obtained, the court will restore the parties to their former situation, whatever their rights may be.110

Besides the cases of direct fraud in obtaining a decree, cases where fraud is implied will be treated as fraudulent, and the parties may be relieved by this sort of a bill. And it has been said that where an improper decree has been made against an infant without actual fraud, it ought to be impeached by original bill." When a decree has been made by consent, and the consent has been fraudulently obtained, the party aggrieved can only be relieved by original bill.

4142. A bill to impeach a decree for fraud must state the decree and the proceedings which led to it, with the circumstances of fraud on which it is impeached. The prayer must necessarily be varied according to the nature of the fraud used, and the extent of its operation in obtaining an improper decision of the court.113

4143. The necessity of a bill to carry a decree into execution generally arises when persons who have obtained a decree have neglected to proceed under it, in consequence of which their rights have become embarrassed by subsequent events, and it is necessary to have a decree of the court to settle and ascertain them. Sometimes such a bill is exhibited by a person who was not a party, and does not claim under any party to the original decree, but claims in a similar interest, or is unable to obtain the determination of his own rights till the decree is carried into execution; or it may be brought by or against a person claiming as assignee of a party to the decree. The court, in these cases, in general, only enforces and does not vary the decree; but, under certain circumstances, it has sometimes considered the directions, and varied them in case of a mistake. And it has even, in special circumstances, refused to enforce the decree, though in other cases it seems to have been considered that the law of the decree ought not to be examined on a bill to carry it into execution,115

Such a bill may also be brought to carry into execution the judgment of an inferior court of equity, if the jurisdiction of the court is not equal to the purpose.

4144. A bill to carry a decree into execution is, generally, partly an original bill, and partly a bill in the nature of an original bill, though not strictly original, and sometimes it is likewise a bill of revivor, or a supplemental bill, or both. The form of the bill is varied accordingly.

4145. The operation of a decree signed and enrolled has been suspended on special circumstances, or avoided by matter subsequent to the decree, upon a new bill for that purpose. An example of this is given in the English law. During the troubles after the death of Charles I, upon a decree for a foreclosure in the case of non-payment 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 consequence of his engagement with the royal party, and having requested the mortgagee to sell the estate to the best advantage and pay himself, which the mortgagee appeared 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 mortgagor from complying with

110 Birne v. Hartpole, 5 Brown, Parl. Cas. 197, Toml. ed.

11 See Massie v. Matthew, 12 Ohio, 351.

112 Pendleton v. Galloway, 9 Ohio, 178.

118 Mitford, Eq. Pl. Jeremy, ed. 94.

114 Este v. Strong, 2 Ohio, 418.

115 Mitford, Eq. Pl. Jeremy, ed. 95, 96. See Attorney General v. Day, 1 Ves. sen. Ch.

218.

the strict terms of it, and also made a new decree on the ground of the matter subsequent to the former decree.116

4146. A bill in the nature of a bill of revivor is one which is filed, when the death of a party whose interest is not determined by his death is attended with such transmission of his interest that the title to it, as well as the person entitled, may be litigated in the court of chancery; as, in the case of a devise of real estate, the suit is not permitted to be continued by a simple bill of revivor. An original bill, upon which the title may be litigated, must be filed, and this bill will have the effect of a bill of revivor, that if the title of the representative, by the act of the deceased party, is established, the same benefit may be had of the proceedings upon the former bill, as if the suit had been continued by bill of revivor."17

4147. The bill is said to be original merely for want of that privity of title between the party to the former and the party to the latter bill, though claiming the same interest, as would have permitted the continuance of the suit by a bill of revivor. Therefore, when the validity of the alleged transmission of interest is established, the party to the new bill shall be equally bound by and have advantage of the proceedings on the original bill, as if there had been such privity between him and the party to the original claiming the same interest; and the suit is considered as pending from the filing of the original bill, so as to save the statute of limitations, to have the advantage of compelling the defendant to answer before an answer can be compelled to a cross bill, and every other advantage which would have attended the institution of the suit by the original bill, if it could have been continued by bill of revivor merely.118

4148. An original bill in the nature of a bill of revivor must state the original bill, the proceedings upon it, the abatement, and the manner in which the interest of the party has been transmitted; and it must charge the validity of the transmission and state the rights which have accrued by it.119

4149. A distinction has been made between a supplemental bill and a supplemental bill in the nature of an original bill, which is said to be founded rather upon formal technical rules than upon any substantial difference. Indeed, the books usually confound them together. The most prominent distinction between them seems to be that a supplemental bill is applicable to cases only where the same parties or the same interest remain before the court; whereas, a supplemental bill, in the nature of an original bill, is properly applicable when new parties with new interests arising from events which have happened since the commencement of the suit are brought before the court." 120

This bill, though partaking of the nature of a supplemental bill, is not an addition to the general bill, which, in its consequences, may draw to itself the advantage of the proceeding of the former bill.11

4150. A supplemental bill in the nature of an original bill must state the original bill, the proceedings upon it, the event which has determined the interest of the party by or against whom the former bill was exhibited, and the manner in which the property has become vested in the person become entitled. It must show the ground upon which the court ought to grant the benefit of

116 Cocker v. Bevis, 1 Chanc. Cas. 61.

1171 Vern. Ch. 427, 2 Vern. Ch. 548, 2 Vern. Ch. 672.

f18 Child v. Frederick, 1 P. Will. Ch. 266; Mitford, Eq. Pl. Jeremy, ed. 97, 98.

119 Mitford, Eq. Pl. Jeremy, ed. 97.

120

Story, Eq. Pl. 22 345 to 353, and the cases there cited.

121 Mitford, Eq. Pl. Jeremy, ed. 99.

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the former suit, to or against the person so become entitled; and pray the decree of the court adapted to the case of the plaintiff in the new bill.12

122

4151. There are numerous bills which derive their names from the object which the complainant has in view. These, although classed together, are nevertheless those which might be placed under some of the heads which have been considered. The principal of these are bills of foreclosure, bills of information, bill to marshal assets, bill for a new trial, bills of peace, bills quia

timet.

4152. A bill of foreclosure is one filed by a mortgagee against the mortgagor for the purpose of barring the mortgagor's equity of redemption, or his right to redeem the mortgaged premises, so that he shall be for ever foreclosed.

This bill may be filed when the mortgagor has forfeited his estate by nonpayment of the money due on the mortgage at the time appointed, but still retains the equity of redemption. This bill calls upon the mortgagor to redeem his estate presently, or in default thereof, to be for ever closed and barred from any right of redemption."

123

4153. A bill of information, or simply an information, is a proceeding to institute a suit in chancery on behalf of the state or government, or those who partake of its prerogative, or whose rights are under its peculiar protection as the objects of a public charity. It is commenced by information in the name of the attorney general, and differs from other bills little more than in name. If the information immediately concerns the rights of the state, it is generally exhibited without a relator; if it does not immediately concern those rights, it is conducted at the instance and under the immediate direction of some person whose name is inserted in the information, and is termed a relator; the officers of the state in such or the like cases are not further concerned than as they are instructed or advised by those whose rights the state is called upon to protect and establish.124

4154. It sometimes happens that the relator has an interest in the matter in dispute in connection with the government, of the injury to which interest he has a right to complain. In this case, his personal complaint being joined to and incorporated with the information given to the court by the officer of the government, they form together an information and bill, and are so termed,125

4155. A bill to marshal assets is one filed in favor of simple contract creditors, and of devisees, legatees, or heirs, but not in favor of next of kin, to prevent specialty creditors who have a claim upon the personal and real estate of a deceased person from exhausting the personal estate to their injury, or of being substituted in their place.126

4156. A bill for a new trial is a bill filed in a court of equity, praying for an injunction after judgment at law, when there is any fact which renders it against conscience to execute such judgment, and of which the injured party could not avail himself in a court of law, or, if he could so have availed himself, he was prevented by fraud or accident, unmixed with any fault of himself or his agent.127 A bill of this kind is called a bill for a new trial.128

122 Mitford, Eq. Pl. Jeremy, ed. 99.

123 See Story, Eq. Pl. & 199; 1 Maddock, Chanc. Pract. 528.

These

124 Blake, Ch. Pr. 50. See Harrison, Ch. Pr. 151; Cooper, Eq. Pl. 101; Mitford, Eq. Pl. Jeremy, ed. 22, 23; Story, Eq. Pl. 8.

125 See Attorney General v. Oglender, 1 Ves. Ch. 247; Attorney General v. Brown, 1 Swanst. Ch. 265; Attorney General v. Heelis, 2 Sim. & S. Ch. 67 ; Attorney General v. East India Co., 11 Sim. Ch. 380.

126 1 Maddock, Ch. Pr. 615; Jeremy, Eq. Jur. 528, 529. 127 See Dodge v. Strong, 2 Johns. Ch. N. Y. 228.

128 Mitford, Eq. Pl. Jeremy, ed. 131; Story, Eq. Pl. & 887.

bills are not favored; indeed, of late years they have been much discountenanced.129

4157. A bill of peace is one which is filed by a person who has a right which may be controverted by various persons at different times and by different actions; in such case, to prevent a multiplicity of suits, the court will direct an issue to determine the right when a bill of this kind has been filed, and ultimately grant an injunction.130 This subject having been fully considered when we examined the exclusive jurisdiction of courts of equity, it will not be requisite here further to extend our inquiries.131

4158. A bill quia timet is one which is filed when a person is entitled to property of a personal nature after another's death, because he fears it may be destroyed by the present possessor; or when he is apprehensive of being subjected to a future inconvenience, probable or even possible to happen, or be occasioned by the neglect, inadvertence, or culpability of another.132

Upon a proper case being made out, the court will in one case secure for the use of the party the property to secure which is the object of the bill, by compelling the person in possession of it to guarantee the same by a proper security, entered into for that purpose, against any subsequent disposition or wilful destruction; and in the other they will quiet the party's apprehension of future inconvenience by removing the causes which lead to it.138

The rules which relate to bills quia timet engaged our attention when we considered the peculiar remedies of courts of equity, so that here no further examination will be required.184

4159. In substance, the bill in a suit in equity answers to the declaration in an action at common law to the libel or libellus articulus of the civil and canon law, a libel in the admiralty, or an allegation in the spiritual courts.

The form of a bill in equity has been greatly changed, as has already been observed, from what it was in its origin. It now consists of nine parts, which will be separately examined; and afterward will be considered the necessity of the several parts of such a bill and its other requisites.

4160. The first part of the bill is the address of the instrument to the court from which the plaintiff seeks relief. This address of course contains the appropriate and technical description of the court; as, "To the Judges of the Circuit Court of the United States for the District of New Jersey."

4161. The introduction is contained in the second part. It consists of the names of the parties complainants and their descriptions, in which their abode is particularly required to be set forth, that the court and the parties defendants to the bill may know where to resort to compel obedience to the orders or process of the court, and particularly for payment of any costs which may be. awarded against the plaintiffs, or to punish them for any improper conduct in the course of the suit. The omission to state this, if it would not be ground for demurrer,135 might subject the plaintiff to give security for costs.

This part of the bill should also show in what character the plaintiff sues, whether in his own right or autre droit, and such other description as is required

129 Mitford, Eq. Pl. Jeremy, ed. 131.

130 1 Maddock, Ch. Pr. 166; 1 Harrison, Ch. Pr. 104; Blake, Ch. Pr. 48; Jeremy, Eq. Jur. 343; 2 Story, Eq. Jur. 3 852 to 860.

131 See before, 3820.

182 See Lewen v. Stone, 3 Ala. N. s. 485; Randolph v. Kinney, 3 Rand. Va. 394; Redd v. Wood, 2 Ga. Dec. 174; Pebles v. Estill, 7 J. J. Marsh. Ky. 408; Green v. Hankinson, Walk. Ch. Mich. 487.

1381 Harrison, Ch. Pr. 107; 1 Maddock, Ch. Pr. 218; Blake, Ch. Pr. 37, 47; 2 Story, Eq. Jur. 28 825-851.

134 See before, 3805.

135 1 Daniell, Chanc. Pract. 463; Howe v. Harvey, 8 Paige, Ch. N. Y. 73.

to give the court jurisdiction. For example, when a suit is in the circuit court of the United States, the plaintiff must allege that he is a citizen of a particular state; as, "A B of Trenton, and a citizen of the state of New Jersey, brings this, his bill, against C D of New York, and a citizen of the state of New York. And thereupon your orator 136 complains and says that," etc.137

The names and description of the defendants may be stated in this part of the bill as above, or they may be named and described in the next part. The object of describing them is to know where and to whom the court and parties may resort to compel obedience to any order or process of the court.138

4162. The third part contains the case of the plaintiff, and is commonly called the stating part of the bill. It is a narrative of the facts and circumstances of the plaintiff's case, and of the wrong and grievance of which he complains, and the names of the persons by whom done and against whom he seeks redress.139

The facts which must be stated in this part of the bill may be considered with regard to those which relate to the title of the plaintiff to recover, the certainty with which they must be stated, the materiality of the plaintiff's statement, the multifariousness of the statement, the splitting of a cause of action, and the statement of the jurisdiction of the court.

4163. It is in general requisite that the plaintiff's equity should appear in this part,140 and that he should show a title in himself for the thing he claims; for unless every fact essential to the plaintiff's title to maintain the suit be stated in the bill, the defect will be fatal, because no facts are at issue except those charged in the bill, and of course no evidence can be given of them. The defendant has come to answer those matters only which are charged, and on those only can the court pronounce, because its decree must be secundum allegata et probata.111

4164. The bill must state with accuracy and clearness the right, title, and claim of the plaintiff, and with the same certainty the injury or grievance of which he complains and the relief which he asks. The other material facts should be briefly and plainly alleged, with necessary and convenient certainty of the essential circumstances, time, and place, and all other incidents.142

General certainty is sufficient in pleadings in equity. For example, in a bill for the specific performance of a contract, if it be alleged to be in writing, it is not indispensable to allege it to be signed by the party, because it will be presumed to be so signed.143

It is a general rule, which is founded in justice and common sense, that whatever is essential to establish the rights of the plaintiff, and is necessarily within his knowledge, must be alleged positively and with precision,1" and it is not a

136 The plaintiff entitles himself your orator, or oratrix, according to the sex. 137 Rules of Practice for the Courts of Equity of the United States, Rule 20.

138 No one is considered a party defendant to a bill in chancery, except such as is described and known as such, and against whom a subpoena is prayed. Carey v. Hillhouse, 5 Ga. 251. See 2 Johns. Ch. N. Y. 245; 2 Paige, Ch. N. Y. 449, 450; 1 Marsh. Ky. 594. 139 Barton, Suit in Eq. 27; Mitford, Eq. Pl. 43; Story, Eq. Pl. 27; Cooper, Eq. Pl. 9; 1 Daniell, Chanc. Pract. 465.

140 Flint v. Field, 2 Anstr. Exch. 543.

141 Cooper, Eq. Pl. 5, 7; Story, Eq. Pl. 82 28, 257; Barque Chusan, 2 Stor. C. C. 469; Boon v. Chiles, 10 Pet. 177; Parsons v. Heston, 3 Stockt. Ch. N. J. 155; Classen v. Lafrenz, 4 Greene, Iowa, 224; Chaffin v. Kimball, 23 Ill. 36; Bailey v. Ryder, 10 N. Y. 363.

142 Mitford, Eq. Pl. Jeremy, ed. 41, 42; Barton, Suit in Eq. 31, note 2; Story, Eq. Pl. 8 241.

143 Cozine v. Graham, 2 Paige, Ch. N. Y. 177; Dunn v. Calcraft, 1 Sim. & S. Ch. 543; Dennis v. Dennis, 15 Md. 73; Harrison v. Kramer, 3 Iowa, 543; Patterson, etc., Co. v. Jersey City, 1 Stockt. Ch. N. J. 434.

Mitford, Eq. Pl. Jeremy, ed. 41, 42; Story, Eq. Pl. 255; 1 Daniell, Chanc. Pract.