CHAPTER V.

BILLS AND INFORMATIONS IN EQUITY.

§ 64. In general.

A private party commences his suit by preferring to the court having jurisdiction a written statement of his case, which is called a "bill in chancery," or a "bill in equity," which is in the nature of a petition to the court, and states therein the material facts, and concludes with a prayer for the appropriate relief, or other thing required of the court, and for the usual process against the parties against whom the relief or other thing is sought.1 In the absence of statutory enactment, the practice in the courts of chancery is to commence the suit in all cases by filing the bill of complaint of the complainant, which concludes by praying for the appropriate process, which is then issued accordingly.2 This is still the practice in many jurisdictions, including the federal courts. Except in some early instances, bills have always been in the English language, and a suit preferred in this manner in the court of chancery was, therefore, commonly termed in England a "suit by English bill," by way of distinction from proceedings in suits within the ordinary jurisdiction of the court, which, as also in the other courts of common law, were anciently in the French or Norman tongue, and afterwards in the Latin.*

When the suit is instituted on behalf of the government, or of those who partake of its prerogative, such as idiots and luna

1 Story, Eq. Pl. § 7; Mitford, Eq. Pl. 7.

24 Minor, Inst. Com. & St. Law (2d Ed.) 1232 (1116); Cooper, Eq. Pl. 17; Mitford, Eq. Pl. 6, 46.

3 4 Minor, Inst. Com. & St. Law (2d Ed.) 1232 (1116); United States Equity Rule 11.

4 Story, Eq. Pl. § 7; Mitford, Eq. Pl. 8; 4 Minor, Inst. Com. & St. Law (2d Ed.) 1237 (1121).

tics, or whose rights are under its particular protection, such as the objects of a public charity, the matter of complaint is offered to the court by way of information given by the proper officer of the government, as by the attorney general or solicitor general, and not by way of petition. When the suit immediately concerns the rights of the government alone, these officers proceed purely by way of information. When the suit does not immediately concern the rights of the government, its officers depend on the relation of some person, whose name is inserted in the information, and who is termed the "relator," and who is considered as answerable to the court and to the parties for the propriety of the suit and its conduct, and may be made responsible for costs, if the suit should appear to have been improperly instituted or conducted. If the relator has a personal ground of complaint, it is incorporated with the information, and they form together an information and bill." A relator is not indispensable. The attorney general may proceed in the suit without one. It is said that in informations one.7 on behalf of idiots and lunatics a responsible relator is necestary. Informations differ from bills little more than in form and name, and therefore the same rules are, in general, applicable to both. An exception exists with reference to informaticns respecting charities, with relation to which the court will not require the same strictness, either as to parties or as to pleadings, as is ordinarily required in bills.10 A pleading

Mitford, Eq. Pl. 7, 21-23; Story, Eq. Pl. § 8; Cooper, Eq. Pl. 101107; Adams, Eq. (8th Ed. by Ralston) 538; Attorney General v. Moliter, 26 Mich. 444.

Adams, Eq. (8th Ed. by Ralston) 539; Mitford, Eq. Pl. 23, 100; Cooper, Eq. Pl. 107; Attorney General v. Parker, 126 Mass. 221; Attorney General v. Central R. Co. (N. J. Eq.) 48 Atl. 347; Newark Plank Road & Ferry Co. v. Elmer, 9 N. J. Eq. 755.

1 Story, Eq. Pl. § 8; Mitford, Eq. Pl. 22, note (d).

Attorney General v. Tyler, 2 Eden, 230, 1 Dickens, 378; Gorham v. Gorham, 3 Barb. Ch. (N. Y.) 33; 1 Daniell, Ch. Pl. & Pr. (4th Ed.) 14. Story, Eq. Pl. § 8; Mitford, Eq. Pl. 21-24, 100; Cooper, Eq. Pl. 101

107.

10 Story, Eq. Pl. § 8.

filed as an information, though having many of the features of a bill, cannot be sustained as a bill when dismissed as an information. The attorney general, failing by his information to make out a case on behalf of the public, cannot bring the relator forward as complainant at the hearing, as there can be no bill of complaint without a complainant.11, The peculiarities of informations are too few to justify any distinct examination, and they will therefore be considered under the general head of bills.12

§ 65. Division of bills in equity.

The most general division of bills is into those which are original and those which are not original.13 Original bills are

11 Attorney General v. Evart Booming Co., 34 Mich. 462.

12 For cases considering informations, see Attorney General v. Paterson & H. R. Co., 9 N. J. Eq. 527; State v. Lord, 28 Or. 529, 43 Pac. 474; Attorney General v. City of Dublin, 1 Bligh (N. S.) 312; Attorney General v. Eastlake, 45 Eng. Ch. 218; State v. Dayton & S. E. R. Co., 36 Ohio St. 434.

13 In Story, Eq. Pl. § 16, after making the above division of bills, it is said: "There is another class of bills which is of a mixed nature, and sometimes partakes of the character of both of the others. Thus, for example, bills brought for the purpose of cross-litigation, or of controverting or suspending or reversing some decree or order of the court or of obtaining the benefit of a former decree, or of carrying it into execution, are not considered as strictly a continuance of the former bill, but in the nature of original bills. And if these bills require new facts to be stated, or new parties to be brought before the court, they are so far strictly of the nature of supplemental bills. For all the objects of the present work, this last class may be treated as included in that of bills not original." Some authorities divide the several kinds of bills into (1) original bills; (2) bills not original; and (3) bills in the nature of original bills, though occasioned by former bills. Mitford, Eq. Pl. 33; 4 Minor, Inst. Com. & St. Law (2d Ed.) 1243 (1126). Those making the three classifications include, under the head of bills not original, (1) supplemental bills, (2) bills of revivor, and (3) bills of revivor and supplement; and under the head of bills in the nature of original bills, (1) a cross bill, (2) a bill of review, (3) a bill in the nature of a bill of review, (4) a bill to impeach a decree on the ground of fraud, (5) a bill to suspend or avoid the execution of a decree, (6) a bill to carry a decree into execution, (7) a bill in the nature of a bill of revivor, and (8) a bill in the

those which relate to some matter not before litigated in the court by the same persons, standing in the same interests.14 As the name imports, such a bill is a bill which begins the suit or controversy.15 Bills not original are those which relate to some matter already litigated in the court by the same persons, and which are either an addition to or a continuance of an original bill, or both, or for the purpose of cross litigation, or of controverting, suspending, or reversing some decree or order of the court, or carrying it into execution.16

§ 66. Divisions of original bills.

Original bills praying relief have been rankea under three heads, namely: (1) Bills praying the decree or order of the court touching some right claimed by the complainant in opposition to the defendant; (2) bills of interpleader, where the person exhibiting the bill claims no right in opposition to the rights claimed by the persons against whom the bill is exhibited, but prays the decree of the court touching the rights of those persons for the safety of the person exhibiting the bill; (3) bills of certiorari, which pray a writ of certiorari in order to remove a cause from an inferior court of equity for the purpose of having it further proceeded in and decided in the superior court of equity to which the process is returnable. This last bill is of rare, if any, use in America, and was not of very frequent occurrence in England.17

Original bills not praying relief are of three kinds: (1) Bills to perpetuate the testimony of witnesses; (2) bills to examine

nature of a supplemental bill. 4 Minor, Inst. Com. & St. Law (2d Ed.) 1262-1273 (1130-1141); Mitford, Eq. Pl. 33-36; Mitford & T. Pl. & Pr. in Eq. 128-130. To this latter group, it seems, should be added a supple mental bill in the nature of a bill of review.

14 Story, Eq. Pl. § 16; Cooper, Eq. Pl. 43; Mitford, Eq. Pl. 33. 15 Merwin, Eq. & Eq. Pl. 519.

16 Story, Eq. Pl. § 16; Mitford, Eq. Pl. 33.

17 Mitford, Eq. Pl. 36, 37; Cooper, Eq. Pl. 43; Story, Eq. Pl. § 18. Formerly, bills of certiorari were not infrequent in Virginia, in order to remove causes at law or in equity from the county or corporation into the circuit court. 4 Minor, Inst. Com. & St. Law (2d Ed.) 1259 (1128).

witnesses de bene esse; (3) bills for the discovery of facts and documents within the knowledge or power of the person against whom the bill is exhibited.18

§ 67. Division of bills not original.

Bills not original are either (A) an addition to or continuance of an original bill; or (B) for the purpose of cross litigation or of controverting or suspending or reversing some decree or order of the court, or carrying it into execution.

Of the former kind are: (1) A supplemental bill, which is merely an addition to the original bill, to supply some defect in its frame or structure; (2) a bill of revivor, which is a continuance of the original bill, to bring some new party before the court, when, by death or otherwise, the original party has become incapable of prosecuting or defending the suit, and the suit is, as it is in equity technically called, "abated,”—that is, suspended in its progress; (3) a bill both of revivor and supplement, which continues a suit upon an abatement, and supplies defects which have arisen from some event subsequent to the institution of the suit.

Of the latter kind are: (1) A cross bill, exhibited by a defendant in the original suit against the complainant in that suit, touching some matter in litigation in the first bill; (2) a bill of review, which is brought to examine and reverse a decree made upon a former bill, which has been duly enrolled, and thereby become a record of the court; (3) a bill to impeach a decree upon the ground of fraud; (4) a bill to suspend the operation of a decree, in special circumstances, or to avoid it, on the ground of matter which has arisen subsequent to it; (5) a bill to carry a decree made in a former suit into execution; (6) a bill in the nature of a bill of review; (7) a bill in the nature of a bill of revivor; (8) a bill in the nature of a supplemental bill; (9) a supplemental bill in the nature of a bill of review.19

18 Story, Eq. Pl. § 19; Mitford, Eq. Pl. 36, 51, et seq.; Cooper, Eq. Pl. 43.

19 Story, Eq. Pl. §§ 20, 21; 4 Minor, Inst. Com. & St. Law (2d Ed.) 1262-1273 (1130-1141); Mitford, Eq. Pl. 34-36.