In the District of New Jersey, where the Federal statutes and equity rules were silent, the State chancery rules were followed. At the October term of 1912, the Supreme Court promulgated eighty-one new rules of equity practice, which, although they retain many of the rules of 1842, omitted the ninetieth rule, which has just been quoted.9a What practice should be followed in cases where the present rules and statutes and the former decisions of the Federal courts are silent has not yet been decided. The prudent practitioner will in such case follow the chancery practice in England as it existed in 1842 or previously.10 The established practice approved by the Supreme Court is still in force except as changed by the new equity rules or the rules of the District Courts.11 It has been said, however, that "It would seem to be the spirit of these new equity rules that they were drawn by the Supreme Court with the intent of leaving the judge free to adjust matters in the interests of substantial justice, as he sees it, unhampered by precedent and by technical definitions and distinctions." 12 Since the alterations in the new rules are based to a large extent upon provisions in the English Rules of 1883, which in their turn were suggested by the New York Code of Procedure, written by David Dudley Field, where the construction of the equity rules of 1912 is doubtful, the decisions of the English courts since 1883 and of the courts of New York since 1848 should be consulted.18 9 The first American edition of Daniell's Chancery Practice and the second American edition of Smith's Practice, both of which were published in 1837, are the authoritative works which best explain the English chancery practice in 1841. Note by Mr. Justice Bradley in Thomson v. Wooster, 114 U. S. 104, 29 L. ed. 105, 107. 9a 226 U. S. 629. 10 Maeder v. Buffalo Bill's Wild West Co., 132 Fed. 280. 11 Individual Drinking Cup Co. v. Union News Co., C. C. A., 250 Fed. 625. 12 Sheeler v. Alexander, 211 Fed. 544. Alien Enemy Act, 40 St. at L. 411. Comp. St. $3115a-3115j. 13 It is the duty of the courts as far as possible to mould procedure so as to meet the exigencies of the case. Davies v. André, 24 Q. B. D. 598, 607. They must not give to the rules a pleader's construction, but a construction consistent with common sense. Edwards v. Lowther, 24 W. R. 434. "Practical rules ought not to be construed according to mere grammar, if that which is an absurdity from a business point of view is thereby produced." Hannay v. Smurthwaite (1893), 2 Q. B. 412, 420, per Esher, M. R. Where one rule is general and another specific, the latter should prevail. Cavendish v. Strutt (1904), 1 Ch. 524, 526, 527, 531; Locke v. White, 33 Ch. D. 308. CHAPTER III. PERSONS WHO MAY BE PLAINTIFFS OR DEFENDANTS IN A SUIT IN EQUITY. § 85. General rule as to persons capable of being plaintiffs. All persons may file a bill in equity in their own right, except alien enemies, infants, idiots, lunatics, married women, foreign corporations who have been deprived of the right by statute,1 and possibly those who by the laws of a State have been declared civilly dead. § 86. States as plaintiffs. A State may sue as plaintiff in any court of the United States which has jurisdiction of the case.1 A State cannot sue in the Supreme Court of the United States to collect a judgment for a penalty recovered in the court of such State against a corporation chartered by another State.2 § 87. Alien enemies as plaintiffs. In the absence of a statute upon the subject, subjects of a country at war with the United States cannot sue in the State or Federal courts before the conclusion of peace, unless they are residents of this country or within the jurisdiction of four allies. The Act of October 6, 1917, § 85. 1 Infra, § 88. It has been held that a company which has not been organized as a corporation in compliance with the statute regulating the subject cannot bring a suit in equity because of the infringement of a patent although it might as a de facto corporation enforce in the courts contracts with parties who had recognized it as having corporate privileges. Am. Ball Bearing Co. v. Adams, 222 Fed. 967, reversed Cardo Co. v. Adams, C. C. A., 231 Fed. 950. Such a de fect, however, will not prevent the corporation from protecting its right to property of which it is in pos session until the judgment of quo 2 Wisconsin v. Pelican Ins. Co., 127 U. S. 265, 32 L. ed. 239. § 87. 1 Wilcox v. Henry, 1 Dall. 69, 1 L. ed. 41; Crawford v. The William Penn, 1 Pet. C. C. 106; Mumford v. Mumford, 1 Gall. 366; against Trading with the Enemy provides: "Nothing in this Act shall be deemed to authorize the prosecution of any suit or action at law or in equity in any court within the United States by an enemy or ally of enemy prior to the end of the war, except as provided in section ten hereof: Provided, however, that an enemy or alien enemy licensed to do business under this Act may prosecute and maintain any such suit or action so far as the same arises solely out of the business transacted with the United States under such license and so long as such license remains in full. force and effect: And provided further, That an enemy or ally of enemy may defend by counsel any suit in equity or action at law which may be brought against him. "Receipt of notice from the President to the effect that he has reasonable ground to believe that any person is an enemy or ally of enemy shall be prima facie defense to any one receiving the same, in any suit or action ot law or in equity brought or maintained, or to any right or set-off or recoupment asserted by, such person and based on failure to complete or perform since the beginning of the war any contract or other obligation.2 "' A resident of the United States, at least if he has declared his intention of becoming a citizen thereof, does not lose his right to sue in the courts of the United States because he is still a subject or a citizen of the enemy. If a complainant become an alien enemy after a suit has been begun, the defense may be interposed by answer. The effect of such a defense is then, however Ex parte Graber, 247 Fed. 882; Clarke v. Morey, 10 Johns. (N. Y.) 69; 2 Kent's Com. 63. Where practically all the stock of a New Jersey corporation was owned by citizens of Germany; but a majority of the directors were residents of the United States; the Supreme Court of New York held that it had right to sue there, pending the war. Fritz Schultz, Jr., Co. v. Fraines & Co., App. Tm. 164 N. Y. Sup. 454, affirming McAvoy, J. As to the right of alien residents to sue, see Speidel v. N. Barstow Co., 243 Fed. 621; Arndt-Ober v. Met. Opera Co., -; 169 N. Y. App. Div. N. Y. Sup. 944, affirming 169 N. Y. Sup. 304; Kranchanake v. Acme Mfg. Co., N. C. 95 S. E. Rep. 851. On the general subject see a series of articles on The War and the Law by John Meriman in The Docket 1919, 1920. 240 St. at L. 416, ch. 106, § 7, subd. (b). Comp. St. § 31151⁄2d. 3 The Oropa, 255 Fed. 132; Plettenberg, Holthaus & Co. v. I. J. Kalmon & Co., 241 Fed. 605; Stumpf v. A. Schreiber Brewing Co., 242 Fed. 80. 4 The Oropa, 255 Fed. 132. 5 Bell v. Chapman, 10 Johns. (N. merely to suspend the cause of action and suit, not to dismiss the bill. If the defendant is an alien enemy; after the commencement of the suit," in the absence of a statute upon the subject, the proper practice ordinarily is for the court to entertain jurisdiction and then to suspend proceedings or otherwise maintain the status quo until, through the restoration of peace or otherwise, adequate presentation of his defense becomes possible. The subject is regulated to a certain extent by the Trading with the Enemy Act.9 The Act against Trading with the Enemy further provides: "Any enemy, or ally of enemy, may institute and prosecute suits in equity against any person other than a licensee under this Act to enjoin infringement of letters patent, trademark, print, label, and copyrights in the United States owned or controlled by said enemy or ally of enemy, in the same ma11ner and to the extent that he would be entitled so to do if the United States was not at war: Provided, That no final judgment or decree shall be entered in favor if such enemy or ally of enemy by any court except after thirty days' notice to the alien property custodian. Such notice shall be in writing and shall be served in the same manner as civil process of Federa 1 § 88. Foreign corporations. The State statutes cannot deprive a foreign corporation from suing in its courts upon a con tract connected with interstate commerce. To what extent a State statute can deny a corporation of another State, not so en Y.), 183; Watts, Watts & Co. v. 6 Hutchinson v. Brock, 11 Mass. 119; Parkinson v. Wentworth, 11 Mass. 26; Levine v. Taylor, 12 Mass. 8; Hamersley v. Lambert, 2 Johns. C. (N. Y.) 508; Ex parte Boussmaker, 13 Ves. 71; Wilcox v. Henry, 1 Dall. 69, 1 L. ed. 41; Story's Eq. $ 54. But see Mumford V. Mumford, 1 Gall. 366. Pl., 7 Samuel M. Kintner and Harry M. Barrett v. Hoch-Frequenz-Maschinen Aktien-Gesellschaft Fur Drahtloss Telegraphie, N. Y, L. J., Jan. 1918. 8 Watts Watts & Co. v. Unione Austriaca, 248 U. S. 9. 9 40 St. at L. 420, $ 10, CompSt. § 3115ee. See infra, § 96k. 10 Act of October 6, 1917, as to Trading with the Enemy, ch. 106 10, 40 St. at L. 420; Comp. St3115ee (f) and (g). See infra, $ 96k. $ 88. 1 International Textbook Cov. Pigg(217 U. S. 91, 112, 54 L. ed678, 687; Buck Stove Co. v. Vickers, 226 U. S. 205, 214, 57 L. ed. gaged, equality of treatment with individual citizens, in respect to the right to sue and defend in its courts, is a doubtful question. It may forbid a corporation of another State from making a contract within its borders which is not connected with interstate commerce, until it has complied with certain reasonable statutory provisions, such as the filing of a copy of its charter and the payment of an annual license fee; and may further direct that every contract made within the State before such conditions have been complied with shall be void; 3 but no State statute can deprive such a corporation of the right to sue in a court of the United States held within such State. And where the State statute provided, "No foreign stock corporation doing business in this state shall maintain any action in this state upon any con tract made by it in this state, unless prior to the making of such contract it shall have procured such certificate"; this did not prevent the recovery upon such contract in the Federal court there held. § 89. Married women as plaintiffs. A married woman originally could only sue when joined with her husband, unless he had deserted her, and was without the realm or civilly dead, when she could sue alone; or unless the suit concerned her separate property, when she was obliged to sue by her next friend. The next friend, however, was chosen by herself; 3 and the husband was then usually made a party defendant, that he might have an opportunity to assert any claim he might have 2 International Textbook Co. v. Pigg, 217 U. S. 91, 112, 54 L. ed. €78, 687. 8 Diamond Glue Co. v. U. S. Glue Co., 187 U. S. 611, 47 L. ed. 328; Loomis v. People's Const. Co., C. C. A., 211 Fed. 453. 4 David Lupton's Sons Co. v. Automobile Club of America, 225 U. S. 489, 56 L. ed. 1177. In Boston Towboat Co. v. John H. Sesuon Co., 199 Fed. 445, it was held that when a suit was brought by such a corporation, which had no statutory right to sue, the court might adjudicate upon a counter-claim inter posed by the defendant and allow it as a set-off against the plaintiff's demand, although it could not render an affirmative judgment in favor of the plaintiff for any excess. 5 N. Y. Consol. Laws, Ch. 23, § 15. 6 David Lupton's Sons Co. v. Automobile Club of America, 225 U. S. 489, 56 L. ed. 1177. $ 89. 1 Story's Eq. Pl., $ 61; Countess of Portland v. Prodgers, 2 Vern. 104. 2 Wake v. Parker, 2 Keen. 70; Story's Eq. Pl., § 63. 3 Story's Eq. Pl., § 61; Gamber v. Atlee, 2 DeG. & Sm. 745. |