Laws

Nelms v State, 84 Post Date: Wed, 30 Jul 2008 16:27:44 +0000
State z La Bore, 26 Vt 765 Where, upon an indictment for bigamy, the defendant admitted that he had married M M held, that this was not evidence of the place of the marriage; and where the place alleged in the indictment was not proved, it was insufficient to sustain convictio N Tucker v People, 117 111 88 2 See indictment in the following cases: Co M v Richardson, 126 Mas S 34; Co M v Godsoe, 105 Mas S 464; Halbrook v State, 34 Ark 512; State v Sloan, 55 Iowa 218 ; Tucker v State, 117 111 90; Gorman v State, 23 Tex 646; Sanglein v State, 17 Ohio St 453; State v Palmer, 18 Vt 570; Kopke v People, 43 Mich 41 The second marriage, with all other facts constituting the crime of polyg- amy, should be set forth in the indict- ment, in order that the defendant may be prepared to defend himself Co M v Richardson, 126 Mas S 36 Cohabiting under Bigamous Mar- riag e Where the defendant con- tracted a bigamous marriage in Mis- souri and cohabited with his unlawful wife in Iowa, where he was indicted for bigamy the indictment alleging that the void marriage was celebrated at St Joseph, Mo and the jury were instructed that a finding of marriage anywhere in Missouri would support the allegation in the indictment held, that the allegation in the indictment as to the place of the void or bigamous marriage, not being essential as a jurisdictional matter or as establishing the specific character of the offense, need not be proved as lai d State v Nadal, 69 Iowa 483 Allegation of Ti Me In an indictment for cohabiting with a woman in the state, the accused havinga former wife alive, an allegation that the second marriage was on a certain day, and that the defendant did " afterwards cohabit and continue to cohabit with A in L of the said county" for a long time, etc, is a sufficient allegation as to the time when the offense was committe d Co M v Bradley, 2 Cus H (Mas S) 553; Co M v Godsoe, 105 Mas S 464 3 Parker v State, 77 Ala 47, 54 A M Rep 43; State v Johnson, 12 Min N 476 Second Marriage in Another Stat e Where the second or bigamous marriage occurred in a state other than that in which the indict- ment is found, there is some conflict of authority as to the allega- tion of its unlawfulnes S 1 Setting Out the Marriag e There should be no material variance in setting out the marriage, but no more particularity is required in this than in other case S 2 II I PLEA S The accused can plead as defense to a prosecu- tion for bigamy only those exceptions which are laid down in the statute under which the indictment is draw N 3 Where the second marriage was charged as felonious the court said, " We think it may fairly stand as charged to have been unlawfu L" While the word " unlawfully" is gen- erally inserted in conjunction with the term "feloniously," it would be overnice to hold that a felonious act need S any further qualification, or that an information is open to anything but verbal criticism for omitting the double qualificatio N Kopke v People, 43 Mich 42 1 Minnesota Where the second marriage was alleged to have taken place in another state, the indictment need not allege that the marriage was unlawful in that stat e State S John- son, 12 Min N 476 Ver Mont Where the indictment charged that both marriages were contracted in another state, and that the defendant cohabited with his sec- ond wife in the state in which suit was brought held, that the indictment should have alleged that the second marriage was unlawful in the state where it was contracted; and the omis- sion to make such allegation rendered the indictment fatal upon motion in arrest of judgment. State v Palmer, 18 Vt 570 2 Nelms v State, 84 Ga 466, 20 A M St Rep 377; Tucker v People, 122 111 583; State v Williams, 20 Iowa 98; People v CaldeR30 Mich 86; State v Patterson, 2 Ire d (N Car) 346; U S v Miles, 2 Utah 19; Reg v Deele Y 4 C p 579, i M C C 303- Name of Wif e Where the indict- ment charged that the defendant's lawful wife was one Nelms, whose name was not known held, that this was no ground for arresting judg- ment. Nelms v State, 84 Ga 466, 20 A M St Rep 377 Where tne indictment charged that the defendant was lawfully married to Mary I Bennett, while the proof showed a marriage to Mary Bennett held, that the variance was immateria L Tucker v People, 122 111 583 Where a person is called in an in- dictment by the name Deadema and it is proved her name is Diadema, the variance is not materia L State v Patterson, 2 Ire d (N Car) 346 Where an indictment averred the second marriage to have been made with Caroline Owens, but the proof was that it was contracted with Caro- line Owen held, that this was no ma- terial varianc e U S v Miles, 2 Utah 19 If there was a discrepancy between the Christian name of the prisoner's first wife, as laid in the indictment and as stated in the copy of the certifi- cate which was produced to prove the first marriage, the prisoner must be acquitted unless that discrepancy could be explained, or, in the absence of such explanation, unless it could be shown that the first wife was known by both name S Reg v Gooding, C M 297 Residence of Wif e Where the in- dictment charged that the defendant had intermarried with a certain woman in the city of Brooklyn, in the state of New York held, there was no material variance because the evidence went to show that it had occurred in the city of New York and not in Brook- ly N People v Calder, 30 Mich 86 3 People v Brown, 34 Mich 339; People -v Lambert, 5 Mich 349, note; Medrano v State, 32 Tex Cri M Rep 214; State v Hughes, 58 Iowa 165; Reynolds v, U S, 98 U S 145; Miles v U S, 103 U S 304 As to validity of defenses in prose- cutions for bigamy, see A M Eng Enc Y Law, tit BIGAM Y Iv INSTBTTCTION S It is proper to instruct the jury as to the kind of marriage necessary to support a conviction for bigam Y 1 But an instruction which, unexplained, would lead them to be- lieve that some intent was necessary to support a conviction, should be refuse d 2 1 Hayes v People, 25 N Y A M Rep 2 See also, as to intent, 395 Jones -v State, 67 Ala 83; Co M v 2 Dotson v State, 62 Ala 141, 34 Mash, 7 Met (Mas S) 474 As to Commissions to Take Testimony and Depositions generally, including all matters relating to the examinations of parties and witnesses before trial, see article DEPOSITION S Bills to Perpetuate Testimony, see article PERPETUATION OF TESTIMON Y I DEFINITION AND OBJE Ct A bill to take testimony # bene ess e is a bill in equity which is brought to take the testimony of wit- nesses to a fact material to the prosecution of a suit at law which is actually commenced, where there is good cause to fear that the testimony may otherwise be lost before the time of tria L 1 I I NATUR e Bills to take testimony de bene csse are similar in nature to bills to take testimony in perpetnam rei memoriam, and are often confounded with them, though they in reality stand upon distinct consideration S 1 The general rules, however, reg- ulating the latter are for the most part applicable to bills to take testimony de bene ess e* II I WHEN MAINTAINABLE 1 Generall Y Bills to take testi- mony dc bene esse can be brought only when an action is at the time pending, 3 and where a material witness is absent abroad, or is about to leave the jurisdiction, or is aged or infirm, or even, though not aged or infirm, if he is the only witness to a material fa Ct 4 Criminal Case S Such a bill will not lie to take testimony in criminal case S 5 1 See i Pomeroy E Q Ju R, 210, 213; 2 Story E Q JuR(i3th e d), 1513; 3 B L Comt N 438; Gil b FoRRoma N 140; 2 Barb C H Pr (2d e d) 145; Story E Q P I, 302 The Distinctio N Prof Pomeroy points out clearly the distinction be- tween the two suit S He says: " There is a very clear line of distinction be- tween this suit and that to perpetuate testimon Y While the latter could only be brought by a party who had no present immediate cause of action, this suit to take testimony de bene esse can only be maintained by one who has an existing cause of action or de- fense, and while the action of law is pendin g" I Pomeroy E Q Ju R, 213; Angell v Angell, i Si M S 83 This learned author also, in section 211, note 2, points out an error com- mitted by Justice Story in comparing the two suit S See Story E Q Ju R, Examination de Bene Esse Incidental to Suit to Perpetuate Testimon Y Not only is an examination de bene esse incidental to every suit at law or in chancery, but it may even be incidental to a suit to perpetuate testimony, where the evidence of the witness whose testimony is to be perpetuated is in danger of being lost before the suit for perpetuating it is ripe for a regular examinatio N I Barb C H Pr (2de d) 270; Frere v Green, igVe S 319; Da N C H Pr 934 The case of Philips v Carew, i p Wm S 117, seems to decide that a bill to take testimony de bene esse may be brought although no action is pend- ing at the time, and merely in con- templation of an action, where the plaintiff's witnesses are aged or in- fir M In the case of Angell v Angell, i Si M S 83, the vice-chancellor said, referring to the case in i p Wm S 117, that " the principle of that case, supposing it to be correctly re- ported, is not, however, very satisfac- tor Y Written depositions, on account of the infirmity which I have before referred to, are never to be received where, with reasonable diligence, viva voce testimony may be had; and the circumstance that the witnesses are aged and infirm should be rather a reason for the action being immediate- ly brought, to give the better chance of their living till the trial, than a rea- son for permitting the action to be in- definitely delayed at the pleasure of the plaintiff Whenever such a case occurs again the principle of Philips v Carew, r p Wm S 117, will come to be reconsidere d" 2 Story E Q Ju R, 1513, note 2 5 Ex p Harkins, 6 Ala 63; State v Fulford, 33 La An N 679; State v Fancy, 35 La An N 9 " The general rule certainly is that the witnesses must appear in court and be confronted with the accused part Y In trials for homicide the dying declarations of the person murdered may be given in evidence against the Defendant This is, I think, the only exception to the general rule which has been mentioned, except such as are based upon some statute la W" Per Bronson, J, in People v Restell, 3 Hill( N Y)2 94 .

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Iv WHO MAY MAINTAI N Post Date: Wed, 30 Jul 2008 16:10:41 +0000
2 Witness Age d A bill to take testimony de bene esse will lie to examine an aged witnes S 1 3 Witness Infirm or 111 And where a witness is so infirm or ill as likely to be unable to attend at the trial, this bill is propeR8 4 Witness the Only On e A court of equity will entertain a bill to take the testimony de bene esse of a material witness who is neither aged, infirm, nor ill, nor going beyond the jurisdiction of the court, if he is the only witness to an important fa Ct 3 5 Witness About to Leave Jurisdictio N Where a material witness is about to leave the jurisdiction, a bill to examine him de bene esse may be maintained ; 4 and this although he be only going into Ve S JR261 ; Lingan v Henderson, i Bland (Md) 236 Rule as to Ag e If a witness is sev- enty years old he is considered as being aged, within the rule, and the commission issues as a matter of cours e Story E Q PL, 308; Story E Q Ju R, 837, note 2; Cooper E Q P I 2 Philips v Carew, I p Wm S 117; Andrews v Palmer, i Ve S B 21; Dew v Clark, i Si M S 108; Shelley Material Witness Subject to Gout. WHere the age of the witness was not stated, but the affidavit upon which the application was made alleged only that the witness was subject to vio- lent attacks of the gout, and from these attacks was under the appre- hension of dying, and that he was a material witness, his testimony being required to prove the draft of a bond which he had prepared, but which was lost, the Court of Exchequer made an order for his examination de bene ess e Jepson v Greenaway, 2 Fow L E X Pr 103 Pregnanc Y In Abraham v Newton, 8 Bin g 274, it was doubted whether advanced pregnancy and imminent delivery are a cause for the examina- tion of a witness de bene ess e If so, it must be shown by affidavits of com- petent persons that the delivery will probably happen about the time fixed for the trial of the caus e Evidence Likely to be Lost by Deat H Upon a question of pedigree, where the case depends upon a chain of dis- tinct circumstances in the knowledge of different individuals, the death of one of whom would destroy the whole chain, the court will permit the ex- amination of such individuals de bene esse, although none of them comes within the description of witnesses whose testimony is in danger of being lost either from age or serious illnes S Shelley v , 13 Ve S JR58 3 Pearson v Ward, Dic K 648, r Cox 177; Hankin v Middleditch, 2 Br O C C 641; Brydges v Hatch, i Cox 423; Angell v Angell, I Si M S 92; Shirley v Ferrers, 3 p Wm S 78; Palmer v Ailesbury, 15 Ve S 299 Evidence of Title in Knowledge of Two Witnesse S Where a man was in pos- session of lands of his deceased wife, claiming as tenant by courtesy, it was held that he was entitled to a bill to- perpetuate the evidence of his title, where such evidence rested exclusive- ly in the knowledge of two witnesses notwithstanding the heirs at law con- testing his title had brought an action of ejectment and that age and in- firmity of the witnesses were not necessary to the maintenance of such bil L Hall v Stout, 4 De L C H 269 See Cholmondely v Oxford, 4 Br O C C 157- Witness in Priso N Where one of two surviving witnesses to a will was in prison charged with a capital fel- ony, but neither aged nor ill, an ap- plication for a commission to examine him de bene esse was refuse d Anony- mous, 19 Ve S JR321 4 Byrne v Byrne, 2 Mol L 440; Shir- ley v Ferrers, 3 p Wm S 77: Andrews v Palmer, i Ve S B 21; Corbett v Corbett, I Ve S B 335; Dew v Clark, i Si M S 108; Botts v Verelst, Dic K 454; Bown v Child, 3 Si M 457; Grove v Young, 3 De g S 397; M'Intosh v Great Western RCo, i Hare 328, another state or country under the same general sovereignt Y 1 It will not be allowed, however, if it rests in the power of the com- plainant to detain him till after tria L 2 6 Witness Resident Abroa d The bill will also lie where wit- nesses material to the case are resident abroa d 3 . Iv WHO MAY MAINTAI N The bill may be brought by persons interested, whether they be in possession or out of possession, in aid of the trial at law, 4 and whether they be plaintiffs or defend- ants in the actio N 5 v WHAT BILL SHOULD CONTAI N Care should be taken in fram- ing the bill to allege all the facts material to the right to have the remedy, 6 whether it be the age of the witness, his infirmity, or his being about to depart from the jurisdiction, or his being the only witness 7 and that a suit is then pendin g 8 V I AFFIDAVIT TO BIL L The bill should be supported by affi- davit setting forth the circumstances by which the evidence desired is in danger of being destroyed, 9 and alleging that the 13 JuR179 See Porter v Beltzhoover, 2 HarR(De L) 484 Amendment of Bil L Where a bill was filed for a commission to examine a witness abroad in aid of a trial at law, and the witness returned be- fore the commission issued reached its destination, it was held that, in or- der to examine the witness debeneesse, upon the ground that he was about to leave the country again before trial, the bill must be amende d Atkins v Palmer, 5 Mad d 19 1 Botts v Verelst, Dic K 454; Story E Q P I, 308 2 East India Co v Naish, Bun b 320 3 2 Story E Q Ju R, 1515: Thorpt v Macauley, 5 Mad d 218; Devis v Turnbull, 6 Mad d 146; Cock v Dono- van, 3 Ve S B 76; Angell v Angell, 1 Si M S 93; Mendizabel v Machado, 2 Si M S 483; Moodalay v Morton, i Br O C C 469; Bowden v Hodg e 2 SwanSt 258; Baskett v Toosey, 6 Mad d 260; Cheminant v De La Cour, 4 2 Story E Q JuR(i3th e d), 1513; Story E Q P I (loth e d), 307; Coo- per E Q P I 57; i Mad d C H Pr 153; Jeremy E Q JuR277, 278 But though a defendant may, equally with the complainant, examine a wit- ness de bene esse, he cannot obtain an order for that purpose before he has put in his answeRWilliams v Will- iams, Dic K 92; Sheward v Sheward, 6 The bill must contain averments that a suit is pending in which the testimony of the witnesses named will be material, that the suit is in such condition that the depositions cannot be taken in the ordinary methods pre- scribed by law, and that the aid of a court of equity is require d It must set out also the facts to be proved by the witnesses, that the court may judge of their materiality, the neces- sity for taking the testimony, and the danger of loss by dela Y Failure to make the proper averment in any'of these particulars is good ground for demurreRRichterz'.

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Rowe Witnesses not All Post Date: Wed, 30 Jul 2008 15:54:57 +0000
Jerome, 25 Fed Rep 679 8 Angell v Angell, i Si M S 83 In this case it was held that a bill is demurrable if it does not aver that an action is then pendin g 9 Story E Q P I (lOth e d), g 309 ; Cooper E Q P I 57 ; Mitford E Q P I (by Je R) 52; Angell v Angell, i Si M S 93; Philips v Carew, i p Wm S 117; Bellamy v Jones, 8 Ve S JR31; Shirley v Ferrers, 3 p Wm S 77 ; Andrews v Palmer, i Ve S B 23 ; Suffolk v Green, i At K 450 Reason for Requiring Affidavit. "The reason assigned " for requiring an affi- davit is that the tendency of the bill is " to change the jurisdiction of the subject-matter from a court of law to a court of equit Y This reason is perhaps not quite satisfactory, because the aim of the bill is in no sort to change the forum in witness is a material on e 1 The affidavit should also state the place of residence and give a description of the witnesses to be examine d 2 VI I DEFENSES TO BIL L By way of defense to a bill to take the testimony of witnesses de bene esse, the adverse party may show cause against such examination by casting doubt upon the good faith of the applicatio N 3 VII I WHO MAY ISSUE COMMISSIO N Courts of law have no authority by the common law to issue commissions to take the testimony of witnesses de bene esst, but courts of equity have al- ways been in the habit of exercising such jurisdictio N 4 which the merits of the case are to be heard and tried, but merely to prevent the loss of the testimony at the tria L A better ground would seem to be that the bill has a tendency to create delays and may be used as an instru- ment unduly to retard the trial, and therefore an affidavit that the bil L is well founded is require d" Story's E Q P I (loth e d), 309 See Angell v Angell, i Si M S 92 Witness the Only On e Where an application is made for a commission to take the testimony of a witness, on the ground that he is the only person who knows the facts, the affidavit should state the particular points to which his evidence is meant to appl Y Pearson v Ward, i Cox 177, Dic K 648 And it should be shown, not only that the witness knows the fact, but that he is the only person who does know it; and it should also show the ground for believing that the witness is the only perso N Mere information or be- lief on the part of the party making the affidavit is not sufficient. Rowe Witnesses not All Name d Where only a part of the witnesses were named in the affidavit, it was held sufficient, the bill appearing to be in good fait H Beresford v Easthope, 8 Dow L Pr Ca S 294; Dimon v Val- lance, 7 Dow L Pr Ca S 590 3 Lloyd v Key, 3 Dow L Pr Ca S 253 ; Adams v Corfield, 28 L J Exc H 31 Sufficient Defens e Where it is made to appear that the application has been delayed until a very short time before the departure of the witness, with the intention of preventing the cross-ex- amination of the witness, this would seem to be a sufficient cause for dis- missing the applicatio N Pirie v Iron, i M S 232 4 2 Story E Q JuR(i3th e d), 1514 ; Mitford E Q PL (by Je R) 149 ; Brown v Southworth, 9 Paige ( N Y)35 I Power Inherent in Chancery Court S The power to issue a commission for the examination of witnesses de bene esse is said to be inherent in courts of equity, independent of any power con- ferred by statut e Brown v South- worth, 9 Paige ( N Y) 351 But courts of common law possess it only so far as given them by statut e Mc- Cotter v Hooker, 8 N Y 497 In Macaulay v Shackell, i Bligh, N S, 119, Lord .

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Baker -' Post Date: Wed, 30 Jul 2008 15:43:30 +0000
Eldon said that " where witnesses reside abroad, and cannot or will not personally attend in England, the power of the courts of law is at an end, as they have no means of examining witnesses abroad; but both the courts of chancery and of exchequer, as courts of equity, have always entertained these bills as be- longing to one of their great sources of jurisdiction the relief against such accidents as are beyond the power of courts of law to ai d" In America this defect has long since been cured, " and indeed the authority given to our courts of com- mon law to take the depositions of witnesses, both at home and abroad, has been carried to an extent far be- yond what has been exercised by courts of equit Y" In England a recent statute has con- ferred authority upon the courts of common law to take the depositions of witnesses abroa d See Stat13 Geo Ill, C 63, 40, 44; Stati W M Iv, C 22; Starkie Ev (loth e d), 275 I X COST S There seems to be no distinction as to costs of ex- amination de bene esse and costs of ordinary examinations, except where the bill is filed to take the testimony in aid of a trial at la W 1 276; 2 Story E Q JuR(i3th e d), 1514, note3 1 Da N C H Pr (sthec I) 941 Where the plaintiff filed a bill to ex- amine witnesses de bene esse in aid of an action at law, and an order ex parte for such examination was obtained, but afterwards a demurrer to the bill was allowed, the court, besides the usual costs of the demurrer, allowed the defendant his costs of examination, but not those occasioned by his cross- examination of the witnesse S Dew v Clark, I Si M S 115 Costs Regulated by Rule of Court. Where the testimony is taken in aid of a trial at law, the costs must be regu- lated by rule of court with regard to bills to examine witnesses in perpet- uam rei memoriam; in which case a de- fendant is entitled to apply for his costs immediately after the examina- tion of the witnesses has been perfect- ed, upon the simple allegation that he did not examine any witnesses him- self Da N C H Pr (5th e d) 941 ; Foulds v Midgley, i Ve S B 138 Informatio N When the suit is instituted on behalf of the crown or government, or of those who partake of its prerogative (such as idiots or lunatics), or those whose rights are under its particu- lar protection (such as the objects of a public charity), the matter of complaint is offered to the court by way of information given by the proper officers of the crown or government, and not by way of petitio N 1 When the suit immediately concerns the rights of the crown or government alone, these officers proceed purely by way of infor- matio N 2 See article INFORMATION S When the suit does not immediately concern the rights of the crown or government, its officers depend on the relation of some person whose name is inserted in the information, and who is termed the relatoR3 Information and Bil L Sometimes it happens that the relator has an interest in the matter in dispute, in connection with the crown or government, of the injury to which interest he has Neilly, 7 Heis K (Tenn) 294 See also article BILLS OF REVIEW, poSt An executor desiring to obtain the instructions of the court should bring a bill, not a petitio N Gibbins v Shepard, 125 Mas S 541 But in that case, as no objection was made by the defendants to the maintenance of the proceedings by petition, and as the want of a prayer for process therein was amendable, the plaintiff's application was not dis- misse d In Ledyard's Appeal, 51 Mich 623, it was held that on a proceeding by petition a trustee could not be ap- pointed to take the place of one who had died without completing the exe- cution of his trust, a bill being nec- essary for that purpos e In Maine, a bill in equity brought un- der Rev Stat, C 47, 74 (by a receiver against the defendants, as stockhold- ers, to compel them to contribute to the payment of the company debts), may be inserted in a writ of attach- ment. Baker -'.

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Where a person entered land Post Date: Wed, 30 Jul 2008 15:28:40 +0000
Atkins, 62 Me 205 See also Skeele v Stanwood, 33 Me In Massachusetts, under the Statute of 1856, C 36, 2, a suit in equity to enforce the execution of a trust might be begun by a bill inserted in a writ of attachment, according to Rev Stat, C 90, 117 Crane v Adams, 16 Gray (Mas S) 542 1 Story E Q PL, 8 2 In the Federal Court S The at- torney-general of the United States has no power to maintain in his own name, "as he is the attorney-gen- eral of the United States," a bill in equity to repeal letters patent for an inventio N Att'y-Gen'l v Rum- ford Chemical Works, 32 Fed Rep 608 (where the court drew a distinc- tion between such a case and a pro- ceeding in equity to vacate letters patent granting lands obtained by fraud). Bill to Cancel Land Patent. Where a person entered land according to law, but omitted to obtain a patent for it, and another person afterwards obtained a patent by proceeding as if it were vacant land, know- ing at the same time that it was not vacant, the court set the patent aside upon an information in the nature of a bill in chancery, filed by the attor- ney-general of the United States, but "regretted that this was not a simple bill in equity brought by the United State S" U S v Hughes, n How ( U S) 552 See also People v North San Francisco Homestead, etc, Asso C, 38Cal564; Mullan v U S, 118 U S 271; Benton v Woolsey, 12 Pet (U S) 27; U S v Union Pac RCo, 98 U S 569; U S .

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7 This is the most Post Date: Wed, 30 Jul 2008 15:13:36 +0000
Mullan, 10 Fed Rep 785 3 Story E Q P I, 8; Mitford E Q P I (Tyler's e d, 1890), p 118 See article INFORMATION S a right to complai N In such a case his personal complaint is joined to and incorporated with the information given to the court by the officer of the crown or government, and then they form together an information and bill, and are so terme d 1 I I CLASSIFICATION 1 Different Kinds Enumerated General Divisio N The different kinds of bills have been arranged under several general heads: I Original bills which relate to some matter not before litigated in the court by the same persons, standing in the same interest S 2 2. Bills not original, which relate to some matter already litigated in the court by the same persons, and which are either an addition to or a continuance of an original suit, or bot H 3 3 Bills not original, but in the nature of original bill S 4 4 Certain bills that may be filed in the federal courts which are original bills, in a chancery sense, but regarded as supplementary or dependent, and of which the court will assume jurisdiction, irrespective of the citizenship of the partie S 5 Original Bills may be again divided into those which pray relief, and those which do not pray relief 6 Original Bills Praying Relief have been divided into : I Bills praying the decree or order of the court touching some right claimed by the party exhibiting the bill, in opposition to some right, real or supposed, claimed by the party against whom the bill is exhibited, or touching some wrong done in violation of the plaintiff's right. 7 This is the most common kind of bill, and is the species of bills to which this article is confine d 2.

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Moseby, 4 J J Post Date: Wed, 30 Jul 2008 14:55:39 +0000
Bills of interpleadeR(See article INTERPLEADE R)3 Bills of certiorar I (See article CER- TIORAR I) 8 Original Bills not Praying Relief are of two kinds: I Bills to per- petuate the testimony of witnesses (see article PERPETUATION OF TESTIMONY), or to examine witnesses de bene ess e (See Bills not Original are either (i) an addition to or a continuance of an original bill, as before stated, or (2) they are for the purpose of cross-litigation, or of controverting, or suspending, or reversing some decree or order of the court, or carrying it into executio N Of the former kind are (i) a supplemental bill (see article SUPPLEMENTAL PLEADINGS); (2) a bill of revivor (see article REVIVOR) ; (3) a bill both of revivor and supplement (see article REVIVOR). Of the latter kind 3 are (i) a cross-bill (see article CROSS-BILLS); (2) a bill of review (see article BILLS OF REVIEW) ; (3) a bill to impeach a decree upon the ground of fraud 3 (see article BILLS TO IMPEACH DECREES, etc); (4) a bill to suspend the operation of a decree, in special circum- stances, or to avoid it on the ground of matter which has arisen subsequent to it ; 4 (5) a bill to carry a decree made in a former suit into execution (see article BILLS TO ENFORCE DECREES) ; and (6) a bill partaking of the qualities of some one or more of these bills, such as a bill in the nature of a bill of revivor (see ar- ticle REVIVOR), or in the nature of a supplemental bill (see article SUPPLEMENTAL PLEADINGS), or in the nature of a bill of review (see article BILLS OF REVIEW) ; and others of a like characTer 5 2 Which are termed bills in the nature of original bill S Story E Q PL, 16 3 Story E Q P I, 20, 21; Cooper E Q P I, 62 In Mitford E Q P I (Tyler's e d, 1890), p P 130, 178, bills to impeach decrees for fraud are described as bills in the nature of original bills not original bill S So in Cooper E Q PL 63 In Story E Q PL, 21, bills to impeach decrees for fraud are assigned to the class of bills not origina L In section 426 of the same work the author says that "a bill of this sort is an original bill in the nature of a bill of revie W" In Daniell C H Pr (6th A M e d) 1584 it is denominated an original bil L So in Beach Mo d E Q Pr, 884 Courts frequently speak of it as an original bill in the nature of a bill of revie W Ex p Smith, 34 Ala 455; Dunklin v Harvey, 56 Ala 181; New- lin v McAfee, 64 Ala 364; Randall v Payne, i Tenn C H 142; Haskins v Rose, 2 Lea (Tenn) 708; Davoue v Fanning, 4 John S C H ( N Y) 199; Tilghman v Werk, 39 Fed Rep 681; Edmondson i. Moseby, 4 J J Marsh (Ky) 497; Person v Nevitt, 32 Mis S 180; McConnel v Gibson, 12 111 132; Keran v Trice, 75 Va 690 4 "Thus, during the troubles after the death of Charles the First, upon a decree for a foreclosure in case of nonpayment of principal, interest, and costs due on a mortgage, the mortgagor, at the time of payment being forced to leave the kingdom to avoid the consequences of his engage- ments with the royal party, and hav- ing requested the mortgagee to sell the estate to the best advantage and pay himself, which the mortgagee ap- peared to have acquiesced in ; the court, upon a new bill, enlarged the time for performance of the decree, upon the ground of the inevitable necessity which prevented the mort- gagor from complying with the strict terms of it, and also made a decree on the ground of the matter subsequent to the former decre e" Mitford E Q PL (Tyler's e d, 1890), p 192 citing Cocker v Bevis, i C H Ca S 61, and note, where the author says that "all cases determined soon after the Resto- ration, upon circumstances connected with the prior disturbed state of the country, ought to be considered with much attentio N" 2 Denomination when Immateria L The real nature of a bill is to be determined rather by its substance that is, by its allega- tions and object than by the title which the pleader chooses to give it.

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The third part Post Date: Wed, 30 Jul 2008 14:44:36 +0000
1 Although he may have given it a wrong name, yet if his averments show that he is entitled to relief, and the prayer will support a decree for such relief, the court will entertain the bill upon its merit S 8 II I THE SEVEKAL PARTS OF A BILL 1 Essential and Nonessen- tial Part S Originally a bill in equity consisted of nine parts, of which there were five principal parts to wit, the statement, the charges, the interrogatories, the prayer for relief, and the prayer for proces S 3 But all these, according to more recent authorities, may be dispensed with except the stating part and the prayer for relief 4 2 The Addres S The first part of a bill is the direction or ad- dress to the court from which it seeks relief 5 See article ADDRESS, Vo L I, p 234 3 The Introductio N The second part is the introduction, which contains the names and description of the persons exhibiting the bil L 6 (See article ADDRESS, Vo L I, p 234) In this part, also, are sometimes contained the names and appropriate description of the parties made defendants; 7 although these are now usually 1 Ex p Smith, 34 Ala 457; Arnold v Moyers, I Lea (Tenn) 315; Ridgely v Bond, 18 Md 433 2 McConnel v Gibson, 12 111 128; Arnold v Moyers, i Lea (Tenn) 315, where relief by removing cloud on title was granted under a bill entitled a bill of review; Ex p Smith, 34 Ala 457, and Carneal v Wilson, 3 Litt (Ky) 90, in which it was held that a decree might be set aside for fraud on a bill called a bill of review; North- man v Liverpool, etc, In S Co, i Tenn C H 312, where a bill called a bill of revivor and amended bill was treated as an original bill in the nat- ure of a supplemental bill; Ridgely v Bond, 18 Md 433, where a bill termed a bill of revivor was treated as an original bill in the nature of a bill of revivor; Dayton v Dayton, 68 Mich 437, where a bill for the discharge of a mortgage was treated as a bill to re- dee M See also Lamson v Drake, 105 Mas S 564; Belknap v Stone, I Allen (Mas S) 573 Defective Information not a Bil L A pleadingfiledas an information, though having many of the features of a bill, cannot be sustained as a bill when dismissed as an informatio N Att'y Gen'l v Evart Booming Co, 34 Mich 461, distinguishing Att'y Gen'l v Bristol, 3 Mad d 164; Att'y Gen'l v Vivian, i Rus S 226; Att'y Gen'l z/ Heelis, 2 Si M St U 67, and Att'y Gen'l v Catharine Hall, Ja C 381 3 Story E Q PL, 26; Comstock v, Herron, 45 Fed Rep 660 4 Comstock v Herron, 45 Fed Rep 660 "All that was ever essential to a bill was a proper statement of the facts which the plaintiff intended to prove, a specification of the relief which he claimed, and an indication of the legal grounds of such relief" Langdell E Q P I (2de d), 55- 5 A bill filed in the federal Circuit Court and addressed to the "Circuit Court, etc, in chancery sitting," is sufficiently addresse d Sterrick v Pugsley, i Fli P (U S) 350 6 Story E Q P I, 26 7 It is not necessary, in setting forth in the beginning of the bill who the plaintiffs are, to explain their connec- tion with or relation to the matters in respect of which the suit is brought. That is the office of the stating part of the bil L Savannah, etc, RCo v Lancaster, 62 Ala 555 The Age of Minor Plaintiffs described as minors need not be state d Stewart v Chadwick, 8 Iowa 463 In Florida a chancery rule requires that the names and places of abode of all the parties shall be stated in the 4 The Stating Part. The third part of the bill is the premises, or, as it is more usually styled, the stating part of the bill, which contains a narrative of the facts and circumstances of the plain- tiff's case, and of the wrong or grievance of which he complains, 8 and the names of the persons by whom done, and against whom he seeks redres S 3 This part constitutes the real substance and most important part of the bill; 4 and if it has not the proper legal certainty, the defect, unless removed, may become fatal in every subsequent state of the caus e 5 Every material fact ought to be distinctly stated in the premises; 6 for if a plea or a demur- introductory part of the bil L See Keen v Jordan, 13 Fla 327 The omission of the name of a de- fendant in the introductory part is a ground for special, but not for gen- eral, demurrer; nor can such objection be taken in the appellate court when the record does not show that it was presented to and passed upon in the lower court.

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2 The rules Post Date: Wed, 30 Jul 2008 14:28:46 +0000
McCoy v Boley, 21 Fla 803 In New Jersey it is held that if a bill in its premises sets forth sufficient facts to show that the plaintiff is en- titled to relief in a representative ca- pacity, or that the defendant is liable in a representative capacity, it is not necessary that either should be so styled in the commencement or con- clusion of the bil L Ransom v Geer, 30 N J E Q 249 In Tennessee section 4313 of the code directs that the address of the bill shall be followed by the names and resi- dences of the partie S See Grubbs -v Cotter, 7 Baxt (Tenn)432; Walker S Cottrell, 6 Baxt (Tenn) 271 In West Virginia a plaintiff suing as executor should specifically describe himself as the executor of his testatoRDescribing himself as " personal rep- resentative," etc, is not sufficient. Capehart v Hale, 6 W Va 547 See Cook v Dorsey, 38 W Va 197 In the United States Courts Equity Rule 20 requires the names of all the parties to be stated in the introductory part of the bil L See U S v Pratt Coal, etc, Co, 18 Fed Rep 708 They cannot be designated by ficti- tious name S Kentucky Silver Mi N Co v Day, 2 Saw Y (U S) 468 As to allegations of citizenship of the parties, required by the same rule to be inserted in this part of the bill, see article UNITED STATES COURT S Pointing out Partie S See further, as to the necessity of distinctly show- ing in some part of the bill what per- sons are intended to be made parties thereto, Designation of Parties, Iv 4, infr A The Conclusion of the Stating Part usu- ally is (after narrating the facts of the title of the plaintiff) as follows: " And your orator well hoped that no disputes would have arisen touching the said, etc [stating the subject-matter]; but that the said defendant would have complied with the request of the said orator, etc, as in conscience and equity he ought to have don e But now so it is, may it please your lord- ship (or honors), that the said de- fendant, combining and confederat- ing," etc Story E Q P I, 27, not e 3 Story E Q PL, 27 The names of the defendants are sometimes stated in the introductory part of the bil L See II I 3, supr A 4 Story E Q P I, 27; Freichnecht v Meyer, 39 N J E Q 551 5 Story E Q P I, 27; Flint v Field, 2 AnstR543 See also article DEFI- NITENESS AND CERTAINT Y 6 Story E Q P I, 27; Freichnecht v Meyer, 39 N J E Q 551; Midland RCo v Hitchcock, 34 N J E Q 278; Hobart v Andrews, 21 Pic K (Mas S) 534; Wright v Dame, 22 Pic K (Mas S) 55; Bushnell v Avery, 121 Mas S 148; Rice v Merrimack Hosiery Co, 56 N H 114; Thompson's Appeal, 126 Pa St 367 Statement by Way of Charg e A state- ment of matters of fact in the stating part of abill, but in the form of a charge, is sufficient on general demurrer, where it is evident that a statement by way of allegation or averment was intended by the pleadeRJohnson v Helmstaedter, 30 N J E Q 124 rer is put in, its validity will be decided with reference to the stating part of the bill, and not with reference to the interroga- tory * or other parts of the bill, if these vary from the stating part. 2 The rules as to the proper mode of stating the facts in this part of the bill are fully considered in other divisions of this articl e 3 5 The Confederating Part.

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In the Introductory Part Post Date: Wed, 30 Jul 2008 14:09:43 +0000
The fourth part of a bill is what is commonly called the confederating part. It contains a general allegation or general charge of a confederacy between the defendant and other persons to injure or defraud the plaintiff 4 This clause, though frequently, but not invariably, inserted in bills, is treated as mere surplusage, and need not be denied or responded to in the answer ; 5 and in some jurisdictions its use is dispensed with or expressly forbidden by statut e 6 to the plaintiff unknown, but whose names, when discovered, he prays may be inserted in the bill, and they be made parties defendants thereto, with proper and apt words to charge them withthe premises, in order to injure and oppress the plaintiff in the premises, do absolutely refuse, etc ,or pretend, etc" 5 Story E Q P I, 29; Oliver v Haywood, i AnstR82; Adams v Por- ter, i Cus H (Mas S) 170 6 In Alabama, section 3422 of the code requires the omission of the com- bination and confederacy claus e So in Tennessee, by section 5057 of the cod e In West Virginia the confederacy clause is not contained in the form of bill prescribed by the code, C 125, 37 In the Federal Court S United States Equity Rule 21 provides that " the plaintiff in his bill shall be at liberty to omit at his option the part which is usually called the common con- federacy clause of the bill, averring a confederacy between the defendants to injure and defraud the plaintiff" In Massachusetts a chancery rule provides that the allegation of combi- nation and fraud shall be omitted in all bills in which no actual fraud or combination is specifically charge d Adams v Porter, i Cus H (Mas S) 170 In Maine Chancery Rule i (37 Me 581) provides that the usual formal averment of combination shall be omitte d In New Hampshire the allegation of confederacy is not essential, except where it is intended to charge fraud and combination specificall Y Stone v Anderson, 26 N H 506; Chancery Rule 3 (38 N H 605). In the Introductory Part of the bill the plaintiffswere named anddescribed ' 'as trustees of divers parties," who were also described ; and it was heldon de- murrer that it was not a sufficient state- ment of title or interest in the plain- tiffs to enable them to maintain the suit, in the absence of any allegations in the stating part of the bil L Savan- nah, etc, RCo v Lancaster, 62 Ala But see Lingan v Henderson, i Bland (Md) 249, to the point that the interrogating part may be considered for the purpose of explaining an am- biguity in the stating part.

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