can be brought up by appeal or error.39 If, upon the face of the record, anything is left to conjecture as to what was necessarily involved and decided, there is no estoppel in it when pleaded, and nothing conclusive in it when offered as evidence.40 A judgment or decree is binding upon both parties and those in privity with them. Privies are all who have acquired the property in dispute after the judgment or decree," or pending the suit," provided, in the latter case at least, that compliance was made with the necessary statutory requirements.43

a subsequent action for a continuance of the same nuisance. Baltimore & P. R. Co. v. Fifth Baptist Church, 137 U. S. 568. But where a street has been permanently occupied by a railroad company without compensation to the owner, all the damage thereby caused must be recovered in a single action. Shep herd v. Baltimore & O. R. Co., 130 U. S. 426.

39 Johnson Co. v. Wharton, 152 U. S. 252. As to the effect of an appeal, see Eastern B. & L. Ass'n v. Welling, 103 Fed. R. 352.

40 Russell v. Place, 94 U. S. 606, 610; McCarty v. Lehigh Valley R. Co., 160 U. S. 110, 120.

In

hood, 92 Fed. R. 945. For the excep tions, see Goff v. Kelly, 74 Fed. R. 327; supra, § 45. A Federal court followed a California statute and the construction of the same by the State courts, so far as to hold that a foreclosure decree of a State court against an administrator of the mortgagor was binding upon the latter's heirs, without determining whether, if the foreclosure had been instituted in the Federal court, the heirs would have been necessary parties. Cf. Norton v. House of Mercy (C. C. A.), 101 Fed. R. 382; Hearfield v. Bridges (C. C. A.), 75 Fed. R. 47. But a decree against the trustee of a mortgage does not affect

41 Moor v. Welsh Copper Co., 1 Eq. the same person when claiming as Cas. Abr. 39.

42 Ibid.

43 Jones v. Smith, 40 Fed. R. 314; infra, §375. Thus, a grantee of a mortgage is bound by judgments against the mortgagor entered before the mortgage or in suits pending when the mortgage was made. Keokuk & Western R. Co. v. Missouri, 152 U. S. 301,314. But not by judgments subsequently entered to which he was not a party. Dull v. Blackman, 169 U. S. 243; Keokuk & Western R. Co. v. Missouri, 152 U. S. 301, 314; Campbell v. Hall, 16 N. Y. 575; Southern B. & Tr. Co. v. Folsom (C. C. A.), 75 Fed. R. 929. So the beneficiary of a trust is bound by a judgment against his trustee. Kent v. Lake Superior S. C. Co., 144 U. S. 75; Rejall v. Green

trustee of another mortgage without proof that the bondholders are the same. Compton v. Jesup (C. C. A.), 68 Fed. R. 47. Cf. Carey v. Roosevelt (C. C. A.), 102 Fed. R. 569.

It has been held that stockholders who are not parties to statutory proceedings for the dissolution of a corporation are bound by a decree therein making assessments upon the stock, so that they cannot dispute the insolvency of the company and the necessity of the assessment (Hawkins v. Glenn, 131 U. S. 319; s. c., 135 U. S. 533), but that they may defend upon the ground that their shares were fully paid, or as to any other question peculiarly affecting their individual liability. Rood v. Whorton, 67 Fed. R. 434. That stockhold

certain cases, persons not parties nor their privies have been held to be bound by and to have the benefit of decrees as estoppels when they defended the suit openly to the knowledge of the adverse party and for the protection of their own interests.45 The secret payment of the expenses of the defense,46 or the public filing of a brief upon an appeal" in the first suit, is insufficient.

It has been said that a decree in a suit brought by one on behalf of a class binds the rest of the class, even those who do not come in or contribute to the suit.48 In pleading a judg ment or decree, it is not necessary to set it forth, or the proceedings upon which it was founded, at length; but so much of the decree and pleadings should be set forth as will show that the same point was then in issue.50

ers are not bound by a judgment against their corporation in a suit which was brought after the proceedings to liquidate its assets had begun. Schrader v. Manufacturers' Nat. Bank, 133 U. S. 67. Cf. Ward v. Joslin (C. C. A.), 105 Fed. R. 224. And that a judgment establishing the exemption of a bank from taxation of its property and from liability to pay a tax upon its stockholders is not an estoppel against the enforcement of a tax directly against the latter. New Orleans v. Citizens' Bank, 167 U. S. 371, 380, 402. A judg ment against the husband concerning the title to property claimed to be community property was held to estop him and his wife in a subsequent suit. Lichty v. Lewis, 63 Fed. R. 535. A State is not bound by a judgment against one of its officers for the possession of land which he claims to hold in its behalf. Tindal v. Wesley, 167 U. S. 204. See supra, § 37. A judgment against a municipal officer binds his successors in office, the municipality and the other officers so far as their official obligations are concerned. New Orleans v. Citizens' Bank, 167 U. S. 371, 389; Scotland County v. Hill, 112

49

And the court may re

U. S. 183; Harshman v. Knox Co., 122 U. S. 306; State v. Rainey, 74 Mo. 229; Harmon v. Auditor, 123 Ill. 122. The same effect is given to an order for a mandamus, Police Jury v. U. S., 60 Fed. R. 249; Ransom v. Pierre (C. C. A.), 101 Fed. R. 665; McEvoy v. New York, 56 App. Div. 222; or for a writ of prohibition. Bank of Ky. v. Stone (C. C. A.), 88 Fed. R. 383, 395, 398.

44 Plumb v. Crane, 123 U. S. 560; Bank of Ky. v. Stone, 88 Fed. R. 383, 396.

45 Cramer v. Singer Mfg. Co., 93 Fed. R. 636.

46 Cramer v. Singer Mfg. Co., 93 Fed. R. 636; Litchfield v. Goodnow, 123 U. S. 549.

47 Stryker v. Goodnow, 123 U. S. 527. 48 Gamble v. San Diego, 79 Fed. R. 487, 500. But see Compton v. Jesup, 167 U. S. 1, 20, 36; s. c. in C. C. A., 68 Fed. R. 263; supra, §§ 48, 49.

49 Ricardo v. Garcias, 12 Cl. & F. 368; Story's Eq. Pl., § 783.

50 Garcias v. Ricardo, 14 Sim. 265; Story's Eq. Pl., § 791; Emma S. M. Co. v. Emma S. M. Co. of N. Y., 1 Fed. R. 39. See Jonathan M. M. Co. v. Whitehurst, 65 Fed. R. 996.

53

quire that the decree be pleaded at length," or, if the plea sets up matter of record in the same court, that the record be shown before the plaintiff is required to take action upon the plea.52 Where a decree in a former suit is introduced in evidence on stipulation without the objection that it has not been properly pleaded, it will be given full effect as a bar although not properly pleaded. It has been said that by pleading a defense against a former decree a party waives his right to claim an estoppel under the same;" and that the opinion cannot be introduced as evidence to show what issues were tried when the decree was rendered." But offering evidence of such facts while the former decree was merely interlocutory does not waive the right to claim that it is a bar after it has ripened into a final decree. A prior decree can usually be put in evidence. without having been pleaded where the pleading of the party sets up the facts which were adjudicated by the decree; and the decree is then conclusive evidence of such facts.57

§ 133. Pleas of matter in pais.- Pleas founded upon matter in pais state some other reason, for example, a release, or an account stated, or a purchase without notice for a valuable consideration, why the plaintiff should not have relief.1 A plea of purchase without notice for a valuable consideration should deny notice positively, and should state the amount of the consideration. It is insufficient to plead that the defendant paid a "good and valuable consideration, to-wit, a certain sum of money." A plea to a bill for an injunction to restrain the infringement of a reissued patent, which set up that the claim had been unlawfully expanded so as to embrace subsequent improvements covered by later patents, was held good. A plea to a bill filed under section 4918 of the Revised Statutes against the owner of a patent interfering with that of the complainant, which set up that the invention described in the complainant's

51 Emma S. M. Co. v. Emma S. M. Co. of N. Y., 1 Fed. R. 39.

52 Ibid.

53 David Bradley Mfg. Co. v. Eagle Mfg. Co., 58 Fed. R. 721.

54 Mack v. Levy, 60 Fed. R. 751. 55 Ibid.

57 Southern Pac. R. Co. v. U. S., 168 U. S. 1, 57. § 133.

Story's Eq. Pl., §§ 795-815.

2 Wood v. Mann, 1 Sumn. 506.

3 Secombe v. Campbell, 18 Blatchf 108.

4 Hubbell v. De Land, 14 Fed. R.

56 David Bradley Mfg. Co. v. Eagle 471. Mfg. Co., 57 Fed. R. 980.

patent was described in a previous English patent published in the United States, and filed in the Patent Office here before the issue of the complainant's patent, was held bad and overruled.5

§ 134. Pleas to the discovery. Pleas to the discovery set up new matter, showing (1) that the plaintiff's case is not such as entitles a court of equity to assume jurisdiction to compel a discovery in his favor; (2) that the plaintiff has no such interest. in the subject-matter of the action as entitles him to call upon the defendant for a discovery; (3) that the defendant has no such interest in the subject-matter of the action as will entitle the plaintiff to call upon him for a discovery; (4) that the situation of the defendant renders it improper for a court of equity to compel him to make a discovery. Of them, Professor Langdell says: "But it should be added that, while demurrers to discovery are common, there are few instances of pleas of that kind; and the cases are few in which it would be advisable to resort to such a plea, since the question can be raised equally well by answer, and then the defendant's own statement of the facts will be equally conclusive." "

Unless the defendant's

§ 135. When a plea must be filed. time has been enlarged, for cause shown, by a judge of the court, upon motion for that purpose, the plea should be filed on the rule-day next succeeding that of entering the defendant's appearance.1

136. Frame of a plea.- A plea is entitled in the cause, and is headed as follows: "The plea of the above-named defendant (or, of A. B., one of the above-named defendants) to the bill of complaint of the above-named plaintiff (or plaintiffs)." When put in by more than one defendant, the heading runs as follows: "The joint and several plea of the abovenamed defendants (or of A. B. and C. D., two of the abovenamed defendants); " but if filed by husband and wife in the wife's interest only, the words "and several" should be omitted; though their use, being mere surplusage, will not vitiate the plea. The title of the plea should agree with that of the

5 Pentlarge v. Pentlarge, 19 Fed. R. 817; s. C., 22 Fed. R. 412. But see Foster v. Lindsay, 3 Dill. 126, 131. § 134.1 Mitford's Pl., ch. 2, § 2, part 2. 2 Langdell's Eq. Pl., § 148.

§ 135. Rule 18.

§ 136. 1 Daniell's Ch. Pr. (5th Am. ed.) 681.

2 Fitch v. Chapman, 2 Sim. & S. 31.

cause as stated in the bill. Any corrections which are desired to be made must be put in the heading, thus: "The plea of the above-named defendant, John Aber (in the bill, by mistake called Henry Aber);" or, "The plea of Henry Curtis and Mary his wife, lately, and in the bill called Mary Robinson, spinster" (or widow, as the case may be). When accompanied by an answer or demurrer, it should be headed: "The plea and answer;" or "The joint," or "joint and several plea and answer;" or "The joint and several plea, answer, and demurrer," etc., according to the circumstances. Like a demurrer, it is usually, but not necessarily, introduced by a useless protestation against the confession of the truth of any matter contained in the bill. After the protestation, the defendant should state in the plea the extent to which it goes; as whether it is to the whole bill, or to part only, and in the latter case the part to which it is intended to apply. Next should come the substance of the plea together with such averments as are necessary to support it. If these matters are within the defendant's knowledge he should state them positively. Otherwise upon information and belief." The allegations must be made with certainty and not by way of argument, inference, or conclusion.10 The plea cannot properly allege and rely upon matters all of which are apparent upon the face of the bill." "The conclusion of the plea is usually a repetition that the

'Daniell's Ch. Pr. (5th Am. ed.) 681,

682.

4 Daniell's Ch. Pr. (5th Am. ed.) 682. 5 Daniell's Ch. Pr. (5th Am. ed.) 682; Story's Eq. Pl., § 694.

Eq. Pl., § 662. A plea was held bad which merely alleged that the complainants, before procuring the patent which they sued to protect, "became and were fully advised" that

6 Mitford's Pl., ch. 2, § 2, part 2; the alleged inventor "could not Story's Eq. Pl., § 694.

carry the date of his invention

7 Mitford's Pl., ch. 2, § 2, part 2; further back than the month of Story's Eq. Pl., § 694.

8 Foster v. Vassall, 3 Atk. 587; Boone v. Chiles, 10 Pet. 176, 210-213; Story's Eq. Pl., § 662.

June, 1886," and that an examiner in the patent office had found, "as was the fact," that the invention had been described in previous publica

9 Bolton v. Gardner, 3 Paige (N. Y.), tions; since a traverse would only 273; Story's Eq. Pl., § 662.

10 Emma S. M. Co. v. Emma S. M. Co. of N. Y., 1 Fed. R. 39; Nabob of Arcot v. East India Co., 3 Brown, Ch. C. 292; Hudson v. Randolph (C. C. A.), 66 Fed. R. 216; Caesar v. Capell, 83 Fed. R. 403; supra, § 24; Story's

deny that complainants were advised, and that the examiner found, etc. Westinghouse El. S. Mfg. Co. v. Stanley, 65 Fed. R. 321.

11 Billing v. Flight, 1 Madd. 230; Story's Eq. Pl., § 660.