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ALSO THE REFORMS AND CHANGES EFFECTED BY THE UNITED STATES EQUITY RULES, IN FORCE FEBRUARY 1, 1913. By GEORGE FREDERICK RUSH OF THE CHICAGO BAR CHICAGO CALLAGHAN AND COMPANY 1913 Copyright 1913 by CALLAGHAN AND COMPANY PREFACE TO THE SECOND EDITION Besides the essential procedural steps and pleadings in the general state and federal chancery practice, this edition also shows the numerous changes and reforms effected by the New Federal Equity Rules in force Feb- ruary 1, 1913. Where state statutes or court rules are silent, state courts usually follow the federal practice. Thus, the new federal rules will affect the state practice also, and it becomes important for the student and law- yer to understand these new federal rules. This second edition follows the plan of the first. In these two hundred pages of text and forms, are gath- ered the fruits of nearly five hundred decisions. Profit- able as the reading of cases always is, no student can be expected to study and digest so many actual cases in the time given to the subject, even in the best law schools. The reading of cases may well be supplemented by a con- cise text book which explains the successive proceedings and pleadings in a suit, so that what the student may not learn from the reading of cases on procedure, he will find in the text book. Fair and just procedural rules are an indispensable part of the administration of justice. The courts cannot transact business without such rules. Lawyers are sup- posed to be familiar with them. The large number of cases reversed for substantial errors of procedure show that this branch of the law should receive its fair amount of attention and study. It is hoped this book will enable the student and the lawyer to gain a ready knowledge of the essentials. In the choice of subjects, in the new ar- rangement and analyses of subjects, in the new and yet iii iv PREFACE TO THE SECOND EDITION i old classifications, and tables, the author hopes the stu- dent and lawyer will find a logieal, concise, and simple exposition of chancery procedure. For example, the au- thor’s classification of parties is intended to simplify and reconcile all the mumerous and confused terms found in the different cases and rules. The author’s classifica- tion of defenses to actions, new and yet based on accepted classifications, is sufficient also for demurrers, pleas, and answers; the student is thus encouraged to thoroughly master a single classification which will remain of life- long practical service to him in his profession. The ta- bles are intended to aid the reader in reviewing and memorizing the text. The illustrative forms were care- fully selected and formulated with a view to familiarize the student with the chief pleadings used in actual prac- tice. The author would be ungrateful if he did not here ex- press his gratitude for the kind appreciation of the first edition of this book. Gzorce Freperick Rusu. January, 1913. PREFACE TO THE FIRST EDITION This little book grew out of a course of lectures deliv- ered for several years at The John Marshall Law School at Chicago. A limited time spent studying two hundred pages of essentials, yields better results than the same time spent on one thousand pages, through which are scattered the same essentials, with eight hundred pages of minor details. For quick mental grasp, students and lawyers prefer the small elementary treatise; for later study and reference, the larger one. No small text book has been published during the last twenty years, and the practice has modernized in many respects. It, there- fore, seems a fit time to produce this modest book, which it is hoped, may lighten the labors of students and law- yers. Its aim is to treat the main features briefly but not less completely than in other works, large or small, and to discuss such matters of procedure as frequently arise, and need to be better understood. The book is designed for the studious lawyer as well as for the student. It sets forth the general chancery procedure, State and Fed- eral. Modern practice in relation to the master’s office has received attention. Illustrative forms are set forth. to be read in connection with the text. The United States Supreme Court’s equity rules are included for ready reference. State statutes, govern- ing chancery practice, usually provide that matters of practice not therein provided for, shall be ‘‘according to the general usage and practice of courts of equity.’’ Thus the equity rules of the Federal Supreme Court, in whole or in part, have been followed by many of the 'V vi PREFACE TO THE FIRST EDITION states, and have found their way into decisions, State and Federal, largely influencing the usage and practice of the state equity courts. Equity rule 90 of the Supreme Court provides that in cases not covered the then (1842) practice of the High Court of Chancery in England, may furnish a guide so far as may be consistent with local circumstances and conveniences. Therefore, when a question of practice is not settled by the usage and praetice of the state, or of the United States, it becomes important to consult the English edition, 1837, of Daniels’ or Smith’s Chancery Practice, which, together with the general orders made by Lords Cottenham and Langdale (many of which were closely copied in the U. 8S. Equity Rules), are the best authorities on English practice at the time the United States rules were adopted. (Thomson V. Wooster, 114 U.S. 104, 112; Evory v. Candee, 17 Blatchf. 200.) Barbour’s Chancery Practice seems to be based on the old New York chancery rules as well as on Daniel’s work, and thus Barbour sets forth more especially the New York State practice. The writer desires to express his thanks to his friends Walter S. Holden and Edward T. Lee for their valuable suggestions and help. Grorce Freperick Rusu. Cuicaco, April 1, 1909. CONTENTS CHAPTER I NATURE OF EQUITY AND COMMON LAW JURISDICTION ; STARE DECISIS; CASE LAW AND STATUTE LAW [REFERENCES ARE TO SECTIONS ] OLigth OL GGUlig VOUTties 655234 fee nesensidsasens 1 ROWUrIAG: GBS6S (is c5 544 ccbandaens ee satebet anaes 2 Sune CCIGIS: ook aws eon an eaduwdi adders SneewesS 3 Source and basis of common and equity law....... + Nature and scope of statute law.................. 5 AUSOUNE Miptisey elev teregeessnuees eeeea eee 6 Independence of judicial power in the United States 7 Decisions must be based upon reasons............ 8 Case law, or common and equity law.............. 9 No ease law In Murope....s.6.6sosn ceed cea was 10 Equity rescued the common law by broadening the Cockwing Ol SLAVE WeClSts «00s x nonsense ceeesawes ubk Origin of the chancellor....... Speuhaneniaeeeaes 12 No jurisdiction in equity when there is adequate remedy at common IAW... .esss seers scwwesen swe 13 Consequence of suing in the wrong court.......... 14 Auxiliary, concurrent, and exclusive jurisdiction OL CQUIby ci aces ceked ee eee eer saw dere ww nase 15 Equity jurisdiction and pleading distinct and dif- erent from Cowon [AW waswiescseededeseaeees 16 Equity procedure different from that of common IA esau wie lwewetanpeeredeus ees ewes sapere 17 vili CONTENTS CHAPTER II PARTIES [REFERENCES ARE TO SECTIONS] PAROS c6XawlerGegSee Gare seers aan oe Rkerae Rees 18 Parties plain? sinc. 4 seeded sack a eeow eee 19 Parties tetendant: os iseieeans see see es eee wane ee 20 Parties, some though necessary as a rule, can under certain circumstance be dispensed with.......... 21 Three degrees of dispensability of parties........ 22 1. Necessary and indispensable parties 2. Necessary but dispensable parties 3. Unnecessary but proper (nominal or formal) parties Tabular analysis of parties in equity............. 22A Creating interest in a party to oust the jurisdiction 23 Parties consenting to decree............. ec eee 24 Parties virtually though not actually represented De OLNEr DATS ad ieee wunet Gr henry aeewews oxRees 25 Placing party among plaintiffs or among defendants 26 Who are deemed parties to a pending suit.......... 27 Making officer of corporation a party to obtain an- swer of corporation under oath................ 28 Objections as tO Parties. .ascec.acceeGiveesecese 29 Correcting defects as to parties.................. 30 Partners should be named not as a firm but as in- GyIGiG Ie town cpu eer ees peat aueee aeRO ot aid, 31 Diverse citizenship of parties in federal courts must Spear 70m Bil as eee ae aees sem oel oes 32 CHAPTER III PROCESS AND SUMMONS Process, service and return...........-.cc ccc cee es 33 Obtaining jurisdiction over absent defendants in suit im rem in federal courts................... 34 CONTENTS 1x CHAPTER IV APPEARANCE IN COURT [REFERENCES ARE TO SECTIONS] Mode Of appease i COUP icci sas dae bud due ous 35 Voluntary. sppeatates Secercsiebaveentaak gous cee 36 HIM COt (Gb MPEP Ae sre bakes kane oem rence eee 37 Special or limited appearance...............0.05 38 CHAPTER V BILLS IN EQUITY Phe Emer PRAMNSS 3 wank s Fae eee Sha cklauseee 39 Purposes of written pleadings.................05 40 Indefinite pleadings give insufficient notice........ 41 Liberty to amend is no excuse for indefinite pleading 42 Even if not objected to and if followed by decree, in- definite pleadings may be deficient as notice by lis Pendens, OF Of VES GAJUMUCOIA .. 20 ccceccsccccese 43 Pleadings proposed to be under oath.............. 44 Definite pleadings required in equity.............. 45 Buil,. petition, Intormaton, 2.20526 baa gee ees weeees 46 When suit begins as to statute of limitation, or so as to be notice by las pendens.........0.0ccceeeens 47 Bills original and. bills not. onsinal. ..s0cs 5.20002 48 Orisiial Dils cascades c2coee ee ena eeaew eae ake 49 1. Bill of complaint 2. Bill of interpleader 3. Bill of certiorari 4. Bill of discovery 5. Bill to perpetuate testimony, or bill to ex- amine witnesses de bene esse Tabnlar analysis of original Mills. scessveweveoeses 49A Bilis: vot Ori 2ind loisoie hy sees Saekecowawaee eos 50 1. Supplemental bill 2. Cross-bill x CONTENTS [REFERENCES ARE TO SECTIONS] 3. Bill to impeach a decree 4. Bill to suspend a decree 5. Bill to carry a decree into effect 6. Bill of revivor 7. Bill of review Bill Of Gomplamts 2.5 seuss Aiea eew re eee ews eee The nine usual parts of an original bill............ 1. Address to the court 2. Introduction of parties 3. Stating part 4. Confederacy clause 5. Charging part 6. Jurisdiction clause 7. Interrogatory part 8. Prayer for relief 9. Prayer for process SIGNATURE AND VERIFICATION Parts of bill which may be omitted................ CHAPTER VI THE STATING PART OF A BILL Tie Stahine park Of B- Uillyvesicinnyooseraeenussan Every case involves the determining of the facts, the law, and the court’s mandate thereon........ Principal duties of the trial lawyer............. : It may be well to draft the decree before the pill... Only ultimate facts should be pleaded except in the charging part and interrogatories........... Conclusions of law should not be alleged.......... Exhibits made part of bill, should be annexed to bill The allegations are the basis of the proofs and of TiS GObTeO weivedaweag de wan iwee eer eeheeeek Ger waseamawence 99 What is conceded upon argument of demurrer..... 100 Tabular analysis of different grounds of demurrer.100A Ay speaking? demurrer i cexvasaensesi caw ewexreu 101 How demurrer may be waived.............0000006 102 Effect of sustaining a demurrer.................. 103 Effect of overruling a demurrer.................. 104 CHAPTER IX PLEAS Plea Wenned °s:5 an Wirvag 6 ue eee aera weeeee 105 Plea and demurrer compared, function of a plea... 106 WG Si ae ini hak aly yore Ba ae gears peace 107 1. Affirmative pleas 2. Negative pleas 3. Anomalous pleas Pleas supported by answer................ceeee 108 Answer in support should be limited.............. 109 OME ON IRN Gas han once ie ee sewarens 109A Pleas to the jurisdiction must give a better juris- GICMO Maa wl vee pou eas bemauneekeeeaeae seeks 110 Tabular analysis of different grounds of pleas....110A CONTENTS xiii [REFERENCES ARE TO SECTIONS] Separate plea abolished in federal court........... 111 Testing the legal sufficiency of a plea............. 112 Trial of case upon plea and replication............ 113 Pleas: Were: acted ben be a aid arcs uaky al 114 Plea, May: be: waved ic suedwevoncscaseOewalanedaus 115 CHAPTER X DiscLaIMER Dee NeT Greuaresceusemomeshostancee eae tene: 116 CHAPTER XI ANSWER Answer one of the three modes of defense......... 117 Twofold nature of answer, to give discovery and to Ber TOrth, (eremses nai onc. sie oiwa tesa veneer ge 118 If answer does not answer an allegation of the bill, such allegation is deemed to be denied in some jurisdictions, and to be confessed in other juris- digtious esi siaoosrensen vagdeeksekeGaninuacke 119 When an answer is discovery and evidence, and when 1 1s mere pleading... .4 55 eecacevecewswens 120 Answer must meet every allegation of the bill..... 121 Complainant may compel full answer............. 122 Defendant not required to answer certain allega- TOUS leh lne Ge bea Saw pees ee Chae date ns Ra ace 123 Answer should avoid pleading conclusions of law.. 124 Averments of answer and proofs of defendant must COTTOLDOUN. Verna ssi seeeeevewiws ae eenae eee ewe 125 To reserve benefit of demurrer answer must specify the ground of demurrer as a defense............ 126 No affirmative relief upon answer except in federal COUFG. ursaeran ashen testes ee reeueewse ries i dE Testing the legal sufficiency of an answer.......... 128 Hixceptions £6 A ANBWED. cec.cccasaweweensenuee xe 129 xiv CONTENTS [REFERENCES ARE TO SECTIONS] Walving S09W6E s.vccsaswarnveeeseueds sear once 130 Tabular review of defensive pleadings............- 131 CHAPTER XII REPLICATION Dei, sista wecwkses cane e exon ewe enews 132 Effect of omitting replication.............-eeeeee 133 Replication brings cause to issue.......-.--.-- ee 134 Amendments in some states in lieu of special repli- USOME? 6655 re teuwekndieemesn eee eLWs Pewee 435 When filing of replication is waived.............. 136 Replication need not be signed.............00000- 137 CHAPTER XIII AMENDMENTS, SUPPLEMENTAL PLEADINGS, AND INTERROGA- TORIES Nature of amendmentd,....ss.cesewssesuvessnes 138 Amendments should not make different cage....... 139 Amendments to meet new facts in the answer...... 140 When amendments may be made................. 141 Leave of court must be obtained to amend......... 142 Method of amending bill. 22.0.0... cece swe eee nas 143 Amending the answer..............ceeseeeeeeeee 144 New answer to amended bill................-.... 145 A material amendment to bill vacates all default OLUGES ‘astcmuisameuanaieede Sei aasee se eaewmies 146 Amendment of bill to avoid variance in the proofs.. 147 Amendment by supplemental bill.................. 148 Bill of particulars, or better statement, in federal COUNTS. a keene vademin = oa MwiKe ewe Mein © Ooo aR oe 148A CONTENTS XV CHAPTER XIV EVIDENCE IN CHANCERY [REFERENCES ARE TO SECTIONS] Evidence is limited by the pleadings.............. 149 Admissions and denials, by the pleadings, by de- Talis, by stipwlation, vecisents vyeeavracscdanes 150 1. Admissions and denials implied and ex- pressed by the pleadings By the nature of the pleading By the words of the pleading But no admissions permitted against infants or persons non-compos 2. Confessions by default In appearing In filing any pleading But no confession by default in the case of infants or persons non-compos 3. Admissions by express stipulation ako Pea Gly adn ue che tole vee wae taseasuy Gees 151 Preserving evidence of record...............00.. 152 Even rejected testimony should show upon the TOCOUA curnscuhuansess senecaMentceeueneeccie es 153 Forms in which evidence in equity is preserved of ROCOEG. skaacheee neds aeedseeb ae seeoueeeenneeeen 154 1. Judges certificate of evidence 2. Master’s report or certificate of evidence 3. Depositions 4, Affidavits If evidence not preserved recitals in decree may serve the purpose instead..................... 155 Evidence of record not necessary to support pro confesso decrees, or decrees dismissing a bill for Want Of CQUy vou eS otvid idee eceudereceeeyes 156 Exhibits omitted before master under some circum- stances may be offered in court...............6- 157 Xvi CONTENTS [REFERENCES ARE TO SECTIONS] Objections and rulings upon evidence in chancery.. 158 Objections should be made in time to afford correc- TOM oscar Sache ainlaai ne Getta aig svete tlae ales 159 Exceptions as a rule unnecessary upon rulings upon objections to evidence............e eee eee eee 160 To save an objection for review it should be insisted TPO 3 oe Besos SeieG Fewer te eas ers we ula nes 161 Judges and masters should express their rulings DHOW (he C600 nas sciccecced seen dds see aws ewe 162 When objections to master’s rulings on evidence, are brought before the court for review......... 163 CHAPTER XV MOTIONS OF COURSE AND MOTIONS NOT OF COURSE Interlocutory motions or petitions................ 164 Motions of course and motions: not of course...... 165 CHAPTER XVI © DISMISSAL OF BILL Dismissals by plamtitf « is6s.4c4¢5s40edskeses dows 166 Dismissals by defendants ois .c. .cacsan de nvewdsewe 167 Dismissals on court’s own motion................ 168 Dismissal after decree........... cece eee eee e een 169 CHAPTER XVII THE HEARING IN COURT Procedure upon hearing for decree............... 170 Abstract of evidence specially made for the court 171 Petition at hearing for leave to amend or to present HEW OVICGNCE a. iceiiasescedvereedessedagewee ee 172 CHAPTER XVIII DECREES AND DECRETAL ORDERS Counsel prepares the decree................0000- 173 Counsel serves copy upon opposite solicitor....... 174 CONTENTS xvii [REFERENCES ARE TO SECTIONS] Final and interlocutory decrees.............000-- 175 Hite) pieetees sure tda hele oh ese Gece e ene oe 176 Tnterlocntory CeGreé sccexeeccsshawdevess vane bens 177 Decree in part final, in part interlocutory......... 178 Pro confesso or default decree................66- 179 Rule Gave tor detauits .:.cccuseesecssacuesscecces 180 Complainant may take default decree or compel an- SWE aude ead cuven esta ah ete me eseade eet 181 Default decree should find facts as to service...... 182 No defaults or confessions against infants or per- SONS NON-COMPOS v0csed cows Pewee eee EK 183 Hecht Of OLdeY BPO CONFESS vos cc eweeade ye xesesses 184 Power of court to vacate decree pro confesso...... 185 Enforcement of decrees by attachment or seques- CHALOM cwiana banged orks see ean cease Gee Ees 186 CHAPTER XIX EXAMINERS AND SPECIAL COMMISSIONERS PE SamIne epewras soeeens eS eee ee ane ee ees 187. Special commissioners ...... sty Sse tee nese Nees 188 CHAPTER XX MASTERS IN CHANCERY Nature of the olic@.c.c22020% 65. pes eases donee 189 Dues: Of MASE. .a0s1nee ieee ieee eet ee RGewwes 190 Master’s acts are limited by statute, court rules, and the order of reference..........00.e2seeeeeeeee 191 References are subject to the court’s discretion ex- cept cases of accounting..........-..+seereeeeee 192 Tn the federal courts references are exceptional Duty and power of master in federal courts....... 193 Production of books and writings before master.... 194 Production under subpoena duces tecum, or under HOHCE ws 4seciSsrwcnstsaeneewevar grrr esas ixee koe Xvlil CONTENTS [REFERENCES ARE TO SECTIONS] Master’s discretion to order production is limited 196 Master may not permit withdrawal of exhibits from Ne TRCOTO: saseceeeeeeessees ieee ovane = 540% 197 Evidence before the master.............+eeeeeeee 198 Nature of hearing before master...........+-.-+- 199 Notice of hearing before master............+e200: 200 Reference to state account............ee eee eeee oq 201 The master’s report ......... cece ee eee eee tenes 202 Form and sufficiency of report.........-..e+eeeeee 203 The master should find as to each ultimate fact plended: a dunsiuncwns ee eunnss Reba keeevetces 204 Master must draw up his own report............+- 205 But counsel may file briefs requesting particular PNGINGS aes tccecivaedd kaw eww sea ws be sie Wee He 206 Form of brief before master...............00008: 207 Objection that certain findings were omitted....... 208 Method of objecting to master’s report........... 209 Exceptions in court to master’s report............ 210 Court’s ruling upon exceptions should be specific... 211 No exception necessary to master’s conclusions of NAW! cca veiitea a eon taba MEG GN eae eeaae 212 Court may make findings additional to those in mas- Ter’s TOPOL saws ne sas oe SSN sree kala Ne ya 2138 Action of court on report............ eee cee ences 214 Confirmation of master’s report...............-. 215 CHAPTER XXI INJUNCTIONS DenMmGON cover iuecereeerheahe cous ewas eA aes 216 Leniporary Inj} URCHON cp euiedagecneusaeresaunees 217 Perpetial inquMenon, 6 ioe ss cn eawecnee seraekeawws 218 Restraining orders in federal courts.............. 219 Preliminary injunctions and temporary restraining orders in federal courte... .. sess ceeees cause 220 Bill must show existing right and its impending WISIEOM awnert come aes awe en ee Rue eee eee ORR 221 CONTENTS xix CHAPTER XXII RECEIVERS [REFERENCES ARE TO SECTIONS] DEMON 0 iuceciusreiwegadenue kien eso eedeawes 222 DLUUS-OL PEC UCM wis cbceeneseeuaeox eeuearenees 223 Object and grounds of appointment............... 224 No receiver when there is adequate remedy at law.. 225 Receiver’s control over property...............6- 226 Bond ii New at PACs pina Ges oad sie tees ees dsee 227 Bonds to be furnished by receiver and by party ap- PIES savinieddebaeseexkeuyeweoeses ou eeuesesy 228 Court reluctant to appoint receiver for a corpora- UY), cS Hee ie Ore eee eee saree hae. kee 229 Obtain. leave to sue recelyer.......s42anscssee wees 230 CHAPTER XXIII FORMS APPENDIX The new federal equity rules. In force February 1, Fe Sitaneneac ree beekapieteaetemeaereurs ee 209 EQUITY PLEADING AND PRACTICE CHAPTER I Nature of Equity and Common Law Jurisdiction; Stare Decisis; Case Law and Statute Law §1. The ancient rigidity of common law decisions, caused the invention of the equity court. The pronounce- ments, decisions, of the ancient common-law courts be- came so arbitrary, fixed, and narrow, were so strictly adhered to by the ancient common law judges, that a large number of frauds and wrongs could not be ade- quately remedied. The common law judges had come to regard their judicial decisions as establishing the letter of the principles of law, instead of being merely different judicial expressions on principles established outside their decisions, and in the common conscience and cus- toms of the people. To remedy the inflexibility of the then common law, the King established himself as a new court of extraordinary powers, which became known as a court of ‘‘the King’s Conscience,’ a ‘‘Court of ‘‘Eiquity ;’’? which concerned itself more about substance, reason, than about the letter of decisions, more about the true intent and effect of acts and conduct, than about the form of acts, however disguised as lawful. This new court, while respecting the common law precedents, did not feel bound by them to the extent of withholding the justice demanded by the peculiar facts of any case. In time this new court, by its body of decisions, de- veloped its own rules and precedents, and there came to be ‘‘reports’’ of equity cases, as there were ‘‘reports’’ of 1 2 EQUITY PLEADING AND PRACTICE law cases. These equity precedents, in a measure, have also become somewhat fixed; but the historical origin and purpose of this court, tends to prevent its precedents from falling into the ancient rigidity of the common law. ‘Circumstances alter cases,’’ is a proverb of true experi- ence. If decisions are regarded as merely actual in- stances where certain unwritten rules of conduct are applied, if they are regarded as tentative expressions instead of as final expressions, then judicial decisions become an aid, and seldom a hindrance, in the practical administration of justice. §2. Cases illustrate, but do not absolutely make, the common law. Principles, fundamentals, of law (of estab- lished right conduct, unwritten law), are simple, are few, and are quite fixed; but the expressions, the applications of these fundamental rules, namely decisions, will be as numerous as the cases, and being fallible human expres- sions, they can not be entirely final or fixed. Lord Mans- field said: ‘‘The law does not consist of particular cases, but of general principles, which are illustrated and ex- plained by those cases.’’ This means that though we loosely speak of decisions as constituting the common and equity law, it would be more exact to speak of deci- sions as only illustrating, applying, interpreting, that law, which really consists of unwritten principles pre- existing and established in the common conscience and usages of the people. §3. Stare decisis; decisions contain authoritative ex- pressions upon the common and equity law. The same facts, mean the same cases, and ordinarily should mean the same decisions. Respect for prior decisions, pre- vents arbitrariness, and compels lawyers and judges to scrutinize the reasoning of prior similar cases. Prior decisions bring before each judge the light, the reason- ing, and the learning of preceding ages. Certainty, sta- bility, consistency, in correct decisions, are necessary to NATURE OF EQUITY AND COMMON LAW JURISDICTION 3 any reliable and just system of law, and therefore ‘‘a correct decision should stand and be followed.’’ But Judicial expressions are not infallible; and therefore the only fixity there can be in English and American equity and common law decisions, is, that a decision, of a court of last resort, based upon just and sufficient reasons or grounds, should stand as expressing the law to govern like cases, until that decision be modified or enlarged by a later one, to accord with controlling and better rea- sons.! The very method of common and equity law, the lib- erty of the court to base its decision always upon true reason or principle, and not necessarily upon preceding cases or expressions, makes its decisions all the more certain, reliable, worthy, and authoritative. ‘Let a prior correct decision stand and be followed”’ is what is meant by the doctrine known as ‘‘stare decisis:’’ Stare decisis makes the ‘‘case law,’’ in other words ‘‘the common law’’ and ‘‘equity law.’’ Only by ‘‘precedents,’’ is the right kind of certainty and responsibility intro- duced into the administration of our law. ‘‘If a for- mer decision is manifestly unjust, it is not law,’’? and such a prior decision may be departed from by other judges, who usually point out the error in their opinion. Common and equity law, is ‘‘judge-made law,’’ only in the sense that in judicial decisions especially, are to be found the more authoritative discussions and expres- sions by the judges themselves, upon many of the com- monly accepted principles of correct human conduct. The doctrine of stare decisis applies with special force where a line of common Jaw decisions has established cer- tain principles of law as the basic rules of property titles or of contractual obligations. It is evident that a con- trary decision, expressing a contrary principle as being the law, would unsettle titles, and impair the obliga- 1—Blackstone 70; Dodge v. Cole, 2—Blackstone 70; Gillham v. 97 Til. 361. Madison R. R. Co., 49 Ill. 484. 4 EQUITY PLEADING AND PRACTICE tions of contracts, beyond those in controversy before the court, and would thus have harmful retroactive con- sequences unless such contrary decision is one which in- terprets a statute.2* If a common law rule of property is to be overruled it should be done by statute. A stat- ute can not be retroactive. §4. Source and basis of common law. Stat- ing conclusions of law is sometimes necessary for clear pleading ;* and if accompanied by the facts which war- rant them, they do no harm and at the worst must be treated as a surplusage. Courts encourage the pleading of the legal effect of instruments rather than pleading them in words and figures fully. But copies of the in- struments should also be made a part of the bill by reference. §60. Exhibits should be annexed. Ifa bill makes an instrument a part thereof without annexing a copy, or setting forth the contents, it is bad on demurrer.’ The substance of an exhibit should be set forth, even if the 3—Bank v. Levy, 3 Paige, N. ¥Y. 573; Crane v. Shaefer, 140 Ill. App. 606. 647. 4—Koch v. Arnold, 242 Ill, 208. 7—Martin v. MeBryde, 3 Ired. 5—2 Dan. 22. Ch. 531. 6—Allen v. O’Donald, 23 Fed. 46 EQUITY PLEADING AND PRACTICE exhibit is annexed. Exhibits forming part of the bill will aid defective statements in the bill.® §61. The allegations are the foundations of the proofs and of the decree. A party cannot have relief upon a case not stated in his bill. All ultimate facts intended to be proved must be alleged; otherwise evidence cannot be received of the facts.2 Secundum allegata et pro- bata, the decree in the case must correspond with the allegations and the proofs. § 62. All necessary facts should be averred, clearly, and positively. The party seeking the aid of a court of equity, in his bill must aver all the facts neces- sary to entitle him to its aid. His right, title and inter- est, should be stated with accuracy and clearness. The citizenship and residence, by state and county, of com- plainants and defendants, should be distinctly averred, because it is usually one of the grounds of the court’s jurisdiction.’° If an allegation be capable of two mean- ings, the one most unfavorable to the pleader will be adopted. The material allegations of the bill must be clearly and positively averred, and in a traversable form and not ‘‘upon information,’ especially if they are pecu- liarly within the knowledge of the party pleading." § 63. Allegations upon information and belief. If the allegations are not presumptively within the knowledge of the party pleading, they may be pleaded upon infor- mation and belief. An allegation based upon informa- tion should allege complainant’s belief in the truth of the information, and base the statement of facts upon such belief. For example, ‘‘Complainant is informed ard believes, and therefore states the fact to be, that defend- ant on May 7, 1911, did sign, seal and deliver, ”’ ete. 8—Benneson v. Savage, 130 Il. 10—Turner vy, Bank, 4 Dall. 8. 352. 11—MecConnoughy v. Jackson, 9—Crockett v. Lee, 7 Wheat. 101 Calif. 265. 22; Story’s Eq. Pl. See. 28. THE STATING PART OF A BILL 47 § 64. Allegations of time and place. The time and place of each fact need not be stated in equity unless the time or the place is material. At common law, time and place must be alleged with every occurrence of fact, else the pleading would be badinform. ,; §65. Allegation of defendant’s claims. Where the extent and character of defendant’s rights are more within the knowledge of defendant, it is sufficient to al- lege generally that the defendant has or claims to have, some rights in the subject-matter of the suit, leaving it to the defendant to disclose in his answer the nature and extent of such rights. § 66. Bill must cover entire controversy. The bill must cover the whole subject in dispute so as not to expose the defendant to be harassed by another suit when one suit may suffice.’? § 67. Offer to do equity. Complainant must allege in his bill that he has done or is ready to perform, every act necessary to entitle him to the relief he seeks; or he should state a sufficient excuse for its non-performance. It is a maxim of equity that he who seeks equity must do equity. In stating his offer to do equity the pleader should set forth precisely the things he offers to do. §68. Bill should not impute laches. When a bill is filed long after the cause of action accrued, the facts relied upon as excusing the delay must be set forth in the bill; otherwise the bill will impute laches; and may be attacked by demurrer or by plea, or by special state- ments in an answer, mentioning the laches, or the court of its own motion may refuse to consider the case." §69. Basing suit on alternative grounds. The stating part, may base the cause of action upon alternative 12—Purefoy v. Purefoy, 1 Vern. 13—Sullivan v. Railroad, 94 U. 8. 29; 1 Barb. 40. 806. 48 EQUITY PLEADING AND PRACTICE grounds, if the true facts are not known to complainant, so that if one ground fails, complainant may rely upon the other, and these two grounds may be inconsistent with each other.'# §70. Evidential facts and not general charges should be pleaded to allege fraud or usury. Where relief is sought on the ground of fraud or of usury, general charges should be followed by allegations in which the circumstances and facts upon which such charge is founded are fully and specifically stated. Fraud cannot be alleged by mere statements of conclusions or infer- ences, as for instance, the statement that the defendant obtained a certain property by ‘‘fraud and misrepresen- tation.’’ There must be a distinct averment of the facts and circumstances constituting the inference or conclu- sion of fraud, so that the court, if there were no appear- ance, could from the allegation and the proof supporting them, find that the fraud had been committed, and so that the defendant may be able to answer and explain such facts and defend the charge. An allegation of fraud made upon information and belief cannot be sustained, unless the facts upon which the belief is founded are stated in the pleading. §71. Oyer in equity. The practice of allowing oyer is unusual in chancery. Oyer means the right to see, or hear read, some document in court as a part of the pleadings. In federal practice the court rules provide for compelling the production or inspection of documents which are in the control of either party and contain mate- rial evidence. §72. In federal practice, charging part, may be placed in stating part of bill In the federal equity practice, old U.S. Equity Rule 21 permitted the charging part of the 14—Varick v. Smith, 5 Paige Ch. 15—Hamilton v. Downer, 152 IIL Rep. 137. 651. THE STATING PART OF A BILL 49 bill to be omitted, and permitted such charging part of the bill to be incorporated in the stating part of the Dill. That is to say, the old federal rule permitted the com- plainant in the stating part of his bill to anticipate an ex- pected defense, and to allege any matter necessary to explain or avoid such expected defense. There is noth- ing in the new rules to prevent such practice; and in any other jurisdiction it can do no harm to incorporate a charging part in the stating part of the bill. Of course the complainant may, if he chooses, omit to anticipate a de- fense or t6 include a charging part. He may wait until the auswer is filed which states the defense, and then he may meet such new matter of defense by filing an amendment to the bill. In federal practice under new rule 31 any new or affirmative matter in an answer is deemed to be denied by plaintiff without a replication, and without his filing an amendment of his bill to meet such new matter; and the cause is deemed at issue by the filing of the answer. § 73. Multifariousness. The bill must not be multi- farious. A bill is multifarious (1) when it unites several distinct and incongruous matters between the same par- ties; or (2) when it unites several matters, in all of which the complainants on the one side, or the defendants on the other side do not have a joint and common interest.'® A bill to avoid a multiplicity of suits is an exception to the general rule against multifariousness. The rule it- self is no hard and fast rule. It rests somewhat upon the discretion of the court, depending upon considera- tions of convenience to the court, avoidance of a multipli- city of suits, and avoidance of hardship to the parties.” The objection of multifariousness is waived by answer- ing and submitting to trial on the merits.”* \, oni ene 16—Metcalf v. Cady, 90 Mass. 17—-U. S. Eq. Rule 26. 587; Walker v. Powers, 104 U. S. 18—Bird vy. Bird, 218 Tl. 158. 245; Story’s Eq. Pl. Sec. 271; Gage y. Parker, 103 Ill. 528, EB. P.—4 50 EQUITY PLEADING AND PRACTICE §74. Impertinence. A bill must not contain imperti- nent matter. Impertinent matter is that which is wholly irrelevant and unnecessary, and thus tends to make the record improperly voluminous and expensive.” §75. Scandal. A bill should not contain scandalous matter. Scandalous matter is irrelevant or impertinent matter which is also libelous or defamatory in character. In order to be objectionable the matter must be irrele- vant as well as scandalous, for it may often be necessary, in case of fraud, to make allegations very injurious to the character of the parties concerned; ‘‘nothing which is positively relevant to the merits of the cause, however harsh or gross the charge may be, can be correctly treated as scandalous.’’”° The objection that a bill is impertinent or scandalous, is made by exceptions in writing which point out the scandalous matter. The objection is not made by filing a demurrer. These exceptions are filed to the bill, and state what parts are objected to on these grounds.’”! When such objection is made the court refers the matter to a master in chancery for investigation, and if the charge is sustained, impertinent and scandalous matter is ordered to be stricken out and the plaintiff will be re- quired to pay costs. If the scandal is gross and wanton, the counsel who is guilty of it may also be subject to the discipline of the court for a violation of his duty as an officer of the court. Any unnecessary allegation bear- ing cruelly upon the moral character of an individual is scandalous. Neither suitors nor solicitors should be allowed to manifest their personal feelings upon the records of the court.?? In the federal practice the right to except to pleadings 19—Woods v. Morrell, 1 Johns. 21—Stirratt v. Excelsior Mfg. Co., Ch. 103. 44 Fed. Rep. 142. 20—Story’s Eq. Pl. Sec. 269. 22—Coffin v. Cooper, 6 Ves. 514, THE STATING PART OF A BILL 51 for scandal or for impertinence does not obtain, but the court may itself or upon motion, strike out any redun- dant, impertinent or scandalous matter.” 23—U. 8. Eq. Rule 21. CHAPTER VIL Bills not Original § 76. Supplemental bills. A supplemental bill is one brought by the plaintiff in the original suit to introduce some material fact affecting the case which has occurred since the beginning of the suit; or to introduce some new party who has become necessary since the beginning of the suit.t If the original bill shows no ground for relief, the defect cannot be cured by a supplemental bill setting up matters that have arisen since the commence- ment of the suit.? Matters which occurred prior to the filing of the bill and not stated therein should be brought into the suit by amendment to the bill; but matters arising subsequent to the filing of the original bill must be introduced by a supplemental bill. The supplemental bill must be ger- mane to the original bill. In federal practice, upon the application of either party the court may permit him to file a supplemental plead- ing alleging material facts occurring after his former pleading, or of which he was ignorant when it was made.** §77. Bills of revivor. A bill of revivor is the old mode of reviving a suit which otherwise would abate by the death of the plaintiff or the defendant.? In many states a bill to revive on account of death is not necessary, it being provided by statute, that representatives of de- ceased parties may be made parties by suggesting the 1—Wilder v. Keeler, 3 Paige 2a—U. 8. Eq. Rule 34. Ch. 164. 3—Bowie v. Minter, 2 Ala. 406. 2—Hughes v. Carne 135 Il. 519. 52 BILLS NOT ORIGINAL 33 deaths and the names of the representatives of the de- ceased, upon the records of the court, when the ease will proceed as in other cases. In the federal courts, in the event of the death of either party, the court may, in a proper case, upon motion, order the suit to be revived by the substitution of the proper parties.** § 78. Bill of review.*® A bill of review is in the na- ture of a writ of error, and its object. is to procure an examination, or modification, or reversal, of a decree rendered upon a former bill. It lies only after the term of court, at which the final decree was entered, has ex- pired. Until the term has passed, a court of chancery has full power over all the proceedings in the case, and can alter or annul any decree or order and can, on mere motion rehear the case, if it thinks proper to do so. A bill of review must be brought in the same court in which the final decree in the original suit was passed. Leave of court must be obtained before a bill of review can be filed. It lies for error apparent on the record, or for material evidence not known in time for its use at the former trial and not discoverable by reasonable diligence at that time. Itis proper after the term a decree is en- rolled. A bill of review, for error apparent on the face of the record, must be for an error in law, arising out of the facts admitted by the pleadings or recited in the decree itself, as settled, declared, or allowed, by the court. It cannot be sustained upon the ground that the court has decided wrongfully upon a question of fact; but if there has been an erroneous application of law to the facts found by a decree, the court may review, or reverse the decree, upon a bill of review. Errors of law, against which relief can be had by a bill of review, must be such as arise rather from obvious mistake or inadvertence, ap- pearing on the face of the decree, or at least of record, 3a—U. 8. Eq. Rule 45, 3b—Shiras Eq. Prac. 54 EQUITY PLEADING AND PRACTICE than from alleged error in the deliberate judgment of the chancellor on a debatable question of law or equitable right.t| It cannot be brought upon the ground that the former decree was not supported by the evidence,’ and no evidence is admissable as to the facts established by the original decree. The error must appear on the face of the pleadings and decree, for the evidence in the case at large cannot be looked into, to ascertain whether the court misunderstood the facts. That is the proper province of the court of appeal. But, taking the facts to be as they are stated to be on the face of the decree, it must appear that the court has erred in point of law. Upon a bill of review a court will revise, correct, or reverse, its own decree, for an erroneous application of law to the facts found, whenever a court of appeals would do so for the same cause. 35, an, Or sak ay Cals § 79. Bill of review like a petition for rehearing. The only distinction between a petition for a rehearing in chancery, and a bill of review for the same cause, is, that the former is to be invoked before the enrollment of the decree and the adjournment of the term, while the latter is available after the decree and adjournment of the term. In the federal courts if no appeal lies from the decree, then a petition for rehearing may be filed euens the next term after decree. 3. . “a “Ey A Sede 4 ass ee en . % = § 80. Cross-bill. A cross-bill is one brought by a de- fendant against the complainant in the same suit, or against other defendants, or against both, concerning the matters in question in the original bill, for the pur- pose of obtaining discovery, or for affirmative relief. As a rule defendant must answer before filing his cross- bill. Under an original bill the court must simply grant or deny the relief asked for by the plaintiff. As a rule it 4—Caller v. Shields, 2 Stewart & 5—Whiting v. Bank, 13 Pet. 6. Port. 417. BILLS NOT ORIGINAL 5D cannot proceed, after denying relief to the plaintiff, to give any specific relief to the defendant, although the justice of the case might manifestly require it. The main purpose of a cross-bill by defendant is to ask for such relief as the case may show him to be entitled to, unless upon the original bill the court can proceed to give defendant the proper relief.® It is unnecessary to file a cross-bill where (on the failure of a bill for specific performance) it appears that earnest-money has been paid by the defendant; and a decree for the repayment of the earnest-money will be given without the filing of a cross-bill;? also, upon a bill for an acounting, the party against whom the balance is found will be decreed to pay it without a cross-bill.® Where the matter of a cross-bill constitutes a defense, and at the same time entitles defendant to relief beyond the dismissal of the bill, and such relief cannot be had by answer, a cross-bill is proper.® A cross-bill seeks and secures relief to the defendant, beyond a mere successful defense.” In the federal courts, a cross-bill is unnecessary to state a counter-claim or to state a set-off. There the answer must state in short and simple form any counter-claim arising out of the transaction which is the subject-matter of the suit, and the answer may without cross-bill, set forth any set-off or counter-claim against the plaintiff which might be the subject of an independent suit in equity against him, and the court may thereupon grant affirmative relief.°” §81. Cross-bill must be germane. A cross-bill must contain matter germane to the original bill and must not 6—Shields v. Bush, 189 Ill. 534. 9—Paxton v. Stackhouse, 4 Kulp. 7—Adams v. Valentine, 33 Fed. (Pa.) 403. Rep. 1. 9a—Wileox v. Allen, 36 Mich. 160. 8—Acme v. McLure, 41 Ill. App. 9b—U. 8S. Eq. Rule 30. 397. 56 EQUITY PLEADING AND PRACTICE contradict allegations in the answer filed by the same party. § 82. Cross-bill to aver defense arising after bill filed. A defendant, to take advantage of a defense arising pen- dente lite, must assert it in the form of a cross-bill pray- ing a dismissal of the original; this procedure taking the place of a plea puis darrein continuance (a plea filed after issue joined), at common law.’® By strict practice, this course must also be taken where the defense affects only a co-defendant.'! In the federal practice such a defense may be set forth in a supplemental pleading.1™ § 83. Cross-bill unnecessary if answer attains relief. In some states defendants claiming liens, as in a fore- closure suit, need not file cross-bills to have the court determine their rights to share in the surplus proceeds of sale. Such rights may be determined upon answers set- ting them forth,’* whether such liens are junior mort- gage liens, judgment liens, mechanic’s liens, or otherwise. In these jurisdictions defendants are entitled, without filing a cross-bill, to have the court determine the exis- tence and priority of such liens, and to order the premises sold for the benefit of complainant, and the proceeds of sale, after being applied to plaintiff’s debt, to be distrib- uted among defendant lienors according to the priority of their liens. But a cross-bill is necessary, if a junior lienor desires affirmative relief beyond merely sharing in the surplus proceeds of sale, such as a clause in the decree, ordering a sale for his benefit, too, if his debt is not also paid by a short day, as well as the debt of com- plainant. In the federal practice the defendant must in his an- 10—Mills v. Larrence, 186 II. lla—U. 8. Eq. Rule 34. 635. 12—Gouwens v. Gouwens, 22° Il. 11—Metropolis National Bank v. 223; 78 N. E. 597. Sprague, 21 N. J. Eq. 530. BILLS NOT ORIGINAL 57 swer, without cross-bill, set forth any set-off, or any counter-claim, which might be the subject of an indepen- dent suit against the plaintiff, and such answer has the same effect as a cross-suit.!**" § 84. Defendants to cross-bill. A cross-bill requires the same parties defendant as would an original bill for the same purpose. Whether the cross-bill must fail if all necessary parties to it are not already parties to the original suit, or whether new and necessary parties may be brought in on the cross-bill, is a question upon which the practice is not uniform. In some jurisdictions it is held that new parties cannot be introduced by a cross- bill;1* in others the practice of bringing in new parties is provided for by statute.‘* Plaintiff in the original bill should be a necessary defendant in a cross-bill, although it be directed mainly against a co-defendant; because a controversy between defendants cannot be made the ground of a cross-bill, unless its settlement is necessary to a complete decree on the case made by the bill.!® §85. Form of cross-bill. A cross-bill must have all the essential parts of an original bill. It must be so framed that both original and cross causes may be heard together, and a single decree entered.*° Formerly a cross- bill, in addition to having all the parts of an original bill for the same purpose, stated so much of the original bill, as to show its parties, scope and object, and what pro- ceedings had been had thereon.17 But this requirement was due to the fact that a cross-bill in England might be filed in a court other than the one in which the original suit was pending. In the federal courts and in most states a cross-bill must be filed in the same court as the 12a—U. 8. Eq. Rule 30. 15—Weaver v. Alter, 3 Woods, 13—Wright v. Frank, 61 Miss. 152. 32; Shields v. Barrow, 17 Howard 16—MeDougald v. Dougherty, 14 130. Ga. 674. 14—Il. Statutes, Chan. 17—Mitford Eq. Pl. 75. 58 EQUITY PLEADING AND PRACTICE original; and it is necessary to set forth only so much of the original bill and the proceedings thereon as may be necessary to explain the right sought to be brought before the court.® ), Jan Woman LB Y~ 2O% § 86. Pleading to cross-bill. ‘A défendant to both orig- inal and cross-bill must interpose his defense separately to each.1> The modes and grounds of defense are sub- stantially the same as to an original bill. In the federal practice, a cross-claim in an answer is put in issue by a special reply,!® which must be filed with- in ten days after answer filed. § 87. Bills to impeach or suspend a decree, or to carry a decree into effect. Fraud in procuring a decree is the usual ground for impeaching and setting the decree aside, and a bill is proper for the purpose even after the term has passed in which the decree was entered. After hear- ing and decree, certain circumstances, such as newly dis- covered evidence, will justify a bill to suspend a decree. Circumstances requiring further orders of the court to carry a prior decree into effect, may be brought to the at- tention of the court by a bill to carry into effect the prior decree. 18—Neal v. Foster, 34 Fed. 496. 19—U. 8. Eq. Rule 31. 59 BILLS NOT ORIGINAL ] igina, Bills not Or *e10JOq PoIEAODSTp ueeq @ABy 40U pinod eoUeSTITP UTM OTA ‘e0100p 10978 POIOAODSIP 10}}eM MOT JOT *Z ‘MBI Uy JOIIO JO,J *T ‘possed sey ‘osnvo oy} aveyod 03 UOTOUT B IOJ-otUTy ~ 04} 109J3u ‘oo100p B OSIOAGI IO 10918 ‘MOTAOI O} TTIQ ¥ *978qe PINOA 4Ins oYj—L1ed B JO Weep og} se—osnvo eml0s OIF UOT j]NS [VUTAIO OF} GATACI Of TTI “71009 049 JO JepIO JOAN 9G} MOUITA OTqissoduay s} 4] Uos¥er OOS 10} UOT A ‘suosved [vjoods 10,7 ee100p SuTUTBIqGO Uy pneIy 10,T “IOMSUB UB UT SORT OTT} Wi1og Suyq498 Aq pouyeyqo oq Av JoTTOI yous sqinoo [eLopoy UT “4fus ouMVS oT} UT JolTeI oALUTITgE UyBIQO OF 4INs [RUTSJIO Ul quYpUejep Aq Paty TG “POG ST TI BUTSIIO 10438 poIEAOds]p 10 Suyran990 syoRy WOAy Hinged 4yns eG} UT yeJep oUTOS SuyyOeqI09 STII “MOTAOY FO SIT *L “ToAysoy FO [lA ‘9 *yOHO OUT ovIVEp A1Ivd OF, ‘g ‘e01dep B puedsns OF, "p ‘9a100p TOVedMt 04 [Tig *S “STITE-SSOID *B ‘STIG Teyuemetddng ‘T \ “TBUTSTIO 90U SITE CHAPTER VII Demurrers § 88. Defenses and defensive pleadings. There are five general grounds of defense: (1) Defect of jurisdic- tion, (2) Defect as to parties, (3) Defect in the frame or form of the bill, (4) Defect of remedy (suit barred), (5) Defect of merits in the facts of the case. These de- fenses question the competency of the court, of the par- ties, of the bill, of the remedy, of the merits. There are only three methods, or pleadings in defense, by which these defenses can be brought before the court: (1) By demurrer, (2) By plea, (3) By answer. A demurrer, by saying that no proper case is stated in the bill, aims to escape any answer or trial; a plea aims to escape answer by proposing a trial upon the truth of only one disputed question of fact as a defense; an answer, answers every allegation of the bill, and also distinctly sets forth each different ground of defense, and proposes a trial upon all disputed allegations. It remains to discuss these three defensive pleadings in their order. §89. Nature of ademurrer. The function of a plead- ing is to plead facts in a logical manner, to assert facts, to deny facts, to admit facts. Bills, pleas, answers, repli- cations, disclaimers, are typical pleadings. A demurrer is not typical, but is a pleading so-called. Strictly speak- ing, a demurrer is only a written criticism or objection to some other pleading. In equity courts defendant ‘‘de- murs’’ to the bill to have the court determine, whether upon the facts as stated in the bill, plaintiff is entitled 60 61 DEMURRERS Table of Defenses to Actions "ego OT) JO S}OVF OT} UT (44ynbe Jo yUBAs) Ff10TA JO YOVT \ -194yeU OUIeS JOJ Sulpued yyns JeqjoueR £q poiieq Spemey =) +(ayeorpn[pe sez) queuspnf zem10F £q posieq spour0ery “TITRTO JO esvoTer Aq Posaeg ApoTISy *(ons 0} 4091SeU) sayov) fq porieq Apemoy ‘spneaz Jo eyNyeys £q porreq ApouEy ‘uoWEITMIT] Jo oynyeys Aq porseq ApomEey — “WIOJ IO OUILAT UT OS{M1OTIO OATPIFOT *sU0}}0B JO JOPUTOL-STU 10 SSOUSNONBIYINIT "T1Iq 07 OngvuUsys JO UOTssTTMO 10 yooJod "TITG 0} 91AepTYR JO UOTSBTUIO JO qoFo “II14 Jo Javed Arvssedou JO UOTSSTMIO 10 Joo; ‘saed 1odoidmy puv £1vssooeuun Jo qepuyor-sTAL *kyred oqesueds|puy Jo repuyof-uON ‘pons oq 0} 10 ons OF £yyaVdBo JO JUBA ‘goyj1Bd J9AO TOPOTPSTANf Jo How'T +10})8UT yoo[qns 10A0 UOTPIPS]ANL Jo YOwT sjlzepy Jo Aousjodu0ouy spemoy Jo Loucjodmoouy Illa Jo Aoucjoduroouy soT}1eg Jo AouSjedu00Uuy } qanop yo Lousjyodu000T "Q P ‘8 G 62 EQUITY PLEADING AND PRACTICE to any relief in an equity court, or whether defendant is required to answer. § 90. Demurrer raises a question of law. It is always a question of law for the court to decide, whether, and to what extent, a bill is defective; and so it is said a demur- rer always raises a question of law. It is the function of a plea, or of an answer, to raise a question of fact against the allegations in the bill. § 91. Demurrer applies only to bill. In equity courts, unlike common law courts, the word ‘‘demurrer”’ is re- stricted to apply only to a demurrer to a bill. Objections or criticism of the plea as constituting a defense, or of an answer as constituting a defense,? are not filed in writ- ten form at all, and are not called demurrers. If a plea is thought by complainant to be insufficient to constitute a valid defense, he cannot demur; he moves the court ‘‘to set the cause down for argument as to the sufficiency of the plea on file;’’ and if a complainant thinks an answer does not constitute a valid defense, he cannot demur; he moves the court ‘‘to set the cause down for hearing upon the bill and answer.’’ If complainant objects that de- fendant in his answer has given insufficient discovery in answer to the allegations of the bill, he expresses his objection, not by demurrer, but by filing ‘‘exceptions’’ in writing, pointing out what allegations are not an- swered. If either party wishes to object or to criticise the opposite pleading, for containing impertinent or scan- dalous allegations, he does not demur, but files written ‘‘exceptions,’’ which point out such allegations. §92. Demurrer defined. Thus in equity a ‘‘demur- rer’’ can be to the bill only. It may be defined as an objection to the bill, for deficiencies in its form, or in its statements, which deficiencies are apparent from the bill 1—Travers v. Ross, 14 N. J. Eq. 2—Stokes v. Farnsworth, 99 Fed. 254. 836. DEMURRERS 68 itself, even assuming all its statements to be true, but not assuming as true any facts not stated in the bill. In federal equity practice, the so-called ‘‘demurrer’”’ is abolished. But its function is not abolished; there, all demurrable objections to a bill must be presented to the attention of the court in the form of a motion to dismiss the bill, or the objection must be stated as a part of the answer to the bill; and such objection in an answer may be disposed of before final hearing in the discretion of the court. A motion to dismiss may be set for hearing by either party upon five days’ notice.* § 93. Function or use of demurrer. A demurrer, after mentioning either some general or special ground of objection, prays the court to dismiss the demurring de- fendant, and to excuse him from answering the bill. Thus a demurrer always delays a full and general answer to the bill; and if sustained by the court defendant avoids answering. If the defects of stating a cause of action are material, and if the true facts of the controversy are such that a better case cannot be stated, even if amendment be allowed, then a demurrer will end the suit; and the trouble of answering fully, and the expense of a trial or hearing, is thus avoided. Defects which are merely formal or im- material are waived by omitting to demur, and some ma- terial defects are thus waived.» But material defects, such as entire want of jurisdiction over the subject-matter or over the parties, are not waived by omitting to demur. If defendant feels sure his demurrer is based upon material defects, and desires to risk his entire defense upon the demurrer, he ‘‘abides by’’ his demurrer, if overruled upon argument in the court below; he omits then to answer further, and a decree is entered, and later the decision of the demurrer by a higher court upon appeal from this decree, ends the case. 3—2 Dan. 20. 5—Law v. Ware, 238 III. 360; 4—U. 8. Eq. Rule 29. Richards v. Ry. Co., 124 Ill. 516. 64 EQUITY PLEADING AND PRACTICE § 94. Forms of demurrer. As to their forms, demur- rers are classed as general demurrers, special demurrers, and demurrers ore tenus (oral demurrers). § 95. General demurrer. A demurrer will not be good if it merely says that defendant ‘‘demurs to the bill.’’ It must express some ground of demurrer, either general or special. A defendant is said to demur generally when he demurs to the jurisdiction of any equity court over the subject-matter of the bill, or to the lack of substance or merits of the bill, in other words, ‘‘for want of equity’’ in the nature of the subject-matter stated, or in the merits of the facts stated; he is said to demur specially when ‘che demurs for any defects, other than for ‘‘want of equity.’’ , § 96. Special demurrer. A special demurrer, as a rule, must specify and point out the defects or omission.® A demurrer for want of equity, may, but is not required to specify the particular grounds of demurrer, beyond the general statement, that ‘‘there is no equity shown by the bill.’? Thus, a demurrer for non-joinder or mis- joinder of the parties must specify who are the neces- | sary parties; and a demurrer for multifariousness should specify not simply that the bill is multifarious, but that it unites distinct and separate claims in one suit, and the demurrer should further show the inconvenience that will result from so doing.” §96A. Distinction between general and special demur- rers. Where the facts alleged fail substantially to make out a case in equity, the demurrer may be generally stated, to be upon the ground of ‘‘want of equity;’’ but when the demurrer is upon any other ground such as defect of jurisdiction over parties, defect of parties, de- 6—2 Dan. 71. %-—2 Dan. 71, DEMURRERS 65 fect of bill, defect of remedy (such as suit barred by laches, or by statutes of limitations, frauds, usury, etc.), then such grounds of demurrer must be expressly pointed out. Therefore for all dilatory defects, the ground of demurrer must be specially pointed out, as well as for formal defects.® §96B. Oral demurrers, (ore tenus). A defendant may, even at the hearing of arguments on his demurrer, orally assign other grounds of demurrer in addition to, and different from, the grounds mentioned therein. This is called demurring ore tenus, orally, and even if the grounds mentioned in the written demurrer are held invalid, the oral grounds, if held valid, will support the written demurrer filed, and sustain the same. A defend- ant may assign as many causes of demurrer as he pleases, but a demurrer ore tenus, must be co-extensive with the demurrer on file. That is, if the demurrer filed is to a part of the bill, an ore tenus ground of demurrer must also be to that same part, and cannot go to the whole bill.?° § 97. Advisable to file general and special demurrer. The safe practice for one who demurs, is always to demur generally, that is ‘‘for want of equity,’’ and also again in the same pleading to demur specially, upon a specified ground, because then at the hearing upon such demurrer, still other grounds of demurrer, to the whole or part of the bill, can be assigned ore tenus, orally. If only a spe- cial demurrer, to a part of the bill were used, an ore tenus ground would be limited to apply to the same part. Even in the federal practice, where demurrers must be made in the form of a motion to dismiss, or be set forth in an answer, fairness requires that the grounds for the demurrer be set forth as notice to the adverse party. 8—Borders v. Murphy, 78 Ill. 81. 10—2 Dan. 71, 72. 9—Day v. Cole, 56 Mich. 295. E. P.—5 66 EQUITY PLEADING AND PRACTICE § 98. Grounds of demurrer. As to their grounds, de- murrers to the relief are classed as: 1. Demurrers as to the jurisdiction of the court, over the subject matter, or over the parties. 2. Demurrers as to the parties, for nonjoinder, mis- joinder or want of capacity. 3. Demurrers as to the frame or form of the bill, such as for multifariousness, omission of parts of the bill, omission of affidavit, omission of signature, etc. 4. Demurrer as to remedy, or in bar of suit, by Statute of Limitation, Statute of Fraud, Res adjudicata, other suit pending, Laches, Release. 5. Demurrer as to the merits; want of equity in the case stated. §99. General grounds easily suggest the particular grounds. The grounds of demurrer are easily suggested from the author’s classification of defenses to actions. The table on the following page should be mastered by all students of pleading. § 100. What is conceded upon demurrer. In hearing a demurrer, the argument is strictly confined to the case as stated in the bill; and all matters well pleaded in the bill are deemed to be true.4! But where a bill avers any fact falsely and contrary to what the court is presumed to know as matter of judicial notice, such averment, upon arguing a demurrer to the bill, is considered a nullity? And a demurrer does not concede any matter of law which may be suggested in the bill, or may be inferred from the facts stated in the bill;4? nor any fact that is not specifically alleged;!4 nor allegations ‘‘that complainant is informed and believes that’”® but 11—East India Co. v. Hinchman, 14—Am. Loan & Trust Co. v. R. 1 Vesey, Jr. 289. R. Co., 157 Ill. 641. 12—2 Dan. 23, 15—Murphy v. Murphy, 189 Ill. 13—Dillon v. Barnard, 21 Wall. 3860. 430. 67 DEMURRERS Different Grounds of Demurrer *sy00J0p quoueul -1ed 10g ‘3 “BTIP 10d 'T ‘&yeued Io ernqyoyIOF ‘uoTNdesoI1d *£1OAOTDTICL [BUFUILIO 07 peo] LEU AIOAOOSTP 92} SESOTOSIP [11 0} JoLINWIEC "gs “ABT IO 44{Nbo ‘y1N0D LUB UT JOTIOI SyJIOUL WOT WOTow JO esnvd OU sesoposTP 11. 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"TIIq JO sjued AressedeU 10Y4O 8})T10 JO ‘oyjs—nber ueqA Sj 0} Jer WyVO Jepun uoWeoYTIEA syyUIO {sso00Ad 10J JaAVId sjJUIO ‘TesUNOD Jo eAN{eUDTS S}FMO TAS} THQ JO WILOF IO -Inwed *L *(syyus Jo AyoyTd YIN) ‘petesod you 109;BUT joafqns eToys Sseso[ds|p TIId "& *BSOUSNOTIVBI}} [NUL SOSO[ISIP TTI *T ‘syed AressedouunN JO JopuyOlsyUt SOSOTISIP IIIA "F *Aqred Aressevou JO Jepuyof-uou sasoyposip Ila *S ‘yuetayujodds 4ynoqyA JOJVIYs}UTTApY sv Buyjoe ouo se ons ‘gons quBUTeIdmIOD GoTqA Uy JoJOBILYO 0} JUOTTJUTOddY JO ‘yooTEp JO ‘HIeT sesoyosIp [Td "S ‘IOATOOOI IO 9eysu1y £q 10 KOydnayueq uy 9eqsnsy £q woyeueseider ynonjyyA ‘dyqysieateoor 10 ‘dyqseoysnaz ‘Soydnaryurq yo uosver Aq 10 $10;8A1osu0d ‘puSTIJ yxou ‘uRIpIeNns ‘pueqsny Aq UOTVJUESGIdOI yNOy{A ‘KovUNT 10 LIOTPT ‘KoURzJUT '9.1N}.10A00 JO UOSBeI &q Ons OFQUBUTETAMIOD FO ABTTIQusIp Teuossed sesoTOSIP ITA “TL ‘qanod £4jnboe sty} JO UOMOTpsTaNl [eyIOF}I10} 94} UT “WJ you se 4y1ed oefqesuedss;puy UB JO dyysuez]z]o 10 QOUOpISeI ‘OTJOJMIOP B SESOTOSTP ITT *S “‘qINOD USTO10,7 BUT Sqanap A4[BaTWApyY "Ss *Q UB UT 'y1no0p9 s94dn1yHURg *g "Q UB UT > {g1n09 eyeqoig B UT {j1n0D AMET UOTAMOD 8B UT JOT[9I IOJ O8BO B SESOTOS]P ynq 4yIN09 AyINbE ue JO UOIFPETAM, OG} UTA JOU JOO OJ 10938UI-yoofqns JO esBd B SOsOTOSIP INIA “TL v ‘emBly JO qoJod ‘Ss ‘sored JO yooJod *g *mO},0Tp “Ban JO yooJod 'T 68 EQUITY PLEADING AND PRACTICE positive allegations ‘‘that complainant is informed, and believes, and therefore states the fact to be that’’—, are conceded.}® §101. A speaking demurrer. A demurrer cannot in- voke in its support any fact whatever which is not contained in the bill,” except those facts of which the court takes judicial notice.1% When the demurrer de- pends upon some fact not appearing in the bill, it is called a speaking demurrer, and will be overruled. It is the function of a plea or answer to expressly set forth defensive facts not appearing in the bill. A demurrer cannot do so, either expressly or in argument. § 102. How demurrer may be waived. A defendant who does not bring his demurrer to a hearing thereby waives it.1® A defendant who files his plea, or answer, after his demurrer has been overruled (unless the an- swer specifically mentions a ground of demurrer and reserves the demurrer as a defense), thereby waives the right to assign the overruling of his demurrer as error, and thus he waives the demurrer, unless the bill fails to set forth a cause of action, or unless the case presents jurisdictional defects.” § 103. Effect of sustaining a demurrer. A demurrer to the whole bill, if sustained, results in a decree dis- missing the bill, unless the court can see that the defects of the bill can be cured by amendment, in which case leave to amend will be given. If leave to amend is not requested the bill is dismissed. §104. Effect of overruling a demurrer. If a demurrer is overruled, the defendant who demurred is ruled to 16—Bromley Carpet Co. v. Field, 19—Long y. Fox, 100 Il. 43. 88 Ill. App. 228. 20-—-Baumgartner v. Brandt, 207 17—Story, Sec. 448, Ill. 345; Cline v. Cline, 204 Ml. 130. 18—2 Dan. 23-72. DEMURRERS 69 answer. If he does not answer, the bill is taken as con- fessed. An order overruling a demurrer is not a final order; it merely determines there is sufficient equity stated in the bill to require an answer. CHAPTER IX. Pleas § 105. Plea defined. A plea is a short pleading of a single defense, instead of an answer with full discovery besides defenses. A plea either affirms against the bill, a single matter of fact as a defense, or at denies a single essential matter of fact alleged in the bill, or it both affirms a defense anticipated by the bill and denies the statements in the bill impeaching such expected defense. The defense raised by a plea, may be a dilatory defense, which abates, defeats, that particular court action only; or it may be a defense in bar of any suit, or one which upon the merits ends the controversy for all time. Thus, a plea always delays, and if successful, avoids, a full answer to the bill. §106. Plea and demurrer compared; function of a plea. A demurrer asserts that the facts in the bill even if true, as stated, do not constitute a correct, lawful case. A plea asserts that the true facts, in at least one respect, are not fairly stated in the bill. The main pur- pose of a plea in chancery, is to save the delay and ex- pense of going into the case at large when some defensive ground of fact exists, which when proved to the court, will either abate the suit, or bar recovery therein. It saves defendant from the difficult, tedious, and self- betraying answer in chancery. Unlike an answer, a plea admits all allegations in the bill which are not expressly denied in the plea.! 1—McCloskey v. Barr, 38 Fed. 165, 70 PLEAS 71 § 107. Forms of pleas. According to manner and form of statement, pleas are denominated as: (1) Pure or Arrirmative Pueas, which affirm or allege as a single ground of defense, new matters of fact by way of confession and avoidance. For ex- ample, a plea of the facts showing that plaintiff has given a release of the claim.? (2) NoecativE Puzas, which negative (deny), a single essential allegation of fact appearing in the bill.? For example, a plea denying that complainant ‘‘resided in said state one year before filing his bill of complaint’’ (where such residence is alleged in the bill, and is re- quired by statute); or a plea denying that complainant is the legal or equitable owner of the real estate as stated in the bill, and which is the subject-matter of the suit; or a plea denying any other fact necessary to establish complainant’s case. (3) Anomatous Puszas, (affirmative and negative pleas), which affirm the defense anticipated by the bill, and negative the allegations in the bill which would vitiate the expected defense. For example, where the bill charges that the expected defense of the statute of limitations is avoided by the defendant’s renewed promise to pay; then if defendant wishes to file a plea making this expected defense, his plea must nevertheless affirmatively set forth the statute of limitations, and expressly deny making any new prom- ise to pay, at any time since the time the statute became a bar to the claim. Because, expressly asserting the statute, and expressly denying the alleged new promise to pay, are both necessary to make a single complete defense to such allegations in a bill; and because, unlike an answer, a plea is deemed to admit every allegation of 2—Story Eq. Pl. 660. 3—2 Daniell Ch. Pr. 98. 72 EQUITY PLEADING AND PRACTICE the bill unless expressly denied in the plea.t Defenses such as laches, statute of limitations, and statute of frauds, are in some jurisdictions, deemed to be waived unless the pleader expressly sets them forth in his de- murrer, or in his plea, or in his answer.® Moreover, in anomalous pleas, the affirming of the expected defense, and the denial of the statements in the bill impeaching that defense, should both appear in two places, (1) among the general averments, constituting the formal body of the plea itself, and (2) as a part of an ‘‘answer in support’’ of such a plea. Charges in a bill impeaching an anticipated defense always compel the defendant to file with a plea a ‘‘supporting answer’’ giv- ing discovery in answer to each and all evidential facts and statements in the bill impeaching the good faith and truth of such expected defense; thus it is seen that an anomalous plea is also always ‘‘a plea supported by an- swer.’’ Though contained in a single pleading, the body of the plea, and the accompanying answer are distinct and separate parts ;and the body of an anomalous plea, should both affirm the defense and deny the impeaching charges, independently of the denials to the bill also particularly set forth in the accompanying supporting answer.® § 108. Pleas supported by answer. If defendant files a good plea, he always saves himself from a general and full answer to the bill. But sometimes even a plea is required to include a short answer. If a plea sets up a defensive ground of fact, regarding which the bill has charged particular evidential facts and circumstances, as avoiding and impeaching such expected defense, then the plea, whether an affirmative plea, or a negative plea, or an anomalous plea, must also be accompanied by so ' 4-—McCloskey v. Barr, 38 Fed. | 6—Allen v. Randolph, 4 Johns. 165, 171. Ch. N.Y. 693. 5—Fletcher Eq. Pl. Sec. 275. PLEAS 73 much of an answer to the bill, as will give discovery in answer to these impeaching evidential facts and cir- cumstances in the bill bearing on the defense pleaded. § 109. Answer in support carefully limited. Care must be taken that such answer in support of a plea does not answer the bill beyond the defensive ground of facts covered by the plea, nor beyond matters strictly responsive to the allegations, charges, or interrogatories, on that subject in the bill; because in some states an un- necessary answer, with or after a plea, overrules, waives, a plea. § 109A. Grounds of pleas. As to their grounds, pleas are classed as: 1. Pleas to the jurisdiction of the court, over the sub- ject matter, or over the parties. 2. Pleas as to the parties, for non-joinder, misjoinder, or want of capacity. 3. Pleas in bar of the remedy, by statute of limitation, statute of frauds, res adjudicata, another suit pending, laches, release. 4. Pleas to the merits, or facts showing the true mer- its are not as stated in the bill and are in favor of defend- ant. These general grounds easily suggest themselves from the author’s clssification of defenses to actions. The first two classes are also known as pleas dilatory or in abate- ment, and the last two, as pleas in bar or to the merits. The table on the following page should be memorized to obtain a ready comprehension of pleas. §110. Pleas to jurisdiction must give better jurisdic- tion. Pleas to the jurisdiction must show what court has proper jurisdiction to give acomplete remedy.” Pleas as to defects as to parties, must point out the proper parties. 7—2 Dan. 139. EQUITY PLEADING AND PRACTICE 74 Different Grounds of Pleas “18q Uy} Jo £10;du10 led SBeld ‘g ‘quetTIe}eqe uy Jo £1038 Td $seeld ‘T 3 “(BET ‘ued Z) AB] JO £4]Nbe ‘44109 AUP UT WOT{OR JO osned LUB O4N4T4SU0D JOU OP s8}f10T ONL} 1}OQ) UOdN pure ‘pesoT[e VSO} WOIT JUSTO IP Or’ SOVI ON} 4VqY SuUTMOYS 10 *Z syqst1 8.4ue -UTeTAUIOD JO Gd}JOU FNOTITA UOL}VIEp{sUOd e[qeNTvA B JOJ JoseqoInd v s} yuepuoje ‘TL :SuTAogs 8408] Mou 10 sTeuEd “prvae pur UONeayyque Aq eg ‘9 *(SUIQUNODOY IOF [11 ysulese) popyjos yUNODOR JO poyzeys yUNODOR Aq IB_ “G ‘esvojor Aq leg "b ‘soqory Aq 1eg ‘gs ‘mOTDIpSTAN oules UT Suypued yIns 1sqjoue ‘AojdnayUeqg UT osieyos}p IO osel0ep 1O ‘4yueMISpN{ AOIAd Jo p1OdeI yanod fq Avg *S *£1NSN JO 04N4BIS ‘puvIT JO oynyeyg ‘suoyETUIT Jo eynye4g 4q 4Ius Jo 1eg ‘T *SUTMOYS 8]0BJ AOU 10 s[ejUEg, “syred AIessooouunN JO LOpUyOISTIA "F *£41¥d £1ussed0U JO JepUujOlUON *g *(e[durexe IO ‘IOZBIYSTUTTApe Ue 4OU BT) Peselre AYJovdvo [BpOTO O44 ssessOd you sa0p 10 ‘pesel[e UOsIed oy} 4OU JULPUDZOg °Z “Ayyordeo yeporgo o} yuemujodde-uou 10 ‘foydniyueg pesreyqos|pun ‘sovuny zo £d0{pt ‘Aouvyuy ‘91nj1eA00 Jo UOSBed £q ONS OF JUBUTBIdMIO? Jo AqJOBdeoUyT JO AAITIQeS}p [euosIed OYL ‘T :3uUyMOYsS JOB] MOU JO syeyUSd *mOTOIpstIne Jo 41N09 oq} Sysno peyeys drysuez}y{o ons) og} pus ‘IITG eq} Uy pezeys se OU s} SeTJIed Ot] JO djqsuezy19 Io ‘eouepysed ‘e[JO]WMOp oN FUL *S ‘90 ‘ganoo LoydnryURq TelOpey B ‘4.1N09 eeqord B ‘yzN0d APT UOTIUIOD B fq 4nq sJIN0D AyINbo fq pozZTUsSOdeI 4OU EU Ss} poqeys 88d ON} FBUL ‘TL :BupAoYs syoBy Mou JO s[ejUEd “S}1IOTT OU} 04 SB0ld “F “Poul 0} 0} ‘req Uy} SBeld "8 *soTqzed ou} OL 'S “TOROTD “syanf 04} OL ‘TE L sva1d PLEAS "5 §111. In federal courts the separate plea is abolished. In the federal practice, the separate pleading known as a plea, is abolished, and every defense heretofore presentable by plea must be made in the answer, and may be separately heard and disposed of before the trial of the principal case in the discretion of the court.® § 112. Testing the legal sufficiency of a plea. A plea in equity is not spoken of as being demurrable, the word, demurrer being limited to apply to demurrers to bills. If complainant thinks a plea filed, does not set forth a good defense in equity, he does not ‘‘demur;’’ he moves the court to ‘‘set the cause down for hearing, as to the sufficiency of the plea.’’ When thus set down for argu- ment, the truth of the facts stated in the plea is conceded for the time being. If the plea is adjudged good, the plaintiff must then take issue upon the plea by filing a replication to it. If the plea is adjudged fta’!, the defend- ant will then still be allowed to file an answer to the bill.® In the federal practice, the logical sufficiency of a plea, as set forth in an answer, may be tested by a motion to strike out.?° § 113. Trial of case upon plea and replication. If the plaintiff takes issue on a plea, by filing a replication to it, he thereby admits its sufficiency as a pleading to his bill; and the only question then open is the truth of the facts in the plea, which will be determined by trial and evidence.!! Upon trial and evidence, the decision of the court depends upon the nature and extent of the issues and defense made by the plea; as a rule the plea ends the suit. In the federal practice the function and effect of a plea for many years has been obscured if not destroyed by the federal courts’ interpretation of old rules 33 and 34. 8—U. 8. Eq. Rule 29. 10—U. 8. Eq. Rule 33. 9—Rhode Island v. Mass., 14 11—Bean v. Clark, 30 Fed. Rep. Peters 210. 225. 76 : EQUITY PLEADING AND PRACTICE Upon trial and evidence upon a plea, if the finding was for the defendant, it availed him; but if the finding was for the plaintiff, the only effect in any event was that de- fendant must be allowed to answer over.’? Thus the plea in the federal courts was a sure instrument of delay for the defendant and was of no avail to plaintiff. It may be for this reason that new federal rule 29 abolishes the sep- arate plea and makes it presentable only by answer. The chief function of a plea is to avoid the long and difficult answer as well as the long trial thereon, by presenting instead of an answer, a single complete defense of fact by way of a separate plea and trial thereon. When the answer asserts a set-off or counterclaim the replication should be not a general replication, but a special one to meet the facts of the answer. § 135. Amendments in some states take the place of special replications. By statute in some jurisdictions the replication ‘‘must be general, but with a like ad- vantage as if special.’? Thus special replications, admit- ting part of the answer and denying the rest, or setting up new facts in reply to new facts in the answer—have become almost obsolete in such jurisdictions, such new facts, in pleading to an answer, being set up in the form of an amendment to the bill (by adding a charging part to the bill), meeting and avoiding the defenses presented by the answer. Of course no such amendment is neces- sary if such defenses already have been anticipated and avoided by a charging part, or in the stating part of the original bill. § 136. When filing of replication is waived. If de- fendant treats the cause as if at issue, and joins with complainant in taking evidence, without objection, they will thereby waive the filing of replication. § 137. Replication need not be signed. Unless required by statute, replications need not be signed by counsel nor be verified by oath. 4—U. S. Eq. Rule 31. 5—U. 8. Eq. Rule 56. CHAPTER XIII Amendments, Supplemental Pleadings, and Interrogatories § 138. Nature of amendments. Amendments may be made to correct formal defects, mistakes, defective statements; also to amplify allegations, and to add neces- sary allegations; also to add a new claim, if consistent with the pleading amended; also to make new parties, or to transpose parties from one side to the other. In federal practice the court may at any time, in further- ance of justice, upon such terms as may be just, permit any process, proceeding, pleading, or record, to be amended, or material supplemental matter to be set forth in an amended or supplemental pleading. § 139. Amendment should not make a different case. An amended bill should not be on a ground repugnant to the original bill, nor present an essentially different, or new case; but a federal court must disregard even such an error if the substantial rights of the parties are not affected thereby. § 140. Amendments to meet new facts in the answer. Filing a replication is a sufficient denial of the answer; but if complainant desires to confess and avoid new defensive facts in the answer, the bill should be amended by adding a ‘‘charging part,’’ charging that such defense ‘‘will be pretended,’’ and charging the facts which avoid, invalidate, the defensive facts.2, In federal practice any 1—U. 8S. Eq. Rule 19. la—U. 8. Eq. Rule 19. 2—Connorton v. Millar, 41 Mich. 608; Harding v. Durand, 188 Ill. 515, 88 AMENDMENTS : 89 new or affirmative matter in an answer is deemed to be put in issue and denied by the plaintiff without his filing any replication or amended pleading.?’ In old chancery prac- tice special replications were used to meet new defensive facts in the answer, but in most jurisdictions special replications are abolished. Plaintiff may otherwise amend his bill, so his case may be consistent with the new facts in an answer, or so that he may take advantage of an admission made in the answer. § 141. When amendments may be made. Amendments of formal defects, are freely permitted at any stage, but those substantially changing the case are rarely allowed in later stages. An amendment otherwise proper may be refused for delay in applying for leave therefor. Before answer, amendments to a bill are liberally allowed; also before replication.* Upon demurrer sus- tained, plaintiff is in most cases allowed to amend his bill. Amendments after answer, rest in the discretion of the conrt.2 After pleading filed by defendant consent of court or defendant must be obtained to amend.® After evidence has been taken, and before decree, the bill may be amended to conform to the proofs taken, where the parties have treated the matter of the amendment as if in issue;* but not otherwise, except under special cir- cumstances. At the final hearing, amendments are al- lowed when necessary for justice. After decree, amend- ments are seldom permitted, and never if the effect would be to present a new claim, or present a materially differ- ent case. Amendments may be permitted after decree to correct a clerical error. 3—U. S. Eq. Rule 31. 8—Bowen v. Idley, 6 Paige N. Y. 4—U. 8. Eq. Rule 29. 46. 5—Craig v. People, 47 Ill. 487. 9—Koch v. Roth, 150 Ill. 212. 6—U. 8. Eq. Rule 28. 7—Gordon v. Reynolds, 114 IU. 123. 90 EQUITY PLEADING AND PRACTICE § 142. Leave of court must be obtained to amend. Al- lowing any amendment, rests in the discretion of the court, and leave to amend must be obtained by an order of court, in the absence of a statute or rule of court to the contrary. The substance of the proposed amendment should be submitted with the application for leave, and the facts making the amendment necessary should be stated.1° §:143. Method of amending the bill. Minor amend- ments are sometimes made by interlineations in the original bill, if they do not seriously deface it. The bet- ter practice is to amend by separate bill. The amend- ment must be actually made; neither a stipulation nor an order for an amendment will be treated as an amend- ment. Irregularity of an amendment may be objected to by a motion to take it from the files. A demurrer is the proper way to test the merits of an amendment, and a plea can be filed to an amendment of the bill, as well as to the original bill. § 144. Amending the answer. An admission in an an- swer cannot be retracted by an amended answer, unless the admission is shown to have been made by mistake. In the federal practice an answer may be amended by leave of court or judge, upon reasonable notice so as to put any averment in issue when justice requires it.’ Also upon motion to strike out for legal insufficiency, the court, if the answer is amendable, may permit amend- ment upon terms.'* § 145. New answer to amended bill. Where a bill is amended to conform to the proof already taken, an amended answer is proper to present the new issue to the court upon the pleadings in the regular way, and also for 10—Walsh v. Smyth, 3 Bland. Md. 12—U. 8. Eq. Rule 30. 9 13—U. S. Eq. Rule 33. 11—Wilson v. King, 23 N. J. Eq. 150. AMENDMENTS 91 the purpose of giving the defendant an opportunity to allege new defenses to meet the amendment.'* If de- fendant treated complainant’s proof as if in issue when taken, the court granting leave to file a new answer, will probably limit an amendment to the answer to merely conform to the proofs already taken by defendant. Such amendment is then needed because the doctrine that al- legations and proofs must correspond, applies to the answer as well as to the bill.® Federal rule 32 requires defendant to amend and file his answer ten days after an amendment to the bill is filed, or suffer a default. In most jurisdictions, where complainant materially amends his bill, the defendant should be ruled to answer.'® § 146. A material amendment vacates all default or- ders. The regular and proper course upon a material amendment being made to the bill is for the court to set aside all default orders. If the court does not expressly set aside default orders in such case, then, nevertheless, the mere filing of a material amendment to a bill, of itself, sets aside all default orders previously entered. §147. A party may object to a variance in the proofs and thus force an amendment or keep out the evidence. When evidence upon a point not in issue is offered, the opposite party may prevent such evidence, and force his adversary immediately to amend, by making the specific objection that the evidence offered is not relevant to any issue made by the pleadings. The court may reject the evidence or permit the amendment, if it is necessary and material, but it will also give the objecting party time to meet the new issues. § 148. Amendment by supplemental bill. When a pleading becomes defective by events occurring after its 14—South Chicago Brew. Co. v. 16—Coman v. Lovett, 10 Paige, Taylor, 205 Ill. 142. N. Y. 559; Harms v. Jacobs, 160 IIt. 15—Dowden v. Wilson, 108 Ill. 593. 257. 92 ! EQUITY PLEADING AND PRACTICE filing, effecting a change in the interests of the parties, or in the subject matter of the suit; or if through newly discovered evidence it becomes apparent that some new party should be brought in, or some new fact be alleged, the defect may be cured, and the new facts alleged, by filing a supplemental pleading.17 § 148A. Bill of particulars in federal courts. If oral evidence was taken and not reduced to writing, or if the judge’s certificate of evidence, or the master’s report of evidence, or the depositions containing evidence, are lost, and thus not part of the court’s record of the cause, the decree will still be deemed to be supported by evidence duly taken, if it makes specific findings of ultimate facts, there- by showing such facts to have been proved as were not admitted by the pleadings. But the bare general finding in a decree that ‘‘all the material allegations in the bill are proved and that the equities of the case are with the complainant,’’ will not sustain a decree granting relief unless such decree be based upon the findings in a verdict of a jury, called to try the facts, or upon the findings in a master’s report.® § 156. When evidence need not be preserved of rec- ord. Pro confesso decrees need not be supported by 23—1 Barb. 495. 26—Ohman v. Ohman, 233 IIl. 682. 24—U. 8. Eq. Rule 64. 25—Gorman v. Mullins, 172 Ill. 349. 102 , EVIDENCE IN CHANCERY evidence of record, nor a decree dismissing a bill for want of equity, or otherwise dismissing the bill?® But in most jurisdictions, default divorce decrees must be supported by evidence taken in open court. § 157. Exhibits omitted before examiner or master, may be introduced in open court. Exhibits, deeds and other written instruments relating to the cause may be produced and proved viva voce at the hearing for decree, where the party using them has omitted to establish their genuineness before the officer taking the proofs.?* A satisfactory excuse must be given for not making proof in the usual way.?® § 158. Objections and rulings upon evidence in chanc- ery. Examiners, commissioners and notaries, taking de- positions, are not supposed to be qualified, like judges and masters, to pass upon objections to evidence; and besides, they have no pleadings to show what issues form the case. If these officers were permitted to pass upon evidence, errors of ruling would be too numerous and cause too much inconvenience, especially when depositions are taken at distant places. Hence, the wise practice that all evidence deposed before such officers be received subject to the objections stated, and that the officer taking the deposition be without power to reject or pass judg- ment upon the admissibility of evidence, or to rule upon objections. Objections should be stated nevertheless. They can be passed upon later by the court upon a motion to suppress the deposition. The courts have power to deal with the costs of incompetent, immaterial, or irrele- vant parts of depositions.?** § 159. Objections should be made in time to afford cor- rection. If an objection is intended to be insisted upon 26a—Smith yv. Trimble, 27 IIL 27—1 Barb. 308. 152; Jackson v. Sackett, 146 Il]. 646; 28—Cosequa v. Fanning, 2 Johns First Nat. Bank v. Baker, 161 TlL Ch. N. Y. 481. 281. 28a—U. S. Eq. Rule 51. EVIDENCE IN CHANCERY 103 when the deposition is read to the court at the hearing for decree, or to be insisted upon when later the case is appealed, it should first be made in time to give oppor- tunity for correction, if correction be possible. Objec- tions based on informalities and irregularities in taking proofs should be made by motion to suppress the depo- sition before the hearing, and if overruled, an exception should be taken; but all more substantial objections may be made at the hearing for decree, either before or after the evidence is read. Incompetent testimony should be objected to, lest it be treated as competent, in the absence of objections.?® § 160. Exceptions unnecessary to rulings upon ob- jections. Unless required by statute or court rule,?* ex- ceptions need not in chancery be taken or preserved to the rulings of judges or masters upon objections to evi- dence.*° But exceptions should be preserved at a jury trial where the chancellor has submitted an issue of fact to be tried by a jury. The federal courts are required to pass upon the ad- missibility of all evidence offered, as in actioris at law. Therefore exceptions to the ruling of the court must be made by the party against whom the ruling is made, and the court, when evidence is offered and excluded, must. take and report so much thereof, or make such a state- ment respecting it, as will clearly show the character of the evidence, the form in which it was offered, the objec- tion made thereto, the ruling of the court, and the ex- ception.*°* § 161. To save an objection for review, it should be insisted upon. To save for review an objection as to the 29—Millard v. Millard, 221 Il. 30—Swift v. Castle, 23 Ill. 209. 86. 30a—U. S. Eq. Rule 46. 29a—Cook Co. Ill, Chan. Rule 2. (Mas. in Chan.) 104 EQUITY PLEADING AND PRACTICE | admissibility of evidence the objection should be made and insisted upon successively before the master when evidence is taken, then upon objections to his report, and then upon exceptions to the report before the chancellor. § 162. Judges and masters should express their rul- ings, upon the record. Where evidence is taken in open court, or before a master, the court, and master both have authority,*! and should rule upon objections to evidence before the taking of the evidence is closed.32. A party naturally relies upon his evidence, when the court, even against objection, admits it into the record, and at no time later rules against it. A ruling is necessary to in- form a party before it is too late, whether the court or master regards the evidence as competent. Otherwise parties will be misled into relying upon evidence which even the lower court, or master, may secretly deem later to be improper under the objection, and which might have been corrected, if the lower court or the master openly had ruled against it. Objections produce little impres- sion, but a ruling of the court or master produces cau- tion. The function of an objection, is not only to prevent incompetent testimony, but also to give warning and no- tice to produce competent testimony.*? A party may suf- fer as much if the court or master fails to rule upon ob- jections as by an erroneous ruling.*4 Objections must be called to the attention of the chan- cellor and a ruling should be insisted upon by both parties; and objections must be specific enough to point out the grounds of incompetency.*® If a ruling is not in- sisted upon, it may be deemed to be waived.2® In 31—U. 8S. Eq. Rule 62; Wooster 35—Hamilton v. 8. N. Gold Min. v. Gumbriner, 20 Fed. 167. Co., 33 Fed. 562; Freeny v. Freeny, 32—Lathrop v. Bramhall, 64 N. 80 Md. 406. Y. 365; U. 8S. Eq. Rule 46. 36—Bunnel v. Stoddard, 4 Fed. 33—Millard v. Millard, 221 Ill. Case No. 2135. 86. 34—Lathrop v. Bramhall, 64 N. Y. 365. EVIDENCE IN CHANCERY 105 some jurisdictions if a ruling is reserved and not ren- dered and the evidence is harmful and incompetent, the effect of reserving and not ruling is the same as if the objection had been overruled and exception taken.*" Fail- ure to rule after reserving decision has been held to be ground for recommitting the report.*® A master or a judge may reserve his ruling till later evidence throws more light upon the case, but the rulings should be an- nounced when the evidence is all in.°8* A. judge or a master, though ruling against testimony, should still allow the rejected testimony to appear in the record, subject to the objection and ruling, for a re- viewing court to pass upon.®® In the federal courts he cannot refuse this right,#? and this course should be pursued where there is any doubt about the competency of the evidence.*! The chief concern of a reviewing court is to have the evidence in chancery causes appear im the record for review. § 163. When objections to master’s rulings on evi- dence are brought before court for review. In most juris- dictions the general practice is to seek the opinion of the court on the master’s ruling upon evidence, when the master has made his report.*? But in some jurisdictions, objections to the master’s rulings upon evidence should be brought before the chancellor immediately after the evidence and testimony before the master is closed, and before the master makes his report..** «he 2 3 2 2 a 37—Lathrop v. Bramhall, 64 N. 41—Ellwood v. Walter, 103 Ill. Y. 365. App. 219. 38—Berrian v. Sanford, 1 Hun. 42—1 Barb. 484. (N. Y.) 625. 43—Cook County, Ill. Eq. Rules; 38a—Lathrop v. Bramhall, 64 N. Dickinson v. Torrey, 91 Ill. App. Y. 365. 304; Glos v. Hoban, 212 IIl. 222. 39—92 U. 8. 1. 40—Fayerweather v. Ritch, 89 Fed. 529; U. 8. Eq. Rule 46. CHAPTER XV Motions of Course and Motions not of Course § 164. Interlocutory motions or petitions. An interloc- utory motion is an application or request made to the court. for some interlocutory order commanding or for- bidding certain acts, either to further the proceeding or to protect the rights of some of the parties to the suit. Such applications may be made orally, and are then called motions; or they may be made in writing, when they are called petitions. A request should be made in writing, if based upon a long statement of facts. § 165. Motions of course and motions not of course. Motions of course are those which are granted as a matter of course under some standing rule of court, or according to the known practice of the court. Motions not of course are those which will be granted or refused according to the discretion of the court. In the federal courts the clerk receives and grants all motions, rules, orders, and other proceedings which are grantable of course, such as issuing process of subpoena requiring defendant to appear and answer the bill, or such as issuing final process, like writs of attachment, sequestration or assistance, to enforce and execute de- crees, or to grant orders that bills be taken pro confesso.' Upon the granting of a motion, the solicitor should himself invariably draw up the court’s order in writing. It is seldom that the court or its clerk can have the details of the order in mind, and often the order is forgotten and not entered by the court. 1—U. 8. Eq. Rules 2, 5, 7, 8, 9. 106 CHAPTER XVI Dismissal of Bill § 166. Dismissals by plaintiff. The dismissal of a bill ‘‘without prejudice’? and a simple dismissal, have the same effect, and are without prejudice to the bringing of a new suit. In English practice, plaintiff could dis- miss his bill at any time before decree, and this is the rule in some jurisdictions in the United States. An order of court must be obtained to effect a dismissal, and in the United States there is a decided tendency to regard the application as resting in the discretion of the court, to be exercised with regard to the rights of the parties. Therefore, in many jurisdictions there can be no ‘‘dis- missal without prejudice’’ when the dismissal would in fact be with prejudice to other parties, or where orders affecting the merits have been entered, or where the court has announced its decision, or after demurrer sus- tained and leave to amend not availed of, or after an adverse report by a master, or after a cross-bill asking affirmative relief has been filed. § 167. Dismissals by defendant. A bill will be dis- missed upon hearing, on motion of defendant, where plaintiff unreasonably delays the prosecution of the cause, but ordinarily not while the cause is pending before a master. If an indispensable party is lacking, and it is impossible to bring him in, the bill can be at once dismissed. In some jurisdictions it is the practice, even before a hearing, to entertain a motion by defendant to dismiss the bill for want of equity appearing on its 107 108 EQUITY PLEADING AND PRACTICE face, which cannot be cured by amendment. Such a motion is equivalent to a demurrer. If a plaintiff ignores interlocutory orders, the defendant may have the bill dismissed; and if a solicitor is not authorized in the particular court to file a bill, defendant may have the bill dismissed. § 168. Dismissal on court’s own motion. The court may dismiss a bill at any stage of the proceedings for want of equity, upon its appearing that there is an entire lack of equity jurisdiction! If a bill is dismissed ‘‘for want of equity’’ by the court upon hearing for decree, such dismissal may be pleaded in bar to a new bill filed for the same cause of action; and a bill cannot be dis- missed ‘‘without prejudice,’’ in such case, when a new bill must cover the same ground. When the pleadings are defective, or when through some informality in the bill, the court cannot give the complainant relief,? or where from some other cause the bill is dismissed without the court passing upon the merits, and it appears that the complainant may be entitled to some relief, it should be dismissed without prejudice.’ § 169. Dismissal after decree. After a decree, the bill cannot be dismissed except by consent; but after a re- versal of a decree without directions, the complainant may dismiss the bill; the effect of the reversal being, to leave the cause pending for hearing, as if no decree had been rendered. 1—Richards v. Lake Shore R. R. 3—Story’s Eq. Pl. Sec. 793. Co., 124 Ill. 516. 4—Mohler v. Wiltberger, 74 Il. 2—Crozier v. Acre, 7 Paige, N. 163. Y. 137. CHAPTER XVII. The Hearing in Court §170. Procedure, upon hearing for decree. Hither party may set the cause down for hearing for decree, after the cause is at issue. On the hearing, the com- plainant’s bill is first read, or stated in substance; then the defendant’s answer; after which the matters in issue are stated to the court, together with the equitable points of law arising thereon. Then the complainant’s evidence is heard, or if the evidence is not taken in open court, the depositions which were taken, are read to the court, and after this the defendant’s evidence, and then again the complainant’s evidence in rebuttal. If the cause is on hearing upon a master’s report, the evidence is not read, but the master’s findings are read, also the excep- tions thereto, if any were filed. After this follows the argument of the complainant’s solicitor, which is fol- lowed by that of the defendant’s solicitor, after which the complainant’s solicitor may reply. §171. Abstracts of evidence specially made for the court. ‘‘Preparatory to submitting a cause to the court for hearing upon the pleadings and evidence, if the same are voluminous, proper abstracts thereof, with indexes thereto, should be prepared. The evidence bearing upon each issue, or distinct question of fact, should, so far as possible, be grouped together, first citing all the evidence in favor of counsel’s view on each issue, and then citing all the evidence against that view; so that the court may easily verify the evidence on each issue. There is no 109 110 EQUITY PLEADING AND PRACTICE other step in the preparation and submission of a cause, in which care, discrimination and thoroughness on the part of counsel, are of greater moment than in bringing together in logical and lucid form and sequence the vital issues of fact in the case and the evidence applicable thereto.’’! §172. Petition at hearing for leave to amend or to present new evidence. ‘‘After taking evidence is closed, and before final decree, if a party desires to present any new matter in the way of issue or evidence, he must apply for leave to the court by petition setting up the new matter or issue, so that its relevancy and materiality may be judged, and asking leave to introduce further evidence, or to amend the pleadings, and also showing the reasons why the party was not at fault in not earlier presenting the matter.’’? 1—Shiras, Eq. Pr. 2—Shiras Eq. Pr. CHAPTER XVIII Decrees and Decretal Orders § 173. Counsel prepares the decree. A decree is the decision and mandate of a court of equity, upon issues properly presented and heard by the court. Decrees are final or interlocutory. When the decision of the court is made known, a decree in accordance therewith should be prepared by counsel and be submitted to the judge for signature, and when signed it must be filed with the clerk for entry. It should clearly set forth the exact findings of fact, according to the pleadings and evidence; and should clearly set forth the findings of law by the court, upon the issue or issues passed upon; and if by such decree the defendant is ordered to do or refrain from doing any act, the same should be set forth clearly, in the mandatory or ordering part of the decree; and, the time, mode and condition of doing an act should be definitely stated. §174. Counsel serves copy upon opposite solicitor. Counsel serves upon the opposite solicitor a copy of the order or decree, with notice of the time and place he will apply to the court to have the order or decree settled. If it is satisfactory, opponent’s solicitor usually mdicates his consent by an endorsement on the draft. If it is not satisfactory, opponent’s solicitor proposes amendments to the draft of decree and appears before the court, and the court settles the decree. When a mistake or clerical error has been made in a decree, it may be corrected by 1—Shiras Eq. Pr. 111 112 EQUITY PLEADING AND PRACTICE the court, upon motion or petition, made after entry and before enrollment. The party making the application must show that he has been injured by the error or mis- take.? = §175. Final and interlocutory decrees. A decree which finally disposes of the rights of the parties upon the merits of any branch of the controversy is final; but if the merits are not passed upon, and the order is made simply as an additional step towards a final determina- tion upon the merits, it is an interlocutory decree. The distinction is important, because the right to appeal from a decree is statutory and must be strictly followed, and the statute usually restricts the right to appeal to final decrees. A final decree remains under the control of the court, subject to be modified or set aside only dur- ing the term in which it was entered. After that term, the court is powerless to modify it or to enter any further orders, except those necessary to enforce the decree. On the contrary, a decretal order, or interlocutory decree, remains entirely subject to the control of the court, and it may be modified or set aside at any time and at any term until final decree. §176. Final decree. If the decree determines litigated issues and, without further judicial action, fixes rights and liabilities of parties, the decree is final for the pur- poses of appeal, although the trial court may continue its jurisdiction over the case for ministerial purposes, such as making sale of property, or taking an account rendered necessary by the terms of the decree, or other- wise executing the decree rendered. §177. Interlocutory decree. If the decree, though in form final, cannot be carried immediately into effect, and does not execute itself, but needs further judicial 2—Yarnell v. Brown, 170 Ill. 362. DECREES AND DECRETAL ORDERS 113 action, it is interlocutory, and therefore an appeal cannot be taken. §178. Decree in part final, in part interlocutory. A de- cree may be in part final and in part interlocutory, as where it settles rights as to a part of the subject-matter, and reserves for further consideration questions inde- pendent of that part; or where a decree disposes of the whole case as to only some of the parties. §179. Pro Confesso or default decrees. If a defendant, having been duly served, fails to enter an appearance within the proper time, or, having appeared, fails to file a plea, demurrer or answer to the bill, by the proper day, the complainant may have the court enter an order finding such defendant to be in default, and that the bill be taken pro confesso. § 180. Rule days for defaults. In most jurisdictions court rules provide that on and after the third day of each term, defaults may be entered as to defendants properly served who filed no appearance or pleading. In the federal courts defendant must plead within 20 days after being served with process, or be subject to default.?* § 181. Complainant may take default decree or force an answer, Upon default the cause may proceed ex parte, and a default decree therein may be entered;’ or the com- plainant, if he requires an answer to enable him to obtain a proper decree, may procure process of attachment against such defendant, upon which the defendant may be arrested and held until he fully complies with the order of the court as to pleading to or answering the bill. A decree pro confesso is also known as a ‘‘default decree’’ or a ‘‘decree by default.’’ 2a—U. S. Eq. Rule 16. 3—U. S. Eq. Rule 16. Thomson v. Wooter, 114 U. 8. 104. EH. P.—8 114 EQUITY PLEADING AND PRACTICE § 182. Default decree should find facts as to service. In order to support a decree pro confesso, the decree should find all the facts showing the services of sum- mons, or service by publication, was regular and accord- ing to law, unless such facts have been found and recited in a prior order entering the default of record. § 183. No defaults or confessions against infants. Neither a default, nor a decree pro confesso, can be en- tered against a minor or against persons non compos. Against such parties there must be evidence in the record sufficient to sustain the decree. § 184. Effect of order pro confesso. The order that the bill be taken pro confesso is not in itself a decree, but only a decretal order. It precludes defendant from of- fering affirmative defenses or evidence, and establishes the confession of defendant to the truth of all definite and certain allegations of the bill; but allegations not certain must be supported by sufficient proof. In any case, however, the court may in its discretion require proof. Where proof is taken, the decree should depend thereon and not on the bill alone. No decree can be entered unless the bill alleges sufficient facts to warrant a decree. Defendant may appear and show that the bill does not warrant the decree sought, but this must appear from the averments of the bill. . § 185. Power of court to vacate decree pro confesso. The power of the court over default decrees, is more ex- tensive than over decrees rendered upon a hearing of both parties. In some jurisdictions a default decree may be set aside in the discretion of the court, upon motion or petition, even at a subsequent term, in order to let in a meritorious defense, and to prevent fraud and mis- take. Defendant as a rule is required to show a reason- able excuse for his failure to appear or answer, and must show promptness in making his application after knowl- DECREES AND DECRETAL ORDERS 115 edge of the decree, and must show that he has a meritor- ious defense. § 186. Enforcement of decrees by attachment or se- questration. It is one of the maxims of equity that a de- cree acts in personam. By this is meant that the decree is enforced, if necessary, by issuing an attachment against the person, when within the jurisdiction of the court, and also by sequestration of the goods and lands, within the jurisdiction, of an absent defendant, until he complies with the decree. A decree usually orders a defendant personally to do, or cause to be done, or refrain from doing certain acts. The great equity remedies of compul- sion and prevention, actively compel or prevent particu- lar acts, whereas the common law remedy of damages simply compensates for wrongs already suffered. The citizen can be rescued from danger by equity; he can only be consoled after his injury by law. The common law courts can do no more than to issue process to satisfy the plaintiff’s demand by seizure and sale of his property. In chancery it is not usual to issue process of execution. But it may be done. Before a defendant is deemed to be in contempt he must be personally served with a writ, under the seal of the court, which recites that part of the decree which the defendant is to obey. A party is in contempt if he neg- lects to comply with the decree within the time therein specified. If the party has been served with such a writ and he neglects to obey it, the fact is brought to the attention of the court by affidavit, and a writ of attach- ment is issued, upon which he is arrested and brought before the court, and if he does not purge himself of the contempt, or comply with the mandate at once, he is com- mitted to jail+ , ~-} . ‘ 4 Up eets Go gies wa, le ie ok a > 4—U. 8. Eq. Rule 8. CHAPTER XIX Examiners and Special Commissioners § 187. Examiner. An examiner is an officer of a chanc- ery court. His duties are to receive interrogatories for the examination and cross-examination of witnesses, and to examine and cross-examine such witnesses; to reduce the depositions to writing, and to read them to the wit- nesses before they sign the same. He is authorized to administer the usual oaths and to take the usual affirma- tions of witnesses. By statutes of the various states, and by rules of practice in the various courts, the duties of examiners and of special commissioners are now per- formed also by notaries public, justices of the peace, masters in chancery and judges of courts. In some juris- dictions examiners are appointed by special commission and are called ‘‘Special commissioners.’’ § 188. Special commissioners. The phrase ‘Special Commissioner’? means a person or officer holding a ‘‘special commission’’ in the form of letters patent is- sued by a government, or a warrant contained in an order of court. Such letters, or order of court, define the powers or duties of the person or officer so specially commissioned. In chancery practice, special commis- sioners are persons or officers specially appointed under a dedimus, or commission to take depositions, or to exam- ine witnesses. 116 CHAPTER XX. Masters in Chancery § 189. Nature of the office. A master in chancery is an officer of a court of equity, and acts as an assistant to the chancellors, performing both judicial and minis- terial functions. His duties, though often judicial in character, are held in some jurisdictions to be ministerial duties, and not judicial. His duties and powers are gov- erned by statutes, rules of court and the general prac- tice of courts of chancery. § 190. Duties of master. The matters referred to a master by the chancellors vary. He may be ordered to do a particular ministerial act; as for instance to take the testimony in a case and report the same, or to take the testimony and report the same, together with his conclu- sions thereon. There is hardly any matter in a chance cause which the chancellor may not refer to a master’ It is the practice to refer to masters exceptions for scandal or impertinence, exceptions to an answer for insufficiency, the settling of interrogatories as to their relevancy, and all cases involving difficult accountings, or involving voluminous testimony. §191. Master’s acts are limited by statutes, court rules, and the order of reference. Statutes and chancery rules of court expressly invest a master with certain powers. Otherwise, a master can act only upon an order of reference entered by the court. The master must accept the order of reference as conclusive of all matters embraced therein. Where a bill is taken pro confesso, 117 118 EQUITY PLEADING AND PRACTICE and the cause is referred, defendant cannot offer defen- sive evidence before fhe master. The order of reference is to be construed together with the pleadings, and the master cannot entertain any claim, or decide any matter not embraced by the pleadings, nor can the master per- mit an amendment of the pleadings; that is for the court to do. § 192. References to a master are subject to the court’s discretion, except in a case involving an accounting or voluminous testimony. References to a master are dis- cretionary with the court, except when the suit involves a complicated accounting. In the latter case a reference is necessary, and a reference is also necessary where the testimony is voluminous and conflicting;! but not so where amount due under a contract is a simple matter; nor where there is a mere computation of payments and interest. In some jurisdictions, when a cause is at issue, the entire cause may be referred to a master to hear the evidence and arguments, and to report his findings upon the entire case. But in federal practice the court cannot refer all the issues to be passed upon by the master except upon consent of the parties.* In federal practice, save in matters of account, a refer- ence to a master is exceptional, and can be made only upon a showing that some exceptional condition requires it" § 193. Duty and power of master in federal courts. In the federal courts the master has power to regulate all the proceedings in every hearing before him upon refer- ences; and he has full authority to examine the parties in the cause, upon oath, touching all matters contained in the reference; and also to require the production of all books, papers, writings, vouchers and other documents 1—Beale v. Beale, 116 Ill. 292. 1b—U. 8. Eq. Rule 59. la—Kimberly v. Arms, 129 U. S. 524. MASTERS IN CHANCERY 119 applicable thereto; and also to examine on oath, viva voce, all witnesses produced by the parties before him, or by deposition, according to the Acts of Congress, or otherwise, as provided in the Equity Rules; and also to direct the mode in which the matters requiring evi- dence shall be proved before him; and generally to do all other acts, and direct all other inquiries and pro- ceedings in the matters before him, which he may deem necessary and proper to the justice and merits thereof, and the rights of the parties.? The orderly and acceptable procedure is to present to the court all objections and questions arising before the master in the form of exceptions to his report. Wit- nesses living within the district may, upon notice to the opposite party, be subpoenaed to testify before the master.* The admission and rejection of evidence rests within the sound diséretion of the master.» The party must proceed with the matter referred, within 20 days.7 It is the duty of the master to speed the matter referred.® § 194. Production of books and writings before master. If the order of reference contains a direction that the parties produce before the master, upon oath, all books or writings in their possession or power relating to the matter of the reference, and that the parties be ex- amined upon interrogatories, as the master shall direct, the words ‘‘as the master shall direct’’ apply to both branches of the direction, namely, to the production of deeds, and to the examination on interrogatories; and they are considered important as vesting the master with discretion upon the subject of production.® 2—U. 8. Eq. Rule 62. 7—U. 8. Eq. Rule 59. 3—Lull v. Clark, 20 Fed. 456. 8—U. 8. Eq. Rule 60. 4—U. 8S. Eq. Rule 52. 9—1 Barber 480. 5—U. S. Eq. Rule 62; Wooster v. Gumbriner, 20 Fed. 167. 120 EQUITY PLEADING AND PRACTICE § 195. Production under subpoena duces tecum, or under notice. The master may order the production of books and papers by subpoena duces tecum, inserting the words: ‘‘And then and there bring with you and pro- duce before said master all deeds, books, papers and writings in your custody or power relating to the matter of reference, and more especially the following.’’?° Or the production may be caused by taking out and serving a warrant or notice signed by the master and requiring the production of the certain books and writings.!% §196. Master’s discretion to order production is lim- ited. Although the language of the order of reference is general that the parties produce all books, papers, etc., the master is to exercise his discretion in determining what books and papers are necessary to be produced. The discretion of the master is limited by the rules which guide the court in compelling a discovery of books and documents in other cases.4 §197. Master may not permit withdrawal of exhibits. The master has power to receive evidence, but cannot grant leave to withdraw exhibits even upon parties leav- ing copies thereof.12 Therefore, the master should ex- ercise caution in impounding books and writings belong- ing to third persons not parties in the suit, under the name of evidence in a cause. § 198. Evidence before master. In the absence of spe- cial restrictions, a master has power to receive evidence for the proper determination of any matter referred. A witness once examined, cannot be re-examined before the master, without an order therefor. The master should be personally present to examine witnesses. Where he has power to rule upon an objection to the evidence, he 10—In re O’Toole Estate, 1 Tuck. 11—1 Barber 481. ee fs 29 N;. ¥. 12—Bolter v. Kozolwski, 211 Tl. 10a—1 Barber 481. 79. MASTERS IN CHANCERY 121 should rule thereon, to show how he will regard it in making his report;!* and even if the evidence seems to be inadmissible, the master (though ruling against its ad- missibility), should as a rule permit the evidence to go into the record subject to the objection and subject to his ruling, so as to avoid the necessity of a re-reference in case the court should deem the evidence admissible.14 Objections should specify the ground of objection and should be made when the evidence is offered. In most jurisdictions, if objections are overruled by a master, exceptions need not be taken to the master’s ruling,” and the master’s rulings upon evidence can be reviewed by the court upon ‘‘exceptions to his report.’’?1® An Illinois case to the contrary * is based upon a contrary local rule of court1® which requires objections to the master’s rulings upon evidence to be brought to the attention of the court before the master’s report is filed. Evidence taken by one master cannot be consid- ered by another master in some jurisdictions, but may be considered by the court.’® In federal practice, the master, probably like the court, must rule on the admissibility of all evidence offered and exceptions to his rulings must be preserved.'®* § 199. Nature of hearing before master. Upon a hear- ing before a master in chancery the parties have the same right to be heard, by themselves or by counsel, to introduce evidence, cross-examine witnesses, and to take the various steps authorized by law, as if the hear- ing was before the chancellor instead of the master. 13—Berrian v. Sanford, 1 Hun. N. 18—Cook County, Ill. Chan. Rule Y. 625. 2, Governing Masters in Chancery. 14—Blease v. Garlington, 92 U. 19—Coel v. Glos, 232 Ill. 147; Me- S. 1; U. 8S. Eq. Rule 46. Mahon v. Rowley, 238 Ill. 31. 15—Swift v. Castle, 23 Ill. 209. 19a—U. 8. Eq. Rules 46, 62. 16—1 Barb. 484. 17—Dickinson vy. Torrey, 91 I. App. 297. 122 EQUITY PLEADING AND PRACTICE § 200. Notice of hearing before master. It is neces- sary to give notice to the opposite party when testimony before a master is to be taken. A party is entitled to be present and listen to the testimony of a witness as it is detailed by him in chief, and then, or as soon thereafter as convenience will permit, to cross-examine him; and it does not cure the error of denying this opportunity, to allow him, at some subsequent day, to have the wit- ness brought before the master in chancery for his cross- examination.!*” § 201. Reference to state account. Upon a reference to a master to take and state the accounts between par- ties, the court should first find and declare the rights of the parties, and the rule to be adopted in stating the ac- count; and the examination should be according to such finding and such rule.?? Each party should bring in his whole account, for the whole period for which he is ac- countable, in the form of debtor and creditor.2! The master should then ascertain from the parties or their counsel, by written acknowledgments, what items are agreed to, and what items are objected to, and the proper proofs should then be taken. Any party not satisfied with the accounting may examine the accounting party.” § 202. The master’s report. The master’s findings and conclusions are embodied in a document called the master’s report, which should show the proceedings under the order of reference, the evidence taken, and the find- ings of fact, and conclusions of law, reached by the mas- ter, in such form and manner that the court may intel- ligently act upon such report.?* § 203. Form and sufficiency of report. A master, di- rected to find facts, must report his findings of the ul- 19b—U. M. Life Ins. Co. v. Slee, 21—2 Dan. 878. 123 Ill. 94. 22—U. 8. Eq. Rule 63;, 2 Dan. 20—Remsen v. Remsen, 2 Johns. 878. Ch. 495. 23—Schnadt v. Davis, 185 Ill. 476. MASTERS IN CHANCERY 123 timate facts, and not items of evidence tending to es- tablish them, nor mere conclusions of law. The report should not contain matters of argument or reasoning in. support of its conclusions, but should disclose, where the matter would otherwise be doubtful, the basis of such conclusions, by reference to the pages of the evidence showing the testimony pro and con. § 204. The master should find as to each ultimate fact pleaded. A carefully drawn master’s report should con- tain an express affirmative or negative finding, as to each material fact pleaded in a bill or answer, or a finding that a certain averment is not supported by any evidence, nor confessed in any pleading. If unable from the evi- dence to determine a fact, the master should find it against the party holding the affirmative.?** After each finding, the master should cite the number of the page, or exhibit, containing testimony pro and con, bearing on the finding. Thus the report vindicates itself before the court.?*° § 205. Master must draw up his own report. The de- cree of a court is usually not written by the chancellor, but by one or more of the solicitors of the parties, and is signed by the chancellor after the opposing party has had opportunity to argue his objections thereto. But the parties are not permitted to draft the master’s report. The master is compelled to draft his own re- port.?4 | § 206. But counsel may file briefs requesting particu- lar findings. Counsel on either side, of course, has the: right to draw up and file with the master a written brief and argument, stating the formal findings ?** of fact and 23a—Bradley v. McLaughlin, 8 24—Fitchburg Steam Eng. Co. v. Hun N. Y. 545. Potter, 211 Ill. 138. 23b—McMannomy v. Walker, 63 24a—Keeley Co. v. Hargreaves, Ill. App. 278. 236 Ill. 332. 124 } EQUITY PLEADINGS AND PRACTICE of law, which the master is requested to find, together with references to the exhibits or pages of testimony, containing evidence, and citing the authorities bearing on findings of law requested. This accomplishes, in a formal and accurate manner, what every oral argument before a master does in an informal manner; and this procedure insures that the master will carefully con- sider granting or refusing each finding of fact or law requested. Such requests for specific findings may fur- nish a guide for later objections to the master’s report. § 207. Form of brief before master. A lawyer’s brief may properly contain (1) a request that the master make certain findings of fact, stating the findings sub- stantially as alleged in the pleading, and referring to the pages of the evidence for and against each of such find- ings; also (2) a request that the master find certain conclusions of law, stating them exactly, and citing au- thorities. § 208. Objection that certain findings were omitted. It is important to object because the master omitted certain findings which might be in objector’s favor. The objector’s attention is often absorbed in the findings that appear in the report. In his desire to change these, and to have them agree with his view, he is likely to forget other proper findings, on issues entirely omitted from the report. § 209. Method of objecting to master’s report. An ob- jection that ‘‘the findings and each of them are not war- ranted by the evidence’’ is not sufficiently specific.?> It seems in Illinois, objections need not recite or point out the evidence relied upon, but only need point out dis- tinctly the findings and conclusions sought to be re- 25—Waska v. Klaisner, 43 Ill. App. 611. MASTERS IN CHANCERY 125 versed.?* But in most jurisdictions an objector is re- quired not only to point out the finding objected to, but also to state the ground of the objection.2”7 It is also good practice for the objector to cite the pages of testimony, or the numbers of the exhibits, bearing on the subject- matter of the objection or exception, grouping together those supporting the master’s finding, and then those against the finding. § 210. Exceptions in court to master’s report. If, after hearing the objections, the master declines to mod- ify his report, the parties insisting on such objections must file them again in court, under the name ‘‘Excep- tions to the Master’s Report,’’ because the master’s findings of fact are undisturbed in the absence of excep- tions so filed. If objections are not filed before the master, exceptions will not be considered by the court. Exceptions should point out specifically the particular error upon which the excepting party relies. An ex- ception calling for an examination of evidence must refer to and point out the evidence relied upon. § 211. Court’s ruling upon exceptions should be spe- cific. A decree or order disposing of objections to the master’s report, should specify what exceptions were sustained, and what overruled, so that an appellate court may determine the basis of the decree entered.*8 § 212. No objections or exceptions necessary to mas- ter’s conclusions of law. But no objections are necessary te a master’s findings or conclusions of law. These will be heard by the court without the filing of objections or 26—Hayes v. Hammond, 162 Ill. ston, 13 Peters 359; Emerson v. At- 133; MeMannomy v. C. D. & V. R. R. Co., 167 Ill. 497. 27—1 Barb. 551; 2 Dan. 957; 2 Bates Fed. Eq. 821; Hurd v. Good- rich, 59 Ill. 455; Harding v. Handy, 11 Wheaton 103; Story v. Living- water, 12 Mich. 314; Singer v. Steele, 125 Dl. 429; Glos v. Hoban, 212 Ill. 222; Green v. Bishop, 1 Clifford 186. 28—Prendergast v. McNally, 76 Til. App. 335. 126 EQUITY PLEADINGS AND PRACTICE exceptions.2® It serves a very useful purpose, however, to file before the master formal objections to his con- clusions of law, citing the authorities. It may induce him to conclude differently. § 213. Court may make findings additional to those in master’s report. There is no rule of practice which for- bids the court’s making additional findings after the filing of a master’s report if the evidence accompanying the report warrants and supports such additional find- ings. The court is not confined, in its review of the evidence, to the mere question of ascertaining whether the exceptions filed to the report, or any of them, should be sustained. When the master’s report is returned into court, the party objecting to it may file exceptions, upon the hearing of which the whole evidence is brought for- ward and passes in review before the court. § 214. Action of court on report. The report of a master is not conclusive upon the court, even as to the facts found, but is subject to review by the court. It is generally held that the report of a master is presump- tively correct, and that his conclusions of fact will not be disturbed unless error is made to appear. A finding upon conflicting evidence will rarely be disturbed. But in the federal courts, where the entire cause can be referred to a master only upon consent of the parties, and where therefore some references are by consent, and others (where particular points and not the whole case is referred), are compelled by the court, a distinction is made. In references by consent, the report is presump- tively correct; in other ordinary references, the report is advisory, merely. § 215. Confirmation of master’s report. In some juris- dictions, by court rule or statute, the report will be 29-—2 Dan. 952. MASTERS IN CHANCERY 127 deemed confirmed unless exceptions are filed within a stated time.*° In most jurisdictions an express order is entered confirming the master’s report. Confirmation may be implied, as by an order overruling exceptions to the report, or by the entry of a decree based upon the report. An order of confirmation is interlocutory and subject to modification ; it is not a final order or adjudica- tion. The confirmation may be set aside for cause. 30—U. S. Eq. Rule 66. CHAPTER XXI Injunctions § 216. Definition. An injunction is a writ granted by a court commanding an act to be done which the court regards as essential to justice (mandatory injunction), or forbidding an act which it deems against justice (pre- ventive injunction). § 217. Temporary injunction. Injunctions are (1) preliminary or interlocutory, or (2) perpetual. The first are granted prior to the final hearing and continue until answer or until final hearing, or until further order of the court. They do not determine the rights of the parties. Their purpose is to hold the property as it stands, to pre- vent further injury, until the right itself is determined. If a preliminary injunction gives practically all the relief that could be obtained by a final decree, it will not be issued, nor should it be issued where the injurious acts have been completed, nor where no injury will occur. A preliminary injunction is also called a temporary in- junction, or an injunction pendente lite. §218. Perpetual injunction. A perpetual injunc- tion is one which perpetually enjoins, and is usually granted in a final decree after trial of the entire cause. § 219. Restraining orders in federal courts. When- ever notice is given of a motion for an injunction out of a district court of the United States, the court or judge thereof may, if there appear to be danger of irreparable injury from delay, grant an order restraining the act 128 INJUNCTIONS 129 sought to be enjoined until the decision upon the motion. Such order may be granted with or without security, in the discretion of the court or judge. § 220. Preliminary injunctions and temporary re- straining orders in the federal court. In the federal court no preliminary injunction can be granted without notice to the opposite party. Nor can any temporary restraining order be granted without notice to the op- posite party, unless it clearly appears from specific facts, shown by affidavit or by verified bill, that immediate and irreparable loss or damage will result to the applicant before the matter can be heard on notice. In case a temporary restraining order is granted without notice, the matter must be made returnable at the earliest pos- sible time not later than ten days from date of the order, and when the matter comes up for hearing the party who obtained the restraining order must proceed with his application for a preliminary injunction or the re- straining order will be dissolved. Upon two days’ notice the opposite party may move the dissolution or modifi- cation of the restraining order.” In most jurisdictions, no injunction will be granted without previous notice of the time and place of the application having been given to the defendants who can conveniently be served; unless it appears from the bill or affidavit accompanying the same that the rights of the complainant will be unduly prejudiced if the injunction is not issued immediately or without such notice; and before an injunction shall issue, complainant as a rule, is required to give a bond for the protection of those en- joined. § 221. Bill must show an existing right, and its im- pending violation. The bill for injunction must show that the acts sought to be prevented will be a substantial 1—U. 8. Judicial Code, Act Mar. 2—U. S. Rule 73. 3, 1911. ER. P.—9 1380 EQUITY PLEADINGS AND PRACTICE violation of complainant’s clear right and not a mere inconvenience to complainant’s right. The right as- serted by complainant must be free from doubt where the preliminary injunction will do more than merely main- tain the status quo, or where the injunction will cause greater loss and inconvenience than will be suffered by complainant if no injunction be granted; and for a pre- liminary injunction, the bill must show that an irrepar- able injury is impending and will occur before the final hearing can be had. A chancery decree acts in personam, and a court hav- ing jurisdiction of the parties may grant and enforce an injunction, although the subject-matter affected by it is beyond the territorial jurisdiction of the court.’ 3—Alexander v. Tolleston Club, 110 Ill. 65. CHAPTER XXII Receivers § 222. Definition. A receiver is an officer of the court through whom the court takes possession of property which is the subject-matter of a pending! suit, preserves it from waste, destruction or loss, manages the same, secures and collects the proceeds, and ultimately dis- poses of the property and proceeds according to the rights of those entitled thereto, whether they are regular parties in the suit, or come in during the course of the proceedings and establish their rights. § 223. Situs of property. A receiver may be appointed for all property within the jurisdiction of the court, whether or not the owner is within such jurisdiction; ? and a receiver may be appointed for the express pur- pose of preventing the removal beyond the jurisdiction of property within the jurisdiction of the court.* § 224. Object and grounds for appointment. The bill should show the need for a receiver to preserve the prop- erty which is the subject-matter of the suit, until a judi- cial determination of the rights of the parties thereto.* The principal ground is danger of loss or injury to such property before the court can decree finally on the merits. If there is no showing of probable danger of loss or in- jury to the property involved, no appointment will be 1—Baker v. Adm. of Backus, 32 3—Loaiza v. Superior C. T., 85 Til. 79. Cal. 11. 2—Hutchinson v. American Palace 4—Davis v. Gray, 16 Wall, 203. Car. Co., 104 Fed. Rep. 182. 181 132 EQUITY PLEADINGS AND PRACTICE made.” The court will not appoint a receiver unless it is shown that the possessor is insolvent, or at least that there is good reason to doubt his ability to satisfy a judgment for damages for loss or injury to the prop- erty;® but insolvency is not sufficient as a sole ground for the appointment of a receiver’ except in foreclosure cases. Where insolvency is likely to result in a loss of the fund or property in controversy, a receiver may be appointed on the ground of insolvency.® It is a high exercise of power for'a court of chancery to place property in the custody of a third person, and a court will do so only when it is made to appear that the property will probably be wasted, secreted or misap- plied.?° § 225. Receiver will not be appointed where there is a remedy at law. The appointment of a receiver is a remedy of equitable origin and jurisdiction, and to main- tain it there must exist no remedy at law.1!' A receiver will not be appointed when the suit is upon a mere ques- tion of legal right,!? or when the party can assert his right by a direct action at law. oo aismames , for assuring the payment of the sum of ........ dollars, days after such date, and that the said defendant have ........ days’ time to answer said bill after the said note or instrument shall have been so produced. FORMS OF BILL 169 72. PETITION FoR LEAVE To AMEND. (Title of court and cause, and address to the court.) The petition of the above-named complamant respectfully shows that the defendant in this cause has caused his appear- ance to be entered therein, and has put in his answer to the bill of complaint, and that your petitioner has filed a replication, but no witnesses have been examined by either party; that since the filing of said replication your petitioner has been advised by his counsel, and believes, that it is essential to the rights of your petitioner in this cause that the bill herein should be amended by adding thereto the following statements: (Insert matter pro- posed to be introduced.) And your petitioner further shows that he had no knowledge of the facts above stated, nor was he aware of the necessity of inserting them in his bill, until after the said replication was filed. Your petitioner therefore prays that he may be at liberty to withdraw his said replication and amend his bill by adding parties defendant or otherwise, as he shall be advised, on pay- ment of costs. ey , Petitioner. 73. PETITION TO AMEND Brut By ADDING A DEFENDANT. (Title of court and cause, and address to the court.) The petition of the above-named complainant respectfully shows that your petitioner filed his bill in this honorable court, against the defendant, on the ........ day Of sci ces , A. D. sae eee , to which the defendant has appeared and put in his answer, upon which your petitioner is advised to make ........ a party to this cause, and to bring him before the court as a de- fendant to the suit. Your petitioner therefore prays that he may have leave to amend his bill by adding the said ........ as a defendant thereto, with apt words to charge him. ; ee eee ee Petitioner. TA. AMENDMENTS TO BILL. (Title of court and cause.) Amendments to the bill of complaint in the above-entitled cause, made pursuant to an order of court dated the ........ day of ........ pA Do wise ee First. In the third line of the second page of the bill, after the word ‘‘testator,’’ interline ‘‘to-wit, on or about the 5th day of June, 1902.’’ 170 EQUITY PLEADING AND PRACTICE Second. After the word ‘‘satisfaction’’ in the tenth line of the fourth page, strike out the words (here insert the words to be stricken out), and in lieu thereof insert the following: (Here insert the words to be inserted.) Third. Strike the names of ........ AN. esq nee out of the seventh line of the fourth page. a Complainant. E. F., Solicitor for Complainant. (Add verification if necessary.) 75. Orver Granting LEAVE To FILE AMEND- MENT TO BILL. (Title of court and cause.) This cause coming on this day to be heard on the verified pe- tition of ........ , complainant in the above-entitled cause, praying that leave be granted to amend the bill, of complaint in the above-entitled cause, as specifically set forth in said petition, and the defendant being present in open court by ........ , his solicitor, and the court being fully advised in the premises, It is ordered by the court that leave be, and the same is hereby, given to said complainant to amend his bill of complaint in the above-entitled cause by filing a copy of said proposed amendments attached to said petition for such leave. 76. OrDER OF REFERENCE TO TAKE PROOFS AND TO Report SAME TOGETHER WITH CONCLU- SIONS OF Fact AND oF Law THEREON. (Title of court and cause.) This cause coming on to be heard upon motion of ........ ; solicitor for ........ ; upon consideration thereof, It is ordered that this cause be and hereby stands referred to Reduce a master in chancery of this court, to take the evidence according to law and to report the evidence to this court, to- gether with his conclusions of fact and of law thereupon, with all reasonable speed; to examine the questions in issue in this cause and report his conclusions thereon; to report his conclu- sions as to whether the evidence and pleadings entitle the complainant or other parties to the relief or any part thereof prayed for in their respective pleadings, or to any other relief; and to perform all such other lawful services as may be neces- sary or proper under the premises. And for the better taking of the evidence all parties not in default shall introduce their evi- dence before said master with all reasonable speed, and shall pro- duce before him all books and writings in their possession or FORMS OF BILL 171 power which contain evidence pertinent to the issues and mat- ters in reference; and said master is hereby authorized and di- rected to cause to come and be produced before him according to law, all proper witnesses and books and writings requested by the parties. Dated this ........ day of ........ 19... 77. ORDER OF REFERENCE TO STATE ACCOUNT. (Title of cause and of court.) This cause coming on for further hearing upon the bill of complaint, the answer of the defendant to said bill, the replica- tion of the complainant thereto, and the testimony taken and reported by the master in chancery under a former order of the court, and the court having heard the arguments of counsel for the respective parties, and being fully advised in the premises, doth find, ete. (here insert the findings of the court as to the facts and the rights of the parties and the rule adopted in stat- ing the account), And in further consideration of the premises, it is ordered that this cause be again referred to the master in chancery of this court, to take the books of account and all papers referred to in the pleadings and report herein heretofore filed, and state the accounts between said parties, taking and re- porting such evidence, if any, as may be further offered by either of the parties to this suit, outside of the said books of account, documents, etc., and report the said evidence and statement of account to the court as soon as practicable, together with his conclusions of fact and of law thereon. And for the better tak- ing of such evidence and stating such account, the master shall cause such witnesses as the parties may desire to appear and give evidence before him, and shall cause the parties, or either of them, to produce before him upon oath, all such deeds, books, papers and writings in their possession or power, containing evi- dence pertinent to the issues and matters in reference, as may be proper and as may be desired by the parties; and said wit- nesses are to be examined upon oral or written interrogatories as the master shall direct. Dated this ........ day of ........ 19... 78. ORDER OF REFERENCE AS TO ALIMONY. (Title of court and cause.) It is ordered that the said defendant pay to the said com- plainant, or her solicitor, the sum of $100, in and towards de- fraying the costs and expenses of this suit, and that execution may issue therefor. 172 EQUITY PLEADING AND PRACTICE It is further ordered that this cause be referred to ........ ; one of the masters in chancery of this court, to take evidence and report his conclusion as to what would be a reasonable sum to be allowed for the support of the said complainant during this suit, and also for the support during this suit, of the children of the marriage now in her custody and charge. It is further ordered that said master report his recommenda- tion as to the times and manner in which the said sums should be paid to the complainant. Dated this ........ day of ........ 5 19-25 79. Master’s Novice oF Day For EVIDENCE. : On yetey ee beeen Please take notice, that by virtue of an order of reference entered in the above entitled cause, on the ........ day of a senseless , 19.., I will, at ten o’clock in the morning, on the ius tears day of ........, 19.., at my office, room ........, street, ........ ATM 2) aGhalace: £8 , in said county, fix a day to pro- ceed with the taking of testimony or evidence on such refer- ence; and on the day so fixed I shall proceed with the taking of such testimony or evidence. scoala 5 PRE noe eee CAy Of cece enny TO. (Signed) ....ccsanccsaves ‘“Master in Chancery of the ........ Court of ... cc55 County, ' 80. Master’s Supp@ana Duces TECUM. ’ State of ........ wal as : County of ........ § 4 In the name of the people of the state of ......... : OP ak. See eros aia ee You are hereby commanded to appear before me, at my office, | NOs ss4ee 2s street, in the city of ........ , said county, on ganda oct the ........ day of ........ A.D. 19.., at ......... o’clock .. M., then and there to testify the truth in a suit where- Desai , complainant, and ....... , defendant, and bring with you and then and there produce a certain (boak or writing, give . description of same) and all other books or writings which con- ; tain evidence pertinent to the issues in said cause; and this you: shall in no wise omit, under the penalty of the law. i Given under my hand and seal, this ........ day of ........ ,! A. D.19... Master in Chancery of the ........ Court of ........ County.° FORMS OF BILL 173 81. AFFIDAVIT OF SERVICE OF WRIT. State of ........ oN County of ........ ; ee , being duly sworn, on oath, says that he served the within writ by reading the same to and leaving a copy thereof WIth: oss: being the ........ within named ........ , on TGS stiscat ences BY OL) ec cccaas pp Oe oye ASAI weg xereiaie ll eriesscane 9 Ce See eee eee ener ene Sworn to before me this........ ay: OF casas ¢ Dee as (Seal). ° aaa bdcades ene Fees: Mileage $ ........ Service $ ........ Total $ ........ Note: For a witness subpcena, omit the part referring to bringing books and papers. 82. Master’s Report oF EVIDENCE AND COoNCLU- SIONS OF Fact anp Law THEREON. (Title of court and cause, and address to the court.) Report of ........ , Master in Chancery. Pursuant to an order of reference heretofore entered herein, I, the said master, do certify and report as follows: That upon due notice to all the parties hereto, and in due form of law, and having caused to come before me and be pro- duced all such witnesses and books and writings as the respec- tive parties desired and made known to me; witnesses were duly sworn and testified, evidence was heard and received, and pro- ceedings were had as more fully appears from the record and transcript of proceedings and evidence annexed as a part of this report, which said record and transcript, together with the exhibits therein mentioned, (and together with such depositions, affidavits and other documents as were lawfully filed in said cause and were produced before me as evidence), contains all the evidence submitted before said master, in said cause. And from the competent evidence so submitted and from the con- fessions and admissions expressed and implied in and by the pleadings in said cause, said master finds the following matters of fact to be true: (Here set forth the conclusions of fact found by the master.) Upon the facts aforesaid, and from the pleadings filed in said cause, the said master finds the following conclusions of 174 EQUITY PLEADING AND PRACTICE law: (Here'set forth the conclusions of law found by the master.) Said master therefore, upon the findings of fact and of law aforesaid, concludes that the equities of this cause are with the complainant, and that he is entitled to the relief prayed for in his bill, except as otherwise found herein. All of which is respectfully submitted. Dated this ........ day of ........ , A. D.19.. (Then annexed to the report follows the report, record and transcript of evidence.) 83. Masrer’s Report oF EVIDENCE. State of ........ WL. Se County of ........ . D7 th@ ie greteiues Court. In Chancery. Adams et al. v. Gen. No. 12,860. Brown et al. Report, record, and certificate of proceedings and evidence in the above entitled cause had and taken before ........ , master in chancery of said court in his office, suite ........ , Street, vdedve te ,on........,19.., at ........ o’elock ...., pursuant to an order of reference heretofore entered: Present ....... , Esq., representing the complainant; ....... ; Esq., representing ........ MEPS trie ken bexe : ‘‘I now file with the master a copy of the notice for this hearing showing signed receipt of notice by indevas ean and proving by affidavit delivery of notice to ........ I also file with the master, the master’s writ of subpeena with the endorsement showing lawful service of same on ........ and PELE ewe to testify at this meeting.’’ Master: Let them be stamped and placed on file. Whereupon Mr. ........ called ........ as a witness, who after being duly sworn by the master, testified as follows: Mr. ........: State your name, residence and occupation. A.—John Armstrong, 753 West Monroe St., Chicago, shoe mer- chant, ete., ete. (Here follows the testimony in the form of question and answer). ‘Whereupon: Mr. H. W. Rice, of Rice and Carter: If you are through with the direct examination, I will ask Mr. Armstrong a few questions upon cross-examination: Q.—Mr. Armstrong, please state who was present when the FORMS OF BILL 175 contract marked exhibit ‘‘D,’’ which I hand you, was signed? A.—Mr. Carter, Mr. Brown and myself. Etc., ete. (Here follows cross-examination, and then follows the re-direct examination. ) (Signed) JoHn ARMSTRONG. Subscribed and sworn to before me this 20th day of June, 1905. Master in Chancery of the ........ Court of ........ County, (Seal) Whereupon Mr. ........ called ........ as a witness, who, after being duly sworn by the master, testified as follows: VPS eccaresstane : State your name, residence and occupation. Ete., ete. (Signed and sworn to as above.) 84. MaASTER’s CERTIFICATE OF EVIDENCE. AT THE Enp or His Report or EvIpENCE. Ty ca ates , master in chancery of the ........ court of Se wee county, ..........., do hereby certify that each of the witnesses aforesaid, before testifying, was by me first duly sworn or affirmed according to law, to testify and speak the truth, the whole truth, and nothing but the truth, in relation to the matters in reference and in answering all questions put to them ; that the testimony of each of them was reduced to writing, and, after being read over by each of them, the same was duly subscribed and sworn to or affirmed by each of said witnesses, as shown by the several jurats thereto attached; and, where no such signatures and jurats or affirmations appear, the signa- tures and jurats or affirmations thereto were waived by all the parties. And I further certify that the foregoing record and transcript of the evidence of said witnesses, together with the exhibits here- inbefore referred to and attached, is a full, complete and true transcript of all the proceedings and evidence taken before me in said cause. Dated this ........ day of ........ , A. D.19.. Master in Chancery of the ........ Court of ........ County, State of ........ 176 * - HQUITY PLEADING AND PRACTICE 85. ‘ Masrer’s CERTIFICATE OF F'EEs. State of ........ toms County of ........ : In the ........ Court. In Chancery. Gen. No. ........ MASTER’S CERTIFICATE OF SERVICES, FEES AND CHARGES I hereby certify that I performed the following items of serv- ices and necessarily made the following expenditures under the special order of reference heretofore entered in the above en- titled cause, and that such services necessarily consumed the following amounts of my time: FEES FIXED BY STATUTE. I have taken and reported ........ folios of 100 words each, at 15 cents, ........ Ciena emet I hereby certify that a stenographer was necessarily employed and that said stenographer reported ........ folios of 100 words each ........ Bie eataniiave FEES TO BE ALLOWED BY COURT. (1) Time spent by master in hearing and granting mo- tions for continuance by complainant, ........ hours’ time at So nivogils: per hour ........ Be eedexes pais aiaae eee (2) Time spent ........ days, at $........ per day, iG ote eo hours, at $........ per hour, in hearing arguments, by complainant, ........ ee ; (3) After the report was made, time spent ........ days, ati Bircnvawies per day, ........ hours, at $........ per hour, in hearing and considering objections by defendant to the report herein, ........ Boies ateuntg (4) Timespent ........ days, at $....... per day, ....... hours, at $........ per hour, in reading briefs and authorities presented, in determining and formulating findings of fact, and in determining and formulating conclusions of law, and in draft- ing the report herein, ........ I respectfully ask the court to allow, tax and fix the above charges, or such other amounts as to the court may seem proper. Dated, this ........ day of ........ 5; AOL see eee eee ee eer eee epee teas FORMS OF BILL 177 The above charges and amounts are hereby allowed, taxed and fixed as costs, as and for the master’s fees and charges under the order of reference herein. ee we mw we ee we eee 86. OrpErR Directine MastEr’s FEE To BE Par. (Title of court and cause.) And now comes ........ , the master to whom this cause stands referred, ........ , and it appearing to the court that due notice has been given to the solicitors of complainant and de- fendant herein, on motion of said master. It is hereby ordered, adjudged and decreed that complainant A. and defendant B. are each primarily liable to advance and pay to said master one-half of his fees and charges, totaling tO Beene asig , heretofore allowed and taxed, and said complain- ant and said defendant are hereby ordered to pay to said master within five days the sums primarily due from them to said master as aforesaid, and this without prejudice to the final awarding of costs herein. If either of said parties fails to pay his respective share according to this order within five days, the other party may advance the defaulting party’s share; where- upon, and in case both parties default in respect to this order, the court will enter such further order and decree as may be just and proper under the circumstances. Dated this ........ day of ........ ,19.. 87. PLAN oF Mastmr’s ForECLOSURE REPORT. 1. Examine pleadings to see if bill is traversed. 2. Examine summons and returns therein for parties actually subject to the court’s jurisdiction for correct caption of report. 3. Study testimony and examine exhibits. 4. Dictate report—finding as facts only things proved by testumony or exhibits; facts not proved before master but con- fessed by default, can be included in ‘‘1i’’ herein. (a) Find facts as to note and interest notes as alleged in bill; if bill is slovenly drawn, find facts from original note. (b) Find facts as to execution, delivery, acknowledgment and recording of trust deed, as alleged in bill; if bill is slovenly drawn, from original trust deed or mortgage. (c) Find facts as to provisions of trust deed, either as alleged in bill, or quote from the trust deed. If quoted, preface the fol- lowing form: KE. P.—12 178 EQUITY PLEADING AND PRACTICE That said trust deed among other things contains the follow- ing words, figures and provisions: ce Always state provision as to release and waiver of homestead ; the bill often omits this. The provisions of the trust deed cited should cite from the T. D., also the covenants, if any are broken, penalties, if any are incurred, other rights, if any are violated, solicitor’s fees, etc, and the defeasance clause. Note: In most states a properly acknowledged conveyance like a trust deed or mortgage or certified copy there- of, is, without further proof of execution, prima facte evidence, and, of itself, proves all facts under a, b and c, above. (Ill. Stat. Conveyances, Sec. 20). It can be overcome upon proof sufficient to destroy this prima facie proof. (Wolcott v. Lake View B. & L., 59 Ill. App. 415.) (d) Find facts as to who is the legal owner of the principal and interest notes at time when bill was filed and up to time of report. Nore: Possession of note and mortgage is strong presumptive evidence of ownership. (e) Find facts as to payments by defendant. Note and mortgage are prima facie evidence of amount due. (f) Find facts as to defaults by defendant in failing to com- ply with provisions of trust deed. (g) Find facts as to expenditures by complainant, for taxes, insurance, etc., ete., on account of defaults therein by defendant, and find as to ‘‘cash advanced for abstract continuation in order to properly begin this suit,’? and whether justified by the provisions of the trust deed. (h) ‘‘That there is due from said....... to said....... on account of the provisions of said notes and trust deed and on account of the foregoing, the sum of $...... as appears from the following items: (Make tabular statement of amounts due.) Principal note No. 1 due Aug. 1, 1908 Be siheoes Interest thereon at ........ per cent. from........ TOsesemike = — eeeadecie Interest note due Feb. 11,1908. = ~— ...... Interest thereon at........ per cent. from........ TOvicccaaerie on y- | SGbaiwegs Interest note due Aug. 11,1907. = —...... Interest thereon at..... ‘...per cent. FORMS OF BILL 179 Jan. 7, 1908, cash advanced for taxes 1906 Interest thereon at........ per cent. from Jan. 7, 1908, to........ Feb. 10, 1908, cash advanced for insurance, Interest thereon at........ per cent. from Feb. 10, 1898, to........ Mar. 7, 1908, cash advanced for continuance of abstr. of title Interest thereon at........ per cent. from Mar. 7, 1908, to........ ecco ne see eee eee eee eee e we eee ee Total. $...... (NoTE: Some statutes require mterest to be calculated ac- cording to the ‘‘six per cent method,’’ a month being one- twelfth of a year and a day one-thirtieth of a month. III Stat. ‘* Interest.’’) ‘* Also the further sum of $........ incurred by said........ as his solicitors’ fees herein, which sum last aforesaid is the sum expressly provided for in said trust deed, and said master finds the same to be a just and customary fee for the services rendered by complainant’s solicitor herein; (or, if the trust deed provides for a ‘reasonable’ fee, ‘which sum said master finds from the evidence to be a reasonable charge for the services performed by the complainant’s golicitor’).’’ (1) Said master further finds and concludes that in law and in fact said complainant,........ has a lien on the premises aforesaid for the amounts found to be due him as aforesaid; that each and every material allegation in complainant’s bill, except as otherwise found in this report, is admitted by the pleadings to be true (or) is by default taken and confessed as true herein; that the equities in this cause are with said complainant........ , and that he is entitled to the relief prayed for in his said bill so far as the same is consistent with this report. Said master therefore recommends that the usual and regular decree of foreclosure and sale be entered: herein in accordance with this report. Dated this........ day of........ pO ass: ee 180 EQUITY PLEADING AND PRACTICE 88. PLAN oF Master’s Report or BuILDING AND Loan ASSOCIATION FORECLOSURE. Note carefully if evidence supports following findings: Finding that........ Association is a corporation organized and doing business under the law of ........ , that C. D. being a member of said association and the holder and owner of Be eas eal shares of the capital stock of said association, made, executed and delivered his certain........ bond (or agreement) in ‘‘words and figures as follows’’: (quote bond in full) and also executed and delivered the certain trust deed mentioned in said bond at the time and in the manner as set forth in com- plainant’s bill. Finding as to acknowledgment and recording of trust deed. That the trust deed, mentioned in said bond, among other things contains the following words and figures: (quote coven- ants, penalties and rights in question, also defeasance clause, release and waiver of homestead clause, solicitor’s fee clause, other expenses clause, etc.) That........ , at the time of filing the bill herein and up to this day was and is the legal holder and owner of said bond. That said C. D. made the payments mentioned in said bond until the........ day of........ 19 ; that the amount of dues paid on his shares of stock is $ ........ ; that said C. D. made default in the payment of the certain installment of dues, inter- est and premium aforesaid, which became due on the........ day of........ and in said default continues to this day. That on the........ day of........said association through its board or directors duly passed a resolution in words and figures as follows: (‘Quote resolution declaring default and amount due, for-’ feiture of stock, and authorizing suit.) That between (give date) the last day C. D. paid money as aforesaid and ...... (gwe date of resolution) ...... (give number) installments of premium and of interest became due to said association from C. D. Find facts as to defaults in the payment of taxes, and amounts, with dates, paid therefor by complainant association. Find facts as to defaults in the payment of insurance and the amounts, with dates, paid therefor by complainant association. If T. D. provides for specific recovery of money laid out for abstract of title, find that a continuation of abstract of title was necessary for purposes of this suit and the amount, with date, expended for abstract continuation. That the following are the by-laws of said association which determine and govern the withdrawal value of the shares of stock aforesaid: (quote by-laws.) That the withdrawal value of the stock aforesaid is $....... FORMS OF BILL 181 being $ ....... amount peid as dues and....... per cent. inter- est thereon according to said by-laws. That the following words and figures of the by-laws of said association determine and govern the assessment and collection of fines upon the capital stock of members of said association: (quote by-laws on fines, if fines involved in cause.) That fines amounting to $ ........ were duly and regularly assessed against said........ according to said by-laws. That on the ........ Gay? Of ascewas being the day when by the resolution aforesaid the stock aforesaid owned by said Shak setae was forfeited and reverted to said association, the membership of said C. D. ceased, and a legal relation of borrower and mortgage creditor superseded the contract relation set forth in the bond and trust deed aforesaid, and on said last mentioned day therefore the installments of interest and prem- iums falling due (quarterly or semi-annually, as provided in T. D.) mentioned in said bond and trust deed, ceased to fall due as before (because of said loss of membership) and only the statutory rate of interest, 5 per cent., can thenceforward be charged to C. D. on the balance remaining due said associ- ation after applying all credits, including the withdrawal value of said stock on the day last mentioned. That no share of the capital stock aforesaid has matured or reached the par value of One Hundred Dollars. That there is due, owing and payable to said association from said C. D. on account of the bond and trust deed aforesaid and on account:of the foregoing the sum of $ ........ as appears from the following items of debits and credits. Debits. (Date of resolution) Principal loan Bo iets Sy ie ‘« 5 Int. Installments in arrears ——s ne es ee ‘* 5 Premium Installments in arrears ——si ne - ee ‘« Fines assessed as afore- said eee Taxes V.neee Insurance ——————sis i ee Credits. Dues paid ......... Bi eae Int. according to by-laws .......... G okies (Date of resolution) Balance due Boe oe es 182 EQUITY PLEADING AND PRACTICE Interest thereon at 5 per cent. to (date of report.) Also the further sum of $200 as and for complainant’s solici- tors, ete., etc. (See plan of ordinary foreclosure report.) Note: Building and Loan Association foreclosure bills are seldom correctly drawn. The plan of the master’s report above stated will serve to point out what allegations the bill should contain. 89. Notice oF Drart oF REPORT. (Title of Court and cause.) MLO! Sse ese vie! , solicitor for complainant, and ........ solicitor for defendant: Please take notice that I have prepared a draft of my report in the above-entitled cause, and objections thereto may be filed at my office on or before ........ 5 these gnceks day of ........ A. D. 19...., which will be the. last day for filing objections to the same; ; and that I shall oe on any objections HED, Otivvesieren W xe oores Ac Ds 19s sony BE arias o’clock ...- M., at which time and place you may oo if you see fit. . Dated shi Wis Bue aL ee oe ee pare es 5 19sec Master in Chancery of the ........ court of ........ County, State of ........ 90. Brier Succestine Finpines ror Master’s REport. (Title of court and cause.) Before .............0. Master in Chancery Brief of .......... Solicitor for .......... ‘*On behalf of ........ , complainant (or defendant) in the above entitled cause, we respectfully contend that the plead- ings, proceedings, orders of record, exhibits and evidence, in the above entitled cause, will justify said master in including in his report, among other findings of fact, the following: “1. That (here state finding of fact substantially as alleged in the pleading, and after the finding, cite all the exhibits or pages containing evidence pro and con on the finding.) “2. That, ete. ‘We further respectfully contend that upon the facts as aforesaid the master should find the following conclusions of law: FORMS OF BILL 183 “1. That, ete. (State finding of law and cite authorities.) **Dated this ........ day of ........ (Signed) ‘Solicitors for Complainant. (Or Defendant.) ’’ 91. OBJECTIONS AND EXCEPTIONS TO THE MASTER’S Ruuina Upon TEsStiMony, BEFORE THE Master Fines His Report. State of ........ ‘ County of ........ on Ti the 4 eave oe eee court. Detia Seliascsihuh a term, A. D.19.... A. B. v. Cc. D. In Chancery. Gen. No. ........ OBJECTIONS AND EXCEPTIONS TO THE MASTER’S RULING UPON EVIDENCE. And now comes ........ , defendant (or complainant) in the above-entitled cause, and brings before this court the follow- ing objections and exceptions upon the following testimony and evidence had and taken before master in chancery, ........ , to whom this cause stands referred. (1) Test. page 26: (Mr. Williams examining W. F. Brown, for complainant.) Q. State in substance the terms of this contract. Mr. R.: On behalf of the defendant, ........ , I object, upon the ground that this contract, being in writing, the writing itself is the best evidence of its terms. The Master: Let him answer. Mr. R.: Exception. (2) Test. page 39: Mr. Williams examining Mrs. Alice Temple, for complainant.) Q. Did he acquiesce in your proposition? Mr. R.: I object on behalf of defendant, ........ , upon the ground that the question asks for a conclusion. The best evidence is either the contract in writing or the actual language used in such parts of the contract as were oral. The Master: Let her answer. Mr. R.: Exception. (3) Ete Wherefore, said ........ , defendant in the above-entitled cause, prays the court to consider said objections and excep- tions upon the evidence, and to enter an order stating what 184 2 EQUITY PLEADING AND PRACTICE objections and exceptions, as made on behalf of said defendant, are allowed, and what objections and exceptions are overruled, and directing the master to proceed to take such further testi- mony as this court may deem proper, and directing the master to disregard, in making up his report, such testimony as this court may rule to be incompetent or irrelevant, and this de- fendant prays for such further orders and directions as this eourt may deem proper to make. Dated this ........ day of ........ SN ie kss (Signed): are auwessSriee ease bd Sea ES Sale Men Poise eas Sct ob ae OE Beda 92. OBJECTIONS TO MASTER’s REPORT. State of ........ ot ee County of ........ : In the: seco migeeseass court. In Chancery. Gen. No. ........ A. v. B. “‘Now comes ........ , complainant (or defendant), and ob- jects to the master’s (first) draft of his report in the above entitled cause, dated the ........ day of ...22224 “1, Because the master on page ...... of his report has found that (state the finding of fact.) ‘‘Whereas, said master should have found from the pleadings and evidence that (state the finding of fact as objector thinks i should be found). “‘One ground of objection, among others, being that (said master’s finding is contrary to the weight of evidence and con- trary to confessions under the pleading; or state other objec- tion). We respectfully call the master’s attention to the fol- lowing, being all the pages of evidence, for the master’s finding, viz.: pages 27, 31; and to the following, being all the pages in favor of the finding above requester for us, viz. pages 42, 47, 49. “2. Also because the master has omitted to find, anywhere in his report, that (here state the finding of fact which was omitted by the master, and which the party objecting deems tt essential to his suit, for the master to have found). The ground of objection, among others, being that (the finding is material to complainant’s case and is justified by the pleadings and the evidence). See testimony pp. 17, 24. “*3. Ete. ““Wherefore, said objector prays the master to modify and amend the said draft of his report in accordance with the ob- FORMS OF BILL 185 jections above stated, and in accordance with the pleadings, proceedings, orders of record, and exhibits and evidence intro- duced. ‘‘Dated this ........ day of ........ (SISTER. acs aoe San aes da 2 “Solicitor for Complainant (or Defendant).’’ 93. EXxceprions To MAstTer’s REport. (Title of court and cause.) And now comes ........ , and in open court makes and takes the following objections and exceptions to the report: of eyelet , master in chancery, to whom this cause stands re- ferred by an order heretofore made herein; which report is dated the ........ day of ........ , A. D.19...., and was filed of record herein on the ........ day of ........ Lees (1) For that the master, on page ........ of his said report, has found that (here insert the finding and ground of excep- tion), whereas he should have found from the evidence and pleadings, that (here state finding which should have been made). See evidence pages 16, 27, 89. (2) For that, ete. Wherefore, said ........ , excepts to said report, and appeals to the judgment of the court, and prays the court, upon con- sideration thereof, to enter an order stating what exceptions are allowed and what exceptions are overruled, and either in said order making findings or conclusions other than or addi- tional to those contained in the report, or by said order refer- ring the report back to said master directing him to file a new and amended report and to make the certain other or ad- ditional findings or conclusions specified by the court in such order, together with such further findings and conclusions as may be consistent with those specified in the order, and con- sistent with the rulings of the court upon exceptions ruled on by the court, and containing such other directions as may be equitable. Dated this ........ day of ........ » Eee C. D., Defendant. G. F., Solicitor for Defendant, C. D. 94. ORDER ConFirMiINnG Master’s REPorT. (Title of court and cause.) This cause coming on this day to be heard on the report of hearers , one of the masters in chancery of this court, to whom the above-entitled cause was duly referred, which said report was filed in this court on the ........ day of ...... aiey As. D. 1386 | EQUITY PLEADING AND PRACTICE 19...., and upon the exceptions of the defendant, C. D., to said report, and ‘the complainant being present in open court by G. H., his solicitor, and the defendant being present in open court by J. E., his solicitor, and the court having heard the arguments of the solicitors for the respective parties in support of and against the allowance of said exceptions and the con- firmation of the said report, and having considered the same, and being fully advised in the premises, It is ordered that the said exceptions, and each of them, be and the same are hereby overruled, and that the said report of the said master be and the same is in all things approved and confirmed. 95. DECREE IN ForECLOSURE CASE. (CONTAINING OrpvEr ConFirmine Master’s REPoRT.) In the ........ Court. In Chancery. C. D. This day came the complainant by ........ , solicitor, and bias sia the defendant ........ And this cause coming on now to be heard upon the bill of complaint of ........ heretofore taken as confessed by and against the defendant (name of defend- ant’s defaulted) the answer of the defendant ........ the answer of the ........ defendant ........ DY eeeeuthe guardian ad litem, and the complainant’s replication to said answer, and upon the report filed herein on the ........ day Of s2decnus 19...., and dated ........ WO ey OE, walicieheats , the master in chaneery to whom this cause was, by order of this court, heretofore referred to take proofs herein and report the same to this court, with his conclusions of fact and of law upon the evidence; and upon proofs and exhibits herein made in open court ........ On motion of complainant’s solicitor, it is ordered that said master’s report be, and the same is hereby in all things approved and confirmed, including his fees and charges, which are hereby allowed as certified by the master, and taxed as costs herein. And the court, being fully advised in the premises, finds that the material allegations in said bill of complaint ........ have been proved as in said bill set forth, and are true, except as otherwise found by this decree, that the equities of this cause are with the complainant, and that there was and is due to said complainant (name) .......... , from (mames) ......... the sum of ($........ Yo eerie die dollars, being the amount found FORMS OF BILL 187 due by said master’s report, as more fully appears from the fol- lowing items: (State items), together with interest at five per cent per annum on said total sum from the date of said master’s report. Also the further sum of ........ dollars, as and for complainant’s solicitor’s fees herein ........ And the court further finds (state 1. findings of fact; 2. find- ings of law.) Include findings as to jurisdiction over defend- ants and as to which defendants, if any, are personally liable to pay said sums. It is therefore ordered, adjudged and decreed that unless the defendant ........ , or some of the defendants, within two days from the date of the entry of this decree, pay or cause to be paid to said complainant said sum of ........ dollars and phe beahe sears cents, with interest on $ ........ (being said total less the said sum for solicitor’s fees) at the rate of five per centum per annum from the date of said master’s report to the day of such payment, and pay to the officers of this court the taxed costs in this cause; that the premises hereinafter and in said bill of complaint described, or so much thereof as may be necessary to pay the amount so found to be due the com- plainant with interest thereon, and the costs aforesaid, and which may be sold separately without material injury to the parties in interest, be sold at public vendue to the highest and best bidder for cash by ........ , a master in chancery of this court, at ........ street, in the city of ........ , In the county and state aforesaid; that said master give public notice of the time and place and terms of such sale, by publishing same at least once in each week for three successive weeks in some secu- lar newspaper of general circulation, published in the ........ OF tute cei , county of ........ and state of ........ , and that the complainant, or any of the parties to this cause, may be- come the purchaser at such sale; that upon such sale being made, said master execute and deliver to the purchaser or pur- chasers a certificate or certificates of sale, evidencing such pur- chase, describing the premises purchased, the amount paid therefor, or if purchased by the complainant, the amount of EArt bid, and the time when such purchaser or purchasers will be entitled | to a deed for said premises, if the same shall not be redeemed according to law, and that within ten days from such gale he file a duplicate of such certificate or certifi- cates in the office of the recorder of said ........ county. That said master, out of the proceeds of said sale, retain his fees, disbursements and commissions according to law, and pay to the officers of this court their costs in this cause, ‘including pecs gosernngs hereby taxed as costs for said master’s reasonable fees and charges under the order of reference herein, and out of the remainder pay to the complainant the amount by this decree found to be due ........ with interest thereon at the 188 EQUITY PLEADING AND PRACTICE rate of five (5) per cent per annum from the date of said master’s report to the date of such sale; and if such remainder shall not be sufficient to pay said amount and interest, that he apply the same to the extent to which it may reach in satisfac- tion thereof, and specify the amount of the deficiency in his report of such sale; and if said remainder shall be more than sufficient to pay said amount and interest, that he hold the surplus subject to the further order of this court; and that he take receipt from the respective parties to whom he may have made payments as aforesaid, and file the same with his report of said sale in this cort. It is further ordered, adjudged and decreed, that upon the expiration of the statutory periods of redemption after the date of such sale, if the premises so sold shall not be redeemed ac- cording to law, the defendants and all persons claiming under them, or any of them, since the commencement of this suit, be forever barred and foreclosed of and from all right and equity of redemption or claim of, in and to said premises or any part thereof; and in case said premises shall not be redeemed as aforesaid, then upon the production to the master, or his succes- sor, of the said certificate or certificates of sale by the legal holder thereof, said master shall make, execute and deliver to the. legal holder of such certificate or certificates a good and sufficient deed of conveyance of said premises; and that there- upon the grantee or grantees in such deed, or his or their legal representatives or assigns, be let into possession of said premises; and that any of the parties to this cause who shall be in posses- sion of said premises or any portion thereof, or any person who may have come into such possession under them, or any of them, since the commencement of this suit, upon the production of said master’s deed of conveyance, and a certified copy of the order of court confirming said sale, surrender possession of said premises to said grantee or grantees, his or their represen- tatives or assigns. The premises by this decree authorized to be sold are situated in the ,....... OF io egies county of ........ and state of sera tees and described as follows, to-wit: ........ Examined and approved by me this ........ day Of assis ce Oueereas 190.. FORMS OF BILL 189 96. MEMORANDUM OF TIME AND PLACE OF SALE AND OF CasH REQUIRED OF COMPLAINANT IF HE Bos. Sale, ........ at 11 o’clock A. M., at ........ street. SS. In the ........ Court. In Chancery. DECREE, INTEREST AND COSTS OF SALE. Decree: Debti..5 63s. Wade Pa hiwen se onesies Geddes $ Interest thereon at 5% from date of master’s report to Cate Of (Sal@* sii ak wr eee eke We eee tet eee $ Solicitor’s fee “cca saccscd ean ieea cia wen eee ve meaneuawl $ Taxed costs (including Master’s report, $...... Jagan $ Master’s fees, disbursements and commissions: Preparing notice of sale .............0000c00eee $ Publishing notice of sale ..................000. $ Commissions on sale ............. eee e ee eee $ Certificate and duplicate of sale .....2.......... $ Recording duplicate certificate ................. $ Report of sale and distribution ................ $ $ Total, $ Cash at sale for master if bid in by complainant: PREDOME as crescent ears $ Expenses and commissions.. $ $ 97. Masrer’s Report or SALE AND DISTRIBUTION. (Title of court and cause.) Foreclosure To the honorable judges of said court, in chancery sitting: Pursuant to a decree entered in the above entitied cause on the sehen ates day of ........, A. D.19.., I, ........, a master in chancery of said court, respectfully report that more than ...... days having elapsed after the entry of said decree, and said de- fendant not having paid the whole or any part of the money by said decree required to be by him paid, I duly advertised, accord- ing to the law and to said decree, the premises in said decree and hereinafter described, to be sold at public auction to the highest 190 EQUITY PLEADING AND PRACTICE and best bidder therefor, for cash, at the hour of 11 o’clock in the forenoon of ....... 5 the: 22s 0: day of ....... A.D. ....... le: sericea: , on the ground floor of the building known as No. ........ , in the city of ........ in said county, by causing a notice containing the title of said cause, the names of the parties thereto, the name of the court wherein said cause was pending, and a description of the premises to be sold, and a statement of the aforesaid time, place and terms of said sale, to be published for three successive weeks immediately prior to said day of sale, to-wit: three times in ........ , a public secular newspaper, of general circulation, printed and pub- lished every day, in the city of ........ , in said county. The day of the first paper containing said notice was the ........ day of ........ gE De 4 mia gos teste , and the date of the last paper containing said notice was the ........ day OF sacks , A. D. oe Shae ; a certificate of which publication is hereto attached, Marked Exhibit A. At the time and place so designated by said advertisement for said sale, I attended to make said sale; and I offered said prem- ises for sale at public auction to the highest and best bidder for cash. I first offered each lot of said premises for sale separately, and there were no bids upon said offer. I next offered any num- ber of said lots less than the whole of said premises for sale in groups to suit bidders, and there were no bids upon said last- named offer. I then offered said premises for sale entire; where- upon ........ offered and bid therefor the sum of ........ dollars ($........ ), and that being the highest and best bid for cash therefor offered, I struck off and sold to said bidder for said sum of money the said premises which are situated in the county of ........ y And: Brats OF ass soe , and described as follows, to-wit: (Describe premises.) = wise. The amount aforesaid realized from the sale aforesaid. I have allowed, distributed, credited, paid and retained as fol- lows: (Allowed complainants (towards or in full of amount due on decree ($........ ) and interest thereon ($........ ) aca (Allowed) complainant in full of taxed costs............ $ (Allowed) complainant in full of solicitor’s fees......... $ Retained by master for advertising sale............... $ Retained by master for publishing notice of sale....... $ Retained by master for commissions on sale........... $ Retained by master for certificate of sale and duplicate. .$ Retained by master for recording duplicate certificate. .$ Retained by master for report of sale................. $ The receipts for said payments are hereto attached as a part of this report and marked ‘‘ Exhibits B, C, and D.”’ I have executed and delivered to ........ purchaser at said sale, the certificate of sale directed by said decree, and by law, FORMS OF BILL 191 to be executed, and have filed in the office of the recorder of deeds of said county the duplicate of said certificate. In conclusion, I report that the proceeds of said sale were suffi- cient to pay the amount found to be due to said complainant All of which is respectfully submitted. Dated this ........ day of ........ Ons Master in Chancery of the ........ Court of fecenti aia G ounty, 98. Masrer’s Receipts ror Moneys. (Title of court and cause.) Exhibit B. ote Bo oe ee ,19.. Received of master in chancery of said court ........ dollars, on account of amount due under decree herein, together with in- terest thereon. ed Exhibit C. anatase etc tiaras 1 9y., Received of master in chancery of said court ........ dollars, for solicitor’s fees, due under decree herein. Exhibit D. Wiad Roa hae ,19.. Received of master in chancery of said court ........ dollars, on account of complainant’s taxed costs herein. eee werner eee eeece ey 99. ORpER CONFIRMING SALE AND DEFICIENCY DECREE. (Title of court and cause.) And now again come said complainants, by said ........ ; their solicitor, and this cause comes on to be further heard upon the report of sale by ........ , master in chancery, filed herein On: the: aaa eek day of 2 nec. , A. D. 19.., and thereupon, on motion of said complainant’s solicitor, it is ordered and de- creed that said report and sale, be, and hereby is fully approved and confirmed. And it appearing to the court from said report that the said master has, as required by said decree, retained out of the pro- eeeds of such sale his fees, disbursements and commissions on said sale, amounting to ........ dollars ($........ ), and paid to complainants their costs in this suit, amounting to ........ dollars ($........ ), and their solicitor’s fees, amounting to 192 EQUITY PLEADING AND PRACTICE Gite tee dollars ($........), and filed their receipts therefor with his report, and that after deducting ........ dollars (Beemer dass ), the amount so retained and paid out, there re- mained to be applied upon the amount due to said complainant site nsts , under said decree, the sum of ........ dollars (Sarees ); and the said master producing the receipt of eae , the said complainant, for said last-named sum, it is ordered that the same be, and it is, credited on said decree as paid to said complainant on said ........ day of ........ , A. D. 19... And it further appearing to the court, from said report, that the proceeds of said sale were insufficient to pay the amount adjudged to be due to said complainant, and that there is a balance due to said complainant ...... .. over and above such proceeds of sale, of the sum of ........ dollars ($........ ); now, therefore, it is ordered, adjudged and decreed by the court that the said ‘complainant amt have and recover of and from the said defendants ........ , and upon whom personal service was had in this cause, and who are personally liable for the payment of said debt, the said last-mentioned sum of ....... dollars ($........ ), and that the complainant ........ have execution therefor, as upon a judgment at common law. 100. Master’s CERTIFICATE OF SALE. (Title of court and cause.) gis webh aherantzee , master in chancery of the ........ court of tsk Sees aac county, ........, do hereby certify, that pursuant to a decree entered on file ecetcace: day of ........ A. D. 19.., by the said court in the above entitled cause, I duly ad- vertised, according to law, the premises hereinafter described, to be sold at public vendue, to the highest and best bidder for eash, at the hour of ........ o’clock in the forenoon, on the Sg aseaenae Gay Of s2cu.080. 5A. Di 9s.) Atco ee NO? te aeons street, in the city of ........ ,insaid ........ county. That at the time and place so aforesaid appointed for said sale, I attended to make the same, and offered and exposed said premises for sale at public vendue, to the highest and best bidder for cash: Whereupon ........ offered and bid therefor the sum of dogneesueurs ; and that being the highest and best bid offered there- for I accordingly struck off and sold to said bidder, for said sum of money, the said premises, which are situated in the ........ county of ........ and state of ........ , and are described as follows, to-wit: ........ And I do further certify that the said ........ legal repre- sentatives or assigns, will be entitled to a deed of said premises on the ........ day of ........ A. D. 19.., unless the same shall be redeemed according to law. FORMS OF BILL 193 Witness my hand and seal, this ........ day of ........ A.D.19.. Master in Chancery of the ........ Court of ........ County, State of ........ 101. Master’s CERTIFICATE OF REDEMPTION. Whereas, the following described premises, situated in the county of ........ and state of ........ , Were on the ........ day Of necaese , A. D. 19.., exposed for sale at public vendue by the undersigned, one of the masters in chancery of the Matar court of ........ county, in pursuance of a decree made and entered by the ........ court of ........ county, on the ........ day: Of cece as A. D.19.., in a certain cause then pending therein on the chancery side thereof, in which peers defendant ........ And, whereas, at said time ........ , being the highest and best bidder.. therefor, became the purchaser.., for the sum of sates of said premises, to-wit: ........, and received from the undersigned a certificate of such sale, stating the said pur- chaser would be entitled to a deed of said premises on the cit eh 9 9048 day of ........, A. D. 19.., unless sooner redeemed. And, whereas, twelve months have not elapsed since said sale, And, whereas, ........ , being interested in said premises has this day paid to the undersigned, as master in chancery, the sum of ........ , being the amount of said sale with interest thereon, and the further sum of ........ for taxes and assess- ments paid by the holder of said certificate of sale on said prem- ises, with interest thereon as and for the redemption of said premises from said sale. Now, therefore, the undersigned hereby certifies that said premises have been this day redeemed from said sale by ........ in accordance with the provisions of the statute in such case made and provided. Given under my hand and seal this ........ day of ........ , A.D. 19.. Master in Chancery of the ........ Court of ........ County. 102. Master’s DEED. This indenture, made this ........ day of ........ , A. D. 19.., between ........ , master in chancery of the ........ court of ........ county, in the state of ........ , party of the first part, and ........ of county of ........ and state of party of the second part, witnesseth: ; Whereas, in pursuance of a decree entered on the........ day B. P.—13 194 EQUITY PLEADING AND PRACTICE OF 4 nesenus , A.D. 19.., by the ........ court of said ........ county, in a certain case then pending therein, on the chancery side thereof, wherein ........ , complainant.., and ........ defendant.., the said master in chancery duly advertised, ac. cording to law, the premises hereinafter described, for sale at public auction ‘to the highest ........ bidder, ........ at the hour of ........ o’clock, in the ........ noon, on the ........ day of ........ , A. D. 19. 65 at Mm ccsevees in said ........ county. And, whereas, at the time and place so as aforesaid appointed for said sale, the said master in chancery attended to make the same, and offered and exposed said premises for sale at publie auction, to the highest ........ bidder, ........ and thereupon ........ offered and bid therefor the sum of ........ dollars ........ (Scceoes ); and that being the highest ........ bid offered said master in chancery accordingly struck off and sold to said ........ for said sum of money, the said premises, and did thereupon sign, seal and deliver to said ........ the usual master’s certificate therefor : And, whereas, said premises have not been redeemed from said sale: Now, therefore, in consideration of the premises the said party of the first part doth hereby convey unto the said party of the second part ........ heirs and assigns, the said premises, which are situated in ........ county of ........ and state OF wccsee vas , and described as follows, to-wit: To have and to hold the same, with all the appurtenances thereunto belonging, unto the said party of the second part, Liab ea heirs and assigns, forever. Witness the hand and seal of the said party of the first part, the day and year first above written. syaiets aarhaes ewes Ass [SBAL. | Master in Chancery of the ........ Court of ........ County. State of ........ : County of ....... em I, a notary public in and for the said ........ in the state aforesaid, do hereby certify that ........ , master in chan- cery of the ........ court of said ........ county, who is personally known to me to be the same person whose name is subscribed to the foregoing instrument, appeared before me this day in person, and acknowledged that he signed, sealed and de- livered the said Instrument as his free and voluntary act, as such master in chancery, for the uses and purposes therein set forth. Given under my hand and notarial seal, this ........ day Of sears , A.D. 190. Notary Public. FORMS OF BILL 195 108. MAstTER’s REPoRT IN PARTITION SUIT. (Title of court and cause.) To the honorable judges of said court, in chancery sitting: Pursuant to an order of reference heretofore entered herein, said Master reports as follows: That, upon due notice to all the parties hereto, and in due form of law, parties were present, witnesses were duly sworn and testified, evidence was heard and received, and proceedings were had, as more fully appears from the transcript of pro- ceedings and evidence annexed as a part of this report; which said transcript, together with the exhibits therein mentioned, contains all the evidence submitted before the master in said cause; and from the competent evidence so submitted, and from the confessions under the pleadings in said cause, said master finds the following matters of fact to be true: That— That—ete. ete. (If the partition bill prays only for general relief master should make following recommendations as a guide for the court’s next order). Said master therefore recommends that the court appoint three commissioners, not connected with any of the parties herein, either by consanguinity or affinity, and entirely disin- terested, to make partition of said premises above described; that such commissioners each take and subscribe an oath or af- firmation fairly and impartially to make partition of said prem- ises, according to the rights and interests of the parties herein, as found above by said master and as may be declared by the judgment of the court, if the same can be done consistently with the interests of the parties; or, if the same cannot be so divided without manifest prejudice to the parties in interest, that such commissioners will fairly and impartially appraise the value of each piece of the premises aforesaid, and a true report make to said court. Said master further recommends that such commissioners shall go upon said premises, and if the same are susceptible of division they shall make partition thereof, allotting the several shares to the respective parties entitled thereto as aforesaid, quality and quantity considered according to their respective rights and interests, as may be adjudged by said court, designat- ing the respective shares by metes and bounds, or other proper description, and that such commissioners may be permitted to employ a surveyor, with necessary assistants, to aid therein; and if the premises aforesaid are not susceptible of division with- out manifest prejudice to said parties in interest, they shall value each pieee separately. Said master further recommends that such commissioners 196 EQUITY PLEADING AND PRACTICE make report in writing, signed by at least two of them, showing what they have done, and, if they shall have made a division, describing the premises divided and the shares of each party by metes and bounds, or other proper description; or, if they find that said premises cannot be divided, they shall so report, and shall report their valuation of each piece separately. Said master further recommends that if the whole or any of the premises aforesaid sought to be partitioned cannot be di- vided without manifest prejudice to the said owners thereof, and the commissioners appointed to divide the same shall so report, the court shall order the premises so not being susceptible of di- vision to be sold at public vendue, upon such terms and notice of sale as the court shall direct, for not less than two-thirds of the total amount of the valuation of such premises so not susceptible of division. All of which recommendations are in accordance with the provisions of the statute in such case made and provided. All of which is respectfully submitted this ........ day of Master in Chancery of the ........ Court of ......-- County, 104, Master’s Report oF PARTITION SALE. (Title of court and cause.) REPORT OF PARTITION SALE BY ........ MASTER IN CHANCERY. To the honorable judges of said court, in chancery sitting: Pursuant to a decree made and entered by said court in the above entitled cause on the 9th day of July, A. D. 1900, I, eee , master in chancery of said ........ court, respect- fully report that, in accordance with said decree, I duly adver- tised the premises in said decree and hereinafter described to be sold at public auction to the highest and best bidder for cash, and upon the terms and conditions set forth in said decree, at 2b dae sens , No, ........ street, in the city of ........, county of sober ears , and state of ........, at the hour of eleven o’clock in the forenoon, on ........ g GNC! vere acaatens day of .......... ; A. D.19.., by causing a notice containing the title of said cause, the names of the parties thereto, the name of the court in which said cause was pending, a description of the premises to be sold, and a statement of the aforesaid time, place, terms and condi- tions of sale, to be published for three successive weeks prior to said sale in the ‘‘........ ,’ a secular newspaper of general cir- culation in said county, published in said county every day ex- cept Sunday, the date of the first publication thereof being the te day of ........, A. D. 19..; the date of the second publication thereof, being the ........ day of A. D. FORMS OF BILL 197 19..; and the date of the third publication thereof being the Sialerabetecdle day of ........, A. D. 19..; a certificate of which publication is hereto attached as a part of this report and is marked ‘‘ Exhibit A.”’ At the time and place designated as aforesaid for said sale, I attended to make the same, and offered said premises for sale at public auction to the highest and best bidders for cash there- for, and upon the terms and conditions set forth in said de- cree. And I first offered each of said lots for sale separately and singly, making note of each amount offered for each single lot; and the sum total of the several bids upon said last-named offer by said master was not sufficient to realize and fulfill the amount and terms set forth in said decree. I then offered the lots of said premises for sale singly and in groups to suit bid- ders; whereupon, ........ offered and bid the sum ‘of ........ (Siege sscs ) for lot ........ in block ........ of said prem- iseS; ........ offered and bid the sum of ...... dollars (Pivewcees ) fOr IO tivce dees in block ........ , of said prem- ises; etc. And the total of said last mentioned bids amounted I next offered said premises for sale in any groups or com- binations of lots less than the whole of said premises, and there were no bids upor: said last-named offer, except the bids as set forth as aforesaid. I next offered said premises for sale entire, and there were no bids upon said last-named offer. And the bids above specified being the highest and best bids offered for said premises, I struck off and sold to said ........ , for said sum of ........ joundred ........ (Bis ores tas 5 AOU: cache aie in block ........ in (ete.). And I also struck off and sold to said ........ for said sum OF S$ pcecee sx pc lOti ge ew eee: (ete.). And said master further reports that said purchasers have paid said master the amounts of their respective bids, condi- tional, however, upon the confirmation by this honorable court of said master’s report of sale herein, and upon receiving from said master their respective and proper deeds of conveyance of the premises respectively so sold to them as aforesaid; which said deeds of conveyance shall be in accordance with the terms and conditions set; forth in said decree. All of which is respectfully submitted, this ........ day of Ruse pA De wea wiiees ore eeeeas 198 EQUITY PLEADING AND PRACTICE 105. OrpvER CONFIRMING Master’s REPORT OF Par- TITION SALE AND DirectinG DstRIBUTION. (Title of court and cause.) The report of ...... , master in chancery, appointed by a former decree of the court herein to make sale and to carry into effect said former decree and make report of his proceed- ings, having been filed in this court on the ........ day of sigeet sted , A. D. 19.., and no objections having been filed thereto up to this date, and the court, having examined said report, doth find that the said master has in every respect proceeded in due form of law and in accordance with the terms of said decree, and that said sale was fairly made; and the court, be- ing fully advised in the premises, doth order, adjudge and de- cree that the proceedings, sale and report of said master be and the same are hereby approved and confirmed; and it is further ordered that the said master exectite and deliver to the said ........ purchaser at said sale, a proper deed of con- veyance of the premises so sold; and that out of the proceeds of said sale said master retain his commissions and fees as fol- lows: Report upon the issues .......... PE ase eat lepieeieetao aes $ Preparing notice of sale ................. Pa Nea veinaanesa tae Publishing notice of sale ...............5 (ute sae euno-wicts Salesroom fee, imposed by decree ......... onlays iaeaee Commissions on sale ...........00eecaeeee igeBis Bader RRS Report of sale. -neigseca dict ath erates Gusce aiasaceug sie bee osc Report of distribution ........... 20... cee cee ce eee ees DeOd.) cause ce sedigs even Sao oer eed Hoes 4 ae Melos Total and said master shall distribute the residue of said moneys be- tween said parties as follows: To complainant’s solicitor the sum of.................. $ To the three commissioners heretofore appointed herein each the sum of $10.00..............0 00. cece eee 30.00 To complainant, ........ for sums advanced for taxed COSTS. ja siedia vemaGe ett eanied wh wee DoMlayas girhaeecs PREMISES sats hacer, a bike one wale ne dee ate S DOr ace dateac , on account of her 2/80 interest in and to the premises sold ............ cece ccc cece cee enees To said ........ , on account of her 39/80 interest in and to the premises sold xia: te ws ocea Wes haieematere To said ........ , on account of her 39/80 interest in and to the premises sold .......... ccc cece cece ee eeees FORMS OF BILL 199 Said master is directed to take and file with his report the receipts for said payments. Dated this ........ day of ........ , 19.. Ce ey 106. Master’s Report or DISTRIBUTION IN PaRTITION SUIT. (Title of court and cause.) REPORT OF DISTRIBUTION, ........ , MASTER IN CHANCERY. To the honorable judges of said court, in chancery sitting: Pursuant to a further order entered in the above entitled cause on the ........ day of ........ , 19.., whereby the master’s re- port of sale filed in this court on the ........ day of ........ 19.., was approved and confirmed and by which order said master was directed to execute and deliver to ........ , the purchaser at said sale, a proper deed of conveyance of said premises, and by which order, also, said master was ordered to make distribution of the proceeds of said sale and take receipts therefor, said master reports as follows: That the amount paid by said ........ for the premises was gies hates dollars ($........), which said sum said master has distributed as follows: Retained by master as commissions and fees: Report upon the issues............ $ Preparing notice of sale............ Publishing notice of sale........... Salesroom fee imposed by decree.... Commissions on sale............... Report Of sal. ois ce. secs ceseaeees Report of distribution............. PC OUY je -2e SF cesahatnata tae otriecs eae duns $ Paid Commissioners’ fees............ 0. cece ee eee Paid complainant, ........ for sums advanced for CAREC COSTS ces oe ersaara nieces serail le eeela Aah $ Paid and delivered to ........ on account of her dower in said premises................0eeee $ Paid and delivered to ........ on account of her 2/80 interest in the premises sold............ $ Paid to ........ on account of her 39/80 interest in the: PreMISES SOLA. aie oa esi eae wise ewe owe aes $ Paid to .....-4. on account of her 39/80 interest in the premises SOld....... cece eee cece eee ees 200 EQUITY PLEADING AND PRACTICE The receipts for said payments are hereto attached as a part of this report, and are marked, respectively, Exhibit A, B, C, D, E, F and G. ; Said master reports that he has executed and delivered to ieee es purchaser at said sale a proper deed of conveyance of said premises. All of which is respectfully submitted this ........ day of sleek hake Dus Master in Chancery of the lerieakas Court 107. RESTRAINING OrnpER PENDING APPLICATION FOR INJUNCTION. (Title of court, and of cause.) Whereas, in the above cause, a motion for the issuance of a preliminary writ of injunction has been duly filed, the hear- ing thereof being fixed for the ........ day of ........ Oa and it having been made to appear that there is danger of irre- parable injury being caused to complainant, before the hearing of said application for the writ of injunction, unless the said defendants are, pending such hearing, restrained as herein set forth, therefore complainant’s application for such restraining order is granted (if security is required, then add, upon his giv- ing good security in the sum of ........ , for making good to the defendants the damages and costs that may be awarded them by reason of the granting of this order): Now, therefore, take notice that you, ........ and ........ defendants herein, your agents, servants and attorneys, and each of you, are hereby specially restrained and enjoined from (here insert the act or acts sought to be restrained), until the hearing upon said application for a writ of injunction and the further order of the court in the premises. 108. ORDER GRANTING PRELIMINARY INJUNCTION. (Title of court, and of cause.) Whereas, in ‘the above entitled cause, an application for the issuance of a preliminary writ of injunetion was duly filed and set down for hearing before the court (or, before the Honorable a H., a judge of said court) on the ........ day of ........ ; ‘5 Se ee , notice of such application being given to Sotebned ane and ........, defendants herein; and the parties now appearing by their solicitors and being heard upon such appli- cation, and it appearing that cause exists for the granting a writ of injunction, pending the final hearing of the cause, as prayed for: fee eT FORMS OF BILL 201 It is therefore ordered that upon the complainant giving se- curity, by bond, in the sum of ........ , conditioned that (here insert the proper conditions), a writ of injunction issue com- manding, restraining and enjoining the defendants, their agents, servants and attorneys, from (here set forth the special matter sought to be enjoined), until the further order of the court in the premises. 109. Writ or PRELIMINARY INJUNCTION. (Title of court, and of cause.) The President of the United States, to ........ AN, oe sseio ss : Whereas, in the above entitled cause, now pending in said United States District Court in and for the ........ district of Suet , upon application duly made to the court (or if the judge, so state, giving his name), it was on the ........ day of sedation ts , 19.., ordered that a preliminary writ of injunction issue therein as prayed for in the bill of complaint herein filed and as directed in said order: Now, therefore, know ye, that you, ........ AN: eens your agents, servants and attorneys, and each of them, are hereby strictly restrained and enjoined from (here set forth clearly the act or acts sought to be enjoined), and you and each of you are hereby commanded that you do desist and refrain from doing or causing to be done all or any of the acts and things hereinabove recited and set forth, until the further order of the court in the premises. Witness the Honorable ........ , chief justice of the Supreme Court of the United States, this ........ day of ........, and the seal of said District Court in and for the ........ district Of caesemcome haa ew aes: , Clerk 110. ORDER OF CONSOLIDATION, (Title of court and of both causes to be consolidated.) The above-entitled causes coming on this day to be heard on the motion of ........ , Solicitor for ........ , defendant in each of the above entitled causes, and the complainants in each of said causes being present in open court by ........ , their solicitor, and the court being fully advised in the premises, it is ordered that the above-entitled causes be and they are hereby consolidated into one cause in this court, and that all separate proceedings in each of the above-entitled causes, save the first of said causes, be stayed, and that all future orders and pro- ceedings in any of said causes be taken as in the first of said above-entitled causes. 202 EQUITY PLEADING AND PRACTICE 111. ORDER TO Pay Money Into Court. (Title of court and cause.) On reading the bill and answer in this cause (and upon due proof of service of notice of this motion), and on motion of J. E., solicitor for complainant, and on hearing E. F. in opposition to said motion (or, no one appearing to oppose), It is ordered that the defendant, C. D., do, on or before the eee Boe day of ........, A.D. ...., next, pay into the hands of the clerk of this court, in trust in this cause, the sum of Seana dollars, admitted by the answer of the said defendant to be due from him, and that when such money is paid it be de- posited by said clerk in trust in ........ bank, to the credit of this cause, there to remain until the further order of this court. 112. PRAECIPE FOR SETTING Down CAUSE FOR ARGUMENT OR HEARING. (Title of court and cause.) To Clerk of said Court: In above cause set down for argument demurrer (or, plea) filed to the bill. Set down above cause for argument on defendant’s objection for want of parties. Set down above cause for hearing on bill and answer. Set down above cause for hearing on pleadings and proofs. 113. STIPULATION. (Title of court and cause.) It is hereby stipulated by and between the complainant in the above-entitled cause, by ........ , his solicitor, and the defend- ant in said cause, by ........ , his solicitor, that, ete. (Here insert the matter of the stipulation; as, for example, that such cause may be referred to ........ , one of the masters in chan- cery of this court, to take testtmony and report the same to the court, together with his conclusions of fact and of law thereon, with all convenient speed.) Dated, ........ py AD vs A. B., Complainant, BY cae satiegs , His Solicitor. C. D., Defendant, BY svacdin's , His Solicitor. 114. Writ or Ne Exegat. (Title of court, and of cause.) The President of the United States, to ........ , the United States marshal in and for district of ........ : Whereas in the above entitled cause in equity now pending FORMS OF BILL 208 in the United States District Court in and for the ........ dis- trict of ........ , it has been made to appear by satisfactory proof to the said court (or, to the district justice or judge) that Since ds , defendant in said cause, is equitably indebted to the complainant, and that the said ........ , defendant, designs quickly to depart from the United States, and thereby defeat the remedy sought by complainant and greatly to prejudice the rights of said complainant: Therefore you are hereby ordered and commanded that, with- out delay you cause the said ........ to give good and suffi- cient bail or security in the sum of ........ dollars, to be by you approved, that he will not depart beyond the limits of the United States without leave of this court first had; and in case BALA. cases sans , defendant, fails to give bail or security as afore- said, you are commanded to keep him in custody until the fur- ther order of court or until he gives the bail or security above required. Witness the Honorable ........ , chief justice of the Supreme Court of the United States, this ........ day of ........ ,19.., and the seal of said District Court in and for the........ dis- trict of ......... airequnnenetaressveneareeaa ,Clerk. 115. WRIT OF SEQUESTRATION. (Title of court, and of cause.) The President of the United States, to ........: Whereas, in the above entitled cause in equity, pending in the United States District Court in and for the ........ district OL scermmarececn , it was, on the ........ day of ...2:54: , ordered and decreed that ........ , defendant, should (here briefly state requirements of the order or decree). And it now appearing that the said ........ , defendant, has wholly failed to obey and perform such order and decree, and that for such failure a writ of attachment has been hitherto duly issued from the clerk’s office of this court for the attachment of the person of said de- fendant, but that said writ has been returned by the marshal of this district unserved for the reason that said defendant can- not be found within the jurisdiction of this court, and that for cause shown a writ of sequestration has been ordered to issue for the seizure of the estate of said ........ , defendant, for the purpose of compelling obedience on his part to said order and decree hereinbefore mentioned: Now, therefore, know ye that, having confidence in your pru- dence and fidelity, you are hereby authorized, empowered and commanded to seize and take possession of (here describe the estate, or portion of it, to be seized, as the real and personal estate of said ........ WRIT ass a irs , or certain realty or 204 4 EQUITY PLEADING AND PRACTICE personalty), and the rents and profits of said realty to collect and receive, and possession of said personality to take and keep until the further order of the court in the premises. ‘Witness the Honorable ........ , chief justice of the Supreme Court of the United States, this ........ day of ........ , with the seal of said United States District Court in and for ........ district of ......... 116. WRIT oF ASSISTANCE. (Title of court, and of cause.) The President of the United States, to ........ , marshal of the ee district of ........, Greeting: Whereas in the above entitled cause it has been made to ap- pear to the said United States District Court in and for the po lvtew aay district of ........, that under the decree of said court heretofore rendered in the above case, and the proceedings had for the enforcement thereof, the said ........ , complainant as aforesaid (or, H. B., the purchaser at the foreclosure sale, or whoever the party entitled to the writ may be), is now entitled to be put in possession of the following realty (describing it), or to have delivered up to him the following described personal property : ; Now, therefore, you, as United States marshal for said Bile aes areraeae district of ........, are hereby directed and com- manded that you forthwith put the said ........ into posses- sion of the real estate above described (or, cause to be delivered to said ........ the personal property above described), and that you cause the defendants in the above suit, their agents, servants and attorneys, to forthwith yield possession of said property in obedience to the decree heretofore entered in this ease. Hereof fail not. Witness the Honorable ........ , chief justice of the Supreme Court of the United States, this ........ day of ........ pAD a with the seal of said United States District Court in and for the faery district of ........ Piss auch et oder bieldba te , Clerk. 117. Bi oF Revivor. (Title of court and of cause.) Ore caa ears , the Judges of said Court: enlistees herein avers and shows to this honorable court that since the beginning of this suit (here insert event that has caused the abatement and necesity of reviving the cause, as the death of party, and set forth who are the representatives, heirs or others against whom it is sought to revive). Wherefore, by reason of the premises, this suit has become stayed or abated; and to revive, continue and further proceed FORMS OF BILL 205 therewith it has become necessary to make said ........ and ee parties hereto, to which end ........ prays and moves the court to enter all proper orders as to notice to the parties to be substituted, and for reviving and continuing said cause and substituting said ........ and said ........ as parties {complainant or defendant) and for the filing of such pleadings or amendments as may be necessary. 118. Bit or REvIEw on Grounp or New Martsr. (Title of court and of cause.) aloe Bill of review on behalf of ......... To the ‘Judges of said Court: Petitioner avers and shows that in a certain suit entitled as above, and brought in this court to the ........ term, 19.., thereof, this petitioner was defendant (or, complainant) therein, and that at the ........ term, 19.., of said court, upon a hearing therein, a final decree therein was entered in said cause greatly to the prejudice and injury of this petitioner, which said decree is entered at large upon the records of this court and to which reference is prayed. And this petitioner avers and says that lately and since the entry of said final decree aforesaid he hath discovered that (here set forth the new matter or the new evidence relied on as ground of review, with proper averments to show its materiality, and also show that the party was not in fault in not adducing such matter at the hearing). Wherefore, for said causes alleged, said decree should be re- viewed, reversed and set aside; and to the end that petitioner may be permitted to show and prove the matters aforesaid, petitioner prays process by subpoena against ........ , requiring him to appear hereto and due answer make, and that upon the hearing hereof the said decree may be reviewed, reversed and set aside, and such other and further orders and decree be made as may to the court seem proper. United States of America, | District of Ty eaten , being duly sworn, do say that I am petitioner in the foregoing bill of review, that I have read the same, and that the matters and things therein set forth are true. 206 EQUITY PLEADING AND PRACTICE 119. Bru oF REVIEW FoR Errors ON Face of RECORD. (Title of court and of cause.) Bill of review on behalf of ........ To the Judges of said Court: Petitioner respectfully avers that in a certain suit entitled as above, and brought in this court to the ........ term, 19.., thereof, this petitioner was defendant (or, complainant) therein, and that at the ........ term, 19.., of said court, upon a hearing therein, a final decree was entered in said cause greatly to the prejudice and injury of your petitioner, which said decree is entered at large upon the records of this court, and to which reference is prayed. And petitioner avers and. says that said decree so entered is upon the face of the record erro- neous for that (here set forth the particular matters in which error is alleged, and show how such alleged errors prejudice petitioner.) Wherefore, as said errors appear on the face of the record, and are greatly prejudicial to petitioner and his rights in the premises, petitioner prays that said decree may be reviewed, reversed and set aside. And to that end petitioner prays process by subpoena against ........ , requiring him to appear and answer hereto and show cause, if he may, why said decree should not be reviewed and set aside, and such further orders and decrees be made as to the court may seem just. 120. JUDGE’sS CERTIFICATE OF EVIDENCE HEARD IN OPEN Court. (Title of court and of cause.) Be it remembered, and certified that on the hearing of this cause, at the above term of court, upon the bill of complaint, answer to said bill, and the replication thereto, the following proceedings and evidence were had and taken: C. D., a witness produced on the part of complainant, was sworn and testified as follows: (Here insert his testimony including stenographer’s affidavit, as follows): And the complainant further offered in evidence one trust deed marked for identification, as complainant’s exhibit 1, and four promissory notes marked for identification as complainant’s exhibits 2, 3, 4, 5, in words and figures as follows: (Here copies.) And further, E. F., a witness on the part of the defendant, was sworn and testified as follows: (Here insert his testimony in full also verified by stenographer’s affidavit.) And further the defendant offered in evidence a certain deed FORMS OF BILL 207 marked for identification as defendant’s exhibit 1, in words and figures, as follows, to-wit: (Heré insert copy.) Be it further remembered, and certified, that the foregoing were all the proceedings and evidence had and taken on the hear- ing of said cause. And, inasmuch as the matters above set forth do not fully apear of record in said cause, the ........ tenders this certifi- cate of the proceedings and evidence, and prays that the same may be certified under the hand and seal of the judge of this court, and thereby made a part of the record in said cause, and it is accordingly certified and made a part of the record of said cause. Dated this ........ 7p AS Dy 1960 oa eeaseeas a Ps State of ........ l " County of....... , Le raccath hanes , do hereby certify that I am a shorthand reporter and that the above and foregoing is a true and correct transcript of all the evidence taken by me in shorthand upon the examina- tion of witnesses in open court, and of the proceedings had upon the hearing of this cause. Dated this ........ day Of sawracus ,A.D.19.. Subscribed and sworn to before me this peed ceed day of Sarg seas , A.D. 19.. Notary Public. 121. PETITION FOR APPEAL. (Title of court, of cause, and address to judges.) Your petitioner, the ........ in the above entitled cause, would respectfully represent and show that in the above en- titled case pending in the United States District Court in and for the ........ district of ........ , there was entered at the jeans term, 19.., of said court, a final decree greatly to the prejudice and injury of your petitioner, which said decree is erroneous and inequitable in many particulars. Wherefore, in order that your petitioner may obtain relief in the premises and have opportunity to show the errors com- plained, your petitioner prays that he may be allowed an appeal in said case to the ........ court, and that the proper orders touching the security required of him may be made. 122. Citation Upon APPEAL. (Title of court and of cause.) United States of America, to ........ : You are hereby notified that in a certain case in equity in 208 EQUITY PLEADING AND PRACTICE the United States District Court in and for the ........ dis- APICH Of aoe ss bse , wherein ........ is complainant and ........ and ........ are defendants, an appeal has been allowed, the sae cee therein to the ........ and you are hereby cited and admonished to be and appear in said court at ........ hntccaseceaat days after the date of this citation, to show cause, if any there be, why the order and decree appealed from should not be corrected and why speedy justice should not be done the parties in that behalf. Witness, the Honorable ........ , Judge of ........ , this We ia eins day of ........,A.D.19... THE NEW RULES OF PRACTICE FOR THE COURTS OF EQUITY OF THE UNITED STATES PROMULGATED BY THE SUPREME COURT OF THE UNITED STATES NOVEMBER 4, 1912 In Force February 1, 1913 FEDERAL EQUITY RULES Rule 1. District court always open for certain purposes— Orders at chambers. The district courts, as courts of equity, shall be deemed always open for the purpose of filing any pleading, of issuing and returning mesne and final process, and of making and directing all interlocutory motions, orders, rules and other proceedings preparatory to the hearing, upon their merits, of all causes pending therein. Any district judge may, upon reasonable notice to the par- ties, make, direct, and award, at chambers or in the clerk’s office, and in vacation as well as in term, all such process, com- missions, orders, rules and other proceedings, whenever the same are not grantable of course, according to the rules and practice of the court. Rule 2. Clerk’s office always open, except, etc. The clerk’s office shall be open during business hours on all days, except Sundays and legal holidays, and the clerk shall be in attend- ance for the purpose of receiving and disposing of all motions, rules, orders and other proceedings which are grantable of course. Rule 3. Books kept by clerk and entries therein. The clerk shall keep a book known as ‘‘Equity Docket,’’ in which he shall enter each suit, with a file number corresponding to the folio in the book. All papers and orders filed with the clerk in the suit, all process issued and returns made thereon, and all appearances shall be noted briefly and chronologically in this. book on the folio assigned to the suit and shall be marked.with. its file number. The clerk shall also keep a book entitled ‘‘Order Book,’’ in which shall be entered at length, in the order of their making, B. P.—14 209 210 EQUITY PLEADING AND PRACTICE all orders made or passed by him as of course and also all orders made or passed by the judge in chambers. He shall also keep an ‘‘Equity Journal,’’ in which shall be entered all orders, decrees and proceedings of the court in equity causes in term time. Separate and suitable indices of the Equity Docket, Order Book and Equity Journal shall be kept by the clerk under the direction of the court. Rule 4. Notice of orders. Neither the noting of an order in the Equity Docket nor its entry in the Order Book shall of itself be deemed notice to the parties or their solicitors; and when an order is made without prior notice to, and in the ab- sence of, a party, the clerk, unless otherwise directed by the court or judge, shall forthwith send a copy thereof, by mail, to such party or his solicitor and a note of such mailing shall be made in the Equity Docket, which shall be taken as suffi- cient proof of due notice of the order. L Rule 5. Motions grantable of course by clerk. All motions and applications in the clerk’s office for the issuing of mesne process or final process to enforce and execute decrees; for taking bills pro confesso; and for other proceedings in the clerk’s office which do not require any allowance or order of the court or of a judge, shall be deemed motions and applica- tions grantable of course by the clerk; but the same may be suspended, or altered, or rescinded by the judge upon special cause shown. Rule 6. Motion day. Each district court shall establish reg- ular times and places, not less than once each month, when motions requiring notice and hearing may be made and. dis- posed of; but the judge may at any time and place, and on such notice, if any, as he may consider reasonable, make and direct all interlocutory orders, rulings and proceedings for the advancement, conduct and hearing of causes. If the public interest permits, the senior circuit judge of the circuit may. dispense with the motion day during not to exceed two months in the year in any district. Rule 7. Process, mesne and final. The process of subpoena shall constitute the proper mesne process in all suits in equity, FEDERAL EQUITY RULES 211 in the first instance, to require the defendant to appear and answer the bill; and, unless otherwise provided in these rules or specially ordered by the court, a writ of attachment and, if the defendant cannot be found, a writ of sequestration, or a writ of assistance to enforce a delivery of possession, as the case may require, shall be the proper process to issue for the purpose of compelling obedience to any interlocutory or final order or decree of the court. Rule 8. Enforcement of final decrees. Final process to exe- cute any decree may, if the decree be solely for the payment of money, be by a writ of execution, in the form used in the dis- trict court in suits at common law in actions of asswmpsit. If the decree be for the performance of any specific act, as, for example, for the execution of a conveyance of land or the delivering up of deeds or other documents, the decree shall, in all cases, prescribe the time within which the act shall be done, of which the defendant shall be bound, without further service, to take notice; and upon affidavit of the plaintiff, filed in the elerk’s office, that the same has not been complied with within the prescribed time, the clerk shall issue a writ of attachment against the delinquent party, from which, if attached thereon, he shall not be discharged, unless upon a full compliance with the decree and the payment of all costs, or upon a special order of the court, or a judge thereof, upon mo- tion and affidavit, enlarging the time for the performance thereof. If the delinquent party cannot be found a writ of sequestration shall issue against his estate, upon the return of non est inventus, to compel obedience to the decree. If a man- datory order, injunction or decree for the specific performance of any act or contract be not complied with, the court or a judge, besides, or instead of, proceedings against the diso- bedient party for a contempt or by sequestration, may by order direct that the act required to be done, be done, so far as prac- tricable, by some other person appointed by the court or judge, at the cost of the disobedient party, and the act, when so done, shall have like effect as if done by him. Rule 9. Writ of assistance. When any decree or order is for the delivery of possession, upon proof made by affidavit of a demand and refusal to obey the decree or order, the party 212 EQUITY PLEADING AND PRACTICE prosecuting the same shall be entitled to a writ of assistance from the clerk of the court. Rule 10. Decree for deficiency in foreclosures, etc. In suits for the foreclosure of mortgages, or the enforcement of other liens, a decree may be rendered for any balance that may be found due to the plaintiff over and above the proceeds of the sale or sales, and execution may issue for the collection of the same, as is provided in rule 8 when the decree is solely for the payment of money. Rule 11. Process in behalf of and against persons not parties. Every person, not being a party in any cause, who has ob- tained an order, or in whose favor an order shall have been made, may enforce obedience to such order by the same process as if he were a party; and every person, not being a party, against whom obedience to any order of the court may be en- forced, shall be liable to the same process for enforcing obedi- ence to such orders as if he were a party. Rule 12. Issue of subpena—Time for answer. Whenever a bill is filed, and not before, the clerk shall issue the process of subpeena thereon, as of course, upon the application of the plaintiff, which shall contain the names of the parties and be returnable into the clerk’s office twenty days from the issu- ing thereof. At the bottom of the subpcna shall be placed a memorandum, that the defendant is required to file his answer or other defense in the clerk’s office on or before the twentieth day after service, excluding the day thereof; otherwise the bill may be taken pro confesso. Where there are more than one defendant, a writ of subpcena may, at the election of the plain- tiff, be sued out separately for each defendant, or a joint sub- pena against all the defendants. Rule 13. Manner of serving subpoena. The service of all subpeenas shall be by delivering a copy thereof to the defend- ant personally, or by leaving a copy thereof at the dwelling- house or usual place of abode of each defendant, with some adult person who is a member of or resident in the family. Rule 14, Alias subpoena. Whenever any subpena shall be returned not executed as to any defendant, the plaintiff shall FEDERAL EQUITY RULES 213 be entitled to other subpcenas against such defendant, until due service is made. Rule 15. Process, by whom served. The service of all pro- cess, mesne and final, shall be by the marshal of the district or his deputy, or by some other person specially appointed by the court or judge for that purpose, and not otherwise. In the latter case, the person serving the process shall make affidavit thereof. Rule 16. Defendant to answer—Default—Decree pro con- fesso. It shall be the duty of the defendant, unless the time shall be enlarged, for cause shown, by a judge of the court, to file his answer or other defense to the bill in the clerk’s office within the time named in the subpena as required by rule 12. In default thereof the plaintiff may, at his election, take an order as of course that the bill be taken pro confesso; and thereupon the cause shall be proceeded in ex parte. Rule 17. Decree pro confesso to be followed by final decree— Setting aside Default. When the bill is taken pro confesso the court may proceed to a final decree at any time after the expira- ation of thirty days after the entry of the order pro confesso, and such decree shall be deemed absolute, unless the court shall, at the same term, set aside the same, or enlarge the time for filing the answer, upon cause shown upon motion and affi- davit. No such motion shall be granted, unless upon the pay- ment of the costs of the plaintiff up to that time, or such part thereof as the court shall deem reasonable, and unless the de- fendant shall undertake to file his answer within such time as the court shall direct, and submit to such other terms as the court shall direct, for the purpose of speeding the cause. Rule 18. Pleadings—Techincal forms abrogated. Unless otherwise prescribed by statute or these rules the technical forms of pleadings in equity are abolished. Rule 19. Amendments generally. The court may at any time, in furtherance of justice, upon such terms as may be just, per- mit any process, proceeding, pleading or record to be amended, or material supplemental matter to be set forth in an amended or supplemental pleading. The court, at every stage of the 214 EQUITY PLEADING AND PRACTICE proceeding must disregard any error or defect in the proceed- ing which does not affect the substantial rights of the parties. Rule 20. Further and Particular statement in pleading may be required. A further and better statement of the nature of the claim or defense, or further and better particulars of any matter stated in any pleading, may in any case be ordered, upon such terms, as to costs and otherwise, as may be just. Rule 21. Scandal and impertinence. The right to except to bills, answers, and other proceedings for scandal or imperti- nence shall not obtain, but the court may, upon motion or its own initiative, order any redundant, impertinent or scandalous matter stricken out, upon such terms as the court shall think fit. Rule 22. Action at law erroneously begun as suit in equity— Transfer. If at any time it appear that a suit commenced in equity should have been brought as an action on the law side of the court, it shall be forthwith. transferred to the law side and be there proceeded with, with only such alteration in the pleadings as shall be essential. Rule 23. Matters ordinarily determinable at law, when aris- ing in suit in equity to be disposed of therein. If in a suit in equity a matter ordinarily determinable at law arises, such matter shall be determined in that suit according to the prin- ciples applicable, without sending the case or question to the law side of the court. Rule 24. Signature of counsel. Every bill or other pleading shall be signed individually by one or more solicitors of record, and such signatures shall be considered as a certificate by each solicitor that he has read the pleading so signed by him; that upon the instructions laid before him regarding the case there is good ground for the same; that no scandalous matter is in- serted in the pleading; and that it is not interposed for delay. Rule 25. Bill of complaint—Contents. Hereafter it shall pe sufficient that a bill in equity shall contain, in addition to the usual caption: First, the full name, when known, of each plaintiff and de- fendant, and the citizenship and residence of each party. If any party be under any disability that fact shall be stated. FEDERAL EQUITY RULES 215 Second, a short and plain statement of the grounds upon which the court’s jurisdiction depends. Third, a short and simple statement of the ultimate facts upon which the plaintiff asks relief, omitting any mere state- ment of evidence. Fourth, if there are persons other than those named as de- fendants who appear to be proper parties, the bill should state why they are not made parties—as that they are not within the jurisdiction of the court, or cannot be made parties without ousting the jurisdiction. Fifth, a statement of and prayer for any special relief pend- ing the suit or on final hearing, which may be stated and sought in alternative forms. If special relief pending the suit be de- sired the bill should be verified by the oath of the plaintiff, or someone having knowledge of the facts upon which such relief is asked. Rule 26. Joinder of causes of action. The plaintiff may join in one bill as many causes of action, cognizable in equity, as he may have against the defendant. But when there are more than one plaintiff, the causes of action joined must be joint, and if there be more than one defendant the liability must be one asserted against all of the material defendants, or sufficient grounds must appear for uniting the causes of action in order to promote the convenient administration of justice. If it ap- pear that any such causes of action cannot be conveniently dis- posed of together, the court may order separate trials. Rule 27. Stockholder’s Bill. Every bill brought by one or more stockholders in a corporation against the corporation and other parties, founded on rights which may properly be as- serted by the corporation, must be verified by oath, and must contain an allegation that the plaintiff was a shareholder at the time of the transaction of which he complains, or that his share had devolved on him since by operation of law, and that the suit is not a collusive one to confer on a court of the United States jurisdiction of a case of which it would not otherwise have cognizance. It must also set forth with particularity the efforts of the plaintiff to secure such action as he desires on the part of the managing directors or trustees, and, if necessary, of 216 EQUITY PLEADING AND PRACTICE the shareholders, and the causes of his failure to obtain such action, or the reasons for not making such effort. Rule 28. Amendment of bill as of course. The plaintiff may, as of course, amend his bill before the defendant has responded thereto, but if such amendment be filed after any copy has issued from the clerk’s office, the plaintiff at his own cost shall furnish to the solicitor of record of each opposing party a copy of the bill as amended, unless otherwise ordered by the court or judge. After pleading filed by any defendant, plaintiff may amend only by consent of the defendant or leave of the court or judge. Rule 29. Defenses—How presented. Demurrers and pleas are abolished. Every defense in point of law arising upon the face of the bill, whether for misjoinder, nonjoinder, or insuf- ficiency of fact to constitute a valid cause of action in equity, which might heretofore have been made by demurrer or plea, shall be made by motion to dismiss or in the answer; and every such point of law going to the whole or a material part of the cause or causes of action stated in the bill may be called up and disposed of before final hearing at the discretion of the court. Every defense heretofore presentable by plea in bar or abate- ment shall be made in the answer and may be separately heard and disposed of before the trial of the principal case in the dis- cretion of the court. If the defendant move to dismiss the bill or any part thereof, the motion may be set down for hearing by either party upon five days’ notice, and, if it be denied, answer shall be filed within five days thereafter or a decree pro con- fesso entered. Rule 30. Answer—Contents—Counterclaim. The defendant in his answer shall in short and simple terms set out his defense to each claim asserted by the bill, omitting any mere statement of evidence and avoiding any general denial of the averments of the bill, but specifically admitting or denying or explaining the facts upon which the plaintiff relies, unless the defendant is without knowledge, in which case he shall so state, such state- ment operating as a denial. Averments other than of value or amount of damage, if not denied, shall be deemed confessed, except as against an infant, lunatic of other person non compos FEDERAL EQUITY RULES 217 and not under guardianship, but the answer may be amended, by leave of the court or judge, upon reasonable notice, so as to put any averment in issue, when justice requires it. The answer may state as many defenses, in the alternative, regard- less of consistency, as the defendant deems essential to his defense. The answer must state in short and simple form any counter- claim arising out of the transaction which is the subject matter of the suit, and may, without cross-bill, set out any set-off or counterclaim against the plaintiff which might be the subject of an independent suit in equity against him, and such set-off or counterclaim, so set up, shall have the same effect as a eross-suit, so as to enable the court to pronounce a final judg- ment in the same suit both on the original and cross-claims. Rule 31. Reply—When required—When cause at issue. Unless the answer assert a set-off or counterclaim, no reply shall be required without special order of the court or judge, but the cause shall be deemed at issue upon the filing of the answer, and any new or affirmative matter therein shall be deemed to be denied by the plaintiff. If the answer include a set-off or counterclaim the party against whom it is asserted shall reply within ten days after the filing of the answer, unless a longer time be allowed by the court or judge. If the counter- claim is one which affects the rights of other defendants they or their solicitors shall be served with a copy of the same within ten days from the filing thereof, and ten days shall be accorded to such defendants for filing a reply. In default of a reply, a decree pro confesso on the counterclaim may be entered as in default of an answer to the bill. Rule 32. Answer to amended bill. In every case where an amendment to the bill shall be made after answer filed, the defendant shall put in a new or supplemental answer within ten days after that on which the amendment or amended bill is filed, unless the time is enlarged or it is otherwise ordered by a judge of the court; and upon a default, the like proceedings may be had as upon an omission to put in an answer. Rule 33. Testing sufficiency of defense. Exceptions for in- sufficiency of an answer are abolished. But if an answer set 218 EQUITY PLEADING AND PRACTICE up an affirmative defense, set-off or counterclaim, the plaintiff may, upon five days’ notice, or such further time as the court may allow, test the sufficiency of the same by motion to strike out. If found insufficient but amendable the court may allow an amendment upon terms, or strike out the matter. Rule 34. Supplemental pleading. Upon application of either party the court or judge may, upon reasonable notice and such terms as are just, permit him to file and serve a supplemental pleading, alleging material facts occurring after his former pleading, or of which he was ignorant when it was made, in- cluding the judgment or decree of a competent court rendered after the commencement of a suit determining the matters in controversy or a part thereof. Rule 35. Bills of revivor and supplemental bills—Form. It shall not be necessary in any bill of revivor or supplemental bill to set forth any of the statements in the original suit, unless the special cireumstances of the case may require it. Rule 36. Officers before whom pleadings verified. Every pleading which is required to be sworn to by statute, or these rules, may be verified before any justice or judge of any court of the United States, or of any State or Territory, or of the Dis- trict of Columbia, or any clerk of any court of the United States or of any Territory, or of the District of Columbia, or any notary public. Rule 37. Parties generally—Intervention. Every action shall be prosecuted in the name of the real party in interest, but an executor, administrator, guardian, trustee of an express trust, a party with whom or in whose name a contract has been made for the benefit of another, or a party expressly authorized by statute, may sue in his own name without joining with him the party for whose benefit the action is brought. All persons having an interest in the subject of the action and in obtaining the relief demanded may join as plaintiffs, and any person may be made a defendant who has or claims an interest adverse to the plaintiff. Any person may at any time be made a party if his presence is necessary or proper to a complete determina- tion of the cause. Persons having a united interest must be joined on the same side as plaintiffs or defendants, but when FEDERAL EQUITY RULES 219 any one refuses to join, he may for such reason be made a defendant. Anyone claiming an interest in the litigation may at any time be permitted to assert his right by intervention, but the intervention shall be in subordination to, and in recognition of, the propriety of the main proceeding. Rule 38. Representatives of class. When the question is one of common or general interest to many persons constituting a class so numerous as to make it impracticable to bring them all before the court, one or more may sue or defend for the whole. Bule 39. Absence of persons who would be proper parties. In all cases where it shall appear to the court that persons, who might otherwise be deemed proper parties to the suit, cannot be made parties by reason of their being out of the juris- diction of the court, or incapable otherwise of being made par- ties, or because their joinder would oust the jurisdiction of the court as to the parties before the court, the court may, in its discretion, proceed in the cause without making such persons parties ; and in such cases the decree shall be without prejudice to the rights of the absent parties. Rule 40. Nominal parties. Where no account, payment, con- veyance, or other direct relief is sought against a party to a suit, not being an infant, the party, upon service of the sup- pcena upon him, need not appear and answer the bill, unless the plaintiff specially requires him to do so by the prayer; but he may appear and answer at his option; and if he does not ap- pear and answer he shall be bound by all the proceedings in the cause. If the plaintiff shall require him to appear and answer he shall be entitled to the costs of all the proceedings against him, unless the court shall otherwise direct. Rule 41. Suit to execute trusts of will—Heir as party. In suits to execute the trusts of a will, it shall not be necessary to make the heir at law a party; but the plaintiff shall be at liberty to make the heir at law a party where he desires to have the will established against him. | Rule 42. Joint and several demands. In all cases in which the plaintiff has a joint and several demand against several 220 EQUITY PLEADING AND PRACTICE persons, either as principals or sureties, it shall not be neces- sary to bring before the court as parties to a suit concerning such demand all the persons liable thereto; but the plaintiff may proceed against one or more of the persons severally liable. Rule 48. Defect of parties—Resisting objection. Where the defendant shall by his answer suggest that the bill of eom- plaint is defective for want of parties, the plaintiff may, within fourteen days after answer filed, set down the cause for argu- ment as a motion upon that objection only; and where the plaintiff shall not so set down his cause, but shall proceed there- with to a hearing, notwithstanding an objection for want of parties taken by the answer, he shall not at the hearing of the cause, if the defendant’s objection shall then be allowed, be entitled as of course to an order to amend his bill by adding parties; but the court shall be at liberty to dismiss the bill, or to allow an amendment on such terms as justice may require. Rule 44. Defect of parties—Tardy objection. If a defend- ant shall, at the hearing of a cause, object that a suit is defec- tive for want of parties, not having by motion or answer taken the objection and therein specified by name or description the parties to whom the objection applies, the court shall be at liberty to make a decree saving the rights of the absent parties. Rule 45. Death of party—Revivor. In the event of the death of either party the court may, in a proper case, upon motion, order the suit to be revived by the substitution of the proper parties. If the successors or representatives of the deceased party fail to make such application within a reasonable time, then any other party may, on motion, apply for such relief, and the court, upon any such motion, may make the necessary or- ders for notice to the parties to be substituted and for the filing of such pleadings or amendments as may be necessary. Rule 46. Trial—Testimony usually taken in open court— Rulings on objections to evidence. In all trials in equity the testimony of witnesses shall be taken orally in open court, except as otherwise provided by statute or these rules. The court shall pass upon the admissibility of all evidence offered as in actions at law. When evidence is offered and excluded, and the party against whom the ruling is made excepts thereto FEDERAL EQUITY RULES 221 at the time, the court shall take and report so much thereof, or make such a statement respecting it, as will clearly show the character of the evidence, the form in which it was offered, the objection made, the ruling, and the exception. If the appellate court shall be of opinion that the evidence should have been admitted, it shall not reverse the decree unless it be clearly of opinion that material prejudice will result from an affirmance, in which event it shall direct such further steps as justice may require. Rule 47. Depositions—To be taken in exceptional instances. The court, upon application of either party, when allowed by statute, or for good and exceptional cause for departing from the general rule, to be shown by affidavit, may permit the depo- sition of named witnesses, to be used before the court or upon a reference to a master, to be taken before an examiner or other named officer, upon the notice and terms specified in the order. All depositions taken under a statute, or under any such order of the court, shall be taken and filed as follows, unless otherwise ordered by the court or judge for good cause shown: Those of the plaintiff within sixty days from the time the cause is at issue; those of the defendant within thirty days from the expiration of the time for the filing of plaintiff’s depositions; and rebutting depositions by either party within twenty days after the time for taking original depositions expires. Rule 48. Testimony of expert witnesses in patent and trade- mark cases. In a case involving the validity or scope of a patent or trade-mark, the district court may, upon petition, order that the testimony in chief of expert witnesses, whose testimony is directed to matters of opinion, be set forth in affidavits and filed as follows: Those of the plaintiff within forty days after the cause is at issue; those of the defendant within twenty days after plaintiff’s time has expired; and re- butting affidavits within fifteen days after the expiration of the time for filing original affidavits. Should the opposite party desire the production of any affiant for cross-examina- tion, the court or judge shall, on motion, direct that said cross- examination and any re-examination take place before the court upon the trial, and unless the affiant is produced and sub- 222 EQUITY PLEADING AND PRACTICE mits to cross-examination in compliance with such direction, his affidavit shall not be used as evidence in the cause. Rule 49. Evidence taken before examiners, etc. All evi- dence offered before an examiner or like officer, together with any objections, shall be saved and returned into the court. Depositions, whether upon oral examination before an examiner or like officer or otherwise, shall be taken upon questions and answers reduced to writing, or in the form of narrative, and the witness shall be subject to cross and re-examination. Rule 50. Stenographer—Appointment—Fees. When deemed necessary by the court or officer taking testimony, a stenog- rapher may be appointed who shall take down testimony in shorthand, and, if required, transcribe the same. His fee shall be fixed by the court and taxed ultimately as costs. The ex- pense of taking a deposition, or the cost of a transcript, shall be advanced by the party calling the witness or ordering the transcript. Rule 51. Evidence taken before examiners, etc. Objection to the evidence, before an examiner or like officer, shall be in short form, stating the grounds of objection relied upon, but no transcript filed by such officer shall include argument or debate. The testimony of each witness, after being reduced to writing, shall be read over to or by him, and shall be signed by him in the presence of the officer; provided, that if the wit- ness shall refuse to sign his deposition so taken, the officer shall sign the same, stating upon the record the reasons, if any, assigned by the witness for such refusal. Objection to any question or questions shall be noted by the officer upon the deposition, but he shall not have power to decide on the com- petency or materiality or relevancy of the questions. The court shall have power, and it shall be its duty, to deal with the costs of incompetent and immaterial or irrelevant deposi- tions, or parts of them, as may be just. Rule 52. Attendance of witnesses before commissioner, mas- ter or examiner. Witnesses who live within the district, and whose testimony may be taken out of court by these rules, may be summoned to appear befor a commissioner appointed to take testimony, or before a master or examiner appointed in any FEDERAL EQUITY RULES 223 cause by subpcna in the usual form, which may be issued by the clerk in blank and filled up by the party praying the same, or by the commissioner, master, or examiner, requiring the attendance of the witnesses at the time and place specified, who shall be allowed for attendance the same compensation as for attendance in court; and if any witness shall refuse to ap- pear or give evidence it shall be deemed a contempt of the court, which being certified to the clerk’s office by the commis- sioner, master, or examiner, an attachment may issue thereupon by order of the court or of any judge thereof, in the same man- ner as if the contempt were for not attending, or for refusing to give testimony in, the court. In ease of refusal of witnesses to attend or be sworn or to answer any question put by the commissioner, master or ex- aminer or by counsel or solicitor, the same practice shall be adopted as is now practiced with respect to witnesses to be pro- duced on examination before an examiner of said court on written interrogatories. Rule 53. Notice of taking testimony before examiner, etc. Notice shall be given by the respective counsel or parties to the opposite counsel or parties of the time and place of exami- nation before an examiner or like officer for such reasonable time as the court or officer may fix by order in each case. Rule 54. Deposition under rev. stat. §§ 863, 865, 866, 867,— Cross-examination. After a cause is at issue, depositions may be taken as provided by sections 863, 865, 866 and 867, Revised Statutes. But if in any case no notice has been given the oppo- site party of the time and place of taking the deposition, he shall, upon application and notice, be entitled to have the wit- ness examined orally before the court, or to a cross examina- tion before an examiner or like officer, or a new deposition taken with notice, as the court or judge under all the circum- stances shall order. Rule 55. Deposition deemed published when filed. Upon the filing of any deposition or affidavit taken under these rules or any statute, it shall be deemed published, unless otherwise or- dered by the court. 224 EQUITY PLEADING AND PRACTICE Rule 56. On expiration of time for depositions, case goes on trial calendar. After the time has elapsed for taking and fil- ing depositions under these rules, the case shall be placed on the trial calendar. Thereafter no further testimony by deposi- tion shall be taken except for some strong reason shown by affidavit. In every such application the reason why the tes- timony of the witness cannot be had orally on the trial, and why his deposition has not been before taken, shall be set forth, together with the testimony which it is expected the witness will give. Rule 57. Continuances. After a cause shall be placed on the trial calendar it may be passed over to another day of the same term, by consent of counsel or order of the court, but shall not be continued beyond the term save in exceptional cases by order of the court upon good cause shown by affidavit and upon such terms as the court shall in its discretion impose. Continuances beyond the term by consent of the parties shall be allowed on condition only that a stipulation be signed by counsel for all the parties and that all costs incurred theretofore be paid. Thereupon an order shall be entered dropping the case from the trial calendar, subject to reinstatement within one year upon application to the court by either party, in which event it shall be heard at the earliest convenient day. If not so re- instated within the year, the suit shall be dismissed without prejudice to a new one. Rule 58. Discovery—Interrogatories—Inspection and pro- duction of documents—Admission of execution or genuineness. The plaintiff at any time after filing the bill and not later than twenty-one days after the joinder of issue, and the defendant at any time after filing his answer and not later than twenty-one days after the joinder of issue, and either party at any time thereafter by leave of the court or judge, may file interroga- tories in writing for the discovery by the opposite party or parties of facts and documents material to the support or de- fense of the cause, with a note at the foot thereof stating which of the interrogatories each of the parties is required to answer. But no party shall file more than one set of interrogatories to the same party without leave of the court or judge. If any party to the cause is a public or private corporation, FEDERAL EQUITY RULES 225 any opposite party may apply to the court or judge for an order allowing him to file interrogatories to be answered by any officer of the corporation, and an order may be made accord- ingly for the examination of such officer as may appear to be proper upon such interrogatories as the court or judge shall think fit. Copies shall be filed for the use of the interrogated party and shall be sent by the clerk to the respective solicitors of record, or to the last known address of the opposite party if there be no record solicitor. Interrogatories shall be answered, and the answers filed in the clerk’s office, within fifteen days after they have been served, unless the time be enlarged by the court or judge. Each interrogatory shall be answered separately and fully and the answers shall be in writing, under oath, and signed by the party or corporate officer interrogated. Within ten days after the sérvice of interrogatories, objections to them, or any of them, may be presented to the court or judge, with proof of notice of the purpose so to do, and answers shall be deferred until the objections are determined, which shall be at as early a time as is practicable. In so far as the objections are sus- tained, answers shall not be required. The court or judge, upon motion and reasonable notice, may make all such orders as may be appropriate to enforce answers to interrogatories or to effect the inspection or production of documents in the possession of either party and containing evidence material to the cause of action or defense of his adver- sary. Any party failing or refusing to comply with such an order shall be liable to attachment, and shall also be liable, if a plaintiff, to have his bill dismissed, and, if a defendant, to have his answer stricken out and be placed in the same situa- tion as if he had failed to answer. By a demand served ten days before the trial, either party may call on the other to admit in writing the execution or genuineness of any document, letter or other writing, saving all just exceptions; and if such admission be not made within five days after such service, the costs of proving the document, letter or writing shall be paid by the party refusing or neglect- ing to make such admission, unless at the trial the court shall find that the refusal or neglect was reasonable. E. P.—16 296 EQUITY PLEADING AND PRACTICE Rule 59. Reference to master—Exceptional, not usual. Save in matters of account, a reference to a master shall be the ex- ception, not the rule, and shall be made only upon a showing that some exceptional conditional requires it. When such a reference is made, the party at whose instance or for whose benefit it is made shall cause the order of reference to be pre- sented to the master for a hearing within twenty days succeed- ing the time when the reference was made, unless a longer time be specially granted by the court or judge; if he shall omit to do so, the adverse party shall be at liberty forthwith to cause proceedings to be had before the master, at the costs of the party procuring the reference. Rule 60. Proceedings before master. Upon every such ref- erence, it shall be the duty of the master, as soon as he reason- ably can after the same is brought before him, to assign a time and place for proceedings in the same, and to give due notice thereof to each of the parties, or their solicitors; and if either party shall fail to appear at the time and place appointed, the master shall be at liberty to proceed ex parte, or, in his disere- tion, to adjourn the examination and proceedings to a future day, giving notice to the absent party or his solicitor of such adjournment; and it shall be the duty of the master to pro- ceed with all reasonable diligence in every such reference, and with the least practicable delay, and either party shall be at liberty to apply to the court, or a judge thereof, for an order to the master to speed the proceedings and to make his report, and to certify to the court or judge the reason for any delay. Rule 61. Master’s report—Documents identified but not set forth. In the reports made by the master to the court, no part of any state of facts, account, charge, affidavit, deposition, examination, or answer brought in or used before him shall be stated or recited. But such state of facts, account, charge, affidavit, deposition, examination, or answer shall be identified, and referred to, so as to inform the court what state of facts, account, charge, affidavit, deposition, examination, or answer were so brought in or used. Rule 62. Powers of master. The master shall regulate all the proceedings in every hearing before him, upon every ref- FEDERAL EQUITY RULES 227 erence; and he shall have full authority to examine the parties in the cause, upon oath, touching all matters contained in the reference; and also to require the production of all books, papers, writings, vouchers, and other documents applicable thereto; and also to examine on oath, viva voce, all witnesses produced by the parties before him, or by deposition, accord- ing to the acts of Congress, or otherwise, as here provided; and also to direct the mode in which the matters requiring evidence shall be proved before him; and generally to do all other acts, and direct all other inquiries and proceedings in the matters before him, which he may deem necessary and proper to the justice and merits thereof and the rights of the parties. Rule 63. Form of accounts before master. All parties accounting before a master shall bring in their respective accounts in the form of debtor and creditor; and any of the other parties who shall not be satisfied with the account so brought in shall be at liberty to examine the accounting party viva voce, or upon interrogatories, as the master shall direct. Rule 64. Former deposition, etc, may be used before master. All affidavits, depositions and documents which have been previously made, read, or used in the court upon any proceed- ing in any cause or matter may be used before the master. Rule 65. Claimants before master examinable by him. The master shall be at liberty to examine any creditor or other person coming in to claim before him, either upon written inter- rogatories or viva voce, or in both modes, as the nature of the case may appear to him to require. The evidence upon such examinations shall be taken down by the master, or by some other person by his order and in his presence, if either party requires it, in order that the same may be used by the court if necessary. Rule 66. Return of master’s report—Exceptions—Hearing. The master, as soon as his report is ready, shall return the same into the clerk’s office and the day of the return shall be entered by the clerk in the Equity Docket. The parties shall have twenty days from the time of the filing of the report to file 228 EQUITY PLEADING AND PRACTICE exceptions thereto, and if no exceptions are within that period filed by either party, the report shall stand confirmed. If exceptions are filed, they shall stand for hearing before the court, if then in session, or, if not, at the next sitting held thereafter, by adjournment or otherwise. Rule 67. Costs on exceptions to master’s report. In order to prevent exceptions to reports from being filed for frivolous causes, or for mere delay, the party whose exceptions are over- ruled, shall, for every exception overruled, pay five dollars costs to the other party, and for every exception allowed shall be entitled to the same costs. Rule 68. Appointment and compensation of masters. The district courts may appoint standing masters in chancery in their respective districts (a majority of all the judges thereof concurring in the appointment), and they may also appoint a master pro hac vice in any particular case. The compensation to be allowed to every master shall be fixed by the district court, in its discretion, having regard to all the circumstances thereof, and the compensation shall be charged upon and borne by such of the parties in the cause as the court shall direct. The master shall not retain his report as security for his com- pensation; but when the compensation is allowed by the court, he shall be entitled to an attachment for the amount against the party who is ordered to pay the same, if, upon notice thereof, he does not pay it within the time prescribed by the court. Rule 69. Petition for rehearing. Every petition for a rehearing shall contain the special matter or cause on which such rehearing is applied for, shall be signed by counsel, and the facts therein stated, if not apparent on the record, shall be verified by the oath of the party or by some other person. No rehearing shall be granted after the term at which the final decree of the court shall have been entered and recorded, if an appeal lies to the Circuit Court of Appeals or the Supreme Court. But if no appeal lies, the petition may be admitted at any time before the end of the next term of the court, in the discretion of the court. FEDERAL EQUITY RULES 229 Rule 70. Suits by or against incompetents. Guardians ad litem to defend a suit may be appointed by the court, or by any judge thereof, for infants or other persons who are under guardianship, or otherwise incapable of suing for themselves. All infants and other persons so incapable may sue by their guardians, if any, or by their prochein ami; subject, however, to such orders as the court or judge may direct for the pro- tection of infants and other persons. Rule 71. Form of decree. In drawing up decrees and orders, neither the bill, nor answer, nor other pleadings, nor any part thereof, nor the report of any master, nor any other prior proceeding, shall be recited or stated in the decree or order; but the decree and order shall begin, in substance, as follows: ‘‘This cause came on to be heard (or to be further heard, as the case may be) at this term, and was argued by counsel; and thereupon, upon consideration thereof, it was ordered, adjudged and decreed as follows, viz:’’ (Here insert the decree or order.) Rule 72. Correction of clerical mistakes in orders and decrees. Clerical mistakes in decrees or decretal orders, or errors arising from any accidental slip or omission, may, at any time before the close of the term at which final decree is rendered, be corrected by order of the court or a judge thereof, upon petition, without the form or expense of a rehearing. Rule 73. Preliminary injunctions and temporary restrain- ing orders. No preliminary injunction shall be granted with- out notice to the opposite party. Nor shall any temporary restraining order be granted without notice to the opposite party, unless it shall clearly appear from specific facts, shown by affidavit or by the verified bill, that immediate and irrepar- able loss or damage will result to the applicant before the matter can be heard on notice. In case a temporary restraining order shall be granted without notice, in the contingency specified, the matter shall be made returnable at the earliest possible time, and in no event later than ten days from the date of the order, and shall take precedence of all matters, except older matters of the same character. When the matter comes up for 230 EQUITY PLEADING AND PRACTICE hearing the party who obtained the temporary restraining order shall proceed with his application for a preliminary injunction, and if he does not do so the court shall dissolve his temporary restraining order. Upon two days’ notiee to the varty obtaining such temporary restraining order, the opposite party may apppear and move the dissolution or modification of the order, and in that event the court or judge shall pro- ceed to hear and determine the motion as expeditiously as the ends of justice may require. Every temporary restraining order shall be forthwith filed in the clerk’s office. Rule 74. Injunction pending appeal. When an appeal from a final decree, in an equity suit, granting or dissolving an injunction, is allowed by a justice or a judge who took part in the decision of the cause, he may, in his discretion, at the time of such allowance, make an order suspending, modifying or restoring the injunction during the pendency of the appeal, upon such terms, as to bond or otherwise, as he may con- sider proper for the security of the rights of the opposite party. Rule 75. Record on appeal—Reduction and preparation. In case of appeal: (a) It shall be the duty of the appellant or his solicitor to file with the clerk of the court from which the appeal is prosecuted, together with proof or acknowledgment of serv- ice of a copy on the appellee or his solicitor, a precipe which shall indicate the portions of the record to be incorporated into the transcript on such appeal. Should the appellee or his solicitor desire additional portions of the record incorporated into the transcript, he shall file with the clerk of the court his precipe also within ten days thereafter, unless the time shall be enlarged by the court or a judge thereof, indicating such additional portions of the record desired by him. (b) The evidence to be included in the record shall not be set forth in full, but shall be stated in simple and condensed form, all parts not essential to the decision of the questions presented by the appeal being omitted and the testimony of witnesses being stated only in narrative form, save that if either party desires it, and the court or judge so directs, any part of the testimony shall be reproduced in the exact words FEDERAL EQUITY RULES 281 of the witness. The duty of so condensing and stating the evidence shall rest primarily on the appellant, who shall pre- pare his statement thereof and lodge the same in the clerk’s office for the examination of the other parties at or before the time of filing his precipe under paragraph a of this rule. He shall also notify the other parties or their solicitors of such lodgment and shall name a time and place when he will ask the court or judge to approve the statement, the time so named to be at least ten days after such notice. At the expiration of the time named or such further time as the court or judge may allow, the statement, together with any objections made or amendments proposed by any party, shall be presented to the court or the judge, and if the statement be true, complete and properly prepared, it shall be approved by the court or judge, and if it be not true, complete or properly prepared, it shall be made so under the directions of the court or judge and shall then be approved. When approved, it shall be filed in the clerk’s office and become a part of the record for the purposes of the appeal. (c) If any difference arise between the parties concerning directions as to the general contents of the record to be pre- pared on the appeal, such difference shall be submitted to the court or judge in conformity with the provisions of paragraph b of this rule and shall be covered by the directions which the court or judge may give on the subject. Rule 76. Record on appeal—Reduction and preparation— Costs—Correction of omissions. In preparing the transcript on an appeal, especial care shall be taken to avoid the inclu- sion of more than one copy of the same paper and, to exclude the formal and immaterial parts of all exhibits, documents and other papers included therein; and for any infraction of this or any kindred rule the appellate court may withold or impose costs as the circumstances of the case and the dis- couragement of like infractions in the future may require. Costs for such an infraction may be imposed upon offending solicitors as well as parties. If, in the transcript, anything material to either party be omitted by accident or error, the appellate court, on a proper 232 EQUITY PLEADING AND PRACTICE suggestion or its own motion, may direct that the omission be corrected by a supplemental transcript. Rule 77. Record on appeal—Agyreed statement. When the questions presented by an appeal can be determined by the appellate court without an examination of all the pleadings and evidence, the parties, with the approval of the district court or the judge thereof, may prepare and sign a statement of the case showing how the questions arose and were decided in the district court and setting forth so much only of the facts alleged and proved, or sought to be proved, as is essential to a decision of such questions by the appellate court. Such statement, when filed in the office of the clerk of the district court, shall be treated as superseding, for the purposes of the appeal, all parts of the record other than the decree from which the appeal is taken, and, tegether with such decree, shall be copied and certified to the appellate court as the record on appeal. Rule 78. Affirmation in lieu of oath. Whenever under these rules an oath is or may be required to be taken, the party may, if eonscientiously scrupulous of taking an oath, in leu thereof make solemn affirmation to the truth of the facts stated by him. Rule 79. Additional rules by district court. With the con- currence of a majority of the circuit judges for the circuit, the district courts may make any other and further rules and regulations for the practice, proceedings and process, mesne and final, in their respective districts, not inconsistent with the rules hereby prescribed, and from time to time alter and amend the same. Rule 80. Computation of time—Sundays and holidays. When the time prescribed by these rules for doing any act expires on a Stinday or legal holiday, such time shall extend to and include the next succeeding day that is not a Sunday or legal holiday. Rule 81. These rules effective February 1, 1913—Old rules abrogated. These rules shall be in force on and after Feb- ruary 1, 1918, and shall govern all proceedings in cases then FEDERAL EQUITY RULES 233 pending or thereafter brought, save that where in any then pénding cause an order has been made or act done which cannot be changed without doing substantial injustice, the eourt may give effect to such order or act to the extent necessary to avoid any such injustice. All rules heretofore prescribed by the Supreme Court, regu- lating the practice in suits in equity, shall be abrogated when these rules take effect. TABLE OF CASES CITED [REFERENCES ARE TO PAGES] Acme: ve MCUiR@ 6:10.86 esateo Spates weak og owe aa 55 Adams. Vs POGLe Pie orci: cae has See ee oad ae Rae ee 81 Adams v. Valentine.......... 0... cece cee cee cere eceeces 55 Alexander v. Tolleston Club............ 0.00... cece cence 130 Adlen “ve (OF Dona dicrsgrassc ens da eke Suis ks aOR 45 Allen. v.. Randol phi: sec cc 0 Saw laa canes dicen o eeea ea 72 ASTON. VV ONES 5 ook sah Roig. do SullbvwGS OR Oe eRe ED SAD Adee 16 Bailey ve Peoples. esse sn ascenwsawiaeetcekeeiatadane tess 9 Baker vs. Adm.i0£ Backus 4 2iccck ad gsavaroe wategiee eae aleacws 131 Banke, VV ei0 ocean care iaveuloceur dean seme eenale 37-45 Banks vi Manchester s.24:..sca deseo ee ede eesias eens anes 82, 83 Barton vs: Barbone ceaten sak do hres Fawaniesaaeaeeliwes 134 Baumgartner v. Brandt...............0c eee eeee Postale susan 68 Beale “ve: Béaléss.co vis csp sw oe 2 ee Rs HEN ORE ee eS 118 Bean: ve Clarkes) oi.o Gece Gaeea Ge hae Wie aia Rise dea Sree hares 15 Beecher v. Bininger.......... 0c. cece cece eee eee ee ee eens 132 Benneson. ‘v: Savate: wg cwavecesaees eee aan eee owe e eee eles 46 Berrian Vs Samlovd sy osc aici arise wes staed ooh le apeedadigl ons 105, 121 Bind: Wi Bird vious sara gee Gi Giaw 6 PERS hae Ce eee RSS 49 Blease v. Garlington........... 02... cece cee eee eee 98, 121 Bolter vi: KOZOLWSEI sacs ds sie Ging enidas aces Bae wen Ae ede eink Wes 120 Booth va Clank yecycas as ee eee ee wae erie se eS 133 Borders: ‘vi ‘Murphy .icagees ccc ceietes Seca k ca Mew ce elais o's 65 Botstord: Vi. Beersi.5ccceae hastened vised des ee Gaxsied 38 Bowen-v> Udley samen sat inate ay een gee eee eee. 89 Bowie v2. Minte? isos accu vals en eae Sane Rea aaee se weaves 52 Bradley v. McLaughlin............. 2... cee cece ence eens 123 Bromley Carpet Co. v. Field......... 20. cece ence ee eeeee 68 Brown v. City of Aurora...........eeeeeeee (shane eek 44 Buford: vi Rucketiss eicaws 4s bauer rag cvesregce eee sane 21 Bunnel v. Stoddard..........-.eeeec ce cee cee eeceeeceee 104 Bush: vi. Mattox seca cic wea wa wig cede wena os egw ie ale eae 132 236 TABLE OF CASES CITED (REFERENCES ARE TO PAGES] Caller vi: Shield’ is. g.ces004 2. w kia eed ews Sas Gree eee oe ee 54 Chapman v. Barney...........cc ccc cee cece eee eeceeeneee 22 Chatterton v. Chatterton..........ce cece eee eee eee eeeee 26 Chine: vi. Clin: 9scy-o0 es Wea SAM owe se Sle Gale eae 68 Coed ve GOS iii ceed ee RA oe Ga PG eR a aie 121 Coffin. -¥: Coopers so. ccecas coe ee are de de wiss wares eine Soto 50 Coleman “vs Hy nd6y gsm anche nie sxe eis d daigs dabibiee aeerees 83 Coman. ‘vi, Lovett. sieicccis aie vels eda Sass yew eee Oe MER Se 91 Connorton v. Millar. ....... 0... ce ccc ccc e cee eee eeeeece 88 Contee v. Dawson... ..... ccc cc cece ccc cece ete cence encees 83 Coseqtia vi Panning sss ciinie nee ansiews salen eset wae we Rie 102 COW PIO CG sos cecisassiccdacaie duslendied a isla: she SGM telesiase ie oe 100 Craig Vs People ...is0 eee eee eee Ss eas eo Reokee eneas 89 Crane Vv. Shaefer. wee sees ene see ia sew mens ee eed as 45-46 Croc KO Vs Tee ist ass od a wee eet aiak eine: ate Seara a ee aeRerades wie 28, 44 Crombie v. Order of Solon... ..... 0... ccc cece ce eens 132 CLOZICE’V.- ACBOL e Gie Boots atiea danas a Sg Sale See odwnetae eee ees 108 Dalzell v. Dueber Mfg. Co.......... cece cece cee eee rene ees 76 Davis! Vex Colter ogks csp sates sowed vee eee le oew cea 81 Davis: vi, “Gray kiee seoetds war eee cea eee aawlcen etek eine 131 Day? Vi Coleucesgcwrsnesinid ance idleness ae aie eh Mae ee ages 65 DeGroot Vi. Vays. savin swine Gaiden Re ued we Ree ee 134 Devereaux v. Fleming............ ccc ec ee cece cee cece cece 133 Dickinson v. Torrey............ cece cece eee cence 105, 121 Dillon. vi: Barmardcecs ven iaGh eae an ve ecn Season lasers 66 Dodge vs Cole: zac. cag ae ee ena eee Ger eve necaen ees Rea 3 Dowden:vi. Wilson « o3is.6h oi aa bis as RAS Gein ws Ee Hele ae 6 91 Driven ve MOrtMers oo nencetell asus ee ee eres, Mea egos OF 40 East India Co. v. Hinchman............. 2. cece cece eee ees 66 Hisenmeyer' V: Sauter ic ish dk kas nates we see se abeewess 99 Ellsworth v. Curtis..... 0... cece cece e cece e eee e eee teeee 17 Ellwood v. Walter........... 0. cece ee cece eee e net cacuns 105 Himerson: ve Atwater sian aveen ans wan Ae aes eee eee 125 Parley ve Ratts0n vara cane sewaeyawaess mae Menten Sewn eaT 76 Fayerweather v. Ritch..... 0... ccc cece eee cee eee ees 105 TABLE OF CASES CITED 237 [REFERENCES ARE TO PAGES] First Nat. Bank'v:. Baker’ scci.sonc seis suits a oneness Was es 102 Fitchburg Steam Eng. Co. v. Potter................000005 123 Pitzpatnick vi Beatty sccc aidedas dec oe dae cae os ee soos 81 Hreeny:-¥; “Wreenys..coicay gtss cae diadiacs Woes operetta ede G 104 Gadgetry. Parkers voici h ki cena be ake ea oo Vehew ween eee 49 Gillham v. Madison R. R. Co......... 2... cee eee eee eee 3 GIGS) 6 LO Dae eesgececs sien Gere satees vet are euths ee eels ace mee 105-125 Gordon: vs: Reynolds v.in sisee sede b0e Sd woeew a eaweow ene 89, 105 Gorman ve Mullins. s3:c.i644eeveereue es Geu see eenieek ees 101 Gouwens v. GOUWEDS......... cc cece cece eee cen eeees 56 Green,.Vi Bish Opa asi Agena seca eeargw i ekwawaoueeaaies 125 Haines: vy: Carpenter. ..cnisvacie weiner nhien eG 2ekien awa kena, 132 Halevi: Hale. cacasleaiekuine sisd ata Meeell ei More See Rae 18 Hamilton v. Downer..... 0... cc ccc c cece eee c tenet eres 48 Hamilton v. S. N. Gold Min. Co..... 0.0... ccc cee cee en eee 104 Harding? vi Urandscseauis uae ules aMaieciein aca ceaa ates 88 Harding ¥.. Hand yices.1.0 caieaey saivcile sate ea oe digen ta Geena es 125 Haris: vi: Jacobs sc.2icsa lcd cadaedin ee kan eee eee 91 Hanpt-v,< Hennin vers satya aa ide seen eae ee eG ates 99 Hayes vi Hammond. sy. auioeneceesae ieee sees oes 99, 125 Higgins Vi Curtisa: soon. desea dered acd ceae eRe wea 78 Hooking: ‘vi Medley s+ seccekews coalw dd ies wre eae eens 38-39 Hughes: Vi Carn occa gee ais dese eed pees ae ea saleee gets 52 Hughés ‘vy. Hatchet: 0-00 niin wk eae ewe ee ea awa 132 Hurd vi God rich ccs.es ak bok oe ew ee Kaye a OS 125 Hutchinson v. American Palace Car Co..........002eeeeee 181 Jackson: vi ASHTON acetate aaa sac ales Mo waliswleaae eee 35 HackSow: Ve DA WCO soca ke Sila eer eaid aisle wea aa wtas alee 133 dackson ‘v. Sackett. .c.cccacsae sens cose sag ode aee eres 84, 102 Keeley Co. v. Hargreaves. ...... cee cece reece e eee e eee ees 123 Kimberly v. Arms. .... 0.00 c cece cece reece eet e nt ee eens 118 Kochvi Arnolds). cgecacieewns eee neu ne ee hse eee ee Re 45 Koch v. Roth... .. 0. cece cece cece eee eee ete nn eens 89 238 TABLE OF CASES CITED [REFERENCES ARE TO PAGES] Lathrop ‘ve Brambally co ccc.¢5¢eeat ee Se bie die pe ees 104, 105 TSE We Wiel ia‘ecsie acy ob ved uetd tere ae ets Sea sales 68, 82 Leeds v. Insurance Co:.. . 0... ce cee vee te sawn e nee ee iene 83 WG oe et-V2 POSTEy: <0 vasa dees Vk ww ee bak baie Oa ante a ea ie 81 Hodiza Vv. Superior ©, “Dig siese es aes ee sex eee eben os eee 131 one ye WOK od os eh ahs Be AE OE es HRSG MONEE AS es 68 Watnkh Wis Cae arses ele shas te Sewldue asad dts; bia bl galinne eS aud Geisler nee 119 Lyman v. Central Vermont R. Co........-. 0.2 eee ee eee 135 Mallow: yi. TA 6 ee detea a ih tie tee ie gee otek Me AERIS Ses 17 Marco. vi Hublithe. cs cccigeced yee kev Geaaehe Raee ee eee ee 17 Marple Vi SCOtts sins adckuw sine sGe aniios eauideaan mes eek ous 95 Massenbere v. Dennison...........-.-- ese e cece eee ees 98 Mason. v3) Blaity sts ak eeu eis aoa hae a eens 100 Martin: Vi. MOBryde:caioseed na wineels se 4 weewamodias Gevarees 45 McClay: vs INOmrisin: ie ieo in cas acs ted ue @ cde: Sue eae eo 99 MeQloskey ve Bartz iacevecciat do core aeeeaeeee 70, 72 McConoughy v. Jackson....... 0... ccc eee eee ee eee eeeee 46 MecDougald v. Dougherty............ ccc eee eee eee eee 57 Metall vi. Wirkpa tri ckes i202 ws -watedeoatels Sewn cuadaaeneaaiees 18 McGeorge v. Big Stone Gap Imp. Co................ eee ee 134 MeGowiis V2 YOUU. gx desciegs Bie als @ balan alee os wine oemeldlens 94 MeMahon, vi Rowley s.ss0 ds ees cases kar eee ave ea aw ae euwlas 121 MecMannomy v. C.D. & V. RB. RB. Co... eee eee 125 McMannomy v. Walker............. 00.2.2 ee eee eee 123, 125 Mechanic’s Nat. Bank v. Landauer.............-....0000e 134 Meteali: ve. Cad yee cee pees oa0 eer enews 49 Metropolis National Bank v. Sprague.................--- 56 Millard. vi Millard. .c..5 08 cassia asec as eave es 81, 103, 104 Miller ve Pérk8 sesh edo eae aeeeeeeee bis Pee bke ees 76 Malis:*vi? Iuarrenc es. sciiGis vanGlag wee actuelle ee Glee er Rta eee aris 56 Mohler v. Wiltberger............ 0. c cece eee eee eee cece 108 Monroe Cattle Co. v. Becker. ... 0.0... - cece eee ee eee eee ee 23 Mosier: Nortonie: siaceisinci iia ae BROS Bohn egg ets 81 Murphy: ‘vi, (Murphy, ¢cacosscnpen sess gle eee ee alee eeirey 8% 66 TABLE OF CASES CITED 239 [REFERENCES ARE TO PAGES] Ohman sy (OW Mia geht See oo oto 8 tie arn Su aay Mae Sogn 101 Onondaga Trust Co. v. Spartensburg Water Wks. Co........ 132 OPToole: stator sccsrarshn dda anid Mawaeueiw a ciendcalae ces 120 Owen vi “Ramsteado cic ecied wee eka we ee bdlnheaw dats 96 Parker vi Moore: wnt nats Aaa ees os veoh heh es aa 132 Payne Vo; HOOK olaie Gatineau Qs owes OMe oro utaiine eee aoe 18 Paxton v. Stackhouse. ...¢.0ccesers saucceuusscuauseeaue 55 Phill ps Gann Oni ers eect esse Weegee ey aloe ss eeecdegoheg ceases 94 PaOb Vs DAWAS). 5c ensciols a oho anaea Dede od area oe Ohad eke ass 86 Pipe ¥. T0atd 3:55 cae carny wae oa cdeain eee eee 9 Potter ays POC: saya nhs wenn isch oles cis en aye wines 95 Prendergast: vi NeNa lly enc 2 sacs aasrtsaws ne Ooms ei eke 125 Buriry vi PUntty sc. o ac enweudies sok doses aoe a eee 47 Ranger v. Champion Cotton Press Co..............000000- 134 Reniséni v:. REMSEM ss: sacs aw veto kheeane ad weaned 99, 122 Rhodé: [slarrd:- yi Mass io aos. aeedecrai testes Get baw Seed iy Raed 15 Richards v. Lake Shore R. R. Co....... 0... cee eee 108 FRO a Givi GOS ptm t tie artnet wauleac nit Siauluet Not 2c ane eae. that 83 ROM INE Vi ELEN s.b58 Mh e done eae oa hw A RSS eG 132 Rydér-y Batemans ccseccn ech then Cekeeeeee nee esaa ese 132 pchnadt vo Daviss.2..4snw igi eared eeeeee Meee eats 99, 122 Sbhadewald vi. White ie ociscnedesieeeen cased sevea wove 133 Shields vi Barrow sosuagaio Savane hare Mean da Sokeaeness 57 Shields 2, 3Bush vances: der taeeeerew se eee ee REE ee 55 INGE Vi StOGle scones cakes ee ae De Tee TERE 125 DOMIth: Ye AEP 6s oe scese ioe eee tee heels wks 102 South Chicago Brew, Co. v. Taylor.......... 2.00 e eee eee 91 Spencer “vi; (Goodlett fawn dar How tacchdine eae wee aes eek hanes 35 Stanord. “vic Browiycwss a orate nee eee eiaeyases 83 Stevenson vi AUSHM 2 jieccscew eda oe HEE aS eae Se 20 Stiratt v. Excelsior Mfg. Co.......... 0.0. cee cee cee eee 50 Stokes, vi Warnsworths.ccaveess erence ines dee ee eee ees 2 62 SLO! Ve MEET Y: 850.99 Sstet waht See a lence wa ena 44 Story? “vi, Livin gstolsceiisate ew sean ease ears 125 240 TABLE OF CASES CITED [REFERENCES ARE TO PAGES] Sturgeon v. Burrall.......... 0. 0c cece cee ee eens 20 Sullivan v. Railroad...... 0... cece eee ee te eee eens 47 Supervisors v. Mississippi R. BR. Co.... 6.6... ee eee eee eee ees 36 Swift ve Castles ccatnue nel cdidaabiiieteer ee dels 103, 121 Thomson v. Wooter........ccc cece reece rete cence ee eeneee 113 Tobin v. Walkinshaw..........ccce eee c cere eect eneece 17 IEVAVEeTS “Vi. ROSS) 64.0 caer Se aire ee aE oe ee 62 Troy Iron v. Corning......... 6... cece eee eee 100 Trust: Conv Re Bs Cvs cee eaiie ae ik soe eae ees ele 66 Turner Vi Banko .34 6.244 calc k dee nee ee ee ese See ootee es 46 Union Bank of La. v. Stafford........ ccc eee eee ee ee eee 20 U. M. Life Ins. Co. v. Slee... 2. ccc ee eee e ce eee tenn nes 122 Varick i SMiths a:2ces esd eee eee awww ee eee ee 48 Walker: vi Powers! ci cs ocede ec eae vee dd esw se yews ewes 49. Walsh: vw: Smy tie ce20. cgi e bea a Ree ee ee SR 90 Wanneker v. Hitchcock........... 000 - ee ee cee eee eee e eee 132 Wraska,:Vi- Kiaisne? ccc gece nee ew sure heGe seo Sea ews 124 Weaver ve “Alter iiwicc se sew vere ein ar eae eee sew 57 Westervelt v. Library Bureau............ 2. ee ee eee eee 76 WHICOK Vi A MGI re cscs Braeden bhi nak Se aust one Gare eee Re ES 55 Walder vi Keeler iccs.c sc aaieee eain vie, cater wie ac wera eerale dene 52 "Wilkitt Ni Walk 0554 ened oe diese yareien ance eee ens aeeies 40 Wilhamson: Vi Monroe? cases vais ae ctiiewisa aa ees a eeaes ee 13 Wilson v. Eggleston........... ccc cece eee e ee enee 44 Wir ls omni vs... BSMIN Oss Soe. Sol ay ne ia ace i'd dronidtaned itso pda ave oocaa borate eis once elec 90 Whitnge vo Baitkss cis ease ntigieses sewee one oes 54 Witney We. May 05 ieciasts cine eo ast aaa ae areiates eee Sas 21 "Woods: ‘v: .Morrell. occ avceeas ei cds peered de Ke dees ae 50 Woodland Bank v. Heron........... 0. cece ee eee eee eee 133 Wooster v. Gumbriner......... 0... cece eee cece eee eens 119 Worthington, Vi Leek ois cs ese eens ee Ged eek eee ee ook ee 17 Wright V5. rank’ socal aiensas Sea leingw sales Os eee Ree 57 Yarnell {vi Brows sais ois sitec aed aco Saas Sea wae HANES 112 INDEX [REFERENCES ARE TO PAGES] Account, forms of before master, Rule 63................ 227 form of order of reference............... 0000 cee e eee 172 matters of, reference to master, Rule 59.............. 226 to be identified but not stated in master’s report, Rule 61 226 Action, at law erroneously begun in equity, transfer, Rule 22 214 joinder of, causes of, Rule 26..................00005 215 to be prosecuted in name of real party in interest, Rule Sh geet He GILG educa cere ish ares ree TRAN ae Lo ea Mano aede OU aoa we 218 Abatement, defenses formerly presentable by, to be made in answer; Rule 29) o.g.00o300e 142 ele eae eee fads 216 Absence of persons who would be proper parties, Rule 39.. 219 Address; Of “Dil. cree ccsestiakeen a sid etaaea eseeed evan ta eee weno 34 Adequate remedy at law.......... 0. cece cece eee eens 13 Additional rules by district court, Rule 79............... 232 Administrator as party, Rule 37.....................05. 218 Admissibility of evidence to be passed on by court, Rule 46 220 Admission of execution of documents, Rule 58............ 224 Advancement of cause, Rule 6................2..0 000 eee 210 Affidavit in support of motion to set aside order pro confesso, form? Of n.iiceenneok areola erase seas ee ee 148 of expert witnesses in patent and trade mark cases, Rule ABI Nets costae GtBamesomGy shh the, taped learnt at acasiiiey 221 of non-compliance with decree for attachment to issue, ULE Os esas hed oe ee one nn tethers ane te ease seas 211 of service of process to be made by person appointed therefore; Rule 16... 060.6000 scsanveseniewades 213 on application for preliminary injunction, Rule 73.... 229 previously used in court, may be used before master, Rule “644 ss 6 va ieee tae Ge tek Gala eye eae RES 227 required on application for continuance, Rule 57..... 224 to be identified but not stated in master’s report, Rule G Lec ear eenvnerareectare deine Saas wa He Sore Cee eae os 226 242 INDEX [REFERENCES ARE TO PAGES] Affirmation in lieu of oath, Rule 78........... 000s eens 232 Avapnaiive Peel by anew ckaeskssexe wi axons sskv seers s 56 Agreed statement, record on appeal, Rule 77............. 232 Allegations are the foundations of the proofs............ 46 of bill deemed confessed if not denied or explained, Rule $0ceiecj asc cecdae as ea eer ea che ee ee sioee aces 216 Allegation of defendant’s claims................ee-ee eee 47 Alternative defenses may be stated in answer, Rule 30.... 216 QLOUNGS:- OF SWiticeG wae needed ese wee eeee eee 47 Amended bill, answer to, Rule 32...........-..-..-.005- 217 NeW (ANSWER TOs ice tn dh ed aa nled Sate a bide ids tia eee eee ales 90 Amend, petition for leave to, form of..............0+--. 169 Amendment, by supplemental bill.....................4. 91 clerical mistakes in orders and decrees, Rule 72........ 229 generally, Rule 19........ 0... ccc ce ccc ce eee eens 213 if material vacates all defaults...............0-0008- 91 leave must be obtained for............. 0.0.00 cece eee 90 MOCHOG' OF cose: Wire aca weepan yee ah ata sare mA ec aera need 90 Of AUSWE? sae eda ete Wee REE owe awe Re 90 of bill ag of course, Rule 28........... 0... cece ee ee 216 of bill, calls for new answer, Rule 32................ 217 of bill in lieu of special replication...............-.04- 88 Of bills form OF sec sncnws eee eR ES RRs BA ROE SY 169 of bill when as of course, Rule 28.................. 216 of pleadings on substitution of parties, Rule 45....... 220 on suggestion of defect of parties, Rule 48............ 220 NAL rOl. ky ew hand Rae es asieR ew Ss Beet 88 not after defendant’s pleading filed, except, etc., Rule OB seduce abit led Vout anes sald Siete talay Seavtas ier haa Radeon b as Bigs Ole Sa 216 permitted of any process, pleading, record, etc., Rule 19 213 should not make different case............c cee ee eees 88 to avoid variance in the proofs..............eeceeees 91 to conform to proofs.............. oT apiesttons et SS ands thateretele 89 WIHCIL ANAC Gi itaacie oe alte Stas data iesia er omnene ee dead Ou 89 Anomalous: plea . ssa og ssn eee ghee aside wee ole wa ed 71 plea TORN Ok nasi oelon tive iret Mr Mia pereee Mace ea nea w oe OS 156 Answer, affirmative, relief upon......... 0... cece ees 82 AMEN GING sree ati Sa baa sea ee peeled ecew sew ee 90 amendment of by leave on reasonable notice, Rule 30... 216 INDEX 243 [REFERENCES ARE TO PAGES] Answer—Continued averments of and proofs must correspond............ 81 cause at issue on filing of, unless, etc., Rule 31........ 217 compelling Dull answer swiss. eseeskxce den dee seasiew es 80 contents, counter-claim, Rule 80..................0.. 216 defenses formerly presentable by plea in bar or abate- ment to be made in answer, Rule 29............... “216 defenses to be presented in, Rule 29.................. 216 effect of not answering certain allegation of the bill.... 78 enlarging time for filing, Rule 16.................... 213 exceptions for insufficiency of, abolished, Rule 32..... 217 CXCEPHONS COs uit eins eke atistia s Ged oie duck ae Mewes meiel 83 exceptions to for scandal and impertinence, shall not Obtain Rule. 2d cincas cord ties oa tee ees emer eee nase 214 LORI, OL. neciea aid sence Sti sie dane acon wiaetaleerat wiser dene 158 if demurrer in answer ........... 00 cece cece cece ees 82 if insufficient may be amended or matter stricken out, RUNG 1. OF cdoscecaaik Syue tee BG) cond aoe HA asad eS Nae ROCs 217 if not filed, pro confesso decree entered, Rule 29...... 216 in support of plea.............. 0. cece eee eee pale te in support of plea, form of.................0.0000- 156 may be stricken out for failure to answer interrogatories or produce documents, Rule 58................... 224 may state defenses in alternative, Rule 30............ 216 must state counter-claim, Rule 30..........,........ 216 must answer every allegation of the bill.............. 79 must avoid general denial of averments of bill, Rule 30 216 new answers to amended bill....................... 90 new answer to amended bill to avoid default, Rule 32... 217 not required to certain allegations................... 81 plea and demurrer in federal courts................. 161 should avoid pleading conclusions of law............ 81 subpoena, proper process to compel, Rule 7........... 210 sufficiency Of, Rule.335. 4042 4va4 ie ovandier eden sew oly 217 time for, Rule 12. sce... nsnawea dinate ea Sew ak She Lig 212 testing the legal sufficiency of...............-...00.. 82 to amended bill, Rule 31....5.0.. 00. 608 ceed eee gees 217 to be filed if motion to dismiss denied, Rule 29........ 216 to be filed within time named in subpoena, Rule 16..... 213 244 INDEX [REFERENCES ARE TO PAGES] Answer—Continued to be filed 20 days after service, Rule 12............. 212 to be identified but not stated in master’s report, Rule 61 226 to omit statement of evidence, Rule 30............... 216 to specifically admit or deny, or explain facts upon which plaintiff relies, Rule 30.......... 0... cece eee eee 216 two-fold nature Of. ...... 2... ccc eee eee ee eee ees 18 WAIVING BANIC: o acs ecto eves nuee eee de ees Sew eee 84 what to contain, Rule 380............ 0. cc ccc cee eee 216 when defect of parties suggested, proceedings on, Rule AD, a Sapiet ebb aS ones hai a madera ccrhvgale tlecauandeane: anes eaect pment 220 when not under oath is mere pleading................ 79 when to be filed on motion to set aside decree pro con- fésso; Rulén Vee easac pee aes i Oe ees 213 when required under oath is evidence................ 79 Appeal, abstract of evidence to be filed in clerks office, Rule WD. acy syocth aed aeea ee edie ROW aE Sad Seee ee eeeeles 230 appellate court not to reverse except for material preju- dice, Rule46s . acc ecwu vas ettae eek bees cn de sulwees 220 form of citation UPOD.......... cece cece ce ee eens 207 form of petition for... 2.0... . cc cee ccc 207 injunction pending, Rule 74............ 0... cece eee 230 omissions in transcript on, Rule 76.................. 231 record, agreed statement, Rule 77.................. 232 record, costs, correction of omissions, Rule 76......... 231 record on, difference as to, Rule 75.................. 230 record, reduction and preparation, Rule 75........... 230 Appearance, effect. Of. «isos cece ew tiie esata wee cee eeu lel 26 filed with clerk to be noted on equity docket, Rule 3.... 209 POPUUIOL 55 sais se Pig gona rea io Sas alge ee aah hee Dakine 146, 147 special Or LMIted wie sage reese se eae te ade