require an answer under oath with regard to certain specified interrogatories, the answer of the defendant, though under oath, except such part thereof as shall be directly responsive to such interrogatories, shall not be evidence in his favor, unless the cause be set down for hearing on bill and answer only; but may nevertheless be used as an affidavit, with the same effect as heretofore, on a motion to grant or dissolve an injunction, or on any other incidental motion in the cause. But this shall not prevent a defendant from becoming a witness in his own behalf under section 3 of the Act of Congress of July 2, 1864." It rarely happens that advantage of this rule is not taken by a waiver inserted here, or more frequently in the prayer of process, in order to avoid the rule, that otherwise an allegation responsive to the bill in a sworn answer is presumed to be true, unless rebutted by the testimony of two witnesses, or one witness and strong corroborating circumstances.3 In accordance with the maxim that he who seeks equity must do equity, a court of equity often refuses relief to one seeking its aid, unless upon condition that he shall do what it considers equitable to the defendant, or sometimes even to a third person. In some cases it enforces this by the entry of a conditional decree without reference to the pleadings." But the more usual practice is to insist that the plaintiff shall offer to perform, or, in some cases, allege the performance of, the equitable act that it requires of him in his bill, which otherwise will be demurrable. Thus, a bill to cancel securities claimed to be usurious, or otherwise rendered void by a statute, must, in the absence of a State statute to the contrary, contain an offer by the plaintiff to pay the defendant the money he has received therefor with lawful interest. So a bill to redeem a mortgage must contain an offer to pay what is due thereon, though the particular sum need not be specified. A bill to set aside a judicial sale as void must be accom 2 Amendment of 1871 to Rule 41. 5 Walden v. Bodley, 14 Pet. 156, 164, 165; infra, § 321. 436; Tupper v. Powell, 1 J. Ch. (N. Y.) 439; Matthews v. Warner, 6 Fed. R. 461, 465; s. c., 112 U. S. 600. 8 Story's Eq. Pl., § 187a; Harding v. Pingey, 10 Jurist (N. S.), 872; Perry v. 6 Mo., K. & T. Tr. Co. v. Krumseig, Carr, 41 N. H. 371; Robinson v. Iron 172 U. S. 351. Ry. Co., 135 U. S. 522; Gordon v. 7 Mason v. Gardiner, 4 Brown, C. C. Smith (C. C. A.), 62 Fed. R. 503. panied by a tender or offer of the purchase-money with interest, provided it was applied for the benefit of the estate, unless that money has been first repaid, which the court may require to be done before the bill is filed. It seems that a bill to set aside a foreclosure of a railway mortgage should contain an offer of payment of the amount admitted to be due under the mortgage, and of the costs of the foreclosure suit, or at least show some reason why such an offer should not be required.10 A bill to set aside a tax sale ordinarily must contain an offer to repay the purchaser, at least, all legal taxes on the property paid by him, both those for which the property was sold and those subsequently levied thereupon and paid by him, with interest upon each sum." A bill to restrain the collection of State taxes must be preceded by payment of "what is conceded to be due, or what can be seen to be due on the face of the bill, or be shown by affidavits, whether conceded or not, before the preliminary injunction should be granted." " If the whole tax is claimed to be void as improperly assessed, it seems that the complainant must tender the amount he would owe if a proper assessment had been made." It was held, however, that the rule did not apply to a special enactment which was fundamentally void and entirely illegal. If the proper officer refuses to receive a part of the tax, it must be tendered without the condition annexed of a receipt in full.15 Ordinarily, where it is impracticable for the plaintiff to ascertain the amount actually due, and the defendant denies his right to any relief, a tender in the bill without a previous payment is sufficient; 16 and in such a case an offer to pay the money into 9 Davis v. Gaines, 104 U. S. 386. But see Rush v. First Nat. Bank (C. C. A.), 71 Fed. R. 102. & St. P. R. Co. v. Hartshorn, 30 Fed. R. 541. 13 State Railroad Tax Cases, 92 U.S. 10 Carey v. Houston & T. C. Ry. Co., 575, 617; National Bank v. Kimball, 45 Fed. R. 438, 443. 11 Gage v. Pumpelly, 115 U. S. 454. But see Mendenhall v. Hall, 134 U. S. 559, 569. 12 State Railroad Tax Cases, 92 U. S. 575, 617; Albuquerque v. Perea, 147 U. S. 87. But see Chicago, B. & Q. R. Co. v. Republic County (C. C. A.), 67 Fed. R. 411; Chicago, B. & Q. R. Co. v. B. of C. of Norton County (C. C. A.), 67 Fed. R. 458; Chicago, M. 103 U. S. 732. 14 Norwood v. Baker, 172 U. S. 269, 293. 15 State Railroad Tax Cases, 92 U. S. 575, 617; National Bank v. Kimball, 103 U. S. 732. 16 Gordon v. Smith (C. C. A.), 62 Fed. R. 503; Butchers' & Drovers' S. Y. Co. v. Louisville & N. R. Co. (C. C. A.), 67 Fed. R. 35. court whenever so ordered is equivalent to a payment into court in the first instance.17 A bill to compel the specific performance of a contract by a defendant should, it seems, contain an offer by the plaintiff to perform his part thereof.18 And formerly it was,19 but no longer is,20 required that a bill for an account should contain an offer on the part of the plaintiff to pay the balance, if any, found due against him. But a bill filed by the United States to vacate a patent for public lands as obtained by fraud, need not contain an offer to return the money paid therefor by the fraudulent patentee.21 Nor need a bill to obtain relief against an infringement of a copyright contain a waiver of the complainant's statutory right to a forfeiture of the piratical plates." It is, however, a rule in equity, that no person will be compelled to discover that which may expose him to a penalty or forfeiture.23 A discovery of such matters can only be compelled when the complainant is the only person who can enforce the penalty or forfeiture, and he is willing to waive it," as, for example, in a case of infringement of copyright.25 An omission of a waiver, tender, or offer, whenever considered necessary, is a ground for demurrer; 26 but leave to amend is in such cases usually given." And in many, but not all cases,28 when no actual tender is required, a general offer to do whatever equity requires in the premises seems to be sufficient.29 17 Cheney v. Bilby (C. C. A.), 74 Fed. 563; Atwill v. Ferrett, 2 Blatchf. 39; R. 52. U. S. v. White, 17 Fed. R. 561, 565; Snow v. Mast, 63 Fed. R. 623. 18 Daniell's Ch. Pr. (2d Am. ed.) 442; Stapylton v. Scott, 13 Ves. 425; Fife v. Clayton, 13 Ves. 546. 19 Godbolt v. Watts, 2 Anst. 543; Daniell's Ch. Pr. (2d Am. ed.) 442. 20 Colombian Government v. Roths child, 1 Simons, 94, 103; Wells v. Strange, 5 Ga. 22. 21 U. S. v. Minor, 114 U. S. 233; U. S. v. Trinidad Coal & Coke Co., 137 U. S. 160. See also Moffat v. U. S., 112 U. S. 24; U. S. v. White, 17 Fed. R. 561, 565; U. S. v. Pratt C. & C. Co., 18 Fed. R. 708. 22 Farmer v. Calvert Lithog. Co., 1 Flippin, 228. But see Snow v. Mast, 63 Fed. R. 623. 24 Lord Uxbridge v. Staveland, 1 Ves. Sen. 56; Atwill v. Ferrett, 2 Blatchf. 39. 25 Atwill v. Ferrett, 2 Blatchf. 39; Farmer v. Calvert Lithog. Co., 1 Flippin, 228, 233; infra, § 109. 26 U. S. v. Pratt C. & C. Co., 18 Fed. R. 708. 27 Chicago, B. & Z. R. Co. v. Republic County (C. C. A.), 67 Fed. R. 413; Chicago, B. & Q. R. Co. v. B. of C. of Norton County (C. C. A.), 67 Fed. R. 458. 28 State Railroad Tax Cases, 92 U. S. 75, 617. 29 Gordon v. Smith (C. C. A.), 67 23 Stewart v. Drasha, 4 McLean, Fed. R. 503. § 85. The prayer of process.-The prayer of process usually requests the issue of a subpoena to compel the defendant. to appear and answer and abide the judgment of the courts "The prayer for process of subpoena in the bill shall contain the names of all the defendants named in the introductory part of the bill, and if any of them are known to be infants under age, or otherwise under guardianship, shall state the fact, so that the court may take order thereon as justice may require, upon the return of the process. If an injunction or a writ of ne exeat regno, or any other special order pending the suit, is asked for in the prayer for relief, that shall be sufficient, without repeating the same in the prayer for process." "The plaintiff may complain and tell stories of whom he pleases, but they only are defendants against whom process is prayed." It was, however, held that the omission in the prayer of process of the name of a defendant otherwise sufficiently described in the bill was waived by his general appearance, and that no other defendant could take advantage of the defect. But the weight of authority holds that a bill is demurrable, which omits the prayer for process, or which prays process against some but not all of the defendants named in its body." If a party is sought to be sued in both his individual and a representative capacity, process should be asked against him in both capacities. Otherwise, it seems, that he would be held to be a party only in that capacity in which he was therein referred to, even though in the subpoena and in the introduction to the bill he were named as a defendant in both capacities." If process be prayed against a defendant in a representative capacity and the subpoena be issued against him generally, the bill is not demurrable. The proper remedy is a motion to set aside the § 85. Equity Rule 23; Segee v. Thomas, 3 Blatchf. C. C. 11; Buerk v. Imhaeuser, 8 Fed. R. 457. 2 Lord Chancellor Parker in Fawkes v. Pratt, 1 P. Wms. 593. 'Buerk v. Imhaeuser, 8 Fed. R. 457; J. K. Orr Shoe Co. v. Kimbrough, 98 Ga. 537; s. C., 25 S. E. R. 204. 4 Carlsbad v. Tibbetts, 51 Fed. R. 852, 855; Goebel v. Am. Ry. S. Co., 55 Fed. R. 825; Elmendorf v. Delancey, 1 Hopkins (N. Y.), 555. Contra, Jennes v. Landes, 84 Fed. R. 73. 5 Ibid. 6 Carter v. Ingraham, 43 Ala. 78. But see Brasher v. Van Cortlandt, 2 J. Ch. (N. Y.) 247. 7 Ibid. 8 Walton v. Herbert, 3 Green, Ch. (N. J.) 73. subpoena. The omission of the prayer for process does not render void an injunction granted upon the bill.10 § 86. The signature to a bill.-"Every bill shall contain the signature of counsel annexed to it, which shall be considered as an affirmation on his part that, upon the instructions given to him and the case laid before him, there is good ground for the suit in the manner in which it is framed." This practice began, it is said, in the time of Sir Thomas More. Before that time it was the practice for a master 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. The remedy for a defect in this respect is by a motion to take the bill off the file, or by demurrer. The court may of its own motion order the bill taken off the file. Leave to amend by adding the signature is always granted. If the defendant should answer without taking the objection, such a defect would probably be waived. If the complainant sued in person, the signature of counsel would probably be dispensed with.10 A bill is also usually signed by the solicitor, who may be the same person as the counsel, but need not be signed by the plaintiff unless he sue in person. - § 87. Affidavits to bills. An affidavit must be annexed to the bill in the following cases and no others, although a superfluous affidavit will not make the bill bad: A bill to obtain the benefit of an instrument upon which an action at law would lie, were it not either lost or out of the possession of the complainant and believed to be in that of the defendant, must be supported by an affidavit of those facts which are necessary to give the court jurisdiction. A bill to perpetuate the testimony of 7 French v. Dear, 5 Ves. 547. 8 Kirkley v. Burton, 5 Madd. 378; Dwight v. Humphreys, 3 McLean, 104. 9 See U. S. R. S., § 954. 10 See U. S. R. S., § 747; 1 Hoffman's Ch. Pr. 97. § 87. 1 Walmsley v. Child, 1 Ves. Sen. 343; Whitfield v. Fausset, 1 Ves. Sen. 392; Story's Eq. Pl., §§ 313, 477; Daniell's Ch. Pr. (2d Am. ed.) 449, 450. |