페이지 이미지
PDF
ePub

complainants should be decreed to be equitable owners of a part of an award and that the party claiming the whole and officers of the United States be enjoined from the receipt or payment of the amount thereof, to the detriment of the complainants' interests, under the prayer for general relief the court awarded a decree determining the amount to which the complainants were entitled and directing its payment by the defendant who claimed the whole. McGowan v. Parish, 237 U. S. 285. Where a bill prayed the recovery of securities deposited with the defendant under a syndicate agreement and it appeared that the securities had been exchanged for others, upon which the defendant claimed a lien, the court entered a decree for a delivery of the plaintiff's proportionate share of the new securities free from any lien. Kelly v. Illinois State Trust Co., C. C. A., 215 Fed. 567. Where a bill prayed a cancellation of certain deeds as a cloud upon the title to property mortgaged to the plaintiff who was not then entitled to the possession, the court upon granting this relief, it appearing that the mortgagee under the terms of the mortgage was then entitled to the possession, gave the same to it. Continental Trust Co. v. Tallassee Falls Mfg. Co., 222 Fed. 694. Where the bill prayed the enforcement of a mechanic's lien on the mortgaged premises, the complainant, under the prayer for general relief, was granted an order directing the owner of the equity of redemption and the mortgagee to sign a check to enable it to withdraw funds deposited as security for its

work. Turner Const. Co. v. Union Terminal Co., C. C. A., 248 Fed. 120. Where a cross-bill filed by the lessor in a suit to foreclose a mechanic's lien on a property leased, prayed for a foreclosure of the lessor's liens upon improvements and for general relief, the court granted a decree providing that on the les sor's payment of the liens therein declared to be superior to her rights, she should become absolute owner of the property and of the improvements. Mellon v. St. Louis Union Tr. Co., C. C. A., 240 Fed. 359. In a suit to enforce a lien for the price of stock deposited in eserow, the court may enter a decree for specific performance of the contract, although no lien exists. David v. M'Rae, 183 Fed. 812. Under a complaint for the rescission of a sale of land to a minor and for general relief, a Texan court decreed the foreclosure of a lien for the purchase-money. Morris v. Holland, 10 Tex. Civ. App. 474; s. c., 31 S. W. R. 690. Upon a bill to compel an agent to account for illicit profits, received by him from contractors with his employers, and to follow the same into securities of other property held for him by other defendants; it was held that, under the prayer for general relief, a decree could be entered as for money had and received for the complainant's use for any difference between the cost of the specific property recovered and the profits thus corrupt; ly obtained. U. S. v. Carter, 217 U. S. 286, 291, 54 L. ed. 769. In Michigan, a bill which alleged that the defendant had levied as sheriff was held to support an injunction against him in his official capacity

prayed may be granted. Where, however, a consolidated corporation filed a bill in equity to enjoin the enforcement of an ordinance reducing all its charges for the supply of gas, not praying in the alternative relief as regards the gas furnished by one of its constituents; it was held, that relief could not be granted so far as such constituent alone was concerned." Where

although the prayer for relief did not describe him as sheriff. Wight v. Roethlisberger, 116 Mich. 241; S. C., 74 N. Y. 474. Where the bill prayed merely a perpetual and not an interlocutory injunction. against the construction of a street railway, and the facts proved upon the final hearing showed that an injunction then would not be justified, the Supreme Court held that the bill was properly dismissed, although it contained a prayer for general relief and averments supported by the evidence which showed that the com plainant might be entitled to damages in the suit; since the averments were not introduced for that purpose and the complainant at the hearing disclaimed any desire for such relief. Osborne v. Missouri Pac. Ry. Co., 147 U. S. 248, 260, 37 L. ed. 155, 161. Where a bill by a mortgagee, who had bought the property at a foreclosure sale, prayed that the right of redemption of a defendant, who was not a party to the foreclosure suit, might be cut off because he was in privity with one of the defendants to the same and bound by the decree; it was held, that the court might order a general foreclosure and a resale of the property under the prayer for general relief. London & San Francisco Bank v. Dexter Horton & Co., C. C. A., 126 Fed. 593. In a suit for an accounting under a contract, à decree was made

directing an accounting, including the proceeds of property not coyered by the contract which had been wrongfully taken by the defendant. Stennick v. Jones, C. C. A., 225 Fed 345. In a suit to enjoin unfair competition and an infringement of trade mark, relief was granted as to a trade mark not described in the bill where it appeared in one of the exhibits and the defendant's answer denied its infringement. Gordon's Dry Gin Co. v. Eddy & Fisher Co., 246 Fed. 954. In a suit to enforce a trust in securities, under the prayer for general relief, the complainant was decreed the securities upon proof that she was the original owner thereof. Ambrosius v. Ambrosius, C. C. A., 239 Fed. 473. See Interstate Commerce Commission v. Southern Pac. Co., 132 Fed. 829; holding that the court could enforce an order by the plaintiff, upon different reasons than those assigned by the Commission for its conclusion, when the bill alleged generally that the rule of the company, set aside by the Commission, was in violation of the Interstate Commerce Act. But see authorities cited supra, §§ 136, 137. 6 Bay State Gas Co. v. Rogers, 147 Fed. 557, 574; A. B. Dick Co. v. Fuller, 198 Fed. 404.

7 People's Gas Light & Coke Co. v. Chicago, 194 U. S. 1, 16, 48 L. ed. 851, 856.

a bill prayed for a reformation of a policy; it was held, that a decree could not be granted reforming the policy in a different manner, not justified by the case made by the bill.8 Where the bill which charged fraud prayed, that a location be declared void, and also general relief, a decree was allowed declearing that the defendants hold the mine, as trustees ex malificio, for the complainant's benefit."

It seems that if there be no objection to the specific relief prayed for, the plaintiff cannot at the hearing abandon that and obtain a decree for different relief.10

It has been held in England, that, in some cases of fraud, where no other relief can be given against a party deeply involved in the fraud charged by the bill, the payment of the costs of the suit by him ought to form the subject of a specific prayer, and that otherwise his demurrer to the bill will be sustained. In a case where the bill contained allegations showing threatened injury to rights of property, not however mentioned as an independent ground of relief, while it was mainly occupied with complaints of a threatened invasion of rights of a political nature, as the specific prayers for relief were confined to the protection of the political rights, although the bill contained a prayer for general relief, the court refused to consider the allegations concerning the threatened injury to property.12

A bill may pray relief in the alternative, when it is said to have a double aspect.13 If a different state of facts, under which the complaint is entitled to relief, appears upon the hearing, the court may allow the case to stand over, and give the plaintiff leave to amend his bill in conformity with them, and then obtain relief.14 And if the complainant be an infant

8 Baldwin v. Liverpool & L. G. Ins. Co., C. C. A., 124 Fed. 206.

9 Lockhart v. Leeds, 195 U. S. 427, 49 L. ed. 263.

10 Allen V. Coffman, 1 Bibb (Ky.), 469; Pillow v. Pillow, 5 Yerg. (Tenn.) 420.

11 Le Texier v. The Margravine of Anspach, 15 Ves. 159, 164; Daniell's Ch. Pr. (2d Am. ed.) 441.

12 Georgia v. Stanton, 6 Wall. 50, 18 L. ed. 721.

13 Shields v. Barrow, 17 How. 130, 144, 15 L. ed. 158, 162; Kilgour v. New Orleans Gas-Light Co., 2 Woods, 144, 148; Gaines v. Chew, 2 How. 619, 643, 11 L. ed. 402, 411. See supra, § 138.

14 Beaumont v. Boultbee, 5 Ves. 485; Palk v. Lord Clinton, 12 Ves.

or the representative of a charity, it would formerly grant relief without regard to the allegations in the bill.15 "Where no account, payment, conveyance, or other direct relief is sought against a party to a suit, not being an infant, the party, upon service of the subpoena upon him, need not appear and answer the bill, unless the plaintiff specially requires him to do so by the prayer; but he may appear and answer at his option; and if he does not appear and answer he shall be bound by all the proceedings in the cause. If the plaintiff shall require him to appear and answer he shall be entitled to the costs of all the proceedings against him, unless the court shall otherwise direct.

16

§ 155. The signature to a bill. "Every bill or other pleading shall be signed individually by one or more solicitors of record, and such signature shall be considered as a certificate by each solicitor that he has read the pleading so signed by him; that upon the instructions laid before him regarding the case there is good ground for the same; that no scandalous matter is inserted in the pleading; and that it is not interposed for delay."1

Formerly, the requirement was that the bill should have the signature of counsel. This practice began, it is said, in the time of Sir Thomas More.3 Before that time it was the practice for a mastery in chancery to examine the bill and determine whether it was better to dismiss it originally or retain it by subpoena. A signature upon the back of the bill has been held to be sufficient.5 Under the former practice, the remedy

63; Daniell's Ch. Pr. (2d Am. ed.), 439, 440.

15 Stapilton v. Stapilton, 1 Atk. 2; Attorney-General v. Jeanes, 1 Atk. 355; Story's Eq. Pl., § 40, note.

16 Eq. Rule 40.

$155. 1 Eq. Rule 24. In England, it has been held: that the signature of the solicitor should be in manuscript and not lithographed (Regina v. Cowper, 24 Q. B. D. 533); but, in an earlier case, that his clerk might sign on his behalf

(France v. Dutton, 2 Q. B. 208); and that when the counsel had signed a draft, that was sufficient, and his name might be printed at the end of the pleading. "The Annual Practice 1913," p. 317.

2 Eq. Rule 24, of 1842.

31 Hargrave's Law Tracts, 302; Daniell's Ch. Pr. (2d Am. ed.) 357. 41 Hargrave's Law Tracts, 302; Daniell's Ch. Pr. (2d Am. ed.) 357. 5 Dwight v. Humphreys, 3 McLean, 104.

for a defect in this respect was by a motion to take the bill off the file, or by demurrer." The remedy would now probably be a motion to dismiss. The court could, of its own motion, order the bill taken off the file. If the defendant should answer without taking the objection, such a defect would probably be waived.10 Leave to amend by adding the signature was always granted. If the complainant sues in person, the signature of the solicitor might also be dispensed with.12 In such a case, the plaintiff himself should sign the bill.

§ 156. Affidavits to bills. The Equity Rules of November 4, 1912, contain but two provisions requiring an oath to a bill. A stockholders' bill must be verified by oath. In every case, "If special relief pending the suit be desired the bill should be verified by the oath of the plaintiff, or someone having knowledge of the facts upon which such relief is asked." Under the former practice, in such a case it was not necessary that the affidavit should be filed with the bill, nor before the notice of a motion for the interlocutory relief, and its omission did not make the bill demurrable. It has been held: that under the Equity Rules of 1912 where the bill prays for a preliminary injunction it must be verified regardless of whether the complainant moves for such relief; and that when verified by the complainant it must show that the affiant has knowledge of the facts alleged. It is doubtful whether, when an affidavit is required, one is sufficient which merely alleges that the bill is true to the best of the affiant's knowledge, information and belief.6

[blocks in formation]
« 이전계속 »