the premises as the nature of this case may require, and to your hon. ors shall seem meet. [Add prayer for subpoena as in form set forth in section 832.] A. B., Complainant.

G. H.,

Solicitor for Complainant.22

22 This form is taken from 3 Daniell, Ch. Pl. & Pr. 2070, and Willis, Pleadings in Eq. 382.

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BILLS TO SUSPEND OR AVOID THE OPERATION OF DECREES.

§ 957. In general.

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. Thus, during the troubles after the death of Charles I., upon a decree of foreclosure for 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 engagements 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 the performance of the decree, on the ground of inevitable necessity preventing the mortgagor from complying with the strict terms of it, and also made a new decree, on the ground of matter subsequent to the former decree.1 These bills rest for their maintenance upon special circumstances. And it must be remembered that the embarrassments occasioned by the civil war in the reign of Charles I., and that the state of affairs before the restoration of Charles II., occasioned many extraordinary applications for relief, and perhaps induced the court to go far in extending relief. All the cases determined after the restoration, upon circumstances connected with the

1 Mitford, Eq. Pl. 94; Knight v. Bevis, 1 Ch. Cas. 61; Venables v. Foyle, 1 Ch. Cas. 2; Whorewood v. Whorewood, 1 Ch. Cas. 250; Wakelin v. Walthal, 2 Ch. Cas. 8. For form of such bill, see Willis, Pleadings in Eq. 388.

24 Minor, Inst. Com. & St. Law (2d Ed.) 1270 (1138).

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3

prior disturbed state of the country, ought to be considered with caution. It is said by Mr. Foster that no instance is known of the maintenance of such a bill in a federal court, but that in a few cases the federal courts have sustained bills to suspend the operation and enjoin the enforcement of judgments at law for matters subsequent. But it would seem that such bills are not unknown in this country. The operation of a decree has been sometimes suspended on special circumstances, or avoided by matter subsequent to the decree, upon a new bill for that purpose. Thus, where a decree was made within the Union lines, during the late Civil War, to foreclose a mortgage, it was held to be of no effect as to the mortgagor, if he had been forced to go, or had been, within the Confederate lines, and was prohibited from entering the Union lines; and, after the war, a bill was permitted to be filed to avoid the execution of the decree.5

3 Mitford, Eq. Pl. 94.

Foster, Fed. Pr. § 359, citing Johnson v. St. Louis, I. M. & S. Ry. Co., 141 U. S. 602; Parker v. Judges of Circuit Court of Maryland, 12 Wheat. (U. S.) 561.

4 Minor, Inst. Com. & Stat. Law (2d Ed.) 1270 (1138); Dean v. Nelson, 10 Wall. (U. S.) 158; Lasere v. Rochereau, 17 Wall. (IT. 8.) 437. (1014)

CHAPTER LIII.

BILLS TO CARRY DECREES INTO EXECUTION.

§ 958. In general.

Sometimes, from the neglect of parties, or other cause, it becomes impossible to carry a decree into execution without the further decree of the court. This happens generally in cases where parties have neglected to proceed upon the decree, and their rights under it become so embarrassed by a variety of subsequent events that it is necessary to have a decree of the Such a bill is sometimes court to settle and ascertain them. exhibited by a person who was not a party, or does not claim under a party, to the original decree, but who claims in a similar interest, or is unable to obtain the determination of his own rights till the decree is carried into execution. It may be brought by or against any person claiming as assignee of a party to the decree.1 It may be brought to carry into execution the judgment of an inferior court of equity, if the jurisdiction of that court is not equal to the purpose, as in the case of a decree in Wales, which the defendant had avoided by flying

1 Adams, Eq. 415; Story, Eq. Pl. § 429; Mitford, Eq. Pl. 95; Cooper, Eq. Pl. 98; 2 Barbour, Ch. Pr. 86; Root v. Woolworth, 150 U. S. 401; Wadhams v. Gay, 73 Ill. 415; Lancaster v. Snow, 184 Ill. 534, 56 N. E. 813; Oberein v. Wells, 163 Ill. 101, 45 N. E. 294; Johnson v. Northey, Finch, Prec. in Ch. 134, 2 Vern. 407; Shainwald v. Lewis, 69 Fed. 487; Binks v. Binks, 2 Bligh, 593; Rylands v. Latouche, 2 Bligh, 566; Oldham v. Eboral, 1 Coop. t. Brough. 27; Wright v. Bowden, 54 N. C. 15, 59 Am. Dec. 600; Griggs v. Detroit & M. Ry. Co., 10 Mich. 117; Helms v. Rizer, 98 Tenn. 414, 39 S. W. 718; Hogan v. Davis, 3 Ala. 70; Griffin v. Spence, 69 Ala. 393; Linton v. Fotts, 5 Blackf. (Ind.) 396; Organ v. Gardiner, 1 Ch. Cas. 231: Carteret v. Paschal, 3 P. Wms. 197.

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into England. Any person interested under a decree may bring a bill to carry it into execution. Any creditor, upon the same principle, may prosecute a decree for an account.3 A bill for this purpose is generally partly an original bill and partly a bill in the nature of an original bill, although not strictly original, and sometimes it is likewise a bill of revivor, or a supplemental bill, or both. The frame of the bill is varied accordingly.*

$959. Proceedings of court on such bill.

The court in these cases generally only enforces and does not vary the decree, but, upon circumstances, it has sometimes reconsidered the original directions, and varied them in case of mistake; and it has even, on circumstances, refused to enforce the decree, although, in other cases, the court and the house of lords, upon an appeal, seem to have considered that the law of the decree ought not to be examined on a bill to carry it into execution. On an original bill to carry a former decree into execution, the court may look into the original case, and see if the original decree is equitable and just, and, if it is not, refuse its enforcement. Thus, where a decree of partition,

2 Mitford, Eq. Pl. 96; Story, Eq. Pl. § 431; Morgan v. 408. See Galbraith v. Neville, 5 East, 475, note.

3 Story, Eq. Pl. § 837.

1 Atk.

42 Barbour, Ch. Pr. 88; Story, Eq. Pl. § 432; Mitford, Eq. Pl. 97; Pott v. Gallini, 1 Sim. & S. 206. See Lancaster v. Snow, 184 Ill. 534, 56 N. E. 813; 2 Barbour, Ch. Pr. 86.

5 Story, Eq. Pl. § 430; Cooper, Eq. Pl. 99; Attorney General v. Day, 1 Ves. Sr. 218; Johnson v. Northey, Finch, Prec. in Ch. 134, 2 Vern. 407; Smythe v. Clay, 1 Brown, Parl. Cas. 453; West v. Skip, 1 Ves. Sr. 239; Carneal v. Wilson, 3 Litt. (Ky.) 80. See Greenup v. Rennix. Hardin (Ky.) 603; Rogers v. Rogers, 15 B. Mon. (Ky.) 364; Tomlinson v. McKaig, 5 Gill (Md.) 256; Dunlap's Heirs v. McIlvoy, 3 Litt. (Ky.) 269.

6 Story, Eq. Pl. § 641; Wadhams v. Gay, 73 Ill. 415, citing Adams, Eq. 416, and 2 Daniell, Ch. Pl. & Pr. (4th Ed.) 1586; Lawrence v. Berney, 2 Ch. R. 127; O'Connell v. McNamara, 3 Dru. & War. 411; Bean v. Smith, 2 Mason, 252, Fed. Cas. No. 1,174; Hamilton v. Houghton, 2 Bligh, 169; Lancaster v. Snow, 184 Ill. 534, 56 N. E. 813. See, also, Cooper, Eq. Pl. 99; Mitford, Eq. Pl. 95, 96.