CHAPTER IX.

PROCEEDINGS BY DEFENDANT PREVIOUS TO PUTTING IN HIS

§ 183. Employing solicitor.

DEFENSE.

The first step usually taken by a defendant intending to defend the suit, if he is not himself a solicitor, is to employ a solicitor to appear for him. A special authority is not necessary to enable a solicitor to appear in the cause. He may do so under a general authority to act as solicitor for his client. A solicitor ought not to appear for a defendant without some authority.1 A defendant may appear in person, however, if he chooses.2

§ 184. Motion to take bill from files.

If the bill has been filed in the name of an imbecile, the defendant may move to strike it from the files. Such motion should be made before answer. It seems that a suit cannot be dismissed on account of imbecility arising subsequent to its insti tution.3

$ 185. Excepting to a bill for scandal and impertinence.

A defendant may except to a bill containing any scandalous or impertinent matter, and thus secure the expunging of such matter. According to the ordinary practice of the court, a bill cannot be referred for impertinence after the defendant has

11 Barbour, Ch. Pr. 100; Wright v. Castle, 3 Mer. 12. See, on subject of unauthorized appearances on behalf of defendant by solicitor, supra, § 172.

21 Barbour, Ch. Pr. 100.

81 Barbour, Ch. Pr. 100; 1 Hoffman, Ch. Pr. 211; Wartnaby v. Wartnaby, 1 Jac. 377. See, also, supra, § 119, for unauthorized filing of bill. 41 Hoffman, Ch. Pr. 195-199; 1 Barbour, Ch. Pr. 101.

answered or has submitted to answer. It may be referred for scandal at any time, and even, by leave of the court, upon the application of a stranger to the suit. The practice on exceptions to bills for scandal and impertinence is in most jurisdictions substantially the same as that upon exceptions to answers, and the reader is referred to that part of this work where exceptions to answers are considered.8

$186. Form of exceptions to a bill for scandal or impertinence. [Title of court and cause.]

Exceptions taken by R. R., defendant, to the bill of complaint of J. D., complainant, filed against him:

First. For that the allegation in the third line of the third page of the said bill, in the words following, to-wit [specify objectionable matter], is impertinent, and ought to be expunged.

Second. For that the allegations in the said bill, commencing, in the sixth line of the third page thereof, with the words following, to-wit [specify objectionable matter], are scandalous and impertinent, and should be expunged.

In all of which particulars this defendant humbly insists that the complainant's said bill of complaint is irrelevant, impertinent, and scandalous; wherefore the said defendant does except thereto, and humbly prays that the impertinence and scandal of the said bill of complaint excepted to as aforesaid may be expunged, with costs.

J. K.,

Solicitor for Defendant.

§ 187. Motion to produce papers.

R. R.,

Defendant.

The question of the right of the defendant to apply to the court to have the complainant produce certain documents for his

Story, Eq. Pl. § 270; Cooper, Eq. Pl. 19.

Story, Eq. Pl. § 270.

Story, Eq. Pl. § 270; Coffin v. Cooper, 6 Ves. 514; Williams v. Douglas, 5 Beav. 82. That a stranger cannot refer a bill for scandal, see Anonymous, 4 Madd. 252. For practice concerning referring bills for scandal, see Woodward v. Astley, Bunb. 304; Wallis v. Atkinson, Fowler, Exch. Pr. 449; Ferrar v. Ferrar, 1 Dickens, 173; Wagstaff v. Bryan, 1 Russ. & M. 28; David v. Williams, 1 Sim. 17; Portsmouth v. Fellows, 5 Madd. 450; Robertson v. Graham, 3 Dow, 274.

8 See post, § 333 et seq.

inspection is involved in much confusion, and is largely regulated by statute or rule of court. It is said that the court will, under special circumstances, order that the complainant should not compel the defendant to answer until within a given time after the production of certain documents set forth in the bill, when it appears that their production is essential to enable the defendant to put in his answer.10 It would seem to be the better

Ryder v. Bateman, 93 Fed. 31; 15 & 16 Vict. c. 18, § 20; Boyd v. United States, 116 U. S. 616. See, for production of documents, Dickinson, Eq. Pr. 151, 218; 2 Daniell, Ch. Pl. & Pr. (6th Ed.) 1817 et seq.; l'ollock, Prod. Documents. See post, § 370.

*

10 1 Barbour, Ch. Pr. 101. Mr. Barbour cites, in support of this statement, Princess of Wales v. Earl of Liverpool, 1 Swanst. 114, 1 Wils. Ch. 113, 2 Wils. Ch. 29, where it was held that the proper order was not one to produce the document for inspection, but to enlarge the time of the Jefendant for answering the bill until such time as the complainant should deposit the document with the clerk of the court for the inspection of the defendant, and an order to such effect was entered. Jones v. Lewis, 2 Sim. & S. 242, is also cited by the author in support of the last-mentioned proposition. But the order entered in the last-named case was discharged by Lord Eldon, as appears by the following memorandum in the original edition of 4 Sim. 324, which is generally left out of the reprints and decisions of the English Chancery Reports. Such memorandum is as follows: "The order made by Sir J. Leach, vice-chancellor, in Jones v. Lewis, reported in 2 Sim. & S. 242, was discharged by Lord Eldon, • without costs." This has generally been regarded as an indirect overruling of the Case of the Princess of Wales, and has been so treated by most of the judges who have subsequently considered the question. But some of them have adhered to the Princess of Wales Case, strictly limiting it, however, to the peculiar circumstances of that case, the most important of which was that in that case and in Jones v. Lewis the person whose signature was said to be forged was dead, wherefore there was more reason or justice in departing from the ordinary rule, and allowing the executors an inspection of the document in order to determine whether or not there had been a forgery committed. Ryder v. Bateman, 93 Fed. 31. For English cases refusing to follow the Princess of Wales v. Earl of Liverpool, see Penfold v. Nunn, 5 Sim. 409; Milligan v. Mitchell, 6 Sim. 186; Brown v. Newall, 2 Mylne & C. 558; Jackson v. Sedgwick, 2 Wils. Ch. 167; Taylor v. Heming, 4 Beav. 235; Bate v. Bate, 7 Beav. 528, where Lord Langdale explains the distinction between his rulings. For other English cases where such a motion by defendant has been denied, see Pickering v. Rigby, 18 Ves. 484; Wiley v. Pistor, 7 Ves. 411; Micklethwait v. Moore, 3 Mer. 292; 2 Dickens, 778;

V.

doctrine that, as a general rule, the defendant is not entitled by motion to call upon the complainant for the production of his books or other documentary evidence in his possession before answer, to enable such defendant to make his defense.11 The rule, however, is different as to partnership books and papers.12

§ 188. Security for costs.

In most jurisdictions it is provided by statute or rule of court that in certain cases the defendant may, after his appearance has been entered, compel the complainant to give security for the costs before he can be allowed to proceed any further with the suit.13

Burton v. Neville, 2 Cox, 242; Maund v. Allies, 4 Mylne & C. 503; Spragg v. Corner, 2 Cox, 109. See Wedderburn v. Wedderburn, 2 Beav. 212; Shepherd v. Morris, 1 Beav. 175, 4 Beav. 252; Atkins v. Wright, 14 Ves. 211; Davers v. Davers, 2 P. Wms. 410; Attorney General v. Brooksbank, 1 Younge & J. 439; Elder v. Carter, 25 Q. B. Div. 194; Boyd v. Petrie, L. R. 5 Eq. 290.

Denning v. Smith, 3 Johns. (N. Y.) 549.

11 Kelly v. Eckford, 5 Paige (N. Y.) 548, where Chancellor Walworth characterizes Princess of Wales v. Earl of Liverpool, 1 Swanst. 114, as "a political decision"; Ryder v. Bateman, 93 Fed. 31. See Evans v. Staples, 42 N. J. Eq. 584, 8 Atl. 528; Lupton v. Johnson, 2 Johns. Ch. (N. Y.) 429; Denning v. Smith, 3 Johns. Ch. (N. Y.) 409; Commercial Bank of Buffalo v. Bank of State of New York, 4 Hill (N. Y.) 516. Where a bill is filed by an executor for the settlement of his accounts, and for disclosures as to distribution, etc., the defendants are not entitled, on petition, to an inspection of the accounts and vouchers of the executor to enable them to answer the bill. Ch. (N. Y.) 409; Kelly v. Eckford, 5 Paige 12 Kelly v. Eckford, 5 Paige (N. Y.) 549. 18 Ves. 484, and Maund v. Allies, 4 Mylne & C. 503, the production of partnership papers were denied. court, upon motion by the defendant, in a bill for partnership account, direct the production of accounts before answer. But it seems that after answer, if he swears to his belief that the books are in the possession of the complainant, and that he (the defendant) cannot answer fully without them, the court will restrain all proceedings, for want of a sufficient answer, until he has been assisted with the inspection." 1 Barbour, Ch. Pr. 101; Spragg v. Corner, 2 Cox, 109.

But see Pickering v. Rigby, where motions for "Neither will the

131 Barbour, Ch. Pr. 102-104; 1 Hoffman, Ch. Pr. 200-208. For Illinois statute on subject of security for costs, see Rev. St. Ill. c. 33. See Chicago & I. R. Co. v. Lane, 130 Ill. 116, 22 N. E. 513; Ripley v. Morris, 7

§ 189. Application to defend as pauper.

In England, by virtue of the orders of the court, defendants might be admitted to defend as paupers.14 It was said in New York, when the chancery practice there obtained, that it was at least doubtful whether a defendant was entitled to defend

as a pauper in any case.15

Ill. 381; Roberts v. Fahs, 32 Ill. 474; Farnsworth v. Agnew, 27 II. 42; Wood v. Goss, 24 Ill. 626; Casey v. Horton, 36 Ill. 234; Kingsbury v. Buckner, 134 U. S. 650. For English practice, see Migliorucci v. Migliorucci, 1 Dickens, 147; Meliorucchy v. Meliorucchy, 2 Ves. Sr. 24; Gordon v. Plunket, 1 Ball & B. 567, note; Prior v. White, 2 Moll. 361; Green v. Charnock, 3 Brown, Ch. 371; White v. Greathead, 15 Ves. 2; Hoby v. Hitchcock, 5 Ves. 699; Willis v. Garbutt, 1 Younge & J. 511; Colebrook v. Jones, 1 Dickens, 154; Stanley v. Hume, 1 Hogan, 12; Lillie v. Lillie, 2 Mylne & K. 404; Camac v. Grant, 1 Sim. 348; Walker v. Easterby, 6 Ves. 612; Weeks v. Cole, 14 Ves. 518; Mason v. Gardiner, 4 Brown, Ch. 436; Dyott v. Dyott, 1 Madd. 187; Thornton v. Wilson, 1 Hogan, 20; Annesley v. Simeon, 4 Madd. 390; Bishop of Rochester v. Knapp, 1 Dickens, 70; Cliffe v. Wilkinson, 4 Sim. 123.

141 Hoffman, Ch. Pr. 212; 1 Harrison, Ch. Pr. 488; 1 Fowler, Exch. Pr. 483; Beames, Order Ch. 44, 216; Denn v. Russel, 1 Dickens, 427.

15 1 Hoffman, Ch. Pr. 212; Brown v. Story, 1 Paige (N. Y.) 588. The statutes and rules of court of the respective jurisdictions should be consulted on this question.

(228),