« ZurückWeiter »
processes are required, founded on peculiar circumstances, such as writs of injunction, writs of ne exeat regno, orders to transfer funds, or to preserve property pending litigation, they are usually made the subject of special prayer. In general, these things will not be granted under a general prayer, because the defendant might, by his answer, make a different case under the general prayer from what he would make if the bill prayed specially for the thing which was thus to be decreed.17
4179. He then concludes his bill with a prayer for general relief. This can never be omitted with safety, because if the plaintiff should mistake the relief to which he thinks himself entitled by his special prayer, he may be relieved when he shows a right under his prayer for general relief, but such relief must be consistent with the special relief prayed for ; 176 " as to this point the rule is
' that if the bill contains charges, putting facts in issue that are material, the plaintiff is entitled to the relief which those facts will sustain under the general prayer, but he cannot desert special relief prayed, and under the general prayer ask relief of another description, unless the facts and circumstances charged by the bill will, consistently with the rules of the court, maintain that relief.”
To entitle a plaintiff to a decree under the general prayer different from that specifically prayed, the allegations relied upon must not only be such as to afford a ground for the relief sought, but they must have been introduced into the bill for the purpose of showing a claim to relief, and not for the mere purpose of corroborating the plaintiff's right to the specific relief prayed; otherwise the court would take the defendant by surprise, which is contrary to its principles. 178
4180. When it is doubtful with the plaintiff, or those who advise him, whether he is entitled to the special relief he wishes to pray for, it is not unusual so to frame the prayer that if one species of relief sought is denied, another may be granted. Bills with a prayer of this description, framed in the alternative, are called bills with a double aspect.
But in such case the plaintiff must sue in the same capacity, and not in two distinct characters. Nor can the plaintiff allege two inconsistent states of fact, and ask relief in the alternative, but he may state the facts and ask relief according to the conclusion of law which the court may draw from them, although this may be presented in two or more alternatives. 18)
4181. Next after the prayer for relief follows the prayer for process, to compel the defendants to appear, answer the bill, and abide the determination of
Savoy v. Dyer, Ambl. Ch. 70, and note; Moore v. Hudson, 6 Madd. Ch. 218. It is provided in the twenty-third rule of the Rules of Practice for Courts of Equity of the United States, that if an injunction or a writ of ne ereat regno, or any other special order pending the suit is asked for in the prayer for relief, that shall be sufficient without repeating the same in the prayer for process.
176 Soden v. Soden, cited in Hiern v. Mill, 13 Ves. Ch. 119; Grimes v. French, 2 Atk. Ch. 141; Mitford, Eq. PÍ. Jeremy, ed. 38; Hollis v. Carr, 2 Mod. 86; 3 Woodesson, Lect. 372; Cooper, Eq. Pl. 14; 1 Daniell, Chanc. Pract. 490; Hobson v. McArthur, 16 Pet. 182, 195; English v. Foxall, 2 Pet. 595 ; Colton v. Ross, 2 Paige, Ch. N. Y. 396; Pleasants v. Glasscock, 1 Smedes & M. Ch. Miss. 18, 24; Foster v. Cook, 1 Hawks, No. C. 509.
177 Hiern v. Mill, 13 Ves. Ch. 119; Potter v. Marvin, 4 Minn. 525; McCulloch v. Dodge, 6 R. I. 346; Espiniola v. Blasco, 15 La. Ann. 426; Casaday v. Woodbury, 13 Iowa, 113; Hill v. Beach, 1 Beasl. Ch. N. J. 31; Denison v. League, 16 Tex. 399.
178 Stevens v. Guppy, 3 Russ. Ch. 171; 1 Daniell, Chanc. Pract. 492, 493.
179 Mitford, Eq. Pl. Jeremy, ed. 39; Bennet v. Wade, 2 Atk. Ch. 325; 1 Daniell, Chanc. Pract. 496; Barton, Suit in Eq. 41 ; Cooper, Eq. Pl. 14.
100 Judge Redfield in Story, Eq. Pl. 8 42, a, 42, b; Rawlings v. Lambert, 1 Johns. & H. Ch. 458; Evan v. Avon, 29 Beav. Rolls, 144; Redmond v. Dana, 3 Bosw. N. Y. 615; New York Co. v. North Western Co., 23 N. Y. 357.
the court on the subject. Particular attention must be given to this part of the bill, and all persons who are intended to be made parties must here be named as such, for it is a rule that none are parties, though named in the bill, against whom process is not prayed. 181
4182. The most ordinary process prayed for is the writ of subpæna, which requires the defendant to appear and answer the bill on a certain day, named in the writ, under a certain penalty; and when the attorney general is made defendant to a bill, instead of praying process against him, prays that he may answer to it upon being attended with a copy.182 When a corporation aggregate is defendant, the process of subpoena is the same as in ordinary cases; but sometimes the bill prays that in case of their default to appear and answer the bill, the writ of distringas may issue to compel the corporators to do so.
The writ of subpæna to compel an appearance to a suit in equity was introduced into the court of chancery by Bishop Waltham, who was chancellor in the reign of Richard II.183
4183. For the purpose of preserving property in dispute pending a suit, or to prevent evasion of justice, the court either makes a special order on the subject, or issues a provisional writ; as the writ of injunction to restrain the defendant from proceeding at the common law against the plaintiff, or from committing waste, or doing an injurious act; the writ of ne exeat regno to restrain the defendant from avoiding the plaintiff's demand by quitting the state; and other writs of a similar nature. When a bill seeks to obtain a special order of the court, or a provisional writ, for any of these purposes, it is usual to insert, immediately before the prayer of process, a prayer for the order or particular writ which the case requires; and from this the bill is then commonly named an injunction bill, or a bill for a writ of ne exeat regno.184 Sometimes the writ of injunction is sought not as a provisional remedy merely, but a continued protection to the rights of the plaintiff, and the prayer of the bill must then be framed accordingly.
4184. The formal parts of a bill which have just been examined are those of an original bill as it is usually framed. Some of them are not essential, and may, as has been observed, be inserted or omitted in the discretion of the person preparing it; and in the United States courts they may be omitted by the authority of a rule of court.
The indiscriminate use of these parts of a bill in all cases has been considered a common reproach to practitioners in this line, because every bill contains the same story three times told.196 In the hurry of business it may be difficult
Cary v. Hillhouse, 5 Ga. 251; Cooper, Eq. Pl. 16; Fawkes v. Pratt, 1 P. Will. Ch. 593; Brasher v. Van Cortlandt, 2 Johns. Ch. N. 'Y. 245; í Smith, Ch. Pr. 45; Mitford, Eq. Pl. Jeremy, ed. 164.
182 In the case of a subpæna between one of the states of the Union and another, the writ is directed to be served severally on the governor of the defendant state and its attorney general. The state of New Jersey v. The People of the state of New York, 3 Pet. 461.
1 Spence, Eq. Jur. 369, note (d); Barton, Suit in Eq. 7, 61, note; 3 Reeves, Hist. of Law, 192.
184 In some of the states it is not indispensable that this process should be prayed for in the bill. See Story, Eq. Pl. § 44, note 2, 4th ed. ; 1 Daniell, Chanc. Pract. 503.
An approved form of prayer for process in which a special writ is prayed is as follows: After asking in the prayer for relief for the special relief required, "May it please your Honors to grant unto your orator not only a writ of injunction, or writ of ne ereat regno, conformably to the prayer of this bill, but also a writ of subpoena directed to the said defendants, commanding them by a certain day and under a certain penalty to be and appear in this honorable court, then and there to answer the premises, and to stand to and abide such order and decree as may be made against them."
186 Rules of Practice of the United States courts, Rule 21. 186 See Macnamara v. Sweetman, 1 Hog. Rolls, Ir. 29.
to avoid giving ground for the reproach ; but in a bill prepared with attention, the parts will be found to be perfectly distinct, and to have their separate and necessary operation.187
4185. In general, the facts contained in a bill must be verified by an affidavit attached to it as to their truth, and, in some cases, the omission of an affidavit will be good ground of demurrer. 188
4186. For the purpose of avoiding the introduction in a bill of matter criminal, impertinent, or scandalous, it is required that every bill shall be signed by counsel; and if it contain such matter, it may be expunged, and the counsel ordered to pay the costs to the party aggrieved ; but nothing relevant is considered as scandalous 189
187 Mitford, Eq. Pl. Jeremy, ed. 47.
188 1 Daniell, Chanc. Pract. 503; Banninger v. Andrews, 5 Jones, Eq. No. C. 348; Col. lins v. Barksdale, 23 Ga. 602; See Hilton v. Lothrop, 46 Me. 297. 189 Mitford, Eq. Pl. Jeremy, ed. 48; Anon, 1 Mylne & C. Ch. 78; See before, 4167
THE BILL AND
PROCEEDINGS BETWEEN THE FILING OF
4188. Filing the bill.
4193. The defendant's appearance.
4197. The writ of attachment.
4187. Having considered the several kinds of bills, the cases in which they may be filed, and the several frames or forms of such bills, the next matter to occupy our attention will be the proceedings between the filing the bill and the defence. These relate to the filing of the bill and the subpena, the process to com pel obedience to it, and bills taken pro confesso.
4188. After a bill has been prepared according to the rules stated in the foregoing chapter, and affidavit has been made to the truth of the facts it contains, when such an affidavit is required, it should be signed by counsel and taken to the office of the clerk of the court, who will issue a writ of subpæna as a matter of course. This is a prerequisite; the bill must be filed before a subpæna can issue. In this matter the proceedings differ from an action at law, where the writ of summons, capias, or attachment issues in the first instance, and a declaration corresponding with the bill in chancery is afterward filed. By the rules of courts of the United States it is directed that no process of subpoena shall issue from the clerk's office in any suit in equity until the bill is filed in the office.
4189. When the bill is filed, the clerk issues the process of subpæna, of course, upon the application of the plaintiff or his attorney; this process is usually returnable on the next rule day.
A writ of subpæna to appear and answer, unlike other writs in its form, is addressed to the defendant instead of being addressed to the sheriff or marshal, and commands him that within a certain time he cause an appearance to be entered for him in the court to a bill therein described, filed against him, and that he do answer concerning such things as shall then and there be alleged against him, and that he shall observe what the said court shall direct in this behalf upon pain of an attachment against his person, and such other process as the court shall award. At the bottom of the writ is placed a memorandum
i Rule 11.
? 2 Smith, Chanc. Pract. 487; 1 Daniell, Chanc. Pract. 556; 2 Maddock, Chanc. Pract. 196. The act regulating processes in the courts of the United States provides that the forms and modes of proceeding in the courts of equity, and in those of adm
alty and maritime jurisdiction, shall be according to the principles, rules, and usages which belong to courts of equity and courts of admiralty, respectively, as contradistinguished from courts of common law, subject, however, to alterations by the courts. This act has been gen
that the defendant is to enter an appearance at the clerk's office on or before the day at which the writ is returnable; otherwise the bill may be taken pro confesso.
4190. Although the writ is not directed to the sheriff in the state courts, or the marshal when issuing from one of the courts of the United States, the writ must nevertheless be served by that officer or his deputy. The mode required by the rules of courts of the United States is by a delivery of a copy thereof by the officer serving the same to the defendant personally, or, in case of husband and wife, to the husband personally, or by leaving a copy thereof at the dwelling house or usual place of abode of each defendant, with some free white person, who is a member or resident in the family."
Whenever any subpæna shall be returned not executed as to any defendant, the plaintiff is entitled to another subpæna, toties quoties, against such defendant, if he shall require it, until the service is made.
4191. The service is ordinary and extraordinary.
The first or ordinary service takes place by serving the writ personally, or by leaving it at his dwelling house in the presence of a member of his family. When the service is not personal on the defendant, it must be made at the dwelling house of the defendant; and the service at a counting house or at a solicitor's office is not a good service unless the defendant is constantly in the habit of sleeping there.
The extraordinary service of a subpoena takes place when other means of serving the writ are resorted to. This kind of service must in general be warranted by a previous order of the court upon cause shown, though sometimes, when an extraordinary service has been effected, the court have considered it to be good; thus, where the officer who served the subpæna deposed that he bung
upon defendant's door, and within half an hour after he saw him abroad with a writ in his hand, which he supposed to be the subpæna, an attachment was awarded and the defendant committed for his non-appearance ;' and it has been held a good service, if a person keeps the door of his house shut and refuses to open it, to leave the writ hanging upon the door, or to put it into the house under the door, or within the windows. But none of these are good services unless it can be proved that the subpæna afterward came to the defendant's hands, or he was in the house at the time and had notice of it.
When an extraordinary service is necessary, it is, however, the safest course for the plaintiff to apply in the first instance to the court by motion, supported by an affidavit stating the circumstances, for an order that the particular mode of service required shall be a good service. Orders of this nature have been granted where infants have been secreted or kept out of the way, so that they could not be personally served. Where the defendant is a prisoner at large,
erally considered to adopt the principles of the court of chancery in England. Vattier v. Hinde, 7 Pet. 252.
* Rules of Courts of U. S., Courts of Equity, Rule 12; 2 Smith, Chanc. Pract. 487; 1 Daniell, Chanc. Pract. 557.
* Rule 13. 1 Daniell, Chanc. Pract. 563; 2 Maddock, Chanc. Pract. 200; 1 Smith, Chanc. Pract. 115.
5 Rule 14.
61 Smith, Chanc. Pract. 115; 1 Daniell, Chanc. Pract. 564; 2 Maddock, Chanc. Pract. 199.
? Rickers v. Stileman, 1 Car. Ch. 57. 8 How v. Maddock, Car. Ch. 104, 115. • Smith v. Marshall, 1 Atk. Ch. 70; Thomson v. Jones, 8 Ves. Ch. 141 ; Baker v. Holmes, 1 Dick. Ch. 18, 77; 1 Daniell, Chanc. Pract. 566. In some of the states, the subprena may be served by advertising in the public newspapers, when the parties cannot be found within the jurisdiction of the court. This may be done by virtue of statutory provisions.