Modern Pleading and Practice in Equity in the Federal and State Courts of the United States: With Particular Reference to the Federal Practice, Including Numerous Forms and Precedents, Volume 1

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W. H. Anderson and Company, 1894 - Equity pleading and procedure - 1404 pages
 

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Contents

201
lxxxiii
660
lxxxv
662
lxxxvi
758
lxxxvii
203
xc
205
xcii
206
ciii
207
cviii
Jurisdiction beyond the State
cix
208
cxii
209
cxiii
Bill and special prayer for injunction
cxv
663
cxvi
Motion notice and affidavits
cxxx
Injunction bonds Generally
cxliv
subject continued Want of equity
clix
Dissolution for laches
clxix
The same subject continued Where there are several
clxxvi
INTRODUCTORY GENERAL SURVEY Page 1 Chancery practice in England
1
Sources of federal practice in the United States
2
Construction of Equity Rule 90
3
Code practice in the United States
4
Federal practice in respect of cases involving legal and equi
5
table claims
6
Enforcement of new rights created by local law
7
Enforcement of State rules of property
8
Effect of local laws further considered
9
Practice in proceedings between States
10
Equity practice in New Jersey
11
CHAPTER II
13
General limitation of equitable jurisdiction
14
Objection of adequate remedy at law
15
Page
16
The same subject continued
17
Federal jurisdiction exempt from State control
18
Judges chambers
19
Jurisdictional amount inherent in the court of chancery
20
Jurisdictional amount by statute
21
The same subject continued
23
Original jurisdiction of the United States Supreme Court
24
Appellate jurisdiction of the United States Supreme Court
26
The same subject continued Review of decisions of State courts
28
Jurisdiction of the United States circuit court of appeals
30
Suits arising under the constitution or laws of the United States
32
The same subject continued 84
34
Equitable jurisdiction of the United States district courts
35
Jurisdiction as dependent upon citizenship
37
The same subject continued 89
39
Change of citizenship
40
Citizenship of corporations
41
Objections on the ground of citizenship
42
Ancillary jurisdiction of the federal courts
43
The same subject continued Supplemental and crossbills
45
Residence of corporations
47
The same subject continued Waiver of objections
49
CHAPTER III
51
Suits by aliens
52
Suits against an alien enemy
53
Suits against a sovereign
54
Suits on behalf of infants
55
The same subject continued Functions of the next friend
56
Infants rights upon attaining majority
58
Suits against infants
59
The same subject continued Guardian ad litem
60
Suits on behalf of idiots lunatics and persons of weak mind
62
Suits against idiots lunatics and persons of weak mind
63
Husband and wife as parties
64
The same subject continued 6
66
Reference of the whole case 674 Propriety of a preliminary decree 675 Reference of a plea
67
Suits by and against executors and administrators
68
General rule on the subject of parties 69 54 General rule on the subject of parties 55 Summary statement of the rule in the federal courts
70
Formal parties and parties without interest
71
Interested but not indispensable parties
72
Omission of parties not within the jurisdiction
73
Necessary parties illustrated
74
Improper parties illustrated
76
Joinder of officers of corporations as defendants
77
When personal representatives may be omitted
78
Suits on behalf of numerous parties
79
The same subject continued
80
Suits by members of voluntary associations
81
Joinder of complainants in cases of fraud
83
The same subject continued
84
Suits affecting rights of residuary legatees
85
Parties in cases of trusts
86
Parties to bills for specific performance
89
Suits to set aside fraudulent conveyances
90
Parties in bills for foreclosure
92
The same subject continued Parties defendant
94
The same subject continued Adverse claimants
96
Complainants in bills to redeem
97
Defendants in bills to redeem
98
Objection for want of necessary parties
99
Objection for misjoinder of complainants
101
Objection for misjoinder of defendants
102
CHAPTER IV
104
Informations
105
Definition and classification of bills
106
Authority to file a bill
107
Signature to a bill
109
Affidavit to the bill
110
The same subject continued
111
The several parts of a bill
112
The address and introduction
113
The stating part
114
The interrogating part
115
Prayer for general relief
116
The same subject continued
117
Prayer for special relief
118
The prayer for process
119
General principles of equity pleading
120
The same subject continued
121
The same subject continued Illustrations
123
The same subject further illustrated
125
Relief secundum allegata et probata
126
The same subject continued
127
Jurisdictional averments
128
The same subject continued
129
Jurisdictional averments in the federal courts
130
The same subject continued
131
Allegations of parties interests 182
132
Allegations in excuse for laches
133
The same subject continued
134
Scandal and impertinence
136
The same subject continued
137
Objections for scandal and impertinence
138
The same subject continued
139
Inconsistent allegations
140
Bills with a double aspect
141
Multifariousness generally
142
The same subject continued
144
Multifariousness in matter Bills held multifarious
145
The same subject continued Bills held not multifarious
146
Multifariousness by misjoinder of complainants
148
The same subject continued Illustrations
149
Multifariousness by misjoinder of defendants
150
The same subject continued Bills held multifarious
151
The same subject continued Bills not multifarious
153
Multifariousness of bills by and against otficers and stock holders
154
Two or more good grounds of suit required
155
Objections for multifariousness how taken
156
Objection by whom taken
157
Summary statement of the doctrine of multifariousness
158
Bills of discovery
159
The same subject continued
160
Bills for foreclosure
161
The same subject continued
162
Bills to redeem
164
Bills to quiet title
165
Bills to reform instruments
167
The same subject continued
168
Bills to set aside fraudulent conveyances
169
Who may serve a subpoena
170
Creditors bills
171
The same subject continued
172
The same subject continued Complainants interest
173
Service upon corporations
174
Requisites of a bill of interpleader Disclaimer of interest
175
Affidavit of no collusion in interpleader
176
Offer to bring the fund into court in interpleader
177
The same subject continued
178
Description of defendants claims in bills of interpleader
179
Bills in the nature of interpleader
180
Bills to perpetuate testimony
181
Bills of certiorari
182
629 Application for continuance 626
183
How amendments are made
184
Amendments confined to what matters
185
No personal decree on service by publication
186
Amendments after demurrer sustained
187
Amendments after replication
188
Amendments after masters report
189
Amendments after publication
190
Amendments at the hearing
191
Amendments to meet the case proved
192
Amendments changing the ground of action
193
Amendments constituting a departure illustrated
194
When proof of the bill is necessary
195
Amendments not making a new case illustrated
196
Decrees pro confesso against infants
197
Miscellaneous matters relating to amendments
198
Rights of the defendant after decree pro confesso
199
Decree pro confesso as an estoppel
200
The same subject continued
201
Opening decrees pro confesso The general rule
202
Who may apply to open decrees pro confesso
203
Grounds for opening decrees pro confesso
204
The same subject continued
205
Mandate on reversal in patent cases 963
215
The same subject continued 964
217
Page
224
Evidence before a master 690 Examination of witnesses 691 Proceedings before a master
229
The same subject continued
230
Accounting before the master
239
Construction of decrees 810
240
Requisites of the application to open a decree pro confesso
244
Terms upon which decrees pro confesso are opened
245
Opening decrees on account of defective process
246
Practice in taking bills pro confesso in the federal courts
247
The same subject continued
249
CHAPEER VIL APPEARANCE Page 211 Definition of appearance
252
Who may appear in a cause
253
Appearance gratis
254
When an appearance must be made
255
Effect of appearance by guardian ad litem
256
General and special appearance
257
Extending time for appearance
258
Mode of entering special appearance
259
The same subject continued
261
231
262
Definition of a demurrer
263
Speaking demurrers 264 226 Speaking demurrers 227 Demurrers to answers
265
Admissions by a demurrer
266
The same subject continued Construction of written in struments
267
Admissions available for what purpose
268
When a defendant should demur
269
233
270
234
271
235
272
237
273
238
274
239
275
240
276
242
277
243
278
Incorporating demurrer in answer
279
General demurrer Specification of grounds Statutes and rules of court
280
The same subject continued
281
Demurrers bad in part
282
Demurrer for want of jurisdiction
283
The same subject continued
284
Demurrer for incapacity to sue
285
The same subject continued
286
The same subject continued Effect of sustaining demurrer
287
Formal requisites of demurrer for want of parties
288
Deinurrer for defect of parties
289
Statute of limitations as a ground of demurrer
290
Demurrer for laches
291
The same subject continued
292
The statute of frauds as a ground of demurrer
293
Demurrer for multifariousness
294
Demurrers to amended bills
295
Overruling a demurrer upon appeal
305
Sustaining a demurrer Leave to amend
306
Plea of the statute of limitations
307
DISCLAIMERS Page 281 Nature of a disclaimer
308
Strict rules of pleading applied to disclaimers
309
Answer accompanying disclaimer
310
Pleas of release denying fraud
311
Pleas of stated account
312
The same subject continued 314 Plea of bona fide purchase 315 Plea of usury 316 Frame of a plea 317 The same subject continued
315
General rules of pleading 319 The same subject continued
318
Costs of receivership 756
319
Amendment of pleas
320
The same subject continued
321
Verification of pleas
322
The same subject continued
323
Proceedings when a plea is filed
324
Setting a plea down for argument
325
Argument of a plea
326
Allowing a plea on argument
327
Overruling a plea on argument
328
Allowing a plea at the hearing
329
Overruling a plea as false
330
The same subject continued Discretion of the court 789
331
Effect of dismissal without prejudice 636
332
Page 315
335
317
338
319
340
321
341
322
343
324
345
325
346
327
348
328
349
329
350
330
351
333
353
Draft report and objections thereto 696 Masters report on accounts 697 Report of testimony 698 Amendment of report 699 Confirmation of report 7...
354
Defenses properly taken by answer illustrated
356
334
357
Defenses improper for an answer
358
FEIGNED ISSUES Page
359
335
360
336
362
337
363
338
364
339
365
340
366
341
367
Answer in patent cases
368
343
370
345
371
346
372
348
373
349
374
Answer by a married woman
375
Answer by a corporation 876
376
Joinder of several defenses 877
377
Frame of answer
378
Status of answer upon removal to federal court
379
Signature to answer
380
Answer under oath Waiver of oath
381
Before whom answer to be sworn
383
Mode of administering oath
384
Jurat
385
The same subject continued Defendants signature
386
Filing an answer Further time
387
Answer after expiration of time
388
Taking answers off the file
389
The same subject continued 891
391
General statement of the rule
392
Hearing upon bill answer and replication 893
393
Hearing on bill and answer 894
394
What constitutes a responsive answer
395
The same subject continued
396
Responsive answers illustrated
399
The same subject continued
400
Answer refuting itself Contradiction of deeds
401
Answer overcome by circumstances alone
402
Answer alleging facts upon hearsay
403
Answer on information and belief
404
Answer alleging ignorance of the facts
405
Falsus in uno falsus in omnibus
406
The same subject continued
407
Answer of one defendant when available by a codefendant
408
Effect of failure to answer fully 109
409
Admissions in answer
410
Summary statement of the prevailing rule
411
Answer of infants
413
Enrolment of decrees Correction of clerical errors 827
414
The same subject coutinued
415
The same subject illustrated
416
Application to amend
417
At what time amendments may be allowed
418
The same subject continued
419
Amending answer upon amendment of bill
420
Amendment setting up usury and limitation
421
Amendments at the hearing
422
Amendments to meet views of the court
423
Supplemental answers
424
d EXCEPTIONS TO ANSWERS 406 Definition and object of exceptions
425
What constitutes scandal
426
What constitutes impertinence
427
The same subject continued
428
Impertinence illustrated
429
What is not impertinent
430
The same subject continued
431
Exceptions for insufficiency
435
Exceptions to answer to amended bill
436
487
437
Provisions for attorneys fees Federal and State practice 991
438
The same subject continued
439
Further answers
440
Form of exceptions
441
CHAPTER XII
443
Where relief sought is available by answer
444
Jurisdiction of crossbills
445
Equitable relief on crossbills
446
Definition of decrees
447
The same subject continued Federal practice in removed cases
448
Account and specific performance on an answer
449
Who may file a crossbill
450
Crossbills by direction of the court
451
Relation of cross and original bill as to subject matter
452
Departure from the orig subjectmatter
453
850
454
When germane to the original subject matter
455
Parties to crossbills
456
351
457
Time for filing a crossbill
458
The same subject continued
459
Evidence on bill and crossbill
460
The same subject continued
461
Frame of a crossbill
462
The same subject continued
463
Process upon crossbill
464
Original and crossbill as one cause
465
Effect of dismissal of the original bill
466
Miscellaneous irregularities and waiver
467
DISMISSAL OF BILLS OTHERWISE THAN AT A HEARING Page 449 Motion to dismiss unauthorized suit
468
Right of complainant to dismiss a Exceptions
469
b Exceptions illustrated
470
c Proceedings upon a reference as affecting complainants right
471
d The rule in Illinois
472
Proper time for applying for issues 652
473
e The same subject continued Construction of statute
474
8 Dismissal by one of several complainants
475
i Dismissal contrary to stipulation
476
k Dismissal how effected
477
m Dismissal without costs
478
n Dismissal without prejudice
479
Certifying the verdict 655
481
The same subject continued Reinstatement
482
Dismissal for want of jurisdiction
483
Compelling complainant to elect
485
The same subject continued
486
CHAPTER XIV
488
Disuse of special replications
489
Replication to an answer
490
Waiver of a replication
491
Time for filing a replication
492
Amendments and replications nunc pro tunc
493
Frame of a replication
494
ABATEMENT REVIVOR AND SUPPLEMENT Page 481 Abatement of a suit
496
Effect of an abatement
498
Method of revivor
499
Title to revive
500
Revivor by the defendant or his representative
501
Frame of a bill of revivor
502
Subpona upon a bill of revivor
503
Pleadings and proceedings upon a bill of revivor
504
What renders a suit defective
506
General nature of supplemental bills
507
Petition instead of supplemental bill
508
Supplemental bill not a substitute for amendments
509
Use of supplemental bills illustrated
510
The same subject continued
511
Making a new case by supplemental bill
512
The same subject continued
513
Supplemental bills inconsistent with original
514
Title of complainant in a supplemental bill 515 499 Title of complainant in a supplemental bill 500 Leave to file a supplemental bill
515
Application for leave
516
Discretion of the court not reviewable
517
Frame of a supplemental bill
518
Parties to a supplemental bill 619
519
Proceedings on supplemental bills Demurrers and pleas
520
The same subject continued Answer
521
Original bills in the nature of supplemental bills
522
The same subject continued Frame of the bill
523
The same subject continued Frame of bill Proceedings
525
CHAPTER XVI
527
Judicial notice
529
Judicial notice in the federal courts
530
Method of taking testimony Federal rules
531
Time for taking testimony in federal courts 632
532
The same subject continued
534
Production of documents by the plaintiff
536
The same subject continued
537
Inspection of documents on subpoena duces tecum
538
Inspection before trial
539
Interlocutory order involving inspection
540
Stipulations relating to evidence
541
The same subject continued
543
The same subject continued
545
Commissions to take testimony
546
Depositions de bene esse under acts of congress
547
The same subject continued
548
Objections to competency of witnesses
549
Return of depositions
550
Right of a party to suppress depositions
551
Reexamination of witnesses
552
The same subject continued
553
The same subject continued Illustrations 655
555
Proof at the hearing
557
The same subject continued 658
558
MISCELLANEOUS PROCEEDINGS Page
560
Interlocutory applications
561
Motion by a party in contempt
562
Motions of course
563
Special motions ex parte
565
Form and notice of motions
566
The same subject continued Form of notice
568
Renewal of motions
569
Definition and nature of petitions
570
Use of petitions illustrated
571
Verification of a petition
572
Notice of petitions
573
Petitions of intervention General right to intervene
574
Intervention by strangers
576
The same subject continued
577
Intervention by beneficiaries
578
Intervention on a creditors bill 679
579
The same subject continued
580
Requisites of a petition to intervene
581
When an intervention becomes effective
584
b In West Virginia Georgia and Indiana
585
c In Wisconsin
586
d In New Jersey and Alabama
587
Stipulations relating to causes when enforced
590
861
593
696
595
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Page 29 - States, and the decision is in favor of such their validity, or where any title, right, privilege, or immunity is claimed under the constitution or any treaty or statute of, or commission held or authority exercised under, the United States, and the decision is against the title, right, privilege, or exemption specially set up or claimed by either party, under such constitution, treaty, statute, commission, or authority...
Page 28 - That a final judgment or decree in any suit, in the highest court of law or equity of a State in which a decision in the suit could be had, where is drawn in question the validity of a treaty or statute of, or an authority exercised under the United States, and the decision is against their validity...
Page 369 - Fourth. That he was not the original and first inventor or discoverer of any material and substantial part of the thing patented; or, Fifth.
Page 42 - ... does not really and substantially .involve a dispute or controversy properly within the jurisdiction of said circuit court, or that the parties to said suit have been improperly or collusively made or joined, either as plaintiffs or defendants, for the purpose of creating a case cognizable or removable under this act, the said circuit court shall proceed no further therein, but shall dismiss the suit or remand it to the court from which it was removed...
Page 27 - And excepting also that in any such case as is hereinbefore made final in the circuit court of appeals it shall be competent for the Supreme Court to require, by certiorari or otherwise, any such case to be certified to the Supreme Court for its review and determination with the same power and authority in the case as if it had been carried by appeal or writ of error to the Supreme Court.
Page 325 - Court or removed from a state court to a Circuit Court of the United States, it shall appear to the satisfaction of said Circuit Court...
Page 224 - Process from the tribunals of one state cannot run into another state, and summon parties there domiciled to leave its territory and respond to proceedings against them. Publication of process or notice within the state where the tribunal sits cannot create any greater obligation upon the non-resident to appear. Process sent to him out of the state, and process published within it, are equally unavailing in proceedings to establish his personal liability.
Page 528 - Provided, That in actions by or against executors, administrators, or guardians, in which judgment may be rendered for or against them, neither party shall be allowed to testify against the other, as to any transaction with, or statement by, the Opinion of the Court. testator, intestate, or ward, unless called to testify thereto by the opposite party, or required to testify thereto by the court.
Page 133 - The party who makes such an appeal should set forth In his bill specifically what were the impediments to an earlier prosecution of his claim; how he came to be so long Ignorant of his rights, and the means used by the respondent to fraudulently keep him In ignorance; and how and when he first came to a knowledge of the matters alleged In his bill; otherwise, the chancellor may Justly refuse to consider his case on his own showing, without inquiring whether there Is a demurrer or formal plea of the...
Page 369 - That he had surreptitiously or unjustly obtained the patent for that which was in fact invented by another, who was using reasonable diligence in adapting and perfecting the same; or, Third.

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