object was to create a case cognizable in the Federal courts.183 Where a collusive transfer of the cause of action was evidently made for another purpose, it was held that the jurisdiction should be retained. Admissions by the defendant after a suit is brought cannot by reducing the matter in dispute divest the court of jurisdiction.15 A dismissal upon this ground should be without prejudice.16 A motion to dismiss for want of equity can regularly be made only at a hearing.17

294. Dismissal for failure to perfect or revive a suit.— When a suit has abated or become otherwise defective before a decree, the party or parties against whom it can be continued may, upon notice served upon the person or persons entitled to revive or supply the defect in the same, move for and obtain an order, directing that these revive or supply the defect, within a certain limited time to be fixed by the court, or that else the bill be dismissed.1 If the suit abate by the death of one of several co-plaintiffs, the order may be obtained against the survivors; and it seems that the objection that there is no personal representative of the deceased plaintiff will not prevent the court from granting such an order. It is irregular in such cases to move to dismiss a bill for want of prosecution; and an order to that effect, if obtained, will be discharged for irregularity. A bill may be dismissed at a defendant's motion for the plaintiff's failure to serve with process another defendant named in the bill who is a necessary party to the suit.

§ 295. Election.- When the plaintiff is suing both at law and in equity, at the same time, for the same matter, the defendant is entitled to an order that the plaintiff elect whether

13 Lanier v. Nash, 121 U. S. 404, 410; Manhattan L. Ins. Co. v. Broughton, 109 U. S. 121.

14 Lanier v. Nash, 121 U. S. 404. 15 Fuller v. Met. L. Ins. Co., 37 Fed. R. 163. See Chicago C. Co. v. Fogg, 53 Fed. R. 72, 76, and supra, § 16.

16 Thompson v. Railroad Co., 6 Wall. 134; Kendig v. Dean, 97 U. S. 423; Van Norden v. Morton, 99 U. S. 378; Williams v. Nottawa, 104 U. S. 209. 17 La Vega v. Lapsley, 1 Woods, 428; Betts v. Lewis, 19 How. 72; Fuller v. Met. L. Ins. Co., 31 Fed. R. 696. But see Person v. Fidelity & Cas. Co.,

84 Fed. R. 759. Cf. Willis v. Willis, 42 W. Va. 522; s. c., 26 S. E. R. 515; Carlsbad v. Tibbetts, 51 Fed. R. 852; State v. Hemingway, 69 Miss. 491; Reilly v. Reilly, 139 Ill. 180; Russell v. Lamb, 82 Iowa, 558.

§ 294. Adamson v. Hall, 1 T. & R. 258; Bolton v. Bolton, 2 S. & S. 371. 2 Hinde v. Morton, 2 H. & M. 368. 3 Robinson v. Norton, 10 Beav. 484; Boddy v. Kent, 1 Meriv. 361; Sellers v. Dawson, 2 Dick. 738.

4 Jessup v. Ill. Cent. R. Co., 36 Fed. R. 735; Picquet v. Swan, 5 Mason, 561.

he will proceed in equity or at law. The case of a mortgagee is an exception to this rule; for, in the absence of any statutory restriction, he can proceed at the same time to foreclose his mortgage in equity and sue on the bond at law. This exception, however, it has been held in England, does not extend to the case of a vendor seeking to enforce his lien and sue at law for his debt. In a special case, the plaintiff may be allowed to proceed partially at equity and partially at law, and compelled to make a special election. The principle of election plaintiff sued at once in The defendant cannot

has been extended to a case where the both a foreign and a domestic court. move for the order until after he has answered, and the time for exceptions has expired without one being taken, or the answer has been adjudged sufficient. A joint plea and answer is not, it seems, sufficient to enable a defendant to obtain such an order. The order should allow the plaintiff a reasonable time within which to make his election. The plaintiff may move to discharge the order for irregularity in obtaining it, or upon the merits confessed in the answer or proved in an affidavit.9 If, upon such a motion, any doubt arises as to whether the suit in equity and the action at law are for the same matter, it is customary to direct an inquiry into that fact; 10 during the progress of which, all proceedings in both courts are usually stayed," unless the plaintiff can show that justice will be better done by permitting proceedings to some extent, when he may by special leave continue in one or both, at the court's discretion.12 If the plaintiff requires further time within which to make his election, he should apply for it to the court by motion upon notice. At the expiration of the time allowed him he

13

295. 1 Mitford's Pl. (Tyler's ed.) 340; Carlisle v. Cooper, 3 C. E. Green (N. J.), 241; Livingston v. Kane, 3 J. Ch. (N. Y.) 224.

2 Booth v. Booth, 2 Atk. 343; Dunkley v. Van Buren, 3 J. Ch. (N. Y.) 330. 3 Barker v. Smark, 3 Beav. 64. 4 Barker v. Dumaresque, 2 Atk. 119; Anon., 1 Vern. 104; Franklin v. Hersch, 3 Tenn. Ch. 467.

5 Pieters v. Thompson, G. Cooper,

294.

6 Mitford's Pl. (Tyler's ed.) 340; Leicester v. Leicester, 10 Sim. 87.

7 Fisher v. Mee, 3 Meriv. 45; Soule v. Corning, 11 Paige (N. Y.), 412.

8 Bracken v. Martin, 3 Yerg. (Tenn.) 55; Rogers v. Vosburgh, 4 J. Ch. (N. Y.) 84.

9 Daniell's Ch. Pr. (2d Am. ed.) 817. 10 Mouseley v. Basnett, 1 Ves. & B. 382, n.

11 Mills v. Fry, 3 Ves. & B. 9; Anon., 2 Madd. 395; Daniell's Ch. Pr. 817. 12 Amory v. Brodrick, Jacob, 530; Carwick v. Young, 2 Swanst. 239. 13 Daniell's Ch. Pr. (5th Am. ed.) 817.

must make his election, which is usually done by filing a written statement of it signed by him or his solicitor in the clerk's office; 14 or else his bill will be dismissed. If he elect to proceed in equity, his proceedings at law are stayed by the order,16 and either the defendant will be allowed to recover the costs of the action, or the plaintiff will be directed by the court of equity to pay them." If the plaintiff elect to proceed at law, his bill in equity will be dismissed with costs.18 Such a dismissal will, however, be no bar to a subsequent suit.19

14 Ibid.

15 Daniell's Ch. Pr. (5th Am. ed.)816; Boyd v. Heinzelman, 1 Ves. & B. 381. 16 Daniell's Ch. Pr. (5th Am. ed.) 816. 17 Simpson v. Sadd, 16 C. B. 26; Carwick v. Young, 2 Swanst. 239.

18 Jones v. Earl of Strafford, 8 P. Wms. 79, 90, n. B.

19 Countess of Plymouth v. Bladon, 2 Vern. 32; Livingston v. Kane, 3 J. Ch. (N. Y.) 224; Rogers v. Vosburgh, 4 J. Ch. (N. Y.) 84.

CHAPTER XXI.

THE HEARING.

§ 296. Bringing a suit to a hearing.- The old practice of bringing a suit to a hearing was the procurement of an order by the plaintiff setting it down for hearing within four weeks after the closing of the evidence. Upon his failure to do this defendant might either set it down himself, or move to dismiss the bill for want of prosecution. The party setting down was obliged to sue out a subpoena to hear judgment, and to have the same served upon the solicitors of the other parties.1 If a plaintiff wished to set a cause down for a hearing upon bill and answer, he was obliged to do so within the time allowed him for filing the replication. The practice upon this subject in the United States courts is, however, very loose,- some circuits following the analogy of the English practice; some regulating the matter by rule; and some adopting by custom a practice very similar to that of the courts of the State where the circuit is held. Calendar practice in the several circuits is usually modeled on the State practice in that respect. In the Southern District of New York, the rules provide that "Issues, whether of law or fact, and appeals, in this court, may be noticed for trial or hearing, and placed upon the calendar,

§ 296. 1 Daniell's Ch. Pr. (5th Am. the bill and answer after a replicaed.) 963-971; 3 Bl. Com. 450. tion when the time to take testi

2 Daniell's Ch. Pr. (5th Am. ed.) 964, mony has expired, without any testi965.

3 By statute, a preference is given in all circuits and in the Supreme Court to actions in which a State is a party or in which the execution of the revenue laws of a State is enjoined. U.S. R. S., §949; Ward v. State, 12 Wall. 163; Hoge v. R. & D. R. Co., 93 U. S. 1; Davenport v. Dows, 15 Wall. 390; Miller v. State, 12 Wall. 159. It has been held: that the defendant may set the case down for a hearing upon

mony being taken and no motions upon the answer are pending. McGorray v. O'Connor (C. C. A.), 87 Fed. R. 586. Thus, where nothing is done for two years after issue joined, the defendant may put the cause on the calendar and enter a decree dismiss ing the bill, and in such a case leave to discontinue was denied the plaintiff. Welsbach Light Co. v. Mahler, 88 Fed. R. 427.

by either party; and either party noticing the same may, when the cause shall be called, move the trial or hearing, and take verdict or judgment, or order to dismiss the suit for not going to trial, as the court shall direct." "When no proceedings are taken by either party within thirty days after replication, for the examination of witnesses out of court, either party may set the cause down for hearing upon the pleadings." If an original and a cross cause have been set down for hearing at different times, and other causes intervene, the plaintiff in whichever of them is below the other will usually upon motion obtain leave to bring it forward, so that both causes may be heard together. Where one defendant has demurred and another filed a plea, it is the usual practice to postpone the hearing upon the plea until the demurrer has been determined." A hearing will not be given upon an agreed statement of facts without pleadings, even if a State statute authorizes such a practice.9

§ 297. Manner of hearing a cause. The English practice upon the hearing of a cause where all parties appear upon its being called, has been thus described: "The leading counsel for the plaintiff opens the plaintiff's case and in so doing states, first the bill, and then the answers, if any pointing out the matters in issue, and questions in equity arising therefrom; after which the plaintiff's evidence is read, either by his leading or his junior counsel, and their arguments in support of the case are adduced. The counsel for the defendant are then heard, in support of the defendant's case, and his evidence is read by them; and the plaintiff's senior counsel is then heard in reply. When all are heard, the court pronounces the decree, either immediately or at a subsequent day."1 It is usual in the United States, to waive the reading, and for counsel to state the substance of the pleadings and testimony, which are submitted to the judge at, or shortly after, the conclusion of the oral arguments, with written arguments upon the law and the

4U. S. C. C., S. D. N. Y., Rule of Jan. 14, 1871.

5 U. S. C. C., S. D. N. Y., Rule 109. 6 Hinde's Pr. 415; 3 Bl. Com. 451. 7 Campbell v. Mayor of New York, 33 Fed. R. 795.

8 Nickerson v. A., T. & S. F. R. Co., 30 Fed. R. 85; s. c., 1 McCrary, 383.

9 Nickerson v. A., T. & S. F. R. Co., 30 Fed. R. 85; s. c., 1 McCrary, 383; supra, § 6.

§ 297. Daniell's Ch. Pr. (5th Am. ed.) 1988.