company meant by the terms used, they accepted the contract upon that basis. Further, on the. twenty-ninth of April, after the acceptance of this proposition of settlement, a bond was presented to Mr. Coburn which contained this language: .."In accordance with our letter of date February 27, 1886, aocepting terms of compromise between us." Not satisfied with this language,Mr. Coburn, it! his own hand-writing, interlined these words after the word "compromise," "of all pending litigation," which clearly shows that he understood that the settlement covered all the claims in controversy. ;Finally and chiefly, these actions were pending in a court of equity, and such a court will see that good faith and fair dealing are observed by both parties. After this proposition had been made and accepted, and before anything had been done except handing to counsel some certificates of stock, Coburn & Ewing were clearly notified of what th(:l company intended by this proposition. Much remained to be done; cattle were to be valued, counted, and delivered; it was an easy thing to hand back the c.ertificates of stock. ' ,If they were unwilling to accept the settletneJ;lt when informed what the company understood and int,ended by the proposition, it was their duty to say: the scope of your proposition. If you mean all say, we :did not accept it; we have, never come to any agreement." Inste""d that, after full notice they go on and comply with all the terms of .the proposition. It is too 1l1.te for them now to say: "We did not suppose that the proposition meant all that thecompariy now claims; we thought it meant only a settlement of half the case, and insist upon t'he right to prosecute the other half.'" , I think the parties are entitled to a decree, reciting that upon the evidence presented the court finds that there has' been a full settlement of all the matters in controversy, and ordering that the several bills and cross-bills be dismissed, each party paying its own costs.
& CATTLE Co.
w: D. Mt'88ouri, w:
D. November, 1886.)
EQUITy-SUPPLEMENTAL BILL-WHEN NECESSARY.
Matters transpiring after the tiling of the original bill or cross-bin In equity, changing or affectingthe issues, should be presented by supplemental bill. But where it appears that after the issues were joined the parties entered fnt0ll:n of and a having arisen as to the true meanulg and Intent of that agreement, the partIes appeared before the court. presented a petition for a decree, and submitted all the facts as fully and clearly as this. might have been done under a supplemental bill, no objection
SAHE-COHnOllISE-MATTERS OF FORM-ESTOPPEL.
CEDAR VAI.I,EY LAND It CATTLE CO. V. COBURN.
on account of form being, suggested, and where the court, upon such hear ing, construed the agreement of compromise, and entered decree in accord. ance therewith, neither party will be permitted thereafter to raise a mere question of form. The decree thus rendered cannot be attacked on the ground that there was no supplemental bill filed, nor upon the ground that the proof submitted was in the form of affidavits, and no cross-examination was had, all this having been done without objection.
In Equity. Application by defendants for rehearing. See ante, 584. George W. McCrary and Adams «Field, for the Company. Karnes «Ess and J. G. Waters, for Coburn & Ewing. BREWER, J. Coburn & Ewing petition for a rehearing. They object that, ,the decree as entered shows a final settlement of all matters in controversy, and dismisses the bills and cross-bills, when in fact there was no final settlement, and when under the pleadings no such question ,was in issue or could be determined. The facts are these: After bills and cross-bills had been filed, some compromise was effected. Of that there is no dispute. The Cedar Valley Company filed a petition alleging that all claims in dispute had been settled, and asking a decree accordingly. A hearing was had; affidavits and other testimony presented without objection. Both parties appeared and argued the question. No objection was made to the fotm of the proceeding; the only objections being that in fact the settlement was only partial instead of total, and t,hat the court had no right to inquire into the matter, but could only dismiss the bills and cross-bills. Now it is insisted that if anything had transpired since the filing of the original bills and cross-bills, changing and affecting the issues, such new matter should liave been presented by supplemental bill. I think counsel are right and that such is the true practice. But that is a mere IUatter of form. All the facts were presented as fully and as clearly as though stated in a supplemental bill. No objection on account of form was suggested. Will a party be permitted to test the judgment of the court on the substance of the controversy, and upon defeat then for the first time raise a mere question of form? Nothing can be plainer. When cases of an equitable nature are removed from a state court seldom is the plaintiff's pleading in the full and precise form of a bill in equity. If parties insist, repleading is ordered. But if not, and all the facts are stated, will the court, after decree, set it aside, simply because the pleading does not contain all the formalities of a bill? Such a proceeding would gi ve a bitter irony to the appellation of the court as a court of equity. So here, it is not pretended that all the facts were not stated but only that were not presented through the formalities of a supplemental hill. Coburn & Ewing were cut off from no right, were not prevented from making a full defense. They had every opportunity they asked. Again, it is insisted that affidavits were used, and not depositions; that no cross·examination was had, etc. But all this was by con-
sent, or at least without objection. They offered affidavits themselves, and had all the time they sought for presenting their testimony. They never asked to take depositions, or the privilege of cross-examination, or time to produce more testimony, of which they now say they have an abundance. They made no objection. as to the manner in which the testimony was presented, and I doubt not that if all the testimony had been by oral examination of witnesses in open court such irregularity, if acquiesced in at the time, would have furnished no ground for setting aside the decree based thereon. He who keeps silent when he should speak must keep silent forever thereafter. . Of the merits of the case, I shall add nothing to what I said before, when ordering the decree ; and of the duty of the court to render such a decree upon the application of either party, when there has been in fact a full compromise and settlement,I have no doubt. The application for a correction 0f the decree and for rehearing is denied.
Ma88ack.u8ett8.. December 17, 1886.)
EQUITY-CROSs-BILL-NECESSARY TO COMPLETE DECREE·.
Plaintiff, by his bill in equity. claimed to be the equitable owner of certain notes in the possession of defendant P., and asked that P. be aompelled to defrom liver the Dotes to him, and that defendant S., the maker, be making payment thereon to anyone but plaintiff. Defendant S., in his answer, averred that V. had an interest in the notes, and asked that V. be made a co-defendant, which was granted. V. appeared and answered, setting up his interest.. He asked leave to file a cross-bill, in order that the court might make a cornplete decree. Held, that he should have leave to file his crossbill, as, since the plaintiff sought to restrain defendant S. from makingpaIment to anyone but himself, that was the only way in which defendant V. can obtain full relief.
A cross-bill being auxiliary to the original bill, service may be had on the attorney of record, and it is no objection to it that the party is out ofthejurisdiction of the court.
In Equity. F. A. Brook8, for complainant. F. H. Talbot, for defendant Pike. Gray « Swift, for defendant Swift. W. F. Wharton, for Kemp Van Ee.
COLT, J. Under the rules of equity pleading, I have no doubt of the right of Kemp Van Ee to file a cross-bill in the case. - In the original bill Gregory Q1aims to be the equitable owner of the notes in controversy, and he prays that defendant Pike'may be compelled to surrender the notes, and deliver them to him, and that defendant Swift, the maker,