Prayer for In Palk Where the Lord Rosslyn, in Beaumont v. Boultbee (h), in which case it amendment involves the in troduction of a new party. Where it appears by the bill that the plaintiff is entitled to relief, though different from that specifically prayed; The instances, however, in which this will be done are confined to those where it appears, from the case made by the bill, that the plaintiff is entitled to relief, although different from that sought by the specific prayer; where the object of the proposed amendment is to make a new case, it will not be permitted. Thus, where a bill was filed for the specific performance of an agreement for a lease to the plaintiff alone, and it was stated, by the defendant's answer, that the agreement had been to let to the plaintiff and another person jointly, but the plaintiff nevertheless replied to the answer, and proceeded to establish a case of letting to himself alone, in which but not to make he failed; Lord Redesdale, upon application being made to him, to let the cause stand over, with liberty to the plaintiff to amend, by adding the other lessee as a party, said that such a proceeding would be extremely improper. It was not like letting a case stand over to add a party against whom a decree in a plain case could be made, but for the purpose of making a new case, which it would be if founded on a new agree (h) 5 Ves. 485; 7 Ves. 599. S. C. stated on this point, arg. in Palk v. Lord Clinton, 12 Ves. 63. Vide etiam, Cook v. Martyn, 2 (i) Ubi supra, 490, n. a new case. Prayer for The Court allows greater latitude in cases of infants; and of informations for charities. Of alternative prayer. Prayer for general relief. ment (j). In that case, his Lordship stated that the ordinary practice, where a party has mistaken his case, and brings the cause to a hearing under such mistake, is to dismiss the bill without prejudice to a new bill; and this practice was adopted by him in Lindsay v. Lynch (k), and is in accordance with the decree of Sir William Grant, in Woollam v. Hearn (1), and has been subsequently followed by Lord Lyndhurst, in Stevens v. Guppy (m). But although the Court is thus strict in requiring that where the plaintiff prays specific relief, it must be such as he is entitled to from the nature of the case made by the bill, yet where infants are concerned this strictness is relaxed; and it has been determined that an infant plaintiff may have a decree upon any matter arising upon the state of his case, though he has not particularly mentioned or insisted upon it, or prayed it by his bill (n). In cases of charities, likewise, the Court will give the proper directions, without any regard to the propriety or impropriety in the prayer of the information (0). It sometimes happens that the plaintiff, or those who advise him, are not certain of his title to the specific relief he wishes to pray for; it is therefore not unusual so to frame the prayer that if one species of relief sought is denied, another may be granted. Bills with a prayer of this description, framed in the alternative, are called bills with a double aspect (p). With respect to the prayer for general relief, although, as has been before stated, it may, in most cases, where it is not preceded by a specification of the particular relief sought, be made the foundation for a prayer at the bar for the particular relief which the plaintiff's case may entitle him; yet there are (j) Deniston v. Little, 2 Sch. & Lef. 11, n. (k) 2 Sch. & Lef. 1. (1) 7 Ves. 222. (m) 3 Russ. 171. (o) Attorney-general v. Jeanes, 1 Atk. 355. Vide ante, 15, and post. Information. (p) Bennet v. Wade, 2 Atk. 325 ; (n) Stapilton v. Stapilton, 1 Atk. Lord Red. 31. vide ante, 102. Prayer for Not always sufficient with out a specific cases in which it appears necessary that some specific relief fendant to a It is a principle of equity, that a person seeking relief in Offer to do equity must himself do what is equitable; it is therefore re- equity. quired, in many cases, that a plaintiff should by his bill offer to do whatever the Court may consider necessary to be done on his part towards making the decree which he seeks just and equitable, with regard to the other parties to the suit. Upon Entitles a dethis principle, where a bill is filed to compel the specific per- decree, without formance of a contract by a defendant, the plaintiff ought by his cross-bill. bill to submit to perform the contract on his part; and it is to be observed that the effect of such submission will be to entitle a defendant to decree, even though the plaintiff should not be able to make out his own title to relief, in the form prayed by his bill (s). balance of account; Upon the same principle, it was formerly required that Offer to pay a bill for an account should contain an offer on the part of the plaintiff to pay the balance, if found against him; though it seems that such an offer is not now considered necessary (t). not now necesAnd so, where a surety brought an action upon an indemnity sary. bond against his principal, to recover monies which he had been compelled to pay on his account, and the principal filed a bill in Equity for an injunction and account of their mutual dealings, suggesting fraud, &c., but without offering to pay what was really due to the defendant, the Court of Exchequer thought, that the want of an offer in the bill to make satisfaction, was fatal to the bill, and allowed a demurrer, which had been put in by the defendant (u). (q) Le Texier v. The Margravine of Anspach, 15 Ves. 159. 164. (s) Stapylton v. Scott, 13 Ves. 425; Fife v. Clayton, ib. 546. VOL. I. (t) Columbian Government v. Rothschild, I Sim. 94. 105. (u) Godbolt v. Watts, 2 Anst. 543. K K Prayer for No bills to set aside securities, &c. Plaintiff must offer to pay defendant what is due. Secus in bankruptcy. Waiver of penalty or forfeiture. It is upon the same ground that Courts of Equity, in cases where a contract is rendered void by a statute, require that a bill to set aside such contract should contain an offer on the part of the plaintiff to pay to the defendant what is justly due to him; so that if a bill be filed, praying that an instrument or security given for an usurious consideration, be delivered up to be cancelled, the only terms upon which a Court of Equity will interfere are those of the plaintiff paying to the defendant what is bona fide due to him; and if the plaintiff does not offer to do so by his bill, the defendant may demur (x). It seems that there is no difference in this respect between a cross-bill and an original bill (y). The course of proceedings in bankruptcy, however, differ from those in Courts of Equity; for the rule in bankruptcy is, that a debt made void by statute, (such as a debt on an usurious contract), is void altogether, and cannot be proved at all; and unless the assignees and creditors voluntarily consent to the payment of what is really due, the Lord Chancellor (or Court of Bankruptcy) has not power to order it; and applications of this nature have frequently been refused (z). It is a rule in Equity, that no person can be compelled to make a discovery which may expose him to a penalty, or to anything in the nature of a forfeiture. As, however, the plaintiff is, in many cases, himself the only person who would benefit by the penalty or forfeiture, he may, if he pleases to waive that benefit, have the discovery he seeks (a). effect of the waiver, in such cases, is to entitle the defendant (in case the plaintiff should proceed upon the discovery which he has elicited by his bill, to enforce the penalty or forfeiture), (a) Mason v. Gardiner, 4 Bro. C. C. 436; S. C. 1 Fonb. T. Eq. 25; Scott v. Nesbit, 2 Bro. C. C. 641; S. C. 2 Cox, 183; Whitmore v. Francis, 8 Price, 616. (y) Mason v. Gardiner, 4 Bro. C. C. 426, Ed. Belt. (s) Ex parte Thompson, 1 Atk 125; Ex parte Skip, 2 Ves. 489; Ex parte Mather, 3 Ves. J. 373; Ex parte Scrivener, 3 V. & B. 14. The It does not appear to have been decided what would be the course of the Court in the case of assignees of a bankrupt being obliged to file a bill in Equity, to set aside a contract on the ground of usury. (a) In Mason v. Lake, 2 Bro. P. C. 495, leave appears to have been given to amend a bill, by waiving penalties and forfeitures after a demurrer, upon that ground allowed. to come to the Court of Equity for an injunction, which he could not do without such an express waiver (b). It is usual to insert this waiver in the prayer of the bill, and if it is omitted the bill will be liable to demurrer. Upon this ground, where an information was filed by the Attorneygeneral to discover copyhold lands, and what timber had been cut down and waste committed, &c., and the defendant demurred, because, although the discovery would have exposed the defendant to a forfeiture of the place wasted and treble damages, the Attorney-general had not waived the forfeitures, the demurrer was allowed (c). And so it has been held that a demurrer will lie to a bill by a reversioner for a discovery of an assignment of a lease without licence, if it does not expressly waive the forfeiture (d). Upon the same principle, if a rector or impropriator, or a vicar file a bill for tithes, he must waive the penalty of the treble value, to which he is entitled by the statute of 2 & 3 Edward VI., otherwise. his bill will be liable to demurrer (e). It seems, however, that if the bill pray an account of the single value of the tithes only, such a prayer will amount to an implied waiver of the treble value, and that an injunction may be granted against suing for the penalty of the treble value, as well upon this implied waiver as upon the most express (f). It is to be observed also, that if the executor or administrator of a parson bring a bill for tithes, he need not offer to accept the single value, as the statute of Edward VI. does not give to such persons a right to the treble value (g). 9. Prayer for Process. To attain all the ends of the bill, it ninthly, and lastly, prays that process may issue, requiring the defendants to appear to, and answer the bill, and abide the determination of the Court on the subject (h). The process thus prayed, in ordinary cases, is a writ of subpoena; and this part of the prayer (b) Lord Uxbridge v. Staveland, 1 Ves. 56. (c) Attorney-general v. Vincent, Bunb. 192. (e) Lord Red. 158; Anon. 1 Vern. 60. (f) Wools v. Walley, 1 Anst.100. (g) Anon. 1 Vern. 60; vide etiam Attorney-general v. Vincent, Bunb. (d) Lord Uxbridge v. Staveland, 192. ubi supra. (h) Lord Red. 37. Prayer for Not necessary when bill prays the single value of tithes. Nor in suits by executors of tithe-owners. Prayer for Subpœna. |