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facts, called briefs or points. The course is much the same where the cause is set down for a hearing upon bill and answer. The pleadings only are then read, and the answer is admitted to be true in all its material allegations of fact, although not responsive to the bill,' even when not stated positively, and the defendant only avers that he believes and hopes to be able to prove such facts. But the plaintiff does not thereby admit conclusions of law, nor allegations as to matters concerning which the court takes judicial notice. No other evidence is then permitted except matters of record to which the answer refers. Unless relevant to some issue, it is not necessary to produce the mortgage bonds upon the hearing of a foreclosure suit. It has been said that a judge may hear a cause in which he was retained before he received his judicial appointment; but the almost universal practice is for a judge to refuse to sit in such a case.

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§ 298. Rules of decision upon a hearing. All decisions made in a former stage of the cause are open for review upon the final hearing. But if the evidence is unchanged, a judge will rarely refuse to follow a ruling made by one of his colleagues in the same or a similar case. Greater respect is paid to a ruling by the Circuit Justice than to one by a Circuit Judge; and a ruling by a Circuit Judge has more weight than one by a District Judge. In matters of substantive as distin

2 Lake E. & W. R. Co. v. Indianapolis Nat. Bank, 65 Fed. R. 690; Parker v. Concord, 39 Fed. R. 718.

Lake E. & W. R. Co. v. Indianapolis Nat. Bank, 65 Fed. R. 690.

4 Brinckerhoff v. Brown, 7 J. Ch. (N. Y.) 217; Dale v. McEvers, 2 Cow. (N. Y.) 118.

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trict judge is not disqualified from trying the validity of bonds issued by a county in which he is a resident and taxpayer. Wade v. Travis County, 72 Fed. R. 985.

§ 298. Fourniquet v. Perkins, 16 How. 82; Pulliam v. Pulliam, 10 Fed. R. 53. But see Coupe v. Weather

5 Taylor v. Barclay, 2 Sim. 213. See head, 37 Fed. R. 16. supra, § 106.

6 Anon., 1 Barb. Ch. (N. Y.) 73.

7 Dickerman v. Northern Tr. Co., 176 U. S. 181; Northern Tr. Co. v. Columbia S. P. Co., 75 Fed. R. 936; Toler v. East Tenn., V. & G. Ry. Co., 67 Fed. R. 168, 181.

8 Thelusson v. Rendlesham, 7 H. L. C. 429; The Richmond, 9 Fed. R. 863, and citations. It was held that a dis

2 Cole S. M. Co. v. Va. & G. H. W. Co., 1 Saw. 685; Wakelee v. Davis, 44 Fed. R. 532.

3 Worswick Mfg. Co. v. Philadel phia, 30 Fed. R. 625. But see N. P. R. Co. v. Sanders, 47 Fed. R. 504.

4 Preston v. Walsh, 10 Fed. R. 315. But see U. S. v. Huggell, 40 Fed. R 636, 644.

guished from adjective law, that is, of the law creating rights but not of that merely regulating practice, the Federal courts are certainly so far as property in land is affected thereby, and probably altogether-bound by and will follow the statutes of the State within whose jurisdiction is the property that is the subject of the suit. A State statute, however, which is merely declaratory of the law cannot affect the rules applying to causes of action that arose before its enactment. Whether a State statute has been properly passed so as to take effect is a question of law, in determining which the courts of the United States will follow the decisions in the State wherein it is claimed to be in force. So, too, in construing a statute or the Constitution of a State, the Federal courts will in general follow the construction put upon it by the State courts," when that construction has been settled by the decisions of its highest tribunal." Even if, before the State courts have construed it, a State statute is given one construction by a Federal court, and subsequently the highest court of the State construes it differently; or if the Federal court have first construed it in ignorance of its construction by the highest tribunal of the State, the Federal courts will, in subsequent cases, disregard their former ruling and follow that of the State court. It has even been held that the Federal courts will not investigate the claim that the decision of the State court was obtained by collusion between the parties to the case in which it was ob

Watts v. Waddle, 6 Pet. 389; McGoon v. Scales, 9 Wall. 23; Gaines v. Fuentes, 92 U. S. 10; Brine v. Insurance Co., 96 U. S. 627; Pulliam v. Pulliam, 10 Fed. R. 53, 77. See infra, § 375.

sissippi, 133 U. S. 587; Peters v. Bain, 133 U. S. 670; Case v. Kelly, 133 U. S. 21. Where it was claimed that the decision of such a question was pending before the State Supreme Court, a motion for an adjournment until

6 Koshkonong v. Burton, 104 U. S. that court had made its decision was 668.

7 South Ottawa v. Perkins, 94 U. S. 260; Post v. Supervisors, 105 U. S. 667; Leeper v. Texas, 139 U. S. 462. 8 Polk's Lessee v. Wendal, 7 Cranch, 87; Nesmith v. Sheldon, 7 How. 812; Walker v. State H. Com'rs, 17 Wall. 648; Elmwood v. Marcy, 92 U. S. 289; East Oakland v. Skinner, 94 U. S. 255; Louisville, N. O. & T. Ry. Co. v. Mis

denied. Detroit v. Detroit City Ry. Co., 55 Fed. R. 569.

9 Fairfield v. County of Gallatin, 100 U. S. 47. A decree will be reversed on this ground when the decision of the State court was rendered pending the appeal. Stutsman County v. Wallace, 142 U. S. 293. But see Bur. gess v. Seligman, 107 U. S. 20; and infra, § 375.

tained.10 The courts of the United States are not bound by a decision of a State court construing a statute which is claimed to be a contract by the State; since otherwise the clause in the national Constitution forbidding a State to pass a law impairing the obligations of contracts might be violated with impunity." For a similar reason, if different constructions have been given to the same statute or constitutional provision by the courts of a State at different times, the Federal courts are not "bound to follow the later decisions, if thereby contract rights which have accrued under earlier rulings will be injuriously affected." Otherwise, said Chief Justice Taney, "the provision of the Constitution of the United States, which secures to the citizens of another State the right to sue in the courts of the United States, might become utterly useless and nugatory." It seems that the Federal courts will give to a right created by a well-recognized local custom established and acquiesced in within a State, the same force as if it had been created by a State statute. In deciding questions of general commercial law, however, upon which the statutes of a State are silent, the Federal courts are not bound by the decisions of the State courts, but decide according to their own views of what the law is and should be.15

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$299. Objections which cannot be made at the hearing.As the provisions of the equity rules and the other regulations

11 Jefferson Branch Bank v. Skelly, 1 Black, 436. See Railroad Co. v. Falconer, 103 U. S. 821, 822.

12 Waite, C. J., in Douglass v. County of Pike, 101 U. S. 677, 686. See also Rowan v. Runnels, 5 How. 134; Ohio L. Ins. & Tr. Co. v. Debolt, 16 How. 416; Gelpcke v. Dubuque, 1 Wall. 175; Thompson v. Perrine, 103 U. S. 806.

10 East Oakland v. Skinner, 94 U. S. tional Bank, 100 U. S. 239; Railroad 255. Co. v. National Bank, 102 U. S. 14; Butler v. Douglass, 3 Fed. R. 612. See Burgess v. Seligman, 107 U. S. 20. See infra, § 375. A plea of res adjudicata by a decision of a State court between the same parties or their privies is valid, although the question there decided arose on demurrer and was a question of general commercial law and equity jurisprudence. Fuller v. Hamilton County, 53 Fed. R. 411. In one case, where the rule of the Federal was different from that of the State courts, Judge McCrary followed the latter, since otherwise there was a probability that a party to the suit would be subjected to a double payment. Sonstiby v. Keeley, 7 Fed. R. 447.

13 Rowan v. Runnels, 5 How. 134. 14 Swift v. Tyson, 16 Pet. 1, 18; Gaines v. Fuentes, 92 U. S. 10; Railroad Co. v. National Bank, 102 U. S. 14, 29. See supra, § 7.

15 Swift v. Tyson, 16 Pet. 1; Carpenter v. Providence-Washington Ins. Co., 16 Pet. 495; Oates v. Na

of practice are chiefly designed to facilitate the speedy and orderly progress of a cause to a hearing, after a cause has been brought to a hearing it is a general rule that no objections as to form or the delay in taking a previous proceeding will be allowed to be taken then for the first time.' Thus, the rules provide that "if a defendant shall, at the hearing of a cause, object that a suit is defective for want of parties, not having by plea or answer taken the objection, and therein specified by name or description the parties to whom the objection applies, the court (if it shall think fit) shall be at liberty to make a decree saving the rights of the absent parties." "Where the defendant shall, by his answer, suggest that the bill is defective for want of parties, the plaintiff shall be at liberty, within fourteen days after answer filed, to set down the cause for argument upon that objection only; and the purpose for which the same is so set down shall be notified by an entry, to be made in the clerk's order-book in the form or to the effect following, (that is to say): 'Set down upon the defendant's objection for want of parties.' And where the plaintiff shall not so set down his cause, but shall proceed therewith to a hearing, notwithstanding an objection for want of parties taken by the answer, he shall not, at the hearing of the cause, if the defendant's objection shall then be allowed, be entitled as of course to an order for liberty to amend his bill by adding parties. But the court, if it thinks fit, shall be at liberty to dismiss the bill." An amended bill filed without leave upon the day of the hearing may be disregarded by the court. It seems that a plea stating a mere conclusion of law or a plea unaccompanied by the proper certificate of counsel and affidavit of the defendant, may also be disregarded." Advantage may, however, be taken of the laches of the plaintiff by a defendant who has not pleaded it. The objection that the allegations in the bill show no ground for the interference of a court of equity may be taken at any time. The objection that the plaintiff has an adequate remedy at law is waived by the de

§ 299.

Allen v. Mayor, etc. of N. Y., 18 Blatchf. 239.

2 Rule 53.

3 Rule 52.

4 Terry v. McLure, 103 U. S. 442.

5 National Bank v. Insurance Co., 104 U. S. 54.

6 Baker v. Biddle, 1 Bald. 394.

7 Baker v. Biddle, Bald. 394; Quir

olo v. Ardito, 1 Fed. R. 610.

fendant unless raised in a demurrer, plea, or answer; but it may be taken by the court at any time.

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§ 300. Action of the court upon a hearing. The court may upon the hearing of a cause either decide all the questions raised therein and make a final decree, or merely dispose of some of them and give directions to facilitate the decision of those which remain. If the court inclines in favor of the defendant, it will usually render a final decree dismissing the bill. The dismissal may be absolute or without prejudice. An absolute decree of dismissal is an absolute bar to any subsequent suit brought for the same cause.1 A dismissal without prejudice is no bar to another suit brought for the same cause of action, provided that the defects on account of which the bill was dismissed are remedied. A dismissal without prejudice is usually ordered when a bill is dismissed for want of parties,' or for want of jurisdiction in a Federal court, or for multifariousness, or for "a slip or mistake in the pleadings or in the proof." The Supreme Court will reverse a decree which dismissed a bill absolutely when the dismissal should have been without prejudice. Where the dismissal is because the plaintiff has an adequate remedy at law, the decree should state that it is without prejudice to a suit at law. If, on the other hand, the court inclines in favor of the plaintiff, unless the bill pray merely for a perpetual injunction, it rarely renders a final decree at the first hearing of the cause. It often directs a refer

8 Reynes v. Dumont, 130 U. S. 352; Kilburn v. Sunderland, 130 U. S. 505. See supra, § 110.

§ 300. 1 Case v. Beauregard, 101 U.S. 688; Durant v. Essex Co., 7 Wall 107. 2 Walden v. Bodley, 14 Pet. 156, 161; Daniell's Ch. Pr. (5th Am. ed.) 994, 995; Rosse v. Rust, 4 J. Ch. (N. Y.) 300.

3 Kendig v. Dean, 97 U. S. 423.

4 Hartell v. Tilgham, 99 U. S. 547; Gaylords v. Kelshaw, 1 Wall. 81; Hollins v Brierfeld C. & T. Co., 150 U. S. 371.

995; M'Neill v. Cahill, 2 Bligh, 228; Woollam v. Hearn, 7 Ves. 211, 222; Rosse v. Rust, 4 J. Ch. (N. Y.) 300. For example, when the bill showed a good ground of equitable relief as to one plaintiff, but failed to show what interest the other had in the subject-matter of the litigation. House v. Mullen, 22 Wall. 42. But see Ogsbury v. La Farge, 2 N. Y. 113; and § 291.

7 House v. Mullen, 22 Wall 42; Texas & P. Ry. Co. v. Interstate Tr. Co., 155 U. S. 585; Fougere v. Jones,

5 Williams v. Jackson, 107 U. S. 478, 66 Fed. R. 316. 484.

8 Sanders v. Devereux (C. C. A.), 60

6 Daniell's Ch. Pr. (2d Am. ed.) 994, Fed. R. 311, 316.

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