Page images

BILL OF HEALTH, in commercial law, is a certificate, properly authenticated, that a certain ship or vessel therein named, comes from a place where no contagious distempers prevail, and that none of the crew at the time of her departure were infected with any such distemper. It is generally found on board of ships coming from the Levant, or from the coast of Barbary, where the plague so frequently prevails. 1 Marsh, on Ins. 408. The bill of health is neces- | sary whenever a ship sails from a suspected port; or when it is required; at the port of destination. Holt's R. 167; 1 Bell's Com. 553, 5th ed. In Scotland the name of bill of health, j has been given to an application made by an imprisoned debtor for relief under the Act of Sederunt. When the want of health of the prisoner requires it, the prisoner is indulged, under proper regulations, with such a degree of liberty as may be necessary to restore him. 2 Bell's Com. 549, 5th ed.

BILL OF INFORMATION, chancery practice. A bill of information is a bill instituted in behalf of the state, or those whose rights are the objects of its care and protection. It is commenced by information exhibited in the name of the attorney general, and differs from other bills little more than in name. If the suit immediately concerns the rights of the state, the information is ^generally exhibited without a relator. If it does not immediately concern those rights, it is conducted at the instance and under the immediate direction of some person whose name is inserted in the information, and is termed the relator; the officers of the state in such or the like cases, are no further concerned than as they are instructed and advised by those whose rights the state is called upon to protect and establish. Blake's Ch. PI. 50; see Harr. Ch. Pr. 151.


BILL OF INTERPLEADER, chancery practice. A bill of interpleader, is one in which the person exhibiting it claims no right in opposition to the rights claimed by the person against whom the bill is exhibited, but prays the decree of the court touching the rights of those persons, for the safety of the person exhibiting the bill. Hinde, 20; Coop. Eq. PI. 43; Mitf. PI. 32. A bill of interpleader may be filed, though the party has not been sued at law, or has been sued by one only of the conflicting claimants, or though the claim of one of the defendants is actionable at law, j>nd the other in equity. 6 Johns. Chan. R. 445. The requisites of a bill of this kind are, 1, it must admit the want of interest in the plaintiff in the subjectmatter of dispute; 2, the plaintiff must annex an affidavit that there is no collusion between him and either of the parties; 3, the bill must contain an offer to bring the money into court, when there is any due; the want of which is a ground of demurrer, unless the money has actually been paid into court; Mitf. Eq. PI. 49; Coop. Eq. PI. 49; Barton, Suit in Eq. 47, note (1); 4, the plaintiff should state his own rights, and thereby negative any interest in the thing in controversy; and also should state the several claims of the opposite parties ; a neglect on this subject is good cause of demurrer. Mitf. Eq. PI. bv Jeremy, 142; 2 Story on Eq. § 821; Story, Eq. PI. § 292; 5, the bill should also show that there are persons in esse, capable of interpleading, and setting up opposite claims. Coop. Eq. PI. 46; 1 Mont. Eq. PL 234; Story, Eq. PI. § 295; Story on Eq. § 821; 1 Ves. 248; 6, the bill should pray that the defendants may set forth their several titles, and may interplead, settle, and adjust their demands between themselves. The bill also generally prays an injunction to restrain the proceedings of the claimants, or either of them, at law; and, in this case, the bill should offer to bring the money into court; and the court will not in general act upon this part of the prayer, unless the money be actually brought into court. 4 Paige's R. 384; 6 John. Ch. R. 445.

BILL OF LADING, contracts, and commercial law, is a memorandum or acknowledgment in writing, signed by the captain or master of a ship or other vessel, that he has received in good order, on board of his ship or vessel, therein named, at the place therein mentioned, certain goods therein specified, which he promises to deliver in like good order, (the dangers of the seas excepted,) at the place therein appointed for the delivery of the same, to the consignee therein named or to his assigns, he or they paying freight for the same. 1 T. R. 745; Bac. Abr. Merchant, (L); Com. Dig. Merchant, (E 8, b,); Abbott on Ship. 216; 1 Marsh, on Ins. 407; Code de Com. art. 281. Or it is the written evidence of a contract for the carriage and delivery of goods sent by sea for a certain freight. Per Lord Loughborough, 1 H. Bl. 359.

A bill of lading ought to contain the name of the consignor; the name of the consignee; the name of the master of the vessel; the name of the vessel; the place of departure and destination; the price of the freight; and in the margin, the marks and numbers of the things shipped. Code de Com. art. 281 ; Jacobsen's Sea Laws.

It is usually made in three originals, or parts. One of them is commonly sent to the consignee on board with the goods; another is sent to him by mail or some other conveyance; and the third is retained by the merchant or shipper. The mas

ter should also take care to have another part for his own use. Abbott on Ship. 217.

The bill of lading is assignable, and the assignee is entitled to the goods, subject, however, to the shipper's right, in some cases, of stoppage in transitu. See In transitu; Abbott on Shipping, 331 ; Bac. Ab. Merchant, (L); 1 Bell's Com. 542, 5thed.

BILL TO MARSHAL ASSETS chanc. practice. A bill to marshal assets is one filed in favour of simple contract creditors, and of legatees, devisees and heirs, but not in favour of next of kin, to prevent specialty creditors from exhausting the personal estate. See Marshalling of

BILL TO MARSHAL SECURITIES, chancery practice. A bill to marshal securities is one which is filed against a party who has two funds by which his debt is secured, by a person having an interest in only one of those funds. As if A has two . mortgages and B has but one, B has a right to throw A upon the security which B cannot touch. 2 Atk. 446; see 8 Ves. 388, 395. This last case contains a luminous exposition in all its bearings.

BILL FOR A NEW TRIAL, is a bill filed in a court of equity praying for an injunction after judgment at law, when there is any fact, which renders it against conscience to execute such judgment, and of which the injured party could not avail himself in a court of law; or, if he could have so availed himself, he was prevented by fraud or accident, unmixed with any fault or negligence of himself or his agents. Mitf. PI. by Jeremy, 131 ; 2 Story, Eq. § 887. Of late years bills of this description are not countenanced. Id.; 1 John. Ch. R. 432; 6 John. Ch. R. 479.

BILL OBLIGATORY, contracts. It is a written obligation by which a debtor acknowledges himself indebted in a certain sum, say one hundred dollars, and for the payment of the debt binds himself in a larger sum, say two hundred dollars. Cro. Car. 515; 2 Ventr. 106; Com. Dig. Obligations, D.

BILL ORIGINAL, chancery practice. An original bill is one, which prays the decree of the court, touching some right claimed by the person exhibiting the bill, in opposition to some right claimed by the person against whom the bill is exhibited. Hinde, 19; Coop. Eq. PI. 43. Original bills always relate to some matter not before litigated in the court by the same persons and standing in the same interests. Mitf. Eq. PI. by Jeremy, 34; Story, Eq. PI. § 16. They may be divided into those which pray relief, and those which do not pray relief. Original bills praying relief are of three kinds: 1. Bills praying the decree or order of the court, touching some right claimed by the party exhibiting the bill, in opposition to some right, real or supposed, claimed by the party against whom the bill is exhibited, or touching some wrong done in violation of the plaintiff's right.—2. Bills of interpleader, (q. v.)—3. Bills of certiorari, (q. v.) Original bills not praying relief are of two kinds: 1. Bills to perpetuate testimony, (q. v.)—2. Bills of discovery, (q. v.)

BILL, AN ORIGINAL, in the nature of a supplemental bill, chancery practice. An original bill in the nature of a supplemental bill, is one filed when the interest of the plaintiff or defendant, suing or defending wholly determines, and the same property becomes vested in another person not claiming under him. Hinde, 71; Blake's Ch. Pr. 3S. The principal difference between this and a supplemental bill, seems to be, that a supplemental bill is applicable to such cases only, where

the same parties or the same interests remain before the court; whereas, an original bill in the nature of a supplemental bill, is properly applicable where new parties, with new interests, arising from events since the institution of the suit, are brought before the court. Coop. Eq. PI. 75; Story, Eq. PI. § 345.

BILL OF PAINS AND PENALTIES. It is a special act of the legislature which inflicts a punishment, less than death, upon persons supposed to be guilty of high offences, such as treason and felony, without any conviction in the ordinary course of judicial proceedings. 2 Wood. Law Lect. 625. It differs from a bill of attainder in this, that the punishment inflicted by the latter is death. The constitution of the United States provides that "no bill of attainder shall be passed." It has been judicially said by the highest tribunal in the land, the supreme court of the United States, that "a bill of attainder may affect the life of an individual, or may confiscate his property, or both." 6 Cranch, R. 138. In the sense of the constitution, then, it seems, that bills of attainder include bills of pains and penalties. Story, Const. $ 1338. Vide Attainder; Bills of attainder.

BILL OF PARCELS, mere. lau,. An account containing in detail the names of the items which compose a parcel or package of goods; it is usually transmitted with the goods to the purchaser, in order that if any mistake have been made, it may be corrected.

BILL OF PARTICULARS, practice, is a detailed statement of a plaintiff's cause of action, or of the defendant's set-off. In all actions in which the plaintiff declares generally, without specifying his cause of action, a judge upon application will order him to give the defendant a bill of the particulars, and in the meantime stay proceedings. 3 John. R. 248. And when the defendant gives notice or pleads a set-oft', he will be required to give a bill of the particulars of his set-off, on failure of which he will be precluded from giving any evidence in support of it at the trial. The object in both cases is to prevent surprise and procure a fair trial. 1 Phil. Ev. 152; 3 Stark. Ev. 1055. The bill of particulars is an account of the items of the demand, and states in what manner they arose. Mete. 6i Perk. Dig. h. t.

BILL TO PERPETUATE TESTIMONY, chancery practice. A bill to perpetuate the testimony of witnesses, is one which prays leave to examine them, and states that the witnesses are old, infirm or sick, or going beyond the jurisdiction of the court, whereby the party is in danger of losing the benefit of their testimony. Hinde, 20. It does not pray for relief. Coop. Eq. PI. M.

In order to maintain such a bill, it is requisite to state on its face all the material facts to support the jurisdiction. It must state, 1, the subjectmatter touching which the plaintiff is desirous of giving evidence, Rep. Temp. Finch, 391; 4 Madd. R. 8, 10 ;—2, it must show that the plaintiff has some interest in the subjectmatter, which may be endangered if the testimony in support of it be lost; and a mere expectancy, however strong, is not sufficient. 6 Ves. 260; 1 Vern. 105; 15 Ves. 136; Mitf. Eq. PI. by Jeremy, 51; Coop. Eq. PI. 52 ;—3, it must state that the defendant has, or pretends to have, or that he claims an interest to contest the title of the plaintiff in the subjectmatter of the proposed testimony, Coop. PI. 56; Story, Eq. PI. § 302 ;— 4, it must exhibit some ground of necessity for perpetuating the evidence. Story, Eq. PI, § 303; Mitf. Eq. PI. by Jeremy, 52, 148 and note (y); Coop. Eq'. Pi. 53;—5, the right of

which the bill is brought to perpetuate the testimony, should be described with reasonable certainty in the bill, so as to point the proper interrogations on both sides to the true merits of the controversy, 1 Vern. 312; Coop. Eq. PI. 56 ;—6, it should pray leave to examine the witnesses touching the matter stated, to the end that their testimony may be preserved and perpetuated, Mitf. PI. 52. A bill to perpetuate testimony differs from a bill to take testimony de bene esse, in this, that the latter is sustainable only when there is a suit already depending, while the former can be maintained only when no present suit can be brought at law by the party seeking the aid of a court to try his right. Story, Eq. PI. § 307. The canonists had a similar rule. According to the canon law, witnesses could be examined before any action was commenced, for fear that their evidence might be lost. x, cap. 5; Boehmer, n, 5; 8 Toull. n. 23.

BILL OF PEACE, chancery practice. A bill of peace is one which is filed when a person has a right which may be controverted by various persons, at different times, and by different actions. In such a case the court will prevent a multiplicity of suits, by directing an issue to determine the right, and ultimately an injunction. 1 Madd. Ch. Pr. 166; 1 Harr. Ch. Pr. 104; Blake's Ch. Pr. 48; 2 Story, Eq. Jur. § 852 to 860; Jeremy on Eq. Jurisd. 343; 2 John. Ch. R. 281; 8 Cranch, R. 426.

There is another class of cases in which a bill of peace is now ordinarily applied; namely, when the plaintiff, after repeated and satisfactory trials, has established his right at law; and still he is in danger of new attempts to controvert it. In order to quiet the possession of the plaintiff, and to suppress future litigation of the right, courts of equity, under such circumstances, will interfere, and grant a perpetual injunction. 3 John. R. 529; 8 Cranch, R. 462; Mit. PI. by Jeremy, 143; 2 John. Ch. R. 281; Ed. on Inj. 356.

BILL OF PROOF. In the mayor's court, London, the claim made by a third person to the subject-matter in dispute between two others in a suit there, is called bill of proof. It is somewhat similar to an intervention, (q. v.) 3 Chit. Comm. Law, 633; 2 Chit. Pr. 492 ; 1 Marsh. R. 233.

BILL QUIA TIMET, chancery practice. A bill quia timet, is one which is filed when a person is entitled to property of a personal nature after another's death, and has reason to apprehend it may be destroyed by the present possessor; or when he is apprehensive of being subjected to a future inconvenience, probable or even possible to happen or be occasioned by the neglect, inadvertence, or culpability of another. Upon a proper case being made out, the court will, in the one case, secure for the use of the party the property, to secure which is the object of the bill, by compelling the person in the possession of it, to guaranty the same by a proper security, entered into for that purpose, against any subsequent disposition or wilful destruction, and in the other, they will quiet the party's apprehension of future inconvenience, by removing the causes which may lead to it. 1 Harr. Ch. Pr. 107; 1 Madd. Ch. Pr. 218; Blake's Ch. Pr. 37, 47; 2 Story, Eq. Jur. § 825 to 851.

BILL OF REVIEW, chancery practice. Bills of review are in the nature of writs of error. They are brought to have decrees of the court reviewed, altered or reversed, and there are two sorts of this species of bill. The first is brought where the decree has been signed and enrolled; and the second, where the decree has not been signed and enrolled. 1 Ch. Cas. 54; 3 P. Wms. 371. The

first of these is called by way of pre-eminence, a bill of review; while the other is distinguished by the appellation of a bill in the nature of a bill of review, or a supplemental bill in the nature of a bill of review. Coop. Eq. PI. *8; 2 Madd. Ch. Pr. 537. A bill of review must be either for error in point of law, 2 Johns, C. R. 488; Coop. Eq. PL 89; or for some new matter of fact, relevant to the case, discovered since publication passed in the cause, and which could not, with reasonable diligence, have been discovered before. 2 Johns. Ch. R. 488; Coop. Eq. PI. 91. See 3 Johns. Ch. R. 1*4.

BILL OF REVIVOR, chancery practice. A bill of revivor is a continuance of the original bill, when by death some party to it has become incapable of prosecuting or defending a suit, or a female plaintiff has by marriage incapacitated herself from suing alone. Mitf. PI. 33, 70; 2 Madd. Ch. Pr. 526. See 3 Johns. Ch. R. 60; Story, Eq. PI. § 354, et seq.

BILL OF REVIVOR AND SUPPLEMENT, chancery practice. A bill of revivor and supplement is a compound of a supplemental bill and bill of revivor, and not only continues the suit, which has abated by the death of the plaintiff, or the like, but supplies any defects in the original bill, arising from subsequent events, so as to entitle the party to relief on the whole merits of his case, 5 Johns. Ch. R. 334; Mitf. PI. 32,74.

BILL IN THE NATURE OF A BILL OF REVIEW, chancery practice. A bill in the nature of a bill of review, is one brought by a person not bound by a decree, praying that the same may be examined and reversed; as where a decree is made against a person who has no interest at all in the matter in dispute, or had not such an interest as is sufficient to render the decree against him binding after some per

« PreviousContinue »