Εικόνες σελίδας
PDF
Ηλεκτρ. έκδοση

son acts in both these capacities, by the fee bill he can take fees only in one. (d)

The bill, being fairly written, is to be filed with the clerk of the court, and all records, books, and proceedings, which relate to the business of the court. (e)

No bill shall be filed for a complainant, not residing in this state, before security for costs, by a sufficient freeholder of the state, by a bond to the defendant, in the usual form shall be given, and filed in the office of the register or assistant register, unless a solicitor prosecutes the same; in which case the solicitor shall be deemed to have become security for costs if such bond shall not have been filed; and where at any time pending the suit the complainant shall remove out of this state, and the solicitor shall thereafter proceed in the cause before such security shall be given, he shall in such cases also be deemed to have become security for costs; but he shall not in any case be liable for an amount exceeding one hundred dollars, or where, if there shall be a plurality of complainants, one of them shall be resident in this state. (ƒ)

Constituent parts of an Original Bill.

The parts of an original bill are distinguished as follows:

1. The direction or address of the bill,

"To the honorable James Kent, &c. &c."

2. The introduction, containing the names and description of the persons presenting the bill,

"Your orator A. B. &c."

3. The premises, or stating part of the bill, which contains the circumstances of the complainant's case.

[blocks in formation]

17

All process

and proceedings to be filed

with the clerk.

[ocr errors][subsumed]

9

4. The confederating part, alleging the defendants combine and confederate together,

"But now so it is, may it please your honor,

that the defendants combining and confederating, &c. &c."

5. The charging part, in which the complainant alleges that the defendants have prepared certain excuses for delaying complainant with his demands, and charges matter to show the insufficiency of those excuses,

"The said confederates sometimes allege and

pretend, &c. whereas your orator charges the truth to be, &c."

6. The clause of jurisdiction, which avers that the complainant can have no relief but in a court of equity, "In tender consideration whereof, and forasmuch as your orator is remediless in the premises by the strict rules of common law, and relievable only in a court of equity, where matters of this nature are properly cognizable."

7. The interrogatory part,

"To the end, therefore, that the said confederates may respectively, full, true and perfect answers make."

8. Prayer for relief.

9. Prayer for process,

[ocr errors]

May it please your honor to grant unto your orator a writ of subpoena, &c."

Division of bills.

Bills with their several kinds and distinctions, may be divided into three classes or heads: 1st. original bills, 2d. auxiliary bills, and 3d. bills in the nature of original bills.

1st. Original bills relate to some matter not before litigated in the court by the same persons, standing in the

same interests, under which the following may be ranged:

Bills praying the decree of the court, &c.-of interpleader of certiorari*-to perpetuate the testimony of witnesses of discovery of facts-of quia timet—of ⚫ peace; and of information.

2d. Auxiliary bills, which are filed in aid of original bills; under this class, may be placed bills of revivor, and also bills of revivor and supplement.

3d. Bills in the nature of original bills, being sometimes auxiliary and sometimes otherwise, and those which tend to oppose or seek the benefit of former bills, such as cross bills-bills of review-in the nature of bills of review-to impeach a decree on the ground of fraud -to carry a decree in a former suit into executionin the nature of bills of revivor-in the nature of supplemental bills-to suspend the operation of decrees, and also bills filed by the direction of the court for the purpose of obtaining its decrees.

To the first class of bills may be added, bills for dower, or a partition-bills to marshal securities-bills to marshal assets, and bills of foreclosure.

Definition of Bills.

An original bill, so called, prays the decree of the court touching some right claimed by the person exhibiting the bill, in opposition to some right claimed by the person against whom the bill is exhibited. (g)

A bill of interpleader 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. (h)

Bills of certiorari; not in use in this state, having no inferior court of equity.

[blocks in formation]

10

A bill of certiorari prays to remove a cause from an inferior court of equity; this bill is not used in this state, there being no inferior court of equity therein.

A bill to perpetuate the testimony of witnesses, prays leave to examine them, stating that the witnesses are old, infirm, or sick, or going beyond the sea; whereby the party is in danger of losing the benefit of their testimony. (i)

A bill of discovery, emphatically so called, prays the discovery of facts resting, in the knowledge of the defendant, or of deeds or writings in his custody or power, and seeks no other relief than the mere discovery of the facts, deeds, &c. (j)

A bill of quia timet is filed when a person is entitled to a property of a personal nature after another's death, and has reason to apprehend it may be destroyed by the present possessor, in such a case he may exhibit a bill in the court of equity of quia timet. (k)

A bill of peace is filed where a person has a right which may be controverted by a variety of others at different times, and by different actions, as in the disputes between the tenants of two several manors respecting a right of commonage, he may apply to the court of equity by bill, which is called a bill of peace. (1)

Bills of information are filed when the state, or those whose interests are the objects of its peculiar care, deem it expedient to apply to a court of equity for the purpose of having either of their respective rights protected, or more clearly ascertained.(m)

A supplemental bill is occasioned by some defect in a suit already instituted, whereby the parties cannot

[blocks in formation]

obtain that complete justice to which otherwise the case made by their bill would have entitled them. As where any thing happens subsequent to the original bill, which occasions a change of interest, or where the original bill is found defective, or any other part of the proceedings, &c. (n)

A bill of revivor becomes necessary where a change of interest is occasioned by or in consequence of the death of a party, plaintiff or defendant, whose interest is not determined by his death. (0)

A bill of revivor and supplement is nearly a compound of those two species of bills, and in its separate parts must be framed and proceeded on as such. (p)

A cross bill is a bill brought by the defendant against the plaintiff, or other parties in a former bill depending, touching the matter in question in that bill. (q)

A bill of review.-The object of this bill is the examination and reversal of a decree made upon a former hill, signed and enrolled. (r)

A bill in the nature of a bill of review, to examine and reverse decrees, is brought by persons not bound by the decree, as where a decree is made against a person who had no interest at all in the matter in dispute, or had not such an interest as is sufficient to render the decree against him binding upon some person claiming after him. Relief may be obtained against error in the decree by a bill in the nature of a bill of review. (s)

A bill impeaching decrees upon the ground of fraud. If a decree has been obtained by fraud, it may be impeached by original bill, without leave of the court, as in the case of a decree made against a trustee, the

[blocks in formation]
« ΠροηγούμενηΣυνέχεια »