Fed. R. 114; St. Louis, 
 
 D. L. & W. R. R. Co. 37 Fed. R. 65; V. &T. H. R.R. Co v.Terre Haute & I. R. 
 
 Hohorst v. Hamburg Amer. Packet Co., R. Co., 33 Fed. R 385. Contra, County of 
 
 38 Fed. R. 273; and Denton v. Inter- Yuba v. Pioneer Gold Mining Co., 32 
 
 national Co. of Mexico, 36 Fed. R. 1 ; Fed. R. 183. 
 with Zambrino v. Galveston, H. & S. A.
 
 154 SUBPCENAS TO APPEAR AND ANSWER. [CHAP. V. 
 
 way as would a similar process of a State tribunal. 8 Such 
 condition and stipulation may be implied as well as expressed. 
 If a State permits a foreign corporation to do business within 
 her limits, and at the same time provides that in suits against it 
 for business there done, process shall be served upon its agents, 
 the provision is deemed to be a condition of the permission ; and 
 corporations that subsequently do business in the State are to be 
 deemed to assent to such condition as fully as though they had 
 specially authorized their agents to receive service of the pro- 
 cess. 9 " Such condition must not, however, encroach upon that 
 principle of natural justice which requires notice of a suit to a 
 party before he can be bound by it. It must be reasonable, and 
 the service provided for should be only upon such agents as 
 may be properly deemed representatives of the foreign corpora- 
 tion." 10 Service upon an agent who stood in no representative 
 character to the company, whose duties were limited to those of 
 a subordinate employe, or to a particular transaction, or whose 
 agency had ceased when the matter in dispute arose, would, 
 probably, be held insufficient. 11 In order thus to subject itself 
 to the service of process, the foreign corporation must actually 
 transact business in the district where the suit is brought. 12 
 A single act of business, such as the making of a contract there 
 for the sale of an article to be manufactured elsewhere and 
 there delivered, would not be sufficient, " when there was no pur- 
 pose to do any other business or to have a place of business " 
 within the district. 13 So, it has been held, that the presence of 
 the principal officers of a corporation in a foreign State, when 
 they have with them property of the corporation for the purpose 
 of exhibition, does not make the corporation liable to the service 
 
 8 Ex parte Schollenberger, 96 TJ. S. & S. A. Ry. Co. 38 Fed. R. 449 ; Riddle 
 369 ; overruling several eases to the con- v. N. Y. L. E. & W. R. Co. 39 Fed. R 
 trary previously decided in the Circuit 290 ; Maxwell v. Atchison, T. & S. F. R 
 Courts. Co. 37 Fed. R. 286; Filli v. D. L. & W 
 
 9 St Clair v. Cox, 106 U. S. 350, 356. R. R. Co. 31 Fed. R. 65; Hohorst v Ham 
 
 10 Mr. Justice Field in St. Clair v. Cox, burg Amer. Packet Co., 38 Fed. R. 273 ; 
 106 U. S. 350, 356. See also Hayden v. Denton v. International Co. of Mexico, 
 Androscoggin Mills, 1 Fed. R. 93; Estes 36 Fed. R. 1 ; Block v. Atchison, T. & S. 
 v. Belford, 22 Fed. R. 275. F. R. Co. 21 Fed. R. 529. 
 
 11 St. Clair v. Cox, 106 U. S. 350, 359, 1S Cooper Manuf. Co. v. Ferguson, 113 
 360 ; Maxwell v. Atchison, T. & S. F. R. U. S. 727, 735 ; Good Hope Co. v. Rail- 
 Co. 34 Fed. R. 286. way Barb Fencing Co., 22 Fed. R. 635 ; 
 
 12 Cooper Manuf. Co. v. Ferguson, 113 Maxwell v. Atchison, T. & S. F. R. R. Co., 
 U. S. 727 ; Hnyden v. Androscoggin Mills, 34 Fed. R. 286. 
 1 Fed. R. 93;*Zambrino v. Galveston, H. 

 
 § 96.] SUBSTITUTED SERVICE OF A SUBPCENA. 155 
 
 of process upon them there. 14 The lease by a foreign to a domes- 
 tic corporation of personal property, and the payment by the 
 latter to the former of a part of the profits derived from the use 
 of such property within the jurisdiction of the court, does not 
 give the court jurisdiction over the former corporation upon 
 service of a subpoena upon the latter as its agent. 15 It has 
 been held, at circuit, that service of process in the manner pre- 
 scribed by the State practice may subject a foreign corporation 
 to the jurisdiction of the Federal court, in a case over which the 
 State courts have no jurisdiction because the cause of action 
 arose without the State. 16 It has been said, however, " that in 
 the absence of a voluntary appearance, three conditions must 
 concur or co-exist in order to give the Federal courts jurisdic- 
 tion in personam over a corporation created without the territorial 
 limits of the State in which the court is held, viz. : (1) It must 
 appear as a matter of fact that the corporation is carrying on 
 its business in such foreign State or district ; (2) that such busi- 
 ness is transacted or managed by some agent or officer appointed 
 by and representing the corporation in such State ; and (3) the 
 existence of some local law making such corporation, or foreign 
 corporations generally, amenable to suit there, as a condition, 
 express or implied, of doing business in the State." 17 
 
 § 96. Substituted Service of a Subpcena. — Independently of 
 any express statutory authority, there is no power in a court 
 of equity to order actual personal service to be effected upon a 
 defendant beyond its territorial jurisdiction ; but, in a few cases, 
 such courts have for more than a century assumed the power of 
 ordering service to be made within their jurisdiction upon some 
 person for the absent defendant, and have treated such service 
 as valid. 1 In suits to stay proceedings at law in the same court, 
 the service of a subpoena upon the attorney of the plaintiff at 
 law may be allowed, and will then bind the latter if he be 
 
 14 Carpenter r.Westinghouse Air Brake §96. 1 Hales v. Sutton, 1 Dickens, 26 ; 
 
 Co., 32 Fed. R. 434. s. c. sub nom. Hallett v. Sutton, 12 Simons, 
 
 18 United States v. American Bell Tele- 145, note ; Carter v. De Brune, 1 Dickens, 
 
 phone Co., 29 Fed. R. 17. 39 ; Hyde v. Forster, 1 Dickens, 102 ; Lady 
 
 16 Carstairs v. Mechanics' & Traders' Carrington v. Cantillon, Bunbury, 107 ; 
 Ins. Co. of N. Y., 13 Fed. R. 823. Hobhouse v. Courtney, 12 Simons, 140, 
 
 17 United States v. American Bell Tele- and cases there cited; Daniell's Ch. Pr. 
 phone Co., 29 Fed. R. 17, 35. See Max- (2d Am. ed.) 502-508. 
 
 well v. Atchison, T. & S. F. R. R. Co., 
 34 Fed. R. 286, 289.
 
 156 SUBP02NAS TO APPEAR AND ANSWER. [CHAP. V 
 
 beyond the territorial jurisdiction of the court. 2 A similar prac- 
 tice would in all probability be allowed in serving process under 
 bills not original ; namely, bills of revivor, supplemental bills, 
 and bills of revivor and supplement ; which are nothing more 
 than continuations of the suits upon which they operate. 3 So, 
 under a bill to reform an insurance policy pending an action at 
 law upon the policy, a subpoena may be thus served upon the 
 attorney for the party to the action at law. 4 The Federal courts 
 have refused to extend this class of cases so as to include a bill 
 of interpleader, two of the defendants to which were engaged in 
 an action between themselves in the same court concerning the 
 same matter ; 5 although in England such a mode of service 
 might have been allowed. 6 Nor, it seems, can a subpoena thus 
 be served under a bill to set aside a sale made under a decree 
 of the same court to which persons are joined as defendants 
 who were not parties to the former suit." It seems also that 
 substituted service of a subpoena to appear and answer to a 
 cross-bill will not be allowed. 8 Certainly not, if the cross- 
 bill seek to introduce new and distinct matters into the oris- 
 inal suit. 9 The proper practice when a defendant to a cross- 
 bill cannot be served personally seems to be to procure an 
 order staying his proceedings in the original cause until he 
 answers the cross-bill. 10 Substituted service was also allowed 
 upon the agent of a defendant beyond the jurisdiction, who 
 had authority to represent the latter with respect to the prop- 
 erty which was the subject of the suit. 11 When this mode of 
 
 2 Dunn v. Clarke, 8 Pet. 1 ; Hitner v. souri Pacific Ry. Co., 3 Fed. R. 772 ; s. c. 
 Suckley, 2 Wash. 465 ; Eckert v. Bauert, 1 McCrary, 047 ; s. c. on appeal, 111 U. S. 
 4 Wash. 370 ; Ward v. Seabry, 4 Wash. 505, 522. 
 
 426 ; Read v. Consequa, 4 Wash. 174 ; 8 Sawyer v. Gill, 3 Woodb. & M. 97 j 
 
 Bartlett v. Sultan of Turkey, 19 Fed. R. Segee v. Thomas, 3 Blatchf. 11 ; Hitner v. 
 
 346. See also Logan v. Patrick, 5 Cranch, Suckley, 2 Wash. 465 ; Anderson v. Lewis, 
 
 288 ; Dunlap v. Stetson, 4 Mason, 349. 3 Brown Ch. C. 429 ; Gardiner v. Mason, 
 
 3 Norton v. Hepworth, 1 Hall & Twell, 4 Brown Ch. C. 478 ; Waterton v. Croft, 
 158 ; Dunn v. Clarke, 8 Pet. 1. But see 5 Simons, 502. 
 
 Henderson v. Meggs, 2 Brown Ch. C. 127 
 Anderson v. Lewis, 3 Brown Ch. C. 429 
 Gardiner v. Mason, 4 Brown Ch. C. 478 
 
 9 Rubber Co. v. Goodyear, 9 Wall. 
 807 ; Heath v. Erie Ry. Co., 9 Blatchf. 
 316. 
 
 Waterton v. Croft, 5 Simons, 502. 10 Sawyer v. Gill, 3 W. & M. 97 ; Segee 
 
 4 Abraham v. North German Fire Ins. v. Thomas, 3 Blatchf. 11 ; Hitner v. Suck- 
 Co., 37 Fed. R. 731. ley, 2 Wash. 465; Anderson v. Lewis, 
 
 5 Herndon v. Ridgway, 17 How. 424. 3 Brown Ch. C. 429 ; Gardiner v. Mason, 
 
 6 Martinius v. Helmuth, Cooper, 248 ; 4 Brown Ch. C. 478 ; Waterton v. Croft, 
 Stevenson v. Anderson, 2 Ves. & B. 112. 5 Simons, 502. 
 
 7 Pacific Railroad of Missouri v. Mis- u Hobhouse v. Courtney, 12 Simons,
 
 § 97.] STATUTORY SERVICE OF A SUBPCENA. 157 
 
 service is desired, an order must be obtained that service upon 
 the attorney employed in the former suit or action shall be 
 deemed good service. 12 If service be made upon the attorney 
 without such an order having been obtained, it may be set 
 aside. 13 The motion for such an order may ordinarily be made 
 ex parte. 1 * It must be supported by an affidavit, setting forth 
 the reasons why such service is desired, and verifying the alle- 
 gations of the bill made by the plaintiff or some person having 
 personal knowledge of the facts therein stated. 15 Written ad- 
 missions of the defendant may, however, be sufficient to support 
 the motion without such affidavit. 16 A previous request of the 
 attorney to accept service of the subpoena and his refusal so to 
 do, is not a necessary preliminary to such a motion. 17 
 
 § 97. Statutory Service of a Subpoena. — The statutes of the 
 United States, which in this respect are analogous to those of 
 England, 1 provide, " That when in any suit, commenced in any 
 court of the United States, to enforce any legal or equitable lien 
 upon, or claim to, or to remove any incumbrance or lien or cloud 
 upon the title to real or personal property within the district 
 where such suit is brought, one or more of the defendants 
 therein shall not be an inhabitant of, or found within, the said 
 district, or shall not voluntarily appear thereto, it shall be lawful 
 for the court to make an order directing such absent defendant 
 or defendants to appear, plead, answer, or demur by a day 
 certain to be designated, which order shall be served on such 
 absent defendant or defendants, if practicable, wherever found, 
 and also upon the person or persons in possession or charge of 
 said property, if any there be ; or where such personal service 
 upon such absent defendant or defendants is not practicable, 
 such order shall be published in such manner as the court may 
 direct not less than once a week for six consecutive weeks ; 
 
 140, and cases cited. But see U. S. R. S. 16 Pacific Railroad of Missouri v. Mis- 
 
 § 793. souri Pacific Ry. Co ., 3 Fed. R. 772 ; s. c. 
 
 12 Pacific Railroad of Missouri v. Mis- 1 McCrary, 647 ; Delaney v. Wallis, 3 
 souri Pacific Ry. Co., 3 Fed. R. 772; Brown's C. C. 12; Stephen v. Cini, 4 
 8. c. 1 McCrary, 647; Daniell's Ch. Pr. Ves. 359 ; Kenworthy v. Accunor, 3 Madd. 
 (2d Am. ed.) 502. 550. 
 
 13 Pacific Railroad of Missouri v. Mis- 16 Royal Exchange Ins. Co. v. Ward, 
 souri Pacific Ry. Co., 3 Fed. R. 772 ; s. c. 1 Fowler Ex. Pr. 225. 
 
 1 McCrarv, 647. 17 French v. Roe, 13 Ves. 593. 
 
 M Daniell's Ch. Pr. (2d Am. ed.) 503. § 97. * 2 Wm. IV. c. 33; 4 & 5 Wm. 
 
 But see Crew v. Martin, 1 Fowler Ex. IV. c. 82. 
 Pr. 225.
 
 158 SUBPffiNAS TO APPEAR AND ANSWEK. [CHAP. V. 
 
 and in case such absent defendant shall not appear, plead, 
 answer, or demur within the time so limited, or within some 
 further time to be allowed by the court, in its discretion, and 
 upon proof of the service or publication of said order, and of 
 the performance of the directions contained in the same, it shall 
 be lawful for the court to entertain jurisdiction and proceed to 
 the hearing and adjudication of such suit in the same manner as 
 if such absent defendant had been served with process within 
 the said district ; but said adjudication shall, as regards said 
 absent defendant or defendants without appearance, affect only 
 the property which shall have been the subject of the suit, and 
 under the jurisdiction of the court therein, within such district; 
 and when a part of the said real or personal property against 
 which such proceeding shall be taken shall be within another 
 district, but within the same State, said suit may be brought in 
 either district in said State : Provided, however, That any defend- 
 ant or defendants not actually personally notified as above pro- 
 vided may, at any time within one year after final judgment in 
 any suit mentioned in this section, enter his appearance in said 
 suit in said circuit court, and thereupon the said court shall 
 make an order setting aside the judgment therein, and permitting 
 said defendant or defendants to plead therein on payment by him 
 or them of such costs as the court shall deem just ; and there- 
 upon said suit shall be proceeded with to final judgment accord- 
 ing to law." 2 A subpoena cannot thus be served when the main 
 object of the bill is for an accounting by an absent and non- 
 resident defendant, although there is also a prayer for the ap- 
 pointment of a receiver of property within the district. 3 It has 
 been said, that a claim to a certain number of undesignated 
 shares of stock in a corporation chartered within the district is 
 not property within that district when the holder of the legal 
 title to the stock is domiciled elsewhere. 4 An absent judg- 
 ment debtor may thus be served in a suit by the creditor to 
 appropriate his assets. 5 It has been held at circuit : that an 
 order in pursuance of this statute may be obtained immediately 
 on filing the bill, upon proof by affidavit that the defendant 
 
 2 U. S. R. S. § 738; as amended by 4 Kilgour v. New Orleans Gas-Light 
 act of March 3, 1875, ch. 137, § 8, (18 St. Co., 2 Woods, 144. 
 
 at L. 472.) 5 Brigham v. Luddington, 12 Blatchf. 
 
 3 Ellis v. Reynolds, 35 Federal Re- 237. Compare Picquet v. Swan, 5 Mason, 
 porter, 394. 35; s. c. 5 Mason, 561.
 
 § 98.] EXEMPTIONS FROM SERVICE OF A SUBPOZNA. 159 
 
 does not dwell within the district, and cannot be served or found 
 therein ; 6 that the day named for his appearance need not be 
 one of the rule days of the court ; 7 that personal service of 
 the order must be made in all cases where the residence of the 
 absent defendant is known or can be ascertained, or service upon 
 him can be made within a reasonable time and by the exercise of 
 reasonable diligence ; and that its service by publication can 
 only be authorized upon proof by affidavit of the facts showing 
 that personal service without the jurisdiction is impracticable. 8 
 If the absent defendant reside in another district of the United 
 States, the safer practice is to obtain an order directing the 
 marshal of that district to serve him. 9 
 
 § 98. Exemptions from Service of a Subpoena. — Chief Justice 
 Marshall, in the course of the trial of Aaron Burr, ordered that 
 a subpoena duces tecum should issue against President Jefferson. 
 Jefferson, however, refused to obey the subpoena, while express- 
 ing his perfect willingness to furnish the paper desired, if re- 
 quested in what he considered a proper way. The dispute went 
 no farther. 1 Subsequently, a motion was made for leave to file 
 a bill in the Supreme Court, praying for an injunction against 
 President Johnson to restrain him from executing the reconstruc- 
 tion laws. The attorney-general then took the position that the 
 President was not amenable to process ; but that point was not 
 then and has not since been decided. 2 No other officer or person 
 has been claimed to be above the law. The Federal Constitution 
 provides that senators arid representatives " shall in all cases, 
 except Treason, Felony, and Breach of the Peace, be privileged 
 from Arrest during their Attendance at the Session of their re- 
 spective Houses, and in going to and returning from the same." 3 
 This has been construed at circuit to exempt them from service 
 of process, unaccompanied by arrest of the person, when on their 
 way to attend a session of Congress ; 4 and it has been further 
 held that such exemption is not lost by a slight deviation from 
 the most direct road to the capital. 5 In certain cases indi- 
 viduals are temporarily exempt from the service of process. A 
 
 6 Forsyth v. Pierson, 9 Fed. R. 801. § 98. 1 Burr's Trial. 
 
 But see Bronson v. Keokuk, 2 Dill. 498. 2 Mississippi v. Johnson, 4 Wall. 475\ 
 
 7 Forsyth v. Pierson, 9 Fed. R. 801. See Jefferson's Works, vol. v. p. 102. 
 
 8 Bronson v. Keokuk, 2 Dill. 498. 3 Const. Art. I. § 6. 
 
 9 Bronson v. Keokuk, 2 Dill. 498 ; 4 Miner v. Markham, 28 Fed. R. 387. 
 Forsyth v. Pierson, 9 Fed. R. 801. 6 Miner v. Markham, 28 Fed. R. 387.
 
 1G0 SUBPCENAS TO APPEAR AND ANSWER. [CHAP. V. 
 
 person temporarily within the district for the purpose of at- 
 tending, either as witness, 6 party, 7 attorney, or counsel, 8 a trial 
 or other proceeding, 9 civil or criminal, 10 in a State n or Fed- 
 eral 12 court, is, while there, exempt from the service of process 
 eundo, morando, et redeundo. A similar exemption would prob- 
 ably be applied to any person while temporarily within the 
 district in the discharge of a public duty. 13 The privilege of a 
 witness does not exempt him from liability to service in a 
 suit arising out of his acts upon that same visit to the jurisdic- 
 tion. 14 A Federal court will not punish as a contempt the 
 arrest or service of process by a State court upon a foreign 
 witness in attendance before it ; 15 though it might perhaps 
 upon habeas corpus discharge the witness from such arrest, 16 
 or punish the party who molested the witness, by a stay of 
 proceedings in a case pending between him and the witness 
 in the Federal court. 17 If a person be fraudulently enticed 
 within the district and then served with process by those who 
 thus induced him to come, the service may be set aside. 18 In 
 one case, when a man was induced by a forged telegram to enter 
 the jurisdiction of the court, the party who served him there was 
 held to be presumptively connected with the fraud. 19 
 
 6 Person v. Grier, 66 N. Y. 124, and Record, 541 ; Brooks v. Farwell, 2 Mc- 
 cases there cited ; Kauffrnan v. Kennedy, Crary, 220 ; s. c. 4 Fed. R. 167 ; Bridges 
 25 Fed. R. 785. v. Sheldon, 7 Fed. R. 17; Matthews v. 
 
 7 Parker v. Hotchkiss, 1 Wall. Jr. 269 ; Puffer, 10 Fed. R. 606 ; Lamed v. Griffin, 
 Juneau Bank v. McSpedan, 5 Biss. 64 ; 12 Fed. R. 590. 
 
 Matthews v. Tufts, 87 N. Y. 568 ; Brooks 13 Lyell v. Goodwin, 4 McLean, 29. 
 
 v. Farwell, 2 McCrary, 220 ; s. c. 4 Fed. 14 Nichols v. Horton, 14 Fed. R. 327. 
 
 R. 167 ; Bridges v. Sheldon, 7 Fed. R. 17 ; 15 Ex parte Schulenburg, 25 Fed. R. 
 
 Matthews v. Puffer, 10 Fed. R. 606; 211. 
 
 Larned v. Griffin, 12 Fed. R. 590. 16 Ex parte Hurst, 1 Wash. C. C. 186. 
 
 8 Matthews v. Tufts, 87 N. Y. 568. See Ex parte Schulenburg, 25 Fed. R. 211, 
 
 9 United States v. Bridgman, 8 Am. 212. 
 
 Law Record, 541 ; Newton v. Askew, 6 17 Bridges v. Sheldon, 7 Fed. R. 17, 42 ; 
 
 Hare, 319 ; Matthews v. Tufts, 87 N. Y. Ex parte Schulenburg, 25 Fed. R. 211, 
 
 568. 213. 
 
 10 United States v. Bridgman, 8 Am. 18 Union Sugar Refinery v. Mathiesson, 
 Law Record, 541. But see Jenkins v. 2 Cliff. 304 ; Steiger v. Bonn, 4 Fed. R. 
 Smith, 57 How. Pr. (N. Y.) 171. 17 ; Blair v. Turtle, 5 Fed. R. 394 ; s. c. 
 
 11 Juneau Bank v. McSpedan, 5 Biss. 23 Alb. L. J. 435 ; Baker v. Wales, 14 
 64: Matthews v. Tufts, 87 N. Y. 568. Abb. Pr. n. s. (N. Y.) 331. 
 
 12 Parker v. Hotchkiss, 1 Wall. Jr. 269 ; 19 Steiger v. Bonn, 4 Fed. R. 17. 
 United States v. Bridgman, 8 Am. Law
 
 § 100.] WHAT CONSTITUTES AN APPEAKANCE. 161 
 
 CHAPTER VI. 
 
 APPEARANCE. 
 
 § 99. Definition of an Appearance. — An appearance is the pro- 
 cess by which a defendant submits himself to the jurisdiction of 
 the court. An appearance is either general or special. By a 
 general appearance a defendant appears for all purposes in the 
 suit. By a special appearance he appears solely for the purpose 
 of objecting to the jurisdiction on account of a defect, omission, 
 or irregularity in the service of the subpoena upon him, or per- 
 haps for some other reason. 1 An appearance gratis is an appear- 
 ance by a defendant who has not been served with process. 2 
 
 § 100. What constitutes an Appearance. — The proper method 
 of entering an appearance is to deliver to the clerk a praecipe, 
 that is, a written direction, ordering him to enter the appearance 
 of the defendant who subscribes it. 1 The taking, however, of 
 any proceeding 2 other than a special appearance and a motion or 
 plea thereon founded, is equivalent to a general appearance. 3 It 
 has not yet been authoritatively decided whether or not the 
 filing of a petition for a removal from a State to a Federal court 
 is equivalent to a general appearance. 4 The indorsement and 
 signature by a defendant upon a subpoena of the words, " I 
 hereby accept service of the within subpoena, to have the same 
 effect as if duly served on me by a proper officer, and do hereby 
 
 § 09. 1 National Furnace Co. v. Moline 410; Livingston v. Gibbons, 4 J. Ch. 
 Malleable Iron Works, 18 Fed. R. 803; (N.Y.) 94; Blackburn v. Selraa, M. & M. 
 Elliott v. Lawbead, 43 Ohio St. 171 ; Dorr R. R. Co., 2 Flippin, 525. 
 v. Gibboney, 3 Hughes, 382 ; U. S. v. 4 It was held that it was not, in Par- 
 American Bell Telephone Co., 29 Fed. rott v. Alabama Gold Life Ins. Co , 5 Fed. 
 K. n. R. 391; Atchison v. Morris, 11 Fed. R. 
 
 2 Daniell's Ch. Pr. (2d Am. ed) 590- 582; Small v. Montgomery, 17 Fed. R. 
 
 595. 865; Miner v. Markham, 28 Fed. R. 387 ; 
 
 §100. * Daniell's Ch. Pr. (2d Am. ed.) Estea v. Knickerbocker Life Ins. Co., 
 
 590, 591. N. Y. C. P. Trial Term, Beach, J., Daily 
 
 2 Jones v. Andrews, 10 Wall. 327; Register, Nov. 17, 1882. See also Freid- 
 
 Thomburgh j;. Savage Mining Co., 1 Pad- hinder v. Pollock, 5 Coldw. (Tcnn.) 490. 
 
 fie Law Mag. 267 ; Livingston v. Gibbons, But see the conflicting cases of Sayles u. 
 
 4 J. Ch. (N. Y.) 94, 99. N. W. Ins. Co., 2 Curt. 212 ; Bushnell v. 
 
 1 New Jersey v. New York, 6 Pet. 323 ; Kennedy, 9 Wall. 387, 393; Sweeney v. 
 
 Van Antwerp v. Ilulburd, 7 Blatchf. 426, Coffin, 1 Dill. 73, 70. 
 
 11
 
 162 APPEARANCE. [CHAP. VI. 
 
 acknowledge the receipt of a copy thereof," is not equivalent to 
 an appearance. 5 A special appearance, it would seem, is only 
 properly made by special leave of the court obtained by an ex 
 parte motion. 6 And it is the safer practice to accompany it with 
 an undertaking by the defendant to abide by the further orders 
 of the court. 7 An appearance gratis can only be made by a 
 defendant named in the introduction or prayer for process in the 
 bill unless by consent of all the parties to the suit. 8 
 
 § 101. Effect of an Appearance. — A general appearance waives 
 all objections to the form or manner of service of the subpoena, 1 
 including the objection that the defendant was not " found " and 
 did not reside within the district. 2 A general appearance also 
 waives au omission of the name of the defendant from the prayer 
 of process, provided he was named in another part of the bill. 3 
 A general appearance does not, however, waive an objection to 
 the jurisdiction of the court upon the ground of a lack of the 
 requisite difference of citizenship. 4 After a special appearance 
 for the purpose of objecting to the jurisdiction has been made, 
 and the objection overruled, the right to insist upon this objec- 
 tion on an appeal is not lost by a subsequent appearance and 
 defence to the suit upon the merits. 5 The court has power to 
 allow a general appearance to be changed by amendment to a 
 special appearance ; 6 or to be withdrawn. 7 
 
 § 102. "When an Appearance must be made. — " The appearance- 
 day of the defendant shall be the rule-day to which the subpoena 
 
 5 Butterworth v. Hill, 114 U. S. 128, 2 Sayles v. Northwestern Ins. Co., 2 
 132, 133. Curt. 212 ; Shields v. Thomas, 18 How. 
 
 6 Thayer v. "Wales, 5 Fisher's Pat. 253, 259 ; Toland v. Sprague, 12 Pet. 300, 
 Cas. 448 ; Romaine v. Union Ins. Co., 28 331 ; Butterworth v. Hill, 114 U. S. 128, 
 Fed. R. 625. But see Dorr v. Gibhoney, 132, 133; Provident Savings Life Assur- 
 3 Hughes, 382; National Furnace Co. v. ance Society v. Ford, 114 U. S. 635, 639. 
 Moline Malleable Iron Works, 18 Fed. R. But see Noyes v. Canada, 30 Fed. R. 
 863. 665. 
 
 7 Romaine v. Union Ins. Co., 28 Fed. 3 Segee v. Thomas, 3 Blatchf. 11 ; 
 R. 625. Buerk v. Imhaeuser, 8 Fed. R. 457. 
 
 8 Attorney-General v. Pearson, 7 Si- 4 Romaine v. Union Ins. Co., 28 Fed. 
 mons, 290, 302; Kentucky Silver Mining R. 625 ; U. S. R. S. 1 Supp. pp. 173, 175 ; 
 Co. v. Day, 2 Saw. 468, 473. 18 Sts. at L. 470 ; Act of March 3, 1875, 
 
 § 101. l Segee v. Thomas, 3 Blatchf. 11 ; § 5. 
 Goodyear v. Chaffee, 3 Blatchf. 268 ; Hale 5 Harkness v. Hyde, 98 U. S. 476. 
 
 v. Continental Life Ins. Co., 12 Fed. R. 6 United States v. Yates, 6 How. 605 ; 
 
 359; Provident Savings Life Assurance Hohorst v. Hamburg Amer. Packet Co., 
 
 Society v. Ford, 114 U. S. 635, 639 ; Rob- 38 Fed. R. 273. 
 
 inson v. National Stockyard Co., 12 Fed. 7 Rhode Island v. Massachusetts, 13 
 
 R. 361 ; s. c. 20 Blatchf. 513; Buerk v. Pet. 23. 
 Imhaeuser, 8 Fed. R. 457. 

 
 § 102.] WHEN AN APPEAKANCE MUST BE MADE. 163 
 
 is made returnable, provided he has been served with the process 
 twenty days before that day ; otherwise, his appearance-day shall 
 be the next rule-day succeeding the rule-day when the process 
 is returnable." 1 The first Monday of each month is a rule-day. 2 
 A defendant may appear at any time after the filing of the bill, 
 and before the time named in the rule has expired. 3 The court 
 has power to enlarge the time for an appearance, if special 
 cause therefor be shown. 4 
 
 § 102. i Rule 17. * Poulmey v. City of La Fayette, 12 
 
 2 Rule 2. Pet. 472. 
 
 3 Heyman v. Uhlman, U Fed. R ? 686.
 
 164 TAKING BILLS PRO CONFESSO. [CHAP. VII. 
 
 CHAPTER VII. 
 
 TAKING BILLS PRO CONFESSO. 
 
 § 103. When a Bill may be taken pro confesso. — If a defendant 
 fails to enter his appearance on or before the day at which the 
 writ is returnable, the bill may be taken as confessed, pro 
 confesso. 1 If a defendant fails to file a plea, answer, or demurrer, 
 to the bill on or before the rule-day next succeeding that of 
 entering his appearance, the plaintiff may have the bill taken pro 
 confesso, unless the defendant has had his time enlarged for 
 cause shown by a judge of the court. 2 A bill may be also taken 
 as confessed upon the failure of a defendant to answer within the 
 time allowed him after a demurrer or plea has been overruled. 3 
 In a proper case, part of a bill may be taken as confessed. 4 
 Thus, where the defendant had repeatedly failed to answer an 
 interrogatory, the parts of the bill which the same affected were 
 ordered taken as confessed. 5 It is uncertain whether, when the 
 defendant after answering the original bill fails to file a further 
 answer to material amendments thereof, the complainant is 
 entitled to have the whole bill taken as confessed, or only the 
 part unanswered. 6 It is doubtful whether a bill can be taken as 
 confessed against an infant or other person under a disability. 7 
 Certainly, it cannot before a guardian ad litem has been ap- 
 pointed. 8 Should the guardian refuse to answer, the safer 
 course for the complainant would be to obtain a reference to a 
 master and prove the allegations of the bill before him. 9 
 
 § 103. i Rule 12. (N. Y.), 589, 593, 594; Hawkins v. Crook, 
 
 2 Rule 18. 2 P. Wms. 559. 
 
 3 Suydam v. Beals, 4 McLean, 12. 7 Compare the positive language of 
 
 4 Suydam v. Beals, 4 McLean, 12, 15 ; Equity Rule 18, with Mills v. Dennis, 3 
 Hale v. Continental Life Ins. Co., 20 Fed. J. Ch. (N. Y.) 367 ; O'Hara v. MacCon- 
 R. 344. nell, 93 U. S. 151. 
 
 6 Hale v. Continental Life Ins. Co., 8 O'Hara v. MacConnell, 93 U. S. 151. 
 20 Fed. R. 344. 9 Mills v. Dennis, 3 J. Ch. (N. Y.) 
 
 6 Suydam v. Beals, 4 McLean, 12, 15; 367. 
 Trust & Fire Ins. Co. v. Jenkins, 8 Paige
 
 § 104.] PRACTICE IN TAKING A BILL PRO CONFESSO. 165 
 
 § 104. Practice in Taking a Bill pro confesso. — The practice 
 when a bill is taken pro confesso can be most satisfactorily de- 
 scribed in the following quotations from the Equity Rules, and 
 from a recent opinion by Mr. Justice Bradley. 1 When a defend- 
 ant fails to plead in time, " the plaintiff may, at his election, enter 
 an order (as of course) in the order-book, that the bill be taken 
 pro confesso; and thereupon the cause shall be proceeded in 
 ex parte, and the matter of the bill may be decreed by the court 
 at any time after the expiration of thirty days from and after the 
 entry of said order, if the same can be done without an answer, 
 and is proper to be decreed ; or the plaintiff, if he requires any 
 discovery or answer to enable him to obtain a proper decree, 
 shall be entitled to process of attachment against the defendant 
 to compel an answer, and the defendant shall not, when arrested 
 upon such process, be discharged therefrom, unless upon riling 
 his answer, or otherwise complying with such order as the court 
 or judge thereof may direct, as to pleading to or fully answering 
 the bill, within a period to be fixed by the court or judge, and 
 undertaking to speed the cause." 2 No service need be made 
 of the order taking the bill pro confesso. 8 " When the bill is 
 taken pro confesso the court may proceed to a decree at any 
 time after the expiration of thirty days from and after the en- 
 try of the order to take the bill pro confesso; and such decree 
 rendered shall be deemed absolute, unless the court shall, at 
 the same term, set aside the same, or enlarge the time for filing 
 the answer, upon cause shown, upon motion and affidavit of 
 the defendant ; and no such motion shall be granted unless 
 upon payment of the costs of the plaintiff in the suit up to 
 that time, or such part thereof as the court shall deem reason- 
 able, and unless the defendant shall undertake to file his an- 
 swer within such time as the court shall direct, and submit 
 to such other terms as the court shall direct, for the purpose of 
 speeding the cause." 4 After the term, a decree taking a bill as 
 confessed cannot be set aside on motion. 5 " A confession of facts 
 properly pleaded dispenses with proof of these facts, and is as 
 effective for the purposes of the suit as if the facts were proved ; 
 
 § 101. l Thomson v. Wooster, 114 U. 3 Bank of the United States v. White, 
 
 S. 104. 8 Pet, 262. 
 
 2 Rule 18. See Bead v. Consequa, 4 4 Rule 19. See Maynard v. Pomfret, 
 
 Wash. 174; O'Hara v. MacConnell, 93 3 Atk. 4(58; Heyni v. Heyn, Jacob, 49. 
 U. S. 150, 152. a Allen v. Wilson, 21 Fed. R. 881.
 
 166 TAKING BILLS PRO CONFESSO. [CHAP. VII. 
 
 and a decree pro confesso regards the statements of the bill as 
 confessed. By the early practice of the civil law, failure to ap- 
 pear at the day to which the cause was adjourned was deemed a 
 confession of the action, but in later times this rule was changed, 
 so that the plaintiff, notwithstanding the contumacy of the de- 
 fendant, only obtained judgment in accordance with the truth of 
 the case as established by an ex parte examination. Keller, Pro- 
 ceed. Rom. § 69. The original practice of the English Court of 
 Chancery was in accordance with the later Roman law. Hawkins 
 v. Crook, 2 P. Wms. 556. But for at least two centuries past 
 bills have been taken pro confesso for contumacy. Hid. Chief 
 Baron Gilbert says : ' Where a man appears by his clerk in court, 
 and after lies in prison, and is brought up three times in court by 
 habeas corpus, and has the bill read to him, and refuses to an- 
 swer, such public refusal in court does amount to a confession of 
 the whole bill. Secondly, when a person appears and departs 
 without answering, and the whole process of the court has been 
 awarded against him after his appearance and departure, to the 
 sequestration ; there also the bill is taken pro confesso, because 
 it is presumed to be true when he has appeared and departs in 
 despite of the court, and withstands all its process without an- 
 swering.' Forum Romanum, 36. Lord Hardwicke likened a 
 decree pro confesso to a judgment by nil dicit at common law, 
 and to judgment for plaintiff on demurrer to the defendant's 
 plea. Davis v. Davis, 2 Atk. 21. It was said in Hawkins v. Crook, 
 qua supra, and quoted in 2 Eq. Ca. Ab. 179, that ' the method in 
 equity of taking a bill pro confesso is consonant to the rule and 
 practice of the courts at law, where, if the defendant makes de- 
 fault by nil dicit, judgment is immediately given in debt, or in 
 all cases where the thing demanded is certain ; but where the 
 matter sued for consists in damages, a judgment interlocutory is 
 given ; after which a writ of inquiry goes to ascertain the dam- 
 ages, and then the judgment follows.' The strict analogy of 
 this proceeding in actions of law to a general decree pro confesso 
 in equity in favor of the complainant, with a reference to a mas- 
 ter to take a necessary account, or to assess unliquidated dam- 
 ages, is obvious and striking. A carefully prepared history of 
 the practice and effect of taking bills pro confesso is given in 
 Williams v. Corwin, Hopkins Ch. 471, by Hoffman, Master, in a 
 report made to Chancellor Sanford, of New York, in which the
 
 § 104.] PKACTICE IN TAKING A BILL PKO CONFESSO. 167 
 
 conclusion come to (and adopted by the Chancellor), as to the 
 effect of taking a bill pro confesso, was that ' when the allegations 
 of a bill are distinct and positive, and the bill is taken as con- 
 fessed, such allegations are taken as true without proofs,' and a 
 decree will be made accordingly ; but ' where the allegations of 
 a bill are indefinite, or the demand of the complainant is in its 
 nature uncertain, the certainty requisite to a proper decree must 
 be afforded by proofs. The bill, when confessed by the default 
 of the defendant, is taken to be true in all matters alleged with 
 sufficient certainty ; but in respect to matters not alleged with 
 due certainty, or subjects which from their nature and the course 
 of the court require an examination of details, the obligation to 
 furnish proofs rests on the complainant.' " 6 When the bill re- 
 lates to an unsettled account, a reference to a master is always 
 necessary. 7 " We may properly say, therefore, that to take a bill 
 pro confesso is to order it to stand as if its statements were con- 
 fessed to be true ; and that a decree pro confesso is a decree 
 based on such statements, assumed to be true, 1 Smith's Ch. 
 Pract. 153, and such a decree is as binding and conclusive as 
 any decree rendered in the most solemn manner. It cannot be 
 impeached collaterally, but only upon a bill of review, or [a bill] 
 to set it aside for fraud." 8 "A decree pro confesso is not a 
 decree as of course according to the prayer of the bill, nor merely 
 such as the complainant chooses to take it;" 9 but it should be 
 made " by the court according to what is proper to be decreed 
 upon the statements of the bill assumed to be true ; " 10 " the mat- 
 ter of the bill ought at least to be opened and explained to the 
 court when the decree is applied for, so that the court may see 
 that the decree is a proper one. The binding character of the 
 decree, as declared in Rule 19, renders it proper that this degree 
 of precaution should be taken." u " We have deemed it unne- 
 cessary to make any remarks as to the status of a defendant 
 before a master on a reference under a decree pro confesso. Both 
 parties in this case seem to have taken it for granted that the 
 
 6 Mr. Justice Bradley in Thomson v. 2 ° Mr. Justice Bradley in Thomson v. 
 
 Wooster, 114 U. S. 104, 110, 111. Wooster, 114 U. S. 104, 113; Andrews v. 
 
 " Pendleton v. Evans, 4 Wash. 391. Cole, 20 Fed. R. 410; Hose v. Woodruff, 
 
 8 Mr. Justice Bradley in Thomson v. 4 J. Ch. (N. Y.) 547, 548. 
 
 Wooster, 114 U. S. 104, 112. " Mr. Justice Bradley in Thomson v. 
 
 9 Mr. Justice Bradley in Thomson v. Wooster, 114 U. S. 104, 113, 114. 
 Wooster, 114 U. S. 104, 111, 112.
 
 168 TAKING BILLS PRO CONFESSO. [CHAP. VII. 
 
 rights of the defendants were the same as if the decree had been 
 made upon answer and proofs. In the English practice, it is 
 true, as it existed at the time of the adoption of our present 
 Rules (in 1842), the defendant, after a decree pro confesso and a 
 reference for an account, was entitled to appear before the mas- 
 ter, and to have notice of and take part in the proceedings, pro- 
 vided he obtained an order of the court for that purpose, which 
 would be granted on terms. 2 Daniell Ch. Pr. 804, 1st ed.; 
 ditto, 1358, 2d ed., by Perkins ; Heyn v. Heyn, Jacob, 40. The 
 former practice in the Court of Chancery of New York was sub- 
 stantially the same. 1 Hoffman Ch. Pr. 520 ; 1 Barb. Ch. Pr. 
 479. In New Jersey, except in plain cases of decree for the 
 foreclosure of a mortgage (where no reference is required), the 
 matter is left to the discretion of the court. Sometimes notice 
 is ordered to be given to the defendant to appear before the 
 master, and sometimes not ; as it is also in the Chancellor's dis- 
 cretion to order a bill to be taken pro confesso for a default, or to 
 order the complainant to take proofs to sustain the allegations of 
 the bill. Nixon Dig., Art. Chancery, § 21 ; Gen. Orders in 
 Chancery, XIV. 8-7 , Brundage v. Goodfellow, 4 Halst. Ch. 513. 
 As we have seen, by our 18th Rule in Equity, it is provided that 
 if a defendant make default in not filing his plea, demurrer, or 
 answer in proper time, the plaintiff may, as one alternative, enter 
 an order, as of course, that the bill be taken pro confesso, ' and 
 thereupon the same shall be proceeded ex parte? The old Rules, 
 adopted in 1822, did not contain this ex parte clause; they sim- 
 ply declared that if the defendant failed to appear and file his 
 answer within three months after appearance day, the plaintiff 
 might take the bill for confessed, and that the matter thereof 
 should be decreed accordingly; the decree to be absolute unless 
 cause should be shown at the next term. See Equity Rules VI. 
 and X. of 1822, 7 Wheat. VII., and Pendleton v. Evans, 4 Wash. 
 C. C. R. 336 ; OHara v. MacConnell, 93 U. S. 150. Under these 
 rules the English practice was left to govern the subsequent 
 course of proceeding, by which, as we have seen, the defendant 
 might have an order to permit him to appear before the master, 
 and be entitled to notice. Whether under the present rule a dif- 
 ferent practice was intended to be introduced is a question which 
 it is not necessary to decide in this case." 12 It has, however, 
 12 Mr. Justice Bradley in Thomson v. Wooster, 114 U. S. 104, 119, 120.
 
 § 104] PEACTICE IN TAKING A BILL PRO CONFESSO. 169 
 
 been held in the second circuit, that " Equity Rule 18 provides 
 that, after the order pro confesso, the cause shall proceed ex 
 parte ; but this does not mean without notice to a party who has 
 appeared in the cause. Such party is entitled to notice, and has 
 the right to be heard as to the form of the decree, aud upon such 
 other questions as can be presented upon the complainant's 
 pleadings and proofs. This is the uniform construction given 
 to the Rule throughout this circuit." 13 Where a bill for 
 the infringement of a patent alleges infringement of "the in- 
 vention " of the plaintiffs, and is taken as confessed, it seems 
 that it cannot be claimed in subsequent proceedings in the same 
 suit that the patent is void upon its face. 14 When there are 
 more than one defendant who are charged with a joint liability, 
 after the bill has been taken as confessed against one, no final 
 decree can be made against him, unless and until a decree is 
 entered against those who appearand defend the suit. 15 It seems 
 that a decree taking a bill as confessed is of no effect unless fol- 
 lowed by, or included in a final decree. 16 The entry of a final 
 decree by default upon notice to the defendants, without the pre- 
 vious entry of a formal order taking the bill as confessed, is an 
 irregularity for which the decree cannot be set aside upon mo- 
 tion after the term at which it is rendered. 17 But a decree 
 entered pro confesso will be set aside upon motion at a subse- 
 quent term, when entered before the time allowed the defendant 
 by the rules to plead to the bill. 18 An appeal can be taken from 
 the final decree after a bill has been taken as confessed. 19 Upon 
 such an appeal the decree may be reversed for a defect in the 
 service of the subpoena, 20 for failure to appoint a guardian ad litem 
 when required, 21 and it seems for a want of indispensable par- 
 ties. 22 Otherwise, the only question for the consideration of the 
 court is whether the allegations in the bill are sufficient to 
 support the decree. 23 
 
 13 Judge Wallace in Bennett v. Hoef- 18 Fellows v. Hall, 3 McLean, 281. 
 ner, 17 Blatchf. 341, 342. " Frow v. De La Vega, 15 Wall. 552; 
 
 14 Dobson v. Hartford Carpet Co., 114 Butterworth v. Hill, 114 U. S. 128. 
 
 U. S. 439, 446, 447. 2) o'Hara v. MacConnell, 93 U. S. 150; 
 
 15 Frow v. De La Vega, 15 Wall. 552. Butterworth v. Hill, 114 U. S. 128. 
 
 1B Lockhart v. Horn, 3 Woods, 542, - 1 O'Hara v. MacConnell, 93 U. S. 150. 
 
 548. 22 o'Hara t\ MacConnell, 93 U. S. 150 
 
 17 Linder v. Lewis, 1 Fed. R. 378. ' a Masterson v. Howard, 18 Wall. 99.
 
 170 DEMURRERS. [CHAP. VIII. 
 
 CHAPTER VIII. 
 
 DEMURRERS. 
 
 § 105. Definition and General Characteristics of a Demurrer. — 
 A demurrer is a pleading which admits the truth of a bill, but 
 claims that the defendant should be excused from answering 
 thereto and the complainant be denied relief on account of some 
 irregularity or insufficiency existing in it. As the name denotes, 
 demurrers were borrowed from the common law. 1 They are so 
 termed because the defendant demoratur, or will go no farther. 2 
 A speaking demurrer is one that introduces a new fact or aver- 
 ment which is necessary to support the demurrer, and does not 
 appear distinctly on the face of the bill. 3 Such a demurrer is 
 always bad, and will be overruled. 4 But in order to constitute a 
 speaking demurrer, the fact or averment introduced must be 
 one which is necessary to support the demurrer and is not found 
 in the bill ; the introduction of immaterial facts, or averments, 
 or of arguments, is improper, but constitutes mere surplusage 
 and will not vitiate the demurrer. 5 A demurrer is also bad if it 
 relies for its support upon averments in an answer. 6 A demurrer 
 must not be addressed to a point within the discretion of the 
 court; if so, it will be overruled. 7 It has been held, that when 
 the bill shows that a defendant is not an inhabitant of the 
 district that defect may be raised by demurrer. 8 A demurrer 
 cannot be filed to an answer. 9 
 
 § 106. Admissions by a Demurrer. — A demurrer admits the 
 
 § 105. ! Langdell's Eq. PI. §§ 53, 92. 5 Daniell's Ch. Pr. (2d Am. ed.) 657 ; 
 
 2 Daniell's Ch. Pr. (5th Am. ed.) 543; Cawthorn v. Chalie, 2 Sim. & S. 127; 
 3 Bl. Com. 314. Davies v. Williams, 1 Simons, 5. 
 
 3 Edsell v. Buchanan, 4 Brown Ch. C. 6 Chicago, St. Louis & New Orleans 
 254 ; Davies v. Williams, 1 Simons, 5, 7 ; R. R. Co. v. Macomb, 2 Fed. R. 18. 
 Lamb v. Starr, Deady, 350 ; Daniell's Ch. 7 Verplank v. Caines, 1 J. Ch. (N. Y.) 
 Pr. (2d Am. ed.)656, note 2; Story's Eq. 57. 
 
 pi. § 448. 8 Reinstadler v. Rehls, 33 Fed. R. 
 
 * Edsell ». Buchanan, 4 Brown Ch. C. 308 ; Miller Magee Co. v. Carpenter, 34 
 
 254 ; Story's Eq. PI. § 448; Daniell's Ch. Fed. R. 433. But see § 101. 
 Pr. (2d Am. ed.) 656, note 2. 9 Crouch v. Kerr, 38 Fed. R. 549.
 
 § 106.] ADMISSIONS BY A DEMURRER. 171 
 
 truth of the allegations of fact in the bill. 1 " As a matter of 
 construction of an ambiguous clause, the court is bound to adopt 
 that interpretation which is least favorable to the plaintiff; but 
 the defendant is not entitled to press this principle so far as to 
 draw any inferences of fact he pleases which may happen to be 
 not inconsistent with the averments of the bill." 2 It has been 
 said that " reasonable presumptions are admitted by demurrer as 
 well as the matters expressly alleged." 3 The court will not infer 
 from an allegation, that a fraud was committed at a time beyond 
 the limit of the Statute of Limitations, that the fraud was then 
 discovered. 4 " A demurrer only admits 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 instru- 
 ment itself is set forth in the bill, or a copy is annexed, 
 against a construction required by its terms, nor the correct- 
 ness of the ascription of a purpose to the parties when not 
 justified by the language used. The several averments of the 
 plaintiff in the bill as to his understanding of his rights, and of 
 the liabilities and duties of others under the contract, can, there- 
 fore, exert no influence upon the mind of the court in the dis- 
 position of the demurrer." 5 " Though the authorities are by no 
 means unanimous, the weight of opinion is in favor of the prop- 
 osition that where profert is made of a recorded paper it is for 
 all purposes presented to the court as a part of the pleading, and 
 an objection thereto may be taken by demurrer." 6 A demurrer 
 does not admit conclusions of law ; and in the construction of 
 the bill upon the argument they may be disregarded. 7 Such, for 
 
 § 106. ! Bailey v. Birkenhead, Lan- 5 Mr Justice Field in Dillon v. Bar- 
 
 cashire & Cheshire Junction Ry. Co., nard, 21 Wall. 430, 437, 438. See also 
 
 12 Beav. 433, 443 ; Pacific R. R. of Mis- s. c. 1 Holmes, 386; United States v. 
 
 souri v. Missouri Pacific Ry. Co, 111 Ames, 99 U. S. 35, 45. 
 
 U. S. 505, 522; Boyer v. Boyer, 113 U. S. 6 Coxe, J., in Bogart v. Hinds, 25 Fed. 
 
 689, 701. R. 484, citing Knott v. Burleson, 2 G. 
 
 2 Sir Page Wood, V. C, in Simpson v. Greene (Iowa), 600; Wilder v. M'Cor- 
 Fogo, 1 J. & H. 18, 23 ; s. c. 6 Jurist n. s. mick, 2 Blatchf . 81, 35; Grahame v. Cooke, 
 949. See Union Pac. Ry. Co. v. Mercer, 1 Cranch C. C. 116; Douglass v. Rath- 
 28 Fed. R. 9. bone, 5 Hill (N. Y.), 143 ; Rantin v. Rob- 
 
 3 Mr. Justice Clifford in Amory v. Law- ertson, 2 Strobh. Law (S. C), 366; 1 
 rence, 3 Clifford, 523, 536. Chitty's PI. 415, 416. 
 
 4 Sheldon v. Keokuk No. Line Packet 7 Dillon v. Barnard, 21 Wall. 430; Wil- 
 
 Co., 8 Fed. R. 769, 777; Johnson v. son v. Gaines, 103 U. S. 417; Packet 
 
 Powers, 13 Fed. R. 315; Jones v. Slaw- Company v. Catlettsbnrg, 105 U. S. 559 ; 
 
 son. 83 Fed. R. 632, G36. Transportation Company v. Parkersburgj
 
 172 DEMURRERS. [CHAP. VIII. 
 
 example, are the allegations that a tax is " unreasonable and 
 excessive," without the statement of any valid reasons for so 
 considering it ; 8 that a fee charged by an ordinance styling it 
 wharfage "is not real wharfage, but a duty on tonnage." 9 
 " The words ' fraud ' and ' conspiracy ' alone, no matter how 
 Often repeated in a pleading, cannot make a case for the inter- 
 ference of a court of equity. Until connected with some specific 
 acts for which one person is in law responsible to another, they 
 have no more effect than other words of unpleasant significa- 
 tion." 10 An averment that a thing was done with the intent to 
 defraud is an allegation of fact. 11 A demurrer does not admit a 
 false allegation concerning a fact of which the court will take 
 judicial notice. 12 An allegation as to the future effect of an act 
 threatened by the defendant will, however, be admitted by a 
 demurrer. 13 
 
 § 107. Demurrers to Parts of Bills. — A demurrer may be to 
 the whole or to a part of a bill. 1 Separate demurrers may be filed 
 for different causes to separate parts of a bill. 2 If only a part of 
 the bill be demurred to, the demurrer must be accompanied by 
 a plea or answer to what remains. 3 The defendant ma} r demur 
 to part, plead to part, and answer as to the residue. 4 Such a 
 mode of pleading is now, however, very rare ; for the same de- 
 fenses can usually be embraced with more convenience and safety 
 in an answer. 5 " If a demurrer is too general, that is, if it covers, 
 or is applied to the whole bill, when it is good to a part only ; or 
 if it is a demurrer to a part of a bill only, but yet is not good to 
 the full extent which it covers, but is so to a part only, it will be 
 overruled ; for it is a general rule that a demurrer (it is other- 
 wise as to a plea) cannot be good as to a part which it covers, 
 and bad as to the rest, and therefore it must stand or fall alto- 
 
 107 U. S. 6P1 ; Louisville & Nashville Compare Louisville & Nashville R. R. Co. 
 
 R. R. Co. v. Palmes, 109 U. S. 244. v. Palmes, 109 U. S. 244, 253. 
 
 8 Packet Company v. Catlettsburg, 105 13 St. Louis v. Knapp Company, 104 
 U. S. 559. U. S. 658. 
 
 9 Transportation Company v. Parkers- §107. 1 Rule 32. 
 
 burg, 107 U. S. 691. 2 North v. Earl of Strafford, 3 P. Wms. 
 
 10 Chief Justice Waife in Ambler v. 148; Roberdeau v. Rous, 1 Atk. 544; 
 Clioteau, 107 U S. 586, 591. For allega- Daniell's Ch. Pr. (5th Am. ed.) 584. 
 tions held sufficient, see Pacific R. R. of 3 See Story's Eq. PI. § 442; Daniell's 
 Mo. v. Missouri Pacific Ry. Co., Ill U. S. Ch. Pr. (5th Am. ed.) 583. 
 
 i 505. * Rule 32. 
 
 « Piatt v. Mead, 9 Fed. R. 91. 5 Rule 39. 
 
 11 Taylor v. Barclay, 2 Simons, 213.
 
 § 107.] DEMUEEEES TO PAETS OF BILLS. 173 
 
 gether." 6 The court may, however, allow the defendant to 
 amend his demurrer upon narrowing its terms. 7 The equity 
 rules, changing the former practice, now provide that " no de- 
 murrer or plea shall be overruled upon argument, only because 
 such demurrer or plea shall not cover so much of the bill as it 
 might by law have extended to." 8 Formerly, when a defendant 
 filed a plea or answer to the same part of a bill as he demurred to, 
 he was held to have waived his demurrer, which would be over- 
 ruled by the court. 9 But a demurrer by one defendant was not 
 overruled by a plea or answer filed by another. 10 Now, how- 
 ever, the rules declare that " no demurrer or plea shall be held 
 bad, and overruled upon argument, only because the answer of 
 the defendant may extend to some part of the same matter as 
 may be covered by the demurrer or plea.'" u It has been held, 
 under this rule, that a demurrer to the whole bill is not over- 
 ruled by plea or answer : 12 but the defendant may be compelled 
 upon motion to elect between such a demurrer and the answer 
 or plea; 13 and if he elect to stand by his demurrer, it seems that 
 he will thereby waive his right to answer should his demurrer 
 be overruled. 14 By proceeding to an argument of the demurrer, 
 an objection of this nature will be waived. 15 The English courts 
 have held, that a defendant cannot answer to the relief of a bill 
 and demur to the discovery, unless he can rest his demurrer upon 
 one of the recognized grounds on account of which a witness is 
 always excused from answering. 16 A demurrer which is good as 
 
 6 Story's Eq. PI. § 443; Metcalf v. 9 Story's Eq. PI. § 443; Dawson v. 
 Hervey, 1 Ves. Sen. 248; Verplank v. Sadler, 1 Sim. & S. 537, 542; LangdelTa 
 Caines, 1 J. Ch. (N. Y.) 57; Higin- Eq. PI. § 103. 
 
 botham v. Burnet, 5 J. Ch. (N. Y.) 184 ; " Dakin v. Union Pacific Ry. Co., 5 
 
 Atwill v. Ferrett, 2 Blatchf. 39; Brandon Fed. R. 665. 
 
 Manue. Co. v. Prime, 14 Blatchf. 371 ; " Rule 37. 
 
 8. c. 3 Bann. & A. Pat. Cas. 191 ; Heatli 12 Hayes v. Dayton, 8 Fed. R. 702, 706. 
 
 v. Erie Ry. Co., 8 Blatchf. 347 ; Equitable Contra, Crescent City Live Stock Co. v. 
 
 Life Ass. Soc. v. Patterson, 1 Fed. R. 126. Butchers' Union Live Stock Co., 12 Fed. 
 
 7 Baker v. Mellish, 11 Ves. 70; Gregg R. 225; Adams v. Howard, 21 Off. Gaz. 
 v. Legh, 4 Madd. 192, 207 ; Atwill v. 264 ; s. c. 9 Fed. R. 347. 
 
 Ferrett, 2 Blatchf. 39, 49. " Adams v. Howard, 21 Off. Gaz. 264 ; 
 
 8 Rule 36, which follows the 36th Order s. c. 9 Fed. R. 347. See United States v. 
 in Chancery of August, 1841. See, how- Am. Bell Telephone Co., 30 Fed. R. 523. 
 ever. Dell v. Hale, 2 Y. & C. N. R. 1 ; 1 4 Adams v. Howard, 21 Off. Gaz. 264 ; 
 Atwill v. Ferrett, 2 Blatchf. 39 ; Heatli s. c. 9 Fed. R. 347 ; Orendorf v. Bud- 
 r. Erie Ry. Co., 8 Blatchf. 347; Brandon long, 12 Fed. R. 24. 
 
 Manuf. Co. v. Prime, 14 Blatchf. 371; 15 Hayes v. Dayton, 8 Fed. R. 702, 700. 
 8. c. 3 Bann. & A. Pat. Cas. 191; Equitable 16 Dell v. Hale, 2 Y. & C. N. R. 1 ; 
 Life Ass. Soc. v. Patterson, 1 Fed. R. 126. Brownsword v. Edwards, 2 Ves. Sen
 
 174 DEMURRERS. [CHAP. VIII. 
 
 to the relief will also bar the discovery ; although if the bill be 
 good for discovery but not for relief, the defendant does not 
 prejudice a demurrer filed by him to the relief by answering as 
 to the discovery. 17 A demurrer which is good as to the dis- 
 covery need not be good as to the relief. 18 
 
 § 108. Classification of Demurrers to the Relief. — Demurrers to 
 the relief claim that for some reason apparent upon the face of 
 the bill the plaintiff is not entitled to the relief prayed for in it. 
 They are classified by Mitford, afterwards Lord Redesdale, sub- 
 stantially as follows. 1 Demurrers to the relief are founded on 
 objections to the jurisdiction ; to the person ; or to the matter of 
 the bill, either in substance or in form. Demurrers to the juris- 
 diction are allowed either (1) because the subject of the suit is 
 not within the jurisdiction of a court of equity ; or (2) because 
 some other court of equity has the proper jurisdiction. A 
 demurrer of this last class is much more frequent now than 
 formerly. For the rule, that in a superior court of general 
 jurisdiction the presumption is that nothing shall be intended 
 out of its jurisdiction that is not shown or intended to be so,' 2 
 does not apply to the courts of the United States, whose juris- 
 diction is confined to what is expressly given them by the Con- 
 stitution and statutes ; and must always appear upon the record. 3 
 It has been held that the objection that one of two plaintiffs 
 suing to enforce a common, not a joint, right is a citizen of the 
 same State as a defendant, cannot be raised by a demurrer to 
 the whole bill. 4 Causes of demurrer to the person are, that it 
 appears upon the face of the bill that the plaintiff has not the 
 legal capacity to sue, — either at all, as an alien enemy, or an 
 unincorporated association suing as a corporation ; or alone, as 
 an infant, idiot, lunatic, and in some States a married woman. 5 
 Demurrers to the substance of a bill are that it appears upon 
 
 243- Daniell'8 Ch. Pr. (2d Am. ed.) §108. * Mitford's PI. ch. 11, § 2. 
 
 605-607. 2 Daniell's Ch. Pr. (2d Am. ed.) 615; 
 
 " Daniell's Ch. Pr. (2d Am. ed.) 604, Earl of Derby v. Duke of Athol, 1 Ves. 
 
 605 ; Langdc41's Eq. PI. § 103 ; Story's Sen. 203. 
 
 Eq. PI. § 312 ; Rules 36, 37 ; Jefferys v. 3 Turner v. Bank of North America, 4 
 
 Baldwin, Amb. 164 ; Hodgkin v. Longden, Dall. 8 ; Godfrey v. Terry, 97 U. S. 171. 
 
 8 Ves. 2 ; Todd v. Gee, 17 Ves. 273. 4 Nebraska City National Bank v. Ne- 
 
 i 8 Atw'ill v. Ferrett,' 2 Blatchf. 39, 43; braska City Hydraulic Gas Light Co., 14 
 
 Heath v. Erie lly. Co., 8 Blatchf. 348 ; Fed. R. 763. But see Hodge v. North Mia- 
 
 Farmer v. Calvert Lithographing Co., 1 souri R. R. Co., 1 Dill. 104. 
 
 Flippin, 228. 6 See Chapter II.
 
 § 108.] CLASSIFICATION OF DEMURRERS TO THE RELIEF. 175 
 
 the face of the bill : (1) That the plaintiff has no interest in 
 the subject-matter of the bill. It has been held that the objec- 
 tion that one of two plaintiffs has no interest in the subject- 
 matter can be raised by a general demurrer for want of equity. 6 
 (2) That the defendant is not answerable to him, but to some 
 other person. (3) That the defendant has no interest in the 
 subject-matter of the suit. (4) That the plaintiff is not en- 
 titled to the relief he prays ; but if the bill show a case for some 
 relief, and yet ask for too much or the wrong relief, it is not 
 demurrable, provided it contain the prayer for general relief. 7 
 (5) That the value of the. subject-matter is beneath the dignity 
 of the court. In England the Court of Chancery declined to 
 interfere when the value of the matter in dispute was less than 
 ten pounds, except in suits brought by or on behalf of charities, 
 under bills to obtain relief on account of fraud, or to establish a 
 right. 8 In the Circuit Courts of the United States the bill 
 should show affirmatively that the matter in dispute exceeds two 
 thousand dollars, 9 except in certain cases for which the statutes 
 specially provide. 10 (6) That the bill does not embrace the whole 
 matter concerning which the suit is brought, and which is 
 capable of being immediately disposed of, so that there is danger 
 of the defendant's being harassed with other suits about the 
 same. 11 (7) That there is a want of proper parties, plaintiff or 
 defendant. 12 (8) That there is a misjoinder 13 of parties plaintiff. 
 A superfluity of defendants, not accompanied by multifarious- 
 ness, is the subject of objection by those only who were im- 
 properly joined. 14 (10) That the plaintiff's remedy is barred by 
 length of time or laches. 16 When a bill praying an injunction to 
 
 6 Hodge v. North Missouri R. R., 1 worth v. Laycock, 1 Vern. 245; Mar- 
 Dillon, 104. But see Nebraska City Na- grave v. Le Hooke, 2 Vern. 207. 
 
 tional Bank v. Nebraska City Hydraulic 12 Dwight v. Central Vt. R. R. Co., 9 
 
 Gas Light Co., 14 Fed. R. 763. ' Fed. R. 785. 
 
 7 Patrick v. Isenhart, 20 Fed. R. 339 ; is Walker v. Powers, 104 TJ. S. 245 ; 
 Whitbeck v. Edgar, 2 Barb. Ch. (N. Y.) Lansdale v. Smith, 106 U. S. 391 ; Taylor 
 106. v. Holmes, 14 Fed. R. 498 ; Markey v. 
 
 8 Darnell's Ch. Pr. (2d Am. ed.) 378, Mutual Benefit Life Ins. Co., 6 Ins. L. J. 
 379; Brace v. Taylor, 2 Atk. 253; Moore 537 ; Wollensak v. Reilier, 115 U. S. 96. 
 v. Lyttle, 4 J. Ch. (N. Y.) 183. 14 Cherrey v. Monro, 2 Barb. Ch. (N. Y.) 
 
 9 United States v. Pratt Coal & Coke 618 ; Toulmin v. Hamilton, 7 Ala. 362. 
 Co., 18 Fed. R. 708 ; 24 St. at L. ch. 373. But see Bank v. Carrollton R. R., 11 
 But see Sharon v. Terry, 36 Fed. R. 337. Wall. 624. 
 
 10 See §§ 15, 16. 15 Maxwell v. Kennedy, 8 How. 210 ; 
 
 11 Anon., 2 Chancery Cases, 164 ; Pure- Badger v. Badger, 2 Wall. 87, 94 ; Marsh v. 
 foy v. Purefoy, 1 Vern. 29; Shuttle- Whitmore, 21 Wall. 185 ; Sullivan v. Port-
 
 176 DEMURRERS. [CHAP. VIII. 
 
 restrain the infringement of a reissued patent sets out or exhibits 
 both the original and the reissued patent, and it appears from 
 inspection that the sole object of the reissue was to enlarge and 
 expand the claims of the original, and that a delay of two or 
 three years has taken place in applying for the reissue, not 
 explained by special circumstances giving sufficient ground for 
 the delay, the question of laches is a question of law arising on 
 the face of the bill, which avails as a defense, upon a general 
 demurrer for want of equity. 16 If it appears by the face of the 
 bill that the case of the complainant is barred by the statute of 
 limitations, it is demurrable. 17 A demurrer will also be sustained 
 where the bill shows that the plaintiff's case is repugnant to the 
 statute of frauds. 18 (11) That the bill is multifarious. 19 It has 
 been held that only such defendants as would suffer by the mul- 
 tifariousness can raise this objection. 20 Or (12) that there is 
 another suit pending between the parties for the same cause 
 of action. Demurrers for insufficiency as to form are eilher : (1) 
 That the plaintiff's place of abode is not stated ; or that a compli- 
 ance has not been made with any of the other requisites of Rule 
 20. 21 (2) That the facts essential to the plaintiff's right and 
 within his own knowledge are not alleged positively. 22 (3) That 
 the bill is deficient in certainty. 23 (4) That the plaintiff does 
 not in his bill offer to do equity, when it is the custom of 
 the court to require him to do so. 2 * (5) That the bill is not 
 signed by counsel. 25 (6) That the bill is not supported by an 
 affidavit when one is necessary. 26 A demurrer to the relief 
 will not lie upon the ground that the bill contains irrelevant 
 matter. The proper remedy for this is an exception for im- 
 
 land & K. Railroad Company, 94 U. S. 19 See §§ 71-75. 
 
 806; Brown v. County of Buena Vista, -> Atwill v. Ferrett, 2 Blatchf. 39, 44; 
 
 95 U. S. 161; Godden v. Kimmell, 99 Buerk v. Imhaeuser, 8 Fed. R. 457; Hill 
 
 U. S. 201 ; National Bank v. Carpenter, v. Bonaffon, 2 Weekly Notes of Cases 
 
 101 U. S. 567. (Pa ■). 356. 
 
 is Wollensak v. Reiher, 115 U. S. 96, 21 Mitford's PL ch. 2, § 2 ; Rowley v. 
 
 101. Eceles, 1 Sim. & S. 511. 
 
 « Godden v. Kimmell, 99 U. S. 201 ; - 2 Mitford's Pl.ch.2,§ 2; Daniell's Ch. 
 
 National Bank v. Carpenter, 101 U. S. Pr. 412, 625. 
 
 567; Wisnerr. Barnet, 4 Wash. 631. But » Taylor v. Holmes, 14 Fed. R. 498; 
 
 see Sullivan v. Portland & Kennebec R. Goldsmith v. Gilliland, 22 Fed. R. 865. 
 R. Co., 94 TJ. S. 806, 811 ; Doe v. Hyde, 24 United States v. Pratt Coal & Coke 
 
 114 U.' S. 247 ; Philippi v. Philippe," 115 Co., 18 Fed. R. 708. See § 82. 
 U. S. 151. 25 R u l e 24; Dwight v. Humphreys, 3 
 
 18 Randall v. Howard, 2 Black, 585, M'Lean, 104. 
 589. * Findlay v. Hinde, 1 Pet. 241, 244.
 
 § 109.] DEMURRERS TO THE DISCOVERY. 177 
 
 pertinence. 27 Neither is a bill demurrable because indispensable 
 parties, whom it names and against whom it prays process, have 
 not been served with subpoenas to appear and answer. 28 If any 
 part of the relief prayed is proper the demurrer will be sustained. 29 
 § 109. Demurrers to the Discovery. — A demurrer to the dis- 
 covery claims that, for some reason apparent upon the face of 
 the bill, the defendant should not be obliged to answer so much 
 thereof as his demurrer covers. Professor Langdell says : " A 
 demurrer to discovery indeed is not in its nature a demurrer at 
 all, but a mere statement in writing that the defendant refuses 
 to answer certain allegations in the bill, for reasons which appear 
 upon the face of the bill, and which the demurrer points out." * 
 A defendant may thus demur because (1) his answer may sub- 
 ject him to a pain, penalty, or forfeiture; 2 (2) that it is imma- 
 terial to the purposes of the suit ; 3 (3) that it would involve a 
 breach of some confidence which it is the policy of the law to 
 preserve inviolate, 4 as a professional confidence, 5 or one obtained 
 in the course of a public office; 6 (4) that the matters of which 
 a discoveiy is sought pertain exclusively to the defendant's case; 7 
 (5) according to the old rule, because the defendant has, " in 
 conscience, a right equal to that claimed by a person filing a bill 
 against him, though not clothed with a perfect legal title," 8 as, 
 if he be a purchaser in good faith, and for a valuable consider- 
 ation, without any notice of the plaintiff's claim. 9 Where the 
 complainant is the only person who can insist upon the penalty 
 or forfeiture, and he waives it in his bill, he may compel a dis- 
 
 27 Pacific Railroad of Missouri v. Mis- 4 Story's Eq. PI. § 547. 
 
 souri Pacific Railway Co., Ill U. S. 505, 5 Greenough v. Gaskell, 1 Myl. & K. 
 
 522 ; Rule 26. 100 ; Story's Eq. PI. § 547, and cases 
 
 28 Kilgour v. New Orleans Gas Light cited. 
 
 Co., 2 Woods, 145. 6 Smith v. East India Co., 1 Phillips, 
 
 29 Chicago, M. & St. P. Ry. Co. v. 50; Attorney-General r. London, 12 Bea v. 
 Hartshorn, 30 Fed. R. 541. 8; Worthington v. Scribner, 109 Mass. 
 
 § 109. * Langdell'a Eq PL § 97. 487, 493. 
 
 2 Stewart v. Drasha, 4 M'Lean, 563; 7 Bolton v. Corporation of Liverpool, 
 Atwill v. Ferrett, 2 Blatchf. 39; United 1 Myl. & K. 88; Daniell's Ch. Pr. (2d 
 States v. White, 17 Fed. R. 561, 565; Am. ed.) 645-648. 
 
 Paxton v. Douglas, 19 Ves. 225; Story's 8 Daniell's Ch. Pr. (2d Am. ed.) 635, 
 
 Eq. PL §§ 575-599. 636. 
 
 3 Harvey v. Morris, Rep. temp. Finch, 9 Jerrard v. Saunders, 2 Ves. Jr. 454; 
 214; Daniell's Ch. Pr. (2d Am. ed.) 636, Glegg v. Legh, 4 Madd. 193; Langdell's 
 637. But see Pacific Railroad of Missouri Eq. PL § 188. 
 
 v. Missouri Pacific Railway Co., Ill U. S. 
 505, 522. 
 
 12
 
 178 DEMURRERS. [CHAP. VIII. 
 
 covery. 10 In certain cases, a defendant may be obliged to answer 
 to a charge of a fraud which might subject him to a criminal 
 prosecution. 11 An English case holds that a discovery can be 
 compelled although a defendant might thereby admit his guilt of 
 an offence against the criminal laws of a foreign country. 12 De- 
 murrers to the discovery are now rarely filed. For the objections 
 to the discovery do not usually appear upon the face of a bill, 
 and when they do, it seems that, since the equity rules, they can 
 now in all cases be taken by answer. 13 A demurrer to an inter- 
 rogatory that has been already answered cannot raise the ques- 
 tion whether the answer to it is sufficient. 14 The subject of 
 discovery is of much less importance now than formerly ; and 
 the curious reader is therefore referred to the works of Wigram 
 and Hare for a full discussion of it. 
 
 § 110. Of what Defects Advantage should be taken by Demurrer. — 
 Advantage can be taken of most defects in a bill by answer, as 
 well as by demurrer. But objections to defects in the form of a 
 bill, except possibly those which are required by the equity 
 rules, 1 can only be raised by demurrer. 2 Such is an omission to 
 allege that two defendants infringed a patent jointly. 3 If the 
 want of equity of the plaintiff's case be clearly apparent upon 
 the face of the bill, an omission to demur may be a ground for 
 refusing the defendant costs at the hearing. 4 The objection that 
 the plaintiff has an adequate remedy at law must be specifically 
 raised in a demurrer, plea, or answer. 5 
 
 § 111. "When a Demurrer should be Filed. — " It shall be the 
 duty of the defendant, unless his time shall be otherwise en- 
 larged, for cause shown by a judge of the court upon motion for 
 that purpose, to file his plea, demurrer, or answer to the bill in 
 
 1U Mason v. Lake, 2 Brown P. C. 405 ; § 110. * See National Bank v. Insur- 
 
 Lord Uxbridge v. Staveland, 1 Ves. Sen. ance Company, 104 U. S. 54, 76. 
 
 56; Atwill r^Ferrett, 2 Blatchf. 39. • Daniell's Ch. Pr. (2d Am. ed.) 453; 
 
 11 Dummer i>. Corporation of Chippen- Story's Eq. PL §§ 453, 528; Hook v. 
 ham, 14 Ves. 245, 251 ; Story's Eq. PI. Dorman, 1 Sim. & S. 227 ; Crosse v. Bed- 
 § £78; Daniell's Ch. Pr. (2d Am. ed.) ingfield, 12 Simons, 35 ; Findlay v. Hinde, 
 631,632. 1 Pet. 244; Fischer v. O'Shaughnessey, 
 
 12 King of Two Sicilies v. Willcox, 1 6 Fed. R. 92. 
 
 Simons n. s. 301. See also United States 3 Fischer v. O'Shaughnessey, 6 Fed. R. 
 
 of America v. McRae, L. R. 4 Eq. 327 ; 92. 
 
 s. c. on appeal, L. R. 3 Ch. App. 79. 4 Harland v. Bankers' & M. Tel. Co., 32 
 
 13 See Rules 39, 44. Fed. R. 305. 
 
 14 Chicago, St. Louis & New Orleans 5 Reynes v. Dnmont, 130 U. S. 354 ; 
 R. R. Co. v. Macomb, 2 Fed. R. 18. Kilburn v. Sunderland, 130 U. S. 505.
 
 § 114] FORM OF A DEMURRER. 179 
 
 the clerk's office on the rule-day next succeeding that of entering 
 his appearance. In default thereof, the plaintiff may at his elec- 
 tion enter an order (as of course) in the order-book, that the bill 
 be taken pro confesso ; and thereupon the cause shall be pro- 
 ceeded in ex parte, and the matter of the bill may be decreed by 
 the court at any time after the expiration of thirty days from and 
 after the entry of said order, if the same can be done without an 
 answer and is proper to be decreed." l The demurrer may be 
 filed, even after the rule-day, at any time before an order has 
 been entered directing that the bill be taken pro confesso, 2 - or 
 after such an order by leave of the court. 3 
 
 § 112. Title of Demurrer. — A demurrer is usually entitled sub- 
 stantially thus: "The demurrer of John Stiles to the bill of 
 complaint of Richard Roe." 1 If accompanied by a plea or 
 answer, or both, it should be called in the title " the demurrer 
 and plea," or " the demurrer and answer," or " the demurrer, 
 plea, and answer." 2 When it is to an amended bill, it need not 
 be expressed in the title to be a demurrer to both the original 
 and the amended bill ; but if designated as a demurrer to the 
 amended bill, that will be sufficient. 3 
 
 § 113. Protestation. — After the title formerly followed the 
 clause, " This defendant, by protestation, not confessing all or 
 any of the matters and things in the said complainant's bill 
 contained, to be true in such manner and form as the same are 
 therein set forth and alleged." 1 This was a practice borrowed 
 from the common law, and was probably intended to avoid con- 
 clusion in another suit; 2 but it is a needless form, 3 and may 
 well be omitted. 
 
 § 114. Statement of the Extent of the Demurrer. — If a demurrer 
 be not to the whole bill, it must clearly express those parts which 
 it is designed to cover. 1 " And this must be done not by way 
 of exception, as by demurring to all except certain parts of 
 
 § 111. ! Rule 18. 2 Mitford's PI. ch. 2, § 2 ; Taylor v. 
 
 2 Rule 32 ; Oliver v. Decatur, 4 Cranch Holmes, 14 Fed. R. 408. 
 
 C. C 458. 8 Story's Eq. PI. § 452. 
 
 8 Rule 32. § 114. J Devonslier v. Newenliam, 2Sch. 
 
 § 112. i Daniell's Ch. Pr. (2d Am. ed.) & Lei 199; Chetwynd v. Lindon, 2 Ves. 
 
 652. Sen. 450; Salkelil v. Science, 2 Vcs. Sen. 
 2 Daniell's Ch. Pr. (2d Am. ed.) 652, 107; Atwill v. Ferrett, 2 Blatchf. 39; 
 
 653. Chicago, St. L. & N. O. R. R. Co. v. Ma- 
 8 Daniell's Ch. Pr. (2d Am. ed.)653; comb, 2 Fed. R. 18; Daniell's Ch. Pr. 
 
 Smith v. Bryon, 3 Madd. 428. (2d Am. ed.) 653, G54; Story's Eq. PL 
 
 § 113. i Story's Eq. PI. § 455, n. 3. §§ 457, 458.
 
 180 DEMURRERS. [CHAP. VIIL 
 
 the bill, but by a positive definition of the parts to which the 
 defendant seeks to avoid making any answer." 2 A special de- 
 murrer should point out specifically by paragraph, page, or folio, 
 or in some other distinct form of reference, the parts of the bill 
 to which it is intended to apply. 3 When the bill was long, a 
 special demurrer " to so much of the bill as seeks " certain relief, 
 without further specifying the part demurred to, has been held 
 bad. 4 A demurrer may, however, be expressed as to the whole 
 bill except to a specified part. 5 
 
 § 115. Statement of Causes of Demurrer. — By the English 
 practice a demurrer was required to contain a statement of its 
 causes, otherwise it would be overruled. 1 It is the safer practice 
 for the pleader to comply with this. It was, however, said in a 
 recent case : " The formal statement of causes of a demurrer, 
 though usual, is not necessary. The assertion of a general de- 
 murrer is that the plaintiff has not, on his own showing, made 
 out a case. If the causes of demurrer are not formally set forth 
 the plaintiff may object, and require them to be thus stated." 2 
 Demurrers are either general or special. They are general, when 
 no particular cause is assigned except the usual formulary, to 
 comply with the rules of the court, that there is no equity in the 
 bill. 3 Such a one is called a demurrer for want of equity. They 
 are special, when the particular defects or objections are pointed 
 out. The former will be sufficient, although special causes are 
 usually stated, when the bill is defective in substance. The 
 latter is indispensable when the objection is to the defects of 
 the bill in point of form. 4 But under a general demurrer a 
 defendant may take advantage of a few objections which appear 
 to be as to matters of form. Thus, under a demurrer for want 
 of equity, the objection that a necessary affidavit is wanting, or 
 that the plaintiff has not offered to do equity when that is re- 
 
 2 Story's Eq. PL § 457; Robinson v. Cary,125; Offeley v. Morgan, Gary, 153; 
 Thompson, 2 Ves. & B. 118; Devonsher Peachie v. Twyecrosse, Cary, 113; Dan- 
 t;. Newenham, 2 Sch. & Lef. 205. iell's Ch. Pr. (2d Am. ed.) 655. 
 
 3 Atwill v. Ferrett, 2 Blatchf . 39; Chi- 2 Taylor v. Holmes, 14 Fed. R. 498, 
 cago, St. Louis, & N. O. R. R. Co. v. Ma- 499 ; V er Dick, D. J. 
 
 comb, 2 Fed. R. 18. 3 Story's Eq. PI. § 455 ; Langdell's Eq. 
 
 * Atwill v. Ferrett, 2 Blatchf. 39. PI. § 95. 
 
 5 Hicks v. Raincock, 1 Cox, 40; Howe 4 Story's Eq. PI. § 455. See also 
 
 v. Duppa, 1 Ves. & B. 511 ; Daniell's Ch. Beames' Orders in Chancery, 77, 173 ; 
 
 Pr. (2d Am. ed.) 654. Mitford's PL ch. 2, § 2 ; Daniell's Ch. 
 
 § 115. » Langdell's Eq. PL § 96; San- Pr. (2d Am. ed.) 655. But see Taylor v 
 
 ders' Orders, 180, 223 ; Duffield v. Greaves, Holmes, 14 Fed. R. 498, 499.
 
 § 115.] STATEMENT OF CAUSES OF DEMURRER. 181 
 
 quired, may be raised. 5 So, may a lack of sufficient positiveness 
 in the statement of facts in the bill, 6 and a misjoinder of plaintiffs 
 by the addition of one with no interest in the subject of the bill. 7 
 But it has been held that a general demurrer for want of equity 
 will not cover an objection to the discovery only. That, it was 
 said, must be made the subject of a special demurrer. 8 A de- 
 fendant may, however, in cases where he demurs to the substance 
 of the bill, in which term is included an apparent defect of juris- 
 diction, state specially the different grounds upon which he 
 founds his objection; 9 and, indeed, some of these grounds of 
 demurrer seem to require a more particular statement. Thus, 
 a demurrer for want of parties should show who are the neces- 
 sary parties that have been omitted, not necessarily by name, 
 but in such a manner as to point out to the plaintiff the objec- 
 tions to his bill, so that he may amend by adding the proper 
 parties. 10 But it has been said that this rule does not apply 
 where it appears from the face of the bill that the plaintiff has 
 sufficient information as to the names, interests, and residences 
 of the proper parties. 11 It is said by Mr. Daniell that " in the 
 case of a demurrer for multifariousness, a mere allegation ' that 
 the bill is multifarious ' will be informal ; it should state, as the 
 ground of demurrer, that the bill unites distinct matters upon 
 one record, and show the inconvenience of so doing." 12 But 
 the case cited by him does not seem to hold that the more 
 general form is bad. 13 A defendant is not limited to show one 
 cause of demurrer only ; he may assign as many causes of 
 demurrer as he pleases, either to the whole bill or to each part 
 demurred to, and if any one of the causes of demurrer assigned 
 hold good the demurrer will be allowed. 14 When, however, two 
 or more causes of demurrer are shown to the whole bill the court 
 
 6 Daniell's Ch. Pr. (2d Am. ed.) 655. 369; Dwightu. Central Vermont R.R. Co., 
 
 6 Daniell's Ch. Pr. (2d Am. ed.) 655. 9 Fed. R. 785 ; Taylor v. Holmes, 14 Fed. 
 
 7 Hodge v. North Missouri R. R. Co., R. 498, 499. 
 
 1 Dill. 104. " Taylor v. Holmes, 14 Fed. R. 498, 
 
 8 Whittingham v. Burgoyne, 3 Anst. 499. 
 
 900 ; Daniell's Ch. Pr. (2d Am. ed ) 656. 12 Daniell's Ch. Pr. (2d Am. ed) 655. 
 
 9 See, for example, the statement of 13 Rayner v. Julian, 2 Dickens, 677 ; 
 causes for the demurrer in Pacific Rail- 8. c. more fully reported, 5 Madd. 144, 
 road of Missouri v. Missouri Pacific Ry. note. 
 
 Co.. Ill U.S. 505, 514. u Harrison v. Hogg, 2 Ves. Jr. 323; 
 
 10 Daniell's Ch. Pr. (2d Am. ed.) 333, Jones v. Frost, 3 Madd. 9; s.c. on appeal, 
 
 655 ; Tourton v. Flower, 3 P. Wms. 369 ; 1 Jacobs, 466. 
 Attorney-General v. Jackson, 11 Ves.
 
 182 DEMURRERS. [CHAP. VIII. 
 
 will treat it as one demurrer ; and if one of the causes be con- 
 sidered sufficient the order will be drawn up, as upon a complete 
 allowance of the demurrer. 15 
 
 §116. Demurrers ore tenus. — At the hearing other causes of 
 demurrer may be assigned orally ; when the defendant is said to 
 demur ore tenus} When such a demurrer only is sustained and 
 the previously assigned causes are held bad, the defendant usually 
 recovers no costs, 2 and often, is obliged to pay costs. 3 But a 
 demurrer ore tenus will, it has been said, never be allowed, 
 unless there is a demurrer on record. 4 Thus, when there was 
 a plea on record, and that was disallowed, a demurrer ore tenus 
 was also disallowed. 5 A demurrer filed to a part cannot at the 
 hearing ore tenus be extended to the whole of the bill ; and such 
 a demurrer is, it seems, only permitted for some cause which 
 covers the whole extent of the demurrer filed. 6 It is doubtful 
 whether by a demurrer ore tenus advantage can be taken of 
 defects in form. 7 
 
 § 117. Prayer of Judgment. — A demurrer, having assigned the 
 cause or causes of its interposition, then proceeds to demand 
 judgment of the court whether the defendant ought to be com- 
 pelled to put in any further or other answer to the bill, or to 
 such part thereof as is specified as the subject of demurrer ; and 
 concludes with a prayer that the defendant be dismissed, or, if 
 to a part only, that he be excused from answering that part, 
 with his reasonable costs in that behalf sustained. 1 When the 
 demurrer is to a part only of the bill, the answer or plea to what 
 remains usually follows the statement of the causes of demurrer, 
 and the submission to the judgment of the court of the plain- 
 
 J 5 Wellesley v. Wellesley, 4 Myl. & Cr. 4 Durdant v. Redman, 1 Vern. 78 ; 
 
 554 ; Darnell's Ch. Pr. (2d Am. ed.) 657. Hook v. Dorman, 1 Sim. & S. 227 ; Story's 
 
 § 116. i Taylor v. Holmes, 14 Fed. R. Eq. PI. § 464; Daniell's Ch. Pr. (2d Am. 
 
 498; Brinkerhoff v. Brown, 6 J. Ch. ed.) 668. 
 
 (N. Y.) 149; Daniell's Ch. Pr. (2d Am. 5 Story's Eq. PI. § 464; Durdant v. 
 
 ed.) 657; Langdell's Eq. PI. § 95; Story's Redman, 1 Vern. 78; Attorney-General 
 
 Eq. PI. § 464; Tourton v. Flower, 3 P. v. Brown, 1 Swanst. 288; Hook v. Dor- 
 
 Wms. 371. man, 1 Sim. & S. 227. 
 
 2 Taylor v. Holmes, 14 Fed. R. 498, 6 Equitahle Life Assurance Society v. 
 499; Wright v. Dame, 1 Met. (Mass.) Patterson, 1 Fed. R. 126; Baker v. Mel- 
 237 ; Story's Eq. PI. § 464; Daniell's Ch. lish, 11 Ves. 70, at page 76 ; Story's Eq. 
 Pr. 672. But see Rule 34. PI. § 464. But see Crouch v. Hickin, 1 
 
 3 Langdell's Eq. PI. § 95 ; Story's Eq. Keen, 385. 
 
 PI. § 464 ; Attorney-General v. Brown, "' Story's Eq. PI. § 443. 
 
 1 Swanst. 265, at page 268 ; Mortimer v. § 117. 1 Daniell's Ch. Pr. (2d Am. ed.) 
 
 Fraser, 2 Myl. & Cr. 173. 659.
 
 § 119] MOTIONS TO TAKE DEMURRERS OFF THE FILE. 183 
 
 tiffs right to call upon the defendant to make further or other 
 answer. 2 
 
 § 118. Certificate of Counsel. — Every demurrer must be accom- 
 panied by a certificate of counsel, that in his opinion it is well 
 founded in point of law, and supported by the affidavit of the 
 defendant; that it is not interposed for delay. 1 Otherwise, it 
 might perhaps be disregarded; 2 though the proper remedy for 
 this, as for any irregularity in form or in filing, would be to move 
 to take the demurrer off the file. 3 But it seems that the demurrer 
 may be overruled for such an omission. 4 Whether a certificate 
 of counsel is required when the defendant appears in person, has 
 not yet been decided in the Federal courts. 5 
 
 § 119. Motions to take Demurrers off the File. — The remedy for 
 an irregularity in the form or the manner of filing a demurrer, 
 for example, if there be an error in its title, or it be filed too late, 
 is by a motion to take it off the file. 1 When an order to that 
 effect is granted, the cause stands in the same position as if no 
 demurrer had been filed ; and the defendant is at liberty to 
 demur anew, or to plead or answer, as he may be advised. 2 The 
 order that a demurrer be taken off the file may allow the de- 
 fendant to file the same paper with the proper additions and 
 corrections. 3 The application should be for an order " to take a 
 certain paper purporting to be a demurrer" off the file. 4 A de- 
 murrer is not taken off the file by the mere entry of an order to 
 that effect. The order should be taken to the clerk, who will 
 withdraw the demurrer by annexing the order to it. 5 By setting 
 the demurrer down for argument or taking any other proceeding 
 in the cause, all defects of form except the omission of the affida- 
 vit and certificate of counsel, 6 and any irregularity in filing it, 
 would probably be waived. 
 
 2 Daniell's Ch. Pr. (2d Am. ed.) G59. 193 ; Daniell's Ch. Pr. (2d Am. ed.) 661- 
 
 § 118. l Rule 31. 0U3. 
 
 2 National Bank v. Insurance Com- 2 Cust v. Boode, 1 Sim. & S. 21 ; Dan- 
 pany, 104 U. S. 54, 76. iell's Ch. Pr. 663. 
 
 3 See § 119; Daniell's Ch. Pr. (2d Am. 3 Bailey Washing Machine Company v. 
 ed.) 661-663; Ewing v. Blight, 3 Wall. Young, 12 Blatchf. 199. 
 
 Jr. 134. 4 Daniell's Ch. Pr. (2d Am. ed.) 732. 
 
 4 See U. S. R. S. § 747 ; 1 Hoffman's 5 Cust v. Boode, 1 Sim. & S. 21 ; 
 Ch. Pr. 97. Daniell's Ch. Pr. (2d Am. ed.) 603. 
 
 5 Secor v. Singleton, 9 Fed. R. 809 ; s. c. 6 National Bank v. Insurance Com 
 3 McCrary, 230. pany, 104 U. S. 54, 76; Secor t\ Single- 
 
 § 119. i Ewing v. Blight, 3 Wall. Jr. ton, 9 Fed. R. 809. 
 134; Curzon v. De la Zouch, 1 Swanst.
 
 184 DEMURRERS. [CHAP. VIII. 
 
 § 120. Setting Demurrer down for Argument. — If the plaintiff 
 fail to set down any plea or demurrer for argument on the rule- 
 day when the same is filed, or on the next succeeding rule-day, 
 he is deemed to admit the sufficiency thereof, and his bill is 
 dismissed as of course, unless a judge of the court allows him 
 further time for the purpose. 1 The defendant filing the demur- 
 rer is the only party that can have the bill dismissed upon this 
 account. 2 The former English practice in setting a demurrer 
 down for argument was for the plaintiff to obtain an order 
 ex parte, upon petition for that purpose ; and to serve the same 
 upon the defendant's solicitor at least two days before the 
 hearing. 3 In the different circuits of the United States the 
 matter is usually regulated by local rule or custom. 4 It has 
 been held, that a demurrer to a bill seeking an injunction must 
 be decided, before a motion for an injunction noticed after the 
 filing of the demurrer can be heard, 5 and before action is taken 
 upon a plea subsequently or contemporaneously filed; 6 and 
 that while a demurrer is pending undecided, the allegations 
 of the bill must for the purposes of a motion be deemed 
 admitted. 7 
 
 § 121. Argument of Demurrer. — When a demurrer was called 
 on for hearing and the defendant failed to appear, in the English 
 practice the demurrer was struck out of the paper, unless the 
 plaintiff had set down the demurrer, and could produce an affida- 
 vit of service upon the defendant or his solicitor of the order to 
 set it down. If the plaintiff could produce such an affidavit, the 
 demurrer was not necessarily overruled; but he had to be heard 
 in support of the bill, the affidavit of service not authorizing the 
 court, in the absence of the defendant, to overrule the demurrer, 
 but to hear the plaintiff. 1 When the defendant appeared and 
 the plaintiff did not, the demurrer was also struck out of the 
 paper, unless the defendant could produce an affidavit of service 
 upon himself of the order setting down the demurrer; or unless, 
 in the event of the defendant having himself set down the de- 
 
 § 120. 1 Rule 38. e Ketchum v. Driggs, 6 McLean, 13. 
 
 2 Chicago & Alton R. R. Co. v. Union 6 Campbell v. Mayor, 33 Fed. R. 795. 
 Rolling Mill Co., 109 U. S. 702, 717. 7 Bayerque v. Cohen, M'Allister, 113. 
 
 3 Daniell's Ch. Pr. (2d Am. ed.) 665, § 121. » Penfold v. Ramsbottom, 1 
 666. Swanst. 552; Daniell's Ch. Pr. (2d Am 
 
 4 See Gordon v. St. Paul Harvester ed.) 666, 667. 
 Works, 23 Fed. R. 147.
 
 § 122.] OVERRULING A DEMURRER. 185 
 
 murrer, he could produce an affidavit of service upon the plaintiff 
 or his solicitor. On the production of such an affidavit in either 
 case, the defendant might have the demurrer allowed with 
 costs. 2 Where a demurrer had been struck out of the paper, a 
 fresh order had to be obtained for setting it down, which might 
 be had either upon petition or motion. 3 The usual course of 
 proceeding, when the demurrer came on for hearing, and all 
 parties appeared, was generally for the junior counsel for the 
 party setting the demurrer down for argument to open the plead- 
 ings, after which the counsel in support of the demurrer were 
 heard, and next the plaintiffs counsel, and then the leading coun- 
 sel for the demurring party replied. 4 The practice in these 
 respects in the courts of the United States is very loose ; it is 
 sometimes regulated by the local rule, and often by a local custom, 
 after the analogy of the State practice. 
 
 § 122. Overruling a Demurrer. — If, upon the hearing, any de- 
 murrer is overruled, the plaintiff is entitled to his costs in 
 the cause up to that period, unless the court is satisfied that the 
 defendant has good ground, in point of law or fact, to interpose 
 the same, and it was not interposed vexatiously or for delay. 1 
 And, upon the overruling of any demurrer, the defendant is as- 
 signed to answer the bill, or so much thereof as is covered by the 
 demurrer, the next succeeding rule-day, or at such other period as 
 consistently with the rights of the defendant, the same can, in the 
 judgment of the court, be reasonably done ; in default whereof, 
 the bill is to be taken against him pro confesso, and the matter 
 thereof proceeded in and decreed accordingly. 2 If, however, the 
 plaintiff does not desire an answer, terms may be imposed as a 
 condition upon the filing of an answer by the defendant. 3 When 
 a demurrer both to the whole bill and to a part thereof is sus- 
 tained only as to a part, the proper decree is to dismiss so much of 
 the bill as seeks relief in reference to the matters adjudged to be 
 bad, overrule the demurrer to the residue, and direct the defend- 
 ant to answer thereto. 4 When several defendants have joined in 
 the demurrer, it may be sustained as to one of them, and over- 
 
 2 Jennings v. Pearce, 1 Ves. Jr. 447. 2 Rule 34. 
 
 8 Tolson v. Lord Fitzwilliam, 4 Madtl. 8 Halderman v. Ilaldorman, Ilcmpst. 
 
 403. 407. 
 
 4 Daniell's Ch. Pr. (2d Am. ed.) 666, 4 Powder Co. v. Powder Works, 98 
 
 667. U. S. 126. 
 
 § 122. i Rule 34.
 
 186 DEMURRERS. [CHAP. VIII. 
 
 ruled as to the rest. 5 " The court cannot let a demurrer stand 
 for an answer, because it is a mute thing." 6 It must be either 
 sustained or overruled. If, therefore, it is doubtful whether a 
 demurrer should be sustained or not, the court will overrule it, 
 and allow the same defense to be taken by answer; 7 or, even if 
 it be not taken in the answer, will sustain it at the hearing. 8 By 
 special leave, such a defense may also be made by a plea. 9 When 
 the answer by supplying omissions in the bill establishes the 
 complainant's case, a decree for him will not be reversed upon 
 appeal, for an error in overruling a demurrer. 10 After a demurrer 
 to the whole bill has been overruled, a second demurrer to the 
 same extent cannot be allowed ; for that would be in effect to re- 
 hear the case on the first demurrer ; as, on argument of a demur- 
 rer, any cause of demurrer, though not shown in the demurrer 
 as filed, may be alleged at the bar, and if good will support the 
 demurrer. 11 A demurrer, however, of a less extensive nature 
 may by special leave of the court be subsequently put in ; 12 and 
 an amendment of a demurrer confining it to a part of the bill 
 may also be allowed. 13 
 
 § 123. Sustaining a Demurrer. — If upon the hearing any demur- 
 rer be allowed, the defendant is entitled to his costs. 1 But the 
 court may, in its discretion, upon motion of the plaintiff, allow 
 him to amend his bill upon such terms as it shall deem reason- 
 able. 2 But when a demurrer ore tenus is sustained, 3 the defend- 
 ant receives no costs, and perhaps may be ordered to pay costs. 4 
 If the defect in the bill be clearly one that goes to the whole 
 equity of the plaintiff's case, leave to amend will not be granted. 5 
 
 5 Mayor of London v. Levy, 8 Ves. 13 Glegg v. Legh, 4 Madd. 193, 207 ; 
 403, 404 ; Story's Eq. PI. § 445. Baker v. Mellish, 11 Ves. 70; Atwill v. 
 
 6 Lord Chancellor Hard vvicke in Anon., Ferrett, 2 Blatehf. 39, 49. 
 3 Atk. 530. § 123. i Rule 34. 
 
 7 Storms v. Kansas Pacific Ry. Co., 5 2 Rule 34. 
 
 Dill. 486; Bromley v. Town of Jeffer- 8 Taylor v. Holmes, 14 Fed. R. 498; 
 
 sonville, 3 McLean, 336. See Crawford Brinkerhoff v. Brown, 6 J. Ch. (N. Y.) 
 
 v. The William Penn, 3 Wash. 484. 149; Langdell's Eq.Pl. § 95; Story's Eq. 
 
 3 Johnasson v. Bonhote, L. R. 2 Ch. D. PI. § 464; Daniell's Ch. Pr. (2d Am. ed.) 
 
 298. 672. 
 
 9 Daniell's Ch. Pr. (2d Am. ed.) 675; 4 Langdell's Eq. PI. § 95; Lord Clar- 
 Rowley v. Eccles, 1 S. & S. 512. endon's Orders, May 22, 1661 ; 1 Sanders' 
 
 10 Cavender v. Cavender, 114 U. S. 464. Orders, 298. 
 
 See also West v. Randall, 2 Mason, 181. 5 Langdell's Eq. PI. § 96 ; Tyler v. 
 
 11 Daniell's Ch. Pr. (2d Am. ed.) 674. Bell, 2 Myl. & Cr. 89 ; Lowe v. Farlie, 2 
 
 1 2 Thorpe v. Macauley, 5 Madd. 218, Madd. 101 ; Walker v. Powers, 104 U. S. 
 231. 245.
 
 § 123.] SUSTAINING A DEMURRER. 187 
 
 According to Lord Cottenham, " it is not usual, upon allowing a 
 o-eneral demurrer, to give leave to amend ; but it may be done. 
 It is in the discretion of the court so to do." 6 And although 
 courts are now very liberal in allowing amendments, leave to 
 amend may be refused when the case of the defendant is a hard 
 one, and he is free from wrong-doing, while the plaintiff has had 
 an opportunity to plead the new matter when his bill was first 
 drawn. 7 Leave to amend is usually granted ; and almost invari- 
 ably when the defect in the bill consists in the misjoinder of 
 parties, 8 or the omission of those who can be served without 
 ousting the court of jurisdiction. 9 
 
 6 Wellesley v. Wellesley, 4 Myl. & Or. Tryon v. Westminster Improvement 
 
 554, 558. Comm'rs, 6 Jurist n. s. 1324. 
 
 i Dowell v. Applegate, 8 Fed. R. 698; 9 M'Elwain v. Willis, 3 Paige (N. Y.), 
 
 s. c. 7 Sawyer, 232. 505. See Walker v. Powers, 104 U. S. 
 
 8 Aylwin v. Bray, 2 Y. & J. 518, note ; 245, 252.
 
 188 PLEAS. [CHAP. IX. 
 
 
 CHAPTER IX. 
 
 PLEAS. 
 
 § 124. Definition and Classification of Pleas. — A plea is a 
 pleading which sets up some reason not apparent upon the face 
 of the bill why the defendant should not be obliged to answer 
 the whole or a part thereof. Lord Redesdale defines a plea as 
 " a special answer to a bill, differing in this from an answer in 
 the common form, as it demanded the judgment of the court, in 
 the first instance, whether the special matter urged by it did not 
 debar the plaintiff from his title to that answer which the bill 
 required." 1 A plea may be to the whole or to a part of the bill. 2 
 Usually but a single ground of defense can be presented by a 
 plea, which, though it may state more than one fact, must bring 
 the matters in issue to a single point. 3 Otherwise, it is open to 
 the charge of duplicity and multifariousness, and will be over- 
 ruled. 4 But if a bill contain different prayers for relief based 
 upon different grounds, the defendant may file a plea to each 
 part of the relief. 5 And in other cases, where great incon- 
 venience can thus be saved, the court may upon motion, after 
 notice to the complainant's solicitor, give special leave to file a 
 double plea, 6 or rather, according to Professor Langdell, 7 two 
 separate pleas, each containing a single defense. Thus, in Eng- 
 land, a defendant to a bill for an injunction against the infringe- 
 ment of a patent and for an account was allowed to file a double 
 
 § 124. 1 Roche v. Morgell, 2 Sch. & London v. Corporation of Liverpool, 3 
 
 Lef. 721, 725. Anst. 738; Watkins v. Stone, 2 Simons, 
 
 2 Rule 32. 49 ; Saltus v. Tobias, 7 J. Ch. (N. Y.) 214 ; 
 
 3 Whitbread v. Brockhurst, 1 Brown, Giant Powder Co. v. Safety Nitro Powder 
 Ch. C. 404, 416, note 9 ; s. c. 2 Ves. & Bea. Co., 19 Fed. R. 509 ; M'Closkey v. Barr, 38 
 154, note; Watkins v. Stone, 2 Simons, Fed. R. 165; Story's Eq. PI. §§ 653-655. 
 49 ; Rhode Island v. Massachusetts, 14 But see Reissner v. Anness, 12 Off. Gaz. 
 Pet. 210, 259 ; Story's Eq. PI. § 654. 842 ; s. c. 3 Bann. & A. Pat. Cas. 148. 
 
 4 Rhode Island v. Massachusetts, 14 5 Emmott v. Mitchell, 14 Simons, 432. 
 Pet. 210, 259 ; Gaines v. Mausseaux, 1 6 Gibson v. Whitehead, 4 Madd. 241 ; 
 Woods, 118 ; Whitbread v. Brockhurst, Kay v. Marshall, 1 Keen, 190. 
 
 1 Brown, Ch. C. 404, 416, note 9 ; s. c. 7 Langdell's Eq. PI. § 98. 
 
 2 Ves. & Bea. 154, note ; Corporation of
 
 § 124.] DEFINITION AND CLASSIFICATION OF PLEAS. 189 
 
 plea, "namely, first, that the invention was not useful, and 
 secondly, that it was not new." 8 It has been held that the 
 question whether a patent has been infringed cannot be raised 
 by a plea. 9 A plea must not contain inconsistent allegations, 10 
 as "a plea of the Statute of Limitations and of liability never 
 incurred." u Nor, it has been said, can a plea properly raise by 
 averment an issue not " raised by the bill." 12 But, if the plea 
 be otherwise good, immaterial allegations will not vitiate it. 13 
 Matters that have occurred since the filing of the bill may be 
 set up by plea provided the time for filing the plea has not 
 elapsed. 14 Otherwise, such matters can only be pleaded by a 
 supplemental answer or cross-bill. 15 A plea should state facts, 
 not arguments and conclusions of law, which will be disregarded. 16 
 Thus, it has been held that pleas which state that defendant " is 
 the sole owner in fee simple of the entire title of" the land which is 
 the subject of the suit ; " that, at the time of the bringing of this 
 suit and long prior thereto, this defendant was and still is in the 
 open, notorious, continuous, and exclusive possession of the said 
 premises as the sole owner thereof, and claiming and holding ad- 
 versely to the complainants and all the world ; " and " that the 
 said complainants were, at the time of bringing this suit and 
 long prior thereto, ousted and disseissed and out of possession of 
 said premises," are bad. Pleas are either pure, negative, or anom- 
 alous. A pure plea sets up new matter as a defense which is not 
 apparent upon the face of the bill. 17 A negative plea, which is 
 sometimes also termed an anomalous plea, merely denies certain 
 allegations contained in the bill. 18 An anomalous plea sets up a 
 fact in avoidance of the bill, but one which the bill has antici- 
 
 8 Kay v. Marshall, 1 Keen, 190, 192. M Earl of Leicester v. Perry, 1 Brown, 
 But see Reissner v. Anness, 12 Off. Gaz. Ch. C. 305 ; Turner v. Robinson, 1 Sim. & 
 842 ; s. c. 3 Bann. & A. Pat. Cas. 148. S. 3. 
 
 9 Korn v. Wiebusch, 33 Fed. R. 50; 15 Miller v. Fenton, 11 Paige (N. Y.), 
 Hubbell i>. De Land, 14 Fed. R. 471, 474. 18 ; Daniell's Ch. Pr. (5th Am. ed.) 607. 
 
 "» Emmott v. Mitchell, 14 Simons, 432; 16 Beames on Pleas, 22, 23 ; Jerrard v. 
 
 Story's Eq. PI. §§ 656, 657. Saunders, 2 Ves. Jr. 187 ; National Bank 
 
 11 Emmott v. Mitchell, 14 Simons, 432, v. Insurance Co., 104 U. S. 54 ; Wood v. 
 436. Mann, 1 Sumner, 500 ; McCloskey v. 
 
 12 Emmott v. Mitchell, 14 Simons, 432, Barr, 38 Fed. R. 165 ; Emma Silver Min- 
 436. But see Rhode Island v. Massachu- ing Co. v. Emma Silver Mining Co. of 
 setts, 14 Pet 210, 270. New York, 1 Fed. R. 39. 
 
 " Rhode Island v. Massachusetts. 14 17 M'Closkey v. Barr, 38 Fed. R. 165. 
 Pet. 210, 270 ; Claridge v. Iioare, 14 Ves. 18 Story's Eq. PI. § 651. 
 59.
 
 190 PLEAS. [CHAP. IX. 
 
 pated and without confessing replied to. 19 Xow that the benefits 
 of discovery can be obtained at common law, negative and 
 anomalous pleas are rarely used ; and the learning and subtlety 
 which have been displayed in discussing their characteristics are 
 of little service, except as a means of mental discipline or for the 
 gratification of an antiquarian taste. Those interested in study- 
 ing their history and refinements are referred to the works of 
 Beames on Pleas, Wigram on Discovery, and Langdell on Equity 
 Pleading, where they will find the subject discussed at length, 
 with full references to the cases. Pleas are either to the relief 
 or to the discovery ; and pleas to the relief are either pleas in 
 abatement or pleas in bar. 
 
 § 125. Pleas in Abatement in General. — The books which 
 recognize pleas in abatement include among them pleas to the 
 jurisdiction, pleas to the person, and pleas to the bill. 1 Matters 
 in abatement can, in general, only be set up by plea or demurrer ; 
 and a defendant, by answering or pleading in bar, waives any 
 such objection. 2 But the act of March 3, 1875, provides " that 
 if in any suit commenced in a circuit court, or removed from a 
 State court to a circuit court of the United States, it shall ap- 
 pear to the satisfaction of said circuit court, at any time after 
 such suit has been brought or removed thereto, that such suit 
 does not really and substantially involve a dispute or controversy 
 properly within the jurisdiction of said circuit court, or that the 
 parties to said suit have been improperly or collusively made or 
 joined, either as plaintiffs or defendants, for the purpose of cre- 
 ating a case cognizable or removable under this act, the said 
 circuit court shall proceed no further therein, but shall dismiss 
 the suit or remand it to the court from which it was removed as 
 justice may require, and shall make such order as to costs as 
 shall be just." 3 The objection that there is no jurisdiction in 
 
 1 9 Langdell's Eq. PL § 102 ; Story's Rubber Co. v. Goodyear, 9 Wall. 788, 
 
 Eq. PL § 651 ; M'Donald v. Salem Capital 792 ; Wood v. Mann, 1 Sumner, 506 ; 
 
 Flour Mills Co., 31 Fed. R. 577; M'Closkey Dodge v. Perkins, 4 Mason, 435; Kit- 
 
 v. Barr, 38 Fed. R. 165. But see Milligan tredge v. Claremont Bank, 3 Story, 590 ; 
 
 v. Milledge, 3 Cranch, 220. Doggett v. Emerson, 1 Woodb. & M. 196 ; 
 
 § 125. i See Beames on Pleas, ch. 2 ; Blackburn v. Selma, M. & M. R. R. Co., 2 
 
 Story's Eq. PL §§ 705-708 ; Rule 39 ; Flippin, 525. 
 
 Memphis City v. Dean, 8 Wall. 64. 3 Act of March 3, 1875, § 5; U. S. R. 
 
 2 Beames on Pleas (1st Am. ed.) 63- S. 1 Supp. 175; 18 St. at L. 470; re- 
 
 64; Story's Eq. PL § 708; Rule 39; enacted in Act of March 3, 1887, 24 St. 
 
 Livingston v. Story, 11 Pet. 351, 393; at L. ch. 373. 
 Wickliffe v. Owings, 17 How. 47, 52;
 
 § 127.] PLEAS TO THE PERSON. 191 
 
 equity because the complainant has an adequate remedy at law- 
 may be taken by demurrer, plea, or answer. 4 Otherwise, the 
 defendant waives the right to make it, 5 although the court may 
 for its own protection dismiss a bill for this reason at the final 
 hearing when the pleadings are silent upon the subject. 6 The 
 reference of the matter in dispute to an arbitrator, under an 
 agreement that his award shall be made the basis of a decree, is 
 a waiver of such an objection. 7 
 
 § 126. Pleas to the Jurisdiction. — Pleas to the jurisdiction are : 
 (1) That the subject of the suit is not within the jurisdiction of 
 a court of equity ; 1 (2) that some other court of equit} r has the 
 proper jurisdiction; 2 (3) that the defendant has not been 
 properly served with process. 3 
 
 § 127. Pleas to the Person. — Pleas to the person are : (1) 
 That the plaintiff has not the legal capacity to sue either at all 
 if an alien enemy, 1 or alone if an infant, 2 or without leave from 
 the court as a receiver. 3 (2) That the plaintiff is not the person 
 whom he pretends to be, or does not sustain the character which 
 he assumes; as, for example, that he is not executor, 4 or not as- 
 signee, 5 or not a corporation, 6 when suing as such ; or that the 
 suit is brought in the name of a fictitious person; 7 or that it is 
 brought in the name of a person who sues for the benefit of 
 another, through collusion or champerty ; 8 or, it seems, in a stock- 
 holder's suit founded upon a right which may properly be as- 
 serted by the corporation, that the corporation has not refused to 
 sue. 9 It has been held that the objection that the plaintiff is a 
 lunatic and cannot sue without a next friend cannot be taken by 
 
 * Reynesi-.D umont,130 United States, 2 Story's Eq. PL § 725. But see 
 
 354, 395 ; Wylie v. Coxe, 15 Howard, 415 ; Dudgeon v. Watson, 23 Fed. R. 161. 
 Kilbourn v. Sunderland, 130 U. S. 505. 3 See Newman v. Moody, 19 Fed. R. 
 
 6 Keynes v. Dumont, 130 U. S. 354 ; 858. 
 Wylie v. Coxe, 15 How. 415. * See Rubber Co. v. Goodyear, Wall. 
 
 6 Parker v Winnipiseogee Lake C. & 788, 792; Ord '•. Kuddleston, 2 Dickens, 
 W. Co., 2 Black, 545, 550; Lewis v. 510; Story's Eq. PI. § 727. 
 
 Cocks, 23 Wall. 40G ; Oelrichs v. Spain, 5 Nicholas v. Murray, 5 Saw. 320. 
 
 15 Wall. 211. 6 Dental Vulcanite Co. v. Wetherbee, 
 
 7 Strong v. Willey, 104 U. S. 512. 2 Cliff. 555; Blactiburn v. Selma, M. & 
 § 120. i Story's Eq. PI. §§ 710-713. M. R. R. Co., 2 Li.ppin, 525. 
 
 2 Story's Eq. PI. §§ 714-716. 7 Chapman v. School District No. 1, 
 
 8 Larned v. Griffin, 12 Fed. R. 590; Drady, 108, 116. 
 
 Williams v. Empire Transportation Co., 8 Dinsmore v. Central R. R. Co., 19 
 
 1 X. J. L. J. 315. Fed. R. 153. But sec Sperry v. Erie 
 
 § 127. i Albrech v. Sussman, 2 V. & B. Ry. Co., 6 Blatchf. 425. 
 
 323; Story's Eq. PI. §724; Mumford v. ° Newby c. Oregon Central Ry. Co, 
 
 Mumford, 1 Gall. 36G. 1 Saw. G3, 67.
 
 192 PLEAS. [CHAP. IX. 
 
 plea, and that the proper course for the defendant is to move 
 either to strike the bill off the file on account of the complain- 
 ant's mental incapacity, or for a stay of proceedings until a 
 committee or next friend is appointed. 10 (3) That the defendant 
 cannot be sued except upon the happening of some event which 
 has not occurred, as that he is a receiver, and no leave to sue 
 him has been obtained from the court by which he was ap- 
 pointed. 11 (4) That the defendant is not the person he is 
 alleged to be, or does not sustain the character which he is 
 alleged to bear ; 12 or that the person named as a defendant is 
 not a corporation when sued as such, — in which case the person 
 served with process on its behalf may file the plea in his own 
 name, 13 or was not incorporated under the laws of the State 
 which is named in the bill as its creator ; 14 or that the defendant 
 has become a bankrupt or insolvent, and his interest in the sub- 
 ject-matter has passed to his assignee. 15 
 
 § 128. Pleas to the Bill. — Pleas to the bill are : (1) That 
 there is another suit depending in a domestic court of equity 
 for the same matter. (2) That there is a want of proper parties. 
 
 (3) That the bill will cause an improper multiplicity of suits. 
 
 (4) Multifariousness. 1 Of these the first two are the only ones 
 of much practical importance. It is doubtful whether either of 
 the last two has ever been successfully maintained. 2 Judge Story 
 thus speaks of them : " Thirdly, the plea of multiplicity of suits. 
 This objection also may be taken by way of plea, for it is against 
 the whole policy of courts of equity to encourage multiplicity 
 of suits. Indeed, this constitutes one main ground of the ob- 
 jection of the want of sufficient parties, since its tendency is to 
 multiply litigation. Fourthly, the plea of multifariousness, or of 
 joining and confounding distinct matters in one bill. Generally 
 this objection is apparent on the face of the bill, and then it 
 could be taken by way of demurrer. But, in case the bill is so 
 
 i° Dudgeon v. Watson, 23 Fed. R. 161. 14 Blackburn v. Selma, M. & M. R. R. 
 
 11 Barton v. Barbour, 104 U. S. 126; Co., 2 Flippin, 525. 
 
 Jerome v. MeCarter, 94 U. S. 734, 737 ; 15 Kittredge v. Claremont Bank, 3 
 
 In re Young, 7 Fed. R. 855. But see 24 Story, 590 ; Story's Eq. PI. § 732. See 
 
 St. at L. ch. 373, § 3. also Doggett v. Emerson, 1 Woodb. & M. 
 
 i 2 Story's Eq. PI. §§ 732-734. 196. 
 
 w Kelley v. Mississippi Central R. R. § 128. • Story's Eq. PI. §§ 735-748. 
 
 Co., 1 Fed. R. 564; s. c. 2 Flippin, 581. 2 Benson v. Hadfield, 4 Hare, 32, 39; 
 
 See also Williams v. Empire Transporta- M'Closkey v. Barr, 38 Fed. R. 165. 
 tion Co., 1 N. J. L. J. 315.
 
 § 129.] PLEAS OF PENDENCY OF ANOTHER SUIT. 193 
 
 artfully framed that from that or from some other cause the 
 objection does not appear on the face of the bill, the defendant 
 may take advantage thereof by setting forth the special matter 
 by a plea." 3 The following plea was held bad and overruled : 
 where the bill was filed to restrain the infringement of five 
 patents, and stated that the defendant made and sold for use 
 " soda-water fountains, each made according to, and employing 
 and containing, the inventions described and claimed in each 
 of the above-named letters-patent and reissued letters-patent." 
 The plea set up as a defense that all of the letters-patent de- 
 scribed in the bill were, as the bill showed, for separate and 
 distinct inventions, "which several alleged inventions are not, 
 in point of fact, connected together in use or operation, and are 
 not, in point of fact, conjointly embodied in any of the soda- 
 water and other fountains manufactured, used, or sold, by this 
 defendant ; so that the said plaintiff, by his single bill of com- 
 plaint aforesaid, seeks to compel this defendant to unite five 
 separate and distinct defences depending upon distinct and dif- 
 ferent proofs, so as to complicate the defence and embarrass this 
 defendant in his answer to the said complaint ; and that it is not 
 true, as alleged in said bill, that the said defendant has made, 
 constructed, used, and vended to others to be used, soda-water 
 and other fountains, each made according to, and employing and 
 containing the inventions described and claimed in each of the 
 above-named letters-patent and reissued letters-patent." 4 
 
 § 129. Pleas of Pendency of another Suit. — A plea that another 
 suit in equity is pending for the same cause in the same court is, 
 if true, a sufficient defense to a bill. 1 The pendency of an action 
 at law for the same matter is not, however, in itself a defense. 2 
 For the very fact that relief cannot be had at law is the usual 
 ground for resorting to equity. If, however, there appears to be 
 no sufficient reason for the maintenance of both, the court at 
 equity may, after the defendant has answered, put the plaintiff 
 to his election, whether he will proceed at law or in equity ; and 
 
 3 Story's Eq. PI. §§ 746, 749. See also Ch. Ca. 241 ; Tarleton v. Barnes, 2 Keen, 
 
 Benson v. Hadfield, 4 Hare, 32. 632, 635 ; Insurance Co. v. Brune, 96 
 
 * Matthews v. Lalance & G. Manuf. U. S. 588, 592, 593. See also Memphis 
 
 Co., 2 Fed. R. 232. City v. Dean, 8 Wall. 64. 
 
 §129 > Mitford's PI. ch. 2, § 2, 2 Graham v. Meyer, 4 Blatchf. 129; 
 
 part 2 ; Story's Eq. PI. § 736 ; Urlin v. Thorne v. Towanda Tanning Co., 15 Fed. 
 
 Hudson, 1 Vern. 332 ; Foster v. Vassall, R. 289, 292. 
 3 Atk 587, 590; Crofts v. Wortley, 1 
 
 13
 
 194 PLEAS. [CHAP. IX. 
 
 if he elects the latter, then his proceeding at law will be en- 
 joined ; if the former, his bill will be dismissed. 3 The pendency 
 of another suit in a court of another of the United States, or of a 
 foreign country, is not a bar to a suit for the same relief in a Cir- 
 cuit Court of the United States. 4 Nor, it seems, although there 
 the authorities are conflicting, 5 is the pendency of a similar suit 
 in a court held within the same State where the Federal court is 
 held. 6 The effect of the pendency of another suit for the same 
 cause in another court of the United States has never been ex- 
 pressly decided ; 7 but there seems to be no difference in prin- 
 ciple between such a suit and one in a court of another State, 
 except that proceedings in such a case in a Federal court could 
 be enjoined by a Federal judge. 8 A plea that another suit is 
 pending, in which the complainant might obtain by cross-bill the 
 relief now sought by him, is bad. 9 A plea of lis pendens should 
 set forth the commencement of the former suit, its general nature, 
 character, and objects, the relief prayed, and how far it has pro- 
 gressed ; 10 it should then aver specifically that the second suit is 
 for the same subject-matter 11 as the first, and seeks the same, or 
 similar, relief; 12 and further, that the former suit is still depend- 
 ing. 13 It must show that the defendant was served or has ap- 
 peared in the former suit. 14 " For it is no suit depending till the 
 
 3 Story's Eq. PI. § 742 ; Beames' 8 See Massachusetts Mutual Life Ins. 
 
 Orders in Chancery, 11, 12 ; Mitford's Co v. Chicago & A. R. Co., 13 Fed. R. 857; 
 
 Pleadings, ch. 2, § 2, part 2 ; Royle v. Beauchamp v. Marquis of Huntley, Ja- 
 
 Wynne, 1 Craig & Ph. 252 ; Thorne v. cobs, 546 ; Erie Ry. Co. v. Ramsey, 45 
 
 To'wanda Tanning Co., 15 Fed. R. 289, N. Y. 637. 
 
 292. 9 Washburn & Moen Manuf. Co. v. 
 
 * Insurance Co. v. Brune, 96 U. S. Scutt, 22 Fed. R. 710. 
 
 588, 592, 593; Stanton v. Embrey, 93 10 Crescent City Live Stock Co. v. 
 
 U. S. 548 ; Lord Dillon v. Alvares, 4 Ves. Butchers' Union Live Stock Co., 12 Fed. 
 
 357. See Story' Eq. PI. § 747. R. 225 ; Foster v. Vassall, 3 Atk. 589, 
 
 5 See Radford v. Folsom, 14 Fed. R. 590 ; Story's Eq. PI. § 737. 
 
 97 ; Brooks v. Mills County, 4 Dill. 524. u Devie v. Lord Brownlow, 2 Dickens, 
 
 6 Latham v. Chafee, 7 Fed. R. 520 ; 611 ; Mitford's Pleadings, ch. 2, § 2, part 
 "White v. Whitman, 1 Curt. 494 ; Sharon 2 ; Story's Eq. PI. § 737. 
 
 v. Hill, 22 Fed. R. 28 ; Washburn & Moen 12 Behrens v. Sieveking, 2 Myl. & Cr. 
 
 Manuf. Co. v. Scutt, 22 Fed. R. 710 ; Lor- 602 ; Wheeler v. McCormick, 8 Blatchf. 
 
 ing ». Marsh, 2 Cliff. 322 ; Gordon v. 267 ; Jenkins v. Eldredge, 3 Story, 183 ; 
 
 Gilfoil, 99 U. S. 168, 178 ; Dwight v. Cen- Story's Eq. PI. § 737. 
 
 tral Vermont R. R. Co., 9 Fed. R. 785 ; w Story's Eq. PL § 737. See Urlin v. 
 
 Crescent City Live Stock Co. v. Butchers' Hudson, 1 Vern. 332 ; Mitford's Plead- 
 
 Union Live Stock Co., 12 Fed. R. 225. ings, ch. 2, § 2, part 2. 
 
 7 See Wheeler v. McCormick, 8 14 Moor v. Welsh Copper Co., 1 Eq. 
 Blatchf. 267 ; Steiger v. Heidelberger, 4 Cas. Abr. 39, pi. 14. 
 
 Fed. R. 455; s. c. 18 Blatchf. 426; 
 Brooks v. Mills County, 4 Dill. 524, 527.
 
 § 129.] PLEAS OF PENDENCY OF ANOTHER SUIT. 195 
 
 parties have appeared or been served to appear, but only a piece 
 of parchment thrown into the office, which may lie there forever, 
 and never come to a suit." 15 " It is not necessary to the suffi- 
 ciency of the plea that the former suit should be precisely between 
 the same parties as the latter. For if a man institutes a suit, 
 and afterwards sells part of the property in question to another, 
 who files an original bill touching the part so purchased by him, 
 a plea of the former suit depending touching the whole property 
 will hold. 16 So where one part-owner of a ship filed a bill against 
 the husband for an account, and afterwards the same part-owner 
 and the rest of the owners filed a bill for the same purpose, the 
 pendency of the first suit was held a good plea to the last ; n for 
 though the first bill was insufficient for want of parties, yet by 
 the second bill the defendant was doubly vexed for the same 
 cause. The course which the court has taken in such case has 
 been to dismiss the first bill, and to direct the defendant in the 
 second cause to answer upon being paid the costs of the plea 
 allowed." 18 Where a former suit had been brought for a part, 
 but not the whole of the relief sought in the case at bar, the 
 court held its pendency no defence, but said that proceedings in 
 it might be stayed until the determination of the second suit. 19 
 " Where a second bill is brought by the same person for the same 
 purpose, but in a different right, as where the executor of an 
 administrator brought a bill conceiving himself to be the personal 
 representative of the intestate, and afterwards procured adminis- 
 tration de bonis non, and brought another bill, the pendency of 
 the former bill is not a good plea. 20 The reason of this determi- 
 nation seems to have been, that, the first bill being wholly irregu- 
 lar, the plaintiff could have no benefit from it, and it might have 
 been dismissed upon demurrer. Where a decree is made upon a 
 bill brought by a creditor on behalf of himself and all other cred- 
 itors of the same person, and another creditor comes in before 
 the master to take the benefit of the decree, and proves his debt, 
 and then files a bill on behalf of himself and the other creditors, 
 
 ]5 Moor v. Welsh Copper Co., 1 Eq. 2, citing Crofts v. Wortley, 1 Ch. Cas. 
 
 Cas. Abr. 39. 241. 
 
 10 Moor v. Welsh Copper Co., 1 Eq. 19 Massachusetts Mutual Life Ins. Co. 
 
 Cas. Abr. 39. v. Chicago & A. R. Co., 13 Fed. R. 857. 
 
 17 Durand v. Hutchinson, Mich. 1771, 20 Iluggins v. York Building Co., 2 
 
 in Chan. Atk. 44. 
 
 i3 Mitford's Pleadings, ch. 2, § 2, part
 
 196 PLEAS. [CHAP. IX. 
 
 the defendants may plead the pendency of the former suit ; for a 
 man coming in under a decree is quasi a party." 21 When, after 
 a bill had been filed to restrain the infringement of a patent and to 
 obtain an account of profits, the defendant continues his infringe- 
 ments, the pendency of the first is no objection to a second bill 
 seeking an injunction, and an account founded upon the subse- 
 quent infringements. 22 According to Lord Redesdale, " as the 
 pendency of the former suit, unless admitted by the plaintiff, is 
 made the immediate subject of inquiry by one of the masters, a 
 plea of this kind is not put in upon oath." 23 
 
 § 130. Plea of Want of Parties. — The plea of want of parties 
 is sometimes included among pleas in bar. 1 The same defense 
 may be made by answer ; 2 and in a recent case the court refused 
 to allow it to be set up by plea upon the ground that the same 
 defense can be considered with more convenience and expedition 
 when pleaded in an answer. 3 Such a plea must state the names, 
 if known, of all the persons for whose omission the defendant 
 claims that the bill is defective. 4 It should also state that they 
 are living, and, unless they are in every aspect of the bill indis- 
 pensable parties to it, that they are within the jurisdiction of the 
 court. 5 After a plea for want of parties has been sustained, and 
 the bill amended by adding thereto the parties named in the plea, 
 a second plea further objecting to the bill for the omission of 
 other parties not named in the first plea cannot be filed. 6 A 
 plea to the whole bill for want of parties will be overruled if, 
 in any aspect of the bill, the parties therein named would not be 
 necessary. 7 
 
 § 131. Piea3 of statute. — Pleas in bar set up some reason 
 founded on the substance of the case, why the plaintiff is not 
 entitled to relief. They rest upon some matter created either by 
 
 21 Mitford's PI. ch. 2, § 2, part 2, citing See, however, Story's Eq. PI. § 744, and 
 upon last point Neve v. Weston, 3 Atk. citations. 
 
 0-57. 2 Rule 52 ; United States v. Gillespie, 
 
 22 Wheeler v. McCormick, 8 Blatchf. 6 Fed. R. 803. 
 
 267 ; Roemer v. Newwan, 19 Fed. R. 98 ; 3 United States v. Gillespie, 6 Fed. R. 
 
 Iligby v. Columbia Rubber Co., 18 Fed. 803. See Rule 52. 
 
 R. 601. Contra, Gold & Stock Telegraph * Attorney-General v. Jackson, 11 Ves. 
 
 Co. v. Pearce, 19 Fed. R. 419. 367, 369 ; Cook v. Mancius, 3 Johns. Ch. 
 
 23 Mitford's Pleadings, ch. 2, § 2, part (N. Y.) 427 ; Dwight v. Central Vermont 
 2 ; citing Urlin v. Hudson, 1 Vern. 332. R. R. Co. 9 Fed. R. 785. 
 
 But see the positive language of Rule 5 Goodyear v. Toby, 6 Blatchf. 130. 
 31. 6 Rawlins v. Dalton, 3 Y. & Coll. 447. 
 
 § 130. 1 Mitford's PI. ch. 2, § 2, part 2. 7 Homan v. Shiel, 2 Jones (Irish), 164-
 
 § 131.] PLEAS OF STATUTE. 197 
 
 statute, matter of record, or matter in pais, which last term sig- 
 nifies a matter of fact which is not of record, and is not given by 
 statute special effect. Pleas founded upon matter that is made 
 a bar by statute rest upon the statute of limitations, the statute 
 of frauds, or less frequently some other statute. Federal courts 
 of equity are not bound by State statutes of limitation, 1 except 
 in cases where their jurisdiction is concurrent with the jurisdic- 
 tion at common law ; 2 but they will usually follow them, 3 unless 
 injustice would otherwise be done, 4 thus enforcing the doctrine 
 of equitable laches ; and they will do so especially when suits 
 are brought against executors, 5 or to foreclose mortgages. 6 More- 
 over, the lapse of time for a shorter period than the statute of 
 limitations, and in cases to which that statute does not apply, 
 will often be held such laches as to bar the complainant. 7 It is 
 not laches for a complainant to delay asserting his rights until 
 the determination in another suit, brought by himself or another 
 in a similar position, of a doubtful question of law materially 
 affecting their validity. 8 The United States are not bound by 
 laches ; 9 and the State statutes of limitations do not affect them, 10 
 even, it has been said, if specially named therein. 11 The plea of 
 the statute of limitations is in substantially the same form as a 
 similar plea in an action at law, but no special form is essential. 12 
 If the bill charge fraud or other matters, which, if true, would 
 prevent the statute from depriving the complainant of relief, the 
 plea must deny them. 13 It is not sufficient to deny them in an 
 answer in support of the plea. 14 The statute of frauds will be 
 
 §131. * Johnston v. Roe, 1 Fed. R. 692 ; 84; Rumford Chemical Works v. Vice, 
 
 Etting v. Marx's Executor, 4 Fed. R. 673. 14 Blatchf. 179, 180 ; Green ». Barney, 
 
 But see Pratt v. Northam, 5 Mason, 95. 19 Fed. R. 420; People v. Cooper, 22 
 
 2 Wagner v. Baird, 7 How. 234, 258 ; Hun (29 N. Y. S. C. R.) 515, 517. 
 
 Godden v. Kimmell, 99 U. S. 201 ; Wilson 9 United States v. Beebe, 127 U. S. 338 ; 
 
 v. Koontz, 7 Cranch, 202. United States v. Insley, 130 U. S. 203. 
 
 8 Godden v. Kimmell, 99 U. S. 201 ; 10 Gibson v. Chouteau, 13 Wall. 92 ; 
 
 Meath v. Phillips County, 108 U. S. United States v. Thompson, 98 U. S. 
 
 553. 486. 
 
 4 Fogg v. St. Louis H. & K. R. R. Co., n United States v. Thompson, 98 U. S. 
 17 Fed. R. 871, 873. 486, 490. 
 
 5 Pulliam v. Pulliam, 10 Fed. R. 53 ; 12 Harpending v. Reformed Protestant 
 Broderick's Will, 21 Wall. 503. Dutch Church, 16 Pet. 455 ; West Port- 
 
 6 Cleveland Ins. Co. v. Reed, 1 Biss. land Homestead Association v. Lowns- 
 180. dale, 17 Fed. R. 205; Story's Eq. PI. 
 
 7 Brown v. County of Buena Vista, § 752. 
 
 95 U. S. 157, 161. w Steams v. Page, 1 Story, 204. 
 
 8 Buxton w.James, 5 De Gex & Sm. SO, H Stearns v. Page, 1 Story, 204.
 
 198 PLEAS. [CHAP. IX. 
 
 followed by the Federal courts. 15 If the bill shows that the 
 complainant's case is repugnant to the statute of frauds, it is 
 demurrable. 16 This, however, is rarely the case, and the statute 
 is usually referred to by plea or answer. 17 The rule has been 
 thus stated by Lord Chancellor Cran worth: "It was argued that 
 the statute of frauds was not open to the defendant, by reason 
 of his not having insisted upon the statute as a defence ; but this 
 is a mistake. Where a defendant admits the agreement, if he 
 intends to rely on the fact of its not being in writing and signed, 
 and so being invalid by reason of the statute, he must say so ; 
 otherwise he is taken to mean that the admitted agreement was 
 a written agreement good under the statute, or else that on some 
 other ground it is binding on him ; but where he denies or does 
 not admit the agreement, the burden of proof is altogether upon 
 the plaintiff, who must then prove a valid agreement capable of 
 being enforced." 18 The facts which show that the statute applies 
 must be stated specifically. 19 Otherwise the plea is bad. 20 An 
 act of Congress ratifying the construction of an otherwise illegal 
 structure will, if constitutional, abate a suit for an injunction 
 against the further maintenance of the structure, although not 
 set up by plea, answer, or demurrer. 21 
 
 § 132. Pleas of Matter of Record. — A plea founded upon matter 
 of record sets up the judgment or decree of a court of record 
 upon the same matter and between the same parties, or those in 
 privity with them, in a cause of which it had jurisdiction. Pleas 
 of matter of record are in some of the books distinguished from 
 pleas of matter as of record. This distinction was due to the 
 fact that, in England, the Court of Chancery in its equitable 
 jurisdiction, the Court of Admiralty and ecclesiastical courts 
 were deemed courts not of record, although their decrees had 
 the same effect as the judgments of courts of record. 1 Judge 
 Curtis held at circuit, that a judgment in a court of a foreign 
 
 is Randall v. Howard, 2 Black, 585, M'Closkey v. Barr, 38 Fed. R. 165, 
 
 589. 169. 
 
 16 Randall v. Howard, 2 Black, 585, 20 Bailey v. Wright, 2 Bond, 181 ; 
 
 589. M'Closkey v. Barr, 38 Fed. R. 165, 169. 
 
 " For an illustration of the plea, see 21 The Clinton Bridge, 10 Wall. 454. 
 
 Jackson v. Oglander, 2 H. & M. 465. But see Griffing v. Gibb, 2 Black, 519; 
 
 18 Ridgway v. Wharton, 3 De G. M. & Liverpool, New York, & Philadelphia 
 
 G. 677, 689. But see Heys v. Astley, 9 S. S. Co. v. Commissioners of Emigra- 
 
 Law Times n. s. 356. tion, 113 U. S. 33, 38. 
 
 is Bailey v. Wright, 2 Bond, 181 ; § 132. 1 Story's Eq. PI. § 778.
 
 § 133.] PLEAS OF MATTER IN PAIS. 199 
 
 country cannot be pleaded in bar ; 2 but in the present state of 
 the law, the soundness of his decision may be doubted. 3 A de- 
 cree of a court of equity will not be a bar if it resulted in the 
 dismissal of a bill without prejudice; 4 or for want of prosecu- 
 tion ; 5 or, for a slip in practice ; 6 or, by the former English 
 practice, if it had not been signed and enrolled, although it could 
 then be insisted on by answer as a good defense. 7 No judgment 
 or decree rendered after a proceeding not in rem, in which the 
 defendant therein was not served with process ; 8 or in which the 
 unsuccessful party was denied a hearing, 9 or some such other 
 gross injustice was perpetrated as rendered the so-called judicial 
 proceeding not due process of law, is of any effect. Judgments 
 or decrees obtained by fraud are not conclusive when properly 
 impeached. 10 It seems that a decree upon a bill taken as con- 
 fessed concludes the defendant in another suit. 11 In pleading 
 a judgment or decree, it is not necessary to set it forth, or the 
 proceedings upon which it was founded, at length ; 12 but so much 
 of the decree and pleadings should be set forth as will show that 
 the same point was then in issue, 13 and the court may require 
 the decree to be pleaded at length ; 14 or if the plea sets up 
 matter of record in the same court, to show the record before the 
 plaintiff is required to take action upon the plea. 15 
 
 § 133. Pleas of Matter in Pais. — Pleas founded upon matter 
 in pais state some other reason, for example, a release, or au 
 
 2 Lyman v. Brown, 2 Curt. 559. See 8 Pennoyer v. Neff, 95 U. S. 714 ; Life 
 
 Burnham v. Webster, 1W.&M. 172. Insurance Co. v. Bangs, 103 U. S. 780; 
 
 8 See Martin v. Nicolls, 3 Simons, 458 ; St. Clair v. Cox, 106 U. S. 350. 
 
 Story's Conflict of Laws, §§ GOG-608, and 9 Bischoff v. Wethered, 9 Wall. 812 ; 
 
 notes. Windsor v. McVeigh, 93 U. S. 274; 
 
 4 Durant v. Essex Company, 7 Wal- Bradstreet v. Neptune Ins. Co., 3 Sumner, 
 lace, 107 ; House v. Mullen, 22 Wallace, 601. 
 
 42, 46. 10 Pacific Railroad of Missouri v. Mis- 
 
 5 American Diamond Bock Boring Co. suri Pacific Ry. Co., Ill U. S. 505. 
 
 v. Sheldon, 17 Blatchf. 208 ; 8. c. 4 Bann. « Thomson v. Wooster, 114 U. S. 104, 
 
 & A. 551 ; Keller v. Stolzenbach, 20 Fed. Ill, 112 ; Ogilvie v. Heme, 13 Ves. 563. 
 
 It. 47 ; Conn v. Penn, 5 Wheat. 424, 427 ; 12 Ricardo v. Garcias, 12 CI. & F. 368 ; 
 
 Badger v. Badger, 1 Cliff. 241. Story's Eq. PL § 783. 
 
 6 Durant v. Essex Company, 7 Wall. 13 Garcias v. Ricardo, 14 Simons, 265 ; 
 107, 109 ; House v. Mullen, 22 Wall. 42, Story's Eq. PL § 791 ; Emma Silver Min- 
 46 ; Walden v. Bodley, 14 Pet. 158 ; Gist ing Co. v. Emma Silver Mining Company 
 v. Davis, 2 Hill Ch. (S. C.) 335; Grubb of New York, 1 Fed. R. 39. 
 
 v. Clayton, 2 Hayw. (N. C ) 378. See, 14 Emma Silver Mining Co. v. Emma 
 however, Starr v. Stark, 1 Saw. 270. . Silver Mining Company of New York, 1 
 
 7 Anon., 3 Atk. 809 ; Story's Eq. PL Fed. R. 39. 
 § 790. is Ibid.
 
 200 PLEAS. [CHAP. IX. 
 
 account stated, or a purchase without notice for a valuable con- 
 sideration, why the plaintiff should not have relief. 1 A plea of 
 purchase without notice for a valuable consideration should deny 
 notice positively, 2 and should state the amount of the consider- 
 ation. 3 It is insufficient to plead that the defendant paid a 
 "good and valuable consideration, to wit, a certain sum of 
 money." 4 A plea to a bill for an injunction to restrain the 
 infringement of a reissued patent, which set up that the claim 
 had been unlawfully expanded so as to embrace subsequent 
 improvements covered by later patents, was held good. 5 A 
 plea to a bill filed under § 4918 of the Revised Statutes against 
 the owner of a patent interfering with that of the complainant, 
 which set up that the invention described in the complainant's 
 patent was described in a previous English patent published in 
 the United States, and filed in the Patent Office here before the 
 issue of the complainant's patent, was held bad and overruled. 6 
 
 § 134. Pleas to the Discovery. — Pleas to the discovery set up 
 new matter, showing (1) that the plaintiff's case is not such 
 as entitles a court of equity to assume jurisdiction to compel 
 a discovery in his favor ; (2) that the plaintiff has no such 
 interest in the subject-matter of the action as entitles him to 
 call upon the defendant for a discovery ; (3) that the defendant 
 has no such interest in the subject-matter of the action as will 
 entitle the plaintiff to call upon him for a discovery ; (4) that 
 the situation of the defendant renders it improper for a court of 
 equity to compel him to make a discovery. 1 Of them, Professor 
 Langdell says: " But it should be added that, while demurrers 
 to discovery are common, there are few instances of pleas of that 
 kind ; and the cases are few in which it would be advisable to 
 resort to such a plea, since the question can be raised equally 
 well by answer, and then the defendant's own statement of the 
 facts will be equally conclusive." 2 
 
 § 135. "When a Plea must be filed. — Unless the defendant's 
 time has been enlarged, for cause shown, by a judge of the 
 court, upon motion for that purpose, the plea should be filed 
 
 § 133. i Story's Eq. PI. §§ 795-815. 6 Hubbell v. De Land, 14 Fed. R. 471. 
 
 2 Wood v. Mann, 1 Sumner, 506. G Pentlarge v. Pentlarge, 19 Fed. R. 
 
 8 Secombe v. Campbell, 18 Blatclif. 817 ; s. c. 22 Fed. R. 412. But see Fos- 
 
 108. ter v. Lindsay, 3 Dill. 126, 131. 
 
 * Secombe v. Campbell, 18 Blatcbf. §134. » Mitford's PI. ch. 2, §2, part 2. 
 
 108. 2 Langdell's PI. Eq. § 148.
 
 § 136.] FRAME OF A PLEA. 201 
 
 on the rule-day next succeeding that of entering the defendant's 
 appearance. 1 
 
 § 136. Frame of a Plea. — A plea is intituled in the cause, and 
 is headed as follows: "The plea of the above-named defendant 
 (or, of A. B., one of the above-named defendants) to the bill of 
 complaint of the above-named plaintiff (or, plaintiffs). " When 
 put in by more than one defendant, the heading runs as follows : 
 " The joint and several plea of the above-named defendants (or 
 of A. B. and C. D., two of the above named defendants : " 2 but 
 if filed by husband and wife in the wife's interest only, the words 
 " and several " should be omitted ; though their use, being mere 
 surplusage, will not vitiate the plea. 2 The title of the plea 
 should agree with that of the cause as stated in the bill. Any 
 corrections which are desired to be made must be put in the 
 heading, thus : " The plea of the above-named defendant, John 
 Aber (in the bill, by mistake called Henry Aber) ; " or, " The 
 plea of Henry Curtis and Mary his wife, lately, and in the bill 
 called Mary Robinson, spinster (or widow, as the case may be)." 3 
 When accompanied by an answer or demurrer, it should be 
 headed: "The plea and answer;" or "The joint;" or "joint 
 and several plea and answer ; " or " The joint and several plea, 
 answer, and demurrer," &c, according to the circumstances. 4 
 Like a demurrer, it is usually, but not necessarily, introduced by 
 a useless protestation against the confession of the truth of any 
 matter contained in the bill. 5 After the protestation, the de- 
 fendant should state in the plea the extent to which it goes ; 
 as whether it is to the whole bill, or to part only, and in the 
 latter case the part to which it is intended to apply. 6 Next 
 should come the substance of the plea together with such aver- 
 ments as are necessary to support it." If these matters are 
 within the defendant's knowledge he should state them posi- 
 tively. 8 Otherwise, upon information and belief. 9 The allega- 
 tions must be made with certainty and not by way of argument, 
 
 § 135. » Rule 18. 6 Mitford's PI. ch. 2, § 2, part 2 ; 
 
 § 136. i Daniell's Ch. Pr. (5th Am. Story's Eq. PI. § 694. 
 ed.) 681. 7 Mitford's PI. ch. 2, § 2, part 2; 
 
 2 Fitch v. Chapman, 2 Sim. & S. 31. Story's Eq. PI. § 694. 
 
 8 Daniell's Ch. Pr. (5th Am. ed.) 681, 8 Foster v. Vassall, 3 Atk. 587 ; Boone 
 
 682. v . Chiles, 10 Pet. 176, 210-213; Story's 
 
 * Daniell's Ch. Pr. (5th Am. ed.) 682. Eq. PI. § 662. 
 
 6 Daniell's Ch. Pr. (5th Am. ed.) 682; 9 Bolton v. Gardner, 3 Paige (N. Y), 
 
 Story's Eq. PI. § 694. 273 ; Story's Eq. PI. § 602.
 
 202 PLEAS. [chap. IX. 
 
 inference, or conclusion. 10 The plea cannot properly allege 
 and rely upon matters all of which are apparent upon the face 
 of the bill. 11 The conclusion of the plea is usually a repetition 
 that the matters so offered are relied upon as an objection to the 
 jurisdiction, or to the person of the plaintiff or defendant, or to 
 the frame of the bill and suit, or in bar of the suit ; praying 
 the judgment of the court, whether the defendant ought to be 
 compelled to make any further or other answer to the bill, or so 
 much thereof as the plea extends to. 12 It does not appear that 
 any particular form of conclusion is necessary to a plea in 
 equity. 13 Every plea must be supported by a certificate of coun- 
 sel, that in his opinion it is well founded in point of law, and by 
 the affidavit of the defendant, that it is not interposed for delay, 
 and that it is true in point of fact. 14 When the facts alleged 
 in the plea are within the defendant's knowledge, he must swear 
 to them positively. Otherwise, upon information and belief. 15 
 Whether the certificate of counsel is required when the defend- 
 ant defends in person has never been decided. 16 If the affidavit 
 or certificate are omitted the proper remedy would seem to be 
 a motion to take the paper purporting to be a plea off the file ; 17 
 but, according to the language of a recent opinion of the Supreme 
 Court, the plea might then be disregarded. 18 By setting down 
 the plea for argument, such a defect is waived. 19 Like all other 
 proceedings in equity, a plea must contain no scandalous or 
 impertinent matter. If it does, the same proceedings may be 
 taken upon it as when scandal or impertinence is contained in 
 an answer. 20 Only one plea can be filed unless by special leave 
 of the court. 21 
 
 § 137. Answers with Pleas. — Although the purpose of a plea 
 is usually to avoid discovery, yet in certain cases it must be ac- 
 
 10 Emma Silver Mining Co. v. Emma Ch Pr. 97 ; Daniell's Ch. Pr. (5th Am. 
 Silver Mining Company of New York, ed.) 311, note 7. 
 
 1 Fed. R. 39 ; Nabob of Arcot v. East 17 Ewing v. Blight, 3 Wall. Jr. 134. 
 India Co., 3 Brown, Ch. C. 292; Story's 18 National Bank v. Insurance Co., 104 
 
 Eq. PI. § 662. U. S. 54. 
 
 11 Billing v. Flight, 1 Madd. 230 ; Story's 19 Goodyear v. Toby, 6 Blatchf. 130. 
 Eq. PI. § 660. 20 Daniell's Ch. Pr. (2d Am. ed.) 686. 
 
 12 Story's Eq. PI. § 694 ; Mitford's See Dixon v. Olmius, 1 Cox, Eq. 412. 
 
 PI. ch. 2, § 2, part 2. 21 Wheeler v. McCormick, 8 Blatchf. 
 
 1 3 Daniell's Ch. Pr. (5th Am. ed.) 688. 267 ; Lamb v. Starr, Deady, 351 ; Noyes 
 
 14 Rule 31. v. Willard, 1 Woods, 187 ; Reissner v. 
 
 15 Ewing v. Blight, 3 Wall. Jr. 134. Anness, 12 Off. Gaz. 842 ; s. c. 3 Bann & 
 « See U. S. R. S. § 747 ; 1 Hoffman's A. 148.
 
 § 137.] ANSWERS WITH PLEAS. 203 
 
 companied by an answer. If the plea be to a part only of the 
 bill, it must be accompanied by an answer or demurrer to the res- 
 idue. 1 " In every case where the bill specially charges fraud or 
 combination, a plea to such part must be accompanied with an 
 answer fortifying the plea and explicitly denying the fraud and 
 combination, and the facts on which the charge is founded." 2 
 Negative and anomalous pleas must usually be accompanied by 
 an answer giving the discovery required by the bill. 3 This sub- 
 ject is now of comparatively little importance, as the objections 
 raised by such pleas can now be taken by answer 4 with more 
 safety and convenience. The clearest statement and explanation 
 of the rule with which the writer is acquainted, is that by Pro- 
 fessor Langdell. " If the defence which is set up by a plea has 
 been anticipated by the bill, and evidence has been charged in 
 disproof of the defence, the defendant must answer such charges 
 of evidence, notwithstanding his plea, for an answer to that 
 extent will be needed in trying the truth of the plea. The de- 
 fendant, therefore, incorporates an answer with his plea ; and 
 then the answer is said to support the plea. Such an answer, it 
 will be observed, contains discovery only, and it is called an 
 answer in support of a plea, to distinguish it from the case where 
 a defendant defends by answer as to part of the bill, and by plea 
 as to part." 5 "If a bill anticipates a defence, and, without ad- 
 mitting its truth, replies to it affirmatively, and the defendant 
 wishes to set up the defence by plea, it is obvious that he must 
 traverse the anticipatory replication ; for otherwise, in the event 
 of issue being taken upon the truth of the plea, the affirmative 
 replication will be admitted to be true. A negative rejoinder, 
 therefore, must be incorporated with the affirmative plea. Such 
 pleas have become common in modern times ; and being partly 
 affirmative and partly negative, they are distinguished by the 
 name of anomalous pleas. If the defendant should not be pre- 
 pared to deny the truth of the affirmative replication, and should 
 wish to set up an affirmative answer to it, of course both branches 
 of his plea should be affirmative ; but no instance of such a plea 
 
 § 137. 1 Rules 18, 32; Langdell's Eq. . 3 Dwight v. Central Vermont R.R. Co., 
 PI. § 99; Ferguson v. O'Harra, Pet. 9 Fed. R. 785; Langdell's Eq. PI. §§ 101- 
 C. C. 493. 114. 
 
 2 Rule 32 ; Piatt v. Oliver, 1 McLean, * Rule 39. 
 295 ; Lewis v. Baird, 3 McLean, 5G ; & Langdell's Eq. PI. § 100. 
 Bailey v. Wright, 2 Bond, 181.
 
 204 PLEAS. [CHAP. IX. 
 
 has been found in the reported cases. If an anomalous plea be 
 put in issue, it will be seen that each party has something to 
 prove ; namely, the defendant his affirmative defence, and the 
 plaintiff his affirmative replication; and the plaintiff is, therefore, 
 entitled to discovery as to the latter. Consequently, an anom- 
 alous plea must always be supported by an answer as to the 
 allegations which constitute the replication, and as to all charges 
 of evidence, if any, in support of such allegations." 6 Such an 
 answer is usually prefaced by an averment that the defendant 
 does not thereby waive his plea, but wholly relies thereon. 7 
 
 § 138. Proceedings of the Plaintiff when a Plea is filed. — If 
 the allegations in a plea are sufficient and true, but the plaintiff 
 can produce new matter which will avoid its effect, he must 
 amend his bill, introducing by way of pretence or otherwise a 
 statement of the matters contained in the plea, and also a sub- 
 stantive allegation of the new matter by which he avoids it. 
 In such a case, at common law or by the earlier chancery prac- 
 tice, he would reply by confession and avoidance ; but special 
 replications are no longer used in equity, their purpose being 
 sufficiently answered by the practice of amendment. 1 Other- 
 wise, the plaintiff may either move to take the plea off the file 
 for irregularity, 2 or set down the plea to be argued, 3 or move 
 for a reference to a master, 4 or take issue upon the plea. 5 If 
 he neither amends nor takes any of these proceedings before 
 the rule-day next after that on which the same was filed, he is 
 deemed to admit the truth and sufficiency of the plea, and his 
 bill will be dismissed as of course, unless a judge of the court 
 shall allow him further time for the purpose. 6 More indulgence 
 in this respect will be allowed to States than to individuals, 7 
 and the plaintiff is not obliged to take notice of a plea until it 
 has been entered in the order book or served upon him. 8 In 
 case of a motion to take the plea off the file, it will be more 
 prudent to obtain an extension of time wherein to reply or set 
 
 6 Langdell's Eq. PI. § 101. See also 2 Ewing v. Blight, 3 Wall. Jr. 134. 
 
 Langdell's Eq. PI. §§ 102-114; Story's 3 Rule 33. 
 
 Eq. PI. §§ 668-674 ; Foley v. Hill, 3 Myl. * Tarleton v. Barnes, 2 Keen, 632. 
 
 & Cr. 476. 5 Rule 33. 
 
 * Story's Eq. PI. § 695. 6 Rule 38. 
 
 §138. 1 Mason v. Hartford, Providence, 7 Rhode Island v. Massachusetts, 14 
 
 & Fishkill R. R. Co., 10 Fed. R. 334 ; Pet. 210. 
 
 Rules 29, 66 ; Story's Eq. PI. chs. xix., 8 Newby v. Oregon Central Ry. Co., 1 
 
 xx. Saw. 63, 65.
 
 § 139.] MOTION TO TAKE A PLEA OFF THE FILE. 205 
 
 down the plea, in case it should be allowed to remain. 9 No one, 
 except the defendant who files a plea, can take advantage of 
 the failure of the plaintiff to act upon it. 10 Where the plaintiff 
 had taken no action upon the plea for eight months, it was held 
 that the defendant might withdraw it and file an answer. 11 
 Otherwise, neither party is, in general, at liberty to take any 
 step in a cause after the filing of a plea, until the plea is dis- 
 posed of. 12 If the defendant pleads to the relief only, and pro- 
 poses to answer the whole discovery required, the plaintiff may 
 file exceptions to the answer. 13 This, it was formerly held, he 
 could not do unless by special leave of the court, without 
 thereby admitting the truth of a plea which extended to any 
 part of the discovery. 14 In an extraordinary case, a motion for 
 an injunction might be made while a plea was pending; but the 
 more usual course is to pray the court to expedite the hearing 
 of the plea. 15 When a plea and a demurrer were filed at the 
 same time, it was held that action on the plea should be post- 
 poned till the hearing on the demurrer. 16 
 
 § 139. Motion to take a Plea off the File. — A motion to take a 
 plea off the file is, it seems, the proper remedy, when the plea 
 was filed too late, 1 or has such an irregularity in form as the 
 omission of the requisite affidavit and certificate. 2 In a patent 
 case, a plea which simply denied infringement was stricken 
 from the files as improper in form. 3 When two pleas are filed 
 without special leave, the defendant will be obliged to elect 
 between them within ten days. Otherwise, both will be ordered 
 to stand for an answer, 4 or possibly be stricken out. 5 Unless, 
 however, an objection to such a defect is specifically made, it 
 will be considered waived. 6 
 
 9 See Rule 38. § 139. 1 McKewan v. Sanderson, L. R. 
 
 i° Chicago & Alton R. R. Co. v. Union 16 Eq. 316 ; Ewing v. Blight, 3 Wall. Jr. 
 
 Rolling Mill Co., 109 U. S. 702, 717, 134. 
 
 11 Oliver v. Decatur, 4 Cranch C. C. 2 Ewing v. Blight, 3 Wall. Jr. 134; 
 458. Sharp v. Reissner, 20 Blatchf. 10, 13. 
 
 12 Daniell's Ch. Pr. (5th Am. ed.) 691 ; But see National Bank v. Insurance Co., 
 Buchanan v. Hodgson, 11 Beav. 368. 104 U. S. 54, 76; Secor v. Singleton, 9 
 
 13 Pigot v. Stace, 2 Dickens, 496 ; Sid- Fed. R. 809 ; s. c. 3 McCrary, 230. 
 
 ney v. Perry, 2 Dickens, 602. 3 Sharp v. Reissner, 20 Blatchf. 10, 13. 
 
 14 Darnell v. Reyny, 1 Vern. 344; * Reissner v. Anness, 12 Off. Gaz. 842 ; 
 Brovnell v. Curtis, 10 Paige (N. Y.), 210. s. c. 3 Bann. & A. 148 ; Noyes v. Willard, 
 
 15 Ewing v. Blight, 3 Wall. Jr. 139 ; 1 Woods, 187. 
 
 Humphreys v. Humphreys, 3 P. Wms. 6 Newby v. Oregon Central Ry. Co., 
 
 395. 1 Saw. 63, 67. 
 
 16 Cambell v. Mayer, 33 Fed. R. 795. 6 Sharon v. Hill, 22 Fed. R. 28.
 
 206 PLEAS. [chap. IX. 
 
 § 140. Argument of a Plea. — " If the plaintiff conceives a plea 
 to be defective in point of form or substance, he may take the 
 judgment of the court upon its sufficiency. And if the de- 
 fendant is anxious to have the point determined, he may also 
 take the same proceeding." 1 A plea is set down for argument 
 in the same manner as is a demurrer, and the proceedings at 
 the argument are also substantially the same. A plaintiff has 
 been allowed, although the practice is irregular, to file a de- 
 murrer to a plea; in which case the demurrer presents the 
 question of the sufficiency of the bill as well as the plea. 2 The 
 sufficiency of the bill as to substance is also tested when 
 the plea is set down for argument ; but it has been said that 
 the allegations therein are not taken so strictly against the com- 
 plainant as in case of a demurrer. 3 For the purpose of the 
 argument, all allegations in the plea which are not inconsistent 
 with each other are presumed to be true ; 4 but if a document is 
 referred to in the plea and annexed thereto, its language will 
 control the description of it set forth in the body of the plea. 5 
 Upon argument, a plea may be allowed, or the benefit thereof 
 may be reserved to the hearing, or it may be ordered to stand 
 for an answer, or it may be overruled. 6 " In the first case the 
 plea is determined to be a full bar to so much of the bill as 
 it covers, if the matter pleaded, with the averments necessary 
 to support it, are true." 7 If, therefore, a plea is allowed upon 
 argument the plaintiff ma}' take issue upon it, and have a 
 trial of the truth of the facts upon which it is sought to be 
 supported. 8 " If a plea accompanied by an answer is allowed, 
 the answer may be read at the hearing of the cause to counter- 
 prove the plea." 9 If upon the hearing any demurrer or plea 
 be allowed, the defendant is entitled to his costs. But the 
 court may, in its discretion, upon motion of the plaintiff, allow 
 him to amend his bill upon such terms as it shall deem rea- 
 sonable. 10 " If, upon argument, the benefit of a plea is saved 
 
 § 140. l Mitford's PL ch. 2, § 2, part 2. 5 Wheeler v. McCormick, 8 Blatchf. 
 
 2 Beard v. Bowler, 2 Bond, 13 ; Good- 267. 
 
 yeary. Toby, 6 Blatchf. 130. See Stead's 'Mitford's PL ch. 2, § 2, part 2; 
 Executors v. Course, 4 Cranch, 403, 410. See Rhode Island v. Massachusetts, 14 
 
 3 Rumbold v. Forteath, 2 Jur. (n. s.) Pet. 210, 257-259. 
 
 686. 7 Mitford's PL ch. 2, § 2, part 2. 
 
 * Melius v. Thompson, 1 Cliff. 125 ; 8 Mitford's PL ch. 2, § 2, part 2. 
 
 Executors of Gallagher v. Roberts, 1 9 Mitford's PL ch. 2, § 2, part 2. 
 Wash. 320. 10 Rule 35.
 
 § 140.] ARGUMENT OF A PLEA. 207 
 
 to the hearing, it is considered that so far as appears to the 
 court it is a full defence, but that there may be matter disclosed 
 in evidence which would avoid it, supposing the matter pleaded 
 to be strictly true ; and the court therefore will not preclude 
 the question." u In such a case, the truth of the plea must be 
 established, and at the hearing the plaintiff may avoid it by other 
 matter, which he is at liberty to prove. 12 " When a plea is 
 ordered to stand for an answer, it is merely determined that it 
 contains matter which may be a defence, or part of a defence ; 
 but that it is not a full defence, or it has been informally offered 
 by way of plea, or it has not been properly supported by answer 
 so that the truth of it is doubtful. For if a plea requires an 
 answer to support it, upon argument of the plea the answer 
 may be read to counterprove the plea ; and if the defendant 
 appears not to have sufficiently supported his plea by his answer, 
 the plea must be overruled, or ordered to stand for an answer 
 only. A plea is usually ordered to stand for an answer where 
 it states matter which may be a defence to the bill, though 
 perhaps not proper for a plea, or informally pleaded. But if a 
 plea states nothing which can be a defence, it is merely over- 
 ruled. If a plea is ordered to stand for an answer, it is allowed 
 to be a sufficient answer to so much of the bill as it covers, 
 unless by the bill liberty is given to except. But that liberty 
 may be qualified, so as to protect the defendant from any par- 
 ticular discovery which he ought not to be compelled to make ; 
 and if a plea is accompanied by an answer, and is ordered to 
 stand for an answer without liberty to except, the plaintiff may 
 yet except to the answer as insufficient to the parts of the bill 
 not covered by the plea." 13 Where one defense is made by the 
 plea and another by an answer filed with it, the plea may be 
 ordered to stand for an answer. 14 
 
 A plea formerly might have been overruled for three reasons ; 
 because it was bad, as defective in form, or insufficient in point 
 of law ; because, though good as to a part of the bill, it was filed 
 to more than it could cover ; and because the defendant an- 
 swered some or all of the matters covered by it. 15 Now, 
 
 11 Mitford's PI. ch. 2, § 2, part 2. 1 5 Wigram on Discovery (1st ed.), 172- 
 
 12 Story's Eq. PL § 698; Rhode Island 181 ; Story's Eq. PI. §§ 688, 693 ; Thring 
 v. Massachusetts, 14 Pet. 210, 257-259. v. Edgar, 2 Sim. & S. 274; Salkeld v. 
 
 13 Mitford's PI. ch. 2, § 2, part 2. Science, 2 Ves. Sen. 107 ; Chamberlain 
 
 14 Lewis v. Baird, 3 McLean, 56, 62. v. Agar, 2 V. & B 259 ; Stearns v. Page,
 
 208 PLEAS. [chap. IX. 
 
 however, a pure plea, though filed to the whole bill, may be 
 sustained as to a part only. 16 But an answer to the whole bill 
 will overrule a plea in bar filed by the answering defendant. 17 
 "The rule that no plea is to be held bad only because the answer 
 may extend to some part of the same matter as may be covered 
 by the plea, is not applicable where the answer extends to the 
 whole of the matter covered by the plea." 18 If upon the hear- 
 ing any plea is overruled, the plaintiff is entitled to his costs in 
 the cause up to that period, unless the court is satisfied that the 
 defendant has good ground, in point of law or fact, to interpose 
 the same, and it was not interposed vexatiously or for dela}^. 
 And upon the overruling of any plea, the defendant is assigned 
 to answer the bill, or so much thereof as is covered by the plea, 
 the next succeeding rule-day, or at such other period as, con- 
 sistently with justice and the rights of the defendant, the same 
 can in the judgment of the court be reasonably done ; in de- 
 fault whereof, the bill is taken against him pro confesso, and the 
 matter thereof proceeded in and decreed accordingly. 19 Under 
 this rule it has been held that permission to answer cannot be 
 denied the defendant. 20 Upon the overruling of a plea, permis- 
 sion to amend it may be given ; 21 or a second plea upon a 
 different ground may be interposed, but only by leave of the 
 court. 22 If put in without leave, such a new plea will, on 
 motion, be taken off the file. 23 It seems that after his plea is 
 overruled, the defendant may demur, at least to a part of the 
 bill, by leave of the court. 24 
 
 § 141. Motion for a Reference of a Plea. — There are some pleas 
 upon which no issue is taken. Such were pleas of outlawry and 
 excommunication, which were always pleaded sub sigillo, that is, 
 
 1 Story, 204 ; Ferguson v. O'Harra, Pet. 19 Rule 36. 
 
 C. C. 493. 20 Wooster v. Blake, 7 Fed. R. 816. 
 
 16 Rules 36, 37 ; Wythe v. Palmer, 21 Sanders v. King, 6 Madd. 61 ; Loving 
 3 Saw. 412 ; Kirkpatrick v. White, 4 v. Fairchild, 1 McLean, 333 ; U. S. R. S. 
 Wash. 595. But see Milligan v. Milledge, §954. 
 
 3 Cranch, 220. ^ McKewan v. Sanderson, L. R. 16 
 
 17 Grant v. Phoenix Life Ins. Co., 121 Eq. 316 ; Chadwick v. Broadwood, 3 
 TJ. S. 105, 115; Dakin v. Union Pacific Beav. 316; Lamb v. Starr, Deady, 350; 
 Ry. Co., 5 Fed. R, 665 ; Crescent City Wheeler v. McCormick, 8 Blatchf. 267. 
 Live Stock Co. v. Butchers' Union Live 23 McKewan v. Sanderson, L. R. 16 
 Stock Co., 12 Fed. R. 225. But see Eq. 316. 
 
 Hayes v. Dayton, 8 Fed. R. 702, 706. 24 The East India Company v. Camp- 
 
 18 Grant v. Phoenix Life Ins. Co., 121 bel, 1 Ves. Sen. 246; Daniell's Ch. Pr. 
 U. S. 105, 115. (5th Am. ed.) 702.
 
 § 143.] HEARING UPON PLEAS. 209 
 
 under the seal of the court which had pronounced the sentence. 
 The truth of the fact pleaded in them could, therefore, be ascer- 
 tained from the form of pleading. The plaintiff was, however, 
 at liberty to show that the plea was defective in form, or that it 
 did not apply to the particular case ; and for these purposes he 
 might have the plea argued. 1 " Pleas of a former decree, or of 
 another suit depending, are generally in the same predicament, 
 being referred to a master to inquire into the fact. If in any of 
 these cases, the master reports the fact true, the bill stands 
 instantly dismissed, unless the court otherwise orders. But the 
 plaintiff may except to the master's report, and bring on the 
 matter to be argued before the court ; and if he conceives 
 the plea to be defective, in point of form or otherwise, indepen- 
 dent of the mere truth of the fact pleaded, he may set down the 
 plea to be argued as in the case of pleas in general." 2 Where 
 it is manifest upon the face of the plea that the two suits are not 
 alike, no reference will be ordered. 3 By the English practice, if 
 the plaintiff set down a plea for argument, he admitted its truth ; 
 and if good in form it was sustained. 4 
 
 § 142. Hearing upon Pleas. — If the complainant deems a plea 
 sufficient in form, or it has been so held by the court, he can 
 still test its truth by taking issue upon it. 1 He does this by 
 filing the general replication. 2 The proceedings in taking testi- 
 mony, and bringing the cause to a hearing, are substantially the 
 same as after an issue raised upon an answer. 3 At the hearing, 
 the defendant has the right to open and close the argument, and 
 the burden of proof rests upon him. 4 If the plea be then found 
 false, the plaintiff may, if he so choose, have the bill taken pro 
 confesso. 6 " Having put the plaintiff to the trouble and delay of 
 an issue, the defendant cannot, after it has been found against 
 
 § 141. ! Mitford's PI. ch. 2, § 2, part 2. 2 Hughes v. Blake, 6 Wheat. 453. 
 
 * Mitford's PI. ch. 2, § 2, part 2. 8 Reissner v. Anness, 13 Off. Gaz. 7 ; 
 
 See also Emma Silver Mining Co. v. Lilienthal v. Washburn, 8 Fed. R. 707 ; 
 
 Emma Silver Mining Company of New Hughes v. Blake, 6 Wheat. 453, 472 ; 
 
 York, 1 Fed. R. 39 ; Jones v. Segueira, Farley v. Kittson, 120 U. S. 303. 
 
 1 Phillips, 82; Story's Eq. PI. §§ 700, 4 Stead's Executors v. Course, 4 Cranch, 
 
 743,744. 403,413; Gernon v. Boecaline, 2 Wash. 
 
 3 Loringu. Marsh, 2 Cliff. 311. 199; Farley v. Kittson, 120 U. S. 303; 
 
 4 Tarleton v. Barnes, 2 Keen, 632. Lilienthal v. Washburn, 8 Fed. R. 707 ; 
 See Story's Eq. PI. §§ 743, 744. Sharon v. Hill, 22 Fed. R. 28. 
 
 § 142. i Mitford's PI. ch. 2, § 2, 5 Kennedy v. Creswell, 101 U. S. G41, 
 part 2 ; Rhode Island v. Massachusetts, 644 ; Mitford's PI. ch. 2, § 2, part 2. 
 14 Pet. 210, 257. 
 
 14
 
 210 PLEAS. [CHAP. IX. 
 
 him, claim the right to file an answer, although, if the complain- 
 ant desires a discovery, which the plea is sought to avoid, he may 
 undoubtedly insist upon it." 6 In an extraordinary case, how- 
 ever, the court might still allow the defendant to answer." If 
 the plea were found true, according to the former practice the 
 plea was held a complete defense to so much of the bill as it was 
 intended to apply to ; and if filed to the whole bill, the bill 
 would be dismissed as of course, irrespective of the sufficiency of 
 the plea. 8 Now, however, the equity rules provide that " if, 
 upon an issue, the facts stated in the plea be determined for the 
 defendant, they shall avail him as far as in law and equity they 
 ought to avail him." 9 Under this rule, it has been held that after 
 a replication has been filed and testimony taken, the court may, 
 without examining the testimony, overrule the plea for insuffi- 
 ciency and allow the defendant to answer. 10 If, however, the 
 truth of a plea upon which issue has been joined is not estab- 
 lished, the bill cannot before answer be dismissed for want of 
 equity. 11 Leave to withdraw the replication and amend or to set 
 down the plea for argument may under special circumstances be 
 obtained. 12 By replying to a plea, objections to its form or for a 
 failure to support it by answer are waived. 13 
 
 § 143. General Remarks upon Pleas. — In conclusion, it may be 
 remarked that the cautious practitioner will act wisely in eschew- 
 ing the use of pleas, unless he desires to plead matter in abate- 
 ment, or in extraordinary cases. For it is as true now as in the 
 time of Beames, that the subject of pleas in equity is one " con- 
 cerning which so much still remains to be elucidated, that it may 
 be said of them, maxima pars eorum quae scimus est minima eorum 
 quae ignoramus.' 1 '' 1 
 
 6 Mr. Justice Bradley in Kennedy v. 10 Matthews v. Balance & G. Manuf. 
 Creswell, 101 U. S. 641, 644. Co., 2 Fed. R. 232. But see Myers v. 
 
 7 In the language of Chief Justice Dorr, 13 Blatchf. 22 ; Theberath v. Rub- 
 Taney, in Poultney v. City of La Fayette, ber & Celluloid Harness Trimming Co., 
 12 Pet. 472, 474. 5 Bann. & A. 584 ; Cottle v. Krementz, 25 
 
 8 Hughes v. Blake, 6 Wheat. 453 ; Fed. R. 494. 
 
 s. c. 1 Mason, 515 ; Rhode Island v. n Farley v. Kittson, 120 U. S. 303. 
 
 Massachusetts, 14 Pet. 210, 257 ; Myers 12 Cottle v. Krementz, 25 Fed. R. 404 ; 
 
 v. Dorr, 13 Blatchf. 22; Theberath v. Hughes v. Blake, 6 Wheat. 453, 473 j 
 
 Rubber & Celluloid Harness Trimming Rules 29 and 35. 
 
 Co., 5 Bann. & A. 584 ; Cottle v. Krementz, 13 Stead's Executors u.Course, 4 Cranch, 
 
 25 Fed. R. 494 ; Birdseye v. Heilner, 26 Fed. 403 ; Farley v. Kittson, 120 U. S. 303. 
 
 R. 147 ; Bean v. Clark, 30 Fed. R. 225. § 143. * Beames on Pleas, 61. 
 
 9 Rule 33. But see Myers v. Dorr, 13 
 Blatchf. 22.
 
 § 144.] PLEADING DEFENSES IN AN ANSWER. 211 
 
 CHAPTER X. 
 
 ANSWERS AND DISCLAIMERS. 
 
 § 144. Pleading Defenses in an Answer. — An answer in equity 
 serves two purposes, the setting up of the defenses to the suit, 
 and discovery. It cannot ordinarily pray relief against the com- 
 plainant, and never against a co-defendant. 1 If a defendant 
 desires such relief he must ordinarily file a cross-bill. 2 The de- 
 fendant is entitled in all cases by answer to insist upon all matters 
 of defense (not being matters of abatement, or to the character of 
 the parties, or matters of form), in bar of or to the merits of the 
 bill, of which he may be entitled to avail himself by a plea in 
 bar. 3 An answer may contain defenses which have been pre- 
 viously raised by plea or demurrer and overruled. 4 Facts that 
 have occurred since the filing of the bill may be pleaded in an 
 answer. 5 The defenses must not be inconsistent with each other. 6 
 If so, it seems, that both will be disregarded, 7 unless the incon- 
 sistent allegations are trifling, when they may be treated as sur- 
 plusage. 8 It is not considered inconsistent for a defendant both 
 to deny the complainant's title and to allege that he has waived 
 a right which he claims under it. 9 The defense of a license from 
 the plaintiff to commit the acts complained of is, in the absence 
 of special covenants or recitals in the license, not inconsistent with 
 other defenses impugning the validity of complainant's patent. 10 
 
 § 144. ! Ford v. Douglas, 5 How. 143 ; 6 Chapman v. School District No. 1, 
 
 Hubbard v. Turner, 2 McLean, 519; Deady, 108, 115 ; Jesus College v. C.ibbs, 
 
 Morgan v. Tipton, 3 McLean, 339 ; Chapin 1 Y. & C. 145, 147; Leech r. Bailey, 6 
 
 v. Walker, 6 Fed. R. 794; s. c. 2 Mc- Price, 504; Daniell's Ch. Pr. (5th Am. 
 
 Crary, 175. ed.), 714. 
 
 2 See chapter XIII., Cross-Bills. 7 Jesus College v. Gibbs, 1 Y. & C. 
 
 8 Rule 39. 145; Daniell's Ch. Pr. (5th Am. ed.) 714. 
 
 * Crawford v. The William Ponn, 3 8 Jenkinson v. Royston, 5 Price, 49G, 
 
 Wash. 484 ; Burnley v. Town of Jefferson- 510; Daniell's Ch. Pr. (5th Am. ed.) 
 
 villi-, 3 McLean, 336; Storms v. Kansas 714. 
 
 Pacific Ry. Co., 5 Dill. 486 ; Rhode Is- 9 Carte v. Ball, 3 Atk. 496, 499 ; Dan- 
 land v. Massachusetts, 14 Pet. 210. iell's Ch. Pr. (5th Am. ed.) 714. 
 
 5 Earl of Leicester v. Perry, 1 Brown 10 National Manuf. Co. v. Meyers, 7 
 
 Ch. C. 305 ; Turner v. Robinson, 1 Sim. & Fed. R. 355. 
 S. 3.
 
 212 ANSWERS AND DISCLAIMERS. [CHAP. X. 
 
 The defenses must be pleaded with sufficient certainty ; n although 
 it seems that the same degree of certainty is not required in an 
 answer as in a bill, 12 or a plea. 13 It has been said that " the 
 respondent cannot set up as a defense that if complainant's 
 patent be so construed as to cover the machine made and sold by 
 him, then the machine embraced in said patent was known and 
 used prior to the invention thereof by the patentee." 14 An aver- 
 ment that a patent " was obtained upon false and fraudulent 
 representations by the plaintiffs, or some of them, made to the 
 commissioner of patents, and is wholly void at law," is also too 
 uncertain to be sufficient to constitute a defense. 15 The general 
 rule is that no affirmative defense can be proved unless it has 
 been set up in the answer. 16 In a suit to restrain the infringe- 
 ment of a patent, a license is an affirmative defense. 17 It has 
 been said that, if a defendant states in his answer certain facts as 
 evidence of a particular case, which he represents to be the con- 
 sequence of those facts, and upon which he rests his defense, he 
 is not permitted afterwards to make use of the same facts, for the 
 purpose of establishing a different defense from that to which, by 
 his answer, he has drawn the plaintiff's attention. 18 Thus it has 
 been said that where fraud is set up in the answer " the party 
 making the charge, if it is denied in a proper pleading, will be 
 confined to that issue." 19 
 
 § 145. Defenses peculiar to Patent Cases. — The Revised Statutes 
 provide that the defendant to a suit in equity for relief against 
 an alleged infringement of a patent may set up in his answer any 
 one or more of the following defenses, and give notice therein that 
 he will offer proof of the same : " First, that for the purpose of 
 deceiving the public the description and specification filed by the 
 patentee in the Patent Office was made to contain less than the 
 whole truth relative to his invention or discovery, or more than 
 is necessary to produce the desired effect ; or, second, that he had 
 
 " Graham v. Mason, 4 Cliff. 88; Arm- ling, 3 C. E. Green (18 N. J. Eq.), 132 ; 
 
 strong v. Lear, 8 Pet. 52. Daniell's Ch. Pr. (5th Am. ed.) 712 ; Black 
 
 i 2 Daniell's Ch. Pr. (5th Am. ed.) 714 v. Thorne, 10 Blatchf. 66, 84; Sperry v. 
 
 18 Maury v. Mason, 8 Porter (Ala.), 213, Erie Ry. Co., 6 Blatchf. 425. 
 
 228. 17 Watson v. Smith, 7 Fed. R. 350. 
 
 i* Graham v. Mason, 4 Cliff. 88. i 8 Langdell's Eq. PI. § 79 ; Bennett v. 
 
 15 Clark v. Scott, 5 Fisher, 245. Neale, Wightwick, 324. 
 
 16 Stanley v. Robinson, 1 Russ. & M. J9 French v. Shoemaker, 14 Wall. 314, 
 527 ; Cummings v. Coleman, 7 Rich. 335. See § 70. 
 
 (S. C.) Eq. 509, 520; Burnham v. Dal-
 
 § 145.] DEFENSES PECULIAR TO PATENT CASES. 213 
 
 surreptitiously or unjustly obtained the patent for that which was 
 in fact invented by another, who was using reasonable diligence 
 in adapting and perfecting the same ; or, third, that it had been 
 patented or described in some printed publication prior to his 
 supposed invention or discovery thereof ; or, fourth, that he was 
 not the originator and first inventor or discoverer of any material 
 and substantial part of the thing patented ; or, fifth, that it had 
 been in public use or on sale in this country for more than two 
 years before his application for a patent, or had been abandoned 
 to the public. And in notices as to proof of previous invention, 
 knowledge, or use of the thing patented, the defendant shall state 
 the names of patentees and the elates of their patents, and when 
 granted, and the names and residences of the persons alleged to 
 have invented, or to have had the prior knowledge of the thing 
 patented, and where and by whom it had been used ; and if any 
 one or more of the special matters alleged shall be found for the 
 defendant, a decree shall be entered in his favor with costs." * 
 Under this statute, it has been held that no evidence can be 
 admitted in support of any of these defenses, unless it has been 
 properly pleaded and the requisite notice has been given to the 
 complainant ; 2 but that the respondent, after pleading these 
 defenses or some of them, with the names of such of the persons 
 therein referred to as he then knows, may also plead a general ' 
 allegation, "that the same had been previously invented and 
 known and used by many other persons, whose names are un- 
 known to the respondent, which, when known, the respondent 
 prays leave to insert and set forth in the answer." 3 Upon the 
 subsequent discovery of any such persons, testimony concerning 
 them may be taken, and leave obtained from the court to insert 
 their names in the answer by amendment nunc pro tunc. An 
 order to this effect may be obtained before or after the testimony 
 has been taken. 4 It seems that when a previous patent has not 
 been referred to in an answer, such patent may still be proved, as 
 evidence of a prior use of the invention, which has been j)roperly 
 
 § 145. i U. S. R. S. § 4920. 42 ; Williams v. Boston & A. R. R. Co., 17 
 
 2 Teese v. Huntingdon, 23 How. 2; Blatchf. 21 j Decker v. Grote, 10 Blatchf. 
 
 Agawam Co. v. Jordan, 7 Wall. 583 ; 331. 
 
 Blanchard v. Putnam, 8 Wall. 420 ; Bates 3 Roemer v. Simon, 05 U. S. 214, 220 ; 
 
 v. Coe, 98 'XL S. 31 ; Pitts v. Edmonds, 2 Brown v. Hall, 6 Blatchf. 405. 
 
 Fisher, 52, 54 ; Salamander Co. v. Haven, * Roemer v. Simon, 95 U. S. 214, 220; 
 
 3 Dill. 131 ; Jennings v. Pierce, 15 Blatchf. Brown v. Hall, G Blatchf. 405.
 
 214 ANSWERS AND DISCLAIMERS. [CHAP. X. 
 
 pleaded, 5 to show the state of the art at the date of the com- 
 plainant's alleged invention. 6 It is unsettled whether the defense 
 of insufficient description can be set up without alleging an 
 intent to deceive the public." It has been said concerning the 
 defense of want of novelty: "Where the thing patented is an 
 entirety, consisting of a separate device or of a single combina- 
 tion of old elements incapable of division or separate use, the 
 respondent cannot make good the defense in question by proving 
 that a part of the entire invention is found in one prior patent, 
 printed publication, or machine, and another part in another, 
 and so on indefinitely, and from the whole or any given number 
 expect the court to determine the issue of novelty adversely to 
 the complainant." 8 " Defenses of the kind, if the thing patented 
 is an entirety, incapable of division or of separate use, must be 
 addressed to the invention, and not to a part of it, or to one or 
 more claims of the patent, if less than the entire invention. 
 More than one patent may be included in one suit, and more 
 than one invention may be secured in the same patent ; in which 
 cases the several defences may be made to each patent in the 
 suit, and to each invention, to which the charge of infringement 
 relates." 9 It has been said that a defense charging that the origi- 
 nal patentee " fraudulently and surreptitiously obtained the 
 •patent for that which he well knew was invented by another, 
 unaccompanied by the further allegation that the alleged first 
 inventor was at the time using reasonable diligence in adapting 
 and perfecting the invention, is not sufficient to defeat the 
 patent, and constitutes no defense to the charge of infringe- 
 ment." 10 The question whether a defendant has an interest in 
 the patent which is the foundation of the bill, and whether he 
 has a license to use such patent, cannot be considered unless 
 specifically raised b} T plea or answer. 11 
 
 5 Atlantic Works «?. Brady, 107 U.S. 8 Mr. Justice Clifford in Parks v. 
 192. But see Parks v. Booth, 102 U. S. Booth, 102 U. S. 96, 104 ; citing Bates v. 
 96, 105. Coe, 98 U. S. 81. 
 
 6 American Saddle Co. v. Hogg, 1 9 Mr. Justice Clifford in Parks v. 
 Holmes, 133 ; s. c. 6 Fisher, 67 ; Steven- Booth, 102 U. S. 96, 104, 105. 
 
 son v. Magowan, 31 Fed. R. 824. 19 Mr. Justice Clifford in Agawam Co. 
 
 1 Loom Co. v. Higgins, 105 U. S. 580, v. Jordan, 7 Wall. 583, 597. 
 
 588, 589 ; Grant v Raymond, 6 Pet. 218 ; " Puetz v. Bransford, 31 Federal Re- 
 
 Whittemore v. Cutter, 1 Gall. 429 ; Low- porter, 458. 
 ell !'. Lewis, 1 Mason, 182 ; Gray v. 
 James, Pet. C. C. 394.
 
 § 146.] ADMISSIONS AND DENIALS INDEPENDENT OF DISCOVEKY. 215 
 
 § 146. Admissions and Denials independent of Discovery. — Ac- 
 cording to Professor Langdell, " If the defendant has no affirma- 
 tive defense, the answer need contain nothing but discovery, 
 unless the defendant proposes to offer a line of evidence in dis- 
 proof of the bill which may take the plaintiff by surprise ; in 
 which case it will be prudent to indicate the nature of such evi- 
 dence in the answer. This should be done also whenever it is 
 at all doubtful whether the evidence establishes an affirmative 
 defence or is in denial of the bill." 2 Although the weight of 
 authority is in support of the rule that a failure to deny an alle- 
 gation in the bill does not operate as an admission of its truth, 
 provided some answer is made, 2 it is more prudent and is cus- 
 tomary, even when an answer under oath is waived, for the 
 defendant to deny or admit every allegation in the bill ; and out 
 of abundant caution a general traverse denying the unlawful 
 combination charged in the bill, and all other matters therein 
 contained, is still often inserted after the specific denials. 3 The 
 statement that the respondent believes an allegation to be true is 
 equivalent to an admission ; 4 but the statement that he has no 
 knowledge upon the subject seems to be equivalent to a denial, 5 
 although, if full discovery be required, it is subject to exception 
 for insufficiency. 6 The denial of a conclusion of law is of no 
 effect. 7 Thus, when the bill alleged that the defendant executed 
 and delivered a deed, a denial by the defendant of its delivery, 
 accompanied by an admission that he made the deed and placed 
 it upon record, is equivalent to an admission of its delivery. 8 
 There is no need of a denial of the common confederacy clause 
 unless accompanied by special charges of combination. 9 When 
 defendants avoided answering specific interrogatories concerning 
 a charged infringement, but merely denied the use of any ma- 
 
 § 146. i Langdell's Eq. PI. § 79. ° Kittredge v. Claremont Bank, 1 W. 
 
 - Young i'. Grundy, 6 Cranch, 51 ; & M. 244. 
 
 Brown j;. Pierce, 7 Wall. 205, 211; Brooks 7 Adams v. Adams, 21 "Wall. 185; 
 
 v. Byam, 1 Story, 296, 302 ; Rule 61. But Union Mutual Ins. Co. v. Commercial 
 
 see Commercial Mutual Marine Ins. Co. Mutual Marine Ins. Co., 2 Curt. 524; 
 
 v. Union Mutual Ins. Co., 19 How. 318, s. c. on appeal, as Commercial Mutual 
 
 323 ; Agawam Co. v. Jordan, 7 Wall. Marine Ins. Co. v. Union Mutual Ins. 
 
 583, 609 ; Webb v. Powers, 2 W. & M. Co. 19 How. 318, 319. 
 
 497,510; Meyers v. Busby, 32 Fed. R.G70. 8 Adams v. Adams, 21 Wall. 185. 
 
 8 See Story's Eq. PI. § 870. 9 Story's Eq, PI. §§ 30 with note, and 
 
 4 Brooks v. Byam, 1 Story, 296, 311. 856 ; Rule 32. 
 
 s Brown v. Pierce, 7 Wall. 205, 212 ; 
 Brooks i'. Byam, 1 Story, 296.
 
 216 ANSWERS AND DISCLAIMERS. [CHAP. X. 
 
 chinery " in violation and infringement of any rights of the plain- 
 tiff, or that they are using, or have made, or sold, or used any 
 machines not protected or covered by the proviso in the act of 
 Congress," it seems that they thereby presumptively admit in- 
 fringement. 10 An admission in an answer that the defendants had 
 made locks of the kind described in the patent sued upon, " is 
 satisfied, by assuming that the smallest number of locks were made 
 consistent with the use of that word in the plural, and with the 
 use by the defendants of any part of the patent which is valid." u 
 An admission that a deed bears a certain date does not estop the 
 respondent from showing that it was fraudulently antedated. 12 
 
 § 147. Impertinence and Scandal. — An answer should contain 
 no impertinence or scandal. 1 What constitute scandal and imper- 
 tinence has been explained in the chapter on Bills. 2 Usually 
 nothing is considered scandalous which is relevant or responsive 
 to the allegations of the bill. 3 But in an English case brought 
 by a clergyman, where the defendant included in a schedule of 
 accounts a charge for money paid by him for an order of filiation 
 of a bastard made upon the plaintiff, the court held the item, 
 although relevant, a proper subject of exception, because the 
 mode of bringing it forward was intended to drive the plaintiff 
 out of his parish. 4 It may be doubted whether so much respect 
 for the cloth would be shown by an American court. An 
 allegation that a previous decree was made " without a full 
 reading of the proofs in the cause, or a careful consideration of 
 the briefs of the counsel filed therein," and not " after full con- 
 sideration," is not scandalous ; for it contains no imputation upon 
 the court. 5 " Exceptions for impertinence are only allowed 
 when it is apparent that the matter excepted to is not material or 
 relevant, or is stated with needless prolixity. If it may be mate- 
 rial, the exception will not be allowed, as that would leave the 
 defendant without remedy, but the allegations excepted to will 
 
 10 Agawam Co. v. Jordan, 7 Wall. 583, 2 Sec § 68. 
 
 609. 3 Peck v. Peck, Mosely, 45 ; Woods 
 
 11 Mr. Justice Miller in Jones v. More- v. Morrell, 1 J. Ch. (N. Y.) 103, 106 ; 
 head, 1 Wall. 155, 165. But compare Fisher v. Owen, L. R. 8 Ch. D. 645, 653 ; 
 Troy Iron & Nail Factory v. Corning, 6 Story's Eq. PI. § 862. 
 
 Blatchf . 328, 336, 337. 4 Attorney-General v. Hewit, in Chanc. 
 
 12 Holbrook v. Worcester Bank, 2 Curt. July, 1801 ; cited in Cooper's Eq. PI. 319 ; 
 244. Story's Eq. PI. § 862. 
 
 § 147. > Story's Eq. PI. §§ 861-863 ; 6 Miller v. Buchanan, 5 Fed. R. 366. 
 Langdon v. Goddard, 3 Story, 13.
 
 § 148.] DISCOVERY. 217 
 
 be allowed to remain in the answer, and the effect thereof, if 
 found to be true, determined on the final hearing." 6 It has 
 been held that a short sentence inserted out of abundant caution 
 will not be expunged as impertinent. 7 Neither is new matter 
 not responsive to the bill, setting up an insufficient defense, the 
 proper subject of an exception for impertinence ; 8 although such 
 matter has been expunged by motion. 9 A demurrer to an answer 
 is not permitted. 10 Exceptions to answers for scandal and imper- 
 tinence are taken and disposed of in substantially the same man- 
 ner as exceptions to bills for the same reasons. 11 Exceptions for 
 impertinence should be filed and disponed of before exceptions 
 for insufficiency are filed. 12 
 
 § 148. Discovery. — Discovery, or answer under oath, which 
 was formerly one of the principal grounds of equitable juris- 
 diction, is now of little practical importance. For the statutes 
 of the United States, 1 as well as those of all of the individual 
 members of the American Union with which the writer has 
 any acquaintance, allow the full benefits of discovery to be ob- 
 tained by the oral examination of any party or person otherwise 
 interested in the cause on trial. Moreover, a recent amendment 
 to the equity rules provides that, " if the complainant, in his 
 bill, shall waive an answer under oath, or shall only require an 
 answer under oath with regard to certain specified interroga- 
 tories, the answer of the defendant, though under oath, except 
 such part thereof as shall be directly responsive to such inter- 
 rogatories, shall not be evidence in his favor, unless the cause be 
 set down for hearing on bill and answer only ; but may never- 
 theless be used as an affidavit, with the same effect as heretofore 
 upon a motion to grant or dissolve an injunction, or on any 
 other incidental motion in the cause ; but this shall not prevent 
 a defendant from becoming a witness in his own behalf under 
 section 3 of the act of Congress of July 2, 1804." 2 (U. S. R. S. 
 
 6 Deady, J., in Chapman v. School lf > Crouch v. Korr, 38 Fed. R. 549. 
 District No. 1, Deady, 108, 110. " See Rules 2(3 and 27 ; Hood v. In- 
 
 7 Desplaces v. Goris, 1 Edward's Ch. man, 4 J. Ch. (N. Y.) 437; Langdon v. 
 (N. Y.) 350. Goddard, 3 Story, 13 ; § 68. 
 
 8 Adams v. Bridgewater Iron Co., 6 ^ Patriotic Bank v. Bank of Washing- 
 Fed. R. 179. But see Ford v. Douglas, ton, 5 Cranch C. C. 602. 
 
 6 How. 143, 165. § 148. * U. S. R. S. § 858. 
 
 9 Armstrong v. Chemical National 2 Amendment of Decemher, 1871, to 
 Bank, 37 Fed. R. 466 ; Adams v. Bridge- Rule 41. See Woodruff v. Dubuque & S. 
 water Iron Co., 6 Fed. R. 179. C. R. R. Co., 30 Fed. R. 91.
 
 218 ANSWERS AND DISCLAIMERS. [CHAP. X. 
 
 Sec. 858.) Consequently, an answer under oath is now usually 
 waived by the complainant. 3 When no such waiver is made, 
 however, the old rule still prevails ; and the sworn statement by 
 the defendant in direct response to an allegation in the bill is 
 deemed to be true, unless contradicted by two witnesses, or a 
 single witness and corroborating circumstances. 4 Irresponsive 
 allegations are not evidence. 5 Neither are allegations upon 
 information and belief, 6 nor allegations sworn to positively, con- 
 cerning facts of which it is evident that the respondent can have 
 no personal knowledge. 7 The admissions of the defendant are 
 binding upon him ; and unless he can obtain leave to amend his 
 answers by withdrawing them, he cannot disprove them at the 
 hearing. 8 When discovery is required, the defendant must 
 answer every allegation in the bill which is material to the plain- 
 tiff's case, and an answer admitting which would not expose him 
 to a penalty, forfeiture, or criminal prosecution, or expose a 
 privileged communication. 9 " It is not a sufficient foundation of 
 exception that a fact charged in a bill is not answered, unless the 
 fact is material and might contribute to support the equity of the 
 plaintiff's case, and induce the court to give the relief sought by 
 the bill." 10 The former practice required that if a defendant 
 submitted to answer, he must in general answer fully ; and that 
 he could usually protect himself from a full discovery only by a 
 plea or demurrer to the objectionable part of the bill. 11 Now, 
 however, the Equity Rules provide that " the rule that if a de- 
 fendant submits to answer he shall answer fully to all the 
 matters of the bill, shall no longer apply in cases where he 
 might by plea protect himself from such answer and discovery. 
 And the defendant shall be entitled in all cases by answer to 
 insist upon all matters of defense (not being matters of abate- 
 
 3 See Slessinger v. Buckingham, 17 9 Cranch, 153, 161; Allen v. O'Donald, 
 Fed. R. 454, 456. 28 Fed. R. 17. 
 
 4 Clark's Executors v. Van Riemsdyk, 8 Gold & Silver Ore Separating Co. v. 
 9 Cranch, 153, 160 ; Union Bank of U. S. Disintegrating Ore Co., 6 Blatchf. 
 Georgetown v. Geary, 5 Pet. 99, 110 ; 307, 310. See Troy Iron & Nail Factory 
 Seitz v. Mitchell, 94 U. S. 580, 582 ; v. Corning, 6 Blatchf. 328, 336. 
 
 Vigel v. Hopp, 104 U. S. 441 ; Slessinger 9 Atwill v. Ferrett, 2 Blatchf. 39. 
 
 v. Buckingham, 17 Fed. R. 454, 456. 10 Chief Justice Taney in Hardeman 
 
 8 Sargent v. Earned, 2 Curt. 340 ; v. Harris, 7 How. 726. 
 
 Seitz v. Mitchell, 94 U. S. 580. u Hare on Discovery, pp. 247, 296, 297 
 
 6 Berry v. Sawyer. 19 Fed. R. 286 ; Story's Eq. PI. §§ 605, 606, 609, 816 
 Allen v. O'Donald, 28 Fed. R. 17. Mazarredo v. Maitland, 3 Madd. 66, 72 
 
 7 Clark's Executors v. Van Riemsdyk, v. Harrison, 4 Madd. 252.
 
 § 148.] DISCOVERY. 219 
 
 raent, or to the character of the parties, or matters of form) in 
 bar of or to the merits of the bill, of which he may be entitled to 
 avail himself by a plea in bar ; and in such answer he shall not 
 be compellable to answer any other matters than he would be 
 compellable to answer and discover upon filing a plea in bar and 
 an answer in support of such plea, touching the matters set forth 
 in the bill, to avoid or repel the bar or defense. Thus, for ex- 
 ample, a bona fide purchaser for a valuable consideration 
 without notice, may set up that defense by way of answer instead 
 of plea, and shall be entitled to the same protection, and shall 
 not be compellable to make any further answer or discovery of 
 his title than he would be in any answer in support of such 
 plea." n "A defendant shall be at liberty, by answer, to decline 
 answering any interrogatory, or part of an interrogatory, from 
 answering which he might have protected himself by demurrer ; 
 and he shall be at liberty so to decline, notwithstanding he shall 
 answer other parts of the bill from which he might have pro- 
 tected himself by demurrer." 13 If the plaintiff is the only 
 person who can enforce a penalty or forfeiture, and he waives it 
 in his bill, the defendant may be compelled to answer disclosing 
 his liability thereto. 14 There has been much controversy as to 
 whether the defendant to a bill demanding an account can be 
 obliged to give discovery as to the account when he answers 
 denying the equity of the bill and the complainant's right to an 
 account. 15 The better opinion seems to be that he can. Such 
 is the doctrine of Professor Langdell, 16 and of the last English 
 case upon the subject. 17 No discovery can be required of an 
 infant, 18 or other person under a disability ; 19 nor, it seems, of a 
 corporation, 20 or a public officer when sued in his official ca- 
 pacity. 21 But it has been held that, although a corporation can- 
 
 12 Rule 39. 19 Micklethwaite v. Atkinson, 1 Coll. 173. 
 
 13 Rule 44. 20 Union Bank of Georgetown v. Geary, 
 
 14 Lord Uxbridge v. Staveland, 1 Vos. 5 Pet. 99, 110; Wallace v. Wallace, 
 Sen. 56; Atwill v. Ferrett, 2 Blatchf. Halst. (N. J.) Dig. 173; Smith v. St. 
 39. Louis Mutual Life Ins. Co., 2 Tenn. Ch. 
 
 15 The authorities have been well col- 599 ; Burpee v. First National Bank, 5 
 lected by Chancellor Cooper in French v. Biss. 405. But see Kittredge v. Clare- 
 Rainey, 2 Tenn. Ch. 640. mont Bank, 3 Story, 590 ; s. c. 1 W. & M. 
 
 16 Langdell's Eq. PI. §§ 70-73. 245. 
 
 17 Elmer v. Creasy, L. R. 9 Ch. 69, 71. 21 Davison v. Attorney-General, 5 Price, 
 
 18 Copeland v. Wheeler, 4 Brown Ch. 398, note ; Attorney-General v. Lamhirth, 
 C. 256; Lucas ?:. Lucas, 13 Ves. 274; 5 Price, 386, 398; U. S. v. McLaughlin, 
 Daniell's Ch. Pr. (2d Am. ed.) 214. 24 Fed. R. 823.
 
 220 ANSWERS AND DISCLAIMERS. [CHAP. X. 
 
 not be compelled to answer under oath, it can be compelled to 
 answer, and to answer fully. 22 The defendant must answer spe- 
 cifically and categorically, distinguishing between matters within 
 his personal knowledge and those within his information and be- 
 lief. 23 If he asserts ignorance as to any matter, he must aver that 
 he is ignorant both of his own knowledge and as to information 
 and belief. 24 He cannot deny that he has no knowledge as to a 
 subject which the bill charges as a personal transaction in which 
 he took part. 25 This last rule, it has been said, applies to officers 
 of corporations. 26 If new officers have succeeded those in office 
 at the time when the matters charged are said to have occurred, 
 it is their duty, when called upon for discovery, to ascertain the 
 facts by searching the records of the corporation and by inquiry 
 of their predecessors. 27 It has been said that " a corporate 
 answer should be made by the principal officer of the corporation, 
 who should be able to admit or deny the facts charged and inter- 
 rogated about, or to state want of knowledge clearly and truly 
 as a reason for not doing it." 28 It is insufficient to deny any 
 " recollection or belief as to a transaction in which the defendant 
 is said to have been personally engaged." 29 " The defendant in 
 his answer must state the facts as they then are." 30 But where a 
 bill charged that the defendant would in future infringe a patent 
 as he was charged to have done before, it was held insufficient for 
 him to merely deny that he had done so since the trial of an 
 action at law which established the complainant's rights. 31 He 
 had also to answer as to his future intentions. 32 In drawing such 
 an answer, it is usual and often advantageous to interweave the 
 discovery witli a narrative of the transactions from the defend- 
 ant's point of view in a continuous statement, so that it will be 
 hard for the plaintiff to read as evidence the defendant's admis- 
 
 22 Hale v. Continental Life Insurance 27 Kittredge t\ Claremont Bank, 1 W. 
 Company, 16 Fed. R. 718 ; s. c. 20 Fed. & M. 244. 
 
 R 344. - s Wheeler, J., in Hale v. Continental 
 
 23 Brooks v. Byam, 1 Story, 296 ; Kit- Life Insurance Co., 16 Fed. R. 718, 719. 
 tredge v. Claremont Bank, 3 Story, 596; 29 Taylor v. Luther, 2 Sumner, 228. 
 
 s. c. 1 W. & M. 244. 80 Sir Thomas Plumer, V. C, in Knight 
 
 24 Brooks v. Byam, 1 Story, 296 ; Kit- v. Matthews, 1 Madd. 566. 
 
 tredge v. Claremont Bank, 1 W. & M. 244. 31 Poppenhusen v. N. Y. Gutta-Percha 
 
 25 Burpee v. First National Bank, 5 Comb Co., 4 Blatchf . 185 ; s. c. 2 Fisher, 
 Biss. 405. 74. 
 
 26 Burpee v. First National Bank, 5 32 Poppenhusen v. N. Y. Gutta-Percha 
 Biss. 405 ; Kittredge v. Claremont Bank, Comb Co., 4 Blatchf. 185 ; s. c. 2 Fisher, 
 1 W. & M. 244. 74.
 
 § 150.] FRAME OF ANSWER. 221 
 
 sions without also reading the latter's own explanation and 
 account of the controversy. 
 
 § 149. Proceedings to compel Answer. — The defendant must 
 file in the clerk's office on the rule-day next succeeding that of 
 entering his appearance, an answer to so much of the bill as he 
 does not cover by a plea or demurrer. In default thereof, unless 
 his time to answer has been enlarged, for cause shown by a judge 
 of the court, upon motion for that purpose, the bill may be 
 taken against him pro confesso. 1 When a plea or demurrer is 
 overruled, with leave to the defendant to answer within a certain 
 time, and he fails so to do, the bill may then also be taken pro 
 confesso. 2 Otherwise the plaintiff, if he requires any discovery or 
 answer to enable him to obtain a proper decree, is entitled to pro- 
 cess of attachment against the defendant to compel an answer, 
 and the defendant, when arrested upon such process, is not dis- 
 charged therefrom unless upon filing his answer, or otherwise 
 complying with such order as the court or judge thereof may 
 direct, as to pleading to or fully answering the bill, within a 
 period to be fixed by the court or judge, and undertaking to 
 speed the cause. 3 If the attachment is returned non est inventus, 
 a commission of rebellion will issue. 4 If this proves insufficient, 
 it will be followed by a writ of sequestration. 6 
 
 § 150. Frame of Answer. — An answer should be entitled in the 
 cause, so as to agree with the names of the parties as they appear 
 in the bill at the time the answer is filed. 1 It seems that the 
 defendant may not correct or alter the names of the parties as 
 they appear in the bill, and that if there is a mistake he must 
 correct it in the part following the title of the cause ; thus, " The 
 answer of the defendants, the Mayor, Aldermen, and commonalty 
 in the bill called the Mayor, Aldermen, and citizens of the city 
 of New York." 2 The answer should begin substantially thus: 
 " The answer of John Aber, one of the above-named defendants, 
 to the bill of complaint of the above-named plaintiff; " if the bill 
 has been amended after answer, "to the amended bill of com- 
 
 § 149. i Rule 18. See Chapter VI. 6 Smith's Ch. Pr. (2d ed. A. D. 1837) 
 
 2 Suydam v. Beals, 4 McLean, 12. 183-188. 
 
 « Rule 18. § 150. 1 Daniell's Ch. Pr. (5th Am. 
 
 « Boudinot v. Symmes, Wall. C. C. ed.)731. 
 
 139 ; Smith's Ch. Pr. (2d ed. A. D. 1837), 2 Attorney-General v. Worcester Cor- 
 
 183-186. poration, 1 C. P. Cooper, 18; Daniell's 
 
 Ch. Pr. (5th Am. ed.) 731.
 
 222 ANSWERS AND DISCLAIMERS. [CHAP. X. 
 
 plaint." 3 If two or more defendants join in the same answer, it 
 usually begins, " The joint and several answer ; " 4 unless they are 
 husband and wife, when it is " The joint answer " 5 but an answer 
 is not defective if put in by several as a joint answer merely. 6 
 When discovery is required, all of the defendants who join in an 
 answer must swear to the same. 7 When the same solicitor is 
 employed for two or more defendants, and separate answers are 
 filed, or other proceedings had by two or more defendants sepa- 
 rately, costs are allowed for such separate answers or other pro- 
 ceedings, unless a master, upon reference to him, certifies that 
 such separate answers and other proceedings were necessary or 
 proper, and ought not to have been joined together. 8 A female 
 defendant who has married since the filing of the bill usually 
 begins : " The answer of John Aber and Anna, his wife, lately 
 in the bill called Anna Brown, spinster," or widow, as the case 
 may be. 9 A title, " The several answer of John Peck, Esq., one 
 of the defendants to the bill of complaint of Anna Baines, alias 
 Green, assuming to herself the name of Anna Peck, as pretended 
 wife of John Peck, Esq., deceased, and of Anna Maria Green, 
 assuming to herself the name of Anna Maria Peck, as daughter 
 of the said John Peck, Esq., deceased," was held scandalous. 10 
 An answer by a person defending by guardian or next friend 
 should state that fact: " James Fifield by Edward Jennings, his 
 next friend." When an answer and another pleading are united, 
 it should so state : " The demurrer, plea, and answer of," &e. n 
 Next followed formerly a clause reserving to the defendant any 
 and all advantages that might be taken by exception to the bill. 12 
 This always was and still is useless, 13 although many practition- 
 ers still use it. Then comes the substantive part of the answer, 
 setting up the matters of affirmative defense and giving the dis- 
 covery required. 14 The answer usually closes with a general 
 traverse inserted out of abundant caution, denying the unlawful 
 combination charged in the bill, and all other matters therein 
 
 3 Daniell's Ch Pr. (5th Am. ed.) 731 ; 9 Daniell's Ch. Pr. (5th Am. ed.), 731. 
 
 Rigby v. Rigby, 9 Beav. 311, 313. 10 Peck v. Peck, Mosely, 45. 
 
 * Davis v. Davidson, 4 McLean, 136. « Daniell's Ch. Pr. (5th Am. ed.), 731 
 
 5 Daniell's Ch. Pr. (5th Am. ed.) 731. 12 Mitford's PI. ch. 2, § 2, part 3. 
 
 6 Davis v. Davidson, 4 McLean, 136. Story's Eq. PI. § 870. 
 
 7 Bailey Washing Machine Co. v. m Story's Eq. PI. § 870 ; Rules 39, 44. 
 Young, 12 Blatchf. 199. " Mitford's PL ch. 2, § 2, part 3. 
 
 8 Rule 62.
 
 § 151.] SIGNATURE AND OATH TO ANSWER. 223 
 
 contained. 15 In the answers of infants and other persons under 
 a disability, the reservation and general traverse have always 
 been deemed properly omitted. 16 The answer in such cases gen- 
 erally is that the infant knows nothing of the matter, and there- 
 fore neither admits nor denies the charges, but leaves the 
 plaintiff to prove them as he shall be advised, and throws himself 
 on the protection of the court. 17 But if such a defendant has 
 any substantive defence, he should plead the same. 18 
 
 § 151. Signature and Oath to Answer. — An answer must be 
 signed by the defendant making it ; even, it seems, when an 
 answer under oath has been waived, 1 unless he answer by guar- 
 dian, when the latter should sign it, 2 or unless an order has been 
 obtained dispensing with such signature on account of the de- 
 fendant's absence, or for some other reason. 3 A person answering 
 in a dual capacity need sign but once. 4 An answer by a cor- 
 poration must be under its corporate seal. 5 In such a case it is 
 advisable to have the seal attested by one of the corporate offi- 
 cers. 6 When an answer is made without oath, the signature of 
 the defendant should also be attested. 7 This is usually done by 
 his solicitor. 8 The answer, unless it is taken by commissioners, 
 should also be signed by counsel. 9 Unless an answer under oath 
 is waived in the bill, the defendant, if a natural person, must 
 swear; 10 or, "if conscientiously scrupulous of taking an oath, in 
 lieu thereof make solemn affirmation to the truth of the facts 
 stated by him." n The oath or affirmation may be taken before 
 a justice or judge of any court of the United States, or before a 
 commissioner appointed by a Circuit Court to take testimony or 
 depositions, or before a master in chancery appointed by a Cir- 
 
 15 Mitford's PI. ch. 2, § 2, part 3 ; 4 Anon ; 2 J. & W. 553. 
 
 Story's Eq. PI. § 870. 5 Haight v. Proprietors of the Morris 
 
 16 Story's Eq. PI. § 871. Aqueduct, 4 Wash. 601, 605; Darnell's 
 
 17 Chancellor Kent in Mills v. Dennis, Ch. Pr. (5th Am. ed.) 785, and note 2. 
 
 3 J. Ch. (N. Y.), 367, 368. 6 Daniell's Ch. Pr. (5th Am. ed.) 735, 
 
 18 Holden v. Hearn, 1 Beav. 445, 455 ; note 2. 
 
 Lane v. Hardwicke, 9 3eav. 148, 149. 7 Daniell's Ch. Pr. (5th Am. ed.) 738. 
 
 § 151. i Story's Eq. PL § 875; Davis v. 8 Daniell's Ch. Pr. (5th Am. ed.) 738. 
 
 Davidson, 4 McLean, 136; Bayley v. De 9 Davis v. Davidson, 4 McLean, 136; 
 
 Walkiers, 10 Ves. 441 ; Fulton Bank v. Story's Eq. PI. § 876. 
 
 Beach, 2 Paige (N. Y.), 307; Denison v. 10 Fulton Bank v. Beach, 2 Paige 
 
 Bassford, 7 Paige (N. Y.), 370. (N. Y.), 307; Daniell's Ch. Pr. (5th Am. 
 
 2 Anon ; 2 J. & W. 553 ; Daniell's Ch. ed.) 735. 
 
 Pr. (5th Am. ed.) 733. " Rule 91. See TJ. S. R. S. § 5013. 
 
 8 Story's Eq. PL § 875 ; v. Lake, 
 
 6 Ves. 171 ; v. Gwillim, 6 Ves. 285.
 
 224 ANSWERS AND DISCLAIMERS. [CHAP. X. 
 
 cuit Court, or before a judge of a court of a State or Territory ; " 
 or before a notary public, when acting within the limits of their 
 respective jurisdictions. 12 An answer can be verified without the 
 United States before commissioners appointed for that purpose ; 13 
 or probably before any secretary of legation or consular officer at 
 the post, port, place, or within the limits of his legation, consulate, 
 or commercial agency. 14 The following form of oath or affirmation 
 is given by Daniell in his valuable work on Chancery Practice : 
 " You swear, or solemnly affirm, that what is contained in this 
 your answer (or plea and answer), as far as concerns your own 
 act and deed, is true to your own knowledge, and that what 
 relates to the act and deed of any other person or persons, you 
 believe to be true." 15 When sworn to in a foreign country, it 
 seems that it must be " administered in the most solemn form 
 observed, by the laws and. usages " of that country. 16 Every 
 alteration and interlineation in the answer should be authenti- 
 cated by the initials of the officer who administers " the oath." 
 When the verification of an answer is in the form of an affidavit, 
 the name of the defendant making it must be subscribed at the 
 foot of the affidavit. When in the form of a certificate of the 
 officer administering the oath, the defendant's name should be 
 subscribed at the foot of the answer. 17 
 
 § 152. Motions to take Answers off the File. — When an an- 
 swer is in any respect irregular, 1 or is filed, by a person not 
 named as a defendant in the bill, 2 or is filed too late, it may 
 upon the plaintiff's motion be taken off the file. 3 This may also 
 be done when the paper purporting to be an answer is so evasive 
 that it is in fact no answer. 4 If it is taken off the file for an 
 error in form, the court may allow the same paper to be corrected, 
 and then filed anew. 5 By setting the cause down for a hearing 
 
 i 2 Rule 59. L.1876, ch 304. §152. * Bailey "Washing Machine Co. 
 
 13 Read v. Consequa, 4 Wash. 335. v. Young, 12 Blatchf . 199. 
 
 14 U. S. R. S. § 1750. But see Read 2 Putnam v. New Albany, 4 Biss. 365, 
 v. Consequa, 4 Wash. 335. 367. 
 
 15 2 Daniell's Ch. Pr. ch. 15, § 2, p. 270; 3 Allen v. The Mayor and Board of 
 Story's Eq. PI. § 872, note 4. Education of New York, 18 Blatchf. 
 
 ](i Read v. Consequa, 4 Wash. 335. 239. 
 
 17 Daniell's Ch. Pr. (5th Am. ed.) 743; 4 Tomkin v. Lethbridge, 9 Ves. 178; 
 
 Hathaway v. Scott, 11 Paige (N. Y.), Smith v. Searle, 14 Ves. 415. 
 
 173, 176 ; Pincers v. Robertson, 9 C. E. e Bailey Washing Machine Co. v. 
 
 Green (24 N. J. Eq.), 348. Young, 12 Blatchf. 199.
 
 § 153.] EXCEPTIONS FOR INSUFFICIENCY. 225 
 
 upon bill and answer, or by filing exceptions or the general repli- 
 cation, such a defect would be waived. 6 
 
 § 153. Exceptions for Insufficiency. — After an answer is filed 
 on any rule-clay, the plaintiff is allowed until the next rule- 
 day to file in the clerk's office exceptions thereto for insuffi- 
 ciency, and no longer, unless a longer time is allowed for the 
 purpose, upon cause shown to the court or a judge thereof; 
 and if no exceptions are filed thereto within that period, the 
 answer is deemed and taken to be sufficient. 1 The time may, 
 however, under extraordinary circumstances be abridged by the 
 court. 2 The court may, to avoid delay, allow the bill to be 
 amended, and exceptions to be filed at the same time to the 
 answer to the original bill ; requiring the defendant to at once 
 answer the amended bill and the exceptions. 3 Exceptions to an 
 answer for insufficiency can be filed after exceptions for im- 
 pertinence have been filed and disposed of. 4 It seems that, if a 
 plea is ordered to stand for an answer, without leave to except 
 being granted in the order, no exception for insufficiency can 
 be taken to so much of the answer as is covered by the plea; 5 
 and that where an answer is accompanied by a demurrer or plea 
 to the discovery, and the complainant excepts to the answer 
 before the other pleading has been disposed of, he thereby 
 admits the latter to be good, and, if set down for argument, it 
 may be stricken off the calendar. 6 In the latter case leave to 
 withdraw the exceptions may be given. 7 No exceptions for 
 insufficiency can be filed to the answer of an infant or other 
 person under a disability. 8 It has been held in courts not 
 Federal, that when an answer under oath is waived, no ex- 
 ceptions for insufficiency can be filed to the answer. 9 After 
 exceptions for insufficiency have been filed, no new exceptions 
 can regularly be added; 10 but leave to amend those on file 
 
 6 Fulton Bank v. Beach, 2 Paige See, however, Darnell v. Reyny, 1 Vern. 
 
 (N. Y.), 307; Glassington v. Thwaites, 344. 
 
 2 Russell, 458, 461. 7 Boyd v. Mills, 13 Ves. 85. 
 
 § 153. ' Rule 61. 8 Copeland v. Wheeler, 4 Brown, 
 
 2 Bead v Consequa, 4 Wash. 335. Ch. C. 256 ; Lucas v. Lucas, 13 Ves. 274; 
 
 8 Kittredge v. Claremont Bank, 3 Micklctliwaite ». Atkinson, 1 Collyer, 
 
 Story, 500. 173; Daniell's Oh. Pr. (5th Am. ed.) 169. 
 
 4 Patriotic Bank v. Bank of Washing- 9 M'Oormiek v. Chamberlin, 11 Paige 
 
 ton, 5 Cranch 0. C 602. (N. Y ). 543 ; Sheppard v. Akers, 1 Tenn. 
 
 & Sellon v. Lewen, 3 P. Wms. 239. Ch. 326. 
 
 6 Brownell v. Curtis, 10 Paige (N. Y), 10 Partridge v. Haycraft, 11 Ves. 570, 
 
 210, 211 ; Mitford's PI. ch. 2, § 2, part 3. 575. 
 
 15
 
 226 ANSWERS AND DISCLAIMERS. [CHAP. X. 
 
 may under special circumstances be obtained. 11 When defend- 
 ants answer separatelj', separate exceptions should be filed 
 to each .answer. 12 Exceptions to an answer for insufficiency 
 must be in writing, 13 and signed by counsel. 14 It seems that 
 (hey must specify that the answer excepted to is an answer to 
 the bill. 15 They should state the charges in the bill and the in- 
 terrogatory applicable thereto, to which the exceptionable part 
 of the answer should be addressed, and then state the terms 
 of that part of the answer verbatim, so that the court, without 
 searching the bill and answer throughout, may at once perceive 
 the ground of the exception, and ascertain its sufficiency. 16 An 
 exception to an answer, " because, in stating in the said answer 
 what he has been informed of by the said Byam, he does not say 
 whether he actually believes the same to be true," was said to 
 be irregular in form. 17 Such an objection, or any irregularity iu 
 the form of an exception for insufficiency, can be raised by a 
 motion to take the exception off the file. 18 By setting the ex- 
 ception down for a hearing, an objection for irregularity is 
 waived. 19 Where exceptions have been filed to an answer for 
 insufficiency, within the period prescribed, if the defendant do 
 not submit to the same and file an amended answer on the next 
 succeeding rule-day, the plaintiff should forthwith set them down 
 for a hearing on the next succeeding rule-day thereafter, before 
 a judge of the court, and should enter, as of course, in the 
 order-book an order for that purpose ; and if he do not so set 
 down the same for a hearing, the exceptions are deemed aban- 
 doned, and the answer deemed sufficient ; but the court or an}' 
 judge thereof, may, for good cause shown, enlarge the time for 
 filing exceptions or for answering the same, in his discretion, 
 upon such terms as he may deem reasonable. 20 It has been said 
 that to refer such exceptions to a master on a day not a rule-day 
 '• is to do what is not authorized by the rules, and, unless af- 
 firmed or cured ly some subsequent action of the court, is a 
 
 " Polder v. Bank of England. 10 Ves. 14 Yates v. Hardy, Jacob, 223. 
 284: Bancroft v. Wentworth, 10 Ves. 285 15 Earl of Lichfield v. Bond, 5 Beav. 
 
 v. ; Northcote v. Northeote, 1 Dickens, 513. 
 22. 16 Brooks v. Byam, 1 Story, 298, 303. 
 
 '2 Sydolph !•• Monkston, 2 Dickens, " Brooks v. Byam, 1 Story, 298, 303 
 609. 18 Yates v. Hardy, Jacob, 223; Wil- 
 
 13 Brooks r. Byam, 1 Story, 290 ; Yates liams v. Davies, 1 Sim. & S. 426. 
 v. Hardy, Jacob," 223 ; Woods v. Morrell, 19 Brooks v. Byam, 1 Story, 298, 303. 
 1 J. Ch. (N. Y.) 103. LU Rule 63.
 
 § 153.] EXCEPTIONS FOR INSUFFICIENCY. 227 
 
 nullity." 21 If, at the hearing-, the exceptions are allowed, the 
 defendant is bound to put in a full and complete answer thereto 
 on the next succeeding rule-day ; otherwise the plaintiff will, 
 as of course, be entitled to take the bill, so far as the matter of 
 such exceptions is concerned, as confessed, or at his election, he 
 may have a writ of attachment to compel the defendant to 
 make a better answer to the matter of the exceptions ; and the 
 defendant, when he is in custody upon such writ, cannot be 
 discharged therefrom but by an order of the court, or of a judge 
 thereof, upon his putting in such answer, and complying with 
 such other terms as the court or judge may direct. 22 If, upon 
 argument, the plaintiff's exceptions are overruled, or the answer 
 adjudged insufficient, the prevailing party is entitled to all 
 the costs thereby occasioned, unless otherwise directed by the 
 court, or the judge thereof, at the hearing upon the excep- 
 tions. 23 An exception for insufficiency may be allowed in part 
 and overruled in part. 24 Where an exception for insufficiency 
 was sustained, and a further answer put in, which the plaintiff 
 deemed still insufficient, by the former English practice he had 
 three weeks wherein to refer the same to a master upon the 
 old exceptions ; otherwise the further answer was deemed suffi- 
 cient. 25 If the further answer was found insufficient, the de- 
 fendant was required to put in a third answer ; and if that too 
 was found insufficient, lie was committed to the Fleet, and 
 examined upon interrogatories. 26 When an order was obtained 
 after answer, allowing the plaintiff to amend his bill, and re- 
 quiring the defendant to answer the amendments and the excep- 
 tions to the answer to the original bill together; upon such 
 answer the plaintiff could only file new exceptions for a failure 
 to fully answer the amendments. 27 A further answer is in every 
 respect similar and is considered a part of the original answer. 
 If, therefore, it repeats any matter contained in a former answer, 
 the repetition, unless it varies the defence in point of substance, 
 or is otherwise necessary, is considered as impertinent. 28 
 
 21 La Vega v. Lapsley, 1 Woods, 428, » Smith's Ch. Pr. (2d cd. A. D. 183G), 
 432, Woods, J. 285, 286. 
 
 22 Rule Hi. 27 Partridge v. Haycraft, 11 Ves. f.70, 
 
 23 Rule 65. 581 ; Smith's Ch. Pr. (2d ed. A. 1). ISM), 
 
 24 East India Co. v. Campbell, 1 Ves. 2SG. 
 
 Sen. 217; Hoffmann v. Postill, L. R. 4 Ch. 2S Story's Eq. PI. § 868. See Gier 
 App. 678. v. Gregg, 4 MeLean, 203. 
 
 » Smith's Ch. Pr. (2d ed. 18CG), 285.
 
 228 ANSWERS AND DISCLAIMERS. [CHAP. X. 
 
 § 154. Supplemental Answers. — A supplemental answer is 
 filed to bring to the attention of the court some fact which was 
 not inserted in the original answer through mistake or igno- 
 rance, 1 or which has occurred subsequently to the filing of the 
 same. 2 They can only be filed by leave of the court, which may 
 impose terms upon the applicant. 3 The rules regulating supple- 
 mental answers of the former class will be found in the chapter 
 upon Amendments. Those of the second class have been little 
 considered in the books. Their functions may also be performed 
 by cross-bills. 4 
 
 § 155. Disclaimers. — A disclaimer is a pleading by which the 
 defendant renounces all claim to property which the plaintiff 
 seeks in his bill to obtain. 1 It is said that it is distinct in its 
 substance from an answer, although sometimes confounded with 
 one. 2 It must, however, in most cases be accompanied by an 
 answer, for where a defendant has been made a party by mis- 
 take, having had an interest with which he has parted, the 
 plaintiff may require an answer sufficient to ascertain what the 
 facts are, and to whom he has transferred his interest. 3 More- 
 over, a defendant, although he may disclaim an interest, cannot 
 disclaim a liability. 4 The only cases in which a disclaimer with- 
 out an answer is sufficient seem to be those where the bill simply 
 alleges that the defendant claims an interest in the property in 
 question without specifying the claim. 5 Under very special cir- 
 cumstances, a disclaimer may be withdrawn, and an answer filed 
 setting up a claim. 6 Where a disclaimer is made, and it appears 
 that the defendant was made a party without apparent reason, 
 the bill will be dismissed with costs. 7 Otherwise, a decree may 
 be entered without costs against the defendant and all claiming 
 under him since the filing of the bill. 8 The plaintiff should not 
 file a replication to a disclaimer alone. 9 When the disclaimer is 
 
 § 154. * Smith v. Babcock, 3 Sumner, 3 Story's Eq. PI. § 838. See Ellsworth 
 
 683; Williams v. Gibbes, 20 How. 535; v. Curtis, 10 Paige (N. Y.), 105. 
 
 Caster v. Wood, Baldwin, 289 ; Suydam v. 4 Glassington v. Thwaites, 2 Russ. 458 ; 
 
 Truesdale, 6 McLean, 459. Graham v. Coape, 9 Simons, 93, 102 ; 
 
 2 Kelsey v. Hobby, 16 Pet. 269, 277 ; 8. c. 3 Myl. & Cr. 638. 
 
 Talmageu. Pell, 9 Paige (N.Y.), 410, 413. 5 Story's Eq. PI. § 838. See Graham v. 
 
 3 Smith v. Babcock, 3 Sumner, 583 ; Coape, 9 Simons, 93, 102 ; s. c. 3 Myl. 
 Caster v. Wood, Baldwin, 289. & Cr. 638. 
 
 4 Kelsey v. Hobby, 16 Pet. 269, 277. 6 Story's Eq. PI. § 841. 
 § 155. 1 Mounsey v. Burnham, 1 Hare, i Story's Eq. PI. § 842. 
 
 15. 8 Story's Eq. PI. § 842. 
 
 2 Story's Eq. PL § 838. 9 Story's Eq. PI. § 842.
 
 § 155.] DISCLAIMERS. 229 
 
 insufficient it may be stricken off the file upon motion, or excep- 
 tions to it for insufficiency, if filed, will be sustained. 10 A dis- 
 claimer may be accompanied by a plea, answer, or demurrer, or 
 all of these, provided that each refers to a separate part of the 
 bill. 11 If a disclaimer and answer by the same defendant are 
 inconsistent, the matter will be taken most strongly against the 
 defendant upon the disclaimer. 12 The following is a form of a mere 
 disclaimer : " The disclaimer of Richard Flagg, the defendant, 
 to the bill of complaint of Robert Aber, complainant. This 
 defendant, saving and reserving to himself [here follow the 
 usual general reservation in an answer], saith, that he doth not 
 know that he, this defendant, to his knowledge and belief, ever 
 had, nor did he claim or pretend to have, nor doth he now claim, 
 any right, title, or interest of, in, or to the estates and premises, 
 situate [describing them], in the said complainant's bill set 
 forth, or any part thereof ; and this defendant doth disclaim all 
 right, title, and interest to the said estate and premises in 
 [naming their situation], in the said complainant's bill men- 
 tioned, and every part thereof." A disclaimer concludes in the 
 same way as an answer. 13 
 
 10 Graham v. Coape, 9 Simons, 93, 102 ; 12 Mitford's PI. ch. 2, § 2, part 2. 
 b. c. 3 Myl. & Cr. G38. 13 Story's Eq. PI. § 844, note 6. 
 
 » Story's Eq. PI. § 839 ; Mitford's PI. 
 ch. 2, § 2, part 3.
 
 230 REPLICATIONS. [CHAP. XI. 
 
 CHAPTER XL 
 
 REPLICATIONS. 
 
 § 156. Definition and History of Replications. — A replication 
 is a pleading by which the plaintiff puts in issue the matters 
 pleaded in a defendant's answer or plea. No replication can be 
 filed to a demurrer. 1 Replications were formerly of two kinds, 
 general and special. 2 A general replication consists of a general 
 denial of the truth of the defendant's plea or answer, and of the 
 sufficiency of the matter alleged therein to bar the plaintiff's suit, 
 together with an assertion of the truth and sufficiency of the bill. 3 
 A special replication sets up new matter in avoidance of a sub- 
 stantive defence contained in the answer or plea. 4 To this the 
 defendant was obliged to file a rejoinder, giving the discovery 
 required in it. 5 This might then be succeeded by a sur- 
 rejoinder and a rebutter. 6 Special replications and their con- 
 sequences were, on account of the inconvenience therefrom 
 resulting, almost obsolete by the time of Lord Eldon. 7 A 
 special replication to an answer is forbidden by the Equity 
 Rules, which provide that "no special replication to any answer 
 shall be filed. But if any matter alleged in the answer shall 
 make it necessary for the plaintiff to amend his bill, he may 
 have leave to amend the same with or without the payment of 
 costs, as the court or a judge thereof may in his discretion 
 direct." 8 It has been held, that a special replication is equally 
 improper to a plea. 9 Allegations of new matter in a replication 
 will therefore be disregarded, and the pleading, if allowed to 
 remain upon the file, will be given no more effect than if it were 
 simply general. 10 The proper course, however, is for the de- 
 
 §156. l Mason v. Hartford, Provi- 6 Mitford's PI. ch. 3; Story's Eq. PI. 
 
 dence, & Fishkill R. R. Co., 10 Fed. R. § 878. 
 
 334. ' Mitford's PI. ch. 3 ; Story's Eq. PI. 
 
 2 Mitford's PI. ch. 3. § 878. 
 
 3 Story's Eq. PI. § 878. 8 Rule 45. 
 
 4 Story's Eq. PI. § 878. 9 Mason v. Hartford, Providence & 
 s Mitford's PI. ch. 3; Story's Eq. PI. Fishkill R. R. Co, 10 Fed. R. 334. 
 
 § 878. l0 Vattier v. Hinde, 7 Pet. 252, 273;
 
 § 157.] WHEN A REPLICATION SHOULD BE FILED. 231 
 
 fendant to move the special replication off the file. 11 After the 
 disuse in England of special replications, it was customary for 
 the plaintiff to sue out and serve upon the defendant a subpoena 
 to rejoin. 12 This practice never prevailed generally in the 
 United States; 13 and the Equity Rules provide that "in all cases 
 where the general replication is filed, the cause shall be deemed 
 to all intents and purposes at issue, without any rejoinder or 
 other pleading on either side." 14 
 
 § 157. When a Replication should be Filed. — The equity rules 
 provide that if the plaintiff does not reply to any plea, or set it 
 down for argument on the rule-day when the same is filed, or on 
 the next succeeding rule-day, he shall be deemed to admit the 
 truth and sufficiency thereof, and his bill shall be dismissed as of 
 course, unless a judge of the court shall allow him further time 
 for the purpose. 1 Whenever the answer of the defendant is not 
 excepted to, or is adjudged or deemed sufficient, the plaintiff 
 must file the general replication thereto on or before the next 
 succeeding rule-day thereafter. 2 If the plaintiff omits or refuses 
 to file such replication within the prescribed period, the de- 
 fendant is entitled to an order, as of course, for a dismissal of the 
 suit ; and the suit is thereupon dismissed, unless the court, or a 
 judge thereof, shall, upon motion for cause shown, allow a repli- 
 cation to be filed nunc pro tunc, the plaintiff submitting to speed 
 the cause and to such other terms as may be directed. 3 It has 
 been held that such an order may be entered by the clerk with- 
 out any application to the judge. 4 No replication need or should 
 be filed when the cause is set down for hearing upon bill and 
 answer. 5 Where there are several defendants a replication 
 should be filed within the prescribed time after one of them has 
 filed an answer or plea, although the others may not have done 
 so. 6 It is the safer practice to file a separate replication after 
 the other answers have come in. 7 The court may grant leave to 
 withdraw a replication, and amend, or have the cause set down 
 
 Duponti v. Mussy, 4 Wash. 128 ; Wren v. 2 R u i e 6(j, 
 
 Spencer OptiealManuf. Co., 18 Off. Gaz. 8 Rule 66. 
 
 857. 4 Robinson v. Satterlee, 3 Saw. 101. 
 
 11 Mason v. Hartford, Providence & 5 Reynolds v. Crawfordsville First Nat. 
 Fishkill R. R. Co., 10 Fed. R. 334. Rank. 112 U. S. 405; Gaines v. Agnelly, 
 
 12 Story's Eq. PI. § 879. 1 Woods, 238. 
 
 18 Story's Eq. PI. § 879, note 5. 6 Coleman v. Martin, Blatchf. 291. 
 
 14 Rule 66. T See Smith's Ch. Pr. (2d Eng. ed.) 
 
 § 157. l Rule 38. vol. i. p. 336.
 
 232 EEPLICATIONS. [CHAP. XL 
 
 for a hearing upon bill and answer. 8 It has been held that the 
 pendency of a motion affecting the plea or answer will excuse 
 the plaintiff from replying before the motion has been decided. 9 
 Only a party whose plea or answer has received no proper reply 
 can have a bill dismissed for a failure to comply with these rules. 10 
 The court exercises great liberality in allowing a replication to 
 be filed nunc pro tunc, n or in allowing one filed too late to 
 stand. 12 The taking of testimony by the defendant, or any other 
 proceeding taken by him in the cause, would probably be held 
 a waiver of his right to have a bill dismissed for want of a repli- 
 cation. 13 An objection upon this ground cannot be raised for 
 the first time upon appeal. 14 After a cause has been heard upon 
 bill and answer the court will rarely allow a replication to be 
 filed. 15 
 
 § 158. Effect of a Replication. — The complainant, by filing a 
 general replication, admits the sufficiency as regards discovery, 1 
 but not as a defense, 2 of the plea or answer to which it is filed, 
 and denies every allegation in the plea or answer which is not 
 directly responsive to the bill. 3 
 
 § 159. Frame of a Replication. — The full title of the cause, as 
 it stands at the time the replication is filed, must be set forth in 
 the heading of the replication, but onby the names of such of the 
 defendants as have appeared should be inserted or referred to in 
 the body. If a defendant's name has been misspelt by the 
 plaintiff, and such defendant has corrected the same by his an- 
 swer, but the plaintiff has not afterwards amended his bill with 
 respect to such name, the correction should be shown in the 
 title of the replication ; in the body of the replication, however, 
 
 8 Rogers v. Goore, 17 Ves. 130; Brown Blatchf. 26; Reynolds i». Crawfordsville 
 v. Ricketts, 2 J. Cli. (N. Y.) 425; Dan- First Nat. Bank, 112 U. S. 405. 
 
 iell's Oh. Pr. (2d Am. ed.) 479 ; Ibid. " Clements v. Moore, 6 Wall. 299 ; 
 (3d Am. ed.) 830. Fretz v. Stover, 22 Wall. 198. 
 
 9 Allis v. Stowell, 5 Fed. R. 203. 15 Bullinger v. Mackey, 14 Blatchf. 
 
 10 Chicago & Alton R. R. Co. v. Union 355; Peirce v. West's Executors, Pet 
 Rolling Mill Co., 109 U. S. 702, 717. C. C. 351. 
 
 11 Pierce v. West's Executors, Pet. § 158. > Story's Eq. PI. § 877 ; Hughes 
 C. C. 351 ; Sayles v. Erie Railway Co., v. Blake, 6 Wheat. 453. 
 
 2 N. J. L. J. 212 ; Fischer v. Hayes, 6 Fed. 2 Rule 33 ; Matthews v. Balance & G. 
 
 ft. 76; s. c. 19 Blatchf. 26; Jones v. Manuf. Co., 2 Fed R. 232. But see 
 
 Brittan, 1 Woods, 607. Myers v. Dorr, 13 Blatchf . 22 : Theberath 
 
 12 Fischer v. Hayes, 6 Fed. R. 76 ; s. c. v. Ruhher & Celluloid Harness Trimming 
 19 Blatchf. 26. Co., 5 Bann. & A. 584. 
 
 13 Jones v. Brittan, 1 Woods, 667 ; 3 Humes v. Scruggs, 94 U. S. 22. 
 Fischer v. Hayes, 6 Fed. R. 76 ; s. c. 19
 
 § 159.] FRAME OF A REPLICATION. 233 
 
 the correct name only should be inserted. When any defendant 
 has died since the bill was filed, the words " since deceased " 
 should follow his name in the title, but his name should be 
 omitted in the body of the replication. If the plaintiff joins 
 issue with all the defendants their names need not be repeated 
 in the body; it is sufficient in such case to designate them as 
 " all the defendants ; " but if he does not join issue with all, the 
 names of the defendants must be set out in the body. 1 If the 
 defendant has filed both a plea and answer, the replication should 
 refer to both. 2 The body of a general replication is substantially 
 as follows : " This repliant, saving and reserving to himself all 
 and all manner of advantage of exception, which may be had 
 and taken to the manifold errors, uncertainties, and insufficiencies 
 of the answer of the said defendants for replication thereunto, 
 saith, that he doth and will aver, maintain, and prove his said 
 bill to be true, certain, and sufficient in the law to be answered 
 unto by the said defendants, and that the answer of the said 
 defendants is very uncertain, evasive, and insufficient in law, to 
 be replied unto by this repliant ; without that, that any other 
 matter or thing in the said answer contained, material or effectual 
 in the law to be replied unto, and not herein and hereby well 
 and sufficiently replied unto, confessed or avoided, traversed or 
 denied, is true ; all which matters and things this repliant is 
 ready to aver, maintain, and prove as this honorable court shall 
 direct, and humbly prays as in and by his said bill he hath al- 
 ready prayed." 3 A replication should be signed by the plaintiff's 
 solicitors. The signature of counsel is unnecessary. 4 A repli- 
 cation, like all other papers in a suit in equity, should contain no 
 scandal or impertinence. Proceedings thereon on account of its 
 containing scandalous or impertinent matter are similar to those 
 upon an answer of that character. In Queen Elizabeth's time, 
 the plaintiff, for putting in too long a replication, was fined ten 
 pounds, and imprisoned, and a hole made through the replication, 
 which was hung about his neck, while he was obliged to go thus 
 carrying it from bar to bar. 5 
 
 § 159. i Daniell's Ch.Pr. (4th Am.ed.) * Story's Eq. PL § 881 ; Darnell's Cli. 
 
 830,831. Pr. (4th Am. ed.) 830. 
 
 8 Niccol v. Wiseman, 2 Vern. 40. 5 Mihvanl v. Welden, 8 Eliz. li. B. fo. 
 
 8 Story's Eq. PI. § 878, note 4. 678 ; Tothill, 101.
 
 234 AMENDMENTS. [CHAP. XII. 
 
 CHAPTER XII. 
 
 AMENDMENTS. 
 
 §160. Amendments in General. — "In reference to amend- 
 ments of equity pleadings the courts have found it impracticable 
 to lay down a rule that would govern all cases. Their allowance 
 must, at every stage of the cause, rest in the discretion of the 
 court ; and that discretion must depend largely on the special 
 circumstances of each case. It may be said, generally, that in 
 passing upon applications to amend, the ends of justice should 
 never be sacrificed to technical rules of practice. Undoubtedly 
 great caution should be exercised where the application comes 
 after the litigation has continued for some time, or when the 
 granting of it would cause serious inconvenience or expense to 
 the opposite side." 1 The Revised Statutes provide that the court 
 " may at any time permit either of the parties to amend any de- 
 fect in the process or pleadings, upon such conditions as it shall, 
 in its discretion and by its rules, prescribe." 2 States, 3 charities, 4 
 infants, 5 idiots, and lunatics, are allowed to amend in cases where 
 courts might hesitate to grant the privilege to others. 
 
 § 161. When Bills can be Amended. — The equity rules regu- 
 late the amendment of bills as follows: "The plaintiff shall be 
 at liberty, as a matter of course, and without payment of costs, 
 to amend his bill, in any matters whatsoever, before any copy 
 has been taken out of the clerk's office, and in any small matters 
 afterwards, such as filling blanks, correcting errors of dates, mis- 
 nomer of parties, misdescription of premises, clerical errors, and 
 generally in matters of form. But if he amend in a material 
 point, as he may do of course, after a copy has been so taken, 
 before any answer or pica or demurrer to the bill, he shall pay 
 
 § 1G0. * Mr. Justice Harlan in ITarrlin 4 President of St. Mary Magdalen's 
 
 v. Boyd, 113 U. S. 750, 761. See Nellis College v. Sibthorp, 1 Russ. 154. 
 
 v. Pennoek Manuf. Co., 38 Fed. R. 379. 6 Serle v. St. Eloy, 2 P. Wms. 386; 
 
 2 U. S. R. S. § 954. Pritchard v. Quinchant, Ambler, 147 ; 
 
 3 Rhode Island v. Massachusetts, 13 Story's Eq. PI. §§ 59, 892. 
 Pet. 23.
 
 § 161.] WHEN BILLS CAN BE AMENDED. 235 
 
 to the defendant the costs occasioned thereby, and shall, without 
 delay, furnish hira with a fair copy thereof, free of expense, with 
 suitable references to the places where the same are to be in- 
 serted. And if the amendments are numerous, he shall furnish 
 in like manner to the defendant a copy of the whole bill as 
 amended ; and if there be more than one defendant, a copy shall 
 be furnished to each defendant affected thereby." 1 For the 
 purposes of this rule, an answer which has been held or admitted 
 to be insufficient is, it seems, considered as no answer. 2 It has 
 been held that, after an insufficient answer, the complainant can- 
 not amend by leaving' out the defendant's name, and thus discon- 
 tinuing the suit without costs. 3 After an answer, or plea, or 
 demurrer is put in, and before replication, the plaintiff may, upon 
 motion or petition, without notice, obtain an order from any 
 judge of the court to amend his bill on or before the next suc- 
 ceeding rule-day, upon payment of costs or without payment of 
 costs, as the court or a judge thereof may in his discretion direct. 
 But after replication filed, the plaintiff shall not be permitted to 
 withdraw it and to amend his bill, except upon a special order 
 of a judge of the court, upon motion or petition, after due notice 
 to the other party, and upon proof by affidavit that the same is 
 not made for the purpose of vexation or delay, or that the matter 
 of the proposed amendment is material, and could not with 
 reasonable diligence have been sooner introduced into the bill, 
 and upon the plaintiff's submitting to such other terms as may 
 be imposed by the judge for speeding the cause. 4 This rule 
 applies only where leave to amend is asked before a demurrer or 
 plea is allowed. 5 " If the plaintiff so obtaining any order to 
 amend his bill after answer, or plea, or demurrer, or after repli- 
 cation, shall not file his amendments or amended bill, as the case 
 may require, in the clerk's office on or before the next succeed- 
 ing rule-day, he shall be considered to have abandoned the same, 
 and the cause shall proceed as if no application for any amend- 
 ment had been made." 6 " No special replication to any answer 
 shall be filed. But if any matter alleged in the answer shall 
 make it necessary for the plaintiff to amend his bill, he may have 
 
 § 161. ! Rule 28. * Rule 2t). 
 
 2 Daniell's Ch. Pr. (2d Am. ed.) 47.3. 5 National Bank v. Carpenter, 101 U. S. 
 
 See Chase v. Dunham, 1 Paige (N. Y.), 572. 5G7, 568. 
 
 ;i Chase v. Dunham, 1 Paige (N. Y.), ° Kule 30. 
 572.
 
 236 AMENDMENTS. [CHAP. XII. 
 
 leave to amend the same with or without the payment of costs, 
 as the court or a judge thereof may in his discretion direct." 7 
 Such an amendment must be asked for whenever the plaintiff 
 wishes to avoid and not merely deny a defense in the answer 
 which has not been anticipated in the original bill. 8 Thus, where 
 an answer to a bill for an injunction against the infringement of 
 a patent set up a license, the complainant was not allowed to 
 prove the abandonment of the license because the bill contained 
 no allegation to that effect. 9 If upon a hearing any demurrer or 
 plea is allowed, the court may, in its discretion, upon motion of 
 the plaintiff, allow him to amend his bill upon such terms as it 
 shall deem reasonable. 10 When the plaintiff wishes to amend 
 the bill after replication by the addition of new facts or charges, 
 the regular practice is for him to apply for leave to withdraw 
 his replication and amend. 11 An amendment may be allowed by 
 the court at any time even after a final decree. 12 
 
 § 162. Form and Effect of Amendment of a Bill. — "Wherever 
 leave to amend the bill is granted, it is more proper to file an 
 amended bill than to interline the original bill, particularly if 
 some of the defendants had before answered that bill." x " The 
 rule is that the amended bill should state no more of the original 
 bill than may be necessary to introduce, and to make intelligible, 
 the new matter, winch should alone constitute the chief subject 
 of the bill. The reasons for this rule are obvious. Not only is 
 the incorporating of the old bill into the amended bill unneces- 
 sary, but it increases the costs, and exposes the defendants, par- 
 ticularly those who have answered the original bill, to the trouble 
 of searching out and separating the old from the new matter, at 
 the peril of having their answer excepted to if any mistake should 
 happen, and all the matter of the amended bill should not be 
 answered." 2 Accordingly, an amended bill which was obnoxious 
 to this rule was held impertinent. 3 It is the better practice for 
 the counsel to sign the amendments, if they are not as to matters 
 of mere form. 4 The amendment of a bill is usually considered 
 
 " Pule 45. § 162. J Peirce v. West's Executor, 3 
 
 8 Wilson v. Stolley, 4 McLean, 275 ; Wash. 354, 355. 
 Piatt v. Vattier, 9 Pet. 405. 2 Peirce v. West's Executor, 3 Wash, 
 
 a Wilson v. Stolley, 4 McLean, 275. 354, 355. 
 
 10 Rule 35. 3 Peirce v. West's Executor, 3 Wash. 
 
 " Daniell's Ch. Pr. (2<1 Am . ed ) 479. 354, 355. 
 " Tremaine v. Hitchcock, 23 Wall. 518. * Daniell's Ch. Pr. (5th Am. ed.) 313.
 
 § 163.] WHAT AMENDMENTS TO BILLS MAY BE MADE. 237 
 
 as an admission of the sufficiency of the answer as regards dis- 
 covery; 5 but an amendment which merely brings in a new de- 
 fendant does not have this effect; 6 and the court may, to prevent 
 delay, entertain a motion to amend a bill in equity at the same 
 time that exceptions to the answer are filed, and may then re- 
 quire the defendant to answer the amendments and the excep- 
 tions together. 7 An amendment of a bill, at least before answer, 
 will not, it seems, dissolve an injunction previously granted. 8 It 
 is, however, the usual and the safer practice to have a clause 
 inserted in the order stating that the amendment may be made 
 without prejudice to the injunction. 9 Unless otherwise provided 
 in the order, it seems that an amendment of a bill will discharge 
 all contempt proceedings previously instituted. 10 
 
 § 163. What Amendments to Bills may be made. — " An amend- 
 ment should rarely if ever be permitted where it would materially 
 change the very substance of the case made by the bill, and to 
 which the parties have directed their proofs." l Thus, where a 
 bill was filed for the enforcement of a judgment lien upon 
 specified property filed against certain specified defendants, an 
 amendment was refused after a hearing, when it was sought to 
 seek discovery and relief against all purchasers of both the prop- 
 erty referred to in the original bill and other property of the 
 judgment debtor. 2 A bill to restrain the infringement of a 
 patent cannot be amended so as to allege that the title to the 
 patent is in a different person from the one who in the original 
 bill is alleged to hold it. 3 But such a bill may be amended so as 
 to set up a reissue of the original patent, which occurred before 
 the original bill was filed, but was not mentioned therein. 4 Such 
 a bill may also be amended so as to include claims for damages 
 and profits due previous owners of the patent, who have assigned 
 them to the complainant. 5 The allegation that certain machines 
 
 6 Smith's Ch. Pr. (2d Ens?, erl ) -307. § 163. > Mr. Justice Harlan in Hardin 
 
 6 Taylor v. Wrench, 9 Ves. 315. v. Boyd, 113 U. S. 756, 761. 
 
 7 Kittredge v. Claremont Bank, 3 Story, 2 Snead v. McCoull, 12 How. 407, 422. 
 590. 3 Goodyear v. Bourn, 3 Blatchf. 2HG. 
 
 8 Read v. Consequa, 4 Wash. 174, 180 ; See Ilylands v. LaTouche, 2 Bligh, 586. 
 Smith's Ch. Pr. (2d Eng. ed.) 306; Dan- 4 The Tremolo Patent, Tremaine v. 
 iell's Ch. Pr. (5th Am. ed.) 424, 425. Hitchcock, 23 Wall. 618; Reay v. Ray- 
 
 9 Read v. Consequa, 4 Wash. 174 ; Dan- nor, 19 Fed. R. 308; Reay v. Berlin & 
 iell's Ch. Pr. (5th Am. ed.) 424, 425. Jones Envelope Co., 30 Fed. R. 448. But 
 
 lu Smith's Ch. Pr. (2d Eng. ed.) 305; see Jones v. Barker, 11 Fed. R. 5'.t7. 
 Gray '.Campbell,! R.&M.323; Symonds 5 New York Grape Su>rarCo. >: Buffalo 
 v. Duchess of Cumberland, 2 Cox, 411. Grape Sugar Co., 20 Fed. R. 5U5.
 
 23S AMENDMENTS. [CHAP. XII. 
 
 alleged to be used in violation of a patent were infringements 
 when made, ina}^ also be added by amendment. 6 It was held that 
 a bill for a new trial of an action for the price of stock alleged 
 to have been sold the defendant, could not be changed by 
 amendment so as to charge that the defendant held the stock in 
 trust for the complainant. 7 It is unsettled whether a bill for 
 discovery can be amended so as also to pray relief. 8 It was held 
 that a bill filed against persons in their individual capacity cannot 
 be amended so as to sue them as officers of a corporation. 9 A 
 bill filed b}' several creditors praying the sale of their debtor's 
 land in one State, and the satisfaction of their claims out of the 
 proceeds of such sale, cannot be changed by amendment so as to 
 pray relief to one against another of the plaintiffs, in respect to 
 the receipt by the latter of the proceeds of the sale of other land 
 of the same debtor situated in another State, and sold under a 
 decree in another suit in another court. 10 A bill by the Land 
 Company of New Mexico to enforce an executory contract by 
 the defendant Smoot for the sale of an interest in land of which 
 the defendant Elkins had the legal title, and which it was alleged 
 that Smoot was about to assign to the defendant Butler with 
 Elkins's connivance, was held not amendable " by omitting all 
 the parties but Elkins, and proceeding against him upon the 
 theory that complainant has acquired Smoot's interest by an 
 absolute and unconditional transfer.'' 11 A bill to set aside a 
 sheriff's sale may be amended so as to add a tender of the pur- 
 chase-price and a prayer for a redemption of property. 12 A bill 
 to set aside a contract for the sale of land as obtained by fraud 
 may be amended by the addition of an alternative pra} r er for the 
 specific performance of the contract. 13 A bill to remove a cloud 
 upon the title to land may be amended so as to seek the enforce- 
 ment of trusts relating to the same property. 14 It has been said, 
 
 6 Reay v. Raynor, 19 Fed. R. 308. 10 Smith v. Woolfolk, 115 U. S. 143, 
 
 7 Oglesby v. Attrill, 14 Fed. R. 214. 148. 
 
 8 See Horsburg v. Baker, 1 Pet. 232 ; H Land Co. of New Mexico v. Elkins, 
 Butterworth v. Bailey, 15 Ves. 358 ; Hild- 20 Fed. R. 545. 
 
 yard v. Cressy, 3 Atk. 303; Crow v. Tyr- 12 Graffam r. Burgess, 117 U. S. 180. 
 ell, 2 Madd. 397 ; Jackson v. Strong, 13 Hardin v. Boyd, 113 U. S. 756, dis- 
 
 1 McClel. 245; Lonsada v. Templer, 2 tinguishing Shields v. Barrow, 17 How. 
 
 Russ. 565; Daniell'a Ch. Pr. (2d Am. ed.) 136. 
 463-465. u Partee v. Thomas, 11 Fed. R. 769. 
 
 9 Tyler t<. Galloway, 13 Fed. R. 477. See also Neale v. Neales, 9 Wall. 1 ; Bat- 
 But see Womersley v Merritt, L. R. 4 Eq. tie v. Mutual Life Ins. Co., 10 Blatchf. 
 6U5. 417 ; Burgess v. Graffam, 10 Fed. R. 216.
 
 § 104] ADDITION OF MATTER SUBSEQUENT. 239 
 
 that where the bill originally sets out one agreement which it 
 seeks to enforce, and the answer admits the execution of another 
 agreement of a similar character, but with provisions different 
 from those alleged in the bill, the plaintiff may amend, abandon- 
 ing the agreement first pleaded by him, and obtain the enforce- 
 ment of that admitted by the defendant ; but that he cannot, 
 while still praying the enforcement of the agreement as set out 
 by him, amend so as to seek, in case he fail in proving that, an 
 enforcement of the one admitted in the answer. 15 It was held 
 that a creditor's bill, filed to obtain the appointment of a receiver 
 of the property of a city, and the application by him of its assets 
 to the satisfaction of its debts, could not be amended so as to 
 seek relief against a receiver and back-tax collector, appointed 
 by a subsequent statute of the State to collect the city's assets. 1 * 5 
 Great liberality is allowed as to amendments which strike out 
 parties 17 or bring in new parties, 18 except as to bills for discovery, 
 to which in England no new parties could be added. 19 A bill 
 filed by a married woman can almost always be amended by the 
 addition of the name of a next friend when necessary. 20 A bill 
 filed in behalf of one's self and others may be amended by strik- 
 ing out the invitation to others to join, provided none of them 
 have come in; 21 and a bill filed in one's own name may be 
 amended by the addition of words sufficient to make it a bill in 
 behalf of a class. 22 A bill filed against a defendant as executor 
 may be amended, so as to charge him as administrator of the 
 same person. 23 In an English case, a bill in behalf of a charity 
 was changed by amendment into an information. 24 
 
 § 164. Amendment by Pleading Matters subsequent to the Filing 
 of the Bill. — The general rule is that nothing which has oc- 
 curred since the filing of a bill can be added to it by amend- 
 ment. 1 Such matters, when admissible, should ordinarily be 
 
 15 Linrlsay v. Lynch, 2 Sch. & Lef. 1, 9. Good v. Blewitt, 13 Ves. 307, 401 ; Attor- 
 
 16 Meriwether v. Garrett, 102 U. S. 472, ney-General t\ Newcombe, 14 Ves. 1. 6; 
 &02- Reese River Silver Mining Co. r. Atwell, 
 
 « Conolly v. Taylor, 2 Pet. 556 ; Dwight L. R. 7. Eq. 347. 
 
 v. Humphreys, 3 McLean, 101. ^ Randolph v. Barrett, 16 Pet. 138. 
 
 18 Fisher v. Rutherford, Baldwin, 188; 24 President of St. Mary Magdalen Col- 
 Patterson v. Stapler, 7 Fed. R. 210. lege v. Sibthorp, 1 Russ. 154. 
 
 19 Marquis Cholmondeley v. Lord Clin- § 164. » Wray v. Hutchinson, 2 Mvl. 
 ton, 2 Meri. 71. & K. 235; Mason ,-. Hartford, Provi- 
 
 2J Douglas v. Butler, Fed. R. 228. dence, & Fishkil! R R. Co., 10 Fed. I!. 
 
 21 Yates >: Arden, 5 Cranch C. C. 526. 334; Copen v. Flesher, 1 Bond, 440; 
 
 22 Richmond v. Irons, 121 U. S. 27; Lyster v. Stickney, 12 Fed. R. G09.
 
 240 AMENDMENTS. [CIIAP. XII. 
 
 introduced by a supplemental bill. 2 It was held incompetent to 
 amend a bill, stating that certain notes and mortgages were 
 executed under a threat by the defendant that he would kill the 
 complainant if they were not executed, and paid at their matur- 
 ity, by adding the allegation, " that in pursuance of such threat 
 the defendant did, subsequently to the commencement of this suit, 
 take the life of the original complainant." 3 Such a murder does 
 not add to the complainant's cause of action, although it might 
 be put in evidence as tending to prove the original duress. 4 
 An amendment therefore speaks as of the date of the original 
 bill ; and an amendment alleging the requisite difference of 
 citizenship in the present time is sufficient to establish the 
 jurisdiction of the court. 5 A bill may perhaps be amended 
 before answer, demurrer, or plea, by alleging new matter that 
 has occurred since it was first filed. 6 And it has been held 
 that where a plaintiff has, at the time of filing his original bill, 
 an inchoate light, to perfect which a formal act alone is ne- 
 cessary, and such formal act is not performed till afterwards; as 
 where an executor files a bill before probate, and subsequently 
 proves the testament, 7 or the next of kin files a bill to protect 
 the personal estate of an intestate and subsequently procures her 
 appointment as administratrix, 8 or a foreign administrator files a 
 bill before obtaining ancillary letters of administration, and such 
 letters are subsequently issued to him; 9 the introduction of 
 the fact by amendment will be permitted. 10 It has been also 
 held in England that the *' defendant, when he puts in his answer, 
 must state the facts as they then are ; and if circumstances 
 are then introduced in the answer which occurred subsequent 
 to the filing of the bill, the plaintiff must be allowed to make 
 amendments to the bill, so as to show that such new circum- 
 stances mentioned in the answer are not of the color he repre- 
 
 2 See Chapter XIV. Wms. 348; Bradford v. Felder, 2 M'Cord 
 
 3 Lyster v. Stickney, 12 Fed. R. 609, (S. C). Ch. 170. 
 
 610. 9 Swatzel v. Arnold, Woolw. 383. 
 
 4 Lyster v. Stickney, 12 Fed. R. 609. Contra, Mason v. Hartford, Providence, 
 
 5 Birdsall v. Perego, 5 Blatchf. 251. & Fishkill R. R. Co., 10 Fed. R. 304. 
 
 6 Story's Eq. PI. § 885 ; Candler v. 10 Daniell's Ch. Pr. (2d Am. ed.) 460, 
 Pettit, 1 Paige (N. Y.), 168; Ogden v. 461; Swatzel v. Arnold, Woolw. 383; 
 Gibbons, Halst. N. J. Dig. 172. Humphreys v. Humphreys, 3 P. Wms. 
 
 7 Belloat v. Morse, 2 Hayw. (N. C) 348. Contra, Mason v. Hartford, Provi- 
 157; Daniell's Ch. Pr. (2d Am. ed.) 460. dence, & Fishkill R. R. Co., 10 Fed. R. 
 
 8 Humphreys v. Humphreys, 3 P. 334.
 
 § 165.] PROCEEDINGS UPON AN AMENDED BILL. 241 
 
 sents them, and so as to obtain a complete answer as to such 
 circumstances." n 
 
 § 165. Proceedings upon an Amended Bill. — When the amend- 
 ment merely brings in new parties defendant, they alone need be 
 served with a new subpoena. 1 If, however, a bill is substan- 
 tially amended by the addition of new charges, according to 
 the English practice a subpoena to answer the amendments had 
 to be sued out and served upon all the defendants. 2 Where the 
 bill is amended before answer or plea, no matter how trivial the 
 amendment may be, the defendant may demur to it, although a 
 demurrer to the original bill has been overruled. 3 If, however, a 
 defendant has answered the original bill, he cannot, without obtain- 
 ing leave to withdraw his first answer, demur, plead, or answer to 
 any more than the new matter ; unless the amendments virtually 
 make a new case. 4 For if the answer which still remains upon 
 the record applies to any part of the amended bill, it will overrule 
 a general demurrer. 5 Where the amendments seek to introduce 
 new matter which is properly the subject of a supplemental bill, 
 the defendant must raise that objection by demurrer, 6 plea, or 
 answer. 7 Otherwise, the objection will be waived. 8 The equity 
 rules provide, that " In any case where an amendment shall be 
 made after answer filed, the defendant shall put in a new 
 answer or supplemental answer on or before the next succeeding 
 rule-day after that on which the amendment, or amended bill 
 is filed, unless the time is enlarged or otherwise ordered by a 
 judge of the court ; and upon his default, the like proceedings 
 may be had as in cases of an omission to put in an answer." 9 An 
 answer to an amended bill is impertinent if it contains any 
 matter which was pleaded in the answer to the bill before 
 amendment. 10 It seems to have been the English rule that an 
 answer to an amended bill might set up an entirely new defense 
 inconsistent with that in his former answer. 11 
 
 11 Sir Thomas Plumer, V. C, in Knight Register, 33, 60; Atkinson v. Han way, 
 
 v. Matthews, 1 Madd. 566. 1 Cox Eq. 360; Ellice v. Goodson, 3 M. 
 
 § 165. l Longworth v. Taylor, 1 Mc- & C. 653; Ritchie v. Aylwin, 15 Ves. 79. 
 Lean, 514 ; Angerstein v. Clarke, 1 Ves. 5 Ellice v. Goodson, 3 M. & C. 653. 
 
 Jr. 250; Skeffington v. , 4 Ves. 66. 6 Brown v. Higden, 1 Atk. 291. 
 
 2 Cooke v. Davies, T. & R. 309 ; Bram- 7 Wray v. Hutchinson, 2 M. & K. 235. 
 ston v. Carter, 2 Simons, 458. See Ken- 8 Archbishop of York v. Stapleton, 2 
 dall v. Beckett, 1 Russ. 152. Atk. 136. 
 
 3 Bos.inquet v. Marsham, 4 Simons, 9 Rule 46. 
 
 573 ; Bancroft v. Warden, 2 Dickens, 672. 10 Gier v. Gregg, 4 McLean, 202. 
 
 * Keene v. Wheatley, 9 American Law n Daniell's Ch. Pr. (2d Am. ed.) 468; 
 
 16
 
 242 AMENDMENTS. [CHAP. XII. 
 
 § 166. Amendments of Demurrers, Pleas, and Replications. — The 
 court may allow a demurrer to be amended as to matters of form, 1 
 and also in substance by narrowing 2 its extent, and otherwise. 
 When a substantial amendment of a demurrer is allowed, it is 
 customary to give the plaintiff leave to amend his bill at the same 
 time. 3 An amendment of a plea, except as to a matter of form, 4 
 is less frequently allowed ; and only upon an application in which 
 the court must be told precisely what the amendment is to be, 
 and how the slip happened which it is to correct. 5 In such a case, 
 the defendant is usually given a very short time within which 
 to amend. 6 The amendment of a replication will almost always 
 be allowed. 7 
 
 § 167. Amendment of Answers. — The equity rule affecting 
 the amendment of answers is as follows : " After an answer is 
 put in, it may be amended, as of course, in any matter of form, 
 or by filling up a blank, or correcting a date, or reference to 
 a document, or other small matter, and be resworn, at any time 
 before a replication is put in, or the cause set down for hearing 
 upon bill and answer. But after replication, or such setting 
 down for hearing, it shall not be amended in any material 
 matters, as by adding new matters, facts, or defenses, or quali- 
 fying or altering the original statements, except by special 
 leave of the court, or of a judge thereof, upon motion and cause 
 shown, after due notice to the adverse party, supported, if re- 
 quired, by affidavit ; and in every case where leave is so granted, 
 the court or the judge granting the same may, in his discretion, 
 require that the same be separately engrossed, and added as a 
 distinct amendment to the original answer, so as to be distin- 
 guishable therefrom." 1 The principles upon which the courts 
 proceed in allowing such amendments is thus stated by Judge 
 Story. " In mere matters of form, or mistakes of dates, or ver- 
 bal inaccuracies, courts of equity are very indulgent in allowing 
 amendments. But when application is made to amend an answer 
 
 citing Bolton v. Bolton, MS. See also 207 ; Atwill v. Ferrett, 2 Blatchford, 39, 
 
 Trust & Fire Insurance Co v. Jenkins, 49. 
 
 8 Paiire (N. Y.), 589. * U. S. R. S. § 954. 
 
 § 166. l U. S. R. S. § 954. 5 Story's Eq. PI. § 895. See Giant 
 
 2 Gregg v. Legh, 4 Madd. 193, 207 ; Powder Co. v. Safety Nitro Powder Co., 
 Atwill r.' Ferrett, 2 Blatchf. 39, 49 ; Baker 19 Fed. R. 509. 
 
 >: Mellish, 11 Ves. 70; Story's Eq. PI. 6 Story's Eq. PI. § 895. 
 
 § 894. t DanielTs Ch. Pr. (4th Am. ed.) 831. 
 
 3 Gregg v. Legh, 4 Maddock, 193, § 167. » Rule GO.
 
 S 1671 AMENDMENT OF ANSWERS. 2-43 
 
 v -I 
 
 in material facts, or to change essentially the grounds taken in the 
 original answer, courts of equity are exceedingly slow and re- 
 luctant in acceding to it. To support such applications, they re- 
 quire very cogent circumstances, and such as to repel the notion 
 of any attempt of the party to evade the justice of the cause, 
 or to set up new and ingeniously contrived defenses or subter- 
 fuges. When the object is to let in new facts and defenses 
 wholly dependent upon parol evidence, the reluctance of the court 
 is greatly increased : since it has a natural tendency to encourage 
 carelessness and indifference in making answers, and leaves 
 much room for the introduction of testimony manufactured for 
 the occasion. But when the new facts sought to be introduced 
 are written papers or documents, which have been omitted by 
 accident or mistake, there the same reason does not apply in 
 its full force ; for such papers and documents cannot be made 
 to speak a different language from that which originally belonged 
 to them. The whole matter rests in the sound discretion of 
 the court." 2 "It seems to me, that, before any court of equity 
 should allow such amended answers, it should be perfectly sat- 
 isfied that the reasons assigned for the application are cogent 
 and satisfactory ; that the mistakes to be corrected, or the 
 facts to be added are made highly probable, if not certain ; that 
 they are material to the merits of the case in controversy ; that 
 the party has not been guilty of gross negligence ; and that the 
 mistakes have been ascertained, and the new facts have come to 
 the knowledge of the party, since the original answer was put 
 in and sworn to. Where the party relies upon new facts which 
 have come to his knowledge since the answer was put in, 
 or where it is manifest that he has been taken by surprise, or 
 where the mistake or omission is manifestly a mere inadvertence 
 and oversight, there is generally less reason to object to the 
 amendment, than there is, where the whole bearing of the facts and 
 evidence must have been well known before the answer was 
 put in." 3 An amendment of an answer changing the character of 
 the defense will rarely be allowed after the court has rendered an 
 opinion adverse to the position originally taken by the defendant. 4 
 
 2 Smith v. Babcock, 3 Sumner, 583, 4 Calloway v. Dobson, 1 Brock. 110. 
 586. See Walden v. Bodley, 14 Pet. 150 ; 
 
 3 Smith v. Babcock, 3 Sumner, 583, Hamilton v. Nevada G. & S. Min. Co., 
 586. 33 Fed. R. 562, 568.
 
 244 AMENDMENTS. [CHAP. XII. 
 
 The defendant will rarely be allowed to withdraw an admission 
 which he has made. 5 Leave to amend will be denied when the 
 complainant proves by affidavit that the new matter sought to 
 be introduced is false. 6 Ordinarily, leave to amend an answer 
 will be denied when the defendant knew of the facts which 
 he wishes to introduce, at the time his original answer was 
 drawn ; " or might have then discovered them by the exercise 
 of reasonable diligence. 8 An omission due to a mistake 
 of law cannot ordinarily be cured by amendment. 9 The court 
 may refuse to allow an amendment Avhich would introduce an 
 unconscientious defense, such as the statute of limitations, 10 
 the statute of frauds, 11 or that a contract made by a com- 
 plainant corporation was not authorized by its charter. 12 When 
 the proposed amendment is trivial the answer may be removed 
 from the file, altered, resworn to, and refiled ; 13 but if it is of 
 any length, it is customary to file a supplemental answer set- 
 ting it forth. 14 Leave to withdraw an answer and demur will 
 very rarely be granted. 15 
 
 § 168. Practice in obtaining Leave to Amend. — The application 
 for leave to amend must be in writing, stating the new matter 
 which the applicant desires to introduce by amendment, and 
 must be supported by an affidavit, stating the reason why this 
 matter was not included in the original pleading. 1 Where the 
 former pleading was verified, oath must be made to the truth 
 of the proposed amendments. 2 Where the proposed amendment 
 consists of matters disclosed b}* documentary evidence, the 
 documents themselves must be produced, if possible. 3 The 
 
 5 Ruegles v. Eddy, 11 Blatchf. 524. 13 Bailey Washing Machine Co. v. 
 
 « Hicks v. Otto, 17 Fed. R. 539. Young, 12 Blatchf. 199. 
 
 7 India Rubber Comb Co. v. Phelps, 14 Dolder ». Bank of England, 10 Ves. 
 8 Blatchf. 85; Webster Loom Co. v. Hig- 284, 285; Daniell's Ch. Pr. (5th Am. ed.) 
 gins, 13 Blatchf. 349 ; Cross v. Morgan, 779, 780. 
 
 6 Fed. R. 241 ; Suydam v. Truesdale, 6 15 Phelps v. Elliott, 30 Fed. R. 396. 
 
 McLean, 459. § 168. * Snead v. M'Coull, 12 How. 
 
 8 India Rubber Comb Co. w. Plielps, 407, 422 ; National Bank v. Carpenter, 
 8 Blatchf. 85; Webster Loom Co. v. Hig- 101 U. S. 567, 568; Wells v. Wood, 10 
 gins, 13 Blatchf. 349. Ves. 401 ; Nabob of the Carnatic v. East 
 
 9 Webster Loom Co. v. Higgins, 13 India Co., 1 Ves. Jr. 374, 385; Rodgers v. 
 Blatchf. 349; Cross v. Morgan, 6 Fed. R. Rodgers, 1 Paige (N. Y.), 424; Daniell's 
 241. Ch. Pr. (5th Am. ed.) 781. 
 
 w Cock v. Evans, 9 Yerg. (Tenn.) 287. 2 Rodgers v. Rodgers, 1 Paige (N. Y.), 
 
 " Cook v. Bee, 2 Tenn. Ch. 344. 424. 
 
 12 Third Avenue Savings Bank v. Di- 3 Churton v. Frewen, L. R. 1 Eq. 238; 
 
 mock, 9 C. E. Green (24 N. J. Eq.), 26. Daniell's Ch. Pr. (5th Am. ed.) 781.
 
 § 168. PKACTICE IN OBTAINING LEAVE TO AMEND. 245 
 
 court may impose terms as a condition precedent to amendment ; 
 for example, a disclosure of the names of the witnesses whom 
 the party expects to call to prove the new matter. 4 The order 
 allowing the amendment should state the new matter to be in- 
 serted. 5 If the amended pleading states new matter not allowed 
 by the order, it may be stricken from the file. 6 The court upon 
 appeal will disregard an amended pleading filed without leave, 7 
 unless the other party has treated it as valid, when he cannot 
 raise the objection for the first time upon appeal. 8 When both 
 parties have conducted the case as if the pleadings contained 
 certain allegations therein omitted, an amendment inserting 
 such allegations may be allowed at almost any stage of the 
 cause. 9 It seems that the Supreme Court will not reverse a 
 decree for an error in refusing permission to make an amend- 
 ment ; 10 certainly not unless the proposed amendment appears 
 upon the record. 11 It has been said that a decree will not be 
 reversed for an error in allowing an amendment. 12 The Su- 
 preme Court will not allow a pleading to be amended upon 
 appeal to it, 13 except by consent. 14 It has been held, however, 
 that a Circuit Court has power to allow an amendment to a 
 pleading when hearing an appeal from a District Court. 15 
 
 4 Caster v. Wood, 1 Bald. 289. » National Bank v. Carpenter, 101 
 
 6 Daniell's Ch Pr. (5th Am. ed.) 410. U. S. 567, 508. 
 
 6 Strange v. Collins, 2 V. & B. 163, 107. 12 Chapman v. Barney, 129 U. S. 077, 
 
 7 Terry v. McLure, 103 U. S. 442. 081. 
 
 8 Clements v. Moore, 6 Wall. 299. « Pacific Railroad of Mo. v. Ketchum, 
 
 9 Tremaine v. Hitchcock, 23 Wall. 95 U. S. 1. 
 
 518. 14 Kennedy v. Georgia State Bank, 8 
 
 10 National Bank v. Carpenter, 101 How. 580. 
 U. S. 507, 568. is Warren v. Moody, 9 Fed. R. 673.
 
 246 CROSS-BILLS. [CHAP. XIII. 
 
 CHAPTER XIII. 
 
 CROSS-BILLS. 
 
 § 169. Definition and Origin of Cross-Bills. — A d'OSS-bill is a bill 
 filed by a defendant in a suit in equity against one or more of the 
 other parties, in order to obtain either discovery of facts in aid 
 of his defence, or complete relief to all parties as to the mat- 
 ters charged in the original bill. 1 It was borrowed, through the 
 canon, from the reeonventio of the later civil law; 2 and from 
 it is derived the counterclaim of code-pleading. 3 It was origi- 
 nally used chiefly for the purpose of set-off and discovery, 
 which modern statutory enactments have made it now possible 
 to obtain in a simpler way. 
 
 § 170. When a Cross-Bill should be Filed. — A cross-bill is filed by 
 one of the defendants to a suit in equity either for his own pro- 
 tection, or by the direction of the court at the hearing, if the 
 pleadings are then insufficient to enable it to determine the 
 rights of all the parties sufficiently to make a complete decree 
 upon the subject-matter of the suit. 1 This latter case most 
 frequently happens when persons in opposite interests are co- 
 defendants. Although a defendant can by his answer obtain 
 the benefit of any defense he may have against the plaintiff's 
 claim, he can, except in a ver}' few cases, obtain no relief 
 against the latter in the same suit beyond what results neces- 
 sarily from the denial of the prayer of the original bill. 2 " If 
 the facts which a defendant wishes to set up destroy the plain- 
 tiff's apparent cause of action, they constitute a defense, and 
 should be set up by answer or plea; but if they only furnish 
 a reason why the court should make a decree depriving the 
 
 § 1G9. i Mr. Justice Nelson in Ayres Field v. Schieffelin, 7 J. Ch. (N. Y.) 
 
 v. Carver, 17 How. 591, at page 595. 250. 
 
 2 Story's Eq. PL § 402 ; Langdell's 2 Carnochan v. Christie, 11 Wheat. 
 Eq. PI. §§ 152, 154. 446 ; Ford v. Douglas, 5 How. 143 ; Chapin 
 
 3 See Brande v. Gilchrist, 18 Fed. R. v. Walker, 6 Fed. R. 794 ; Brande v. Gil- 
 465. christ, 18 Fed. R. 465 ; Denver & R. G. 
 
 § 170. ! Langdell's Eq. PI. § 124 ; Ry. Co. v. Denver, S. P. & P. R. Co., 17 
 Dauicll's Ch. Pr. (5th Am. ed.) 1550; Fed. R. 867.
 
 § 171] WHEN A CKOSS-BILL SHOULD NOT BE FILED. 247 
 
 plaintiff of his cause of action, they must be set up by a 
 cross-bill; and in the latter case the defendant's answer to the 
 original bill should strictly contain nothing but discovery." J 
 Where the plaintiff's right depends upon an instrument or con- 
 veyance which is not void, but merely voidable on account of 
 fraud or otherwise, the defendant can in most cases only set 
 up the facts showing its invalidity by a cross-bill. 4 In a suit 
 to set aside a contract, the defendant cannot have the contract 
 enforced unless he files a cross-bill. 5 It has been held that a 
 discharge in bankruptcy must be pleaded in a cross-bill. 6 There 
 are very few cases 7 in which a court can give one defendant 
 relief against another, unless the former files a cross-bill. 8 No 
 party is obliged to file a cross-bill unless the court orders him to 
 do so. Otherwise, he may seek by an independent bill the relief 
 which he desires. 9 A cross-bill may be filed at any time before 
 the final hearing if not at any time before the final decree. 10 
 
 § 171. When a Cross-Bill should not be Piled. — There are two 
 important classes of cases in which the court gives relief to the 
 defendant without a cross-bill. Suits for an account, in which, 
 if it finally appears that the balance is in favor of the defendant, 
 the court will give him a decree for the sum found to be due to 
 him; 1 and bills for the specific performance of contracts, in 
 which, if the parties differ as to the terms of the contract, and 
 that question is decided in the defendant's favor, the court will 
 compel the plaintiff to perform the contract thus established. 2 
 
 3 Langdell's Eq. PI. § 155. (N. Y.), 263; Langdell's Eq. PI. §§ 155, 
 
 * Ford v. Douglas, 5 How. 143 ; Lang- 156. See § 172. 
 
 dell's Eq. PI. § 131 ; Jacobs v. Richards, 8 Langdell's Eq. PL §§ 155, 156 ; Tal- 
 
 18 Beav. 300 ; Beddoes v. Pugh, 26 Beav. bot v. McGee, 4 Monroe (Ky.), 375, 379; 
 
 407, 416, 417; Holderness v. Rankin, 2 Veach v. Rice, 131 U. S. 293. 
 
 De Gex, F. & J. 258; Eddleston v. Col- 9 Washburn & Moen Manuf. Co. v. 
 
 lins, 3 DeGex, M. & G. 1, 16. But see Scutt, 22 Fed. R. 710. 
 
 Dayton v. Melick, 27 N. J. Eq. (12 C. E. 1° Neal v. Foster, 34 Fed. R. 496; 
 
 Green) 362; Pitts v. Powledge, 56 Ala. Rogers v. Reissner, 31 Fed. R 592. 
 
 147; Kennedy v. Green, 3 My. & K. 699, § 171. 1 Clarke v. Tipping, 4 Beav. 588 ; 
 
 718; Eyry v. Hughes, 2 Ch. D. 148; Toulmin v. Reid, 14 Beav. 499 ; Jervis v. 
 
 Osborne v. Barge, 30 Fed. R. 805. Berridge, L. R. 8 Ch. 357 ; Campbell v. 
 
 5 Meissner v. Buck, 28 Fed. R. 161 ; Campbell, 4 Halst. Eq. (N. J.) 740; Little 
 Carnochan v. Christie, 11 Wheaton, 446, v. Merrill, 62 Me. 328. 
 
 447. 2 Fif e „. Clayton, 13 Ves. 546 ; Stapyl- 
 
 6 BanqueFranco-Egyptienne u.Brown, ton i* Scott, 13 Ves. 425; Bradford v. 
 24 Fed. R. 106, 107. Union Bank of Tennessee. 13 How. 57; 
 
 7 Smith v. Woolfolk, 115 U. S. 143, Northern Railroad v. Ogdensburg & Lake 
 148 ; Chamley v. Lord Dunsany, 2 Sch. & Champlain R. R. Co., 18 Fed. R. 815. 
 Lef. 690, 718; Conry v. Caulfield, 2 Ball But see s. c. 20 Fed. R. 347. 
 
 & Beatty, 255 ; Elliott v. Pell, 1 Paige
 
 248 CROSS-BILLS, [chap. XIII. 
 
 But these exceptions illustrate the rule; for they proceed dis- 
 tinctly upon the theory that the court only entertains such bills 
 upon the condition that the plaintiff will consent to the same 
 justice being rendered to the defendant that he asks for himself; 
 and formerly this consent was required to be expressly given in 
 the bill. 3 So, when a question had been fully litigated between 
 a plaintiff and one defendant, and it appeared that the latter 
 was liable, not to the former, but to a co-defendant, who was 
 himself liable to the plaintiff to the same extent, the court has 
 allowed a decree in favor of the latter defendant against the 
 other without the filing of any cross-bill. 4 " When the decision 
 of a controversy between a plaintiff and two defendants raises 
 an incidental and collateral question between the co-defendants, 
 the court will sometimes dispose of the latter by means of a 
 reference to a master, and thus save the expense of a separate 
 suit, 5 and the same course has been taken when it was impos- 
 sible to give the plaintiff the relief to which he was entitled 
 without first deciding a question between co-defendants." 6 
 " When the right claimed by a defendant consists simply in 
 excluding the plaintiff from the right asserted by the latter, of 
 course there is no occasion for a cross-bill. Therefore, when a 
 bill is filed by a mortgagor against a mortgagee for redemption, 
 if the defendant can show that the plaintiff is not entitled to re- 
 deem, he can obtain the benefit of a foreclosure without filing a 
 cross-bill for the purpose ; for the dismissal of a bill to redeem 
 upon its merits is itself a foreclosure." 7 So a defendant, claim- 
 ing under a patent which the plaintiff claims is an infringement of 
 one held by him, ma} r obtain a decree declaring the plaintiff's pat- 
 ent void without filing a cross-bill, and if he file one for such a 
 purpose it may be dismissed. 8 It has been said that where an orig- 
 inal bill seeks to enforce an equitable title against several defend- 
 ants, it is improper for a defendant to file a cross-bill seeking the 
 enforcement of a title paramount against his co-defendants. 9 It 
 
 3 Langdell's Eq. PI. § 122 ; Clarke v. 5 Hood v. Clapham, 19 Beav. 90. See 
 Tipping, 4 Beav. 588 ; Toulmin v. Reid, Elliott v. Pell, 1 Paige (N. Y.), 263. 
 
 14 Beav. 505 ; Kennington v. Houghton, 6 Langdell's Eq. PI. § 125. 
 
 2 Y. & C. N. R. 630. 7 Langdell's Eq. PI. § 123. See Hilton 
 
 4 La Touclie v. Lord Dunsany, 1 v. Barrow, 1 Ves. Jr. 284. 
 
 Schoales & Lefroy 137, 166, 167; s. c. 8 U. S. R. S. § 4918; Lockwood v. 
 
 as Chamley v. Lord Dunsany, 2 Schoales Cleaveland, 6 Fed. R. 721 ; Foster v. 
 
 & Lefroy, 690, 718 ; Langdell's Eq. PI. Lindsay, 3 Dill. 127. 
 
 § 125. 9 Ayres v. Carver, 17 How. 591, 593.
 
 § 171.] WHEN A CROSS-BILL SHOULD NOT BE FILED. 249 
 
 was held, where a bill was filed by one tenant in common of a 
 mortgage against the two others, who had bought in separate par- 
 cels the mortgaged property, the complainant seeking to recover 
 from them his share of the purchase-money, that a cross-bill 
 could not be filed by one defendant against the other to recover 
 a balance due him "resulting from the price severally paid and to 
 be paid by them, as compared with the respective amounts " of 
 their interests in the mortgage. 10 Where a bill was filed against 
 the stockholders of an insolvent corporation to collect out of 
 their unpaid subscriptions the amount of a judgment against it, 
 a cross-bill filed by one who had paid a larger proportion of 
 his subscription than the rest, praying for an accounting and 
 that the others be compelled to pay the judgment, was held 
 bad upon demurrer. 11 Where a bill was filed by a remainder-man 
 under a will, claiming that certain provisions of the will estab- 
 lishing prior estates to his own were invalid, and praying that 
 the trustees appointed by the will convey the property devised, 
 either to him, or to the heirs-at-law, or to the State, a bill filed 
 by the heirs-at-law, not impugning the estate of the equitable 
 tenant for life, but praying that the estates in remainder, some of 
 which were to persons yet unborn, should be declared invalid, 
 was held improper as a cross-bill. 12 A cross-bill should not be 
 filed merely to procure the appointment of a receiver. 13 Where, 
 on a bill by several persons to restrain the infringement of a 
 patent and for an account, the defenses being invalidity of the 
 patent and a license, the court sustains the patent and decrees 
 damages ; a bill cannot be sustained as a cross-bill, which sets 
 up a judgment in another suit against one of the complainants, 
 and prays that they all set forth and discover what share of 
 the damages is claimed by each, so that the defendant who files 
 the cross-bill may set off his judgment against the share claimed 
 by his judgment debtor. 14 A cross-bill in a suit to restrain the 
 infringement of a patent will not be sustained when filed by 
 a defendant who claims no title to the patented invention, for 
 the sole purpose of a discovery of the weakness of the com- 
 
 10 Weaver v. Alter, 3 Woods, 152. 13 Indiana Southern It. R. Co. v. Liver- 
 
 11 Putnam v. New Albany, 4 Biss. 365, pool, London, & Globe Ins. Co., 109 U. S. 
 373. 168. 
 
 12 Cross v. DeValle, 1 Wall. 5. See u Rubber Company v. Goodyear, 9 
 Neal v. Foster, 34 Fed. R. 496, 498 ; Os- Wall. 807. 
 borne v. Barge, 30 Fed. R. 805.
 
 250 CROSS-BILLS. [CHAP. XIII. 
 
 plainant's title, an injunction against his suing to enforce his 
 patent, and a decree declaring the patent void. 15 It has been 
 held that, in such a suit, a third party who has been allowed to 
 intervene cannot file a cross-bill which could not have been 
 maintained b}' the original defendant. 16 It has been held that, 
 in a suit brought under U. S. R. S. § 4918, touching interfering 
 patents, affirmative relief may be given the defendant upon his 
 answer ; and that a cross-bill is unnecessary, 17 but may be filed 
 if the defendant so chooses. 18 Cross-bills were formerly used to 
 bring to the attention of the court facts constituting a defense, 
 which had occurred since the answer was filed, thus answering 
 the purpose of a plea puis darrein continuance at law. 19 Now, 
 however, it is more customary to plead such matters in a sup- 
 plemental answer. 20 Matters which regularly should be included 
 in a cross-bill may by consent be set up in an answer, and relief 
 granted as if a cross-bill had been filed ; 21 and by consent a 
 cross-bill may be filed when an answer is all that is required 
 to protect the rights of the defendant. 22 
 
 § 172. Frame of a Cross-Bill. — A cross-bill should state the pre- 
 vious proceedings in the suit, setting forth specifically the 
 parties, the objects, and the prayer of the original bill ; and the 
 rights of the party exhibiting the cross-bill, which are necessary 
 to be made the subject of a cross litigation, or the ground on 
 which he resists the claims of the plaintiff in the original bill, 
 whichever is the object of the cross-bill. 1 It should not intro- 
 duce new and distinct matters not embraced in or germane to the 
 original suit. For as to such matters it would be an original 
 bill ; and they could not properly be examined at the hearing 
 upon the former bill. 2 It should not contain any statements 
 
 15 Young v. Colt, 2 Blatchf. 373. 21 Heath v. Erie Ry. Co., 9 Blatchf . 316. 
 
 i 6 Curran v. St. Charles Car Co., 32 See Kelsey v. Hobby, 16 Pet. 269. 
 
 Fed. R. 835. But see Ide v. Ball Engine 2 - Northern Railroad v. Ogdensburg & 
 
 Co., 31 Fed. R. 835. Lake Champlain R. R. Co., 18 Fed. R. 815 ; 
 
 « Lockwood v. Cleveland, 6 Fed. R. s. c. 20 Fed. R. 347. 
 
 466. § 172. 1 Story's Eq. PI. § 401 ; Mit- 
 
 18 American Clay Bird Co. v. Ligowski ford's PI. ch. 1, § 3. But see Neal v. 
 Clay-Pigeon Co., 31 Fed. R. 466. Foster, 34 Fed. R. 496. 
 
 1 9 Mitford's PI. ch. 1, § 3; Hayne v. 2 Story's Eq. PI. § 401; Weaver v. 
 Hayne, 3 Ch. R. 19. See Kelsey v. Alter, 3 Woods, 152 ; Cross v. DeValle, 
 Hobby, 16 Pet. 269, 277. 1 Wall. 5 ; Ayres v. Carver, 17 How. 591 ; 
 
 -' See Suydam v. Truesdale, 6 McLean, Rubber Company v. Goodyear, 9 Wall. 
 459; Kelsey v. Hobby, 16 Pet. 269, 277 ; 807. 
 Talmage v. Pell, 9 Paige (N. Y.), 410, 413.
 
 § 172.] FRAME OF A CROSS-BILL. 251 
 
 inconsistent with those in the answer of the defendant filing it. 
 If so, they may be disregarded ; 3 or if principally composed of 
 such the cross-bill may be dismissed. 4 It will be sustained even 
 if the requisite difference of citizenship do not exist between 
 the plaintiffs and defendants in it, as it is merely auxiliary to 
 the principal suit of which the court has already obtained juris- 
 diction. 5 It seems that a cross-bill may pray relief which could 
 not be obtained by original bill because of a remedy at law. 
 Thus, it has been held that a defendant who is not in possession 
 of land, when a bill is filed against him to remove a cloud to the 
 title to the same, may, if he can show a better title than that of 
 the complainant, obtain possession of the land by cross-bill. 6 A 
 cross-bill filed simply for discovery need show no equity for dis- 
 covery, as the court's jurisdiction for that purpose is sufficiently 
 supplied by the original bill. 7 When a cross-bill is brought by 
 one defendant against another, it seems that the original com- 
 plainant must be made a party to it. 8 It has been said by a judge 
 of great authority that " new parties cannot be introduced into a 
 cause by a cross- bill." 9 It was then held that this could not be 
 done when the result would be to arrange parties of the same 
 citizenship upon different sides of a controversy over which a 
 Federal court would have no original jurisdiction. 10 It has been 
 said, however, that such an objection can be raised only by the 
 new parties thus sought to be brought in. 11 And in a suit to 
 restrain the infringement of a patent, a cross-bill was sustained 
 which brought in as defendant to it a new party, the assignor of 
 the patent to the original complainant; claimed that that assignor 
 had previously assigned the equitable title thereto to the orator of 
 the cross-bill, and that the legal assignee had bought with notice 
 thereof; and prayed a conveyance of the patent and an injunction 
 against further annoyance. 12 A stranger to a suit cannot file a 
 
 8 Savage v. Carter, 9 Dana (Ky.), 409, ch. 1, § 3 ; Doble v. Potman, Hardres, 
 
 414. 160. 
 
 4 Hudson v. Hudson, 3 Randolph ( Va.), 8 Daniell's Ch. Pr. (2d Am. ed.) 1747 ; 
 
 117. Putnam v. New Albany, 4 Biss. 365, 373. 
 
 6 Peay v. Schenck & Bliss, Woolw. 175 ; 9 Mr. Justice Curtis in Shields v. Bar- 
 Cross v. DeValle, 1 Wall. 5; Osborne Co. row, 17 How. 130, 145. See Randolph v. 
 v. Barge, 30 Fed. R. 805. But see Veach Robinson, 2 N. J. L. J. 171. 
 v. Rice, 131 U. S. 293, 318. 10 Shields v. Barrow, 17 How. 130. 
 
 6 Greenwalt v. Duncan, 16 Fed. R. 35. u Brandon Manuf. Co. v. Prime, 14 
 
 Contra, Calverley v. Williams, 1 Ves. Jr. Blatchf. 371, 373. 
 
 211, 213 ; Story's Eq. PI. § 398. 12 Brandon Manuf. Co. v. Prime, 14 
 
 1 Story's Eq. PI. § 399 ; Mitford's PI. Blatchf. 371. See also Blodgett v. Ho-
 
 252 CKOSS-BILLS. [chap. XIII. 
 
 cross-bill without permission from the court. 13 One filed without 
 such permission may be stricken from the file. 14 In England a 
 cross-bill could be filed in a different court from that where the 
 original bill was pending ; 15 but a cross-bill cannot be filed in a 
 State court to a bill pending in a Circuit Court of the United 
 States. 16 It is no objection to a cross-bill in a Federal court that 
 an original bill for the same relief was previously filed in a court 
 of the State where the Federal court was held; 17 but after a 
 removal of the suit begun in the State court, the two suits may 
 be consolidated. 18 A cross-bill should be signed by counsel. 19 
 In other respects cross-bills should conform to the requirements 
 of original bills. 20 It is irregular to unite a cross-bill and an 
 answer in the same pleading. 21 A petition " by way of a cross- 
 bill " filed by a defendant, " referring to the case by title, and stat- 
 ing that ' the facts fully appear in the case,' praying the reverse of 
 what the complainant had prayed, but not making anybody de- 
 fendant nor praying process, and under which no process was 
 obtained," was held a mere nullity, which should have been 
 stricken from the file, and was disregarded by the court upon 
 appeal. 22 It seems that a bill filed as a cross-bill, if irregular in 
 that respect alone, may yet be sustained as an original bill. 23 
 
 § 173. Proceedings upon Cross-Bills. — It has been held at cir- 
 cuit that a subpoena to answer a cross-bill may, by express leave 
 of the court, be served by substitution upon the attorney for the 
 complainant to the original bill when his client is beyond the 
 jurisdiction of the court. 1 In that case the original bill was filed 
 to foreclose a mortgage, of which the cross-bill prayed a cancella- 
 tion. The court said : " The reason of this rule would seem to 
 
 bart, 18 Vt. 414 ; Hurd v. Case, 32 111. 45 ; 19 Smith's Ch. Pr. Book II. ch. i. 
 
 Jones v. Smith, 14 111. 229. 20 Smith's Ch. Pr. Book II. ch. i.; Dan- 
 
 13 Bronson v. La Crosse & Milwaukee iell's Ch. Pr. (5th Am. ed.) ch. xxxiv. § 1. 
 R. Pi, Co., 2 Wall. 283 ; Forbes v. Mem- See Mason v. Gardiner, 4 Brown Ch. C. 
 phis, El Paso, & Pacific R. R. Co., 2 436 ; Greenwalt v. Duncan, 16 Fed. R. 35. 
 Woods, 323. 21 Hubbard v. Turner, 2 McLean, 519, 
 
 14 Bronson v. La Crosse & Milwaukee 540; Morgan v. Tipton, 3 McLean, 339, 
 R. R. Co., 2 Wall. 283, 294, 303; Putnam 344. But see Talbot v. McGee, 4 Monr. 
 v. New Albany, 4 Biss. 365, 367. (Ky.) 375, 378. 
 
 15 Parker v . Leigh, 6 Madd. 115 ; - 2 Washington R. R. v. Bradleys, 10 
 Story's Eq. PI. § 400. Wall. 299, 300, 303. 
 
 16 Story's Eq. PL § 400. 23 Foss v. First Nat. Bank, 1 McCrary, 
 
 17 Brandon Manuf. Co. v. Prime, 14 474. 
 
 Blatchf . 3?1. § 173. * Lowenstein v. Glidewell, 5 Dill. 
 
 J8 Wabash, St. L., & P. Ry. Co. v. Cen- 325. But see Rubber Co. v. Goodyear, 
 tral Trust Co. of N. Y., 23 Fed. R. 513. 9 Wall. 807, 810, 811.
 
 § 173.] PROCEEDINGS UPON CROSS-BILLS. 253 
 
 limit it in equity cases to cross-bills, either wholly or partly de- 
 fensive in their character, and to deny its application to cross- 
 bills setting up facts not alleged in the original bill, and which 
 new facts, though they relate, as they must, to the subject-matter 
 of the original bill, are made the basis for the affirmative relief." 2 
 Leave to make substituted service was refused in a case where 
 the plaintiffs offered to stipulate that the matter sought to be 
 pleaded by cross-bill might be set up by answer. 3 Service by 
 publication of a subpoena upon a cross-bill is improper. 4 " Where 
 a defendant in equity files a cross-bill for discovery only against 
 the plaintiff to the original bill, the defendant to the original bill 
 shall first answer thereto before the original plaintiff shall be 
 compellable to answer the cross-bill. The answer of the original 
 plaintiff to such cross-bill may be read and used by the party 
 filing the cross-bill at the hearing, in the same manner and 
 under the same restrictions as the answer praying relief may 
 now be read and used. 5 By amending his bill, the plaintiff was 
 held in England to lose the benefit of such a rule, 6 provided that, 
 when he made the amendment, he knew that the cross-bill had 
 been filed. 7 The testimony taken under the cross-bill may be 
 read for or against the original bill ; and the testimony taken 
 under the original bill can be read for or against the cross-bill. 
 In either case a formal order granting leave to do this, " saving 
 all just exceptions," should first be obtained ex parte? Both 
 bills are usually heard together both in the first instance 9 and 
 upon appeal. 10 Where a decree had been made dismissing a 
 cross-bill before a decree upon the original bill, it was held 
 that an appeal therefrom taken before a decree upon the original 
 bill must be dismissed. 11 A decree upon the original bill will 
 supersede a previous decree upon a cross-bill if the two are 
 inconsistent. 12 Where the cross-bill seeks relief, the voluntary 
 
 2 Caldwell, J., in Lowcnstein v. Glide- 1553 ; Lubiere v. Genou, 2 Ves. Sen. 
 
 well, 5 Dill. 325, 328. See Rubber Co. 579. 
 
 v. Goodyear, 9 Wall. 807, 810, 811. 9 Ayres v. Carver, 17 How. 501 ; Moore 
 
 8 Heath v. Erie Ky. Co., 9 Blatehf . 316. v. Huntington, 17 Wall. 417, 422 ; Ex parte 
 
 4 Webster Loom Co. r. Short, 10 Off. Railroad Co., 95 U. S. 221 ; Daniell's Ch. 
 
 Gaz. 1019. Pr. (2d Am. ed.) 1751. 
 
 6 Rule 72. 10 Ayres v. Carver, 17 How. 591 ; Ex 
 
 6 Noel v. King, 2 Madd. 392 ; Hannah v. parte Railroad Co., 95 U. S. 221. 
 Hodgson, 80 Beav. 19. u Ayres v. Carver, 17 How. 591. 
 
 7 Gray v. Haig, 13 Beav. 65. 12 Ex parte Railroad Co., 95 U. S. 221, 
 
 8 Daniell's Ch. Pr. (5th Am. ed.) 1552, 225.
 
 254 CROSS-BILLS. [CHAP. XIII. 
 
 dismissal of the original bill will not dismiss the cross-bill. 13 It 
 is otherwise where the cross-bill merely seeks discovery. 14 It 
 has been held that a dismissal of the original bill by the court 
 after a hearing operates as a dismissal of a cross-bill between the 
 defendants, even though the cross-bill show a good case for 
 relief; " but as a cross-bill, it must follow the fate of the original 
 bill." 15 A cross-bill should not be filed before the answer to the 
 original bill. 16 It should regularly be filed with, or immediately 
 after, the defendant's answer, 17 but may be allowed any time 
 before the final decree. 18 But a creditor who has come in under 
 a decree for the benefit of creditors may file a cross-bill without 
 leave of the court, if his rights cannot be otherwise adequately 
 protected. 19 In a case where the defendant, after answer, learned 
 of facts tending to show that the plaintiff had before suit parted 
 with all interest in the subject-matter to a citizen of the same 
 State as the defendant, the proceedings were stayed until the 
 complainant answered a cross-bill charging such a transfer. 20 
 When an abatement takes place after a cross-bill has been filed, 
 it seems that there should be a bill of revivor filed in both the 
 original and the cross cause. 21 Otherwise, proceedings upon cross- 
 bills are substantially the same as those upon original bills. 22 
 
 13 Lowenstein v. Glidewell, 5 Dill. 325 ; White v. Buloid, 2 Paige (N. Y.), 164 ; 
 
 Chicago & Alton R. R. Co. v. Union Allen v. Allen, Hempst. 58. 
 
 Rolling Mill Co., 109 U. S. 702. 18 Neal v. Foster, 34 Fed. R. 496 ; 
 
 « Donohoe v. Mariposa Land & Mining Rogers v. Reissner, 31 Fed R. 592. 
 
 Co., 1 Pacific Coast L. J. 211, 219. 19 La Touche v. Lord Dunsany, 1 Sch. 
 
 15 Mr. Justice Field in Dows v. Chicago, & Lef. 137 ; Story's Eq. PI. § 397. 
 11 Wall. 108, 112. See also Cross v. 23 Young v. Pott, 4 Wash. 521. 
 DeValle, 1 Wall. 5, 14. But see Wabash, 21 Story's Eq. PI. § 363. 
 
 St. L. & P. Ry. Co. v. Central Trust Co. of ^ See, however, Lautz v. Gordon, 28 
 
 N. Y., 22 Fed. R. 138, 142. Fed. R. 264 ; Puetz v. Bransford, 31 Fed. 
 
 16 Allen v. Allen, Hempst. 58. R. 458. 
 
 17 Darnell's Ch. Pr. (2d Am. ed.) 1745 ;
 
 S 174.1 ABATEMENT. 255 
 
 J 
 
 CHAPTER XIV. 
 
 BILLS OF REVIVOR, SUPPLEMENTAL BILLS, BILLS OF REVIVOR 
 AND SUPPLEMENT, AND BILLS IN THE NATURE OF THE 
 SAME. 
 
 § 174. Abatement. — If any event happens after the filing of a 
 bill in equity which makes it necessary to bring in a new party, 
 either plaintiff or defendant, in order to obtain a complete or 
 satisfactory determination of the controversy, the suit will either 
 abate or become defective. 1 The abatement or defect must be 
 remedied by the filing of a bill of revivor, a bill in the nature of 
 a bill of revivor, a supplemental bill, a bill in the nature of a 
 supplemental bill, or a bill of revivor and supplement. 2 An abate- 
 ment takes place by the death of one of the parties, or, where a 
 married woman is under a disability, by the marriage of a female 
 plaintiff. 3 An action entirely abates by the death of any of the 
 plaintiffs : 4 unless his interest therein wholly ceases by his 
 death, 5 or survives to another party to the suit, 6 or he has been 
 previously discharged by a decree in an interpleader 7 suit, or a 
 suit in the nature of an interpleader; when it does not. Formerly 
 a suit abated by the marriage of a female plaintiff; 8 but it may 
 be doubted whether this rule would be followed where a married 
 woman has the same power over her property as if she were 
 single. 9 By the marriage of a female defendant, a suit never 
 abated, though her husband had to be named in all subsequent 
 proceedings. 10 When the husband of a female plaintiff died, by 
 the former practice she could at her option continue the suit 
 without filing any bill of revivor ; but if she did not, it was con- 
 
 § 174. ! Mitford's PI. ch. 1, § 3. 7 Anon., 1 Vera. 351 ; Jennings v. 
 
 2 Mitford's PI. ch. 1, § 3. Nugent, 1 Molloy, 134 ; Daniell's Ch. Pr. 
 
 8 Mitford's PI. ch. 1, § 3. (2d Am. ed.) 1765. 
 
 * Mitford's PI. ch. 1, § 3 ; Story's Eq. 8 Mitford's PI. ch. 1, § 3; Story's Eq. 
 
 PI. § 354. PI. § 354. 
 
 6 Daniell's Ch. Pr. (2d Am. ed.) 1698; 9 Lorillard v. Standard Oil Company, 
 
 Mitford's PI. ch. 1, § 3. 2 Fed. R. 902. 
 
 6 Fallowes v. Williamson, 11 Ves. 309; 10 Mitford's PI. ch. 1, § 3; Story's Eq. 
 
 Boddy v. Kent, 1 Mer. 364 ; Fisher v. PI. § 354. 
 Rutherford, Baldw. 188; Daniell's Ch. 
 Pr. (2d Am. ed.) 1699.
 
 256 BILLS OF KEYIVOR, ETC. [CHAP. XIV. 
 
 sidered abated and she was not liable for the costs. 11 A suit 
 abates upon the death of a defendant who has appeared so far as 
 proceedings against him or his interest are concerned, and if he 
 were an indispensable party to a decree all proceedings must be 
 suspended till his representatives have been brought in. 12 If, 
 however, his interest wholly ceases by his death, or wholly sur- 
 vives to one of the other parties, no revivor will be necessary. 13 
 A suit abates by the death of a member of a firm during a suit 
 against it. 14 The death of a defendant before appearance does 
 not abate the suit. For, according to the former practice, till 
 his appearance, or a decree taken against him pro confes&o, there 
 was no cause against him ; but a bill had to be filed against his 
 representative, which was an original bill as far as respected the 
 defendant, but a supplemental bill with respect to the suit. 15 It 
 has been held that the death of a sole defendant to a suit for an 
 injunction against the infringement of a patent and for an ac- 
 counting, when it occurs before a decree for an accounting, abates 
 and terminates the suit so that it cannot be revived against his 
 executor, unless it be shown that the latter continues the in- 
 fringement. 16 After an interlocutory decree for an accounting, 
 such a suit may be revived against the personal representatives 
 of the deceased defendant. 17 Unless there be some clause in its 
 charter to the contrary a suit by or against a corporation abates 
 by the dissolution of the corporation ; 18 but it has been held that 
 the entrance into liquidation and the closing of the business of a 
 national banking association does not abate a suit brought in its 
 name. 19 After a decree has been reversed by the Supreme Court 
 upon appeal, and the cause sent back to the Circuit Court with a 
 special mandate directing the further proceedings to be taken, 
 it is too late to claim for the first time that the suit has abated 
 by the death of the complainant before the entry of the reversed 
 decree. 20 
 
 11 Mitford's PL ch. 1, § 3. I6 Draper v. Hudson, 1 Holmes, 208. 
 
 1 2 Story's Eq. PI. § 369. 17 Atterbury v. Gill, 13 Off. Gaz. 276. 
 
 13 Mitford's PI. ch. 1, § 3; Daniell's 18 National Bank v. Colby, 21 Wall. 
 Ch. Pr. (2d Am ed.) 1698,1699; Story's 609; Greeley v. Smith, 3 Story, 658; 
 Eq. PI. § 357. Mumma v. Potomac Company, 8 Pet. 
 
 14 Wilson v. Seligman, 10 Repr. 651, 281. 
 
 A. D. 1880. 19 National Bank v. Insurance Co., 104 
 
 15 Shadwell, V. C, in Crowfoot v. Man- U. S. 54, 72. 
 
 der, 9 Simons, 396. See United States ™ Ex parte Story, 12 Pet. 339, 342. 
 v. Fields, 4 Blatchf. 326.
 
 § 175.] EFFECT OF ABATEMENT. 257 
 
 § 175. Effect of Abatement. — "An abatement, in the sense of 
 the common law, is an entire overthrow or destruction of the suit, 
 so that it is quashed and ended. But in the sense of courts of 
 equity, an abatement signifies only a present suspension of all pro- 
 ceedings in the suit, from the want of proper parties capable of 
 proceeding therein. At the common law, a suit, when abated, is 
 absolutely dead. But in equity, a suit, when abated, is (if such 
 an expression be allowable) merely in a state of suspended ani- 
 mation, and it may be revived." l Upon the total abatement of 
 a suit the cause is completely suspended while the abatement 
 continues ; and, in general, all orders made pending such abate- 
 ment will be considered nugatory and may be discharged. 2 
 Applications may, however, be made by parties affected thereby, 
 to discharge process of contempt issued or executed pending the 
 abatement. 3 Applications have, moreover, been granted during an 
 abatement for the payment of money out of court, when the right 
 thereto had been previously established ; 4 for the preservation 
 of the property in dispute ; 5 for the punishment of a party for 
 breach of an injunction; 6 and to set aside irregular proceedings 
 pending the abatement. 7 So, too, a decree previously made could 
 be enrolled ; 8 and it has been held in England that depositions 
 might be taken under a commission previously issued. 9 Orders 
 previously made continue in force until discharged. 10 But the 
 time given a party within which to do a certain act is always 
 suspended by an abatement. 11 Where a preliminary injunction 
 has been previously granted, the court may issue an order re- 
 quiring that the representatives of a deceased plaintiff revive 
 within a certain time, usually a fortnight after notice, or that the 
 injunction be dissolved. 12 No such order will be granted after a 
 
 § 175. J Story's Eq. PI. § 354. See 8 Darnell's Ch. Pr. (2d Am. ed.) 1715. 
 
 also Hoxie v. Carr, 1 Sumner, 173, 178; 9 Thompson v. Took, 1 Dickens, 115; 
 
 Melius v. Thompson, 1 Cliff. 125, 129. Peters v. Robinson, 1 Dickens, 116; Sin- 
 
 2 Daniell's Ch. Pr. (2d Am. ed), 1714; clair v. James, 1 Dickens, 277. 
 
 Griswold v. Hill, 1 Paine, 483. 10 Daniell's Ch. Pr. (2d Am. ed.) 1716; 
 
 8 Daniell's Ch. Pr. (2d Am. ed) 1715. Lee v. Lee, 1 Hare, 622; Hawley v. 
 
 * Finch v. Lord Winchelsea, 1 Eq. Bennett, 4 Paige (N. Y.) 163. 
 
 Cas. Abr. 2 ; Roundell v. Currcr, 6 Ves. u Gregson v. Oswald, 1 Cox Eq. 343. 
 
 250; Daniell's Ch. Pr. (2d Am. ed.) 1715. 12 Jones v. Massey, Brown v. Warner, 
 
 6 Washington Insurance Co. v. Slee, 2 Turner v. Cole, all quoted in Chowick v. 
 
 Paige (N. Y.), 365, 368. Dimes, 3 Beav. 290, 292, 293; Chester v. 
 
 6 Hawley v. Bennett, 4 Paige (N. Y.), Life Association of America, 4 Fed. K. 
 163. 487. 
 
 7 Quackenbush v. Leonard, 10 Paige 
 (N. Y.)., 131. 
 
 17
 
 258 BILLS OF EEVIVOK, ETC. [CHAP. XIV. 
 
 decree for a perpetual injunction ; for that " would be in effect 
 decreeing a perpetual suit." 13 The power of the court to make 
 an order that the representatives of a deceased plaintiff revive 
 within a certain limited time after notice to them, or that the 
 bill be dismissed, is doubtful. 14 Where the abatement is partial, 
 as where it is caused by the death of a defendant, it prevents 
 those proceedings only by which his interest may be affected. 15 
 Thus, if there be a decree against trustees and the beneficiary of 
 their trust for a conveyance, and the beneficiary die, the trustees 
 may still be obliged to convey ; 16 and, after the death of one 
 defendant, process of contempt may be issued and executed 
 against the others. 17 It has also been held that the death of a 
 defendant after hearing but before a decree does not necessarily 
 prevent judgment; 18 and that, if practicable, a decree made 
 before a defendant's death, for example, a decree for a sale, may 
 be enforced without revivor. 19 
 
 § 176. When a Suit may be Revived and Effect of Revivor. — A 
 suit which has abated may generally be revived when anything 
 further remains to be done therein. 1 But a suit will not be 
 allowed to be revived merely for costs which are untaxed, and 
 have not been previously directed to be paid out of a particular 
 estate or fund, or decreed against an executor out of assets. 2 
 Nor can a bill of revivor be brought upon a bill filed merely 
 for discovery, after the discovery required thereby has been ob- 
 tained. 3 Where the abatement is by the death or marriage of a 
 plaintiff, an order to revive the suit places it and all proceedings 
 in it in precisely "the same plight, state, and condition that the 
 same were in at the time when the abatement took place." 4 
 
 13 Askew v. Townsend, 2 Dickens, 471. 18 Davies r. Davies, 9 Ves. 461 ; Dan- 
 
 14 Compare dictum of Judge Story in iell's Ch. Pr. (2d Am. ed.) 1717. 
 
 Hoxie v. Carr, 1 Sumner, 173, 178, and I9 Whiting v. Bank of the United 
 
 the case of Chowiek v. Dimes, 3 Beav. States, 13 Pet. 6. 
 
 290, where Lord Langdale, M. R., granted §17(5. 1 Gilbert's Forum Romanum, 
 
 such an order; with that of Lee v. Lee, 181 ; Johnson v. Peck, 2 Ves. Sen. 465; 
 
 1 Hare, 617, where Vice-Chanceller Wig- Fitzpatrick v. Domingo, 14 Fed. R. 216 ; 
 
 ram held that the court had no power to Daniell's Ch. Pr. (2d Am. ed.) 1694. 
 
 make one. 2 Daniell's Ch. Pr. (2d Am. ed.) 1694- 
 
 1 5 Daniell's Ch. Pr. (2d Am. ed.) 1716; 1697; Story Eq. PI. § 371; Blower r. 
 Finch v. Lord Winchelsea, 1 Eq. Cas. Morrets, 3 Atk. 772 ; Kemp v. Mackrell, 
 Abr. 2. 3 Atk. 812; Travis v. Waters, 1 J. Ch. 
 
 " Finch v. Lord Winchelsea, 1 Eq. Cas. (N. Y.) 85. 
 Abr. 2.; Daniell's Ch. Pr. (2d Am. ed.) 3 Horsburg v. Baker, 1 Pet. 232. 
 
 1716. 4 Gregson v. Oswald, 1 Cox Eq. 344. 
 
 " Daniell's Ch. Pr. (2d Am. ed.) 1716.
 
 § 177.] WHO MAY REVIVE A SUIT. 259 
 
 The new plaintiff may then take the same proceedings that the 
 original plaintiff might have done. 6 Thus, the new plaintiff may 
 prosecute process of contempt against the defendant, taking it 
 up where it stood at the abatement ; and if a process has been 
 previously issued it will be revived with the revivor of the suit. 
 But where the abatement is caused by the death of a defendant, 
 "the process, being personal, cannot be revived." 7 In general, 
 however, an order to revive against the representatives of a de- 
 ceased defendant, will place the suit as fully in the same position 
 with regard to such representatives as can be done with refer- 
 ence to the change of the individuals before the court. 8 After 
 revivor testimony previously taken can be used. 9 
 
 § 177. "Who may Revive a Suit. — It is generally necessary in 
 order to entitle one to revive, that there should be a privity 
 between him and the party whose death caused the abatement. 
 Therefore, upon the death of one suing in a representative capa- 
 city, the defect can usually be remedied only by a supplemental 
 bill, and not by a bill of revivor. 1 It has been held, however, 
 that upon the death of an administrator, the administrator de bonis 
 non may file a bill of revivor, " though there is no actual privity 
 between him and the original plaintiff." 2 But Judge Story sug- 
 gests that a bill in the nature of a bill of revivor would be more 
 appropriate. 3 It is said by Lord Redesdale that in the case of a 
 bill by creditors on behalf of themselves and other creditors, any 
 creditor may revive; 4 but according to Daniell, in practice the 
 form of a bill in such a case is that of a supplemental bill in the 
 nature of a bill of revivor, and not of a mere bill of revivor. 5 Be- 
 fore decree, a suit can only be revived by one or all of the sur- 
 viving plaintiffs, or the representatives of one that has died. 6 If 
 any of these refuse to join, he must be made a defendant to the 
 bill filed to revive the suit. 7 If the suit concerned solely the 
 
 5 Vattier v. Hinde, 7 Pet. 252, 266; Mitford's PI. ch. 1, § 3; Unpins v. York 
 
 Philips v. Derbie, 1 Dickens, 98; Hyde v. Building Co., 2 Eq. Cas. Abr. 3; < >wen v. 
 
 Forster, 1 Dickens, 132; Daniell'a Ch. Pr. Curzon, 2 Vern. 237. 
 (2d Am. ed.) 1778. 8 Story's Eq. PI. § 382, note 4. 
 
 Hyde v. Forster, 1 Dickens, 132; * Mitford's PI. ch. 1, § 3. 
 Daniell's Ch. Pr. (2d Am. ed.) 1778. 5 Daniell's Ch. Pr. (2d. Am. ed) 1703. 
 
 7 Daniell's Ch. Pr. (2d Am. ed.) 1778. G Daniell's Ch. Pr. (2d Am. ed ) 1700; 
 
 8 Daniell's Ch. Pr. (2d Am. ed.) 1778. Ch< sti r v. Life Association of America, 
 
 9 Vattier v. Hinde, 7 Pet. 252, 266. 4 Fed. 1?. 487. 
 
 §197. > Daniell's Ch. Pr. (2d Am. 7 Daniell's Ch. Pr. (2d Am. ed.) 1700; 
 ed.) 1«97; Story's Eq. PI. § :;i0. Fallowes v. Williamson, 11 Ves. 309. 
 
 2 Daniell's Ch. Pr. (2d Am. ed.) 1697 ;
 
 260 BILLS OF REVIVOR, ETC. [CHAP. XIV. 
 
 real estate of a deceased plaintiff, his heirs alone are entitled to 
 represent him therein ; 8 if solely his personal estate, his execu- 
 tor or administrator ; 9 if both, separate bills may be revived by 
 both his heirs and personal representatives, and the neglect of 
 one to revive will not prejudice the other. 10 In the case of a 
 suit by a corporation sole, the death of the plaintiff, if he were 
 entitled to the subject-matter for his own benefit, caused an 
 abatement ; and the suit could be revived by his personal repre- 
 sentative. 11 If, however, he were only entitled to the subject- 
 matter in his corporate capacity, the suit became defective, and 
 could only be continued by his successor by means of an original 
 bill in the nature of a supplemental bill. 12 After a decree, a suit 
 may be revived by any defendant, or by the representative of any 
 deceased defendant, who has acquired any right thereunder, as 
 well as by any plaintiff. 13 
 
 § 178. Manner of Revivor in General. — " When a suit became 
 abated after a decree signed and inrolled, it was anciently the 
 practice to revive the decree by a subpoena in the nature of a 
 scire facias, upon the return of which the party to whom it was 
 directed might show cause against the reviving of the decree, by 
 insisting that he was not bound by the decree, or that for some 
 other reason it ought not to be enforced against him, or that the 
 person suing the subpoena was not entitled to the benefit of the 
 decree. If the opinion of the court was in his favor he was dis- 
 missed with costs. If it was against him, or if he did not oppose 
 the reviving of the decree, interrogatories were exhibited for his 
 examination touching any matter necessary to the proceedings. 
 If he opposed the reviving of the decree on the ground of facts 
 which were disputed, he was also to be examined upon interrog- 
 atories, to which he might answer or plead ; and issue being 
 joined, and witnesses examined, the matter was finally heard and 
 determined by the court. But if there had been any proceeding 
 subsequent to the decree, this process was ineffectual, as it 
 
 8 Mitford's Equity Pleading, ch. 1, 125; Ferrers v. Cherry, 1 Eq. Cas. Abr. 
 § 3 ; Ferrers v. Cherry, 1 Equity Cases 3, 4. 
 
 Abridged, 3, 4; Melius v. Thompson, 1 u Daniell's Ch. Pr. (2d Am. ed) 28, 
 
 Cliff. 125. 1701 ; 1 Kyd on Corporations, 77. 
 
 9 Mitford's PI. ch. 1, § 3; Melius v. 12 Daniell's Ch. Pr. (2d Am. ed.) 28 & 
 Thompson, 1 Cliff. 125 ; Ferrere v. Cherry, 1701 ; 2 Bac. Abr. Corporation, E. 2. 
 
 1 Eq. Cas. Abr. 3, 4. 13 Williams v. Cooke, 10 Ves. 406 ; 
 
 10 Mitford's PI. ch. 1, § 3; Story's Eq. Devaynes v. Morris, 1 Myl. & Cr. 213, 
 PI. § 367; Melius v. Thomson, 1 Cliff. 225.
 
 § 179.] DEFINITION OF BILLS OF REVIVOR. 261 
 
 revived the decree only, and the subsequent proceedings would 
 not be revived but by bill, and the inrollment of decrees being 
 now much disused, it is become the practice to revive in all cases 
 indiscriminately by bill." 1 The writer is not acquainted with 
 any instance of such practice in the United States. The only 
 methods of reviving a suit in equity in the Federal courts seem 
 to be a bill of revivor, a bill in the nature of a bill of revivor, a 
 bill of revivor and supplement, or a supplemental bill in the 
 nature of a bill of revivor. It was held in one case that the 
 personal representatives of a deceased defendant may voluntarily 
 come in and be made a party upon motion. 2 When a board of 
 public officers was abolished by statute and a new board sub- 
 stituted for it, it was held, without determining whether or 
 not a revivor was necessary, that the members of the new board 
 could properly be made parties to the suit by means of a bill of 
 revivor. 3 
 
 § 179. Definition of Bills of Revivor and Parties to the Same. — 
 A bill of revivor is a continuance of the original bill, when, by 
 death, some party to it has become incapable of prosecuting or 
 defending a suit, or a female plaintiff has by marriage incapaci- 
 tated herself from suing alone. 1 " Whenever a suit abates by 
 death, and the interest of the person whose death has caused the 
 abatement is transmitted to that representative which the law 
 gives or ascertains, as an heir-at-law, executor, or administrator ; 
 so that the title cannot be disputed, at least in the court of chan- 
 cery, but the person in whom the title is vested is alone to be 
 ascertained ; the suit ma} r be continued by bill of revivor merely. 
 If a suit abates by marriage of a female plaintiff, and no act is 
 done to affect the rights of the party but the marriage, no title 
 can be disputed ; the person of the husband is the sole fact to be 
 ascertained; and therefore the suit may be continued in this case 
 likewise by bill of revivor merely." 2 The persons who may be 
 plaintiffs in a bill of revivor have been specified in a preceding 
 section. 3 If the abatement be caused by the death or marriage 
 of a plaintiff, all previous defendants to the suit must be made 
 
 § 178. Mitford's Chancery Pleadings, 1G4 ; Allen v. The Mayor, 18 Blatchf. 239 ; 
 
 eh. 1, § 3. 8. c. 7 Fed. R. 483. 
 
 2 Griswold v. Hill, 1 Paine, 483. See § 179. » Mitford's PL ch. 1, § 3; Fitz- 
 
 U. S. R. S. § 955. patrick v. Domingo, 14 Fed. R. 216. 
 
 8 Hemingway v. Stansell, 106 U. S. 2 Mitford's PL ch. 1, § 3. 
 
 399, 402. See also The Sapphire, 11 Wall. 8 § 177.
 
 262 BILLS OF REVIVOR, ETC. [CHAP. XIV. 
 
 parties to the bill of revivor ; unless it be filed after a decree, 
 when all whose rights or duties have been fixed and ascertained 
 thereby must be joined. 4 If any of the previous plaintiffs refuse 
 to join in the continuance of the suit, they also must be made 
 defendants to the bill of revivor. 6 If the abatement be caused by 
 the death of a defendant, only his heirs or personal representa- 
 tives, or both, according as the suit affected his interest in real 
 or personal property, should be made defendants to the bill of 
 revivor ; 6 unless the bill be filed after a decree, when all parties 
 interested thereunder should be joined. 7 There is no need of any 
 difference of citizenship among the different parties to such a bill, 
 provided that the court had jurisdiction of the original suit. 8 A 
 bill of revivor cannot be filed against the representatives of a de- 
 fendant not served with process under the original bill. 9 They 
 can only be brought in by a bill in the nature of an original 
 bill. 10 
 
 § 180. Frame of a Eill of Revivor. — A bill of revivor must state 
 the filing of the original bill, and the several proceedings thereon, 
 and the abatement ; l but it need not set forth any of the state- 
 ments in the original suit, unless the special circumstances of the 
 case require it. 2 " It must show a title to revive, and charge 
 that the cause ought to be revived, and stand in the same condi- 
 tion with respect to the parties in the bill of revivor as it was in . 
 with respect to the parties to the original bill at the time the 
 abatement happened ; and it must pray that the suit may be re- 
 vived accordingly. " 3 If a bill of revivor seeks simply to revive 
 the suit, it prays only for a subpoena to revive. If it requires an 
 answer, it should pray a subpoena to revive and answer. 4 This 
 is usually only required in two classes of cases. Where the bill 
 is filed against an executor or administrator, and requires an 
 admission of assets, the prayer usually is, not only that the suit 
 may be revived, but also that, in case the defendant shall not ad- 
 
 4 Daniell's Ch. Pr. (2d Am. ed.) 170-% 9 United States v. Fields, 4 Blatclif. 
 
 1704. 326. 
 
 s Finch r.Lord Winehelsea,l Eq. Cas. 10 See § 174. 
 
 Ahr. 2; Daniell's Ch. Pr. (2d Am. ed.) § 180. » Mitford's PI. ch. 1, § 3. 
 
 1700. 2 Rule 58. 
 
 6 Bettes v. Dana, 2 Sumner, 383; 3 Mitford's PI. ch. 1, § 3. 
 
 Daniell's Ch. Pr. (2d Am. ed.) 1704. 4 Mitford's PI. ch. 1, § 3; Daniell's 
 
 » Daniell's Ch. Pr. 1704. Ch. Pr. (2d Am. ed.) 1707. 
 
 8 Clarke v. Mathewson, 12 Pet. 164 ; 
 s. c. 2 Sumner, 262.
 
 § 181.] PROCEEDINGS UPON BILLS OF REVIVOR. 263 
 
 mit assets to answer the purposes of the suit, an account of the 
 estate of the deceased party may be taken ; " and so far the bill 
 is in the nature of an original bill." 5 " If a defendant to an 
 original bill dies before putting in an answer, or after an answer 
 to which exceptions have been taken, or after an amendment of 
 the bill to which no answer has been given, the bill of revivor, 
 though requiring in itself no answer, must pray that the person 
 against whom it seeks to revive the suit may answer the original 
 bill, or so much of it as the exceptions taken to the answer of 
 the former defendant extend to, or the amendment remaining 
 unanswered." 6 A bill of revivor should be signed by counsel, 
 and in general comply so far as is practicable with the require- 
 ments for original bills. 7 
 
 § 181. Proceedings upon Bills of Revivor. — The Equity Rules 
 provide that " whenever a suit in equity shall become abated by 
 the death of either party, or by any other event, the same 
 may be revived by a bill of revivor, or a bill in the nature of a 
 bill of revivor, as the circumstances of the case may require, 
 filed by the proper parties entitled to revive the same, which 
 bill may be filed in the clerk's office at any time ; and upon 
 suggestion of the facts, the proper process of subpoena shall, as 
 of course, be issued by the clerk, requiring the proper represen- 
 tatives of the other party to appear and show cause, if any they 
 have, why the cause should not be revived. And if no cause 
 shall be shown at the next rule-day which shall occur after fourteen 
 days from the time of the service of the same process, the suit 
 shall stand revived, as of course." 1 The Revised Statutes pro- 
 vide that " when either of the parties, whether plaintiff, peti- 
 tioner, or defendant, dies before final judgment, the executor or 
 administrator may, if the suit survives, prosecute or defend to 
 final judgment. The defendant shall answer, and the cause 
 will be heard and determined, and judgment rendered for or 
 against the executor or administrator. If the executor or ad- 
 ministrator neglects or refuses to become a party twenty days 
 after being served with a scire facias, the court may nevertheless 
 render judgment against the deceased party. The executor or 
 administrator on becoming a party is entitled to a continuance 
 
 6 Mitford's PI. ch. 1, § 3. § 181. 1 Rule 50. See Oliver v. Deca- 
 
 6 Mitford's PI. ch. 1. § 3. tur, 4 Cranch C. C. 592. 
 
 * Daniell's Ch. Pr. (2d Am. cd.) 1707.
 
 264 BILLS OF EEVIVOR, ETC. [CHAP. XIV. 
 
 until the next term." 2 The form of the subpoena upon a bill of 
 revivor is the same as that upon an original bill, except that it 
 states the nature of the bill to which the defendant is required 
 to appear, and the time allowed him by the rules in which to do 
 so. 3 The subpoena is also sued out and served in the same man- 
 ner as one upon an original bill; 4 but substituted service of the 
 subpoena upon the attorney of the defendant to the original bill 
 may be allowed when the original defendant is beyond the reach 
 of process. 5 But it has been held that a suit cannot be revived 
 against the foreign executor or adminstrator of a deceased de- 
 fendant who has not taken out letters within the jurisdiction of 
 the court, and has no assets there. 6 If the defendant refuses to 
 appear, process of contempt may be issued against him. 7 A 
 defendant who wishes to oppose the revivor, should demur or 
 plead to the bill, or perhaps show cause by affidavit to the con- 
 trary. 8 Where an answer is required that should probably accom- 
 pany the demurrer or plea. It is not expedient to take in the 
 answer any objection to the revivor. For the English rule was 
 that an objection thus taken would not prevent the order to 
 revive, and the point could then only be determined by bring- 
 ing the cause regularly to a hearing. 9 
 
 A bill of revivor is demurrable if it does not show a sufficient 
 ground for reviving the suit or any part of it, either by or 
 against the person by or against whom it is filed ; 10 for want of 
 parties apparent upon its face, though not for the omision of 
 such as had not appeared before, or were not before the court at 
 the time of the abatement ; n and for any serious defect in form. 
 Upon a demurrer to a bill of revivor, the sufficiency of the 
 original bill cannot be considered. 12 Should however, the 
 original bill fail to state facts giving the Federal courts juris- 
 
 2 U. S. R. S. § 955. See Griswold v. Lewis v. Bridgman, 2 Simons, 465; Cod- 
 Hill, 1 Paine, 483. rington v. Houlditch, 5 Simons, 286. 
 
 3 Daniell's Ch. Pr. (2d Am. ed.) 1707. 10 Harris v. Pollard, 3 P. Wms. 348; 
 
 4 Darnell's Ch. Pr. (2d Am. ed.) 1707. University College v. Foxcroft, 2 Ch. 
 
 5 Dunn v. Clarke, 8 Pet. 1,2 ; Norton v. Rep. 244 ; Daniell's Ch. Pr. (2d Am. ed.) 
 Hepworth, 1 Hall& Tw. 158. See § 96. 1709, 1710 ; Story's Eq. PI. §§ 617, 829. 
 
 6 Melius v. Thompson, 1 Cliff. 125. » Metcalfe v. Metcalfe, 1 Keen, 74 ; 
 
 7 Daniell's Ch. Pr. (2d Am. ed.) 1707. Crowfoot v. Mander, 9 Simons, 396 ; Dan- 
 
 8 Daniell's Ch. Pr. (2d Am. ed.) 1709, iell's Ch. Pr. (2d Am. ed.) 1710. 
 
 1710; Rule 58. 12 Mason v. Hartford, P. & F. Ry. Co., 
 
 9 Daniell's Ch. Pr. (2d Am. ed.) 1709, 19 Fed. R. 53, 55; Sharon v. Terry, 36 
 1711; Harris v. Pollard, 3 P. Wms. 348; Fed. K. 337.
 
 § 181.] PROCEEDINGS UPON BILLS OF REVIVOR. 265 
 
 diction, that objection may be raised by a demurrer to the bill 
 of revivor. 13 If a bill of revivor be brought without sufficient 
 cause to revive, and this be not apparent upon its face, or if 
 the plaintiff is not entitled to revive the suit at all, though a 
 title is stated in the bill so that it is not demurrable, the de- 
 fendant may set up his objections to it by plea. 14 The running 
 of the statute of limitations after the time when a person became 
 entitled to revive is also in most cases, except after a decree for 
 an account, 15 a defense and a bar to a bill of revivor, which may 
 be set up by plea. ld No plea can be put in against a bill of 
 revivor which has been pleaded to the original bill and over- 
 ruled, although if a plea has been put in and the suit abated 
 before argument, it may subsequently be pleaded anew to the 
 original bill. 17 When an answer to a bill of revivor is required, 
 it must be confined to such matters as are called for by the bill, 
 or as would be material to the defense with reference to the 
 order made upon it. 18 Allegations which might have been 
 pleaded before abatement to the original bill will be considered 
 as impertinent, 19 and disregarded. 20 It will not, however, be im- 
 pertinent, if it states matters of defense which have occurred 
 since the answer to the original bill was filed, though these do 
 not affect the title of the plaintiff to revive. 21 Such an answer 
 is impertinent when it describes and complains of irregularities 
 in the suit before the abatement. 22 Such an answer should be 
 signed by counsel; 23 and exceptions will lie to it for insufficiency, 
 scandal, and impertinence. 24 If it does not admit the plaintiff's 
 title to revive or state any circumstances which he is desirous of 
 controverting, it must, if the abatement has taken place after 
 decree or issue joined in the original cause, be replied to. 25 
 Otherwise, a separate replication will be unnecessary, and one 
 replication will put in issue both the allegations in that and 
 
 13 Sharon v. Terry, 36 Fed. It. 337. 18 Daniell's Ch. Pr. (2d Am ed.) 1711 ; 
 
 14 Daniell's Ch. Pr. (2d Am. ed.) 1710; Story's Eq. PI. § 808 a. 
 
 Lewis v. Bridgman, 2 Simons, 465. 19 Nanney v. Tottey, 11 Price, 117. 
 
 15 Hollingshead's Case, 1 P. Wms. 742; *° Gunnell v. Bird, 10 Wall. 304, 308; 
 Darnell's Ch. Pr. (2d Am. ed.) 1711. Fretz v. Stover, 22 Wall. 198, 204. 
 
 16 Daniell's Ch. Pr. (2d Am. ed.) 1710; 21 Langley v. Overton, 10 Simons, 345. 
 Coit v. Campbell, 82 N. Y. 509 ; Perry v. - 2 Wagstaff v. Bryan, 1 It. & M. 28. 
 Jenkins, 1 Myl. & Cr. 122; Mason v. Hart- 23 Daniell's Ch. Pr. (2d Am. ed.) 1712. 
 ford, P. & F. Ry. Co., 19 Fed. It. 53, 50; ~* Wagstaff v. Bryan, 1 R. & M. 28 : 
 Story's Eq. PI. § 831. Daniell's Ch. Pr. (2d Am. ed.) 1712. 
 
 17 Daniell's Ch. Pr. (2d Am. ed.) 1711. 25 Daniell's Ch. Pr. (2d Am. ed.) 1712.
 
 266 BILLS OF REVIVOR, ETC. [CHAP. XIV. 
 
 those iii the original answer. 26 In all other respects, the form 
 and the proceedings upon demurrers, pleas, and answers to bills 
 of revivor should conform as nearly as possible to those of and 
 upon similar pleadings to original bills. 27 A bill of revivor need 
 not be set down for a hearing, unless it prays other relief than a 
 mere revivor. 28 Where a bill of revivor seeks merely an ad- 
 mission of assets and a revivor, and the defendant admits assets, 
 the cause may proceed upon the order of revivor merely. 29 If, 
 however, any issue is joined upon the answer to it, a hearing 
 will be necessary. 30 The sole questions before the court when a 
 bill of revivor is filed are the competency of the parties by and 
 against whom it is filed, and the frame of the bill. 31 A cause is 
 not revived until an order of revivor has been entered. 32 
 
 § 182. Bills in the Nature of Bills of Revivor in general. — A bill 
 in the nature of a bill of revivor is a bill filed " to obtain the 
 benefit of a suit after abatement in certain cases which do not 
 admit of a continuance of the original bill." 1 " If the death of a 
 party whose interest is not determined by his death is attended 
 with such a transmission of his interest that the title to it, as 
 well as the person entitled, may be litigated in the court of chan- 
 ceiy," as in the case of a devise 2 or conveyance 3 of real estate, 
 "•the suit is not permitted to be continued by a bill of revivor. 
 An original bill upon which the title may be litigated must be 
 filed, and this bill will so far have the effect of a bill of revivor 
 that if the title of the representative substituted by the act of 
 the deceased party is established, the same benefit may be had 
 of the proceedings upon the former bill as if the suit had been 
 continued by a bill of revivor." 4 " The bill is said to be original 
 merely for want of that privity between the party to the former 
 and the party to the latter bill, though claiming the same in- 
 terest, which would have permitted the continuance of the suit 
 by bill of revivor. Therefore, when the validity of the alleged 
 
 26 Catton v. Earl of Carlisle, 5 Macld. 31 Bettes v. Dana, 2 Sumner, 383. 
 427 ; Daniell's Ch. Pr. (2d Am. ed.) 1712. 82 Atterbury v. Gill, 13 Off. Gaz. 276. 
 
 2? Daniell's Ch. Pr. (2d Am. ed.) 1711, § 182. i Mitford PI. ch. 1, § 3. See 
 
 17!2. Slack v. Walcott, 3 Mason, 508, 512; 
 
 28 Pruen v. Lunn, 5 Russ. 3 ; Daniell's Sharon v. Terry, 36 Fed. R. 337, 353. 
 Ch. Pr. (2d Am. ed.) 1713. 2 Slack v. Walcott, 3 Mason, 508. 
 
 29 Mitford's PI. ch. 1, § 3; Daniell's 3 Sharon v. Terry, 36 Fed. R. 337. 
 Ch. Pr. (2d Am. ed.) 1713. 4 Mitford's PI. ch. 1. § 3. See Slack v. 
 
 m Daniell's Ch. Pr. (2d Am. ed.) 1713 ; Walcott, 3 Mason, 508. 
 Mitford's PL ch. 1, § 3.
 
 § 183.] FRAME OF BILLS IN THE NATURE OF BILLS OF REVIVOR. 267 
 
 transmission of interest is established, the party to the new hill 
 shall be equally bound by, or have advantage of the proceedings 
 in the original bill, as if there had been such a privity between 
 him and the party to the original bill claiming the same interest; 
 and the suit is considered as pending from the time of the filing 
 of the original bill, so as to save the statute of limitations, to 
 have the advantage of compelling the defendant to answer 
 before an answer can be compelled to a cross-bill, and every 
 other advantage which would have attended the institution of 
 the suit by original bill, if it could have been continued by bill 
 of revivor merely." 5 So the pleadings filed and any testimony 
 taken in the original cause can be used in the same manner in 
 the second cause after a bill in the nature of a bill of revivor 
 has been filed. 6 Such a bill can only be filed for the purpose 
 of bringing in a person who claims in privity with the party 
 whose death caused the abatement. 7 Thus, if a bill is filed by a 
 devisee under a will, and afterwards a subsequent will is proved, 
 the devisee under the second will can in no way avail himself of 
 the proceedings in the suit ; for there is no privity between him 
 and the original plaintiff. If, however, a bill has been filed by 
 the devisor himself for some matter concerning the estate de- 
 vised, the second devisee may file a supplemental bill in the 
 nature of a bill of revivor, even if the first devisee have already 
 filed such a bill; for he derives his title to do so solely from 
 the devisor independently of the first devisee. 8 When the court 
 had jurisdiction of the original suit, a want of difference of 
 citizenship between the parties to the bill in the nature of a bill 
 of revivor will not be a defect in it. 9 
 
 § 183. Frame of Bills in the Nature of Bills of Revivor and Pro- 
 ceedings upon them. — A bill in the nature of a bill of revivor 
 " must state the original bill, the proceedings upon it, the abate- 
 ment, and the manner in which the interest of the party dead 
 has been transmitted ; and it must charge the validity of the 
 transmission, and state the rights which have accrued by it." 1 
 
 6 MitforcTs PI. ch. 1, § 3. 8 Oldham v. Eboral, Cooper Select 
 
 6 Slack v. Walcott, 3 Mason, 508 ; Vat- Cases, 27. 
 
 tier i'. Hinde, 7 Pet. 252, 266; Story's Eq. 9 Clarke v. Mathevvson, 12 Pet. 164; 
 
 PI. §§ 371-387; Daniell's Ch. Pr. (2d s. c. 2 Sumner, 262; Minnesota Co. v. 
 
 Am. ed.) 1719. St. Paul Co., 2 Wall. 600. 
 
 1 Darnell's Ch. Pr. 1720 ; Story's Eq. PI. § 183. » Mitford's Eq. PI. ch. 1, § 3. 
 § 385 ; Rylands v. Latouche, 2 Bligh, 585 ; 
 Tonkin v. Lethbridge, G. Cooper, 43.
 
 268 BILLS OF REVIVOR, ETC. [CHAP. XIV. 
 
 It usually prays that the original suit may be revived, and the 
 party filing it have the benefit of the former proceedings therein. 2 
 Probably a subpoena issued in accordance with its prayer may be 
 served upon the attorney of an absent defendant, who had 
 already appeared, in the same manner as a subpoena upon a bill 
 filed to stay proceedings at law. 3 Otherwise the form and the 
 proceedings upon bills in the nature of bills of revivor are the 
 same as those upon bills of revivor; 4 and the difference between 
 the two is practically one of mere nomenclature. 5 
 
 § 184. Bills of Revivor and Supplement. — A bill of revivor and 
 supplement is a bill which revives a suit after an abatement, and 
 at the same time supplies a defect which has arisen in it since its 
 institution. 1 Thus, where by the death of a defendant new rights 
 accrue to the plaintiffs, a bill of revivor and supplement is neces- 
 sary to state those rights; 2 and where, in a suit to restrain the 
 infringement of a patent, the complainant assigned his interest 
 and died, it was held improper for the assignee to revive the suit 
 by a bill of revivor, the court saying that a " supplemental bill," 
 but evidently intending thereby a bill of revivor and supplement, 
 must be filed. 3 It has been held in England that by such a bill 
 a defect apparent upon the face of the original bill cannot be 
 cured. 4 A bill of revivor and supplement is merely a compound 
 of a bill of revivor and a supplemental bill, and in its separate 
 parts must be framed and proceed in the same manner. 5 It 
 seems that it may be held good as to the revivor, and bad as to 
 the supplemental matter. 6 All parties to the original bill should 
 be made parties to a bill of revivor and supplement, although a 
 revivor is sought against but one defendant. 7 
 
 § 185. Supplemental Bills in the Nature of Bills of Revivor. — A 
 supplemental bill in the nature of a bill of revivor is a bill filed 
 to cure an abatement when the person by or against whom the 
 
 2 Daniell's Ch. Pr. 1721 ; Story's Eq. 8 Metal Stamping Co. v. Crandall, 18 
 PI. § 386. Off. Gaz. 1531. 
 
 3 Norton v. Hepwortli, 1 Hall & Tw. * Bampton v. Birchall, 5 Beav. 330; 
 158 ; Dunn v. Clarke, 8 Pet. 1, 2. See 8. c. on appeal, 1 Phil. 568. 
 
 § 96. 5 Mitford's PI. ch. 1, § 3 ; Story's Eq. 
 
 * Daniell's Ch. Pr. 1720, 1721 ; Rule 56. PI. §§ 387, 627; Daniell's Ch. Pr. 1722, 
 
 6 Grew v. Breed, 12 Met. (Mass.) 369. 1723; Pendleton v. Fay, 3 Paige (N. Y.j, 
 
 § 184. i Mitford's PL ch. 1, § 2 ; Story's 204. 
 
 Eq. PI. §§ 387, 627 ; Daniell's Ch. Pr. (2d 6 Randolph f. Dickerson, 5 Paige(N.Y.), 
 
 Am. ed ) 1722, 1723. 517. But see Bampton v. Birchall, 5 Beav. 
 
 2 Westcott v. Cady, 5 J. Ch. (N. Y.) 330; s. c. on appeal, 1 Phil. 568. 
 
 334, 342. 7 Lake v. Austwick, 4 Jur. 314.
 
 § 186.] WHAT RENDERS A SUIT DEFECTIVE. 2G9 
 
 suit is to be continued, although claiming under the individual 
 whose death caused the abatement, is not the representative 
 whom the law allows to be recognized, but is one whose title 
 could not have been litigated in the English Court of Chancery, 
 but might have been disputed before another tribunal. 1 It 
 has also been held that where during the pendency of a suit a 
 trustee died, and the court appointed a successor to him, the 
 new trustee could only be brought in by a supplemental bill in 
 the nature of a bill of revivor. 2 Upon the death of an assignee 
 in bankruptcy or insolvency his successor is brought in by a bill 
 of this character. 3 Such a bill, however, although designated 
 as being in the nature of a bill of revivor, is neither more nor 
 less than a supplemental bill. 4 
 
 § 186. What renders a Suit defective. — If, after the institution 
 of a suit in equity, a person who is a necessary party thereto 
 comes into being, or any other event occurs, which, without 
 abating the suit, occasions such an alteration in the interest of 
 any of the original parties, or gives any person not a party such 
 an interest therein, as makes it necessary that the change of in- 
 terest shall be brought to the attention of the court, and the per- 
 son not already a party brought before it, the suit is said to become 
 defective. 1 The circumstances causing the change of interest 
 must then be alleged, and the new party brought in by a supple- 
 mental bill, or a bill in the nature of a supplemental bill. 2 An 
 assignment, whether voluntary 3 or by operation of law, 4 during 
 the pendency of a suit, of the whole or a part of a party's interest 
 therein, does not make the suit defective, nor affect the rights of 
 the other parties, since the assignee takes the same rights and is 
 subject to the same obligations as his assignor, and is equally 
 bound or benefited by the decree. The assignee need not, there- 
 fore, be made a party, 5 unless the assignment disables the assignor 
 from performing the decree of the court, when he should be 
 brought before it ; 6 but he may at any time be brought in at his 
 
 §185. i Daniell's Ch. Pr. (2dAm.ed.) PI. ch. 1, § 3; Daniell's Ch. Pr. (2d 
 
 1721. Am. ed.) 16G3. 
 
 2 Greenleaf v. Queen, 1 Pet. 138, 148. 3 Ex parte Railroad Co., 95 U. S. 221. 
 
 8 Daniell's Ch. Pr. (2d Am. ed.) 1721. 4 Hewett v. Norton, 1 Woods, 68; 
 
 4 Daniell's Ch. Pr. (2d Am. ed.) 1721. Eyster v. Gaff, 91 U. S. 521. 
 
 §186. i Jones v. Jones, 3 Atk. 217; 8 Eyster v. Gaff. 91 U. S. 521 ; Ex parte 
 
 Mitfnrd's PI. ch. 1, § 3 ; Daniell's Ch. Pr. Railroad Co., 95 U. S. 221. 
 
 (2d Am. ed.) 1663. 6 Daniell's Ch. Pr. (2d Am. ed.) 1G64. 
 
 2 Jones v. Jones, 3 Atk. 217 ; Mitford's
 
 270 BILLS OF REVIVOE, ETC. [CHAP. XIV. 
 
 own request." In a case in admiralty, it was held that a suit 
 brought in the name of Napoleon III., on account of an injury to 
 property, — a French ship held by him in his sovereign capa- 
 city, — did not abate by his deposition and the succession of the 
 French Republic to the French Empire, and that the name of 
 the plaintiff could at any time be changed by order. 8 
 
 § 187. Supplemental Bills. — A supplemental bill, according to 
 Lord Redesdale, is merely an addition to the original bill. 1 At first 
 supplemental bills were filed, not only for the purposes mentioned 
 in the last section, but also to supply such defects as might have 
 been cured by amendment after the time to perfect a bill by 
 amendment had expired. 2 Now, however, that amendments may 
 be allowed at any stage of a suit, 3 they are no longer used for 
 that purpose ; and as the fact that the matter pleaded in a sup- 
 plemental might have been inserted in the original bill by amend- 
 ment, was also a good ground of demurrer, 4 it is very doubtful 
 whether they could be any longer so used. 5 When an event 
 happens subsequently to the filing of an original bill which gives 
 a new interest in the matter in dispute to any person, whether or 
 not already a party, without depriving all of the original plain- 
 tiffs suing in their own right of their interest, the defect arising 
 from this event may be supplied by a supplemental bill. 6 A re- 
 mainder-man may also, in this same manner, be made a party to a 
 suit brought by or against a tenant in tail upon the determination 
 of the latter's estate, and the acquisition by the former of the 
 present interest to the property in litigation. 7 A supplemental 
 bill which brings in a new party may be original as to him, but 
 supplemental as to the rest. 8 If, pending a suit, a tenant in tail 
 of. an estate thereby affected by it is born; 9 or if pending a suit 
 against a husband and wife concerning the latter's estate, the 
 
 " Foster i>. Deacon, Mad. & Geld. 59; 8 Rule 29. 
 Evster v. Gaff, 91 U. S. 521 ; Ex parte 4 Mitford's PI. ch. 2, § 2, part 1; Dan- 
 
 Uailroad Co., 95 U. S. 221, 226. iell's Ch. Pr. (2d Am. ed.) 1681. 
 
 8 The Sapphire, 11 Wall. 164. See 5 See, however, Davies v. Williams, 1 
 
 Allen v. The Mayor, 7 Fed. R 483; s. c. Simons, 5. 
 
 18 Rlatchf. 239 ; Hemingway v. Stansell, 6 Hobson v. McArthur, 10 Pet. 182; 
 
 1(10 U. S. 399, 402. Daniell's Ch. Pr. 1603-1675; Story's Eq. 
 
 § 187. i Mitford's PI. ch. 1, § 2. PI. §§ 336-343 ; Mitford's PI. ch. 1, § 3. 
 
 2 Mitford's PI. ch. 1, § 3; Daniell's Ch. 7 Lloyd v. Johnes, 9 Ves. 37 ; Daniell's 
 
 Pr. (2d Am. ed.) 1653-1063; Story's Eq. Ch. Pr. (2d Am. ed.) 1608-1672. 
 PI. § 334 ; Jenkins v. Eldredge, 3 Story, 8 Mitford's PI. ch. 1, § 3. 
 299; Mosgrove v. Kountze, 14 Fed. R. 9 Mitford's PI. ch. 1, § 3. 
 315.
 
 § 187.] SUPPLEMENTAL BILLS. 271 
 
 man dies, and the wife thus acquires a new interest ; 10 or if one 
 of two or more plaintiffs suing in their own right is entirely 
 deprived of his interest, by any other event than an assignment 
 of it : u or if the interest of a sole plaintiff suing in a representa- 
 tive capacity entirely determines by death or otherwise, and 
 some other person becomes entitled to the same property under 
 the same title, 12 — the defect in the suit thereby occasioned must 
 be cured by a supplemental bill. So, if pending a suit a party 
 becomes a lunatic, or if pending a suit by or against a lunatic 
 and his committee a new committee is appointed, the committee 
 should be brought in by a supplemental bill. 13 According to 
 Lord Redesdale, upon the death of one suing in behalf of himself 
 and others in the same position with him, if his representative 
 do not choose to file a bill of revivor, any one of the class on 
 behalf of whom he sued may revive ; 14 but it seems that the more 
 proper course would be for the one wishing to continue the suit 
 to do so by means of a supplemental bill, which he can only 
 obtain leave to file upon notice to the representatives of the 
 deceased plaintiff, as well as to the defendants. 15 Where, how- 
 ever, a suit brought by one in a representative capacity becomes 
 defective by his death, and another acquires the right to continue 
 it under a different title, — as upon the death of an executor or 
 administrator succeeded by an administrator de bonis non, 
 according to Lord Redesdale and Daniell, the latter may con- 
 tinue by a bill of revivor, 10 according to Judge Story, only by 
 a bill in the nature of a bill of revivor ; 17 in no case by a sup- 
 plemental bill. A supplemental bill must not be inconsistent 
 with the original bill. Thus, where the original bill stated 
 that the defendants claimed to be a corporation, but were not 
 incorporated, it was held improper to file a supplemental bill 
 claiming relief upon the ground that the defendants were a 
 corporation. 18 
 
 10 Daniell's Ch. Pr. (2d Am. ed.) 1663. Sim & S. 401 ; Dixon v. Wyatt, 4 Madd. 
 
 11 Mitford's PI. ch.l, § 3; Daniell'sCh. 892 ; Daniell's Ch. Pr. (2d Am. ed.) 1071, 
 Pr. (2d Am. ed.) 1664. 1G72; Story's Eq. PI. § 365. 
 
 12 Mitford's PI. ch. 1, § 3 ; Daniell's Ch. 1S Mitford's PI. ch. 1, § 3 ; Daniell's Ch. 
 Pr. (2d Am. ed.) 1665; Marriott v Tarp- Pr. (2d Am. ed.) 1665; Owen v. Curzon, 
 ley, 9 Simons, 279. 2 Vern. 237 ; Iluggins v. York Buildings 
 
 13 Mitford's PI. ch. 1, § 3 ; Daniell's Ch. Co., 2 Eq. Ahr. ."., pi. 14. 
 
 Pr. (2d Am. ed.) 1664. " Story's Eq. PI. § 382, n. 1. 
 
 14 Mitford's Pi. ch. 1, § 3. is Maynard v. Green, 30 Fed. R. 643. 
 16 Houlditch v. Marquis Donncgall, 1
 
 272 BILLS OF REVIVOK, ETC. [CHAP. XIV. 
 
 § 188. Parties and Frame of a Supplemental Bill. — As a general 
 rule, all parties to the original suit must be made such to a sup- 
 plemental bill filed to supply a defect in it ; : unless such a bill 
 be filed to bring in a mere formal defendant, or to allege matter 
 which cannot possibly affect a decree against more than one 
 defendant, when the others need not be made parties to it. 2 An 
 objection for want of parties must, however, be made by demurrer, 
 plea, answer, or when the motion for leave to file the bill is 
 argued. It will be too late to make it at the hearing. 3 If the 
 court had jurisdiction of the original bill it will take jurisdiction 
 of the supplemental bill, no matter what may be the citizenship 
 of the new parties ; 4 provided at least that they have a right to 
 sue and be sued in a Federal court. 5 " A supplemental bill must 
 state the original bill, and the proceedings thereon, and if the 
 supplemental bill is occasioned by an event subsequent to the 
 original bill, it must state that event, and the consequent alter- 
 ation with respect to the parties. 6 The equity rules provide, 
 that it shall not be necessary in any supplemental bill to set 
 forth any of the statements in the original suit, unless the special 
 circumstances of the case require it." 7 This, however, although 
 copied from an English Chancery order, 8 is merely a reaffirmance 
 of the pre-existing practice. 9 If the bill brings in no new party, 
 there is never any need of its containing any of the statements 
 in the original pleadings. 10 When, however, it brings in a new 
 party, as it is in fact original as to him, it must state enough of 
 the former proceedings to show an equity against him. 11 This 
 need not be averred positively ; but it will be sufficient to state 
 that such matters were alleged in the former bill or answer, 12 
 and only so much of the original pleadings need be averred as 
 
 § 188. 1 Daniell's Ch. Pr. (2d Am. ed.) Tramway Company of Omaha, 33 Fed. R. 
 
 1678 ; Jones v. Jones, 3 Atk. 217 ; Dyson 689. 
 
 v. Morris, 1 Hare, 413 ; Jones v. Howells, 6 Mitford's PL ch. 1, § 3. 
 
 2 Hare, 342. 7 Rule 58. 
 
 2 Greenwood v. Atkinson, 5 Simons, s See Order 49 in Chancery, of August, 
 419 ; Dyson v. Morris, 1 Hare, 413 ; Wil- 1841. 
 
 kinson v. Fowkes, 9 Hare, 193; Story's 9 Daniell's Ch. Pr. (2d Am. ed.) 1675- 
 
 Eq. PI. § 343. 1678. 
 
 3 Jones v. Jones, 3 Atk. 217. i0 Daniell's Ch. Pr. (2d Am. ed.) 
 * Minnesota Co. v. St. Paul Co., 2 1675. 
 
 Wall. 609. See § 21. u Baldwin t>. Mackown, 3 Atk. 817; 
 
 5 See Adams Express Co. v. Denver Daniell's Ch. Pr. (2d Am. ed.) 1675,1676. 
 
 & R. G. Railway Co., 16 Fed. R. 712; n Lloyd v. Johnes, 9 Ves. 37 ; Daniell's 
 
 Omaha Horse Railway Company v. Cable Ch. Pr. (2d Am. ed.) 1676.
 
 § 189.] PROCEEDINGS UPON SUPPLEMENTAL BILLS. 273 
 
 suffice to show an equity against the new party. 13 The prayer 
 of a supplemental bill is adapted to the object for which it is 
 exhibited. It formerly always concluded with a prayer for pro- 
 cess in the usual form. 14 Whether this is now necessary when 
 no new defendants are brought in may be doubted. 15 It should 
 be signed by counsel, and, in other respects, conform to the form 
 of an original bill. 16 A supplemental bill may be filed at any 
 time during the progress of a suit; as well after as before a 
 decree, 17 and even dining the pendency of an appeal. 18 It seems, 
 however, that if the matters which make it necessary or advisa- 
 ble were known to the party filing it before the entry of the 
 decree, afterwards it will be too late ; 19 though such an objec- 
 tion must be taken before the hearing upon the supplemental 
 bill. 20 
 
 § 189. Proceedings upon Supplemental Bills. — "Whenever any 
 suit in equity shall become defective from any event happening 
 after the filing of the bill (as, for example, by change of interest 
 in the parties), or for any other reason a supplemental bill, or a 
 bill in the nature of a supplemental bill, may be necessary to be 
 filed in the cause, leave to file the same may be granted by any 
 judge of the court on any rule-day, upon proper cause shown 
 and due notice to the other party. And if leave is granted to 
 file such a supplemental bill, the defendant shall demur, plead, 
 or answer thereto, on the next succeeding rule-day after the sup- 
 plemental bill is filed in the clerk's office, unless some other time 
 shall be assigned by a judge of the court." 1 The petition for 
 leave to file such a bill need not state the averments which are 
 intended to be inserted therein ; but must state sufficient to 
 advise the opposite parties and the court of the ground upon 
 which the relief is sought. 2 It has been held that upon the 
 return of the order to show cause an objection which is a proper 
 
 13 Vigers v. Lord Audley, 9 Simons, 72; Woodward, 1 Dickons, 33; Dormer v. 
 Attorney-General v. Foster, 2 Hare, 81 ; Fortescue, 3 Atk. 124. 
 
 Daniell's Ch. Pr. (2d American ed.) 1676, 18 Woodward v. Woodward, 1 Dickens, 
 
 1677. 33. 
 
 14 Daniell's Ch. Pr. 1680. 19 Pendleton v. Fay, 3 Paige (N. Y. ) 
 
 15 See Shaw v. Bill, 95 U. S. 10. 204 ; Story's Eq. PI. § 338 a. 
 
 J 6 Daniell's Ch. Pr. (2d Am. ed.) 1680. » Fulton Bank r. New York & Sharon 
 
 « Daniell's Ch. Pr. (2d Am. ed.) 1659, Canal Co., 4 Paige (N. Y.), 127. 
 
 1660; Story's Fq. PI. §§ 338, 338 a; §189. * Rule 57. 
 
 2 Barbour'^ Ch.Pr. 167; 6'IIara v. Shep- 2 Parkhurst v. Kinsman, 2 Blatchf. 
 
 herd, 3 Maryland Ch. Dee. 806; Jenkins C. C. 72. 
 
 v. Eldredge, 3 Story, 209; Woodward v. 
 
 18
 
 274 BILLS OF REVIVOR, ETC. [CHAP. XIV. 
 
 ground for a demurrer cannot be raised. 3 A motion will not lie 
 to take a supplemental bill off the file for irregularity, upon the 
 ground that it does not state supplemental matter. 4 The proper 
 course in such a case is to demur, or to object to the order allow- 
 ing it to be filed. 5 Such a motion might, however, be granted, if 
 a bill filed should be different from that which the order allowed. 
 No subpoena need be issued upon such a bill unless new defend- 
 ants are to be brought in ; and then they only need be served 
 with process. 6 Such a subpoena is in the same form as one 
 issued upon the filing of an original bill, except that it speci- 
 fies the nature of the bill upon which it is issued. 7 A de- 
 murrer to a supplemental bill is in general subject to the 
 same rules, except as to the time of filing the same, and will 
 lie for the same reasons as if the bill were original ; 8 but there 
 are some grounds of demurrer peculiar to bills of this class. 
 Thus, a demurrer will lie if it appears upon the face of the 
 bill that it pleads matters which occurred before the institution 
 of the suit, and which it is not too late to insert by amendment 
 into the original bill. 9 A supplemental bill is also demurrable 
 when filed to introduce a claim founded upon a title entirely 
 distinct from that in the original bill ; as, when a man first sued 
 claiming as heir-at-law, and afterwards sought by supplemental 
 bill to plead a purchase of the interest of the true heir-at-law. 10 
 A supplemental bill is also demurrable, if it is brought against a 
 person who neither has nor claims any interest in the subject- 
 matter of the original suit. 11 In a suit to restrain the infringement 
 of a patent, " where the patent expires and is extended pending 
 the litigation, and the infringement by the respondent is con- 
 tinued in respect to the extended patent, a supplemental bill is a 
 proper pleading to prolong the suit, as in that state of the case 
 the complainant may well claim, if he is the original and first 
 inventor of the improvement, to recover of the respondent the 
 
 3 Oregon & Transcontinental Co. v. 8 DanielPs Ch. Pr. (2d Am. ed.) 1681. 
 Northern Pacific Ry. Co., 32 Fed. R. 428. 9 Mitford's PI. ch. 2, § 2, part 1 ; 
 See Oregon & Transcontinental Co. v. Story's Eq. PI. § 614 ; Stafford v. How- 
 Northern Pac. R. Co., 32 Fed. R. 482. lett, 1 Paige (N. Y.), 200. 
 
 4 Bowyer v. Bright, 13 Price, 316; 10 Tonkin v. Lethhridge, G. Cooper, 43 ; 
 Daniell's Ch. Pr. (2d Am. ed.) 1682. Daniell's Ch. Pr. (2d Am. ed.) 1681. 
 
 5 Bowyer v. Bright, 13 Price, 316; u Baldwin v. Mackown, 3 Atk. 817; 
 Daniell's Ch. Pr. (2d Am. ed.) 1682. Mitford's PI. ch. 2, § 2, part 1; Daniell's 
 
 e Shaw v. Bill, 95 U. S. 10, 14. Ch. Pr. (2d Am. ed.) 1681. 
 
 t Daniell's Ch Pr. (2d Am. ed.) 1680. 

 
 § 189.] PROCEEDINGS UPON SUPPLEMENTAL BILLS. 275 
 
 gains and profits made by the infringement, both before and sub- 
 sequent to the extension ; but the rule is otherwise where the 
 original patent is surrendered, as the effect of the surrender is to 
 extinguish the patent, and hence it can no more be the founda- 
 tion for the assertion of a right than can a legislative act which 
 has been repealed without any saving clause of pending actions. 
 Consequently, the infringement of the reissued patent becomes 
 a new cause of action for which, in the absence of anj' agree- 
 ment or implied acquiescence of the respondent, no remedy can 
 be had except by the commencement of a new suit." 12 Where, 
 however, the defendant made no objection to the complainant's 
 filing a supplemental bill setting forth an infringement of the 
 reissued patent, but filed to it a plea similar to that which he 
 had previously filed to the original bill, it was held, that he had 
 waived his right to object upon appeal that the suit was improp- 
 erly continued, and that an original bill should have been filed. 13 
 After the complainant had finished taking testimony in a suit 
 for the infringement of a patent, and an account, he was allowed 
 to file a supplemental bill setting up infringements which had 
 occurred after the filing of the original bill. 14 
 
 Any objections to a supplemental bill which do not appear 
 upon its face may be taken by plea or answer, which, in general, 
 are subject to the same rules as pleas and answers to original 
 bills. 15 If a defendant has not answered the original bill, his 
 successor may be called upon in the supplemental bill to do so. 16 
 When that is done, the usual course is to include the answer 
 to the original and that to the supplemental bill in the same 
 pleading; 17 although it is not absolutely irregular to separate 
 them. 18 A defense cannot be pleaded to a supplemental bill which 
 has previously been pleaded to the original bill, and overruled. 19 
 If the plaintiff wish to join issue upon averments in the answer, 
 he may file a replication to it. 20 If there has been no replication 
 filed in the original suit, however, a single general replication 
 will apply to the whole record, and put at issue the allegations 
 
 12 Mr. Justice Clifford in Reedy v. 15 Daniell's Ch. Pr. (2d Am. ed.) 1G82. 
 Scott, 23 Wall. 352,364,365. See also 16 Vigera v. Lord Audley, 9 Simons, 408. 
 Fry v. Quinlan, 13 Blatchf. 205; Jones v. 17 Vigera v. Lord Audley, 9 Simons, 408. 
 Barker, 11 Fed. R. 507. But compare 1S Sayle v. Graham, 5 Simons, 8. 
 Woodworth v. Stone, 3 Story, 749 ; Reay 19 Pentlarge v. Pentlarge, 22 Fed. R. 
 v. Raynor, 10 Fed. R. 308. 412. 
 
 13 Reedy v. Scott, 23 Wall. 352. 20 Daniell's Ch. Pr. (2d Am. ed.) 1G83; 
 M Turrell v. Spaeth, 9 Off. Gaz. 1163. Perkins v. Hendry x, 31 Fed. R. 522.
 
 276 BILLS OF REVIVOR, ETC. [CHAP. XIV. 
 
 in both answers. 21 If the new matter in the supplemental bill is 
 not admitted, it must be proved ; or the bill will be dismissed 
 with costs. 22 For this purpose evidence may be taken and a hear- 
 ing had as upon an original bill. 23 If there has been no previous 
 hearing and decree, both bills may be brought to a hearing 
 together, and a single decree will suffice for both. 24 If the sup- 
 plemental bill is heard alone, the evidence taken in the original 
 suit may be read in support of, or in opposition to it. 25 The 
 effect of a supplemental bill when sustained is to put the suit 
 in the same condition as if the supplemental matter had been 
 alleged, and the new party, if any, brought in at its institution. 26 
 § 190. Bills in the Nature of Supplemental Bills in general. — A 
 bill in the nature of a supplemental bill is a bill filed to obtain 
 the benefit of a suit, either after an abatement which cannot be 
 cured by a bill of revivor or a bill in the nature of a bill of re- 
 vivor, or after the suit has become defective in cases which do 
 not admit of a supplemental bill to supply that defect. 1 Cases 
 frequently occur in practice where the interest of an original 
 party to a suit is completely determined, and another person 
 becomes interested in the subject-matter by a title not derived 
 from the other, but in such a manner as to make it proper that 
 the benefit of the former proceedings should be had by or against 
 the latter, without incurring the expense of commencing an en- 
 tirely new proceeding. In such a case, the benefit of the former 
 proceedings may be obtained by means of a bill called an original 
 bill in the nature of a supplemental bill, or a bill in the nature of 
 a supplemental bill. 2 Such a bill must also be filed to bring into 
 a suit the assignee of a sole plaintiff who had acquired his inter- 
 est during its pendency. 3 The reason given for this is the doc- 
 trine of maintenance, in consequence of which "it is not enough 
 for the new plaintiff to state that his assignor instituted a suit 
 and assigned to him the benefit of it ; he must show that his 
 
 21 Cattonc. Earl of Carlisle, 5 Madd. 427. §190. 1 Mitford's PI. ch. 1, § 3; 
 
 22 Daniell's Ch. Pr. (2d Am. ed.) 1683; Campbell v. New York, 35 Fed. R. 14; 
 Pedrick v. White, 1 Met. (Mass.) 76. Tappan v. Smith, 5 Biss. 73. 
 
 23 Lloyd v. Johnes, 9 Ves. 37 ; Daniell's 2 Daniell's Ch. Pr. (2d Am. ed.) 1685 ; 
 Ch. Pr. (2d Am. ed.) 1683. Mitford's PI. ch. 1, § 3. 
 
 '-'* Mitford's PI. ch. 1, § 3; Daniell's 3 Daniell's Ch. Pr. (2d Am. ed.) 1667; 
 
 Ch. Pr. (2d Am. ed.) 1684, 1685. Campbell v New York, 35 Fed. R. 14; 
 
 2 » Daniell's Ch. Pr. (2d Am. ed.) 1684; Tappan v. Smith, 5 Biss. 73. But see 
 
 Turrell v. Spaeth, 9 Off. Gaz. 1163. Hoxie v. Carr, 1 Sumner, 173 ; Sedgwick 
 
 a Daniell's Ch. Pr. (2d Am. ed.) 1666, v. Cleveland, 7 Paige (N. Y.), 290. 
 1667.
 
 § 192.] BILLS IN THE NATUEE OF SUPPLEMENTAL BILLS. 277 
 
 assignor had the property in respect of which the suit was insti- 
 tuted, and that that property has been assigned and carries with 
 it the right to sue." 4 So, where a defendant dies before appear- 
 ance or a decree against him pro confesso, his successor can only 
 be brought in by a bill in the nature of a supplemental bill, 
 which, however, is considered merely supplemental as to the 
 other defendants. 5 
 
 § 191. Frame of a Bill in the Nature of a Supplemental Bill. — 
 A bill in the nature of a supplemental bill " must state the 
 original bill, the proceedings upon it, the event which has deter- 
 mined the interest of the party by or against whom the former 
 bill was exhibited, and the manner in which the property has 
 vested in the person become entitled. It must then show the 
 ground upon which the court ought to grant the benefit of the 
 former suit to or against the person so become entitled, and pray 
 the decree of the court adapted to the case of the plaintiff in the 
 new bill." * It will not be impertinent for it to restate allega- 
 tions of the bill or answer in the original suit, nor to charge 
 new matter which occurred before the original bill was filed, for 
 the purpose of meeting a defense in the original answer. 2 But a 
 bill in the nature of a supplemental bill need contain no more of 
 the allegations in the original bill than suffices to show a cause 
 of action against the defendants to it. 3 Otherwise, its form 
 should be, as far as possible, in compliance with that of an 
 original bill. If, however, its object be merely to obtain the 
 benefit of the proceedings in the original suit, the want of the 
 difference of citizenship necessary to support an independent 
 original bill will not deprive the court of jurisdiction of it, pro- 
 vided the first suit were properly brought. 4 
 
 § 192. Proceedings upon Bills in the Nature of Supplemental 
 Bills. — A bill in the nature of a supplemental bill is filed in the 
 same manner as a supplemental bill, and the same rule governs 
 the time of the filing of pleadings to it. 1 Otherwise, proceedings 
 
 4 White on Supplement and Reviyor, Attorney-General v. Foster, 2 Hare, 
 126, 174; Daniell's Ch. Pr. (2d Am. ed.) 81 ; Daniell's Ch. Pr. (2d Am. ed.) 1667, 
 16G7. 1608. 
 
 6 United States v. Fields, 4 Blatchf. 8 Daniell's Ch. Pr. (2d Am. ed.) 1675- 
 
 326 ; Crowfoot v. Mander, 9 Simons, 896 ; 1G77 ; Vigers v. Lord Audley, 9 Simons, 
 
 72. 
 
 Asbee v. Shipley, Mad. & Geld. 296; 
 aniell's Ch. Pr. (2d Am. ed ) 1673. 
 § 191. i Mitford's PI. eh. 1, § 3. 
 2 Woods v. Woods, 10 Simons, 197 ; § 192. » Rule 57. See § ISO. 
 
 Daniell's Ch. Pr. (2d Am. ed ) 1673. 4 Minnesota Co. v. St. Paul Co., 2 
 
 § 191. i Mitford's PI. ch. 1, § 3. Wall. 609.
 
 278 BILLS OF REVIVOR, ETC. [CHAP. XIV. 
 
 upon bills in the nature of supplemental bills resemble those 
 upon independent original bills. According to Lord Redesdale, 
 "a new defense may be made; the pleadings and depositions 
 cannot be used in the same manner as if filed or taken in the 
 same cause ; and the decree, if any has been obtained, is no 
 otherwise of advantage than as it may be an inducement to the 
 court to make a similar decree." 2 As has been remarked by 
 Lord Eldon, this passage contains an obscurity of language which 
 is due to an obscurity in the subject. 3 But the probable meaning 
 and the view of the matter best supported by authority is, that 
 upon the filing of what is called a bill in the nature of a supple- 
 mental bill, no further benefit of the proceedings in the original 
 suit can be obtained than would be if it were styled merely an 
 original bill ; and the admission of the evidence and admissions 
 and the benefit of the decree in the former suit will only be 
 allowed when the parties to the second are in privity with those 
 to the first suit. 4 
 
 2 Mitford's PI. ch. 1, § 3. * Daniell's Ch. Pr. (2d Am. ed.) 1685- 
 
 3 Lloyd v. Johnes, 9 Ves. 37, 50. 1688. 

 
 § 195.] MOTIONS OF COURSE. 279 
 
 CHAPTER XV. 
 
 INTERLOCUTORY APPLICATIONS AND PETITIONS. 
 
 § 193. Definition and Classification of Interlocutory Applications. 
 — An interlocutory application is a request, not incorporated in 
 a bill, made to the court for its interference in a matter arising in 
 a cause either before or after a decree. An interlocutory appli- 
 cation is made by motion on petition. 
 
 § 194. Definition and Classification of Motions. — A motion has 
 been defined as " an application either by a party or his coun- 
 sel, not founded upon any written statement addressed to the 
 court." 1 But the rules of the Supreme Court of the United 
 States provide that " all motions hereafter made to the court 
 shall be reduced to writing, and shall contain a brief statement 
 of the facts and objects of the motion." 2 And most motions 
 are supported by affidavits. Motions are either of course or 
 special. Special motions are either ex parte or upon notice. 
 
 § 195. Motions of Course. — Motions of course are those which, 
 by some rule or practice of the court, are invariably granted with- 
 out notice, and to which no opposition is allowed. 1 In Federal 
 equity practice, the term is usually confined to such motions as 
 are granted as of course by the clerk without the intervention 
 of a judge of the court. 2 The equity rules provide that " all 
 motions and applications in the clerk's office for the issuing of 
 mesne process and final process to enforce and execute decrees ; 
 for filing bills, answers, pleas, demurrers, and other pleadings ; 
 for making amendments to bills and answers ; for taking bills pro 
 confesso ; for filing exceptions ; and for other proceedings in the 
 clerk's office which do not by the rules hereinafter prescribed 
 require any allowance or order of the court, or of any judge 
 thereof, shall be deemed motions and applications grantable of 
 
 § 194. i Daniell's Ch. Pr. (2d Am. ed.) § 195. > Daniell's Ch. Pr. (2d Am. ed.) 
 
 1787. See the language of Folger, J., in 1599; United States v. Parrott, 1 McAll. 
 
 Shaft r. Phoenix Mutual Life Ins. Co., 67 447, 454. 
 N. Y. 544, 547. 2 Robinson v. Satterlee, 3 Saw. 134, 
 
 2 Supreme Court Rule G. 141.
 
 280 INTERLOCUTORY APPLICATIONS AND PETITIONS. [CHAP. XV. 
 
 course by the clerk of the court. But the same may be sus- 
 pended, or altered, or rescinded by any judge of the court, upon 
 special cause shown." 3 The order dismissing a bill for an omis- 
 sion to duly file a replication is an order as of course. 4 It has 
 been held that an order for the issue of a commission is not. 5 
 " The clerk's office shall be open, and the clerk shall be in at- 
 tendance therein, on the first Monday of every month, for the 
 purpose of receiving, entering, entertaining, and disposing of all 
 motions, rules, orders, and other proceedings, which are grantable 
 of course and applied for, or had by the parties or their solici- 
 tors, in all causes pending in equity, in pursuance of the rules 
 hereby prescribed." 6 " All motions, rules, orders, and other pro- 
 ceedings made and directed at chambers, or on rule-days at the 
 clerk's office, whether special or of course, shall be entered by the 
 clerk in an order book, to be kept at the clerk's office, on the 
 day when they are made and directed, which book shall be open 
 at all office hours to the free inspection of the parties in any suit 
 in equity, and their solicitors. And, except in cases where per- 
 sonal or other notice is specially required or directed, such entry 
 in the order-book shall be deemed sufficient notice to the parties 
 and their solicitors, without further service thereof, of all orders, 
 rules, acts, notices, and other proceedings entered in such order- 
 book, touching any and all the matters in the suits to and in 
 which they are parties and solicitors." " 
 
 § 196. Special Motions without Notice. — A special motion is a 
 motion which can only be granted by a judge of the court under 
 special circumstances or in his discretion. 1 Such motions are 
 either upon notice or without notice. Orders granted upon 
 motions without notice are said to be ex parte ; and the same 
 term is applied to the motions upon which they are granted. 
 An ex parte special motion must be supported by an affidavit. 2 
 Ex parte special motions are not common. 3 They are usually 
 granted to prevent some irreparable injury to the moving party 
 which would otherwise occur within the time limited for notice, 
 
 s Rule 5. 1789; United States v. Parrott, 1 McAll. 
 
 * Robinson v. Satterlee, 3 Saw. 134, 447, 454. 
 141. 2 Daniell's Ch. Pr. (2dAm.ed.) 1789. 
 
 5 United States v. Parrott, 1 McAll. 8 McLean v. The Lafayette Bank, 3 
 447. McLean, 503; United States v. Parrott, 
 
 6 Rule 2. 1 McAll. 447 ; Marshall v. Mellersh, 5 
 » Rule 4. Beav. 496 ; Gray v. Chicago, la. & Neb. 
 § 196. i Daniell's Ch. Pr. (2d Am. ed.) R. R. Co., 1 Woolw. 63.
 
 § 196.] SPECIAL MOTIONS WITHOUT NOTICE. 281 
 
 when the same is required ; and the court should always lond a 
 willing ear to an application to discharge or set aside an ex parte 
 order. 4 Writs of ne exeat republica are usually granted ex parte. 6 
 So are applications for extensions of time to plead, or take other 
 proceedings in a cause. The equity rules provide that " when- 
 ever an injunction is asked for by the bill to stay proceedings at 
 law, if the defendant do not enter his appearance, and plead, 
 demur, or answer to the same within the time prescribed there- 
 for bv these rules, the plaintiff shall be entitled as of course, 
 upon motion, without notice, to such injunction. But special 
 injunctions shall be grantable only upon due notice to the other 
 party by the court in term, or by a judge thereof in vacation, 
 after a hearing, which may be ex parte, if the adverse party does 
 not appear at the time and place ordered. In every case 
 where an injunction — either the common injunction or the special 
 injunction — is awarded in vacation, it shall, unless previously 
 dissolved by the judge granting the same, continue until the 
 next term of the court, or until it is dissolved by some other 
 order of the court." 6 The Revised Statutes, however, make an 
 exception to this rule, in providing that " whenever notice is 
 given of a motion for an injunction out of a Circuit or District 
 Court, the court or a judge thereof may, if there appears to be 
 danger of irreparable injury from delay, grant an order restrain- 
 ing the act sought to be enjoined until the decision upon the 
 motion ; and such order may be granted with or without secu- 
 rity, in the discretion of the court or judge." 7 The rule was, 
 moreover, thus construed by Mr. Justice Miller : " The justices 
 of the Supreme Court have power to grant injunctions which do 
 not expire by the commencement of the next succeeding terra. 
 To injunctions thus granted, the latter part of the rule applies, 
 namely, — that they continue until dissolved by some other 
 order of the court. To injunctions granted by the judges 01 
 the district courts, the other alternative of the disjunctive sen- 
 tence applies, merely reiterating the provision of the statute, that 
 they continue till the next term of the court, unless otherwise 
 ordered by the court." 8 Ex parte orders may be obtained at 
 
 4 Dantell's Ch. Pr. (2d Am. ed.) 1789, 6 Rule 55. See also Yuengling v. John- 
 
 1790 ; Isnard v. Cazeaux, 1 Paige (N. Y.), son, 1 Hughes, 607. 
 39 ; Hart v. Small, 4 Paige (N. Y.), 551. 7 U. S. R. S. § 718. 
 
 6 Collinson v. , 18 Ves. 353 ; Dan- 8 Gray v. Chicago, la. & Neb. R. R. Co., 
 
 fell's Ch. Pr. (2d Am. ed.) 1789, 1937. 1 Woolw. 63, 68.
 
 282 INTERLOCUTORY APPLICATIONS AND PETITIONS. [CHAP. XV. 
 
 any time and in any place within the jurisdiction of the judge, 
 whether in court or elsewhere. 9 
 
 § 197. Notice of Motion. — The equity rules provide that " all 
 motions for rules or orders and other proceedings, which are not 
 grantable of course or without notice, shall, unless a different 
 time be assigned by a judge of the court, be made on a rule-day, 
 and entered in the order-book, and shall be heard at the rule-day 
 next after that on which the motion is made. And if the adverse 
 party, or his solicitor, shall not then appear, or shall not show 
 good cause against the same, the motion may be heard by any 
 judge of the court ex parte, and granted, as if not objected to, or 
 refused, in his discretion." 1 " Any judge of the Circuit Court, as 
 well in vacation as in term, may, at chambers, or on the rule-days 
 at the clerk's office, make and direct all such interlocutory orders, 
 rules, and other proceedings, preparatory to the hearing of all 
 causes upon their merits, in the same manner and with the same 
 effect as the Circuit Court could make and direct the same in 
 term, reasonable notice of the application therefor being first 
 given to the adverse party, or his solicitor, to appear and show 
 cause to the contrary, at the next rule-day thereafter, unless some 
 other time is assigned by the judge for the hearing." 2 It has 
 been held that the foregoing rule does not apply to a motion 
 made in term and in the presence of counsel for the opposing 
 side. 3 " Except in cases where personal or other notice is specially 
 required or directed, such entry in the order-book shall be deemed 
 sufficient notice to the parties and their solicitors, without further 
 service thereof, of all orders, rules, acts, notices, and other pro- 
 ceedings, entered in such order-book, touching any and all mat- 
 ters in the suits to and in which they are parties and solicitors. 
 And notice to the solicitors shall be deemed notice to the parties 
 for whom they appear and whom they represent, in all cases 
 where personal notice on the parties is not otherwise specially 
 required. Where the solicitors for all the parties in a suit 
 reside in or near the same town or city, the judges of the Cir- 
 cuit Court may, by rule, abridge the time for notice of rules, 
 orders, or other proceedings not requiring personal service on the 
 parties, in their discretion." 4 This subject is usually regulated 
 
 9 Daniell's Ch. Pr. (2d Am. ed.) 1789; 3 McLean v. The Lafayette Bank, 3 
 
 Rule 3. McLean, 503, 505. 
 § 197. ! Rule 6. 4 Rule 4. 
 
 2 Rule 3. 

 
 § 197.] NOTICE OF MOTION. 283 
 
 by rule or local practice different]}' in the several circuits. In 
 the Circuit Court for the Southern District of New York, four 
 days' notice personally served, together with a copy of the bill 
 and of the affidavits intended to be used in support of the motion, 
 is all that is usually required. 5 
 
 All notices of motion for any process of contempt or commit- 
 ment must be served personally on the party against whom the 
 process is sought, 6 except, perhaps, when an order for substituted 
 service has been previously obtained. 7 In England, under special 
 circumstances, notice of a motion could be made upon an agent 
 of a person without the jurisdiction. 8 
 
 A notice of motion should be properly entitled in the cause or 
 matter in which it is made. 9 It should be addressed to the soli- 
 citor of the party intended to be affected by it, or to the party 
 himself when he appears in person or personal service is intended. 
 It should be dated, 10 and signed by the solicitor for the moving 
 party, or by that party himself if he appear in person. 11 It has 
 been held in New York that a notice signed in person by a defend- 
 ant who has previously appeared by a solicitor who has not been 
 removed is irregular. 12 A notice of motion should state the day, 
 place, and hour at which the motion will be made. 13 It is usual, 
 however, to designate the hour by the expression " at the open- 
 ing of the court on that day," and to add the words " or as soon 
 thereafter as counsel can be heard." 14 Where the motion can 
 be made only by leave of the court, the notice ought to mention 
 that it is so made ; or, otherwise, it seems that it may be disre- 
 garded. 15 Where the object of the motion is to discharge an 
 
 6 See Rule 105 of the Rules of the 10 Barbour's Ch. Pr. 570 ; Moody v. 
 
 U.S. C. C. for the Southern District of Hebberd, 11 Jur. 941; Hutchinson v. 
 
 New York. Horner, 9 Jur. 615 ; Parker v. Francis, 9 
 
 6 Daniell's Ch. Pr. (2d Am. ed.) 1794 ; Jur. 616, note. 
 
 Gray v. Chicago, la. & Neb. R. R. Co., 1 u Barbour's Ch. Pr. 570 ; Perry v. 
 
 Woolw. 63. Walker, 4 Beav. 452. 
 
 7 Hope v. Hope, 4 De G., M. & G. 328. 12 Halsey v. Carter, 6 Robertson (N. Y.), 
 
 8 Daniell's Ch. Pr (2d Am. ed ) 1794; 535; Webb v. Dill, 18 Abb. Pr. (N. Y.) 
 Hope v. Hope, 4 De G., M. & G. 328 ; 264. 
 
 Cooper v. Wood, 5 Beav. 391; Pulteney w Barbour's Ch. Pr. 570; Bodwell v. 
 
 v. Shelton, 5 Ves. 147; Hunt v. Lever, Willcox, 2 Caines (N. Y.), 104; Anon., 
 
 5 Ves. 147 ; and § 96. 1 J. R. (N. Y.) 143. 
 
 9 Barbour's Ch. Pr. 570 ; Rowlatt v. u Barbour's Ch. Pr. 570 ; In re Electric 
 Cattell, 2 Hare, 180 ; Salomon v. Stal- Tel. Co. of Ireland, 10 W. R. 4. 
 
 man, 4 Beav. 243; Davis v. Barrett, 7 15 Hill v. Rimell, 8 Simons, 632 ; Jack- 
 Beav. 171 ; Morrall v. Prichard, 11 Jur. lin v. Wilkins, 6 Beav. 607. 
 (n. s) 969.
 
 284 INTERLOCUTORY APPLICATIONS AND PETITIONS. [CHAP. XV. 
 
 order for irregularity, it is usual for the notice to state the 
 ground of the application. 16 It is usual for the notice also to 
 6tate before what judge the motion will be made ; and to specify 
 the affidavits and other documents which will be used in its sup- 
 port. 17 The notice must state clearly the terms of the order 
 which will be asked for, and everything which the party would 
 have should be expressed ; as the court will not extend the order 
 beyond the notice. 18 For this reason, it is usual to add a notice 
 of a motion for general relief; that is, "for such other or further 
 order or relief as to the court shall seem just;" under which other 
 relief germane to that, a motion for which has been specifically 
 noticed, may be granted. 19 It has been held that a motion for 
 the appointment of a receiver cannot be made at the hearing, 
 upon a motion for an injunction against an interference with a 
 railroad claimed to be in the possession of the moving party. 20 
 "A motion to suppress depositions brings up the regularity of 
 an ex parte order directing them to be taken, as well as the com- 
 petency of the witnesses examined, if the party moving to sup- 
 press has never done anything to waive the objection." 21 
 
 A motion may be made by any party to a cause except one 
 who is in contempt. 22 A party in contempt cannot move for any 
 other purpose than to discharge the contempt proceedings, 23 or to 
 expunge scandal from the record. 24 And it has been said that, 
 in such cases, he should apply by petition. 25 No one should join 
 in a notice for a motion in which he is not directly interested. 26 
 The joinder of one disinterested party with others who had an 
 interest was held in England a sufficient reason for refusing the 
 whole motion. 27 A motion in the course of proceedings under an 
 information cannot be made on behalf of the relators, but only on 
 behalf of the attorney-general or district attorney. 28 Where it 
 
 » Brown v. Robertson, 2 Phil. 173 ; Al- & Daniell's Ch. Pr. (2d Am. ed.) 1787 ; 
 
 exander v. Esten, 1 Caines (N. Y.), 152; Nicholson v. Squire, 16 Ves. 259, 260. 
 
 Jackson v. Stiles, 1 Cowen (N. Y.), 134. « Daniell's Ch. Pr. (2d Am. ed.) 554- 
 
 " Daniell's Ch. Pr. (2d Am. ed.) 1793; 558, 1787 ; Anon., 5 Ves. 656. 
 
 Clement v. Griffith, C. P. Coop. 470; 2 * Everett v. Prythergeh, 12 Simons, 
 
 Brown v. Ricketts, 2 J. Ch. (N. Y.) 425. 363. 
 
 18 Barbour's Ch. Pr. 570 ; Mann v. ,25 Lord Eldon in Nicholson v. Squire, 16 
 King, 18 Ves. 297. Ves. 259, 260. 
 
 1 9 Barbour's Ch. Pr. 570. 26 Daniell's Ch. Pr. (2d Am. ed.) 1793 ; 
 
 20 St. L. K. C. & C. Ry. Co. v. Dewees, Folland v. Lamotte, 10 Simons, 486. 
 
 23 Fed. R. 691. 27 Folland v. Lamotte, 10 Simons, 486. 
 
 21 Mr. Justice Bradley in Eslava v. 28 Attorney-General v. Wright, 3 Beav. 
 Mazange, 1 Woods, 623, 627. 447.
 
 § 193.] ARGUMENT OF MOTIONS. 285 
 
 is clearly for the interest of a person under a disability to make 
 a motion, and he has no next friend, or his next friend refuses 
 to do so, a next friend for the purposes of the application may 
 move on his behalf. 29 
 
 A number of objects not inconsistent with each other, and 
 even inconsistent objects, if prayed for in the alternative, may 
 be included in the same notice and motion. 30 The court will 
 discourage when directing as to costs the making of separate 
 motions for objects which might have been conveniently obtained 
 by a single application. 31 
 
 § 198. Argument of Motions. — The manner of bringing motions 
 to a hearing is regulated by local rule or usage differently in 
 the different circuits. Lord Campbell has thus described the 
 former English practice, which was abolished by Lord Mansfield, 
 whose rules for the hearing of motions at common law were fol- 
 lowed by the Court of Chancery : " Day by day during the term, 
 each counsel when called upon had been accustomed to make as 
 many motions successively and continuously as he pleased. The 
 consequence was, that by the time the Attorney and Solicitor-Gen- 
 eral, and two or three other Dons, had exhausted their motions, 
 the hour had arrived for the adjournment ; and as the counsel of 
 highest rank was again called to at the sitting of the court next 
 morning, juniors had no opportunity of making any motions 
 with which they might be intrusted till the last day of term, 
 when it was usual, as a fruitless compliment to them, to begin 
 with the back row — after the time had passed by when their 
 motions could be made with any benefit to their clients. The 
 consequence was, that young men of promise were unduly de- 
 pressed, and more briefs were brought to the leaders than there 
 was time for them to read, even had they been toiling all night 
 at their chambers instead of sitting up in the House of Com- 
 mons absorbed in party struggles. Thus the interests of the 
 suitors were in danger of being neglected, and the judges did not 
 receive the fair assistance from the bar in coining to a right con- 
 clusion which the}' - were entitled to expect. To remedy these 
 evils, a rule was made that the counsel should only make one 
 motion a-piece in rotation ; and that if by chance the court rose 
 
 29 Cox v. Wright, 9 Jur. (n. s.) 981 ; 80 Darnell's Ch. Pr. (2d Am. ed.) 1792, 
 Guy v. Guy, 2 Beav. 460; Furtado t;. 1793. 
 Furtado, 6 Jur. 227. »' Hawke v. Kemp, 3 Beav. 288.
 
 286 INTERLOCUTORY APPLICATIONS AND PETITIONS. [CHAP. XV. 
 
 before the whole bar had been gone through, the motion should 
 begin next morning with him whose turn it was to move at the 
 adjournment. The business was thus both more equally distrib- 
 uted and much better done." 1 This custom, however, if it ever 
 did prevail, was early abolished in this country ; and here usu- 
 ally either no method is observed, and motions are made by 
 counsel as they catch the judge's eye, or a calendar upon which 
 motions are placed by the clerk in the order in which they were 
 first brought to his attention, is made and called. 
 
 "When, at the hearing of a motion, the opposite party is not 
 represented, proof of service must be shown by entry in the 
 order-book, affidavit, or admission ; and the hearing may then 
 proceed ex parte? When the moving party does not then ap- 
 pear, his motion will be dismissed. When both sides are repre- 
 sented, the moving party has the right of opening and replying. 3 
 The English rule was that, "in injunction cases, where upon an 
 order to dissolve an injunction nisi the plaintiff shows cause 
 upon the merits confessed in the answer ; then no reply is al- 
 lowed, the motion for the order nisi being considered as the 
 application, to which the plaintiff answers by showing cause 
 upon the merits ; after this, the defendant's counsel is allowed to 
 argue against the cause shown by the plaintiff, and this is con- 
 sidered as the reply." 4 As a general rule, no person can be 
 heard in support of a motion unless he has been one of the par- 
 ties who gave notice of it. 5 But when the object of a motion is 
 to reverse the conclusion of a master, it seems that all persons 
 interested in the master's report are entitled to be heard in its sup- 
 port. 6 At the hearing, if the English practice should be followed, 
 any affidavit might be read by either party that had been filed in 
 the clerk's office before the hearing. If an affidavit were filed 
 too late for the other side to take a copy of it, or to obtain an 
 affidavit controverting facts stated in it, that was a ground for 
 moving to postpone the hearing. No affidavit filed previous to 
 the entry of the motion could be used by the moving party, un- 
 less he had in his notice of motion stated specifically that he 
 intended to use it. A separate notice to that effect, if served a 
 
 § 198. * Campbell's Lives of the Chief 4 Daniell's Ch. Pr. (2d Am. ed.) 1799. 
 
 Justices, ch. xxxiv. pp. 398, 399. See 5 Stubbs v. Sargon, 3 Beav. 408; Dan- 
 
 also Daniell's Ch. Pr. (2d Am. ed.) 1797. iell's Ch. Pr. (2d Am. ed.) 1793. 
 
 2 Rule 6. 6 Johnston v. Todd, 5 Beav. 394 ; Dan- 
 
 3 Daniell's Ch. Pr. (2d Am. ed.) 1799. iell's Ch. Pr. (2d Am. ed.) 1793.
 
 § 199.] PETITIONS IN GENERAL. 237 
 
 reasonable time before the hearing of the motion, would, how- 
 ever, probably be sufficient. 7 This subject is, however, by local 
 rule or custom regulated differently in the different circuits. 
 Where an order is made by which a particular act is to be done, 
 unless the other party shall within, or rather, as is the usual 
 American custom, at a certain time, show cause to the contrary ; 
 which order is called in England an order nisi, in the United 
 States usually an order to show cause ; the party obtaining it 
 must, on the return day, move for another order " to confirm 
 the previous order nisi absolute." The motion, in this case, 
 requires no notice, but the application must be supported by an 
 affidavit to prove due service of the order nisi, similar to the 
 proof of service of a notice of motion, unless a different mode or 
 time of service be directed by the judge granting it. 8 
 
 § 199. Petitions in General. — A petition is a request in writing 
 directed to the judge or judges of the court, and showing some 
 matter or cause whereupon the petition prays some direction or 
 order. 1 It may be made by one who is, or by one who is not, a 
 party to a cause pending in the court. Lord Erskine said 
 formerly : " I do not find that there are any precise or posi- 
 tive boundaries between motions and petitions, as they are 
 to be applied to carry into effect decrees and orders, so as to 
 exclude all discretion in the court to grant or refuse them, 
 according to circumstances ; but generally speaking, motions 
 which have for theii object the giving effect to decrees or or- 
 ders, should be confined to cases where the order which is to be 
 made upon the motion arises out of recent proceedings upon 
 which there is no doubt ; for as the adverse party knows nothing 
 but by the notice, containing only the name of the cause and 
 what is prayed of the court, the proceedings ought to be recent 
 and notorious, so as that the adverse party may be supposed to 
 be perfectly conusant of all the steps and proceedings in the cause, 
 as much as if, at a greater expense, they were recited in the 
 petition." 2 But petitions are now rarely filed by a party to a 
 cause, since any relief which he desires can usually be obtained 
 equally well by a motion supported by an affidavit containing 
 the allegations which would be necessary in a petition. Peti- 
 
 7 Daniell's Ch. Pr. (2d Am. ed.) 1797, 2 Lord Shipbrooke v. Lord Hinchin- 
 
 1798. brook, 13 Ves. 387, 393. See, however, 
 
 » Daniell's Ch. Pr. (5th Am. ed.) 1593. Nicholson v. Squire, 16 Ves. 259, 200. 
 § 199. i 2 Barbour's Ch. Pr. 679.
 
 288 INTERLOCUTORY APPLICATIONS AND PETITIONS. [CHAP. XV. 
 
 tions are usually filed by some person not a party in order to ob- 
 tain the benefit of proceedings in a cause pending in the court, 
 or else to obtain an order in relation to some matter which is not 
 the subject of any litigation in it. Petitions which are made in 
 a cause are termed cause petitions. 3 The most common in- 
 stances of cause petitions are petitions for the appointment of a 
 next friend, petitions of intervention, petitions for payment out 
 of a fund in the hands of an officer of the court, and petitions for 
 leave to sue a receiver. The most common instances of petitions 
 which are not cause petitions are petitions for the appointment, 
 removal, or resignation of a trustee, and petitions for the ap- 
 pointment of the guardian of an infant and the maintenance of 
 the infant out of his property. But in most, if not all, of these 
 cases the application can also be made by motion, unless a long 
 statement of facts is needed to show the right of the applicant 
 to relief. 4 After a decree which purports to finally dispose of 
 the suit, one plaintiff cannot obtain relief against another by 
 means of a petition setting up matters which could not have 
 been introduced by an amended or supplemental bill ; at least 
 without notice to the party against whom he seeks relief. 5 Or- 
 dinarily, a petition cannot be presented in a cause before the 
 bill has been filed. 6 A petition for leave to sue in forma pau- 
 peris is an exception to this rule ; and in an extraordinary case a 
 staj^-order might perhaps be granted upon a petition before the 
 filing of a bill. 7 
 
 § 200. Petitions for Leave to Sue in forma pauperis. — " The 
 right to sue in forma pauperis originated in the statute of Hen. 
 VII. This and the subsequent statute of Hen. VIII. are con- 
 fined to actions in the courts of common law, and do not extend 
 to defendants. The courts of equity have adopted the principle 
 of these statutes, and proceeding further, have extended the relief 
 to the case of defendants." l An infant may sue or defend in 
 this manner 2 in equity, but, unless so authorized by State statute, 
 not at common law. 3 In the Southern District of New York it 
 
 8 Daniell's Ch. Pr. (2d Am. ed.) 1801. § 200. « Lord Lyndhurst in Oldfield v. 
 
 4 Jones v. Roberts, 12 Simons, 189; Cobbett, 1 Phil. 613, 615. See Ferguson v. 
 Barker v. Todd, 15 Fed. R. 265. Dent, 15 Fed. R. 771. 
 
 5 Smith v. Woolfolk, 115 U. S. 143. 2 Ferguson v. Dent, 15 Fed. R. 771. 
 
 6 Daniell's Ch. Pr. (2d Am. ed.) 1801. « Roy v. Louisville, N. O. & T. R. Co. 
 1 Mayor of London v. Bolt, 5 Ves. 129 ; 34 Fed. R. 276. 
 
 Daniell's Ch. Pr. (2d Am. ed.) 1801.
 
 § 200.] PETITIONS FOE LEAVE TO SUE IN FORMA PAUPERIS. 289 
 
 has been held that a non-resident may sue in forma pauperis at 
 common law. 4 A person suing or being sued in a represent- 
 ative capacity could not obtain an order of this character. 5 
 According to the English practice, the person desiring per- 
 mission to sue or defend in forma pauperis was obliged to 
 present a petition to the Master of the Rolls, containing a short 
 statement of his case or defense, and of the proceedings, if any, 
 which had been had in the cause, and praying to be admitted 
 to sue in forma pauperis, and that a counsel and solicitor might 
 be assigned to him. 6 The petition, when filed by a complain- 
 ant, had to be accompanied by a certificate signed by counsel 
 "that he conceives the plaintiff has just cause to be relieved 
 touching the matter of the petition for which he has exhibited 
 his bill ; " and in all cases by the affidavit of the party himself 
 " that he is not worth in all the world the sum of 51. after pay- 
 ment of his just debts, his wearing apparel and the matters in 
 question in the cause only excepted." ' When the petition was 
 approved, the Master of the Rolls underwrote an order admitting 
 the petitioner to sue or defend in forma pauperis, and assigned 
 a counsel and solicitor to act on his behalf. 8 Such counsel or 
 solicitor could not refuse so to act unless excused by the court 
 for a sufficient reason. 9 They could not take any fee, profit, or 
 reward of the pauper for the despatch of business, while the cause 
 was pending and the party continued in forma pauperis ; except 
 paupers' fees, which were twopence a sheet for the labor of copy- 
 ing. 10 Nor could any agreement be made for the payment of 
 any recompense afterwards. 11 For an offence in either of these 
 respects, both the lawyer and the client were guilty of con- 
 tempt of court ; and the client was dispaupered, and forever 
 disqualified from suing as a pauper in the same suit. 12 When 
 it was made to appear to the court, that a pauper had sold or 
 contracted for the benefit of his suit, or any part thereof, while 
 the same was depending, his suit was dismissed absolutely. 13 
 No fees except paupers' fees could be collected from the pauper, 
 
 * Heckman v. Mackey, 32 Fed. K. 574 1 Daniell's Ch. Pr. (2d Am. ed.) 40; 
 6 Oldfield v. Cobbett, 1 Phil. 613; Wilkinson v. Belsher, 2 Brown Ch. C. 272. 
 
 Daniell's Ch. Pr. (2d Am. ed.) 44; Anon., 8 Daniell's Ch Pr. (2d Am. ed.) 47. 
 
 1 Ves. Jr. 409. But see Thompson v. 9 Daniell's Ch. Pr. (2d Am. ed. ) 47, 48. 
 
 Thompson, cited in 1 Turner & V. Chan. 10 Daniell's Ch. Pr. (2d Am. ed.) 47. 
 
 Pr. 513; Ferguson v. Dent, 15 Fed. R. u Daniell's Ch. Pr. (2d Am. ed.) 47. 
 
 771. » Daniell's Ch. Pr. (2d Am. ed.) 47. 
 
 • Daniell's Ch. Pr. (2d Am. ed.) 46. 13 Daniell's Ch. Pr. (2d Am. ed.) 47. 
 
 19
 
 290 INTERLOCUTORY APPLICATIONS AND PETITIONS. [CHAP. XV. 
 
 nor could costs be decreed against him, 14 except for scandal. 15 
 In case of success, however, the court might allow him full 
 costs. " For though he is at no costs, or but small expense, yet 
 the counsel and clerks do not give their labor to the defendant, 
 but to the pauper." 16 The order permitting a party to sue or 
 defend in forma pauperis had to be served upon the opposite party 
 as soon as possible. For the pauper was liable for all costs 
 decreed against him before the service of the order. 17 A party 
 could be dispaupered for improper or vexatious conduct in the 
 suit. 18 
 
 § 201. Petitions of Intervention. — A petition of intervention 
 is filed in a pending cause by a person who is not a party to it ; 
 and prays permission to intervene and become a party, either 
 plaintiff or defendant. The general rule is that the court has 
 no power to allow a stranger to a cause " to be heard therein 
 either by petition or motion, except in certain cases arising from 
 necessity, as where the pleadings contain scandal against a 
 stranger, or where a stranger purchases the subject of litigation 
 pending the suit, and the like." ] In a suit brought by a member 
 of a class on behalf of himself and others similarly interested, 
 another member of the class who desires the success of the com- 
 plainant 2 can always intervene, 3 upon payment of his share of 
 the costs, expenses, and reasonable counsel fees which have been 
 previously paid or incurred. 4 Ordinarily, such a person will be 
 joined as plaintiff. If he is citizen of the same State as one of 
 the defendants, that will not in most, if in any, cases, deprive the 
 court of jurisdiction. 5 If there should be any danger that it 
 
 14 Daniell's Ch. Pr. (2d Am. ed.) 49; Co., 2 Black, 524 ; Coleman v. Martin, 6 
 
 Scatchmer v. Foulkard, 1 Eq. Cases Abr. Blatchf. 119 ; Drake v. Goodridge, 6 
 
 125. Blatchf. 151 ; Page v. Holmes Burglar 
 
 !5 Rattray v. George, 16 Ves. 232. Alarm Tel. Co , 18 Blatchf. 118. 
 See also Murphy v. Oldis, 2 Molloy, 475 ; 2 Forbes v. Memphis, El Paso, & Pacific 
 
 Richardson w. Richardson, 5 Paige (N. Y.), R. R. Co., 2 Woods, 323. 
 58. 3 Ogilvie v. Knox Ins. Co., 2 Black, 
 
 16 Scatchmer v. Foulkard, 1 Eq. Cases 539; s. c. 22 How. 380; Myers v. Fenn, 
 
 Abr. 125 ; Rattray v. George, 16 Ves. 5 Wall. 205 ; Ex parte Jordan, 94 U. S. 
 
 232 ; Daniell's Ch. Pr. (2d Am. ed.) 49, 50. 248 ; First Nat. Ins. Co. v. Salisbury, 130 
 
 M Ballard v. Catling, 2 Keen, 606. Mass. 303 ; Hallett v. Hallett, 2 Paige 
 
 i 8 Wagner v. Mears, 3 Simons, 127. (N. Y.), 432; Leigh v. Thomas, 2 Ves. 
 
 § 201. l Mr. Justice Bradley in Ander- Sen. 312 ; Story's Eq. PI. § 99. 
 son v. Jacksonville, P. & M. R. R. Co., 4 Central Railroad v. Pettus, 113 U. S. 
 
 2 Woods, 628, 629. See also Searles v. 116 ; Trustees v. Greenough, 105 U. S. 
 
 Jacksonville, P. & M. R. R. Co., 2 527. 
 
 Woods, 621, 625 ; Shields v. Barrow, 5 Stewart v. Dunham, 115 U. S. 61. 
 
 17 How. 130, 145 ; Bronson v. Railroad
 
 § 201.] PETITIONS OF INTERVENTION. 291 
 
 would, he may be joined as a defendant. 6 If he intends to act 
 in hostility to the original complainant, the court may, in its 
 discretion, add him to the defendants. 7 In suits brought by or 
 against a trustee, or otherwise affecting trust property, the bene- 
 ficiaries of the trust will frequently be allowed to intervene for 
 the purpose of protecting their interests. 8 In suits brought by 
 or against a corporation, stockholders may be allowed to inter- 
 vene if there is any danger of their being injured by fraud, 
 neglect, or collusion on the part of the officers ; 9 and in some 
 such cases stockholders have been allowed to file an answer and 
 defend the suit in the name of the corporation. 10 New parties 
 can always intervene by the consent of the original parties. 11 
 Persons interested in disputing the validity of a patent have been 
 allowed to move to set aside a decree recognizing the validity of 
 the patent entered by collusion in a suit to which they were 
 strangers. 12 But such persons were not allowed to intervene in 
 a suit to restrain the infringement of a patent when they relied 
 upon a distinct defense not raised therein. 13 
 
 A petition for leave to intervene should describe the proceed- 
 ings in the cause in which it is filed, so that the court can see 
 the nature and condition of the suit. 14 It ma} ? also contain a 
 statement of the petitioner's view of the case, and pray in addi- 
 tion to intervention the final relief which he desires. 15 A paper 
 termed a cross-bill, if otherwise correct in form, may be sustained 
 as a petition of intervention. 16 If any of the original parties 
 desires to contest the petitioner's right to intervene, he must do 
 so specifically at the hearing upon the petition. 17 Leave to inter- 
 vene when granted should be given by order ; 1S but by proceed- 
 
 6 Brown v. Pacific Mail S. S. Co., 5 Wall. 459, 464 ; French v. Gapen, 105 
 Blatchf. 525, 535. U. S. 609, 525. 
 
 7 Galveston R. R. v. Cowdrey, 11 Wall. 12 Barker v. Todd, 15 Fed. R. 265. But 
 453, 478 ; Forbes v. Memphis, El Paso, & see Washburn & Moen Manuf. Co. v. Col- 
 Pacific R. R. Co., 2 Woods, 323. well Steel Barb Fence Co., 1 Fed. R. 225. 
 
 8 Drew v. Harman, 5 Price, 319; Say- 13 Page v. Holmes Burglar Alarm Tel. 
 lors v. Saylors, 3 Heisk. (Tenn.) 525; Co., 18 Blatchf. 118. 
 
 Birdsong v. Birdsong, 2 Head (Tenn.), 14 Ransom v. Davis' Adm'rs, 18 How. 
 
 289 ; Carter v. New Orleans, 19 Fed. R. 295. 
 
 659; F. L. & Tr. Co. v. Mo. I. & N. Ry. 15 French v. Gapen, 105 U. S. 509, 519, 
 
 Co., 21 Fed. R. 264. 620. 
 
 9 Bayliss v. Lafayette, M. & B. Ry. 16 French v. Gapen, 105 U. S. 509, 519. 
 Co., 8 Biss. 193. 17 French v. Gapen, 105 U. S. 509, 626 ; 
 
 10 Bronson v. La Crosse & M. R. R. Myers v. Fenn, 6 Wall. 205. 
 
 Co., 2 Wall. 283. 18 For the form of an order, see Ex parte 
 
 11 Galveston Railroad v. Cowdrey, 11 Jordan, 91 U. S. 248, 249.
 
 292 INTERLOCUTORY APPLICATIONS AND PETITIONS. [CHAP. XV. 
 
 ing without objection an omission to enter such an order will be 
 waived. 19 After intervention the new parties are treated to all 
 intents and purposes as if they had been original parties to the 
 suit. 20 They have the right to appeal from the final decree, and 
 can then object to all interlocutory proceedings taken after their 
 intervention. 21 
 
 § 202. Form of Petitions and Practice upon Them. — A petition 
 should be properly entitled in the cause in which it is presented. 1 
 When not a cause petition, a petition is entitled " In the matter 
 of the application of," &c. The petitioner, if not a party to a 
 cause in which the petition is filed, should state his name, resi- 
 dence, and description. 2 A petition should contain no scandal or 
 impertinence ; for which, like any other proceeding, it may be 
 referred. 3 A petition need not be signed by counsel unless it 
 seeks a rehearing or an appeal. 4 Petitions are usually signed by 
 the part}' making them, either personally or by his solicitor. 5 
 
 " Petitions are either for orders of course, or for special orders. 
 Petitions for orders of course are forthwith granted, without any 
 attendance being ordered ; if they are for special matters a day 
 is appointed for hearing them. Most things which maybe moved 
 for of course, may also be obtained, as of course, upon petition." 6 
 All petitions which are for matters not granted as of course 
 must be served upon all parties interested in the matter prayed 
 for in them. Service is made substantially in the same way and 
 at the same time before the hearing as that of notices of motions. 7 
 If actual, and not constructive, service is required, it seems that 
 it must be made by delivering a copy of the petition, and at the 
 same time showing the original to the person served, 8 unless the 
 court otherwise directs. 
 
 Objections to the form of a petition can only be taken by 
 demurrer. 9 By answering a respondent loses his right to demur, 10 
 and, it has been held, waives the objections that the petitioner 
 had a complete and adequate remedy at law, 11 that he should 
 
 1 9 Myers v. Fenn, 5 Wall. 205. 6 Daniell's Ch. Pr. (2d Am. ed.) 1802. 
 
 20 French v. Gapen, 105 U. S. 509, 525. 7 See Rules 5 & 6; Daniell's Ch. Pr. 
 
 21 Ex parte Jordan, 94 U. S. 248, 252. (2d Am. ed.) 1804. 
 
 § 202. » Daniell's Ch.Pr. (2d Am. ed.) 8 Daniell's Ch. Pr. (2d Am. ed.) 1804. 
 
 1802. 9 U. S. R. S. § 954 ; Newman v. Moody, 
 
 2 Glazbrook ». Gillatt, 9 Beav. 492. 19 Fed. R. 858. 
 
 3 Daniell's Ch. Pr. (2d Am. ed.) 1803. u Newman v. Moody, 19 Fed. R. 858. 
 * Daniell's Ch. Pr. (2d Am. ed.) 1803. » Newman v. Moody, 19 Fed. R. 858. 
 5 Daniell's Ch. Pr. (2d Am. ed.) 1803. 

 
 § 203.] 
 
 ORDERS. 293 
 
 have proceeded by bill instead of by petition; 12 and, if a receiver, 
 that he has not obtained leave to sue. 13 Adverse parties may 
 file answers denying the facts stated in a petition, or setting up 
 other facts in avoidance. Such answers should be verified by 
 affidavit. 14 If the parties are at issue as to the facts, accord- 
 ing to the more formal practice testimony may be taken as in 
 the regular course of a suit; 15 but the more usual course is for the 
 parties on either side to support their claim by affidavits, in the 
 same manner as when supporting or opposing a motion. 16 Pro- 
 ceedings upon the hearing of petitions are similar to those upon 
 the hearing of motions. 17 It has been said by Daniell that a 
 petition cannot be amended by adding to it a statement of facts 
 which have occurred since it was filed ; 18 but an English judge 
 has held otherwise. 19 
 
 § 203. Orders. — An order is a direction of the court or a 
 judge thereof in writing. When contained in a decree, an order 
 is termed a decretal order. 1 Orders may be made at any place 
 within the territorial jurisdiction of the court ; and in a Circuit 
 Court, if all judges authorized to sit therein are absent from 
 the circuit, it seems that they may be made by a justice of the 
 Supreme Court sitting anywhere within the United States. 2 
 Orders upon interlocutory applications should be served upon 
 the solicitor of the opposite party. If the other party takes a 
 step in the action after an ex parte order has been obtained but 
 before its service, " that step being in itself regular, the order 
 which had been obtained and not served cannot afterwards be 
 acted upon, if it will interfere with the step so taken." 3 If it 
 is intended to enforce the order by contempt proceedings, it 
 should be served personally upon the party to be affected by 
 it, 4 unless possibly in an extraordinary case an order should be 
 granted allowing substituted service. 6 
 
 U Newman v. Moody, 19 Fed. R. 858. 2 United States ». Louisville & P. 
 
 » s Newman v. Moody, 19 Fed. R. 858. Canal Co., 4 Dill. 601 ; Searles v. Jack- 
 
 14 Mitford's & Tyler's PI. 448. sonville, P. & M. R. R. Co., 2 Woods, 
 
 16 Mitford's & Tyler's PI. 448. 621 ; U. S. R. S. § 719. 
 
 is Daniell's Ch. Pr. (5th Am. ed.) 1608. 8 Daniell's Ch. Pr. (2d Am. ed.) 1789; 
 
 1 7 Daniell's Ch. Pr. (2d Am. ed.) 1805. Church v. Marsh, 2 Bare, 652. 
 is Daniell's Ch. Pr. (5th Am. ed.) 1610. 4 Re Cary, 10 Fed. R. 622. 
 
 19 Malms' V. C. In re Westhrook's 5 Hunter v. , 6 Simons, 429 ; Lor- 
 
 Trusts, L. R. 11 Eq. 252. ton v. Seaman, 9 Paige (N. Y.), 609; 
 
 § 203. 1 TJ. S. R. S. § 719. See Good- People v. Brower, 4 Paige (N. Y.), 405; 
 
 vear Dental Vulcanite Co. v. Folsom, 3 Stafford v. Brown, 4 Paige (N. Y.), 360. 
 Fed. R. 509.
 
 294 INTERLOCUTORY APPLICATIONS AND PETITIONS. [CHAP. XV. 
 
 Interlocutory orders made upon motion may be altered or 
 vacated a 4 " any time; 6 and orders made ex parte upon petition 
 may also be discharged upon motion for irregularity.' But, 
 according to the English practice, orders made after a heaving 
 upon a petition could not be altered or discharged without the 
 filing of a petition for a rehearing, or upon appeal. 8 An order 
 granted after a hearing before one judge of a court will, unless 
 under extraordinary circumstances, not be modified or vacated by 
 another except upon appeal. 9 Unless limited by their terms, or, as 
 in the case of injunctions granted by district judges, by statute, 10 
 orders within the jurisdiction of the judge or court that grants 
 them remain in force until discharged by a subsequent order ; u 
 or until the final decree, when, unless renewed by its terms, all 
 orders expire. 12 No appeal lies before the final decree from an 
 interlocutory order which is not final in its nature. 13 It has been 
 said by Chief Justice Taney, that " In this respect the practice 
 of the United States chancery courts differs from the English 
 practice. For appeals to the House of Lords may be taken from 
 an interlocutoiy order of the chancellor, which decides a right 
 of property in dispute; and therefore there is no irreparable in- 
 jury to the party by ordering his deed to be cancelled, or the 
 property he holds to be delivered up, because he may immedi- 
 ately appeal ; and the execution of the order is suspended until 
 the decision of the appellate court. But the case is otherwise 
 in the courts of the United States, where the right to appeal is 
 by law limited to final decrees. And if by an interlocutory order 
 or decree he is required to deliver up property which he claims, 
 or to pay money which he denies to be due, and the order is imme- 
 diately carried into execution by the Circuit Court, his right of 
 appeal is of very little value to him, and he may be ruined before 
 he is permitted to avail himself of the right. It is exceedingly 
 important, therefore, that the Circuit Courts of the United 
 
 e Daniell's Ch. Pr. (2d Am. ed ) 1616, & G. II. W. Co., 1 Saw. 685, 689 ; Oglesby 
 
 1807 ; Eslava v. Mazange, 1 Woods, 623, v. Attrill, 14 Fed. R. 214. 
 
 027. 10 U. S. R S. § 719; Gray v. Chicago, 
 
 i In re Marrow, Craig & Ph. 142 ; Dan- I. & N. R. R. Co., 1 Woolw. 63. 
 
 iell's Ch. Pr. (2d Am. ed.) 1807. u Eslava v. Mazange, 1 Woods, 623, 
 
 8 Bishop v. Willis, 2 Ves. Sen. 113; 627. 
 
 In re Marrow, Craig & Ph. 142 ; Daniell's 12 Gardner v. Gardner, 87 N. Y. 14 ; 
 
 Ch. Pr. (2d Am. ed.) 1808. But see In re Daniell's Ch. Pr. (2d Am. ed.) 1902. 
 
 Dovenby Hospital, 1 Myl. & Cr. 279; 13 See Chapter XXX, Writs of Error 
 
 West v. Smith, 3 Beav. 306. and Appeals. 
 
 9 Cole Silver Mining Co. v. Virginia
 
 § 204] JUDGES WHO MAY GRANT ORDERS. 295 
 
 States, in framing their interlocutory orders, and in carrying 
 them into execution, should keep in view the difference between 
 the right of appeal, as practised in the English chancery juris- 
 diction, and as restricted by the act of Congress, and abstain 
 from changing unnecessarily the possession of property, or com- 
 pelling the payment of money by an interlocutory order." u 
 
 § 204. Judges who may grant Orders. — An order may be made 
 by any judge authorized to sit in the court in which the cause is 
 pending. In the Supreme Court it is the custom for each justice 
 to refer to the full bench every application of importance which 
 is made to him. 1 An order in a case pending in a Circuit Court 
 may be made by the justice of the Supreme Court allotted to 
 that circuit; 2 or by any justice of the Supreme Court requested, 
 in writing, by the circuit justice to hold court in his circuit ; 3 or 
 if there is no justice of the Supreme Court allotted to that cir- 
 cuit, by any justice of the Supreme Court requested by the Chief 
 Justice to hold court there; 4 by the circuit judge of that circuit; 6 
 by the district judge of that district; 6 or by any judge author- 
 ized to hold the District Court in that district ; 7 or by any two 
 of those judges. 8 
 
 There are nine circuits. 9 The first circuit includes the dis- 
 tricts of Rhode Island, Massachusetts, New Hampshire, and 
 Maine. 10 • The second circuit includes the districts of Ver- 
 mont, Connecticut, and New York. 11 The third circuit includes 
 the districts of Pennsylvania, New Jersey, and Delaware. 12 
 The fourth circuit includes the districts of Maryland, Virginia, 
 West Virginia, North Carolina, and South Carolina. 13 The fifth 
 circuit includes the districts of Georgia, Florida, Alabama, Mis- 
 sissippi, Louisiana, and Texas. 14 The sixth circuit includes the 
 districts of Ohio, Michigan, Kentucky, and Tennessee. 15 The 
 seventh circuit includes the districts of Indiana, Illinois, and 
 Wisconsin. 16 The eighth circuit includes the districts of Colo- 
 rado, Nebraska, Minnesota, Iowa, Missouri, Kansas, Arkansas, 
 
 14 Forgay v. Conrad, 6 How. 201, 205. 8 rj. S. R. S. § 609. 
 
 § 204. i Spies v. Illinois, 123 U. S. 131. 9 U. S. R. S. § 604. 
 
 2 U. S. R. S. §§ 605, 606, 609. *> U. S. R. S. § 604. 
 
 8 U. S. R. S. § 617. See Supervisors » U. S. R. S. § 604. 
 
 v. Rogers, 7 Wall. 175. 12 U. S. R. S. § 604. 
 
 4 U. S. R. S. § 618. » U. S. R. S. § 604. 
 
 6 U. S. R. S. § 609. M U. S. R. S. § tin I. 
 
 6 U. "S. R. S. § 609. is U. S. R. S. § 604. 
 
 7 U. S. R. S. §§ 591-603. " TJ. S. R. S. § 604.
 
 29G INTERLOCUTORY APPLICATIONS AND PETITIONS. [CHAP. XV. 
 
 North Dakota, and South Dakota. 17 The ninth circuit includes 
 the districts of California, Oregon, Nevada, Washington, and 
 Montana. 18 
 
 An order in a case pending in a District Court may be made 
 by the judge of that district ; or, if such office is vacant, by 
 the judge of any other district within the same State ; 19 in 
 case of the disability of the district judge for that district, or 
 such an accumulation or urgency of business as to make the 
 public interest require his appointment, by any other district 
 judge within the same circuit designated and appointed after a 
 certificate, under the court's seal, by the clerk as to those facts, 
 by the circuit justice or circuit judge of the circuit, or, if both 
 of them are absent from the circuit and unable to make such 
 designation and appointment, by the Chief Justice of the United 
 States ; 20 in the District Court for the Northern District of New 
 York, when the judge thereof is disabled and so notifies the 
 judge of the Southern District of New York, by the latter 
 judge ; 21 in the District Court for the Southern District of New 
 York, when the judge thereof is disabled and so notifies the 
 judge of the Eastern District, by the latter judge ; 22 in the same 
 court by the judge of the Eastern District of New York, when- 
 ever the judge of the Southern District deems it desirable on 
 account of the pressure of public business that the former shall 
 perform judicial duties in his district, and has entered an order 
 to that effect ; 23 in one of the District Courts of Florida, by the 
 judge of the other district, in a place where a term of such court 
 is regular^ held, when the judge of the district has filed in the 
 clerk's office a certificate, stating that he is disabled to hold a 
 term of court there, and requesting the judge of the other district 
 to hold the same. 24 
 
 " U. S. R. S. § 604 ; 25 St. at L. ch. «• U. S. R. S. §§ 591-596. 
 
 180, § 21. 21 U. S. R. S. § 599. 
 
 i 8 U. S. R. S. § 604 ; 25 St. at L. ch. 22 U. S. R. S. § 599. 
 
 180, § 21. «* U. S. R. S. § 600. 
 
 is U. S. R. S. § 603. 2 * U. S. R. S. § 598.
 
 § 206.] INJUNCTIONS. 297 
 
 CHAPTER XVI. 
 
 INJUNCTIONS. 
 
 § 205. Definition, Classification, and Objects of Injunctions. — An 
 injunction is a writ issued from a court of equity commanding a 
 person to do an act or acts other than the payment to the com- 
 plainant of a sum of money, or not to do an act or acts specified 
 therein. According to the different aspects from which they are 
 considered, injunctions are classified as judicial writs, and writs 
 remedial ; as mandatory and prohibitory ; as provisional and 
 perpetual ; or as common and special. Before describing the 
 different characteristics of each of these classes, it may be well 
 to refer briefly to the different occasions for the issue of the writ. 
 Injunctions may be obtained to enforce a trust or other purely 
 equitable right, to compel obedience to a covenant or other con- 
 tract affecting land, to compel the obedience of corporations to 
 their charters, to prevent a multiplicity of suits, and generally to 
 prevent an irreparable injury for which damages at law would be 
 no adequate remedy, and also in cases in which they are ex- 
 pressly authorized by statute. 
 
 § 206. Injunctions to enforce Trusts and other purely Equitable 
 Rights. — As trusts and other purely equitable rights are not 
 recognized in courts of law, equity will always interfere to pro- 
 tect them by injunction when they are threatened with infringe- 
 ment. 1 On this account an injunction may be obtained to prevent 
 the revelation or use of a secret of manufacture by a workman 
 who has learned it under an express or implied promise of 
 secrecy, or one to whom such a person has disclosed it ; 2 and to 
 restrain the publication of lectures, 3 manuscripts, 4 or works of 
 
 § 206. J Scott v. Becher, 4 Price 340; body v. Norfolk, 98 Mass. 452. But see 
 
 In re Chertsy Market, 6 Price, 26i ; Sloo v. Newbery v. James, 2 Meriv. 4 16. 
 
 Law, 3 Blatclif. 459; Draper v. Davis, 8 Abernethy v. Hutchinson, 3 L.J. Ch. 
 
 104 U. S. 347 ; Cowles v. Whitman, 10 209. 
 
 Conn. 121 ; Bispham's Eq. § 425 ; Kerr on * Stapleton v. Foreign Vineyard As- 
 
 Injunctions, 172, 173. eociation, 12 W. R. 976 ; Scheile v. Brakell, 
 
 2 Yovatt v. Winyard, 1 Jac. & Walk. 11 W. R. 796. See, however, Southey v. 
 
 3'.)4; Morison v. Moat, 9 Hare, 241 ; Pea- Sherwood, 2 Meriv 435.
 
 298 INJUNCTIONS. [CHAP. XVI. 
 
 art 5 heard or obtained under an express or implied agreement not 
 to publish or reproduce them. Whether or not the publication 
 of private letters which have no value as literary productions 
 can be restrained at the pra}-er of their writer, upon the ground 
 that it would be a breach of an implied trust, is, under the 
 authorities, an open question. 6 
 
 § 207. Injunctions to restrain Corporations from violating their 
 Charters. — The charters of corporations are considered " in the 
 light of contracts made by the legislature on behalf of every 
 person interested in anything to be done under them." x On 
 account of the irreparable injury that would otherwise ensue, 
 and in the case of corporations to whom the State's right of emi- 
 nent domain is delegated, because they are trustees, 2 the diso- 
 bedience of a corporation to its charter may be restrained by 
 injunction, either at the suit of the attorney-general 3 of the State 
 to which it owes its existence, or of any individual who suffers 
 special injury thereby. 4 This rule applies whether the act com- 
 plained of has been forbidden expressly, or merely by implication 
 as not included within the powers expressly given to the corpor- 
 ation and those which are necessary for their proper exercise. 5 
 " It is," said Lord Hatherley, " a principle of public policy that 
 where Parliament has authorized a company to raise a large 
 capital for a specified purpose, the privilege confers no right 
 upon the companjr to employ their capital in competition with 
 the general public upon speculations of a different character." 6 
 " It is because these companies, being armed with the power 
 of raising large sums of money, if they were allowed to apply 
 their funds to purposes other than those for which they were 
 constituted, might acquire such a preponderating influence and 
 command over some particular branch of trade or commerce, 
 
 5 Prince Albert v. Strange, 1 Macn. & 2 M'Coy v. Chicago, I. St. L. & C. R. 
 G. 25, 42. R. Co. 13 Fed. R. 3. 
 
 6 Woolsey v. Judd, 4 Duer (N.Y.), 379 ; 3 Attorney-General v. Great Northern 
 and Eyre v. Higbee, 35 Barb. (N. Y.), 502, Ry. Co., 1 Dr. & Sm. 154 ; Attorney-Gen- 
 hold that they can : and Judge Story con- eral v. Railroad Companies, 35 Wis. 425. 
 curs in this view, in Story's Eq. Jur. §§ But see Attorney-General v. Utica Ins. 
 946-948. But the opposite view is main- Co., 2 Johns. Ch. (N. Y.) 371. 
 
 tained in Gee v. Pritchard, 2 Swanst. 4 Bostock v. North Staffordshire Ry. 
 
 402 ; Wetmore v. Scovell, 3 Edw. Ch. Co., 3 Sm. & Giff. 283; Colman v. The 
 
 (N. Y.) 515; and High on Injunctions, Eastern Counties Ry. Co., 10 Beav. 1. 
 
 § 1012. 6 Attorney-General v. Great Northern 
 
 § 207. 1 Blakemore v. Glamorganshire Ry. Co.. 1 Dr. & Sm. 154. 
 
 Canal Navigation, 1 Myl. & K. 154, 1G2. 6 Cited in Kerr on Injunctions, p. 473.
 
 § 207.] INJUNCTIONS AGAINST CORPORATIONS. 299 
 
 as would enable them to drive the ordinary private trader from 
 the field, and create in their own favor a practical monopoly, 
 whereby the interests of the public would be most seriously 
 injured." 7 When the corporation violates its charter by re- 
 fusing to perform an act thereby expressly or impliedly com- 
 manded, it has been held that the attorney-general cannot 
 compel its obedience by a mandatory injunction, but should 
 in such a case apply for a mandamus. 8 A private individual 
 suing to enjoin a corporation from violating its charter must 
 show some special damage caused to himself by the breach. 9 A 
 shareholder in a company is considered to incur special damage 
 by its diverting its funds to other purposes than its charter auth- 
 orizes, and can obtain an injunction to restrain its so doing, 10 
 even, it has been held, if he bought shares in the company for 
 the very object of preventing it ; n provided that he sues in good 
 faith, and does not act as the mere puppet of a rival corpora- 
 tion ; 12 and that the suit is not brought " against the corporation 
 and other parties, founded on rights which may properly be 
 asserted by the corporation." 13 The holder of a security for an 
 indebtedness of a corporation is also, it seems, entitled to an in- 
 junction in a similar case ; u but not an unsecured creditor, 15 
 except under very extraordinary circumstances. 16 One whose 
 land has been taken from him for the use of a corporation by the 
 exercise of the State's right of eminent domain can obtain an in- 
 junction to restrain the use of the land for any other purpose than 
 is allowed by the company's charter, 17 provided at least that he 
 can show that he is thereby injured. 18 It is, however, no proper 
 
 7 Attorney-General v. Great Northern don, B. & S. C. Ry. 1 H. & M. 439; 
 Ry. Co., 1 Dr. & Sm. 154, 159, 100. Robson v. Dodds,L.R.8 Eq. 301 ; Rogers 
 
 8 Attorney-General v. Birmingham & v. Oxford, Worcester, & Wolverhampton 
 Oxford Junction Ry. Co., 15 Jur. 1024 ; Ry. Co., 2 De G. & J. 662. 
 
 The People v. The Albany &, Vt. R. R. Co , 13 Rule 94 ; Ilawes v. Oakland, 104 
 
 24 N. Y. 261. U- S. 450. 
 
 9 Chamberlaine v. Chester & B. Ry. u Bagshaw v. Eastern Union Ry. Co., 
 Co., 1 Exch. 869, 877 ; Railroad Co. v. 2 Macn. & G. 389 ; Herrick v. Grand 
 Ellerman, 105 U. S. 166, 173, 174. Trunk Ry. Co., 7 Upper Canada Law 
 
 io Colman v. The Eastern Counties Ry. Journal, 240. 
 
 Co., 10 Beav. 1. 15 Syers v. Brighton Brewery Co., 11 
 
 ii Colman v. The Eastern Counties Ry. L. T. (n. s.) 560 ; Mills v. Northern Ry. 
 
 Co., 10 Beav. 1 ; Attorney-General v. of Buenos Ayres Co., 23 L. T. (n. s.) 719. 
 
 Great Northern Ry. Co., 1 Dr. & Sin. 1G Evans v. Coventry, 5 De G. M. & 
 
 154 ; Bloxam v. Met. Ry. Co., L. R. 3 Ch. G. 91 1. 
 
 337 H Bostock v. North Staffordshire Ry. 
 
 i 2 Fovrest v. Manchester, S. & L. Ry. Co., 3 Sm. & Giff. 283. 
 Co., 4 De G. F. & J. 126 ; Filder v. Lon- 18 East & West India Docks &. Bir-
 
 300 INJUNCTIONS. [CHAP. XYI. 
 
 ground for complaint by an individual that a corporation by 
 exercising powers not conferred upon it by its charter enters into 
 competition with him, and thereby diminishes the profits of his 
 trade or calling. 19 An English judge has said : " Where a statute 
 prohibits the doing of a particular act affecting the public, no 
 person has a right of action against another merely because he 
 has done the prohibited act. It is incumbent on the party com- 
 plaining to allege and prove, that the doing of the act prohibited 
 has caused him some special damage, some peculiar injury, be- 
 yond that which he may be supposed to sustain in common with 
 the rest of the Queen's subjects, by an infringement of the law. 
 But where the act prohibited is obviously prohibited for the 
 protection of a particular party, there it is not necessary to allege 
 special damage." 20 
 
 § 208. Injunctions to enforce the Specific Performance of Cov- 
 enants and other Contracts affecting Land. — As no two pieces of 
 land are exactly alike, equity considers that in no case can dam- 
 ages in money be adequate compensation for the breach of a 
 covenant or other contract affecting land. 1 Accordingly, the 
 specific performance of contracts for the purchase or sale of land 
 and of covenants affecting the same, will be specifically enforced 
 with the aid of an injunction, whenever they are mutual, 2 cer- 
 tain, 3 not unconscionable ; 4 and their enforcement would be 
 practicable. 5 The rule concerning the enforcement of cove- 
 nants affecting land has been thus stated : " If the construction 
 of the instrument be clear and the breach clear, then it is 
 not a question of damage, but the mere circumstance of the 
 breach of covenant affords sufficient ground for the court to 
 interfere by injunction." 6 This is, however, subject to the ex-" 
 
 mingham Junction Ry. Co. v. Dawes, 11 3 Colson v. Thompson, 2 Wheat. 326; 
 
 Hare, 363 ; Lee v. Milner, 2 Y. & C. 611 ; Bispham's Eq. § 377. 
 Ware v. Regents Canal Co., 3 De G. &, J. 4 Surget v. Byers, Hempst. 715 ; 
 
 212. Roundtree v. McLain, Hempst. 243 ; Miss. 
 
 19 Railroad Co. v. Ellerman, 105 U. S. & Mo. Railroad Co. v. Cromwell, 91 U. S. 
 166, 173, 174. 643 ; Bispham's Eq. § 376. 
 
 20 Pollock, C. B. in Chamberlaine v. 5 Ross v. Union Pacific R. R. Co., 1 
 Chester & B. Ry. Co., 1 Exchequer, 869, Woolw. 26 ; Fallon v. Railroad Co., 1 
 877. See Blakemore v. Glamorganshire Dill. 121 ; Bispham's Eq. § 377. 
 
 Canal Navigation, 1 Mylne & Keen, 154, 6 Vice Chancellor Wood in Tipping v. 
 
 162. Eckersley, 2 K. & J. 264. See also Lord 
 
 § 208. 1 Adderley v. Dixon, 1 Sim. & Manners v. Johnson, L. R. 1 Ch. D. 673 ; 
 
 Stu. 607 ; Bispham's Eq. § 375. Lloyd v. London, Chatham, & Dover Ry. 
 
 2 Dorsey «;. Packwood, 12 How. 126; Co., 2 De G. J. & S. 568; Trustees of 
 
 Bispham's Eq. § 377. Columbia College v. Lynch, 70 N. Y. 440.
 
 § 200.] INJUNCTIONS TO RESTRAIN A MULTIPLICITY OF SUITS. 301 
 
 ception that if it would be against public policy to enforce the 
 covenant, — for example, if a change of circumstances have ren- 
 dered it improper to use land in accordance with the terms of a 
 covenant regulating its use, or if, on account of such a change, 
 the object of the parties to the covenant would not be accom- 
 plished by its enforcement, — equity will not interfere. 7 
 
 § 209. Injunctions to restrain a Multiplicity of Suits. — Injunc- 
 tions are granted in order to prevent a multiplicity of suits under 
 bills of peace. Bills of peace are bills to restrain a number of 
 persons from endeavoring to enforce in different suits the same 
 or similar claims ; 2 or to prevent a single person from reiterating 
 in several successive suits the same unsuccessful claim ; 2 or to 
 prevent a person from levying a tax, the payment of which will 
 subject the plaintiff to the hazard of a number of suits from other 
 parties ; 3 bills of interpleader 4 and in the nature of interpleader ; 5 
 bills to enjoin a continuing trespass, 6 nuisance, 7 infringement 
 of patents, 8 copyrights 9 and trade-marks; 10 and bills to quiet 
 possession. 11 Each of these classes of bills, except the last two, 
 have been already sufficiently described. Injunctions to restrain 
 a continuing trespass, nuisance, and the infringement of patents, 
 copyrights and trade-marks, are more often said to be granted 
 to prevent irreparable injury, and will, therefore, be considered 
 under that head. An injunction to quiet the possession before 
 the hearing formerly issued to restrain the party to whom it was 
 directed from taking forcible possession of lands pending litiga- 
 tion concerning them. It was issued at the request of either a 
 plaintiff or a defendant to a suit, if the applicant had had peace- 
 able possession of the premises for the three years preceding the 
 
 " Duke of Bedford v. British Museum, 4 Louisiana State Lottery Co. v. Clark, 
 2 M. &, K. 552 ; Troy & B. R. R. Co. v. 16 Fed. R. 20 ; s. c. 4 Woods, 169 ; Mc- 
 Boston, H. T. & W. Ry. Co., 86 N. Y. Laughlin v. Swarm, 18 How. 217; City 
 107; Trustees of Columbia College v. Bank v. Skelton, 2 Blatchf. 14. See §88. 
 Thacher, 87 N. Y. 311 ; Leake's Digest of 6 Dorn v. Fox, 61 N. Y. 264. See § 89. 
 the Law of Contracts, 1152. But see 6 Northern Pacific R. R. Co. v. Bur- 
 Lloyd v. London, Chatham, & Dover Ry. lington & Missouri R. R. Co , 2 McCrary, 
 Co., 11 Jur. (n. s.) 380. 203. See § 215. 
 
 § 209. » Sheffield Water Works v. Yeo- 7 Woodruff v. North Bloomfield Gravel 
 
 mans, L. R. 2 Ch. App. 8. Mining Co., 18 Fed. R. 753. See § 214. 
 
 9 Earl of Bath v. Sherwin, 4 Brown 8 U. S. R. S. § 4921. See § 216. 
 
 Parliamentary Cases, 373. 9 U. S. R. S. § 4970. See § 217. 
 
 8 Cummings v. National Bank, 101 10 Shaw Stocking Co. v. Mack, 12 Fed. 
 
 U. S. 153, 157 ; Pelton v. National Bank, R. 707. See § 218. 
 
 101 U. S. 143, 148; Hills v. Exchange u Hughes v. Morden College, 1 Ves. 
 
 Bank, 105 U. S. 319. Sen 188.
 
 302 INJUNCTIONS. [CHAP. XVI. 
 
 filin"- of the bill, and his interest therein had not been determined 
 by forfeiture, surrender, or other lawful means. He was required 
 to swear to these facts in his bill, and according to the practice 
 before Lord Bacon's time, to give a bond to the amount of £10 
 as a security that the information so given was true. 12 Such 
 injunctions were formerly very common ; but have now fallen 
 into disuse. The last reported instance of one was in Lord 
 Hardwicke's time. 13 
 
 § 210. Injunctions to prevent Irreparable Injury for "which the 
 Remedy at Law is inadequate ; in general. — The most ordinary 
 ground upon which an injunction issues, and one, indeed, which 
 includes all but the first of those previously mentioned, is that, 
 otherwise, the plaintiff would suffer an irreparable injury, for 
 which damages at law would be no adequate remedy. It would 
 be impossible specifically to mention here all the different in- 
 stances in which an injunction issues for this reason ; but the 
 following is an enumeration of those of more frequent occurrence 
 which have not been previously described. An injunction will 
 issue on account of the inadequacy of the remedy at common 
 law ; to stay proceedings in other courts, either of law, equity, 
 or admiralty j 1 to restrain the indorsement or negotiation of notes 
 and bills of exchange, the sale of land, the sailing of a ship, the 
 transfer of stock, or the alienation of a specific chattel; 2 to 
 restrain the commission of every species of waste or act in the 
 nature of waste ; 3 to suppress the continuance of a public or pri- 
 vate nuisance ; 4 to prevent a threatened destructive trespass ; 5 to 
 prevent the infringement of patents ; 6 to prevent the violation of 
 copyright, whether by printed publications, or theatrical represen- 
 tation, or otherwise ; 7 to prevent the unauthorized use of trade- 
 marks, 8 and the opening of private letters; 9 to compel the per- 
 formance or prevent the breach of contracts other than those 
 for the payment of money only ; 10 and, under very extraordinary 
 circumstances, to compel the delivery of personal property 
 wrongfully withheld. 11 
 
 § 211. Injunctions to stay Proceedings in other Courts. — In- 
 junctions to stay proceedings in other courts are of much less 
 
 12 Eden on Injunctions, ch. xvi. p. 
 
 » § 213. 
 
 8 § 218. 
 
 240. 
 
 4 § 214. 
 
 9 §219. 
 
 13 Hughes v. Morden College, 1 Ve3. 
 
 5 §215 
 
 io § 220. 
 
 Sen. 188. 
 
 6 § 216. 
 
 « § 221. 
 
 § 210. » § 211. 2 § 212. 
 
 7 §217. 

 
 § 211.] INJUNCTIONS TO STAY PROCEEDINGS IN OTHEE COUETS. 303 
 
 frequent occurrence now that discovery and the inspection of 
 documents can be obtained at common law without the aid of 
 equity, than they were formerly ; but they are still occasionally 
 issued, especially in bankruptcy. 1 Such injunctions must not be 
 confounded with writs of prohibition, which are addressed to the 
 judges of a court, whereas injunctions are directed to the parties 
 to the proceedings which it is desired to restrain. 2 Ordinarily, 
 when two courts have a concurrent jurisdiction over the same 
 thing, whichever court was first possessed of the cause has a 
 right to proceed with the same, and proceedings in it will not be 
 prohibited or restrained in another. 3 Accordingly the Revised 
 Statutes of the United States expressly provide that " The writ 
 of injunction shall not be granted by any court of the United 
 States to stay proceedings in any court of a State, except in 
 cases where such injunction may be authorized by any law re- 
 lating to proceedings in bankruptcy." 4 Similarly, a State court 
 has no power to stay by injunction a proceeding in a court 
 of the United States. 5 It has been held, however, that a Fed- 
 eral court has power to issue an injunction to stay proceedings 
 in a State court which interfere with the enforcement of one of 
 its own judgments, and which have been instituted or continued 
 after the beginning or the removal of the suit in which the 
 injunction was granted. 6 But proceedings in a State court 
 cannot be enjoined upon the sole ground that the} r are taken 
 under a State statute which is repugnant to the Federal Consti- 
 tution. 7 A judge of a Circuit or District Court has no power to 
 enjoin the enforcement of a judgment in a State court after an 
 appeal to the Supreme Court of the United States and a super- 
 sedeas. That can only be done, if at all, by a justice of the 
 
 §211. > McLean v. Lafayette Bank, 3 386; Hamilton v. Walsh, 23 Fed. R. 
 
 McLean, 185. In re Schwarz, 14 Fed. It. 420 ; Tiff t v. Iron Clad Manuf. Co., 16 
 
 787. Blatchf. 48; Yick Wo. v. Crowley, 26 
 
 2 See Eden on Injunctions, ch. ii. Fed. R. 207. 
 
 8 Nicholas v. Nicholas, Free, in Ch. 6 McKim v. Voorhies, 7 Cranch, 279; 
 
 6 If. ; Daniell's Ch. Pr. (2d Am. ed.) 1845. Duncan v. Darst, 1 How. 301-306 ; City 
 
 But see the Erie Ry. Co v. Ramsey, 45 Bank of New York v. Skelton, 2 Blatchf. 
 
 N. Y. 637. 14. 
 
 * U. S. R. S. § 720. See The Slaugh- 6 French v. Hay, 22 Wall. 250 ; 
 
 ter House Cases, 10 Wall. 273 ; Haines t\ Dietzsch v. Huidekoper, 103 U. S. 494 ; 
 
 Carpenter, 91 U. S. 254 ; Dial v. Reynolds, Fisk v. Union Pacific R. R. Co., 10 
 
 96 U. S. 340; Rensselaer & S. R. R. Co. Blatchf. 518; Sharon v. Terry, 36 Fed. 
 
 v. Bennington & R. R. R. Co., 18 Fed. R. 337. 
 
 R. 617 ; Missouri, K. & T. Ry. Co. v. » Rensselaer & S. R. Co. v. Bennington 
 
 Scott, 13 Fed. R. 1J6, s. c. 4 Woods, & R. R. Co., 18 Fed. K. 617.
 
 304 INJUNCTIONS. [chap. XVI. 
 
 Supreme Court. 8 It has been held that a Federal court can 
 prevent by injunction the levy of a State sheriff under State 
 process against a State judgment-debtor upon the property of a 
 stranger to the suit and process ; 9 that a Federal court may 
 enjoin the inequitable use of a judgment of a State court, when 
 the validity of the judgment is not thereby impaired ; 10 and that 
 under the act of Congress limiting the liability of the owners of 
 ships, a District Court of the United States may issue a stay-order 
 restraining proceedings previously begun in State courts. 11 An 
 injunction granted by a State court to stay proceedings in the 
 same or another tribunal of the State remains in force after a 
 removal to a Federal court of the suit in which it was granted ; 12 
 although such an injunction could not be originally issued in the 
 Federal court in a suit removed from a State court. 13 An in- 
 junction will not be issued to stay a criminal proceeding, 14 a pro- 
 ceeding in its nature criminal, as for the removal of an officer, 15 
 or an application for a mandamus. 16 " This court," said Lord 
 Hardwicke, " has no jurisdiction to stay proceedings on a man- 
 damus ; nor to an indictment; nor to an information; nor to a 
 writ of prohibition, that I know of." 17 Judge Billings recently 
 said : " The extent to which such a bill will lie is well defined. 
 It is when the parties sought to be enjoined have, as plaintiffs, 
 submitted themselves to the court by a bill in equity as to the 
 matters affected by or involved in the criminal procedure. In 
 such case the court will by a decree affecting the parties so situ- 
 ated personally enjoin." 18 It was at first held that a court had 
 no power to restrain a defendant from suing in a foreign court ; 19 
 but it seems now to be established that it can do so, 20 though 
 
 8 Murray v. Overstoltz, 8 Fed. R. 110. Fed R. 670 ; s. c. 20 Fed. R. 567 ; In re 
 
 fl Cropper v. Coburn, 2 Curt. 465. Sawyer, 124 U. S. 200. 
 
 l° Linton v. Mosgrove, 14 Fed. R. 543. 15 In re Sawyer, 124 U. S. 200. 
 
 « In re Long Island, N. S. P. & F. 1G Lord Montague v. Dudman, 2 Ves. 
 
 Transportation Co., 5 Fed. R. 599. See Sen. 396, 398. 
 
 Providence & N. Y. S. S. Co. v. Hill " Lord Montague v. Dudman, 2 Ves. 
 
 Manuf. Co., 109 U. S. 578, -600. Sen. 306, 398. 
 
 12 Smith v. Schwed, 6 Fed. R. 455; 18 Spink t>. Francis, 19 Fed. R. 670, 671 ; 
 Perry v. Sliarpe, 8 Fed. R. 15. But see s. c. 20 Fed. R. 567, 569. So held in 
 Lawrence v. Morgan's R. R. & S. S. Co., Mayor of York v. Pilkington, 2 Atk. 302. 
 121 U. S. 634. 19 Love v. Baker, 1 Ch. Cas. 67, de- 
 
 13 Diggs v. Wolcott, 4 Cranch, 179. cided by Lord Clarendon ; but the re- 
 
 14 Lord Montague v. Dudman, 2 Ves. porter added, " sed qucere, for all the bar 
 Sen. 396 ; Attorney-General v. Cleaver, was of another opinion." 
 
 18 Ves. 211, '220; Saull v. Browne, L. R. 21 Bunbury v. Bunbury, 1 Beav. 318; 
 10 Ch. App. 64; Spink v. Francis, 19 Dehon v. Foster, 4 Allen (Mass.), 545;
 
 § 212.] INJUNCTIONS TO RESTEAIN ALIENATION OF PROPERTY. 305 
 
 such a power is exercised with great caution. 21 It has been held 
 that, in a suit by the United States to vacate a patent for an 
 invention, a preliminary injunction will not be granted to restrain 
 the prosecution by the defendant of suits for the infringement of 
 the patent. 22 Where a plaintiff is bringing suits upon the same 
 patent against different defendants, who rely upon the same 
 defenses, the court may stay proceedings in all but one till the 
 validity of the patent has been finally determined in the excepted 
 case. 23 But where some of the defendants set up different 
 defenses it was held that the court " could not restrain in part 
 and permit in part the prosecution of the cases. It would have 
 no right to issue an injunction which should [sic] have the effect 
 to split up the cases, enjoining their prosecution as to some 
 branches of the controversy and permitting it as to the others." 24 
 An injunction order providing " that all suits and proceedings 
 on the part of" certain persons "against the said bankrupt, to 
 collect the debt set forth, be and the same are hereby stayed to 
 await the determination of the Court in bankruptcy on the ques- 
 tion of the discharge therein," was held violated by those who, 
 after discontinuing a suit then pending, subsequently instituted 
 another to recover the same claim, with new allegations charging 
 fraud. 25 
 
 § 212. Injunctions to restrain the Alienation of Property. — In- 
 j unctions may be obtained to prevent the alienation of property 
 " where it would work irremediable or gross injustice." * An 
 injunction will, therefore, issue to prevent the transfer of notes, 
 bills of exchange, and other documents, whether negotiable or 
 not, whose possession gives their holder a presumptive title to 
 the rights which they evidence, 2 when obtained from the plain- 
 tiff by the defendant through duress, fraud, or other iniquity ; or 
 when forged; 3 or when, though the holder may have properly 
 
 En gel v. Scheuerman, 40 Ga. 206; Massie 25 In the Matter of Schwarz, 14 Fed. 
 
 v. Watts, 6 Craneh, 148. R. 787. 
 
 21 Vail v. Knapp, 49 Barb. (N. Y), 299 ; § 212. i Story's Eq. Jur. § 953. 
 Story's Eq. Jnr. §§ 899, 900. 2 Osborn v. United States Bank, 9 
 
 22 United States v. Colgate, 21 Fed. R. Wheat. 738, 845; Lloyd v. Gnrdon, 2 
 318. Swanst. 180 ; Hood v. Aston, 1 Russ. 412 ; 
 
 23 Birdsell v. Hagerstown Ag. Imp. Lord Clied worth v. Edwards, 8 Ves. 
 Man. Co., 1 Hughes, 64 ; Rumford Chein- 46 ; Reeve v. Parkins, 2 J. & W. 390 ; 
 ical Works v. Hecker, 5 Off. Gaz. 644 ; Schermerhorn v. L'Espenasse, 2 Dall. 
 Allis v. Stowell, 16 Fed. R. 783. 360. 
 
 m Dyer, J. in Allis v. Stowell, 16 Fed. 8 Esdaile v. LaNauze, 1 Y. & C. 394. 
 
 R. 783, 700. 
 
 20
 
 306 INJUNCTIONS. [CHAP. XVI. 
 
 obtained them, he threatens or is about to use them in an in- 
 equitable manner. 4 An injunction may be granted to prevent a 
 party from making vexatious alienations of land pending a suit 
 concerning the title to the same. 5 For it was said that, otherwise, 
 the plaintiff might be put to the expense of making each vendee 
 or grantor a party to the proceedings ; and, at all events, his 
 title, if he prevails in the suit, may be embarrassed by the new 
 outstanding claims of title under the threatened transfer. 6 The 
 sale or transfer, 7 or removal beyond the jurisdiction of the court 8 
 of a chattel, the loss of which could not be compensated in 
 damages, may also be thus restrained ; and so has been the sale 
 of other personal property. 9 Injunctions have also been granted 
 at the suit of a part-owner to prevent the sailing of a ship until 
 his share could be ascertained, and a bond given to secure him 
 against loss upon the voyage ; 10 to prevent the removal of timber 
 wrongfully cut down ; n and to prevent the trustees of a dissent- 
 ing chapel from appointing as a minister a person not duly 
 qualified according to its constitution. 12 
 
 § 213. Injunctions to prevent Waste. — An injunction will issue 
 to prevent waste, whether legal or purely equitable. 1 Waste is 
 a permanent injury to real estate committed by a person in pos- 
 session with a limited interest in the same. Legal waste consists 
 of such acts as would be considered waste at common law ; 
 equitable waste, of such acts as at law would not, under the 
 circumstances of the case, be considered waste, but which are 
 so esteemed in the view of a court of equity, from their manifest 
 injury to the inheritance, though not inconsistent with the legal 
 rights of the party committing them. 2 Such is wilful and wanton 
 injury to land committed by a tenant without impeachment for 
 
 4 Anon., 6 Madd. 10. v. Craig, 2 Mer. 137. But see Wilkinson 
 
 5 Daly v. Kelly, 4 Dow, 417 ; Echliff v. Dobbie, 12 Blatchf . 298. 
 
 v. Baldwin, 16 Ves. 267. But see Turner n Bradley v. Reed, 2 Pittsb. (Pa.) 519 ; 
 
 v. Wight, 4 Beav. 40. Anon., 1 Ves Jr. 93; Daniell's Ch. Pr. 
 
 6 Daniell's Ch. Pr. (2d Am.ed.) 1873. (2d Am. ed.) 1874. 
 
 7 Gibson v. Lewis, 11 Phila. (Pa.) 476; 12 Milligan v. Mitchell, 1 M. & K. 446. 
 Lady Arundell v. Phipps, 10 Ves. 139; §213. 1 Garth v. Cotton, 1 Dickens, 
 Daniell's Ch. Pr. (2d Am. ed.) 1872. 183; Thruston v. Mustin, 3 Cranch C. C. 
 
 8 Green v. Hanberry, 2 Brock. 403; 335; United States v. Gear, 3 How. 120; 
 Haly v. Goodson, 2 Mer. 77 ; Christie v. Fletcher i;. New Orleans N. E. R. R. Co., 
 Craig, 2 Mer. 137. 20 Fed. R. 345; Lanier v. Alison, 31 Fed. 
 
 9 Rateau v. Bernard, 3 Blatchf. 244 ; R. 100 ; Bispham's Eq. §§ 429-432. 
 Higgins v. Jenks, 3 Ware, 17. 2 Daniell's Ch Pr. (2d Am. ed.) 1854, 
 
 W Haly v. Goodson, 2 Mer. 77 ; Christie 1855.
 
 § 214] INJUNCTIONS TO PREVENT CONTINUANCE OF NUISANCE. 307 
 
 waste. 3 The interference of equity in cases of this kind is justified, 
 not only by the fear of irremediable injury, but also because the 
 tenant for life or years is considered to stand in a trust relation 
 toward the remainder-man. So anxious is equity to prevent 
 waste, that it has sustained a bill praying such an injunction 
 filed in behalf of a child in its mother's womb. 4 An injunction 
 will be granted to restrain acts in the nature of waste committed 
 by one in possession of land the title to which is in litigation. 5 
 
 § 214. Injunctions to prevent the Continuance of a Nuisance. — 
 The interference of equity to enjoin the continuance of a nui- 
 sance is not only due to the fact that the acts complained of 
 produce irreparable injury, but also is allowed to prevent the 
 multiplicity of suits that would be necessary were the plaintiff 
 confined to his remedy at common law. 1 Nuisances are of two 
 kinds : those which are injurious to the public at large, and 
 those which are injurious to the rights and interests of private 
 persons. 2 The use of this remedy to suppress a public nuisance 
 is of very ancient date. 3 It was applicable in England both to 
 nuisances strictly so called and to purprestures. " By purpres- 
 ture is meant, in its present acceptation, an incroachment upon 
 the Crown, either upon part of the demesne lands, or upon the 
 high roads, rivers, ports, or streets ; and the difference between 
 purprestures and nuisances consists in this, that where the jus 
 privatum of the Crown is invaded it is a purpresture, but where 
 the jus publicum is violated it is a nuisance." In cases of pur- 
 presture the remedy is either by information for an intrusion at 
 the common law, or by information in equity at the suit of the 
 attorney-general. The consequence of a judgment at common 
 law being the abatement of the erection or grievance com- 
 plained of, whether it is or is not a nuisance, whilst upon an 
 information in equity, where the trespass does not produce any 
 public injury the court may direct an inquiry whether it is 
 most beneficial to the Crown to abate the purpresture, or to 
 suffer the erection to remain and be assessed as a part of the 
 
 3 Vane v. Lord Barnard, 2 Vern. 738; 5 United States v. Parrott, 1 McAlI. 
 Gartli v. Sir John Hind Cotton, 1 Dickens, 271. 
 
 183 ; s. c. 1 White & Tudor's Leading § 214. 1 Fishmongers' Co. v. East In- 
 
 Cases in Equity (6th ed.), 806 ; Bispham's dia Co., 1 Dickens, 163 ; Attorney-General 
 
 Eq. § 434. v. Nichol, 16 Ves. 338, 343. 
 
 4 Musgrave v. Parry, 2 Vern. 710; * Daniell's Ch. Pr. (2d Am. ed.) 1857. 
 Lutterel'a Case, cited Prec. Ch. 50; 8 Daniell's Ch. Pr. (2d Am. ed.) 1857. 
 Scatterwood v. Edge, 1 Salk. 229.
 
 308 INJUNCTIONS. [CHAP. XVI. 
 
 "legal revenue." 4 Cases of public nuisance may be enjoined at 
 the suit of the attorney-general, who in England sues by infor- 
 mation. 5 A public nuisance may also be restrained at the suit 
 of any who have suffered by it special damage distinct from 
 that which it causes to the public at large ; but not otherwise. 6 
 A bill, for example, may be filed by a State to enjoin the erec- 
 tion of a bridge across a navigable stream which will injure her 
 commerce; 7 but not by a city for a similar reason, 8 unless 
 its property, for example a wharf, is thereby injured. 9 The 
 United States may obtain an injunction against a nuisance which 
 threatens injur}'' to works in aid of commerce which are con- 
 structed under the authority of the national government. 10 A 
 private nuisance is an act, or series of acts, unaccompanied by 
 an act of trespass, which cause a substantial injury to a person's 
 property, health, or comfort. It will always be restrained when 
 it would otherwise cause an irreparable injury or a multiplicity 
 of suits. 11 " It used to be thought, that if a man knew there 
 was a nuisance, and went and lived near it, he could not recover, 
 because, it was said, it is he that goes to the nuisance, and not 
 the nuisance to him. This, however, is not the law now." 12 
 Formerly an injunction was rarely issued to restrain a nuisance 
 until the plaintiff's right of action had been established at law ; 
 " but now a suit at law is no longer a necessary preliminary, and 
 the right to an injunction, in a proper case, in England and most 
 of the States, is just as fixed and certain as the right to any other 
 provisional remedy." 13 Formerly, it was a fundamental objec- 
 
 4 Daniell's Ch. Pr. (2d Am. ed ) 1857, 10 United States v. Mississippi & R. R. 
 
 citing Attorney-General v. Richards, 2 Boom Co., 3 Fed. R. 548 ; 8. c. 1 Mc- 
 
 Anst. 603 ; Attorney-General v. Johnson, Crary, 601. 
 
 2 J. Wil. 87. See also United States v. n Osburne v. Barter & Goddins, anno 
 
 Gear, 3 How. 120. 26 Eliz., Choyce Cases in Chancery (ed. 
 
 6 Daniell's Ch. Pr. (2d Am. ed.) 1858. of 1870), p. 176 ; Parker r. Winnipiseo- 
 « Baines v. Baker, Amb. 158; Missis- gee Lake C. & W. Co., 2 Black, 545; 
 
 sippi & Missouri R. R. Co. v. Ward, 2 Woodruff v. North Bloomfield Gravel 
 
 Black, 485 ; Georgetown v. Alexandria Mining Co., 18 Fed. R. 753 ; St. Helen's 
 
 Canal Co., 12 Pet. 91; Irwin v. Dixion, 9 Smelting Co. ?;. Tipping, 11 H. L. C. 
 
 How. 10 ; Spooner v. McConnell, 1 Mc- 642. 
 
 Lean, 337 ; Works v. Junction R. R., 5 12 Byles, J., in Hole v. Barlow, 4 C. B. 
 
 McLean, 425. n. s. 334. See St. Helen's Smelting Co. 
 
 7 Pennsylvania v. "Wheeling & Belmont v. Tipping, 11 H. L. C. 642; Campbell 
 Bridge Co., 13 How. 518. v. Seaman, 63 N. Y. 568. 
 
 8 Georgetown v. Alexandria Canal Co., 13 Judge Earl in Campbell v. Seaman, 
 12 Pet. 91. 63 N. Y. 568, 582. See, however, Irwin v. 
 
 9 St. Louis v. Knapp Co., 104 U. S. Dixion, 9 How. 10; Murtagh v. Philadel- 
 658. phia, 1 Weekly Notes of Cases, 37. 

 
 § 215.] INJUNCTIONS TO RESTRAIN TRESPASS. 309 
 
 tion to an order for an injunction to restrain a nuisance to land 
 when the legal title was disputed, that the order contained 
 no provision for putting the question in a course of legal in- 
 vestigation. 14 
 
 § 215. Injunctions to restrain Trespass. — Injunctions to restrain 
 trespass are of quite recent origin. The first that is to be found 
 in the books was granted by Lord Thurlow. 1 They are only 
 granted when the trespass is destructive or continuous. The 
 rule upon the subject has been thus stated by Vice-Chancellor 
 Kindersley : " Where, therefore, the plaintiff is in possession and 
 the person doing the acts complained of is an utter stranger, 
 not claiming under color of right, the tendency of the court 
 is not to grant an injunction, unless there are special circum- 
 stances, but to leave the plaintiff to his remedy at law ; though, 
 where the acts tend to the destruction of the estate, the court 
 will grant it. 2 But where the party in possession seeks to re- 
 strain one who claims by adverse title, then the tendency will 
 be to grant the injunction, at least where the acts done either 
 did or might tend to the destruction of the estate." 3 The 
 destruction of credit by an illegal seizure of one's stock in trade, 4 
 and the injury to a farm done by the illegal taking of all the 
 stock and tools upon it, have been held instances of such irrep- 
 arable injury. 5 An attempt by a railroad company to build its 
 road upon private property without payment of compensation 
 may be thus prevented. 6 It is not certain, whether the fact that 
 a person who threatens to commit a wrong is insolvent and unable 
 to pay any damages which could be recovered at law, is in itself 
 a sufficient ground for the interference of equity by injunction ; 
 but the weight of authority seems to hold that it is. 7 It was 
 
 " Harman v. Jones, Cr. & Ph. 299 ; s. c. 4 Fed. R. 298. See also Missouri, 
 
 Sanxter v. Foster, Cr. & Ph. 302. K. & T. Ry. Co. v. Texas & St. Louis Ry. 
 
 § 215. 1 Flamang's Case, cited by Co., 10 Fed. R. 407. 
 Lord Eldon iu Hanson v. Gardiner, 7 7 Connolly v. Belt, 5 Cranch C. C. 405 ; 
 
 Ves. 305. M'Elroy v. Kansas City, 21 Fed. R. 257, 
 
 2 See Jerome v. Ross, 7 J. Ch. (N. Y.) 262 ; Agar v. Regent's Canal Co., cited 
 
 315; Troy & B. R. R. Co. v. Boston, H. in 1 Swanst. 250; Musselman v. Marquis, 
 
 T. & W. Ry. Co., 80 N. Y. 107; Van 1 Bush (Ky.), 463; Hicks v. Compton, 18 
 
 Norden v. Morton, 99 U. S. 378. Cal. 206 ; Britton v. Hill, 12 C. E. Green 
 
 8 Lowndes v. Bettle, 33 L. J. Ch. 461. (N. J), 389 ; Lloyd v. Heath, Busbee's Eq. 
 
 4 Watson v. Sutherland, 5 Wall. 74; (N. C.)39; Gause i\ Perkins, 3 Jones Eq. 
 Cropper v. Coburn, 2 Curt. 465. (N. C.) 177; Chesapeake & Ohio R. R. 
 
 5 Breeden v. Lee, 2 Hughes, 484. Co. v. Patton, 5 W. Va. 234 ; Bispham'a 
 
 6 Northern Pacific R. R. Co. v. Bur- Eq. § 436 ; Cam v. Met. El. Ry. Co., 46 
 lington & M. R. R. Co., 2 McCrary, 203 ; N. Y. Super. Ct. 138. Contra, Heilman v.
 
 310 INJUNCTIONS. (CHAP. XVI. 
 
 held, where there was a dispute as to the possession and as to 
 right to the possession of a railroad track, that the court would 
 not interfere by injunction to assist in " a scramble for posses- 
 sion." 8 A number of cases decided in the courts of different States 
 hold that an injunction cannot be obtained to restrain an illegal 
 arrest ; since it is said that the writ of habeas corpus followed by 
 an action for damages always affords an adequate remedy for 
 any injury resulting therefrom; 9 but if the result of the arrests 
 would be an irreparable injury to the business of the complainant, 
 an injunction might perhaps be issued. 10 
 
 § 216. Injunctions to restrain the Infringement of Patents. — 
 Injunctions to restrain the infringement of patents and copy- 
 rights are of ancient use in equity. They are founded upon both 
 the irreparable injury that would otherwise be caused to the com- 
 plainant, and the desire of the court to prevent a multiplicity of 
 suits. 1 This inherent power of the courts is confirmed in the United 
 States by statute. The provision of the Revised Statutes author- 
 izing injunctions to restrain the infringement of patents is as 
 follows : " The several courts vested with jurisdiction of cases 
 arising under the patent laws shall have power to grant injunc- 
 tions according to the course and principles of courts of equity, 
 to prevent the violation of any right secured by a patent upon 
 such terms as the court may deem reasonable ; and upon a decree 
 being rendered in any such case for an infringement, the com- 
 plainant shall be entitled to recover in addition to the profits to 
 be accounted for by the defendant, the damages the complainant 
 has sustained thereby ; and the court shall assess the same or 
 cause the same to be assessed under its direction. And the 
 court shall have the same power to increase such damages, in its 
 discretion, as is given to increase damages found by verdicts in 
 
 The Union Canal Co., 37 Pa. St. 100 ; 75 N. Y. 362. See also Yick Wo v. Crow- 
 Thompson v. Williams, 1 Jones Eq. ley, 26 Fed. Rep. 207. 
 (N. C.) 176 ; Nessle v. Reese, 19 Abb. 10 Louisiana State Lottery Co. v. Fitz- 
 Pr. (N. Y.) 240; High on Injunctions, patrick, 3 Woods, 222 ; Dinsmore v. New 
 § 18. York Board of Police, 12 Abb. N. Cas. 
 
 8 St. Louis, K. C. & C. Ry. Co. v. (N. Y.) 436 ; Manhattan Iron Works Co. 
 Dewees, 23 Fed. R. 691. v. French, 12 Abb. N. Cas. (N. Y.) 446. 
 
 9 Cohen v. Commissioners of Golds- § 216. J Eden on Injunctions, chs. xii. 
 boro, 77 N. C. 2; Burnett v. Craig, 30 and xiii. ; Daniell's Ch. Pr. (5th Am. ed.) 
 Ala. 135; Burch v. Cavanaugh, 12 Abb. 1642-1648; Hogg v. Kirby, 8 Ves. 215; 
 Pr. n. s. (N. Y.) 410; Davis v. American Wilkins v. Aikin, 17 Ves. 422. 
 
 Society for Prevention of Cruelty to An- 
 imals, 6 Daly (N. Y.), 81 ; s. c. on appeal, 

 
 § 216.] TO RESTRAIN THE INFRINGEMENT OF PATENTS. 311 
 
 actions in the nature of actions of trespass upon the casa." 2 
 It seems to have been formerly the opinion that courts of equity 
 would not interfere to protect a patent right by injunction, until 
 the right had been established at law ; but since Lord Eldon's 
 time their jurisdiction to thus interfere, when the title of a 
 complainant is established by the preponderance of evidence, 
 has been undisputed. 3 In a recent case Judge Lowell said: 
 "The principles which govern courts in granting or refusing 
 preliminary injunctions in patent cases are well established. As 
 a general rule, if the plaintiff has made out a clear title, and the 
 question of infringement presents no difficulty, an injunction 
 will be granted. The hearing is had upon ex parte affidavits, 
 and if the questions to be decided are difficult and complicated, 
 especially if they involve disputed facts which have never been 
 passed upon by a court or jury, then, although the court may 
 be inclined to think the complainant is right, yet it will not 
 interfere at this stage of the cause, whether the questions relate 
 to title or to infringement. And even where the title is clear, 
 yet if there are peculiar circumstances which show that the 
 defendant's interests would be injuriously affected by an injunc- 
 tion, while those of the plaintiff would not be so affected by 
 refusing it, it may be refused. Such were the cases of Howe v. 
 Morton, Fisher's Pat. Cases, vol. i. 586, decided by Judge Sprague, 
 and the Burring-machine case, Morris v. Lowell M'f'g Co., 
 Fisher's Pat. Cases, vol. iii. 67, which came before me ; in both 
 of which the patent was about to expire, and the defendant's 
 business would be very seriously interfered with for the few 
 weeks that the exclusive right would remain in force, only to be 
 resumed again immediately afterward at great expense and loss. 
 There is, therefore, always an element of discretion entering into 
 the consideration of this question, and all that a complainant is 
 entitled to is the best judgment of the court upon a question of 
 judicial discretion, and not absolutely to an injunction on any 
 given state of facts. . . . These cases being tried, as I have 
 said, on ex parte evidence, must be decided on broad views of 
 the rights of the parties. It is usual to present proof, either 
 of long and general acquiescence in the plaintiff's exclusive 
 
 2 U. S. R. S. § 4921. See supra, §§ 77, Thompson, 3 Meriv. G22 ; Pierpont v. 
 
 145. Fowle, 2 W. & M. 23; Motte v. Bennett, 
 
 8 Universities of Oxford and Cam- 2 Fisher, 642; Kerr on Injunctions, 272. 
 bridge v. Richardson, 6 Ves. 689 ; Hill v.
 
 312 INJUNCTIONS. [CHAP. XVI. 
 
 rights, or of their having been sustained by the courts. The 
 ground on which acquiescence is important is that it shows 
 exclusive possession, which, if it has been of long standing, open 
 and notorious, is a clear foundation of a presumption of title. 
 It is not always, however, so satisfactory as positive adjudica- 
 tions, because it may have arisen from the comparatively small 
 commercial value of the invention, and in that case shows only 
 that no one has thought it worth infringing." 4 If previous 
 adjudications in the same or other Circuit Courts have established 
 the validity of the plaintiff's patent, a preliminary injunction will 
 be granted him almost as of course in a subsequent suit, to prevent 
 the infringement of the same by a person not a party to those 
 suits, 5 unless the latter can produce new evidence, 6 to show 
 that such judgments were obtained by consent, collusion, or 
 fraud. 7 In such cases the courts will usually examine only the 
 question of the infringement. 8 But it may, and before granting' 
 a perpetual injunction often does, reconsider the whole, ques- 
 tion. 9 Otherwise, however, when the patent is of recent issue, 
 and its validity is denied by sufficient evidence to raise a reason- 
 able doubt in the mind of the judge as to a question either of 
 fact or of law ; a preliminary injunction will usually be refused ; 10 
 although now that, in the Federal courts, the same judges sit 
 both at law and in equity, and when sitting in equity have the 
 power to submit a disputed question of fact to a jury, such a 
 
 4 Potter v. Whitney, 1 Lowell, 87, 88, 15 Blatchf. 315. But see Orr v. Little- 
 89. See also Hill v. Thompson, 3 Meriv. field, 1 W. & M. 13. 
 
 622 ; Washburn & Moen Manuf. Co. v. 8 Robertson v. Hill, 6 Fisher, 4G5 ; 
 
 Haish, 4 Fed. R. 900; Foster v. Moore, Odorless Excavating Co. v. Lauman, 12 
 
 1 Curt. 279 ; McKay v. Dibert, 5 Fed. R. Fed. R. 788. 
 
 687. 9 Many v. Sizer, 1 Fisher Pat. Cas. 31 ; 
 
 5 Newall v. Wilson, 2 DeG., M. & G. Day v. Hartshorn, 3 Fisher, 32 ; Parker 
 280 ; Orr v. Littlefield, 1 W. & M. 13 ; v. Sears, 1 Fisher Pat. Cas. 93 ; Poppen- 
 Thayer v. Wales, 9 Blatchf. 170; s. c. husen v. Falke. 4 Blatchf. 493; Sargent 
 5 Fisher, 130 ; Kirby Bung Manuf. Co. v. Manuf. Co. v. Woodruff, 5 Biss. 444. 
 White, 1 Fed. R. 004 ; High on Injunc- 10 Parker v. Sears, 1 Fisher Pat. Cas. 
 tions, §§ 953-959; Kerr on Injunctions, 93; American Nicolson Pavement Co. v. 
 273. But see Many v. Sizer, 1 Fisher Pat. City of Elizabeth, 4 Fisher, 189; Dodge 
 Cas. 31. . v. Card, 2 Fisher, 116 ; Sullivan v. Red- 
 
 6 Page v. nolmes Burglar Alarm Tel. field, 1 Paine, 441 ; Winans v. Eaton, 1 
 Co., 2 Fed. R. 330 ; s. c. 18 Blatchf. Fisher Pat. Cas. 181 ; Mo wry v. Grand 
 1 18. Street & N. R. Co., 10 Blatchf. 89 ; s. c. 5 
 
 7 American Nicolson Pavement Co. Fisher, 586; Smith v. Cummings, 1 Fisher 
 ♦ v. City of Elizabeth, 4 Fisher, 189 ; Page Pat. Cas. 152 ; McGuire v. Eames, 15 
 
 t\ H. B. A. Tel. Co, 2 Fed. R. 330; Blatchf. 312; Kirby Bung Manuf. Co. v. 
 American Middlings Purifier Co. v. Vail, White, 1 Fed. R. 604.
 
 § 216.] TO RESTRAIN THE INFRINGEMENT OF PATENTS. 313 
 
 court usually determines the whole question upon its final de- 
 cree, without adopting the circuitous method of first directing 
 a trial at law. 11 Formerly the custom was, when any doubt 
 remained in the mind of the court after the final hearing, to deny 
 the complainant a perpetual injunction at that time ; but to 
 direct that the cause " stand over a reasonable time, for the 
 bringing of a suit at law against the defendants for an infringe- 
 ment; and, if such a suit is brought, until a sufficient time for 
 the trial thereof has elapsed. And if, in such suit, there shall be 
 final judgment for the plaintiffs, they will be entitled to a decree 
 for injunction and account, as prayed for in the bill ; and if, in 
 such suit, there shall be final judgment for the defendants, the 
 bill will be dismissed with costs ; and so, also, it will be dis- 
 missed with costs on an application of the defendants, if such 
 suit is not brought within a reasonable time, and prosecuted with 
 reasonable diligence." 12 An ex parte application for an injunc- 
 tion to restrain the infringement of a patent should, it seems, be 
 supported by an affidavit, or an allegation in a bill verified by 
 affidavit of the plaintiff, stating that he believes that the person 
 to whom the patent was issued was the original inventor thereof, 
 or that the invention was new, or had not been introduced into 
 public use in the United States for more than two years prior to 
 the application upon which the patent was issued. 13 After the 
 expiration of a patent an injunction may issue to prevent the use 
 of a machine made while the patent was in force; and an injunc- 
 tion previously issued will remain in force so as still to forbid 
 such a use. 14 But a bill praying for such an injunction must 
 allege either that the defendant is using machines manufactured 
 during the term of the patent and in violation of it, or that the 
 plaintiff has cause to fear, such a use. 15 An injunction against 
 the manufacture or sale of articles in violation of a patent right 
 is violated by their sale or manufacture within the United States, 
 but beyond the jurisdiction of the court. 16 " In deciding whether 
 a given complainant has made out a prima facie case for a pre- 
 
 11 See Pierpont v. Fowle, 2 W. & M. Sullivan v. Recjfiehl, 1 Paine, 441 ; U. S. 
 23, 36. R. S. §§ 4886, 4887. 
 
 12 Judge Hall in Muscan Hair Manu- 14 American Diamond Pock Boring Co. 
 facturing Co. v. American Hair Manu- v. Rutland Marble Co , 2 Fed. R. 356. 
 facturing Co., 1 Fisher Patent Cases, i 6 American Diamond Rock Boring Co. 
 320, 325. v. Rutland Marble Co., 2 Fed. R. 355. 
 
 13 Hill v. Thompson, 3 Meriv. 622; 10 Macaulay v. White Sewing Machine 
 Sturz v. De La Rue, 5 Russ. 322, 329; Co., 9 Fed. R. 698.
 
 314 INJUNCTIONS. [CHAP. XVI. 
 
 liminary injunction to restrain infringement of a patent, the judge 
 is guided by the presence or absence of two presumptions and 
 one certainty. Those presumptions relate to the validity of the 
 patent and to the defendant's infringement thereof, and that cer- 
 tainty relates to the complainant's title thereto. If that certainty 
 or either of those presumptions are absent in a given case, no 
 preliminary injunction will be granted; but such a writ will not 
 be granted where they are all present, unless the defendant inter- 
 poses some good defence to the motion or unless the court takes 
 a bond from the defendant instead of subjecting him to an 
 injunction." 17 
 
 § 217. Injunctions to restrain the Infringement of Copyrights. — 
 The Revised Statutes authorize injunctions to prevent the in- 
 fringement of copyrights, as follows : " The circuit courts, and 
 district courts having the jurisdiction of circuit courts, shall have 
 power, upon bill in equity, filed by any party aggrieved, to grant 
 injunctions to prevent the violation of any right secured by the 
 laws respecting copyrights, according to the course and prin- 
 ciples of courts of equity, on such terms as the court may deem 
 reasonable." 1 This statute is, however, merely declaratory of 
 the previous rule in equity which, it was said by Lord Eldon, 
 was "founded upon this; that the law does not give a complete 
 remedy to those whose literary property is invaaed ; for if pub- 
 lication after publication is to be made a distinct cause of action, 
 the remedy would soon become worse than the disease. This 
 court, therefore, interposes by injunction ; but not in cases where 
 an action cannot be maintained." 2 The rules regulating the 
 issue of injunctions to prevent the infringement of copyrights are 
 in general similar to those regulating the issue of injunctions 
 restraining the infringement of patents. The plaintiff must 
 show a clear title to his copyright, and an infringement or threat- 
 ened infringement by the defendant. 3 The injunction will be 
 denied if the defendant shows that the plaintiff has consented to 
 his infringement, or has been guilty of unreasonable delay after 
 he learned that it had occurred or was threatened. 4 How long 
 
 17 "Walker on Patents, § 665. , Senile, 12 Fed. R. 97 ; Drone on Copy- 
 
 § 217. » U. S. R. S. § 4070. right, ch. xi. pp. 496-543. 
 2 Lawrence v. Smith, Jacob, 471, 472. 4 Rundell v. Murray, Jacob, 311 
 
 8 Chase v. Sanborn, 6 Off. Gaz. 932 ; Saunders v. Smith, 3 Myl. & Cr. 711 
 
 Parkinson v. Laselle, 3 Saw. 330 ; Law- Chappell v. Sheard, 1 Jur. n. s. 996 
 
 reuce v. Dana, 4 Cliff. 1 ; Yuengling v. Tinsley v. Lacy, 1 Hem. & M. 747 ; Keene
 
 § 217.] TO RESTRAIN THE INFRINGEMENT OF COPYRIGHTS. 315 
 
 a time must have elapsed to bar the plaintiff's right to an in- 
 junction has not been definitely settled. It has been held in 
 England, however, that an injunction may be obtained after the 
 copyright has been infringed to the plaintiff's knowledge during 
 four years. 5 Moreover, delay will not prejudice him, if solely 
 caused by his waiting until the result of litigation, whether 
 prosecuted by himself or others, to settle a doubtful question of 
 law involving the validity of his title. 6 As has been said, an in- 
 junction will not be granted unless the plaintiff shows a plain 
 title to the copyright which he claims ; but " the copyright is 
 prima facie evidence that he is the author, and the burden of 
 proof is upon the defendant to show the contrary," 7 or that, for 
 some other reason, there is a defect in the title claimed. 8 And 
 the court will protect an equitable title against infringement 
 unless the defendant possesses superior equities to those of the 
 complainant. 9 The complainant is not obliged to prove damage 
 from the breach of copyright. 10 If there is any doubt concerning 
 the infringement and its ascertainment will necessitate the ex- 
 amination of a great deal of matter, the court, in this country, 
 usually directs a reference to a master to hear testimony and 
 state the facts together with his opinion for its consideration, 
 before granting an injunction. 11 Such a reference is usually 
 ordered before the final hearing, but may be at the decree. 12 In 
 England, however, laborious examinations have frequently been 
 made by the judges themselves, unassisted, except by counsel. 13 
 Instead of a reference, an Issue at law may be directed. 14 The 
 plaintiff need not specify in either his bill or his affidavit the 
 parts of the defendant's publication which he thinks have been 
 taken from his work. A general allegation of infringement 
 
 v. Clarke, 5 Robertson (N. Y.), 38, 06, 67 ; u Folsom v. Marsh, 2 Story, 100; Webb 
 
 Miller v. M'Elroy, 1 Am. Law Reg. 198. v. Powers, 2 W. & M. 497 ; Story ». Derby, 
 
 5 Hogg v. Scott, L. R. 18 Eq. 444, 4 McLean, 160 ; Greene v. Bishop, 1 
 454 ; Drone on Copyright, 504, 512. Cliff. 186 ; Lawrence v. Dana, 4 Cliff. 1 ; 
 
 6 Buxton v. James, 5 De G. & Sm. 80; Drone on Copyright, 513. But see Smith 
 Rumford Chemical Works v. Vice, 14 v. Johnson, 4 Blatchf. 252. 
 
 Blatchf. 179. 12 Lawrence v. Dana, 4 Cliff. 1 ; Drone 
 
 7 Chief Justice Taney in Reed v. on Copyright, 513. 
 
 Carusi, Taney, 72, 74. 13 Lewis i-.Fullarton, 2 Beav. 6 ; Mur- 
 
 8 Drone on Copyright, 499; Story's ray w.' Bogue, 1 Drew. 353; Jarrold v. 
 Eq. Jur. § 936, note 6. Houlston, 3 Kay & J. 708 ; Pike v. Nicho- 
 
 9 Little v. Gould, 2 Blatchf. 165. las, L. R. 5 Ch. 251 ; Drone on Copy- 
 10 Reed v. Holliday, 19 Fed. R. 325, right, 513. 
 
 327. w jollie v. Jaques, 1 Blatchf. 618.
 
 316 INJUNCTIONS. [CHAP. XVI. 
 
 accompanied by a verification by affidavit of the two works is 
 sufficient. 15 The practice has been that, " when the injunction 
 has been moved for, the two works have been brought into 
 court, and the counsel have pointed out to the court the passages 
 which they rely upon as showing the piracy." 16 Clearer proof 
 and a stronger case than would be sufficient to entitle a plaintiff 
 to an injunction after the hearing is often required before he can 
 obtain an interlocutory injunction. 17 The difficulty of accurately 
 determining the damages resulting from an unauthorized publi- 
 cation of his work will often have weight in leading the court to 
 grant a preliminary injunction, when otherwise it might refuse 
 one. 18 But, on the other hand, the court will often refuse an 
 injunction before the hearing, when it is plain that the defendant 
 would suffer more injury from being obliged to discontinue the 
 publication than will result to the plaintiff from his continuing 
 it. 19 It has been held, in England, that if a work is libellous, im- 
 moral, or blasphemous, which last named term would include one 
 " which impugned the doctrines of the immateriality and immor- 
 tality of the soul," 20 there can be no copyright therein, and a 
 piratical edition thereof will not be enjoined. 21 These decisions, 
 however, one of which stigmatized as unworthy of protection 
 Byron's " Cain," 22 have been severely criticised, 23 and it is not 
 likely that they would be fully sustained if the question should 
 be raised in the United States ; although in a case in the Federal 
 courts Judge Deady assigned as one among several reasons for 
 refusing to enjoin an unauthorized representation of " The Black 
 Crook," that it " only attracts attention as it panders to a pru- 
 rient curiosity or an obscene imagination by very questionable 
 
 I 6 Farmer v. Calvert Lithographing Co., 137. But see Emerson v. Davies, 3 Story, 
 
 I Flippin, 228, 235 ; Sweet v. Maugham, 768. 
 
 II Simons, 51; Drone on Copyright, 20 Lawrence v. Smith, Jacob, 471. 
 513. 21 Walcot v. Walker, 7 Ves. 1 ; Stoek- 
 
 16 Sweet v. Maugham, 11 Simons, 51, dale v. Onwhyn, 5 Barn. & Cr. 173; 
 53, Murray v. Benbow, 6 Petersd. Abr. 559 ; 
 
 17 Johnson v. Wyatt, 2 De G., J. & S. Lawrence v. Smith, Jacob, 471 ; Southey 
 18 ; Drone on Copyright, 517, 518. v. Sherwood, 2 Meriv. 435. But see Bur- 
 
 18 Matthewson v. Stockdale, 12 Ves. nett v. Chetwood, 2 Meriv. 441. 
 
 270 ; Wilson v. Luke, 1 Victorian Law az Murray v. Benbow, 6 Petersd. Abr. 
 
 Rep. 127 ; Prince Albert v. Strange, 1 Mac. 559. 
 
 & G. 25, 46 ; Little v. Gould, 2 Blatchf. 23 Campbell's Lives of the Lord Chan- 
 
 165 ; Drone on Copyright, 516-519. cellors, ch. ccxiii. ; Drone on Copyright, 
 
 1 9 Spottiswoode v. Clarke, 2 Phil. 154 ; 181-196. 
 Cox v. Land & Water Journal Co., L. R. 
 
 9 Eq. 324 ; Lodge v. Stoddart, 9 Reporter,
 
 § 218.] TO RESTRAIN THE UNLAWFUL USE OF TRADE-MARKS. 317 
 
 exhibitions and attitudes of the female person." 24 The injunc- 
 tion forbids the publication of only so much of the defendant's 
 work as infringes upon the copyright of the plaintiff. 25 
 
 § 218. Injunctions to restrain the Unlawful Use of Trade-marks. 
 
 Injunctions to restrain the use of trade-marks by others 
 
 than their owners are granted by courts of equity, it has been 
 said, partly to prevent the fraud upon the public which 
 would otherwise be perpetrated, and partly on account of the 
 difficulty of estimating the injury which would be caused the 
 owner of a trade-mark from its improper use. 1 The former 
 ground of the interference of the court has, however, been 
 expressly repudiated by a great judge, Lord Westbury, who 
 said, when Lord Chancellor, in delivering the judgment in a 
 leading case : " Imposition upon the public becomes the test 
 of the property in the trade-mark having been invaded and 
 injured, but not the ground on which the Court rests its juris- 
 diction." 2 " Trade-marks are of two kinds. They may consist 
 of pictures or symbols or a peculiar form and fashion of label, or 
 simply of a word or words, which, in whatever form printed or 
 represented, continue to be the distinguishing mark of the man- 
 ufacturer who has appropriated it or them, and the name by 
 which his products are known and dealt in." 3 " Where the 
 trade-mark consists of a picture or symbol, or in any peculiarity 
 in the appearance of the label, the imitation must be such as to 
 amount to a false representation, liable to deceive the public and 
 enable the imitator to pass off his goods as those of the person 
 whose trade-mark is imitated. And when there is such an ab- 
 sence of resemblance that ordinary attention would enable cus- 
 tomers to discriminate between the trade-marks of different 
 parties, the court will not interfere." 4 " But where the trade- 
 mark consists of a word, it may be used by the manufacturer 
 who has appropriated it, in any style of print, or in any form of 
 
 24 Judge Deady in Martinetti v. Ma- 2 The Leather Cloth Co. v. The Amer- 
 guire, 1 Deady, 216, 223. ican Leather Cloth Co., 10 Jur. (s. s.) 
 
 2 5 Webb v. Powers, 2 W". & M. 497; 81. But see the language of Judge Coxe 
 Story v. Holcombe, 4 McLean, 306 ; in Shaw Stocking Co. v. Mack, 12 Fed. 
 Farmer v. Elstner, 33 Fed. R. 494. R. 707, 710. 
 
 § 218. ! Perry v. Truefit, 6 Beav. 66, 3 Judge Rapallo in Hier v. Abrahams, 
 
 73 ; Croft v. Day, 7 Beav. 84 ; Leather 82 N. Y. 510, 523. 
 
 Cloth Co. v. The American Leather Cloth 4 Judge Rapallo in Hier v. Abrahams, 
 
 Co., 10 Jur. (n. s.) 81 ; Walton v. Crow- 82 N. Y. 619, 523. 
 ley, 3 Blatchf. 440 ; Shaw Stocking Co. 
 v. Mack, 12 Fed. R. 707.
 
 318 INJUNCTIONS. [CHAP. XVI. 
 
 label, and its use by another is unlawful. The statute " of New 
 York "requires only that the imitation should be either the same 
 to the eye, or in sound to the ear as the genuine trade-mark, 
 and this accords with the authorities." 5 "To make an exclu- 
 sive right to use a name or symbol as a trade-mark, such use must 
 be new ; if ever before used as applicable to a like article, it 
 cannot be exclusively appropriated. If the article is known 
 to commerce in general, by the term claimed, as a trade-mark, 
 the claim is ill-founded. If the term employed indicates the 
 nature, kind or quality of the article, instead of showing its 
 origin, an exclusive right to its use is not maintainable." 6 In 
 accordance with the maxim that he who seeks equity must 
 come with clean hands, it is well established that, if the trade- 
 mark for which protection is sought contains representations 
 calculated to deceive the public, an injunction will be denied the 
 plaintiff. 7 An act of Congress allowing suits to enjoin the use 
 of trade-marks to be brought in a Federal court against a 
 citizen of the same State as the complainant, was held uncon- 
 stitutional. 8 
 
 § 219. Injunctions to prevent the Opening of Letters. — In Eng- 
 land an injunction has been issued to prevent the tenants of a 
 building formerly occupied by the members of another firm from 
 opening letters addressed to the latter. 1 
 
 § 220. Injunctions to compel the Performance or' prevent the 
 Breach of Contracts not affecting Land. — The performance of a 
 contract not affecting lands will be enforced in equity by means 
 of an injunction when, and only when, a judgment for damages 
 would be no adequate remedy for its breach; 1 and it does not re- 
 quire a purely personal act which it would be impossible for the 
 court to enforce. 2 The inadequacy of the remedy at law which 
 will entitle one to specific performance of a contract may, it has 
 been held, be proved by the fact that the damages in money 
 
 5 Judge Rapallo in Hier v. Abrahams, 8 Trade-Mark Cases, 100 U. S. 82. 
 
 82 N. Y. 510, 521. § 210. i Scheile v. Brakell, 11 W. R. 
 
 6 Van Beil v. Prescott (The Rye & 796. 
 
 Rock Case), 82 N. Y. 630. § 220. * Buxton v. Lister, 3 Atk. 383; 
 
 7 Leather Cloth Co. v. The American Robinson v. Cathcart, 2 Cranch C. C. 590 ; 
 Leather Cloth Co., 11 H. L. C. 523 ; s. c. Tayloe v. Merchants' Fire Ins. Co., 9 How. 
 in a lower court, 10 Jur. (n. b.) 81; 300; Very v. Levy, 13 How. 345. 
 Fowle v. Spoar, 7 Penn. L.J. 176; Heath 2 Clarke v. Price, 2 Wilson Ch. Cases, 
 v. Wright, 3 Wall. Jr. 141 ; Ginter v. Kin- 157 ; Mair v. Himalaya Tea Co., L. R. 1 
 ney Tobacco Co., 12 Fed. R. 782. Eq. 411. 

 
 § 222.] INJUNCTIONS AUTHORIZED BY STATUTE. 319 
 
 cannot be ascertained. 3 In some cases an injunction may be ob- 
 tained to restrain a defendant from violating a negative promise 
 contained in a contract, although the court has no power spe- 
 cifically to enforce the affirmative promises contained therein. 
 Thus, when opera singers had contracted to sing at the plaintiffs' 
 theatre and nowhere else, injunctions have been granted to re- 
 strain them from singing in rival establishments, although they 
 could not be compelled to sing for the plaintiffs. 4 The rule has 
 been thus stated by Judge Lowell : " I think the fair result of 
 the later cases may be thus expressed : If the case is one in 
 which the negative remedy of injunction will do substantial jus- 
 tice between the parties, by obliging the defendant either to 
 carry out his contract or lose all benefit of the breach, and 
 the remedy at law is inadequate, and there is no reason of 
 policy against it, the court will interfere to restrain conduct 
 which is contrary to the contract, although it may be unable to 
 enforce a specific performance of it." 5 But where the affirmative 
 promise cannot be specifically enforced, the court will not import 
 into it a negative covenant, neither expressly nor by a fair im- 
 plication contained therein. 6 
 
 § 221. Injunctions to compel the Delivery of Personal Property 
 tortiously withheld. — Under very extraordinary circumstances, 
 equity will interfere to compel by injunction the delivery or 
 return of letters, documents, or other articles of such a unique 
 character that it would be impossible to replace them, when they 
 are tortiously withheld from their rightful owners. 1 
 
 § 222. Injunctions authorized by Statute. — The statutes of the 
 United States also authorize an injunction in the following cases, 
 besides those arising from infringements of patents and copy- 
 rights: "Any person who considers himself aggrieved by any 
 warrant of distress issued under the " provisions of the statutes 
 
 s Adderley w. Dixon, 1 Sim. & Stu. 6 Clarke v. Price, 2 Wilson Ch. C. 157 ; 
 
 607 ; Sullivan v. Tuck, 1 Md. Ch. 50 ; Fin- Pickering v. Bishop of Ely, 2 Y. & C. 
 
 ley v. Aiken, 1 Grant's Cases (Pa.) 83; Ch. C. 249; Johnson v. Shrewsbury & 
 
 Bispham's Eq. § 3G9. Birmingham Ry. Co., 3 De G-, M. &. G. 
 
 * Lumley v. Wagner, 1 De G., M. & G. 914 ; Bispham's Eq. § 464 ; Kerr on In- 
 
 604 ; McCaull v. Braham, 16 Fed. R. 37. junctions, 524. 
 
 6 Singer Co. v. Union Co., 1 Holmes, § 221. 1 Pusey v. Pusey, 1 Vern.273; 
 
 253, 258. See also Goddard v. Wilde, 17 Duke of Somerset v. Cookson, 3 P. Wms. 
 
 Fed. R. 845; W. U. Tel. Co. v. Union 3S9 ; Clarke v. White, 12 Pet. 178 ; Prince 
 
 Pacific Ry. Co., 3 Fed. R. 423 ; W. U. Tel. Albert v. Strange, 1 Macn. & G. 25, 42 ; 
 
 Co. v. St. Joseph & W. Ry. Co., 3 Fed. R. McGowin v. Remington, 12 Pa. St. 56. 
 4o0.
 
 320 INJUNCTIONS. [CHAP. XVI. 
 
 authorizing one to be issued by the Solicitor of the Treasury 
 against an officer in default for not accounting for and paying 
 over public money received by him, " may prefer a bill of com- 
 plaint to any district judge of the United States, setting forth 
 therein the nature and extent of the injury of which he com- 
 plains ; and thereupon the judge may grant an injunction to stay 
 proceedings on such warrant altogether, or for so much thereof 
 as the nature of the case requires. But no injunction shall issue 
 till the party applying for it gives bond with sufficient security, 
 in a sum to be prescribed by the judge, for the performance of 
 such judgment as may be awarded against him ; nor shall the 
 issuing of such injunction in any manner impair the lien pro- 
 duced by the issuing of the warrant. And the same proceedings 
 shall be had in such injunction as in other cases, except that no 
 answer shall be necessary on the part of the United States ; and 
 if, upon dissolving the injunction, it appears to the satisfaction 
 of the judge that the application for the injunction was merely 
 for delay, the judge may add to the lawful interest assessed on 
 all sums found due against the complainant such damages as, 
 with such lawful interest, shall not exceed the rate of ten per 
 centum a year. Such injunction may.be granted or dissolved 
 by the district judge either in or out of court." J " When the 
 district judge refuses to grant an injunction to stay proceedings 
 on a distress warrant, as aforesaid, or dissolves such injunction 
 after it is granted, any person who considers himself aggrieved 
 by the decision in the premises may lay before the circuit justice, 
 or circuit judge of the circuit within which such district lies, 
 a copy of the proceeding had before the district judge ; and 
 thereupon the circuit justice or circuit judge may grant an 
 injunction, or permit an appeal, as the case may be, if, in his 
 opinion, the equity of the case requires it. The same proceed- 
 ings, subject to the same conditions, shall be had upon such 
 injunction in the circuit court as are prescribed in the district 
 court." 2 "Whenever an association against which proceedings 
 have been instituted, on account of any alleged refusal to redeem 
 its circulating notes as aforesaid, denies having failed to do so, it 
 may, at any time within ten days after it has been notified of the 
 appointment of an agent, as provided in section fifty-two hun- 
 dred and twenty-seven " of the Revised Statutes of the United 
 § 222. i U. S. R. S. § 3636. 2 U. S. R. S. § 3637.
 
 § 223.] WHEN INJUNCTIONS WILL NOT ISSUE. 321 
 
 States, "apply to the nearest circuit, or district, or territorial 
 court of the United States to enjoin further proceedings in the 
 premises ; and such court, after citing the Comptroller of the 
 Currency to show cause why further proceedings should not be 
 enjoined, and after the decision of the court or finding of a 
 jury that such association has not refused to redeem its circulat- 
 ing notes, when legally presented, in the lawful money of the 
 United States, shall make an order enjoining the Comptroller, 
 and any receiver acting under his direction, from all further 
 proceedings on account of such alleged refusal." 3 Compliance 
 with the Inter-State Commerce Act may also in certain cases be 
 compelled by an injunction. 4 
 
 § 223. When Injunctions will not Issue. — As a general rule, it 
 may be stated that an injunction will not issue at the prayer oc 
 one who will suffer no pecuniary injury from the act which he 
 wishes to prevent. 1 Thus, one will not be granted at the suit 
 of a State to prevent the invasion of a purely political right. 2 or 
 of adjacent property owners and church members to prevent a 
 railroad from outraging their religious feelings by running cars 
 upon Sunday; 3 nor at the suit of minister of the gospel to pre- 
 vent the use of his building for theatrical purposes, under a lease 
 the validity of which he disputes. 4 The Emperor of Austria and 
 King of Hungary, however, was allowed an injunction to prevent 
 Kossuth and his associates from manufacturing in England paper 
 currency not purporting to be issued by imperial authority, 
 intended for circulation in Hungary, upon the ground that his 
 property rights were thereby injured. 5 An injunction will not 
 issue to prevent an injury which is not actually threatened to the 
 complainant. 6 Thus, an injunction will not be granted to pre- 
 vent an injury to a navigable stream, at the suit of an individual 
 who is not engaged in navigating the same ; 7 nor, at the suit of a 
 coupon holder who is not liable to the payment of taxes to 
 a State, to prevent the State officers from refusing to receive his 
 coupons, when tendered by others to whom he has agreed to 
 
 8 U. S. R. S. § 5237. 628 ; s. c. on appeal, 3 De G., F. & J. 
 
 4 24 St. at L. 380 ; 25 St. at L. 855. 217. 
 
 § 223. l High on Injunctions, § 20. ° Slessingcr v. Buckingham, 17 Fed. 
 
 2 Georgia v. Stanton, 6 Wall. 50. R. 454. 
 
 8 Sparhawk v. Union P. R. R. Co., 54 7 Spooner v. McConnell, 1 McLean, 
 
 Pa. St. 401. 337. See also Mason v. Kollins, 2 Hiss. 
 
 4 Bodwoll v. Crawford, 26 Kan. 292. 99. Compare Works v. Junction R. R., 
 
 6 Emperor of Austria v. Day, 2 Giff. 5 McLean, 425. 
 
 21
 
 322 INJUNCTIONS. [CHAP. XVI. 
 
 assign them for the payment of their taxes, in pursuance of a con- 
 tract made by the State with its creditors and their successors. 8 
 " No court sits to determine questions of law in thesi" 9 A threat 
 of irreparable injury to a right actually enjoyed and exercised by 
 the complainant, or acts indicating a preparation to commit such 
 a wrong, are, however, always a ground for the issue of an injunc- 
 tion. 10 And after a defendant has once infringed a patent owned 
 by the plaintiff, it seems that the court will always enjoin him 
 from doing so in the future, even though he swears that he has 
 no intention of doing so again; unless in addition to so swearing 
 he shows that he has paid all damages occasioned by his infringe- 
 ment, and has desisted from it. 11 An injunction cannot be issued 
 against the United States ; 12 nor against an officer to interfere 
 with the exercise of his discretion ; 13 nor, it has been suggested, 
 against an officer of the United States to prevent the infringe- 
 ment of a patent by him while in the exercise of his official 
 duties. 14 The Revised Statutes provide that " No suit for the 
 purpose of restraining the assessment or collection of any 
 tax " imposed by the United States for purposes of internal 
 revenue, "shall be maintained in any court." 15 Under this 
 provision, it has been held that wherever a tax is imposed by a 
 person in office having authority over the assessment of taxes for 
 the United States, and acting under color of a statute, no injunc- 
 tion will be issued to restrain its collection, no matter how 
 erroneous the assessment may be, and although the person 
 against whom the assessment is made does not own the property 
 taxed. 16 "It is sufficient that a statute has authorized the asses- 
 
 8 Virginia Coupon Case«, Marye v. 12 United States v. McLemore, 4 How. 
 Parsons, 114 U. S. 325. 286; Hill v. United States, 9 How. 386. 
 
 9 Mr. Justice Matthews in Virginia 13 Mississippi v. Johnson, 4 Wall. 475 ; 
 Coupon Cases, Marye v. Parsons, 114 Walker v. Smith, 21 How. 579; McElrath 
 U. S. 325, 330. v. Mcintosh, 1 Law Repr. (n. s.) 399. 
 
 io St. Louis v. Knapp Co., 104 U. S. " James v. Campbell, 104 U. S. 356 ; 
 
 658; Sherman v. Nutt, 35 Fed. R. 149; Hollister v. Benedict & B.Manuf. Co., 113 
 
 Butz Thermo-Electric Regulator Co v. U. S. 59, 67. 
 
 Jacobs Electric Co., 36 Fed. R. 191 ; Mc- « U. S. R. S. § 3224. 
 
 Arthur v. Kelly, 5 Ohio, 139; Frearson 18 Kensett v. Stivers, 10 Fed. R. 517; 
 
 t>. Loe, L. R. Ch. D. 48. See also Piek v. Pullan v. Kinsinger, 2 Abb. U. S. 94; 
 
 Chicago & N. W. Ry. Co., 6 Biss. 177. Howland v. Soule, Deady, 413 ; Delaware 
 
 n Jenkins v. Greenwald, 1 Bond, 126 ; R. Co. v. Prettyman, 17 Int. Rev. Rec. 99; 
 
 R.c. 2 Fislier, 37; Sickels v. Mitchell, 3 Alkan v. Bean, 23 Int. Rev. Rec. 351 ; Kis- 
 
 Blatchf. 548 ; Poppenhusen v. New York singer v. Bean, 7 Biss. 60 ; United States v. 
 
 Gutta Percha Comb Co., 4 Blatchf. 184 ; Black, 11 Blatchf. 538. But see Frayser 
 
 Celluloid Manuf. Co. v. Arlington Manuf. v. Russell, 3 Hughes, 227. 
 Co., 34 Fed. R. 324.
 
 § 223.] WHEN INJUNCTIONS WILL NOT ISSUE. 323 
 
 sor to entertain the general subject of taxation ; that it was in 
 fact entertained, and a judgment, lawful or unlawful, was ren- 
 dered concerning it." 17 It seems that the unconstitutionality of 
 the statute imposing the tax will not authorize the issue of an 
 injunction. 18 An injunction cannot be issued against a State at 
 the suit of a citizen of another State or of a foreign State. 19 Nor 
 can a mandatory injunction be issued against an officer of a State 
 so as to compel the action of the State against its expressed will. 20 
 But an officer of a State may be enjoined from an invasion of 
 private rights which would cause irreparable injury, when about 
 to act under an unconstitutional act of the legislature of the 
 State. 21 As has been said_before, an injunction will not ordinarily 
 be granted to stay proceedings in a State court. 22 In England, 
 a person may be restrained from petitioning or applying to the 
 legislature in order to procure the passage of an act relating 
 solely to private interests, provided he be under an express or 
 implied agreement not to do so, or his doing so would amount 
 to a breach of trust. 23 This doctrine has, however, never been 
 upheld in the United States, and in a well-considered case in 
 New Jersey was expressly repudiated. 24 The early English cases 
 held that an injunction would not issue to restrain the publica- 
 tion of a slander or libel, no matter how injurious it might be to 
 the complainant. 25 Since the passage of the Judicature Act, 
 however, such injunctions have been granted there in order to pro- 
 tect rights of property. 23 An injunction was denied when sought 
 to prevent a defendant from advertising that a patent was void, 
 and it appeared that he honestly believed it to be so, and pub- 
 lished the statement for the sole purpose of protecting what he 
 
 " Emmons, J., in Pullan v. Kinsinger, " U. S. R. S. § 720 ; supra, § 211. 
 
 2 Abb. U. S. 94, 99. 23 Ware v. The Grand Junction Water 
 
 i 8 Robbins ». Freeland, 14 Int. Rev. Rec. Works Co. , 2 Russ. & M. 470 ; The Stoek- 
 
 28. ton & H. Ry. Co. v. The Leeds & Th. Ry. 
 
 19 Eleventh Amendment of the Con- Co., 2 Phil. 666. 
 
 Btitution. 24 Story v. The Jersey City & Bergen 
 
 20 Louisiana v. Jumel, 107 U. S. 711; Point Plank Road Co., 1 C. E. Green (16 
 Antoni v. Greenhow, 107 U. S. 769, 782- N. J. Eq.) IB. 
 
 784 ; Cunningham v. Macon & Bruns- 25 Prudential Assur. Co. v. Knott, L. R. 
 
 wick R. R. Co., 109 U. S. 446. 10 Ch. 142; Clark v. Freeman, 11 Beav. 
 
 21 Osborn v. Bank of the United States, 112. See also Brandreth v. Lance, 8 
 9 Wheat. 738; Davis v. Gray, 16 Wall. Paige (N. Y.) 24. 
 
 203 ; Board of Liquidation v. MeComb, 92 2G Thorley's Cattle Food Co. v. Massam, 
 
 U. S. 531; Virginia Coupon Cases, 114 L. R. 6 Ch. D. 582 ; Saxby v. Easterbrook, 
 
 U. S. 26C. See, however, In re Ayers, L. R. 3 C P. D. 339 ; Wren j;. Weild, 
 
 123 U. S. 443. L. R, 4 Q. B. 730.
 
 324 INJUNCTIONS. [CHAP. XVI. 
 
 believed to be his rights. 27 Whether a Federal court will in any 
 case grant an injunction against the publication of a libel is a 
 disputed question. 28 An injunction will not issue to assist in the 
 maintenance of a monopoly injurious to public policy j 29 nor in 
 any other case when its operation would be repugnant to public 
 policy. 30 An injunction will not be issued when the moving 
 party has a plain, adequate, and complete remedy at law. 31 
 
 § 224. Distinction between the Judicial Writ and the Writ 
 Remedial. — Injunctions were formerly either judicial writs or 
 writs remedial. A judicial writ was a direction to yield up, to 
 quiet, or to continue the possession of lands, and is said to be in 
 the nature of a writ of execution. 1 It was issued in aid of, and 
 only after a final decree in equity; and, in extraordinary circum- 
 stances, in aid of a judgment at law. 2 Under the equity rules, 
 however, it is never necessaiy ; and it had previously fallen into 
 disuse in England. All other injunctions are writs remedial. 
 
 § 225. Distinction between Mandatory and Prohibitory Injunc- 
 tions. — Injunctions are either mandatory or prohibitory. A 
 mandatory injunction is one that commands a defendant to 
 perform a certain act or acts ; a prohibitory injunction, one 
 that forbids a defendant's doing a certain act or acts. Man- 
 datory are far less common than are prohibitory injunctions. 
 Those most frequently issued have been such as commanded a 
 defendant to abate a nuisance, 1 or to deliver the possession 
 of land. 2 They have also been granted to compel the return 
 
 27 Halsey v. Brotherhood, 45 L. T. n. s. 35 Bryant v. W. U. Tel. Co., 17 Fed R. 
 640; Celluloid Manuf. Co. v. Goodyear 825; Blake v. Greenwood Cemetery, 14 
 Dental Vulcanite Co., 13 Blatchf. 375 ; Blatchf. 342 ; Denehey v. Harrisburg, 2 
 Pentlarge v. Pentlarge, 14 Repr. 579. Pearson (Pa.), 330, 334. 
 
 28 Held that it may, in Emack v Kane, 31 U. S. R. S. § 723. 
 
 34 Fed. R. 46, U. S. C. C, N. D. Illinois, §224. * Eden on Injunctions, chs.i. and 
 
 by Blodgett, J. Cf. Palmer v. Travers, xvii. pp. 1-2, 261-262 ; Beames' Orders, 
 
 20 Fed. R. 501, U. S. C. C, S. D. N. Y., by 8, 16. 
 
 Wheeler, J.; Celluloid Manuf. Co. v. Good- 2 Boult v. Blunt, Cary, 72 ; Eden on 
 
 year D. V. Co., 13 Blatchf. 375, U. S. Injunctions, 262. 
 
 C. C, S. D. N. Y. by Hunt, J. Held § 225. » Lane v. Newdigate, 10 Ves. 
 
 that it cannot, in Kidd v. Horry, 28 Fed. 192; Robinson v. Lord Byron, 1 Bro. C. C. 
 
 R. 773, U. S. C. C.,E. D. Pa., by Bradley 588; Heney v. Smith, 1 K. & J. 389; 
 
 and McKennan, JJ. ; Baltimore Car- Rankin v. Huskisson, 4 Simons, 13 ; Bick- 
 
 Wheel Co. v. Bemis, 29 Fed R. 95. U. S. ett v. Morris, L. R. 1 H. L. Sc. 47 ; Cole 
 
 C. C, D. Mass., by Colt and Carpenter, JJ. Silver Mining Co. v. Virginia & G. H. 
 
 » Pullman Palace Car Co. v. Texas & Water Co., 1 Saw. 470. 
 
 Pacific Ry. Co., 11 Fed. R. 625; s. c. 4 2 Hepburn v. Auld, 5 Cranch, 262; 
 
 Woods 317; Foil's Appeal, 91 Pa. St. Hepburn v. Dunlop, 1 Wheat. 179 ; Find- 
 
 434, 4:J8. lay v. Hinde, 1 Pet. 241.
 
 § 226.] PROVISIONAL AND PERPETUAL INJUNCTIONS. 325 
 
 of letters and other documents, 3 the delivery of personal pro- 
 perty whose loss could not be compensated in damages, 4 the 
 giving of collateral security in obedience to a contract, 5 the 
 making of a policy of insurance, 6 the stopping and receiving 
 freight by a railroad company at a particular place, 7 and the per- 
 formance of a contract by one railroad company to send freight 
 over the lines of another railroad. 8 The court, in a case 
 involving the constitutionality of certain Kentucky statutes, 
 refused a mandatory injunction compelling a distribution of 
 the money raised by a tax upon white people partly among 
 public schools for colored children, in the absence of any 
 contract right or legislative authority for such a distribution ; 
 but it granted " a decree enjoining and restraining the proper 
 parties from applying to the use of the schools organized for 
 and at which white children only are allowed to attend one- 
 fourth of the money heretofore, or which may be hereafter, 
 collected under the authority of the act of 1871 and its amend- 
 ments." 9 Mandatory injunctions are usually issued in a neg- 
 ative form, restraining a defendant from desisting or refusing 
 to do an act. 10 They are very rarely granted upon an inter- 
 locutory motion. 11 
 
 § 226. Distinction between Provisional and Perpetual Injunc- 
 tions. — Provisional, also called preliminary or interlocutory, 
 injunctions are such as are to continue until a certain time 
 
 3 Evitt v. Price, 1 Simons, 483 ; Seton 504; Cole Silver Mining Co. v. Virginia 
 
 on Decrees (4th ed.), 179. See also & G. H. Water Co., 1 Saw. 470. 
 Clarke v. White, 12 Pet. 178. u Denver & N. O. R. Co. v. Atchison, 
 
 * Pusey v. Pusey, 1 Vern. 273 ; Duke T. & S. F. R. Co., 13 Fed. R. 646 ; Mc- 
 
 of Somerset v. Cookson, 3 P. Wms. 389 ; Cauley v. Kellogg, 2 Woods, 13 ; Camblos 
 
 Greatrex v. Greatrex, 1 De G. & Sm. 692 ; v. The Philadelphia & R. R. R. Co., 9 
 
 McGowin v. Remington, 12 Pa. St. 56. Phila. (Pa.) 411 ; s. c. 4 Brewster (Pa.), 
 
 5 Robinson v. Cathcart, 2 Cranch C. C. 563; Rogers Locomotive Works v. Erie 
 590. Ry. Co., 5 C. E. Green (20 N. J. Eq.) ( 379. 
 
 6 Union Mutual Ins. Co. v. Commercial But see Dinsmore v. Louisville, C. & L. 
 Mut. Marine Ins. Co., 2 Curt. 524. Ry. Co., 2 Fed. R. 465 ; Dinsmore v. 
 
 7 Coe v. Louisville & Nashville R. R. Louisville, N. A. & C. R. R. Co., 3 Fed. 
 Co., 3 Fed. R. 775 ; McCoy v. Cincinnati, R. 593 ; Coe v. Louisville & Nashville 
 I., St. L. & C. R.Co., 13 Fed. R. 3. R. R. Co., 3 Fed. R. 775; Ormsby v. 
 
 8 Chicago & A. Ry. Co. v. N. Y., L. E. Union Pacific R. R. Co., 4 Fed. R. 706 ; 
 & W. R. Co., 34 Fed. R. 516. Texas Express Co. v. Texas & Pacific 
 
 9 Barr, J. in Claybrook v. City of Ry. Co., 6 Fed. R. 426 ; Chicago & A. 
 Owensboro, 23 Fed. R. 634, 636. Ry. Co. v. N. Y., L. E. & W. R. Co., 34 
 
 10 Southern Express Co. v. St. Louis, Fed. R. 516; C. S. M. Co. v. V. & G. H. 
 Iron M., i Southern Ry. Co., 10 Fed. R. W. Co., 1 Saw. 685. 
 210, 869 ; Smith v. Smith, L. R. 20 Eq. 500,
 
 326 INJUNCTIONS. [CHAP. XVI. 
 
 usually specified therein ; for example, until the coming in of 
 the defendant's answer, the hearing of the cause, the master's 
 report, or the further order of the court. 1 Perpetual, also called 
 final, injunctions are those which, as their name denotes, perpetu- 
 ally restrain the defendant from the same act or acts. Provi- 
 sional injunctions may be granted at any time during the 
 progress of a suit. Perpetual injunctions can never be granted 
 except at the time of the entry of the decree. 2 The setting up 
 of outstanding terms can, it has been said, only be restrained by 
 a perpetual injunction. 3 Mandatory injunctions also will very 
 rarely be granted before a decree. 4 " It is a rule of practice in 
 the circuit courts of the United States not to allow an injunction 
 to stay an ejectment suit until it can be investigated in equity, 
 unless a judgment be entered therein." 5 
 
 § 227. Distinction between Common and Special Injunctions. — 
 Injunctions were formerly of two kinds, common and special. 
 Common injunctions were those which were granted, as of 
 course, upon the defendant's default either in appearing or 
 answering, and were only applicable to restrain proceedings at 
 common law. 1 Special injunctions were those which were 
 granted, not as a matter of course, but upon the special circum- 
 stances of the case as disclosed hy the answer of the defendant 
 or upon affidavits. 2 Common injunctions, although recognized 
 by the equity rules, 3 have, it has been held, been abolished by 
 the Revised Statutes. 4 The learning upon the subject, which is 
 very technical, seems now, therefore, useless, and will not be 
 repeated here. 5 
 
 § 223. Time and Place of Applications for Interlocutory Injunc- 
 tions. — An injunction may be obtained, at any time, as well in 
 
 § 226. 1 Daniell's Ch. Pr. (2d Am. ed.) 465 ; Coe v. Louisville & Nashville R. R. 
 1810 ; Eden on Injunctions, ch. xv. Co., 3 Fed. R. 775, and other cases cited 
 
 2 Daniell's Ch. Pr. (2d Am. ed.) 1903; under § 225. 
 
 Adams v. Crittenden, 17 Federal Reporter, 5 Billings, J., in Heirs of Szy wauski v. 
 
 42. Zunts, 20 Fed. R. 361, 363 ; citing Turner 
 
 3 Hylton v. Morgan, 6 Ves. 293 ; Byrne v. American Bapt. Missionary Union, 5 
 v. Byrne, 2 Sch. & Lef. 537 ; Barney v. McLean, 344. 
 
 Luckett, 1 Sim. & S. 419; Northey v. §227. 1 Daniell's Ch. Pr. (2d Am. ed.) 
 
 Pearce, 1 Sim. & S. 420. 1877. 
 
 * Camblos v. The Philadelphia & R. 3 Daniell's Ch. Pr. (2d Am. ed.) 1833. 
 
 R. R, Co., 9 Phila. (Pa.) 411; s. c. 4 ' Rule 55. 
 
 Brewster (Pa.), 563; Rogers Locomotive 4 Perry v. Parker, 1 W. & M. 280; 
 
 & Maciiine Works v. Erie Ry. Co., 5 C. Lawrence i>. Bowman, 1 McAll. 419. 
 
 E. Green (N.J.) 379. But see Dinsmore 5 See Daniell's Ch. Pr. (2d Am. ed ) 
 
 v. Louisville, C. & L. Ry. Co., 2 Fed. R. 1811-1833. 

 
 § 229.] INJUNCTIONS NOT PRAYED FOR IN THE BILL. 327 
 
 vacation as in term, and whether the court be sitting or not, at 
 any place within which the judge granting it has jurisdiction; 
 and at almost any stage of the cause. 1 In England it has been 
 held, that, in a very extraordinary case, an injunction may be 
 granted upon petition before the filing of a bill or the service of a 
 subpoena; 2 and in the courts of the United States an injunction 
 has been issued upon the filing of the bill and before service of 
 the subpoena. 3 An injunction will not usually be granted while 
 a demurrer or plea to the bill is pending. 4 But in cases of emer- 
 gency, the court may order the sufficiency of such a pleading to 
 be argued before the regular time for such a proceeding, together 
 with the motion for the injunction; 5 or even grant a stay-order 
 without waiting for the argument. 6 Should a motion be heard 
 while a demurrer is on the file and undisposed of, it seems that 
 upon the hearing of the motion the allegations in the bill will be 
 considered as admitted. 7 An application for an injunction has 
 been refused because the bill had been referred for scandal. 8 
 
 § 229. Injunctions not prayed for in the Bill. — The English rule 
 was that an injunction would not issue against a person not made 
 a party to a bill specifically praying an injunction against him. 1 
 And the injunction had to be prayed for not only in the prayer 
 for relief but also in the prayer for process. 2 To this, however, 
 there were four exceptional classes of cases. If the court had 
 by its decree taken the distribution or control of property into 
 its own hands it would prevent injury thereto either by the par- 
 ties litigant or others, although no injunction had been prayed 
 by the bill. 3 Thus, in a foreclosure suit it would restrain waste 
 by the mortgagor after a decree for an account ; 4 and after a decree 
 for the administration of the assets of a dead man, it would enjoin 
 a creditor not a party to the suit from proceeding at law against 
 
 § 228. 1 Daniell's Ch. Pr. (5th Am ed.) 6 Wardle v. Claxton, 9 Simons, 412; 
 
 1663 ; Kerr on Injunctions, 543-545 ; Maltby v. Bobo, 14 Blatchf. 53 ; Fremont 
 
 Bacon v. Jones, 4 Myl. & Cr. 433. v. Merced Mining Co., 1 McAll. 267. 
 
 2 Mayor of London v. Bolt, 5 Ves. 129. 7 Bayerque v. Cohen, Mc All. 1 1 3. 
 
 . 8 Scliermerhorn v. L'Espenasse, 2 8 Davenport v. Davenport, 6 Madd. 
 
 Dall. 369. 251. 
 
 4 Cousins v. Smith, 13 Ves. 164 ; § 229. » Daniell's Ch. Ft. (5th Am. 
 Ketchum v. Driggs, 6 McLean, 13 ; ed.) 1614-1617. 
 
 Anon., 2 Atk. 113; Daniell's Ch. Pr. - Wood v. Beadell, 3 Simons, 273. 
 
 (5th Am. ed.) 1671. 3 Daniell's Ch. Pr. (5th American ed.) 
 
 5 Anon. v. Bridgewater Canal Co., 9 1614. 
 
 Simons, 378; Daniell's Ch. Pr. (5th Am. 4 Wright v. Atkyns, 1 V. & B. 313. 
 
 ed.) 1671.
 
 328 INJUNCTIONS. [chap, xvl 
 
 the testator's or intestate's estate to satisfy his individual claim, 
 provided that the executor made an affidavit stating what assets 
 he had in his hands, or had previously admitted their amount. 5 If 
 the suit were brought by a legatee, such a statement or admis- 
 sion was not indispensable. 6 Secondly, an injunction was granted 
 without a bill being filed for the express purpose of preventing a 
 plaintiff from suing both at law and in equity at the same time 
 and for the same matter, and to compel him to make an election. 7 
 Thirdly, an injunction could alwaj's be obtained to compel re- 
 spect and enforce obedience to the decrees and orders of the 
 court. Thus, publications which were disrespectful to the court, 
 or which unfairly reported its proceedings could be enjoined. 8 So, 
 too, an injunction could issue to restrain an action at law to re- 
 cover damages for false imprisonment under process of contempt 
 improperly issued; 9 to compel compliance with the terms and 
 spirit of a decree by one who had bought land under it ; 10 to 
 compel compliance with his lease by the tenant of a receiver ; n 
 and to prevent an unauthorized action against a receiver. 12 And, 
 fourthly, there seems to be a class of cases not clearly defined in 
 which the court granted an injunction, when without it "the whole 
 object of the proceedings would be defeated," although it was 
 not prayed for in the bill. 13 
 
 § 230. Special Practice of the Federal Courts in the Issue of In- 
 junctions. — The following regulations control the practice in 
 issuing injunctions in the Federal courts. " The prayer of the 
 bill shall ask the special relief to which the plaintiff supposes 
 himself entitled, and also shall contain a prayer for general re- 
 lief; and if an injunction, or a writ of ne exeat regno, or any 
 other special order, pending the suit, is required, it shall also be 
 specially asked for." l " Whenever an injunction is asked for by 
 the bill to stay proceedings at law, if the defendant do not enter 
 
 5 Daniell's Ch. Pr. (5th Am. ed.) 1617 ; 9 Frowd v. Lawrence, 1 J. & W. 655 ; 
 Paxton v. Douglas, 8 Ves. 520 ; Thomp- Ex parte Clarke, 1 R. & M. 563; Daniell's 
 son v. Brown, 4 J. Ch. (N. Y.) 619. Ch. Pr. 511. 
 
 6 Ratcliffe v. Winch, 16 Beav. 576 ; 10 Casamajor v. Strode, 1 Sim. & Stu. 
 Daniell's Ch. Pr. (5th Am. ed.) 1617. 381 ; Kerr on Injunctions, 543. 
 
 7 Rogers v. Vosburgh, 4 J. Ch. (N.Y.) " Walton v. Johnson, 15 Simons, 352. 
 84. n Angel v. Smith, 9 Ves. 335. 
 
 8 Anon., 2 Ves. Sen. 520 ; Brook v. 13 Blomfield v. Eyre, 8 Beav. 250. See 
 Evans, 29 L. J. Ch. 616 ; Coleman v. West Shain wald v. Lewis, 6 Fed. R. 766. 
 Hartlepool Ry. Co., 8 W. R. 734 ; Mack- § 230. » Rule 21. But see Shainwald 
 ett v. Commissioners of Heme Bay, 24 v. Lewis, 6 Fed. R. 766. 
 
 W. R. 845. But see U. S. R. S. § 725. 

 
 § 230.] FEDERAL PRACTICE AS TO INJUNCTIONS. 329 
 
 his appearance, and plead, demur, or answer to the same within 
 the time prescribed therefor by these rules, the plaintiff shall be 
 entitled as of course, upon motion, without notice to such in- 
 junction. 2 But special injunctions shall be grantable only upon 
 due notice to the other party by the court in term, or by a judge 
 thereof in vacation, after a hearing, which may be ex parte if the 
 adverse party does not appear at the time and place ordered. 
 In every case where an injunction — either the common injunc- 
 tion or a special injunction — is awarded in vacation, it shall, 
 unless previously dissolved by the judge granting the same con- 
 tinue until the next term of the court, or until it is dissolved by 
 some other order of the court." 3 " Whenever notice is given of 
 a motion for an injunction out of a circuit or district court the 
 court or judge thereof may, if there appears to be danger of ir- 
 reparable injury from delay, grant an order restraining the act 
 sought to be enjoined until the decision upon the motion ; and 
 such order may be granted with or without security, in the dis- 
 cretion of the court or judge." 4 " Writs of injunction may be 
 granted by any justice of the Supreme Court in cases where they 
 might be granted by the Supreme Court ; and by any judge of a 
 circuit court in cases where they might be granted by such court. 
 But no justice of the Supreme Court shall hear or allow any ap- 
 plication for an injunction or restraining order in any cause pend- 
 ing in the circuit to which he is allotted, elsewhere than within 
 such circuit, or at such place outside of the same as the parties 
 may stipulate in writing, except when it cannot be heard by the 
 circuit judge of the circuit or the district judge of the district. 
 And an injunction shall not be issued by a district judge, as one 
 of the judges of a circuit court," except when holding such court, 6 
 "in any case where a party has had a reasonable time to apply to 
 the circuit court for the writ; nor shall any injunction so 
 issued by a district judge continue longer than to the circuit 
 court next ensuing, unless so ordered by the circuit court." 6 
 It has been held under the foregoing statutory provision that ab- 
 sence or illness of the circuit and district judges is such a disability 
 as authorizes the circuit justice to hear and grant the application 
 
 2 Perry v. Parker, 1 W. & M. 280. 6 Goodyear Dental Vulcanite Co. v. 
 
 s Rule 55. Folsom, 3 Fed. R. 509. 
 
 4 U. S. R. S. § 718. See Yuenglingr. 6 U. S. R. S. § 719. See Dudley's 
 
 Johnson, 1 Hughes, 607. Case, 1 Penn. L. J. 302
 
 330 INJUNCTIONS. [CHAP. XVI. 
 
 at a place outside of the circuit ; 7 and that, if the circuit justice 
 as well as the circuit and district judges be absent from the cir- 
 cuit, the application may be heard and the writ granted by any 
 justice of the Supreme Court in any part of the United States 8 
 A denial by the Circuit Court of an application to dissolve an 
 injunction granted by a district judge may be treated as an order 
 for its continuance. 9 But if no order continuing it is made, such 
 an injunction is dissolved without an order. 10 
 
 § 231. Notice of Application for Interlocutory Injunction. — As 
 a general rule, notice of an application for an injunction must 
 always be given to the person against whom the injunction is de- 
 sired; but in very pressing cases where the mischief sought to 
 be prevented was serious, imminent, and irremediable, or where 
 the mere act of giving notice to the defendant of the intention to 
 make the application might have been of itself productive of the 
 mischief apprehended, by inducing him to accelerate the act in 
 order that it might be complete before the time for making the 
 application should have arrived, the courts have always awarded 
 injunctions without notice. 1 On an application for an injunction 
 without notice, the plaintiff should state in his affidavit the time 
 when he first learned of the threatened mischief, 2 if the injunc- 
 tion desired be to restrain the infringement of a patent that he 
 believes that the person to whom the patent was issued was the 
 original inventor thereof, or that the thing or process patented 
 was new or had not been introduced into public use in the 
 United States for more than two years prior to the application 
 upon which the patent was issued, 3 and every material circum- 
 stance connected with the case, whether the same bears for or 
 against his application. 4 If his affidavit be defective in any of 
 these particulars, according to the English practice, an injunc- 
 tion would not be issued, or if issued, the order for it would be 
 
 7 Searles v. Jacksonville, P. & M. R. v. Fairhaven, 8 Gushing (Mass.), 363; 
 R. Co., 2 Woods, 621. Schermerhorn v. L'Espenasse, 2 Dall. 
 
 8 United States v. Louisville & P. 360; Yuengling v. Johnson, 1 Hughes, 
 Canal Co., 4 Dill. 000. 607. 
 
 9 Parker v. Judges of Circuit Court, 2 Calvert v. Gray, 2 Cooper's Ch. R. 
 12 Wheat. 561. See Gray v. Chicago, I. 171 n. 
 
 & N. R. R. Co., 1 Woolw. 63. 3 Hill v. Thompson, 3 Meriv. 622 ; 
 
 10 Parker v. The Judges of Circuit Sturz v. De La Rue, 5 Russ. 322, 329 ; 
 
 Court, 12 Wheat. 561 ; Gray v. Chicago, Sullivan v. Redfield, 1 Paine, 441. See 
 
 I. & N. R. R. Co., 1 Woolw. 63. also U. S. R. S. §§ 4886, 4887. 
 
 § 231. l Daniell's Ch. Pr. (5th Am ed.) 4 Dalglish v. Jar vie, 2 Mac. & G. 231. 
 
 1664; Kerr on Injunctions, 545; Wing
 
 § 232.] AFFIDAVITS UPON AN APPLICATION FOE INJUNCTION. 331 
 
 discharged. 5 " The application for a special injunction is very 
 much governed upon the same principles which govern insur- 
 ances, matters which are said to require the utmost degree of 
 good faith, 'uberrima fides.'' In cases of insurance a party is re- 
 quired not only to state all matters within his knowledge, which 
 he believes to be material to the question of the insurance, but 
 all which in point of fact are so. If he conceals anything that 
 he knows to be material, it is a fraud ; but besides that, if 
 he conceals anything that may influence the rate of premium 
 which the underwriter may require, although he does not know 
 that it would have that effect, such concealment entirely vitiates 
 the policy. So here, if the party applying for a special injunc- 
 tion, abstains from stating facts which the Court thinks are most 
 material to enable it to form its judgment, he disentitles himself 
 to that relief which he asks the court to grant." 6 In the ab- 
 sence of any local rule upon the subject, the practice in giving 
 notice of an application for an injunction, and of proceeding at 
 the time when the application is made, are the same when an 
 injunction is asked for as upon any other interlocutory appli- 
 cation. It has been said, that an application for an interlocutory 
 special injunction, during term and after the beginning of a suit 
 and before answer, can only be made by motion ; but that in va- 
 cation a judge may grant such an application upon petition. 7 The 
 usual practice is, however, to apply by motion. It has been held 
 that a mandatory injunction can only be granted upon notice. 8 
 It has been further held that the evidence which would prevent 
 the issue of an interlocutory injunction will be sufficient to 
 induce the court to dissolve one previously granted. 9 
 
 § 232. Affidavits upon an Application for an Injunction. — The 
 affidavits upon which an injunction is sought are usually sworn 
 to by the plaintiffs or one of them, 1 but may be sworn to by any 
 person acquainted with the facts, 2 in which latter case the affi- 
 davit should, it seems, state a good reason for its not being 
 
 8 Dalglish v. Jarvie, 2 Mac. & G. 231. 9 Gary v. Domestic Springbed Co., 26 
 
 6 Tlie Lord Commissioner Mr. Baron Fed. R. 38. 
 
 Rolfe in Dalglish v. Jarvie, 2 Mac. & G. § 232. J Daniell'sCh.Pr. (5th Am.ed.) 
 
 231, 243, 244. 1669. 
 
 7 Daniell's Ch. Pr. (5th Am.ed.) 1666; 2 Lord Byron v. Johnston, 2 Meriv. 
 Smitli v. Clarke, 2 Dick. 455 ; Nichols v. 29 ; Brooks & Hardy v. O'Hara Bros,. 
 Kearsly, 2 Dick. 645. 8 Fed. R. 529. 
 
 8 Chicago, B. & Q. R. Co. v. Burling- 
 ton, C. R. & N. R. Co., 34 Fed. R. 481.
 
 332 INJUNCTIONS. [CHAP. XVI. 
 
 sworn to by one of the plaintiffs. 3 It is in general necessary 
 that a plaintiff should swear positively to his title. 4 An injunc- 
 tion has been refused when a plaintiff merely swore upon in- 
 formation and belief, that he was a remainder-man under a 
 settlement. 5 Upon an application for an injunction to stay 
 waste, he must set out his title with particularity. A statement 
 " that the plaintiff was entitled to the fee-simple of the estate " 
 has been held insufficient. 6 It has been said that if fraud is relied 
 upon as a basis for an injunction, it must be sworn to positively, 
 and not merely upon information and belief. 7 The plaintiff 
 should also in the affidavits show some actual violation of his 
 rights, or a sufficient ground to apprehend it. 8 An injunction 
 will be granted though the bill is not sworn to, provided that 
 the accompanying affidavits show a proper case for it ; 9 but not 
 unless a proper case is made out by the bill itself. 10 If the 
 defendant in his opposing affidavits set up as a defense new 
 matter in avoidance of the case shown by the plaintiff, the latter 
 may have leave to file further affidavits in rebuttal ; but gener- 
 ally no subsequent affidavits can be filed by the defendant. 11 
 Rebutting affidavits may also be used to support any allegations 
 of the bill denied in the answer except such as state the plain- 
 tiff's title to property affected by the litigation. 12 The authori- 
 ties are conflicting as to whether or not the plaintiff's title, if 
 denied in the answer, can be supported by rebutting affidavits. 13 
 Documentary proof, if of equal force with affidavits can also 
 be used in support or in opposition to a motion for an injunc- 
 tion. 14 Upon the hearing of a motion for a preliminary injunc- 
 tion, the rules of evidence are applied less strictly than upon 
 
 3 Lord Byron v. Johnston, 2 Meriv. Leo v. Union Pacific Ry. Co., 17 Fed. R. 
 29; Spalding v. Keely, 7 Simons, 377; 273; Land Co. of New Mexico v. Elkins, 
 Scotson v. Gaury, 1 Hare, 99 ; Kerr on 20 Fed. R. 545. 
 
 Injunctions, 548. u Day v. New England Car Spring Co., 
 
 4 Daniell's Ch. Pr. (5th Am. ed.) 1069. 3 Blatchf. 154. 
 
 6 Davis v. Leo, 6 Ves. 784. 12 Brooks v. Bicknell, 3 McLean, 250 ; 
 
 6 Whitelegg v. Whitelegg, 1 Brown Farmer v. Calvert Lithographing Co., 1 
 
 Ch. C. 57. Flippin, 228. 
 
 ' Brooks & Hardy v. O'Hara Bros., 13 Compare Poor v. Carleton, 3 Sum- 
 
 8 Fed. R. 529. ner, 70 ; Goodyear v. Mullee, 3 Fisher, 
 
 8 Gibson v. Smith, 2 Atk. 182 ; Jack- 420, with Farmer v. Calvert Lithograph- 
 son v. Cator, 5 Ves. 688 ; Hanson v. Gar- ing Co., 1 Flippin, 228 ; Parker v. Sears, 1 
 diner, 7 Ves. 305. Fisher Pat. Cas. 93; United States v. 
 
 9 Smith v. Schwed, 6 Fed. R. 455. Parrott, 1 McAll. 271. 
 
 10 Cooper v. Mattheys, 8 Law Rep. 14 Schermerhorn v. L'Espenasse, 2 Dall. 
 413; Wilson v. Stolley, 4 McLean, 272; 360.
 
 § 233.] RULES OF DECISION. 333 
 
 the final hearing of the cause ; and consequently decrees entered 
 in suits between strangers affecting the validity of a patent in 
 question may be offered in evidence, in support of an application 
 for a preliminary injunction, but not in support of an application 
 for one that is to be perpetual. 15 
 
 § 233. Rules of Decision upon Applications for Interlocutory In- 
 junctions. — The issue of an interlocutory injunction is never a 
 matter of right, but rests in the sound discretion of the court. 
 In order to obtain one, the plaintiff must show either that there 
 is no doubt of the wrongful nature of the act sought to be en- 
 joined, 1 or that his own claims of right have been acquiesced 
 in without question for a long period of time, 2 or that the injury 
 which will result to himself from a refusal of the injunction will 
 be very great, and that to the defendant from the issue thereof 
 very slight. 3 Otherwise, an interlocutory injunction will be 
 denied him. 4 A preliminary injunction to restrain the infringe- 
 ment of a patent will nearly always be refused, if the defendant 
 has ample pecuniary responsibility, or gives security against loss 
 to the plaintiff, and is willing to keep an account of his manu- 
 facture, use and sale of the article claimed to be patented, and 
 the damages which the plaintiff will suffer can be readily reck- 
 oned in money. 5 A preliminary injunction may also be refused 
 when the plaintiff has been guilty of laches in applying for it ; 
 even though his delay has not been such as to disentitle him to 
 a perpetual injunction after the hearing. 6 If an injunction has 
 
 1 5 Buck v. Hermance, 1 Blatclif. 322 ; 4 Coffeen v. Brunton, 5 McLean, 256 ; 
 
 Matthews v. Ironclad Manuf. Co., 19 Smith v. Cummings, 1 Fisher Pat. Cas. 
 
 Fed. R. 321. 152 ; French v. Brewer, 3 Wall. Jr. 346; 
 
 § 233. * Minturn v. Larue, 1 McAll. Pentlarge v. Beeston, 1 Fed. R. 862 ; 
 
 370 ; Buchanan v. Rowland, 2 Fisher, Kirby Bung Manuf. Co. v. White, 1 Fed. 
 
 341 ; Doughty v. West, 2 Fisher, 553. R. 604. 
 
 2 Varick v. Mayor of New York, 4 6 Foster v. Moore, 1 Curt. 279; Morris 
 
 J. Ch. (N. Y.) 53; Kirby Bung Manuf. v. Shelbourne, 8 Blatchf. 266 Gilbert & 
 
 Co. v. White, 1 Fed. R. 604; McKay v. B. Manuf. Co. v. Bussing, 12 Blatchf. 426; 
 
 Dibert, 5 Fed. R. 587 ; W. U. Tel. Co. v. Swift v. Jenks, 19 Fed. R. 641 ; Hoe v. 
 
 Union Pacific R. R. Co., 3 Fed. R. 721 ; Boston Daily Advertiser Co., 14 Fed. R. 
 
 Atlantic & Pacific Tel. Co. v. Union Pa- 914; U. S. Annunciator Co. v. Sanderson, 
 
 cine Ry. Co., 1 Fed. R. 745. 3 Blatchf. 184. But see Gibson v. Van 
 
 » W. U. Tel. Co. v. St. Jo. & W. Ry. Dresar, 1 Blatchf. 532 ; Tracy v. Torrey, 
 
 Co., 3 Fed. R. 430 ; W. U. Tel. Co. v. 2 Blatchf. 275 ; Parkhurst v. Kinsman, 2 
 
 Burlington & S. W. Ry. Co., 11 Fed. R. 1 ; Blatchf. 78 ; Mc Williams Manuf. Co. v. 
 
 American Union Tel. Co. v. Union Pacific Blundell, 11 Fed. R. 419. 
 
 Ry. Co., 1 McCrary, 188; Atlantic & Pa- 6 Gordon v. Cheltenham Ry. Co., 5 
 
 cine Tel. Co. v. Union Pacific Ry. Co., 1 Beav. 229 ; Mundy v. Kendall, 23 Fed. R. 
 
 McCrary, 541. 591 ; Kerr on Injunctions, 22, 23.
 
 334 INJUNCTIONS. [CHAP. XVI. 
 
 been obtained by an interlocutory order, and it is desired to con- 
 tinue it provisionally after a hearing, a direction to that effect 
 should be inserted in the interlocutory decree then entered. 7 
 
 § 234. The Writ of Injunction. — Immediately upon the entry 
 of an order for an injunction, the party who obtained it is entitled 
 to have the writ issued from the clerk's office and served. 1 He 
 should attend to this within a reasonable time. Where the writ 
 was tested six weeks after the entry of the order granting it and 
 was not served till nearly a year afterwards, the court refused to 
 punish the defendant for disobedience, saying that, after the lapse 
 of so much time, the plaintiff should have applied for leave to use 
 the writ. 2 Like all other writs and processes issuing from the 
 courts of the United States, writs of injunction must be under 
 the seal of the court from which they issue, and signed by the 
 clerk thereof. Those issuing from the Supreme Court or a Cir- 
 cuit Court must bear teste, from the date of such issue, of the 
 Chief Justice of the United States, or, when that office is vacant, 
 of the associate justice next in precedence, and those issuing from 
 a District Court must bear teste of the judge, or when that office 
 is vacant, of the clerk thereof. 3 " The orders pronounced by the 
 Court in cases of special injunctions before answer, have varied 
 at different periods. The form most frequently adopted enjoined 
 the party ' till further order.' In some cases the injunction has 
 been till ' appearance and further order ; ' in others till ' answer 
 and further order.' But the form at present used, and which is 
 established by a rule laid down b} T Lord Eldon, is ' till answer 
 or further order.' This has been adopted as giving defendant 
 the liberty to move, if necessary, to dissolve upon affidavit, before 
 he has answered the bill." 4 The writ should contain a concise 
 description of the particular acts or things in respect to which 
 the defendant is enjoined ; 5 and should conform to the directions 
 of the order granting the injunction. 6 If, however, the writ is 
 broader than the order warrants, the defendant should apply to 
 the court for an order setting it aside or modifying it. 7 It 
 seems that he is not justified in disobeying it and raising the 
 
 i Darnell's Ch. Pr. (2d Am. ed.) 1902. 4 Daniell's Ch. Pr. (2d Am. ed.) 1805 ; 
 
 § 234. 2 Daniell's Ch. Pr. (2d Am. ed.) Read v. Consequa, 4 Wash. 174. 
 1816, 1817, 1961. 5 Whipple v. Hutchinson, 4 Blatchf. 
 
 2 McCormick v. Jerome, 3 Blatchford, 190. 
 
 486. 6 Sickels v. Borden, 4 Blatchf. 14. 
 
 3 U. S. R. S. §§ 911, 912. 7 Sickels v. Borden, 4 Blatchf. 14.
 
 § 235.] DISSOLUTION OF INTERLOCUTORY INJUNCTIONS. 335 
 
 objection when a motion is made for an attachment against him. 8 
 It seems that a writ is insufficient which designates the acts 
 sought to be enjoined by a reference to the bill without describ- 
 ing them. 9 The English practice was to mention in the writ a 
 money penalty to be incurred by the defendant if he disobeyed 
 it; but that does not seem to be necessary here. 10 The writ 
 should be addressed to the persons whom it is desired to enjoin. 11 
 If the injunction is against waste, or forbids the continuance of 
 a nuisance, or some other similarly inequitable act, it is usually 
 addressed to the defendant, his servants, workmen, and agents; 12 
 if to restrain proceedings in another court, to the defendant, his 
 attorneys, and agents, 13 even though the bill prays for an injunc- 
 tion against the defendant alone. But the latter's tenants cannot 
 be thus enjoined, unless they have become such after the com- 
 mencement of the suit or have been made parties to it. 14 The 
 writ should be endorsed or subscribed with the name and office 
 address of the plaintiff's solicitor, or with the name and residence 
 of the plaintiff if he appears in person. 15 
 
 § 235. Dissolution of Interlocutory Injunctions in General. — The 
 common injunction was dissolved as of course upon the defend- 
 ant's putting in a sufficient answer to the bill. The practice in 
 such a case was for him to obtain an order nisi, upon the return 
 of which the injunction was always dissolved, unless the plaintiff 
 could show that the answer was insufficient for the purpose either 
 of defence or of discovery. 1 A special injunction can only be 
 dissolved by a special motion, either in open court or at a special 
 hearing appointed elsewhere for that purpose by a judge of the 
 court. 2 The motion may be made at any time before decree, 3 
 even, it seems, before the defendant has been served with pro- 
 cess, 4 and before he has appeared. 5 When a special injunction 
 
 8 Rickels ?-. Borden, 4 Blatchf. 14. § 235. 1 Daniell's Ch. Pr. (2d Am. ed.) 
 
 9 Whipple v. Hutchinson, 4 Blatchf. 1820-1829; Poor v. Carleton, 3 Sumner, 
 190. 70; New York v. Connecticut, 4 Dall. 
 
 w Low v. Hauel, 1 Wall. Jr. 345. 1, 3, note 1, per Washington, J. 
 
 11 Daniell's Ch. Pr. (2d Am. ed.) 1817. 2 Kerr on Injunctions, 561 ; Daniell's 
 
 12 Kerr on Injunctions, 559; Daniell's Ch. Pr. 1675; Wilkins v. Jordan, 3 Wash. 
 Ch. Pr. (5th Am. ed.) 1673 ; Humphreys C. C. 226; Caldwell v. Walters, 4 Cranch 
 v. Roberts, Seton's Decrees (4th ed.), C. C 577. 
 
 173. 3 Kerr on Injunctions, 500 ; Daniell's 
 
 « Daniell's Ch. Pr. (5th Am. ed.) 1673. Ch. Pr. (5th Am. ed.) 1676 ; Met. G. & S. 
 
 1 4 Ilodson v. Coppard, 29 Beav. 4 ; Exchange r. Chicago Board of Trade, 15 
 Kerr on Injunctions, 543. Fed. II. 817. 
 
 15 Kerr on Injunctions, 559 ; Daniell's 4 Shields v. McChmg, 6 W. Va. 79. 
 Ch. Pr. (5th Am. ed.) 1G74. 6 Menzies v. Rodrigues, 1 Price, 92.
 
 336 INJUNCTIONS. [CHAP. XVI. 
 
 has been granted against several defendants, any of them may 
 move to dissolve it as against himself; but he should in that 
 case serve the others as well as the plaintiff with a notice of his 
 motion. 6 In one case after answer, a notice left at the office of 
 the solicitor for the plaintiff during his absence from the city 
 three days before the motion was held sufficient." If the motion 
 to dissolve is made before answer, it must be supported by affi- 
 davits or documentary proof contradicting the statements upon 
 which the injunction was obtained, 8 unless the defendant can show 
 that it is plain upon the face of the plaintiff's bill and affidavits 
 that he was not entitled to the injunction. 9 When the injunction 
 has been irregularly issued, the defendant should move to dis- 
 charge the order granting it. 10 If he should move to dissolve it, 
 he might be held to have by so doing recognized its regularity. 11 
 It has been held that after a demurrer put in by him to the bill 
 has been overruled a defendant can only move to dissolve by 
 leave of the court ; which was, in one case, only granted upon 
 his affidavit that the demurrer was not interposed for delay, and 
 his giving security to pay all damage to the plaintiff thereby 
 caused. 12 Where the application for dissolution was made after 
 answer, it was originally thought that the plaintiff could not 
 show that any of the allegations therein contained were false ; 13 
 but that doctrine has been, in this country at least, exploded, 14 
 and it is well settled that the plaintiff can not only dispute the 
 truth of such allegations, whether they are positive or negative, 
 but is at liberty to file counter affidavits in reply to new matter 
 contained in the defendant's affidavits or answer. 15 When a 
 stay-order has been made, and simultaneous applications, by the 
 defendant to discharge the stay-order, and by the plaintiff for an 
 injunction, are heard together, the plaintiff has the right to open 
 
 6 Thompson v. Geary, 5 Beav. 131 ; 12 Woodworth v. Edwards, 3 W. & M. 
 
 Kerr on Injunctions, 564. But see Dan- 120. 
 
 iell's Ch. Pr. (5th Am. ed.) 1676, note 1. 13 Daniell's Ch. Pr. (5th Am. ed.) 1676, 
 
 1 Caldwell v. Walters, 4 Cranch C. C. note 4. 
 
 677. 14 Poor v. Carleton, 3 Sumner, 70 ; 
 
 8 Daniell's Ch.Pr. (5th Am. ed.) 1676; United States v. Parrott, 1 McAll. 271; 
 Young v. Grundy, 6 Cranch, 51. Orr v. Littlefield, 1 W. & M. 13 ; Orr v. 
 
 9 Hudson v. Maddison, 12 Simons, 416 ; Merrill, 1 W. & M. 376 ; Clum v. Brewer, 
 Kidwell v. Masterson, 3 Cranch C. C. 52. 2 Curt. 506. 
 
 w Angier v. May, 3 W. R. 330; Dan- 15 Day v. New England Car Spring Co., 
 
 iell's Ch. Pr. (5th Am. ed.) 1676; Kerr 3 Blatchf. 154 ; Daniell's Ch. Pr. (5th Am. 
 on Injunctions, 564. ed.) 1676; Shoemaker c. Nat. Mechanics' 
 
 11 Vipan v. Mortlock, 2 Merir. 476 ; Bank, 1 Hughes, 101. 
 Kerr on Injunctions, 564.
 
 § 236.] DISSOLUTION OF INJUNCTIONS. 337 
 
 and close the argument. 16 If upon the application to dissolve an 
 injunction the court is not satisfied that the plaintiff is entitled 
 to retain it, it will dissolve the injunction, and may then direct 
 an issue, an action at law, or a reference before the hearing. 17 
 If, however, it is satisfied that the plaintiff is entitled to the writ, 
 the court will direct the injunction to be continued until the 
 hearing. 18 Where the court dissolves the injunction upon the 
 ground that it appears upon the face of the bill that the plaintiff 
 is not entitled thereto, and that is the only relief prayed for by 
 him, it cannot at the same time dismiss the bill; for the plaintiff 
 has still the right to bring the suit to a hearing. 19 If the question 
 is left in doubt upon the motion to dissolve, it seems that the 
 motion will be denied. 20 The ambiguity of the order granting 
 the injunction is sufficient ground for its dissolution or modifica- 
 tion. 21 The defendant's delay in moving to dissolve the injunc- 
 tion may deprive him of his right to have it dissolved. 22 When 
 a special injunction has been granted after a full hearing, it will 
 not be dissolved except on new evidence. 23 It has been held 
 that a preliminary injunction will not be dissolved after answer 
 upon grounds shown by affidavits, which, from their not having 
 been set up in the answer, cannot be used at the hearing of the 
 whole case. 24 A judge will very rarely dissolve an injunction 
 granted by one of his judicial brethren. 25 After an injunction has 
 been dissolved, if evidence subsequently taken shows that it was 
 properly issued, it may be issued anew. 26 The dissolution of an 
 ex parte injunction on account of a suppression of material facts 
 does not preclude the plaintiff from applying for another injunc- 
 tion on the merits. 27 
 
 § 236. Dissolution of Injunctions for Causes arising after their 
 Issue. — An injunction may also be dissolved if the plaintiff is 
 
 16 Fraser v. Whalley, 2 Hem. & M. 10. ^ Dalglish v. Jarvie, 2 Macn. & G. 231. 
 
 17 Daniell's Ch. Pr. (2d Am. ed.) 1897. 22 Florence Sewing Machine Co. v. 
 
 18 Packington v. Packington, 1 Dickens, Grover & Baker Sewing Machine Co., 
 101 ; Daniell's Ch. Pr. (5th American ed.) 110 Mass. 1 ; Kerr on Injunctions, 565. 
 1678. 23 Woodworth v. Hall, 1 W & M. 389. 
 
 19 Brooke v. Clarke, 1 Swanst. 550 ; 2i Union Paper Bag Machine Co. v. 
 Blow >■. Taylor, 4 Hen. & Munf. (Va.) 159. Newell, 11 Blatchf. 549. 
 
 2J Cooper v. Mattheys,*5 Penn. L.J. 38 ; 25 Cole Silver Mining Co. v. Virginia & 
 
 8. c. 8 Law Rep. 413 ; Fisher v. Lord, 6 Gold Hill Water Co., 1 Saw. 685 ; Pres- 
 
 West L. J. 137 ; Woodworth v. Hall, 1 ton v. Walsh, 10 Fed. R. 315. 
 
 W. & M. 389 ; Woodworth v. Rogers, 3 2G Tucker v. Carpenter, Hempst. 440. 
 
 W. & M. L35; Sparkman v. Higgins, 1 27 Fitch v. Rochfort, 18 L. J. Ch. 458; 
 
 Blatchf. 205. Kerr on Injunctions, 564. 
 
 22
 
 338 INJUNCTIONS. [chap, xvl 
 
 guilty of gross and inexcusable delay in taking testimony or in 
 bringing the cause to a hearing ; l and in general if from a change 
 of circumstances its continuance would no longer serve any useful 
 purpose. 2 The subsequent passage of an act of Congress legaliz- 
 ing a structure which has been enjoined as a nuisance is a reason 
 for the dissolution of an injunction. 3 It has been held that an 
 injunction staying proceedings at law against a bankrupt is dis- 
 solved ipso facto by his discharge, 4 but remains unaffected by 
 his delay in applying for his discharge. 5 The expiration of a 
 patent does not without the order of the court dissolve an in- 
 junction against its infringement. 6 An injunction is not dissolved 
 by an amendment of the bill 7 unless the amendment substan- 
 tially changes the cause of action. 8 But it is customary to in- 
 clude in the order allowing an amendment a direction that it be 
 " without prejudice to the injunction." The allowance of a 
 demurrer to the whole bill puts an end to an injunction which 
 had previously been obtained; 9 but leave will be given to 
 amend without prejudice to the injunction, when the demurrer 
 is allowed on account of a defect in form. 10 " The allowance of 
 a plea does not dissolve an injunction. There may be some 
 equity shown to continue it. An order for its dissolution must 
 be obtained." n An injunction is not dissolved by an abatement 
 or the suits becoming defective, but the defendant must, if he 
 wishes to be freed from the restraint thereby imposed, move that 
 the plaintiff or his representatives revive within a limited time, 
 or that the injunction ma}' be dissolved. 12 
 
 § 237. The Imposition of Terms upon the Issue, Denial, Dissolu- 
 tion, or Continuance of an Injunction. — As the issue of a special 
 injunction is in its discretion, the court may impose terms upon 
 
 § 236. 1 Read v. Consequa, 4 Wash. Co., 2 Beav. 253. But see Sharp v. Ash- 
 
 C. C. 174; Bradley v. Reed, 12 Pitts. L.J. ton, 3 V. & B. 144. 
 
 65; Schermehorn v. L'Espenasse, 2 Dall. 8 Attorney- General v. Marsh, 16 
 
 360; In the Matter of Schwarz, 14 Fed. Simons, 572; Kerr on Injunctions, 566. 
 R. 787. 9 Schneider v. Lizardi, 9 Beav. 461, 
 
 2 In re Jackson, 9 Fed. R. 493 ; Re 468 ; Kerr on Injunctions, 565. 
 
 Pitts, 9 Fed. R. 542. u Rawlings v. Lamhert, 1 J. & H.458; 
 
 3 Baird v. Shore Line Ry. Co., 6 Kerr on Injunctions, 565, 566. 
 Blatchf. 461. ll Kerr on Injunctions, 566; Philips v. 
 
 4 In re Thomas, 3 N. B. R. 7. Langhorn, Dickens, 148 ; Ferrand v. 
 6 In re Schwarz, 14 Fed. R. 787, 789. Hamer, 4 M. & C. 143. 
 
 6 American Diamond Rock Boring Co. Vi Chowick v. Dimes, 3 Beav. 290 ; Lee 
 v. Rutland Marble Co., 2 Fed. R. 356. v. Lee, 1 Hare, 622 ; Chester v. Life Asso- 
 
 7 Read v. Consequa, 4 Wash. C. C. 1 74 ; ciation of America, 4 Fed. R. 487. 
 Warburton v. London & Blackball Ry. 

 
 § 237.] IMPOSITION OF TEEMS. 339 
 
 the plaintiff or defendant when granting or refusing the issue, 
 dissolution, or continuance of the same. 1 The usual terras are 
 the giving of a bond or undertaking with good security to in- 
 demnify the other party against all loss that may result from the 
 issue or withholding of the injunction. 2 In some instances the 
 court has withheld an injunction to restrain an infringement of 
 a patent or copyright upon the defendant's merely undertaking 
 to keep an account of the sales made by him during the pen- 
 dency of the suit. 3 Sometimes the terms are that the defen- 
 dant shall give an undertaking to abide by the farther order of 
 the court. 4 An injunction will never be issued to restrain the 
 collection of State taxes unless the plaintiff first pays " what is 
 conceded to be due, or what can be seen to be due on the face 
 of the bill, or be shown by affidavits, whether conceded or 
 not." 5 Whether or not, if the court upon the final hearing 
 decides after a preliminary injunction has been denied that 
 a perpetual one should issue, or dissolves an injunction previ- 
 ously granted, the finally successful party can have his dam- 
 ages assessed and the bond or undertaking given as security 
 enforced by the court, or must bring an action at law, is 
 under the authorities an open question. Mr. Justice Curtis held 
 at circuit that he must sue at law; 6 but a recent opinion of the 
 Supreme Court, although expressly reserving the question, 
 seems to intimate that a court of equity has the power to assess 
 the damages and enforce payment of the bond. 7 The latter 
 view seems more in harmony with the general principles gov- 
 erning equity practice, 8 and has been adopted by Judge Drum- 
 mond in a recent case in a Circuit Court. 9 Such a court has, 
 at all events, the power to absolve from all liability the per- 
 sons held by the bond, and it would take a very strong case 
 
 § 237. i- Russell v. Farley, 105 U. S. 436; Jones v. Great Western Ry. Co., 1 
 
 433. [English] Railway Cases, 684. 
 
 2 Russell v. Farley, 105 U. S. 433 ; 6 state Railroad Tax Cases, 92 U. S. 
 
 Kirby Bung Manuf. Co. v. White, 1 Fed. 575, 617 ; National Bank v. Kimball, 103 
 
 R. 604 ; Northern Pacific R. R. Co. v. St. U. S. 732 ; Parmlcy v. Railroad Compa- 
 
 Paul, Minneapolis, & Manitoba R. R. Co., nies, 3 Dill. 25; Huntington v. Palmer, 8 
 
 2 McCrary, 260 ; s. c. 4 Fed. R. 688. Fed. R. 449. 
 
 8 Furbush v. Bradford, 1 Fisber's Pat. 6 Merryfleld v. Jones, 2 Curt. 306. See 
 
 Cas. 317 ; McCrary v. Penn. Canal Co., also Bein v. Heath, 12 How. 168. 
 5 Fed. R. 367 ; Kerr on Injunctions, 29, 7 Russell v. Farley, 105 U. S. 433. 
 
 30. 8 See Moore v. Moore, 25 Beav. 8; 
 
 * Attorney-General v. Manchester & Sugden v. Hull, 28 Beav. 263. 
 Leeds Ry. Co., 1 [English] Railway Cases, 9 Lea v. Deakin, 13 Fed. R. 514.
 
 340 
 
 INJUNCTIONS. 
 
 [CHAP. XVI. 
 
 to induce an appellate court to interfere with such a decision 
 by it. 10 
 
 §238. Perpetual Injunctions. — Perpetual injunctions can only 
 be granted at the entry of a decree. 1 It is irregular to grant one 
 upon affidavits. 2 In patent, trademark and copyright cases, how- 
 ever, they are often granted by an interlocutory decree which also 
 directs a reference to a master for an accounting ; 3 but the court 
 has the power to suspend the injunction until an appeal can be 
 taken. 4 A perpetual injunction is either originally granted, or 
 continued. They may be granted originally in all cases in which 
 temporary injunctions might have been granted, and also to re- 
 strain the setting up of outstanding terms when it would be in- 
 equitable to do so. 5 In order to obtain a perpetual injunction, it 
 is not necessary that a provisional injunction should have been 
 asked for. 6 For after the commencement of a suit seeking to pre- 
 vent an act upon the defendant's part, he is said to proceed at his 
 peril, and if the court finally decides in favor of the plaintiff it 
 may order him to undo the result of his acts since he first had 
 notice of the suit. 7 A perpetual injunction may be obtained in 
 a case where a preliminary injunction has been asked for and 
 refused or obtained and dissolved. 8 If, however, the plaintiff 
 has not previously obtained a preliminary injunction and at 
 the hearing fails to make out a clear title, he usually will not be 
 allowed to use the facts proved by him, as evidence of a prima 
 facie case, entitling him then to a temporary injunction till he 
 can establish his case beyond a doubt ; 9 unless indeed, the in- 
 junction sought be one that is never granted before a hearing. 10 
 
 10 Russell v. Farley, 105 U. S. 433. See 
 also Deakin v. Stanton, 3 Fed. R. 435; 
 Grundy v. Young, 2 Cranch C. C. 114; 
 Bentley v. Joslin, Hempst. 218. 
 
 § 238. i Daniell's Ch. Pr. (2d Am. ed.) 
 1903. 
 
 2 Adams v. Crittenden, 17 Fed. R. 42. 
 
 8 Rumf ord Chemical Works v. Hecker, 
 11 Off. Gaz. 330 ; Brown v. Deere, 6 Fed. 
 R. 484 ; s. c. 2 McCrary, 425. 
 
 4 Barnard v. Gibson, 7 How. 650, 658 ; 
 Potter v. Mack, 3 Fisher, 428 ; Brown v. 
 Deere, 6 Fed. R. 487; Munson v. The 
 Mayor, 19 Fed. R. 313. 
 
 5 Askew v. Poulterers' Co., 2 Ves. Sen. 
 89; Duke of Buckingham i». Duchess of 
 Buckingham, 2 Eq. Cases Abr. 527. 
 
 e Daniell's Ch. Pr. (2d Am. ed.) 1900. 
 See also Baily v. Taylor, 1 R. & M. 73. 
 
 7 Charles River Bridge v. Warren 
 Bridge, 6 Pick. (Mass.) 376; Wing v. 
 Fairhaven, 8 Cush. (Mass.) 363 ; Winslow 
 v. Nayson, 113 Mass. 411 ; Smith v. Day, 
 L. R. 13 Ch. D. 651. 
 
 8 Daniell's Ch. Pr. (2d Am. ed.) 1900 ; 
 Baily v. Taylor, 1 R. & M. 73 ; Bacon v. 
 Spottiswoode, 1 Beav. 382 ; Bacon v. 
 Jones, 4 M. & C. 433 ; Tucker v. Carpen- 
 ter, Hempst. 440. 
 
 s Bacon v. Spottiswoode, 1 Beav. 382 ; 
 8. c. on appeal, sub nom. Bacon v. Jones, 
 4 M. & C. 433. 438 ; Daniell's Ch. Pr. 
 (2d Am. ed.) 1901. 
 
 i° Daniel's Ch. Pr. (2d Am. ed.) 1901.
 
 § 238.] PEEPETUAL INJUNCTIONS. 341 
 
 The most common kinds of perpetual injunctions, however, are 
 those which are made by continuing or extending and making 
 perpetual preliminary injunctions at the hearing. This can only 
 be done by inserting a direction to that effect in the decree. 11 
 In order to support a decree for a perpetual injunction, it has 
 been said that the court requires that there should be nothing 
 like a doubt in the case. 12 The granting of such an injunction 
 is in the discretion of the court, and, like a provisional injunc- 
 tion, it may be allowed 13 or refused u upon terms. On account 
 of the weight as a precedent given to a decree for a perpetual 
 injunction in a patent case, the court may refuse to grant one 
 when the case has been compromised and the defendant 
 abandons it at the hearing. 15 
 
 " Daniell's Ch. Pr. (2d Am. ed.) 1902 ; Iron M., & Southern Ry. Co., 10 Fed. R. 
 
 Gardner v. Gardner, 87 N. Y. 14. 210 ; s. c. 10 Fed. R. 869. 
 
 12 Whittingham v. Wooler, 2 Swanst. H McCrary v. Penn. Canal Co., 5 Fed. 
 428 n. ; Troy & B. R. R. Co. v. Boston, H. R. 367 ; Brown v. Deere, Mansur, & Co., 6 
 T. & W". Ry. Co., 86 N. Y. 107; Daniell's Fed. R. 487. 
 
 Ch. Pr. (2d Am. ed.) 1900. 1S Hayes v. Leton, 5 Fed. R. 521. 
 
 13 Southern Express Co. v. St. Louis,
 
 342 EECEIVEKS. [CHAP. XVII. 
 
 CHAPTER XVII. 
 
 RECEIVERS. 
 
 § 239. Definition of Receiver. — A receiver is an officer appointed 
 b} r a court of equity to assume the custody of property pending 
 litigation concerning the same. In England the term is usually 
 applied only to those appointed to receive the rents and profits 
 of land and to get in outstanding property ; and one selected to 
 carry on or superintend a trade or business is usually denomi- 
 nated " a manager," or " a receiver and manager." 1 But in the 
 United States, both classes of officers are called receivers. The 
 Revised Statutes authorize the Comptroller of the Currency to 
 appoint in certain cases a receiver of a national banking associa- 
 tion, whose powers and duties are in many respects analogous to 
 those of a receiver appointed by a court of equity. 2 But, as the 
 learning upon this subject does not concern the practice of courts 
 of equity, it will not be considered here. 
 
 § 240. When Receivers will be Appointed. — A receiver may be 
 appointed to provide for the safety of property pending litigation 
 to determine the title to the same ; to preserve property in danger 
 of being dissipated or destroyed by those having the legal title 
 to its possession ; to preserve the property of infants during their 
 minority, when they have no guardian and their parents are dead 
 or unfit to be trusted with it ; to preserve the property of idiots 
 and lunatics when it is impossible to obtain a proper person as 
 committee ; and when the appointment is authorized by statute. 1 
 A receiver may be appointed to provide for the safety of prop- 
 erty pending litigation ; to determine the title to the same, 
 whether the litigation is in a court of equity, 2 of probate, 3 of 
 
 § 239. ! Daniell's Ch. Pr. (2d Am. ed.) § 240. 1 Kerr on Receivers (2d Am. 
 
 2006. ed.) 3. 
 
 2 See U. S. R. S. §§ 5234-5237 ; Laws of 2 Davis v. The Duke of Marlborough, 
 
 1876, ch. 156 (19 St. at L. 63); 1st Supp. 2 Swanst. 108; Curling v. Marquis 
 
 U. S. R. S. 216 ; 24 St. at L. ch.28, p. 8 ; Townshend, 19 Ves. 628. 
 
 Price v. Abbott, 17 Fed. R. 500 ; and § 15 8 King v. King, 6 Ves. 172 ; Matter 
 
 of this work. of Colvin, 3 Md. Ch. Dec. 279 ; Kerr on 
 
 Receivers, (2d Am. ed.) 28-37.
 
 § 240.] WHEN RECEIVERS WILL BE APPOINTED. 343 
 
 bankruptcy, 4 in a foreign court, 5 and sometimes, though very 
 rarely, in a court of law. 6 By far the must ordinary cases where 
 a receiver is appointed are, however, suits in equity to obtain 
 equitable assets, for the foreclosure of a mortgage, and for the 
 dissolution or winding up of the affairs of a partnership. It was 
 the English rule that a receiver could not be appointed at the 
 suit of a first mortgagee, since he had it in his power to take pos- 
 session himself. 7 In this country, however, receivers are fre- 
 quently appointed in such a case. 8 As a general rule, a receiver 
 of the effects of a partnership will not be appointed unless the 
 bill prays a dissolution and shows a proper case for the same. 9 
 But it has been said that " where suits have been instituted to com- 
 pel partners to act according to the provisions of instruments into 
 which they have entered ; in such cases, the Court will take care 
 that the decree shall not be defeated by anything to be done in the 
 mean time, and will appoint a Receiver to protect the property." 10 
 Receivers may be appointed to preserve property in danger of 
 being dissipated or destroyed by those having the legal title to 
 its possession, at the suit of beneficiaries, legatees, next of kin, 
 or creditors, when a trustee, 11 executor, 12 or administrator 13 is 
 insolvent and has not given bonds, or is guilty of misconduct ; 
 and at the suit of remainder-men, when the holder of the par- 
 ticular estate is guilty of voluntary or permissive waste, 14 or 
 improperly refuses to renew leaseholds. 15 In the case of trus- 
 tees, the court will thus interfere whether the trust is express or 
 
 4 Sedgwick v. Place, 3 N. B. R. 35; Darnell's Ch. Pr. (2d Am.ed.) I960, 1967; 
 Alabama & Chattanooga R. R. Co. v. Kerr on Receivers (2d Am. ed.), 93. 
 Jones, 5 N. B. R. 97 ; Keenan v. Shannon, 10 Darnell's Ch. Pr. (2d Am. ed.) 1967 ; 
 9 N. B. R. 441 ; Kerr on Receivers (2d Const v. Harris, T. & R. 49G. 
 
 Am. ed.) 110-113. u McCosker v. Brady, 1 Barb. Ch. 
 
 5 Transatlantic Co. v. Pietroni, Johns. (N. Y.) 329; Brodie v. Barry, 3 Meriv. 
 604. 695 ; Janeway v. Green, 16 Abb. Pr. 
 
 6 Talbot t>. Scott, 4 K. & J. 96; Fin- (N. Y.) 215, note. 
 
 gal v. Blake, 2 Molloy, 50; Whitney 12 Utterson v. Mair, 2 Ves. Jr. 95; 
 
 v. Buckman, 26 Cal. 447 ; Ilorton v. Scott v. Becher, 4 Price, 346. But see 
 
 White, 84 N. C. 297 ; Jefferys v. Smith, 1 Gladdon v. Stoneman, 1 Madd. 143 n. ; 
 
 J. & W. 298 ; Kerr on Receivers (2d Am. Langley v. Hawk, 5 Madd. 4G ; Kerr on 
 
 ed.), 114-127. Receivers (2d Am. ed.), 20. 
 
 7 Berney v. Sewell, 1 J. & W. 647. 13 Hervey v. Fitzpa trick, Kay, 421 ; 
 
 8 See, for example, Stanton v. Ala- Ware v. Ware, 42 Ga. 408. 
 
 bama & Chattanooga R R. Co., 2 Woods, " Vose v. Reed, 1 Woods, 647, 050. 
 
 506; Allen?;. The Dallas & Wichita R. K. 15 Bennett v. Colley, 2 M. & K. 225; 
 
 Co., 3 Woods, 316, 326. s. c. 5 Simons, 181, 192; Lord Montford v. 
 
 9 Goodman v. Whitcomb, 1 J. & W. Lord Cadogan, 17 Ves. 485. 
 589 ; Oliver v. Hamilton, 2 Anst. 453 ;
 
 344 RECEIVERS. [CHAP. XVII. 
 
 implied. 16 A receiver may be appointed over the property of an 
 infant, 17 when the latter has no guardian, or his guardian is insol- 
 vent or has been guilty of misconduct 18 and has no parents, or 
 his parents are unfit to be entrusted with the care of his estate. 19 
 Receivers may be appointed over the property of idiots and luna- 
 tics when no person can be found disposed to act as committee ; w 
 or, it seems, where the committee is infirm, or the management 
 of the estate is very onerous, or the committee lives far from the 
 estate. 21 The statutes of the several States authorize the appoint- 
 ment of a receiver in numerous cases, especially in providing for 
 the dissolution of corporations. The statutes of the United 
 States authorize the appointment of a receiver of a national 
 bank by the Comptroller of the Currency in certain specified 
 cases. 22 Until the Comptroller has acted, however, a court 
 of the United States may appoint a receiver of the assets of such 
 a corporation. 23 Though after the appointment by the Comptroller 
 of such a receiver, it is doubtful whether a court of the United 
 States would appoint another: and after the appointment of one 
 by a court of competent jurisdiction, it is doubtful whether the 
 Comptroller of the Currency could thus interfere. 24 Indepen- 
 dently of statutory authority a court of equity will ordinarily 
 appoint a receiver of the property of a corporation in only seven 
 cases : 25 firstly, at the suit of mortgagees or other holders of 
 liens upon it; 26 secondly, at the suit of judgment creditors 
 seeking equitable assets; 27 thirdly, at the suit of persons inter- 
 ested, whether as stockholders or creditors in the property, 
 where there is a breach of duty by the directors, and an actual 
 
 16 Pritchard v. Fleetwood, 1 Meriv. 54; 114, citing Re Birch, Shelf, on Lun. 146; 
 
 Daniell's Ch. Pr. (5th Am. ed.), 1724. Re Seaman, Shelf, on Lun. 146. 
 
 " Hicks v. Hicks, 3 Atk. 277; Union 22 U. S. R. S. §§ 5141,5191, 5195, 5201, 
 
 Trust Co. v. Illinois Midland Railway 5205, 5234, 5235, 5236 ; Laws of 1876, ch. 
 
 Co., 117 U. S. 434; Sage v. Memphis & 156 (19 St. at L. p. 63) ; 1st Supp. U. S. 
 
 Little Rock R. R. Co., 125 U. S. 361 ; R. S. p. 216. 
 
 Kerr on Receivers (2d Am. ed.) 16-18. 23 Wright v. Merchants' Nat. Bank, 1 
 
 18 Pitcher v. Helliar, Dickens, 580 ; Flippin, 568 ; Irons v. Manufacturers' 
 High on Receivers, §§ 725-732. Nat. Bank, 6 Biss. 301. 
 
 19 Butler v. Freeman, Amb. 301 ; Kiffin 24 Harvey v. Lord, 10 Fed. R. 236. 
 
 v. Kiffin, cited in 1 P. Wms. 705; Kerr on 25 See Kerr on Receivers (2d Am. ed.), 
 
 Receivers (2d Am. ed.) 16-18. 80-83, Bispham's note ; Howe v. Deuel, 43 
 
 2 « Ex parte Warren, 10 Ves. 622; Barb. (N. Y.) 504, 507. 
 
 Anon., 1 Atk. 578 ; Ex parte Radcliffe, 1 26 Milwaukie & Minn. R. R. Co. v. 
 
 J. & W. 639 ; Kerr on Receivers (2d Am. Soutter, 2 Wall. 510. 
 
 ed.) 113, 114. 27 Covington Drawbridge Co. v. Shep- 
 
 21 Kerr on Receivers (2d Am. ed.) 113, herd, 21 How. 112.
 
 § 240.] WHEN RECEIVERS WILL BE APPOINTED. 345 
 
 or threatened loss ; w fourthly, where a corporation has been dis- 
 solved and has no officer to attend to its affairs ; 29 fifthly, where, 
 for a long time, the corporation has ceased to transact business, 
 and its officers have ceased to act ; 30 sixthly, where the govern- 
 ing body is so divided and engaged in such mutual contentions 
 that its members cannot act together; 31 and, seventhly, in one 
 case, a receiver was appointed at the application of the corpora- 
 tion itself, made before a default in the payment of interest upon 
 bonds secured by mortgages, where it was for the interest of the 
 public that the business carried on by the corporation — a rail- 
 road company — should be continued without interruption, and 
 the corporation was hopelessly insolvent, and there was danger 
 of an attempt by creditors to gain a preference by attachment or 
 otherwise in such a manner as would have prevented the con- 
 tinuance of the corporate business. 32 A court of equity will 
 often appoint a receiver of a railroad in a suit for the foreclosure 
 of a mortgage containing a clause pledging its tolls and income, 
 when it would not do so if no such clause were included in the 
 mortgage. 33 In one case the court said : " The rights of holders 
 of negotiable bonds issued by a railroad company and secured by 
 a mortgage on its property, are not to be measured by the same 
 rules as are applied to an ordinary mortgage on a farm or house 
 and lot, to secure one or two notes held by one mortgagee." 34 
 In a suit to enjoin the infringement of a patent by an insolvent 
 defendant, upon an interlocutory application, a Circuit Court 
 appointed a receiver of the profits made by such infringement. 35 
 
 28 Evans v. Coventry, 5 De G. M. & G. 81 Featlierstone v. Cooke, L. R. 16 Eq. 
 911; Sage v. Memphis & Little Rock R. It. 298; Trade Auxiliary Co. v. Vickers, 
 Co., 125 U. S. 361. See, as to the right of L. R. 16 Eq 303. 
 
 bondholders thus to interfere, Herrick v. 32 Wabash, St. L. & P. Ry. Co. v. Cen- 
 
 Grand Trunk Ry. Co., 7 Upper Can. L. J. tral Trust Co. of N. Y., 22 Fed. R. 138; 
 
 240. But see also, concerning and appar- s. c. 22 Fed. R. 272; s. c. 22 Fed. R. 513, 
 
 ently denying the right of unsecured 515. See also Brassey v. New York & 
 
 creditors, Syers v. Brighton Brewery Co., N. E. R. Co., 19 Fed. R. 663. Contra, Hugh 
 
 11 L. T. (n. s.) 560; Mills v. Northern v. McRae, Chase, 466. 
 
 Ry. of Buenos Ayres Co., 23 L. T. (n. s.) 33 Allen v. The Dallas & Wichita R. R. 
 
 719. Co., 3 Woods, 316 ; Tysen v. Wabash It. R, 
 
 29 Lawrence v. The Greenwich Fire Co., 8 Biss. 247. 
 
 Ins. Co., 1 Paige (N. Y.), 587. See also «* Allen v. The Dallas & Wichita R. R. 
 
 Hamilton v. Accessory Transit Co., 26 Co., 3 Woods, 316, 326, per Woods, J. 
 
 Barb. (N. Y.) 46; Murray v. Vanderhilt, 35 Parkhurst v. Kinsman, 2 Blatchford, 
 
 39 Barb. (N.Y.) 140. 78. 
 
 so Wa-ren v. Fake, 49 How. Pr. (N. Y.) 
 430, per Westbrook, J.
 
 546 
 
 RECEIVERS. 
 
 [CHAP. XVII. 
 
 § 241. Rules regulating the Appointment of Receivers. — It has 
 been said, that in order to obtain the appointment of a receiver, 
 the moving party must show, first, either that he has a clear 
 right to the property itself, or that he has some lien upon it, or 
 that the property constitutes a special fund to which he has a 
 right to resort for the satisfaction of his claim ; and, secondly, 
 that the possession of the property by the defendant was obtained 
 by fraud ; or that the property itself, or the income arising from 
 it, is in danger of loss from the neglect, waste, misconduct, or 
 insolvency of the defendant. 1 The appointment of a receiver is 
 always in the discretion 2 of the court, which, however, must be 
 exercised with great circumspection 3 and is subject to review by 
 an appellate court. 4 It has been said, that the appointment can 
 be made only in accordance with the following rules : " 1st. That 
 the power of appointment is a delicate one, and to be exercised 
 with great circumspection. 2d. That it must appear the claim- 
 ant has a title to the property, and the court must be satisfied 
 by affidavit that a receiver is necessary to preserve the property. 
 3d. That there is no case in which the court appoints a receiver 
 merely because the measure can do no harm. 4th. That ' fraud 
 or imminent danger, if the intermediate possession should not 
 be taken by the court, must be clearly proved ; ' and 5thly. That 
 unless the necessity be of the most stringent character, the court 
 will not appoint until the defendant is first heard in response 
 to the application." 5 
 
 § 242. Ancillary Receivers. — An ancillary receiver is a receiver 
 appointed in aid of a receiver appointed by another court. 1 It is 
 usual, through judicial comity, when a receiver has been appointed 
 by one Federal Circuit Court for the others through judicial 
 comity to appoint the same person an ancillary receiver of so 
 much of the same estate as is within their jurisdiction. 2 In such 
 a case the accounting of the receivers, and nearly all proceedings 
 
 § 241. 1 Chancellor Buckner in Mays 
 v. Rose, Freeman's Ch. (Miss.) R. 703, 718. 
 See also Beecher v. Bininger, 7 Blatchf. 
 170 ; Tysen v. The Wabash R. R. Co., 8 
 Biss. 247. 
 
 2 Owen v. Homan, 4 H. L. C. 997, 1032. 
 
 3 Milwaukie & Minn. R. R. Co. v. 
 Soutter, 2 Wall. 521. 
 
 * Tysen v. The Wabash R. R. Co., 8 
 Biss. 247. 
 
 5 Le Grand, C. J., in Bloudheim v. 
 Moore, 11 Md. 365, 374. 
 
 § 242. 1 Jennings v. Phila. & Reading 
 R. R. Co., 23 Fed. R. 569. But see Wil- 
 liams v. Hintermeister, 26 Fed. R. 889; 
 Mercantile Trust Co. v. Kanawha & O. 
 Ry. Co., 39 Fed. R. 337, and § 10. 
 
 2 Jennings v. Ph. & Reading R. R. Co., 
 23 Fed. R. 569 ; Central Trust Co. v. Wa- 
 bash, St. L. & P. Ry. Co., 29 Fed. R. 618.
 
 § 243.] PREFERENCES IN FORECLOSURE SUITS. 347 
 
 affecting the estate, are usually first instituted in the court that 
 first made the appointment. 3 This subject, however, rests in the 
 discretion of the court that has made the ancillary appointment, 
 which has full control over the receiver whom it appointed. 4 In 
 a case where the judges sitting in the Circuit Courts of different 
 districts in the same circuit differed in the instructions given by 
 them to the same person, who had been appointed receiver of 
 the same railroad in each district, the circuit judge refused to 
 interfere. 5 
 
 § 243. Terms upon the Appointment of Receivers, and Prefer- 
 ences in Foreclosure Suits. — As the appointment of a receiver is 
 in its discretion, the court may impose terms upon the party apply- 
 ing for it. Thus, it may insist as a condition precedent to appoint- 
 ing a receiver to manage a colliery that the- moving party advance 
 the funds necessary to continue the business. 1 So, a party or per- 
 son interested in a suit was in England rarely appointed receiver 
 unless he agreed to act without compensation. 2 In a leading case, 
 the Supreme Court laid down the rule as regards the appointment 
 of receivers in suits for the foreclosure of railroad mortgages, as 
 follows: " We have no doubt that when a court of chancery is 
 asked by railroad mortgagees to appoint a receiver of railroad 
 property, pending proceedings for foreclosure, the court, in the 
 exercise of a sound judicial discretion, may, as a condition of 
 issuing the necessary order, impose such terms in reference to 
 the payment from the income during the receivership of out- 
 standing debts for labor, supplies, equipment, or permanent 
 improvement of the mortgaged property as ma} r , under the cir- 
 cumstances of the particular case, appear to be reasonable." 3 
 This is said elsewhere in the case to depend upon the application 
 of the maxim that he who seeks equity must do equity. 4 " We 
 think, also," said the court, " that if no such order is made 
 when the receiver is appointed, and it appears in the progress of 
 the cause that bonded interest has been paid, additional equip- 
 
 8 Jennings v. Pliila. & Reading R. R. § 243. i Gibbs v. David, L. R. 20 Eq. 
 
 Co., 23 Fed. R. 569. 373. 
 
 4 Atkins v. Wabash, St. L. & P. Ry. 2 Wilson v. Greenwood, 1 Swanst. 471. 
 Co., 29 Fed. R. 161 ; Central Trust Co v. 8 Chief Justice Waite in Fosdick v. 
 Texas & St. L. Ry. Co., 22 Fed. R. 135. Schall, 99 U. S. 235, 251, 252. See also 
 But see Parsons v. Charter Oak Life Ins. Turner v. Indianapolis, B. & W. Ry. Co., 
 Co., 31 Fed. R. 305. 8 Biss. 315. Contra, Cue v. N. J. Midland 
 
 5 Cent-al Trust Co. v. Texas & St. L. Ry. Co., 27 N. J. Eq. 37. 
 
 Ry., 22 Fed. R. 135. * Fosdick v. Schall, 99 U. S. 235, 253.
 
 348 RECEIVERS. [CHAP. XVII. 
 
 ment provided, or lasting and valuable improvements made out 
 of earnings which ought in equity to have been employed to 
 keep down debts for labor, supplies, and the like, it is within 
 the power of the court to use the income of the receivership to 
 discharge obligations which, but for the diversion of funds, 
 would have been paid in the ordinary course of business. This, 
 not because the creditors to whom such debts are due have in 
 law a lien upon the mortgaged property or the income, but 
 because, in a sense, the officers of the company are trustees of 
 the earnings for the benefit of the different classes of creditors 
 and the stockholders ; and if they give to one class of creditors 
 that which properly belongs to another, the court may, upon an 
 adjustment of the accounts, so use the income which comes into 
 its own hands as, if practicable, to restore the parties to their 
 original equitable rights. While, ordinarily, this power is con- 
 fined to the appropriation of the income of the receivership 
 and the proceeds of moneyed assets that have been taken from 
 the company, cases may arise where equity will require the use 
 of the proceeds of the sale of the mortgaged property in the 
 same way. Thus it often happens that, in the course of the 
 administration of the cause, the court is called upon to take 
 income which would otherwise be applied to the pa} ? ment of old 
 ■debts for current expenses, and use it to make permanent im- 
 provements on the fixed property, or to buy additional equip- 
 ment. In this way the value of the mortgaged property is not 
 infrequently materially increased. It is not to be supposed that 
 any such use of the income will be directed by the court, without 
 giving the parties in interest an opportunity to be heard against 
 it. Generally, as we know both from observation and experi- 
 ence, all such orders are made at the request of the parties or 
 with their consent. Under such circumstances, it is easy to see 
 that there may sometimes be a propriety in paying back to the 
 income from the proceeds of the sale what is thus again diverted 
 from the current debt fund in order to increase the value of the 
 property sold. The same may sometimes be true in respect to 
 expenditures before the receivership. No fixed and inflexible 
 rule can be laid down for the government of the courts in all 
 cases. Each case will necessarily have its own peculiarities, 
 which must to a greater or less extent influence the Chancellor 
 when he comes to act. The power rests upon the fact, that in
 
 § 243.] PREFERENCES IN FORECLOSURE SUITS. 349 
 
 the administration of the affairs of the company the mortgage 
 creditors have got possession of that which in equity belonged 
 to the whole or a part of the general creditors. Whatever is 
 done, therefore, must be with a view to a restoration by the 
 mortgage creditors of that which they have thus inequitably 
 obtained. It follows that if there has been in realit}- no diver- 
 sion, there can be no restoration ; and that the amount of res- 
 toration should be made to depend upon the amount of the 
 diversion. If, in the exercise of this power, errors are com- 
 mitted, ihej, like others, are open to correction on appeal. All 
 depends upon a proper application of well-settled rules of equity 
 jurisprudence to the facts of the case, as established by the 
 evidence." 5 Ordinarily, claims of this nature are paid out of the 
 earnings of the road, but they are sometimes paid from the pro- 
 ceeds of its sale. 6 This doctrine was extended in a subsequent 
 case where, instead of a sale, the mortgagees sought a decree of 
 strict foreclosure, which was granted saving the rights of inter- 
 veners. 7 The Supreme Court then said again: "As the diversion 
 of the fund created in equity a charge on the property as secu- 
 rity for its restoration, it is clear that if the mortgagees prefer to 
 take the property under a decree of strict foreclosure, they take 
 it subject to the charge in favor of the current debt creditor 
 whose money they have got, and that he can insist on a sale of 
 the property for his benefit if they fail to make the payment 
 without. 8 . . . We do not now hold, any more than we did in 
 Fosdick v. Schall [99 U. S. 235] or Huidekoper v. Locomotive 
 Works, 99 U. S. 258, 260, that the income of a railroad in the 
 bands of a receiver, for the benefit of mortgage creditors who 
 have a lien upon it under their mortgage, can be taken away 
 from them and used to pay the general creditors of the road. 
 All we then decided, and all we now decide, is, that if current 
 earnings are used for the benefit of mortgage creditors before 
 
 6 Chief Justice Waite in Fosdick v. Pittsburgh Bessemer Steel Co., 120 U. S. 
 
 Schall, 99 U. S. 235, 253, 254. See also 649. But see Penn v. Calhoun, 121 U. S. 
 
 Fosdick v. Car Co., 99 U. S. 256 ; Hale v. 251 ; St. Louis, A. & T. H. R. R. Co. v. 
 
 Frost, 99 U. S. 389 ; Miltenberger v. Lo- Cleveland, C. C. & I. Ry. Co., 125 U. S. 
 
 transport Ry. Co., 106 U. S. 286, 308; 658; Wood v. Guarantee Trust & Safe 
 
 Union Trust Co. v. Souther, 107 U. S. 591 ; Deposit Co., 128 U. S. 416. 
 Union Trust Co. v. Walker, 107 U. S. 596 ; 6 Brewer, J., in Blair v. St. Louis, H. & 
 
 Burnham v. Bowen, 111 U. S. 776 ; Blair K. Ry. Co., 22 Fed. R. 471, 474. 
 v. St. Louis, H. & K. Ry. Co., 22 Fed. R. 7 Burnham ». Bowen, 111 U. S. 776. 
 
 471, 474, with a valuable note by Benj. F. 8 Chief Justice Waite in Burnham v. 
 
 Rex, Esq., of the St. Louis bar; Porter v. Bowen, 111 U. S. 776, 782, 783.
 
 350 RECEIVERS. [CHAP. XVIL 
 
 current expenses are paid, the mortgage security is chargeable 
 in equity with the restoration of the fund which has been thus 
 improperly applied to their use." 9 In accordance with these 
 principles, it has become the practice in the seventh circuit to 
 impose as a condition upon the appointment of a receiver in a 
 suit for the foreclosure of a railroad mortgage, that debts for 
 materials and supplies and labor furnished to the mortgagor 
 within the six previous months be paid out of the net income or 
 the proceeds of the sale of the road, before the debt secured by 
 the mortgage. 10 This is called " the six months rule." n Other 
 circuits adopt a similar practice. 12 Three months is a not un- 
 common limitation of time. 13 Claims due eight 14 and eleven 15 
 months before the receivership have been given a preference. 
 And in one case those who advanced money, after a default in 
 interest but two }^ears before the receivership, to pay the arrears 
 of wages due striking laborers, under a promise from the presi- 
 dent of the mortgagor that they would be repaid out of the 
 current earnings of the road, were given a preference. 16 Had 
 security been taken and no such promise been made, no such 
 preference would probably have been given them. 17 A claim 
 for the price of rails furnished a year before the receivership was 
 denied a preference. 18 So was a claim by a contractor for the 
 construction of a part of the road due three years before the 
 appointment of the receiver. 19 The price of gas meters was 
 held not to be a part of the " operating expenses " of a gas 
 company. 20 The claim of a secretary for a balance of salary due 
 him within the prescribed time has been thus preferred. 21 A 
 
 9 Chief Justice Waite in Burnham v. Hale v. Frost, 99 U. S. 389 ; Miltenberger 
 
 Bowen, 111 U. S. 776, 783. v. Logansport Ry. Co., 106 U. S. 286, 308. 
 
 1U In re Kelly v. Receiver of Green Bay 14 Skiddy v. Atlantic, Miss., & Ohio 
 
 & Minn. R. R. Co., 5 Fed. R. 846. See R. R. Co., 3 Hughes, 320. 
 Union Trust Co. v. Souther, 107 U. S. 15 Burnham v. Bowen, 111 U. S. 776. 
 591, 593; Union Trust Co. o. 111. Midland i fi Atkins v. The Petersburg R. R. Co., 
 
 Ry. Co., 117 U. S. 434 ; Blair v. St. Louis, 3 Hughes, 307. 
 H. & K. Ry. Co. 22 Fed. R. 471, 474. 17 Duncan v. Mobile & Ohio R. R. Co., 
 
 11 In re Kelly v. Receiver of Green 2 Woods, 542 ; Addison v. Lewis, 75 Va. 
 Bay & Minn. R. R. Co., 5 Fed. R. 846, 701, 713, 714. 
 
 851, note. 18 Skiddy v. Atlantic, Miss., & Ohio 
 
 12 Atkins v. Petersburg R. R. Co., 3 R. R. Co., 3 Hughes, 320. 
 
 Hughes, 307 ; Blair v. St. Louis, H. & K. 19 Addison v. Lewis, 75 Va. 701, 714, 
 
 Ry. Co., 22 Fed. R. 471, 474 ; Olyphant v. 715. 
 
 St. Louis Ore & Steel Co., 22 Fed. R. » Reyburn v. Consumers' Gas, Fuel, & 
 
 179; Taylor v. Phila. & Reading R. R. Light Co., 29 Fed. R. 561. 
 
 Co., 7 Fed. R. 377. 21 Olyphant v. St. Louis Ore & Steel 
 
 1 3 Fosdick v. Schall, 99 U. S. 235, 238 ; Co., 22 Fed. R. 179. But see Wells v.
 
 § 243.] PREFERENCES IN FORECLOSURE SUITS. 351 
 
 president forfeits any right he may possess to such a preference 
 by publishing in the annual report a statement that his salary 
 has been paid. 22 A debt due an attorney for services performed 
 immediately before the appointment of the receiver lias been 
 preferred under this rule ; 23 but not a debt due for such services, 
 rendered more than a year before the appointment; 24 nor for 
 his payment, at the request of the president of the company, a 
 few weeks before its default, under a promise of reimbursement 
 within a few months, of judgments and other claims against it 
 for wages and injuries to cattle ; 25 nor for his payment as surety 
 upon appeal bonds of judgments against the railroad upon claims 
 two or three years old, although the appeals were taken a few 
 months before the appointment of the receiver and the pay- 
 ment made after that appointment. 26 Preferences have thus 
 been given to claims for fuel, 27 locomotives, 28 cars, 29 reason- 
 able car-rent, 30 car-springs and spirals, 31 repairs, 32 and " limited 
 amounts due other and connecting lines of road for materials 
 and repairs and for unpaid ticket and freight balances, the 
 outcome of indispensable business relations, where a stoppage 
 of the continuance of such business relations would be a prob- 
 able result, in case of non-payment, the general consequence 
 involving largely, also, the interests and accommodation of 
 travel and traffic." 33 Where a balance is due upon the purchase 
 price of cars or locomotives delivered to the railroad company 
 under a contract of conditional sale, and the seller reclaims them 
 or the receiver rejects them, a claim for the value of their use 
 or for the injury done to them while in the possession of the 
 railroad is not entitled to a preference. 34 If, however, the re- 
 ceiver retains them with the assent of the seller, the balance of 
 
 Southern Minn. Ry. Co., 1 Fed. R. 270; 29 Fosdick v. Schall, 99 U. S. 235, 238; 
 
 Addison v. Lewis, 75 Va. 701, 712, 713. Fosdick ». Car Co., 99 U. S. 256 ; Frank 
 
 22 Addison v. Lewis, 75 Va. 701, 713. v. Denver & R. G. Ry. Co., 23 Fed. R. 123. 
 
 23 Blair v. St. Louis, H. & K. Ry. Co. 30 Thomas v. Peoria & R. I. Ry. Co., 36 
 (Norton, Intervenor), 23 Fed. R. 521. Fed. R. 808. 
 
 « Blair v. St. Louis, H. & K. Ry. Co. 31 Hale v. Frost, 99 U. S. 389. 
 
 (Norton, Intervenor), 23 Fed. R. 521. & Fosdick v. Schall, 99 U. S. 235, 238 ; 
 
 25 Blair v. St. Louis, H. & K. Ry. Co. Miltenberger v. Logansport Ry. Co., 106 
 (Norton, Intervenor), 23 Fed. R. 521. U. S. 286, 311. 
 
 26 Blair o. St. Louis, H. & K. Ry. Co. 33 Miltenberger v. Logansport Ry. Co., 
 (Norton, Intervenor), 23 Fed. R. 523. But 106 U. S. 280, 311, per Rlatchford, J. 
 
 see Union Trust Co. v. Morrison, 125 U. 31 Fosdick v. Schall, 99 U. S. 235, 255 ; 
 
 S. 591. Huidekoper v. Locomotive Works, 99 
 
 27 Burnham v. Bowen, 111 U. S. 776. U. S. 258. 
 
 28 Fosdick v. Schall, 99 U. S. 235, 238.
 
 352 RECEIVERS. [CHAP. XVII. 
 
 the purchase money is a preferred claim to that of a prior 
 mortgage, 35 but is inferior to the claims of laborers for services 
 rendered immediately before the appointment of the receiver and 
 subsequently to the delivery of the rolling stock to the com- 
 pany. 36 In one case it was held, that a claim for oil necessary 
 for use in operating a railroad, which was furnished before a 
 default in interest, was inferior to that of the mortgagees ; but 
 that a claimant for such oil furnished since a default in the 
 payment of interest had an equitable lien superior to the 
 mortgagees', when the claimant had accepted a promissory note 
 of the railroad company on account of part of both classes of 
 indebtedness ; which note he surrendered to the receiver upon 
 petitioning for the payment of his claim. 37 Where, before the 
 appointment of a receiver, a bondholder accepted a compromise 
 which scaled down the indebtedness ; in pursuance thereof sur- 
 rendered his bonds and coupons, under an agreement to receive 
 in exchange new bonds secured by a subsequent mortgage ; and 
 did receive new bonds sufficient to replace the greater part of 
 those which he surrendered ; but there were a few for which no 
 new bonds were issued, apparently because no new bonds were 
 issued for so small an amount, — it was held that his unadjusted 
 claim for this balance remained secured by the old mortgage, 
 and was superior to those under the subsequent mortgage given 
 to secure the new bonds. 38 In two cases decided by the same 
 judge a preference was given to claims for injuries to passengers 
 within the prescribed time. 39 Chums for damages by fire to 
 adjoining property caused before the appointment of the receiver 
 have been denied a preference. 40 Where the parties to a fore- 
 closure suit waived a sale, and entered an order by consent 
 leasing the property to another railroad and appointing a re- 
 ceiver of the rent, the court directed that all floating unsecured 
 
 35 Fosdick v. Car Co., 99 U. S. 256 ; & St. L. Ry. Co., 22 Fed. R. 135 ; Dow v. 
 
 Frank v. Denver & R. G. Ry. Co., 23 Memphis & L. R. R. Co., 20 Fed. R. 260, 
 
 Fed. R. 123. 266, 267, Caldwell, J. But see Central 
 
 3 « Frank v. Denver & R. G. Ry. Co., Trust Co. v. East Tenn., V. & G. R. Co., 
 
 23 Fed. R. 123. 30 Fed. R. 895. 
 
 37 Central Trust Co. v. Texas & St. L. 40 In re Dexterville Manuf. & Boom Co. 
 Ry. Co., In re Waters Pierce Oil Co., In- v. Case, 4 Fed. R. 873 ; Hiles v. Case, 14 
 tervenor, 23 Fed. R. 703. Fed. R. 141 ; a. c. 9 Biss. 549. Contra, 
 
 38 Blair v. St. Louis, H. & K. Ry. Co. Dow v. Memphis & L. R. R. Co., 20 Fed. 
 (Greene, Intervenor), 23 Fed. R. 524. 11. 200, 266, 267. 
 
 39 Central Trust Co. of N. Y. v. Texas
 
 § 243.] PREFERENCES IN FORECLOSURE SUITS. 353 
 
 creditors should be paid out of the rent before its application in 
 discharge of the claims of the bondholders. 41 That a creditor 
 for supplies has taken notes of the railroad company extending 
 its time of payment for one month will not prejudice his claim 
 to a preference. 42 Neither will his acceptance of a renewal of 
 these notes after the receiver's appointment. 43 An assignee of a 
 preferred claim has all the rights of his assignor. 44 Where a 
 claim to a preference is made because money was loaned the 
 mortgagor at the request of the bondholders, a request made by 
 all the bondholders must be shown or the preference will be 
 denied. 45 In a recent important suit to foreclose a railroad 
 mortgage, the following order was made. " That all outstanding 
 debts of the said railway company for labor, materials, and sup- 
 plies used in the equipment or permanent improvement of the 
 said railroad, and all outstanding debts for necessary operating 
 and managing expenses thereof in the ordinarjr course of its 
 business, incurred after the first day of September, 1883, shall 
 be allowed by the master as equitable liens, prior in right to the 
 lien of the mortgage sued on, irrespective of statutory liens 
 therefor. And it is further ordered that all such claims accru- 
 ing on open running accounts between said railroad and its cred- 
 itors shall be considered as embraced within this order, if any 
 part of the work was done, materials furnished or expenses 
 incurred after the first day of September, 1883, on subsisting 
 contracts necessary for the continued operation of the road by 
 said receiver ; otherwise the demand will be limited to what 
 accrued subsequent to September first," at which date the de- 
 fault in payment of interest upon the mortgage occurred. 46 
 This order was, subsequently, thus expounded : " The various 
 rulings of the court with respect to betterments and wages, not 
 within the respective times stated, — to wit, six months or other- 
 wise, — have rested upon this distinct proposition : That supplies 
 furnished or services performed under a subsisting contract, to 
 
 41 Farmers' L. & Tr. Co. v. Mo. I. & N. 45 In re Kelly v. Green Bay & Minn. R. 
 Ry. Co., 21 Fed. R. 264. Co., 5 Fed. R. 846. 
 
 42 Burnliam v. Bowen, 111 U. S. 776. 4e Treat, J., in Central Trust Co. v. 
 See also Central Trust Co. v. Texas & Texas & St. L. Ry. Co. 23 Fed. R. 703 ; 
 St. L. Ry. Co., In re Waters Pierce Oil cited and followed by Brewer, J., in Blair 
 Co., Intervenor, 23 Fed. R. 703. v. St. Louis, H. & K Ry. Co., In re Merri- 
 
 4a Burnliam v. Bowen, 111 U. S. 776. wether and others, Intervenors, 23 Fed. R. 
 44 Union Trust Co. v. Walker, 107 U. S. 701, 705. 
 596; Burnham v. Bowen, 111 U. S. 776. 
 
 23
 
 354 RECEIVERS. [CHAP. XVII. 
 
 which and to the continuance of -which the parties were respec- 
 tively bound, and the termination of said contract did not 
 happen except within the time limited ; or when such a continu- 
 ing contract was still in force at the appointment of a receiver, 
 the items of such continuing and subsisting contracts would fall 
 within the prescribed rules. No other demands, independent 
 in their nature, incurred before the prescribed time, are to be 
 treated other than as credits at large. If this ruling is enforced 
 there need be no difficulty with respect to what are called 4 open 
 and current' accounts. Such accounts must be under subsisting 
 contracts, not to be terminated until within the period of time 
 named ; otherwise all items previous to that time must be re- 
 jected. This ruling ma}' be subject to an exception where the 
 local statute gives a lien under a different limitation. In the 
 latter cases difficulties may arise if local decisions are followed, 
 each one of which must depend upon its special facts." 47 It has 
 been held that pending a receivership in a Federal court, where 
 parties are entitled to a lien, and can secure it by proceedings 
 under a State statute, they are not required to go to the 
 expense of such proceedings, but the Federal court will treat 
 it as though all needful steps had been taken to establish the 
 lien ; 48 and that " where like demands are presented from other 
 States in which no statutory lien therefor exists, they shall be 
 entitled to the same status, so that statutory and equitable liens 
 may rest on a like basis." 49 An entry upon the books of the 
 mortgagor showing the claim to be good is, in the absence of 
 suspicious circumstances, prima facie proof. 50 The attorneys of 
 both the receiver and the complainant should have notice of the 
 hearing before a master of such a claim. 51 An order directing a 
 receiver to carry out his corporation's contracts does not neces- 
 sarily give those who claim damages for a breach of those con- 
 tracts a preference over lien-holders. 52 In a recent case, the 
 
 47 Treat. J, as quoted br Brewer, J., in 49 Treat, J., in Blair v. St, Louis, H. & 
 
 Central Trust Co. v. Texas & St. L. Ry. K. R. Co., 19 Fed. R. 861, 862. 
 
 Co., Camden Lumber Co. and others, In- w Blair v. St. Louis, H. & K. R. Co., 19 
 
 tervenors, 23 Fed. R. 673. Fed. R. 861, 862, Treat, J. ; s. c. 22 Fed. 
 
 * s Brewer, J., in Central Trust Co. v. R. 471, 472, Brewer, J. 
 
 Texas & St. L. Ry. Co., Camden Lumber 51 Blair v. St. Louis, HIKE, Co., 19 
 
 Co. and others, Intervenors, 23 Fed. R. Fed. R. 861, 862. 
 
 673, 674, 675 ; Treat, J., in Blair v. St. M Olyphant v. St. Louis Ore & Steel 
 
 Louis, H. & K. R. Co., 19 Fed. R. 861. Co., 28 Fed. R. 729. 
 But see Hassall v. Wilcox, 130 U. S. 493.
 
 § 243.] PREFERENCES IN FORECLOSURE SUITS. 355 
 
 following conditions were inserted in the order appointing a re- 
 ceiver: "(1) That the debts, if any, due from the railroad com- 
 pany for ticket and freight balances ; and for work and labor 
 performed by its employes and laborers; and for supplies and 
 materials furnished for equipping, operating, repairing, or improv- 
 ing the road; and all obligations incurred in the transportation of 
 passengers and freight, or for injuries to person or property, which 
 have accrued within six months last past, — shall be paid by the 
 receiver out of the earnings of the road. (2) That persons 
 having demands or claims of any character against the receiver, 
 may, without applying to this court for leave to do so, bring 
 suit thereon against the - receiver in any court in this state 
 having jurisdiction, or may file their petition and have their 
 claim adjudicated in this court at their election. This clause 
 shall not be construed as authorizing the levy of any writ or 
 process on the property in the hands of the receiver, or taking 
 the same from his custody or possession. (3) That the debts 
 and liabilities of the railroad company which the receiver is 
 ordered to pay, together with all debts and liabilities which said 
 receiver may incur in operating said road shall be paramount 
 and superior to the lien of the mortgages set out in the plaintiff's 
 bill and said lien shall continue until said debts and liabilities 
 are satisfied ; and the discharge of said property from the cus- 
 tody of the receiver shall not affect such lien, or deprive 
 claimants of the opportunity of proving their demands, but said 
 receiver or a successor shall be continued in office for the ad- 
 justment of such demands, and may be sued therefor ; and 
 if said demands are not paid by the person or corporation in 
 possession of said mortgaged property, the court may repos- 
 sess or may decree a sale of the property, as shall seem most 
 expedient. (4) The said plaintiff shall prosecute this suit to 
 final decree as speedily as the same can be done under the 
 rules of equity practice, and failing so to do, the court of its 
 own motion will discharge said property from the custody 
 of the receiver." 53 Whether this doctrine applies to the fore- 
 closure of any except railroad and telegraph mortgages is very 
 doubtful. 64 
 
 63 Caldwell, J., in Dow v. Memphis & L. posit Co., 128 U. S. 416 ; Raht v. Attrill, 
 R. Ry. Co., 20 Fed. R. 260, 266, 267. 106 N. Y. 423; Reyburn v. Consumers' 
 
 64 Wood v. Guarantee Trust & Safe "De- Gas, Fuel & Light Co., 29 Fed. It. 561.
 
 356 RECEIVERS. [CHAP. XVII. 
 
 § 244. Property over which Receivers may be Appointed. — 
 A receiver may be appointed to preserve and take possession of 
 every kind of property, whether the same be what is termed cor- 
 poreal or incorporeal, which can be seized by execution at law or 
 which constitutes equitable assets. 1 Thus receivers have been 
 appointed to collect and hold the profits of a rectory, 2 of a col- 
 lege fellowship, 3 and of the offices of a master forester in a royal 
 forest, 4 and of a county clerk of peace, 5 the tolls of a turnpike ; 6 
 to manage and collect the profits of mines, 7 plantations, 8 a theatre, 9 
 a newspaper, 10 and a railroad; 11 to exercise the right to sell a 
 conditional right of membership in an exchange ; 12 and to take pos- 
 session of the estate of an intestate with power to apply for letters 
 of administration. 13 After the repeal of the charter of the City 
 of Memphis, a receiver was appointed to take possession of all 
 its property which could be subjected to the payment of its 
 debts. 14 In the last-mentioned case, the Supreme Court laid 
 down the following propositions : " 1. Property held for public 
 uses, such as public buildings, streets, squares, parks, promenades, 
 wharves, landing-places, fire-engines, hose and hose-carriages, 
 engine-houses, engineering instruments, and generally everything 
 held for governmental purposes, cannot be subjected to the pay- 
 ment of the debts of the city. Its public character forbids such 
 an appropriation. Upon the repeal of the charter of the city, such 
 property passed under the immediate control of the State, the 
 power once delegated to the city in that behalf having been 
 withdrawn. 2. The private property of individuals within the 
 limits of the territory of the city cannot be subjected to the 
 payment of the debts of the city, except through taxation. 
 
 § 214. i Davis v. Gray, 16 Wall. 203, * Jefferys v. Smith, 1J. & W. 298. 
 
 217 ; Davis v. Duke of Marlborough, 2 8 Morris v. Elme, 1 Ves. Jr. 139. 
 
 Swanst. 108, 127 ; Blanehard v. Caw- 9 Const v. Harris, T. & R. 496, 528. 
 
 thornp, 4 Simons, 566. See Palmer v. 10 Chaplin v. Young, 6 L. T. (n. s.) 97 ; 
 
 Vaughan, 3 Swanst. 173; Meriwether v. Kelly v. Hutton, 17 W. R. 4l'5. 
 
 Garrett, 102 U. S. 472, 501. » Stevens v. Davison, 18 Grat. (Va.) 
 
 -Silver v. Bishop of Norwich, 3 819 ; Davis v. Gray, 16 Wall. 203 ; Bar- 
 
 Swanst. 112; White v. Bishop of Peter- ton ». Barbour., 104 U. S. 126. 
 
 boronsrh, 3 Swanst. 109. 12 p 0W ell v. Waldron, 89 N. Y. 328; 
 
 3 Feistel v. King's College, 10 Eeav. In re Ketchum, 1 Fed. R. 840 ; In re 
 491. Wer.ler, 15 Fed. R. 789; Hyde v. Woods, 
 
 4 Blanehard v. Cawthorne, 4 Simons, 94 U. S. 523 ; Piatt v. Jones, 96 N. Y. 24. 
 560. is n e Mayer, L. R. 3 P. & M. 39. 
 
 ~» Pilnier v. Vaughan, 3 Swanst 173. u Meriwether v. Garrett, 102 U. S. 472, 
 
 6 Knapp v. Williams, 4 Ves. 430, note ; 484. 
 Dumville v. Ashbrooke, 3 Russ. 98, note.
 
 § 244.] PROPERTY OYER WHICH RECEIVERS MAY BE APPOINTED. 357 
 
 The doctrine of some of the States, that such property can 
 be reached directly on execution against the municipality, has 
 not been generally accepted. 3. The power of taxation is 
 legislative, and cannot be exercised otherwise than under the 
 authority of the legislature. 4. Taxes levied according to law 
 before the repeal of the charter other than such as were levied 
 in obedience to the special requirement of contracts entered into 
 under the authority of law, and such as were levied under judicial 
 direction for the payment of judgments recovered against the 
 city, cannot be collected through the instrumentality of a court 
 of chancery at the instance of creditors of the city. Such taxes 
 can only be collected under authority from the legislature. If no 
 such authority exists, the remedy is by appeal to the legislature, 
 which alone can grant relief. Whether taxes levied in obedience 
 to contract obligations, or under judicial direction can be col- 
 lected through a receiver appointed by a court of chancery, if 
 there be no public officer charged with authority from the legis- 
 lature to perform that duty, is not decided, as the case does not 
 require it." 15 In a subsequent case, the Supreme Court held 
 that taxes already levied could in no case be collected through a 
 receiver. 16 Until the passage of a statute allowing it to be done, 
 the English courts held that a receiver could not be appointed 
 to manage a railroad ; 17 but such an appointment is authorized 
 and is very frequent in this country, 18 and even in England a 
 receiver might always be appointed to receive the tolls of a rail- 
 road. 19 A lugubrious picture of the result of such appoint- 
 ments has been drawn by Mr. Justice Miller: "The rapid ab- 
 sorption of the business of the country of every character by 
 corporations, while productive of much good to the public, is 
 beginning also to develop many evils, not the least of which 
 arises from their failure to pay debts and perform the duties 
 which by the terms of their organization they assumed. One of 
 the most efficient remedies for the failure to pay, when it arises 
 
 15 Chief Justice Waite in Meriwether v. 17 Gardner v. London, Chatham, & 
 Garrett, 102 U. S. 472, 501. Upon the first Dover Ry. Co., L. R. 2 Ch. App. 201 ; 
 three propositions the court was unani- Jones on Railroad Securities, § 456. 
 mous. The fourth was decided by a 18 Stevens v. Davison, 18 Grat. (Va.) 
 majority only. See a criticism of this 810; Davis v. Cray, 16 Wall. 203 ; Bar- 
 case by Judge Baxter in Garrett v. City ton v. Barbour, 104 U. S. 126, 137, 138. 
 of Memphis, 5 Fed. R. 860. 19 Hopkins v. Worcester & Birmingham 
 
 16 Thompson v. Allen County, 115 Canal Co., L. R. 6 Eq. 437; Jones on 
 U. S. 550, 558. Railroad Securities, § 456.
 
 358 KECEIVERS. [CHAP. XVII. 
 
 from inability, is to place the corporation in the hands of a 
 receiver, that its affairs may be wound up, its debts discharged, 
 and the remaining assets, if any there be, distributed among its 
 stockholders. Of the beneficial results of this remedy there can 
 be little doubt. When it is applied with despatch, and the 
 effects of the insolvent corporation are faithfully used to meet 
 its liabilities, and its dead body is buried out of sight as soon 
 as possible, no objection can be made to the procedure, and all 
 courts and good citizens should contribute, as far as they may, to 
 this desirable object. In regard, however, to a certain class of 
 corporations, — a class whose operations are as important to the 
 interests of the community and as intimately connected with its 
 business and social habits as any other — the appointment of 
 receivers, as well as the power conferred on them, and the 
 duration of their office, has made a progress which, since it is 
 wholly the work of courts of chancery and not of legislatures, 
 may well suggest a pause for consideration. It will not be 
 necessary to any observing mind to say that I allude to railroad 
 corporations. Of the fifty or more who own or have owned the 
 many thousand miles of railway in my judicial circuit, I think 
 I speak within limits in saying that hardly half a dozen have 
 escaped the hands of the receiver. If these receivers had been 
 appointed to sell the roads, collect the means of the companies, 
 and pay their debts, it might have been well enough. But this 
 was hardly ever done. It is never done now. It is not the pur- 
 pose for which a receiver is appointed. He generally takes the 
 property out of the hands of its owner, operates the road in his 
 own way, with an occasional suggestion from the court, which 
 he recognizes as a sort of partner in the business, sometimes, 
 though very rarely, pays some money on the debts of the cor- 
 poration, but quite as often adds to them, and injures prior 
 creditors by creating a new and superior lien on the property 
 pledged to them." 20 In a recent case, the court refused to 
 appoint a receiver of a disused and independent railroad track 
 in a case where there was a scramble for its possession ; saying 
 in reference to the power to appoint a receiver: "If we should 
 carry this to the extent to which you claim, we should be 
 having this court pushing the doctrine of receivership to the 
 
 20 Barton v. Barbour, 104 U. S. 12G, 107, 138, in the dissenting opinion.
 
 § 245.] POWERS OF RECEIVERS. 359 
 
 extent of making us justices of the peace, and issuing peace 
 warrants." 21 
 
 § 245. Powers of Receivers in general. — The powers of a re- 
 ceiver, in the absence of any special authority given in the order 
 for his appointment, are very limited. He can take possession of 
 the things which he is appointed to receive. 1 If any of it is land 
 under lease he can accept attornment and payment of rent and 
 arrears of rent from the tenants. 2 He can give notice to quit to 
 tenants from year to year, 3 and in States where the remedy by 
 distress still exists, he may distrain for rents not more than one 
 year in arrear. 4 He may also pay out small sums of money in 
 customary repairs of the- property which he holds in trust. 5 
 Otherwise, he can do nothing without the express authority of 
 the court. 6 He cannot sue to recover debts or other property 
 belonging to the estate; 7 nor even, it seems, defend suits or 
 actions brought against him ; 8 nor spend any money whatever 
 which belongs to the estate, except such very small sums as 
 are above referred to, 9 without an order authorizing him to do so. 
 If, however, he does any of these things without leave, and the 
 court determines that the money thus expended has been bene- 
 ficial to the estate, his expenditures for that purpose may be 
 allowed him. 10 Otherwise, lie must make good all loss thereby 
 occasioned. 11 It seems that an unauthorized contract made by 
 him with a stranger may be ratified by an order of the court 
 made before the stranger has given notice of his intention to 
 abandon it. 12 It seems that an order giving a receiver authority 
 to sell carries with it authority to execute and deliver to the pur- 
 chaser a deed; 13 but if not, a subsequent confirmation by the 
 court of a sale irregularly made validates from that time a deed 
 
 21 Brewer and Treat, JJ., in St. Louis, 7 Wynne v. Lord Newborough, 1 Ves. 
 
 K. C. & C. R. R. Co. v. Dewees, 23 Fed. R. Jr. 164 ; s. c. 3 Brown Ch. C. 88 ; Green v. 
 
 619. Winter, 1 J. Ch. (N. Y.) 60. 
 
 § 245. 1 Daniell's Ch. Pr. (2d Am. ed.) 8 Swaby v. Dickon, 5 Simons, 620. 
 
 1087, 1988. 9 Attorney-General v. Vigor, 11 Ves. 
 
 2 Codrington v. Johnstone, 1 Beav. 563. 
 
 520 ; McDonnell v. White, 11 H. L. C. 570. 10 Tempest v. Ord, 2 Meriv. 55 ; Blunt 
 
 3 Doe v. Read, 12 East, 57, 59. v. Clitherow, 6 Ves. 700. 
 
 4 Pitt v. Snowden, 3 Atk. 750; Bran- n Attorney-General v. Vigor, 11 Ves. 
 don v, Brandon, 5 Madd. 473 ; Davis v. 563. 
 
 Gray, 16 Wall. 203, 218. 12 Koontz v. Northern Bank, 16 Wall. 
 
 6 Attorney-General v. Vigor, 11 Ves. 106; Smith v. McCullough, 104 U. S. 25, 
 
 563 ; Daniell's Ch. Pr. (2d Am. ed.) 1000. 29. 
 
 6 Davis v. Gray, 16 Wall. 203, 218; 13 Koontz v. Northern Bank, 16 Wall. 
 
 Smith v. McCullough, 104 U. S. 25, 29. 196, 201.
 
 360 RECEIVERS. [CHAP. XVII. 
 
 previously executed by the receiver. 14 It lias been said that, " a 
 purchaser under a deed from a receiver is not bound to examine 
 all the proceedings in the case in which the receiver is appointed. 
 It is sufficient for him to see that there is a suit in equity, or was 
 one, in which the court appointed a receiver of property; that 
 such receiver was authorized by the court to sell the property ; 
 that a sale was made under such authority ; that the sale was 
 confirmed by the court ; and that the deed accurately recites the 
 property or interest thus sold. If the title of the property was 
 vested in the receiver by an order of the court, it would in that 
 case pass to the purchaser. He is not bound to inquire whether any 
 errors intervened in the action of the court, or irregularities were 
 committed by the receiver in the sale, any more than a purchaser 
 under execution upon a judgment is bound to look into the 
 errors and irregularities of a court on the trial of the case, or of 
 the officer in enforcing its process." 15 An order authorizing a 
 receiver to borrow money to expend in building an unfinished 
 portion of a railroad does not authorize him to contract for muni- 
 cipal aid in such construction. 16 An order authorizing a receiver 
 to make a contract is construed strictly in favor of the estate. 17 
 After the execution of a contract has been authorized by the 
 court, the order will not ordinarily be revoked except in case of 
 fraud. 18 A receiver cannot accomplish by estoppel or waiver 
 what he has no power to do directfy. 19 The court may, however, 
 either in the original order of appointment or subsequently, give 
 a receiver very extensive powers. It is usual in the order ap- 
 pointing a receiver to give him power to bring and defend suits 
 or actions affecting the estate, and to set and let such of it as 
 consists of land. Other and much more extensive authority, 
 such as to borrow money needed for the proper administration 
 of his trust, and issue as security therefor certificates giving 
 their owner a first lien upon the estate ; 20 to contract for the 
 construction of a bridge ; 21 to pay an employee his wages 
 
 14 Koontz v. Northern Bank, 16 Wall. 19 Van Dyck v. McQuade, 85 N. Y. 616. 
 196. But see Central Trust Co. v. Ohio Central 
 
 15 Mr. Justice Field in Koontz v. R. R. Co., 23 Fed. R. 306 ; Armstrong v. 
 Northern Bank, 16 Wall. 196, 202. Armstrong, L. R. 12 Eq. 614 ; Koontz v. 
 
 16 Smith v. McCullough, 104 U. S. 25, 29. Northern Bank, 16 Wall. 196. 
 
 17 Farmers' L. & Tr. Co. v. Logans- -° Wallace v. Loomis, 97 U. S. 146. 
 port, C. & S. W. Ry. Co., 4 Fed. R. 184. See § 247. 
 
 18 Wabash, St. L. & P. Ry. Co. v. Cen- 21 LaCrosse Railroad Bridge, 2 Dill, 
 tral Trust Co., 22 Fed. R. 269. But see 465. 
 
 Weeks v. Weeks, 10G N. Y. 626.
 
 § 246.] POWERS OF RECEIVERS OF RAILROADS. 361 
 
 during the time that he is kept from work by the result of an 
 injury received while at work for the receiver, without con- 
 tributory negligence, but for which the receiver is not responsi- 
 ble; 22 and in Ireland, to spend money in relieving and giving 
 employment to poor tenants, for the reason that they may be 
 enabled in the future to pay their rent more regularly, 23 — have 
 been given to receivers. The order appointing a receiver of 
 land usually contains a clause empowering him to set and let 
 the same. 24 Even with this, it seems, that without special 
 authority he cannot let any part thereof so as to bind the estate 
 for a longer period of time than is authorized by the Statute of 
 Frauds; 25 but that a lease made for a longer time would bind a 
 tenant who had accepted it. 2G It is doubtful whether a receiver 
 has the right to use a patent under a license given the person 
 over whose estate he was appointed. 27 
 
 § 246. Powers of Receivers of Railroads. — Very extensive 
 powers are often granted to the receivers of railroads. 1 The 
 Supreme Court has said of them, " In the progress and growth 
 of equity jurisdiction it has become usual to clothe such officers 
 with much larger powers than were formerly conferred. In 
 some of the States they are by statutes charged with the duty 
 of settling the affairs of certain corporations when insolvent, 
 and are authorized expressly to sue in their own names. It is 
 not unusual for courts of equity to put them in charge of the 
 railroads of companies which have fallen into financial embar- 
 rassment, and to require them to operate such roads, until the 
 difficulties are removed, or such arrangements are made that the 
 roads can be sold with the least sacrifice of the interests of those 
 concerned. In all such cases the receiver is the right arm of 
 the jurisdiction invoked. As regards the statutes, we see no 
 reason why a court of equity, in the exercise of its undoubted 
 authority, may not accomplish all the best results intended to be 
 secured by such legislation, without its aid." 2 And in a care- 
 fully considered opinion, Mr. Justice Bradley said : " It may be 
 
 22 Missouri Pac. Ry. Co. v. Texas & P. 27 Compare Montross v. Mabie, 30 Fed. 
 Ry. Co., 33 Fed. R. 701. R. 234, with Curran v. Craig, 22 Fed. R. 
 
 23 Jackson i\ Jackson, 2 Hogan, 238. 101. 
 
 » Daniell's Ch. Pr. (2d Am. ed.) 1989. § 246. » Davis v. Gray, 16 Wall. 203, 
 
 25 Kerr on Receivers (2d Am. ed.) 210, 219, 220; Cowdrey v. Railroad Co., 1 
 
 211. Woods, 331, 336. 
 88 Dancer o. Hastings, 4 Bingham, 2; 2 Mr. Justice Swayne in Davis v. Gray, 
 
 Kerr on Receivers (2d Am. ed.) 211. 10 Wall. 203, 219, 220.
 
 362 RECEIVERS. [CHAP. XVII. 
 
 laid down as a general proposition that all outlays made by the 
 receiver in good faith, in the ordinary course with a view to 
 advance and promote the business of the road, and to render it 
 profitable and successful are fairly within the line of discretion 
 which is necessarily allowed to a receiver entrusted with the 
 management and operation of a railroad in his hands. His 
 duties, and the discretion with which he is invested are very 
 different from those of a passive receiver, appointed merely to 
 collect and hold monej's due on prior transactions, or rents ac- 
 cruing from houses and lands. And to such outlaj's in ordinary 
 course, may properly be referred, not only the keeping of the 
 road, buildings and rolling stock in repair, but also the provid- 
 ing of such additional accommodations, stock and instrumen- 
 talities as the necessities of the business may require, always 
 referring to the court, or to the master appointed in that behalf, 
 for advice and authority in any matter of importance, which may 
 require a considerable outlay of money in lump. And except 
 in extraordinary cases, the submission by the receiver of his 
 accounts to the master at frequent intervals, whereby the latter 
 may ascertain from time to time the character of the expendi- 
 tures made, and disallow whatever may not meet with his 
 approval, will be regarded as a sufficient reference to the court 
 for its ratification of the receiver's proceedings. In extra- 
 ordinary cases, involving a large outlay of money, the receiver 
 should always apply to the court in advance and obtain his 
 authority for the purchase or improvement proposed." 3 This 
 language has been thus construed in a case in a State court: 
 " This rule, it will be observed, simply prescribes what expendi- 
 tures, out of the fund in his hands as receiver, the court will 
 recognize as legitimate and proper when the receiver comes to 
 account for the administration of his trust, but nothing here said 
 gives the slightest support to the notion that the receiver may, 
 in virtue of the power of his office, make a contract, without the 
 authority of the court, which will bind the trust, or which the 
 court will be bound to recognize without regard to its necessity 
 or propriety. A receiver may, undoubtedly, appropriate moneys 
 in his hands belonging to the trust, to such purposes, connected 
 with the trust, as he may think proper, always taking the risk 
 that the court will finally approve his action, but he has no 
 3 Cowdrey v. Railroad Co., 1 Woods, 331, 33G. 

 
 § 246.] POWERS OF RECEIVERS OF RAILROADS. 363 
 
 authority to bind the trust by contract without the authority of 
 the court. Until his contracts are approved or ratified by the 
 court, the court is at liberty to deal with them as to it shall 
 appear to be just, and may either modify them, or disregard 
 them entirely. This, in my judgment, is the only safe rule 
 which can be adopted." 4 A loan to a receiver whom the court 
 has not authorized to borrow money will be denied priority. 
 It has been held that the court has power to authorize the 
 receiver of a railroad company under proceedings for a fore- 
 closure, to ratify a contract previously made by the corporation 
 giving a telegraph company certain privileges upon its road, 
 and that the contract thus ratified will be binding upon pur- 
 chasers of the railroad at a foreclosure sale. 6 A receiver may 
 be authorized to complete the construction of a line of railroad, 
 and to borrow money for that purpose. 7 A receiver of a railroad 
 may be authorized to purchase a lien upon part of its property, 
 and to assume a lease of a connecting railway. 8 The rules which 
 should regulate a receivership of a consolidated railroad holding 
 leased lines with separate mortgages upon the different branches, 
 as well as a general mortgage upon the whole system, have been 
 recently stated and applied in an opinion of Judge Brewer, deliv- 
 ered when denying an application by a receiver of such a system 
 of railroads for leave to reject such leased roads as were unprofit- 
 able : " This Wabash road is composed of many subdivisions. 
 While it is a single corporation to-day, yet into it have passed 
 many corporations, and many separate railroad properties. In 
 administering such a consolidated property, the court must look 
 at, not merely the interest of the mortgagee in this general mort- 
 gage, or of the mortgagor as a single entity or corporation, but also 
 the separate and sometimes conflicting interests of the various 
 subdivisions and their respective incumbrances ; and, back of 
 all that, the duty which every railroad corporation owes to the 
 
 * Van Fleet, V.C., Chancellor Runyon, 104 U. S. 25; Allen v. The Dallas & 
 
 concurring, Lehigh Coal & Navigation Co. Wichita R. R. Co., 3 Woods, 316. 
 
 v. Central R. R. of N. J., 35 N. J. Eq. 426, s Farmers' Loan & Trust Co. v. Bur- 
 
 429. To a similar effect is Union Trust lington & S. W. Ry. Co., 32 Fed. R. 805. 
 
 Co. v. 111. Midland Ry. Co., 117 U. S. 434. See also Central Trust Co. v. Wabash, 
 
 6 Union Trust Co. v. 111. Midland Ry. St L. & P. Ry. Co., Gilman Intervenor, 
 Co., 117 U. S. 434, 477. 34 Fed. R. 259 ; Central Trust Co. v. 
 
 W. U. Tel. Co. v. Atlantic & Pacific Wabash, St. L. & P. Ry. Co., 23 Fed. R. 
 
 Tel. Co., 7 Biss. 367. 863; Easton v. Houston & T. C Ry. Co., 
 
 7 Kennedy v. St. Paul & P. Ry. Co , 2 38 Fed. R. 784. 
 Dill. 448. See also Smith v. McCullough,
 
 364 RECEIVERS. [CHAP. XVII. 
 
 public. For underlying the rule which the supreme court has 
 laid down in respect to the payment, by receivers when they 
 take possession of the railroad property, of prior unsecured 
 debts recently accrued, runs the thought, as expressed by the 
 supreme court, that a railroad corporation owes a duty to the 
 public which has given it its franchise and enabled it to con- 
 struct its road ; the duty of operating that road for the benefit 
 of the public. While that may not be what you call an absolute 
 duty, enforceable under all circumstances, it is still a duty to be 
 regarded and enforced by the courts when they take possession 
 of railroads through their officers. And that duty is not limited 
 to the operation of merely that particular fragment of a road 
 which is pecuniarily profitable in its operations, but it extends 
 to the road as an entirety, and to all its branches — all its parts ; 
 differing in that particular from the duty which would rest upon 
 the court if it had simply taken possession of property used 
 for private purposes, manufacturing or otherwise, where the 
 single question might well be said to be one of pecuniary profit. 
 This Wabash road, as a system, was in operation, a going con- 
 cern, from one end to the other ; as such, discharging its duties 
 as best it could to its various creditors. This court, at the 
 instance of the corporation, and to preserve the integrity of the 
 system, took possession of it by its receivers. It took possession 
 of it as a going concern, and, so far as is reasonable and practi- 
 cable, it should continue it as a going concern until it surrenders 
 it to whoever may be the purchasers or future holders of it. 
 With that preface, and calling these separate branches which 
 have passed into this consolidated road, subdivisions; since 
 some have passed in by way of lease and others by way of 
 consolidation, subject to separate mortgages, we pass orders sub- 
 stantially as follows : The first is one which has already been 
 entered, and we simply emphasize it by repeating it, that sub- 
 divisional accounts must be kept separately. That was an or- 
 der passed by Brother Treat at the very outset of this receiver- 
 ship, in order that the particular equities of each one of these 
 divisions as between themselves, might be ascertained. 2. Where 
 any subdivision earns a surplus over expenses, the rental or 
 subdivisional interest will be paid to the extent of the surplus, 
 and only to the extent of the surplus. Any part diversion of 
 such surplus for general operating expenses will be made good
 
 § 247] receivers' certificates. 365 
 
 at once, and, if need be, by the issue of receivers' certificates. . . . 
 3. Where a subdivision earns no surplus, simply pays operating 
 expenses, no rental or subdivision al interest will be paid. If 
 the lessor or the subdivisional mortgagee desires possession or 
 foreclosure, he may proceed at once to assert his rights. While 
 the court will continue to operate such subdivision until some 
 application be made, yet the right of a lessor or mortgagee whose 
 rent or interest is unpaid to insist upon possession or foreclosure 
 will be promptly recognized. That, it is true, may work a dis- 
 ruption of the system, as evidenced by the movement just made 
 in respect to this Cairo division ; but the proceeding for disrup- 
 tion will come from the subdivisions. The court is not slough- 
 ing off branches, tearing the system in two; but the disruption, 
 if it comes, will come from those who seek separation, and have 
 a legal right so to do. 4. Where a subdivision not only earns no 
 surplus, but fails to pay operating expenses, as in the St. Joseph 
 & St. Louis branch, the operation of the subdivision will be 
 continued, but the extent of that operation will be reduced with 
 an unsparing though a discriminating hand ; that is, if a subdi- 
 vision does not earn operating expenses, and the receivers are 
 running two trains a day, then lop one of them off. If they are 
 running one train a day, and still it does not pay, then run one 
 train in two days. While the court will endeavor to keep that 
 subdivision in operation, it will make the burden of it to the 
 consolidated corporation, and to all the other interests put into 
 that consolidated corporation a minimum." 9 
 
 § 247. Receivers' Certificates. — Where it is absolutely neces- 
 sary to raise money for the preservation of the property in his 
 hands, a receiver may be empowered by the court to issue certi- 
 ficates which give their owners a lien upon the property prior 
 to that held by any persons except those whose claims are para- 
 mount to the rights of the parties to the suit. 1 Such certificates 
 are usually issued only in suits for the foreclosure of railroad 
 or telegraph mortgages, in order to raise money for repairs, or to 
 
 9 Brewer, J., Treat, J., concurring ; in 286 ; Stanton v. Ala. & Chattanooga It}-. 
 
 Central Trust Co. v. Wabash, St. L. & P. Co., 2 Woods. 506 ; Kennedy v. St. Paul 
 
 lly. Co., 23 Fed. R. 863, 865-867. & P. R. R. Co., 2 Dill. 448; Hoover v. 
 
 §247. 1 Meyer v. Johnston, 53 Ala. Montclair& Greenwood Lake R. R. Co., 29 
 
 237 ; Jerome v. McCarter, 94 U. S. 734 ; N. J. Eq. 4 ; Coe v. N. J. Midland Ry. Co., 
 
 Wallace v. Loomis, 97 U. S. 146 ; Milten- 27 N. J. Eq. 37 ; Union Trust Co. v. Illi- 
 
 bcrger v. Logansport Ry. Co., 106 U. S. nois Midland Ry. Co , 117 U. S. 434.
 
 366 EECEIVEES. [CHAP. XVII. 
 
 defray operating expenses, 2 or to discharge claims having an 
 equitable preference to that of the party at whose instance the 
 receiver was appointed, 2 or to restore to the rightful owners so 
 much of the income as the receiver has improperly applied to the 
 foregoing purposes. 4 In a few cases, receivers have been author- 
 ized thus to borrow money in order to complete the construction 
 of railroads, and save from forfeiture land grants and municipal 
 subscriptions. 5 Certificates have been issued to pay interest upon 
 a divisional mortgage prior to that to foreclose which the suit 
 was brought. 6 Where the net earnings of a railroad are sufficient 
 to defray current expenses, the court will not authorize the issue 
 of receivers' certificates merely for the sake of paying interest 
 upon the mortgage under foreclosure. 7 It has been said to be 
 doubtful whether the court has the power to authorize a receiver 
 to issue car-trust certificates secured by a lien upon the cars 
 which are thus bought, and payable in ten annual instalments. 8 
 The power of courts of equity to issue receivers' certificates is 
 of modern origin, 9 has been severely criticised, 10 and should be 
 exercised with great reluctance. 11 A judge who had never 
 authorized the issue of a receiver's certificate, said : " When the 
 road cannot be kept running without its exercise, except to a 
 limited extent, the safe and sound practice is to discharge the 
 receiver or stop running the road and speed the foreclosure." n 
 Without leave from the court, a receiver has no power to pledge 
 
 2 Jerome v. McCarter, 94 U. S. 734 ; 8 Taylor v. Phila. & Reading R. R. Co., 
 Wallace v. Loomis, 97 U. S. 146; Milten- 9 Fed. R. 1. 
 
 herger v. Logansport Ry. Co., 106 U. S. 9 Meyer v. Johnston, 53 Ala. 237 ; Coe 
 
 286. v. N. J. Midland Ry. Co., 27 N. J. Eq. 37 ; 
 
 3 Miltenberger i\ Logansport Ry. Co., Hoover v. Montclair & Greenwood Lake 
 106 U. S. 286 ; Taylor v. Phila. & Read- Ry. Co., 29 N. J. Eq. 4 ; Jerome v. Mc- 
 ing R. R. Co., 7 Fed. R. 377 ; Skiddy v. Carter, 94 U. S. 734; Wallace v. Loomis, 
 Atlantic, M. & 0. R. R. Co., 3 Hughes, 97 U. S. 146. 
 
 320. 10 Barton v. Barbour, 104 U. S. 126, 
 
 4 Central Trust Co. v. Wabash, St. L. 138; Credit Co. of London v. Arkansas 
 & P. Ry. Co., 23 Fed. R. 863. Cent. R. R. Co., 15 Fed. R. 46. 
 
 5 Kennedy v. St. Paul & P. R. R. Co., « Wallace v. Loomis, 97 U. S. 146, 
 2 Dill. 448 ; Miltenberger v. Logansport 163; Shaw v. Railroad Co., 100 U. S. 
 Ry. Co., 106 U. S. 286, 294. 295. See also 605, 612 ; Taylor v. Phila. & Reading 
 Smith v. McCullough, 104 U. S. 25, 29. R. R. Co., 9 Fed. R. 1 ; Credit Co. of 
 But see Investment Co. v. Ohio & N. W. London v. Arkansas Cent. R. R. Co., 15 
 R. Co., 36 Fed. R, 48. Fed. R. 46. 
 
 6 Skiddy v. Atlantic, Miss., & O. R. R. 12 Caldwell, J., in Credit Co. of London 
 Co., 3 Hughes, 320, 341. v. Arkansas Cent. R. R. Co, 15 Fed. R. 
 
 7 Taylor v. Phila. & Reading R. R Co., 46, 49. 
 9 Fed. R. 1.
 
 § 247.] RECEIVERS' CERTIFICATES. 367 
 
 the trust estate, nor to make a contract for a loan of money 
 which will bind the estate 13 or even the proposed lender. 14 An 
 order for the issue of receivers' certificates is usually granted 
 only upon notice to all parties in interest. 15 Those who have 
 not received notice may move to set aside the order and to 
 cancel the certificates, if they act as soon as they learn what was 
 done. 16 A very short delay after knowledge that such an order 
 has been granted will estop a party from objecting to the validity 
 of certificates issued in pursuance of it. 17 Receivers' certificates 
 are assignable, but not negotiable. 18 It has been said that the 
 power to issue them is a personal one which the receiver cannot 
 delegate. 19 Where a receiver issued a certificate to a person 
 named therein as payee, for negotiation and sale, and the latter 
 never paid over any money on account of it ; a purchaser of the 
 certificate at much less than par, who was unable to prove that 
 the person from whom he bought it had paid anything therefor to 
 the person named as payee, was not allowed to receive anything 
 from the receiver on account of the same. 20 The purchaser at a 
 judicial sale made subject to the payment of receivers' certificates 
 cannot contest their validity. 21 A receiver is personally respon- 
 sible for a fraudulent statement in a certificate which he issues. 22 
 In at least one case, the court ordered the receiver to execute 
 a mortgage to secure the receivers' certificates. 23 But, ordinarily, 
 the order for the issue of the certificates provides that they shall 
 constitute a lien upon the property superior to all prior incum- 
 brances, which is sufficient. 24 In one case the order simply stated 
 that the certificates should be payable out of the income of the 
 property, and " be provided for by this court in its final order in 
 
 « Union Trust Co. v. 111. Midland Ry. Co., 95 111. 134 ; Stanton v. Ala. & C. R. R. 
 
 Co., 117 U. S. 4:34. Co., 2 Woods, 506 ; Central Nat, Bank v. 
 
 14 Smith v. MeCulIough, 104 U. S. 25, Hazard, 30 Fed. R. 484. 
 29. 19 Union Trust Co. of N. Y. v. Chicago 
 
 " Ex parte Mitchell, 12 S. C. 83. But & Lake Huron R. R. Co., 7 Fed. R. 513. 
 see Miltenberger v. Logansport Ry. Co., 2) Union Trust Co. of N. Y. v. Chicago & 
 
 100 U. S. 280, 297, 298. Lake Huron R. R. Co., 7 Fed. R. 513. 
 
 16 Hervey v. 111. Midland Ry. Co., 28 21 Central Nat. Bank v. Hazard, 30 Fed. 
 Fed. R. 169. R. 484. 
 
 17 Miltenberger v. Logansport Ry. Co., 22 Bank of Montreal v. Thayer, 7 Fed. 
 106 U. S. 286 ; Union Trust Co. v. 111. R. 622. 
 
 Midland Ry. Co., 117 U. S. 434. 23 Jerome v. McCarter, 04 U. S. 734. 
 
 18 Union Trust Co. of N. Y. v. Chicago 24 For a good form of an order and a 
 & Lake Huron R. R. Co., 7 Fed. R. 513 ; certificate, see Kennedy v. St. Paul & P. 
 Stanton v. Ala. & C. R. R. Co., 31 Fed. R. R. R. Co., 2 Dill. 448. 
 
 685 ; Turner v. Peoria & Springfield R. R.
 
 368 RECEIVERS. [CHAP. XVII. 
 
 said cause, unless paid by the receiver out of the income of said 
 road as aforesaid." 25 A receiver appointed in a suit for the fore- 
 closure of a second railroad mortgage may be authorized to issue 
 certificates constituting a prior lien to that of the first mortgage, 
 provided the mortgagor is in default as to that, and the first mort- 
 gagee is a party to the suit. 26 An order authorizing the issue of 
 receivers' certificates is appealable to the Supreme Court of the 
 United States. 27 
 
 § 248. Advice to Receivers. — Receivers may apply to the court 
 for instructions and advice, both generally and in particular 
 cases. 1 " The value of such advice depends : If there are 
 parties in interest, and they have their day in court, the advice 
 may be decisive. But if the matter is ex parte the value of the 
 advice depends largely upon the information and ability of the 
 judge, and is probably binding only on the receivers, for the judge 
 may change his mind on hearing full argument." 2 It has been 
 said, that from the nature of things the court cannot determine 
 how many trains a receiver shall run, 3 or select his employees, 4 
 although it may regulate his treatment of them. 5 The court has, 
 however, at a receiver's request, instructed him what rates to 
 charge; 6 and has directed him not to obey so much of a State 
 statute as forbade a less charge for transport over that part of a 
 railroad which competed with transportation by water, than 
 over other parts of the same length, the traffic upon which was 
 not affected by such competition, in a case where it was held 
 that the charter of the corporation gave it a contract right 
 to charge a reasonable rate, upon the ground of the unconsti- 
 tutionality of the statute ; and this when the petition for instruc- 
 tions was filed a month before the act went into operation. 7 
 When a railroad was in the hands of a receiver appointed in 
 a suit to foreclose a mortgage, the court refused to entertain 
 
 25 Miltenberger v. Logansport Ry. Co., 2 Missouri Pac. Ry. Co. v. Texas & P. 
 106 U. S. 286, 298. Ry. Co., 31 Fed. R. 862. 
 
 26 Miltenberger v. Logansport Ry. Co., 3 Brewer, J , Treat, J. concurring, in 
 106 U. S. 286. Central Trust Co. v. Wabash, St. L. & 
 
 2 " Farmers' Loan & Trust Co., Peti- P. Ry. Co., 23 Fed. R. 863, 867. 
 tioner, 129 U. S. 206. * Brewer, J. in Frank v. Denver & 
 
 § 248. i Frank v. Denver & R. G. Ry. R. G. Ry. Co., 23 Fed. R. 757, 764. 
 Co., 2.3 Fed. R. 757 ; Ex parte Koehler, » Frank v. Denver & R. G. Ry. Co., 23 
 
 23 Fed. R. 523; Missouri Pacific Ry. Fed. R. 757, 764. 
 
 Co. ». Texas & Pacific Ry. Co., 31 Fed. 6 Ex parte Koehler, 23 Fed. R. 529. 
 
 R. 862. 7 Ex parte Koehler, 23 Fed. R. 529.
 
 § 249.] LITIGATION BY RECEIVERS. 3G9 
 
 a petition by the mortgagor asking instructions as to the pro- 
 priety of postponing a meeting of its stockholders, and permission 
 to postpone the meeting. 8 
 
 § 249. Litigation by Receivers. — The causes of action which 
 a receiver can enforce are of two kinds, — those which belonged 
 to the estate of which he has charge before it was entrusted 
 to him, and those which have accrued since his appointment. 
 As has been said before, he cannot sue upon either without the 
 leave of the court which appointed him. 1 A suit upon a cause 
 of action which belonged to the estate before his appointment is 
 brought in the name of the legal owner of the estate ; 2 unless, 
 as is not uncommon, the order authorizes the receiver to sue in 
 his own name. 3 In the former case, the person whose name 
 is used is indemnified out of the fund for all costs to which he 
 is thereby made liable. 4 Receivers of corporations are usually 
 authorized to sue in the name of the corporation. 5 Costs recov- 
 ered against a receiver in an action brought by him in his offi- 
 cial capacity, are entitled upon the distribution of the fund to a 
 priority over claims that existed against it before the receiver's 
 appointment. 6 In the conduct of litigation, as in every other pro- 
 ceeding by him, a receiver is under the constant supervision of 
 the court. 7 He is not bound by a stipulation which is not ad- 
 vantageous to the estate, made by himself or his counsel without 
 the sanction of the court. 8 He cannot waive a defense, whether 
 technical or substantial. 9 He may be allowed to discontinue 
 without costs an action honestly but erroneously begun by him. 10 
 The rights of a receiver are in general no greater than those of 
 the person whose estate he holds. 11 Thus, a receiver of an insol- 
 
 8 Taylor v. Phila. & Reading R. R. Co., 6 Camp v. Receivers of the Niagara 
 
 7 Fed. R. 377. Bank, 2 Paige (N. Y.), 283; Columbian 
 
 § 249. 1 Wynne v. Lord Newborough, Ins. Co. v. Stevens, 37 N. Y. 536 ; Locke 
 
 1 Ves. Jr. 164 ; s. c. 3 Brown Ch. C. 88; v. Covert, 42 Hun (49 N. Y.S. C R.), 484. 
 
 Green v. Winter, 1 J. Ch. (N. Y.) 60. 7 Van Dyck v. McQuade, 85 N. Y. 616. 
 
 2 Dick v. Struthers, 25 Fed. R. 103 ; 8 Van Dyck v. McQuade, 85 N. Y. 616. 
 Dick i'. Oil- Well Supply Co., 25 Fed. R. 9 McEvers v. Lawrence, Hoffman Ch. 
 105; Daniell's Ch. Pr. (2d Am. ed.) 1977, (N. Y.) 172; Keiley v. Dusenbury, 10 J. & 
 1991. S. (N. Y. Superior Ct.) 238 ; s. c. 77 N. Y. 
 
 3 Davis v. Gray, 16 Wall. 203. See 597; Van Dyck v. McQuade, 85 N. Y. 616. 
 Frankle v. Jackson, 30 Fed. R. 398. 10 St. John v. Denison, 9 How. Pr. (N.Y.) 
 
 4 Daniell's Ch. Pr. (2d Am. ed.) 1991. 343; Reeder v. Seely, 4 Cowen. 548; Ar- 
 
 5 Frankle ». Jackson, 30 Fed. R. 398; noux v. Steinbrenner, 1 Paige (N. Y.), 82. 
 Davis v. Gray, 16 Wall. 203 ; Harland v. n Jacohson v. Allen, 12 Fed. R. 454, 457. 
 Bankers' & Merchants' Tel. Co., 33 Fed. But see Hart r». Barney & S. Manuf. Co., 
 R. 199. 7 Fed. R. 543. 
 
 24
 
 370 RECEIVERS. [CHAP. XVII. 
 
 vent corporation appointed in a creditor's suit cannot " enforce 
 a collateral obligation given to a creditor or to a body of credit- 
 ors by a third person for the payment of the debts of the insol- 
 vent ; " 12 for example, a statutory liability of stockholders to 
 creditors. 13 It has, however, been said: "It is the settled doc- 
 trine that the receiver of an insolvent corporation represents not 
 only the corporation but also creditors and stockholders, and that 
 in his character as trustee for the latter, he may disaffirm and 
 maintain an action as receiver to set aside illegal or fraudulent 
 transfers of the property of the corporation made by its agents 
 or officers, or to recover its funds or securities invested or mis- 
 applied." u The defendant to an action by the receiver of an 
 insolvent's estate cannot set off claims against the insolvent 
 which have been assigned to him since the application for the 
 receiver's appointment. 15 A receiver has no absolute right to sue 
 in the courts of a sovereignty foreign to that from which he holds 
 his authority. 16 He may sue in a foreign court upon a judg- 
 ment which he has recovered in the court which appointed 
 him. 17 By comity he is usually allowed to sue in a foreign 
 court, 18 unless by so doing he would interfere with a preference 
 given to domestic creditors by the laws or public policy of the 
 State wherein he brings the action. 19 In this respect, it seems, 
 that a court of the State within which a Federal court is held 
 is considered as foreign to the latter, at least when sitting in 
 bankruptcy. 20 A substituted trustee can, however, sue in a 
 foreign jurisdiction, even though, when the court appointed him, 
 it required him to give a bond and to account to itself in the 
 same manner as a receiver. 21 It has been said, that " where 
 
 12 Wallace, J., in Jacobson v. Allen, 12 v. Durant, 19 Fed. R. 471, 476 ; Holmes v. 
 Fed. R. 454. Sherwood, 16 Fed. R. 725; s. c. 8 McCra- 
 
 13 Jacobson v. Allen, 12 Fed. R. 454. ry, 405. 
 
 14 Andrews, J., in Attorney-General v. 17 Wilkinson v. Culver, 25 Fed. R. 639. 
 Guardian Mutual Life Ins. Co., 77 N. Y. 18 Ex parte Norwood, 3 Biss. 504; Hunt 
 272, 275. See also Gillet v. Moody, 3 N. Y. v. Jackson, 5 Blatcbf . 349 ; Cuykendall v. 
 479, 488 ; Talmage v. Pell, 7 N. Y. 328 ; Miles, 10 Fed. R. 342 ; Hurd v. Elizabeth, 
 Whittlesey v. Delaney, 73 N. Y. 571; 41 N. J. Law (12 Vroom), 1; Bank v. 
 National Trust Co. v. Miller, 33 N. J. Eq. McLeod, 38 Ohio St. 174. But see Booth 
 155, 158; Jacobson v. Allen, 12 Fed. R. v. Clark, 17 How. 322; Holmes v. Sher- 
 454, 455. wood, 16 Fed. R. 725. 
 
 » /„ re Van Allen, 37 Barb. (N.Y.) 225, 19 Booth v. Clark, 17 How. 322 ; Brig- 
 
 231 ; Van Dyck v. McQuade, 85 N.Y. 616. ham v. Luddington, 12 Blatcbf. 237 ; 
 
 is Booth v. Clark, 17 How. 322 ; Brig- Olney v. Tanner, 10 Fed. R. 101. 
 
 ham v. Luddington, 12 Blatcbf. 237 ; 29 Olney v. Tanner, 10 Fed. R. 101. 
 
 Oluey v. Tanner, 10 Fed. R. 101 ; Hazard 2 i Glenn v. Soule, 22 Fed. R. 417 ;
 
 § 249.] LITIGATION BY RECEIVERS. 371 
 
 property, in the possession of a third person, is claimed by the 
 receiver, the complainant must make such person a party by 
 amending the bill, or the receiver must proceed against him 
 by suit in the ordinary way." <22 Otherwise, a receiver is espe- 
 cially favored in the enforcement of causes of action arising after 
 his appointment. He can, upon motion or petition in the suit 
 wherein he is appointed, obtain injunctions to prevent disobedi- 
 ence to contracts made with him, 23 or prevent interference with 
 property in his possession, 24 whether the person enjoined is a 
 party to the suit or not. In nearly every case interference with 
 a receiver in the discharge of his duties is a contempt of court, 
 even when no injunction expressly forbidding it has been issued. 25 
 For example, striking laborers have been adjudged guilty of 
 contempt for attempting to prevent employees of a receiver of 
 a railroad from working for him. 26 In one of these cases it was 
 eaid : " If the testimony makes it clear that when these parties 
 went in such numbers, and conducted themselves in such a way, 
 that while they simply said, ' Please get off this engine,' or ' We 
 want you to get off this engine,' they intended to overawe, — 
 intended, by the demonstrations which they made, to impress 
 upon the minds of the engineers and train-men that personal 
 prudence compelled them to leave, — why, then the government 
 has made out its case. As my brother Treat said in a similar 
 case, 27 that we had before us in St. Louis, a request, under these 
 circumstances, is a threat. Every sensible man knows what it 
 means, and courts are bound to look at things just as they are, 
 to pass upon facts just as they are developed, to treat the conduct 
 of men just as it is, and to impute to them that intention which 
 their acts and their conduct disclose was their intention," ^ 
 And in another case the same judge said: "Now, if a party 
 engaged in a lawful undertaking unintentionally interferes with 
 some of the officers of this court, and obstructs them in the dis- 
 
 Holmes v. Sherwood, 16 Fed. R. 725; 8. c. ™ Thompson v. Scott, 4 Dill. 508; 
 
 o McCrary, 405. Davis v. Gray, 16 Wall. 203, 218. 
 
 '-- Mr. Justice Swayne in Davis v. 2 « Secor v. Toledo, P. & W. R. R. Co., 7 
 
 Gray, 16 Wall. 203, 218, citing Parker v. Biss. 513; King v. Ohio & M. Ry. Co., 7 
 
 Browning, 8 Paige (N. Y.), 388; Noe v. Biss. 529; In reDoolittle, 23 Fed. R. 544; 
 
 Gibson, 7 Paige (N. Y.), 513. United States v. Kane, 23 Fed. R. 748; 
 
 23 Walton v. Johnson, 15 Simons, 352. In re Higgins, 27 Fed. R. 443. 
 
 2 * Angel v. Smith, 9 Ves. 335 ; Kerr on 2; In re Doolittle, 23 Fed. R. 544, 548. 
 Receivers (2d American edition), 177- 28 Brewer, J., in United States v. Kane, 
 
 181. 23 Fed. R. 748,751.
 
 372 RECEIVERS. [CHAP. XVII. 
 
 charge of their duties, this court is not tenacious of any mere 
 prerogative, and would let such action pass almost without 
 notice ; but where parties are engaged in that which is of itself 
 unlawful, in doing that which they have no right to do, and in so 
 doing obstruct the officers of the court although intending no 
 contempt, that is a very different thing." ^ 
 
 § 250. Duties of Receivers. — A receiver holds the property of 
 which he is given the care in trust for all persons interested 
 therein, whether parties to the suit or not, 1 provided that they 
 do not claim it by a title paramount to his own. 2 His duties, 
 therefore, are substantially those of a trustee, although his pow- 
 ers are usually more limited ; and the decisions concerning the 
 duties and liabilities of trustees, executors, administrators, and 
 assignees in bankruptcy and insolvency are often of service in 
 determining those of a receiver. 3 A receiver's first duty after 
 his appointment is to take possession of the property entrusted 
 him by the order, using all the powers therein given him. 4 If 
 any of it is under lease he should notify the tenants of his ap- 
 pointment and demand that they attorn to him. 5 It seems that 
 as soon as he has obtained possession of all the estate that con- 
 sists of personal property he should make an inventory thereof. 6 
 All moneys that he receives he should either pay into court or 
 deposit in a bank to the credit of himself as receiver, in a sepa- 
 rate account from that for his private deposits. 7 In remitting 
 money from one place to another, he may do so by using the 
 ordinary means, provided that he uses due care. 8 He will be 
 personally liable for all loss to the estate caused by his making 
 any other disposition of the funds collected by him. 9 It is ad- 
 visable for a receiver to take a receipt for all sums of money 
 exceeding twenty dollars paid out by him. By so doing, and 
 
 29 Brewer, J., In re Doolittle, 23 Fed. R. 6 Lewin on Trusts (6th ed., London, 
 
 644, 547. 1875), 184 ; England v. Downs, 6 Beav. 
 
 § 250. * Davis v. Gray, 16 Wall. 203, 269. See also Williamson v. Wilson, 1 
 
 217, 218; Central Trust Co. v. Wabash, Bland (Mil.), 418, 436. 
 
 St. L. & P. Ry. Co., 23 Fed. R. 863. ' Salway v. Salway, 4 Russ. 60 ; 8. c. 
 
 2 Davis v. The Duke of Marlborough, 2 R. & M. 215; Wren v. Kirton, 11 Ves. 
 2 Swanst. 108, 118, 137, 138; Georgia v. 377 ; Hinckley v. Railroad Co., 100 U. S. 
 Atlantic & Gulf R. R. Co., 3 Woods, 434. 153, 157. 
 
 3 See, for example. Commonwealth v. 8 Knight v. Lord Plimouth, 3 Atk.480; 
 Franklin Ins. Co., 115 Mass. 278 ; People s. c. 1 Dickens, 120. 
 
 v. National Trust Co., 82 N. Y. 283. 9 Salway t-. Salway, 4 Russ. 60 ; s. c 
 
 * Daniell's Ch. Pr. (2d Am. ed.) 1087. 2 R. & M 215; Rowth v. Howell, 3 Ves. 
 6 Daniell's Ch. Pr. (2d Am. ed.) 1987. 665.
 
 § 250.] DUTIES OF RECEIVERS. 373 
 
 by using such receipts as vouchers, he will have less difficulty 
 in passing his accounts. 10 A receiver should so keep the estate 
 in his hands that it can be easily traced, delivered up, or ac- 
 counted fur. 11 He should, at least as often as once a year, 
 account and pay into court all the money which he has received, 
 together with the profits thereof, less all necessary or author- 
 ized expenditures, and such compensation as the court allows 
 him. 12 If he receives a considerable sum of money during the in- 
 terval between the regular times for his accounting, it seems that 
 he should apply to the court for directions concerning its invest- 
 ment ; 13 and in general, he should apply for instructions when- 
 ever any unexpected event occurs of which advantage may be 
 taken for the benefit of the estate, or which necessitates active 
 measures to preserve the estate from loss. 14 Any profit which 
 lie may make from the estate belongs to the finally successful 
 party, or to him to whom the surplus, after the payment of prior 
 demands, is finally directed to be paid. 15 And if he uses the 
 property over which he has been appointed in his private busi- 
 ness he must pay to the estate for its use. 16 It is usually con- 
 sidered improper for a receiver to retain as his counsel one who 
 has previously acted in the suit for one of the parties. 17 But it 
 is proper for a receiver appointed in a suit brought by a creditor 
 for the satisfaction of his own debt alone, to retain the attorney 
 of the complainant. 18 In one case, the court refused to allow the 
 receiver to retain a relative who had previously practised else- 
 where, and had come into the circuit apparently for the purpose 
 of acting as counsel for the receiver. 19 A receiver of a railroad 
 is a common carrier, 20 guilty of impropriety, for which he may 
 be removed, when he discriminates between different persons 
 
 lu Rcmsen v. Remsen, 2 J. Ch. (N. Y.) v. Hicks, 3 Atk. 274; Earl of Lonsdale v. 
 
 495, 501. Church, 3 Brown Ch. C. 41. 
 
 ii Williamson y. Wilson, 1 Bland (Md.), 1 5 Gibbs v. David, L. R. 20 Eq. 373. 
 
 18 ; Hinckley v. Railroad Co., 100 U. S. But see Whitesides v. Lafferty, 3 Humph. 
 
 153, 157 ; Attorney-General v. North (Tenn.) 150. 
 
 American Life Ins. Co., 89 N. Y. 94, 107, i 6 Battaile v. Fisher, 36 Miss. 321. 
 
 108. 17 Ryckmanv. Parkins, 5 Paige (N. Y.), 
 
 12 Daniell's Ch. Pr. (2d Am. ed.) 1992 ; 543 ; Blair v. St. Louis, II. & K. R. R. Co., 
 Shaw v. Rhodes, 2 Russell, 539. See 20 Fed. R. 348. 
 
 § 256. 18 Shainwald v. Lewis, 8 Fed. R. 878. 
 
 13 Shaw ». Rhodes, 2 Russ. 539 ; Hicks 19 Blair v. St. Louis, H. & K. R. R. Co., 
 v. Hicks, 3 Atk. 274 ; Earl of Lonsdale v. 20 Fed. R. 348. 
 
 Church, 3 Brown Ch. C. 41. 2° Beers v. Wabash, St. L. & P. Ry. 
 
 14 Shaw v. Rhodes, 2 Russ. 539; Hicks Co., 34 Fed. R. 244.
 
 374 RECEIVERS. [CHAP. XVII. 
 
 who use the railway. 21 A receiver cannot resign without the 
 permission of the court which appointed him. 22 A recent statute 
 provides " that whenever in any cause pending in any court of 
 the United States, there shall be a receiver or manager in pos- 
 session of any property, such receiver or manager shall manage 
 and operate such property according to the requirements of the 
 valid laws of the State in which such property shall be situated, 
 in the same manner that the owner or possessor thereof would 
 be bound to do if in possession thereof. Any receiver or man- 
 ager who shall wilfully violate the provisions of this section 
 shall be deemed guilty of a misdemeanor, and shall on conviction 
 thereof be punished by a fine not exceeding three thousand dol- 
 lars, or by imprisonment not exceeding one year, or by both said 
 punishments, in the discretion of the court." 23 
 
 § 251. Liability of a Receiver. — The liabilities of a receiver are, 
 in many respects, analogous to those of a trustee. He is liable 
 to all persons interested in the estate in his hands for any dam- 
 age resulting to them from any breach of duty by him, whether 
 intentionally 1 or through negligence. 2 He is, however, free 
 from liability to the parties to the suit on account of any act 
 performed in obedience to an order of the court within its juris- 
 diction, and not obtained by fraud, until the same has been 
 vacated npon appeal or otherwise. 3 A receiver's liability to 
 strangers is much more limited than that of a trustee. 4 He is 
 not liable personally upon a covenant entered into in his official 
 capacity with the sanction of the court. 5 A few cases seem, 
 however, to imply that by retaining the possession for the use of 
 the estate of property held under a lease, he would become per- 
 sonally liable for the rent, where he had made no agreement 
 to retain possession of the premises under the authority of the 
 court. 6 A receiver, even when acting as a common carrier, is 
 
 21 Handy v. Cleveland & M. R. R. Co., 8 Holcombe v. Johnson, 27 Minn. 353. 
 
 31 Fed. R. 689. 4 See Taylor v. Davis, 110 U. S. 330, 
 
 SB Daniell's Ch. Pr. (2d Am. ed.) 2002. 335. 
 
 See In the Matter of Jones, 4 Sandford's 5 Livingston v. Pettigrew, 7 Lansing 
 
 (Ch. N. Y.) 615. (N. Y.), 405; Newman v. Davenport, 9 
 
 23 25 St. at L. ch. 866, § 2, p. 436 ; 24 Baxter (Tenn.), 538 ; Taylor v. Davis, 110 
 
 St. at L. ch. 373, § 2, p. 554. U. S. 330, 335 ; Central Trust Co. v. 
 
 § 251. » Knight v. Lord Plimouth, 3 Wabash, St. L. & P. Ry. Co., 34 Fed. R. 
 
 Atk. 480, 481 ; Kaiser i>. Kellar, 21 Iowa, 259. 
 
 95, 97 ; Koontz v. Northern Bank, 16 6 Commonwealth v. Franklin Ins. Co., 
 
 Wall. 196, 202, 203. 115 Mass. 278 ; People v. National Trust 
 
 2 Skerretts' Minors, 2 Hog. 192. Co., 82 N. Y. 283 ; People v. Universal
 
 § 251.] LIABILITY OF A RECEIVER. 375 
 
 not liable personally for injuries caused by the negligence of his 
 employees, when he exercised reasonable care in their selection. 7 
 The only remedy of the person thus aggrieved is by an action 
 against the receiver in his official capacity, seeking satisfaction 
 out of the estate. 8 When the receiver has been discharged and 
 the estate sold, or returned to its owner, he has no remedy ex- 
 cept against the employee, unless one has been preserved for him 
 by the court ; 9 for the owner of the property is not liable for the 
 negligence of the receiver's employees. 10 For this reason it is 
 customary to insert in the order for the sale in bulk of prop- 
 erty in the possession of a receiver, that the purchaser shall take 
 it subject to all claims for injuries caused while it was managed 
 by the receiver. 11 Such a provision, although not mentioned in 
 the order for the sale, may be inserted as a condition in the 
 order confirming the sale, and the purchaser, after taking posses- 
 sion under the latter order, is estopped from disputing the valid- 
 ity of the condition. 12 Such claims are enforced in the suit in 
 which the receiver was appointed. 13 By the former practice, fol- 
 lowing the old chancery rule, a receiver could not be sued with- 
 out the permission of the court that appointed him. 14 Such an 
 order was revocable, and might have been conditional. 15 A re- 
 cent statute changes this as follows: " Every receiver or manager 
 of any property appointed by any court of the United States 
 may be sued in respect of any act or transaction of his in carry- 
 ing on the business connected with such property, without the 
 previous leave of the court in which such receiver or manager was 
 appointed ; but such suit shall be subject to the general equity 
 
 Life Ins. Co., 30 Hun, (37 N. Y. S. C. R), Fed. R. 537 ; Union Trust Co. v. C. & L. H. 
 
 142. But see Central Trust Co. v. Ry. Co., 7 Fed. R. 513, 516. 
 
 Wabash, St. L. & P. Ry. Co., 34 Fed. R. 9 Davis v. Duncan, 19 Fed. R. 477 ; 
 
 259, 269; Brown v. Toledo, P. & W. R. White v. Keokuk & D. M. Ry. Co., 62 
 
 Co., 35 Fed. R. 444 ; Easton ». Houston Iowa, 97. 
 
 & T. C. Ry. Co., 38 Fed. R. 784. 10 Davis v. Duncan, 19 Fed. R. 477. 
 
 7 Kennedy v. I. C. & L. R. Co., 3 Fed. " Farmers' L. &Tr Co. v. Central R. R. 
 R. 97; Union Trust Co. v. Chicago & L. of Iowa, 2 McCrary, 181 ; 8. c. 7 Fed. R. 
 H. Ry. Co., 7 Fed. R. 513, 516; Davis v. 537; s. c. subsequently considered, 17 Fed. 
 Duncan, 19 Fed. R. 477 ; Farmers' L. & R. 758. 
 
 Tr. Co. v. Central Railroad of Iowa, v - Farmers' L. & Tr. Co. v. Central R. R. 
 
 2 McCrary, 181 ; s. c. 7 Fed. R. 537. of Iowa, 17 Fed. R. 758. 
 
 See, however, Kain v. Smith, 80 N. Y. 13 Farmers' L. & Tr. Co. v. Central R. R. 
 
 458. of Iowa, 17 Fed. R. 758. 
 
 8 Kennedy v. I. C. & L. R. Co., 3 Fed. M Barton v. Barbour, 101 U. S. 126. 
 
 R. 97 ; Farmers' L. & Tr. Co. v. Central 16 Central Trust Co. v. Wabash, St. L. 
 R. R. of Iowa, 2 McCrary, 181 ; s. c. 7 & P. Ry. Co., 26 Fed. R. 74.
 
 376 RECEIVERS. [CHAP. XVII. 
 
 jurisdiction of the court in which such receiver or manager was 
 appointed, so far as the same shall be necessary to the ends of 
 justice." 16 A judgment in a, suit thus prosecuted can only be 
 collected out of the property in the hands of the receiver in his 
 official capacity. 17 A receiver is personally liable to strangers 
 for trespass, 18 fraud, 19 or other wilful act, although performed 
 under color of his office. So, if he by mistake, though honestly, 
 takes possession of the property of another, he is personally 
 liable. 20 The fact that he does so under authority of an order of 
 the court will not justify him as against a person who was not a 
 party to the suit or proceeding in which the order was granted. 21 
 In all of such cases it seems that he can, independently of the 
 statute, be sued without leave of the court which appointed him. 22 
 But when a receiver of a State court was sued in a Federal court 
 for an infringement of a patent, in obedience to an order of the 
 State court the Federal court stayed its proceedings, to allow time 
 for an application to the State court to modify its order. 23 A per- 
 son who, without having been lawfully appointed, assumes to act 
 as a receiver, has all the liabilities of one duly appointed. 24 The 
 discharge of a receiver until revoked relieves him from all lia- 
 bility to those who had an opportunity to be heard upon the 
 motion for his discharge. 25 
 
 § 252. Manner of applying for the Appointment of a Receiver. — 
 It has been said that a court has no jurisdiction to appoint a 
 receiver, unless a cause is pending ; 1 and that, therefore, one will 
 never be appointed upon petition 2 when no suit has been begun, 
 except in the case of lunatics. 3 The grounds of the exception 
 and the reasons why it does not extend to infants 4 are not very 
 
 i« 25 St. at L., ch. 866, § 3, p. 436; Craig, 22 Fed. R. 201. But see Aston v. 
 24 St. at L. ch. 373, § 3, p. 554. Heron, 2 Myl. & K. 390 ; Chalie v. Picker- 
 
 17 Farmers' L. & Tr. Co v. Central R. R. ing, 1 Keen, 749. 
 
 of Iowa, 2 McCrary, 181 ; 3. c. 7 Fed. R. 23 Curran v. Craig, 22 Fed. R. 101. 
 
 537 ; Barton v. Barbour, 104 TJ. S. 126. 24 Wood v. Wood, 4 Russ. 558. 
 
 18 In re Young, 7 Fed. R. 855 ; Olney v. » Lehman v. McQuown, 31 Fed. R. 
 Tanner, 10 Fed. R. 101; Barton v. Bar- 138; Davis v. Duncan, 19 Fed. R. 477. 
 bour, 104 U. S. 126, 134. § 252. » Anon., 1 Atk. 578. See § 260. 
 
 19 Bank of Montreal v. Thayer, 7 Fed. 2 Anon, 1 Atk. 578 ; Ex parte Whit, 
 R. 622. field, 2 Atk. 315; Merchants' & M. Na- 
 
 20 Barton i\ Barbour, 104 U. S. 126, 134; tional Bank v. Kent Circuit Judge, 43 
 Curran v. Craig, 22 Fed. R. 101. Mich. 292. 
 
 21 Curran v. Craig. 22 Fed. R. 101. 8 Ex parte Radcliffe, 1 J. & W. 639; 
 
 22 Barton v. Barbour, 104 U. S. 126, 134 ; Anon., 1 Atk. 578 ; Ex parte Warren, 
 In re Young, 7 Fed. R. 855 ; Bank of Mon- 10 Ves. 622. 
 
 treal v. Thayer, 7 Fed. R. 622; Curran v. * Ex parte Whitfield, 2 Atk. 315. 

 
 § 252.] MANNER OF APPLYING FOR APPOINTMENT OF RECEIVER. 377 
 
 clear. After a suit has been begun, however, a receiver may be 
 appointed at any stage of it when a necessity is shown, — before 
 appearance, 5 between appearance and answer, 6 between answer and 
 decree," at the decree, 8 or afterwards, if the cause is still open. 9 
 But a case of pressing necessity must exist to justify the appoint- 
 ment of a receiver before answer. 10 An objection to the bill on 
 account of multifariousness or a misjoinder of parties will not 
 prevent the appointment of a receiver ; nor will the pendency of 
 a motion for leave to amend the bill, 11 unless indeed the proposed 
 amendment would change materially the allegations showing 
 the necessity for a receiver. The bill should lay the foundation 
 for the appointment by stating the facts which show its necessity 
 and propriety, 12 and should contain a prayer for a receiver. 13 If, 
 however, a state of facts subsequently arise making the appoint- 
 ment necessary, it may probably be made without an amendment 
 of the original or the filing of a supplemental bill. 14 The appli- 
 cation for a receiver should be supported by evidence showing 
 that the appointment is necessary. 16 If the application is made 
 before decree, the affidavits should be founded upon the allega- 
 tions in the bill. 16 If statements not founded on allegations in 
 the bill and alleging facts which existed and were known before 
 the bill was filed, are introduced into the affidavits, it seems that 
 the court will not attend to them ; 17 and even if, where the case 
 made by the bill fails, sufficient ground for a receiver is confessed 
 in the answer, it seems that a receiver would be denied the plain- 
 tiff, at least until he had amended his bill. 18 After an application 
 for a receiver has been once denied, a second application supported 
 
 5 Tanfield v. Irvine, 2 Ttuss. 149. (N. Y.), 438. But see Hottenstein v. Con- 
 
 6 Vann v. Barnett, 2 Brown Ch. C. 158 ; rad, 9 Kan. 435. 
 
 Metcalfe v. Pulvertoft, 1 V. & B. 180. 13 Rule 21. But see Osborne v. Harvey, 
 
 I Kershaw v. Mathews, 1 Russ. 361. 1 Y. & C. N. R. 116. 
 
 8 Osborne v. Harvey, 1 Y. & C. N. R. 14 Malcolm v. Montgomery, 2 Molloy, 
 116. 500; Hottenstein v. Conrad, 9 Kan 435. 
 
 9 Cooke v. Gwyn, 3 Atk. 689 ; Attor- 15 Middleton v. DodsweU, 13 Ves. 266 ; 
 ney-General v. Mayor of Gal way, 1 Mol- Kerr on Receivers (2d Am. ed.), 154. 
 loy, 95 ; Bowman v. Bell, 14 Simons, 392. 1G Dawson v. Yates, 1 Beav. 301, 306 ; 
 
 10 Latham v. Chafee, 7 Fed. R. 525. Cremen v. Hawkes, 2 Jones & LaT. 
 See Uuion Mut. Life Ins. Co. v. Union 674 ; Kerr on Receivers (2d Am. ed.), 154. 
 Mills Plaster Co., 37 Fed. R. 287. " Dawson v. Yates, 1 Beav. 301, 306; 
 
 II Barnard v. Darling, 1 Barb. Ch. Kerr on Receivers (2d Am. ed ), 151. 
 (N. Y.) TO. 18 Cremen v. Hawkes, 2 Jones & LaT. 
 
 12 Tomlinson v. Ward, 2 Conn. 396; 674; Kerr on Receivers (2d Am. ed.), 
 
 Verplanck v. Mercantile Ins. Co., 2 Paige 154.
 
 378 RECEIVERS. [CHAP. XVII. 
 
 by the same papers will rarely be granted. 19 The former rule was 
 that, after answer, a plaintiff when moving for a receiver could 
 only rely upon the admissions in the answer ; ^ but now a sworn 
 answer is given upon such a motion little more effect than an 
 ordinary affidavit, and may be contradicted by affidavits in sup- 
 port of the bill.' 21 The appointment is usually only made upon 
 notice, and is very rarely granted ex parte."* 2 Less than one 
 day's notice has been held to be insufficient. 23 A receiver may, 
 however, be appointed ex parte, if that is the only way to pre- 
 serve the property from destruction or serious injury, or removal 
 beyond the jurisdiction of the court. 24 It has been said that a 
 receiver of the assets of a railroad company will rarely be ap- 
 pointed in a suit to which no stockholders or bondholders are 
 actually parties. 25 Where the officer of a corporation who had 
 been served with notice of a motion for the appointment of a 
 receiver fraudulently concealed that fact from his associates, and 
 did not oppose the motion, although no collusion with the plaintiff 
 was shown, a motion to vacate the appointment was entertained. 20 
 A delay of one month after knowledge of the appointment of a 
 receiver, who had expended iu the improvement of the property 
 money furnished him by others, was held such acquiescence as to 
 estop a party from moving to vacate the order of appointment 
 for irregularity because granted without notice to him. 27 Except 
 in an extraordinary case, a receiver will not be appointed over 
 property in the possession of a stranger to the suit. 28 
 
 § 253. "Who may apply for the Appointment of a Receiver. — 
 A receiver is usually appointed upon the application of the 
 plaintiff. Before a decree it seems that one defendant cannot 
 move for a receiver, 1 unless he has filed a cross-bill praying for 
 
 19 Fenton v. Lumberman's Bank, Clarke 481 ; Johns v. Johns, 23 Ga. 31 ; Triebert v. 
 
 Ch. (N. Y.) 360. Burgess, 11 Aid. 452; Gibbins v. Main- 
 
 23 Daniell's Ch. Pr. (2d Am. ed.) 1976. waring, 9 Simons, 77; Miltenberger v. 
 
 See Goodman v. Whitcomb, 1 J. & W. Logansport Ry. Co., 106 U. S. 286. 
 
 689; Kershaw v. Mathews, 1 Russ. 361. 2i Overton v. Memphis & L. R. R. Co., 
 
 21 Allen v. The Dallas & Wichita R. R. 10 Fed. R. 866. But see Central Trust Co. 
 Co., 3 Woods, 316, 332. v. Texas & St. L. Ry. Co., 24 Fed. R. 153. 
 
 22 Blondheim v. Moore, 11 Md. 365 ; » Allen v. The Dallas & Wichita R. R. 
 People v. Norton, 1 Paige (N. Y.) 17 ; Co., 3 Woods, 316. 
 
 Sandford v. Sinclair, 8 Paige (N. Y. ), 373 ; « Allen v. The Dallas & Wichita R. R. 
 
 Miltenberger v. Logansport Ry. Co., 106 Co., 3 Woods, 316. 
 
 U. S. 286. ^ Searles v. The Jacksonville, Pensa- 
 
 23 St. Louis, K. C. & C. Ry. Co. v. cola, & Mobile R. R. Co., 2 W r oods, 621. 
 Dewees, 23 Fed. R. 691. See also Davis v. Gray, 16 Wall. 203, 218. 
 
 24 Gibson v. Martin, 8 Paige (N. Y.), §253. 1 Robinson'y. Hadley, 11 Beav.
 
 § 255.] WHO SHOULD BE APPOINTED KECEIYER. 379 
 
 one. 2 After a decree, however, he may, in a proper case, obtain a 
 receiver of the property of a co-defendant upon petition, 3 but not 
 usually over the property of the plaintiff without a cross-bill. 4 
 
 § 254. Manner of the Appointment of a Receiver. — By the Eng- 
 lish practice, which was followed in New York before the passage 
 of statutes altering it, when an application for the appointment of 
 a receiver was granted, the selection of the receiver was referred 
 to a master in chancery, whose action was subject to the con- 
 firmation of the court. 1 The same master usually exercised 
 supervision over contracts made by the receiver and the adjust- 
 ment of his compensation. 2 In the Federal courts, however, it 
 is the customary practice for the judge to appoint and often to 
 supervise a receiver himself, without the aid of a master, except 
 when the accounts are passed. 3 
 
 § 255. Who should be appointed Receiver. — As a general rule 
 no one should be appointed receiver of property who has any 
 interest therein, 1 or is in any way connected with the litigation 
 in the course of which the appointment is made, 2 or is nearly 
 related to, 3 or is in the employ of any of the parties thereto, 4 or 
 who, if he should receive the appointment, would occupy two 
 inconsistent positions; 5 nor a person who is not familiar with 
 the management of similar property, 6 and able to give sufficient 
 attention to the management of his trust. 7 Thus a stockholder, 8 
 
 614 ; Leddel's Ex'r v. Starr, 19 N. J. Eq. Frank v. Denver & R. G. Ry. Co., 23 
 
 (4 C. E. Green) 159. But see Sargant v. Fed. R. 757. But see Taylor v. Phila. & 
 
 Read, L. R. 1 Ch. D. 600 ; Henshaw v. Reading R. R. Co., 7 Fed. R. 377 ; s. c. 
 
 Wells, 9 Humph. (Tenn.) 568. 9 Fed. R. 1 ; Cowdrey v. Railroad Co., 1 
 
 2 Grote v. Bury, 1 W. R. 92 ; Robinson Woods, 331, 341. 
 
 v. Hadley, 11 Beav. 614 ; Kerr on Receiv- § 255. x Wiswell v. Starr, 48 Me. 401. 
 
 ers (2d Am. ed.), 153, 154. 2 Baker v. Backus, 32 111. 79; Gar- 
 
 » Barlow v. Gains, 8 Beav. 329; Hiles land v. Garland, 2 Ves. Jr. 137. 
 
 v. Moore, 15 Beav. 175; Kerr on Receiv- 3 Williamson v. Wilson, 1 Bland (Md.), 
 
 ers ('2d Am. ed.), 154. 418. 
 
 * Grote v. Bury, 1 W. R. 92 ; Robin- 4 Baker v. Backus, 32 111. 79 ; Attor- 
 
 son v. Hadley, 11 Beav. 614; Kerr on ney-General v. Bank of Columbia, 1 Pa isje 
 
 Receivers (2d Am. ed.), 153, 154. (N. Y.), 511 ; Buck v. Piedmont & Arling- 
 
 § 254. l Crcuze v. Bishop of London, ton Life Ins. Co., 4 Fed. R. 849. 
 
 Dickens, 687; Thomas v. Dawkin, 1 Ves. 6 Stone v. Wishart, 2 Madd. 64; Ex 
 
 Jr. 452 ; In re Eagle Iron Works, 8 Paige parte Fletcher, 6 Ves. 427. 
 
 (N. Y.) 385; High on Receivers, §90; 6 Lupton v. Stephenson, 11 Ir. Eq. 
 
 Danicll's Ch. Pr. (2d Am. ed.) PJ76. 484. 
 
 2 Thornhiil v. Thornhill, 14 Simons, 7 Wynne v. Lord Newborough, 15 Ves. 
 600. 283 ; Gibbs v. David, L. R. 20 Eq. 373. 
 
 3 MUtenberger v. Logansport Ry. Co., 8 Wiswell v. Starr, 48 Me. 401 ; Atkins 
 106 U. S. 286 ; Buck v. Piedmont & Ar- v. Wabash, St. L. & P. Ry. Co., 29 Fed. R 
 lington Life Ins. Co., 4 Fed. R. 849; 101.
 
 380 RECEIVERS. [CHAP. XVII. 
 
 officer, or director 9 of a corporation will very rarely be appointed 
 a receiver of its assets ; nor a party, 10 or solicitor, 11 or the son 
 or brother of a party 12 to a cause over property which is the sub- 
 ject of the litigation. Nor should the next friend of an infant, 
 whose duty it is to protect his interest, be appointed receiver 
 over his estate ; 13 nor an active trustee over the trust estate ; 14 
 although a mere dry trustee may be thus appointed. 15 Nor 
 should a master in chancery, whose duty it is to pass receivers' 
 accounts be appointed a receiver ; 16 nor should a solicitor who 
 does not understand the management of machinery, be appointed 
 receiver over a manufacturing establishment. 17 Nor should a 
 person be appointed receiver who lives at a great distance from 
 the estate over which a receiver is desired, and is actively 
 engaged in another employment. 18 It has also been said in 
 England, "that the Receiver-general of Taxes for a county can- 
 not be appointed a Receiver; for having given, as such, security 
 to the crown, if he were to become indebted to the crown and to 
 the estate, the crown might, by its prerogative process, sweep 
 away all his property." 19 And Lord Eldon held that a peer could 
 not be a receiver, because, " in many instances, a Receiver may be 
 committed." 20 The court may, however, under very special cir- 
 cumstances appoint as receiver a trustee, 21 or a person interested 
 in the subject of the suit 22 or even a party to the suit, 23 or his near 
 relation. 24 This, however, will not be done unless by consent, 
 or possibly when it clearly appears to be for the interest of all 
 
 9 Attorney-General v. Bank of Colum- " Daniell's Ch. Pr. (2d Am. ed.) 1073. 
 
 bia, 1 Paige (N. Y.), 511 ; Buck v. Pied- See Attorney-General v. Day, 2 Madd. 
 
 aaont & Arlington Life Ins. Co., 4 Fed. R. 246, 254. 
 
 849 ; Atkins v. Wabash, St. L. & P. Ry. 20 Attorney-General v. Gee, 2 V. & B. 
 
 Co., 29 Fed. R. 161 ; Baker v. Backus, 32 208. 
 
 111. 79. 21 Sykes v. Hastings, 11 Ves. 363 ; Sut- 
 
 10 Wilson v. Greenwood, 1 Swanst. 471. ton v. Jones, 15 Ves. 584 ; Gardner v. 
 
 11 Baker v. Backus, 32 111. 79 ; Garland Blane, 1 Hare, 381 ; Povvys v. Blagrave, 
 v. Garland, 2 Ves. Jr. 137. 18 Jur. 463 ; Ames v. Birkenhead Docks, 
 
 i 2 Williamsons Wilson, 1 Bland (Md.), 20 Beav. 332 ; Potts v. Warwick & Bir- 
 
 418; Taylor v. Oldham, Jac. 527. But mingham Canal Nav. Co., Kay, 143; 
 
 see Shainwald v. Lewis, 8 Fed. R. 878. Kerr on Receivers (2d Am. ed.), 130- 
 
 13 Stone v. Wishart, 2 Madd. 64. 139. 
 
 14 Sutton v. Jones, 15 Ves. 584 ; v. 22 Hoffman v. Duncan, 18 Jur. 69 ; 
 
 Jolland, 8 Ves. 72. Powys v. Blagrave, 18 Jur. 462 ; Kerr on 
 
 15 Sutton v. Jones, 15 Ves. 584. Receivers (2d Am. ed.), 136. 
 
 16 Ex parte Fletcher, 6 Ves. 427. 28 Wilson v. Greenwood, 1 Swanst. 471 ; 
 
 17 Lupton v. Stephenson, 11 Ir. Eq. 484. Blakeney v. Dufaur, 15 Beav. 40. 
 
 18 Wynne v. Lord Nevvborougli, 15 Ves. 2i Shainwald v. Lewis, 8 Fed. R. 878. 
 283.
 
 § 256.] THE receiver's security. 381 
 
 concerned ; 25 and in such a case the receiver is usually obliged 
 to act without compensation if he accepts the trust. 20 When a 
 party to the cause is appointed receiver in it, he does not thereby 
 lose his privilege of acting as party. 27 It has been held in Ten- 
 nessee, that no one, not even a clerk of the court, can be made 
 a receiver against his will. 28 It was held improper to appoint 
 as assignee in bankruptcy of a corporation one who had been ap- 
 pointed by a State court receiver of its assets; 29 but it was 
 subsequently held eminently proper to appoint as receiver of the 
 assets of an insolvent corporation one, who by the laws of 
 the State that chartered it, was the official custodian of its assets 
 in case of its insolvency, even though that State was in another 
 circuit from the one in which the suit for a receiver was brought, 
 and the officer did not reside within the jurisdiction of the 
 court. 30 In this case, it was made a condition of the appoint- 
 ment that the receiver should pay into the registry of the court 
 the proceeds of all assets collected within its jurisdiction; 31 but 
 he was allowed to give sureties who were residents of the State 
 where he dwelt. 32 An order may provide for the appointment 
 of a receiver in the alternative to other relief. 33 Recent statutes 
 provide that no clerk or deputy clerk of a Federal court shall 
 be appointed receiver except for special reasons which must be 
 assigned in the order of appointment ; u and that " no person 
 related to any justice or judge of an}' - court of the United States 
 by affinity or consanguinit} r , within the degree of first cousin, 
 shall hereafter be appointed by such court or judge to or em- 
 ployed by such court or judge in any office or duty in any court 
 of which such justice or judge may be a member." 35 
 
 § 256. The Receiver's Security. — As a general rule, the Older 
 for the appointment of a receiver provides that he shall give 
 good and sufficient security for the faithful performance of his 
 
 25 Atkins v. Wabash, St. L. & P. Ry. 29 In re Stuyvesant Bank, 5 Benedict, 
 Co., 29 Fed. R. 161 ; Kerr on Receivers 566 ; s. c. 6 N. B. R. 272. 
 
 (2d Am. ed.), 136-139. 30 Taylor v. Life Association of Amer- 
 
 26 Wilson i'. Greenwood, 1 Swanst. ica, 3 Fed. R. 465. 
 
 471, 483; Blakeney v. Dufaur, 15 Beav. 31 Taylor v. Life Association of Amer- 
 
 40 ; Hoffman v. Duncan, 18 Jur. 69 ; ica, 3 Fed. R. 465. 
 
 l'owys v. Blagrave, 18 Jur. 463. But see 32 Taylor v. Life Association of Amer- 
 
 Newport v. Bury, 23 Beav. 30. ica, 3 Fed. R. 465. 
 
 27 Scott v. Platel, 2 Phil. 229 ; Cowdrey 33 Curling t\ Townshend, 19 Ves. 628. 
 v. Railroad Co., 1 Woods, 331, 350. 34 20 St. at L. ch. 183, p. 415. 
 
 28 Waters v. Carroll, 9 Yerg. (Tenn.) 35 25 St. at L. ch. 373, § 7, p. 554. 
 102.
 
 382 RECEIVERS. [CHAP. XVII. 
 
 duties. 1 This, by the English practice, was usually a recognizance 
 entered into by the receiver and two or more sureties, whereby 
 they, the cognizors, acknowledged " themselves to be indebted 
 to the cognizees (usually the Master of the Rolls and the senior 
 Master of the Court) in certain sums of money to be paid on 
 certain days therein mentioned ; in default of which they will 
 and agree that the said sums shall be levied and recovered 
 of them, their heirs, executors, and administrators, and of all 
 and singular their lands and hereditaments, goods and chat- 
 tels." 1 The recognizance, however, was subject to a condi- 
 tion making it void if the receiver should duly account for the 
 rents and profits of the estate over which he was appointed. 2 
 In the Federal courts, no fixed rule prevails, the security re- 
 quired from a receiver being whatever the judge who orders his 
 appointment thinks proper. 3 When a receiver is appointed by 
 consent, the court ma}' appoint him without requiring security, 
 or upon his own recognizance only. 4 The sureties must usually 
 dwell within the jurisdiction of the court ; but under peculiar 
 circumstances sureties residing elsewhere have been accepted. 5 
 The sureties of a receiver cannot be discharged at their own 
 request, 6 except under special circumstances, " as where under- 
 hand practice is proved, and the person secured shown to be con- 
 nected with such practice." 7 ''For if people voluntarily make 
 themselves bail or sureties for another, they know the terms, and 
 will be held very hard to their recognizance, and not discharged 
 at their request to have new sureties appointed, for then there 
 would be no end of it." 8 If a surety should procure his dis- 
 charge during the continuance of the receivership, the receiver 
 must enter into a fresh recognizance. 9 In law, a surety is liable 
 to the full amount of the penalty of the recognizance, bond, or 
 undertaking by which he is bound. 10 In equity, however, he is only 
 liable to the full amount, including interest as well as principal, 
 
 § 256. I Danicll's Ch. Pr. (2d Am. ed.) s Taylor v. Life Association of Amer- 
 
 1977 ; Mead v. Lord Orrery, 3 Atk. 235 ; ica, 3 Fed. R. 465. 
 
 Tomlinson v. Ward, 2 Conn. 396. 6 Griffith v. Griffith, 2 Ves. Sen. 400 ; 
 
 2 Daniell's Ch. Pr. (2d Am. ed.) 1999. Gordon v. Calvert, 2 Simons, 253. 
 
 3 Taylor v. Life Association of Amer- 7 Hamilton v. Brewster, 2 Molloy, 407. 
 ica, 3 Fed. R. 465. 8 Lord Hardwicke in Griffith v. Griffith, 
 
 4 Hibhert v. Hibbert, 3 Meriv. 681 ; 2 Ves. Sen. 400. 
 
 Countess of Carlisle v. Lord Berkley, 9 Vaughan v. Vaughan, 1 Dickens, 90; 
 
 Anil). 599 ; Pidout v. Earl of Plymouth, Blois v. Betts, 1 Dickens, 336. 
 
 1 Dickens, 68. 1U Dawson v. Paynes, 2 Russ. 466, 468-
 
 § 257.] KECEIVERS' ACCOUNTS. 383 
 
 which the receiver is liable in equity to pay, 11 unless that exceeds 
 the amount of the penalty, which fixes the extreme limit of his 
 liability. 12 It has been held in England that a surety who has 
 undertaken to be responsible for whatever a receiver " should re- 
 ceive or become liable to pay" as such receiver is liable for funds 
 received by the receiver before the security was given. 13 Where 
 the parties interested have been guilty of gross delay in compel- 
 ling the receiver to pass his accounts, the court may excuse the 
 surety from the payment of the whole or a part of the interest. 14 
 According to Daniell, " When an action is brought against a 
 receiver's surety upon the recognizance, the proper course for 
 him to pursue appears to be, to apply to the court by motion, 
 to stay the proceedings on the recognizance, offering at the 
 same time to pay the amount due from the Receiver, so as the 
 same does not exceed the amount of the recognizance, into 
 Court: and upon such motion, the order will be made upon the 
 surety's paying the cost of the application, and of the proceed- 
 ings consequent upon it. When the Receiver's account has not 
 been taken, the motion should also pray a reference to the Mas- 
 ter to see what is due from the Receiver ; and it seems that upon 
 such application the Court will indulge the surety by allowing 
 him to pay the balance by instalments." 15 When a surety has 
 been obliged to pay anything on account of the receiver, he will 
 be entitled to a lien for his reimbursement upon anything which 
 may subsequently be due to the receiver from the suit. 16 
 
 § 257. Receivers' Accounts. — A receiver should account annu- 
 ally to the court unless accounts at shorter intervals are required 
 of him. 1 His accounts are filed and passed in the office of the 
 master to whom matters pertaining to the receivership are 
 referred. 2 A receiver's account should describe the situation 
 of the estate at the time when he received it, and any changes 
 that have since taken place. He should then state his receipts 
 and disbursements, which should be set forth in schedules as 
 specifically as possible. 3 He should also state such indebtedness 
 
 11 Dawson v. Raynes, 2 Russ. 466. §257. 1 Potts v. Lei^hton, 15 Ves. 
 
 12 Walker v. Wild, 1 Madd. 528. 273; General Order, 15 Ves. 278; Lowe 
 
 13 Smart v. Flood, 49 L. T. 467. v. Lowe, 1 Tenn. Ch. 615. 
 
 14 Dawson v. Raynes, 2 Russ. 466. 2 Daniell'a Ch. Pr. (2d Am. ed.) 1906 
 
 15 Daniell's Ch. Pr. (2d Am. ed.) 2005, 1997. 
 
 2006, citing Walker v. Wild, 1 Madd. 528. » Daniell's Chr. Pr. (2d Am. ed ) 
 
 16 Glossop v. Harrison, Cooper, 61; 1996, 1997. But see Lafayette Co v. 
 b. c. 3 V. & B. 134. Neely, 21 Fed. R. 738.
 
 384 RECEIVERS. [CHAP. XVII. 
 
 as he has incurred; and, in general, give as full a description 
 of the estate in his hands, and of his actions concerning the same 
 as is practicable. 4 If a person has not been paid for services 
 rendered to the estate, but has agreed with the receiver to be 
 content with what the court allows him, that fact should be 
 stated in the account together with a description of the services 
 thus performed. 5 Allowances to counsel will usually be small, 
 until the final accounting of the receiver, when the full amount 
 earned will be ordered paid to them. 6 Where before his appoint- 
 ment a receiver had received rent paid to him in his individual 
 capacity in advance, he was obliged to apportion the rent, and 
 to account for so much of it as was paid for the time during 
 which he acted as receiver of the property, for the use of which 
 the rent was paid. 7 Exceptions will not lie to the master's report 
 upon a receiver's accounting, the master acting in the place of 
 the court in a judicial and not in a ministerial capacity. 8 Should 
 the receiver or any other party to the accounting feel aggrieved 
 at a ruling of the master, he should take an exception at the 
 time, 9 and subsequently petition the court to refer the matter back 
 to the master for correction. 10 The court's duty upon such a 
 petition consists in reviewing the principles and rules adopted 
 and followed by the master in allowing the receiver's accounts, 
 rather than in examining the items of the account in detail, or the 
 evidence upon which those items are severally founded ; the latter 
 duty belonging more especially to the province of the master 
 acting in his judicial capacity, analogous to the province and duty 
 of a jury on questions of fact. 11 In a proper case, the receiver, 
 as well as any other party interested, maj r appeal to the Supreme 
 Court from the final decree entered after his accounting. 12 
 
 § 258. Compensation of Receivers. — The compensation of a 
 receiver is usually fixed in the first instance by the master, 1 
 
 4 Daniell's Ch. Pr. (2d Am. ed.) 1996, 9 Cowdrey v. Railroad Co., 1 Woods, 
 1997 ; Hooper v. Winston, 24 111. 353 ; 331, 833. 
 
 Hinckley v. Railroad Co., 100 U. S. 153 ; l0 Cowdrey v. R. R. Co , 1 Woods, 331. 
 
 Attorney-General v. North American Life u Cowdrey ». Railroad Co., 1 Woods, 
 
 Ins. Co., 89 N. Y. 94, 107 ; Bourne v. May- 331, 334. 
 
 bin, 3 Woods, 724, 741 ; Equity Rule 79. 12 Hinckley v. Oilman C. & S. R. R. Co., 
 
 5 Adams v. Woods, 8 Cal. 306. 94 TJ. S. 467 ; Hinckley v. Railroad Co., 
 e Central Trust Co. v. Wabash, St. L. 100 U. S. 153. 
 
 & P. Ry. Co., 23 Fed. R. 675. § 258. l Cowdrey v. Railroad Co., 1 
 
 7 In re Allin, 8 Fed. R. 753. Woods, 331, 341 ; Central Trust Co. v. 
 
 8 Cowdrey v. Railroad Co., 1 Woods, Wabash, St. L. & P. Ry. Co., 32 Fed. R. 
 331, 334. 187.
 
 § 257.] REMOVAL OF RECEIVERS. 385 
 
 with whose determination the court will not ordinarily interfere. 2 
 The compensation will rarely, if ever, be increased upon appeal. 3 
 Where the court has fixed a receiver's compensation in advance, 
 it has the power to award him an additional sum for extraordin- 
 ary labors. 4 Concerning the rules regulating the amount of a 
 receiver's compensation, Mr. Justice Bradley said : " It would 
 hardly be a proper rule' for governing the case, to inquire what 
 another even competent person would have been willing to do 
 the work for. The receiver's office is not put up at auction. 
 His compensation is not fixed on that principle at all. The 
 chancellor selects a person whom he regards as competent and 
 trustworthy, and the amount of compensation is graduated some- 
 what by the duties and somewhat by the responsibilities of the 
 situation." 5 In cases of moderate amount, a commission of five 
 per cent upon the receipts and disbursements is not unusual. 6 
 Where the amounts received and disbursed are large, it is cus- 
 tomary to pay the receiver a salary or a lump sum graduated 
 according to the amount of his time employed, the value of the 
 property, the difficulty of his task, and the success of his admin- 
 istration. 7 It has been said that the peculiar duties and respon- 
 sibilities and accountability of a receiver of a railroad entitle him 
 to a larger amount than would be demanded by the head officer 
 of a railroad of the same size and business. 8 Accordingly, re- 
 ceivers of railroads have been frequently allowed as much as 
 $10,000 a year; 9 and in one case two receivers were each al- 
 lowed $70,000 for three and a half years' work. 10 
 
 §259. Removal of Receivers. — A receiver may be removed 
 for misconduct in office, 1 or because his original appointment 
 
 2 Cowdrey v. Railroad Co., 1 Woods, Co. v. Wabash, St. L. & P. Ry. Co., 32 
 
 331, 341 ; Central Trust Co. v. Wabash, Fed. R. 187. 
 
 St. L. & P. Ry. Co., 32 Fed. R. 187. 8 Bradley, J., in Cowdrey v. Railroad 
 
 s Hinckley v. Railroad Co., 100 U. S. Co., 1 Woods, 331, 347. Approved by 
 
 153. Brewer, J., in Central Trust Co. v. Wa- 
 
 4 Farmers' L. & Tr. Co. v. Central R. R. bash, St. L. & P. Ry . Co., 32 Fed. R. 187, 
 
 of Iowa, 8 Fed. R. 60. 188. 
 
 6 Cowdrey v. Railroad Co., 1 Woods, 9 Hinckley v. Railroad Co., 100 U. S. 
 
 331, 345, 346. Approved by Brewer, J., 153; Cowdrey v. Railroad Co., 1 Woods, 
 
 in Central Trust Co. v. Wabash, St. L. & 331, 347. But see Farmers' L. & Tr. Co. 
 
 P. Ry. Co., 32 Fed. R. 187, 188. v. Central R. R. of Iowa, 8 Fed. R. 60. 
 
 6 Cowdrey v. Railroad Co., 1 Woods, 10 Central Trust Co. v. Wabash, St. L. 
 331, 346 ; Day v. Croft, 2 Beav. 488. & P. Ry Co., 32 Fed. R. 187. 
 
 7 Cowdrey v. Railroad Co., 1 Woods, § 259. » Handy v. Cleveland & Marietta 
 331, 3 Hi ; E aimers' L. & Tr. Co. v. Central R. R. Co., 31 Fed. R. 689 ; Atkins v. Wa- 
 R. R. of Iowa, 8 Fed. R. 60 ; Central Trust bash, St. L. & P. Ry. Co., 29 Fed. R. 101. 
 
 25
 
 386 RECEIVERS. [CHAP. XVII. 
 
 was obtained by collusion or fraud, 2 or was improper on account 
 of his interest in the subject of the receivership or connection 
 with the parties in interest. 3 Instances of such misconduct 
 as will be a cause for the removal of a receiver are unlawful 
 discrimination in charges between different shippers upon a 
 railroad; 4 the purchase of supplies for the purpose of the 
 receivership from a firm or corporation in which he is largel} r 
 interested ; 5 and in the case of two receivers, where they are un- 
 able to act in harmony, and the interests of the estate suffer from 
 their discord. 6 A receiver will not be removed or discharged 
 at his own request except for good cause shown, nor ordinarily 
 for a reason which he knew or had ground to anticipate when he 
 accepted the receivership. 7 Thus a receiver will not ordinarily 
 be removed upon the sole ground that the duties of his office 
 interfere with his private business. 8 A receiver may be removed 
 at his own request when by reason of blindness he has become 
 physically incapable of performing the duties of his receivership. 9 
 Ordinarily, a receiver can only be removed by the court which ap- 
 pointed him, 10 upon an application made in the suit in which his 
 appointment was made. 11 A Federal court may, however, after the 
 removal of a suit remove a receiver therein appointed by a State 
 court. 12 And it has been held that when a Circuit Court of the 
 United States has appointed a receiver of a line of railroads 
 running through another circuit, as well as through that wherein 
 the appointment is made, his authority in the other circuit is 
 recognized merely by judicial comity, and he may be removed 
 from all control over property therein by the Federal court 
 
 2 0'Mahoneyt\Belmont,62N. Y. 133; Smith v. Vaughan, Ridg. temp. Hardw. 
 6. c. 37 N. Y. Superior Court, 223. 251 ; Beach on Receivers, § 782. 
 
 3 Atkins v. Wabash, St. L. & P. Ry. 8 Beers v. Chelsea Bank, 4 Edw. Ch. 
 Co., 29 Fed. R. 161. (^ T - Y ) 277. But see Purdy v. Rapalye 
 
 * Handy v. Cleveland & Marietta R. R. (N. Y. Chancery, 1835); Edwards on 
 
 Co., 31 Fed. R. 689 ; Atkins v. Wabash, Receivers, 661 ; Beach on Receivers, 
 
 St. L. & P. Ry. Co., 29 Fed R. 161. But § 782. 
 
 see Central Trust Co. v. Ohio Cent. R. R. 9 Richardson v. Ward, 6 Madd. 266. 
 
 Co., 23 Fed. R. 306. 10 Young v. Montgomery & E. R. R. Co., 
 
 s Atkins v. Wabash, St. L. & P. Ry. 2 Woods, 606, 618 ; Alabama & C. R. R. 
 
 Co., 29 Fed. R. 161. Co. v. Jones, 7 N. B. R. 145, 169; Beach 
 
 6 Meier v. Kansas Pacific R. R. Co., on Receivers, §§ 777, 778. 
 
 5 Dill. 476. But see Conner v. Belden, u Davis v. Michelbacher (S. C. Wis.}, 
 
 8 Daly (N. Y. C. P.) 257. 31 N. W. R. 168; Beach on Receivers, 
 
 * Richardson v. Ward, 6 Madd. 266 ; §§ 777, 778. 
 
 Beers v. Chelsea Bank, 4 Edw. Ch. (N. Y.) 12 Texas & St. L. Ry. Co. v. Rust, 17 
 
 277 ; In re Lytle, 3 Paige Ch. (N. Y.) 251 ; Fed. R. 275.
 
 § 260] DISCHARGE OF A RECEIVER 337 
 
 there held upon a bill there filed. 13 When a receiver is removed, 
 the court usually appoints some one in his place. Whether a 
 receiver who is not a party to a suit can appeal from an order 
 for his removal is doubtful. 14 
 
 § 260. Discharge of a Receiver. — The discharge of a receiver 
 is a termination of the receivership, and no successor to him is 
 then appointed. 1 It will be ordered when the court is satisfied 
 either that no occasion for a receivership existed when the 
 appointment was made, 2 or that in the course of subsequent 
 events the necessity for the receivership has ceased. 3 Ordinarily, 
 a receiver can be discharged only by the court that appointed 
 him. 4 After the removal of a case from a State to a Federal 
 court, the Federal court may discharge a receiver therein ap- 
 pointed. 5 Any person injured by the appointment of a receiver 
 can move for his discharge although not a party to the suit in 
 which he was appointed. 6 The motion should be made on 
 notice to all parties interested. 7 A motion for the discharge of 
 a receiver may be denied on account of the laches of the moving 
 party. 8 A receiver of the estate of an infant will not be dis- 
 charged until a year after the infant's majority, unless the ward 
 after majority consents to his discharge. 9 The receiver will not 
 be discharged at the motion of the party who procured his ap- 
 pointment, if other parties who have acquired an interest in 
 the receivership object. 10 The entry of a final decree which does 
 
 13 Atkins v. Wabash, St. L. & P. Ry. Fed. R. 275 ; Mahoney Mining Co. v. 
 Co., 29 Fed. R. 161. But see Central Bennett, 4 Saw. 289. As to the dispo- 
 Trust Co. v. Wabash, St. L. & P. Ry. Co., sition of the money in the hands of a re- 
 29 Fed. R. 618 ; Muller v. Dows, 94 U. S. ceiver thus discharged, see Mack v. Jones, 
 414 ; Young v. Montgomery & E. R. R. 31 Fed. R. 189, 196. 
 
 Co., 2 Woods, 606, 618; Alabama & C. 6 Thomas v. Brigstocke, 4 Russ. 64; 
 
 R. R. Co., v. Jones, 7 N. B. R. 145, 169. Grenfell v. Dean of Windsor, 2 Beav. 544 ; 
 
 14 See Conner v. Belden, 8 Daly (N. Y. Milwaukie & Minnesota R. It. Co. v. 
 C. P.), 257 ; Wilson v. Barney, 5 Hun, Soutter, 2 Wall. 510. 
 
 (N. Y.) 257 ; Connolly v. Kretz, 78 N. Y. 7 Davis v. Duke of Marlborough, 2 
 
 620. Swanst. 108, 118 ; Bainbrigge v. Blair, 3 
 
 § 260. J Beach on Receivers, § 791. Beav. 421, 423. 
 
 2 Lavender v. Lavender, Irish Rep. 9 8 Allen v. Dallas & W. R. R. Co., 3 
 
 Eq. 593 ; Furlong v. Edwards, 3 Md. 99 ; Woods, 316, 331 ; National Mechanics' 
 
 Sage v. Memphis & L R. R. R. Co., 18 Banking Assn. v. Mariposa Co., 60 Barb. 
 
 Fed. R. 571 ; s. c. 125 U. S. 361. (N. Y.) 423 ; Hazard v. Credit Mobilier 
 
 8 Davis v. Duke of Marlborough, 2 of America, 38 Fed. R. 195. 
 
 Swanst. 108, 168 ; Bainbrigge v. Blair, 3 9 Matter of Van Home, 7 Paige Cli. 
 
 Beav. 421. (N. Y.) 46 ; Wildridge v. McKane, 2 
 
 4 Young U.Montgomery & E. R. R. Co., Molloy, 545. See also Bainbrigge v. 
 2 Woods, 606 ; Beach on Receivers, § 791. Blair, 3 Beav. 421. 
 
 5 Texas & St. L. Ry. Co. v. Rust, 17 10 Bainbrigge v. Blair, 3 Beav. 421 ;
 
 388 
 
 RECEIVERS. 
 
 [CHAP. XVII 
 
 not provide for the continuance of a receivership supersedes the 
 appointment of a receiver. 11 It has been held that the discharge 
 of a receiver by a decree cannot be set aside after the term at 
 which it was made. 12 The discharge of a receiver terminates his 
 liability for acts done in his official capacity. 13 After a receiver's 
 discharge damages to the estate resulting from his mismanage- 
 ment cannot be recovered from the sureties upon an injunction 
 bond concurrent with his appointment. 14 
 
 People v. Globe Mutual Life Ins. Co., 67 
 How. Pr. (N- Y.) 481 ; Fay v. Erie & K. 
 R. R. Bank, Hairing. (Mich.) 194. See, 
 however, Davis v. Duke of Marlborough, 
 2 Swanst. 108, 168 ; Whiteside v. Prender- 
 gast, 2 Barb. Ch. (N. Y.) 471. 
 
 " Daniell's Ch. Pr. (5th Am. ed.) 1765. 
 
 i 2 Davis v. Duncan, 19 Fed. R. 477. 
 
 1 3 Davis v. Duncan, 19 Fed. R. 477; 
 White v. Keokuk & D. M. Ry. Co., 52 
 Iowa, 97. 
 
 w Lehman v. M'Quown, 31 Fed. R. 138.
 
 § 261.] THE WRIT OF NE EXEAT REPUBLICA. 389 
 
 CHAPTER XVIII. 
 
 THE WRIT OF NE EXEAT REPUBLICA. 
 
 § 261. Definition of the "Writ of Ne Exeat Republica, and when 
 it will lasue. — The writ of ne exeat republica is a writ which 
 issues from a Federal court of equity to restrain a defendant to 
 a suit therein from departing from the United States without the 
 leave of the court. 1 In England it was called ne exeat regno, 
 and was considered a writ of high prerogative. It was originally 
 applicable to purposes of state only, but afterwards extended to 
 private transactions. 3 In the United States the writ has hitherto 
 been issued only at the request of a private party. The Revised 
 Statutes provide that " writs of ne exeat may be granted by any 
 justice of the Supreme Court, in cases where they might be 
 granted by the Supreme Court ; and by any circuit justice or 
 circuit judge, in cases where they might be granted by the cir- 
 cuit court of which he is a judge. But no writ of ne exeat shall 
 be granted unless a suit in equity is commenced, and satisfactory 
 proof is made to the court or judge granting the same that the 
 defendant designs quickly to depart from the United States." 3 
 It has been held that the writ cannot be granted by a judge of 
 the District Court, 4 except when holding a court of equity. 5 
 The intention of the defendant to depart from the judicial dis- 
 trict is not enough to authorize the issue of the writ. 6 The 
 claim of the party applying for the writ must be one enforceable 
 by a suit in a court of equity ; 7 except where a decree for perma- 
 nent alimony has been entered and no appeal therefrom is pend- 
 ing, in which case the English rule was that the writ might issue 
 to compel obedience to the same. 8 The claim must be for the 
 
 § 201. l See Daniell's Ch. Pr. (2d Am. 5 Lewis v. Shainwald, 7 Saw. 403, 417, 
 
 ed.) 1925. 418. 
 
 a Jackson v. Petrie, 10 Ves. 104 ; Dan- 6 Loewenstcin v. Biernbaum, 8 Weekly 
 
 jell's Ch. Pr. (2d Ara. ed.) 1925 ; Beamea Notes of Cas. (Pa.) 163. 
 on Ne Exeat, 1-21. 7 Pearne v. Lisle, Ambler, 75; Sey- 
 
 3 U. S. R. S. § 717. ncour v. Hazard, 1 J. Ch. (N. Y.) 1. 
 
 * Gernon v. Boecaline, 2 Wash. 130. 8 Pearne v. Lisle, Ambler, 75 ; Read v
 
 390 THE WRIT OF NE EXEAT EEPUBLICA. [CHAP. XVIII. 
 
 payment of a certain fixed sum of money. 9 A claim for un- 
 liquidated damages is insufficient. 10 Thus, the writ cannot 
 issue under a bill to set aside a bill of sale of a vessel, for a 
 return of the vessel or her value, and for an account of her 
 earnings. 11 The debt must be already due. 12 A debt which 
 is contingent, 13 or certain but future, 14 is insufficient. The 
 motives for the defendant's departure, no matter how innocent 
 they may be, — as, for example, that he is about to sail upon 
 a ship of which he is captain, 15 — will not prevent the issue of 
 the writ. 16 
 
 § 262. Against whom the "Writ will Issue. — The writ was origi- 
 nally confined to subjects of the King of England. 1 It has been 
 extended, however, so as to apply to foreigners as well as sub- 
 jects of the country from the courts of which the writ issues, 2 
 and where the court has jurisdiction, the writ may be issued at 
 the suit of one foreigner against another. 3 It seems that the 
 writ may be issued against a married woman in a suit affecting 
 her separate estate. 4 The writ will not issue against a defendant 
 who is under arrest or held to bail in an action at law. 5 The 
 Constitution provides that Senators and Representatives shall, in 
 all cases, except treason, felony, and breach of the peace, be 
 privileged from arrest during their attendance at the session of 
 their respective Houses, and in going to and returning from the 
 same. 6 And the Revised Statutes, that whenever any writ or 
 process is sued out or prosecuted by any person in any court of 
 the United States, or of a State, or by any judge or justice, 
 whereby the person of any public minister of any foreign prince 
 or state, authorized and received as such by the President, or 
 
 Eead, 1 Ch. Cas. 115; Ex parte Whit- 15 Dick v. Swinton, 1 V. & B. 371. 
 
 more, 1 Dickens, 143 ; Shaftoe v. Shaftoe, 16 Stewart v. Graham, 19 Ves. 313 ; 
 
 7 Ves. 171 ; Street v. Street, 1 T. & R. Darnell's Ch.Pr. (2d Am. ed.) 1934,1935. 
 
 322 ; Daniell's Ch. Pr. (2d Am. ed.) 1926, § 262. * Darnell's Ch. Pr. (2d Am. ed.) 
 
 1927. 1933 ; Beames on Ne Exeat, 1-20. 
 
 9 Graham v. Stucken, 4 Blatchf. 50 ; 2 Flack v. Holm, 1 J. & W. 405 ; 
 
 Daniell's Ch. Pr. (2d Am. ed.) 1931. Daniell's Ch. Pr. (2d Am. ed.) 1933, 1934. 
 
 10 Graham v. Stucken, 4 Blatchf. 50. 8 DeCarriere v. DeCalonne, 4 Ves. 577 ; 
 
 " Graham v. Stucken, 4 Blatchf. 50. Mitchell v. Bunch, 2 Paige (N. Y.), 606. 
 
 12 Whitehouse v. Partridge, 3 Swanst. 4 Moore v. Hudson, Mad. & Geld. 218 ; 
 365, 377 ; Seymour v. Hazard, 1 J. Ch. Moore v. Meynell, 1 Dickens, 30 ; Daniell's 
 (N. Y.) 1. Ch. Pr. (2d Am. ed.) 191. 
 
 13 Anon., 1 Atk. 521. 6 Raynes v. Wyse, 2 Meriv. 472 ; Dan- 
 » Whitehouse v. Partridge, 3 Swanst. iell's Ch. Pr. (2d Am. ed.) 1930, 1931. 
 
 365, 377 ; Seymour v. Hazard, 1 J. Ch. 6 Constitution, Article I. § 6. 
 
 (N. Y.) 1.
 
 § 263.] PRACTICE IN OBTAINING THE WRIT OF NE EXEAT. 391 
 
 any domestic or domestic servant of any such minister, is arrested 
 or imprisoned, or his goods or chattels are distrained, seized, or 
 attached, such writ or process shall be deemed void. 7 When- 
 ever any writ or process is sued out in violation of this statute, 
 every person by whom the same is obtained or prosecuted, 
 whether as party or as attorney or solicitor, and every officer 
 concerned in executing it, is deemed a violator of the laws of na-. 
 tions and a disturber of the public repose, and is liable to impris- 
 onment for not more than three years, and a fine at the discretion 
 of the court. 8 These regulations do not apply to any case where 
 the person against whom the process is issued is a citizen or in- 
 habitant of the United States in the service of a public minister, 
 and the process is founded upon a debt contracted before he 
 entered upon such service ; nor to any case where the person 
 against whom the process issued is a domestic servant of a pub- 
 lic minister, unless the name of the servant has, before the 
 issuing thereof, been registered in the Department of State, and 
 transmitted by the Secretary of State to the marshal of the Dis- 
 trict of Columbia, who is required, upon the receipt thereof, to 
 post the same in some public place in his office. 9 All persons 
 may have access to the list of names so posted in the marshal's 
 office, and may take copies without a fee. 10 
 
 § 263. Practice in obtaining the "Writ of Ne Exeat. — The ap- 
 plication for a writ of ne exeat republica may be made ex parte, 
 even after the defendant has appeared. 1 The reason for allow- 
 ing this is, that notice might frustrate the object of the motion 
 by giving the party an opportunity of removing himself out of 
 the jurisdiction. 2 It has been held in England that the writ can- 
 not be obtained until a bill has been filed. 3 The equity rules 
 provide that the writ shall be asked for in the bill, when it is 
 required " pending the suit." 4 But it has been held that the 
 writ may be granted at or after the decree, although the bill 
 contains no such prayer. 5 And by the English practice, no 
 
 7 U. S. R. S. § 4063. See Ex parte 2 Elliot v. Sinclair, Jacob, 645. 
 Cabrera, 1 Wash. C. C 232 ; United 8 Ex parte Brunker, 3 P. Wins. 312 ; 
 States v. Benner, Baldwin, 234 ; United Mattocks v. Tremain, 3 J. Ch. (N. Y.) 
 States v. Lafontaine, 4 Cranch C. C. 173. 75. But see Loyd v. Cardy, Prec. in Ch. 
 
 8 U. S. R. S. § 4064. 171. 
 
 9 U. S. R. S. § 4065. 4 Rule 21. But see the language of 
 w U. S. R. S. § 4066. Lord Eldon in Collinson v. , 18 Ves. 
 
 § 263. i Collinson v. , 18 Ves. 353 ; 353. 
 
 Elliot v. Sinclair, Jacob, 545. 5 Lewis v. Shainwald, 7 Saw. 403, 417
 
 392 THE WRIT OF XE EXEAT REPUBLICA. [CHAP. XVIII. 
 
 prayer in the bill was required. 6 The writ must be supported 
 by an affidavit made by the complainant himself, or some person 
 acquainted with the facts. 7 The affidavit must be positive as to 
 the facts, not merely upon information and belief, 8 except in the 
 case of an account, when the plaintiff may swear that, to the 
 best of his belief, the sum named will be due to him on the bal- 
 ance of the account. 9 A writ was discharged when it appeared 
 from the affidavit that the affiant could not have had personal 
 knowledge of the transaction to which he swore positively. 10 
 The affidavit must be positive as to the intention of the defendant 
 to go abroad, or to his threats or declarations, or those of members 
 of his family or his agents, showing such an intention on his part. 11 
 An affidavit stating information from a stranger will ordinarily 
 be insufficient. 12 It is prudent to state in the affidavit that the 
 debt will be endangered by the defendant's quitting the coun- 
 try. 13 Deficiencies in the affidavit may be supplied by admis- 
 sions in the answer. 14 The court may require as a condition for 
 the issue of the writ that the complainant give an undertaking 
 to respond in damages should the writ be afterwards discharged. 15 
 The writ is directed to the marshal, and is in substantially the 
 following form : — 
 
 The President of the United States of America to the Mar- 
 shal of the Southern District of New York : 
 Greeting, — Whereas it is represented to us in our Circuit Court 
 of the United States for the Southern District of New York in equity, 
 on the part of John Aber, complainant, against Charles Dutton, 
 defendant, (among other things) that he, the said defendant, is greatly 
 indebted to the said complainant and designs quickly to go into 
 parts without the United States (as by oath made on that behalf 
 appears), which tends to the great prejudice and damage of the said 
 complainant. Therefore, in order to prevent this injustice, we do 
 
 6 Collinson v. ,18 Ves. 353; Lewis Watts, 2 C. P. Cooper temp. Cottenham, 
 
 v. Shainwald, 7 Saw. 403. 416, 417. 257. 
 
 7 Collinson v. , 18 Ves. 353 ; Mat- 12 Oldham v. Oldham, 7 Ves. 410. 
 
 tocks v. Tremain, 3 J. Ch. (N. Y.) 75. 13 Mattocks v. Tremain, 3 J. Ch. (N. Y ) 
 
 8 Rico v. Gualtier, 3 Atk 501 ; Jack- 75, 76 ; Baker v. Haily, 2 Dickens, 632 ; 
 son v. Petrie, 10 Ves. 164; Mattocks v. Daniell's Oh. Pr. (5th Am. ed.) 1708, and 
 Tremain, 3 J. Ch. (N. Y.) 75. cases cited. But see McGehee v. Polk, 
 
 9 Pico v. Gualtier, 3 Atk. 501 ; Jack- 24 Ga. 406, 412. 
 
 son v. Petrie, 10 Ves. 164. M Roddam v. Hetherington, 5 Ves. 91, 
 
 J0 Roddam v. Hetherington, 5 Ves. 01. 95. 
 
 11 Oldham v. Oldham, 7 Ves. 410; 15 Daniell's Ch. Pr. (5th Am. ed.) 1708. 
 
 Collinson v. , 18 Ves. 353 ; Knight v. 
 

 
 263] PRACTICE IN OBTAINING THE WRIT OF NE EXEAT. 
 
 593 
 
 hereby command you, that you do, without delay, cause the said 
 Charles Dutton personally to appear before you, and give sufficient 
 
 bail or security in the sum of $ that the said Charles Dutton will 
 
 not go, or attempt to go, into parts without the United States, without 
 leave of our said Court ; and in case the said Charles Dutton shall 
 refuse to give such Bail or Security, then you are to commit the said 
 Charles Dutton to our next prison, there to be kept in safe custody, 
 until he shall do it of his own accord ; and, when you shall have taken 
 such security, you are forthwith to make and return a certificate thereof 
 to us in our said Circuit Court of the United States for the Southern 
 District of New York distinctly and plainly under your hand, together 
 with this Writ. 
 
 Witness, the Honorable MELVILLE W. FULLER, Chief Justice of 
 the Supreme Court of the United States, at the City of New York, in 
 the County and State of New York, the thirteenth day of November, 
 one thousand eight hundred and eighty-nine. 16 
 
 The writ should be endorsed with the amount of the sura de- 
 manded written out in words at length. 17 When it is issued against 
 a personal representative by a person claiming a share of the re- 
 siduary estate, it should be endorsed with the whole amount due 
 from the defendant, not only to the plaintiff, but to all persons in- 
 terested in the estate. 18 When the writ is endorsed for a larger 
 sum than is clue, the court will ordinarily refuse to quash it, but 
 will require the defendant to give security only for so much as is 
 really due. 19 The writ, upon its issue, must be delivered to the 
 marshal. It is his duty thereupon to execute it by arresting the 
 defendant named in it, and bringing him before the court. 20 He 
 has no power to break open doors under the writ. 21 The de- 
 fendant may be released upon giving sufficient security to sat- 
 isfy the marshal. 22 After executing the writ, the marshal should 
 make a return of what he has done. 23 The defendant may move 
 at any time to discharge the writ, either for irregularity or upon 
 the merits, by disproving the charges in the complainant's affi- 
 davits. 24 But it has been said by Lord Eldon, that where the 
 plaintiff has sworn positively to the debt and to the defendant's 
 
 16 Beames on Ne Exeat, 23, 24. Wood, T. & R. 332, 340 ; Daniell's Ch. Pr. 
 
 « Beames on Ne Exeat, 93. (2d Am. ed.) 1043. 
 
 18 Pannell v. Tayler, T. & R. 96, 100. 23 Daniell's Ch. Pr. (2d Am ed.) 1945; 
 
 19 Pannell v. Tayler, T. & R. 96, 100. Impey on Sheriffs (2d ed.), 532. 
 
 20 Daniell's Ch. Pr. (2d Am. ed.) 1943. 24 Gernon v. Boecaline, 2 Wash. 130; 
 
 21 Beanies on Ne Exeat, 95. Grant v. Grant, 3 liuss. 598, 002. 
 
 22 Beames on Ne Exeat, 96 ; Boehm r.
 
 394 THE WRIT OF NE EXEAT KEPUBLICA. [CHAP. XVIII. 
 
 declarations of his intention to go abroad, the defendant's unsup- 
 ported affidavit will be insufficient to contradict this. 26 If the 
 writ is discharged, another writ may issue upon a new affidavit. 26 
 Upon pa} T tnent into court of enough to satisfy the plaintiff's 
 claim, the writ will always be discharged. 27 The writ may be 
 discharged if the defendant gives sufficient security to satisfy 
 the court. 28 The discharging order usually enjoins the defendant 
 from bringing an action of false imprisonment ; 29 and the prose- 
 cution of such an action may be restrained by a subsequent 
 order. 30 If the court considers the writ improperly issued, it 
 may direct a reference to a master to ascertain the damages sus- 
 tained by the defendant, and direct the payment to him of the 
 amount found due by the sureties upon the plaintiff's undertak- 
 ing. 31 An amendment of the bill which does not materially alter 
 the case does not discharge the writ. 32 
 
 25 Amsinck v. Barklay, 8 Vesey, 594, 95 ; Boon v. Collingwood, 1 Dickens, 115 ; 
 597 ; Jones v. Alephsin, 16 Vesey, 470, Beanies on Ne Exeat, 98, 99. 
 
 471. w Darley v. Nicholson, 2 Dr. & War. 86. 
 
 26 Gernon v. Boecaline, 2 Wash. 130. 8° Darley v. Nicholson, 2 Dr. & War. 86. 
 
 27 Evans v. Evans, 1 Ves. Jr. 96. 31 Siohel v. Raphael, 4 L. T. n. s. 114. 
 
 28 Roddam v. Hetherington, 6 Ves. 91. w Grant v. Grant, 5 Russ. 189. 
 

 
 § 264] admissions. 395 
 
 CHAPTER XIX. 
 
 EVIDENCE AT LAW AND IN EQUITY. 
 
 § 264. Evidence in General. — The Revised Statutes provide 
 that "the mode of proof in the trial of actions at common law 
 shall be by oral testimony and examination of witnesses in open 
 court, except as hereinafter provided ; " * and " the mode of proof 
 in causes of equity and of admiralty and maritime jurisdiction 
 shall be according to rules now or hereafter prescribed by the 
 Supreme Court, except as herein specially provided for." 2 
 Evidence consists of admissions upon the record, documents, 
 and the testimony of witnesses. No objection can be taken, on 
 an appeal to the Supreme Court, to the admissibility in evidence 
 of any deposition, deed, grant, or other exhibit found in the 
 record, unless the record shows that objection was taken thereto 
 in the court below. 3 
 
 § 265. Admissions. — Admissions upon the record are either 
 actual or constructive. Actual admissions are made either in 
 the pleadings or by agreement. Every statement of a fact mate- 
 rial to the issues made in the pleadings or other documents used 
 in support of the claim of any party to a suit, who is of full age, 
 whether sworn to or not, 1 may be used as evidence against him 
 upon the hearing. The statement by a defendant that he be- 
 lieves, or is informed and believes, that a certain fact occurred, 
 is treated as an admission unless coupled with some clause to 
 prevent its being so considered. 2 For it is a rule in equity that 
 what the defendant believes, the court will believe. 3 This rule, 
 however, does not apply to the statement of a defendant that he 
 believes that a will was executed as charged in the bill. 4 Admis- 
 sions in an answer made on behalf of an infant cannot be used 
 
 §264. U. S. R. S. §861. See Beards- 2 Potter v. Potter, 1 Ves. Sen. 274; 
 
 ley v. Littell, 14 Blatchf. 102; Ex parte Hill v. Binney, 6 Ves. 738. 
 Fisk, 113 U. S. 713. 8 Potter v. Potter, 1 Ves. Sen. 274; 
 
 2 U. S. R. S. § 862. See Blease v. Hill v. Binney, 6 Ves. 738. 
 Garlington, 92 U. S. 1. * Potter v. Potter, 1 Ves. Sen. 274 ; 
 
 8 Supreme Court Rule 13. Davies v. Davies, 3 DeG. & Sm. 698. 
 
 § 265. i Smith v. Potter, 3 Wis. 432.
 
 396 EVIDENCE AT LAW AND IN EQUITY. [CHAP. XIX. 
 
 against him, 5 unless he adopts the answer after he has reached 
 his majority. 6 An admission of one defendant, whether in his 
 answer or otherwise, is not evidence against any of his co-defend- 
 ants," who is not his partner 8 or who does not derive his title 
 from him. 9 The parties to a suit may, by an agreement signed 
 by themselves or their solicitors or made in open court by their 
 counsel, admit any fact as proven, or allow testimony to be taken 
 in any manner, unless they thus commit an act repugnant to 
 public policy. 10 No agreement between counsel will be enforced 
 unless reduced to writing or made in open court. 11 
 
 § 266. Constructive Admissions. — Constructive admissions are 
 those which are implied by law from a party's act. A construc- 
 tive admission is made by the plaintiff when he files no general 
 replication, but sets the cause down for a hearing upon bill and 
 answer only ; or when, in his bill, he does not expressly waive 
 an answer under oath. In the former case, he admits for the 
 purposes of the suit that all the allegations in the answer are 
 true j 1 in the latter, that all are true which he cannot contradict 
 by the testimony of two witnesses, or of a single witness with 
 corroborating circumstances. 2 This rule does not apply, however, 
 unless the allegations in the answer are made positively. 3 Thus, 
 a denial according to the defendant's recollection and belief is 
 insufficient for this purpose. 4 So is an allegation upon infor- 
 mation and belief. 5 By setting down a plea for argument the 
 plaintiff admits the truth of the allegations of fact therein con- 
 tained. 6 Constructive admissions are also made by a demurrer, 
 a plea, or a default in pleading. A demurrer admits the truth of 
 
 5 Leigh v. Ward, 2 Ventris, 72 ; Ec- n Evans v. State National Bank, 19 
 
 cleston v. Petty, Oarthew, 79; Savage v. Fed. R. 676. 
 
 Carroll, 1 Ball & Beatty, 548, 553 ; Wrot- § 266. x United States v. Scott, 3 
 
 tesley v. Bendish, 3 P. Wms. 235. Woods, 334; Kennedy v. Baylor, 1 Wash. 
 
 s Hinde's Ch. Pr. 422. (Va.) 162. 
 
 7 Leeds v. Marine Ins. Co., 2 Wheat. 2 Clark's Executors v. Van Riems- 
 
 380; Clark's Executors v. VanRiemsdyk, dyk, 9 Cranch, 153, 160; Union Bank of 
 
 9 Cranch, 153. Georgetown v. Geary, 5 Pet. 99, 110 ; 
 
 s Crosse v. Bedingfield, 12 Simons, 35 ; Seitz v. Mitchell, 94 U. S. 580, 582 ; 
 
 Clark's Executors v. Van Riemsdyk, 9 Vigel v. Hopp, 104 U. S. 441. 
 Cranch, 153, 156. 3 Carpenter v. Providence Washington 
 
 9 Field >: Holland, 6 Cranch, 8; Os- Ins. Co., 4 How. 185; Taylor v. Luther, 
 
 born v. Bank of United States, 9 Wheat. 2 Sumner, 228 ; Berry v. Sawyer, 19 
 
 738. Fed. R. 286. 
 
 io Barker v. Dixie, Reports temp. Hard- 4 Taylor v. Luther, 2 Sumner, 228. 
 
 wicke, 252 ; Owen v. Thomas, 3 M. & K. 6 Berry v. Sawyer, 19 Fed. R. 286. 
 
 353. 357 ; Nixon v. Albion Marine Ins. Co., 6 Burrell v. Hack ley, 35 Fed. R. 833; 
 
 L. R. 2 Ex. 338. Burrell v. Pratt, 35 Fed. R. 834.
 
 § 267.] DOCUMENTAEY EVIDENCE. 397 
 
 the allegations in the bill, 7 but not of conclusions of law therein 
 set forth. 8 A plea admits the truth of so much of the bill as it 
 does not deny. 9 A default by the defendant's failing to file a 
 demurrer, plea, or answer to the bill within the time allowed for 
 that purpose entitles the plaintiff to enter an order taking the 
 bill as confessed by him ; whereupon the defendant is deemed to 
 admit the truth of the allegations in the bill. 10 Formerly in 
 England no extra-judicial admissions of a defendant could be 
 given in evidence unless they had been charged in the bill ; but 
 that rule probably would not now be followed here. 11 Other 
 testimony also, which was of a kind likely to take a party by 
 surprise, was formerly often excluded unless the pleadings called 
 attention to it. 12 
 
 §267. Documentary Evidence in General. — Documentary evi- 
 dence consists of all those matters not contained in depositions 
 or affidavits, which are submitted to the court in the shape of 
 written documents. The rules regulating its admission are sub- 
 stantially the same in equity as at common law. 1 In equity, 
 however, such documents as merely require proof of their execu- 
 tion or of the handwriting contained in them may be admitted 
 in evidence at the hearing of the cause if accompanied by an 
 affidavit of these facts, provided that an order, which is granted 
 as of course, has been obtained and served upon the opposite 
 side at least two days before. 2 In some cases, the courts have 
 permitted the proof of such documents by word of mouth under 
 oath at the hearing, when their existence and execution was not 
 denied by the answer. 3 According to the old English practice, 
 the adverse party had no right, in the absence of special circum- 
 stances, to compel before the hearing the production of any 
 exhibit, however it had been proved, — except, perhaps, when the 
 deposition proving it had set it out verbatim; nor even to inspect 
 it, it being considered that a party should not before the hearing 
 
 7 Pacific Railroad of Missouri v. Mis- * 2 See § 69, and Langdell's Eq.PI. §60. 
 souri Pacific Ry. Co., Ill U. S. 505, 522. § 267. 1 Lake v. Philips, 1 Ch. Rep. 110; 
 See § 106. Stevens v. Cooper, 1 J. Ch. (N. Y.) 425, 
 
 8 Dillon v. Barnard, 21 Wall. 430. 429, and cases cited. 
 
 See § 106. * Clare v. Wood, 1 Hare, 314. 
 
 9 Farley v. Kittson, 120 U. S. 303. 8 Wood v. Mann, 2 Sumner, 3l6 ; 
 
 10 Rules 18,19. See §§ 103-104, ch. vii. Nesmith v. Calvert, 1 W. & M. 34; At- 
 
 11 See § 69, and Smith v. Burnham, torney-General v. Pearson, 7 Simons, 290, 
 2 Sumnor, 612 ; Jenkins v. Eldredge, 3 303. 
 
 Story, 181 ; Story's Eq. PL §§ 265 a.
 
 398 EVIDENCE AT LAW AND IN EQUITY. [CHAP. XIX 
 
 see the strength of the cause, or any deed, to pick holes in it. 4 
 The practice in the Federal courts seems to be otherwise. It 
 has been held there that, in equity and at common law, either 
 party may upon motion supported by affidavit, which affidavit 
 may be controverted, compel the other party to produce for his 
 inspection on the trial or hearing any books or other documents 
 material to the issues, which are in his opponent's possession or 
 under his opponent's control. 5 In a suit against the heir-at-law 
 to establish the validity of a will, all the witnesses to the will 
 who are alive, sane, and within the jurisdiction of the court, 
 must be examined; 6 and the testator's sanity must be proved 
 affirmatively. 7 This rule does not, however, apply to suits to 
 establish the trusts of a will, or to appoint a new trustee, or in 
 any other case when the validity of the will is not directly in 
 issue. 8 
 
 § 268. Federal Statutes regulating Admission of Documentary 
 Evidence. — The Revised Statutes of the United States provide 
 as follows concerning the admission of documentary evidence : 
 " Copies of any books, records, papers, or documents in any 
 of the executive departments, authenticated under the seals of 
 such departments, respectively, shall be admitted in evidence 
 equally with the originals thereof." * " Copies of any documents, 
 records, books, or papers in the office of the solicitor of the 
 treasury, certified by him under the seal of his office, or, when 
 his office is vacant, by the officer acting as solicitor for the time, 
 shall be evidence equally with the originals." 2 "Every certifi- 
 cate, assignment, and conveyance executed by the controller of 
 the currency, in pursuance of law, and sealed with his seal of 
 office, shall be received in evidence in all places and courts; 
 and all copies of papers in his office certified by him and authen- 
 ticated by the said seal, shall in all cases be evidence equally 
 
 * Da vers v. Davers, 2 P. Wms. 410. v. Schmeider, 9 Wall. 248 ; Chadwick v. 
 
 5 Coit v. North Carolina Gold Amal- United States, 3 Fed. R. 750; Block 
 gamating Co., 9 Fed. R. 577. Cf. U. S. v. United States, 7 Ct. CI. 406 ; United 
 R. S. § 724. But see Guyot v. Hilton, 32 States v. Liddle, 2 Wash. 205 ; United 
 Fed. R. 743; Colgate v. Compagnie Fran- States v. Benner, Baldwin, 234; Whiter, 
 caise, 23 Fed. R. 82. Saint Guirons, Minor (Ala.), 331 ; Catlett 
 
 6 Bootle v. Blundell, 19 Ves. 494 b, 505. v. Pacific Ins. Co., 1 Paine, 594 ; Bleecker 
 
 7 Harris v. Ingledew, 3 P. Wms. 91; v. Bond, 3 Wash. 529; Thompson v. Smith, 
 Wallis v. Hodgeson, 2 Atk. 56. 2 Bond, 320 ; Wetmore v. United States, 
 
 8 Bootle v. Blundell, 19 Ves. 494 b, 10 Pet. 647 ; Wickliffe v. Hill, 3 Litt. 
 505 ; Concannon v. Cruise, 2 Molloy,332. (Ky.) 330. 
 
 § 268. i U. S. R. S. § 882. See Barney 2 U. S. R. S. § 883.
 
 § 268.] DOCUMENTARY EVIDENCE. 399 
 
 with the originals. An impression of such seal directly on the 
 paper shall be as valid as if made on wax or wafer." 3 " Copies 
 of the organization certificate of any national banking associa- 
 tion, duly certified by the controller of the currency, and 
 authenticated by his seal of office, shall be evidence in all courts 
 and places within the jurisdiction of the United States of the 
 existence of the association, and of every matter which could be 
 proved by the production of the original certificate." 4 "When 
 suit is brought in any case of delinquency of a revenue officer, 
 or other person accountable for public money, a transcript from 
 the books and proceedings of the treasury department, certified 
 by the register and authenticated under the seal of the depart- 
 ment, or, when the suit involves the accounts of the war or 
 navy departments, certified by the auditors respectively charged 
 with the examination of those accounts, and authenticated under 
 the seal of the treasury department, shall be admitted as evi- 
 dence, and the court trying the cause shall be authorized to 
 grant judgment and award execution accordingly. And all 
 copies of bonds, contracts, or other papers relating to, or con- 
 nected with, the settlement of any account between the United 
 States and an individual, when certified by the register, or by 
 such auditor, as the case may be, to be true copies of the origi- 
 nals on file, and authenticated under the seal of the department, 
 may be annexed to such transcripts, and shall have equal validity, 
 and be entitled to the same degree of credit which would be due 
 to the original papers if produced and authenticated in court: 
 provided, that where suit is brought upon a bond or other 
 sealed instrument, and the defendant pleads non est factum, or 
 makes his motion to the court, verifying such plea or motion by 
 his oath, the court may take the same into consideration, and, 
 if it appears to be necessary for the attainment of justice, may 
 require the production of the original bond, contract, or other 
 paper specified in such affidavit." 5 "Copies of the quarterly 
 returns of postmasters and of any papers pertaining to the 
 accounts in the office of the sixth auditor, and transcripts from 
 the money-order account-books of the post-office department, 
 
 8 United States Revised Statutes, ton County National Bank v. Lee, 112 
 
 § 884. Mass. 621. 
 
 * U. S. R. S. § 885 ; First National 5 U. S. R. S. § 886 ; Bechtel v. United 
 
 Bank v. Kidd, 20 Minn. 234 ; Washing- States, 101 U. S. 597.
 
 400 EVIDENCE AT LAW AND IN EQUITY. [CHAP. XIX. 
 
 when certified by the sixth auditor under his seal of office, 
 shall be admitted as evidence in the courts of the United States, 
 in civil suits and criminal prosecutions ; and in any civil suit, in 
 case of delinquency of any post-master or contractor, a statement 
 of the account, certified as aforesaid, shall be admitted in evi- 
 dence, and the court shall be authorized thereupon to give 
 judgment and award execution, subject to the provisions of law 
 as to proceedings in such civil suits." 6 "Copies of any records, 
 books, or papers in the general land office, authenticated by 
 the seal and certified by the commissioner thereof, or, when his 
 office is vacant, by the principal clerk, shall be evidence equally 
 with the originals thereof. And literal exemplifications of any 
 such record shall be held, when so introduced in evidence, to be 
 of the same validity as if the names of the officers signing and 
 countersigning the same had been fully inserted in such record." 7 
 "Written or printed copies of any records, books, papers, or 
 drawings belonging to the patent office, and of letters patent 
 authenticated by the seal and certified by the commissioner or 
 acting commissioner thereof, shall be evidence in all cases where- 
 in the originals could be evidence ; and an} 7 person making appli- 
 cation therefor, and paying the fees required by law, shall have 
 certified copies thereof." 8 " Copies of the specifications and 
 drawings of foreign letters patent, certified as provided in the 
 next preceding section, shall be prima facie evidence of the fact 
 of the granting of such letters patent, and of the date and con- 
 tents thereof." 9 " The printed copies of specifications and draw- 
 ings of patents, which the commissioner of patents is authorized 
 to print for gratuitous distribution, and to deposit in the capitals 
 of the states and territories, and in the clerk's offices of the dis- 
 trict courts, shall, when certified by him and authenticated by 
 the seal of his office, be received in all courts as evidence of all 
 matters therein contained." 10 " Extracts from the journals of the 
 senate, or of the house of representatives, and of the executive 
 journal of the senate when the injunction of secrecy is removed, 
 certified by the secretary of the senate or by the clerk of the 
 
 6 United States Revised Statutes, 554; Lawrence v. United States, 2 Mc- 
 
 § 889 ; United States v. Harnll, McAllis- Lean, 581. 
 
 ter, 243 ; United States v. Hodge, 13 How. 7 U. S. R. S. § 891. 
 
 478 ; United States v. Hilliard, 3 McLean, 8 u. S. R. S. § 892. 
 
 324 ; United States v. Wilkinson, 12 How. 9 U. S. R. S. § 893. 
 
 246 ; Postmaster-General v. Rice, Gilp. 10 U. S. R. S. § 894.
 
 § 268.] ADMISSION OF DOCUMENTARY EVIDENCE. 401 
 
 house of representatives, shall be admitted as evidence in the 
 courts of the United States, and shall have the same force and 
 effect as the originals would have if produced and authenticated 
 in court." u " Copies of all official documents and papers in 
 the office of any consul, vice-consul, or commercial agent of the 
 United States, and of all official entries in the books or records 
 of any such office certified under the hand and seal of such offi- 
 cer, shall be admitted in evidence in the courts of the United 
 States." 12 " The transcripts into new books, made by the clerks 
 of the district courts in the several districts of Texas, Florida, 
 Wisconsin, Minnesota, Iowa, and Kansas, in pursuance of the 
 act of June twenty-seven, eighteen hundred and sixty-four, 
 chapter one hundred and sixty-five, from the records and jour- 
 nals transferred by them respectively, under the said act, to the 
 clerks of the circuit courts in the said districts, when certified 
 by the clerks respectively making the same to be full and true 
 copies from the original books, shall have the same force and 
 effect as records as the originals. And the certificates of the 
 clerks of said circuit courts, respectively, of transcripts of any 
 of the books or papers so transferred to them, shall be received in 
 evidence with the like effect as if made by the clerk of the court 
 in which the proceedings were had." 13 " The transcripts into new 
 books made by the clerks of the circuit and district courts for 
 the western district of North Carolina, in pursuance of the act 
 of June four, eighteen hundred and seventy-two, chapter two 
 hundred and eighty -two, when certified by the clerks respec- 
 tively making the same to be full and true copies from the 
 original books, shall have the same force and effect as records 
 as the originals. And the certificates of the clerks of said 
 circuit and district courts respectively, of transcripts of any of 
 the said transcribed records, shall also be received in evidence 
 with the like effect as if made by the proper clerk from the 
 originals from which such records were transcribed." 14 " When 
 the record of any judgment, decree, or other proceeding of any 
 court of the United States is lost or destroyed, any party or per- 
 
 11 U. S. R. S. § 805. Adm. 3G7 ; The Atlantic, Abbott's Adm. 
 
 12 U. S. R. S. § 896 ; Levy v . Burley, 451 ; United States v. Mitchell, 2 Wash. 
 2 Sumner, 355 ; Matthews v. Offley, 3 478 ; Johnson v. The Coriolanus, Crabbe, 
 Sumner, 115 ; Brown v. The Indepen- 23'.). 
 
 dence, Crabbe, 64 ; Church v. Hubbart, 13 U. S. R. S. § 897. 
 2 Cranch, 186; Lamb v. Briard, Abbott's " U. S. R. S. § 898. 
 
 26
 
 402 EVIDENCE AT LAW AND IN EQUITY. [CHAP. XIX. 
 
 son interested therein may, on application to such court, and on 
 showing to its satisfaction that the same was lost or destroyed with- 
 out his fault, obtain from it an order authorizing such defect to 
 be supplied by a duly certified copy of the original record, where 
 the same can be obtained ; and such certified copy shall there- 
 after have, in all respects, the same effect as the original record 
 would have had." 15 "When any such record is lost or destroyed, 
 and the defect cannot be supplied as provided in the preceding 
 section, any party or person interested therein may make a 
 written application to the court to which the record belonged, 
 verified by affidavit, showing such loss or destruction ; that the 
 same occurred without his fault or neglect ; that certified copies 
 of such record cannot be obtained by him ; and showing also the 
 substance of the record so lost or destroyed, and that the loss or 
 destruction thereof, unless supplied, will or ma} r result in damage 
 to him. The court shall cause such application to be entered 
 of record, and a copy of it shall be served personally upon every 
 person interested therein, together with a written notice that on 
 a day therein stated, which shall not be less than sixty days after 
 such service, said application will be heard; and if, upon such 
 hearinsf, the court is satisfied that the statements contained in 
 the application are true, it shall make and cause to be entered 
 of record an order reciting the substance and effect of said lost 
 or destroyed record. Said order shall have the same effect, so 
 far as concerns the party or person making such application and 
 the persons served as above provided, but subject to intervening- 
 rights, which the original record would have had, if the same 
 had not been lost or destroyed." 16 " When any cause has been 
 removed to the supreme court, and the original record thereof 
 is afterward lost, a duly certified copy of the record remaining 
 in said court may be filed in the court from which the cause was 
 removed, on motion of an}' party or person claiming to be inter- 
 ested therein ; and the copy so filed shall have the same effect as 
 the original record would have had if the same had not been lost 
 or destroyed." 17 " In any proceedings in conformity with law to 
 restore the records of any court of the United States which have 
 been or may be hereafter lost or destroyed, the notice required may 
 be served on any non-resident of the district in which such court 
 
 is U. S. R. S. § 899 ; Cornett v. Wil- »« U. S. R. S. § <.m. 
 liams, 20 Wall. 226. " U. S. R. S. § 901.
 
 § 268.] ADMISSION OF DOCUMENTAEY EVIDENCE. 403 
 
 is held any where within the jurisdiction of the United States, or 
 in any foreign country; the proof of service of such notice, if 
 made in a foreign country, to be certified by a minister or consul 
 of the United States in such country, under his official seal." 18 
 " A certified copy of the official return, or any other official 
 paper of the United States attorney, marshal, or clerk, or other 
 certifying or recording officer of any court of the United States, 
 made in pursuance of la*w, and on file in any department of the 
 government, relating to any cause or matter to which the United 
 States was a party in any such court, the record of which has 
 been or may be lost or destroyed, may be filed in the court to 
 which it appertains, and shall have the same force and effect as 
 if it were an original report, return paper, or other document 
 made to or filed in such court; and in any case in which the 
 names of the parties and the date and amount of judgment or 
 decree shall appear from such return paper, or document, it 
 shall be lawful for the court in which they are filed to issue the 
 proper process to enforce such decree or judgment, in the same 
 manner as if the original record remained in said court. And in 
 all cases where any of the files, papers, or records of any court 
 of the United States have been or shall be lost or destroyed, the 
 files, records, and papers which, pursuant to law, may have been 
 or may be restored or supplied in place of such records, files, 
 and papers, shall have the same force and effect to all intents and 
 purposes, as the originals thereof would have been entitled to." 19 
 " That whenever any of the records or files in which the United 
 States are interested of any court of the United States have been 
 or may be lost or destroyed, it shall be the duty of the attorney of 
 the United States for the district or court to which such files and 
 records belong, so far as the judges of such courts respectively 
 shall deem it essential to the interests of the United States that 
 such records and files be restored or supplied, to take such 
 steps, under the direction of said judges, as may be necessary to 
 effect such restoration or substitution, including such dockets, 
 indices, and other books and papers as said judges shall think 
 proper. Said judges may direct the performance, by clerks of said 
 courts respectively and by the United States attorneys, of any 
 
 18 U. S. R. S. § 902, as amended by Act 19 U. S. R. S. § 903, as amended by Act 
 of Jan. 31, 1879, ch. xxxix, § 1 (20 St. at of Jan. 31, 1879, ch. xxxix, § 2 (20 St. at 
 L. 277). 1*277).
 
 404 EVIDENCE AT LAW AND IN EQUITY. [CHAP. XIX. 
 
 duties incident thereto ; and said clerks and attorneys shall be 
 allowed such compensation for services in the matter and for 
 lawful disbursements as may be approved by the attorney-gen- 
 eral of the United States, upon a certificate by the judges of 
 said courts stating that such claim for services and disbursements 
 is just and reasonable ; and the sum so allowed shall be paid out 
 of the judiciary fund." 20 " The acts of the legislature of any 
 state or territory, or of any country subject to the jurisdiction 
 of the United States, shall be authenticated b} r having the seals of 
 such state, territory or country affixed thereto. The records 
 and judicial proceedings of the courts of any state or territory, 
 or of any such country shall be proved or admitted in any other 
 court within the United States, by the attestation of the clerk, 
 and the seal of the court annexed, if there be a seal, together 
 with a certificate of the judge, chief-justice, or presiding magis- 
 trate, that the said attestation is in due form. And the said rec- 
 ords and judicial proceedings, so authenticated, shall have such 
 faith and credit given to them in every court within the United 
 States as they have by law or usage in the courts of the state 
 from which they are taken." 21 "All records and exemplifications 
 of books, which may be kept in am T public office of any state or 
 territory, or of any country subject to the jurisdiction of the 
 United States, not appertaining to a court, shall be proved or ad- 
 mitted in any court or office in any other state or territory, or in 
 any such country, by the attestation of the keeper of the said 
 records or books, and the seal of his office annexed, if there be a 
 seal, together with a certificate of the presiding justice of the court 
 of the county, parish, or district in which such office ma} T be kept, 
 or of the governor, or secretary of state, the chancellor or 
 keeper of the great seal, of the state, or territory, or country, 
 that the said attestation is in due form, and by the proper officers. 
 If the said certificate is given by the presiding justice of a court, 
 it shall be further authenticated by the clerk or prothonotary of 
 the said court, who shall certify, under his hand and the seal 
 of his office, that the said presiding justice is duly commissioned 
 and qualified ; or, if given by such governor, secretary, chancel- 
 
 20 TJ. S. R. S. § 904, as amended by Act utes are very numerous, and may be 
 of Jan. 31, 1879, ch. xxxix, § 3 (20 St at found collected in Greenleaf on Evidence, 
 L. 278). §§504-506; Bump's Federal Procedure, 
 
 21 U. S. R. S. § 905. The cases con- 5G5-617. 
 struingr this section of the Revised St;it-
 
 § 268.] ADMISSION OF DOCUMENTARY EVIDENCE. 405 
 
 lor, or keeper of the great seal, it shall be under the great seal 
 of the state, territory, or country aforesaid in which it is made. 
 And the said records and exemplifications, so authenticated, shall 
 have such faith and credit given to them in every court and office 
 within the United States as they have by law or usage in the 
 courts or offices of the state, territory, or country, as aforesaid, 
 from which they are taken." 22 "It shall be lawful for any 
 keeper or person having the custody of laws, judgments, orders, 
 decrees, journals, correspondence, or other public documents of 
 any foreign government or its agents, relating to the title to 
 lands claimed by or under the United States, on the applica- 
 tion of the head of one of the departments, the solicitor of the 
 treasury, or the commissioner of the general land office, to 
 authenticate copies thereof under his hand and seal, and to 
 certify them to be correct and true copies of such laws, judg- 
 ments, orders, decrees, journals, correspondence, or other public 
 documents, respectively ; and when such copies are certified by 
 an American minister or consul, under his hand and seal of office, 
 to be true copies of the originals, they shall be sealed up by him 
 and returned to the solicitor of the treasury, who shall file them 
 in his office, and cause them to be recorded in a book kept for 
 that purpose. A copy of any such law, judgment, order, decree, 
 journal, correspondence, or other public document, so filed, or of 
 the same so recorded in said book, may be read in evidence in 
 any court, where the title to land claimed under or by the United 
 States may come into question, equally with the originals." 23 
 "The edition of the laws and treaties of the United States, pub- 
 lished by Little & Brown, shall be competent evidence, of the 
 several public and private acts of congress, and of the several 
 treaties therein contained, in all the courts of law and equity and 
 of maritime jurisdiction, and in all the tribunals and public offices 
 of the United States, and of the several states, without any fur- 
 ther proof or authentication thereof." 24 " In suits or informations 
 brought, where any seizure is made pursuant to an act providing 
 
 22 U. S. R. S. § 906. See also Snyder cited in Bump's Federal Procedure, G17- 
 
 v. Wise, 10 Pa. St. 157 ; Lawrence v. Gault- 619. 
 
 ney, Cheves Law (S. C), 7 ; King v. Dale, 23 U. S. R. S. § 907. 
 
 2 111. 513 ; Henthorn v. Doe, 1 Blackford 24 U. S. R. S. § 908. See also act of 
 
 (Ind.), 157 ; Russell v. Kearney, 27 Ga 96; June 20, 1874, ch. 333, § 8 (18 St. at L. 
 
 Paca t\ Dutton, 4 Mo. 371 ; Karr v. Jack- 114) ; Act of June 7, 1880, Res. 44 (21 
 
 son, 28 Mo. 316 ; Grant v. Henry Clay St. at L. 308). 
 Coal Co., 80 Pa. St. 208 ; and authorities
 
 406 EVIDENCE AT LAW AND IN EQUITY. [CHAP. XIX. 
 
 for or regulating the collection of duties on imports or tonnage, 
 if the property is claimed by any person, the burden of proof 
 shall lie upon such claimant: provided, that probable cause is 
 shown for such prosecution, to be judged of by the court." 25 
 
 § 269. Definition and Use of an Affidavit. — An affidavit is a 
 declaration upon oath or affirmation before some persons having 
 competent and lawful power and authority to administer the 
 same. Affidavits are used in a suit in equity in three ways. 
 In certain cases they must be annexed to a bill before it can be 
 properly filed ; 1 certain documents may be proved by them at 
 the hearing ; 2 and they are used in support of interlocutory ap- 
 plications. 3 The manner of their use has been already described. 
 It is unsettled whether the court has power to compel any one 
 to have his affidavit taken, 4 or to cross-examine an affiant, 5 ex- 
 cept, possibty, by means of a feigned issue. 
 
 § 270. Manner of Verifying an Affidavit. — An affidavit must 
 be sworn to ; unless the affiant is conscientiously scrupulous of 
 taking an oath, when he may, in lieu thereof, make solemn affir- 
 mation of the truth of the facts stated by him. 1 If the deponent 
 be blind or unable to read, the affidavit must be read over to him 
 by the officer before whom he swears to its truth. 2 An affidavit, 
 if made within the United States, must be verified before a 
 judge of the court in which it is to be used, or a United States 
 commissioner, or a notary public. 3 If made without the United 
 States, it may be verified before any secretary of legation or con- 
 sular officer within the limits of his legation, consulate, or com- 
 mercial agency ; 4 or, perhaps, before any person who, by the laws 
 of the country in which the affidavit is made, is authorized to 
 administer an oath or affirmation. 5 
 
 25 U. S. R. S. § 909. See also Locke v. Boston Belting Co., 6 Law Rep. (n. s.) 
 
 United States, 7 Cranch, 339 ; The Lu- 329. 
 
 minary, 8 Wheat. 407; Wood v. United 5 See Day v. Boston Belting Co., 6 Law 
 
 States, 16 Pet. 342 ; The John Griffin, 15 Rep. (n. s.) 329; Hammerschlag Manuf. 
 
 Wall. 29 ; Clifton ?;. United States, 4 Co. v. Judd, 20 Fed. R. 292. 
 How. 242; Taylor v. United States, 3 §270. i Rule 91 ; U. S.R. S. §§ 1,5013. 
 How. 197; Buckley v. United States, 4 2 Matter of Christie, 5 Paige (N.Y.), 
 
 How. 251; Cliquot's Champagne, 3 Wall. 242. 
 114. 3 U. S. R. S. §§ 725, 945; L. 1876, ch. 
 
 § 269. i See § 87. 304; U. S. R. S. 1st Supp. 251 (19 U. S. 
 
 2 g ee § 269. St. at L. 206) ; Haight v. Morris Aque- 
 
 « See Chapter XV. duct, 4 Wash. C. C. 601. 
 
 4 See Hammerschlag Manufacturing 4 U. S. R. S. §1750. 
 
 Co. v. Judd, 26 Fed. R. 292 ; Bacon v. 5 Pinkerton v. The Barnsley Canal 
 
 Magee, 7 Cowen (N. Y.), 515; Day v. Co., 3 Y. & J. 277 n.
 
 § 272.] FORM OF AN AFFIDAVIT. 407 
 
 § 271. Title of an Affidavit. — An affidavit should be correctly 
 entitled in the cause or matter in which it is made. 1 For, other- 
 wise, it is said that the affiant cannot be convicted of perjury 
 if his statements are false. 2 But, it seems that, if there are sev- 
 eral parties on either side, or both sides, it will be sufficient to 
 entitle it in the name of a single plaintiff and defendant, and 
 after each to insert the word " others " or " another," according 
 to the circumstances of the case. 3 The omission of a party's 
 christian name will not be a fatal defect. 4 If the affidavit is 
 correctly entitled when made, it can still be used after the title 
 of the cause has been subsequently changed. 5 If an affidavit of 
 service be attached to papers which are, themselves, correctly 
 entitled, it needs no separate title. 6 An affidavit made or entitled 
 in one cause cannot, it has been held, be used in another : 7 un- 
 less, perhaps, when the affiant is dead, insane, imbecile, or beyond 
 the jurisdiction of the court. 
 
 § 272. Form of an Affidavit. — Every affidavit should begin with 
 the venire, — that is, the name of the county ; 1 and if sworn to 
 elsewhere than in that where the court is held, with the name of 
 the State where it is taken ; which is usually followed by the ab- 
 breviation Ss. for scilicet, or the English words to wit. Otherwise, 
 it has been held, though not by a Federal court, that it may be 
 disregarded as a nullity, even though the residence of the officer 
 before whom it is sworn appear in the jurat. 2 The English rule 
 was that in all affidavits the true place of residence, description, 
 and addition of every person swearing to the same must be in- 
 serted ; unless the affidavits were made by parties in the cause, 
 who may describe themselves, in the affidavit, as the above-named 
 plaintiff, or defendant, without specifying any residence, or ad- 
 dition, or other description. 3 This rule, however, is not always 
 
 § 271. ! Hawley v. Donnelly, 8 Paige Selye, 3 Denio (N. Y.), 54 ; Stacy v. 
 
 (N. Y.), 415 ; Stafford v. Brown, 4 Paige Farnham, 2 How. Pr. (N. Y.) 2G. But 
 
 (N. Y.), 360. But see Bowman v. Sheldon, see Barnard v. Heydrick, 49 Barb. (N. Y.) 
 
 5 Sand. (N. Y.) 657. 62, 72 ; s. c. 2 Abbott's Pr. n. s. (N. Y.) 
 
 2 Hawley v. Donnelly, 8 Paige (N. Y.), 47 ; Langston v. Wetherell, 14 Mees. & VV. 
 
 415. 104. 
 
 8 White v. Hess, 8 Paige (N. Y.), 544. § 272. * Belden v. Devoe, 12 Wendell 
 
 4 Maury v. Van Arnum, 1 Hill (N. Y.), (N. Y.), 223. 
 
 370. 2 Cook v. Staats, 18 Barb. (N. Y.) 407 ; 
 
 5 Ilawes v. Bamford, 9 Simons, 653. Lane v. Morse, 6 How. Pr. (N. Y.) 394. 
 
 6 Anon., 4 Hill (N. Y.), 597. But see Mosher v. Heydrick. 45 Barb. 
 
 7 Lumbrozo v. White, 1 Dickens, (N. Y.) 549; 8. C. 30 How. Pr. (N. Y.) 161. 
 150; Daniell's Ch. Pr. 1774; Milliken v. 3 Daniell's Ch. Pr. (2d Am. cd.) 1775.
 
 408 EVIDENCE AT LAW AND IN EQUITY. [CHAP. XIX. 
 
 adhered to or insisted upon by practitioners in the courts of the 
 United States. The English rule was that the stating part of 
 the affidavit must be preceded by the statement that the deponent 
 was duly sworn. 4 The affidavit should state "sufficient to sus- 
 tain the case made by the motion or petition of which it is the 
 groundwork." 5 Its statements must be made with sufficient cer- 
 tainty, and with all necessary circumstances of time, place, manner, 
 and other material incidents. 6 When, however, the affiant de- 
 poses to words spoken, the addition " or to that effect " is not 
 improper." Special fulness is required of affidavits of service. 8 
 An affidavit should state facts and not conclusions of law ; 9 and 
 must be pertinent, material, and not scandalous. 10 The court 
 may, upon examination of the paper, order such matter expunged 
 with costs to be paid by the party or solicitor seeking to use the 
 same ; n or a reference may be ordered to determine whether 
 the statements in it are proper. 12 A reference can only be de- 
 manded upon exceptions in writing similar to those to a plead- 
 ing ; 13 and the filing or reading of affidavits in opposition to 
 such parts of his opponent's affidavits as are excepted to may 
 be construed as a waiver of the exceptions. 14 Pending a refer- 
 ence concerning it, an affidavit cannot be used except by leave 
 of the court, which is usually granted only upon terms. 15 
 
 § 273. Execution of an Affidavit. — It is usual, though it Seems 
 not indispensable, for the affiant to subscribe his christian name 
 and surname at the foot of the affidavit. 1 In England the signature 
 had to be on the left side of the page ; 2 but in this country it is 
 usually at the right. In one case where a marksman had signed 
 with his name at length, his hand having been guided for that 
 
 See also Hinde's Pr. 451 ; Crockett v. ™ Daniell's Ch. Pr. (2d Am. ed.) 1777. 
 
 Bishton, 2 Madd. 446. See § 68. 
 
 4 Phillips v. Prentice, 2 Hare, 542; 13 Daniell's Ch Pr. (2d Am. ed.) 1777. 
 Daniell's Ch. Pr. (2d Am. ed.) 1776. See § 68. 
 
 5 Daniell's Ch. Pr. (2d Am. ed.) 1776; 14 Bijkford v. Skewes, 8 Simons, 206; 
 Hinde's Pr. 451 ; Van Wyck v. Reid, 10 Daniell's Ch. Pr. 1777. 
 
 How. Pr. (N. Y.) 366. 15 Pearse v. Brook, 3 Beav. 337; Dan- 
 
 6 Sea. Insurance Co. v. Stebbins, 8 iell's Ch. Pr. 1777. 
 
 Paige (N. Y.), 565; Meach v. Chappell, §273. 1 Haff v. Spicer, 3 Caines 
 
 8 Paige (N. Y.), 135. (N. Y.) 190 ; Jackson ex dem. Kenyon v. 
 
 7 Ayliffe v. Murray, 2 Atk. 58, 60. Virgil, 3 J. R. (X. Y.) 540 ; Soule v. Chase, 
 
 8 Hinde's Pr. 453. 1 Robertson (N. Y.), 222. But see Laim- 
 
 9 Powell v. Kane, 5 Paige (N. Y.),265. beer v. Allen. 2 Sand. (N. Y.) 648. 
 
 10 Powell v. Kane, 5 Paige (N.Y ), 265. 2 Daniell's Ch. Pr. (2d Am. ed.) 1778. 
 
 11 Powell v. Kane, 5 Paige (N. Y.) 265; 
 Ex parte Smith, 1 Atk. 139.
 
 § 274.] COMPETENCY OF WITNESSES. 409 
 
 purpose, the affidavit was ordered taken off the file. 3 The jurat, 
 which is indispensable, is placed upon the opposite side from the 
 signature. It is usually in substantially the following form : 
 " Sworn to before me this day of , 18 ." If the 
 
 affiant be blind or a marksman, the jurat should be in substance 
 thus : " Sworn, &c, the whole of the above affidavit having been 
 first read over and explained to the said A. B., who appeared 
 perfectly to understand the same, he made his mark in my pres- 
 ence." 4 If the affiant have been previously found by the inquisi- 
 tion of a jury to be an idiot, a lunatic, or imbecile, the officer 
 before whom the affidavit is sworn should state in the jurat that 
 he has examined the deponent for the purpose of ascertaining the 
 state of his mind, and that the latter was apparently of sound 
 mind and capable of understanding the nature and contents of 
 the affidavit. 5 The omission of the addition to the officer's signa- 
 ture of his title, 6 and even the omission of his signature, will not, 
 it seems, be a fatal defect. 7 It is usual and more prudent, even 
 if not absolutely essential, for the officer to mark with his initials 
 all interlineations and erasures in the body of the affidavit. 8 
 
 § 274. Competency of Witnesses. — The testimony of witnesses 
 may be taken either solely for use in the court taking the same, 
 or for use in other courts as well. The same rules as to compe- 
 tency prevail at law and in equity. 1 The Revised Statutes pro- 
 vide that, " in the courts of the United States, no witness shall 
 be excluded in any action on account of color, or in any civil 
 action because he is a party or interested in the issue tried : 
 provided, that in actions by or against executors, administra- 
 tors, or guardians, in which judgment may be rendered for or 
 against them, neither party shall be allowed to testify against the 
 other, as to any transaction with, or statement by, the testator, 
 intestate, or ward, unless called to testify thereto by the oppo- 
 site party, or required to testify thereto by the court. In all 
 other respects, the laws of the state in which the court is held 
 shall be the rules of decision as to the competency of witnesses 
 
 8 v. Christopher, 11 Simons, 400. » Chase v. Edwards, 2 Wend. (N. Y.) 
 
 * Daniell's Ch. Pr. (2d Am. ed.) 1776; 283. 
 Matter of Christie, 5 Paige (N. Y.),242. 8 Daniell's Ch. Pr. (2d Am ed.) 1777 ; 
 
 5 Matter of Christie, 5 Paige (N. Y.), Didier v. Warner, 1 Code R. (N. Y.) 42. 
 242. § 274. 1 Cornett v. Williams, 20 Wall. 
 
 8 Hunter v. Le Conte, 6 Cowen (N. Y.), 226. 
 728 ; People v. Rensselaer Common Pleas, 
 6 Wend. (N.Y.) 643.
 
 410 EVIDENCE AT LAW AND IN EQUITY. [CHAP. XIX. 
 
 in the courts of the United States in trials at common law, and 
 in equity and admiralty." 2 This section has been said to be 
 remedial, and to deserve, therefore, a liberal construction. 3 It 
 applies as well to causes to which the United States is a party 
 as to those between private persons ; 4 it allows a party to testify 
 in his own behalf, as well as when called upon by the other ; 5 and 
 it does not prevent a person not a party, but interested in the 
 result of a suit, from testifying against an executor in a case 
 when, if a party, he could not do so. 6 It does not allow a wife 
 to testify in behalf of, or against, her husband, unless the laws of 
 the State permit her so to do. 7 For her incompetency by the 
 common law was due not to interest, but to grounds of public 
 policy. 8 The cases where the court will require a party to tes- 
 tify, when otherwise he would not be obliged or allowed so to 
 do, are rare. The court will usually only do so upon its own 
 motion, and if upon his suggestion, only after hearing the other 
 party, if the latter object. 9 The court will do so, however, 
 when a party has died after his testimony has been taken and 
 before trial, and his administrator insists upon reading or sub- 
 mitting his testimony at the hearing. 10 The court will, it seems, 
 not require such testimony to be taken, if by so doing it would 
 adopt a rule of decision for a Federal court different from that 
 prescribed by the legislature for courts of the State wherein it is 
 held. 11 If there are several defendants, one of whom has a similar 
 interest in the result to that of the complainant, he cannot, by 
 requiring the latter to testify, obviate the effect of the proviso in 
 this statute. 12 It seems that the admissions of a party are com- 
 petent evidence against him, even though, upon his cross-exami- 
 nation, when testifying in his own behalf, he was not asked if he 
 made them. 13 It has been held, in actions at common law, that 
 the testimony of a physician as to information acquired while 
 attending a patient in a professional capacity, when forbidden by 
 the statutes of the State, should not be admitted in the Federal 
 
 2 U. S. R. S. § 858 ; James v. Atlan- 6 Potter v. Third National Bank, 13 
 tic Delaine Co., 3 Cliff. 614. Chic. L. N. 102. 
 
 3 Texas v. Chiles, 21 Wall. 488. 7 Lucas v. Brooks, 18 Wall. 436. 
 * Green v. United States, 9 Wall. 655. 8 Lucas v. Brooks, 18 Wall. 436. 
 
 Contra, Jones v. United States, 1 Ct. CI. 9 Eslava v. Mazange, 1 Woods, 623. 
 
 383. 10 Mumm v. Owens, 2 Dill. 475. 
 
 5 Texas v. Chiles, 21 Wallace, 488 ; u Robinson v. Mandell, 3 Cliff. 169. 
 
 Railroad Co. v. Pollard, 22 Wallace, 12 Eslava v. Mazange, 1 Woods, 623. 
 341. 13 The Stranger, 1 Brown's Adm. 281.
 
 § 275.] SUBPOENAS AD TESTIFICANDUM. 411 
 
 court there held ; 14 that when a State statute authorized the 
 admissibility in evidence of a notarial certificate of a form 
 inadmissible at common law, 15 or of the endorsement of negoti- 
 able paper without proof of handwriting, 16 the Federal court 
 there held should follow such statutes ; but that a State statute 
 excluding the testimony of a witness on account of his interest 
 in the controversy should be disregarded. 17 
 
 § 275. Subpoenas ad Testificandum. — The attendance of a wit- 
 ness is usually compelled in equity as in law by the service of a 
 subpoena ad testificandum, and the payment of his fees and mile- 
 age. 1 A subpoena ad testificandum is substantially in the same 
 form in equity as in law. When issued from a court of the 
 United States, it must be under the seal of the court, and signed 
 by the clerk ; and is usually also signed by the solicitors of the 
 party at whose request it issues. Those issued from the Supreme 
 Court or a Circuit Court must bear teste from the day of such 
 issue of the Chief Justice of the United States, or, when that 
 office is vacant, of the associate justice next in precedence. 2 
 Those issuing from a District Court must bear teste of the judge, 
 or when that office is vacant, of the clerk thereof. 3 By the com- 
 mon law, the names of but three witnesses could be included in 
 one subpoena. 4 The Revised Statutes, however, provide that, " to 
 save unnecessary expense, it shall be the duty of the clerk to 
 insert the names of as many witnesses in a cause in such sub- 
 poena as convenience in serving the same may require." 5 If 
 the witness can be served within the jurisdiction of the court 
 where the suit is pending, or within a hundred miles of the place 
 of holding that court, the subpoena may be issued from its clerk's 
 office. 6 If he cannot, and it is desired to take his testimony de 
 bene esse under the acts of Congress, 7 application for the issue 
 of the subpoena must be made to the court of the district in 
 which the examination is to be made. 8 
 
 14 Conn. Mutual Life Ins. Co. v. Union * Erwin v. United States, 37 Fed. R. 
 Trust Co., 112 U. S. 250. 470, 490. 
 
 1 5 Sims v. Hundley, G How. 1. 5 U. S. R. S. § 829. Erwin v. United 
 i° McNiel t>. Holbrook, 12 Pet. 84. States, 37 Fed. R. 470, 490. 
 
 « Potter v. National Bank, 102 U. S. 6 U. S. R. S. § 870. 
 
 103 ; Goodwin v. Fox, 129 U. S. G01, 7 See §§ 286-287. 
 
 631. 8 U. S. R. S. § 863; United States v. 
 
 §275. > For the amount of his fees Tilden, 25 Internal Rev R.352; Ex parte 
 
 and mileage, see § 333. Humphrey, 2 Blatchf. 228 ; Henry v. 
 
 2 U.S. R. S. §§ 911, 912. Ricketts, 1 Cranch C. C. 580; Ex parte 
 
 » U. S. R. S. §§ 911, 912. Elisha Peck, 3 Blatchf. 113.
 
 412 EVIDENCE AT LAW AND IN EQUITY. [CHAP. XIX. 
 
 § 276. Service of a Subpoena ad testificandum. — A subpoena 
 to appear and testify may be served by the marshal of the court, 
 or by any other person acting as the agent of the party calling 
 the witness. 1 The Revised Statutes provide that " subpoenas for 
 witnesses who are required to attend a court of the United States, 
 in any district, may run into any other district : provided, That 
 in civil causes the witnesses living out of the district in which 
 the court is held do not live at a greater distance than one hun- 
 dred miles from the place of holding the same." 2 A witness' 
 attendance at a court more than one hundred miles from the 
 place where he lives cannot be compelled by the service of a 
 subpoena upon him within the district, when he has been enticed 
 there by false pretences ; 3 or while there to attend either as a 
 party, a witness, an attorney, or a counsel during a suit or other 
 judicial proceeding in a State 4 or Federal court ; 5 or, while travel- 
 ling upon his way to or from Congress, if he be a member thereof; 6 
 or if there in the course of the performance of any public duty. 7 
 The courts of the United States have no power to compel the 
 attendance of persons to an examination in a foreign country. 
 Such testimon}*, therefore, can only be taken against the will of 
 a witness by the aid of, and by means of, the remedies adminis- 
 tered by a foreign court. 8 
 
 § 277. Compelling a "Witness to testify. — When a witness, who 
 has been properly served with a subpoena, refuses to attend, or 
 when upon his examination he refuses to answer a relevant and 
 proper question, against answering which he is not protected by 
 his privilege, by the old rules he was liable " to be proceeded 
 against in three ways : first, by attachment for a contempt of the 
 process of the court ; secondly, by a special action on the case 
 for damages at common law ; and thirdly, by action on the 
 statute 5 Eliz. c. 9, § 12, for the further recompence given by 
 
 § 276. 1 Schwabacker v. Reilly, 2 Dill. 4 Juneau Bank v. M'Speda, 5 Biss. 
 
 127 ; Cummings v. The Akron Cement & 64; Matthews v. Tufts, 87 N.Y. 568. But 
 
 Plaster Co., 6 Blatchf . 509 ; Miller v. see Blight v. Fisher, Pet. C. C. 41. 
 Scott, 6 Phila. (Pa.) 484; Power v. 5 Parker v. Hotchkiss, 1 Wall. Jr. 269 ; 
 
 Semmes, 1 Cranch C. C. 247. Matthews v. Tufts, 87 N. Y. 568. Contra, 
 
 2 U. S. R. S § 876 ; Ex parte Beebees, Blight v. Fisher, Peters' Circuit Court 
 2 Wall. Jr. 127 ; Henry v. Ricketts, 1 Reports, 41. 
 
 Cranch C. C. 580; United States v. W T il- 6 Constitution Art. I. § 6 ; Miner v. 
 
 liams, 4 Cranch C. C. 372. Markham, 28 Fed. R. 387. 
 
 3 Union Sugar Refinery Co. v. Mathies- 7 See §98. 
 son, 2 Cliff. 304 ; Steiger v. Bonn, 4 Fed. 8 § 290. 
 R. 17.
 
 § 279.] BILLS TO PERPETUATE TESTIMONY. 413 
 
 that statute, if it has been previously assessed by the court out 
 of which the process issued." 1 In the Federal courts a witness, 
 if contumacious, may be punished for contempt, 2 and is also prob- 
 ably liable to an action for the damages sustained by his refusal. 
 Upon an application to punish a witness for refusing to answer 
 a question, the power of the officer before whom he is examined 
 and the materiality of the question may both be considered. 3 
 The rules concerning the privileges of witnesses and the materi- 
 ality and relevancy of evidence, are substantially the same in 
 equity as at law. 4 Care will be taken not to compel a witness to 
 needlessly disclose his business secrets 5 and private papers. 6 
 
 § 278. Testimony taken in Equity which may be used in other 
 Courts. — Testimony may be taken in a court of equity for use in 
 other courts, as well as for its own use, by bills to perpetuate 
 testimony 1 and bills to take testimony de bene esse; 2 and formerly, 
 at least, testimony could be taken in a court of equity for use in 
 another court by a bill of discovery. 3 
 
 § 279. Bills to perpetuate Testimony. — " In any case where it 
 is necessary, in order to prevent a failure or delay of justice, any 
 circuit court, upon application to it as a court of equity, may, 
 according to the usages of chancery, direct depositions to be 
 taken in perpetuam rei memoriam, if they relate to any matters 
 that may be cognizable in any court of the United States." x In 
 order to obtain such a direction, the party wishing the testimony 
 taken should file a bill to perpetuate testimony. 2 A bill to per- 
 petuate testimony must contain all the facts necessary to give the 
 court jurisdiction. It must state with reasonable certainty the 
 subject-matter touching which the plaintiff is desirous of taking 
 testimony, 3 and show that it is a matter which may be cognizable 
 in a court of the United States. 4 It should also show that the 
 plaintiff has some interest in the subject-matter, which may be 
 endangered if the testimony in support of it is lost. A mere 
 
 § 277. » Tidd's Pr. 738. 2 § 280. 
 
 2 U. S. R. S. § 725. 8 § 281. 
 
 8 Ex parte Peck, 3 Blatchf . 113 ; Ex § 279. » U. S. R. S. § 866. 
 
 parte Judson, 3 Blatclif. 89. 2 New York & Baltimore Coffee Pol- 
 
 4 Stevens v. Cooper, 1 J. Ch. (N. Y.) ishing Co. v. New York Coffee Polishing 
 425. Co., 9 Fed. R. 578. 
 
 5 Robinson v. Phila., &c. R. R. Co., 3 Story 's Eq. PI. §§300,305. 
 
 28 Fed. R. 340, 342. * U. S. It. S. § 868 ; New York & Bal- 
 
 6 Henry v. Travelers' Ins. Co., 35 Fed. timore Coffee Polishing Co. v. New York 
 R 15. Coffee Polishing Co., 9 Fed R. 578. But 
 
 § 278. ! § 279. see Morris v. Morris, 2 Phill. 205, 208.
 
 414 EVIDENCE AT LAW AND IN EQUITY. [CHAP. XIX. 
 
 expectancy, however strong and well-founded, is not sufficient. 
 It has been said, " Put the case as high as possible ; that the party, 
 seeking to perpetuate the testimony, is the next of kin of a luna- 
 tic ; that the lunatic is intestate ; that he is in the most helpless 
 state, a moral and physical impossibility, (though the law would 
 not so regard it,) that he should ever recover ; even if he were in 
 articulo mortis, and the bill was filed at that instant ; still, the 
 plaintiff could not qualify himself to maintain it, as having any 
 interest in the subject of the suit." 5 If, however, the interest be 
 such a one as may be immediately barred by the party against 
 whom the bill is brought, it has been said that the court will 
 withhold its assistance, for it would be a fruitless exercise of 
 power. 6 Such a bill must also show that the defendant has, or 
 claims to have, a title or interest in opposition to that of the 
 plaintiff in the subject-matter of the proposed testimony, 7 as, for 
 example, that the defendant claims an exclusive right to the use 
 of a process which the plaintiff is using, and rests his claim upon 
 letters-patent which the proposed testimony will show to be 
 invalid ; 8 and some ground of necessity for perpetuating the evi- 
 dence, as that the facts, to which the testimony of the witnesses 
 proposed to be examined relate, cannot be immediately investi- 
 gated in a court of law or equity, — or, if they can be immediately 
 investigated, that the right to commence such a suit or action 
 belongs exclusively to the defendant; or that the defendant has 
 interposed some impediment, such as an injunction, to an imme- 
 diate trial of the matter in a court of law ; or that, before the 
 investigation can take place, the evidence of a material witness 
 is likely to be lost by his threatened death, illness, or departure 
 from the jurisdiction of the court : 9 but the fact that, in the case 
 recently cited, the attorney-general might institute a proceeding 
 to annul a patent, will not prevent the granting of the prayer of 
 the bill. 10 The prayer should be for leave to examine the wit- 
 nesses touching the matter stated, to the end that their testi- 
 mony may be preserved and perpetuated, and for the proper 
 
 5 Dursley v. Fitzhardinge, 6 Ves. 260. New York & Baltimore Coffee Polish- 
 
 6 Dursley v. Fitzhardinge, 6 Ves. 261- ing Co. v. New York Coffee Polishing 
 263. Co., 9 Fed. R. 578 ; Story's Eq. PI. § 303 ; 
 
 1 Story's Eq. PI. § 302. Daniell's Ch. Pr. 1572, 1573. 
 
 8 New York & Baltimore Coffee Pol- 10 New York & Baltimore Coffee Pol- 
 ishing Co v. New York Coffee Polishing ishing Co. v. New York Coffee Polishing 
 Co., 9 Fed. R. 578. Co., 9 Fed. R. 578. 
 
 9 Angell v. Angell, 1 Sim. & S. 83 ;
 
 § 279.] BILLS TO PERPETUATE TESTIMONY. 415 
 
 process of subpoena. 11 It seems that if it adds thereto a prayer 
 for other, or for general relief, it will be demurrable for that 
 reason, 12 although the court may allow an amendment omitting 
 that part of the prayer. 13 An affidavit of the circumstances by 
 which the evidence intended to be perpetuated is in danger of 
 being lost, must be filed with the bill. 14 Otherwise, the bill 
 should conform substantially to the requirements of original 
 bills praying relief. Such a bill, it has been held, cannot by 
 amendment be converted into a bill of discovery. 15 It is of itself 
 a bill of discovery only to the extent of enabling the plaintiff to 
 obtain the relief prayed for in it, and he can, therefore, only 
 require an answer from the defendant as to the facts alleged in 
 the bill as entitling him to examine the witnesses. 16 An omission 
 of any of the foregoing statements in, or requirements of, the bill 
 will make it demurrable ; and if any of the necessary allegations 
 are false, or there is another objection not apparent upon the 
 face of the bill, that may be taken by plea or answer. 17 If the 
 defendant answer denying the plaintiff's case, witnesses may be 
 examined as to the points in issue by either party. 18 Otherwise, 
 such a bill should not be brought to a hearing, and if the plain- 
 tiff do so it will be dismissed with costs, but without prejudice to 
 the use of the testimony taken in pursuance of its prayer. 19 It is 
 said that " If the plaintiff neglects to proceed with the suit, the 
 defendant cannot move to dismiss for want of prosecution ; but 
 may move that the plaintiff be ordered to take the next step, 
 within a limited time, or to pay him the costs of the suit. If the 
 defendant neglects to take the steps proper to be taken by him 
 within the prescribed time the court will, it seems, order the 
 examination of the witnesses to proceed." 20 If no valid objection 
 is made, the court will order the testimon} 7 to be taken. Both 
 
 11 Story's Eq. PI. § 306. " Story's Eq. PI. § 306 a. 
 
 12 Rose v. Gannel, 3 Atk. 439 ; Vaughan 18 Brigstocke v. Roch, 7 Jur. n. s. 63. 
 V. Fitzgerald, 1 Sch. & Lef. 316 ; Story's 19 Hall v. Hoddesdon, 2 P. Wms. 102 ; 
 Eq. PI. § 306; Dalton v. Thomson, 1 Anon., Ambler, 237 : s. c. 2 Ves. Sen. 497 ; 
 Dickens, 97. But see Rule 21. Vaughan v. Fitzgerald, 1 Sch. & Lef. 316 ; 
 
 13 Vaughan v. Fitzgerald, 1 S. & L. 316. Morrison v. Arnold, 19 Ves. 670 ; Ellice v. 
 11 Earl of Suffolk v. Green, 1 Atk. 450 ; Roupell, 32 Beav. 308. 
 
 Philips v. Carew, 1 P. Wms. 117 ; Shirley 20 Daniell's Oh. Pr. (5th Am. ed.) 1573 ; 
 
 v. Earl Ferrers, 3 P. Wns. 77. Wright v. Tatham, 2 Simons, 459 ; Beavan 
 
 1& Ellice v. Roupell, 32 Beav. 299 ; 8. c. v. Carpenter, 11 Simons, 22; Coveny r. 
 
 9 Jur. n. a. 530. Athill, 1 Dickens, 355 ; Lancaster r. Lan- 
 
 16 Ellice v. Roupell, 32 Beav. 308 ; s. c. caster, 6 Simons, 439. 
 9 Jur. n. s. 533.
 
 416 EVIDENCE AT LAW AND IN EQUITY. [CHAP. XIX. 
 
 parties may examine witnesses under the order, 21 and either party- 
 must be allowed to cross-examine those whom his opponent ex- 
 amines in chief. 22 After the witnesses have been examined the 
 cause is at an end, 23 and if the defendant have examined no wit- 
 nesses in chief he will be entitled to his costs ; but by receiving 
 costs he waives any objection he might otherwise be entitled to 
 make on the ground that he has had no sufficient opportunity 
 of cross-examination. 24 The testimony thus taken is filed in the 
 clerk's office, and can be used in a subsequent case at law or 
 in equity in the same court, under an order, which must be 
 obtained by motion upon notice, and supported by proof of the 
 witness's death or that he cannot be then compelled to attend 
 and testify. 25 
 
 § 280. Bills to take Testimony de bene esse. — Bills to take tes- 
 timony de bene esse were formerly filed after a suit or action had 
 been begun, in order to take the testimony of such witnesses as, 
 on account of their age, infirmity, or intention to depart from the 
 jurisdiction of the court, it was feared could not be taken in its 
 regular method of proceeding. 1 Such bills must substantially 
 comply with the rules regulating bills to perpetuate testimony, 
 with which, indeed, they have been often confounded. 2 Now 
 that the same relief can be afforded under the statutes both of 
 most of the individual States and of the United States, 3 it is 
 rarely, if ever, that an occasion for their use arises. 
 
 § 281. Bills of Discovery. — Every bill may seek discovery, 
 but the kind of bill called a bill of discovery is a bill filed for the 
 sole purpose of obtaining a discovery of facts resting in the 
 defendant's knowledge, or of deeds, writings, or other things in 
 his custody or power; and seeking no relief in consequence of 
 the discovery, except possibly a stay of proceedings till the dis- 
 covery is made. 1 A bill of discovery is usually, if not always, 
 used in aid of the jurisdiction of another court. 2 It will not be 
 
 21 Sheward v. Sheward, 2 V. & B. 116 ; » Darnell's Ch. Pr. (5th Am. ed.) 1574, 
 Earl of Abergavenny v. Powell, 1 Meriv. 1575. 
 
 434 ; Skrine v. Powell, 15 Simons, 81 ; § 280. I Story's Eq. PI. § 307. 
 8. c. 9 Jur. 1054 2 Story's Eq. PI. § 307. 
 
 22 Daniell'sCh. Pr. (5th Amed.), 1573, 3 U. S. R. S. §§863-865, and Rule 
 1574. . 70. 
 
 23 Morrison v. Arnold, 19 Ves. 670; §281. » Daniell's Ch. Pr. (5th Am. 
 Vaughan v. Fitzgerald. 1 Sch. & Lef. 316. ed.) 1556. 
 
 24 Watkins v. Atchison, 10 Hare, Ap. 2 Daniell's Ch. Pr. (5th Am. ed.) 
 xlvi. 1556.
 
 § 281.] BILLS OF DISCOVERY. 417 
 
 allowed, if it seek a discovery of matters concerning which a 
 part}', if called as a witness, would be excused from testifying ; 3 
 nor, it has been said, if the discovery is sought in aid of an action 
 for a mere personal tort. 4 A bill of discovery can only be filed in 
 aid of a judicial proceeding already commenced or immediately 
 contemplated. 5 If filed in aid of proceedings already begun, no 
 person may be made a party to it who is not a party to such pro- 
 ceedings, 6 except possibly the officer of a corporation. 7 A bill of 
 discovery must state the matter touching which discovery is 
 sought, show that both the plaintiff and the defendant have or 
 claim an interest therein, state the facts and circumstances upon 
 which the plaintiff's right to compel discovery from the defendant 
 is founded, and pray that the defendant may make a full dis- 
 covery of the matters therein stated. 8 A bill of discovery may 
 also pray any equitable assistance of the court which is merely 
 consequential upon the prayer for discovery; 9 but if it should 
 pray any other or general relief, it will thereby become a bill for 
 relief. 10 It seems that a bill of discovery need not allege that 
 the facts of which a discovery is sought are within the exclusive 
 knowledge of the defendant; 11 but they must be matters essen- 
 tial to a plaintiff's cause of action, or if he be defendant in 
 another suit or action, his affirmative defense, and the bill must 
 not seek discovery of the evidence of a part of what belongs 
 solely to the defendant's case. 12 The defendant may oppose a 
 bill of discovery by a demurrer, or plea, or in his answer, in the 
 same manner as he might oppose a bill for relief. The English 
 rule, as finally established, was that, if a demurrer were inter- 
 posed to a bill praying both discovery and relief, and the bill 
 were held not to show a proper case for relief, it could not be 
 maintained for discovery merely. 13 The rule in the Federal 
 
 » Glynn v. Houston, 1 Keen, 329; B Darnell's Ch. Pr. (5th Am. ed.) 1557. 
 
 Langdell's Eq. PI. § 69; Wigram on 9 Mitford's Eq. PI. ch. i. § 3; Loker v. 
 
 Discovery, §§ 1:50-138 ; Daniell's Ch. Pr. Rolle, 3 Ves. 4. 
 
 (2d Am. ed.) 563-569. " Angell v. Westcombe, 6 Simons, 
 
 4 Glynn v. Houston, 1 Keen, 329. 30. 
 
 5 Mayor of London v. Levy, 8 Ves. u Metier v. Metier, 4 C. E. Green (19 
 398 ; United N. J. Railroad & C. Company N. J. Eq.), 457. 
 
 w. Hoppock. 1 Stewart's Eq. (N. J.) 261 ; 12 Wigram on Discovery, § 372; Lang- 
 
 Daniell's Ch. Pr. 1558. dell's Eq. PI. § 172; Ingilby v. Shafto, 
 
 6 Queen of Portugal v. Glyn, 7 CI. & 33 Beav. 31. 
 
 F. 466; Daniell's Ch. Pr. (5th Am. ed.) 13 Fry v. Penn, 2 Pro. C. C. 280 ; Loker 
 
 1558. v. Rolle, 3 Ves. 4; Langdell's Eq. PL 
 
 ' See § 43. § 152. 
 
 27
 
 418 EVIDENCE AT LAW AND IN EQUITY. [CHAP. XIX. 
 
 courts is uncertain. 14 A defense founded upon the statute of 
 limitations or laches may be interposed to a bill of discovery by 
 plea, 15 or, if it appear upon the face of the bill, by demurrer. 16 
 A material amendment of a bill of discovery will very rarely be 
 allowed. 17 A bill of discovery is never brought to a hearing ; but, 
 after the defendant has put in a full answer thereto, he is enti- 
 tled to costs of the suit, 18 less any costs allowed the plaintiff upon 
 exceptions to a previous answer as insufficient. 19 It has been 
 held in the District of Wisconsin that a bill of discovery cannot 
 be maintained in a Circuit Court of the United States held 
 within a State under whose statutes a party can be compelled to 
 testify. 20 In the Southern District of New York a contrary rul- 
 ing sustaining such a bill was made. 21 
 
 § 282. Testimony taken before a Cause is at Issue. — Testimony 
 for use in a court of law or equity of the United States may be 
 taken either before or after it is at issue. Testimony taken 
 before a cause is at issue may be taken either before or after it 
 has been begun. " Any court of the United States may, in its 
 discretion, admit in evidence in any cause before it any deposi- 
 tion taken in perpetuam rei memoriam, which would be so ad- 
 missible in a court of the State wherein such cause is pending, 
 according to the laws thereof." 1 Evidence taken by means of a 
 bill to perpetuate testimony may also be admitted in a subse- 
 quent suit in equity. 2 " After any bill filed and before the 
 defendant hath answered the same, upon affidavit, made that 
 any of the plaintiff's witnesses are aged and infirm, or going out 
 of the country, or that any one of them is a single witness to a 
 material fact, the clerk of the court shall, as of course, upon 
 application of the plaintiff, issue a commission to such commis- 
 sioner or commissioners as a judge of the court may direct, to 
 take the examination of such witness or witnesses de bene esse, 
 
 14 Compare Livingston v. Story, 9 Pet. 18 Attorney-General i>. Burch, 4 Madd. 
 632 ; Wright v. Dame, 1 Met. (Mass ) 237 ; 178. 
 
 Higinbotham v. Burnet, 5 J. Ch. (N. Y.) " Hughes v. Clerk, 6 Hare, 195. 
 
 184 ; Story's Eq. PI. § 412 : with Markey 20 Rindskopf v. Platto, 29 Fed. R. 130. 
 
 v. Mutual Benefit Life Ins. Co., 6 Ins. L. J. See also Heath v. Erie Ry. Co., 9 Blatchf. 
 
 537. 316 ; Brown v. Swann, 10 Pet. 497. 
 
 15 Beames on Pleas, 275 ; Gait v. Os- 21 Colgate v. Compagnie Franeaise, 23 
 baldeston, 1 Russ. 158. Fed. R. 82. 
 
 is Wooster v. Sidenbergh, U. S. C. C. § 282. » U. S. R. S. § 867. 
 
 S. D. N. Y. Nov. 6, 1889. 2 New York & Baltimore Coffee Polish- 
 
 17 Marquis Cholmondeley r. Lord Clin- ing Co. v. New York Coffee Polishing Co., 
 
 ton, 2 Meriv. 71. 9 Fed. R. 578.
 
 § 283.] TESTIMONY TAKEN AFTER ISSUE JOINED. 419 
 
 upon giving due notice to the adverse party of the time and place 
 of taking his testimony." 3 Such testimony is then taken in the 
 same manner as testimony taken after issue has been joined. 
 
 S 283. Testimony taken after a Cause is at Issue within the Juris- 
 diction of the Court. — Testimony taken after a cause is at issue 
 is taken differently when taken within than when taken without 
 the jurisdiction of the court. Originally, the only manner of 
 examining witnesses within the jurisdiction of a Court of Chan- 
 cery was by means of written interrogatories and cross-interroga- 
 tories, which were prepared by the solicitors and counsel of the 
 respective parties or by the court, and then submitted to an 
 examiner or one or more commissioners appointed by the court, 
 who examined the witnesses privately by means of them. The 
 testimony thus obtained was kept secret until all the testimony 
 in the cause had been taken. The time when it would first be 
 inspected was called the time of publication. 1 In the courts of 
 the United States it seems that originally the only method of 
 examination in equity was by commissioners. It was regulated 
 by the following rules : — 
 
 " After the cause is at issue, commissions to take testimony 
 may be taken out in vacation as well as in term, jointly by both 
 parties, or severally by either party, upon interrogatories filed by 
 the party taking out the same in the clerk's office, ten days' 
 notice thereof being given to the adverse party to file cross-inter- 
 rogatories before the issuing of the commission ; and if no 
 cross-interrogatories are filed at the expiration of the time, the 
 commission may issue ex parte. In all cases, the commissioner or 
 commissioners shall be named by the court, or by a judge thereof. 
 If the parties shall so agree, the testimony may be taken upon 
 oral interrogatories by the parties or their agents, without filing 
 any written interrogatories." 2 In 1851 it was " ordered, that the 
 sixty-seventh rule governing equity practice be so amended as to 
 allow the presiding judge of any court exercising jurisdiction, 
 either in term time or in vacation, to vest in the clerk of said court 
 general power to name commissioners to take testimony in like 
 manner that the court or judge thereof can now do by the said 
 sixty-seventh rule." 3 " Three months, and no more, shall be 
 
 8 TCule 70. 2 Rule 67. In 1861 the last paragraph 
 
 § 283. ' Langdell's Equity Pleading, of this rule was repealed. 
 55 56-58. 8 Amendment of 1854 to Rule 67.
 
 420 EVIDENCE AT LAW AND IN EQUITY. [CHAP. XIX. 
 
 allowed for the taking of testimony after the cause is at issue, 
 unless the court, or a judge thereof, shall, upon special cause 
 shown by either party, enlarge the time ; and no testimony taken 
 after such period shall be allowed to be read in evidence at the 
 hearing. Immediately upon the return of the commissions and 
 depositions containing the testimony into the clerk's office, pub- 
 lication thereof may be ordered in the clerk's office, by any judge 
 of the court, upon due notice to the parties, or it may be enlarged, 
 as he may deem reasonable under the circumstances ; but, by 
 consent of the parties, publication of the testimony may at any 
 time pass into the clerk's office, such consent being in writing, 
 and a copy thereof entered in the order-books, or endorsed upon 
 the deposition or testimony." 4 This method of taking testi- 
 mony was, like many other parts of equity practice, borrowed 
 from the canon law. But with this difference, however, that 
 whereas by the canon law each party before the examination of 
 witnesses was obliged to furnish his adversary and the court 
 with articles containing a specific statement of the facts which he 
 expected to prove by them ; in equity, on the other hand, except 
 in a few rare instances, facts, not evidence, are required to be 
 pleaded. Consequently, originally, each party was before publi- 
 cation very much in the dark as to the facts which his antagon- 
 ist intended to attempt to establish. " It is not surprising, 
 therefore, that the mode of taking testimony in equity fell into 
 disrepute, and finally broke down." 5 
 
 § 284. Present Method of taking Testimony ■within the Jurisdic- 
 tion. — Testimony in equity is now, therefore, almost universally 
 allowed to be taken orally in the presence of counsel. The rules 
 regulating the practice of the courts of the United States upon 
 the subject are as follows : " Either party may give notice to the 
 other that he desires the evidence to be adduced in the cause to 
 be taken orally, and thereupon all the witnesses to be examined 
 shall be examined before one of the examiners of the court, or 
 before an examiner to be specially appointed by the court, the 
 examiner to be furnished with a copy of the bill and answer, if 
 any; and such examination shall take place in the presence of 
 the parties or their agents, by their counsel or solicitors, and the 
 witnesses shall be subject to cross-examination and re-examina- 
 
 « Rule 69. 
 
 6 Langdell's Eq. PI. § 56. See also Langdell's Eq. PI. §§ 14-19.
 
 § 284] TESTIMONY TAKEN WITHIN THE JURISDICTION. 421 
 
 tion, and which shall be conducted as near as may be in the 
 mode now used in the common-law courts. The depositions 
 taken upon such oral examinations shall be taken down in writ- 
 ing by the examiner in the form of a narrative, unless he deter- 
 mines the examination shall be by question and answer in special 
 instances ; and, when completed, shall be read over to the wit- 
 ness and signed by him in the presence of the parties or counsel, or 
 such of them as may attend ; provided if the witness shall refuse 
 to sign the said deposition, then the examiner shall sign the same ; 
 and the examiner may, upon all examinations, state any special 
 matter to the court as he shall see fit ; and any question or ques- 
 tions which may be objected to shall be noted by the examiner 
 upon the deposition, but he shall not have power to decide on 
 the competency, materiality, or relevancy of the questions ; and 
 the court shall have power to deal with the costs of incompetent, 
 immaterial, or irrelevant depositions, or parts of them, as may be 
 just." * " In case of refusal of witnesses to attend, to be sworn, 
 or to answer any question put by the examiner, or by counsel or 
 solicitor, the same practice shall be adopted as is now practised 
 with respect to witnesses to be produced on examination before 
 an examiner of said court on written interrogatories. Notice 
 shall be given by the respective counsel or solicitors, to the oppo- 
 site counsel or solicitors, or parties, of the time and place of the 
 examination, for such reasonable time as the examiner may fix 
 by order in each cause. When the examination of witnesses be- 
 fore the examiner is concluded, the original deposition, authenti- 
 cated by the signature of the examiner, shall be transmitted by 
 him to the clerk of the court, to be there filed of record, in the 
 same mode as prescribed in the thirtieth section of Act of 
 Congress, September 24, 1789. 2 Testimony may be taken on 
 commission in the usual way, by written interrogatories and 
 cross-interrogatories, on motion to the court in term time, or to a 
 judge in vacation, for special reasons satisfactory to the court or 
 judge." 3 "Where the evidence to be adduced in a cause is to 
 be taken orally, as provided in the order passed at the December 
 term, 1861, amending the 67th General Rule, the court may, on 
 motion of either party, assign a time within which the complain- 
 
 §284. i Amendment of 1861 to Rule 67. 2 See §§ 286, 287, and U. S. R. S. 
 
 Interrogatories may be referred to a mas- § 865. 
 
 ter for an inquiry into their relevancy. 8 Amendment of 18G1 to Rule 67. 
 
 Zunkel v. Litchfield, 21 Fed. R. 196.
 
 422 EVIDENCE AT LAW AND IN EQUITY. [CHAP. XIX. 
 
 ant shall take his evidence in support of the bill, and a time 
 thereafter within which the defendant shall take his evidence in 
 defence, and a time thereafter within which the complainant 
 shall take his evidence in reply ; and no further evidence shall 
 be taken in the cause, unless by agreement of the parties, or by 
 leave of the court first obtained, on motion, for cause shown." 4 
 " Three months, and no more, shall be allowed for the taking of 
 testimony after the cause is at issue, unless the court, or a judge 
 thereof, shall, upon special cause shown by either party, enlarge 
 the time ; and no testimony taken after such period shall be 
 allowed to be read in evidence upon the hearing." 5 " The tes- 
 timony of any witness may be taken in any civil cause depending 
 in a District or Circuit Court by deposition de bene esse, when 
 the witness lives at a greater distance from the place of trial than 
 one hundred miles, or is bound on a voyage to sea, or is about to 
 go out of the United States, or out of the district in which the 
 case is to be tried, and to a greater distance than one hundred 
 miles from the place of trial, before the time of trial or when he 
 is ancient and infirm. The deposition maj 7 be taken before any 
 judge of any court of the United States, or any commissioner of 
 a Circuit Court, or any clerk of a District or Circuit Court, or 
 any chancellor, justice or judge of a supreme or superior court, 
 mayor or chief magistrate of a City, judge of a county court or 
 court of common pleas of any of the United States, or any notary 
 public, not being of counsel or attorney to either of the parties, 
 nor interested in the event of the cause. Reasonable notice must 
 first be given in writing by the party or his attorney proposing 
 to take such deposition, to the opposite party or his attorney of 
 record, as either may be nearest, which notice shall state the name 
 of the witness and the time and place of the taking of his deposi- 
 tion ; and in all cases in rem, the person having the agency or 
 possession of the property at the time of seizure shall be deemed 
 the adverse party, until a claim shall have been put in ; and 
 whenever, by reason of the absence from the district and want 
 of an attorney of record or other reason, the giving of the notice 
 herein required shall be impracticable, it shall be lawful to take 
 such depositions as there shall be urgent necessity for taking, 
 upon such notice as any judge authorized to hold courts in such 
 
 * Amendment of 1869 to Rule 67. Fed. R. 98 ; Street v. Steman, 38 Fed R. 
 
 6 Rule 69. See Coon v. Abbott, 37 548.
 
 § 285.] TESTIMONY TAKEN BEYOND THE JUKISDICTION. 423 
 
 circuit or district shall think reasonable and direct. Any person 
 may be compelled to appear and depose as provided by this sec- 
 tion, in the same manner as witnesses may be compelled to appear 
 and testify in court." 6 "Every person deposing as provided in 
 the preceding section, shall be cautioned and sworn to tell the 
 whole truth, and carefully examined. His testimony shall be re- 
 duced to writing by the magistrate taking the deposition, or by 
 himself in the magistrate's presence, and by no other person, and 
 shall, after it has been reduced to writing, be subscribed by the 
 deponent." 7 " Every deposition taken under the two preceding 
 sections, shall be retained by the magistrate taking it, until he 
 delivers it with his own hand into the court for which it is taken ; 
 or it shall, together with a certificate of the reasons as aforesaid of 
 taking it and of the notice, if any, given to the adverse party, be 
 by him sealed up and directed to such court, and remain under 
 his seal until opened in court. But unless it appears to the sat- 
 isfaction of the court that the witness is then dead, or gone out 
 of the United States, or to a greater distance than one hundred 
 miles from the place where the court is sitting, or that, by reason 
 of age, sickness, bodily infirmity, or imprisonment, he is unable 
 to travel and appear at court, such deposition shall not be used 
 in the cause." 8 Whether the judge can in his discretion permit 
 oral testimony to be taken before him at the hearing of the cause 
 has not yet been decided by the Supreme Court. 9 If it is desired 
 to review upon appeal a judge's refusal so to do, the testimony 
 thus rejected by him, or at least its substance, must be taken 
 down so that it may appear upon the record. 10 
 
 § 285. Testimony taken after a Cause is at Issue and beyond the 
 Jurisdiction of the Court. — It often happens that a witness, whose 
 testimony is needed by either party to a suit in equity, is beyond 
 the jurisdiction of the court. In such a case, his testimony can be 
 taken in three ways, — by deposition, according to the acts of Con- 
 gress ; 2 by a commission under a dedimus potestatem ; 2 and by letters 
 rogatory. 3 Whether a Circuit Court can appoint a special examiner 
 to take testimony beyond its territorial jurisdiction, is doubtful. 4 
 
 6 U. S. R. S. § 863. s see § 290. 
 
 7 U. S. R. S. § 864. 4 i n North Carolina Railroad Co. v. 
 
 8 U. S. R. S. § 865. Drew, 3 Woods, 601, this was done. In 
 
 9 Blease v. Garlington, 92 U. S. 1, 7. Arnold v. Chesebrough, 35 Fed. R. 16, 
 10 Blease v. Garlington, 92 U. S. 1, 8. and Celluloid Manuf. Co. v. Russell, 35 
 § 285. 1 See §§ 286, 287. Fed. R. 17, such a request was refused. 
 
 2 See §§ 288, 289.
 
 424 EVIDENCE AT LAW AND IN EQUITY. [CHAP. XIX. 
 
 § 286. Depositions de bene esse under the Acts of Congress. — 
 The equity rules say that " testimony may also be taken in the 
 cause, after it is at issue, by deposition, according to the acts of 
 Congress. But in such case, if no notice is given to the adverse 
 party of the time and place of taking the deposition, he shall, 
 upon motion and affidavit of the fact be entitled to a cross- 
 examination of the witness either under a commission or by a 
 new deposition taken under the act of Congress, if a court or 
 a judge thereof shall, under all the circumstances, deem it reason- 
 able." 1 The acts of Congress on the subject are as follows : The 
 magistrate should write down and return to the court any species 
 of evidence offered before him, and cannot exclude evidence on 
 the ground that it is not pertinent. It belongs to the court, on 
 the return of the deposition, to determine whether the evidence 
 is pertinent or not. 2 The relevancy of a question and the right 
 to have the deposition taken will be tested, if the witness refuses 
 to answer, and an application is made to punish him for con- 
 tempt. 3 These statutory provisions, being in derogation of the 
 common law, are strictly construed. 4 Consequently, before depo- 
 sitions thus taken can be read in evidence, the party that offers 
 them must prove that compliance was made with all the require- 
 ments of the statutes, or else that these requirements were waived 
 by the opposite party. 5 There is no presumption that a deposi- 
 tion was properly taken. 6 The certificate of the magistrate is 
 sufficient evidence of such a compliance. 7 He, however, need 
 not state in his certificate that he was not of counsel for either 
 part}' nor interested in the event of the cause ; 8 nor, it has been 
 held, that the witness was " sworn to testify the whole truth," if 
 the certificate states that the witness was sworn ; 9 nor, perhaps, 
 that the witness is not a resident of the district where the case 
 is pending. 10 The fact that a witness is a seaman on a gunboat 
 stationed in a harbor, but liable to be ordered to some other 
 
 § 286. 1 Rule 68. See Stegner v. 7 Harris v. Wall, 7 How. 693 ; Thorpe 
 
 Blake, 36 Fed. R. 183. v. Simmons, 2 Craneh C. C. 195. 
 
 2 Ex parte W T illiam Judson, 3 Blatchf. 8 Miller v. Young, 2 Craneh C. C. 53 ; 
 
 148. Peyton v. Veitch, 2 Craneh C. C. 123. 
 
 s Ex parte Elisha Peck, 3 Blatchf. 113; 9 Bussard v. Catalino, 2 Craneh C. C. 
 
 Ex parte William Judson, 3 Blatchf. 148. 421. But see Rainer v. Haynes, Hempst. 
 
 * Bell v. Morrison, 1 Pet. 351. 689 ; Garrett v. Woodward, 2 Craneh 
 
 6 Bell v. Morrison, 1 Pet. 351 ; Harris C. C. 190. 
 v. Wall, 7 How. 693. 10 Sage v. Tauszky, 6 Cent. L. J. 7. 
 
 6 Bell v. Morrison, 1 Pet. 351 ; Banks 
 v. Miller, 1 Craneh C. C. 543.
 
 § 286.] TESTIMONY TAKEN BEYOND THE JURISDICTION. 425 
 
 place, is, it seems, not sufficient to authorize the taking of his 
 testimony de bene esse in this manner. 11 No order or rule of the 
 court is necessary in order to take depositions in this manner. 12 
 Although one deposition has been already taken, yet a second 
 deposition of the same witness may be taken without an order of 
 the court. 13 It is, however, customary to file the notice or a 
 copy thereof in the clerk's office before the issue of the subpoenas. 
 Any one, even a party to the suit, may serve the notice. 14 If the 
 United States be a party, it seems that service should be made 
 upon the nearest district attorney. 15 The service must be per- 
 sonal, unless otherwise expressly authorized as provided for in 
 the statute. 16 The notice must be served a reasonable time be- 
 fore the taking of the deposition. 17 An hour's notice has, how- 
 ever, been held to be reasonable. 18 It seems, however, that it is 
 not proper to serve a notice for the taking of a deposition during 
 a term at which the cause could be tried ; 19 or so short a time 
 before as not to allow an attorney, if he attend, to reach the 
 court before the commencement of that term. 20 The notice must 
 show on its face that the contingency has happened which con- 
 fers jurisdiction on the magistrate, and gives the party serving it 
 a right to have the deposition taken ; so that the party upon 
 whom it is served may be able to judge whether it is necessary 
 for him to attend. 21 If the witnesses' Christian names are un- 
 known, the inclusion of their surnames in the notice will be 
 sufficient. 22 If the notice state that the taking of depositions 
 will be adjourned from day to day, it seems that depositions 
 taken upon an adjourned day will be received. 23 It seems that 
 if the witness is properly sworn, it is not necessary that he be 
 
 11 The Samuel, 1 Wheat. 9. 29 ; Bowie v. Talbot, 1 Cranch C. C. 247 ; 
 
 12 Pettibone v. Derringer, 4 Wash. 215 ; Atkinson v. Glenn, 4 Cranch C. C. 134. 
 Buckingham v. Burgess, 3 McLean, 368. ^ Allen v. Blunt, 2 W. & M. 121 ; Bell 
 But see Walker v. Parker, 5 Cranch C. C. v. Nimmon, 4 McLean, 539. 
 
 639. 20 Bell v. Nimmon, 4 McLean, 539. 
 
 13 Cornett v. Williams, 20 Wall. 220. 2 » Harris v. Wall, 7 How. 693. Contra, 
 
 14 Young v. Davidson, 5 Cranch C. C. Debutts v. McCulIoch, 1 Cranch C. C. 286 ; 
 515. Sage v. Tauszky, 6 Cent. L. J. 7. 
 
 i 6 The Argo, 2 Gall. 314. 22 Claxton v. Adams, 1 Mac Arthur 
 
 16 Carrington v. Stimson, 1 Curtis, 437. (D. C), 496. See Carrington v. Stimson, 
 
 17 Jamieson v. Willis, 1 Cranch C. C. 1 Curt. 437. 
 
 566 ; Renner v. Howland, 2 Cranch C. C. 23 Knode v. Williamson, 17 Wall. 586 ; 
 
 441 ; Barrell v. Simonton, 3 Cranch Sage t'. Tauszky, 6 Cent. L. J. 7. But 
 
 C. C. 681. see Kirkpatrick v. Baltimore & Ohio R. R. 
 
 18 
 
 Leiper v. Bickley, 1 Cranch C. C. Co., 24 Pittsb. L. J 61.
 
 426 
 
 EVIDENCE AT LAW AND IN EQUITY. [CHAP. XIX. 
 
 also cautioned to testify the whole truth; 24 and that the oath 
 may be administered after the deposition has been reduced to 
 writing, as well as before. 25 If the witness has conscientious 
 scruples about taking an oath, he may affirm. 26 The certificate of 
 the magistrate that the witness has such conscientious scruples 
 is sufficient evidence thereof. 27 
 
 § 287. Form of Deposition under Acts of Congress. — The depo- 
 sition should state either in its body or in its caption the name 
 of the court where the cause is pending, 1 the title of the cause, 2 
 and the place where the deposition is taken. 3 If the depo- 
 sition is sent by mail, the magistrate should certify that it was 
 retained by him until sealed up and directed to the court. 4 If 
 he have an official seal under which he usually certifies his acts, 
 it seems that this certificate should be under that seal. 5 It seems 
 that it will be presumed that he occupies the official position 
 which he assumes in his certificate ; 6 certainly so, if he be a no- 
 tary public and certifies under his notarial seal ; 7 and this may 
 always be proved by oral testimony like any other material fact. 8 
 The deposition may be directed to either the judge or the clerk 
 of the court. 9 It cannot be read in evidence if opened anywhere 
 but in court, except by consent, 10 which it will be well to have 
 appear by writing duly signed and filed with or indorsed on the 
 deposition. 11 It may be read, however, though it has been taken 
 from the files with the court's leave and the magistrate has 
 amended his certificate. 12 If an attorney appear and cross- 
 
 24 Doe d. Moore v. Nelson, 3 McLean, 
 383; Brown v. Piatt, 2 Cranch C. C. 253. 
 Contra, Luther v. The Merritt Hunt, 
 Newb. 4. 
 
 25 Tooker v. Thompson, 3 McLean, 92. 
 
 26 U. S. R. S. § 1. 
 
 27 Elliot v. Hayman, 2 Cranch C. C.678. 
 § 287. l Van Ness v. Heineke, 2 Cranch 
 
 C. C. 259. 
 
 2 Peyton v. Veitch, 2 Cranch C. C. 123 
 Smith v. Coleman, 2 Cranch C. C. 237 
 Centre v. Keene, 2 Cranch C. C. 198 
 Waskern v. Diamond, Hempst. 701 ; Al- 
 len v. Blunt, 2 W. & M. 121. But see 
 Voce v. Lawrence, 4 McLean, 203 ; Buck- 
 ingham v. Burgess, 3 McLean, 368 ; Pan- 
 nill v. Eliason, 3 Cranch C. C. 358. 
 
 3 Pentleton v. Forbes, 1 Cranch C. C. 
 507; Tooker v. Thompson, 3 McLean, 
 92. 
 
 4 Shankwiker v. Reading, 4 McLean, 
 240 ; Jones v. Neale, 1 Hughes, 268. 
 
 5 Paul v. Lowry, 2 Crancli C. C. 628. 
 But see Price v. Morris, 5 McLean, 4. 
 
 6 Ruggles v. Bucknor, 1 Paine, 358 ; 
 Price v. Morris, 5 McLean, 4 ; Vasse v. 
 Smith, 2 Cranch C. C. 31 ; Whitney v. 
 Huntt, 5 Cranch C. C. 120. But see 
 Tooker v. Thompson, 3 McLean, 92. 
 
 7 Dinsmore v. Maroney, 4 Blatchf . 416. 
 
 8 Paul v. Lowry, 2 Cranch C. C. 628; 
 Dunlop t'.Munroe, 1 Cranch C. C. 536. 
 
 » Thorp v. Orr, 2 Cranch C. C. 335 ; 
 Whitney v. Pluntt, 5 Cranch C. C. 120. 
 
 10 Beale v. Thompson, 8 Cranch, 70; 
 The Roscius, 1 Brown Adm. 442. 
 
 11 The Roscius, 1 Brown Adm. 442. 
 
 12 Leatherberry v. Radcliffe, 6 Cranch 
 C. C. 650.
 
 § 288.] COMMISSIONS ISSUED UNDER A DEDIMUS POTESTATEM. 427 
 
 examine a witness without objection, he thereby waives any 
 irregularity in the notice, 13 or in the form or manner of the pro- 
 ceedings, 14 or, it seems, an incompetency in the witness then 
 known to him, 15 or any other formal defect. His presence, how- 
 ever, if he declines to take any part in the proceedings, does 
 not. 16 In general, all defects in form can only be raised by a 
 motion to suppress the deposition ; 17 and the court will usually 
 allow an adjournment of the hearing in order that the testimony 
 may again be taken. 18 
 
 § 288. Commissions issued under a Dedimus Potestatem. — The 
 Revised Statutes provide that in any case where it is necessary, 
 in order to prevent a failure or delay of justice, any of the courts 
 of the United States may grant a dedimus potestatem to take 
 depositions according to common usage. And the provisions of 
 sections eight hundred and sixty-three, eight hundred and sixty- 
 four, and eight hundred and sixty-five do not apply to any depo- 
 sition to be taken under the authority of this section. 1 The 
 words " common usage " when applied to a suit in equity, signify 
 the ordinary practice of courts of equity.' 2 Depositions may be 
 taken under this section of the Revised Statutes, even though 
 the witness live within one hundred miles of the court where the 
 cause is pending ; 3 or in a country with which the United States 
 are at war. 4 Such a commission is not granted as of course, but 
 only upon good cause shown. 5 The application must be made in 
 open court, and not to a judge at chambers ; 6 and must be ac- 
 companied by an affidavit showing that the testimony which the 
 party desires to take is material. 7 It seems that the commission 
 need not specify the exact place where the depositions are to be 
 taken ; but if it do, the commissioners should conform to it in 
 
 13 Dinsmore v. Maroney, 4 Blatchf. § 288. i U. S. R. S. § 866 ; Jones v. 
 
 416. Oregon Central R. R. Co., 3 Sawyer, 623. 
 
 " Shutte v. Thompson, 15 Wall. 151 ; 2 United States v. Parrott, 1 McAll. 
 
 In re Thomas, 35 Fed. R. 822. 447. 
 
 15 United States v. One Case, 1 Paine, 8 Wellford v. Miller, 1 Cranch C. C. 
 400. 485 ; Russell v. M'Lellan, 3 W. & M. 157. 
 
 16 Harris v. Wall, 7 How. 693. 4 Peters v. Prevost, 1 Paine, 64. 
 
 17 Claxton v. Adams, 1 MacArthnr 5 United States v. Parrott, 1 McAll. 
 (D. C), 496 ; Bank of Danville v. Trav- 447. 
 
 ers, 4 Biss. 607 ; Brooks v. Jenkins, 3 6 Peters v. Prevost, 1 Paine, 64. 
 
 McLean, 432. 7 Sutton v. Mandeville, 1 Cranch C. C. 
 
 18 Luther v. The Merritt Hunt, Newb. 115; United States v. Parrott, 1 McAll. 
 4 ; Doe d. Moore v. Nelson, 3 McLean, 447. 
 
 383.
 
 428 EVIDENCE AT LAW AND IN EQUITY. [CHAP. XIX. 
 
 that respect. 8 Whether a party will or will not be required before 
 the commission is issued to name the witnesses to be examined 
 under it, depends upon the discretion of the court, to be exercised 
 under the circumstances of each case. 9 Before the issue of the 
 commission, the proposed interrogatories should be filed 10 and 
 served upon the opposite party or his attorney ; u and the latter 
 given a reasonable time, usually fixed by the court, within which 
 to object to them and to file cross-interrogatories. 12 If he omit 
 to do so, the commission may be issued without further notice. 13 
 The interrogatories are drawn up substantially as those for the 
 examination of witnesses within the jurisdiction of the court. 14 
 Objections to interrogatories or cross-interrogatories should be in 
 the form of exceptions to them, and must be filed before the com- 
 mission issues ; or otherwise will be held waived. 15 If the parties 
 cannot agree as to their form or substance, a reference may be 
 ordered to a master, whose report will be reviewed by the court. 16 
 If there be any doubt as to the relevancy or propriety of an in- 
 terrogatory, the ultimate decision thereon will be reserved until 
 the hearing, and it will be allowed to stand and be answered ; 
 if there be no doubt as to its irrelevancy or impropriety, it will 
 be stricken out before the commission issues. 17 A commission 
 must always name or designate the commissioner or commission- 
 ers. 18 A woman may be a commissioner, even though she be the 
 wife of the witness to be examined. 19 The court may grant an 
 order that exhibits annexed to a deposition already taken may be 
 removed from the file and attached to a commission, provided 
 that copies of them are left in their place.' 20 
 
 § 289. Proceedings under a Dedimus Potestatem. — If the ap- 
 plication does not state when and where the commission is to be 
 executed, the party at whose instance, or the commissioner to 
 whom it is issued, should notify the adverse party or his solicitor 
 
 8 Rhoades v. Selin, 4 Wash. 715. 16 Cocker v. Franklin H. & B. Co., 1 
 
 9 Parker v. Nixon, Baldw. 291. Story, 169. 
 
 io Cunningham v. Otis, 1 Gall. 166. J6 Cocker v. F. H. & B. Co., 1 Story, 
 
 u Rhoades v. Selin, 4 Wash. 715 ; Mer- 169 ; Boudereau v. Montgomery, 4 Wash, 
 
 rill v. Dawson, Hempst. 563 ; s. c. sub 186. 
 
 nom. Fowler v. Merrill, 11 How. 375. " Cocker v. F. H. & B. Co., 1 Story, 
 
 i 2 Frevall v. Bache, 5 Cranch C. C. 169. 
 
 463 ; The Norway, 1 Ben. 493. 18 Vanstophorst v. Maryland, 2 Dal! 
 
 is' Cocker v. F. H. & B. Co., 1 Story, 401. 
 
 169 1 9 The Norway, 2 Benedict, 121. 
 
 " Rhoades v. Selin, 4 Wash. 715. 20 Daly v. Maguire, 6 Blatchf. 137.
 
 § 289.] PEOCEEDINGS UNDER A DEDIMUS POTESTATEM. 429 
 
 before the depositions are taken. 1 When, however, a party, after 
 notice of an opportunity to do so, has neglected to file cross-in- 
 terrogatories, no further notice to him is necessary. 2 The notice 
 should be served personally, or else left at the house of the person 
 upon whom it is made with a member of his family of sufficient 
 intelligence. 3 The person upon whom it is left, however, need 
 not be informed of its purport. 4 Service by mail, unless actually 
 received in time, is insufficient. 5 An hour's notice of the time of 
 taking a deposition in the place where the attorney to whom it is 
 given dwells, has been held sufficient. 6 The regulation of the 
 proceedings under a commission is a matter in the discretion of 
 the court issuing it. 7 A commissioner is appointed by and repre- 
 sents the court ; and is no more than is an arbitrator the repre- 
 sentative of the party nominating him. 8 The authority given to 
 a commissioner is special, and must be strictly construed. 3 A 
 commission issued to more than one commissioner must be exe- 
 cuted and returned by all of them, 10 unless it is otherwise so pro- 
 vided in it; 11 and if any one else, except a judge in a foreign 
 country whose laws do not permit a private individual to take 
 testimony alone, 12 join in its execution on return, the testimony 
 taken under it will also be suppressed. 13 A commission must be 
 executed at the time and place named in it, or in the notice. 14 
 It has been held that the witnesses under such a commission 
 should be examined alone ; and the parties are not allowed to be 
 present either in person or by attorney, unless the court other- 
 wise directs. 15 The interrogatories may be shown the witness 
 
 §289. > Rhoadesi*. Selin, 4 Wash.715 ; 9 Gupp v. Brown, 4 Dall. 410 ; Arm- 
 
 Knode v. Williamson, 17 Wall. 586 ; Mer- strong v. Brown, 1 Wash. 43 ; Boudereau 
 
 rill v. Dawson, Hempst. 563 ; s. c. sub v. Montgomery, 4 Wash. 186. 
 
 nom. Fowler v. Merrill, 11 How. 375; lJ Gupp v. Brown, 4 Dall. 410; Arm- 
 
 Dunlop v. Munroe, 1 Cranch C. C. 536. strong v. Brown, 1 Wash. 43; Munns v. 
 
 2 Merrill v. Dawson, Hempst. 563 ; Dupont, 3 Wash. C. C. 31. 
 
 8. c. sub nom. Fowler v. Merrill, 11 How. " The Griffin, 4 Blatchf. 203 ; Lons- 
 
 375. dale v. Brown, 3 Wash. 404. 
 
 3 Merrill v. Dawson, Hempst. 563 ; ! - Winthrop v. Union Ins. Co., 2 
 s. c. sub nom. Fowler v. Merrill, 11 How. Wash. 7. 
 
 375, « Willings v. Consequa, ret. C. C. 301. 
 
 * M'Call v. Towers, 1 Cranch C. C. 41. Barnet v. Day, 3 Wash. 243. 
 
 5 Walker v. Parker, 5 Cranch C. C M Rhoades v. Selin, 4 Wash. 715 ; Bou- 
 639. dereau v. Montgomery, 4 Wash. 186; 
 
 6 Nicholla v. White, 1 Cranch C. C. 58. Knode v. Williamson, 17 Wall. 586 ; Bud- 
 
 7 Cunningham v. Otis, 1 Gall. 166. dicum i\ Kirk, 3 Cranch. 293. 
 
 8 Jones v. Oregon Central R R. Co., 15 Cunningham v. Otis, 1 Gall. 166. 
 3 Sawyer, 523; Gilpins v. Consequa, Pet. But see Knode v. Williamson, 17 Wall. 
 C. C. 85; Gupp v. Brown, 4 Dall. 410. 865; Merrill v. Dawson, Hempst. 563;
 
 430 EVIDENCE AT LAW AND IN EQUITY. [CHAP. XIX. 
 
 before he is called upon to give his testimony. 16 He must be 
 examined as to each interrogatory and cross-interrogatory ; and 
 if he improperly omits to answer any one of them, or if any one 
 of them, an answer to which would be legal evidence, is not put 
 to him, his whole deposition may be suppressed at the instance 
 of the party who might be thereby injured. 17 If, however, the 
 deposition have been issued ex parte, the adverse party having 
 omitted to file cross-interrogatories after an opportunity to do 
 so has been given him, it has been said that as many, or as 
 few, of these interrogatories as the party who filed them thinks 
 proper may be put, provided that the general interrogatory is not 
 omitted. 18 If the cross-interrogatories are put, it makes no dif- 
 ference how soon after the direct interrogatories have been an- 
 swered the witness is called upon to answer them. 19 No additional 
 interrogatories, however, can be filed with or put by or before 
 the commissioner. 20 Under extraordinary circumstances the ex- 
 amination of a witness not named in the commission might be 
 permitted. 21 The deposition may be taken down in writing 
 either by the magistrate or by the deponent in the presence of 
 the magistrate; 22 but not by the counsel for either of the 
 parties. 23 If exhibits are referred to by the witness, they should 
 be annexed to the deposition or identified by marks or refer- 
 ence. 24 A paper referred to by a witness, but which is neither 
 in his own power nor in that of the part}' making the objection, 
 need not, however, be included in the deposition or thus identi- 
 fied. 25 It has been held that the deposition need not be signed 
 by the witness. 26 A deposition prepared and signed some time 
 before the oath is administered is improper and will be sup- 
 
 s. c. sub nom. Fowler v. Merrill, 11 How. 2e Cunningham v. Otis, 1 Gall. 166; 
 
 375. Merrill v. Dawson, Hempst. 563 ; s. c. 
 
 16 North Carolina R. R. v. Drew, 3 sub nom. Fowler v. Merrill, 11 How. 375. 
 
 Woods, 691. » The Infanta, Abbott's Ad. 263. 
 
 " Ketland v. Bissett, 1 Wash. 144 ; 22 Stockwell v. United States, 3 Cliff. 
 
 Nelson v. United States, Pet. C. C. 235 ; 284 ; Keene v. Meade, 3 Pet. 1 ; s. c. sub 
 
 Winthrop v. Union Ins. Co., 2 Wash. 7 ; nom. Meade v. Keane, 3 Cranch C. C. 51. 
 
 Bellt;. Davidson, 3 Wash. C.C. 328; Rich- 23 United States v. Pings, 4 Fed. R.714. 
 
 ardson v. Golden, 3 Wash. C. C. 109; But see Nicholls v. White, 1 Cranch C. C. 
 
 Dodge v. Israel, 4 Wash. 323 ; Gilpins v. 58 ; Atkinson v. Glenn, 4 Cranch C. C. 
 
 Consequa, Pet. C. C. 85 ; s. c. 3 Wash. 184. 134. 
 
 But see Gass ;>. Stinson, 3 Sumner, 98. 24 Dodge v. Israel, 4 Wash. 323. 
 
 13 Merrill?-. Dawson, Hempst. 563; s. c. 25 Winans v. New York & Erie R. R. 
 
 sub nom. Fowler v. Merrill, 11 How. 375. Co., 21 How. 88. 
 
 » Gilpins v. Consequa, Pet. C. C. 85 ; 25 Ketland v. Bissett, 1 Wash. 144. 
 s. c. 3 Wash. 184.
 
 § 2S9.] PROCEEDINGS UNDER A DED1MUS POTESTATEM. 431 
 
 pressed. 27 The depositions should be attached to the commission 
 and, with them, a certificate by all the commissioners that they 
 have complied with the requirements above described. The 
 commission should then be sent or delivered to the clerk's office 
 of the court unopened, and must there remain so till publication 
 is allowed by order or consent. 28 The return, or certificate, of 
 the commissioners should state that they were sworn, unless that 
 ceremony has been waived, or they are officers qualified to ad- 
 minister an oath. 29 The return should also state the time and 
 place of taking the depositions ; 30 that each witness was sworn 
 or affirmed, but not that he was cautioned ; nor need it state the 
 form of the oath. 31 The return need not state in whose hand- 
 writing the depositions were taken down ; 32 nor, if the witness 
 was an alien, whether or not he was examined by means of an 
 interpreter. 33 This certificate will be presumptive evidence of 
 the facts therein stated in relation to the execution of the com- 
 mission. 34 Otherwise, proceedings under these commissions 
 should conform substantially to those under commissions to ex- 
 amine witnesses within the jurisdiction of the court. 35 Any ob- 
 jection to the form or manner of the proceedings can only be 
 raised by a motion to suppress the deposition, 36 provided that suf- 
 ficient time within which to make such a motion remains between 
 the return of the commission and the hearing. 37 Should a foreign 
 plaintiff refuse to testify before a commission when required so 
 to do, the court may deny him relief in the suit. 38 
 
 27 Dodge v. Israel, 4 Wash. 323; North 83 Gilpins v. Consequa, Pet. C. C. 85; 
 Carolina R. R. Co. v. Drew, 3 Woods, 691. s. c. 3 Wash. 184. 
 
 28 Boudereau v. Montgomery, 4 Wash. 31 Merrill v. Dawson, Hempst. 563 ; s. c. 
 186; Frevall v. Bache, 5 Cranch. C. C. sub nom. Fowler v. Merrill, 11 How. 375; 
 463 ; United States v. Price, 2 Wash. Boudereau v. Montgomery, 4 Wash. 186 ; 
 356. Winter v. Simonton, 3 Cranch C. C. 104. 
 
 29 Frevall v. Bache, 6 Cranch C. C. ^ Jones v. Oregon Central R. R. Co., 
 463; Hoyt v. Hammekin, 14 How. 346. 3 Sawyer, 523; United States v. Parrott, 
 But see Gilpins v. Consequa, Pet. C. C. 85 ; 1 McAll. 447. See § 284. 
 
 8. c. 3 Wash. 184. 86 Blackburn v. Crawfords, 3 Wall. 175 ; 
 
 80 Rhoades v. Selin, 4 Wash. 715 ; Winans v. New York & Erie R. B. Co., 21 
 Boudereau v. Montgomery, 4 Wash. 186. How. 88 ; Doane v. Glenn, 21 Wall. 33 ; 
 
 81 Jones v. Oregon Central R. R. Co., York Co. v. Central R. R., 3 Wall. 107; 
 3 Sawyer, 523 ; Keene v. Meade, 3 Pet. 1 ; Walker v. Parker, 5 Cranch C. C. 639. 
 
 s. c. sub nom. Meade v. Keane, 3 Cranch 37 Sergeant v. Biddle, 4 Wheat. 508 ; 
 
 C. C. 51. Mechanics' Bank v. Seton, 1 Pet. 299; 
 
 82 Keene v. Meade, 3 Pet. 1 ; s. c. sub Buddicum v. Kirk, 3 Cranch, 293 ; Alsop 
 nom. Meade v. Keane, 3 Cranch C. C. 51 ; v. Commercial Ins. Co., 1 Sumner, 451. 
 Jones v. Oregon Central R. R. Co., 3 Saw- 3S Heath v. Erie Railway Co., 9 Blatchf. 
 yer, 623. 316.
 
 432 EVIDENCE AT LAW AND IN EQUITY. [CHAP. XIX. 
 
 § 290. Letters Rogatory. — When the witnesses whose testi- 
 mony is desired are in a country whose laws do not permit 
 of the execution of a commission issued from a foreign court, 
 their testimony can only be taken by means of letters roga- 
 tory. " This method of obtaining testimony from witnesses in 
 a foreign country, has always been familiar in the Courts of Ad- 
 miralty; but it is also deemed to be within the inherent powers 
 of all Courts of Justice. For, by the law of Nations, Courts of 
 Justice, of different countries, are bound mutually to aid and 
 assist each other, for the furtherance of justice ; and hence, when 
 the testimony of a foreign witness is necessaiy, the Court, before 
 which the action is pending, may send to the Court, within whose 
 jurisdiction the witness resides, a writ, either patent or close, 
 usually called a letter rogatory, or a commission sub mutuae vicis- 
 situdlnis obtentu, ac in juris subsidium, from those words contained 
 in it. By this instrument, the Court abroad is informed of the 
 pendency of the cause, and the names of the foreign witnesses, 
 and is requested to cause the depositions to be taken, in due 
 course of law, for the furtherance of justice ; with an offer, on 
 the part of the tribunal making the request, to do the like for 
 the other in a similar case. The writ or commission is usually 
 accompanied by interrogatories, filed by the parties, on each side, 
 to which the answers of the witnesses are desired. The commis- 
 sion is executed by the Judge who receives it, either by calling 
 the witness before himself, or by the intervention of a commis- 
 sioner for that purpose ; and the original answers, duly signed 
 and sworn to by the deponent, and properly authenticated," or 
 duly authenticated copies of the same " are returned with the com- 
 mission to the Court from which it issued. The Court of Chan- 
 cery has always freely exercised this power, by a commission, 
 either directed to foreign magistrates, by their official designa- 
 tion, or more usually, to individuals by name ; which latter 
 course, the peculiar nature of its jurisdiction and proceedings 
 enables it to induce the parties to adopt by consent, where any 
 doubt exists as to its inherent authority." 2 A special application 
 for an order for letters rogatory may be made to the court, and 
 
 § 200. 1 Greenleaf s Evidence, § 320. and tit. 27, rum add., pp. 37, 38, 55-60; 
 
 See for a good form, Nelson v. United Clerke's Praxis, tit. 27 ; 1 Roll. Abr. 530, 
 
 States, 1 Pet. C. C. 236, note a. See also pi. 15 ; Oughton's Ordo Judiciorum.Vol. I. 
 
 Cunningham v. Otis, 1 Gall. 166; Hall's pp. 150-152, tit. 05, 96; Wharton's Inter- 
 
 Adin. Pr. Part 2, tit. 19, Vol. I. cum add., national Law Digest, Vol. III. § 413.
 
 § 290.] LETTERS ROGATORY. 433 
 
 will be granted in the first instance without issuing a commission, 
 upon satisfactory proof that the authorities abroad will not allow 
 the testimony to be taken in any other manner. 2 " When any 
 commission or letter rogatory, issued to take the testimony of any 
 witness in a foreign country, in any suit in which the United 
 States are parties or have any interest, is executed by the court 
 or the commissioner to whom it is directed, it shall be returned 
 by such court or commissioner to the minister or consul of the 
 United States nearest the place where it is executed. On re- 
 ceiving the same, the said minister or consul shall indorse there- 
 on a certificate, stating when and where the same was received, 
 and that the said deposition is in the same condition as when he 
 received it ; and he shall thereupon transmit the said letter or 
 commission so executed and certified by mail, to the clerk of the 
 court from which the same issued, in the manner in which his 
 official despatches are transmitted to the Government. And the 
 testimony of witnesses so taken and returned shall be read as 
 evidence on the trial of the suit in which it was taken, without 
 objection as to the method of returning the same." 3 The stat- 
 utes further provide for the taking of testimony under a com- 
 mission in pursuance of letters rogatory issued from a court in 
 a foreign country, with which the United States are at peace, to 
 take the testimony of a witness residing within the United States, 
 in any suit for the recovery of money or property depending in 
 such foreign court in which the government of such foreign coun- 
 try is a party or has an interest. 4 
 
 2 1 Hoffman's Ch. Pr. 482 ; Daniell's » U. S. R. S. § 875. 
 Ch. Pr. (3d Am. ed. by Judge Perkins), 4 U. S. R. S. §§ 4071-4074; Re Letters 
 
 Vol. II. p. 953 ; Gason v. Wordsworth, 2 Rogatory, 46 Fed. R. 30G ; Wharton's In- 
 
 Ves. Sen. 336; Lincoln v. Battelle, 6 ternational Law Digest, Vol. III. § 413. 
 Wend. (N. Y.) 475. 
 
 28
 
 434 DISMISSING BILLS OTHERWISE THAN AT A HEARING. [CHAP. XX. 
 
 CHAPTER XX. 
 
 DISMISSING BILLS OTHERWISE THAN AT A HEARING. 
 
 § 291. Dismissal of Bills by the Plaintiff. — The plaintiff may 
 dismiss his bill without costs at any time before the defendant's 
 appearance. 1 He may obtain the order for the dismissal as of 
 course upon motion or petition, usually by the latter; 2 but if the 
 dismissal is a violation of an agreement between him and the 
 defendant, the order granting it may be subsequently vacated. 3 
 After appearance and before a decree or decretal order, a plaintiff 
 can usually obtain a dismissal upon payment of the costs of such 
 of the defendants as have appeared ; 4 but not, if they or any of 
 them would be injured thereby. 5 Leave may be granted upon 
 terms, as, for example, that the complainant stipulate to allow 
 defendant's evidence to be used in any subsequent suit. 6 An 
 executor or other person, who has filed a bill in a representative 
 capacity in good faith with reasonable grounds for so doing, 
 may be excused payment of costs. 7 The motion for such an order 
 should be upon notice. 8 These rules apply when a plaintiff sues 
 in behalf of himself and others, provided that no one has pre- 
 viously joined with him as co-plaintiff, 9 unless, perhaps, others 
 have contributed to the expenses of the suit and wish it con- 
 tinued. 10 The majority of the stockholders in a corporation 
 cannot always have a suit discontinued against the wishes of its 
 directors. 11 After a decree or decretal order, however, the 
 plaintiff may not discontinue without the consent of all parties 
 
 § 291. x Thompson v. Thompson, 7 6 American Zylonite Co. v. Celluloid 
 
 Beav. 350. Manuf . Co., 32 Fed. R. 809. 
 
 2 Daniell's Ch. Pr. (5th Am. ed.) 790, 7 Arnoux v. Steinbrenner, 1 Paige 
 
 791. (N.Y.),82. 
 
 8 Betts v. Barton, 3 Jur. (n. s.) 154. 8 American Zylonite Co. v. Celluloid 
 
 * C. & A. R. R. Co. v. Union Rolling Manuf. Co., 32 Fed. R. 809. 
 
 Mill Co., 109 U. S. 702 ; Conn. & P. R. R. 9 Handford v. Storie, 2 Sim. & S. 196 ; 
 
 Co. v. Hendee, 27 Fed. R. 678. Armstrong v. Storer, 9 Beav. 277. 
 
 6 Cooper v. Lewis, 2 Phil. 178 ; Ainslie 10 Ex parte Railroad Co., 95 U. S. 221 ; 
 
 v. Sims, 17 Beav. 174 ; Booth v. Leyces- Miller v. Liggett & M. Tobacco Co., 7 
 
 ter, 1 Keen, 247 ; Bank of South Carolina Fed. R. 91. 
 
 v. Rose, 1 Rich. Eq. (S. C.) 292 ; Stevens u Railway Co. v. Ailing, 99 U. S. 463. 
 v. The Railroads. 4 Fed. R. 97-
 
 § 292.] DISMISSAL OF BILLS FOR WANT OF PROSECUTION. 435 
 
 who have acquired rights by the decree. 12 The usual course 
 pursued by one, in whose name without his consent a bill has 
 been filed, is to move to have it taken off the file. 13 Upon this 
 being done, he may obtain his costs, as well as any costs he may 
 have been compelled to pay a defendant, from the solicitor who 
 filed the bill. 14 A plaintiff cannot, it seems, dismiss a part only 
 of his bill. The proper course is for him to amend by omitting 
 it. 15 When there is more than one plaintiff, one of them may by 
 special leave of the court have the bill dismissed with costs so far 
 as concerns himself, provided that no injury will thereby result to 
 any other party. 16 If there are several defendants, a plaintiff may 
 obtain an order dismissing his bill as to some of them, provided 
 that no injury will be thereby done the rest. 17 A dismissal at 
 the plaintiff's request before a hearing is usually without pre- 
 judice, 18 unless evidence has been taken and the cause set down 
 for a hearing, when it may be only granted by a decree dismissing 
 the bill upon the merits. 19 The entry of an order of discontin- 
 uance upon consent of both parties amounts in effect to a dis- 
 missal of the bill. 20 The dismissal of a bill or of part of a bill does 
 not authorize the removal of the paper from the clerk's office 
 unless the order so directs ; and such a direction will rarely be 
 given. 21 Otherwise, the paper remains a part of the record, and 
 may be used as evidence of any admission therein contained. 22 
 
 § 292. Dismissal of Bills for want of Prosecution. — A defendant 
 is entitled to an order dismissing the plaintiff's bill: if the plain- 
 tiff does not reply to any plea, or set down any plea or demurrer 
 for argument on the rule-day when the same is filed, or on the 
 next succeeding rule-day, unless the time within which to do 
 either of those things has been enlarged by a judge of the court j 1 
 if the plaintiff does not reply to that defendant's answer on or 
 before the next succeeding rule-day after its filing, provided that 
 
 " Guilbert v. Hawles, 1 Ch. Cas. 40 ; But see Stevens v. The Railroads, 4 Fed. 
 
 Carrington v. Holly, 1 Dickens, 280. It. 07 ; and § 300. 
 
 w Palmer v. Walesby, L. Ii. 3 Ch. App. 19 Rumbly v. Stainton, 24 Ala. 712; 
 
 732. Rochester v. Lee, 1 Macn. & G. 467. See 
 
 " Palmer v. Walesby, L R. 3 Ch. App. Stevens v. The Railroads, 4 Fed. R. 07. 
 732 ; Wright v. Castle, 3 Meriv. 12. 2J Pictet Artificial Ice Co. v. N. Y. Ice 
 
 16 Camden & Amboy R. R. Co. v. Machine Co., 12 Fed. R. 816. 
 Stewart, 4 C. E. Green (N. J.), 69. 21 Lyster v. Stickney, 12 Fed. R. 609, 
 
 «« Ilolkirk o. Holkirk, 4 Madd. 50; 610. 
 Wintlirop v. Murray, 7 Hare, 150. 2 - Lyster v. Stickney, 12 Fed. R. GOO, 
 
 " Baily v. Lambert, 5 Hare, 178. • 610. 
 
 is Danicll's Ch. Pr. (5th Am. ed.) 793. § 292. > Rule 38.
 
 436 DISMISSING BILLS OTHERWISE THAN AT A HEARING. [CHAP. XX. 
 
 no exceptions have been taken to the answer, or that any ex- 
 ceptions filed are still undecided; 2 and possibly if no testimony 
 is taken by the plaintiff within three months after the cause 
 is at issue, 3 or within any shorter time that may be assigned by 
 the court ; 4 although it might be held that in such a case the 
 defendant must first set the cause down for a hearing. The 
 plaintiff's time for doing any of these things may, however, 
 be enlarged, either before or after it has expired, b\- the court 
 or by consent at any time ; 5 and the taking of any subsequent 
 step by the defendant in the cause, before attempting to take 
 advantage of the default, will usually be deemed a waiver of it. 6 
 
 § 293. Dismissal for want of Jurisdiction. — The Judiciary Act 
 of 1875 provides that "if, in any suit commenced in a circuit court 
 or removed from a State court to a circuit court of the United 
 States, it shall appear to the satisfaction of said circuit court, at 
 any time after such suit has been brought or removed thereto, 
 that such suit does not really and substantially involve a dispute 
 or controversy properly within the jurisdiction of said circuit 
 court, or that the parties to said suit have been improperly or 
 collusively made or joined, either as plaintiffs or defendants, for 
 the purpose of creating a case cognizable or removable under 
 this Act, the said circuit court shall proceed no further therein, 
 but shall dismiss the suit or remand it to the court from which 
 it was removed, as justice may require, and shall make such order 
 as to costs as shall be just." * The court should do this of its own 
 motion, as soon as it discovers its want of jurisdiction or the im- 
 proper or collusive joinder. 2 The Supreme Court has said that this 
 provision of the Act of 1875 is salutary, and that it is the duty 
 of the Circuit Courts to exercise their power under it in all proper 
 cases. 3 Neither party has the right, however, without pleading 
 it within the time allowed for that purpose, to introduce evidence 
 to contradict averments of the jurisdictional facts. 4 If, however, 
 from any source the court is led to suspect that its jurisdiction 
 has been imposed upon by the collusion of the parties or in any 
 
 2 Rule 66. § 293. x Act of March 3, 1875, ch. 137, 
 
 3 Rule 69; Adams v. Howard, 21 Off. § 5 (18 St. at L. 472). 
 
 G az _ 2G4. 2 Williams v. Nottawa, 104 TJ. S. 209. 
 
 4 Amendment of 1869 to Rule 67. s Williams v. Nottawa, 104 U. S. 209, 
 
 5 Rules 38, 66,69; Ex parte Poultney 212. 
 
 v. City of Lafayette, 12 Pet. 472. 4 Hartog v. Memory, 116 U. S. 588, 
 
 6 Allen v. Mayor, 7 Fed. R 483 ; Jack- 590-592. 
 eon v. Ivimey, L. R. 1 Eq. 693.
 
 § 293.] DISMISSAL FOR WANT OF JURISDICTION. 437 
 
 other way, it may of its own motion cause the necessary inquiry 
 to be made, either by having the proper issue joined and tried, 
 or by some other appropriate form of proceeding, and act as 
 justice may require for its own protection against fraud or 
 imposition. 5 In such a case the party that sought the jurisdic- 
 tion of the Federal court should have an opportunity to be 
 heard on the motion, and to meet it by appropriate evidence. 6 
 A judge cannot thus dismiss or remand a case upon his personal 
 conviction, although it amounts to a moral certainty ; the collu- 
 sion or lack of jurisdiction must be legally proved. 7 If there 
 is no collusion and an original defect in the jurisdiction has been 
 cured before the objection is raised, it seems that the suit will 
 be retained. 8 Before the Act of 1875, it was held that a defend- 
 ant, between whom and the complainant the requisite difference 
 of citizenship existed, could not raise an objection on account of 
 the citizenship of another defendant. 9 It has been said, that a 
 defect in the jurisdiction of the Circuit Court for the Southern 
 District of New York, because the cause of action arose in the 
 Northern District of that State, may be taken by answer as well 
 as by plea, but unless raised somewhere in the pleadings 
 will be waived. 10 If the record does not show affirmatively 
 that the court has jurisdiction, the case may be dismissed at any 
 time after as well as before judgment ; and the objection may be 
 taken for the first time in the appellate court. 11 No party can 
 offer evidence to controvert an allegation of a jurisdictional fact 
 in a pleading or petition for removal, unless he has, by plea or 
 answer, preferably by plea, denied such allegation. 12 Consent 
 cannot confer jurisdiction ; 13 but it has been held that consent may 
 bind the parties and waive a previous lack of jurisdiction, if, 
 when the attention of the court is called to the defect, jurisdic- 
 tion has been obtained. 14 The court may of its own motion, at 
 
 5 Hartog v. Memory, 116 U. S. 588, n Grace v. American Central Insur- 
 590-502. ance Company, 109 U. S. 278; Bors v. 
 
 6 Hartog v. Memory, 116 U. S. 588, Preston, 111 U. S. 252; Mansfield. C. & 
 590-592. L. M. Ry. Co. v. Swan, 111 U. S. 379. 
 
 7 Barry v. Edmunds, 110 U. S. 550, 12 Hartog v. Memory, 116 U. S. 588; 
 559. Davies v. Lathrop, 13 Fed. R. 565 ; Cuth- 
 
 8 Pacific Railroad v. Ketchum, 101 bert v. Galloway, 35 Fed. R. 466. 
 
 U. S. 289, 299. 13 People's Bank v. Calhoun, 102 U. S. 
 
 9 Harrison v. Urann, 1 Story, 64 ; Pond 256. 
 
 v. Vermont Valley It. R. Co., 12 Blatchf. 14 Pacific Railroad v. Ketchum, 101 
 280. U. S. 289, 298. 
 
 w Black v. Thorne, 10 Blatchf. 66.
 
 438 DISMISSING BILLS OTHERWISE THAN AT A HEARING. [CHAP. XX. 
 
 any time, irrespective of the pleadings, direct an inquiry as to 
 whether the jurisdictional facts exist. 15 Upon such an inquiry 
 the plaintiff or a defendant who has removed the case is entitled 
 to appear by counsel, and offer evidence in support of the juris- 
 diction. 16 No judge has the right to dismiss a suit under this 
 statute upon his personal conviction, however strong, unless the 
 facts on which his conviction is based appear upon the record, 
 and create a legal certainty of the conclusion derived from 
 them. 17 Where a plaintiff had acquired the causes of action 
 which he sought to enforce, solely for the purpose of collection, 
 in the Federal courts, under an agreement to pay back a certain 
 proportion of the net proceeds to his assignors, who could not 
 have sued therein, it was held that the suits should be dis- 
 missed. 18 When after all the pleadings are filed in a suit which 
 was brought in or removed to a Federal court, on the claim that 
 it is a case arising under the Constitution and laws of the United 
 States, it appears that the averments upon which the jurisdiction 
 is claimed are immaterial; it is the duty of the court to dismiss or 
 remand the cause. 19 To justify a dismissal under this statute, 
 the court must be satisfied that the object was to create a case 
 cognizable in the Federal courts. 20 Where a collusive transfer 
 of the cause of action was evidently made for another purpose, 
 it was held that the jurisdiction should be retained. 21 Admis- 
 sions by the defendant after a suit is brought cannot by reducing 
 the matter in dispute divest the court of jurisdiction. 22 A dis- 
 missal upon this ground should be without prejudice. 23 A motion 
 to dismiss for want of equity can only be made at a hearing. 24 
 A motion to dismiss for want of jurisdiction of the Federal court 
 may be made at any time. 25 
 
 » Hartog v. Memory, 116 U. S. 588 ; 29 Lanier v. Nash, 121 U. S. 404, 410. 
 Morris ». Gilmer, 129 U. S. 315. 21 Lanier v. Nash, 121 U. S. 404. 
 
 is Hartog v. Memory, 116 U. S. 588, 22 Fuller v. Met. Life Ins. Co., 37 Fed. R. 
 
 590-592 ; Barry v. Edmunds, 116 U. S. 550. 163. 
 
 17 Barry v. Edmunds, 116 U. S. 550, ^ Thompson v. Railroad Companies, 6 
 559. Wall. 134 ; Kendig v. Dean, 97 U. S. 423 ; 
 
 18 Farmington v. Pillsbury, 114 U. S. Van Norden ». Morton, 99 U. S. 378; 
 138 ; Williams v.Nottawa, 104 U. S. 209; Williams v. Nottawa, 104 U. S 209. 
 Bernards Township v. Stebbins, 109 U. S. 24 La Vega v. Lapsley, 1 Woods, 428 ; 
 341 ; New Providence v. Halsey, 117 U. S. Betts v. Lewis, 19 How. 72. 
 
 336 ; Little v. Giles, 118 U. S. 596 ; Nor- 25 La Vega v. Lapsley, 1 Woods, 428. 
 
 ton v European & N. Am. Ry. Co., 32 But see Fuller v. Metropolitan Life Ins. 
 
 Fed. R. 865. Co., 31 Fed. R. 696. 
 w Robinson v. Anderson. 121 U. S. 522.
 
 § 295.] ELECTION. 439 
 
 § 294. Dismissal for Failure to perfect or revive a Suit. — 
 When a suit has abated or become otherwise defective before a 
 decree, the party or parties against whom it can be continued 
 may, upon notice served upon the person or persons entitled to 
 revive or supply the defect in the same, move for and obtain 
 an order, directing that these revive or supply the defect, within 
 a certain limited time to be fixed by the court, or that else the 
 bill be dismissed. 1 If the suit abate by the death of one of 
 several co-plaintiffs, the order may be obtained against the sur- 
 vivors; and it seems that the objection that there is no personal 
 representative of the deceased plaintiff will not prevent the court 
 from granting such an order. 2 It is irregular in such cases to 
 move to dismiss a bill for want of prosecution ; and an order to 
 that effect, if obtained, will be discharged for irregularity. 3 
 
 § 295. Election. — When the plaintiff is suing both at law and 
 in equity, at the same time, for the same matter, the defendant 
 is entitled to an order that the plaintiff elect whether he will 
 proceed in equity or at law. 1 The case of a mortgagee is an 
 exception to this rule ; for, in the absence of any statutory re- 
 striction, he can proceed at the same time to foreclose his 
 mortgage in equity and sue on the bond at law. 2 This excep- 
 tion, however, it has been held in England, does not extend to 
 the case of a vendor seeking to enforce his lien and sue at law 
 for his debt. 3 In a particular case, the plaintiff may be allowed 
 to proceed partially at equity, and partially at law, and com- 
 pelled to make a special election. 4 The principle of election has 
 been extended to a case where the plaintiff sued at once in both 
 a foreign and a domestic court. 5 The defendant cannot move 
 for the order until after he has answered, and the time for ex- 
 ceptions has expired without one being taken, or the answer has 
 been adjudged sufficient. 6 A joint plea and answer is not, it 
 seems, sufficient to enable a defendant to obtain such an order. 7 
 
 § 204. i Arlamson v. Hall, 1 Turner & 2 Booth v. Booth, 2 Atk. 343; Dunkley 
 
 Russ. 258; Bolton v. Bolton, 2 Sim. & S. v. Van Buren, 3 J. Ch. (N. Y.) 330. 
 
 371. 3 Barker v. Smark, 3 Beav. 64. 
 
 8 Hinde v. Morton, 2 H. & M. 368. * Barker v. Dumaresque, 2 Atk. 119; 
 
 8 Eobinson v. Norton, 10 Beav. 484; Anon., 1 Vern. 104; Franklin v. Hersch, 
 
 Boddy v. Kent, 1 Meriv. 361 ; Sellers v. 3 Tenn. Ch. 467. 
 
 Dawson, 2 Dickens, 738. 6 Pieters v. Thompson, G. Cooper, 201. 
 
 §295. l Mitford'sPl. (Tyler's ed.) 340; 6 Mitford's PI. (Tyler's ed.) 340; Lei- 
 Carlisle v. Cooper, 3 C. E. Green (N. J.) cester v. Leicester, 10 Simons, 87. 
 241 ; Livingston v. Kane, 3 J. Ch. (N. Y.) ' Fisher v. Mee, 3 Meriv. 45 ; Soule v. 
 224. Corning, 11 Paige (N. Y.), 412.
 
 440 DISMISSING BILLS OTHERWISE THAN AT A HEARING. [CHAP. XX. 
 
 The order should allow the plaintiff a reasonable time within 
 which to make his election. 8 The plaintiff may move to dis- 
 charge the order for irregularity in obtaining it, or upon the 
 merits confessed in the answer or proved in an affidavit. 9 If, 
 upon such a motion, any doubt arises as to whether the suit in 
 equity and the action at law are for the same matter, it is cus- 
 tomary to direct an inquiry into that fact; 10 during the progress of 
 which, all proceedings in both courts are usually stayed, 11 unless 
 the plaintiff can show that justice will be better done by per- 
 mitting proceedings to some extent, when he may by special 
 leave continue in one or both at the court's discretion. 12 If the 
 plaintiff require further time within which to make his election, 
 he should apply for it to the court by motion upon notice. 13 At 
 the expiration of the time allowed him he must make his elec- 
 tion, which is usually done by riling a written statement of it 
 signed by him or his solicitor in the clerk's office ; 14 or else his 
 bill will be dismissed. 15 If he elect to proceed in equity, his 
 proceedings at law are stayed by the order, 16 and either the 
 defendant will be allowed to recover the costs of the action, or 
 the plaintiff will be directed by the court of equity to pay 
 them. 17 If the plaintiff elect to proceed at law, his bill in equity 
 will be dismissed with costs. 18 Such a dismissal will, however, 
 be no bar to a subsequent suit. 19 
 
 8 Bracken v. Martin, 3 Yerg. (Tenn.) 15 Daniell's Ch. Pr. (5th Am. ed.) 816; 
 55 ; Rogers v. Vosburgh, 4 J. Ch. (N. Y.) Boyd v. Heinzelman, 1 Ves. & B. 381. 
 84. i 6 Daniell's Ch. Pr. (5th Am. ed.) 816. 
 
 9 Daniell's Ch. Pr. (2d Am. ed.) 817. 17 Simpson v. Sadd, 16 C. B. 26; Car- 
 
 10 Mouseley v. Basnett, 1 Ves. & B. wick v. Young, 2 Swanst. 239. 
 
 382 n. 18 Jones v. Earl of Strafford, 3 P. Wins. 
 
 11 Mills v. Fry, 3 Ves. & B. 9 ; Anon., 2 79, 90, n. B. 
 
 Madd. 395 ; Daniell's Ch. Pr. 817. 19 Countess of Plymouth v. Bladon, 2 
 
 12 Amory v. Brodrick, Jacob, 530 ; Vern. 32 ; Livingston v. Kane, 3 J. Ch. 
 Carwick v. Young, 2 Swanst. 239. (N. Y. ) 224 ; Rogers v. Vosburgh, 4 J. Ch. 
 
 13 Daniell's Ch. Pr. (5th Am. ed.) 817. (N. Y.) 84. 
 w Daniell's Ch. Pr. (5th Am. ed.) 817.
 
 § 297.] MANNER OF HEARING A CAUSE. 441 
 
 CHAPTER XXI. 
 
 THE HEARING. 
 
 § 296. Bringing a Suit to a Hearing. — The old practice of bring- 
 ing a suit to a hearing was by the plaintiff's procuring an order 
 to set it down for hearing within four weeks after the closing of 
 the evidence ; upon his failure to do which a defendant might 
 either set it down himself, or move to dismiss the bill for want 
 of prosecution. The party setting it down was obliged to sue 
 out a subpoena to hear judgment, and have the same served upon 
 the solicitors of the other parties. 1 If a plaintiff wished to set a 
 cause down for a hearing upon bill and answer, he was obliged 
 to do so within the time allowed him for filing the replication. 2 
 The practice upon this subject in the United States courts is, 
 however, very loose, — some circuits following the analogy of the 
 English practice ; some regulating the matter by rule ; and some 
 adopting by custom a practice very similar to that of the courts 
 of the State where the circuit is held. Calendar practice in the 
 several circuits is usually modelled on the State practice in that 
 respect. If an original and a cross cause have been set down for 
 hearing at different times, and other causes intervene, the plaintiff 
 in whichever of them is below the other will usually upon motion 
 obtain leave to bring it forward, so that both causes may be heard 
 together. 3 A hearing will not be given upon an agreed state- 
 ment of facts without pleadings. 4 
 
 § 297. Manner of hearing a Cause. — The formal mode of hearing 
 a cause where all parties appear upon its being called on, has been 
 thus described. "The leading counsel for the plaintiff opens 
 the plaintiff's case, and in so doing states, first the bill, and then 
 the answers, if any : pointing out the matters in issue, and the 
 questions in equity arising therefrom ; after which the plaintiff's 
 
 §206. * Daniell's Ch. Pr. (5th Am. » Hindc's Pr. 415; 3 Blackstonc's Corn- 
 ed.) 963-971 ; 3 Bl. Com. 450. mentaries, 451. 
 
 2 Daniell's Ch. Pr. (5th Am. ed.) 904, 4 Nickerson v. Atchison, T. & S. F. R. 
 
 965. Co., 30 Fed. R. 85.
 
 442 THE HEARING. [CHAP. XXL 
 
 evidence is read, either by his leading or his junior counsel, and 
 their arguments in support of the case are adduced. The 
 counsel for the defendant are then heard, in support of the 
 defendant's case, and his evidence is read by them ; and the 
 plaintiff's senior counsel is then heard in reply. When all are 
 heard, the Court pronounces the decree, either immediately or 
 at a subsequent day." 1 It is usual here, however, to waive the 
 reading, and for counsel to state merely the substance of the 
 pleadings and testimony, which are submitted to the judge at, or 
 shortly after, the conclusion of the oral arguments, with written 
 arguments upon the law and the facts, called briefs or points. 
 The course is much the same where the cause is set down for a 
 hearing upon bill and answer. The pleadings only are then 
 read, and the answer is admitted to be true in all its allegations 
 of fact, 2 even when not stated positively, and the defendant 
 only avers that he believes and hopes to be able to prove 
 such facts. 3 But the plaintiff does not thereby admit conclu- 
 sions of law, nor probably allegations as to matters concerning 
 which the court takes judicial notice. 4 No other evidence 
 is permitted except matters of record to which the answer 
 refers. 5 It has been said that a judge may hear a cause in 
 which he was retained before he received his judicial appoint- 
 ment ; 6 but the almost universal practice is for a judge to refuse 
 to sit in such a case. 
 
 § 298. Rules of Decision upon a Hearing. — All decisions made 
 in a former stage of the cause are open for review upon the 
 final hearing. 1 But if the evidence is unchanged a judge will 
 rarely refuse to follow a ruling made by one of his colleagues in 
 the same 2 or a similar 3 case. Greater respect is paid to a ruling 
 by the Circuit Justice than to one by the Circuit Judge ; 4 and a 
 ruling by the Circuit Judge has more weight than one by a 
 District Judge. In matters of substantive as distinguished from 
 
 § 297. 1 Daniell's Ch. Pr. (5thAm.ed.) §'298. l Fourniquet v. Perkins, 16 
 
 1980. How. 82 ; Pulliam v. Pulliam, 10 Fed. R. 
 
 2 3 Bl. Com. 1448 ; Tainter v. Clark, 53. 
 
 5 Allen (Mass.), 66. 2 Cole Silver Mining Co. v. Virginia & 
 
 3 Brinckerhoff v. Brown, 7 J. Ch. Gold Hill Water Co., 1 Saw. 685. 
 (N.Y)217; Dale v. McEvers, 2 Cowen 3 Worswick Manuf. Co. v. City of Phil- 
 (N. Y.), 118. adelphia, 30 Fed. R. 625. 
 
 4 Taylor v. Barclay, 2 Simons. 213. 4 Preston v. Walsh, 10 Fed. R. 315. 
 6 Anon., 1 Barb. Ch. (N. Y.) 73. 
 
 6 The Richmond, 9 Fed. R. 863, and 
 citations.
 
 § 298.] RULES OF DECISION UPON A HEARING. 443 
 
 adjective law, that is, of the law creating rights but not of that 
 merely regulating practice ; the Federal courts are — certainly so 
 far as property in hind is affected thereby, and probably alto- 
 gether — bound by and will follow the statutes of the State 
 within whose jurisdiction is the property that is the subject of 
 the suit. 5 A State statute, however, which is merely declaratory 
 of the law cannot affect the rules applying to causes of action 
 which arose before its enactment. 6 Whether a State statute has 
 been properly passed so as to take effect, is a question of law, in 
 determining which the courts of the United States will follow 
 the decisions in the State wherein it is claimed to be in force. 7 
 So, too, in construing a statute or the Constitution of a State, 
 the Federal courts will in general follow the construction put 
 upon it by the State courts, " when that construction has been 
 settled by the decisions of its highest tribunal." 8 Even if, be- 
 fore the State courts have construed it, a State statute is given 
 one construction by a Federal court, and subsequently the 
 highest court of the State construes it differently ; or if the 
 Federal court have first construed it in ignorance of its con- 
 struction by the highest tribunal of the State: — the Federal' 
 courts will, in all subsequent cases, disregard their former ruling 
 and follow that of the State court. 9 It has even been held that 
 the Federal courts will not investigate the claim that the decision 
 of the State court was obtained by collusion between the parties 
 to the case in which it was obtained. 10 The courts of the United 
 States are not bound by a decision of a State court construing 
 a statute which is claimed to be a contract by the State; since 
 otherwise the clause in the national Constitution forbidding a 
 State to pass a law impairing the obligations of contracts might 
 be violated with impunity. 11 And, for a similar reason, if differ- 
 
 6 Watts v. Waddle, 6 Pet. 389 ; Mc- 87 ; Nesmith v. Sheldon, 7 How. 812 ; 
 
 Goon v. Scales, 9 Wall. 23 ; Gaines v. Walker v. State Harbor Commissioners, 
 
 Fuentes, 92 U. S. 10 ; Brine v. Insurance 17 Wall. 648 ; Township of Elmwood v. 
 
 Co., 96 U. S. 627 ; Pulliam v. Pulliam, 10 Marcy, 92 U. S. 289 ; Township of East 
 
 Fed. K. 53, 77. See Chapter XXVI., Sec- Oakland v. Skinner, 94 U. S. 255. 
 
 tion on Rules of Decision at Common 9 Fairfield v. County of Gallatin, 100 
 
 Law. U. S. 47. 
 
 6 Town of Koshkonong v. Burton, 104 10 Township of East Oakland v. Skin- 
 U. S. 668. ner, 94 U. S. 266. 
 
 7 Town of South Ottawa v. Perkins, 94 u Jefferson Branch Bank v. Skelly, 1 
 U. S. 260 ; Post v. Supervisors, 105 U. S. Black, 436. See Railroad Co. v. Falconer, 
 667. 103 U. S. 821, 822. 
 
 8 Polk's Lessee v. Wendal, 9 Cranch,
 
 444 THE HEARING. [CHAP. XXI. 
 
 ent constructions have been given to the same statute or consti- 
 tutional provision by the courts of a State at different times, the 
 Federal courts are not " bound to follow the later decisions, if 
 thereby contract rights which have accrued under earlier rulings 
 will be injuriously affected." 12 Otherwise, said Chief Justice 
 Taney, " the provision of the Constitution of the United States, 
 which secures to the citizens of another State the right to sue in 
 the courts of the United States, might become utterly useless 
 and nugatory." 13 It seems that the Federal courts would give 
 to a right established by a well-recognized local custom estab- 
 lished and acquiesced in within a State, the same force as if it 
 had been created by a State statute. 14 In deciding questions of 
 general commercial law, however, upon which the statutes of a 
 State are silent, the Federal courts are not bound by the 
 decisions of the State courts, but decide according to their own 
 views of what the law is and should be. 15 But in one case where 
 the rule of the Federal was different from that of the State 
 courts, Judge McCrary followed the latter, since otherwise there 
 was a probability that a party to the suit would be subjected to 
 a double payment. 16 
 
 § 299. Objections which cannot be made at the Hearing. — As 
 the provisions of the equity rules and the other regulations of 
 practice are chiefly designed to facilitate the speedy and orderly 
 progress of a cause to a hearing, after a cause has been brought 
 to a hearing it is a general rule that no objections as to form or 
 the delay in taking a previous proceeding will be allowed to be 
 taken then for the first time. 1 Thus, the rules provide that, " if 
 a defendant shall, at the hearing of a cause, object that a suit is 
 defective for want of parties not having by plea or answer taken 
 the objection, and therein specified by name or description the 
 parties to whom the objection applies, the court (if it shall think 
 fit) shall be at liberty to make a decree saving the rights of the 
 
 12 Chief Justice Waite in Douglass v. 15 Swift v. Tyson, 16 Pet. 1 ; Carpenter 
 County of Pike, 101 U. S. 677, 686. See v. The Providence Washington Ins. Co., 
 also Rowan v. Runnels, 5 How. 134 ; Ohio 16 Pet. 495 ; Oates v. National Bank, 100 
 Life Ins. and Tr. Co. v. Deholt, 16 How. U. S. 239 ; Railroad Company v. National 
 416; Gelpcke v. Dubuque, 1 Wall. 175; Bank, 102 U. S. 14; Butler v. Douglass, 
 Thompson v. Perrine, 103 U. S. 806. 3 Fed. R. 612. See Chapter XXVI., 
 
 13 Rowan v. Runnels, 5 How. 134. Section on Rules of Decision at Com- 
 
 14 Swift v. Tyson, 16 Pet. 1, 18 ; Gaines mon Law. 
 
 v. Fuentes, 92 U. S. 10 ; Railroad Co. v. 16 Sonstiby v. Keeley, 7 Fed. R. 447. 
 National Bank, 102 United States, 14, § 299. * Allen v. Mayor, &c. of N. Y., 
 29. 18 Blatch. 239.
 
 § 300.] ACTION OF THE COURT UPON A HEARING. 445 
 
 absent parties." 2 "Where the defendant shall, by his answer, 
 suggest that the bill is defective for want of parties, the plaintiff 
 shall be at liberty, within fourteen days after answer filed, to set 
 down the cause for argument upon that objection only ; and the 
 purpose for which the same is so set down shall be notified by 
 an entry, to be made in the clerk's order book in the form or to 
 the effect following, (that is to say) ; ' Set down upon the de- 
 fendant's objection for want of parties.' And where the plain- 
 tiff shall not so set down his cause, but shall proceed therewith 
 to a hearing, notwithstanding an objection for want of parties 
 taken by the answer, he .shall not, at the hearing of the cause, if 
 the defendant's objection shall then be allowed, be entitled as of 
 course to an order for liberty to amend his bill by adding parties. 
 But the court, if it thinks fit, shall be at liberty to dismiss the 
 bill." 3 An amended bill filed without leave upon the day of the 
 hearing may be disregarded by the court. 4 It seems that a plea 
 stating a mere conclusion of law or a plea unaccompanied by 
 the proper certificate of counsel and affidavit of the defendant 
 may also be disregarded. 5 Advantage may, however, be taken of 
 the laches of the plaintiff by a defendant who has not pleaded it. 6 
 And the objection that the allegations iu the bill show no ground 
 for the interference of a court of equity may be taken at any 
 time. 7 
 
 § 300. Action of the Court upon a Hearing. — The court may 
 upon the hearing of a cause either decide all the questions raised 
 therein and make a final decree, or merely dispose of some of 
 them and give directions to facilitate the decision of those which 
 remain. If the court inclines in favor of the defendant, it will 
 usually render a final decree dismissing the bill. The dismissal 
 may be absolute or without prejudice. An absolute decree of 
 dismissal is an absolute bar to any subsequent suit brought for 
 the same cause. 1 A dismissal without prejudice is no bar to 
 another suit brought for the same cause of action, provided that 
 the defects on account of which the bill was dismissed are rem- 
 edied. 2 A dismissal without prejudice is usually ordered when 
 
 2 Rule 53. 7 Baker u.Biddle, Baldwin, 394; Quir- 
 
 8 Rule 52. olo v. Ardito, 1 Fed. K. tHO. 
 
 4 Terry v. McLure, 103 United States, § 300. 1 Case v. Beauregard, 101 U. S. 
 442. 688. 
 
 5 National Bank v. Insurance Co., 104 2 Walden v. Bodley, 14 Pet. 156. 161 ; 
 U. S. 54. Daniell's Ch. Pr. (5th Am. ed.) 994, 905 ; 
 
 6 Baker v. Biddle, Baldwin, 394. Rosse v. Rust, 4 J. Ch. (N. Y.) 300.
 
 446 THE HEARING. [CHAP. XXI. 
 
 a bill is dismissed for want of parties, 3 or for want of jurisdiction 
 in a Federal court, 4 or for multifariousness, 5 or for "a slip or mis- 
 take in the pleadings or in the proof." 6 If on the other hand 
 the court inclines in favor of the plaintiff, unless the bill pray 
 merely for a perpetual injunction, it rarely renders a final decree 
 at the first hearing of the cause. It often directs a reference to 
 a master to take accounts or assess damages ; 7 and it not infre- 
 quently gives leave to either party to apply for further orders or 
 directions "at the foot of the decree" which it orders entered. 8 
 Under such a clause the court will usually listen to no further 
 applications, except as to matters concerning which directions 
 were contained in the decree first entered. 8 Thus, it has been 
 held that it will not under such a clause entertain an application 
 to set aside a sale made under a decree. 9 If the court is in 
 doubt concerning the facts, it may direct a feigned issue, or an 
 action at law or a reference to a master, to aid it in determining 
 the same. In one case, when a bill had been filed by a bond- 
 holder praying for the appointment of a receiver of a canal 
 company, the court at the hearing denied the application for a 
 receiver, but retained the bill so far as to compel the corporation 
 to file an annual account. 10 
 
 8 Kendig v. Dean, 97 U. S. 423. 7 See Chapter XXIII. 
 
 * Hartell v. Tilghman, 99 U. S. 547; 8 Legrand v. Whitehead, 1 Rubs. 309; 
 
 Gaylords v. Kelshaw, 1 Wall. 81. Wetmore v. St. Paul & P. R. R. Co., 3 
 
 5 Williams v. Jackson, 107 U. S. 478, Fed. R. 177. But see Hughes v. Jones, 
 
 484. 3 De G. F. & J. 307. 
 
 e Daniell's Ch. Pr. (2d Am. ed.) 994, 9 Wetmore v. St. Paul & P. R. R. Co., 
 
 995 ; M'Neill v. Cahill, 2 Bligh, 228 ; 3 Fed. R. 177. 
 
 Woollam v. Hearn, 7 Ves. 211, 222 ; Rosse 10 Stewart v. Chesapeake & Ohio Canal 
 
 v. Rust, 4 J. Ch. (N. Y.) 300. But see Co., 5 Fed. R. 149. 
 Ogsbury v. LaFarge, 2 N. Y. 113; and 
 §291.
 
 § 301.] POWER OF COURTS TO DIRECT ISSUES AT LAW. 447 
 
 CHAPTER XXII. 
 
 ISSUES AT LAW. 
 
 § 301. Power of Courts to direct Issues at Law. — When the 
 chancellor was in doubt concerning any question of fact arising 
 in the cause, the evidence in regard to which was conflicting or 
 insufficient, 1 it was his custom to compel its trial before a jury 
 upon a feigned issue ; and, if their verdict was satisfactory to 
 him, to assume the truth of the facts established by the same as 
 the basis of his decree. 2 This power of the chancellor is also 
 vested, independently of an}' special statute, in all the courts of 
 the United States which have equitable jurisdiction ; 3 but in cases 
 arising under the patent laws it has been increased by a recent 
 statutory enactment, providing that the Circuit Courts of the 
 United States, " when sitting in equity for the trial of patent 
 causes, may impanel a jury of not less than five and not more 
 than twelve persons, subject to such general rules in the prem- 
 ises as may from time to time be made by the Supreme Court, 4 
 and submit to them such questions of fact arising in such cause 
 as such circuit court shall deem expedient ; and the verdict of 
 such jury shall be treated and proceeded upon in the same man- 
 ner and with the same effect as in the case of issues sent from 
 chancery to a court of law and returned with such findings." 5 
 The court may at any time decide a cause without a trial of an 
 issue which it has ordered, and even without revoking its previ- 
 ous order directing one. 6 The order of a judge directing an issue 
 at law is discretionary, and it is doubtful whether or not it may 
 be reviewed upon appeal. 7 It was formerly an almost invariable 
 
 § 301. l Moons v. DeBernales, 1 Russ. 5 18 St. at L. ch. 77, p. 315; 1st Supp. 
 
 301 ; Burkett v. Randall, 3 Mer. 466. U. S. R. S. 136; Watt v. Starke, 101 U. S. 
 
 2 3 Bl. Com. 452. 247. 
 
 » Harding v. Handy, 11 Wheat. 103; 6 Field v. Holland, 6 Cranch, 8; Cook 
 
 Goodyear v. Providence Rubber Co., 2 v. Bay, 4 How. (Miss.) 485. 
 Cliff. 351 1 Johnson v. Harmon, 94 U. S. 7 See Black v. Lamb, 1 Beasley (N.J.), 
 
 371, 378. 108 ; Ward v. Hill, 4 Gray (Mass.), 593; 
 
 4 No rules upon this subject have Crittenden v. Field, 8 Gray (Mass.), 621. 
 hitherto been made.
 
 448 
 
 ISSUES AT LAW. 
 
 [CHAP. XXII. 
 
 custom to direct an issue when the question to be determined 
 was the validity of a will as against an heir, or the true heir-at- 
 law of a decedent, or the right of a rector to tithes. 8 It was 
 very common, moreover, when an allegation in a sworn answer, 
 the plaintiff not having waived answer under oath, was only 
 controverted by the testimony of a single witness supported by 
 corroborating circumstances ; 9 or when, by determining in the 
 way he inclined, the judge would find a person guilty of forgery. 10 
 An issue may be directed notwithstanding a report of auditors 
 upon the facts. 11 The court sometimes directs only a single 
 issue, and sometimes several, according to the number of sub- 
 stantial points upon which it deems it necessary to take the 
 opinion of a jury ; and it will, when the question to be decided 
 embraces several disputed circumstances, direct an issue upon 
 each of them. 12 If the parties cannot agree upon the form of an 
 issue, it will be settled either by the judge or by a master, as the 
 court deems most expedient. 13 By going to trial upon an issue 
 neither party is precluded from any right he may have to after- 
 wards appeal from the order directing it. 14 
 
 § 302. Matters concerning which an Issue is directed — No party 
 will be permitted to take an issue in a different form from that 
 which he has stated in his pleadings j 1 but the court may upon its 
 own motion direct an issue to try a matter not in issue arising 
 upon the hearing, and which it thinks should be determined 
 before a final decree is rendered. 2 An issue also may be directed 
 upon claims brought in under a decree by persons not upon the 
 record. 3 An issue will not, however, be directed to establish a 
 point which a party set up in his pleading but omitted in his 
 proof. 4 
 
 8 3 Bl. Com. 452 ; Lord Fingal v. 
 Blake, 1 Molloy, 113 ; Vaigneur v. Kirk, 
 2 Desaus. (S. C.) G40 ; Williams v. Price, 
 4 Price, 156, 160. 
 
 9 Darnell's Ch. Pr. ch. xxvi. § 1. 
 
 10 Bishop of Winchester v. Fournier, 
 2 Ves. Sen. 445, 446 ; Apthorp v. Comstock, 
 2 Paige (N. Y.), 482. But see Peake v. 
 Highfield, 1 Russ. 559. 
 
 11 Field v. Holland, 6 Cranch, 8. 
 
 12 Bryan v. Parker, 1 Younge & C. 170 ; 
 Bailey v. Sewell, 1 Russ. 239; Earl of 
 Newburgh v. Countess of Newburgh, 6 
 Madd. 364. 
 
 1 3 Daniell's Ch. Pr. ch. xxvi. § 1. 
 
 14 White v. Lisle, 3 Swanst. 342 ; Legard 
 v. Daly, 1 Ves. Sen. 192 ; De Tastet v. Bor- 
 denave, Jacob, 516. 
 
 § 302. ! St. Paul's v. Kettle, 2 V. & B. 
 1 ; Bennett v. Neale, Wightw. 324 ; Sav- 
 age v. Carroll, 1 Ball & B. 548. 
 
 2 Batch v. Tucker, 2 Ch. Cas. 40. 
 
 8 Price v. Price, cited in 2 Smith's Ch. 
 Pr. 76. 
 
 4 Savage v. Carroll, 1 Ball & B. 548 ; 
 Price v. Berrington, 3 Macn. & G. 486.
 
 § 304.] MANNER OF TRYING AN ISSUE. 449 
 
 § 303. Time when an Issue is directed. — According to the old 
 practice an issue was rarely directed before the original hearing 
 of a cause. 1 Instances have occurred, however, when this has 
 been done before that time upon motion, 2 and even to deter- 
 mine the facts upon a motion for an injunction or a receiver, 
 when the affidavits for or against the motion were conflicting. 3 
 An issue has been often granted after the original hearing at a 
 hearing for further directions; 4 and even afterwards. 5 It has 
 been said that, in the Federal courts, an order for an issue should 
 not be made until all the proofs have been taken and publica- 
 tion has passed. 6 Under the statute providing for the direction 
 of issues in patent causes, it would seem that one can now 
 be directed by an interlocutory order more frequently than 
 formerly. 7 
 
 § 304. Manner of trying an Issue. — The manner of trying a 
 feigned issue is thus described by Blackstone. " But, as no jury 
 can be summoned to attend this court, the fact is usually directed 
 to be tried at the bar of the court of King's bench, or at the 
 assizes upon a feigy\ed issue. For (in order to bring it there, 
 and have the point in dispute, and that only, put in issue) an 
 action is brought, wherein the plaintiff, by a fiction, declares 
 that he laid a wager of 51. with the defendant that A was heir-at- 
 law to B ; and then avers that he is so ; and therefore demands 
 the 51. The defendant admits the feigned wager, but avers that 
 A is not the heir to B, and thereupon that issue is joined, which 
 is directed out of chancery to be tried ; and thus the verdict of 
 the juror at law determines the fact in the court of equity. 
 These feigned issues seem borrowed from the sponsio judieialis 
 of the Romans : and are also frequently used in the courts of 
 law, by consent of the parties, to determine some disputed right 
 without the formality of pleading, and thereby to save much 
 time and expense in the decision of a cause." x The legal fiction 
 is, however, now practically out of use ; and issues are tried upon 
 
 § 303. i Fullagar v. Clark, 18 Ves. 481. 5 Price v. Price, cited in 2 Smith's Ch. 
 
 2 Middleton v. Sherburne, 4 Y. & C. Pr. 76. 
 
 358; Kent v. Burgess, 11 Simons, 361 ; 6 Goodyear ?>. Providence Rubber Co., 
 
 Townley v. Deare, 3 Beav. 213 ; Lan- 2 Fisher's Pat. Cas. 409. 
 
 cashire v. Lancashire, 9 Beav. 259. * 18 St. at L. ch. 77, p. 315; 1st Supp. 
 
 3 Gardiner v. Rowe, 4 Madd. 236 ; De- TJ. S. R. S. 136. 
 
 Tastet v. Bordenave, Jacob, 516. § 304. • 3 Bl. Com. 452. 
 
 4 New Orleans, G. L. & B. Co. v. 
 Dudley, 8 Paige (N Y.), 452. 
 
 29
 
 450 ISSUES AT LAW. [CHAP. XXII. 
 
 the common-law side of a Circuit or District Court frequently 
 by the same judge that directed them. 2 The course of proceed- 
 ing upon the trial of an issue is substantially the same as that in 
 ordinary trials at common law, unless the judge who directed it 
 has given special directions upon the subject. 3 When, however, 
 a will is sought to be proved against an heir-at-law, at the suit of 
 a devisee, it was necessary by the former practice to prove the 
 execution of the will by examining all the witnesses who were 
 alive and capable of giving testimony. 4 If the order for an 
 issue direct that a number of witnesses be examined, but the 
 plaintiff declines to call some, the judge himself will call and 
 examine the rest. 5 It seems, too, that the jury should be sworn 
 in the words of the order of issue. 6 The order of issue, however, 
 usually contains directions as to admissions to be made and doc- 
 uments to be produced by the parties. 7 No admission of any 
 fact not clearly admitted by the pleadings will, however, be 
 required. 8 If such directions are omitted in the order for the 
 issue, they may be obtained afterwards upon motion. 9 The party 
 upon whom the burden of proof rests, whether he be plaintiff or 
 defendant in the original suit, is directed by the order to act as 
 plaintiff in the issue. 10 It is the defendant's duty to name an 
 attorney to appear for him at the trial of the issue. If he fail to 
 do so, it has been held that an order may be obtained directing 
 that he name an attorney in four days, or else that the issue be 
 taken as tried and a verdict given for the plaintiff. 11 The decree 
 or order for the issue should specify a time when it is to be tried. 12 
 If the plaintiff make default in having the case ready for trial at 
 the appointed time, 13 or either party fail then to appear, the 
 court will order the issue taken pro confesso against him, unless 
 he can show a reasonable ground for a postponement. 14 It seems, 
 
 2 See Wilson r. Riddle, 123 U. S. 608. (N. Y.), 482 ; Cart v. Hodgkin, 3 Swanst. 
 
 3 See Kerr v. South Park Commission- 161. 
 
 ers, 117 U. S. 379 ; Wilson v. Riddle, 123 8 Duke of Beaufort v. Morris, 2 Phil. 
 
 U. S. 608. 683. 
 
 4 Townsend v. Ives, 1 Wilson, 216 ; 9 Marsh v. Sibbald, 2 V. & B. 375. 
 Ogle ». Cook, 1 Ves. Sen. 177 ; Bullen v. 10 Parker v. Morrell, 2 Phil. 453. 
 Michel, 2 Price, 399 ; Bootle v. Blundell, u Wilson v. Ginger, 2 Dick. 521 ; Hart- 
 19 Ves. 494. land v. Dancocks, 5 De G. & Sin. 561. 
 
 5 Groom v. Chambers, 2 Mont. & Ayr. 12 DanielPs Ch. Pr. ch. xxvi. § 1. 
 
 742 " Bearblock v. Tyler, 1 J & W. 225 ; 
 
 6 Wilson v. Barnum, 1 Wall. Jr. 342. Casborne v. Barshnm, 5 M. & C. 113. 
 
 7 Duke of Beaufort v. Morris, 2 Phil. u Casborne u.Barsham, 5 M & C. 113; 
 683 ; Apthorp v. Comstock, 2 Paige Ilargrave v. Ilargrave, 8 Beav. 2S9.
 
 §305.] EFFECT OF THE FINDING OF A JUKY UPON AN ISSUE. 451 
 
 that an application for a postponement, 15 or for a special jury, if 
 one be desired, 16 should be made to the judge who directed the 
 issue. A person interested in the result of an issue, but who 
 refuses to be a party to it, may be allowed to attend the trial by 
 counsel, in which case he may be compelled to produce docu- 
 ments material to the case and in his possession. 17 After the 
 trial, the trial judge certifies how the verdict was found, but 
 judgment should not be entered upon it. 18 If any special cir- 
 cumstances have occurred at the trial which he thinks it right to 
 report to the court, he indorses the posted. 10 He may also furnish 
 to the court of equity a. description of the trial. 20 An irregu- 
 larity or omission in this respect may, however, be corrected or 
 disregarded. 21 
 
 § 305. Effect of the Finding of a Jury upon an Issue. — " The 
 verdict of a jury upon an issue out of chancery is only advisory 
 and never conclusive upon the court. It is intended to inform 
 the conscience of the Chancellor. It may be disregarded, and a 
 decree rendered contrary to it." 1 If, therefore, either party be 
 dissatisfied, he must move for a new trial on the equity and not 
 on the common-law side of the court; 2 "and for that purpose 
 the party applying for a new trial must procure notes of tho 
 proceedings and of the evidence given at the trial for the use 
 of the Chancellor. This is done either by moving the Chancel- 
 lor to send to the judge who tried the issue, for his notes of trial ; 
 or procuring a statement of the same in some other proper way. 
 The Chancellor then has before him the evidence given to the 
 jury, and the proceedings at the trial, and may be satisfied, by 
 an examination thereof, that the verdict ought not to be dis- 
 turbed. The evidence and proceedings then become a part of 
 the record, and go up to the court of appeal if an appeal is 
 taken." 3 Unless such a motion is made, no error committed 
 in the course of the trial of the issue can be reviewed upon 
 
 ifi Kebel v. Philpot, 9 Simons, G14. 21 Wilson v. Riddle, 123 U. S. COS. 
 
 " Anon., 2 P. Wnis. 68. § 305. 1 Mr. Justice Bradley in Watt 
 
 " Pindar v. Smith, Mad. & Geld. 48. v. Starke, 101 U. S. 247, 252. See also 
 
 19 Kerr v. South Park Commissioners, Basey v. Gallagher, 20 Wall. G70 ; Allen 
 
 117 U. S. 379. v. Blunt, 3 Story, 742, 7 10. 
 19 White v. Lisle, 3 Swanst. 342 ; Tren- 2 Watt v. Starke, 101 U. S. 247, 250; 
 
 ton Ranking Co. v. Rossell, 1 Green Ch. Johnson v. Harmon, 91 U. S. 371. 378. 
 
 (N.J.) I'.!. 3 Mr. Justice Bradley in Watt v. 
 
 a> Bassett v. Johnson, 1 Green Ch. Starke, 101 U. S. 247, 250, 251. See also 
 
 (N. J.) 154. Johnson v. Harmon, 94 U. S. 371.
 
 452 ISSUES AT LAW. [CHAP. XXII. 
 
 appeal. 4 Such an application should be made by motion or pe- 
 tition before the cause comes on for hearing upon further direc- 
 tions. 5 The form of an issue cannot, however, be changed in this 
 manner. A party desiring to alter it must do so by presenting a 
 petition for a rehearing of the decree or order directing it. 6 The 
 manner in which the verdict is reviewed in equity is thus described 
 by Lord Eldon : " In considering whether, in such a case as this, 
 the verdict ought to be disturbed by a new trial, allow me to say 
 that this court, in granting or refusing new trials, proceeds upon 
 very different principles from those of a court of law. Issues are 
 directed to satisfy the judge, which judge is supposed, after he is in 
 possession of all that passed upon the trial, to know all that passed 
 there ; and looking at the depositions in the cause, and the pro- 
 ceedings both here and at law, he is to see whether, on the whole, 
 they do or do not satisfy him. It has been ruled over and over 
 again, that if, on the trial of an issue, a judge reject evidence which 
 ought to have been received, or receive evidence which ought to 
 have been refused, though in that case a court of law would grant 
 a new trial, yet if this court is satisfied, that if the evidence 
 improperly received had been rejected, or the evidence improp- 
 erly rejected had been received, the verdict ought not to have 
 been different, it will not grant a new trial merely upon such 
 grounds." 7 The usual grounds for directing a new trial of an 
 issue are, " 1st, the alleged improper summing up of the judge ; 
 2dly, because the weight of evidence is against the verdict ; 
 and 3dly, because of an informality in the evidence." 8 Surprise 
 and fraud are also reasons for granting a new trial. 9 When the 
 dispute concerns the title to land, in imitation of courts of law 
 two trials of the issue have often been granted, when the first 
 verdict was satisfactory upon the evidence ; 10 and sometimes the 
 court has directed a second trial for the solemn determination of 
 the matter, without setting aside the first verdict, the effect 
 
 4 Brockett v. Brockett. 3 How. 091 ; 494 ; Tatham v. Wright, 2 Russ. & M. 1 ; 
 Johnson v. Harmon, 94 U. S. 371 ; Watt "Watt v. Starke. 101 U. S. 247, 252. 
 
 v. Starke, 101 U. S. 247. 8 Smith's Ch. Pr. (Fhila. ed.) vol. ii. 
 
 5 Attornev-General v. Montgomery, 2 p. 84. See also Tatham v. Wright, 2 
 Atk. 378 ; Van Alst v. Hunter, 5 J. Ch. Russ. & M. 1 ; Watt v. Starke, 101 U. S. 
 (N. Y.) 148, 152. 247, 253. 
 
 6 Daniell's Ch. Pr. (3d American ed.) 9 Exton v. Turner, 2 Ch. Cas. 80; Stan- 
 U14, den v. Edwards, 1 Ves. Jr. 133. 
 
 7 Lord Eldon in Barker v. Ray, 2 Russ. 10 Earl of Darlington v. Bowes, 1 Eden, 
 63. See also Bootle v. Blundeil, 19 Ves. 271 ; Stace v. Mabbot, 2 Ves. Sen. 552.
 
 § 300.] PROCEEDINGS AFTER THE TRIAL OF AN ISSUE. 453 
 
 of which was that the first verdict was admitted in evidence 
 upon the second trial, and had its weight with the jury. 11 In 
 such case, the court usually made it a condition of granting a 
 second trial, that the applicant should pay to the other party the 
 costs of the first. 12 
 
 § 306. Proceedings after the Trial of an Issue. — After the trial 
 of an issue and the completion of the record by the addition of 
 the postea, the cause, unless a new trial is obtained, should be 
 set down for hearing. 1 This may be done in the usual manner; 
 but it seems, not before the expiration of the first four days of 
 the term following the trial, in order that the party against 
 whom the verdict has been found may have an opportunity of 
 moving for a new trial. 2 The cause then comes on in the regular 
 course, when such final or other decree as is proper is pronounced. 
 The costs of an issue do not follow the verdict as a matter of 
 course, but are in the discretion of the court which directed the 
 issue; 3 though they are usually given to the party in whose favor 
 the verdict was rendered. 4 In one case the court ordered an 
 advance out of a fund in its possession, in order to enable the 
 parties to try an issue directed by it. 5 
 
 « Baker v. Hart, 3 Atk. 542. 3 Decker u. Caskey, 2 Green Ch. (N. J.) 
 
 12 Baker <•. Hart, 3 Atk. 542 ; Edwin v. 446. 
 
 Thomas, 1 Vern. 483. * Corporation of Rochester v. Lee, 2 
 
 § 300.' i Allen v. Blunt, 3 Story, 742 ; De G. M. G. 427. 
 
 Daniell'a Ch. Pr. ch. xxvi. 5 Coouibs v. Brooks, 3 DeG. & S. 452. 
 2 1 Nevvland's Ch. Pr. 357.
 
 454 PROCEEDINGS IN A MASTER'S OFFICE. [CHAP. XXIII. 
 
 CHAPTER XXIII. 
 
 PROCEEDINGS IN A MASTER'S OFFICE. 
 
 § 307. References to Masters in General. — The labors of a judge 
 of a court of equity are often materially lightened by referring 
 the consideration of matters of fact to a master in chancery, who 
 is directed by it to investigate the same and report his opinion 
 thereon to the court. Certain ministerial acts which a court of 
 equity undertakes are also performed by it through a master. 
 The matters which are ordinarily referred to masters in chancery 
 are inquiries, as to whether pleadings or other proceedings in a 
 suit in equity contain impertinence or scandal ; as to who are 
 the heirs, next of kin, creditors, or members of a particular class 
 of legatees of a person whose estate is in the hands of the court 
 for distribution ; as to whether the title to real estate is good ; 
 and as to the state of the law of a foreign country; as to whether 
 one of two books or other publications is pirated from the other ; 
 or as to the amount of damage suffered by the granting or with- 
 holding of an injunction ; the taking of accounts ; the compu- 
 tation of interest ; the settlement of conveyances, and other 
 deeds ; the selling of property ; the appointment of trustees, 
 receivers, and guardians ; and the superintendence of the per- 
 formance of their duties by receivers. The extent of a master's 
 authority is limited by the decree or order appointing him ; 1 and 
 it has been said that it cannot be extended even by consent. 2 
 The rules provide that "every decree for an account of the 
 personal estate of a testator or intestate shall contain a direction 
 to the master to whom it is referred to take the same to inquire 
 and state to the court what parts, if any, of such personal estate 
 are outstanding undisposed of, unless the court shall otherwise 
 direct." 3 
 
 § 307. 1 Lonsdale Co. v. Moies, 2 Cliff. R. R. of Iowa, 2 Fed. R. 656 ; Gordon v. 
 538. Hobart, 2 Story, 243. 
 
 2 Farmers' L. & Tr. Co. v. Central 3 Rule 73. 
 

 
 § 309.] BRINGING ON A REFERENCE. 455 
 
 § 308. Who may be appointed Master. — The Circuit Courts, 
 "both the judges concurring in the appointment," have the power 
 to appoint standing masters in chancery in their respective dis- 
 tricts. 1 A Circuit Court may also appoint a master pro hac vice 
 in any particular case. 2 A recent statute provides that "no 
 clerk of the district or circuit courts of the United States, or 
 their deputies, shall be appointed a receiver or master in any case. 
 except where a judge of said court shall determine that special 
 reasons exist therefor, to be assigned in the order of appoint- 
 ment." 3 It has been held at circuit that this statutory prohibi- 
 tion is for the benefit of the parties to the litigation, and may be 
 waived by their consent to an order appointing such an officer 
 master in a particular case ; and that after such an order or 
 decree has thus been entered and the parties have proceeded 
 before the master, it may be amended by the insertion of a clause 
 stating that the court has determined " that such consent is a 
 sufficient special reason for such appointment." 4 Another stat- 
 ute provides that "no person related to any justice or judge of 
 any court of the United States by affinity or consanguinity, 
 within the degree of first cousin, shall hereafter be appointed 
 by such court or judge to be employed by such court or judge 
 in any office or duty in any court of which such justice or judge 
 may be a member." 5 
 
 § 309. Bringing on a Reference. — The rules provide that, 
 whenever a reference is made, the party at whose instance or for 
 whose benefit it was directed must bring the same to a hearing 
 on or before the rule-day next succeeding the date of the order 
 for a reference. 1 Otherwise, the adverse party may forthwith 
 cause proceedings to be had before the master at the costs of the 
 party who procured the reference. 2 The master need not report 
 evidence unless required by either party. 3 It is the master's 
 duty, as soon as he reasonably can after the matter referred to 
 him is brought before him, to assign a time and place for pro- 
 ceeding, and to give due notice thereof to each of the parties, or 
 their solicitors. 4 Notice may be served by mail or otherwise. 5 It 
 
 § 308. 1 Rule 82. 2 Rule 82. 8 Union Supar Refinery v. Mathiesson, 
 
 » 20 St. at L. ch. 18.°., p. 415. 3 Cliff. 146, 149. Sir Kerosene Lamp 
 
 * Fischer v. Hayes, 22 Fed. R. 92. Heater Co. v. Fisher, 1 Fed. R. 91. 
 
 6 U. 8. St. at L. p. 552, ch. 373, § 7. 4 Rule 75. 
 
 §309. l Mule 74. 6 Kerosene Lamp Heater Co v. Fisher, 
 
 2 K u i e 74. 1 Fed. R. 91.
 
 456 PEOCEEDINGS IN A MASTER'S OFFICE. [CHAP. XXIII. 
 
 need not be served by the marshal. 6 By the old English practice 
 parties interested in the subject-matter of a reference were brought 
 before the court by the service of a warrant. This was a memo- 
 ran (him, upon a slip of paper entitled in the cause, and signed by 
 the master, appointing a day and hour for all parties concerned to 
 attend him on the matter of the reference. 7 It was in substan- 
 tially the following form : " By virtue of an order of reference, 
 I do appoint to consider the matters thereby to me referred, on 
 next, at of the clock, in the noon, at my Cham- 
 bers in , at which time and place all parties concerned are 
 
 to attend. [Signature.] Dated the day of , ." 8 
 
 It is a better practice, however, for the warrant to contain a state- 
 ment of the nature of the reference. 9 This warrant is often called 
 a "summons." 10 There was required to be at least one clear day 
 between the day of issuing the warrant and the day appointed 
 by it for the attendance of the parties thereon. 11 The warrant 
 was obtained from the master's clerk by the solicitor applying 
 for it; and the latter underwrote a memorandum expressing its 
 object, and saw that dne service of it was made. 12 Whenever 
 a document of any kind was left at the master's office by the 
 solicitor of either of the parties, he usually took out a warrant, 
 which he underwrote, " on leaving the," &c. 13 This was termed 
 a " warrant on leaving," and was served in the usual manner, 
 but was considered a mere formal notice, to afford the opposite 
 party an opportunity of obtaining a copy of the document left 
 that he might either admit or contest the circumstances there 
 stated, as he might be advised. 14 
 
 § 310. Parties entitled to attend a Reference before a Master. — 
 The general rule appears to be, that all parties beneficially inter- 
 ested, either in the estate or in the fund or matter in question, 
 are entitled to attend before the master on all those proceedings 
 which may affect their interests, or increase or diminish their 
 proportion in the fund. 1 The only exception to this rule is said 
 to be the case of a reference to a master of the title to an estate 
 
 Kerosene Lamp Heater Co. r. Fisher, n 1 Newland's Chan. Pr. 324. See 
 
 1 Fed. R. 91. Bernie v. Vandever, 16 Ark. 616. 
 
 7 Darnell's Ch. Pr. ch. xxvi. 12 Daniell's Ch. Pr. oh. xxvi. 
 
 8 Daniell's Ch. Pr. ch. xxvi. 13 Daniell's Ch. Pr. ch. xxvi. 
 
 9 Manhattan Co. v. Evertson, 4 Paige, 14 Daniell's Ch. Pr. ch. xxvi. See Ma n- 
 (N. Y.) 276. hattan Co. v. Evertson, 4 Paige (N.Y.), 276. 
 
 10 Manhattan Co. v. Evertson, 4 Paige, § 310. 1 Daniell's Ch. Pr. ch. xxvi 
 (N. Y.) 276. See Johnson v. Waters, 111 U. S. 640. 

 
 § 311.] PROCEEDINGS BEFORE A MASTER IN GENERAL. 457 
 
 purchased under a decree, when the vendor's solicitor only has 
 the right to appear before the master on the inquiry. 2 An exec- 
 utor, as the legal representative of his testator, is entitled to 
 attend on all proceedings relating to the charges of creditors 
 seeking payment out of the personal estate; but after there has 
 been a report of debts, if all the persons interested in the per- 
 sonal estate are before the court the executor is only entitled to 
 attend on those proceedings in which he is personally interested 
 as an accounting party. 3 Trustees were formerly not allowed 
 (except in proceedings carried on by themselves) to attend 
 before the master in cases where all the beneficiaries were before 
 the court; but if there were any persons hi esse, or who might 
 " come into esse" who might become interested and whose in- 
 terests were only represented by the trustees, and were not too 
 remote, the trustees were entitled to attend the proceedings 
 affecting those interests. 4 The rule that all parties interested 
 in the result are entitled to attend before the master applies not 
 only to those who are parties to the record, but to those who are 
 "quasi parties," by having come in under the decree and estab- 
 lished a claim. 5 A party who has appeared, but allowed a decree 
 to be taken against him by default for want of an answer, is, it 
 seems, entitled to notice of the proceedings against him under 
 the decree in the master's office ; 6 but cannot appear upon such 
 notice before the master without previously obtaining an order 
 for that purpose, which is usually only granted upon terms. 7 
 The proper course to test a party's right to attend before 
 a master is, after the latter' s refusal, to apply to the court by 
 petition for an order permitting the party to attend before 
 him. 8 
 
 § 311. Proceedings before a Master in General. — The rules 
 give the master authority to regulate all the proceedings upon 
 a reference to him. 1 In case of an abuse of his discretion by a 
 master, any party aggrieved may apply to the court for an order, 
 requiring the master to act properly ; 2 but such applications are 
 
 2 Daniell's Ch. Pr. ch. xxvi. 8 Daniell's Ch. Pr. ch. xxvi. 
 
 8 Daniell's Ch. Pr. ch. xxvi. § 311. * Rule 77. 
 
 4 Daniell's Ch. Pr. ch. xxvi. - Daniell's Ch. Pr. ch. xxvi ; Bate Re- 
 
 6 Daniell's Ch. Pr. ch. xxvi. frigerating: Co. v. Gillette, 28 Fed. R. 673 ; 
 
 6 King v. Bryant. 3 M. & C. 191 ; Dan- Rule 75. See Re Thomas, 35 Fed. R. 
 iell's Ch. Pr. ch. xxvi. 337, 340. 
 
 7 Heyn v. Heyn, Jacob, 49 ; Daniell's 
 Ch. Pr. ch. xxvi.
 
 458 
 
 PROCEEDINGS IN A MASTER'S OFFICE. [CHAP. XXIII. 
 
 not encouraged, 3 and are only granted in extraordinary cases. 4 
 If any party fail to appear at the appointed time and place, the 
 master may either proceed ex parte, or, in his discretion, may 
 adjourn the proceedings. 5 In the latter case, he should give notice 
 of the adjournment to the party who failed to appear, or to his 
 solicitor. 6 It is the master's duty to proceed in the reference 
 with all reasonable diligence and with the least practicable 
 delay. 7 Otherwise, either party may apply to the court or a judge 
 thereof, for an order requiring the master to speed the proceed- 
 ings and to make his report, and to certify to the court or judge the 
 reasons for any delay. 8 There is no necessity for the master's tak- 
 ing any oath, unless the order of reference especially requires him 
 to do so. 9 All parties who are required to account before a master 
 must bring in their accounts in the form of debtor and creditor. 10 
 Should a party fail to do so, the master may make an order 
 requiring him to furnish such an account. 11 The order should 
 not be granted till the first hearing of the reference. 12 The order 
 must be served personally with a copy of this order and a notice 
 of the day to which the hearing is adjourned. 13 Service may be 
 made by any disinterested person. 1 * If the defendant then fails 
 to appear and account, he is in contempt. 15 If any of the other 
 parties is dissatisfied with the accounts rendered, he may exam- 
 ine the accounting party either orally or by interrogatories or by 
 deposition, as the master directs. 16 By the English practice, the 
 time for a single hearing before a master did not usually exceed 
 one hour, unless the master continued the hearing longer, when 
 an increased fee might, it seems, be charged. 17 It was the duty 
 of the master or his clerk to mark in the master's book the 
 names of the solicitors who attended, and no other attendance 
 than those so marked was allowed in taxing costs. 18 In the 
 
 3 Lull v. Clark, 20 Fed. R. 454 ; Woos- 
 ter v. Gumbirnner, 20 Fed. R. 167 ; Bate 
 Refrigerating Co. v. Gillette, 28 Fed. R. 
 673. 
 
 4 Lull v. Clark, 20 Fed. R. 454; Wooster 
 v. Gumbirnner, 20 Fed. R. 167 ; Bate Re- 
 frigerating Co. v. Gillette, 28 Fed. R. 673. 
 
 5 Rule 75. 
 
 6 Rule 75. 
 1 Rule 75. 
 
 8 Rule 75. 
 
 9 Thompson v. Smith, 2 Bond, 320. 
 if Rule 79. 
 
 11 Kerosene Lamp Heater 
 Fisher, 1 Fed. R. 91. 
 
 12 Kerosene Lamp Heater 
 Fisher, 1 Fed. R. 91. 
 
 13 Kerosene Lamp 
 Fisher, 1 Fed. R. 91. 
 
 14 Kerosene Lamp 
 Fisher, 1 Fed. R. 91. 
 
 15 Kerosene Lamp 
 Fisher, 1 Fed. R. 91. 
 
 i 6 Rule 79. 
 
 tt Daniell's Ch. Pr. ch. xxvi 
 
 13 Daniell's Ch. Pr. ch. xxvi 
 
 Co. 
 
 Co. 
 
 Heater Co. v. 
 
 Heater Co. v. 
 Heater Co. v.
 
 § 312.] A STATE OF FACTS. 459 
 
 Southern District of New York, a master is forbidden to adjourn 
 a reference for more than ten days without the written consent 
 of all the parties or the authorization of one of the judges. 19 
 
 § 312. A state of Facts. — By the English practice a party 
 who intended to examine witnesses before a master under a 
 decree was obliged to carry in a state of facts detailing the cir- 
 cumstances which he desired to prove. 1 This was also the general 
 form by which the prosecution of every reference to a master 
 was commenced. 2 "A state of facts, as its name imports, is a 
 statement in writing, made by a party who wishes to prosecute 
 or resist any inquiry before a master, of the facts and circum- 
 stances upon which he relies, either in support of his own cause, 
 or in contradiction or defeasance of that of his adversary. It 
 is, in effect, the pleading of the party before the master, and is 
 governed by nearly the same rules and principles as pleadings in 
 the Court, although, not being signed, nor, in general, prepared 
 by counsel, they are not always so strictly observed. A state 
 of facts, however, must be pertinent to the matter, and must 
 not, any more than any other proceeding in the cause, contain 
 any scandal, and if it is either scandalous or impertinent, the 
 scandalous or impertinent matter may be expunged, in the man- 
 ner which will be presently pointed out. A state of facts is 
 intituled in the cause, and contains a detail of the facts and 
 circumstances intended to be relied upon by the party : when 
 the party carrying in the state of facts, makes any claim upon the 
 fund in Court, it is usual to conclude the statement with the par- 
 ticulars of the claim, in the manner of a prayer for relief to the 
 bill, as follows: — 'And the said A. B., therefore, claims, &c.,' 
 in such case the proceeding is called ' a state of facts and claims.' 
 When the object of the party is to charge another with the 
 receipt of money, &c, the state of facts concludes with a charge 
 in the following form : — ' and the said A. B., therefore, charges, 
 &c.,' in such case the proceeding is called ' a state of facts and 
 charge.' It may be remarked, that a charge is not always pre- 
 ceded by a state of facts, but if the matter appears from any 
 admissions in any account, or examination or proceeding in the 
 master's office, and requires no other proof in support of it, it is 
 usual to make ' a charge ' only. When a state of facts is pre- 
 
 19 Rule 115 of United States C. C, § 312. i Daniell's Ch. Pr. eh. xxvi. 
 S. D. N. Y. a Darnell's Ch. Pr. ch. xxvi.
 
 460 PROCEEDINGS IN A MASTER'S OFFICE. [CHAP. XXIII. 
 
 pared, it is carried in to the master's office and a warrant ' on 
 leaving' must be served upon the other parties, who may then 
 apply for and obtain copies from the master's clerk, and if they 
 have a counter state of facts to leave, they must proceed in the 
 same manner. It is usual to add to a state of facts, a sort of 
 petition, that the party may be at liberty to add to, alter, or vary 
 the state of facts, as he may be advised ; and it is presumed, that 
 such form was originally considered necessary, to enable the 
 party to amend his state of facts, after it has been delivered in. 
 It is, however, now an unnecessary form, as a state of facts may 
 be amended at any time, or a further state of facts carried in, 
 upon leaving which, a warrant, ' on leaving,' should be taken 
 out and served, as when an original state of facts is left." 3 
 
 § 313. Evidence before a Master. — " All affidavits, depositions, 
 and documents which have been previously made, read, or used 
 in the court upon any proceedings in any cause or matter may 
 be used before the master." 1 These should, however, be regu- 
 larly offered in evidence, so that the other party may have an 
 opportunity to explain or rebut them. 2 Otherwise, they cannot be 
 referred to upon the argument, or used in support of the report. 3 
 The master has power to examine under oath the parties in the 
 cause, and any witnesses produced by them, 4 and any creditor 
 or other person coming in to claim before him. 5 The evidence 
 should be taken down in writing by the master, or some one 
 in his presence, so that the court may use the same. 6 Witnesses 
 who live in the district may, upon due notice to the opposite 
 party, be summoned to appear before a master, by a subpoena 
 issued from the clerk's office in blank and filled by the party 
 applying for the same, or by the master, requiring the attendance 
 of the witnesses at a time and place therein specified. 7 Such 
 witnesses are entitled to the same compensation as for attend- 
 ance in court, 8 A refusal to appear in obedience to such a 
 subpoena is a contempt punishable by the court or a judge thereof 
 by an attachment issued upon the master's certificate. 9 Upon the 
 
 s Daniell's Ch. Pr. ch. xxvi. 4 Rule 77. 
 
 §313. 1 Rule 80. But see Hammacher 6 Rule 81. 
 
 v. Wilson, 32 Fed. R. 796. 6 Rule 81. 
 
 2 Bell v. U. S. Stamping Co., 32 Fed. » Rule 78. 
 R. 549. 8 Rule 78. 
 
 3 Bell v. U. S. Stamping Co., 32 Fed. R. 9 Rule 77. 
 549.
 
 § 314] masters' reports and compensation. 461 
 
 master's certificate a commission issues from the clerk's office to 
 take the depositions of witnesses according to the Acts of Con- 
 gress or equity rules. 10 Under extraordinary circumstances, a 
 master may take testimony beyond the territorial jurisdiction of 
 the court. 11 A master has power to direct the mode in which 
 matters requiring evidence shall be proved before him. 12 The 
 court wili rarely interfere with the master's ruling in this respect 
 until his report is brought before it for review. 13 
 
 § 314. Masters' Reports and Compensation. — - The final decision 
 of a master upon the matters referred to him is embodied in his 
 report to the court. He is forbidden by the rules to recite at 
 length any part of any paper or deposition brought in or used 
 before him. 1 He is, however, required to refer to and identify 
 every state of facts, charge, affidavit, deposition, examination, or 
 answer used before him, so as to inform the court concerning 
 the pleadings and evidence which he considered in reaching the 
 conclusions embodied in his report. 3 It is the better practice 
 for a master before making his report to prepare and serve on 
 the parties a draft of the same, with notice of a time and place 
 when and where he will hear their objections thereto. 3 At the 
 appointed time, counsel should appear, make their objections to 
 the proposed report, and see that these objections are noted in 
 writing and filed with the master. 4 The practice is, however, 
 in some circuits very loose in this respect. 5 A master cannot 
 retain his report as securit}' for his compensation. 6 His compen- 
 sation is fixed by the court in its discretion with regard to the 
 circumstances of each particular case. 7 This compensation is 
 charged upon and borne by such of the parties to the cause as 
 the court shall direct. 8 A master's compensation upon an ac- 
 counting is usually imposed in the first instance upon the 
 accounting party. 9 The order adjusting a master's compensa- 
 tion should name the party who is required to pay it and a time 
 
 10 Rule 77. 4 Fischer v. Hayes, 16 Fed. R. 460 ; 
 
 11 Bate Refrigerating Co. v. Gillette, Story v. Livingston, 13 Pet. 359. 
 
 28 Fed R. 673. 5 Hatch v. Indianapolis & Springfield 
 
 12 Rule 77. R. R. Co., 9 Fed. R. 856. 
 
 13 Lull v. Clark, 20 Fed. R. 454 ; 6 Rule 82. 
 
 Wooster v. Gumhirnner, '20 Fed. R. 167. 7 Rule 82; Erie Ry. Co. v. Heath, 10 
 
 § 314. l Rule 76. Blatchf. 214 ; Middleton v. Rankers' & 
 
 2 Rule 76. See In re Thomas, 35 Fed. Merchants' Tel. Co., 32 Fed. R. 524. 
 337, 339. 8 Rule 82. 
 
 3 Fischer v. Hayes, 16 Federal Re- 9 Urner v. Kavton, 17 Fed. R. 539 ; 
 porter, 469. 8. c 17 Fed. R. 815.
 
 462 PROCEEDINGS IN A MASTER'S OFFICE. [CHAP. XXIil. 
 
 within which such payment is to be made. 10 Failure to comply 
 with the order is punishable by attachment for contempt of 
 court. 11 It seems, however, that payment pending a suit can 
 only be compelled on the application of the master or his repre- 
 sentative, not at the request of a party. 1 ' 2 As soon as the report 
 is ready, the master should file the same in the clerk's office ; and 
 the clerk should enter the day of the return in the order book. 13 
 If no exceptions are filed within one month from the time of 
 filino-, the report is considered as confirmed on the next rule-day 
 after the month has expired. 14 
 
 § 315. Exceptions to Master's Reports. — Exceptions to the re- 
 port of a master must be filed within one month from the day 
 when it was filed. 1 No exception will lie to any matter which 
 was not objected to before the master. 2 In circuits, where it is 
 not the practice for masters to serve drafts of their reports, an 
 exception to the report, but not an exception to a ruling in evi- 
 dence, can be filed without a preliminary objection. 3 Such an 
 exception has also been permitted after a draft of the report had 
 been served, and no objection made thereto. 4 Objections in sup- 
 port of exceptions may be allowed to be filed nunc pro tunc. 5 Ex- 
 ceptions should specifically point out the errors of which they 
 complain, and if they rely on any part of the testimony, should 
 either state the same or refer thereto, so that the court can without 
 difficulty find it. 6 Exceptions to the admission or exclusion of 
 evidence, taken upon the hearing before the master, need not be 
 re-stated in the exceptions filed to his report. 7 If the court is in 
 session when exceptions are filed, they are argued at that ses- 
 sion ; s otherwise, at the next session. 9 Every presumption is in 
 favor of the correctness of the decision of a master. 10 If the tes- 
 io Rule 82. Jennings v. Dolan, 29 Federal Reporter, 
 
 ii Rule 82. 
 
 861. 
 
 " Mallory Manuf. Co. v. Fox, 20 Fed. 3 Hatch v. Indianapolis & Springfield 
 
 R 409 R. R. Co., 9 Fed. R. 856. See Jennings v. 
 
 is Rule 83. Dolan - 29 Fed R ' 86L 
 
 M Ru | e g 3 * Jennings v. Dolan, 29 Fed. R. 861. 
 
 8 315 i Rule 83. But see Central 6 Fischer v. Hayes, 16 Fed. R. 469. 
 Trust Co. v. Wabash, St. L. & P. Ry. 6 Harding v. Handy, 11 Wheat. 103; 
 
 Co Hamilton Intervenor, 27 Fed. 11. Foster v. Goddard, 1 Black, 506 ; Greene v. 
 
 175 ' Bishop, 1 Cliff. 186 ; Stanton v. Alabama 
 
 I* Troy Iron & Nail Factory v. Corn- & C. 11. R. Co., 2 Woods, 506. 
 ing, 6 Blatchf. 328 ; Fischer v. Hayes, 16 7 Marks v. Fox, 18 Fed. R. 713. 
 
 Fed. R. 469; Story v. Livingston, 13 Pet. 8 Rule 83. 
 
 359 But see Hatch v. Indianapolis & 9 Rule 83. 
 
 Springfield R. R. Co., 9 Fed. R. 856; 10 Medsker v. Bonebrake, 108 U. S. 66 ;
 
 § 31C] SALES BY MASTERS. 463 
 
 timony is conflicting, the court will rarely interfere •with the 
 master's decision on the facts, provided he made no errors in 
 law which affected, the result. 11 Trifling errors in a master's 
 statement of an account will be disregarded. 12 Exceptions to a 
 master's report are only proper when he has made an erroneous 
 decision upon the matters referred to him. 13 The remedy for an 
 irregularity in his proceeding, or for his neglect to report upon 
 all of the matters referred, to him, is a motion to set aside the 
 report, or to refer the same back to the master. 11 The party 
 who files exceptions is obliged to pay costs for each exception 
 overruled, and is entitled to costs for each exception allowed. 15 
 The amount of costs is fixed by the court in accordance with 
 a standing rule in each circuit. 16 The review of a master's 
 report upon a receiver's account is described in a preceding 
 section. 17 
 
 § 316. Sales by Masters. — When property is directed to be 
 sold by a master, it must be sold at public auction unless the 
 court otherwise directs. 1 Such a sale is conducted under the 
 superintendence of the solicitor for the party at whose prayer 
 the sale is made, and in all questions which subsequently arise 
 between the buyer and the seller it is said that he is considered 
 as the agent of all the parties to the suit. 2 The particulars and 
 conditions of the sale are prepared by him. They should be 
 entitled in the cause, and should contain a general description 
 of the nature and situation of the property ; and if land, should 
 state in whose possession it is or has lately been. 3 The con- 
 ditions of the sale should be in general similar to those annexed 
 to ordinary sales of similar property in the vicinity. 4 The sale 
 should be advertised at least twice, and should give such a 
 description of the property as clearly to indicate and identify it. 6 
 
 Til gh man v. Proctor, 125 U. S. 136 ; Cal- W Rule 84. 
 
 laghan v. Myers, 128 U. S. 617, 666 ; Kim- ™ Rule 84. 
 
 berly v. Arms, 129 U. S. 512, 524. « § 256. 
 
 11 Welling v. La Bau, 34 Fed. R. 40; § 316. > Daniell's Ch. Pr. ch. xxvi. 
 Mason v. Crosby, 3 W. & M. 258; Gott- - Dnlhy v. Pullen, 1 R. & M. 296. But 
 fried v. Crescent Brewing Co., 22 Fed. R. see Blossom v. Railroad Co., 3 Wall. 196, 
 433 ; Jaffrey v. Brown, 29 Fed. R. 476 ; 207. 
 
 Central Trust Co. v. Texas & St. L. Ry. 3 Daniell's Ch. Pr. ch. xxvi. 
 
 Co., 32 Fed. R. 448. * Daniell's Ch. Pr. ch. xxvi. 
 
 12 Taylor v. Robertson, 27 Fed. R. 537. 5 Kauffman r. Walker, 9 Md. 229 ; 
 18 Taylor v. Robertson, 27 Fed. R. 537. Merwin v. Smith, 1 Green Ch. (N. J.) 
 14 Tyler v. Simmons, 6 Paige Ch. (N.Y.) 182 ; Daniell's Ch. Pr. ch. xxvi. 
 
 127.
 
 464 PROCEEDINGS IN A MASTER'S OFFICE. [CHAP. XXIII. 
 
 The master has power to adjourn the sale, even after the auction 
 has begun and bids have been made. 6 The sale is conducted in 
 substantially the following manner: The master, his clerk, or a 
 person appointed, by him, is present with a paper upon which the 
 biddings for the different lots are to be marked. 7 The lots are 
 successively put up at a price offered by any person present ; 
 such person, according to the English practice, signing his name 
 to the sum which he offers on the paper. 8 If the property to be 
 sold consists of a railroad, and its appurtenances, it is usually 
 sold as a single thing; 9 and in such a case the court may make 
 a condition of the sale that no bid shall be considered unless each 
 bidder first deposit a specified sum in cash, — in one instance, 
 twenty-five thousand dollars, 10 — and that no bid be considered 
 unless it exceed a specified amount. 11 Every subsequent bidder 
 must do like the first until no person will advance on the last bid- 
 der, when the latter is declared the purchaser ; 12 unless there has 
 been a reserved bidding fixed, when if the last bidding does not 
 reach the reserved one, the person conducting the sale declares 
 that the lot has not been sold, but has been bought in by the 
 persons interested in the estate. 13 It seems that the court may 
 direct that the sale be made for cash, in a suit under a railroad 
 mortgage which provides that the purchase-money may be paid 
 in bonds. 14 A bid may be revoked any time before the ham- 
 mer falls. 15 A part}'" to the suit has the right to buy at the 
 sale. 16 The sale does not take effect until confirmed by the 
 court. 17 The confirmation may be upon terms. 18 In one case, 
 the purchaser was required to assume responsibility for obliga- 
 tions of the receiver as a condition of the confirmation of the 
 
 6 Blossom v. Railroad Co., 3 Wall. N. D. Illinois, Gresham & Jackson, JJ., 
 196. 1889. 
 
 7 Daniell's Ch. Pr. ch. xxvi. 12 Daniell's Ch. Pr. eh. xxvi. 
 
 8 Daniell's Ch. Pr. ch. xxvi. 13 Daniell's Ch. Pr ch. xxvi. 
 
 9 Jones on Railroad Securities, §§ 625- " Farmers' L. & Tr. Co. ». G. B. & M. 
 628. R. R- Co., 10 Biss. 203 ; s. c. 6 Fed. R. 100. 
 
 "> Farmers' L. & Tr. Co. v. Green Bay 15 Blossom v. Railroad Co., 3 Wall. 106. 
 
 & Minn. R. R. Co., 10 Biss. 203. See Mayhew v. West Virginia Oil & Oil 
 
 11 Farmers' Loan & Tr. Co.r. Houston & Land Co., 24 Fed. R. 205, 215. 
 
 Texas Central R. R. Co., Pardee & Sabin, >« Smith v. Black, 115 U. S. 308. 
 
 JJ., May, 1888 ; Hervey v. Illinois Midland 17 Mayhew v. West Virginia Oil & Oil 
 
 Ry. Co., U. S. C C, S. D. Illinois, June Land Co., 24 Fed. R. 205, 215. 
 
 10th, 1886; Roosevelt v. Columbus, C. & 18 Farmers' L. & Tr. Co. v. Green Bay 
 
 I. C. Ry. Co., U. S. C. C, N. D. Illinois, & Minn. R. R. Co., 10 Biss. 203 ; s. c. 6 
 
 Drummonrl, J., Nov. 15th, 1882; Jesup v. Fed. R. 100 ; F. L. & Tr. Co. v. Central 
 
 Wabash, St. L. & P. Ry. Co., U. S. C. C, R. R. of Iowa, 17 Fed. R. 758.
 
 § 316.] 
 
 SALES BY MASTERS. 
 
 465 
 
 sale. 19 Should the purchaser fail to pay the money promised, a 
 re-sale will be ordered, provided the rights of third persons have 
 not intervened ; 20 and he may be compelled by attachment to 
 pay the difference between his bid and the amount realized from 
 the second sale. 21 Such a re-sale may be ordered by a summary 
 proceeding upon the return of an order to show cause served 
 upon the purchaser. 22 
 
 1 9 F. L. & Tr. Co. v. Central R. R. of 
 Iowa, 17 Fed. R. 758. 
 2 ° Stuart v. Gay, 127 U. S. 518. 
 
 21 Stuart v. Gay, 127 U. S. 518. 
 
 22 Stuart v. Gay, 127 U. S. 518. 
 
 23 Jaffrey v. Brown, 29 Fed. R. 476, 
 
 30
 
 466 DEGREES. [CHAP. XXIV. 
 
 CHAPTER XXIV. 
 
 DECREES. 
 
 § 317. Definition and Classification of Decrees. — A decree is a 
 sentence or order of a court of equity pronounced after a bear- 
 ing of the points of issue ; and corresponds to a judgment of a 
 court of law. A decree should be distinguished from a decretal 
 order. A decretal order is an order in the nature of a decree, 
 made upon motion or petition, either before or after the hearing, 
 or in an independent proceeding. 1 According to the different 
 standpoints from which they may be regarded, decrees are classi- 
 fied, as final or interlocutory ; as in personam or in rem ; as abso- 
 lute, conditional, decrees wm, or decrees in the nature of decrees 
 nisi. 
 
 § 318. Final and Interlocutory Decrees. — Decrees are either 
 final or interlocutory. These terms are used with different 
 meanings in the English practice, and in that in the courts of the 
 United States. A final decree in the English Chancery was a 
 complete determination of every question arising in a cause. 1 An 
 interlocutory decree was one which reserved the further con- 
 sideration of any question arising in a cause till a future 
 hearing. 2 In strictness, moreover, every decree was said to be 
 interlocutory until it was signed and enrolled. 3 In England, an 
 appeal lay from an interlocutory as well as from a final decree ; 4 
 but, under the Judiciary Act, only final decrees of a Federal 
 court can be brought to a court of appeal for revision. 5 On 
 account of the inconvenience which would have followed, had 
 the old definition been applied to the term used in this statute, 
 the Federal courts have refused to follow the English Chancery 
 in this respect. As far as appeals are concerned, a decree is 
 considered final which decides the right to property, and orders 
 
 § 317. 1 1 Barbour's Chancery Prac- 3 Forum Romanum, 183 ; Seton's De- 
 
 tice, 337. crees (4th ed.), 2. 
 
 § 318. l Seton's Decrees (4th ed.), 2. * Forgay v. Conrad, 6 How. 201, 205. 
 
 2 Seton's Decrees (4th ed.), 2. 6 U. S. R. S. §§ 631, 692.
 
 § 319.] DECEEES IN PERSONAM. 467 
 
 that it be sold or delivered to a party ; or creates a lien upon 
 property ; or directs a specific sum of money to be paid 10 a 
 party either by another person or out of a fund in court, pro- 
 vided that the successful party is entitled to compel its immedi- 
 ate execution, 6 even though the consideration of other matters 
 arising upon the pleadings is reserved " for further considera- 
 tion" in it. 7 So, too, is a decree, which settles all the rights of the 
 parties involved in the pleadings, though it gives leave to either 
 one of them to apply at the foot of the decree " in relation to any 
 matter not finally determined by it." 8 All other decrees which 
 reserve any question for the court's further decision, even 
 though they direct money to be paid into court, 9 or property to 
 be delivered to a receiver, 10 or new trustee appointed by the 
 court ; u or enjoin a party from the performance of an act ; 12 or 
 dissolve an injunction; 13 or punish a party for contempt; 14 or 
 direct a sale, but do not sufficiently specifically determine the 
 property to be sold to warrant an immediate sale ; 15 or direct a 
 sale, but do not appoint the time of sale, 16 — are, it seems, in- 
 terlocutory decrees from which no appeal can under the Judiciary 
 Act be taken ; although, if the decision of the court in making 
 them was erroneous, the final decree may be reversed on that 
 account upon an appeal by a party who was thereby injured. 17 
 
 § 319. Decrees in personam. — Decrees are either in personam 
 or in rem. Decrees in personam are those which contain a com- 
 
 6 Chief Justice Taney in Forgay v. Bank v. Whitney, 121 U. S. 284. But see 
 Conrad, 6 Plow. 201, 204 ; Miehoud o . Wabash & Erie Canal v. Beers, 1 Black, 
 Girod, 4 How. 503 ; Kay v. Law, 3 Cranch, 54. 
 
 179; Whiting v. Bank of the United 10 Forgay v. Conrad, 6 How. 201 ; Beebe 
 
 States, 13 Pet. 6 ; Wabash & E. Canal v. Russell, 19 How. 283; Hentig v. Bage, 
 
 Co. v. Beers, 1 Black, 54 ; Bronson v. 102 U. S. 219. But see Wabash & Erie 
 
 Railroad Co., 2 Black, 524 ; Milwaukie Canal v. Beers, 1 Black, 54. 
 
 & M. PI. R. Co. v. Soutter, 2 Wall. 440 ; " Pulliam v. Christian, 6 How. 209. 
 
 Thomson v. Dean, 7 Wall. 342 ; Railroad 12 Brown v. Swann, 9 Pet. 1 ; McCollum 
 
 Co. v. Bradleys, 7 Wall. 575; Stovall v. v. Eager, 2 How. Gl ; Thomas & Co. v. 
 
 Banks, 10 Wall. 583; French v. Shoe- Wooldridge, 23 Wall. 283. 
 
 maker, 12 Wall. 86; Marin v. Lalley, 17 13 Young v. Grundy, 6 Cranch, 51 ; 
 
 Wall. 14; Trustees v. Greenough, 105 Moses v. Mayor, 15 Wall. 387 ; Verden v. 
 
 U. S 527; Farmers' L. & Tr. Co., Peti- Coleman, 18 How. 86. 
 
 tioner, 129 U. S. 206. n Hayes v. Fischer, 102 U. S. 121. 
 
 7 St. Louis, I. M. & S. R. R. Co. v. ™ Railroad Co. v. Swascy, 23 Wall. 
 Southern Express Co., 108 U. S. 24 ; Mo. 405. 
 
 K. & T. R. R. Co. v. Dinsmore, 108 U. S. 1U Parsons v. Robinson, 122 U. S. 112 ; 
 
 30. Burlington, C. R. & N. Ry. Co. v. Sim- 
 
 8 French v. Shoemaker, 12 Wall. S6. mons, 123 U. S. 52. 
 
 9 Forgay v, Conrad, (! How. 201 ; n Buckingham v. McLean, IS How. 
 Beebe v. Russell, 19 How. 283; Louisiana 150.
 
 468 
 
 DECREES. 
 
 [CHAP. XXIV. 
 
 mand to one of the parties to a suit in equity. Decrees in rem 
 are such as without containing command to either of the parties 
 transfer the title to property. Decrees in personam may direct the 
 performance of, or the abstention from an act or acts. The or- 
 dinary decree of a court of equity is a decree in personam. Such 
 a decree may be made even though it directs the performance 
 of or abstention from an act, or directs a transfer, or otherwise 
 affects the title to property beyond the jurisdiction of the court. 1 
 But a statute provides that " the original jurisdiction of the 
 circuit court for the Southern District of New York shall not 
 be construed to extend to causes of action arising within the 
 Northern District of said State." 2 So, where in order to obtain 
 the relief sought it would be necessary for the court to take pos- 
 session by its officers of land beyond its territorial jurisdiction, it 
 has been said that such a decree should not be granted. 3 Thus, 
 it seems that the court will not decree a partition of land beyond 
 the jurisdiction, since no commission appointed by it could have 
 authority to act there ; 4 but it will decree specific performance 
 of a contract, or the foreclosure of a mortgage affecting land 
 no matter where it may be situated. 5 It has been held in Eng- 
 land that the court will make no decree in a suit between two 
 foreigners not residents of the country concerning a contract 
 made or land situated elsewhere. 6 And a Georgian case holds 
 that a court of equity will not compel a corporation to perform 
 a contract to open ditches and keep fences in repair in a State 
 where it has no corporate existence. 7 It often happens, however, 
 that the court can do a thing itself more easily and effectively 
 than it can compel it to be done by the party concerned, as, for 
 
 § 319. J Arglasse v. Muschamp, 1 Vern. 
 75 ; Carron Iron Co. v. Maclaren, 5 H. L. C. 
 416; Muller v. Dows, 94 U. S. 444; Wheeler 
 v. McCormick, 4 Fisher's Pat. Cas. 433 ; 
 6. c. 8 Blatchf. 267. For an excellent 
 review of the authorities, see the learned 
 opinion of Judge, subsequently Chief 
 Judge, Davies, in Gardner v. Ogden, 22 
 N. Y. 327. 
 
 2 U. S. R. S. § 657 ; Hodge v. Hudson 
 River Railroad Co., 3 Fisher's Pat. Cas. 
 410 ; s. c. 6 Blatchf. 85 ; Locomotive E. 
 S. T. Co. v. Erie Railway Co., 10 Blatchf. 
 292 ; Black v. Thorne, 10 Blatchf. 66. 
 
 3 Muller v. Dows, 94 U. S. 444, 449; 
 Macgregor v. Macgregor, 9 Iowa, 65; 
 
 Glen v. Gibson, 9 Barb. (N. Y.) 634; 
 Story's Eq. Jur. § 1292 ; 2 Spence, 8, 
 n (d) ; Smith's Eq. 30; Bispham's Eq. 
 §47. 
 
 4 2 Spence, 8, n (d) ; Story's Eq. Jur. 
 § 1292 ; Smith's Eq. 30 ; Bispham's Eq. 
 § 47. 
 
 5 Penn v. Lord Baltimore, 1 Ves. Sen. 
 444; Massie v. Watts, 6 Cranch, 148; 
 Muller v. Dows, 94 U. S. 444 ; McElrath 
 v. The Pittsburg & Steubenville R. R. Co., 
 5 Pa. St. 189. 
 
 6 Matthaei v. Galitzin, L R. 18 Eq. 
 340 ; Blake v. Blake, 18 W. R. 944. 
 
 ^ Port Royal R. R. Co. v. Hammond, 58 
 Ga. 523.
 
 § 321.] ABSOLUTE AND CONDITIONAL DECREES. 469 
 
 example, wnen it wishes to sell property or to cancel an instru- 
 ment in writing, and it then will perform that duty by means of 
 a master or receiver. 8 When all the defendants are within the 
 jurisdiction, such a decree is usually accompanied by a command 
 to them to confirm the sale or other action of the court, or to 
 assist in the transaction directed by the decree. When, however, 
 a defendant is beyond the jurisdiction, the court sometimes acts 
 by a decree in rem. 
 
 § 320. Decrees in rem. — A decree in rem is one that determines 
 the title to or an interest in real or personal property within the 
 territorial jurisdiction of the court, without having any other 
 effect upon a defendant who dwells beyond that jurisdiction and 
 has not been served with process within it. Such an equitable 
 decree must be distinguished from the decrees in rem of a court 
 of admiralty, which establish a title conclusively against all 
 the world ; whereas it is only binding upon the parties to the 
 action in which it is rendered. Such decrees were formerly very 
 rare, 1 and are in the Federal courts purely statutory, and the 
 power of these courts to make them depends entirely upon a strict 
 compliance with the provisions of the statute allowing them. 2 
 Whether or not, under this statute or otherwise, a decree can be 
 made and enforced which requires the specific performance of a 
 contract for the conveyance of property within the court's juris- 
 diction against a person not served there with process, has never 
 been decided. 3 
 
 § 321. Absolute and Conditional Decrees. — Decrees are either 
 absolute, conditional, nisi, or in the nature of decrees nisi. An 
 absolute decree is one that takes effect immediately upon its 
 entry and is dependent for its enforcement upon no condition, 
 and is not subject to be defeated by the occurrence of any 
 subsequent event. A conditional decree is one that by its 
 terms is not to take effect unless something shall be clone b} r the 
 party to whom relief is given by it. Under the present state of 
 the authorities, it would be rash to attempt to lay down a rule as 
 to when a conditional decree will be granted, and when the 
 plaintiff will be denied relief unless he has made a specific offer 
 
 8 Langdell's Eq. PI. § 44. 8 See Ward v. Arredondo, Hopkins Ch. 
 
 § 320. 1 Rut see Anon., 1 Atk. 18. (N. Y. ) R. 213; Anon., 1 Atk. 18; Rourke 
 
 2 U. S. R. S. § 738 ; Act of March 3, v. McLaughlin, 38 Cal. 196 ; Matteson v. 
 
 1875, ch. 137, § 8 (18 St. at L. 472). Scofield, 27 Wis. 071; Story's Eq. Jur. 
 
 See § 97. § 744, n. 3.
 
 470 DECREES. [CHAP. XXIV. 
 
 or waiver in his bill. 1 The following are a few of the cases when 
 a conditional decree alone has been granted. An express com- 
 pany has been granted a decree compelling a railroad company 
 to carry freight for it, upon condition that it should give the 
 latter a bond to pay such charges as the court should subse- 
 quently consider reasonable. 2 So, a decree for the redemption 
 of a mortgage is upon condition that the plaintiff pay the balance 
 reported due from him within six months, which it seems must be 
 lunar not calendar months, after the report, in default whereof 
 the plaintiff's bill against the defendant is from thenceforth to 
 stand dismissed out of court with costs. 3 Upon default, a final 
 order, which will be granted as of course, is necessary to dismiss 
 the bill. 4 So, too, a decree allowing a junior incumbrancer to 
 redeem may be upon condition that he pay off a prior incum- 
 brance, and repay to its holder money paid by him in discharg- 
 ing still prior incumbrances, and for taxes, repairs, and insurance 
 upon the mortgaged premises. 5 Similarly, a decree upon a bill 
 by a purchaser for the specific performance of an agreement for 
 the sale of an estate may appoint a time and place for the pay- 
 ment of the purchase-money, with interest if any be due, and 
 direct that in default of payment the bill be dismissed with 
 costs. 6 A decree for an accounting should always contain a 
 submission by the plaintiff to account. 7 It has been made a con- 
 dition precedent to the entry of a decree to enjoin the infringe- 
 ment of a patent, that the complainant first file in the Patent 
 Office a disclaimer of those of the claims in the patent to which 
 he is not entitled. 8 For conditions of sales in suits to fore- 
 close railway mortgages see the preceding section upon sales by 
 masters. 9 
 
 § 322. Decrees nisi. — A decree nisi is one giving a defendant 
 a certain specified time within which to show cause against a 
 decree or to perform some other act in relation thereto, in default 
 whereof it shall be absolute against him. Such a decree is 
 made against an infant or a mortgagor, or the latter's assigns. 
 
 § 321 l See Moore v. Crawford, 130 5 McCormick v. Knox, 105 U. S. 122. 
 
 U. S. 122, 140. 6 I.owther v. Andover, 1 Bro. C. C. 
 
 2 Southern Express Co. v. St. Louis, 396. 
 
 I. M. & S. R. R. Co., 10 Fed. R. 210 ; re- 7 Fowler v. Wyatt, 24 Beav. 232 ; Se- 
 
 versed Express Cases, 117 U. S. 1. ton on Decrees (4th ed ), 775. 
 
 3 Seton on Decrees, 140; Waller v. 8 Sessions v. Romadka, 21 Fed. R. 124, 
 Harris, 7 Paige (N. Y.), 167. 133; Hake v. Brown, 37 Fed. R. 783. 
 
 * Seton on Decrees, 178. 9 § 316.
 
 § 322.] DECREES NISI. 471 
 
 According to the English rule, all decrees against an infant 
 defendant which require some act to be performed by him, 1 or 
 directed a conveyance or a foreclosure of his interest in any real 
 estate, must contain a clause giving him an opportunity to show 
 cause against it after he has come of age. 2 When a sale of land 
 is directed by such a decree, it usually contains a direction that, 
 in the mean time, a purchaser under the sale shall hold and 
 enjoy the estate against the infant until he attains full age ; 3 and 
 the court so far protects a purchaser that it will not permit his 
 title to be affected by a mere irregularity in the decree. 4 When 
 a decree directs a conveyance by both adult and infant par- 
 ties, as in a partition suit, it seems that it should not direct a 
 conveyance by any till the infant is of age and has had an oppor- 
 tunity to show cause against the decree, and in the meantime 
 should only extend so far as to give possession in accordance 
 with the court's decision and order enjoyment accordingly till 
 effectual conveyances can be made. 5 It seems that in no other 
 instances will a decree nisi be entered against an infant defend- 
 ant, although there is some doubt upon this point. 6 In a few 
 exceptional cases, when an infant plaintiff in his bill exercised an 
 election between two conflicting claims, the court has allowed 
 him a day after he became of age in which to show cause against 
 it. 7 The usual form of the nisi clause in such a decree is as fol- 
 lows: "And this decree is to be binding on the defendant, the 
 infant, unless on being served, after he shall have attained the 
 age of twenty-one years, with subpoena to show cause against 
 this decree, he shall within six months from the service of such 
 subpoena show unto this Court good cause to the contrary." 8 
 Such a clause should be inserted in the order for making a decree 
 
 § 322. i Walsh v. Trevannion, 16 Simons, 5 Agar v. Fairfax, 17 Ves. 533, 554 ; 
 
 178; Eyre v. The Countess of Shafts- Attorney-General v. Hamilton, 1 Madd. 
 
 bury, 2 P. Wms. 102 ; Sheffield v. The 214. 
 
 Duchess of Buckingham, 1 West, 682; 6 Seton on Decrees (4th ed.), 714 ; Eyre 
 
 Thoroton v. Blackhorne, 2 W. Kclynge, 7 ; v. The Countess of Shaftsbury, 2 P. 
 
 Seton on Decrees (4th ed.), 712,713. Wms. 102; Sheffield p. The Duchess of 
 
 2 Williamson v. Gordon, 10 Ves. 114; Buckingham, 1 West, 682. 
 Mallack v. Galton, 3 P. Wms. 352; New- 7 Gregory v. Molcsworth, 3 Atk. 626; 
 
 bury v. Marten, 15 Jur. 166; Mills v. Sir John Napier v. Lady Effingham, 2 
 
 Dennis, 3 J. Ch. (N. Y.) 367 ; Seton on P. Wms. 401 ; Lord Brook v. Lord Hert- 
 
 Decrees (4th ed.), 714. But seeCroxonu. ford, 2 P. Wms. 518; Taylor v. Philips, 
 
 Lever, 12 W. R. 237. 2 Ves. Sen. 23. 
 
 8 Powell v. P.nvcll, Mad. & Geld. 53. 8 Seton on Decrees, (4th ed.), 711. 
 
 * Bennet v. Hamill, 2 Sch. & Lef. 566.
 
 472 DECREES. [CHAP. XXIV. 
 
 of foreclosure absolute as well as in the decree. 9 The omission 
 of a similar clause in such a decree is error. 10 The six months 
 after the service of process within which cause must be shown 
 must be, it seems, lunar not calendar months. 11 At the expiration 
 of them and upon proof of the requisite facts, an order making 
 the original decree absolute should be entered. 12 A decree for a 
 foreclosure should also be nisi, providing for either a strict fore- 
 closure or a foreclosure sale, unless the whole amount due shall 
 be paid within a reasonable time, usually six lunar months, from 
 the time of the conclusion of the accounting and the certificate 
 of what is due under the mortgage. 13 An omission of such a 
 clause is error. 14 At the expiration of the allotted time, if the 
 debt be still unpaid, the plaintiff should obtain an order confirm- 
 ing the foreclosure or directing the sale. 15 The time for payment 
 may always be enlarged, even after a peremptory order for a 
 sale, 16 upon terms, which usually are that the defendant give 
 good security to pay the amount due, with interest and costs in 
 full. 17 It has also been held that a decree of foreclosure absolute 
 may also be reopened ; 18 but it has been said that this can only 
 be done when it has been obtained by fraud or under circum- 
 stances of oppression. 19 The Supreme Court has held that " what 
 is indispensable to such a decree is, that there should be declared 
 the fact, nature, and extent of the default which constituted the 
 breach of the condition of the mortgage, and which justified tho 
 complainant in filing his bill to foreclose it, and the amount due 
 on account thereof, which, with any further sums subsequently 
 accruing, and having become due, according to the terms of the 
 security, the mortgagor is required to pay within a reasonable 
 time, to be fixed by the court, and which if not paid, a sale of 
 
 9 Williamson v. Gordon, 19 Ves. 114. Whiting v. Bank of United States, 13 
 
 io Coffin v. Heath, 6 Met. (Mass.) 76. Pet. 6. 
 
 " Seton on Decrees (4th ed.), 711. 16 Edwards v. Cunliffe, 1 Madd. 287; 
 
 i 2 Seton on Decrees (4th ed.), 711. Seton on Decrees (4th ed.), 1088. 
 
 13 Clark v. Keyburn, 8 Wall. 318; 1V Monkhouse v. Corporation of Bed- 
 
 nowell v. Western R. R. Co., 94 U. S. ford, 17 Ves. 380 ; Geldard v. Hornby, 
 
 463 ; Chicago & V. R. R. Co. v. Fosdick, 1 Hare, 251 ; Holford v. Yate, 1 K. & J. 
 
 106 U. S. 47 ; Perine v. Dunn. 4 J. Ch. 677 ; Coombe v. Stewart, 13 Beav. 11 
 
 (N. Y.) 140. 18 Campbell v. Holyland, L. R. 7 
 
 i* Clark v. Reyburn, 8 Wall. 318. Ch. D. 166 ; Seton on Decrees (4th ed.), 
 
 15 Seton on Decrees (4th ed.), 1091 ; 1088. 
 
 Chicago & V. R. R. Co. v. Fosdick, 106 19 Patch v. Ward, L R. 3 Ch. 203, 212 ; 
 
 U. S. 47, 71 ; Sheriff v. Sparks, West, 130 ; Seton on Decrees (4th ed ), 1098. 
 Senhouse v. Earl, 2 Ves. Sen. 450; 

 
 § 324.] TIME OF ENTRY OF DECREE. 473 
 
 the mortgaged premises is directed. " w " In suits in equity for 
 the foreclosure of mortgages in the circuit courts of the United 
 States, or in any court of the Territories having jurisdiction of 
 the same, a decree may be rendered for any balance that may be 
 found due to the complainant over and above the proceeds of the 
 sale or sales, and execution may issue for the collection of the 
 same, as is provided in the eighth rule of the Supreme Court 
 regulating the equity practice, when the decree is solely for the 
 payment of money." 21 A State statute giving mortgagors a right 
 of redemption within a certain time after a mortgage sale, will in 
 all cases be followed by the Federal courts, since it establishes 
 a rule of property. 22 In the absence of such a statute there is 
 no right of redemption after the sale under a decree of foreclos- 
 ure has been confirmed. 23 
 
 § 323. Decrees in the nature of Decrees nisi. — Decrees in the 
 nature of decrees nisi are decrees taking a bill against a defend- 
 ant as confessed, and decrees under the statute affecting property 
 within, and against a defendant without the jurisdiction of the 
 court. Decrees taking bills as confessed are described in Chap- 
 ter VII. The cases when a decree against a defendant not 
 served with process can be entered under the Act of March 3d, 
 1875, have been already described. 1 Any defendant or defend- 
 ants to such a statutory decree " not actually personally notified " 
 of the suit, in accordance with the provisions of the statute, may, 
 at any time within one year after final decree, enter his appear- 
 ance in said suit, and thereupon the court must make an order 
 setting aside the decree therein, and permitting such defendant 
 to plead on payment of such costs as the court shall deem just ; 
 and thereupon the suit is proceeded with to final judgment accord- 
 ing to law. 2 
 
 § 324. Time of Entry of Decree. — A decree can regularly be 
 entered only during a term of the court. 1 The court has power 
 to allow a decree to be entered even in vacation as of a previous 
 
 20 Chicago & Vincennes Railroad Com- Conn. Mutual Life Ins. Co. t\ Cushman, 
 pany v. Fosdick, 106 U. S. 47, 70, per 108 U. S. 61. 
 
 Matthews, J. ^ Parker v. Dacres, 130 U. S.*43. 
 
 21 Rule 92. § 323. » See § 97. 
 
 22 Brine v. Insurance Co., 96 U. S. 627 ; 2 U. S. R. S. § 738 ; Act of March 3, 
 Orvis v. T/owell, 98 U. S. 176 ; Hammock 1875, ch. 137, § 8 (18 St. at L. 472), 1st 
 v. Loan & Trust Co., 105 U. S. 77 ; Mason Supp. U. S. R. S. 176. 
 
 v. Northwestern Ins. Co., 106 U. S. 163 ; § 324. J Griswold r. Hill, 1 Paine, 483.
 
 474 DECREES. [CHAP. XXIV. 
 
 term, nunc pro tunc. 2 Such leave will always be granted when 
 the delay was caused by the action of the court. 3 
 
 § 325. Frame of Decree. — Decrees originally always consisted 
 of three, and sometimes of four, parts. These were : the date 
 and title ; the recitals ; the declaratory part, if that were re- 
 quired ; and the ordering part. 1 A decree usually begins with 
 a recital of the day of the month and year when it was pro- 
 nounced, 2 and of the title of the cause, in which the parties 
 should have the same designations that were given them in the 
 bill. 3 Next always followed, formerly, a recital of the pleadings, 
 evidence, and former proceedings in the cause. 4 The equity 
 rules, however, provide that "In drawing up decrees and orders, 
 neither the bill nor answer, nor other pleadings, nor any part 
 thereof, nor the report of any master, nor any other prior pro- 
 ceeding, shall be recited or stated in the decree or order ; but 
 the decree and order shall begin, in substance, as follows : 
 ' This cause came on to be heard (or to be further heard, as 
 the case may be) at this term, and was argued by counsel ; and 
 thereupon, upon consideration thereof, it was ordered, adjudged, 
 and decreed as follows, viz.' " 6 When a decree is entered by 
 consent, the fact that consent was given should be stated. The 
 proper place for such a statement is, ordinarily, in the recitals, 
 unless consent be only given to certain directions, when the state- 
 ment of the consent should immediately precede such directions. 6 
 It has been said also that it should appear affirmatively upon the 
 face of the decree, that the defendant was properly served with 
 process. 7 The declaratory part of a decree, which if desired at all 
 should be next inserted, contains a declaration of matters of fact, 
 or of the rights of one or more of the parties to the cause, or a 
 statement of the reason for the decree or any part thereof. This 
 statement of reasons is not usual, 8 although its utility has been 
 noticed, 9 and it is sometimes adopted. 10 Instances of declara- 
 
 2 Gray v. Brignardello, 1 Wall. 027 ; 6 Seton on Decrees (4th ed.) 1535; 
 Griswold v. Hill, 1 Paine, 483. Bartlett v. Wood, 9 W. R. 817. 
 
 3 Gray v. Brignardello, 1 Wall. 627. 7 Allen v. Blunt, 1 Blatchf. C. C. 480. 
 § 325. 1 Darnell's Ch. Pr. ch. xxv. 8 Ex parte Earl of Ilchester, 7 Ves. 
 
 2 Whitney i\ Belden, 4 Paige (N. Y.), 348, 373; Seton on Decrees (4th ed.), 
 140; Barclay v. Brown, 7 Paige (N. Y.), 19. 
 
 245. 9 Bax v. Whithread, 16 Ves. 15, 24; 
 
 3 Daniell's Ch. Pr. ch. xxv. Gordon v. Gordon. 3 Swanst. 400, 478. 
 
 4 Seton on Decrees (4th ed.), 9-19. 10 Gordon v Gordon, 3 Swanst. 400, 
 6 Rule 86. . 478 ; Jenour v. Jenour, 10 Ves. 573 ; At- 

 
 § 325.] FRAME OF DECREE. 475 
 
 tions of matters of fact are, the existence and validity of a will or 
 other instrument, 11 and the validity of a patent. 12 iSo, whenever 
 there are interfering patents, and a suit is brought by any person 
 interested in any one of them, or in the working of any one of 
 them, to obtain relief against the interfering patentee, the court, 
 on notice to adverse parties, and other due proceedings had ac- 
 cording to the course of equity, may adjudge and declare either 
 of the patents void in whole or in part, or inoperative, or invalid 
 in any particular part of the United States, according to the 
 interest of the parties in the patent or the invention patented. 
 But no such judgment or adjudication can affect the right of 
 any person, except the parties to the suit and those deriving 
 title under them subsequent to the rendition of such decree. 13 
 And where a party establishes his right to property the direc- 
 tion to transfer it to him is often preceded by a declaration of 
 his title. 14 The court will not thus decide rights as between co- 
 defendants unless a cross-bill have been filed for that purpose, 15 
 or it be necessary in order to determine the rights of the plain- 
 tiff, or possibly when the evidence is clear and the case between 
 them ripe for decision ; 16 and language in a decree broad enough 
 to determine such rights will usually be construed as merely de- 
 termining rights as between the plaintiff and the defendants, if 
 no controversy between the defendants appear upon the plead- 
 ings. 17 The court will not make a declaration of mere future 
 rights, 18 nor as to the rights of parties upon a contingency that 
 has not happened, 19 nor, it was formerly held, as to mere legal 
 rights ; 20 unless such a determination is indispensable to the 
 declaration of the present equities of the parties. It seems, that 
 the court will not make a declaration of the rights of the parties 
 
 torney-General v. Clapham, 4 De G. M. & 16 Jolly ». Arbuthnot, 4 De G. & J. 224, 
 
 G. 591, 607; Austin v. Austin, 11 Jur. 245; Gresley v. Mousley, 4 De G. & J. 78, 
 
 N. 8. 530. 99 ; Cottingham v. Earl of Shrewsbury, 
 
 11 Seton on Decrees (4th ed.), 19, 20. 3 Hare, 627; Seton on Decrees (4th ed.), 
 
 12 Union Sugar Refinery v. Mathiesson, 20. 
 
 3 Cliff. 146. " Graham v. Railroad Co., 3 "Wall. 704. 
 
 « U. S. R. S. § 4918. See Foster v. ™ Cross v. De Valle, 1 Wall. 5 ; Lady 
 
 Lindsay, 3 Dill. 120; Pentlarge v. Pent- Langdale v. Bricks, 4 W. R. 703; Fletcher 
 
 large, 19 Fed. R. 817; s. c 22 Fed. R. 412. r. Bealey, 33 W. II. 745; Seton on De- 
 
 11 Jenour 0. Jenour, 10 Ves. 562; Se- crees (4th ed ), 20. 
 
 ton on Decrees (4th ed.), 20. 19 Dowling v. Dowling, L. R. 1 Ch. 612 ; 
 
 16 Thomas v. Lloyd, 25 Beav. 020; Seton on Decrees (4th ed.), 20 
 
 Graham v. Railroad Co., 3 Wall. 704, • Birkenhead Docks v. Laird. 4 De G. 
 
 Seton on Decrees (4th ed.), 20. See M. & G. 732 ; Webb v. Byng, 8 De G. M. & 
 
 §§ 170, 171. G. 033; Seton on Decrees (4th ed.), 20.
 
 476 DECREES. [CHAP. XXIV. 
 
 in a decree taken pro confesso or upon a defendant's default at 
 the hearing.' 21 The conclusion of a decree is its ordering or 
 mandatory part, which contains the specific directions of the 
 court upon the matter before it. 22 As these directions vary 
 according to the nature of the case before the court, it would 
 be impossible to lay down any definite rule concerning them. 
 Nothing is more elastic and less arbitrary than this part of a 
 decree in equity. The directions to the different parties may be 
 separate, reciprocal, direct or inverted, as long as they are not 
 inconsistent. 23 If there be several plaintiffs suing jointly, the 
 decree may be joint or several, in conformity with their respec- 
 tive rights, as finally determined ; and if a number of defendants, 
 a single direction may be given to all, or a separate direction 
 or even a separate decree against each. 24 Certain general rules 
 governing particular kinds of decrees may, however, be stated. 
 If the decree be for the performance of any specific act except 
 the payment of money, as, for example, for the execution of a 
 conveyance of land or the delivering up of deeds or other doc- 
 uments, the decree must prescribe the time within which the act 
 must be done. 25 Decrees for an account should always specify 
 the time from which the account is to be taken. 26 " Every 
 decree for an account of the personal estate of a testator or 
 intestate shall contain a direction to the master to whom it is 
 referred to take the same, to inquire and state to the court what 
 parts, if any, of such personal estate are outstanding or undisposed 
 of, unless the court shall otherwise direct." 27 The old form of a 
 decree to set aside a forged instrument was that the document 
 " be cut, damned and cancelled." 28 In suits in equity for the 
 foreclosure of mortgages, a decree may be rendered for any bal- 
 ance that may be found due to the complainant over and above 
 the proceeds of the sale or sales, and execution may issue for the 
 collection of the same as is provided in the eighth equity rule. 29 
 
 21 Jennings v. Simpson, 1 Keen, 404. Munford, (Va.) 821; Elliott v. Pell, 1 
 
 2 - Daniell's Chancery Practice, chap. Paige (N. Y.), 263. 
 xxv. K Rule 8 - 
 
 23 Lingan r. Henderson, 1 Bland (Md.), 2 s Cummins v. Adams, 2 Irish Eq. 393. 
 236, 275 ; Hodges v. Mullikin, 1 Bland 27 R u i e 73. 
 
 (Md.), 503, 507 1 Owings' Case, 1 Bland 28 Bishop of Winchester v. Fournier, 
 
 (Md.), 370, 404. 2Ves. Sen. 445; Fitton v. Earl of Maccles- 
 
 24 Lin ff an v. Henderson, 1 Bland (Md.), field, 1 Vern. 287, 292 ; Seton on Decrees 
 236, 256; Hodges v. Mullikin. 1 Bland (4th ed.), 1346. 
 
 (Md.), 503, 507; Quarles v. Quarles, 2 2 » R u i e 92.
 
 § 327.] WHO ARE GIVEN COSTS. 477 
 
 CHAPTER XXV. 
 
 COSTS AT LAW AND IN EQUITY. 
 
 § 326. Definition of Costs and Distinction between Costs at Law 
 and in Equity. — Costs is the term given to the sum of money 
 which is paid to the successful party to a litigation, to reimburse 
 him for his expense and trouble in the same. The costs of an 
 action at law are governed by fixed and arbitrary rules. 1 In 
 equity, the award or denial of costs is always in the discretion 
 of the court; 2 and so very frequently is their amount when 
 awarded. 3 When, however, it is said, as it often is, that the 
 award of costs in equity is purely discretionary, it should not 
 be supposed that courts of equity are governed by no fixed 
 principles in their decisions relative to the costs of proceedings 
 before them. All that is meant by the expression, is that, in 
 awarding costs, they will take into consideration the circum- 
 stances of the cases before them and the situation or conduct of 
 the parties, and exercise with reference to these points a dis- 
 cretion governed by certain reasonably definite rules, the en- 
 forcement of which is not dependent upon the caprice of the 
 judge by whom each cause happens to be heard, but is often a 
 ground of review by an appellate tribunal. 4 
 
 § 327. Who are given Costs. — Courts of common law inva- 
 riably award costs to the successful party, except in the cases 
 hereafter stated. 1 Courts of chancery in general follow the rule 
 of the civil law, victus victori in expensis condemnatus est ; and 
 decree the payment of costs by the unsuccessful to the successful 
 parties to a suit before it. 2 It often happens, however, that they 
 
 § 326. l Hathaway v. Roach, 2 W. & § 327. » Hathaway v. Roach, 2 W. & 
 
 M. 63. M. 63. 
 
 2 Riddle v. Mandeville, 6 Cranch, 86. 2 Wooster v. Handy, 23 Fed. R. 49; 
 
 8 Trustees v. Greenough, 105 U. S. Am. Diamond Rock Co. v. Sheldon, 
 
 527; Central Railroad v. Pettus, 113 U.S. 28 Fed. R. 217; Vancouver v. Bliss, 11 
 
 116. Ves. 458; Staines v. Morris, 1V.&B.8; 
 
 * Brooks u.Byam, 2 Story, 553; Trus- Millington v. Fox, 3 M. & C. 338,358; 
 
 tees v. Greenough, 105 U. S. 527 ; Central Hunter v. Town of Marlboro', 2 W. & M. 
 
 R. R. v. Pettus, 113 U. S. 116. 168; Hovey v. Stevens, 3 W. & M. 17.
 
 478 COSTS AT LAW AND IN EQUITY. [CHAP. XXV. 
 
 depart so far from this rule as to deny costs to the successful 
 party, and, in certain classes of cases, they will even compel him 
 to pay costs to those against whom he obtains a decree. 3 In 
 some cases the costs may be apportioned. 4 Under no circum- 
 stances, however, will a court dismiss the plaintiff's bill and 
 award him costs against a defendant. 5 If a plaintiff begins or 
 continues a suit after he has had a full and unconditional offer of 
 all that he is entitled to, he may be denied costs, not only of all 
 the proceedings taken by him after such an offer, 6 but also of the 
 whole suit. 7 This principle applies to bills for an accounting ; 
 when, although on account of the uncertain state of the account 
 the defendant may not be able to, and so does not, make a tender 
 of the balance due from him, yet if he has shown a willingness 
 to account, the court may relieve him from paying costs. 8 If a 
 plaintiff charge fraud which, though he establishes his case on 
 other grounds, he fails to prove ; 9 or, in some cases, if he claims 
 relief more extensive than that to which he is entitled; 10 or if, 
 on account of public policy or otherwise, he is allowed to obtain 
 relief in a matter wherein he himself acted unlawfully or dis- 
 honorably ; n or if he have been guilty of laches, 12 which do not 
 bar his claim entirely, — he will be denied costs. A defendant 
 will also be denied costs when successful under similar circum- 
 stances; 13 for instance, when the plaintiff's bill is clearly bad 
 and he answers instead of demurring. 14 The English rule seems 
 to be that it is beneath the dignity of a sovereign to demand 
 costs, and that, therefore, when he is successful in a suit, his 
 counsel will waive all claim for any. 15 Instances when costs 
 have not been given to a successful party, because the situation 
 
 3 Grattan v. Appleton, 3 Story, 755; 9 Wright v. Howard, 1 Sim. & S. 190; 
 
 Brooks v. Bvam, 2 Story, 553. Scott v. Dunbar, 1 Molloy, 442. See 
 
 * Farwell v. Kerr, 28 Fed. R. 345 ; Lip- Fisher v. Boody, 1 Curtis, 206, 223. 
 
 pincott v. Shaw Carriage Co., 34 Fed. R. 10 Baldwin i;. Ely, 9 How. 580. 
 
 570. u Debenham v. Ox, 1 Ves. Sen. 276 ; 
 
 6 Barns v. Omally, 4 McLean, 576. Davis v Symonds, 1 Cox Eq. 402. 
 
 6 Millington v. Fox, 3 M. & C. 338, 12 Anon., 2 Atk. 14 ; Lee v. Brown, 4 
 352 ; Loveridge v. Lamed, 7 Fed. R. 294 ; Ves. 362. 
 
 Calkins v. Bertrand, 8 Fed. R. 755. 13 Attorney-General v. Brewers' Co., 
 
 7 MUHno-ton v. Fox, 3 M. & C. 338, 1 P. Wms. 376 ; Bunker v. Stevens, 26 
 352. Fed. R. 245. 
 
 8 Parrot v. Treby, Prec. in Ch. 254 ; ™ Brooks v. Byam, 2 Story, 553 ; Har- 
 Bennett v. Attkins, 1 Y. & C. 247 ; Ash- land v. Bankers' & M. Tel. Co., 32 Fed. R. 
 burnham v. Thompson, 13 Ves. 402. But 305. 
 
 see Daniell's Ch. Pr. (5th Am. ed.) 1896, 13 Emperor of Austria v. Day, 2 Giff. 
 !39 7 628; s. c. 3 De G. F. & J. 217.
 
 § 327.] WHO ARE GIVEN COSTS. 479 
 
 of his adversary appealed to the sympathy of the court, were 
 when the decision of the case involved the decision of a difficult 
 and doubtful question of law, 16 especially in suits brought for 
 the specific performance of a contract affecting the sale of 
 land; 17 when the court enforced a contract made upon a very 
 inadequate consideration; 18 and in other cases of peculiar hard- 
 ship. 19 A change of the law by a ruling of the Supreme Court 
 subsequent to the filing of the bill has been held no ground for 
 refusing the defendant costs. 20 
 
 The Revised Statutes provide that when in a Circuit Court 
 a plaintiff in an action at law originally brought there, or a peti- 
 tioner in equity other than the United States, recovers less than 
 the sum or value of five hundred dollars, exclusive of costs, in 
 a case which cannot be brought there unless the amount in dis- 
 pute exclusive of costs exceeds said sum or value, he shall not 
 be allowed costs, and the court may in its discretion award costs 
 against him. 21 This statute does not apply to a suit removed 
 from a State court. 22 If the amount recovered is less than two 
 thousand, but more than five hundred dollars, the section does not 
 apply, although the jurisdictional amount is now the former sum. 23 
 
 In suits to adjust claims against the United States, costs can- 
 not be allowed unless the government puts in issue the right of 
 the plaintiff to recover; and then only in the discretion of the 
 court. 24 Costs in such a suit include only " what is actually 
 incurred for witnesses and summoning the same, and fees paid 
 to the clerk of the court." 25 
 
 When upon a reference the master reports in favor of the 
 plaintiff for nominal damages, the award of costs is in the dis- 
 cretion of the court, and depends upon the peculiar circumstances 
 of each case. 26 
 
 The successful party to a suit may also be obliged to pay costs to 
 an opponent who has not acted unconscientiously in three classes 
 
 18 Grattan v. Applcton, 3 Story, 755 ; 21 U. S. R. S. § 968. 
 
 Rose v. Calland, 5 Ves. 186. '•" Field v. Schell, 4 Blatchf. 435; Ellis 
 
 17 Rose v. Calland, 5 Ves. 186 ; White v. Jarvis, 3 Mason, 457 ; Kreager v. Judd, 
 
 t;. Foljambe, 11 Ves. 337 ; Willcox v. Bel- 6 Fed. R. 27. 
 
 laers, T. & R. 491. 23 Eastman v. Sherry, 37 Fed. R 844. 
 
 is Burrowes v. Lock, 10 Ves. 470. 2* 24 St. at L. eh. 359, p. 508, § L5. 
 
 19 Lillia v. Airey, 1 Ves. Jr. 277 ; Shales 25 24 St. at L. ch. 359, p. 508, § 15. 
 
 v. Barring'on, 1 P. Wins. 481; Drybut- *& Calkins v. Bertrand, 8 Fed. R. 755; 
 
 ter v. Bartholomew, 2 I\ Wms. 127. Everest v. Buffalo Lubricating Oil Co., 
 
 25 Fargo v. South Eastern Ry. Co., 28 31 Fed. R. 742 ; Hill v. Smith, 32 Fed. R. 
 
 Fed. R. 906. 753.
 
 480 COSTS AT LAW AND IN EQUITY. [CHAP. XXV 
 
 of cases: when the former has acted unconscientiously in the suit 
 or in the matters which gave rise to it ; 27 when a defendant has 
 been necessarily made a party to a suit in which he has no direct 
 personal interest, — for example, an heir-at-law, who is a passive 
 defendant to a suit to prove a will; 28 and when a bill is filed to 
 redeem a pledge or relieve an estate from the burden of a mort- 
 gage or other incumbrance. 29 In cases where the finally success- 
 ful party is obliged without his fault to pay costs to one of the 
 others, if the suit was made necessary by the misconduct of one 
 of the defendants, the latter is obliged to repay the amount of 
 those costs to the first. 30 Thus, the costs paid out of the fund to 
 the plaintiff in a suit of interpleader are usually decreed to be 
 repaid by the unsuccessful defendant. 31 In suits founded upon 
 letters-patent for inventions, when the patentee has claimed in 
 his specification that he was the original inventor of more than 
 he did first invent, he cannot recover costs unless he has filed a 
 proper disclaimer in the Patent Office before the commencement 
 of the suit. 32 When an action at law or suit in equity is dis- 
 missed in the court of first instance for want of jurisdiction over 
 the person of the defendant or over the subject-matter, or for a lack 
 of the requisite difference of citizenship, no costs are allowed. 33 
 When a case removed from a State court is remanded for want 
 of jurisdiction in the Circuit Court, the right to costs is secured 
 by the bond filed with the petition for the removal. 34 No costs 
 are granted in a case in the Circuit Court where the judges are 
 divided. 35 In the Supreme Court, when a judgment or decree is 
 reversed for want of jurisdiction in the court below, costs are 
 imposed upon the party who sought the jurisdiction of the court 
 below, either by original process or by removal, whether he is 
 respondent or appellant. 36 
 
 27 Wright v. Howard, 1 Sim. & S. 190. w Burnham v. Rangeley, 2 W. & M. 
 
 28 Crew v. Jolliff, Prec. in Ch. 93 ; Lux- 417 ; Pentlarge v. Kirby, 20 Fed. It. 898. 
 ton v. Stephens, 3 P. Wms. 373. But see U. S. v. Treadwell, 15 Fed. R. 
 
 29 Taner v. Ivie, 2 Ves. Sen. 466, 468. 532; Cooper v. New Haven Steamboat 
 3» Martinius v. Helmuth,2 V. & B. 412, Co., 18 Fed. R. 588. 
 
 note. See Brodie v. St. Paul, 1 Ves. Jr. 34 See § 3 of Judiciary Act of 1875, as 
 
 326 ; Badeau v. Rogers, 2 Paige Ch. amended in 1887 ; 24 St. at L. ch. 373. 
 
 (N. Y.) 209. ^ Veazie v. Williams, 3 Story, 611, 
 
 si Martinius v. Helmuth, 2 V. & B. 412, 632. 
 
 note; Badeau v. Rogers, 2 Paige Ch. 38 Mansfield C. &L.M. Ry. Co. v. Swan, 
 
 (N. Y.) 209. HI U.S. 379; Continental Insurance Co. 
 
 32 U. S. R. S. § 4922 ; Proctor v. Brill, v. Rhoads, 119 U. S. 237 ; Peper v. For- 
 
 16 Fed. R. 791. dyce, 119 U. S. 469 ; Everhart v. Hamil-
 
 § 330.] attorney's fees. 481 
 
 § 328. Classification of Costs. — Different principles regulate 
 the amount of costs according as they are decreed to be paid by- 
 one party to another, or out of a fund in court. 1 In the former 
 case costs are said to be taxed as between party and party, in the 
 latter as between solicitor and client. 2 
 
 § 329. Costs as between Party and Party. — Costs as between 
 party and party are regulated by statute. They are the amount 
 of the " bill of fees of the clerk, marshal, and attorney, and the 
 amount paid printers and witnesses, and lawful fees for exempli- 
 fications and copies of papers necessarily obtained for use on 
 trials." » 
 
 § 330. Attorney's Fees. — The Revised Statutes fix the follow- 
 ing sums to be taxed as attorney's fees in a bill of costs between 
 party and party : " On a trial before a jury, in civil or criminal 
 causes, or before referees, or on a final hearing in equity or ad- 
 miralty, a docket fee of twenty dollars, provided that in cases of 
 admiralty and maritime jurisdiction, where the libellant recovers 
 less than fifty dollars, the docket fee of his proctor shall be but 
 ten dollars. In cases at law, when judgment is rendered with- 
 out a jury, ten dollars. In cases at law, when the cause is dis- 
 continued, five dollars. For scire facias and other proceedings 
 on recognizances, five dollars. For each deposition taken and 
 admitted in evidence in a cause, two dollars and fifty cents. For 
 services rendered in cases removed from a District to a Circuit 
 Court by writ of error or appeal, five dollars." 1 
 
 It has been held that a docket fee can be taxed for each hear- 
 ing before the court after bill, answer, and replication have been 
 filed, 2 but not for a hearing upon a demurrer which is overruled, 
 when the defendant has leave to answer and an answer is filed. 3 
 When a demurrer is sustained, a docket fee is allowed. 4 When 
 a motion to remand is granted, a docket fee is allowed. 5 To con- 
 stitute " a final hearing in equity or admiralty," there must be a 
 
 ton College, 120 U. S. 223; Kin? Bridge § 320. i U. S. R. S. § 083. Rut see 
 
 Co. v. Washington County, 120 U. S. 225; SpauUling v. Tucker, 2 Sawyer, 50. 
 Peninsula Iron Co. v. Stone, 121 US. § 330. 1 U. S. R. S. § 824. Tl.e same, 
 
 631 ; Chapman v. Barney, 128 U. S. 677. ami the three following sections also regu- 
 
 §328. i Trustees v. Greenough. 105 late the fees of district attorneys. 
 U. S. 527; Central R. R. v. Pettus, 113 * American Diamond Hock Boring Co, 
 
 U - s - ll6 - v. Sheldon, 28 Fed. R. 217. 
 
 2 Trustees v. Greenough, 105 U. S. » McLean v. Clark, 23 Fed R 801 
 
 527; Central R. R. v. Pettus, 113 U. S. * Price v. Coleman, 22 Fed. R. 094. 
 
 116, 6 Josslyn v. Phillips, 20 Fed. R 481. 
 
 31
 
 482 COSTS AT LAW AND IN EQUITY. [CHAP. XXV. 
 
 hearing of the cause upon its merits. 6 No docket fee is allowed 
 for a hearing upon an interlocutory application. 7 When a bill is 
 dismissed without a hearing no docket fee is allowed. 8 When a 
 bill is taken as confessed, there must be a hearing before the de- 
 cree, and consequently the complainant is entitled to tax a 
 docket fee. 9 It has been held that no docket fee will be allowed 
 on the dismissal of a bill for want of prosecution ; 10 nor for a 
 reference upon a motion for an interlocutory injunction; 11 nor 
 for a hearing upon a petition for leave to intervene ; 12 nor when 
 the complainant has the bill dismissed upon his own motion before 
 a final hearing. 13 In a case where, after an interlocutory decree 
 requiring the defendant to account, the plaintiff moved for a dis- 
 missal of his bill, he was obliged to pay the defendant a docket 
 fee as well as other costs. 14 It has been said that no docket fee 
 should be allowed when the attorney who appeared and acted 
 for the successful party throughout the case was not admitted to 
 practise in the court where the case was pending, nor admitted 
 to practise in the Supreme Court of the United States before 
 the filing of the general replication. 15 No docket fee is allowed 
 to a party, not an attorney, who conducts his own case. 16 
 
 The fee for taking a deposition is only allowed for a deposition 
 taken de bene esse for use in the final hearing, 17 not for oral testi- 
 mony in court; 18 nor, perhaps, for a deposition taken before a 
 master or examiner ; 19 nor for a deposition taken for use upon 
 
 s Wooster v. Handy, 23 Fed. R. 49; & P. Ry. Co., 32 Fed. R. 684; Mo. Pac. 
 
 Goodyear D. V. Co. v. Osgood, 2 B. & A. Ry. Co. v. Texas & P. Ry. Co., 38 Fed. 
 
 Pat. Cas. 529 ; Coy v. Perkins, 13 Fed. R. R. 775. 
 
 Ill ; Yale Lock Manuf. Co. v. Colvin, 14 13 Coy v. Perkins, 13 Fed. R 111 ; Yale 
 
 Fed. R. 269. Contra, Goodyear v. Sawyer, Lock Manuf. Co. ». Colvin, 14 Fed. R. 
 
 17 Fed. R. 2. 269; Wooster v. Handy, 23 Fed. R. 49; 
 
 7 Doughty v West, B. & C Manuf. Calm v. Qung Wah Lung, 28 Fed. R. 396; 
 Co., 8 Blatchf. 107 ; Central Trust Co. v. Ryan v. Gould, 32 Fed. R. 754. Contra, 
 Wabash, St. L. & P. R. Co., 32 Fed. R. Goodyear v. Sawyer, 17 Fed R. 2. 
 
 684. 14 Goodyear v. Sawyer, 17 Fed. R. 2. 
 
 8 "Wooster v. Handy, 23 Fed. R, 49 ; 15 Goodyear D. V. Co. v. Osgood, 13 
 Goodvear D. V. Co. v. Osgood, 2 B. & A. Off. Gaz. 325. 
 
 Pat. Cas. 529 ; Coy v. Perkins, 13 Fed. R. 16 Gorse v. Parker, 36 Fed. R. 840. 
 
 Ill ; Yale Lock Manuf. Co. v. Colvin, 14 17 Wooster v. Handy, 23 Fed. R. 49, 57 ; 
 
 Fed. R. 269. Contra, Goodyear v. Sawyer, Re Strauss v. Meyer, 22 Fed. R. 407 ; 
 
 17 Fed. R. 2. Tuck v. Olds, 29 Fed. R. 883 ; Troy Iron 
 
 9 Andrews v. Cole, 20 Fed. R. 410. & Nail Factory v. Corning, 7 Blatchf. 16. 
 i" Wooster v. Handy, 23 Fed. R. 49 ; 18 Troy Iron & Nail Factory v. Corning, 
 
 Wigton v. Brainerd, 28 Fed. R. 29. 7 Blatchf. 16. 
 
 ii Doughty v. W. B. & C. Manuf. Co., 19 Strauss v. Meyer, 22 Fed. R. 467 ; 
 
 8 Blatchf. 107. Tuck v. Olds, 29 Fed. R. 883; Mo. Pac. 
 
 12 Central Trust Co. v. Wabash, St. L. Ry. Co. v. Texas & P. Ry. Co., 38 Fed.
 
 § 330.] attorney's fees. 433 
 
 an interlocutory application, such as an application for leave to 
 intervene, 20 or an application for an interlocutor}'' injunction, 21 
 or an application to punish a person for a contempt. 22 In a 
 case where the deposition of a witness who lived more than 
 one hundred miles from the place of trial had been taken de 
 bene esse by the plaintiff, and subsequently the defendant per- 
 suaded him to appear upon the trial, so that the deposition was 
 not read in evidence ; the fee for and the expense of taking 
 the deposition were allowed to be taxed by plaintiff. 23 When 
 the testimony of several witnesses is taken by the same officer 
 and returned to court under the same enclosure, the testimony 
 of each witness is considered as a separate deposition. 24 As 
 to the taxation of the fee for taking a deposition which is 
 admitted in evidence in several suits, the decisions are not 
 harmonious. It seems settled that when, by stipulation, a 
 deposition is taken once for use in several suits, in each of 
 which it is entitled, and in each of which the witness is sworn, 
 a deposition fee may be taxed in each suit. 25 Where, however, a 
 deposition taken in one suit is by stipulation read in another, the 
 rule, except in the district of Tennessee 26 and perhaps in that of 
 New Jersey, 27 would seem to be that the fee can only be taxed in 
 the first suit. 28 The expenses of taking the deposition cannot be 
 deducted from the attorney's fee. 29 It has been held that the fee 
 cannot be taxed in favor of a party who did not appear by an attor- 
 ney at the taking of the deposition. 30 The attorney's costs belong 
 to the party, not to his attorney, and proceedings to collect them 
 should be taken in the name of the party. 31 In the absence of a 
 special agreement, however, the value of the attorney's services to 
 his client will be considered as worth at least the taxable costs. 32 
 
 775. Contra, Ingham v. Pierce, 37 Fed. Fed. R. 660 ; Green v. French, 5 N. J. 
 
 R. 647. L. J. 228. 
 
 M Central Trust Co. v. Wabash, St. L. 20 j or man v. Stewart, 12 Fed. R. 271 ; 
 
 & P. Ry. Co, 32 Fed. R, 684; Mo. Pac. Archer v. Hartford Fire Ins. Co., 31 Fed. 
 
 Ry. Co. v. Texas & P. Ry. Co., 38 Fed. R. 660. 
 
 R. 775. 27 Green v. French, 5 N. J. L. J. 228. 
 
 21 Stinipson v. Brooks, 3 Blatchf. 456. 2S Woostcr v. Handy. 23 Fed. R. 49, 
 
 22 Spill v. Celluloid Manuf. Co., 28 58; Am. Diamond R. B. Co. v. Sheldon. 
 Fed. R. 870. 28 Fed. R. 217 ; Winegar v. Calm, 29 
 
 23 Hunter v. International Ry. Imp. Fed. It. 676. 
 
 Co., 28 Fed. R. 842. 29 Broyles v. Buck, 37 Fed. R. 137. 
 
 24 Broyles v. Buck, 37 Federal Re- 30 Winegar v. Calm, 29 Fed. R. 676. 
 porter, 137. 31 Broyles v. Buck, 37 Fed. R. 137. 
 
 M Wooster v. Handy, 23 Fed. R. 49, 82 Celluloid Manuf. Co. v. Chandler, 
 63 ; Archer v. Hartford Fire Ins. Co. 31 27 Fed. R. 9.
 
 484 COSTS AT LAW AND IN EQUITY. [CHAP. XXV. 
 
 §331. Clerk's Fees. — The fees of the clerk of the Supreme 
 Court are fixed by rule as follows : " For docketing a case and 
 filing and indorsing the transcript of the record, five dollars. 
 For entering an appearance, twenty-five cents. For entering a 
 continuance, twenty-five cents. For filing a motion, order, or 
 other paper, twenty-five cents. For entering any rule, or for 
 making or copying any record or other paper, twenty cents per 
 folio of each one hundred words. For transferring each case to 
 a subsequent docket and indexing the same, one dollar. For 
 entering a judgment or decree, one dollar. For every search of 
 the records of the court, one dollar. For a certificate and seal, 
 two dollars. For receiving, keeping, and paying money in pur- 
 suance of any statute or order of court, two per cent, on the 
 amount so received, kept, and paid. For an admission to the 
 bar and certificate under seal, ten dollars. For preparing 
 the record or a transcript thereof for the printer, indexing the 
 same, supervising the printing, and distributing the printed 
 copies to the justices, the reporter, the law libraiy, and the par- 
 ties or their counsel, fifteen cents per folio. For making a man- 
 uscript copy of the record, when required under Rule 10, twenty 
 cents per folio, but nothing in addition for supervising the print- 
 ing. For issuing a writ of error and accompanying papers, five 
 dollars. For a mandate or other process, five dollars. For every 
 copy of any opinion of the court, or any justice thereof, certified 
 under seal, one dollar for every printed page, but not to exceed 
 five dollars in the whole for every copy." 1 In all cases the 
 plaintiff in error or appellant, on docketing a case and filing the 
 record, must enter into an undertaking to the clerk, with surety 
 to his satisfaction for the payment of his fees, or otherwise satisfy 
 him in that behalf. 2 If the clerk demand the fees in advance, 
 they must be paid. 3 The proper method of collecting such costs 
 from the parties or their sureties, is to issue an attachment 
 against them, respectively, to compel payment of fees. 4 
 
 The fees of the clerks of Circuit and District Courts, which 
 are payable by the parties to civil suits and proceedings at law 
 and in equity, and taxed as part of the costs therein, are fixed 
 by statute as follows : — 
 
 § 331. * Supreme Court Rule 24; 22 8 Steever v. Riekman, 109 U. S. 74. 
 
 St. at L. ch. 443, p. 631. 4 Supreme Court Rule 10. 
 
 2 Supreme Court Rule 10.
 
 S 331.] clerk's fees. 485 
 
 " For issuing and entering every process, commission, sum- 
 mons, capias, execution, warrant, attachment, or other writ, 
 except a writ of venire, or a summons or subpoena for a wit- 
 ness, one dollar." 
 
 "For issuing a writ of summons or subpoena, twenty-five 
 cents." 6 
 
 " For filing and entering every declaration, plea, or other paper, 
 ten cents." 7 No paper is considered filed unless it has the 
 proper indorsement by the clerk. 8 Merely placing a paper in the 
 court papers is no filing. 9 When it is necessary to enter on 
 the calendar a note of such filing, an additional fee of fifteen cents 
 is allowed. 10 The clerk is entitled to ten cents for every sepa- 
 rate voucher filed by him, though such vouchers are filed with his 
 report of moneys on hand. 11 
 
 " For administering an oath of affirmation, except to a juror, 
 ten cents." 12 
 
 " For taking an acknowledgment, twenty-five cents." 13 
 
 " For taking and certifying depositions to file, twenty cents for 
 each folio of one hundred words." 14 Where a suit is voluntarily 
 dismissed by the complainant, without a submission or hearing, 
 on a settlement of the case at complainant's costs with consent 
 of the defendant and the attorneys of both parties, the solicitor's 
 fees for taking depositions are not allowable ; but the clerk's fees 
 are a proper charge under a decree dismissing the case at com- 
 plainant's costs. 15 
 
 " For a copy of such deposition furnished to a party on request, 
 ten cents a folio." 16 A party may tax the fee paid for a copy of 
 his own deposition, for use in printing the evidence, as required 
 by a rule. 17 
 
 "For entering any return, rule, order, continuance, judgment, 
 decree, or recognizance, or drawing any bond, or making any 
 record, certificate, return, or report, for each folio, fifteen 
 
 5 U. S. R. S. § 828. Henry Amy & Co. v. Shelby County, 1 
 
 o U. S. R. S. § 828. Flippin, 104. 
 
 * U. S. R. S. § 828. n Goodrich v. U. S., 35 Fed. R. 193. 
 
 s Erwin v. U. S., 37 Fed. R. 470, 484 ; *- U. S. R. S. § 828. 
 Henry Amy & Co. v. Shelby County, 1 13 U. S. R. S. § 828. 
 Flippin, 104. i4 U. S. R. S. § 828. 
 
 » Erwin u. U. S., 37 Fed. R. 470, 484 ; 15 Calm v. Qung Wah Lung, 28 Fed. 
 
 Henry Amy & Co. v. Shelby County, 1 R. 396. 
 Flippin, 104. ™ U. S. R. S. § 828. 
 
 i " Erwin v. U. S., 37 Fed. R. 470, 481 ; 17 Brewster v. Shuler, 38 Fed. R. 519.
 
 48G COSTS AT LAW AND IN EQUITY. [CHAP. XXV. 
 
 cents." 18 When, by order of the court, the clerk enters upon 
 the minutes a proceeding in a court of official character, such as 
 a memorial concerning the death of a public man, the fee for 
 entering is properly chargeable to the government. 19 When the 
 number of words is less than one hundred, they are counted a 
 folio ; and as such entry is, in fact, a record, the departmental 
 construction is the proper one, which gives the clerk ten cents 
 for filing a paper, and fifteen cents for the record entry in the 
 calendar. 20 The clerk may charge fees in an equity cause, as to 
 absent defendants, as to whom the cause is continued. 21 Where 
 a cause, after being referred to an auditor, is, with the sanction 
 of the court, settled by the parties, and entry made, " Dismissed, 
 at defendant's costs, by consent," the process and pleadings in 
 the State court, together with the proceedings for removal sent 
 up in the transcript, and the proceedings in the Federal court, 
 should be entered upon the final record ; and the clerk may 
 properly charge fifteen cents per folio for such entry. 22 A judg- 
 ment is an order of the court within the meaning of the fee 
 bill. 23 
 
 " For a copy of any entry or record, or of any paper on file, 
 for each folio, ten cents." 24 The clerk is entitled to ten and not 
 fifteen cents per folio for transcripts of a record. 25 A transcript 
 is but a copy ; 26 and where the clerk makes the copy of subpoenas 
 or subpoena tickets, and furnishes them to the marshal for service, 
 at the request or by the acquiescence of the district attorney, 
 the clerk is entitled to charge the government ten cents each, 
 as for one folio, for making such copies. 27 In the Southern 
 District of New York it has been held in several cases, not 
 reported, that this authorizes the clerk to forbid an attorney 
 or party to himself copy a paper in a suit, or even an opinion, 
 without payment of the same fees as if the clerk made the copy. 
 But the propriety of such a practice, which compels a citizen to 
 pay a fee before he can learn the law for disobedience to which 
 he may be punished, is very doubtful. 
 
 is TJ. S. R. S. § 828. 21 Blake v. Hawkins, 19 Fed. R. 204. 
 
 19 Ervvin v. U. S., 37 Fed. R. 470. 2i U. S. R. S. § 828. 
 
 23 Amy v. Shelby County, 1 Flippin, ^ Cavender v. Cavender, 3 MeCrary, 
 
 104. 383. 
 
 2i Ex parte Lee, 4 Cranch C. C. 197. 26 Cavender v. Cavender, 3 MeCrary, 
 
 22 Blain v. Home Ins. Co., 30 Fed. R. 383. 
 6(37. 27 Erwin v. U. S., 37 Fed. R. 470, 490. 

 
 § 331.] clerk's fees. 437 
 
 " For making dockets and indexes, issuing venire, taxing costs, 
 and all other services, on the trial or argument of a cause where 
 issue is joined and testimony is given, three dollars." 28 An 
 attachment against a defaulting witness or juror for contempt of 
 court is an independent suit, and a "cause" for which a docket 
 fee is chargeable under the fee-bill. 29 The clerk is required to 
 make a final record of the proceedings in such case. 30 
 
 " For making dockets and indexes, taxing eosts, and all other 
 services, in a cause where issue is joined, but no testimony is 
 given, two dollars." 31 
 
 "For making dockets and indexes, taxing costs, and other 
 services, in a cause which is dismissed or discontinued, or where 
 judgment or decree is made or rendered without issue, one 
 dollar." 32 
 
 " For making dockets and taxing costs, in cases removed by- 
 writ of error, or appeal, one dollar." 33 
 
 " For affixing the seal of the court to any instrument, when 
 required, twenty-five cents." 31 
 
 "For every search for any particular mortgage, judgment, or 
 other lien, fifteen cents." 35 The clerk is entitled to a fee of ten 
 cents for filing a requisition for such a search. 36 
 
 "For searching the records of the court for judgments, de- 
 crees, or other instruments constituting a general lien on real 
 estate, and certifying the result of such search, fifteen cents for 
 each person against whom such search is required to be made." 37 
 As the statutes do not expressly provide for compensation to the 
 clerk for searching for petitions in bankruptcy, it has been held 
 that a reasonable compensation for such service is fifteen cents 
 for each name against which search is made. 3S The clerk of the 
 Circuit Court, instead of certifying the result of a search for liens 
 on the original requisition delivered to him, may, and perhaps 
 should file such requisition, and give the certificate of the result 
 of the search on another paper. A charge of ten cents for 
 filing such paper is proper, 39 and so also is a charge of fifteen 
 
 28 U. S. R. S. § 828. 35 u. S. R. S. § 828. 
 
 29 Erwin v. U. S., 37 Fed. R. 470. 3; In re Petition of Woodbury, 7 Fed 
 31 Erwin v. U. S., 37 Fed. R. 470. R. 705. 
 
 81 U. S. R. S. § 828. 37 tj. S. R. S. § 828. 
 
 82 U. s. R. s. § 828. 88 Matter of Vermeule, 10 Ren. 1. 
 
 U. S. 1!. S § 828. 39 Ex parte Woudbury, 7 Fed. R. 705. 
 
 81 U. S. R. S. § 828.
 
 4S8 COSTS AT LAW AND IN EQUITY. [CHAP. XXV. 
 
 cents for each person against whom a search is required to be 
 made, as compensation for making the search, and for the act of 
 signing the certificate and certifying the result. 40 A compensa- 
 tion of fifteen cents per folio for making the certificate is 
 proper ; but not a charge for affixing the seal of the court to such 
 certificate, unless required. 41 
 
 " For receiving, keeping, and paying out money, in pursuance 
 of any statute or order of court, one per centum on the amount 
 so received, kept, and paid." 42 This charge has been held to 
 include money collected by the marshal on executions. 43 Where 
 an assignee in bankruptcy files a bill in the Circuit Court to settle 
 conflicting claims to the proceeds of a sale, it is not his duty to 
 pay the proceeds into the registry of the court ; and consequently 
 the clerk is not entitled to commissions on such money. 44 It has 
 been held that the fact that the money is subject to the decree 
 of the court, it not being in the court's registr} T , is not enough to 
 give the clerk a right to commissions. 45 But a subsequent 
 decision holds that money deposited in a bank, under a decree of 
 the court, and subject to its order, is within the meaning of 
 chapter 20, of the Acts of 1793, which provides that the clerk 
 shall be entitled to a percentage on " all money deposited in 
 court." 46 The money must either actually or constructively 
 pass through the clerk's hands. 47 Money received by a master 
 in chancery in payment of property sold upon the foreclosure of 
 a mortgage, ought, in pursuance of U. S. R. S. sec. 995, to be 
 deposited with a designated depositary of the United States, and 
 the clerk is entitled to his commissions thereon. 48 So a clerk 
 who receives, keeps, and pays out money under a judgment is 
 entitled to a commission of one per cent on the amount so 
 received, the same to be paid by the defendant as a part of the 
 costs. 49 All books in the offices of the clerks of the Circuit and 
 District Courts, containing the docket or minute of the judg- 
 ments, or decrees thereof, must during office hours be open 
 to the inspection of any person desiring to examine the same, 
 without any fees or charge therefor. 50 
 
 40 Ex parte Woodbury, 7 Fed. R. 705. 46 Ex parte Prescott, 2 Gall. 146. 
 
 41 Ex parte Woodbury, 7 Fed. R. 705. 4 ? Leech v. Kay, 4 Fed. R. 72. 
 
 « 2 U. S. R. S. § 828. « Thomas v. Chicago & C. S. Ry. Co., 
 
 43 Fagan v. Cullen, 28 Fed. R. 843. 37 Fed. R. 548. 
 
 44 Leach v. Kav, 2 Flippin C. C. 590. 49 Blake v. Hawkins, 19 Fed. R. 204. 
 
 45 Ex parte Plitt, 2 Wall. Jr. 453. «> U. S. R. S. § 828.
 
 § 332.] marshal's fees. 489 
 
 §332. Marshal's Fees. — The marshal of the Supreme Court 
 of the United States is entitled to receive for the service of any 
 warrant, attachment, summons, capias, or other writ, except ex- 
 ecution, venire, or a summons, or subpoena for a witness, one 
 dollar for each person on whom such service may be made. 1 
 His fees for all other services are the same as are allowed to 
 other marshals. 2 
 
 The fees of the marshals of the courts of the United States, 
 which are payable by the parties, and taxable as part of the costs 
 in civil suits and proceedings at law and in equity, excluding 
 from consideration their fees in admiralty and proceedings to 
 enforce forfeitures, are as follows: — 
 
 " For service of any warrant, attachment, summons, capias, or 
 other writ, except execution, venire, or a summons or subpoena 
 for a witness, two dollars for each person on whom service is 
 made." 8 The marshal has the right to demand in advance the 
 payment of fees for the service of process. 4 Where the marshal 
 arrests the wrong person, or arrests the right person but believ- 
 ing him to be in one State when in fact he was in another, he 
 cannot be allowed fees of any kind. 5 The marshal is not en- 
 titled to a fee for an arrest, when he allows the prisoner to go 
 free on his promise to attend court ; nor when the arrest is not 
 authorized by the warrant. 6 Charges for ' ; aid " or assistance are 
 allowed where the nature of the case renders it proper, and the 
 amount claimed is shown to be reasonable. 7 
 
 " For the keeping of personal property attached on mesne pro- 
 cess, such compensation as the court, on petition setting forth 
 the facts under oath, may allow." 8 
 
 "For serving a writ of subpoena on a witness, fifty cents, and 
 no further compensation shall be allowed for any copy, summons, 
 or notice for a witness." 9 
 
 " For serving a writ of possession, partition, execution, or any 
 final process, the same mileage as is allowed for the service of 
 any other writ, and for making the service, seizing or levying on 
 property, advertising and disposing of the same by sale, set-off, 
 
 § 332. i U. S. R. S. § 832. « United States v. Ebbs, 10 Fed. R. 
 
 2 U. S. R. S. § 832. 309; s. c. 4 Hughes, 473. 
 8 U. S. R. S. § 829. 1 Ex parte Paris. 3 W. & M. 'J27. 
 
 * Ray v. Knowlton, 11 Biss. C. C. 300 ; 8 U. S. R. S. § 829. 
 
 Duy >•. Knowlton, 14 Fed. R. 107. » U. S. R. S. § 829 
 
 5 Matter of Crittenden, 2 Flippin, 212.
 
 400 
 
 COSTS AT LAW AND IN EQUITY. 
 
 [CHAP. XXV. 
 
 or otherwise according to law receiving and paying over the 
 money, the same fees and poundage as are or shall be allowed for 
 similar services to the sheriffs of the States respectively, in which 
 the service is rendered." 10 If the State court compensates services 
 similar to those performed by a marshal, although not performed 
 there by a like officer, the marshal is entitled to the same com- 
 pensation. 11 When an execution against the person was issued 
 in the county of New York, the defendant held under arrest for 
 some time, and the action subsequently settled by a compromise, 
 the defendants paying a smaller sum than that specified in the 
 execution, it was held that the marshal was entitled to poundage 
 on the whole amount for which the execution issued ; and that 
 the rate of poundage should be that allowed the sheriffs in the 
 different counties throughout the State, and not the special rate 
 allowed in the county of New York. 12 Where the marshal who 
 levied the execution has received his half commissions, his suc- 
 cessor will be entitled to no more than half commissions for com- 
 pleting the collection and paying it over. 13 
 " For each bail-bond, fifty cents." 14 
 " For summoning appraisers, fifty cents each." 15 
 " For executing a deed prepared by a party or his attorney, 
 one dollar." 16 
 
 " For drawing and executing a deed, five dollars." 17 The 
 marshal cannot object to the purchaser drawing his own deed, if 
 he so choose. 18 
 
 " For copies of writs or papers furnished at the request of any 
 party, ten cents a folio." 19 
 
 " For travel, in going only to serve any process, warrant, at- 
 tachment, or other writ, including writs of subpoena in civil or 
 criminal cases, six cents a mile, to be computed from the place 
 where the process is returned to the place of service, or, when 
 more than one person is served therewith, to the place of service 
 which is most remote, adding thereto the extra travel which is 
 necessary to serve it on the others. But when more than two 
 writs of any kind required to be served in behalf of the same 
 
 i" U. S. R. S. § 829. 
 11 Pomrov v. Harter, 1 McLean, 448 ; 
 The Trial. 1 Blatchf. & H. 94. 
 
 i 2 United States v. Haas, 5 Fed. R. 29. 
 13 15 Op. Atty.-Gen. 346. 
 » U. S. R. S." § 829. 
 
 is U. S. R. S. § 829. 
 i 6 U. S. R, S. § 829. 
 i T U. S. R. S. § 829. 
 is The John E. Mulford, 18 Fed. R. 
 455. 
 
 19 U. S. R. S. § 829.
 
 § 333.] witnesses' fees. 491 
 
 party on the same person might be served at the same time, the 
 marshal shall be entitled to compensation for travel on only two 
 of such writs ; and to save unnecessary expense, it shall be the 
 duty of the clerk to insert the names of as many witnesses in a 
 cause in such subpoena as convenience in serving the same will 
 permit." 20 
 
 The fees for services of a deputy marshal belong legally 'to the 
 marshal, and he controls them. The marshal's receipt must 
 operate as a discharge of the fees. 21 The fact that no return of 
 the appointment of a deputy was made by the marshal to the 
 District Judge, if the deputy was duly appointed and sworn, 
 would not affect the legality of the service of the subpoenas by 
 the deputy, so as to deprive him of the right to fees. 22 
 
 § 333. Witnesses' Fees. — A witness' fees are, " for each day's 
 attendance in court, or before any officer pursuant to law, one 
 dollar and fifty cents, and five cents a mile for going from his 
 place of residence to the place of trial or hearing, and five cents 
 a mile for returning." 1 When a witness is subpoenaed in more 
 than one cause between the same parties, at the same court, only 
 one travel fee and one per diem compensation is allowed for at- 
 tendance. 2 Both are taxed in the case first disposed of, after 
 which the per diem attendance fee alone is taxed in the other 
 cases in the order in which they are disposed of. 3 When a wit- 
 ness is detained in prison for want of security for his appearance, 
 he is entitled, in addition to his subsistence, to a compensation 
 of one dollar a day. 4 A witness can be subpoenaed, and must be 
 allowed mileage from and to his residence, in any part of a dis- 
 trict, to attend a court held within that district, 5 or from another 
 district if he does not reside more than one hundred miles from 
 the place of trial. 6 If a witness resides more than one hundred 
 miles from the place of trial and voluntarily attends, he can, ac- 
 cording to the ruling in the Second Circuit, only recover mileage 
 for one hundred miles. 7 But it was held by the District Court of 
 South Carolina that a witness for the United States, voluntarily 
 
 21 U. S. R. S. § 829. G U. S. R. S. § 876 ; The Syracuse, 36 
 
 21 Wintermute v. Smith, 1 Bond, 210. Fed. R. 830. 
 
 22 Wintermute v. Smith, 1 Bond, 210. 7 Anon., 5 Blatchf. 134; Eastman v. 
 § 333. l U. S. R. S. § 848. Sherry, 37 Fed. R. 844; The Vernon, 36 
 2 U. S. R. S. § 848. Fed. R. 113; Haines v. McLaughlin, 20 
 8 U. S. R. S. § 848. Fed. R. 70; Buffalo Ins. Co. v. Prov. & 
 4 IT. S. R. S. § 848. Stonington S. S. Co., 20 Fed. R 237. 
 
 6 The Syracuse, 30 Fed. R. 830.
 
 492 COSTS AT LAW AND IN EQUITY. [CHAP. XXV- 
 
 coming to and attending court on the verbal instructions of the 
 district attorney, is entitled to the per diem and mileage fees, 
 although his residence is out of the district, and more than one 
 hundred miles from the place at which the court is held. 8 Ac- 
 cording to rulings in the First Circuit, a witness is entitled to 
 mileage from his residence, no matter how far distant it may be. 9 
 The Circuit Court of Iowa lays down the rule as follows: k ' The 
 general rule, therefore, is that as testimony by deposition can be 
 taken when the witness resides more than one hundred miles from 
 the place of trial, mileage for a greater distance is not ordinarily 
 chargeable against the party not summoning the witness." 10 And 
 this it holds to be the rule, whether the witness resides within 
 or without the district. 11 But as between the witness and the 
 party summoning him, the witness is entitled to the mileage and 
 per diem fees, whatever the distance traveled. 12 It has been 
 held by the District Court of South Carolina, that a person is 
 entitled to mileage from his place of residence, when, under a 
 subpoena as a witness of the United States, he attended court, 
 and the case was continued, and the witnesses were verbally 
 instructed to attend at the next term, even though in the mean- 
 time he has removed his residence into another State, and with- 
 out further summons attends court and is used as a witness 
 by the United States. 13 In the First Circuit, when a witness, 
 without having been summoned, has traveled from and to the 
 place of his residence, which is more than one hundred miles 
 from the place of trial and in another State and district, mileage 
 is allowed for the whole distance. 14 A witness does not lose his 
 right to his fees merely because he was not subpoenaed, if his 
 attendance and examination were procured in good faith. 15 Nor 
 if he attends, but is not examined ; 16 nor, it seems, if he is re- 
 quired to attend at the hearing after his deposition has been 
 taken ; 17 nor does he suffer any abatement of them, because he is 
 
 8 In re Williams, 37 Federal Reporter, 12 Smith v. Chicago & N. W. Ry. Co., 
 325. 38 Fed. R. 321. 
 
 9 Prouty v. Draper, 2 Story, 109; 13 /n re Williams, 37 Fed. R. 325. 
 Whipple v. Cumberland Cotton Manuf. M United States v. Sanborn, 28 Fed. R. 
 Co., 3 Story, 84 ; Hathaway v. Roach, 2 299. 
 
 W. & M. 63 ; United States v. Sanborn, 1 5 Anderson v. Moe, 1 Abb. (U. S.) 299 ; 
 28 Fed. R. 299. United States v. Sanborn, 28 Fed. R. 299; 
 
 10 Smith v. Chicago & N. W. Ry. Co., The Vernon, 36 Fed. R. 113. 
 
 38 Fed. R. 321. 16 Hathaway v. Roach, 2 W. & M. 63. 
 
 11 Smith v. Chicago & N. W. Ry. Co., 17 Beckwith v. Easton, 4 Benedict, 
 38 Fed. R. 321. 357 ; Anderson v. Moe, 1 Abb. (U. S.) 299. 

 
 § 333.] witnesses' fees. 493 
 
 summoned to attend at the same time to testify in several suits, 
 whenever some but not all the parties are the same ; 18 not even 
 if both suits are tried together and the witness is examined but 
 once, provided no order consolidating the suit has been ob- 
 tained. 19 When the hearing is postponed on account of the ill- 
 ness of counsel, and the witnesses are required to remain during 
 the postponement, they must be paid for the intervening time. 20 
 So, also, when the witnesses are required to remain after their 
 examination to the end of the hearing. 21 It has been held that 
 when a person has been served with a subpoena and has received 
 money for traveling expenses, he cannot refuse to obey such sub- 
 poena because the proper amount of mileage has not been paid. 22 
 And persons subpoenaed as witnesses in the courts of the United 
 States, if they have the means, are obliged to obey whether their 
 fees are advanced or not. 23 If a witness is subpoenaed at the 
 place of trial on the day when the subpoena requires him to at- 
 tend, he is not entitled to any mileage. 24 Fees for travel of wit- 
 nesses in going and returning can only be taxed once for each 
 occasion of taking testimony, although each occasion embraces' a 
 number of days. 25 It is not necessary that a witness should 
 actually be called and sworn on the trial in order to entitle him 
 to fees. 26 A witness subpoenaed by the prevailing party to the 
 suit cannot upon his own motion have his fees that remain un- 
 paid taxed in the bill of costs against the losing party ; and it 
 seems that a party cannot have such fees taxed until he has paid 
 the witness, either before or after the service has been rendered, 
 and before judgment for costs. 27 Witnesses do not lose their 
 right to mileage and per diem fees by not insisting upon prepay- 
 ment ; nor by the fact that they were in attendance on the court 
 in another cause between different parties, and received per 
 diem and mileage fees therefor. 28 And witnesses summoned and 
 
 18 Parker v. Bigler, 1 Fisher, 283; The 2l The Sunnyside, 5 Benedict, 102. 
 Vernon, 36 Fed. R. 113. 25 Spill v. Celluloid Manuf. Co., 28 
 
 19 The Vernon, SO Fed. R. 113. Fed. R. 870. 
 
 21 Whipple v. Cumberland Cotton 26 Clark v. Am. Dock & Improvement 
 Manuf. Co, 3 Story, 84. Co., 25 Fed. K.Gil ; Hathaway v. Koach, 
 
 - 1 Whipple i'. Cumberland Cotton 2 W. & M. 63. 
 Manuf. Co, 3 Story, 84. ■" O^Neil v. Kansas City, S. & M. K. Co., 
 
 22 Norris v. Hasler, 23 Fed. R. 581 ; 31 Fed. K. 663. 
 
 United States v. Hurling, 4 Biss. 509. 28 Young v. Merchants' Ins. Co., 29 
 
 28 Norris v. Ilassler, 23 Fed. R. 581; Fed. R. 273. 
 United States v. Durling, 4 Biss. 509, 
 510.
 
 494 COSTS AT LAW AND IN EQUITY. [CHAP. XXV. 
 
 attending court are entitled to their mileage and per diem fees if 
 the cause was docketed and could have been tried at the term at 
 which the witnesses attended. 29 Where witnesses were sub- 
 poenaed to testify to a particular point, though the opposite party- 
 admitted the point, mileage and per diem fees up to the time of 
 such admission were allowed ; 30 and a second trial being had, and 
 no stipulation or entry made on the record that the point would be 
 admitted at such second trial, such per diem and mileage fees were 
 allowed for attendance at that trial also. 31 But it is held on the 
 other hand, that a party may not tax the fees of a witness whom 
 he has subpoenaed, but whose testimon}- is either abandoned or 
 stricken out ; 32 nor may he tax the fees of more than three wit- 
 nesses to a single fact; 33 nor fees and mileage for himself when 
 he testifies in his own behalf. 34 Where a defendant corporation 
 was ordered to account before a master in a suit for an infringe- 
 ment of a patent, the officers thereof attending as witnesses were 
 held not entitled to mileage and per diem fees upon the taxation 
 of costs by such defendant. 35 Only the necessary expenses of a 
 government clerk sent away from his place of business as a wit- 
 ness for the government will be paid, and nothing can be taxed 
 in the bill of costs for his travel or attendance. 36 The same rule 
 applies to deputy-clerks, as they are also officers of the court. 37 
 But clerks employed by the marshal in his office, keeping his 
 accounts, are not officers of the court, and are entitled to fees 
 and mileage. 38 A deputy-marshal is an officer of the court ; but 
 unless he is actually engaged in attendance upon the court, he 
 is entitled to per diem fees and mileage if summoned as a 
 witness by the government. 39 
 
 §334. Miscellaneous Disbursements. — The Federal courts are 
 not absolutely limited in the taxation of costs to such items as 
 are specifically named in the statute. 1 Disbursements for print- 
 ing the record, evidence, and other papers in a suit in equity, 
 
 29 Young v. Merchants' Ins. Co., 29 35 Am. Diamond Drill Co. v. Sullivan 
 Fed. R. 273. Macli. Co., 32 Fed. It. 552. 
 
 39 Young v. Merchants' Ins. Co., 29 35 U. S. R. S. § 850 ; U. S. It. S. § 849 ; 
 Fed. it. 273. United States v. Sanborn, 28 Fed. It. 299. 
 
 31 Young v. Merchants' Ins. Co., 29 37 Ex parte Burdell, 32 Fed. R. 681. 
 Fed. R. 273. 38 Ex parte Burdell, 32 Fed. R. 681. 
 
 32 Troy Iron & Nail Factory v. Corning, 39 Ex parte Burdell, 32 Fed. R. 681. 
 
 7 Blatchf. 16. § 334. » Spaulding v. Tucker, 2 Saw- 
 
 33 Bussard v. Catalino, 2 Cranch C. C. yer, 50 ; Gunther v. Liverpool, L. & G. 
 421. Ins. Co., 10 Fed. R. 830. 
 
 zi Nichols v. Brunswick, 3 Cliff. 88. 

 
 § 334] MISCELLANEOUS DISBURSEMENTS. 495 
 
 when required by rule, are taxable as costs. 2 Disbursements for 
 printing testimony and other papers for the court when not re- 
 quired by rule cannot be thus taxed. 3 Disbursements for print- 
 ing objections to a petition to the Supreme Court in its original 
 jurisdiction, for a writ of mandamus, are taxable ; but disburse- 
 ments for printing briefs are not. 4 If copies of papers, necessarily 
 obtained for use, are put in evidence, and no order is made re- 
 jecting them as evidence, it is the duty of the clerk to allow, on 
 taxation, the disbursements paid for the various copies put in 
 evidence and forming part of the record for final hearings. 5 But 
 copies of papers obtained. for use on interlocutory or preliminary 
 or incidental motions or hearings are not obtained for use on 
 trials, and disbursements in procuring them cannot be taxed as 
 costs. 6 Disbursements taxable in a State court may when made 
 be taxed in an action at common law in a Federal court held in 
 the same State. 7 For taking and certifying depositions the Fed- 
 eral courts will tax, in favor of a clerk of the court or of a com- 
 missioner, the same fees as are allowed by Congress for that 
 service to any State official taking the deposition, and not the 
 fees allowed by the State law for a similar service. 8 Fees paid 
 an attorney for the examination of a witness before a master or 
 special examiner, 9 payments to an attorney for travelling ex- 
 penses, 10 payments to messengers, 11 payments to witnesses for ser- 
 vices in examining property concerning which they afterwards 
 testified, 12 cannot be taxed. Disbursements for surveys and plans 
 necessitated by an order to make a pleading more definite and 
 certain cannot be taxed. 13 Disbursements for copies of models 
 in the Patent Office used as evidence are taxable, 14 hut not dis- 
 bursements for other models. 15 When the defendant finally pre- 
 vailed and a decree directing him to account was set aside, lie 
 was allowed to include in his bill of costs the fees which he had 
 been obliged to pay the master. 16 A defendant who finally pre- 
 
 2 Jordan v. Agawam Woollen Co., 3 10 Wooster v. Handy, 23 Fed. R. 40. 
 
 Cliff. 239; Dennis v. Eddy, 12 Blatchf. » Wooster v. Handy, 23 Fed. R. 49. 
 
 195. 12 Tuck v. Olds, 29 Fed. 11. 883. 
 
 8 Spaulding v. Tucker, 2 Sawyer, 50. 13 New Hampshire Land Co. v. Tilton, 
 
 * Ex parte Hughes, 114 U. S. 548. 29 Fed. R. 704. 
 
 6 Wooster v. Handy, 23 Fed. R. 49. " Wooster v. Handy, 23 Fed. R. 40. 
 
 6 Wooster v. Handy, 23 Fed. R. 49. 1S Wooster v. Handy, 23 Fed. R. 49. 
 
 7 Huntress v. Epsom, 15 Fed. R. 732. 16 American Diamond Drill Co v. Sul- 
 R Jerman v. Stewart, 12 Fed. R. 271. livan M. Co., 32 Fed. R. 552. 
 
 fl Strauss v. Meyer, 22 Fed. R. 407.
 
 496 
 
 COSTS AT LAW AND IN EQUITY. 
 
 [CHAP. XXV. 
 
 vails cannot tax the costs he has paid upon the overruling of his 
 demurrer to the bill. 17 
 
 The fees of United States commissioners in civil cases are 
 as follows : for administering an oath, ten cents ; for taking an 
 acknowledgment, twenty-five cents ; for attending to a reference 
 in a litigated matter, in a civil cause at law, in equity, or in 
 admiralty, in pursuance of an order of the court, three dollars 
 a day ; for taking and certifying depositions to file, twenty cents 
 for each folio ; for each copy of the same furnished to a party 
 on request, twenty cents for each folio. 18 
 
 § 335. Costs out of the Fund. — Costs are paid out of a fund or 
 estate in the course of distribution by a court of equity, to trus- 
 tees who have been obliged to engage in litigation for the benefit 
 of the estate, and to persons who have been successful in suits 
 brought by them on behalf of themselves and others similarly sit- 
 uated. 1 The expression " trustees " is used here in the broadest 
 sense of the word, as including not only those appointed by a 
 deed of trust, but also agents, receivers, 2 and personal represen- 
 tatives. 3 All of these, when under a bill for an accounting they 
 account fairly and pay the balance due from them into court, are 
 entitled to their costs, 4 provided that they have not acted uncon- 
 scientiously in the suit 5 or in the previous administration of their 
 trust. 6 The same is true when a suit is honestly commenced by 
 one of them for the directions of the court concerning his trus- 
 teeship. 7 But in suits brought by or against any of them, except 
 possibly receivers, to which a stranger is a party, they are, if un- 
 successful, liable personally to him for the costs as between party 
 and party, 8 which costs, together with the expenses of the suit, 
 will be allowed them upon their accounting, 9 if the suit was 
 
 uel v. Jones, 2 Hare, 246 ; Curteis v. Can- 
 dler, Mad & Geld. 123. 
 
 6 Henley v. Philips, 2 Atk. 48 ; Lloyd 
 v. Spillat, 3 P. Wms. 344, 346 
 
 6 Howard v. Rhodes, 1 Keen, 581 ; 
 O'Callaghan v. Cooper, 5 Ves. 117, 129; 
 Hide v. Haywood, 2 Atk. 126. 
 
 i Hicks v. Wrench, Mad. & Geld. 93; 
 Henley v. Philips, 2 Atk. 48. 
 
 8 Edwards v. Harvey, G. Cooper, 40 ; 
 Poole v. Franks, 1 Molloy, 78 ; Westley 
 v. Williamson, 2 Molloy, 458. See §251. 
 
 9 Cowdrey v. Galveston, H. & H. R. R. 
 Co., 93 U. S. 352; Humphrys v. Moore, 
 2 Atk. 108. 
 
 » N. Y. Belting & Packing Co. v. N. J. 
 Car Spring & Rubber Co., 32 Fed. R. 755. 
 
 is U. S. R S. § 847. 
 
 § 335. 1 Cowdrey v. Galveston, II. & 
 H. R. R. Co., 93 U. S. 352 ; Trustees v. 
 Greenough, 105 U. S. 527; Central R. R. 
 & B. Co. v. Pettus, 113 U. S. 116. 
 
 2 Attorney-General v. The City of Lon- 
 don, 1 Ves. Jr. 243 ; s. c 3 Bro. C C. 171 ; 
 Curteis v. Candler, Mad. & Geld. 123. 
 
 3 Rashleigh v. Master, 1 Ves. Jr. 201 ; 
 Samuel v. Jones, 2 Hare, 246. 
 
 4 Attornev-General v. The City of Lon- 
 don, 1 Ves. Jr. 243 ; s. c. 3 Bro. C. C. 171 ; 
 Rashleigh v. Master, 1 Ves. Jr. 201 ; Sam-
 
 § 336.] COSTS AS BETWEEN SOLICITOR AND CLIENT. 497 
 
 prosecuted or defended in good faith for the benefit of their 
 trust. 10 Costs will also be paid out of a fund under the control 
 of a court of equity to persons who have been successful in a suit 
 concerning it, brought by them in behalf of themselves and others 
 similarly situated with them. 11 Instances of this are a suit 
 brought by a single creditor for a general administration of 
 assets, 12 and by a single beneficiary of a trust to prevent a loss to 
 the trust estate. 13 Costs have been allowed in a similar case to a 
 party who by his litigation had beneficed the fund, although he 
 eventually failed to establish his claim against it. 14 Such costs 
 are, in the distribution of the fund, paid before all claims against 
 it, except those of trustees who have not been guilty of miscon- 
 duct. 15 The same rule applies to a suit brought by a single cred- 
 itor of the estate against an executor or administrator for the 
 satisfaction of his own claim. 16 In such a case the personal 
 representative can only recover his costs from that part of the 
 estate which remains after the complainant has been paid the 
 full amount of his claim with costs, even though the creditor 
 thus sweeps away the entire estate. 17 Not so, however, when a 
 bill is filed by one creditor in behalf of himself and the rest for a 
 general administration of assets; in which case the personal rep- 
 resentative is always entitled to his costs out of the fund unless 
 he has forfeited them by his misconduct. 18 
 
 § 336. Costs as between Solicitor and Client. — Costs payable 
 out of a fund in court are termed costs as between solicitor and 
 client. 1 Costs as between solicitor and client include all reason- 
 able expenses and counsel fees, and are not, like costs as between 
 party and party, confined to the amount named in the statute. 2 
 
 ^ Henley v. Philips, 2 Atk. 48 ; Lloyd 1S Bennet v. Going, 1 Molloy, 529. 
 v. Spillat, 3 P. Wins. 344, 346. 16 Humphrys v. Moore, 2 Atk. 108 ; 
 
 11 Trustees v. Greenough, 105 U. S. Davy v. Seys, Moseley, 204. 
 
 627; Central R. R. & B. Co. v. Pettus, « Adair v. Shaw, 1 Sch. & Lef. 243, 
 
 113 U. S. 110; Ex parte Jaffray, In re 280; Uvedale v. Uvedale, 3 Atk. 117. 
 
 Waite & Crocker, 1 Lowell, 321 , Ex parte 18 Bennet v. Going, 1 Molloy, 529; 
 
 Plitt, 2 Wall. Jr. 453 ; Stewart v. Chesa- Young v. Everest, 1 R, & M. 420 ; Minuse 
 
 peake & Ohio Canal Co., 5 Fed. R. 149. v. Cox. 5 J. Ch. (N. Y.) 441. 
 
 12 Bennet v. Going, 1 Molloy, 529 ; § 330. x Trustees v. Greenough, 105 
 Hare v. Rose, 2 Ves. Sen. 558. See, how- U. S. 527. 
 
 ever, Mason v. Codwise, J. Ch. (N. Y.) '- Trustees v. Greenough, 105 U. S. 
 
 183. 527 ; Cowdrey v. G., H. & II. R. R. Co., 
 
 1 3 Trustees!-. Greenough, 105 U.S. 527; 93 U. S. 352; Ex parte Jaffray, In re 
 Stewart v. Chesapeake & Ohio Canal Co., Waite & Crocker, 1 Lowell, 321 ; Ex parte 
 5 Fed. R. 149. Plitt, 2 Wall. Jr. 453. 
 
 14 Ex parte Putt, 2 Wall. Jr. 453. 
 
 32
 
 498 COSTS AT LAW AND IN EQUITY. [CHAP. XXV. 
 
 la no case, however, will the personal expenses and compensa- 
 tion for the personal services of a person, not a trustee, who has 
 engaged in litigation in behalf of himself and others, be included 
 in them. 
 
 § 337. Taxation of Costs. — Costs as between party and party 
 are taxed by a judge or clerk of the court upon notice to the 
 adverse party, and are included in and form a portion of the 
 judgment or decree. 1 To each bill of costs should be attached 
 an affidavit by some person acquainted with the facts, stating 
 that the services for which fees are charged were performed. 2 
 The bills when taxed must be filed with the papers in the 
 cause. 3 When the taxation is by the clerk, a motion for a retaxa- 
 tion of the costs may be made before, or an appeal taken to, a 
 judge of the court. 4 A party who objects to a charge in lump 
 should demand a specification of the items of which it is com- 
 posed. 5 Where there is a dispute as to a question of fact, ma- 
 terial to the taxation of a bill of costs, a reference may be had 
 to an auditor. 6 Costs as between solicitor and client are taxed 
 by the court, usually by means of a reference to a master. 7 An 
 appeal from an erroneous allowance of such costs can be made 
 to the Supreme Court of the United States, provided that their 
 amount is sufficient to give that court jurisdiction. 8 Upon such 
 an appeal, that court may reverse the decree if the costs have 
 been awarded upon erroneous principles ; 9 but will very rarely 
 do so merely because it considers the sum allowed for a counsel 
 fee too large. 10 
 
 § 333. Security for Costs. — A complainant who does not reside 
 within the district may be compelled to give security for costs. 1 
 Such security may also be required of a non-resident defendant 
 to a bill of interpleader when he takes aggressive action. 2 In 
 
 § 337. J U. S. R. S. § 983. 9 Trustees v. Greenough, 105 U. S. 
 
 2 U. S. R. S. § 984 ; Jerman v. Stew- 627 ; Central R. R. & B. Co. v. Pettus, 
 art, 12 Fed. R. 271. 113 U. S. 116. 
 
 3 U. S. R. S. § 983. 10 Trustees v. Greenough, 105 U. S. 
 
 4 Re Strauss v. Meyer, 22 Fed. R. 467 ; 527. But see Central R. R. & B. Co. v. 
 Tuck v. Olds, 28 Fed. R. 883. Pettus, 113 U. S. 116. 
 
 5 Dedekam v. Vose, 3 Blatchf. 153. § 338. J Lyman Ventilating & Refrig- 
 
 6 Bottomley v. U. S., 1 Story, 153. erator Co. v. Southard, 12 Blatchf. 405. 
 
 7 Trustees v. Greenough, 105 U. S. But see Woodworth v. Sherman, 3 Story, 
 527; Central R. R. & B. Co. v. Pettus, 171. 
 
 113 U. S. 116; Cowdrey v. G. H. & H. 2 Gross & Phillips Manuf. Co. v. Ger- 
 R. R. Co., 93 U. S. 352. hard, 8 Reporter, 136. 
 
 8 Trustees v. Greenough, 105 U. S. 
 527; Angell v. Davis, 4 Myl. & C. 360. 
 
 i
 
 § 338.] SECUEITY FOR COSTS. 499 
 
 order to obtain an order compelling such security, the defend- 
 ant must move for it as soon as he ascertains the plaintiffs resi- 
 dence. 3 If he takes after such discovery any step in the cause 
 before moving, it seems that he thereby waives his right to se- 
 curity. 4 Upon a failure to file security when required, the plain- 
 tiff's proceedings will be waived. 5 When one of several plaintiffs 
 is a resident of the district, it seems that no security for costs 
 will be required. 6 If the defendant do not demand security for 
 costs within a reasonable time, it will not, when the cause is 
 called for trial, be a ground for a continuance that such security 
 has not been given. 7 Where a plaintiff has recovered judgment 
 against a solvent defendant, and process is outstanding in the 
 nature of an execution to collect the same, it is not proper to 
 require the plaintiff to make a deposit to secure costs due a com- 
 missioner. 8 It was held in New York, by Chancellor Kent, that 
 a person who sued in another's right, as an executor or adminis- 
 trator, could not be compelled to give security for costs. 9 
 
 8 Migliorucci v. Migliorucci, 1 Dick- 6 Winthorp v. Royal Exch. Ass. Co., 
 
 ens, 147 ; Foster v. Swasey, 2 W. & M. 1 Dickens, 282 ; Walker v. Easterby, 6 
 
 217; Bliss v. Brooklyn, 10 Blatchf. 217; Ves. 612; Gilbert v. Gilbert, 2 Paige Oh. 
 
 Prince v. Towns, 33 Fed. R. 161. (N. Y.) 603. 
 
 4 Migliorucci t\ Migliorucci, 1 Dick- 7 Hawkins v. Willbank, 4 Wash. 285. 
 
 ens, 147 ; Foster v. Swasey, 2 W. & M. • U. S. v. St. Charles Co., 31 Fed. R. 
 
 217 ; Bliss v. Brooklyn, 10 Blatchf. 217 ; 442. 
 
 Prince v. Towns, 33 Fed. R. 161. But 9 Goodrich v. Pendleton, 3 J. Ch. (N. 
 
 see Stewart v. The Sun, 36 Fed. R. 307. Y.) 520. See Cathcart v. Hewson, 1 
 
 6 Fox v. Blew, 5 Madd. 147. Hayes, 173.
 
 500 ENFORCEMENT OF DECREES AND ORDERS. [CHAP. XXVI. 
 
 CHAPTER XXVI. 
 
 ENFORCEMENT OF DECREES AND ORDERS. 
 
 § 339. Enforcement of Decrees and Orders, in General. — De- 
 crees and orders are enforced in five ways: by writ of execution, 1 
 by attachment, 2 by writ of sequestration, 3 by writ of assistance, 4 
 and by the action of the court itself through the medium of a 
 master 5 or receiver. 6 
 
 § 340. Executions. — The rules provide that "final process to 
 execute any decree may, if the decree be solely for the payment 
 of money, be by a writ of execution, in the form used in the 
 circuit court in suits at common law in actions of assumpsit." 1 
 A decree for a deficiency after a sale of mortgaged property in a 
 foreclosure suit is enforced in the same manner. 2 By a statute 
 passed June 1, 1872, and re-enacted December 1, 1873, "the 
 party recovering a judgment in any common law cause in any 
 circuit or district court, shall be entitled to similar remedies 
 upon the same, by execution or otherwise, to reach the property 
 of the judgment debtor, as are now provided in like causes by 
 the laws of the State in which such court is held, or by any such 
 laws hereinafter enacted which are adopted by general rules of 
 such circuit or district court ; and such courts may, from time to 
 time, by general rules, adopt such State laws as may hereafter be 
 in force in such State in relation to remedies upon judgments, as 
 aforesaid by execution or otherwise." 3 In cases where an appeal 
 lies to or a writ of error may issue from the Supreme Court, the 
 execution cannot issue till the expiration of ten days from the 
 entry of the decree or judgment. 4 The writ may, however, be 
 previously prepared by the clerk. 5 The marshal in the courts 
 
 § 339. i § 340. 2 Rule 92. 
 
 2 §§ 311-346. 8 U. S. R. S. § 916. See Lamaster 
 
 8 § 347. v. Keeler, 123 U. S. 376. 
 
 4 §348. i U. S. R. S. § 1008. 
 
 6 § 349. 6 Board of Commissioners v. Gorman, 
 
 6 Chapter, XVII. 19 Wall. 661. 
 § 340. i Rule 8. 

 
 § 340.] EXECUTIONS. 501 
 
 of the United States has duties analogous to those of the sher- 
 iff in the different States. 6 It is his duty " to attend the district 
 and circuit courts when sitting in Ins district, and to execute, 
 throughout the district, all lawful precepts directed to him, and 
 issued under the authority of the United States; and he shall 
 have power to command all necessary assistance in the execu- 
 tion of his duty." 7 "The marshals and their deputies have, in 
 each State, the same powers in executing the laws of the United 
 States, as the sheriffs and their deputies in such State have by 
 law, in executing the laws thereof." 8 Under these provisions 
 of the Revised Statutes, the marshal or his deputy, if resisted 
 when in the performance of his duty, may call to his aid a suffi- 
 cient force from his district, called the posse comitatus, or power 
 of his county, from the corresponding force which the sheriff 
 or county officer has at his command, 9 — that is, such number of 
 men as are necessary for his assistance in the execution of the 
 writs of the United States ; and herein every person above the 
 age of fifteen and able to travel is bound to be aiding, and if 
 they refuse to assist, may be punished by fine and imprisonment. 10 
 It has been said, that this force by the common law included all 
 persons, whatever might be their occupation, whether civilians or 
 not ; and including the military of all denominations, — militia, 
 soldiers, marines, — all of whom were alike bound to obey the com- 
 mands of a sheriff or marshal. " The fact that they are organized 
 as military bodies, under the immediate command of their own 
 officers, does not in any wise affect their legal character. They are 
 still the posse comitatus.' n n A recent act of Congress has, how- 
 ever, provided, that " From and after the passage of this act it 
 shall not be lawful to employ any part of the army of the United 
 States as a posse comitatus, or otherwise for the purpose of exe- 
 cuting the laws, except in such cases and under such circum- 
 stances as such employment of said force may be expressly 
 authorized by the Constitution or by Act of Congress." 12 Under 
 this act, it seems that aid of the army cannot be obtained by a 
 marshal unless the President shall employ it to suppress insur- 
 rection after a proclamation commanding the insurgents to 
 
 6 In re Nagle, 39 Fed. R. 833; U. S. 10 Bnc. Abr., Sheriff (11). 
 R. S. § 788. » G Op. Att'y-Gcn. 466, 473. 
 
 7 U. s. R'. S. § 787. 12 Act of Juno IS, 1878, § 15 ; 20 St. at 
 
 8 U. S. R. S. § 788. L. 145; 1 Sup. U. S. R. S. 3G3. 
 
 9 Op. Att'y-Gen. 4G6, 4G9.
 
 502 ENFORCEMENT OF DECREES AND ORDERS. [CHAP. XXVL 
 
 disperse. 13 All writs of execution upon judgments or decrees 
 obtained in a Circuit or District Court, in any State which is 
 divided into two or more districts, may run and be executed in 
 any part of such State ; but must be issued from and made re- 
 turnable to the court wherein the judgment was obtained. 14 In 
 such a case, the writ may be executed, by the marshal of the 
 district from which it was issued, in the other district without 
 any independent writ being directed to him for that purpose. 15 
 All writs of execution upon judgments obtained for the use of 
 the United States, in any court thereof, in one State, may 
 run and be executed in any other State or in any Territoiy, 
 but must be issued from, and made returnable to, the court 
 wherein the judgment was obtained. 16 
 
 § 341. Contempts. — An attachment is the proper process to 
 compel obedience to a decree or order requiring the perform- 
 ance of a specific act other than the payment of money, 1 or to 
 punish a contempt of court. 2 It seems, that in districts held 
 in States where imprisonment for debt has been abolished, dis- 
 obedience to a decree or order for the payment of money cannot 
 be punished by attachment ; 3 unless the defaulting party is an 
 officer of the court, as an attorney, 4 or has bid in property at 
 a judicial sale; 5 or the motion is made by a master or the 
 clerk of the Supreme Court to compel payment of his fees. 6 
 The older cases both in the English Chancery and the Federal 
 courts hold that it is a contempt to criticise in the press the 
 conduct of the court, 7 and to publish anything which may create 
 prejudice against either party to a pending cause. 8 A case in 
 which punishment was inflicted by Judge Peck for a criticism 
 published upon one of his decisions led to his impeachment 
 trial before the Senate ; and although he was acquitted, a stat- 
 ute was enacted which materially diminished the powers of the 
 
 w 16 Op. Att'y-Gen. 162 ; U. S. R. S. 4 Jeffries v. Laurie, 27 Fed. R. 195 ; 
 
 §§ 5298, 5300. Re Pitman, 1 Curtis, 186 ; Bagley v. 
 
 14 U. S. R. S. § 985. See pp. 58-63. Yates, 3 McLean, 465 ; The Laurens, 1 
 
 15 Prevost v. Gorrell, 5 W. N. C. (Pa.) Abb. Adm. 508; Re Paschal, 10 Wall. 
 151. 483; U. S. v. Mann, 2 Brock. 9. 
 
 « U. S. R. S. § 986. 5 Camden v. Mayhew, 129 U. S. 73. 
 
 § 341. > Rule 8; Mallory Manuf. Co. 6 Rule 82; Supreme Court Rule 10. 
 
 v. Fox, 20 Fed. R. 409. 7 See the language of Lord Chancellor 
 
 2 U. S. R. S. § 725 ; Re Chiles, 22 Wall. Hardwicke in 2 Atk. 469, 471. Hollings- 
 157. worth v. Duane, Wall. C. C. 77, 100; 
 
 3 Mallory Manuf. Co. v. Fox, 20 Fed. U. S. v. Dunne, Wall. C. C. 102. 
 R. 409. 8 2 Atk. 469. 

 
 § 341.] CONTEMPTS. 503 
 
 Federal courts to punish for contempt. 9 The courts of the 
 United States have power " to punish by fine or imprisonment, 
 at the discretion of the court, contempts of their authority : 
 Provided, That such power to punish contempts shall not be 
 construed to extend to any cases except the misbehavior of any 
 person in their presence, or so near thereto as to obstruct the 
 administration of justice, the misbehavior of any of the of- 
 ficers of said courts in their official transactions, and the dis- 
 obedience or resistance by any such officer, or by any party, 
 juror, witness, or other persons, to any lawful writ, process, or- 
 der, rule, decree, or command of the said courts." 10 Beyond this 
 the Circuit and District Courts have no such power. 11 The act, 
 just quoted in terms applies to all courts. Whether it can be 
 held to limit the authority of the Supreme Court, which derives 
 its existence and powers from the Constitution, is doubtful. 12 
 Misbehavior of a person in the presence of the court may consist 
 in an assault, 13 or in abusive language addressed to the court 14 
 or one of its officers 15 or any person there. 16 Similar conduct in 
 an anteroom of the court or so near the court-room as to be heard 
 therein is also punishable as a contempt. 17 It has been said to be 
 a contempt for an attorney to carry a pistol into court. 18 A hear- 
 ing before a master in chancery or examiner is, for this purpose, 
 treated as a proceeding in court. 19 The cases affecting receivers 
 have been cited in the chapter on Receivers. 20 Proceedings before 
 a grand jury are considered to be in the presence of the court ; 21 
 and an attempt in the hall adjoining the room where a grand 
 jury is in session to bribe a witness summoned before it is a con- 
 tempt of court. 22 It has been held in Ohio, under a statute simi- 
 lar to that limiting the powers of the Federal courts to punish 
 for contempts, that the publication of charges of misconduct 
 against a judge holding court, in a newspaper which the writer 
 
 9 U. S. R. S. § 725. 16 Ex parte Terry, 128 U. S. 289 ; In re 
 
 M U. S. R. S. § 725. Terry, 36 Fed. R. 419. 
 
 11 Ex parte Robinson, 19 Wall. 505, J 6 u. S. v. Emerson, 4 Cranch C. C. 188; 
 510. U. S. v. Carter, 3 Cranch C. C. 423. 
 
 12 Mr. Justice Field in Ex parte Robin- 17 U. S. v. Emerson, 4 Cranch C. C. 
 son, 19 Wall. 505, 510. 188. 
 
 w Sharon v. Hill, 24 Fed. R. 726; Ex " Sharon v. Hill, 24 Fed. R. 726. 
 
 parte Terry, 128 U. S. 289 ; In re Terry, 19 Sharon v. Hill, 24 Fed. R. 726. 
 
 36 Fed. R. 419; U. S. v. Patterson, 26 20 See § 249. 
 
 Fed. R. 509. «i Savin, Petitioner, 131 U. S. 267. 
 
 " Ex parte Terry, 128 U. S. 289; In re 22 Savin, Petitioner, 131 U. S. 267. 
 Terry, 36 Fed. R. 419.
 
 504 ENFORCEMENT OF DECREES AND ORDERS. [CHAP. XXVI. 
 
 had reason to believe would be circulated and read in the court- 
 room, and which was thus circulated and read, is " misbehavior 
 in the presence of or so near the court or judge as to obstruct 
 the administration of court or justice." 23 It is not a contempt to 
 serve a suitor with a summons while he is in attendance on a 
 term of court, provided he is not served in the court's presence. 24 
 An officer of the court may be punished by attachment for his 
 misbehavior in office after his term of office has expired by res- 
 ignation or otherwise. 25 An attorney 26 or other officer 27 of the 
 court may be thus compelled to pay to a person named in the 
 order money received by him in his official capacity. Where, 
 however, there is room for a reasonable doubt as to how much 
 is due from the officer, the court will usually refuse to proceed 
 against him summarily, and require the complaining party to 
 begin a suit. 28 A juror has been punished for contempt because 
 he had talked about the case in violation of the court's direction 
 to the contrary. 29 It has been held that a person enjoined from 
 the infringement of a patent is in contempt if he contributes to 
 a fund to defray the expenses of another who is contesting the 
 validity of the patent. 30 It has been said to be a contempt of 
 court to bring before it a collusive suit. 31 A person is not re- 
 lieved from punishment for contempt because he acted in good 
 faith under the advice of counsel that he was not infringing 
 the court's order. 32 If however, the question as to whether 
 he is in contempt is doubtful, the court will not punish him. 33 
 A corporation, as well as an individual, may be fined for a 
 contempt. 34 
 
 § 342. Notice of Application for Attachment. — The rules pro- 
 vide that if a decree be for the performance of a specific act, 
 other than the payment of money, it must prescribe the time 
 within which the act shall be done, " of which the defendant 
 
 23 Myers v. State, 21 Weekly Law 2J Be May, 1 Fed. R. 737; U. S. v. De- 
 Bulletin, 404. vanghan, 3 Cranch C. C. 84. 
 
 24 Blighty. Fisher, Peters'Circuit Court 30 Bate Refrigerating Co. v. Gillett, 
 Reports, 41. 30 Fed. R. 683. 
 
 25 The Laurens, 1 Ahh. Arlm. 508. 31 Lord v. Veazie, 8 How. 251 ; Cleve- 
 
 26 In re Paschal, 10 Wall. 483 ; Jeffries land v. Chamberlain, 1 Black, 419. 
 
 v. Laurie, 27 Fed. R. 195. 32 Atlantic Giant Powder Co. v. Ditt- 
 
 W Re Pitman, 1 Curt. 186; Bagley v. man Powder Manuf. Co., 9 Fed. R. 316. 
 
 Yates, 3 McLean, 465; The Laurens, 1 33 California Paving Co. v. Molitor, 
 
 Abb. Adm. 508. 113 U. S. 609. 
 23 See Tn re Paschal, 10 Wall. 483, 34 U. S. v. Memphis & L. R. R Co., 
 
 U. S. v. Mann, 2 Brock. 9. Fed. R. 237.
 
 § 343.] HEAEING UPON APPLICATIONS FOR ATTACHMENTS. 505 
 
 shall be bound without further service to take notice ; " 1 and that, 
 " except in cases where personal or other notice is specially re- 
 quired or directed,'' an entry of an order in the order-book is suf- 
 ficient notice thereof to the parties to the suit. 2 It is, however, 
 the safer practice, if not indispensable, to make personal service 
 of a certified copy of a decree or order, disobedience to which it 
 is desired to punish by an attachment. 3 In case of disobedience 
 to a decree for the performance of a specific act, other than the 
 payment of money, the rules direct the issue of an attachment 
 ex parte by the clerk, upon the filing of an affidavit that the act 
 has not been performed within the required time. 4 It is, however, 
 the usual practice to give notice to the delinquent, either by an 
 order to show cause or otherwise, of an application for an attach- 
 ment. 5 An attachment may be issued at the request of a person 
 not a party to the cause in whose favor an order has been made, 
 or against a person not a party to the cause against whom 
 obedience to an order can be enforced. 6 Notice of the applica- 
 tion, when required, must be served personally upon the person 
 thereby affected. 7 
 
 § 343. Hearing upon Applications for Attachments. — When 
 the contempt was committed in the presence of the court, no no- 
 tice nor trial of any disputed question of fact is necessary. 1 It 
 has been held at circuit that in any other case, at least when an 
 attachment has been issued, a person charged with contempt may 
 demand that interrogatories be filed concerning the facts which, 
 it is claimed, constitute his offence ; and that, if he denies the facts 
 charged under oath, he cannot be punished, — the only remedy 
 being an indictment against him for perjury: 2 but a recent de- 
 cision of the Supreme Court seems contrary to these rulings. 3 
 He cannot be compelled to answer interrogatories. 4 Otherwise, 
 when at the argument of the motion for an attachment the party 
 
 § 342. J Rule 8. 7 Gray v. Chicago, I. & N. R. R. Co., 1 
 
 2 ft u i e 4. Woolw. 63 ; Hollingsworth v. Duane, 
 
 3 In re Cary, 10 Fed. R. G22 ; Tn re Wall. C. C 141. 
 
 Lloyd, 10 Beav. 451. But see Re Feeny, § 343. » Ex parte Terry, 128 U. S.289; 
 
 1 Hask. 301 ; s. c. 4 N. B. 11. [70] 233; In re Terry, 36 Fed. R. 419. 
 
 Skip v. Harwood, 3 Atk. 564 ; Hearn v. 2 U. S. v. Dodge, 2 Gall. 313 ; Ilollings- 
 
 Tenant, 14 Ves. 136 ; People v. Brower, worth v. Duane, Wall. C. C. 77. See 
 
 4 Paige (N. Y.), 405. U. S. v. Duane, Wall. C. C. 102. 
 
 * Rule 8. 3 Savin, Petitioner. 131 U. S. 2(57. 
 
 6 Worcester v. Truman, 1 McLean, 4 Hollingsworth v. Duane, Wall. C. 
 
 483; Fischer v. Hayes, 6 Fed. R. 63. C. 77. See U. S. v. Duane, Wall. C. C 
 
 fi Rule 10. 102.
 
 506 ENFORCEMENT OF DECREES AND ORDERS. [CHAP. XXVI. 
 
 accused of disobedience denies the charge ; the court may either 
 determine the disputed question of fact upon such affidavits as 
 are then presented to it, or refer the question to a master. 5 If 
 the court find the charge proved, or the master so report and his 
 report be confirmed ; the court may then punish the offender by 
 fine or imprisonment, and if a fine be imposed direct him " to stand 
 committed till it be paid." 6 The court may make a preliminary 
 order directing that he be fined ; determining the principles with 
 regard to which the amount of the fine should be estimated ; and 
 directing either the submission of the amount to the court upon 
 affidavits, or a reference to a master for that purpose.' In these 
 cases the writ of attachment does not issue till after the final 
 order. " In proceedings in equity between parties to a suit for 
 contempt in not obeying the process of the court, or any order or 
 decree in the cause, the proceedings on the attachment may be, and 
 usually are, entitled as in the original suit, though it is not irregu- 
 lar to entitle them in the name of The People, on the relation of 
 the person prosecuting the attachment against the defendant or 
 party proceeded against. Where the attachment proceeding for 
 a contempt is against a witness, or a person not a part}' to the 
 suit, the practice is to entitle the order for attachment, and all 
 subsequent proceedings thereon, in the name of The People, on 
 the relation, &c. " 8 
 
 § 344. Order of Commitment. — It is better practice for the 
 order committing a person for contempt to recite the offence 
 charged, although it seems that this is not necessary if it describes 
 the same by reference to other proceedings. 1 It has been said 
 that an order committing a person for contempt cannot be altered 
 at a subsequent term of the court ; 2 that the court cannot subse- 
 quently discharge the party committed upon proof of his inability 
 to comply with the order, his remedy being an application to the 
 President for a pardon ; 3 and that such an order is void if it does 
 not express or limit the term of imprisonment. 4 No appeal will 
 
 5 Fischer v. Hayes, 6 Fed. R. 63. v. Memphis & Little Rock R. R .Co., 6 
 
 6 Fischer v. Hayes, 6 Fed. R. 63; U. Fed. R. 237. But see U. S. v. Wayne, 
 S. R. S. §725. Wall. C. C. 134. 
 
 » Fischer v. Hayes, 6 Fed. R. 63. § 344. » Fischer v. Hayes, 6 Fed. R. 63. 
 
 8 Judge, now Mr. Justice, Blatchford 2 Fischer v. Hayes, 6 Fed. R. 63. 
 
 in Fischer v. Hayes, 6 Fed. R. 63. See 3 Re Mullee, 7 Blatchf. 23. 
 
 also The People i'. Craft, 7 Paige (N.Y.), * Matter of Marsh, MacArth. & M. 
 
 325; Stafford v. Brown, 4 Paige (N. Y.), (D. C.) 32. 
 360 ; U. S. ex rel. Southern Express Co. 

 
 § 346.] EXECUTION OF WEIT OF ATTACHMENT. 507 
 
 lie from an order committing a person for contempt. 5 If such an 
 order is void, the prisoner may be discharged on habeas corpus* 
 Upon an appeal from the final decree so much of an order fining 
 a party for contempt as gave indemnity to his antagonist may be 
 reviewed ; 7 but not so much of the fine as was imposed solely 
 by way of punishment to vindicate the dignity of the court. 8 
 
 § 345. Writ of Attachment — An attachment is a writ directed 
 to the marshal of the court, sealed and bearing teste in the same 
 manner as a writ of subpoena, 1 directing him to attach the body 
 of the person named therein, and to safely keep the same, so that 
 he can produce the person or persons thus attached in court at a 
 certain day termed the return day of the writ, or until the further 
 order of the court. 2 The writ must be indorsed with the specific 
 reason for which it is issued, and also with the name and address 
 of the solicitor of the party issuing it. 3 The writ may be issued 
 either in vacation or in term ; and may be returnable immedi- 
 ately ; provided, at least, that the party against whom it is issued 
 then dwells or is within twenty miles of the place of holding the 
 court. Otherwise, a period of fifteen days between the teste and 
 the return might be required. 4 
 
 § 346. Execution of Writ of Attachment. — The first thing to 
 be done after the writ has been issued is to deliver it to the 
 marshal to whom it is directed, or to one of his deputies author- 
 ized by him to receive such writs. 1 Although the writ is always 
 directed to the marshal of the judicial district within which it is to 
 be executed, 2 it is usually executed by one of his deputies. The 
 marshal and his deputy can only execute the writ within the 
 district for which he has been appointed ; 3 and not then against 
 a person who has been brought there by force or fraud, or under 
 such circumstances as would make it improper to serve a sub- 
 poena upon him 4 ; and probably not upon Sunday, 5 nor usually 
 
 6 Hayes v. Fischer, 102 U. S. 121. § 346. i U. S. R. S. § 787. 
 8 Ex parte Fisk, 113 U. S. 713; Ex 2 u. S. R. S. § 787. 
 
 parte Terry, 128 U. S. 289. 3 tj. S . R. S. § 787 ; In the Matter of 
 
 7 Worden v. Searls, 121 U. S. 14, 26. Allen, 13 Blatchf. 271 ; Voss v. Luke, 1 
 
 8 New Orleans v. Steamship Co., 20 Cranch C. C. 331 ; Sominerville v. French, 
 Wall. 387. 1 Cranch C. C. 474. 
 
 § 345. i See U. S. R. S. § 911. * In the Matter of Allen, 13 Blatchf. 
 
 2 Braithwaite's Pr. 159-161. 271 ; and see authorities cited under §§ 98, 
 
 8 Braithwaite's Pr. 159. . 277. 
 
 « Acts of 11 Geo. IV. & 1 Wm. IV. & 2 9 Car. II. eh. 12. § 6 ; and see 
 
 c. 36, § 15, note 3. authorities cited under § 'A.
 
 508 ENFOECEMENT OF DECREES AND ORDERS. [CHAP. XXVI. 
 
 in the court-room. 6 If a writ is to be executed in a different 
 district from that within which the court issuing it is situated, 
 it should be directed to the marshal of that district. 7 It seems 
 that this can only be done, when the writ issues to attach, for 
 disobedience to a subpoena, a witness who lives within a hundred 
 miles of the place of holding the court. 8 If the delinquent be 
 already in custody, either upon criminal sentence or civil process, 
 no further arrest is necessary ; but the marshal should give no- 
 tice of the attachment, which notice is called a detainer, to the 
 keeper or jailer in whose custody he is. 9 If a return day be ap- 
 pointed in a writ and it be issued to enforce obedience to an 
 interlocutory order, the marshal may, but is not obliged to allow 
 the delinquent to go at large with or without security for his 
 surrender to him upon the return day. 10 If the delinquent do 
 not then surrender himself to the marshal's custody, the latter 
 and his bondsmen are responsible for all damages, which the 
 court shall determine have resulted therefrom to the party at 
 whose instance the writ was issued. 11 It seems, however, that 
 this cannot be done when the writ is issued for a refusal to per- 
 form a specific act in obedience to a decree. 12 According to an 
 old writer, it seems that when the marshal " has taken up the 
 body he has paid obedience to the writ, though he does not ac- 
 tually bring him up to the court; because the contempt only 
 induces a commitment, which is satisfied by imprisonment in 
 the county gaol." 13 If, however, he be specially ordered so to 
 do, of course he must obey. Upon the return day of the writ, 
 the marshal should make a return thereto. He cannot detain 
 the party named in the writ after the return day, unless by the 
 court's order. 14 There are three ordinary returns upon a writ 
 of attachment: first, if the delinquent cannot be arrested, the 
 marshal returns, " The within-named John Stiles is not found in 
 my bailiwick," — this is termed a non est inventus, and upon it 
 
 G United States v. Seholfield, 1 Cranch 10 Morris v. Hayward, G Taunton, 569 ; 
 
 C. C 130; Davis ». Sherron, 1 Cranch Studd v. Acton, 1 H. Blackstone, 468. 
 
 C. C. 287. n Moore v. Moore, 25 Beav. 8 ; U. S. 
 
 1 Voss v. Luke, 1 Cranch C. C. 331; R. S. §§ 783-786. 
 
 Sommerville v. French, 1 Cranch C. C. 12 Rule 8 ; Cowdray v. Cross, 24 Beav. 
 
 474. 445. 
 
 8 Henry v. Ricketts, 1 Cranch C. C. 13 Gilbert's Chan. 83. 
 
 580. But see Voss v. Luke, 1 Cranch 14 Ex parte Eurford, 1 Cranch C. C 
 C C 331. 456. 
 
 9 Trotter v. Trotter, Jacob, 533.
 
 § 347.] SEQUESTRATION. 509 
 
 further process of contempt is grounded; — second, if the delin- 
 quent has been arrested, but the marshal lias either accepted 
 bail for his appearance or keeps him in his own custody, the re- 
 turn is, " I have attached the within-named John Stiles, as with- 
 in I am commanded, whose body I have ready," — this is called 
 accept corpus; — third, if the marshal has arrested the delinquent 
 and lodged him in jail, or, finding him there has lodged a de- 
 tainer against him, the marshal returns, " I have attached the 
 within-named John Stiles, whose body remains in " (naming the 
 jail or prison) "in my custody." 15 Although the return is regu- 
 larly made by the marshal, no matter by whom the writ has 
 been executed, it will not be void if made by his deputy. 10 If 
 the marshal refuse to make any return he may be compelled to 
 do so, by means of an order to show cause followed by an 
 attachment against himself. 17 When the marshal or his deputy 
 is a party to a cause, or probably when a writ of attachment is 
 issued against either of them, the writs and precepts therein 
 must be directed to such disinterested person as the court or 
 any justice or judge thereof may appoint, and the person so 
 appointed may execute and return them. 18 In such a case the 
 person serving the process should make affidavit thereof. 19 
 
 § 347. Sequestration. — The process of sequestration is a writ 
 or commission issuing under the seal of the court, directed either 
 to the marshal or to certain persons of the plaintiffs nomination, 
 empowering him or them to enter upon and sequester the real 
 and personal estate of a defendant (or some particular parcel of 
 his lands), and to take, receive, and sequester the rents, issues, 
 and profits thereof, and keep the same in their hands, or pay the 
 same in such manner and to such persons as the court shall in 
 its discretion appoint, until such defendant shall have performed 
 some matter, previously ordered by the court, in the process 
 specifically mentioned, for not doing whereof he is in contempt. 1 
 This is one of the oldest writs of the court of chancery, and 
 has been the cause of many conflicts between the English chan- 
 cellors and the courts of common law. 2 Much curious history and 
 
 is Braithwaite's Pr. 272, 281. §347. i Hindc's Ch. Pr. 127; Hoff- 
 
 1(i Spafford t>. Goodell, 3 McLean, 97. man's Ch. Pr. ch. iii. § 10; Darnell's Ch. 
 
 17 United States t'. Scroggins, 3 Woods, Pr., ch. xxv. § 7. 
 
 629 ; Danrell's Ch. Pr. 470. 2 Gilbert's Forum Romanum, 78; Dan- 
 
 18 U. S. R. S. § 923 ; Rule 15. fell's Ch. Pr., ch. xxv. § 7. 
 
 19 Rule 15.
 
 510 ENFORCEMENT OF DECREES AND ORDERS. [CHAP. XXVI. 
 
 learning upon the subject invite the attention of the antiquarian; 
 but as it is now rarely used, little space will be devoted to it in 
 this work. By the Equity Rules, whenever the marshal has re- 
 turned non est inventus under a writ of attachment, a writ of 
 sequestration may issue to compel obedience to a decree or order 
 of the court. 3 The writ, when not issued to the marshal, appoints 
 two or more sequestrators. 4 The usual number is four. 5 The 
 sequestrators are officers of the court, and as such are subject to 
 new directions during their discharge of their functions, 6 may be 
 attached for disobedience or misconduct, 7 and, if resistance be 
 made to them, may be aided by the court with the exercise of 
 its process of contempt, 8 or by a writ of assistance. 9 Sequestra- 
 tors must from time to time account for what comes into their 
 hands, and pay into court such money as they receive. 10 
 
 § 348. Writ of Assistance. — The Equity Rules provide that 
 " when any decree or order is for the delivery of possession, 
 upon proof made by affidavit of a demand and refusal to obey 
 the decree or order, the party prosecuting the same shall be 
 entitled to a writ of assistance from the clerk of the court." l 
 This is a writ commanding the marshal to eject the defendant 
 from the land and put the plaintiff in possession ; and is exe- 
 cuted in the same manner as a writ of habere facias possessionem 
 is executed in favor of a successful plaintiff in the action of eject- 
 ment; 2 "in the execution of which the sheriff may take with 
 him the posse comitatus, or power of the county, and may justify 
 breaking open doors, if the possession be not quietly delivered. 
 But, if it be peaceably yielded up, the delivery of a twig, a turf, 
 or the ring of the door in the name of seisin, is sufficient execu- 
 tion of the writ." 3 This writ is often used to put into possession 
 receivers 4 and sequestrators. 5 It is not issued without an order 
 
 3 Rules 7 and 8. 9 Lord Pelham v. Duchess of New- 
 
 * Hoffman's Cli. Pr., ch. iii. § 10 ; castle, 3 Swanst 289, n ; Rule 9. 
 
 Daniell's Ch. Pr., ch. xxv. § 5. 10 Howell v. Lord Coningsby, 1 Fowl. 
 
 6 Daniell's Ch. Pr., chapter xxv. sec- Ex. Pr. 161; Desbrow v. Crommie, Bunb. 
 tion 5. 272. 
 
 e Hinde's Ch. Pr. 138 ; Daniell's Ch. § 348. i Rule 9. 
 Pr., ch. xxv. § 7 ; Hoffman's Ch. Pr., ch. 2 Hunter's Suit in Equity (6th ed.), 
 
 iii. § 10. 168. 
 
 7 Lord Pelham v. Lord Harley, 3 3 Bl. Com. 412. 
 
 Swanst. 291, n. * Sharp v. Carter, 3 P. Wms. 375, 
 
 8 Angel v. Smith, 9 Ves. 336 ; Lord 379, n ; Seton on Decrees (4th ed.), 441, 
 Pelham v. Duchess of Newcastle, 3 1563. 
 
 Swanst. 293, n ; Rule 9. 6 Lord Pelham v. Duchess of New- 

 
 § 349.] ACTION BY COUKT ITSELF. 511 
 
 for that purpose. 6 It cannot issue against any but a party to 
 the suit, or his representative, or one who came into possession 
 under hirn since the suit was begun. 7 
 
 § 349. Action by Court itself. — In the year 1830, an act was 
 passed in England, at the instance of Sir Edward Sugden, the 
 author of Sugden on Powers, afterwards Lord St. Leonards, 
 providing : " That when any person shall have been directed by 
 any decree or order, to execute any deed or other instrument, or 
 make a surrender or transfer, or to levy a fine or suffer a recov- 
 ery, and shall have refused or neglected to execute, make or 
 transfer, or levy or suffer the same, and shall have been com- 
 mitted to prison under process for such contempt, or, being con- 
 fined in prison for any other cause shall have been charged with 
 or detained under process for such contempt, and shall remain in 
 such prison, the court may, upon motion or petition, and upon 
 affidavit that such person has after the expiration of two cal- 
 endar months from the time of his being committed under or 
 charged with, or detained under such process, again refuse to 
 execute such deed or instrument or make such surrender or 
 transfer, or levy or suffer such fine or recovery, order or appoint 
 one of the masters in ordinary, or if the act is to be done out of 
 London, then, if necessary one of the masters extraordinary, to 
 execute such deed or other instrument or to make such sur- 
 render or transfer, for and in the name of such person, and to 
 levy such fine or suffer such recovery, in his name, and to do all 
 acts necessary to give validity and operation to such fine and 
 recovery, and to lead or declare the uses thereof; and the execu- 
 tion of the said deed or other instrument, and the surrender or 
 transfer made by the said master, and the fine or recovery levied 
 or suffered by him, shall in all respects have the same force and 
 validity as if the same had been executed or made, levied or 
 suffered, by the party himself; and within ten days after the 
 execution or making of any such deed or other instrument or sur- 
 render or transfer, or levying or suffering such fine or recovery, 
 notice thereof shall be given by the adverse solicitor to the party 
 in whose name the same is executed or made ; and such party, 
 as soon as the deed or other instrument or surrender, transfer, 
 
 castle. .3 Swanst. 289, n; Seton on De- 7 Terrell v. Allison, 21 Wall 280; IIow- 
 8rees (4th ed.), 1562. ard v. Railway Co., 101 U. S. 837,849; 
 
 6 Seton on Decrees (4th ed.) 1562. Thompson v. Smith, 1 Dill. 458.
 
 512 ENFORCEMENT OF DECREES AND ORDERS. [CHAP. XXVI. 
 
 fine or recovery, shall be executed, made, levied or suffered, 
 shall be considered as having cleared his contempt, except as 
 far as regards the payment of the costs of the contempt, and 
 shall be entitled to be discharged therefrom, under any of the 
 provisions of this act applicable to his case ; and the court shall 
 make such order as shall be just, touching the payment of the 
 costs, of or attending any such deed, surrender, instrument, 
 transfer, fine or recovery." : " That where a person shall be 
 committed for a contempt in not delivering to any person or 
 persons or depositing in court or elsewhere, as by any order may 
 be directed, books, papers, or any other articles or things, any 
 sequestrator or sequestrators appointed under any commission of 
 sequestration shall have the same power to seize and take such 
 books, papers, writings, or other articles or things, being in the 
 custody or power of the person against whom the sequestration 
 issues, as they would over his own property; and thereupon 
 such articles or things so seized and taken shall be dealt with 
 by the court as shall be just ; and after such seizure it shall be 
 lawful for the court, upon the application of the prisoner, or of 
 any other person in the cause or matter, or upon any report to 
 be made in pursuance of this act, to make such order for the 
 discharge of the prisoner, upon such terms, and, if it shall see 
 fit, making any costs to the cause, as to the court shall seem 
 proper." 2 How far these acts will be followed by the Federal 
 courts is a matter for future decision. 3 
 
 § 319. ! Acts of 1 Wm. IV. ch. 36, 8 See Rule 90 ; Shepherd v. Comm'rs 
 § 15, R. 15, passed in 1830. of Ross County, 7 Ohio, 271. 
 
 2 Act of 1 Wm. IV. ch. 36, § 15, R. 1G.
 
 § 351.] AMENDMENT UPON PETITION WITHOUT A REHEARING. 513 
 
 CHAPTER XXVII. 
 
 CORRECTION OF DECREE OTHERWISE THAN BY APPEAL. 
 
 § 350. Correction of Decrees in General. — When a party to a 
 suit in equity, or his representative, feels himself aggrieved by a 
 final decree of the court, there are eight ways in which he can 
 apply to have such decree reversed, set aside, or varied : by peti- 
 tion for a mere clerical or accidental error, 1 by a petition for a 
 rehearing, 2 by a bill of review, 3 by a bill in the nature of a bill 
 of review, 4 by a supplemental bill in the nature of a bill of re- 
 view, 5 by a bill to set aside a decree on account of fraud, mis- 
 take, accident, or surprise, 6 by a bill to suspend or avoid the 
 operation of a decree, 7 and by an appeal. 8 An interlocutory 
 decree can be corrected at the entry of the final decree. 9 
 
 § 351. Amendment upon Petition •without a Rehearing. — The 
 rules provide that " clerical mistakes in decrees or decretal or- 
 ders, or errors arising from any accidental slip or omission, may, 
 at any time before an actual enrolment thereof, be corrected 
 by order of the court or a judge thereof, upon petition, without 
 the form or expense of a rehearing." 1 Decretal orders may be 
 corrected in the same manner. 2 In this way, corrections have 
 been permitted of errors in the title of a decree or order ; 3 of an 
 omission in a decree for specific performance of a direction to set- 
 tle the conveyance, 4 or of a reference as to title ; 5 of an omission 
 in a decree in a creditor's suit of a direction to take the accounts 
 of the personal estate ; 6 and of other defects or redundancies in 
 respect to which a decree did not conform to the directions of the 
 
 § 350. 1 § 351. § 351. ! Rule 85. Sue Witters v. Sowlcs, 
 
 2 § 352. 32 Fed. R. 130 ; Hop Bitters Manuf. Co. 
 
 8 §§ 354-356. r. Warner, 28 Fed. R. 577. 
 
 4 § 357. 2 Union Sugar Refinery v. Mathiesson, 
 
 6 § 353. 3 Cliff. 146. 
 
 6 § 358. 3 Spearing v. Lynn, 2 Vern. 370. 
 
 T §359. * Trevelyan v. Charter, Beav. 140. 
 
 8 Chapter XXX. 6 Hughes v. Jones, 26 Beav. 21. 
 
 9 Henry ?•. Travelers' Ins. Co., 34 Fed. e Pickard v. Mattheson, 7 Ves. 293. 
 R. 258; Clark v. Blair, 14 Fed. R. 812. 
 
 33
 
 514 CORRECTION OF DECREE. [CHAP. XXVII. 
 
 written opinion of the court. 7 An order or decree entered by 
 consent cannot be varied or modified in a material part without 
 the assent of all the parties to the same ; but the court, it seems, 
 may give such further directions as are necessary to carry it 
 "into effect, according to its spirit and intent." 8 The former 
 English practice occasionally though rarely allowed similar cor- 
 rections in what were manifestly mere clerical errors after a de- 
 cree had been enrolled; 9 and in one case in the Federal courts, it 
 has been said that an error in calculating the amount ordered by 
 the decree to be paid may be corrected after enrolment, upon 
 motion or petition, by entering a credit as for its payment. 10 
 
 § 352. Petitions for a Rehearing. — A petition for a rehearing 
 is the proper method of correcting before enrolment errors in a 
 decree which are not evidently clerical or accidental. A petition 
 for a rehearing could formerly in England have only been made 
 to a judge before whom the cause was heard, or to the Lord 
 Chancellor. 1 In the Federal courts a petition for a rehearing will 
 usually be entertained only by the judge or justice before whom 
 the cause was heard. 2 The rules provide that " No rehearing 
 shall be granted after the term at which the final decree of the 
 court shall have been entered and recorded, if an appeal lies to 
 the Supreme Court. But if no appeal lies, the petition may be 
 admitted at any time before the end of the next term of the court, 
 in the discretion of the court." 3 If, however, a petition has been 
 filed within the time prescribed by the rules, it seems that it may 
 be granted at any time subsequently. 4 A rehearing in England 
 was formerly allowed almost as of course, upon the filing of a pe- 
 
 7 Gage v. Kellogg, 26 Fed. R. 242; 134; Yow v. Townsend, 1 Dickens, 59; 
 Rogers v. Eiessner, 34 Fed. R. 270 ; Tufts Attorney-General v. Greenhill, 34 Beav. 
 t;. Tufts, 3 W. & M. 429; Pferaschmidt 174; Beekman v. Peck, 3 J. Ch. (N. Y.) 
 v. Kelly Mercantile Co., 32 Fed. R. 6G7 ; 415 ; Clark v. Hall, 7 Paige (N. Y.), 382 ; 
 Witters v. Sowles, 32 Fed. R. 765; Burd- Thompson v. Goulding, 5 Allen (Mass.), 
 sail v. Curran, 31 Fed. R. 918 ; Albany ;;. 81. 
 
 Steam Trap Co., 26 Fed. R. 318; Dor- 10 Massie v. Graham, 3 McLean, 41. 
 
 sheimer v. Rorback, 9 C. E. Green (N. J.), § 352. 1 Daniell's Ch. Pr. (5th Am. ed.) 
 
 33 ; Sprague v. Jones, 9 Paige (N. Y.), 1471. 
 
 395 ; Jarmon v. Wiswall, 9 C. E. Green 2 Giant Powder Co. v. California Vig- 
 
 (N. J.), 68. But see R'y Reg. Manuf. Co. orit Powder Co., 5 Fed. R. 197, 202. 
 
 p. No. Hudson Co. R. Co., 26 Fed. R. 3 Rule 88. See McMicken v. Perrin, 
 
 411. 18 How. 507. 
 
 8 Chancellor Walworth in Leitch v. * Mr. Justice Field in Giant Powder 
 Cumpston, 4 Paige (N. Y.), 476; Gage v. Co. v. California Vigorit Powder Co., 5 
 Kellogg, 26 Fed. R. 242 ; Rogers v. Riess- Fed. R. 197, 202. See Clarke v. Threlkeld, 
 ner, 34 Fed. R. 270. 2 Cranch C. C. 408. 
 
 9 Weston v. Haggerston, G. Cooper,
 
 § 351.] PETITIONS FOR A REHEARING. 515 
 
 tition signed by two counsel, of whom one at least must have 
 been concerned in the original hearing; the rule having been 
 stated by Lord Hardwicke, that "such credit is given by the 
 court to their opinion that the cause ought to be reheard, that 
 it will in general, order the cause to be set down" for that 
 purpose, as a matter of course. 5 This rule, however, has 
 not been adopted in the courts of the United States, where 
 a rehearing is discretionary with the judge to whom the ap- 
 plication is made. 6 Unless the judge acts of his own motion, a 
 rehearing will be granted only for errors of law apparent upon 
 the record and arising upon questions which were not argued at 
 the original hearing, or upon newly discovered evidence of such 
 a character that it would have authorized a new trial in an 
 action at law. 7 " A rehearing should not be granted for newly- 
 discovered evidence when the evidence could not have been ob- 
 tained by reasonable diligence on the first hearing, nor when it 
 is merely cumulative to that previously received, nor when, if 
 presented, it would not have changed the result." 8 "Anew 
 hearing should not be had simply to allow a rehash of old argu- 
 ments." 9 " If rehearings are to be had, until the counsel on both 
 sides are entirely satisfied, I fear, that suits would become im- 
 mortal, and the decision be postponed indefinitely." 10 A rehear- 
 ing can only take place for the purpose of altering a decree upon 
 grounds which existed at the time when the decree was pro- 
 nounced, and will not be allowed to remedy a grievance conse- 
 quent upon a decree resulting entirely from circumstances that 
 have occurred subsequent to its entry. 11 The rules provide that 
 " every petition for a rehearing shall contain the special matter 
 or cause on which such rehearing is applied for, shall be signed 
 
 5 Cunyngham v. Cunyngham, Ambler, orit Powder Co., 5 Fed. R. 197, 201 ; 
 89. See Attorney-General v. Brooke, 18 Jenkins v. Eldredge, 3 Story, 299; Tufts 
 Ves. 319, 325 ; East India Co. v. Boddam, r. Tufts, 3 W. & M. 426 ; Hicks v. Otto, 
 13 Ves. 421. 22 Blatchf. 122 ; Page v. Holmes Burglar 
 
 6 Mr. Justice Field in Giant Powder Alarm Telegraph Co., 2 Fed. R. 330; 
 Co. v. California Vigorit Powder Co., 6 and cases cited in the opinions in these 
 Fed. R. 97. cases. 
 
 7 Daniel v. Mitchell, 1 Story, 198; 9 Mr. Justice Field in Giant Powder 
 Jenkins v. Eldredge, 3 Story, 299 ; Emer- Co. v. California Vigorit Powder Co., 5 
 son «;. Davies, 1 W. & M. 21 ; Tufts v. Fed. R. 197, 201. 
 
 Tufts, 3 W. & M. 426; Giant Powder Co. 10 Mr. Justice Story in Jenkins v. El- 
 
 v. California Vigorit Powder Co., 5 Fed. dredge, 3 Story, 299, 305. 
 
 r. 1<i7. u Bowyer v. Bright, 13 Price, 316; 
 
 8 Giant Powder Co. v. California Vig- Hurlburd v. Frcelove, 3 Wis. 537.
 
 516 
 
 CORRECTION OF DECREE. 
 
 [CHAP. XXVII. 
 
 by counsel, and the facts therein stated, if not apparent on the 
 record, shall be verified by the oath of the party or by some other 
 person." 12 The allegations must be full, precise, and certain. 
 It seems that they will be insufficient if sworn to merely upon 
 information and belief. 13 It has been held that when evidence 
 of new facts not already in issue is to be given, the petition 
 should be accompanied by a supplemental bill in the nature of a 
 bill of review, pleading these facts ; in which case, if the petition 
 be granted, the hearing upon that bill will take place at the 
 same time as the rehearing of the original suit. 14 The usual pro- 
 ceedings to obtain a rehearing are for the party desiring it to 
 file his petition in the clerk's office, and then to procure an order 
 directing his opponent to show cause why his prayer should not 
 be granted. 15 The adverse party may then answer, controverting 
 or setting up new matter in avoidance of allegations in the peti- 
 tion ; or probably may show cause against granting the rehearing 
 on the return day of the order by an affidavit. 16 If there be any 
 irregularity in the petition, it may be taken off the file at the 
 respondent's motion. 17 Upon the return day of the order to 
 show cause, if no adjournment be had, the matter is argued be- 
 fore the judge, by whose direction the decree or order com- 
 plained of was made, unless he be absent, when the papers and 
 the briefs of counsel should be filed with the clerk, who will 
 mail them to him. 18 The petition will not be granted without 
 notice to the adverse parties, and an opportunity for their pres- 
 ence afforded them. 19 Upon a rehearing the cause or matter is 
 proceeded in as if it were heard for the first time. All depositions 
 taken before the original hearing, though not then used, may be 
 read, 20 and the plaintiff may withdraw from evidence any portion 
 of the answer read before. 21 No new evidence can be used, un- 
 less a supplemental bill has been filed ; ^ but exhibits not pre- 
 viously used may be produced ; ^ and if a witness has since the 
 
 12 Rule 88. 
 
 13 Page v. Holmes Burglar Alarm Tel- 
 egraph Co., 2 Fed. R. 330. 
 
 i* Baker v. Whiting, 1 Story, 218 ; 
 Perry v. Phelips, 17 Ves. 173, 178 ; Head 
 v. Godlee, Johns. 536, 579 ; Jopp v. Wood, 
 2 De G. J. & S. 323. 
 
 15 Giant Powder Co. v. California Vig- 
 orit Powder Co., 5 Fed. R. 197. 
 
 16 Giant Powder Co. v. California Vig- 
 orit Powder Co., 5 Fed. R. 197. 
 
 17 Wood v. Griffith, 1 Meriv. 35. 
 
 18 Giant Powder Co. v. California Vig- 
 orit Powder Co., 5 Fed. R. 197. 
 
 19 Giant Powder Co. v. California Vig- 
 orit Powder Co., 5 Fed. R. 197. 
 
 20 Cunyngham t\ Cunyngham, Ambler, 
 89,90. 
 
 2i Allfrey v. Allfrey, 1 Macn. & G. 87; 
 Ogle v. Morgan, 1 De G. M. & G. 359. 
 2:2 Jenkins v. Eldredge, 3 Story, 299. 
 23 Herring v. Clobery, Cr. & Ph. 251.
 
 § 353.] BILLS IN THE NATURE OF BILLS OF REVIEW. 517 
 
 former hearing been convicted of perjury, 24 or admitted receiving 
 a bribe to influence his testimony, 25 that may be proved to the 
 court. After one rehearing, a petition for another can only be 
 filed by special leave of the court, and may be taken off the file 
 if presented without such leave. 26 The grant or refusal, absolute 
 or conditional, of a rehearing rests in the discretion of the court 
 where the cause is first heard, and is not a subject of appeal. 27 
 
 § 353. Supplemental Bills in the nature of Bills of Review. — A 
 supplemental bill in the nature of a bill of review is a bill that 
 brings to the attention of the court new matter, which has arisen 
 or been discovered since, and could not by the exercise of due 
 diligence have been discovered before, the time for taking testi- 
 mony in a cause expired, and which the party filing the bill 
 alleges as a reason why a decree made and passed therein, but 
 not signed and enrolled, should be reversed or modified. 1 Such 
 a bill cannot be filed after a decree has been signed and en- 
 rolled. 2 The proper remedy in a similar case then is a bill of 
 review. 3 A supplemental bill in the nature of a bill of review 
 cannot be used to obtain a reversal or modification of a decree 
 for errors in law apparent upon its face. 4 That, before enrol- 
 ment, can only be done by means of a petition for a rehearing. 5 
 Matter of revivor and supplement may be incorporated in such a 
 supplemental bill. 6 An English chancery order made on the 
 17th of October, 1841, and which should probably be followed 
 here, the clerk taking the place of the registrar and five dol- 
 lars being reckoned as a pound sterling, provides : " That no 
 supplemental bill, or bill in the nature of a bill of review, 
 grounded upon new matter discovered, or pretended to be dis- 
 covered, since the pronouncing of any decree of this Court, in 
 order to the reversing or varying of such decree, shall be exhibi- 
 ted without the special leave of the Court first obtained for that 
 purpose, and unless the party exhibiting the same do first de- 
 posit with the registrar of this Court so much money, as together 
 with the deposit by the rules of this Court required to be made 
 
 24 Needham v. Smith, 2 Vern. 4fi3. 2 Ves. Sen. 596 ; Story's Eq. PI. §§ 422, 
 
 25 Needham v. Smith, 2 Vern. 463. 423. 
 
 26 Moss v. Baldock, 1 Thill. 118. 2 Beames' Orders, 1. 
 
 27 Gray, J., in Roemer v. Bernheim, a See §§ 354-356. 
 
 132 U. S. 103, 106. « Berry v. Phelips, 17 Ves. 173. 
 
 § 353. ! Perry v. Phelips, 17 Ves. 173; 6 See § 352. 
 
 Mitford's PI. ch. 1, § 2 ; Moore v. Moore, 6 Perry v. Phelips, 17 Ves. 176-178.
 
 518 CORRECTION OF DECREE. [CHAP. XXVII. 
 
 on obtaining a rehearing of the cause or causes wherein such 
 decree was pronounced, will make up the sum of 501., as a 
 pledge to answer such costs and damages as shall be awarded to 
 the adverse party, in case the Court shall think fit to award any 
 at the hearing of the cause on such supplemental or new bill." 7 
 A supplemental bill in the nature of a bill of review should state 
 the facts which it is desired to prove, and, if they had then 
 occurred, the reason why they were not discovered and given 
 in evidence before publication ; and it seems should state posi- 
 tively that the decree has not been enrolled, and not in the 
 alternative, praying one sort of relief as upon a bill of review, 
 if the decree has been enrolled, and if not enrolled, then to 
 have the benefit of it as upon a supplemental bill in the nature 
 of a bill of review. 8 Such a bill should conclude with a prayer 
 that the cause may be reheard. It should be signed by coun- 
 sel, and in other respects conform to the requirements of a bill of 
 review upon newly discovered facts. 9 Like that, it can only be 
 filed by leave of the court, which is obtained in the same way, 
 and upon the same grounds as that to file such a bill of review ; 10 
 and the proceedings upon the two kinds of bills are also substan- 
 tially the same. 11 But according to Lord Redesdale, " Bills in 
 the nature of bills of review do not appear subject to any pecu- 
 liar cause of demurrer, unless the decree sought to be reversed 
 does not affect the interest of the person filing the bill." 12 
 Laches may be a ground for refusing leave to file a supplemental 
 bill in the nature of a bill of review, unless such laches is exten- 
 uated by laches on the part of the defendant to it. 13 Such a 
 bill cannot be heard unless accompanied by a petition for a re- 
 hearing, when the rehearing of the original, and the hearing of 
 the supplemental cause will be set down together. 1 * 
 
 § 354. Bills of Review. — A bill of review is a bill filed to 
 reverse or modify a decree that has been signed and enrolled for 
 error in law apparent upon the face of such decree, or on account 
 of new facts discovered since publication was passed in the origi- 
 
 i Order of 17th October, 1741 ; Beames' " Story's Eq. PI. §§ 422-425. 
 
 Orders, 368. 12 Mitford's PI. ch. 1, § 3, pt. 3. 
 
 8 Story's Eq. PI. § 425. See the Ian- 13 Story's Eq. PI. §423; Sheffield Canal 
 guage of Lord Eldon in Perry v. Phelips, Co. v. Sheffield & R. Ry. Co., 1 Phillips, 
 17 Ves. 173-178. 484. 
 
 9 Story's Eq. PI. §§ 422, 425. 14 Moore v. Moore, 2 Ves. Sen. 596, 
 w Story's Eq. PI. § 422. 598 ; Perry v. Phelips, 17 Ves. 173.
 
 § 354] BILLS OF REVIEW. 519 
 
 nal cause, and which could not by the exercise of due diligence 
 have been discovered or used before the decree was made. 1 A 
 bill of review can only be filed to impeach a final, not to im- 
 peach an interlocutory decree. 2 For an interlocutory decree can 
 always be modified or reversed by the court without any bill 
 for that purpose. 3 But the expression " final decree " is here 
 used with the meaning given it when speaking of appeals. 4 The 
 errors of law for which a decree may be reversed or modified, 
 must be clearly apparent upon the record, that is, " only such 
 as arose upon the pleadings, proceedings, and decree, without 
 reference to the evidence in the cause ; " 5 as, for example, the 
 disregard of a statute, 6 or want of jurisdiction, 7 or the finding 
 of a fact contrary to an allegation in a defendant's answer when 
 no evidence was taken ; 8 not errors in drawing conclusions from 
 evidence, 9 nor errors in casting accounts, 10 nor it seems in matters 
 of abatement, 11 nor in the exercise of discretion, 12 nor matters of 
 form, 13 — among which, however, the omission of a clause giving 
 an infant defendant a day in which to show cause against a 
 decree is not included. 14 It has been held to be no sufficient 
 ground for a bill of review, that, since the decree, a State court 
 has given to the Constitution of the State a construction different 
 from that put upon it by the Federal court in its decree. 15 In 
 England, where the mandatory part of a decree was usually pre- 
 ceded by a statement of the facts upon which it was founded, 
 only the decree itself could be examined for such errors; 16 but 
 in the Federal courts where this custom does not exist, the whole 
 
 § 354. 1 Mitford's PI. ch. 1, § 3, pt. 3 ; <> Clark v. Killian, 103 U. S. 766. 
 
 Story's Eq. PI. §§ 403-420. 9 Whiting v. Bank of United States, 
 
 * Jenkins v. Eldredge, 3 Story, 299; 13 Pet. 6; Dexter v. Arnold, 5 Mason, 
 Story's Eq. PI. § 408 a. 303; Putnam i\ Day, 22 Wall. 60; Buf- 
 
 3 Story's Eq. PI. § 408 a. fington v. Harvey, 95 U. S. 99. 
 
 * Story's Eq. PI. § 408 a ; Whiting v. 1U Massie v. Graham, 3 McLean, 41 ; 
 Bank of United States, 13 Pet. 6, 15; Beame's Ord. 1 ; Story's Eq. PL § 405. 
 Ray v. Law, 3 Craneh, 179; Jenkins v. n Story's Eq. PI. §411; Hart well v. 
 Eldredge, 3 Story, 299. Townsend, 6 Bro. Pari. R. 107 ; Slingsby 
 
 s Mr. Justice Bradley in Buffington v. v. Hale, 1 Ch. Cas. 122. 
 
 Harvey, 95 U. S. 99. See also Whiting 12 Buffington v. Harvey, 95 U. S. 99. 
 
 v. Bank of United States, 13 Pet. 6; 13 Story's Eq. PI. § 411. 
 
 Putnam v. Day, 22 Wall. 60; Thompson M Story's Eq. PI. § 407 ; Perry v. Phe- 
 
 v. Maxwell, 95 U. S. 391. lips, 17 Ves. 173; Gregor v. Molesworth, 
 
 6 Story's Eq. PI. § 405; Gregor v. 2 Ves. Sen. 109. 
 
 Molesworth, t Ves. Sen. 109. 15 King t>. Dundee Mortgage & Tr. I. 
 
 ' Ketchum v. Farmers' L. & T. Co., Co., 28 Fed. R. 33. 
 
 4 McLean, 1. 16 Story's Eq. PI. § 407.
 
 520 CORRECTION OF DECREE. [CHAP. XXVII. 
 
 record except the evidence may be thus corrected. 17 Bills of re- 
 view for errors apparent upon the record can only be filed within 
 the time limited for an appeal. 18 After a decree has been 
 affirmed by the Supreme Court of the United States, it cannot 
 be reviewed for errors in law, at least not without the leave of 
 that court. 19 Leave of court is not needed to enable a party 
 to file a bill of review for errors apparent upon the face of the 
 record. 20 
 
 § 355. Provisions peculiar to Bills of Review for Matters of 
 Fact newly discovered. — Bills of review upon matters of fact 
 newly discovered can only be filed by express leave of the 
 court. 1 Leave should be obtained by a petition praying for 
 leave to file the bill, and supported by an affidavit showing 
 that the new matter, which it is desired to prove, was not 
 known to the petitioner, and could not have been discovered 
 by him with the exercise of due diligence, in time to prove it 
 before the entry of the decree sought to be reviewed. 2 It 
 seems that the affidavit must be positive and not merely upon 
 information and belief. 3 Previous knowledge of it by the peti- 
 tioner's attorney or other agent while acting in that capacity, is 
 equivalent to knowledge by the petitioner, and will be a reason 
 for refusing to allow him to file the bill. 4 If the newly dis- 
 covered facts are proved by documents that were under the 
 control of the petitioner, very good reasons for his not discover- 
 ing and producing them before must be shown in order to entitle 
 him to file a bill of review founded upon them. 5 The affidavit 
 should also state the nature of the new matter, and the evidence 
 desired to be given in its support, in order that the court may 
 judge of its relevancy and materiality. 6 It is said that the 
 
 " Whiting v. Bank of United States, Young v. Keighly, 16 Ves. 348 ; Purcell 
 
 13 Pet. 6 ; Buffington v. Harvey, 95 U. S. v. Miner, 4 Wall. 519; Dexter v. Arnold, 
 
 99 ; Clark v. Killian, 103 U. S. 766. 5 Mason, 303 ; Massie v. Graham, 3 Mc- 
 
 ™ Thomas v. Harvie's Heirs, 10 Wheat. Lean, 41 ; Ross v. Prentiss, 4 McLean, 
 
 146 ; Kennedy v. Georgia State Bank, 8 106 ; Story's Eq. PI. §§ 412, 413. 
 How. 586; Clark v. Killian, 103 U. S. 3 Page v. Holmes Burglar Alarm Tele- 
 
 766 ; Story's Eq. PL § 410. See also graph Co., 2 Fed. R. 330. 
 Massie v. Graham, 3 McLean, 41. 4 Norris v. Le Neve, 3 Atk. 26 ; Green- 
 
 19 Southard v. Russell, 16 How. 547 ; lee v. McDowell, 4 Ired. Eq. (S. C.) 481 ; 
 Story's Eq. PI. § 408. Story's Eq. PL §§ 413, 414. 
 
 2 Ross v. Prentiss, 4 McLean, 106. 5 Forum Romanum, 187. 
 
 § 355. • Anon., 2 P. Wms. 283; Perry 6 U. S. v. Sampeyreac, Hempst. 118; 
 
 v. Phelips, 17 Ves. 173 ; Ross v. Prentiss, Dexter v. Arnold, 5 Mason, 303 ; Mas- 
 
 4 McLean, 106 ; Story's Eq. PL § 412. sie v. Graham, 3 McLean, 41 ; Story's 
 
 2 Wortley v. Birkhead, 2 Ves. Sen. 571; Eq. PL § 412. 

 
 § 356.] PROVISIONS COMMON TO ALL BILLS OF REVIEW. 521 
 
 matter must be not only new, but material, and such as, if un- 
 answered in point of fact, would clearly entitle the plaintiff to a 
 decree, or would raise a question of so much nicety and difficulty 
 as to be a fit subject of judgment in the cause. 7 The new matter 
 may be concerning a point not in issue in the original cause, 8 
 provided that it be connected with the subject-matter of the 
 bill. 9 A bill of review will not lie on the ground of newly dis- 
 covered evidence which is merely cumulative, or goes to impeach 
 the character of witnesses. 10 It has been said that the matter 
 upon the discovery of which a bill of review is based, if previ- 
 ously known to the other party, must be of such a nature that 
 he was not in conscience obliged to have discovered it to the 
 court ; for if it was known to him and such as in conscience he 
 ought to have discovered, he obtained the decree by fraud, and 
 it ought to be set aside by an original bill. 11 The allowance of the 
 filing of such a bill of review is always in the discretion of the 
 court ; 12 and lapse of time since the discovery of the new matter 
 will always have great weight in inducing the court to look with 
 disfavor upon the application for leave to file such a bill of 
 review. 13 It has been said that if the decree impeached have 
 been affirmed by an appellate court, such a bill of review can 
 only be filed by leave of that court. 14 A bill of review for newly 
 discovered matter, if filed without leave, may upon motion be 
 dismissed or taken off the file. 15 
 
 § 356. Provisions common to all Bills of Review. — " To en- 
 title a person to bring a bill of review, it is necessary that he 
 should have obeyed or performed the decree ; as, if it be for 
 land, that the possession be yielded ; if it be for money, that 
 the money be paid ; if it be for evidences, that the evidences 
 be brought in ; and so in other cases which stand upon the 
 strength of the decree alone. But if any act be decreed to be 
 done, which extinguished the party's right at the common law, 
 as making of assurance or release, acknowledging satisfaction, 
 
 7 Ord v. Noel, 6 Madd. 127. ham, 3 McLean, 41 ; Story's Eq. PI. 
 
 8 Partridge v. Usborne, 5 Russ. 195. §§ 404, 417. 
 
 9 U. S. v. Sampeyreac, Hempst. 118. 13 Blandy v. Griffith, 6 Fish. Pat. Cas. 
 ™ Southard v. Russell, 16 How. 547. 434; Thomas v. Harvie, 10 Wheat. 146, 
 
 11 Manaton v. Molesworth, 1 Eden, 18, 151 ; Story's Eq. PI. § 410. 
 
 25. But see U. S. v. Sampeyreac, Hempst. M Southard v. Russell, 16 How. 547. 
 
 118 ; s. c. as Sampeyreac v. U. S., 7 Pet. 15 Carroll v. Parran, 1 Bland (Md.), 125, 
 
 222. note. 
 
 12 Beames' Orders, 1 ; Massie v. Gra-
 
 522 CORRECTION OF DECREE. [CHAP. XXVII. 
 
 cancelling bonds or evidences, and the like, those parts of the 
 decree are to be spared until the bill of review be determined ; 
 but such sparing is to be warranted by public order made in 
 Court." 1 If, however, the plaintiff to the bill of review be in- 
 solvent, 2 or for any other reason it be impossible for him to obey 
 the original decree; 3 or if it directed him to perform an act 
 after the performance of another act by the other part}', and 
 that other have omitted to perform his part thereof; 4 or perhaps, 
 if he have given security for its performance, 5 — his disobedience 
 is no objection to the bill of review. By an English order in 
 Chancery, made on March 12, 1700, it was ordered, that for 
 the future no bill of review should be allowed or admitted, unless 
 the party who preferred it first deposited the sum of <£50 with 
 the registrar of the court, as a pledge to answer such costs 
 and damages as the court should award to the adverse party, 
 in case it should think fit to dismiss the bill of review. 6 This 
 order should probably be followed here, five dollars being 
 reckoned as the equivalent of a pound sterling, and the money 
 being deposited with the clerk of the court. 7 The court may, 
 however, dispense with this requirement. 8 A decree entered by 
 consent cannot be impeached by a bill of review. 9 A decree 
 entered by consent can be set aside only by an original bill 
 alleging fraud or surprise. 10 It is no objection to a bill of re- 
 view that the party filing it has entered and procured the enrol- 
 ment of the decree; "because," said Lord Nottingham, "he can 
 have no error till it be enrolled, and perhaps the defendant will 
 never enrol it ; " n and a party may file a bill of review to a 
 decree entirely in his favor, claiming that it is less beneficial to 
 him than it should have been. 12 If upon a bill of review a 
 former decree has been reversed, another bill of review may be 
 brought to reverse the decree of reversal ; 13 but after a bill of 
 
 § 356. i Darnell's Ch. Pr. (3d Am. ed.) 6 Beanies' Orders, 313; Anon., 2 P. 
 
 1G34-1635. See also Beames' Orders, 4 ; Wins. 283. 
 
 Massie v. Graham, 3 McLean, 41. 7 Davis v. Speiden, 104 U. S. 83. 
 
 2 Davis v. Speiden, 104 U. S. 83. 8 Davis v. Speiden, 104 U. S. 83. 
 
 3 Story's Eq. PI. § 406; Wiser v. 9 Thompson v. Maxwell, 95 U. S. 391. 
 Blachly, 2 J. Ch. (N. Y.) 488; Davis 10 Gilbert v. Endean, 9 Ch. D. 259, 266. 
 v. Speiden, 104 U. S. 83. u Cook v. Bamfield, 3 Swanst. 607. 
 
 4 Partridge v. Usborne, 5 Russ. 195, 12 Cook v. Bamfield, 3 Swanst. 607; 
 251 ; Story's Eq. PI. § 406. Dexter v. Arnold, 5 Mason, 303. 
 
 6 Starlings v. Goodloe, 3 Murphey, 13 Mitford's PI. ch. 1, § 3 ; Stafford v. 
 150 ; Taylor v. Person, 2 Hawks (N. C), Bryan, 2 Paige (N. Y.), 45. 
 2'JS.
 
 § 356.] PROVISIONS COMMON TO ALL BILLS OF REVIEW. 523 
 
 review has been dismissed upon demurrer or otherwise, no second 
 bill of review will be allowed to be filed. 14 It is uncertain 
 whether a bill of review can be filed pending an appeal. 15 No 
 person -can file a bill of review except a party who has been 
 aggrieved by the decree complained of, 16 or the assignee by 
 operation of law of such a party. 17 All the parties to the 
 original decree should be joined in, either as plaintiffs or as 
 defendants to the bill of review. 18 Lord Redesdale gives the 
 following rules for the framing of a bill of review: " In a bill 
 of this nature it is necessary to state the former bill, and the 
 proceedings thereon ; the decree, and the point in which the 
 party exhibiting the bill of review conceives himself aggrieved 
 by it ; and the ground of law, or new matter discovered upon 
 which he seeks to impeach it : and if the decree is impeached 
 on the latter ground it seems necessary to state in the bill the 
 leave obtained to file it and the fact of the discovery, though 
 it may be doubted whether after leave given to file the bill that 
 fact is traversable. 19 The bill may pray simply that the decree 
 may be reviewed and reversed in the point complained of, if it 
 has not been carried into execution. If it has been carried 
 into execution the bill may also pray the farther decree of the 
 court, to put the party complaining of the former decree into 
 the situation in which he would have been if that decree had 
 not been executed. If the bill is brought to review the reversal 
 of a former decree, it may pray that the original decree may 
 stand. The bill may also, if the original suit has become abated, 
 be at the same time a bill of revivor. A supplemental bill may 
 likewise be added, if any event has happened which requires it ; 
 and particularly if any person not a party in the original suit 
 becomes interested in the subject he must be made a party to 
 the bill of review by way of supplement.'" 20 The plaintiff, 
 however, cannot put his case in the alternative, as a bill of 
 
 14 Pitt v. Earl of Arglass, 1 Vern. 441 ; 18 Bank of the United States v. White, 
 Danny v. Filmore, 1 Vern. 135. 8 Pet. 262. 
 
 15 Wilhm v. Willan, 1G Ves. 72, 87. 10 But see United States v. Sampey- 
 
 16 Whiting v. Bank of the United reac, Ilempst. 118; Dexter v. Arnold, 
 States, 13 Pet. 6; Thompson v. Max- 5 Mason, 303; Story's Eq. PI. § 420, 
 well, 95 U. S. 301. But see King v. note 7. 
 
 Dundee Mortgage & Tr. I. Co., 28 Fed. -° Mitford's PI. eh. 1, § 8, pt. S. See 
 
 R. 33. also Whiting v. Bank of United States, 
 
 17 Story's Eq. PI. § 409; Thompson v- 13 Pet. 6. 
 Maxwell, 95 U. S. 391.
 
 524 CORRECTION OF DECREE. [CHAP. XXVIL 
 
 review, or, if the court shall think it not good as such, then as 
 a bill of revivor and supplement. 21 It is improper for a bill of 
 review on account of errors of law to contain a statement of the 
 evidence in the original cause. 22 A bill f review should be 
 signed by counsel, and otherwise conform in general to the 
 requirements of an original bill. 23 If the court had jurisdiction 
 of the original suit, it can take jurisdiction of the bill of review ; 
 even though it would have none were the latter regarded as the 
 beginning of a new suit. 24 It has been said that a Federal 
 court cannot take cognizance of a bill of review to a decree of 
 a State court. 25 The service and the appearance of a defendant 
 to a bill of review is made and enforced in the same manner 
 as to an original bill. But if the defendant be beyond the 
 jurisdiction of the court, service of a subpoena upon his solicitor 
 in the former suit may be allowed by the court. 26 The usual 
 defense to a bill of review for errors apparent upon the face of 
 the decree is by demurrer ; 27 to which is usually joined a plea 
 setting forth in full the original decree, although there seems 
 to be no necessity for this practice. 28 If the demurrer is over- 
 ruled, the decree is reversed or modified and the errors allowed, 
 and no further answer or hearing is necessary. 29 If the demurrer 
 is sustained, that has all the effect of confirming the decree, and 
 puts an end to the suit. 30 The rule is in such a case only to 
 vary the decree upon such errors as are complained of, except 
 as to consequential directions, which will be altered to conform 
 to the changes made. 31 If a bill of review for apparent error 
 contain a statement of the evidence taken in the original cause, 
 that may be stricken out of the bill as surplusage on motion ; 32 
 or it may be a ground of demurrer, if specially assigned ; m but 
 the bill, if otherwise good, cannot be dismissed for that reason 
 upon a general demurrer. 34 According to Lord Redesdale : 
 " When any matter beyond the decree is to be offered against 
 opening the enrolment, as length of time, that matter must be 
 
 » Perry v. Phelips, 17 Ves. 173. 28 Mitford's PI. ch. 2, § 2, pt. 1, 5. 
 
 22 Buffington v. Harvey, 95 U. S. 99. ® Cook v. Bamfield, 3 Swanst. 607. 
 
 23 Mitford's PI. ch. 1, § 3, pt. 3. 80 Webb v. PjII, 3 Paige (N. Y.), 368. 
 21 Oglesby v. Attrill, 12 Fed. R. 227. 31 Moore v. Moore, 2 Ves. Sen. 596, 
 
 See § 21. ' 598. 
 
 25 Mr. Justice Bradley in Barrow v. 32 Mr. Justice Bradley in Buffington 
 Hunton, 99 U. S. 80, 83. v. Harvey, 95 U. S. 99. 
 
 26 See § 96. 33 Buffington v. Harvey, 95 U. S. 99. 
 37 Mitford's PI ch. 2, § 2, pt. 1, 5. 34 Buffington v. Harvey, 95 U. S. 99. 

 
 § 357.] BILLS IN THE NATURE OF BILLS OF REVIEW. 525 
 
 pleaded ; otherwise the plaintiff will not have the benefit of 
 exceptions, as infancy, coverture, or the like." 35 " A bill of review 
 upon the discovery of new matter and a supplemental bill of 
 the same nature being exhibited only by leave of the court, the 
 ground of the bill is generally well considered before it is 
 brought ; and therefore in point of substance it can rarely be 
 liable to a demurrer. But if brought upon new matter, and 
 the defendant should think that matter not relevant, probably 
 he might take advantage of it by way of demurrer, although 
 the relevancy ought to be considered at the time leave is given 
 to bring the bill." 36 If a demurrer to such a bill of review or 
 supplemental bill be overruled, it does not dispose of the cause ; 
 and the defendant must answer, because fact is at issue. 37 If 
 the demurrer is allowed, however, the suit is at an end. 38 The 
 defendant may, it seems, traverse, and attempt to disprove the 
 allegations concerning the discovery of the new facts. 39 Upon 
 the argument of the demurrer, nothing can be read except the 
 bill of review and the decree, 40 together with, in the Federal 
 Courts, the record 41 in the original suit; but, after the demurrer 
 has been overruled, the plaintiff is at liberty to read any evi- 
 dence that was submitted therein, as at a rehearing, the cause 
 being then equally open. 42 Filing a bill of review does not 
 prevent the execution of the decree impeached. 43 The court 
 has power when sustaining such a bill to set aside a convey- 
 ance made in pursuance of the decree. 44 
 
 § 357. Bills in the Nature of Bills of Review. — As has been 
 said above, 1 only parties to the decree impeached or their privies 
 by operation of law, as heirs, executors, or administrators, are 
 entitled to file a bill of review ; but other persons in interest and 
 in priority of estate, who are aggrieved by the decree, can have 
 the same relief by means of a bill in the nature of a bill of re- 
 view. 2 Such are assignees, devisees, and remaindermen of the 
 original unsuccessful parties. 3 Lord Redesdale also speaks as 
 
 85 Mitford's PI. ch. 2, § 2, pt. 2. States, 13 Pet. 13; Story's Equity Plead- 
 
 » B Mitford's PI. ch. 2, § 2, pt. 2. ing, § 407. 
 
 87 Cook v. Banifield, 3 Swanst. 607. 42 Catterall v. Purchase, 1 Atk. 200. 
 
 W .Mitford's PL ch. 2, § 2, pt. 2. 43 Williams v. Mellish, 1 Vera. 117, n. 
 
 39 Dexter v. Arnold, 5 Mason, 303 ; « Bank of the United States v. Ritchie, 
 
 U. S. v. Sampeyreac, Herapst 118; 8 Pet. 128. 
 
 Story's Eq. PI. § 420, n. 7. § 357. J See § 356. 
 
 « Catterall v. Purchase, 1 Atk. 290. - Story's Eq. PI. § 409. 
 
 41 Whiting v. Bank of the United B Story's Eq. PI. § 409; Whiting v.
 
 526 CORRECTION OF DECREE. [CHAP. XXVII. 
 
 follows concerning such a bill : " If a decree is made against a 
 person who has no interest at all in the matter in dispute, or had 
 not such an interest as was sufficient to render the decree 
 against him binding upon some person claiming the same or a 
 similar interest, relief may be obtained against error in the decree 
 by a bill in the nature of a bill of review. Thus, if a decree is 
 made against a tenant for life only ; a remainderman in tail, or 
 in fee, cannot defeat the proceedings against the tenant for life, 
 but by a bill, showing the error in the decree, the incompetency 
 in the tenant for life to sustain the suit, and the accruer of his 
 own interest, and thereupon praying that the proceedings in the 
 original cause may be reviewed, and for that purpose that the 
 other party may appear to and answer this new bill, and that 
 the rights of the parties may be properly ascertained. A bill of 
 this nature, as it does not seek to alter a decree made against the 
 plaintiff himself, or against any person under whom he claims, 
 ma} r be filed without the leave of the court." 4 Otherwise, the 
 frame of and proceedings under bills in the nature of bills of 
 review are substantially the same as those relating to bills of 
 review. 
 
 § 358. Bills to impeach Decrees on Account of Fraud. — "If a 
 decree has been obtained by fraud, it may be impeached by 
 original bill without the leave of the court ; the fraud used in 
 obtaining the decree being the principal point in issue, and neces- 
 sary to be established by proof before the propriety of the decree 
 can be investigated. And where a decree has been so obtained the 
 court will restore the parties to their former situation, whatever 
 their rights maybe." 1 Such a bill has been called an original 
 bill in the nature of a bill of review. 2 There are dicta stating 
 that a decree obtained by fraud may be set aside upon petition ; 3 
 but it was finally settled that after enrolment a decree could 
 only be impeached for this account by an original bill. 4 This is 
 the only manner in which a decree entered by consent can be 
 
 Bank of the United States, 13 Pet. 6; Mo. Pacific Ry. Co., Ill United States, 
 
 Singleton v. Singleton, 8 B. Monr. (Ky.) 605. 
 
 340 ; Turner v. Berry, 38 111. 541. 2 Mussel v. Morgan, 3 Bro. Ch. R. 74, 
 
 4 Mitford's PI. ch. 1, § 2, pt. 3. 79; Story's Eq. PI. § 426. 
 § 358. ! Mitford's PI. ch. 1, § 2, pt. 3. 3 Sheldon v. Fortescue Aland, 3 P. 
 
 See also Story's Eq. PI. § 426 ; Richmond Wms. 104, 111 ; Story's Eq. PI. § 426. 
 v. Tayleur, 1 P. "Wins. 734 ; Barnesle v. 4 Mussel v. Morgan, 3 Bro. Ch. R. 
 
 Powell, 1 Ves. Sen. 120; Evans e. Bacon, 74, 79; Bennett v. Hamill, 2 Sch. & Lefr. 
 
 99 Mass. 213 ; Pacific R. R. of Mo. v. 566, 576 ; Story's Eq. PI. § 426. 

 
 § 359.] BILLS TO SUSPEND THE OPEKATION OF DECREES. 527 
 
 impeached. 5 Decrees entered by collusion, 6 or surprise, 7 may also 
 be rectified in this manner. Certain other cases, although if 
 logical arrangement solely were considered they should be con- 
 sidered under other heads, yet as they are usually spoken of in 
 this connection by the books, may be here referred to. Lord 
 Redesdale uses the following language, which has been copied 
 by all subsequent text- writers : " Besides cases of direct fraud in 
 obtaining a decree, it seems to have been considered, that where 
 a decree has been made against a trustee, the cestui que trust not 
 being before the court and the trust not discovered ; or against a 
 person who has made some conveyance or incumbrance not dis- 
 covered ; or when a decree has been made in favor of or against 
 an heir, when the ancestor has in fact disposed by will of the 
 subject matter of the suit ; the concealment of the trust or sub- 
 sequent conveyance, or incumbrance, or will, in these several 
 cases, ought to be treated as a fraud. It has been also said that 
 where an improper decree has been made against an infant, with- 
 out actual fraud, it ought to be impeached by original bill." 8 A 
 bill to set aside a decree for fraud must state the decree, and the 
 proceedings which led to it, with the circumstances of fraud on 
 which it is impeached. 9 All the parties to the original suit or 
 their representatives should be joined as parties to it. 10 It mav 
 be filed in a Federal, to set aside a decree made by a State 
 court. 11 
 
 § 359. Bills to Suspend or Avoid the Operation of Decrees. — 
 Lord Redesdale speaks as follows concerning bills to suspend 
 the operation of decrees : " The operation of a decree sigued 
 and enrolled has been suspended on special circumstances, or 
 avoided by matter subsequent to the decree, upon a new bill for 
 that purpose. Thus during the troubles after the death of Charles 
 the First, upon a decree for a foreclosure in case of non-payment 
 of principal, interest and costs due on a mortgage, the mortgagor 
 at the time of payment being forced to leave the kingdom to 
 avoid the consequences of his engagements with the royal party, 
 
 5 Buck v. Fawcett, 3 P. Wms. 242 ; 8 Mitford's PI. oh. 1, § 2, pt. 3. 
 
 Davenport v. Stafford, 8 Beav. 503 ; Gil- 9 Mitford's PI. ch. 1, § 2, pt. 3 ; Story's 
 
 bert v. Endean, L. R. 9 Ch. D. 259; Se- Eq. PI. § 476. 
 
 ton on Decrees (4th ed.), 1536. " Harwood v. Railroad Co., 17 Wall. 
 
 Buck v. Fawcett, 3 P. Wins. 242; 78. 
 
 Story's Eq. PI. §§ 420-428. « Gaines v. Fuentos. 92 U. S. 10; Bar- 
 
 7 Stevens v. Guppy, 1 Turn. & Rus. row v. ilunton, 99 U. S. 80. 
 178.
 
 528 CORRECTION OF DECREE. [CHAP. XXVII. 
 
 and having requested the mortgagee to sell the estate to the 
 best advantage and pay himself, which the mortgagee appeared 
 to have acquiesced in ; the court upon a new bill enlarged the 
 time for performance of the decree, upon the ground of the 
 inevitable necessity which prevented the mortgagor from comply- 
 ing with the strict terms of it, and also made a new decree on 
 the ground of the matter subsequent to the. former decree." 1 
 " The embarrassments occasioned by the civil war in the reign of 
 Charles I., and the state of affairs after his death, before the 
 restoration of Charles II., occasioned many extraordinary appli- 
 cations to the court of Chancery for relief, and perhaps induced 
 the court to go far in extending relief; but there were many 
 cases of extreme hardship in which it was deemed impossible, 
 consistently with established principles, to give relief; and all 
 cases determined soon after the restoration, upon circumstances 
 connected with the prior disturbed state of the country, ought 
 to be considered with much caution." 2 
 
 § 359. 1 Mitford's PI. ch. 1, § 2, pt. 3; 2; Whorewood v. Whorewood, 1 Ch. Cas. 
 Cocker v. Bevis, 1 Ch. Cas. 61 ; and also 250; Wakelin v. Walthal, 2 Ch. Cas. 8. 
 referring to Venables v. Foyle, 1 Ch. Cas. 2 Mitford's PI. ch. 1, § 2, pt. 3. 

 
 § 360.] COMMON-LAW PRACTICE IN GENERAL. 529 
 
 CHAPTER XXVIII. 
 
 PRACTICE AT COMMON LAW. 
 
 § 360. Common-Law Practice in General. — Actions at common 
 law are either civil or criminal. The Supreme Court considers 
 the practice of the court of King's Bench in England as affording 
 outlines for its practice at common law. 1 In civil actions at 
 common law the Circuit and District Courts follow in general 
 the practice in the courts of the State where they are held, ex- 
 cept in those particulars which are regulated by Federal statute. 2 
 The Revised Statutes provide, that, " the practice, pleadings and 
 forms and modes of proceeding in civil causes, other than 
 equity and admiralty causes, in the Circuit and District Courts 
 shall conform, as near as may be, to the practice, pleadings and 
 forms, and modes of proceeding existing at the time in like causes 
 in the courts of record of the State within which such Circuit or 
 District Courts are held, any rule of court to the contrary not- 
 withstanding." 3 The phrase "as near as may be" has been 
 held not to mean " as near as may be possible," nor " as near as 
 may be practicable," 4 but to devolve upon the Federal courts the 
 duty of construing and deciding, and to give them the power to 
 reject any subordinate provision in such State statutes, which in 
 their judgment would unwisely encumber the administration of 
 the law, or tend to defeat the ends of justice in their tribunals. 5 
 The State practice will not be so far followed as to permit an 
 equitable defense to be pleaded in an action at common law. 6 
 It has been held at circuit, that, no matter what the State 
 practice may be, a denial of allegations of jurisdictional facts in 
 the plaintiff's declaration or other pleading at law can only be 
 
 § 360. i Svipreme Court Rule 3. * I. & St. L. R. R. Co. v. Horat, 93 
 
 2 U. S. R. S. § 91 1. U. S. 291, 301 ; Phelps v. Oaks, 117 U. S. 
 
 s U. S. R. S. § 014. 236, 239. 
 
 4 Indianapolis & St. L. R. R. Co. v. 6 Doe v. Roe, 31 Fed. R. 97. See 
 
 Horst, 98 IT. S. 201, 301 ; Phelps v. Oaks, Northern Pac. R. R. Co. v. Paine, 119 
 
 117 U. S. 2oG, 239. U. S. 601 ; § t). 
 
 34
 
 530 
 
 PRACTICE AT COMMON LAW. 
 
 [CHAP. XXVIII. 
 
 made by a special plea to the jurisdiction, and is waived by a 
 general denial or by a plea to the merits ; although the court 
 may of its own motion institute at any time an inquiry into 
 the truth of such facts. 7 In the following particulars is practice 
 at common law in civil cases in the Circuit and District Courts 
 of the United States regulated by Federal statutes: writs 
 and process, 8 provisional remedies, 9 abatement and revivor, 10 
 consolidation of suits, 11 evidence, testimony and depositions, 12 
 trials, 13 motions for new trials, 14 judgments, 15 correction of 
 judgments, 16 costs, 17 executions and proceedings supplementary 
 thereto, 18 contempts, 19 and bills of exceptions. 20 In criminal 
 actions, the Circuit and District Courts follow the old practice 
 at common law, except in so far as the same has been changed 
 by a Federal statute. 21 It has been held that in the following 
 cases the Federal Court will in civil actions at common law follow 
 the statutes of the respective States where they are held: form 
 of writ, 22 endorsement of writ, 23 endorsement of summons, 24 
 service of writ and process, 25 joinder of causes of action, 26 
 joinder of parties, 27 verification of pleading, 28 time 29 and man- 
 ner 30 of service of pleading and amendment of pleading, 31 
 granting of order of interpleader, 32 notice of trial or argument, 33 
 
 7 Imperial Refining Co. v. "Wyman, 
 38 Fed. R. 674. Contra, Ehrman v. Teu- 
 tonia Ins. Co., 1 Fed. R. 471; Draper 
 v. Town of Sprin^port, 15 Fed. R. 328. 
 See Rubel v. Beaver Falls Cutlery Co., 
 22 Fed. R. 282. 
 
 8 § 361. 
 
 9 §§ 369-370. 
 io § 373. 
 
 « § 371. 
 12 § 372. 
 » § 374. 
 " § 376. 
 
 is § 379. 
 
 17 Chapter XXV. But see Huntress v. 
 Town of Epsom, 15 Fed. R. 732; New 
 Hampshire Land Co. v. Tilton, 29 Fed. R. 
 764. 
 
 i 8 § 380. 
 
 is §§ 341-346. 
 
 20 § 377. 
 
 si U. S. v. Maxwell, 3 Dill. 275 ; U. S. 
 v. Nye, 4 Fed. R. 888 ; U. S. v. Reid, 12 
 How. (U. S.) 361; Erwin v. U. S. 37 
 Fed. R. 470, 488. 
 
 22 Brown v. Chesapeake & Ohio Canal 
 Co., 4 Fed. R 770. See Baltimore & O. 
 R. Co. v. Hamilton, 16 Fed. R. 181. But 
 see § 361. 
 
 £ 3 Brown v. Pond, 5 Fed. R. 31, 37. 
 But see § 361. 
 
 2 * U. S. v. Rose, 14 Fed. R. 681. 
 
 25 Shampeau v. Connecticut River Lum- 
 ber Co., 37 Fed. R. 771 ; Wilson v. Fine, 
 38 Fed. R. 789 ; Amy v. Watertown, 130 
 U. S. 301. 
 
 26 Castro v. De Uriarte, 12 Fed. R. 251. 
 
 27 Perry v. Mechanics' Mutual Ins. Co., 
 11 Fed. R. 478. 
 
 28 West v. Home Ins. Co., 18 Fed. R. 
 622; Cottier v. Stimson, 18 Fed. R. 689. 
 
 29 Ricard v. Inhabitants of Township 
 of New Providence, 5 Fed. R. 433. 
 
 3) Wilson v. Fine, 38 Fed. R. 789. 
 
 3i Rosenbach v. Dreyfuss, 1 Fed. R. 
 391. But see U. S. R. S. § 954; Erstein 
 v. Rothschild, 22 Fed. R. 61. 
 
 82 Harris v. Hess, 10 Fed. R. 263. See 
 § 88 for practice in equity. 
 
 38 Rosenbach v. Dreyfuss, 2 Fed. R. 23.
 
 § 361.] WRITS AND PROCESS IN GENERAL. 531 
 
 opening judgment by default, 34 suspension of judgment pending 
 writ of error. 35 
 
 § 361. Writs and Process in General. — The Revised Statutes 
 provide that " all writs and processes issuing from the courts of 
 the United States shall be under the seal of the court and shall 
 be signed by the clerk thereof." l Consequently a rule of State 
 practice which permits an attorney to issue a summons, subpoena, 
 or other process without the seal of the court or the signature 
 of the clerk, will not be followed by the Federal court ; 2 and a 
 summons issued without such seal and signature is void, and can- 
 not be cured by amendment. 3 
 
 Writs and process which issue from the Supreme Court or a 
 Circuit Court must bear teste of the Chief Justice of the United 
 States, or, when that office is vacant, of the associate justice next 
 in precedence, and those issuing from a District Court must bear 
 teste of the judge of that court or, when that office is vacant, 
 of the clerk thereof. 4 All process must bear teste from the day 
 of its issue. 5 
 
 The Supreme Court has power to issue writs of prohibition 
 to the District Courts when proceeding as courts of admiralty 
 and maritime jurisdiction, 6 and power to issue writs of man- 
 damus to any courts appointed under the authority of the 
 United States; and where a State, public minister, consul, or 
 vice-consul is a party, to persons holding office under the author- 
 ity of the Uuited States. 7 The Supreme Court, the Circuit 
 Courts, and the District Courts have power to issue writs 
 of scire facias, and all writs, not specifically provided for by 
 statute, which are necessary for the exercise of their respective 
 jurisdictions and agreeable to the usages and principles of 
 law. 8 
 
 The Revised Statutes provide that " No summons, writ, decla- 
 ration, return process, judgment, or other proceedings in civil 
 causes, in any court of the United States, shall be abated, ar- 
 rested, quashed, or reversed for any defect or want of form ; but 
 
 » Brown v. Phila., W. & B. R. Co., 9 3 Dwight v. Merritt, 4 Fed. R. 614; 
 
 Fed. R. 183. But see § 379. Feaslee v. Haberstro, 15 Blatchf. 472. 
 
 85 United States v. Sturgis, 14 Fed. R. 4 U. S. R. S. § 911. 
 
 810. 5 U. S. R. S. § 912. 
 
 § 361. i U. S. R. S. § 911. 6 U. S. R. S. § 688. See § 862. 
 
 " Dwight v. Merritt, 4 Fed. R. 614; » U. S. R. S. § 688. See § 363. 
 
 Peaslee v. Haberstro, 15 Blatchf. 472. 8 U. S. R. S. § 710.
 
 532 PRACTICE AT COMMON LAW. [CHAP. XXVIII. 
 
 such court shall proceed and give judgment according as the 
 right of the cause and matter in law shall appear to it, without 
 regarding any such defect, or want of form, except those which, 
 in cases of demurrer, the party demurring specially sets down, 
 together with his demurrer as the cause thereof; and such court 
 shall amend every such defect and want of form, other than those 
 which the party demurring so expresses ; and may at any time 
 permit either of the parties to amend any defect in the process or 
 pleading, upon such conditions as it shall, in its discretion and by 
 its rules, prescribe." 9 The Revised Statutes make it the mar- 
 shal's duty to execute, throughout the district, all lawful pre- 
 cepts directed to him and issued under the authority of the 
 United States, 10 and give all his deputies the same powers as the 
 sheriffs in the same State and their deputies. 11 It has been held 
 at circuit that process, other than subpoenas ad testificandum^ 
 can only be served by the marshal or his deputy ; 13 but that, 
 when the laws of the State give such power to a sheriff, the mar- 
 shal may appoint a person to serve a particular writ or perform 
 any other special service. 14 The Supreme Court has said, speak- 
 ing of the act requiring a conformity with the State practice in 
 actions at common law : " There can be no doubt, we think, that 
 the mode of service of process is within the categories named in 
 the act." 15 That court has held that corporations can be served 
 in actions at common law only in the manner prescribed by the 
 State statutes. 16 
 
 § 362. "Writs of Prohibition. — A writ of prohibition is a writ 
 issuing out of a court of superior jurisdiction, and directed to an 
 inferior court for the purpose of preventing the inferior tribunal 
 from usurping a jurisdiction to which it is not entitled. 1 The 
 writ of prohibition is a civil proceeding even when designed to 
 stop a criminal proceeding. 2 
 
 9 U. S. R. S. § 954. " Hyman v. Chales, 12 Fed. R. 855. 
 
 10 U. S. R. S. § 787. 15 Amy v. Watertown, 130 U. S. 301, 
 
 " U. S. R. S. § 788. 304. 
 
 12 Russell v. Ashley, Hempst. 546; 16 Amy v. Watertown, 130 U. S. 301. 
 Miller <;. Scott,6 Pliila. (Pa.) 484; Schwa- § 362. » High on Extraordinary Rem- 
 backer v. Reilly, 2 Dill. 127. edies. § 762. 
 
 13 Schwabacker v. Reilly, 2 Dill. 127. 2 Farmworth v. Montana, 129 U. S- 
 But see Amy v. Watertown, 130 U. S. 104, 113; Smith v. Whitney, 116 U. S 
 301, 304 ; Hyman v. Chales, 12 Fed. R. 167. 
 
 855; U. S. v. Jailer of Fayette County, 
 2 Abb. U. S. 265.
 
 § 363.] MANDAMUS. 533 
 
 The Supreme Court has power to issue writs of prohibition 
 to the District Courts of the United States when proceeding 
 as courts of admiralty. 3 The Supreme Court has no power to 
 issue a writ of prohibition in any other case, except when 
 necessary for the exercise of its jurisdiction in some matter 
 before it. 4 
 
 The usual practice is, upon an application in the name of the 
 United States on the relation of the party aggrieved, for the 
 court to grant a rule to the judge sought to be prohibited, to 
 show cause why the writ should not issue, and to accompany the 
 rule with an order that he proceed no further in the case till the 
 decision of the Supreme Court in the premises. 5 It has been 
 said that when the suit complained of is brought by a private 
 person the judge may be joined as a defendant ; but that when 
 it is a suit or prosecution on behalf of the government the writ 
 of prohibition can go to the court only. 6 The proceedings of a 
 court-martial cannot be prohibited by such a writ addressed to 
 an officer who ordered the court-martial to convene, but is not 
 himself a member of it. 7 
 
 The writ of prohibition cannot be used to correct errors of a 
 court in deciding matters of law or fact within its jurisdiction, 8 
 nor to undo what has been done. 9 " The only effect of the writ 
 is to suspend all action, and to prevent any further proceeding 
 in the prohibited direction." 10 
 
 No Circuit or District Court of the United States has the 
 power to issue a writ of prohibition except when necessary for the 
 exercise of its jurisdiction in some matter previously before it. 11 
 
 § 363. Mandamus. — The writ of mandamus is a command 
 issuing in the name of the United States directed to a person, 
 corporation, or inferior court within its jurisdiction, requiring 
 them to do some particular thing therein specified, which per- 
 tains to their office or duty, and which the court issuing the 
 writ determines to be their duty. 1 
 
 ' U. S. R. S. § 688; Ex parte Phoenix 7 Smith v. Whitney, 116 I T . S. 167, 176. 
 
 Ins. Co., 118 U. S. 610. 8 Smith v. Whitney, 116 U. S. 167, 
 
 * Ex parte Gordon, 1 Black, 503 ; In 176. 
 
 re Christy, 3 How. 202 ; Ex parte War- 9 U. S. v. Hoffman, 4 Wall. 158. 
 
 mouth, 17 Wall. 64 ; Ex parte Graham, 10 U. S. v. Hoffman, 4 Wall. 158. 
 
 10 Wall. 541. " U. S. R. S. § 716; lie Bininger, 7 
 
 5 U. S. v. Hoffman, 4 Wall. 158. Blatchf. 159. 
 
 « Smith v. Whitney, 116 U. S. 167, § 363. » Ex parte Crane, 5 Pet. 189, 
 
 176, per Gray, J. 190.
 
 £34 
 
 PRACTICE AT COMMON LAW. 
 
 [CHAP. XXVIII. 
 
 The Supreme Court has power to issue writs of mandamus, 
 in cases warranted by the principles and usages of law, to any 
 courts appointed under the authority of the United States; 2 or 
 where a State or an ambassador, or other public minister, or a 
 consul or vice-consul is a party, to persons holding office under 
 the authority of the United States. 3 The Constitution prohibits 
 the grant to that court of any further original jurisdiction to 
 issue writs of mandamus to officers of the United States. 4 The 
 constitutionality of the grant to the Supreme Court of power to 
 issue writs of mandamus to other courts of the United States 
 has been upheld on the ground that such a writ is in the nature 
 of appellate jurisdiction. 5 
 
 A mandamus will issue to compel a court to exercise its dis- 
 cretion in one way or another. 6 A mandamus has been issued to 
 compel a court to proceed in a case which it had dismissed or 
 remanded for want of jurisdiction, when the record before the 
 lower court showed its jurisdiction ; 7 but not when through 
 mistake a paper showing the jurisdiction was not in the record 
 and before the court. 8 The writ of mandamus has been granted 
 to compel the allowance of an appeal, 9 provided the applicant is 
 a party to the suit ; 10 to compel a judge to settle a bill of excep- 
 tions and to sign the same after it has been settled by him, 11 but 
 not to sign a bill of exceptions which he considers does not state 
 correctly the proceedings before him ; n to compel a court to pro- 
 ceed in a suit which it had improperly stayed; 13 to compel a court 
 to proceed to judgment, 14 and when the act of signing the judg- 
 ment is purely ministerial, to compel a court to sign the same ; 15 
 
 2 IT. S. R. S. § 688. 
 
 3 U. S. R. S. § 688. 
 
 4 Marbury v. Madison, 1 Cranch, 137. 
 
 5 Ex parte Crane, 5 Pet. 189, 190. 
 
 6 Ex parte Crane, 5 Pet. 189, 190; Ex 
 parte Morgan, 114 U. S. 174; Ex parte 
 Parker, 120 U. S. 737. 
 
 7 Insurance Co. v. Comstock, 16 Wall. 
 258; Railroad Co. v. Wiswall, 23 Wall. 
 507 ; Hoadley v. San Francisco, 94 U. S. 
 4 ; Ex parte Schollenberger, 96 U. S. 369 ; 
 Ex parte Railway Co., 103 U. S. 794; Ex 
 parte Baltimore & O. R. R. Co., 108 U. S. 
 566; Hollon Parker, Petitioner, 131 U. S. 
 221. But see In re Burdett, 127 U. S. 
 771. 
 
 8 In re Sherman, 124 U. S. 364. 
 
 9 Ex parte Jordan, 94 U. S. 248 ; Ex 
 parte Railroad Co., 95 U. S. 221 ; Vigo'a 
 Case, 21 Wall. 648. 
 io Ex parte Cutting, 94 U. S. 14. 
 
 11 Chateaugay Ore & Iron Co., Peti- 
 tioner, 128 U. S. 544. See Ex parte 
 Crane, 5 Pet. 189, 190. 
 
 1 2 Ex parte Bradstreet, 4 Pet. 102. 
 
 13 Livingston v. Dorgenois, 7 Cranch, 
 577. But see Ex parte Bradstreet, 8 
 Pet. 588. 
 
 14 Life & Fire Ins. Co. v. Wilson, 8 Pet. 
 291 ; Life & Fire Ins. Co. v. Adams, 9 
 Pet. 571. 
 
 15 Ex parte Bradstreet, 6 Pet. 774 ; Life 
 & Fire Ins. Co. v. Wilson, 8 Pet 291 ; Ex 
 parte Many, 14 How. 24.
 
 § 363.] MANDAMUS. 535 
 
 to compel a court to execute a judgment it had rendered ; 16 
 to compel a court to execute a previous maudate of the Supreme 
 Court ; 17 and to compel the reinstatement of an attorney who 
 has been disbarred, in a case of which the court had not juris- 
 diction or acted with flagrant impropriety. 18 
 
 A mandamus will not be issued when there is any other appro- 
 priate relief ; 19 — as, for example, by writ of error or appeal, 20 nor 
 to control the exercise of discretion, 21 except, possibly, in case of 
 a very flagrant abuse of discretion. 22 The writ of mandamus has 
 been denied when asked to compel a court to allow or refuse an 
 amendment of a pleading, 23 to order the withdrawal of a plea, 24 
 to allow the filing of double pleas, 25 to vacate interlocutory 
 orders which do not terminate the suit, 26 to vacate a preliminary 
 injunction, 27 to vacate an order setting aside a nonsuit, 28 to open 
 a default, 29 to quash a writ of execution, 30 to diminish the amount 
 of bail required for a prisoner's discharge, 31 to approve a bond, 32 
 and to grant a rehearing. 33 
 
 The Circuit Courts of the United States have power to issue a 
 mandamus, upon motion of the Attorney-General or any district 
 attorney of the United States, to compel any officer of the United 
 States to file the bonds, make the returns, and perform any other 
 duties required by Chapter 95 of Laws passed at the Second 
 Session of the Forty-third Congress, relating to costs and fees ; 3i 
 
 15 U. S. v. Peters, 5 Cranch, 115; Staf- 588; Ex parte Milwaukee R. R. Co., 5 
 
 ford v. Union Bank, 1G How. 135. Wall. 188; Life & Fire Ins. Co. v. Wil- 
 
 " White v. U. S-, 1 Black, 501 ; U. S. son, 8 Pet. 291. 
 
 v. Fossatt, 21 How. 445; Ex parte Da- 22 Ex parte Bradley, 7 Wall. 304. 
 
 buque & P. R. R. Co., 1 Wall. 69. But 23 Ex parte Bradstreet, 7 Pet. 634. 
 
 see Ex parte Railway Co., 101 U. S. 711. 2i Bank v. Sweeny, 1 Pet. 567. 
 
 18 Ex parte Bradley, 7 Wall. 364; Ex & Ex parte Davenport, 6 Pet. 661. 
 
 parte Robinson, 19 Wall. 506. But see 2 « Ex parte Hoyt, 13 Pet. 279; Ex parte 
 
 Ex parte Burr, 9 Wheat. 529; Ex parte Whitney, 13 Pet. 404; Gain v. Relf, 
 
 Secombe, 19 How. 9 ; Ex parte Wall, 15 Pet. 9 ; Ex parte Perry, 102 U. S. 183 ; 
 
 107 U. S. 265. Ex parte Schwab, 98 U. S. 240. 
 
 » Bank of Columbia v. Sweeny, 1 Pet. * Ex parte Schwab, 98 U. S. 240 
 
 5G7 ; U. S. v. Addison, 22 How. 174; Ex 28 Ex parte Loring, 94 U. S. 418. 
 
 parte Newman, 14 Wall. 162. 29 Ex parte Roberts, 6 Pet. 216. 
 
 23 Ex parte Newman, 14 Wall. 152; » Ex parte Flippin, 94 U. S. 348. 
 
 Connecticut Mutual Life Ins. Co., Peti- 31 Ex parte Taylor, 14 How. 3. 
 
 tioner, 131 U. S. App. clxxx. 3 - Ex parte Milwaukee R. R. Co., 5 
 
 21 Ex part,- Railway Co., 101 U. S. 711 ; Wall. 188. 
 
 Ex parte Roberts, 6 Pet 216; Ex parte 33 U. S. v. Bullock, Pet. 485, note. 
 
 Davenport, 6 Pet. 661 ; Ex parte Brad- ** 1 Supp. R. S. 145-147, § 4 ; 18 St 
 
 street, 7 Pet. 634 ; Ex parte Bradstreet, at L. ch. 95, p. 333. 
 4 Pet. 182 ; Ex parte Bradstreet, 8 Pet.
 
 536 PRACTICE AT COMMON LAW. [CHAP. XXVIII. 
 
 and to compel the Union Pacific Railroad Company to operate 
 its road as required by law. 35 The Circuit and the District 
 Courts of the United States have the power to issue a writ of 
 mandamus to compel compliance with the provisions of the 
 Interstate Commerce Act. 36 Otherwise, those courts have no 
 power to issue a writ of mandamus, except when necessary for 
 and ancillary to the exercise of their respective jurisdiction in 
 another matter. 37 The Circuit Court may, as ancillary to a case 
 of which it has appellate jurisdiction, issue a writ of mandamus 
 to a District Court of the United States. 38 
 
 The most frequent instances in which writs of mandamus are 
 issued by the Circuit Courts of the United States are to compel 
 the levy of taxes by officers of municipal or other public corpo- 
 rations to satisfy judgments previously obtained in the courts 
 which issued the writs. 39 The writ will not issue to compel such 
 an officer to perform a duty not imposed upon him by the law of 
 the State under which he was appointed. 40 When the statute 
 authorized a city council to levy a tax to pay a funded debt " if 
 it believe that the public good and the best interests of the city 
 require," a mandamus was issued after judgment to compel the 
 levy of the tax. 41 A repeal of the State statute authorizing the 
 officer to levy the tax does not divest the power of the Federal 
 court to compel him to do so by a mandamus, after a judgment 
 upon a contract made before the repeal. 42 When the charter of 
 the municipal corporation has been repealed and its corporate 
 existence extinguished no such mandamus can be granted. 43 
 
 85 17 St. at L. ch. 226, p. 509, § 4 ; U. S. 39 Riggs v. Johnson County, 6 Wall. 
 
 v. U. P.R. R. Co., 2 Dill. 527 ; U. P.R. R. 166; Davies v. Corbin, 112 U. S. 36; 
 
 Co. v. Hall, 91 U. S. 343. Commissioners v. Aspinwall, 24 How. 
 
 3 6 25 St. at L. ch. 382, p. 862, § 10. 376; Supervisors v. U. S., 4 Wall. 435; 
 See TJ. S. v. Delaware, L. & W. R. Co., Weber v. Lee County, 6 Wall. 210 ; U. S. 
 40 Fed. R. 101, 105. v. New Orleans, 98 U. S. 381. 
 
 37 U. S. R. S. § 716 ; Mclntire v. Wood, 40 U. S. v. Macon County, 99 U. S. 
 7 Cranch, 504 ; McClung v. Sillirnan, 6 582 ; U. S. v. Labette County, 7 Fed. R. 
 Wheat. 598; Graham v. Norton, 15 Wall. 318; U. S. v. County of Clark, 95 U. S. 
 427; Bath County v. Amy, 13 Wall. 244 ; 769; Memphis v. U. S., 97 U. S. 293; 
 County of Greene v. Daniel, 102 U. S. Brownsville v. Loague, 129 U. S. 493. 
 187 ; Davenport v. County of Dodge, 105 41 Galena v. Amy, 5 Wall. 705. 
 
 U. S. 237 ; Louisiana v. Jumel, 107 U. S. M Wolff v. New Orleans, 103 U. S. 358; 
 
 711, 727. Von Hoffman v. Quincy, 4 Wall. 635. 
 
 38 Smith v. Jackson, 1 Paine, 453 ; The i3 Meriwether v. Garrett, 102 U. S. 
 New England, 3 Sumner, 495 ; The En- 472 ; Barkley v. Levee Commissioners, 
 terprise, 3 Wall. Jr. 58; Ex parte Jesse 93 U. S. 258. But see U. S. v. Port of 
 Hoyt, 13 Pet. 279. Mobile, 12 Fed. R. 768. 

 
 § 364] PRACTICE ON APPLICATION FOR MANDAMUS. 537 
 
 A mandamus to compel the levy of a tax cannot be issued until 
 after a judgment has been obtained. 44 
 
 A Slate court cannot issue a mandamus against an officer of 
 the United States to compel the performance of a duty of his 
 Federal office. 45 The only court which has any original juris- 
 diction to issue such a writ against an officer of the United 
 States, in the absence of special statute, and where neither a 
 State, nor an ambassador or other public minister, nor a consul 
 or vice-consul is a party, is the Supreme Court of the District of 
 Columbia. 46 
 
 § 364. Practice on Application for Mandamus. — In the Supreme 
 Court of the United States, the usual practice on an application 
 for a mandamus is to issue a rule addressed to the judge or 
 judges of the lower court calling on him to show cause why the 
 writ should not issue against him. 1 The rule may also be ad- 
 dressed to the lower court itself. 2 The rule is only issued upon 
 a petition verified by affidavit, showing an apparent right to 
 the writ. 3 The party at whose relation the writ is issued, must 
 have an interest in the relief sought. 4 He is not obliged to ob- 
 tain the intervention of the Attorney-General or a district attor- 
 ney. 5 It is the safer practice to move ex parte for leave to file 
 the petition. 6 The return cannot be amended on the motion of 
 a person to whom the writ is not addressed. 7 
 
 It has been held that, in the Circuit Courts of the United 
 States, the State practice should not be followed, but that the 
 practice remains substantially as at common law. 8 It is, how- 
 ever, safer to also comply with the regulations of the State 
 practice. 9 When mandamus is sought to compel the payment 
 of a judgment against a municipal corporation, performance 
 must be first made of all conditions precedent required by 
 
 « Rosenbaum v. Bauer, 120 U. S. 450, 4 Ex parte Fleming, 2 Wall. 759. 
 
 and cases cited. 5 U. P. R. R. Co. v. Hall, 91 U. S. 
 
 •" MeClung v. Silliman, Wheat. 598. 43; 8. c. as Hall v. Union P. R. R. Co., 
 
 « Kendall v. U. S., 12 Pet. 524; U. S. 3 Dill. 515; U. S. v. U. P. R. R. Co., 91 
 
 v. Schurz, 102 U. S. 378. U. S. 72. 
 
 § 364. i Postmaster-General v. Trigg, 6 State of Georgia v. Grant, 6 Wall. 
 
 11 Pet. 173; Ex parte Poultney v. City of 241; Farmers' Loan & Trust Co. lVti- 
 
 La Fayette, 12 Pet. 472; Ex parte Schol- tioner, 129 U. S. 200. 
 
 lenberger, 96 U. S. 369. 7 Ex parte Harmon, 131 U. S. Appen- 
 
 2 Hollon Parker, Pet'r, 131 U. S. 221. dix lxvii. 
 
 » Poultney v. La Fayette, 12 Pet. 472 ; 8 U. S. v. U. P. R. R. Co., 2 Dill. 527. 
 
 Ex parte Taylor, 14 How. 3 ; Postmaster- 9 Wisdom v. Memphis, 2 Flippin, 285. 
 General v. Trigg, 11 Pet. 173.
 
 538 PRACTICE AT COMMON LAW. [CHAP. XXVIII. 
 
 State statutes, such as the issue of an execution and its re- 
 turn unsatisfied, 10 and service of the judgment upon such offi- 
 cers as the State statute requires. 11 It seems that a formal 
 demand for pa}^ment of the judgment is, unless when the stat- 
 utes of the State require it, not a condition precedent to the 
 issue of the writ. 12 The application for a mandamus should be 
 by a verified petition, which may be also termed an information 
 or complaint. 13 " If a prima facie case is presented warranting 
 the relief prayed, the alternative writ issues commanding the 
 respondent forthwith to do the act required, or to show cause 
 why it should not be done. After the granting of the writ three 
 courses are open to the respondent : first, he may do the thing 
 required; second, he may in most of the States demur; and 
 third, he may make return." u By the common law, the return 
 was not traversable. 15 By the statute 9 Anne, ch. 20, a traverse 
 was allowed to the return to a writ of mandamus in proceedings 
 against persons claiming to hold public offices instituted by any 
 persons to obtain admission or restoration to office or to the fran- 
 chises of being burgesses or freemen. A peremptory writ of man- 
 damus will rarely if ever be issued without notice. 16 The writ 
 and other proceedings upon an application for a mandamus to 
 compel the levy of a tax under a judgment against a public cor- 
 poration should ordinarily be addressed by name to the officers 
 whose duty it is to act, and also describe them in their official 
 capacity. 17 A mandamus is sufficient when merely addressed to 
 a public officer by his official title without naming him, 18 although 
 the corporation has another title under which its charter gives it 
 power to be sued. 19 The writ may also be addressed to the cor- 
 poration itself, as in the case of a county. 20 When a State statute 
 
 10 Riggs v. Johnson County, 6 Wall. u High on Extraordinary Remedies, 
 160 ; Weber v. Lee County, 6 Wall. 210; § 459. 
 
 Lansing v. County Treasurer, 1 Dill. 522 ; 15 Enfield v. Hall, 1 Lev. Part II. 238 ; 
 Laird v. Mayor of De Soto, 25 Fed. R. 76. Lunt v. Davison, 104 Mass. 498 ; High on 
 
 11 Moran v. City of Elizabeth, 9 Fed. R. Extraordinary Remedies, § 457. 
 
 72. 16 Fairbanks v. Amoskeag Nat. Bank, 
 
 i 2 U. S. v. Elizabeth, 9 Reporter, 232; 30 Fed. R. 602. 
 
 U. S. v. Auditors of Brooklyn, 8 Fed. R. 17 Thompson v. U. S., 103 U. S. 480, 
 
 473 ; U. S. v. City of New Orleans, 17 484 ; The Mayor v. Lord, 9 Wall. 409. 
 
 Fed. R. 483. 18 Thompson v. U. S., 103 U. S. 480 ; 
 
 13 Poultney v. City of Lafayette, 12 The Mayor v. Lord, 9 Wall. 409. 
 
 Pet. 472 ; U. S. v. Union P. R. R. Co., 19 The Mayor v. Lord, 9 Wall. 409. 
 
 Dill. 527. See High on Extraordinary 20 Commissioners v. Sellew, 99 U. S. 
 
 Remedies, Part I., ch. viii. 624. 

 
 § 364] WRITS OF CERTIORARI. 539 
 
 provides that service of process against a public board may be 
 made upon its clerk, service of the writ upon that clerk will be 
 sufficient to justify punishment of the individual members of the 
 board for contempt if they disobey. 21 Amendments of the pro- 
 ceedings including the return may be allowed. 22 The writ of 
 mandamus may direct the performance of a series of acts by 
 different persons. 23 It seems that certiorari and mandamus can- 
 not be joined in one writ. 24 
 
 When the duty sought to be enforced is one neglected by a 
 public corporation, 25 and not the purely personal default of a 
 public officer, 26 the death, resignation, or expiration of the term 
 of office, of the officer against whom the proceedings are directed 
 will not abate them, and the writ may be issued or enforced 
 against his successor. 27 
 
 It is no defence to an application for a mandamus to compel 
 the levy of a tax that, since the suit in which was entered the 
 judgment sought to be enforced, a State court has enjoined the 
 levy. 28 Disobedience to the writ is punished by attachment for 
 contempt. 29 Directions in the writ for the performance of acts 
 not authorized by law are void, 30 and disobedience thereto is con- 
 sequently not punishable. 31 Upon appeal from the order grant- 
 ing a mandamus to enforce a judgment, no question adjudicated 
 in that judgment can be questioned, 32 unless " where application 
 is made to collect judgments by process not contained in them- 
 selves, and requiring, to be sustained, reference to the alleged 
 cause of action upon which they are founded ; " ffl but it is com- 
 petent to show that the judgment is void. 34 
 
 21 Commissioners v. Sellew, 99 U. S. Thompson v. U. S., 103 U. S. 480, 484, 
 624. But see U. S. v. Labette County, 7 485. 
 
 Fed. R. 318. * 27 Secretary v. McGarrahan, 9 Wall. 
 
 22 Supervisors r. Durant, 9 Wall. 736 ; 298; U. S. v. Boutwell, 17 Wall. 604; 
 United States v. Union Pacific Rail- Thompson v. U. S., 103 U. S. 480, 48 1, 
 road Company, 4 Dill. 479; 8. 0. as 28 Riggs v. Johnson County, 6 Wall. 
 Union Pacific Railroad Company v. Hall, 166. 
 
 91 U. S. 343. 29 Commissioners v. Sellew, 99 U. S. 
 
 23 Labette County Comm'rs v. U. S., 624; U. S. v. Lee County, 2 Biss. 77. 
 112 U. S. 217. 80 U. S. v. Supervisors of Labette 
 
 '-» Fairbanks v. Amoskeag Nat. Bank, County, 7 Fed. R. 318. 
 30 Fed. R. 602. 31 U. S. v. Supervisors of Labette 
 
 25 Commissioners v. Sellew, 99 U. S. County, 7 Fed. R. 318. 
 024 ; Thompson v. U. S., 103 U. S. 480, 3 - Harshman v. Knox County, 122 U. S. 
 
 485 ; Hollen Parker, Petitioner, 131 U. S. 306. 
 221. 33 Brownsville v. Loague, 129 U. S. 
 
 29 Secretary v. McGarrahan, 9 Wall. 493, 505. 
 298 ; U. S. v. Boutwell, 17 Wall. 604 ; ** Moore v. Edgefield, 32 Fed. R. 498.
 
 540 PRACTICE AT COMMON LAW. [CHAP. XXVIII. 
 
 § 365. Writs of Certiorari. — The writ of certiorari is a writ 
 issued from a superior to an inferior court, ordering the latter to 
 certify to the former certain proceedings before it. 1 At common 
 law, the writ was issued for two purposes : as an appellate pro- 
 ceeding for the re-examination of some action of an inferior tribu- 
 nal ; and as auxiliary process to enable a court to obtain further 
 information in respect to some matter already before it for adjudi- 
 cation. 2 The writ can be issued from a Federal court onty for 
 the latter purpose. 3 The Supreme Court has no original juris- 
 diction to issue a writ of certiorari to examine the proceedings 
 of a military commission. 4 A Circuit Court of the United States 
 cannot thus bring before it the proceedings before a commssioner 
 which it is not authorized to correct. 5 A Circuit Court cannot 
 by certiorari remove a cause from a District Court of the United 
 States before final judgment ; but by entering his appearance and 
 pleading in the Circuit Court without objection, a party waives 
 his right to object subsequently to such a proceeding. 6 Any court 
 of the United States may issue a writ of certiorari as ancillary to a 
 writ of habeas corpus? If the record sent up on appeal pr writ of 
 error is incomplete, it may be corrected by certiorari? Proceed- 
 ings that have taken place since the appeal or writ of error can- 
 not be thus removed. 9 An omission to make a finding cannot be 
 thus corrected. 10 The Supreme Court may b}' order require the 
 Court of Claims to find a specific fact. 11 An error in a bill of ex- 
 ceptions cannot be thus corrected; 12 although the judge who set- 
 tled the same may himself do so. 13 It seems that certiorari and 
 mandamus cannot be joined in one writ. 14 The return to the writ 
 of certiorari should be by the clerk under his hand and the seal of 
 the court. 15 The return need not be signed by the judge. 16 
 
 § 365. 1 U. S. v. Young, 94 U. S. 258, 259. Rio Grande, 19 Wall. 178 ; Field v. Mil- 
 See Harris v. Barber, 129 U. S. 366, 369. ton, 3 Cranch, 514. 
 
 2 U. S. v. Young, 94 U. S. 258, 259. 9 U. S. v. Young, 94 U. S. 258; U. S. 
 
 3 U. S. R. S. § 716 ; U. S. v. Young, v. Adams, 9 Wall. 661. 
 
 94 U. S. 258, 260 ; Ex parte Van Orden, 10 U. S. v. Adams, 9 Wall. 661. 
 
 3 Blatchf. 166 ; In re Martin, 5 Blatchf. " TJ. S. v. Adams, 9 Wall. 661. 
 
 303; Fowler v. Lindsey, 3 Dall. 411. 12 Stimpson v. Westchester R. R Co., 
 
 4 Ex parte Vallandigham, 1 Wall. 243. 3 How. 553. But see Morgan v. Curte- 
 6 Ex parte Van Orden, 3 Blatchf. 166. nius, 19 How. 8. 
 
 6 Patterson v. U. S., 2 Wheat. 221. 13 Stimpson v. Westchester R. R. Co., 
 
 7 Ex parte Burford, 3 Cranch, 448; 3 How. 553. 
 
 Ex parte Bollman, 4 Cranch, 75; In re u Fairbanks v. Amoskeag Nat. Bank, 
 
 Martin, 5 Blatchf. 303 ; Ex parte Stupp, 30 Fed. R. 602. 
 
 12 Blatchf. 501. 15 Fenemore ;-. U. S.,3 Dall. 360, all note. 
 
 8 TJ. S. v. Gomez, 1 Wall. 690 ; The 16 Stewart v. Inglise, 9 Wheat. 526. 

 
 § 366] WRITS OF HABEAS CORPUS IN GENERAL. 541 
 
 § 366. Writs of Habeas Corpus in General. — The writ of habeas 
 corpus is a high prerogative writ known to the common law, di- 
 recting the production of a prisoner before a court or magistrate, 
 the great object of which is the liberation of those who may be 
 imprisoned without sufficient cause. 1 It is then termed a writ 
 of habeas corpus ad subjiciendum. 2 There were also by the 
 common law four other writs of habeas corpus : the habeas corpus 
 ad respondendum, ad satisfaciendum, and ad faciendum et recipi- 
 endum, which removed a prisoner for debt from an inferior to a 
 superior court for further proceedings in the same or a subse- 
 quent action; 3 and the habeas corpus ad prosequendum, testifican- 
 dum, deliberandum, which removed a prisoner for debt or crime 
 in order to prosecute or testify in another court. 4 The habeas 
 corpus cum causa is used in the removal of criminal proceedings 
 from the State courts to the Circuit Courts of the United States. 6 
 
 The Supreme Court, the Circuit Courts and the District 
 Courts of the United States have power to issue the writ of 
 habeas corpus? Except in cases affecting ambassadors, other 
 public ministers, or consuls, the Supreme Court can only issue 
 the writ of habeas corpus for a review of the judicial decision 
 of some inferior officer or court. 7 Consequently, the Supreme 
 Court cannot issue the writ to inquire into the legality of an 
 arrest by a municipal police officer under a warrant issued by 
 a State or municipal police judge. 8 
 
 Any justice or judge of any of those courts has power to issue 
 a writ of habeas corpus for the purpose of an inquiry into the 
 cause of a restraint of liberty within his jurisdiction. 9 A. justice 
 of the Supreme Court may grant the writ and hear argument 
 on the return in any part of the United States. 10 No Federal 
 court or judge has power to discharge by a writ of habeas corpus 
 a prisoner in jail, unless such prisoner is in custody under or by 
 color of the authority of the United States ; or is committed for 
 trial before some court of the United States; or is in custody 
 for an act done or omitted in pursuance of a law of the United 
 
 § 366. i Ex parte Watkins, 3 Pet. 193, 6 U. S. R. S. §§ 642, 613. 
 
 202. « U. S. R. S. § 751. 
 
 - 3 Blackstone's Commentaries, 131. 7 Ex parte Hung Hang, 108 U. S. 552; 
 
 8 3 Bl. Com. 129, 130; Ex parte Bollman Ex parte Barry, 2 I low. 66. 
 
 and Ex parte. Swartwout, 3 Crancli, 75, 97. 8 Ex parte Hung Hang, 108 U. S. 552. 
 
 4 3 Bl. Com. 130 ; Ex parte Bollman 9 U. S. R. S. § 762. 
 
 and Ex parte Swartwout, 3 Cranch, 75, 97. 10 Ex parte Clarke, 100 U. S. 399, 101.
 
 542 PRACTICE AT COMMON LAW. [CHAP. XXVIII. 
 
 States, or of an order, process, or decree of a court or judge 
 thereof; or is in custody, in violation of the Constitution or a 
 law or treaty of the United States ; or, being a revenue officer 
 of the United States, is in custody on account of any act done 
 or omitted under color of his office or under color of any revenue 
 law ; or, being a subject or citizen of a foreign state and domi- 
 ciled therein, is in custody for an act done or omitted under any 
 alleged right, title, authority, privilege, protection, or exemption 
 claimed under the commission, or order, or sanction of any for- 
 eign state or under color thereof, the validity and effect of which 
 depend upon the law of nations ; or unless the writ is necessary 
 to bring the prisoner into court to testify. 11 
 
 The writ of habeas corpus ad subjiciendum cannot be issued 
 in favor of a person unless he is actually restrained of his liberty, 
 or is threatened with such restraint by a person with the present 
 means of enforcing it. 12 Merely moral duress is insufficient. 
 Thus, when the party seeking the writ was a naval officer in 
 Washington, and the basis of his application was a letter from 
 the Secretary of the Navy enclosing charges against him, together 
 with a notice of the session of a court-martial to consider them, 
 and concluding : " You are hereb} 7 placed under arrest, and you 
 will confine yourself to the limits of Washington ; " it was held 
 that the petitioner was not under such restraint as to warrant 
 the issue of the writ. 13 The validity of his conviction of crime 
 cannot be thus tested by a person who has been pardoned and is 
 not restrained of his liberty, although he has refused to accept 
 such pardon. 14 
 
 The writ of habeas corpus cannot be used to correct errors 
 and irregularities, however flagrant, committed within the sphere 
 of the authority of the court. 15 But a party imprisoned under 
 an order made by a court of the United States where it does not 
 possess jurisdiction of either the person or the subject-matter, 
 can review that order by such a writ. 10 It has been said that 
 " if a judgment or any part thereof is void, either because 
 
 11 U. S. R. S. §§ 753, 641, 643. See also Parks, 93 TJ. S. 18 ; Ex parte Curtis, 106 
 
 18 St. at L. p. 157, ch. 130, § 8 ; 1 Supp. U. S. 371 ; Ex parte Bigelow, 113 U. S. 328. 
 
 U. S. It. S. p. 165. 1B Ex parte Lange, 18 Wall. 163; Ex 
 
 i- Wales r. Whitney, 1 14 U.S. 564, 572. parte Siebold, 100 U. S. 371; Ex parte 
 
 1 3 Wales r. Whitney, 114 U. S. 564. Rowland, 104 TJ. S. 604; In re Ayers, 
 
 « Be Callicot, 8 Blatchf. 89. 123 U. S. 443, 485; In re Sawyer, 124 
 
 !S Ex parte Terry, 128 U. S. 289, 304 ; TJ. S. 200, 221 ; Ex parte Fisk, 113 U. S. 
 
 Ex parte Siebold, 100 U. S. 371 ; Ex parte 813 ; Ex parte Wilson, 114 U. S. 417.
 
 § 366] WRITS OF HABEAS COEPUS IN GENERAL. 543 
 
 the court that renders it is not competent to do so for want 
 of jurisdiction, or because it is rendered under a law clearly 
 unconstitutional, or because it is senseless, and without mean- 
 ing, and cannot be corrected or for any other cause then a 
 party imprisoned by virtue of such void judgment may be dis- 
 charged on habeas corpus:' 17 After judgment of conviction, a 
 prisoner cannot be released by a writ of habeas corpus upon the 
 ground that the facts charged in the indictment do not constitute 
 a crime within the meaning of the statute; 18 nor because an im- 
 proper person sat on the grand jury which indicted him ; 19 nor 
 for errors committed in the course of his trial, — even, it has 
 been held, if these errors were infractions of the Constitution, 
 such as a refusal to sustain a plea of a former conviction for the 
 same cause, 20 provided the error does not clearly appear upon the 
 record ; 21 nor because he was refused compulsory process for the 
 attendance of witnesses on his behalf. 22 The rule that, unless the 
 contrary appears on the record, a cause is deemed to be with- 
 out the jurisdiction of a Circuit or District Court of the United 
 States, has no application where the judgment of such a court 
 is attacked collaterally by habeas corpus*® or otherwise. 24 
 
 A prisoner may be discharged by a writ of habeas corpus, when 
 he has been convicted in a court of the United States of a cap- 
 ital or infamous crime without having any indictment found 
 against him. 25 A crime is considered infamous when punish- 
 able by imprisonment in a State prison or penitentiary with or 
 without hard labor. 26 A prisoner may be discharged by habeas 
 corpus when his conviction was in a court of the United States, 
 under an indictment, the body of which was amended by the 
 court; 27 or under an indictment based upon a city ordinance, 28 
 or a statute, State or Federal, which is repugnant to the Federal 
 Constitution; 29 or under a judgment imposing a second penalty 
 
 17 Bradley, J., in U. S. v. Patterson, Cranch, 173, 185; McCormiek v. Sul- 
 
 29 Fed. R. 775, 778. livant, 10 Wheat. 102, 199; Galpin v. 
 
 is Ex parte Parks, 93 U. S. 18 ; Ex parte Page, 18 Wall. 350, 305. 
 
 Watkins, 3 Pet. 193, 203 ; Ex parte Yar- 2& Ex parte Wilson, 114 U. S. 417. 
 
 brough, 110 U. S. 651, 654. 2S Ex parte Wilson, 114 U. S. 417; 
 
 19 Ex parte Harding, 120 U. S. 782. Mackin i». U. S., 117 U. S. 348. 
 
 2" Ex parte Bigelow, 113 U. S. 328. 27 Ex parte Bain, 121 U. S. 1. 
 
 But see Nielsen, Petitioner, 131 U. S. 176. 28 The Stockton Laundry Case, 20 
 
 21 Nielsen, Petitioner, 131 U. S. 170. Fed. R. 611. 
 
 22 Ex parte Harding, 120 U. S. 782. 29 Ex parte Sieliold, 100 U. S. 371 ; I' r 
 
 23 Cuddy, Pet'r, 131 U. S. 280, 285. parte Clarke. 100 U. S. 399 ; Ex parte 
 2* Kempe's Lessee v. Kennedy, 5 Curtis, 100 U. S. 371.
 
 544 
 
 PRACTICE AT COMMON LAW. [CHAP. XXVIII. 
 
 or different penalty from that previously imposed upon the same 
 party for the same offence, although the former judgment was 
 entered at the same term as the latter; 30 or under a judgment 
 entered upon a conviction under several indictments, and impos- 
 ing more than one punishment for a continuous offence ; S1 or 
 for contempt of a court of the United States by disobedience to 
 an order beyond the power of such court ; ® or for contempt of a 
 court of the United States for an act not committed in the pres- 
 ence of the court, when the prisoner has been given no hearing ; ^ 
 or, before conviction, when held under a warrant issued by a 
 United States judge or commissioner, under a complaint which 
 does not state an offence under a statute of the United States, 24 
 or one of which such judge or commissioner has jurisdiction ; 35 or, 
 in case of extradition proceedings, under a complaint which does 
 not state an extraditable offence; 36 but in neither of the last 
 two cases will the court on habeas corpus review the decision of 
 a disputed question of fact. 37 Whether by writ of habeas corpus 
 any of the Federal courts or judges will take cognizance of a 
 controversy between parties who are citizens of different States, 
 as to the right to the custody of a child, is, under the authorities, 
 a doubtful question. 38 A habeas corpus proceeding cannot be 
 removed from a State to a Federal court. 39 A State court has 
 not the power to grant a writ of habeas corpus to a person 
 held under color of authority from the United States. 40 When 
 such a writ is issued by a State court, the person to whom it is 
 directed should make a return stating that he holds the prisoner 
 under the authority of the United States, but otherwise disregard 
 
 v Ex parte Lange. 18 Wall. 163 ; Neil- 
 sen, Petitioner, 131 U. S. 176. 
 
 31 In re Snow, 120 U. S. 274. 
 
 82 Ex parte Rowland, 104 U. S. 604 ; 
 Ex parte Fisk, 113 U. S. 713; Re Avers, 
 123 U. S. 443; In re Sawyer, 124 U. S. 
 200 ; Cuddy, Petitioner, 131 U. S. 280. 
 
 33 Ex parte Terry, 128 U. S. 289. 
 
 34 Ex parte Bollman and Ex parte 
 Swartwout, 4 Cranch, 75 ; Ex parte 
 Watkins, 3 Pet. 201; Ex parte Jenkins, 
 2 Wall. C. C. 521, 528; In re Martin, 
 5 Blatchf. 303. 
 
 35 /„ rP Ferez, 7 Blatchf. 34; In re 
 Cross. 20 Fed. R. 824 ; U. S. v. Rogers, 
 23 Fed. R. 658; In re Kelly, 25 Fed. R. 
 268. 
 
 36 In re Ferez, 7 Blatchf. 34; In re 
 Kelly, 25 Fed. R. 268 ; Ex parte Lane, 
 6 Fed. R. 34. 
 
 37 Benson v. McMahon, 127 U. S. 457 ; 
 In re Fowler, 4 Fed. R. 303 ; In re Byron, 
 18 Fed. R. 722 ; In re Roberts, 24 Fed. R. 
 
 132. 
 
 38 Bennett v. Bennett, Deady, 299, 
 holds that they can. See also U. S. v. 
 Green, 3 Mason, 482 ; U. S. ex rel. Wheeler 
 v. Williamson, 4 Am. L. Reg. 5. Contra, 
 Ex parte Evert, 1 Bond, 197 ; Ex parte 
 Barry, cited in argument of counsel in 
 Barrv v. Mercein, 5 How. 103, 104. 
 
 89 Kurtz o. Moffitt. 115 U. S 487. 
 *o Ableman v. Booth, 21 How. 506; 
 Tarble's Case, 13 Wall. 397.
 
 § 367.] PEACTICE ON APPLICATION FOR HABEAS CORPUS. 545 
 
 the writ. 41 A State court may by a writ of habeas corpus examine 
 the legality of the detention of a prisoner by a person appointed 
 by the governor of a State in extradition proceedings. 42 
 
 § 367. Practice on Application for Habeas Corpus. — The appli- 
 cation for a writ of habeas corpus must be made b} r a written com- 
 plaint addressed to the court or judge from whom the writ is 
 sought, and sworn to by the complainant, setting forth the 
 facts concerning the detention of the party restrained, in whose 
 custody he is detained, and by virtue of what claim or authority, 
 if known. 1 It seems that it is not necessary that the application 
 be made by the prisoner or by some one whom he has authorized 
 to represent him, but that the writ may be granted at the request 
 of a stranger who has no legal interest in the matter ; 2 but it 
 is the safer practice for the complaint in such a case to show 
 some good reason for not obtaining the consent of the party de- 
 tained. An early case holds that when the prisoner has been 
 committed to jail by a public officer, the complaint should be 
 accompanied by a copy of the commitment, or an affidavit that 
 the jailer has refused a copy. 3 The petition must show the juris- 
 diction of the court or judge to grant the writ. 4 
 
 When the proceedings of an inferior tribunal are reviewed by 
 a writ of habeas corpus, a writ of certiorari issues with it and 
 should be asked in the complaint. 5 
 
 The court or judge to whom such an application is made should 
 forthwith grant a writ of habeas corpus, unless it appears from the 
 petition that the party is not entitled thereto. 6 A decision under 
 one writ refusing to discharge the prisoner has been held to be 
 no bar to the issue of any number of subsequent writs. 7 Instead 
 of issuing the writ in the first instance the court may enter a rule 
 to show cause why it should not issue. 8 The Supreme Court 
 will ordinarily refuse to issue the writ in a case of which a Cir- 
 
 41 Ableman v. Booth, 21 How. 506. 5 Ex parte Burford, 3 Cranch, 448 ; 
 
 42 Robb v. Connolly, 111 U. S, 624; Ex parte Bollman, 4 Cranch, 76 ; Er parte 
 Roberts v. Reilly, 116 U. S. 80. 94. Martin, 5 Blatchf. 30:; ; /,» re btupp, 12 
 
 § 367. i U. S. R. S. § 754. Blatchf. 501. See § 865. 
 
 2 Ex parte Des Rochers, 1 McAllister, " U. S. R. S. § 755. 
 
 68; In re Hoyle, 12 Chic. L. N. 279; s. c. ' Ex parte Kaine, 3 Blatchf. 1. But see 
 
 9 Am. L. Rec.65; Re Ferrens, 3 Ben. 442. s. c. 14 How. 103; Ex part? Robinson, 6 
 
 But see Re Poole, 2 McArthur (D. C), 583. McLean, 355 ; Ex parte Cuddy, 40 Fed. R. 
 
 3 Harrison's Case, 1 Cranch C C. 159 ; G2. 
 
 U. S. v. Bollman, 1 Cranch C.C 373. 8 Ex parte Milhurn, 9 Pet. 704, note; 
 
 4 Ex parte Milhurn, 9 Pet. 704, note; Trial of Vallandigham, 45. 
 Cuddy, Petitioner, 131 U. S. 280.
 
 546 PRACTICE AT COMMON LAW. [CHAP. XXVIII. 
 
 cuit Court of the United States has jurisdiction, unless it is in- 
 tended to review a decision of such Circuit Court. 9 The Supreme 
 Court 10 and the iuferior courts of the United States will ordinarily 
 refuse to discharge by habeas corpus a prisoner held under indict- 
 ment by a State court before trial of the indictment, and may even 
 do so after his conviction, if he has still a remedy by writ of error 
 or appeal in the courts of such State. 11 
 
 The writ when issued from the court, like other writs issued 
 out of the Federal courts, must bear the seal of the court, be 
 signed by the clerk, and bear teste of the presiding justice of the 
 Supreme Court when issued therefrom or from a Circuit Court, 
 and when issued from a District Court, of the judge thereof, or 
 when that office is vacant, the clerk thereof. 12 The writ must be 
 directed to the person in whose custody the prisoner is detained. 13 
 When the writ is issued in the case of an alien prisoner domi- 
 ciled in a foreign State to which he owes allegiance, who is in 
 custody by or under the law of any one of the United States, or 
 process founded thereon, on account of anj r act done or omitted 
 under any alleged right, title, authority, privilege, protection, or 
 exemption, claimed under the commission, or order, or sanction 
 of any foreign State, or under color thereof, the validity and 
 effect of which depend on the law of nations ; notice of the said 
 proceeding, to be prescribed by the court or judge issuing the writ, 
 must be served on the Attorney-General or other officer prosecut- 
 ing the pleas of said State; and due proof of such service must be 
 made to the court or judge before the hearing. 14 Otherwise, such 
 notice is not necessary, although the prisoner is confined under 
 the judgment or order of a State court or magistrate. 15 
 
 The person to whom the writ is directed must make a due re- 
 turn thereof within three days thereafter, unless the party be 
 detained beyond the distance of twenty miles ; and if beyond 
 that distance and not beyond the distance of a hundred miles, 
 within ten days ; and if beyond the distance of a hundred miles, 
 within twenty days. 16 The return must be in writing, signed by 
 
 9 Ex parte Mirzan, 110 U. S. 584 ; Ex " U. S. R. S. § 755. 
 
 parte Royall, 117 U. S. 254; Wales v. M U. S. R. S. § 762. 
 
 Whitney," 114 U. S. 564. 15 Matter of Leary, 10 Ben. 197. But 
 
 i° Ex parte Royall, 117 U. S. 254. see United States v. Jailer of Fayette 
 
 11 Ex parte Royall, 117 U. S. 254. But County, 2 Abb. U. S. 265. 
 see In re Reinitz,*30 Fed. R. 204. 16 U. S. R. S. § 756. 
 
 12 U. S. R. S. §§ 911, 912; Matter of 
 Kaine, 14 How. 103, 119.
 
 § 367.] PRACTICE ON APPLICATION FOR HABEAS CORPUS. 547 
 
 the person to whom the writ is directed, 17 and certifying the true 
 cause of the prisoner's detention. 18 The person making the re- 
 turn must at the same time bring the body of the prisoner before 
 the judge who granted the writ. 19 A failure to do this or to 
 make a return may be punished by attachment. 20 A false re- 
 turn may be similarly punished. 21 If the prisoner is no longer 
 under the control of the person to whom the writ is addressed, the 
 latter must declare, so far as he knows, what has become of him. 22 
 
 Pending the hearing upon the return to a writ of habeas cor- 
 pus the prisoner is in the custody of the court or judge that 
 issued the writ, and may be admitted to bail or remanded to the 
 same jail from which he came, or placed in the custody of the 
 marshal. 23 He cannot, while in such custody, be arrested on a 
 second warrant. 24 When the writ is returned, a day must be set 
 for the hearing of the cause not exceeding five days after the 
 return, unless the party petitioning requests a longer time. 25 
 When the writ is granted by a justice of the Supreme Court in a 
 case of which that court has jurisdiction, and the proceeding is in 
 its nature appellate, that is, to review the proceedings of an infe- 
 rior court, the justice may postpone the hearing until a session of 
 the whole court. 26 The applicant for the writ or the party im- 
 prisoned or restrained may deny under oath any of the facts set 
 forth in the return, or may allege any other material facts. 27 The 
 court or judge may allow the return and all suggestions against 
 it to be amended before or after the same are filed. 28 The court 
 or judge, upon the day set for the hearing, must proceed in a 
 summary way to determine the facts, by hearing the testimony 
 and arguments, and thereupon make an order discharging the 
 prisoner or remanding him to the custody from which he was 
 removed by the writ. 29 The prisoner must be discharged unless 
 the return shows that his imprisonment was lawful at the time 
 of the service of the writ. 30 A return showing that, since the 
 
 17 Seavey v. Seymour, 3 Cliff. 439. « Matter of Kaine, 14 How. 103. 
 
 18 U. S. R. S. § 757. 24 In re Farez, 7 Blatchf. 345. 
 
 19 U. S. R. S. § 758. 25 U. S. R. S. § 759. 
 
 20 United States v. Bollman, 1 Cranch 26 Ex parte Clarke, 100 U. S. 399, 403. 
 C. C. 373; United States v. Green, 3 But see Matter of Kaine, 14 How. 103. 
 Mason, 482. 27 u. S. R. S. § 7G0. 
 
 21 United States v. Davis, 5 Cranch 28 U. S. R. S. § 7G0. 
 C. C. 622; United States v. Williamson, 29 u. S. R. S. § 761. 
 
 3 Am. L. Reg. 729 ; s. c. 4 Am. L. Reg. 5. 8 » In re Boo Woon, 18 Fed. R. 898. But 
 
 22 United States v. Williamson, 4 Am. see U. S. v. Patterson, 29 Fed. R. 775. 
 L. Reg. 5.
 
 548 
 
 PRACTICE AT COMMON LAW. 
 
 [CHAP. XXYIII. 
 
 service of the writ, process, which authorizes his imprisonment, 
 has been issued, is insufficient. 31 
 
 § 368. Appeals in Habeas Corpus Proceedings. — From the final 
 decision of a Circuit Court of the United States, upon an appli- 
 cation for a writ of habeas corpus, or upon such writ when 
 issued, an appeal may be taken to the Supreme Court, in the 
 case of any person alleged to be restrained of his liberty in viola- 
 tion of the Constitution or of any law or treaty of the United 
 States ; and in the case of a prisoner who, being a subject or 
 citizen of a foreign state and domiciled therein, is committed or 
 confined, or in custody by or under the authority or law of the 
 United States, or of any State, or process founded thereon, for or 
 on account of any act done or omitted under any alleged 
 right, title, authority, privilege, protection, or exemption, set up 
 or claimed under the commission, order, or sanction of any 
 foreign state or sovereignty, the validity and effect whereof 
 depend upon the law of nations, or under color thereof. 1 No 
 appeal lies from a decision of a judge of a Circuit Court of the 
 United States; 2 nor will the Supreme Court review a decision of 
 a Circuit Court in habeas corpus proceedings upon a certificate of 
 division of opinion between the judges, when no final judgment 
 has been entered. 3 From the final decision of a justice or judge 
 of the United States inferior to the Circuit Court, upon an appli- 
 cation for a writ of habeas corpus or upon such writ when issued, 
 an appeal may be taken to the Circuit Court for the district in 
 which the cause is heard, under the same circumstances as would 
 authorize an appeal from a Circuit Court to the Supreme Court. 4 
 No new evidence can be offered upon such appeals, except such 
 evidence as was offered and excluded in the court below. 5 Pend- 
 ing an appeal from a final decision declining to grant a writ of 
 habeas corpus, the custody of the prisoner must not be disturbed. 6 
 Pending an appeal from a final decision discharging the writ after 
 it has been issued, the prisoner must be remanded to the custody 
 from which he was taken, unless, for good cause shown, he is 
 detained in the custody of the court or judge that granted the 
 
 si In re Doo Woon, 18 Fed. R. 898. 
 But see TJ. S. v. Patterson, 29 Fed. R. 
 775. 
 
 § 368. 1 TJ. S. R. S. § 764, as amended 
 by 24 St. at L. ch. 353, p. 457. 
 
 2 Carper v. Fitzgerald, 121 U. S. 87. 
 
 3 Ex parte Tom Ting, 108 TJ. S. 556 ; 
 Ex parte Cota, 110 U. S. 385. 
 * TJ. S. R. S. § 763. 
 
 5 Seavey v. Seymour, 3 Cliff. 439. 
 
 6 Supreme Court Rule 34, 117 U. S 
 708; U. S. R. S. § 765.
 
 § 369.] ATTACHMENT OF PROPERTY. 549 
 
 writ, or is enlarged upon recognizance, as described in the next 
 sentence. 7 Pending an appeal from the final decision of any 
 court or judge discharging a prisoner upon habeas corpus, he 
 must be enlarged upon recognizance for appearance to answer 
 the judgment of the appellate court, with a surety, unless for 
 special reasons surety is not required. 8 Pending such proceed- 
 ings and appeal and until final judgment therein, and after final 
 judgment of discharge, any proceeding for any matter so heard 
 and determined, or in process of being heard and determined, 
 taken in any State court or by or under the authority of any State 
 against the person whose body is the subject of the writ, shall be 
 deemed null and void. 9 Other proceedings upon such an appeal, 
 including the time when the transcript is to be filed in the appellate 
 court, are regulated by the court or judge hearing the cause. 10 The 
 appeal may thus be heard at a term pending when it is taken. 11 
 
 § 369. Attachment of Property. — A Federal statute passed 
 June 1, 1872, provides that " in common-law causes in the Cir- 
 cuit and District Courts the plaintiff shall be entitled to similar 
 remedies, by attachment or other process, against the property of 
 the defendant, which are now provided by the laws of the State 
 in which such court is held for the courts thereof; and such 
 Circuit or District Courts may, from time to time, by general 
 rules, adopt such State laws as may be in force in the States 
 where they are held in relation to attachments and other process, 
 provided, that similar preliminary affidavits or proofs, and sim- 
 ilar security, as required by such State laws, shall be first furnished 
 by the party seeking such attachment or other remedy." : Most 
 of the Circuit and District Courts have adopted by their rules 
 the State laws in force within their respective districts. 2 These 
 rules and the statute do not give a Circuit or District Court 
 power thus to acquire jurisdiction over a person not a resident of 
 the district. 3 Neither a State nor a Federal court can attach be- 
 fore judgment the property of a national banking association. 4 
 
 7 Supreme Court Rule 34, 117 U. S. 2 See, for example, the Rules of tlie 
 708 ; U. S. R. S. § 765. U. S. C. C, S. D. N. Y., adopted October 
 
 8 Supreme Court Rule 34, 117 U. S. 11, 1878, and Dec. 29, 1881. 
 
 708 ; U. S. R. S. § 765. 3 Sadlier v. Fallon, 2 Curt. 579 ; Nazro 
 
 9 U. S. R. S. § 766. v. Cragin, 3 Dill. 474 ; Chittenden v. Dar- 
 10 U. S. R. S. § 768. den, 2 Woods, 437 ; Harland v. United 
 " Roberts v. Reilly, 116 U. S. 80. Lines Tel. Co.,40 Fed. R. 308. 
 
 § 369. i U. S. R. S. § 915; 17 St. at L. " U. S. R. S. § 5242 ; Pacific National 
 
 ch. 255, p. 197. Bank v. Mixter, 124 U. S. 721.
 
 550 PRACTICE AT COMMON LAW. [CHAP. XXVIII. 
 
 § 370. Arrests. — The Revised Statutes regulate arrests in civil 
 actions as follows : " No person shall be imprisoned for debt in 
 auy State, on process issuing from a court of the United States, 
 where, by the laws of such State, imprisonment for debt has been 
 or shall be abolished. And all modifications, conditions, and 
 restrictions upon imprisonment for debt, provided by the laws of 
 any State, shall be applicable to the process issuing from the 
 courts of the United States to be executed therein ; and the 
 same course of proceedings shall be adopted therein as may be 
 adopted in the courts of such State." * " When any person is 
 arrested or imprisoned in any State, on mesne process or execu- 
 tion issued from any court of the United States, in any civil 
 action, he shall be entitled to discharge from such arrest or im- 
 prisonment in the same manner as if he were so arrested and im- 
 prisoned on like process from the courts of such State. The 
 same oath may be taken, and the same notice thereof shall be 
 required, as may be provided by the laws of such State, and the 
 same course of proceedings shall be adopted as may be adopted 
 in the courts thereof. But all such proceedings shall be had 
 before one of the commissioners of the Circuit Court for the dis- 
 trict where the defendant is so held." 2 " Persons imprisoned on 
 process issuing from any court of the United States in civil 
 actions, as well at the suit of the United States as at the suit of 
 any person, shall be entitled to the same privileges of the yards of 
 the respective jails as persons confined in like cases on process from 
 the courts of the respective States are entitled to, and under the 
 like regulations and restrictions." 3 The effect of these provisions 
 is to make the practice and proceedings in arrests in civil actions 
 in the Federal, Circuit, and District Courts almost exactly similar 
 to those in the State courts held in their respective districts. 4 
 
 § 371. Consolidation at Law and in Equity. — The Revised 
 Statutes provide that when causes of a like nature or relative 
 to the same question are pending before a court of the United 
 States or of any Territory, the court may make such orders and 
 
 § 370. 1 U. S. R. S. § 990. See In re Gray v. Muiiroe, 1 McLean, 528 ; Low v. 
 
 Bergen, 2 Hughes, 513 ; Low v. Durfee, Durfee, 5 Fed. R. 25(3 ; United States r. 
 
 5 Fed. R. 256 ; Catherwood v. Gapete, Tetlow, 2 Lowell, 159 ; In re Bergen, 2 
 
 2 Curt. 94 ; Moan v. Wilmarth, 3 W. & Hughes, 513. But see Duncan v. Darst, 
 
 M. 399. 1 How. 301 ; In re Watson Freeman, 2 
 
 2 U. S. R. S. § 991. Curt. 491; United States v. Knight, 14 
 
 3 U. S. R. S. § 992. Pet. 301. 
 * Moan v. Wilmarth, 3 W. & M. 399 ;
 
 5 372] EVIDENCE, TESTIMONY, AND DEPOSITIONS. 551 
 
 rules concerning proceedings therein as may be conformable to 
 the usages of courts for avoiding unnecessary costs or delay in 
 the administration of justice, and may consolidate said causes 
 when it appears reasonable to do so. 1 This statute has been held 
 to apply to suits in equity as well as at law. 2 Where a railway 
 company filed a bill in a State court asking that its property be 
 placed in the hands of a receiver, and the trustee of a mortgage 
 upon its property after removal filed a cross-bill in the Federal 
 court to foreclose the mortgage, and then began a foreclosure 
 suit in the State court, which was afterwards removed ; the 
 Federal court consolidated all three proceedings. 3 The court 
 may order several cases involving substantially the same evi- 
 dence to be tried together, and direct the jury to bring in sepa- 
 rate verdicts. 4 This may be ordered in actions of ejectment by 
 the same plaintiff claiming under the same title against several 
 defendants ; 5 and in two suits against separate defendants for 
 the same injury, although one is an action in tort and the other 
 on contract. 6 In a case where several actions at common law, 
 brought in a State court, and removed to a Federal court, were 
 based upon insurance policies on the same property, issued upon 
 the same application, at the same time and by the same agent, 
 containing a clause for contribution, the court ordered that one 
 of the causes be transferred to the equity docket, and the other 
 defendants be made parties thereto; that the pleadings in that 
 case be reformed according to the equity practice ; and that 
 the proceedings in the other causes be stayed. 7 
 
 § 372. Evidence, Testimony, and Depositions. — The Revised 
 Statutes provide that, except in cases where depositions are 
 authorized to be taken and used, "the mode of proof in the trial 
 
 § 371. 1 U. S. R. S. § 921; United States 2 Andrews v. Spear, 4 Diil. 470 ; Wa- 
 
 v. U. P. R. R. Co., 98 U. S. 569 ; Andrews bash, St. L. & P. Ry. Co. v. Central Trust 
 
 v. Spear, 4 Dill. 470; Bank of Alexan- Co., 23 Fed. R. 513. 
 dria v. Young, 1 Cranch C. C. 458; 3 Wabash, St. L. & P. Ry. Co. v. 
 
 Wolverton v. Lacey, 18 Law Rep. 672; Central Trust Co., 23 Fed. R. 513. 
 Weide v. Insurance Co. of N. A., 3 Chic. 4 Keep v. I. & St. L. R. Co., 10 Fed. R. 
 
 L. N. 353; Wabash, St. L. & P. Ry. Co. 454. 
 
 v. Central Trust Co., 23 Fed. R. 513 ; Fer- 5 Keep v. I. &. St. L. R. Co., 10 Fed. R. 
 
 rett i'. A twill, 4 N. Y. Legal Observer, 454, 455. 
 
 215; Holmes v. Sheridan, 1 Dill. 351; « Keep t-. I. & St. L R. Co., 10 Fed. R. 
 
 Young v. Grand Trunk Ry.. 9 Fed. R. 454. 
 
 348; Keep v. Indianapolis & St. L. R. It. 7 Falls of Neuse Manuf. Co. v. Georgia 
 
 Co., 10 Fed. R. 454; Davis v. St. Louis Home Ins. Co , 26 Fed. R. 1. 
 
 6 S. F. Ry. Co., 25 Fed. R. 786.
 
 552 PRACTICE AT COMMON LAW. [CHAP. XXVIII. 
 
 of actions at common law shall be by oral testimony, and the ex- 
 amination of witnesses in open court." x The Circuit and District 
 Courts have no power to enact rules regulating the taking of 
 testimony. 2 The cases in which depositions can be taken and 
 used, and other rules upon this subject, are stated in the previous 
 chapter on Evidence. 3 No form of examination or deposition 
 unknown to the common law and not authorized by a Federal 
 statute, even though, — as the examination of a party before trial, 
 for example, — authorized by a statute of the State where the 
 court is held, will be followed by a Federal court in either an ac- 
 tion at common law or a suit in equity. 4 An order of a State 
 court directing such an examination is avoided by the removal of 
 the case. 5 Whether an order can be granted for the examination 
 of a party, in accordance with the State statute, to an action at 
 common law, to enable the opposite party to frame his pleading, 
 is unsettled. 6 It has been held in the Southern District of New 
 York that inspection of a document before trial at common law 
 can only be obtained by a bill of discovery, not by an order, in 
 accordance with the State practice. 7 A statute provides that on 
 the trial of an action at law the courts of the United States may, 
 on motion and due notice thereof, require the parties to produce 
 books or writings in their possession or power, which contain 
 evidence pertinent to the issue, in cases and under circumstances 
 where they might be compelled to produce the same by the ordi- 
 nary rules of proceeding in chancery. 8 If a plaintiff fails to com- 
 ply with such an order, the court may, on motion, give the like 
 judgment for the defendant as in cases of nonsuit; and if a de- 
 fendant fails to comply with such order, the court may, on motion, 
 give judgment against him by default. 9 It has been held at 
 circuit that this practice will be followed in equity. 10 The pen- 
 dency of a bill of discovery is not a bar to such a motion in an 
 
 § 372. 1 U. S. R. S. § 867. See Ex parte Colgate v. Compagnie Francaise, 23 Fed. 
 
 Fisk, 113 U. S. 713; Beardsley v. Littell, R. 82. But see Coit v. North Carolina 
 
 14 Blatchf. 102. Gold Amalgamating Co., 9 Fed. R. 577. 
 
 2 Randall v. Venable, 17 Fed. R. 163. 8 U. S. R. S. § 724. 
 
 8 See Chapter XIX. 9 U. S. R. S. § 724. 
 
 4 Ex parte Fisk, 113 U. S. 713. But 10 Coit v. North Carolina Gold Amal- 
 see Bryant v. Leyland, 6 Fed. R. 12. gamating Co., 9 Fed. R. 577. But see 
 
 5 Ex parte Fisk, 113 U. S. 713. Guyot v. Hilton, 32 Fed. R. 743; Colgate 
 
 6 Treadwell v. Seymour, U. S. C. C, v. Campagnie Francaise, 23 Fed. R. 
 S. D. N. Y. Oct. 29, 1889 ; N. Y. Law 82 ; Bischoffsheim v. Brown, 29 Fed. R. 
 Journal, Oct. 30, 1889, Lacombe, J. 341. 
 
 ' Guyot v. Hilton, 32 Fed. R. 743; 
 
 i
 
 § 373.] ABATEMENT AND REVIVOR. 553 
 
 action at law. 11 The order will not be granted unless the appli- 
 cant shows that the paper exists and is pertinent to the issue, 
 and in the possession of the other party. 12 The order may be 
 absolute or conditional. 13 A motion made at the trial is too late. 14 
 If the notice was not served a sufficient length of time before 
 the trial, the trial may be postponed. 15 It has been said that 
 such an order should not be made against a corporation, the 
 proper remedy in such a case being a subpoena duces tecum served 
 on one of its officers. 16 The order may require that the docu- 
 ments be filed with the clerk, or that copies of them be served 
 on the party seeking them. 17 
 
 § 373. Abatement and Revivor. — The Revised Statutes pro- 
 vide that when either of the parties to a suit in any court of the 
 United States dies before final judgment, the executor or ad- 
 ministrator of such deceased party may, in case the cause of ac- 
 tion survives by law, prosecute or defend any such suit to final 
 judgment. 1 " The defendant shall answer accordingly, and the 
 court shall hear and determine the cause, and render judgment 
 for or against the executor or administrator as the case may re- 
 quire." 2 If the survivor wishes to continue the suit, he must 
 serve the executor or administrator with a scire facias, issued 
 from the clerk's office where the case is pending ; and if such 
 personal representative fails to become a party to the suit 
 within twenty days from the service of such writ, the court may 
 render judgment against the estate of the deceased party in the 
 same manner as if the executor or administrator had voluntarily 
 made himself a party. 3 The executor or administrator who 
 thus becomes a party is entitled, upon motion, to a continuance 
 till the next term of the court. 4 If there are two or more 
 plaintiffs or defendants in a suit, where the cause of action sur- 
 vives to the surviving plaintiff or against the surviving defendant, 
 
 11 Iasigi v. Brown, 1 Curt. 401. C. 107 ; Bank of U. S. v. Kurtz, 2 Cranch 
 
 " Iasigi v. Brown, 1 Curt. 401 ; Triplett C. C. 342. 
 
 v. Bank of Washington, 3 Cranch C. C. :5 Geyger v. Gcygcr. 2 Dall. 332 ; Bank 
 
 646 ; Jacques v. Collins, 2 Blatchf . 23 ; of U. S. v. Kurtz, 2 Cranch C. C. 342. 
 
 Buell v. Conn. Mutual Life Ins. Co., 16 Merchants' National Bank v. State 
 
 1 Cin. L. B. 51 ; Bas v. Steele, 3 Wash. National Bank. 3 Cliff. 201. 
 
 381. » Jacques v. Collins, 2 Blatchf. 23. 
 
 I 8 Dunham v. Riley, 4 Wash. 126; §373. * U. S. R. 8. §965. 
 Iasigi v. Brown, 1 Curt. 401 ; Merchants' 2 U. R. R. S. § 055. See Allen v. Fair- 
 National Bank v. State National Bank, 3 banks, 40 Fed. R. 188. 
 Cliff. 201. 8 U. S. R. S. § 955. 
 
 " Sampson v. Johnson, 2 Cranch C. i U. S. R. S. § 955.
 
 554 PRACTICE AT COMMON LAW. [CHAP. XXVIIL 
 
 and one or more of them dies, the suit and action do not thereby 
 abate ; but such death must be suggested in the record, and the ac- 
 tion thereupon proceed at the suit of the surviving plaintiff against 
 the surviving defendant. 5 The practice under, and the construc- 
 tion of, this section are not clear ; but the following points seem 
 settled. The statute does not apply to real actions. 6 They can- 
 not be revived." This section only regulates the manner of 
 revivor. The survivability of a cause of action, if it be one aris- 
 ing under the statute or common law of the State where it arose, 
 depends on the laws of that State. 8 If the cause of action be 
 one created by a Federal statute, its survival or abatement is 
 not affected by State statutes or decisions. 9 Thus, a qui tarn 
 action to recover a penalty under a statute of the United States 
 abates by the death of the defendant, although the statutes of the 
 State where the case is pending authorize the revivor of actions 
 to recover penalties. 10 An action for the infringement of a patent 
 survives to the representatives of the patentee. 11 
 
 § 374. Trials. — The Revised Statutes provide that the trial of 
 issues of fact in actions at common law in the Circuit Courts 
 shall be by jury. 1 
 
 There is but one exception to this, namely, whenever the 
 parties or their attorneys of record file with the clerk a stipu- 
 lation in writing waiving a jury. 2 Then, the issues of fact 
 may be tried and determined by the court without the in- 
 tervention of a jury ; and the rulings of the court on the 
 trial, if excepted to at the time and included in the bill of 
 exceptions, may be reviewed in the Supreme Court upon a writ 
 of error or appeal ; and when the findings are special the review 
 may extend to the determination of the sufficiency of the facts 
 found to support the judgment. 3 
 
 The court's findings may be general or special, 4 and have the 
 
 5 U. S. R. S. § 956. See Allen v. Fair- 9 Schreiber v. Sharpless, 110 U. S. 76; 
 banks, 40 Fed. R. 188. May v. Logan County, 30 Fed. R. 250. 
 
 6 Maeker v. Thomas, 7 Wheat. 530; 10 Schreiber v. Sharpless, 110 U S. 76. 
 Green v. Watkins, 6 Wheat. 260. " May v. Logan County, 30 Fed. R. 
 
 7 Maeker v. Thomas, 7 Wheat. 530; 250. 
 
 Green v. Watkins, 6 Wheat. 260. § 374. * U. S. R. S. § 648. 
 
 s Warren v. Furstenheim, 35 Fed. R. 2 U. S. R. S. § 649, 700. 
 691; Witters v. Foster, 26 Fed. R. 737; 3 U. S. R. S. § 649, 700. 
 Henshaw v. Miller, 17 How. 212 ; Hat- 4 U. S. R. S. § 649 ; Norris v. Jackson, 
 
 field v. Bushnell,l Blatchf.393; Trigg v. 9 Wall. 125; Mining Co. v. Taylor, 100 
 
 Conway, Hempst. 711. U. S. 37. 

 
 § 374.] 
 
 TRIALS. OoO 
 
 same effect as the verdict of a jury. 5 Findings may be filed 
 by an order of the judge who tried the case, nunc pro tunc, 
 at a term subsequent to the entry of judgment on his decision. 6 
 If the stipulation is not in writing the judgment will be valid ; 7 
 but the appellate court cannot reverse the same for any error in 
 the admission or exclusion of evidence, or because the evidence 
 was insufficient to warrant the finding of the judge, or upon any 
 other question of law growing out of the evidence. 8 The most 
 appropriate proof of a compliance with the statute is the inclu- 
 sion of the stipulation in the judgment roll. 9 A statement in 
 the finding of facts, the record of the judgment entry, or the bill 
 of exceptions that such a stipulation was made in writing, will be 
 sufficient proof of a compliance with the statute. 10 It seems that 
 when the court has authority to refer a case, upon consent in 
 writing only, an order expressed to be made " by consent of the 
 parties," that the case be referred, necessarily implies that such 
 consent was in writing. 11 When the parties consent that the 
 case be referred to the judge or some one else as referee, the 
 only question presented by the error is whether there is any 
 error of law in the judgment upon the facts as found by the 
 referee. 12 Where the case was tried before a judge under an 
 order providing, by consent, that it be so tried, and that if it 
 should appear to the judge that there are questions of fact the 
 same be subsequently submitted to a jury, it was held that 
 the Supreme Court could not consider on appeal rulings of the 
 judge upon the trial. 13 A judgment upon an agreed statement 
 of facts presents nothing but a question of law, and may be re- 
 viewed on a writ of error. 14 
 
 No State statute 15 or constitutional 16 provision regulating the 
 
 6 Norris v. Jackson, 9 Wallace, 125 ; V1 Paine v. Central Vermont R. R. Co., 
 U. S. v. Dawson, 101 U. S. 569. 118 U. S. 152, 158 ; Boogher v. Insurance 
 
 e Insurance Co. v. Boon, 95 IT. S. 117. Co., 103 U. S. 90. 
 
 7 Campbell v. Boyreau, 21 How. 223; 1S Andes v. Slauson, 130 U.S. 435. 
 Bond v. Dustin, 112 U. S. 604, 606. 14 Bond v. Dustin, 112 U. S. 604, 607; 
 
 8 Campbell v. Boyreau, 21 How. 223; Supervisors ?.\ Kennicott, 103 U. S. 554; 
 Bond v. Dustin, 112 U. S. 604; Spalding U. S. v. Eliason, 16 Pet. 291 ; Burr v. 
 v. Manasse, 131 U. S. 65. Des Moines R. R. & Nav. Co., 1 Wall. 99; 
 
 » Bond v. Dustin, 112 U. S. 604, 607. Campbell v. Boyreau, 21 How. 223, 226. 
 
 11 Kearney v. Case, 12 Wall. 275, 15 Nudd v. Burrows, 91 U. S. 426; 
 
 284 ; Dickinson v. Planters' Bank, 16 Indianapolis & St. L. R. R. Co. v. Ilorst, 
 
 Wall. 250; Bond v. Dustin, 112 U.S. 93 U. S. 291. 
 
 604,607. 16 St. Louis, I. M. & S. Railway v. 
 
 u' Bond v. Dustin, 112 U. S. 604, 607 ; Vickers, 122 U. S. 360. 
 Boogber v. Insurance Co., 103 U. S. 90.
 
 556 
 
 PRACTICE AT COMMON" LAW. 
 
 [CHAP. XXYIII. 
 
 maimer of the trial, 17 or form of a verdict, 18 or providing for a 
 compulsory reference, 19 or limiting the powers of the judge to 
 comment on the facts in his charge to the jury, 20 or directing 
 that such charge be in writing, 21 has any influence upon the 
 practice in the Federal courts. But it has been said that the 
 sufficiency and scope of pleadings, and the form and effect of 
 verdicts, in actions at law, are matters in which the Circuit 
 Courts of the United States are governed by the practice of 
 the courts of the State in which they are held. 22 
 
 The trial judge has no power to order a compulsory nonsuit 
 or dismiss a complaint. 23 The plaintiff may consent to a non- 
 suit. 24 The trial judge may direct a verdict for either party in a 
 case where the evidence is such as to make it proper to set aside 
 a verdict in favor of the other. 25 The judge may also comment 
 upon the facts, provided that, when the evidence is conflicting, 
 he makes it clear to the jury that they are not bound by his 
 opinion. 26 
 
 The manner of selecting and the qualifications of jurymen are 
 prescribed by Statutes of the United States. 27 
 
 § 375. Rules of Decision at Common Law. — The Revised Stat- 
 utes provide that " the laws of the several States, except where 
 the Constitution, treaties, or statutes of the United States other- 
 wise require or provide, shall be regarded as rules of decision in 
 trials at common law, in the courts of the United States, in Cases 
 where they apply." 1 It has been held that this statute does not 
 
 » Nudd v. Burrows, 91 U. S. 426; In- 
 dianapolis & St. L. R. R. Co. v. Horst, 93 
 U. S. 291 ; Vicksburg & M. R. R. Co. v. 
 Putnam, 118 U. S 545 ; St. Louis, I. M. & 
 S. Railway v. Vickers, 122 U. S. 360. 
 
 i 8 Indianapolis & St. L. R. R. Co. v. 
 Horst, 93 U. S. 291 ; Abbott v. Curtis & 
 Co. Manuf. Co., 25 Fed. R. 402 ; U. S. 
 Mutual Accident Association v. Barry, 
 131 U. S. 100. 
 
 19 Howe Machine Co. v. Edwards, 15 
 Blatchf. 402; U. S. p. Rathbone, 2 
 Paine, 578. 
 
 - ' Vicksburg & M. R. R. Co. v. Putnam, 
 118 U. S. 545 ; St. Louis, I. M. & S. Rail- 
 way v. Vickers, 122 U. S. 360 ; U. S. i: 
 Phila. & Reading R. R. Co., 123 U. S. 
 113; Rucker v. Wheeler, 127 U. S. 85, 
 93; Lovejoy v. U. S., 128 U. S. 171. 
 
 21 Kudtl v. Burrows, 97 U. S. 426. 
 
 22 Gray, J., in Glenn v. Sumner, 132 
 U. S. 152, 156. See Bond v. Dustin, 112 
 U. S. 604 ; and § 300. 
 
 23 Elmore v. Grymes, 1 Pet. 469 ; 
 D'Wolf v. Rabaud, 1 Pet. 476 ; Crane 
 v. Morris, 6 Pet. 598 ; Silsby v. Foote, 14 
 How. 218 ; Castle v. Bullard, 23 How. 172. 
 
 2i Elmore v. Grymes, 1 Pet. 469. 
 
 25 Randall v. Baltimore & O. R. R. Co., 
 109 U. S. 478. 
 
 26 Vicksburg & M. R. R. Co. v. Putnam, 
 118 U. S. 545 ; St. Louis, I. M. & S. Rail- 
 way v. Vickers, 122 U. S. 360 ; U. S. v. 
 Phila. & Reading R. R. Co., 123 U. S. 
 113; Rucker v. Wheeler, 127 U. S. 85, 93; 
 Lovejoy v. U. S., 128 U. S. 171. 
 
 27 U. S. R. S. §§ 800-877 ; Brewer v. 
 Jacobs, 22 Fed. R. 217 ; Lovejoy v. U. S., 
 128 U. S. 171. 
 
 § 375. » U. S. R. S. § 721.
 
 § 375.] RULES OF DECISION AT COMMON LAW. 557 
 
 apply to questions of commercial law, or those which involve the 
 application of principles of the common law which are general 
 throughout the United States, and although settled by the de- 
 cision of State courts are not regulated by a State statute. In 
 such cases, the Federal courts are not bound by the decisions of 
 the State courts. 2 Such are questions in the law of insurance, 3 
 liability for negligence by individuals 4 and common carriers, 5 
 negotiable paper, 6 municipal bonds, 7 bills of lading, 8 master and 
 servant, 9 and contracts by corporations. 10 Thus, irrespective of the 
 decisions of the courts of the States where they are held, the Fed- 
 eral courts hold : that in suits for damages by negligence the con- 
 tributory negligence of the plaintiff is a defense, the burden of 
 proving which rests upon the defendant, and that the plaintiff is 
 not bound as a part of his case to disprove the same; 11 that a 
 common carrier cannot by contract relieve himself from liability 
 for negligence ; 12 and that a person who has received negotiable 
 paper in payment of a pre-existing indebtedness is a holder for 
 value. 13 When the decisions of the courts of a State have estab- 
 lished a local rule of property, they will usually be followed by the 
 Federal courts held within such State. 14 The statute law of a State 
 will always be followed by a Federal court there held, so far as the 
 
 2 Swift v. Tyson, 16 Pet. 1 ; Burgess Douglass v. Pike County, 101 U. S. 677, 
 v. Seligman, 107 U. S. 20, 34, and cases 686. 
 
 cited. For a full discussion of the sub- 8 Myrick v. Michigan Central R. R. 
 
 ject, see Holt on Concurrent Jurisdiction Co., 107 U. S. 102, 109 ; Railroad Co. v. 
 
 of the Federal and State Courts, chs. vi. Lockwood, 17 Wall. 357; Pollard v. Vin- 
 
 and vii. See also § 298. ton, 105 U. S. 7. 
 
 3 Carpenter v. Providence Washington 9 Hough v. Railway Co., 100 U. S. 213, 
 Ins. Co., 16 Pet. 495 ; Hening v. U. S. Ins. 226. 
 
 Co., 2 Dill. 26. 10 Railroad Co. v. Lockwood, 17 Wall. 
 
 * Hough v. Railway Co., 100 U. S. 213, 357 ; Hening v. U. S. Ins. Co., 2 Dill. 
 
 226. 26; Myrick v. Michigan Central R. R. 
 
 6 Myrick v. Michigan Central R. R. Co., 107 U. S. 102, 109. 
 
 Co., 107 U. S. 102, 109 ; Railroad Co. v. n Railroad Co. v. Gladmon, 15 Wall. 
 
 Lockwood, 17 Wall. 357. 401; Indianapolis & St. L. R. R. Co. v. 
 
 6 Swift v. Tyson, 16 Pet. 1 ; Pail- Ilorst, 93 U. S. 291 ; Northern Pac. R. R. 
 road Company v. National Bank, 102 Co. ». Mares, 123 U. S. 710. 
 
 U. S. 14 ; Watson v. Tarpley, 18 How- l - Railroad Co. v. Lockwood. 17 Wall, 
 
 ard, 517 ; Tilden v. Blair, 21 Wallace, 357 ; Bank of Kentucky v. Adams Ex- 
 
 241. press Co., 93 U. S. 174. 
 
 7 Olcott v. Supervisors, 10 Wall. 678 ; 18 Swift v. Tyson, 16 Pet. 1 ; Rail- 
 Township of Pine Grove v. Talcott, 19 road Co. v. National Bank, 102 U S. 14. 
 Wall. 600; Town of Venice v. Murdock, " Neves v. Scott, 13 How. 268, 271 ; 
 92 U. S. 494 ; Commissioners of Johnson Gaines v. Fuentes, 92 U. S. 10, 20; Ellis 
 County v. Thayer, 94 U. S. 631 ; Crom- v. Davis, 109 U. S. 485; Lorman v. 
 well v. County of Sac, 96 IT. S. 51 ; Fair- Clarke, 2 McLean, 568. See Bucher v. 
 field v. Gallatin County, 100 U. S. 47 ; Cheshire Railroad Co., 125 U. S. 555.
 
 558 PRACTICE AT COMMON LAW. [CHAT. XXVIII. 
 
 statutes establish a local rule of property ; 15 and nearly always, so 
 far as they create or abolish rights as distinct from remedies. 16 
 The construction of a statute by the courts of the State which en- 
 acted it will be followed by the Federal courts, provided such 
 construction is clear, and was made before the facts occurred out 
 of which the question for adjudication arose. 17 If a contract 
 when made is valid by the laws of the State as then construed by 
 its courts, subsequent decisions altering the construction of those 
 laws will not be followed by the Federal courts. 18 Whether a 
 State statute has been passed by the legislature, is a question as 
 to which the Federal courts will follow the decisions of the courts 
 of such State. 19 Federal courts will in actions at common law fol- 
 low the Statutes of Limitations 20 and Statutes of Frauds 21 and Re- 
 cording Acts 22 of the State where such courts are held, and the 
 construction given to those statutes by the courts of the States 
 which enacted them so far as they apply, subject to the exceptions 
 already noted. The United States are not bound by any State 
 Statutes of Limitation even if expressly named therein. 23 It has 
 been held at circuit, that a State statute providing that purchasers 
 without actual notice of a pending suit are not bound by the pro- 
 ceedings therein unless a notice of lis pendens has been filed 
 in a designated public office, will be followed by the Federal 
 court, there held, which will require notice of the pendency 
 of a suit in such a Federal court to be filed in such office so as 
 
 15 D'Wolf v. Eabaud, 1 Pet. 476 ; Bacon v. N. W. Mutual Life Ins. Co.. 131 
 Clark v. Smith, 13 Pet. 195 ; Fitch v. U. S. 258 ; Hawkins v. Glenn, 131 U. S. 
 Creighton, 24 How. 159 ; Brine v. Insur- 319, 331. 
 
 ance Co., 96 U. S. 627 ; Mills v. Scott, 99 18 Ohio Life Ins. & Trust Co. v. Debolt, 
 
 U. S. 25 ; Van Norden v. Morton, 99 U. S. 16 How. 416; Gelpcke v. Dubuque, 1 
 
 378 ; Cummings ?>. National Bank, 101 Wall. 175 ; Havemeyer v. Iowa County, 
 
 U. S. 153, 157 ; Holland v. Challen, 110 3 Wall. 294; Thomson v. Lee County, 3 
 
 U. S. 15; Reynolds v. Crawfordsville Wall. 327 ; Douglass v. Pike County, 101 
 
 First National Bank, 112 U. S. 405. U. S. 677; Louisiana v. Pilsbury, 105 
 
 16 Bucher v. Cheshire Railroad Co., U. S. 278 ; Carroll County v. Smith, 111 
 125 U. S. 555. But see Watson v. Tarp- U. S. 556 ; Anderson v. Santa Anna, 116 
 ley, 18 How. 517. U. S. 356. 
 
 17 Bell v. Morrison, 1 Pet. 351 ; 19 Leavenworth County v. Barnes, 94 
 D'Wolf v. Rabaud, 1 Pet. 476; Van U. S. 70 ; South Ottawa v. Perkins, 94 U. 
 Rensselaer v. Kearney, 11 How. 297; S. 260 ; Post v. Supervisors, 105 U. S. 667. 
 Tioga R. R. Co. v. Blossburg & C. R. R. 20 Bell v. Morrison, 1 Pet. 351 ; Tioga 
 Co., 20 Wall. 137 ; Townsend v. Todd, 91 R. R. Co. v. Blossburg & C. R. R. Co., 20 
 U. S. 452 ; U. S. v. Fox, 94 U. S. 315 ; Wall. 137. 
 
 Scipio v. Wright, 101 U. S. 665 ; Burgess 21 D'Wolf v. Rabaud, 1 Pet. 476. 
 
 ». Seligman, 107 U. S. 20, 34 ; Bucher & Townsend v. Todd, 91 U. S. 452. 
 
 v. Cheshire Railroad Co., 125 U. S. 555; ^D.Sd. Thompson., 98 U. S. 486.
 
 § 377.] BILLS OF EXCEPTIONS. 559 
 
 to bind such subsequent purchasers. 24 A State statute giving 
 the right to two trials in an action of ejectment will be followed 
 by the Federal courts there held. 25 
 
 § 376. New Trials. — The power of a Federal court to grant 
 a new trial cannot be enlarged or restricted by a State statute. 1 
 The Federal courts have power to grant new trials after a trial 
 by jury "for reasons for which new trials have usually been 
 granted in the courts of law." 2 A motion for a new trial must 
 be made or noticed for argument during the term at which the 
 trial took place, or by special leave of the court granted upon a 
 petition filed within forty-two days after the entry of judgment. 3 
 A motion for a new trial upon exceptions, or because the verdict 
 was against the evidence or against the weight of evidence, or 
 because of excessive or insufficient damages, is regularly argued 
 before the judge who tried the case. 4 He may, if he chooses, 
 ask another judge to assist him in rendering his decision ; 5 and 
 the latter may then hear the argument ; 6 but neither party has 
 the right to demand the participation of another judge in the 
 decision. 7 The power of Congress to authorize such a re-exam- 
 ination of the proceedings upon the trial has been questioned. 8 
 An order granting or denying a motion for a new trial cannot be 
 reviewed upon a writ of error. 9 
 
 § 377. Bills of Exceptions. — The time and manner of taking 
 exceptions and filing bills of exceptions are also matters as to 
 which the Federal courts act independently of the State prac- 
 tice. 1 The Revised Statutes provide that " a bill of exceptions 
 allowed in any cause shall be deemed sufficiently authenticated 
 if signed by the judge of the court in which the cause was tried, 
 or by the presiding judge thereof, if more than one judge sat on 
 
 2 4 Jones v. Slauson, U. S. C. C, S D. <* T ves „. Grand Trunk R y . Co., 85 
 
 N. Y., Lacombe, J., Oct. 29, 1889, 40 Fed. Fed. R. 176; Adams v. Spangler, 17 
 
 E. 314. Fed. R. 133. 
 
 - 5 Equator M. & S. Co. v. Hall, 106 8 Adams v. Spangler, 17 Fed. R. 133; 
 
 U. S. 86. But see § 376. Ives v. Grand Trunk Ry. Co., 35 Fed. R. 
 
 § 376. ! Indianapolis & St. L. R. R. Co. 176. 
 »'. Ilorst,93 IT. S. 291; Newcomb t>. Wood, 7 Ives v. Grand Trunk Ry. Co., 35 
 
 97 U. S. 581. But see Equator M. & S. Fed. R. 176. 
 Co. v. Hall, 106 U. S. 86; and § 375. 8 Ives v. Grand Trunk Ry. Co., 35 
 
 2 U. S. R. S. § 726; Clark v. Sohier, Fed. R. 176. Cf. Metropolitan R. R. Co. 
 1 W. & M. 368 ; Milliken v. Ross, 9 Fed. It. v. Moore, 121 U. S. 558, 673. 
 
 855. 9 Missouri Pac. Ry. Co. v. Chicago 
 
 3 U. S. R. S. § 987. See §380. & A. Ry. Co., 132 U. S. 191. 
 
 4 Ives v. Grand Trunk Ry. Co., 35 § 377. l Chateaugay Ore & Iron Co., 
 Fed. R. 176. Petitioner, 128 U. S. 544.
 
 560 
 
 PRACTICE AT COMMON LAW. 
 
 [CHAP. XXVIII. 
 
 the trial of the cause, without any seal of court or judge being 
 annexed thereto." 2 If the hill of exceptions is neither signed nor 
 sealed, it will be disregarded upon a writ of error. 3 The rules 
 of the Supreme Court provide that "the judges of the Circuit 
 and District Courts shall not allow any bill of exceptions which 
 shall contain the charge of the court at large to the jury in 
 trials at common law, upon any general exception to the whole 
 of such charge. But the party excepting shall be required to 
 state distinctly the several matters of law in such charge to 
 which he excepts ; and these matters of law, and these only, 
 shall be inserted in the bill of exceptions, and allowed by the 
 court." 4 A general exception to the whole charge is of no 
 effect where the charge contains distinct propositions and any 
 one of them is free from objection. 5 An exception to the refusal 
 of the court to instruct the jury in language prayed for by coun- 
 sel is of no avail, if the refusal be followed by instructions in the 
 general charge in different language but substantially to the same 
 effect. 6 The rules of the Circuit Courts usually regulate the 
 manner of settling bills of exceptions. When they are silent, 
 the old English practice is followed. 7 
 
 § 378. Judgments. — The Federal courts should follow the 
 State practice in recording judgments. 1 The Revised Statutes 
 provide that " judgments and decrees rendered in a Circuit or 
 District Court, within any State, shall cease to be liens on real 
 estate or chattels real, in the same manner and at like periods 
 as judgments and decrees of the courts of such State cease by 
 law, to be liens thereon." 2 A recent statute provides as follows: 
 " That judgments and decrees rendered in a circuit or district 
 court of the United States within any State, shall be liens on 
 property throughout such State in the same manner and to the 
 same extent and under the same conditions only as if such judg- 
 ments and decrees had been rendered by a court of general juris- 
 
 2 Chateaugay Ore & Iron Co., Peti- 
 tioner, 128 U. S. 544, 555. 
 
 3 Mussina v. Cavazos, 6 Wall. 355, 363. 
 « Kule 4. 
 
 5 Anthony v. Louisville & Nashville 
 R. R. Co., 132 U. S. 172; Lincoln v. 
 Claflin, 7 Wall. 132, 139; Cooper v. 
 Schlesinger, 111 U. S. 148, 151 ; Mobile 
 & M. Ry. Co. v. Jurey, 111 U. S. 584, 
 596 ; Burton v. West Jersey Ferry Co., 
 114 U. S. 474, 476. 
 
 6 Anthony v. Louisville & Nashville 
 R. R. Co., 132 U. S. 172. 
 
 7 Chateaugay Ore & Iron Co., Peti- 
 tioner, 129 U. S. 544, 555. 
 
 § 378. 1 Morrison v. Bernards Town- 
 ship, 35 Fed. R. 400 ; 25 St. at L. ch. 729 
 § 1, P- 357. 
 
 2 U. S. R. S. § 967. See Sellers v. Cor- 
 win, 5 Ohio, 398.
 
 § 379.] COREECTION OF JUDGMENTS. 561 
 
 diction of such State ; Provided, That whenever the laws of any 
 State require a judgment or decree of a State court to be regis- 
 tered, recorded, docketed, indexed, or any other thing to be 
 done, in a particular manner, or in a certain office or county, or 
 i parish in the State of Louisiana before a lien shall attach, this 
 act shall be applicable therein whenever and only whenever the 
 laws of such State shall authorize the judgments and decrees of 
 the United States courts to be registered, recorded, docketed, 
 indexed, or otherwise conformed to the rules and requirements 
 relating to the judgments and decrees of the courts of the State." 
 " That the clerks of the several courts of the United States shall 
 prepare and keep in their respective offices complete and conven- 
 ient indices and cross-indices of the judgment records of said 
 courts, and such indices and records shall at all times be open 
 to the inspection and examination of the public." " Nothing 
 herein shall be construed to require the docketing of a judgment 
 or decree of a United States court, or the filing of a transcript 
 thereof, in any State office within the same county or parish in 
 the State of Louisiana in which the judgment or decree is ren- 
 dered, in order that such judgment or decree may be a lien on 
 any property within such county." 3 
 
 § 379. Correction of Judgments by Courts that rendered them. — 
 In the correction, amendment, and vacation of their own judg- 
 ments, the Federal courts act independently of the law regulat- 
 ing the State courts. 1 " The question relates to the power of the 
 courts and not to the mode of procedure." 2 At the term at which 
 it is entered a judgment may, for cause shown, be set aside, 
 modified or amended, by the court where it was entered. 3 After 
 the terra has expired, unless a motion for the relief was made or 
 noticed during that term, 4 no alteration or correction can be made 
 except by writ of error, and in that class of cases in which the 
 writ of error coram nobis was issued in the old English practice. 5 
 " The writ of error coram nobis was allowed, to bring before the 
 same court in which the error was committed some matter of 
 
 » 25 St. at L. ch. 729, p. 357. * Amy v. Watertown, 130 U. S. 301, 
 
 § 379. » Bronson v. Schulten, 104 U. S. 313 ; Bronson v. Schulten, 104 U. S. 410, 
 
 410,417. 415,416. 
 
 2 Bronson v. Schulten, 104 U. S. 410, 5 Bronson v. Schulten, 104 U. S. 410, 
 
 417, per Miller, J. 415,416; Phillips v. Negley, 117 U. S. 
 
 8 Bronson v. Schulten, 104 U. S. 410, 6G5. 
 415. 
 
 36
 
 562 
 
 PRACTICE AT COMMON LAW. 
 
 [CHAP. XXVIII. 
 
 fact which had escaped attention and which was material in the 
 proceeding. These were limited generally to the facts that one 
 of the parties to the judgment had died before it was rendered, 
 or was an infant and no guardian had appeared or been appointed, 
 or was a feme covert, or the like, or error in the process through 
 default of the clerk." 6 "In practice the same end is now gen- 
 erally attained b}' motion, sustained, if the case require it, by 
 affidavits ; and it is observable that so far has the latter mode 
 superseded the former in the British practice, that Blackstone 
 does not even notice this suit among his remedies." 7 
 
 § 380. Executions and Proceedings Supplementary thereto. — A 
 statute passed June 1, 1872, and incorporated in the Revised 
 Statutes, December 1, 1873, provides that " the party recovering 
 a judgment in any common law cause in any Circuit or District 
 Court, shall be entitled to similar remedies upon the same, by 
 execution or otherwise, to reach the property of the judgment 
 debtor, as are now provided in like causes by the laws of the 
 State in which such court is held, or by any such hereafter en- 
 acted which may be adopted by general rules of such Circuit or 
 District court ; and such courts ma}' from time to time, by 
 general rules, adopt such State laws as may hereafter be in force 
 in such State in relation to remedies upon judgments, as afore- 
 said, by execution or otherwise." x In pursuance of this statute, 
 the Circuit and District Courts have generally promulgated rules 
 adopting the State practice in this respect. 2 The adoption of 
 such a rule gives the Federal court power to enforce the pro- 
 ceedings supplementary to execution authorized by the State 
 statutes. 3 The Revised Statutes provide that " all writs of execu- 
 tion upon judgments or decrees obtained in a Circuit or District 
 court, in any State which is divided into two or more districts, 
 may run and be executed in any part of such State ; but shall be 
 issued from, and made returnable to, the court wherein the judg- 
 ment was obtained." 4 In cases where a writ of error lies to the 
 Supreme Court, the execution cannot be issued till ten days 
 
 2 See for examples the rules promul- 
 gated by the U. S. C. C, S. D. N. Y., 
 October 11, 1878, and December 29, 1881. 
 
 8 Ex parte Boyd, 105 U. S. 647 ; Canal 
 & C. Streets R. B. Co. v. flart, 114 U. S. 
 654, 661. See § 21. 
 
 * U. S. R. S. § 985. 
 
 6 Bronson v. Schulten, 104 U. S. 410, 
 416, per Miller, J. ; Phillips v. Negley, 
 117 U. S. 665. 
 
 7 Pickett's Heirs v. Legerwood, 8 Pet. 
 144, 148, per Johnson, J. 
 
 § 380. i U. S. R. S. § 916 ; 4 St. at L. 
 ch. 68, p. 281. Lamaster v. Keeler, 123 
 U. S. 376.
 
 § 380.] EXECUTIONS AND SUPPLEMENTARY PROCEEDINGS. 563 
 
 after the entry of the judgment. 5 The writ may, however, be 
 previously prepared by the clerk. 6 When it is required by the 
 laws of any State that goods taken in execution on a writ of 
 fieri facias shall be appraised before they are sold, the appraisers 
 appointed under the authority of the State may appraise goods 
 taken in execution on such a writ issued out of a court of the 
 United States, in the same manner as if such writ had issued out 
 of a court of such State ; and the marshal, in whose custody the 
 goods are, shall summon the appraisers in the same manner as 
 the sheriff is, by the laws of such State, required to summon them, 
 and if the appraisers, after having been duly summoned, fail to 
 attend and perform the duties required of them, the marshal may 
 proceed to sell such goods without an appraisement. 7 When 
 such appraisers attend, they are entitled to the like fees as in 
 cases of appraisement under the laws of such State. 8 When a 
 marshal dies, or is removed from office, or his term expires, after 
 he has taken under execution any real property and before sale 
 or other final disposition thereof, the like process issues to the 
 succeeding marshal, and the same proceeding is had as if his 
 predecessor were still in office. 9 In such a case, when the former 
 marshal has sold the real estate but executed no deed, the court 
 may, on application by the purchaser, or by the plaintiff at whose 
 suit the sale was made, setting forth the case and the reason why 
 the title was not perfected by the former marshal, order his suc- 
 cessor to perfect the title, and execute and deliver a deed to the 
 purchaser upon payment of the balance due. 10 The marshal of 
 a district of the United States has substantially the same powers 
 and duties as a sheriff in one of the counties within such dis- 
 trict. 11 Under the Revised Statutes, " interest is allowed on all 
 judgments in civil causes recovered in a Circuit or District 
 Court, and may be levied by the marshal under process of exe- 
 cution issued thereon, in all cases where, by the law of the State 
 in which such court is held, interest may be levied under pro- 
 cess of execution on judgments recovered in the courts of such 
 State." 12 The interest is calculated from the date of the judg- 
 
 6 United States Revised Statutes, 9 U. S.R. S. § 994; Doolittle v. Bryan, 
 
 § 1007. 14 How. 563. 
 
 6 Board of Commissioners v Gorman, 10 U. S. R. S. § 994; Byers v. Fowler, 
 19 Wall. 6G1. 12 Ark. 218. 
 
 7 U. S. R. S. § 993 ; Wayman v. South- " U. S. R. S. § 787 ; In re Neagle, 39 
 ard, 10 Wheat. 1. Fed. R, 833. 
 
 8 U. S. R. S. § 903. " U. S. R. S. § 966.
 
 564 PRACTICE AT COMMON LAW. [CHAP. XXVIII. 
 
 ment, at such rate as is allowed by law on judgments "recovered 
 in the courts of such State." 13 This statute does not apply to 
 decrees in equity. 14 The Revised Statutes further provide that 
 " when a circuit court enters judgment in a civil action, either 
 upon a verdict or on a finding of the court upon the facts, in 
 cases where such finding is allowed, execution may, on motion 
 of either party, at the discretion of the court, and on such con- 
 ditions for the security of the adverse party, as it may judge 
 proper, be stayed forty-two days from the time of entering judg- 
 ment, to give time to file in the clerk's office of said court a 
 petition for a new trial. If such petition is filed within said 
 term of forty-two days, with a certificate thereon from any judge 
 of such court that he allows it to be filed, which certificate he 
 may make or refuse at his discretion, execution shall, of course, 
 be further stayed to the next session of said court. If a new 
 trial be granted, the former judgment shall be thereby rendered 
 void." 15 " In any states where judgments are liens upon the 
 property of the defendant, and where, by the laws of such 
 state, defendants are entitled, in the courts thereof, to a stay of 
 execution for one term or more, defendants in actions in the 
 courts of the United States, held therein, shall be entitled to a 
 stay of execution for one term." 16 
 
 " When a recovery is had in any suit or proceeding against a 
 collector or other officer of the revenue for any act done by him, 
 or for the recovery of any monej" exacted by or paid to him and 
 by him paid into the Treasury, in the performance of his official 
 duty, and the court certifies that there was probable cause for 
 the act done by the collector or other officer or that he acted 
 under the directions of the Secretary of the Treasury, or other 
 proper officer of the Government, no execution shall issue against 
 such collector or other officer, but the amount so recovered shall 
 upon final judgment, be provided for and paid out of the proper 
 appropriation from the Treasury. 17 The same rule prevails as to 
 an action against a person for or on account of anything done by 
 
 w U. S. R. S. §966. 14 Blatchf. 289; Andrae v. Redfield, 12 
 
 w Perkins v. Fourniquet, 14 How. 328. Blatchf. 407 ; Frericha v. Coster, 22 Fed. 
 
 15 U. S. R. S. § 987; Camburton v. R. 637 ; Sehell v. Cochran, 107 U. S. 625; 
 U. S., 95 U. S. 285, 288; Emma Silver U. S. v. Sherman, 98 U. S. 565; Campbell 
 Mining Co. v. Parks, 14 Blatchf. 41 1,413; v. James, 3 Fed. R. 513; Dunnegan v. 
 Brown v. Evans, 18 Fed. R. 56. U. S., 17 Court of Claims, 240, 247 ; White 
 
 16 U. S. R. S. § 988. v. Arthur, 10 Fed. R. 80; Flanders v. 
 " U. S. R. S. § 989 ; Cox v. Barney, Seelye, 105 U. S. 718.
 
 § 381.] CONDEMNATION PROCEEDINGS. 565 
 
 him while an officer of either House of Congress in the discharge 
 of his official duty." 18 
 
 § 381. Condemnation Proceedings. — The act of February 9, 
 1887, provides : that "in every case in which the secretary of the 
 Treasury or any other officer of the Government has been, or here- 
 after shall be, authorized to procure real estate for the erection 
 of a public building or for other public uses he shall be, and 
 hereby is, authorized to acquire the same for the United States 
 by condemnation under judicial process, whenever in his opinion 
 it is necessary or advantageous to the Government to do so, and 
 the United States circuit or district courts of the district 
 wherein such real estate is located, shall have jurisdiction of 
 proceedings for such condemnation, and it shall be the duty of 
 the Attorney-General of the United States, upon every applica- 
 tion of the Secretary of the Treasury, under this act, or such 
 other officer, to cause proceedings to be commenced for condem- 
 nation, within thirty days from the receipt of the application at 
 the Department of Justice." " The practice, pleadings, forms and 
 modes of proceeding in causes arising under the provisions of this 
 act shall conform as near as may be, to the practice, pleadings, 
 forms and proceedings existing at the time in like causes in 
 the courts of record of the state within which such circuit or 
 district courts are held, any rule of the court to the contrary 
 notwithstanding." 1 This act is authorized by the Constitution. 3 
 It has been held that the petition need not be made in the name 
 of the United States, but may be in the name of the Secretary of 
 the Treasury or other authorized agent of the United States. 3 
 The proceeding is on the common-law side of the court. 4 
 
 § 381. » 25 St. at L. ch. 728, p. 357. 8 Re Rugheimer, 36 Fed. R. 369 ; 8. c. 
 
 2 Re Rugheimer, 36 Fed. R. 369 ; Kohl 36 Fed. R. 376. 
 v. U. S., 91 U. S. 307 ; Boom Company * Re Rugheimer, 36 Fed. R. 376. 
 v. Patterson, 98 U. S. 403, 400 ; U. S. v. 
 Jones, 109 U. S. 513.
 
 566 REMOVAL OF CAUSES. [CHAP. XXIX. 
 
 CHAPTER XXIX. 
 
 REMOVAL OF CAUSES. 
 
 § 382. Removal of Causes from one Federal Court to another. — 
 Suits may be removed from a District Court to a Circuit Court 
 of the United States, from a Circuit Court of the United States 
 to another such Circuit Court, from a Territorial court to a 
 Circuit Court of the United States, and from a State court to 
 a Circuit Court of the United States. When the judge of a 
 District Court is unable to hold court and to perform the duties 
 of his office, the circuit judge or justice may, upon an applica- 
 tion in writing by the district attorney or marshal of the dis- 
 trict, accompanied by satisfactory evidence of such disability, 
 order the clerk of the District Court to certify into the next 
 term of the Circuit Court to be held in that district all pend- 
 ing suits and processes. 1 Upon such certification, and the pub- 
 lication of such order in a newspaper published in the district 
 at least thirty days before the session of the Circuit Court, the 
 Circuit Court proceeds to hear and determine the suits and pro- 
 cesses so certified. 2 All bonds and recognizances taken for and 
 returnable into such District Court are then held to be taken for 
 and returnable into such Circuit Court, and to have the same 
 effect therein as in the District Court. 3 The death of a district 
 judge does not authorize such an order. 4 After such an order 
 has been made, the clerk continues to certify to the Circuit 
 Court all suits, pleas, and processes, civil and criminal, there- 
 after begun in the District Court ; and the Circuit Court takes, 
 hears, and determines them till the disability is removed, when 
 such suits and proceedings as are still pending and undetermined 
 must be remanded by the Circuit to the District Court. 5 
 
 When it appears in any civil suit in a Circuit Court that all 
 of the judges thereof who are competent to try the case are in 
 
 § 382. i U. S. R. S. § 587. 4 Ex parte United States, 1 Gall. 338. 
 
 2 U. S. R. S. § 587. 6 U. S. R. S. § 588. 
 
 8 U. S. R. S. § 687.
 
 § 3S3.] REMOVAL OF CAUSES. 567 
 
 any way interested therein, or Lave been of counsel for either 
 party, or are so related or connected with either party as to 
 render it, in the opinion of the court, improper for them to sit 
 upon the trial, the court must order the fact to be entered on 
 the record, and order the certification of the cause to the most 
 convenient Circuit Court in the next adjoining State, or in the 
 next adjoining circuit, that is, ordinarily the nearest Circuit 
 Court with a judge competent to try the cause; and the court 
 to which the cause is thus certified must then hear and deter- 
 mine the case, unless the circuit justice or judge thereof re- 
 mands it. 6 
 
 When a Territory is admitted as a State, and a District Court 
 established therein, such District Court takes cognizance of and 
 hears and determines all cases pending undetermined in the Su- 
 perior Court of such Territory, from the judgments or decrees to 
 be rendered in which, writs of error could have been sued out 
 or appeals taken to the Supreme Court of the United States. 7 
 All records of proceedings in cases pending in the court of ap- 
 peals of such a Territory at the time of its admission, and all 
 records of proceedings in which judgments or decrees had been 
 rendered in such a Territorial court before that time, and from 
 which writs of error could have been sued out or appeals taken, 
 or from which writs of error had been taken, or appeals taken 
 and prosecuted to the Supreme Court of the United States, must 
 be transferred to and deposited in the District Court for such 
 new State. 8 
 
 § 333. Causes which may be removed from a State Court to a 
 Circuit Court of the United States. — By § 2 of the Judiciary 
 Act of 1875, as amended in 1887, " any suit of a civil nature at 
 law or in equity arising under the Constitution or laws of the 
 United States or treaties made, or which shall be made under 
 their authority of which the Circuit Courts of the United 
 States" have original jurisdiction, whether now pending or 
 hereafter brought, " may be removed by the defendant or de- 
 
 6 U. S. R. S. §§ 615-616 ; Richardson How. 571 ; Ames v. Colorado Central 
 v. Boston, 1 Curt. 250; Supervisors v. R. R. Co., 4 Dill. 251; Gaffney v. Gil- 
 Rogers, 7 Wall. 175 ; Sawyer v. Oakman, lette, 4 Dill. 264, n. 
 
 11 Blatchf. 65 ; Stuart v. Laird, 1 Cranch, 8 u. S. R. S. §§ 567, 568 ; Benner v. 
 
 299. Porter, 9 How. 235 ; Forsyth v. U. S., 9 
 
 7 U. S. R. S. § 569; 25 St. at L. eh. How. 571; Express Co. v. Kountze, 8 
 180, § 22, p. 682 ; Forsytli v. U. S., 9 Wall. 342.
 
 568 KEMOVAL OF CAUSES. [CHAP. XXIX. 
 
 fendants thereto from a State court into the Circuit Court of 
 the United States for the proper district." 1 Any other suit of a 
 civil nature, at law or in equity, of which the Circuit Courts of 
 the United States have jurisdiction, except as hereafter stated, 
 whether now pending or hereafter brought, can be removed into 
 the Circuit Court of the United States for the proper district 
 only by the defendant or defendants therein ; and not by them 
 unless they are non-residents of that State and unite in the appli- 
 cation for a removal. 2 A resident alien defendant cannot thus 
 remove a case. 3 When in any suit of a civil nature, now pend- 
 ing or hereafter brought in a State court, there are two or more 
 separable causes of action, and in respect to one of them all the 
 necessary parties on one side are citizens of different States from 
 those on the other, either one or more of the defendants inter- 
 ested in such controversy may remove the suit into the Circuit 
 Court of the United States for the proper district. 4 Such re- 
 moval may be had by any defendant, irrespective of his residence 
 or citizenship. 5 " Where a suit is now pending or may be here- 
 after brought, in any State court, in which there is a contro- 
 versy between a citizen of the State in which the suit is brought 
 and a citizen of another State, any defendant, being such citizen 
 of another State, may remove such suit into the Circuit Court of 
 the United States for the proper district at any time before the 
 trial thereof, when it shall be made to appear to said Circuit 
 Court that from prejudice or local influence he will not be able 
 to obtain justice in such State court, or in any other State court 
 to which the said defendant may, under the laws of the State, 
 have the right, on account of such prejudice or local influence to 
 remove said cause." 6 The Revised Statutes provide that " when 
 any civil suit or criminal prosecution is commenced in any 
 court of a State against any officer appointed under or acting by 
 authority of any revenue law of the United States now or here- 
 after enacted, or against any person acting under or by authority 
 
 § 383. > 24 St. at L. ch. 373, p. 552. 4 24 St. at L. ch. 373, p. 552 ; Hyde v. 
 
 See §§15, 17. Ruble, 104 U. S. 407, 409; Fraser v. 
 
 2 24 St. at L. ch. 373, p. 552; Fletcher Jennison, 106 U. S. 191, 194; Ayres 
 v. Hamlet, 116 U. S. 408; Houston & T.C. v. Wiswall, 112 U. S. 187, 192; Barney 
 R. Co. v. Shirley, 111 U. S. 358 ; §§ 15, 16, v. Latham, 103 U. S. 205. But see Speer 
 18-24. But see Mutual Life Ins. Co. v. on Removal of Causes, §§ 28-31. 
 Champlin, 21 Fed. R. 85; Foster's Fed- 5 Stanbrough v. Cook, 38 Fed. R. 369. 
 eral Judiciarv Acts, 26-29. 6 24 St. at L. ch. 373, p. 552. 
 
 3 Walker "v. O'Neill, 38 Fed. R. 374.
 
 § 383.] REMOVAL OF CAUSES. 569 
 
 of any such officer, on account of any act done under color of his 
 office or of any such law, or on account of any right, title, or 
 authority claimed by such officer or other person under any such 
 law ; or is commenced against any person holding property or 
 estate by title derived from any such officer, and affects the 
 validity of any such revenue law ; or is commenced against any 
 officer of the United States or other person, on account of any 
 act done under the provisions of Title XXVI., ' The Elective 
 Franchise,' or on account of any right, title or authority 
 claimed by such officer or other person under any of the said 
 provisions, the said suit or prosecution may, at any time before 
 the trial or final hearing thereof, be removed for trial into the 
 Circuit Court next to be holden in the district where the same 
 is pending upon the petition of such defendant." 7 This statute 
 has been held to be constitutional. 8 In an action against any 
 person for or on account of anything done by him while an 
 officer of either House of Congress, in the discharge of his offi- 
 cial duty, the district attorney of the United States for the dis- 
 trict where the suit is brought must appear for such officer at 
 his request ; and he has the same right of removal as a revenue 
 officer in the cases above mentioned, which right must be simi- 
 larly exercised. 9 " When any civil suit or criminal prosecution 
 is commenced in any State court, for any cause whatsoever, 
 against an} r person who is denied or cannot enforce in the judi- 
 cial tribunals of the State, or in the part of the State where 
 such suit or prosecution is pending, any right secured to him 
 by any law providing for the equal civil rights of citizens of 
 the United States, or of all persons within the jurisdiction of 
 the United States, or against any officer, civil or military, or 
 other person, for any arrest or imprisonment or other trespasses 
 or wrongs, made or committed by virtue of or under color of 
 authority derived from any law providing for equal rights as 
 aforesaid, or for refusing to do any act on the ground that it 
 would be inconsistent with such law, such suit or prosecution 
 may, upon the petition of such defendant, filed in such State 
 court at any time before the trial or final hearing of the cause, 
 stating the facts and verified by oath, be removed for trial, into 
 
 7 U. S. R. S. § 643 ; Tennessee v. Day- 9 18 St. at L. eh. 130, § 8, p. 401 ; 1 
 is, 100 U. S. 257. See § 388. Supp. U. S. R. S. p. 1G5. 
 
 8 Tennessee v. Davis, 100 U. S. 257.
 
 570 
 
 REMOVAL OF CAUSES. 
 
 [CHAP. XXIX. 
 
 the next Circuit Court to be held in the district where it is 
 pending." 10 
 
 A habeas corpus proceeding cannot, it seems, be removed from 
 a State to a Federal court. 11 A defendant may remove a cause 
 into a district where he does not reside, if the case is pending in 
 a State court within that district. 12 A case of which the Federal 
 court could not otherwise take jurisdiction cannot be removed 
 by consent. 13 An agreement by a corporation not to remove into 
 a Federal court any suit brought against it within a State is 
 void. 14 A State, however, has the power to exclude from its 
 limits any corporation not engaged in interstate or international 
 commerce ; and it seems that the courts will not examine into 
 the reasons for such exclusion, provided the statute under 
 which it is made is constitutional. 15 A stipulation not to re- 
 move a specified suit into a Federal court has been held to be 
 valid. 16 
 
 § 384. Separable Controversies. — To entitle a defendant to a 
 removal on account of the separability of a controversy from the 
 rest of the case, there must exist a separate cause of action on 
 which a separate suit could be brought and complete relief af- 
 forded distinct from the rest of the case, and of which all the 
 parties on one side are citizens of different States from all the 
 parties on the other. 1 The case must be separable into parts, 
 so that in one of the parts a controversy will be presented 
 wholly between citizens of different States, which can be fully 
 determined without the presence of the other parties to the suit. 2 
 
 » U. S. R. S. § 641. 
 " Kurtz v. Moffitt, 115 U. S. 487 ; Snow 
 i>. United States, 118 U. S. 346, 354. 
 
 12 Gavin v. Vance, 33 Fed. R. 84, 92 ; 
 Swain v. Boylston Ins. Co., 37 Fed. R. 
 766 ; Wilson v. W. U. Tel. Co., 34 Fed. R. 
 561 ; Kansas City & T. R, Co. v. Inter- 
 state Lumber Co., 37 Fed. R. 3; Burck 
 v. Taylor, 39 Fed. R. 581. 
 
 13 People's Bank v. Calhoun, 102 U. S. 
 256. 
 
 14 Insurance Co. v. Morse, 20 Wall. 445 ; 
 Barron v. Burnside, 121 U. S. 186. 
 
 15 Paul v. Virginia, 8 Wall. 168 ; Doyle 
 v. Continental Ins. Co., 94 U. S. 535; 
 Gloucester Ferry Co. v. Pennsylvania, 114 
 U. S. 196 ; Phila. Fire Ass'n v. New York, 
 119 U. S. 110; Barron v. Burnside, 121 
 
 U. S. 186 ; Chicago M. & St. P. Ry. Co.i>. 
 Becker, 32 Fed. R. 849. 
 
 1(i Hanover National Bank v. Smith, 
 13 Blatchf. 224. 
 
 § 384. i Hyde v. Ruble, 104 U. S. 407, 
 409; Fraser v. Jennison, 106 U. S. 191, 
 194 ; Ayres v. Wisvvall, 112 U. S. 187, 192 ; 
 Des Moines Nav. Co. v. Iowa Homestead 
 Co., 123 U. S. 552 ; Boyd v. Gill, 19 Fed. R. 
 145; Vinal v. Continental C. & I. Co., 34 
 Fed R. 228; Wabash, St. L. & P. Ry. Co. 
 v. Central Trust Co, 23 Fed. R. 513; 
 Count}' Court of Taylor County v. Balto. 
 & O. R. R. Co., 35 Fed. R. 161. 
 
 2 Fraser v. Jennison, 106 U. S. 191, 
 194 ; Ayres v. Wiswall, 112 U. S. 187, 
 1A2. But see Sp.er on Removal of 
 Causes, §§ 28-31.
 
 § 384.] SEPARABLE CONTROVERSIES. 571 
 
 An intervenor may thus remove a cause. 3 " Whatever might 
 be the rule if an intervenor presented some new and indepen- 
 dent interest or question, when he simply comes in to carry on 
 the litigation over the same issues and questions he acquires no 
 right of removal different from that possessed by him who had 
 been carrying on the litigation as his representative." 4 A con- 
 troversy is not separable when the defendant, who would other- 
 wise be entitled to remove the suit, is charged as jointly liable 
 with another defendant, who is a fellow-citizen of the plaintiff. 5 
 Such a case cannot be removed by the defendant whose citizen- 
 ship is different from that. of the plaintiff; even if the alleged 
 cause of action is both joint and several, whether in tort or con- 
 tract, if the plaintiff has sued the defendants jointly ; 6 nor if the 
 defendants have filed separate answers; 7 nor if one of them has 
 made a default; 8 nor if judgment has been entered against one 
 of them before the other was served with process; 9 nor if one 
 has not been served, and has not appeared when the other seeks 
 to remove the cause. 10 A case is not removable because a color- 
 able assignment has been made to give a State court exclusive 
 jurisdiction. 11 If it is claimed that some of the defendants were 
 improperly made parties for the sake of preventing a removal, 
 that fact must be proven to the Circuit Court by the peti- 
 tioner, 12 and then it might justify a removal. 13 The removal 
 
 3 Hack v. Chicago & G. S. Ry. Co., 23 U. S. 502 ; Weller v. J. B. Pace Tobacco 
 Fed. R. 356. Co., 32 Fed. R. 860; Anderson v. Apple- 
 
 4 Brewer, J., in Hakes v. Burns, 40 ton, 32 Fed. R. 855 ; Wilson v. Union 
 Fed. R. 33, 34. Saving Ass'n, 30 Fed. R. 521 ; Shaver 
 
 5 Hyde v. Ruble, 104 U. S. 407 ; Ayres v. Hardin, 30 Fed. R. 801. 
 
 p. "Wiswall, 112 U. S. 187, 193 ; Louisville 1 Pirie v. Tvedt, 115 U. S. 41 ; Sloane 
 
 & N. II. R. v. Ide, 114 U. S. 52 ; Putnam v. v. Anderson, 117 U. S. 275, 278. 
 
 Ingraham, 114 U. S. 57 ; St. Louis & S. F. 8 p u tnam v. Ingrahara, 114 U. S. 57 ; 
 
 R.R. v.Wilson, 114 U.S. 60; Pirie v. Tvedt, Brooks «?. Clark, 119 U. S. 502. 
 
 115 U. S. 41 ; Starin v. New York, 115 U. 9 Brooks v. Clark, 119 U. S. 502. 
 
 S.248; Sloane U.Anderson, 117 U.S. 275; 10 Ames v. Chicago, S. F. & C. Ry. Co., 
 
 Fidelity Ins. Co. v. Huntington, 117 U. S. 39 Fed. R. 881. 
 
 280; Core v. Vinal, 117 U. S. 347; Ply- « Waite, C. J., in Leather Manufac- 
 
 mouth Mining Co. v. Amador Canal Co., turers' Bank v. Cooper, 120 U. S. 778, 
 
 118 U. S. 204; Little v. Giles, 118 U. S. 781. 
 
 590; Brooks v. Clark, 119 U. S. 502. ' 2 Plymouth Mining Co. v. Amador 
 
 6 Louisville & N. R. R. Co. v. Ide, 114 Canal Co., 118 U. S. 264, 270; Leather 
 
 U. S. 52 ; St. Louis & S. F. R. R. v. Wil- Manufacturers' Bank v. Cooper, 120 U. S. 
 
 son, 114 U. S. 60; Pirie v. Tvedt, 115 778,781. 
 
 U. S. 41 ; Starin v. New York, 115 U. S. 13 Collins v. Wellington, 81 Fed. R. 
 
 248; Plymouth Mining Co. v. Amador 244. See Hax v. Caspar, 81 Fed. 11.499, 
 
 Canal Co., 118 U. S. 264; Little v. Giles, 501 ; Nelson v. Hennessey, 33 Fed. R. 
 
 118 U. S. 596; Brooks v. Clark, 119 113.
 
 572 REMOVAL OF CAUSES. [CHAP. XXIX. 
 
 takes the entire suit, not merely the separate controversy, into 
 the Federal court. 14 Section 737 of the Revised Statutes does 
 not affect the removal of causes. 15 
 
 § 385. Practice on Removal in General. — The method of re- 
 moving causes from State courts to Circuit Courts of the United 
 States, on grounds other than prejudice or local influence, or in 
 controversies between citizens of the same State claiming land 
 under grants of different States, is as follows: The defendant 
 must file in the State court, at or before the time when he is 
 obliged to answer or plead to the declaration or complaint, a 
 petition for the removal of the cause from the State court to the 
 Circuit Court held in the district where the suit is pending. He 
 must file therewith a bond, with a good and sufficient surety, for 
 his entering in the Circuit Court, at the first day of its next 
 session, a copy of the record in the suit, and for paying all costs 
 that may be awarded in the Circuit Court, if that court shall 
 hold that the suit was improperly removed ; and also for appear- 
 ing and entering special bail in the suit, if special bail was origi- 
 nally requisite therein. It is then the duty of the State court to 
 accept the petition and bond, if correct in form, and to proceed 
 no further in the suit. When the copy of the record is subse- 
 quently filed in time, the cause proceeds in the Circuit Court in 
 the same manner as if originally commenced there. 1 
 
 The petition must state the facts which warrant the removal 
 and give the Circuit Court jurisdiction. 2 These facts should be 
 stated positively, not on information and belief. 3 The jurisdic- 
 tional facts should be stated specifically. 4 A general allegation 
 in the language of the statute is insufficient. 5 When the right to 
 remove rests upon a difference in citizenship, the citizenship of 
 each of the parties should be alleged. 6 It is insufficient to state 
 their residence. 7 The allegation " that said plaintiffs as such 
 executors are citizens of the State of New York " was held in- 
 
 M Barney v. Latham, 103 U. S. 205. 96 U. S. 199 ; Grace v. American Central 
 
 1 5 See § 50. Ins. Co., 109 U. S. 278. 
 
 § 385. ! Act of March 3, 1875, §2(18 5 Gold Washing & Water Co. v. Keyes, 
 
 St. at L. ch. 137, p. 470), as amended by 96 U. S. 199 ; Grace v. American Central 
 
 act of March 3, 1837 (24 St. at L. ch. 373, Ins. Co , 109 U. S. 278; Carson v. Dun- 
 
 p. 552). ham, 121 U. S. 421. 
 
 2 Railway Co. v. Ramsey, 22 Wall. 322, 6 Grace v. American Central Ins. Co., 
 328 ; Grace v. American Central Ins. Co., 109 U. S. 278. 
 
 109 U. S. 278. 7 Grace v. American Central Ins. Co., 
 
 3 Wolff v. Archibald, 14 Fed. R. 369. 109 U. S. 278. 
 
 4 Gold Washing & Water Co. v. Keyes, 

 
 § 385.] PRACTICE OX REMOVAL IN GENERAL. 573 
 
 sufficient. 8 The petition in all cases not removed on account of 
 prejudice or local influence should show that the difference in 
 citizenship existed both at the time of the commencement of the 
 suit and at the time of the application for removal. 9 If, how- 
 ever, either or Loth of those facts are alleged with sufficient 
 precision in the pleadings, they need not be restated in the peti- 
 tion. 10 So, when a removal is claimed upon the ground that the 
 suit arises under the Constitution and laws of the United States, 
 the petition must state the facts showing that such is the case, 
 unless those facts appear in pleadings previously filed or served, 
 when such allegations may be incorporated into the petition by 
 reference. 11 The petition should also show that the matter in 
 dispute is the jurisdictional amount, unless this already appears 
 from the pleadings. 12 The petition need not be verified. 13 It 
 may be signed either by the petitioner or by his attorney in fact 
 or at law. 14 
 
 The bond must name a specific sum as the penalty. If the 
 place for the amount of the penalty is left blank, it is insuffi- 
 cient. 15 A penalty of $1,000 will ordinarily be sufficient when 
 the defendant has not been held to bail. 16 If the condition is 
 simply that the petitioner will file " copies of all process," it is 
 insufficient. 17 The following condition was held to be sufficient : 
 " If the said petitioners shall enter in the said circuit court of 
 the United States, on the first day of its next session, a cop)' of 
 the record in said suit, and shall well and truly pay all costs that 
 may be awarded by said circuit court of the United States, if 
 said court shall hold that said suit was wrongfully or improperly 
 removed thereto, and do or cause to be done such other and ap- 
 propriate acts as, by the acts of Congress approved March 3, 
 
 8 Amory v. Amory, 95 U. S. 186. But 13 Sweeney v. Coffin, 1 Dill. 73 ; Allen 
 see Cooke v. Seligraan, 7 Fed. R. 263. v. Ryerson, 2 Dill. 501 ; Ilouser v. Clay- 
 
 9 Gibson v. Bruce, 108 U. S. 561 ; H. & ton, 3 Woods, 273. See Removal Cases, 
 T. R. R Co. v. Shirley, 111 U. S. 358; 100 U. S. 457, 471. 
 
 Akers v. Akers, 117 U. S. 197; Stevens H Dennis v. Alachua County, 3 Woods, 
 
 v. Nichols, 130 U. S. 230; Jackson v. Al- 683; Wormser v. Dahlman, 16 Blatuhf. 
 
 ten, 132 U. S. 27. 319. See also Removal Cases, 100 U. S. 
 
 >« Bondurant v. Watson, 103 U. S. 281 ; 457. 
 
 Steamship Co. v. Tugman, 106 U. S 118. 15 Burdick v. Hale, 7 Biss. 96; Austin 
 
 11 Gold Washing & Water Co. v. Keyes, v. Gagan, 39 Fed. R. 620. 
 
 96 U. S. 199, 204 ; Trafton v. Nougues, 4 10 Blanchard v. Dwight, 12 Wend. (N. 
 
 Sawyer, 178; Carson v. Dunham, 121 Y.) 192. 
 
 U. S. 421. « Burdick v. Hale, 7 Biss. 96. 
 
 12 U. S. v. Pratt Coal & Coke Co., 18 
 Fed. R. 708.
 
 574 EEMOVAL OF CAUSES. [CHAP. XXIX. 
 
 1875, and other acts of Congress, are required to be done upon 
 the removal of a suit into the United States circuit court from 
 a State court." 18 When special bail was not originally requisite 
 in the action, the bond need contain no condition for the entry 
 of such bail in the Federal court. 19 The bond must provide for 
 the payment of costs in case of a remand. 20 The bond need not 
 be executed by the petitioner, if it have a principal and a suffi- 
 cient surety. 21 When the petitioner is named as principal, it 
 seems that it may be executed in his name by his attorney-at- 
 law. 22 It seems that the bond must be sealed by the parties 
 who execute it, 23 but that a scrawl seal without wax, or an im- 
 pression on the paper, will be sufficient. 24 A defect in the bond 
 may be cured by amendment, with leave of the court, or a new 
 bond may be filed, if leave to do so be obtained. 25 It is cus- 
 tomary to procure the approval of the bond by the State court. 
 Whether the Federal court has the power to approve the bond 
 after the State court has disapproved it, or to disapprove it 
 after the State court's approval, is unsettled. 26 It has been 
 held at circuit that " the want of acknowledgment or proof 
 of the execution of the bond was a matter of practice for 
 the State court to pass upon, and it will not be reviewed by 
 this court after the State court has accepted the bond." 27 Such 
 an objection cannot be raised for the first time in the Supreme 
 Court. 28 
 
 No order of the State court is essential to the removal. 29 It 
 is the safer practice to present both the petition and the bond 
 
 18 Cooke v. Seligman, 7 Fed. R. 263. Woods, 683, 688 ; Aycrs v. Watson, 113 
 
 19 Burck v. Taylor, 39 Fed. R. 581. U. S. 504, 598; Coburn v. Cedar Valley 
 
 20 Sheldrick v. Cockcroft, 27 Fed. R. L. & C. Co., 25 Fed. R. 791. 
 
 579; Webber v. Bishop, 13 Fed. R. 49; 2ii Compare Osgood v. Chicago, D. & V. 
 
 Torrey v. Grant Locomotive Works, 14 R. R. Co., 6 Biss. 330 ; Dennis v. County of 
 
 Blatchf. 2C9. But see Dennis v. County Alachua, 3 Woods, 683 ; Cooke v. Selig- 
 
 of Alachua, 3 Woods, 683, 688 ; Deford v. man, 7 Fed. R. 203 ; Fisk v. U. P. R. R. Co., 
 
 Mehaffy, 13 Fed. R. 481 ; and § 373. 6 Blatchf. 302 ; Taylor v. Shew, 54 N. Y. 
 
 21 Stevens v. Richardson, 20 Blatchf. 75; Mix v. Andes Ins. Co., 74 N. Y. 53; 
 53 ; s. c. 9 Fed. R. 191 ; Public Grain & Stone v. South Carolina, 117 U. S. 430 ; 
 Stock Exchange v. W. U. Tel. Co., 16 Carson v. Dunham, 121 U. S.4-J1; Shedd 
 Fed. R. 289 ; s. c. 11 Biss. 508. v. Fuller, 36 Fed. R. 609 ; Wilson v. W. U. 
 
 22 Dennis v. County of Alachua, 3 Tel. Co., 34 Fed. R. 561. 
 
 Woods, 683, 68". 27 Cooke v. Seligman, 7 Fed. R. 263, 
 
 23 U. S. v. Linn, 15 Tet. 220; Speer 269, per Blatchf ord, J. 
 
 on Removal of Causes, p. 119. 28 Removal Cases, 100 U. S. 457. 
 
 24 U. S. v. Stephenson, 1 McLean, 462; » Kern v. Huidekoper, 103 U. S. 485 ; 
 Speer on Removal of Causes, p. 119. Insurance Co. v. Dunn, 19 Wall. 214. 
 
 25 Dennis v. County of Alachua, 3
 
 § 386.] REMOVAL FOR PREJUDICE OR LOCAL INFLUENCE. 575 
 
 to the State court, not merely to file them in the clerk's 
 office. 30 The petition and bond may be filed in vacation. 31 
 If the defendant's time to plead or answer has been extended 
 by consent or order, it seems that the time to remove is like- 
 wise extended. 32 When, at the time of the defendant's pleading, 
 the value of the matter in dispute was below the jurisdictional 
 amount, and by amendment it was subsequently increased, it 
 was held that a removal might then be made. 33 It has been 
 held that a removal may be made after a motion to take the 
 bill off the file had been denied, 34 and after a demurrer had 
 been overruled, 35 and even after answer, 36 provided that the 
 time allowed the defendant to plead had not expired. It has 
 been held that where there are two defendants and but one con- 
 troversy, and the time for removal has expired as to one defend- 
 ant, it is too late for the other defendant to remove the cause, 
 although he had never been previously served. 37 
 
 § 386. Practice on Removal for Prejudice or Local Influence. — 
 The practice on the removal of cases for prejudice or local 
 influence under the present statute is not yet authoritatively 
 adjudicated. The material parts of the Act of 1887, as amended 
 in 1888, are as follows : — 
 
 " And where a suit is now pending, or may be hereafter 
 brought, in any State court, in which there is a controversy 
 between a citizen of the Stale in which the suit is brought and a 
 citizen of another State, any defendant, being such citizen of 
 another State, may remove such suit into the circuit court of the 
 United States for the proper district, at any time before the trial 
 thereof, when it shall be made to appear to said circuit court that 
 from prejudice or local influence he will not be able to obtain jus- 
 tice in such State court, or in any other State court to which the 
 said defendant may, under the laws of the State, have the right, 
 
 8 Shedd v. Fuller, 36 Fed R. 609. 83 Huskins v. Cincinnati, N. O. & T. P. 
 
 31 Osgood v. Chicago, D. & V. R. R. Ry. Co., 37 Fed. R. 504. 
 
 Co.,6Biss. 330. But see Shedd v. Fuller, « Tennessee Coal, L. & T. B. Co. v. 
 
 36 Fed. R. 609. Waller, 37 Fed. R. 545. 
 
 82 Winberg v. Berkeley Co. R. R. & 3 5 Tennessee Coal, L. & T. B. Co. r. 
 
 Lumber Co., 29 Fed. R, 721. But see Waller, 37 Fed. R. 545. 
 
 Pullman Palace Car Co. v. Speck, 113 86 Gavin v. Vance. 33 Fed. R. 84,92. 
 
 U. S. 84 ; Murray v. Holden,2 Fed. R. 740; See Rurck v. Taylor, 39 Fed. R. 681 
 
 Dixon v. W. U. Tel. Co., 38 Fed. R. 377. 37 Fletcher v. Hamlet, 116 Q. S. 408; 
 
 See also McEeen v. Ives, 35 Fed. R. 801 ; Houston & T. C R. R. To. ,-. Shirley, 111 
 
 Werlekind v. Southern Pac. Co., 36 Fed. U. S. 358. But see Mutual Life Ins. Co. 
 
 R- 279. r . Champlin, 21 Fed. R. 85.
 
 576 EEMOVAL OF CAUSES. [CHAP. XXIX. 
 
 on account of such prejudice or local influence, to remove said 
 cause : Provided, That if it further appear that said suit can be 
 fully and justly determined as to the other defendants in the 
 State court, without being affected by such prejudice or local 
 influence, and that no party to the suit will be prejudiced by a 
 separation of the parties, said circuit court may direct the suit 
 to be remanded, so far as relates to such other defendants, to the 
 State court, to be proceeded with therein. At any time before 
 the trial of any suit which is now pending in any circuit court, 
 or may hereafter be entered therein, and which has been re- 
 moved to said court from a State court on the affidavit of any 
 party plaintiff that he had reason to believe and did believe 
 that, from prejudice or local influence, he was unable to obtain 
 justice in said State court, the circuit court shall, on application 
 of the other party, examine into the truth of said affidavit and 
 the grounds thereof, and, unless it shall appear to the satisfaction 
 of said court that said party will not be able to obtain justice in 
 such State court, it shall cause the same to be remanded thereto. 
 Whenever any cause shall be removed from any State court into 
 any circuit court of the United States, and the circuit court 
 shall decide that the cause was improperly removed, and order 
 the same to be remanded to the State court from whence it 
 came, such remand shall be immediately carried into execution, 
 and no appeal or writ of error from the decision of the circuit 
 court so remanding such cause shall be allowed." 1 
 
 The previous statute on the subject, so far as material, was as 
 follows : " Any suit commenced in any State court, wherein the 
 amount in dispute, exclusive of costs, exceeds the sum or value 
 of five hundred dollars, to be made to appear to the satisfaction of 
 said Court, may be removed, for trial, into the Circuit Court, for 
 the district where such suit is pending, next to be held after 
 the filing of the petition for such removal hereinafter mentioned, 
 in the cases and in the manner stated in this section. . . . 
 When a suit is between a citizen of the State in which it is 
 brought and a citizen of another State, it may be so removed on 
 the petition of the latter, whether he be plaintiff or defendant, 
 filed at any time before the trial or final hearing suit, if, before or 
 at the time of filing said petition, he makes and files in said State 
 
 § 386. » 18 St. at L. ch. 137, p. 470 ed by 24 St. at L. ch. 373, p. 552; and 25 
 (1st Suppl. U. S. R. S. 173), § 2, as amend- St. at L. ch. 86G, p. 433.
 
 § 386.] REMOVAL FOR PREJUDICE OR LOCAL INFLUENCE. 577 
 
 court an affidavit stating that he has reason to believe and does 
 believe that from prejudice or local influence, he will not be able 
 to obtain justice in such State Court. 
 
 "In order to such removal, the petitioner in the cases aforesaid 
 must, at the time of filing his petition therefor, offer in said State 
 court good and sufficient surety for his entering in such circuit 
 court, on the first day of its session, copies of said process against 
 him, and of all pleadings, depositions, testimony, and other pro- 
 ceedings in the cause or in said cases where a citizen of the State 
 in which the suit is brought is a defendant, copies of all process, 
 pleadings, depositions, testimony, and other proceedings in the 
 cause concerning or affecting the petitioner, and also for his 
 there appearing and entering special bail in the cause, if special 
 bail was originally requisite therein. It shall thereupon be the 
 duty of the State court to accept the surety and to proceed no 
 farther in the cause against the petitioner, and any bail that shall 
 have been originally taken shall be discharged. 
 
 " When the said copies are entered as aforesaid in the circuit 
 court the cause shall then proceed in the same manner as if it 
 had been brought there by original process ; and the copies of 
 pleadings shall have the same force and effect, in every respect 
 and for every purpose, as the original pleadings would have had 
 by the laws and practice of the courts of such State if the cause 
 had remained in the State court." 2 
 
 How much, if any, of this part of the Revised Statutes is still 
 in force and how much has been repealed by implication, is 
 under the authorities a very doubtful question. 3 The prudent 
 practitioner will, when seeking to remove a case for prejudice or 
 local influence, comply with the provisions of the Revised Stat- 
 utes, and also with the practice in ordinary removal cases. It 
 seems that the petition should be presented to the Federal court, 
 and a certified copy of the same, with the proceedings thereon, 
 filed in the State court. 4 By the practice before the Act of 1SS7, 
 
 2 U. S. R. S. § 639. nati,N.O.&T.P.Ry. Co., 37 Fed. R." 604; 
 
 8 See Foster's Federal Judiciary Acts, Amy v. Manning, 38 Fed. R. 530; Robi- 
 
 pp. 33,56-58; Fisk v. Henarie, 32 Fed. R. B on v. Hardy, 38 Fed. R. 40 ; Malone v. 
 
 417; Hills ». Richmond & I). R. R. Co., Richmond & D. R. Co., 35 Fed. R. 025, 
 
 33 Fed. R. 81; Short v. Chicago, M. & 628, 629; Neale v. Foster, 31 Fed. R. 
 
 St. P. R. R. Co., 33 Fed. R. 114; s. c. 34 53, 55. 
 
 Fed. R. 225 ; Whelan v. N. Y. L. E. & W. 4 Malone p. Richmond & D. R. R. Co., 
 
 R. R., 35 Fed. R. 849; Southworth v. 35 Fed. R. 625; Kaitel v. Wylie, 38 Fed. 
 
 Hoi 1, 36 Fed. R. 451 ; Huskins v. Cincin- R. 865. 
 
 37
 
 578 KEMOVAL OF CAUSES. [CHAP. XXIX. 
 
 a cause might be removed for prejudice or local influence, upon 
 the filing by the defendant with his petition and bond of an affi- 
 davit " that he has reason to believe that from prejudice and local 
 influence he will not be able to obtain justice in the State court 
 in which the action is brought or in any other State court to 
 which he may be able to remove the action." 5 In the Fifth, 
 Sixth, and Ninth Circuits, it has been held that a defendant can 
 now remove a cause on such an affidavit, and that the truth of the 
 affidavit cannot be disputed. 6 In the Second, Fourth, Seventh, 
 and Eighth Circuits, it has been held, that the defendant must 
 state in his affidavits the facts which show the existence of the 
 prejudice and local influence; 7 and it would seem to follow that 
 in those circuits the opposite party is entitled to notice of the 
 application, and that a trial of fact as to the existence of the 
 prejudice or local influence will be had before the court. 8 It 
 has been held, that notice served three days before the hearing 
 is insufficient ; and in that case two weeks' additional time was 
 given to the party opposing the removal. 9 It seems that the 
 affidavit should be made by the party seeking the removal, 
 not by his attorney. 10 When the affidavit is made in another 
 State it must be attested so as to make it admissible according 
 to the practice of the court where the suit is pending before the 
 removal. 11 The clause divesting the court of jurisdiction over 
 pending causes was held to be constitutional, although the re- 
 moving party had expended a considerable sum of money 
 in taking testimony in the Circuit Court, after the removal 
 and before the Act of 1887, which testimony was not admis- 
 
 5 U. S. R. S. § 639. Fed. R. 536, Lacombe, J. ; s. c. 38 Fed. R. 
 
 6 Neale v. Foster, 31 Fed. R. 53, 55, 868, Wallace, J. ; Dennison v. Brown, 38 
 Deady, J. ; Fisk v. Henarie, 32 Fed. R. Fed. R. 535, Wallace, J. See Speer on 
 417, Deady, J. ; s. c. 35 Fed. R. 230, Removal of Causes, § 8, ch. vi. 
 Deady, J. ; Hills v. Richmond & D. R. R. 8 Malone v. Richmond & D. R. R. Co., 
 Co., 33 Fed R. 81, Newman, J. ; Whelan 35 Fed. R. 625 ; Robison v. Hardy, 38 
 v. N. Y. L. E. & W. R. R. Co., 35 Fed. R. Fed. R. 49 ; Short v. C. M. & St. P. R. R. 
 849, Jackson, J. ; Huskins v. Cincinnati, Co., 33 Fed. R. 114; s. c. 34 Fed. R. 225 ; 
 N. 0. & T. P. Ry. Co., 37 Fed. R. 504, Carson & Rand Lumber Co. v. Holtzclaw, 
 Key, J. 39 Fed. R. 578 ; s. c. 39 Fed. R. 885. 
 
 7 Short v. C. M. & St. P. R. R. Co., 33 9 Carson & Rand Lumber Co. v. Loltz- 
 Ferl. R. 114, Brewer, J. ; s. c. 34 Fed. R. claw, 39 Fed. R. 578. 
 
 225, Brewer, J. ; Southworth v. Reid, 36 10 Duff v. Duff, 31 Fed. R. 772 ; Speer 
 
 Fed. R 451, Bunn, J.; Hakes v. Burns, on Removal of Causes, § 17, p. 26, note. 
 
 40 Ferl. R. 33, Brewer, J. ; Malone v. n Bowen v. Chase, 7 Blatchf. 255 ; 
 
 Richmond & D. R. R. Co., 35 Fed. R. 625, Speer on Removal of Causes, § 18, p. 
 
 Harlan, J. ; Robison v. Hardy, 38 Fed. R. 26, note. 
 49, Blodgett, J. ; Amy v. Manning, 38
 
 § 387.] REMOVAL FOR PREJUDICE OR LOCAL INFLUENCE. 579 
 
 sible in the State court to which the case was remanded. 12 
 A case may be removed for prejudice or local influence by 
 any one of several defendants, 13 and whether the controversy 
 is separable or not. 14 But all the parties on one side of the 
 controversy must be citizens of different States from all of their 
 opponents. 15 It has been held at circuit that a suit to which an 
 alien is a party cannot be thus removed ; 16 that no suit can be 
 thus removed unless all the plaintiffs are citizens of the State 
 where the suit is brought ; 1: and that if the controversy is sep- 
 arable, the Circuit Court may remand to the State court so much 
 as does not affect the defendant who procured the removal ; 
 but that otherwise, the whole case remains in the Federal court. 18 
 It is unsettled, whether a case in which the matter in dispute 
 does not exceed $2,000 can be removed on account of prejudice 
 or local influence. 19 It is also unsettled whether the restriction 
 as to suits by assignees applies to removals for prejudice or local 
 influence. 20 It has been held that, on an application for such a 
 removal, the papers must show that the difference of citizenship 
 existed when the suit was commenced, as well as when the 
 petition is filed. 21 What constitutes a trial within the meaning 
 of the Act of 1887 is unsettled. Under the old practice, it was 
 held that the argument of a demurrer was a trial, 22 and in a 
 case at circuit, that the argument of a contested motion for a 
 
 12 Birdscye v. Schaeffer, 37 Fed. R. 821. Judge Key, in Haskins v. C. N. O. & T. P. 
 
 « Whelan v. N. Y. L. E. & W. R. R. Co., Ey. Co., 37 Fed. R. 504, Judge Shiras, in 
 
 35 Fed. R. 849; Fisk v. Henarie, 32 Fed. McDermott v. Chicago & N. W. Ry. Co., 
 
 R. 417. 38 Fed. R. 529, and Judge Speer, in his 
 
 14 Whelan v. N. Y. L. E. & W. R. R. Co., work on Removal of Causes, 62, seem to be 
 35 Fed. R. 849. of a contrary opinion. 
 
 15 Jefferson v. Driver, 117 TJ. S. 272; 20 See Claflin v. Commonwealth Insur- 
 CambriaIronCo.«.Asliburn,118U. S.54; ance Company, 110 U. S. 81; Bell v. 
 Young v. Parker's Adm'r, 132 U. S. 267. Noonan, 19 Fed. R. 225; Malone v. Rich- 
 
 16 Cohn v. Louisville, N. O. & T. R. R. mond & D. R. R. Co., 35 Fed. R. 625. 
 Co., 39 Fed. R. 227. 21 y 0U ng v. Ewart, 132 U. S. See 
 
 17 Thomson v. East Tennessee & G. Johnson v. Monell, Woohv. 390, 397; 
 Ry. Co., 38 Fed. R. 673. Miller v. Chicago, B. & Q. R. R. Co., 17 
 
 is Whelan v. N. Y. L. E. & W. R. R. Co., Fed. R. 97 ; Sands v. Smith, 1 Dill. 290 ; 
 
 35 Fed. R. 849. But see Jefferson v. Cook v. Whitney, 3 Woods, 715 ; Hone 
 
 Driver, 117 U. S. 272; Cambria Iron Co. v. Dill. 29 Fed. R. 465; Frelinghuysen 
 
 v. Asliburn, 118 U. S. 54; Young v. Par- v. Baldwin, 19 Fed. R. 49; Schnadig v. 
 
 ker's Adm'r, 132 U. S. 267. Flescher, 29 Fed. R. 465. 
 
 19 In Malone v. Richmond &D.R.R. Co., 22 Alley v. Nott, 111 U. S. 472 ; Scharff 
 
 35 Fed. II. 625, 626, Mr. Justice Harlan, v. Levy, 112 U. S. 711 ; Gregory v Hart- 
 
 and in Carson & Rand Lumber Co. v. ley, 113 U. S. 742. But see Hone v. 
 
 Holtzclaw, 39 Fed. R. 678, Judge Thayer Dillon, 29 Fed. R. 465. 
 held that such a case cannot be removed.
 
 580 REMOVAL OF CAUSES. [CHAP. XXIX. 
 
 preliminary injunction and an appeal from the order was a trial. 23 
 Since the Act of 1887, a few cases at circuit have held that 
 the argument of a demurrer was not a trial. 24 The entry of 
 an order taking a bill as confessed is not a trial. 25 
 
 § 387. Practice on Removals of Suits containing Controversies 
 between Citizens of the same State, claiming Land under Grants of 
 different States. — The statute regulating the removals of suits in 
 which there is a controversy between citizens of the same State 
 claiming land under grants of different States, is as follows: " If 
 in any action commenced in a State court the title of land be 
 concerned, and the parties are citizens of the same State, and the 
 matter in dispute exceed the sum or value of two thousand dol- 
 lars, exclusive of interest and costs, the sum or value being made 
 to appear, one or more of the plaintiffs or defendants, before the 
 trial, may state to the court, and make affidavit, if the court re- 
 quire it, that he or they claim, and shall rely upon a right or title 
 to the land under a grant from a State, and produce the original 
 grant, or an exemplification of it, except where the loss of public 
 records shall put it out of his or their power, and shall move that 
 any one or more of the adverse party inform the court whether 
 he or they claim a right or title to the land under a grant from 
 some other State, the party or parties so required shall give such 
 information, or otherwise not be allowed to plead such grant, or 
 give it in evidence upon the trial ; and if he or they inform that 
 he or they do claim under such grant, any one or more of the 
 party moving for such information may then, on petition and 
 bond, as herein before mentioned in this act, remove the cause 
 for trial to the Circuit Court of the United States next to be 
 holden in such district; and any one of either party removing 
 the cause shall not be allowed to plead or give evidence of any 
 other title than that by him or them stated as aforesaid as the 
 ground of his or their claim." 1 
 
 § 388. Practice in Removal of Suits against Revenue Officers, 
 and Officers of either House of Congress. — 111 the removal of 
 
 23 Chicago, I & N. P. R. R Co. >• Min- 25 Fed. R. 65. See also Removal Cases, 
 
 nesota & N. \V. R. R. Co , 29 Fed. R. 337. 100 U. S. 457, 473; Maloy v. Duden, 25 
 
 2+ Whelan v. N. Y. L. E & W. R. R. Co., Fed R. 673. 
 
 35 Fed. R. 849 ; Fisk v. Henarie, 32 Fed. § 387. * Act of March 3, 1875 (18 St. 
 
 R. 417. 425. Contra, Lookout Mountain at L. eh. 137, p. 470). § 3, as amended 
 
 R. R. Co. v. Houston, 32 Fed. R. 711. by act of March 3, 1887 (24 St. at L. ch. 
 
 25 McHenry v. N. Y. P. & O. R. R. Co., 373).
 
 § 388.] REMOVAL OF SUITS AGAINST REVENUE OFFICERS. 581 
 
 proceedings, civil or criminal, against revenue officers of the 
 United States, persons who are or have been officers of either 
 House of Congress, for acts done by them in the discharge 
 of their official duty, the practice is regulated by the Revised 
 Statutes as follows : The petition must set forth the nature 
 of the suit or prosecution, and be verified by affidavit ; and, 
 together with a certificate signed by an attorney or counsel- 
 lor-at-law of some court of record of the State where such 
 suit or prosecution is commenced, or of the United States, 
 stating that, as counsel for the petitioner, ne has examined the 
 proceedings against him,. and carefully inquired into all the 
 matters set forth in the petition, and that he believes them to 
 be true, it must be presented to the Circuit Court, if in session, 
 or if it be not, to the clerk thereof at his office, and filed in said 
 office. The cause is thereupon entered on the docket of the 
 Circuit Court, and proceeds as a cause originally commenced in 
 that court; but all bail and other security given upon such suit 
 or prosecution continue in like force and effect as if the same 
 had proceeded to final judgment and execution in the State 
 court. When the suit is commenced in the State court by sum- 
 mons, subpoena, petition, or another process, except capias, the 
 clerk of the Circuit Court issues a writ of certiorari to the State 
 court, requiring it to send to the Circuit Court the record and 
 proceedings in the cause. When it is commenced by capias or 
 any other similar form of proceeding by which a personal arrest 
 is ordered, the clerk issues a writ of habeas corpus cum causa, a 
 duplicate of which must be delivered to the clerk of the State 
 court, or left at his office by the marshal of the district, or his 
 deputy, or by some person duly authorized thereto ; and thereupon 
 it is the duty of the State court to stay all further proceedings in 
 the cause ; and the suit or prosecution, upon delivery of such 
 process, or leaving the same as aforesaid, is held to be removed 
 to the Circuit Court, and any further proceedings, trial, or judg- 
 ment therein in the State court is void. If the defendant in the 
 suit or prosecution be in actual custody on mesne process therein, 
 it is the duty of the marshal, by virtue of the writ of habeas corpus 
 cum causa, to take the body of the defendant into his custody, to 
 be dealt with in the cause according to law and the order of the 
 Circuit Court, or, in vacation, of any judge thereof; and if, upon 
 the removal of such suit or prosecution, it is made to appear to
 
 582 
 
 REMOVAL OF CAUSES. 
 
 [chap. XXIX. 
 
 the Circuit Court that no copy of the record and proceedings 
 therein in the State court can be obtained, the Circuit Court 
 may allow and require the plaintiff to proceed de novo, and to 
 file a declaration of his cause of action, and the parties may 
 thereupon proceed as in actions originally brought in said Circuit 
 Court. On failure of the plaintiff so to proceed, judgment of 
 non prosequitur may be rendered against him, with costs for the 
 defendant. 1 
 
 § 389. Practice in Removal of Cases arising under Civil Rights 
 Laws. — Upon the filing of a petition for the removal of a case 
 arising under the civil rights laws, the Revised Statutes provide 
 that " all further proceedings in the State courts shall cease, and 
 shall not be resumed except as hereinafter provided. But all 
 bail and other security given in such suit or prosecution shall 
 continue in like force and effect, as if the same had proceeded to 
 final judgment and execution in the State court. It shall be the 
 duty of the clerk of the State court, to furnish such defendant, 
 petitioning for a removal, copies of said process against him, and 
 of all pleadings, depositions, testimony and other proceedings in 
 the case. If such copies are filed by said petitioner in the 
 Circuit Court on the first day of its session, the cause shall pro- 
 ceed therein in the same manner as if it had been brought there 
 by original process : and if the said clerk refuses or neglects to 
 furnish such copies, the petitioner may thereupon docket the 
 case in the Circuit Court, and the said court shall then have 
 jurisdiction therein, and may, upon proof of such refusal or 
 neglect of said clerk, and upon reasonable notice to the plaintiff, 
 require the plaintiff to file a declaration, petition or complaint 
 in the cause ; and, in case of Ids default, may order a nonsuit 
 and dismiss the case at the costs of the plaintiff, and such dis- 
 missal shall be a bar to an}' further suit touching the matter in 
 controversy. But if, without such refusal or neglect of said 
 clerk to furnish such copies and proof thereof, the petitioner for 
 removal fails to file copies in the Circuit Court as herein pro- 
 vided, a certificate under the seal of the Circuit Court, stating 
 such failure, shall be given, and upon the production thereof in 
 said State court, the cause shall proceed therein as if no petition 
 for a removal had been filed." 1 "When all acts necessary for the 
 
 § 388. i U. S. R. S. § 643 ; 18 St. at L. 
 ch. 130, § 8 401 ; 1 Supp. U. S. K. S. p. 165. 
 
 § 389. i U. S. R. S. § 641.
 
 § 390.] FILING OF RECORD. 583 
 
 removal of any suit or prosecution, as provided in the preceding 
 section, have been performed, and the defendant petitioning for 
 such removal is in actual custod}'- on process issued by said State 
 court, it shall be the duty of the clerk of said Circuit Court to 
 issue a writ of habeas corpus cum causa, and of the marshal, by 
 virtue of said writ, to take the body of the defendant into cus- 
 tody, to be dealt with in said Circuit Court according to law and 
 the orders of said court, or in vacation, of any judge thereof; 
 and the marshal shall file with or deliver to the clerk of said 
 State court a duplicate copy of said writ." 2 
 
 § 390. Filing of Record. — The statute regulating the filing 
 of the record after a removal is as follows : " That in all causes 
 removable under this act, if the term of the Circuit Court to 
 which the same is removable, then next to be holden, shall com- 
 mence within twenty days after filing the petition and bond in 
 the State court for its removal, then he or they who apply to 
 remove the same shall have twenty days from such application 
 to file said copy of record in said Circuit Court and enter appear- 
 ance therein; and if done within said twenty days, such filing 
 and appearance shall be taken to satisfy the said bond in that 
 behalf ; that if the clerk of the State court in which any such 
 cause shall be pending shall refuse to any one or more of the 
 parties or persons applying to remove the same a copy of the 
 record therein, after tender of legal fees for such copy, said clerk 
 so offending shall be deemed guilty of a misdemeanor, and, on 
 conviction thereof in the Circuit Court of the United States to 
 which said action or proceeding was removed, shall be punished 
 by imprisonment not more than one year, or by fine not exceed- 
 ing one thousand dollars, or both, in the discretion of the court. 
 And the Circuit Court to which any cause shall be removable 
 under this act shall have power to issue a writ of certiorari to 
 said State court, commanding said State court to make return of 
 the record in any such cause removed as aforesaid, or in which 
 any one or more of the plaintiffs or defendants have complied 
 with the provisions of this act for the removal of the same, and 
 enforce said writ according to law; and if it shall be impossible 
 for the parties or persons removing any cause under this act, or 
 complying with the provisions for the removal thereof, to obtain 
 such copy, for the reason that the clerk of said State court 
 
 2 U. S. R. S. § 642.
 
 584 REMOVAL OF CAUSES. [dlAP. XXIX. 
 
 refuses to furnish a copy, on payment of legal fees, or for any 
 other reason, the Circuit Court shall make an order requiring the 
 prosecutor in any such action or proceeding to enforce forfeiture 
 or recover penalty as aforesaid, to file a copy of the paper or pro- 
 ceeding by which the same was commenced within such time as 
 the court may determine; and in default thereof the court shall 
 dismiss the said action or proceeding. But if said order shall he 
 complied with, then said Circuit Court shall require the other 
 party to plead, and said action or proceeding shall proceed to 
 final judgment ; and the said Circuit Court may make an order 
 requiring the parties thereto to plead de novo ; and the bond 
 given, conditioned as aforesaid, shall be discharged so far as it 
 requires copy of the record to be filed as aforesaid." 1 The fail- 
 ure to file a copy of the record on or before the first day of its 
 next session does not deprive the Federal court of jurisdiction to 
 proceed in the suit ; and that court has power to allow the 
 record to be subsequently filed. 2 If the removing party is forced 
 by his adversaiy to remain in the State court, such adversary 
 waives the requirement of the law as to the time of filing the 
 record until the State court lets go its jurisdiction. 3 It has been 
 held, at circuit, that before the first day of the succeeding term 
 either party may obtain leave from the Circuit Court to file the 
 record, 4 or even file the record without such leave ; 5 and that, 
 after the record is filed, the Federal court has jurisdiction to 
 remand the case 6 or grant a provisional remedy; 7 but that the 
 cause cannot be heard and determined until the time named in 
 the bond has expired. 8 Where the Circuit Court is held in differ- 
 ent places in the district, the record must be filed in the clerk's 
 
 § 300. 1 Act of March 3, 1875 (18 St. 5 Anderson i\ Appleton, 32 Fed. R. 855. 
 
 at L. ch. 137, p. 470), § 7, as re-enacted See Deblanco v. Singletary, 40 Fed. R. 
 
 by act of March 3, 1887 (24 St. at L. 177. 
 ch. 373). 6 Anderson v. Appleton, 32 Fed. R. 
 
 2 St. Paul & C. R. R. Co. v. McLean, 855 ; Deblanco v. Singletary, 40 Fed. R. 
 108 U. S. 212, 216 ; Railroad Co. v. Koontz, 177. But see Railroad Co. v. Koontz, 104 
 104 U. S. 5; Bright v. Milwaukee & St. U S. 5. 
 
 P. R. R. Co., 14 Blatchf. 214 ; Winchell 7 Mahoney Mining Co. v. Bennett, 4 
 
 v. Coney, 27 Fed. R, 482 ; Rowell v. Hill, Saw. 289 ; C. & S. Bank of San Jose' v. 
 
 28 Fed. R. 433; McGregor v. McGillis, Corbett, 5 Saw. 172; Kansas City & T. 
 
 30 Fed. R. 388. R.v- Co. v. Interstate Lumber Co., 36 
 
 3 Railroad Co. v. Koontz, 104 U.S. 5, 16. Fed. R. 9. 
 
 4 Mahoney Mining Company v. Ben- 8 Matter of Barnesville & M. R. R. 
 nett, 4 Sawyer, 289 ; Commercial & Sav- Co., 2 McCrary, 216. But see Delbanco 
 ings Bank of San Jose' v. Corbett, 5 Saw. v. Singletary, 40 Fed. R. 177. 
 
 172.
 
 § 391] PRACTICE AFTER REMOVAL. 585 
 
 office at that place where the suit was pending in the State court, 
 or in the nearest and most convenient place to that where the 
 court is held. 9 The pleadings are part of the record, which 
 must he filed. 10 So are all depositions on file in the State 
 court. 11 
 
 § 391. Practice after Removal. — The statute provides " that 
 the Circuit Court of the United States shall, in all suits removed 
 under the provisions of this act, proceed therein as if the suit had 
 been original]}' commenced in said Circuit Court, and the same 
 proceedings had been taken in such suit in said Circuit Court as 
 shall have been had therein in said State court prior to its re- 
 moval." 1 If the suit in the State court is in its nature an action 
 at common law, no repleader is necessary after the removal. 2 
 When it is in its nature equitable, a repleader is customaiy, but 
 not indispensable if the allegations in the pleading in the State 
 court are sufficient. 3 When the suit in the State court unites 
 legal and equitable grounds of relief or defense, as authorized 
 by the State statute, it may be recast into two cases after the 
 removal. 4 In such a case a repleader is necessary. 5 The neces- 
 sity of a repleader may be raised by a motion for a repleader 6 as 
 well as by a demurrer. If no repleader is then had, so much 
 of the pleadings as presents matters not cognizable on that side 
 of the court to which the case is removed will be stricken out 
 or disregarded, without prejudice to its presentation in a new 
 suit. 7 When the plaintiff proceeds after removal upon the wrong 
 side of the court, the proper practice is to sustain a demurrer 
 to his pleading, without prejudice to his right to replead on the 
 
 9 Cobb v. Globe Mutual Life Ins. Co., Memphis & 0. R. P. Co., 19 Federal Re- 
 
 3 Hughes, 452. porter, 273 
 
 10 McBratney v. Usher, 1 Dill. 367. * Perkins v. Hendry x, 23 Fed. R. 418; 
 
 " Miller v. Tobin, 18 Fed. R. 609. Lacroix v. Lyons, 27 Fed. R. 403; La 
 
 § 391. i Act of March 3, 1875 (18 St. Mothe Manuf. Co. v. National Tube 
 
 at L. ch. 137, p. 470), § 6, as re-enacted Works Co., 15 Blatcbf. 432 ; Phelps v. 
 
 in act of March 3, 1887 (24 St. at L. Elliott, 26 Fed. R. 881 ; Northern Pacific 
 
 ch. 373). R. B. Co. v. Paine, 119 U. S. 561. 
 
 2 Dart v. McKinney, 9 Blatcbf. 359; 5 Hurt w.Hollingsworth, 100 U. S. 100; 
 
 Merchants' & M. National Hank v. Wheel- Lacroix v. Lyons, 27 Fed. R. 403. 
 er, 13 Blatcbf. 218; Bills v. New Orleans, c Whittenton o Memphis & <). R. R. 
 
 St. L. & C. R. R. Co., 13 Blatchf. 227. Co., 19 Fed. R. 27:: 
 But see Whittenton v. Memphis & O. ~ Perkins v. Hendryx, 23 Fed. R. 418 ; 
 
 R. P. Co., 19 Fed. R. 273; Northern Lacroix v. Lyons, 27 Fed. R. 103; La 
 
 Pacific R. R. Co. v. Paine, 119 U. S. Mothe Manuf. Co. v. National Tube 
 
 56L Works Co., 15 Blatchf. 432; Phelps v. 
 
 s Dillon on Removal of Causes, § 47 Elliott, 20 Fed. R. 881 ; Northern Pacific 
 
 (4th ed.), p. 76. But see Whittenton v. R. R. Co. v. Paine, 119 U. S. 561, 563.
 
 586 EEMOVAL OF CAUSES. [CIIAP. XXIX. 
 
 other side of the court. 8 It has been held in the Eighth Cir- 
 cuit that, if the suit is of an equitable nature, the defendant's 
 right to plead does not expire till the second rule-day after 
 his appearance, although his answer was clue when the petition 
 for a removal was filed. 9 In the Second and Fourth Circuits, 
 it has been said that the time for pleading in equity and at 
 common law is suspended until the record is filed, and then 
 begins to run again, computing with it the time which had 
 passed in the State court before the removal. 10 In the Sixth 
 Circuit the rule seems to be, that the running of the time to 
 plead is suspended till the time fixed by the statute for the filing 
 of the record, although the record is filed by order of the court 
 before the statutory time. 11 It seems that the filing of a petition 
 and bond for removal, if not accompanied by a general appear- 
 ance, does not prevent a motion in the Federal court to set aside 
 the service of the process and dismiss the suit for want of juris- 
 diction of the person. 12 It was held, under the Act of 1875, that 
 when a defendant was properly within the jurisdiction of the 
 State court, he could not, after the removal, have the suit dis- 
 missed upon the ground that he was not served within that 
 Federal district. 13 " Wherever there is a total absence of juris- 
 diction over the subject-matter in the State court, so that it had 
 no power to entertain the suit in which the controversy was 
 sought to be litigated in its then existing or any other form, 
 there can be no jurisdiction in the Federal court to entertain it 
 on removal, although in some other form it would have plenary 
 jurisdiction over the case made between the parties." 14 If after 
 amendment the pleadings do not allege the jurisdictional facts, 
 the suit will not be dismissed if they appear in the petition for 
 the removal. 15 After a petition and bond for a removal have 
 
 8 Perkins v. Hendryx, 23 Fed. R. 418, Kennedy, 25 Fed. R. 785. But see Sayles 
 419. But see Pilla v. German School v. N. W. Ins. Co., 2 Curt. 212 ; Edwards v. 
 Ass'n, 23 Fed. R. 700, 702; Phelps v. Conn. Mutual Life Ins. Co., 20 Fed. R. 
 Elliott, 26 Fed. R. 881, 883. 452 ; and §§ 100-101. 
 
 9 Webster v. Crothers, 1 Dill. 301. 13 Friezen v. Allemania Fire Ins. Co., 
 But see Heidecker v. Red Star Line S. S. 30 Fed. R. 349. 
 
 Co., 32 Fed. R. 706. " Fidelity Trust Co. v. Gill Car Co., 
 
 w Heidecker v. Red Star Line S. S. Co., 25 Fed. R. 737, 739, per Hammond, J. 
 
 32 Fed. R. 706 ; Pelzer Manuf . Co. v. St. Same point, Hummel v. Moore, 25 Fed. R. 
 
 Paul Fire & Marine Ins. Co..40Fed. R. 185. 380; Sutro v. Simpson, 14 Fed. R. 370 ; 
 
 11 Torrent v. S. K. Martin Lumber Goldstein v. New Orleans, 38 Fed. R. 626. 
 
 Co.. 37 Fed. R. 727. Contra, Kelly v. Virginia Protection Ins. 
 
 !2 Hendrickson v. Chicago, R. I. & P. Co., 3 Hughes, 449. 
 
 R. R, Co., 22 Fed. R. 569; Kauffman v. 15 Briges v. Sperry, 95 U. S. 401. 

 
 § 391.] PRACTICE AFTER REMOVAL. 5S7 
 
 been filed, the pleading cannot be so amended by a redaction of 
 the amount involved as to defeat the jurisdiction of the Circuit 
 Court. 13 It has been said, that if the amount in dispute when 
 the suit is commenced is sufficient to authorize a removal, no 
 subsequent event can defeat the right to remove. 17 But there is 
 a ruling at circuit to the contrary. 18 After a Circuit Court of 
 the United States has once rightfully acquired, jurisdiction of a 
 cause by removal or original process, an amendment bringing in 
 new parties or a new cause of action will not ordinarily defeat 
 the jurisdiction. 19 The decisions of the State court made in the 
 case before its removal will ordinarily be followed by the Circuit 
 Court. 20 If it is desired, to renew a motion which the State 
 court has denied, leave to make the application should first be 
 applied for and obtained. 21 When, however, at the time of a 
 removal, a motion was pending to resettle an order previously 
 made, the Circuit Court entertained the application, though it 
 refused to review the decision upon which that order had been 
 entered. 22 If the jurisdictional facts are not stated in the peti- 
 tion, an amendment stating them cannot be allowed in the 
 Federal court. 23 It has been said that if they are stated infor- 
 mally, such an amendment may be allowed. 24 An answer may 
 be treated as an amendment to a petition. 25 An amendment 
 cannot be allowed in the Supreme Court. 26 When a case has 
 been remanded a second petition on the same grounds cannot be 
 filed. 27 But a removal can be made for prejudice or local influ- 
 ence after a case sought to be removed for difference of citizen- 
 
 16 Kanouse v. Martin, 15 How. 198; 21 Carrington v. Florida R. It. Co., 9 
 
 Green v. Custard, 23 How. 484 ; Wright Blatchf. 468. 
 
 v. Wells, 1 Pet. C. C. 220; Roberts v. 22 Milligan v. Lalance & G. Manuf. Co., 
 
 Nelson, 8 Blatchf. 74. 17 Fed. R. 405. 
 
 « Roberts v. Nelson, 8 Blatchf. 74. a Crehore v. Ohio & M. Rv. Co., 131 
 
 18 Maine v. Oilman, 11 Federal Re- TJ. S. 240; Jackson v. Allen," 132 U. S. 
 porter, 214. 27. 
 
 19 Ober v. Gallagher, 93 U. S. 199, 24 Avers p. Watson. 113 TJ. S. 594, 598; 
 206; Stewart v. Dunham, 115 U. S. Carson p. Dunham, 121 P. S. 421. But 
 61,64. see Crehore v. Ohio & M. Rv. Co., 131 
 
 2 « Bryant r. Thompson. 27 Fed. R. 881; U. S. 210 ; Winnemans >: Edgington, 27 
 
 Loomisw. Carrington, 18 Fed. R 97; Dun- Fed. R. 324, 326; Freeman p. Butler, 39 
 
 can v. Gegan, 101 U. S. 810; Milligan v. Fed. R. 1 ; Jackson v. Allen, 132 U. s' 27. 
 Lalance & G. Manuf. Co., 21 Blatchf. 25 Carson v Dunham, 121 D. S. 421. 
 407; Bnshnell v. Kennedy, 9 Wall. 387; 26 Cameron v Hodges, 127 V. S 322. 
 Davis p. St. Louis & S. F. R. R. Co., 25 27 St Paul & c . R. R. Co. v. McLean, 
 
 Fed. R. 786. But see Spring Co. v. 108 U. S. 212, 217. 
 Knowlton, 103 U. S. 49.
 
 588 REMOVAL OF CAUSES. [CHAP. XXIX. 
 
 ship alone has been remanded. 28 It has been held at circuit that, 
 after the time for a removal has expired, a bond previously filed 
 can be amended, or a new bond substituted for an error or in- 
 formality, 29 such as an error in the name of the obligee ; but 
 not as regards an error of substance, such as the omission of any 
 sum in the penal clause, 30 or the omission of the provision for the 
 payment of costs; 31 and that an order allowing a bond to be 
 filed nunc pro tunc, as of the date of the filing of the petition, 
 cannot be granted after the time for removal has expired. 32 
 
 § 392. Effect of Removal. — The statute prescribes as follows 
 concerning the effect of a removal : " That when any suit shall 
 be removed from a State court to a Circuit Court of the United 
 States any attachment or sequestration of the goods or estate of 
 the defendant had in such suit in the State court shall hold the 
 goods or estate so attached or sequestered to answer the final 
 judgment or decree in the same manner as by law they would 
 have been held to answer final judgment or decree had it been 
 rendered by the court in which such suit was commenced ; and 
 all bonds, undertakings, or security given by either party in such 
 suit prior to its removal shall remain valid and effectual, not- 
 withstanding said removal ; and all injunctions, orders, and other 
 proceedings had in such suit prior to its removal shall remain in 
 full force and effect until dissolved or modified by the court to 
 which such suit shall be removed." x The Act of 1875 provided 
 that upon a removal " any bail that may have been previously 
 taken shall be discharged/' This clause is repealed by the Act 
 of 1887, and such bail is now, therefore, a security which remains 
 in force. A stipulation made before removal may be enforced 
 afterward. 2 It has been held at circuit, that, after removal, the 
 Federal court may authorize its marshal to take into his custody 
 property held by the sheriff under a writ of the State court 
 issued before the removal. 3 A receiver appointed before the 
 
 2* Birdseye v. Shaeffer. 37 Fed. R. 821. 32 Austin v. Gagan, 39 Fed. R. 626. 
 
 29 Harris v. Delaware, L. & W. R. Co., § 392. J Section 4 of act of March 3, 
 
 18 Fed. R. 833; Beede v. Cheeney, 5 Fed. 1875 (18 St. at L. ch. 137, p. 470); as 
 
 R. 388 ; Deford v. Mehaffy, 13 Fed. R 481. amended in act of March 3, 1887 (24 St. 
 
 3 « Austin v. Gagan, 39 Fed. R. 626 ; at L. ch. 373). 
 
 Burdick V. Hale, 7 Biss. 96. - Phelps v. Canada Cent. R. Co., 19 
 
 31 Torrey v. Grant Locomotive Works, Fed. R. 801. 
 
 14 Blatchf. 269; Webber v. Bishop, 13 3 Friedman v. Israel, 26 Fed. R. 801. 
 
 Fed. R. 40. Contra, Deford v. Mehaffy, See Dennistoun v. Draper, 5 Blatchf 
 
 13 Fed. R. 481. 336.
 
 § 393.] REMAND. 589 
 
 removal of the case remains in possession until himself removed, 
 and may be required to account in the Federal court. 4 It has 
 been held at circuit, that the Federal court cannot after re- 
 moval punish a party for his violation before the removal of an 
 order of the State court. 5 An order of the State court for the 
 examination of a party before trial under § 870 of the New York 
 Code of Civil Procedure must be vacated after removal by the 
 Federal court. 6 It was held at circuit, in a case where, before 
 the removal, a deposition had been taken down in shorthand, 
 but not signed, that the Federal court could not compel the 
 witness to sign the deposition. 7 
 
 § 393. Remand. — The statute provides: " That if, in any suit 
 commenced in a Circuit Court, or removed from a State court to 
 a Circuit Court of the United States, it shall appear to the satis- 
 faction of said Circuit Court at any time after such suit has been 
 brought or removed thereto, that such suit does not really and 
 substantially involve a dispute or controversy properly within the 
 jurisdiction of said Circuit Court, or that the parties to said suit 
 have been improperly or collusively made or joined, either as 
 plaintiffs or defendants, for the purpose of creating a case cogni- 
 zable or removable under this act, the said Circuit Court shall 
 proceed no further therein, but shall dismiss the suit or remand 
 it to the court from which it was removed, as justice may require, 
 and shall make such order as to costs as shall be just." A case 
 which was properly removed cannot be remanded by consent. 1 
 A remand for want of jurisdiction may be made at the motion of 
 the party who removed the case. 2 Such a motion may be made 
 after a verdict, 3 or it seems after judgment against the moving 
 party ; 4 or the judgment may be reversed and a remand ordered 
 upon an appeal by the party who removed the cause. 5 
 
 In a case where the remand was thus made after a verdict 
 against the removing party, no costs w r ere imposed. In the 
 
 4 Hinckley v. Railroad Co., 100 U. S. Swan, 111 IT. S. 379 ; Lazensky v. Knights 
 
 153; Mack v. Jones, 31 Fed. R. 189, 196. of Honor, 32 Fed. R. 417; Ferguson v. 
 
 6 Kirk v. Milwaukee D. C. Manuf . Co., Ross, 38 Fed. R. 161. 
 26 Fed. R. 501. But see Williams, M. & 3 Ferguson v. Ross, 38 Fed. R. 161. 
 
 R. Co. v. Raynor, 7 Biss. 215. But see Davies v. Lathrop, 13 Fed. R. 
 
 6 Ex parte Fisk, 113 U. S. 713. See 565. 
 
 § 372. 4 Lazensky p. Knights of Honor, 32 
 
 7 Arnold v. Kearney, 29 Fed. R. 820. Fed. R. 417. 
 
 § 393. i Lawtou v. Blitch, 30 Fed. R. 6 Mansfield, C. & L. M. Ry. Co. v. 
 641. Swan, 111 U. S. 379. 
 
 2 Mansfield, C. & L. M. Ry. Co. v. 6 Ferguson v. Ross, 38 Fed. R. 161.
 
 590 
 
 REMOVAL OF CAUSES. 
 
 [CHAP. XXIX. 
 
 Supreme Court, when a judgment or decree is reversed for want 
 of jurisdiction, costs are imposed upon the party who sought the 
 jurisdiction of the court below, either by original process or by 
 removal, whether he is respondent or appellant. 7 
 
 The costs imposed upon a remand are the docket fee of $20, 
 and such taxable disbursements as have been incurred in the 
 Federal court; 8 but not disbursements incurred in the State 
 court after the petition for a removal was filed. 9 
 
 A delay of a year after the filing of a petition for a removal 
 was held a waiver of the objection that such petition was filed 
 too late ; I0 but delay does not waive a jurisdictional defect. 11 
 
 The better practice, if it is intended to deny any of the allega- 
 tions in the petition for a removal, is to file a plea in abatement ; ia 
 but it seems that this is not indispensable. 13 When any allegation 
 in the petition is denied, the burden of proof rests on the peti- 
 tioner. 14 All questions of this sort must be tried in the Federal 
 court. 15 
 
 The Act of March 3, 1887, provides that "no appeal or writ of 
 error to the decision of the Circuit Court remanding a cause shall 
 be allowed." ie The act of February 25, 1889, authorizes a writ 
 of error or appeal to the Supreme Court, without reference to the 
 amount involved, in all cases where a final judgment or decree 
 shall be rendered in a Circuit Court of the United States, in 
 which there is a question involving the jurisdiction of the court ; 
 but provides that in cases where the judgment or decree does not 
 exceed the sum of $5,000, the Supreme Court shall not review 
 any question, except such question of jurisdiction. 17 
 
 7 Mansfield, C. & L. M. By. Co. v. 
 Swan, 111 U. S. 379; Continental Insur- 
 ance Co. v. Ehoads, 119 TJ. S. 237 ; Peper 
 v. Fordyce, 119 U. S. 469; Everhart v. 
 Huntsville College, 120 U. S. 223; King 
 Bridge Co. v. Otoe County, 120 U. S. 
 225 ; Chapman ». Barney, 129 U. S. 677 ; 
 Peninsular Iron Co. v. Stone, 121 U. S. 
 631. 
 
 8 Josslyn v. Phillips, 27 Fed. Eep. 481. 
 
 9 Young v. Merchants' Ins. Co., 29 
 Fed. E. 273. 
 
 30 Miller v. Kent, 18 Fed. E. 561 ; Bal- 
 timore & O. E. E. Co. v. Ford, 35 Fed. E. 
 170. 
 
 11 Jackson v. Allen, 132 U. S. 27; La- 
 zensky v. Knights of Honor, 32 Fed. E. 
 417 ; Ferguson v. Eoss, 38 Fed. E. 161. 
 
 12 Clarkhuff v. Wisconsin, I. & N. E. E. 
 Co., 26 Fed. Eep. 465 ; Lacroix v. Lyons, 
 27 Fed. E. 403 ; Rumsey v. Call, 28 Fed. 
 R. 769 ; Carson v. Dunham, 121 U. S. 421 ; 
 M'Donald v. Salem C. F. M. Co., 31 Fed. 
 E. 577 ; Johnson v. Accident Ins. Co. of 
 North America, 35 Fed. E. 374 ; Imperial 
 Eefining Co. v. Wyman, 38 Fed. E. 574. 
 
 13 Beadleston v. Harpending, 32 Fed. E. 
 644 ; Anderson v. Appleton, 32 Fed. E. 
 855; Morris v. Gilmer, 129 U. S. 315. 
 
 14 Carson v. Dunham, 121 U. S. 421, 
 425. 
 
 is Stone v. South Carolina, 117 U. S. 
 430; Burlington, C. E. & N. Ey. Co. v. 
 Dunn, 122 U. S. 513. 
 
 i 6 24 St. at L. ch. 373, p. 552. 
 
 17 25 St. at L. ch. 236, p. 693.
 
 394] WRITS OF ERROR AND APPEALS TO THE SUPREME COURT. 591 
 
 CHAPTER XXX. 
 
 WRITS OF ERROR AND APPEALS. 
 
 § 394. "Writs of Error and Appeals to the Supreme Court of the 
 United States. — A writ of error is the appropriate proceeding for 
 the review of the judgment of a court at law. An appeal is the 
 appropriate proceeding for the review of the decree of a court of 
 equity or admiralty. When the record, is brought before it by a 
 writ of error, the court looks into it to see if any error of law 
 was committed by the inferior court. There can be no reversal 
 upon a writ of error for any error in fact. 1 Upon an appeal the 
 appellate court reviews the case upon the evidence taken in the 
 inferior court, and certified to it. 
 
 To these rules of the English practice, the Federal statutes 
 have made four exceptions. Upon a writ of error, there can be 
 no reversal for error in ruling any plea in abatement, such as the 
 plea of the pendency of another suit, other than a plea to the 
 jurisdiction of the court. 2 The review of judgments and decrees 
 upon the instance side of a Circuit Court when deciding causes 
 of admiralty and maritime jurisdiction, is limited by a recent 
 statute to a determination of questions of law arising upon the 
 record, and to such rulings of the Circuit Court, excepted to at 
 the time, as may be presented by a bill of exceptions, pre- 
 pared as in actions at law. 3 Consequently, no disputed question 
 of fact can be reviewed on such an appeal, provided there was 
 any evidence in support of the finding below. 4 The same rule 
 would seem to apply to appeals from the judgments and decrees 
 of the Territorial courts in cases not tried by a jury. 5 A writ of 
 error from the Supreme Court of the United States will lie to no 
 
 § 394. » Wiscart v. Dauchy, 3 Dall. * The Abbotsford, 98 U. S. 4»0 : Mer- 
 
 321, 327; U. S. v. Goodwin, 7 Cranch, chants' Insurance Co. v. Allen, 121 U. S. 
 
 108, 110. 67. 72 ; Zeckendorf v. Johnson, 123 U. S. 
 
 2 U. S. R. S. § 1011 ; as amended 18 617. 
 St. at L. ch. 80, p. 318; Piquignot v. 6 ]8 g ti &t j^ c h. 80, p. 27 ; Rtringfellow 
 
 Penn. R. R. Co., 16 How. 104; Stephens r. Cain, 99 U. S. 610; Cannon v. Pratt, 
 
 v. Mononpahela Bank, 111 U. S. 197. 9!) U. S. 619; Gray v. Howe, 108 U. S. 
 
 8 18 St. at L. p. 315, ch. 77, § 1. 12.
 
 592 WEITS OF ERROR AND APPEALS: [CHAP. XXX. 
 
 judgment of a Territorial court in a case not tried by a jury. 6 
 The review in the Supreme Court of the United States of a judg- 
 ment of a Territorial court in a case not tried by a jury can only 
 be by an appeal." No judgment or decree of a State court, 
 whether at law or in equity, can be reviewed otherwise than by 
 a writ of error. 8 
 
 The Supreme Court can review by writ of error all fiual judg- 
 ments, and by appeal all final decrees in cases of equity and 
 maritime jurisdiction, of any Circuit Court, or of any District 
 Court acting as a Circuit Court, in civil actions brought there 
 by original process, or removed there from courts of the several 
 States ; and all final judgments of any Circuit Court in civil 
 actions removed there from any District Court by appeal or writ 
 of error, where the matter in dispute, exclusive of costs, exceeds 
 the sum or value of $5,000 ; 9 by appeal, all final decrees of any 
 District Court in prize causes, where the matter in dispute, exclu- 
 sive of costs, exceeds the sum or value of 82,000, or where the 
 district judge certifies that the adjudication involves a question 
 of general importance ; 10 by appeal, all final decrees of any Circuit 
 Court in prize causes depending therein on the 30th day of June, 
 1864, in the same manner and subject to the same conditions 
 as appeals from District Courts in prize causes ; u by appeal, on 
 behalf of the United States, all final judgments of the Court of 
 Claims adverse to the United States ; and by appeal, on behalf of 
 the plaintiff, all judgments of the Court of Claims in any case 
 where the amount in controversy exceeds $3,000, or his claim 
 is forfeited to the United States for fraud ; 12 by writ of error 
 all final judgments, and by appeal all final decrees, of the 
 Supreme Court of the District of Columbia, in any case where 
 the value of the matter in dispute exceeds the sum or value 
 of 85,000, 13 and in any case wherein is involved the validity of 
 any patent or copyright, or in which is drawn in question the 
 validity of a treaty or a statute, or of an authority exercised 
 
 6 18 St. at L. ch. 80, p. 27 ; Stringfellow » U. S. R. S. § 695. 
 v. Cain, 99 U. S. 610; Cannon v. Pratt, 99 " U. S. R. S. § 696. 
 U. S. 619; Gray v. Howe, 108 U. S. 12. 12 U. S. R. S. § 707. 
 
 » 18 St. at L. ch. 80, p. 27; Stringfellow 13 1 Supp. U. S. R. S. 419; 20 St. at 
 
 v. Cain, 99 U.S. 610; Cannon v. Pratt, 99 L. ch. 99, p. 320; 23 St. at L. ch. 355, 
 
 U. S. 619; Gray v. Howe, 108 U. S. 12. p. 443 ; Baltimore & P. R. R. Co. v. Hop- 
 
 8 U. S. R. S. § 709. kins, 130 U. S. 210: District of Columbia 
 
 9 U. S. R. S. §§ 691, 692. v. Gannon, 130 TJ. S. 227.
 
 § 394.] WRITS OF ERROR AXD APPEALS TO THE SUPREME COURT. 593 
 
 under the United States ; 14 by writ of error the final judgments 
 in all cases tried before a jury, and by appeal all other judgments 
 and all decrees of the Supreme Court of any Territory, where 
 the value of the matter in dispute, exclusive of costs, to be ascer- 
 tained by the oath of any party or other competent witness, 
 exceeds $5,000, 15 and in any case wherein is involved the valid- 
 ity of any patent or copyright, or in which is drawn in question 
 the validity of a treaty or a statute of, or an authority exercised 
 under theUnited States ; 16 by writ of error all judgments in any 
 criminal cases where the accused shall have been sentenced to 
 capital punishment, 17 and- all judgments of the Supreme Court of 
 the Territory of Utah, where the accused has been convicted of 
 bigamy or polygamy ; 18 by writ of error all final judgments at 
 law, and by appeal all final decrees in equity, irrespective of the 
 value of the matter in dispute, in any case touching patents or 
 copyrights, 19 in any civil action brought b}^ the United States in 
 a Circuit Court or a District Court acting as a Circuit Court for 
 the enforcement of any revenue law, 20 in any civil action against 
 any officer of the revenue for any act done by him in the 
 performance of his official duty, or for the recovery of any 
 money exacted by, or paid to him which has been paid into the 
 Treasury, 21 in any case in a Circuit Court or a District Court 
 sitting as a Circuit Court brought on account of the deprivation 
 of any right, privilege, or immunity secured by the Constitution 
 of the United States, or of any right or privilege of a citizen 
 of the United States, 22 or founded upon any of the civil rights 
 laws; 23 by writ of error all final judgments, and by appeal 
 
 14 23 St. at L. ch.355, p. 443; Baltimore State court must be against tlie right or 
 & P. It. R. Co. v. Hopkins, 130 U. S. 210; power set up by the party against the 
 Disk of Columbia v. Gannon, 130 U.S. 227. laws of the United States." 
 
 15 U. S. II. S. §§ 702, 1900 ; 23 St. at L. « 25 St. at L. eh. 114, p. 656. 
 
 ch. 355, p. 443. is \g gt. at L. ch. 469, p 254 ; 1 Supp. 
 
 16 23 St. at L. ch. 355, p. 443 ; Smith v. U. S. R. S. p. 108. No writ of error will 
 Adams, 130 U. S. lo7 ; Clayton v. Utah, issue to a judgment where the accused is 
 132 U. S. 636, 638: " It will be observed convicted of the offence of cohabiting 
 that this second section of the statute, with more than one woman. Snow v. 
 while it is based upon the general princi- U. S., 118 U. S. 340; Cannon v. U. S., 118 
 pie which is found in the Act of Congress U. S. 355; Farnsworth v. Montana, 129 
 allowing writs of error from this court to U. S. 104. 
 
 the highest courts of a State, namely, to 19 U. S. R. S. § 
 
 protect parties against the exercise of an *> U. S. R. S. § 608. 
 
 unlawful power on the part of the State 21 U. S. R. S. § 698. 
 
 authorities, does not use the language B U. S. R. S. § 698. 
 
 which is found in that Act, that to give 2S U. S. II. S. §008; 1 Supp. U. S. R. S. 
 this court jurisdiction the decision of the p. 140 ; 18 St. at L ch. 114, p. 335, § 5. 
 
 38
 
 594 WRITS OF ERROR AND APPEALS. [CHAP. XXX. 
 
 all final decrees of any Circuit Courts in which there has been a 
 question of jurisdiction of the court, — but in such cases where 
 the decree or judgment does not exceed the sum of $5,000 the 
 Supreme Court cannot review any question raised upon the 
 record except such question of jurisdiction ; 2i by writ of error, 
 all final judgments and decrees in any suit in the highest court 
 of a State in which a decision in the suit could be had, where 
 has been drawn in question the validity of a treaty or statute of, 
 or an authority exercised under the United States, and the de- 
 cision has been against their validity, or where has been drawn 
 in question the validity of a statute of, or authority exercised 
 under any State, on the ground of their being repugnant to the 
 Constitution, treaties, or laws of the United States, and the deci- 
 sion has been in favor of their validity, or where any title, right, 
 privilege, or immunity is claimed under the Constitution, or any 
 tieaty or statute of, or commission held or authority exercised 
 under the United States, and the decision is against the title, 
 right, privilege, or immunity specially set up or claimed by either 
 party, under such Constitution, treat} r , statute, commission, or 
 authority; 25 by writ of error all final judgments, and by appeal 
 all decrees in equity in civil suits before a Circuit Court held at 
 the time by a justice of the Supreme Court and a Circuit judge 
 or a District judge, or b} r the Circuit judge and a District judge, 
 wherein the judges certify that their opinions were opposed upon 
 an} r question of law which occurred on the trial or hearing of the 
 said suit or proceeding. 26 When any question of law occurs in 
 the hearing or trial of any criminal proceeding before a Circuit 
 Court, upon which the judges are divided in opinion, they may 
 certify their disagreement and the point on which they disagree, 
 to the Supreme Court 27 The Supreme Court must then decide 
 such point, if properly certified, and remit its decision and order 
 therein to such Circuit Court, to be there entered of record and 
 take effect. 28 Appeals in habeas corpus proceedings have been 
 described in a preceding chapter. 29 
 
 § 395. Value of Matter in Dispute. — Where the right to 
 appeal depends on the value of the matter in dispute, such 
 
 2* 25 St. at L. ch. 236, p. 693. See 27 U. S. R. S. § 697. See § 396. 
 § 393. 28 U. S. It. S. § 697. 
 
 ••* U. S. R S. § 709. 29 See § 368. 
 
 26 TJ. S. R. S. § 693. See § 396.
 
 § 395.] VALUE OF MATTER IN DISPUTE. 595 
 
 value must be estimable in money. 1 Consequently, in such 
 cases, where the matter in dispute is the right to personal 
 liberty or the right to the custody of a child, no appeal or writ 
 of error will lie. 2 Appeals in habeas corpus proceedings and 
 the proceedings under them are described and explained in a 
 previous section. 3 The value of the matter in dispute at the 
 time of the entry of the judgment is alone to be considered. 4 
 No interest subsequently accrued, 5 or right claimed at the out- 
 set of the suit but abandoned before the judgment was entered, 
 can be taken into consideration. 6 When the plaintiff has re- 
 covered a verdict in excess of $5,000, he may, by leave of the 
 court, file before judgment a remittitur of part of such verdict, 
 and enter judgment for a sum not exceeding $5,000. 7 In such a 
 case, no writ of error can be had where the jurisdiction of 
 the Supreme Court is dependent upon the matter in dispute. 8 
 After judgment, a plaintiff cannot deprive his adversary of the 
 right to a writ of error by a release of part of such judgment. 9 
 In the case of an appeal from a decree or writ of error to the 
 judgment of an appellate court affirming the judgment of a court 
 below it, where such judgment of affirmance express^ includes 
 interest from a time antecedent to its entry and the interest is 
 part of the claim litigated, the interest is included in the compu- 
 tation of the value of the matter in dispute. 10 If, however, the 
 judgment of affirmance is silent as to interest, interest is not in- 
 cluded in the computation. 11 The probative force of the judg- 
 ment, and its effect as an estoppel in a subsequent suit between 
 the same parties to recover a larger amount, as in the case of a 
 judgment in a suit to collect a coupon, cannot be considered as 
 
 § 395. » Elgin v. Marshall, 106 U.S. 578; » Thompson v. Butler, 95 U. S. 694. 
 
 Lee v. Lee, 8 Pet. 44; Barry v. Mereein, s Thompson v. Butler, 95 U. S. 694; 
 
 6 How. 103; Pratt v. Fitzhugh, 1 Black, Alabama Gold Life Ins. Co. n. Nichols, 
 
 271- 109 U. S. 232 ; First National Bank v. 
 
 2 Lee v. Lee, 8 Pet. 44; Pratt v. Fitz- Redick, 110 U. S. 224. 
 
 hugh, 1 Black, 271 ; Barry v. Mereein, 5 9 New York Elevated Railroad Com- 
 
 How. 103. pany p. Fifth National Bank, 118 U. S. 
 
 3 § 368. 608. 
 
 4 Bank of U. S. p. Daniel, 12 Pet. 32; » Zeckendorf v. Johnson, 123 U. S. 
 Walker v. U. S., 4 Wall. 163. 617 ; The Patapsco, 12 Wall. 451 ; The 
 
 Walker v. U. S., 4 Wall. 163 ; Knapp Bio Grande, 19 Wall. 178. 
 
 v Banks, 2 How. 73 ; W.U.Tel. Co. v. « Railroad Company v. Trook, 100 
 
 Rogers, 93 U. S. 505; Thompson v. But- U. S. 112; District of Columbia v. Gan- 
 
 ler, 95 U. S. 694. non, 130 U. S. 227. 
 
 Tintsman v. National Bank, 100 
 U. S. 6.
 
 590 
 
 WRITS OF ERROR AND APPEALS. 
 
 [CHAP. XXX. 
 
 adding to the value of the matter in dispute, 12 When the 
 object of a suit is to apply property worth more, to the pay- 
 ment of a debt worth less than the jurisdictional amount, the 
 amount of the debt, not the value of the property, is the test of 
 jurisdiction. 13 In a suit to establish the right to an office, the 
 aggregate amount of the salary for the unexpired term claimed 
 by the appealing party is the value of the matter in dispute. 1 * In 
 a suit to recover the possession of leasehold premises, the amount 
 expended by the lessee in the improvement of the premises may be 
 considered in estimating the value of the matter in dispute. 15 In 
 a suit for an injunction, the value of the object sought to be 
 gained by the bill, not the amount of the plaintiff's damages, is 
 the value of the matter in dispute. 16 When a number of plain- 
 tiffs claiming under the same title and having a common interest 
 in the relief sought, unite in a suit, the adverse party having 
 no interest in the apportionment or distribution of the amount 
 recovered among them, their united interests constitute the 
 matter in dispute. 17 When a suit is brought by one for himself 
 and all others jointly interested, the aggregate interest of those 
 who oin with him, not that of the whole class, constitutes the 
 disputed matter. 18 When several persons join in one suit to 
 assert separate and distinct interests, and these interests alone 
 are in dispute, their interests upon appeal are considered sep- 
 arately, and the amount of the interest of each is the limit of 
 the appellate jurisdiction. 19 When the value of the matter in 
 dispute does not appear upon the record, affidavits upon this 
 point may be filed either in the Circuit Court or in the Supreme 
 
 12 Elgin i'. Marshall, 106 U. S. 578, 
 580 ; Bruce v. Manchester & K. R. R. Co., 
 117 U. S. 514. 
 
 is Gibson v. Shufeldt, 122 U. S 27, 29, 
 per Gray, J. ; Peyton v. Robertson, 9 
 Wheat. 527 ; Farmers' Bank of Alexan- 
 dria v. Hooff, 7 Pet. 168 ; Ross v. Prentiss, 
 3 How. 771. 
 
 " U. S. i\ Addison, 22 How. 174; 
 Smith v. Whitney, 116 U. S. 167. 
 
 1 5 . Harris v. Barber, 129 U. S. 366. 
 
 is Miss. & Mo. R. R. Co. v. Ward, 2 
 Black, 485 ; Market Company v. Hoff- 
 man, 101 U. S. 112. 
 
 « Gibson v. Shufeldt, 122 U. S. 27, 30, 
 per Gray, J. ; Estes v. Gunter, 121 U. S. 
 183; Shields v. Thomas, 17 How. 3; 
 
 Market Company v. Hoffman, 101 U. S. 
 112; Davies v. Corbin, 112 U. S. 36; 
 Friend v. Wise, 111 U. S. 797. 
 
 i 8 Bruce v. Manchester & K. R. R. Co., 
 117 U. S. 514, 516. 
 
 is Gibson v. Shufeldt, 122 U. S. 27, 34, 
 per Gray, J. ; Seaver v. Bigelows, 5 Wall. 
 208 ; Russell v. Stansell, 105 U. S. 303 ; 
 Chatfield v. Boyle, 105 U. S. 231 ; Adams' 
 p. Crittenden, 100 U. S. 576; Schwed v. 
 Smith, 106 U. S. 188; F. L. & Tr. Co. v. 
 Waterman, 106 U. S. 265; Hassall v. 
 Wilcox, 115 U. S. 598; Fourth National 
 Bank v. Stout, 113 U. S. 684; Stewart 
 v. Dunham. 115 U. S. 61 ; Paving Co. v. 
 Mulford, 100 U. S. 147 ; Ex parte Phoenix 
 Insurance Co., 117 U. S. 367.
 
 § 396.] CERTIFICATE OF DIVISION OF OPINION. 597 
 
 Court. 20 When filed in the Circuit Court, they must be sent up 
 with the record. 21 
 
 § 396. Certificate of Division of Opinion. — The division of 
 opinion which will warrant the review of a case by the Su- 
 preme Court in civil or criminal cases must be on one or more 
 separate points of law, 1 not questions of fact nor of mixed law 
 and fact, 2 nor resting in the discretion of the court. 3 Nor can the 
 whole case be thus certified to the Supreme Court for decision. 4 
 For example, the Supreme Court will not thus determine 
 whether one patent is an infringement of another, 5 nor whether 
 certain facts constitute fraud. 6 It has been intimated that no 
 question of practice Avill be thus determined. 7 But the right to 
 the continuance of an interlocutory injunction has thus been de- 
 termined ; 8 and although a division of opinion on a motion for 
 a new trial cannot ordinarily be thus certified to the Supreme 
 Court, 9 it may be if the parties file a stipulation that the case 
 stand as if a judgment had been given on the exceptions. 10 The 
 questions as to which the disagreement is certified must have 
 actually arisen, and not be hypothetical. 11 If they are not clearly 
 expressed, the Supreme Court will decline to consider the case 
 on that ground alone. 12 If it appears that a decision of the 
 questions certified will not affect the final result, the Supreme 
 
 20 Wilson v. Blair. 119 U. S. 387; Street * Saunders v. Gould, 4 Pet. 392; U. S. 
 
 v. Ferry, 119 U. S. 385; Gibson v. Shu- v. Bailey, 9 Pet. 267; Harris v. Elliott, 
 
 feldt, 122 U. S. 27. 1.0 Pet. 25; Waterville v. Van Slyke, 116 
 
 2i Wilson r. Blair, 119 U.S. 387; Davie U. S. 699; Jewell v. Knight, 123 U. S. 
 
 v. Heyward, 33 Fed. R. 93. 426 ; U. S. v. Hall, 131 U. S. 50. 
 
 § 396. J Wayman v. Southard, 10 5 Wilson v. Barnum, 8 How. 258 ; 
 
 Wheat. 1 ; Daniels v. Railroad Company, California A. S. P. Co. v. Molitor, 113 
 
 3 Wall. 250; Havemeyer v. Iowa County, U. S. 609; Waterville v. Van Slyke, 116 
 
 3 Wall. 294 ; Williamsport Bank v. Knapp, U. S. 699. 
 
 119 U.S. 357; Jewell v. Knight, 123 U.S. 6 Jewell v. Knight, 123 U. S. 426- 
 
 426 ; Smith v. Craft, 123 U. S. 436. Smith v. Craft, 123 U. S. 436. 
 
 2 Wilson v. Barnum, 8 How. 258; ' Dovereaux v. Marr, 12 Wheat. 212 ; 
 
 Dennistoun v. Stewart, 18 How. 565 ; Bank of U. S. v. Green, Pet. 26; Davis 
 
 Brobst v. Brobst, 4 Wall. 2; Weetli v. v. Braden, 10 Pet. 286; Packer v. Nixon, 
 
 N. E. Mortgage Co., 106 U. S. 605 ; Call- 10 Pot. 408. 
 
 fornia A. S. P. Co. v. Molitor, 113 U. S. 8 u. S. v. Chicago, 7 How. 185. 
 
 609 ; Waterville v. Van Slyke, 116 U. S. » U. S. v. Daniel, 6 Wheat. 542 ; Jones 
 
 699; Jewell v. Knight, 123 U. S. 426; v. Van Zandt, 5 How. 215. 
 
 U. S. v. Hall, 131 U. S. 50; U. S. v. w Grant v. Raymond, 6 Pet. 218, 220. 
 
 Perrin, 131 U. S. 55. n Havemeyer V. Iowa County, 3 Wall. 
 
 8 Wiggins v. Gray, 24 How. 303 ; Da- 294 ; Pelham v. Rose, 9 Wall. 103. 
 
 vis v. Braden, 10 Pet. 286; U. S. v. Dan- » Sadler v. Hoover, 7 How. 646; Per- 
 
 iel, 6 Wheat. 542; U. S. v. Hamilton, kins v. Hart, 11 Wheat. 237. 
 109 U. S. 63.
 
 598 WRITS OF ERROR AND APPEALS. [CHAP. XXX. 
 
 Court will decline to consider them. 13 When it is obvious that 
 the division was pro forma, the Supreme Court may refuse to 
 consider the question raised. 14 
 
 § 397. Right to Appeal or bring Error. — All parties Oil the 
 record who are injuriously affected by a final judgment or de- 
 cree may appeal or sue out a writ of error in a case of which the 
 Supreme Court has jurisdiction. An intervenor has the right of 
 appeal. 1 A receiver may appeal from so much of a decree in 
 the suit wherein he was appointed as injuriously affects him 
 individually. 2 
 
 All parties against whom a joint judgment or joint decree is 
 entered must join in the writ of error or appeal, unless one or 
 more, when asked, refuse so to do, and such request and refusal 
 appears upon the record. 3 There are two reasons for this : that 
 the successful party may be at liberty to proceed in the enforce- 
 ment of his judgment or decree against the parties who do not 
 desire to have it reviewed; and that the appellate tribunal shall 
 not be required to decide a second or third time the same ques- 
 tion on the same record. 4 The formal practice on a writ of error 
 in such a case is for the party who wishes the benefit of the writ 
 to obtain a summons, bringing the party jointly interested with 
 him before the court, and if the latter then refuses to join in the 
 writ of error, to enter an order or judgment of severance, where- 
 by the moving party can sue out the writ alone. 5 Thereupon 
 the party who refuses to join is estopped from taking out a writ 
 of error, and the court below can execute the judgment so far as 
 it can be executed against him, despite a supersedeas obtained 
 by the other. 6 Now, however, such a technical proceeding is 
 no longer necessary ; and when the record shows that one of the 
 parties jointly affected has been notified in writing to appear and 
 join in the appeal or writ of error, and has failed to appear, or 
 
 13 U. S. v. Buzzo, 18 Wall. 125; 414; Owings v. Kincannon, 7 Pet. 399; 
 
 Smith v. Ely, 15 How. 137. Heirs of Wilson v. Life & Fire Insurance 
 
 w Webster v. Cooper, 10 How. 54 ; Co., 12 Pet. 140. 
 
 Nesmith v. Sheldon, 6 How. 41 ; U. S. v. * Masterson v. Herndon, 10 Wall. 416. 
 
 Chicago, 7 How. 185 ; Ex parte Gordon, 5 2 Brooke's Abr. 238, tit. Sommons 
 
 1 Pdack, 503. But see U. S. v. Stone, 14 and Severance ; Todd v. Daniel, 16 Pet. 
 
 Pet. 524. 521 ; Masterson v. Herndon, 10 Wall. 416, 
 
 § 397. * Ex parte Jordan, 94 U. S. 248. 417, 418. 
 
 2 Hinckley «;. Gilman, C. & S. R. R. 6 2 Brooke's Abr. 238, tit. Sommons 
 Co., 94 U. S. 467. and Severance ; Masterson v. Herndon, 
 
 3 Masterson v. Herndon, 10 Wall. 416; 10 Wall. 416. 
 Williams u. Bank of U. S., 11 Wheat.
 
 § 397.] LIGHT TO APPEAL OR BRING ERROR. 599 
 
 appeared and refused to join, the court should on that ground 
 grant an appeal or writ as to his own interest to the party who 
 seeks it. 7 A statement in the petition for the appeal, that the 
 other party jointly affected refuses to join in the appeal, is in- 
 sufficient. 8 
 
 A defendant whose interest is separate from that of the others 
 may appeal or bring error without them. 9 Where judgment in 
 an action of trespass was rendered against one defendant by de- 
 fault, and against the other upon a plea, it was held that the 
 latter could bring a writ of error alone. 10 
 
 Whenever any party to a judgment or decree in a Circuit 
 Court dies before the time allowed for taking an appeal or bring- 
 ing a writ of error has expired, it is not necessary to revive the 
 suit by any formal proceeding. 11 If one of several plaintiffs or 
 defendants dies before or after an appeal is taken, and the cause 
 of action survives to the rest, the survivors have the right to 
 proceed alone, unless the representatives of the deceased apply 
 to join with them. 13 The representative of the deceased party 
 may file in the clerk's office a certified copy of his appointment, 
 and thereupon may enter an appeal or bring writ of error, as the 
 deceased party might have done. 13 Where the party in whose 
 favor such a judgment or decree is taken dies before appeal 
 taken or writ of error brought, the statute provides that notice 
 to his representatives shall be given from the Supreme Court, as 
 provided in case of the death of a party after appeal taken or 
 writ of error brought. 14 The rule of the Supreme Court, to 
 which reference is made, is as follows : " 1. Whenever, pending 
 a writ of error or appeal in this court, either party shall die, the 
 proper representatives in the personalty or realty of the deceased 
 party, according to the nature of the case, may voluntarily come 
 in and be admitted parties to the suit, and thereupon the case 
 shall be heard and determined as in other cases ; and if such 
 representatives shall not voluntarily become parties, then the 
 
 * Masterson v. Herndon, 10 Wall. 416; 1 Supp. U. S. R. S. 177; 13 St. at L. 
 
 O'Dowd v. Russell, 14 Wall. 402. 473. 
 
 8 Masterson v. Herndon, 10 Wall. 416. 12 Moses v. Wooster, 115 U. S. 285; 
 
 9 Forgay v. Conrad, 6 How. 201 ; U. S. R. S. § 956 
 
 Germain v. Mason, 12 Wall. 259 ; Han- 13 Act of March 3, 1875, ch. 137, § 9; 
 
 rick v. Patrick, 119 U. S. 166. 1 Supp. U. vS. R. S. 177 ; 18 St. at L. 473. 
 
 "> Macker v. Thomas, 7 Wheat. 530. 14 Act of March 3. 1875, ch. 137, § 9; 
 
 11 Act of March 3, 1875, ch. 137, § 9; 1 Supp. U. S. R. S. ; 18 St. at L. 473.
 
 600 WRITS OF ERROR AND APPEALS. [CHAP. XXX. 
 
 other party may suggest the death on the record, and thereupon, 
 on motion, obtain an order that unless such representatives shall 
 become parties within the first ten days of the ensuing term, the 
 party moving for such order, if defendant in error, shall be en- 
 titled to have the writ of error or appeal dismissed ; and if the 
 party so moving shall be plaintiff in error, he shall be entitled to 
 open the record, and on hearing have the judgment or decree re- 
 versed, if it be erroneous : provided, however, that a copy of every 
 such order shall be printed in some newspaper of general circula- 
 tion within the State, Territory, or district from which the case 
 is brought, for three successive weeks, at least sixty days before 
 the beginning of the term of the Supreme Court then next en- 
 suing. 2. When the death of a party is suggested, and the 
 representatives of the deceased do not appear by the tenth day 
 of the second term next succeeding the suggestion, and no meas- 
 ures are taken by the opposite party within that time to compel 
 their appearance, the case shall abate. 3. When either party to 
 a suit in a Circuit Court of the United States shall desire to 
 prosecute a writ of error or appeal to the Supreme Court of the 
 United States, from any final judgment or decree, rendered in the 
 Circuit Court, and at the time of suing out such writ of error 
 or appeal the other party to the suit shall be dead and have no 
 proper representative within the jurisdiction of the court which 
 rendered such final judgment or decree, so that the suit cannot 
 be revived in that court, but shall have a proper representative 
 in some State or Territory of the United States, the party de- 
 siring such writ of error or appeal may procure the same, and 
 may have proceedings on such judgment or decree superseded or 
 stayed in the same manner as is now allowed by law in other 
 cases, and shall thereupon proceed with such writ of error or 
 appeal as in other cases. And within thirty days after the com- 
 mencement of the term to which such writ of error or appeal is 
 returnable, plaintiff in error or appellant shall make a suggestion 
 to the court, supported by affidavit, that the said party was dead 
 when the writ of error or appeal was taken or sued out, and had 
 no proper representative within the jurisdiction of the court 
 which rendered said judgment or decree, so that the suit could 
 not be revived in that court, and that said party had a proper 
 representative in some State or Territory of the United States, 
 and stating therein the name and character of such representa-
 
 § 398.] LIMITATION OF APPEALS AND WRITS OF ERROR. 601 
 
 tive, and the State or Territory in which such representative 
 resides ; and, upon such suggestion, he may, on motion, obtain 
 an order that, unless such representative shall make himself a 
 party within the first ten days of the ensuing term of the court, 
 the plaintiff in error or appellant shall be entitled to open the 
 record, and, on hearing, have the judgment or decree reversed, 
 if the same be erroneous : provided, however, that a proper cita- 
 tion reciting the substance of such order shall be served upon 
 such representative, either personally or by being left at his 
 residence, at least sixty days before the beginning of the term 
 of the Supreme Court then next ensuing: and provided, also, 
 that in every such case, if the representative of the deceased 
 party does not appear by the tenth day of the term next suc- 
 ceeding such suggestion, and the measures above provided to 
 compel the appearance of such representative have not been 
 taken within the time as above required, by the opposite party, 
 the case shall abate : and provided, aho, that the said represent- 
 ative may at any time before or after said suggestion come in 
 and be made a party to the suit, and thereupon the case shall 
 proceed, and be heard and determined as in other cases." 15 
 
 A party cannot appeal from a decree which does not injuri- 
 ously affect him ; 16 nor from a decree entered upon his consent. 17 
 A party may appeal from a decree entered pro confesso. 18 The 
 right to appeal or bring error has been held not waived by the 
 enforcement of the judgment or decree, 19 nor by compliance with 
 the same. 20 
 
 § 398. Time -within -which Appeal or "Writ of Error must be 
 taken. — The Revised Statutes provide that an appeal in prize 
 causes must be taken within thirty days after the rendering ot 
 the decree, but the Supreme Court may allow an appeal in such 
 a cause, if it appears that the notice of appeal or of intention to 
 appeal was filed in the office of the clerk of the District Court 
 within such thirty days. 1 
 
 No judgment, decree, or order of a Circuit or District Court, 
 
 15 Supreme Court Rule 15. w TJ. S. v. Dashiel, 8 Wall. C,SS ; Mer- 
 
 16 Crawshay v. Soutter, 6 Wall. 739. riam v. Haas, 8 Wall. 687 ; Embry v. 
 
 17 Pacific Railroad v. Ketehum, 101 Palmer, 107 U. S. 3; Erwin v. Lowrv, 7 
 U. S. 289 ; Crawshay v. Soutter, 6 Wall. How. 172. 
 
 739. 20 O'Hara v. MacConnell, 03 U. S. 150 
 
 '8 O'Hara v MacConnell, 93 U. S. 150; § 398. * U. S. R. S. § 1009. 
 
 Thomson v. Wooster, 114 U. S. 104
 
 602 
 
 WRITS OF ERROR AND APPEALS. 
 
 [CHAP. XXX. 
 
 in any civil action at law or in equity, can be reviewed by the 
 Supreme Court, unless the writ of error is brought or the appeal 
 taken within two years after the entry of such judgment, decree, 
 or order ; but where a party entitled to prosecute a writ of error 
 or take an appeal is an infant, insane, or imprisoned, such writ of 
 error may be prosecuted, or such appeal taken within two 
 years after the judgment, decree, or order, exclusive of the term 
 of such disability. 2 The time does not begin to run till the 
 judgment, decree, or order is actually entered or filed, and when 
 the judge's signature is required, not till it is signed, 3 although 
 it is dated as of a prior day. 4 A decision containing directions 
 for a decree is not considered as a decree. 5 The writ of error is 
 not brought till it is filed in the Supreme Court. 6 So, when it is 
 tested and issued within the two years, but not filed till after- 
 wards, it is brought too late. 7 An appeal is taken when it is 
 allowed, 8 although security is not filed till after the statutory 
 limit. 9 This limitation does not apply to writs of error coram 
 nobis. 10 No writ of error to a judgment of conviction of a crime 
 the punishment of which is death can be sued out or granted, 
 unless a petition therefor is filed with the clerk of the court in 
 which the trial was held during the same term as the trial, or 
 within such time, not exceeding sixty days after the expiration of 
 such term, as the court may for cause allow by order entered of 
 record. 11 The right to appeal from a decree dismissing a cross-bill 
 does not ordinarily exist, nor the time begin to run, until the en- 
 try of a final decree disposing of the whole matter in litigation. 12 
 
 § 399. Writs of Error. — A writ of error issues from the clerk's 
 office of the Supreme Court, or of the Circuit Court. 1 The writ 
 issues in the name of the President of the United States, 2 is tested 
 of the date of issue 3 in the name of the Chief Justice of the United 
 
 2 U. S. R. S. § 1008. 
 
 3 Rubber Co. v. Goodyear, 6 Wall. 
 153; DelValle v. Harrison, 93 U. S. 233 ; 
 Polleys v. Black River Imp. Co., 113 
 U. S. 81 ; Radford v. Folsom, 123 U. S. 
 725. 
 
 4 Rubber Co v, Goodyear, 6 Wall. 
 153. 
 
 5 U. S. v. Gomez, 1 Wall. 600. But 
 see Silsby v. Foote, 20 How. 200: Fair- 
 banks v. Amoskeag Nat. Bk. 32 Fed. R. 
 572. 
 
 6 Brooks v Norris, 11 How. 204. 
 
 7 Brooks v Norris, 11 How. 204; 
 Mussina v. Cavazos, 6 Wall. 355, 360; 
 Scarborough v. Pargoud, 108 U. S. 567. 
 
 8 The Dos Hermanos, 10 Wheat. 306. 
 
 9 The Dos Hermanos, 10 Wheat. 306. 
 10 Strode v. The Stafford Justices, 1 
 
 Brock. 162. See § 379. 
 
 » 25 St. at L. eh. 114, § 5, p. 656. 
 
 M Winters v. Ethell, 132 U. S. 207. 
 
 § 399. » U. S. R. S. § 1004. 
 
 2 Supreme Court Rule 5 
 
 » U. S. R. S. § 912 ; Atherton v. Fowler, 
 91 U. S 143.
 
 § 399.] WRITS OF ERROR. 603 
 
 States, or, when that office is vacant, in the name of the associ- 
 ate justice next in precedence, 4 — that is, with the oldest com- 
 mission, 5 — and bears the seal of the court whose clerk issues 
 it, and is signed by such clerk. 6 The writ is directed to the 
 clerk of the court whose proceedings it is intended to review, 
 and directs such court to send up under its seal to the Supreme 
 C®urt the record and process for inspection. 7 The return day of 
 the writ should be the first day of the next term of the Supreme 
 Court, when final judgment was rendered more than thirty days 
 previously, and the writ of error and citation were issued before 
 that day. 8 Otherwise, the return day should be the third Mon- 
 day of the next term. 9 The writ is a writ of the Supreme Court, 
 although issued from the clerk's office of the Circuit Court. 10 
 
 The Supreme Court maj r , at any time, in its discretion and 
 with or without terms, allow an amendment of a writ of error, 
 when there is a mistake in the teste, or a seal is wanting, or the 
 writ is made returnable on a wrong day, or when the statement 
 of the title or the parties is defective, if such defect can be reme- 
 died by reference to the accompanying record, and in all other 
 particulars of form ; provided the defect has not prejudiced, 
 and the amendment will not injure, the defendant in error. 11 A 
 high authority — Judge Curtis — has said of the statute author- 
 izing such amendments: "It is difficult to see, in reading it, 
 what defect cannot now be amended in the discretion of the 
 court." 12 
 
 A writ of error to a Circuit or District Court need not be al- 
 lowed by any judge. 13 It is the usual practice, however, to file 
 a petition for the writ. 
 
 The writ is served by lodging a copy with the clerk of the 
 court to which it is directed. 14 It must be served before its re- 
 turn day. 15 A citation addressed to the defendants in error, 16 
 and signed by a judge of the court to which the writ is ad- 
 dressed, or any justice of the Supreme Court, 17 must be served 
 upon them at least thirty days before the commencement of the 
 
 * U. S. R. S. § 911. 12 Curt. Jur. U. S. Courts, 87. 
 
 6 U. S. R. S. § 674. w Davidson v. Lanier, 4 Wall. 447. 
 
 6 U. S. R. S. §§ 911, 1004. 14 Davidson v. Lanier, 4 Wall. 447. 
 
 7 See Forms XXII. and XXIII. 15 Wood v. Lide, 4 Cranch, 180; Pick- 
 
 8 Supreme Court Rule 8. ett v. Legerwood, 7 Pet. 144. 
 
 9 Supreme Court Rule 8. 16 Peale v. Phipp9, 8 How. 256; Bigler 
 i° Mussina v. Cavazos, 6 Wall. 355. v. Waller, 12 Wall. 142. 
 
 « U. S. R. S. § 1005. « Sagev. Railroad Co., 90 U. S. 712.
 
 604 WRITS OF ERROR AND APPEALS. [CHAP. XXX. 
 
 next terra, if that is practicable. 18 Otherwise, the case cannot be 
 argued against their objection till at least thirty days after ser- 
 vice of the citation. 19 Service of the citation may be made upon 
 the attorney of the defendants in error in the suit below, 20 even 
 though he has been paid his fee and discharged from all further 
 duty. 21 A failure to serve the citation during the term to which 
 the writ of error is returnable, is a ground for dismissing the case. 22 
 A general appearance in the Supreme Court for a term without 
 moving to dismiss is a waiver of service of the citation, but not a 
 waiver of a motion to dismiss the case upon another ground. 23 
 
 § 400. Security on Writ of Error or Appeal. — The Revised 
 Statutes provide that every judge or justice signing a citation 
 or any writ of error shall, except in cases brought up by the 
 United States or b} ? direction of an}' department of the govern- 
 ment, in which case none is required, take good and sufficient 
 security that the plaintiff in error shall prosecute his writ or 
 appeal to effect, and if he fail to make his plea good shall answer 
 all costs. 1 This provision is merely directory, and an omission to 
 take a bond does not avoid the writ of error; 2 but on a motion 
 to dismiss the case on that ground an opportunity to file a bond 
 will be allowed the plaintiff in error. 3 The judge cannot delegate 
 the approval of the bond to the clerk. 4 The judge may approve 
 the bond out of court. 5 All the appellants or plaintiffs in error 
 need not join in the bond. 6 The bond must, however, be pay- 
 able to the defendants in error or appellees. 7 If the sole paj-ee 
 is a person not a defendant in error or appellee, the appeal will 
 be dismissed. 8 Where the proceeding is in the name of a State 
 at the relation of an individual, the bond may be payable in the 
 alternative to either the State or the relator, and either may 
 enforce it. 9 No security is required upon a writ of error to the 
 
 is U. S. R. S. §§ 997, 999 ; National § 400. * U. S. R. S. § 1000. 
 
 Bank v. Bank of Commerce, 99 U. S. 608. 2 Martin v. Hunter, 1 Wheat. 304 ; 
 
 19 National Bank v. Bank of Commerce Davidson v. Lanier. 4 Wall. 447 , Seymour 
 99 U. S. 608. v. Freer, 5 Wall. 822. 
 
 20 Bacon v. Hart. 1 Black, 38; Bigler 3 Davidson v. Lanier, 4 Wall. 447; 
 v. Waller, 12 Wall. 142. Seymour ». Freer, 5 Wall. 822. 
 
 21 U. S. v. Curry, 6 How. 106. 4 O'Reilly v. Edrington, 96 U. S. 724 ; 
 
 22 Hewitt v. Filbert, 116 U. S. 142; National Bank v. Omaha, 96 U. S. 737. 
 Radford v. Folsom, 123 U. S. 725. 5 Hudgins v. Hemp, 18 How. 530. 
 
 23 U.S. )\Armejo,131U.S.,App.lxxxii., 6 Brockett v. Brockett, 2 How. 238. 
 cited, 123 U. S. 727 ; Pierce v. Cox, 9 Wall. 7 Bigler v. Waller, 12 Wall. 142. 
 786; Buckingham v. McLean, 13 How. 8 Davenport v. Fletcher, 16 How. 142. 
 150; Radford v. Folsom, 123 U. S. 725. 9 Spalding v. People, 2 How. 66.
 
 § 401.] APPEALS. COS 
 
 judgment of conviction of a capital crime in a court of the 
 United States. 10 
 
 § 401. Appeals. — Unlike a writ of error, an appeal must be 
 allowed by a judge who has power to sign a citation. 1 An ap- 
 proval of a bond on appeal is equivalent to the allowance of an 
 appeal. 2 A mandamus will be granted to compel a judge to 
 allow an appeal in a proper case. 3 An appeal may be taken in 
 open court at the term at which the decree was rendered. 4 In 
 such a case an entry of the allowance of the appeal should be 
 made in the minutes. 5 Then, no citation is necessary. 6 
 
 Appeals from the Court of Claims must be allowed by the court 
 if in session ; in vacation, by the chief justice of that court. 7 
 The limitation of time for granting such an appeal ceases to run 
 from the time an application is made for its allowance. 8 Appeals 
 from the Court of Claims are heard upon the following record, and 
 no other: A transcript of the pleadings: the final judgment or 
 decree ; such interlocutory orders, rulings, judgments, and decrees 
 as are necessary to a proper review of the case ; and a finding in 
 the nature of a special verdict by the Court of Claims of the facts 
 established by the evidence, but not the evidence establishing 
 them ; and a separate statement of the conclusions of law upon 
 such facts upon which that court founds its judgment or de- 
 cree. 9 The finding of facts and conclusions of law must be cer- 
 tified to the Supreme Court as part of the record below. 10 Special 
 rules regulate the practice on appeals from orders upon writs of 
 habeas corpus. 11 
 
 Otherwise, appeals are subject to the same rules, regulations, 
 and restrictions as are prescribed in cases of writs of error. 12 
 The entry of the appeal in the clerk's office is analogous to the 
 issue of a writ of error. 13 
 
 10 25 St. at L. cli. 113, § 6, p. 656. « j\ e \\ y „, Lamar, 2 Craneh, 344; 
 
 §401. 1 Barrel v. Transportation Co., Brockett v. Brockett, 2 How. 238. 
 8 Wall. 424; Pierce v. Cox, 9 Wall. 786; ' Order in Reference to Appeals from 
 
 Sage v. Railroad Co., 96 U. S. 712. Court of Claims, Rule •'!. 
 
 - Railroad Co. v. Bradleys, 7 Wall. 8 Order in Reference to Appeals from 
 
 575 ; Sage v. Railroad Co., 96 U. S. 712; Court of Claims, Rule 8. 
 Brandies i>. Cochrane, 105 U. S. 262. 9 Order in reference to Appeals from 
 
 3 U. S. v. Adams, 6 Wall. 101 ; U S. Court of Claims Rule 1. 
 
 v. Gomez, 3 Wall. 752 ; Ex parte Rail- 10 Order in Reference to Appeals from 
 road Co , 95 U. S. 221. Court of Claims, Rule 1. 
 
 4 Reily v. Lamar, 2 Craneh, 344 ; " § 368. 
 Brockett v. Brockett, 2 How. 238. 12 U. S. R. S. § 1012. 
 
 6 Vansant v. Gaslight Co., 99 U. S. 213. 18 Villabolos v. U. S., 6 How. 81.
 
 606 WRITS OF ERROR AND APPEALS. [CHAP. XXX. 
 
 § 402. Supersedeas. — A supersedeas is a stay of proceedings 
 upon a judgment or decree to which a writ of error is issued 
 or from which an appeal is taken. 1 To secure a supersedeas the 
 writ of error and the security required to be given upon the issue 
 of a citation must be lodged in the clerk's office for the use of the 
 defendant in error, within sixty days, Sundays exclusive, after the 
 rendering of the judgment. Security must also be given that 
 the plaintiff in error, if he fail to make his plea good, will an- 
 swer all damages and costs. 2 This latter security, if filed con- 
 currently with the issue of the citation and the lodging of the 
 writ of error in the clerk's office, or at any time within the said 
 sixty days, maybe approved by the justice who signs the citation, 
 and operates as a stay as a matter of right. 3 Otherwise, it can 
 only operate as a stay by the permission of a judge or justice of 
 the Supreme Court, and then only if the writ of error was sued 
 out and served within the sixt}' days. 4 The security upon a su- 
 persedeas where the judgment or decree is for the recovery of 
 money not otherwise secured, must be for the whole amount of 
 the judgment or decree, including just damages for delay and 
 costs and interest on the appeal. 5 In suits where the property in 
 controversy necessarily follows the event of the suit, as in real 
 actions, replevin, and suits in mortgages ; or where the property 
 is in the custody of the marshal under admiralty process, as in 
 case of a capture or seizure ; or where the proceeds thereof, or a 
 bond for the value thereof, is in the custody or control of the 
 court, — indemnity is only required in an amount sufficient to se- 
 cure the sum recovered for the use and detention of the property, 
 and the costs of the suit and just damages for delay and costs 
 and interest on the appeal. 6 Except in case of a gross abuse of 
 discretion, the action of the judge in approving the amount and 
 sufficiency of the sureties to a supersedeas bond will not be 
 reviewed." 
 
 Where an appeal from a final decree in an equity suit, grant- 
 ing or dissolving an injunction, is allowed by a justice or judge 
 
 § 402. 1 U. S. R. S. § 1007. 6 Supreme Court Rule 29. See The 
 
 2 TJ. S. R. S. § 1007. Holladay Case, Hickox v. Elliott, 28 Fed. 
 
 3 U. S. R. S. § 1007 ; Kitchen v. Ran- R. 117. 
 
 dolph,93 U. S. 86. 7 Jerome v. MeCarter, 21 Wall. 17; 
 
 * U. S. R. S. § 1007 ; Kitchen v. Ran- Ex parte French, 100 U. S. 1 ; Martin v. 
 
 dolph,93U. S. 86; Sageu. Central R. R. Hazard Powder Co., 93 U. S. 302. But 
 
 Co. of Iowa, 93 U. S. 412. see Stafford v. Union Bank, 16 How. 135; 
 
 6 Supreme Court Rule 29. 8. c. 17 How. 275.
 
 § 403.] RETURN TO WRIT OF ERROR OR APPEAL. 607 
 
 who took part in the decision of the cause, he may, in his 
 discretion, at the time of such allowance make an order sus- 
 pending or modifying the injunction pending the appeal, upon 
 such terms, as to bond and otherwise, as he may consider proper 
 for the protection of the rights of the opposite party. 6 
 
 A writ of error to a judgment of conviction of a capital crime 
 in a court of the United States operates as a stay of proceedings 
 without the filing of any bond or other security. 9 A special rule 
 regulates stays upon appeal in habeas corpus proceedings. 10 
 
 § 403. Return to Writ of Error or Appeal. — A writ of error 
 should be returned to. the Supreme Court on or before the re- 
 turn day thereof, together with an authenticated transcript of 
 the record, an assignment of errors, a prayer for reversal, and 
 the original citation to the adverse party, all of which should be 
 annexed thereto. 1 If, however, the writ is served before the re- 
 turn day, the Supreme Court will usually allow the writ or the 
 transcript to be filed at any time during the term in which the 
 return day falls. 2 The destruction of the writ without the fault 
 of the plaintiff in error will excuse a return of the original paper, 
 provided a copy of the writ and the transcript and other papers 
 are duly filed. 3 The return-day of an appeal is the day named in 
 the citation. The copy of the record is sufficiently authenticated if 
 there is attached to the same a certificate that the writing thereto 
 attached is a true transcript of the record, signed by the clerk or 
 his deputy, and under the seal of the court. 4 The seal and signa- 
 ture are both requisite. 5 The record must be complete, and con- 
 tain in itself without references aliunde all the papers, exhibits, 
 depositions, and other proceedings which are necessary to the 
 hearing. 6 A copy of the opinion or opinions filed in the case 
 must be annexed to and transmitted with the record. 7 When, in 
 the opinion of the presiding judge in any Circuit Court or Dis- 
 trict Court exercising the jurisdiction of a Circuit Court, it is 
 necessary or proper that original papers, of any kind be inspected 
 in the Supreme Court on appeal or writ of error, such presiding 
 
 8 Rule 93. 3 M uss i na ,.. Cavazos, 6 Wall. 855. 
 
 9 25 St. at L. ch. 113, § 6, p. 656. 4 Garneau v. Dozier, 100 U. S. 7. Su- 
 10 Supreme Court Rule 34; § 368. preme Court Rule 8. 
 
 § 403. i U. S. R. S. § 997 ; Wilson v. * Supreme Court Rule 8. 
 Daniel, 3 Dall. 401. 6 Supreme Court Rule 8. See Hoe v 
 
 2 Mussina v. Cavazos, 6 Wall. 355, Kahler, 27 Fed. R. 145. 
 359 ; Wood v. Lide, 4 Cranch, 180; Pick- 7 Supreme Court Rule 8. 
 ett v. Legerwood, 7 Pet. 144.
 
 608 WRITS OF ERROR AND APPEALS. [CHAP. XXX. 
 
 judge may make such rule or order for the safe-keeping, transport, 
 and return of such papers as he deems proper, and the Supreme 
 Court will receive and consider such original papers in connec- 
 tion with the transcript and proceedings. 8 Whenever any record 
 contains any document, paper, testimony, or other proceeding in 
 a foreign language, the record must also contain a translation 
 thereof made under the authority of the inferior court or ad- 
 mitted to be correct. 9 Otherwise, on the report of the clerk, the 
 Supreme Court will remand the case to the inferior court in order 
 that such a translation may be there supplied and inserted in the 
 record. 10 A recent rule is as follows: — 
 
 " 1. Models, diagrams, and exhibits of material forming part of 
 the evidence taken in the court below, in any case pending in 
 this court, on writ of error or appeal, shall be placed in the cus- 
 tody of the marshal of this court at least one month before the 
 case is heard or submitted. 2. All models, diagrams, and exhib- 
 its of material, placed in the custody of the marshal for the 
 inspection of the court on the hearing of a case, must be taken 
 away by the parties within one month after the case is decided. 
 When this is not done, it shall be the duty of the marshal to 
 notify the counsel in the case, by mail or otherwise, of the 
 requirements of this rule ; and if the articles are not removed 
 within a reasonable time after the notice is given, he shall 
 destroy them, or make such other disposition of them as to him 
 may seem best." n 
 
 When a writ of error or appeal is brought to the Supreme 
 Court from any judgment or decree rendered thirty days before 
 the commencement of the term, it is the duty of the plaintiff in 
 error or appellant to docket the cause and file the record thereof 
 with the clerk within the first six days of the term. 12 If, from 
 a judgment, or decree rendered less than thirty days before 
 the commencement of the term, it is his duty to docket the cause 
 and file the record with the clerk within the first thirty days of 
 the term. 13 In case of appeals or writs of error from California, 
 Oregon, Washington, New Mexico, Utah, Nevada, Arizona, Mon- 
 tana, and Idaho, the period of thirty days is extended to sixty 
 days. 14 
 
 8 Supreme Court Rule 8. V1 Supreme Court Rule 9. 
 
 9 Supreme Court Rule 11. I3 Supreme Court Rule 9. 
 
 10 Supreme Court Rule 11. 14 Supreme Court Rule 9. 
 
 11 Supreme Court Rule 33.
 
 § 403.] RETURN TO WRIT OF ERROR OR APPEAL. 609 
 
 If the plaintiff in error or appellant fails to docket the case 
 and file the record in time, the defendant in error or appel- 
 lee may have the case docketed and dismissed upon produeing a 
 certificate from the clerk of the court wherein the judgment or 
 decree was rendered, stating the cause and certifying that such 
 writ of error or appeal was duly sued out and allowed. 15 After 
 such dismissal, the plaintiff in error or appellant can only by spe- 
 cial leave of the court docket the case and file the record. 16 
 
 The following rule regulated appeals under the last clause of 
 section 5 of March 3, 1875, which clause was repealed by the 
 Act of March 3, 1887. - Whether it applies to writs of error 
 and appeals under the Act of February 25, 1889, 17 has not been 
 decided. 18 " Rule 32. — 1. Writs of error and citations under 
 section 5 of the act of March 3, 1875, ' to determine the juris- 
 diction of the Circuit Courts of the United States and to 
 regulate the removal of causes from the State courts and for 
 other purposes,' for the review of orders of the Circuit Courts 
 dismissing suits or remanding suits to a State court, must be 
 made returnable within thirty days after date, and be served 
 before the return day. 2. In all cases where writ of error or 
 appeal is brought to this court under the provisions of that 
 act, it shall be the duty of the plaintiff in error or the appellant 
 to docket the case and file the record in this court within thirty- 
 six days after the date of the writ of error, or the taking of 
 the appeal, if there shall be a term of the court pending at that 
 time, and if not, then during the first six days of the next term. 
 If default be made in this particular, proceedings to docket and 
 dismiss may be had as in other cases. 3. All such cases will be 
 advanced on motion. The motion may be made ex parte. If 
 granted, the party on whose motion the case shall have been 
 advanced may have the case submitted on printed briefs, on 
 serving, with a copy of his brief, on the adverse party, a notice 
 of intention to submit, such as is required by rule 6 to be given 
 upon motions to dismiss writs of error and appeals. 4. As soon 
 as such a case is docketed and advanced, the record shall be 
 printed, unless the parties stipulate to the contrary and file their 
 stipulations with the Clerk. 5. In all cases where a period of 
 
 15 Supreme Court Rule 9. M See Burlington, C. R. & N. Ry. u, 
 
 v > Supreme Court Rule 9. Dunn, 121 U. S. 182. 
 
 » 25 St. at L.ch. 23G, p. 093. See § 393. 
 
 39
 
 610 WRITS OF ERKOR AND APPEALS. [CHAP. XXX. 
 
 thirty days is included in the time fixed by this rule, it shall 
 be extended to sixty days in writs of error and appeals from 
 California, Oregon, or Nevada." 
 
 The plaintiff in error or appellant must on docketing a cause 
 and filing the record enter into an undertaking to the clerk, 
 with surety to his satisfaction, for the payment of his fees, 
 or otherwise satisfy him in that behalf. 19 The defendant in 
 error or appellee may, if he chooses, docket the cause and file 
 the record. Upon the filing of a transcript of the record the 
 appearance of the counsel for the party docketing the cause 
 should be entered. 20 
 
 A motion to dismiss a writ of error because no assignment of 
 errors is attached to the return will be denied. 21 If the tran- 
 script of the record is defective, the remedy is a certiorari for a 
 diminution of the record. 22 A motion for such a writ should be 
 made at the first term of the entry of the cause, unless upon 
 special cause shown an application at a later term is permitted. 23 
 Pending such a writ, the hearing of the cause is usually ad- 
 journed. 24 
 
 A writ of error from a judgment of conviction of a capital crime 
 in a court of the United States does not require any security for 
 the prosecution of the same, or for costs. 25 Upon the allowance of 
 such a writ, it is the duty of the clerk of the court to which the 
 writ is directed to forthwith transmit to the clerk of the Supreme 
 Court a transcript of the record, which the clerk of the Supreme 
 Court must receive and docket. 26 Such a writ may be filed and 
 docketed at any time in a term held prior to the term named in 
 the citation, as well as at the term so named. 27 All such writs 
 must be advanced to a speedy hearing at the motion of either 
 party. 28 
 
 § 404. Review of Judgments and Decrees of District Courts by 
 Circuit Courts. — Final judgments and decrees of a District Court 
 in civil causes, except in prize cases, where the matter in dispute 
 exclusive of costs exceeds the sum or value of fifty dollars, may 
 be re-examined by the Circuit Court held in such district by 
 
 19 Supreme Court Rule 10. 23 Supreme Court Rule 14. 
 
 20 Supreme Court Rule 9. u Morgan v. Curtenius, 19 How. 8. 
 2i School District of Ackley v. Hall, * 25 St. at L. ch. 113, § 6, p. 656. 
 
 106 U. S. 428 ; Gumbel v. Pitkin, 113 26 2 5 St. at L. ch. 113, § 6, p. 656. 
 
 U. S. 545. 27 25 St. at L. ch. 113. § 6, p. 656. 
 
 22 Supreme Court Rule 14. » 25 St. at L. ch. 113, § 6, p. 656.
 
 § 404.] REVIEW OF JUDGMENTS AND DECREES. 611 
 
 writ of error or appeal, as the case may be. 1 It seems that an 
 appeal in admiralty or equity will only lie to the next term of 
 the Circuit Court to be held in that district. 2 No judgment, 
 decree, or order of a District Court can be reviewed by a Cir- 
 cuit Court on writ of error or appeal, unless the writ of error 
 is sued out or the appeal taken within one year after the entry 
 of such judgment, decree, or order ; but where a party entitled 
 to prosecute a writ of error or take an appeal is an infant, 
 or non compos mentis, or imprisoned, such writ of error may be 
 taken within one year after the entry of the judgment, decree, or 
 order, exclusive of the term of such disability. 3 In case of an 
 appeal, copies of the proofs and of such entries and papers, on file 
 as may be necessary on the hearing of the appeal, may be certified 
 up to the appellate court. 4 The citation on a writ of error issued 
 by a Circuit Court to a District Court must be signed by the Dis- 
 trict Judge or the Circuit Judge, or any justice of the Supreme 
 Court. 5 A Circuit Court may affirm, modify, or reverse any 
 judgment, decree, or order of a District Court brought before it 
 for review, or may direct such judgment, decree, or order to be 
 rendered, or such further proceedings to be had as the justice of 
 the case may require. 6 
 
 The Circuit Court for each judicial district can re-examine by 
 writ of error all criminal cases tried before the District Court, 
 where the sentence is imprisonment, or fine and imprisonment, or 
 a fine in excess of three hundred dollars. 7 In such a case the de- 
 fendant may except to the opinion of the court, and is entitled to 
 have a bill of exceptions settled, signed, and allowed by the trial 
 judge, and made a part of the record. 8 Such writ of error is al- 
 lowed upon petition within one year next after the end of the term 
 at which the sentence was pronounced, when the Circuit Judge or 
 Justice deems the questions of sufficient importance and difficulty 
 to warrant the issue of the writ. 9 He may also order that the writ 
 operate as a stay of the sentence. 10 When the writ is allowed, a 
 
 § 404. i U. S. R. S. §§ 631, 632. « U. S. R. S. § 636. 
 
 2 U. S. R. S. § 631; U. S. v. The 7 Act of March 3, 1879, ch. 176, §2; 
 
 Glamorgan, 2 Curt. 236 ; The Hollen, 1 Supp. U. S. R. S. p. 452 ; 20 St. at L. 
 
 1 Mason, 431; Drake v. The Oriental, 354. 
 
 9 Chic. L. N. 321 ; Gloucester Ins. Co. v. 8 Act of March 3, 1879, ch. 176, § 2 ; 
 
 Younger, 2 Curt. 322. 20 St. at L. 354. 
 
 8 U. S. R. S. § 635. o Act of March 3, 1879, ch. 176, § 2 ; 
 
 * U. S. R. S. 632. 1 Supp. U. S. R. S. p. 452 ; 20 St. at L. 354. 
 
 6 U. S. R. S. § 998. io Act of March 3, 1879, ch. 176, § 2 ;
 
 G12 WRITS OF EREOB AND APPEALS. [CHAP. XXX. 
 
 bond must be given that the plaintiff in error will abide the 
 judgment of the Circuit Court thereon. 11 If the writ is allowed 
 to operate as a stay, bail may also be taken for the appearance of 
 the plaintiff in error at the next regular term of the Circuit Court 
 for the district, and that he will not depart without leave of the 
 court. 12 Such writ of error is returnable to the next regular term 
 of the Circuit Court for the district, and must be served on the 
 district attorney of the United States for such district. 13 In case 
 of an affirmance of the judgment of the District Court, the Cir- 
 cuit Court must proceed to pronounce final sentence and to award 
 execution thereon. 14 If the judgment is reversed, the Circuit 
 Court may proceed with the trial de novo, or remand the case 
 to the District Court for further proceedings. 15 
 
 Otherwise, proceedings upon writs of error from Circuit to 
 District Courts are usually substantially similar to those upon 
 writs of error from the Supreme Court to Circuit Courts. 16 
 
 § 405. Writs of Error from Supreme Court to State Courts. — 
 The Revised Statutes provide that "a final judgment or decree 
 in any suit in the highest court of a State, in which a decision 
 in the suit could be had, where is drawn in question the validity 
 of a statute of, or an authority exercised under, the United 
 States, and the decision is against their validity, or where is 
 drawn in question the validity of a statute of, or authority 
 exercised under, any State, on the ground of their being repug- 
 nant to the Constitution, treaties or laws of the United States, 
 and the decision is in favor of their validity ; or where any 
 title, right, privilege, or immunity is claimed under the Con- 
 stitution, or any treaty, or statute of, or commission held or 
 authority exercised under, the United States, and the decision 
 is against the title, right, privilege, or immunity specially set up 
 or claimed by either party, under such Constitution, treaty, stat- 
 ute, commission, or authority, may be re-examined and reversed 
 or affirmed in the Supreme Court upon a writ of error. The 
 
 1 Supp. U. S. R. S. p. 452; 20 St. at L. 1 Supp. U. S. R. S. p. 452; 20 St. at L 
 
 354. 354. 
 
 " Act of March 3, 1879, ch. 176, § 2; M Act of March 3, 1879, ch. 176, § 3 
 
 1 Supp. U. S. R. S. p. 452 ; 20 St. at L. 1 Supp. U. S. R. S. p. 452; 20 St. at L 
 
 354. 354. 
 
 i 2 Act. of March 3, 1879, ch. 176, § 3; t5 Act of March 3, 1879. ch. 176, § 3 
 
 1 Supp. U. S. R. S. p. 452 ; 20 St. at L. 1 Supp. U. S. R. S. p. 452 ; 20 St. at L. 
 
 354. 354. 
 
 13 Act of March 3, 1879, ch. 176, § 3 ; i 6 See U. S. R. S., §§ 997, 998, 1000.
 
 § 405.] WRITS OF ERROR FROM SUPREME TO STATE COURTS. G13 
 
 writ shall have the same effect as if the judgment or decree 
 complained of had been rendered or passed in a court of the 
 United States; and the proceeding upon the reversal shall be 
 the same, except that the Supreme Court ma}', at their discretion, 
 proceed to a final decision of the case, and award execution, or re- 
 mand the same to the court from which it was so removed. The 
 Supreme Court may re-affirm, reverse, modify, or affirm the judg- 
 ment or decree of such State court, and may, at their discretion, 
 award execution, or remand the same to the court from which 
 it was removed by the writ." * " When a writ of error is issued 
 for the revision of the judgment of a State court, in any criminal 
 proceeding where is drawn in question the validity of a statute of, 
 or an authority exercised under, the United States, or where any 
 title, right, privilege, or immunity is claimed under the Constitu- 
 tion, or any statute of, or commission held or authority exercised 
 under, the United States, the defendant, if charged with an of- 
 fense that is bailable by the laws of such State, shall not be re- 
 leased from custody until a final judgment upon such writ, or until 
 a bond, with sufficient sureties, in a reasonable sum, as ordered 
 and approved by the State court is given ; and if the offense is 
 not so bailable, until a final judgment upon the writ of error." 2 
 " Cases on writ of error to revise the judgment of a State court 
 in any criminal case, shall have precedence, on the docket of 
 the Supreme Court, of all cases to which the Government of the 
 United States is not a party, excepting only such cases as the 
 court, in its discretion, may decide to be of public importance." 3 
 The jurisdiction of the Supreme Court to review judgments and 
 decrees of State courts, although at first bitterly contested, has 
 been held to be constitutional. 4 
 
 The writ of error is not allowed as a matter of right. 5 The 
 practice is to submit the record of the State court to a justice 
 of the Supreme Court, whose duty it then is to ascertain upon 
 examination whether the case upon the face of the record will 
 justify the allowance of the writ. 6 He may refer the application 
 to the whole court for decision as to the propriety of the issue 
 of the writ. 7 The writ will be denied if there is no Federal 
 
 § 405. ' U. S. R. S. § 709. 5 Twitchell v. Commonwealth, 7 Wall. 
 
 2 U. S. R. S. § 1017. 321; Spies v. Illinois, 123 U. S. 131, 143, 
 
 3 U. S. R. S. § 710. 6 Twitchell v. Commonwealth, 7 Wall. 
 * Martin v. Hunter, 1 Wheat. 304; 321 ; Spies v. Illinois, 123 U. S. 131, 143. 
 
 Cohens v. Virginia, 6 Wheat. 204. 7 Twitchell v. Commonwealth, 7 Wal
 
 614 WRITS OF ERROR AND APPEALS. [CHAP. XXX. 
 
 question involved, or if the decision complained of was, as 
 regards the Federal question, so plainly right as not to require 
 argument. 8 The application for a writ of error, if made to a 
 single justice, is usually ex parte. When made to the full court, 
 usually both sides are heard. 9 
 
 A judgment which orders a new trial 10 or any further pro- 
 ceedings 11 cannot be thus reviewed. A judgment uncondition- 
 ally dismissing a complaint, when nothing more is requisite to 
 complete the dismissal, may thus be reviewed. 12 What con- 
 stitutes a final decree has been considered in the chapter on 
 decrees. 13 The term " suit," as used in this statute, applies to 
 any proceeding in a court of justice in which a person pursues the 
 remedy which the law affords him. 14 It includes an application 
 for a writ of mandamus, 15 prohibition, 16 or habeas corpus. 17 
 
 A writ of error may be issued by the Supreme Court of the 
 United States to a judgment of an inferior State court which, 
 by the laws of the State, cannot be reviewed in the highest State 
 court. 18 When, however, the plaintiff in error has a right to a 
 review of the judgment in another court of the State, no writ of 
 error can be obtained till after such review has been had. 19 The 
 writ should be directed to the court in which the final judgment 
 was rendered, by whose process it is to be executed, and where 
 the record remains, although a higher court has considered the 
 case upon appeal or writ of error, and sent down a remittitur or 
 rescript accordingly. 20 In the latter case, the writ may be ad- 
 dressed to the highest court, and seek through its instrumentality 
 to obtain the record from the inferior court having it in keeping; 21 
 
 lace, 321 ; Spies v. Illinois, 123 U S. 131, * 5 Hartman v. Greenhow, 102 U. S. 
 
 143. 672. 
 
 8 Spies v. Illinois, 123 U. S. 131, 166 ; 16 Weston v. Charleston, 2 Pet. 449. 
 Brooks v. Missouri, 124 U. S. 394. 1: Kurtz v. Moffitt, 115 U. S. 487. 
 
 9 Spies v. Illinois, 123 U. S. 131. 1S Downham v. Alexandria, 9 Wall. 
 
 10 Houston v. Moore, 3 Wheat. 433 ; 659 ; Gregory v. McVeigh, 23 Wall. 294 ; 
 Parcels v. Johnson, 20 Wall. 653; Ran- Miller v. Joseph, 17 Wall. 655. 
 
 kin v. State, 11 Wall. 380. 19 Downham v Alexandria, 9 Wall. 
 
 11 McComb v. Commissioners of Knox 659 ; Miller v. Joseph, 17 Wall. 655 ; 
 Countv, 91 U. S. 1 ; Bostwick ». Brinker- Gregory v. McVeigh, 2o Wall 294. 
 hoff, i06 U. S. 3; Gibbons v. Ogden, 6 *> Gelston v. Hoyt, 3 Wheat. 246; 
 Wheat. 448. Kanouse v. Martin, 15 How. 198 ; M'Guire 
 
 12 Commissioners of Tippecanoe Coun- v. Commonwealth, 3 Wall. 382; Polleys 
 ty v. Lucas, 93 U. S. 108. v. Black River Imp. Co., 113 D. S. 81. 
 
 13 See § 318. 21 Atherton v. Fowler, 91 U. S. 143, 
 " Weston v. Charleston. 2 Pet. 449; 147. 
 
 Aldrich v. Aetna Co., 8 Wall. 491 .
 
 § 405.] WRITS OF ERROR FROM SUPREME TO STATE COURTS. 615 
 
 but it is the safer practice to address the writ to the court which 
 has the record. 22 
 
 The writ of error to a State court must, like the writ to a 
 Circuit Court, be accompanied by a citation and a bond. 23 The 
 citation must be signed and the bond approved by the chief jus- 
 tice, judge, or chancellor of the court to which the writ is ad- 
 dressed, or by a justice of the Supreme Court of the United 
 States. 24 The defendant in error must have at least thirty days' 
 notice before the hearing of the cause. 25 
 
 When it is desired to secure the right to review the decision 
 of a State court in the Supreme Court of the United States, it 
 is the safer practice to make it appear distinctly on the record, 
 by a statement either in the pleadings or as the ground of an 
 objection to the admission of evidence, or in support of an 
 offer of evidence or a request to charge, that a Federal ques- 
 tion is involved. 26 This is not, however, indispensable, if the 
 Supreme Court can see by an examination of the record that 
 the Federal question was raised and decided adversely to the 
 plaintiff in error. 27 The opinion of the State court, if properly 
 authenticated, may be examined to see what questions were 
 decided. 28 A certificate of the presiding justice of that court 
 may also be examined for that purpose. 29 But neither of these 
 is conclusive. 30 When it appears that the decision below was 
 adverse to the plaintiff in error upon two independent grounds, 
 one of which is not a Federal question, the Supreme Court 
 will affirm the judgment. 31 When the Supreme Court is of 
 the opinion that the Federal question was erroneously decided 
 it will still affirm the judgment, if it appears that on an- 
 other ground, even if such ground were not considered by the 
 
 22 Atherton v. Fowler, 91 U. S. 143, 477 ; Adams County v. Burlington & Mo. 
 147. R. R. Co., 112 U. S. 123, 129 ; Philadelphia 
 
 23 U. S. R. S. §§ 999, 1000. Fire Association v. New York, 119 U. S. 
 
 24 U. S. R. S. §§ 999, 1000. 110,116. 
 
 85 U. S. R. S. § 999. 29 Murdock v. Memphis, 20 Wall. 590, 
 
 26 Curtis on Jurisdiction of U. S. Courts, 63.3. 
 
 37-39. 30 Adams County v. B & Mo. R. R. 
 
 27 Furman v. Nichol, 8 Wall. 44; Co., 112 U. S. 123,129; Cross v. U. S. 
 Crowell v. Randell, 10 Pet. 368; Arm- Mortgage Co., 108 U. S. 177 
 
 strong v. Treasurer of Athens County, 31 Murdock v. Memphis, 20 Wall. 590 ; 
 
 16 Pet. 281 ; Beer Co. v. Massachusetts, Adams County v. B. & M. R. R Co , 
 
 »7 U. S. 25. 112 U. S. 123; De Saussure v. Gaillard, 
 
 *8 Murdock v. Memphis, 20 Wall. 590; 127 U. S. 216. 
 Gross v. U. S. Mortgage Co., 108 U. S.
 
 G16 WRITS OF ERROR AND APPEALS. [CHAP. XXX. 
 
 State court, the decision was correct. 32 The amount of the 
 matter in dispute in the State court is immaterial to the right of 
 review by the Supreme Court of the United States. 33 Otherwise, 
 writs of error to State courts and the practice and proceedings 
 under them are substantially similar to writs of error to Circuit 
 Courts of the United States, and the practice and proceedings 
 thereunder. 34 
 
 § 406. Motions to Dismiss Appeals or "Writs of Error. — A mo- 
 tion to dismiss a writ of error or appeal upon the ground of want 
 of jurisdiction or otherwise maybe made at anytime, even before 
 the term to which the return should regularly be made. 1 With 
 the motion to dismiss may be united a motion to affirm, on the 
 ground that although the record may show that the Supreme 
 Court has jurisdiction it is manifest that the writ or appeal was 
 taken for delay only, or that the question on which the jurisdic- 
 tion depends is so frivolous as not to need further argument. 2 
 Such a motion will not be granted unless there is a colorable 
 ground for the motion to dismiss, 3 except in a case where the 
 appeal is clearly frivolous. 4 It seems that such a motion will 
 not be granted if united with a motion to dismiss for a defect in 
 the bond. 5 The motion to affirm may be united with a motion to 
 dismiss for a defect in the form of a writ of error. 6 The motion, 
 like all other motions in the Supreme Court, must be reduced to 
 writing and contain a brief statement of the facts and objects of 
 the motion. 7 The motion day is Monday throughout the term. 8 
 No motion to dismiss, except on special assignment by the court, 
 shall be heard, unless previous notice has been given to the 
 adverse party, or his counsel or attorney. 9 The party moving 
 to dismiss must serve notice of the motion, with a copy of his 
 brief or argument, on the counsel for his opponent in the Supreme 
 
 82 Murdock v. City of Memphis, 20 106 U. S. 428 ; Hinckley v. Morton, 103 
 
 Wall. 500, 636. U. S. 764; Davies v. Corbin, 113 U. S. 
 
 ®» Buel v. Van Ness, 8 Wheat. 312. 687 ; Walsington v. Nevin, 128 U. S. 578; 
 
 84 U S. R. S. § 1003. New Orleans v. Construction Co., 129 
 
 § 406. i Ex parte Russell, 13 Wall. 664 ; U. S. 223 ; The Alaska, 130 U. S. 201. 
 
 Clark v. Hancock, 94 U. S. 493. * Chanute City v. Trader, 132 U. S. 
 
 2 Supreme Court Rule 6; Whitney v. 210; The S. C. Tryon, 105 U. S. 267; 
 
 Cook. 09 U. S. 607 ; Hinckley v. Morton, Swope v. Leffingwell, 105 U. S. 3. 
 
 103 U. S. 764 ; Micas v. Williams, 104 5 Gay v. Parpart, 101 U. S. 391. 
 
 U. S. 556; Swope v. Leffingwell, 105 6 Evans v. Brown, 109 U. S. 180. 
 
 U. S. 3 ; Chanute City v. Trader, 132 7 Supreme Court Rule 6. 
 
 U. S. 210. 8 Supreme Court Rule 6. 
 
 8 School District of Ackley v. Hall, 9 Supreme Court Rule 6.
 
 § 407.] PRINTING THE RECORD. 617 
 
 Court at least three weeks before the time fixed for submitting 
 the motion, in all cases except where such counsel resides west 
 of the Rocky Mountains, when the notice must be at least thirty- 
 days. 10 Affidavits of the deposit in the mail of the notice and 
 brief properly addressed to the counsel to be served, duly post- 
 paid, in time to reach him by due course of mail, three weeks or 
 thirty days, as the case may be, before the time fixed by the 
 notice, is prima facie evidence of service on counsel who reside 
 without the District of Columbia. 11 Further time may, how- 
 ever, be given either party by the court. 12 The motion, if not a 
 motion to docket and dismiss for failure to file the record, must, 
 in the first instance, be submitted on printed briefs and argu- 
 ments. 13 If the court requires further argument on the subject, 
 it Will be ordered in connection with the argument of the case 
 on the merits. 14 The motion to affirm, if made before the record 
 is printed, will rarely be granted unless the motion papers are 
 very full and clearly show the want of jurisdiction. 15 When the 
 plaintiff and defendant in error, or the appellant and appellee, in 
 vacation file a stipulation that the case be dismissed, signed by 
 their attorneys, and specifying the terms as to costs, and pay the 
 clerk any fees that may be due him, it is the clerk's duty to enter 
 the case as dismissed, and to give either party who asks it a copy 
 of the agreement filed. 16 No mandate or other process can issue 
 without an order of the court. 17 
 
 § 407. Printing the Record. — The record must be printed for 
 the use of the court and counsel. The following rule regulates 
 printing the record : — 
 
 " 1. In all cases the plaintiff in error or appellant, on docketing 
 a case and filing the record, shall enter into an undertaking to 
 the clerk, with surety to his satisfaction, for the payment of his 
 fees, or otherwise satisfy him in that behalf. 
 
 " 2. The clerk shall cause an estimate to be made of the cost 
 of printing the record, and of his fee for preparing it for the 
 printer and supervising the printing, and shall notify to the party 
 docketing the case the amount of the estimate. If he shall not 
 pay it within a reasonable time, the clerk shall notify the adverse 
 
 10 Supreme Court Rule 6. 15 Crane Iron Co. v. Hoagland, 108 
 
 11 Supreme Court Rule 6. U. S. 5. 
 
 12 Supreme Court Rule 6. 16 Supreme Court Rule 28. 
 18 Supreme Court Rule 6. 17 Supreme Court Rule 28. 
 14 Supreme Court Rule 6.
 
 618 WRITS OF ERROR AND APPEALS. [CHAP. XXX. 
 
 party, and he may pay it. If neither party shall pay it, and for 
 want of such payment the record shall not have been printed 
 when a case is reached in the regular call of the docket, after 
 March 1, 1884, the case shall be dismissed. 
 
 " 3. Upon payment b}* either party of the amount estimated 
 by the clerk, twenty-five copies of the record shall be printed, 
 under his supervision, for the use of the court and of counsel. 
 
 "4. In cases of appellate jurisdiction the original transcript on 
 file shall be taken by the clerk to the printer. But the clerk shall 
 cause copies to be made for the printer of such original papers, 
 sent up under Rule 8, section 4, as are necessary to be printed ; 
 and of the whole record in cases of original jurisdiction. 
 
 " 5. The clerk shall supervise the printing, and see that 
 the priuted copy is properly indexed. He shall distribute the 
 printed copies to the justices and the reporter, from time to 
 time, as required, and a copy to the counsel for the respective 
 parties. 
 
 " 6. If the actual cost of printing the record, together with 
 the fee of the clerk, shall be less than the amount estimated and 
 paid, the amount of the difference shall be refunded by the clerk 
 to the party paying it. If the actual cost and clerk's fee shall 
 exceed the estimate, the amount of the excess shall be paid to 
 the clerk before the delivery of a printed copy to either party or 
 his counsel. 
 
 " 7. In case of reversal, affirmance, or dismissal, with costs, 
 the amount of the cost of printing the record and of the clerk's 
 fee shall be taxed against the party against whom costs are 
 given, and shall be inserted in the body of the mandate or other 
 proper process. 
 
 " 9. The plaintiff in error or appellant may, within ninety days 
 after filing the record in this court, file with the clerk a statement 
 of the errors on which he intends to rely, and of the parts of the 
 record which he thinks necessary for the consideration thereof, 
 and forthwith serve on the adverse party a copy of such state- 
 ment. The adverse party, within ninety days thereafter, may 
 designate in writing, filed with the clerk, additional parts of the 
 record which he thinks material ; and, if he shall not do so, he 
 shall be held to have consented to a hearing on the parts desig- 
 nated by the plaintiff in error or appellant. If parts of the 

 
 § 408.] ARGUMENT OF APPEALS AND WPJTS OF ERROR. 619 
 
 record shall be so designated by one or both of the parties, the 
 clerk shall print those parts only ; and the court will consider 
 nothing but those parts of the record, and the errors so stated. 
 If at the hearing it shall appear that any material part of the 
 record has not been printed the writ of error or appeal may be 
 dismissed, or such other order made as the circumstances may 
 appear to the court to require. If the defendant in error or 
 appellee shall have caused unnecessary parts of the record to 
 be printed, such order as to costs may be made as the court shall 
 think proper." 1 
 
 All briefs and records for the use of the court must be printed 
 in such form and size that they can be conveniently cut and 
 bound so as to make an ordinary octavo volume. 2 
 
 § 408. Argument of Appeals and Writs of Error in the Supreme 
 Court. — All cases may, by consent of counsel, be submitted on 
 printed arguments, within the first ninety days of the term, 
 without regard to the number of the case on the docket, and ap- 
 peals from the Court of Claims may be thus submitted within thirty 
 days after they are docketed, but not in the midst of any term 
 after the first of April. 1 In each case of such submission twenty- 
 five copies of the arguments, signed by attorneys or counsellors 
 of the Supreme Court, must first be filed. 2 No case can be sub- 
 mitted or taken up for argument within three days before the 
 day fixed for an adjournment. 3 Ten cases only, including the 
 one under argument, will be called each day. 4 
 
 Writs of error to revise the judgments of State courts ii* 
 criminal cases take precedence in the calendar, unless the Su- 
 preme Court otherwise directs. 5 Writs of error to judgments of 
 conviction of capital crimes in the courts of the United States 
 must be advanced to a speedy hearing on motion of either party. 6 
 Other criminal eases may be advanced by leave of the court on 
 the motion of either party. 7 Cases once adjudicated by the 
 Supreme Court upon the merits, and again brought up by writ 
 of error or appeal, may be advanced by leave of the court on 
 motion of either party. 8 Revenue cases and other cases in which 
 
 § 407. > Supreme Court Rule 10. a Supreme Court Rule 27. 
 
 2 Supreme Court Rule 31. < Supreme Court Rule 26. 
 
 § 40*. ' Supreme Court Rule 20, as 5 U. S. R. S. § 710. 
 
 amended 123 U. S. 759. o 2 5 St. at L. ch. 113, § 6, p. 656. 
 
 2 Supreme Court Rule 20, as amended " Supreme Court Rule 26. 
 
 123 U. S. 759. s Supreme Court Rule 26.
 
 620 WRITS OF ERROR AND APPEALS. [CHAP. XXX. 
 
 the United States are concerned, which also involve or affect some 
 matter of general public interest, may, by leave of the court, 
 be advanced on motion of the Attorney-General. 9 The court 
 may advance any other cause under special and peculiar circum- 
 stances. 10 Two or more cases, involving the same question, may 
 be heard together by leave of the court. 11 All motions to ad- 
 vance causes must be printed, and contain a brief statement of 
 the matter involved, with the reasons for the application. 12 
 
 No stipulation to pass a cause without placing it at the foot 
 of the docket will be recognized as binding upon the court. 13 A 
 cause can only be so passed upon application made and leave 
 granted in open court. 14 If either party is ready when a case is 
 called for argument, it is heard. 15 Otherwise, the case goes to 
 the foot of the docket, unless some good and satisfactory reason 
 to the contrary is shown to the court. 16 A case thus sent to the 
 foot of the docket, if not again reached during the term, is con- 
 tinued to the next term. 17 When a case is called for argument 
 at two successive terms, and upon the call at the second term 
 neither party is prepared to argue it, the case will be dismissed 
 at the costs of the plaintiff unless sufficient cause for a postpone- 
 ment is shown. 18 After a case has been passed without going to 
 the foot of the docket, on the written request of both parties the 
 clerk will place it on the calendar ten cases after the case under 
 argument or next to be called at the end of the day the request 
 is filed. 19 If the parties do not join in such a request, either may 
 move to take up the cause, and it will then be assigned to such 
 place on the docket as the court directs. 20 The Supreme Court 
 may postpone the argument of an important constitutional ques- 
 tion when the bench is not full. 21 
 
 The counsel for the plaintiff in error or appellant must file 
 with the clerk, at least six days before the case is called for argu- 
 ment, twenty copies of a printed brief, one of which must, on 
 application, be furnished to each of the counsel on the opposite 
 side. This brief must contain, in the order here stated: — (1) A 
 
 9 Supreme Court Rule 26. 17 Supreme Court Kule 26. 
 
 10 Supreme Court Rule 26. 18 Supreme Court Rule 19. 
 
 11 Supreme Court Rule 26. 19 Supreme Court Rule 26. 
 
 12 Supreme Court Rule 26. 20 Supreme Court Rule 26. 
 
 " Supreme Court Rule 26. 2 i Mayor of N. Y. v. Miln, 9 Pet. 85 ; 
 
 14 Supreme Court Rule 26. Briscoe v. Commonwealth Bank of Ken- 
 
 15 Supreme Court Rule 26. tucky, 9 Pet. 85. 
 
 16 Supreme Court Rule 26. 
 
 I
 
 § 408.] ARGUMENT OF APPEALS AND WPJTS OF ERROR. G21 
 
 concise abstract or statement of the case, presenting succinctly 
 the questions involved and the manner in which they are raised. 
 (2) A specification of the errors relied upon, which, in cases 
 brought up by writ of error, must set out separately and particu- 
 larly each error asserted and intended to be urged ; and in cases 
 brought up by appeal the specification must state, as particularly 
 as may be, in what the decree is alleged to be erroneous. When 
 the error alleged is to the admission or to the rejection of evi- 
 dence, the specification must quote the full substance of the evi- 
 dence admitted or rejected. When the error alleged is to the 
 charge of the court, the -specification must set out the part re- 
 ferred to in totidem verbis, whether it be instructions given or 
 instructions refused. When the error alleged is to a ruling upon 
 the report of a master, the specification must state the exception 
 to the report and the action of the court upon it. (3) A brief 
 of the argument, exhibiting a clear statement of the points of 
 law or fact to be discussed, with a reference to pages of the 
 record, and the authorities relied upon in support of each point. 
 When a statute of a State is cited, so much thereof as may be 
 deemed necessary to the decision of the case must be printed at 
 length. 22 The counsel for a defendant in error or an appellee 
 must file with the clerk twenty-five printed copies of his argu- 
 ment at least three days before the case is called for hearing. 
 His brief must be of a like character with that required of the 
 plaintiff in error or appellant, except that no specification of 
 errors is required, and no statement of the case, unless that pre- 
 sented by the plaintiff in error or appellant is controverted. 23 
 When there is no assignment of errors, as required by the Re- 
 vised Statutes, 24 counsel will not be heard, except at the request 
 of the court ; and errors not specified according to this rule will 
 be disregarded ; but the court, at its option, may notice a plain 
 error not assigned or specified. 25 When according to this rule a 
 plaintiff in error or appellant is in default, the case may be dis- 
 missed on motion; 26 and when an appellee or a defendant in 
 error is in default under this rule, he will not be heard except 
 on his adversary's consent and at the request of the court. 27 No 
 printed argument will be received after the oral argument begins 
 
 22 Supreme Court Rule 21. 25 Supreme Court Tliilo 21. 
 
 23 Supreme Court Rule 21. 26 Supreme Court Rule 21. 
 2 * See § 406 ; and U. S. R. S. § 997. 2 * Supreme Court Rule 21.
 
 622 
 
 WRITS OF ERROR AND APPEALS. 
 
 [CHAP. XXX. 
 
 or after a case has been submitted, except upon leave granted in 
 open court after notice to opposing counsel. 28 
 
 When there is no appearance for the plaintiff in error when the 
 case is called for argument, the defendant may have him called 
 and have the writ of error or appeal dismissed, or may open the 
 record and pray for an affirmance. 29 When the defendant in error 
 then fails to appear, the court may proceed to hear argument 
 on the part of the plaintiff, and to give judgment according to 
 the right of the cause. 30 When a case is reached and no appear- 
 ance is entered for either party, the case is dismissed at the cost 
 of the plaintiff. 31 A printed argument filed on behalf of either 
 party is equivalent to an appearance on his behalf. 32 
 
 When no counsel appears in the argument for either of the 
 parties and no printed brief or argument has been filed on his 
 behalf, only one counsel will be heard for the adverse party. 33 
 Otherwise, each party is entitled to be heard by two counsel and 
 no more, except by leave of the court. 34 Two hours on each 
 side is allowed on the argument of an appeal or writ of error, 
 and one hour on the argument of a motion. 35 By leave of the 
 court granted before the argument begins more time may be 
 allowed. 36 The time may be apportioned between counsel on 
 each side at their discretion ; but a fair opening of the case must 
 be made by the party having the opening and closing argu- 
 ments. 37 The plaintiff in error or appellant is entitled to open 
 and conclude the case. 38 When there are cross appeals, they are 
 argued together as one case, and the plaintiff below has the 
 right to open and conclude the argument. 39 
 
 No rehearing or reaigument will be allowed when not applied 
 for till after the term at which a cause is decided. 40 Nor, at 
 least in an equity case, after the cause has been remitted to the 
 court below, 41 unless the mandate has been recalled. 42 Nor after 
 the decision of any case, unless a justice who concurred in the 
 
 28 Supreme 
 
 29 Supreme 
 
 80 Supreme 
 
 81 Supreme 
 
 82 Supreme 
 
 83 Supreme 
 34 Supreme 
 85 Supreme 
 
 36 Supreme 
 
 37 Supreme 
 
 Court Rule 20. 
 Court Rule 16. 
 Court Rule 17. 
 Court Rule 18. 
 Court Rule 20. 
 Court Rule 21. 
 Court Rule 21. 
 Court Rules 22 and 6. 
 Court Rule 22. 
 Court Rule 22. 
 
 38 Supreme Court Rule 22. 
 
 39 Supreme Court Rule 22. 
 
 40 Hudson v. Guestier, 7 Cranch, 1. 
 
 41 Browder v. McArtliur, 7 Wheat. 58 
 Sibbald v. U. S., 12 Pet. 488; Washing 
 ton Bridge Co. v. Stewart. 3 How. 413 
 Peck v. Sanderson, 18 How. 42. 
 
 42 Killian v. Ebbinghaus, 111 U. S. 798 
 Ex parte Crenshaw, 15 Pet. 119 ; U. S 
 r. Gomez, 23 How. 326.
 
 § 409.] DECISION OF APPEALS AND WRITS OF ERROR. 623 
 
 decision moves for a rehearing, even if the court were equally 
 divided. 43 The proper practice for a party who desires a rehear- 
 ing is to submit without argument a brief printed or written 
 petition or suggestion of the points thought important. 44 
 
 § 409. Decision of Appeals and Writs of Error by Supreme 
 Court. — On a writ of error from a State court the Supreme 
 Court may re-affirm, reverse, modify, or affirm the judgment or 
 decree below ; and has discretionary power to award execution, 
 or remand the case to the court to which the writ of error issued. 1 
 The usual practice is to return to the State court a mandate 
 directing that further proceedings, if so decided, be taken in 
 conformity with the opinion of the Supreme Court. 2 Should the 
 State court refuse to obey the mandate, a second writ of error 
 may issue. 3 Upon a second writ of error, it has been held that 
 when a cause has been remanded for final judgment, nothing is 
 brought up for revision except the proceedings of the subordi- 
 nate court subsequent to the mandate. 4 Upon such second writ 
 of error the Supreme Court in one case entered a decree, and 
 issued a writ of possession to carry the same into effect. 5 Upon 
 appeals from and writs of error to Circuit and District Courts 
 of the United States, the Supreme Court cannot issue execution, 
 but sends a special mandate directing the inferior court what to 
 do. 6 The mandate may be recalled from the inferior court, and 
 corrected or set aside. 7 On a mandate affirming a decree the 
 inferior court can only record the mandate, and execute the 
 mandate and decree. 8 It has no power subsequently to amend 
 the decree. 9 Where a judgment or decree for the payment of 
 money is affirmed by the Supreme Court upon writ of error or 
 appeal, interest is awarded to the respondent or defendant in 
 error from the date of the judgment or decree until its payment, 
 
 43 Brown v. Aspden, 14 How. 25 ; U. S. Martin v. Hunter, 1 Wheat. 304, 355 ; 
 
 v. Knight, 1 Black, 488; Public Schools v. Roberts v. Cooper, 20 How. 467; Tyler 
 
 Walker, 9 Wall. 603. v . Magwire, 17 Wall. 253, 284. 
 
 ** Public Schools v. Walker, 9 Wall. 5 Tvler v. Magwire, 17 Wall. 253, 292. 
 603. e u". S. R. S. §701. 
 
 § 409. i U. S. R. S. § 709. 1 Killian v. Ebbinghaus, 111 U. S. 798 ; 
 
 2 Tyler v. Magwire, 17 Wall. 253, 261. Ex parte Crenshaw, 15 Pet. 119 ; U. S. v. 
 
 3 Martin v. Hunter, 1 Wheat. 304 ; Gomez, 23 How. 326. 
 
 Roberts v. Cooper, 20 How. 467 ; Tyler v. 8 Durant v. Essex Co., 101 U. S. 555. 
 
 Magwire, 17 Wall. 253. Rut see Campbell v. James, 31 Fed. II. 
 
 * Sizer v. Many, 16 How. 98 ; Corning 525. 
 r. Troy Iron Nail Factory, 15 How. 451, » Durant v. Essex Co., 101 U. S. 555. 
 
 466; Himely v. Rose, 5 Cranch, 313;
 
 G24 
 
 WRITS OF ERROR AND APPEALS. 
 
 [CHAP. XXX. 
 
 at the same rate that similar judgments bear interest in the 
 courts of the State where such judgment is rendered. 10 In the 
 case of decrees, the award of interest is discretionary. 11 Where 
 proceedings under the judgment or decree below have been 
 stayed, and the Supreme Court considers that the writ of error 
 or appeal was taken merely for delay, damages at the rate of ten 
 per cent, in addition to interest, may be awarded. 12 A less sum 
 may also be awarded as damages for delay, in addition to in- 
 terest. 13 Unless interest is included in the mandate, it cannot 
 be awarded by a Circuit Court after the affirmance. 14 
 
 i° Supreme Court Rule 23; U. S. R. S. 
 § 1010; Perkins v. Fourniquet, 14 How. 
 328 ; McNiel v. Holbrook, 12 Pet. 84. 
 
 u Supreme Court Rule 23; U. S. R. S. 
 § 1010. 
 
 i' 2 Supreme Court Rule 23 ; U. S. R. S. 
 § 1010; Barrow v. Hill, 13 How. 54; Sut- 
 
 ton v. Bancroft, 23 How. 320 ; Kilbourne 
 v. State Savings Institution, 22 How. 
 503. 
 
 1 3 West Wisconsin Ry. Co. v. Foley, 
 94 U. S. 100. 
 
 1* Boyce v. Grundy, 9 Pet. 275, 289.
 
 APPENDIX. 
 
 I. 
 
 FORMS. 
 
 The following forms have been selected and copied almost verbatim from 
 precedents which have been actually used in the courts. The author has in- 
 serted them by the advice of the publisher and other friends, in the hope that 
 they may be of some use to the profession ; but he disclaims all responsibility 
 for their correctness. 
 
 Form I. — Bill in Equity. 
 
 Circuit Court of the United States, Southern District of New York. 
 
 The Webster Loom Company 
 against 
 Elias S. Higgins, Henry M. Brooks, and Eugene )■ In Equity. 
 Higgins, doing business under the name and 
 style of Elias S. Higgins & Co. 
 
 To the Honorable the Judges of the Circuit Court of the United States, in and for 
 the Southern District of New York. 
 
 The Webster Loom Company, a corporation organized under and 
 pursuant to the laws of the State of New York, and having its prin- 
 cipal place of business in the City of New York in said State, brings 
 this its bill of complaint against Elias S. Higgins, Henry M. Brooks, 
 and Eugene Higgins, all of the City, County, and State of New York, 
 and citizens of said State, and doing business under the name and 
 style of Elias S. Higgins & Company. 
 
 And, thereupon, your orator complains and says that heretofore and 
 before the 27th day of August, 1872, one W T illiam Webster, then of 
 Morrisania, in the State of New York, was the original and first in- 
 ventor of a certain new and useful improvement in looms for weav- 
 ing pile fabrics, not known or used by others in this country, and not 
 patented or described in any printed publication in this or any for- 
 eign country, before his invention or discovery thereof, and not in 
 public use or on sale for more than two years prior to his application 
 for a patent therefor. 
 
 40
 
 626 APPENDIX. 
 
 And your orator further shows unto your Honors that the said 
 William Webster so being the inventor of said improvement, made 
 application to the Commissioner of Patents, in accordance with the 
 then existing laws of the United States, and complied, iu all respects 
 with the conditions and requirements of said laws. 
 
 And, thereafter, on the 27th day of August, 1872, Letters Patent of 
 the United States numbered No. 130,961, signed, sealed and executed 
 in due form of law, and bearing date the day and year last aforesaid, 
 were issued to said William Webster whereby there was secured to 
 him and to his heirs and assigns for the term of seventeen years from 
 the 27th day of August, 1872, the full and exclusive right of making, 
 using and vending the said improvement throughout the United 
 States and the Territories thereof, as by a certified copy of said Let- 
 ters Patent, in Court to be produced, will more fully appear. 
 
 And your orator further shows, that by an instrument in writing, 
 bearing date the first day of October, 1872, the said William Webster 
 duly assigned, transferred and set over unto himself, jointly with 
 Cornelius M. Meserole and William G. Smith, all his the said Web- 
 ster's right, title and interest in and to said Letters Patent and the 
 invention thereby secured, which said assignment was duly recorded 
 on the day of , 18 , in the Patent Office of ,the United 
 
 States, in Liber , as by said assignment, with the certificate of 
 recording thereto affixed, or a duly certified copy of said assignment, 
 in Court to be produced, will more fully and at large appear. 
 
 And your orator further shows, that by an instrument in writing, 
 bearing date the 20th day of October, 1873, the said Webster, Meser- 
 ole and Smith duly assigned, transferred and set over unto your ora- 
 tor all their, and each of their right, title and interest in and to said 
 Letters Patent and the invention thereby secured, which said assign- 
 ment was duly recorded on the day of , 18 , in the Patent 
 Office of the United States, in Liber , as by said assignment, with 
 the certificate of recording thei-eto affixed, or a duly certified copy of 
 said assignment, in Court to be produced, will more fully and at large 
 appear. 
 
 And your orator further shows, that thereafter, to wit, on or 
 about the 26th day of May, 1874, the said Webster individually, and 
 the said Webster, Meserole and Smith, sold, assigned, transferred 
 and set over unto your orator all and every right and cause of action 
 which they the said Webster, Meserole and Smith might have, 
 jointly or severally, against any person, firm or corporation arising 
 out of the infringement of the said Letters Patent, and your orator 
 by means of said assignments became vested with the right to re- 
 cover such damages and profits as the said Webster; Meserole and
 
 FOKMS. 627 
 
 Smith were jointly or severally entitled to recover since the said date 
 of the said patent and prior to the assignment thereof by the said 
 Webster, Meserole and Smith to your orator on or about the 20th day 
 of October, 1873. 
 
 And your orator further shows that by virtue of the assignments 
 aforesaid your orator became and now is the sole and exclusive owner 
 of said Letters Patent and of the invention and improvement therein 
 described and claimed and of all rights secured by said Letters Pat- 
 ent since the date thereof, and is entitled to be protected in the 
 enjoyment of the same. 
 
 And your orator further shows upon information and belief, that 
 prior to the assignment of the said Letters Patent to your orator, the 
 said "Webster, Meserole and Smith recovered a decree upon said 
 Letters Patent in a suit in the Circuit Court of the United States for 
 the District of New Jersey against the New Brunswick Carpet Com- 
 pany ; and also commenced a suit upon said Letters Patent in the 
 Circuit Court of the United States for the District of Massachusetts 
 against the firm of Gilbert and Taft by whom the looms used by the 
 New Brunswick Carpet Company were constructed at Worcester, 
 Massachusetts, and in which said last named suit the defendants by 
 their counsel consented to a decree restraining the construction of 
 further looms of the kind made and sold by the said Gilbert and 
 Taft to the New Brunswick Carpet Company ; and on the 27th day 
 of April, 1874, recovered a decree upon said Letters Patent against 
 one John Cochrane, Jr., in the Circuit Court of the United States for 
 the District of Massachusetts, who was also using looms constructed 
 by the said Gilbert and Taft. That on or about the first day of 
 June, 1874, a suit was commenced in the Circuit Court of the United 
 States for the Southern District of New York, against Elias S. Hig- 
 gins and Nathaniel D. Higgins for the infringement of said Letters 
 Patent. That at the October Term of said Court in the year 1878, a 
 decision was rendered in said suit by the Honorable Hoyt H. 
 Wheeler, denying the relief prayed for in said suit and directing 
 that a decree be entered dismissing the Bill of Complaint with 
 costs. 
 
 That said decree was duly entered and an appeal was duly taken to 
 the Supreme Court of the United States. 
 
 That said cause came on to be heard at the October term of said 
 Supreme Court in the year 1881, and a decision was rendered sus- 
 taining the validity of said Letters Patent and adjudging the in- 
 fringement of said Letters Patent by the said defendants Elias S. 
 Higgins and Nathaniel D. Higgins, and directing that the decree of 
 the said Circuit Court be reversed and the cause remanded with
 
 628 APPENDIX. 
 
 instructions to enter a decree in favor of the complainants and to take 
 such further proceedings as law and justice might require. 
 
 That thereafter a decree against said defendants was duly entered 
 in said Circuit Court for the Southern District of New York in con- 
 formity with the mandate of the said Supreme Court. 
 
 All which matters and things will more fully and at large ap- 
 pear by reference to said decisions and decrees, or duly authenticated 
 copies thereof here in Court to be produced, to which your orator 
 craves leave to refer. 
 
 And your orator further shows that but for the infringement 
 herein complained of, and others of like character, your orator would 
 still be in the undisturbed possession, use and enjoyment of the ex- 
 clusive privilege secured by the said Letters Patent, and in receipt 
 of the profits of the same. 
 
 And your orator further shows unto your Honors, as it is informed 
 and believes, that since the date of said Letters Patent, the defend- 
 ants herein named, well knowing all the facts hereinbefore set forth, 
 and against the will of your orator, and in violation of your orator's 
 rights, have been and are now jointly infringing said Letters Patent 
 within the District aforesaid, and elsewhere within the United States, 
 by constructing or causing to be constructed, and by using and causing 
 to be used, looms for weaving pile fabrics, each of which contains the 
 invention described and claimed in the said Letters Patent, all which 
 acts and doings are contrary to equity and good conscience, and tend 
 to the manifest injury of your orator in the premises. 
 
 Forasmuch as your orator can have no adequate relief, except in 
 this court, and to the end, therefore, that the defendants may, if they 
 can show why your orator should not have the relief hereby prayed, 
 and may make a full disclosure and discovery of all the matters 
 aforesaid, and according to the best and utmost of their knowledge, 
 remembrance, information and belief, full, true, direct and perfect 
 answer make to the matters hereinbefore stated and charged ; but 
 not under oath, an answer under oath being hereby expressly waived. 
 
 And that the defendant may be decreed to account for and pay 
 over the income or profits thus unlawfully derived from the violation 
 of your orator's rights, and be restrained from any further violation 
 of said rights, your orator prays that your Honors may grant a writ 
 of injunction, issuing out of and under the seal of this Honorable 
 Court, perpetually enjoining and restraining the said defendants, 
 their clerks, attorneys, agents, servants and workmen from any ' 
 further construction, sale or use in any manner of said patented im- 
 provement, or any part thereof, in violation of your orator's rights as 
 aforesaid, and that the material now in possession or use of the said
 
 FORMS. 629 
 
 defendants may be destroyed or delivered up to your orator for that 
 purpose. 
 
 And that your Honors, upon the rendering of the decree above 
 prayed, may assess or cause to be assessed, in addition to the profits 
 to be accounted for by the defendants as aforesaid, the damages your 
 orator has sustained by reason of such infringement, and that your 
 Honors may increase the actual damages so assessed to a sum equal 
 to three times the amount of such assessment under the circum- 
 stances of the wilful and unjust infringement by said defendants as 
 herein set forth. 
 
 And your orator further prays that a provisional or preliminary 
 injunction be issued restraining the said defendants from any further 
 infringement of said Letters Patent pending this cause, and for such 
 other and further relief as the equity of the case may require, and to 
 your Honors may seem meet. 
 
 May it please your Honors to grant unto your orator, not only a 
 writ of injunction conformable to the prayer of this bill, but also a 
 writ of subpoena of the United States of America, directed to the said 
 Elias S. Higgins, Henry M. Brooks, and Eugene Higgins, command- 
 ing them on a day certain to appear and answer unto this bill of 
 complaint, and to abide and perform such order and decree in the 
 premises as to the Court shall seem proper and required by the prin- 
 ciples of equity and good conscience. 
 
 Brown & Jones, 
 
 Solicitors for Complainant and of Counsel. 
 Webster Loom Company, 
 
 by Wm. G. Smith, President. 
 United States of America, ) . 
 Southern District of New York > 
 
 On this 19th day of August, 1889, before me personally appeared 
 Wm. G. Smith, the President of the Webster Loom Company, 
 the complainant above named, who being by me duly affirmed, de- 
 poses and says, that he is the President of the Webster Loom Com- 
 pany and familiar with its business, and that he has read the 
 foregoing bill of complaint, and knows the contents thereof, and that 
 the same is true of his own knowledge, except as to the matters 
 therein stated on information and belief, and as to those matters he 
 believes it to be true. 
 
 Affirmed and subscribed before me, this 19th day of August, 1889. 
 
 Wm. G. Smith. 
 Anthony Gref, 
 
 Notary Public, Kings County. 
 
 Certificate filed in N. Y. Co.
 
 630 APPENDIX. 
 
 Form II. — Precipe for Subpcena ad Bespondendum. 
 
 Circuit Court of the United States, for the Southern District of 
 
 New York. 
 John Doe * 
 
 against V In Equity. 
 Richard Roe. ) 
 
 John A. Shields, Clerk Circuit Court, U. S. Southern District of N. Y.: 
 
 You will please issue a Subpoena to the defendant Kichard Eoe in 
 the above entitled action, returnable on the first Monday of January, 
 
 1890. 
 
 Brown & Jones, Solicitors for Complainant, 
 
 111 Broadway, New York, N. Y. 
 Dated New York, December 1, 1889. 
 
 Form III. — Subposna. 
 
 The President of the United States of America, to Richard Roe, greet- 
 ing : 
 
 You are hereby commanded that you Bichard Eoe personally ap- 
 pear before the Judges of the Circuit Court of the United States of 
 America, for the Southern District of New York, in the Second 
 Circuit Court, in equity, on the first Monday of January, A. D. 1890, 
 wherever the said Court shall then be, to answer a bill of complaint 
 exhibited against you in the said Court by John Doe, and do further 
 and receive what the said Court shall have considered in that behalf. 
 And this you are not to omit under the penalty on you of two hun- 
 dred and fifty dollars. 
 
 Witness, Honorable Melville W. Fuller, Chief Justice of the 
 Supreme Court of the United States, at the City of New York, on 
 the tenth day of December, in the year one thousand eight hundred 
 and eighty-nine, and of the Independence of the United States of 
 America, the one hundred and thirteenth. 
 
 John A. Shields, Clerk. 
 Brown & Jones, Complainants SoVrs, 
 
 111 Broadway, New York, N. Y. 
 
 The Defendant is required to enter appearance in the above cause, 
 in the Clerk's office of this Court, on or before the first Monday of 
 January, 1890, or the bill will be taken pro confesso against him. 
 
 John A. Shields, Clerk. 

 
 FORMS. 631 
 
 Form IV. — Precipe for Appearance. 
 
 Circuit Court of the United States for the Southern District of 
 
 New York. 
 John Doe ~\ 
 
 against > In Equity. 
 Richard Roe. ) 
 
 To John A. Shields, Esq., Clerk of the U. S. Circuit Court for the Southern 
 District of New York. 
 You will please enter my appearance for the defendant Richard 
 Roe in the above entitled suit. 
 Yours, &c;, 
 
 John S. White, Solicitor for Defendant, 
 
 319 Broadway, New York, N. Y. 
 New York, December 18, 1889. 
 
 Form V. — Demurrer. 
 
 Circuit Court of the United States for the Southern District of 
 
 New York. 
 
 John Styles \ 
 
 against > In Equity. 
 
 Robert Roe aud Richard Doe. ) 
 
 The demurrer of the above-named defendant Robert Roe to the bill 
 of complaint of the above-named plaintiff. 
 
 This defendant, by protestation, not confessing or acknowledging 
 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 herein 
 set forth and alleged, doth demur to the said bill. And for causes of 
 demurrer showeth, 
 
 I. That it appeareth by the plaintiff's own showing by the said bill, 
 that he is not entitled to the relief prayed by the bill against this 
 defendant. 
 
 II. That it appears by 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 
 Richard Doe has been duly adjudicated a bankrupt, and that Henry 
 Brown has been duly appointed assignee of his estate, and that it 
 appears by the said bill that said Henry Brown as assignee as afore- 
 said is a necessary party to the said bill ; but that said Henry Brown 
 is not made a party thereto.
 
 632 
 
 APPENDIX. 
 
 III. That the said bill is exhibited against these defendants, and 
 against several other defendants to the said bill, for several and dis- 
 tinct and independent matters and causes which have no relation to 
 each other, and in which or in the greater part of which this defendant 
 is in no way interested or concerned, and ought not to be implicated. 
 
 Wherefore, and for divers other good causes of demurrer appear- 
 ing on the said bill, this defendant doth demur thereto. And he 
 prays the judgment of this Honorable Court whether he shall be 
 compelled to make any answer to the said bill ; and he humbly prays 
 to be hence dismissed with his reasonable costs in this behalf sus- 
 tained. 
 
 Henry Jones, 
 
 Solicitor and of Counsel for Defendant Robert Roe, 
 111 Broadway, New York. 
 
 I hereby certify that the foregoing demurrer is in my opinion 
 
 well founded in point of law. 
 
 Henry Jones, 
 
 of Counsel for Defendant Robert Roe. 
 
 New York, V- 
 New York. ) 
 
 New York, August 9, 1889. 
 
 State of New York, 
 
 City and County of New 
 
 Southern District of 
 
 Eobert Roe, being duly sworn, deposes and says : I am one of the 
 
 above-named defendants. The foregoing demurrer is not interposed 
 
 for delay. 
 
 Robert Roe. 
 
 Sworn to before me this 9th day of August, 1889. 
 Sylvanus Brown, 
 
 Notary Public, New York Co., N. Y. 
 
 SEAL. 
 
 Form VI. — Plea. 
 
 In the Circuit Court of the United States for the Southern District 
 
 of New York. 
 
 Between John Stiles, Plaintiff, \ 
 
 and > In Equity. 
 
 Robert Roe and Richard Doe, Defendants. ) 
 
 The plea of the above named defendant Richard Doe to the bill of 
 complaint of the above named plaintiff. 
 
 I, the defendant Richard Doe, by protestation, not confessing or 
 acknowledging all or any part of the matters or things in the said
 
 FORMS. 633 
 
 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 administrator of the estate of Jane Doe as in 
 the said bill alleged, and that the administrator of said Jane Doe is 
 one Kobert Hereford, which said administrator ought to be made a 
 party or parties to the said bill as I am advised ; all which matters 
 and things I aver to be true, and plead the same to the said bill, 
 and humbly crave the judgment of this Honorable Court whether I 
 ought to be compelled to make any further or other answer to the 
 said bill. 
 
 Henry Jones, 
 
 Solicitor and of Counsel for Defendant Richard Doe, 
 
 111 Broadway, New York. 
 
 I hereby certify that the foregoing plea is in my opinion well 
 founded in point of law. New York, August 9th, 1889. 
 
 Henry Jones, 
 of Counsel for Defendant Richard Doe. 
 State of New York, \ 
 
 City and County of New York, >- ss. 
 Southern District of New York. ) 
 
 Richard Doe, being duly sworn, deposes and says : I am one of the 
 above named defendants. The foregoing plea is true in point of fact, 
 and is not interposed for delay. Sworn to before me, this 9th day of 
 August, 1889. Eichard Doe. 
 
 Sylvanus Brown, 
 Notary Public, N. Y. C. 
 
 Form VII. — Answer. 
 
 Circuit Court of the United States for the Southern District of 
 New York. 
 
 John Halford and Richard Davis ) 
 
 against V In Equity. 
 
 Henry Hawes. ) 
 
 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, seized in fee- 
 simple of the premises in the first paragraph of the said bill men- 
 tioned. And I admit that the indenture in the said first paragraph
 
 634 APPENDIX. 
 
 of the said bill mentioned was of such date, and made between such 
 parties as in the first said paragraph of the said bill alleged, and that 
 the same was executed by me. I believe that the said indenture was 
 not executed by Henry Baker in the said bill mentioned. I believe 
 that the said indenture was of or to the purport and effect in the said 
 first paragraph of the said bill in that behalf set forth ; but for my 
 greater certainty I crave to refer to the same when produced to this 
 Honorable Court. 
 
 2. I do not know aud cannot set forth as to my belief or otherwise, 
 whether the said Henry Baker died on the seventh day of May, 1867, 
 or when he died ; or whether or not having by 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 
 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 Surrogate's Court for 
 the city and county of New York 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 rela- 
 tions, and for many years previously to the year 1864, and thencefor- 
 ward to his death, he suffered from continual ill-health and infirmity. 
 My mother, Sarah Hawes, was in the service of the said Henry Baker 
 as house keeper from the year 1855 down to the time of the death of 
 the said Henry Baker, and was in continual attendance upon him ; 
 and the said Henry Baker frequently expressed to my said mother 
 his gratitude for her attention to his comfort in that his illness. 
 
 4. I attained my age of twenty-one years in the year 1864. In the 
 early part of that year my said mother applied to the said Henry 
 Baker to advance me the sum of one thousand dollars to enable me 
 to enter business, which he agreed to do on having the repayment 
 thereof with interest secured by the said indenture of the first day of 
 June, 1864. 
 
 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 se- 
 curity 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 rewarding your mother and yourself for her long and faithful ser- 
 vices to me," — as by such letter when produced will appear. 
 
 6. I have never made any payments whatsoever on account of in-
 
 FORMS. 635 
 
 terest 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 said mother died on the twenty-seventh day of December, 
 1867. 
 
 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 representatives 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 other- 
 wise, 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 bill mentioned, and that I have advertised 
 the bricks composing the same to be sold as building materials. I 
 deny 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 same. 
 
 10. I admit that if the said house be pulled down, the said prem- 
 ises would be an insufficient security for the sum of one thousand 
 dollars with interest thereon at the rate of five 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 
 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. 
 
 Henry Hawes. 
 Robert Jones, 
 
 Solicitor for Henry Hawes, 
 
 111 Broadway, New York. 
 
 defendant's oath to answer. 
 State of New York, 
 City and County of New York, 
 Southern District of New York 
 
 Henry Hawes, being duly sworn, deposes and says : T am the above- 
 named defendant. So much of the foregoing answer as concerns my 
 own acts and deeds is true to the best of my own knowledge ; and so 
 much thereof as concerns the acts or deeds of any other person or 
 persons, I believe to be true. 
 
 Henry Hawes. 
 
 Sworn to before me this 20th day of July, 1875, 
 Sylvanus Brown, 
 
 Notary Public, New York County.
 
 636 APPENDIX. 
 
 Form VIII. — Disclaimer. 
 
 Circuit Court of the United States for the Southern District of 
 New York. 
 
 Robert Aber 
 
 against > In Equity, 
 
 llnE 
 Richard Flagg.) 
 
 The disclaimer of the defendant, Richard Flagg, to the bill of com- 
 plaint of the complainant, Robert Aber. 
 
 This defendant, saving and reserving to himself any and all ad- 
 vantages that might be taken by exception to said bill, saith, that he 
 doth not know that he, this defendant, to his knowledge and belief, 
 ever had, nor did he claim or pretend to have, nor doth he now claim, 
 any right, title, or interest of, in, or to the estates and premises, 
 situate [describing them], in the said complainant's bill set forth, 
 or any part thereof ; and this defendant doth disclaim all right, 
 title, and interest to the said estate and premises in [naming their 
 situation], in the said complainant's bill mentioned, and every part 
 thereof. 
 
 [Conclusion as in Form VII.] 
 
 Form IX. — Replication. 
 
 Circuit Court of the United States for the Southern District of 
 New York. 
 
 John Stiles, Plaintiff. 
 
 against 
 
 John Doe and Robert Roe, Defendants. 
 
 This repliant, John Stiles, saving and reserving to himself all and 
 all manner of advantage of exception, which may be had and taken to 
 the manifold errors, uncertainties, and insufficiencies of the answer of 
 the said defendants for replication thereunto, saith, that he doth and 
 will aver, maintain, and prove his said bill to be true, certain, and suffi- 
 cient in the law to be answered unto by the said defendants, and 
 that the answer of the said defendants is very uncertain, evasive, and 
 insufficient in law, to be replied unto by this repliant ; without that, 
 that any other matter or thing in the said answer contained, material 
 or effectual in the law to be replied unto, and not herein and hereby 
 well and sufficiently replied unto, confessed or avoided, traversed or 

 
 FORMS. 637 
 
 denied, is true ; all which matters and things this repliant is ready to 
 aver, maintain, and prove as this honorable court shall direct, and 
 humbly prays as in and by his said bill he hath already prayed. 
 
 Robert Jones, 
 
 Solicitor for Plaintiff. 
 
 Ill Broadway, New York. 
 
 Form X. — Bill of Eevivor. 
 
 United Sates Circuit Court, Southern District of New York. 
 
 The Webster Loom Company. 
 against 
 Emma L. Higgins, Eugene Higgins and Josephine Brooks, 
 as Executors of the last Will and Testament of Elias S. 
 Higgins, deceased, Y In Equity. 
 
 and 
 
 Jules Reynal and John H. Higgins, surviving trustees, and 
 Nathalie Florence Reynal, residuary legatee under the last 
 Will and Testament of Nathaniel D. Higgins, deceased. 
 
 To the Honorable, the Judges of the Circuit Court of the United States, for the 
 Southern District of Neio York : — 
 
 The Webster Loom Company, a Corporation organized under and 
 pursuant to the Laws of the State of New York, and having its prin- 
 cipal place of business in the City of New York in said State, brings 
 this its bill of revivor against Emma L. Higgins, Eugene Higgins 
 and Josephine Brooks, as Executors of the Last Will and Testament 
 of Elias S. Higgins, deceased, and Jules Reynal and John H. Hig- 
 gins, surviving trustees, — and Nathalie Florence Reynal, residuary 
 legatee under the Last Will and Testament of Nathaniel D. Higgins, 
 deceased. Said Emma L. Higgins, Josephine Brooks, Eugene Hig- 
 gins, Jules Reynal, John H. Higgins and Nathalie Florence Reynal 
 being citizens of the State of New York and residents of the City of 
 New York in said State ; and thereupon your orator complains and 
 says that on or about the 19th day of June, 1874, your orator filed a 
 bill in equity in this Court against Elias S. Higgins and Nathaniel D. 
 Higgins, alleging infringement by them of certain Letters Patent of 
 the United States, which were numbered No. 130,961 and dated August 
 27th, 1872, of which your orator was at that time, and is now, the 
 owner.
 
 63S APPENDIX. 
 
 That thereafter the said Elias S. Higgins and Nathaniel D. Higgins 
 having been duly served with the writ of subpoena, appeared by 
 Counsel and filed their Answer to said bill of Complaint, to which 
 answer a replication was filed on the part of your orator. 
 
 That thereafter your orator proceeded to take proof in support of 
 its said bill of complaint ; and thereafter said defendants proceeded 
 to take proofs in support of their said answer and in defense of said 
 actions. 
 
 That thereafter said suit was brought to final hearing before the 
 Honorable Hoyt H. Wheeler ; that said Judge filed his decision on 
 the 31st day of May, 1879, adjudging invalidity of the fifth claim of 
 the patent — being the claim in suit — and dismissing the said bill of 
 complaint, as by reference to said decision reported in 15 Blatch- 
 ford 446 will more fully and at large appear. 
 
 That thereafter your orator appealed to the Supreme Court of the 
 United States from the decision of the Circuit Court for the Southern 
 District of New York ; that the said appeal was argued before said 
 Supreme Court of the United States, and a decision made by said 
 Court, the opinion being written by Mr. Justice Bradley adjudging 
 the validity of said patent and that defendants had infringed the 
 same, and remanded the cause to this Court, ordering a decree against 
 said defendants restraining them from further infringement, and also 
 granting a reference to a Master to ascertain and report damages and 
 profit caused by said infringement — all of which will more fully and 
 at large appear by reference to said decision reported in 15 Otto, 
 580. 
 
 That thereafter the accounting in this cause was commenced and 
 voluminous proofs taken. 
 
 That thereafter the Master filed his report awarding nominal 
 damages to your orator, against said defendants. 
 
 That thereafter on exceptions duly filed to said report, argument 
 was had before His Honor Judge Shipman on motion to confirm said 
 Master's report; that said Judge filed an opinion on the 26th day of 
 July, 1889, re-committing said accounting to the Master for further 
 action in accordance with the said opinion. That no order has yet 
 been entered on Judge Shipman's decision. 
 
 That during the pendency of said accounting the defendant Nath- 
 aniel D. Higgins died, leaving a last Will and Testament, which on 
 the 31st day of January 1882, was admitted to probate in the Sur- 
 rogate's Court of New York County, New York, and letters executory 
 thereupon were on said 31st day of January, 1882, duly issued out of 
 said Surrogate's Court unto Elias S. Higgins, Jules Reynal and John 
 H. Higgins. 

 
 FORMS. 639 
 
 That said Will after directing the payment of an inconsiderable 
 percentage of the testator's estate as specified legacies to certain per- 
 sons therein named, directed the said executors to hold in trust for 
 the benefit of the testator's grandchildren, for a period of time that 
 has not yet expired, the sum of One Million and Five hundred thou- 
 sand dollars, and to pay the rest and residue of testator's estate unto 
 his daughter Nathalie Florence Reynal. 
 
 That on the 31st day of December, 1888, said executors filed their 
 final accounting in the office of the Surrogate of the County of New 
 York, N. Y., whereby it appeared that they had paid said specific 
 legacies, and that after paying to Nathalie F. Reynal aforesaid a sum 
 amounting to between three and four millions of dollars, they still 
 retained in trust for the benefit of said grandchildren of said testator 
 the sum of One Million and Five hundred thousand dollars. 
 
 That said account was approved by said Surrogate and an order was 
 entered in the Court of said Surrogate on the 31st day of December, 
 1888, discharging and releasing said Elias S. Higgins, Jules Reynal 
 and John H. Higgins from their duties as executors under said last 
 Will and Testament, but directing them to continue to hold said trust 
 fund of One Million and Five hundred thousand dollars as directed in 
 said last Will and Testament. 
 
 That said Elias S. Higgins, Jules Reynal and John H. Higgins 
 thenceforth continued to so act as trustees under said Will as to said 
 trust fund, and said Jules Reynal and John H. Higgins are now so 
 acting. 
 
 That the aforesaid Elias S. Higgins died upon the 18th day of 
 August, 1889, leaving a last Will and Testament, which on the 14th 
 day of September, 1889, was admitted to probate in the Surrogate's 
 Court of New York County, New York, and letters executory there- 
 upon were on said 14th day of September, 1889, duly issued out of 
 said Surrogate's Court unto Emma L. Higgins, Eugene Higgins and 
 Josephine Brooks, and still remain in full force and virtue. 
 
 Wherefore, your orator prays that the said cause may be revived 
 by the decree of this Honorable Court, and that it may proceed to a 
 decree in its favor in accordance with the prayer of the original bill 
 of complaint herein. 
 
 Your orator further prays that a writ of subpoena may issue in due 
 form of law, directed to the aforesaid defendants Emma L. Higgins, 
 Eugene Higgins and Josephine Brooks as Executrices and Executor 
 of the Estate of Elias S. Higgins, deceased, and Jules Reynal and 
 John H. Higgins as trustees, and Nathalie Florence Reynal as resid- 
 uary legatee under the Will of Nathaniel D. Higgins, deceased, and 
 requiring them to appear and show cause, if any they have, why
 
 640 
 
 APPENDIX. 
 
 this cause should not be revived : and if no cause shall be shown by- 
 said defendants why said suit should not be revived, that a decree 
 be entered reviving said suit in favor of your orator. 
 And your orator will ever pray, &c. 
 
 Webster Loom Company, by 
 
 Wm, G. Smith, Prest. 
 Brown & Jones, 
 
 Solicitors and of Counsel for Complainant, 
 5 Beekman Street, New York. 
 
 J 
 
 ss: 
 
 State of New York, 
 
 City and County op New Yor 
 
 William G. Smith, being duly sworn, says that he resides in the 
 City and County of New York, and is the President of the Webster 
 Loom Company, the complainant herein ; that he has read the fore- 
 going bill of revivor and knows the contents thereof and that the 
 same is true of his own knowledge. 
 
 Deponent further says that the reason why this verification is not 
 made by the complainant is, that it is a Corporation ; that deponent 
 is an officer of the same, to wit, President. 
 
 Wm. G. Smith. 
 
 Sworn to before me this 3d day of December, 1889, 
 A. G. N. Vermilye, 
 
 Notary Public, N. Y. Co. 
 
 Form XI. — Notice of taking Testimony. 
 
 Circuit Court of the United States for the Southern District of 
 
 New York. 
 
 John Stiles, Complainant, \ 
 
 against > In Equity. 
 
 John Doe, Defendant. ) 
 
 Notice is hereby given, That we shall proceed to take proofs 
 for final hearing on the part of the complainant under the 67th Rule 
 of the Supreme Court for courts in equity, as amended, or in accord- 
 ance with the statutes in such case made and provided, and in pur- 
 suance of the rules and practice of this Court, before Henry Roberts, 
 an Examiner of this Court, or some other proper officer, under said 
 statutes and rules, at Room 4, Number 206 Broadway, New York, on 
 the 20th day of July, 1889, at 11 o'clock in the forenoon.
 
 FORMS. 641 
 
 The names and residences of the witnesses who live at a greater 
 distance from the place of trial than one hundred miles, whom it is 
 intended to examine, are stated below. 
 
 You are invited to attend and cross-examine any witnesses pro- 
 duced. The examination will be adjourned from day to day, and to 
 such time and place as may be required, without further notice. 
 
 Brown & Black, 
 
 Complainant's Solicitors. 
 
 No. 206 Broadway, New York. 
 Dated New York City, July 1, 1889. 
 
 To Frank Farwell, Esq., 
 
 Solicitor for Defendant. 
 
 Names of Witnesses and Residences. 
 
 John Smith of Yonkers, New York. 
 Henry Robinson of Newark, New Jersey. 
 
 Form XII. — Master's Warrant or Summons. 
 
 Circuit Court of the United States for the Southern District of 
 
 New York. 
 
 John Doe, Plaintiff, \ 
 
 against > In Equity. 
 
 Richard Roe, Defendant.) 
 
 In pursuance of the authority contained in a decretal order made 
 in this cause by the Honorable William J. Wallace, Circuit Judge, 
 and the Honorable Nathaniel Shipman, District Judge, at a stated 
 Term of this court held at the United States Court House in the City 
 of New York on the 5th day of July, A. D. 1888, I, Benjamin Smith, 
 one of the Masters of said Court, do hereby summon you, John Doe, 
 complainant and Richard Roe, defendant, to appear before me, the 
 said Benjamin Smith, at my office at No. 206 Broadway, in the City 
 and County of New York in the Southern District of New York, on 
 the fourth day of January, A. D. 1889, at two o'clock in the after- 
 noon to attend a hearing before me, the said master, of the matters 
 in reference in the said cause to be had by virtue of the decretal 
 order aforesaid. And hereof fail not at your peril. 
 
 Benjamin Smith, Master. 
 Dated the 28th day of December, 1888. 
 
 Underwritiag : To take the account in the suit. 
 
 Benjamin Smith, Master. 
 To John Doe and Richard Roe. 
 
 41
 
 642 APPENDIX. 
 
 Form XIII. — Notice accompanying Draft of Master's Eeport. 
 
 Circuit Court of the United States for the Southern District of 
 
 New York. 
 
 John Doe, Complainant ~\ 
 
 against > In Equity. 
 
 Richard Roe, Defendant. ) 
 
 Sirs : You are hereby notified that I have prepared the draft of 
 my Report upon the matters referred to me as Master, by the Inter- 
 locutory Decree herein dated the 30th day of November, 1887, and 
 that a copy of such draft Report accompanies and is annexed to this 
 notice and is herewith served upon you; you are also hereby notified 
 that I shall sign and file said Draft Report as my Report herein, 
 unless alterations are made by me therein, upon suggestions of coun- 
 sel for either party hereto, and that I appoint the 26th day of Feb- 
 ruary, 1889, at my office, Room 3, No. 10 Wall Street, in the City and 
 County of New York, at 11 o'clock in the forenoon of said day, for 
 counsel for either party hereto to present to me any suggestions of 
 amendments to or alterations of said Draft Report, and to file with 
 me written objections or exceptions thereto, if any they have to the 
 same. 
 
 Yours, &c, 
 
 Benjamin Smith, Master. 
 Dated New York, February 21, 
 
 To Messrs. Brown & Black, Complainant's Solicitors, 
 
 1 Broadway ; 
 and Robert Jones, Defendant's Solicitor. 
 
 Ill Broadway, New York City. 
 
 Form XIV. — Writ of Ne Exeat. 
 
 The President of the United States of America to the Marshal of the Southern 
 District of New York: 
 Greeting, — Whereas it is represented to us in our Circuit Court 
 of the United States for the Southern District of New York in equity, 
 on the part of John Aber, complainant, against Charles Dutton, de- 
 fendant (among other things), that he, the said defendant, is greatly 
 indebted to the said complainant and designs quickly to go into 
 parts without the United States (as by oath made on that behalf 
 appears), which tends to the great prejudice and damage of the said
 
 FORMS. 643 
 
 complainant. Therefore, in order to prevent this injustice, we do 
 hereby command you, that you do, without delay, cause the said 
 Richard Blodgett personally to appear before you, and give sufficient 
 bail or security in the sum of $5,000 that the said Charles Dutton will 
 not go, or attempt to go, into parts without the United States, with- 
 out leave of our said Court ; and in case the said Charles Dutton 
 shall refuse to give such Bail or Security, then you are to commit the 
 said Charles Dutton to our next prison, there to be kept in safe 
 custody, until he shall do it of his own accord; and, when you 
 shall have taken such security, you are forthwith to make and re- 
 turn a certificate thereof to us in our said Circuit Court of the 
 United States for the Southern District of New York distinctly 
 and plainly under your hand, together with this Writ. 
 
 Witness, the Honorable Melville W. Fuller, Chief Justice of the 
 Supreme Court of the United States, at the City of New York, in 
 the County and State of New York, the thirteenth day of Novem- 
 ber, one thousand eight hundred and eighty-nine. 
 
 Joiin A. Shields, Clerk. 
 
 Frank Jones, Solicitor for Complainant. 
 Ill Broadway, New York. 
 
 Indorsement: Writ of Ne Exeat for the sum of $ 5,000. 
 Let the within Writ issue. 
 
 E. Henry Lacombe, Circuit Judge. 
 
 Form XV. — Wrtt of Habeas Corpus. 
 
 The President of the United States of America to Martin T. McMahnn, Marshal 
 of the United States for the Southern District of New York, Greeting : 
 
 We command you, That you have the body of John Doe, by you 
 imprisoned and detained, as it is said, together with the time and 
 cause of such imprisonment and detention, by whatsoever name said 
 John Doe shall be called or charged, before a stated term of the Cir- 
 cuit Court of the United States for the Southern District of New 
 York, to be held in the Post-Office Building in the city and county 
 and State of New York, on the ninth day of December, 1889, to do 
 and receive what shall then and there be considered concerning said 
 John Doe. and have vou then and there this writ.
 
 644 
 
 APPENDIX. 
 
 Witness, Hon. Melville W. Fuller, Chief Justice of the United 
 States, the fifth day of December, one thousand eight hundred and 
 
 eighty-nine. 
 
 John A. Shields, Clerk. 
 Robert Jones, Petitioner's Attorney, 
 206 & 208 Broadway, New York. 
 
 Indorsement : Let the within writ issue. 
 
 E. Henry Lacombe, Circuit Judge. 
 
 Form XVI. — Petition for Removal from a State Court to 
 a Circuit Court of the United States. 
 
 Supreme Court, County of New York. 
 
 John Stiles, Plaintiff, 
 
 against 
 Robert Roe, Defendant. 
 
 To the Honorable, the Supreme Court of the State of New York, held in and for 
 the County of New York : — 
 
 Your petitioner respectfully shows to this Honorable Court that 
 the matter and amount in dispute in the above entitled suit exceeds, 
 exclusive of costs, the sum or value of two thousand dollars. 
 
 That the controversy in said suit is between citizens of different 
 States, and that the Petitioner, the defendant in the above entitled 
 suit, was at the time of the commencement of this suit, and still is, 
 citizen of the State of Massachusetts, and that the plaintiff, John 
 Stiles, was then, and still is, citizen of the State of New York. 
 
 And your petitioner offers herewith a good and sufficient surety for 
 his entering in the Circuit Court of the United States for the Southern 
 District of New York, on the first day of its next session, a copy of 
 the record in this suit, and for paying all costs that may be awarded 
 by said Circuit Court, if said court shall hold that this suit was 
 wrongfully or improperly removed thereto. 
 
 And he prays this Honorable Court to proceed no further herein, 
 except to make the order of removal required by law, and to accept 
 the said surety and bond, and to cause the record herein to be re- 
 moved into said Circuit Court of the United States in and for the 
 Southern District of New York ; and he will ever pray. 
 
 Robert Roe. 
 White & Black, Petitioner's Attorneys, 
 206 Broadway, New York, N. Y.
 
 FOKMS. 645 
 
 City and County of New York. 
 
 Robert Roe deposes and says : I am the above-named petitioner. 
 The foregoing petition is true to my own knowledge, except as to the 
 matters therein stated to be alleged upon information and belief, and 
 as to those matters I believe it to be true. 
 
 Robert Roe. 
 Sworn to before me, this 18th day of December, 1889, 
 
 Sylvanus Brown, Notary Public, 
 New York County. 
 
 On this 18th day of December, 1889, in the City and County of 
 New York, before me, a notary public, in and for the City and County 
 of New York, personally appeared Robert Roe, to me known to be the 
 individual who executed the foregoing petition, and then and there 
 acknowledged to me that he had executed the same. 
 
 Sylvanus Brown, Notary Public, 
 New York County. 
 
 Form XVII. — Bond on Removal. 
 
 Know all Men by these Presents, That Robert Roe, of Boston, 
 Massachusetts, as principal, and Peter Kenny, as surety, are holden 
 and stand firmly bound unto John Stiles in the penal sum of one 
 thousand dollars, for the payment whereof well and truly to be made 
 unto the said John Stiles, his heirs, representatives and assigns, we 
 bind ourselves, our heirs, representatives and assigns, jointly and sev- 
 erally firmly by these presents. 
 
 Upon condition nevertheless that, whereas the said Robert Roe has 
 petitioned the Supreme Court of the State of New York, held in and 
 for the County of New York, for the removal of a certain cause therein 
 pending, wherein the said John Stiles is plaintiff, and the said Robert 
 Roe is defendant ; to the Circuit Court of the United States in and 
 for the Southern District of New York. 
 
 Now, if the said Robert Roe shall enter in the said Circuit Court of 
 the United States, on the first day of its next session, a copy of the 
 record in said suit, and shall well and truly pay all costs that may be 
 awarded by said Circuit Court of the United States, if said Court shall 
 hold that said suit was wrongfully or improperly removed thereto then 
 this obligation shall be void ; otherwise it shall remain in full force 
 and virtue.
 
 646 APPENDIX. 
 
 In Witness Whereof the said Robert Roe and Peter Kenny have 
 
 hereunto set their hands and seals this 18th day of December, A. D. 
 
 1889. 
 
 Robert Roe. [l. s.] 
 
 Peter Kenny. [l. s.] 
 
 City and County of New York. 
 
 Peter Kenny, being duly sworn, deposes and says : I reside in the 
 City, County, and State of New York, and am a freeholder therein ; 
 and am worth the sum of two thousand dollars over and above all 
 property exempt from sale on execution. 
 
 Peter Kenny. 
 
 Sworn to before me, this 18th day of December, 1889, 
 Sylvanus Brown, Notary Public, 
 New York County. 
 
 On this 18th day of December, 1889, in the city and county of 
 New York, before me, a notary public in and for the city and county 
 of New York, personally appeared the above-named Robert Roe and 
 Peter Kenny, and then and there each of them severally acknowledged 
 that he had executed the foregoing bond. 
 
 Sylvanus Brown, Notary Public, 
 
 New York County. 
 Approved by 
 
 George C. Barrett, J. S. C. 
 
 Form XVIII. — Pinal Record in Equity. 
 Circuit Court of the United States, Southern District of New York. 
 
 John Stiles ) 
 
 against > In Equity. 
 Robert Roe. ) 
 
 The complainant in the above entitled cause filed his bill of com- 
 plaint, which is hereunto annexed, on 2d day of January, one thou- 
 sand eight hundred and eighty-seven, and the writ of subpoena was 
 thereupon issued, and returned personally served. 
 
 An appearance was duly entered for the defendant by Henry Smith, 
 his solicitor, and on the first Monday of March thereafter an answer 
 to said bill of complaint was filed, the same being hereto annexed. 
 
 On the first Monday of April thereafter, the complainant filed a 
 replication, the same being hereto annexed.
 
 FORMS. 647 
 
 On the 19th day of March, one thousand eight hundred and eighty- 
 seven, an order of the Court granting to the complainant a preliminary 
 injunction as prayed for in the bill of complaint was filed and entered, 
 which said order is hereunto annexed. 
 
 Testimony was thereafter taken by the respective parties, and filed 
 in the clerk's office of the said Circuit Court. 
 
 Afterwards, and at the October term of 1888 of said Court, present 
 the Honorable Nathaniel D. Shipman, District Judge, the said cause 
 came on to be heard on the pleadings and proofs, and was argued by 
 counsel. On the 3d day of November, one thousand eight hundred 
 and eighty-eight, a decree of said Court was filed and entered in 
 favor of the complainant, by which it was adjudged that a perpetual 
 injunction should issue against the defendant, and that an account- 
 ing be had before John A. Shields, Master of said Court ; the said 
 order being hereto annexed. 
 
 On the 9th day of June, one thousand eight hundred and eighty- 
 nine, the said Master filed his report, upon which, and on the 11th 
 day of October, one thousand eight hundred and eighty-nine, the said 
 court caused its final decree to be entered herein, the same being 
 hereto annexed. 
 
 And the costs having been taxed by the clerk at seven hundred and 
 fifty dollars, the process, pleadings, and decrees together with other 
 papers filed in said cause, are duly annexed hereunto. 
 
 Wherefore let the said John Stiles recover of said Robert Eoe the 
 sum of two thousand dollars as adjudged in said final decree, together 
 with the further sum of seven hundred and fifty dollars, the cost and 
 charges as taxed, making in the aggregate the sum of two thousand 
 seven hundred and fifty dollars. 
 
 Signed and enrolled this loth day of November, A. D. 1889. 
 
 John A. Shields, Clerk. 
 
 Form XIX. — Appeal and Allowance. 
 
 Circuit Court of the United States, for the Southern District of 
 New York. 
 
 John Doe, Plaintiff, Appellant, 
 
 against 
 Richard Roe, Defendant, Respondent. 
 
 The above named plaintiff, John Doe, conceiving himself aggrieved 
 by the order entered on December 3, 1889, in the above entitled pro- 
 ceeding, doth hereby appeal from said order to the Supreme Court of 
 the United States, and he prays that this his appeal may be allowed ;
 
 643 
 
 APPENDIX. 
 
 and that a transcript of the record and proceedings and papers upon 
 which said order was made, duly authenticated, may be sent to the 
 Supreme Court of the United States. 
 
 Robert Jones, 
 
 Attorney for Plaintiff and Appellant, John Doe, 
 
 206 & 208 Broadway, New York, N. Y. 
 New York, December 17, 1889. 
 
 And now, to wit : On December 18th, 1889 ; it is ordered that the 
 appeal be allowed as prayed for. 
 
 E. Henry Lacombe, Circuit Judge. 
 
 Form XX. — Citation on Appeal. 
 United States of America, ss : 
 To Richard Roe, Greeting : 
 
 You are hereby cited and admonished to be and appear at a 
 Supreme Court of the United States, to be holden at Washington, 
 on the second Monday of October, eighteen hundred and ninety, pur- 
 suant to an appeal, filed in the Clerk's Office of the Circuit Court of 
 the United States for the Southern District of New York, wherein 
 John Doe is appellant and Eichard Eoe is respondent, to show cause, 
 if any there be, why the judgment in the said writ of error mentioned 
 should not be corrected, and speedy justice should not be done to the 
 parties on that behalf. 
 
 Witness the Hon. Melville W. Fuller, Chief Justice of the United 
 States this 18th day of December, in the year of our Lord one thou- 
 sand eight hundred and eighty nine. 
 
 E. Henry Lacombe, Circuit Judge. 
 
 Form XXL — Supersedeas Bond. 
 
 Circuit Court of the United States of America, for the Southern District 
 of New York, in the Second Circuit. 
 
 John Doe, Appellant, 
 
 against 
 Richard Roe, Respondent. 
 
 Know all men by these presents, That we, John Doe and 
 George Palliser, both of the city, county, and State of New York, 
 are held and firmly bound unto the above named Richard Roe in the 

 
 FORMS. 649 
 
 sum of two hundred and fifty dollars, to be paid to the said Richard 
 Roe, for the payment of which well and truly to be made, we bind 
 ourselves, and each of- us, our and each of our heirs, executors, and 
 administrators, jointly and severally firmly by these presents. Sealed 
 with our seals, and dated the 18th day of December, in the year of 
 our Lord one thousand eight hundred and eighty nine. "Whereas, 
 the above named John Doe has prosecuted an appeal to the Supreme 
 Court of the United States, to reverse the decree rendered in the 
 above entitled suit, by the Judge of the Circuit Court of the United 
 States, for the Southern District of New York. 
 
 Now therefore, the condition of this obligation is such, that if 
 the above named John Doe shall prosecute said appeal to effect and 
 answer all damages and costs, if he fail to make said appeal good, 
 then this obligation shall be void, otherwise the same shall be and 
 remain in full force and virtue. 
 
 John Doe [l. s.]. 
 
 George Palliseb [l. s.]. 
 
 Sealed and delivered, and taken and acknowledged, 
 this 18th day of December, 1889, before me 
 John A. Shields, U. S. Commissioner. 
 Approved by 
 
 E. Henry Lacombe, 
 Circuit Judge. 
 
 Form XXII. — Writ of Error to Federal Court. 
 
 United States of America, ss : 
 
 The President of the United States, To the Honorable the. Judges of the Circuit 
 Court of the United States for the Southern District of New York, Greeting : 
 
 Because in the record and proceedings, as also in the rendition of 
 the judgment of a plea which is in the said Circuit Court, before you, 
 or some of you, between John Stiles, plaintiff, and Richard Roe, de- 
 fendant, a manifest error hath happened, to the great damage of the 
 said defendant, Richard Roe, as by his complaint appears. We being 
 willing that error, if any hath been, should be duly corrected, and 
 full and speedy justice done to the parties aforesaid in this behalf, do 
 command you, if judgment be therein given, that then under your 
 seal, distinctly and openly, you send the record and proceedings afore- 
 said, with all things concerning the same, to the Supreme Court of the 
 United States, together with this writ, so that you have the same at 
 Washington, on the second Monday of October next, in the said 
 Supreme Court, to be then and there held, that the record and pro-
 
 650 APPENDIX. 
 
 ceedings aforesaid being inspected, the said Supreme Court may 
 cause further to be done therein to correct that error, what of right, 
 and according to the laws and customs of the United States, should 
 be done. 
 
 Witness the Honorable Melville W. Fuller, Chief Justice of the 
 said Supreme Court, the 19th day of September, in the year of our 
 Lord one thousand eight hundred and eighty-nine. 
 
 James Hall McKexxey, 
 Clerk of the Supreme Court of the United States. 
 Allowed by 
 
 Samuel A. Blatchford, 
 Justice. 
 
 Form XXIII. — Writ of Error to State Court. 
 United States of America, ss : 
 
 The President of the United States of America, To the Honorable the Judges of 
 the Supreme Judicial Court of the Commonwealth of Massachusetts, 
 
 Greeting : — Because in the record and proceedings, as also in the 
 rendition of the judgment of a plea which is in the said Supreme 
 Judicial Court of the Commonwealth of Massachusetts before you, or 
 some of you, being the highest court of law or equity of the said 
 State in which a decision could be had in the said suit between John 
 Doe and Bichard Boe, wherein was drawn in question the validity of 
 a treaty or statute of, or an authority exercised under, the United 
 States, and the decision was against their validity ; or wherein was 
 drawn in question the validity of a statute of, or an authority exer- 
 cised under, said State, on the ground of their being repugnant to the 
 Constitution, treaties, or laws of the United States, and the decision 
 was in favor of such their validity ■ or wherein was drawn in ques- 
 tion the construction of a clause of the Constitution, or of a treat}-, 
 or statute of, or commission held under the United States, and the 
 decision was against the title, right, privilege, or exemption specially 
 set up or claimed under such clause of the said Constitution, treaty, 
 statute, or commission ; a manifest error hath happened to the great 
 damage of the said Bichard Boe, as by his complaint appears. We 
 being willing that error, if any hath been, should be duly corrected, 
 and full and speedy justice done to the parties aforesaid in this be- 
 half, do command you, if judgment be therein given, that then under 
 your seal, distinctly and openly, you send the record and proceedings 
 aforesaid, with all things concerning the same, to the Supreme Court
 
 FORMS. 651 
 
 of the United States, together with this writ, so that you have the 
 same at Washington, on the second Monday of October next, in the 
 said Supreme Court, to be then and there held, that the record and 
 proceedings aforesaid being inspected, the said Supreme Court may 
 cause further to be done therein to correct that error, what of right, 
 and according to the laws and customs of the United States, should 
 be done. 
 
 Witness the Honorable Melville W. Fuller, Chief Justice of the 
 said Supreme Court, the 18th day of December, in the year of our 
 Lord one thousand eight hundred and eighty-nine. 
 
 James Hall McKenney, 
 Clerk of the Supreme Court of the United Slates. 
 Allowed by 
 
 Horace Gray, 
 Justice. 
 
 Form XXIV. — Assignment of Errors. 
 The Supreme Court of the United States. 
 
 In the Matter of the Petition of John Stiles, Appellant. 
 
 Assignment of Errors. Afterwards to wit : on the third Friday 
 of January in the year of our Lord, eighteen hundred and ninety ; 
 at the October term for eighteen hundred and eighty-nine, of the 
 Supreme Court of the United States, at the Capitol, in the City of 
 Washington and District of Columbia, comes the said John Stiles, by 
 Kobert Jones, his attorney, and says that in the record and proceed- 
 ings in the above entitled matter there is manifest error in this, to 
 wit : — 
 
 i. 
 
 That the matters charged in the complaint against John Stiles do 
 not constitute a crime by the Common Law or under any Statute 
 of the United States. 
 
 II. 
 
 That the matters testimony tending to prove which was given 
 before John A. Shields, United States Commissioner, in the above 
 entitled matter do not constitute a crime by the common law or under 
 any Statute of the United States. 
 
 in. 
 
 That the matters charged as a crime against John Stiles, as appears 
 by the testimony before John A. Shields, United States Commis-
 
 652 APPENDIX. 
 
 sioner, occurred and were committed, if they ever occurred or were 
 committed, within the Southern District of New York, and not with- 
 in the District of Connecticut ; and that by the Sixth Amendment to 
 the Constitution of the United States, said John Stiles cannot be 
 tried upon said charges in the District Court of the United States for 
 the District of Connecticut. 
 
 IV. 
 
 That the said Commissioner had no jurisdiction to issue a warrant 
 for the arrest of John Stiles. 
 
 v. 
 
 That the Marshal of the United States had no authority to arrest 
 or detain John Stiles. 
 
 VI. 
 
 That the Circuit Court of the United States for the Southern Dis- 
 trict of New York erred in not discharging the said John Stiles upon 
 the return of the Writ of Habeas Corpus herein. 
 
 Wherefore the said John Stiles prays that the order of the said 
 Circuit of the United States for the Southern District of New York 
 be reversed, and the said Circuit Court of the United States for the 
 Southern District of New York be ordered to enter an order directing 
 the discharge of the said John Stiles from custody. 
 
 Robert Jones, 
 
 Attorney for Appellant, 
 
 206 & 208 Broadway, New York. 
 
 Form XXV. — Praecipe for Appearance in Supreme Court. 
 
 Supreme Court of the United States. 
 
 No. October Term, 1889. 
 
 John Doe, Appellant. 
 
 vs. 
 Richard Roe, Respondent. 
 
 The Clerk will enter my appearance as Counsel for the Respondent. 
 
 Henry Smith, 
 
 1 Broadway, New York, N. Y. 
 
 [Must be signed by a member of the Bar of Supreme Court, United States. 
 Individual and not firm-names must be signed.]
 
 RECENT IMPORTANT STATUTES. 653 
 
 II. 
 
 RECENT IMPORTANT STATUTES. 
 
 Judiciary Act of 1875, as amended in 1887 and 1SS8, Acts of Fiftieth Con- 
 gress, Sess. I., ch. 866, approved August 13th, 1888; 25 St. at L. p. 433: — 
 
 Chap. 866. — An act to correct the enrollment of an act approved March 
 third, eighteen hundred and eighty-seven, entitled " An act to amend 
 sections one, two, three, and ten of an act to determine the jurisdiction 
 of the circuit courts of the United States, and to regulate the removal of 
 causes from the State courts, and for other purposes, approved March 
 third, eighteen hundred and seventy-five." 
 
 " Be it enacted by the Senate and House of Representatives of the 
 United States of America in Congress assembled, That the act ap- 
 proved March third, eighteen hundred and eighty-seven, entitled 
 " An act to amend sections one, two, three, and ten of an act to deter- 
 mine the jurisdiction of the circuit courts of the United States, and 
 to regulate the removal of causes from State courts, and for other 
 purposes, approved March third, eighteen hundred and seventy-five," 
 be, and the same is hereby amended so as to read as follows : 
 
 "Be it enacted by the Senate and House of Representatives of the 
 United States of America in Congress assembled, That the first sec- 
 tion of an act entitled ' An act to determine the jurisdiction of circuit 
 courts of the United States and to regulate the removal of causes 
 from State courts, and for other purposes,' approved March third, 
 eighteen hundred and seventy-five, be, and the same is hereby, 
 amended so as to read as follows : 
 
 "That the circuit courts of the United States shall have original 
 cognizance, concurrent with the courts of the several States, of all 
 suits of a civil nature, at common law or in equity, where the matter 
 in dispute exceeds, exclusive of interest and costs, the sum or value of 
 two thousand dollars, and arising under the Constitution or laws of 
 the United States, or treaties made, or which shall be made, under 
 their authority, or in which controversy the United States are plain- 
 tiffs or petitioners, or in which there shall be a controversy between 
 citizens of different States, in which the matter in dispute exceeds,
 
 654 APPENDIX. 
 
 exclusive of interest and costs, the sum or value aforesaid, or a con- 
 troversy between citizens of the same State claiming lands under 
 grants of different States, or a controversy between citizens of a State 
 and foreign states, citizens, or subjects, in which the matter in dis- 
 pute exceeds, exclusive of interest and costs, the sum or value afore- 
 said, and shall have exclusive cognizance of all crimes and offences 
 cognizable under the authority of the United States, except as other- 
 wise provided by law, and concurrent jurisdiction with the district 
 courts of the crimes and offences cognizable by them. But no person 
 shall be arrested in one district for trial in another in any civil action 
 before a circuit or district court ; and no civil suit shall be brought 
 before either of said courts against any person by any original pro- 
 cess or proceeding in any other district than that whereof he is an 
 inhabitant, but where the jurisdiction is founded only on the fact 
 that the action is between citizens of different States, suit shall be 
 brought only in the district of the residence of either the plaintiff or 
 the defendant ; nor shall any circuit or district court have cognizance 
 of any suit, except upon foreign bills of exchange, to recover the 
 contents of any promissory note or other chose in action in favor of 
 any assignee, or of any subsequent holder if such instrument be pay- 
 able to bearer and be not made by any corporation, unless such suit 
 might have been prosecuted in such court to recover the said contents 
 if no assignment or transfer had been made ; and the circuit courts 
 shall also have appellate jurisdiction from the district courts under 
 the regulations and restrictions prescribed by law." 
 
 That the second section of said act be, and the same is hereby, 
 amended so as to read as follows : 
 
 "Sec. 2. That any suit of a civil nature, at law or in equity, 
 arising under the Constitution or laws of the United States, or 
 treaties made, or which shall be made, under their authority, of 
 which the circuit courts of the United States are given original 
 jurisdiction by the preceding section, which may now be pending, 
 or which may hereafter be brought, in any State court, may be re- 
 moved by the defendant or defendants therein to the circuit court of 
 the United States for the proper district. Any other suit of a civil 
 nature, at law or in equity, of which the circuit courts of the United 
 States are given jurisdiction by the preceding section, and which are 
 now pending, or which may hereafter be brought, in any State court, 
 may be removed into the circuit court of the United States for the 
 proper district by the defendant or defendants therein, being non- 
 residents of that State. And when in any suit mentioned in this 
 section there shall be a controversy which is wholly between citizens 
 of different States, and which can be fully determined as between
 
 RECENT IMPORTANT STATUTES. C55 
 
 them, then either one or more of the defendants actually interested 
 in such controversy may remove said suit into the circuit court of 
 the United States for the proper district. And where a suit is now 
 pending, or may be hereafter brought, in any State court, in which 
 there is a controversy between a citizen of the State in which the suit 
 is brought and a citizen of another State, any defendant, being such 
 citizen of another State, may remove such suit into the circuit court 
 of the United States for the proper district, at any time before the 
 trial thereof, when it shall be made to appear to said circuit court 
 that from prejudice or local influence he will not be able to obtain 
 justice in such State court, or in any other State court to which the 
 said defendant may, under the laws of the State, have the right, on 
 account of such prejudice or local influence, to remove said cause : 
 Provided, That if it further appear that said suit can be fully and 
 justly determined as to the other defendants in the State court, with- 
 out being affected by such prejudice or local influence, and that no 
 party to the suit will be prejudiced by a separation of the parties, 
 said circuit court may direct the suit to be remanded, so far as re- 
 lates to such other defendants, to the State court, to be proceeded 
 with therein. 
 
 " At any time before the trial of any suit which is now pending in 
 any circuit court or may hereafter be entered therein, and which has 
 been removed to said court from a State court on the affidavit of any 
 party plaintiff that he had reason to believe and did believe that, 
 from prejudice or local influence, he was unable to obtain justice in 
 said State court, the circuit court shall, on application of the other 
 party, examine into the truth of said affidavit and the grounds thereof, 
 and, unless it shall appear to the satisfaction of said court that said 
 party will not be able to obtain justice in such State court, it shall 
 cause the same to be remanded thereto. 
 
 "Whenever any cause shall be-removed from any State court into 
 any circuit court of the United States, and the circuit court shall 
 decide that the cause was improperly removed, and order the same 
 to be remanded to the State court from whence it came, such remand 
 shall be immediately carried into execution, and no appeal or writ 
 of error from the decision of the circuit court so remanding such 
 cause shall be allowed." 
 
 That section three of said act be, and the same is hereby, amended 
 so as to read as follows : 
 
 " Sec. 3. That whenever any party entitled to remove any suit 
 mentioned in the next preceding section, except in such cases as are 
 provided for in the last clause of said section, may desire to remove 
 such suit from a State court to the circuit court of the United States,
 
 656 APPENDIX. 
 
 he may make and file a petition in such suit in such State court at the 
 time, or any time before the defendant is required by the laws of the 
 State or the rule of the State court in which such suit is brought to 
 answer or plead to the declaration or complaint of the plaintiff, for 
 the removal of such suit into the circuit court to be held in the dis- 
 trict where such suit is pending, and shall make and file therewith a 
 bond, with good and sufficient surety, for his or their entering in such 
 circuit court, on the first day of its then next session, a copy of the 
 record in such suit, and for paying all costs that may be awarded by 
 the said circuit court if said court shall hold that such suit was 
 wrongfully or improperly removed thereto, and also for their appear- 
 ing and entering special bail in such suit if special bail was originally 
 requisite therein. It shall then be the duty of the State court to ac- 
 cept said petition and bond, and proceed no further in such suit ; and 
 the said copy being entered as aforesaid in said circuit court of the 
 United States, the cause shall then proceed in the same manner as if 
 it had been originally commenced in the said circuit court ; and if in 
 any action commenced in a State court the title of land be concerned, 
 and the parties are citizens of the same State, and the matter in dis- 
 pute exceed the sum or value of two thousand dollars, exclusive of 
 interest and costs, the sum or value being made to appear, one or 
 more of the plaintiffs or defendants, before the trial, may state to 
 the court, and make affidavit if the court require it, that he or they 
 claim and shall rely upon a right or title to the land under a grant 
 from a State, and produce the original grant, or an exemplification 
 of it, except where the loss of public records shall put it out of his or 
 their power, and shall move that any one or more of the adverse party 
 inform the court whether he or they claim a right or title to the land 
 under a grant from some other State, the party or parties so required 
 shall give such information, or otherwise not be allowed to plead such 
 grant or give it in evidence upon the trial ; and if he or they inform 
 that he or they do claim under such grant, any one or more of the 
 party moving for such information may then, on petition and bond, 
 as hereinbefore mentioned in this act, remove the cause for trial to 
 the circuit court of the United States next to be holden in such dis- 
 trict; and any one of either party removing the cause shall not be 
 allowed to plead or give evidence of any other title than that by him 
 or them stated as aforesaid as the ground of his or their claim." 
 
 Sec. 2. That whenever in any cause pending in any court of the 
 United States there shall be a receiver or manager in possession of 
 any property, such receiver or manager shall manage and operate 
 such propevt)' according to the requirements of the valid laws of the 
 State in which such property shall be situated, in the same manner
 
 RECENT IMPORTANT STATUTES. 657 
 
 that the owner or possessor thereof would be bound to do if in pos- 
 session thereof. Any receiver or manager who shall willfully violate 
 the provisions of this section shall be deemed guilty of a misdemeanor, 
 and shall, on conviction thereof, be punished by a fine not exceeding 
 three thousand dollars, or by imprisonment not exceeding one year, 
 or by both said punishments, in the discretion of the court. 
 
 Sec. 3. That every receiver or manager of any property appointed 
 by any court of the United States may be sued in respect of any act 
 or transaction of his in carrying on the business connected with such 
 property, without the previous leave of the court in which such re- 
 ceiver or manager was appointed ; but such suit shall be subject to 
 the general equity jurisdiction of the court in which such receiver or 
 manager was appointed, so far as the same shall be necessary to the 
 ends of justice. 
 
 Sec 4. That all national banking associations established under 
 the laws of the United States shall, for the purposes of all actions by 
 or against them, real, personal, or mixed, and all suits in equity, be 
 deemed citizens of the States in which they are respectively located ; 
 and in such cases the circuit and district courts shall not have juris- 
 diction other than such as they would have in cases between indi- 
 vidual citizens of the same State. 
 
 The provisions of this section shall not be held to affect the juris- 
 diction of the courts of the United States in cases commenced by the 
 United States or by direction of any officer thereof, or cases for wind- 
 ing up the aifairs of any such bank. 
 
 Sec. 5. That nothing in this act shall be held, deemed, or construed 
 to repeal or affect any jurisdiction or right mentioned either in sec- 
 tions six hundred and forty-one, or in six hundred and forty-two, or 
 in six hundred and forty-three, or in seven hundred and twenty-two, 
 or in title twenty-four of the Revised Statutes of the United States, 
 or mentioned in section eight of the act of Congress of which this act 
 is an amendment, or in the act of Congress approved March first, 
 eighteen hundred and seventy-five, entitled "An act to protect all 
 citizens in their civil and legal rights." 
 
 Sec 6. That the last paragraph of section five of the act of Con- 
 gress approved March third, eighteen hundred and seventy-five, en- 
 titled " An act to determine the jurisdiction of circuit courts of the 
 United States and to regulate the removal of causes from State courts, 
 and for other purposes," and section six hundred and forty of the 
 Revised Statutes, and all laws and parts of laws in conflict with the 
 provisions of this act, be, and the same are hereby repealed : Provided, 
 That this act shall not affect the jurisdiction over or disposition of 
 any suit removed from the court of any State, or suit commenced in 
 
 42
 
 658 APPENDIX. 
 
 any court of the United States, before the passage hereof except as 
 otherwise expressly provided in this act. 
 
 Sec. 7. That no person related to any justice or judge of any court 
 of the United States by affinity or consanguinity within the degree 
 of first cousin shall hereafter be appointed by such court or judge 
 to, or employed by such court or judge in, any office or duty in any 
 court of which such justice or judge may be a member. 
 
 Acts of Fiftieth Congress, Sess. II., ch. 236, approved February 25, 18S9; 
 25 St. at L. p. 693 : — 
 
 Chap. 236. — An act to provide for writs of error or appeals to the Supreme 
 Court of the United States in all cases involving the question of the juris- 
 diction of the courts below. 
 Be it enacted by the Senate and House of Representatives of the 
 United States of America in Congress assembled, That in all cases 
 where a final judgment or decree shall be rendered in a circuit court 
 of the United States in which there shall have been a question in- 
 volving the jurisdiction of the court, the party against whom the 
 judgment or decree is rendered shall be entitled to an appeal or writ 
 of error to the Supreme Court of the United States to review such 
 judgment or decree without reference to the amount of the same ; 
 but in cases where the decree or judgment does not exceed the sum 
 of five thousand dollars the Supreme Court shall not review any 
 question raised upon the record except such question of jurisdiction ; 
 such writ of error or appeal shall be taken and allowed under the 
 same provisions of law as apply to other writs of error or appeals 
 except as provided in the next following section. 
 
 Sec 2. That in cases of judgments or decrees mentioned in the 
 first section of this act, and heretofore rendered, where the period of 
 limitation for taking writs of error or appeals in other cases has not 
 expired, appeals or writs of error may be sued out at any time within 
 one year after the passage of this act. 
 
 Acts of Forty-Ninth Congress, Session II., chapter 359, approved March 
 3, 1887 ; 24 St. at L. p. 505 : — 
 
 Chap. 359. — An act to provide for the bringing of suits against the Govern- 
 ment of the United States. 
 Be it enacted by the Senate and House of Representatives of the 
 United States of America in Congress assembled, That the Court of 
 Claims shall have jurisdiction to hear and determine the following 
 matters :
 
 RECENT IMPORTANT STATUTES. 659 
 
 First. All claims founded upon the Constitution of the United 
 States or any law of Congress, except for pensions, or upon any regu- 
 lation of an Executive Department, or upon any contract, expressed 
 or implied, with the Government of the United States, or for dama- 
 ges, liquidated or unliquidated, in cases not sounding in tort, in 
 respect of which claims the party would be entitled to redress against 
 the United States either iu a court of law, equity, or admiralty if 
 the United States were suable : Provided, however, That nothing iu 
 this section shall be construed as giving to either of the courts herein 
 mentioned, jurisdiction to hear and determine claims growing out of 
 the late civil war, and commonly known as " war claims," or to hear 
 and determine other claims, which have heretofore been rejected, or 
 reported on adversely by any court, Department, or commission 
 authorized to hear and determine the same. 
 
 Second. All set-offs, counter-claims, claims for damages, whether 
 liquidated or unliquidated, or other demands whatsoever on the part 
 of the Government of the United States against any claimant against 
 the Government in said court : Provided, That no suit against the 
 Government of the United States, shall be allowed under this act 
 unless the same shall have been brought within six years after the 
 right accrued for which the claim is made. 
 
 Sec. 2. That the district courts of the United States shall have 
 concurrent jurisdiction with the Court of Claims as to all matters 
 named in the preceding section where the amount of the claim does 
 not exceed one thousand dollars, and the circuit courts of the United 
 States shall have such concurrent jurisdiction in all cases where the 
 amount of such claim exceeds one thousand dollars and does not ex- 
 ceed ten thousand dollars. All causes brought and tried under the 
 provisions of this act shall be tried by the court without a jury. 
 
 Sec 3. That whenever any person shall present his petition to the 
 Court of Claims alleging that he is or has been indebted to the 
 United States as an officer or agent thereof, or by virtue of any con- 
 tract therewith, or that he is the guarantor, or surety, or personal 
 representative of any officer, or agent, or contractor so indebted, or 
 that he, or the person for whom he is such surety, guarantor, or per- 
 sonal representative has held any office or agency under the United 
 States, or entered into any contract therewith, under which it may be 
 or has been claimed that an indebtedness to the United States has 
 arisen and exists, and that he or the person he represents has applied 
 to the proper Department of the Government requesting that the ac- 
 count of such office, agency, or indebtedness may be adjusted and 
 settled, and that three years have elapsed from the date of such ap- 
 plication and said account still remains unsettled and unadjusted,
 
 660 APFSNDIX. 
 
 and that no suit upon the same has been brought by the United 
 States, said court shall, due notice first being given to the head of 
 said Department and to the Attorney-General of the United States, 
 proceed to hear the parties and to ascertain the amount, if any, due 
 the United States on said account. The Attorney-General shall rep- 
 resent the United States at the hearing of said cause. The court may 
 postpone the same from time to time whenever justice shall require. 
 The judgment of said court or of the Supreme Court of the United 
 States, to which an appeal shall lie, as in other cases, as to the 
 amount due, shall be binding and conclusive upon the parties. The 
 payment of such amount so found due by the court shall discharge 
 such obligation. An action shall accrue to the United States against 
 such principal, or surety, or representative to recover the amount so 
 found due, which may be brought at any time within three years 
 after the final judgment of said court. Unless suit shall be brought 
 within said time, such claim and the claim on the original indebted- 
 ness shall be forever barred. 
 
 Sec. 4. That the jurisdiction of the respective courts of the United 
 States proceeding under this act, including the right of exception and 
 appeal, shall be governed by the law now in force, in so far as the 
 same is applicable and not inconsistent with the provisions of this 
 act 5 and the course of procedure shall be in accordance with the 
 established rules of said respective courts, and of such additions and 
 modifications thereof as said courts may adopt. 
 
 Sec. 5. That the plaintiff in any suit brought under the provisions 
 of the second section of this act shall file a petition, duly verified 
 with the clerk of the respective court having jurisdiction of the case, 
 and in the district where the plaintiff resides. Such petition shall 
 set forth the full name and residence of the plaintiff, the nature of 
 his claim, and a succinct statement of the facts upon which the claim 
 is based, the money or any other thing claimed, or the damages 
 sought to be recovered and praying the court for a judgment or de- 
 cree upon the facts and law. 
 
 Sec. 6. That the plaintiff shall cause a copy of his petition filed 
 under the preceding section to be served upon the district attorney of 
 the United States in the district wherein suit is brought, and shall 
 mail a copy of the same, by registered letter, to the Attorney-General 
 of the United States, and shall thereupon cause to be filed with the 
 clerk of the court wherein suit is instituted an affidavit of such ser- 
 vice and the mailing of such letter. It shall be the duty of the dis- 
 trict attorney upon whom service of petition is made as aforesaid to 
 appear and defend the interests of the Government in the suit, and 
 within sixty days after the service of petition upon him, unless the 
 
 I
 
 RECENT IMPORTANT STATUTES. 661 
 
 time should be extended by order of the court made in the case to file 
 a plea, answer, or demurrer on the part of the Government, and to 
 file a notice of any counter-claim, set-off, claim for damages, or other 
 demand or defence whatsoever of the Government in the premises : 
 Provided, That should the district attorney neglect or refuse to file' 
 the plea, answer, demurrer, or defence, as required, the plaintiff may 
 proceed with the case under such rules as the court may adopt in the 
 premises; but the plaintiff shall not have judgment or decree for his 
 claim, or any part thereof, unless he shall establish the same by proof 
 satisfactory to the court. 
 
 Sec. 7. That it shall be the duty of the court to cause a written 
 opinion to be filed in the cause, setting forth the specific findings by 
 the court of the facts therein and the conclusions of the court upon 
 all questions of law involved in the case, and to render judgment 
 thereon. If the suit be in equity or admiralty, the court shall pro- 
 ceed with the same according to the rules of such courts. 
 
 Sec. 8. That in the trial of any suit brought under any of the pro- 
 visions of this act, no person shall be excluded as a witness because 
 he is a party to or interested in said suit ; and any plaintiff or 
 party in interest may be examined as a witness on the part of the 
 Government. 
 
 Section ten hundred and seventy-nine of the Revised Statutes is 
 hereby repealed. The provisions of section ten hundred and eighty 
 of the Revised Statutes shall apply to cases under this act. 
 
 Sec. 9. That the plaintiff or the United States, in any suit brought 
 under the provisions of this act shall have the same rights of appeal 
 or writ of error as are now reserved in the statutes of the United 
 States in that behalf made, and upon the conditions and limitations 
 therein contained. The modes of procedure in claiming and perfect- 
 ing an appeal or writ of error shall conform in all respects, and as 
 near as may be, to the statutes and rules of court governing appeals 
 and writs of error in like causes. 
 
 Sec 10. That when the findings of fact and the law applicable 
 thereto have been filed in any case as provided in section six of this 
 act, and the judgment or decree is adverse to the Government, it 
 shall be the duty of the district attorney to transmit to the Attorney- 
 General of the United States certified copies of all the papers filed in 
 the cause, with a transcript of the testimony taken, the written find- 
 ings of the court, and his written opinion as to the same ; whereupon 
 the Attorney-General shall determine and direct whether an appeal 
 or writ of error shall be taken or not; and when so directed the 
 district attorney shall cause an appeal or writ of error to be perfected 
 in accordance with the terms of the statutes and rules of practice
 
 662 APPENDIX. 
 
 governing the same : Provided, That no appeal or writ of error shall 
 be allowed after six months from the judgment or decree in such 
 suit. From the date of such final judgment or decree interest shall 
 be computed thereon, at the rate of four per centum per annum, until 
 the time when an appropriation is made for the payment of the judg- 
 ment or decree. 
 
 Sec. 11. That the Attorney-General shall report to Congress, and 
 at the beginning of each session of Congress, the suits under this act 
 in which a final judgment or decree has been rendered giving the date 
 of each, and a statement of the costs taxed in each case. 
 
 Sec. 12. That when any claim or matter may be pending in any of 
 the Executive Departments which involves controverted questions of 
 fact or law, the head of such Department, with the consent of the 
 claimant, may transmit the same, with the vouchers, papers, proofs, 
 and documents pertaining thereto, to said Court of Claims, and the 
 same shall be there proceeded in under such rules as the court may 
 adopt. When the facts and conclusions of law shall have been found, 
 the court shall report its findings to the Department by which it was 
 transmitted. 
 
 Sec. 13. That in every case which shall come before the Court of 
 Claims, or is now pending therein, under the provisions of an act en- 
 titled " An act to afford assistance and relief to Congress and the Ex- 
 ecutive Departments in the investigation of claims and demands 
 against the Government," approved March third, eighteen hundred 
 and eighty-three, if it shall appear to the satisfaction of the court, 
 upon the facts established, that it has jurisdiction to render judg- 
 ment or decree thereon under existing laws or under the provisions 
 of this act, it shall proceed to do so, giving to either party such 
 further opportunity for hearing as in its judgment justice shall 
 require, and report its proceedings therein to either House of 
 Congress or to the Department by which the same was referred to 
 said court. 
 
 Sec 14. That whenever any bill, except for a pension, shall be 
 pending in either House of Congress providing for the payment of a 
 claim against the United States, legal or equitable, or for a grant, 
 gift, or bounty to any person, the House in which such bill is pend- 
 ing may refer the same to the Court of Claims, who shall proceed 
 with the same in accordance with the provisions of the act approved 
 March third, eighteen hundred and eighty-three, entitled an " Act to 
 afford assistance and relief to Congress and the Executive Depart- 
 ments in the investigation of claims and demands against the Gov- 
 ernment," and report to such House the facts in the case and the 
 amount, where the same can be liquidated, including any facts bearing
 
 EECENT IMPORTANT STATUTES. 663 
 
 upon the question whether there has been delay or laches in present- 
 ing such claim or applying for such grant, gift, or bounty, and any 
 facts bearing upon the question whether the bar of any statute of 
 limitation should be removed or which shall be claimed to excuse the 
 claimant for not having resorted to any established legal remedy. 
 
 Sec. 15. If the Government of the United States shall put in issue 
 the right of the plaintiff to recover the court may, in its discretion, 
 allow costs to the prevailing party from the time of joining such 
 issue. Such costs, however, shall include only what is actually in- 
 curred for witnesses, and for summoning the same, and fees paid 
 to the clerk of the court. 
 
 Sec. 16. That all laws and parts of laws inconsistent with this act 
 are hereby repealed.
 
 664 APPENDIX. 
 
 III. 
 
 RULES OF PRACTICE IN EQUITY. 
 
 Preliminary Regulations. 
 
 1. The circuit courts, as courts of equity, shall be deemed always 
 open for the purpose of filing bills, answers, and other pleadings ; 
 for issuing and returning mesne and final process and commissions ; 
 and for making and directing all interlocutory motions, orders, rules, 
 and other proceedings, preparatory to hearing of all causes upou their 
 merits. 
 
 2. The clerk's office shall be open, and the clerk shall be in atten- 
 dance therein, on the first Monday of every month, for the purpose 
 of receiving, entering, entertaining, and disposing of all motions, rules, 
 orders, and other proceedings, which are grantable of course and 
 applied for, or had by the parties, or their solicitors, in all causes 
 pending in equity, in pursuance of the rules hereby prescribed. 
 
 3. Any judge of the circuit court, as well in vacation as in term, 
 may, at chambers, or on the rule-days at the clerk's office, make and 
 direct all such interlocutory orders, rules, and other proceedings, pre- 
 paratory to the hearing of all causes upon their merits, in the same 
 manner and with the same effect as the circuit court could make and 
 direct the same in term, reasonable notice of the application therefor 
 being first given to the adverse party, or his solicitor, to appear and 
 show cause to the contrary, at the next rule-day thereafter, unless 
 some other time is assigned by the judge for the hearing. 
 
 4. All motions, rules, orders, and other proceedings, made and 
 directed at chambers, or on rule-days at the clerk's office, whether 
 special or of course, shall be entered by the clerk in an order-book, to 
 be kept at the clerk's office, on the day when they are made and 
 directed; which book shall be open at all office-hours to the free 
 inspection of the parties in any suit in equity, and their solicitors. 
 And, except in cases where personal or other notice is specially re- 
 quired or directed, such entry in the order-book shall be deemed suffi- 
 cient notice to the parties and their solicitors, without further service 
 thereof, of all orders, rules, acts, notices, and other proceedings
 
 RULES OF PRACTICE IN EQUITY. 665 
 
 entered in such order-book, touching any and all the matters in the 
 suits to and in which they are parties and solicitors. And notice to 
 the solicitors shall be deemed notice to the parties for whom they 
 appear and whom they represent, in all cases where personal notice on 
 the parties is not otherwise specially required. Where the solicitors 
 for all the parties in a suit reside in or near the same town or city, 
 the judges of the circuit court may, by rule, abridge the time for notice 
 of rules, orders, or other proceedings not requiring personal service on 
 the parties, in their discretion. 
 
 5. All motions and applications in the clerk's office for the issuing 
 of mesne process and final process to enforce and execute decrees for 
 filing bills, answers, pleas, demurrers, and other pleadings ; for mak- 
 ing amendments to bills and answers ; for taking bills pro confesso ; 
 for filing exceptions ; and for other proceedings in the clerk's office 
 which do not, by the rules hereinafter prescribed, require any allow- 
 ance or order of the court or of any judge thereof, shall be deemed 
 motions and applications grantable of course by the clerk of the 
 court. But the same may be suspended, or altered, or rescinded by 
 any judge of the court, upon special cause shown. 
 
 6. All motions for rules or orders and other proceedings, which 
 are not grantable of course or without notice, shall, unless a different 
 time be assigned by a judge of the court, be made on a rule-day, and 
 entered in the order-book, and shall be heard at the rule-day next 
 after that on which the motion is made. And if the adverse party, 
 or his solicitor, shall not then appear, or shall not show good cause 
 against the same, the motion may be heard by any judge of the 
 court ex parte, and granted, as if not objected to, or refused, in his 
 discretion. 
 
 Process. 
 
 7. The process of subpoena shall constitute the proper mesne 
 process in all suits in equity, in the first instance, to require the 
 defendant to appear and answer the exigency of the bill ; and, unless 
 otherwise provided in these rules, or specially ordered by the circuit 
 court, a writ of attachment, and, if the defendant cannot be found, a 
 writ of sequestration, or a writ of assistance to enforce a delivery of 
 possession, as the case may require, shall be the proper process to 
 issue for the purpose of compelling obedience to any interlocutory or 
 final order or decree of the court. 
 
 8. Final process to execute any decree may, if the decree be solely 
 for the payment of money, be by a writ of execution, in the form 
 used in the circuit court in suits at common law in actions of as- 
 sumpsit. If the decree be for the performance of any specific act, as, 
 for example, for the execution of a conveyance of land or the deliver-
 
 666 APPENDIX. 
 
 ing up of deeds or other documents, the decree shall, in all cases, pre- 
 scribe the time within which the act shall be done, of which the 
 defendant shall be bound, without further service, to take notice ; 
 and upon affidavit of the plaintiff, filed in the clerk's office, that the 
 same has not been complied with within the prescribed time, the 
 clerk shall issue a writ of attachment against the delinquent party, 
 from which, if attached thereon, he shall not be discharged, unless 
 upon a full compliance with the decree and the payment of all costs, 
 or upon a special order of the court, or of a judge thereof, upon 
 motion and affidavit, enlarging the time for the performance thereof. 
 If the delinquent party cannot be found, a writ of sequestration shall 
 issue against his estate upon the return of non est inventus, to compel 
 obedience to the decree. 
 
 9. "When any decree or order is for the delivery of possession, upon 
 proof made by affidavit of a demand and refusal to obey the decree or 
 order, the party prosecuting the same shall be entitled to a writ of 
 assistance from the clerk of the court. 
 
 10. Every person, not being a party in any cause, who has obtained 
 an order, or in whose favor an order shall have been made, shall be 
 enabled to enforce obedience to such order by the same process as if 
 he were a party to the cause ; and every person, not being a party in 
 any cause, against whom obedience to any order of the court may be 
 enforced, shall be liable to the same process for enforcing obedience 
 to such orders as if he were a party in the cause. 
 
 Service of Process. 
 
 11. No process of subpoena shall issue from the clerk's office in 
 any suit in equity until the bill is filed in the office. 
 
 12. Whenever a bill is filed, the clerk shall issue the process of 
 subpoena thereon, as of course, upon the application of the plaintiff, 
 which shall be returnable into the clerk's office the next rule-day, or 
 the next rule-day but one, at the election of the plaintiff, occurring 
 after twenty days from the time of the issuing thereof. At the bot- 
 tom of the subpoena shall be placed a memorandum, that the defend- 
 ant is to enter his appearance in the suit in the clerk's office on or 
 before the day at which the writ is returnable ; otherwise, the bill 
 may be taken pro confesso. Where there are more than one defend- 
 ant, a writ of subpoena may, at the election of the plaintiff, be sued 
 out separately for each defendant, except in the case of husband and 
 wife defendants, or a joint subpoena against all the defendants. 
 
 13. The service of all subpoenas shall be by a delivery of a copy 
 thereof by the officer serving the same to the defendant personally, 
 or by leaving a copy thereof at the dwelling-house or usual place of
 
 RULES OF PRA.CTTCE IN EQUITY. 667 
 
 abode of each, defendant, with some adult person who is a member or 
 resident in the family. 
 
 14. Whenever any subpoena shall be returned not executed as to 
 any defendant, the plaintiff shall be entitled to another subpoena, 
 toties quoties, against such defendant, if he shall require it, until due 
 service is made. 
 
 15. The service of all process, mesne and final, shall be by the 
 marshal of the district or his deputy, or by some other person 
 specially appointed by the court for that purpose, and not otherwise. 
 In the latter case, the person serving the process shall make 
 affidavit thereof. 
 
 16. Upon the return of the subpoena as served and executed upon 
 any defendant, the clerk shall enter the suit upon his docket as pend- 
 ing in the court, and shall state the time of the entry. 
 
 Appearance. 
 
 17. The appearance-day of the defendant shall be the rule-day to 
 which the subpoena is made returnable, provided he has been served 
 with the process twenty days before that day ; otherwise his appear- 
 ance-day shall be the next rule-day succeeding the rule-day when the 
 process is returnable. 
 
 The appearance of the defendant, either personally or by his solici- 
 tor, shall be entered in the order-book on the day thereof by the 
 
 clerk. 
 
 Bills taken pro confesso. 
 
 18. It shall be the duty of the defendant, unless the time shall be 
 otherwise enlarged, for cause shown, by a judge of the court, upon 
 motion for that purpose, to file his plea, demurrer, or answer to the 
 bill, in the clerk's office, on the rule-day next succeeding that of 
 entering his appearance. In default thereof, the plaintiff may, at his 
 election, enter an order (as of course) in the order-book, that the bill 
 be taken pro confesso ; and thereupon the cause shall be proceeded in 
 ex parte, and the matter of the bill may be decreed by the court at 
 any time after the expiration of thirty days from and after the entry 
 of said order, if the same can be done without an answer, and is 
 proper to be decreed ; or the plaintiff, if he requires any discovery or 
 answer to enable him to obtain a proper decree, shall be entitled to 
 process of attachment against the defendant to compel an answer, 
 and the defendant shall not when arrested upon such process, be 
 discharged therefrom, unless upon filing his answer, or otherwise 
 complying with such order as the court or a judge thereof may direct, 
 as to pleading to or fully answering the bill, within a period to be 
 fixed by the court or judge, and undertaking to speed the cause.
 
 668 APPENDIX. 
 
 19. "When the bill is taken pro confesso the court may proceed to 
 a decree at any time after the expiration of thirty days from and 
 after the entry of the order to take the bill pro confesso, and such 
 decree rendered shall be deemed absolute, unless the court shall, at 
 the same term, set aside the same, or enlarge the time for filing 
 the answer, upon cause shown, upon motion and affidavit of the 
 defendant. And no such motion shall be granted unless upon the 
 payment of the cost of the plaintiff in the suit up to that time, or 
 such part thereof as the court shall deem reasonable, and unless the 
 defendant shall undertake to file his answer within such time as the 
 court shall direct, and submit to such other terms as the court shall 
 direct, for the purpose of speeding the cause. 
 
 Frame of Bills. 
 
 20. Every bill in the introductory part thereof, shall contain the 
 names, places of abode, and citizenship of all the parties, plaintiffs 
 and defendants, by and against whom the bill is brought. The form, 
 in substance, shall be as follows : " To the judges of the circuit court 
 
 of the United States for the district of : A. B., of , and a 
 
 citizen of the State of , brings this his bill against C. D., of , 
 
 and a citizen of the State of , and E. F., of , and a citizen of 
 
 the State of . And thereupon your orator complains and says 
 
 that," &c. 
 
 21. The plaintiff, in his bill, shall be at liberty to omit, at his op- 
 tion, the part which is usually called the common confederacy clause 
 of the bill, averring a confederacy between the defendants to injure 
 or defraud the plaintiff ; also what is commonly called the charging 
 part of the "bill, setting forth the matters or excuses which the de- 
 fendant is supposed to intend to set up by way of defence to the bill ; 
 also what is commonly called the jurisdiction clause of the bill, that 
 the acts complained of are contrary to equity, and that the defend- 
 ant is without any remedy at law ; and the bill shall not be demurra- 
 ble therefor. And the plaintiff may, in the narrative or stating part 
 of his bill, state and avoid, by counter-averments, at his option, any 
 matter or thing which he supposes will be insisted upon by the de- 
 fendant by way of defence or excuse to the case made by the plaintiff 
 for relief. The prayer of the bill shall ask the special relief to which 
 the plaintiff supposes himself entitled, and also shall contain a prayer 
 for general relief ; and if an injunction, or a writ of ne exeat regno, 
 or any other special order, pending the suit, is required, it shall also 
 be specially asked for. 
 
 22. If any persons, other than those named as defendants in the 
 bill, shall appear to be necessary or proper parties thereto, the bill
 
 RULES OF PRACTICE IN EQUITY. 669 
 
 shall aver the reason why they are not made parties, by showing 
 them to be without the jurisdiction of the court, or that they cannot 
 be joined without ousting the jurisdiction of the court as to the other 
 parties. And as to persons who are without the jurisdiction and 
 may properly be made parties, the bill may pray that process may 
 issue to make them parties to the bill if they should come within the 
 jurisdiction. 
 
 23. The prayer for process of subpoena in the bill shall contain the 
 names of all the defendants named in the introductory part of the 
 bill, and if any of them are known to be infants under age, or other- 
 wise under guardianship, shall state the fact, so that the court may 
 take order thereon, as justice may require upon the return of the 
 process. If an injunction, or a writ of ne exeat regno, or any other 
 special order, pending the suit, is asked for in the prayer for relief, 
 that shall be sufficient, without repeating the same in the prayer for 
 process. 
 
 24. Every bill shall contain the signature of counsel annexed to 
 it, which shall be considered as an affirmation on his part that, upon 
 the instructions given to him and the case laid before him, there is 
 good ground for the suit, in the mauner in which it is framed. 
 
 25. In order to prevent unnecessary costs and expenses, and to 
 promote brevity, succinctness, and directness in the allegations of 
 bills and answers, the regular taxable costs for every bill and answer 
 shall in no case exceed the sum which is allowed in the State court 
 of chancery in the district, if any there be; but if there be none, 
 then it shall not exceed the sum of three dollars for every bill or 
 answer. 
 
 Scandal and Impertinence in Bills. 
 
 26. Every bill shall be expressed in as brief and succinct terms as 
 it reasonably can be, and shall contain no unnecessary recitals of 
 deeds, documents, contracts, or other instruments, in ho?c verba, or 
 any other impertinent matter, or any scandalous matter not relevant 
 to the suit. If it does, it may, on exceptions, be referred to a master, 
 by any judge of the court, for impertinence or scandal ; and if so 
 found by him, the matter shall be expunged at the expense of the 
 plaintiff, and he shall pay to the defendant all his costs in the suit 
 up to that time, unless the court or a judge thereof shall otherwise 
 order. If the mastor shall report that the bill is not scandalous or 
 impertinent, the plaintiff shall be entitled to all costs occasioned by 
 the reference. 
 
 27. No order shall be made by any judge for referring any bill, 
 answer, or pleading, or other matter or proceeding, depending before 
 the court, for scandal or impertinence, unless exceptions are taken in
 
 670 APPENDIX. 
 
 writing and signed by counsel, describing the particular passages 
 which are considered to be scandalous or impertinent ; nor unless the 
 exceptions shall be filed on or before the next rule-day after the pro- 
 cess on the bill shall be returnable, or after the answer or pleading is 
 filed. And such order when obtained, shall be considered as aban- 
 doned, unless the party obtaining the order shall, without any un- 
 necessary delay, procure the master to examine and report for the 
 same on or before the next succeeding rule-day, or the master shall 
 certify that further time is necessary for him to complete the 
 examination. 
 
 Amendment of Bills. 
 
 28. The plaintiff shall be at liberty, as a matter of course, and 
 without payment of costs, to amend his bill, in any matters whatso- 
 ever, before any copy has been taken out of the clerk's office, and in 
 any small matters afterward, such as filling blanks, correcting errors 
 of dates, misnomer of parties, misdescription of premises, clerical 
 errors, and generally in matters of form. But if he amend in a mate- 
 rial point (as he may do of course) after a copy has been so taken, 
 before any answer or plea or demurrer to the bill, he shall pay to the 
 defendant the costs occasioned thereby, and shall, without delay, 
 furnish him a fair copy thereof, free of expense, with suitable refer- 
 ences to the places where the same are to be inserted. And if the 
 amendments are numerous, he shall furnish, in like manner, to the 
 defendant, a copy of the whole bill as amended ; and if there be more 
 than one defendant, a copy shall be furnished to each defendant 
 affected thereby. 
 
 29. After an answer, or plea, or demurrer is put in, and before 
 replication, the plaintiff may, upon motion or petition, without notice, 
 obtain an order from any judge of the court to amend his bill on or 
 before the next succeeding rule-day, upon payment of costs or with- 
 out payment of costs, as the court or a judge thereof may in his dis- 
 cretion direct. But after replication filed, the plaintiff shall not be 
 permitted to withdraw it and to amend his bill, except upon a special 
 order of a judge of the . court, upon motion or petition, after due 
 notice to the other party, and upon proof by affidavit that the same is 
 not made for the purpose of vexation or delay, or that the matter of 
 the proposed amendment is material, and could not with reasonable 
 diligence have been sooner introduced into the bill, and upon the 
 plaintiff's submitting to such other terms as may be imposed by the 
 judge for speeding the cause. 
 
 30. If the plaintiff so obtaining any order to amend his bill after 
 answer, or plea, or demurrer, or after replication, shall not file his 
 amendments or amended bill, as the case may require, in the clerk's
 
 RULES OF PRACTICE IN EQUITY. 671 
 
 office on or before the next succeeding rule-day, he shall be considered 
 to have abandoned the same, and the cause shall proceed as if no 
 application for any amendment had been made. 
 
 Demurrers and Pleas. 
 
 31. No demurrer or plea shall be allowed to be filed to any bill, 
 unless upon a certificate of counsel, that in his opinion it is well 
 founded in point of law, and supported by the affidavit of the defend- 
 ant ; that it is not interposed for delay ; and, if a plea, that it is true 
 in point of fact. 
 
 32. The defendant may at any time before the bill is taken for 
 confessed, or afterward with the leave of the court, demur or plead 
 to the whole bill, or to part of it, and he may demur to part, plead to 
 part, and answer as to the residue ; but in every case in which the bill 
 specially charges fraud or combination, a plea to such part must be 
 accompanied with an answer fortifying the plea and explicitly deny- 
 ing the fraud and combination, and the facts on which the charge is 
 founded. 
 
 33. The plaintiff may set down the demurrer or plea to be argued, 
 or he may take issue on the plea. If, upon an issue, the facts stated 
 in the plea be determined for the defendant, they shall avail him as 
 far as in law and equity they ought to avail him. 
 
 34. If, upon the hearing, any demurrer or plea is overruled, the 
 plaintiff shall be entitled to his costs in the cause up to that period, 
 unless the court shall be satisfied that the defendant has good ground, 
 in point of law or fact, to interpose the same, and it was not inter- 
 posed vexatiously or for delay. And, upon the overruling of any 
 plea or demurrer, the defendant shall be assigned to answer the bill, 
 or so much thereof as is covered by the plea or demurrer, the next 
 succeeding rule-day, or at such other period as, consistently with jus- 
 tice and the rights of the defendant, the same can, in the judgment of 
 the court, be reasonably done ; in default whereof, the bill shall be 
 taken against him pro confesso, and the matter thereof proceeded in 
 and decreed accordingly. 
 
 35. If, upon the hearing, any demurrer or plea shall be allowed, 
 the defendant shall be entitled to his costs. But the court may, in 
 its discretion, upon motion of the plaintiff, allow him to amend his 
 bill, upon such terms as it shall deem reasonable. 
 
 36. No demurrer or plea shall be held bad and overruled upon 
 argument, only because such demurrer or plea shall not cover so much 
 of the bill as it might by law have extended to. 
 
 37. No demurrer or plea shall be held bad and overruled upon 
 argument, only because the answer of the defendant may extend to
 
 672 APPENDIX. 
 
 some part of the same matter as may be covered by such demurrer or 
 plea. 
 
 38. If the plaintiff shall not reply to any plea, or set down any 
 plea or demurrer for argument on the rule-day when the same is filed, 
 or on the next succeeding rule-day, he shall be deemed to admit the 
 truth and sufficiency thereof, and his bill shall be dismissed as of 
 course, unless a judge of the court shall allow him further time for 
 that purpose. 
 
 Answers and Discovery. 
 
 39. The rule, that if a defendant submits to answer he shall 
 answer fully to all the matters of the bill, shall no longer apply in 
 cases where he might by plea protect himself from such answer and 
 discovery. And the defendant shall be entitled in all cases by 
 answer to insist upon all matters of defence (not being matters of 
 abatement, or to the character of the parties, or matters of form) in 
 bar of or to the merits of the bill, of which he may be entitled to 
 avail himself by a plea in bar ; and in such answer he shall not b.e 
 compellable to answer any other matters than he would be compel- 
 lable to answer and discover upon filing a plea in bar and an answer 
 in support of such plea, touching the matters set forth in the bill, 
 to avoid or repel the bar or defence. Thus, for example, a bona fide 
 purchaser, for a valuable consideration without notice, may set up 
 that defence by way of answer instead of plea, and shall be en- 
 titled to the same protection, and shall not be compellable to make 
 any further answer or discovery of his title than he would be in any 
 answer in support of such plea. 
 
 40. A defendant shall not be bound to answer any statement or 
 charge in the bill, unless specially and particularly interrogated 
 thereto ; and a defendant shall not be bound to answer any interroga- 
 tory in the bill, except those interrogatories which such defendant is 
 required to answer ; and where a defendant shall answer any state- 
 ment or charge in the bill to which he is not interrogated, only by 
 stating his ignorance of the matter so stated or charged, such answer 
 shall be deemed impertinent. 
 
 December Term, 1850. 
 
 Ordered, That the fortieth rule, heretofore adopted and promul- 
 gated by this court as one of the rules of practice in suits in equity in 
 the circuit courts, be, and the same is hereby, repealed and annulled. 
 And it shall not hereafter be necessary to interrogate a defendant 
 specially and particularly upon any statement in the bill, unless the 
 complainant desires to do so, to obtain a discovery.
 
 RULES OF PRACTICE IN EQUITY. 673 
 
 41. The interrogatories contained in the interrogating part of the 
 bill shall be divided as conveniently as may be from each other, and 
 numbered consecutively 1, 2, 3, &c. ; and the interrogatories which 
 each defendant is required to answer shall be specified in a note at 
 the foot of the bill, in the form or to the effect following, that is to 
 say. -The defendant (A. B.) is required to answer the interrogatories 
 numbered respectively 1, 2, 3," &c. ; and the office copy of the bill 
 taken by each defendant shall not contain any interrogatories except 
 those which such defendant is so required to answer, unless such 
 defendant shall require to be furnished with a copy of the whole 
 bill. 
 
 December Term, 1871. 
 
 Amendment to 41st Equity Rule. 
 
 If the complainant, in his bill, shall waive an answer under oath, 
 or shall only require an answer under oath with regard to certain 
 specified interrogatories, the answer of the defendant, though under 
 oath, except such part thereof as shall be directly responsive to such 
 interrogatories, shall not be evidence in his favor, unless the cause be 
 set down for hearing on bill and answer only ; but may nevertheless 
 be used as an affidavit, with the same effect as heretofore, on a motion 
 to grant or dissolve an injunction, or on any other incidental motion 
 in the cause; but this shall not prevent a defendant from becoming 
 a witness in his own behalf under section 3 of the act of Congress of 
 July 2, 1864. 
 
 42. The note at the foot of the bill, specifying the interrogatories 
 which each defendant is required to answer, shall be considered and 
 treated as part of the bill, and the addition of any such note to the 
 bill, or any alteration in or addition to such note, after the bill is 
 filed, shall be considered and treated as an amendment of the bill. 
 
 43. Instead of the words of the bill now in use, preceding the 
 interrogating part thereof, and beginning with the words " To the 
 end therefore," there shall hereafter be used words in the form or to 
 the effect following : " To the end, therefore, that the said defendants 
 may, if they can, show why your orator should not have the relief 
 hereby prayed, and may, upon their several and respective corporal 
 oaths, and according to the best and utmost of their s sveral and re- 
 spective knowledge, remembrance, information, and belief, full, true, 
 direct, and perfect answers make to such of the several interroga- 
 tories hereinafter numbered and set forth, as by the note hereunder 
 written they are respectively required to answer ; that is to say — 
 
 " 1. Whether, &c. 
 "2. Whether, &c." 
 
 43
 
 C74 APPENDIX. 
 
 44. A defendant shall be at liberty, by answer, to decline answer- 
 ing any interrogatory, or part of an interrogatory, from answering 
 which he might have protected himself by demurrer ; and he shall be 
 at liberty so to decline, notwithstanding he shall answer other parts 
 of the bill from which he might have protected himself by demurrer. 
 
 45. No special replication to any answer shall be filed. But if any 
 matter alleged in the answer shall make it necessary for the plaintiff 
 to amend his bill, he may have leave to amend the same with or with- 
 out the payment of costs, as the court, or a judge thereof, may in his 
 discretion direct. 
 
 4C. In every case where an amendment shall be made after answer 
 filed, the defendant shall put in a new or supplemental answer on or 
 before the next succeeding rule-day after that on which the amend- 
 ment or amended bill is filed, unless the time is enlarged or otherwise 
 ordered by a judge of the court ; and upon his default, the like pro- 
 ceedings may be had as in cases of an omission to put in an answer. 
 
 Parties to Bills. 
 
 47. In all cases where it shall appear to the court that persons who 
 might otherwise be deemed necessary or proper parties to the suit, 
 cannot be made parties by reason of their being out of the jurisdic- 
 tion of the court, or incapable otherwise of being made parties, or 
 because their joinder would ousb the jurisdiction of the court as to 
 the parties before the court, the court may in their discretion proceed 
 in the cause without making such persons parties ; and in such cases 
 the decree shall be without prejudice to the rights of the absent 
 parties. 
 
 48. Where the parties on either side are very numerous, and can- 
 not, without manifest inconvenience and oppressive delays in the 
 suit, be all brought before it, the court in its discretion may dispense 
 with making all of them parties, and may proceed in the suit, having 
 sufficient parties before it to represent all the adverse interests of the 
 plaintiffs and the defendants in the suit properly before it. But, in 
 such cases, the decree shall be without prejudice to the rights and 
 claims of all the absent parties. 
 
 49. In all suits concerning real estate which is vested in trustees 
 by devise, and such trustees are competent to sell and give discharges 
 for the proceeds of the sale, and for the rents and profits of the 
 estate, such trustees shall represent the persons beneficially inter- 
 ested in the estate, or the proceeds, or the rents and profits, in the 
 same manner and to the same extent as the executors or administra- 
 tors in suits concerning personal estate represent the persons bene- 
 ficially interested in such personal estate ; and in such cases it shall
 
 EULES OF PRACTICE IN EQUITY. 675 
 
 not be necessary to make the persons beneficially interested in such 
 real estate, or rents and profits, parties to the suit ; but the court 
 may, upon consideration of the matter on the hearing, if it shall so 
 think fit, order such persons to be made parties. 
 
 50. In suits to execute the trusts of a will, it shall not be necessary 
 to make the heir at law a party ; but the plaintiffs shall be at liberty 
 to make the heir at law a party where he desires to have the will 
 established against him. 
 
 51. In all cases in which the plaintiff has a joint and several 
 demand against several persons, either as principals or sureties, it 
 shall not be necessary to bring before the court as parties to a suit 
 concerning such demand, all the persons liable thereto ; but the plain- 
 tiff may proceed against one or more of the persons severally liable. 
 
 52. Where the defendant shall, by his answer, suggest that the 
 bill is defective for want of parties, the plaintiff shall be at liberty, 
 within fourteen days after answer filed, to set down the cause for 
 argument upon that objection only ; and the purpose for which the 
 same is so set down shall be notified by an entry, to be made in the 
 clerk's order-book, in the form or to the effect following, (that is to 
 say : ) " Set down upon the defendant's objection for want of par- 
 ties." And where the plaintiff shall not so set down his cause, but 
 shall proceed therewith to a hearing, notwithstanding an objection 
 for want of parties taken by the answer, he shall not, at the hearing 
 of the cause, if the defendant's objection shall then be allowed, be 
 entitled as of course to an order for liberty to amend his bill by add- 
 ing parties. But the court, if it thinks fit, shall be at liberty to dis- 
 miss the bill. 
 
 53. If a defendant shall, at the hearing of a cause, object that 
 a suit is defective for want of parties not having by plea or answer 
 taken the objection, and therein specified by name or description of 
 parties to whom the objection applies, the court (if it shall think fit) 
 shall be at liberty to make a decree saving the rights of the absent 
 parties. 
 
 54. Where no account, payment, conveyance, or other direct relief 
 is sought against a party to a suit, not being an infant, the party, 
 upon service of the subpoena upon him, need not appear and answer 
 the bill, unless the plaintiff specially requires him so to do by the 
 prayer of his bill ; but he may appear and answer at his option ; and 
 if he does not appear and answer he shall be bound by all the pro- 
 ceedings in the cause. If the plaintiff shall require him to appear 
 and answer he shall be entitled to the costs of all the proceedings 
 against him, unless the court shall otherwise direct.
 
 676 APPENDIX. 
 
 Injunctions. 
 
 55. Whenever an injunction is asked for by the bill to stay pro- 
 ceedings at law, if the defendant do not enter his appearance, and 
 plead, demur, or answer to the same within the time prescribed there- 
 for by these rules, the plaintiff shall be entitled as of course, upon 
 motion, without notice, to such injunction. But special injunctions 
 shall be grantable only upon due notice to the other party by the 
 court in term, or by a judge thereof in vacation, after a hearing, 
 which may be ex parte, if the adverse party does not appear at the 
 time and place ordered. In every case where an injunction — either 
 the common injunction or a special injunction — is awarded in vaca- 
 tion, it shall, unless previously dissolved by the judge granting the 
 same, continue until the next term of the court, or until it is dissolved 
 by some other order of the court. 
 
 Bills of Revivor and Supplemental Bills. 
 
 56. "Whenever a suit in equity shall become abated by the death of 
 either party, or by any other event, the same may be revived by a 
 bill of revivor, or a bill in the nature of a bill of revivor, as the cir- 
 cumstances of the case may require, filed by the proper parties, 
 entitled to revive the same, which bill may be filed in the clerk's 
 office at any time ; and, upon suggestion of the facts, the proper 
 process of subpoena shall, as of course, be issued by the clerk, requir- 
 ing the proper representatives of the other party to appear and show 
 cause, if any they have, why the cause should not be revived. And 
 if no cause shall be shown at the next rule-day which shall occur 
 after fourteen days from the time of the service of the same process, 
 the suit shall stand revived, as of course. 
 
 57. Whenever any suit in equity shall become defective from any 
 event happening after the filing of the bill (as, for example, by 
 change of interest in the parties), or for any other reason a supple- 
 mental bill, or a bill' in the nature of a supplemental bill, may be 
 necessary to be filed in the cause, leave to file the same may be 
 granted by any judge of the court on any rule-day, upon proper cause 
 shown, and due notice to the other party. And if leave is granted to 
 file such supplemental bill, the defendant shall demur, plead, or 
 answer thereto, on the next succeeding rule-day after the supplemen- 
 tal bill is filed in the clerk's office, unless some other time shall be 
 assigned by a judge of the court. 
 
 58. It shall not be necessary in any bill of revivor or supplemental 
 bill to set forth any of the statements in the original suit, unless the 
 special circumstances of the case may require it.
 
 RULES OF PRACTICE IN EQUITY. 677 
 
 Verification of Answers. 
 [As amended in October Term 1888, 129 U. S. 701.] 
 
 59. Every defendant may swear to his answer before any justice or 
 
 judge of any court of the United States, or before any commissioner 
 
 appointed by any circuit court to take testimony or depositions, or 
 
 before any master in chancery appointed by any circuit court, or 
 
 before any judge of any court of a State or Territory, or before any 
 
 notary public. 
 
 Amendment of Answers. 
 
 60. After an answer is put in, it may be amended, as of course, in 
 any matter of form, or by filling up a blank, or correcting a date, or 
 reference to a document, or other small matter, and be resworn, at any 
 time before a replication is put in, or the cause is set down for a 
 hearing upon bill and answer. But after replication, or such setting 
 down for a hearing, it shall not be amended in any material matters, 
 as by adding new facts or defenses, or qualifying or altering the origi- 
 nal statements, except by special leave of the court, or of a judge 
 thereof, upon motion and cause shown, after due notice to the adverse 
 party, supported, if required, by affidavit; and in every case where 
 leave is so granted, the court or the judge granting the same may, in 
 his discretion, require that the same be separately engrossed, and 
 added as a distinct amendment to the original answer, so as to be 
 distinguishable therefrom. 
 
 Exceptions to Answers. 
 
 61. After an answer is filed on any rule-day, the plaintiff shall be 
 allowed until the next succeeding rule-day to file in the clerk's office 
 exceptions thereto for insufficiency, and no longer, unless a longer time 
 shall be allowed for the purpose, upon cause shown to the court, or a 
 judge thereof ; and, if no exception shall be filed thereto within that 
 period, the answer shall be deemed and taken to be sufficient. 
 
 62. When the same solicitor is employed for two or more defend- 
 ants, and separate answers shall be filed, or other proceedings had, by 
 two or more of the defendants separately, costs shall not be allowed 
 for such separate answers, or other proceedings, unless a master, upon 
 reference to him, shall certify that such separate answers and other 
 proceedings were necessary or proper, and ought not to have been 
 joined together. 
 
 63. Where exceptions shall be filed to the answer for insufficiency, 
 within the period prescribed by these rules, if the defendant shall not 
 submit to the same and file an amended answer on the next succeed- 
 ing rule-day, the plaintiff shall forthwith set them down for a hearing
 
 G78 APPENDIX. 
 
 on the next succeeding rule-day thereafter, before a judge of the 
 court, and shall enter, as of course, in the order-book, an order for 
 that purpose ; and if he shall not so set down the same for a hearing, 
 the exceptions shall be deemed abandoned, and the answer shall be 
 deemed sufficient ; provided, however, that the court, or any judge 
 thereof, may, for good cause shown, enlarge the time for filing ex- 
 ceptions, or for answering the same, in his discretion, upon such terms 
 as he may deem reasonable. 
 
 64. If, at the hearing, the exceptions shall be allowed, the defend- 
 ant shall be bound to put in a full and complete answer thereto on 
 the next succeeding rule-day; otherwise the plaintiff shall, as of 
 course, be entitled to take the bill, so far as the matter of such excep- 
 tions is concerned, as confessed, or, at his election, he may have a 
 writ of attachment to compel the defendant to make a better answer 
 to the matter of the exceptions ; and the defendant, when he is in 
 custody upon such writ, shall not be discharged therefrom but by an 
 order of the court, or of a judge thereof, upon his putting in such 
 answer, and complying with such other terms as the court or judge 
 may direct. 
 
 65. If, upon argument, the plaintiff's exceptions to the answer shall 
 be overruled, or the answer shall be adjudged insufficient, the prevail- 
 ing party shall be entitled to all the costs occasioned thereby, unless 
 otherwise directed by the court, or the judge thereof, at the hearing 
 upon the exceptions. 
 
 Replication and Issue. 
 
 66. Whenever the answer of the defendant shall not be excepted to, 
 or shall be adjudged or deemed sufficient, the plaintiff shall file the 
 general replication thereto on or before the next succeeding rule-day 
 thereafter ; and in all cases where the general replication is filed, the 
 cause shall be deemed, to all intents and purposes, at issue, without 
 any rejoinder or other pleading on either side. If the plaintiff shall 
 omit or refuse to file such replication within the prescribed period, the 
 defendant shall be entitled to an order, as of course, for a dismissal 
 of the suit ; and the suit shall thereupon stand dismissed, unless the 
 court, or a judge thereof, shall, upon motion, for cause shown, 
 allow a replication to be filed nunc pro tunc, the plaintiff sub- 
 mitting to speed the cause, and to such other terms as may be 
 directed. 
 
 Testimony and Depositions. 
 
 67. After the cause is at issue, commissions to take testimony may 
 be taken out in vacation as well as in term, jointly by both parties, 
 or severally by either party, upon interrogatories filed by the party
 
 RULES OF PRACTICE IN EQUITY. 679 
 
 taking out the same in the clerk's office, ten days' notice thereof being 
 given to the adverse party to file cross-interrogatories before the 
 issuing of the commission ; and if no cross-interrogatories are filed at 
 the expiration of the time, the commission may issue ex parte. In all 
 cases, the commissioner or commissioners shall be named by the 
 court, or by a judge thereof. If the parties shall so agree, the testi- 
 mony may be taken upon oral interrogatories by the parties or their 
 agents, without filing any written interrogatories. 
 
 December Teem, 1854. 
 
 Ordered, That the sixty-seventh rule governing equity practice be 
 so amended as to allow the presiding judge of any court exercising 
 jurisdiction, either in term time or in vacation, to vest in the clerk of 
 said court general power to name commissioners to take testimony in 
 like manner that the court or judge thereof can now do by the said 
 sixty -seventh rule. 
 
 December Term, 1861. 
 
 Ordered, That the last paragraph in the sixty-seventh rule in equity 
 be repealed, and the rule be amended as follows : Either party may 
 give notice to the other that he desires the evidence to be adduced in 
 the cause to be taken orally, and thereupon all the witnesses to be 
 examined shall be examined before one of the examiners of the court, 
 or before an examiner to be specially appointed by the court, the 
 examiner to be furnished with a copy of the bill and answer, if any ; 
 and such examination shall take place in the presence of the parties 
 or their agents, by their counsel or solicitors, and the witnesses shall 
 be subject to cross-examination and re-examination, and which shall 
 be conducted as near as may be in the mode now used in common-law 
 courts. The depositions taken upon such oral examinations shall be 
 taken down in writing by the examiner in the form of narrative, un- 
 less he determines the examination shall be by question and answer in 
 special instances ; and, when completed, shall be read over to the wit- 
 ness and signed by him in the presence of the parties or counsel, or 
 such of them as may attend ; provided, if the witness shall refuse to 
 sign the said deposition, then the examiner shall sign the same ; and 
 the examiner may, upon all examinations, state any special matters 
 to the court as he shall think fit ; and any question or questions which 
 may be objected to shall be noted by the examiner upon the deposi- 
 tion, but he shall not have power to decide on the competency, mate- 
 riality, or relevancy of the questions ; and the court shall have power
 
 GSO 
 
 APPENDIX. 
 
 to deal with the costs of incompetent, immaterial, or irrelevant depo- 
 sitions, or parts of them, as may be just. 
 
 In case of refusal of witnesses to attend, to be sworn, or to answer 
 any question put by the examiner, or by counsel or solicitor, the same 
 practice shall be adopted as is now practised with respect to witnesses 
 to be produced on examination before an examiner of said court on 
 written interrogatories. 
 
 ^Notice shall be given by the respective counsel or solicitors, to the 
 opposite counsel or solicitors, or parties, of the time and place of the 
 examination, for such reasonable time as the examiner may fix by 
 order in each cause. 
 
 When the examination of witnesses before the examiner is con- 
 cluded, the original deposition, authenticated by the signature of the 
 examiner, shall be transmitted by him to the clerk of the court, to be 
 there filed of record, in the same mode as prescribed in the thirtieth 
 section of act of Congress, September 24, 1789. 
 
 Testimony may be taken on commission in the usual way, by written 
 interrogatories and cross-interrogatories, on motion to the court in 
 term time, or to a judge in vacation, for special reasons satisfactory 
 to the court or judge. 
 
 December Term, 1869. 
 
 Amendment to 67th Rule. 
 Where the evidence to be adduced in a cause is to be taken orally, 
 as provided in the order passed at the December term, 1861, amending 
 the 67th General Rule, the court may, on motion of either party, as- 
 sign a time within which the complainant shall take his evidence in 
 support of the bill, and a time thereafter within which the defendant 
 shall take his evidence in defense, and a time thereafter within which 
 the complainant shall take his evidence in reply ; and no further evi- 
 dence shall be taken in the cause, unless by agreement of the parties, 
 or by leave of court first obtained, on motion, for cause shown. 
 
 68. Testimony may also be taken in the cause, after it is at issue, 
 by deposition, according to the act of Congress. But in such case, 
 if no notice is given to the adverse party of the time and place of 
 taking the deposition, he shall, upon motion and affidavit of the fact, 
 be entitled to a cross-examination of the witness, either under a com- 
 mission or by a new deposition taken under the acts of Congress, if a 
 court or a judge thereof shall, under all the circumstances, deem it 
 reasonable. 
 
 69. Three months, and no more, shall be allowed for the taking of 
 testimony after the cause is at issue, unless the court, or a judge
 
 RULES OF PRACTICE IX EQUITY. 681 
 
 thereof, shall, upon special cause shown by either party, enlarge the 
 time ; and no testimony taken after such period shall be allowed to 
 be read in evidence at the hearing. Immediately upon the return of 
 the commissions and depositions containing the testimony into the 
 clerk's office, publication thereof may be ordered in the clerk's office, 
 by any judge of the court, upon due notice to the parties, or it may 
 be enlarged, as he may deem reasonable under all the circumstances ; 
 but, by consent of the parties, publication of the testimony may at 
 any time pass into the clerk's office, such consent being in writing, 
 and a copy thereof entered in the order-books, or indorsed upon the 
 deposition or testimony. 
 
 70. After any bill filed and before the defendant hath answered 
 the same, upon affidavit made that any of the plaintiff's witnesses are 
 aged and infirm, or going out of the country, or that any one of them 
 is a single witness to a material fact, the clerk of the court shall, as 
 of course, upon the application of the plaintiff, issue a commission to 
 such commissioner or commissioners as a judge of the court may 
 direct, to take the examination of such witness or witnesses de bene 
 esse, upon giving due notice to the adverse party of the time and place 
 of taking his testimony. 
 
 71. The last interrogatory in the written interrogatories to take 
 testimony now commonly in use shall in the future be altered, and 
 stated in substance thus : " Do you know, or can you set forth, any 
 other matter or thing which may be a benefit or advantage to the 
 parties at issue in this cause, or either of them, or that may be mate- 
 rial to the subject of this your examination, or the matters in question 
 in this cause? If yea, set forth the same fully and at large in your 
 answer." 
 
 Cross-Bills. 
 
 72. Where a defendant in equity files a cross-bill for discovery 
 only against the plaintiff in the original bill, the defendant to the 
 original bill shall first answer thereto before the original plaintiff 
 shall be compellable to answer the cross-bill. The answer of the 
 original plaintiff to such cross-bill may be read and used by the party 
 filing the cross-bill at the hearing, in the same manner and under the 
 same restrictions as the answer praying relief may now be read and 
 used. 
 
 Reference to and Proceedings before Masters. 
 
 73. Every decree for an account of the personal estate of a testator 
 or intestate shall contain a direction to the master to whom it is 
 referred to take the same to inquire and state to the court what parts, 
 if any, of such personal estate are outstanding or undisposed of, 
 unless the court shall otherwise direct.
 
 G82 APPENDIX. 
 
 74. Whenever any reference of any matter is made to a master to 
 examine and report thereon, the party at whose instance or for whose 
 benefit the reference is made shall cause the same to be presented to 
 the master for a hearing on or before the next rule-day succeeding 
 the time when the reference was made ; if he shall omit to do so, the 
 adverse party shall be at liberty forthwith to cause proceedings to be 
 had before the master, at the costs of the party procuring the 
 reference. 
 
 75. Upon every such reference, it shall be the duty of the master, 
 as soon as he reasonably can after the same is brought before him, to 
 assign a time and place for proceedings in the same, and to give due 
 notice thereof to each of the parties, or their solicitors ; and if either 
 party shall fail to appear at the time and place appointed, the master 
 shall be at liberty to proceed ex parte, or, in his discretion, to adjourn 
 the examination and proceedings to a future day, giving notice to the 
 absent party or his solicitor of such adjournment ; and it shall be the 
 duty of the master to proceed with all reasonable diligence in every 
 such reference, and with the least practicable delay, and either party 
 shall be at liberty to apply to the court, or a judge thereof, for an 
 order to the master to speed the proceedings, and to make his report, 
 and to certify to the court or judge the reasons for any delay. 
 
 76. In the reports made by the master to the court, no part of any 
 state of facts, charge, affidavit, deposition, examination, or answer 
 brought in or used before them shall be stated or recited. But such 
 state of facts, charge, affidavit, deposition, examination, or answer 
 shall be identified, specified, and referred to, so as to inform the 
 court what state of facts, charge, affidavit, deposition, examination, or 
 answer were so brought in or used. 
 
 77. The master shall regulate all the proceedings in every hearing 
 before him, upon every such reference ; and he shall have full au- 
 thority to examine the parties in the cause, upon oath, touching all 
 matters contained in the reference ; and also to require the production 
 of all books, papers, writings, vouchers, and other documents appli- 
 cable thereto ; and also to examine on oath, viva voce, all witnesses 
 produced by the parties before him, and to order the examination of 
 other witnesses to be taken, under a commission to be issued upon 
 his certificate from the clerk's office or by deposition, according to 
 the acts of Congress, or otherwise, as hereinafter provided ; and also 
 to direct the mode in which the matters requiring evidence shall be 
 proved before him ; and generally to do all other acts, and direct all 
 other inquiries and proceedings in the matters before him, which he 
 may deem necessary and proper to the justice and merits thereof and 
 the rights of the parties.
 
 RULES OF PEACTICE IN EQUITY. 683 
 
 78. Witnesses who live within the district may, upon due notice to 
 the opposite party, be summoned to appear before the commissioner 
 appointed to take testimony, or before a master or examiner appointed 
 in any cause, by subpoena in the usual form, which may be issued by 
 the clerk in blank, and filled up by the party praying the same, or 
 by the commissioner, master, or examiner, requiring the attendance of 
 the witnesses at the time and place specified, who shall be allowed 
 for attendance the same compensation as for attendance in court ; 
 and if any witness shall refuse to appear or give evidence, it shall be 
 deemed a contempt of the court, which being certified to the clerk's 
 office by the commissioner, master, or examiner, an attachment may 
 issue thereupon by order of the court or of any judge thereof, in the 
 same manner as if the contempt were for not attending, or for refus- 
 ing to give testimony in the court. But nothing herein contained 
 shall prevent the examination of witnesses viva voce when produced 
 in open court, if the court shall, in its discretion, deem it advisable. 
 
 79. All parties accounting before a master shall bring in their re- 
 spective accounts in the form of debtor and creditor ; and any of the 
 other parties who shall not be satisfied with the accounts so brought 
 in shall be at liberty to examine the accounting party viva voce, or 
 upon interrogatories, in the master's office, or by deposition, as the 
 master shall direct. 
 
 80. All affidavits, depositions, and documents which have been 
 previously made, read, or used in the court, upon any proceeding in 
 any cause or matter, may be used before the master. 
 
 81. The master shall be at liberty to examine any creditor or other 
 person coining in to claim before him, either upon written interroga- 
 tories or viva voce, or in both modes, as the nature of the case may 
 appear to him to require. The evidence upon such examinations 
 shall be taken down by the master, or by some other person by his 
 order and in his presence, if either party requires it, in order that the 
 same may be used by the court, if necessary. 
 
 82. The circuit courts may appoint standing masters in chancery 
 in their respective districts, both the judges concurring in the ap- 
 pointment ; and they may also appoint a master pro hac vice in any 
 particular case. The compensation to be allowed to every master in 
 chancery for his services in any particular case shall be fixed by the 
 circuit court, in its discretion, having regard to all the circumstances 
 thereof, and the compensation shall be charged upon and borne by 
 such of the parties in the cause as the court shall direct. The master 
 shall not retain his report as security for his compensation ; but, 
 when the compensation is allowed by the court, he shall be entitled 
 to an attachment for the amount against the party who is ordered to
 
 G84 APPENDIX. 
 
 pay the same, if, upon notice thereof, he does not pay it within the 
 time prescribed by the court. 
 
 Exceptions to Report of Master. 
 
 83. The master, as soon as his report is ready, shall return the same 
 into the clerk's office, and the day of the return shall be entered by 
 the clerk in the order-book. The parties shall have one month from 
 the time of filing the report to file exceptions thereto ; and, if no 
 exceptions are within that period filed by either party, the report 
 shall stand confirmed on the next rule-day after the month is expired. 
 If exceptions are filed, they shall stand for hearing before the court, 
 if the court is then in session ; or, if not, then at the next sitting of 
 the court which shall be held thereafter, by adjournment or other- 
 wise. 
 
 84. And, in order to prevent exceptions to reports from being filed 
 for frivolous causes, or for mere delay, the party whose exceptions 
 are overruled shall, for every exception overruled, pay costs to the 
 other party, and for every exception allowed shall be entitled to 
 costs ; the cost to be fixed in each case by the court, by a standing 
 rule of the circuit court. 
 
 Decrees and Orders. 
 
 85. Clerical mistakes in decrees or decretal orders, or errors aris- 
 ing from any accidental slip or omission, may, at any time before an 
 actual enrolment thereof, be corrected by order of the court or a judge 
 thereof, upon petition, without the form or expense of a rehearing. 
 
 86. In drawing up decrees and orders, neither the bill, nor 
 answer, nor other pleadings, nor any part thereof, nor the report 
 of any master, nor any other prior proceeding, shall be recited or 
 stated in the decree or order ; but the decree and order shall begin, 
 in substance, as follows : " This cause came on to be heard (or to be 
 further heard, as the case may be) at this term, and was argued by 
 counsel ; and thereupon, upon consideration thereof, it was ordered, 
 adjudged, and decreed as follows, viz : " [Here insert the decree or 
 order]. 
 
 Guardians ad Litem. 
 
 87. Guardians ad litem to defend a suit may be appointed by the 
 court, or by any judge thereof, for infants or other persons who are 
 under guardianship, or otherwise incapable to sue for themselves. 
 All infants and other persons so incapable may sue by their guardians, 
 if any, or by their prochein ami ; subject, however, to such orders as 
 the court may direct for the protection of infants and other persons.
 
 RULES OF PRACTICE IN EQUITY. 6S5 
 
 Rehearings. 
 
 88. Every petition for a rehearing shall contain the special matter or 
 cause on which such rehearing is applied for, shall be signed by coun- 
 sel, and the facts therein stated, if not apparent on the record, shall 
 be verified by the oath of the party or by some other person. No 
 rehearing shall be granted after the term at which the final decree of 
 the court shall have beeli entered and recorded, if an appeal lies to 
 the Supreme Court. But if no appeal lies, the petition may be 
 admitted at any time before the end of the next term of the court, in 
 the discretion of the court. 
 
 General Provisions. 
 
 89. The circuit courts (both judges concurring therein) may make 
 any other and further rules and regulations for the practice, proceed- 
 ings, and process, mesne and final, in their respective districts, not 
 inconsistent with the rules hereby prescribed, in their discretion, and 
 from time to time alter and amend the same. 
 
 90. In all cases where the rules prescribed by this court or by the 
 circuit court do not apply, the practice of the circuit court shall be 
 regulated by the present practice of the high court of chancery in 
 England, so far as the same may reasonably be applied consistently 
 with the local circumstances and local conveniences of the district 
 where the court is held, not as positive rules, but as furnishing just 
 analogies to regulate the practice. 
 
 91. Whenever, under these rules, an oath is or may be required to 
 be taken, the party may, if conscientiously scrupulous of taking an 
 oath, in lieu thereof make solemn affirmation to the truth of the facts 
 stated by him. 
 
 December Term, 1863. 
 
 92. Ordered, That in suits in equity for the foreclosure of mort- 
 gages in the circuit courts of the United States, or in any court of 
 the Territories having jurisdiction of the same, a decree may be ren- 
 dered for any balance that may be found due to the complainant over 
 and above the proceeds of the sale or sales, and execution may issue 
 for the collection of the same, as is provided in the eighth rule of 
 this court regulating the equity practice, where the decree is solely 
 for the payment of money.
 
 C86 APPENDIX. 
 
 October Term, 1878. 
 
 Injunctions. 
 
 93. When an appeal from a final decree, in an equity suit, granting 
 or dissolving an injunction, is allowed by a justice or judge who took 
 part in the decision of the cause, he may, in his discretion, at the 
 time of such allowance, make an order suspending or modifying the 
 injunction during the pendency of the appeal, upon such terms as to 
 bond or otherwise as he may consider proper for the security of the 
 rights of the opposite party. 
 
 October Term, 1881. 
 
 Stockholders' Bills. 
 
 94. Every bill brought by one or more stockholders in a corporation 
 against the corporation and other parties, founded on rights which may 
 properly be asserted by the corporation, must be verified by oath, and 
 must contain an allegation that the plaintiff was a shareholder at the 
 time of the transaction of which he complains, or that his share had 
 devolved on him since by operation of law, and that the suit is not a 
 collusive one to confer on a court of the United States jurisdiction of 
 a case of which it would not otherwise have cognizance. It must also 
 set forth with particularity the efforts of the plaintiff to secure such 
 action as he desires on the part of the managing Directors or Trus- 
 tees, and, if necessary, of the shareholders, and the causes of his 
 failure to obtain such action. 

 
 KULES OF THE SUPREME COURT OF THE UNITED STATES. 637 
 
 IV. 
 
 RULES OF THE SUPREME COURT OF THE UNITED STATES. 
 
 1. Clerk. 
 
 1. The clerk of this court shall reside and keep the office at the 
 seat of the National Government, and he shall not practise, either as 
 attorney or counsellor, in this court, or in any other court, while he 
 shall continue to be clerk of this court. 
 
 2. The clerk shall not permit any original record or paper to be 
 taken from the court room, or from the office, without an order from 
 the court, except as provided by Rule 10. 
 
 2. Attorneys and Counsellors. 
 
 1. It shall be requisite to the admission of attorneys or counsellors 
 to practise in this court, that they shall have been such for three years 
 past in the supreme courts of the States to which they respectively 
 belong, and that their private and professional character shall appear 
 to be fair. 
 
 2. They shall respectively take and subscribe the following oath or 
 affirmation, viz. : 
 
 I, , do solemnly swear [or affirm] that I will demean my- 
 self, as an attorney and counsellor of this court, uprightly, and accord- 
 ing to law ; and that I will support the Constitution of the United 
 States. 
 
 3. Practice. 
 This court considers the former practice of the courts of king's 
 bench and of chancery, in England, as affording outlines for the 
 practice of this court ; and will, from time to time, make such 
 alterations therein as circumstances may render necessary. 
 
 4. Bill of Exceptions. 
 The judges of the circuit and district courts shall not allow any 
 bill of exceptions which shall contain the charge of the court at large 
 to the jury in trials at common law, upon any general exception to
 
 688 APPENDIX. 
 
 the whole of such charge. But the party excepting shall be required 
 to state distinctly the several matters of law in such charge to which 
 he excepts ; and those matters of law, and those only, shall be inserted 
 in the bill of exceptions and allowed by the court. 
 
 5. Process. 
 
 1. All process of this court shall be in the name of the President of 
 the United States. 
 
 2. When process at common law or in equity shall issue against a 
 State, the same shall be served on the governor, or chief executive 
 magistrate, and attorney-general of such State. 
 
 3. Process of subpoena, issuing out of this court, in any suit in 
 equity, shall be served on the defendant sixty days before the return 
 day of the said process ; and if the defendant, on such service of the 
 subpoena, shall not appear at the return day, the complainant shall 
 be at liberty to proceed ex parte. 
 
 6. Motions. 
 
 1. All motions to the court shall be reduced to writing, and shall 
 contain a brief statement of the facts and objects of the motion. 
 
 2. One hour on each side shall be allowed to the argument of a 
 motion, and no more, without special leave of the court, granted 
 before the argument begins. 
 
 3. Xo motion to dismiss, except on special assignment by the court, 
 shall be heard, unless previous notice has been given to the adverse 
 party, or the counsel or attorney of such party. 
 
 4. All motions to dismiss writs of error and appeals, except motions 
 to docket and dismiss under Rule 9, must be submitted in the first in- 
 stance on printed briefs or arguments. If the court desires further 
 argument on that subject, it will be ordered in connection with the 
 hearing on the merits. The party moving to dismiss shall serve 
 notice of the motion, with a copy of his brief or argument, on the 
 counsel for plaintiff in error or appellant of record in this court, 
 at least three weeks before the time fixed for submitting the motion, 
 in all cases except where the counsel to be notified resides west of 
 the Pocky Mountains, in which case the notice shall be at least thirty 
 days. Affidavits of the deposit in the mail of the notice and brief to 
 the proper address of the counsel to be served, duly post-paid, at such 
 time as to reach him by due course of mail, the three weeks or thirty 
 days before the time fixed by the notice, will be regarded as prima 
 facie evidence of service on counsel who reside without the District of 
 Columbia. On proof of such service, the motion will be considered,
 
 EULES OF THE SUPEEME COUET OF THE UNITED STATES. 689 
 
 unless, for satisfactory reasons, further time be given by the court to 
 either party. 
 
 5. There may be united, with a motion to dismiss a writ of error or 
 an appeal, a motion to affirm on the ground that, although the record 
 may show that this court has jurisdiction, it is manifest the writ or 
 appeal was taken for delay only, or that the question on which the 
 jurisdiction depends is so frivolous as not to need further argument. 
 
 6. The court will not hear arguments on Saturday (unless for spe- 
 cial cause it shall order to the contrary), but will devote that day to 
 the other business of the court. The motion-day shall be Monday of 
 each week ; and motions not required by the rules of the court to be 
 put on the docket shall be entitled to preference immediately after 
 the reading of opinions, if such motions shall be made before the 
 court shall have entered upon the hearing of a case upon the docket. 
 
 7. Law Library. 
 
 1. During the session of the court, any gentleman of the bar having 
 a case on the docket, and wishing to use any book or books in the law 
 library, shall be at liberty, upon application to the clerk of the court, 
 to receive an order to take the same (not exceeding at any one time 
 three) from the library, he being thereby responsible for the due re- 
 turn of the same within a reasonable time, or when required by the 
 clerk. It shall be the duty of the clerk to keep, in a book for that 
 purpose, a record of all books so delivered, which are to be charged 
 against the party receiving the same. And in case the same shall 
 not be so returned, the party receiving the same shall be responsible 
 for and forfeit and pay twice the value thereof, and also one dollar per 
 day for each day's detention beyond the limited time. 
 
 2. The clerk shall deposit in the law library, to be there carefully 
 preserved, one copy of the printed record in every case submitted to 
 the court for its consideration, and of all printed motions, briefs, or 
 arguments filed therein. 
 
 3. The marshal shall take charge of the books of the court, together 
 with such of the duplicate law books as Congress may direct to be 
 transferred to the court, and arrange them in the conference-room, 
 which he shall have fitted up in a proper manner ; and he shall not 
 permit such books to be taken therefrom by any one except the 
 justices of the court. 
 
 8. Writ of Error, Return and Record. 
 
 1. The clerk of the court to which any writ of error may be directed 
 shall make return of the same, by transmitting a true copy of the rec- 
 
 44
 
 690 APPENDIX. 
 
 ord, and of the assignment of errors, and of all proceedings in the 
 case, under his hand and the seal of the court. 
 
 2. In all cases brought to this court, by writ of error or appeal, to 
 review any judgment or decree, the clerk of the court by which such 
 judgment or decree was rendered shall annex to and transmit with the 
 record a copy of the opinion or opinions filed in the case. 
 
 3. No case will be heard until a complete record, containing in 
 itself, and not by reference, all the papers, exhibits, depositions, and 
 other proceedings, which are necessary to the hearing in this court, 
 shall be filed. 
 
 4. Whenever it shall be necessary or proper, in the opinion of the 
 presiding judge in any circuit court, or district court, exercising 
 circuit court jurisdiction, that original papers of any kind should be 
 inspected in this court upon writ of error or appeal, such presiding 
 judge may make such rule or order for the safe-keeping, transporting, 
 and return of such original papers as to him may seem proper ; and 
 this court will receive and consider such original papers in connection 
 with the transcript of the proceedings. 
 
 5. In cases where final judgment is rendered more than thirty days 
 before the first day of the next term of this court, the writ of error 
 and citation, if taken before, must be returnable on the first day of 
 said term, and be served before that day ; but in cases where the 
 judgment is rendered less than thirty days before the first day, the 
 writ of error and citation may be made returnable on the third Mon- 
 day of the said term, and be served before that day. 
 
 6. The record in cases of admiralty and maritime jurisdiction, when 
 under the requirements of law the facts have been found in the court 
 below, and the power of review is limited to the determination of 
 questions of law arising on the record, shall be confined to the plead- 
 ings, the findings of fact and conclusions of law thereon, the bills of 
 exceptions, the final judgment or decree, and such interlocutory orders 
 and decrees as may be necessary to a proper review of the case. 
 
 9. Docketing Cases. 
 1. In all cases where a writ of error or an appeal shall be brought 
 to this court from any judgment or decree rendered thirty days before 
 the commencement of the term, it shall be the duty of the plaintiff in 
 error or appellant to docket the case and file the record thereof with 
 the clerk of this court within the first six days of the term ; and if 
 the writ of error or appeal shall be brought from a judgment or de- 
 cree rendered less than thirty days before the commencement of the 
 term, it shall be the duty of the plaintiff in error or appellant to 
 docket the case and file the record thereof with the clerk of this
 
 RULES OF THE SUPREME COURT OF THE UNITED STATES. 691 
 
 court within the first thirty days of the term ; and if the plaintiff in 
 error or appellant shall fail to comply with this rule, the defendant 
 in error or appellee may have the case docketed and dismissed, upon 
 producing a certificate from the clerk of the court wherein the judg- 
 ment or decree was rendered stating the case, and certifying that 
 such writ of error or appeal has been duly sued out and allowed. 
 And in no case shall the plaintiff in error or appellant be entitled 
 to docket the case and file the record after the same shall have been 
 docketed and dismissed under this rule, unless by order of the court. 
 
 2. But the defendant in error or appellee may, at his option, docket 
 the case and file a copy of the record with the clerk of the court ; and 
 if the case is docketed and a copy of the record filed with the clerk of 
 this court by the plaintiff in error or appellant within the periods of 
 time above limited and prescribed by this rule, or by the defendant 
 in error or appellee at any time thereafter during the term, the case 
 shall stand for argument at the term. 
 
 3. Upon the filing of the transcript of a record brought up by writ of 
 error or appeal, the appearance of the counsel for the party docketing 
 the case shall be entered. 
 
 4. In all cases where the period of thirty days is mentioned in this 
 rule, it shall be extended to sixty days in writs of error and appeals 
 from California, Oregon, Nevada, Washington, New Mexico, Utah, 
 Arizona, Montana, and Idaho. 
 
 10. Printing Records. 
 
 1. In all cases the plaintiff in error or appellant, on docketing a 
 case and filing the record, shall enter into an undertaking to the 
 clerk, with surety to his satisfaction, for the payment of his fees, 
 or otherwise satisfy him in that behalf. 
 
 2. The clerk shall cause an estimate to be made of the cost of print- 
 ing the record, and of his fee for preparing it for the printer and su- 
 pervising the printing, and shall notify to the party docketing the 
 case the amount of the estimate. If he shall not pay it within a rea- 
 sonable time, the clerk shall notify the adverse party, and he may pay 
 it. If neither party shall pay it, and for want of such payment the 
 record shall not have been printed when a case is reached in the 
 regular call of the docket, after March 1st, 1884, the case shall 
 be dismissed. 
 
 3. Upon payment by either party of the amount estimated by the 
 clerk, twenty-five copies of the record shall be printed, under his su- 
 pervision, for the use of the court and of counsel. 
 
 4. In cases of appellate jurisdiction the original transcript on file 
 shall be taken by the clerk to the printer. But the clerk shall cause
 
 692 APPENDIX. 
 
 copies to be made for the printer of such original papers, sent up 
 under Rule 8, Section 4, as are necessary to be printed ; and of the 
 whole record in cases of original jurisdiction. 
 
 5. The clerk shall supervise the printing, and see that the printed 
 copy is properly indexed. He shall distribute the printed copies to 
 the justices and the reporter, from time to time, as required, and a 
 copy to the counsel for the respective parties. 
 
 6. If the actual cost of printing the record, together with the fee 
 of the clerk, shall be less than the amount estimated and paid, the 
 amount of the difference shall be refunded by the clerk to the party 
 paying it. If the actual cost and clerk's fee shall exceed the estimate, 
 the amount of the excess shall be paid to the clerk before the delivery 
 of a printed copy to either party or his counsel. 
 
 7. In case of reversal, affirmance, or dismissal, with costs, the 
 amount of the cost of printing the record and of the clerk's fee 
 shall be taxed against the party against whom costs are given, and 
 shall be inserted in the body of the mandate or other proper process. 
 
 8. Upon the clerk's producing satisfactory evidence, by affidavit or 
 the acknowledgment of the parties or their sureties, of having served 
 a copy of the bill of fees due by them, respectively, in this court, 
 on such parties or their sureties, an attachment shall issue against 
 such parties or sureties, respectively, to compel payment of the said 
 fees. 
 
 October Term, 1886. 
 
 Ordered, That the following section be added to Rule 10 : 
 
 9. The plaintiff in error or appellant may, within ninety days after 
 filing the record in this court, file with the clerk a statement of the 
 errors on which he intends to rely, and of the parts of the record 
 which he thinks necessary for the consideration thereof, and forth- 
 with serve on the adverse party a copy of such statement. The ad- 
 verse party, within ninety days thereafter, may designate in writing, 
 filed with the clerk, additional parts of the record which he thinks 
 material ; and, if he shall not do so, he shall be held to have con- 
 sented to a hearing in the parts designated by the plaintiff in error 
 or appellant. If parts of the record shall be so designated by one or 
 both of the parties, the clerk shall print those parts only ; and the 
 court will consider nothing but those parts of the record, and the 
 errors so stated. If at the hearing it shall appear that any material 
 part of the record has not been printed, the writ of error or appeal 
 may be dismissed, or such other order made as the circumstances may 
 appear to the court to require. If the defendant in error or appellee
 
 RULES OF THE SUPREME COURT OF THE UNITED STATES. 693 
 
 shall have caused unnecessary parts of the record to be printed, such 
 order as to costs may be made as the court shall think proper. 
 
 The fees of the clerk, under Rule 24, Section 7, shall be computed, 
 as at present, in the folios in the record as filed, and shall be in full 
 for the performance of his duties in the execution hereof. 
 
 Promulgated March 28, 1887. 
 
 11. Translations. 
 
 Whenever any record transmitted to this court upon a writ of error 
 or appeal shall contain any document, paper, testimony, or other pro- 
 ceedings in a foreign language, and the record does not also contain a 
 translation of such document, paper, testimony, or other proceedings, 
 made under the authority of the inferior court, or admitted to be cor- 
 rect, the record shall not be printed ; but the case shall be reported 
 to this court by the clerk, and the court will thereupon remand it to 
 the inferior court, in order that a translation may be there supplied 
 and inserted in the record. 
 
 12. Further Proof. 
 
 1. In all cases where further proof is ordered by the court, the de- 
 positions which may be taken shall be by a commission, to be issued 
 from this court, or from any circuit court of the United States. 
 
 2. In all cases of admiralty and maritime jurisdiction, where new 
 evidence shall be admissible in this court, the evidence by testimony 
 of witnesses shall be taken under a commission to be issued from this 
 court, or from any circuit court of the United States, under the 
 direction of any judge thereof ; and no such commission shall issue 
 but upon interrogatories, to be filed by the party applying for the 
 commission, and notice to the opposite party or his agent or attorney, 
 accompanied with a copy of the interrogatories so filed, to file cross- 
 interrogatories within twenty days from the service of such notice : 
 Provided, however, That nothing in this rule shall prevent any party 
 from giving oral testimony in open court in cases where by law it is 
 admissible. 
 
 13. Objections to Evidence in the Record. 
 
 In all cases of equity or admiralty jurisdiction, heard in this court, 
 no objection shall hereafter be allowed to be taken to the admissibility 
 of any deposition, deed, grant, or other exhibit found in the record as 
 evidence, unless objection was taken thereto in the court below and 
 entered of record ; but the same shall otherwise be deemed to have 
 been admitted by consent.
 
 694 APPENDIX. 
 
 14. Certiorari. 
 No certiorari for diminution of the record will be hereafter awarded 
 in any case, unless a motion therefor shall be made in writing, and the 
 facts on which the same is founded shall, if not admitted by the other 
 party, be verified by affidavit. And all motions for such certiorari 
 must be made at the first term of the entry of the case ; otherwise, 
 the same will not be granted, unless upon special cause shown to the 
 court, accounting satisfactorily for the delay. 
 
 15. Death of a Party. 
 
 1. Whenever, pending a writ of error or appeal in this court, either 
 party shall die, the proper representatives in the personalty or realty 
 of the deceased party, according to the nature of the case, may volun- 
 tarily come in and be admitted parties to the suit, and thereupon the 
 case shall be heard and determined as in other cases ; and if such rep- 
 resentatives shall not voluntarily become parties, then the other party 
 may suggest the death on the record, and thereupon, on motion, obtain 
 an order that unless such representatives shall become parties within 
 the first ten days of the ensuing term, the party moving for such 
 order, if defendant in error, shall be entitled to have the writ of 
 error or appeal dismissed ; and if the party so moving shall be plain- 
 tiff in error, he shall be entitled to open the record, and on hearing 
 have the judgment or decree reversed, if it be erroneous : Provided, 
 however, That a copy of every such order shall be printed in some 
 newspaper of general circulation within the State, Territory, or Dis- 
 trict from which the case is brought, for three successive weeks, at 
 least sixty days before the beginning of the term of the Supreme 
 Court then next ensuing. 
 
 2. When the death of a party is suggested, and the representatives 
 of the deceased do not appear by the tenth day of the second term 
 next succeeding the suggestion, and no measures are taken by the 
 opposite party within that time to compel their appearance, the case 
 shall abate. 
 
 3. When either party to a suit in a circuit court of the United 
 States shall desire to prosecute a writ of error or appeal to the Su- 
 preme Court of the United States, from any final judgment or decree, 
 rendered in the circuit court, and at the time of suing out such writ of 
 error or appeal the other party to the suit shall be dead and have no 
 proper representative within the jurisdiction of the court which ren- 
 dered such final judgment or decree, so that the suit cannot be revived 
 in that court, but shall have a proper representative in some State or 
 Territory of the United States, the party desiring such writ of error
 
 RULES OF THE SUPREME COURT OF THE UNITED STATES. 695 
 
 or appeal may procure the same, and may have proceedings on such 
 judgment or decree superseded or stayed in the same manner as is 
 now allowed by law in other cases, and shall thereupon proceed with 
 such writ of error or appeal as in other cases. And within thirty days 
 after the commencement of the term to which such writ of error 
 or appeal is returnable, the plaintiff in error or appellant shall make 
 a suggestion to the court, supported by affidavit, that the said party 
 was dead when the writ of error or appeal was taken or sued out, and 
 had no proper representative within the jurisdiction of the court 
 which rendered said judgment or decree, so that the suit could not 
 be revived in that court, and that said party had a proper represen- 
 tative in some State or Territory of the United States, and stating 
 therein the name and character of such representative, and the State 
 or Territory in which such representative resides ; and, upon such 
 suggestion, he may, on motion, obtain an order that, unless such rep- 
 resentative shall make himself a party within the first ten days of 
 the ensuing term of the court, the plaintiff in error or appellant shall 
 be entitled to open the record, and, on hearing, have the judgment or 
 decree reversed, if the same be erroneous : Provided, however, That 
 a proper citation reciting the substance of such order shall be served 
 upon such representative, either personally or by being left at his res- 
 idence, at least sixty days before the beginning of the term of the 
 Supreme Court then next ensuing : And provided, also, That in every 
 such case if the representative of the deceased party does not appear 
 by the tenth day of the term next succeeding such suggestion, and 
 the measures above provided to compel the appearance of such rep- 
 resentative have not been taken within the time as above required, 
 by the opposite party, the case shall abate : And provided, also, That 
 the said representative may at any time before or after said sug- 
 gestion come in and be made a party to the suit, and thereupon the 
 case shall proceed, and be heard and determined as in other cases. 
 
 16. No Appearance of Plaintiff. 
 
 Where no counsel appears and no brief has been filed for the plain- 
 tiff in error or appellant, when the case is called for trial, the defend- 
 ant may have the plaintiff called and the writ of error or appeal 
 dismissed, or may open the record and pray for an affirmance. 
 
 17. No Appearance of Defendant. 
 
 Where the defendant fails to appear when the case is called for 
 trial, the court may proceed to hear an argument on the part of the 
 plaintiff and to give judgment according to the right of the case.
 
 696 APPENDIX. 
 
 18. No Appearance of Either Party. 
 When a case is reached in the regular call of the docket, and there 
 is no appearance for either party, the case shall be dismissed at the 
 cost of the plaintiff. 
 
 19. Neither Party ready at Second Term. 
 When a case is called for argument at two successive terms, and 
 upon the call at the second term neither party is prepared to argue it, 
 it shall be dismissed at the cost of the plaintiff, unless sufficient cause 
 is shown for further postponement. 
 
 20. Printed Arguments. 
 
 1. In all cases brought here on writ of error, appeal, or otherwise, 
 the court will receive printed arguments without regard to the num- 
 ber of the case on the docket, if the counsel on both sides shall choose 
 to submit the same within the first ninety days of the term, and, 
 in addition, appeals from the Court of Claims may be submitted by 
 both, within thirty days after they are doeketed, but not after the 
 first day of April ; but twenty-five copies of the arguments, signed 
 by attorneys or counsellors of this court, must be first filed. 
 
 2. When a case is reached in the regular call of the docket, and a 
 printed argument shall be filed for one or both parties, the case shall 
 stand on the same footing as if there were an appearance by counsel. 
 
 3. When a case is taken up for trial upon the regular call of the 
 docket, and argued orally in behalf of only one of the parties, no 
 printed argument for the opposite party will be received, unless it is 
 filed before the oral argument begins, and the court will proceed to 
 consider and decide the case upon the ex parte argument. 
 
 4. No brief or argument will be received, either through the clerk 
 or otherwise, after a case has been argued or submitted, except upon 
 leave granted in open court after notice to opposing counsel. 
 
 21. Briefs. 
 
 1. The counsel for the plaintiff in error or appellant shall file with 
 the clerk of the court, at least six days before the case is called for 
 argument, twenty-five copies of a printed brief, one of which shall, on 
 application, be furnished to each of the counsel engaged upon the 
 opposite side. 
 
 2. This brief shall contain, in the order here stated — 
 
 (1) A concise abstract, or statement of the case, presenting suc- 
 cinctly the questions involved and the manner in which they are 
 raised.
 
 RULES OF THE SUPREME COURT OF THE UNITED STATES. 697 
 
 (2) A specification of the errors relied upon, which, in cases brought 
 up by writ of error, shall set out separately and particularly each error 
 asserted and intended to be urged ; and in cases brought up by appeal 
 the specification shall state, as particularly as may be, in what the 
 decree is alleged to be erroneous. When the error alleged is to the 
 admission or to the rejection of evidence, the specification shall 
 quote the full substance of the evidence admitted or rejected. When 
 the error alleged is to the charge of the court, the specification shall 
 set out the part referred to totidem verbis, whether it be instructions 
 given or instructions refused. When the error alleged is to a ruling 
 upon the report of a master, the specification shall state the exception 
 to the report and the action of the court upon it. 
 
 (3) A brief of the argument, exhibiting a clear statement of the 
 points of law or fact to be discussed, with a reference to the pages of 
 the record and the authorities relied upon in support of each point. 
 When a statute of a State is cited, so much thereof as may be deemed 
 necessary to the decision of the case shall be printed at length. 
 
 3. The counsel for a defendant in error or an appellee shall file 
 with the clerk twenty-five printed copies of his argument, at least 
 three days before the case is called for hearing. His brief shall be 
 of a like character with that required of the plaintiff in error or ap- 
 pellant, except that no specification of errors shall be required, and 
 no statement of the case, unless that presented by the plaintiff in 
 error or appellant is controverted. 
 
 4. When there is no assignment of errors, as required by section 
 997 of the Revised Statutes, counsel will not be heard, except at the 
 request of the court ; and errors not specified according to this rule 
 will be disregarded ; but the court, at its option, may notice a plain 
 error not assigned or specified. 
 
 5. When, according to this rule, a plaintiff in error or an appellant 
 is in default, the case may be dismissed on motion ; and when a de- 
 fendant in error or an appellee is in default, he will not be heard, 
 except on consent of his adversary, and by request of the court. 
 
 6. When no counsel appears for one of the parties, and no printed 
 brief or argument is filed, only one counsel will be heard for the ad- 
 verse party ; but if a printed brief or argument is filed, the adverse 
 party will be entitled to be heard by two counsel. 
 
 22. Oral Arguments. 
 
 1. The plaintiff or appellant in this court shall be entitled to open 
 and conclude the argument of the case. But when there are cross- 
 appeals they shall be argued together as one case, and the plaintiff
 
 698 APPENDIX. 
 
 in the court below shall be entitled to open and conclude the 
 argument. 
 
 2. Only two counsel will be heard for each party on the argument 
 of a case. 
 
 3. Two hours on each side will be allowed for the argument, and no 
 more, without special leave of the court, granted before the argument 
 begins. The time thus allowed may be apportioned between the 
 counsel on the same side, at their discretion : Provided, always, That 
 a fair opening of the case shall be made by the party having the 
 opening and closing arguments. 
 
 23. Interest. 
 
 1. In cases where a writ of error is prosecuted to this court, and 
 the judgment of the inferior court is affirmed, the interest shall be 
 calculated and levied, from the date of the judgment below until the 
 same is paid, at the same rate that similar judgments bear interest in 
 the courts of the State where such judgment is rendered. 
 
 2. In all cases where a writ of error shall delay the proceedings on 
 the judgment of the inferior court, and shall appear to have been 
 sued out merely for delay, damages at a rate not exceeding ten per 
 cent., in addition to interest, shall be awarded upon the amount of 
 the judgment. 
 
 3. The same rule shall be applied to decrees for the payment of 
 money in cases in equity, unless otherwise ordered by this court. 
 
 4. In cases in admiralty, interest shall not be allowed, unless spe- 
 cially directed by the court. 
 
 24. Costs. 
 
 1. In all cases where any suit shall be dismissed in this court, ex- 
 cept where the dismissal shall be for want of jurisdiction, costs shall 
 be allowed to the defendant in error or appellee, unless otherwise 
 agreed by the parties. 
 
 2. In all cases of affirmance of any judgment or decree in this court, 
 costs shall be allowed to the defendant in error or appellee, unless 
 otherwise ordered by the court. 
 
 3. In cases of reversal of any judgment or decree in this court, 
 costs shall be allowed to the plaintiff in error or appellant, unless 
 otherwise ordered by the court. The cost of the transcript of the 
 record from the court below shall be a part of such costs, and be 
 taxable in that court as costs in the case. 
 
 4. Neither of the foregoing sections shall apply to cases where the 
 United States are a party ; but in such cases no costs shall be al- 
 lowed in this court for or against the United States. 

 
 RULES OF THE SUPREME COURT OF THE UNITED STATES. 699 
 
 5. In all cases of the dismissal of any suit in this court, it shall be 
 the duty of the clerk to issue a mandate, or other proper process, in 
 the nature of a procedendo, to the court below, for the purpose of in- 
 forming such court of the proceedings in this court, so that further 
 proceedings may be had in such court as to law and justice may 
 appertain. 
 
 6. When costs are allowed in this court, it shall be the duty of the 
 clerk to insert the amount thereof in the body of the mandate, or 
 other proper process, sent to the court below, and annex to the same 
 the bill of items taxed in detail. 
 
 7. In pursuance of the act of March 3d, 1883, authorizing and em- 
 powering this court to prepare a table of fees to be charged by the 
 clerk of this court, the following table is adopted : 
 
 For docketing a case and filing and indorsing the transcript of the 
 record, five dollars. 
 
 For entering an appearance, twenty-five cents. 
 
 For entering a continuance, twenty-five cents. 
 
 For filing a motion, order, or other paper, twenty-five cents. 
 
 For entering any rule, or for making or copying any record or other 
 paper, twenty cents per folio of each one hundred words. 
 
 For transferring each case to a subsequent docket and indexing the 
 same, one dollar. 
 
 For entering a judgment or decree, one dollar. 
 
 For every search of the records of the court, one dollar. 
 
 For a certificate and seal, two dollars. 
 
 For receiving, keeping, and paying money in pursuance of any stat- 
 ute or order of court, two per cent, on the amount so received, kept, 
 and paid. 
 
 For an admission to the bar and certificate under seal, ten dollars. 
 
 For preparing the record or a transcript thereof for the printer, index- 
 ing the same, supervising the printing and distributing the printed 
 copies to the justices, the reporter, the law library, and the parties or 
 their counsel, fifteen cents per folio. 
 
 For making a manuscript copy of the record, when required under 
 Rule 10, twenty cents per folio, but nothing in addition for supervis- 
 ing the printing. 
 
 For issuing a writ of error and accompanying papers, five dollars. 
 
 For a mandate or other process, five dollars. 
 
 For filing briefs, five dollars for each party appearing. 
 
 For every copy of any opinion of the court or any justice thereof, 
 certified under seal, one dollar for every printed page, but not to 
 exceed five dollars in the whole for any copy.
 
 700 APPENDIX. 
 
 25. Opinions of the Court. 
 
 1. All opinions delivered by the court shall, immediately upon the 
 delivery thereof, be handed to the clerk to be recorded. And it shall 
 be the duty of the clerk to cause the same to be forthwith recorded, 
 and to deliver a copy to the reporter as soon as the same shall be 
 recorded. 
 
 2. The original opinions of the court shall be filed with the clerk of 
 this court for preservation. 
 
 3. Opinions printed under the supervision of the justices delivering 
 the same need not be copied by the clerk into a book of records ; but 
 at the end of each term the clerk shall cause such printed opinions to 
 be bound in a substantial manner into one or more volumes, and when 
 so bound they shall be deemed to have been recorded within the mean- 
 ing of this rule. 
 
 26. Call and Order of the Docket. 
 [As amended in October Term, 1888, 130 U. S. 706.] 
 
 1. The court, on the second day in each term, will commence call- 
 ing the cases for argument in the order in which they stand on the 
 docket, and proceed from day to day during the term in the same 
 order (except as hereinafter provided) ; and if the parties, or either of 
 them, shall be ready when the case is called, the same will be heard ; 
 and if neither party shall be ready to proceed in the argument, the 
 case shall go down to the foot of the docket, unless some good and 
 satisfactory reason to the contrary shall be shown to the court. 
 
 2. Ten cases only shall be considered as liable to be called on each 
 day during the term. But on the coming in of the court on each day 
 the entire number of such ten cases will be called, with a view to the 
 disposition of such of them as are not to be argued. 
 
 3. Criminal cases may be advanced by leave of the court on motion 
 of either party. 
 
 4. Cases once adjudicated by this court upon the merits, and again 
 brought up by writ of error or appeal, may be advanced by leave of 
 the court on motion of either party. 
 
 5. Eevenue and other cases in which the United States are con- 
 cerned, which also involve or affect some matter of general public 
 interest, may also by leave of the court be advanced on motion of the 
 attorney-general. 
 
 6. All motions to advance cases must be printed, and must contain 
 a brief statement of the matter involved, with the reasons for the 
 application.
 
 EULES OF THE SUPREME COURT OF THE UNITED STATES. 701 
 
 7. No other case will be taken up out of the order on the docket, or 
 be set down for any particular day, except under special and peculiar 
 circumstances to be shown to the court. Every case which shall have 
 been called in its order and passed and put at the foot of the docket 
 shall, if not again reached during the term it was called, be continued 
 to the next term of the court. 
 
 8. Two or more cases, involving the same question, may, by the 
 leave of the court, be heard together, but they must be argued as 
 one case. 
 
 9. If, after a case has been passed under circumstances which do 
 not place it at the foot of the docket, the parties shall desire to have 
 it heard, they may file with the clerk their joint retpiest to that 
 effect, and the case shall then be by him reinstated for call ten cases 
 after that under argument, or next to be called at the end of the day 
 the request is filed. If the parties will not unite in such a request, 
 either may move to take up the case, and it shall then be assigned to 
 such place upon the docket as the court may direct. 
 
 10. No stipulation to pass a case without placing it at the foot 
 of the docket will be recognized as binding upon the court. A case 
 can only be so passed upon application made and leave granted in 
 open court. 
 
 27. Adjournment. 
 The court will, at every term, announce on what day it will adjourn 
 at least ten days before the time which shall be fixed upon, and the 
 court will take up no case for argument, nor receive any case upon 
 printed briefs, within three days next before the day fixed upon for 
 adjournment. 
 
 28. Dismissing Cases in Vacation. 
 Whenever the plaintiff and defendant in a writ of error pending in 
 this court, or the appellant and appellee in an appeal, shall in vaca- 
 tion, by their attorneys of record, sign and file with the clerk an 
 agreement in writing directing the case to be dismissed, and specify- 
 ing the terms on which it is to be dismissed as to costs, and shall pay 
 to the clerk any fees that may be due to him, it shall be the duty of 
 the clerk to enter the case dismissed, and to give to either party re- 
 questing it a copy of the agreement filed ; but no mandate or other 
 process shall issue without an order of the court. 
 
 29. Supersedeas. 
 Supersedeas bonds in the circuit courts must be taken, with good 
 and sufficient security, that the plaintiff in °rror or appellant shall
 
 702 APPENDIX. 
 
 prosecute his writ or appeal to effect, and answer all damages and 
 costs if he fail to make his plea good. Such indemnity, where the 
 judgment or decree is for the recovery of money not otherwise se- 
 cured, must be for the whole amount of the judgment or decree, 
 including just damages for delay, and costs and interest on the 
 appeal ; but in all suits where the property in controversy neces- 
 sarily follows the event of the suit, as in real actions, replevin, and 
 in suits on mortgages, or where the property is in the custody of the 
 marshal under admiralty process, as in case of capture or seizure, or 
 where the proceeds thereof, or a bond for the value thereof, is in the 
 custody or control of the court, indemnity in all such cases is only 
 required in an amount sufficient to secure the sum recovered for the 
 use and detention of the property, and the costs of the suit, and just 
 damages for delay, and costs and interest on the appeal. 
 
 30. Eehearing. 
 A petition for rehearing after judgment can be presented only at 
 the term at which judgment is entered, unless by special leave 
 granted during the term ; and must be printed and briefly and 
 distinctly state its grounds, and be supported by certificate of 
 counsel ; and will not be granted, or permitted to be argued, un- 
 less a justice who concurred in the judgment desires it, and a 
 majority of the court so determines. 
 
 31. Form of printed Eecords and Briefs. 
 All records, arguments, and briefs printed for the use of the 
 court must be in such form and size that they can be conveniently 
 bound together, so as to make an ordinary octavo volume. 
 
 32. Writs of Error and Appeals under section 5 of the Act 
 of March 3d, 1875. 
 
 1. Writs of error and citations under section 5 of the act of March 
 3d, 1875, " to determine the jurisdiction of the circuit courts of the 
 United States, and to regulate the removal of causes from the State 
 courts, and for other purposes," for the review of orders of the cir- 
 cuit courts dismissing suits, or remanding suits to a State court, must 
 be made returnable within thirty days after date, and be served before 
 the return-day. 
 
 2. In all cases where writ of error or appeal is brought to this 
 court under the provisions of that act, it shall be the duty of the 
 plaintiff in error or the appellant to docket the case and file the 
 record in this court within thirty-six days after the date of the writ 
 of error, or the taking of the appeal, if there shall be a term of the
 
 RULES OF THE SUPEEME COURT OF THE UNITED STATES. 703 
 
 court pending at that time, and if not, then during the first six days 
 of the next term. If default be made in this particular, proceedings 
 to docket and dismiss may be had as in other cases. 
 
 3. All such cases will be advanced on motion. The motion may be 
 made ex parte. If granted, the party on whose motion the case shall 
 have been advanced may have the case submitted on printed briefs, 
 on serving, with a copy of his brief, on the adverse party, a notice of 
 intention to submit, such as is required by Rule 6 to be given upon 
 motions to dismiss writs of error and appeals. 
 
 4. As soon as such a case is docketed and advanced, the record shall 
 be printed, unless the parties stipulate to the contrary, and file their 
 stipulation with the clerk. - 
 
 5. In all cases where a period of thirty days is included in the 
 times fixed by this rule, it shall be extended to sixty days in writs of 
 error and appeals from California, Oregon, or Nevada. 
 
 33. Models, Diagrams, and Exhibits of Material. 
 
 1. Models, diagrams, and exhibits of material forming part of the 
 evidence taken in the court below, in any case pending in this court, 
 on writ of error or appeal, shall be placed in the custody of the 
 marshal of this court at least one month before the case is heard or 
 submitted. 
 
 2. All models, diagrams, and exhibits of material, placed in the cus- 
 tody of the marshal for the inspection of the court on the hearing of 
 a case, must be taken away by the parties within one month after the 
 case is decided. When this is not done, it shall be the duty of the 
 marshal to notify the counsel in the case, by mail or otherwise, of 
 the requirements of this rule ; and if the articles are not removed 
 within a reasonable time after the notice is given, he shall destroy 
 them, or make such other disposition of them as to him may 
 seem best. 
 
 AMENDMENT TO EULES 
 
 IN THE SUPREME COURT OF THE UNITED STATES, 
 
 October Term, 1885. 
 
 Ordered, That the following regulations be established under sec- 
 tion 705 of the Revised Statutes : 
 
 Rule 34. Custody of Prisoners on Habeas Corpus. 
 1. Pending an appeal from the final decision of any court or judge 
 declining to grant the writ of habeas corpus, the custody of the pris- 
 oner shall not be disturbed.
 
 704 APPENDIX. 
 
 2. Pending an appeal from the final decision of any court or judge 
 discharging the writ after it has been issued, the prisoner shall be re- 
 manded to the custody from which he was taken by the writ, or shall, 
 for good cause shown, be detained in custody of the court or judge, or 
 be enlarged upon recognizance, as hereinafter provided. 
 
 3. Pending an appeal from the final decision of any court or judge 
 discharging the prisoner, he shall be enlarged upon recognizance, with 
 surety, for appearance to answer the judgment of the appellate court, 
 except where, for special reasons, sureties ought not to be required. 
 
 [Promulgated March 29, 1886; and as amended, May 10, 1886.]
 
 INDEX. 
 
 [PREPARED BY MR. MORRIS COOPER OF THE NEW YORK BAR.] 
 
 A. 
 
 AARON BURR, 
 
 subpoena duces tecum against Thomas Jefferson issued on 
 
 trial of § 98 p. 159 
 
 ABATEMENT, 
 
 pleas in § 125 p. 190 
 
 cured by filing bill of revivor § 174 p. 255 
 
 what causes abatement of suits in equity .... § 174 pp. 255-250 
 
 effect of § 175 pp. 257-258 
 
 common-law procedure respecting . . . §360 p. 530; § 363 p. 553 
 of appeal or writ of error in Supreme Court of United 
 States, for failure to make representatives of deceased 
 
 persons parties § 397 p. 600 
 
 See also Pleas. 
 ABATEMENT AND REVIVOR, 
 
 of suits in equity § 373 pp. 553-551 
 
 of actions at law § 360 p. 530; § 373 p. 553 
 
 ABSENT PARTY, 
 
 when interest of, in controversy is very small .... § 57 p. 103 
 ABSOLUTE DECREE. See Decrees. 
 ACCIDENT, 
 
 as a subject of relief in equity . . • § 2 p. 3 
 
 ACCOUNT, 
 
 when opened by equity § 11 p. 15 
 
 bill for, what to contain § 84 p. 139 
 
 discovery in bill demanding an § 148 p. 219 
 
 cross-bills need not be filed in certain actions for an . . § 171 p. 247 
 of receiver . § 11 p. 141 ; § 246 p. 362 ; § 250 p. 373; § 257 pp. 383-384 
 
 of receiver, master passing § 254 p. 379 
 
 reference to master to take §300 p. 446 
 
 in which form to be brought before master §311 p. 458 
 
 errors in master's statement of § 315 p. 463 
 
 decrees for, should specify the time from which the ac- 
 count is to be taken § 325 p. 476 
 
 45
 
 706 INDEX. 
 
 ACCOUNTING, 
 
 of bailiffs § 11 p. 14 
 
 merchants § 11 p. 14 
 
 trustees § 11 p. 14 
 
 guardians § 11 p. 14 
 
 receivers ... § 11 p. 14 ; § 24G p. 362 ; § 250 p. 373; § 254 p. 379; 
 
 § 257 pp. 383-384; § 300 p. 446 
 
 bill for § 11 p. 14-15 
 
 matter in dispute in suit for § 16 p. 24 
 
 when stockholders are necessary parties to suit for an, 
 
 against corporation § 45 p. 88 
 
 suit for, by partner, who necessary parties to § 52 p 96 
 
 between partners, necessary parties to § 53 p. 99 
 
 decree for, should contain a submission by the plaintiff to 
 
 account § 321 p. 470 
 
 ACKNOWLEDGMENT, 
 
 want of, whether invalidating bond given on removal of 
 
 cause § 385 p. 574 
 
 ACQUIESCENCE, 
 
 with decree, not a waiver of right to bring appeal or writ 
 
 of error § 397 p. 601 
 
 ACTIONS, 
 
 survival of § 373 pp. 553-554 
 
 ACTION AT LAW, 
 
 when not enjoined § 12 p. 18 
 
 ACTS, 
 
 of State and Territorial legislatures, introducing in evidence § 268 p. 404 
 See Statutes. 
 
 ADDRESS, 
 
 in bills, rules relative to, and form of § 66 pp. 112-113 
 
 ADEQUATE REMEDY AT LAW. 
 
 See Remedy at Law. 
 
 ADJOURNMENT, 
 
 of hearing on appeal pending certiorari for diminution of 
 
 record § 403 p 610 
 
 See also Postponement. 
 
 ADJUSTMENT, 
 
 of liability, as a subject of jurisdiction in equity ... § 2 p. 4 
 
 ADMINISTRATION, 
 
 citizenship of, as affecting jurisdiction § 18 p. 26 
 
 necessary parties to bills in equitv, when right of, is in dis- 
 pute § 58 p. 103 
 
 ADMINISTRATOR, 
 
 suits against § 9 P- H 
 
 suit against, by next of kin § 11 p. 12 
 
 capacity of foreign, to sue § 34 p. 68 
 
 foreign, when cannot be sued § 35 p. 68 
 
 when to be made a party to suits affecting estate ... § 42 p. 82
 
 INDEX. 707 
 
 ADMINISTRATOR — continued. 
 
 when necessary parties to suits „ § 45 p. 85 
 
 necessary parties in suits against § 52 p. 96 
 
 evidence in actions by or against § 274 p. 409 
 
 abatement and revival of suits § :J73 pp. 553-554 
 
 ADMINISTRATOR'S SURETIES, 
 
 suit against . § 11 p. 12 
 
 ADMIRALTY, 
 
 rules of evidence in cases of admiralty jurisdiction ... § 264 p. 395 
 ADMIRALTY PROCESS, 
 
 security required to obtain supersedeas where property is 
 
 in custody of marshal under § 402 p. 606 
 
 ADMISSIONS, 
 
 not necessary to charge specifically in bill in order to give 
 
 in evidence § 69 p. 117 
 
 by demurrer § 106 pp. 170-172 
 
 and denials in answer independent of discovery ... § 146 pp. 215-216 
 
 of sufficiency by filing replication § 158 p. 232 
 
 See also Evidence. 
 ADVANCING APPEALS, 
 
 on calendar of Supreme Court § 408 p. 620 
 
 ADVICE, 
 
 receiver applying to court for § 246 p. 362 
 
 to receivers § 248 pp. 368-369 
 
 See also Instructions. 
 AFFIDAVITS, 
 
 to bills, when required § 87 p. 112 
 
 failure to support bill by, in certain cases demurrable . . § 108 p. 176 
 
 of defendant to accompany demurrer § 118 p. 183 
 
 to support application for leave to amend § 168 p. 244 
 
 necessary to support an ex parte application for an injunc- 
 tion to restrain the infringement of a patent .... § 216 p. 313 
 
 upon an application for an injunction § 232 pp. 331-303 
 
 to bill of costs § 337 p. 498 
 
 to show value of matter in dispute where it does not ap- 
 pear of record ■ § 395 p. 596 
 
 of deposit in mail of notice and brief, on motion to dis- 
 miss appeal or writ of error § 406 p. 617 
 
 See also Evidence. 
 AFFIRMANCE, 
 
 motions for § 406 p. 616 
 
 by Supreme Court of judgment appealed from .... § 409 p. 623 
 AFFIRMATION, 
 
 iti lieu of oath § 270 p. 406 
 
 AFFIRMATIVE PROMISE. 
 
 injunction to restrain violation of negative promise, though 
 court has in the particular case no power to compel keep- 
 ing of affirmative promise §220 p 319 
 
 AGENTS, 
 
 making parties to suits against principals § 43 p. 83
 
 708 INDEX. 
 
 AGREEMENT, 
 
 alternative relief in action affecting § 70 p. 118 
 
 between counsel must be reduced to writing, or made in 
 
 open court § 265 p. 396 
 
 ALABAMA, 
 
 judicial districts in § 22 p. 31 
 
 divided into three districts § 26 p. 35 
 
 counties and times and places 
 of holding court therein enu- 
 merated § 26 pp. 35-36 
 
 statutory limitations of jurisdiction by residence in . . note, p. 58 
 district of, included within fifth circuit § 204 p. 295 
 
 ALIENAGE, 
 
 when not terminated § 19 p. 27 
 
 ALIENATION OF PROPERTY, 
 
 injunctions to restrain § 212 pp 305-306 
 
 ALIEN ENEMY, 
 
 demurrer for being . . . „ § 108 p. 174 
 
 ALIENS, 
 
 controversy between § 19 p. 26 
 
 when incapable of being plaintiffs §§ 28, 30 p. 64 
 
 if party to bill, necessary to aver citizenship of foreign 
 
 State § 66 p. 113 
 
 defendant, when cannot remove case to Circuit Court . . § 383 p. 568 
 
 ALIMONY, 
 
 bill to collect § 11 pp. 13-14 
 
 ALLEGATIONS, 
 
 not stated positively, demurrable § 108 p. 176 
 
 ALLOWANCE, 
 
 to counsel in receiverships § 257 p. 384 
 
 See also Costs. 
 
 of writs of error, by judge, not necessary § 399 p. 603 
 
 See also Writs of Error an~d Appeals. 
 
 ALTERATIONS, 
 
 in answer § 151 p. ~~i 
 
 ALTERNATIVE, 
 
 bill must not state two inconsistent states of fact and ask 
 
 relief in the § 70 p. 117 
 
 when relief in the alternative may be asked for . ... § 70 p. 117 
 
 ALTERNATIVE RELIEF, 
 
 bill praying § 83 p. 137 
 
 AMBASSADORS, 
 
 jurisdiction of cases affecting § 3 p. 5 
 
 original jurisdiction of United States Supreme Court over § 14 pp. 20-21 
 
 AMENDMENT, 
 
 to bill to permit other parties to be brought in ... . § 46 p. 89 
 to bill on objection for multifariousness being sustained . § 75 p. 127
 
 INDEX. 709 
 
 AMENDMENT — continued. 
 
 whether bill may be taken ]>ro confesso for failure to 
 
 answer § 103 p. 164 
 
 of demurrer § llJ < l'-l< :> > 
 
 leave to mate, when granted on sustaining demurrer § 123 pp. 186-187 
 
 to replication § 157 p. 231 
 
 in general § 160 p. 234 
 
 rest in discretion of court § 160 p. 234 
 
 statutory power to grant § 160 p. 234 
 
 liberally made in favor of States, charities, infants, idiots, 
 
 and lunatics § 160 p. 234 
 
 when bills can be amended §161 pp. 234-236 
 
 form and effect of amendment of a bill § 162 pp. 236-237 
 
 what amendments to bills may be made § 103 pp. 237-239 
 
 amendment by pleading matters subsequent to the filing 
 
 of the bill § 164 pp. 239-241 
 
 proceedings upon an amended bill § 105 p. 241 
 
 amendments of demurrers, pleas, and replications ... § 166 p. 242 
 
 answers § 167 pp. 242-244 
 
 practice in obtaining leave to amend § 1<j8 pp. 244-245 
 
 rarely allowed to bill of discovery § 281 p. 418 
 
 which may be disregarded at hearing § 299 p. 445 
 
 of pleading, how far State practice respecting, is followed § 360 p. 530 
 of judgments by courts that rendered them .... § 379 pp. 501-562 
 
 of bond given on removal of cause § 385 p. 574 
 
 in Supreme Court of the United States § 391 p. 587 
 
 of petition, after removal of cause to Federal court ... § 391 p. 587 
 pleading, " " " " "... § 391 p. 587 
 
 bond, " " " " "... §391 p. 587 
 
 writ of error § 399 p. 603 
 
 of injunction order pending appeal § 402 pp. 600-007 
 
 decree by Supreme Court after decision § 409 p. 623 
 
 See also Correction of Decree otherwise than by Appeal. 
 AMENDMENTS TO CONSTITUTION, 
 
 seventh § 4 p. 6 
 
 eleventh § 3 p. 5; § 37 pp. 71-77; § 38 p. 77 
 
 fourteenth . . ' § 15 p. 22 
 
 AMOUNT IN CONTROVERSY, 
 
 that it is not large enough to give court jurisdiction, a 
 
 ground of demurrer § 108 p. 175 
 
 See Matter in Dispute; also Value. 
 
 ANCILLARY JURISDICTION. 
 
 See Jurisdiction. 
 
 ANCILLARY RECEIVERS, 
 
 defined, principles regulating appointment of . . § 242 pp. 346-317 
 
 ANOMALOUS PLEA, 
 
 defined § 124 p. 189 
 
 ANOTHER SUIT PENDING, 
 
 objection of, can be raised by demurrer § 108 p. 176 
 
 subject of plea in defense § 129 pp. 193-190
 
 710 INDEX. 
 
 ANSWER, 
 
 a mode of objecting to want of parties § 61 pp. 105-106 
 
 exceptions for impertinence not to be taken after . . . § US p. 116 
 as a mode of objecting to multifariousness in bills ... § 75 p. 126 
 
 waiving, in the oath § 81 p. 138 
 
 as evidence § 84 p. 138 
 
 to bill without objection to want of signature, a waiver . § 86 p. 141 
 
 demurrer cannot be filed to § 105 p. 170 
 
 defendant may demur to discovery if his answer subjects 
 
 him to a pain, penalty, or forfeiture § 109 p. 177 
 
 objections which can be taken by § 109 p. 178 
 
 when to be filed § 111 pp. 178-171) 
 
 with pleas § 137 pp. 202-204 
 
 filing after a hearing upon plea § 142 pp. 209-210 
 
 when bill may be amended before § 164 p. 240 
 
 amendment of § 167 pp. 242-244 
 
 irregular practice to unite with cross-bill in same pleading § 172 p. 252 
 
 to supplemental bill § 189 p. 275 
 
 losing right to demur to petition for intervention by in- 
 terposing an answer § 202 p. 292 
 
 adverse parties may file answer denying the fact stated in 
 
 the petition, or setting up other facts in avoidance . . § 202 p. 293 
 
 when receiver may be appointed before § 252 p. 377 
 
 effect of consent to extend time to answer, on time to re- 
 move cause § 385 p. 575 
 
 removal of cause after § 385 p. 575 
 
 may be treated as an amendment to a petition, after re- 
 moval of cause to Federal court § 391 p. 587 
 
 ANSAVERS AND DISCLAIMERS, 
 
 pleading defenses in an answer § 144 pp. 211-212 
 
 requisites of answer, what may be pleaded in . . § 144 pp. 211-212 
 
 defenses peculiar to patent cases § 145 pp. 212-216 
 
 impertinence and scandal in § 147 pp. 216-217 
 
 admissions and denials independent of discovery . § 146 pp. 215-216 
 
 discovery § 148 pp. 217-221 
 
 when to be filed § 149 p. 221 
 
 proceedings to compel answer § 149 p. 221 
 
 frame of answer and formal requisites § 150 pp. 221-223 
 
 signature and oath to answer § 151 pp. 223-224 
 
 motions to take answers off the file § 152 pp. 224-225 
 
 exceptions for insufficiency § 153 pp. 225-227 
 
 supplemental answers § 154 p. 228 
 
 disclaimers § 155 pp. 228-229 
 
 form of § 155 p. 229 
 
 ANTICIPATED DEFENSE, 
 
 counter averments to avoid § 76 p. 127 
 
 APPEAL, 
 
 demurrer for joinder of improper parties cannot be raised 
 
 for first time on § 62 p. 107 
 
 objections for multifariousness cannot be taken for the first 
 
 time upon § 75 p. 126
 
 INDEX. 711 
 
 APPEAL — continued. 
 
 from final decree taking bill pro confesso § 104 p. 169 
 
 right of new parties brought in by intervention to ... § 201 p. - - 
 
 from interlocutory orders § 203 p. 294 
 
 judge of Circuit or District Court has no power to enjoin 
 the enforcement of a judgment in a State court after an 
 appeal to the United States Supreme Court and a super- 
 sedeas § 211 p. 303 
 
 compensation of receivers rarely if ever increased on . . § 258 p. 385 
 on appeal to Supreme Court, no objection can be taken to 
 the admissibility of evidence not objected to in the court 
 
 below § 204 p. 395 
 
 reviewing verdict of jury upon an issue § 305 p. 452 
 
 from what decrees appeal lies § 318 p. 466 
 
 does not lie from order committing for contempt ; if such 
 
 order is void habeas corpus will lie §344 p. oO. 
 
 correction of decree otherwise than by §350 p. 513 
 
 in habeas corpus proceedings § 368 pp. 548-549 
 
 rulings of court on trial where jury is waived by consent, 
 
 reviewable on § 374 p. 554 
 
 how far findings reviewable on appeal, when special . . § 374 p. 554 
 cause improperly removed to Federal court may be re- 
 manded even after appeal §393 p 
 
 or writ of error to decision remanding a cause ... § 393 p. 59U 
 See also Writs of Error and Appeals. 
 APPEARANCE, 
 
 generally, waives service of subpoena § 93 p. 150 
 
 defined § 99 p. 161 
 
 general, special and gratis § 99 p. 161 
 
 what constitutes § 100 p. 161 
 
 effect of § 101 P- 162 
 
 when must be made § 102 pp. 162-103 
 
 effect upon removal of cause, of want of general appear- 
 ance in Federal court § 391 p. 
 
 general appearance in Supreme Court, when a waiver of 
 
 failure to serve citation on defendants in error ... § 399 p. 604 
 APPLICATIONS TO THE COURT. 
 
 See Interlocutory Applications and Petitions. 
 APPOINTMENT OF RECEIVER. 
 
 See Receiver. 
 APPRAISEMENT, 
 
 of goods taken in execution under writ of fieri facias . . § 3S0 p. 563 
 ARBITRATORS, 
 
 making parties to suits against principals § 43 p. S3 
 
 ARGUMENT, 
 
 setting demurrer down for § 120 p. 184 
 
 of demurrer, practice upon § 121 pp. 18 1-1 85 
 
 of plea §140 pp. 20( 
 
 of motions, practice upon § 198 p 285 
 
 notice of, how fair State practice respecting, is followed . § 300 p. 
 of appeals and writs of error in the Supreme Court § 408 pp. 619-623
 
 712 INDEX. 
 
 ARIZONA, 
 
 time within which cause to be docketed in United States 
 Supreme Court, in case of appeals and writs of error 
 from § 403 p. G08 
 
 ARKANSAS, 
 
 divided into two districts § 26 p. 36 
 
 counties and times and places of 
 holding court therein enumer- 
 ated § 26 pp. 36-37 
 
 districts of, included within Eighth Circuit § 204 p. 295 
 
 ARRANGEMENT, 
 
 of causes of action not ground of equitable jurisdiction . § 12 p. 17 
 ARREST, 
 
 whether injunction can be obtained to restrain illegal . . § 215 p. 310 
 
 of prisoner upon a second warrant pending hearing upon 
 
 a return to a writ of habeas corpus § 367 p. 547 
 
 in civil actions, when permitted § 370 p. 550 
 
 See also Ne Exeat Republica. 
 ART, 
 
 injunctions to restrain publication of works of .... § 206 p. 297 
 ASSESSMENTS, 
 
 bill to collect § 7 p. 9 
 
 State statutes imposing, upon streets § 7 pp. 9-10 
 
 ASSIGNEE, 
 
 in bankruptcy or insolvency cannot enforce collateral obli- 
 gation given creditor § 12 p. 18 
 
 of debentures for drawback of duties, jurisdiction of 
 
 suits by § 15 p. 22 
 
 jurisdiction of suits by § 24 pp. 32-33 
 
 when assignor a necessary party to suit by § 44 p. 84 
 
 suits by and against. See Parties. 
 ASSIGNMENT, 
 
 removal of cause in case of colorable § 384 p. 571 
 
 ASSISTANCE, 
 
 writ of. See Enforcement of Decrees and Orders. 
 ASSOCIATION, 
 
 citizenship of members, how determined § 19 p. 26 
 
 when members of unincorporated, are necessary parties to 
 
 suits affecting § 45 p. 88 
 
 AS SOON THEREAFTER AS COUNSEL CAN BE HEARD, 
 
 words usually employed in notices of motion § 197 p. 283 
 
 ATTACHMENT, 
 
 to compel answer § 149 p. 221 
 
 of property § 369 p. 549 
 
 effect upon, of removal of cause to Federal court ... § 392 p. 588 
 
 to enforce orders and decrees § 341 pp. 502-504 
 
 See also Enforcement of Decrees and Orders. 
 ATTENDANCE, 
 
 of witnesses §§ 275-277 pp. 411-413
 
 INDEX. 713 
 
 AT THE OPENING OF COURT, 
 
 words usually employed in notices of motion .....§ 197 p. 283 
 
 ATTORNEYS, 
 
 making parties to suits against principals § 43 p. 83 
 
 See also Counsel. 
 
 ATTORNEYS' FEES, 
 
 which are taxable as costs, amounts § 330 pp. 481-483 
 
 belong to party, and not to the attorney § 330 p. 483 
 
 ATTORNEY-GENERAL, 
 
 allegations in bill to impeach patent or other grant in ac- 
 tion not brought by § 76 p. 128 
 
 motions on behalf of § 197 p. 2S4 
 
 injunctions to restrain corporations at suit of .... § 207 p. 298 
 information by, to enjoin public nuisance § 214 p. 308 
 
 AUCTION, 
 
 sales at public, by masters § 316 p. 4G3 
 
 AUCTIONEERS, 
 
 making parties to suits against principals § 43 p. 83 
 
 AVOIDING DECREES, 
 
 bills for § 359 pp. 527-528 
 
 B. 
 
 BACON, LORD CHANCELLOR, 
 
 labors of, in widening jurisdiction of courts of equity . . § 1 p. 2 
 
 practice in time of, respecting the granting of injunctions 
 
 to quiet the possession before heariug § 209 p. 302 
 
 BAIL, 
 
 admitting prisoner to, pending hearing upon a return to 
 
 writ of habeas corpus § 367 p. 547 
 
 upon enlarging time in appellate court in habeas corpus . § 368 p. 519 
 given in cause prior to removal to Federal court, effect 
 
 of removal on same § 392 p. 58S 
 
 on allowance of writ of error, in Circuit Court to review 
 
 conviction had in District Court ........§ 404 p. 612 
 
 BAILIFF'S ACCOUNTING § 11 p. 14 
 
 BALANCE, 
 
 decree for, in foreclosure of mortgage § 325 p. 476 
 
 BANK, 
 
 of what State national is regarded a citizen § 19 p. 27 
 
 appointment of receiver of property of national .... § 240 p. 344 
 BANKING ASSOCIATION, 
 
 introducing in evidence certificate of organization of nat- 
 ional § 268 p. 399 
 
 BANKRUPT, 
 
 when necessary party to suit by or against assignee . . § 15 p. 86
 
 714 INDEX. 
 
 BANKRUPTCY, 
 
 jurisdiction of District Courts of matters and proceedings 
 
 in § 25 p. 31 
 
 injunction staying proceedings in other courts authorized 
 
 by a law relating to proceedings in § 211 p. 303 
 
 BE AMES, 
 
 work of, on pleas referred to in discussing subject of nega- 
 tive pleas § 121 p. 190 
 
 on policy of interposing pleas § 113 p. 210 
 
 BELIEF, 
 
 stating facts upon information and, in bill ..... § 67 p. Ill 
 BENEFICIARY, 
 
 under trust, jurisdiction of equity over § 2 p. 3 
 
 bill by § 11 p. 13 
 
 when necessary parties to suits affecting trust property . § 15 p. 86 
 
 allowing to intervene in suits affecting trust property . . § 201 p. 291 
 See also Cestui Que Trust. 
 
 BIDS, 
 
 at masters' sales § 316 p. 161 
 
 BIGAMY, 
 
 writ of error to review conviction of bigamy in Supreme 
 
 Court of Utah " § 391 p. 593 
 
 BILL, 
 
 creditor's bill § 2 p. 1 
 
 for examination of witnesses abroad § 2 p. 1 
 
 for injunction § 2 p. 1 
 
 of discovery . . § 2 p. 1 
 
 to compel cancellation of documents § 2 p. 1 
 
 to compel execution of instrument § 2 p. 1 
 
 to perpetuate testimony § 2 p. 1 
 
 to prevent claim on title § 2 p. 1 
 
 for cancellation of usurious securities § 6 p. 9 
 
 to set aside will for fraud § 6 p. 9 
 
 to quiet title to land, State statute authorizing § 7 p. 9 
 
 to set aside probate of will § 7 p. 9 
 
 against executors and administrators § 9 p. 11 
 
 to set aside or stay proceedings under judgment of State 
 
 court § 9 p. 11 
 
 by legatee against executors §11 p. 12 
 
 by married woman § 11 p. 12 
 
 by municipal corporation to enjoin sale of property in exe- 
 cution § 11 p. 12 
 
 by next of kin against administrator § 11 p. 12 
 
 by United States to enforce priority of payment . . . §11 p 12 
 
 by United States to cancel land patent § 11 p. 12 
 
 against debtor of trust estate § 1 1 p. 13 
 
 against trustee • § 11 p. 13 
 
 by bondholder § 11 p. 13 
 
 by municipal bondholder . § 1 1 p. 13 
 
 by stockholder § 11 p. 13
 
 INDEX. 715 
 
 BILL — continued. 
 
 for specific performance of contract for sale of corporate 
 
 stock § 11 p. 13 
 
 to cancel marriage contract § 11 p. 13' 
 
 to reform instrument § 1 1 p. 13 
 
 to set aside contract entered into while intoxicated . § 11 p. 13 
 
 to set aside contract obtained by fraud § 11 p. 13 
 
 to collect alimony § 11 pp. 1:3-14 
 
 to enforce decree § 11 pp. 13-14 
 
 to set aside judgment § 11 p. 14 
 
 for accounting § 11 pp. 14-15 
 
 to quiet possession under land patent § 11 p. 15 
 
 against President of United States § 12 p. 15 
 
 by coupon holder ..." § 12 p. 16 
 
 by State § 12 p. 16 
 
 by taxpayer § 12 p. 16 
 
 to compel levy of tax § 12 p. 16 
 
 to obtain possession of personal property ,• . § 12 p. 16 
 
 to obtain possession of real property § 12 p. 16 
 
 to quiet title § 12 p. 16 
 
 to enjoin libels, when sustained § 12 p. 17 
 
 for reformation of policy, when ancillary § 21 p. 28 
 
 to set aside judgment or decree for fraud . . § 12 p. 18; § 21 p. 29; 
 
 § 358 pp. 526-527 
 
 •who may be parties to §§ 28-41 pp. 04-80 
 
 necessary parties to, in suit against surety ; guarantor . § 42 p. 82 
 upon ancestor's covenants . § 42 p. 82 
 
 informations under English practice § 63 p. 108 
 
 relator " " " §63 p. 108 
 
 distinctions between information and bill § 63 p. 108 
 
 effect of death of relator upon proceedings § 63 p. 108 
 
 filing of bill by government of United States .... § 63 p. 109 
 
 information by " " " § 63 p. 109 
 
 informations in courts of some of the States . . § 63 p. 109 
 
 definition and classification of bills §64 pp. 109-111 
 
 into original, not original, 
 bills in the nature of 
 original, original bills 
 in the nature of bills 
 not original . . . . § 61 p. 110 
 when court will take jurisdiction of bills not original . . § 64 p. Ill 
 ordinary kind, which seek relief concerning right, claimed 
 
 by plaintiff in opposition to defendant § 64 p. Ill 
 
 frame of bill generally considered, clauses enumerated . § 65 p. Ill 
 common confederacy clause no longer deemed essential . § 65 p. Ill; 
 
 § 79 p. 133 
 charging part " " " . §65 p. Ill; 
 
 §80 p. 131 
 jurisdiction clause " " § 65 p. Ill; § 81 p. 134 
 
 that plaintiff is without remedy at law, statement of, no 
 
 longer necessary § 05 p. 112; §81 p. 131
 
 716 INDEX. 
 
 BILL — continued. 
 
 address and introduction, rules relative to, and form of § 66 pp. 112-113 
 taking advantage of omission as to residence of parties 
 
 and other defects in address and introduction ... § 66 p. 113 
 
 narrative or stating part of bill § 67 pp. 113-114 
 
 drawn without reference 
 
 to technical rules . . § 67 p. 114 
 to contain all facts essen- 
 tial to plain tiff's cause 
 
 of action § 67 p. 1 14 
 
 scandal and impertinence § 68 pp. 114-116 
 
 certainty . § 69 pp. 116-117 
 
 not necessary to charge admissions specifically 
 
 in order to give them in evidence .... § 69 p. 117 
 
 inconsistency and bills with a double aspect . . . . § 70 pp. 117-119 
 
 asking for relief 
 in alternative, 
 
 when allowed § 70 p. 117 
 
 multifariousness, in general § 71 pp. 119-120 
 
 defined § 71 p. 119 
 
 by misjoinder of plaintiffs § 72 pp. 120-122 
 
 who can be properly united as plaintiffs ... § 72 p. 121 
 privity between plaintiffs usually essential ; excep- 
 tions § 72 p. 121 
 
 by misjoinder of defendants § 73 pp. 122-124 
 
 without misjoinder of parties § 74 pp. 124-126 
 
 objections for multifariousness § 75 pp. 126-127 
 
 special provisions of the Federal equity rules and prac- 
 tice as to bills • - § 76 pp. 127-128 
 
 plaintiff may by counter averments avoid anticipated 
 
 defense § 76 p. 127 
 
 but special replications not allowed § 76 p. 127 
 
 reason for omitting proper parties to be averred . . § 76 p. 127 
 suits by stockholders and other persons founded on 
 
 rights assertable by corporation § 76 p. 127 
 
 allegations as to jurisdiction § 76 p. 128 
 
 allegations as to value of matter in dispute .... § 76 p. 128 
 
 allegations in bills to impeach patent or other grant . § 76 p. 128 
 
 allegations as to permission from attorney-general § 76 p. 128 
 
 bills to enjoin the infringement of patents . . . . § 77 pp. 129-131 
 
 general rules of equity pleading as to bills . . . . § 78 pp. 131-133 
 
 interrogatory clause, rules pertaining to § 82 p. 13o 
 
 prayer for relief " " " § 83 pp. 136-137 
 
 form of §83 pp. 136-137 
 
 waivers and offers in § 84 pp. 137-140 
 
 prayer of process § 85 pp. 140-141 
 
 what to contain § 85 p. 140 
 
 signature § 86 p. 141 
 
 affidavits to, when required § 87 p. 142 
 
 bills of interpleader, who may file, and contents of . . § 88 pp. 142-146 
 
 in the nature of interpleader § 89 p. 147
 
 INDEX. 717 
 
 BILL — continued. 
 
 bills of certiorari § 90 pp. 146-147 
 
 when may be amended § 101 p. 234 
 
 ■when copy of, required to be furnished § 161 p. 235 
 
 injunction not prayed for in § 229 pp. 327-328 
 
 to perpetuate testimony § 279 pp. 413-416 
 
 to take testimony de bene esse § 280 p. 416 
 
 of discovery § 281 pp. 416-418 
 
 when amended may be disregarded at hearing .... § 299 p. 445 
 
 dismissal of, upon hearing § 300 p. 445 
 
 without hearing §§ 291-295 pp. 434-440 
 
 amendment of, see Amendments. 
 
 for subjects of, see Jurisdiction; see also Cross-Bills; Parties; Taking 
 Bills Pro Confesso ; Dismissing Bills otherwise than at a 
 Hearing; Correction of Deckee otherwise tiian by Appeal. 
 
 BILL OF COSTS. See Taxation. 
 
 BILLS OF EXCEPTIONS, 
 
 principles relative to § 377 pp. 559-560 
 
 BILLS OF EXCHANGE, 
 
 injunctions to restrain negotiation or indorsement of . . § 210 p. 302 
 transfers of § 212 p. 305 
 
 BILLS OF LADING, 
 
 how far decisions of State courts relative to, are binding 
 
 upon Federal tribunals § 375 p. 557 
 
 BILL OF PEACE, 
 
 necessary parties to § 44 p. 84 
 
 denned, characteristics § 209 pp. 301, 302 
 
 BILLS OF REVIEW, 
 
 jurisdiction of § 21 p. 28 
 
 definition and characteristics of §§ 351-356 pp. 518-525 
 
 BILLS IN THE NATURE OF BILLS OF REVIEW § 357 pp. 525-526 
 
 BILLS OF REVIVOR, 
 
 by what acts suits are abated § 174 pp. 255-256 
 
 effect of abatement § 175 pp. 257-258 
 
 when a suit may be revived, and effect of revivor . § 176 pp. 258-259 
 
 who may revive a suit § 177 pp. 259-260 
 
 manner of revivor, in general § 178 pp. 260-261 
 
 definition and parties to bills of revivor . . . . § 179 pp. 261-262 
 
 frame of, and requisites § 180 pp. 262-263 
 
 proceedings upon § 181 pp. 263-264 
 
 bills in the nature of bills of revivor in general . . § 1 S2 pp. 266-267 
 
 frame of, and proceedings thereupon . . . . § 1S3 pp. 207-268 
 
 bills of revivor and supplement, definition and requisites § 184 p. 208 
 
 supplemental bills in the nature of bills of revivor . § 185 pp. 20S-2G9 
 
 what renders a suit defective § 180 pp. 209-270 
 
 supplemental bills § 1S7 pp. 270-272 
 
 parties and frame of § 1S8 pp. 272-273 
 
 proceedings upon § 1S9 pp. 273-276 
 
 bills hi the nature of supplemental bills, in general § 190 pp. 276-277 
 
 frame and requisites of § 191 p. 277 
 
 proceedings upon § 192 pp. 277-278
 
 718 INDEX. 
 
 BILLS OF REVIVOR AND SUPPLEMENT. 
 See Bills of Revivor. 
 BILLINGS, JUDGE, 
 
 on power of courts to enjoin criminal proceedings, or mat- 
 ters in their nature criminal § 211 p. 304 
 
 BLIND PERSON, 
 
 how to verify affidavit § 270 p. 40G 
 
 BOND, 
 
 when required upon injunction by State statute .... § 6 p. 9 
 
 by receiver § 256 p. 381 
 
 filed with petition for removal secures right to costs . . § 327 p. 480 
 how far decisions of State courts relative to municipal 
 
 bonds are binding upon Federal tribunals § 375 p. 557 
 
 on removal of cause § 385 p. 572 
 
 on removal of cause to Federal court, amendment of . . § 391 p. 588 
 given in a cause prior to removal to Federal court, effect 
 
 of removal on same § 392 p. 588 
 
 See also Security ; Undertaking. 
 BOND ON REPLEVIN, 
 
 inability to give, no ground of equitable relief .... § 12 p. 17 
 
 BONDHOLDER, 
 
 bill by .... § 11 p. 13 
 
 suit by, against State § 37 p. 76 
 
 suits by plaintiff on behalf of himself and others similarly 
 
 situated § 47 p. 89 
 
 when trustees of railroad mortgage need not be made par- 
 ties to foreclosure suit by § 51 p. 95 
 
 obtaining injunction in suit affecting corporation ... § 207 p. 299 
 
 of corporations, appointing receivers at suit of . ... § 240 p. 344 
 
 BOOKKEEPER, 
 
 of corporation, when might be made party to suit against 
 
 corporation under English practice § 43 p. 82 
 
 BOOKS, 
 
 introduction of, in evidence § 268 pp. 398-406 
 
 production of, on trial § 372 p. 552 
 
 BRADLEY, JUSTICE, 
 
 on the practice of taking bills pro confesso . . . §104 pp. 165-168 
 
 on powers of receivers of railroads § 246 pp. 361-362 
 
 on compensation of receivers § 258 p. 385 
 
 BREACH OF CONFIDENCE, 
 
 defendant may demur to bill if his answer would involve a § 109 p. 177 
 
 BREACH OF CONTRACT, 
 
 injunctions to prevent § 210 p. 302 
 
 injunctions to prevent, in matters not affecting land § 220 pp. 318-319 
 
 BREWER, JUDGE, 
 
 on the duties of receivers of railroads operating the same § 246 pp. 363-365 
 
 BRIDGE, 
 
 contract to build, when not specifically empowered ... § 12 p. 20
 
 INDEX. 719 
 
 BRIEFS, 
 
 to be filed with clerk, and furnished to counsel on oppo- 
 site side § 408 p. 620 
 
 what to contain §408 pp. 620-02 1 
 
 See also State of Facts. 
 BRINGING ON REFERENCE, 
 
 before master . § 309 p. 455 
 
 BRINGING SUIT TO A HEARING. 
 
 See Hearing. 
 BURDEN OF PROOF, 
 
 in suits or informations where seizures are made pursuant 
 to an act providing for or regulating collection of duties 
 on imports or tonnage § 268 p. 405 
 
 CALENDAR, 
 
 of motions § 198 p. 286 
 
 bringing suit to a hearing § 296 p. 441 
 
 precedence of appeals on § 408 p. 619 
 
 CALIFORNIA, 
 
 divided into two districts § 26 p. 37 
 
 counties and times and places of 
 holding court therein enumer- 
 ated § 26 p. 37 
 
 districts of, included within Ninth Circuit § 204 p. 296 
 
 time within which cause to be docketed in United States 
 Supreme Court in case of appeals or writs of error 
 
 from § 403 pp. 608-609 
 
 CALVERT, 
 
 quotation from work of, on parties § 54 p. 102 
 
 CAMPBELL, LORD, 
 
 description by, of former English practice of bringing mo- 
 tions to a hearing § 198 p. 2S5 
 
 CANCELLATION, 
 
 of instruments § 2 p. 4 
 
 CAPACITY TO SUE, 
 
 objection to want of, raised by plea § 127 p. 191 
 
 CAPITAL CRIME. 
 
 See Criminal Prosecution. 
 CAPITAL PUNISHMENT, 
 
 writ of error in cases of § 394 p. 593 
 
 See Criminal Prosecution ; Writs of Error and Appeals. 
 CARRIER, 
 
 receiver of railroad, a common carrier § 250 p. 373 
 
 how far decisions of State courts relative to common car- 
 riers are binding upon Federal tribunals § 375 p. 557 
 
 See also Corporation.
 
 720 INDEX. 
 
 CAUSE PETITIONS, 
 
 so-called because made in a cause § 199 p. 288 
 
 CERTAINTY, 
 
 in bills § 69 pp. 116-117 
 
 bill deficient in, demurrable § 108 p. 176 
 
 CERTIFICATES, 
 
 of receivers § 247 p. 365-368 
 
 exemplifying books and papers to be used in evidence . . § 268 p. 404 
 
 of division of opinion §391 p. 594; § 396 pp. 597-598 
 
 clerk to authentication of record on appeal § 403 p. 607 
 
 CERTIFICATE OF COUNSEL, 
 
 to accompany all demurrers § 118 p. 183 
 
 must support plea § 136 p. 202 
 
 CERTIFICATES OF INDEBTEDNESS, 
 
 suits by holders of, on behalf of others § 49 p. 92 
 
 CERTIFICATION, 
 
 by District Court, of question of general importance, — for 
 purposes of appeal § 394 p. 592 
 
 CERTIORARI, 
 
 bills of, practice respecting § 90 pp. 146-147 
 
 writs of § 365 p. 540 
 
 to State court to make return of record, after removal of 
 
 cause to Federal court § 390 p. 583 
 
 for a diminution of record § 403 p. 610 
 
 pending writ of, for diminution of the record, the hearing 
 
 of the cause on appeal is usually adjourned § 403 p. 610 
 
 CESTUI QUE TRUST, 
 
 jurisdiction over § 2 p. 3 
 
 when necessary parties to suits affecting trust property . § 45 p. 86 
 See also Beneficiary. 
 
 CHANCELLORS, 
 
 length of foot, the ancient measure of equity § 1 p. 1 
 
 labors of the early, in widening jurisdiction in equity ... § 1 p. 1 
 does not exercise prerogative of sovereign as parens jmtrice § 5 p. 6 
 this prerogative not in Federal courts § 5 p. 6 
 
 CHANCERY, 
 
 rules of equity founded in practice of High Court of . . . § 1 p. 1 
 jurisdiction in equity of Federal courts generally the 
 
 same as that in the English court of § 5 p. 6 
 
 practice in High Court of, adopted by rule 90 of United 
 
 States Supreme Court § 26 p. 57 
 
 CHANGE OF RESIDENCE, 
 
 purpose of, does not prevent change of citizenship ... § 20 p. 27 
 
 CHARGE, 
 
 State statute limiting powers of judge to comment on the 
 facts in charge to jury, or directing that such charge be 
 
 in writing, effect of, in Federal court § 374 p. 556 
 
 when trial judge may comment upon the facta .... § 374 p. 556 
 
 general exception to, when unavailing § 377 p. 560 
 
 exception to refusal of court to charge § 377 p. 560
 
 INDEX. 721 
 
 CHARGING PART, 
 
 of bill, counter-averments to avoid anticipated defense 
 
 formerly included in § 76 p. 127 
 
 no longer necessary . . * § 80 p. 134 
 
 See also Bills. 
 CHARITY, 
 
 necessary parties to suit brought by one entitled to, on be- 
 half of himself and others similarly situated .... § 47 p. 90 
 
 informations filed on behalf of § 63 p. 108 
 
 liberal amendments in favor of § 160 p. 234 
 
 CHARTERS, 
 
 injunctions to restrain corporations from violating 
 
 their § 207 pp. 298-300 
 
 party whose land has been taken by corporation under 
 power of eminent domain may obtain injunction for 
 using such lands for purpose not allowed by company's 
 
 charter § 207 p. 299 
 
 CHATTEL, 
 
 injunction to restrain alienation of a specific .... § 210 p. 302 
 injunctions to prevent sales and transfers of .... § 212 p. 306 
 CIRCUITS, 
 
 enumerated and described § 204 pp. 295-296 
 
 CIRCUIT COURTS, 
 
 original jurisdiction of § 15 pp. 21-23 
 
 subjects of, enumerated . . § 15 pp. 21-23 
 special limitation upon jurisdiction for Southern District 
 
 of New York § 23 p. 32 
 
 territorial jurisdiction of, and terms of holding ... § 26 pp. 35-56 
 
 rules of practice promulgated by § 27 pp. 56-57 
 
 what judges may grant orders in § 204 p. 295 
 
 clerk's fees in § 331 pp. 484-488 
 
 See also Costs. 
 
 appeals to, in habeas corpus proceedings § 368 p. 518 
 
 have no power to enact rules regulating the taking of tes- 
 
 t timony § 372 p. 552 
 
 jurisdiction of, in condemnation proceedings to acquire 
 
 real estate for United States Government § 381 p. 565 
 
 proceedings in, after removal of cause to § 3S5 p. 572 
 
 review of judgments and decrees on instance side of, when 
 
 deciding causes of admiralty and maritime jurisdiction § 394 p. 591 
 appeals and writs of error from, where one of the parties 
 
 is deac l § 397 p. 600 
 
 writ of error is a writ of the Supreme Court, though is- 
 sued from a Circuit Court § 399 p. 603 
 
 review by, of judgments and decrees of District 
 
 Courts §368 p. 548; § 104 pp. 610-612 
 
 See also Removal of Causes ; Writs of Error and Afpeals. 
 CITATION, 
 
 to defendants in error § 309 p. 603 
 
 failure to serve, when ground of dismissing case ... § 399 p. 60 1 
 
 how waived § 399 p. 604 
 
 46
 
 722 INDEX. 
 
 CITATION — continued. 
 
 on appeal, when unnecessary § 401 p. 605 
 
 on writ of error issued by a Circuit Court to a District 
 
 Court § 404 p. 611 
 
 on writ of error from Supreme Court to State Court . . § 405 p. 615 
 
 CITIZENS, 
 of different States, jurisdiction of Federal Courts in con- 
 troversies between § 18 p. 26 
 
 of what State corporation regarded as a § 19 p. 26 
 
 " " national bank " " § 19 p. 27 
 
 of District of Columbia § 19 p. 26 
 
 of what State a corporation is presumed to be . . . . § 60 p. 112 
 if party desiring to intervene in a suit is citizen of same 
 State as one of the defendants, that will usually not de- 
 prive the court of jurisdiction § 201 p. 290 
 
 CITIZENS OF THE UNITED STATES, 
 
 suits to secure the rights of citizens of the United States § 15 pp. 21-22 
 
 CITIZENSHIP, 
 
 how determined § 19 pp. 26-27 
 
 as affecting jurisdiction of Federal courts .... § 19 pp. 26-27 
 
 of unincorporated association § 19 p. 26 
 
 not determined by residence § 19 p. 27 
 
 of members of voluntary association § 45 p. 88 
 
 costs when action is dismissed for want of jurisdiction for 
 
 lack of difference of citizenship § 327 p. 480 
 
 See also Removal of Causes ; Residence. 
 
 CITIZENSHIP OF FORMAL PARTIES, 
 
 does not affect jurisdiction § 18 p. 62 
 
 CITY, 
 
 bill by, to establish right to levy duty § 49 p. 92 
 
 See also Municipal Corporation. 
 
 CIVIL LAW, 
 
 source of equitable practice and jurisprudence § 1 p. 1 
 
 practice of taking libels pro confesso § 104 p. 166 
 
 CIVIL RIGHTS, 
 
 laws; acts § 15 pp- 21-22 
 
 CIVIL RIGHTS LAWS, 
 
 practice in removal of cases arising under ... § 3S9 pp. 582-583 
 writ of error in any action founded upon § 394 p. 593 
 
 CLAIMS, 
 
 Court of § 36 p. 70 
 
 appeals from judgments of Court of § 394 p. 592 
 
 See also Court of Claims. 
 certain claims preferred out of funds in hands of receivers 
 
 in railroad foreclosure suits § 243 p. 354 
 
 CLARENDON, 
 
 labors of, in widening jurisdiction of courts of equity ... § 1 p. 2
 
 INDEX., 723 
 
 CLASS, 
 
 suits against one or more of a, proper parties in . . . § 48 pp. 90-91 
 suits by or against one or more persons as representatives 
 
 of a class claiming a common right § 49 pp. 91-92 
 
 suits on behalf of members of. See also Intervention. 
 
 CLAUSES, 
 
 of bills. See Bills. 
 
 CLERICAL ERROR, 
 
 See also Correction of Decree otherwise than by Appeal. 
 CLERK, 
 
 direction to enter appearance §100 p. 101 
 
 writs of error directed to § 399 p. 603 
 
 approval of bond on writ'of error cannot be delegated by 
 
 judge to clerk § 400 p. 604 
 
 undertaking to, for fees, by plaintiff in error, on docket- 
 ing cause and filing record in United States Supreme 
 
 Court § 403 p. 610 
 
 no security for fees to clerk of Supreme Court of United 
 States required in writs of eiTor in criminal prosecu- 
 tions § 403 p. 610 
 
 CLERK'S FEES, 
 
 in Supreme Court § 331 p. 484 
 
 in Circuit and District Courts § 331 pp. 484-489 
 
 CLIENT, 
 
 costs as between solicitor and § 336 pp. 497-498 
 
 CLOSING, 
 
 at hearing § 297 p. 442 
 
 argument in Supreme Court „ . . . . 408 p. 622 
 
 CLOUD UPON TITLE, 
 
 necessary parties in suits to remove. See Parties ; Bill. 
 CLUBS. See Voluntary Associations. 
 CO-DEFENDANT, 
 
 answer cannot pray relief against § 144 p. 211 
 
 whether admissions of one defendant can be used against . § 265 p. :j!)(i 
 COLLECTOR, 
 
 recovery against, execution § 3S0 p. 564 
 
 COLLUSION, 
 
 removal of receiver because original appointment was ob- 
 tained by § 259 p. 3S6 
 
 bill to impeach for § 358 p. 527 
 
 remanding cause improperly removed to Federal court . § 393 p. 5S9 
 COLLUSIVE ASSIGNMENT, 
 
 removal of cause in case of § 384 p. 571 
 
 COLLUSIVE JURISDICTION, 
 
 verification as to, in suit affecting rights assertable by 
 
 corporation § 76 p. 127 
 
 dismissal for § 293 p. 430
 
 724 JENDEX. 
 
 COLOR, 
 
 witness not to be excluded on account of ...... § 274 p. 409 
 
 COLORADO, 
 
 constitutes one judicial district § 26 p. 37 
 
 times and places of holding 
 court therein enumerated § 26 p. 37 
 districts of, included within Eighth Circuit § 204 p. 295 
 
 COLUMBIA. 
 
 See District of Columbia. 
 
 COMBINATION, 
 
 where bill specially charges, the plea to such part must be 
 
 accompanied by answer § 137 p. 203 
 
 COMMERCE, 
 
 compliance with Inter- State Commerce Act compellable in 
 
 certain cases by injunction § 222 p. 321 
 
 COMMERCIAL LAW, 
 
 what principles of, applicable in Federal courts .... § 375 p. 557 
 COMMISSION, 
 
 to take testimony. See Evidence. 
 COMMISSION OF REBELLION, 
 
 when will issue § 149 p. 221 
 
 COMMISSIONERS, 
 
 fees of. See Costs. 
 COMMITMENT, 
 
 notice of motion for process of, to be served personally . § 197 p. 283 
 
 order of § 344 pp. 506-507 
 
 COMMITTEE, 
 
 for lunatic on suit brought § 40 p. 79 
 
 COMMON CARRIER, 
 
 receiver of railroad a § 250 p. 373 
 
 how far decisions of State courts relative to, are binding 
 
 upou Federal tribunals § 375 p. 557 
 
 See also Carrier. 
 COMMON CONFEDERACY CLAUSE, 
 
 no longer necessary § 79 pp. 133-134 
 
 form of § 79 p. 134 
 
 See also Bills. 
 COMMON INJUNCTIONS. 
 
 See Injunctions. 
 
 COMMON LAW, 
 
 acts upon property, not persons § 1 p. 2 
 
 origin of § 1 P- 1 
 
 source of equitable practice and jurisprudence § 1 p. 1 
 
 desire to soften rigors of, the foundation of equity juris- 
 prudence § x P- 1 
 
 distinction between, and equity § 1 P- 2 
 
 See also Practice at Common Law. 
 COMMON-LAW PROCEDURE. 
 
 See Practice at Common Law.
 
 INDEX. 725 
 
 COMMON RIGHT, 
 
 suits by or against one or more persons as representatives 
 of a § 49 pp. 91-92 
 
 COMPELLING, 
 
 witness to testify § 277 pp. 412-413 
 
 COMPELLING ANSWER, 
 
 proceedings for § 149 p. 221 
 
 COMPENSATION, 
 
 terms as to, of receiver, imposed by court on appointment § 243 p. 347 
 
 when receiver obliged to act without § 255 p. 381 
 
 of receivers § 258 pp. 384-385 
 
 of master § yi4 p. 461 
 
 COMPETENCY, 
 
 of witnesses. See Evidence. 
 COMPETITION, 
 
 no injunction to restrain mere § 207 p. 300 
 
 See also Monopoly. 
 COMPLAINT, 
 
 trial judge no power to dismiss § 374 p. 556 
 
 judgment unconditionally dismissing, may be reviewed by 
 
 writ of error from Supreme Court to State Court . . § 405 p. G14 
 See also Bills, Parties, Pleadings. 
 COMPLETE RELIEF. See Relief. 
 COMPLIANCE, 
 
 with decree, not a waiver of right to bring appeal or error § 397 p. 001 
 COMPROMISE, 
 
 dismissing suit on, costs and fees § 331 p. 485 
 
 COMPTROLLER OF THE CURRENCY, 
 
 appointment of receiver by § 240 p. 344 
 
 introducing in evidence papers executed by § 268 p. 398 
 
 COMPULSION, 
 
 See also Duress. 
 CONCLUSION. 
 
 of decree § 325 p. 476 
 
 CONCLUSIONS OF LAW, 
 
 not to be stated in bills §69 p. 116 
 
 not to be stated in plea §124 p. 189 
 
 not to be stated in affidavits § 272 p. 408 
 
 See also Facts. 
 
 demurrer does not admit § 106 pp. 171-172 
 
 CONCURRENT JURISDICTION, 
 
 of State and Circuit Courts § 15 p. 21 
 
 dismissal of bill for failure of plaintiff to elect whether he 
 
 will proceed at law or in equity § 205 pp. 439-440 
 
 CONDEMNATION PROCEEDINGS, 
 
 for United States government, practice in . § 15 p. 22; § 26 p. 35; 
 
 § 3S1 p. 565 
 CONDITIONS, 
 
 upon enforcement of rights created by State statutes . . § 8 p. 10
 
 726 INDEX. 
 
 CONDITIONAL DECREE, 
 
 sometimes made without reference to pleadings, for the 
 
 purpose of doing equity § 84 p. 138 
 
 See also Decrees. 
 CONFORMITY, 
 
 of practice in Federal courts to State § 3G0 p. 529 
 
 CONGRESS, 
 
 exemption of members of, from service of process . . . § 98 p. 159 
 when writ of ne exeat republia cannot be issued against 
 
 members of § 2G2 p. 390 
 
 introducing in evidence extracts from the journal of the 
 
 Senate or of the House of Representatives § 268 p. 400 
 
 recovery against officer of either House of ; execution § 380 pp. 564-565 
 removal to Federal court of action against person on ac- 
 count of anything done while an officer of either House 
 
 of § 383 p. 569 
 
 practice on removal of suits against officers of either 
 
 House of § 388 pp. 580-582 
 
 CONNECTICUT, 
 
 constitutes one judicial district § 26 p. 37 
 
 . times and places of hold- 
 ing court therein enum- 
 erated § 26 p. 37 
 
 the districts of, included within the Second Circuit . . § 204 p. 295 
 
 CONSENT, 
 
 to relief sought as affecting necessary parties . . . § 55 pp. 102-103 
 
 decrees entered upon, what to be stated in § 325 p. 474 
 
 dismissal of suit on, costs and fees § 331 p. 485 
 
 amendment of order or decree entered by § 351 p. 514 
 
 a case of which the Federal court could not otherwise 
 take jurisdiction cannot be removed from State court 
 
 by § 383 p. 570 
 
 effect of consent to extend time to answer on time to re- 
 move cause § 3S5 p. 575 
 
 cause which was properly removed to Federal court can- 
 not be remanded on consent § 393 p. 589 
 
 party cannot appeal from decree which does not injure 
 
 him, or which was entered upon consent § 397 p. 601 
 
 submission of cases by § 408 p. 619 
 
 CONSIDERATION, 
 
 inadequacy of § 11 p. 13 
 
 CONSOLIDATION OF SUITS, 
 
 common-law procedure respecting § 360 p. 529 
 
 at law and in equity § 371 p. 550 
 
 CONSPIRACY, 
 
 not grounds for bill in equity to recover damages alone . § 12 p. 17 
 
 CONSTITUTION, 
 
 as affecting jurisdiction of Federal courts § 3 pp. 4-5 
 
 distinctions made by, between law and equity .... § 4 pp. 5-0
 
 INDEX. 727 
 
 CONSTITUTION — continued. 
 
 suits arising under § 15 p. 21 § 17 p. 25 
 
 to redress deprivation, right, privilege, or immunity 
 
 secured by § 15 p. 21 
 
 liability of States to suits by private persons under . § 37 pp. 71-77 
 
 suits of one State against another, under §38 pp. 77-78 
 
 power of Congress to enact law allowing in a single spe- 
 cified suit against a corporation chartered by it, mat- 
 ters and defendants to be joined, in a manner that 
 would otherwise constitute multifariousness . . . . § 75 p. 128 
 exemption under, of certain Federal officers from process § 98 p. 159 
 proceedings in a State court cannot be enjoined merely 
 
 because taken under a State statute repugnant to the . § 211 p. 303 
 writs of error, in any case, in Circuit or District Court, 
 brought on account of the deprivation of any right or 
 
 privilege secured by the § 394 p. 593 
 
 review by writ of error, of decision of State court affecting § 394 p. 501 
 writs of error to State courts in cases affecting the ... § 4l)5 p. 012 
 See also Contract. 
 CONSTITUTIONAL LAW, 
 
 rulings involving, upon hearing § 298 pp. 443-444 
 
 State statutes regulating procedure in Federal courts, 
 
 effect of § 374 pp. 555-55G 
 
 State statutes excludiug corporations from doing business 
 
 within their limits § 383 p. 570 
 
 CONSTRUCTION, 
 
 of State statute by State court, how far binding upon 
 
 Federal tribunals § 375 p. 558 
 
 CONSTRUCTIVE ADMISSIONS. 
 
 See Evidence. 
 
 CONSTRUCTIVE FRAUD, 
 
 as a subject of equitable jurisdiction § 2 p. 3 
 
 CONSTRUCTIVE TRUSTS, 
 
 as subjects of equitable jurisdiction § 2 p. 3 
 
 CONSULS, 
 
 jurisdiction of cases affecting § 3 pp. J-5 
 
 original jurisdiction of United States Supreme Court in 
 
 controversies affecting § 14 pp. 20-21 
 
 jurisdiction of District Courts in suits against .... § 25 p. 34 
 introducing in evidence copies of papers in the office of a . § 208 p. 401 
 
 CONTAGIOUS DISEASE, 
 
 provisions as to holding terms of United States Supreme 
 
 Court in case of § 26 p. 35 
 
 CONTEMPT, 
 
 notice of motion for process of, to be served personally . § 197 p. 283 
 
 party in, restricted to certain motions § 197 p. 284 
 
 receiving fees by counsel assigned to person suing in 
 
 forma pauperis, a § 200 p. 289 
 
 interference with receiver a § 249 p. 371
 
 728 INDEX. 
 
 CONTEMPT — continued. 
 
 witness refusing to testify, a § 277 pp. 412-413 
 
 common-law procedure respecting § 360 p. 529 
 
 jurisdiction of Federal courts to punish acts committed 
 
 before removal of cause § 392 p. 589 
 
 See also Enforcement of Decrees and Orders. 
 CONTEMPT PROCEEDINGS, 
 
 •when amendment of a bill discharges . • § 162 p. 237 
 
 CONTINUANCE, 
 
 executor or administrator becoming party entitled to a . § 373 p. 553 
 See also Postponement. 
 
 CONTRACT, 
 
 relief in equity against § 2 p. 3 
 
 when not specifically enforced § 12 p. 19 
 
 to build bridge when not specifically enforced .... § 12 p. 20 
 
 bills to contain no unnecessary recitals of § 68 p. 114 
 
 alternative relief in action affecting §70 p. 118 
 
 injunction to enforce specific performance of, affecting 
 
 land § 208 pp. 300-301 
 
 injunctions to compel the performance or prevent the 
 
 breach of § 210 p. 302 
 
 injunctions to compel performance or prevent breach of, 
 
 not affecting land §220 pp. 318-319 
 
 injunction to restrain defendant from violating negative 
 
 promise contained in a § 220 p. 319 
 
 with receiver § 245 p. 360 
 
 how far decisions by State courts upon the law of contracts 
 
 by corporations are binding upon the Federal courts . § 375 p. 557 
 how far construction of, by State courts will be followed in 
 
 Federal tribunals § 375 p. 5.j8 
 
 CONTRIBUTION, 
 
 as a subject of jurisdiction in equity § 2 p. 4 
 
 CONTRIBUTORY NEGLIGENCE, 
 
 how far decisions of State courts upon law of, are binding 
 
 upon the Federal tribunals § 375 p. 557 
 
 CONTROVERSY, 
 
 between citizens of different States § 17 p. 25 
 
 how determined . . § 18 p. -6 
 
 CONTUMACIOUS WITNESS, 
 
 compelling to testify § 277 pp. 412-413 
 
 CONVERSION, 
 
 of property, not ground for bill in equity • § 12 p. 17 
 
 CONVICT, 
 
 time of, to bring appeal or writ of error § 398 p. 602 
 
 time to review judgment of District Court by Circuit Court 
 
 in case of a § 404 p. 611 
 
 See also Criminal Prosecutions. 
 
 CONVICTION. 
 
 See Criminal Prosecutions.
 
 INDEX. 729 
 
 COPY, 
 
 of bill, when to be furnished § 161 p. 235 
 
 books, records, or papers, how introduced in evidence § 268 pp. 398-406 
 whether clerk can charge for copy made by attorney . . § 3-Jl p. 4b6 
 
 COPYRIGHT, 
 
 effect of State statutes of limitation upon § 8 p. 10 
 
 reached by creditor's bill § 11 p. 14 
 
 necessary parties to suit by equitable assignees of . . . § 44 p. S4 
 
 bill for infringement of, what to contain § 8i p. 139 
 
 injunction to restrain infringement of §210 p. 302; §216 pp. 310-314; 
 
 §217 pp. 314-317 
 writs of error to review decrees concerning § 394 p. 593 
 
 CORAM NOBIS, 
 
 writ of error, when allowed § 379 pp. 561-562 
 
 CORPORATIONS, 
 
 individual liability of stockholders § 7 p. 9 
 
 franchises not forfeited by bill in equity filed by private 
 
 citizen § 12 p. 19 
 
 not enjoined at suit by stranger from act ultra vires ... § 12 p. 19 
 
 bill by stockholder against § 12 pp. 19-20 
 
 chartered by Congress, jurisdiction- of suits by or 
 
 against § 15 p. 21; § 17 p. 25 
 
 of what State regarded as a citizen . . § 19 p. 26; §66 pp. 112-113 
 
 of what State deemed to be a resiieut §22 p. 30 
 
 jurisdiction over foreign § 22 p. 30 
 
 who to be made parties in suit against, under English 
 
 practice § 43 p. 82 
 
 when stockholders are necessary parties to suits affecting . § 15 p. 88 
 parties to suit by stockholder, on behalf of himself and 
 
 others similarly situated § 47 p. 89 
 
 suing stockholders of, as representing a class § 48 p. 90 
 
 if party to bill, law of State creating same to be stated § 66 pp. 112-113 
 allegation that defendant corporation is about to exceed 
 
 its powers insufficient; facts to be shown § 69 p. 116 
 
 alternative relief asked for in suit affecting interest in . § 70 p. 118 
 power of Congress to pass law allowing, in a single specified 
 suit against corporation chartered by it, matters and de- 
 fendants to be joined in a manner that would otherwise 
 
 constitute multifariousness § 75 p. 126 
 
 necessary averments in suits affecting rights assertable by § 76 p. 127 
 
 suits affecting, when to be verified § 87 p. 142 
 
 service of subpoenas on § 95 pp. 153-155 
 
 unincorporated association suing as, ground of de- 
 murrer § 108 p. 171 
 
 discovery cannot be required of §118 p. 219 
 
 but can be required to answer fully §148 p. 220 
 
 answer by §151 pp. 223-224 
 
 allowing stockholders to intervene in suits affecting . . § 201 p. 291 
 injunctions to restrain corporations from violating their 
 charters § 207 pp. 298-300
 
 730 INDEX. 
 
 CORPORATIONS — continued. 
 
 ■when receiver of property of, will be appointed .... § 240 p. 344 
 
 suits in the name of, by receiver § 249 p. 369 
 
 •whether should be required by order to produce books and 
 
 papers on trial § 372 p. 553 
 
 how far decisions of State courts upon the law of contracts 
 
 by corporations are binding upon Federal tribunals . . § 375 p. 557 
 agreement by, not to remove into Federal court any suit 
 
 brought against it within a State § 383 p. 570 
 
 exclusion of, by State from doing business ■within its 
 
 limits § 383 p. 570 
 
 See also Parties. 
 
 CORPORATION TRUSTS, 
 
 Lord Hatherly on § 207 p. 298 
 
 CORRECTION, 
 
 of judgments by courts that rendered them . . . § 379 pp. 561-562 
 
 CORRECTION OF DECREE OTHERWISE THAN BY APPEAL, 
 
 in general § 350 p. 513 
 
 amendment upon petition without a rehearing . . § 351 pp. 513-514 
 
 petitions for rehearing § 352 pp. 514-517 
 
 practice upon § 352 pp. 514-517 
 
 supplemental bills in the nature of bills of review . §353 pp. 517-518 
 
 bills of review § 354 pp. 518-520 
 
 provisions peculiar to, for matters of fact 
 
 newly discovered § 355 pp. 520-521 
 
 provisions common to both kinds of bills of 
 
 review ... § 356 pp. 521-525 
 
 bills in the nature of bills of review . § 357 pp. 525-526 
 bills to impeach decrees on account of fraud . . . § 358 pp. 526-527 
 
 collusion ... § 358 p. 527 
 
 surprise .... § 358 p. 527 
 
 bills to suspend or avoid the operation of decrees . § 359 pp. 527-528 
 
 COSTS, 
 
 making persons parties to suits to mulct for § 43 p. 82 
 
 in cases of fraud, persons sometimes allowed to be made 
 
 parties only to be mulcted in .... § 43 p. 83 
 
 practice of taking the, according to length of bills, the 
 
 origin of the common confederacy clause § 65 p. 112 
 
 payment of as condition for leave to amend, on objection 
 
 for multifariousness being sustained § 75 p. 127 
 
 payment of, when to form a subject of prayer for relief . § 83 p. 137 
 
 on overruling demurrer .§122 pp. 185-186 
 
 sustaining " §123 pp. 186-187 
 
 on argument of plea § 140 p. 206 
 
 dismissing bill with, where a disclaimer is made and it 
 
 appears that defendant was made a party without 
 
 reason § 155 p. 228 
 
 amending bill as of course without payment of costs . . § 161 p. 234 
 
 suit will not be revived merely for § 176 p. 258 
 
 making of separate motions discouraged as to .... § 197 p. 2S5
 
 INDEX. 731 
 
 COSTS — continued. 
 
 not decreed under English practice against pauper . . . §200 p. 290 
 
 but if successful, court might allow him full § 200 p. 290 
 
 plaintiff dismissing his bill without costs §291 p. 434 
 
 practice respecting, on references § 311 p. 456 
 
 definition, and distinction between costs at law and in 
 
 equity § 326 p. 477 
 
 to whom costs will be awarded §327 pp. 477-481 
 
 classification of costs § 328 p. 481 
 
 costs between party and party §329 p. 481 
 
 attorney's fees enumerated, and amounts .... § 330 pp. 481-483 
 
 belong to party § 330 p. 483 
 clerk's fees, Supreme Court of the United States ... § 331 p. 484 
 
 Circuit and District Courts § 331 pp. 484-488 
 
 marshal's fees, Supreme Court of the United States . . § 332 p. 489 
 
 « generally § 332 pp. 489-490 
 
 witness' fees § 303 pp. 491-494 
 
 miscellaneous disbursements § 334 pp. 494-496 
 
 commissioner's fees • § 334 p. 496 
 
 costs out of a fund § 335 pp. 496-497 
 
 as between solicitor and client § 336 pp. 497-498 
 
 taxation of costs § 337 p. 498 
 
 security for « §338 pp. 498-499 
 
 common-law procedure respecting § 360 p. 530 
 
 upon remand of cause improperly removed to Federal 
 
 court " §393 pp. 589-590 
 
 imposed upon a remand § 393 p. 590 
 
 security for, not required in writs of error in criminal 
 
 prosecutions §403 p. 610 
 
 imposed for unnecessary printing of record § 407 p. 619 
 
 See also Security for Costs; Terms. 
 COTTENHAM, LORD, 
 
 opinion of, upon giving leave to amend upon allowing 
 
 demurrer • • • § 123 p. 1S7 
 
 COUNSEL, 
 
 signature of, to bill § 86 p. 141 
 
 failure of, to sign bill demurrable § 108 p. 176 
 
 certificate of, to accompany all demurrers § 118 p. 183 
 
 certificate of, must support plea §136 p. 202 
 
 signature of, to answer §151 pp. 223-224 
 
 signature of, to replication § 159 p. 233 
 
 signature of, to amended bill § 162 p. 236 
 
 signature of , to cross-bill §172 p. 252 
 
 signature of, to bill of revivor § ISO p. 263 
 
 as soon thereafter as counsel can be heard, words usually 
 
 employed in notices of motion § 497 p. 283 
 
 when to sign notice of motion § 197 p. 2S3 
 
 former English practice respecting, as to argument of 
 
 motions by • • § 198 p 285 
 
 assigning under English practice to petitioner suing in 
 forma pauperis § 200 p. 289
 
 732 INDEX. 
 
 COUNSEL — continued. 
 
 when fees of, required to be paid by party desiring to in- 
 tervene § 201 p. 290 
 
 when signature of, necessary to petition for intervention . § 202 p. 292 
 
 whom receiver may not retain as § 250 p. 373 
 
 allowances to, in receiverships § 257 p. 384 
 
 agreements between, must be reduced to writing or made 
 
 in open court § 265 p. 3'.>G 
 
 presence of, at taking of testimony § 284 p. 420 
 
 on hearing § 297 p. 441 
 
 time allowed, on argument in Supreme Court .... § 408 p. 622 
 
 COUNSEL FEES, 
 
 when payable out of fund in court § 336 pp. 497-498 
 
 COUNTER AVERMENTS, 
 
 to avoid anticipated defense § 76 p. 127 
 
 COUNTERCLAIMS, 
 
 when included in estimation of matter in dispute ... § 16 p. 24 
 See also Set-Off. 
 
 COUPON, 
 
 judgment in suit to collect § 395 p. 595 
 
 COUPON HOLDER, 
 
 bill by § 12 p. 16 
 
 See also Stockholder. 
 
 COURT, 
 
 opening of, words usually employed in notices of motion § 197 p. 283 
 See the special tribunal desired. 
 
 COURT FUNDS, 
 
 petition for payment of § 199 p. 288 
 
 COURT OF CLAIMS, 
 
 equitable jurisdiction of § 12 p. 20 ; § 36 p. 69 
 
 procedure in certain cases § 36 p. 70 
 
 appeals from judgments of § 394 p. 592 
 
 by whom allowed § 401 p. 605 
 
 upon what record appeals from Court of Claims are heard § 401 p. 605 
 within what time appeals from, may be submitted on con- 
 sent § 408 p. 619 
 
 COVENANT, 
 
 against ancestor, who necessary parties to a bill to enforce § 42 p. 82 
 injunctions to enforce specific performance of, relative to 
 
 land § 208 pp. 300-301 
 
 CRANWORTH, LORD CHANCELLOR, 
 
 rule of, as to pleading statute of frauds § 131 p. 198 
 
 CREDITOR, 
 
 of estate, not to be joined as party with receiver ... § 45 p. 86 
 of insolvent debtor, when necessary parties to suit 
 
 brought by or against insolvent debtor § 45 p. S6 
 
 necessary parties to suits by on behalf of himself and 
 
 others similarly situated § 47 p. 90 
 
 filing bill of revivor § 177 p. 259 
 
 of corporation, obtaining injunction § 207 p. 299 
 
 of corporation, appointment of receiver in suits of . . . § 240 p. 344
 
 index. 733 
 
 CREDITOR'S BILL, 
 
 as a subject of equity § 2 p. 4 
 
 State law authorizing § 7 p. 10 
 
 equitable jurisdiction over § 11 p. 13-14; §12 p. 18 
 
 CREW, 
 
 necessary parties to suit brought by one on behalf of him- 
 self aud others similarly situated to recover prize mouey § 47 p. 90 
 See also Prize Causes. 
 CRIME. 
 
 See Criminal Prosecution; Habeas Corpus. 
 
 CRIMINAL PROSECUTION, 
 
 defendant in certain cases obliged to answer a charge of 
 
 fraud which might subject him to a § 109 p. 178 
 
 injunctions will not be issued to stay . . . § 12 p. 17; § 211 p. 304 
 to what extent common-law procedure followed in . . . § 3G0 p. 530 
 against revenue officer, removal to Federal court ... § 383 p. 568 
 removal to Federal court generally, of criminal prosecu- 
 tions, where accused is denied rights guaranteed by law 
 providing for equal rights of citizens of the United 
 
 States § 383 p. 569 
 
 against revenue officers and officers of either House of 
 
 Congress, practice upon removal to Federal court § 388 pp. 580-582 
 practice on removal of cases arising under civil rights 
 
 laws § 389 pp. 582-583 
 
 writ of error to Supreme Court of United States in . . § 394 p. 593 
 
 time to take out writ of error in § 398 p. 602 
 
 no security required upon a writ of error to a judgment 
 of conviction of a capital crime in a court of the United 
 
 States § 400 pp. 604-605 
 
 no security required to clerk of Supreme Court of United 
 
 States for fees on writ of error in § 403 p. 610 
 
 review in Circuit Court of convictions had in District 
 
 Courts §404 p. 611 
 
 writs of error in, entitled to preference on hearing ... § 4U8 p. 619 
 
 CROSS APPEALS, 
 
 argued as one case § 408 p. 622 
 
 CROSS-BILLS, 
 
 in the nature of original bills § 61 p. 110 
 
 definition and origin of § 109 p. 246 
 
 when should be filed § 170 pp. 246-217 
 
 not be filed § 171 pp. 247-250 
 
 frame and requisites of § 172 pp. 250-252 
 
 who can file § 172 p. 252 
 
 proceedings upon §173 pp. 252-2.">l 
 
 may be sustained as a petition of intervention .... §201 p. 291 
 defendant cannot usually move for appointment of re- 
 ceiver before decree unless he has filed cross-bill pray- 
 ing for one § 253 p. 378 
 
 as to right to appeal from decree dismissing § 398 p. 602
 
 734 
 
 INDEX. 
 
 CURTIS, JUDGE, 
 
 ruling of, as to whether judgment of foreign courts can be 
 
 pleaded in bar § 132 p. 198 
 
 on assessment of damages under injunction § 237 p. 339 
 
 on powers of Federal courts to amend writs of error . . § 399 p. G03 
 
 CUSTODY OF COURT, 
 
 when it begins § 9 p. 11 
 
 when it terminates § 9 pp. 11-12 
 
 D. 
 
 DAMAGES, 
 
 independently of other equitable relief, not usually recov- 
 ered by bill in equity ' § 12 p. 17 
 
 necessity of alleging special, to obtain injunction ... § 207 p. 300 
 
 liability of receiver § 251 p. 375 
 
 reference to master to assess § 300 p. 446 
 
 costs where master reports in favor of plaintiff for nominal 
 
 damages § 327 p. 479 
 
 DANIELL'S CHANCERY PRACTICE, 
 
 quotation from, on statement of causes in demurrer . . § 115 p. 1S1 
 
 form of oath, quoted from § 151 p. 224 
 
 on creditors filing bills of revivor § 177 p. 259 
 
 practice as to supplemental bills in cases of personal repre- 
 sentatives § 187 p. 271 
 
 on amending petitions for intervention § 202 p. 293 
 
 quotation from, on receiver's sureties ......§ 256 p. 383 
 
 DATING, 
 
 decree § 325 p. 474 
 
 DEATH, 
 
 of relator, effect of, upon proceedings § 63 p. 108 
 
 action abating by, of plaintiffs §174 p. 255 
 
 of party pending appeal or writ of error § 397 p. 599 
 
 effect of death of party before time allowed for taking ap- 
 peal or bringing writ of error has expired § 397 p. 599 
 
 abatement of suits by. See Abatement and Revivor ; Bills of 
 Revivor. 
 
 DE BENE ESSE, 
 
 issuing subpoena in case of taking . . §275 p. 411 
 
 bills for taking testimony § 2S0 p. 416 
 
 depositions de bene esse under the Acts of Congress . § 28G pp. 424-426 
 
 DEBENTURES, 
 
 for drawback of duties, jurisdiction of suits by assignees 
 
 of §15 p. 22 
 
 DEBT, 
 
 when part of value of matter in controversy § 395 p. 596 
 
 DEBTOR. 
 
 See Insolvent Debtor.
 
 INDEX. 735 
 
 DECEDENT'S ESTATE, 
 
 suits relating to § 11 pp. 12-14 
 
 DECISIONS, 
 
 how pleaded § 08 p. 115 
 
 rules of, upon a hearing § 298 p. 112 
 
 weight of , upon a hearing §298 p. Ill' 
 
 rules of, in trials at common law § 375 p. 556 
 
 distinguished from decree for purposes of appeal ... § 398 p. 602 
 of appeals and writs of error, by Supreme Court, power 
 
 of, upon § 409 pp. 623-G24 
 
 DECLARATORY PART, 
 
 of decree § 325 p. 474 
 
 DECREE, 
 
 bill to enforce . . . § 11 pp. 13-14 
 
 jurisdiction of bill to set aside for fraud § 21 p. 29 
 
 who bound by § 42 p. 81 
 
 to provide for all the rights which different persons have 
 
 in the matters decided § 42 p. 81 
 
 all persons should be made parties to suit who are inter- 
 ested in § 42 p. SI 
 
 as against absent parties, or such as are without the juris- 
 diction § 50 pp. 92-93 
 
 bills impeaching, upon the ground of fraud § 64 p. 110 
 
 bills to suspend operation of, on special circumstances . § 64 p. 110 
 bills to avoid, on the ground of matter subsequent ... § 64 p. 110 
 bills to obtain a judicial construction of a previous ... § 04 p. Ill 
 
 bills to set aside § 64 p. Ill 
 
 alternative relief in action to set aside § 70 p. 118 
 
 not rendered void, by multifariousness § 75 p. 126 
 
 conditional, sometimes entered for the purposes of doing 
 
 equity § 84 p. 138 
 
 pro confesso § 101 pp. 1G5-1G9 
 
 requiring answer to obtain a proper § 149 p. 221 
 
 taking bill pro confesso, appeal from § 104 p. 109 
 
 mandatory injunctions rarely granted before a .... § 226 p. 326 
 
 discontinuance before § 291 pp. 131-435 
 
 court may make ,a final decree upon the hearing . . . . §300 p. 445 
 leave given to apply for further orders at foot of .... § 300 p. 446 
 
 definition and classification § 317 p. 466 
 
 final and interlocutory § 318 pp. 406-467 
 
 in personam § 319 pp. 467-469 
 
 in rem §320 | 
 
 absolute and conditional §321 pp. 469-470 
 
 nisi § 322 pp. 470 173 
 
 in the nature of decrees nisi § 323 p. 473 
 
 time of entry of decree $ 321 pp.473 17 1 
 
 frame of decree § 325 pp. 171-476 
 
 costs in Supreme Court of the United States upon reversal 
 
 of decree for want of jurisdiction §393 p 590 
 
 from what decrees a party may appeal § 397 p. 001 
 
 dismissing cross-bill, as to right to appeal from .... § 39S p. 602
 
 736 INDEX. 
 
 DECREE — continued. 
 
 distinguished from decision, for purposes of appeal . . § 398 p. 602 
 final, denned, for purposes of writ of error from Supreme 
 
 Court to State court § 405 p. 614 
 
 when interest awarded on affirmance of ......§ 409 p. 623 
 
 See also Writs of Errok and Appeals; Correction op Decree 
 otherwise than by appeal ; enforcement of decrees and 
 Orders ; Hearing ; Interlocutory Applications and Petitions ; 
 Judgments ; Parties. 
 DECREE OF FEDERAL COURT, 
 
 jurisdiction of bill to restrain, regulate, set aside, construe, 
 
 or enforce § 21 p. 28 
 
 DECRETAL ORDER, 
 
 defined § 203 p. 293 
 
 DEDIMUS POTESTATEM, 
 
 taking testimony by a commission under a § 285 p. 423 
 
 commissions under § 285 p. 423 ; § 288 pp. 427-428 
 
 proceedings » §289 pp. 428-431 
 
 DEEDS, 
 
 trustees under, when necessary parties to suits affecting 
 
 property covered by § 45 p. 87 
 
 bills to contain no unnecessary recitals of § 68 p. 114 
 
 alternative relief in action to set aside § 70 p. 118 
 
 by receiver § 245 p. 359 
 
 permitting master under Lord St. Leonards' Act to exe- 
 cute deed or other written instrument in the name of 
 
 a party who refuses to do so § 349 pp. 511-512 
 
 See also Grants. 
 DEFAULT, 
 
 opening, how far State practice respecting opening of, 
 
 followed § 360 p. 530 
 
 when a constructive admission § 266 p. 396 
 
 dismissing bill for want of prosecution § 292 p. 435 
 
 appeal from decree entered pro confesso § 397 p. 601 
 
 effect of no appearance for plaintiff in error, when case is 
 
 called for argument § 408 p. 622 
 
 See also Taking Bills pro Confesso. 
 DEFECTS, 
 
 which should be taken advantage of by demurrer . . . § 110 p. 178 
 
 DEFENDANTS, 
 
 who may be § 35 p. 68 
 
 who cannot be § 35 p. 68 
 
 United States ordinarily § 35 p. 68 
 
 foreign States § 35 p. 68 
 
 sovereigns, for acts done in a political ca- 
 pacity § 35 p. 68 
 
 the individual States under certain circum- 
 stances § 35 p. 68 
 
 receivers without leave § 35 p. 68 
 
 foreign executors and administrators . . § 35 p. 68 
 
 the President of the United States ... § 35 p. 68
 
 index. 737 
 
 DEFENDANTS — continued. 
 
 United States as, liability to private person .... § 36 pp. 68-71 
 
 States as, liability to private persons § 37 pp. 71-77 
 
 " " " suit by other States § 3S pp. 77-78 
 
 infants as § 39 pp. 78-79 
 
 idiots, lunatics, and persons of weak mind § 40 p. 79 
 
 married women § 41 p. 80 
 
 persons interested in relief prayed for who do not join as 
 
 plaintiffs should be made § 42 p. 81 
 
 omission from bills of such as are not within jurisdiction 
 
 of court § 50 p. 92 
 
 who can take objection to multifariousness in bills ... § 75 p. 126 
 not prevented from being witnesses in their own favor, 
 
 wh en § 84 p. 138 
 
 such persons only are, against whom process is prayed . § 85 p. 140 
 cases in which parties desiring to intervene as plaintiffs 
 
 may be made § 201 p. 291 
 
 when defendant can move for appointment of receiver . § 253 p. 378 
 removal of cause where time for removal has expired as 
 
 to one defendant § 385 p. 575 
 
 misjoinder of. See Bills. 
 
 filing of cross-bills by. See Cross-Bills. 
 
 See also Bills; Co-Defendants; Parties; Plaintiffs. 
 DEFENSE, 
 
 counter-averments to avoid anticipated § 76 p. 127 
 
 which are pleadable by way of answer §144 pp. 211-212 
 
 peculiar to patent cases § 145 pp. 211-216 
 
 DEFINITION, 
 
 of equity § 1 p. 1 
 
 DELAWARE, 
 
 constitutes one judicial district § 26 p. 38 
 
 times and places of holding 
 court therein enumerated §26 p. 38 
 districts of, included within the Third Circuit .... § 204 p. 295 
 DELAY, 
 
 dissolution of interlocutory injunction fordelay in bringing 
 
 cause to a hearing s 236 p. 338 
 
 dismissal of bills for want of prosecution .... § 292 pp. 435-436 
 
 motion to dismiss appeal or writ of error for § 406 p. 616 
 
 interest awarded where writ of error or appeal was taken 
 
 merely for § 409 p. 624 
 
 DELIVERY OF PROPERTY, 
 
 injunctions to prevent S 210 p. 302 
 
 injunctions to compel § 221 p. 319 
 
 DEMURRER, 
 
 for want of parties § 61 pp. 105-106 
 
 by defendants for joinder of improper parties . . § 62 pp. 106-107 
 
 for joinder of improper parties § 62 p. 107 
 
 " " cannot be raised for first 
 
 time on appeal ... § 62 p. 107 
 47
 
 738 INDEX. 
 
 DEMURRER — continued. 
 
 whether allowable for omissions in address and introduction 
 
 to bill § 6G p. 113 
 
 for failure to state facts in bill positively §67 p. 114 
 
 scandal and impertinence not ground of § 68 p. 116 
 
 for multifariousness . . . . § 71 p. 120 
 
 the proper mode of taking objections to bills for multi- 
 fariousness § 75 p. 126 
 
 to bill for lack of certainty § 78 p. 132 
 
 for failure to allege conformity with statute § 78 p. 133 
 
 when omission of waiver, tender, or offer is ground for . § 81 p. 140 
 
 to bill for want of signature § 86 p. 141 
 
 omission of affidavit to bill of interpleader filed by corpo- 
 ration, when ground of § 89 p. 144 
 
 definition and general characteristics . § 105 p. 170 
 
 admissions by § 106 pp. 170-172 
 
 to parts of bills § 107 pp 172-174 
 
 classification of demurrers to the relief .... § 108 pp. 174-177 
 
 to the discovery, defined and classified § 109 pp. 177-178 
 
 of what defects advantage should be taken by .... § 110 p. 178 
 
 when should be filed § 111 pp. 178-179 
 
 title of § 112 p 179 
 
 protestation § 113 p. 179 
 
 statement of the extent of §114 pp. 179-180 
 
 " " causes " § 115 pp. 180-182 
 
 demurrers ore tenus § 116 p. 182 
 
 prayer of judgment in § 117 pp. 182-183 
 
 certificate of counsel to accompany § 118 p. 183 
 
 affidavit of defendant" " §118 p. 1S3 
 
 motions to take demurrers off the file § 119 p. 183 
 
 setting demurrers down for argument §120 p. 184 
 
 argument of § 121 pp. 184-185 
 
 overruling § 122 pp. 185-186 
 
 sustaining § 123 pp. 186-187 
 
 " giving leave to amend § 123 p. 187 
 
 " Lord Cottenham's opinion § 123 p. 187 
 
 to plea, practice of filing, irregular § 140 p. 206 
 
 replication cannot be filed to a § 156 p. 230 
 
 when bill may be amended before § 164 p. 240 
 
 amendments of § 166 p. 242 
 
 to bill of revivor § 181 p. 264 
 
 to supplemental bill § 189 p. 274 
 
 objections to the form of a petition for intervention to be 
 
 taken by § 202 p. 292 
 
 injunction will not usually be granted while demurrer to 
 
 bill is pending § 228 p. 327 
 
 when a constructive admission § 266 p. 396 
 
 removal of cause after overruling § 385 p. 575 
 
 to plaintiff's pleading, where after removal to Federal court 
 
 he proceeds on wrong side of the court § 391 p. 585
 
 INDEX. 739 
 
 DENIALS, 
 
 and admissions in answer, independent of discovery § 146 pp. 215-216 
 
 DEPOSITIONS, 
 
 what is brought up, on motion to suppress § 197 p. 284 
 
 common-law procedure respecting § 360 p. 530 
 
 taken before removal of cause to Federal court, whether 
 
 witness can be compelled to sign same after removal . § 392 p. 5S9 
 
 to be embodied with record on appeal § 403 p. 607 
 
 See also Evidence ; Practice at Common Law. 
 
 DEPtlVATIVE TITLE, 
 
 setting forth in bill § 78 p. 131 
 
 DESCRIPTION, 
 
 of petitioner, to be stated in petition of intervention . . § 202 p. 292 
 
 DESTROYED DOCUMENTS AND RECORDS, 
 
 introducing copies in evidence § 268 p. 402 
 
 DIAGRAMS, 
 
 used as exhibits in court below § 403 p. 608 
 
 DIFFERENCE, 
 
 of citizenship as affecting jurisdiction §§ 17-19 pp. 25-27 
 
 of citizenship, how determined § 19 p. 26 
 
 DIRECTIONS, 
 
 receiver applying to court for § 246 p. 362 
 
 to receivers § 248 pp. 368-369 
 
 See also Instructions. 
 DIRECTOR, 
 
 when not a necessary party in suit against colleagues for 
 
 breach of trust § 52 p. 96 
 
 effort of plaintiff to secure action by, on part of stock- 
 holders, to be set forth § 76 p. 128 
 
 of corporation, appointing receiver in suits against, for 
 
 neglect of duty § 240 p. 344 
 
 of corporation, not usually appointed receiver .... § 255 p. 380 
 when stockholders can have suit discontinued as against 
 
 wishes of majority of directors § 291 p. 434 
 
 DISABILITY, 
 
 discovery cannot be required of person under § 148 p. 219 
 
 of judge, who to act in case of § 204 p. 296 
 
 DISBURSEMENTS. 
 
 See Costs. 
 DISCHARGE, 
 
 of receiver's sureties § 256 p. 382 
 
 of writ ne exeat § 263 p. 393 
 
 of receiver § 260 pp. 387-388 
 
 See also Removal. 
 DISCHARGE OF ACCUSED, 
 
 by writ of habeas corpus § 366 p. 541 
 
 DISCLAIMERS. 
 
 See Answers and Disclaimers.
 
 740 
 
 INDEX. 
 
 DISCONTINUANCE. 
 
 See Dismissing Bills otherwise than at a Hearing. 
 
 DISCOVERY, 
 
 as a subject of jurisdiction §2 p- 4 
 
 English practice allowed strangers to be made parties to 
 
 suit in certain cases for the sake of a § 43 p. 82 
 
 bills for § G4 p. 110 
 
 no person compelled to discover that which may expose 
 
 him to a penalty or forfeiture § 84 p. 140 
 
 demurrers to the § 109 pp. 177-178 
 
 when can be compelled § 109 p. 178 
 
 pleas to the § 134 p. 200 
 
 admissions and denials in answer independent of . § 146 pp. 215-216 
 
 practice as to § 148 pp. 217-221 
 
 See also Answers and Disclaimers. 
 
 bills of § 281 pp. 416-418 
 
 pendency of bill of, not a bar to a motion for nonsuit for 
 
 failing to comply with order requiring production of 
 
 books and papers § 372 pp. 552-553 
 
 See also Cross-Bills; Interrogatory Clause. 
 DISMISSAL, 
 
 of bill upon hearing . . . . § 300 p. 445 
 
 of suit by consent, costs and fees on § 331 p. 485 
 
 DISMISSING BILLS OTHERWISE THAN AT A HEARING, 
 
 dismissal of bills by the plaintiff § 291 pp. 434-435 
 
 lor want of prosecution .... § 292 pp. 435-436 
 
 " jurisdiction .... § 293 pp. 436-438 
 
 for failure to perfect or revive suit . . § 294 p. 439 
 
 for failure on plaintiff's part to elect 
 
 whether he will proceed at law or in 
 
 equity § 295 pp. 439-440 
 
 DISSOLUTION, 
 
 of interlocutory injunctions § 235 pp. 335-337 
 
 of corporation, appointment of receiver on §240 p. 315 
 
 DISTRICT ATTORNEY, 
 
 motion on behalf of § 197 p. 2S4 
 
 DISTRICT COURTS, 
 
 original jurisdiction of • § 25 pp. 34-35 
 
 subjects of " " enumerated § 25 pp. 34-35 
 
 territorial jurisdiction and terms of holding .... § 26 pp. 35-56 
 
 rules of practice promulgated by § 27 p. 57 
 
 what judges may grant orders in § 204 p. 296 
 
 clerk's fees in § 331 pp. 484-488 
 
 See Costs. 
 have no power to enact rules regulating the taking ... § 372 p. 552 
 jurisdiction of, in condemnation proceedings to acquire 
 
 real estate for United States government . § 25 p. 35; § 381 p. 565 
 review of judgments and decrees of, by Circuit Courts § 404 pp. 610-612 
 See also Writs of Error and Appeals.
 
 INDEX. 741 
 
 DISTRICT OF COLUMBIA, 
 
 courts of § 13 p. 20 
 
 whether courts of, have jurisdiction in equity .... § 14 p. 20 
 
 controversy to which citizen of, is a party § 19 p. 26 
 
 appeals from Supreme Court of § 391 p. 592 
 
 DIVISION OF OPINION, 
 
 no costs granted on § 327 p. 480 
 
 review by writ of error on certificate of §394 p. 591 
 
 certificate of § 396 pp. 597-598 
 
 DOCKET, 
 
 when plaintiff in error, or appellant to docket cause in 
 
 United States Supreme Court § 403 p. 608 
 
 failure of plaintiff in error to docket case and file record 
 
 in time § 403 p. 609 
 
 defendant in error may, if he chooses, docket the cause 
 
 and file the record § 403 p. 610 
 
 See also Calendar ; Preferences. 
 
 DOCUMENTS, 
 
 loss of, as a subject of relief in equity § 2 p. 3 
 
 bills to contain no unnecessary recitals of § 68 p. 114 
 
 See also Instruments. 
 
 DOCUMENTARY EVIDENCE. See Evidence. 
 
 DOUBLE ASPECT, 
 
 bills with § 70 pp. 117-118 
 
 DRAWBACKS OF DUTIES, 
 
 jurisdiction of suits by assignees of debentures for . . § 15 p. 22 
 
 DRUMMOND, JUDGE, 
 
 view of, as to assessing damages under injunction ... § 237 p. 339 
 
 DRUNKENNESS, 
 
 when to be specifically charged in bill § 69 p. 117 
 
 DUPLICATE WRITS § 22 pp. 30-31 
 
 DURESS, 
 
 as a subject of relief in equity § 2 p. 3 
 
 DUTY, 
 
 performance by officer not compelled by bill in equity . . § 12 p. 17 
 
 of receivers § 250 pp. 373-374 
 
 burden of proof in suits where any seizui'e is made pur- 
 suant to an act providing for, or regulating collection of 
 duties on imports or tonnage § 268 pp. 405—106 
 
 E. 
 
 EIGHTH CIRCUIT, 
 
 district included in § 204 p. 295 
 
 EJECTMENT, 
 
 assisted by injunction § 11 p. 14 
 
 jurisdiction in equity over suit for § 21 p. 29 
 
 necessary parties on filing bill to stay proceedings in . . §53 p. 101 
 State statute giving right to two trials in action of, how 
 far binding upon Federal tribunals § 375 p. 559
 
 742 INDEX. 
 
 ELDON, LORD CHANCELLOR, 
 
 labors of, in widening jurisdiction of courts of equity . § 1 p. 2 
 
 remarks of, upon parties to suits against corporations . § 43 p. 83 
 criticism of, upon Lord lledesdale's view of bills in the 
 
 nature of supplemental bills § 192 p. 278 
 
 power of courts of equity to protect patents by injunction 
 
 since time of § 216 p. 311 
 
 view of, as to foundation of power of courts of equity to 
 
 restrain by injunction infringement of copyright ... § 217 p. 314 
 
 rule of, as to form of writ of injunction § 234 p. 334 
 
 on appointment of peer as receiver § 255 p. 380 
 
 on discharge of writ ne exeat § 263 p. 393 
 
 on the manner of reviewing in equity the verdict of a jury 
 
 upon an issue § 305 p. 452 
 
 ELECTION, 
 
 under a will, as a subject of relief in equity § 2 p. 3 
 
 dismissal of bill for failure of plaintiff to elect whether he 
 
 will proceed at law or in equity § 295 pp. 439-440 
 
 ELECTIVE FRANCHISE, 
 
 removal to Federal court of suits and prosecutions on ac- 
 count of acts done uuder law relative to § 383 p. 569 
 
 EMINENT DOMAIN, 
 
 party whose land has been taken by, may obtain injunc- 
 tion against corporation for using such lands for pur- 
 poses not allowed by the corporation's charter .... § 207 p. 299 
 See Condemnation Proceedings. 
 ENACTMENT, 
 
 whether a State statute has been passed by the legislature 
 is a question as to which the Federal courts will follow 
 the decisions of such State § 375 p. 558 
 
 ENDORSEMENT, 
 
 of writ, how far State practice followed respecting ... § 360 p. 530 
 of summons " " " " "... § 360 p. 530 
 
 ENEMIES, 
 
 alien, incapable of being plaintiffs §§ 28, 30 p. 64 
 
 ENFORCEMENT OF DECREES AND ORDERS, 
 
 in general § 339 p. 500 
 
 executions §310 pp. 500-502 
 
 contempts § 341 pp. 502-504 
 
 notice of application for § 342 pp. 504-505 
 
 hearing upon § 343 pp. 505-506 
 
 order of commitment § 344 pp. 506-507 
 
 writ of attachment § 345 p. 507 
 
 execution of § 346 pp. 507-509 
 
 sequestration § 347 pp. 509-510 
 
 assistance, writ of § 348 pp 510-511 
 
 action by court itself, Lord St. Leonards' Act . . § 349 pp. 511-512 
 permitting master to execute deed or other written instru- 
 ment in the name of party who refuses to do so . § 349 pp. 511-512
 
 INDEX. 743 
 
 ENTERING AN APPEARANCE, 
 
 practice upon. See Appearance. 
 
 EPIDEMIC DISEASE, 
 
 provisions as to holding terms of United States Supreme 
 
 Court in case of § 26 p. 35 
 
 EQUAL RIGHTS, 
 
 suits under law conferring § 15 p. 21 
 
 EQUITABLE JURISDICTION, 
 
 illustrations of, in the Federal courts §§ 10-11 pp. 12-15 
 
 vested in what courts § 13 p. 20 
 
 EQUITABLE RIGHTS, 
 
 injunctions to enforce § 20G pp. 207-298 
 
 EQUITY, 
 
 new remedies adopted § 1 p. 1 
 
 origin § 1 p. 1 
 
 definition of § 1 p. 2 
 
 differences between equity and common law § 1 p. 1-2 
 
 has been in some cases followed by common law .... § 1 p. 2 
 
 when once it acquires jurisdiction, gives complete relief . § 1 p. 2 
 
 exercises control over persons § 1 p. 2 
 
 general survey of jurisdiction of § 2 p. 3 
 
 distinction between law an'd, in Federal courts .... § 4 pp. 5-6 
 
 consolidation at law and in equity § 371 p. 550 
 
 EQUITY OF REDEMPTION, 
 
 when mortgagor who has sold, is a necessary party to bill 
 
 of foreclosure § 44 p. 84 
 
 See also Foreclosure, Mortgages. 
 
 ERROR, 
 
 writ of habeas corpus to correct . ... e ..... § 362 p. 542 
 
 order granting or denying motion for new trial cannot be 
 
 reviewed upon a writ of error . . § 376 p. 559 
 
 time when execution can be issued where writ of error lies 
 
 to the Supreme Court § 380 p. 562 
 
 failure to assign, in Supreme Court, effect of § 408 p. 621 
 
 See also Mistake; Writs of Error and Appeals. 
 
 ERSKINE, LORD CHANCELLOR, 
 
 on petitions . . , § 199 p. 287 
 
 ESTATE, 
 
 costs out of § 335 pp. 496-497 
 
 ESTOPPEL, 
 
 judgment acting as, in subsequent suit § 395 p. 595 
 
 EVIDENCE, 
 
 when voluminous or tedious, not ground of equitable juris- 
 diction § 12 p. 20 
 
 judicial notice of statutes § 68 p. 115 
 
 not necessary to charge admissions specifically in bill in 
 
 order to give in evidence § C9 p. 117
 
 744 INDEX. 
 
 EVIDENCE — continued. 
 
 bill should state facts and not evidence § 69 p. 117 
 
 if plaintiff has, which would take defendant by surprise, 
 
 it should be indicated in the bill § 69 p. 117 
 
 waivers and offers in bills as § 84 p. 137 
 
 in patent cases § 145 p. 213 
 
 where proposed amendments consist of matters disclosed 
 
 by documentary § 168 p. 244 
 
 what is brought up on a motion to suppress depositions . § 197 p. 284 
 
 in general § 2G4 p. 395 
 
 admissious § 265 pp. 395-396 
 
 constructive admissions § 266 pp. 396-397 
 
 documentary, in general . § 267 pp. 397-398 
 
 Federal statutes regulating admission of § 268 pp. 398-406 
 
 affidavit, definition and use of § 269 p. 406 
 
 manner of verifying § 270 p. 406 
 
 title of § 271 p. 407 
 
 form of § 272 pp. 407-408 
 
 execution § 273 pp. 408-409 
 
 competency of witnesses §274 pp. 409-411 
 
 subpoenas ad testificandum §275 p. 411 
 
 service of § 276 p. 412 
 
 compelling witness to 
 
 testify . . . § 277 pp. 412-413 
 testimony taken in equity which may be used in other 
 
 courts § 278 p. 413 
 
 bills to perpetuate, requisites .... § 279 pp. 413-416 
 
 to take, de bene esse § 280 p. 416 
 
 bills of discovery § 281 pp. 416-418 
 
 testimony taken before cause is at issue § 282 pp. 418-419 
 
 after cause is at issue § 283 pp. 419-420 
 
 present method of taking testimony within the juris- 
 diction §284 pp. 420-423 
 
 testimony after cause is at issue, and beyond the jurisdic- 
 tion of the court § 285 p. 423 
 
 depositions de bene esse under the Acts of Congress . § 286 pp. 424-426 
 
 form of under the Acts of Congress . . § 287 pp. 426-427 
 
 dedimus poteslatem commissions issued under . § 2fc5 p 423; § 288 p 427 
 
 proceedings upon § 289 pp. 428-431 
 
 letters rogatory § 290 pp. 432-433 
 
 before master § 313 pp. 460-461 
 
 recitals of, in decrees § 325 p. 474 
 
 common-law procedure respecting § 360 p. 530 
 
 reviewed on appeal to Supreme Court § 394 p. 591 
 
 See also Practice at Common Law. 
 
 EXAMINATION, 
 
 to enable party to frame pleading § 372 p. 55- 
 
 order for examination of party before trial made prior to 
 
 removal to Federal court, effect of removal upon ... § 392 p. 589 
 EXAMINER, 
 
 testimony before. See Evidence.
 
 INDEX. 745 
 
 EXCEPTIONS, 
 
 to master's reports , . § 315 pp. 462-463 
 
 bills of, common-law procedure respecting § 360 p. 530 
 
 principles relative to bills of exceptions § 377 pp. 559-500 
 
 EXCLUSIVE JURISDICTION, 
 
 of court of probate § 7 p. 8 
 
 EXCOMMUNICATION, 
 
 plea of § 141 p. 208 
 
 EXECUTIONS, 
 
 common-law procedure respecting, also of proceedings sup- 
 plementary thereto § 360 p. 530 
 
 satisfying property not reachable on § 2 p. 4 
 
 writs of t § 310 pp. 500-502 
 
 See also Enforcement of Decrees and Orders. 
 proceedings supplementary to execution .... § 380 pp. 502-565 
 in what cases Supreme Court issues § 409 p. 623 
 
 EXECUTOR, 
 
 bill by legatee against „ § 
 
 citizenship of, as affecting jurisdiction § 
 
 capacity of foreign, to sue § 
 
 foreign, when cannot be sued § 
 
 when to be made a party to suits affecting estate ... § 
 
 when necessary party to suits § 
 
 necessary parties in suits against § 
 
 evidence in actions by or against § 274 
 
 abatement and revivor of suits § 373 pp. 553-554 
 
 right of, to appeal or bring writ of error § 397 p. 599 
 
 EXECUTORY ASSIGNMENT, 
 
 necessary parties to suit by assignee of § 44 p. 84 
 
 EXEMPLIFICATION, 
 
 of books and documents to be used in evidence .... § 268 p. 404 
 
 EXEMPTION, 
 
 from service of subpoena § 98 pp. 159-100 
 
 EXHIBITS, 
 
 to be embodied with record on appeal § 403 p. 607 
 
 models, diagrams, and exhibits of material used in court 
 below, how to be transmitted to Supreme Court of 
 United States § -103 p. 608 
 
 EXONERATION, 
 
 as a subject of jurisdiction in equity § 2 p. 4 
 
 EX PARTE, 
 
 motions made, rules respecting § 194 p. 279 
 
 appointment of receiver not usually made § 252 p. 378 
 
 application for writ of ne exeat republica may be made . . § 263 p. 391 
 
 EXPENDITURE, 
 
 by receiver § 246 p. 302; § 250 p. 373 
 
 EXPRESS TRUSTS, 
 
 as subjects of equity jurisdiction § 2 p. 3 
 
 11 
 
 V- 
 
 12 
 
 19 
 
 P- 
 
 26 
 
 31 
 
 P- 
 
 68 
 
 35 
 
 P- 
 
 68 
 
 42 
 
 P- 
 
 82 
 
 45 
 
 P- 
 
 S5 
 
 52 
 
 P- 
 
 96 
 
 »74 
 
 P- 
 
 409
 
 746 
 
 INDEX. 
 
 EXTRADITION, 
 
 habeas corpus to examine the legality of prisoner's deten- 
 tion under extradition proceedings § 360 
 
 habeas corpus in § 366 
 
 EXTRA TERRITORIAL, 
 
 jurisdiction of equity ..„...§ 1 
 
 544 
 544 
 
 F. 
 
 FACTS, 
 
 conclusions of law not to be stated in bills § 69 p. 116 
 
 trials of issues of fact in common-law actions ... § 374 pp. 554-556 
 
 findings of § 374 pp. 554-556 
 
 when trial judge may comment upon § 374 p. 556 
 
 reversals in Supreme Court for errors of fact § 394 p. 591 
 
 See also State of Facts. 
 FAILURE TO APPEAR. 
 
 See Taking Bills pro Confesso. 
 
 FEDERAL COURTS, 
 
 property in custody of § 10 p. 12 
 
 having jurisdiction in equity, enumerated § 13 p. 20 
 
 how far can interfere by injunction with matters in State 
 
 courts § 211 p. 303 
 
 See also United States Courts. 
 
 FEDERAL GOVERNMENT. 
 
 See United States. 
 FEDERAL OFFICERS, 
 
 introduction in evidence of official documents in suits 
 
 affecting § 268 p. 399 
 
 See also Congress; Revenue Officers, and other officers under respect- 
 ive titles. 
 
 FEDERAL QUESTION, 
 
 must be involved before writ of error from Supreme Court 
 
 will be issued to State court § 405 p. 613 
 
 existence of, distinctly to appear in record on writ of error 
 
 from Supreme Court to State court §405 p. 615 
 
 FEDERAL SUPREME COURT. 
 
 See Supreme Court of the United States. 
 FEE, 
 
 of counsel assigned to petitioner suing in forma pauperis . § 200 p. 289 
 
 receiver, when obliged to act without § 255 p. 381 
 
 receivers § 258 pp. 3S4-385 
 
 master § 314 p. 461 
 
 attorneys § 330 pp. 481-484 
 
 appraisers of goods taken in execution under writ of 
 fieri facias § 380 p. 563
 
 INDEX. 747 
 
 FEE — continued. 
 
 undertaking to clerk, for fees, by plaintiff in error on 
 docketing cause and filing record in United States 
 
 Supreme Court § 403 p. 610 
 
 no security required to clerk of Supreme Court of United 
 
 States for fees on writ of error in criminal prosecutions § 403 p. G10 
 See also Costs. 
 
 FEIGNED ISSUE, 
 
 when court may direct § 300 p. 446 
 
 old practice of § 304 p. 449 
 
 See also Issues at Law. 
 
 FIERI FACIAS, 
 
 appraisement of goods taken in execution under writ of . § 380 p. 563 
 
 FIFTH CIRCUIT, 
 
 districts included in § 204 p. 295 
 
 FILE, 
 
 taking bill off, for want of signature § 86 p. 141 
 
 motion to take plea off § 139 p. 205 
 
 motions to take answers off § 152 pp. 224-225 
 
 striking disclaimer off, when insufficient § 155 p. 228 
 
 moving special replication off the § 156 p. 231 
 
 removal of cause after motion to take bill off § 385 p. 575 
 
 FILING, 
 
 what constitutes a proper § 331 p. 485 
 
 FINAL DECREE, 
 
 defined, for purposes of writ of error from Supreme Court 
 
 to State court § 405 p. 614 
 
 See also Decrees. 
 FINAL INJUNCTIONS. 
 
 See Injunctions. 
 FINAL JUDGMENTS, 
 
 writs of error in § 394 p. 594 
 
 FINAL PROCESS. 
 
 See Enforcement of Decrees and Orders. 
 FINDINGS, 
 
 in common-law actions § 374 pp. 554-556 
 
 how far review on appeal may extend where jury trial is 
 
 waived and the findings are special § 374 p. 555 
 
 FIRST CIRCUIT, 
 
 districts included in § 204 p. 295 
 
 FLORIDA, 
 
 divided into two districts § 26 p. 38 
 
 counties and times and places of 
 holding court therein enu- 
 merated § 26 p. 38 
 
 districts of, included within Fifth Circuit § 201 p. 295 
 
 introducing in evidence transcripts from certain books of 
 
 the District Courts in § 208 p. 401
 
 p< 
 
 9 
 
 p- 
 
 13 
 
 p- 
 
 83 
 
 p- 
 
 96 
 
 p- 
 
 101 
 
 p- 
 
 347 
 
 p- 
 
 476 
 
 p- 
 
 606 
 
 p- 
 
 68 
 
 p. 
 
 68 
 
 74S INDEX. 
 
 FOOT, 
 
 length of chancellor's, as being the measure of jurisdiction 
 
 in equity § 1 P« 1 
 
 FOOT OF DECREE, 
 
 leave given to apply for further orders or directions at . § 300 p. 446 
 
 FORCE. 
 
 See Duress. 
 
 FORECLOSURE, 
 
 of lieu of municipal assessment § 7 
 
 by bondholder ' §11 
 
 who necessary parties to § 44 
 
 whether subsequent lienors are necessary parties to suit for § 52 
 whether prior incumbrancers are necessary parties to suit 
 
 for § 53 
 
 of railroad mortgages, rules regulating appointment of 
 
 receiver in § 243 
 
 decrees in foreclosures § 325 
 
 security required on applying for supersedeas in .... § 402 
 See also Mortgage; Equity of Redemption. 
 FOREIGN ADMINISTRATOR, 
 
 capacity of, to sue § 34 
 
 when cannot be sued § 35 
 
 FOREIGN CORPORATIONS, 
 
 jurisdiction over § 22 pp. 29-30 
 
 See also Corporations. 
 FOREIGN COURT, 
 
 power to restrain defendant from suing in § 211 
 
 FOREIGN DOCUMENTS, 
 
 translation of, to accompany record on appeal .... § 403 p. 608 
 
 FOREIGN EXECUTOR, 
 
 capacity to sue § 34 p. 68 
 
 when cannot be sued § 35 p. 68 
 
 See also Executor. 
 
 FOREIGN GOVERNMENT, 
 
 introducing in evidence documents belonging to or in the 
 
 custody of officers of § 268 p. 405 
 
 FOREIGN RECEIVERS, 
 
 when cannot be sued § 35 p. 68 
 
 capacity of , to sue § 34 p. 68 
 
 FOREIGN STATES, 
 
 when cannot be sued § 35 p. 68 
 
 FOREIGN WITNESSES, 
 
 examination of, as a subject of jurisdiction in equity . . § 2 p. 4 
 
 FORFEITURE, 
 
 as a subject of relief in equity • • § 2 p. 3 
 
 of corporate franchises not decreed by equity at suit of 
 
 private citizen § 12 p. 19 
 
 no person compelled to discover what will expose him to a § 84 p. 140 
 
 defendant may demur to bill if his answer subjects him to a § 109 p. 177 
 
 304
 
 INDEX. 
 
 749 
 
 FORGED INSTRUMENT, 
 
 form of decree setting aside ...,..§ 325 p. 476 
 
 FORMAL PARTIES. 
 
 See Parties. 
 
 FORMAL PARTIES' CITIZENSHIP, 
 
 does not affect jurisdiction § 17 p. 20 
 
 FORMA PAUPERIS, 
 
 petitions for leave to sue in §§ 199-200 pp. 288-290 
 
 FORMER ADJUDICATION, 
 
 cases once adjudicated by the Supreme Court on the merits 
 
 may be advanced on calendar §408 p. 619 
 
 FORMER PROCEEDINGS, 
 
 recitals of, in decrees § 
 
 FORMS, 
 
 address and introduction in bill § 66 
 
 interrogatory clause " " § 82 
 
 prayer for relief " " § 
 
 subpoena § 91 
 
 oath or affirmation § 
 
 disclaimer § 
 
 replication § 
 
 writ ne exeat republica § 263 pp. 392-393; 
 
 jurat § 
 
 appointment by master of day for hearing reference . . § 
 
 recitals in decree § 
 
 return by marshal upon writ of attachment for contempt 
 
 p. 471 
 
 bill in equity 
 
 praecipe for subpoena ad respondendum . . . . 
 
 subpoena 
 
 praecipe for appearance 
 
 demurrer 
 
 plea . . 
 
 answer • 
 
 disclaimer 
 
 replication 
 
 bill of revivor 
 
 notice of taking testimony 
 
 master's warrant or summons 
 
 notice accompanying draft of master's report . . 
 
 writ of habeas corpus 
 
 petition for removal from a State court to a Cir- 
 cuit Court of the United States 
 
 bond of removal 
 
 final record in equity 
 
 appeal and allowance 
 
 citation on appeal 
 
 supersedeas bond 
 
 writ of error to Federal court 
 
 " " State " 
 
 assignment of errors 
 
 prmcipe for appearance in Supreme Court . . 
 
 Appei 
 
 dix, 
 
 pp. 112-113 
 
 pp. 135-136 
 
 83 p. 137 
 
 pp. 149-150 
 
 151 p. 224 
 
 155 p. 229 
 
 159 p. 233 
 
 pp. 642-013 
 
 273 p. 409 
 
 309 p. 456 
 
 321 p. 174 
 
 316 ]>. 508 
 
 pp. 625-029 
 
 p. 630 
 
 p. 630 
 
 p. 6:31 
 
 pp. 631-632 
 
 pp. 632-033 
 
 pp. 633-0:!.") 
 
 p. 630 
 
 pp. 636-637 
 
 pp. 637-010 
 
 pp. 610-011 
 
 p. 611 
 
 ]». 012 
 
 pp. 613-614 
 
 pp. 014-045 
 pp. fi 1.1-010 
 pp. 646-647 
 pp. 617 648 
 
 p. CIS 
 
 p. 018 
 
 pp. 619-0.')O 
 
 650-651 
 
 651-fin2 
 
 p. 652 
 
 PP 
 
 pp.
 
 750 INDEX. 
 
 FOR SUCH OTHER OR FURTHER ORDER OR RELIEF AS TO 
 THE COURT SHALL SEEM JUST, 
 words usually embodied in notices of motion § 197 p. 284 
 
 FORUM ROMANUM, 
 
 quoted from, on service of subpoenas § 94 p. 152 
 
 taking bills pro confesso §104 p. 166 
 
 FOURTEENTH AMENDMENT, 
 
 suits under § 15 p. 22 
 
 FOURTH CIRCUIT, 
 
 districts included in § 204 p. 295 
 
 FRANCHISES, 
 
 of corporation, not forfeited by bill in equity filed by pri- 
 vate citizen § 12 p. 19 
 
 FRAUD, 
 
 as a subject of relief in equity § 2 p. 3 
 
 ground for bill to cancel contract § 11 p. 13 
 
 in cases of, persons sometimes allowed to be made parties 
 
 for the purpose of being mulcted in costs § 43 p. 83 
 
 bills impeaching decrees for § 64 p. 110 
 
 specific acts of, must be alleged; general charge of, in bill, 
 
 insufficient : § 69 p. 116 
 
 when to be specifically charged in bill § 69 p. 117 
 
 alternative relief in actions for § 70 p. 119 
 
 allegations as to, in bill § 78 p. 133 
 
 bill filed by United States to vacate patent for public lands 
 
 on account of § 84 p. 139 
 
 statute of frauds can be raised by demurrer § 108 p. 176 
 
 defendant in certain cases obliged to answer a charge of, 
 
 which might subject him to a criminal prosecution . . § 109 p. 178 
 when bill specially charges, the plea to such part must be 
 
 accompanied by answer § 137 p. 203 
 
 making out case of, to secure appointment of receiver . . § 241 p. 346 
 removal of receiver because original appointment was 
 
 obtained by § 259 p. 386 
 
 bills to impeach decrees on account of § 358 pp. 526-527 
 
 Federal courts follow statute of frauds in actions at com- 
 mon law § 375 p. 558 
 
 FRAUDULENT CONSPIRACY, 
 
 not ground for bill in equity to recover damages alone . . § 12 p. 17 
 
 FRAUDULENT MISREPRESENTATION, 
 
 not ground for bill in equity to recover damages alone . . § 12 p. 17 
 
 FRIVOLOUSNESS, 
 
 motion to dismiss appeals or writs of error for .... § 406 p. 616 
 
 FUNDS, 
 
 petition for payment out of the hands of an officer of the 
 
 court § 199 p. 288 
 
 costs out of § 335 pp. 496-497
 
 INDEX. 751 
 
 G. 
 
 GENERAL APPEARANCE, 
 
 defined § 99 p. 161 
 
 GENERAL AVERAGE, 
 
 account §11 p. 15 
 
 GENERAL RELIEF, 
 
 prayer for § 83 p. 136 
 
 notice of motion for § 197 p. 2S4 
 
 GEORGIA, 
 
 limitations upon jurisdiction of Federal courts in . . . note on p. 31 
 
 divided into two districts § 26 p. 38 
 
 counties and times and places of 
 holding court therein enumer- 
 ated § 26 pp. 38-39 
 
 statutory limitations of jurisdiction by residence . . note § 27 p. 58 
 
 districts of, included within Fifth Circuit § 201 p. 295 
 
 GILBERT, CHIEF BARON, 
 
 quotation from " Forum Roman um " of, on service of sub- 
 poenas § 94 p. 152 
 
 on history of taking bills pro confesso §101 p. 166 
 
 GRANTS, 
 
 of different States, suits where parties claim under ... § 20 p. 27 
 jurisdiction of Federal courts in cases of conflicting, by 
 
 different States § 20 pp. 27-28 
 
 allegations in bill to impeach grant or patent when action 
 
 is not brought by attorney-general § 76 p. 128 
 
 practice on removal of suits containing controversies be- 
 tween citizens of the same State claiming land under 
 
 grants of different States . § 3S7 p. 5S0 
 
 GRATIS, 
 
 appearance defined § 99 p. 161 
 
 when can be made § 100 p. 102 
 
 GUARDIAN AD LITEM, 
 
 when citizenship of, does not affect jurisdiction ... § 19 p. 26 
 
 of infant when and how to be appointed § 39 pp. 78-79 
 
 removal of § 39 p. 78 
 
 petition for the appointment of, for infant § 199 p. 288 
 
 evidence in actions by or against § 271 p. 409 
 
 bill not to be taken pro confesso before appointment of . § 103 p. 101 
 GUARDIAN IN SOCAGE, 
 
 accounting by § 1 1 p. 1 1 
 
 GUARDIANSHIP, 
 
 prayer for process in bills to state whether any of defen- 
 dants are under § 85 p. 110
 
 752 INDEX. 
 
 H. 
 
 HABEAS CORPUS, 
 
 followed by action for damages, whether affording ade- 
 quate remedy for illegal arrest § 215 p. 310 
 
 will lie if order committing person for contempt is void . § 341 p. 507 
 
 writ of § 366 pp. 545-548 
 
 practice on application for § 367 pp. 545-548 
 
 appeals in § 368 pp. 548-549 
 
 proceeding under, cannot be removed from a State to a 
 
 Federal court § 383 p. 570 
 
 cum causa, when issued by clerk on removal of cause in 
 
 certain cases § 388 p. 581 
 
 stay, upon appeal in habeas corpus proceeding § 402 p. 607 
 
 included within the term " suit " for the purpose of a writ 
 
 of error from Supreme Court to State court .... § 405 p. 614 
 
 HAEC VERBA, 
 
 recitals in, in bills § 68 p 114 
 
 HARDWICKE, LORD CHANCELLOR, 
 
 labors of, in extending jurisdiction of courts of equity. . § 1 p. 2 
 
 view of, as to case when numerous interests have been 
 created for the purpose of preventing plaintiff from ob- 
 taining equitable relief §54 p. 102 
 
 as to necessary parties, in case where plaintiff waives his 
 
 right against persons § 56 p. 103 
 
 on practice of taking bills pro confesso § 104 p. 166 
 
 practice in time of, respecting the granting of injunctions 
 
 to quiet the possession before hearing § 209 p. 302 
 
 on power of court to enjoin proceedings on application for 
 
 mandamus § 211 p. 304 
 
 on rehearings § 351 p. 515 
 
 HARE OX DISCOVERY, 
 
 referred to on the subject of demurrer to the discovery . § 109 p. 178 
 
 IIATIIERLY, LORD, 
 
 on injunctions restraining corporations from diverting 
 their funds from proper purposes § 207 p. 29S 
 
 HEARING, 
 
 dissolution of interlocutory injunction for delay in bring- 
 ing cause to a § 236 p. 338 
 
 bringing suit to a § 296 p. 441 
 
 manner of hearing a cause § 297 pp. 441-442 
 
 rules of decision upon a hearing § 298 pp. 442-443 
 
 objections which cannot be made upon a hearing . § 299 pp. 444-445 
 
 action of the court upon a hearing § 300 pp. 445-446 
 
 upon application for attachment for contempt . . § 343 pp. 505-506 
 writs of error in criminal prosecutions advanced to speedy 
 
 hearing § 403 p. 610
 
 INDEX. 753 
 
 HEARING — continued. 
 
 time for notice before, on writ of error from Supreme 
 
 Court to State court § 405 p. G15 
 
 preferences among appeals on calendar of Supreme Court § 408 p. 019 
 See also Dismissing Bills otherwise than at a Hearing. 
 
 HEIR, 
 
 suit against, for performance of ancestor's covenants, ne- 
 cessary parties to § 42 p. 82 
 
 HIGH COURT OF CHANCERY, 
 
 rules of equity founded in practice of § 1 p. 1 
 
 See also Chancery. 
 
 HISTORY, 
 
 of jurisdiction in equity * § 1 p. 1 
 
 of taking bills pro confesso § 104 p. 105 
 
 of replications § 150 pp. 230-231 
 
 HOFFMAN, MASTER, 
 
 report on the practice and effect of taking bills pro con- 
 fetso § 104 p. 106 
 
 HUSBAND, 
 
 when to be united with wife as plaintiff § 31 p. 05 
 
 when to be made co-defendant with wife § 41 p. 86 
 
 when may be omitted as a party in certain suits by wife . § 51 p. 95 
 
 I. 
 
 IDAHO, 
 
 time within which cause to be docketed in United States 
 
 Supreme Court in case of appeals and writs of error from § 403 p. 008 
 
 IDIOTS, 
 
 incapable of filing bills in their own right § 28 p. 64 
 
 capacity to file bills in equity §28 p. Gl; § 33 pp. 06-07 
 
 suits against § 40 p. 79 
 
 suing alone, ground of demurrer § 108 p. 174 
 
 liberal amendments in favor of §160 p. 234 
 
 appointing receiver of property of § 240 p. 344 
 
 time of, to bring appeal or writ of error § 398 p. 602 
 
 time to review judgment of District Court by Circuit Court 
 
 affecting § 404 p. 611 
 
 ILLINOIS, 
 
 divided into two districts § 20 p. 39 
 
 counties and times and places of 
 holding court therein enumer- 
 ated § 26 p. 39 
 
 districts of, included within Seventh Circuit § 204 p. 295 
 
 IMMATERIALITY, 
 
 when can be raised by demurrer § 109 p. 177 
 
 48
 
 754 INDEX. 
 
 IMPERTINENCE, 
 
 exception to bill for, the proper remedy if it contains ir- 
 relevant matter § 108 p. 17G 
 
 in answers § 147 p. 216 
 
 replication to be free from § 159 p. 233 
 
 bill improperly amended within the rule as to .... § 162 p. 236 
 
 in bills in the nature of supplemental bills § 191 p. 277 
 
 petition for intervention to be free from § 202 p. 292 
 
 in bills § 68 pp. 114-116 
 
 IMPLIED TRUSTS, 
 
 as a subject of equity jurisprudence § 2 p. 3 
 
 IMPORTS, 
 
 jurisdiction of suits to collect § 15 p. 22 
 
 INABILITY, 
 
 to give replevin bond no ground of equitable relief . . § 12 p. 17 
 
 INADEQUACY, 
 
 of remedy at law denned § 11 p. 15 
 
 See also Remedy at Law. 
 
 of consideration § 12 p. 19 
 
 INCONSISTENCY, 
 
 in bills § 70 pp. 117-118 
 
 INCONSISTENT TITLES, 
 
 persons claiming property under, should not be joined as 
 
 defendants § 44 p. 84 
 
 INDEMNITY, 
 
 required on applying for supersedeas § 402 p. 606 
 
 See also Security. 
 INDIANA, 
 
 constitutes one judicial district § 26 p. 39 
 
 times and places of hold- 
 ing court therein enu- 
 merated § 26 pp. 39-40 
 
 statutory limitations of jurisdiction by residence in note § 27 pp. 58-59 
 districts of, included within Seventh Circuit § 204 p. 295 
 
 INDIANS, 
 
 whether a tribe of, constitutes a foreign State .... § 38 p. 78 
 INDIVIDUAL LIABILITY, 
 
 of stockholders in corporations § 7 p. 9 
 
 INDORSEES, 
 
 jurisdiction of Federal courts in actions by § 24 p. 33 
 
 INDORSEMENT, 
 
 of writ of injunction § 234 p. 335 
 
 INDORSMENT OF NOTES, 
 
 injunctions to restrain . . . , , § 210 p. 302 
 
 INFAMOUS CRIME, 
 
 denned § 366 p. 543 
 
 INFANTS, 
 
 suit by next friend or guardian § 19 p. 26 
 
 capacity to file bills in equity in their own right § 28 p. 64 ; § 32 p. 65
 
 INDEX. 755 
 
 INFANTS — continued. 
 
 as defendants § 39 p. 78 
 
 prayer for process in bills to state whether any defendant 
 
 is an infant § S3 p. 140 
 
 whether hill can be taken pro confesso against .... §103 p. 161 
 
 suing alone, ground of demurrer § 108 p. 171 
 
 objection that plaintiff is an infant raised by plea . . . §127 p. 191 
 
 discovery cannot be required of § 148 p. 219 
 
 liberal amendments in favor of §100 p. 231 
 
 petition for appointment of guardian for, and to maintain 
 
 infant out of his property § 199 p. 2S8 
 
 suing or defending in forma pauperis §200 p. 288 
 
 when receiver of property of, will be appointed .... §210 p. 344 
 next friend of, should not be appointed receiver of the 
 
 property of § 255 p. 380 
 
 in what case admissions in an answer made on behalf of 
 
 infant can be used against him § 2G5 p. 395 
 
 impeaching a decree improperly obtained against . . . § 358 p. 527 
 
 time of, to take appeal or bring writ of error § 398 p. 602 
 
 time to review judgment of District Court by Circuit 
 
 Court, affecting § 404 p. 611 
 
 INFORMATION, 
 
 upon whose behalf a motion under an, can be made . . § 197 p. 284 
 
 to enjoin public nuisance § 214 p. 308 
 
 See also Bills. 
 
 INFORMATION AND BELIEF, 
 
 stating facts upon, in bill § 67 p. 114 
 
 INFRINGEMENT, 
 
 of patents, bills to enjoin § 77 pp. 129-131 
 
 IN HA EC VERBA, 
 
 bills to contain no unnecessary recitals § 08 p. 114 
 
 INJUNCTION, 
 
 practice in granting, how far influenced by State statute . § 7 pp. 9-10 
 
 authorized by State statute § 7 p. 10 
 
 against sale of municipal property under execution . . §11 p. 12 
 
 pending ejectment §11 p. 14 
 
 against collection of State tax § 12 p. 16 
 
 against seizures of personal property § 12 p. 16 
 
 against libels rarely granted § 12 p. 17 
 
 against act by corporation ultra vires, not granted at suit of 
 
 stranger § 12 p. 10 
 
 slanders rarely if ever enjoined § 12 p. 17 
 
 not granted against criminal proceedings §12 p, 17 
 
 against removal of State or municipal officer § 12 p. 17 
 
 when not granted against judgment at law § 12 p. 18 
 
 against action at law . § 12 p. 18 
 
 value of matter in dispute in suit for § 16 p. 24 
 
 person against whom sought, not a formal party .... § 51 p. 90 
 to restrain infringement of patents, allegations in bills § 77 pp. 120-131 
 
 prayer for relief in cases of § 83 p. 136
 
 756 INDEX. 
 
 INJUNCTION — continued. 
 
 if asked for in prayer for relief, need not be repeated in 
 
 prayer for process ... § 85 p. 140 
 
 when amendment of bill does not dissolve § 162 p. 237 
 
 when granted of course § 196 p. 281 
 
 when motion for receiver can be made upon motion for an § 197 p. 284: 
 
 definition, classification, and objects of § 205 p. 297 
 
 judicial writs, writs remedial, mandatory, prohibitory, 
 
 provisional, perpetual, common, and special ... § 205 p. 297 
 injunctions to enforce trusts and other purely equitable 
 
 rights § 206 pp 297-298 
 
 preventing disclosure of secret pro- 
 cesses, restraining publication of let- 
 ters, manuscripts, &c. . . . § 206 pp. 297-298 
 to restrain corporations from violating their 
 
 charters § 207 pp. 29S-300 
 
 to enforce the specific performance of cove- 
 nants and other contracts affecting land § 208 pp. 300-301 
 to restrain a multiplicity of suits . . § 209 pp. 301-302 
 to prevent irreparable injury for which the 
 
 remedy at law is inadequate; in general . §210 p. 302 
 
 to stay proceedings in other courts . . § 211 pp. 302-305 
 
 distinguished from writs of prohibition §211 p. 303 
 
 to restrain the alienation of property . § 212 pp. 305-306 
 
 to prevent waste §213 pp. 306-307 
 
 11 continuance of a nuisance . § 214 pp. 307-308 
 
 trespass § 215 pp. 309-310 
 
 " infringement of patents . § 216 pp. 310-314 
 
 authorized by inherent power 
 
 and by revised statutes . . § 216 p. 310 
 
 " infringement of copyrights . § 217 pp. 314-317 
 
 " unlawful use of trademarks § 218 pp. 317-318 
 
 " opening of letters §219 p. 318 
 
 compel the performance or prevent the 
 breach of contracts not affecting land 
 
 § 220 pp. 318-319 
 compel the delivery of personal prop- 
 erty tortiously withheld § 221 p. 319 
 
 authorized by statute § 222 pp. 319-321 
 
 when injunctions will not issue §223 pp. 321-324 
 
 distinction between the judicial writ and the writ remedial § 224 p. 324 
 " " mandatory and prohibitory injunc- 
 tions § 225 pp. 324-325 
 
 " " provisional and perpetual injunc- 
 tions § 226 pp. 325-326 
 
 " " common and special injunctions . . § 227 p. 326 
 time and place of application for interlocutory injunc- 
 tions §228 pp. 326-327 
 
 injunctions not prayed for in the bill § 229 pp. 327-328 
 
 special practice and regulations of the Federal courts in 
 
 the issue of injunctions § 230 pp. 328-330
 
 INDEX. 757 
 
 INJUNCTION — continued. 
 
 notice of application for interlocutory injunction . § 231 pp. 330-331 
 affidavits upon application for an injunction, requisites § 232 pp. 331-333 
 rules of decision upon applications for interlocutory injunc- 
 tions § 233 pp. 333-33 1 
 
 the writ of injunction requisites § 234 pp. 331-335 
 
 dissolution of interlocutory injunctions in general . § 235 pp. 335-337 
 " " " " for causes aris- 
 ing after their 
 issue . . § 236 pp. 237-23S 
 imposing terms upon the issue, denial, dissolution, or con- 
 tinuance of an injunction § 237 pp. 333-340 
 
 perpetual injunctions, when granted, what must be 
 
 shown § 23S pp. 340-341 
 
 obtained in a cause prior to removal to Federal court, effect 
 
 of removal on same § 392 p. 588 
 
 what to be regarded as value of matter in dispute in suit 
 
 for § 395 p. 590 
 
 modifying during appeal § 402 pp. 600-607 
 
 INJURY, 
 
 injunctions to prevent irreparable § 210 p. 302 
 
 IN PERSONAM, 
 
 decrees in. See Decrees. 
 IN REM, 
 
 property as conferring jurisdiction in equity § 1 p. 2 
 
 decrees in. See Decrees. 
 INSANITY, 
 
 when to be specifically charged in bill § G9 p. 117 
 
 INSOLVENCY, 
 
 of corporation, appointing a receiver in cases of .... § 240 p. 315 
 INSOLVENT DEBTOR, 
 
 when necessary party to suit brought by or against as- 
 signee § 45 p. SG 
 
 INSPECTION, 
 
 of documents, how obtained § 372 p. 552 
 
 INSTRUCTIONS, 
 
 recoiver's duty to apply for § 250 p. 373 
 
 See also Advice; Charge. 
 INSTRUMENTS, 
 
 cancellation of, as a ground of equitable jurisdiction . . § 2 p. 4 
 See also Documents. 
 INSUFFICIENCY, 
 
 exceptions to answer for § 153 pp. 225-227 
 
 INSUFFICIENCY OF FORM, 
 
 demurrers for § 108 p. 17G 
 
 INSURANCE, 
 
 specific performance of contract for § 11 p. 13 
 
 INSURANCE LAW, 
 
 principles of, which are applicable in Federal courts . . § 375 p. 557
 
 758 INDEX. 
 
 INSURANCE POLICY, 
 
 not cancelled by bill in equity after loss § 12 p. 17 
 
 not collected by bill in equity § 12 p. 17 
 
 INTEREST, 
 
 which is not considered as adding to the value of matter 
 
 in dispute § 16 p. 24 
 
 interest reipuUicce ut sitjinis litium, maxim of, applied . . § 42 p. 81 
 
 persons with no, -whether to be made parties § 43 p. 82 
 
 in question of law involved, does not entitle person to be 
 
 made party to suit § 44 p. 84 
 
 general rules as to making persons parties who have no . § 41 pp. 83-85 
 failure to have interest in subject-matter of bill a ground 
 
 of demurrer § 108 p. 175 
 
 on judgments § 380 p. 5G3 
 
 as included in value of matter in dispute § 395 p. 595 
 
 plaintiffs united in, what to be regarded as value of mat- 
 ter in controversy § 395 p. 596 
 
 when awarded on affirmance by Supreme Court .... § 409 p. 623 
 awarded where writ of error or appeal was taken for 
 
 delay § 409 p. 624 
 
 unless included in the mandate, cannot be awarded by 
 
 Circuit Court after affirmance by Supreme Court ... § 409 p. 624 
 
 INTERESTED PARTY, 
 
 not excluded from testifying § 274 p. 409 
 
 INTERFERENCE, 
 
 with duties of receiver § 249 p. 371 
 
 INTERLINEATIONS, 
 
 in answer § 151 p. 224 
 
 INTERLOCUTORY DISMISSAL OF BILLS, 
 
 See Dismissing Bills otherwise than at a Hearing. 
 
 INTERLOCUTORY APPLICATIONS, 
 
 definition and classification § 193 p. 279 
 
 how interlocutory applications are made to the court . . § 193 p. 279 
 
 motions, definition and classification of § 194 p. 279 
 
 of course §195 pp. 279-280 
 
 special, without notice § 196 pp. 280-282 
 
 orders grantable of course § 196 p. 281 
 
 notices of, requisites, who may make . . § 197 pp. 282-285 
 
 argument of § 198 pp. 285-287 
 
 petitions, in general, distinctions between, and motions § 199 pp. 2S7-288 
 for leave to sue in forma pauperis . . . §200 pp. 288-290 
 of intervention, when may be interposed, requi- 
 sites §201 pp. 290-292 
 
 form of, and practice thereupon .... § 202 pp. 292-293 
 orders, requisites and characteristics of .... § 203 pp. 293-29o 
 
 appeals from interlocutory §.203 p. 294 
 
 circuits of judges • § 204 p. 295 
 
 judges who may grant § 204 p. 295 
 
 in case of disability of other 
 judges § 204 p. 296
 
 INDEX. 759 
 
 INTERLOCUTORY DECREE. 
 
 See Decrees. 
 
 INTERLOCUTORY INJUNCTION, 
 
 notice of application for § 231 pp. 330-331 
 
 rules of decision upon applications for §233 pp. 333-334 
 
 dissolution of § 235 pp. 335-337 
 
 See also Injunctions. 
 
 INTERLOCUTORY ORDERS. 
 
 See Interlocutory Applications. 
 
 INTERMEDIATE, 
 
 dismissal of bills. See Dismissing Bills otherwise than at a 
 Hearing. 
 INTERMEDIATE APPLICATIONS. 
 
 See Interlocutory Applications. 
 
 INTERNAL REVENUE, 
 
 cases §15 p. 22 
 
 INTERPLEADER, 
 
 •who may file bills of, contents of bills and practice . § S8 pp. 142-146 
 
 bills in the nature of § 89 P- ] iQ 
 
 how far State practice as to granting order of, is followed § 300 p. 530 
 
 INTERROGATORIES. 
 
 See Evidence. 
 
 INTERROGATORY CLAUSE, 
 
 in bills, rules pertaining to § S2 pp. 135-136 
 
 INTERSTATE COMMERCE ACT, 
 
 compliance with, in certain cases compellable by injunc- 
 tion §222 p. 321 
 
 INTERVENOR, 
 
 may remove a cause § *°* P- 571 
 
 right of, to appeal § 397 p. 598 
 
 petition of §199 pp. 288; §201 pp. 290-292 
 
 See also Interlocutory Applications. 
 
 INTOXICATION, 
 
 ground of relief from contract §11 p. 13 
 
 INTRODUCTION, 
 
 in bills, rules relative to, and form of §66 pp. 112-113 
 
 INTRUSION, 
 
 information for an, in the case of purprestures .... § 214 p. 307 
 
 IOWA, 
 
 divided into two districts § 26 pp. 40-41 
 
 times and places of holding court enum- 
 erated § 26 pp. 40-41 
 
 statutory limitation of jurisdiction by residence in . . note, § 27 p. 59 
 districts of, included within Eighth Circuit .... § 204 p. 295 
 
 introducing in evidence, transcripts from certain books of 
 
 the District Courts in § 268 p. 401 
 
 IRREGULARITY, 
 
 motion to discharge order for § 197 p. 283
 
 760 INDEX. 
 
 IRRELEVANT MATTER, 
 
 demurrer to relief does not lie on account of § 108 p. 176 
 
 an exception for impertinence the proper remedy in such 
 
 case § 108 p. 176 
 
 IRREPARABLE INJURY, 
 
 in junctions to prevent. See Injunctions; Waste. 
 
 ISSUES, 
 
 bringing matter to distinct § 67 p. 113 
 
 testimony taken before cause is at issue § 282 pp. 41S-419 
 
 " " after " " " § 283 pp. 419-420 
 
 testimony taken after a cause is at issue and beyond the 
 
 jurisdiction of the court § 285 p. 423 
 
 when court may direct a feigned issue § 300 p. 446 
 
 ISSUES AT LAW, 
 
 power of courts to direct § 301 pp. 447-448 
 
 matters concerning which an issue is directed .... § 302 p. 448 
 
 time when an issue is directed § 303 p. 449 
 
 manner of trying § 304 pp. 449-451 
 
 effect of the finding of a jury upon an issue ... § 305 pp. 451-453 
 proceedings after the trial of ....••....§ 306 p. 453 
 
 J. 
 
 JEFFERSON, THOMAS, 
 
 subpoena duces tecum against, on trial of Aaron Burr . . § 98 p. 159 
 
 JOHNSON, PRESIDENT, 
 
 amenability to process of Federal courts § 98 p. 159 
 
 JOINDER, 
 
 of parties upon a motion § 197 p. 284 
 
 of causes of action at common law, how far State practice 
 
 respecting, followed § 360 p. 530 
 
 of parties at common law, how far State practice followed § 360 p. 530 
 JOINDER OF PARTIES IN EQUITY. 
 
 See Bills. 
 JOINT DEFENDANTS, 
 
 removability of cause in cases of § 3S4 p. 571 
 
 JOINT PARTIES, 
 
 what to be regarded as value of matter in dispute where 
 
 one party sues on behalf of others § 395 p. 596 
 
 where they assert distinct and separate rights .... § 395 p. 596 
 
 when must join in writ of error or appeal § 397 p. 598 
 
 JOURNAL, 
 
 introducing in evidence extracts from the journals of the 
 
 Senate or House of Representatives § 268 p. 400 
 
 JUDGES, 
 
 circuits of § 204 pp. 295-296 
 
 designation of other, when disabled § 204 p. 296 
 
 whether relative of, can be appointed receiver .... § 255 p. 381 
 weight of decisions by a § 298 p. 442
 
 INDEX. 761 
 
 JUDGMENT, 
 
 at law, when proceedings under, not enjoined .... § 12 p. 18 
 in limits of United States, jurisdiction of suits upon . . § 17 p. 25 
 of Federal court, jurisdiction of the, to restrain, regulate, 
 
 set aside, construe, or enforce § 21 p. 28 
 
 prayer of, in demurrer §117 pp. 182-183 
 
 how proved § 208 p. 404 
 
 common-law procedure respecting, also connection of . . § 300 p. 530 
 opening judgment entered by default, how far State prac- 
 tice respecting, followed § 300 p. 531 
 
 suspension of, pending writ of error § 300 p. 531 
 
 how far State practice relative to, is applicable in Federal 
 
 courts § 378 pp. 500-501 
 
 correction of judgments by courts that rendered them § 379 pp. 501-502 
 
 of non prosequitur § 38S pp. 582 
 
 cause improperly removed to Federal court may be re- 
 manded even after judgment § 393 p. 589 
 
 costs in Supreme Court of the United States upon re- 
 versal of judgment or decree for want of jurisdiction . § 393 p. 590 
 
 releasing, to confer jurisdiction § 395 p. 595 
 
 when can be executed despite supersedeas § 397 p. 598 
 
 which can be reviewed by writ of error from Supreme 
 
 Court to State court §405 p. 014 
 
 when interest awarded, an affirmance of § 409 p. 023 
 
 See also Writs of Error and Appeals. 
 JUDGMENT CREDITORS, 
 
 of corporations, appointment of receivers in suits of . . § 240 p. 344 
 JUDICIAL CIRCUITS. See Circuits. 
 JUDICIAL DISTRICT. See District Courts. 
 JUDICIAL NOTICE, 
 
 of statutes pleaded in bills § 08 p. 115 
 
 JUDICIAL POWER, 
 
 of the United States § 3 pp. 4-5 
 
 JUDICIAL PROCEEDINGS, 
 
 how proved § 2GS p. 404 
 
 JUDICIAL WRITS, 
 
 as distinguished from other forms of injunctions ... § 205 p. 297 
 See also Injunctions. 
 JUDICIARY ACT. See Appendix, pp. 053-058. 
 JURAT, 
 
 of affidavit. See Evidence. 
 JURISDICTION, 
 
 definition of equitable § 1 p. 1 
 
 rise and history of equitable § 1 p. 1 
 
 definition of equitable § 1 p. 1 
 
 foundations of § 1 p. 1 
 
 labors of early chancellors in widening . § 1 pp. 1-2 
 
 Nottingham, Selden, Wolsey, More, Bacon, Clar- 
 endon, Somers, Erskine, Hardwicke, Eldon, 
 Westbury, Kent, Story, Taney §1 pp. 1-2
 
 762 INDEX. 
 
 JURISDICTION— continued. 
 
 denial of justice at common law, -the foundation of, originally § 1 p. 2 
 
 services of Mansfield § 1 p. 2 
 
 distinction between jurisdiction at common law, and . . . . § 1 p. 2 
 
 property, or absence of, as affecting § 1 p. 2 
 
 subjects of § 2 pp. 3-4 
 
 beneficiaries under a trust § 2 p. 3 
 
 accident § 2 p. 3 
 
 penalty § 2 p. 3 
 
 forfeiture § 2 p. 3 
 
 loss of documents § 2 p. 3 
 
 mistake § 2 p. 3 
 
 of law § 2 p. 3 
 
 fraud § 2 p. 3 
 
 duress § 2 p. 3 
 
 election under a will § 2 p. 3 
 
 adjustment of liabilities § 2 p. 4 
 
 set-off § 2 pp. 2-4 
 
 contribution § 2 p. 4 
 
 exoneration § 2 p. 4 
 
 marshalling of securities § 2 p. 4 
 
 compelling discovery § 2 p. 4 
 
 perpetuation of testimony § 2 p. 4 
 
 examination of witnesses abroad § 2 p. 4 
 
 satisfying property not reachable on execution . . § 2 p. 4 
 
 preventing threatened breaches of right § 2 p. 4 
 
 specific performance § 2 p. 4 
 
 preventing multiciplicity of suits § 2 p. 4 
 
 cancellation of instruments § 2 p. 4 
 
 constitutional provisions affecting § 3 p. 4 
 
 ambassadors § 3 p. 5 
 
 ministers § 3 p. 5 
 
 consuls § 3 p. 5 
 
 distinction between law and equity in Federal courts . . . § 4 pp. 4-5 
 
 rules affecting, generally stated § 5 pp. 6-8 
 
 substantially the same as English High Court of Chancery . § 5 p. 6 
 
 State statutes cannot impair § pp. 8-9 
 
 creating new rights enforceable in Federal 
 
 courts § 7 pp. 9-10 
 
 as to mortgagor's right to redeem . . § 7 p. 9 
 as to setting aside probate of will „ . § 7 p. 9 
 
 as to quieting title to land § 7 p. 9 
 
 imposing on stockholder's liability to credi- 
 tors § 7 p. 9 
 
 assessments upon streets . . . • § 7 p. 9 
 authorizing filing of creditor's bills .... § 7 p. 10 
 " injunction to be granted . . . § 7 p. 10 
 
 " guardian to mortgage ward's 
 
 estate § 7 p. 10 
 
 State statutes of limitations affecting § 8 p. 10 
 
 usually followed by analogy . . § 8 p. 10
 
 INDEX. 763 
 
 JURISDICTION — continued. 
 
 State statutes of limitations not always controlling . . . § 8 p. 10 
 
 cannot bar the United States . § S p. 10 
 effect of, as to patents and , 
 
 copyrights § 8 p. 10 
 
 property in custody of a State court §9 pp. 11-12 
 
 when Federal Court will 
 
 decline to interfere . § 9 pp. 11-12 
 
 " " " " a Federal court § 10 p. 12 
 
 illustrations of equitable jurisdiction in Federal court . § 11 pp. 12-13 
 " " cases where Federal courts declined to as- 
 sume ecpiitable jurisdiction .... § 12 pp. 15-20 
 Federal courts which have jurisdiction in equity enumer- 
 ated § 13 p. 20 
 
 original equitable jurisdiction of United States Supreme 
 
 Court §14 pp. 20-21 
 
 of Circuit Courts § 15 pp. 21-23 
 
 matter in dispute, value § 16 pp. 23-25 
 
 suits arising under Constitution or laws of the United 
 
 States § 17 p. 25 
 
 controversy between citizens of different States .... § 18 p. 26 
 
 citizenship § 19 pp. 26-27 
 
 under grants of different States § 20 pp. 27-28 
 
 ancillary §21 pp. 2S-29 
 
 limitations upon, by residence .... note, § 22 p. 29-31; pp. 58-63 
 special limitation upon Circuit Court for Southern District 
 
 of New York § 23 p. 32 
 
 in suits by assignees § 24 pp. 32-34 
 
 indorsees § 24 p. 33 
 
 original jurisdiction of the District Courts § 25 pp. 31-35 
 
 territorial jurisdiction and terms of Supreme, Circuit, and 
 
 District courts § 26 p. 35 
 
 sources of Federal equity practice note, § 26 p. 58 
 
 statutes § 26 p. 56 
 
 rules of United States 
 
 Supreme Court ... § 27 p. 57 
 omission from bills of defendants not within the .... § 50 p. 92 
 
 decree as against parties not within the § 50 p. 93 
 
 when court will take, of bills § 64 p. Ill 
 
 verification to avoid suspicion of collusive, in suit affecting 
 
 rights assertable by corporation § 76 p. 128 
 
 demurrers to § 108 p. 1 T 1 
 
 pleas to § 126 p. 191 
 
 testimony taken after a cause is at issue, and beyond the 
 
 jurisdiction of the court § 285 p. 423 
 
 dismissal of bill for want of § 293 pp. 436-438 
 
 master taking testimony beyond § 313 p. 461 
 
 costs in United States Supreme Court, when judgment or 
 
 decree is reversed for want of jurisdiction in court below § 327 p. 4S0 
 want of, in State court, whether available in Federal court 
 
 after removal § 391 p. 586
 
 764 INDEX. 
 
 J URISDICTION — continued. 
 
 as affected by bringing in new parties after removal to 
 
 Federal court § 391 p. 587 
 
 for want of jurisdiction, cause improperly removed to Fed- 
 eral court may be remanded § 392 p. 589 
 
 when appeal may be taken to Supreme court of the United 
 States on question involving the jurisdiction, irrespec- 
 tive of value of matter in controversy • § 393 p. 590 
 
 costs in Supreme Court of United States, upon reversal of 
 
 judgment or decree for want of jurisdiction . . . §393 pp. 589-590 
 
 appeal to review final decrees of Circuit Courts in which 
 
 there has been a question of jurisdiction § 394 p. 59-1 
 
 but limited by value of matter in controversy § 391 p. 591 
 
 releasing judgment to confer § 395 p 595 
 
 taking testimony within and without. See also Evidence ; Writs of 
 Error and Appeals. 
 JURISDICTION CLAUSE, 
 
 form of ... § 81 p. 134 
 
 no longer considered necessary § 81 p. 135 
 
 in bills. See Bills. 
 JURISDICTIONAL FACTS, 
 
 evidence to contradict averments of, when admissible . . § 293 p. 436 
 
 JURY, 
 
 qualifications and mode of selection § 374 p. 556 
 
 when jury trials had § 374 pp. 554-556 
 
 appeals from judgments and decrees of territorial courts in 
 
 cases not tried by a jury § 394 p. 591 
 
 See also Common Law ; Issues at Law. 
 
 K. 
 
 KANSAS, 
 
 constitutes one judicial district § 26 p. 41 
 
 times and places of hold- 
 ing court therein enu- 
 merated § 26 p. 41 
 
 districts of, included within Eighth Circuit § 204 p. 295 
 
 introducing in evidence transcripts from certain books of 
 
 the District Courts in § 268 p. 401 
 
 KENT, CHANCELLOR, 
 
 labors of, in widening jurisdiction of courts of equity . . § 1 p. 2 
 
 view of, as to multifariousness in bills § 73 p. 123 
 
 KENTUCKY, 
 
 constitutes one district ■ § 26 p. 41 
 
 times and places of holding court 
 
 therein enumerated ... § 26 pp. 41-42 
 
 limitations upon Federal jurisdiction in notejx) p. 32 
 
 statutory limitation of jurisdiction by residence in . . note, § 27 p. 59 
 
 district of, included within Sixth Circuit § 204 p. 295 
 
 KIN. See Next of Kin.
 
 INDEX. 765 
 
 KINDERSLEY, VICE-CHANCELLOR, 
 
 statement of rule by, respecting the granting of injunc- 
 tions to restrain trespass § 215 p. 309 
 
 KING'S BENCH, 
 
 practice in the court of, affords outline for practice at 
 
 common law § 360 p. 529 
 
 KOSSUTH, 
 
 injunction granted to restrain, from manufacturing paper 
 
 currency in England § 223 p. 321 
 
 L. 
 
 LACHES, 
 
 as constituting a ground of demurrer .......§ 108 p. 175 
 
 which may be taken advantage of at hearing § 299 p. 445 
 
 See also Delay; Limitation. 
 LADING, 
 
 how far decisions of State courts relative to bills of lading 
 
 are binding upon Federal tribunals § 375 p. 557 
 
 LAND, 
 
 bill to quiet title to § 7 p. 9 
 
 alternative relief in action to quiet title to § 70 p. 118 
 
 injunctions to enforce specific performance of covenants 
 
 and contracts affecting § 208 pp. 300-301 
 
 injunctions to restrain the sale of § 210 p. 302 
 
 injunctions to prevent alienations of § 212 p. 306 
 
 injunctions to compel the performance, or prevent the 
 
 breach, of contracts not affecting land § 220 pp. 318-319 
 
 practice on removal of suits containing controversies be- 
 tween citizens of the same State claiming land under 
 
 grants of different States § 387 p. 580 
 
 LAND OFFICE, 
 
 introducing in evidence copies of papers in § 268 p. 400 
 
 LAND PATENT, 
 
 bill to quiet possession under § 11 p. 15 
 
 bill to set aside, not maintainable by private citizen . § 12 pp. 17-18 
 See also Patents. 
 LANGDELL, PROFESSOR, 
 
 on demurrers to the discovery § 109 p. 177 
 
 referred to on practice of court giving special leave to file 
 
 double pleas § 124 p. 188 
 
 work of, on equity pleading, referred to in discussing sub- 
 ject of negative pleas § 121 p. 190 
 
 on admissions and denials independent of discovery . . § 146 p. 215 
 opinion of, as to discovery in bill demanding account . . § 118 p. 219 
 LAW, 
 
 relief against mistakes of § 2 p. 3 
 
 distinctions between equity and, in Federal courts ... § 4 pp. 5-6 
 interest in question of, involved does not entitle person to 
 
 be made a party § 44 p. 84
 
 766 INDEX. 
 
 LAW — continued. 
 
 bill to obtain stay of proceedings at ....... . § 64 p. Ill 
 
 conclusions of, not to be stated in bills § 69 p. 116 
 
 distinction between court of, and of equity, in that the 
 
 latter affords complete relief § 1 p. 2 
 
 mistake of, cannot ordinarily be cured by amendment . . § 167 p. 243 
 passed by State and territorial legislatures, introducing in 
 
 evidence § 268 p 401 
 
 dismissal of bill for plaintiff's failure to elect whether he 
 
 will proceed at law or in equity § 293 pp. 439-440 
 
 distinction between costs at law and in equity .... § 326 p. 477 
 
 consolidation at law and in equity §371 p. 550 
 
 rules of decision applicable in actions at common law § 375 pp. 556-557 
 See also Issues at Law ; Practice at Common Law ; Remedy at 
 Law; Statutes. 
 
 LAWS OF THE UNITED STATES, 
 
 suits arising under § 15 p. 21 ; § 11 p. 25 
 
 suits arising under Constitution and § 17 p. 25 
 
 See also Writs of Error and Appeals. 
 
 LEACH, VICE-CHANCELLOR, 
 
 rule of, as to multifariousness in bills § 73 p. 122 
 
 LEASEHOLD, 
 
 amount expended by tenant on, when part of matter in 
 
 dispute § 395 p. 596 
 
 LECTURES, 
 
 injunction to restrain publication of § 206 p. 237 
 
 LEGAL CAPACITY TO SUE, 
 
 demurrer for want of § 108 p 174 
 
 LEGATEES, 
 
 bill by, against executor § 11 p. 12 
 
 necessary parties to suits by, on behalf of themselves and 
 
 others similarly situated § 47 p. 90 
 
 necessary parties in suits by § 52 p. 96 
 
 LENGTH, 
 
 of replication, ancient penalty for undue § 159 p. 233 
 
 bills; practice of taxing costs according to, the origin 
 
 of the common confederacy clause § 65 p. 112 
 
 LETTERS, 
 
 injunction to restrain publication of § 206 p. 298 
 
 opening of . . . . § 210 p. 302; § 219 p. 318 
 
 LETTERS OF ADMINISTRATION, 
 
 averments as to, in bill § 78 p. 132 
 
 LETTERS ROGATORY, 
 
 taking testimony under § 285 P- 4 - 3 
 
 defined, practice §290 pp. 432-433 
 
 LEWDNESS, 
 
 when to be specifically charged in bill § 69 p. 11/
 
 INDEX. 767 
 
 LIABILITIES, 
 
 adjustment of, as a subject of jurisdiction in equity ... § 2 p. 4 
 of receiver § 251 pp. 374-576 
 
 LIBELS, 
 
 rarely enjoined § 12 p 17 
 
 whether injunction will be granted against publication of a § 223 p. 323 
 
 LIBELLUS, 
 
 the term from which the word " bill " is derived ... § 64 p. 109 
 
 LIBERTY, 
 
 principle that no question affecting a person's, to be decided 
 
 without his presence, applicable to equity § 42 p. 81 
 
 LICENSE, 
 
 to use patented invention reached by creditor's bill ... § 11 p. 14 
 
 LIEN, 
 
 how far judgments recovered in Federal courts are a . . § 378 p. 560 
 
 LIENHOLDER, 
 
 of corporation, appointing receiver at suit of § 210 p. 344 
 
 LIENORS, 
 
 when necessary parties to foreclosure § 44 p. 83 
 
 LIFE, 
 
 principle that no question affecting a person's, to be decided 
 
 without his presence, applicable to equity ..... § 42 p. 81 
 
 LIMITATION, 
 
 State statutes of, as affecting jurisdiction of Federal 
 
 courts § 8 p. 10 
 
 upon jurisdiction of Federal courts by residence § 22 pp. 29-31 ; pp. 58-63 
 
 as constituting ground of demurrer § 108 p. 175 
 
 statute of, may be set up to bill of revivor by plea ... § 181 p. 265 
 Federal courts follow statutes of, in actions at common law § 375 p. 558 
 
 United States not bound by State statutes of § 375 p. 558 
 
 See Laches. 
 
 LIS PENDENS, 
 
 P leaof § 129 p. 191 
 
 State statutes providing for filing of, how far binding upon 
 
 Federal tribunals S 375 p. 558 
 
 LITTLE AND BROWN, 
 
 edition of the laws and treaties of the United States by, 
 
 competent evidence § 268 p. 405 
 
 LOCAL INFLUENCE, 
 
 practice on removal of cause for grounds other than preju- 
 dice or local influence • • § 385 p. 572 
 
 practice on removal of cause for prejudice or local influ- 
 
 ence § 386 pp. 575-580 
 
 LOCAL NATURE, 
 
 jurisdiction in suits of § 22 pp. 30-31 
 
 LORD OF MANOR, 
 
 suits against, by one or more persons on behalf of others . § 49 p. 91
 
 768 INDEX. 
 
 LORD REDESDALE, 
 
 on bills of revivor in favor of creditors ..,.,..§ 177 p. 259 
 
 LOST DOCUMENTS, 
 
 as a subject of relief in equity § 2 p. 3 
 
 introducing copies in evidence § 268 p. 402 
 
 LOUISIANA, 
 
 limitations upon jurisdiction of Federal Courts in ... note on p. 32 
 
 divided into two judicial districts § 26 p. 42 
 
 counties and times and 
 places of holding court 
 therein enumerated . § 26 pp. 42-43 
 districts of, included within Fifth Circuit § 204 p. 295 
 
 LOWELL, JUDGE, 
 
 on power of courts to protect patents by injunction ... § 216 p. 311 
 view of, as to granting injunction to restrain violation of 
 
 negative promise § 220 p. 319 
 
 LUNATICS, 
 
 capacity to file bills in equity § 28 p. 61 § 33 p. 67 
 
 suits against § 40 p. 79 
 
 suing alone, ground of demurrer § 108 p. 174 
 
 liberal amendments in favor of § 160 p. 234 
 
 appointing receiver of property of § 210 p. 344 
 
 time of, to bring appeal or writ of error § 398 p. G02 
 
 time to review judgment of District Court by Circuit Court 
 
 affecting § 404 p. 611 
 
 M. 
 
 MAINE, 
 
 constitutes one judicial district § 26 p. 43 
 
 times and places of holding 
 
 court therein enumerated § 26 p. 43 
 districts of, included within First judicial Circuit . . . § 204 p. 295 
 
 MALINS, VICE-CHANCELLOR, 
 
 on amending petitions for intervention § 202 p. 293 
 
 MANAGER, 
 
 English term for receiver § 239 p. 312 
 
 MANAGING DIRECTORS. 
 
 See Corporation; Director; Stockholder. 
 
 MANDAMUS, 
 
 when to be applied for by attorney-general instead of in- 
 junction, against corporations violating their charters § 207 p. 299 
 when injunction will not be issued staying application 
 
 for a § 211 p. 304 
 
 principles regulating issuance of § 363 pp. 533-537 
 
 practice on application for . § 364 pp. 537-539 
 
 to compel judge to allow an appeal ........§ 401 p. 605 
 
 included in the term " suit," for the purpose of a writ of 
 
 error from the Supreme Court to State court .... § 405 p. 614
 
 INDEX. 769 
 
 MANDATES. See Enforcement of Decrees and Orders. 
 MANDATORY INJUNCTIONS, 
 
 distinguished from other forms § 205 p. 297 
 
 See also Injunctions. 
 MANSFIELD, LORD, 
 
 abolishing former English practice of bringing motions to 
 
 a hearing § 198 p. 285 
 
 MANUFACTURE, 
 
 injunction to prevent disclosure of the secrets of a . . . § 206 p. 297 
 MANUSCRIPTS, 
 
 injunction to restrain publication of § 206 p. 297 
 
 MARRIAGE CONTRACT, 
 
 bill to cancel § 11 p. 13 
 
 value of matter in dispute in suit to cancel § 16 p. 24 
 
 MARRIED WOMEN, 
 
 incapable of filing bills in equity in their own right §§ 28, 31 pp. 64-65 
 
 suits against § 41 p. 80 
 
 suing alone, ground of demurrer § 108 p. 174 
 
 MARSHAL, 
 
 bill to obtain a determination of rights of a claimant to 
 
 fund in hands of . § 64 p. Ill 
 
 death, removal, or expiration of term of, after taking prop- 
 erty in execution § 380 p. 563 
 
 fees of. See Costs. 
 
 MARSHALL, CHIEF JUSTICE, 
 
 ordering a subpoena duces tecum against Thomas Jefferson, 
 
 on trial of Aaron Burr . § 98 p. 159 
 
 MARSHALLING SECURITIES, 
 
 as a subject of jurisdiction in equity § 2 p. 4 
 
 MARYLAND, 
 
 constitutes one judicial district § 26 p 43 
 
 times and places of holding 
 
 court therein enumerated . § 26 p. 43 
 
 districts of, included within the Fourth Circuit § 204 p. 295 
 
 MASSACHUSETTS, 
 
 constitutes one judicial district § 26 n 13 
 
 times and places of holding 
 
 court enumerated . . § 26 pp. 43-4 4 
 the districts of, included within the First Circuit . . § 204 pp. 295-296 
 MASTER, 
 
 reference to, to hear testimony and state facts where the 
 
 latter are voluminous, on application for an injunction . § 217 p. 315 
 appointment of receiver usually no longer referred to . . ^ 2'ii p. 379 
 
 passing accounts of receiver § 254 p. 379 
 
 when may be appointed receiver t; 255 p. 380 
 
 passing receiver's accounts § 257 p 383 
 
 fixing compensation of receiver § 2.">8 p. 381 
 
 reference to, to take accounts or assess damages .... §300 p. 416 
 
 references to, in general § 307 p. 454 
 
 49
 
 770 INDEX. 
 
 MASTER — continued. 
 
 who may be appointed master § 30S p. 455 
 
 bringing on a reference before § 3U9 p. 455 
 
 duties of master ... § 309 pp. 455-456 
 master appointing day, form of memorandum .... § 309 p. 456 
 
 parties entitled to attend a reference § 310 pp. 456-457 
 
 proceedings before master in general § 311 pp. 457-458 
 
 state of facts § 312 pp. 459-460 
 
 evidence before § 313 pp. 460-461 
 
 reports and compensation § 314 pp. 461— 402 
 
 exceptions to reports § 315 pp. 462-463 
 
 sales by § 316 pp. 463-465 
 
 permitting master under Lord St. Leonards' Act to exe- 
 cute deed or other written instrument in the name of 
 
 party who refuses to do so . § 349 pp. 511-512 
 
 how far decisions in State courts upon the law of master 
 
 and servant are binding in Federal tribunals .... § 375 p. 557 
 MATTER IN DISPUTE, 
 
 value of, necessary to confer jurisdiction § 16 pp. 23-25 
 
 value of, in suit for accounting § 16 p. 24 
 
 to cancel paper purporting to be marriage contract ... § 16 p. 24 
 value of, on suit by parties with common interest . . . § 16 p. 24 
 
 value of, in suit on behalf of a class § 16 p. 24 
 
 that court has no jurisdiction for lack of value of, a 
 
 ground of demurrer § 108 p. 175 
 
 value of, as affecting removal of cause §385 p. 575 
 
 value of, as affecting removal of suits containing contro- 
 versies between citizens of the same State, claiming 
 
 land under grants of different States § 387 p. 580 
 
 value of, as affected by subsequent events in relation to 
 
 right to remove cause to Federal court § 391 p. 5S7 
 
 when appeal to Supreme Court of the United States au- 
 thorized irrespective of value of matter in dispute . . § 393 p. 590 
 
 as regulating right to appeal . . . § 394 p. 592 
 
 value of. as affecting appeal to review final decree of Cir- 
 cuit Courts in which there has been a question of juris- 
 diction § 394 p. 594 
 
 as affecting right to appeal to Supreme Court of United 
 
 States . § 395 pp. 594-597 
 
 value of, immaterial, on writ of error, from Supreme Court 
 
 t>"> State court on account of Federal question .... §405 p. 616 
 MATTER SUBSEQUENT, 
 
 bill to impeach decree for § 64 p. 110 
 
 MAXIMS 
 
 interest reipublicae ut sit finis litium § 42 p. 81 
 
 utile per inutile non vitiatur § 68 p. 11 6 
 
 he who seeks equity must do equity, as applied to plead- 
 ings ' § 84 p. 138 
 
 maxima pars eorum quae scimus est minima eorum quae igno- 
 ramus § 143 p. 210 
 
 VtCtus victori in expensis condemnatus est § 327 p. 477
 
 INDEX. 771 
 
 MEDICAL MAN, 
 
 testimony of, as to information acquired professionally . §271 p. 410 
 
 MEMBER, 
 
 of corporation, when a proper party to suit against, under 
 
 English practice § 43 p. 82 
 
 parties to suits by members of unincorporated associa- 
 tion on behalf of themselves and others similarly situ- 
 ated §47 p. 89 
 
 See also Corporation; Stockholder. 
 MERCHANTS' ACCOUNTING, 
 
 as a subject of equity jurisdiction § 11 p. 14 
 
 MICHIGAN, 
 
 divided into two districts § 26 p. 11 
 
 districts enumerated and described §26 pp. 44-45 
 statutory limitation of jurisdiction by residence in note, § 27 pp. 59-60 
 districts of, included within Sixth Circuit § 201 p. 295 
 
 MILLER, JUSTICE, 
 
 on appointment of receivers over insolvent railroads . . § 244 p. 357 
 
 MINISTERS, 
 
 jurisdiction of cases affecting § 3 pp. 4-5 
 
 original jurisdiction of United States Supreme Court in 
 
 controversies affecting § 14 pp. 20-21 
 
 writ of ne exeat republica against, or servant of .... § 262 p. 390 
 See also Ambassadors. 
 
 MINNESOTA, 
 
 constitutes one judicial district § 26 p. 45 
 
 times and places of hold- 
 ing same enumerated . § 26 p. 45 
 
 districts of, included within Eighth Circuit § 204 p. 295 
 
 introducing in evidence transcripts from certain books of 
 
 the District Courts in § 268 p. 401 
 
 MINORS. See Infants. 
 
 MISCONDUCT, 
 
 removal of receiver for § 259 pp. 385-387 
 
 MISCONDUCT IN OFFICE, 
 
 when to be specifically charged in bill § 69 p. 117 
 
 MISJOINDER. 
 
 of parties plaintiff, a ground of demurrer § 108 p. 175 
 
 objection on account of. will not prevent appointment of 
 
 receiver § 252 p. 377 
 
 See also Bills ; Multifariousness. 
 
 MISREPRESENTATION, 
 
 not ground for bill in equity to recover damages alone . § 12 p. 17 
 
 MISSISSIPPI, 
 
 divided into two districts § 26 p. 45 
 
 subdivisions and counties of 
 
 same enumerated .... § 26 pp. 45-46 
 districts of, included within Fifth Circuit § 204 p. 295
 
 772 INDEX. 
 
 MISSOURI, 
 
 divided into two districts § 26 p. 4G 
 
 times and places of holding court 
 
 in, enumerated § 26 pp. 46-47 
 
 statutory limitations of jurisdiction by residence in note, § 27 pp. 60-61 
 districts of, included within Eighth Circuit § 204 p. 295 
 
 MISTAKE, 
 
 as a subject of relief in equity § 2 p. 3 
 
 essentials of § 2 p. 3 
 
 not ground for bill in equity to recover damages alone . § 12 p. 17 
 
 in writs of error § 399 p. 603 
 
 See also Correction of Decree otherwise than by Appeal. 
 
 MISTAKE OF LAW, 
 
 when relieved in equity § 2 p. 3 
 
 omission due to a, cannot ordinarily be cured by amend- 
 ment . § 167 p. 244 
 
 MITFORD, 
 
 classification by, of demurrers to relief § 108 pp. 174-177 
 
 MODELS, 
 
 used as exhibits in court below § 403 p. 608 
 
 MODIFICATION, 
 
 of judgment by courts that rendered them . . . § 379 pp. 561-562 
 by Supreme Court of judgment appealed from .... § 409 p. 623 
 
 MONDAY, 
 
 first Monday of month, rule-day in Circuit and District 
 
 Courts § 195 p. 280 
 
 motion day in United States Supreme Court § 406 p. 616 
 
 MONEY, 
 
 when interest awarded on affirmance of judgment or de- 
 cree for the payment of § 409 p. 623 
 
 MONOPOLIES, 
 
 injunctions to restrain § 207 p. -98 
 
 when injunction will not be issued to assist in maintaining § 223 p. 324 
 
 MONTANA, 
 
 constitutes one district § 26 p. 47 
 
 districts of, included within Ninth Circuit . . . . . • § 204 p. 296 
 time within which causes to be docketed in United States 
 
 Supreme Court in case of appeals and writs of error from § 403 p. 608 
 
 MORE, SIR THOMAS, 
 
 labors of. in widening jurisdiction of courts of equity . . . § 1 P- 2 
 practice of signing bills, originating in time of ... . § 86 p. 141 
 present practice relative to subpoena to appear and answer, 
 
 originated in time of § 92 p. 150 
 
 MORTGAGE, 
 
 of ward's estate by guardian § ' p. 10 
 
 who necessary parties to bill for foreclosure . . . . . §44 p. 83 
 whether prior incumbrancers are necessary parties to suit 
 
 to compel execution of mortgage . § 53 p. 101 
 
 bill for redemption of, what to contain § 84 p. 138 
 
 See also Equity of Rkdemption; Foreclosure.
 
 INDEX. 77 
 
 6 
 
 MORTGAGEE, 
 
 rights of § 6 pp. 8-9 
 
 of corporations, appointing receivers at suit of .... § 2I(J p. 314 
 
 MORTGAGOR, 
 
 rights of § 6 pp. 8-9 
 
 State statute giving right to redeem enforceable in equity § 7 p. 9 
 
 who has sold equity of redemption, when necessary party 
 
 to bill of foreclosure § 44 p. 84 
 
 whether necessary party in suits affecting property. See Parties. 
 
 MOTION, 
 
 for new trial § 376 p. 559 
 
 for correction of judgment by same court that rendered it § 379 p. 562 
 
 renewing, after removal to. Federal court § 391 p. 5S7 
 
 to dismiss appeals or writs of error ......§ 406 pp. 616-617 
 
 See Interlocutory Applications and Petitions. 
 
 MULTIFARIOUSNESS, 
 
 of bill §§ 71-75 pp. 119-127 
 
 when raised by demurrer § 108 p. 176 
 
 objection of, when raised by plea § 128 p. 192 
 
 objection on account of, not to prevent appointment of 
 
 receiver § 252 p. 377 
 
 MULTIPLICITY OF SUITS, 
 
 as a ground of equitable jurisdiction § 2 p. 4 
 
 that defendant may be harassed by, a ground of demurrer §108 p. 1 7-j 
 
 injunctions to restrain § 209 pp. 301-302 
 
 See also Nuisance. 
 MUNICIPAL BONDS, 
 
 bill by holder of § 11 p. 12 
 
 how far decisions of State courts relative to, are binding 
 
 upon Federal tribunals §375 p. 557 
 
 See Town Bonds. 
 
 MUNICIPAL CORPORATION, 
 
 bill to enjoin sale of property in execution §11 p. 12 
 
 bill by city to establish right to levy duty § 49 p. 92 
 
 See Mandamus; Taxes. 
 
 MUNICIPAL OFFICERS, 
 
 removal not enjoined = . . . §12 p. 17 
 
 MUNICIPAL PROPERTY, 
 
 when receiver cannot be appointed over $ 214 p. o^ti 
 
 N. 
 
 NAME, 
 
 petition for intervention to state name of petitioner . . §202 p. 202 
 
 NARRATIVE, 
 
 testimony taken by examiner to be in the form of a . . § 2S4 p. 421 
 
 NARRATIVE PART, 
 
 of bill ... §07 pp. 113-114
 
 774 INDEX. 
 
 NATIONAL BANK, 
 
 cases affecting § 15 p. 21 
 
 suits by or against § 17 p. 25 
 
 appointing receivers of property of § 240 p. 344 
 
 NATIONAL BANKING ASSOCIATION, 
 
 introducing in evidence certificate of organization ... § 268 p. 399 
 
 NEBRASKA, 
 
 constitutes one judicial district § 26 p. 47 
 
 times and places of holding 
 courts therein enumerated § 26 p. 47 
 district of, included within Eighth Circuit § 204 p. 295 
 
 NECESSARY PARTIES. 
 
 See Defendant; Parties; Plaintiff. 
 NE EXEAT REGNO, 
 
 prayer for relief when writ of, is asked § 83 p. 136 
 
 if writ of, is asked for in prayer for relief, need not be re- 
 peated in prayer for process § 85 p. 140 
 
 NE EXEAT REPUBLICA, 
 
 writs of, usually granted ex parte §196 p. 281 
 
 writ of, defined § 261 p. 389 
 
 when it will issue § 261 p. 389 
 
 by whom to be issued § 261 p. 389 
 
 against " " " § 262 pp. 390-391 
 
 practice in obtaining § 263 pp. 391-304 
 
 form § 263 p. 392 
 
 See Ne Exeat Regno. 
 
 NEGATIVE PROMISE, 
 
 injunction to restrain violation of § 220 p. 319 
 
 NEGLECT, 
 
 dismissal of bill for want of prosecution .... § 292 pp. 435-436 
 
 NEGLIGENCE, 
 
 no relief against mistake when caused by § 2 p. 3 
 
 liability of receiver for §251 p. 375 
 
 decisions upon law of, in State courts, how far binding in 
 
 Federal courts § 375 p. 557 
 
 NEGOTIABLE INSTRUMENTS, 
 
 how far decisions of State courts relative to, are binding 
 
 upon Federal tribunals § 375 p. 557 
 
 NEGOTIATION OF NOTES, 
 
 injunction to restrain § 210 p. 302 
 
 NEVADA, 
 
 constitutes one judicial district § 26 p. 48 
 
 times and places of holding 
 court enumerated . . . § 26 p. 48 
 districts of, included within Ninth Circuit ......§ 2U4 p. 296 
 
 time within which cause to be docketed in United States 
 Supreme Court, in case of appeals or writs of error 
 from § 403 pp. 608, 609
 
 INDEX. 775 
 
 NEW FACTS. 
 
 See Coukkction of Decree otherwise than by Appeal; Sup- 
 plemental Bill. 
 NEW HAMPSHIRE, 
 
 constitutes oue judicial district § 20 p. 48 
 
 times and places of holding 
 court therein enumerated § 26 p. 48 
 the districts of, included within the First Circuit . . . § 204 p. 295 
 
 NEW JERSEY, 
 
 constitutes one judicial district § 26 p. 48 
 
 times and places of holding 
 courts therein enumerated § 26 p. 48 
 
 practice in taking bills pro confesso § 101 p. 168 
 
 districts of, included within the Third Circuit .... § 204 p. 295 
 NEW MEXICO, 
 
 time within which cause to be docketed in United States 
 
 Supreme Court, in case of appeals or writs of error from § 403 p. 008 
 
 NEW PARTIES, 
 
 when allowed to intervene §201 p. 291 
 
 bringing in, as affecting jurisdiction afterremoval of cause 
 
 to Federal court § 391 p. 5S7 
 
 NEW REMEDIES, 
 
 in equity § 1 p. 1 
 
 NEW TRIALS, 
 
 motions for, common-law procedure respecting .... § SCO p. 5^0 
 
 principles regulating the granting of § 376 p. 559 
 
 stay of execution to file petition for § 3S0 p. 564 
 
 effect of granting, on former judgment § 380 p. 504 
 
 judgment ordering, cannot be reviewed by writ of error 
 
 from Supreme Court to State court .......§ 405 p. 014 
 
 NEW YORK, 
 
 special limitation upon jurisdiction of Circuit Court for 
 
 Southern District of § 23 p. 32 
 
 divided into three districts § 26 p. 48 
 
 counties and times and places 
 of holding court therein enu- 
 merated § 20 pp. I 1 - 11 
 
 the districts of, included within the Second Circuit . . . $ 201 p. 295 
 NEXT Fill END, 
 
 appearing for infant § 39 p. 79 
 
 expenses of, how payable § 39 p. 79 
 
 petition for appointment of §199 p. 288 
 
 NEXT OF KIN, 
 
 bill against sureties of administrator § 11 p. 12 
 
 necessary parties to suits by one of, and on behalf of 
 
 others similarly situated § 47 p. 90 
 
 necessary parties in suits by § 52 p. 96 
 
 NINTH CIRCUIT, 
 
 districts included in §204 p. 296
 
 77G INDEX. 
 
 NISI, 
 
 order, defined § 198 p. 287 
 
 decrees. See Decrees. 
 
 NOMINAL DAMAGES, 
 
 costs where master reports in favor of plaintiff for nom- 
 inal damages § 327 p. 479 
 
 NON EST INVENTUS, 
 
 attachment returned § 149 p. 221 
 
 NON PROSEQUITUR, 
 
 judgment of § 388 p. 582 
 
 NON-RESIDENTS, 
 
 jurisdiction over § 22 pp. 29-31 
 
 suing in forma pauperis §200 p. 289 
 
 when may be compelled to give security for costs . § 338 pp. 498-499 
 
 NONSUIT, 
 
 plaintiff may consent to § 374 p. 556 
 
 trial judge has no power to order compulsory § 374 p. 556 
 
 NORTH CAROLINA, 
 
 divided into two judicial districts § 26 p. 49 
 
 counties and times and 
 places of holding court 
 therein enumerated § 26 pp. 49-50 
 
 districts of, included within Fourth Circuit § 204 p. 295 
 
 introducing in evidence transcripts from certain books of 
 the Circuit and District Courts in § 268 p 401 
 
 NORTH DAKOTA, 
 
 constitutes one district § 26 p. 50 
 
 district of, included within Eighth Circuit § 204 p. 295 
 
 NOTE, 
 
 not collected by bill in equity § 12 p 17 
 
 injunctions to restrain negotiation or indorsement of . . § 210 p. 302 
 
 prevent transfer of § 212 p. 305 
 
 NOTICE, 
 
 when to be specifically charged in bill § 69 p. 117 
 
 of motions §§ 195-197 pp. 280-285 
 
 of application for interlocutory injunction .... § 231 pp. 330-331 
 
 usually required, on appointment of receiver § 252 p. 378 
 
 of application for attachment for contempt , . . § 342 pp. 504-506 
 of trial or argument, how far State practice respecting, fol- 
 lowed § 360 p. 530 
 
 for production of books and papers at trial § 372 p. 553 
 
 of appeal in prize causes § 398 p. 601 
 
 of motion to dismiss appeal § 406 p 616 
 
 NOTTINGHAM, LORD, 
 
 labors of, in widening jurisdiction of courts of equity . . § 1 p 1 
 
 on bills of review § 356 p 522
 
 INDEX. 777 
 
 NUISANCE, 
 
 necessary parties in suit to enjoin § 52 p. 98 
 
 owners of adjacent property uniting to enjoin .... §72 p. 122 
 
 injunctions to suppress § 210 p. 302 
 
 injunctions to prevent continuance of § 214 pp. 307-308 
 
 NUMBER, 
 
 rules where parties are very numerous § 48 p. 90 
 
 NUMBERING, 
 
 paragraphs in bills § G7 p. 113 
 
 NUMEROUS PARTIES, 
 
 rule in case of § 48 p. 90 
 
 who necessary in case of § 40 p. 88 
 
 NUNC PRO TUNC, 
 
 allowing bond to be filed, on removal of cause to Federal 
 court . § 391 p. 588 
 
 O. 
 
 OATH, 
 
 waiver of answer under §84 p. 138; §148 p. 217 
 
 to answer § 151 pp. 223-224 
 
 before whom may be taken § 151 pp. 223-224 
 
 form of . . 1 § 151 p. 224 
 
 when must be made to the truth of proposed amendments § 168 p. 244 
 to be attached to answer denying facts stated in petition 
 
 for intervention § 202 p. 293 
 
 affirmation in lieu of § 270 p. 406 
 
 when master required to take § 311 p. 458 
 
 OBJECTIONS, 
 
 which cannot be made at the hearing § 299 pp. 444-145 
 
 OBSTRUCTING, 
 
 receiver § 249 p. 371 
 
 OFFER OF EQUITY, 
 
 a failure by plaintiff to make au, demurrable § 108 p. 176 
 
 OFFERS, 
 
 in bills § S4 pp. 137-140 
 
 omission of, when ground for demurrer § 84 p. 140 
 
 OFFICE, 
 
 removal from § 15 p. 22 
 
 suits to receive possession of §15 p. 22 
 
 misconduct in, when to be specifically charged in bill . . § 69 p. 117 
 
 OFFICER, 
 
 not compelled by bill in equity to perform duty .... § 12 p. 17 
 
 of State or municipality, removal not enjoined .... § 12 p. 17 
 of a corporation, when could be parties to suit against 
 
 corporation under English practice § 43 p. 82 
 
 when injunctions will not be issued to stay the removal of § 211 p. 304 
 
 of corporation, not usually appointed receiver .... § 255 p. 380 
 
 of House of Congress, removal of suit against .... § 3S3 p. 56 1 ; 
 
 § 388 pp. 5S0-5S2
 
 778 INDEX. 
 
 OFFICER OF UNITED STATES, 
 
 jurisdiction of actions at common law against .... § 15 p. 22 
 See also Revenue Officers. 
 OHIO, 
 
 divided into two districts § 26 p. 50 
 
 counties and times and places of 
 holding court therein enum- 
 erated § 2G pp. 50-51 
 
 statutory limitations of jurisdiction by residence in note, § 27 pp. 01-03 
 districts of, included within Sixth Circuit § 204 p. 295 
 
 OMISSION. 
 
 from bills, of defendants not within jurisdiction of the 
 
 court § 50 p. 92 
 
 in address and introductory clause of bills, how taken ad- 
 vantage of § G6 p. 113 
 
 of proper parties, reasons for, to be averred § 76 p. 127 
 
 which should be taken advantage of by demurrer . . . § 110 p. 178 
 
 OPEX COURT, 
 
 agreements made in, using as admissions § 265 p. 396 
 
 OPENING, 
 
 on hearing § 297 p. 441 
 
 argument in Supreme Court § 408 p. 622 
 
 OPENING OF COURT, 
 
 words usually employed in notices of motion § 197 p. 283 
 
 OPENING OF LETTERS, 
 
 injunctions to prevent § 219 p. 318 
 
 OPINION, 
 
 review by writ of error on certificate of division of 
 
 opinion § 394 p. 594 
 
 division of § 390 pp. 597-598 
 
 copies of, filed in the case to be annexed to and transmit- 
 ted with record on appeal § 403 p. 607 
 
 ORAL TESTIMONY. 
 
 See Evidence ; Pkactice at Common Law. 
 
 ORDER, 
 
 of State court on removal of cause § 385 p. 574 
 
 in cause prior to removal to Federal court, effect of re- 
 moval on same § 392 p. 588 
 
 See also Correction of Decree otherwise than by Appeal; Decrees; 
 Enforcement of Decrees and Orders ; Interlocutory Applica- 
 tions. 
 
 ORDER BOOK, 
 
 entering order in, that bill be taken pro confesso . . . § 111 p. 179 
 motions to be entered in order book § 195 p. 280 
 
 OREGON, 
 
 constitutes one judicial district § 26 p. 51 
 
 times and places of holding 
 court enumerated ... § 26 p. 51
 
 INDEX. 779 
 
 OREGON — continued. 
 
 districts of, included within Ninth Circuit § 201 p. 296 
 
 time within which cause to be docketed in United States 
 Supreme Court, in case of appeals or writs of error 
 from § 403 pp. G0S-G09 
 
 ORE TENUS, 
 
 demurrers .....§ 116 p. 182 
 
 costs ou sustaining demurrer § 123 pp. 18G-187 
 
 ORIGTN, 
 
 of jurisdiction in equity § 1 p. 1 
 
 ORIGINAL BILLS. 
 
 See Bills. 
 
 ORIGINAL JURISDICTION,- 
 
 of Federal Supreme Court § 3 p. 5; § 14 pp. 20-21 
 
 See also Jurisdiction. 
 
 ORIGINAL PAPERS, 
 
 when required for examination in Supreme Court ... § 403 p. 607 
 
 OTHER SUITS, 
 
 that defendant is in danger of being harassed by, a ground 
 
 of demurrer § 108 p. 175 
 
 OUTLAWRY, 
 
 plea of § 111 p. 208 
 
 P. 
 
 PAIN, 
 
 defendant may demur to bill if bis answer subjects him to § 109 p. 177 
 
 PAIS, 
 
 pleas of matter in § 133 pp. 199-200 
 
 PAPERS, 
 
 loss of, as a subject of relief in equity § 2 p. 3 
 
 introduction of, in evidence § 2G3 pp. 398-406 
 
 production of on trial § ; j72 p. oo2 
 
 PARAGRAPHS, 
 
 in bills. See Bills. 
 
 PARENS PATRIAE, 
 
 jurisdiction of Federal courts not like the Lord Chancel- 
 lor's prerogative as § 5 p. 6 
 
 PARISHIONERS, 
 
 suits by one or more on behalf of others § 49 p. 91 
 
 PARSON, 
 
 suits against, by one or more persons on behalf of others > V.) p. 01 
 
 PARTIES. See § 60, pp. 104-lU.j, lor summarized statement of the rules 
 relating to this subject, 
 citizenship of formal parties does not affect jurisdiction . § 18 p. 2G 
 
 to bills in equity, who may be § 28 p. 64 
 
 all persons to be, who are directly interested §42 p. 81 
 
 may be made defendants if they refuse to join as plaintiffs § 12 p. 81
 
 780 INDEX. 
 
 PARTIES — continued. 
 
 principle that no proceedings to take place affecting a per- 
 son's rights except in his presence applied § 42 p. 81 
 
 who bound by a decree § 42 p. bl 
 
 decision to provide for all the rights which different per- 
 sons have in the matters decided § 42 p. 81 
 
 principle of interest reipublicae ut sit finis litium, applied . § 42 p. 81 
 distinction between court of law and equity, in that the 
 
 latter affords complete relief . § 42 p. 82 
 
 illustration of, joining surety with principal liable for 
 
 money § 42 p. 82 
 
 heir with personal representative 
 in suit to enforce covenant 
 
 against ancestor ..... § 42 p. 82 
 
 parties with no interest in the subject-matter of the suit . § 43 p. 82 
 
 English practice § 43 p. 82 
 
 suits against corporations, — officers, book-keeper, members §43 p. 82 
 
 Eldon's remarks upon § 43 p. 83 
 
 Talbot's " " § 43 p. 83 
 
 agents, auctioneers, arbitrators, and attorneys, when to be 
 
 made parties in suits against principals § 43 p. 83 
 
 cases of fraud, making parties to, pay costs § 43 p. 83 
 
 persons who on account of lack of interest need not be 
 
 made parties § 44 pp. 83-85 
 
 who are not interested § 44 p. 83 
 
 who claim under inconsistent titles § 44 p. 83 
 
 prior incumbrances on a bill for foreclosure ... § 44 p. 83 
 
 suits for specific performance § 44 p. 84 
 
 suits by assignee § 44 p. 84 
 
 mortgagor who has sold equity of redemption ... § 44 p. 84 
 
 who has a mere interest in question of law involved . § 44 p. 84 
 
 plaintiffs having a joint and several demand § 44 p. So 
 
 Shadwell's remarks on rule fifty-one in chancery ... § 44 p. 85 
 rule fifty-one in chancery only applicable where several 
 
 persons are liable m different characters § 44 p. 85 
 
 cases where the law has furnished a representative . . § 45 pp. 85-88 
 
 cases of executors, administrators § 45 pp. 85-SG 
 
 bankrupts, insolvent debtor, creditors, in suits by 
 
 assignee § 45 p. 8G 
 
 creditor of an estate, in suit by receiver .... § 45 p. 80 
 surviving parties, in suits by or against strangers 
 
 affecting partnerships § 45 p. 86 
 
 tenant in tail . . . . § 45 p. 86 
 
 tenant for life § 45 p. 86 
 
 trust property § 45 p. 86 
 
 beneficiaries § 45 pp. 86-87 
 
 trustees § 45 pp. 86-87 
 
 under railroad mortgagp . § 45 p. 89 
 stockholders, upon suits for accounting against 
 
 corporation § 45 p. 88 
 
 members of unincorporated associations ... § 45 p. 88
 
 INDEX. 781 
 
 PARTIES — continued. 
 
 suits by a complainant on behalf of himself and others 
 
 similarly situated § 46 pp. 88-80 
 
 Story's classification . . . . § 46 p. 88 
 
 illustrations of § 47 pp. 89-90 
 
 stockholders of corporations § 47 p. 89 
 
 creditors § 47 p. 90 
 
 members of unincorporated associations ... §17 p. 89 
 
 railroad bondholders § 47 p. 90 
 
 legatees § 47 p. 90 
 
 next of kin § 47 p. 90 
 
 partners § 47 p. 90 
 
 one of a class for whom a charity was founded . § 47 p. 90 
 
 one of crew of privateer seeking prize money . . §47 p. 90 
 
 suits against one or more of a class § 48 pp. 90-91 
 
 numerous parties § 48 p. 90 
 
 committee representing other litigants § 48 p. 90 
 
 members of clubs and unincorporated associations . § 48 p. 90 
 
 stockholders of corporation § 48 p. 90 
 
 general rule stated where parties are very numerous . § 48 p. 91 
 suits by or against one or more as representatives of a class 
 
 claiming a common right § 49 pp. 91-92 
 
 general rule § 49 p. 91 
 
 estates coming from a common source § 49 p. 91 
 
 tenants § 49 p. 91 
 
 parishioners § 49 p. 91 
 
 lord of the manor § 49 p. 92 
 
 holders of certificates of indebtedness § 49 p. 92 
 
 purchaser of lands § 49 p. 92 
 
 city to levy duty § 49 p. 92 
 
 omission of defendants not within jurisdiction of the court § 50 pp. 92-95 
 
 whether decree binding against § 50 pp. 93-94 
 formal parties who may be omitted when without the 
 
 jurisdiction § 51 p. 95 
 
 husband, in suit by wife in certain cases § 51 p. 95 
 
 trustees of railroad mortgage not opposing bondhold- 
 er's suit § 51 p. 95 
 
 person against whom injunction is sought is not . . § 51 p 96 
 
 parties whose interest is separable § 52 pp. 96-98 
 
 trustee or director, in suit against colleagues for breach 
 
 of trust § 52 p. 96 
 
 next of kin, in suits against administrator and sureties § 52 p. 96 
 
 suits by legatees to recover share of decedent's estates § 52 p. 96 
 
 subsequent lienor in foreclosure suit § 52 p. 96 
 
 partner beyond jurisdiction, in suit by strangers . . § 52 p. 96 
 
 in suits by other partner §52 p. 96 
 
 contractors owning joint interest § 52 p. 97 
 
 suit by heir § 52 p. 97 
 
 specific performance for sale of lands § 52 p. 97 
 
 assignor of claim, in suit by assignee § 52 p. 97 
 
 stockholders' suits § 52 p. 97
 
 7S2 INDEX. 
 
 PARTIES — continued. 
 
 suits by indorsers § 52 p. 97 
 
 by creditors to reach lands of debtor § 52 p. 97 
 
 suit to enjoin execution of judgment § 52 p. 97 
 
 maintenance of public nuisance ... § 52 p. 98 
 
 by parties against State to restrain illegal tax . § 52 p 98 
 
 parties indispensable to a decree § 53 pp. 98-102 
 
 all who will be directly affected by the decree sought § 53 p. 98 
 or whose obedience is necessary to enforcement of 
 
 decree § 53 p. 99 
 
 when a person is affected § 53 p. 99 
 
 if decree would cast cloud upon another's title ... § 53 p. 9!) 
 
 when State is a necessary party § 53 p. 99 
 
 trustee of an active trust § 53 p. 99 
 
 party to contract in suits affecting § 53 p. 99 
 
 in action between partners for accounting .... § 53 p. 99 
 
 00 
 
 CO 
 
 tenants in common in partition suit § 53 p 
 
 person claiming title or interest in property ... § 53 p. 
 mortgagor, in suit by mortgagee against third party 
 
 to remove cloud upon title § 53 p. 
 
 in suits for specific performance of contract affecting 
 
 lands § 53 p. 
 
 suits by stockholders to set aside foreclosure of rail- 
 road mortgage § 53 p. 
 
 corporation, in suits against third person § 53 p. 
 
 assignee of debtor, in suits against surety .... § 53 p. 
 
 bills by legatees § 53 p. 
 
 prior incumbrancers, in suits to compel execution of 
 
 mortgage § 53 p. 
 
 staying proceedings in ejectment § 53 p. 
 
 when numerous interests have been created for the pur- 
 pose of preventing the plaintiff from obtaining 
 
 equitable relief § 54 p. 
 
 Lord Hardwicke's view of this subject ..... § 51 p. 
 
 when a person consents to relief sought § 55 p. 
 
 or disclaims all interest in subject-matter .... § 55 p. 
 agreements between persons to represent each other as 
 
 plaintiffs, not sanctioned § 55 p. 
 
 when the plaintiff waives his right against a person . . § 5(3 p. 
 
 when interest of absent party is evidently very small . . § 57 p. 
 
 when right of administration is in dispute § ."8 p. 
 
 relaxation of rule in special cases §59 p- 
 
 largely in discretion of court §59 pp. 103- 
 
 summarized statement of the rules relating to parties §60 pp. 11)4- 
 
 objection for want of parties, how taken .... §01 pp. 105- 
 
 joinder of improper parties .... § G2 pp. 106 
 
 who may demur § 62 p. 
 
 demurrer cannot be raised for first time 
 
 on appeal § 62 p. 
 
 want of proper, a ground of demurrer .......§ 108 p. 
 
 plea of want of § 130 p.
 
 INDEX. 783 
 
 PARTIES — continued. 
 
 dismissing bill with costs, where a disclaimer is made 
 and it appears that defendant was made a party with- 
 out reason § 155 p. 228 
 
 to bills of revivor § 179 p. 261 
 
 to supplemental bills § 188 pp. 272-273 
 
 when to sign notice of motion § 197 p. 283 
 
 to motions and petitions § 197 p. 284 
 
 who may make petition § 199 p. 287 
 
 intervening § 201 pp. 290-292 
 
 signature of , to petition for intervention §202 p. 292 
 
 not usually appointed receiver § 255 p. 380 
 
 nor the son or brother of § 255 p. 380 
 
 objections as to, whether can be raised at hearing ... § 299 p. 115 
 who are entitled to attend a reference before a master § 310 pp. 456-457 
 
 to whom costs will be awarded § 327 pp. 477-4S1 
 
 costs between party and party, what they consist of . . § 329 p. 481 
 
 attorney's costs belong to, and not to attorney .... § 330 p. 483 
 
 joinder of, how far State practice concerning, is followed § 3G0 p. 530 
 order for examination of party before trial made prior to 
 
 removal to Federal court, effect of removal upon ... § 392 p. 589 
 
 who must join in writ of error or appeal § 397 p. 598 
 
 death of, pending appeal or writ of error § 397 p. 599 
 
 death of, before time allowed for taking appeal or bring- 
 ing writ of error has expiied §397 p. 599 
 
 death of, pending appeal or writ of error § 397 p. 599 
 
 See also Abatement and Revivor; Plaintiffs and Defendants; 
 Removal of Causes. 
 
 PARTITION 7 , 
 
 tenants in common, necessary parties to suit for. ... § 53 p. 100 
 
 PARTNERS, 
 
 accounting between, necessary parties to § 53 p. 99 
 
 necessary parties to suits brought by one of, and on behalf 
 
 of others similarly situated § 47 p. 90 
 
 whether a necessary party to suit against firm .... § 52 p. 9(3 
 
 whether necessary when sued to account by other partners §52 p 96 
 
 PARTNERSHIP, 
 
 necessary parties in suits affecting property of ... . § 45 p. 86 
 
 alternative relief in actions affecting §70 p. 118 
 
 when receiver will be appointed in suits affecting . . . §210 p. 313 
 
 PARTY INTERESTED, 
 
 not excluded from testifying , . . . § 274 p. 409 
 
 PASSING A CAUSE, 
 
 practice upon, in Supreme Court § 108 p. 620 
 
 PATENTS, 
 
 effect of State statutes of limitation upon § 8 p. 10 
 
 for invention, bill to cancel § 11 p. 12 
 
 for land, bill to cancel §11 p. 12 
 
 reached by creditor's bii] § 11 p. 11 
 
 for lands, not set aside at suit of private citizen ... § 12 pp. 17-18
 
 784 INDEX. 
 
 PATENTS — continued. 
 
 necessary parties to suit by equitable assignees of . . . § 44 p. 84 
 
 multifariousness in bills to enjoin violation of .... § 74 p. 125 
 allegations in bill to impeach patent or grant by United 
 
 States, not brought by attorney-general § 76 p. 128 
 
 allegations in bills to restrain infringement of § 77 pp. 129-131 
 
 bill filed by United States to vacate patent for public 
 
 lands, what to contain § 84 p. 130 
 
 injunctions to prevent infringement of §210 p. 302; §210 pp. 310-314 
 
 introducing in evidence copies of foreign § 268 p. 400 
 
 costs in suits founded on § 327 p. 480 
 
 action for infringement of, survives to representatives of 
 
 the patentee § 373 p. 554 
 
 writs of error to review decrees concerning § 394 p. 593 
 
 PATENT CASES, 
 
 when State statutes of limitations are followed .... § 8 p. 10 
 
 accounting in § 11 pp. 14-15 
 
 whether jurisdiction depends on value of subject-matter . § 15 p. 22 
 
 jurisdiction in § 17 p. 25 
 
 in Southern District of New York, special limitation upon 
 
 jurisdiction § 23 p. 32 
 
 defenses peculiar to § 145 pp. 212-216 
 
 pleas in § 124 pp. 1S8, 189; § 128 p. 193; § 133 p. 200 
 
 decrees in ' • § 325 p. 475 
 
 PAUPER, 
 
 petitions for leave to sue as a poor person .... § 200 pp. 288-290 
 See also Interlocutory Applications. 
 
 PAUPER'S FEES. 
 
 allowed to counsel assigned to person suing in forma 
 pauperis § 200 p. 289 
 
 PEACE. 
 
 See Bill of Peace. 
 
 PECK, JUDGE. 
 
 impeachment trial of, for inflicting punishment for a-criti- 
 
 cisrn upon one of his decisions <,...§ 341 p. 502 
 
 PEER, 
 
 appointment of, as receiver § 255 p. 380 
 
 PENALTY, 
 
 as a subject of relief in equity § 2 p. 3 
 
 no person compelled to discover that which will expose 
 
 him to a § 84 p. 110 
 
 defendant may demur to bill if his answer subject him 
 
 to a § 109 p. 177 
 
 for disobeying writ of injunction § 234 p. 335 
 
 survivability of action to recover § 373 pp. 553-554 
 
 of bond, on removal for grounds other than prejudice or 
 local influence, or in controversies between citizens of 
 the same State claiming land under grants of different 
 States ' § 385 p. 573
 
 INDEX. 785 
 
 PENDENCY OF ANOTHER SUIT, 
 
 objection of, can be taken by demurrer § 108 p. 176 
 
 subject of, plea in defense § 129 pp. 193-196 
 
 PENNSYLVANIA, 
 
 divided into two districts § 26 p. 51 
 
 counties, times, and places of 
 holding court therein enume- 
 rated § 26 pp. 51-52 
 
 districts of, included within the Third Circuit .... § 204 p. 295 
 
 PENSIONS, 
 
 no suits against United States to collect § 15 p. 21 
 
 PERFORMANCE, 
 
 specific, as a ground of equitable jurisdiction § 2 p. 4 
 
 See also Specific Performance. 
 
 PERJURY, 
 
 when affiant can be convicted of perjury in an affidavit . § 271 p. 407 
 
 PERPETUAL INJUNCTIONS, 
 
 distinguished from other forms § 205 p. 297 
 
 when granted, what must be shown § 238 pp. 340-311 
 
 PERPETUATING TESTIMONY, 
 
 as a subject of jurisdiction in equity § 2 p. 4 
 
 bills for §64 p. 110; § 279 pp. 413-415 
 
 PERSON, 
 
 causes of demurrers to the § 108 p. 174 
 
 pleas to the § 127 pp. 191-192 
 
 PERSONAL PROPERTY, 
 
 injunctions to compel delivery of §221 p. 319 
 
 PERSONAL REPRESENTATIVES, 
 
 necessary parties to suit against heir upon ancestor's cove- 
 nants § 42 p. 82 
 
 bills of revivor affecting §177 p. 260 
 
 bills of revivor by § 181 p. 263 
 
 right of, to appeal or bring writ of error § 397 p. 599 
 
 publication of order requiring, to become party to appeal 
 
 or writ of error § 397 p. 609 
 
 See Administrators; Executors. 
 PETITION, 
 
 for removal on grounds other than prejudice or local influ- 
 ence, or in controversies between citizens of the same 
 State claiming land under grants of different States . § 385 p. 572 
 on removal of cause to Federal court, denying allegations 
 
 of § 393 p. 590 
 
 for writ of error § 899 p. 603 
 
 in cases of removal of cause or criminal proceeding See Removal of 
 Cause. 
 
 See also Interlocutory Applications. 
 
 PHYSICIAN, 
 
 testimony of, as to information acquired professionally . § 271 p. 410 
 
 50
 
 786 INDEX. 
 
 PLAINTIFF, 
 
 pleadings of. See Bills. 
 
 PLAINTIFFS, 
 
 who are capable of being § 28 p. 64 
 
 rules as to, alien enemies §§ 28, 30 p. G4 
 
 infants § 28 p. 64; § 32 pp. 65-67 
 
 idiots § 28 p. 64; § 33 pp. 66-67 
 
 lunatics §§ 28, 31 pp. 64-65 
 
 married women §§ 28, 31 pp. 64-65 
 
 persons declared by State laws to be civilly dead § 28 p. 64 
 capacity of foreign executors, administrators, and receivers § 34 p. 68 
 all persons should be made, who are interested in relief 
 
 prayed for § 42 p. 81 
 
 receiver usually appointed upon application of .... § 253 p. 378 
 
 dismissal of bills by § 291 pp. 434-435 
 
 misjoinder of. See Bills. 
 
 See also Intervention ; Parties. 
 
 PLEAS, 
 
 definition and classification of § 124 pp. 188-190 
 
 Lord Redesdale's . . . . § 124 p. 188 
 how many grounds of defence can be presented by ... § 124 p. 188 
 
 what plea should state § 124 p. 189 
 
 pleas in abatement in general § 125 pp. 190-191 
 
 to the jurisdiction § 126 p. 191 
 
 person §128 pp. 192-193 
 
 bill . §128 pp. 192-193 
 
 as a mode of objecting to multifariousness in bills . § 75 p. 126 
 
 of pendency of another suit § 129 pp. 193-196 
 
 want of parties . . . § 61 pp. 105-106; § 130 pp. 196-197 
 
 statute § 131 pp. 196-198 
 
 matter of record § 132 pp. 198-199 
 
 in pais § 133 pp. 199-200 
 
 to the discovery § 134 p. 200 
 
 when plea must be filed . . . § 111 pp. 178-179; § 135 pp. 200-201 
 
 frame and requisites of plea §136 pp. 201-202 
 
 answers with pleas § 137 pp. 202-204 
 
 proceedings of plaintiff on the filing of a plea . . § 138 pp. 204-205 
 
 motion to°take off the file § 139 p. 205 
 
 effect of failure to set down for argument § 120 p 184 
 
 argument of plea § 140 pp. 20G-208 
 
 motion for reference of plea . § 141 pp. 208-209 
 
 hearing upon plea §142 pp. 209-210 
 
 general remarks upon pleas § 143 p- -10 
 
 when bill may be amended before § 164 p. 240 
 
 amendments of § 166 p. 242 
 
 statute of limitations may be set up to bill of revivor by . § 181 p. 265 
 
 to supplemental bill . § 1S9 p. 275 
 
 injunction will not usually be granted while plea to bill is 
 
 pending § 228 p. 327 
 
 when a constructive admission § 266 p. 396 
 
 which may be disregarded at hearing § 299 p. 445
 
 INDEX. 787 
 
 PLEA IN ABATEMENT, 
 
 when necessary, on denying allegations in petition filed 
 
 for removal of cause to Federal court § 393 p. 590 
 
 upon writ of error there is no reversal for error in ruling 
 on any plea in abatement, such as the plea of the pen- 
 dency of another suit, other than a plea to jurisdiction 
 
 of court § 394 p. 591 
 
 See also Abatement; Plea. 
 
 PLEADINGS, 
 
 recital of, in decrees § 325 p. 474 
 
 how far State practice respecting verification, time, service 
 
 and amendment of, is followed § 360 p. 530 
 
 granting order for examination of opposite party to frame § 372 p. 552 
 what rules relative to sufficiency and scope govern in Fed- 
 eral court § 374 p. 556 
 
 amendment of, after removal of cause to Federal court . § 391 p. 587 
 See also Bill; Repleader. 
 
 POINTS. 
 
 See Briefs. 
 
 POLITICAL PJGI1T, 
 
 injunction will not be issued to prevent a mere political 
 
 right § 223 p. 321 
 
 POLLOCK, CHIEF BARON, 
 
 quotation from, on the necessity of private party alleging 
 special damage, on applying for injunction founded on 
 a violation of statute § 207 p. 300 
 
 POLYGAMY, 
 
 writ of error to review conviction of, in Supreme Court of 
 
 Utah § 394 p. 593 
 
 POOR PERSON, 
 
 petitions for leave to sue as § 200 pp. 2S8-290 
 
 POSSE COMITATUS. 
 
 See Execution of Decrees and Orders. 
 
 POSSESSION, 
 
 injunctions to quiet, before hearing, practice respecting, 
 
 in former times § 209 p. 302 
 
 POSTAL LAWS, 
 
 jurisdiction of suits under § 15 p. 22 
 
 POSTEA, 
 
 proceedings after the trial of an issue and completion of 
 
 the record by the addition of the postea § 306 p. 453 
 
 POSTMASTERS, 
 
 introducing in evidence copies of the quarterly return of § 268 p. 390 
 
 POSTPONEMENT, 
 
 of argument of important constitutional questions ... § 408 p. 620 
 
 POWER?, 
 
 of receivers in general § 215 pp. 359-361 
 
 of railroads § 216 pp. 361-365
 
 788 index. 
 
 PRACTICE AT COMMON LAW, 
 
 in general § 360 pp. 529-531 
 
 how far practice of State courts is followed . . §360 p. 529 
 
 writs and process in general § 361 pp. 531-532 
 
 of prohibition § 362 pp. 532-533 
 
 mandamus § 363 pp. 533-537 
 
 practice on application for . . § 364 pp. 537-539 
 
 certiorari § 365 p. 540 
 
 habeas corpus, in general § 366 pp. 541-545 
 
 practice on application for . . § 367 pp. 545-548 
 
 appeals in § 368 pp. 548-549 
 
 attachment of property § 369 p. 549 
 
 arrests § 370 p. 550 
 
 consolidation at law and in equity § 371 pp. 550-551 
 
 evidence, testimony, and depositions § 372 pp. 551-553 
 
 abatement and revivor § 373 pp. 553-554 
 
 trials of issues of fact in actions at common law . § 374 pp. 554-556 
 rules of decision " " " . § 375 pp. 556-559 
 
 new trials § 376 p. 559 
 
 bills of exceptions § 377 pp. 559-560 
 
 judgments § 378 pp. 560-561 
 
 correction of, by courts that rendered them § 379 pp. 561-582 
 executions and proceedings supplementary thereto . § 380 pp. 562-565 
 condemnation proceedings § 381 p. 565 
 
 PRACTICE IX FEDERAL COURTS, 
 
 by what rules and statutes regulated § 27 pp. 56-57 
 
 PRAECIPE, 
 
 to clerk to enter an appearance §100 p. 161 
 
 PRAYER, 
 
 of judgment in demurrer § 117 pp. 182-183 
 
 PRAYER FOR GENERAL RELIEF, 
 
 embodied in notice of motion § 197 p. 281 
 
 PRAYER OF PROCESS, 
 
 in bills § 85 pp. 140-141 
 
 PRAYER FOR RELIEF, 
 
 what to contain §83 pp. 136-137 
 
 that plaintiff is not entitled to, a ground of demurrer . . § 108 p. 175 
 answer cannot ordinarily pray relief against complainant, 
 
 and never against co-defendant § 144 p. 211 
 
 PRECEDENTS, 
 
 force of, in equity § 1 P- * 
 
 PREFERENCES, 
 
 of certain claims in railroad foreclosure suits § 243 p. 347 
 
 among appeals on calendar of Supreme Court .... § 408 p. 619 
 
 PREJUDICE, 
 
 practice on removal of cause for grounds other than pre- 
 judice . §3S5 p. 572 
 
 practice on removal of cause for prejudice or local influ- 
 ence § 386 pp. 575-580
 
 INDEX. 789 
 
 PRELIMINARY INJUNCTIONS. See Injunctions. 
 PRESIDENT, 
 
 of United States, when suable § 12 p. 15; § 35 p 68 
 
 writs of error issued in name of § 399 p. 0U2 
 
 whether amenable to process of Federal courts .... § 98 p. 159 
 PRESUMPTION, 
 
 as to citizenship of members of corporation .... § 19 pp. 2G-27 
 PRINTED ARGUMENTS, 
 
 in Supreme Court § 408 pp. 621-022 
 
 PRINTING, 
 
 the record on appeals or writs of error § -107 pp. 617-G19 
 
 PRIOR INCUMBRANCERS, 
 
 when necessary to make parties to bill of foreclosure . . § 44 p. 83 
 whether necessary parties to suit to compel execution of 
 
 mortgage § 53 p. 101 
 
 PRIOR PROCEEDINGS, 
 
 in cause before removal to Federal court, effect of removal 
 
 on same § 392 p. 588 
 
 PRISONER, 
 
 time of, to bring appeal, or writ of error § 398 p. G02 
 
 time to review judgment of District Court by Circuit 
 
 Court in the case of a § 404 p. 611 
 
 See Habeas Cokpus. 
 PRIVATE LETTERS, 
 
 injunction to restrain publication of § 206 p. 298 
 
 injunctions to prevent the unauthorized opening of ... § 210 p. 302 
 PRIVATE PARTY, 
 
 when must allege special damage, to obtain injunction 
 
 founded on violation of statute § 207 p. 300 
 
 PRIVITY, 
 
 necessary to entitle one to revive a suit § 177 p. 259 
 
 PRIZE CAUSES, 
 
 appeals in § 394 p. 590 
 
 time within which appeals in, must be taken § 398 p. 601 
 
 See also Crew. 
 PRIZE MONEY, 
 
 necessary parties to suit to recover, by one of crew on be- 
 half of himself and others similarly situated .... § 47 p. 90 
 PROBATE, 
 
 State statute authorizing setting aside of, enforceable in 
 
 Federal court § 7 p. 9 
 
 not set aside by equity § 12 p. IS 
 
 PROCEDURE, 
 
 State statutes regulating procedure in Federal courts § 374 pp. 555-550 
 PROCESS, 
 
 prayer of, in bills § 85 pp. 140-141 
 
 common-law procedure respecting § 300 p. 530 
 
 how far State practice respecting service of, followed . . § 300 p. 530 
 See also Suhi-cexas to Atpear and Answek. 
 See also Practice at Common Law.
 
 790 INDEX. 
 
 PRO CONFESSO, 
 
 decrees taking bills .... §§103-104 pp. 164-169; § 149 p. 221 
 
 appeal from decree entered pro confesso § 397 p. 601 
 
 See also Taking Bills Pro Confesso. 
 
 PRODUCTION, 
 
 of books and papers, affidavit for § 267 p. 398 
 
 PROFERT, 
 
 of patent, in bill to enjoin infringement § 77 p. 129 
 
 PROFESSIONAL CONFIDENCE, 
 
 defendant may demur to bill if his answer would involve 
 
 a breach of § 109 p. 177 
 
 PROFITS OF TRADE, 
 
 no injunction against corporation for merely diminishing 
 
 the profits of a private individua § 207 p. 300 
 
 See also Monopoly. 
 PRO HAC VICE, 
 
 appointing master pro hac vice in a particular case ... § 308 p. 455 
 
 PROHIBITION, 
 
 writ of, distinguished from injunction to stay proceedings 
 
 in other courts § 211 p. 303 
 
 how far State practice respecting writs of prohibition fol- 
 lowed § 362 pp. 532-533 
 
 included in the term " suit " for the purpose of a writ of 
 
 error from the Supreme Court to State court .... § 405 p. 614 
 
 PROHIBITORY INJUNCTIONS. 
 
 See Injunctions. 
 PROLIXITY, 
 
 in bills § 159 p. 233 
 
 PROOF. 
 
 See Evidence; Practice at Common Law. 
 
 PROPERTY, 
 
 as conferring jurisdiction in equity § 1 p. 2 
 
 in custody of State court, jurisdiction of Federal court over § 9 pp. 11-12 
 
 what court deemed to have custody of § 9 p. 11 
 
 in custody of Federal court, what rules apply § 10 p. 12 
 
 value of matter in dispute to confer jurisdiction ... § 16 pp. 23-25 
 principle that no question affecting a person's, to be decided 
 
 without his presence, applicable to equity § 42 p. 81 
 
 claimed by persons under inconsistent titles § 44 p. 84 
 
 held in trust, who necessary parties in suits affecting . . § 45 p. 86 
 necessary parties in suits affecting partnership . . . . § 45 p. 86 
 person claiming title or interest in, when necessary party 
 
 to suit affecting § 53 p. 100 
 
 petition to maintain infant out of his § 199 p. 288 
 
 injunction to compel delivery of § 210 p. 302 
 
 injunction to restrain the alienation of § 212 pp. 305-306 
 
 injunction to compel delivery of personal property ... § 221 p. 319 
 
 over which receivers may be appointed § 244 pp. 356-359 
 
 attachment of § 369 p. 519
 
 INDEX. 
 
 791 
 
 PROPERTY — continued. 
 
 how far local rules of property established by State court 
 
 decisions are binding upon the Federal tribunals . . . § 375 p. 557 
 
 death, removal, or expiration of term of marshal after tak- 
 ing property in execution § 380 p- 563 
 
 security required on applying for supersedeas § 402 p. 606 
 
 See also Receiver. 
 PROSECUTION, 
 
 dismissal of bills for want of § 292 pp. 43o-436 
 
 criminal. See Criminal Prosecution. 
 PROTESTATION, 
 
 to demurrer, no longer necessary § 113 p. 179 
 
 PROVISIONAL INJUNCTIONS, 
 
 distinguished from other forms . § 205 p. 297 
 
 See also Injunctions. 
 PROVISIONAL REMEDIES, 
 
 common-law procedure respecting § 360 p. 530 
 
 PUBLICATION, _ 
 
 service of process by § 97 pp. 157-159 
 
 of order requiring representative of deceased party to be- 
 come party to appeal or writ of error § 397 p. 600 
 
 PUBLIC AUCTION, 
 
 sales at, by masters § 316 p. 403 
 
 PUBLIC LAWS, 
 
 how introduced in evidence. See Evidence. 
 PUBLIC MINISTERS, 
 
 where sued § 14 pp. 20-21 
 
 PUBLIC OFFICE, 
 
 defendant may demur to bill if his answer would involve 
 
 a breach of confidence obtained in a § 109 p. 177 
 
 PUBLIC OFFICER, 
 
 no discovery can be required of § 148 p. 219 
 
 PUBLIC PROPERTY, 
 
 when receiver cannot be appointed over § 244 p. 356 
 
 PUIS DARREIN CONTINUANCE, 
 
 plea of, cross-bills a substitute for § 171 p- 250 
 
 PURCHASERS, 
 
 at master's sales § 316 p. 464 
 
 PURE PLEA, 
 
 defined § 124 p. 1S9 
 
 PURPRESTURES, 
 
 defined, distinction between nuisances and ... § 214 pp. 307-308 
 
 Q- 
 
 QUALIFICATIONS, 
 
 of receiver § 255 p. 379 
 
 master § 308 p. 455
 
 792 INDEX. 
 
 QUESTION OF GENERAL IMPORTANCE, 
 
 certification of, by judge of District Court for purpose of 
 
 appeal § 394 p. 592 
 
 QUIBUSDAM CERTIS DE CAUSIS, 
 
 writ of § 91 p. 148 
 
 QUIETING TITLE, 
 
 alternative relief in bill for §70 p. 118 
 
 QUI TAM, 
 
 survivability of actions to recover penalty under United 
 
 States statute § 373 pp. 553-554 
 
 QUO WARRANTO, 
 
 writ of § 15 p. 22 
 
 R. 
 
 RAILROADS, 
 
 compliance with Inter-state Commerce Act compellable in 
 
 certain cases by injunction §*222 p. 321 
 
 by mandamus § 363 p. 536 
 
 receivers to manage § 241 p. 357 
 
 power of receivers of § 246 pp. 361-305 
 
 RAILROAD BONDHOLDERS, 
 
 parties to suits by on behalf of themselves and others 
 
 similarly situated § 47 p. 89 
 
 RAILROAD FORECLOSURE, 
 
 jurisdiction § 319 p. 468 
 
 parties to . . § 44 pp. 83-S4 ; § 45 p. 87; § 47 p. 90 ; § 51 p. 95; 
 
 § 52 p. 96 ; § 53 pp. 100-101 
 decrees in ... §316 p. 404; § 321 p. 470; § 321; pp. 470-473; 
 
 § 325 p. 476 
 
 appointing receiver in § 240 p. 345 
 
 terms upon appointing receivers in § 243 p. 347 
 
 See Foreclosure ; Preferences: Receivers. 
 RAILROAD LEASE, 
 
 specifically performed ..§11 p. 14 
 
 parties to accounting under § 45 p. 88 
 
 RAILROAD MORTGAGE, 
 
 trustees under, when necessary parties to suits affecting 
 
 property covered by § 45 p. 87 
 
 when trustees of, need not be made parties to bondholder's 
 
 foreclosure suit § 51 p. 95 
 
 necessary parties in suits by stockholders to set aside fore- 
 closure of § 53 p. 100 
 
 sales under § 316 pp. 463-465 
 
 See Mortgage. 
 READING, 
 
 affidavit to person unable to read § 270 p. 406 
 
 RE-AFFIRMANCE, 
 
 power of Supreme Court to order § 409 p. 623
 
 INDEX. 793 
 
 REAL ACTIONS, 
 
 cannot be revived § 373 p. 554 
 
 security required ou applying for supersedeas in ... § 402 p. GOG 
 
 REAL PROPERTY, 
 
 required for United States government, practice in con- 
 demnation proceedings to acquire § 381 p. 565 
 
 See also Execution; Land. 
 REARGUMENT, 
 
 in Supreme Court § 403 p. 622 
 
 RECEIPTS, 
 
 to be taken by receivers § 250 p. 373 
 
 RECEIVER, 
 
 removal of case after appointment § 9 p. 11 
 
 not appointed to levy or collect tax § 12 p. 16 
 
 cannot enforce collateral obligation given creditors . . . § 12 p. 18 
 
 when appointed at prayer of insolvent § 12 p. 18 
 
 suits by § 10 p. 26 
 
 capacity of foreign, to sue § 34 p. 6S 
 
 citizenship of, as affecting jurisdiction § 19 p. 20 
 
 when cannot be sued § 35 p. 08 
 
 when expenses for infant will not be advanced out of 
 
 funds in hands of § 39 p. 79 
 
 who necessary parties on a bill to foreclose a mortgage 
 
 praying for a § 44 p. 83 
 
 bill by, of national bank for loss caused by negligence of 
 
 directors § 09 p. 116 
 
 motion for appointment of, when can be made .... § 197 p. 284 
 
 petition for leatve to sue § 199 p. 288 
 
 defined § 239 p. 342 
 
 when will be appointed §240 pp. 342-3 Id 
 
 rules regulating the appointment § 241 p. 340 
 
 ancillary receivers § 242 pp. 340-347 
 
 terms upon the appointment of receivers and prefer- 
 ences in foreclosure suits § 243 pp. 347-3.15 
 
 property over which receivers may be appointed . §214 pp. 356-359 
 powers of receivers in general . ..*.... §245 pp. 359-361 
 
 365 
 303 
 
 of railroads § 210 pp. 361 
 
 receivers' certificates §217 pp. 305- 
 
 advice to receivers § 248 pp. 368-369 
 
 172 
 171 
 171 
 376 
 178 
 579 
 379 
 
 litigation by receivers § 249 pp. 3G9 
 
 interference with duties of . . . § 249 p. 
 
 duties of § 250 ' pp. 372 
 
 liability of §251 pp. 374- 
 
 manner of applying for the appointment of ... § 252 pp, 376 
 
 who may apply " " " ... § 253 pp, 378 
 
 manner of appointment § 254 p. 
 
 who should be appointed § 255 pp. 379-381 
 
 security by § 256 pp. 381-383 
 
 accounts of §11 p. 14; § 257 pp. 383-384 
 
 compensation of §258 pp. 381 385
 
 794 INDEX. 
 
 RECEIVER — continued. 
 
 removal of . § 259 pp. 385-387 
 
 discharge of § 260 pp. 387-388 
 
 may be put in possession by means of writ of assistance § 318 p. 510 
 appointed before removal of cause to Federal court, effect 
 
 of removal upon § 392 pp. 588-589 
 
 right of to appeal § 397 p. 598 
 
 right to appeal from decree for the delivery of property to § 318 p. 467 
 
 RECEIVERS' CERTIFICATES. 
 
 See Receivers. 
 
 RECEIVER OF NATIONAL BANK, 
 
 jurisdiction of action at common law by § 15 p. 22 
 
 RECITALS, 
 
 in decrees § 325 p. 474 
 
 RECOGNIZANCE, 
 
 by receiver § 256 p. 382 
 
 RECONVENTIO, 
 
 of the later civil law, the origin of cross-bill § 169 p. 246 
 
 RECORD, 
 
 pleas of matter of § 132 pp. 198-199 
 
 introduction of, in evidence § 268 pp. 398-406 
 
 filing of, after removal to Federal court § 390 pp. 583-585 
 
 affidavits to show value of matter in dispute where the 
 
 same does not appear in the record § 395 p. 596 
 
 failure of plaintiff in error to docket case and file record 
 
 in time § 403 p. 609 
 
 authentication on return of writ of error § 403 p. 607 
 
 defendant in error may, if he chooses, docket the cause 
 
 and file the record § 403 p. 610 
 
 printing, on appeals and writs of errors § 407 pp. G17-619 
 
 RECORDING ACTS, 
 
 how far Federal tribunals follow recording acts of the 
 
 States in which they are held § 375 p. 558 
 
 REDEMPTION, 
 
 of mortgaged property § 6 p. 8 
 
 State statute giving mortgagor right of, enforceable in 
 
 Federal courts § 7 p. 9 
 
 when mortgagor who has sold equity of, is a necessary 
 
 party to foreclosure § 44 p. 84 
 
 bill for, must contain offer to pay what is due thereon . § 84 p. 138 
 
 REDESDALE, LORD, 
 
 classification by, of demurrers to relief § 108 pp. 174-177 
 
 definition and classification of pleas by § 124 p. 188 
 
 definition by, of supplemental bill § 187 p. 270 
 
 practice according to, respecting supplemental bill ... § 187 p. 271 
 
 on bills of review §356 p. 523; §357 p. 526 
 
 on impeaching decrees improperly obtained in cases of 
 
 trusts and trustees § 358 p. 527 
 
 on bills for suspending or avoiding operation of decrees . § 359 p. 527
 
 INDEX. 795 
 
 REFERENCE, 
 
 of bills for scandal and impertinence §68 p. 11. j 
 
 motion for, of a plea § 141 pp. 208-209 
 
 ordered upon hearing to master to take accounts and as- 
 sess damages • • § 300 p. 446 
 
 costs where master reports in favor of plaintiff for nominal 
 
 damages § 327 p. 479 
 
 State statute providing for a compulsory reference, effect 
 
 of, in Federal court § 374 p. 556 
 
 See also Master. 
 REFORMATION, 
 
 of instrument § 11 p. 13 
 
 of insurance policy, when bill for, is ancillary .... § 21 p. 28 
 REHEARING, 
 
 in Supreme Court > § 408 p. 622 
 
 See also Correction of Decree otherwise than by Appeal. 
 
 REISSUED PATENT, 
 
 allegations as to, iu bill to enjoin infringement .... § 77 p. 129 
 
 demurrer to bill for injunction to restrain infringement of § 108 p. 176 
 
 plea to bill for injunction to restrain infringement of . . § 133 p. 200 
 
 REJECTED CLAIMS, 
 
 when suits lie as against United States § 15 p. 22 
 
 RELATOR, 
 
 under English practice § 63 p. 108 
 
 effect of death of , upon proceedings § 63 p. 108 
 
 motion on behalf of, under an information § 197 p. 284 
 
 on application for mandamus § 364 p. 537 
 
 RELIEF, 
 
 decision to provide for all the rights which different per- 
 sons have in the matters decided § 42 p. 81 
 
 distinction between courts of law and equity as to afford- 
 ing complete § 42 p. 81 
 
 consent to, as affecting necessary parties § 55 pp. 102-103 
 
 demanded, when may be stated in the alternative . . § 70 pp. 117-118 
 
 prayer for §83 pp. 130-137 
 
 classification of demurrers to § 108 pp. 174-177 
 
 that plaintiff not entitled to relief prayed for, ground of 
 
 demurrer § 108 p. 175 
 
 answer cannot ordinarily pray against complainant, and 
 
 never against co-defendant § 144 p. 211 
 
 notice of motion for general § 197 p. 284 
 
 RELIGIOUS FEELINGS, 
 
 injunction will not be issued to prevent mere outrage of . § 223 p. 321 
 
 REMAINDER-MEN, 
 
 whether necessary parties in suits affecting estate ... § 15 p. 80 
 
 REMAND, 
 
 in general § 393 pp. 598-590 
 
 costs imposed upon S 393 p. 590 
 
 by Circuit Court in case of reversal of conviction had in 
 " District Court §1"! P- 612
 
 796 INDEX. 
 
 REMANDING, 
 
 whether a second petition can be filed for removal after a 
 
 case has been remanded § 391 p. 587 
 
 causes improperly or collusively removed to Federal 
 
 court § 393 pp. 589-590 
 
 appeals from order for remand § 393 p. 590 
 
 REMEDIAL WRITS, 
 
 as distinguished from other forms of injunctions ... § 205 p. 297 
 See Injunctions. 
 REMEDY, 
 
 dismissal of bill for plaintiff's failure to elect whether he 
 
 will proceed at law or in equity § 295 pp. 439-4-10 
 
 how far State statutes affecting, are followed in Federal 
 
 tribunals § 375 p. 557 
 
 REMEDY AT LAW, 
 
 what is deemed an adequate § 5 pp. 7-8 
 
 a statement that plaintiff is without, no longer necessary 
 
 in bills § 65 p. 112 
 
 objection that plaintiff has an adequate, must be specifi- 
 cally raised in a demurrer, plea, or answer § 110 p. 178 
 
 objection that plaintiff has, may be taken by demurrer, 
 
 plea, or answer § 125 p. 191 
 
 injunctions to prevent irreparable injury for which the 
 
 remedy at law is inadequate § 210 p. 302 
 
 injunction will not be issued when party has a .... § 223 p. 324 
 See also Injunctions. 
 
 REMITTITUR, 
 
 plaintiff filing § 395 p. 595 
 
 REMOVAL, 
 
 of State or municipal officer not enjoined § 12 p. 17 
 
 from office by quo warranto § 15 p. 22 
 
 of receivers § 259 pp. 3S5-387 
 
 REMOVAL TO FEDERAL COURT, 
 
 of case in which State court has taken possession of 
 
 property § 9 p. 11 
 
 after appointment of receiver § 9 p. 11 
 
 whether filing petition for, constitutes an appearance . . § 100 p. 161 
 
 plea in abatement for want of jurisdiction § 125 p. 190 
 
 who may discharge receiver after § 260 p. 387 
 
 dismissal of bill for collusive jurisdiction § 293 p. 436 
 
 costs in actions on removal § 327 p. 479 
 
 of habeas corpus proceeding § 366 p. 044 
 
 order of State court directing an examination of witnesses, 
 
 when avoided by § 372 p. 552 
 
 removal of causes from one Federal court to another § 382 pp. 566-567 
 
 facts authorizing, and procedure § 382 pp. 566-567 
 
 causes which may be removed from a State court to a Cir- 
 cuit Court of the United States § 383 pp. 567-570 
 
 separable controversies § 384 pp. 570-572
 
 INDEX. 797 
 
 REMOVAL TO FEDERAL COURT — continued. 
 
 practice on removal in general, on grounds other than 
 prejudice or local influence, or in controversies be- 
 tween citizens of the same State claiming land under 
 
 grants of different States § 385 pp. 572-575 
 
 for prejudice or local influence §386 pp. 575-580 
 
 on removal of suits containing controversies between 
 citizens of the same State claiming land under 
 
 grants of different States § 387 p. 5S0 
 
 on removal of suits against revenue officers and offi- 
 cers of either house of Congress § 388 pp. 580-582 
 
 on removal of cases arising under civil rights laws § 389 pp. 582-583 
 
 filing of record after a removal § 390 pp. 583-585 
 
 practice after removal of cause § 391 pp. 585-588 
 
 effect of removal § 392 pp. 5S8-589 
 
 remand § 393 pp. 589-590 
 
 RENEWING MOTION, 
 
 in Federal court after removal of cause § 391 p. 587 
 
 REPLEADER, 
 
 not necessary after removal of cause to Federal court if 
 
 suit is in its nature an action at common law .... § 391 p. 585 
 
 usually otherwise in equitable actions § 391 p. 585 
 
 REPLEVIN, 
 
 security required on applying for supersedeas in .... § 402 p. 606 
 REPLEVIN BOND, 
 
 inability to give, no ground for equitable relief .... § 12 p. 17 
 REPLICATIONS, 
 
 special, not allowed § 76 p. 127 
 
 should not be filed to a disclaimer alone .... § 155 pp. 228-229 
 
 definition and history of §156 pp. 230-231 
 
 when should be filed § 157 p. 231 
 
 effect of § 158 p. 232 
 
 frame of, and requisites § 159 pp. 232-233 
 
 form § 159 p. 233 
 
 signature to § 159 p. 233 
 
 amendments of § 166 p. 242 
 
 REPLY CLAUSE, 
 
 in bills. See Bills. 
 REPORT, 
 
 of master § 314 p. 461 
 
 REPRESENTATIVES, 
 
 when necessary to suits for specific performance . . . § 44 p. 81 
 general rules as to making parties where the law has fur- 
 nished § '15 pp. 85-88 
 
 exemption of, from service of process § 98 p. 159 
 
 when writ of ne exeat repuhlica cannot be issued agaii si 
 
 Federal . § 262 p. 890 
 
 See also Administrators; Executors; Personal Representatives. 
 RE-SALE, 
 
 when will be ordered § 316 p. 465
 
 798 INDEX. 
 
 RESIDENCE, 
 
 not conclusive of citizenship . § 19 p. 27 
 
 as a limitation upon jurisdiction § 22 pp. 29-31 
 
 limitations upon jurisdiction of Federal courts by . . § 22 pp. 29-31; 
 
 pp. 58-63 
 
 in what State corporation deemed to have a § 22 p. 30 
 
 averments as to, in bills § 66 p. 113 
 
 when defects of, can be raised by demurrer § 105 p. 170 
 
 failure to state in bill, a ground of demurrer § 108 p. 176 
 
 of petitioner to be stated in petition for intervention . . § 202 p. 292 
 of defendant, as affecting right to remove cause from State 
 
 to Federal court § 383 p. 570 
 
 RESULTING TRUSTS, 
 
 as subjects of equity jurisdiction § 2 p. 3 
 
 RETURN, 
 
 by marshal to writ of attachment for contempt .... § 346 p. 508 
 
 to writ of habeas corpus § 367 p. 546 
 
 motion to dismiss writ of error because no assignment of 
 
 errors is attached to return § 403 p. 610 
 
 RETURN DAY, 
 
 of writ of error § 399 p. 603; § 403 pp. 607-608 
 
 writs of error to be served before . § 399 p. 603 
 
 REVENUE APPEALS, 
 
 may be advanced on calendar of Supreme Court by motion 
 
 of attorney-general § 408 p. 620 
 
 REVENUE LAW, 
 
 writs of error in civil action brought by the United States 
 
 in Circuit or District Court for enforcement of . . . § 394 p. 593 
 REVENUE OFFICER, 
 
 recovery against, execution § 380 p. 564 
 
 removal of civil suits and criminal prosecutions against, 
 
 to Federal court § 383 p. 568 
 
 practice on removal of suits against § 388 pp. 580-582 
 
 writs of error in actions against § 394 p. 593 
 
 See also Writ of Error and Appeals. 
 
 REVERSAL, 
 
 power of Supreme Court to order § 409 p. 623 
 
 REVIEW, 
 
 bills of § 64 p. 110 
 
 bills of, and bills in nature of §§ 353-357 pp. 517-520 
 
 See also Writs of Error and Appeals. 
 
 REVIVING SUIT, 
 
 dismissal of bill for failure to perfect or revive suit ... § 294 p. 439 
 
 REVIVOR, 
 
 bills of , not original § 64 p. 110 
 
 dismissal of bill for failure to perfect or revive suit ... § 294 p. 439 
 
 common-law procedure respecting § 360 p. 530 
 
 of suits § 373 pp. 553-55-' 
 
 See also Bills of Revivor.
 
 INDEX. 799 
 
 RHODE ISLAND, 
 
 constitutes one judicial district § 2G p. 52 
 
 times and places of hold- 
 ing court therein enum- 
 erated § 26 p. 52 
 
 the district of, included within First Circuit § 2()4 p. 295 
 
 RIGHT, 
 
 of navigation § 12 p. 10 
 
 purely political, not protected by equity § 12 p. 16 
 
 in abstract never practically exercised, not protected by 
 
 equity § 12 p. 16 
 
 privilege or immunity secured by Constitution of the 
 
 United States § 15 p. 21 
 
 ROBIXS, 
 
 remark of, as to general relief § 83 p. 137 
 
 ROMAN LAW. 
 
 See Civil Law. 
 RULE DAY, 
 
 on which appearance is to be made § 102 p. 163 
 
 motions and orders which are to be made on § 197 p. 2S2 
 
 RULES OF DECISION, 
 
 in trials at common law § 375 pp. 556-559 
 
 of State court made prior to removal to Federal court will 
 
 usually be followed in the latter after removal ... § 391 p. 5S7 
 RULES OF PRACTICE, 
 
 promulgated by United States Supreme, Circuit and Dis- 
 trict Courts § 27 pp. 56-57 
 
 See Appendix, pp. 664-704. 
 RULINGS, 
 
 upon a hearing § 298 p. 442 
 
 S. 
 
 SAILING OF SHIP, 
 
 injunction to restrain § 210 p. 302 
 
 SALARY, 
 
 when part of matter in dispute § 395 p. 596 
 
 SALE, 
 
 bill to set aside, what to contain § 84 p. 139 
 
 injunctions to prevent sale and transfers of chattels . . § 212 p. 306 
 
 by masters § 316 pp. 463-465 
 
 SALE OF LAND, 
 
 injunctions to restrain § 210 p. 302 
 
 SANDFORD, CHANCELLOR, 
 
 report to, by Master Hoffman, on the history of the prac- 
 tice and effect of taking bills pro confesso § 104 p. 166 
 
 SAWYER, JUDGE, 
 
 opinion on rule 90, of the Supreme Court, of equity prac- 
 tice § 27 p. 57
 
 800 INDEX. 
 
 SCANDAL, 
 
 and impertinence in bills § 68 pp. 114-116 
 
 answers § 147 p. 216 
 
 replication not to contain any § 159 p. 232 
 
 party in contempt moving to expunge scandal from record § 197 p. 284 
 
 allowing costs against pauper for § 200 p. 290 
 
 petition for intervention to be free from .... . § 202 p. 292 
 application for injunction refused because bill had been 
 
 referred for § 228 p. 327 
 
 SCILICET, 
 
 in affidavit , § 272 p. 407 
 
 SCIRE FACIAS, 
 
 subpoena in the nature of a, the ancient practice of reviv- 
 ing suits § 178 p. 260 
 
 to be served on executor or administrator by survivor, 
 
 when the latter desires to continue suit § 373 p. 553 
 
 SEAL, 
 
 to bond, on removal for grounds other than prejudice or 
 local influence, or in controversies between citizens of 
 the same State, claiming land under grants of different 
 States § 385 p. 574 
 
 of court to writs of error § 399 p. 603 
 
 SECOND CIRCUIT, 
 
 districts included in § 204 p. 295 
 
 SECOND PETITION, 
 
 whether can be filed for removal of cause to Federal 
 
 court after case has been remanded § 391 p. 587 
 
 SECRETARY OF TREASURY, 
 
 recovery against collector or revenue officer acting under 
 
 orders of, execution § 380 p. 564 
 
 condemnation proceedings by § 381 p. 565 
 
 SECURITY, 
 
 marshalling of, as a subject of jurisdiction in equity . . § 2 p. 4 
 
 when required upon injunction by State statute ... § 6 p. 9 
 
 by receiver § 256 pp. 381-383 
 
 given in a cause prior to removal to Federal court, effect 
 
 of removal on same § 392 p. 588 
 
 an appeal is taken when it is allowed, although security 
 
 is not filed till after the statutory limit § 398 p. 602 
 
 this limitation does not apply to writs of error coram nobis § 398 p. 602 
 
 on writ of error or appeal § 400 pp. 604-605 
 
 requisite to obtain supersedeas § 402 p. 606 
 
 not required in writs of error in criminal prosecutions . § 403 p. 610 
 on writ of error from Supreme Court to State courts . . § 405 p. 615 
 motion to dismiss appeal or writ of error for frivolousness 
 
 denied when united with motion to dismiss for defect 
 
 in bond § 406 p. 616 
 
 See also Bail ; Recognizance ; Undertaking.
 
 INDEX. 801 
 
 SECURITY FOR COSTS, 
 
 plaintiff in error or appellant to give undertaking or other 
 
 security to clerk of United States Supreme Court . . § 331 p. 484 
 See also Costs. 
 SEIZURE, 
 
 burden of proof in suits where any seizure is made pur- 
 suant to an act providing for or regulating collection of 
 
 duties on imports or tonnage § 268 p. 405 
 
 SELDEN, LORD CHANCELLOR, 
 
 language of, respecting length of chancellor's foot as 
 
 being the measure of jurisdiction in equity .... § 1 p. 1 
 
 SENATE, 
 
 introducing in evidence extracts from journal of ... § 268 p. 400 
 SENATORS, 
 
 exemption of, from service of process § 98 p. 159 
 
 when writ of ne exeat republica cannot be issued against . § 262 p. 390 
 SENTENCE, 
 
 stay of, on review in Circuit Court, of conviction had in 
 
 District Court § 401 p. 611 
 
 Circuit Court pronouncing an affirmance of conviction 
 
 had in District Court § 404 p. 612 
 
 SEPARABLE CAUSES OF ACTION, 
 
 removal to Circuit Court in certain cases of § 383 p. 568 
 
 SEPARABLE CONTROVERSIES, 
 
 See Removal of Causes. 
 
 SEPARATE DEFENDANTS, 
 
 right to appeal or bring error § 397 p. 599 
 
 SEPARATE ESTATE, 
 
 of married women. See Married Women. 
 SEQUESTRATION, 
 
 definition of § 347 p. 509 
 
 writ of, when will be issued § 149 p. 221 
 
 of goods, effect upon, of removal of cause to Federal court § 392 p. 588 
 See also Enforcement of Decrees and Orders. 
 SEQUESTRATORS, 
 
 appointment of § 347 p. 510 
 
 may be put in possession by means of writ of assis- 
 tance § 348 pp. 510-511 
 
 SERVANT, 
 
 how far decisions of State courts upon law of master and 
 
 servant are binding upon Federal tribunals .... § 375 p. 557 
 See also Negligence. 
 SERVICE, 
 
 of subpoena ad respondendum, rules relative to . §§94-98 pp. 151-160 
 
 affidavit of, formalities in § 271 p. 407 
 
 of subpoena ad testificandum § 276 p. 412 
 
 fact of service of process upon defendant should appear 
 
 affirmatively upon face of decree § 325 p. 474 
 
 51
 
 802 INDEX. 
 
 SERVICE — continued. 
 
 of writ of attachment for contempt § 346 pp. 507-509 
 
 of pleading, how far State practice respecting, is followed § 300 p. 530 
 of writ and process, how far State practice followed res- 
 pecting § 360 p. 530 
 
 of writ of error § 399 p. 603 
 
 failure to serve citation on defendants in error .... § 399 p. 604 
 of subpoena. See also Process; Subpoenas to Appear and Answer. 
 
 SET-OFF, 
 
 as a subject of jurisdiction in equity § 2 p. 4 
 
 SETTLING, 
 
 bills of exceptions § 377 p. 560 
 
 SEVENTH CIRCUIT, 
 
 districts included in § 204 p. 295 
 
 SHAREHOLDERS, 
 
 efforts of plaintiff to secure action by, on part of stock- 
 holder to be set forth § 76 p. 128 
 
 obtaining injunction in suit affecting corporation ... § 207 p. 299 
 See also Stockholder. 
 
 SHERIFF, 
 
 taking goods before removal of cause to Federal court, 
 
 effect of removal upon § 392 p. 588 
 
 SHIP, 
 
 injunction to restrain sailing of a § 210 p. 302 
 
 SICKNESS, 
 
 of judge, who to act in case of . . , § 204 p. 290 
 
 SIGNATURE, 
 
 of counsel to bill § 86 p. 141 
 
 to bill, want of, ground of demurrer § 108 p. 176 
 
 to answer § 151 pp. 223-224 
 
 to replication § 159 p. 233 
 
 of counsel to amendments § 162 p. 236 
 
 of counsel to cross-bill § 172 p. 252 
 
 of counsel to bill of revivor § 180 p. 263 
 
 to notice of motion § 197 p. 283 
 
 of counsel, when necessary to petition for intervention . § 202 p. 292 
 
 to affidavit § 273 p. 408 
 
 to bills of exceptions §377 p. 560 
 
 of clerk to authentication of record on appeal .... § 403 p. 607 
 
 SIMILAPtLY SITUATED, 
 
 necessary parties in suits by complainant on behalf of him- 
 self and others § 46 pp. 88-89 
 
 suits on behalf of persons. See Parties. 
 SIX MONTHS' RULE, 
 
 preferences in railroad foreclosure suits regulated by . . § 243 p. 350 
 SIXTH CIRCUIT, 
 
 districts included in § 204 p. 295 
 
 SLANDERS, 
 
 rarely if ever enjoined § 12 p. 17
 
 INDEX. 803 
 
 SLAVE TRADE, 
 
 jurisdiction of suits under laws relating to § 15 p. 22 
 
 SMITH'S CHANCERY PRACTICE, 
 
 referred to in history of the practice of taking bills pro 
 
 confcsso § 104 p. 167 
 
 SOLICITOR, 
 
 signature of, to bill § 86 p. 141 
 
 to sign notice of motion § 107 p. 283 
 
 signature of, to petition for intervention § 202 p. 292 
 
 not usually appointed receiver § 255 p. 380 
 
 costs as between solicitor and client § 336 pp. 497-498 
 
 SOLICITOR OF THE TREASURY, 
 
 introduction of papers, &c. in the office of, in evidence . § 268 p. 398 
 SOMERS, LORD CHANCELLOR, 
 
 labors of, in widening jurisdiction of courts of equity . . § 1 p. 2 
 
 SOUTH CAROLINA, 
 
 divided into two districts § 26 p. 52 
 
 counties, times, and places of 
 holding court therein enumer- 
 ated § 26 p. 52 
 
 districts of, included within Fourth Circuit § 204 p. 295 
 
 SOUTH DAKOTA, 
 
 constitutes one district § 26 p. 52 
 
 districts of, included within Eighth Circuit § 204 p. 295 
 
 SOUTHERN DISTRICT OF NEW YORK, 
 
 limitation of jurisdiction § 23 p. 32 
 
 special limitation upon jurisdiction of Circuit Court for . § 23 p. 32 
 SOVEREIGNS, 
 
 when cannot be sued § 35 p. 68 
 
 SPECIAL APPEARANCE, 
 
 defined § 99 p. 161 
 
 SPECIAL CIRCUMSTANCE, 
 
 bill to impeach decree on account of § 64 p. 110 
 
 SPECIAL DAMAGE, 
 
 necessity of alleging, to obtain injunction § 207 p. 300 
 
 SPECIAL GUARDIAN, 
 
 citizenship of, does not affect jurisdiction § 19 p. 26 
 
 SPECIAL INJUNCTIONS, 
 
 distinguished from other forms § 205 p. 297 
 
 See also Injunctions. 
 SPECIAL ORDER, 
 
 prayer for relief in cases of § 83 p. 136 
 
 if asked for pending the suit, in prayer for relief, need not 
 
 be repeated in prayer for process § S5 p. 140 
 
 SPECIAL RELIEF, 
 
 prayer for § 83 p. 130 
 
 SPECIAL REPLICATIONS, 
 
 not allowed § 76 p. 127 
 
 long obsolete § 156 p. 230
 
 804 INDEX. 
 
 SPECIFIC CHATTEL, 
 
 injunction to restrain alienation of § 210 p. 302 
 
 SPECIFIC PERFORMANCE OF CONTRACT, 
 
 as a ground of equitable jurisdiction § 2 p. 4 
 
 of contract of insurance § 11 p. 13 
 
 for sale of corporate stock § 11 p. 13 
 
 of guaranty § 11 p. 14 
 
 not enforced when defendant has power of revocation . . § 12 p. 19 
 
 to sell corporate stock, when not enforced § 12 p. 19 
 
 to build bridge, when not enforced § 12 p. 20 
 
 as against State § 37 pp. 71-77 
 
 ■who necessary parties to suits for § 44 p. 84 
 
 alternative relief in action for § 70 p. 119 
 
 bill for, what to contain § 84 p. 139 
 
 cross-bills need not be filed in certain actions for ... § 171 p 247 
 injunctions to enforce, of covenants and other contracts 
 
 relating to land § 208 pp. 300-301 
 
 injunctions to compel the performance or prevent the breach 
 
 of contracts not affecting land § 220 pp. 318-319 
 
 Lord St. Leonards' Act permitting master to execute deed 
 
 or other written instrument in the name of party who 
 
 refuses to do so § 349 pp. 511-512 
 
 SPEEDY HEARING, 
 
 writs of error in criminal cases advanced to § 403 p. 610 
 
 SPONSIO JUDICIALIS, 
 
 the possible origin of feigned issues § 304 p. 449 
 
 STARE DECISIS, 
 
 rule of, how far applied in equity § 1 p. 1 
 
 STATES, 
 
 jurisdiction of controversies between § 3 p. 5 
 
 " " " citizens of different § 3 p. 5 
 
 bill by § 12 p. 16 
 
 where sued § 14 p. 20 
 
 practice when sued in Supreme Court § 14 p. 20 
 
 controversies affecting, jurisdiction of United States Su- 
 preme Court over § 14 pp. 20-21 
 
 jurisdiction of Federal courts in controversies between 
 
 citizens of different • . § 18 p. 26 
 
 jurisdiction of Federal courts in cases of conflicting grants 
 
 by different § 20 pp. 27-28 
 
 laws of, declaring person civilly dead, as preventing filing 
 
 bill in equity § 28 p. 64 
 
 as plaintiffs to bills in equity § 29 p. 61 
 
 when cannot be sued § 35 p. 68 
 
 as defendants, liability of, to suits by private persons § 37 pp. 71-77 
 
 specific performance as against a § 38 p. 77 
 
 as defendant, liability to suit by another State ... § 38 pp. 77-78 
 
 whether a tribe of Indians constitutes a foreign .... § 38 p. 78 
 statute of, authorizing one or more members of voluntary 
 
 association to represent the others in the courts ... § 45 p. 88
 
 index. 805 
 
 STATES — continued. 
 
 necessary parties to suit against, to restrain illegal tax . § 52 p. 98 
 
 when necessary party to a decree § 53 p. 99 
 
 liberal amendments in favor of § 1G0 p. 234 
 
 public acts of, how introduced in evidence § 208 p. 404 
 
 how far the practice of the State courts is followed in Fed- 
 eral courts § 360 p. 529 
 
 court of, has not power to grant a writ of habeas corpus to 
 
 a person held under color from the United States . . § 366 p. 544 
 laws of, when to be regarded as rules of decision ... § 375 p. 556 
 See also Practice at Common-Law. 
 STATE COURTS, 
 
 jurisdiction over cases affecting ambassadors, ministers, 
 
 and consuls § 3 p, 5 
 
 property in custody of, jurisdiction of Federal court over § 9 pp. 11-12 
 
 concurrent jurisdiction § 15 p °1 
 
 how far can interfere by injunction with matters in Fed- 
 eral courts § 211 p. 303 
 
 when decisions of, binding upon Federal tribunals . § 375 pp. 556-559 
 rules of decision made by, prior to removal to Federal tri- 
 bunals will usually be followed in the latter after 
 
 removal § 391 p. 587 
 
 review by writ of error of judgments of § 394 p. 594 
 
 writs of error from Supreme Court to State courts . § 405 pp. 612-616 
 See also Removal of Cause. 
 STATE OF FACTS, 
 
 using, on references before master § 312 pp. 459-460 
 
 See also Facts; Findings. 
 STATE OFFICER, 
 
 removal not enjoined S 12 p. 17 
 
 STATE PRACTICE. 
 
 See Practice at Common-Law. 
 
 STATE STATUTE, 
 
 diminishing or destroying an equitable remedy § 6 p. 8 
 
 enlarging powers of courts of common law § 6 p. 8 
 
 giving courts of probate exclusive jurisdiction § 6 p. 8 
 
 regulating practice in courts of equity § 6 p. 8 
 
 requiring tender by mortgagor before filing bill for redemp- 
 
 tion § 6 p. 8 
 
 regulating foreclosure of mortgages § 6 pp. 8-9 
 
 regulating redemption of mortgages § 6 pp. 8-9 
 
 requiring bond upon injunction § 6 p. 9 
 
 requiring leave from a State court before suing upon an 
 
 injunction § 6 p. 9 
 
 requiring presentation of claim to comptroller before suing § 6 p. 9 
 
 influence on Federal courts of equity §§ 6-8 pp. 8-10 
 
 authorizing submission on stipulation § 6 p. 9 
 
 authorizing suit to quiet title by person out of possession 
 
 of land § 7 p. 9
 
 806 INDEX. 
 
 STATE STATUTE — continued. 
 
 authorizing suit to set aside will for fraud § 7 p. 9 
 
 authorizing suit to set aside probate of will for fraud ... § 7 p. 9 
 imposing individual liability on stockholders of corpora- 
 tions § 7 p. 9 
 
 creating a new right, enforced by Federal courts, in law or 
 
 equity § 7 pp. 9-10 
 
 authorizing appointment of receiver § 7 p. 10 
 
 authorizing creditor's bill § 7 p. 10 
 
 empowering guardian to mortgage ward's estate § 7 p. 10 
 
 of limitation §8 p. 10 
 
 do not bar the United States § 8 p. 10 
 
 followed by Federal courts of equity in fore- 
 closure suits § 8 p. 10 
 
 followed in equity in suits against executors 
 
 and administrators § 8 p. 10 
 
 when followed in actions at common law . . . § 8 p. 10 
 when followed in actions at common law upon 
 
 patents and copyrights § 8 p. 10 
 
 respecting admissibility of evidence, how far followed in 
 
 Federal courts § 274 p. 410 
 
 See also Practice at Common Law; Statutes. 
 
 STATE TAXES, 
 
 bill to restrain collection of, what to contain § 84 p. 139 
 
 STATING PART, 
 
 of bill § 67 pp. 113-114 
 
 STATUTE, 
 
 States cannot by, impair the jurisdiction of Federal courts 
 
 of equity § 6 pp. 8-9 
 
 nor regulate the practice therein § 6 pp. 8-9 
 
 State creating new rights enforceable in Federal courts . § 7 pp. 9-10 
 authorizing injunctions in a new class of cases .... § 8 p. 10 
 of limitation of the States, as affecting jurisdiction of Fed- 
 eral courts § 8 p. 10 
 
 setting forth, in bills § 6S p. 115 
 
 conformity with, allegations as to, in bills § 7S p. 133 
 
 pleas of § 131 pp. 196-197 
 
 necessity of private party alleging special damage on ap- 
 plying for injunction founded on violation of statute . § 207 p. 300 
 
 injunctions authorized by § 222 pp. 319-321 
 
 of the United States, introducing in evidence .... § 268 p. 405 
 
 of State, rulings upon, at hearing § 298 p. 443 
 
 of the States, when to be taken as rules of decision . . § 375 p. 556 
 construction of State statute by State court, how far bind- 
 ing upon Federal tribunals § 375 p. 558 
 
 whether a State statute has been passed by the legislature 
 is a question as to which the Federal courts will follow 
 
 the decisions of such State § 375 p. 558 
 
 of the United States, review by writ of error of decision 
 
 affecting § 394 p. 594
 
 INDEX. 807 
 
 STATUTE — continued. 
 
 of United States, writs of error to State courts in cases 
 
 affecting § 405 p. 612 
 
 how introduced in evidence. See also Evidence; Practice at Com- 
 mon Law; State Statute; and for recent important statutes see 
 Appendix, pp. G53-G64. 
 
 STATUTE LAW, 
 
 of States, how far followed in Federal tribunals ... § 375 p. 557 
 
 STATUTE OF FRAUDS, 
 
 can be raised by demurrer § 108 p. 176 
 
 Federal courts follow § 108 p. 17G; § 375 p. 558 
 
 STATUTES OF LIMITATIONS, 
 
 Federal courts follow, in actions at common law ... § 375 p. 558 
 
 not binding upon the United States § 375 p. 558 
 
 See also Limitations. 
 
 STATUTORY SERVICE, 
 
 of subpoena. See Subpoznas to Appear and Answer. 
 
 STAY, 
 
 bill to obtain stay of proceedings at law § 64 p. Ill 
 
 injunctions to stay proceedings in other courts .... § 210 p. 302 
 
 § 2 11 pp. 3(10-305 
 bill to suspend or avoid the operation of decrees . . § 359 pp. 527-528 
 
 of execution § 380 p. 5G4 
 
 proceedings on appeal or writ of error from Circuit Court, 
 
 where one of parties is dead § 397 p. 600 
 
 interest awarded where appeal was taken for delay . . § 409 p. 624 
 
 on appeal §402 pp. 606-607 
 
 upon appeal in habeas corpus proceedings ......§ 402 p. 607 
 
 writ of error to judgment of conviction operates as stay of 
 
 proceedings without filing security § 402 p. 607 
 
 on review in Circuit Court of conviction had in District 
 
 Court § 404 p. 611 
 
 STIPULATION, 
 
 effect of State statute authorizing § 6 p. 9 
 
 not to remove a specified suit into a Federal court ... § 383 p. 570 
 in cause made before removal to Federal court, effect of 
 
 removal on same § 392 p. 588 
 
 to pass a cause without placing it at the foot of the docket 
 
 invalid § 403 p. 620 
 
 ST. LEONARDS, LORD, 
 
 statute passed at instance of, permitting master to execute 
 deed or other written instrument in the name of a party 
 who refuses to do so §349 pp. 511-512 
 
 STOCK, 
 
 specific performance of contract for sale of § 11 p. 13 
 
 when contract for sale of, not specifically enforced . . . § 12 p. 19 
 
 injunction to restrain transfer of § 210 p. 302
 
 808 INDEX. 
 
 STOCKHOLDERS, 
 
 State statutes imposing liability to creditors upon ... § 7 p. 9 
 
 individual liability § 7 p. 9 
 
 bill by § 11 p. 13 
 
 when might be made a party to suit against corporation 
 
 under English practice § 43 p. 82 
 
 ■when necessary parties to suits affecting corporation . . § 45 p. 88 
 
 parties to suits by, on behalf of others similarly situated. § 47 p. 89 
 
 suing as representatives of a class § 48 p. 90 
 
 necessary parties in suits to set aside foreclosure of rail- 
 road mortgages § 53 p. 100 
 
 necessary averments in suits by § 76 p. 127 
 
 suit by, when to be verified § 87 p. 142 
 
 allowing them to intervene in suits affecting corporations § 201 p. 291 
 
 obtaining injunction in suit affecting corporation ... § 207 p. 299 
 
 appointing receivers of corporation property, in suits by . § 240 p. 344 
 
 not usually appointed receiver § 255 p. 379 
 
 when can have suit discontinued as against majority of 
 
 directors § 291 p. 434 
 
 See also Parties. 
 
 STORY, JUDGE, 
 
 labors of, in widening jurisdiction of courts of equity . . § 1 p. 2 
 classification by, of suits by a complainant on behalf of 
 
 himself and others similarly situated § 46 p. 88 
 
 view of, as to multifariousness in bills § 73 p. 123 
 
 quotation from, on the principle of amendments to an- 
 swers §167 p. 242 
 
 suggestions as to bill of revivor § 177 p. 259 
 
 practice as to supplemental bills in cases of personal rep- 
 resentatives § 187 p. 271 
 
 STRANGERS, 
 
 whether to be made parties § 43 p. 82 
 
 enjoining, from committing trespass § 215 p. 309 
 
 STREETS, 
 
 State statutes imposing assessments upon § 7 pp. 9-10 
 
 SUBJECT-MATTER, 
 
 failure of plaintiff to have interest in, a ground of de- 
 murrer § 108 p. 174 
 
 value of, beneath dignity of court, a ground of demurrer § 108 p. 175 
 
 SUBMISSION, 
 
 of cases on printed arguments § 408 p. 619 
 
 SUBP(ENA, 
 
 prayer of, in bills § 85 pp. 140-141 
 
 motion to set aside, the proper remedy where process is 
 prayed against defendant in a representative capacity, 
 and the subpoena is issued against him generally ... § 85 p. 141 
 
 defects in, waived by general appearance § 101 p. 162 
 
 failure to serve, upon parties against whom process prayed 
 
 not ground of demurrer § 108 p. 177
 
 INDEX. 809 
 
 SUBPCEN A — continued 
 
 in the nature of a scire facias the ancient practice of reviv- 
 ing suits § 178 p. 260 
 
 ad testificandum § 275 p. 411 
 
 for witnesses to attend before master § 313 pp. 160-461 
 
 See also Practice at Common Law. 
 SUBPCENAS TO APPEAR AND ANSWER, 
 
 defined § 91 p. 148 
 
 requisites of § 01 p. 148 
 
 form of § 92 p. 150 
 
 issue of § 92 p. 150 
 
 bill first to be filed § 92 p. 150 
 
 loties quoties § 92 p. 150 
 
 when necessary § 93 pp. 150-151 
 
 service, how to be made, generally § 94 pp. 151-152 
 
 upon corporations § 95 pp. 153-155 
 
 substituted § 96 pp. 155-157 
 
 statutory § 97 pp. 157-159 
 
 exemptions from § 98 pp. 159-160 
 
 SUBSEQUENT LIENORS, 
 
 whether necessary parties to foreclosure suit .... § 52 p. 96 
 
 SUBSEQUENT MATTER, 
 
 bill to impeach decree for § 64 p. 110 
 
 SUBSTITUTED SERVICE, 
 
 of subpoenas .... § 96 pp. 155-157 
 
 of notice of motion § 197 p. 283 
 
 SUCCESSFUL PARTY, 
 
 sometimes obliged to pay costs in equity § 327 p. 478 
 
 when may be obliged to pay costs § 327 p. 480 
 
 SUGDEN, SIR EDWARD, 
 
 statute passed at instance of, permitting master to execute 
 deed or other instrument in the name of a party who 
 
 refuses to do so § 349 pp. 511-512 
 
 See St. Leonards, Lord. 
 SUITS, 
 
 multiplicity of, as a ground of equitable jurisdiction . . § 2 p. 4 
 
 arising under Constitution or laws of the United States . § 17 p. 25 
 
 injunctions to restrain multiplicity of § 209 pp. 301-302 
 
 by receivers §249 pp. 369:572 
 
 defined, for the purpose of writ of error from Supreme 
 
 Court to State court § 405 p. 614 
 
 SUMMONS, 
 
 endorsement of, how far State practice respecting, followed § 360 p. 530 
 SUNDAY, 
 
 service of subpoena on § 94 p. 152 
 
 injunction refused to prevent the running of cars on . . § 223 p. 321 
 writ of attachment for contempt not to be served on § 346 pp. 507-509 
 SUPERSEDEAS, 
 
 when judgment can be executed despite § 397 p. 598 
 
 practice to obtain § 402 pp. 806-607
 
 810 INDEX. 
 
 SUPPLEMENTAL ANSWER, 
 
 objects of, and when allowed to be filed § 154 p. 228 
 
 See also Amendments. 
 SUPPLEMENTAL BILL, 
 
 jurisdiction of § 21 p. 28 
 
 not original § 64 p. 110 
 
 See also Correction of Decree otherwise than by Appeal. 
 See Bills of Revivor. 
 SUPPLEMENTARY PROCEEDINGS, 
 
 jurisdiction of §21 pp. 28-29 
 
 to executions § 380 pp. 562-565 
 
 SUPREME COURT OF THE UNITED STATES, 
 
 jurisdiction when not exclusive § 11 p. 21 
 
 appellate jurisdiction authorized by Constitution ... § 3 p. 5 
 
 original jurisdiction § 3 p. 5 
 
 jurisdiction affecting ambassadors, ministers, and consuls § 3 p. 5 
 
 original jurisdiction § 14 pp. 20-21 
 
 exclusive jurisdiction § 14 pp. 20-21 
 
 provisions as to holding terms of court in cases of conta- 
 gious or epidemic disease § 26 p. 35 
 
 territorial jurisdiction and terms of § 26 p. 35 
 
 rules of practice promulgated by § 27 pp. 50-57 
 
 ninetieth rule, adopting practice of High Court of Chan- 
 cery in England § 27 p. 57 
 
 motions in § 194 p. 279 
 
 practice of, as to the granting of orders § 204 p. 295 
 
 costs in, when judgment or decree is reversed for want of 
 
 jurisdiction in court below § 327 p. 480 
 
 costs in. See Costs. 
 
 appeals to, in habeas corpus proceedings § 368 p. 548 
 
 objection that bond given on removal of cause was defec- 
 tive for want of acknowledgment not to be taken for 
 
 first time in § 385 p. 574 
 
 amendments in § 391 p. 587 
 
 when appeal to, may be taken to without reference to 
 
 amount involved § 393 p. 590 
 
 costs where judgment or decree is reversed in, for want of 
 
 jurisdiction § 393 pp. 5S9-590 
 
 See also Writs of Error and Appeals. 
 SUPREME COURT, DISTRICT OF COLUMBIA, 
 
 appeals from § 394 p. 592 
 
 SURETIES, 
 
 of administrator, suit against § 11 P- 1- 
 
 necessity of joining principal with, in suit against ... § 42 p. 82 
 
 of administrator, necessary parties in suits against ... § 52 p. 96 
 
 of receiver, discharge of § 256 p. 38- 
 
 SURPRISE, 
 
 if plaintiff has evidence likely to take defendant by, it 
 
 should be indicated in the bill § 69 p. 117 
 
 bill to impeach decree for § 358 pp. 526-527
 
 INDEX. 811 
 
 SURVIVAL OF ACTIONS. See Abatement and Revivor 
 SURVIVORS, 
 
 right of, to proceed with appeal § 397 p. 599 
 
 SUSPENDING DECREES, 
 
 bills for § 359 pp. 527-528 
 
 SWEARING, 
 
 to affidavits, formalities regulating § 270 p. 406 
 
 TAKING BILLS PRO CONFESSO, 
 
 when may be done § 103 p. 164 
 
 as against persons under disability . . § 103 p. 164 
 not before guardian ad litem appointed § 103 p. 164 
 case where guardian refuses to answer § 103 p. 164 
 
 practice in § 104 pp. 1G5-169 
 
 appeals from decrees § 101 p. 169 
 
 motion to set aside decrees obtained by § 104 p. 169 
 
 TAKING TESTIMONY. 
 
 See also Depositions; Evidence. 
 TALBOT, 
 
 decision of, respecting parties to suits against corpora- 
 tions § 43 p. 83 
 
 TANEY, CHIEF JUSTICE, 
 
 labors of, in widening jurisdiction of courts of equity . . § 1 p. 2 
 
 upon the jurisdiction of the Federal courts § 5 p. 6 
 
 as to how far English Courts of Chancery are models in 
 
 this respect § 5 p. 6 
 
 view of, as to when appeal lies from order § 203 p. 204 
 
 TAXATION, 
 
 of costs § 337 p. 498 
 
 TAXES, 
 
 bill to restrain collection of, what to contain § 84 p. 139 
 
 bill to collect, not sustained § 12 p. 16 
 
 bill to levy, not sustained § 12 p. 16 
 
 receiver not appointed to levy or collect . . § 12 p. 16; § 244 p. 357 
 no injunction against collection of internal revenue . . . § 12 p. 16 
 TAXPAYER'S BILL, 
 
 as a subject of jurisdiction in equity . . . . §11 p. 11; § 12 p. 16 
 
 TAX SALE, 
 
 bill to set aside, what to contain § 84 p. 139 
 
 TECHNICAL EXPRESSIONS, 
 
 wm' of, in bills unnecessary § 78 p. 131 
 
 TENANT, 
 
 whether a necessary party in suits affecting estate ... § 45 p. 80 
 
 suits by one or more on behalf of others § 49 p. 91 
 
 in common, necessai'y parties to partition suit .... § 53 p. 100 
 
 TEND Ell, 
 
 omission of, when ground for demurrer § 34 p. 140
 
 812 INDEX. 
 
 TENNESSEE, 
 
 divided into three districts § 26 p. 52 
 
 counties, times, and places of 
 holding court therein enu- 
 merated § 26 pp. 52-53 
 
 districts of, included within Sixth Circuit § 204 p. 295 
 
 who can be made receiver in § 255 p. 381 
 
 TERMS, 
 
 of holding, United States Supreme, Circuit, and District 
 
 Courts § 26 pp. 35-58 
 
 imposed, on overruling demurrer § 122 pp. 185-186 
 
 imposed upon the issue, denial, dissolution, or continuance 
 
 of an injunction § 237 pp. 338-340 
 
 upon the appointment of receivers and preferences in fore- 
 closure suits § 243 pp. 347-355 
 
 decrees can regularly be entered only during ... § 324 pp. 473-474 
 
 correcting judgment during § 379 pp. 561-562 
 
 imposing on amendment of writ of error § 399 p. 603 
 
 TERRITORIAL CORPORATIONS, 
 
 suits by, or against § 17 p. 25 
 
 TERRITORIAL COURTS, 
 
 excluded from category of Federal courts having equity 
 
 jurisdiction § 13 p. 20 
 
 reviewing disputed questions of fact on appeals from 
 
 judgment and decrees of, in non-jury causes .... § 394 p. 591 
 writs of error from Supreme Court of United States to 
 
 judgments of § 394 pp. 591-592 
 
 appeals from Supreme Court of any Territory .... § 394 p. 593 
 See also Writs of Error and Appeals. 
 
 TERRITORIAL JURISDICTION, 
 
 of Supreme, Circuit, and District Courts .... § 26 pp. 35-58 
 
 TERRITORY, 
 
 public acts of, how introduced in evidence § 268 p. 404 
 
 TESTE, 
 
 of writs of error § 399 p. 602 
 
 TESTIMONY, 
 
 perpetuation of, as a subject of jurisdiction in equity . . § 2 p. 4 
 
 bills for perpetuating § 64 p. 110 
 
 de bene esse, issuing subpoena in case of taking .... §275 p. 411 
 taken in equity which may be used in other courts ... § 278 p. 413 
 
 bills to perpetuate § 279 pp. 413-416 
 
 de bene esse, bill to take § 280 p. 416 
 
 taken before cause is at issue § 282 pp. 418-419 
 
 " after " « § 283 pp. 419-420 
 
 prpsent method of taking, within the jurisdiction . § 284 pp. 420-423 
 takpn after a cause is at issue and beyond the jurisdiction 
 
 of the court § 285 p. 423 
 
 common-law procedure respecting § 360 pp. 529-530 
 
 See also Depositions; Evidence; Practice at Common Law.
 
 INDEX. 813 
 
 TEXAS, 
 
 divided into three districts § 26 p. 53 
 
 counties, times, places of hold- 
 ing court therein enumer- 
 ated § 20 pp. 53-55 
 
 districts of, included within Fifth Circuit § 204 p. 295 
 
 whether receiver-general of, can be appointed receiver . § 255 p. 380 
 introducing in evidence transcripts from certain books 
 of the District Courts in § 268 p. 401 
 
 THIRD CIRCUIT, 
 
 districts included in § 204 p. 295 
 
 THOMAS JEFFERSON, 
 
 subpoena duces tecum against, on trial of Aaron Burr . . § 98 p. 159 
 
 THREATS, 
 
 as constituting a ground of jurisdiction in equity ... § 2 p. 4 
 
 THURLOW, LORD, 
 
 first injunction to restrain trespass, granted by .... § 215 p. 309 
 
 TIME, 
 
 allegations as to, in bills § 67 p. 114 
 
 for appearance §102 pp. 162-163 
 
 enlargement of, for cause shown § 103 p. 164 
 
 to file demurrer, plea or answer to bill § 111 PP- 178-179 
 
 within which to file plea § 135 pp. 200-201 
 
 answer § 149 p. 221 
 
 replication § 157 p. 231 
 
 cross-bills § 170 p. 246 
 
 bills of revivor § 181 p. 263 
 
 to be given by notice of motion § 197 p. 283 
 
 of application for interlocutory injunctions ... § 228 pp. 326-327 
 
 to serve writ of injunction § 234 pp. 334 335 
 
 when a receiver may be appointed § 252 p. 377 
 
 when issue of law will be directed § 303 p. 449 
 
 within which reference to be brought on before master . § 309 p. 455 
 decrees giving defendants a certain specified time within 
 
 which to show cause against a decree, &c. § 322 p. 470; § 323 p. 473 
 
 of entering decrees § 324 p. 473 
 
 decrees for an account should specify the time from which 
 
 the account is to be taken § 325 p. 476 
 
 to move for an order requiring non-resident to p;ive 
 
 security for costs § 338 p. 499 
 
 to make writ of attachment for contempt, returnable . . § 345 p. 507 
 of pleading, how far State practice respecting, is followed 
 
 § 360 pp. 529-530 
 
 when motion for new trial must be made § 376 p. 559 
 
 when judgments may be corrected by the courts that ren- 
 dered them . § 379 pp. 561-562 
 
 when execution can be issued in a case where writ of error 
 
 lies to the Supreme Court § 380 p. 562 
 
 for removal of cause where there are several defendants, 
 
 and time for removal has expired as to one .... § 385 p. 575
 
 814 INDEX. 
 
 TIME — continued. 
 
 effect of consent or order extending time to answer, on 
 
 time to remove cause § 385 p. 575 
 
 when right to replead, after removal to Federal court, ex- 
 pires § 391 p. 5S5 
 
 when remand of cause improperly removed to Federal 
 
 court may be demanded § 393 p. 590 
 
 effect of death of party before time allowed for taking ap- 
 peal or bringing writ of error has expired § 397 p. 599 
 
 within which appeal or writ of error must be taken § 398 pp. 601-602 
 
 to serve writs of error and citations § 399 p. 603 
 
 within which to take appeals § 401 p. 605 
 
 when appeal may be taken § 401 p. 605 
 
 to file security for costs on application for supersedeas . . § 402 p. 606 
 
 to return writ of error § 403 pp. 607-608 
 
 within which plaintiff in error or appellant is to docket 
 
 the cause in United States Supreme Court § 403 p. 608 
 
 within which models, diagrams, and exhibits of material 
 
 must be transmitted to Supreme Court of United States § 403 p. 608 
 
 within which they must be removed § 403 p. 608 
 
 failure of plaintiff in error to docket case and file record 
 
 in time § 403 p. 609 
 
 when writs of error must be made returnable .... § 403 p. 609 
 to review judgment, order, and decrees of District Court 
 
 by Circuit Court § 404 p. 611 
 
 before hearing, on writ of error from Supreme Court to 
 
 State court § 405 p. 615 
 
 when motions to dismiss appeals and writs of error may 
 
 be made . • • §406 p. 616 
 
 to serve papers, on motion to dismiss appeal or writ of error § 406 p. 617 
 within which appeals may be submitted on printed argu- 
 ments §408 p. 619 
 
 allowed counsel on argument in Supreme Court .... § 408 p. 622 
 
 to move for rehearing or reargument § 408 pp. 622-623 
 
 to amend. See Amendments. 
 
 TITLES, 
 
 persons claiming property under inconsistent, when npces- 
 
 sary parties to suits § 44 p. 84 
 
 of demurrer § 112 p. 179 
 
 of affidavit § 271 p. 407 
 
 of decree § 325 p. 47 4 
 
 evidence of, on removal of suits containing controversies 
 between citizens of the same States, claiming land under 
 
 .grants of different States § 387 p. 580 
 
 suit in which plaintiffs claim under, what to be regarded 
 
 as value of matter in dispute § 395 p. 596 
 
 TOLLS, 
 
 foreclosure of lien upon § 11 p. 13 
 
 TONNAGE, 
 
 jurisdiction of suits to collect § 15 p. 22
 
 INDEX. 815 
 
 TONNAGE — continued. 
 
 burden of proof in suits -where any seizure is made pursu- 
 ant to an act providing for or regulating collection of 
 duties on imports or tonnage § 2GS pp. 405-406 
 
 TORTS, 
 
 no suits against United States in cases of § 15 p. 22 
 
 TOTIES QUOTIES, 
 
 subpoena to appear and answer § 92 p. 150 
 
 TOWN BONDS, 
 
 bill by holder of § 11 p. 13 
 
 taxpayer's bill to prevent payment of § 53 p. 100 
 
 See Municipal Bond. 
 
 TRADE, 
 
 injunction to prevent revelation of secrets of § 20G p. 297 
 
 no injunction against corporation for merely diminishing 
 
 private individual's profits of § 207 p. 300 
 
 See also Monopoly. 
 
 TRADEMARK, 
 
 value of matter in dispute in suit to enjoin use of . . . § 1G p. 24 
 injunctions to restrain unlawful use of §210 p. 302; § 218 pp. 317-318 
 
 TRANSFER OF NOTES, 
 
 injunction to prevent § 212 p. 305 
 
 TRANSFER OF STOCK, 
 
 injunctions to restrain § 210 p. 302 
 
 TRANSLATION, 
 
 of foreign documents, to accompany record on appeal . . § 403 p. G08 
 
 TREASURY, 
 
 introduction in evidence of papers in the office of the so- 
 licitors of the § 2G8 p. 398 
 
 introducing in evidence transcripts from department of the § 2G8 p. 399 
 
 TREATIES, 
 
 introducing in evidence § 2G8 p. 405 
 
 review by writ of error of decision in State court affecting §394 | 
 
 ■writs of error in State courts affecting § 405 p. G12 
 
 TRESPASS, 
 
 injunctions to prevent §210 p. 302 
 
 injunctions to restrain §215 p. 309 
 
 TRIALS, 
 
 common-law procedure respecting § 360 pp. 529-530 
 
 notice of, how far State practice respecting, is followed 
 
 §360 pp. 529-530 
 principles regulating the granting of new trials .... § 376 p. 559 
 See also Hearing; Practice at Common Law. 
 
 TRUSTS, 
 
 as subjects of equity jurisdiction § 2 p. :i 
 
 constructive § 2 p. 3 
 
 express § 2 p. 3
 
 816 INDEX. 
 
 TRUSTS — continued. 
 
 implied § 2 p. 3 
 
 resulting § 2 p. 3 
 
 beneficiaries under § - p. 3 
 
 injunctions to enforce § 206 pp. 297-298 
 
 when receiver will be appointed in suits affecting ... § 240 p. 343 
 
 impeaching decrees improperly obtained in cases of . . § 358 p. 527 
 
 TRUST ESTATES, 
 
 as subjects of equity jurisdiction § 11 p. 12 
 
 costs out of § 335 pp. 490-497 
 
 TRUST PROPERTY, 
 
 who necessary parties in suits affecting § 45 p. 86 
 
 allowing beneficiaries to intervene in suits affecting . . § 201 p. 291 
 
 TRUSTEE, 
 
 bill against § 11 p. 13 
 
 accounting by § 11 p. 14 
 
 citizenship of § 19 p. 26 
 
 under deeds and mortgages, when necessary parties to 
 
 suits affecting property covered by § 45 p. 87 
 
 when not a necessary party in suit against colleagues for 
 
 breach of trust § 52 p. 96 
 
 of active trust, when necessary party to suit affecting trust 
 
 estate § 53 p. 99 
 
 facts showing that defendant is a, must be pleaded ... § 69 p. 116 
 effort of plaintiff to secure action by, on part of stockhold- 
 ers to be set forth § 76 p. 128 
 
 petition for appointment, removal, or resignation of . . § 199 p. 288 
 
 allowing beneficiaries of trust to intervene in suits affecting § 201 p. 291 
 
 when can be appointed receiver of trust estate .... § 255 p. 380 
 
 TRUSTEES OF RAILROAD MORTGAGE, 
 
 when not necessary parties to bondholders' foreclosure 
 
 suit § 51 p. 95 
 
 u. 
 
 UBERRIMA FIDES, 
 
 required on application for special injunction .... § 232 p. 331 
 
 ULTRA VIRES, 
 
 acts when enjoined at suit of stockholder § 12 p. 20 
 
 when act by corporation not enjoined § 12 p. 19 
 
 UNDERTAKING, 
 
 sometimes required that party omitted from bill will 
 
 conform to decree § 55 p. 10- 
 
 to abide further orders of the court, given on special ap- 
 pearance .... § 100 p. 162 
 
 may be required on issue, dissolution, or continuance of 
 
 injunction § - 3 ? P- ^3p 
 
 by receiver § 256 p. 381
 
 INDEX. 817 
 
 UNDERTAKING — continued. 
 
 plaintiff in error or appellant to give undertaking or other 
 security to clerk of United States Supreme Court tor 
 
 costs §331 p. 484 
 
 given in a cause prior to removal to Federal court, effect 
 
 of removal on same § 392 p. 5SS 
 
 See also Security; Supersedeas. 
 
 UNINCORPORATED ASSOCIATION, 
 
 parties to suits by members of, and on behalf of others 
 
 similarly situated § 47 p. 89 
 
 suing as a corporation, ground of demurrer § 108 p. 174 
 
 See also Voluntary Association. 
 
 UNITED STATES, 
 
 not bound by State statutes of limitation § 8 p. 1U 
 
 State statutes of limitation cannot bar § 8 p. 10 
 
 bill by, to cancel land patent § u p. 12 
 
 bill to enforce priority of payment ^ 11 p. 12 
 
 suits against and suits by . § 15 p. 21; § 30 pp. 68-71; § 03 p. 109; 
 
 § 74 p. 125 
 suits arising under Constitution or laws of . § 15 p. 21; § 17 p. 2.j 
 
 condemnation proceedings by § 15 p. 22 
 
 when cannot be sued § 3o p. 68 
 
 whether President thereof can be sued § 35 p. 68 
 
 as defendant § 30 pp. 08-71 
 
 filing of bills and informations by § 0o p. 109 
 
 multifariousness in bill by, to set aside land patent for 
 
 fraud § 74 p. 125 
 
 bill filed by, to vacate patent to public lands, what to con- 
 tain § 81 p. 139 
 
 service of subpoena, when United States is a party ... § 95 p. 153 
 
 iuj unction cannot be issued against § 223 p. 322 
 
 when costs will be allowed in suits to adjust claims against § 327 p. 479 
 not bound by any State statute of limitations .... § 375 p. 558 
 
 appeals on behalf of § 394 p. 592 
 
 See also statutes in Appendix, pp 658-603. 
 
 UNITED STATES COURTS, 
 
 how far can interfere by injunction with matters in Slate 
 
 courts § 211 p. 303 
 
 See also Federal Courts. 
 
 UNITED STATES STATUTES AND Tit KATIES, 
 
 introducing in evidence § 208 p. 405 
 
 UNITED STATES SUPREME COURT. 
 
 See Supreme Court of the United States. 
 
 UNSOUND MIND, 
 
 persons of. See Plaintiff and Defendant. 
 
 USURIOUS SECURITIES, 
 
 bill for cancellation of § 6 p. 9 
 
 USURY, 
 
 as a subject of equity jurisdiction § 6 p. 9 
 
 52
 
 818 
 
 INDEX. 
 
 UTAH, 
 
 writ of error to review judgments of Supreme Court of . § 394 p. 593 
 time within which cause to be docketed in United States 
 
 Supreme Court in case of appeals or writs of error from § 403 p. 608 
 UTILE PER INUTILE NON VITIATUR, 
 
 a maxim of equity pleading § 68 p. 116 
 
 V. 
 
 VACATION, 
 
 petition and bond for removal may be filed during . . • § 385 p. 575 
 VALUE, 
 
 of matter in dispute to confer jurisdiction .... § 16 pp. 23-25 
 bill to show whether amount involved exceeds the jurisdic- 
 tional amount § 76 p. 128 
 
 of subject-matter that it is beneath dignity of court, a 
 
 ground of demurrer § 108 p. 175 
 
 of matter in dispute as affecting removal of cause ... § 385 p. 575 
 of matter in dispute as affecting removal of suits contain- 
 ing controversies between citizens of the same State, 
 claiming land under grants of different States ... § 387 p. 580 
 of amount in dispute, as affected by subsequent events in 
 
 relation to right to remove cause to Federal court . . § 391 p. 587 
 when appeal to Supreme Court of the United States is 
 
 authorized, irrespective of value of matter in dispute . § 393 p. 590 
 of matter in controversy as affecting right to appeal . . § 394 p. 592 
 of matter in dispute, as affecting appeal to review final de- 
 cree of Circuit Court in which there has been a ques- 
 tion of jurisdiction § 394 p. 594 
 
 of matter in dispute, as affecting right to appeal to Su- 
 preme Court of the United States § 395 pp. 594-597 
 
 of matter in dispute immaterial, on writ of error from 
 Supreme Court to State court on account of Federal 
 
 question § 405 p. 616 
 
 VENUE, 
 
 of affidavit § 272 p. 407 
 
 VERDICT, 
 
 of jury upon an issue, how reviewed § 305 p. 452 
 
 trial judge, when he may direct § 374 p. 556 
 
 what rules relative to, govern in Federal court ... § 374 p. 556 
 State statute regulating form of, in Federal court, effect of § 374 p. 556 
 cause improperly removed to Federal court may be re- 
 manded even after verdict • • • § 393 p. 589 
 
 VERIFICATION, 
 
 of bill in suit affecting rights assertable by corporation . § 76 p. 127 
 
 of answer § 151 pp. 223-224 
 
 answer denying facts stated in petition for intervention, to 
 
 have a § 203 p. 293 
 
 of pleadings, how far State practice respecting, is followed § 300 p. 530 
 of affidavit. See also Affidavit; Evidence.
 
 INDEX. 819 
 
 VERMONT, 
 
 constitutes one judicial district § 20 p 55 
 
 times and places of hold- 
 ing court therein enu- 
 merated § 26 p. 55 
 
 the district of, included within the Second Circuit ... § 204 p. 295 
 
 VEXATIOUS CONDUCT, 
 
 dispaupering party for § 200 p. 290 
 
 VICE-CONSUL, 
 
 jurisdiction of District Courts in suit against .... § 25 p. 34 
 See also Consul. 
 
 VICTUS VICTORT TN EXPENSIS CONDEMN ATUS EST. 
 
 a rule of the civil law applied to payment of costs ... § 327 p. 477 
 
 VIDELICET, 
 
 statements under a, in bills § 07 p. 114 
 
 VIRGINIA, 
 
 divided into two districts § 26 p. 55 
 
 counties, times, and places of 
 holding court therein enum- 
 erated § 26 p. 55 
 
 districts of, included within Fourth Circuit § 204 p. 295 
 
 VOLUNTARY ASSOCIATION, 
 
 citizenship of members of § 45 p. 88 
 
 when members of, are necessary parties to suits affecting § 45 p. 8S 
 
 suing members of, as representing § 48 p. 90 
 
 See Unincorporated Association. 
 
 W. 
 
 WAIVERS, 
 
 in bills § 84 pp. 137-140 
 
 omission of, when ground for demurrer § S4 p. 140 
 
 of answer under oath § 148 p. 217 
 
 jury trial § 374 p. 554 
 
 enforcement of judgment or decree not a waiver of right- 
 to appeal or bring writ of error ........ §397 p. 601 
 
 nor is compliance with same a waiver § 397 p. 601 
 
 of failure to serve citation on defendants in error . . . §399 p. 604 
 
 WAR CLAIMS, 
 
 no suits for, against United States § 15 p. 22 
 
 WASHINGTON, 
 
 district of, included within Ninth Circuit §201 p. 20(1 
 
 appeals from Supreme Court of the State of § 394 p. 59 I 
 
 time within which cause to be docketed in United States 
 
 Supreme Court in case of appeals or writs of error from § 403 p. 608
 
 820 INDEX. 
 
 WASHINGTON, STATE OF, 
 
 constitutes one district § 2G p. 56 
 
 WASTE, 
 
 injunctions to restrain commission of § 210 p. 302; § 213 pp. 306-307 
 
 WEAK MIND, 
 
 capacity of persons of, to file bills in equity . § 28 p. 64; § 33 p. G7 
 
 suits against persons of § 40 p. 79 
 
 See also Idiot; Lunatic. 
 
 WESTBURY, LORD CHANCELLOR, 
 
 labors of, in widening jurisdiction of courts of equity . . ■ . § 1 p- 2 
 foundations according to, of interference by courts of 
 
 equity in cases of unlawful use of trademarks .... § 218 p. 317 
 
 WEST VIRGINIA. 
 
 constitutes one judicial district § 26 p. 56 
 
 times and places of hold- 
 ing court therein enum- 
 erated § 26 p. 56 
 
 district of, included within the Fourth Circuit .... § 204 p. 295 
 
 WIFE. See Married Women. 
 
 WIGRAM, 
 
 work of, on Discovery referred to on demurrer to the dis- 
 covery § 109 p. 178 
 
 referred to on negative pleas § 121 p. 190 
 
 WILL, 
 
 election under, as a subject of relief in equity § 2 p. 3 
 
 State statute authorizing setting aside of probate, enforce- 
 able in Federal courts § 7 p. 9 
 
 probate of, not set aside by equity § 12 p. 18 
 
 averments as to, in bill filed by executor ...... § 78 p. 132 
 
 WISCONSIN, 
 
 divided into two districts § 26 p. 56 
 
 counties, times, and places of 
 holding court therein enumer- 
 ated § 26 p. 56 
 
 districts of, included within Seventh Circuit § 204 p. 295 
 
 introducing in evideuce transcripts from certain books of 
 
 the District Courts in § 268 p. 401 
 
 WITNESS, 
 
 examination abroad § 2 p. 4 
 
 examination abroad as a subject of jurisdiction in equity . . § 2 p. 4 
 perpetuation of the testimony of, as a subject of jurisdic- 
 
 tion in equity § 2 p. 4 
 
 bills to perpetuate testimony of § 64 p. 110 
 
 when defendant not prevented from being, in his own 
 
 favor • • • § 84 p. 138 
 
 exemption of, from service of process § 98 p. 159 
 
 compelling to testify §277 pp. 412-413 
 
 procuring attendance of, before master § 313 p. 460
 
 INDEX. 
 
 821 
 
 WITNESS — continued. 
 
 deposition taken in cause prior to removal to Federal 
 court, whether witness can be compelled to sign same 
 
 after removal § 392 p. 589 
 
 competency of. See Evidence. 
 fees of. See Costs. 
 
 See also Evidence. 
 
 WIVES. See Married Women. 
 WORKMAN, 
 
 injunction restraining, from disclosing trade secrets . . § 206 p. 297 
 
 WRITS, 
 
 of quo warranto § 15 p. 22 
 
 remedial, as distinguished from other forms of injunction § 205 p. 297 
 
 ne exeat republica . .' • • §§ 261-263; pp. 389-394 
 
 of assistance to put receiver into possession § 318 p. 510 
 
 common-law procedure respecting writs .... § 360 pp. 529-530 
 form of, how far State practice followed respecting . . . § 360 p. 530 
 
 service of § 300 pp. 529-530 
 
 endorsement of § 360 pp. 529-530 
 
 of prohibition . . § 362 pp. 532-533 
 
 mandamus § 363 pp. 533-537 
 
 certiorari § 305 p. 540 
 
 habeas corpus §§ 360-368 pp. 541-549 
 
 error coram nobis § 379 pp. 561-562 
 
 WRITS, DUPLICATE, 
 
 against different defendants § 22 pp. 29-31 
 
 WRITS OF ASSISTANCE, 
 
 when and how issued § 348 pp. 510-511 
 
 WRITS OF ERROR AND APPEALS, 
 
 in Supreme Court of United States § 394 pp. 591-594 
 
 writs of error and appeals distinguished § 394 p. 591 
 
 to judgments of Territorial and State 
 
 courts § 394 pp. 591-592 
 
 what cases Supreme Court can review by writ of 
 
 error and by appeal § 394 pp. 592-594 
 
 value of matter in dispute § 395 pp. 594-597 
 
 certificate of division of opinion §396 pp. 597-598 
 
 right to appeal and bring error § 397 pp. 598-601 
 
 who may appeal, parties refusing § 397 pp. 598 
 
 parties to appeal or writ of error dying, bringing in 
 
 personal representative § 397 pp. 599-601 
 
 time within which writ of error or appeal must be 
 
 taken § 398 pp. 601-002 
 
 writs of error, practice and procedure to obtain § 399 pp. 602-604 
 
 service of, and of citations §399 pp. 603-604 
 
 security on writ of error or appeal § 400 pp. 604-005 
 
 appeals, practice and procedure in taking ... § 401 p. 605 
 
 appeals in habeas corpus proceedings .... § 368 pp. 548-549 
 
 supersedeas " " " .... § 402 pp. 606-607 
 
 return to writ of error or appeal §403 pp. 607-010
 
 822 INDEX. 
 
 WRITS OF ERROR AND APPEALS — continued. 
 
 review of judgments and decrees of District Courts by Cir- 
 cuit Courts § 404 pp. 610-612 
 
 writs of error from Supreme Court to State Courts . § 405 pp. 612-616 
 
 motions to dismiss appeals or writs of error ... § 406 pp. 616-617 
 
 printing of the record § 407 pp. 617-619 
 
 argument of appeals and writs of error in the Supreme 
 
 Court § 408 pp. 619 623 
 
 decision § 409 pp. 623-62 1 
 
 WRITS OF POSSESSION, 
 
 when awarded by Supreme Court § 409 p. 623 
 
 WRITS OF SEQUESTRATION, 
 
 when issued § 149 p. 221 
 
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