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 c/7«^'. 
 
 
 
 TREATISE 
 
 O N T H E 
 
 PLEADINGS 
 
 I N 
 
 SUITS 
 
 IN THE 
 
 COURT OF CHANCERY 
 
 BYE N,G L I S H BILL. 
 
 IN TWO BOOKS. 
 
 LONDON, 
 
 Frintecl for W. Owen, between the Temple-Gates, 
 Fleet-Street. 1780.

 
 4- 
 
 
 T 6 
 THE RIGHT HONOURABLlS 
 
 EDWARD LORD THURLOW, 
 
 BARON THURLOW OF ASHFIELD 
 
 IN THE COUNTY OF SUFFOLK, 
 
 LORD HIGH CHANCELLOR 
 
 OF 
 
 GREAT BRITAIN, 
 
 THE FOLLOWING TREATISE, 
 
 ON THE PLEADINGS 
 
 IN THE COURT OF E QJJ I T Y 
 
 IN WHICH HIS LORDSHIP PRESIDES, 
 
 is RESPECTFULLY INSCRIBED. 
 
 Aa 
 
 >Soa^?jr
 
 PREFACE. 
 
 A N attempt to methodize the fub- 
 je£t of the following pages has 
 not, it is apprehended, yet appeared in 
 print. The materials for a work of 
 this nature, which are open to the pub- 
 lic, are not very ample, or fatisfad:ory. 
 They confift, principally, either of mere 
 A 3 books
 
 PREFACE. 
 
 books of pradice, or of reports of ad- 
 judged cafes, generally fhort, and 
 fometimes incorrect. The experience 
 of the author of the following pages 
 has not enabled him to go much be- 
 yond thofe materials, and he is con- 
 fcious that the work is therefore very 
 imperfedt. An unwillingnefs to reft 
 his aflertions on his own authority 
 merely has induced him frequently 
 to refer to books of no efteem; and, 
 perhaps, the number of references is 
 too great, unlefs the work is conlldered 
 as an index to what may be found 
 on the fubjedt in other books. There 
 
 are
 
 PREFACE, 
 
 are, indeed, in private hands, notes of 
 determinations, of which no reports 
 have been yet publifhed, and alfo 
 notes of publifhed cafes more accurate 
 than the printed reports. A communi- 
 cation, through the bookfeller, of any 
 fuch notes, of any information which 
 experience may be able to furnifh, of 
 any hints for the better arrangement 
 of the work, or of any cenfure of 
 its inaccuracies, will be efteemed a 
 
 favor. If what Is now offered to the 
 public fhall be fo far approved, as to 
 encourage an attempt to render it more 
 worthy of notice, the advantages 
 A 4 which
 
 PREFACE. 
 
 which may be derived from any fuch 
 communication will be made ufe of for 
 that purpofe.
 
 O N T E N T S. 
 
 INTRODUCTION. 
 
 /I F the manner in which fuits are injlitiited and 
 defended Page I 
 
 BOOK I. 
 
 Of bills. 
 
 Chap. I. 
 
 Of the perfons capable^ and incapable y by themf elves ^ 
 of exhibiting a bill e 
 
 Of perfons capable ^ by themf elves, of exhibiting a 
 
 bill 5 
 
 Of informations by the officers of the king or queen 
 
 confort 6 
 
 Of perfons incapable, by themf elves, of exhibiting a 
 
 bill 8 
 
 1. Of infants 8 
 
 2. Of married nvomen g 
 
 3. Cf idiots, and lunatics 9 
 
 Chap. II. 
 
 Of thefeveral kinds and difinElions of bills 1 1 
 
 Of original bills 1 1 
 
 Of bills not original 12 
 
 Of bills in the nature of original bills 12 
 
 Chap.
 
 CONTENTS. 
 
 Chap. III. 
 
 Page 
 
 Of the frame ^ and end of the feveral hinds of bills I4_ 
 
 I. Of original hills j^ 
 Of original bills praying relief ja 
 
 1 . Of original bills praying the decree of the 
 court touching rights claimed by the perfon ex- 
 hibiting the hilly in oppofttion to rights claimed 
 
 by the perfon againji nvhom the bill is exhibited 1 4 
 Of the 7nanner of framitig bills 1 5 
 
 Of impertinence y and fcandal in bills 1 7 
 
 2. Of bills of interpleader 17 
 
 3. Of certiorari bills 1 8 
 Cf original bills not praying relief ig 
 
 1. Of hills to perpetuate the teflimony of nvitneffes 19 
 
 2. Of bills of dif cover y 19 
 
 II. Of bills not original 20 
 Jn ivhat cafes fuits may become defeBtve^ or abated 2 1 
 Jn ivhat manner the benefit of fuits which have be- 
 come dfeHivCj or abated^ may be obtained 23 
 
 1. By fupplemental bill 24 
 
 2. By bill of revivor 26 
 ■^. By bill of revivor, and fiipplement 27 
 /^. By original bill in the nature of a hill of re- 
 vivor 27 
 
 e. By original bill in the nature of a fupplemental 
 bill 28 
 
 Of the frame of the three firf of thofc fpccies of hills 29 
 
 1 . Of fupplemental bills 30 
 
 2 . Of hills of revivor 3 1 
 
 3. Of hills of revivor y and fi.'J'plement 32 
 
 III. Of
 
 CONTENTS. 
 
 Page 
 
 III. Of bills in the nature of original bills 33 
 
 1 . Of crofs bills. 33 
 
 2. Of bills of review 34 
 Of fupplemental bills for the fame purpofe 36 
 
 3. Of bills in the nature of bills of review 3-7 
 
 4. Of bills impeaching decrees upon the ground 
 of fraud 37 
 
 5. Of bills to carry decrees into execution 38 
 
 6. Of bills in the nature of bills of revivor 39 
 
 7. Of bills in the nature of fupplemei^tal bills 40 
 
 8. Of bills fled by the particidar directions of 
 the court 40 
 
 IV. Of informations 4 1 
 
 BOOK II. 
 
 Of the defence to bills, and of replications. 
 
 Chap. I, 
 Of the defence to bills 43 
 
 Chap. XL 
 
 Of the perfons capable^ and incapable^ by themfelveSy 
 of defendifig afuit as 
 
 Of infants, idiots, lunatics, and married women 45 
 
 Chap. III. 
 
 Of the nature of the various modes of defefice to a 
 bill ; afidfrf of demurrers 4(5 
 
 Of demurrers to the firfl fpecies of billsy and bills 
 of difcovery merely 49 
 
 I. Of
 
 CO NTENTS. 
 
 Page 
 
 I. Of demurrers to reliefs generally including a 
 
 demurrer to difcovery ^o 
 
 1 . Becaufe the plaintiff is incapable y aloney of in- 
 jVituting a fuit ^ I 
 
 2. For 'Want of parties 51 
 
 3 . For ivafjt of privity between the plaintiffs and 
 defendant ^3 
 
 4. For luant of title in the plaintiff 52 
 
 5. Becaufe the plaintiff fneivs an unlaiuful claim 56 
 
 6. For ivant of equity in the plaintiff s cafe 56 
 
 7. Becaufe the plaintiff hath remedy at law r<7 
 
 8. Becaufe the plaintiff hath remedy in the ecch' 
 ftafical court c; 8 
 
 9. Becaufe the relief prayed is againfl a proceeding 
 at lanv, upon a criminal profecution^ or a man- 
 datory writ 58 
 
 10. Becaufe the plaintiff ought to have eflahlifhed 
 his right at laiv before fling his bill {(p 
 
 1 1 . Becaufe the plaintiff demands fever al things of 
 dfferent natt:res a gait fl fever al defendants by 
 the fame bill 60 
 
 12. Becaufe the bill is brought for part of a matter 
 only 61 
 
 13. Becaufe the bill f jews no claim of inter efi in 
 the defendant 6 1 
 
 1 4. Becaufe the bill f jews no ground to charge the 
 di'fcndant with the plaintiff's demand 63 
 
 II. Of demurrers to difcovery onl^ 63 
 J . Becaufe the difcovery tnay make the defctidant 
 
 liable to pc.inSy and penalties 64 
 
 2. Be-.
 
 CONTENTS. 
 
 Page 
 
 2. Becmife it nuill make the defendant liable to 
 forfeiture 66 
 
 3. Becaufe the difcovery is immaterial 67 
 
 4. Becaufe the plaintiff fheivs tio title to the dif- 
 covery 68 
 
 III. Of demurrers upon a miflake, or inaccuracy 
 
 in a bill 68 
 
 IV. Of demurrers to bills of difcovery merely 69 
 Of the peculiar groimds of demurrer to the fever al 
 
 other fpecies of bills 70 
 
 Of demurrers to bills of itiierpleader 70 
 
 certiorari bills 70 
 
 bills to perpetuate the tejlitnony of nvitneffes 71 
 hills of revivor^ and fupplement ^ and hills 
 in 7iature of bills of revivor^ andfup- 
 plement 72 
 
 crofs hills 73 
 
 bills of revieivy and in the nature of hills 
 of revienvy and hills to impeach decrees 
 on the ground of faudy or to carry de- 
 crees into execution 7^ 
 hills fled by direction of the court 74 
 Of demurrers to hills irregularly exhibited 75 
 Of framing demurrers in general^ and of arguing 
 demurrers 76 
 
 C H A P IV. 
 
 Of pleas 79 
 
 I. Of pleas^4o the jurifdiBion of th e court 80 
 
 II. Of pleas to the p erf on of the plantffy or defnd- 
 ant 83 
 
 I. That
 
 CONTENTS 
 
 i . That the plantiff is outlawed 83 
 
 2. Excommunicated 84 
 
 3. A popyh recufant 8cJ 
 
 4. Attainted 85 
 
 5. An alien 85 
 
 6. Incapable of injlituting a fuit alone 86 
 
 7. ^Tjrt/ /i^^ plaintiffs or defendant^ is fiotfuch 
 per/on as allcdged in the bill 86 
 
 In. Of pleas in bar of the fuit 87 
 
 Of pleas in bar to the frf fpecies of bills, and bills 
 
 of dif cover y merely 87 
 
 Of pleas of matter recorded, or as of record, in the 
 
 court itfelf or fame other court of equity 88 
 
 1. A decree, or order 88 
 
 2. Another fuit depending 89 
 Of pleas in ^natters in pais only 92 
 Of pleas of matters in pais to relief, and nvhich 
 
 fometimes extend to difcovery alfo 92 
 
 1 . Want of title in the plaintiff 92 
 
 2. Wimt of parties to the fiat 93 
 
 3. Aflated account 94 
 
 4. An award 94 
 
 5. A releafc 95 
 
 6. A will 95 
 
 7. Piirchnfe, mortgage, or fctlhment, for va- 
 luable conf deration, without notice 95 
 
 Of pleas of matter in pais to difcovery only 98 
 
 1. That the difcoverv mayfuhjecl the dcfudant, 
 
 to pains, and penalties 99 
 
 2. That it would fubjecl him lo forfeiture 1 00 
 
 -i. That
 
 CONTENTS. 
 
 Page 
 
 3. T^hat it ivould betray the confidence repofed 
 in him as counfely attorney^ or arbitrator lol 
 Of pleas of matters of record^ or in the nature of mat^ 
 ters of record.^ in fome court not being a court of 
 equity^ either alone, or joined with matters in pais lot 
 
 1. AfinCy a7id non-claim 102 
 
 2. A recovery 1 04 
 
 3. A judgment at law, orfentence of fome other 
 court ■ 1 04 
 
 4. Afiatute 105 
 Of pleas in bar to the feveral other fpecies of hills 108 
 
 Of pleas to bills of interpleader 109 
 
 bills to perpetuate the teflimony of ivittiejfes 
 
 109 
 hills of revivor, andftipplement, and bills 
 in the nature of bills of revivor and 
 fupplement 1 09 
 
 crofs bills IIO 
 
 bills of review, and in the nature of bills 
 of revieiv, and bills to impeach decrees 
 on the ground of fraud IIO 
 
 bills to carry decrees into execution III 
 
 bills filed by direSlion of the court ill 
 
 Of framing pleas in general tl2 
 
 Of averments in pleas II3 
 
 Of anfwers infupport of pleas II 4 
 
 Of arguing pleas 1 16 
 
 Oj pleas luhich are not ufually argued 116 
 
 Of pleas put in upon oath, and of pleas filed with- 
 out oath 117 
 
 Chap.
 
 CONTENTS. 
 
 Chap. V. 
 
 Page 
 
 Of anfwers and difclaimers ; of exceptions to anfivers ; 
 
 and of demurrers, pleas, anfivers, and difclaimers^ 
 
 or any two, or more, of them, jointly 1 1 8 
 
 Of anfwers 1 1 8 
 
 Of impertinence, andfcandal in atjfwers 1 19 
 
 Of exceptions to anfwers \i() 
 
 Of farther anfwers, and anfwers to amended bills 123 
 
 Of difclaimers 1 23 
 
 Of demurrers, pleas, anfwers, and difclaimers, or 
 
 any two, or more, of thetn, jointly 124 
 
 Chap. VI. 
 
 Of replications 125 
 
 Of fpecial replications, and the fuhfequent pleadings 
 
 ancieiitly ifed 1 25 
 
 Of fubpoena to rejoin, and rejoinder 126 
 
 Conclufion ^27 
 
 INTRO-
 
 INTRODUCTION. 
 
 Of the rnnnner in ivhich fuits are injjituted and 
 defended. 
 
 A SUIT, feeking relief or afliftance from the 
 extraordiuaryjurifdidlionot the court of chan- 
 cery as a court of equity, is commenced by pre- 
 ferring a bill, in the nature of a petition % to the 
 lord chancellor, lord keeper, or lords commiiTioners 
 for the cuftody of the great feal, or to the king him- 
 felf in his court of chancery, in cafe the perfon 
 holding the feals is a party ^, or the fcals are in 
 the king's hands '^. The bill fo preferred may either 
 
 * Prac. Reg, 24. This authority, yet better colUned 
 
 book, and other books of than mofi of the kind. 
 
 piaftice, are only cited where ^ 4 Vin, Ab. 385. L. Leg. 
 
 no other authoi ity occurred, J.u'. in Ch. 44. 255, 258. Jud. 
 
 or where they might lead the Auth. M. R. 182. j Prax. 
 
 reader to farther information A!m. Cur. Cane. 463. Ld. 
 
 on the fubjeft. The Pra6ti- Chan. JefFeries againll Wi- 
 
 cal Regifter is mentioned by therley. 
 
 Lord Hardwicke, 2 Atk. 22. « 2 Wefl. Syrab. Chancery, 
 
 9S a book, though not of 194, b, 
 
 B ^ complain
 
 ( a ) 
 
 complain of fome injury, which the perfon exhibit^ 
 ing the bill fufFers from fome other perfon, and 
 from which it is the peculiar office of a court of 
 equity to relieve the fufFerer, and pray relief accord- 
 ing to the injury; or, without praying relief againft 
 an injury fuffered, it may feek a difcovery of mat" 
 ter neceflary to fupport, or defend, an action at the 
 common law j or, although no adlual injury is fuf- 
 fered, it may complain of a threatened wrong, and, 
 ftating a probable ground of poffible injury, may 
 pray the affiftance of the court, to enable the per- 
 fon complaining, to defend himfelf againft the in- 
 jury, whenever it fhould be attempted to be com- 
 mitted ''. If a fuit is inftituted on behalf of the 
 crown, or of thofe who partake of its prerogative, 
 er for whom it is a truftee, the proceeding is rather 
 varied in ftyle; the matter of complaint being offered 
 to the court by way of informatipn, given by the 
 proper officer, and not by way of petition. 
 
 The bill generally requires the anfwer of the 
 party complained of upon oath. It was always, 
 therefore, neceffary that it fhould be in the Englifh 
 language ; and a fuit preferred in this manner in 
 the court of chancery was termed a fuit hy EngliJ}) 
 billy by way of diftin^lion from the proceedings in 
 fuits within the ordinary jurifdiftion of the court, 
 which, till the 4 Geo. II. c. 26. were entered, and 
 inrolled, more anciently in the French orNormaq 
 
 " Prec. in Ch, 531. 1 Atkyns, 284. 
 
 tongue,
 
 ( 3 ) 
 
 tongue, and afterwards in the Latin, in the fame 
 manner as the pleadings in the other courts of com- 
 mon law. 
 
 To the complaint thus made, it is neceflary for the 
 perfon complained of either to make defence, which 
 may be done, i. by demurrer; 2. by plea; 3. by 
 anfwer ; or to difclaim all right to the matters in 
 queftion by the bill. A demurrer admits the truth 
 of the fadls contained in the bill, or in the part of 
 the bill to which it extends ; but infills, that from 
 fome matter of law, or fome matter apparent on the 
 face of the bill, the plaintiff, or perfon exhibiting 
 the bill, is not intitled to the relief, or to the whole 
 of the relief, he feeks by it. Therefore a demurrer, 
 if allowed, prevents any farther proceedings upon 
 the bill, or upon fo much thereof as the demurrer 
 extends to. But a plea, or anfwer, controverts the 
 fadls in the bill ; and generally ftates other fafts, 
 to fliew the rights of the defendant, or perfon 
 againft whom the bill is exhibited. The plaintiff, 
 therefore, may deny the truth of a plea, or anfwer, 
 and affert the fuficiency of the bill, by a replication ; 
 and thereupon proceed to examine witnelTes to fup- 
 port the cafe made by the bill, and to invalidate 
 the plea, or anfwer. The replication concludes the 
 pleadings, according to the prefent ^ practice of the 
 court. A difclaimer, neither afferting any faft, 
 nor denying any right fought by the bill, admits 
 UP farther pleading. 
 
 f See book ii. chap. 6. 
 
 P 2 In
 
 ( 4 ) 
 
 In an enquiry into the nature of the feveral plead- 
 ings, it feems moft convenient to confider them in 
 the order in which they have their efFe£t, and cout 
 fequently to treat, i. of bills ; 2. of the defence 
 to bills, and therein of demurrers, pleas, anfwers, 
 ^nd difclaimers j and 3. of replications. 
 
 3500K
 
 BOOK THE FIRST. 
 
 Of bills. 
 
 CHAPTER I. 
 
 Of the perfons capable and incapahky by themfelveSf of 
 exhibiting a bill. 
 
 IN treating of bills, it will be proper to confider, 
 I. the feveral perfons who are capable of ex- 
 hibiting a bill, by themfelves, or under the protec- 
 tion, or in the name, of others : 2. the feveral 
 kinds, and diftinftions, of bills: and 3. the frame, 
 and end, of the feveral kinds of bills. 
 
 All bodies politic and corporate, and all perfons 
 of full age, not being femes-covert * idiots or lu- 
 natics ''j may by themfelves exhibit a bill of com- 
 plaint 
 
 2 The queen confort may cy, attainder, and alienage, 
 
 fue alone. Co. Litt. 133. So and thofe which formerly 
 
 may a queen dowager, arofe from villenage and pro- 
 
 though married. 2 Inft. 50- feflion, ought to be here no- 
 
 b It may feem, that the ticed. Such of them as fub- 
 
 difabilities arifing from out- fift do not, and the others 
 
 lawry, excommunication* did not, abfolutely difable the 
 
 convidlion of Popifti reciifan- perfon fuffering under them 
 
 B 3 from
 
 ( 6 ) 
 
 plamt in the court of chancery, excepting only the 
 king and queen. Suits in refpe£l to rights of the 
 crown % or of thofe for whom it is a truftee, are 
 carried on in the name of the king's attorney or fo- 
 licitor-general ''. As thefe officers of the crown are 
 fuppofed to a£t in this i-nftance merely officially, the 
 bill they exhibit is by way, not of complaint, but of 
 information to the court of the rights which the 
 crown claims on behalf of itfelf or others, and of 
 the invafion or detention of thofe rights, for which 
 the fuit is indituted. If the fuit does not imme- 
 diately concern the rights of the crown, its officers 
 are not fuppofed to have any perfonal knowledge of 
 the matter, but to depend on the relation of fome 
 
 from exhibiting a bill. Out- 
 lawry, excommunication, and 
 conviction of Popilh recufan- 
 ty, are not in fome cafes any 
 difability; and where they 
 are a difability, if it is re- 
 moved by reverfal of the 
 outlawry, by purchafe of let- 
 ters of abfo'ution in the cafe 
 of excommnnicatioB, or by 
 coufoiniity in tlie cafe of a 
 Popifli reciifantj a bill exhi- 
 bited under the difability may 
 be proceeded upon. Attain- 
 der and alienage no other- 
 wife dilable a perfou to fuc, 
 than as they deprive him of 
 the property which may be 
 the objcdt of the fuit. Villen- 
 age aiui profenion were in 
 the ianie predicament. 
 
 * 1 Vern. 277. 370. Att, 
 Gen. V. Vernon. 
 
 ** See, as to the foUcitor ge- 
 neral, Wilkes's Cafe, 4 Burr. 
 25x7; and, Sol. Gen. v. War- 
 den and Fellowship of Sut- 
 ton Coldfield, Mich. 1763, 
 in chancery. This fubjedl 
 is particularly confidered in 
 part iii. fee. 3. of a treatife 
 on the Star-chamber, in the 
 Britifh Mufeum, Harl. MSS. 
 vol. i. no. 1226, mentioned 
 in 4 Bl. Com. 467, As the 
 mode of proceeding in the 
 court of Itar-chamber re- 
 rtmbled that in courts of 
 cciuity, the above-mentioned 
 miuuifcript will, in fubfe- 
 qiieiit parts of this work, be 
 referred lo as an authority, 
 pcrfon.
 
 ( 7 ) 
 
 perfon, whofe name is inferted in the information j 
 and who is termed the relator. It fometimes hap- 
 pens, that this peribn has an intereft in the mattet 
 in difpute, of the injury to which intereft he has a 
 right to complain. In this cafe his perfonal com- 
 plaint being joined to, and incorporated with, the 
 information given to the court by the officer of the 
 crown, they form together an information and bill, 
 and are fo termed. Butif the {uit immediately concerns 
 the rights of the crown, the information is generally 
 exhibited without a relator \ Where a relator in fuch 
 a cafe has been named, it has been done through 
 the tendernefs of the officers of the crown towards 
 the defendant, that the court might award cofts 
 againft the relator, if the fuit fhould appear to have 
 been improperly inftituted, or in any ftage of it 
 improperly conducted ^. The queen-confort, par- 
 taking of the prerogative of the crown, may alfo 
 inform by her attorney ^. An information differing 
 from a bill in little more than in name and in form, 
 its nature will be principally confidered under the 
 general head of bills, and its peculiarities will be 
 taken notice of at the conclufion of the book. 
 
 ' Att. Gen. v. Vernon, i. baron Perrot, in a caufe in 
 
 Vern. 177. 370. Att. Gen. v. the exchequer, Att. Gen. v. 
 
 Crofts. I. Brown. Pari. Ca. Fox. In that caufe no relator 
 
 az2, was named j and though the 
 
 ' The propriety of naming defendants finally prevailed, 
 
 a relator for this purpofe, they were put to an expence 
 
 and the oppreflion arifing almoft equal to the value of 
 
 from a contrary praftice, the property in difpute. 
 
 \itrere particularly noticed by « aRoU, Ab. aij. 
 
 B 4 The
 
 ( 8 ) 
 
 The perfons, who are incapable hy themfelves of 
 inftituting a fuit, are, I. infants; 2. married women ; 
 3. idiotSj and lunatics. 
 
 I. An infant is incapable by himfelf of exhibiting 
 a bill, as well on account of his fuppofed want of 
 difcretion, as his inability to bind himfelf, and to 
 make himfelf liable to the coils of the fuit. When 
 therefore an infant claims a right, or fuffers an in- 
 jury, on account of which it is neceflary to refort to 
 the extraordinary jurifdidlion of the court of chan- 
 cery, his neareft relation is fuppofed to be the per- 
 fon who will take him under his proteftion, and 
 inftitute a fuit to alTert his rights, or to vindicate 
 his wrongs. The perfon, who inftitutes a? fuit on 
 behalf of an infant, is therefore termed his next 
 friend. But as it frequently happens, that the neareft 
 relation of the infant himfelf with-holds the right, or 
 does the injury, or at leaft negledls to give that pro- 
 teftion to the infant which his confanguinity or affi- 
 nity calls upon him to give, the court, in favour of 
 infants, will permit any perfon to inflitute fuits on 
 their behalf ". Such perfon, being fuppofed to a£l 
 the part which the neareft relation ought to take, is 
 alfo llyled the next friend of the infant, and as fuch 
 is named in the bill. The next friend is liable to 
 the cofts of the fuit ' ; and to the ccnfure of the 
 
 " Piec. in Ch, 376. i Alkyns, 570. ' Mofely, 47. 86. 
 
 court,,
 
 ( 9 ) 
 
 court, If the fuit is wantonly or improperly Infci- 
 tuted. 
 
 2. A married woman being under the proteftlon 
 of her hufband, a fuit refpe£ling her rights is ufu- 
 ally inftituted by them jointly. But it fometimes 
 happens, that a married woman claims fome right in 
 oppofition to rights claimed by her hufband ; and 
 then the hufband being the perfon, or one of the 
 perfons, to be complained of, the complaint can- 
 not be made by him. In fuch cafe, therefore, as 
 the wife, being under the difability of coverture, 
 cannot fue alone, and yet cannot fue under the pro- 
 tection of her hufband, fhe muft feek fome other 
 prote£lion, and the bill mufl be exhibited in her 
 name by her next friend ", who is alfo named in 
 the bill in the fame manner as in the cafe of an 
 infant. But a bill cannot in the cafe of a feme- 
 covert be filed without her confent ', as may be 
 done in the cafe of an infant. 
 
 3. The care and commitment of the cuflody of 
 the perfons and eflates of idiots and lunatics are 
 the prerogative of the crown, and are always granted 
 to the perfon holding the great feal, by the royal 
 fign manual. By virtue of this authority, upon an 
 inquifition finding any perfon an idiot, or a luna- 
 tic, grants of the cuftody of the perfon and eftate 
 of the. idiot, or lunatic, are made to fuch perfons as 
 the lord chancellor, or lord keeper, or lords com- 
 
 " a Vefey, 45a. 'Prec, in Ch. 37 6 j 
 
 miffioners
 
 C lO ) 
 
 miffioners for the cuftody of the great feal for the 
 time being, fhall think proper ". Idiots and luna- 
 tics, therefore, fue by the committees of their 
 cftates ". Sometimes, indeed, informations have 
 been exhibited by the attorney-general, on behalf 
 both of idiots and lunatics, confidering them as 
 under the peculiar protedlion of the crown <>. 
 
 » 3 P. Williams, io6, 107. Reg. a 32. 
 
 » Eq. Ca. Ab, 279. P.ac- ° t Chan. Ca. m«. 153. 
 
 CHAP,
 
 ( II ) 
 
 CHAP. II. 
 
 Of the feveral kinds and diJl'inElions of bills. 
 
 BILLS, with refpeift to their feveral kinds 
 and diftin£tions, may be confidered under three 
 general heads. I. Original bills, which relate to 
 feme matter not before litigated in the court by the 
 fame perfons Handing in the fame interells. II. Bills 
 not original, which are either an addition to, or a 
 continuance of, an original bill, or both. III. Bills, 
 which, though occafioned by, or feeking the bene- 
 fit of, a former bill, are not a continuance thereof, 
 and are therefore in the nature of original bills. 
 
 I. Original bills may be again divided into bills 
 praying relief, and bills not praying relief. — An 
 original bill praying relief may be, i. A bill pray- 
 ing the decree of the court touching fome right 
 claimed by the perfon exhibiting the bill, in oppo- 
 fition to fome right claimed by the perfon againft 
 whom the bill is exhibited. 2. A bill of interpleader, 
 where the perfon exhibiting the bill claims no right 
 in oppofition to the rights claimed by the perfons 
 againft whom the bill is exhibited, but prays the 
 decree of the court touching the rights of thofe 
 perfons, for the fafety of the perfon exhibiting the 
 bill. 3. A bill praying the writ of certiorari to re- 
 move a caufe from an inferior court of equity.— 
 
 An
 
 ( 12 ) 
 
 An original bill not praying relief maybe, I. A bill 
 to perpetuate the tedimony of witnefles. 2. A bill 
 for difcovery of facts refbing within the knowledge 
 oftheperfon againft whom the bill is exhibited, or 
 of deeds, writings, or other things, in his cuftody 
 or power. 
 
 II. A bill not original, but an addition to, or a 
 continuance of, an original bill, or both, may be, 
 I. A fupplemental bill, which Is merely an addition 
 to the original bill. 2. A bill of revivor, which is 
 a continuance of the original bill, when by death 
 feme party to it has become incapable of profecut- 
 Ing or defending a fuit, or a female plaintiff has by 
 marriage incapacitated herfelf from fuing alone. 
 3. A bill both of revivor and fupplement, which 
 both continues a fuit upon an abatement, and fup- 
 plies defedts arifen from fome event fubfequent to 
 the inftitution of the fuit. 
 
 III. A bill in the nature of an original bill, though 
 occafioned by, or feeking the benefit of, a former 
 bill, maybe, i. A crofs bill, exhibited by the de- 
 fendant in a former bill, againft the plaintiff in the 
 fame bill, touching fome matter in litigation in the 
 firft bill. 2. A bill of review, to examine and re- 
 verfe a decree, made upon a former bill, and figned 
 by the perfon holding the feals, and inrolled, where- 
 by it has become a record of the court. 3. A bill in 
 the nature of a bill of review, brought by a perfon 
 not bound by the former decree. 4. A bill to im- 
 peach a decree upon the ground of fraud. 5. A bill 
 
 to
 
 ( 13 ) 
 to carry a decree made in a former fu'it into exe-« 
 cution. 6. A bill in the nature of a bill of revivor, 
 to obtain the benefit of a fuit after abatement, in 
 certain cafes w^hich do not admit of a continuance 
 of the original bill. 7. A bill in the nature of a 
 fupplemental bill, to obtain the benefit of a fuit, 
 either after abatement in other cafes which do not 
 admit of a continuance of the original bill ; or after 
 the fuit is become defedlive, u'ithout abatement, in 
 cafes which do not admit of a fupplemental bill to 
 fupply that defeft. 8. A bill filed by the direftion 
 of the court, for the purpofe of obtaining its decree 
 touching fome matter not put in iflue by a former 
 bill, or not in iffiie between the proper parties, but 
 which muft neceflarily be determined, to enable 
 the court to make a complete decree touching the 
 platters in litigation upon the firft bill. 
 
 CHAP.
 
 ( 14 ) 
 
 CHAP. III. 
 
 Of the frame and end of the feveral kinds of hills. 
 
 TH E feveral kinds of bills have been already 
 confidered as divided into three clafles. In 
 the firfl: clafs have been ranked original bills ; in 
 the fecond, bills not original j in the third, bills 
 in the nature of original bills, though occafioned by- 
 former bills. Informations may be confidered under 
 a fourth head. 
 
 I. Original bills have been mentioned as again 
 divifible into bills praying relief, and bills not 
 praying relief. 
 
 Original bills praying relief have been ranked 
 under three heads. — i. Original bills praying the 
 decree of the court touching fome right claimed 
 by the perfon exhibiting the bill, in oppofition 
 to rights claimed by the perfon againft whom 
 the bill is exhibited. 2. Bills of interpleader. And 
 3. Certiorari bills.— Bills of the firft kind are the 
 bills moft: ufually exhibited in the court ; and as the 
 feveral other kinds of bills are either confequences 
 of this, or very fimilar to it in many refpe<5ls, the 
 confuleration of bills of this kind will in a great 
 meafure involve the confideration of bills in ge- 
 neral. 
 
 I. An original bill praying the decree of the 
 court touching rights claimed by the perfon exhi- 
 biting the bill, in oppofition to rights claimed by 
 
 the
 
 ( ^5 ) 
 the perfon againft whom the bill is exhibited, muft 
 {hew the rights of the plaintiff, or perfon exhibit- 
 ing the bill ; by whom, and in what manner, he is 
 injured j or in what he wants the afliflance of the 
 court J that he is without remedy, except in a court 
 of equity ; or at lead is properly relievable, or can 
 be moft effe£lually relieved there. Having thus 
 fliewn the plaintiff's title to the affiftance of the 
 court, the bill may pray, that the defendant, or 
 perfon againft whom the bill is exhibited, may an- 
 fwer upon oath the matters charged againft him. 
 It may alfo pray the relief or affiftance of the court, 
 which the plaintiff's cafe intitles him to. For thefe 
 purpofes the bill muft pray, that a writ, called a writ 
 of fubpocna, may iffue under the great feal, which 
 is the feal of the court, to require the defendant's 
 appearance, and anfwer to the bill. It is ufual to 
 add to the prayer of the bill, a general prayer of 
 that relief, which the circumftances of the cafe may 
 require; that if the plaintiff miftakes the relief to 
 which he is intitled, the court may yet afford him 
 that relief to which he has a right *". Indeed, 
 a prayer of general relief, without a fpecial prayer 
 of t}ie particular relief to which the plaintiff thinks 
 himfelf intitled, is fufficient '' ; and the particular 
 relief the cafe requires may, at the hearing, be 
 prayed at the bar. But this relief muft be agreeable 
 to the cafe made by the bill, and not different 
 from it '. 
 
 fa Mod. 91,91, ' a Atkyns, 141. 3 Atk. 
 
 3 a Atkyns, 3. 131. 
 
 All
 
 ( i6 ) 
 
 All perfons concerned in the demand, or who 
 may be afFedled by the relief prayed, ought to be 
 parties, if within the jurifdi£lion of the court '. 
 But if any neceflary parties are omitted, or unne- 
 cefl'ary parties are inferted, the court, upon appli- 
 cation, will permit the proper alterations to be 
 made. If, however, a perfon has been made a 
 plaintiff who is an unneceflary party, or ought to 
 have been a defendant, the court will not permit 
 his name to be flruck out as a plaintiff, efpecially 
 after anfwer, unlefs upon a fpecial application; and 
 then, if the defendants require it, not without fe- 
 curity for their cofts. 
 
 It is the practice to infert in a bill a general 
 charge, that the parties named in it combine toge- 
 ther, and with feveral other perfons, unknown 
 to the plaintiff, whofe names, when difcovered, 
 the plaintiff prays he may be at liberty to infert in 
 the bill. This practice is faid to have arifen from 
 an idea, that without fuch a charge parties could not 
 be added to the bill by amendment. From what- 
 ever caufc it has arifen it is ftill adhered to, except 
 in the cafe of a peer, who was never charged with 
 combining with others to deprive a plaintiff of his 
 right, cither out of refpeft to the peerage, or per- 
 haps apprehenfion that fuch a charge might be con- 
 11 rued a breach of privilege. 
 
 The rights of the feveral parties, the injury com- 
 plained of, and every other nccellary circumltance, 
 
 ' Free in Cli. 83. 2 Alkyns, 510, 
 
 as
 
 ( ^7 ) 
 as time, place, manner, or other incidents, ou^Kt 
 to be plainly, yet fuccincElly, alledged. And as the 
 bill muft be fufficient in fubftance, fo it muft have 
 convenient form ^ 
 
 Every bill muft be figned by counfel ; and if it 
 contains matter criminal, impertinent, or fcanda- 
 lous, fuch matter Iliall be expunged, and the coun- 
 fel fhall pay cofts to the party aggrieved ". But 
 nothing relevant is to be confidered as fcandalous \ 
 
 Two feveral bills cannot be filed againft the fame 
 defendants for the fame matters, nor one bill for 
 feparate and diftincl matters ; nor will the court 
 permit a plaintiff to file feveral bills againft feveral 
 defendants, where their interefts are all the fame, 
 and can properly be determined upon one bill. 
 
 2. Where two or more perfons claim the fame 
 thing by different or feparate interefts, and another 
 perfon, not knowing to which of the claimants he 
 ought of right to render a debt or duty, fears he 
 may be hurt by fome of them, he may exhibit a bill 
 of interpleader againft them \ In this bill he muft 
 ftate his own rights, and their feveral claims, and 
 pray that they may interplead, fo that the court 
 may adjudge to whcfkn the thing belongs, and he 
 may be indemnified ^. If any fuits at law are 
 brought againft him, he may alfo pray, that the 
 
 / 
 
 t Prac. Reg. 24, 25. ^ Bunbury, 303. lEqu. Ca» 
 
 " Rules and Orders of Clia. Ab. 80. 
 93. I Ch. Rep. 194.. * a Eq. Ca. Ab. 173. i 
 
 " 2 Vefey, 24.. Burr. 37. Prac. Reg. 38. 
 
 C claimants
 
 (18) 
 
 claimants may be reflrained from proceeding till 
 the right is determined «. The plaintiff, in a bill 
 of interpleader, muft annex to it an afHdavit, that 
 there is no collufion between him and any of the 
 parties i and if any money is due from him, he 
 ought to bring it into court, or offer fo to do by 
 his bill \ 
 
 3. When an equitable right is fued for in an 
 inferior court of equity, and, by means of the li- 
 mited jurifdidlion of the court, the defendant can- 
 not have complete juftice, or the caufe is without 
 the jurifdi6lion of the inferior court, the defendant « 
 may file a bill in chancery, praying a fpecial writ, 
 called a writ of certiorari, to remove the caufe into 
 the court of chancery '^. This fpecies of bill, hav- 
 ing no other objedl than to remove a caufe from an 
 inferior court of equity, merely flates the pro- 
 ceedings in the inferior court-, fhews the incompe- 
 tency of that court, and prays the writ of certiorari. 
 It does not pray, that the defendant may anfwer, or 
 even appear, to the bill, and confcquently it prays 
 no writ of fubpccna. The proceedings upon the 
 bill are peculiar, and are particularly mentioned in 
 the books which treat of the practice of the court ". 
 It may fecm improper to confider certiorari bills 
 
 • Prac. Rtg. 39. Lond. 291. Car. Rep. 48. 
 
 • Prac. Reg. 39. Bunbury, i Verii. 178. 
 
 303. • Piac. Reg. 41. Sol, Prac. 
 
 • zChan. Rtp. 109, iio. in Cliun. tpjt. 4. 
 
 ' Prac. Reg. 41. Holi. Prn 
 
 under
 
 ( 19 ) 
 
 under the head of bills praying relief. But as 
 they always alledge fome incompetency of the in- 
 ferior court, or injuflice in its proceedings ^, and 
 feek relief againft that incompetency, or injuftice, 
 they feem more properly to come into confidera- 
 tion under this head, than under any other ; efpe- 
 cially as in cafe the court of chancery removes the 
 caufe from the inferior court, the bill exhibited in 
 that court is confidered as an original bill in the 
 court of chancery, and is proceeded upon as fuch. 
 
 Original bills not praying relief have been already 
 mentioned to be of two kinds, i. bills to perpetuate 
 the teftimony of witnefles j and 2. bills of difco- 
 very. 
 
 1. A bill to perpetuate the teftimony of witnefles 
 muft fhew a title in the plaintiff * to the thing where- 
 to the teftimony relates, and pray leave to examine 
 witnefles thereto, to the end their teftimony may 
 be preferved and perpetuated. 
 
 2. Every bill is in reality a bill of difcovery ; but 
 the fpecies of bill ufually diftinguiftied by that title, 
 is a bill for difcov^ery of facls refting in the know- 
 ledge of the defendant, or of deeds or writings in 
 his cuftody or power, and feeking no relief in con- 
 fequence of the difcovery. A bill of this nature 
 muft fhew a right to the difcovery prayed. To a 
 bill feeking a difcovery of deeds or writings, a 
 prayer that they may be delivered up is fometimes 
 
 f iVern.44?. Smith v. Att. Gen. Mich. 
 
 « Rep. Temp. Finch. 391. ^777. 
 
 C 2 added.
 
 { 20 ) 
 
 added. But if any relief beyond the mere delivery 
 of the deeds or writings is prayed, the plaintiff 
 muft annex to his bill an aflidavit, that the deeds, of 
 which he feeks a difcovery, are not in his cufiody 
 or power, and that he knows not where they are, 
 unlefs they are iu the hands of the defendant. A 
 bill for a difcovery merely, or which only prays the 
 delivery of deeds or writings, requires no fuch 
 annexed affidavit ". 
 
 II. Bills not original are either an addition to, or 
 a continuance of, an original bill, or both. A fuit, 
 perfetl in its inllitution, may by fome fubfequent 
 event become defe6live, fo that no proceeding can 
 be had, either as to the whole, or as to fome part, 
 with efFeft. Or it may become abated, fo that 
 there can be no proceeding at all, either as to the 
 whole, or as to part of the bill. The firfl is the cafe, 
 where, although the parties to the fuit remain be- 
 fore the court, fome fubfequc!it event has either 
 made fach a change in their interefts, or given to 
 fome other pcrfon fuch an intereft in the matters in 
 litigation, that the proceedings, as they ftand, can- 
 not have their full effeft. The other is the cafe 
 where, by fome fubfequent event, there is no per- 
 fon before the court, by whom, or againll whom, 
 the fuit, in the whole, or in part, can be profe- 
 cutcd. It is not very accurately afcertained in the 
 books of prai^tice, or in the reports, in what cafes 
 
 ^ X P. Wins 541. 3 Atkyns, 132. 
 
 a fuit
 
 ( 21 ) 
 
 a fuit becomes defe£live, without being abfoiutely 
 abated ; and in what cafes it abates, as well as be- 
 comes defe£live. But upon the whole it may be 
 collected ', that if by any means the intereft of a 
 party in any matter in litigation becomes veiled in 
 another, the proceedings are rendered defective, 
 in proportion as that intereft affects the fuit •, fo 
 that although the parties to the fuit remain as be- 
 fore, yet the end of the fuit cannot be obtained. 
 And if fuch a change of intereft is occafioned by, 
 or is the confequence of, the death of a party whofe 
 intereft is not determined by his death, or the mar- 
 riage of a female plaintiff, the proceedings become 
 Kkewife abated, or difcontinued, either in part or 
 in the whole. For as far as the intereft of a party 
 dying extends, there is no longer any perfon before 
 the court by whom, or againft whom, the fuit can 
 be profecuted ; and a married woman is incapable 
 by herfelf of profecuting a fuit. As the intereft of 
 a plaintiff generally extends to the whole fuit, 
 therefore, in general, upon the death of a plaintiff, 
 or marriage of a female plaintiff, all proceedings 
 become abated \ Upon the death of a defendant, 
 
 ' It is innpoflTible to give attentive perufal of the ca(es 
 authorities for every thing it will be found, that, in ge- 
 aiTerted upon this head. The neral, the grounds of the de- 
 books, in words, almoft as cifions warrant the conciu- 
 frcquently contradift as fup- fions here drawn, 
 port thefe afTertions. But it ^ j Eq. Ca. Ab. i. mar- 
 ;is conceived, that from an gin. 
 
 C 3 like wife,
 
 ( 22 ) 
 
 likewife, all proceedings abate as to that defendant. 
 But upon the marriage of a female defendant the 
 proceedings do not abate ', though her hufband 
 ought to be named in the fubfequent proceedings "". 
 If the intcreft of a party dying fo determines that 
 it can no longer affeft the fuit, and no perfon be- 
 comes intitled thereupon to the fame interelt, as 
 frequently happens in the cafe of a tenant for life, 
 the fuit does not abate. If the intereil of a party 
 dying furvives to another party ; as if a bill is filed 
 by, or againft, truftees or executors, and one dies ; 
 or by or againft hufband and wife, in right of the 
 •wife, and the hufband dies " ; the proceedings do 
 not abate. So if a furviving party can fuftain the 
 fuit, as in the cafe of feveral creditors plaintiffs on 
 behalf of themfelves and other creditors ; for the 
 pcrfons rcmair.ing before the court, in all thefc 
 cafes, have in them the whole intereft in the mat- 
 ter in litigation, or at leaft are competent to call 
 
 ' 4 Vin. Ab. 147. PI. 20. that pofiefTion. And it has 
 
 I Vern. 318, been determined, that where 
 
 " The leafon cS the (Wf- n female plaintiff has mar- 
 
 fi-rence between the rafes of lied, and has, notwithftand- 
 
 3 female phintiff and defend- ing, proceeded in a fuit as a 
 
 snt Teems to be, th;it a phiin- feme Tole, the mrre iL'aut of 
 
 tiff feeking to obtain a riglit, a bill of revivor is not error 
 
 the (Itfendant may be injui td ior which a decree can be re- 
 
 by anfwering to one who is vcrfed, upon a bill of re- 
 
 not intitled to fne for If ; but view hron^.ht by the de- 
 
 a defendant merely juflirying fendant, i Chan. Rep. 231. 
 
 a pofTcfTion, the plaintiff can- NelC. Rep. 86. 
 not lie injured by a decree » 3 Chan. Rep. 40. tVern. 
 
 aj^ainft the ptrfon holding 149. 3 Atkyns, 726. 
 
 upon
 
 ( 23 ) 
 
 upon the court for its decree. If, indeed, upon 
 the death of the hufband of a female plaintiff, fuing 
 in her right, the widow does not proceed in the 
 caufe, the bill is confidered as abated, and fhe is 
 not liable to the cofts °. But if flie does take 
 any ftep in the caufe, the fuit may proceed with- 
 out a bill of revivor ; for fhe alone has the whole 
 interefl, and the hufband was a party in her right. 
 The cafe is the fame if a female plaintiff mar- 
 ries pending a fuit, and afterwards before revivor 
 her hufband dies ; for then her incapacity to pro- 
 fecute the fuit is removed. After a decree on a 
 bill of interpleader, there is generally an end of the 
 fuit as to the plaintiff j and if he dies the caufe may 
 proceed without revivor °. 
 
 There is the fame want of accuracy in the books, 
 in afcertaining the manner in which the benefit of 
 a fuit may be obtained, after it has become defective 
 or abated by an event fubfequent to its inftitution, 
 as there is in the diflin£lion between the cafes where 
 a fuit becomes defective merely, and where it like- 
 wife abates. It feems, however, clear, that if any 
 property or right, in litigation, veiled in a plainti^^ 
 is tranfmitted to another, the perfon to whom it is 
 tranfmitted is intitled to fupply the defedls of the 
 fuit, if become defeftive merely, and to continue 
 it, or at leaft to have the benefit of it, if abated. 
 It feeras alfo clear, that if any property or right, 
 
 ■» Treat, on Star-cham. p. ° i Vcrn. 351, 
 3. lea. 3. Harl. MSS. 
 
 C 4 before
 
 ( 24 ) 
 
 before vefhed in a defendant^ becomes tranfmit- 
 ted to another, the plaintiff is intitled to render 
 the fuit perfeft, if become defe«ftive, or to continue 
 it, if abated, againfl the perfon to whom that pro- 
 perty or right is tranfmitted. 
 
 The means of fupplying the defects of a fuit, 
 continuing it if abated, or obtaining the benefit of 
 it, are, i. by fupplemental bill ; 2. by bill of re- 
 vivor ; 3- by bill of revivor and fupplement j 4. by 
 original bill in the nature of a bill of revivor ; and 
 t;. by original bill in the nature of a fupplemental 
 bill. The dillin£lions between the cafes in which 
 a fuit maybe added to, or continued, or the benefit 
 of it obtained, by thefe feveral means, feem to be 
 the following. 
 
 I. When any event happens fubfequent to the 
 time of filing an original bili ^, which gives a new 
 intereft in the matter in difpute to any perfon not a 
 party to the bill, as the birth of a tenant in tail ; 
 or a new intereft to a party, as the happening of 
 fome other contingency ; or occafions fome change 
 of intereft, as an aflignment of a mortgage ; or, 
 in fine, anyevent, which makes an alteration with 
 refpe6l to any of the claims of any part; to the fuit, 
 and does not occafion an abatement ; the defeiSl in 
 the proceedings may be fupplied by a fupplemental 
 bill m.erely ". And if by any event the whole iu- 
 
 p I Atkyns, 291. 3 At- fertion. See Com. Rep, 589. 
 kyns, a '7. But this apparent contradic- 
 
 i There are c^{c\, wiiich tion is perhaps rather in 
 feem to tonfr..diit this al- woidi. than n\ fubftance. 
 
 tcrci^
 
 ( 25 ) 
 
 tereu of a defendant in the matter in litigation is 
 utterly at an end, but the fame interefl is become 
 veiled in another perfon not claiming under the 
 former party, whether the fuit is by this event be- 
 come defeftive merely, or abated as well as become 
 defedlive, it may be rendered perfecl:, and conti- 
 nued, by fupplemental bill, ihewing the manner in 
 wliich the property has changed from the one to 
 the other. If the interefl of -a. plalnttff fning In atiter 
 droit entirely determines by death, or otherwife, 
 and fome other perfon thereupon becomes intitled to 
 the fame property, under the fame title ; as in the 
 cafe of new alFignees under a commiffion of bank- 
 rupt, upon the death, or removal, of former af- 
 fignees ^ \ or in the cafe of an executor, or adminl- 
 ilrator, upon the determination of an adminiftration 
 durante niinori atate % or, pendente lite^ the fuit may be 
 likewife added to, and continued, by fupplemental 
 bill '. In all thefe cafes if the fuit has become abated, 
 as well as defedlive, the bill is commonly termed a 
 fupplemental bill in the nature of a bill of revivor, 
 as it has the efFe£l of a bill of revivor in continuing 
 the fuit. 
 
 Sometimes a fupplemental bill becomes neceflary, 
 in confequence of a defe£l in the original bill, or 
 in fome part of the proceedings, and not in confe- 
 
 ' I Atkyns, 88, Sg- 3 At- miniftration determined by 
 
 ky lis, 218. deatli, a bill of revivor by a 
 
 * Free, in Ch. 175. Car. fubfequent adminiftrator has 
 
 Rep- **• been admitted. aVern. 237. 
 
 f In the cafe of an ad- a Eq. Ca. Ab. 3, 4. 
 
 quence
 
 ( 26 ) 
 
 quence of any event which has occafioned any 
 change of intereft in the fubje£l matter of the fuit. 
 This happens generally after a decree ; and the bill 
 may be in aid of the decree, that it may be carried 
 fully into execution, or that proper directions may 
 be given upon fome matter omitted in the original 
 bill % or not put in illue by it, or by the defence 
 made to it " ; or to bring formal parties before the 
 court *'. Or it may be ufed as a ground to impeach 
 the decree, which is the peculiar cafe of a fupple- 
 mental bill in the nature of a bill of review, of 
 which it will be neceffary to treat more at large in 
 another place. A fupplemental bill may likewife be 
 brought to obtain a farther difcovery "^ from a de- 
 fendant, where the proceedings are in fuch a ftate 
 that the original bill cannot be amended for that 
 purpofe a. 
 
 2. Wherever a fuit abates by death, and the in- 
 tereft of the perfon whofe death has cauled the 
 abatement is tranfmitted to that rcprefentative which 
 the law gives or afcertains, as an heir at law, exe- 
 cutor, or adminiftrator ; fo that the title cannot be 
 difputed, at leaft in the court of chancery, but the 
 perfon in whom the title is vefted is alone to be 
 afcertained j the fuit may be continued by bill of 
 revivor merely. If a fuit abates by marriage of a 
 female plaintilF, and no a6l is done to all"e6l the 
 
 " 3 Atkyns, 133. "^ a Ch. Rep. t4«. 
 
 • 3 Atkyns, no, 33 Atkyns, 370 
 
 ' 3 Atkyns, 217. 
 
 rights
 
 ( 27 ) 
 
 righto of the party but the marriage, no title can 
 be difputed ; the perfon of the hufband is the fole 
 fa£l to be afcertained, and therefore the fuit maybe 
 continued in this cafe, likewife, by bill of revivor 
 merelj^ 
 
 3. But if by any a<5l befides the marriage, as a 
 fettlement, the rights of the parties are afFefted, 
 though a bill of revivor merely may continue the 
 fuit, fo as to enable the parties to profecute it, yet 
 to bring before the court the whole matter neceffary 
 for its confidcration, the parties muft, by fupple- 
 mental bill, added to, and made part of their bill 
 of revivor, fliew the fettlement, or other aft, by 
 which their rights are afFedled. And in the fame 
 manner, if any other event which occafions an 
 abatement, is accompanied, or followed, by any 
 matter which becomes neceffary to be ftated to the 
 court to fhew the rights of the parties, or to obtain 
 the full benefit of the fuit, beyond what is merely 
 neceffary to fhew by or againft whom the caufe is 
 to be revived, that matter muft be fet forth byway 
 of fupplemental bill added to the bill of revivor. 
 
 4. If the death of a party whofe intereft is not 
 determined by his death, is attended with fuch a 
 tranfmiffion of his intereft, that the title, as well as 
 the perfon intitled, may be litigated in this court ; 
 as in the cafe of a devife of a real eftate '' 5 the fuit 
 is not permitted to be continued by a bill of revivor. 
 
 *> 1 Ch. Ca. 123. 174. 3 Ch.Rep. 39. Mofely, 44, 
 
 An
 
 ( 28 ) 
 
 Ar original bill, upon which the title may be liti- 
 gated % muft be filed j and this bill will have fo 
 far the efFe£l of a bill of revivor, that if the title of 
 the reprefentative fubftituted by the aft of the de- 
 ceafed party is proved, or admitted by the perfons 
 having right to contcft it, the fame benefit may be 
 had of the proceedings upon the former bill, as if 
 the fuit had been continued by a bill of revivor ^. 
 Where a fuit became abated after a decree figned 
 and inrolled, it was anciently the praftice to revive 
 the decree by a fubpcena in the nature of a ftire 
 facias \ but if there had been any proceedings fub- 
 fequcnt to the decree, this procefs was inefFecfual % 
 and it is now become the praftice, in all cafes, to 
 revive by bill. 
 
 ij. If the intereft of a plaintiff or defendant, fuing 
 or defending in his ow^n right, wholly determines, 
 and the fame property becomes vefied in another 
 perfon not claiming under him ; as in the cafe of an 
 ecclefiaftical perfon fucceeding to a benefice, or a 
 remainder-man in a fcttlement becoming intitled 
 upon the death of a prior tenant under the fame 
 fettlcment '^; the fait cannot be continued by bill of 
 revivor, or its dcfetls fupplicd by a fupplemental 
 bill. For though the fucccflbr in the lull cafe, and 
 
 «: I Eq Ca. Ab. 2 Marg. « 2 Cli. Rep 67. 2 Eq. Ca. 
 2 Freem. 132. Ab. 180. 
 
 •" I Vtrn. 417. 2 Vcrn. ' ^ Kq. Ca, Ab. 3. z 
 548. 672. 2 Brown. Pail. liiown. i'ail. Ca. 320. 454, 
 Ca. 513. J ii.q. Ca. Ab. 83. 455., 
 
 tJie
 
 ( 29 ) 
 
 the remainder-mail in the fecond, have the Lxmc 
 property which the prcdeccflbr, or prior tenant, 
 enjoyed ; yet they are not in many cafes bound by 
 his acfts, nor have they in feme cafes precifely the 
 fame rights. But, in general, by an original bill, in 
 the nature of a fupplemental bill, the benefit of the 
 former proceedings may be obtained. If the party 
 whofe interelt is thus determined was not the fole 
 plaintiff, or defendant ; or if the property, which 
 occafions a bill of this nature, alTefts only a part of 
 the fuit, the bill, as to the other parties, and the 
 reft of the fuit, is fupplemental merely. — There 
 feems to be this difference between an original bill 
 in the nature of a bill of revivor, and an original 
 bill in the nature of a fupplemental bill. Upon the 
 firft, the benefit of the former proceedings is abfo- 
 lutely obtained, fo that the pleadings in the firfl: 
 caufe, and the depofitions of witnefTes, if any have 
 been taken, may be uled in the fame manner as if 
 filed or taken in the fecond caufe ^ j and if any de- 
 cree has been made in the firft caufe, the fame 
 decree fhall be made in the fecond ^. But in the 
 other cafe, a new defence may be made ; the plead- 
 ings and depofitions cannot be ufed in the fame 
 manner; as if filed or taken in the fame caufe •, and 
 the decree, if any has been obtained, is no other- 
 wife of advantage, than as it may be an inducement 
 to the court to make a fimilar decree. 
 
 Having confidered generally the diftindtions be- 
 tween the feveral fpecies of bills, by which a fuit, 
 
 f I Atk. 89. « 2 Vern. 54.8. 67a, 1 Eq. Ca. Ab. 83. 
 
 become
 
 ( 30 ) 
 
 become defeclive, or abated, maybe added to, or con- 
 tinued, or the benefit of it obtained j it wall remain 
 in this place to confider more particularly the frame 
 of the three firft of thofe fpecies of bills. The 
 other two will form part of the fubject to be confi- 
 dered under the next head. 
 
 I. A fupplemental bill mull fhate the original bill, 
 and the proceedings thereon ; and if the fupple- 
 mental bill is occafioned by any event fubfequent 
 to the original bill, it muft- (late that event, and 
 the confequent alteration with refpe^ to the par- 
 ties ; and, in general, the fupplemental bill muft 
 pray, that all the defendants may appear and anfwer 
 to the charges it contains. For the caufe muft be 
 heard. upon the fupplemental bill at the fame time 
 that it comes on to be heard upon the original bill, 
 if it has not been before heard j and if the caufe has 
 been before heard, it muft in general, If not always, 
 be farther heard upon the fupplemental matter *'. 
 If indeed the alteration or acquifition of intereft 
 happens to a defendant, or a perfon neceflary to be 
 made a defendant, the fupplemental bill maybe ex- 
 hibited againft iuch perfon alone, and may pray a 
 decree upon the particular fupplemental matter al- 
 ledged againft that perfon only ' j unlefs, whicli is 
 frequently the cafe, the interefts of the other de- 
 fendants may be aff'c(!n:ed by that decree. Where 
 a fupplemental bill is merely for the puipofe of 
 
 ' jAtkyiis, ii;. ■ 3 Atkyns, 217. 
 
 bringing
 
 ( 31 ) 
 bringing formal parties before the court, the parties 
 to the original bill need not be made parties to the 
 fupple mental ''. 
 
 2. A bill of revivor muft flate the original bill, 
 and the feveral proceedings thereon, and the abate- 
 ment ; it muil fliew a title to revive ', and charge 
 that the caufe ought to be revived, and (land in 
 the fame condition, with refpeft to the parties in 
 the bill of revivor, as it was in with refpedl to the 
 parties to the original bill at the time the abatement 
 happened ; and it mufl pray that the fuit may be 
 revived accordingly. It may be likewife neceflary 
 to pray, that the defendant may anfwer the bill of 
 revivor ; as in the cafe of a requifite admiffion of 
 aflets ™. And if a defendant to an original bill 
 dies before putting in an anfwer, the bill of revivor, 
 though requiring in itfelf no anfwer, muft yet pray, 
 that the perfon againft whom it feeks to revive the 
 fuit may anfwer the original bill. 
 
 Upon a bill to revi\'e only, the defendants muft 
 anfwer in eight days after appearance, and fubmit 
 that the fuit ftiall be revived, or fliew caufe to the 
 contrary ; and in default the fuit may be revived 
 without anfwer, by an order made upon motion as 
 a matter of courfe. The ground for this is an alle- 
 gation, that the time allowed the defendants to an- 
 fwer by the courfe of the court is expired, and that 
 no anfwer is put in : it is therefore prefumed that 
 
 " 3 Atkyns, aiy. «> Prac, Reg. 45. 
 
 ' Cora. Rep, 590, 
 
 the
 
 { 32 ) 
 the defendant can fliew no caufe againfl reviving 
 the fuit in the manner prayed by the bill. 
 
 After a decree a defendant may file a bill of re* 
 vivor, if the plaintiffs, or thofe in their right, ne- 
 gledl to do it ". For then the rights of the parties 
 are afcertained, and plaintiffs and defendants are 
 equally intitled to the benefit of the decree, and 
 equally have a right to profecute it *>. The bill of 
 revivor in this cafe, therefore, merely fubftantiates 
 the fuit, and brings before the court the parties ne- 
 ceffary to fee to the execution of the decree, and to 
 be the objects of its operations, rather than to liti- 
 gate the claims made by the feveral parties in the 
 original pleadings ''. In the cafe of a bill by cre- 
 ditors on behalf of themfelves and other creditors, 
 any creditor is intitled to revive ''. A fuit, become 
 entirely abated, may be revived as to part only of 
 the matter in litigation, or may be revived as to 
 part by one bill, and as to other part by another. 
 As if the rights of a plaintiff in a fuit upon his 
 death become vefled, part in his real, and part in 
 his perfonal reprefentatives j the real reprefentative 
 may revive the fuit, fo far as concerns his title, 
 and the perfonal, fo far as his demand extends ^ 
 
 3. A bill of revivor and fupplement is merely a 
 compound of thofe two fnecies of bills, and in its 
 feparatc parts mufl be framed and proceeded upon 
 in the fame manner. 
 
 " Prec. in Ch. 197. i Eq. " i Eq. Ca. Ab. 2. Finch 
 
 Ca. Ab. 2. V. Lord WinclieKea. 
 o See, however, 3 Atkyns, ') i Kq. Ca. Ab. 3. 
 (91, '■ 1 liq. Ca. Ab. 3, 4. 
 
 III. Bills
 
 ( 33 ) 
 
 til. Bills in the nature of original bills, though 
 occafioned by former bills, are of eight kinds. 
 I. Crofs bills. 2. Bills of review, to examine and 
 reverfe decrees figned ^nd inrolled. 3. Bills in the 
 nature of bills of review, to examine and reverfe 
 decrees, either figned and inrolled, or not, brought 
 by perfons not bound by the decree. 4. Bills im- 
 peaching decrees upon the ground of fraud. 5. Bills 
 to carry decrees into execution. 6. Bills in the na- 
 ture of bills of revivor. 7. Bills in the nature of 
 fupplemental bills. And 8. Bills filed by the parti- 
 cular direction of the court. 
 
 I. A crofs bill is a bill brought by a defendant 
 againft a plaintiff, or other parties in a former bill 
 depending, touching the matter in queftion in that 
 bill. A bill of this kind is ufually brought to obtain, 
 either a neceffary difcovery, or full relief to all par- 
 ties. It frequently happens, and particularly if any 
 queftion arifes between two defendants to a bill, 
 that the court cannot make a complete decree, with" 
 out a crofs bill, or crofs bills, to bring every mat- 
 ter in difpute completely before the court, litigated 
 by the proper parties, and upon proper proofs. In 
 this cafe it becomes neceflary for fome or one of the 
 defendants to the original bill, to file a bill againft 
 the plaintiff and other defendants in that bill, or 
 fome of them, and bring the litigated point properly 
 before the court. A crofs bill fhould ftate the ori- 
 ginal bill, and proceedings thereon, and the rights 
 of the party exhibiting the bill, or the ground on 
 D '.vhich
 
 ( 34 > 
 
 which he refifls the claims of the plaintiff in the 
 original bill. But a crofs bill being generally con- 
 fidered as a defence % or as a proceeding to pro- 
 cure a complete determination of a matter already 
 in litigation in the court, the plaintiff is not, at 
 leaft as againfl the plaintiff in the original bill, 
 obliged to {hew any ground of equity to fupport 
 the jurifdiflion of the court ^ 
 
 2. The objeft of a bill of review is, to procure 
 an examination and reverfal of a decree made upon 
 a former bill, and figned by the perfon holding the 
 great feal, and inrolled ". It may be brought upon 
 error of law appearing " in the body of the decree 
 itfelf ", or upon difcovery of new matter. In the 
 firft cafe the decree can only be reverfed upon the 
 ground of the apparent error ^ j as if an abfolute 
 decree be made againlt a perfon, who upon the 
 face of it appears to have been an infant ^. A 
 bill of this nature may be brought without the 
 leave of the court previoully given ''. But if it is 
 fought to reverfe a decree, figned and inrolled, 
 upon difcovery of fome new matter % the leave 
 of the court muft be firft; obtained ''. This will 
 not be granted, but upon allegation upon oath, thar 
 
 • 3 Atkyn?, 812, 231. Nclf. Rep. 86. Prac. 
 
 t Hardres, i6o- Keg. 50. 4 \ in. Ab. 414., 
 
 " Totliill, 47. Boh. Curs. « Prac. Reg. 196. 
 
 t,'anc- 355. '' 2 Atkyns, 534. 
 
 " I Ch. Ca. 54. ■= a Vefey, 576. 3 P. Wms. 
 
 » I Kcill. Ab. ^Xr. Prec.in 371. Nelf. Rep. 51. 
 
 Ch. 260. 3P. Wm«. 37J. " Tothill, 42. 
 
 » Tothill, 41. 1 Ch. Rep. 
 
 the
 
 ( 3S ) 
 the new matter difcovered could not poffibly be had, 
 or ufed, at the time when the decree was inade '- 
 If the court is fatisfied that the new matter is 
 relevant and material, and fuch as might probably 
 have occafioned a different determination *^, a bill 
 of review will be permitted to be exhibited e. If 
 upon a bill of review a decree has been reverfed, 
 another bill of review may be brought upon the 
 decree of reverfal ". But when twenty years have 
 elapfed from the time of pronouncing a decree, and 
 the decree has been figned and inrolled, a bill of 
 review cannot be brought \ In a bill of this nature 
 it is neccfPary to ftate " the former bill, and the 
 proceedings thereon ; the decree, and the point in 
 which the party exhibiting the bill of review con- 
 ceives himfelf aggrieved by it ' j and the ground of 
 law, or new matter difcovered, upon which he feeks 
 to impeach it. The bill may pray, fimply, that 
 the decree may be reviewed, and reverfed in the 
 point complained of, if it has not been carried into 
 execution. If it has been carried into execution, 
 the bill may alfo pray the farther decree of the 
 court, to put the party complaining of the former 
 decree into the fituation in M'hich he would have 
 been, if that decree had not been carried into exe- 
 
 * 2 Brown. Pari. Ca. icg. ' i Brown. Par!. Ca. 95. 
 
 Prac.Reg. 51. '' 3 Ch. Rep 45. « Prax. 
 
 ^ I Verey,432. Aim- Ciir. Cane. 510. 3, 
 
 8 I Vefey, 430. Chan. Prac. 629. 
 
 «i a Chan. Praft, 633. » 4 Vin. Ab. 414. PI. 5. 
 
 D 2 cution.
 
 ( 36 > 
 cution. If the bill is brought to review the reverfaf 
 of a former decree, it may pray that the original 
 decree may ftand *". The bill may alfo, if the ori- 
 ginal fuit has become abated, be at the fame time 
 a bill of revivor ". A fupplemental bill may likei- 
 wife be added, if any event has happened which 
 requires it ". 
 
 To render a bill of review neceflary, the decree 
 fought to be impeached muft have been figned and 
 inrolled. If, therefore, this has not been done, a 
 decree may be examined and reverfed upon a fpecies 
 of fupplemental bill, in nature of a bill of review, 
 where any new matter has been difcovered fmce the 
 decree ''. A decree not figned and inrolled, being 
 liable to be altered upon a re-hearing, and not re- 
 quiring a bill of review if there is fufficient matter 
 to reverfe it appearing upon the former proceed- 
 ings, the inveftigation of the decree muft be 
 brought on by a petition uf re-hearing '' ; and the 
 office of the fupplemental bill, in nature of a bill 
 of review, is, to fupply the defed: which occa- 
 fioned the decree upon the former bill '. It is nc- 
 ceffary to obtain the leave of the court to bring a 
 fupplemental bill of this nature '. 
 
 ^ * Chan. Prac 634. << 2 Vefey, 598. 
 
 • % Prax. Aim. Cur. Cane <■ 2 Atkyns, ijj. 
 
 S-'- ' OttXtr 17, Oft, 174T. 
 
 o 1 V::rn. 135, Rules and Orders in Ch. 
 
 K I Atkyns, 4a. t, At- 107. 2 Atkyns, 139. 3 At- 
 kyns, 811. kyns, ill. 3k Vcfey, 571. 596. 
 
 -.. If
 
 ( 37 ) 
 
 3- If a decree is made againft a perfon who had 
 }io intereft at all in the matter in difpute, or had 
 not fuch an intereft as is fufficient to render the 
 decree againft him binding upon fome perfon claim- 
 ing after him, relief may be obtained againft error 
 in the decree by a bill in the nature of a bill of 
 review. Thus if a decree is made againft a tenant 
 for life only 9 a remainder-man in tail, or in fee, 
 cannot defeat the proceedings againft the tenant 
 lor life, but by a bill, ftiewing the error in the 
 decree, the incompetency in the tenant for life to 
 fuftain the fuit, and the accruer of his own in- 
 tereft ; and thereupon praying that the proceedings 
 in the original caufe may be reviewed, and for 
 that purpofe that the other party may appear to, and 
 anfwer, this new^ bill, and that the rights of the 
 parties may be properly afcertained. A bill of this 
 nature, as it does not feek to alter a decree made 
 againft the plaintiff himfelf, or againft any perfon 
 under whom he claims, may be likd without the 
 leave of the court. 
 
 4. If a decree has been obtained by fraud, it may 
 be impeached by original bill ^ without the leave of 
 the court \ Ther-e do not appear in the books 
 many inftances of fuch a bill, in cafes of direct 
 fraud in obtaining a decree 5 but it feems to have 
 teen confidered, that where a decree has been made 
 
 t 2 P. Williams, 73. 3 P. "3 Atkyns, 811. Rep. 
 Wms. m. I Brown. Pari. Temp, Talbot, 201. 
 •Ca. 414.. 
 
 D 3 againft
 
 ( 38 ) 
 
 againft a trufl.ee, the cefl:ui que trufl not being be- 
 fore the court, and the truft not difcovered ; or 
 againft a perfon who has made fome conveyance, 
 or incumbrance, not difcovered ; or where a decree 
 has been made in favour of, or againft, an heir, 
 when the anceftor lias in fa£l difpofed by will of 
 the fubjetl matter of the fuit ; the concealment of 
 the truft, or fubfequcnt conveyance, or incum- 
 brance, or will, in thefe fcveral cafes, ought to be 
 treated as a fraud \ 
 
 5. Sometimes from the negle£l of parties, or 
 fome other caufe, it becomes impoflible to carry a 
 decree into execution, without the farther decree 
 of the court ''. This happens, generally, in cafes 
 where the parties having negledled to proceed upon 
 jhe 'decree, their rights become fo embarrafl'ed by 
 a variety of fubfequent events, that it is neceftary 
 to have the decree of the court to fettle and afcertain 
 them. Sometimes fuch a bill is exhibited by a per- 
 fon who was not a party, nor claims under any 
 party, to the original decree ; but claims in a fimi- 
 lar intereft, or is unable to obtain the determination 
 of his ov/n rights till the decree is carried into exe- 
 cution. Or it may be brought by, or againft, a 
 perfon claiming as aftignee of a party to the decree ^. 
 A bill for this purpofe is, generally, partly an ori- 
 ginal brll, and partly a bill in the nature of an 
 
 ■ I Cb-Ca. 151, 152. sCh. Vern. 409. 
 Rep, 95. » J Ch. Ca. 231. 
 
 'f 2 Ch. Rep. 128. 2 
 
 origiual
 
 ( 39 ) 
 
 original bill, though not ftriftly original. Some- 
 times it is likewife a bill of revivor, or a fupple- 
 mental bill, or both. 
 
 6. It has been already mentioned ^, that when the 
 interefl of a party dying is tranfmitted to another, 
 in fuch a manner that the tranfmiflion may be liti- 
 gated in this court ; as in the cafe of a devifee -, the 
 fuit cannot be revived by, or againft, the perfon to 
 whom the interefl is fo tranfmitted. But that fuch 
 perfon, if he fucceeds to the interefl of a plaintiff, is 
 intitled to the benefit of the former fuit j and if he - 
 fucceeds to the interefl of a defendant, the plaintiff 
 is intitled to the benefit of a former fuit againft 
 him ; and that this benefit is to be obtained by an 
 original bill in nature of a bill of revivor. A bill 
 for this purpofe mufh ftate the original bill, the pro- 
 ceedHngs upon it, the abatement, and the manner irt 
 which the interefl of the party dead has been tranf- 
 mitted i and it mufl charge the validity of the tranf- 
 mifhon, and ftate the rights which have accrued by 
 it. A bill of this nature is faid to be original, mere- 
 ly for want of that privity of title between the party 
 to the former, and the party to the latter bill, though 
 claiming the fame interefl;, as would have permitted 
 the continuance of the fuit by bill of revivor. There- 
 fore the party to the new bill fhall be equally bound 
 by, or have advantage of, the proceedings on the 
 original bill, as if there had been fuch a privity be- 
 
 m 
 a P. 27. 
 
 D 4 twccn
 
 ( 40 ) 
 
 tween him, and the party to the original bill claim-> 
 ing the fame intereft ''. 
 
 7. It has been alfo mentioned <=, that if the intereft 
 of a plaintiff, or defendant, fuing or defending in 
 his own right, wholly determines, and the fame 
 property becomes vefted in another perfon, not 
 claiming under him •, the fuit cannot be continued 
 by a bill of revix'or, or its effefls fupplied by a fup- 
 plemental bill. But that by an original bill in the 
 nature of a fupplemental bill, the benefit of the for- 
 mer proceedings may be obtained. A bill for this 
 purpofe mufl Hate the original bill, the proceedings 
 upon it, the event which has determined the in- 
 tcrcfl of the party by or againft whom the for- 
 mer bill was exhibited, and the manner in whicl^ 
 the property has veiled in the perfon become intit- 
 led. It muft then fhew the ground upon which the 
 court ought to grant the benefit of the former fuit 
 to or againfl the perfon fo become intitled ; and 
 pray the decree of the court adapted to the cafe of 
 the plaintiff in the new bill ^. This bill, though 
 partaking of the nature of a fupplemental bill, is not 
 an addition to the original bill, but another origi- 
 nal bill, which in its confeqncnces may draw to it- 
 fclf the advantage of the proceedings on the formei" 
 
 bill. 
 
 8. Upon hearing a caufc it fomctimcs appears, 
 
 b a Vcrn. 5'48. 671. Prec. c p. 28. 
 
 ^n Ch. 134.. » Brown. Par). " % Brown. Pari. Ca. 320. 
 
 Ca. 577. 
 
 th*l;
 
 ( 41 ) 
 that the fuit ah-eady inftituted is infufficient to 
 bring before the court all matters neceflary to en- 
 able it fully to decide upon the rights of all the 
 parties. This frequently happens where perfons 
 in oppofite interefts are co-defendants, fo that 
 the court cannot determine their oppofite interefts 
 upon the bill already filed, and the determination 
 of their interefts is yet neceflary to a complete 
 decree upon the fubjedl matter of the fuit. In fuch 
 a cafe, if upon hearing the caufe the difficulty ap- 
 pears, and a crofs bill has not been exhibited to re- 
 move the difficulty, the court will direft a bill to be 
 filed, in order to bring all the rights of all the par- 
 ties fully, and properly, for its decifion; and will re- 
 ferve the directions, or declarations, which it may 
 be neceflary to give, or make, touching the matter 
 not fully in litigation by the former bijl, until this 
 new bill is brought to a hearing ^ 
 
 IV. Informations in every refpeft follow the na- 
 ture of bills, except in their ftyle. When they con- 
 cern the rights of the crown, or of thofe for whom 
 it is a truftee, they are exhibited in the name of the 
 king's attorney, or follicitor-general, as the inform- 
 ant. But where a relator is named, and the rights 
 of the crown are not immediately concerned, the 
 relator in reality fuftains and dire£l:s the fuit ; and 
 fometimes having an intereft in the matter in dif- 
 pute, is at the faine time relator, and plaintiff. In 
 this cafe the pleading is ftyled an information and 
 
 e 3 Atkyns no. 
 
 bill.
 
 ( 42 ) 
 
 bill. An information concerning; the rights of the 
 queen, is exhibited alfo in the name of her attor- 
 ney-general. The proceedings upon an information 
 can only abate by the death or determination 
 of intereft of the defendant. And if there are 
 feveral relators, the death of any of them, -while 
 there fun'ives one, will not affect the fuit. But if 
 all the relators die, or if there is but one, and that 
 relator dies, the court v/ill not permit any farther 
 proceeding till an order has been obtained for liber- 
 ty to infert the name of a new relator, and fucli 
 name is inferted accordingly, Otherwife there 
 >rould be no perfon liable to pay the cofts ^ of the 
 fuit, in cafe the information fhould be deemed im- 
 proper, or for fome other rcafon fnould be dif- 
 mifled. 
 
 Many of 4^ie matters requifite to the fufficiency of 
 the feveral fpecies of bills, mull neceflarily be con- 
 sidered at the fame time, with the advantages which 
 may be taken of their infufficiencies, and will be 
 confequcntly part, of the fubject of the following 
 book. V 
 
 c 1 Vefcy, 71, 2 Vefcy, 327. 
 
 BOOK
 
 BOOK THE SECOND. 
 
 OF THE DEFENCE TO BILLS, AND 
 OF REPLICATIONS. 
 
 CHAPTER I. 
 
 Of the Defence to Bills. 
 
 EVERY bill, except a bill praying the writ of 
 certoriari to remove a caufe from an inferior 
 court of equity, requires an anfwer upon oath to 
 the feveral charges it contains. The defence to the 
 bill mull therefore be made in that manner, unlefs 
 the defendant will difclaim all right to the matters 
 in queftion by the bill, or fuch part thereof to which 
 he makes no other defence -, or unlefs he can (hew 
 fome ground upon which he can difpute the right of 
 the plaintiff to compel an anfwer to the charges in 
 the bill, or to fome of them. This may be done, 
 either by fhewing the infufhciency of the fafts al- 
 ledged in the bill to compel an anfwer, or that for 
 fome reafon apparent on the bill, or fome confe- 
 quence of law to be drawn from matter apparent on 
 the bill, the defendant ought not to be compelled to 
 anfwer •, or by fnevv^ng fome matter of faft not ap- 
 parent on the bill, by reafon of which the defend- 
 iiu; ought not to be compelled to anfwer. The firft 
 
 of
 
 ( 44 ) 
 of thcfe exceptions to a bill, arifing from matter ap- 
 parent on the face of it, is termed a demurrer j the 
 fecond exception, arifing from fome faft fhewn by 
 the defendant, is termed a plea. If no exception can 
 be fhewn, or if the exceptions go to part of the bill 
 only, the defendant muft upon oath anfwer the bill, 
 or fuch part of it to which he can fhew no excep- 
 tion to avoid the neceffity of an anfwer. 
 
 It has been repeatedly obferved that the mofl 
 ufual bills are fuch as feek the decree of the court 
 touching fome right claimed by the perfon exhibit- 
 ing the bill, in opporition to the rights claimed by 
 the perfon againft whom the bill is exhibited ; and 
 bills of this nature always feek from the defendant a 
 difcovery of the fa£ls charged. This dlfcovery the 
 defendant muft make b}'^ way of anfwer, unlefs he 
 can avail himfelf of fome exception to the bill. An 
 anfwer muft confefs and avoi<l, or traverfe and 
 deny, the material points in the bill ^5 that is, fuch 
 inatters as are neceffliry to fubftantintc the proceed- 
 ings, and make them regular and cflcOual in a court 
 of equity; and all fa£ls material to the plaintiff's 
 cafe, and to enable him to obtain a decree. This 
 ii.s required, as well to fupply proof which cannot 
 otherwife be procured, as in aid of proof which may 
 be procured, and to avoid expcnce '^. In fome par- 
 ticulars the fcvcral other kinds of bills do not re- 
 <|uire fo txtenfivc a defence, and almoft eaclj dif*- 
 
 ^ 2 Weft. Symb.Chan. J04., Z a Vezey 492. 
 
 IVatt. Itpg. 6. 
 
 tiu«5t
 
 ( 45 ) 
 
 tlncl fpecies of bills requires fome defence particu- 
 lar to itfelf. There are likewife perfons incapable by 
 themfelves of defending a fuit. In treating therefore 
 of the defence which may be made to a bill it will 
 be proper to confider, I. What perfons are capable, 
 and what perfons are incapable, by themfelves of de- 
 fending a lJ:t. II. The nature of the various modes 
 of defence ; under which head will be confidered, 
 I. demurrers, 2. pleas, 3. anfwers and difclaimers, 
 or any two or more of them, jointly, each refer- 
 ring to a feparate and diftin6l part of the bill. 
 
 CHAP. II. 
 
 Of the Perfons capablcy atid incapabUy by themfelves 
 of defending a Suit, 
 
 ALL perfons capable by themfelves of inftituting 
 a fuit, are likewife capable by themfelves of de- 
 fending one. If the intereft of the crown, or of 
 thofe for whom it is a truflee, is concerned j the 
 king's attorney-general, or, during the vacancy of 
 that office, the follicitor-general, becomes a necef- 
 fary party to defend that intereft. The queen's at- 
 torney, or follicitor-general, feems to be the party 
 neceffary to fupport her rights ^. Infants, idiots, 
 and lunatics, who are incapable by themfelves of 
 inftituting a fuit, are likewife mcapable by themfelves 
 
 •> See 2 Roll. Ab, 213. 
 
 of
 
 ( 46 } 
 
 of defending one. But married women, who cannot 
 by themfelves inftitute a fuit, may defend by thcm- 
 felves, fepajrately from their hufbands, with the leave 
 of the court. 
 
 Infants inftitute a fuit by their next friend ; but 
 to defend a fuit the court appoints them guardians, 
 who are ufually their neareft relations, not concern- 
 ed in point of intereft in the matter in queftion. 
 If a perfon is by' age, or infirmities, reduced to a 
 fecond infancy, he may alfo defend by guardian*. 
 Idiots, and lunatics, defend by their committees. 
 If a married woman claims in oppofition to any 
 claim of her hulband, or if ihe lives feparate from 
 him ■'j or difapproves the defence he wifties her to 
 make ', Ihe may obtain an order for liberty to de- 
 fend the fuit feperately from her hulbaud. 
 
 CHAP. HI. 
 
 Of the Nciture of the vdrioiis ]\Ioiks of Defence to a 
 Billf and firj} of Demurrers, 
 
 THE perfon againfl; whom the bill is exhibited, 
 being called upon to anfwer the complaint 
 made againft him, may defend himfelf, i. By de- 
 murrer, by which he demands the judgement of 
 the court whether he fliall be compelled to anfwer 
 
 ' Prcc. in Clianc. 519. Tothill, 75. 
 
 k Prcc. in Cli. 319. ' 1 Atkyns 50. 
 
 the
 
 ( 47 ) 
 
 the bill or nof". 2. By plea, whereby he fhews 
 fome caufe why the fuit Ihould be difmifTed, delay- 
 ed, or barred". 3. By anfwer, which confefles and 
 avoids, or traverfes and denies, the feveral parts of 
 the bill °. 4. By difclaimer, which at once termi- 
 nates the fuit, the defendant difclaiming all right 
 in the matter fought by the bill p. 5. By demurrer, 
 plea, anfwer, and difclaimer, or by any two or 
 more of them, each of which #muft relate to fepe- 
 rate and diftin^l parts of the bill. 
 
 A defendant may take advantage of many defefls 
 in a bill, if they are evident upon the face of it, by 
 way of demurrer. Many, therefore of the requi- 
 fites to the fufficiency of the different kinds of bills 
 will neceffarily be confidered at the fame time with 
 the various caufes of demurrer. 
 
 A demurrer Is an allegation of a defendant, which, 
 admitting the matters of fa£l "j, or fome of them, 
 alledged by the bill, to be true, fhews, as they are 
 therein fet forth, they are infufficient for the plain- 
 tiff to proceed upon, or to oblige the defendant to 
 anfwer "■ ; or that for fome reafon apparent on the 
 face of the bill, or becaufe of fome omifEon there- 
 in, or of the want of fome circumftance which 
 ought to be attendant thereon, the defendant ought 
 
 ™ Prac. Reg, 131. q A demurrer confefTes 
 
 " Prac. Reg. 273. matter of fatil only, and not 
 
 c z Weft. Symb.Chan. 194, matter of law.Ld. Rayin. 18, 
 
 Prac. Reg-. 6, r Prac. Keg. i ji. 
 
 p Prac. Reg. 141. 
 
 not
 
 ( 4S ) 
 
 not to be compelled to anfwer. It therefore de- 
 mands the judgement of the court whether the de- 
 fendant Ihall be compelled to make anfwer to the 
 plaintiff's bill, or to fome certain part thereof'. 
 The caufes of demurrer are merely upon matter in 
 the bill % or upon the omlfTion of matter which by 
 the rules of the court ought to be therein, or attend- 
 ant thereon ; and not upon any foreign matter al- 
 ledged by the defendant. The principal ends of a 
 demurrer are, to avoid a difcovery which may be pre- 
 judicial to a defendant, to cover a defedlive title, 
 or to prevent unneceflary expence. If no one of 
 thefe ends is obtained, there is little ufe in a de- 
 murrer. For, in general, if a demurrer would hold 
 to a bill, though the defendant anfwers, the court 
 will not grant relief upon hearing the caufe. There 
 are, however, cafes in which the court will grant 
 relief upon hearing, though a demurrer to the relief 
 would have been allowed ". Thefe are principally, 
 where the defendant having fubmitted to anfwer, 
 and the caufe having proceeded regularly to a hear- 
 ing, no expence would be avoided by difmifling 
 the bill. But the cafes arc rare. 
 
 The moft ufual bills, as has been already obferved, 
 are fuch as feek the decree of the court touching 
 fome right claimed by the plaintiff, in oppofitionto 
 feme right claimed by tlic defendant. The defence 
 
 s 3 P, Wras. 80. Prir.Rrt',. « Piac Reg. 131. 
 
 132. " 3 P- Wins. 1^0, 
 
 to
 
 ( 49 ) 
 io a bill of this nature is confequently, likewife^ 
 mofl ufual, and is alfo in general the moft extenfive. 
 J n treating, therefore, of demurrers with reference 
 to this fpecies of bills, the nature of demurrers in 
 general muft neceffarily be confidered. Mere bills 
 of difcovery differ little from the firft fpecies of 
 bills, except that they pray no relief; for every bill^ 
 except a certiorari bill, is in faO: a bill of difcovery. 
 The nature of demurrers in general, and the prin- 
 cipal caufes of demurrer, may therefore be confi- 
 dered with reference only to the firft fpecies of bills, 
 and to bills for difcovery merely. The peculiar di- 
 ftin6l caufes of demurrer, incident to the feveral other 
 kinds of bills, may be afterwards taken notice of. 
 
 Demurrers to the firft fpecies of bills are fome- 
 times both to the difcovery fought and to the re- 
 lief prayed by the bill, or to part of the difcovery 
 and relief ; fometimes to the relief only, or part of 
 the relief; and fometimes to the difcovery only, or 
 part of the difcovery. Sometimes alfo a demurrer 
 is an advantage taken of fome flip, inaccuracy, or 
 miftake, in the bill. The feversl caufes of demurerr to 
 the firft fpecies of bills may therefore be confidered 
 Tinder the following heads, i. Demurrers to the 
 relief prayed by a bill, which frequently include 
 a demurrer to the difcovery fought. 2. Demurrers 
 to the difcovery only, or part of the difcovery, which 
 fometimes confequentially afFeil the relief. 3. De- 
 murrers upon fome flip, inaccuracy, or miftake, in 
 a bill. Under fome of thefe heads many of the 
 £ caufes
 
 ( 5° ) 
 Caufes of demurrer to bills of difcovery merely wili 
 necefiarily be treated of ; and under a fourth head 
 may be confidered the peculiar caufes of demurrer 
 to that fpecies of bills. 
 
 I. The caufes of demurrer to the relief fought by 
 a bill, which will generally include a demurrer to 
 the difcovery, are principally thefe>. i. That 
 the plaintiff is incapable a/one of inftituting a fuit. 
 2. The want of proper parties to the fuit. 3. The 
 want of privity between the plaintiff and defendant. 
 4. The want of proper title in the plaintiff to the 
 thing demanded. 5. That the plaintiff ihews an 
 unlawful claim. 6, The want of equity in the 
 plaintiff's cafe, apparent on the bill. 7. That the 
 plaintiff hath full remedy at law. 8. That the 
 plaintiff hath full remedy in the ecclefialtical court. 
 9. That the relief prayed by the bill is againfl; a 
 proceeding at law upon a criminal profecution, or 
 upon a mandatory writ. 10. That the plaintifF 
 ought to have eflabliflied his riglit at law before 
 he filed his bill. 11. That the plaintifF demands 
 things of feveral natures againfl feveral defendants 
 by the fame bill. 12. That the bill is brought 
 for part of a matter only. 13. That the plaintiff 
 fliews no claim of intereft in the defendant in the 
 thing demanded by the bill. 14. That the bill 
 
 y It is f lid a defendant may but it is mofl: ufiial to apply 
 demur to a bill, if it appears to the coui t that the bill may 
 upon the face of it to be be difmifled. Mofciy 47. 356. 
 feroujjhtforavery I'mulirum; Bunbury 17. 
 
 {hews
 
 ( 51 ) 
 
 fhews no ground to charge the defendant with the 
 plaintiff's demand. 
 
 1. If an infant, or a married woman, an idiot, or 
 a lunatic, exhibiting a bill, appear upon the face of 
 it to be thus incapable of inftltuting a fuit aloniy 
 and no next friend or committee is named in the 
 bill, the defendant may demur. But if the incapa- 
 city does not appear upon the face of the bill, the 
 defendant cannot take advantage of it by way of de- 
 murrer. This advantage may be taken as well in 
 the cafe of a bill for a difcovery merely, as in the 
 cafe of a bill for relief. For the defendant in a bill 
 for a difcovery merely, being always intitled to cofts 
 after a full anfwer as a matter of courfe, would be 
 materially injured, by being compelled to anfwer a 
 bill exhibited by perfons, whofe property is not in 
 their own difpofal, and who are therefore incapable 
 of paying the cofts. 
 
 2. All perfons materially interefted in the matter 
 in difpute ought to be parties to the fuit, plaintiffs, 
 or defendants, however numerous they may be, 
 fo that a complete decree may be made between 
 thofe parties. In fome cafes % as in the inftance 
 of creditors, feeking an account of a real and per- 
 fonal eftate for payment of their demands, a few, 
 fuing on behalf of the reft, may fubftantiate the 
 fuit ^ ', and the other creditors may come in under 
 
 » Pfcc. in Ch. 591, Gilb. 230. ' a Vezey 31a. sij. 
 
 E 2 the
 
 ( 52 ) 
 
 the decree. But if a hufband fucs alone, for a le- 
 gacy given to his wife " ; if one joint-tenant fues 
 without the other •*•, if a bill be brought againft the 
 heir only, where the perfonal eflate is firfi: liable to 
 aniwer the plaintiff's demand ^ ; and in many other 
 cafes '^ J the want of proper parties is a good caufe 
 of demurrer. In fome cafes, however, -where all 
 the perfons interelled are not made parties, yet if 
 there is fuch a privity between the plaintiffs and 
 defendants, that a complete decree may be made, 
 the want of parties Hiall not be a caufe of demurrer. 
 As if a bill is brought by a lord of a manor againft 
 fome of the tenants, or by fome of the tenants 
 againft the lord, upon a queftion of common ; or 
 bya parfon for tithes againft fome of the parifhioners; 
 or by fome of the parifliioners againft the parfon, to 
 eftablifh a general modus ^. And if a fufhcient rea- 
 fon for not bringing a necefTary party before the 
 court is fuggefted by the bill ; as if the party is re- 
 fident out of the jurifdidion of the court, and that 
 fadl is charged ^ -, or if a perfonal reprefentative is 
 a necefTary party, and the reprefentation is charged 
 
 « I CI). Ca. 4.1. Nelf. Rep. note (I.) i Atkyns, 190. 
 
 78. Nelf. Rep. 93.1 Eq. Ca. Ab. 
 
 " Rep. Temp. Finch, ii. 72. 2 Eq. Ca. Ab. 165. 
 
 ' 3 P. Wins. 331. a At- « , Atkyns, 283, Contr- 
 
 kyns, 51. 2 Eq. Ca. Ab. 170. 
 
 ' Rep. Temp. Fincli, 4. " Prec. in Ch. 83. 2 At- 
 
 113. 202. 3 1^. Wnis. 311. kyns, 5 10. 
 
 to
 
 ( 53 ) 
 to be In litigation in the ecclefiaftical court h; a de- 
 murrer will not hold. So, too, if the bill feeks a 
 difcovery of the parties intercfted in the matter in 
 queftion, a demurrer, for want of the neceflary 
 parties, will not hold '. 
 
 A demurrer for want of parties m.uft fliew, who 
 are the proper parties : not indeed by name, for 
 that might be impofiible ; but in fuch manner, as to 
 point out to the plaintiff the objedion to his bill, 
 and enable him to amend, by adding the proper par- 
 ties. In the cafe of a demurrer for want of parties, 
 the court has permitted the plaintiff to amend, when 
 the demurrer has been held good upon argument . 
 
 3. A demurrer may be'to a bill, for want of pri- 
 vity between the plaintiff and defendant- But a 
 principal has a right to a difcovery of his agent's 
 tranfaftions ; and therefore if a faftor is employed 
 to fell the goods of a merchant, the m.erchant may 
 file a bill againft the perfons to whom the goods 
 have been fold, for an account, and to be paid the 
 money for which the goods have been fold, if it is 
 not already paid to the fa£lor ; and a demurrer to 
 fuch a bill has been over-ruled K 
 
 4. A demurrer may alfo be for want of proper 
 title in the plaintiff to the thing demanded "' : as 
 where perfons, who had obtained letters of adminif- 
 tration in a foreign court, fought an account of 
 
 hzAtkyns, 51. ' 2 Atkyns, 394.. 
 
 ' I Verii. 95. '" I Vern- 39. 
 
 •'' 2 Ch. Ca. 197. 
 
 E 3 per-
 
 ( 54 ) 
 perfonal eftate " ; or where a proteftant next of kin 
 claimed a rent-charge, fettled on a papift upon her 
 marriageo. In the firft cafe the plaintiffs did not fhew 
 a complete title j for though they might have a right 
 to adminiftration in the proper ecclefiaftical court in 
 England, they did not fhew that they had obtained 
 it. In the fecond cafe the plaintiff had evidently no 
 right j for the papift was then incapable of taking by 
 purchafe, and therefore the grant of the rent-charge 
 was utterly void. So if a plaintiff claims under a 
 will, and it is apparent upon the conftruftion of the 
 will that he has no title, the defendant may demur ''. 
 But if upon arguing the demurrer the court is not 
 fatisfied, and is defirous the matter Ihould come 
 jnore fully to be debated at a deliberate hearing, 
 the demurrer may be over-ruled, without prejudice 
 to the defendant's infilling on the fame matter by 
 way of anfwer ''. 
 
 If the bill does not fhew in the plaintiff a title in 
 the thing demanded, he has as little right to a dif- 
 covery, as to relief. Thus if a bill is brought to 
 difcover a will, and the plaintiff does not intitle 
 himfelf as devifee, or heir, or otherwife ' -, or if a bill 
 is brought for difcoveryof a perfonal eftate, and the 
 plaintiff does not intitle himfelf as executor, or admi-, 
 niftrator, or otherwife'; a demurrer will hold. The 
 
 ■ 5 P. Wms. 371. 9 2 Vezey, 447. 
 
 e z Atkyns, aio. ' Rep. Temp. Fincli, 36. 
 
 p I Vezcy, 247. Prcc. in « Rep. Temp Finch, 44. 
 Ch. 589. 
 
 cafe
 
 ( 55 ) 
 eafc is the fame if a bill is brought by a perfon having 
 title, but not a perfeft title ; as by an executor, who 
 does not appear by the bill to have proved the will 
 of his teftator^ or who appears to have proved it 
 in an improper" or infufficient " court. But if the 
 plaintiff {hews a complete title, though a litigated 
 one, or one that may be litigated ; as that of an admi- 
 niftrator, where a fuit is depending to revoke the ad- 
 miniftration*^; or of an adminiftrator where there may 
 be another perfonal reprefentative'; he has the fame 
 right to a difcovery, as if his title to the thing in 
 demand was not litigated, or doubtful. For in the 
 firfl cafe, till the litigation is determined his title is 
 good j and in the fecond cafe, the court will not con- 
 fider the ecclefiaftical court as having done wrong. It 
 has been determined too, that where no will has been 
 proved, nor adminiflration granted, but the matter 
 is pending in the ecclefiaftical court, a demurrer of 
 one of the parties pofiefled of the perfonal eftate, 
 to a bill for an account filed by the other party, 
 fhall be over-ruled : for the ecclefiaftical court has 
 no means of fecuring the effe£ls while the fuit 
 there is depending \ But if a plaintiff has merely 
 a probability of future title, upon an event which 
 
 t I P. Wms. 752. z 3 p. Wms. 370. 
 
 " 3 P. Wms, 371. » 1 Atkyns, z86. And fee 
 
 '' I P. Wms, 766. 2 Bfowji Pari. Ca. 476. 
 y I Vein. 106. 
 
 E 4 may
 
 ( 5^ ) 
 
 may never happen, a demurrer for want of title will 
 hold =. 
 
 5. If the claim of the plaintiff is of a matter in 
 itfelf unlawful ; as of money pi-omifed to a counfel- 
 lor at law for advice and pains in carrying on a 
 fuit "^ J or of money bequeathed by a will to purr 
 chafe a dukedom = ; the defendant may demur to the 
 bill. This is equally a ground of demurrer to a 
 bill for a difcovery merely, as to a bill for relief. 
 
 6. A want of equity in the plaintiff's cafe appa- 
 rent on the bill is a fufficient ground for a demur- 
 rer ^ Upon the fame ground, if a bill is brought 
 for difcovery of deeds, or writings, fuggefling that 
 they are in the cuftody or power of the defendant, 
 or loft, and any other relief is prayed than the de- 
 livery of the deeds, or writings, a demurrer will 
 hold ; except the plaintiff annexes to his bill an affi- 
 davit that the deeds or writings are not in his cuf- 
 tody or power, and that he knows not where they 
 are, unlefs they are in the hands of the defendant. 
 For fuch a bill does, by confequence, feek to transfer 
 the jurifdiclion from the common law to the court 
 of equity s. But if the bill is brought only for dif- 
 covery, and delivery of the deeds, fuch an affidavit 
 is not neceffary ''. Or if a bill is brought for difco- 
 
 c 1 Vern. 105. 1 Eq. Ca. f i Vein. 210, 2u. 2 Ve- 
 
 Ab. a3(}.. Smith V. Attorney zey, 571. 
 
 Ueneral, Michaelmas 1777. « 2 P. Wit\s. 541, 
 
 •I Rep. Temp. Finch, 75. " i Vein. 180. 2 P. Wms. 
 
 t , Vern. 5. 541. Nelf. Rep. 78.
 
 ( 57 ) 
 
 very of a cancelled deed, and to have another deed 
 executed ; for if the plaintiff has the cancelled deed 
 in his hands, he can make no ufe of it at law^ 
 
 7. A demurrer to the relief pra3'"ed by a billj for 
 that the plaintiff hath remedy at law, will only hold 
 where the plaintiff can have as effe£l:ual and com- 
 plete remedy at law, as in equity. Upon this ground 
 a demurrer to a bill for recovery of an ancient filver 
 altar, claimed by the plaintiff as treafure^trove 
 within his manor, was over-ruled. For though the 
 plaintiff might recover at law the value in an a6lioa 
 of trover, or the thing itfelf, if it could be found, 
 in an aftion of detinue ; yet as the defendant might 
 deface it, and thereby depreciate the value, it was 
 held that the defe6l of the law in that particular 
 ought to be fupplied in equity ". And although the 
 plaintiff may have remedy at law, yet if it is charged 
 by the bill that any evidence of the plaintiff's de- 
 mand is in the defendant's cuftody, or is loll, the 
 defendant muff anfwer. To fuch bill, however, if 
 it feeks relief, the plaintiff muft annex an affidavit 
 that he has not the evidence of the demand in his 
 own cuftody, or power, or the want of the affidavit 
 will be a fufficient caufe of demurrer. And if there 
 is no charge in the bill that the evidence of the de- 
 mand is not in the plaintiff's cuftody, or power, the 
 demurrer ought to alledge that there is no fuch 
 charge in the bill '. But wherever the remedy at 
 
 I Mofely, igz. "^ 3 P. Wnis. 390. 1 3 P. Wins. 395. 
 
 law
 
 ( 58 ) 
 law is clear, aftd certain % the court will always al- 
 low a demurrer. A defendant, having demurred to 
 a bill for that the plaintiiF had full remedy at 
 law, will not be debarred of relief in equity upon 
 another bill, if the plaintiff in the firft bill (hould 
 proceed at law, and recover ". 
 
 8. If a bill is brought for difcovery, and relief, 
 in a matter properly cognizable in the ecclefiaftical 
 court, a demurrer will be allowed to the relief; 
 and likewife to the difcovery, if the ecclefiaftical 
 court is capable of obtaining the difcovery". As 
 in cafe a bill is brought to be relieved againft a 
 church rate, and to compel a difcovery of the va- 
 lue of the refpedlive real and perfonal eftates of the 
 inhabitants of the parifhes in which the rate was 
 afTefred, and of the application of the money col- 
 Jeaed P. 
 
 9. If a bill is brought for relief againft a proceed- 
 ing at law upon a criminal profecution, or a manda- 
 tory writ ; as an indiftment, an information, a writ 
 of prohibition, a mandamus, or any writ that is 
 mandatory, and not remedial ; the defendant may 
 demur. For the court has no jurifdiflion '^, and this 
 being apparent on the face of the bill, the defend- 
 ant may take advantage of it by demurrer. And 
 though a bill of difcovery lies in aid of proceedings 
 in fome fuits relating to a civil right in a court of 
 
 "1 3 Atkyns, 740, See 3 205.451. 
 Brown. I'arl. ca. 525. p 1 Atkyns, 288, 
 
 n 3 P. Wms. 397. " z Vezcy, 398. 
 
 " I Atkyrs, 2S8, aVcrey, 
 
 com-
 
 ( 59 ) 
 
 common law, as an a(ftion ; yet fuch a bill will not 
 lie to aid the profecution of an incii£lment, or in- 
 formation, or to aid the defence of either'. 
 
 10. Where one general legal right is claimed 
 againft feveral diftiniSl perfons, a bill maybe brought 
 to eftablifh that right '. But in mod cafes the plain- 
 tiff ought firft to eftablifh his right at lawt. If the 
 right has not the fandlion of a long pofTefTion, and 
 the plaintiff has any means of trying the matter at 
 law, a demurrer, for that the plaintiff ought to have 
 eftablifhed the right at law before he brought his 
 bill, will hold ". But if the plaintiff has not been 
 actually interrupted, or difpofl'efled, he may bring 
 a bill to examine his witnefTes in perpetuam re'i memo- 
 riatn, and to eftablifli his right, though he has not 
 recovered in affirmance of it at law ; and in fuch 
 a cafe a demurrer has been over-ruled \ However, 
 as bills of this nature are merely received to prevent 
 multiplicity of fuits, by determining the rights upon 
 iffues directed by the court, inftead of putting the 
 plaintiff to fue a number of perfons feparately at 
 law, where each fuit would only determine the pe- 
 culiar right in (jueftion between the plaintiff and 
 defendant, there is no pretence for fuch a bill where 
 a right is difputed between two perfons only, until 
 the ri^ht has been tried at law y. 
 
 I 2 Vezey, 398. 
 
 " 1 Atkyns, 284. 
 
 Prec in 
 
 s z Atkyns, 484. 
 
 Ch. 531. 
 
 
 t I Atkyns, 284. 
 
 y 2 Atkyns, 484. 
 
 Prec. in 
 
 u 2 Atkyns, 391. 
 
 Ch. 161. 
 
 
 II. The
 
 ( 6o ) 
 
 II. The court will not permit a plaintiff to de- 
 mand, by one bill, feveral matters of different na- 
 tures againft feveral defendants ; for this would 
 tend to load each defendant with an unneceffary 
 burthen of cofts, by fwelling the pleadings with 
 the ftate of the feveral claims of the other defend- 
 ants, with which he has no connection. A demur- 
 rer, therefore, for that the plaintiff demands feve- 
 lal matters, of different natures, of feveral defend- 
 ants, by the fame bill, will hold ^. But as the 
 defendants may combine together to defraud the 
 plaintiff of his rights, and fuch a combination is 
 ;:ilways charged by a bill, the defendant mufl fo far 
 anfwer the bill as to deny combination ^ In this, 
 however, the defendant muft be cautious ; for if 
 the anfwer goes farther than merely to deny com- 
 bination, it will over-rule the demurrer ''. A de- 
 murrer of this kind will only hold where the 
 plaintiff claims feveral matters of different na- 
 tures; for when one general right is claimed by 
 the bill, though the defendants have feparate and 
 diflin£l: rights, yet the demurrer will not hold. As 
 if a pcrfon, claiming a general right to the fole 
 filherj of a river, files a bill againft feveral perfons 
 claiming feveral rights in the fifhery, as lords of 
 manors, occupiers of lands, or otherwise ^ For 
 
 ? I Vern.416. 463 Hardr. '' i "^'orn. 463. 
 5";7. «^ I Atkyns, zSz. 
 
 " I Vein, 416. 
 
 in
 
 ( 6i ) 
 
 in this cafe the plaintiff does not claim feveral fe- 
 parate and diftinft rights, in oppofition to feveral 
 feparate and diftinft rights claimed by the defend- 
 ants ; but he claims one general and entire right, 
 though fet in oppofition to a variety of diftindl 
 rights claimed by the feveral defendants. 
 
 12. As the court will not permit the plaintiff to 
 demand by one bill feveral matters, of different na- 
 tures, againft feveral defendants, fo it will not per- 
 mit a bill to be brought for part of a matter only ; 
 but to prevent the fplitting of caufes, and confe- 
 quent multiplicity of fuits, will allow a demurrer 
 upon this ground". 
 
 13. The plaintiff mufl by his bill (hew fome claim 
 of intereft in the defendant in the thing demanded 
 by the bill, or the defendant may demur ^ As if 
 a bill is tiled to have the benefit of, or to impeach, 
 an award, and the arbitrators are made parties ; a 
 demurrer of the arbitrators will hold to the whole 
 bill, as well the relief, as the difcovery*^. For the 
 plaintiff can have no decree againft them, nor can 
 he read their anfwer againfl the other defendants. 
 So if a bankrupt is made party to a bill againft his 
 alTignees touching his eftate, he may demur to the 
 relief ; for all his intereft is transferred to his af- 
 fignees •, but if any difcovery is fought of his a£ls 
 before he became a bankrupt, he muft anfwer to 
 that part of the bill. The plaintiff muft likewife 
 
 'iiVern.*9. « a Eq.Ca. Ab. 78, f»Vern. 380. 
 
 Ihew
 
 ( ^2 ) 
 
 fliew forae claim of interefl in the defendant in a 
 bill for a difcovery merely ^ ; for fuch a bill can only 
 be a bill to gain evidence, and yet the anfwer of the 
 defendant cannot be read as evidence againfl any 
 other perfon, not even againfl another defendant to 
 the fame bill ^, There feems, however, to be an 
 exception to this rule in the cafe of a corporation. 
 For as a corporation can anfwer no otherwife than 
 under their common feal, and therefore, though 
 they anfwer falfely, there is no remedy againfl them 
 for perjury j it has been ufual, where a difcovery 
 of entries, or orders in the books of the corporation, 
 or of any a6ts done by the corporation, has been 
 necelTary, to make their fecretary, or book-keeper, 
 or other officer, a party ; and a demurrer, for that 
 the bill fliewed no claim of interefl in the defend- 
 ant, has been in fuch cafe over-ruled '. So where 
 bills have been filed to impeach deeds on the ground 
 of fraud, attornies who have prepared the deeds, 
 and other perfons concerned in obtaining them, 
 have been frequently made defendants, as parties to 
 the fraud complained of, for the purpofe of obtain- 
 ing a full difcovery; and no cafe appears in the 
 books of a demurrer by fuch a party, becaufe he 
 had no claim of interefl in the matter in queflion 
 by the bill. Indeed an attorney under fuch circum- 
 flances has been ordered to pay cofls ^. 
 
 g 2 Vern. ■jSo. z Atkyns, 311. note U. 
 394. 1 Vezey, 476. ' 3 P. Wms. 312. 
 
 i- 2 Vem. 3S0. 3 P. WiTij. ""i Atkyns, 234.. 
 
 14. If
 
 ( 63 ) 
 
 14- It' a bill does not (hew fome ground to charge 
 the defendant with the plaintiff's demand, the de- 
 fendant may demur. As where a bill was brought, 
 upon fome ground of equity, by the obligee in a 
 bond againft the heir of the obligor, alledging that 
 he having aflets by defcent ought to fatisfy the 
 bond •, becaufe the bill did not exprefsly alledge that 
 the heir was bound in the bond, although it al- 
 ledged that the heir ought to pay the debt, a de- 
 murrer to difcovery of aflets was allowed )<:. So 
 where a bill was brought againft an aflignee, to dif- 
 cover a matter touching a breach of a covenant in 
 a leafe, and the covenant appeared to be collateral, 
 and not running with the land did not bind afligns ; 
 or if it did bind afligns, was not ftated by the bill 
 fo to do ; the affignee demurred, and the demurrer 
 was allowed '. 
 
 But wherever the plaintiff, though not intitled to 
 relief in a court of equity, may yet be intitled to 
 relief in fome other court, which cannot compel a 
 difcovery upon oath ; there, though the defendant 
 may demur to the relief prayed by a bill, he muft 
 yet anfwer to the difcovery fought *". 
 
 II. A demurrer to the difcovery fought by a 
 bill, fometimes includes, by confequence, a demur- 
 rer to the relief, if any is prayed ; for without the 
 difcovery the plaintiff may not be able to fhew his 
 
 " I Vern. i?o. "> 3 P. Wms. 150. « At- 
 
 J I Vezey, 56. kyns, 157, 
 
 title
 
 ( ^4 ) 
 title to relief. The grounds for ?. demurrer to a 
 difcovery only, are principally, i. That the dif- 
 covery will make the defendant liable to pains 
 and penalties. 2. That the difcovery will make 
 the defendant liable to forfeiture of intereft, or 
 to fomething in the nature of a forfeiture. 3. 
 That the difcovery cannot be material to the re- 
 lief. 4. That the plaintiff fhews no title to the 
 difcovery. 
 
 I. It is a general rule, that no one is bound to an- 
 fvirer fo as to fubject himfelf to punifliment, in 
 whatever manner that punifhment arifes, or what- 
 ever is the nature of the punifhment ". If there- 
 fore a bill requires an anfwer, which may fubjetl the 
 defendant to any pains, or penalties, he may demur 
 to fo much of the bill. As if a bill charges any 
 thing, W'hich, if confeffed by the anfwer, would 
 fubje<Sl the defendant to any criminal profecution <>, 
 or to any particular penalties ; as an ufurious con- 
 tra61: p, maintenance ^, champerty. And in fuch 
 cafes, if the defendant is not obliged to anfwer the 
 fa£l:s, he need not anfwer the circumflances, though 
 they have not fuch an immediate tendency to cri- 
 minate ^ But if the plaintiff is alone intitlcd to the 
 penalties, and exprefsly waves them by his bill, the 
 
 I. 2 Vezey, 24.5. 450. t Atkyns, -,95. 
 
 o I Vtzey, 946. 2 Vezey, 1 Rep. Temp. Finch, 75. 3 
 
 451. !'• Wms. -;76. 
 
 y Totl)ill, 135 1 Alkyns, r i Vezey, ;4; , :14s. 
 
 dc-
 
 ( 65 ) 
 
 defendant fhall be compelled to make the difcoveryi 
 for it can no longer fubjedl him to a penalty. As 
 if a reftor, or impropriator, or vicar, files a bill for 
 tythes ; he may waive the penalty of the treble va- 
 lue % to which he is intitled by the ftatute of 2 and 
 3 Edw. VI. and thus become Intitled to a difcovery 
 of the tythes fubtra£ted. 
 
 It is not, however, in every cafe, that the party 
 ihall protect himfelf againft. relief in a court of 
 equity, upon an allegation that if he anfwers the 
 bill filed againft him, he muft fubjeil himfelf to 
 the confequences of a fuppofed crime. But though 
 fuch an allegation will not create a defence againft 
 relief, the court will not force the party by his own 
 oath to fubje£l himfelf to punilhment. And there- 
 fore in the cafe of a bill to enquire into the validity 
 of deeds, upon a fuggeftion of forgery, the court 
 has entertained jurifdi£lion of the caufe; and though 
 it has not obliged the party to a difcovery, yet has 
 diredled an iflue to try whether the deeds were 
 forged t. 
 
 It fliould feem, that a demurrer will alfo hold to 
 any difcovery, which may tend to Ihew the defend- 
 ant guilty of any moral turpitude ; as the birth of a 
 child out of wedlock ". But a mother may in fome 
 cafes be compelled to difcover where her child was 
 born, though it may tend to fhew the child to be 
 
 s I Vern. 6o. » See, however) % 'Wtityt 
 
 taVefey, 24.6. 4.51. 
 
 an
 
 ( 66 ) 
 
 an alien * ; for that is not a difcovery of any illegal 
 aft, or of any adl which can afFe£l the character of 
 the defendant. 
 
 2. A demurrer will likewife hold to a bill requir- 
 ing a difcovery, which may fubjeft: the defendant to 
 any forfeiture '' of intereft ; as if a bill is brought to 
 difcover, whether a leafe has been affigned without 
 licence j or whether a defendant, intitled during 
 widowhood % or liable to forfeiture of a legacy in 
 cafe of marriage without confent ^\ is married. But 
 if the plaintiff is alone intitled to the benefit of 
 the forfeiture, and exprefsly waives ' it by the bill ; 
 as in the cafe of a bill for difcovery of v.'afte "^ ; a 
 demurrer will not hold: for the court has a ground 
 of equity to award an injundtion, if the plaintift' 
 fues for the forfeiture *. And where a devife over 
 of an eftate, in cafe of marriage, is to be confide r- 
 ed as a conditional limitation, and not in the na- 
 ture of a forfeiture, there a demurrer to a bill for 
 a difcovery of marriage will not hold '. 
 
 A defendant may in the fame manner demur to a 
 difcovery, which may fubjeft him to any thing in 
 the nature of a forfeiture ^ ; as whefe a difcovery is 
 fought, whether the defendant was educated in the 
 popifli religion, for he incurs the incapacities in the 
 
 x * Vefey, 187. 494 « 1 Vefey, 56. 
 
 y Tothill, 69. ■" a Atkyns, 393. 
 
 2 I Vefey, 56. ^ , Veiey, 56. 
 
 a I Chan. Rep. 68. f 2 Atkyns, 393, 3 At- 
 
 •> X Atkyns, 391. 2 Vc- kyns, 260. z Vefey, 265. 
 
 fey, 265. B 3 Atkyns, 457* 
 
 ftatute
 
 ( 67 ) 
 
 ftatute n and 12 Will. Ill u; or whether a clergy- 
 man was prefented to afccond living, which avoided 
 the firft '. So a jointref;> may demur to a bill filed 
 by an heir at law againil her for a difcoveiy of her 
 jointure deed, if the plaintiff is not capable of con- 
 firming, or the bill does not offer to confirm, the 
 jointure, and the fa6ls appear fufHciently on the 
 face of the bill. But, in general, advantage is taken 
 of this defence by way of plea ''. 
 
 3. A defendant is not compellable to difcover any 
 thing immaterial ' to the relief prayed by the bilL 
 Upon this ground, upon a bill filed by a mortgagor 
 againft a mortgagee to redeem, and feeking a difco- 
 very whether the mortgagee was a truftee, a de- 
 murrer to the difcovery was allowed. For as there 
 was no truft declared upon the mortgage, and the 
 defendant was willing to re-convey, free from in- 
 cumbrances, it was not material to the plaintiff, 
 whether there was any truft repofed in the de- 
 fendant or not ™. So where a bill was filed by a 
 lord of a borough, praying, amongft other things, 
 a difcovery, whether a perfon applying to be admit- 
 ted tenant was a truftee, the defendant demurred ". 
 And where a bill was brought for a real eftate, and 
 fought a difcovery of proceedings in the ecclefiafti- 
 
 h Comyn, 661. 3 Bac. ^ 2 Vefey, 450. 
 
 Al->. Soo, 801. The 18 Geo. ' Mofely, 38. 
 
 III. c. 60. does not entirely "> Rep. Temp. Finch. 214. 
 remove thefe incapacities. n ^ Vefey, 396. 399. 
 
 * 3 Atkyns, 453. 
 
 F 2 cal
 
 ( 68 } 
 
 cal court upon a grant of adminlflration, the defend' 
 ant demurred to that difcovery, the proceedings in 
 the ecclefiaftical court being immaterial to the plain- 
 tiff's cafe o. Again, where a bill, to eftablrfh an 
 agreement for a feparate maintenance for the de- 
 fendant's wife, prayed a difcovery of ill-treatment 
 of the wife to make her recede from the agreement ; 
 the defendant demurred to this difcovery, as of a 
 matter not properly cognizable or relievable in a 
 court of equity P. 
 
 4. If a bill feeks a difcovery to which the plain- 
 tiff fhews no title, a defendant may demur to the 
 particular difcovery, though not to the reft of the 
 bill. As in the cafe of a bill filed by a perfon 
 claiming to be lord of a manor, againft another 
 perfon aifo claiming to be lord of the fame manor, 
 and praying, amongft other things, a difcovery in 
 what manner the defendant derived title to the ma-r 
 nor-, the defendant demurred, becaufe the plaintiff 
 had fiiewn no title to the difcovery, and the de- 
 murrer was allowed ''. 
 
 III. The effeft of a demurrer put in upon a flip, 
 inaccuracy, or miflake, in a bill, may be immedi- 
 ately deftroyed by amending the bill in the particu- 
 lars obje£led to, with leave of the court. Demur- 
 rers of this fort are principally where fome matter 
 of neceffary form has been omitted, as the abode of 
 the plaintiff i or of the next friend of an infant, or 
 
 " z Atkyns, 388. '' Adderley v. Sparrow, 
 
 ^ I Vern. 204.. Hilary 1779. 
 
 a mar-
 
 ( 69 ) 
 
 a married woman, plaintiff; or of the relator in an 
 information. The mention of the refidence of thefe 
 perfons is neceffary, that the defendant may know 
 where to refort to ferve procefs, and for his cods, 
 if finally difmiffed. 
 
 If the plaintiff can avoid any demurrer whatfoever 
 by amendment of his bill, he may obtain leave to 
 amend it at any time before the demurrer has been 
 argued ^ •, but after argument of a demurrer to the 
 whole of a bill, it is not ufual to permit an amend- 
 ment, except in the cafe of a demurrer for want of 
 parties «. 
 
 IV. A bill, for a difcovery merely, is generally 
 liable to the fame grounds of demurrer as any other 
 bill. But a demurrer to a bill for a difcovery merely 
 will not hold for want of parties ', for the plaintiff 
 feeks no decree ; nor, in general, for want of equity 
 in the plaintiff's cafe, for the fame reafon ; nor be- 
 caufe the plaintiff may have remedy at law, for he 
 cannot have the difcovery which leads to the re- 
 medy •, nor becaufe the plaintiff may have remedy 
 jn the ecclefiaftical court, in cafes where he cannot 
 have all the neceffary difcovery in that court ; nor 
 becaufe a bill js brought for difcovery of part of a 
 matter, for that is merely a demurrer becaufe the 
 difcovery would be infulhcient. But it fliould feem 
 a demurrer would hold to a bill for difcovery of fe- 
 veral diftindl matters, againft feveral diftinft de- 
 fendants. For though a defendant is always eventu- 
 
 ' Mofdy, 301. « zEq. Ca. Ab. 170. 
 
 • z Chan. Ca, 197. 
 
 F 3 ally
 
 ( 70 ) 
 ally paid his cofts upon a bill of difcovery, if both 
 parties live, yet the court ought not to permit him 
 to be put to any unneceflary expence, as either the 
 plaintifF or defendant piay die pending the fuit. 
 
 Although as the fpecies of bills already confidered 
 are the mofl ufual, demurrers to fuch bills are alfo 
 mofl ufual, yet demurrers will likewife hold to any 
 other fpecies of bills, except a certiorari bill, and 
 generally for the fame caufcs. But fome of the 
 different kmds of bills have likewife their own pe- 
 culiar difUncl caufes of demurrer. 
 
 Thus if to a bill of interpleader the ufual affida- 
 vit, that the plaintifF does not collude with any of 
 the parties, is not annexed, the defendant may de- 
 mur ". To fuch a bill there is likewife another 
 caufe of demurrer-, for if the plaintiff does not 
 fhew, that each of the defendants whom he feeks to 
 compel to interplead claims a right, both the de- 
 fendants may demur •, one, becaufe the plaintifF 
 fhews no right in the defendant demurring ; the 
 other, becaufe the plaintiff, (hewing no right in the 
 co-defendant, fliews no caufe of interpleader ". Or 
 if the plaintifF fhews no right to compel the de- 
 fendants to interplead, wliatever rights they may 
 claim, each defendant may demur. 
 
 To a certiorari bill, as has been already obferved, 
 there can be no demurrer; for it requires no anfwerv. 
 
 u I Vefey, 748. contrary ; but they fecm not 
 
 ' I Vcfey, 24.8. to have bfen cafes of bills 
 
 y There are in the books piaying merely the writ of 
 
 ^any cales apparently to the ceitiorari. See i Chan. Ca. 31. 
 
 There
 
 f 70 
 There are few cafes in which a man is not intitled 
 to perpetuate the teftimony of witnefTes ^, and there- 
 fore to fuch a bill a demurrer will feldom lie. But 
 if upon the face of the bill the plaintiff appears to 
 have no certain right to, or intereft in, the matter 
 to M'hich he craves leave to examine, in prefent, or 
 in future % a demurrer will hold. As if a perfon 
 not claiming under a will fliould pray leave to per- 
 petuate the teftimony of the witnefl'es to the will ; 
 or a perfon claiming as a devifee in the will of a per- 
 fon living, but a lunatic, fliouId bring a bill to per- 
 petuate the teftimony of witnelTes to the will, againft 
 the prefumptive heir at law '' ; or a perfon who 
 would be next of kin to a lunatic if he were dead 
 inteftate, ftiould bring a bill, in the life-time of th« 
 lunatic, to perpetuate the teftimony of witneffes to 
 his legitimacy, againft the attorney-general as fup- 
 porting the rights of the crown ". The parties have, 
 in thefe cafes, no intereft in any thing which can 
 be the fubjecl of a fuit ; they fuftain no chara£ter 
 under which they can afterwards ufe the depofi- 
 tions " ; and therefore the depofitions, if taken, 
 would be wholly nugatory. But even where a de- 
 
 z I Atkyns, 451. 571. i fore lord Northington. i 
 
 P. Wms, 117. Prec. in Ch. Prax. Aim. Cur. Cane. 500. 
 
 53r. I Rol. Ab. 383. where there is the form of 
 
 * Smith V. Att. Gen. in fuch a demurrer. 
 
 Chan. Mich. 1777. •= Smith v. Att, Gen. Mich. 
 
 " I Vepn. 105. I Eq. Ca. 1777. 
 
 Ab. 234. Smith v. Watfon, d See 2 Prax. Aim. Cur. 
 
 in Chan. 20 June, 1760, be- Cane. 501. 
 
 F 4 fendant
 
 ( 72 } 
 fendant might demur both to the difcovery fought 
 and the relief prayed by a bill, it was held, that to 
 fo much of the bill as fought to perpetuate the tefti^ 
 mony of witnefles the defendant could not demur ^ 
 If a bill of revivor does not fliew a fufficient 
 ground for reviving the fuit ?, or any part of it \ 
 either by, or againfl ', the perfon by, or againft, 
 whom it is brought, the defendant may by demurrer 
 fhewcaufe againft the revival''. Indeed though the 
 defendant does not demur, yet if the plaintiff does 
 not fhew a title to revive, he will take nothing by 
 his fuit at the hearing '. A demurrer will hold to 
 a bill of revivor brought fingly for cofts "" ; the court 
 not permitting a fuit to be revived for that purpofe 
 only, even where the cofts have been acStually taxed 
 before the abatement happened. If a fupplemental 
 bill is brought upon a matter arifing before the fil- 
 ing of the original bill, where the fuit is in that 
 flage of proceeding that the bill may be :nmended, 
 the defendant may demur ". If a fupplenicn.al bill 
 is brought upon a matter arifing fubi^qucnt to the 
 time of the filing the original bill, againft a perfon 
 who was no party to the original bill, and claims 
 no interefl arifing out of the matters in litigation in 
 the original bill, the defendant to the fupplemental 
 bill may alfo demurj efpecially if the fupplemental 
 
 ' I Atkyns, 450. k 3 P. Wins. 348. 
 
 « 3 P. Wms. 348. ' 3 p. Wins. 348. 
 
 ^ I Eq. Ca. Ab. 3, 4. "^ z Eq. Ca. Ab. 3. 
 
 i a Cti. Rep. 244. n ^ Atkyns, S17,
 
 ( 73 ) 
 
 bill prays, that he may anfwer the matters charged 
 in the original bill. Thefe, however, are grounds 
 of demurrer arifing rather from the plaintiff's hav- 
 ing miftaken his remedy, than from his being with- 
 out remedy. Original bills, in the nature of bills 
 of revivor, and fupplement, are liable to obje£lions 
 of the fame nature. 
 
 A crofs bill having nothing in its nature different 
 from the firft fpecies of bills, with refpe£tto which 
 demurrers in general have been confidered, except 
 that it is occafioned by a former bill, there feems 
 no caufe of demurrer to fuch a bill, which will not 
 equally hold to the firfb fpecies of bills. And a de- 
 murrer for want of equity will not hold to a crofs 
 bill filed by a defendant in a fuit, againft the plain- 
 tiff in the fame fuit, touching the fame matter. For 
 being drawn into the court by the plaintiff in the 
 original bill, he may avail himfelf of the afliflance 
 of the court, without being put to fhew a ground 
 of equity to fupport its jurifdiclion °, a crofs bill 
 being generally confidered as a defence p. 
 
 The conftant defence to a bill of review for error 
 apparent upon a decree is, by plea of the decree, 
 and demurrer againft opening the inrolment ^. But 
 where any matter beyond the decree is to be offered 
 againft opening the inrolment, as length of time, 
 that matter muft be pleaded ; otherwife the plain- 
 tiff will not have the benefit of exceptions, as in- 
 
 « Harcires, 160. 
 
 '' I Vern. 392, 
 
 z At- 
 
 f 3 Atkyns, 812. 
 
 kyns, 534. 
 
 fancy.
 
 ( 74 ) 
 fancy, coverture, or the like '. A bill of review 
 upon the difcovery of new matter being exhibited 
 only by leave of the court, the ground of the bill is 
 generally well confidered before it is brought j and 
 therefore in point of fubfiance it can rarely be liable 
 to a demurrer. But if brought upon new matter 
 alleged, and the defendant thinks that matter not 
 relevant, probably he might take the advantage of 
 it by way of demurrer, although the relevancy ought 
 to be confidered at the time leave is given to bring 
 the bill. If a fupplcmental bill in n;^ture of a bill 
 of review, is brought upon allegation of a difcovery 
 of new matter, and it appears upon the face of the 
 bill that no new matter has been difcovcred, the 
 defendant may take advantage of it by demurrer \ 
 Bills in the nature of bills of review do not appear 
 fubjeft to any peculiar caufe of demurrer, unlefs 
 the decree fought to be reverfed does not affect the 
 intereft of the perfon filing the bill. If upon argu- 
 ment of a demurrer to a bill of review, the demurrer 
 is allowed, and the order allowing it is inrolled, it 
 is an cfFeclual bar to another bill of review *. If 
 upon the face of a bill to carry a decree into execu- 
 tion, the plaintiff appears to have no right to the 
 benefit of the decree, the defendant may demur. 
 
 A bill filed by the diredlion of the court, for the 
 purpofc of obtaining its decree touching fome mat- 
 
 ' aVtfcy, log. Sfe, how- ' z Cli. Ca. 133. 1 Vern. 
 ever, 1 Bruwn. I'ail. Ca. 95. ' i 35, 4 7. 4:^'' 2 Vein. izo. 
 ' 2 Atkyns, 4c. 
 
 ter
 
 { 75 ) 
 ter not in KTue by the former bill, or not in iffue 
 between the proper parties, does not feem liable to 
 any peculiar caufe of demurrer. Indeed, being ex- 
 hibited by order of the court upon hearing another 
 caufe, there is little probability, that fuch a bill 
 fhould be liable, in fubflance, to any demurrer. 
 
 In addition to the feveral particular caufes of de- 
 murrer applicable to particular kinds of bills, it 
 may be obferved, that any irregularity in the frame 
 of a bill of any fort may be taken advantage of by 
 demurrer. Thus if a bill is brought contrary to 
 the ufual courfe of the court, a demurrer will hold «. 
 As where after a decree dire£ling incumbrances to 
 be paid according to priority, the plaintiiF, a creditor, 
 obtained an affignment of an old mortgage, and filed 
 a bill to have the advantage it would give him by 
 way of priority over the demands of fome of the 
 defendants ". This was a bill to vary a decree, and 
 yet was neither a bill of review, nor a fupplemental 
 bill in nature of a bill of review, which are the only 
 kinds of bills which can be brought to afFedl or 
 alter a decree >", unlefs the decree has been obtained 
 .by fraud ^. So if a fupplemental bill is brought 
 againft a perfon not a party to the original bill, 
 praying that he may anfwer the original bill, and 
 
 u 3 Atkyns, 809. Bunbu- r 1 Ch. Ca. 44. 2 Freem. 
 
 56.. 179- 
 
 X 3 Atkyns, 811. 2 Ve- ^ 3 Atkyns, 811. Rep. 
 
 fey, 571. Temp Talb.201. 
 
 no
 
 C 76 ) 
 
 no reafon is fuggefted why he could not be made 
 a party to the original bill by amendment, he may 
 demur a. If an irregularity arifes in any alteration 
 of a bill byway of amendment, it may alfo be taken 
 advantage of by demurrer. As if a plaintiff amends 
 his bill, and ftates a matter arifen fubfequent to the 
 filing of the bill ^, which confequently ought to be 
 the fubjeft of a fupplemental bill, or bill of revivor. 
 
 Having thus confidered the feveral grounds of 
 demurrer, it may be proper to obferve fome parti- 
 culars, which are neceflary to be attended to in 
 framing demurrers in general. 
 
 A demurrer muft be figned by counfel ; but is put 
 in without oath, as it aflcrts no fatl, but relies 
 merely upon matter apparent upon the face of the 
 bill. It is therefore confidered, that the defendant 
 may, by advice of counfel, upon the fight of the 
 bill only, be enabled to demur thereto =. For this 
 reafon it is always made the fpecial condition of an 
 order for time to demur plead or anfwer to the 
 plaintiff's bill, that the defendant fhall not demur 
 alone. Whenever, therefore, the defendant has 
 obtained an order for time, and is afterwards ad- 
 vifed to demur, he muft plead to or anfwer fpme 
 part of the bill. It has been held, that anfwcring to 
 fomc fact' immaterial to the caufe, and denying 
 combination, do not amount to a compliance with 
 the terms of fuch an order; and therefore, upon 
 
 » 3 Alkyns, 817. c Old. in Ch. 96. 
 
 *> I Atkyiw, agi- 
 
 mption,
 
 ( 77 ) 
 motion, a demurrer accompanied by fuch an anfwer 
 has been difcharged "'. But great inconvenience 
 might arife from this determination, if ftri6lly ad- 
 hered to. For it often happens that a defendant 
 cannot poflibly anfwer any material part of the 
 bill, without ovei-'ruling his demurrer; it being 
 held, that if a defendant anfwers to any part of a 
 bill to which he has demurred, he waives the be- 
 nefit of the demurrer ^5 or if he pleads to any 
 part of a bill before demurred to, the plea will over- 
 rule the demurrer ^ For the plaintifF may reply to 
 a plea, or anfwer, and thereupon examine witnef- 
 fes, and hear the caufe ; but the proper conclufion 
 of a demurrer is, to demand the judgment of the 
 court, whether the defendant ought to anfwer to 
 fo much of the bill as the demurrer extends to, or 
 not s. The condition, that the defendant fliall not 
 demur alone, feems now, therefore, confidered more 
 liberally ; and anfwering any one fa6l in a bill, and 
 denying combination, is generally efteemed a com- 
 pliance with the order. It has been even faid, that 
 the court will not incline to difcharge the demurrer 
 if the defendant denies combination only, where he 
 cannot anfwer farther without over-ruling his de- 
 murrer ^. Indeed any material anfwer muft in 
 many cafes over-rule the demurrer ; fo that giving 
 a defendant leave to demur, not demurring alone, 
 is often in efFedl giving leave to do a thing, but 
 
 d X P. Wms. 286. *■ 2 Atkyns, 282. 
 
 63?. Wms. 79. 2 At- 23?. Wms. 80. 
 kyns, 157. h 3 Atkyns, 71.6, 727. 
 
 clogging
 
 ( 78 ) 
 
 clogging the pcrmifTion with a condition which 
 makes it nugatory. And though the rule was firfl 
 adopted upon a reafonable ground, to prevent un- 
 neceflary delay, it may, if ftri6lly obferved, con- 
 tradifl the maxim, that a court of equity ought 
 not for form fake to do a great injuflice '. 
 
 Every demurrer mull exprefs the feveral caufes of 
 demurrer ^ ; and likewife, in cafe the demurrer 
 goes not to the whole bill, it muft clearly exprefs 
 the particular parts of the bill demurred to '. If a 
 demurrer is general to the whole bill, and there is 
 any part, either as to the relief, or the difcovery, 
 to which the defendant ought to put in an anfwer, 
 the demurrer, being entire, muft be over-ruled "". 
 But a defendant may put in feparate demurrers to 
 feparate and diftincSl: parts of a bill, for feparate and 
 diftinfl caufes. For the fame ground of demurrer 
 frequently will not apply to different parts of a bill, 
 though the whole is liable to demurrer. And in 
 this cafe, one demurrer may be over-ruled upon 
 argument, and another allowed ". 
 
 A demurrer being always upon matter apparent 
 upon the face of the bill, and not upon any matter 
 alleged by the defendant, it fometimes happens 
 that a bill which, if all the parts of the cafe were 
 difclofcd would be open to a demurrer, is fo art- 
 fully drawn as to avoid (liewing upon the face of it 
 
 ' I Vefcy, 24.y. ' i Veky, 451. 
 
 ^ Old. in Ch. 97. Car. f" i Vc(ey, 148. 
 
 Rep. II}. '■• 2 P. Wmi. 143. 
 
 any
 
 ( 79 ) 
 any caufe of demurrer. In this cafe the defendant is 
 compelled to refort to a plea, by which he may 
 allege matter which, if it appeared on the face of 
 the bill, would be good caufe of demurrer. For, 
 In moft cafes, what is a good defence by way of 
 plea, is alfo good as a demurrer, if the fa£ls ap- 
 pear fulficieutly by the bill ". 
 
 CHAP. IV. 
 Of Pleaj. 
 
 A PLEA is a fpeclal anfwer to a bill, fhewing, 
 or relying upon, one or more things, as a caufe 
 why the fuit fliould be either difmiffed, delayed, or 
 barred p. The defence proper for a plea muft be fuch 
 as reduces the caufe,orfomepartof it,toafmglepoint, 
 and from thence creates a bar to the fuit. The end 
 of a plea is to fave to the parties the expence of an 
 examination of witnefles at large ; and therefore it 
 is not every good defence in equity that is good as 
 a plea. For where the defence confifts of a variety 
 of circumflances there is no ufe of a plea ; as the 
 examination muft ftill be at large, and the effect of 
 
 « See Hetley, 139. Bill v. 3 Atkyns, 226. 
 Sir Atwell Lake, But fee p Prac. Reg. 273. 
 
 allowing
 
 ( 8o ) 
 
 allowing a plea will be, that the court will give 
 judgment on the circumftances of the cafe before 
 they are made out by proof ''. 
 
 Pleas are of three forts -, I. To the jurifdiclion of 
 the court. II. To the perfon of the plaintiff, or 
 defendant. III. In bar of the plaintiff's fuit. — Pleas 
 to the jurifdicftion of the court, and to the perfon 
 of the plaintiff, generally go to the whole bill, and 
 affe£t both the difcovery fought, and the relief, if 
 any, prayed by the bill. Thefe may therefore be 
 confidered, without any reference to the peculiar 
 kinds of bills 'to which they may be applied. But 
 pleas in bar of the fuit, though they frequently go 
 to the v/hole bill, and affe£l both the relief and dif- 
 covery, yet fometimes only affe6l part of both, and 
 fometimes only one, and fometimes the other only, 
 or part only of one, or of the other. It will be 
 therefore neceffary to confider pleas of this nature 
 with a reference to the peculiar kinds of bills to 
 which they relate. 
 
 I. If the court of chancery has not jurifdiftion 
 in the fubje£l matter of the fuit, the defendant 
 may plead the matter which deprives the court of 
 jurifdiction, and fliew to what court the jurifdic- 
 tion belongs ^, and upon this ground may demand 
 the judgment of the court, whether he fhall be 
 compelled to anfwer the bill '. Pleas of this nature 
 arife principally where the fuit is for land within 
 
 '1 I Atkyns, 54. 1 Har- ' 1 Vefey, 103. 
 Clian. Piac, 356 b. C. ' Chan Prac. 417.410. 
 
 a county
 
 ( 8i ) 
 
 a county palatine t, or where the defendant claims 
 the privileges of an univerfity ", or other particular 
 jurifdiftion. 
 
 The court of chancery being a fuperior court of 
 general jurifdidlion, nothing {hall be intended to 
 be out of its jurifdicSlion, which is not fhewn to be 
 fo ^ It is requlfite, therefore, in a plea to the ju- 
 rifdi£lion of the court, to allege that the court has 
 not jurifdi£lion of the fubjedl matter of the fuit, 
 and to fhew by what means it is deprived of jurif- 
 ditlion. It is likewife neceflary to fhew what court 
 has jurifdiflion r. If the plea does not properly 
 fet forth thefe particulars ^, it Is bad in point of 
 form \ In point of fubftance it is neceffliry, to 
 intitle the particular jurIfdi(flion to exclufive 
 cognizance of the fuit, that it fhould be able to 
 give complete remedy ^. A plea, therefore, of 
 privilege of the univerfity of Oxford, to a bill 
 for a fpecific performance of an agreement touch- 
 ing lands in Middlcfex, has been over-ruled ; for 
 the univerfity court could not give complete relief ^ 
 
 t Com. Dig. Chan. 56. Ventr, 362. 
 
 Chan. Prac, 420. i Chan. " 1 Vefey, 204. 
 
 Ca, 41. Reported, upon view ^ 1 Vern. 59. i Vefey, 203, 
 
 of precedents, that the ju- 204. 
 
 rifdi6tion of the counties pa- z See Nelf Rep. 51. 
 
 latine was allowed, between » i Vefey, 204. 2 Ventr. 
 
 parties dwelling within the 362. 
 
 fame, and for lands there, k 2 Ventris, 363. i Vern. 
 
 and matters local. Melf. 212. 
 
 Rep. 37. 66. c 2 Ventris, 363. 
 
 • Car. Rep. 65, 66. 73. 2 
 
 G And
 
 ( 82 ) 
 
 And if a fult is inftituted againft different perfons, 
 fome of whom have privilege, and fome not, a plea 
 will not hold ''. It is the fame cafe, where one de- 
 fendant is not amenable to the particular jurifdic- 
 tion c. If, likewife, there is a particular jurifdidlion, 
 and yet the parties to litigate any queftion are both 
 refident within the jurifdidl:ion of the court of chan- 
 cery; as upon a bill concerning a mortgage of the 
 ifland of Sarke, both mortgagor and mortgagee re- 
 ading in England; the court of chancery will hold 
 jurifdiclion of the caufe : for a court of equity agit 
 in pcrfonam f. So where the court may not have ju- 
 rifdiftion to give relief, it may yet entertain a bill 
 for a difcovery, in aid of the court which can give 
 relief, if the fame difcovery cannot be there obtain- 
 ed ; as if the jurifdicftion be in the king in council, 
 where the defendant cannot be compelled to anfwer 
 upon oath *. 
 
 Similar to a plea to the jurifdiftion is the cafe of 
 a plea to an information charging an undue eledlion 
 of a fellow of a college in one of the univerfities, 
 that by the ftatutes the vifitor of the college 
 ought to determine all controverfies concerning 
 eleflions of fellows, and that fuch controverfies 
 ought not to be determined elfcwhcre ^. But the 
 extent of the vifitor's authority mufl be averred ; 
 
 ^ Car. Rep. 55, 56. 22 z 1 Vefey, 205. 
 Vin.Ab. 9. ^ sAtkyns, 662. i Vefey, 
 
 e Hutton, 59. ji, 4.64. 
 
 ' I Vefey, 204.. 4lnft. 213. 
 
 and
 
 ( 83 ) 
 isnd it mud alfo be averred that he is able to do 
 complete juftice '. And where there is a truft 
 created, the vifitor having no power to compel per- 
 formance of the truft, relief mufl be had in the 
 king's courts of general jurifdi6lion ^. 
 
 II. In refpe6l of the perfon of the plaintiff it 
 may be (hewn, either that the plaintiff is by lavir 
 difabled to fue, as being outlawed, or excommuni- 
 cated, or a popifh recufant convidl, which work a 
 temporary difability ; or that the plaintiff is attaint- 
 ed in a praemunire, or of treafon, or felony ; or 
 that he is an alien ; or that he is incapable a/one of 
 jnflituting a fuit. It may alfo be pleaded that the 
 plaintiff, or defendant, is not fuch perfon as alleged 
 in the bill ; as feme fole, heir, executor, or admi* 
 niftrator ; and is not therefore to fue or be fued as 
 fuch for the matter in queftion '. The three firft of 
 thefe pleas are generally to the perfon of the plaintiff 
 fuing in his own right; the three next may be to the 
 perfon of the plaintiff ^ fuing in any right ; and the 
 lafl to the perfon either of the plaintiff, or defend'* 
 ant, in whatever right fuing, or fued. 
 
 I. If outlawry is pleaded, the record, or the ca- 
 pias thereupon, mufl be pleaded ftib pedeftgiUiy and 
 is ufually annexed to the plea ■". A plea of out- 
 lawry, in a fuit for the fame duty or thing forwhich 
 relief is fought by the bill, is infufficient, according 
 
 i I Vefey, 474. >" Tothill, 54. Prac. Reg. 
 
 k 1 Vefey, 475. 276. 
 
 1 Prac. Reg. 276. 
 
 G 2 tfi
 
 ( 84 } 
 
 io the rule of law, and (hall be difallowed of courfc> 
 as put in for delay. Otherwife a plea of outlawry ia 
 always a good plea, fo long as the outlawry remains 
 in force ". But a plea of this nature is no longer 
 a bar than whilft the outlawry remains in force. If 
 that is reverfed, the plaintiff, upon payment of cofls, 
 may fue out frefh procefs againfl; the defendant, and 
 compel him to anfwer the bill ^. Outlawry in a 
 plaintiff, executor, or adminiflrator, cannot be plead- 
 ed; for he fues /// ^i/ter droit ^. It is equally infuffi- 
 cient, if alleged in difability of a perfon named in a 
 bill as the next friend of an infant plaintiff ^, or in 
 an information as a relator ^ 
 
 2. The defendant may plead that the plaintiff is 
 excommunicated, which mud be certified by the 
 ordinary, either by letters patent containing a po- 
 fitive affirmation that the plaintiff Hands excommu- 
 nicated, and for what j. or by letters teftimonialy 
 reciting, " quod fcriitntis regijleriis invemtury &c." 
 Either of thefe certificates muff h^ fub figillo, and 
 fo pleaded s. Excommunication is a good plea to 
 an executor, or adminiflrator, though they fue in 
 aider droit ' ; but not to the next friend of an in- 
 
 " Old. in Ch. 97. Ed. 1739, h^ve been allowed in the 
 
 o Ord. in Ch. 97. ducliy court of Lanc^fter. 
 
 " I Vern. i?4.. I'rac. Reg. But tlie rel.nor Teems to have 
 
 »77. fullained t!ie character of 
 
 <i Prac. Reg 278. plaintilt', as wtll as of relator. 
 
 •■ There IS a cafe in Tree. ' Ti ac. Reg. 178. Tolhil, 
 
 in Ch. 13 vvlierc a pica of 54. 
 
 outlawry, in <lif.»bility of the t Co. Litt. 134,. 4 Bac. 
 
 perfon of a relator, is faid to Ab. 36. 
 
 fant
 
 ( ss ) 
 
 fant *=. This, like the plea of outlawry, cSafes to 
 be a "bar when the difability is removed -, and there- 
 fore the plaintiff, purchafing letters of abfolution, 
 may, as at law, fue out frefli procefs, and compel 
 the defendant to anfvv^er the bill. 
 
 3. By ftatute 3 Ja. I. c. 5. f. ii. every popifli re- 
 ■<;ufant convi£t is in many cafes difabled to fue, in 
 the fame manner as a perfon excommunicated. The 
 inftances of a plea of convi£lion of recufancy have 
 probably been rare, as no traces of any occur in 
 the books of reports, nor does the form of the 
 plea appear in the books of practice. If advantage 
 was attempted to be taken of this ftatute, the court 
 would probably require the fame averments tofupport 
 the plea as are neceffary to a plea of the fame na- 
 ture at law ". This plea alfo ceafes to be a bar, if 
 the plaintiff, by conforming, removes the difability. 
 
 4. A plea, that the plaintiff is difabled from fuing, 
 being attainted, is equally rare. It would probably 
 be likewife judged with the fame ftridtnefs as if it 
 was a plea at lav/ y. 
 
 5. There is little more to be found in the books 
 upon the fubjeft of a plea that the plaintiff is an 
 alien *. An alien, who is not an alien enemy, is 
 under no difability of fuing for any perfonal de- 
 mand » i and an alien enemy may fue under forne 
 
 " Prac. Reg. 478, Ab. 274. Alien (I.) Prac. 
 
 " 3 Bac. Ab. 780, 781. Reg, 278. 
 y I Atkyns, 399. a I Atkyns, 51. 
 
 Atkyns, 399t a Vin. 
 
 G 3 circum"
 
 ( 86 ) 
 
 clrciimflances *. A plea has been put in to a hi\i 
 filed by an alien infidel, not of the chrillian faith, 
 and was attempted to be fupported upon the ground, 
 that the plaintiff was upon a crofs bill incapable of 
 being examined upon oath. The plea was over^ 
 ruled without argument c. 
 
 6. If a bill is filed in the name of any perfon in- 
 capable a/o/ie of inftituting a fuit*, as an infant, a 
 married woman, or an idiot or lunatic fo found by 
 inquifition ; the defendant may plead the infancy, 
 the coverture <", or the inquifition of idiotcy or 
 lunacy, in bar of the fuit. 
 
 7. A plea, that the plaintiff is not fuch perfon as 
 alleged in the bill, though a negative plea, is good 
 in abatement of the fuit j as where a plaintiff in-^ 
 titles himfelf as adminiflrator, and the defendant 
 pleads that he is not adminiftrator ^ So where a 
 perfon intitling himfelf as adminiftrator of an in- 
 teftate files a bill, and the defendant pleads that the 
 fuppofed inteftate is ftill living. A plea, that the 
 defendant is not fuch perfon as alleged in the bill, is 
 alfo mentioned in the books of praflice as a plea 
 which may be fupported ^. It feems to have been 
 confulered as more convenient for a perfon, fued in 
 a character which he does not fuftain, to put in an 
 anfwcr, alleging the miftake in the bill, and praying 
 the judgment of the court, whether he fhould be 
 
 b 3 Burr. 174.1. 1 Bac Ab. '^ Prac.Reg. 476. 
 84. Alien (D.) «^ i Vern. 473. 
 
 « I Atkyns, 51, f Prac. Keg. 276. 
 
 com-
 
 ( 87 ) 
 
 compelled farther to anfwer the bill s. But this in 
 fa6l amounts to a plea. 
 
 III. A plea in bar is commonly where fome foreign 
 matter is alleged, whereby, fuppofing the bill, fo 
 far as it is not contradicted by the plea ^, to be true, 
 yet the fuit, or fome part thereof, is barred '. 
 Where there are matters alleged in the bill to which 
 the bar does not reach, or there is fome circumftance 
 relating to the matter in bar, and charged in the 
 bill, which requires a particular anfwer, as fug- 
 geftions of fraud, the defendant muft, to fuch points, 
 anfwer upon oath ''. The anfwer, in this cafe, muit 
 be full to the charges in the bill, and fufhcient to 
 fupport the plea '. For the matters fo charged will 
 be intended againft the pleader, unlefs they are 
 fully denied by the anfwer. 
 
 Pleas in bar will be firft confidered with reference 
 only to the firft fpecies of bills, and to bills of dif- 
 covery merely ; and will be afterwards treated of as 
 applied to the feveral other fpecies of bills. They 
 may be ranked under the heads of, I. Pleas of mat- 
 ters recorded, or as of record, in the court itfelf, or 
 fome other court of equity j II. Pleas of matters in 
 pais ; and III- Pleas of matters of record, or matters 
 in the nature of matters of record, in fome court, 
 not being a court of equity, either alone, or joined 
 with matters in pais. 
 
 % Car. Rep. 6i. Prac. Reg. « Prac Reg. 279. 
 e;?. •= Prac. Reg. 280. 
 
 a % Atkyns, 51. 13 Atkyns, 303, 304. 
 
 G 4 I. Pleas
 
 ( 88 ) 
 
 I. Pleas in bar of matters recorded, or as of re- 
 cord, in the court itfelf, or fome other court of 
 equity, maybe, i. a decree or order of the court, 
 by which the rights of the parties are already de- 
 termined "", or another bill for the fame caufe dif- 
 miffed "52. another fuit depending in the court, 
 or in another court of equity, between the fame 
 parties, for the fame caufe °. Pleas of this na- 
 ture generally go both to the difcovery fought, and 
 the relief prayed, by the bill. 
 
 I. A decree, determining the rights of the parties, 
 and figned and inrolled, may be pleaded to a new 
 bill for the fame matter ; and this even if the party 
 bringing the new bill was an infant at the time of the 
 former decree. For a decree inrolled can only be 
 altered upon a bill of review p. But the decree muft 
 be in its nature final, or afterwards made fo by 
 order, or it will not be a bar. Therefore a decree, 
 for an account of principal and intereft due on a 
 mortgage, and for a foreclofure in cafe of non- 
 payment, cannot be pleaded to a bill to redeem, 
 unlefs there is a final order of foreclofure 1. Nor 
 can a decree, unlefs caufe by default, be pleaded, 
 without the order to make the decree abfolute. 
 Upon a plea of this nature fo much of the former 
 bill and anfwer muft be fet forth, as is neceffary to 
 Ihcvv that the fame point was then in iflue '. A 
 
 m 3 Atkyns, Cz6, 1 2 Vefey, 450. 
 
 • I Vern. 310. *■ a Atkyns, 603. 2 Vf- 
 
 « 3 Atkyns, 587. 590. fey, 577. 
 
 t 3 Atkyns, 626, 
 
 decree.
 
 ( 89 ) 
 
 decree, difmlffing a former bill for the fame mat> 
 ter, may be pleaded in bar % if the difmifTion was 
 not, in terms, direded to be without prejudice '. 
 The decree muft be figned and inrolled, or it can- 
 not be pleaded in bar of another fuit ", though it 
 may be infilled upon by way of anfwer ". But 
 though it cannot be pleaded dire£lly in bar of the 
 fuit for want of inrolment, it might, perhaps, be 
 pleaded to fliew, that the bill was exhibited contrary 
 to the ufual courfe of the court, and ouglit not 
 therefore to be proceeded upon. For if the decree 
 appeared upon the face of the bill, the defendant 
 might demur ^ ; a decree not figned and inrolled 
 being to be altered only upon a re-hearing ^, as a 
 decree figned and inrolled can be altered only 
 upon a bill of review \ An order of difmiflion is 
 a bar only where the court determined that the 
 plaintiff had no title to the relief fought by his bill ; 
 and therefore an order difmiffing a bill for want of 
 profecution is not a bar to another bill ^ 
 
 2. A plea, of another fuit depending in the fame 
 or another court of equity, for the fame caufe % 
 muft aver that there have been proceedings in the 
 fuit J as appearance, orprocefs requiring appearance 
 
 » I Vern. 310. i Brown. z 2 Vefey, 598. 
 
 Pari. Ca. 281. a I Ch. Ca. 4+. 2 Freem. 
 
 t I Chan. Ca. 155. 179. 
 
 " 3 Atkyns, 809. " i Atkyns, 571. 
 
 X 2 Vefey, 577. *= Ord, in Ch. 98. Ed. 1739. 
 
 y 3Atkyns,8o9, 810. Bun- i Ch. Ca. 241. 3 Atkyns, 
 
 bury, 56. a Vefey, 571. 587. 590, 
 
 at
 
 ( 90 ) 
 
 «t rfie leaft *. It feems likewife regular to aver that 
 the fuit is ftill depending e ; though, as a plea of 
 this nature is not ufually argued, but, being clearly 
 a good plea, if true, is referred to the examination 
 and enquiry of one of the mafters of the court 
 as to the fatl*^, it has been held, that a pofitive aver- 
 ment that the former fuit is depending is not ne- 
 ceflary ?. For the fame reafon a plea of this kind 
 is not put in upon oath ". It is not neceflary to 
 the fufiiciency of a plea of this nature, that the for- 
 mer fuit fhould be precifely between the fame parties 
 as the latter. For if a man inftitutes a fuit, and 
 afterwards fells part of the property in queftion to 
 another, who files an original bill touching the part 
 fo purchafed by him, a plea of the former fuit de- 
 pending touching the whole property will hold '. 
 So where one part-owner of a fliip filed a bill againft 
 the hufband for an account, and afterwards the 
 fame part-owner, and the rell of the owners, filed a 
 bill for the fame purpofe, the pendency of the firft 
 fuit was held a good plea to the lafl ''. For tho' the 
 fiift bill was infufKcient for want of parties, yet by 
 the fecond bill the plaintiff was doubly vexed for 
 the fame caufc. The courfe of the court in fuch a 
 cafe feems to be, to difmifs the firft bill, and to di- 
 re6l the defendant in the fecond caufe to anfwer, 
 
 I Fq. Ca. Ab. 39. h 1 Vern, 332. 
 
 « 3 Alkyns, 589. ' i Eq. Ca. Ab. 39. 
 
 f Old. inCh. 98. Ed. 1739, "^ Durand v. Hutcliinfon, 
 
 » 1 Vern. 332. Mich. 1771. 
 
 upon
 
 ( 91 ) 
 
 Upon being paid the cods of the plea allowed i. 
 Where a fecond bill is brought by the fame perfon 
 for the fame purpofe, but in a different right ; as 
 where the executor of an adminifbrator brought a 
 bill, conceiving himfelf to be the perfonal repre- 
 fentative of the inteftatc, and afterwards procured 
 adminiftration de bonis non^ and brought another 
 bill '"; the pendency of the former bill is not a good 
 plea. The rcafon of this determination feems to have 
 been, that the firft bill being wholly irregular, the 
 plaintiff could have no benefit from it, and it might 
 have been difmiffed upon demurrer. Where a de- 
 cree is made upon a bill brought by a creditor, on 
 behalf of himfelf and all other creditors of the 
 fame perfon, and another creditor comes in before 
 the maftbr to take the benefit of the decree, and 
 proves his debt, and then files a bill on behalf of 
 himfelf and the other creditors, the defendants may 
 plead the pendency of the other fuit ; for a man 
 coming in under a decree is qiiqft a party ". The 
 proper way for a creditor in fuch a fituation to pro- 
 ceed, if the plaintiff in the original fuit is dilatory, 
 is by application to the court for liberty to conduft 
 the caufe. If a plaintiff fues a defendant, at the fame 
 time, for the fame caufe, at common law and in 
 equity, the defendant, after anfwer put in, muft 
 apply to the court that the plaintiff may make his 
 ele£lion where he will proceed, and cannot plead 
 
 1 I Chan. Ca. 241. n 3 Atkyns, 557. 
 
 w % Atkyns, 44., 
 
 the
 
 ( 9t } 
 
 the pendency of the fuit at common law in bar of 
 the fuit in equity °, though the practice was for- 
 merly otherwife ''. 
 
 II. Pleas in bar, of matters in pais only, fometimes 
 go both to the difcovery fought, and to the relief 
 prayed, by the bill, Or by fome part of it ; fome- 
 times only to the difcovery, or part of the difcovery j 
 and fometimes only to the relief, or part of the 
 relief. 
 
 Pleas of this nature which may go both to the 
 difcovery and relief fought by the bill, or by fome 
 part thereof, but which fometimes extend no far- 
 ther than the relief, are principally, i. a want of 
 title in the plaintiff; 2. a want of proper parties to 
 the fuit J 3. a ftated account ; 4. an award ; 5. a 
 releafe ; 6. a will ; 7. a purchafe, mortgage, or 
 fettlement, for a valuable confideration, without 
 notice of the plaintiff's claim. 
 
 I. A plea may be of want of title in the plaintifF, 
 by reafon of a difability either in him or in the 
 perfon under whom he claims. As if a plaintiff 
 claims as purchafer, and the defendant pleads that 
 he was a papifl, and incapable of taking by pur- 
 chafe '' ; or a plaintifF claims a real or perfonal cflate 
 accrued previous to convicftion, either of himfelf 
 or of the perfon under whom he claims, of fome 
 
 • 5 P. Wms. 90. Ill c. 60. by which this in- 
 
 p Ord.inChan.99.Ed.1739. capacity is, under certain 
 ' See, however, iS Geoi conditions, removed. 
 
 offence
 
 ( 93 ) 
 ofFence which occafioned a forfeituie •■; or previous 
 to a bankruptcy; or any other want of title = in the 
 plaintiff to the matter claimed by the bill. A plea 
 of convifStion of any offence which occafions for- 
 feiture, as manflaughter, muft be pleaded with 
 equal ftri£lnefs as a plea of the fame nature at com- 
 mon law t. Pleas of want of title in the plaintif? 
 generally extend to the difcovery fought by the bill, 
 as well as to the relief prayed ". 
 
 2. If a want of proper parties is not apparent on 
 the bill, a defendant may plead it ^ j and a plea of 
 this nature goes both to the difcovery and the re- 
 lief. But where a fufficient reafon is fuggefled by 
 the bill for not making the neceffary party; as where 
 a perfonal reprefentative is a neceffary part}'-, and 
 the bill ftates that the reprefentation is in contefl 
 in the ecclefiaftical court '' ; or where a neceffary 
 party is refident abroad, out of the jurifdiclion of 
 the court ^, and the bill charges that fa£l ; or where 
 the bill feeks a difcovery of the neceffary parties "*; 
 a plea for want of parties will not be allowed. A 
 plea for want of parties to a bill for a difcovery 
 merely will not hold ''j for the plaintiff in that 
 cafe feeks no decree. 
 
 r * Atkyns, 399. y 2 Atkyns, 51. 
 
 s Gilbert, 218 ^ Prec. in Ch. 83. 2 A?- 
 
 t 2 Atkyns, 399. kyns, 510. 
 
 " Gilb. 229. a I Vern. 95. 
 
 X 1 Vern. no. a At- i» z Eq, Ca. Ab. 170. 
 
 kyns, 51. 
 
 3. A plea
 
 ( 94 ) 
 
 3. A plea of a flated account is a good bar to a 
 bill for an account S It muft (hew that the account 
 M'-as in writing, and the balance in writing ; or at 
 leaft it muft fet forth the balance ^. If the bill 
 charges that the plaintiff has no counterpart of the 
 account, the account Ihould be annexed by way of 
 fchedule to the anfwer, that if there are any errors 
 upon the face of it, the plaintiff may have an oppor- 
 tunity of pointing them out \ If error or fraud are 
 charged, they muft be denied by the plea, as well 
 as by way of anfwer ''; and if neither error nor fraud 
 are charged, the defendant muft by the plea aver 
 that the ftated account is juft and true, to the beft 
 of his knowlege and belief ^. The delivery up of 
 vouchers at the time the account was ftated feems 
 to be a proper averment in a plea of this nature ••, 
 if the facl was fuch. 
 
 4. An avv^ard m.ay be pleaded to a bill to fet afide 
 the award, and open the account ' ; and it is not 
 only good to the merits of the cafe, but likewife to 
 the difcovery fought by the bill ''. But if fraud, or 
 partiality, are charged againft the arbitrators, thofe 
 charges muft not only be denied by way of aver- 
 anent in the plea, but the plea muft be fupported by 
 an anfwer iliewiiig the arbitrators to have been in- 
 corrupt and impartial '. 
 
 c I Vern. iSo- 2 Atkyns, i. h Gilb. on Ch 57. 
 
 " a Atkyiv 399. ' a Atkyns, 395. 5or. 
 
 • 3 Atkyns, 30J. ''3 Atkyns, 529, 644.. 
 
 ' Gilb. oil Cli 56. 1 » Atkyns, 396. 501. 
 « 3 Atkyns, 70. 
 
 5. In
 
 ( 93 ) 
 
 5. In a plea of a releafe " the defendant mud fet 
 out the confideration upon which the releafe was 
 made. If a releafe is pleaded to a bill for an 
 account, it muft be under feal j otherwife it muil 
 be pleaded as a ilated account only ". 
 
 6. To a bill brought, upon fome ground of equit}'', 
 by an heir at law againit a devifee, to turn the 
 devifee out of pofleflion, the devifee may plead the 
 will, and that it was duly executed, and ought to 
 prevail, until upon an ilVue at law it fliould be 
 found to be otherwife °. But if the bill prays a 
 receiver, and the plea goes to that part of the bill, 
 it will be fo far over-ruled -, as it may be neceffary 
 for the court in the progrefs of the caufe to appoint 
 a receiver p. 
 
 7. A plea of purchafe for a valuable confideration, 
 or of a mortgage without notice of the plaintiff's 
 title, is a bar to a fuit in equity ">. Such a plea 
 mufl aver, that the perfonwho conveyed, or mort- 
 gaged, to the defendant, was feifed in fee, or pre- 
 tended to be feifed ■■, and was in pofleilion =, if the 
 conveyance purported an immediate transfer of the 
 pofleffion, at the time when he executed the pur- 
 
 m a Vefey, 108. Hardres, ^ 3 Afkyns, 17. and Mea- 
 
 168. clows V. (iuchefs of Kingfton. 
 
 n Gilb. on Cb. 57. But fee z Vei'ey, 36s, 363. 
 
 o 3 Aticyns, 17. Anltis v. q 2 Atkyns, 397. 630. a 
 
 Dovvfing, cited * Vefey, 361. Ventris, 361. 
 
 Meadows y. duchefs of King- ^ , p Wins. 281. 
 
 fton, Mich. 1777. = j Vern. 246. 
 
 chafe.
 
 ( 96 ) 
 chafe or mortgage deed t. It muft aver a convey- 
 ance, and not articles merely " ; for if there are 
 articles only, and the defendant is injured, he muft 
 fue at law upon the covenants in the articles ". It 
 muft aver the confideration, and the adlual payment 
 of it j for if it is only fecured to be paid it is not 
 fufhcient y. The plea muft alfo deny notice of the 
 plaintiff's title, or claim '', previous to the execution 
 of the deeds, and payment of the confideration ' ; 
 and the notice fo denied muft be notice of the 
 exiftence of the plaintiff's title, and not merely no- 
 tice of the exiftence of a perfon who could claim 
 under that title ^. If particular inftances of notice 
 or circumftances of fraud are charged, they muft 
 be denied as fpecially and particularly as charged in 
 the bill '^. This fpecial and particular denial, of 
 notice or fraud, muft be by way of anfwer, that 
 the plaintiff may be at liberty to except to its fuffi- 
 ciency ''. But notice, and fraud, muft alfo be de- 
 nied, generally, by way of averment in the plea ; 
 otherwife the fa£l of notice, or of fraud, will not 
 be in iffue '. Notice, or fraud, thus put in iffue, 
 
 if 
 t 3 P. Wir.s. 281. '1 1 Vern. 185. 
 
 u 3 P. Wms. :"^i. ' 3P. Wms. 95. Gilb. on 
 
 X , Aikyns, 5:1. Cli. 58. Coiitr. 3 P. Wms. 
 
 y 3 Atkyns, 304. 814. 244. Inthe cnfe of Meadows 
 
 X I Vern. 179. v.diicliersoFKinglton.Mich. 
 
 » 1 Cli. Ca. 34 a Atkyns, 177-', the cl\ancellor feemed 
 631. 3 Atkyns, 304. to be of opinion, that no- 
 
 " I Atkyns, 522, tice, and fraud, were to be 
 
 t 3 Atkyns, 815. 2 Ve- denied by way of averment 
 ley, 450. inthe plea, in cafes only 
 
 whcrq
 
 ( 97 ) 
 Improved, will efFe£lualIy open the plea on the hear- 
 ing of the caufe. A purchafor with notice, of a 
 purchafor without notice, may flielter himfelf under 
 the firft purchafor ^ But notice to an agent is no- 
 tice to the principal s ; and where a perfon, having 
 notice, purchafed in the name of another who had 
 no notice, and knew nothing of the purchafe, but 
 afterwards approved it, and without notice paid the 
 purchafe-money, and procured a conveyance •, the 
 perfon firft contracting was confidered from the be- 
 ginning as the agent of the adlual purchafor, who 
 was therefore held afFe£ted with notice *". A fettle- 
 ment in confideration of marriage is equivalent to 
 a purchafe for a valuable confideration, and may be 
 pleaded in the fame manner '. If a fettlement is 
 made after marriage, in purfuance of an agreement 
 before marriage, the agreement, as well as the fettle- 
 ment, muft be fhewn ^. A widow, defendant to a 
 fuit brought by any perfon claiming under her huf- 
 band, to difcover what lands fhe is in pofil^fllon of, 
 and what is her title, may plead her fettlement in 
 bar to any difcovery, unlefs the plaintiff ofi^ers ^, and 
 
 where the denial made part kyns, 571. 1 Atkyns, 139. 
 
 of an equitable defence; as 24.^. 
 in a plea of purchafe for va- « 2 Vern. 574. 
 luable confideration, thede- '' i Brown. Pari. Ca. 244. 
 
 iiial of noiice muft be by way 2 Bro.vn. Pari. Ca. 596. 
 of averment in the plea, be- * Rep. Temp. Finch, 9. 
 caufe the want of notice ^ i Vern. 139. 
 creates the equitable bar. 1 2 Vefey, 450. 
 
 f Prec. in Ch. 51. j At- 
 
 H 15
 
 ( 9» ) 
 
 is able, to confirm her jointure. But a plea of this 
 nature muil fet forth the fettlement, and the lands 
 comprized in it, with fufEcient certainty •". A plea 
 of purchafe for a valuable confideration protects a 
 defendant from giving any anfwer to a title fet up 
 by the plaintifFj but a plea of bare title only, with- 
 out fetting forth any confideration, is not fufficient 
 for that purpoie ". Upon a plea of purchafe for a 
 valuable confideration, to a difcovery of deeds and 
 writings, the purchafe deed mull be excepted ; for 
 it is pleaded o. 
 
 Upon a fsmilar ground, if a bill is filed for difco- 
 very of goods purchafed of a bankrupt, the defend- 
 ant may plead that he purchafed them bonajlde^ for 
 a valuable eoufideration, paid before the commifilon 
 of bankrupt was fued out, and before he had any 
 notice of the bankruptcy p. 
 
 Pleas in bar, of matters hi pais only, which ex- 
 tend no farther than the difcovery fought by the 
 bill, or by fome part thereof, maybe, i. that the 
 difcovery may fubjetl the defendant to pains and 
 penalties-, 2. that it may fubjedl; him to a forfeiture, 
 or fomething in the nature of a forfeiture •, 3. that 
 it would betray the confidence repoled in a coun- 
 fel, attorney^ or arbitrator. And any other matter, 
 which may finew that the defendant ought not to 
 
 "> I Atkyn!^52. ^ z Chan. Ca. 72, 73. 1 
 
 " a Atkyns, a+i. Vern. 27. 
 
 o I Vcfey> 107. 
 
 bf
 
 ( 99 ) 
 
 he compelled to make the cUfcovery fought, for fimi- 
 iar rcafons, may be pleaded in like manner. 
 
 I. It has been already obferved, that no perfon Is 
 bound to anfwer fo as to fubjedl himfelf to punifh- 
 ment, in whatever manner that punilliment arifes, 
 or whatever is the nature of the punifliment '^. If, 
 therefore, a bill requires an anfwer which may fub- 
 ]e€t the defendant to any pains or penalties, or tend 
 to accufe him of any crime, and this is not fo appa- 
 rent upon the face of the bill that the defendant 
 can demur, he may by plea fet forth by what means 
 he may be liable to punifliment, and infill he is not 
 bound to anfw^er the bill, or fo much thereof as 
 the plea will cover ^ Thus if a bill is brought for 
 difcovery of a marriage, where the fa£l:, if true, 
 may fubje6l the party to punifliment in the ecclefi- 
 aflical court for inceft, the defendant may plead the 
 matters to fhew that the marriage, if real, was in- 
 ceftuous, and would fubjc£l: the parties to pains and 
 penalties ^. But if the difcovery fought is not of a 
 fa£l w^hich can fubjecl the defendant to any penalty, 
 though connected with fome other fa£l which may 5 
 as where a queftion is, whether the defendant has 
 a legitimate fon ; the defendant is bound to anfwer. 
 For the difcovery of that fa£l cannot fubje6l him to 
 a penalty, though the difcovery of his marriage 
 
 <> Pag. 64. See a Vefey, '' j Vern. 110. 
 34.5. I Vein. 109, « 2 Vefey, 243. 
 
 H 2 with
 
 ( 100 ) 
 
 with the mother of the fon may j and therefore he 
 fhall not be compelled to difcover the marriage '. 
 
 2. It has been alfo already " obferved, that no per- 
 fon is bound to anfwer fo as to fubjeft himfelf to 
 any forfeiture, or to any thing in the nature of a 
 forfeiture *. If this is not apparent on the bill, the 
 defence mufl be made by way of plea. But fuch a 
 plea will only bar the difcovery of the facl which 
 would occafion a forfeiture. Therefore, where a 
 tenant for life pleaded, to a bill for difcovery whether 
 he was tenant for life or not, that he had made a 
 leafe for the life of another, which, if he was te- 
 nant for his own life only, might occafion a for- 
 feiture, the plea was over-ruled ^. So upon a bill 
 charging the defendant to be tenant for life, and 
 that he had committed wafte, he may plead to the 
 difcovery of the a£l which would occafion the for- 
 feiture, the wafte 5 but he cannot plead to the dif- 
 covery whether he was tenant for life, or not ^. 
 So upon a bill to difcover whether the defendant 
 was an alien, and whether her child was an alien, 
 r.nd where born, it was held the defendant was not 
 bound to difcover whether flie was herfelf an alien, 
 but flie was compelled to difcover whether her child 
 was an alien, and where born \ In all cafes of for- 
 feiture, if the plaintiff is intitlcd alone to the benefit 
 of the forfeiture ", and waives it by his billj^ the de- 
 
 t X Vefey, 493. "^ n Vefey, 1C9. 
 
 u Pag. 66. ^ * Vefey, 494.. 
 
 X 1 Atkyns, 516. * Mofely, 75. 
 Y 2 Vefey, 108. 
 
 fendant
 
 { loi ) 
 
 fendant will be compelled to make the difcovefy 
 required. And though the plaintiff is not intitled 
 to the benefit of the forfeiture, yet if the defendant 
 has by his own agreement bound himfelf not to 
 infift on being proteiSled from making the difcovery, 
 the court will compel him to make it ". 
 
 3. If a bill feeks a difcovery of a fa£l from one 
 whofe knowlege of the fa£t was derived from the 
 confidence repofed in him as a counfel, an attorney, 
 or an arbitrator, he may plead, in bar of the dif- 
 covery, that his knowlege of the fa£l was fo ob- 
 tained ^. 
 
 III. Pleas in bar, of matters of record, or of mat- 
 ters in the nature of matters of record, in fome 
 court not being a court of equity, either alone, or 
 joined with matters in paisy likewife extend fome- 
 times both to the difcovery, and the relief, fought 
 by the bill, or by fome part thereof; fometimes 
 only to the difcovery, or part of the difcovery ; and 
 fometimes only to the relief, or part of the relief. 
 
 Pleas of this nature may be, i. a fine, and non- 
 claim : 2. a recovery, and the deed to lead, or de- 
 clare, the ufes thereof : 3. a judgment at law, or 
 fentence of fome other court : 4. fome flatute ; as 
 the ftatute of frauds, and perjuries ; the flatute of 
 limitations ; or any other flatute which is a bar to 
 the demands of the plaintiff. 
 
 <= Mofely, 77, and the d , Ch. Ca. 277. 
 f:afes there cited. 
 
 H3
 
 ( loa ) 
 
 I. A plea of a fine arid non-claim, though a legal 
 bar, yet is equally good in equity *, provided it is 
 pleaded with proper averments '. Where a title is 
 merely legal, though the defedl is apparent upon 
 the face of the deeds, yet the fine will be a bar in 
 equity, and a purchafor will not be afFe£led with notice 
 fo as to make him a truftee for the perfon who had 
 the right. For a defeat upon the face of title deeds 
 is often the occafion of a fine being levied s. And 
 even a fine levied upon bare poffeflion, with non- 
 claim, may be a bar in equity, if a legal bar, though 
 with notice at the time the fine was levied ''. But 
 with refpedl: to equitable titles there is a diftinflion. 
 For where the equity charges the lands only, the 
 fine bars. But where it charges the perfon only, 
 in refpc6l of the land, it does not bar '. Therefore 
 if a man purchafes from a truftee, and levies a fine, 
 he fl:ands in the place of the feller, and is as much 
 a truftee as the feller was " ; provided he has notice 
 of the truft, or is a purchafor without confidera- 
 tion '. So if the grantee of a mortgagee levies a 
 fine, that will not difcharge the equity of redemp- 
 tion ■". But there are cafes, both of legal and equit- 
 able titles, in which a fine and non-claim will bar, 
 
 e W. Jones, 416. 1 Ch. ' i Ch. Ca. 278. a At- 
 
 Ca. 278. kyns, 390, 
 
 f z Atkyiis, 631. 3 At- " » Atkyns, 631. 
 
 kyns, 303. ' Gilb. on Ch. 62. 
 
 e * Atkyns, 631. " a Atkyns, 631. Contr, 
 
 h 1 Atkyns, 240. i Freem. 21. 69, 
 
 notwith-
 
 ( 103 ) 
 ttotwithftanding notice at the time of levying the 
 fine ". If a fine is levied where the legal eftatc 
 is in truflees for an infant, and the truftees neglecfl 
 to claim, the infant, claiming by bill within five 
 years after he attains twenty-one, fnall not be 
 barred «>. But, perhaps, this fhould be underflood as 
 referring to the cafe of a fine levied with notice of 
 the title of the infant'. Where a title to lands is 
 merely equitable, as In the cafe of an agreement to 
 fettle lands to particular ufes, claim to avoid the 
 fime mull be h'Y fubpoena "J. The pendency of a fuit 
 in equity will, therefore, in equity, prevent the 
 running of a fine >■. Upon the whole, wherever a 
 perfon comes in by a title oppofite to the title to a 
 truft eftate ; or comes In under the title to the trufl 
 cftate, for a valuable confuleratlon, without fraud, 
 ■or notice of fraud, or of the trufl ; a fine and non- 
 claim may be fet up as a bar to a claim of a truft ■. 
 When a fine and non-claim are fet up as a bar to a 
 claim of a truft, by a perfon claiming ander the 
 fame title, it is not fufficlent to aver, that, at the 
 lime the fine was levied, the feller of the eflate, 
 being feifed, or pretending to be feifed, conveyed ; 
 but It Is neceflary to aver, that the feller was actu- 
 ally feifed. It is not, Indeed, requlfite to aver, that 
 the feller Wios feifed in fee •, an averment that he 
 
 ° 2 Atkyns, 631, 3 At- 1 i Ch. Ca. 278. 1 Freem. 
 
 kyns, 303. 560. ai' 
 
 o z Vern. 368. "■ a Atkyns, 389. 90. 
 
 P 3 P. Wms. 309. 310. ' Gilb. on Ch. 63. 
 
 H 4 "was
 
 ( 104 ) 
 
 was feifed tit de lihero tefjementoy and being fo feifed, 
 a fine was levied, will be fufficient '. A fine and 
 non-claim may be pleaded in bar to a bill of revie-w ^ 
 
 2. To a claim under an entail, a recovery duly 
 fuiFered, with the deed to lead the ufes of that re- 
 covery, may be pleaded ;' if the eftate limited to 
 the plaintiff, or under which he claim.s, is thereby 
 deflroyed. 
 
 3. To a bill to fet afide a judgment, as obtained 
 againft confcience, the defendant may plead the 
 verdi£l, and judgment, in bar ". But if there is 
 any charge of fraud, or any circumftance fhewn as 
 a ground for relief, the judgment cannot be plead- 
 ed ; unlefs the fraud, or other circumftance, the 
 ground upon which the judgment is fought to be 
 impeached, be denied, and thus put in iflue by the 
 plea. A fentence in a foreign court may be a proper 
 defence by way of plea j but the court pronouncing 
 the fentence muft at leaft have full jurifdidlion to 
 determine the rights of the parties ". Upon the 
 fame ground, plea of a will and probate in the 
 proper ccclefiallical court, is a good plea to a bill 
 by perfons claiming as next of kin of a pcrfon fup- 
 pofed to have died inteftate ^ Even if fraud in ob- 
 taining the will is charged, that is not a fulTicient 
 equitable ground to impeach the probate ; for the 
 parties may refort to the ecclefiaftical court, which 
 
 » 2 Atkyns, 630. " " 3Atkyns, 215. 
 
 ' 2 Vern. 190. " i Vern. 397. 
 
 " 3 Atkyns, a23. 
 
 is
 
 ( ^OS ) 
 is competent to determine of the fraud z. But where 
 the fraud prac1:ifed has not gone to the whole will, 
 but only to fome particular claufe ; or if the fraud 
 has been pra£lifed to obtain the confent of the next 
 of kin to the probate ; the courts of equity have 
 laid hold of thefe circumftances to declare the exe- 
 cutor a truftee for the next of kin ^. Where there 
 are no fuch circumftances, the probate of the will 
 is a clear bar to a demand of perfonal eftate ; and if 
 the teftator died in a foreign country, and left no 
 goods in any other country, probate of the will ac- 
 cording to the law of that country is fufhcient ''. 
 
 4. To a bill for difcovery of a truft, the ftatute 
 of frauds and perjuries % with an averment that 
 there was no declaration of truft in writing, may 
 be pleaded ''. The fame ftatute, with an averment 
 that a will was not duly executed as required by 
 the ftatute, is a good plea to a bill brought by a 
 devifee, claiming under the will. To a bill for a 
 fpecific performance of an agreement, the fame 
 ftatute, with an averment that there was no agree- 
 ment in writing, figned by the parties, may be 
 pleaded ^. But in all thefe cafes, if any matter is 
 charged by the bill which may avoid the bar created 
 
 = 2 Vern. 8. 76. 2 Ch. 203. i Vefey, 284. 
 
 Ca. 178. 1 P. Wms. 389. Is I Vern. 397. 
 
 2 P. Wms. 286. Meadows ^ 29 Car, II. c. 3. 
 
 V. duchefs of Kingfton, Mi- " 2Atkyns, 156. 
 
 chaelmas 1777. ^ Free, in Ch. 40s. 533. 
 3 J Strange, 666. Gilb. 
 
 by
 
 ( io6 ) 
 
 by the ftatute, that matter muft be denied, gene- 
 rally, by way of averment in the plea *, and it muft 
 be denied, particularly, and precifely, by way of 
 anfwer to fupport the plea. The ftatute of limita^ 
 lions f is likewife a good plea *. But if a bill 
 charges a fraud, and that the fraud was not difco- 
 vered till within fix years before filing the bill, the 
 ftatute is not a good plea, unlefs the defendant 
 denies the fraud, or avers that the fraud, if any, 
 was difcovered fix years before filing the bill ". 
 And though the ftatute of limitations is a bar to the 
 claim of a debt, it is not to a difcovery when the 
 debt became due j for if that is fet forth, it will 
 appear to the court whether the time limited by 
 the ftatute is elapfed '. Where a particular fpecial 
 promife is charged to avoid the operation of the 
 ftatute, the plaintiff muft deny the promife charged 
 by averment in the plea ^^ as well as by anfwer to 
 fupport the plea. Where the demand is of any 
 thing executory, as a note for payment of an annu- 
 ity, or of money at a diftant period, or by inftal- 
 ments, the defendant muft aver that the caufe of 
 action hath not accrued within fix years j becaufe 
 the ftatute bars only as to what was adually due fix 
 years before the action brought '. Upon a bill for 
 difcovery of a title, charging fraud, and praying 
 
 ' 21 Ja. I. c. 16. *> 3P- Wms. 14.3. 
 
 g 3 P. Wms. 309. 2 At- « 2 Atkyns, 51. 
 
 kyns 395. GJlb. on Ch. ^ 3 Atkyns, yo. 
 
 61. '3 Atkyns, .71. 
 
 pofleflion,
 
 ( to7 ) 
 
 pofleflion,the ftatute of limitations alone is not agood 
 plea to the difcovery ; for the defendant muft an- 
 fwer to the charge of fraud ">. The ftatute of 
 limitations may be pleaded to a bill to redeem a 
 mortgage, if the mortgagee has been in poffeffion 
 twenty years " -, and indeed a demurrer has been 
 allowed in this cafe, where the pofleflion has ap- 
 peared upon the face of the bill ', though later cafes 
 feem to be to the contrary p. To a bill, on an equit- 
 able title to prefentation to a living, feeking to 
 compel the defendant to refign, plenarty for fix 
 months before the bill was filed may be pleaded in 
 bar ; the ftatute of Weftminfter 2 ^ being confider-^ 
 ed for this purpofe as a ftatute of limitation, in bar 
 of an equitable, as well as of a legal, right '. But 
 if a qtiarc impedit is brought before the fix months 
 are expired, though the bill is filed after, it may 
 be in fome cafes a ground for tie court to inter- 
 fere ', and confequently the plen?.'-ty would not in 
 fuch cafes be pleadable in bar. 
 
 In the fame manner, any other ftatute, which 
 may be a bar to the demands of the plaintiff, may 
 be pleaded, with the averments neceflary to bring 
 the cafe of the defendant within the ftatute, and 
 to avoid any equity which may be fet up againft 
 the bar created by the ftatute. And if a difcovery 
 
 m 3 Atkyns, 558. '^ 13 Edw. I. c 5. 
 
 " 3 Atkyns, 225. f 2 P. Wms. 404. 3 At- 
 
 « 3 P. Wms. 287. Note B^ kyns, 459. 
 p 3 Atkyns, 225, 226, and ' a P. Wms 405. 
 the authorities there cited. 
 
 is
 
 ( io8 ) 
 
 is fought "which may fubje6l the defendant to the 
 penalties of any ftatute, he may plead that ftatute 
 in bar of the difcovery. Thus where a bill fought 
 a difcovery, whether the defendant had- become a 
 purchafor of an eftate, of which the fuppofed feller 
 was not in pofTeffion, the defendant pleaded the fta- 
 tute of 32 Hen. VIII. c. 9. againfl felling, or con- 
 tra(Sling to fell, any pretended rights or titles K 
 So where a bill was brought by infurers, for a dif- 
 covery of what goods had been fhipped on board a 
 veffel, the defendant pleaded the ftatutes which 
 make it penal to export wool. He was however 
 dirc6led to anfwer fo far as to difcover what goods 
 were on board the veflel befides wool ". In the 
 fame manner, flatutes which occafion forfeitures, 
 or any thing in the nature of a forfeiture, may be 
 pleaded. Thus to a bill, feeking a difcovery, whe- 
 ther a perfon under whom the defendant claimed, 
 was a papift, the defendant pleaded his title, and 
 the ftatute of 11 and 12 Will. III. difabling papifls". 
 Pleas in bar have been hitherto confidered with 
 reference only to the two kinds of bills mofl com- 
 mon in pra£l:ice. The fame grounds of plea will 
 likewife hold in many cafes to the feveral other 
 kinds of bills, according to their refpe^live na- 
 tures, except to a certiorari bill ''. But fome of 
 
 Rep. 66. where a plea, to a 
 certiorari bill, of a decree in 
 the inferior court, is ftien- 
 tioned. 
 
 the 
 
 t 3 P. Wms- 
 
 375- 
 
 
 " I Aikyns, 
 
 5^ 
 
 
 X I Atkyns, 
 
 526. 
 
 528. 2 
 
 Vefcy, 389. 
 
 
 
 y See, however, 
 
 3 Chan,
 
 ( 109 ) 
 
 the other kinds of bills admit of a peculiar defence 
 by way of plea. 
 
 Thus, to a bill of interpleader, if the plaintiff, or 
 either of the defendants, has no right, both of the 
 defendants in the firft cafe, and the defendant hav- 
 ing right in the fecond, may plead the matter ne- 
 ceffary to fliew that the plaintiff, or the other de- 
 fendant, has no right ; and, confequently, either 
 that there is no fubjeO; of interpleader, or that the 
 plaintiff has no right to compel the defendants to 
 interplead. 
 
 To a bill to perpetuate the teftimony of witneffes, 
 the defendant may plead any thing which fhews 
 that the plaintiff has no intereft in the matter to 
 which he prays liberty to examine, or that the de- 
 fendant has an equal title to the proteclion of a 
 court of equity. As if a bill is brought to perpe- 
 tuate the teftimony of witneffes to a will, and the 
 defendant pleads a fubfequent will, or that he is a 
 purchafor for a valuable confideration without no- 
 tice of the will ^; or that the matter, to which the 
 plaintiff prays leave to examine his witneffes, is 
 capable of being immediately tried at law, and that 
 the plaintiff has not eftablifhed his right at law a. 
 
 If a bill of revivor is brought, without fufficient 
 caufe to revive the fuit againft the defendant, and 
 this is not apparent on the bill, the defendant m.ay 
 plead the matter neceffary to {hew that the plaintiff 
 
 « J Vern. 354, a i Vern. 304. 31a. 
 
 is
 
 ( no ) 
 
 is not intitled to revive the fult againft him ^ Or 
 if the plaintiff is not intitled to revive the fuit at 
 all, though a title is ftated in the bill, fo that the 
 defendant cannot demur, the objeftion to the plain- 
 tiff's title may alfo be taken by way of plea. If a 
 fupplemental bill is brought upon matter which 
 arofe before the original bill was filed, and this is 
 not apparent on the bill, the defendant may plead 
 that fa£l. Bills in the nature of bills of revivor and 
 fupplement are liable to the fame pleas. 
 
 A crofs bill differing in nothing from the firfl 
 fpecies of bills, with refpedl to which pleas in bar 
 have in general been confidered, except that it is 
 always occafioned by a former bill, it is not liable 
 to any plea which will not hold to the firft fpecies 
 of bills. And a crofs bill is not liable to fome pleas 
 which will hold to the firft fpecies of bills -, as 
 pleas to the jurifdiclion of the court, and pleas to 
 the perfon of the plaintiff, the fufficiency of which 
 feem both afiirmed by the original bill ; unlefs the 
 crofs bill is exhibited in the name of fome perfon 
 alone, who is alone incapable of inflituting a fuit, 
 as an infant, a feme covert, an idiot, or a lunatic. 
 
 It has been already mentioned '^, that a part of 
 the conftant defence to a bill of review, for error 
 apparent on a decree, is by a plea of the decree <>. 
 Where any matter beyond the decree, as length of 
 time, a purchafe for a valuable confideration, or 
 
 f" 3 P. Wms, 34S. <> I Vern. 39s. Nelfon's 
 
 " ''ag 73- l^ep. 53< 
 
 anv
 
 ( III ) 
 
 any other matter, is to be offered againft opening 
 of the inrolment, that matter mull alfo be pleaded ^ 
 A bill of review, upon the difcovery of new mat- 
 ter, feems liable to any plea which would have 
 avoided the effe£l of that matter, if charged in the 
 original bill. Supplemental bills in the nature of 
 bills of review feem to be in the fame fituation ; 
 and if the matter alleged to have been difcovered 
 fince the decree, came to the plaintiff's knowlege 
 before the decree, the defendant to the bill may 
 plead this fa6t in bar *". If a decree is fought to be 
 impeached on the ground of fraud, the proper de- 
 fence feems to be a plea of the decree, accompa- 
 nied by a denial of the fraud charged s. 
 
 If a plaintiff, filing a bill to carry a decree into 
 execution, has no right to the benefit of the decree, 
 the defendant may plead the fa£l:, if it is not fo 
 apparent on the bill as to admit of a demurrer. 
 
 A bill, filed by the direction of the court, for the 
 purpofe of obtaining its decree touching fome mat- 
 ter not in iffue by a former bill, is not likely to be 
 expofed to a defence by plea, as it is generally 
 confidered by the court before it is dire£led to be 
 brought. But in its nature it is open to almoft every 
 plea already mentioned, except, perhaps, pleas to the 
 jurifdi£l:ion of the court, and to the perfon of the 
 plaintiff. Indeed if the bill is miflakenly brought 
 
 ' 2 Vefey, 109, « i Brown. Pari. Ca, 414, 
 
 f % Atkyns, 40. 
 
 • in
 
 ( 112 } 
 
 in the name of a perfon alone, who is alone in- 
 capable of inftituting a fuit, a plea to the perfon 
 of the plaintiff will hold. 
 
 Having thus confidered fome of the principal 
 grounds upon which pleas may be fupported, it 
 may be proper to obferve fome particulars which 
 are necelTary to be attended to in framing pleas in 
 general. 
 
 In pleading there mull be the fame ftriftnefs in 
 equity as at law h j at leaft in matter of fubftance. 
 A plea in bar mull follow the bill, and not evade 
 it, or miftake the fubje6l of it '. It m.uft be ad 
 idem ". A plea may be bad in part, and not in the 
 whole '. This, however, muft be underftood with 
 exceptions *". If a plea does not go to the whole 
 bill, it muft exprefs to what part of the bill the de- 
 fendant pleads ; and therefore a plea, to fuch parts 
 of the bill as are not anfwered, muft be over-ruled, 
 as too general ". So if the parts of the bill, to 
 which the plea extends, are not clearly and pre- 
 cifely exprefled ; as if a plea is general, with an 
 exception of matters after mentioned, and is ac- 
 companied by an anfwer; the plea is bad. For 
 the court cannot judge what the plea covers, with- 
 out looking into the anfwer, and determining whe- 
 ther it is fuflicient or not, before the validity of the 
 plea can be confidered ''. 
 
 h 2 Atkyns, 631. •" i Vefey, 105. 
 
 i Bunb. 70. " 3 Atkyns, 70. Mofe- 
 
 y- z Atkyns, 603. ly, 40. 
 
 1 1 Atkyns, 53. " aVcfey, 108. 
 
 A pica
 
 ( 113 ) 
 A plea muft aver fadls to which the plalntlfF may 
 reply, and not, in the nature of a demurrer, reft 
 on faiSls in the bill p. This, however, is not a 
 very drift rule; and where a matter, though ground 
 of demurrer, is negative ; as the want of the ufual 
 affidavit to a bill for difcovery of deeds, and for re- 
 lief ; it may, though perhaps not regularly, be 
 pleaded. The averments in a plea ought, in ge- 
 neral, to be pofitive. But in fome cafes a defend- 
 ant has been permitted to aver according to the 
 bell of his knowlege and belief-, as that an account 
 is juft and true ^ And in all cafes of negative aver- 
 ments, and of averments of fa£ls not within the 
 immediate knowlege of the defendant, it may feem 
 improper to require a pofitive afl'ertion. But unlefs 
 the averment is pofitive, the matter in iflue appears 
 to be, not the fact itfelf, but the defendant's belief 
 of it. And the confcience of the defendant is faved 
 by the nature of the oath adminillered ; which is, 
 that fo much of the plea as relates to his own adls 
 is true, and that fo much as relates to the a6ls of 
 others he believes to be true. All the fa£l:s necef- 
 fary to render the plea a complete equitable bar to 
 the cafe made by the bill, fo far as the plea extends, 
 that the plaintiff may take ifiue upon it % mufb be 
 clearly and diftin6lly averred. Averments are like- 
 wife neccffary, to exclude intendments which would 
 Otherwife be made againll the pleader; and the 
 
 P 3 Atkyns, 558. s Qilb. on Ch 58. 
 
 rjAtkjnSjyo. 'I'othill, 70. 
 
 I aver-
 
 { H4 ) 
 
 averments inuft be fufficient to fupport the plea ♦, 
 If there is any charge in the- bill, which is an equit- 
 able circumflance in favour of the plaintiff's cafe 
 againft the matter pleaded ; as fraud, or notice of 
 title ; that charge muflbe denied by way of anfwer, 
 as well as by averment in the plea. In this cafe 
 the anfwer muft be full and clear, or it will not be 
 effedlual to fupport the plea " ; for the court will 
 intend the matters fo charged againll the pleader, 
 unlefs they are fully and clearly denied ". Though 
 the court, upon argument of the plea, may hold 
 thefe charges fulRciently denied by the anfwer to 
 exclude intendments againft the pleader, yet if 
 the plaintiff thinks the anfwer to any of them ia 
 evafive, he may except to the fufBciency of the an- 
 fwer in thofe points. A defendant may alfo fupport 
 his plea by an anfwer touching any thing not charged 
 by the bill, as notice of a title, or fraud. For by 
 fuch an anfwer nothing is put in iffue covered by 
 the plea from being put in iffue '', and the anfwer 
 can only be ufcd to fupport, or difprovc, the plea> 
 But if a plea is coupled with an anfwer to any part 
 of the bill covered by the plea, and which confe- 
 quently the defendant by the plea declines to an- 
 fwer, the plea will upon argument be over-ruled ^. 
 If the plaintiff conceives a plea to be defecflive in 
 poiiit of form, or fubftance, he may take the judge- 
 incnt of the court upon its fufficiency. And if the 
 
 I 2 Vefey, 345- »8s. 
 
 " 3 Atkyiis, jo|, 815. 3 ^ Gilb. on Ch. 58, 59. 
 
 P. Wms. I4S- 3 l^i^*".''^'"). 'a Atkyns, 155. Gilb, 
 
 P« 373. 374- on Ch. 58. 
 
 * a Atkyns, 24.1. Gilb. 
 
 pica
 
 ( IIS ) 
 
 plea is allowed upon argument ; or the plaintifF, 
 without argument, thinks it, though good in form 
 and fubftance, not true in point of fa£l ; he may- 
 take iffue upon it, and proceed to difprove the faiSts 
 upon which it is endeavoured to be fupported ^ For 
 if the plea is, upon argument, held to be good in 
 law i or the plaintifF admits it to be fo by replying 
 to it j the truth of the plea is the only fubjedl of 
 queftion remaining, fo far as the plea extends ; and 
 nothing but the matters contained in the plea, as 
 to fo much of the bill as the plea covers, is in iflue 
 between the parties K If, therefore, iflue is thus 
 taken upon the plea, the defendant muft prove the 
 fadlis it fuggefts. If he fails in this proof, fo that 
 at the hearing of the caufe the plea is held to be no 
 bar, the plaintiff' is not to lofe the benefit of the 
 difcovery fought by the bill, but the court will order 
 the defendant to be examined on interrogatories, 
 to fupply the defeft \ But if the defendant proves 
 the truth of the matter pleaded, the fuit, fo far as 
 the plea extends, is barred ; even though the plea 
 is not good, either in point of form or fubftance. 
 Therefore if a defendant pleads a purchafe for a 
 valuable confideration, and omits to deny notice, 
 and the plaintiff replies; the plea, though irregular, 
 is admitted to be good, and the fact of notice not 
 being in ilTue, the defendant, proving what he has 
 pleaded, is intitled to have the bill difmiffed *•. 
 
 a Prac. Keg. aSj. <: Nelf. Rep. 119. 
 
 b 3 P. Wms, 95. Prec. d 3 p. Wms. 94, 95. 
 
 in Ch. 58. I Ch. Rep. 174. 
 
 I 2 If
 
 ( II6 ) 
 
 If a plea requires an anfwer to fupport it, upon 
 argument of the plea the anfwer may be read to 
 counterprove the plea ; and if the defendant appears 
 not to have fufficiently fuppoited his plea by his 
 anfwer, the plea muft be over-ruled, or ordered to 
 Hand for an anfwer only % A plea is ufually order- 
 ed to ftand for an anfwer, where it ftates matter 
 which may be a defence to the bill, though perhaps 
 not proper for a plea, or informally pleaded. But 
 if a plea ftates nothing •which can be a defence, it 
 is merely over-ruled. If a plea is ordered to {land 
 for an anfwer, it is allowed to be a fufhcient 
 anfwer to fo much of the bill as it covers '^j unlefs by 
 the order liberty is given to except ?. But that 
 liberty may be qualified, fo as to protect the 
 defendant from any particular difcovery which he 
 ought not to be compelled to make ^. And if a plea 
 is accompanied by an anfwer, and is ordered to 
 ftand for an anfwer, without liberty to except, the 
 plaintiff may yet except to the anfwer, as infulli- 
 cient to the parts of the bill not covered by the 
 plea '. If a plea, accompanied by an anfwer, is 
 allowed, the anfwer may be read, at the hearing of 
 the caufe, to counterprove the plea ''. 
 
 There are fome pleas which are not ufually ar- 
 gued ' ; but, being clearly bars, if true, either they 
 are j)leaded with fuch circumilanccs that their 
 
 •• -^ Aikyn% 304. ^ 2 Atkyns, -241. 
 
 f Mole!y, 74. ' MoCeley, 74. 
 
 « 3 Atkyns, 815. 3 P. "^ 3 Atkyns. 303. 
 Wms 239. ' Ord. in Ch 98. Ed. 1739,. 
 
 truth
 
 ( "7 ) 
 truth cannot be difputed, or, being mere rrtatter of 
 faft, they are referred to one of the mafters of the 
 Court to inquire into the truth of the fafl:. Such 
 are pleas of outlawry, or excommunication, which 
 are always pleaded ful?Jigi//o. Pleas of a former de- 
 cree "", or of another fuit depending ", are generally 
 in the fame predicament, being referred to a mafter 
 to inquire into the fa^. If, in any of thefe cafes, 
 the mailer reports the fact true, the bill Hands in- 
 ilantly difmiffed, unlefs the court otherwife orders °. 
 But the plaintiff may except to the mailer's report, 
 and bring on the matter to be argued before the 
 court p. And if the plaintiff conceives the plea to 
 be defeftive, in point of form, or otherwife, inde- 
 pendent of the mere truth of the facl pleaded, he 
 may fet down the plea to be argued as in the cafe 
 of pleas in general % 
 
 Pleas to the jurifdiftion of the court, or in dif- 
 ability of the perfon of the plaintiff, or defendant ""i 
 or pleas in bar of any matter of record, or of matters 
 recorded, or as of record in the court itfelf s, or 
 any other court ; need not be upon oath. But pleas 
 in bar, of matters in pais, muft be upon oath t. 
 
 m I Atkyns, 53, 54. "3 Ord. in Ch. 98. EJ. 1739. 
 
 ° Ord.in Ch 93. Ed.1739, 3 Atkyns, 587. iVeni.j32, 
 
 o See I Ch. Ca. 241. ' Ord. in Ch. 96. 
 
 p Durand v. Hmchinfon, ' Prac. Reg. 174. 
 
 Mich. 1771 on Exceptions. * Ibid. 
 
 I 3 CHAP.
 
 ( ii8 ) 
 
 CHAP. V. 
 
 Of An/werSj and Difclaimers ; cf Exceptions fo Ati' 
 fivers ; and of Demurrers^ Pleas ^ AnfiverSy and 
 Difclaimers y or any ttvOy or more of them^ jointly 
 
 IF a plea is over-ruled, the defendant may infifl: 
 on the fame matter by way of anfwer ". And 
 whatever part of a bill is not covered by demurrer, 
 or plea, muft be defended by anfwer, unlefs the 
 defendant difclaims. It has been already * men- 
 tioned, that every plaintiff is intitled to a difcovery 
 from the defendant of the matters charged in the 
 bill^ provided they are necelTary to afcertain facls 
 material to the merits of his cafe, and to enable 
 him to obtain a decree. The plaintiff may require 
 this difcovery, either becaufe he cannot prove the 
 facls, or in aid of proof, and to avoid expence ^. 
 He is alfo intitled to a difcovery of matters neceflary 
 to fubftantiate the proceedings, and make them re- 
 gular and effectual in a court of equity "■. How- 
 ever, if the difcovery fought by a bill is matter of 
 fcandal, or will fubjecl the defendant to any pain, 
 penalty, or forfeiture, he is not bound to make if, 
 
 u 3 P. Wms. 95. 1 Ve- x 2 Atkyns, 241. 
 fey, 492. J Atkyns, 450. * 2 Veley, 492. 
 
 X Pag. 44. 
 
 and
 
 ( np ) 
 
 ftnd If he does not think proper to defend hlmfelf 
 from the difcovery by demurrer, or plea, according 
 to the circumftances of the cafe, he may by anfwer 
 infift that he is not obliged to make the difcovery ^ 
 In this cafe the plaintiff may except to the defend- 
 ant's anfwer as infufficient ; and upon that exception 
 it will be determined whether the defendant is or 
 IS not obliged to make the difcovery. If the de- 
 fence which can be made to a bill confifts of a va- 
 riety of circumftances, fo that it is not proper to 
 be offered by way of plea " -, or if it is doubtful 
 whether as a plea it will hold ; the defendant may 
 fet forth the whole by way of anfwer, and pray the 
 fame benefit of fo much as goes in bar, as if it had 
 been pleaded to the bill "=. Or if the defendant can 
 offer a matter of j^lca which would be a complete 
 bar, but has no occafion to protect himfelf from 
 any difcovery fought by the bill, and can offer cir~ 
 cumft.ances which he conceives to be favourable to 
 his cafe, and which he could not offer together 
 with a plea, he may fet forth the M'hole matter in 
 the fame manner. Thus if a purchafor for a va- 
 luable confideratioJi, clear of all charges of fraud, 
 or notice, can offer additional circumftances in his 
 favour which he cannot fet forth by way of plea, or 
 of anfwer to fupport a plea j as the expending a 
 confiderable fum of money in improvements, with 
 the knowlege of the plaintiff ; it may be more pru- 
 
 dent 
 
 a •? P. Wm?. ijS. 
 
 z Ve- b I Alkyns, 54. 
 
 %>49i- 
 
 <^ 2 P. Wms, 145, 
 
 
 I4
 
 ( I20 ) 
 
 dent to fet forth the whole byway of anfwer, than 
 to rely on the fingle defence by way of plea. To 
 fo much of the bill as it is necefiary and material 
 for the defendant to anfwer, he muft fpeak direflly, 
 and without evafion ; and mufl: not merely anfwer 
 the feveral charges literally, but he muft confefs, 
 or traverfe, the fubftance of each charge <*. And 
 wherever there are particular and precife charges, 
 they muft be anfwered particularly and precifely, 
 and not in a general manner, though the general 
 anfwer may amount to a full denial of the charges. 
 Although the defendant by his anfwer denies the 
 title of the plaintiff, yet in many cafes he muft 
 make a difcovery prayed by the bill, though not 
 material to the plaintiff's title, and though the 
 plaintiff, if he has no title, can have no benefit 
 from the difcovery. As if a bill is filed for tyihes, 
 praying a difcovery of the quantity of land in the 
 defendant's poffeffion, and of the value of the 
 tythes i though the defendant infifts upon a modus, 
 or upon an exemption from payment of tythes, or 
 abfolutely denies the plaintiff's title % he nuift yet 
 anfwer to the quantity of land, and value of the 
 tythes '. Or if a bill is filed againft an executor, 
 by a creditor of the teftator, the executor muft ad- 
 mit affets, or fet forth an account, though he denies 
 the ilcbt '. 
 
 <i Rules and Ord. in Ch. ' Hardr. 130. 
 99, 100. Ell. 1739. *: Flaidr. i8S$, 
 
 "= See, l>ovvtvei, GilU. z-'f).
 
 ( 121 ) 
 
 If an anfwer goes out of the bill, to flate fom'; 
 matter not material to the defendant's cafe, it will 
 be deemed impertinent, and the matter, upon ap- 
 plication to the court, will be expunged. So in an 
 anfwer, as in a bill, if any thing fcandalous is in- 
 ferted, the fcandal will be expunged by order of the 
 court. But, as in a bill, nothing relevant can be 
 fcandalous ". 
 
 It is the univerfal practice to add, by way of con- 
 clufion to an anfwer, a general traverfe, or denial, 
 of all the matters in the bill. This is faid ' to have 
 obtained formerly, when the pradice was, for the 
 defendant merely to fet forth his cafe by the an- 
 fwer, without anfwering every claufe in the bill. 
 But though, perhaps, rather impertinent if the 
 bill is otherwife fully anfwered, and it has been de- 
 termined to be in that cafe unnecelTary fc, yet it is 
 flill continued in practice. 
 
 If a plaintiff conceives an anfwer to be infufh- 
 cient to the charges contained in the bill, he may 
 take exceptions to it, dating fuch parts of the bill 
 as he conceives are not anfwered, and praying that 
 the defendant may in fuch refpecSls put in a full 
 anfwer to the bill. If the defendant conceives his 
 anfwer to be fufficient, or for any other reafon does 
 not fubmit to anfwer the matters contained in the 
 exceptions, one of the mafters of the court is di- 
 re£led to look into the bill, the anfwer, and the 
 
 h Mofety, 45. 70. '^ z Wins. 87. 
 
 ' 2 P. Wins. 87. 
 
 exceptions.
 
 ( 122 ) 
 
 exceptions, and certify whether the anfwer is futH« 
 cient in the points excepted to, or not. If the mafter 
 reports the anfwer infufficient in any of the points 
 excepted to, the defendant muil anfwer again to thofe 
 parts of the bill in which the mafter conceives the 
 anfwer infufficient; unlefs, by excepting to the 
 mafter's report, he brings the matter before the 
 court, and there obtains a different judgement. But 
 if the defendant has infilled on any matter as a rea- 
 fon for not anfwering, though he does not except 
 to the mafter's report, yet he is not abfolutely pre- 
 cluded from infilling on the fame matter in a ferond 
 anfwer ', and taking the opinion of the court whether 
 he ought to be compelled to anfwer farther to that 
 point, or not. 
 
 Where a defendant pleads, or demurs, and anfwers 
 likewife, if the plaintiff takes exceptions to the 
 anfwer, before the plea, or demurrer, has been ar- 
 gued, he admits the plea, or demurrer, to be good; 
 for unlefs he admits them to be good, it isimpoffible 
 to determine whether the anfwer is fufficient, or 
 not. Indeed if the plea or demurrer is only to the 
 relief prayed by the bill, and not to any part of the 
 difcovcry, it has been held that the plaintiff may 
 take exceptions to the anfwer before the pica is ar- 
 gued ■". If a plea, or demurrer, is accompanied by 
 an anfwer to any part of the bill, even a denial of 
 
 ' a Vefcy, 491. S. See, however, 2 Atkyns, 
 
 "' 3 P. Wins. 327. Note 390- 
 
 combination
 
 ( 1^3 ) 
 combination merely, and the plea or demurrer is 
 over-ruled, the plaintiff muft except to the anfwer 
 as infufficient. But if a plea, or demurrer, is filed 
 without any anfwer, and is over-ruled, the plaintiff 
 need not take exceptions, and the defendant muft 
 anfwer the whole bill, as if no defence had been 
 made to it ". 
 
 A further anfwer is in everf refpe<ft limilar to, and 
 indeed is confidered as forming part of, the firft 
 anfwer. So is an anfwer to an amended bill con- 
 fidered as part of the anfwer to the original billo. 
 Therefore if the defendant, in a farther anfwer, or 
 an anfwer to an amended bill, repeats any thing 
 contained In a former anfwer, the repetition, unlefs 
 it varies the defence in point of fubftance, will be 
 confidered as impertinent ^ If, upon reference to a 
 mafter, fuch parts of the anfwer are reported to be 
 impertinent, they will be llruck out as fuch, with 
 cofts, which in ftriclnefs are to be paid by the 
 counfel who figned the anfwer. 
 
 If the defendant difclaims all right, or title, to the 
 matter in demand by the plaintiff's bill, the court 
 will, in general, confider the caufe as inftituted 
 for vexation only, and difmifs the bill with cofts. 
 But if the plaintiff lliews a probable caufe for ex- 
 hibiting a bill, he may pray a decree againft the de- 
 fendant, upon the ground of the difclaimer 'J. 
 
 n Biinbury, 123. p 3 Atkyns, 303. 
 
 <> 3 Atkyns, 303. 9 Prac. Reg. 4.1. 
 
 Where
 
 ( 124 ) 
 
 Where the defendant difclaims, the plaintifF is not 
 to reply f. 
 
 A defendant may demur to one part of a bill, 
 plead to another, anfwer to another, and difclaim as 
 to another. But all thefe defences muft clearly refer 
 to feparate and dillin6l parts of the bill. For the de- 
 fendant cannot plead to that part to which he has al- 
 ready demurred, neither can he anfwer to any part 
 to M'hich he has either demurred, or pleaded s ; the 
 demurrer demanding the judgement of the court 
 whether he Ihall make any anfwer, and the plea 
 whether he Ihall make any other anfwer than what 
 is contained in the plea. Nor can the defendant by 
 anfwer claim, what by difclaimer he has declared he 
 has no right to. A plea, or anfwer, will therefore 
 over-rule a demurrer, and an anfwer a plea; and if 
 a difclaimer and anfwer are inconfillent, the matter 
 will be taken mod ftrongly againft the defendant 
 upon the difclaimer. 
 
 I Prac. Reg 141. ? 2 Brown Par' Ca. 20, it. 
 
 Q U AV
 
 ( 125 ) 
 
 CHAP. VI. 
 
 Of Replications. 
 
 A Replication is the plaintiff's anfwer, or reply, 
 to the defendant's plea, or anf'.ver. Former- 
 ly, if the defendant by his plea, or anfwer, offered 
 new matter, the plaintiff replied fpecially * ; other- 
 wife the replication was merely a general denial of 
 the truth of the plea, or anfwer, and of the fuf- 
 ficiency of the matter alledged in it to bar the 
 plaintiff's fuit, and an affertion of the truth and 
 fufHciency of the bill. The confequence of a fpecial 
 replication was a rejoinder, by which the defendant 
 afferted the truth and fufficiency of his anfwer, and 
 traverfed every material part of the replication \ If 
 the parties were not then at iflue, by reafon of fome 
 new matter difclofed in the rejoinder which required 
 anfwer, the plaintiff might furrejoin to the re- 
 joinder, and the defendant might in like manner ad- 
 furrejoin, or rebut, to the furrejoinder c. The incon- 
 venience, delay, and unneceffary length of pleading, 
 arifmg from thefe various allegations on each fide '', 
 
 a Ord. Ch. Ed. 1698,122. '^ Weft Symb. Chan. 
 
 Prac.Re^. 215, 195. a. Prac. Reg. 314. 
 
 b 2 WefV. Symb. Chan. ^ Ord. in Ch. Ed. 1698. 
 
 jjjS- s. 32. b. 246. b. 122. 
 
 occafioned
 
 ( 126 ) 
 
 occafioned an alteration in the pra£\ice. Special 
 replications, with all their confequences, are now 
 out of ufe^ ; and the plaintiff is to be relieved ac- 
 ccording to the form of the bill, whatever new mat- 
 ter may have been introduced by the defendant's 
 plea, or anfwer ^. But if the plaintiff conceives, 
 from any matter offered by the defendant's plea, 
 or anfwer, that this bill is not properly adapted to 
 his cafe, he may obtain leave to amend his bill, and 
 fuit it to his cafe, as he fhall be advifed. To this 
 amended bill the defendant may make fuch defence 
 as he (hall think proper, whether required by the 
 plaintiff to anfwer it, or not. 
 
 According to the prefent courfe of the court, al- 
 though rejoinders are difufed, yet the plaintiff, af- 
 ter replication, muft ferve upon the defendant a 
 fubpcena, requiring him to appear to rejoin ; unlefs 
 he will appear gratis ^. The effe61; of this procefs is 
 merely to put the caufe completely in iffue between 
 the parties. For now, immediately after the de- 
 fendant has appeared to rejoin, or after the return 
 of the fubpcena to rejoin ; which, by order obtained 
 of courfe, is now ufually made returnable imme- 
 diately -, the parties may proceed to the examination 
 of witncifcs to fupport the fadls allcdged by the 
 pleadings on each fide ''. If, by miflake, a replica- 
 
 «Prac. Reg. 315. ^ Mofely, 296. Prac, Reg. 
 
 f I'lac. Reg. 31 5. 3 14.. 
 
 c Mjlely, iij 296. 
 
 tion.
 
 ( 127 ) 
 
 tion has not been filed, and yet witnefles have been 
 examined, the court will permit the replication to 
 be filed nunc pro tunc '. 
 
 Thus are the pleadings brought to a termination ; 
 for after examination of witnefles they cannot be al- 
 tered, unlefs under very fpecial circumflances, or 
 in confequence of fome fubfequent event. For if the 
 plaintiff at any time difcovers that he has not made 
 proper parties to his bill, he may obtain leave to 
 amend his bill, for the fpecial purpofe of adding the 
 neceflary parties k ; but after witnefles examined, 
 and publication pafled, the bill can be amended for 
 no other purpofe. And if any event happens, which 
 alters the intereft of any party, or gives any new in- 
 tereft to any perfon not a party, the plaintiff^ may file 
 a fupplemental bill, or bill of revivor, as the occafion 
 may require. If too the plaintifl' thinks fome dif- 
 covery from the defendant, which he has not ob-^ 
 tained, is neceflary to fupport his cafe, he may file a 
 fupplemental bill to obtain that difcovery '. And if 
 upon hearing the caufe, the plaintiff^ appears intitled 
 to relief, but the cafe made by the bill is infufii- 
 cient to ground a complete decree, the court will 
 frequently give the plaintiff leave to file a fupple- 
 mental bill, to bring the neceflary matter, in addi* 
 tion to the cafe made by the original bill, before the 
 court ni. If the addition of parties only is wanted, 
 
 ' Mofeley, 296. 2 ' Ch. Rep, 141. 3 At- 
 
 '' 2 Atkyns, 15. 3. At- kyns, 370. 
 Jcps, 570. m 3 Atkyns, 13J. 
 
 an
 
 { 128 ) 
 
 an order is ufuall3^ made for the caufe to ftand over, 
 with liberty to amend the bill by adding the proper 
 parties. But, in general, with refpe6l to the origi- 
 nal parties, and their interefts, no amendment will 
 be permitted after the caufe is at iflue, and witnefles 
 have been examined, and publication paffed •, though 
 a plaintiff has been permitted, even under fuch cir- 
 cumftances, to amend his bill, by adding a prayer 
 emitted by miflake ". 
 
 " 3 Atkjns, 5S3. 
 
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