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John Mitford Redesdale.

A treatise on the pleadings in suits in the Court of chancery, by English bill online

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want of proper parties, give leave to make new parties. Russell v.
Clark's Ex'rs., 7 Cranch, 69—97; 2 Cond. Rep. 426—7. See also
Harrison v. Vrann, 1. Story's Rep.^ 66. 64.

The extra-territorial effect of a judgment or decree in personam,
against a non-resident, and not served with process, within the jurisdic-
tion of the court, or who docs not appear voluntarily, is regarded by

4



94 BY WHOM A BILL MAY BE EXHIBITED.

the state courts as inoperative out of thp state, or purely local. By
the lex loci rei sitcc, property of such person may be made subject to
the jurisdiction, so as to render the judgment or decree binding, as a
proceeding in rem; but it will not be allowed to operate in personam
in the courts of any other state. The question has been decided the
same way in nearly half the states of the union, and probably no
courts of any state have held such a proceeding conclusive upon the
rights of a party proceeded against, who has not appeared or other-
wise submitted his rights to the decision of the court in which such
• proceedings were instituted. 'Bales v. Delavan, 5 Paige Ch. Rep.

305 — 6, and cases cited. But in New York and some other states, (24
Pick. 412, Rule 8 in Chancery,) provision by legislation and rule of
court, authorising, in lieu of actual service of process on parties be-
yond its jurisdiction, publication or personal service of an order, to
appear and answer, and in default, that the bill be taken as confessed,
[and as s,o to unknown persons having an interest in the subject matter,
see laws of New York, 1831, p. 243, rules 174, et seq. Hudsonv,
TwiniiTg, 1 Taral. 315; Ely v. Broughton,2 Sim. &. S. 188,] obviates
the difficulty of making them parties, and renders an omission so to do,
less excusable than where for want of such legislation, the non-joinder
of parties having rights, has been a source of grievance and fraud.
[Lord Redesdale, Giff'ord v. Hart, 1 Sch. & Lef. 386.]

Where such provision prevails, the English rule, so far as charging
the fact of defendants being beyond the jurisdiction, is not adopted.
Otherwise the fact is stated, and then the court proceeds against the
parties, and if the disposition of the property is in the power of the
other party, the court may act upon it. Cruger v. Daniel el al., 1
McMullan Eq. C, S. Carolina, 190. 157.



35



CHAPTER I.

[33] •

Section II.

Of the several kinds and distinctions of Bills.

It has been mentioned in the introduction that
different kinds of bills are used to answer the se-
veral purposes of instituting an original suit, of ad-
ding to, continuing, or obtaining the benefit of a
suit thus instituted, of instituting a cross-suit, of im-
pugning the judgment of the court on a suit brought*
to a decision, and of carrying a judgment into exe-
cution. The several kinds of bills have been usu-
ally considered as capable of being arranged under
three general heads : I. Original bills, which re-
late to some matter not before litigated in the court
by the same persons standing in the same interests.

II. Bills not original, which are either an addition
to, or a continuance of, an original bill, or both.

III. Bills, which, though occasioned by or seeking
the benefit of a former bill, or of a decision made
upon it, or attempting to obtain a reversal of a de-
cision, are not considered as a continuance of the
former bill, but in the nature of original bills. And
though this arrangement is not perhaps the most
perfect, yet, as it is nearly just, and has been very
generally adopted in argument, and in the books of
reports and of practice, it will be convenient to treat 36
of the different kinds of bills with reference to it.



36 THE SEVERAL KINDS [ChAP I.

[34] I. A bill may pray relief against an injury suf-

ngmai bi s. ^^^^^^ ^j. Qj^jy ggek the assistaiicc of the' court to
enable the plaintiff to defend himself against a pos-
sible future injury, or to support or defend a suit in
Those which a court of ordinary jurisdiction. Original bills have

pray rehei, aie, J J O

therefore been again divided into bills praying relief,
and bills not praying relief. An original bill pray-

"Ifbiu/ °"^' "^S relief may be, 1. A bill praying the decree or
order of the court touching some right claimed by
the person exhibiting the bill, in opposition to some
right claimed by the person against whom the bill

Misofinterpiea. jg exhibited. 2. A bill of interpleader, where the
person exhibiting the bill claims no right in oppo-
sition to the rights claimed by the persons against
. whom the bill is exhibited, but prays the decree of
the court touching the rights of those persons, for
the safety of the persons exhibiting the bill (1)..

certiorari bills. ^ A bill praying the writ of certiorari to remove a

Those which do cause from an inferior court of equity. An original

not pray relief i • /» t * i mi

*etuate'testimo ^^^^ ^^^ P^^J^^S relief may be, 1. A bill to perpe-
duco"" °^ tuate the testimony of witnesses. 2. A bill for dis-
covery of facts resting within the knowledge of the
person against whom the bill is exhibited, or of
deeds, writings, or other things in his custody or
power.
n. Bills not on- II. A suit iiupcrfcct in its frame, or become so

ginal. Such are . i i /» • i i i i • i

by accident before its end has been obtained, may,

in many cases, be rendered perfect by an new bill,

^ which is not considered as an original bill, but

merely as an addition to or continuance of the

Supplemental former bill, or .botli. A bill of this kind maybe,

(1) [Bedell v. Hoffman, 2 Paige's Rep. 199.]



S. II.] OF BILLS. 36

1. A supplemental bill, which is merely an addition 37

to the original. 2. A bill of revivor, which is a [^5]
continuance of the original bill, when by death some ' ^ ° '■e^i^or.
party to it has become incapable of prosecuting oi*
defending a suit, or a female plaintiff has by mar-

■ ^11 i/» /» • 1 rt bills of revivor

riage nicapacitatcd herseli irom sunig alone. S. and supplement.
A bill both of revivor and supplement, which con-
tinues a suit upon an abatement, and supplies de-
fects arisen from some event subsequent to the
institution of the .suit (1).

III. Bills for the purposes of cross litigation of J^"^^^'^"' /" rigf.
matters already depending before the court, of con- ^l ""'"*■ ^'"'^
troverting, suspending, avoiding or carrying into exe-
cution a judgment of the court, or of obtaining the
benefit of a suit which the plaintiff is not entitled to
add to or continue for the purpose of supplying any
defects in it, have been generally considered under
the head of bills in the nature of original bills,
though occasioned by or seeking the benefit of
former bills : and maybe, 1. A cross-bill, exhibited crossbiiu,
by the defendant in a former bill, against the plain-
tiff in the same bill, touching some matter in litigation
in the first bill. A bill of review, to examine and biiu of review,
reverse a decree made upon a former bill, and
signed by the person holding the great seal, and
enrolled, whereby it has become a record of the court bins in the na-
(2). 3. A bill in the nature of a bill of review, brouofht revtw.

^ ' . o ijjiig tg impeach

by a person not bound by the former decree. 4. A {,^^^"''° ""^
bill to impeach a decree upon the ground of fraud. 5. or"avoid"l''d?-
A bill to suspend the operation of a decree on special
circumstances, or to avoid it on the ground of mat-

(1) [WestcoHv. Cady, 5 Johns. Ch. Rep. 337.]

(2) [ Wiser v. Blachley and o'.hers, 2 lb. 488.]



37 FRAME AND END OF THE [ChaP. I.

dlcreeVto^xe* ^^^ ariseii subseqiicnt to it. 6. A bill to carry a
S8° rsn ^^^^^^ made in a former suit into execution. 7. A
bills in the na- bill iu the naturB of a bill of revivor, to obtain the

ture of bills °^ ■, ^ ^ ^ i

revivor. benefit of a suit after abatement m certam cases

which do not admit of a continuance of the original

Si ^f ^s^upjie- bill. 8. A bill in the nature of a supplemental bill,
to obtain the benefit of a suit, either after abatement
in other cases which do not admit of a continuance
of the original bill, or after the suit is become de-
fective, without abatement in cases which do not
admit of a supplemental bill to supply that defect.



CHAPTER I.

Section III.

Of the frame and end of the several kinds of Bills^
and of Informations,

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

I. origiaai bill*. I. Original bills have been mentioned as again

divisible into bills praying relief, and bills not pray-
ing relief.



S. III.] SEVERAL KINDS OF BILLS. 38

Original bills praying relief have been ranked [37]
under three heads. — 1. Orio^inal bills praving the ^9

~ 1 w o Division of origi-

decree of the court touching some right claimed bv "'^.l^'"* praying

o O « relief.

the person exhibiting the bill, in opposition to rights
claimed by the person against whom the bill is
exhibited. 2. Bills of interpleader. And, 3. Cer-
tiorari bills. — Bills of the first kind are the bills
most usually exhibited in the court ; and as the
several other kinds of bills are either consequences
of this, or very similar to it in many respects, the
consideration of bills of this kind will in a great
measure involve the consideration of bills in general.

1. An original bill, praying the decree of^ the ginai wiu.'^ °"*
court touching rights claimed by the person exhi- j'Jjf",^^;*^^^ ^^^^^
biting the bill, in opposition to rights claimed by co!i^t^*=* *'*^ ^''^
the person against whom the bill is exhibited, must
show the rights of the plaintiff, or person exhibiting
the bill ; by whom, and in what manner, he is in-
jured ; or in what he wants the assistance of the
court ; and that he is without remedy, except in a
court of equity, or at least is properly relievable, or
can be most effectually relieved there. Having thus
shown the plaintiff's title to the assistance of the
court, the bill may pray, that the defendant, or per-
sons against whom the bill is exhibited, may an-
swer upon oath (1), the matters charged against
him ; and it may also pray the relief or assistance and pray Buitabie
of the court which the plaintiff's case entitles him
to. For these purposes the bill must pray, that a
writ, called a writ of subpcena, may issue under the pan"^*"^ *^'*'"

(1) Unless the answer on oath be waived, as it may be in England
by special order, or consent, and in some of the United States, by legis-
lative provision and general rules of courts. See p. 10, note.



39 FRAME AND END OF THE [ChAP. I.

great seal, which is the seal of the court, to require

the defendant's appearance, and answer to the bill,

[^8] unless the defendant has privilege of peerage, or is

40 a lord of parliament, or is made a defendant as an
OT a e or mis- ^ji^^,^^. of tlic crowu (1). lu thc casc of a peer or

peeress, or lord of parliament, the bill must first
pray the letter of the person holding the great seal,
called a letter missive, requesting the defendant to
appear to and answer the bill (a) ; and the writ of
subpcena only in default of compliance with that
findan* fn fhe ^'^qucst. And if thc attorney-general is made a
torney-genlral' dcfcndaut as au officcr of the crown, the bill must
Se?!'^*'^ ^ pray, instead of the writ of subpoena (h), that he,
being attended with a copy, may appear and put in
rif reu/r ^^'^^" SiU auswor. It is usual to add to the prayer of the
bill a general prayer of that relief which the cir-
cumstances of the case may require ; that if the
plaintiff mistakes the relief to which he is entitled,
the court may yet afford him that relief to which he
has a right (<?), (2). Indeed it has been said, that

(a) This mark of courtesy . is in not members of the House of Com-

respect of peerage generally, see mens, see Aet of Union with Ireland,

Lord Milsington v. Earl of Port- 39 and 40 Geo. III. c. 67, art. 4, and

more, 1 Ves. &. B. 419 ; and is to be Robinson v. Lord Rokeby, 8 Ves. 601.
observed towards Scotch peers, see (h) See Barclay v. Russell, Dick

Act of Union with Scotland, 5 and 6 729 ; S. C. 3 Ves. 424.
Anne, c. 8, .art. 23, and Irish peers (c) Mollis v. Carr,2 Mod. 86.



Set off.



(1) See note (1), p. 11.
Frame of prayer. (2) Where a bill prays that an account may be taken of the deal-
ings and transactions between the plaintiff and the defendant, who has
brought an action against the plaintiff, and that the defendant may be
decreed to pay to the plaintiff what shall appear to be due to. him upon
taking such account, the plaintiff being ready and willing to pay what,
if any thing, shall appear to be due from him to the defendant, the court
will not decree a set-off; because with such relief the relief prayed
for is totally inconsistent j for in the case of a set-off, the defendant



S. III.] SEVERAL KINDS OF BILLS. 41

a prayer of general relief, without a special prayer

of the particular relief to which the plaintiff thinks

himself entitled, is sufficient {d) \ and that the

particular relief which the case requires may, at

the hearing, be prayed at the bar (e). But this [39]

relief must be agreeable to the case made by the nfSe"a^eet

bill (/) (1), and not diffi3rent from it (^) (2); and made by the mil



{d) See Cooh v. Martyn, 2 Atk. 3. Sch. & Lefr. 10. 729 ; 3 Swanst.

The report of this case is app;uent!y 208, note. {English v. Foxall, 2

very inaccurate. See 1 Eden. R. Peters, 595.)

26 ; 11 Ves. 574. [See Johnson v. {g) 2 Atk, 141 ; 3 Atk. 132; 1

Johnson, 1 Munf. 549.] Ves. Jr. 426; 2 Ves. 299; Birch v-

(e) See Wilkinson v. Beal, 4 Coriin, 9 Dec. 1784, in Chan., 1 Ves.

Madd. 408. Jr. 426 ; Lord Walpole v. Lord Or-

(/) Beaumont v. Boultbee, 5 Ves. ford, 3 Ves. 402 ; Palk v. Lord Clin-

485 ; Hiern v. Mill, 13 Ves. 114 ; 2 ion, 12 Ves. 48.

would not be ordered to pay the plaintiff the balance, but the balance
would be directed to be applied in satisfaction of the damages, if any
which the defendant would otherwise be entitled to receive. Rawson
Samuel, Cr. &. Phil. 161.

(1) The plaintiff may have such relief, under the prayer for general Relief under tha
relief, as the statement of his case entitles him to ask. 'j'^'t'i^Mwi v. ^ai^Jg^gf"' ^®°*'
Columbine, Taml. 135; Meller v. Minel, lb. 487.

But after stating certain grounds for relief in the bill, he cannot
have relief upon other grounds not pointed out in the bill ; because
that would be a surprise upon the defendant. And hence where an
equitable mortgagee seeks relief against elegits on the ground of fraud,
no relief can be given on the general ground, real or supposed, that an
equitable mortgage has priority over a title by elegit under a judgment
subsequent to tlie mortgage, where no case is made by tiie bill for re-
lief on that ground ; although, indeed, there is a charge that the plain-
tiff is entitled to priority in respect of the equitable mortgage over the
elegits, and a prayer corresponding to such charge, but such charge
does not clearly point out the general ground above mentioned as a
ground for relief, distinct from that of fraud, so as to entitle the plain-
tiff at the hearing to ask relief upon that general ground. Whitworth
V. Gaug'iin, Cr. &. Phil. 325.

(2) The prayer may be for general, specific and alternative relief.

Under the general prayer, particular relief may be had, but the re-
lief is only as the case stated and proofs sustaining it justify. (Hob-
son V. M'Arlkur, 16 Peters, 182. 195. English v. Foxall, 2 Id. 695.)
The allegata dind probata must meet, or agree with reasonable certain-



41 FRAME AND END OF THE [ChAP. I.

the court will not in all cases be so indulgent as to

ty. (See 46, note. Smith v. Axtell et at, Saxton's Ch. Rep. New
Jersey, 497 — 8, et seq.A^A.) But the same strictness of pleading and
proof does not obtain in equity as at law, especially where defenda^it
is not surprised. (See p. 45, note, infra : Hatcher v. Hatcher.)

So under the general prayer, though a prayer for specific relief be
added, as is usual, yet relief inconsistant with the relief specially
prayed, if consistent with the case and proofs may be granted, provided
the defendant be not surprised or prejudiced. And so the constitution-
ality of legislative acts may be brought in question, and relief granted,
under the general prayer, if the bill be properly framed for such pur-
pose. (Smith V. The Trenton Delaware Falls Co. ,3 Green's Ch. Rep.
New Jersey, 510, 511, 605.) [Wilkin v. Wi7/ctn, 1 J. C. Rep. 111.
Cook V. Mancius, 6 lb. .89 ; Allen v. Coffman, 1 Bibb. 459 ; and see
Sheppard's Ex'rs v. Starke, 3 Munf. 29 ; and note to 1 Munf. 564 j
Bailey v. Burton, 8 Wendell's Rep. 339.]

Bat when the general prayer and for further relief is in the coryunc-
tiw, for example : " that the assignment may be declared void, and
complainants be paid out of the assigned property, and for further re-
lief as the nature of the case requires." Any thing in addition to the
specific relief prayed, consistent with it and warranted by the case
made, may be decreed ; but not any relief inconsistent with the specific
relief prayed for can be had. To obtain other relief, which, though in-
consistent with the specific relief prayed, would be justified by the
equity of the case made, the prayer should be in the disjunctive, or,
thus : " and that your orator may have such additional relief, or such
other or further relief as the equity of the case may require, and this
court may adjudge proper." [The leading case on this technical
point was Colton v. Ross-, 2 Paige's Ch. Rep. 396 — 8 ; sanctioned and
followed by cases in 2 Edw. V. C. R. 201. 281. Dowdall v. Lenoxy
Pleasants v. Glasscock, 1 Smedes & Marshall's C. Rep. Mississippi}
24, 25. 18. Foster v. Cooke, 1 Hawk. Rep. 509.

[Where three kinds of relief are prayed for in the bill, and the com-
plainant is entitled to one of them, the defendant cannot demur. Wes-
tern Ins. Co. of Buffalo v. Eagle Fire Ins. Co., 1 Paige's C. Rep. 284.

It has been said, that the court will not grant relief which is without
the scope of the complainant's bill, and not prayed for specifically.
Jarmon's case, 3 Monroe's Rep. 119; S. P. Withers v. Thompson, lb.
333. But this observation, it is presumed, proves nothing : for no re-
lief can be granted beyond the scope of the bill, nor can the prayer go
further than such scope.]

The same technical distinction, in the form of the prayer, is applied
to the prayer for alternative relief. See ne.xt note.



S. III.] SEVERAL KINDS OF 42

permit a bill framed for one purpose to answer
another, especially if the defendant may be sur-
prised or prejudiced. If, therefore, the plaintiff Bi^'ji'^^a do«.
doubts his title to the relief he wishes to pray, the
bill maybe framed with a double aspect ; that if the
court determines against him in one view of the
case, it may yet afford him assistance in another
(/«) (1). Upon an information by the attorney-ge- Prayer in an m-
neral on behalf of a charity, the court will give the *■

(A) 2 Atk. 325 ; and see Perry v. Philips, 17 Ves. 173.

(1") Where a bill is filed against certain members of a club, for the Prayer for pay-
recovery of money belonging to the club, and it prays that the money ™„°* ',^ay*^.
may be paid to the plaintiff, " or otherwise as the court may direct ;" rect."
in such case, if it ought not to be paid to the plaintiff, the court will
take care that it is paid to the persons who ought to have the manage-
ment of it. Richardson v. Hastings, 7 Beav. 323.

If a bill prays relief contingently against one defendant, only in the Pray" for relief
event of the court not giving relief against another defendant, it is de-
murrable. Seddon v. Connell, 10 Sim. 79.

If a bill by the directors of an insurance company prays that a policy Want of offer to

may be delivered up to be cancelled, or that the compaay may other- miums.

wise be relieved therefrom in such manner as the court may think fit ;

this is a submission to the judgment of the court as to the terms on

which the relief is to be granted ; and therefore it is not necessary that

the plaintiffs should expressly offer to pay back the premiums received

on the policy. Barker v. Wallers, 8 Beav. 92.

Where a person conveys an estate, in trust, out of the rents, or by Want of offer to
"^ •' ■' rci^oem priorm-

a sale or mortgage thereof, to pay a debt, and afterwards mortgages it> cumbrance.

and the mortgagee files a bill, praying an execution of the trusts of the

prior deed, and payment of the prior debt in the first place, and then of

the mortgage debt due to himself; the bill is demurrable for want of an

offer to redeem the prior incumbrant^er, or to pay him any deficiency

there may be, in case the sum realized by the sale of the estate should

be less than the prior debt. Caie v. Foulks, 6 Law J. Ch. Rep. (N, S.)

206, M. R.

Where the bill is for specific execution of contract, providing only
for valuation of land, not for sale or payment of money : if the facta
justify prayer of any such relief, the bill should be framed with a double
aspect. For we have seen (p. 41, note,) that under tlie general
prayer, the court gives such relief only as the case stated and proofs
sustaining it justify. (Holison v. M' Arthur, 16 Peters, 182. 195.

But where vendor of goods recovered judgment against vendee, be-



43 FRAME AND END OF THE [ChAP. I.

proper directions as to the charity, without regard-
ing the propriety or impropriety of the prayer of the
information (i).
^^Mtiee'^^^'^^ ^^' persons interested in the subject of the suit
ought generally to be parties (k) (1), if within the

(t) Att. Gen. v. Jeanes, 1 Atk. (A) This proposition, although ua-

355 ; 1 Ves. 43. 72. 418 ; Att. Gen. doubtedly correct in relation to suits

V. Breton, 2 Ves. 426, 427 j 11 Ves. for relief, Pawlet v. Bishop of Lon-

247. 367 ; 2 Jac. & W. 370 ; and it don, 2 Atk. 296 ; Poore v. Clarke,

seems that a similar observation would 2 Atk. 515; 1 Ves. Jr. 39; 7 Ves.

in some instances apply upon a bill 563 ; 1 Meriv. 262 ; 3 Meriv. 512,

filed on behalf of an infant, iS^a^fZ^on has been said, but lipon somewhat

v. Stapilton,! Atk. 2 ; and see £>«- doubtful authority, not to apply

rant V. Durant, 1 Cox, 58, in which, where discovery alone is sought.

on reference to the record, it appears Sangosa v. E. I. Camp. 1 Eq. Ca.

that the daughter was an infant. Reg, Ab. 170.
Lib. 1783, p. 192.

fore he has notice of a fraud in the purchase, and on return of execu-
tion unsatisfied, files a judgment creditor's bill under the law and prac-
tice of the State of New-York, he cannot therein pursue the goods or
its proceeds in the hands of a third person, on ground that the sale was
fraudulent and void. Nor is it the proper subject of a bill with a
double aspect. Lloyd v. Brewster et al, 4 Paige's Rep. 540 — 1. 537.

A proper case for a bill with a double aspect is, where the complain-
ant is in doubt whether he is entitled to one kind of relief or another,
upon the facts of his case as stated in his bill. He may then frame his
prayer in the alternative ; so as if the court decide that one kind of
relief is not proper, he may still be entitled to obtain any other relief
to which he is entitled under the other part of the alternative prayer.
(Ibid. See also, CoUonv. Ross, 2 Id. 396—8 ; 1 Johns. Ch. Rep. Ill ;
14 Johns. Rep. 627 ; 1 Id. 529.) [Foster v. Cooke, 1 Hawks. Rep. 509.]
But his prayer concluding for general relief, should be in the di^^junc-
tive, or (Ibid, and mite, p. 41, note.)

So where complainant is entitled to some kind of relief, on the gene-
ral facts stated in his bill, if the nature of the relief he is entitled to
depends from the existence or non-existence of a particular fact or cir-
cumstance which is not within his knowledge, he may allege his igno-
rance of such fact, and call for a discovery thereof. And in such case
he may also frame his prayer in the alternative, so as to obtain the
proper relief according as the fact may appear at the hearing of the
cause. (Lloyd v. Brewster et al., 4 Paige's Rep. 540-1. 537 )

(1) See the general rule more fully stated and illustrated, p. 190.



Online LibraryJohn Mitford RedesdaleA treatise on the pleadings in suits in the Court of chancery, by English bill → online text (page 7 of 61)