John Mitford Redesdale.

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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


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Online LibraryJohn Mitford RedesdaleA treatise on the pleadings in suits in the Court of Chancery by English bill .. → online text (page 1 of 9)