Laws

Mathushek Piano Mfg Co Post Date: Mon, 28 Jul 2008 20:10:01 +0000
The term account includes goods sold and delivered * or consigned to be sold, 2 money had and re- ceived, 3 and work done and materials furnishe d 4 Pro, 124; Ohio Code Civ Pro, 117; Rev Stat1883, 259 In Ohio a bill of particulars must be filed by plaintiff in a justice's court before a summons can issu e Mc- Carthy v Blake, i WeSt L M (Ohio) 589, 4 W L g (Ohio) 200 In Kentucky a copy of the account must be file d Bullit's Code, 120 In Mississippi, if the pleading is vague and in general terms, and fails to specify the circumstances and oc- casions upon which the pleader re- lies, the court, upon proper affidavit of the parties, may order a bill of particular S Mis S Code, 1892, 705 In Missouri, if not specified in the pleading, a copy must be attache d Wa g Stat1020, 38; Rev Stati8?9, 3547- In Oregon the items of the ac- count may be set forth in the plead- ing, or the pleader may file a sworn copy or deliver such copy to the op- posite part Y Oregon Code Civ Pro, 82 In Tennessee an account set forth in the declaration, alleged to be an account from another county or state, properly verified and profert thereof made, becomes evidence and is con- clusive against the party sought to be charged unless he shall on oath deny the account. Tenn Code, 3780; construed in Hunter v Anderson, i Heis K (Tenn) I Demurrer not Preclude d A statute enabling a party to call for a bill of particulars of a demand pleaded will not be construed as impairing his right to demur to the pleading for in- sufficiency instead of calling for par- ticular S Wolf v Schofield, 38 Ind 1 In an action brought to recover a balance due for pianos sold and de- livered between specific dates, the plaintiff furnished a bill of particu- lars stating the balance as due on certain pianos, designated by num- bers and letters, without showing the pianos delivered between the dates specified, with their prices, or the dates and amounts of the payment S Held, that these should be set out, since there might be a balance on the pianos designated and still be no bal- ance due on the general account. Mathushek Piano Mfg Co v Pearce (Supreme Ct), 50 N Y St Rep 34, 66 Hun ( N Y) 631 2 In an action to recover the pro- ceeds of goods consigned to be sold on commission plaintiff must give the items of the goods consigned and de- fendant must furnish an account of the sales he mad e Wilson v, Traend- ley, 2 N Y City Ct 303 See also Miller v Kent, 60 How Pr ( N Y Supreme Ct) 388; Witkowski v Para- more, 93 N Y 467 3 Hotchkiss v Judd, 12 Allen (Mas S) 447; Smith z/ Lehie, I Mil L ( S Car) 240; Barton v Dunlap, 2 Tread W ConSt ( S Car) 140; Cregier v Smyth, i Spears ( S Car) 298 Bequisite S A bill of particulars in an action for money had and received must specify how the demand arose, its items, when they accrued, and the amount claimed; but it need not state how and by what right and when the plaintiff or his assignors became en- titled, and how and when plaintiff ac- quired such right.

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Under this head can Post Date: Mon, 28 Jul 2008 19:56:55 +0000
Hamilton v Peck , 84 Mich 393 The court may, in an action to re- cover a deposit made for the purchase of land and expense of examining the title, on the ground that the vendor could not give a good title, direct a bill of particulars as to the specific defects claimed to exist in defendant's title and objections to the abstract arising upon matters of fact; but it is improper both to direct such bill and also to order the pleading to be made more certain as to the same matter S Lahey v Kortright, 55 N Y SupeR Ct 156, 13 Civ Pro Rep ( N Y) 352 Vendee Suing for Deposit. In an ac- tion by a vendee to recover back his deposit because the condition of the sale had not been complied with, the defendant may have a particular of the grounds on which the plaintiff seeks to recoveRSquire v Tod, I Cam P 293 Suit by Principal against Agent In an action to recover from an agent money received by him as a balance due to his principal on settlement of accounts with a third person, it is not necessary to set forth the particulars in which said balance of indebtedness originate d Bates v Cobb, 5 Bosw ( N Y)2 g Successive Acts of Servic e In an action upon a claim for having completed a piece of work by numerous successive acts of service, all contributing to such completion, it is not necessary to set out each service so contributory in its characTer A bill of particulars describing the nature and character of the services and the result at which they arrive, and the aggregate value of the whole, is suf- ficient. Under this head can be classed the services of attorneys, physicians, and the lik e 1 31 N Y St Rep 318; Shaffer v Cross, 13 La An N No Buildin g A bill of particulars for work done and materials furnished to a building need not specify the parts of the building to which the work was done, Nicholas v Edwards, 8 W N C (Pa) 470; nor, where un- der the contract material is furnished to two buildings, need the bill of par- ticulars of the materials in a petition to foreclose a mechanic's lien specify the materials sold for each building separatel Y Bowman Lumber Co v Newton, 72 Iowa 90 Work on House, " etc" In order to support an item in a bill of particu- lars for "sixty-one days on house, etc, $122," evidence is admissible of days' work done on grading about the hous e Hayes v, Wilson, 105 Mas S 21 Literary Service S In an action for the value of services as a literary writer and clerk for defendant's tes- tator during five years, the services* consisting of the preparation of news- paper articles, resolutions, and ad- dresses on political subjects, and of a lecture, the defendant is entitled to a bill of particulars stating the number of letters, newspaper articles, resolu- tions, etc, written by him, the dates and details as near as may be, and the distinct services rendered in the preparation of the lectur e McLaugh- lin v Kelly, 22 Abb N Ca S ( N Y Supreme Ct) 286, 6 N Y Supp 574 Services in Promoting Corporatio N Where a promoter of a business and financial company brought about the incorporation of a certain firm and associated the defendants, at whose instance he acted, with the enter- prise, and was to receive his compen- sation out of the profits on the sale of the stock, in an action to recover the same he was required to furnish a bill of particulars showing whether any of the agreements or requests for his services were in writing, the date, tenor, and effect of each, and by whom signe d Fry v Manhattan Trust Co (SupeRCt), 24 N Y Supp 573 Particulars of Defens e A railroad company sued by a contractor for clearing lands and building bridges, culverts, etc, alleged in its answer that some of the work sued for was done improperly carelessly, and in an unworkmanlike manneRHeld, that it should be compelled to furnish a bill of particulars of the classes of work and their location to which such defense applie d Cunningham v, Massena Springs, etc, RCo (Su- preme Ct), 20 N Y St Rep 698, 16 Civ Pro Rep 244 In Rafalsky z/ Boehm, i Mis C Rep ( N Y City Ct) 87, 48 N Y St Rep 641, it was held that, under a code which provides that "the court may in any case direct a bill of particu- lars," the court might in its discre- tion order the defendant to furnish the particulars of a paragraph of his answer which alleged " that the plain- tiffs did and performed for defendant certain labor and furnished certain materials, but that part of the same was not performed and furnished at his request, and was different from the work which he had requested them to d O" Particulars of Estimated Damag e The item of a bill of particulars upon which the jury gave the verdict for the plaintiff, being stated in a bill of particulars to be " detention and dam- ages sustained for want of cement on locks No S 5 and 6," sufficiently ex- presses that the claim arises for want of cement, though the bill does not specify fully the ground on which the plaintiff claims damage S Ches- apeake, etc, Canal Co v Knapp, 9 Pet (U S)54 I 1 Pierce v Wilson, 48 Ind 298; Shaffer v Cross, 13 La An N no; Deringer v Pugh, 7 Ohio CiRCt Rep 158; Betts v Betts, 4 Abb N Ca S ( N Y Supreme Ct) 317; Bangs 3 Action to Set Aside Fraudulent Conveyanc e In actions to set aside transfers of property in fraud of creditors, the application is addressed wholly to the discretion of the court, and the allowance or disallowance of a bill of particulars depends on the particular circumstances of each cas e 1 v Ocean Nat Bank, 53 How Pr ( N Y C P I) 51; Donohue -v Pomeroy, 65 Hun ( N Y)620, 19 N Y Supp 569; Johnson v Mallory, 2 Robt ( N Y) 683; Phillips v Stanton (City Ct), 9 N Y St Rep 503; Fry v Manhat- tan Trust Co, 4 Mis C Rep ( N Y SupeRCt), 611, 53 N Y St Rep 566; Cummings v Thomas, I W N C (Pa) 311; Williams v Huidekoper, i W N C (Pa) 376 Attorney S A bill of particulars will not be ordered on defendant's motion therefor, in an action by an attorney on a special contract for a fixed com- pensation for services rendere d Stil- well v Hernandez, 7 Daly ( N Y) 486 But see Corbett v Trowbridge, 2 N Y Wkl Y Di g 255, where it was held that defendant was entitled to a spe- cific statement of each service, date of rendition, and amount charged, if not for each item, at least for items occur- ring upon the same day; and Colwell v Ludlam, i N Y Month L Bul L 42, where a bill containing items of service sued for, but not placing a value on any one item, but only on the aggregate, was held insufficient.

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Carpenter v Carpenter (Supreme Ct) Post Date: Mon, 28 Jul 2008 19:41:16 +0000
In an action by an attorney for ser- vices rendered to a corporation the following account was attached to the petition: " To servies in raising sub- sidy at W, $1000; examination of charter and correction of same, $100; drawing subscription contract in June, 1889, $100; drawing bond for $40,000, RRCo to directors and Commer- cial Club, $250; consultation and opin- ions and advice to said company upon various questions under the law of corporations and the Texas RRAct, during the months of July, August, and September, 1889, $500" Held, that such account did not show the items of services claimed by the plaintiff with sufficient certainty and particularity to require defendant to plead thereto, but that plaintiff was not required to itemize the services showing when and to whom rendere d Weatherford, etc, RCo v Granger (Tex Ct App 1893), 22 S W Rep 70 In an action for services as attor- ney, where plaintiff on demand fur- nished defendant with an unverified bill of particulars, as follows: " May 14 to August i, fioo O Advised in all road matters, cash entry land cases, helped make briefs for Washington U S Land Department, advanced money for telegraph and express, drawing wills, and general work as his attorney," such bill of particulars was, on objection, held insufficient to admit proof of the character and amount of such service S Isham v Parker, 3 Wash 755 Physicia N A bill of particulars for a physician's claim need only state the number and dates of the visit S Van Bibber v Merrit, 12 W N C (Pa) 272 A bill of particulars for medical services which sets out the items of each visit and a general allegation that plaintiff is a practising physician engaged in the practice of medicine, and has been so engaged for ten years past, is sufficient in a justice's court. Underwood v Scott, 43 Ka N 714 1 New York v National Broadway Bank, 14 N Y Wkl Y Di g 492; Pat- ton v Whitney (Brooklyn City Ct), 5 N Y St Rep 845; Claflin v Smith, 13 Abb N Ca S ( N Y Supreme Ct) 205 See also Hardberg v Burrell, 14 Pa Co Ct Rep 417 Particulars of Defens e In an action to set aside a certain transfer of prop- erty which had been made by defend- ants to one another, in response to an order to furnish a bill of particu- lars specifying what the considera- tion for the transfer was and the amount, if in money, two of them an- swered that the consideration paid or received by them was an agree- ment for the common stock of one of the defendants; the other, that he paid services rendered in and about certain business in which he and his vendors were interested, and agreed to perform other service S A more specific bill was ordere d Gas- Works ConSt Co v Standard Gas- 4 Divorc e A bill of particulars may be allowed in actions for divorc e 1 5 DoweRIn actions for admeasurement of dower a bill of par- ticulars may be ordere d 2 6 Replevi N In actions of replevin it is within the discretion **of the court to order the plaintiff to furnish a bill of particular S 3 Light Co (Supreme Ct), i N Y Supp 265 This case was an action by one set of creditors seeking to sustain the assignment, against an- other set of creditors seeking to set it aside on the ground of frau d But see Passavant z Cantor, 21 Abb N Ca S ( N Y Supreme Ct), 48 Hun ( N Y) 546, an action against an as- signor when the means of knowledge, books, and estate were in the posses- sion of assignee, where the applica- tion for a bill of particulars was de- nie d In this action the plaintiffs alleged that the assignor failed to deliver to the assignee all the prop- erty owned by him or in which he was interested at the time of the assign- ment, and that he had secreted and reserved a large portion of his prop- erty with intent to defraud his credi- tor S Parties Eeceiving Fraudulent Pay- ment S The names of the parties to whom alleged fraudulent payments were made, in contemplation of in- solvency, were ordered in Garfield Nat Bank v Peck, i Mis C Rep ( N Y) 126 1 Adultery Time, Place, Partie S The court may, in its discretion, in a libel for divorce, charging adultery, order a bill of particulars specifying the time, place, and particeps crimini S Adams v Adams, 16 Pic K (Mas S) 254; Harrington v Harrington, 107 Mas S 329; Ansert v Ansert, 2 N Y Month L Bul L 19; Gridley v Gridley, 7 Civ Pro Rep ( N Y Supreme Ct)2i5; Light -v Light, 17 S R(Pa) 273; Edwards v Edwards, 9 Phi La (Pa) 617, 3 Pitt S (Pa) 333 If the complaint or libel is suffi- ciently specific on its face, of course no bill of particulars will be ordere d Gridley v Gridley, 7 Civ Pro Rep ( N Y Supreme Ct) 215 Unnecessary Requirement S Where the complaint in an action for divorce alleges that defendant had been liv- ing in adulterous intercourse with a woman named, the requirement in an order for a bill of particulars that plaintiff furnish particulars rel- ative to this allegation should be struck out, since circumstantial evi- dence, not proving a particular act at a particular time and place, would be competent to support it. Carpenter v Carpenter (Supreme Ct), 42 N Y St Rep 577 Cruelty Refusal when not Prejudi- cia L The respondent cannot except to the refusal of the presiding judge, upon the hearing of a libel for divorce, to order further specifications, espe- cially when accompanied by the in- timation that he would be allowed a reasonable postponement to meet any unexpected evidence, and when he does not during the trial ask for any such postponement.

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A bill of particulars Post Date: Mon, 28 Jul 2008 19:24:35 +0000
Gardner v Gard- ner, 2 Gray (Mas S) 434 As Justification of a Desertio N Where the respondent sets up cruel and barbarous treatment in justifica- tion of a desertion, the libellant is entitled to a specification; such mat- ters should not be specially pleade d Butler v Butler, i Par S E Q Ca S (Pa) 329, 4 Clark (Pa) 284 2 Halstead v Halstead, 2 Mis C Rep ( N Y SupeRCt) 501, 51 N Y St Rep 86; Clark v St James' Church So C, 21 Hun ( N Y) 95; Brinckle v Brinckle, 31 Le g Int (Pa) 148, i W N C (Pa) 113 3 Humphrey v Cottley, 4 Co W ( N Y) 54; Blackie v Neilson, 6 Bosw ( N Y) 681 Particulars of Alleged Frau d In an action of replevin against an as- signee for the benefit of creditors by the assignor's vendor, the plaintiffs alleging fraudulent representations in general terms, it is proper to re- quire a bill of particulars showing the facts constituting fraud as fully as would be necessary in a complaint based on frau d Deimel v Olney, 18 Abb N Ca S ( N Y Supreme Ct) 248 Immaterial Particular S In an action to recover a diamond necklace al- leged to have been delivered by the plaintiff to one E for the purpose of showing it to a proposed purchaser 7 Real Actions and Ejectment. Either party to a real action or an action of ejectment may be required to furnish a bill of par- ticular S 1 8 Specific Performance, and Damage S A bill of particulars has been allowed in a suit to compel specific performance of a con- tract, and to recover damages for the nonperformance thereof* and pawned by E to defendants, the name, address, business, and finan- cial standing of the proposed pur- chaser are not particulars which plaintiff will be required to disclose by a bill of particular S Black v McAleenan (Supreme Ct), 29 N Y Supp 148 Improper Term S Where the parties to a replevin suit went to trial upon the affidavit, no bill of particulars having been filed, and an appeal was perfected, depositions taken, and wit- nesses summoned for trial in the ap- pellate court, and, the case being called, defendant raised the point that a bill of particulars should be filed, and the court thereupon ordered such bill, and as a condition of filing the bill imposed on plaintiff the pay- ment of all costs to date, it was held that such condition was inequitable, and should not have been impose d Gasterline v Day, 26 Ka N 306 Nebraska Justice of the Peac e Neb Code Civ Pro, 951, which re- quires the filing of a bill of particu- lars on the part of the plaintiff in all cases before a justice of the peace, is not applicable to an action of replev- i N Hill v Wilkinson, 25 Neb 103 County Court. A bill of particulars is not necessary in an action of re- plevin commenced in the county court whenthe value of the property is with- in the jurisdiction of a justice of the peac e If, in such a case, a defective bill of particulars is filed, it is not sufficient ground for rendering judg- ment for the Defendant Coombs v Brenklander, 29 Neb 586 1 Den v Phillips, 21 N J L 436; Stevens v Webb, 12 Daly ( N Y) 88, 4 Civ Pro Rep ( N Y) 64 See also Vischer v Conant, 4 Co W ( N Y) 396 Pedigre e In an action for the re- covery of land, where the plaintiff sets up a claim to possession as heir at law without further detail, a de- fendant in possession is entitled to the particulars of the pedigree on which such heirship is base d Palmer v Palmer (1892), i QB 319 Ownership No Record Titl e A bill of particulars may be demanded where a defendant sets up owner- ship in fee in himself, and there is no record title of such ownershi P Lewis v Joiner (Supreme Ct), 5 N Y St Rep 301 Facts Known to Attorne Y Where in ejectment the plaintiff demands a bill of particulars concerning matters known to his attorney, the apparent object being to limit the defendant in his defense, the defendant should not be compelled to furnish the bil L Stevens v Webb, 12 Daly L( N Y) 88 Under North Carolina Code, 259, it is discretionary with the court to re- quire each defendant to file a bill of particulars describing the land claimed by him and disclaiming as to other land, after a severance in an action of ejectment in which there are several defendants and each de- fendant is in possession of a separate parce L Bryan v Spivey, 106 N Car 95- In Indiana a plaintiff, in an action to recover possession of land and to quiet title thereto, having filed a suffi- cient abstract of title, will not be re- quired to furnish a more specific bill of particulars, since in general a bill of particulars will- not be ordered in actions for tort.

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The court required the re- Post Date: Mon, 28 Jul 2008 19:11:26 +0000
Roberts v Vorn- holt, 126 Ind 511 2 Prospective Profit S In U S Land InveSt Co v Mercantile Trust Co 54 Hun ( N Y) 417, 7 N Y Supp 534, an action for specific perform- ance of an agreement to certify plain- tiff's bonds, and for damages for non- performance thereof, where the al- legations of the complaint as to damage were, that plaintiff had en- tered into large enterprises from which it would have realized great profit if the defendant had performed its contract, and that by reason of the defendant's refusal to perform its contract plaintiff had suffered great loss, a bill of particulars was directe d 9 Title to Offic e A bill of particulars may be ordered in an action to try the title to an offic e 1 10 Torts A IN GENERA L A bill of particulars may be de- manded and allowed in an action of tort. 2 b ACTIONS BASED UPON NEGLIGENCE particular! of Negligenc e In actions based upon negligence the court may order a bill of particulars of the time, place, and nature of the negligent acts, what rules were insufficient, and what appliances were unsaf e 3 1 People v Nolan, 10 Abb N Ca S ( N Y Supreme Ct) 471 Quo Warrant O In a quo warranto proceeding to try title to an office, the relator alleged that a sufficient num- ber of illegal votes were cast and counted for defendant to change the result. The court required the re- lator to give the aggregate number of such illegal votes, the grounds upon which the charge of illegality was based as to each class alleged, and when the votes were polled, but held that the defendant could not as of right claim a bill of particulars set- ting forth the names of the illegal voter S People -v Teague, 106 N CaR576 2 Dueber Watch Case Co v Noyes, 29 Abb N Ca S ( N Y Supreme Ct) 115, 21 N Y Supp 341; Orvis v Dana, i Abb N Ca S ( N Y C P I) 280, 6 Daly ( N Y) 434; Allen v Stead, 58 Hun ( N Y)6o4, n N Y Supp 536; Potter v U S Nat Bank, 67 Hun ( N Y) 652, 22 N Y Supp 453; Tilton v Beecher, 59 N Y 176, 17 A M Rep 337; Kutzelman v Sulli- van, N Y Daily Reg, May 27, 1894; Borda -v Philadelphia, etc, RCo, i W N C (Pa) 314; Furbush v Phillips, 2 W N C (Pa) 198 In actions of tort the demurrer fre- quently serves the purpose of a de- mand for a bill of particulars in an action of contra Ct Furbush v Phil- lips 2 W N C (Pa) 198; Peters v Philadelphia, 12 W N C (Pa) 5 Reasons for Belief In an action against a postmaster for the wrong- ful detention of certain letters of the plaintiff withheld under a regulation of the post-office department requir- ing him when he has "reason to be- lieve, that a fictitious address is used for forbidden circulation in the mails, etc," the defendant was required to give the facts and circumstances which induced the belief Wilson v Pear- son, 13 Fed Rep 386".

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Eberhardt v Schuster, 6 Post Date: Mon, 28 Jul 2008 18:55:10 +0000
Unliquidated Damage S Where the damages are unliquidated, it is enough to state the damage claime d Dean v White, 5 Iowa 266 In Indiana a bill of particulars will not be ordered, as a general rule, in actions for tort S Roberts v Vorn- holt, 126 Ind 511; Plymouth v Field, 125 Ind 323 In Michigan a bill of particulars cannot be required in an action on the case for consequential damage S People v Marquette Circuit Judge, 39 Mich 437; Kehrig v Peters, 41 Mich 475 In Arkansas the plaintiff in an action of trespass is not required to file an invoice of a stock of goods upon which the trespass was committe d Walker v Fuller, 29 Ark 448 3 McCarthy v Lehigh Valley RCo, 6 Mis C Rep ( N Y SupeRCt) 422; Kerch v Rome, etc, RCo (Su- preme Ct), 14 N Y St Rep 446; O'Hara v Ehrich (SupeRCt), 32 N Y St Rep 118, 58 N Y SupeRCt 250; Kearnes v Coney Island, etc, RCo (Supreme Ct), 17 N Y St Rep 692; Redmond v Buckley, 66 Hun ( N Y) 628, 49 N Y St Rep 10; Niden v Wolfenden, 12 Pa Co Ct Rep 398 Defense of Contributory Negligence, etc In an action by an abutting owner against an elevated railroad for damages to his property, where defendant set up that plaintiff was barred by his negligence, acquies- cence, etc, the defendant was re- quired to specify the acts and omis- sions in a bill of particular S Feeley v Manhattan RCo, 51 N Y SupeR Ct 535, 6 Civ Pro Rep ( N Y) 414 Compare Dazal v Haarren, 20 Abb N C ( N Y City Ct) 235, not e In an action to recover damages for injury to plaintiff's property by the negligence of defendant, the an- swer alleged negligent possession and custody of inflammable mate- rials, whereby the fire was caused, and an order was made that the de- Injuries Receive d The practice seems to be otherwise in regard to injuries received from such negligence, 1 especially where the amount of damages will depend on proof to be furnished after examination of the injuries, and may require the testimony of expert S 2 C CONSPIRACY, CONVERSION, AND ESCAPE conspirac Y In an action of tort founded upon conspiracy the plaintiff may be re- quired to furnish information to the defendant by a bill of par- ticular S 3 fendant furnish a bill "specifying wherein said materials were negli- gently and carelessly used or exposed by plaintiff so as to cause said fire," and also what dangerous or highly combustible materials were so care- lessly kept and expose d It was held that the first of such requirements should be stricken out and the other modified so as to require the defend- ant to specify the materials referred to, or, if he was unable to specify any further, to give as full a description as he was able to giv e Loeber v Roberts, 60 N Y SupeRCt 202, 9 N Y Supp 718 On the first point see also Richmond v Second Av e RCo (Supreme Ct), 19 N Y Supp 597 Death by Wrongful A Ct In an action for death by wrongful act, the plain- tiff cannot properly be required to furnish a bill of particulars of the negligence causing the deat H Murphy v Kipp, i Duer ( N Y) 659 IB Illinois it is not the practice to require a bill of particulars of alleged negligenc e Chicago, etc, RCo v Smith, 10 111 App 359 1 In an action for personal injuries the declaration must definitely charge the injury, and the defendant is not entitled to a bill of particular S Sha- dock v Alpine Plank Road Co, 59 Mich 7 Pain and Anguish, etc Where the plaintiff's petition alleges that she contracted small- pox in the defend- ant's hotel, and suffered great bodily pain and anguish, and has heen pre- sumably permanently disfigured in person, and has laid her damages at five thousand dollars, she should not be required to show items of damage by a bill of particular S Gilbert v Hoffman, 66 Iowa 205 2 Muller v Bush, etc, Mfg Co, 15 Abb N Ca S ( N Y Supreme Ct) 88, where Dykman, J, said: "Great caution should be exercised by the courts in requiring parties to furnish particulars in actions for damages resulting from negligenc e It is usu- ally impossible for a plaintiff to know with any degree of precision what his proof will be, and the bill of par- ticulars would, in most cases of that character, be an instrument of em- barrassment and injustic e" 3 Action for Boycottin g In an ac- tion for damages for a boycott a bill of particulars will be ordered giving the names of persons employed to injure the plaintiff with his patrons, the names and addresses of his patrons, and of those who withheld patronage on account of the defendant's wrong- ful act S Post Express Printing Co v Adams, 55 Hun ( N Y) 35, 8 N Y Supp 276 Action for Blacklistin g In an action to recover damages for preventing employers in plaintiff's trade from employing him, plaintiff will be re- quired to give a bill of particulars specifying the names and addresses of the employers who were influenced by defendant to refuse plaintiff em- ployment. Jutsum v Bricklayers', etc, Union (Supreme Ct), 29 N Y Supp 621 Customers LoSt One who claims damages resulting from a loss of cus- tomers by reason of an alleged con- spiracy may be required to furnish their name S Dueber Watch Case Co v Noyes, 29 Abb N Ca S ( N Y Supreme Ct) 115 Conspiracy to Withhold Evidenc e So in an action for conspiring to with- hold evidence in a previous action, particulars of evidence withheld, stating the names of the witnesses and what they would have testified to, the documents suppressed, etc, may be ordere d Leigh v Atwater, 2 Abb N Ca S ( N Y Supreme Ct) 419 Fraudulent Compositio N Where the Conversio N The same is true in an action for conversio N 1 Escap e And in an action against an officer for the escape of a prisoner in custody on civil process, the plaintiff may be required to give a bill of particulars specifying the time and place of the alleged escap e 2 d LIBEL AND SLANDERA bill of particulars is frequently ordered in actions for libel and slander, when the persons to whom the alleged libel or slander was published and the time and place are require d 3 plaintiff seeks to avoid a composi- tion with creditors, on the ground of a secret agreement whereby some creditors received more than others, a bill will be allowed specifying the names of creditors and the amount of such payment S Lowenstein v Schiff (City Ct), 28 N Y Supp 528 False Accounts and Bill S In an ac- tion for fraudulent conspiracy to pro- cure money on false vouchers, par- ticulars of the false accounts and the bills alleged to have been procured will be allowe d New York v Mar- rener, 49 How Pr ( N Y Supreme Ct) 36 Compare People z Tweed, 5 Hun( N Y) 353 Not to Disclose Proof In Higen- botam v Green, 25 Hun ( N Y) 214, in an action charging physicians with a conspiracy, in causing the incarcera- tion of the plaintiff in an insane asy- lum, they answered that from their professional examination and knowl- edge of the plaintiff's health and men- tal condition, from frequent observa- tion of plaintiff's actions, conduct, and habits, and from information as to the same, they believed him to be insan e It was held an improper exercise of discretion for the court to order the defendants to furnish to the plaintiff a bill of particulars, specifying the time and place when and where the actions of the plaintiff so referred to occurred, and what such actions were, when and where the observations re- ferred to were made and what was observed, and to preclude the defend- ants from giving evidence of any mat- ter in the premises not specified in the bill of particular S 1 A treasurer of an association, sued by the association for converting its money and for negligence where- by another official was enabled to do the same, is entitled to a bill of par- ticular S The Orden Germania v Devender, 12 Daly ( N Y) 500 List of Securities Converte d An ob- jection by plaintiffs that the books of the defendant contained an account of the securities alleged to have been converted was unavailing against a request for a list thereof, where the complaint did not charge the conver- sion of all the securities mentioned in the book S Allen -v Stead, 58 Hun ( N Y) 604, II N Y Supp 536 Misappropriating Bank Fund S In Friedberg v Bates, 24 Hun ( N Y) 375, an action against certain direc- tors of a bank, where the allegations in the complaint were grave in char- acter, involving responsibility for the conversion of funds received in a quasi-fiduciary capacity, the receipt of which was induced by fraudulent rep- resentations and with a fraudulent in- tent, a bill of particulars was ordere d A bill of particulars, however, was refused in an action by a stockholder against directors of a national bank for negligence and wrongful acts im- pairing its capita L Brownell v Gloversville Nat Bank, 24 N Y Wkl Y Di g 44 Particulars of Defens e An executor collected the proceeds of testatrix's life insurance, and concealed the fact from the legatees, who were entitled to receive it, for more than ten years, and when sued by one of the legatees for her share, claimed that he had spent the whole of it for her use and benefit while a minoRHeld, that he must furnish a bill of particulars, specifying the names of the persons to whom the money was paid, the dates of the respective payments, and the exact nature of the articles bought. Eberhardt v Schuster, 6 Abb N Ca S ( N Y Supreme Ct) 141 Defens e The defendant may be compelled to give a bill of particulars of the matters set up as a defense to such actio N 1 Special Ground S In libel and slander and kindred cases special grounds must be shown in order to support the motion for a bill of particular S 2 e MALICIOUS PROSECUTIO N In an action for maliciously suing out an attachment against the plaintiff without probable cause, the complaint alleging that plaintiff's credit and business were injured, it has been held that the defendant is not entitled McLean v Warring (Mis S, 1893), 13 So Rep 236; Bertuch v Dower, 6 Mis C Rep (Brooklyn City Ct) 601; Krauz v Dun, 8 Civ Pro Rep ( N Y Supreme Ct) 403; Williams v Fol- som (Supreme Ct), 37 N Y St Rep 635, reversing 26 Abb N Ca S ( N Y) 374; Jones v Platt, 60 How Pr ( N Y Supreme Ct) 277; Turner v Beavan, 23 Abb N Ca S ( N Y C P I) 432; Childs v Tuttle, 48 Hun ( N Y) 228; Orvis v Jennings, 6 Daly ( N Y) 434; Stiebeling v Lockhaus, 21 Hun ( N Y)457; McCarron v Sire, 14 Civ Pro Rep ( N Y City Ct) 252; Wood v Jones, 8 L T 856; Wren v Weild, L R4 QB 730; Slator v Slator, 8 L T N S 856; Lagan v Gibson, 9 IRR C L 507; Ecklin v Brady, 17 IRJuR188; Early v Smith, 12 IR C L R App xx X 5 Names and Addresses Particulars of Damag e Where a complaint for libel alleges as special damages that by reason of the publication many per- sons, firms, and corporations were intimidated, and canceled contracts ilready made with the plaintiff, and declined and refused to enter into contracts with him, whereby he was damaged, defendant is entitled to a bill of particulars stating how much plaintiff claims for loss of reputation, and the names and addresses of those who were intimidated and canceled contracts as allege d Jacobs v Water Overflow Preventive Co (Supreme Ct) 25 N Y Supp 346, 72 Hun ( N Y) In an Action for Slander of Title it is not necessary that plaintiff should furnish a bill in respect to his allega- tion of loss of customers and sales and rescission of contracts, as he can only recover such damages as are specifically allege d Childs v Tuttle, 48 Hun ( N Y)228 Where no Special Damages Claime d In an action of libel, where no spe- cial damages are claimed, defendant is not entitled to a bill of particulars stating how much plaintiff claims for a loss of reputation, how much for injured feelings, and how much by reason of defendant's personal ill- wil L Stokes v Stokes (Supreme Ct), 25 N Y Supp 405 Not to Disclose Proof Where the de- fendant has been furnished with a statement of the times and places, the plaintiff cannot be required to give the names of the witnesses in- tended to be cited in support of his clai M Dent v Ryan (Supreme Ct), 8 N Y Supp 806 1 Balls'.

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It is designed to secure Post Date: Mon, 28 Jul 2008 18:40:05 +0000
Evening Post, 38 Hun ( N Y) II ; Tallmadge v Press Pu b Co (Supreme Ct), 28 N Y St Rep 396; New York Infant Asylum v Roose- velt, 35 Hun ( N Y) 500, 7 Civ Pro Rep ( N Y) 307; Jacobs v Water Overflow Preventive Co (Supreme Ct) 25 N Y Supp 346, 72 Hun ( N Y) 637; American Multiple Fabric Co v Eureka Fire Hose Co, 18 Abb N Ca S ( N Y Supreme Ct) 70; Daniel v Daniel 2 Civ Pro Rep ( N Y C P I) 238; Butterfield v Bennett (SupeR Ct), 18 N Y Supp 432; Parnell v Walter, 24 QB Div 441 Justificatio N Thus, if justification of libel or slander is pleaded, particu- lars of the facts on which the defend- ant relies may be ordere d Co M v Snelling, 15 Pic K (Mas S) 321; Orvis v Jennings,, 6 Daly ( N Y)434; Wren v Weild, L R4 QB 730; Jones v Bewicke, L R5 C p 32 2 Lagan v Gibson, 9 IRR C L 507; Orvis v Jennings, 6 Daly ( N Y) 434; Herlock - U Lediard, 10 M W 677 Contr A In Orvis v Dana, I Abb N Ca S ( N Y C P I) 268, the ques- tion is treated at length, and the con- clusion arrived at that in these cases no bill of particulars should be al- lowe d / SEDUCTION AND CRI M CO N A bill of particulars is also allowed in the discretion of the court in actions for seduction and criminal conversatio N 2 g TRESPASS QUARE CLAUSU M In an action of trespass quare clausum there ought to be some special ground alleged, or some statement of the peculiar nature of the property, in order to justify a rule requiring the plaintiff to deliver a bill of particulars of premises and place S 3 11 Qui Tarn Actions and Criminal Prosecution S In most juris- dictions there is no distinction between civil actions, qui tarn actions to recover penalties, and criminal prosecutions, in the uses and requirements of bills of particulars; 4 although the utility of bills 2 Tilton v Beecher, 59 N Y 176, 17 A M Rep 337; Shaffer v Holm, 28 Hun ( N Y) 264, 3 Civ Pro Rep ( N Y) 81; Lagan v Gibson, 9 IRR C L 507- Gifts, etc, and "Seductiye Wile S" Where the complaint alleged that the defendant had alienated from the plaintiff his wife's affections by means of "gifts, presents, promises, threats and seductive wiles, influences and arts," and claimed damages therefor, the defendant was entitled to a bill of particular S Woods v Gledhill, 58 Hun ( N Y) 611, 35 N Y St Rep 597, 20 Civ Pro Rep ( N Y) 155 Particulars of Defens e Where in an action for seducing plaintiff's daugh- ter defendant in his answer alleged that she was a lewd woman, and that at divers times and places she had had intercourse with men, but with whom and at what particular places the de- fendant was unable to say, the defend- ant's objection that he could not fur- nish a bill of particulars as to the times and places at which and the persons with whom the intercourse alleged in the answer was had, more definitely than was stated in the an- swer, but that he hoped to be able to do so before the trial, could not pre- vail against the plaintiff's right to a bill of particular S The giving of a bill of particulars in such a case could not be avoided on the ground that the daughter alleged to have been seduced, who had made an affidavit in the plaintiff's behalf, had all the knowledge sought by the plaintiff, and that she could disclose the same, the affidavit made by the daughter having denied that she ever had illicit intercourse with any man save the Defendant Schwartz v Green, 60 Hun ( N Y) 582, 14 N Y Supp 833 3 Horlock v Lediard, 10 M W 677- 4 Co M v Snelling, 15 Pic K (Mas S) 329; People v Bellowse, i How Pr, N S ( N Y Oyer T Ct) 149; Peo- ple v Jaehne, 4 N Y Cri M Rep 161 Contr A In Missouri and Texas the practice of demanding a bill of par- ticulars in criminal cases has never prevaile d State v Quinn, 40 Mo App 627; State v Williams, 14 Tex 98 Special MatTer In a criminal case a bill of particulars is required when- ever the indictment fails to give no- tice of the special matter intended to be prove d Williams v Co M, 91 Pa St 493 Discretion Exceptio N The requir- ing of a bill of particulars on the trial of an indictment is within the discre- tion of the presiding judge, and his refusal to require is not a subject of exceptio N Co M v Wood, 4 Gray (Mas S) II ; Co M v Giles, i Gray (Mas S) 469; People v Tweed, 63 N Y 194 Embezzlement. " The order should never be refused where the court can see any reason to believe such par- ticulars necessary to inform the de- fendant of the particular transac- tions, or instances of embezzlement, intended to be proved against him, so as to enable him to meet the M" Christiancy, J, in People v Mc''n- of particulars will not be so common in criminal as in civil cases, because in criminal proceedings the facts to be tried must gener- erally be stated with precision on the record and put in issu e ney, 10 Mich 54 See also Rex v Hodgson, 3 C p 422; Rex v Booty- man, 5 C p 300 ftui Tarn Actio N In an action for not posting schedules of ferriage on the ferry-boats (required by statute) the defendant is entitled to a bill of particulars showing the name of each boat on which the omission is claimed to have occurre d Wray -v New York Cent, etc, RCo (Supreme Ct), 4 N Y Supp 355 Common BarratoROn an indictment for being a common barrator, where a general form of pleading is allowed, a bill of particulars may be require d Haw K p C, B K i, C 83, 13; God- dard v Smith, 6 Mo d 261; Co M v Davis, ii Pic K (Mas S) 432 Nuisanc e On an indictment for nuisance the prosecutor has been re- quired to specify particulars of the separate acts of nuisance which he intends to prov e Rex v Curwood, 3 A d E L 815; Reg -v Flower, 3 JuR558 Common GambleRA defendant in- dicted as a common gambler is not entitled to a bill of particulars or a specification of acts intended to be proven against hi M Co M v Moore, 2 Dana (Ky) 402 Fraudulent Pretense S In U S v Ross, i MorR(Iowa) 164, it was held that particulars of the pretenses, in an indictment for obtaining goods by false pretenses, would not be allowe d Not a Part of the Eecor d In Co M v Farrell, 105 Mas S 189, it was held that specifications of the offense in a crimi- nal case are not part of the record; nor is the commonwealth limited to them at a subsequent trial of the case in a higher court on appea L I DEFINITIO N A bill of peace is a bill filed in equity, praying for an injunction to stay a large number of separate suits involv- ing the same right, or to prevent the vexatious recurrence of in- conclusive litigation of the same right, and to adjudicate finally the whole controversy in the one suit. It is designed to secure repose from perpetual litigatio N 1 I I DIVISION INTO Two CLASSE S Such bills are of two kinds, and may be filed either, first, by a single plaintiff, or several plaintiffs, claiming a right against a numerous class, or by a few of a numer- ous class, on behalf of themselves and others, to establish a com- mon right against a single individual or several individuals ; or, secondly, by one person to restrain another from reiterating at law an unsuccessful clai M 1 II I GROUNDS OF JURISDICTION GENERALL Y Properly con- sidered, the bill is only an instance of the doctrine that equity will interfere to prevent a multiplicity of suits, of which it was the earliest applicatio N 3 Incidentally to this, jurisdiction is enter- tained to restrain oppressive litigation, suppress useless litigation, and prevent irreparable mischief 3 Instead of allowing the parties to be vexed and harassed by a multitude of separate suits, deciding only the issues between the parties to the particular suit, equity will intervene and settle the common right by decre e 4 While the rules governing the technical bill of peace do not justify a misjoinder of subjects or parties in the litigation, yet the number of parties and the multiplicity of actual or threatened suits may justify'the interference of equity, although the subject itself is not at all of an equitable nature, provided there is suf- ficient unity of interest on one side or the other to bring the liti- gation within the ordinary rules of equity pleadin g 5 1 " There are two kinds of bills of peace, and only two kind S The first is where courts of equity, on the sole ground of preventing multiplicity of suits, will try a title or have it tried upon proper issues, because there is a number of persons interested in it, and a great many actions at law would be necessary to conclude the titl e Suits concerning fisheries, parochial titles, etc, are of this kind and fall within this clas S Another class of cases is where the title has been fully and satisfactorily litigated at la W" Per Napton, J, in Patterson v McCamant, 28 Mo 210 "These bills are resorted to where several persons claim a right as against one or more, or one or more against many; and in such cases the rule which requires all persons in- terested to be made parties is relaxed; and courts of equity allow only a suf- ficient number of persons to be made parties, to honestly and fairly defend the rights involve d * * * There is another class of cases where bills of this kind are brought, viz.

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Dilly v Doig, 2 Ve Post Date: Mon, 28 Jul 2008 18:26:37 +0000
where a right claimed by an individual is indefinitely litigated by him without succes S" Per Murray, CJ, in Ritchie v Borland, 6Cal33 See also Huntington v Nicoll, 3 John S ( N Y) 595; Woodward v Seely, n 111 157, 50 A M De C 449, note; Bisp- ham E Q,4i5; Adams E Q, 199; 2 Story E Q Ju R, 854, 859; Lapeer County v Hart, HarRC H (Mich) 157- 2 Waddingham v Robledo ( N Mex, 1892), 28 Pac Rep 663; How v Bromsgrove, i Ver N 22; Fitton v Macclesfield, I Ver N 293; Disney v Robertson, Bun b 41; Riddle v Ram- sey, 52 Mo 153; Bay City Bridge Co v Van Etten, 36 Mich 210; Stone v Roscommon Lumber Co, 59 Mich 24; Imperial Fire In S Co v Gunning, 81 111 236; Richmond v Dubuque, etc, RCo, 33 Iowa 422 See Helmle v Queenan, 18 111 App 103 Where the liability of complainant to a multiplicity of actions is the re- sult of his own voluntary act, equity will not afford relief Jones v Ches- ter Oil Co, 17 111 App i N 3 Bond v Little, 10 Ga 395; Swift v Larrabee, 31 Con N 238 See also Dodd v Hartford, 25 Con N 238 4 Bispham E Q, 415; Ritchie v Dorland, 6Cal33 5 New York, etc, RCo v Schuy- Iv REQUISITES OF JURISDICTION 1 In Cases of the First Class A IN GENERA L It is said that, in general, jurisdiction of a bill of peace will not be entertained until the plaintiff has established his right at law ; but, in reference to this class, the rule is subject to the exception that equity will interfere to prevent a multi- plicity of suits before granting the relief sought ; requiring, how- ever, in a proper case, that the plaintiff shall litigate his right in a court of la W 1 It is no objection to the bill that some of the suits it seeks to enjoin are suits in equity; but the plaintiff should be entitled to maintain an action for independent affirmative relief, either equita- ble or lega L* b, NUMBER AND RELATION OF PARTIES NumbeRIn bills of this class the right claimed must affect many persons; 3 and where the bill is filed by one of a numerous class, it must be filed on be- half of himself and others, and not merely in his individual right. 4 Multifariousnes S And the bill will not lie where the plaintiff insists ler, 17 N Y 592; Bauer v Platt, 72 Hun ( N Y) 326, 25 N Y Supp 426, citing Board of Supervisors v Sara- toga County, 77 N Y 219 See also Louisville, etc, RCo v Ohio Valley Im P, etc, Co, 57 Fed Rep 42 1 Gunn v Harrison, 7 Ala 585; Morgan v Morgan, 3 Stew (Ala) 383; Ritchie v Borland, 6Cal33; Pawlet v Ingres, i Ver N 308; York v Pilking- ton, i At K 282, 9 Mo d 273 Also see Baird v Bland, 3 Munf ( Va) 570; Ambler v Warrick, i Leigh ( Va) 195; Adair v New River Co, n Ve S 444; Cor P of Carlisle v Wilson, 13 Ve S 276; Norfolk v Myers, 4 Mad d 83 In Tenham v Herbert, 2 At K 483, it was said: "It is certain, where a man sets up a general exclusive right and where the persons who controvert it with him are very numerous, and he cannot, by one or two actions at law, quiet that right, he may come into this court, first, which is called a bill of peace ; and the court will direct an issue to determine the right, as in disputes between lords of manors and their ten- ants, and between tenants of one manor and another; for in these cases there would be no end of bringing ac- tions of trespass, since each action would determine only the particular right in question between the plaintiff and Defendant" Personal Propert Y Where the sub- ject-matter of the bill relates to per- sonal property only, the right at law must have been previously estab- lished, unless an issue is necessary to bring in different interested partie S Lowe v Lowry, 4 Ohio 77 Number of Suit S In McHenry v Hazard, 45 Barb ( N Y) 657, it was said that two suits have never been considered sufficient to sustain the bill in cases of this clas S See Nevitt v Gillespie, i How (Mis S) 108, 26 A M De C 696 2 Allegany, etc, RCo v Weiden- feld, 5 Mis C Rep ( N Y Supreme Ct) 43, 25 N Y Supp 71 3 The number of litigants should be more than two or thre e Gunn v Harrison, 7 Ala 585; Moses v Mobile, 52 Ala 198; Kinkaid v Hiatt, 24 Neb 562; Eldridge v Hill, 2 John S C H ( N Y) 281; Woodward v Seely, n 111 157; Poyer v DesPlaines, 123 111 in; Nevitt v Gillespie, i How (Mis S) 108, 26 A M De C 696 4 A bill filed by one of two tenants against a lord seeking a declaration of commonable rights could not be maintained as a bill of peac e " You can only maintain your individual right to come here by connecting some other persons, and saying that this bill is in fact, not a bill merely to establish your right, and to have the lords restrained on your behalf, but that it is a right in which a number of other persons are interested, and therefore, according to the ordinary mode in which this court will exercise its jurisdiction to prevent a multi- plicity of suits, you ask the court to interfere in your favor and in favor of those other persons who are inter- upon different and diverse rights against several defendants, ad- mitting the claims of some and denying those of other S 1 In the technical bill of peace it is essential that there exist among the several individuals composing the numerous class, or between each of them and their single adversary, a common right or a common title from which all their separate claims and all the questions at issue aris e A mere community of interest in the questions of law and fact to be decided, or in the form and kind of remedy sought, will not be sufficient where the claims of each are separate and distin Ct 3 There have, however, been some cases in which bills not possessing this requisite have been sustained as bills of peace ; 3 and it is no objection to a bill that the defend- ants have a right to make a separate defense, provided only there be one general question to settle pervading the whol e 4 C INSTANCES OF JURISDICTIO N The earliest, and now class- ical, instances where bills of peace of the first class were enter- tained were suits between parsons and parishioners to establish a modus or a right to tithes ; suits between a landlord and his ten- ants to establish a right of common or right to a fine ; or by the owner of an ancient mill claiming service to his mill of all the ten- ants of a particular distri Ct 5 In more modern times illustrations este d" Phillips v Hudson, 36 L J C H 301, 16 L T, N S 221, 15 W R370 1 Saratoga v Seabury, n Abb N Ca S ( N Y Supreme Ct) 461 See Hayden v Thomson, 67 Fed Rep 276 2 Pomeroy EqT Ju R,268 Several Infringer S Thus, a bill of peace will not lie against several in- dependent trespassers having no com- mon claim; as, for instance, against several infringers of a copyright or patent. Dilly v Doig, 2 Ve S JR486; Bispham E Q, 417 Defendants with Distinct Bight S Where the rights and responsibilities of the several defendants neither arise from nor depend upon, nor are in any way connected with, each other, a bill of peace will not li e Randolph v Kinney, 3 Ran d ( Va) 394 3 See I Pomeroy E Q Ju R, 268 In York v Pilkington, I At K 282, 9 Mo d 273, a bill was brought by the plaintiffs, claiming a sole right offish- ing in the river Ouse, against the de- fendants, claiming several rights either as lords of manors or as occupiers of the adjacent land S The chancellor said: " In this respect it does differ from cases that have been cited of lords and tenants, parsons and parish- ioners, where there is one general right ana a privity between the par- tie S But there are cases where bills of peace have been brought, though there has been a general right claimed by the plaintiff, and yet no privity be- tween the plaintiffs and defendants, nor any general right on the part of the defendants, and where many more might be concerned than those brought before the court.

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Owing to the well-known oper- Post Date: Mon, 28 Jul 2008 18:15:18 +0000
Such are bills for duties, as in the case of London v Perkins (4 Br O p C 157), in the House of Lords, where the city of London brought only a few persons before the court, who dealt in those things whereof the duty was claimed, to es- tablish a right to it; and yet all the king's subjects may be concerned in this right; but because a great num- ber of actions may be brought the court suffers such bills, though the defendants might make distinct de- fenses, and though there was no privity between them and the cit Y" In Morgan v Morgan, 3 Stew (Ala) 383, where a bill for specific perform- ance was brought against B, and various judgment creditors of B were made parties, the bill was considered within the principle of a bill of peace; and it was held no objection that there was no privity or connection between the defendant S Eequisites of Jurisdictio N BILLS OF PEAC e Cases of the First Clas S of the technical bills of peace of this class have been confined principally to suits between numerous persons claiming similar rights in the same land, or to suits to prevent numerous judgment creditors of an insolvent from severallv enforcing their claim S 1 Conyers v Abergavenny, I At K 285; Cowper v Clark, 3 p Wm S 155 In 1681 a bill of peace was held a proper remedy, in a controversy be- tween a landlord and tenants concern- ing a right of common, to prevent a multiplicity of suit S How v Broms- grove, i Ver N 26 In 1684 a bill of peace brought by various tenants and a parson against a corporation claiming the profits of a fair, was held a proper remedy to quiet the complainants in their possession and to prevent a multiplicity of suit S Ewelme Hospital v Andover, i Ver N 266 Necessary Partie S Where a bill was brought to establish a general modus through a whole parish, it was neces- sary to make all the landowners either plaintiffs or defendant S Rudge v Hopkins, 2 E Q Ca S AbR170 1 See Caro v Pensacola City Co, 19 Fla 766 Record Title Imperfe Ct A party in full possession of real estate the rec- ord title to which was imperfect, was allowed to maintain a bill of peace against various persons who had sev- erally commenced ejectment suits against one of the lots, as he had an undoubted right to maintain a bill to quiet his title to the others; and the questions were the same as to al L Woods v Monroe, 17 Mich 238 Claimants Threatening to Take Posses- sion and Improv e In Waddingham v Robledo ( N Mex, 1892), 28 Pac Rep 663, it was held that the rightful own- ers of a tract of land might maintain a bill of peace against a large number of persons, claiming title under an in- choate grant from Mexico, who sought to take possession of, irrigate, and im- prove the same, and who would thus have occasioned the plaintiffs a multi- plicity of suits and compelled them to pay for such improvements, according to a statute providing compensation for improvements to claimants of title derived from such grant. Titles under Pre-emption and Home- stead Law S In Osborne v Wisconsin Cent RCo, 43 Fed Rep 824, the plaintiffs in possession claimed title to their several tracts of land under the homestead and pre-emption lawrf of the United State S The defendant company claimed the lands under an act of congress, and had brought, un- successfully, actions of ejectment against several of the plaintiffs, and threatened to bring actions against the other S Harlan, J, said: "While the plaintiffs have separate and distinct interests because of their respective claims of ownership of separate and distinct tracts of land, they have a com- munity of interest in the subject-mat- ter of the controversy relating to these lands, and a common source of title, namely, the action of the land depart- ment opening these lands for entry under the homestead and pre-emption laws of the United State S They have thus a community of interest in the questions of law and fact upon which the issue between the railroad com- pany and each plaintiff depend S The company's claim is good or bad against all the plaintiffs, as it may be good or bad against any one of them; and yet a judgment in favor of one, in an action of ejectment brought by the company, vvoura not avail the others in separate actions of eject- ment against the M The case is pe- culiarly one in which the jurisdiction of a court of equity may be invoked in order to avoid a multiplicity of suit S * * * In such cases the plain- tiffs are united by a common tie, cre- ated by identity of interest in the decision of the same questions of law and of fact, and have a common adver- sar Y The fact that the several tracts of land here in dispute were entered at different dates, and by different persons, is of no consequence, as the validity of each entry, as against the railroad company, depends upon pre- cisely the same questions of law and fa Ct" Where Defendants were in Part Posses- sion of land claimed by complainants, and to which complainants had estab- lished their title by various actions at law against persons in the same situa- tion as defendants, and the latter were committing continuous trespasses upon the land, a bill in equity by the complainants to quiet their title al- 560 Requisites of Jurisdictio N BILLS OF PEAC e Cases of the First Clas S d WHEN JURISDICTION WILL NOT BE ASSUME d In general, a bill of this character will not be entertained when brought to leging these facts, and also stating that, while their title was single and exclusive as against all the defend- ants, vet it could not be quieted with- out numerous actions at law involving the same question against the defend- ants, because the latter's claim among themselves was separate and distinct, presented averments making the case one of equitable cognizanc e Preteca v Maxwell Land Grant Co, 4 U S App 326, 50 Fed Rep 674 Claimants under Court Sal e Equity, to prevent a multiplicity of suits, has jurisdiction of a bill against numerous defendants, each claiming a part of the land under a sale made under the same order of court relating to the whole, even though the sales were absolutely void and the plaintiffs have an adequate remedy at la W De Forest v Thompson, 40 Fed Rep Conflicting Titles from a Patentee and His Heir S A bill will lie at the in- stance of numerous owners of town lots, all claiming under a grant from an equitable owner, in whose name, after his death, there was issued a patent to enjoin a suit at law by others claiming under a grant from the heirs of the patente e Crews v Burcham, i Black (U S) 352 See Central Pac RCo v Dyer, i Saw Y (U S) 650 Littoral Proprietor S In Smith v Smith, 148 Mass, i, a bill was enter- tained, to prevent a multiplicity of suits, by several littoral owners and lessees of fishing rights upon two great ponds, against commissioners, appointed several years previously to regulate the flowage and drainage of said ponds, who were proceeding to drain one pond at the expense of the other, although their powers had ex- pire d Execution Creditor and Subsequent Grantees of DebtoRWhere an execu- tion creditor has been put into posses- sion of lands by a tenant attorning to him, he may, to avoid a multiplicity of suits and remove a cloud from his title, maintain a bill against the debtor and his irresponsible gran- tees by conveyance, since the execu- tion sale and with notice, who have committed repeated trespasses, and who are threatening violence to any one holding under the creditoRCor- inth v Locke, 62 Vt 411 Receiver and Creditor S Various cred- itors of an insolvent national bank, after it had closed its doors, but be- fore the appointment of a receiver, obta Iied judgments against it and at- tempted unsuccessfully, by garnish- ing the pledgee, to secure liens on notes belonging to the bank which had been placed in the hands of a pledgee as security for a debt, on which there remained at the time of obtain- ing the judgments only a balanc e On the appointment of a receiver the pledgee refused to surrender the notes to him, but intrusted them to another bank for collection, whereupon the receiver sued to recover the M Held t that his suit was properly brought in equity against all the above partie S "Although several judgment creditors assert separate claims, based upon distinct judgments and proceedings, and they are acting independently of each other, still the controversy in the present suit is singl e It relates to property which the plaintiff seeks to recover possession of Each of said defendants claims to have a lien upon all and every part of said propert Y The object of the suit is to determine whether the plaintiff is entitled to have possession as he claims, and to determine what, if any, interest the defendants, or either of them, have in said propert Y" Chase v Cannon, 47 Fed Rep 674 A receiver of an insolvent domestic corporation who represents all the creditors, and who has brought a suit to set aside mortgages of the assets of the corporation, may maintain a bill to enjoin judgment creditors of the corporation from prosecuting like suits already begun by the M Brower v Baucus (Supreme Ct), 14 N Y Supp 462 Mortgagee and Creditor S A bill of peace cannot be maintained against a mortgagee by a judgment creditor and general creditors to enjoin the fore- closure of the mortgage, and for the appointment of a receiver, although the sale in the manner authorized by the mortgage would be prejudicial to- the other creditor S Buffalo Chem- establish the right of a party claiming in contradiction to a pub- lic right, as this would be against public policy ; * nor where the complainant has a plain, adequate, and complete remedy at law ; a nor, it seems, where a question of law merely is at issue ; 3 nor where the only object of the bill is to obtain a consolidation of numerous actions, which might be allowed at law if thought propeR4 2 In Cases of the Second Clas S The occasion for bills of peace of this class was furnished by the inconclusiveness of the verdict in the early action of ejectment. Owing to the well-known oper- ation and effect of the fictions in that action, one judgment was no bar to a second suit, so that the same claim could be almost indefinitely reiterated in successive actions by merely changing the date of the alleged demis e To prevent this harassing rep- ical Works v Bank of Commerce, 79 Hun ( N Y) 93, 29 N Y Supp 663 Controversy between Carrier and Own- ers Kespecting Insuranc e Where de- fendant, a common carrier, has in- sured goods of numerous owners for the benefit of them as well as of itself, and after the destruction of the goods has collected the insurance, equity will entertain jurisdiction of a bill filed by some of the owners on behalf of all who may join with them, to recover their proportionate shar e Pennefeather v Baltimore Steam Packet Co, 58 Fed Rep 481 Sheriff and Beneficiaries of Certain Tine S Where a statute provided that all fines imposed upon persons con- victed of a certain misdemeanor should be divided equally among Certain dis- pensaries of a city, a bill by one dis- pensary against a former sheriff, for discovery and payment into court of fines from such source for distribu- tion among the dispensaries entitled thereto, was sustaine d Snowden v Baltimore General Dispensary, 60 Md 85 1 2 Story E Q Ju R, 858, citing I Mad d C H Pr 139; Hilton v Scar- borough, 2 E Q AbR171, p I 2;Mitford E Q P I by Jeremy, 148 See also Let- ton v Goodden, L R, r E Q 123; Mc- Roberts v Washburne, 10 Min N 23; Chicago v Wright, 69 111 318 2 Ritchie v Borland, 6Cal33 But where the remedy in equity is more complete, embracing what might otherwise necessitate numerous suits, with a possible necessity of resorting to equity afterwards, the right to elect it seems unquestionabl e Olson v Morrison, 29 Mich 395 3 "Bills of peace, says another au- thority, have been sustained by the courts to settle the rights of parties in a single suit, in cases where the ques- tions to be determined were questions of fact, or mixed questions of law and fa Ct But no such bill can be sustained to restrain a defendant from suing at law, where the rights of the parties depend upon a question of law merely, and where the defendant in a suit at law must eventually succeed in his defense, without the aid of a court of chancery, if the law is in his favoRWest -v New York, 10 Paige ( N Y) 539" Per Wales, J, in Murphy z Wilmington, 6 HouSt (De L) 140 4 Multiplicity does not mean mul- titud e Murphy v Wilmington, 6 HouSt (De L) 139; Sheldon v Centre School DiSt 25 Con N 224 Thus, where a bill was filed to enjoin the prosecution of ninety-two ejectment suits, on the ground that the parties, pleadings, title, and testimony were the same in each, the relief was re- fused, as it was virtually a prayer for consolidatio N Peters v Prevost, I Paine (U S) 64 Numerous Cases in Justice's Court.

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D^bglass v McCoy, 5 Ohio Post Date: Mon, 28 Jul 2008 17:59:21 +0000
But where the defendants had com- menced seventy-seven different suits in a justice's court against the plain- tiffs for the recovery of penalties im- posed by a city ordinance for running cars without a license, a bill in equity to enjoin the further prosecution of the suits until the liability of the plaintiffs on one suit had been determined, was sustained, as the cases in the justice's court should not be consolidate d Third Av e RCo v New York, 54 N etition of an unsuccessful claim and to settle finally the disputed title in one suit, the jurisdiction in equity was established at an early period, limited, however, to cases where the complainant's right had been satisfactorily established at la W 1 In the earliest instance of a bill of this kind equitable jurisdiction was assumed only after five trials at law, all resulting in favor of the complain- ant ; 2 and it was long thought that several trials must necessarily precede the invocation of equitable aid ; 3 but it is now definitely established that there is no technical rule by which the jurisdiction of the court is dependent upon the number of trials, it being only required that the title shall have been satisfactorily established at la W 4 trial is generally regarded as sufficient. Contra, Dishong v Finkbiner, 46 Fed Rep 12 4 Nicoll v Huntington, i John S C H ( N Y) 166; Huntington -v Nicoll, 3 John S ( N Y) 601; Marsh v Reed, 10 Ohio 347; Knowles v Inches, 12Cal212 When the title is decided to have been satisfactorily established, the number of trials becomes unimportant. D^bglass v McCoy, 5 Ohio 222; Lyerly v Wheeler, Bus b E Q (N Car) 267 Doubtful Cas e But equity ought not to interfere in a doubtful cas e Bond v Little, 10 Ga 395 Discretion of the Court.

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