According to the practice prescribed for the circuit courts by
this Court in equity causes, a bill cannot be dismissed on motion
of the respondents for want of equity after answer and before the
This was a bill filed by Betts against Lewis and wife under the
same circumstances which gave rise to the case of Lewis v.
reported in 16 How. 1. It will be seen by
a reference to that case, page 57 U. S.
H. Betts was one of the legatees in the will of Samuel Betts.
Page 60 U. S. 73
It is not material in the present report to state the nature of
MR. JUSTICE CURTIS delivered the opinion of the Court.
This is an appeal from the decree of the District Court of the
United States for the Northern District of Alabama, having the
powers of a circuit court. The appellant filed his bill in that
court to charge a legacy on property alleged to have come to the
hands of the respondents, and to be chargeable with its payment.
After answers had been filed, and while exceptions to one of the
answers were pending, the respondents moved to dismiss the bill for
want of equity, and the court ordered it to be dismissed. This was
irregular, and the decree must be reversed. It is understood to be
in conformity with the practice of the state courts of Alabama to
entertain such a motion at any stage of the proceedings. But the
equity practice of the courts of the United States is governed by
the rules prescribed by this Court, under the authority conferred
upon it by the act of Congress, McDonald
1 Pet. 620, and is the same in all the
states. And this practice does not sanction the dismissal of the
bill on a motion made while the parties are perfecting the
pleadings. The question whether the bill contains any equity may be
raised by a demurrer. If the defendant answer, this question cannot
be raised until the hearing. Non constat
that a defect may
not be removed before the hearing.
The case must be remanded to the circuit court, and if any
defects exist in the bill capable of being cured by amendments, as
no replication has been filed, it is within the rules of ordinary
practice to allow them to be made.