I UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW LIBRARY u ^^6?X^^rz.^.^:4:.<^c^ PUTERBAUGH'S Common Law Pleading and Practice. (COMPANION WORK TO PUTERBAUGH"S CHANCERY PLEADING AND PRACTICE.) THIRD EDITION, containing 867 pages, embracing 348 practical forms of declarations, pleas replications, rejoinders, etc., and other papers necessary in the practice, with elaborate notes following each form. Printed in l)est style on the finest 60 lb. paper, and bound in the best style of law binding. This work has been almost entirely re-written, especially the forms, ■which have been carefully revised, and generally shortened. Many new forms have been added, among others, forms of declarations in actions under the Liquor Law of 1872, etc. I'lilCK, $7.50 I'ER COi'Y. LESLIE PUTEEBAU6H, Agent, 25 Nixon Block, Chicago. RECOMMENDATIONS. (From the Chicago Times, April 18tli, 1873.) Putebbattgh's Common Law Pleading and Practice.— This is a handsome volume in the large type and inevitable binding of legal literature. It is professedly only a third edition of Judge Puterbaugh's well-known and equally well-approved book ; but in fact, it has been almost entirely re-written, especially the forms, which have been carefully revised and generally shortened. In its present form it does for the profession in Illinois what Chitty's incomparable work did for the bar of England. It is a complete code of common law practice in Illinois ; but in addition to this it treats of attachment, scire facias, mandamus, quo ivarranto, certiorari, and luibeas corims ; also, of the details of practice, such as security for costs, change of venue, continuances, amendments, evidence (witnesses, depositions, etc.), jury, trial and verdict, new trials, arrest of judgment, cou- fession of judgment. Under the various heads practical forms are given wherever necessary, and very full references to the authorities are made throughout, particularly to Illinois reports. Though an Illinois book, it will be useful and convenient in such other of the states as retain the common law practice. Where precedents in like cases were f<>und in Chitty, their general framework has been retained ; but redundant words and averments rejected. New forms have also been added ; among others, forms of declarations in actions under the liquor law of 1872. The plan of the work will be recognized by the profession as simple and convenient. At the beginning of the chapter upon a particular species of action are some general obser- vations upon the nature of the action, the cases in which it is the proper remedy, etc. Then follow forms of declarations in particular cases ; then the defenses to the action are treated of, and the forms of pleas, replications, etc., are given. Under the various forms are remarks upon the actions, or defenses, with references to the authorities. For example, under the forms of declarations by indorsees against indorsers of promissory notes, an epitome of the law of Illinuis iu that regard is given, from the etatntee and adjudged cases. The style of the author is exceptiounlly irood, language being used with great clearness and precieion. It will be of interest to the profesi'ion to learn that Judge Puterbaugh intends publishing shortly a companion volume — a work on pleading and practice in enits in chancery. In his introduction, Judge Puterbaugh makes a graceful acknowledgment of the assistance rendered m the preparation of the work by James St. Clair Boal, Esq., of the Peoria bar. (From the Chicago Legal Xews, April 8th, 1873.) PuTEUBAUGU's Common Law Pleading and Practice.— The present edition of this work comprises a volume of 867 pages. It is upon the same general plan as the former editions, but the whole work has been thoroughly revised, greatly improved, and almost entirely re-written ; the forms have the appearance of having been carefully corrected, and in many of them, shortened, and new ones have been added ; it has also been changed to suit our recent statutes upon pleading and practice, and many additional authorities have been consulted and cited in the notes. The references to the Illinois reports include the 55th volume. This edition also contains forms for declarations under the various provisions of the act of 1872, to provide against the evils resulting from the eale of intoxicating liquors iu this state. The present edition is a great improvement upon any former one, and will be found to be a useful and valuable hand-book to any niinois lawyer who consults its pages. It is entirely free from the rubbish of ages. The author assumes to give the practice as it is, and not as it was a hundred years ago. We thank Judge Puterbaugh for presenting us with the first finished copy of the edition. (From Chief Justice Lawrence, of the Supreme Court.) Galesbuiy, Illinois, Apiil kth, 1873. Hon. S. D. Puterbaugh, Dear Sir ; I have examined with some care the third edition of your work on Pleading and Practice. It will, in my opinion, be of great use to prac- tieing lawyers, and especially to young practitioners of this state. Its forms of pleading are carefully prepared and sufficiently numerous to cover almost every variety of suit in the different common law actions. The legal principles applicable to each action are carefully stated, and the cases sustaining them are fully cited from our reports and those of other states and of England. The rules of practice in the conduct of a suit to final judgment are also clearly and concisely presented. I hope the work may meet with such acceptance from the bar as to reward you for your labor. Yours very truly, C. B. LAWRENCE. (From Justice Walker, of the Supreme Court.) Rushville, Illinois, March 31st, 1873. Hon. S. D. Puterbaugh, Dear Sir : I have examined with some care, and as far as time would permit, a copy of the third edition of your work on Pleading and Practice. I find it much enlarged and greatly improved, both in the matter and in the precedents. It seems now to be what has been much needed by the profession, a convenient and reli- able work that must save time and facilitate the labors of the practitioner, and should be in the library of every lawyer. I hope it may meet with an extensive sale and your labor receive the reward it merits in preparing so valuable a contribution to the profession. I am, sir, yours, etc., P. H. WALKER. (From Justice Scott, of the Supreme Court.) Bloomington, Illinois, April Sd, 1873. Hon. S. D. Puterbaugh, Peoria, HI., Sir: I have examined your "Common Law Pleading and Practice," and find it a very valuable work. It has evidently been prepared with great care and thorough knowledge of the subject treated. It will be of great service to every practising lawyer and especially in Illinois, and I have no doubt it will be received with favor. Respectfully, JOHN M. SCOTT. PXJTERBAUGH'S CHANCERY PLEADI^^G AND PRACTICE A PRACTICAL TREATISE ON THE FORMS OF CHANCERY SUITS, PLEADING AND PRACTICE, NOW IN USE IN THE STATE OF ILLINOIS, AND WHEREVER THE SAME SYSTEM PREVAILS. WITH FORMS OF BILLS, ANSWERS, PLEAS, DEMURRERS, EXCEPTIONS, PETITIONS, ORDERS, DECREES, ETC. SABIX D. PTTERKAUGH, LAIS ONK OP THE JCDGE'' OF THB CIBCCIT C"IET. LESLIE PUTERBAUdH. Agent. as Nixon Block, Chicago, III . T Entered according to Art of Congress, in the year 1874, by SABIN D. PUTERBAUGH, In the Office of the Librarian of Congress, at Washington. 5 ) I INTRODLXTION. The object of the pi-esent work is to present, in one volume of convenient size, a practical treatise on pleading and practice in suits in chancery, and proceedings of like nature ; and to suggest forms for pleading and other papers necessaiy for preparation by the practitioner. The lirst chapter consists of a very brief reference to the general principles of equity pleading ; the second points out the mode of instituting a suit; the third treats of the general requisites of an original bill, and of the several con- stituent parts thereof; and the fourth gives the forms of the various parts of an original bill. The fifth chapter refers to the mode of bringing parties into court, and includes process of appearance, summons, service and return of process, notice by publication, service by copy of bill, and compulsory process to compel an answer. Taking bills as confessed, defaults, elfect of defaults, rights of defendants after default, setting the same aside, and pro- ceedings to vacate a decree against a defendant not personally notified, are considered in the sixth chapter. Chapter seven treats of the various modes of defense, and steps to be taken by the defendant after service of process ; the difterent sorts of defenses, including exceptions, motions, demurrers, pleas, answers, disclaimers, etc. The eighth con- eiders exceptions to answers for insufiiciency, and scandal and impertinence. The ninth refers to amendments to bills ; and INTKODUCTION. the tenth to replications, the nature and eflect of, and when to be hied. The eleventh refers to the manner of obtaining testimony, production of books and writings, taking depositions, taking proofs before the master, etc., to be used on the hearing. The twelfth treats of feigned issues, forming issues of fact under the statute to be tried by a jury, etc. The thirteenth refers to the. course of jjroceeding on the hearing; and the four- teenth to decrees and decretal orders ; the nature, uses and different kinds thereof; and their constituent parts. The work thus far includes the method of instituting, conducting, and defending an original suit in chancery, from its commencement to and including the final decree. Bills not original in their nature, including supplemental bills, bills in the nature of supplemental bills, bills of revivor, bills in the nature of bills of revivor, bills of revivor and supplement, and bills of review, are consid- ered in the fifteenth to twentieth chapters inclusive. The twenty-first treats of bills of discovery; the twenty-second, bills of interpleader; the twenty-third, bills and petitions to perpetuate testimony ; and the twenty-fourth, of cross-bills. Then follow chapters relating to proceedings in special cases, such as bills for specific performance, bills relating to partner- ship matters, bills to redeem, bills to foreclose mortgages, creditor's bills, partition suits, proceedings for dower, bills for divorce, separate maintenance, bills to quiet title, bills to set aside wills, ne exeat, bills to restrain waste, bills relating to trusts, proceedings to enforce mechanic's liens and injunctions. This work contains 252 jjractical forms, given in connection with the various subjects under consideration. These embrace 60 forms of bills, 15 of answers, 17 of demurrers, 17 of pleas, 12 of petitions, 17 of affidavits, 71 of decrees and decretal orders; the balance are miscellaneous. So far as they could INTEODUCTION. 9 be found applicable to the present practice and times, they have been drawn from the best and most authoritative sources. Others I have ventm-ed to frame, and while they may not be regarded with entire confidence, I trust that they are, in the main, safe, and will be taken as suggestions merely, and not as models. In the preparation of this book I have consulted freely the leading works on equity pleading and practice, among others Story's Equity Pleading, Daniel's Chancery Practice, Bar- bour's Chancery Practice, Cooper's Equity Pleading, Mitford's Equity Pleading, Welford's Equity Pleading, Barton's Suit in Equity, Hunter's Suit in Equity, Van Heythusen's Equity Draftsman, and Seaton's Forms and Decrees, and all the leading reports so far as accessible, and particularly those of Illinois so far as published. I have no doubt that many errors and imperfections will be discovered herein. This being the tirst edition, errors are unavoidable. I shall esteem it a special favor if my pro- fessional brethren will point out to me such errors and omissions as they may discover, to the end that they may be corrected or supplied in the next edition. In submitting the present work, I wish to return my grate- ful acknowledgments for the favor with which the three editions of the Common Law Pleading and Practice have been received by the profession, and trust that this treatise will meet with and deserve as favorable a reception. S. D. PUTEKBAUGH. Chicago, June 20, 1874. ANALYSIS OF CONTENTS. CHAPTER 1. GENERAL PRINCIPLES OF EQUITY PLEADING 32 CHAPTER II. COMMENCEMENT OF A SUIT IN CHANCERY. Section 1. How commenced 35 2. Where commenced 36 3. Security for costs 37 When required 37 Forms of bonds for 38 CHAPTER HI. BILLS IN CHANCERY. Section 1. Division op bills 39 2. Constituent parts op an original bill 40 3. The address 41 4. The introduction 41 5. The premises, or stating part 42 Certainty required 48 Exhibits 48 The bill must state the whole subject 48 And not too many subjects 48 Matters not divisible 48 Multifariousness 48 Scandal and impertinence 51 Scandal 51 Impertinence 52 6. Confederating part 52 7. Charging part 53 8. Jurisdictional clause 54 9. Interrogating part 55 10. Prayer for relief 56 12 ANALYSIS OF CONTENTS. 11. Pkayer for process 58 12. Frame of bill 59 13. Signing of bills 59 14. Swearing to the bill 60 15. Parties to bills 61 Who should be made parties C3 How described 63 Persons under disability 63 Interest of parties 64 Joinder of parties 64 Want of proper parties 65 Misjoinder of, etc 65 16. Ancient bills 66 Form of 66 Observations on 67 CHAPTER IV. FORMS OF THE CONSTITUENT PARTS OF AN ORIGINAL BILL. I. The address 69 II. The introduction 69 III. The premises, or stating part 70 IV. The confederating part 71 V. Charging part 71 VI. Jurisdictional part 72 VII. Interrogating part 78 VIII. Prater for relief 73 IX. Prater for process 73 CHAPTER V. PROCESS FOR APPEARANCE. Section 1. Summons 74 2. Service and return op summons 75 How served 75 The return 75 8. Notice by publication 77 Time of publication 77 Forms of affidavits for pxMication 78 Continuance for 79 4. Service by copy op bill 79 Form of notice to be served with 80 Form of affidavit of service 80 5. Unknown persons as dependants 81 ANALYSIS OF CONTENTS. 13 9. 10. Attachment gj How obtained gg Form of affidavit for 84 Form of order for §4 Attachment with proct.amation 84 Commission of rebellion 85 Sergeant-at-arms 85 Sequestration 86 CHAPTER VI. Section 1. TAKING BILLS AS CONFESSED. Default 87 When it may be taken 87 Rule to answer 87 Effect of default 88 Rights of dependant after default 90 Setting aside a default 90 Form of affidavit iii support of motion to 91 Setting aside decree when dependant is not person- ally notified 91 Form of petition for 93 CHAPTER VII. THE DEFENSES TO A SUIT. Section 1. Proceedings by dependant previous to putting in his ANSWER 94 Exceptions to bill for scandal or impertinence 95 Form of 95 Motion for production of papers 96 Motion for security for costs 96 2. The different sorts of defenses 97 By demurrer 97 By plea 97 By answer 97 By disclaimer 97 By demurrer, plea, answer and disclaimer 97 A cross bill 98 8. Demurrer to a bill 98 Its nature and uses 98 Where it will lie 102 General demurrer 104 Special demurrer 104 14 ANALYSIS OF CONTENTS. Several causes of demurrer 104 Separate demurrers 104 Speaking demurrer 105 Demurrer, ore tenus 105 Demurrer coupled with answer 106 Demurrer to plea or answer not tolerated 107 When to be filed 107 Hearing of 107 EflFect of sustaining 107 Eflfect of overruling 107 Frame of a general demurrer 108 Short form of 109 Form of demurrer to Mil in U. 8. court 109 Certificate of counsel to 110 Affidavit to 110 Fhi'm of demurrer for want of equity 110 For multifariousness Ill For want of parties Ill For want of privity Ill Fbrm of demurrer to bill of discovery, etc Ill Defendant has no interest 112 Demurrer to part of the bill 112 And answer to residue 112 4. Plea to a bill 113 Nature of 113 When proper 114 I. To the jurisdiction of the court 115 II. To the person 115 III. To the bill 116 IV. Pleas in bar 116 Frame of plea 116 Form, of pleas 119 Commencement and conclusion of 119 To a part of 119 In abatement 120 Of coverture 130 Of infancy 121 Not administrator 121 Alien enemy 121 Want of 'proper pai-fi<:s 122 Former suit pending 122 Statute of limitations 123 Of release, with answer 123 Stated account 124 Pita to part, and anstcer to residue 125 Signing of plea 126 When to be sworn to 126 When to be filed 126 ANALYSIS OF CONTENTS. 15 Beplication to plea 127 Amended to bill after plea 127 Demurrer to plea not proper 127 Argument of plea 127 Effect of allowing plea 128 Saving benefit of to hearing 129 Overruling plea 130 When to be supported by answer 130 5. Answer to a bill 132 Nature of 132 Exceptions to 136 Fraud, how alleged 136 Mode of answering 137 Affirmative not allowed on 138 Frame of 138 Answer may be joint 138 Swearing to answer 140 Waiver of oath 141 Effect of sworn answer 142 When evidence against co-defendant 142 Admission in answer 142 Answer of a corporation 148 Answer of infants, etc 144 Forms of answers 145 The titles 145 The Commencement 145 Common forms in framing 147 Forms of 148 General 148 Affidavit to 149 Short form of answer 149 Answer of infants by guardian ad litem 150 Statement claiming benefit of statute of frauds. . . 150 Conclusion of, insisting that complainant has ade- quate remedy at law 150 When to be filed 151 Answer to amended bill 151 Amendment to answer 152 6. Disclaimer 153 Nature of 153 Form of 154 Form of answer and disclaimer 155 if. ANALYSIS OF CONTENTS. CHAPTER Yin. EXCEPTIONS TO ANSWER. Section 1. Nature of 157 2. For insufficiency 158 In what cases they lie 158 How taken 158 8. For scandal and impertinence 160 What is 160 When to be fijed 162 Form of, for insufficiency 162 For scandal and imjyeTttnence 162 Form of order to expunge scandal and impertinence . . . 163 CHAPTER IX. AMENDMENTS TO BILLS. When to be made 165 When not allowed 167 Form of petition for leave to am,end 167 Form of order for leave to amend 168 Form of amendment 169 CHAPTER X. REPLICATION. Nature of 170 Within what time to be filed 170 Issue made » 171 Effect of filing 173 Withdrawing 172 Form of 172 CHAPTER XI. TESTIMONY. Section 1. Production of books, etc 174 Documents in hands of third persons 175 Form of petition for production and inspection of papers 175 Form of order for 176 3. Depositions 176 Of resident witnesses 176 ANALYSIS OF CONTENTS. 17 Of non-resident witnesses 177 Notice, etc 178 Of non-resident witnesses upon oral interrogatories, etc. 179 Manner of taking, etc 180 3. Evidence taken by master in chanceky 18:i Form of order of reference 183 Form of master's report 184 Form of objections to 185 Forra of exceptions to 185 4. Oral testimony 186 CHAPTER XII. FEIGNED ISSUES — TRIALS BY JURIES. Nature of 188 Form of order directing, etc 190 Drawing up, etc 191 CHAPTER XIII. HEARING. Course of proceeding 192 Hearing case out of its order 193 Original and cross-bill heard together 193 Effect of former orders on the hearing 194 CHAPTER XIV. DECREES AND DECRETAL ORDERS. Section 1. Nature, uses and kind of decrees 195 Interlocutory decree 195 Final decrees 196 2. Forms of decrees 198 Constituent parts 198 Caption and title 198 Form of 198 Recitals of 198 Forms of rexitals 199 The ordering part. . . . • 199 Declaratory part 200 Decree by consent 200 Nunc pro tunc clause 200 Drawing of decrees 301 General form of order 203 General form of decree 302 General form of order or decree 202 2 18 ANALYSIS OF CONTENTS. CHAPTEK XV. SUPPLEMENTAL BILLS. Section 1. Nature of, and when proper 203 2. When to be filed 205 3. Parties to 205 4. Forms of bills ^ 207 Prayer of -207 Form of hill 208 Form of hill '. 209 5. Petition for leave to file 210 Form of 210 6. Process, etc 211 7. Defenses to 211 Demurrer 211 Form of demurrer 212 Plea 212 Practice as to demurrers and pleas 213 Form of plea 213 Answer 213 8. Replication and evidence 214 Replication 214 Evidence 214 9. Hearing 215 Entitling orders in ^ 215 Dismissing bills of 216 CHAPTER XYI. BILLS IN THE NATURE OF SUPPLEMENTAL BILLS. Section 1. Original bills in the nature of supplemental bills. 217 When proper 217 Form of 219 Proceedings upon 222 2. Bills to carry decrees into execution 222 Nature of 222 Form of 223 CHAPTER XYIL BILL OF REVIVOR. Section 1. Nature of bill of revivor 225 2. When propeis 226 Before decree 226 After decree 227 ANALYSIS OF CONTENTS. 19 a. Against whom to be filed 228 Before decree 228 After decree 229 4. Frame of bill 230 Must pursue original bill 230 Forms of bill, before decree 230 Forvi of Ml, after decree 231 5. Defenses to 233 Demurrer • 233 Plea 233 Answer 234 6. Replication 235 7. Order to revive 236 Form of order 236 8. Hearing 237 9. Effect of revivor 238 CHAPTER XVIII. BILLS IN THE NATURE OF BILLS OF REVIVOR. Section 1. Nature and uses 240 2. Parties to 242 3. Frame of bill 243 Form of 243 4. Defenses to, and proceedings upon 245 CHAPTER XIX. BILLS OF REVIVOR AND SUPPLEMENT. Nature of, and when proper 248 Practice upon 347 Form of 247 CHAPTER XX. Section 1. BILLS OF REVIEW. Nature of, and when proper 349 Where it lies 249 For error of law 251 Newly discovered evidence 252 Parties to 254 Leave to file 255 Performance of decree 256 Petition for 266 Form of petition fir 257 20 ANALYSIS OF CONTENTS. r*- *V. Within what time to be brought 258 Form of order for leave to file 259 Form of bill 259 For error of law 260 For newly discovered evidence 261 Affidavit to hill 262 Defenses to 262 Plea 262 Demurrer 264 Form of pleu to 265 Form of demurrer to 266 CHAPTER XXL BILLS OF DISCOVERY. Section 1. Natuee of, and when proper 267 2. Frame and form op 269 Form of hill 270 3. Defenses to 272 Demurrer 272 Form of demurrers 274 Plea to 274 Form of pleas to 275 Answer to 276 Practice upon, generally ■ 277 CHAPTER XXII. BILLS OF INTERPLEADER. Section 1. Nature of, and when proper 279 Nature of 279 2. Form of bili 283 Affidavit of non-collusion 283 Form of hill 284 Form of affidavit to 285 8. Defenses to 286 Demurrer 286 Forms of demurrers 287 Answer 287 Injunction, etc 288 Form of order for injunction 289 Taking bills for confessed 289 Evidence 290 4. Hearing and decree 290 Costs 291 Form of interlocutory decree 293 ANALYSIS OF CONTENTS. 21 CHAPTER XXIII. BILLS AND PETITIONS TO PERPETUATE TESTIMONY. Section 1. Nature of the proceeding 294 2. Frame of a bill to perpetuate testimony 294 Form of bill 297 3. Defenses and proceedings 298 Demurrer 299 Answer ■. 299 4. Petition to perpetuate tkstimony 300 In what cases proper 300 The petition 300 Form of petition 301 Affidavit to 301 Commission to take depositions 302 Docketing petition 302 Notice to parties 303 Manner of taking testimony 303 Depositions may be used 303 CHAPTER XXIY. CROSS-BILLS. Section 1. Nature of 305 2. Frame op bill 307 Forms of bills 308 3. When to be filed 312 Leave to file 313 4. Process upon 313 5. Defenses to 314 Demurrer 314 Pleas 315 Answer 315 6. Proceedings upon 316 CHAPTER XXY. BILLS FOR SPECIFIC PERFORMANCE. Section 1. Nature of, and when proper 317 Lost instrument 323 Of an award 324 Parol contracts 324 2. Parties to 325 3. Frame of bill 326 Forms of bills 327 22 ANALYSIS OF CONTENTS. Decrees 333 Declaration of right, etc 333 Reference of title 334 Payment of purchase money 335 Delivery of deeds 335 Form of order of reference 335 Form, of interlocutory decree for account 336 Form of final decree, etc 336 CHAPTER XXYI. BILLS RELATING TO PARTNERSHIP MATTERS. tSection 1. Where dissolution "will be decreed 338 3. Account between partners 340 3. Appointment of receiver 341 When appointed 343 4. fokms of bills 343 5. Forms of decrees and orders 347 CHAPTER XXVIl. BILLS TO REDEEM. Section 1. Nature of 350 Deed absolute on its face, etc 351 3. WnO MAT REDEEM 353 3. Within what time to be filed 353 4. Parties to 354 Complainants 354 Defendants 35(i 5. Terms of redemption 357 6. Frame of bill 359 Forms of hills 360 7. Decrees 367 Form of decree for redemption 368 CHAPTER XXVIII. BILLS TO FORECLOSE MORTGAGES. Section 1. General nature of 370 2. When proper 371 3. Parties to 373 Complainants 378 Defendants 373 4. Frame op bill 375 FormsofUlU 376 ANALYSIS OF CONTENTS. 23 Trust deeds and sale mortgages 382 Form of bill to foreclose trust deed 383 Strict foreclosure 384 Parties to 385 Form of hill for strict foreclosure 386 Defenses to 388 Decree of foreclosure 389 Forms of decree of sale 391 Form of decree of strict foreclosure 394 CHAPTER XXIX. CREDITOR'S BILL. Section 1 When creditor's bill may be filed 396 When proper 397 Justice's judgment 398 In U. S. courts 398 2. What may be reached by 398 3. Parties to the bill 400 Complainants 400 Defendants 401 4. Priority of liens of bills 403 5. Frame of bill 404 Prayer 405 Swearing to 405 Forms of hills 406 Form of hill in aid of execution 413 Fmnn of hill against executrix 416 Form of order ajipointing receiver 419 Form of order of reference 420 Form affinal decree 420 Form of decree setting aside fraudulent conveyance 422 CHAPTER XXX. PARTITION SUITS. Section 1. Nature of, and how instituted 423 2. Parties to 426 Complainants or petitioners 426 Defendants 427 Unknown defendants 428 Purchaser pendente lite 428 3. Bill or petition 428 Form of petition 428 Forms of hills 429 24 ANALYSIS OF CONTENTS. Forms of bills for- partition and dower 433 Form of petition foi' partition 435 4. Process of appearance in 436 How summoned 436 Absent defendants 436 Service by copy of petition, etc 436 5. Interpleader 437 Liens on shares of part owners 437 6. Decree for partition 437 Hearing 487 Appointment of commissioners 438 Allotment of dower, etc 438 Forms of decrees for partition 439 Form of decree for partition and dower 441 7. Proceedings by commissioners 443 Required to take an oath 443 Form of oath 444 Duty of commissioners 444 Report of commissioners 445 Forms of reports of co^nmisdoners 445 Form of decree confirming report 447 8. Exceptions to report of commissioners 44S 9. Decree op sale 448 Dower interest 449 Interest of unknown owners .... 449 Form of decree for sale 450 10. Exceptions to report of sale 451 11. Confirmation op sale 451 Form of decree confirming sale 452 CHAPTER XXXI. PROCEEDINGS FOR DOWER. Section 1. Nature of dower 453 2. In what dower attaches 457 Aliens entitled to 459 In lands mortgaged before marriage 459 In lands mortgaged to secure purchase money 459 Dower in surplus after sale on mortgage 459 Not in estate created by mortgage 460 3. Dower, how barred 460 By jointure, etc 460 By will, etc 461 Renunciation of will 463 EfiFect of divorce, etc 468 By abandonment and adultery 464 Not by judgment, etc 464* ANALYSIS OF CONTENTS. 25 When by exchange of land 454 Persons selling by order of court 465 4. Elements and incidents op dower 465 Transfer of dower 455 5. Suits for dower 46g Duty of heirs to assign 46g Who may file petition 4g7 Where to be commenced 4g7 Where infants are petitioners or defendants 467 Guardian ad litem 467 8. Frame of petition 467 Parties to 457 Unknown defendants 468 Answer of defendants 468 Form of petition for, by xcidow 468 Affidavit to 469 Form of petition by husband 469 Form of petition by heirs 47O 7. Process of appearance 47I How summoned 47I Unknown parties 47I Non-resident defendants 47I Service by copy of petition 472 Setting aside decree, when defendant not personally notified 472 8. Interpleader 472 9. Hearing and decree 472 Farm of decree 473 10. Commissioners to assign dower '. 474 Appointment of 474 Form of oath of 474 Duty of commissioners 474 Dower may be assigned in a body 475 Homestead, etc 475 Report of 475 Subject to direction of court 475 11. Allowance in lieu op dower 476 12. Damages for refusal to assign dower 477 13. Mode of ascertaining value op dower, etc 478 Dr. Wigglesworth's table 479 Table showing present value of annuity at 5 per cent. 479 Portsmouth or Xorthampton tables 480 Rule for computing value of life estate, or annuity 481 14. Miscellaneous provisions op the statute 481 Dower assigned by county court in applications for leave to sell lands to pay debts 481 Waste by persons to whom dower is assigned 482 26 ANALYSIS OF CONTENTS. CHAPTER XXXII. BILLS FOR DIVORCE. Section 1. Natxjke op 483 2. Causes for divorce 485 3. Jurisdiction of 485 Where commenced 485 Residence of complainant 486 Effect of divorce 486 4. Natural xmpotency 486 Form of bill for 489 5. Former marriage 490 Form of Ml for 490 6. Adultery 491 Circumstantial evidence 492 Frame of bill for 493 Form of hill for, by Jiusband 493 Form of bill for, by wife, praying alimony, etc 494 7. WrLLFUL desertion 496 Form of bill for 497 8. Habitual drunkenness 498 Form of bill for, praying fbr alimony, custody of chil- dren 499 9. Attempting the life of the other 501 Form of bill for 501 10. Extreme and repeated cruelty 502 Form of bill for, by husband 503 Form of bill for, by wife, praying for injunction 504 11. Conviction of crime 506 Form of bill for 507 12. Defenses to 508 Condonation 508 Recrimination 510 13 Injunction in 510 When proper •. . . . 511 Custody of children pendente lite 511 14. Hearing and decree 5l2 Trial by jury 512 Forming an issue 512 Form of order directing an issue of fact 512 In case of default 513 Confessions by defendant 513 Collusion 514 Proof of foreign marriage 514 Changing wife's name 514 Form of decree for adultery, etc 514 ANALYSIS OF CONTENTS. 27 Form, of decree for adultery, and custody of children . . . 515 Form of decree, extreme and repeated cruelty 516 15. Aluiony axd expenses pendente lite 516 Leave to prosecute as poor person 51S Form of petition for alimony pendente lite 518 Amount, of allowance 519 Order of reference as to alimony 519 Form of report of master as to allowance of alimony, etc. 520 Form of order confirming master's report 521 Form of order for alimony, etc 521 Permanent alimony 521 Sale of land to satisfy 522 Form of decree for permanent alimony 523 CHAPTEK XXXIII. SEPARATE MAINTENANCE. Section 1. When granted 525 Grounds for 525 2. Proceedings to obtain 527 Where commenced 527 The bill 527 Inj unction .... 527 Form of bill for 527 3. Defenses to 529 4. Practice in, and decrees 529 Reference to master 529 Form of order of reference 580 Form of report of master 530 Amount of allowance 531 Modification of allowance 533 Form of decree for separate maintenance 533 CHAPTEK XXXIV. BILLS TO QUIET TITLE. Section 1. When proper, and nature of 537 2. Forms of bills 540 To quiet title and cancel deed 540 To set aside tax deed 541 To set aside contract 544 8. Form of decree ^ 546 Form of decree to quiet title, and to cancel deed 546 28 ANALYSIS OF CONTENTS. CHAPTER XXXV. BILLS TO SET ASIDE WILLS. Section 1. Nature op, and whkn pkofer 547 2. What necessary to constitute a valid will 548 3. Fraud in procuring execution of a will 549 4. Want op capacity to make a will 550 5. Form op bill 551 By heirs at laic, to set aside a will 551 6. Issue of facts to be tried by a jury 553 Fo7'm of order directing 553 7. Decree setting aside a will 553 Form of 553 CHAPTER XXXYI. NE EXEAT. Section 1. Nature op, and when proper 555 2. Bill for 558 Form of 558 3. How obtained 559 Bill for 559 Bonds to be given 559 Order directing writ to issue 560 Form of, hy judge 500 Form of, by master 561 4. Proceedings upon 561 The writ — defendant's bond 561 Surety may surrender principal 561 Proceedings in court . . ; 562 Quashing writ 562 CHAPTER XXXVII. ■ BILLS TO RESTRAIN WASTE. Section 1. Nature op, and when proper 563 2. Form of bill 566 Landlord v. tenant, etc 506 ANALYSIS OF CONTENTS. 29 CHAPTER XXXVIII. BILLS RELATING TO TRUSTS. Section 1. Nature of, etc 569 2. Form of bill 571 To remove trustee 571 To appoint new trustee, etc 573 CHAPTER XXXIX. PROCEEDINGS TO ENFORCE MECHANIC'S LIENS. Section 1. Nature of 575 3. Where a lien is given 576 Suits by administrators, etc 577 Estate to wliich lien attaclies 577 Extent of lien 577 3. The contract upon which it is founded 579 Within what time to be completed 579 Implied contracts 579 Owner failing to comply 580 Materials furnished contractor 580 4. Discharge of lien 580 5. Limitation op lien .581 As against owner 581 As against creditor, etc 581 6. Incumbrances and other liens 582 Prior incumbrances 583 Rule for adjusting conflicting claims 583 Conflicting liens 583 Where claims are not due 584 Parties may contest each other's claims 584 Fraudulent incumbrances 584 Delay in one case, not to eflFect trial of others 584 7. Sub-contractor's lien 585 Notice to be given to owner 586 Copy of contract to be served 586 Notice filed with circuit clerk 586 Extent of lien 586 Owner may retain money due to pay 587 Statement to be furnished owner 587 When lien may be enforced 587 Owner may file bill, etc 588 Proving claims, etc 588 Contractor may give bond 589 30 ANALYSIS OF CONTENTS. Where contractor fails to complete contract 589 Limitation of 590 8. Bills and Petitions 590 Parties to 591 Form of bill, on written contract 592 Form of petition, on verbal contract 594 Form of petition, on implied contract 596 9. Proceedings upon 598 Summons 598 Notice by publication 598 Cases to be placed on chancery docket 598 10. Amendments 599 11. Answers ; 599 Form of ansicer by owner 600 Form, of, setting up discharge of lien 608 Form of, setting tip another lien 602 12. Cross-bill 604 Form of, setting up lien 604 13. Decrees and sales 606 When part of premises can be sold 606 Sales, how made 606 Redemption allowed 606 Execution for balance 607 Form of decree, etc -. 607 Form of decree, reserving adjustment 608 Form of decree, adjusting liens, etc 608 14. Costs 611 CHAPTER XL. INJUNCTIONS. Revised Statutes of 1874, op Illinois, relattng to 612 Judges authorized to grant 612 Master may grant, when 612 Notice of application for 612 To stay judgments, where had 612 Shall operate as a release of errors 612 Judgments before J. P 613 As to part of judgment 613 Bond required 613 Approval of bond 613 Bond to be filed before writ issues 614 Suggestion of damages on dissolution 614 Contempt in violating 614 Motion to dissolve in vacation 614 Motion to dissolve for want of equity 615 Motion to be determined on testimony 615 ANALYSIS OF CONTENTS. 31 Affidavits may be read 615 Continuance of motion to dissolve 615 Depositions on hearing of motion 615 Depositions on final bearing 616 EflFect of appeal on injunction 616 Further bond to be given 616 Granted on Sunday 616 Form 0^ nuggestioii of damages 617 CIlArXER XLI. MISCELLANEOUS FORMS. Order where defendant appears, etc., and admits his con- tempt, that he put in his answer 618 Order committing defendant for disobeying order to put in answer, etc 618 Order in case of contempt, for not answei'ing, where de- fendant denies his contempt, directing interrogatories. . . 619 Order convicting defendant of contempt after examination on interrogatories 620 Order to refer second or third answer on old excep- tions, etc 621 Order for sherilF acting as sergeant-at-arms 621 Order for sequestration 622 Order of reference where defendant does not submit to answer exceptions 623 Order for further answer after report of master 623 Order for attachment on third answer being held insuf- ficient 623 Order for examination of defendant on interrogatoiies, on third answer being held insufficient 623 Order for leave to amend bill after a plea to part has been allowed 624 Order of reference to master, etc 624 Order of reference of plea of former suit pending 625 Order directing plea to stand for an answer 625 Order allowing complainant to dismiss his bill 625 Order to pay money into court 625 Final decree dismissing bill at hearing 626 Order for cause to stand over to add new parties 626 Order for cause to stand over to supply proof 626 Interrogatories for examination of party in contempt 627 Answer to interrogatories for examination of a party in contempt 627 Report of master upon exceptions to answer 628 Further answer after exceptions and amendment 628 32 ANALYSIS OF CONTENTS. Report of master as to sufficiency of defendant's examina- tion 629 Exceptions to master's report on exceptions to answer 629 Agreement to submit the cause on written arguments 630 Abstract of pleadings and evidence 630 Brief and points to be used on tlie hearing 631 RULES OF PRACTICE FOR THE COURTS OF EQUITY OF THE UNITED STATES. Section 1. Preliminary regulations 633 2. Process 635 3. Service of process 636 4. Appearance 637 5. Bills taken pro confesso 637 6. Frame of bill 638 7. Scandal and impertinence in bills 639 8. Amendments of bills 640 9. Demurrers and pleas 641 10. Answers 642 11. Parties to bills 644 12. • Nominal parties to bills 646 13. Bills of revivor and supplemental bills 646 14. Answers 647 15. Amendments of answers 647 16. Exceptions to answers 648 17. Replication and issue 649 18. Testimony — how taken 649 19. Testimony de bene esse 6.53 20. Form of last interrogatory 652 21. Cross-bill 653 22. Reference to, and proceedings i;kk<)I!f., masters 6.53 23. Exceptions to report op master 655 24. Decrees 656 25. Guardians and prochein amis 656 PUTERBAUGH'S OHAJSrOERY Pleading and Practice. CHAPTER I. GENEEAL PRINCIPLES OF EQUITY PLEADING. As has been said in regard to pleading at law, the important object to be attained in equity pleading is to bring the subject matter of contention in a suit to an issue — to a point where a matter is affirmed on one side and denied on the other — to render the facts in each party's case plain and intelligible, and to refer the points at issue to the court, with all possible sim- plicity, for its decision. It is the statement, in legal form, of the facts which go to make up the charge and defense of par- ties in litigation ; and its substantial rules are founded . in the soundest and closest logic. Precision and brevity, certainty and simplicity, are to be kept constantly in view in framing pleadings. All superfluous verbiage and useless repetitions should be carefully avoided. The mode of statement must be such as to make the pleadings intelligible to the parties and the court, without recurring to possible facts which do not appear, and with such a degree of certainty that nothing can, from that pleading, be presumed to the contrary, (a) (a) Welf. Eq. PI. 3 ; Mont. Digest, 10, and notes, Z. S. and D. ; Ck). Litt. 303. 3 34 GENERAL PRINCIPLES. General Principles of Pleading. The pleadings in a suit in equity are commenced on tlie part of the complainant by a Bill or Information. The defense consists either of a Demurrer, which is a defense by law upon an admission of the facts charged in the bill ; or a Plea, which is defined by Lord Redesdale to be " a special answer, showing or relying upon one or more things as a cause why the suit should be either dismissed, delayed or barred ;" (b) or an answer to the charges contained in the bill or information; or the defendant may demur to one part of the bill, plead to another, and answer to another, if the nature of his case requires it. To a demurrer the complainant may join as in proceedings at law ; and to a plea or answer, reply, which is termed a Replication. These various pleadings and their respective offices will be considered in subsequent chapters. (6) Mitf. Ch, PI. 177 ; see Coop. Eq. PI. 223 ; Beame's PI. Eq. 1. CHAPTER II. COMMENCEMENT OF A SUIT IN CHANCERY. Section 1. How Commenced. 2. Where Commenced. 3. Security for Costs. SECTION I. HOW COMMENCED. By Bill. — A suit in cliancery is commenced by filing a bill or petition with the clerk of the proper court. This bill is in the nature of a petition addressed to the court or chancellor, and contains a statement of the facts out of which the com- plainant's claim arises, and prays the relief to which he considers himself entitled, (a) The filing of the bill is the commencement of the suit, and any service had therein on process issued, or by publication of notice, made prior thereto, is a nullity, (b) By Information. — If the suit is instituted on behalf of the government, or people, or those who partake of the prerogative of the same, such as idiots and lunatics, or whose rights are under its particular protection, such as objects of public charity, etc., the matter of complaint is presented to the court by way of information, and not by way of bill or petition, (c) by the proper officers of the crown, government, or people, as by the attorney general or state's attorney. When the suit immediately con- cerns the rights of the crown, government or people, alone, the officers proceed purely by way of information, {d) When the (a) Story's Eq. PI. § 7 ; Barton's Suit in Eq. 39 ; 2 Gross' Stat. Eodgen TS. Outtery, 58 III. 431 (6) Eodgen vs. Guttery, 58 111. 431. (c) Story's Eq. PI. §7; Coop. Eq. PI. 101-107; Welf. Eq. PI. 5S; 1 Dan. Ch.. Pr. 1 ; Lord Red. 7. (d) Coop. Eq. PI. 101, 102 ; Welf. Eq. PI. 59 ; Story's Eq. PI. § 7. 36 COMMENCEMENT OF SUIT. Where Commenced. suit does not immediately coucern the rights of the government or people, it is brought on the relation of some person, whose interests are affected, whose name is inserted in the informa- tion, and is termed the relator, and he is answerable for costs. The rules of practice incidental to bills in chancery and information, differ so slightly from each other, that whatever is said in this work with respect to bOls, may be considered, in the main, as applicable to informations, {e) The space allotted will not admit of a special reference to informations. SECTION II. WHEKE COMMENCED. Illinois Practice. — The statute provides, that " Suits in chancery shall be commenced in the county where the defend- ants, or some one or more of them, resides ; or if the defendants are all non-residents, then in any county ; or if the suit may affect real estate, in the county where the same or some part thereof is situated. Bills for injunctions to stay proceedings at law, shall be brought in the county in which the proceed- ings at law are had." (/") Where the object of a suit is not to affect real estate, the jurisdiction of the court is confined to the county of the resi- dence of the defendants ; and service of process upon a resident of another county will not confer jurisdiction, {g) A court of chancery will entertain a bill for relief when the defendant resides within its jurisdiction, and the relief sought can be obtained by acting directly upon the person, whether the subject matter of the bill be within its control or not. Of this character are cases for a specific performance of a con- tract for the conveyance of, or relating to, land beyond the jurisdiction of the court, where the court will compel a con- veyance in accordance with the mode and form prescribed by the laws of the country in which the land is situated ; and (e) Story's Eq. PI. § 8 ; 1 Dan. Ch. Pr. 3. (/) Underwood's Stat., Const. 65 ; 3 Gross' Stat. {g) Aiken vs. Lloyd, 38 111. 331. COMMENCEMENT OF SUIT. 37 Security for Costs. should it be necessary, in order to carry out such a decree, the defendant may be prevented by a ne exeat from leaving its jurisdiction pendente lite. This is the rule of the common law, and the statute has not changed it. But a court of chan- cery will not entertain a bill where the relief sought renders it necessary that it should act upon the specific thing, unless the subject matter of the litigation is within its jurisdiction. Thus, where land is to be aifected by the decree, as in the cases of petition for partition, admeasurement of dower, fore- closure of mortgage, or the enforcement of a mechanic's lien under the statute, the court must be able to control it directly, or it has no jurisdiction of the case. This is also a rule of the common law, which the statute has not changed, {h) SECTION III. SECURITY FOR COSTS. When required. — If the complainant is a non-resident, or the suit is brought by an infant by his next friend, a bond for costs must be filed before commencing suit, {i) The statute requiring non-resident complainants to file a bond for costs before commencement of suit, applies in the case of a writ of error sued out in tlie supreme court ; (/} and a security for costs in the circuit court is not liable for costs made against his principal in the supreme court. (Jc) Form of lond for costs. — The bond for costs to be given before filing the bill in chancery, by a non-resident, should be substantially as follows : (A) Enos vs. Hunter, 4 Gilm. 211 ; Cooley vs. Scarlett, 38 111. 316 ; see Richards vs. Hyde, 21 111. 640. (i) Gross' Stat. 142 ; Randolph vs. Emerick, 13 111. 344 ; O'Connell vs. Rea, 51 111. 306 ; Whitehurst vs. Coleen, 53 111. 247. ij) Ripley vs. Morris, 2 Gilm. 381 ; Hickman vs. Haines, 5 Gilm. 20 ; Roberts vs. Fahs, 32 111. 474. {k) Clark vs. Quackenboss, 28 111. 112. 38 COMMENCEMENT OF SUIT. Bonds for Costs. No. 1. Bond for costs hy a non-resident. In the Court of the County of in the State of Illinois. A. B. I vs. > In Chancery. CD. ) I do hereby enter myself security for costs in this cause, and acknowledge myself bound to pay, or cause to be paid, all costs which may accrue in this suit, either to the opposite party, or to any of the officers of this court, in pursuance of the laws of this state. Dated this day of , 18—. E. F. See observations upon bonds for costs in Puterbaugh's Com- mon Law^ Pleading and Practice, pp. 39-43. In suits hy infants. — The statute of Illinois provides, that " Suits in chancery may be commenced and prosecuted by infants, either by guardian or next friend, and by conservators on behalf of the persons they represent." (Z) The person selected as the next friend is required to file with the clerk of the court, a bond for costs, acknowledging himself bound for all costs that may accrue and legally devolve upon such minor, (m) No. '2. Bond for costs hy next friend. In the Court of the County of , in the State of Illinois. A. B., a minor, who brings suit by"" E. F., his next friend, vs. CD. I do hereby acknowledge myself bound to pay, or cause to be paid, all the costs which may accrue and legally devolve upon the said A. B. in this suit. Dated this day of , 18—. E. F. In Chancery. {V) Gross' Stat. ; Underwood's Stat. 66. (m) Gross' Stat. 316; Puterbaugh's Com. L. PI. and Pr. 42. CHAPTER III. BILLS IN CHANCERY. Section 1. Division of Bills. 2. Constituent Parts of an original Bill. 3. The Address. 4. The Introduction. 5. The Premises, or Stating Part. 6. Confederating Part. 7. Charging Part. 8. Jurisdictional Clause. 9. Interrogating Clause. 10. Prayer for Relief. 11. Prayer for Process. 12. Frajie of a Bill. 13. Signing op Bills. 14. Swearing to Bills. 15. Parties to Bills. 16. Ancient Bills. SECTION I. DIVISION OF BILLS. Bills in chancery are divided into those which are original, and those which are not original. If they relate to matters which have not previously been brought before the court, they are termed original bills, such as form the greater part of the business of a court of chancery. Bills not original are those which relate to some matter already litigated in the court by the same parties, and which are either an addition to, or a continuance of, an original bill, or both, (a) There is another class of bills, which is of a mixed nature, and sometimes par- takes of the character of both of the others. Thus, for example, bills brought for the pui-pose of cross-litigation, or of contro- verting, or suspending, or reversing some decree or order of (a) Story's Eq. PI. § 16 ; 1 Barb. Ch. Pr. 34 ; Mitf. Eq. PI. 23 ; Coop. Eq. PI. 43 ; Barton's Suit in Eq. 41. 40 BILLS IN CHANCERY. Division of Bills — Constituent Parts of. the court, or of obtaining the benefit of a former decree, or of carrying it into execution, are not considered as strictly a con- tinuance of the former bill, but in the nature of original bills, (h) And if these bills require new facts to be stated, or new parties to be brought before the court, they are so far strictly of the nature of supplemental bills. (rton, 33 111. 398 ; West vs. Schnebly, 54 111. 523. 48 BILLS IN CHANCEKY. The Premises, or Stating Part — Exhibits — Multifariousness. Exhibits. — If a bill makes an instrument a part thereof, with- out setting forth the contents, or annexing a copy, it is bad on demurrer, {w) The exhibits are not a part of the bill, but are part of the proof, and cannot aid defective statements in the bill, {x) Copies of deeds, filed with the bill as exhibits, are made, in legal intendment, portions thereof, and should be objected to before the hearing, if at all. {y) And where the execution of a deed has been admitted, in the answer, and a copy has been filed, as an exhibit, it cannot be objected to for the first time at the trial, {z) The bill must state the whole subject — ajstd not too MANY subjects — Mattel's in litigation not divisible. The bill must be brought for the whole subject in dispute. The court will not permit a bill to be brought for a part of a matter only, 80 as to expose a defendant to be harassed by repeated litiga- tions concerning the same thing ; (a) nor for one of two claims upon the same defendant. (5) Multifariousness. — As the bill should not omit anything which is material to state, it is equally important that it should not run into the opposite defect, and attempt to embrace too many objects ; it being a rule in equity that two or more dis- tinct subjects cannot be included in the same suit. The offense against this rule is termed multifariousness, and will render a bill liable to demurrer, {c) As to what constitutes multifari- ousness, it is impossible to lay down a general rule ; every case must be governed by its own circumstances, and the court must (w) Martin vs. McBryde, 3 Ired. Ch. 531 ; King vs. Trice, 3 Ired. Ch. 668. {x) Caton vs. Willis, 5 Ired. Ch. 335. (y) Surget vs. Byers, 1 Hemp. 715. («) Oreen vs. Campbell, 2 Jones' N. C. Eq. R. 446. la) Mitf. Eq. PI. 133 ; 1 Barb. Ch. Pr. 40. (&) Purfoy vs. Purfoy, 1 Vern. 29 ; 1 Barb. Ch. Pr. 40. (c) 1 Dan. Ch. Pr. 437 ; 1 Barb. Ch. Pr. 40 ; Supervisors vs. State's Attorney, 31 111. 74 ; Oliver vs. Piatt, 3 How. U. S. R. 333 ; Many vs. Beekman Iron Co. 9 Paige, Ch. R. 188 ; Luckett vs. White, 10 Gill and J. 480 ; Abraham vs. Plutora, 3 Wend. 538 ; Thurman vs. Sheldon, 10 Yerger, 383 ; Buffalow vs. Buffalow, 2 Ired. Ch. 113 ; Stuart vs. Coalter, 4 Rand. 74. BILLS IN CHANCEKY. 49 The Premises, or Stating Part — Multifariousness. exercise a sound discretion on the subject, {d) Joint and sepa- rate demands cannot be joined in a bill without rendering it multifarious, (e) And as a bill bj the same complainant, against the same defendant, for diflerent matters, would be considered multifarious, so a fortiori, would a bill by several complainants, demanding distinct matters against the same defendant. {/) But a bill does not become multifarious because all the complainants are not interested to an equal extent, {g) When the object of the bill is single, to establish and obtain relief for one claim in which all the defendants may be inter- ested, it is not multifarious, although the defendants may have different and separate interests ; (A) thus, several underwriters on a policy of insurance may join in a bill in equity against the assured. (^) A bill brought against several defendants, seek- ing redress for injuries arising out of transactions with them separately, at different times, and relating to different subjects, would be bad for multifariousness, {j) Two good causes of action, arising out of the same transaction, in which all the defendants are interested in the same claim of right, may be joined in one suit without being multifarious. (Jc) But if a claim {d) Oainea vs. Chew, 3 How. U. S. R. 619 ; Warren vs. Warren, 56 Maine, 300 ; Oliver vs. Piatt, 3 How. U. S. 333 ; Id. 2 McLean, 267 ; Shields vs. Thomas, 18 How. U. S. 253 ; Fitch vs. Creigliton, 24 How. U. S. 159 ; McLean vs. Laf. Bank, 3 McLean, 415 ; Sedam vs. WUliams, 4 McLean, 55. (e) Harrison vs. Hogg, 2 Ves. Jr. 323 ; Boyd vs. Hoyt, 5 Paige, Ch. R. 65 ; Ingersoll vs. Kirby, Walk. Cli. 65 ; Ryan vs. Trustees of Shawneetoicn, 14 111. 20 ; Burnett vs. Lester, 53 111. 325 ; West vs. Randall, 2 Mason, 181 ; see AtiDill vs. Ferrett, 2 Blatchf. C. C. 40. (/) Jones vs. Oarcia Del Rio, 1 Turn. & Russ. 301 ; 1 Barb. Ch. Pr. 40 ; Supervisors etc. vs. State's Attorney, 31 111. 74 ; Sheriff vs. Oil Co. 7 Phil. (Pa.) R. 4 ; Darcy vs. Lake, 46 Miss. 109. (g) Euye vs. Moore, 1 Sim. & Stu. 61 ; 1 Barb. Ch. Pr. 41; Clarkson vs. DePeyster, 3 Paige, Ch. R. 320 ; Bank of Muskingum vs. Carpenter, Wright, 729 ; Shields vs. Thomas, 18 How. U. S. 253. (A) Bugiee vs. Sargeant, 23 Maine, 269. (i) Buckley vs. Starr, 2 Day, 552. {j ) Coe vs. Turner, 5 Conn. 86 ; Mix vs. Hotchkiss, 14 Conn. 32 ; Ingersoll VB. Kirby, Walk. Ch. 65; Burnett vs. Lester, 53 III. 325; Walker vs. Taylor, 42 Ala. 297 ; Burling vs. Hammer, 20 N. J. Eq. 220 ; Supervisors etc. vs. State's Attorney, 31 111. 74. (A) Varick vs. Smith, 5 Paige, Ch. R. 137. 4 50 BILLS IN CHANCERY. The Premises, or Stating Part — Multifariousness. against several defendants is joined with a claim in which one only of the defendants is interested, and which is wholly dis- connected with the claim against all the defendants, all or either of them may demur for multifariousness. {I) A bill in which demands against the defendant, in liis private capacity, are joined with demands against him as executor, etc., will be dis- missed on demurrer, (m) A bill is not multifarious if it be single as to the subject matter and object thereof, and the relief sought, if all the defendants are connected, though differently, with the whole subject of dispute ;(?i) and where a bill is framed with a two-fold object, either for a specific delivery of the property, or an enforcement of a supposed lien, it is not multifarious, {o) It seems that the objection of multifariousness is confined to cases where the case of each defendant is entirely distinct and separate in its subject matter from that of his co-defendants, for the case of one defendant may be so 'entire as to be incapa- ble of prosecution in several suits, and some other defendant may be a necessary party to onl}' a portion of the case ; in which latter case, multifariousness is not an available objec- tion, (p) If the owner of the equitable title to land, in a bill to compel a conveyance of the legal title to him, should join the owner of adjoining land as a defendant to settle a disputed question of boundar}', the bill would be multifarious, (q) Where separate contracts are made with the same individual, with respect to the same subject matter, they may be combined in one bill ; (r) and persons holding distinct interests under the {1} Swift vs. Eckford, 6 Paige, Ch. R. 22. (m) Davone vs. Fanning, 4 Johns. Ch. R. 199 ; Gill vs. Clagett, 2 Gill & J. 14; Bryan vs. Blythe, 4 Blackf. 249. (71) Watson vs. Cox, 1 Ired. Ch. R. 389 ; Vann vs. Harget, 2 Dev. & Bat Ch. 31 ; see Payne vs. Hook, 7 Wall. 425. (o) Murphy vs. Clark, 1 S. & M. 221 ; Baines vs. McGee, Id. 208 ; 9 Yerger, 287 ; Whitney vs. Whitney, 5 Dana, 327. {p) K&nnedy vs. Kennedy, 2 Ala. 571. (g) Hickman vs. Cooke, 3 Humph. 640. (r) Lynch vs. Johnson, 2 Litt. 98 ; Hart vs. McKeen, Walk. Ch. 417. BILLS IN OHANCEKY. 51 The Premises, or Stating Part — Scandal and Impertinence. same title may join in a suit for investigating their equity ; (.§) but several complainants claiming distinct rights, having no community of interests, cannot join in the same action ; {t) nor can several injuries by separate persons be joined in chancery any more than at law. {u) Several property owners may join in the same bill to restrain the collection of an illegal tax assessed against them severally, asking relief against the same injury on the same ground, {v) Scandal and Impertinence. — In framing a bill, the solicitor should see that it does not contain statements or charges which are scandalous or impertinent ; for if it does, it may be excepted to by the defendant, and the court will order such parts to be expunged, with costs against the party offend- ing, {w) Scandal consists in the allegation of anything which is unbecoming the dignity of the court to hear, or is contrary to good manners, or which charges some person with a crime not necessary to be shown in the cause, {x) To which may be added, that any unnecessary allegation bearing cruelly upon the moral character of an individual, is also scandalous, (y) When a bill is not pertinent, or unnecessarily reflects upon the opposite party, such portions of it will be stricken out, at the costs of the solicitor so offending. Neither suitors nor solicitors should be allowed to manifest their personal feel- ings upon the records of the court, {z) («) Tilford vs. Henderson, 1 A. K. Marsh. 483 ; Scrimeyer vs. Buchannon, 3 A. K. Marsh. 219 ; Bank of Muskingum vs. Carpenter, Wright, 729. (<) Barry vs. Rogers, 2 Bibb, 314 ; Armstrong vs. Athens Co. 10 Ohio, 235 ; Ohio vs. Ellis, 10 Oliio, 456. {u) Burnett vs. Lester, 53 111. 325 ; CJ.amorgan vs. Ouisse, 1 Mo. 131. (») Mt. Carbon Coal etc. Co. vs. Blanchard, 54 111. 240 ; Haricard vs. The St. Clair and Monroe Levee and Drainage Co. 51 111. 130; see Cutting vs. Gilbert, 5 Blatchf. C. C. R. 259. (w) 1 Dan. Ch. Pr. 451-2 ; 1 Barb. Ch. Pr. 41 ; McConnell vs. Holobush, 11 111. 61. {x) 1 Barb. Ch. Pr. 41 ; Prac. Reg. 383 iy) Coffin vs. Cooper, 6 Ves. 514. (2) McConnell vs. Holobush, 11 111. 61 ; 1 Dan. Ch. Pr. 451. 52 BILLS IN CHANCERY. Constituent Parts — Confederating Part. hnpertinence is the same kind of fault in pleadings in equity which in those at common law is denominated sur- plusage. This at law, taken in its largest sense, includes the introduction of unnecessary matter of whatever description, and includes the admission of matter wholly foreign, as well as of matter, which, though not wholly foreign, does not require to be stated, or which, if stated, should be stated with con- ciseness, {a) It is not impertinence, in a bill amended after answer, to adopt the language of the answer, and set forth its averment by way of pretense, with a charge to meet them, (b) In a bill to remove a trustee, it is not scandalous or impertinent to challenge every act of the trustee as mis- conduct, nor to impute to him corrupt or improper motives in the execution of his trust ; nor to allege that his conduct is the vindictive consequence of some act on the part of the cestui que trust, or of some change in his situation. But it is impertinent, and may be scandalous, to state any circum- stances as evidence of general malice or personal hostility ; because the fact of malice or hostility, if established, affords no necessary or legal inference that the conduct of the trus- tee results from such motives, and because such a course tends to render a bill in equity an instrument of inquisition into the private life of every trustee, (c) SECTION VI. IV. CONFEDERATING PART. The confederating part contains a general allegation or general charge of a confederacy between the defendants and other persons to injure or defraud the complainant. The usual form of the charge is that the defendants, combining and confederating together, and with divers other persons, as yet to the complainant unknown, but whose names, when (a) Steph. on PI. 432 ; 1 Barb. Ch. Pr. 41. Langdon vs. Pickering, 19 Maine, 214. {h) Seeley vs. Boehm, 2 Mad. 176. (c) Barb. Ch. Pr. 41 ; Earl of Portumouth vs. Fellows, 5 Mad. 450. BILLS IN CHANCERY. 53 Constituent Parts — Charging Parts. discovered, he prays may be inserted in tlie bill, and they be made parties defendants thereto, with proper and apt words to charge them with the premises, in order to injure and oppress the plaintiff in the premises, do absolutely refuse, etc., or pretend, etc. (d) Though the charge of confederation is usually made in the bill, it is treated as entirely nugatory, and need not be denied or responded to in the answer; (e) and may be omitted in the bill, or inserted, at the option of the complainant. (J") The practice of inserting the charge arose from the idea that parties could not be added to the bill, by amendment, without it, but it is entirely unnecessary for that purpose. The mere allegation of combination or confederacy of the defendants, simply as such, could never alone have been a just foundation for the jurisdiction of a court of equity in the absence of all other proper matter to sustain it. Con- federacy or combination, as a gravamen, seems clearly cogni- zable at law. (g) SECTION VII. V. CHAEGtNG PAKT. Although the charging part of the bill is generally inserted, yet it is not essential that it should be. That part of the bill may be omitted, (h) The equitable ground of relief, on the part of the complainant, must appear in the stating part of the bill ; for if the equity only appears in the charging part, the bill will be deraurable. {i) If the complainant can foresee the matter which the defendant will set up to protect {d) Story's Eq. PI. § 29 ; Barton's Suit in Eq. 33 ; Coop. Eq. PI. 9 ; Eq. Draft. 5-6. (e) Story's Eq. PI. § 29 ; Eq. Draft. 5, note d ; Barton's Suit in Eq. 33 ; Coop. Eq. PI. 10 ; 1 Hoff. Ch. Pr. 41 ; 1 Dan. Ch. Pr. 375. (/) Eq. Pr. U. S. S. C. 1870, Rule 21 ; 8 Ves. 404 ; 3 Mad. 11. (fir) Barton's Suit in Eq. 33, note ; Story's Eq. PI. § 27-29 ; Mitf. Eq. PI. 40. (h) Welf. Eq. PI. 102; Parbridge vs. Haycraft, 11 Ves. 575; Story's Eq. PI. § 33 ; Eq. Pr. U. S. S. C. Rule 21. (t) Flint vs. Field, 2 Anst. 543 ; Farren's Bill in Ch. 27 ; Gregory vs. Molesworth, 3 Atk. 626. 54 BILLS IN CHANCERY. Constituent Parts — Jurisdictional Clause. himself against the allegations of the bill, such matter may be introduced by this mode of charging, which affords an opportunity of rebutting its eU'ects, by charging facts of an opposite tendency. It is also used sometimes for the purpose of discovering the nature of the defendant's case ; or to put in issue some matter which the complainant does not desire to admit ; {j) for which purpose the charge of the pretense of the defendant is held to be sufficient, {k) Thus, for example, if a bill is filed on any equitable ground by an heir, who apprehends that his ancestor has made a will, he may state his title as heir, and alleging the will by way of pretense of the defendant's claiming under it, may make it a part of the case, without admitting it. (J) SECTION VIII. VI. JUKISDICTIONAL CLAUSE. This part of the bill is intended to give jurisdiction of the suit to the court by a general averment, that the acts com- plained of are contrary to equity, and tend to the injury of the complainant, and that he has no remedy, or not a com- plete remedy, without the assistance of a court of equity, (m) This clause in the bill, however, is wholly unnecessary, and the omission of it does not render the bill defective, (w) and it may be used or not, at the discretion of the complainant. {6) The averment does not confer jurisdiction, but the facts stated in the bill must, of themselves, make a case within the juris- diction of a court of chancery, {p) At best, therefore, the clause is a mere superfluity. (j) Barton's Suit in Eq. 34 ; Gregory vs. Molesworth, 3 Atk. 626. (k) Mitf. Eq. PI. by Jeremy, 43 ; Parbridge vs. Haycraft, 11 Ves. 574. (/) Story's Eq. PI. g 31 ; Van Heytliuysen's Eq. Draft, p. 5 ; Barton's Suit in Eq. 34 ; Welf. Eq. PI. 103. (m) Barton's Suit in Eq. 27, 28 ; Story's Eq. PI. ^10. 34 ; Coop. Eq. PI. 10, 11. (n) Story's Eq. PI. §34; Lord Red. 44; 1 Dan. Ch. Pr. 573, note; Bate man vs. Willoe. 1 Sch. k Lef. 204 ; Welf. Eq. PI. 104. (o) Eq. Pr. U. S. S. C. 1870, Rule 21 ; Eq. Draft. 5, note g. (p) Lord Red. 44 ; May vs. Parker, 13 Pick. 34 ; Mitf. Eq. PI. 35 ; 1 Barb. Ch. Pr. 36 ; Chase vs. Palmer, 12 Sliep. 341. BILLS IN CHANCERY. 55 Constituent Parts — Introductory Part. SECTION IX. VII. INTEKROGATING PART. The interrogating part of the bill contains a prayer that the defendants may answer all and singular the matters contained in the stating and charging parts of the bill, not only according to their respective knowledge and remembrance of the facts stated, but also, according to the best of their several and respective hearsay, information and belief. The bill usually requires an answer under oath ; but under the statute of Illinois, as well as several other states, the complainant may waive the necessity of the answer being made on the oath of the defend- ant, in all cases except where the biU is filed for discovery only ; and, in such cases, the answer may be made without oath, and shall have no other or greater force, as evidence, than the bill. The general interrogatory in a bill is suflScient to entitle a party to a full answer to all the matters stated, {q) But this fact has not, in practice, precluded the use of special interroga- tories ; which are sometimes regarded as of great importance in enlarging a general charge, and extending it to all the minute and collateral cii'cumstances attending the fact. The interrogatories are always to be construed by the charg- ing part of the bill, and must be founded upon the statements or charges in the bill, and cannot be more extensive than these, (r) If there is nothing in the prior part of the bill to warrant an interrogatory, the defendant is not bound to answer it ; (s) but if he does answer it, the matter is put in issue, (t) The interrogating part of the bill is not regarded as abso- {q) Jaques vs. Methodist Gkurch, IJohns. Ch. R. 75 ; Story's Eq. PI. § 36, 38. (r) Mechanics' Bank va. Levy, 3 Paige, Ch. R. 606 ; Cowles vs. Buchanan, 3 Ired. Ch. R. 374 ; Muckleston vs. Brown, 6 Ves. 63 ; Parker vs. Carter, 4 Munf. 273 ; Story's Eq. PI. g 35. (») Eberly vs. Groff, 9 Harris, 256 ; Wigram on Disc. 74 ; 1 Barb. Ch. Pr. 36 ; Eisor vs. Stanscifer, Wright, 323 ; Hagthorp vs. Hook, 1 Gill and J. 370 ; Story's Eq. PI. g 36. {t) IVes. Sr. 534, 538; Mitf. Eq. PI. 38; Story's Eq. PI. § 36, 37 ; 1 Dan. Ch. Pr. 432 ; Eq. Draft. 5, note g. 56 BILLS m CHANCERY. Constituent Parts — Prayer for Relief. hitely necessary, though it is generally used, (u) especially where the answer of the defendant is required to be under oath. Whei'e the complainant waives the necessity of the answer being made on the oath of the defendant, no good reason for interrogatories exists, and they may well be dispensed with. The sworn answer of a defendant to a bill, when the oath is not waived, can only be overcome by the evidence of two wit- nesses, or its equivalent, (v) But the evidence of two witnesses is sufficient to overcome the statement in a sworn answer, (w) If an answer is not sworn to it is not evidence in the cause for any purpose ; it performs the office of a plea only, (a?) When the oath to an answer is waived by the bill, an answer on oath is no more than a pleading, and does not require the testimony of two witnesses to overcome it ; and it is an improper practice for a solicitor to put in an answer for his client under oath, where the oath is waived, (y) And the effect of requiring an answer under oath cannot be avoided, after answer has been filed, by filing an amended bill waiving the oath. The answer under oath to the original bill, would still be evidence on the hearing of the case, so far as it is responsive to the bill, {s) SECTION X. Vni. PRAYER FOR RELIEF. The bill must also contain a prayer for relief. This must depend upon the facts of each case, and the nature of the relief sought, and should be framed with great care. Unless (u) Story's Eq. PI. § 38. (v) Barton vs. Moss, 32 111. 50 ; Duncan vs. Wilson, Id. 517 ; Wightman vs. Hart, 37 111. 123; Maple vs. Scott, '^\ 111. 50; Wildey vs. Webster, 42111. 108 ; Phelps vs. White, 18 111. 41 ; Russell vs. Russell, 54 111. 250 ; Panton ve. Teft, 22 111. 366. (m) Martin vs. Eversal, 36 III. 222. (x) Willis va. Henderson, 4 Scam. 13 ; Chambers vs. Rowe, 36 111. 171; Hopkins vs. Granger, 52 111. 504. (y) Willenborg vs. Murphy, 36 111. 344 ; Wallwork vs. Derby, 40 111. 527. (z) Wylder vs. Crane, 53 111. 490. BILLS IN CHANCERY. 57 Constituent Parts — Prayer for Relief. there is a prayer, there can be no relief for the complainant. (a) And if, for any reason founded on the substance of the case, as stated in the bill, the complainant is not entitled to the relief he prays, either in whole or in part, the defendant may demur, (b) The prayer for relief is divided into two kinds: Prayer for specihc relief, and prayer for general relief. In most cases, a prayer for general relief is sufficient to enable the complainant to obtain such a decree as his case entitles him to ; but it is the usual and better practice for the complain- ant to pray, first for such specific relief as he thinks he ought to have, and then for general relief, (c) But under the prayer for general relief, such relief only can be granted as the case stated in the bill, and sustained by the proof, will justify, {d) When there is no obstruction to the particular relief prayed for, the complainant cannot abandon it, and ask a difierent decree under the prayer for difierent relief, (e) It is never safe to omit the prayer for general relief, for if the complainant should mistake the relief to which he is enti- tled, in his special prayer, the court may, under the prayer for general relief, grant him such relief as he ought to have, con- sistent with the case made in the bill. (/") But if there is no (a) Driver vs. Fortner, 5 Porter, 9. (6) xMitf. Eq. PI. 133 ; 1 Barb. Ch. Pr. 40 ; Story's Eq. PI. § 40; see Gould vs. El/on, 14 111. 53 ; Kuckenheirer vs. Beckert, 41 111. 172. (c) Barton's Suit in Eq. 46 ; Story's Eq. PI. ^ 40-43 ; Hunter's Suit in Eq. 16, 18 ; Thomason vs. Smithson, 7 Porter, 144 ; McNab vs. HecUd, 41 111. 326 ; Raper vs. Saunders, 21 Gratt. Va. R. 60. {d) Hobson vs. McArthur, 16 Pet. 182; Gibson vs. McGormick, 10 Gill & J. 65 ; Lingan vs. Henderson, 1 Bland, 236 ; James vs. Bird, 8 Leigh, 510 ; Danforth vs. 5nnY/i, 23 Vt. 247 ; Brown vs. McDonald,! Hill, Ch. R. 297; Jones vs. Bush,^ Harring. 1 ; Kelley vs. Payne, 18 Ala. 371 ; Stone va. Ander- son, 6 Foster, N. H. 506. (e) Allen vs. Coffman, 1 Bibb, 469; HUleary vs. Hurdle, Q Gill, 105; Kernegay vs. Carroway, 2 Dev. Ch. 403 ; Pleasants vs. Glasscock, 1 S. & M. Ch. 17. (/) Wilkinson vs. Bedl, 4 Mad. 408 ; Beaumont vs. Boulbree, 5 Ves. 495 ; Hiern vs. Mill, 13 Ves. 119, 120; English vs. Foxall, 2 Pet. 595; Hobson vs. McArthur, 16 Pet. 195 ; Danforth vs. Smith, 23 Vt. 247 ; HUleary vs. Hurdle, 6 Gill, 105 ; Scudder vs. Young, 25 Maine, 153 ; Sheppard vs. Starke, 3 Munf. 29. 58 BILLS IN CHANCERY. Constituent Parts — Prayer of Process. prayer for general relief, then if the complainant should mistake the relief to which he is entitled, no other relief can be granted, and his suit must fail, at least, unless an amendment of the prayer is allowed, {g) Under the general prayer for relief, the court will only grant such relief as the statements of the bill will justify, and will not ordinarily allow a bill framed for one pur- pose to answer for another ; especially if the defendant may be surprised or prejudiced by it. If, therefore, the complain- ant has doubts as to the relief he ought to have, he should frame his bill with a double aspect, so that if the court should decide against him in one view of the case, it may yet afford him assistance in another. (A) SECTION XI. IX. PRAYER OF PROCESS. This part of the bill prays process to compel the defendant to appear and answer the bill, and abide the determination of the court on the subject. Care must be taken to insert the names of all persons who are intended to be made parties ; for it is a general rule that none are parties, although named in the bill, against whom process is not prayed, {i) The ordinary process prayed is a writ of subpcena, or summons, as provided in Illinois, which requires the defendant to appear and answer the bill on a certain day, named in the writ. If the complainant wishes an injunction against the defendant, he must not only pray for it in the prayer for relief, but also, in tlie prayer for (g) Story's Eq. PI. §41 ; Coop. Eq. PI. 14; Cook vs. Martyn, 2 Atk. 3; Polk vs. Clinton, 13 Ves. 62-65 ; Thomason vs. Smithson, 1 Porter, 144. (h) Story's Eq. PI. § 43 ; Dan. Cli. Pr. 434. 441 ; 1 Hoff. Ch. Pr. 49 ; Mitf. Eq. PI. 38 ; Coop. Eq. PI. 14 ; Jones vs. Parishes etc. 3 Swanst. 208 ; Legal vs. Miller, 2 Ves. 399 ; Walker vs. Devereaiix, 4 Paige, Ch. 239 ; Scudder vs. Young, 25 Maine, 153 ; Colton vs. Ross, 2 Paige, Ch. K. 396, and the cases there cited as to proper forms of prayer for relief. (i) Barb. Ch. Pr. 37 ; Story's Eq. PL § 44 ; Coop. Eq. PI. 16 ; Fawkes va. Pratt, 1 P. Wms. 593 ; Windsor vs. Windsor, 2 Dick. 707 ; Elmendorf vs Delaney, Hopk. 555. BILLS IN CHANCERY. 59 Frame of Bill — Signing of BillB. process. {J) A prayer for general relief will not be sufficient to authorize it. {k) If only a temporary injunction is wanted, the i)ill must also contain a formal prayer for it. (Z) SECTION XII. FRAME or A BILL. We have now -given the nine formal parts of an ongiual bill praying relief, as it is generally framed ; upon which Lord Kedesdale has made the following remarks : " Some of them are not essential ; and, particularly, it is in the discretion of the person, who prepares the bill, to allege any pretense of the defendant in opposition to the plaintiff's claims, or to interro- gate the defendant specially. The indiscriminate use of these parts of a bill, in all cases, has given rise to a common reproach to practisers in this line, that every bill contains the same story, three times told. In the hurry of business, it may be difficult to avoid giving ground for the reproach. But in a bill, pre- pared with attention, the parts will be found to be perfectly distinct, and to have their separate and necessary operation." (m) SECTION XIII. SIGNING or BILLS. Except in cases where an injunction is asked for, or a dis- covery, or an answer on oath is required from the defendant, bills are usually signed by the solicitor alone, and not by the party, {n) If the complainant sues in person, however, it must be signed by him. And in that case, it seems that it need not be signed by counsel. (., the defendant, on oath states, that he has heard read the foregoing demurrer to the bill of complaint of A. B. in this suit ; and that the same is not intei-posed for the pui-pose of delaying said suit, or any proceedings therein. C. D. Subscribed, etc. JV^o. 20. Demurrer for want of equity. {Commence as in No. 16, ante, page 108, at the *; and state cause of demurrer as follows :) That the complainant has not in and by his said bill, made or stated such a case as entitles him, in a court of equity, to any discovery or relief from or against this defendant touch- ing the matters contained in the said bill, or any of such matters, {a) Wherefore, etc. {Conclude as in No. 16.) {If there are more than one cause of demurrer, insert at the {a) in the ahove precedent, the following :) "And for a fur- ther cause of demurrer this defendant shows, that, etc. {Here set forth the further cause of demurrer, a/nd so on, and con- clude :) Wherefore, etc., {as vn No. 16.) THE DEFENSE TO A SUIT. Ill Demurrer to Bill — For Multifariousness — Want of Parties, etc. No. 21. Demurrer for Multifariousness. {Commence as in No. 16, ante, page 108, at the *, and state cause of demurrer as follows :) That it appears by the said bill that the same is exhibited against this defendant, and the several other persons therein named as defendants thereto for distinct matters and causes, in several whereof, as appears by the said bill, this defendant is not in any manner interested or concerned, and that the bill is altogether multifarious. Wherefore, etc. {Conclude as m No. 16.) No. ^2. Demurrer for want of parties. {Commence as in No. 16, ante, page 108, to the *, and. state cause of demurrer as follows :) That it appears by the complainant's bill, that G. H., therein named, is a necessary party to the said bill, inasmuch *as it is therein stated, that E. F., the testator in the said bill named, did, in his lifetime, by certain conveyances made to the said G. H., in consideration of dollars, convey to him by way of mortgage, certain estates, in the said bill particularly mentioned and described, for the purpose of paying the said testator's debts and legacies ; but the com2)lainant has not made the said G. H. a party to said bill. Wherefore, etc. {Conclude as in No. 16.) No. 23. Demurrer for wa/nt of privity. {Commence as in No. 16, ante, page 108, to the *, and state caiLse of demurrer as follows :) That it appears by the complainant's said bill, that there is no privity between the complainant and this defendant, to enable the complainant to call upon this defendant for the pay- ment of any debt due to the estate of the said testator from this defendant. Wherefore, etc. {Conclude as in No. 16.) No. 2Jf.. Demurrer to a hill of discovery, where the defendant could he examined as a witiuss. {Commence as in No. 16, ante, page 108, to the *, and state cause of demurrer as follows :) That the complainant has not, in and by his said bill, stated, charged or shown, that this defendant has, or pretends to have^ 112 THE DEFENSE TO A SUIT. Demurrer to Bill — Demurrer to part of Bill, etc. anv right, title or interest in the matters and things complained of by the said bill, or an}^ of thera ; or any right to call upon this defendant, in a court of equity, for a discovery of said matters and things, or any of thera. And that for anything that appears to the contrary by said bill, this defendant may be examined as a witness in this suit. Wherefore, etc. {Conclude as in No. 16.) No. '25. Demurrer to a hill, where the complainmit has no ititerest in t/i.e siibject. {Commence as m No. 16, ante, page 108, to the *, and state cause of demurrer as follows :) That the complainant has not, as appears by his said bill, made out any title to the relief thereby prayed. Wherefore, etc. {Conclude as in No. 16.) No. 26. Demurrer to a ])art of the hill. {Proceed as in No. 16, ante, page 108, to {a) and then insert the following :) As to so much of said bill as seeks that this defendant may answer and set forth whether, etc., {state the matter demurred to,) or seeks any discovery from this defend- ant, whether, etc., {setting out the interrogatory,) demurs thereto, and for cause of demurrer shows, that, etc., {Here set forth the cause of de?nurrer,) as to the matters hereinbe- fore specified, or any of such matters. Wherefore, and for divers other good causes of demurrer appearing in the said bill of complaint, as to so much thereof as before is set forth, this defendant demurs and prays the judgment of this honorable court whether he shall be com- pelled to make any further answer to such parts of the said liill as is so demurred to as aforesaid. By Sol. for Defendant. No. 27. Demurrer to part of a hill, with an answer to the residue. {Proceed as in last form, No. 26, to the end, and continue as follows :) And this defendant not waiving his said demur- rer, but relying thereon, and saving and reserving unto him- self all benefit and advantage of exception to the many errors, uncertainties and other imperfections in the residue of the said bill contained, this defendant for answer says, etc. {Contiriue as in form of mi answer, No. 67, post.) I THE DEFENSE TO A SUIT. 113 Plea to a Bill — Nature of. SECTION IV. n. PLEA TO A BILL. Nature of. — "When an objection to a bill in chancery is not apparent on the bill itself, or, as the technical phrase is, dehors the bill, if the defendant means to take advantage of it, he must show the matter which creates the objection, to the court by a plea, or by answer, (a) In some cases, the objection can be taken only by a plea ; in others, again, it may be taken either by a plea or by answer ; and in others again, it can be taken only by answer. (5) In other words, the defendant may demur to one part of the bill, plead to another, answer to another, and disclaim as to another, if the nature of his case requires it, in the same manner as he may demur, or plead, or answer to the whole bill, if his defense equally applies to all parts thereof, (c) Pleas are usually divided into two sorts; one commonly called pure pleas, which contain matter wholly dehors tlie bill, such as a release, or a settled account ; and another, called, in contradistinction to the other, pleas not pure, or anomalous pleas, and most generally negative pleas, which consist mainly of denials of the substantial matters set forth in the bill, {d') The true oflBce of a plea is to save to the parties the expense of an examination of the witnesses at large ; and the defense proper for a plea is such as reduces the cause, or some part of it, to a single point, and from thence creates a bar or other obstruction to the suit, or to the point, to which the plea (o) Story's Eq. PI. § 647 ; Mitf. Eq. PI. 219. (&) Story's Eq. PI. g 439, 647 ; Aggas vp. PickerUl, 3 Atk. 236 ; Harris va. Pollard, 3 P. Wms. R. 348; Coop. Eq. PI. 302; see Rowe vs. Tweed, 15 Ves. 377. (c) Dowes vs. McMichael, 6 Paige, Ch. R. 383 ; Lord Red. 214 ; Story's Eq. PI. § 647 ; Mitf. Eq. PI. 319 ; Beard vs. Bowler, 2 Bond, 13. ((f) Story's Eq. PI. § 667, 651 ; Sanders vs. King, 6 Mad. R. 61 ; Penning- ton vs. Beachy, 2 Sim. & Stu. R. 274, 276 ; 2 Dan. Ch. Pr. 99. 100, 110, 111. 8 lU THE DEFENSE TO A SUIT. Plea to a Bill — Nature of — When Proper. applies, {e) Therefore a plea, to be good, whether it be affirmative or negative, must be either an allegation or a denial of some leading fact, or of matters which, taken col- lectively, make out some general fact, which is a complete defense, {f) But, although a defense, offered by way of plea, should consist of a great variety of circumstances, yet, if they all tend to a single point, the plea may be good, {g) Where a defense consists of numerous facts and circumstances, making it necessary to go into the examination of witnesses at. large, it should be set up by answer, and not by plea. (A) And where the allegations of a plea, being taken as true, do not make out a full defense, or where the necessary facts are to be gathered by inference alone, the plea will not be sus- tained, {i) And where all the facts set up by a plea appear upon the face of the bill, the plea is bad. {j) When proper. — The limit of this work will not justify much of its space to be taken up in considering this branch of the subject. The reader's attention is directed to other works, where the subject is treated of fully and at large, {k) Pleas have been arranged under four classes : I, To the juris- diction; II, to the person of the plaintiff; III, to the bill, or the frame thereof; and lY, in bar. (e) Story's Eq. PI. ^ 652 ; Mitf. Eq. PI. 295 ; Coop. Eq. PI. 223 ; Chapman vs. Turner, 1 Atk. R. 54 ; Ritchie vs. Aylwin, 15 Ves. R. 82 ; Rowe vs. Tweed, 15 Ves. 378 ; Wood vs. Rowe, 2 Bligh, R. 595, 614 ; Reartt vs. Corn- ing, 3 Paige, Ch. R. 566. (/) Robertson vs. Lubbock, 4 Sim. R. 161; Baiters vs. Tobias, 7 Johns. Ch. R. 214; 2 Dan. Ch. Pr. 102-104. ig) Story's Eq. PI. § 652 ; 2 Dan. Ch. Pr. 103 ; Mitf. Eq. PI. 296 ; Ritchie VB. Aylwin, 15 Ves. 82 ; Dawson vs. Pilling, 16 Sim. R. 203. {h) Loud vs. Sergeant, 1 Edw. Ch. R. 164. (i) Meeker vs. Marsh, Saxon R. 198 ; see Piatt vs. Oliver, 1 McLean, 395 ; Lewis vs. Baird, 3 McLean, 56. ij) Phelps vs. Garrow, 3 Edw. Ch. R. 139 ; Varick vs. Dodge, 9 Paige, Ch. R. 149 ; Fowler vs. Lewis, 3 A. K. Marsh. R. 443 ; Cozine vs. Graham, 2 Paige, Ch. R. 177. {k) See Story's Eq. PI. § 647-837 ; Coop. Eq. PI. ; Dan. Ch. Pr. ; Mitf. Eq. PI. ; Welf. Eq. PI. THE DEFENSE TO A SUIT. 115 Plea to a Bill — To the Jurisdiction, etc. — To the Person. I. To the jurisdiction of the court. — A plea to the juris- diction does not dispute the right of the complainant in the suit, but simply asserts either that his claim is not a fit subject of cognizance in a court of equity, or that some other tribunal is invested with the proper jurisdiction. It is diificult to dis- guise any case, which this plea would reach, so as to avoid a demurrer ; but there may be instances to the contrary, and even averments in the bill, which would leave the defend- dant no other means of protecting himself. If, for example, a bill in the circuit court of the United States should allege that the complainants and defendants are citizens of different states, the defendant can only contest this fact by a plea to the jurisdiction. Again, the statute of Illinois requires all suits in chancery to be brought in the county where the defendants, or some one or more of them, reside. If the suit is brought in a different county, and that fact does not appear on the face of the bill, advantage must be taken of the objection by a plea. The court of chancery being one of general equity jurisdiction, a mere allegation of the want of jurisdiction is not sufficient ; but the plea must show by what means the jurisdiction has been lost, and by what court it is possessed. {J) An exception to the jurisdiction, by denial of the fact of citizenship, must be taken by plea in abatement; it cannot be insisted on by way of answer, (w) A defendant will not be allowed, by plea, to deny the citizenship of his co-defendant, so as to oust the jurisdiction, it being a personal privilege, {n) II. To the person. — A plea to the person of the complain- ant merely disputes the ability of the complainant to sue, with- out putting in issue the subject matter of the controversy. It may assert either that the complainant is an alien enemy, or (i) Barton's Suit in Eq. 103 ; Burger vs. Potter, 32 111. 66 ; Lester vs. Stetens, 29 111. 155 ; Vnrick vs. Dodge, 9 Paige, Ch. R. 149 ; see Story's Eq. PI. § 710-721. (m) Wood vs. Mann, 1 Sumner, 578; Livingston vs. Story, 11 Pet. 351 ; Dodge vs. Perkins, 4 Mason, 435 ; Burnham vs. Rangeley, 1 W. & M. C. 0. R.7. (ra) Harrison vs. Urann, 1 Story, 64. 116 THE DEFENSE TO A SUIT. Plea to a Bill — Plea to the Bill — Plea to Bar — Frame of Plea. that lie is an alien, and the suit respects lauds ; or that the complainant is an infant, feme covert^ lunatic, or bankrupt ; or that he is not the person whom he pretends to be in his bill ; or does not sustain the character which he assumes, {p) The bankruptcy of the complainant, and non-joinder of his assignee, must be pleaded ; it cannot be insisted on by way of answer. (^) III. To the hill. — Pleas to the bill, or the frame of the bill, bear a close resemblance to pleas in abatement of the action at common law. Without disputing the right of the complain- ant to the relief which he seeks, they allege that the suit, as it appears on the record, is insufficient to answer the purposes of complete justice, or ought not for some reason to proceed. The most usual of these pleas are either the pendency of another suit for the same matter in another court of equity ; or the want of proper parties to the bill, {g) IV. Pleas in har. — Pleas in bar are usually divided into three heads : 1, pleas founded upon some defense created by statute, such as limitations, or the statute of frauds; 2, pleas founded on matter of record, such as a former decree ; and 3, pleas of matters in pais, to which belong the plea of a stated account, of an award, of a release, of a purchase for a valuable consideration, and of title in defendant, obtained either by adverse possession for a length of time, or by deed or will, {r) Frame of Plea. — A plea is preceded by a title in this form : " The plea of C. D., a defendant, to the bill of complaint of A. B., complainant," or " The joint and several plea of C. D. and E. F., defendants," etc. Where it is the plea of husband and (0) Barton's Suit in Eq. 103 ; Story's Eq. PI. § 732-739 ; Mitf . Eq. PI. 230 ; Beanie's PI. in Eq. 120-123 ; Coop. Eq. PI. 249, 250 ; Ord vs. Euddleston, 2 Dick. 510. (p) Kittredge vs. Claremont Bank, 3 Story, 590. {q) Barton's Suit in Eq. 103, 104 ; Story's Eq. PI. § 735-835. (r) Barton's Suit in Eq. 104 ; Story's Eq. PI. § 74&-778. THE DEFENSE TO A SUIT. 117 Plea to a Bill — Frame of Plea. wife, the words " and several" should not be inserted ; tliough these words will not vitiate the plea, being mere surplusage, (s) A plea, like a demurrer, is introduced by a protestation against the confession of the truth of any matter contained in the bill. It next states how much of the bill it is intended to cover, and what part in particular ; and this must be clearly and distinctly shown, {t) Therefore, a plea to such parts of the bill as are not answered, will be overruled as too general, (t^) A plea in bar must be accompanied by an answer, showing the truth of the plea, and denying the charges of the bill, (v) And it is not sufficient to deny only a part of the material facts stated in the bill ; a mere denial of facts is proper for an answer, but not for a plea, {w) If the plea professes to go to the whole bill, and does, in fact, cover the whole subject to which the plea applies, and the matter is a full defense to the suit, it is unnecessary to answer other parts of the bill not involved in the subject which forms the ground of defense, (x) xV plea must be perfect in itself, so that, if true, it will make an end of the case, (y) Where the plea is of matter which shows an imperfection in the frame of the bill, it should point out in what that impi r- fection consists. Where, for instance, a plea is for want of parties, it must not only show that there is a deficiency of parties, but should point out who the parties are that are wanting, (z) The plea commonly concludes with a repetition that the matters so offered are relied upon as an objection or bar to the (s) 1 Barb. Ch. Pr. llo ; Pavie vs. A'Court, 1 Dick. R. 13; Story's Eq. PI. § 736-739. (t) Mitf. Eq. PI. 294, 300. («) Anon. 3 Atk. R. 70. (v) Piatt vs. Oliver, 1 McLean, R. 295 ; 8 N. H. 280 ; 5 Johns. Ch. 555 ; 6 Sim. 356. (w) Milligan vs. Milledge, 3 Cranch, R. 220. ix) Sims vs. Lyle, Wash. C. C. Rep. 301. (y) Allen vs. Randolph, 4 Johns. Ch. R. 693 ; see also Bogardus vs. Trinity Church, 4 Paige. Ch. R. 178. (z) Merreweaiher vs. Mellish, 13 Vea. 437-8. 118 THE DEFENSE TO A SCIT. Plea to a Bill — Frame of Plea. suit, or SO much of it as the plea extends to ; and prays the judgment of the court whether the defendant ought to be compelled further to answer the bill, or such parts as are thus pleaded to. (a) If the plea is double, that is to say, if it tenders more than one defense as the result of the facts stated, it will be bad. (J) A plea is not rendered double, however, by the mere insertion therein of several averments, that are necessary to exclude conclusions arising from allegations which are made in the bill, to anticipate and defeat the bar which might be set up in the plea, (c) The rule that a defendant cannot plead double, is not to be understood as precluding the defendant from putting in several pleas to different parts of the same bill. It merely prohibits his pleading, without previous leave, a double defense to the whole bill, or to the same portion of it. A defendant may plead different matters to separate parts of the same bill, in the same manner as he may demur to different portions of the bill, {d) In addition to the requisites of a plea already mentioned, it may be stated that a plea must be certain. It must tender issuable matter, the truth or falsehood of which may be replied to or put in issue ; and that not in the form of general propo- sitions, but specifically and distinctly, {e) Where the plea is accompanied by an answer, the answer must follow the conclusion of the plea. If the answer is merely to support the plea, it is stated to be made for that purpose, " not waiving tlie plea." If the plea is to part of the bill only, and there is an answer to the rest, it is expressed to be an answer to so much of the bill as is not before pleaded to ; (a) Mitf. Eq. PI. 300 ; 1 Barb. Ch. Pr. 116. {b) Nohkissen vs. Hastings, 2 Ves. Jr. R. 84 ; Jones vs. Frost, 3 Mad. 1, 8. (c) Bogardus vs. Trinity Church, 4 Paige, Ch. R. 178 ; 1 Barb. Ch. Pr. 116. {d) 2 Dan. Ch. Pr. 105 ; Moreton vs. Harrison, 1 Blaud, 493 ; Ridgeley vs. Warfield, 1 Bland, 194. (e) Nabob of Arcott vs. East I. Co. 3 Bro. C. C. 292 ; 1 Barb. Ch. Pr. 117 ; Allen vs. Randolph, 4 Johns. Ch. R. 693. THE DEFENSE TO A SUIT. 119 Plea to a Bill — Forms of Pleas — Commencement and Conclusions. and is preceded by the same protestation against waiver of the plea, if) If the plea is such, that an answer is required to support it, it will be overruled, unless such answer is put in. {g) FOKMS or PLEAS. No. ^8. Commencement and conclusion of pleas to the whole hill. In the court. C. D. ) Term, 18 —. ats. \ In Chancery. A. B. ) The plea of C. D., defendant, to the bill of complaint of A. B., complainant. This defendant by protestation, not confessing or acknowl- edging all or any of the matters and things in the complain- ant's said bill mentioned to be true in such manner and form as the same are therein and thereby set forth and alleged, doth plead thereunto, and for plea says, (*) that, etc. [Here set forth the subject m.atter of the plea., and conclude as follows :) All which matters and things this defendant avers to be true, and pleads the same to the whole of the said bill, and demands the judgment of this honorable court whether he ought to be compelled to make any answer to the said bill of complaint ; and prays to be hence dismissed, with his reasonable costs in this behalf most wrongfully sustained. By , Solicitor for Deft. [If the plea is of matters in pais, add affidavit. ) No. 29. Commencement and conclusion of p>leas to ptart of a hill. {Title of cause.) The plea of C. D., defendant to the bill of com- plaint of A. B., complainant. This defendant, by protestation, not confessing or acknowl- edging the matters and things in and by said bill set forth and alleged to be true, in snch manner and form as the same are thereby and therein set forth and alleged, for plea to so much and such parts of said bill as prays, etc., (or seehs a discovery from this defendant,) says, that, etc. (/) Mitf. Eq. PI. 300; 1 Barb. Ch. Pr. 117. (g) Schwarz vs. Wendell, Harring. Ch. R. 395 ; 1 Gill & J. 270. 120 THE DEFENSE TO A SUIT. Plea to a Bill — Plea in Abatement, etc. {Here set forth the subject matter of the plea, and conclude as folloios :) Therefore, this defendant doth plead the same in bar to 60 much of the said complainant's bill as hereinbefore is particu- larly mentioned ; and prays the judg-ment of this honorable court whether he should be compelled to make any further an- swer to so much of the said bill as is hereinbefore pleaded to, and prays to be hence dismissed with his costs and charges in this behalf most wrongfully sustained. N^o. SO. Plea in ahatement to the jurisdiction of the court. {^Commence as in No. 28, ante, page 119, to the^) That these defendants, and each and all of them, before and at the time of filing of the complainant's bill of complaint, were, and still are, residents of the county of — , in said state ; that neither of these defendants, at the time of filing said bill, was a resi- dent of the county of , where said bill was filed ; that the said suit in no manner affects or relates to real estate iu the county where the same was exhibited as aforesaid ; Therefore, etc. {Conclude as i?i Wo. 28.) The above plea is framed with reference to the statute of Illinois, which provides, that suits in chancery shall be com- menced in the county where the defendants, or some one or more of them resides ; or if the defendants are all non-residents, then in any county ; or if the suit may affect real estate, then in the county where the same, or some part thereof, is situ- ated. Bills for injunctions to stay proceedings at law, shall be brought in the county in which the proceedings at law are had. [g) No. 30a. Plea of coverture of the complainant. {Commence as in No. 28, ante, page 119, to the *) That the complainant, before and at the time of filing her said bill, was, and now is, under coverture of one B. B., her husband, who is still living, and in every respect capable, is necessary of insti- tuting any suit at law, or in ecpiity on her behalf. Therefore, etc. {Conclude as in No. 28.) (g) See 111. Stat. THE DEFENSE TO A SUIT. 121 Plea to a Bill — Infancy — Not Administrator — Alien Enemy. In Illinois, a married woman may sue in her own name, without joining the husband, in matters pertaining to her sepa- rate property. (A) No. SI. Plea of infancy without a prochein amy. {Commence as in No. ^5, ante, page 119., to the *.) That the complainant, before and at the time of filing his said bill, in which he appears as sole complainant, was, and now is, an infant under the age of twenty-one years; that is to say, of the age of years, or thereabouts. Wherefore, etc. {Conclude as in No. 28.) No 32. Plea that the defendant never was administrator^ as alleged in hill. {Commence as in No. ^5, ante, page 119, to the *.) That he is not, and never has been, administrator of the goods and chattels, rights and credits, which were of the said E. F., deceased, in the said bill named, as the complainant in his said bill has untruly alleged. Wherefore, etc. {Conclude as in No. £8.) No. 33. Plea that the complainant is an alien enemy. {Commence as in No. '28, ante, page 119, to the '^.) That the complainant, A. B., is alien, born of foreign parents, and in foreign parts, that is to say, at Liverpool, in the kingdom of Great Britain, and out of the United States of America, and under the allegiance of the Queen of Great Britain, who is an enemy of the United States, and to whom the parents of the complainant adhere; and the complainant also before, and at the time of filing his said bill was, and now is, an enemy of the United States, and entered into the United States with the safe conduct of the government of the United States, and has not been made a subject or citizen of the United States, by naturalization or otherwise. Wherefore, etc. {Conclude as in No. 28.) (h) Emerson vs. Clayton, 32 111. 493 ; Cole vs. Van Riper M HI. 58 ; Man- ning vs. Rixford, lb. 129 ; G. B. & Q. R. R. Co. vs. Dunn. 52 111. 260. 122 THE DEFENSE TO A SUIT. Plea to a Bill — Want of Proper Parties — Former Suit Pending. No. 3 If. Plea of want of proper parties. {Commence as in No. ^8, ante, j9a^(5 119, to the *.) That as to so much of the complainant's bill as seeks an account from this defendant, as executor and heir-at-law of E. F., deceased, in the said bill named, this defendant's late brother, for what remains due and owing upon the bond in the said bill men- tioned, bearing date on, etc., and payment by this defendant as such executor and heir-at-law of the said E. F., deceased, as aforesaid, of what he found due on taking such account ; this defendant doth plead thereto, and for plea says, that no part of the sum of dollars, for securing the repayment whereof the said bond was executed, was paid to, or secured by the said E. F., but that the whole was paid to G. H., in the said bond and in the said bill also named, and received by him for his sole use, and that the said E. F. was only a surety for the said G. H., and that the complainant afterwards accepted a composition for what he alleged to be due on the said bond from the said G. H., without the privity of the said E. F. in his lifetime, or this defendant since the death of the said E. F., which took place on or about, etc., as in the said bill men- tioned, since which no demand has been made on this defend- ant for any money alleged to be due on the said bond ; and that the said G. H. died several years ago, seized of consider- able real estate, and also possessed of a large personal estate ; and that his heir-at-law, or the devisee of his I'eal estate, and also the representative of his personal estate, ought to be, but are not made parties to the said bill. Therefore, etc. {Conclude as in Form No. 28.) No. 35. Former suit pending. {Commence as in No. 28, ante, ^J>«^^ 119, to the *.) That on, etc., the said present complainant exhibited his bill of complaint in this honorable court against this defendant and one E. F. for an account of the moneys raised by the sale of the goods and property in the complainant's present bill mentioned, and claiming such shares and proportions thereof, and such rights and interests therein, as he now claims by his present bill ; and praying relief against this defendant in the same manner, and for the same matters, and to the same effect as the complainant now prays by his said present bill ; and this defendant and said E. F. appeared and put in their answer to the said former bill, and the complainant replied thereto ; and the said former bill, and the several proceedings in the said « THE DEFENSE TO A SUIT. 123 Plea to a Bill — Limitations — Release, etc. former cause, now remain depending, and as of record in this honorable court, the said cause being yet undetermined and undismissed. Wherefore, etc. {Conclude as in No. 28.) A plea, to a bill in equity, that there is another suit pending in the same court, for the same cause, is good only when the whole of the relief sought in the second suit is attainable in the first, {i) No. 36. Plea of the Statute of Limitations. {Commence as in No. 28, ante, page 119, to the *.) That if the complainant, either in his own right or as executor of E. F., deceased, in the bill named, ever had any cause of suit against him this defendant, for or concerning any the matters, transac- tions, or dealings in the said bill of complaint mentioned, which this defendant doth in no sort admit, the same did accrue or arise above years before the said bill of com- plaint was exhibited in this honorable court ; and this defend- ant further for plea says, and doth aver, that he did not at any time within years before the filing of the complainant's said bill of complaint, ever promise or agree to come to any account for, or to pay, or any way satisfy the complainant any money, for or concerning any the matters, transactions, or dealings in the complainant's said bill of complaint charged or alleged. Therefore, etc. {Conclude as in No. 28.) No 37. Plea of a release, with answer in support of the same. {Commence as in No. 28, ante, page 119, to the *.) That as to so much and such part of the complainant's bill as seeks an account of the several dealings and transactions between the complainant and this defendant, previously and up to the day of , etc., and prays the balance, if any, which shall be found due, upon taking such account, from this defendant, may be paid by him to the complainant ; this defendant doth plead thereto, and for plea says, that previous to the filing of the com- plainant's bill, that is to say, on, etc., the complainant, in con- sideration of the sum of — ■ — dollars, then paid to him by tliis (i) McKaig vs. Piatt, 34 Md. 2-19. 124 THE DEFENSE TO A SUIT. Plea to a Bill — Plea of Stated Account. defendant, by a certain writing of release, under his hand, and sealed with his seal, ready to be produced to this honorable court, did for himself, his executors, and administrators, remise, release, and forever quit-claim unto this defendant, his heirs, executors and administrators, among other things, the several matters and things in the complainant's bill mentioned and complained of, an account whereof is thereby sought against this defendant as aforesaid, and all suits and demands whatso- ever, both at law and in equity, which the complainant thus had, or might thereafter have in respect of the several dealings and transactions, matters and things, in the said bill mentioned, or any of them ; and this defendant avers, that the said release was freely, fairly and voluntarily given and executed by the the complainant, on the day the same bears date ; and that the complainant well knew the nature and effect thereof previously to giving and executing the same ; and that the sum of dollars so paid by this defendant to the complainant as afore- said, was a full and fair equivalent for any demand which the complainant could or might have against this defendant in respect of the several matters therein, and in the said bill also, mentioned, or any of them. Therefore, this defendant pleads the said release in bar to so much of the complainant's bill as is hereinbefore particularly mentioned, and ])rays the judgment of this honorable court, whether he ought to be compelled to make any further answer to so much of the said bill as is before pleaded unto. And this defendant not waiving his said plea, but insisting thereon for answer to the residue of the said bill, and in support of his said plea, says he denies that the said release was unduly obtained by this defendant from the complainant, or that the complainant was ignorant of the nature and effect of such release, or that the consideration paid by this defendant to induce the complainant to execute the same, was all inade- quate to the just claims and demands of the complainant against this defendant, in'respect to the several dealings and transactions in the said bill mentioned, or any of them; and this defendant denies, etc. etc. {Here insert any other denial or allegation that the case may require^ and add affidavit of the truth of the plea and ansiver.) No. 38. Plea of a stated account. {Commence as in No. ^8, ante, page 119, to the *.) That as to so much and such part of the complainant's bill as seeks an account of and concerning the dealings and transactions therein THE DEFENSE TO A SUIT. 125 Plea to a Bill — Plea and Answer. alle«^ed to have taken place between the complainant and this defendant, at any time before the day of , A, D. 18 — , this defendant for plea thereto, says, that on the said day of . A. D. 18 — , which was previously to the said bill being filed, the complainant and this defendant did make np, state, and settle an account, in writing, a counterpart whereof was then delivered to the complainant, of all sums of money, which this defendant had before that time, by the order and direction, and for the use of the complainant received, and of all matters and things thereunto relating, or at any time before the said day of , A. D. 18 — . being or depending between the complainant and this defendant, and in respect whereof the complainant's said bill of complaint has since been filed ; and the complainant, after a strict examination of said account, and every item and particular thereof, which this defendant avers, according to the best of his knowledge and belief, to be true and just, did approve and allow the same, and actually received from this defendant the sum of dollars, the balance of the said account, which by the said account appeared to be justly due to him from this defendant ; and the complainant there- upon, and on, etc., gave this defendant a receipt, or acquittance for the same, under his hand, in full of all demands, and which said receipt or acquittance is in the words and figures following, that is to say {Here set out receij^t verbatim) ; as by the said receipt or acquittance now in the possession of this defendant, and ready to be produced to this honorable court, will appear. Therefore, etc. {Conclude as in the last precedent^ varying the conclusion and answer, in support of the p>lea, to suit the case. Also, add affidavit of the truth of the jjlea.) JVo. 39. Plea to part and answer to the residue of hill. The plea of C. D., defendant, to part, and the answer of the same defendant to the residue of the bill of complaint of A. B., complainant. This defendant, to all the relief sought by the said bill, and also, to all the discovery thereby sought, except the discov- ery sought by or in respect of (so much of the said bill as prays that this defendant may answer and set forth,) whether, etc., {here the language of the interrogatories which it is neces- sary to answer, must he introduced,) this defendant does plead in bar, and for plea says, etc. {Here set out the plea.) All of which matters and things this defendant does aver to be true, and does plead the same in bar to the whole of the said bill, except such part of the discovery thereby sought as 126 THE DEFENSE TO A SUIT. Plea to a Bill — Signing — Swearing to — When to be Filed. aforesaid ; and tins defendant prays the judgment of this honorable court, whether he ought to be compelled to make any further or other answer to so much of the said bill as is hereby pleaded to, and he prays to be hence dismissed with his costs. And for answer to such parts of the said bill as are excepted, this defendant says, that, etc. {Here insert answer as in 'pre- cedents^ under the head of answers.) Signing of plea. — A plea must be signed by the party as ■well as counsel ; but where it is not sworn to, the signature of counsel is sufficient, {j) When plea must he sworn to. — The rule is inflexible in chancery proceedings, that a plea in bar of matters in pais must be sworn to, (Jc) but pleas to the jurisdiction of the court, or indisability of the person of the complainant, or pleas iu bar of any matter of record, or of matters recorded, as of a record in the court itself, or any other court, need not be on oath. (J) In all cases where a plea is accompanied by an answer, it must be put in upon oath, {m) A plea must be verified by oath, although the complainant has expressly waived an answer from the defendant on oath, {n) If it is not sworn to, the complain- ant may, if application is made in apt time, have it stricken from the files, but the application must be made before the argument of the plea, (c) When to he filed. — A plea, being the second in the order of pleading, it may be filed, when to the whole bill, at any time before answering. Under a general rule to answer by a certain day in term time, a plea, answer or demurrer may be filed. (J) 1 Barb. Cli. Pr. 117 ; Simes vs. Smith, 4 Mad.' 36C. {k) Dunn vs. Keegin, 3 Scam. 292 ; Wall vs. Stuhhs, 2 Ves. & B. R. 354; vs. JDavies, 19 Ves. 81 ; Heartt vs. Corning, 3 Paige, Ch. R. 566. (],) Mitf. Eq. PI. 247, 301 ; Urlinvs. Hudson, 1 Vern. 332. (to) Jefferson vs. Dawson, 3 Ch. Cas. 208. (n) Heartt vs. Corning, 3 Paige, Ch. R. 566. (o) Wall vs. Sttibbs, 2 Ves. & B. R. 354 ; Heartt vs. Corning, 3 Paige, Ch. R. 566. THE DEFENSE TO A SUIT. 127 Plea to a Bill — Replication to — Amendment, etc. But it may well be doubted whether it should be so held as to long rules expiring in vacation, {p) Replication to plea. — If the complainant regards the plea, though good in form and substance, not true in point of fact, he may take issue upon it by filing a replication, and pro- ceed to examine witnesses, as in the case of an answer, to disprove the facts upon which it is endeavored to be sup- ported, {q) The effect of filing a replication to a plea is, that the complainant admits the plea to be good, and the truth of the matter alleged, is the only thing in question, (r) When the issue is thus taken upon the plea, the defendant must prove the facts it sets up. {s) If he succeeds in proving the truth of the matter pleaded, the suit, so far as the plea extends, is barred, {t) It puts in issue nothing except what is dis- tinctly averred in the plea, {u) Amendment of hill after plea. — If the complainant amends his bill after plea filed, it will be considered as an admission of the validity of the plea, {v) Demurrer to pUa not proper, — A demurrer to a defective plea should not be interposed. The proper practice is to set down the plea for hearing, when its sufficiency will be con- sidered. (•MJ) Argument of plea. — The proceedings upon the argument of a plea are nearly the same as those upon the argument of a demurrer. If a plea is supported by an answer upon the argu- (p) EUgour vs. Craioford, 51 111. 249 ; Dunn vs. Keegin, 3 Scam. 292. {q) Mitf. Eq. PI. 301-2; 1 Barb. Ch. Pr. 119; 4 Qilm. 57. (r) lb. ; Harris vs. Ingledew, 3 P. Wms. R. 95 ; Daniels vs. Taggart, 1 Gill & J. R. 311. («) 2 Ves. R. 247 ; Ord vs. Huddleston, Dick. R. 510. (<) Wichalse vs. Short. 3 Bro. P. L. 558 ; Hinde, Pr. 225 ; Fish vs. Miller. 6 Paige, Ch. R. 26 ; Bogardus vs. Trinity GJiurch, 4 Paige, Ch. R. 178. (u) Fish vs. Miller, 5 Paige, Ch. R. 26 ; 1 Barb. Ch. Pr. 119 ; Bogardus vs. Trinity Church, 4 Paige, Ch. R. 178. {v) Spencer vs. Bryan, 9 Ves. R. 231 ; 1 Barb. Ch. Pr. 120. {w) Lester vs. Stevens, 29 III. 155 ; Thomas vs. Braahear, 4 Monr. R. 65. 128 tup: defense TO A SUIT. Plea to a Bill — EflFect of Allowing Plea. ment of tlie plea, the answer may be read to counteqjrove the plea ; and if the defendant appears not to have sufficiently supported his plea by his answer, the plea must be overruled and ordered to stand for an answer only, (x) And where a defendant had answered to an original bill, which was after- wards amended, whereupon the defendant put in a plea to the amended bill, the complainant was allowed to read the answer to the original bill to counterprove the plea to the amended bill, {y) Upon the argument of a plea, every fact stated in the bill, and not denied by the averments in the plea and by the answer in support of the same, must be taken as true, {z) And if a plea is set down for argument by the complainant without replying to it, the matter contained in it must be considered as true, (a) "Where an issue is taken upon a plea, and the truth of such plea is established by the proofs, the bill must be dismissed; as the court, in that stage of the proceedings, does not inquire or decide as to the validity of the matters pleaded, as a defense to the suit, {h) A plea, upon argument, may be either allowed simply, or the benefit of it may be saved to the hearing ; or it may be ordered to stand for an answer; or it may be overruled. Effect of allowing the plea. — If, upon argument, a plea is allowed, it is thereby determined to be a full bar to so much of the bill as it covers, if the matter pleaded, with the aver- ments necessary to support it, be true. If, therefore, the plea is allowed, the complainant may take issue on the plea by replying to it, on payment of the costs of the hearing there- upon, (c) If the complainant files a replication to the plea, the defend- ant will be obliged to prove the truths of the fact set up in the (a;) Mitf. Eq. PI. 304 ; Hildyard vs. Gressy, 3 Atk. 304 ; 1 Barb. Ch. Pr. 120 ; Story's Eq. PI. i; 697. iy) lb.; Hildyard vs. Creasy, 3 Atk. R. 304. (z) Bogardus vs. Trinity Church, 4 Paige, Ch. R. 178. {a) Executors etc. vs. Roberts, 1. Wash. C. C. R. 320 ; 1 Barb. Ch. Pr. 121. (6) Dowes vs. McMichael, 6 Paige, Ch. R. 130. (c) 1. Barb. Ch. Pr. 121 ; Story's Eq. PI. § 697. THE DEFENSE TO A SUIT. 129 Plea to a Bill — Saving Benefit at the Hearing. plea, {d) If the complainant omits to file a replication in such a case, not only the validity of the plea as a bar is admitted, but the truth of the facts set up in it ; and of course the suit is at an end. {e) If the plea has been replied to, the complainant may, if he desires, go into evidence to disprove it ; and if he has, in his bill, alleged any matter which, if true, may have the effect of avoiding the plea, such as notice, fraud, etc., he may examine any witnesses he may have to support his allegation. And where the plea introduces raattei"S of a negative nature, such as denial of notice, fraud, etc., it will, be necessar}'^ for him, in case sufficient is not admitted by the answer in support of the plea, to show the existence of the notice or fraud, to go into evidence in support of the affirmative of the proposition, [f) Saving the 'benefit of a plea to the hearing. — It sometimes hap- pens that upon the argument of a plea, the court considers that, although so far as then appears, it may be a good defense, yet there may be matters disclosed in evidence which, supposing the matter pleaded to be strictly true, would avoid it. In such a case the court, in order that it may not preclude the question of allowing the plea, directs that the benefit of it shall be saved to the defendant at the hearing, {g) The effect of an order for this purpose is to give the com- plainant an opportunity of replying and going into evidence without overruling the plea. (A) And when the benefit of the plea is reserved to the hearing, such parts of the bill as are covered by the plea are not to be answered, {i) and neither party recovers cost until the hearing, {j ) id) Mitf . Eq. PI. 302. (e) 1 Barb. Ch. Pr. 121. (/) 1 Barb. Ch. Pr. 121 ; Eyere vs. Dolphin, 2 Ball & B. R. 303 ; Saunders vs. Leslie, 2 Ball & B. 515. (a) Mitf. Eq. PI. 303 ; Astley vs. Fountaine, Finch, R. 4 ; 1 Barb. Ch. Pr. 121-2 ; Story's Eq. PI. § 696-700. {h) Cooth vs. Jackson, 6 Ves. 12, 18. (t) Gilb. For. Rom. 64. (j) Heartt vs. Corning, 3 Paige, Ch. R. 566; 1 Barb. Ch. Pr. 122; see J*ayne vs. Avery, 21 Mich. 524. 9 130 TUE DEFENSE TO A SUIT. Plea to a Bill — Standing for Answer — Overruling, etc. Allowing plea to stand for answer.— Whew a plea is per- mitted to stand for an answer, it is determined tliat it contains matter which, if put in the form of an answer, would have constituted a valid defense to some material part of the matters to which it is pleaded as a bar, but that it is not a full defense to the whole matter which it professes to cover, or that it is informally pleaded, or is improperly offered .as a defense by way of plea, or that it is not properly supported by answer. But a plea which sets up no valid defense to any part of the matter it professes to cover, will not be permitted to stand for answer, {k) Overriding plea. — If upon the argument the court is of opinion that the plea cannot under any circumstances, be made use of as a defense, it is simply overruled, and the complainant may have his costs, ij) If at the hearing the plea is not found to be true, it will be overruled as false, and the complainant will be entitled to a decree, as on a bill taken as confessed. But in such a case the complainant will not lose the benefit of an answer, if a discovery is necessary, (m) Courts do not favor a plea in bar ; but the overruling of such a plea does not deprive the defendant from insisting on the defense in his answer, (w) When jylea must he supported hy answer. — Where there is any statement or charge in the bill which affords an equitable circumstance in favor of the complainant's case, against the matter pleaded, such as fraud or notice of title. That state- ment or charge must be denied by way of answer, as well as by averments in the plea, {o) (A;) Orcutt vs. Orms, 3 Paige, Ch. R. 459 ; Leacraft vs. Demprey, 4 Paige, Ch. R. 124 ; Mitf. Eq. PI. 303 ; Lube's Eq. PI. 46 ; 1 Barb. Cli. Pr. \%2;8eUen ve. Leicen, 3 P. Wms. R.239 ; Story's Eq. PI. § 696-700. (0 Story's Eq. PI. § 699. (m) Dows vs. McMichael, 2 Paige, Ch. R. 34.5 ; Brownsicord vs. Edwards, 2 Ves. Sr. 247. (n) Piatt vs. Oliver, 1 McLean, R. 295. (o) 1 Barb. Ch. Pr. 128 ; Mitf. Eq. PI. 239, 244. THE DEFENSE TO A SUIT. 131 Plea to a Bill — When to be Supported by Answer. In general, an answer in support of a plea cannot be required in those cases 'sphere such negative averments as those above stated are not necessary. When the defense can be made by a jpure plea, that is, a plea which merely suggests matter in avoidance of the complainant's right to sue, as stated in the bill, an answer in support of the plea is not required. In such a case, the defendant, by his plea, admits the complain- ant's case ; and so full and complete is the admission, that if, after argument, issue be joined upon the truth of the plea, and the plea be found false, there is an end to the dispute, and the complainant is entitled to a decree upon this implied admission of his case. (^) The cases in which it is necessary that a plea should be sup- ported by answer have been very conveniently divided into : first., those where the complainant admits the existence of a legal bar, and charges some equitable circumstances to avoid its effect ; and, second., those where the complainant does not admit the existence of any legal bar, but states some circum- stances which maj^ be true and to which there ma}' be a valid ground of plea, together with other circumstances which are inconsistent with the substantial validity of a plea, {q) An answer in support of a plea is no part of the defense. The defense is the matter set up by the plea ; the answer is that evidence which the complainant has a right to require and to use, to invalidate the defense made by the plea; and the complainant is entitled to make use of it, not only upon the hearing of the cause, upon the issue raised by the plea, after the plea shall have been decided to be a good bar upon argu- ment, but upon the argument of the plea itself, before any evidence can be given ; (r) for the purpose of counterproving the plea, by reading from it any facts or admissions which may negative the matters pleaded or averred in the plea, {s) (p) 1 Barb. Ch. Pr. 128 ; Wigram on Disc. 36 ; Wood vs. Strickland, 3 Ves. & B. 158 ; 2 Dan. Ch. Pr. 99, 100 ; Story's Eq. PI. § 670. (q) 1 Barb. Ch. Pr. 128; Hare on Disc. 30 ; Story's Eq. PI. § 674-5. (r) Mitf. Eq. PI. 244, note ; Story's Eq. PI. g 671 ; Foley vs. Bill, 4 Mylne & Craig, 475. («) Eildyard vs. Gressy, 3 Atk. 303; Hony vs. Hony, 1 Sim. & Stu. 569; Story's Eq. PI. § 672. 132 THE DEFENSE TO A SUIT. Answer to a Bill — Nature of. The answer in support of the plea being no part of the defense, but only what the complainant has a right to require, to enable him to avoid that defense, it follows that it must be full and clear ; otherwise it will not support the plea ; for the court will intend all matters alleged in the bill, to which the complainant is entitled to an answer, to be against the pleader, unless they are clearly and fully denied, {t) But although an answer in support of a plea is required to be full and clear, yet, if the equitable matters charged are fully and clearly denied, it may be sufficient to support the plea, although all the circumstances charged in the bill may not be precisely answered, (w) In such cases, however, the complain- ant is not precluded by the circumstances of the court having held, upon the argument of the plea, that the charges in the bill are sufficiently denied to exclude intendment against the pleader, from afterwards excepting to the sufficiency of the answer, in any point in which he may consider it defective, (v) Where the complainant waives the necessity of an answer being put in on oath, if the defendant puts in a plea to the bill, he need not support it by answer, {w) SECTION V. ANSWER TO A BILL. Natwre of. — Where the case stated in a bill is not such as to render a resort to a demurrer or plea necessary or advisable, or if either of these methods of defense has been adopted, and the demurrer or plea overruled, either wholly or in part, the defendant, unless he disclaims, must answer fully all the material matters alleged and stated in the bill. He is not («) 1 Barb. Cli. Pr. 129 ; Mitf. Eq. PI. 244 ; Hildyard vs. Cressy, 3 Atk. R. 303. («) Mitf. Eq. PI. 299; Waters vs. OlanvUU, Gilb. R. 184; 1 Barb. Ch. Pr. 129. (v) Id. {w) Ufartt vs. Corning, 3 Paige, Cli. R. 566 ; see also Story's Eq. Pr. § C81. G82. THE JDEFENSE TO A SUIT. 133 Answer to a Bill — Nature of. bound, however, to answer allegations which are purely scan- dalous, impertinent, immaterial or irrelevant ; {a) nor anything which may subject him to a penalty, forfeiture or criminal prosecution ; (5) but if the defendant relies upon this objection, he should specially set it up as a ground for refusing the par- ticular discovery in his answer, (c) Nor is he bound to answer what would involve a breach of professional confidence, {d) He is not compelled to discover the facts respecting his own title, but merely those which respect the title of the complainant, {e) In each of these cases, if the defendant does not think proper to defend himself from a discovery by a demurrer, or by a plea, he has been permitted by answer to insist that he is not obliged to make the discovery. In each of these cases, the complain- ant may except to the defendant's answer as insufficient; and upon that exception, it will be determined by the court whether the defendant is, or is not, obliged to make the discovery, [f) The answer generally traverses the allegations of the bill, or some of them, and alleges other facts and circumstances to show the rights of the defendant in the subject of the suit. Sometimes it admits the truth of the case made by the bill, and either with, or without stating additional facts, submits the questions arising upon the case thus made, to the judgment of the court. In all cases where relief is sought, an answer con- sists of two parts ; first, the defense to the case made by the («) Story's Eq. PI. § 846 ; Mitf. Eq. PI. 307, note (h), 316, note (q) ; Davis vs. Collier, 13 Geo. R. 485. (&) Adams vs. Porter, 1 Cush. R. 171 ; Phillips vs. Prevost, 4 Johns. Ch. 205; Butler vs. Catling, 1 Root, 310; Legoux vs. Waute, 3 Har. & J. 184; Brockway vs. Copp, 3 Paige, Ch. R. 539 ; Wolfe vs. Wolfe, 2 Har. & G. 382 ; Hayes vs. Caldwell, 5 Gilm. 35. (c) Adams vs. Porter, 1 Cush. 171 ; Story's Eq. PI. § 846 ; Sloman vs. Kelly, 3 Younge & Coll. 673. (d) Story's Eq. PI. § 846 ; Strafford vs. Eogan, 2 Ball & Beatt. R. 164; Greenough vs. Oaskell, 1 Mylne & Keen, 99 ; Jones vs. Pugh, 12 Sim. 470 ; 1 Qreenl. Ev. § 237 ; Phillips vs. Prevost, 4 Johns. Ch. R. 205 ; Foss vs. Haynes, 31 Maine. 81 ; Leggett vs. Postley, 2 Paige, Ch. 599. (e) Story's Eq. PI. § 846, 572, 825 ; Hare on Disc. 268-273 ; Wigram on Disc. 21, 22,111, 113. 147-149, 195, 196, 1st ed. ; Id. 261-346, 2d ed.; Story vs. Randall, 17 111. 467. (/) Mitf. Eq. PI. 307, 308 ; Story's Eq. PI. § 846. 134 THE DEFENSE TO A SUIT. Answer to a Bill — Nature of. bill, and, second, the response of the defendant to the interro- gatories of the complainant, (g) Where a defendant submits to answer, he must make a full, frank and explicit disclosure of all matters material or neces- sary to be answered, with all their material circumstances, whether resting within his own knowledge, or upon his in- formation and belief, (A) or he must deny all knowledge with reo-ard to it. If he has information, aside from the bill, he must state his belief, {i) If the defendant has no information on the subject, he must state that he has no information, or is utterly ignorant of the fact ; (/) and if the information sought is within his reach, he is bound to obtain it, and state it in his answer, {k) It will not be sufficient to allege that a third per- son who is interested in the suit, can prove the fact sought to be discovered. (J) A fact alleged in the bill, and admitted in the answer, is established ; but every fact alleged in the answer, in avoid- ance of such fact, must be proved like a plea, if the answer is traversed, (m) And where application has been filed, allega- tions in the answer not responsive to anything in the bill, can- not benefit the defendant at the hearing ;(/i) and if the answer ig) Barton's Suit in Eq. 106. {h) Dan. Ch. Pr. 487 ; Barton's Suit in Eq. 106 ; Hagthorp vs. Hook, 1 Gill & J. 270; Bank of Utica vs. Messereau, 7 Paige, Ch. R. 517; Super- visors etc. vs. M. & W. R. R. Co. 31 111. 365 ; Woods vs. Morrell, 1 Johns. Ch. R. 103 ; Devereaux vs. Cooper, 11 Vt. 103. (t) Devereaux vs. Cooper, 11 Vt. 103 ; Bradford vs. Geiss, 4 Wash. C. C. R. 513 ; Brooks vs. Byam, 1 Story, 326 ; Smith vs. Lasher, 5 Johns. Ch. R. 347 ; Tradesman's Bank vs. Hyatt, 3 Edw. Ch. 195 ; Norton vs. Warren, 3 Edw. Ch. 106 ; Robinson vs. Woodgate, 3 Edw. Ch. 422 ; Neal vs. Hag- thorp, 3 Bland, 551 ; Bailey vs. Wilson, 1 Dev. & Bat. Ch. 182 ; Sloan vs. Little, 3 Paige, C. R. 103 ; Champlin vs. Champlin, 2 Edw. Ch. 363 ; Robert- son vs. Bingley, 1 McCord, Ch. 333 ; King vs. Ray, 11 Paige, Ch. R. 235 ; Walker vs. Walker, 3 Kelly, 302; Smith vs. Loomis, 1 Halst. Ch. N. J. 60 ; Jones vs. Hawkins, 3 Ired. Eq. R. 110. ij) Kittredge vs. Claramount Bank, 1 W. & M. 244. (A;) Swift vs. Swift, 13 Geo. 140. {I) Bell vs. Pomeroy, 4 McLean, 57. (to) McDonald vs. McDonald, 16 Vt. 630. (tj.) Wakeman vs. Groter, 4 Paige, Ch. R. 33. THE DEFENSE TO A SUIT. 135 Answer to a Bill — Nature of. is defective or evasive, it is a ground of exception, but not for an implied conclusion against the defendant, (o) A mere general denial of confederacy and fraud, usual in an answer, is not suflScient, where particular acts of fraud are charged in the bill ; {p) and a demurrer to a bill containing such charges would be overruled. (^) Where the defendant, in his answer, admits facts which render the transaction in question legally or constructively fraudulent, a general denial of fraud is unavailing ; (r) and the answer must positively and directly deny tlie allegations of the bill, {s) If an answer is held to be insufficient, it is treated as no answer ; and if the defendant neglects to make a sufficient answer, as ordered, the bill may be taken pro confesso^ and a final decree rendered, {t) When a bill charges the defendant with notice of a par- ticular fact, an answer must be given without a special inter- rogatory ; but a defendant is not bound to answer an inter- rogatory not warranted by the charges in the bill, (w) and what is responsive to a bill in the answer, is to be determined by the bill, and not by the interrogatories ; {v) and where the defendant pleads the statute of limitations in answer to a bill in equity, he must answer all the charges in the bill which may avoid the bar, by showing a new promise ; but he need not answer the oi'iginal cause of action, {w) The rule for determining whether an answer to any particular aver- ment in a bill is necessary, is to ascertain whether it is material to the complainant to enable him to obtain the relief he ip) Blaisdell vs. Stevens, 16 Vt. 179 ; Phillips vs. Oierton, 4 Hey. 291 ; Eq. Draft. 563. {p) Fellows vs. Fellows, 4 Cowen, 683 ; Bailey vs. Wright, 2 Bond, 181. {q) Burnley vs. Jeffersonville,'6 McLean, 336; see also Lewis vs. Baird,'d McLean, 56 ; Gray vs. Began, 23 Miss. Cash. 304. (r) Uawley vs. Cramer, 4 Cowen, 717 ; Wood vs. Mann, 1 Sumner, 506. (s) Taylor vs. Luther, 2 Sumner, 228 ; Pettit vs. Candler, 3 Wend. 618, (t) Buckingham vs. Peddicord, 2 Bland, 447. (m) Mechanics' Bank vs. Lynn, 1 Pet. 376 ; Brooks vs. Byam, 1 Story, R. 226 ; Methodist E. Church vs. Jaques, 1 Johns. Ch. R. 65. {v) McDonald vs. McDonald, 16 Vt. 630. {w) Ghapin vs. Coleman, 11 Pick. 331. 136 THE DEFENSE TO A SUIT. Answer to a Bill — Exceptions to — Fraud, how Alleged. seeks ; (a;) a court will compel an answer to all the allega- tions of a bill that require proof, (y) A defendant shall be at liberty, by answer, to decline answer- ing any interrogatory, or part of an interrogatory, from answer- ing which he might have protected himself by demurrer ; and he shall be at liberty so to decline, notwithstanding he shall answer other parts of the bill from which he might have protected himself by demurrer, (z) If the defendant desires to raise the objection to the bill^ that the complainant has an adequate remedy at law, he should do so by demurrer, or at least it should be specially relied on in the answer. The objection cannot be raised for the first time at the hearing, (a) The Illinois Chancery Practice Act of 1872 (b) requires every defendant to answer fully all the allegations and interrogatories of the complainant, whether an answer on oath is waived or not, except such as are not required to be answered, by reason of exceptions, plea or demurrer thereto allowed. And " on the coming in of any answer, the complainant may, by leave of court, exhibit and file further interroga- tories, to be answered by the defendant within such time as shall be fixed by the court." Exceptions to answers ^— When to he filed. — All exceptions to answers or to interrogatories exhibited, shall be filed within such time as the court may direct, and be argued at such time as the court may appoint, (c) Exceptions to answers will be considered in a future chapter, {d) Fraud, how alleged. — If a defendant wishes to rely upon a matter of fraud on the part of the complainant, the circum- (a;) Batterson vs. Ferguson, 1 Barb. 490. {y) Stacy vs. Randall, 17 111. 467. (2) Rule 44, Rules of Pr. C. E. of U. S. 1870. {a) Tarhell vs. Bowman, 103 Mass. 341 ; Creely vs. Bay State Brick Co. 103 Mass. 514. (ft) Laws of 111. 1872, p. 333. (c) Underwood's Stat. Const. 71. id) Post. THE DEFENSE TO A SUIT. 137 Answer to a Bill — Mode of Answering. stances should be fully and specifically stated ; {e) as no pre- sumption is to be indulged in favor of an answer, any more than in other pleading. {/) Mode of answering. — An answer is the most usual method of defending a bill in chancery, and it may be put in either to the whole bill, or to such parts of it as are not covered by demurrer or plea. It is capable of embracing more circum- stances than a plea, and for this reason may be used with much greater propriety in cases where the defendant is not anxious to prevent a discovery, although the plea might be a complete bar. But where, by introducing additional circumstances, he has a good opportunity of showing his case in a more favorable light, the answer is the best mode of defense, {g) An answer has a double purpose ; first, that of answering the complainant's case as made by the bill ; and, second, that of stating to the court the nature of the defense upon which the defendant means to rely ; and in this respect it fulfills the duty of a plea, or a series of pleas, either denying facts upon which the complainant's equity, as stated in the bill, arises, or by confessing such facts, and avoiding them by the introduction of some new matter, from which contrary inferences may be drawn. The conclusions of law from the facts stated should not be stated. The facts intended to be relied on should be clearly and succinctly alleged ; and the inference of law from them should be left to the court after argument. The com- plainant may set up any number of defenses in his answer, as a consequence of the same state of facts, which his case will allow, or ingenious counsel can suggest, but the defenses must be consistent with each other, {h) If they are inconsistent, or alternative, they are bad, {i) and the result will be to deprive (e) Mtzpatrirk vs. Beatty, 1 Gilm. 454; Mechanics' Bank vs. Levy, 1 Edw. Ch. 316. (/) Mahar vs. O'Hara, 4 Gilm. 424. (£r) 1 Barb. Ch. Pr. 130. {h) Stone vs. Moore, 26 111. 165; Craig vs. People etc. 47 111. 487; 3 Anst. 397, 386 ; McCle. 317 ; 2 Dan. Ch. Pr. 814-816. (t) Jesus College vs. Gibhs, 1 Younge & Coll. 145 ; 6 Price, 504. 138 THE DEFENSE TO A SUIT. Answer to a Bill — Frame of Answer — May be Joint. him of the benefit of either, and to entitle the complainant to a decree, (j) The defendant may, in his answer, rely on any matter which shows thai the complainant is not entitled to the relief he claims by his bill. If he succeeds in establishing such a defense, there will be a denial of the relief sought, and a dis- missal of the bill. The answer, however, can be used only for the purpose of defense. It cannot be used for relief. AJjirmative relief not allowed on cmswer. — jSTo affirmative relief can be granted to a defendant on an answer alone. To obtain such relief he must exhibit his cross bill. (Jc) Frame of an answer. — An answer always begins with its title, specifying of which of the defendants it is the answer, and the names of the complainants in the suit in which it is filed as an answer, (f) It is irregular, and may be rejected, if it is not properly entitled, and does not show what bill it purports to answer, im) Answers may be joint. — Two or more defendants may join in the same answer, and where their interests are the same, and they appear by the same solicitor, they ought to do so, unless some good reason exists for their answering sepa- rately ; [n) for otherwise the non-joinder may affect them in the matter of the costs at the final hearing, (o) It may, there- fore, be stated as a general rule, that the defendants should answer jointly, unless their interests are different, (j?) (i) 2 Dan. Ch. Pr. 243. {k) Turleton vs. Fietes, 1 Gilm. 470; Edwards va. Helm, 4: Sc&m. 143; McC'onnell vs. HjJson, 2 Gilm. 640 ; Mason vs. McOirr, 28 111. 322 ; McCagg vs. Ileacock, 42 111. 153 ; Banna vs. Ratekin, 43 111. 462 ; Tittsworth vs. Stout, 49 111. 78 ; Conwell vs. McCowen, 53 111. 363 ; Howett vs. Selby, 54 111. 151. [1) Coop. Eq. PI. 323 ; Story's Eq. PI. § 869. {m) Supervisors Fulton Co. vs. M. a form of answer., and the hill has also hcen amended. The further answer of C. D., one of the defendants to the- original bill, and his answer to the amended bill of complaint of A. B., the complainant. No. JfS. Title of answer to a supplemental hill. The answer of C. D., the defendant to the supplemental bill of complaint of A. B., the complainant. No. Jt.6. Title of amended answer. The amended answer of C. D., the defendant, to the bill of complaint of A. B., the complainant. No. Jf.7. Title of answer hy infants hy their guardian ad litem. The answer of C. D., an infant under the age of twenty-one years, by E. F., his guardian ad litem, to the bill of complaint of A. B., the complainant. II. THE COMMENCEMENT. No. IS- Introduction to an answer of one defendant. This defendant, now and at all times hereafter, saving ta himself all manner of benefit and advantage of exception which can or may be had or taken to the many errors, uncertainties and other imperfections in the said bill contained, for answer thereunto, or to so much and such parts thereof as this defend- ant is advised it is or are material or necessary for him to make answer unto, answering, says, etc. Or thus : This defendant reserving to himself all right of exception ta the said bill of complaint, for answer thereto, says, etc. No. 1^9. Introduction to answer of several defendants. These defendants, now and at all times hereafter, saving and reserving to themselves, and each of them, all benefit and THE DEFENSE TO A SUIT. 147 Answer to a Bill — Common Forms in Framing. advantage of exception or otherwise, that can or may be bad or taken to tbe many errors, uncertainties and other imperfections in tbe said bill contained for answer thereto, or to so much thereof as these defendants are advised is or are material or necessary for them, or any of them, to make answer unto, they, these defendants, severally answering, say, etc. Or thus : These defendants, reserving to themselves all right of excep- tion to tbe said bill of complaint, for answer thereto, say, etc. in. COMMON FOKMS IN FRAMING ANSWERS. No. 60. Where defendant admits a statenient. And this defendant further answering, says that he has been informed and believes it to be true, that, etc. Or, This defendant admits that, etc. No. 51. Where a defendant admits a statement of a loritten instrument. And this defendant farther says, that he has been informed, and believes it to be true, that, etc. ; but for greater certainty therein, craves leave to refer to the said, etc., when the same shall be produced. No. 6S. Where a defendant believes a statement may he tme^ hut qualifies his admission of it, not Tcnowing the same of his own knowledge. And this defendant further says, he has never heard or been informed, save by the complainant's said bill, whether, etc. ; but this defendant believes that, etc., as in the said bill is alleged. No. 53. Where a defendant is entirely ignorant with regard to the statement in the hill. And this defendant, further answerinor, says, it may be true, for anything this defendant knows to the contrary, that, etc. ; but this defendant is an utter stranger to all and every such matters, and cannot form anv belief concerning the same. 148 THE DEFENSE TO A SUIT. Answer to a Bill — General Frame of Answer. No. 5U' Where one of two defenda/nts^ of his ow7i knowledge, knows the statement in the hill to be true, and the other defendant does not know the same, hut helieves the answer of his co-defendant. And this defendant, C. D., further severally answering, says, and this defendant, E. F., believes it to be true, that, etc. No. 55. Where one of two defendants denies the allegation in the Mil, and the other defendant helieves such denial to he true. And this defendant, C. D., further severally answering, says, he denies, and this defendant, E. F., believes such denial to be true, that, etc. No. 56. Where several defendants ^oin, and are all ignorant of the allegations %n the hill. And these defendants further severally say that they, or any or either of them, to the knowledge or belief of the others or other of them, do not know, and have never been informed, save by the complainant's bill, and cannot set forth as to their belief or otherwise, whether, etc. No. 57. General frame of an answer. In the Court. Term, 18—. In Chancery. The answer of C. D., defendant to the bill of com- plaint of A. B., complainant. This defendant, now and all times hereafter, saving and reserving unto liimself all benefit and advantage of exception which can or may be had or taken to the many errors, uncer- tainties and other imperfections in the said bill contained, for answer thereunto, or to so much and such parts thereof as this defendant is advised it is or are material or necessary for him to make answer unto, answering, says, etc. This defend- ant admits, etc. Tliis defendant, further answering, denies, etc., {and so on through the whole hill, admit or deny every material allegation, and set up any matter in defense or avoidam.ce, as the natv/re of the case may require, ana conclude as follows :) THE DEFENSE TO A SUIT. 149 Answer to a Bill — Short Form of Answer. And this defendant denies all and all manner of unlawful combination and confederacy, wherewith he is by the said bill charged, without this that there is any other matter, cause or thing in the complainant's said bill of complaint contained, material or necessary for this defendant to make answer unto and not herein and hereby well and sufficiently answered, confessed, traversed and avoided or denied, is true to the knowledge or belief of this defendant ; all which matters and things this defendant is ready and willing to aver, maintain and prove, as this honorable court shall direct ; and prays to be hence dismissed with his reasonable costs and charges in this behalf most wrongfully sustained. , Sol. for Defendant. C. D. If the answer is required to be under oath, the following affidavit should be attached : No. 58. Affidavit to ansioer. ss. State of County of On this day of , 18 — , before me personally ap- peared C. D., and made oath that he has read {or heard read) the above answer, subscribed by him, and knows the contents thereof, and that the same is true, of his own knowledge, except as to matters which are therein stated to be on his information and belief, and as to those matters, he believes them to be true. , Clerk of the ^ Court. No. 59. Short form of answer In the Court. C. D. ) Term, 18— ats. y In Chancerv. A. B. The answer of C. D., defendant, to the bill of com- plaint of A. B,, complainant. This defendant reserving to himself all right of exceptions to the said bill of complaint, for answer thereto, says, etc. {Pro- ceed with the several averments according to the case, admitting or denying every material allegation in the stating part of the MU, and set up any matter in defense or avoidance as the nature of the case may require / and conclude as follows :) 150 THE DEFENSE TO A SUIT. Answer to a Bill — Infants — Statute of Frauds, etc. And this defendant further answering, denies that the com- plainant is entitled to the relief, or any part thereof, in the said bill of complaint demanded, and prays the same advantage of this answer as if he had pleaded or demurred to the said bill of complaint ; and prays to be dismissed with his reasonable costs and charges in this behalf most wrongfully sustained. , }:>ol. for Defendant. C. D. {Add affidavit, if required, as in last form.) No. 60. Answer of infants hy their guardian ad litem. {^Title as in No. 57, ante, page IJfS.) The answer of E. D. and C. D., infants, under the age of years, by E. F., their guardian ad litem, to the bill of complaint of A. B., the complainant. These defendants answering by their guardian ad litem, say, that they are infants, this defendant E. D., of the age of years, or thereabouts, and this defendant C. D., of the age of years, or thereabouts, and they therefore submit their rights and interests in the matter in question in this cause, to the tender consideration and protection of this honorable court, and pray strict proof of the matters alleged in said bill of complaint. E. D. C. D. By E. F., their guardian ad litem. No. 61. Statement in answer, claiming the henefit of the statute of frauds. And this defendant says, that by the statute of , it is among' other things provided, that, no action shall be brought whereby to chai'ge any person upon any contract of any lands, tenements and hereditaments, or any interest in or concerning them, unless the agreement upon which such action should be brought, or some menaorandum or note in writing shall be signed, by the said party to be charged therewith, or some other person by him lawfully authorized ; {give the language of the statute) And this defendant insists upon the said statute, and claims the same benetit as if he had pleaded the same. No. 62. Conclusion of an answer, insisting that the com- plaina/nt has am, adequate remedy at law. And this defendant submits to this honorable court that all and every the matters in the complainant's bill mentioned and THE DEFENSE TO A SUIT. 151 Answer to a Bill — When to be Filed — Of Amended Bill. complained of, are matters which may be tried and determined at law, and with respect to which the complainant is not enti- tled to any relief from a court of equity ; and this defendant asks that he shall have the same benefit of this defense as if he had demurred to the complainant's bill ; and this defendant denies, etc. When to he filed. — In Illinois the defendant, when properly summoned, served with a copy of the bill or petition, or noti- fied as required by the Practice Act of 1872, is held to except, demur, plead or answer on the return day of the summons ; or if the summons is not served ten days before the first day of the term at which it is returnable, by the first day of the next term, or in case of service by copy of the bill, or by notice, at the expiration of the time required to be given, or within such further time as may be granted by the court, or in default thereof, the bill may be taken as confessed, {g) If the defendant shall appear at the next term and offer to file his answer to the bill, the court may permit him to do so, upon his showing sutficient cause, and paying the costs of the preceding terms ; in such case the decree shall be vacated, and the cause may be proceeded with as in other cases. [K) When the defendant has obtained an extension of time in which to answer, if a certain day in term is fixed, he may demur, plead or answer. But it may be doubtful whether he could file a demurrer or plea if he obtained an extension of time expiring in vacation, [i) Ansioer to amended hill. — In answering an amended bill, the defendant, if he has answered the original bill, should answer only those matters which have been introduced by the amendments, {j) In fact the answer to an amended bill consti- tutes, together with the answer to the original bill, but one record, as much as if it had been engrossed on the same (g) Laws of 111. 1872, p. 332. (/t) lb. (i) Kilgour vs. Crawford, 51 111. 249 ; 6 Pet. 327 ; Dunn vs. Keegin, 3 Scam. 292 ; see Burrall vs. Bnineteaux, 2 Paige, Ch. R. 331. (j) Hinde's Ch. Pr. 22 ; 1 Barb. Ch. Pr. 159. 152 THE DEFENSE OF A SUIT. Answer to a Bill — Amendment of. paper ; (Z-) in the same manner that an original and an amended bill are considered as the same record. Upon this principle it is that it has been held that it is impertinent to repeat, in the answer to the amended bill, what appears upon the answer to. the original bill, unless by the repetition the defense is mate- rially varied. {I) Where the amendments are not noted npon the amended bill, the defendant should ascertain where the amendments ai'e and answer them only, (m) Amendment of answer. — Permission to a defendant to- amend his answer is a matter in the discretion of the court,, and will generally be allowed in the promotion of justice, and when injury cannot result to the complainant, and in cases where injury might result unless time is given to the opposite part}" to meet the change in the case produced by the amend- ment, the court will refuse leave to amend, or give the other party a reasonable time to meet the amendment, (n) Generally, amendments will be allowed in chancery pleadings at the discretion of the court, {o) When it is made on a material point, the motion should be based upon an affidavit of the facts M'hich make it necessary, (p) An amendment may be granted for the purpose of correcting a mistake or error in a matter of fact, or in the statement of a fact ; {q) or in making an admission of assets ; (r) or a mistake in the title of the answer, (s) So it will be allowed where new matter has come to the knowledge of the defendant, since the answer was put in ; (t) or in cases of (k) Mitf. Eq. PI. 257 ; Hildyard vs. Cressy, 3 Atk. 303 ; Bennington Iron Co. vs. Campbell, 2 Paige, Ch. R. 159. il) Smith vs. Searle, 14 Ves. 415. (m) Bennington. Iron Co. vs. Campbell, 2 Paige, Ch. R. 159 ; 1 Barb. Ch. Pr. 159. («) Wylder vs. Crane, 53 111. 490. (o) Artee vs. Engart, 13 111. 243 ; Liggon vs. Smith, 4 Hen. & Munf. 47T. {p) Liggon va. Smith, 4 Hen. & Munf. 477 ; 1 Barb. Ch. Pr. 1G4. {q) Alpha vs. Pnyman, 1 Dick. R. 33 ; Berney vs. Chambers, Burab. 248 ; Countess vs. Qifford, 2 P. Wms. R. 424; 1 Barb. Ch. Pr. 164. (r) Dagley vs. Crump, 1 Dick. 35. («) Amb. 62 ; 1 Mad. 269 ; 1 Ves. & B. 186. {t) Patterson vs. Slaughter, Amb. 292 ; Wells vs. Wood, 10 Ves. R. 401 ; Alpa vs. Payman, Dick. 33. THE DEFENSE TO A SUIT. 153 Disclaimer — Nature of. as where an addition has been made to the draft of the answer, after the defendant has perused it. {u) It will be allowed where a defense is defectively set forth, in order to give the party the benefit of the defense which he intended to present. But he will not be permitted to put in a new or addi- tional plea or answer, (v) SECTION VI. DISCLAIMEK. Nature of. — A disclaimer is a renunciation by the defendant of all interest or claim to the subject of demand made by the complainant in his bill. It cannot be used, however, for the purpose of depriving the complainant of his right to a fuU answer, where it is evident that, notwithstanding the dis- claimer, the defendant onght to be retained as a party to the suit. A mere witness may avoid answering by a disclaimer ; but it is otherwise with an agent charged by the bill with a personal fraud, for the law does not permit a man to disclaim a liability, ici) A disclaimer is distinct in substance from an answer, although sometimes confounded with it. (&) But it can seldom be put in without an answer; for if a defendant has been made a party by mistake, having had an interest, which he may have parted with, the plaintifi" may require an answer sufficient to ascertain whether that is a fact or not ; and if, in truth, it is so, an. answer seems necessary to enable the complainant to make the proper party, instead of the defendant disclaiming. (S. C. 3 Mylne & Craig, 638. (c) Bpofford vs. Manning, 2 Edw. Ch. R. 358. (/) Coop. Eq. PI. 309, 310; Mitf. Eq. PI. 319, 320; Story's Eq. PI. § 436, 437, 839. (fir) Olasdngton vs. Thwaites, 2 Russ. R. 458-462 ; Oraham vs. Coape, 9 Sim. R. 102 ; S. C. 3 Mylne & Craig, 638 ; Ellsworth vs. Curtis, 10 Paige, Ch. R. 105. (A) Coop. Eq. PI. 310, 311 ; Story's Eq. PI. § 842. (t) Worthiiigton vs. Lee, 2 Bland, 078. ij) Ellmorth vij. Curtis, 10 Paige, Ch. R. 105. THE DEFENSE TO A SUIT. 155 Disclaimer — Antwer and Disclaimer. exceptions and otherwise that can or may be had and taken to the many nntniths, uncertainties and imperfections in the said complainant's bill of complaint contained, for answer thereunto, or unto so much, or such part thereof as is material for this defendant to make answer unto, he answers, and says, that he fully and absolutely disclaims all manner of right, title and interest whatsoever, in and to the legacy of dollars in said bill of complaint mentioned, and all other the estate and effects of the said Thomas Atkins, deceased, in the said bill named, and in and to every part thereof; and this defendant denies all and all manner of unlawful combination and confederacy un- justly charged against him in and by the said bill of complaint, without this that any other matter or thing in said bill con- tained, material or necessary for this defendant to make answer unto, and not herein well and sufficiently answered unto, con- fessed or avoided, traversed or denied, is true ; all which mat- ters and things this defendant is ready to aver, maintain and prove, as this honorable court shall direct, and humbly prays to be hence dismissed, with his reasonable costs and charges, in this behalf most wrongfully sustained. {Add affidavit, No. 58, ante, page llfd.) JVo. GJf,. Ajiswer and disclaimer. ( Commence as in No. 57, ante, page IJfS, to the ^) Answering, says, that he, this defendant, on behalf of E. F., one of the other defendants in the said bill named, did about years ago, contract and agree with G. H. for the purchase of the lands and tenements, etc., now in question, and in possession of L. M., in the said bill also named, and another defendant thereto, which said lands and tenements, etc., at that time were, and for above years before had been in the possession of the said G. H. and J. K., in the said bill also named, or one of them, and for the purchase whereof this defendant, on behalf of the said defendant E. F., agreed to give, and accordingly did give and pay to the said G. H., the sum of dollars ; and in con- sideration thereof the said G. H., and N., his wife, by deed bearing date on, etc., duly conveyed the said lands and tene- ments, etc., to the said E. F., who, thereupon and under and by virtue of such conveyance as this defendant has heard and believes, entered on and became seized of the said lauds and tenements, etc., and continued so seized thereof without any entry or claim made by the complainant, or any other person or persons, until , in the year , when the said E. F., as this defendant has heard and believes, by good and sufficient 156 THE DEFENSE TO A SUIT. Disclaimer — Answer and Disclaimer. conveyance in the law, and in consideration of the sum of ■ dollars, hona fide paid, sold and conveyed the said lands and tenements, etc., to the said defendant, L. M., and his heirs, who thereupon entered thereon, and was and yet is seized and pos- sessed of the same ; and this defendant further answering, says, he does not know, nor can he set forth, as to his belief or other- wise, whether K. S., in the said bill named, was ever seized ot the said premises, or any part thereof; and this defendant further answering, says, he has been advised and believes that the said G. H., and N., his wife, had good right and title to sell and convey the said premises so purchased by this defendant,, on behalf of the said E. F., as aforesaid ; and this defendant fur- ther answering, says, he denies that he ever had any notice of any right or title, the complainant, or any other person, save as aforesaid, had or might, or could claim, of, in or to the said lands and tenements, etc., or any part thereof; and this defend- ant says, that he never had or claimed, or pretended to have, nor has he now, nor does he claim, or pretend to have, any right, title, or interest of, in or to the said premises, or any part thereof ; and this defendant disclaims all right and title of, in and to the same, and every part thereof {Conclude as in I^o. 57^ ante, page IJiS.) CHAPTEK YIII. EXCEPTIONS TO ANSWER. Section 1. Natuee of. 2. exckptions fob insufficiency. 3. Exceptions foe Scandal and Impertinence. SECTION I. NATURE OF. Exceptions to an answer are in the nature of a special demurrer, {a) and are of two kinds — insufficiency, and for scandal and impertinence. The former lies where the answer does not sufficiently respond to the allegations and charges in the bill ; and the latter, where the answer contains scandalous or impertinent matter. If an answer is objectionable, exceptions should be taken to it ; if this is not done, the case should be set down for hearing. If it is obnoxious to exceptions, a further answer will be re- quired ; and, if not filed within the time directed, the bill may be taken as confessed. If a further answer is filed, and shall likewise be adjudged insufficient, the defendant will be required to file a supplemental answer, and pay the costs attendant thereon ; if that shall be adjudged insufficient, the defendant may be proceeded against for a contempt, and the like proceed- ings be had thereon, to enforce the order of the court, as in other cases of contempt, (h) If the complainant elects to abide by his exceptions to an answer, on the ground of insufficiency, which are disallowed, the answer will be taken as true, (c) (a) Story vs. Livingston, 13 Pet. U. S. R. 359 ; Stone vs. Moore, 26 lU. 171, 172. (6) Stone vs. Moore, 26 111. 172 ; Underwood's Stat. 71 ; see Supervisors etc. vs. M. tfc W. R. B. Co. 21 111. 36o ; Derby vs. Qage, 38 111. 27. (c) Prettyman vs. Barnard, 37 111. 105. 158 EXCEPTIONS TO ANSWER. For Insuflaciency — In what Cases — How Taken. SECTION II. EXCEPTIONS FOR mSUFFIOIENCY In what cases they lie. — Exceptions for insufficiency will only be allowed where some material allegation, charge or interrogatory in the bill is not fully answered, {d) Exceptions will lie to an answer, setting up a justification of the acts complained of, but not showing by virtue of what right, title or authority, the defendant performed the acts, {e) Exceptions for insufficiency may be filed after exceptions for impertinence. {/) How taken. — Exceptions to an answer must state verbatim the interrogatories not answered, or the charges in the bill to which the answer was addressed, and the terms of the answer, {g) They must be founded on some allegation, charge or interrog- atory in the bill, and must set forth the particular points wherein the answer is defective, with a prayer that the defendant be required to put in a full and perfect answer to these points ; {h) otherwise, the exceptions may be stricken from the files, on motion, or the objection may be taken when they are noticed for argument, {i) In preparing exceptions, care should be taken that all the points of insufficiency are embodied in the exceptions ; for, by the general rule of practice, a complainant is not allowed to add to or alter exceptions after they are filed ; but this rule bends to circumstances ; upon a clear mistake accounted for, and on special application, leave may be given to amend exceptions, [j) id) Stafford vs. Brown, 4 Paige, Ch. R. 88. {e) Craig vs. The People, 47 111. 487. (/) Patriotic Bank vs. Bank of Washington, 5 Cranch, C. C. R. 602. (g) Hodgson vs. Butter field, 2 Sim. & Stu. R. 236 ; Brooks vs. By am, 1 Story, R. 296 ; Baker vs. Eingsland, 3 Edw. Ch. 138. (A) Buloid vs. Miller, 4 Paige, Ch. R. 473 ; McEeen vs. Meld, 4 Edw. Ch. R. 379 ; West vs. Williams, 1 Md. Ch. Decis. 358. (t) Baker vs. Kingsland, 3 Edw. Ch. 138. (j) Bolder vs. The Bank of England, 10 Ves. 283 ; Partridge vs. Hay- craft, 11 Ves. 570 ; Eq. Draft. 672. EXCEPTIONS TO ANSWER. 159 For Insufficiency — How Taken. When there are two or more defendants, who put in separate and distinct answers, separate exceptions must be filed to each answer ; (k) and when exceptions were taken to the joint an- swer of two defendants, and one of them died, the exceptions were referred as to the answer of the surviving defendant only. (Z) An exception will not be allowed, if, by striking out the portion objected to, other parts of the answer would be ren- dered unmeaning, {tn) If the whole answer to a compound interrogatory, taken together, is a substantial reply to the whole interrogatory, though each separate question therein may not be separately answered, the answer will be held sufiicient. (n) If the bill requires the defendant to view exhibits before putting in his answer, and he neglects to do so, the correct practice is to except to his answer on that ground. () Ante, Chap. Ill, pp. 51-3. (w) 1 Barb. Ch. Pr. 41 ; Coffin vs. Cooper, 6 Ves. 514 ; McConnellva. Hols- bush, 11 111. 61 ; 1 Dan. Ch. Pr. 45 ; Story's Eq. PI. § 862. (x) Langdon vs. Pickering, 19 Maine, 214. (7/) Langdon vs. Ooddard, 3 Story, 13 ; Story's Eq. PI. § 266, 267, 863 ; Conwell vs. Claypool, 8 Blackf. 124; Spencer vs. Van Dusen, 1 Paige, Ch. R. 555. EXCEPTIONS TO ANSWER. 161 For Scandal and Impertinence. stuffed with long recitals, or with unnecessarj digressions, or where a deed is stated, which is not prayed to be set forth, {s) Any matter in the answer which is responsive to the bill, is not impertinent ; (a) and when exceptions to an answer em- braces matter material to the defense, it will be overruled, (h) Exceptions for impertinence or scandal, must point out the objectionable passage with clearness ; and if several parts of an answer are objectionable, each part must be the subject of a separate exception ; (c) and where a whole clause or sentence is impertinent, and depends upon the same principle, the com- plainant cannot except to a part of the clause or sentence only, so as to make what remains unintelligible, or so as to wholly change the meaning of what remains, should the part excepted to be stricken out ; {d) but when pertinent matter is so blended with matter which is impertinent, that it cannot be separated, the whole may be excepted to. {e) An exception, however, for impertinence, must be sustained in toto. {f) When an answer is accompanied by a plea or demurrer to any part of the discovery sought, the complainant, unless he means to admit the validity of the plea or demurrer, cannot except to the answer until the plea or demurrer has been disposed of; {g) and when a plea is ordered to stand for an answer, without any liberty to accept being expressly given, the complainant can only except to the residue of the answer ; (A) and it is said that exceptions will not lie to an answer in aid of a plea, {i) (a) Story's Eq. PI. § 266, 863 ; Wood vs. Mann, 1 Sumner, 506, 508. {a) Mclntyre vs. Trustees of Union College, 6 Paige, Ch. R. 239 ; Lowna- dale vs. City of Portland, 1 Oregon, 381 ; S. G. 1 Deadley, 1. (6) Baleom vs. N. Y. Life Ins. Co. etc. 11 Paige, Cli. 454 ; Hardeman vs. Harris, 7 How. U. S. 726; Saltmarsh vs. Boicer, 22 Ala. 221. (c) Whitmarsh vs. Campbell, 1 Paige, Ch. 645. {d) Franklin vs. Keeler, 4 Paige, Ch. 382 ; Buloid vs. Miller, Id. 473. {e) Norton vs. Woods, 5 Paige, Ch. R. 260. (/) Mclntyre vs. Trustees etc. 6 Paige, Ch. R. 239 ; Van Rensselaer vs. Brice, 4 Paige, Ch. R. 174 ; Eq. Draft. 672 ; Wagstaff vs. Bryan, 1 Russ. & My. 30 ; 1 Barb. Ch. Pr. 203. ig) Siffkin vs. Manning, 9 Paige, Ch. R. 232. {h) Kirby vs. Taylor, 6 Johns. C. R. 242 ; Leaycraft vs. Dempsey, 15 Wend. 83. (i) Leftwich vs. Orne, 1 Freem. Ch. 207. 11 163 EXCEPTIONS TO ANSWER. When to be Filed — Forms of Exceptions. When to he filed. — All exceptions to answers are to be filed within such time as the court may direct, and be argued at such time as the court may appoint, {j ) They must be excepted to before filing his replication, (^•) for by replying, the com- plainant admits the answer to be sufficient; and exceptions- must be disposed of before further proceedings can be taken in, the case. (Z) No. 65. Exceptions to answer for insufficiency. Court. Term, 18—. In Chancery. Exceptions taken by the complainant to the insuffi- cient answer of the defendant, C. D., to the com- plainant's bill of complaint. First. — For that the defendant, C. D., has not to the best and utmost of his knowledge, remembrance, information and belief, answered and set forth whether, etc. {Here set out the ground of exception.) Second. — For that the defendant has not in manner afore- said, answered and set forth whether, etc. {and so on, set out the ground of each exception as the case may require, using the words of the interrogatory or matter not answered.) In all which particulars the complainant excepts to the an- swer of the defendant 0. D., as evasive, imperfect and insuffi- cient ; and prays that the defendant C. D. may be compelled to put in a full and sufficient answer thereto. Sol. for Complainant. No. 66. Exceptions to answer for scandal and impertinence. {Title of cause as in last form.) Exceptions taken by the complainant to the answer of the defendant, C. D., to the bill of complaint in this cause, for scandal and impertinence. First. — For that the said answer is scandalous from and in- cluding the word " he," in the tenth line of the third folio,. {j) Underwood's Stat. 71. (A) 1 Barb. Ch. Pr. 183 ; Coleman vs. Lyne etc. 4 Rand. 454. (0 Clark vs. Tinsley, 4 Rand. 250. EXCEPTIONS TO ANSWER 163 Order Expunging Scandal and Impertinence. down to and including the word " hindrance," in the fourth line of the fourth folio thereof. Second. — For that the said answer is impertinent from and including, etc. {as above, and so on.) In all which particulars the complainant excepts to the said answer of the defendant, C. D., as scandalous or impertinent ; and insists that the same ought to be expunged from the said answer. Sol. for Complainant. JV^o. 67. Order to expunge scandal a/nd impertinence from answer. {Caption, and title of cause, as in No. 79, post.) The answer of the defendant, C. D., having been reported by the master in chancery, to whom the exceptions for scandal and impertinence were referred, to be scandalous in the matter of first, third and fifth exceptions, and impertinent in the matter of the second and fourth, and the said report having become absolute {or approved hy the court^ against the defend- ant, it is ordered that the clerk of this court do expunge from the said answer, such scandalous and impertinent matter, accord- ing to said report. And it is further ordered that the said C. D. pay to the complainant, or his solicitor, the costs of the said exceptions and the proceedings thereon, within days after service of a copy of this order, and of the taxed bill of costs, on him or his solicitor, or that an attachment issue against him. CHAPTER IX. AMENDMENTS TO BILLS. A court will permit amendments to bills, pleas, answers and replications, on such terms as it may deem proper, so that neither party be surprised nor unreasonably delaj^ed thereby ; "and no amendment shall be a cause for a continiiance, unless the party to be affected thereby, or his agent or attorney, shall make affidavit that, in consequence thereof, he is unprepared to proceed to trial of the cause at that term, and that he verily believes that if the cause is continued, such party will be able to make such preparation." {a) A coui-t of equity is liberal in permitting amendments of the pleadings, that complete justice may be done, (b) It looks to the real and substantial merits of the case ; matters of form are never suffered to prejudice the rights of a party. When- ever the complainant discovers a defect in his bill, arising from want of parties, or other reasons, if the cause is not at issue, he may obtain leave, as of course, to amend his bill, (c) Amendments of bills should introduce only such matters as occurred prior to the filing of the bill, and which were omitted b}^ mistake or ignorance of such facts, {d) Matters which have occurred subsequent to the filing of the bill, ought not to be introduced by amendment ; {e) because as the amendments are (a) 111. Stat. ; Underwood's Stat. Const. 73. (b) Marble vs. Bonhotel, 35 111. 240 ; Tanner vs. Hicks, 4 S. & M. R. 294 ; Perkins vs. Hays, Cooke, Tenn. R. 189 ; Wise vs. Ticiss, 54 111. 301. (c) Droullard vs. Baxter, 1 Scam. 191 ; Heacock vs. Durand, 42 111. 230 ; Buckley vs. Corse, Saxon, N. J. 504; Smith vs. Babcock, 3 Sumner, 410; Oarlick vs. Stro7ig, 3 Paige, Ch. R. 440 ; Cock vs. Evans, 9 Terg. R. 287 ; 2 B. Monr. 308; 1 Hill, Ch. R. 217. (d) Burke vs. Srnith, 15 111. 158; Walker vs. Hallett, 1 Ala. N. S. 379; Milner vs. Harewood, 17 Ves. 144. 148 ; Story's Eq. PI. § 336, 337. (e) Barton's Suit in Eq. 120; Story's Eq. PI. § 332-334; Stafford vs. Hewlett, 1 Paige, Ch. R. 200 ; Colclough vs. Evans, 4 Sim. 76 ; Wright vs. Howard, 6 Mad. 106 ; Copen vs. FlesJier, 1 Bond, 440. AMENDMENTS TO BILLS. J.65 When to be Made. held to constitute part of the same record as the original bill, (y) which can only relate to facts as they existed at the time of the filing of the bill ; the introduction of matters of a pos- terior date would render the record incongruous. Matters, therefore, occurring since the filing of the original bill, should be introduced by supplemental bill, and not by amendment, {g) jS^or can a bill be amended by inserting therein facts known to the complainant at the time of filing the bill, unless some excuse is given for the omission, {h) And amendments can only be granted when the bill is defective in parties or in the prayer for relief, or in the omission or mistake of facts and circumstances connected with the substance, but not foi-ining the substance itself, nor repugnant thereto. (^) When to he made. — The court is invested with the discretion to allow amendments to a bill at any stage of the case. {§) They may be made at the hearing to correspond with the proof, without continuing the case, unless it essentially changes the case made by the bill, iji) It not unfrequently happens that the evidence does not sup- port the allegations of a bill precisely in the form in which they are made ; and it subserves none of the purposes of justice to dismiss the bill on the ground of a variance between (/) Yere vs. Olynn, 2 Dick. 441 ; Jupling vs. Stuart, 4 Ves. 619. (g) Stafford vs. Howlett, 1 Paige, Cli. R. 200 ; Archbishop of York vs. Stapleton, 2 Atk. 136 ; 5 Pick. 276 ; Burke vs. Smith, 15 111. 158. (A) Whitmarsh vs. Campbell, 2 Paige, Ch. 67. (i) Verplank vs. The M. Ins. Co. 1 Edw. Ch. 46 ; Lyon vs. Talmadge, 1 Johns. Ch. 184; Rodgers vs. Badgers, 1 Paige, Ch. 424; Strickland vs. Strickland, 12 Sim. 253 ; 1 Barb. Ch. Pr. 207 ; Story's Eq. PI. § 332, 614. (j) Droullard vs. Baxter, 1 Scam. 191; Jefferson Co. vs. Ferguson, 18 111. 33 ; McArtee, vs. Engart, Id. 243 ; Mason vs. Bair, 33 111. 195 ; Jennings vs. Springs, 1 Bailey, Ch. 181 ; 6 Ala. 562 ; Allen vs. Smith, 1 Leigh, R. 331 ; Perkins vs. Hays, Cooke, Tenn. 189 ; Farwell vs. Meyer, 35 111. 51 ; Mar- ble vs. Bonhotel, 35 111. 240 ; Craig vs. TJie People, 47 111. 487. {k) Martin vs. Eversal, 36 111. 222; Metropolitan Bank vs. Godfrey, 2S 111.580; Morgan vs. Smitfi, 11 111. 194; Brown vs. Welsh, 18 111. 347; "i)* Wolf vs. Pratt, 42 111. 198 ; Heicett vs. Dement, 57 111. 500 ; Keale vs. Neale, 9 Wall. U. S. R. 9 ; 4 Paige, Ch. R. 85; 11 Paige, Ch. R. 454 ; 10 Pet. 211 ; 1 Dev. & Bat. Ch. R. 158. 1G6 AMENDMENTS TO BILLS. When to be Made. the pleadings and the proof, when a slight amendment will render the testimony admissible ; {1} nor does the fact that the bill is veritied by affidavit necessarily deprive the complainant of the benelit of an amendment. It is, however, no doubt true, that he is estopped from so amending his bill as to con- tradict facts which he has sworn to as positively true, unless he can clearly show the court that the statement was made in mistake. But when it only enlarges and amplifies the Btate'ment, or states additional facts, there is no objection to allowing the amendment to be made, (m) A mere formal amendment of a bill may be made after the hearing, without opening the case to let in new proofs on the part of the defendant, {n) When an amendment is allowed, after the ease is at isstie, the court will usually impose such terms as it, in its discretion, deems proper, in order that undue advantage cannot be taken of the defendant. (6>) And if a material amendment is permitted at the trial, and the defendant is taken by surprise, a continuance would necessarily be granted, if asked, by the defendant, (p) Where a bill is defective from the omission to join necessary parties as co-complainants, or for the joinder of improper (0 Marble vs. Bonhotel, 35 111. 240 ; Moshier vs. Knox College, 32 111. 163 ; Wise vs. Twiss, 54 111. 303 ; Hutchinson vs. Reed, 1 Hoff. Ch. 320 ; Malin vs. Malin, 2 Johns. Ch. 238 ; 2 Paige, Ch. R. 467 ; Bailey vs. Bennett, 3 Younge & Coll. 459 ; Wilber vs. Collier, 1 Clarke, 315. (m) Marble vs. Bonhotel, 35 111. 240 ; Renwick vs. Wilson, 6 Johns. Ch. R. 81 ; Verplank vs. M. Ins. Co. 1 Edw. Ch. 46 ; North R. Bank vs. Rogers, 8 Paige, Ch. R. 648 ; Hinde, Pr. 25. (n) De Wolf vs. Pratt, 42 111. 198; Walden vs. Bodley, 14 Pet. 156; Evans vs. Billings, 5 Ala. 550 ; Sumrall vs. Ryan, 1 J. J. Marsh. 97 ; Clifton vs. Haig, 4 Dessaus. 330; 2 McCord, Ch. R. 170. (o) Marble vs. Bonhotel, 35 111. 240 ; Beekman vs. Waters, 3 Johns. Ch. R. 410 ; Vertner vs. Griffith, Walker, 414. (p) Moshier vs. Knox College, 32 111. 155 ; Beaumont vs. Boultbee, 5 Ves. 485 ; Cook vs. Martyn, 2 Atk. 3 ; 12 Ves. 215. AMENDMENTS TO BILLS. 167 When not Allowed — Petition for Leave to Amend. parties, it may be amended upon payment of the defendant's costs of the term, (q) While amendments may be made at any stage of the case, as we have seen, it is settled that it must be done at the earliest opportunity, and that any unreasonable or improper delay will deprive the party of the favorable exercise of the discretion of the court, (r) Thus the court will not give a complainant leave to amend his bill, if he has not taken any step in the prosecution of the suit for an undue length of time, as, for instance, for two years after answers put in, he is unable to explain the delay, {s) When amendments will not he allowed. — Where, on de- murrer, a bill has been dismissed, on the merits of the case as stated, for want of equity, the court will not grant leave to amend, {t) And a bill sworn to cannot be amended by ■striking out an allegation, except upon affidavit showing that it was inserted by mistake, and how such mistake occurred, (u) No. 68. Petition for leave to amend hill, after replication. {Title of cause.) To the Honorable , Judge of the Court of the County of , in the State of , In Chancery sitting : The petition of the above-named complainant, respectfully represents unto your honor, that the defendant has put in his (q) Noyes vs. Savyyer, 3 Vt. 160 ; Arendell vs. Blackwell, 1 Dev. Ch. 354 ; Stephens vs. Terrell, 3 Monr. 131 ; Hoofman vs. Marshall, 1 J. J. Marsh. 64 ; Foster vs. Hunt, 3 Bibb, 32 ; Oayle vs. Singleton, 1 Stew. 566 ; Lindley vs. Cravens, 2 Blackf. 426 ; Park vs. Bnllentine, 6 Blackf . 223 ; Hutchinson vs. Reed, 1 Hoff. Ch. R. 316 ; Oorden vs. Holland, 3 Ired. Ch. 362 ; 4 Hen. & M. 475. (r) 1 Barb. Ch. Pr. 209 ; 1 Paige, Ch. 209. («) Altree vs. Horden, 3 Lond. Jurist, 81 ; 1 Barb. Ch. Pr. 209 ; Vertner vs. Griffith, Walker, 414. (t) Lyon vs. Tallmadge, 1 Johns. Ch. R. 184 ; McComas vs. Minor, Walker, 513. {u) North River Bank vs. Rogers, 8 Paige, Ch. R. 648 ; Verplank vs. Mer. Ins. Co. 1 Edw. Ch. R. 46 ; Brown vs. Ricketts, 2 Johns. Ch. R. 425 ; Xathan vs. Wisicail, 2 Ired. 294. 168 AMENDMENTS TO BILLS. Order for Leave to Amend. answer to the complainant's bill ; and the petitioner has tiled his replication thereto, but no witnesses have been examined bv either party. {Let the petition agme with the facts.) That since the tiling of such replication, the petitioner has been advised by his counsel, and believes, that it is essential to his rights in this cause, that the bill should be amended, as shown by the amended bill herewith presented, or, by adding thereto the following statements, etc. {Here insert the matter pro- posed to he introduced) And the petitioner further represents, that he had no knowledge of the facts stated in said proposed amended bill {or, as above set forth), nor was he aware of the necessity of inserting them in his bill, until after said replica- tion was tiled. The petitioner, therefore, prays that he may be at liberty to withdraw his said replication, and amend his bill by adding the facts referred to. A. B. {Add jurat) Where the petition is for leave to amend a sw^orn bill, or a bill after replication is tiled, the matter proposed as an amendment should be annexed to the petition, and the truth thereof should be sworn to in addition to the usual jurat upon the petition, (-y) Where the petition is verified by the complainant's solicitor, reasons should be shown why the same would not be sworn to by the complainants, or some of them. {^) No. 69. Order for leave to amend hill, after a general demurrer. {Caption and title of cause as in No. 79, post.) The defendant, C. D., having put in a general demurrer to the bill of complaint" in this cause, for want of equity, on mo- tion of Mr. , of counsel for the complainant, it is ordered that the complainant have leave to amend his bill as he may be advised, upon payment of the costs to be taxed. It is fur- ther ordered that such amendment be tiled with the clerk of this court within days from this date. (d) Rogers vs. De Forrent, 3 Edw. Ch. R. 171 ; Rogers vs. Rogers, 1 Paige, Ch. R. 424 ; Whitmarsh vs. Campbell, 2 Paige, Ch. R. 67 ; Walsh vs. Smythe, 3 Bland, 9 ; Everett vs. Winn, 1 S. & M. Ch. R. 67 ; Verplank vs. Mer. Ins. Co. 1 Edw. Ch. 46 ; West vs. Coke, 1 Murphy, 191. {w) Verplank vs. Mer. Ins. Co. 1 Edw. Ch. R. 46. AMENDMENTS TO BILLS. 169 Form of an Amendment to a Bill. No. 70. Amendment to a hiU. {Title of cause.) Amendment to the bill of complaint in this cause, made pursuant to an order of the court, entered on the day of , A. D. 18 — . First. — In the third line of the second folio of the bill, after the word " and," interline, " to wit, on or about the first day of January, A. D. 1870." Second. — After the word " time," in the tenth line of the sixth folio, insert the words following. {Here insert the addi- tional matter ])ro]jos€d.) Third. — Strike out the words " did convey," in the fourth line of the eleventh folio, and insert in lieu thereof, the follow- ing : " was about to convey." Fourth. — Add the name of " E. F. of, etc." as a defendant, in the second line of the fourteenth folio, after the word " and." Sol. for the Gonvplainant An amended bill should state no more of the original bill than is necessary to introduce, and make intelligible, the new matter; nor should such amendment be incorporated in the old bill, but be by separate bill, {x) Amendments to a bill should not be made by interlineations and erasures in the original bill, but by filing the same on a separate paper, {y) The practice of amending pleadings by erasures and interlineations ought not to be tolerated by the courts. A paper thus disfigured will be stricken from the files, {z) (x) Pierce vs. West, 3 Wash. C. C. R. 354 ; Bennington Iron Co. vs. Camp- Mi, 2 Paige, Ch. R. 159 ; Runt vs. Holland, 3 Paige, Ch. R. 78 ; Stanberry vs. Moore, 56 111. 472. (y) Walsh vs. Smythe, 8 Bland, 9 ; Bemein vs. Lovelass, Cam. & Nor. 521 ; Hinde, Pr. 22. (z) Stansberry vs. Moore, 56 111. 472. CHAPTER X. REPLICATION. Nature of. — After the defendant has put in his answer, the compLainant is to determine whether the answer is sufficient, and whether he will amend the bill. If he neither excepts to the answer for insufficiency, nor amends his bill, the usual step next taken by him is to file a replication. This replication, according to the present practice, consists of a general averment only, of the truth and sufficiency of the complainant's bill, and as general a denial of the same properties in the answer of the defendant ; but formerly, if the defendant's answer stated new facts, in opposition to those alleged in the bill, the complainant was accustomed to reply by a special statement of other facts, not before charged. This produced a rejoinder by the defend- ant, asserting the truth and sufficiency of his answer, and alleging the contrary of the complainant's replication. A sur- rejoinder frequently followed the rejoinder, and a rebutter the surrejoinder, and so on as long as new facts were set forth by one party and denied by the other. But the expense, incon- venience and delay attending these multifarious pleadings on •each side, gave rise to an alteration of the practice, {a) Special replications are now superseded by the general repli- cation, wdiich merely puts in issue the truth of the answer. Amendments of the bill have been substituted in the place of special replications, and a defendant may now do in an amend- ment of a bill, what he formerly could by a special replication. (5) Within what time to he filed. — By the 66th rule of the Revised Rules of Practice for the Courts of Equity of the United States, of 1870, the complainant is required to file the general replication to the answer, on or before the next succeeding (a) Barton's Suit in Eq. 124 ; Story's Eq. PI. 5^ 877, 878. (&) Tarleton va. Veites, 1 Gilm. 470; Schaffer vs. Weed.S Gilm. 511 ; White vs. Morrison, 11 111. 861. REPLICATION. 171 When to be Filed — Issue Made. rule-day thereafter. If the complainant omits to file such replication within the prescribed period, the defendant will be entitled to an order, as of course, for a dismissal of the suit ; and the suit shall thereupon stand dismissed, unless the court, or a judge thereof, shall, upon motion for cause shown, allow a replication to be filed 7iunG])ro tunc, the complainant submitting to speed the cause, and to such other terms as may be directed. The practice in the different states as to the time in which a replication may be filed, varies. In Illinois, the statute pro- vides, that the replication shall be filed in four days after the complainant, or his attorney, shall be served with notice of answer filed, {c) The court will sometimes permit a replica- tion to be filed, in furtherance of justice, after a case is called for hearing, when it has been omitted by accident or mistake, {d) Where the defendant treats the cause as at issue, joins in taking depositions, and consents to set the cause down for hearing on the bill, answer, exhibits, and depositions, and the cause is heard accordingly, he cannot, on error, insist that the proofs shall not be considered, {e) "Where a replication has been filed, it will be presumed to have been filed in season, until the contrary is proved, {f) Issue made. — After replication is filed, the cause is at issue, and is ready for hearing. Where the parties proceed to a hearing on the bill and answer, without a replication, the answer will be taken as true, so far as it is responsive to the allegations of the bill ; and no &v\- dence can be received to contradict it, except matters of record to which the answer refers, and is provable by such record. (^) (c) Laws of 111. 1872, p. 333 ; Underwood's Stat. Const. 71. {d) Moseley, 926 ; Lord Red. 207 ; Armistead vs. Bozman, 1 Ired. Ch. R. 117; Sea Insurance Go. vs. Day, 9 Paige, Ch. R. 247. [e) Marpel vs. Scott, 41 111. 50 ; Demaree vs. Driskill, 8 Blackf. 315. (/) Lyon vs. Tallmadge, 14 Johns. R. 501. {g) Underwood's Stat. Const. 71 ; Laws of 111. 1872, p. 333 ; Derby vs. Gage, 38 111. 27 ; Chambers vs. Roice, 36 111. 171 ; Farrell vs. McKee, Id. 226 ; Beams vs. Denham, 2 Scam. 58 ; De Wolf vs. Long, 2 Gilm. 679 ; Payne vs. Frazier, 4 Scam. 55 ; Trout vs. Emmons, 29 111. 433 ; Nelson vs. Pincgar, 30 111. 473 ; Mason vs. McQirr, 28 111. 323 ; Dooleyvs. Stipp, 26 111. 86. 172 REPLICATION. Effect of— Withdrawing — Form of General Replication. But if the case is heard upon the pleadings and evidence, the replication will be deemed as waived. (A) Effect of filing.— U the complainant files a replication to the answer, after he is apprised of the necessity of an amendment of his bill, he precludes himself from making such amend- ment. (^) Withdrawing. — If the necessity for an amendment arises after the filing of the replication, the complainant should make a special application to the court for leave to withdraw the replication, for the purpose of amending, {j) Upon which application he must satisfy the court, by affidavit, that the matter of the proposed amendment is material, and could not, with reasonable diligence, have been sooner introduced into the bill, ik) But this practice does not apply to amendments by merely adding parties, after replication. (Z) No. 71. General replication. In the Court. A. B.) Term, 18— . vs. \ In Chancery. C. D. ) The replication of A. B., complainant, to the answer of C. D., defendant. This repliant saving and reserving unto himself all and all manner of advantage of exception to the manifold insufficien- cies of the said answer, for replication thereunto, says : that he will aver and prove his said bill to be true, certain and suffi- cient in the law to be answered unto ; and that the said answer of the defendant is uncertain, untrue and insufficient to be replied unto by tiiis repliant ; without this, that any other matter or thing whatsoever in the said answer contained {h) Jameson vs. Conway, 5 Gilm. 227, 230 ; Webb vs. The Alton etc. 5- Gilm. 223 ; Stark vs. Hillibut, 19 111. 344 ; Marpel vs. Scott, 41 111. 50 ; i>e- maree vs. Driskill, 3 Blackf. 115 ; Brooks vs. Mead, Walk. Ch. 389. (t) Vermilyea vs. Odell, 4 Paige, Ch. R. 121. ( j) 1 Dan. Ch. Pr. 546 ; 2 lb. 389 ; Coop. Eq. PI. 333 ; 1 Barb, Ch. Pr. 253 {k) Id., Id. (Z) Brattle vs. Waterman, 4 Sim. 125, REPLICATION. 173 Form of General Replication. material, or effectual in law to be replied unto, confessed and avoided, traversed or denied, is true ; all which matters and things this repliant is and will be ready to aver and prove, as this honorable court shall direct, and humbly prays as in and by his said bill he has already prayed. Sol. for Convplainant. CHAPTER XI. TESTIMONY. Section 1. Production of Books and Writings. 2. Depositions. 3. Evidence taken by Master in Chancery, or Special Commission. 4. Oral Testimony. As soon as the cause is at issue, the parties may proceed to take testimony for the pui'pose of establishing their respective cases. If no replication is filed, as we have seen in the last chapter, the answer will be taken as true so far as it is respon- sive to the bill, and the defendant will need no proof; and the complainant, not having replied, cannot offer any. The space allotted to this work precludes our going into an examination of the subject of evidence, any further than to point out the methods of taking the testimony of witnesses, to be read on the hearing. And upon this we will necessarily be confined to the modes as they exist in Illinois. Parties may take evidence before the Master in Chancery, or by depositions, or introduce oral testimony on the hearing, {a) SECTION I. PRODUCTION or BOOKS AND WRITINGS. " The several courts shall have power, in any action pending before them, upon motion, and good and sufficient cause shown, and reasonable notice thereof given, to require the parties, or either of them, to produce books or writings in their possession or power, which contain evidence pertinent to the issue." (5) If a party refuses to produce books and papers, his opponent (a) Orob vs. Cushman, 45 111. 119. (6) 2 Gross' Stat. ; Underwood's Stat. 148. TESTIMONY. 175. Production of Books, etc. — Petition for, etc. may give secondary or parol proof of their contents, if they are sliown to be in the possession of the opposite party, (c) The notice should be given seasonably, in order to give the party reasonable time to produce the original, {d) A certified copy of a deed from the record can be used, on the proper preliminary proof being made, without notice to the opposite party to produce the original, (e) For a form of notice to produce books or documents, see Puterbaugh's Com. Law PL and Pr. pp. 771-772. Documents, etc., in hcmds of third persons. — If documents, the production of which is desired, are in the possession of one who is not a party to the suit, he may be compelled by a sub- poena duces tecum to produce them; and if the suhpcena is not obeyed, he will be punished for contempt, on proof by affi- davit that the documents are in his custody. {/) iVo. 72. Petition for jproduction and inspection of papers, etc. In the Court. A. B. 1 Term, 18—. vs. \ In Chancery. CD.) To the Honorable , Judge of the Court of the County of , in tlie State of . In Chancery sitting : The petition of the above-named complainant respectfully represents : That the answer of the defendant, C. D., has been put in in this cause, and a replication thereto has been filed, but no testimony has been taken in tlie cause, nor has the same been noticed for hearing; That by the answer of the defendant, he admits that he is in possession, or has under his control, divers books, deeds, letters, accounts, and other papers relating to the matters at issue in this cause. And your petitioner further represents that he has a direct and immedi- ate interest in the said books, deeds and other papers, and that (c) Rector vs. Rector, 3 Qilm. 105 ; Prettymar. vs. Wolston, 34 111. 190. (d) Codt/ys.Sough,20m.4S; Warner vs. Campbell, 26 111. 282; BushneS, vs. Bishop HUl Colony, 28 111. 204. (e) Bowman vs. Wettig, 39 111. 416 ; Deininger vs. McConneU, 41 111. 228. (/) 3 Greenl. Ev. § 305 ; also see 1 Id. § 558, 559. 176 TESTIMONY. Order for Production of Books, etc. — Depositions. an inspection thereof is necessary to enable him to examine witnesses in this cause, and to prepare such cause for hearing. Your petitioner, therefore, prays that the defendant may be ordered to produce to, and leave with, the clerk of this court the books, deeds, and other papers above mentioned ; and that your petitioner, his solicitor, agent or counsel, may be at liberty to inspect and peruse the same, and to take copies thereof, or extracts therefrom, as he may be advised. {Add affidavit.) A. B. iVo. 73. Order for production of hooks and jpapers. {Caption, and title of cause as in No. 79, post.) On reading and filing the petition of the complainant in this cause duly verified, and, on motion of Mr. , solicitor for the complainant, and Mr. , solicitor for the defendant, being heard in opposition thereto, it is ordered that the de- fendant C. D. do within days from the date of this order, produce to, and leave with the clerk of this court the books, deeds, letters, accounts, and other papers relating to the matters at issue in this cause, which are admitted by the defendant's answer to be in his possession or imder his control ; and that the complainant, his solicitor, agent or counsel, may be at liberty to inspect and peruse the same, and to take copies thereof, or extracts therefrom, as he may be adyised, at his own expense ; but that the defendant be at liberty to seal up such parts of the said books, deeds, etc., as he shall make oath, do not, in any manner, relate to the matters in controversy in this suit. SECTION II. DEPOSmONS. For forms of notices and interrogatories to be used in taking depositions, see Puterbaugh's Com. Law PI. and Pr. pp. 775- 785. Depositions of resident witnesses. — The statute of Illinois provides, that " When the testimony of any witness, residing or being within this state, shall be necessary in any suit in chancery in this state, the party wishing to use the same may cause the deposition of such witness to be taken before any TESTIMONY. 177 Depositions — Non-resident Witnesses, etc. judge, justice of the peace, clerk of a court, master in chancery, or notary public, without a commission or filing interrogatories for such purpose, or giving to the adverse party or liis attorney ten days' notice of the time and place of taking the same, and one day in addition thereto (Sundays inclusive) for every fifty miles travel from the place of holding the court to the place where such deposition is to be taken. If the party entitled to notice and his attorney resides in the county where the deposition is to be taken, five days' notice shall be suflicient." (^) Where a party files a bill he may, before issue joined, take In Chancery. C. D. et al. ) Objections taken by the above-named defendants to the report of the Master in Chancery, to whom this cause stands referred to take proofs. First. — For that the said master has, etc. {Hei'e state the ground of ohjection.) Second. — For that, etc. {and so on.) In all which particulars the said defendants object to the said report, and submit that the same ought to be varied and altered. , Sol. for Defendants. If the master adheres to his report, he returns it into court, where the party objecting may file his exceptions. No. 77. Exceptions to master's report. In the Court. A. B. et al. ) Term, 18—. vs. > In Chancery. C. D. et al. ) Exceptions taken by the above-named defendants to the report of the Master in Chancery, to whom this cause was referred to take proof, etc., by an order made herein on, etc., and which report bears date on, etc. First exception. — For that the said master has, etc. {Here insert the ground of exception). Second exception. — For that, etc. {and so on.) Wherefore the said defendants do except to the said report, and appeals therefrom to the judgment of this court. , Sol. for Defendants. The report of a master is received as true where no excep- tions are taken, and the exceptions are to be regarded so far only as they are supported by the special statement of the master, or by evidence which ought to be brought before the 186 TESTIMONY. Exceptions to Master's Report — Oral Testimony. court by a reference to the particular testimony on which the exceptor relies, {jj) Exceptions to a master's report must state article by article those parts of the report which are intended to be excepted to ; the exceptions are in the nature of a special demurrer, and the party objecting must point out the error, otherwise the part not excepted to will be taken as admitted, {g) No exceptions can be taken to the report of a master unless the objection be made before him, previously to his signing his report. (/•) SECTION IV. OKAL TESTIMONY. The statute of Illinois provides, that " on the trial of every suit in chancery, oral testimony shall be taken when desired by either party." {s) Independent of this statute it was held, that the court has no right to prevent a party from offering oral testimony upon the trial of a case in chancery, {t) And an order of court made during the progress of the cause, that a party shall close his proof by a day named, can- not affect the right of such party to introduce oral testimony on the hearing, {it) This rule, however, only affects the mode of taking testi mon}', and does not dispense with the necessity of the testi- mony appearing of record. The testimony may be preserved {p) Harding V3. Handy, 11 Wheat. 103. (q) Story vs. Livingston, 13 Pet. U. S. R. 359 ; Dexter vs. Arnold, 2 Sum- ner, 108 ; Wilkes vs. Rogers, 6 Johns. Ch. R. 566. (r) MetJiodist Church vs. Jaques, 3 Johns. Ch. R. 77 ; Becktcith vs. Butler, 1 Wash. Va. 224; Foote vs. Van Ranst, 1 Hill, Ch. R. 185; Levyis vs. Levris, Minor, 35. («) 2 Gross' Stat. ; Underwood's Stat. 154. (<) Owem vs. Ranstead, 22 111. 161. (u) Maher vs. Bull, 89 111. 532; Orob vs. Cushman, 45 111. 119. TESTIMONY. 187 Oral Testimony at Hearing. in the record by a statement in the decree, or a certificate of the judge, or in the master's report, (v) The statute referred to does not apply to mechanic's lien cases, {w) where exceptions to evidence must be taken and preserved as in common law cases, {x) (v) White vs. Morrison, 11 111. 365 ; Ward vs. Owens, 12 111. 283 ; McMls vs. Thornton, 16 111. 113 ; Moore vs. Trustees, 19 111. 83 ; Cooley vs. Scarlett, 38 111. 316; Quigley vs. Roberts, 4A 111. 503; Martin vs. Hargardine, 46 111. 322; WiUhite vs. Pearce, 47 111. 413 ; Preston vs. Hodgen, 50 111. 57 ; Bree vs. Bree, 51 111. 367 ; Walker vs. Gary, 53 111. 470 ; Forth vs. Town of Xenia, 54 m. 210. (w) Kidder vs. Aholtz, 36 111. 481. (x) Board etc. vs. Greenbaum, 39 111. 615. CHAPTER XII. FEIGNED ISSUES TRIALS UY JURIES. Nature of. — A feigned issue is an issue brought by consent of the parties, or the direction of a court of equity, or such courts as possess equitable powers, to determine before a jury some disputed matter of fact, which the court has not the power, or is unwilling to decide, (a?) There are two methods of trying questions of fact by a jury, on issues joined in chancery, viz. : by feigned issues awarded under the old practice, and by issues of facts under the- statute, {y) It is discretionary with the chancellor to require issues of fact to be tried by a jury at any time before decree, (s) In chancery, the submission of an entire case to a jury is contrary to the practice, and should be discouraged, even when the parties desire such a trial. As said by the Supreme Court of Illinois, in the case of Milk vs. Moore, 39 111. p. 587^ " Such practice is unknown to the courts of equity, both in Great Britain and in this country. In this court, no question is ever submitted to a jury, except on a feigned issue, which, when the common law and equity jurisdiction is vested in difi'erent persons, is sent to a court of law for trial ; and when the common law judge and the chancellor is the same person, the issue is sent to the common law side of the docket, and the verdict, when found, is certified to the chancellor, if not in fact, it is so in theory. In forming a feigned issue, there is a formal declaration filed, together with other pleadings, making- the issue of fact to be tried," {a) A feigned issue may be ordered to determine whether a deed (a;) Bouv. L. D. 516 ; 3 Black. Com. 452 ; Bouv. Inst. Index, h. t. (y) Milk \g. Moore, 39 111. 588. (z) Russell vs. Payne, 45 111. 350. (a) See also Pankey vs. Raum, 51 111. 88. FEIGNED ISSUES — TRIAL BY JURIES. 189 When Ordered — Nature of. was intended as a mortgage ; (h) or was made to defraud credit- ors ; ((?) or whether fraud existed in the consideration of a mort- gage, (d) It is also proper where the defendant denies the exe- cution of the note described in the mortgage, and the evidence is contradictory ; {e) or where a deed is souglit to be avoided for insanity of the grantor; {/) and, also, to test heirship, (ff) A feigned issue need not include all the points involved in the suit, (h) Where the evidence is contradictory, the veracity of the wit- nesses involved, and where the manner, intelligence, and rela- tion of witnesses to a case, must have their proper weight, it is highly desirable to have the issue tried by a jury, (i) And in all proceedings in chanceiy, involving questions of insanity, it is the duty of the court to direct that an issue be formed and tried by a jury, (j) " The chancellor is the sole judge of the evidence and its weight ; and, even when he directs an issue of fact to be tried by a jury, to inform his conscience, he may adopt the verdict of the jury, or he may disregard it, and render a decree against their finding, or he may grant a new trial, as he may believe justice demands. In our courts of equity, the chancellor being also the common law judge, he necessarily hears all of the evi- dence upon which the jury acts, and if satisfied the jury have found correctly, it would be his duty to adopt their finding; but, if dissatisfied, it would be equally his duty to disregard the verdict, and proceed with the cause, in such manner as to do complete justice between the parties." {k) (6) WUliams vs. BisJiop, 15 III. 108. (c) Waddams vs. Humphrey, 23 111. 661. (d) Milk vs. Moore, 39 111. 587. {e) Russell vs. Payne, 45 111. 350. (/) Myatt YS.Walker, 44 111.485. (g) McConnell vs. Smith, 27 111. 334. (7t) Pankey vs. Raum, 51 111. 88. (i) Russell vs. Paine, 45 111. 350. [j] Myatt vs. Walker, 44 111. 485 ; Pankey vs. Raxtm, 51 111. 88. (k) Milk vs. Moore, 39 111. 588 ; Williams vs. Bishop, 15 111. 553 ; Siberi vs. McAvoy, Id. 108; Burt vs. Rynex, 48 Mo. 309 ; see also Austin vs. Bain- ter, 50 III. 308 ; Lowe vs. Tragnor, 6 Caldw. Tenn. R. 633. 190 FEIGNED ISSUES — TEIAL BY JUKIES. Order Directing au Issue for a Jury. The court may award a new trial, not only to satisfy its con- science, but to correct any errors in its instructions to the jury, or any other errors on the trial. {1} And a court of chancery is more liberal in granting new trials on feigned issues than courts at law. (m) An appeal or writ of error, will not lie to set aside a verdict on feigned issues, until the chancery case is disposed of, and a joinder in error will be of no avail, {n) It would tend to promote justice, and aid the court in its decree, if the jury were instructed to find on each issue raised by the pleadings and proof, instead of finding a general verdict, {o) The statute of Illinois provides that, " the court may in its discretion, direct an issue or issues to be tried by a jury, when- ever it shall be judged necessary in any cause in equity, pending therein. In all other causes in equity, the mode of trial shall be the same as has been heretofore practiced in courts of chancery." Under this statute, it has been the practice to make an issue without using the common law forms of pleading. But the issue in chancery, if there be more than one, should be distinct and explicit, presenting in each a single question, so clearlj' that it could not but be understood by the jury, and their verdict should be responsive to each, (p) 2^0. 78. Order directing an issue of fact to he tried hy ajv/ry, {fjarption and title of cause as in No. 79., post, j'^a^e 198.) This cause came on to be heard upon the pleadings filed and the proofs taken therein, and the court having heard the argu- ments of the solicitors for the respective parties : It is ordered that the following issues of fact be made and tried at the (0 Williams vs. Bishop, 15 111. 555 ; Rigg vs. Wilton, 13 111. 15 ; Milk vs. Moore, 39 111. 588. (m) Waddama vs. Humphrey, 22 111. 661. («.) Woodside vs. Woodside, 21 111. 207 ; Brockett vs. Brockett, 8 How. U. e. R. 691. ip) Von Olahn vs. Von Olnhn, 46 111. 134. (p) Milk vs. Moore, 39 111. 588. FEIGNED ISSUES — TRIAL BY JURIES. 191 Drawing and Settling Issue. term of court, to be held in the county of , or as soon thereafter as the same can be heard, to wit : 1. Was the deed of conveyance mentioned in the bill of complaint, to wit, etc., {Here describe the deed) obtained by fraud of the defendant ? 2. Was, etc. {Here state am,y other fact to he tried hy the ju7'y, and so on) The course of proceeding upon the trial of an issue is gene- rally the same as that adopted in ordinary trials at law ; except where the court of chancery has given some special directions upon the subject, {q) Drawing up and settling a feigned issue. — Under the modern practice as it exists in Illinois, a resort to the old practice of ordering a feigned issue, will seldom be had. If it is considered desirable to form a feigned issue, instead of an issue of facts under the statute, forms of such orders, declara- tions and pleas may be found in 2 Barbour's Chancery Prac- tice, pp. 483-4:86, and 2 Chitty's Pleadings, p. 236. Upon the granting of an order for a feigned issue, a draft of the pleadings in an action of assumpsit is prepared by the complainant's solicitor, or by the solicitor of whichever party is ordered by the court to prepare it. In the declaration the pretended plaintiff declares that he laid a wager of a certain amount, with the defendant, on the questions in dispute ; and avers that the fact is as he contended it was, and that he there- fore brings his suit for the amount of the wager. The defendant by his plea admits the wager, but avers the contrary to be the fact. Whereupon the issue is joined which is ordered to be tried, (r) {q) 2 Dan. Ch. Pr. 742 ; 1 Barb. Ch. Pr. 451. (r) 1 Barb. Ch. Pr. 463 ; 2 Smith, Ch. 80. CHAPTER XIII. HEARING. The statute of Illinois requires the clerks of the courts to keep a docket of all the causes pending in their respective courts, in which the people's cases are to be first set down, after which shall be set down all cases in law, in order, accord- ing to the date of their commencement, and lastly the suits in chancery. All cases shall be tried or otherwise disposed of. in the order they are placed on the docket, unless the court, for good and sufficient cause, shall otherwise direct, (a) Course of proceedings. — The party having the affirmative of the issues has the opening and closing of the case. Where the cause is heard upon the pleadings and proofs, the com- plainant opens. The order of proceeding is generally as follows : The complainant's bill is first read, or the substance of it briefly stated; the defendant's answer is then read or stated in like manner ; after which the case and the matters in issue are stated, with the points of equity arising therefrom ; and then the testimony and such parts of the defendant's answer as are considered essential, are read by the complain- ant's solicitor. After the complainant's evidence has been read, the defendant's evidence is introduced ; to which the complainant may offer rebutting testimony. The argument is then opened by the solicitor for the complainant. The defend- ant's solicitor is then heard in answer; to which the complain- ant's solicitor may reply, and concludes the argument. On the hearing on bill, cross-bill, answers and depositions, both cases being heard together, and both parties having material allegations to sustain, the complainant in the original bill is entitled to the opening and the close, (h) (a) 2 Gross' Stat. ; Underwood's Stat. 85. (b) Murphy vs. Stultz, Saxton, 560. HEARING. 193 Course of Proceeding — Original and Cross-Bill Heard Together. In a bill filed to enjoin an action of ejectment and for specific performance, the complainant's counsel is entitled to the opening and closing, (c) When there are two defendants, who set up adverse claims, the course of practice is for the complainant to open ; for the defendant who sets up a claim against the other then to go on, and for the other defendant to answer ; and there is no reply between the defendants, {d) unless specially directed by the court, {e) Upon a plea or demurrer the defendant holds the affirmative, and opens the argument ; and upon appeal, the opening argu- ment of the appellant's counsel is first heard. Where the cause is heard upon exceptions, to an answer, the complainant begins. If upon exceptions to a master's report, the party excepting opens the argument. But where both parties except, the complainant's counsel is first heard upon his exceptions, -and then the defendant's counsel answers him, and opens the argument upon his own exceptions. (/") Hearing case out of its order. — Although it is a general rule that causes come on to be heard, according as they stand upon the docket, yet they are sometimes heard out of their ordinary course, on sufficient cause being made to appeal. (^) Original and cross-bill heard together. — The original bill and cross-bill should be heard together, [h) The court will also order depositions in a cross-suit to be read, on the account directed in the original suit, though the cross-bill is dis- missed, {i) And a cross-bill for discovery, taken pro confesso, will be ordered, on motion, to be read on the hearing of the original cause, {j) (c) Duman vs. Pepper, 43 Geo. 361. {d) Walton vs. Van Mater, Halst. Dig. 175. (e) 1 Barb. Ch. Pr. 317. (/) 1 Barb. Ch. Pr. 317, 318. {g) Hoyle vs. Livesey, 1 Mer. 381. {h) Beauchamp vs. Putnam, 34 111. 378. (i) Lubiere vs. Oenou, 2 Ves. 579. 0") Gorey vs. Oertaken, 2 Mad. 43 ; 1 Barb. Ch. Pr. 320. 13 194 HEARING. Effect of Former Orders on the Hearing. In cross-suits, and also in other suits, where there are two causes between the same parties, involving the same points in dispute, and where it is material that both causes should be heard together, if both are set down for hearing, but stand at a distance from each other, the court will permit the cause which stands last, to be advanced, or that which stands first to be adjourned, so that both may come on at the same time ; and likewise, if it is necessary, the depositions taken in one cause to be read in the other — an order for that purpose having been previously obtained, (k) It is in the discretion of the court to postpone the hearing on the original bill, until the cross-bill is ready for hearing, that both may be heard together ; but this will not be done where there is unnecessary or affected delay in preparing the cross-bill, (l) Effect of former orders on the hearing. — On a final hearing all previously rendered decretal orders are before the court, and may be altered, modified, . or vacated, as justice may require, {m) {k) Nci'il vs. Johnson, 2 Vern. 447 ; Wilford vs. Beaseley, 3 Atk. 501,503 ; Prac. Reg. 172 ; 1 Barb. Ch. Pr. 320. {I) McConnies vs. Moseley, 4 Call, 360 ; Beauchamp vs. Putnam, 34 111. 378. (m) Oibaon vs. Reese, 50 111. 383 CHAPTER XIV. DECREES AND DECRETAL ORDERS. Section 1. Nature, Uses and Kinds of Decrees. 2. Forms op Decrees. SECTION I. NATURE, USES AND KINDS OF DECREES. A decree is the judgment or sentence of a court of equity, pronounced after the hearing or submission of tlie cause. It may be interlocutory or final. The former is properly an order or decree pronounced for the purpose of ascertaining matters of fact or law, preparatory to a final decree. It very seldom hap- pens that the first decree can be final or conclude the cause. The latter settles the matter in dispute, and the final decree has the same efi"ect as a judgment at law. (a) It is a settled rule, that a decree must conform to the allega- tions in the. pleadings as well as to the proof in the cause ; (h) and a complainant cannot obtain a decree for more than he has asked in his bill, (c) Interlocutory degree. — Judgment upon a demurrer in favor of the complainant, or against a plea, is not final but interlocu- (a) 2 Mad. Ch. 462 ; Barton's Suit in Eq. 147. (6) WoodxDOTth vs. Huntoon, 40 111. 132; Means vs. Means, '^2 111.50; Hall vs. Towne, 45 111. 493 ; Crocket vs. Lee, 7 Wheat. 522 ; Ringgold vs. Ring- gold, 1 Har. & G. 11 ; Pigg vs. Corder, 12 Leigh, 69 ; Corneal vs. Banks, 10 Wheat. 181; Stuart vs. M. & T. Bank, 18 Johns. 496; Cloud vs.Whitman, 2 Har. 401 ; Smith vs. Smith, 1 Ired. Ch. 88 ; Bozman vs. Droughan, 3 Stew. 243 : LangdouYs. Roane, 6 Ala. 518 ; Morgan vs. Crahh, 3 Porter, 470 ; Maury vs Mason, 8 Porter, 211 ; Dickinson vs. Morgan, 8 Dana, 130 ; Bougher va. Miller, Wright, 328 ; Handhj vs. Young, 4 Bibb, 376 ; Del. <& H. Canal Co. vs. Penn. Canal Co. 21 Penn. 131. (c) Simons vs. Quthrie, 9 Cranch, 19 ; Hall vs. Tovrnie, 45 III. 493. 196 DECREES AND DECRETAL ORDERS. Interlocutory Decree — Final Decree. tory ; {d) for a decree is not fiual unless all the material facts are ascertained at the time ; and a decree referring the cause to a master to ascertain such facts is interlocutory only ; (e) in like manner, where the further action of the court is necessary to give completely the relief contemplated by the court, there the decree upon which the question arises, is to be regarded not as final but interlocutory. {/) A decree deciding the rights of the parties as to the matter in controversy, and awarding costs, is still but interlocutory, if it be referred to commissioners to execute it, and the court has afterward to determine matters on the report ; (g) and a decree ordering an act to be done before the decree can be effectual, is interlocutory, (A) Wliere money is directed to be paid into court, or property to be delivered to a receiver, or to a new trustee, or where any- thing is to be done, which may be the subject of exception or appeal, the decree is not final, but interlocutory only ; (/) and an order directing an issue at law, is interlocutory merely, and may be set aside at a subsequent term, (j) A decree, in which the party in whose favor it is made, cannot obtain the benefit thereof, without further hearing before the court, is interlocutory, (k) Ordering bonds in dispute to be brought into court to await its further order, and that the several claimants interplead, is an interlocutory, not a final decree. {1} Final decree. — A decree which finally disposes of the subject of litigation, so far as the court is concerned, reserving no fur- ther questions or directions for the future judgment of the (d) Warner vs. Tomlinson, 1 Root, 201 ; Oray vs. Hays, 7 Humph. 588 ; Knapp vs. Marshall, 26 111. 63. (e) Jaques vs. M. E. Church, 17 Johns. 548. (/) Cocke vs. OUpin, 1 Rob. Va. 20. (^r) Mnckey vs. Bell, 2 Munf . 528 ; see also Price vs. Neshit, 1 Hill, Ch. 445. (A) Uays vs. Mays, 1. J. J. Marsh. 497. (t) Bellamy vs. Bellamy, 4 Florida, 242. (;•) Dabhs vs. Dabbs, 27 Ala. 646. {k) Johnson vs. Everett, 9 Paige, Ch. R. 636 {I) Thomas vs. County of Morgan, 39 111. 497. DECREES AND DECRETAL ORDERS. 197 Final Decrees. court, is a final decree, though some further proceedings are to be had before a master, exceptions to whose report may bring the matter again before the court, (w?) such as the appointment of a commissioner to sell a part of the subject of controversy, and account for, and pay the proceeds to the parties, with liberty to them to apply to the court to add other, or substitute new commissioners, or for a partition of the subject directed to be sold in kind ; (n) or a reference to a master to ascertain the amount of the debt, (o) A decree of foreclosure and sale of the premises, in a bill to foreclose a mortgage, is a final decree. And a sale under the decree, after the death of a defendant, without a revival of the suit, is not an error for which the decree will be reversed on a bill of review, [p) A decree that the defendants should assign a certificate of lands to the complainant, provided he should, before a given day, and after the tender of the assignment, pay a certain sum of money to them, is a final decree. (^) AYhere a claim in the original bill becomes unimportant before decree, and the decree does not pass upon it, but dis- poses of all other matters in the suit, the decree is final ; (/•) and a decree appointing a trustee to sue under a deed of trust, is final as to this matter, and binding alike on strangers and on parties to the decree, {s) If a suit is dismissed by the court on a final hearing, it is a bar to another suit ; but not if the ground of dismissal is that a court of law is the proper forum. (^) (w) Mills vs. Hoag, 7 Paige, Ch. R. 18 ; Vanmeter vs. Vanmeter, 3 Qratt. Va. 148; Dickenson vs. Codwise, 11 Paige, Cb. R. 189; see Bates vs. Bel- atan, 5 Paige, Ch. R. 299 ; Tennentys. Patton, 6 Leigh, 196; Wetherford vs. James, 2 Ala. 170; Cook vs. Bay, 4 How. Miss. 485 ; Talbot vs. Todd, 7 J. J. Marsh. 456; Graham vs. Elmore, Earring. Ch. 265. (n) Harvey vs. Branson, 1 Leigh, 108 ; Larue vs. Larue, 2 Little, 261 ; Field vs. Boss, 1 Monroe, 137. (o) Johnson vs. Everett, 9 Paige, Ch. 636. (p) Whiting vs. Bank of U. S. 13 Pet. 6 ; see Travis vs. Waters, 1 Johns. Ch. 85; Jonit vs. Gaither, 6 Monr. 251. (q) Turner vs. CrehUl, 1 Ham. 368. (r) Ruff vs. Starke, 3 Gratt. Va. 134. (s) Griffin vs. Doe, 12 Ala. 783. (t) Swift vs. Allen, 55 111. 303 ; Knapp vs. Marshall, 26 111. 63. 198 DECREES AND DECRETAL ORDERS. Forms of Decrees — Caption with Title — Recitals. SECTION II. FORMS OF DECREES. Constituent parts. — Decrees in general consist of three parts : ■firsts tlie caption and title ; second^ the recitals ; and thirds the ordering part ; to which may sometimes be added the fourth^ the declaratory part, which, when made use of, generally pre- cedes the ordering part, (w) The caption and title. — The decree commences with the name of the court, and the place where it is held, the term at which it is pronounced, and the title of the cause. No. 79. Caption of a decree or order, with title of cause. At a Term of the Court, held in and for the County of , in the State of , at the court house in , on the day of , in the year 18—. Present : The Honorable , Judge, etc. A. B. I vs. \ In Chancery. CD.) This cause, etc. The recitals. — The practice in England at one time, was to recite at length the pleadings and evidence in the cause ; but this practice, in consequence of its expense and inconvenience, has been abolished, and the decree now merely recites the sub- stance of the pleadings, and the facts on which the court founds its judgment. In this country, the decree usually contains a mere reference to the antecedent pleadings, without embodying them, or any special facts upon which it is rendered, {v) In Illinois, however, the evidence is frequently preserved in the decree, [w) (u) Barton's Suit in Eq. 150 ; 1 Barb. Cb. Pr. 337 ; 2 Dan. Cb. Pr. 663. («) Barton's Suit in Eq. 150; see Quarrier vs. Carter, 4 Hen. & Munf. 242. (w) Cooley vs. Scarlett, 38 111. 316 , Walker vs. Carey. 53 111. 470. DECREES AXD DECRETAL ORDERS. 199 Forms of Decrees — Recital — Ordering Part. Where a decree in chancery recites that the case was heard upon proofs, and then linds the facts charged in the bill to be true, it will be inferred the facts were found upon the testi- mony. Such a decree will be sustained, though it does not purport to set out the testimony, and it is not otherwise pre- served in the record, (x) No. 80. Recital of a decree or ord&r. This cause having come on to be heard upon the bill of complaint herein, the answer thereto, the replication of the complainant to such answer, and the proofs taken in said cause, and having been argued by counsel for the respective parties, and the court having duly considered the same, it is ordered, etc. The 86th rule for practice in the United States courts of equity provides that, " 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 pro- ceedings, 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, ad- judged and decreed as follows, viz. {Here insert the decree or order.) " The ordering part. — After the recitals comes the ordering or mandatory part of the decree, containing the specific direc- tions of the court upon the matter before it, which, it is obvious, must depend upon the nature of the particular case, which is its subject, {y) Where the decree is merely interlocutory, and directs an issue or an inquiry to be made, or account to be taken before a master, it usually contains a reservation of the further mat- ters to be decided, and generally, also, the costs of the suit, till after the event of the issue or reference shall be known, (s) ix) Mauck vs. Mauck, 54 111. 281. (y) Barton's Suit in Eq. 150. (s) 1 Barb. Ch. Pr. 338. 200 DECREES AND DECRETAL ORDERS. Forms of Decrees — Declaratory Part, etc. Declaratory part. — Where the suit seeks a declaration of the rights of the parties, the ordering part of the decree should be prefaced by such declaration. This is not, however, absolutely necessary, and its omission will not invalidate the decree, {a) Sometimes the court directs an insertion in the decree of the reasons for making the declaration, and of the grounds upon which it proceeds in making it. (b) This, how- ever, is not often done, though the utility of the practice has been frequently recognized, (c) Decree by co?isent. — When a decree is rendered by consent, it should be so stated in the decree, (d) Sometimes it is stated to be by consent generally ; sometimes by consent of counsel, and sometimes by the consent of the parties, (e) A decree or order made by consent cannot be set aside by rehearing, writ of error, or an appeal, or a bill of review, (y*) without showing by the bill of review fraud or mistake, {g) And the consent may be proved aliunde, {/i) Nunc jpro tunc clause. — Decrees will sometimes be entered nunc pro tunc, {i) When they are so entered the following recital and direction may be inserted : " And it appearing to the satisfaction of this court that the complainant A. B. (or the defendant C. D.) has (a) Jenour vs. Jenour, 10 Ves. 568 ; 1 Barb. Ch. Pr. 339. (6) Garden vs. Oorden, 3 Swanst. 478; Maynard vs. Mosely, Id. 653;. Onions vs. Tyrer, 1 P. Wms. 348. (c) Bax vs. Whifbread, 16 Ves. 24 ; Oorden vs. Oorden, 3 Swanst. 478 ; 1 Barb. Ch. Pr. 339. (d) Barton's Suit in Eq. 150, 151 ; 1 Barb. Ch. Pr. 339 ; Seaton on De- crees, 374. (e) Seaton on Decrees, 374. (/) Id. ; Bradish vs. Oee, Ambl. 229 ; Harrison vs. Rumsey, 2 Ves. 488 ; Toder vs. Sansam, 7 Bro. P. C. 244 ; Norcott vs. Norcott, 7 Vin. 398 ; Wind- ham vs. Windham, Freem. 127. ig) Fragler vs. Crow, 40 111. 415. (A) Armstrong vs. Cooper, 11 111. 540. {i) Stevens vs. Coffeen, 39 111. 148; McCormick vs. Wheeler, 36 111. 115; McLain vs. Van Winkle, 46 111. 407 ; Frame vs. Frame, 16 111. 155 ; Brig- nardello vs. Gray, 1 Wall. U. S. R. 630 DECREES AND DECRETAL ORDERS. 201 Entering Decree nunc pro tunc — Drawing Decrees. departed this life since the argument of this cause, it is further ordered, that this decree be entered nunc ]y)'o tunc as of the day of 18 — , the day when this cause was argued." {^j) When one of the defendants dies after the argument of a cause, and before it is decided, it is customary to enter the decree nunc jpro tunc, so that it may have relation back as of the day of the final hearing, [k) So where the complainant died after the entry of an appeal from the decree of a vice chancellor, and after the cause was ready for a hearing upon the appeal, but the fact of his death being unknown to the counsel, the cause w^as afterward heard and decided by the chancellor, upon the appeal ; it was held that the decree upon the appeal might be entered 7iunc jpro tunc as of a day previous to the death of the complainant and after the entering of the appeal. {V) So where the cestui que trust of the complainant had died after argument and before the decision of the cause by which the suit was determined, the court ordered the decree to be entered nunc jpi'o tunc as of the time of the argument, {m) And decrees have been entered nunc pro tunc after a very long interval has elapsed from the time of pronouncing the decree ; and even where the original decree has been lost, the court has permitted it to be entered nunc pro tunc from the office copy, after the lapse of twenty-three years, {n) Drawing of decree. — The decree should be written out by the solicitor and approved by the court, {o) But the judge rendering a decree is not required to sign his name to it. The entry of the decree on the record by the clerk gives it validity, {p) ij) 1 Barb. Cb. Pr. 340. (k) Campbell vs. Mesier, 4 Johns. Cb. 334. {I) Vroom vs. Ditmas, 5 Paige, Cb. 528. (to) Wood vs. Keyes, 6 Paige, Cb. R. 478. (71) Lawrence vs. Richmond, 1 Jac. & W. 241 ; Doynie vs. Lewis, 11 Ves. 601 ; Jesson vs. Brewer, 1 Dick. 371 ; 1 Barb. Cb. Pr. 341, 342. {o) Stevens vs. Coffeen, 39 111. 148 ; Schneider vs. Seibert, 50 111. 285. (p) Dunning vs. Dunning, 37 111. 306. 202 DECKEES AND DECRETAL ORDERS. General Forms of Orders and Decrees. No. 81. General form of an order. ■{Caption, with title of the cause, as in No. 79, ante, j9. 198.) This cause having come on to be heard upon the motion of the complainant, {or defendant) for, etc. {Here insert the nature of the motion, and let the recital agree with the facts), the bill of complaint herein, the answer of the defendant thereto, the replication of the complainant to such answer, and the proofs taken in the cause, and having been argued by counsel for the respective parties; Xow, therefore, on consideration thereof, it is ordered, adjudged and decreed, and the court doth hereby order, adjudge and decree as follows, viz. :* {Here insert the order.) No. 82. General form of a decree. {Caption, with title of the cause as in No. 79, sinte,page 198.) This cause having come on to be heard upon the bill of com- plaint herein, the answer of the defendant tliereto, the replica- tion of the complainant to such answer, and the proofs, oral, documentary and written, taken and tiled in said cause, and having been argued by counsel for the respective parties ; Now, therefore, on consideration thereof, it is ordered, ad- judged and decreed, and the court doth hereby order, adjudge •and decree, as follows, viz. : {Here ivisert the decree.) No. 83. General form of a decree or order, {q) '{Caption, with title of cause, as in No. 75, ante, p)age 198.) This cause came on to be heard, (or to be further heard, as the case may he,) at this term of the said court, 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.) (q) Rule 86 of U. S. Eq. Rules, ante, page 199. CHAPTER XV. SUPPLEMENTAL BILL. Section 1. Nature of, and when PROrER. 2. When to be Filed. 3. Parties to. 4. Form op. 5. Petition for Leave to File. 6. Process. 7. Defenses to. 8. Replication and Evidence. 9. Hearing. SECTION I. NATURE OF, AND WHEN PKOPER. A supplemental bill is used for the purpose of supplying some irregularity or defect discovered in the frame of the original bill, or in some proceedings upon it ; or some defect in the suit arising from events happening after an issue had been reached in the proceedings, and by v^liich persons, not parties to the suit, have acquired an interest in it. (a) If, however, 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 commencement of the suit, {h) Matters which occurred prior to the filing of the original bill, and not stated therein, should be brought into the suit by amendment, but matters arising subsequent to the filing of the original bill, should be introduced by a supplemental l)ill. (c) (a) Barton's Suit in Eq. 128 ; Story's Eq. Pl. § 332 ; Mont. Eq. PI. 316 ; Hinde's Pr. 42, 45. (b) Fahs vs. Roberts, 54 111. 192 ; Candler vs. Pettit, 1 Paige, Ch. R. 168 ; Brown vs. Higdon, 1 Atk. 291 ; Edgar vs. Clevenger, 2 Green, Ch. R. 258 ; Story's Eq. PI. ^ 339. (c) Burke vs. Smith, 15 111. 158 ; Stafford vs. Howlett, 1 Paige, Ch. R. 300 ; Fulton Bank vs. iV^. Y. & S. Canal Co. 4 Paige, Ch. R. 127 ; Walker vs. Oil- hert, 7 S. & M. 456 ; Wray vs. Hutchinson, 2 Mylne & Keene, 235 ; Crompton vs. Womhcell, 4 Sim. 628. 204 SUPPLEMENTAL BILL. Nature of, and when Proper. And such bill may not only be for the purpose of putting in issue new matter, which may vary the relief prayed in the original bill, but also for the purpose of putting in issue matter, which may prove the complainant's right to relief, originally prayed, (d) In order to file a supplemental bill, it must be shown that the matter relied on as supplemental has arisen since the com- mencement of the original suit, or that the facts have first become known to the complainant in such a way that he could make use of them since the cause passed the stage in which he might have leave to amend, or that he had been prevented by inadvertence, mistake, or some other cause satis- factorily shown, from availing himself of the matter proposed to be shown at an earlier stage of the case ; and the supple- ment bill must be confined to such matter, and must be verified by aSidavit, or other satisfactory proof, (e) The court will also permit other matters to be introduced into the supplemental bill which might have been incorporated in the original, by way of amendment ; and this is especially proper where the matter which occurred prior is necessary to the proper elucidation of that which occurred subsequently to the filing of the original bill ; (f) and when properly before the court it is an addition to the original bill, and becomes a part of it, so that the whole is to be taken as one supplemental bill, (g) constituting but one cause, requiring but one replication, (h) A supplemental bill may also be proper in order to bring before the court new parties. In such case the original de- fendants need not be made parties, unless they have an interest (d) Story's Eq. PI. g 332 ; Crompton vs. WombwcU, 4 Sim. 628. (e) Pedrick vs. White, 1 Met. 76 ; Boicie vs. Minter, 2 Ala. 406 ; Story's Eq. PI. § 333; Mitf. Eq. PI. 55, 61 ; Hinde's Pr. 42,43; Veazievs. Williams, 3 Story, R. 54 ; see also Hashrook vs. iShiister,^ Barb. 285 ; Collins vs.Laven- berff, 19 Ala. 682 ; Mix vs. Beach, 46 111. 311 ; Choteau vs. Rice, 1 Minn. 106; Copen vs. Flesher, 1 Bond, 440. (/) Graves vs. Miles, Harring. Ch. 332. (g) Oillett vs. Hall, 13 Conn. 426 ; Potier vs. Barclay, 15 Ala. 439 ; Cwv- ningham vs. Rogers, 14 Ala. 147; Harrington vs. Slade, 22 Barb. N. Y. 161 ; Cotton vs. Carlisele, 5 Mad. 427 ; Oreenwood vs. Atkinson, 4 Sim. 628. (h) Id. ib. ; Choteau vs. Rice, 1 Minn. 106. SUPPLEMENTAL BILL. 205 When to be Filed — Parties to. in the supplemental matter, or may be affected by the interest of such new parties, (i) A stranger to a suit in equity claiming an interest therein, cannot interfere with the proceedings without filing a supple- mental bill to make himself a party, (j) And when a supple- mental bill is filed, bringing new parties into court, it is, as to them, a new suit, and is to be considered as being commenced when the supplemental bill is filed, {k) The filing of a supplemental bill, after a pro confesso order, vacates the order, and the defendant may put in an answer. (Z) SECTION II. WHEN TO BE FILED. A supplemental bill for the purpose of adding new matter, or for the pui-pose of bringing new parties before the court, may sometimes be filed after as well as before the decree, (w) Thus, for the purpose of giving directions which were not prayed for in the original bill, but which the result of the pro- ceedings under the decree has rendered proper, in) But it cannot be filed after a decree dismissing the bill, {p) SECTION III. PARTIES TO SUPPLEMENTAL BILL. When the bill is filed for any new matters arising since the filing of the original bill, the defendants to the original bill (t) BignaU vs. Atkins, 6 Mad. 369 ; Ensicorth vs. Lambert, 4 Johns. Ch. R. 605 ; Jones vs. Jones, 3 Atk. 217 ; Holdsworth vs. Holdmorth, 2 Dick. 799 ; North Am. Coed Co. vs. Dyett, 2 Edw. Ch. 115. (j) Watt vs. Crawford, 11 Paige, Ch. R. 470; Livingston vs. Freeland, 3 Barb. Ch. R. 510. {k) Morgan vs. Morgan, 10 Geo. 297. (I) Oibson vs. Reas, 50 111. 383. {m) 2 Barb. Ch. Pr. 62; Woodward vs. Woodward, 1 Dick. 33; Boeve vs. Skipvyith, 1 Eq. Ca. Ab. 80 ; 2 Ch. R. 142 ; 3 Dan. Ch. Pr. 156. (n) Dormer vs. Fortescue, 8 Atk. 124. (o) Burke vs Smith, 15 111. 158. 206 SUPPLEMENTAL BILL. Parties to. ought to be made parties ; {p) but if it is merely to bring before the court formal parties, the defondants in the original bill need not to be made parties, {q) Where, however, a person has acquired the interest of a party to a suit, and thinks proper to file a supplemental bill himself, he must make all the parties to the original bill, whether complainants or defendants, parties to his supple- mental bill, {r) So, also, where one of the several complainants assigns his interest to a stranger, and the remaining complain- ants file a supplemental bill against the assignee, they must also make the defendants to the original bill parties to the sup- plemental bill, {s) To entitle a complainant to file a supplemental bill, and thereby to obtain the benefit of the former proceedings, it must be in respect of the same title in the same person, as stated in the original bill. He cannot file such a bill to have the benefit of the former proceedings, if he claims by a difierent title, {t) A new party, representing the interest of a former party, who comes before the court by a supplemental bill, whether filed by himself or by the complainant, stands exactly in the same position as the former party, is bound by his acts, and may be subject to all the costs of the proceeding from the beginning of the suit, {u) Therefore, it has been held that a purchasei" of the interest of a ^?ivtj pendente lite, on filing his supplemental bill, comes into court, whether for gain or loss, and shall be liable to the cost of the proceeding, from the ' beginning to the end of the suit, {v) So, also, the assignees of a bankrupt, who are brought before the court by supplemental bill, may be liable to the costs of the whole suit, if they improp- erly resist the complainant's demand, {w) (p) Jones vs. Jones, 3 Atk. 217. (q) Id. Ccdwell vs. Boyer, 8 Gill & J. 136 ; Enstcorth vs. Lambert, 4 Johns. Ch. R. 005 ; McGowan vs. Yerks, 6 Johns. Ch. R. 450. (r) 3 Dan. 180 ; 2 Barb. Ch. Pr. 69. (a) Feary vs. Stephenson, 1 Beav. 43. it) Welf Eq.P1.189; 2Barb.Ch.Pr.69; Tonkinvs.Let7ibridge,Coo^.^c{.B..m. (u) 2 Barb. Ch. Pr. 69 ; Mitf. Eq. PI. 68. (v) Anon. 1 Atk. 89. (w) Whitcomb vs. Minchin, 5 Mad. 91 ; 2 Barb. Ch. Pr. 69. SUPPLEMENTAL BILL. 207 Form of Bill — Prayer of. SECTION IV. FORM OF BILL. A supplementa] bill must state the original bill, and the proceedings thereon ; and if it is occasioned by an event sub- sequent to the original bill, it must state that event, and the consequent alteration, with respect to the parties ; and, in gen- eral, the supplemental bill must pray that all the defendants, may appear and ansvrer to the charges it contains, (x) The propriety of introducing a restatement of the case from the original bill, into the supplemental bill, must depend upon the question, whether the object of the supplemental bill is to state the mere fact of a bill having been filed, or to put in issue any of the circumstances and facts stated and charged in it. {y) If the former is the object, the mere statement that th& complainant had filed a bill which prayed such and such relief, will be sufficient ; or, if the pleader should not think this sufficient, he may introduce a short recital, (s) If the latter is the object in view, the facts intended to be stated may be set out in the supplemental bill, either by way of original state- ment, or as a restatement of the facts in the original bill, with an averment of their truth, (a) Prayer of. — A supplemental bill generally calls upon the defendant to answer the supplemental matter only. If, how- ever, it is occasioned by the transmission of the interest of a defendant, who has not answered the original bill, and it is necessary to have a discovery from the new defendant, of the matters in the original bill, it may pray that the defendant may answer the original bill. (5) And in such case the defend- ant will be bound to answer the original, as well as the supplemental bill, (c) (x^ 2 Barb. Cli. Pr. 70 ; Mitf. Eq. PI. 75 ; Story's Eq. PI. § 343. (y) Story's Eq. PL § 343 ; 2 Barb. Ch. Pr. 71. (z) 3 Dan. 177 ; Gilb. For. Rom. 210 ; 2 Barb. Ch. Pr. 71. (a) 2 Barb. Ch. Pr. 71 ; Viger» vs. Lord Axtdley, 9 Sim. 73. (6) Vigers vs. Lord Audley, 9 Sim. 72. (C) 3 Dan. 72 ; 2 Barb. Ch. Pr. 72 ; see Asbee vs. Shipley, Mad. & Geld. 296. 208 SUPPLEMENTAL BILL. Form of a Bill. No. 8^. SuppUraental hill for specifi-c performance., stating that defendant has hrmight ejectmenU praying for injunc- tion, etc. ^ To the Honorable , Judge of the Court of the County of , in the State of , In Cl\ancery sitting : Your orator, A. B., of, etc., respectfully represents unto your honor, that on, etc., your orator exhibited his bill of complaint in this honorable court against C. D., thereby praying that the said C. D. might be decreed specifically to perform his agreement with your orator, touching the sale of the real estate in the said bill mentioned, and to execute to your orator a deed therefor, your orator being ready and willing to do everything on his part required to be performed in pursuance of said agreement. Your orator further represents that the said C. D. appeared and put in his ahswer to the said bill, and your orator filed a replication thereto ; as by the files of the said cause will more fnlly appear; which said cause is still pending and undeter- mined in this court. Your orator, by way of supplement, further represents, that since the filing of said bill, the said C. D. has commenced an action of ejectment upon the common law side of this court, for the purpose of recovering the possession of the said premises ; which action of ejectment is now pending and undetermined ; that your orator has requested the said C. D. to desist from proceeding with the said action of ejectment, but the said C. D. refuses so to do, and still continues the prosecution thereof. Forasmuch, therefore, as your orator is without remedy in the premises, except in a court of equity ; and to the end that the said C. D., who is made a party defendant to this supple- mental bill, may be required to make full and direct answer to the same, hut not under oath., the answer under oath heing hereby waived ^ that he may be restrained by the injunction of this court, from proceeding in said action of ejectment, and also from commencing any other action or proceeding at law foi the purpose of turning your orator out of the possession of the said premises ; and that this, your orator's bill of complaint may be deemed and taken as and for a bill of supplement to his said original bill ; and that 3'our orator may have such other and further relief in the premises as equity may require, and to your honor shall seem meet. May it please, etc. {Prayer for injunction, see sinte,page 73, and add affidavit.) SUPPLEMENTAL BILL. 209 Form of a Bill. No. 86. Supplemental hiU against the assignee of a bankrupt defendant. To the Honorable , Judge of the Court, of the County of , in the State of , In Chancery sitting : Your orator, A. B., of, etc., respectfully represents unto your honor, that on, etc., your orator tiled his bill of complaint in this honorable court against C. D., of, etc., praying, etc., {Here insert the substance of the prayer ; that the said C. D. having been served with process, appeared and put in his answer to the said bill ; and your orator replied to the said answer ; but before any further proceedings were had in the said cause, and on, or about, etc., the said C. D. was, by the district court in and for the district of , adjudged a bankrupt ; and one E. F., the defendant hereinafter named, having since been duly chosen assignee of the estate and eflects of the said bank- rupt ; and the estate and effects late of the said bankrupt having been conveyed to the said assignee ; and, therefore, your orator is advised that he is entitled to the same relief against the said E. F., as he would have been entitled to against the said C. D. if he had not become bankrupt. Forasmuch, therefore, as your orator is without remedy in the premises, except in a court of equity ; and to the end that the said E. F., who is made party defendant to this bill, may be required to make full and direct answer to the same, hut not on oath, the ansioer under oath heing hereby waived / and that your orator may have the full benefits of tlie said suit and proceedings therein against the said E. F. ; and may have the same relief against him as your orator might or could have had against the said C. D., in case he had not become bankrupt ; and that your orator may have such other and further relief in the premises as equity may require, and to your honor shall seem meet. May it please your honor to grant the writ of summons in chancery, directed to the sheriff of the county of , com- manding him that he summons the defendant E. F., etc., to appear before the said court, on the first day of the next tei'm thereof, to be held at the court house in , in the county ■of aforesaid, then and there to answer this bill, etc. Sol. for Complainant. 14 210 SUPPLEMENTAL BILL. Petition for Leave to File — Form of Petition. SECTION V. PETITION FOR LEAVE TO FILE. A motion, based upon a petition, for leave to file a supple- mental bill, is ordinarily addressed to the discretion of the court. Leave is generally granted of course, if probable cause for filing it is shown. The court will examine the question only so far as to ascertain that it is not intended for vexation or delay ; (c) and in ordinary cases, the defendant is not enti- tled to notice of the application for such order, {d) The 5Tth rule for practice in the courts of equity of the United States, requires notice to be given to the defendant, of an intended application for leave to file a supplemental bill. Mo. 86. Petition for leave to file a sujCfpUmental hill. In the Court. A. B. 1 Term, 18 —. vs. y In Chancery. CD.) To the Honorable , Judge of the Court of the County of , in the State of , In Chancery sitting : The petition of A. B., the above named complainant, respect- fully represents, that on, etc., your petitioner filed his bill in this honorable court, against the defendant C. D., for the pur- pose of, etc., {State generally the object of the hill,) and praying, etc. [State the suhstance of the prayer.) And your petitioner further represents, that the said C. D., being served with summons, appeared to said bill, and put in his answer thereto, to which the petition filed a replication ; that afterwards, and before any further proceedings were had in said cause, etc. {Here state the supplemental matter) ; wliere- (c) Turner vs. Berry, 3 Qilm. 541 ; Tappan vs. Evans, 12 N. H. 330 ; Pedrick vs. White, 1 Met. 76 ; Kennedy vs. Georgia State Bank, 8 How. U. S. 586 ; Winn vs. Albert, 2 Md. Cb. Decis. 42 ; Eager vs. Price, 2 Paige, Ch. R. 333 ; Walker vs. Hallett, 1 Ala. (N. S.) 379 ; Lawrence vs. Bolton,^ Paige, Ch. R. 294. {d) Eager vs. Price, 3 Paige, Ch. R. 333 ; Lawrence vs. Bolton, 3 Paige, Ch. R. 294. SUPPLEMENTAL BILL. 211 Process — Defenses to. fore your petitioner is advised, that it is necessary to bring the said E. F. before this court, as a party defendant to this suit. Your petitioner therefore prays that leave may be granted to him to file a supplemental bill against the said E. F., for the purpose of making him a defendant to this suit, with proper and apt words to charge him as such, and with such prayer for relief as may be proper, and for such other, etc. Solicitor JOT complainant. A. B. {Add affidamt.) SECTION VI. PKOCESS, ETC. Upon the filing of a supplemental bill, it is not necessary that a summons should issue against a party already in court, nor that an appearance be entered, before a pro confesso order can be entered. If new parties are made defendants to the bill, process must issue as in other cases, {e) SECTION VII. DEFENSES TO. The defendant to a supplemental bill may either demur, plead or answer, as in other cases. Demurrer. — If the bill is filed without any sufficient grounds for a supplemental bill, the defendant may demur. {/) Thus, if it appears upon the face of the bill, that all the matters alleged therein arose previous to the filing of the original bill, and might have been inserted therein by way of amendment, the objection may be taken by demurrer ; [g] even though the bill alleges that the facts were not known to the complainant until the original cause wms at issue. (A) Many of the causes of demurrer which apply to original (e) Mix vs. BencJi, 46 111. 311. (/) Lmorence vs. Bolton, 3 Paige, Ch. R, 294. ig) Id. ; 1 Barb. Ch. Pr. 54 ; 2 Id. 75. (Ji) Colclough vs. Evans, 4 Sim. 76. 213 SUPPLEMENTAL BILL. Demurrer to — Form of Demurrer — Plea. bills, also apply to supplemental bills; but there are some grounds of demurrer which are applicable solely to supple- mental bills, (i) If a supplemental bill is filed upon matters arising subse- quent to the time of filing the original bill, against a person who claims no interest out of the matters in litigation by the former bill, the defendant to the bill thus brought as a supple- mental bill may demur; especially if the bill prays that he may answer the matters charged in the original bill, {j) A defendant may also demur if the same complainant files a supplemental bill claiming the same matter as in his original bill, but upon a title totally distinct, {k) A motion to strike a supplemental bill from the file for irregu- larity, on the ground that it does not state supplemental matter, will not lie. The proper course in such case is to demur. (^ lio. 87. Demurrer to supplemental hill. In the Court. Term, 18—. In Chancery. The demurrer of C. D., defendant, to the supplemental bill of A. B. complainant. This defendant, etc., {Proceed as in No. 16, ante, ^. 108, to the *, tJisn) that this defendant, as appears by the said supple- mental bill, is not a party to the original bill therein in part stated and set forth ; nor does it appear by the said supple- mental bill, that any new matter has, or is pretended to have arisen, since the original bill was filed, or that there is any reason that this defendant should not, if necessary, be made a party thereto by amendment. Wherefore, etc. {Conclude as in JVo. 16.) Plea. — Besides those grounds of plea which are common to supplemental and original bills, if a supplemental bill is (t) 3 Dan. 183 ; 2 Barb. Cli. Pr. 75. (;•) Mitf.Eq.P1.202; Baldwin\a.Mackowii,^ki\..nmi; Story's Eq.Pl. § 343. {k) Tonkins vs. Lethbridge, Coop. Eq. R. 83 ; 2 Barb. Ch. Pr. 75 ; Story's Eq. PI. § 343. (l) Bowyer vs. Bright, 13 Price, 316. SUPPLEMENTAL BILL. 213 Practice, etc. — Form of Plea — Answer. brought on matter which arose before the original bill was filed, and which might have been introduced into the original bill, and this fact does not appear upon the face of the supple- mental bill, so as to enable the defendant to demur, it may be pleaded, {m) So, if a supplemental bill is filed without any suflicient grounds, the defendant may make the objection by plea. (n) Practice as to demurrers and pleas. — Demurrers and pleas to supplemental bills are subject to the same rules, both with respect to their form and substance, and to the practice arising upon them, as demurrers and pleas to original bills, {o) No. 88. Plea to a supplemental hill. In the Court. Term, 18—. In Chancery. The plea of C. D., defendant, to the supplemental bill of A. B., complainant. This defendant, etc., {Proceed as in No. 28, ante, p. 119, to the *, then) the several matters and things in the complainant's present bill stated and set forth by way of supplement, arose, and were well known to the complainant, before and at the time the complainant filed his original bill in this cause ; and that such several matters and things can now be introduced, and ought so to be, if necessary, by amending the said original bill. Wherefore, etc. {Conclude as in No. 28.) Answer. — If the defendant to the supplemental bill neither demurs nor pleads to it, he must put in an answer, as in the case of an original bill. If, however, there is any matter in the supplemental bill which is properly the subject of demurrer (m) 2 Barb. Ch. Pr. 76 ; Mitf. Eq. PI. 290 ; Stafford vs. Howlett, 1 Paige, Ch. R. 200. in) Id. ; Lmcrence vs. Bolton, 3 Paige/K^b. R. 294. (o) 3 Dan. 184 ; 2 Barb. Cb. Pr. 76. 214 SUPPLEMENTAL BILL. Answer — Replication — Evidence. or plea, he may, in his answer, claim the same benefit of it as he would have been entitled to had he demurred or pleaded, {p) Where the defendant is called upon to answer the original bill, at the same time he is called upon to answer the supple- mental bill, the usual course is to include the answer to both in the same answer, (q) It is not, however, absolutely irreg- ular to separate them, (r) The form of an answer to a supplemental bill, and the man- ner of putting it in, are the same as in the case of an answer to an original bill, and are subject to the same contingencies, {s) After the answer has been put in, and the proceedings on the supplemental bill have arrived at the same point at which the bill stood, they then proceed by the same gradation together, {t) SECTION VIII. REPLICATION AND EVIDENCE. Replication. — A replication may be filed by the complainant in a supplemental suit, to the defendant's answer in the same manner as in an original suit. A separate replication is only necessary where there has already been a replication in the original suit. Where there has been no replication in the original suit, a general replication will apply to the whole record, and not merely to the original bill, {u) Evidence. — The new matter introduced by the supplemental bill, must be proved, unless it is admitted by the answer or otherwise. If not proved, the supplemental bill will be dis- missed with costs. For this purpose witnesses may be exam- ip) 2 Barb. Ch. Pr. 76 ; 3 Dan. 184. iq) Vigera vs. Lord Audley, 9 Sim. 408. (r) SayU vs. Graham, 5 Sim. 8 ; 2 Barb. Cli. Pr. 77. (s) 3 Dan. Ch. Pr. 185 ; 1 Barb. Ch. Pr. 140-147 ; 2 Id. 77. (t) Lube's Eq. PI. 138 ; 2 Barb. Ch. Pr. 77. («) 2 Barb. Ch. Pr. 77 ; Catton vs. Earl of Carlisle, 5 Mad. 457 ; Gillett vs. Hall, 13 Conn. R. 426 ; Chateau vs. Bice, 1 Minn. 106; Copen vs. Flesher, 1 Bond, 440. SUPPLEMENTAL BILL. 215 Hearing — Entitling Orders. ined as to the new matter contained in the supplemental suit, {v) And where no witnesses have been examined in the original cause, they may be examined to prove the matters in issue in the original cause, as well as those in issue in the supplemental suit, (w) A supplemental suit is merely a continuation of the original suit, and whatever evidence was properly taken in the original suit, may be made use of in both suits ; even though not entitled in the supplemental suit, (a?) SECTION IX. HEAKING. If there has been no decree in the original suit before the tiling of the supplemental bill, the original and supplemental suit may come on for hearing together, unless the supplemental bill is for discovery, and one decree will be made in both, (y) But if a decree has been rendered before the event of the sup- plemental bill was rendered necessary, there must be a decree on the supplemental bill ; for Avhich purpose the supplemental cause must be brought to a hearing alone ; or it may be heard with the original cause for further direction, (z) If the supplemental is unnecessarily or improperly filed, it will be dismissed at the hearing, although the complainant obtains a decree on the original bill, (a) Entitling orders. — When the original and supplemental suits proceed as one cause, the orders and papers should be entitled, " A. B., complainant, C. D., defendant — by original and supple- mental bills." {h) (■») 2 Barb. Ch. Pr. 77-78. {w) 2 Barb. Cli. Pr. 78 ; 3 Dan. 186. (x) Id.; Giles vs. Giles, 1 Keen, 685 ; Mitf. Eq. PI. 74; Garth vs. Wood, 2 Atk. R. 174. (y) Mitf. Eq. PI. 64, 75 ; Seaton on Decrees, 385. (3) 2 Barb. Cli. Pr. 79 ; Seaton on Decrees, 386 ; Mitf. Eq. PI. 64 ; Adams vs. Downing, 2 Mad. 61. (a) Eager vs. Price, 2 Paige, Ch. R. 339. (6) John vs. Brown, Seaton on Decrees, 385. 216 SUPPLEMENTAL BILL. Dismissing Bills. Dismissing bills. — If the supplemental bill is unnecessarily or improperly filed, it will be dismissed at the hearing, although the complainant obtains a decree on the original bill, (c) So, if no proof is made of the supplemental matter, the bill will be dismissed at the hearing, {d ) (c) Eager vs. Price, 2 Paige, Ch. R. 339. {d) Bagnall vs. Bagnall, 2 Eq. Abr. 173 ; 6 Bro. P. C. 86 ; 2 Barb. Ch. Pr. 79. CHAPTER XYI. BILLS IN THE NATURE OF SUPPLEMENTAL BILLS. Section 1. Original Bills in the Nature op Supplemental Bills. 2. Bills to Carry Decrees into Execution. SECTION I. ORIGINAL BILLS IN THE NATURE OF SUPPLEMENTAL BILLS. When proper. — A supplemental bill is a mere continuation of the original suit by or against a party having or acquiring the interests of a former party, and it forms, together with the original bill and the proceedings under it, but one record. Cases, however, sometimes occur in practice in which the interest of an original party to a suit is completely determined, and another party becomes interested in the subject matter, by a title not derived from the original party, but in such a manner as to render it but just and reasonable that the benefit of the former proceedings should be had by or against such other party, without incurring the expense and risk of commencing an entirely new proceeding. The course of the court, therefore^ enables, that in such cases the benefit of the fomier proceed- ings may be obtained by means of a bill called an original bill in the nature of a supplemental bill, {a) The principal diflference between this and a supplemental bill seems to be that a supplemental bill is applicable to such cases only, where the same parties or the same interests remain before the court ; whereas, an original bill in the nature of a supplemental bill, is properly applicable where new parties, with new interests, arising from events occurring subsequent to the institution of the suit are brought before the court. (J) (a) 2 Barb. Ch. Pr. 8J: ; 3 Dan. 230; Hinde, Ch. Pr. 71; Blake, Ch. Pr. 38. (6) Coop. Eq. PI. 75 ; Story's Eq. PI. j 34.5. 218 BILLS IN NATURE OF SUPPLEMENTAL. Original Bills in the Nature of — When Proper. A bill of this nature is properly called an original bill in the nature of a supplemental bill, because it is original as to the new parties and new interests; and it is, in some sort, supplemental also, as being an appendage to the former bill, as to the old parties and old interests. («^6 108, to the asterisk *, and, then) That the complainant has not, in and by his said bill, shown any right or title whatsoever, to compel this defendant and E. F. the other defendant to the said bill, to interplead. Wherefore, etc. {Conclude as in No. 16.) Ansv^er. — The defendant may also ])ut in an answer ad- mitting or denying the facts stated in the bill. If the defend- ants, or either of them, deny the allegations in the bill, or set up distinct facts in bar of the suit, the complainant must 288 BILL OF INTERPLEADER. Defenses to — Answer — Injunction, etc. reply to the answer, and close the proofs, in the nsual manner^ before he can bring his cause to a hearing, (s) If one of the defendants, in a bill of interpleader, in his answer, makes a claim against the complainant beyond the amount admitted to be due and paid into court, and which is not claimed by the other defendant, he will be permitted to proceed at law to establish his right to that part of his de- mand which is not in controversy with the other defendant, {t) Where the facts stated in the bill are admitted in the answer, and no new facts are set up in bar of the suit, the cause, upon a replication being filed, is set down for a decree to interplead, before the proofs are taken as between the defendants, and the complainant is dismissed with his costs up to that time, paid out of the fund, (u) It is said, however, that it is not usual for the complainant, in such cases, to file a replication, although it is admissible for him to do so. (v) Injunction, etc. — Until the complainant has brought the money into court, he cannot proceed compulsorily by injunc- tion, (w) The common order for an injunction upon a bill of interpleader is, that it issues upon the complainant paying the money into court. This is a condition precedent, and an order for an injunction not containing it will be discharged, (a?) The injunction on an interpleading bill stays all proceed- ings, {y) It may be moved for at once on payment of the money into court, and before the time for answering has expired, (z) (s) 2 Barb. Ch. Pr. 133 ; City Bank vs. Bangs, 2 Paige, Ch. 570. {t) City Bank vs. Bangs, 2 Paige, Ch. 570. (u) City Bank vs. Bangs, 3 Paige, Ch. 570 ; Leonard vs. Jamison, 2 Edw. Ch. 136. {v) Yates vs. Tisdale, 3 Edw. Ch. 71 ; see Atkinson vs. Manks, 1. Cow. 691. {w) Surry vs. Waltham, 2 Anst. 539, note; Meux vs. Bell, 6 Sims. 175; Mohawk & Hudson R. It. Co. vs. Clute, 4 Paige, Ch. R. 384 ; Shaw vs. Ches- ter, 2 Edw. Ch. R. 405. (x) Sieveking vs. Behrens, 2 My. & Craig, 581 ; Well Eq. PI. 156 ; 2 Barb. Ch. Pr. 123. (y) Warrington vs. Wheatstone, Jacob, 205. («) Id. Vicary vs. Widger, 1 Sim 15. BILL OF INTEEPLEADEE. 289 Form of Order for Injunction — Taking Bill as Confessed. No. IlJf.. Order for injunction on hill of interjpleader. {Caption, and title of cause as in Ho. 79, ante, pacje 198.) On filing bill of interpleader in this cause, duly verified, and an aflidavit of non-collusion, it is ordered that an injunction issue pursuant to the prayer of said bill, upon the complainant paying into the hands of the register {or clerk) of this court, the sum of dollars mentioned in the said bill. Taking hill as confessed. — If one of the defendants does not appear, the bill may be taken as confessed as to him. {a) And where this is done, if such defendant is an absentee, the other defendant who appears, will not be entitled to the possession of the fund until the expiration of the time limited by the statute for the absent defendant to appear ; unless he gives security to repay the money in case the a])sent defendant appeal's and estab- lishes his right. (J) If a defendant permits a bill of interpleader to be taken as confessed against him, it is an admission that, as to him, the bill was properly filed, and that he has made an improper claim against the fund, (c) Where one of the defendants is out of the jurisdiction, the complainant is bound to bring him within the jurisdiction in a reasonable time ; and if he omits to do so, the other defendant is, upon indemnifying the complainant against those out ot the jurisdiction, entitled to the thing in dispute. If the com- plainant has used due diligence to bring the party within the iurisdiction, the court will not permit such party afterwards to proceed at law. {d^ The court will not actively interfere to dispose of a fund, except in favor of one who appears, either from proof or a ^^o corfesso, to be best entitled, {e) {a) Farehrother vs. Prattent, Dan. R. 64. (6) 2 Barb. Ch. Pr. 123-124 ; Aymer vs. Gaunt, 2 Paige, Ch. R. 284. (c) Badeau vs. Rogers, 2 Paige, Ch. 209. (d) Stevenson vs. Anderson, 2 Ves. & Bea. 411 ; Welf. Eq. PI. 157. (c) Pillow vs. Aldridge, 4 Humph. 287. 19 290 BILL OF INTERPLEADER. Evidence — Hearing and Decree. Evidence. — In an interpleading suit the answer of one of the defendants may be read against the other. (/") Upon the hearing in such suit evidence is admissible to show that the complainant has retained possession of the subject of the suit under an indemnity from some of the defendants, (g) SECTION V. H BAKING AND DECREE. The court disposes of the questions arising upon bills of interpleader in various modes, according to the nature of the question, and the manner in which it is brought before the court. It has been already mentioned that if the defendants, or either of them, deny the allegations in the bill, or set up distinct facts in bar to the suit, the complainant must reply, and close the proofs in the usual manner before he can bring his cause to a hearing. But where the defendant admits facts stated in the bill, and on which the right to file such a bill rests, and sets up no new facts as against the complainant, or in bar of his suit, it seems to be suflicient for him to file a replication, and to set the case down for a decree to interplead, without waiting until the proofs are taken as between the defendants. (A) An interj)leading bill is seldom brought to a hearing, {i) If a cause is ripe for a decision between the defendants, as well as between them and the complainant, the court settles the conflicting claims of the parties, and makes a final decree on the first hearing. But if it is not in readiness for a de- cision as between the defendants, the court merely decides that the bill is properly filed, and dismisses the complainant with his costs up to that time, and directs an action to be brought, (/) Boioyer vs. Pilchard, 11 Price, 103. (g) 3 Barb. Ch. Pr. 124; Staiham vs. Hall, Tur. & Russ. 30. (h) City Bank vs. Bangs, 2 Paige, Ch. R. 570 ; Welf. Eq. PI. 157 ; 2 Barb. Ch. Pr. 124. (t) Ma/rtinius vs. Helmuth, 2 Ves. & Bea. 413. BILL OF INTERPLEADER. 291 Hearing and Decree — Costs. or an issue, or a reference to the master, to ascertain and settle the rights of the defendants to the fund in controversy. (J) The parties defendant stand before the court to litigate the questions of right pending between them, to the same extent, as if one had brought suit against the other, predicated upon the same matter and for the same question, (k) And upon a reference to a master to settle the rights of the defendants as between themselves, the court will give them the benefit of a discover}' as against each other, if they, or either of them, desire it. {l) A decree that the bill of interpleader is properly filed is the only decree that the complainant is interested in obtaining, {m) And there must be a decree to sustain the further proceedings. But if the complainant dies after decree, no bill of revivor is necessaiy. {n) If after answer by both defendants, one makes default at the hearing, the court will make a decree on hearing the case of the defendant who appears, (o) If a decree goes on to order a reference to a master by con- sent of parties, upon principles calculated to adjust the rights of those called upon to interplead, it will be considered a sui>- stitute for the ordinary proceedings by actual interpleader. (2^) Costs. — Where a bill of interpleader is properly tiled, the complainant is, in general, entitled to his costs out of the fund, (q) They are to be paid, in the first instance, by the party entitled to the fund, but eventually by the other, (r) (J) Angell vs. Hodden, 16 Ves. 203 ; City Bank vs. Bangs, 2 Paige, Ch. R. 570; Welf. Eq. PL 157-158; 2 Barb. Ch. Pr. 124-125; Barton's Suit in Eq. 69. {k) Horton vs. Baptist Ch. etc. 34 Vt. 309. it) City Bank vs. Bangs, 2 Paige, Ch. 570. (to) Atkinson vs. Manks, 1 Cow. 691. (71.) Jennings vs. Nugent, 1 Moll. 134; Anoii. 1 Vern. 351. (0) Hodges vs. Smith, 1 Cox's Ca. 357. (p) Atkinson vs. Manks, 1 Cow. 691. (9) Aymer vs. Ganlt, 2 Paige, Ch. R. 284 ; Spring vs. South Carolina Ins. Co. 8 Wheat. 268 ; Mason vs. Hamilton, 5 Sim. 19 ; Campbell vs. Solomons, 1 Sim. & Stu. 462; Atkinson vs. Manks, 1 Cow. 691. (r) Canfield vs. Morgan, Hopk. 224 : TJiompson vs. FMetts, Hopk. 272. 292 BILL OF INTERPLEADEK. Costs — Form of Decree, etc. Where a bill is unnecessarily filed, however, the complain- ant will not be allowed his cost out of the fund, (s) He will be entitled to his costs only in those cases where the bill is necessarily and properly filed as against both defendants, {t) But if one of the defendants sufters the bill to be taken as con- fessed against him, he will be personally charged Math all the costs which have been produced in consequence of his unjust claim upon the fund, {u) Under special circumstances, the defendants will be allowed to have their costs respectively, to be deducted from the fund, (-v) JVo. lis. Interlocutory decree on a hill of inter jpleaderr^ directing a reference to raast&r. {Caption., and title of caiise as in No. 79, ante, page 198.) This cause coming on to be heard, this day, upon the bill of interpleader filed therein, the answers of the defendants, and the replication thereto ; and the court having heard the argu- ments of the counsel for the respective parties, and upon con- sideration thereof, it is ordered, adjudged, and decreed that the said bill of interpleader is properly filed, and that the defend- ants do interplead and settle the matters in controversy in this suit between themselves ; and for that purpose it is ordered, adjudged, and decreed that it be referred to the master in chan- cery of this court, to inquire and report which of the defend- ants is entitled to the fund in controversy, and which has been deposited with the register {or cleric) of this court. And if the said master shall be of opinion that any two or more of the defendants are equitably entitled to share in the same, that he also ascertain and report what portion of the fund belongs to each. And it is further ordered that previous to the examina- tion of any witnesses before the said master, either of the parties may present to such master, on oath, a written statement of his claim, and of the facts and circumstances on which it is founded ; which statement shall be answered on oath by all the other defendants, to the satisfaction of the said master, and with the like eflfect, as if such answer was filed to a bill of discovery. (s) Bedell vs. Hoffman, 2 Paige, Cli. 199. (t) Badeau vs. Rogers, 2 Paige, Ch. R. 209. {u) Badeau vs. Rogers, 2 Paige, Ch. 209 ; 2 Barb. Cb. Pr. 196. (c) Atkinson vs. Manks, 1 Cow. 691. BILL OF INTERPLEADER. 293 Form of Decree, etc. And upon such reference, either party is to be at liberty to summons witnesses and proceed before said master in such manner as said master shall direct ; and that the solicitor of each defendant have notice of all proceedings before the said master. And it is further ordered, adjudged, and decreed, that the complainant be dismissed with his costs of this suit up to this time, to be taxed, to be paid out of the said fund in court. And this court reserves the consideration of all questions of costs as between the defendants, and all other questions and directions, until the coming in of the master's report ; but with liberty to either party to apply for such other instructions or directions to the master as may be necessary or proper, pending the reference, {w) {w) See City Bank vs. Bangs, 2 Paige, Cli. R. 573 ; Seaton on Decrees, 339. CHAPTER XXIII. BILLS AND PETITIONS TO PERPETUATE TESTIMONY. Section 1. Nature of the Proceedings. 2. Frame of a Bill to Perpetuate Testimony. 3. Defenses, and Proceedings. 4. Petition to Perpetuate Testimony. SECTION I. NATURE OF THE PROCEEDINGS. A bill to perpetuate testimony is used where there is reason to fear that the evidence necessary to establish facts, which will probably become the subject of controversy at a future period » may become lost by the death, or absence from the country of a material witness, {a) But such bills will not generally be entertained for the pui'pose of being used upon a future occa- sion, unless where it is absolutely necessary to prevent a failure of justice. (?») If it be possible that the matter in question can, by the party who hies the bill, be made the subject of imme- diate judicial investigation, no such is entertained, (c) SECTION II. FRAME OF A BILL TO PERPETUATE TESTIMONY. The bill should state all the material facts which are neces- sary to maintain the jurisdiction. It must, in the first place, state the subject matter, touching which the complainant is desirous of giving evidence, {d) Thus, for example, if the (a) Barton's Suit in Eq. 73 ; Story's Eq. PI. § 300 ; Welf. Eq. PI. 139 ; 3 Barb. Ch. Pr. 136 ; 1 Coop. Eq. PI. 52 ; Mitf. Eq. PI. 148. (6) Bellamy vs. Jones, 8 Ves. 31 ; Shelby vs. , 13 Ves. 56 ; see also Angell vs. Angell, 1 Sim. & Stu. 89. {c) Van Hey. Eq. Drafts. 358. {d) Mitf. Eq. PI. 51 ; Barton's Suit in Eq. 74 ; Allan vs. Allan, 15 Ves. 130 ; Knight vs. Knight, 4 Mad. R. 1. PERPETUATION OF TESTIMONY. 295 Frame of Bill, etc. object of the bill is to perpetuate the testimony of the wit- nesses to a deed respecting real estate, the deed should be properly described, and the names of the witnesses, who are to prove the same, be se't forth. (erpetuate testimony. To the Honorable , Judge of the Court of the County of , in the State of , In Chancery sitting : Your orator, A. B., of, etc., respectfully represents unto your honor, that one C. D., late of, etc., was in his lifetime, and at the time of his death, seized in fee simple of the following de- scribed real property, to wit : {Ilere insert description •) and being of sound mind and memor}-, made his last will and testament in writing, which was duly executed and attested by E. F. and G. H., of, etc., two credible persons, which said will, with the attestation thereof, is in the words and figures following, to-wit : {Here set forth, copy of the vjill, etc. /) as by the said M'ill, when produced in court, will more fully appear. Y^our orator further represents that afterwards, on, etc., the said C. D. departed this life, without revoking or altering his said will, or any part thereof; whereupon your orator by virtue of the said will, became entitled in fee simple to all of the said described premises, subject to the payment of so much of the debts and funeral expenses of the said C. D. as his personal t3state may fall short of paying ; and your orator accordingly, soon after the death of the said C. D. entered into possession of the said premises, and now has the exclusive use and control of the same, Avith the rents and profits thereof. And your orator well hoped that he and his heirs and assigns would have been permitted to enjoy the same quietly, without any inter- ruption from any person whomsoever. But now so it is, may it please your honor, that E. D., of, etc., the defendant herein- after named, who claims to be a brother and heir at law of the iq) Rose vs. Gannell, 3 Atk. R. 439; Vojighan vs. Fitzgerald, 1 Sch. & Lef. 316 ; Jerome vs. Jerome, 5 Conn. R. 352 ; Coop. Eq. PI. 52 ; Story's Eq PI. § 306. (r) Dalton vs. Thompson, 1 Dick. R. 98 ; Story's Eq. PI. ^ 30G; 2 Barb. Cli. Pr. 142. {s) Dew vs. Clark, 1 Sim. & Stu. R. 108 ; Story's Eq. PI. sj 306 : 2 Barb. Ch. Pr. 142; Welf. Eq. PI. 14G. 298 PERPETUATION OF TESTIMONY. Form of Bill — Defenses, and Proceedings. said C. D., pretends that the said C. D. did not make and exe- cute such last will and testament in writing, or that he was not of sound mind and memory at the time of tlie execution there- of, or that the same was not executed in the form and manner i-equired by law ; and therefore he insists that your orator has no right or title to the said premises, or any part of the same> but that on the death of the said C. D. the same descended unto the said E. D., as heir at law of the said C. D. Whereas your orator charges the contrary of such pretenses to be true. Yet the said E. D. refuses to contest the validity of the said will during the lifetime of the subscribing witnesses thereto, and he threatens that he will hereafter dispute the validity of the said will when all the subscribing witnesses are dead, or gone out of the country, whereby your orator and his heirs and assigns will be deprived of the benefit of their testimony. Your orator further represents, that the said E. F. and G. H.» the subscribing witnesses to the said last will and testaments are both aged and infirm, both being above the age of seventy years, and are not likely long to live, and your orator is in danger of being deprived of the benefit of their testimony in relation to the execution of said will, and the state of the mind and memory of the said C. D. deceased. Forasmuch, therefore, as your orator is without remedy in the premises, except in a court of equity ; and to the end that the said E. D., who is made a party defendant to this bill, may be required to make full and direct answer to the same, and show why your orator should not have the testimony of the said witnesses E. F. and G. H. perpetuated ; and that your orator may be at liberty to examine the said witnesses with respect to the execution and attestation of the said will, and the sanity of mind of the said C. D. at the time of the making of the same, so that their testimony may be perpetuated and pre- served. May it please your honor, etc. {1^ ray process as in No. 85y ante, page 209, and add affidavit, as in No. 118, post, 301.) SECTION III. DEFENSES, AND PROCEEDINGS. The defense to a bill to pei-petuate testimony is the same as in other cases, by dennirrer, plea or answer, according to the nature of the case. To a bill to prove a will, and to perpetuate testimony, the defendant may plead that he is a purchaser PERPETUATION OF TESTIMONY. 29^ Defenses to Bill — Demurrer — Answer. without notice of the will, and insist that if the complainant has a title, he may immediately proceed at law. (t) Demurrer. — A demurrer will seldom lie to a bill of this nature, (ii) But if it clearly appears that the jurisdiction does not arise upon the case made by the bill, a demurrer will hold, (v) As where specific allegations of the facts upon which the com- plainant claims the aid of the court are not made by the bill, {w} So if a bill prays relief it will be demurrable, (a?) But it has been held that where relief and discovery prayed by the bill were both demurrable, the defendant could not demur to so much of the bill as sought to perpetuate testimony, (y) If the bill contains matters which may require very different decretal orders as to the publication of the testimony, it will be liable to demurrer, (z) Answer. — An answer may be filed as in other cases. The complainant compels the defendant to answer, and the suit is proceeded with in the usual way, by filing a replication and issuing a commission for the examination of witnesses, {a) If the cause should be improperly brought to a hearing, it will be dismissed. But the depositions taken will still be used as evidence, even though the bill is dismissed. (J) A bill to perpetuate testimony is never brought to a hear- ing, ic) (0 BeddnaU vs. Arnold, 1 Vern. 554; Welf. Eq. PI. 146; Beames on Pleas, 241 ; 2 Barb. Ch. Pr. 142. («) Mitf. Eq. PI. 149 ; 2 Barb. Cla. Pr. 139, 142 ; Welf. Eq. PI. 146 ; Tirrell vs. Cox, 1 Rol. Abr. 383. (y) Mitf. Eq. PI. 149, 150 ; 2 Barb. Cli. Pr. 142; Welf. Eq. PI. 146. {w) Lord North vs. Lady Gray, Dick. R. 14; Angell vs. Angell, 1 Sim. & Stu. 89. (a;) Rose vs. Gannell, Atk. 439 ; Dalton vs. Thomson, Dick. R. 98 ; Jerome vs. Jerome, 5 Conn. 352. iy) Thorpe vs. Macauley, 5 Mad. 218 ; Shackell vs. Macauley, 2 Sim. & Stu. 79. (z) Story's Eq. PI. § 306 ; Vaughan vs. Fitzgerald, 1 Sell. & Lef. 816. (a) 1 Smith, Ch. 365 ; Welf. Eq. PI. 147 ; 2 Barb. Ch. Pr. 143. (6) Hall vs. Uuddcuton, 2 P. Wms. R. 162, 163; Anon. 2 Ves. R. 497; Anon. Amb. R. 237 ; 2 Barb. Ch. Pr. 143. (c) Vaughan vs. Fitzgerald, 1 Sch. & Lef. 316 ; 2 Barb. Ch. Pr. 143. 500 PERPETUATION OF TESTIMONY. Petitions under the Statute — When Proper — Petition. In most of the states bills to perpetuate testimony are seldom resorted to at the present day. The statutes of the different states have generally given a much less expensive and more expeditious method of proceeding to accomplish the object. In Illinois tlie proceeding is by petition, as we shall presently see. SECTION IV. PETiriON TO PERPETUATE TESTIMONY. The statute of Illinois has provided a mode of perpetuating testimony by petition, which, by reason of its being more expeditious and less expensive than proceedings by bill, will be generally resorted to in this state. These statutory pro- visions, while they are no doubt intended as a substitute for a bill to perpetuate testimony, do not seem to have repealed that mode of procedure ; and it may be that a party may pro- ceed in either mode at his option. The statutory remedy is, however, recommended. In what cases proper. — " A petition to perpetuate the remem- brance of any fact, matter or thing, which may relate to the boundaries or improvements of land ; name or former name of water-courses ; the name or former name of any portion or dis- trict of country ; regarding the ancient customs, laws or usages of the inhabitants of any part of this country, as far as the same may relate to the future settlement of the land claims ; or touch- ing the marriage or pedigree of any person or persons, or any other matter or thing necessary to the security of any estate, real, personal or mixed, or any private right whatever, may be "filed in the circuit court of the proper county to take the depo- flitions of witnesses whose evidence is sought to be perpetu- ated." {d) The petition. — " The petition must be supported by affida- vit, and must set forth, briefly and substantially, the interests of the petitioner, his claim or title in or to the subject concern- ed) Laws of 111. 1871-2, p. 414. PERPETUATION OF TESTIMONY. 301 Form of Petition — Affidavit. ing which he desires to perpetuate evidence, the fact intended to be established, and the names of all other persons interested or supposed to be interested therein, and whether there are any persons interested therein whose names are unknown to the petitioner, and the name of the witness proposed to be exam- ined." {e) No. 117. Petition to perpetuate testimony. To the Honorable , Judge of the Circuit Court of the County of , in the State of Illinois : The petitioner, A. B.,of, etc., respectfully represents unto your honor that, etc. {Here set forth, hriejly and suhstantially, the interest of the petitioner.) That, etc. {Here date the substan- tial facts intended to he established.) That, etc. {Here insei't the name and interest of the defendant.) That, etc. {If any person whose name is unknown is interested., here insert the fact, and ?iow.) That the petitioner can prove by H. G. and U. S. G., of, etc., that, etc. {Here insert v:hat the petitioner expects to prove by the wiPnesses.) And that, etc. {It may be well here to state the necessity for perpetuating the testimony^ The petitioner therefore prays that a dedimus potestateni or commission may issue out of this honorable court, to be directed to any competent and disinterested person as commissioner, or to some judge, commissioner of deeds, master in chancery ,^ notary public, clerk of a court, or justice of the peace, in the county of , where such witness resides, authorizing him or them to take the deposition of such witnesses. L. M., Solicitor. A. B. No. 118. Affidv/oit to be attached to petition to perpetuate testimony. State of Illinois, ] County of f * On this day of A. D. 18 — , before me pei'sonally appeared the above named A, B., and made oath that he has read the above and foregoing petition, subscribed by him, (or "heard it read,) and knows the contents thereof; and that the same is true of his own knowledge, except as to the matters which are stated therein to be on his information or belief, and that as to those matters he believes it to be true. R. S., Cleric of the Circuit Court, etc. {e) Laws of 111. 1871-2, p. 414. 302 PERPETUATION OF TESTIMONY. Petitions under the Statute — Proceedings upon. Commission to take deposition.— '■'■ Upon tiling the petition, supported by affidavit, the petitioner may sue out from the circuit court a cledimus potestatem or commission, directed to any competent and disinterested person as commissioner, or to any judge, commissioner of deeds, master in chancery, notary public, clerk of a court, or justice of the peace in the county in which such witness resides, or in which the testimony is to be taken, authorizing him, or them, to take the deposition of such witness. " Several commissions may be issued upon the same petition, to different commissioners or officers, either within or without the state, to take the testimony of different witnesses, or wit- nesses residing in different places, or the same commissioners or officers may proceed from place to place to take the same." Docketing petition. — "Upon the filing of the petition it is required to be docketed by the clerk, as other cases in equity ; the petitioner to be designated as plaintiff, and the persons stated to be interested, as defendants ; and the parties whose names are unknown to be designated as ' unknown owners.' " Notice to parties hefore taking testimony. — " Before taking the testimony of a witness, the person suing out such com- mission shall give to each and every person known to be inter- ested in the subject matter of such testimony, or his attorney, or, if a minor, his guardian, or, if he has no guardian, or if his guardian is interested, to such guardian at litem as shall be appointed by the court, or to his or her conservator, if he or she has one, two weeks' notice, in writing, of the time and place, when and where the testimony will be taken, which notice shall state when and where the petition was filed, the names of the parties and witnesses mentioned in the petition, and a short statement of the subject matter concerning which the testimony is to be taken. " Notice to non-resident parties, or such as cannot be found 80 as to be personally served, and to unknown owners, may be given in the same manner as is provided for notifying non- resident parties in suing out a commission to take testimony in a case pending. PERPETUATION OF TESTIMONY. 303 Petitions under the Statute — Proceedings upon. " When, in the opinion of the court, no sufficient provision is made by law for giving notice to parties adversely interested, the court may order such reasonable notice to be given as it shall deem proper." (/') Manner of taking testimony. — Every person who may think himself interested in the subject of a deposition about to be taken, may attend, by himself or his attorney, at the time and place of taking such testimony, and may examine and cross- examine such deponent ; and all such questions as may be pro- posed, together w^ith the answers thereto by the witness, shall be reduced to writing in the English language, as near as pos- sible in the exact words of such deponent, which said questions and answers, when reduced to writing as aforesaid, shall be dis- tinctly read over to the witness ; and if found to be correct, shall be signed by him in the presence of the commissioner or officer' before whom the same is taken, who shall thereupon administer an oath or affirmation to such witness, as to the truth of the deposition so taken as aforesaid, and shall annex at the foot thereof a certihcate, subscribed by such commis- sioner or officer, stating that it was sworn to and signed by the deponent, and the time and place when and where the same was taken ; and all such depositions, when thus taken, shall be carefully sealed up, and transmitted to the clerk of the circuit court of the cotmty from which such dedimus shall have been issued, within thirty days from the time of taking the same ; who shall thereupon enter the same at large upon the records in his office, and shall certity on the back of such deposition that the same has been duly recorded, and return it to the person for whose benefit it shall have been taken, {g) Depositions may he used as evidence. — "All depositions taken under the provisions of the statute, or a certified copy of the record thereof, may be used as evidence in any case to which the same may relate, in the same manner and subject to (/) Laws of 111. 1871-2, p. 415. ig) Laws of 1871-2. p. 416 304 PERPETUATION OF TESTIMONY. Petitions under the Statute — Proceedings upon. the same conditions and objections as if it had been originally- taken in the suit or proceeding in which it is sought to be used ; and parties uotilied as ' unknown owners,' in the manner hereinbefore provided, shall be bound to the same extent as other parties.*' (//) (A) See 111. Stat. ; Underwood's Stat. 155-156. CHAPTER XXIV. CKOS8-BILL8. Section 1. Nature ok a (Jkoss-bill. , 2. Frame op Bill. 3. When to be Flled. 4. Process Upon. 5. Defenses to. SECTION I. NATUKK OF A OROSS-BILL. A cross-bill inipliet; a bill brought by a defendant in a suit against the complainant in the same suit, or against other defendants in the same suit, or against both, touching the matters in question in the original bill, {a) It is of a mixed character, partaking partly of the character of an original bill, and partly of that of bills not original, and is generally con- sidered a defense. (J) Whenever it is necessary to bring all the equities of all the parties fully before the court, that even and complete equity may be done, as well in favor of the defendant as of the com- plainant, it becomes necessary to file a cross-bill ; and this may be done by any or all the defendants, against all or any of the complainants, or by a defendant against his co-defendants, or a part of them, as the nature of the case may require, (e) Where the defendants rely on their answer al<»ne, they can (a) Story's Eq. PI. § 389 : Welf. Eq. PI. 229 ; Coop. Eq. PI. 62 ; Mitf. Eq. PI. 80. (ft) Newbury vs. Wren, 1 Vern. 221 ; Piggott vs. Williams, 6 Mad. 95 ; Hil- ton vs. Barrow, 1 Ves. .Ir. 284; Parker vs. Leigh, 6 Mad. 115; Welf. Eq. PI. 223. (c) Ballance v.s. UnderhiU, 3 Scam. 453 ; 1 Smitli'e Ch. Pr. 459 ; Mitf. Eq. PI. 75, 76 ; Grutchfield vs. Patten, 44 Geo. 65 ; Oilmer vs. Felhoun, 45 Miea. 627 ; Mereier vs. Lem,?, 39 Cal. 532. 20 306 CROSS-BILLS. Nature of. only use the equity of their case for the purpose of defense ; but if they wish to become the assailants, and seek affirmative relief, tiiey must file their cross-bill ; and in this way, and this alone, are they permitted to use their equity as a weapon of attack, {d) A cross-bill must be germane to the subject matter of the original bill, and no foreign matter can be introduced, (e) And it cannot contradict the allegations of the answer filed to the original bill. {/) A cross-bill will not be entertained if the matter of it can be made available under the original bill, {g) The necessity of a cross-bill for relief occurs, when the de- fendant seeks relief in reference to the subject matter of the original bill ; as he can only obtain affirmative relief in that way. (A) And if the matter of defense arises after the cause is at issue, or that the complainant has given a release, or that there has been an award made on a reference after issue joined, which at law may be pleaded puis darrein con- tinuance ; a defendant cannot avail himself of either, by plea or answer, and therefore must resort to a cross-bill, {i) In a suit to enforce a claim of dower in lands against one holding the legal title, the defendant cannot obtain affirma- tive relief upon an equitable lien upon the premise, except {d) lb. ; Tarleton vs. Vietes, 1 Gilm. 470 ; Fletcher vs. Wilson, 1 S. & M. Cb. 376 ; Galatian vs. Ericin, Hopk. 48. (e) Hurd vs. Case, 32 111. 45 ; Jones vs. Smith, 14 111. 229 ; Chicago Arte- sian Well Co. vs. Conn. M. Life Ins. Co. 57 111. 424. (/) Hudson vs. Hudson, 3 Rand. 117. (g) JBroicn vs. Bell, 4 Hey. 287 ; N. Y. Dry Dock Co. vs. Am. Life Ins. Co. 3 Sandf. Ch. 273 : Story's Eq. PI. § 389 ; Morgan vs. Smith, 11 111. 195. (h) Tarleton vs. Vietes, 1 Gilm. 470 ; Ballance vs. Underhill, 3 Scam. 45:5 ; Atkin vs. Merrell, 39 111. 63 ; Stone vs. Smoot, 39 111. 409 ; McCagg vs. HeOr cock, 42 111. 153 ; Hanna vs. Batckin, 4S 111. 462 ; Croskey vs. Northern Manuf. Co. 48 111. 481 ; Tittsicorth ve. Stout, 49 111. 78; Hmcett vs. Selby, 54 111. 151 ; Carnochan vs. Cliristie, 11 Wheat. 446 ; Culluvi vs. Erwin, 4 Ala. 452 ; Cloxid vs. Hamilton. 3 Terg. 81 ; Schwarz vs. Sears, Walk. Ch. 170. ' (i) Ferris vs. McClure, 30 111. 77 ; Inglehart vs. Crane, 42 111. 262 ; Taylor ve. Titus, 2 Edw. Ch. 135 ; Barrington ve. O'Brien, 2 Ball & Beat. 140; see Kelsey vs. Hobby, 16 Pet. 269 ; National Bank vs. Sprague, 21 N. J. Eq. 530. CROSS-BILLS. 307 Nature of — Frame of BiU. by means of a cross-bill, {j) It is a proper proceeding to obtain an equitable set-off. (k) A cross-bill is generally considered a defense ; (Z) and the original cause and the cross-bill are but one cause, {m) It is 80 effectually a defense, that if a cross-bill is taken as con- fessed, it may be used as evidence against the complainant in the original suit, on the hearing ; and will have the same effect as if he had admitted the facts in an answer. (71) New parties may be brought in by cross-bill, who were not parties to the original bill, (o) But persons not made parties defendants in the original bill have no right to file a cross-bill ; but where one is tiled without objection by the complainant, who answers it, such bill will not be dismissed before the final hearing, {p) SECTION II. FKAME OF BILL. Generally, a cross-bill should state the parties, prayer, and objects of the original bill, the proceedings thereon, and the rights of the party exhibiting the bill, which are necessary to be made the subject of cross-litigation ; or the ground on which he resists the claims of the complainant in the original bill, if that is the object of the new bill. A cross-bill should not introduce new and distinct matters, not embraced in the orig- inal suit ; for as to such matters it is an original bill, and they cannot properly be examined at the hearing of the first suit, {q) 0'} Aiken vs. Merrel, 39 111. 63. (k) CartmrigJit vs. Clark, 4 Met. 104. (I) Newbury \s.Wren, 1 Vern. 221 ; Field vs. ScMeffelin, 7 Johns. Ch. R. 252 ; Oalatian vs. Erwin, Hopk. Ch. 48. (m) Field vs. ScMeffelin, 7 Johns. Ch. E. 252. (/i) White vs. Buloid, 2 Paige, Ch. 164; 2 Barb. Ch. Pr. 127 ; Story's Eq. PI." § 399. (o) Hurd vs. Case, 32 III. 45 ; Jones vs. Smith, 14 111. 229. (p) Payne vs. C&ican, 1 S. & M. Ch. 26. (g) Story's Eq. PI. §401 ; Mitf. Eq. PI. 81 ; Coop. Eq. PI. 88 ; Welf. Eq. PL 228 ; May vs. Armstrong, 3 J. J. Marsh. 262 ; Galatian vs. Ericin, Hopk. 48; Hudson ys. Hudson, 3 Rand. 117; Hurd vs. Case, 32 111. 45,49; Jonex vg. Smith, 14 111. 229 ; Fletcher vs. Wilson, 1 S. d: M. Ch. 376 ; Cross vs. De ValU. 1 Wall. U. S. 1. 308 CROSS-BILLS. Frame of — Form of, etc. And it is said that a cross-bill need not, as against the com plainant in the original bill, show any equity to support the jurisdiction, (r) When the bill is brought by one defendant upon a question between two defendants, the complainant to the original bill must be a pai-ty. (s) A cross-bill to have usurious securities delivered up must offer to pay what is due. (t) The Chancery Practice Act of Illinois provides, that " it shall not be necessary to recite in a cross-bill any of the pleadings or proceedings in the case in which it is filed ; and it shall not be necessary to pray process except against new parties." {u) JVo. 119. Cross-hill to a fareclosure suit. To the Honorable , Judge of the Court of the County of , in the State of , In Chancery sitting : Your orator, A. 13., of, etc., respectfully represents unto your honor, that on, etc., C. D., of, etc., one of the defendants hereinafter named, exhibited in this honorable court his bill of complaint, against one E. F., of, etc., a defendant hereinafter named, and your orator, to foreclose a mortgage therein de- scribed, and thereby praying that an account may be taken in that behalf, and that the defendant, E. F., be decreed to pay the said C. D. whatever sum should appear to be due to him, to- gether M-ith the costs of that proceeding, by a short day to be fixed by the court ; and that in default of such payment, the said mortgage property raa^^ be sold as directed by the court, to satisfy such debt and costs; and that in case of such sale and a failure to redeem therefrom pursuant to law, the said E. F. and your orator, the defendants to said bill, and all persons claiming through or under them, after the commencement of said proceeding, may be forever barred and foreclosed of all right or equity of redemption of the said mortgaged property ; and that the said C. D. may have such other and further relief (r) DohU vs. Potman, Hardr. 160; Burfjessxs. WJtkate, 1 Blacks. 133; Mason vs. Gardiner, 4 Bro. C. C. 437 ; Calverlcj/ vs. Williams, 1 Ves. Jr. 211, 213. (s) Coop. Eq. PI. 85 ; Welf. Eq. PI. 229 ; IMitf. Eq. PI. 81. (t) Mason vs. Oardiner, 4 Bro. C. 0. 437. {u) Underwood's .Smt 72. CROSS-BILLS. ' 309 Fonn of. as equity may require and to your houor shall seem meet; and your orator being duly served with process, appeared and put in his answer thereto, as by the said bill, and other pleadings and proceedings in the said cause, now remaining on tile and of record in this honorable court, reference thereto being had, will more fully appear. Your orator further represents unto your honor that, on, etc., and prior to the date of the execution of the said mortgage from the said E. F. to the said C. D., the said E. F. being in- debted to your orator in the sum of dollars, made and delivered to your orator his certain promissory note of that date, and thereby promised to pay your orator the said sum ot dollars, on, etc., {descrihe tJte note) as will appear by the said note, ready to be produced in court, and by a copy of the same hereto attached, and marked "Exhibit A," which is hereby made a part of this, your orators cross-bill. Your orator further represents, that to secure the payment ot the principal sum and interest mentioned in said promissory note, the said E. F., on, etc., by his mortgage deed of that date, conveyed to your orator, in fee simple, that certain parcel ot land, with the appurtenances, in the said county of , to wit : {Here desorlhe the vtortgaged premises) subject, however, to a condition of defeasance upon the payment of the principal sum and interest aforesaid, according to the tenor and effect ot the said promissory note, which said mortgage deed was on, etc., duly acknowledged ; and afterwards, (and before the exe- cution and delivery of the mortgage deed to the said C. D.) on, etc., the said mortgage deed to your orator was duly tiled for record in the recorder's otfice of tlie county of aforesaid ; as by the said mortgage deed and its accompanying certiticates ot acknowledgment and recording, ready to be produced in comt, will more fully appear. A copy of the said mortgage deed and certiticates, marked '• Exhibit B," is hereto attached, and is hereby made a part of this bill. Your orator further represents that the lien of your orator's said mortgage deed is superior and prior to that of the said C D. ; and that the said E. F. has not yet paid the said princi- pal sum and interest, so due your orator, or any part thereof, although the same long since became due ; by means whereof the said mortgaged premises have become forfeited, subject, nevertheless, to redemption in equity by the said E. F. and C. D., or their assigns. Forasmuch, therefore, as your orator is without remedy in the premises, except by filing this his cross-bill, in the said proceedings commenced by the said C. D. against your orator 310 CROSS-BILLS. Forms of. and the said E. F. ; and to the end that the said C. D. and E. F., who are hereb}^ made parties defendant to this cross- bill, may be required to make lull and direct answer to the same, hut not under oath, the answer under oath being hereby waived, that an account may be taken by or under, the direc- tion of the court, of the amount due your orator upon said promissory note and mortgage deed ; that the defendant, E. F., may be decreed to pay to your orator whatever sum shall, appear to be due- to him upon the taking of such account, together with the costs of this proceeding, by a short day to be" fixed by the court ; that in default of such payment the said mortgaged premises may be sold as this honorable court shall direct, "to satisfy such debt and costs; that in case of such sale, and of a failure to redeem therefrom pursuant to law, that the defendants, and all persons claiming through or under them, after the commencement of this proceeding, may be forever barred and foreclosed of all right or equity of redemp- tion of the said mortgaged premises ; and that your orator may have such further and other relief in the premises as the nature of his case shall require and to your honor shall seem meet. (7/^ any new parties are introduced, add prayer for pi'ocess as ante, No. 85, page '209, and attach exhibits.) 1^0. IW. Cross-bill in the 7iature of a p>lea j)uis darrein continuance. To the Honorable , Judge of the Court of the County of , in the State of , In Chancery sitting : Your orator, A. B., of, etc., respectfully represents unto your honor, that on, etc., C. D., of, etc., the defendant hereinafter named, filed his bill of complaint in this honorable court against your orator, thereby praying, etc., {Ilere state the prayer of the bill-) and your orator, being duly served with process, appeared and put in his answer thereto, to which answer the said C. D. filed a I'cplication ; and issue being thus joined, testimony was taken on both sides, and the proofs closed ; whereupon the said cause was set down for hearing, as by the said bill, and other pleadings and proceedings in the said cause, now remaining as of record in this honorable court, reference being thereto had, will more fully appear. Your orator further represents, that the said cause has not yet been heard ; and on, etc., the said C. D., by a certain writ- ing of release, of that date, did remise, release and forever quit- claim unto your orator, his heirs, executors and administrators, CROSS-BILLS. 311 Forms of. the several matters and things complained of in and by the said bill of the said C. D., and in question in the said suit, and each and every of them, and of all sums of money then due and owing, or thereafter to become due and owing, together with all, and all manner of actions, causes of actions, suits, and demands whatsoever, both at law and in equity, or otherwise howsoever, which he the said C. D. then had, or which he should or might at any time or times thereafter have, claim, allege, or demand, against your orator, for, or by reason or means of any matter, cause or thing whatsoever, from the beginning of the world to the day of the date of the said deed or writing of release ; as by the said release, reference thereunto being had, and a copy of the same hereto attached, marked '"Exhibit A," and made a part of this bill, will more fully appear. And your orator hoped that in consequence of the said release, the said C. D. would not have proceeded in the said suit against your orator ; but the said C. D., notwithstanding the said release, threatens and intends to proceed in the said suit, and to bring the same on for hearing in due course ; and he pretends that no such release was ever executed by him, or if so, that the same was obtained by fraud and surprise, and therefore void. Whereas your orator charges that the same was, in every respect, fairly and properly obtained by your orator, and duly executed by the said C. D. And your orator further represents, that under the circum- stances aforesaid, he is unable to put the said release in issue, or to use the same as a plea in bar of the said suit. Forasmuch, therefore, as your orator is without remedy in the premises, except in a court of equity ; and to the end that the said C. D., who is made a party defendant to this cross-bill, may be required to make full and direct answer to the same, hut not under oath, the answer under oath heing hereby waived; and that the said release may be established and declared by this honorable court a sufficient bar to any further proceedings by the said C. D. in the said suit ; and that the bill of the said C. D. thei'ein, may, under the circumstances, be forthwith dis- missed with costs ; and that your orator may have such other and further relief in the premises as equity may require and to your honor shall seem meet. {If 7iew parties are added, pray process as in JVo. 85, ante, page 209, and attach ''Exhibit J..") , 312 CROSS-BILLS. When to be Filed. SECTION III. WHEN TO BE FILED. The proper time for filing a cross-bill, when such a bill is necessary, is at the time of putting in the answer to the original bill, and before issue is joined by the filing of a repli- cation, {v) As the matters of defense upon which a cross-bill is founded must be stated in the answer to the original bill, as well as in the cross-bill, it can seldom be necessary to delay the filing of the cross-bill till after the original cause is at issue. {20) But the rule that a cross-bill should be tiled at the same time with the answer, does not apply to such a bill by one defendant against a co-defendant, for the reason that, until the answers are tiled, neither defendant can know what defense the other will set up. (a?) A defendant desiring to file a cross-bill should do so without delay, and have the same at issue, if practicable, so as to be heard with the original bill. If he desires further time, he must seek it as a matter of indulgence, (y) The proceedings in the original suit will not be delayed, unless on the special order of court, founded upon notice of the application to tlte adverse party, {z) The defendant cannot claim, as a matter of right, a continu- ance, where the original cause is ripe for hearing, by filing a cross-bill, and having the same answered, without showing sufiicient cause for delay, {a) To entitle him to a delay of the original proceedings, the cross-bill must be sworn to positively, {v) Irving vs. DeKay, 10 Paige, Ch. R. 319 ; Wiley vs. Platter, 17 111. 540. iw) 2 Barb. Ch. Pr. 129. (x) Vandervcer vs. Holcomh, 21 N. J. Eq. 105; see Berryman vs. OraJiam, lb. 370. (y) Beauchamp vs. Pntman, 34 111. 378 ; Reed vs. Kempf, 16 111. 445 ; Youngs vs. Overseers etc. 2 Green, N. J. 521. z) Cartwright vs. Clark, 4 Met. lO-f ; Field vs. Schieffelin, 7 Johns. Ch. 250; White vs. Buloid, 2 Paige, Ch. 104; Coleman vs. Moore, 3 Litt. 355; BeaucJiamp vs. Putman, 34 111. 378 (a) WUey vs. PUttter, 17 111. 538 ; see Reed vs. Ktmpf, 16 111. 448. CR0SS-BILL8. 31S Leave to File — Process upon. either by the complainant thereto or by the. person from whom his information of the facte was derived. (Jj The court itself will sometimes, in its discretion, where it appears that the suit is insufficient to bring before the court the rights of all the parties, and the matters necessary to a just determination of the cause, at the hearing, direct a cross-bill to be filed, (c) Leave to file. — A defendant cannot file a cross-bill before the original bill is answered, {d) And then only upon leave ob- tained from the court for that purpose, {e) In Illinois it is held that the filing of a cross-bill is a matter of right and requires no leave, but it does not necessarily stay the original cause, {f) SECTION IV. PROCESS UPON. By the statute of Illinois, it is provided that " where it is necessary for the defendant to bring a new party before the court, he shall state it in his cross-bill ; and a summons shall be issued, and other proceedings had, as in the case of other defendants.'* [g] This was the rule independent of such statute and before its passage, {h) As against the parties to the orig- inal bill, no process is necessary, {i) In Kentucky it is held that process must issue on the filing of the cross-bill, or the defendants are not bound to notice it. ij) (b) Talmage vs. Pell, 9 Paige, Ch. 410; Irving vs. DeKay, 10 Paige, Ch. 319. (c) Meld vs. Scliieffelin, 7 Johns. Ch. 250 ; Latottche vs. Dunsanep, 1 Sch. & Lef. 137 ; Story's Eq. PI. i^ 300 ; Mitf. Eq. PI. 82, 83. (d) Allen vs. Alleyi, Hemp. 58. (e) Branson vs. LaCrosse & Milwaukee R. R. Co. 2 Wall. U. S. 283. (/) Beauchamp vs. Pntman, 34 111. 378 ; Jones vs. Smith, U 111. 229 ; W. U. Teleg. Co. vs. P. & A. Teleg. CoAQ 111. 90. 07) Laws of 1872, p. 334 ; Underv?ood's Stat. 72. (h) Jones vs. Smith, 14 111. 229 ; Uurd vs. Case, 32 111. 45. (i) Underwood's Stat. 72; Fleece vs. Russell, 13 111. 31. ( j) Miles vs. Bacon, 4 J. J. Marsh. 457 ; Ward vs. Davidson, 2 lb. 443 ; Garner vs. Beaty, 7 lb. 223 ; Talbot vs. McOhte, 4 Monr. 375; Anderson vs. Ward, 6 Monr. 419. 314 CROSS-BILLS. Defenses to — Demurrer. SECTION V. DEFENSES TO. Demurrer. — A demurrer for want of equity will not lie to a cross-bill tiled by a defendant in a suit against the complain- ant in the same suit, touching the same matter. For being drawn into court by the complainant in the original bill, he may avail himself of the assistance of the court without being put to show a ground of equity to support its jurisdiction. (^) Where a cross-bill seeks relief which is of an equitable nature, it should contain all proper allegations which confer an equit- able title to such relief upon the party ; otherwise it will be open to demurrer. Thus where an original bill was filed to enforce a security, and the defendant filed a cross-bill to have the security delivered up as a usurious security, and the cross-bill did not ofler to pay the sum really due, a demurrer was alloAved. (Z) If a cross-bill is not confined to the matters in litigation in the original suit, but seeks to bring before the court other dis- tinct matters and rights, it is no longer entitled to be deemed a cross-bill, but is an original suit, and, it seems, a demurrer would lie. (m) So, if a cross-bill is filed contrary to the prac- tice of the court, and under circumstances in which a pure bill of this nature is not allowed, or if it seeks to bring into ques- tion facts which the party has admitted in his answer to the original bill, it is open to a demurrer, in) (k) Doble vs. Potman, Hardr. 160; Coop. Eq. PI. 81, 215; Mitf. Eq. PI. 203 ; 2 Barb. Ch. Pr. 133. (Z) Mason vs. Oardiner, 4 Bro. C. C. 436 ; Busfield vs. Solomons, 9 Ves. Si ; Hickson vs. Aylward, 3 Molloy, 1 ; Welf. Eq. PI. 230 ; Oalatian vs. Erwin, Hopk. 48, 59 ; .9. C. 8 Cowen, 561. (m) Welf. Eq. PI. 230 ; 2 Barb. Cb. Pr. 133. (n) Story's Eq. PI. ij 628-633 ; Coop. Eq. PI. 87; 2 Barb. Ch. Pr. 133; Welf. Eq. PI. 230 ; Berkley vs. Ryder, 2 Ves. 533, 537 ; 1 Mont. Eq. PI. 328 ; White vs. Buloid, 2 Paige, Ch. R. 164; Field vs. Schieffelin, 7 Johns. Ch. 250 ; Holhrook vs. Pretty man, 44 111. 311. CROSS-BILLS. 315 Defenses to — Pleas — Answer. Pleas. — A plea to the person of the complainant does not lie to a cross-bill, unless it is exhibited by a person incapable alone to institute a suit ; nor does a plea to the jurisdiction to such a bill ; for the defendant, by filing his original bill, has affirmed the sufficiency both of the person and the jurisdiction, {o) Neither can a cross-bill, though between the same parties, as an original suit, be met by a plea of a suit for the same object pending in a court of concurrent jurisdiction ; thus, after a bill brought in the exchequer to foreclose a mortgage, it was held that a de- fendant may bring a bill in the court of chancery to redeem, and the pendency of the former suit is not pleadable, {p) In all other respects cross-bills are liable to all the pleas in bar, to which original bills are liable ; and the converse is equally true, that a cross-bill is not liable to any plea which will not hold to an original bill. And, as it seems, that a de- fendant cannot, by a cross-bill, compel the complainant in the original to make discovery of the defendant's title, the objec tion may be taken by plea ; and it may also be insisted on by answer, (q) ATisvjer. — The rules relatinor to answers to original bills, apply fully to answers to cross-bills. It is to be observed, however, that the complainant in the original bill has the right to the first answer ; and may move to stay proceedings in the cross-suit until the original bill is answered, {r) And the com- plainant in the original suit does not waive his right to an answer bv obtaining an order for time to answer the cross- bill, (.s) (o) Welf. Eq. PI. 229 ; Mitf. Eq. PI. 290, 291 ; Coop. Eq. PI. 304 ; Beames, PI. in Eq. 302, 3 r-: ; 2 Barb. CL. Pr. 132. (p) LordNewburghYs. TFre?i,l Vern. 220 ; 2Dan.Ch. Pr.l48; Welf. Eq. PI. 329. (q) Bellwood vs. Wethcrell, 1 Tounge k Coll. 211 ; Glegg vs. Legh, 1 Bligh, N. S. 302 ; Cherry vs. Legh, lb. 306 ; Welf. Eq. PI. 230 ; 2 Barb. Ch. 132. 133. (r) Harris vs. Harris, Tur. & Russ. 165 ; Wigley vs. Whitaker, 1 Beavan, 349. («) 2 Barb. CL. Pr. 134; see Ramkissenseat vs. Barker. 1 Atk. 20. 310 CROSS-BILLlS. Proceedings upon. SECTION VI. PKOCEEDINGS UPON. The complainant in the original suit is not compelled in any case to stay proceedings therein upon the filing of a cross-bill, except by a special order of the court. And it is not a matter of course for the court to stay the proceedings in the original suit, in any case, except where the defendant in the cross suit is in contempt for not answering, {t) If the complainant in the cross-bill desires to have the proceedings iu the original suit stayed, the cross-bill should be sworn to, (u) by some person who knows the facts, {v) A final decree upon the filing of a cross-bill, granting the relief thereby sought, cannot be rendered in the absence of an answer, unless steps have been taken to place the defendants in default, (w) After both causes are at issue or in a situation to be heard, the complainant in the cross suit may have an order that they be heard together. But the delay of the complainant in the cross suit will not be permitted to delay the hearing of the original cause, (a?) . An order should be obtained, when both causes are ready, that they be brought on for hearing together, (y) (t) WMte vs. Buloid,2 Paige, Ch. 164. {u) lb. ; 2 Barb. Ch. Pr. 134. (v) Talmage vs. Pell, 9 Paige, Ch. 410. (w) West. Un. Teleg. Co. vs. P. & A. Teleg. Co. 49 111. 90. (x) White vs. Buloid, 2 Paige, Ch. 164. (y) 2 Barb. Ch. Pr. 135 ; Hindes, Pr. 54. CHAPTER XXV. BILLS FOK SPECIFIC PERFORM .-VNCE. Section 1. Nature ok, and When Puoper. 3. Parties to. 3. Frame of Bill. 4. Decree. SECTION I. NATURE OF, AND WHEN PROPER. The essential conditions of a contract which will be specific- ally enforced in a court of equity are. that the contract must be made between competent parties ; it must be entered into willingly ; the terms must be understood by the parties, and be certain and defined ; the consideration must be valua- ble ; there must be mutuality of consideration and remedy ; it must be properly proved ; the party seeking its performance, must fulfill his obligations under it ; it must be such as the court can enforce ; it mnst be one proper to be executed ; it must be one on which there is not an adequate remedy at law ; it must not be an unreasonable contract, on which there might be a remedy, at la^w ; and the conduct of the party seeking the per- formance must have been correct, (a) A court of equity will often refuse to enforce a contract which it would also refuse to annul, and will leave the parties to their remedy at law. {h) A specific performance rests in the sound discretion of the court, under all the circumstances of the particular case ; (c) (a) Batten on Spec. Perf. of Cent. ; see Tayl&r vs. Merrill, 55 III. 52 ; Mtch vs. Boyd, Id. 307. (6) Jackson vs. Ashton, 11 Pet. 229 ; Seymour vs. Belancey, 6 Johns. Oh. R. 222 ; Glitherall vs. Ogilvie, 1 Dessau. 250; Barksdnle \s. Payne, Riley, Ch. 174; Oasque vs. Small, 2 Strobh. Eq. 72; Henderson vs. ffays, 2 Watts, 148. (c) McNeil vs. Magee, 5 Mason, 244; King vs. Hamilton, 4 Pet. 311; McComas vs. Easley, 21 Qratt. Va. 23 ; HaJe \».Wilkinson, Id. 75 ; Wynn vs. Smith, 40 Geo. 457. 318 BILLS FOR SPECIFIC PERFORMANCE. Nature of, and When Proper. and it is not decreed where there has been long delay, or IxtcheSy or a material change of circumstances, (c?) The discretion of the court is not, however, an arbitrary one, but is regulated by rules and principles, {e) The contract must be free from fraud or surprise, and fair and just in all its parts, or the complainant will be left to his remedy at law. {f) And a performance will not be decreed- on an imperfect, inchoate, or hard bargain, {g) There must also be mutuality and reciprocity of obligation. (A) A court of equity will not decree the specific performance of a contract, the consideration of which is a wager upon an election. {%) Upon principles of natural justice, a person ought not to be compelled to part with his title to land until he has received the amount which he had contracted to take for it, nor should (d) Pigg vs. Corder, 12 Leigh, 69 ; Rector vs. Rector, 3 Gilm. 105 j Milnor vs. Willard, 34 111. 38; Hough vs. Cotighlan, 41 111. 130; Thompson vs. Bruen, 46 111. 125 ; Fitch vs. Boyd,55 111. 307 ; Iglehart vs. Gibson, 56 111. 81 ; Holt vs. Rogers, 8 Pet. 420 ; Houghton vs. Miirphy, 21 N. J. Eq. 118 • Harkness ve. Underhill, 1 Black, SIQ ; Johns vs. Norris, 22 N. J. Eq. 102* Norris vs. Knox, 1 Pittsb. Pa. R. 56. (e) Griffith vs. Frederick Co. Bank, 6 Gill & J. 424 ; Quinn vs. Roath, 37 Conn. 16 ; Meeker vs. Meeker, 16 Conn. 403 ; Seymour vs. Delancey, 3 Cow. 445 ; 8. C. 6 Johns. Ch. R. 222 ; King vs. Morford, Saxton, 274 ; Anthony v s Leftuick, 3 Rand. 238 ; Prater vs. Miller, 3 Hawks, 629 ; Turner vs. Qay, 3. Bibb, 52 ; Frishie vs. Ballance, 4 Scam. 287 ; Broadwell vs. Broadwell, 1 Gilm. 599 ; Dougherty vs. Hampston, 2 Blackf. 273 ; Leigh vs. Crump, 1 Ired. Ch. 299 ; Gould vs. Womack, 2 Ala. 83 ; Hester vs. Hooker, 7 S. & M, 768 ; Tohey vs. County of Bristol, 3 Story, 800 ; Clement vs. Reid, 9 S. & M. 535 ; Tyson vs.Watts, 1 Md. Ch. Decis. 13. (/) Seymour vs. Delancey, 3 Cow. 445 ; GriffitJi vs. Frederick Co. Bank, 6 Gill & J. 424 ; Borten vs. Sc7ieffer, 21 Gratt. Va. 474 ; Modesett vs. Johnson, 2 Blackf. 431 ; Johnson vs. Dodge, 17 111. 433 ; Lear vs. Choteau, 23 111. 39 ; Boomer vs. Cunningham, 22 111. 320 ; Taylor vs. Merrill, 55 111. 52 ; Lee vs. Kirhy, 104 Mass. 420. (g) Ohio vs. Baum, 6 Ham. 383 ; McClellan vs. Darrah, 50 111. 249. (A) McMurtrie vs. Bennett, Harring. Ch. 124 ; Hawlty vs. Sheldon, Id. 420; Hutchenson vs. McNutt, 1 Ham. 14 ; Cabeen vs. Gordon, 1 Hill,Ch. 51 ; Bene- diet vs. Lynch, 1 Johns. Ch. R. 370 ; Ohio vs. Baum, 6 Ham. 383 ; Marble Co. vs. Ripley, 10 Wallace, 339 ; Ewins vs. Gordon, 49 N. H. 444. (i) McClurken vs. Detrich, 33 111. 349. BILLS FOR SPECIFIC PERFORMANCE. 31» Nature of, and When Proper. a person receive a title until he has paid what he agreed to pay for it. (J) Where a party has failed without sufficient excuse, to execute his part of the contract, and there has been no acquiescence in the delay, by the other party, the court will not decree specific per- formance. But if one party has been prevented, by any good cause, from performing his part of the agreement, at the stipu- lated time, and the other party has suffered no material injury by the delay, the court will not refuse its aid. {k) A party seeking the specific performance of a contract for the sale and conveyance of a tract of land, cannot excuse him- self for not tendering the purchase money when due, upon the ground that the vendor has conveyed the land to a third person. (T) A party cannot compel the specific performance of a contract, unless he shows that he himself has specifically performed, or can justly account for the reason of his non-performance, {m^ He must show that he has not been in lault, but has taken all proper steps toward performance on his part, and has been ready, desirous, and prompt, to perform, {ri) If one party has been in default, and specific execution would be injurious to the other party, it will not be decreed, {d) But a failure to perform a merely nugatory act, is not material, (ji?) {j) Allison vs. Clarh, Breese, 348 ; Doyle vs. Teas, 4 Scam. 202 ; Ishmeal vs. Parker, 13 111. 324. (k) Longworth vs. Taylor, 1 McLean, 395 ; White vs. Law, 7 Vt. 357 Cleveland vs. Benton, 11 Vt. 138; Goodell vs. Field, 15 Vt. 448; Hatch vs Cobb, 4 Johns. Ch. R. 559 ; Lems vs.Woods, 4 How. Miss. 86. if) Boyle vs. Teas, 4 Scam. 202 ; see Shortall vs. Mtchdl, 57 111. 161. (to) Scott vs. Shepherd, 3 Gilm. 483 ; Brown vs. Cannon, 5 Gilm. 174 Warren \s. Richmond, 53 111.52; Walts vs. Waddle, 6 Pet. 389; Greenup vs. Strong, 1 Bibb, 590; Bearden \s.Wood, 1 A. K. Marsh. 450; Logan vs McChord, Id. 224 ; Moore vs. Skidmore, 6 Litt. 453 ; Clay vs. Turner, 3 Bibb 52; Ljlehart vs. Gibson, 56 111. 81; Crane vs. Decamp, 21 N. J. Eq. 414 Howe vs. Rogers, 32 Texas, 218. (w) Rogers vs. Saunders, 16 Maine, 92 ; Brown vs. Haines, 12 Ohio, 1; Doyie vs. Teas, 4 Scam. 202 ; Kendall vs. Ahny, 2 Sumner, 278. (o) Vail vs. Nelson, 4 Band. 478 ; Brashier vs. Gratz, 6 Wheat. 528 ; see Taylor vs. Longworth, 14 Pet. 172 ; AM vs. Johnson, 20 How. U. S. 511. (p) Coale vs. Barney, 1 Gill & J. 324. 320 BILLS FOR SPECIFIC PERFORMANCE. Nature of, and When Proper. Although great lapse of time will not be a bar, where the complainant has been in no default, and has been reasonably active during the whole time, in asserting his rights, and endeavoring to enforce performance ; {q) yet, where no effort had been made by a vendee in liis lifetime, nor by his heirs, lifter his death, until twenty-nine years had elapsed, and the land had risen in value, and other circumstances had occurred, the lapse of time was held a conclusive bar. (r) On the gen- eral subject of delay, the cases cited in the note below are important, (s) In an ordinary contract for the sale of land, where credit is given and a conveyance is to be made on the payment of the last installment, where time is not expressly the essence of the contract, a court of chancery may, in its discretion, enforce the performance of such a contract, although the payments may not have been promptly made. But in so doing the court will inquire into all the circumstances attending the delay, and the conduct of the parties, (t) Chancery has no power to enforce a specific execution of a contract contrary to the clearly expressed intention of the parties, (u) (q) Coulson vs. Walton, 'J Pet. 62. (r) Holt vs. Rogers, 8 Pet. 420. («) Pratt vs. Carroll, 8 Cranch, 471 ; Williams vs. Mattocks, 3 Vt. 189 ; Miller vs. Bear, 3 Paige, Ch. R. 466 ; Waters vs. Travis, 9 Johns. R. 450 ; Jackson vs. Edwa-rds, 22 Wend. 498 ; Smedlep vs. Moore, 26 Wend. 238 ; I^ew BoA'hadoes Toll Bridge vs. Vreeland, 3 Green, Ch. 157 ; Haffner vs. Dickson, 2 Har. & J. 46 ; Richardson vs. Baker, 5 Call. 514 ; Williams vs. Lavis, 5 Leigh, 686; McGalliard vs. Aiken, 2 Ired. Cli. 186; FoUk vs. Carpenter, 1 Dev. & Bat. Ch. 237 ; Strickland vb. Fowler, Id. 629 ; Osborne vs. Bremar, 1 Dessau. 486 ; Koen vs. WJiite, Meigs, 358 ; Craig vs. Leiper, 2 Terg. 193 ; Bracken vs. Martin, 3 Id. 55 ; Childress vs. Holland, 3 Hey. 274 ; McMillin vs. McMillin, 7 Monr. 560 ; Johnston vs. Mitchell, 1 A. K. Marsh. 225 ; Logan vs. McChord, 2 Id. 224 ; Eubank vs. Ha/mpton, 1 Dana, 343 ; Broaddvs vs. Ward, 8 Mo. 217 ; Scott vs. Barker, 14 Ohio, 547 ; Mason vs. Wallace, 3 McLean, 148 ; Tiernan VB. Roland, 3 Harris, 429; Be Cordova vs. Smith, 9 Texas, 129; Smith vs. Hampton, 13 Id. 459; Milnor vs. WiUard,M 111. 38; Rose vs. Swan, 56 III. 37. (t) Glover vs. Fisher, 11 111. 666; Murphy vs. Lockwood, 21 111. 615; Snyder vs. Spazdding, 57 111. 480 ; Mason vs. Wallace, 3 McLean, 148 ; 5. C. 4 McLean, 77. («) Kemp vs. Humphreys, 13 111. 573 ; Stow vs. RoUnson, 24 111. 532. BILLS FOR SPECIFIC PERFORMANCE. 321 Nature of, and When Proper. It is a general rule, that the terms of the contract must be clear, definite, and positive, and its terms must be such that neither party could reasonably misunderstand them ; nor should it be vague or uncertain in any of its essential particulars, (v) Where a party has so far performed his part of a contract, that he cannot be put in static quo, he is entitled to a specific pei-formance, and it is not necessary to show a literal perform- ance on his part, unless such performance goes to the essence ot the contract, (w) Where specific performance has become impossible, as from a subsequent sale of the subject matter of it. without notice, courts of equity will not decree a specific performance, though the bill may perhaps be retained for awarding compensation in damages. (,t) Specific performance will not be decreed, at the instance of the vendor, unless his ability to make title be unquestionable, (?/) to all the lands contracted for, (s) And a court of equity will not force a doubtful title on a purchaser, {a) Before a vendor can declare a forfeiture, he must be able to tender a deed in accordance with his bond, (h) If, from the vendor's negligence or default, the propertv be- comes encumbered by judgments, taxes, ibrfeitures or other- wise, before the time for conveying the same, or before he (v) Colsoii vs. Thompson, 2 Wheat. 336; Carr vs. Duval, 14 Pet. 77; Prater vs. Miller, 3 Hawks, 628 ; MonUjomevif vs. Norris, 1 How. Miss. 499 ; Waters vs. Brown, 7 J. J. Marsh. 123 ; Fitzpatrid.- vs. Beatty, 1 Gihu. 454 ; Pigg vs. Corden, 12 Leigh, 69 ; MiUard vs. Rnrmdcll, Harring. Ch. 373. (ic) McCarkle \b. Brown, ^ S. & M. 167; Voorhees vs. Be Meyer, 2 Barb. R. 37 ; Shaw vs. Livermore,1 Green, N. J. Ch. 338. (a-) Woodward vs. Harris, 2 Barb. K. 439 ; Buttrick vs. Holden, 13 Met. 355 ; see Oliver vs. Croswell, 42 111. 41 ; Fallon vs. Railroad Co. 1 Dillon, 121 ; see Wallace vs. McLaughlin, 57 111. 53. {y) Oarnett vs. Mason, 2 Brockenbrough's 11. 186 ; ;6'. C. 6 Call, 308 ; Mor- gan's Heirs vs. Morgan, 2 Wheat. 290; Bank of Columbia vs. Hagner, I Pet. 455. (s) Hepburn vs. Auld, 5 Cranch, 262. (a) Watts vs. Waddle, 6 Pet. 389 ; -S'. C. 1 McLean, 200 ; Soheir vs. Williams, 1 Curtis, 479. ib) Baker vs. Bishop Hill Colony, 45 111. 264 ; Mix va. Beach, 46 111. 311 ; but see Boston vs. Nichols, 47 111. 353. 31 322 BILLS FOR SPECIFIC PERFORMANCE. Nature of, and When Proper. offers to perform his contract, he cannot insist on performance by the other party until he reh'eves the title from such subse- quent encumbrances, (c) The right of a purchaser of land from two joint owners, to have a specific performance of the contract cannot be impaired by reason merely that one of the vendors has failed to comply with an agreement with the other in respect to the subject matter of the contract, {d) Although courts of equity will enforce specifically, contracts relating to personalty, in many cases, yet they will weigh with greater nicety contracts of this description than such as relate to lands, (e) And if a breach of a contract relating to per- sonal property may be compensated by damages, equity will not, as a general rule, interfere. {/) The transfer of stock will not always be decreed, {g) Though a contract for insurance, or for the delivery of a policy of insurance by the company, will be enforced, even after a loss. (A) An agreement to sing at concerts will not be specifically enforced, (t) And a husband will not be compelled, specifically, to perform an agreement to procure his wife to join him in a conveyance of real estate. {J ) And where a wife refuses to execute a contract by her husband and herself, to convey her land, he will not be compelled to convey his wafe's estate to the purchaser, to make compensation for the principal estate, {k) (c) Cooper vs. Tyler, 46 111. 463 ; see Broicn vs. Cannon, 5 Gilm. 174. {d) Harding vs. Parshall, 56 111. 219. (iton, 25 111. 114 ; Gibhf< vs. BlaekiccU, 37 111. 191 ; Clay- ton vs. Frazier, 33 Texas, 91. (d) Blunt vs. Tomlin, 27 111. 93 ; Keys vs. I'est, 33 111. 316 ; see Dc Wolf VB. Pratt, 42 111. 198; Cnamhers vs. Rowe, 36 111. 171 ; see Earsha vs. Reid, 45 N. Y. 415 ; Roice vs. Rogers, 32 Texas, 218; Freeman vs. Freeman, 43 ?T. Y. 34. BILLS FOR SPECIFIC PERFORMANCE. 325 Parol Contracts — Parties to. been so far performed as to take it ont of the statute of frauds, (e) A parol contract by a father to convey to his son, on con- dition of his taking possession and making improvements, on a proper and clear case shown, will be enforced, (y) SECTION II. PAKTIKS TO. In case of a contract for the sale of real estate, if the vendor should die, and a bill is brought by his personal representa- tives for a specific pertormance of the contract, all the heirs of the vendor ought to be made parties, either as complainants or as defendants, before a specific performance is decreed, (g) For the same reason, if the vendee should die, on a like bill brought by the vendor or his personal representatives fur a specific performance, the heirs, or devisees, if any, of the ven- dee, as well as his personal representatives, should be made parties to the bill, {hj Where a vendor has, by his bond or covenant, bound his heirs to the performance of the obligation or covenant, if he should die, and a bill should be brought for specific perform ance against the heirs, the executor or administrator would be a necessary party, (i) The general rule is, that the parties to the contract are the only proper parties to a suit for a specific performance ; and, except in the case of an assignment of the entire contract, {(') Hnrtwell vs. Black, 48 111. 301; see Trailar vs. Hill, 2 Gilm. 364; Haickins vs. Hunt, 14 111. 42 ; Peckham vs. Barker, 8 R. I. 17 ; Wdsh vs. Bayard, 21 N. J. Eq. 186 ; Hedrick vs. Hern, 4 W. Va. 620. (/; See BHgJit vs. B rigid, 41 111. 97 ; JSeale vs. Keale, 9 Wallace, 1 ; Gnl- hraith vs. Galbraith, 5 Kansas, 402. (g) Story's Eq. PI. § IGO ; Morgan vs. Morgan, 2 Wheat. 297. 298 ; Ed- wards on Parties, 129-136; Calvert on Parties, 163-170; Rohtrts vs. Mar- clutnt, 1 Hare, 547. (h) Townsend vs. Camperdoicn , 9 Price, 130 ; Stor}-'s Eq. PI. g 160, 177. (t) Story's Eq. PI. § 173 ; Knight vs. Knight, 3 P. Wms. 333 ; Plunkett vs. Penson, 2 Atk. 51 ; Coop. Eq. PI. 38, 39. 326 BILLS FOR SPECIFIC PERFORMANCE. Parties to — Frame of Bill. there must be some special circumstances to authorize a de- parture from the rule, {j) All the heirs of an intestate as well as the administrator, should be made parties to a bill in chancery to enforce the specific performance of a contract made by the intestate in his lifetime, to convey a tract of land. (Tc) SECTION III. FRAME OF BILL. The bill, in cases of specific performance, should describe the land with such accuracy as to enable the court to decree a conveyance, il) The complainant should set out in his bill the contract according to its legal effect, and should aver a performance of all the conditions precedent on his part ; {m) but a general allegation that he has " done all that he was bound by the con- tract to do," is held insufiicient ; the particular facts which he has performed should be stated, in order that the court may determine whether he has done all that he ought, {n) Where, howe^'er, the complainant has partially performed the contract on his part, a formal allegation in the bill, that he is ready to complete the performance, is unnecessary. (oeting the said sale and purchase, in the words, or to the purport and effect following, to wit: {Here state the agreement verbatim) as by the said memorandum of agreement, ready to be pro- duced in court, will fully appear. And your orator further represents that the said C. D. paid to your orator the sum of dollars, part of the said purchase money, at the time of signing the said agreement ; and your orator delivered an abstract of his title to the said premises to the said C. D. ; and your orator has always been ready and willing to perform his part of the said agreement, and, on being paid the remainder of his said purchase money, with interest, to convey the said premises to the said C. D. and his heirs, and to let him into possession and the receipt of the rents and proiits thereof from the time in the said agree- ment in that behalf mentioned ; and your orator hoped that the said C. D, would have performed the said agreement on his part, as in justice and equity he ought to have done. But now, so it is, may it please your honor, that the said C D. alleges that he is and always has been ready and willing to perform the said agreement on his part in case your orator could have made, or can make, him a good and sufficient title to the said premises. But that your orator is not able to make a good title thereto ; whereas, on the contrar}^, your orator charges and insists that he can make a good and sufficient title to the said premises. • Forasmuch, therefore, as your orator is without remedy in the premises, except in a court of equity ; and to the end that the said C. D., who is made a party defendant to this bill, may be made to make full and direct answer to the same, hut not under oath, the answer under oath hevng hereby ivaived : and that the said C. D., defendant, may be compelled by the decree of this honorable court, specifically to perform the said agree- ment with your orator, and to pay to your orator the remainder of the said purchase money, with interest on the same from the time the said purchase money ought to have been paid, your orator being willing, and hereby offering, specifically to perform the said agreement on his part, and on l)eing paid the said remaining purchase money and interest, to execute a proper conveyance of the said described premises to the said 330 BILLS FOR SPECIFIC PERFORMANCE. Forms of Bills. C D., and to let him into possession of the rents and profits thereof, according to the tenor and effect of the said agree- ment ; and that your orator may have such other and further relief as equity may require and to your honor shall seem meet. May it please your honor to grant the writ of summons in chancery, directed to the sheriff of the said county of , commanding him that he summon the said defendant, C. D., to appear before the said court, on the first day of the next term thereof, to be held at the court house in , in the county of , aforesaid, then and there to answer this bill, etc. , Sol. for Cmnjylainant. No. 1^3. Bill for specific performance, mi a bond for a deed ; vendee vs. the legal representatives of vendor. To the Honorable , Judge of the Court of the County of , in the State of , In Chancery sitting : Your orator, A. B., of, etc., respectfully represents unto your honor that, on, etc., one C. D., late of, etc., being the owner in fee simple, of the following described real property, situate, lying and being in the county of, etc., known and designated as follows, to wit: {Here insert description^ And being desirous to sell the said premises, and your orator being mindful to purchase the same, the said C. D., on the day aforesaid, entered into a certain writing obligatory or bond for a deed with your orator, for the sale thereof to him, which said writing obliga- tory or bond, bearing date on the day and year above mentioned, and signed and sealed by the said C. D., is in the words and figures following, to wit : {Here set out tJie hond verbatim,) as by the said writing obligatory or bond for a deed, ready to be produced in court, will more fully appear. Your orator further represents, that on, etc., he paid the said C. D. the sum of dollars, being a part of the purchase money due by the terms of the said writing obligatory, which said sum was received by the said C. D., and indorsed by him upon the said writing obligatory. Your orator further represents, that on or about the day of , 18 — , the said C. D. departed this life, intestate, leav- ing D. D., his widow, and E. D. and F. D., his children and only heirs at law ; and that afterwards, on, etc., one E. F., of, etc., was duly appointed by the court of said county of , administrator of the estate of the said C. D., and then and there took upon himself the burden of such administration. BILLS FOR SPECIFIC PERFORMANCE. 3;31 Forms of Bills. Your orator further represents that afterwards, on, etc., he paid to the said E. F., administrator as aforesaid, the sum of dollars, being the balance due to said estate of the said C. D., according to the terms and conditions of said writing obli- gatory. Y our orator further represents, that the said C. D., in his life- time, and the said E. F., administrator as aforesaid, since the death of the said C. D., have wholly failed to execute and deliver to your orator a good and sufficient deed of conveyance for the said premises ; the said E. F. insisting that he, as such administrator, has no power or authority to do so. And your orator further shows that the said E. D. and F. D. are minors, under the age of years, and have no legal guardian. Forasmuch, therefore, as your orator is without remedy in the premises, except in a court of equity ; and to the end that the said D. D., E. D., F. D. and E. F., administrator, of the estate of C. D., deceased, who are made parties defendant to this bill, may be required to make full and direct answer to the same, fjut not under oath, the answer under oath heing herehy waived ; that a guardian ad litem may be appointed for the infant defendants named above ; that a good and perfect deed of conveyance may be made to your orator for the premises aforesaid, that a commissioner may be appointed by the court to make and execute such deed, or that the master in chancery of this court be directed to execute the same; and that your orator may have such other and further relief as equity may require and to your honor shall seem meet. And may it please your honor to grant the writ of summons in chancery, directed to the sheriff" of the said county of , commanding him that he summon the defendants above named, to appear before the said court, on the first day of the next term thereof, to be held at the court house in , in the county of aforesaid, then and there to answer this bill, etc. Sol. for Comjylainant. No. l^Jf. Bill for specific ijerformance, hy lessee against lessor, of a written agreement for a lease of a house. To the Honorable , Judge of the court of the County of , in the State of , In Chancery sitting : Your orator. A, B., of, etc., respectfully represents unto your honor, that C. D., of, etc., the defendant hereinafter named, being possessed of the premises described as follows, to wit : 332 BILLS FOR SPECIFIC PERFORMANCE. Forms of Bills. {Here insert deseri^ption.) And being desirous to let the same, on, etc., proposed and agreed to lease to your orator the same, with the appurtenances, and thereupon your orator and the de- fendant executed a certain memorandum or agi-eement of that date, in the words and ligures following, that is to say : {Here set out eopij of agreement verbatim,) as by the said agreement, ready to be produced in com-t, will appear. Your orator further represents, that in expectation and confi- dence that a lease would have been executed to him of the premises, pursuant to the terms of the said agreement, your orator has expended sundry sums of money in the said premises : and has always been ready to perform his part of the said agreement, and to accept a lease of the said premises, pursuant to the terms thereof. And for that purpose caused a draft of a lease to be drawn pursuant to the terms of the said agreement, and tendered the same to the defendant for his perusal and approbation, but he refused to accept or peruse the same. And your orator has frequently applied to the defendant and request- ed him to execute to your orator a lease of said premises ct)n- formable to the said agreement. And your orator well hoped that no dispute would have arisen, touching the said agreement and the leasing of said premises, but that the defendant would have complied with the reasonable request of your orator, as in equity he ought to have done. But noM' so it is, the defendant pretends that no such agreement was ever entered into between your orator and the defendant, or any agreement, or that he consented to grant a lease to your orator, whereas your orator charges the contrary of such pretenses to be the truth. Never- theless the defendant refuses to comply with your orator's said reasonable requests, or to perform the aforesaid agreement. Forasmuch, therefore, as your orator is without an adequate remedy in the premises, except in a court of equity; and to the end that the said C. D., who is made party defendant to this bill, may be required to make full and direct answer to the same, hut not under oath, the answer under oath heing herebtf, waiocd ; that the court may decree that the said agreement may be specifically performed and carried into execution; that the defendant may be decreed to execute a lease of the said premises to your orator according to the terms of said agreement, your orator hereby offering to execute a counterpart thereof, and in all other respects to perform his part of the said agreement ; and that your orator may have such other and further relief in the premises as equity may require and to your honor shall seem meet. May it please your honor to grant the writ of sumnions in BILLS FOR SPECIFIC PERFORMANCE. 333 Decree — Declaration of Right to. chancery, directed to the sheriff" of the said county of commanding him that he summon the defendant, C. D., to appear before the said court, on the first day of the next term thereof, to be held at tlie court house in , in the county of aforesaid, then and there to answer this bill, etc. Sol. for Complainant. SECTION IV. deckep:. Dedaration of right to specific performance. — According to the old practice, there were two ways of framing a decree in a suit for specific performance. The one was to declare that the complainant was entitled to a specific performance, if a good title could be shown, and then to direct a reference as to the title ; the other, to refer the title to the master, and to follow up that direction by a declaration, that if a good title was shown, the agreement ought to be specifically performed, {t) xAnd the omission of this declaration is often attended with in- convenience, {u) Where the question of title is not the only issue, but the de- fendant resists specific performance on any other ground, it was specially necessary that a declaration that if a good title was shown, the agreement ought to l)e performed, should be insert- ed, (v) Of late, however, it is seldom inserted, {w) Neverthe- less, where a reference of the title is directed, it will, it seems, be implied, ix) "Where a reference of title is directed, the declaration as to the right to specific performance is usually made on further directions. (?/) (t) Seaton on Decrees, 209 ; Stevens vs. Ouppy, 3 Rnss. 182. (w) Id. lb. ; Mole vs. Smith, Jac. 495 {v) Seaton on Decrees, 210 ; Pitt vs. Davis, 3 Russ. 182, note. (w) Hardiity -vs. Beckford, cited. in Seaton on Decrees, 210; BurrougTis vs. Orrkley, 3 Swanst. 172; Le Orand vs. Whitehead, 3 Ruas. 309, note; but see Burton vs. Todd, 1 Swanst. 258. (.1) Seaton on Decrees, 210 ; see Mole vs. Smith. Jac. 494 ; Le Grand va. Wiitehead, 1 Ru.sa. 309. (.V) Seaton on Decrees, 210 ; Bridf/es vs. Robinson, 3 Mer. 694. 334 BILLS FOR SPECIFIC PERFORMANCE. Decree — Reference of Title. Where speeiiic pertbrmanee is decreed without a reference of title, it will be made upon the original hearing. (2) Reference of title. — Generally, either the vendor or the pur- chaser may insist upon a reference of the title in the first instance ; the vendor being entitled to the opportunity of per- fecting it, and the purchaser of fully investigating it, before the master. But either party may preclude himself from this right by his mode of pleading, {a) So where the acts of the pur- chaser amounted to a waiver of his right, specific performance was decreed in the first instance ; (J) but taking possession and acts of ownership were held not to be a waiver under the cir- cumstances, (c) The direction is to inquire whether the vendor can make title, not whether he could do so at the time of entering into the contract. {(T) If a title can be made before the hearing, {e) or before the report, {f ) or upon the hearing for further direc- tions, {(j) it is sufficient. Formerly the court directed a reference of the title only in the first instance, and, upon further directions, directed a refer- ence back to inquire at what time a good title could be made, with a view to costs. (A) But now^ the reference will be extended to both objects in the first instance. (*) If a refer- ence for the latter purpose is not obtained in the first (z) Margravine of Auspach vs. Noel, 1 Mad. 317 ; Dakin vs. Cope, 2 Russ. 175. (a) Jenkins vs. Hiles, 6 Ves. 653, 654 ; Seaton on Decrees, 210. (5) Fleetwood vs. Green, 15 Ves. 594 ; Margravine of Auspach vs. Noel, 1 Mad. 310 ; see Fludyer vs. Cocker, 12 Ves. 25 ; Balfour vs. Welland, 16 Ves. 151. (c) Burroughs vs. Oakley, 3 Swanst. 159. (rf) Langford vs. Pitt, 2 P. Wms. 630. (e) Wynn vs. Morgan, 7 Ves. 202. (/) Langford vs. Pitt, 2 P. Wms. 680 ; Jenkins vs. Hiles, 6 Ves. 655 ; Seton vs. Slade, 7 Ves. 279 ; Mortlock vs. Buller, 10 Ves. 315 ; Hepbxirn vs. Dunlap, 1 Wheat. 179 ; see Coffin vs. Cooper, 14 Ves. 205. (g) Paton vs. Rogers, 6 Mad. 256. (A) Oibson vs. Clarke, 2 V. & B. 103. (i) Seaton on Decrees, 211 ; Wright vs. Bond, 11 Ves. 39; Jennings YB. Hopton, 1 Mad. 211 ; Anon. 3 Mad. 495. BILLS FOK SPECIFIC PERFORMANCE. 335 Decree — Payment of Purchase Money, etc. — Form of Decree. instance, the defendant is not precluded troni obtaining it after the report. (J) Payment of jpurcJiase money and execution of conveyance. The payment of the purchase money and the execution of the conveyance are simultaneous acts, and should be done interchangeably. (A*) Delivery of deeds^ etc. — There should be a direction for the delivery up of deeds, writings, etc., pertaining to the title of the estate. {]) No. 125. Decretal order for a reference as to the title of a vendor., etc. {Caption, and title of cause as in No. 79, &nte,page 198.) This cause coming on to be heard upon the pleadings filed and proofs taken therein, and the said pleadings and proofs having been read, and the counsel for the respective parties having been heard, and in consideration of the premises, it is ordered, that this cause be referred to the master in chancery of this court, to inquire whether a good title can be made to the premises comprised in the agreement between the parties to this cause, mentioned in the pleadings therein ; and that he state his opinion thereon to the court. And in case he shall be of opinion that a good title can be made, it is ordered that he do inquire and state when it was first shown that a good title could be made. And that the said master do inquire and report as to the quantity of land agreed to be conveyed by the complainant ; and that he take an account of the payments made upon such agreement, by the defendant ; and that he ascertain and report the balance now due from him upon the said agreement. And for the better discovery of the matters aforesaid, the parties are to produce before the said master, upon oath, all ( j ) Id. ; Gibson vs. Clarkf, 3 V. & B. 103 ; Daly vs. Osborne, 1 Mer. 382 ; Bircli vs. Haynes, 3 Mer. 444; see Jennings vs. Hopton, 1 Mad. 311 ; Hyde vs. Wroughton, 3 Mad. 379 ; Luhin vs. Lightbody, 8 Price, 600 ; Anon. 3 Mad. 495. {k) Margravine of Auspach vs. Noel, 1 Mad. 316 ; Urmston vs. Singleton. cited in Seaton on Decrees, 814. d) Id. lb. ; McNamara vs Williams, 6 Ves. 144. 336 BILLS FOR SPECIFIC PERFORMANCE. Forms of Decrees. deeds, books, papers, and writings, in their custody or power, relating thereto ; and are to be examined npon interrogatories as the said master shall direct; and to take such further proof as either party may produce before him in relation to the sev- eral matters mentioned, and report the same to the court. And this court reserves the consideration of all further directions, and of the costs of this suit, until after the said master shall have made his report. And either of said parties are to be at liberty to apply to the court as occasion may require. No. 126. Interlocutory decree for an account. {Caption., and title of cause as in iVo. 79, ante, ^:>a^e 198.) This cause coming on to be heard upon the pleadings filed and the proofs taken therein, and the said pleadings and proofs liaving been read, and the counsel for the respective parties having been heard, and the court being fully advised in the premises, and on consideration thereof, doth order, adjudge and decree, that this cause be referred to the master in chanceiy of this court to take a mutual account of all dealings and transac- tions between the complainant and defendant in this cause, for the better clearing of which account the parties are directed to ^produce before the said master, upon oath, all deeds, books, papers, and writings in their custody or power, relating there- to, and are to be examined upon interrogatories as the said master shall direct : who, in taking the said account, is to make unto the pai-ties all just allowances ; and what, upon the bal- ance of the said account, shall appear to be due from either party to the other, is to be paid as the said master shall direct. And this court reserves the consideration of the costs of this suit, and of all other directions, until after the said master shall have made his report ; when either party is to be at liberty to apply to the court, as occasion shall reijuire. iVb. 127. Final decree for a specific jperformance of an agreement. {Caption, and title of cause as in No. 79, ante, page 198.) This cause coming on to be heard for further directions on the report of the master in chancery, to whom the same stood referred, and the said report, together with the pleadings and proofs, having been read, and the counsel for the parties respectively having been heard, and the court being fully advised in the premises, and it appearing to the court that a BILLS FOR SPECIFIC PERFORMANCE. 337 Form of Decree. good title can be made by the complainant to the premises comprised in the agreement between the parties to this cause, mentioned in the pleadings therein, and dated the ■ day of , 18 — ; it is therefore ordered, adjudged and decreed, and this court does order, adjudge and decree, that the said agree- ment so made and entered into between the complainant and defendant, and duly proved in this cause, be specifically per- formed. And it is further ordered, adjudged and decreed, that the complainant execute and deliver to the defendant a proper and sulRcient conveyance in fee of the premises de- scribed in the same agreement between the parties, and par- ticularly described therein, as follows, to wit : {Here insert description hy metes and hounds,) to be approved by the master in chancery of this court, in case the parties differ about the same. And it is further ordered, adjudged and decreed, that the defendant, upon the tender or delivery to him of such conveyance, do pay unto the complainant the sum of dollars, the balance of the purchase money of said premises, reported by the said master in chancery to be still due, with interest thereon at the rate of per cent, from the date of the said master's report. And it is further ordered, adjudged and decreed that the defendant pay to the complain- ant the costs of this suit, to be taxed. And it is further ordered, adjudged and decreed, that the complainant have execution against the defendant for the said sum of dollars, the balance of said purchase money reported by the master to be due, with interest from the date of his report, and for the costs, to be taxed as aforesaid, according to the course and practice of the court. And either of the parties is to be at liberty to apply to this court as occasion may require. CHAPTER XXYl. BILLS RELATING TO PARTNERSHIP MATTERS. Section 1. Where a Dissolution will be Decreed. 3. Account Between Paetners. 3. Appointment of a Receiver. 4. Forms of Bills. 5. Forms op Decrees and Orders. SECTION I. WHERE A DISSOLUTION WILL BE DECREED. Where a partnership is formed for a definite term, neither partner can file a bill for dissolution of the partnership, or for the appointment of a receiver, before the expiration of the time limited, merely on the ground that he is dissatisfied, or that the partners quarrel, {a) In matters of difficulty or controversy between partners, a resort to a court of equity is most usual and most convenient for the adjudication and settlement of the same. (J) And where a party is a member of two diiferent firms, chancery will adjust matters of difierence which would otherwise be settled at law. (c) The courts of common law have no power whatever of de- creeing or causing a dissolution of a partnership, {d) In some cases, in which courts of equity would make such a decree, as where a partnership was formed through fraud, courts of law might apply the principle, that a contract so vitiated never liad force, and on this ground declare it null, and avoid the partner- (a) Henn vs.Walsh, 2 Edw. Cb. 129 ; Loomis vs. McKemie, 31 Iowa, 425. {b) Bracken vs. Kennedy, 3 Scam. 559 ; Strong vs. Claicson, 5 Gilm. 346. (c) Haven vs.Wakefield, 39 111. 509. (d) Parson on Part. 457 ; Story on Part. ^ 284 ; 1 Story's Eq. Jur. § 673 ; Stone vs. Fouse, 3 Cal. 294 ; Nugent vs. Locke, 4 Cal. 320 ; Wilson vs. Lvssen, 5 Cal. 116 ; Barnstead vs. Empire Mining Co. 5 Cal. 299. BILLS RELATING TO PARTNERSHIPS. 339 Where a Dissolution will be Decreed. sbip. But courts of equity have full power over this matter ; and upon a bill filed by any partner, alleging a sufficient cause, and upon proper evidence, if the facts are not admitted, the court will decree a dissolution of the partnership, [e) Where the duration of a partnership is fixed, it requires something more than the mere will of a party to dissolve it within the term ; but only a little more is needed, and a disso- lution will be granted where dissension prevents all hope of advantage, {f) Where one partner got possession of the entire proceeds of the year's operation, without the consent of his copartner, (there being nothing in the copartnership agreement authorizing him to do so,) and assumed the exclusive control of the whole busi- ness, it was held to be such a breach of faith as to authorize a decree for a dissolution of the partnership, {(j) A decree for a dissolution will be warranted, if it is impossi- ble that the partnership should be beneficially continued ; namely, if the principles on which the scheme is based is found, on examination, to be erroneous and impracticable ; (A) or where the partnership is formed to effect a particular object, which is found to be impracticable, and wholly fails ; (*) or where the circumstances have so changed as to render it impossible to carry on the partnership without injury to all the partners ; {j ) or where the object of a partnership is destroyed, as a steamboat. (Jc) (e) Parson on Part. 457 ; Baxter vs. West, 1 Drewry & Sm. 173 ; Bumojit VB.Ruepprecht, 38 Ala. 175 ; Mealier xs.Cox, 37 Ala. 201 ; Harper vs. Lamp- ing, 33 Cal. 641 ; Hamilton vs. Stokes, 4 Price, 161 ; Oldaker vs. Lavender, 6 Sim. 239 ; Greeii vs. Barrett, 1 Sim. 45 ; Jones vs. Tates, 9 B. & C. 533; Colt vs. Wollaston, 2 P. Wms. 154 ; Fogg & Vanderslise vs. Johnst&n, 27 Ala. 432. (/) BisJiop vs. Breckless, 1 HoflF. Ch. R. 534 ; Meaher vs. Cox, 37 Ala. 201, (g) Kennedy vs. Kennedy, 3 Dana, 239 ; Gowan vs. Jeffries, 3 Ashm. 296 ; Maude vs. Bodes, 4 Dana, 144; Story vs. Moon, 8 Dana, 331 ; Garretson vb. Weaver, 3 Edw. Ch. 385. (A) Beaumont vs. Meredith, 3 Ves. & B. 180 ; Cloiighye. Badcliffe, 1 DeGex & S. 164. (i) NockeUs vs. Croshy, 3 B. & C. 814 ; 5 Dowl. & R. 751. {j) Harrison vs. Tennant, 21 Beav. 482. (k) Claiborne vs. Creditors, 18 La. An. 501. 340 BILLS RELATING TO PARTNERSHIPS. Account between Partners. Bad temper, overbearing and oppressive conduct, quarrel- ing, indolence and inattention, intemperance or bad habits and disgraceful conduct, wild speculations, gross extravagance, absenting himself from his business or entering into other business engagements inconsistent with his duty to his partners, or any conduct which brings disgrace upon the firm or impairs their credit, {I) are all causes which may be sufficient, if their degree be sufficient, and otherwise not. (w) SECTION II. ACCOUNT BETWEEN PARTNERS. Whenever there is a dissolution of a partnership, for any cause, it would seem that there must be an account, if it is demanded by any party in interest, {n) The taking of an account is a frequent preliminary to any further action by a court of equity ; because by this means alone can the court ascertain the true relation of the parties as to their rights and obligations, (o) An account and a dissolution seem to be so clearly connect- ed that an account is seldom granted unless a dissolution is also (I) Norway vs. Rowe, 19 Ves. 148 ; Waters vs. Taylor, 2 Ves. & B. 304 ; Howell vs. Harvey, 5 Ark. 278 ; Master vs. Kirton, 3 Ves. 74 ; Wilson vs. Chreenwood, 1 Swanst. 481 ; Blakeney vs. Dufour, 15 Beav. 40 ; Hall vs. Hall, 12 Id. 414, and note to 419 ; Williamson vs. Wilson, 1 Bland, 418 ; Fogg & Vanderslise vs. JoJmston, 27 Ala. 432 ; Durbin vs. Barber, 14 Ohio, 311. (m) Parson on Part. 459., (n) Parson on Part. 511 ; Adams, Eq. 239, et seq. ; Collyer on Part. §298 ; 1 Story's Eq. Jur. cj 671 ; Forman vs. Hanfrny, 2 Ves. & B. 329 ; Harrison vs. Armitage, 4 Mad. 143 ; Russell vs. Loscomhe,A. Sim. 8 ; Knowlesva. Haugh- ton, 11 Ves. 168 ; Waters vs. Taylor, 15 Ves. 15 ; Ex parte Broadbent, 1 Mont. & A. 635 ; see Hayes vs. Reese, 34 Barb. R. 151 ; Vermillian vs. Bailey, 27 111. 230 ; Pope vs. Salsman, 35 Mo. 362. (o) Baird vs. Baird, 1 Dev. & Bat. 524 ; McRae vs. McKimie, 2 Dev. & Bat. 232 ; Camblat vs. Tapery, 2 La. An. 10 ; Kennedy vs. Kennedy, 3 Dana, 240. BILLS RELATING TO PARTKEKSHIPS. 341 Account between Partners — Appointment of a Receiver. asked for ; {p) but this cannot be deemed a rule of equity, {g) although in the great majority of cases, where the relations between the partners are such, that one of them can obtain an account only through the interposition of a court, a dissolution is and should be asked for. (r) On the filing of a bill in chancery for the settlement of part- nership accounts, the parties cannot introduce their individual accounts into the statement. (6-) Equity will recognize and protect debts due from the firm to an individual member, or from a member to the firm. The proper remedy for the assignee of the rights of a part- ner, is a bill for the settlement of the partnership accounts, to which all the partners must be made defendants. {() SECTION III. APPOINTMENT OF A RECEIVER. Where either partner has a right to dissolve the partnership, and the copartnership articles do not provide for the settlement of the concern, it is of course for a receiver to be appointed by the court, upon a bill for that pui*pose ; {u) and the receiver will be directed to carry on the business, until a sale of the partnership property can be effected, {v) Where a bill is filed seeking a dissolution of a partnership, and it satisfactorily appears that the complainant will be enti- (p) Formnn vs. Hanfray, 2 Ves. & B. 329 ; see Loscomhe vs. Eussell, 4 Sim. 8 ; Knowles vs. Haitghton, 11 Ves. 168 ; Waters vs. Taylor, 15 Ves. 15 ; Wnhoarth vs. Holt, 4 Mylne & Craig, 619, 635. (q) Richardson vs. Hastings, 7 Beav. 301 ; Fairthorne vs.Wcston , 3 Hare. •387 ; Miles vs. TJiomas, 9 Sim. 009 ; Goodman vs. Whitcomb, 1 Jac. & W. 593. (r) Loscombe vs. Itussdl, 4 Sim. 8 ; Waters vs. Taylor, 15 Ves. 10 ; For- man vs. Hanfray, 2 Ves. & B. 329 ; Chapman vs. Beach, 2 Jac. & W. 594 ; Pigott vs. Bagley, McClel. & Y. 509 ; Krehell vs. White, 2 Younge & f ". 15 ; Parson on Part. 511-512. (s) Hanks vs. Baber, 53 111. 292 ; see Bracken vs. Kennedy, 3 Scam. 559. (t) Bank vs. Carrollton Railroad, 11 Wallace, 624. (w) Law vs. Ford, 2 Paige, Ch. R. 310 ; Garretson vs. Weaver, 3 Edw. Cli. 385 ; Sloan vs. Moore, 37 Pa. St. R. 217. (r) Marten vs. Van Schaick, 4 Paige, Cb. R. 479.- 342 BILLS RELATING TO PARTNERSHIPS. Receiver — When Appointed — Form of Bill. tied to a decree for the dissolution, a receiver will be appointed as a matter of course, tlie obvious reason being that the same causes which would justify a decree for dissolution would also justify the appointment of a receiver, (vj) When appointed. — "Where it appeared that a copartnership was insolvent, and that the complainants, who were members, were excluded from their full share in the management of the concern, and that the defendant, Mdio was the acting partner, neglected to keep proper books of account, and to keep them open for the inspection of the complainants, who were refused access to them, the court, on motion, appointed a receiver before answer and final decree, (x) As a general rule, a receiver will not be appointed without notice to those interested ; but where ii-reparable injury would arise from delay, a receiver will be appointed without notice, leaving the other party the right to apply to have the order superseded on cause shown, {y) For rules governing the appointment of a receiver, in a suit between partners, see Kerr on Receivers, 81-102. SECTION IV. FORMS OF BILLS. iV(9. 128. ^ill/or a dissohUioji of a partnership., and for an injunction. To the Honorable , Judge of the Court of the County of , in the State of , In Chancery sitting: Your orator, A. B., of, etc., respectfully represents unto your honor, that on, etc., your orator entered into an agreement with one C. D. and E. F,, of the same place, the defendants hereinafter named, to form a copartnership with them in the {w) Birdsall vs. Colie, 2 Stockt. Ch. R. 65 ; Seigliortner vs. Weissenborn, 5 C. E. Green, 177 ; Dunn vs. McNaught, 38 Geo. 179 ; Kirhy vs. IngersoU, Harring. Ch. R. 18 ; Marten vs. Van Schaick, 4 Paige, Ch. 479. (x) Oowan vs. Jeffries, 2 Ashm. 296. (p) Oowan vs. Jeffries, 2 Ashm. 296 ; Williamson vs. Wilson, 1 Bland, 418. BILLS RELATING TO PARTNERSHIPS. 343 Form of Bill for Dissolution. business of auctioneers, which agreement was reduced to writ- ing and signed by your orator and the defendants, and was in the words and figures or to the purport and effect following, that is to say : {Here set out the agreement verbatim,) as by the said agreement, ready to be produced in court, will appear. And your orator further represents, that the said copartner- ship business was entered upon and has ever since continued to be carried on by your orator and the defendants in pursu- ance of and under the said agreement, no other articles or instrument having ever been prepared and executed between them. Your orator further represents, that having much reason to be dissatisfied with the conduct of the said C. D., and being desirous, therefore, to dissolve the said partnership, your orator on or about caused a notice in writing signed by your orator to be delivered to the said C. D. and E. F. in the words and figures or the purport and effect following, that is to say : {Here set out the notice, if one vms given /) as in and by such written notice, now in the custody or power of the defendants or one of them, when produced, will appear. Your orator further represents, that the said C. D. has from time to time since the commencement of the said partnership, applied to his own use from the receipts and profits of the said business very large sums of money, greatly exceeding the pro- portion thereof to which he was entitled, and in order to con- ceal the same the said C. D., who has always had the manage- ment of the said copartnership books, has never once balanced the -said books. And your orator further represents, that having in the beginning of the year 18 — , discovered that the said C. D. was greatly indebted to the said copartnership, by reason of his application of the partnership moneys to his own use, your orator, in order to form some check upon the conduct of the said C. D., requested that he would pay all partnership moneys which were received into their bankers, and would draw for such sums as he had occasion for, but the said C. D. has wholly disregarded such request, and has continued to apply the partnership moneys received by him to his own use, with- out paying the same in to the bankers, and has also taken to his own use money received by the clerks, and has by such means greatly increased his debt to the partnership, without affording to your orator and the said E. F. any adequate means of ascer- taining the true state of his accounts. Your orator further represents, that he has, from time to time, applied to the said C. D. and requested him to come to a full and fair account in respect to the said copartnership trans- 344 BILLS RELATING TO PARTNERSHIPS. Form of Bill for Dissolution. actions, with which just arid reasonable request your orator well hoped that the said C. D. would have complied, as in justice and equity he ought to have done. But now so it is, may it please your honor, the said C. D. absolutely refuses so to do ; and he at times pretends that he has not received and applied to his own use more than is his due proportion of tlie partnership profits. AVhereas your orator charges the contrary thereof to be the truth, and so it would appear if the said C. D. would set forth a full and true account of all and every his receipts and payments in respect of the said partnership transac- tions, and of the gains and profits which have been made in each year since the commencement of the said partnership. And your orator charges that the said C. D. has in fact received the sum of dollars and upwards beyond his due proportion of the partnership profits, and that he is nevertheless proceeding to collect in the partnership debts and moneys, whereby the balance due from him will be increased, to the great loss and injury of your orator and the said E. F. And your orator charges that tlie said C. T>. ought, therefore, to be restrained by the order and injunction of this honorable court from collecting and receiving any of the said partnership debts and moneys. And your orator further represents unto your honor, that the said E. F. refuses to join with your orator in this suit. ( Jf deemed necessary^ add interrogatories^ see ante, page 72.) Forasmuch, therefore, as your orator is without adequate remedy in the premises, except in a court of equity ; and to the end that the said C. D. and E. F., who are made parties defendant to this bill, may be required to make full and direct answer to the same, ( If' the oath is to he waived, say, ^'■But not under oath, the answer under oath heing hereby waived^''') that the said copartnership may be declared void, and that an account may be taken of all and every the said copartnei'ship dealings and transactions from the time of the commencement thereof; and also an account of the moneys received and paid by your orator and the defendants respectively in regard there- to. And that the defendants may be decreed to pay to your orator what, if anything, shall upon the taking of the said accounts appear to be due to him, your orator being ready and willing, and hereby offering to pay to the defendants or either of them what, if anything, shall upon the taking of the said accounts, appear to be due to them or either of them from your orator. And that in the meantime the said C. D. may be restrained by the order and injunction of this honorable court from collecting or receiving the partnership debts or other money. And that your orator may have such other and further BILLS RELATING TO PARTNERSHIPS. 345 Bill for an Account — AflBdavit for Injunction. relief in the premises as equity may require, and to your honor shall seem meet. May it please your honor to grant the writ of summons in chancery, directed to the sheriff of the said county of , com- mandinij; him that he summon the defendants, C D. and E. F.^ to appear before the said com-t, on tlie first day of tlie next term thereof, to be held at the court house in , in the county aforesaid, then and there to answer this bill, etc. And may it please your honor to grant unto your orator the people's writ of injunction, to be directed to the said C. D., restraining him, his agents and attorneys, from collecting or receiving any of the debts due and owing to the said Urm, and from using and applying any of the copartnership funds to his own use until the further order of said court. Solicit(rrfor Complainant. A. B. {If an injunction is desired, add affidavit, as follows :) Wo. 129. Affidavit to a hill to obtain an injunction. State of — County of '' ■ On this day of , 18 — , before me personally ap- peared the above-named A. B. and made oath that he has heard read the above bill subscribed by him, and knows the contents thereof, and that the same is true, of his OAvn knowl- edge, except as to the matters which are therein stated to be on his information or belief, and that as to those matters he believes it to be true. ^ (ji^^j, ^y ^/^^ ^r^^,,^_ Wo. 130. Bill for an account of partnership dealings, and an injunction, etc. To the Honorable , Judge of the Court of the County of , in the State of , In Chancery sitting : Your orator, A. B., of, etc., respectfully represents unto your honor, that on, etc., your orator and C. D., of the same place, entered into a general copartnership together for the pur- pose of carrying on a general loholesale and retail dry goods business at, etc., the same to be carried on under the iinn name and style of B. & D. ; that your orator engaged to and did bring into said business the sum of dollars, and was to receive two-thirds of the profits, and, in the same propor- tion, to share the losses of said business ; and that the said C. D. engaged to and did bring into the said business the sum 346 BILLS RELATING TO PARTNERSHIPS. Form of Bill for Account, etc. of dollars, and was to receive one-third of the profits, and was to share the losses of said business in the same proportion ; that the said copartnership business was com- menced on, etc., and was continued from that date until, etc., when the same was dissolved by mutual consent ; that during the continuation of said copartnership business a large amount of goods were sold by the said firm to various parties on a credit, and the said business remains unsettled. Your orator further represents unto your honor that no settlement of said copartnership business has ever been made between your orator and the said C. D. ; that since the expira- tion of the term of the said partnership, your orator has repeatedly applied to the said C. D. to come to a final settle- ment and adjustment with respect thereto. And your orator well hoped that the said C. D. would have complied with your orator's reasonable request in that behalf, as in equity and justice he ought to have done. But the said C. D. de- clined, and absolutel}'^ refuses, so to do. Tour orator further represents that the said C. D. has taken possession of the partnership books of the said firm, and has collected a large amount of the accounts due and owing to the same, and has refused to permit your orator to see and inspect said books of account, and wholly refuses to render to your orator any account of the copartnership moneys received by him, and to apply the same to the payment of the debts of the said firm. Your orator further represents that upon a just and true settlement of the accounts of the said partnership business, it would appear that there is a large balance due from the said C. D. to your orator, in respect of the said business. Your orator further represents, that the said C. D. is using the funds of the said copartnership in rash speculations on his own account, and is thereby in danger of drifting into insolv- ency ; and your orator fears, and charges that he is in danger of losing the amount so due him from the said C. D. in respect to the said copartnership dealings and transactions. By reason whereof the said C. D. ought to be enjoined and restrained by the injunction of this honorable court from further collecting the said copartnership accounts, and from using and further applying the funds of said firm to his own use ; and that some suitable person ought to be appointed by this honorable court to receive and take charge of the books of account of the said firm, and to collect the accounts due the same. Forasmuch, therefore, as your orator is without adequate remedy in the premises, except in a court of equity ; and to I BILLS RELATING TO PARTNERSHIPS. 347 Form of Decree, etc. — Order Appointing Receiver. the end that the said C. D., who is made party defendant to this bill, may be required to make full and direct answer to the same, hut not under oath, the answer under oath heing hereby waived ; and fully set forth a true and just account of all his actings and doings in respect to said copartnership business since the expiration thereof; and that an account may be taken under the direction of this honorable court, of all and every the said copartnership dealings and transactions, and that the same may be fully adjusted, and the respective rights of your orator and the defendant ascertained ; and that the defendant may be decreed to pay to your orator what, if anything, shall appear upon such account to be due from him ; your orator being ready and willing, and hereby offers to pay to the defend- ant what, if anything, shall appear to be due to the defendant from your orator ; and that some proper person may in the meantime be appointed by the court as receiver, to take charge of the said partnership books of account, and collect whatever money or property may belong or be due to the said firm ; and that your orator may have such other and further relief in the premises as equity may require and to your honor shall seem meet. May it please, etc. {Add j^t'o^yer for sv.tnni07is and injunc- tion as in the last precedent, No. 128, and affidavit, No. 129, ante, page SJfS.) SECTION V. FORMS OF DECREES AND ORDERS. No. 131. Order appointing a receiver in a suit between partners. {Proceed as in No. 81, ante, page W2, to the asterisk *, and continue:) It is ordered that E. F., of, etc., be, and he is hereby appointed receiver to receive the outstanding debts and effects of the late partnership of A. B. and C. D., in the pleadings in this cause mentioned ; that the said E. F. enter into a bond in the penal sum of dollars, with security, to be approved by the master in chancery of this court, con- ditioned for the faithful performance of his duties as such receiver, and that he will be answerable for what he shall receive of such outstanding debts and effects, and will pay the same, as this court shall, from time to time direct. And it is further ordered that the complainant and defend- ant do deliver over to the said E. F., as such receiver, all books 348 BILLS KELATING TO PARTNERSHIPS. Decree for Account — Decree for Dissolution, etc. of account, securities and evidences of indebtedness, and efi'ects belonging to the said partnersliip. And in case there shall be occasion to put any of the debts in suit for the recovery thereof, the said receiver is to make use of the names of the complainant and defendant, or either of them, as it may be- come necessary for that purpose. It is further ordered that the said receiver, from time to time, make report to the court of his proceedings in this behalf; and that he be at liberty to apply to the court for further , directions as he may deem necessary. No. 132. Decree for an account of partnership dealings. {Proceed substantially as in No. 81, ante, page W% to the asterisk *, and then proceed as follows:) It is therefore ordered, adjudged and decreed, that this cause be referred to the master in chancery of this court to take an accoimt of the partnership dealings between the complainant and defendant ; and for the better discovery of the matters aforesaid, the par- ties hereto respectively are ordered to produce before the said master, and to leave with him until otherwise directed, all books, papers and writings in their custody, or under their control, relating thereto ; and are to be examined upon oath and interrogatories, as the said master shall direct; and the said master will cause to come before him all such witnesses, whose testimony he may deem necessary, and examine them upon oath and interrogatories touching the said accounts. ALud it is ordered that what shall appear to' be due from either party to the other on the balance of the said account, be paid by such party from whom such balance shall be found due to the other, within after the report of the said master shall have been approved and confirmed by this court. And it is further ordered that the said master make his report herein with all convenient speed ; and that the said master, or either of said parties, be at liberty to apply to the court for further directions, and the court reserves the consideration of costs until after the said master shall have made his report. No. 133. Final decree for a dissolution of partnership, and for an account. {Caption, and title of cause as in No. 79, ante, page 198.) This cause having come on to be heard upon the bill of com- plaint herein, the answer of the defendant thereto, the replica- tion of the complainant to such answer, and the report of the BILL8 KELATING TO PARTNERSHIPS. 349 Decree for Dissolution and Account. master in chancery of this court, to whom this cause was here- tofore referred to take the proofs of the matters in issue in said cause, and to state an account of the partnership dealings be- tween said parties, which said report is hereby approved and confirmed, and having been argued by counsel for the respective parties ; and the court being fully advised in the premises, and on consideration thereof, doth find : that the allegations of the said bill are substantially true as therein stated ; and that the equity of this cause is with the complainant ; and that, etc. {Here insert any otiier matter found hy the court) ; and that upon the statement of the account between the said parties, in respect to their partnership dealings, that there is now due from the defendant to the complainant the sum of dollars. It is therefore ordered^ adjudged and decreed, by the court, that the copartnership heretofore existing between the said parties be, and the same is hereby, dissolved ; that the defend- ant pay to the complainant within days from this date, the said sum of dollars, with lawful interest thereon ti-ora this day until paid, and also the costs of this suit to be taxed by the clerk of this court ; and in default of such payment, that execution issue therefor. CHAPTER XXYII. BILLS TO REDEEM. Section 1. Nature of. 2. Who mat Redeem. 3. Within What Time to be Filed 4. Parties to. 5. Terms of Redemption. 6. Frame of Bill. 7. Decree. SECTION I. NATURE OF. It is a doctrine of courts of equity that a mortgage is a mere security for the debt, and only a chattel interest ; and that until a decree of foreclosure, the mortgagor continues the real owner of the fee. The equity of redemption is considered to be the real and beneficial estate, tantamount to the fee at law ; and it is accordingly held to be descendible by inheritance, de- visable by will, and alienable by deed, precisely as if it were an absolute estate of inheritance at law. {a) It is not essential to the right of the mortgagor to redeem that he should do so within the time limited in the defeasance. There is no rule of law which requires that a redemption shall be made within the time limited by the mortgage. Until fore- closure, it is a subsisting right, unless barred by the lapse of time. (J) If a subsequent purchaser takes his conveyance with notice of the prior mortgage, he, of course, holds subject to the mort- gage, but he or his grantees have still the right to redeem, and can only be deprived of that right by a foreclosure of the mort- (a) Bruere vs. Wharton,! Sim. 483 ; Russell vs. Topping, 5 McLean, 194; Rtissell vs. Elp, 2 Black, 575. (6) PrescMaJcer vs. Feaman, 32 111. 475 ; Willetts ve. Burgess, 34 111. 494. BILLS TO EEDEEM. 351 Nature of — Deed Absolute on its Face, etc. gage, or by its being barred in some of the modes known to the law. (c) Deed ahsolute on its face, when deemed as a mortgage. — A deed absolute on its face will be deemed as a mortgage, in equity, if intended as a security for the payment of money ; {d) and the intention of the parties may be manifested either by a written defeasance, executed simultaneously with the convey- ance, or by the acts or parol declarations of the parties, {e) And where a conveyance is in fact a mortgage, it continues a mortgage, although there may be a change of owners, if each change is coupled with notice of the original transaction, {f) If the transaction was in fact a loan or security for money owing, although the conveyance is absolute on its face, still it will be treated as a mortgage, but that fact must be satisfac- torily shown, {g) Where the evidence of indebtedness is retained by the mortgagee, after receiving a deed, absolute in terms, of the mortgaged premises, and the mortgagee gives back a lease to the grantor, and receives rent, equity will regard the deed as a mortgage. (A) The statute of Illinois provides that, " every deed conveying real estate, which shall appear to have been intended only as (c) Dunlapys.Wilson, ^2 111.511. (d) Hughes vs. Edwards, 9 Wheat. 489 ; Sprigg vs. Bank of Mount Pleasant, 14 Pet. 201; S. C. 1 McLean, 178, 384; Walton vs. Crowley, 1^ Wend. 63; Morris vs. Nixon, 1 How. U. S. 118; Jaques vs. Weeks, 7 Watts, 261 ; Babcock vs. Wyman, 19 How. U. S. 289 ; Cornell vs. Pierson, 4 Halst. Ch. 478 ; S.C.2 Curtis, C. C. 386 ; Chickering vs. Hatch, 3 Sum. 474; Par- rington vs. Pierce, 38 Maine, 447 ; Bentley vs. Phelps, 2 W. & M. C. C. R. 426 ; Eldridge vs. Jenkiiis, 8 Story, 181 ; Jeicett vs. Cunard, 3 W. & M. C. C. R. 277 ; Graham vs. Sheken, 16 Legal Intel. 324 ; Harrison vs. Lemon, 3 Blackf. 51 ; Sutplien vs. Cnshman, 35 111. 186; BeWolfe vs. Strader, 26 111. 225 ; Dow vs. Chamberlin, 5 McLean, 281. (e) Delahay vs. McConnel, 4 Scam. 157 ; Coates vs. Woodworth, 13 111. 654 ; Miller vs. Thomas, 14 111. 428; Tillson vs. Moulton, 23 111. 648; Dewen vs. Blake, 44 111. 135 ; Hunter vs. Hatch, 45 111. 178 ; Smith vs. Doyle, 46 111. 451. (/) Brown vs. Gaffney,2S 111. 149; Shaver vs.Woodward, lb. 277; Rei gard vs. McNeil, 38 111. 400. (3) Taintor vs. Keys, 43 111. 332 ; Dwen vs. Blake, 44 HI. 135 ; ParmeUt VB. Lawrence, lb. 405. {h) Minor vs. Thompson, 46 III. 214. 352 BILLS TO REDEEM. Who may Redeem. a security in the nature of a mortgage, though it be an abso- hite conve3'anee in terras, shall be considered as a mort- gage." (^■) This statute is, however, only declaratory in its effect ; as such was the law before its passage. SECTION II. WHO MAT REDEEM. The equity of redemption is not only a subsisting estate and interest in the land in the hands of the heirs, devisees, assignees and representatives, strictly so called, of the mortgagor ; but it also may be asserted by any other persons who have acquired any interest in the lands mortgaged, by operation of law or otherwise in privity of title, {j) Such persons have a clear right to disengage the property from all incumbrances, in order to make their own claims beneficial or available. Hence a tenant for life, a tenant b}' the courtesy, a tenant in dower, a jointress, a reversioner, a remainderman, a judgment creditor, a junior mortgagee, and, indeed, every other person, being an incumbrancer, or having a legal or equitable title or lien thereon, may insist upon a redemption of the mortgage, in order to the due enforcement of their respective claims and interests in the land, {k) Even a person claiming under a prior or subsequent voluntary conveyance, may, as against a mortgagee, redeem. (Z) When any such person does so redeem, he becomes substituted to the rights and interests of the original mortgagee in the land, (m) A junior incumbrancer has a right to redeem from a prior (t) Act of 1874, in force July 1, 1874. (j) 4 Kent's Com. 162; 2 Story's Eq. Jur. i^291; Uplmm va. Brooks, 2 W. & M. 408. (k) 2 Story's Eq. Jur. g 1023 ; Pardee vs. Van Auken, 3 Barb. R. 534; Kinnoul vs. Money, 3 Swanst. 208 ; Dovme vs. Morris, 3 Hare, 394. (0 2 Fonb. Eq. B. 3. ch. 1. g 8, and note p ; 2 Barb. Ch. Pr. 193, 194; Dunlap vs. WUson, 32 111. 517. (m) 2 Story's Eq. Jur. § 1023. BILLS TO REDEEM. 353 Within what Time to be Filed. mortgage by paying the amount due accoixling to its terms as recorded, (w) As a general rule, the holder of the legal estate under the mortgagor is a proper person to redeem, whether he holds as trustee for others, or in his own right by a voluntary convey- ance from the mortgagor, {o) The complainant must be entitled to the legal estate of the mortgagor, or must claim a subsisting interest under him. (p) SECTION III. WITHIN WHAT TIME TO HE FILED. As a general rule there can be no redemption of a mortgage after twenty years from the time of the forfeiture, or of actual quiet and uninterrupted possession ; (q) unless circumstances are proved by the mortgagor showing an acknowledgment of his title by the mortgagee ; {r) or unless the mortgagor has lal>ored under some impediment ; and even in that case, according to Lord Kenyon's opinion, there can be no redemp- tion after ten years from the time the impediment has Iteen removed, (s) But it was held in Maryland that an infant is to be allowed twenty years at\;er he becomes of age to tile his bill to redeem, (t) Redemption will not be allowed before the time specified in a mortgage, even on tender of the principal of the debt, with interest, to the stipulated time of payment, and costs, (u) (n) Gardner vs. Emerson, 40 111. 296 : HoIbrooK- vs. Worcester Bank, 2 Curtis, 244. (0) Beach vs. SJiuic, 57 111. 17 : see Strang vs. Alhi,,U 111. 428 : Roberts vs. Flenmig, hZ 111. 196. (p) Grant vs. Duone, 9 Johns. 591 ; Pnrns vy. Brown, 4 Ired. Eq. 413. (q) Whiting vs. Whittj, Coop. 4 ; Demarest vs. Wynkoop. 3 Johns. Ch. 129 ; Beckford vs. Wade, 17 Ves. 99 ; S1.ee ts. Manhattan Co. 1 Paige, Ch. 48 ; Anon. 8 Atk. 313 ; Moore vs. Cable, 1 Johns. Ch. 385. (r) Barron vs. Martin, 19 Ves. 327 : Hodle vs.Realey, Mad. & Oeld. 181 ; Dexter vs. Arnold, 3 Sum. 152. (s) Beckford vs. Wade, 17 Ves. 99. it) Lamar vs. Jones, 3 Har. & McHen. 328 : 2 Barb. Ch. Pr. 194-195. (v) Abbe vs. Goodwin, 7 Conn. 377. 23 354 BILLS TO REDEEM. Parties to — Complainants. A mortgagor seeking to redeem from a sale of the premises by the mortgagee, imder a power in the mortgage, on the alleged ground of a defective notice of the sale and inadequacy of price, must file his bill in apt and reasonable time ; {v) and in such case the whole of the mortgage money must he ten- dered ; not merely the amount of the sale, (w) SECTION IV. PARTIES TO. 1. Complainants. — If the bill is brought by the mortgagor against the mortgagee, there having been no death or assign- ment on either side, it is, of course, that no other persons need be made parties. If the mortgagor is dead, then his heir, or his devisee, if the estate has been devised, is the proper party to redeem, if it is a mortgage in fee ; and if a mortgage for a term of years only, then the personal representative of the deceased, (x) If two estates are mortgaged, and by the death of the mortgagor, the equity of redemption of the two estates is vested in different persons, all of them must be made parties to a bill to redeem, (y) If the bill charges that a part of the mortgage, principal and interest, has been paid by the mortgagor, in his lifetime, the personal representative of the mortgagor, as well as his heir or devisee, is a necessary party to the account from what is due on the mortgage, (z) Indeed, as the personal assets are usually first to be applied in exoneration of the real estate mortgaged, it would seem that in a bill by an heir or devisee to redeem, he might properly make the personal representative of the mortgagor a party defendant, in order to have the assets so («) Samilton vs. Luhukee, 51 111. 415. {w) Collinn vs. Rifjgs, 14 Wallace, 491. (a;) 2 Barb. Ch. Pr. 195 ; Story's Eq. PI. § 182. {y) Gholmondeley vs.Clinton, 2 Jac. & W. 1, 2. (2) S. C. Id. 135 ; 2 Barb. Ch. Pr. 196. BILLS TO REDEEM. 355 Parties to — Complainants. applied ; and thus relieve himself from the burden of the incumbrance, {a) If a mortgagor has conveyed his equity of redemption to trustees, for the benefit of his other creditors, the trustees alone are generally the proper parties to a bill to redeem, and not any of the creditors entitled under the trust. (Jb) But a special case may exist, in which such creditors would be entitled to redeem ; as, for example, if the trustees should collude with the mort- gagee, or should refuse to sue, or should be insolvent, (c) In fiuch a case the bill should be brought in behalf of all the cred- itors ; for a few could not redeem for their own benefit, {d) Where the mortgagor has conveyed the estate, subject to the mortgage, and the grantee is to pay off' the mortgage, he may maintain a suit to redeem, without making the mortgagor a party. But if the conveyance be of the whole real estate, absolutely free from incumbrances, then the mortgagor should, or at least may, be made a party, in order to be bound by the decree, and to assist in taking the account ; he being primarily liable to discharge the mortgage. If the assignment is made to several persons jointly, all of them should be parties to the bill to redeem, {e) To a bill brought by a second or subsequent mortgagee, to redeem either one or all of the antecedent mortgages, the mort- gagor or his heir or other proper representative in the realty, is a necessary party ; for it is said the natural decree in such a case is that the second mortgagee shall redeem from the first mortgagee, and the mortgagor, or his representatives in the realty, shall redeem from him or stand foreclosed. And a court of equity in such case, endeavors to make a complete decree that shall embrace the whole subject, and determine upon the (a) Story's Eq. PI. ^ 182 ; 3 Barb. Ch. Pr. 196 ; Howell vs. Price, 1 P. VVms. 291 ; Bradshaw vs. Otitram, 13 Ves. 234 ; Duke of Cumberland vs. Coddrinqton, 3 Johns. Ch. 257. (6) Coop. Eq. PI. 175 ; Trowjhton vs. Binkes, 6 Ves. 573, 575. (c) TrougJUon vs. Binkes, 6 Ves. 573, 575. ((f) Id. lb. ; 2 Barb. Ch. Pr. 196. {e) Palmer vs. Earl of Carlisle, 1 Sim. & Slu. 433, 425 ; Trice vs. Haley, 24 Maine, 397; Story's Eq. PI. § 183. 356 BILLS TO REDEEM. Parties to — Defendants. rights of all the parties interested in the estate. {/) But in such a case, it seems, that tlie personal representative of the mortgagor would not he a necessary party, even though it might, perhaps, he competent to make him a party, {g) 2. Defendants. — In general tei'uis, it may be stated, that all persons ought to be made parties whose interests or rights may be affected by the decree, {h) The mortgagee is, of course, the only necessary and proper party in all cases, where there is no other outstanding interest under him. If the mortgage is in fee, and the mortgagee is dead, the heirs of the mortgagee, or other persons, in whom the legal estate is vested by devise or otherwise, must be made parties : because they have the legal title, and are to be bound by the decree. And the personal representatives of the mortgagee must also be made parties ; because, generally, they are entitled to the mortgage money, when paid, as it is to be returned to the same fund out of which it originally came, ii) But if the mortgage is of a term of years, created by the owner of the fee, the personal represen- tatives of the mortgagee only, without the heirs, are the proper parties ; for they alone are interested in the term, unless the term has been disposed of in favor of third persons ; in which case they also should be made parties, {j) When the mortgage has been absolutely assigned by the mortgagee, without the authority and privity of the mortgagor, it is not necessary, in a bill brought by the latter to redeem, to make any person but the last assignee a party to the bill, howe\'er many mesne assignments have been made ; foi', in such a case, the last assignee is understood to have contracted not only to stai>d in the place of the original mctrtgagee, and to represent him, but also to stand in the place, and as tlie I (/) Story's Eq. PI. ^ 183 ; Thompson vs. BoslevKUU, 8 Ch. W. 215. ((/) Fell vs. Broirn, 2 Bro. Cli. R. 278 ; 2 Barb. Ch. Pr. 196. 197 ; Palk vs. aiutoh, 12 Ves. 58, 59; Hohart vs. AhlwU. 2 P. Wms. 64:5. (h) Edwards on Parties, 87-98; Story's E(|. PI. ^ 188. (i) Story's Eq. PI. ^ 188 ; Coop. Eq. PI. :57; Anon. 2 Frerm. .52; Clark- !*on vs. Bowyer, 2 Vern. 66; Dexter vs. Arnold, 1 Sumner, 109. (j) Oshourn vs. Fallows, 1 Russ. & Mylne, 741 ; Coop. Eq. PI. 37 BILLS TO REDEEM. 357 Parties to — Complainants — Terms of Redemption. representative of all the other mesne assignees, until the title was taken by himself; and he may accordingly be decreed to convey, {k) But where the mortgagor seeks in his bill an account of rents and profits, or other sums received by the mortgagee before the assignment, the mortgagee should be made a party to the bill, as well as the assignee, for he is a necessary party to the account. (Z) Where the mortgagee has nut assigned liis whole interest in the mortgaged property, but he retains an interest in it in part, he is a necessary party, as well as the assignee, to a bill to redeem, [i/i) So, where there are successive mortgages, the second embracing a part only of the estate comjjrehended in the first, if the second mortgagee brings a bill to redeem the first mortgage, and the equity of redemption of the mortgagor in the different estates has become vested in dilferent persons, all of them should be made parties to the bill, for they are all intei'ested in taking the account, {n) Where the mortgagee has assigned his whole interest upon certain trusts, the trustee and cestiiis que trust, or beneficiaries, are equally necessary parties to the bill to redeem, {o) SECTION V. TERMS or EKDEMPTION. A mortgagor cannot redeem without paying what is really due ; and where a mortgagee buys in an incumbrance, he will be allowed, as against the mortgagor, all that is due upon it, (/•) Hill vs. Adams, 2 Atk. 39; Chambers vs. Goldwin, 9 Ves. 268, 269; Bishop of Winchester vs. Beaver, 3 Ves. 315, 316 ; Lennon vs. Porter, 2 Gray, 473. (0 Anon. 2 Freem. 59; Loicther vs. Carlton, 2 Atk. 139 ; Story's Eq. PI. ^ 190. (/ft) Hdbart vs. Abbott, 2 P. Wms. 643 ; Norrish vs. MarsJiall, 5 Mad. 47.5. (/( j Palk vs. Clinton, 12 Ves. 48 ; Gholmondeley vs. Clinton, 2 Jac. & Walk. 134 ; Story's Eq. PI. ^ 191. io) Whistler vs. Webb, Bumb. 53 ; Wetherell vs. Collins, 3 Mad. 255 ; Drnr vs. Harman, 5 Price, 319. 358 BILLS TO REDEEM. Terms of Redemption. although he may have bought it for less. But it is otherwise if the heir or trustee of a mortgagor buys in an incumbrance as against subsequent incumbrances and creditors ; in which case he can only be allowed what he has paid for the incum- brance, {p) A mortgagor filing a bill to redeem must pay the costs of persons defendants claiming under the mortgagee, upon the principle that, at law, the mortgage being forfeited, the mortgagee is at liberty to deal with it as his own prop- erty, {q) As a general rule, a party coming into a court of equity to redeem, pays costs to the defendant, in addition to the amount due upon the mortgage, although he obtains the relief prayed for; (/•) yet if the defendant improperly resists the claim of the complainant to redeem, or sets up an unconscientious defense, he will be refused his costs, and may be compelled to pay costs to the adverse party, in the discretion of the court, (s) There can be no redemption without an allegation of pay- ments, or a tender of the mortgage debt and interest, {t) But a bill for redemption, which sets forth a liquidation by the parties of the amount due, and a tender and refusal thereof, Avas held not to be defective for want of an offer to pay what should be found due on account, (u) Payment may be made or tendered after the day named in the mortgage, (v) Any attempt to limit or fetter the right to redeem will be held void, (w) If several are interested in the equity of redemption, and (p) Darcey vs. HaU, 1 Vern. l8; Williams vs. Springfield, lb. 476. (q) Wetherell vs. Collins, 3 Mad. 255 ; 3 Barb. Ch. Pr. 199. (r) Vroom vs. Ditmas, 4: Paige, Cb. 526; Benedict vs. Oilman, lb. 58; Slee vs. Manhattan Co. lb. 49. (s) Id. lb. ; 2 Barb. Cb. Pr. 199. {t) Saunders vs. Frost, 5 Pick. 259 ; Ban/.- of South Carolina vs. B^se, 1 Strobb. Eq. 257 ; Hooper vs. Bailei/, 28 Miss. 328. {u) Barton vs. May, 3 Sandf. Cb. R. 450. (v) Rogan vs. Walker, 1 Wis. 527. (?o) Robinson vs. Farelly, 10 Ala. 472 ; Henry vs. Davis, 7 Jobns. Cb. 40; (Jlark vs. Henry, 2 Cow. 324 ; Wright vs. Bates. 13 Vt: 341 ; Dougherty vs. Colgan, 6 Gill & J. 275. BILLS TO REDP]EM. 359 Terms of Redemption — Frame of Bill. only one is willing to redeem, he must pay the whole mortgage debt, [x) The tender of the amount due must be absolute ; where the complainant offered to pay if the defendant would reassign aiid tmnsfer to him, it was held insufficient; (3/) and' not only the original consideration, but subsequent advances made by the mortgagee, must be tendered ; (s) nor can the mortgagor insist upon a release, {a) A party seeking to redeem a mortgage tainted with usury, will be required to pay legal interest, on the principle that he who asks equitable relief should do equity, and equity would require him to pay legal interest, (b) It is essential to a bill to redeem a mortgage, that the com- plainant should offer to pay the debt, interest and costs, (c) But it is not essential that he should pay the money due before filing his bill, or that he make any allegation of such offer. Such an offer would, however, entitle him to costs and a sus- pension of interest, {d) SECTION VI. FKAME OF BILL. A bill to redeem may properly be framed with a double aspect, so that the complainant may avail himself of a tender if his proof thereon shall be sufficient, or, failing in that, pray an account and be permitted to pay the amount found due. Regularly, however, the prayer should be in the alternative, ie) {cc) Gibson vs. Crehone, 5 Pick. 146 ; Taylor \s. Porter, 7 Mass. 355 ; Smith VB. Kelley, 27 Maine, 237. (y) Wendell vs. 2iew Hampshire Bank, 9 N. H. 404. (g) Ogle vs. Ship, 1 A. K. Marsh. 287 ; see Broim vs. Oaffney, 32 III. 251. (a) Loving vs. Cook, 3 Pick. 48. (6) Snyder vs. Griswold, 37 111. 216 ; Cushman vs. Sutphen, 42 111. 256 ; see Gerrish vs. Black, 104 Mass. 400 ; Parkhurst vs. Gumminga, 56 Maine, 155. (c) Beekman vs. Frost, 18 Johns. 144 -,8.0.1 Johns. Ch. R. 288. {d) Barnard vs. Cushman, 35 111. 452 ; Dwen vs. Blake, 44 111. 135. (e) Gooding vs. Riley. 50 N. H. 400. 360 BILL8 TO REDEEM. Bill by Heirs of Mortgagor against Mortgagee to Redeem. The coinplaiuant should offer in his bill to pay the amount ;aid sum of dollars was paid to your orator in considera- tion of the absolute purchase of the said premises ; and that the said deed was not intended between the parties thereto to be a mere security for the said sum of money, and interest as aforesaid ; whereas, your orator charges the contrary of such ])retenses to be the truth; and, upon the pretenses aforesaid, the said C. D. refuses to come to any manner of account with your orator, or to re-convey the said premises to him, although your orator has frequently, and in a friendlv manner, applied to him for that purpose, and offered to pay him Mdiatever, if anything, should be found to be due to the said C. D. upon an account being taken with reference to the said transaction. All of which actings, doings and pretenses of the said 0. D. are contrary to equity and good conscience, and tend to tiie inaiiifest wrong, injury and oppression of your orator. Forasmuch, therefore, as your orator is without remedy in the premises, except in a court of equity, and to the end tiiat the said C. D., who is made a party defendant to this bill, may be required to make full and direct answer to the same, hut 3G4 BILLS TO REDEEM. Bill to Redeem Goods Pledged, etc. Tioi wnder oath^ the answer y/nde}' oath being hereby waived ; and that an account may be taken under the direction of this liunorable court, of what is now due and owing to the defend- ant for the principal sum and interest aforesaid; and that an account may also be taken of the rents and profits of the said premises, received by the defendant, or by any other person on his behalf, or which, without his willful neglect or default, might have been received by him since he entered into the possession of said premises ; and that, in taking such account, rests may be made from time to time, when and as the rents and proiits shall appear to have exceeded the interest in arrear ; and that upon the payment by your orator of what, if anything, shall be found remaining due to the defendant in. respect of the said principal sum and interest, which your orator hereby otiers to pay, the defendant may be decreed to surrender and deliver up the possession of the said premises t(» your orator ; and that the defendant may be compelled to re-convey the said premises to your orator by sufficient and proper deed of conveyance in fee ; and that he be compelled to surrender to your orator all deeds, writings and tax receipts pertaining to said premises ; and that your orator may have such other and further relief as equity may require and to yoiir honor shall seem meet. May it please your honor, etc. {P?'ay for process as in JYo. ISJf, ante, ;page 360.) No. 136. Bill to redeein goods which were deposited as a security for money lent. To the Honorable , Judge of the Court of the County of , in the State of — , In Chancery sitting : Your orator, A. B., of, etc., respectfully represents unto your honor, that your orator having occasion for a sum of money for the purpose of his business, made application to one C. D., of, etc., the defendant hereinafter named, to lend him the same, and thereupon the said C. D., on or about , advanced and lent to your orator the sum of dollars, and in order to secure the repayment thereof, with interest at the rate of — per cent, per annum, your orator deposited with the defendant the following described property, to wit: {Here . describe it,) which was of the value of dollars and up- wards, and at the same time executed and delivered to the defendant a bill of sale of the said goods and chattels so deposited with him, but it was not meant and intended thereby, BILLS TO REDEEM. 365 Bill to Set Aside Foreclosure, and to Redeem. cither by your orator or the defendant, that the said trans- action should amount to an absohite sale of the said goods and chattels to the defendant, but it was expressly agreed between 3^our orator and the defendant that your orator should, never- theless, be at liberty to redeem the same. And your orator further represents, that being desirous to redeem the said goods and chattels, he has repeatedly applied to the defendant and has offered to repay him the said sum of dollars, with lawful interest thereon, on having said goods and chattels re-delivered to him; with which just and reasonable ]-equests your orator well hoped that the defendant would have complied, as in justice and equity he ought to have done. But now so it is, may it please your honor, he, the said C. D., denies that said property was delirered to him as a security, and refuses to allow your oratoi* to redeem the same, or to re-deliver the said pr()])erty to your orator. Forasmuch, therefore, as your orator is without adequate remedy in the premises, except in a court of equity ; and to the end that the said C. D., who is made party defendant to this bill, may be required to make full and direct answer to the same, hut not under oath, the ansioer under oath heing hereby ■waived ; and that an account may be taken of what is due to the defendant, for principal and interest, in respect to the said loan of dollars ; and that upon payment thereof by your orator, which he hereby offers to pay, the defendant may be decreed to deliver over to your orator the said goods and chattels so deposited with him as aforesaid ; and that your orator may have such other and further relief in the premises as equity may require and to your honor shall seem meet. May it please your honor to grant the writ of summons in chancery, directed to the sherifi' of tlie said county of , commanding him to summon the defendant, C. D., to appear before the said court on the ffrst day of the next term thereof, to be held at the court house, in , in the county aforesaid, then and there to answer this bill, etc. Sol. f 07' Complainant. No. 137. Bill to set aside a decree of foreclosure, etc.^ hy heir of mort/fagor against mortgagee. To the Honorable , Judge of the (\nirt of the County of , in the State of , In Chancery sitting : Your orator, A. B., of, etc., respectfully represents unto vour honor, that B. B., late of, etc., now deceased, in his lifetime, 366 BILLS TO REDEEM. Bill to Set Aside Foreclosure, and to Redeem. on, etc., executed a mortgage deed in fee simple to one C. D., the defendant hereinafter named, upon the following described premises, to wit : {Here insert description /) which said mort- gage was made to secure the payment of a certain promissory note of the same date, for the sum of dollars, payable to the defendant after date ; which said mortgage T^as recorded in the recorder's office of said county, on, etc., as will more fully appear from a copy of said mortgage hereto attached and marked "Exhibit A." Your orator further represents, that the said B. B. departed this life, on, etc., leaying your orator, his son and only heir at law, then of about the age of years. Your orator further represents, that during his minority, and on, etc., the defendant filed his bill of complaint in this court against your orator, for a foreclosure of his right of redemption in the said mortgaged premises ; but your orator was not repre- sented in such bill to be then an infant ; and the defendant caused and procured one E, F., since deceased, who had acted as the solicitor in the management of your orator's said father's affairs in his lifetime, to put in an answer in the name of your orator, and without eyer acquainting your orator or any of his friends or relations thereof; in which said answer a much greater sum was stated to be due from your orator, upon the said promis- sory note and mortgage to the defendant, than in fact was really owing to him, and for which it was untruly stated that the said mortgaged premises were an insufficient security ; and in conse- quence of such answer being put in, the defendant afterwards, on, etc., in conjunction with the said E. F., obtained an abso- lute decree of foreclosure against your orator ; which your orator has only lately discovered, and of which he had no notice ; and in which said decree no day was given to your orator, who was an infant when the same was rendered, to redeem when he became of the age of twenty-one years ; as by the record and proceedings of the said foreclosure now remaining in this court, reference thereto being had, will more fully appear. Your orator further represents, that he attained the age of twenty-one years on, etc. ; and shortly afterwards, having dis- covered that such transactions had taken place during his minority as aforesaid, by himself and his agent represented the same to the defendant, and requested him to deliver up posses- sion of the said mortgaged premises to your orator, upon being paid the principal sum and interest, if any, actually and fairly due thereon, which amount your orator tendered, and has always been ready to pay, and which would have been paid by the BILLS TO REDEEM. 367 Decree. personal representatives of the said B. B., out of liis personal assets, during your orator's minority, had any application been made for that purpose, but this the defendant refused to do. Forasmuch, therefore, as your orator is without remedy in the premises, except in a court of equity ; and to the end that the said C. D., who is made party defendant to this bill, may be required to make full and direct answer to the same, hut not under oath, the answer under oath being hereby waived ; and that the said decree of foreclosure may l)e set aside, and be de- clared to be null and void ; and that an account may be taken of what, if anything, is now due to the defendant for principal and interest on said promissory note and mortgage ; and that an account may also be taken of the rents and profits of said mortgaged premises, which have or might have been received by or on behalf of the defendant since he came in possession thereof; and if the same shall appear to have been more than the principal and interest due, then that the residue thereof may be decreed to be paid to your orator, and that your orator may be at liberty to redeem the said mortgaged premises on payment of the principal sum and interest, if any, remaining due on the said security ; and that the defendant may be de- creed, on being paid such principal sum and interest, which your orator hereby offers to pay, to deliver up the possession of said mortgaged premises, free from all encumbrances, to your orator ; and that the said mortgage may be fully satisfied and released of record ; and that your orator may have such other and further relief in the premises as equity may require and to your honor shall seem meet. May it please your honor to grant the writ of summons in chancery, directed to the sheriff* of the said county of , commanding him that he summon the defendant, C. D., to appear before the said court, on the first day of the next term thereof, to be held at the court house in in the county of aforesaid, then and there to answer this bill, etc. Sol. for Complainant. SECTION VII. DECKEE. If the mortgagor is permitted to redeem, the decree directs a reference to the master in chancery to ascertain and report the amount due for principal and interest, and orders the com- plainant to pay that amount within a specified time after the confirmation of the master's report, together witli tlie costs ; 368 BILLS TO REDEEM. Decree for Redemption. and that upon his so doing, the mortgagor shall convey to him the mortgaged premises. And it directs that upon the com- plainant's default, the bill be dismissed with costs. (^) The time allowed for the redemption is not fixed and certain, but rests in the sound discretion of the court, to be regulated by circumstances. (A) iVnd, in general, the time allowed will not be afterwards extended. (*) Where the party tails to redeem within the time specified, the usual decree is that the bill be dismissed ; and such dis- missal amounts to a bar of the equity of redemption, {j) But the dismissal of the bill, for want of prosecution, will not have that effect, {k) The decree of dismissal may be moved for. of course, after the master's report has been confirmed, upon an affidavit that the time has expired, and the money has not been paid. {V) No. 138. Decree for redemption. {Caption, and title of cause as in No. 79. untL'. pu(/e 198.) This cause having come on to be heard upon the bill of com- plaint herein, the answer of the defendant tho-eto. the replica- tion of the complainant to such answer, and the proofs taken in said cause, and having been argued by counsel for the respective parties; and the court being fully advised in the premises, doth find : that the allegations in the said bill contained are true as therein stated : and that the equities of this cause are with the complainant. It is therefore ordered, adjudged aoid deereech by the court, that this cause be referred to the master in chancery of this court, to take an account of what is due l<^9^ "■) SECTION VI. STRICT FORECLOSURE. The object of a bill for strict foreclosure is to obtain a decree for the payment of the mortgage debt within a short period to be fixed by the court ; or that, in default thereof, the mortgagor, and all persons claiming under him, may be barred and fore- BILLS TO FORECLOSE MORTGAGES. 385 Strict Foreclosure — Parties to. closed of all rights and equity of redeinption in the mortgao-ed premises, and his and their title thereto be extinguished and vested in the mortgagee, without a sale thereof. Where a bill for a foreclosure shows that the mortgage was given for the entire purchase money, no part of which or the interest had been paid, that the value of the premises does not exceed the amount due, and that they are but a slender and the only security for the debt, the mortgagor having absconded, a strict foreclosure is not improper. (A") A strict foreclosure is not, as a general rule, proper where thei'e are other incumbrances on the property, or creditors, or purchasers of the equity of redemption, (l) If it does not appear that the mortgagor is insolvent, or that the mortgaged premises are nut of sufficient value to pay the . — The parties to a bill for strict foreclosure, are, in general, the same as to a bill for foreclosure and sale. The complainant should bring before the court all persons who have a right to redeem the premises, and all persons claiming an interest in the mortgage under himself. Therefore, if there are several derivative mortgagees, they must all be made parties, (o) A strict foreclosure cannot be entered where there are cred- itors entitled to the surplus, who are not made parties to the suit, (j?) (k) Wilmn vs. Geisler, 19 111. 49. {I) Farrell vii. Parlier, oO 111.270; see JoJirmoi, vs. Donnell, 15 111.97; Wener vs. Heintz,!'^ 111.2.59; Stecens vs. Bichnell, 27 111.444; Horner vs. Zimmerman, 45 111. 14. (m) Sheldon vs. Patterson, 55 111. 507. (rt) Vanmnt vs.AUmon, 23 111. 31 ; 4 Kent, Com. 1M2: but see Sagory va. Wissmau, 2 Benedict, 240. (o) Hobart vs. Mbot, 2 P. Wnis. G4H. (p) Warner vs. Hilm. 1 Gilm. 220. 25 386 BILLS TO FORECLOSE MORTGAGES. Form of Bill of Strict Foreclosure. Form of hill. — The form of a bill for a strict foreclosure is nearly the same as that for a sale. The prayer, however, is different. It prays that an account may be taken of what is due to the complainant on his mortgage, and that the mort- gagor may be decreed to pay the amount found due, by a short day to be appointed by the court ; or, in default thereof, that the mortgagor, and all persons claiming under him, maybe debarred and foreclosed of, and from, all rights and ccniity of redemption in, or to, the mortgaged pi'emises. Nit. IJiJ^. Bill for strict foredosure. To the Honorable , Judge of the Court of the County of , in the State of , In Chancery sitting: Your orator, A. B., of etc., respectfully represents unto your honor, that on, etc., one C. D., of, etc., one of the defendants hereinafter named, became and was indebted to your orator in the sum of dollars, and being so indebted, on the same day, and in consideration thereof, made and executed to your orator his promissory note of that date for that amount, pay- able to your orator after date, with interest, etc., as by the said note when produced, and a copy of the same hereto attached, marked " Exhibit A," and made a part of this bill of complaint, will more fully appear. Your orator further represents that the said C. D. and E. D., his wife, on, etc., to secure the payment of the principal sum and interest mentioned in the said promissory note, made and executed under their hands and seals, and delivered to your orator a mortgage, conditioned for the payment of the said sum of dollars and interest mentioned in said note, accord- ing to the tenor and effect thereof; by which said mortgage the said C. D. and E. D., his wife, conveyed to your orator, in fee, the following described real property, to wit : {Here insert description of raortgaged premises ;) which said mortgage was duly acknowledged ; and afterwards, on, etc., duly recorded in the office of the recorder of the said county of , in the state of , in book — , of mortgages, at page — , as by the said mortgage and its accompanying certificates of acknowledg- ment and recording, ready to be produced in court, and a copy of the same hereto attached, marked " Exhibit I>," and made a part of this bill, will more fully appear. Your orator further represents that the sum of dollars, BILLS TO FORECLOSE MORTGAGES. 38^ Form of Bill of Strict Foreclosure. with interest from, etc., remains due and unpaid to your orator on the said note and mortgage, and that no proceedings at law have been had to recover the debt secured thereby, or any part thereof. Your orator lurther represents that the said C. D. is now wholly insolvent, and unable to redeem tlie said premises ; and that the said mortgaged property is meagre and scant security for the said sum of dollars, and the interest mentioned in the said note and mortgage, and now due your orator; and that the value thereof is wholly insufficient to pay the amount so due, with the costs of this proceeding. And your orator further represents that E. F. and G. H., of, etc., have, or claim to have, some interest in the said mort- gaged premises, or some part thereof, as judgment creditors or otherwise, which interests, if any, have accrued subsequent to the lien of the said mortgage of your orator, and are subject thereto. Forasmuch, therefore, as your orator is without remedy in the premises, except in a court of equity ; and to the end that the said C. D., E. D., E. F. and G. H., who are made parties defendant to this bill, may be required to make full and direct answer to the same, hut not under oath, the answer under oath being hereby loaived ; that an account may be taken in this behalf, by or under the direction of this honorable court ; that the defendants, or some of them may be decreed to pay to your orator what may be found due to him on taking the said account, together with his costs of this suit, by a short day to be appointed by the court for that purpose ; or, in default thereof, that the defendants, and all persons claiming under them, may be absolutely and forever debarred and foreclosed of and from all right and equity of redemption in or to the said mortgaged premises, and every part thereof; and that the said C. D. may deliver up to your orator all deeds, papers or writings in his custody or power relating to or concerning the said mortgaged premises, or any part thereof; and that your orator may have such other and further relief in the premises as equity may require and to your honor shall seem meet. May it please your honor, etc. {Pray j^ocess as in No. IJ^l, ante, page 380, and add exhibits.) 388 BILKS TO FOKECLOt^E i\I0ETGAGE8. Defenses to. SECTION VII. DEFENSES TO. A mortgag-or is not permitted to deny his own title, (p) Where a mortgage is given upon one tract of land to secure the purchase money of another tract, which the mortgagee covenants? to convey with warranty, but to which he has no title, such failure of title in the vendor is a good defense in equity in a proceeding to foreclose the mortgage, (q) An assignee of a note secured by mortgage takes it subject to prior equities between the original parties, (r) It is said, that a mortgagee, with notice of subsequent liens, has no right to release his mortgage, to the prejudice of such liens, (s) Upon this principle it has been held, that if the mort- gagee, for a consideration, release that portion of the land which was primarily liable for the debt, he thereby discharges the other portion, (t) So, if two estates are mortgaged in one deed, and transferred to different persons, and one released by the mortgagee ; the owner of the other, on redeeming, cannot compel contribution, but may claim a deduction from the debt in proportion to the value of the parcel released, (u) A party seeking to foreclose a mortgage tainted w'ith usury, and the usury being established, a forfeiture of all interest is the necessary consequence. If, however, the mortgagor was seeking relief against a usurious mortgage, then the court would require him to pay legal interest, on the principle that he who asked equitable relief should do equity, and equity {p) Racine & Miss. R. R. Go. vs. Farmer's Loan d- Trust Co. 49 111. 331. (q) Smith vs. Newton, 38 111. 230 ; see alsn Weaver vs. Wilson, 48 111. 135. (r) Lock vs. Fulford. 52 111. 166 ; Huhhard vs. Turner, 3 McLean, 519. (s) McLean vs. Lafayette, etc. 3 McLean, 587. (t) Pairton vs. Harrier, 11 Penn. 312 : hnt see Holman vs. Bank, etc. 12 Ala. 369. («) Parkman va.WelcJi, 19 Pick. 238; see also Iglehart vs. (Jrane, 42 111. 261 ; Tjock vs. Fulford, 52 111. 166 ; see further defenses of this nature, 1 Hilliard on Mortijagea, 327, et seq. BILLS TO FORECLOSE MORTGAGES. 389 Decree of Foreclosure. would require him to pay legal interest. lu such a case, a court of equity could prescribe the terms of its interference, {v) We have not the space to enter into a more full examination of defenses to a tbreclosnre. AVorks specially treating of the subject of mortgages will have to be consulted, {w) SECTION VIII. DECREE OK V »IiECLOSURE. We have already considered the general requisites of a decree in equity, and need now only mention a few points having special reference to a decree of foreclosure. The statute of Illinois provides that, " in all decrees here- after to be made in suits in equity directing foreclosure of mort- gages, a decree may be rendered for any balance of money that may be- found due to the complainant over and above the pro- ceeds of the sale or sales, and execution may issue for the col- lection of such balance, the same as when the decree is solely tor the payment of money. And such decree may be rendered conditionally, at the time of decreeing the foreclosure, or it may be rendered after the sale and the ascertainment of the balance due : Provided, that such execution shall issue only in cases where personal service shall have been had upon the defendant or defendants personallj- liable for the mortgage debt, unless their appearance shall be entered in such suit." (x) The 92d rule for practice in the c(.»urts of equity of the United States, adopted at the December term, 1863, provides, " that in suits in equity for the foreclosure of mortgages ill the circuit courts of the United States, or in any court of the terri- tories having jurisdiction of the same, a decree may be rendered for any balance that may be found due to the complainant over and above the proceeds of the sale or sales, and execution may issue for the collection of the same, as is provided in the Sth (0) Snyder vs. Grimold, 37 111. 216 ; Cmhman vs. Sutphen, 42 III. 256. (w) See Hilliard on Mortgages ; Fisher on Mortgages, etc. (a-) Act of 1874, not yet published, in force July 1, 1874 ; see McClurg VB. PIdllips, 40 Mo. .31.^ ; Siuil vs. Stanley, .58 111. i\. 390 BILLS TO FORECLOSE MORTGAGES. Decree of Foreclosure. rule of this court regulating the equity practice, where the decree is solely for the payment of money." Under rule 92, above referred to, the power of the circuit court of the United States, in a foreclosure suit, to order a general execution for any balance remaining due, after sale ot the mortgaged premises, is a discretionary one. {y) The common practice in courts of chancery, upon a fore- closure of mortgages, is to decree a surrender of the possession and title papers by the mortgagor and those claiming under him, {z) Where the decree directs the mortgagor, or the party in pos- session of the mortgaged premises, to surrender up the poi^ses- sion to the purchaser, the court, upon an affidavit showing the service of a copy of the order, accompanied with the demand of the possession, and a refusal of the party to comply, will issue a writ of execution of the order to put the purchaser in possession, {a) But where the decree contains no such order, the court, on motion, will make the order ; and upon the like service of a coj)y and demand of possession, the court will, on motion, and without notice, order an injunction against the party to surren- der possession ; and then, on an affidavit of the service of the injunction and refusal to deliver possession, a writ of assistance to the sheriff to put the purchaser in possession issues of course, on motion and without notice, (b) When premises have been mortgaged, and subsequently parcels of, or undivided interests in the same lands have been conveyed or incumbered, on a foreclosure of such mortgage, the decree should provide that the premises be sold in the inverse order of such conveyances or incumbrances, (c) iy) Phelps vs. Loyhed, 1 Dillon, 512. (2)' Lairrence vs. Lane, 4 Gilm. 354. (a) Aldrich vs. Sharp, 3 Scam. 261. (6) lb. ; Jackson \s.Warren, 32 111. 331. (c) Briggs vs. Kaufman; 2 Mich. N. P. 160; sec Sibley vs. Baker, 23 Mich. 312 ; McCvllum vs. Turpie, 32 Ind. 146 ; see Lock vs. Fulford, 52 111. 156 ; Payne vs. Avery, 21 Mich. 524 ; contra, see Barney vs. Myers, 28 Iowa, 472. BILLS TO FORECLOSE MORTGAGES. 391 Form of Decree — Pro confesso. A decree of strict foreclosure, which neither finds the amount due, nor gives time for redemption, but is final and conclusive in the first instance, cannot be sustained in the absence of some special law to authorize it. (^d) No. IJfS. Decree of fm^ecUsure and sale, pro confess©. {Caption, and title of cause as in No. 79, ante, 2>age 198.) And now on this daj comes the complainant, by his solicitor, and it appearing to the court here, from the writ issued herein to the sherifl:" of the county of , and the return thereon, that the defendants C D. and E. F. had been duly served with process herein, at least ten days prior to the first day of the present term of this court, and the defendants having been severalh' three times called in open court to plead, answer or demur to the complainant's bill, came not, but herein made default ; it is therefore ordered, adjudged and decreed that the same be taken for confessed against the said defendants. And the court having ordered this cause to be referred to the master in chancery of this court, to take proofs of the mat- ters stated in the bill, and to compute the amount due the comj^lainant upon the note and mortgage mentioned in said bill ; and the said master having made report thereof to the court, which said report is hereby approved and confirmed by the court ; and thereupon this cause coming on for a final hearing upon the bill and the said report of the master ; and the court being fully advised in the premises, doth find : That the allegations in said bill contained are true, as therein stated ; that the court has jurisdiction of the subject matter, and the parties in this cause ; and that the equity of this cause is with the complainant ; and that there is now due from the defendant C. D. to the complainant, for principal and interest on said note and mortgage, the sum of dollars. (*) It is therefore ordered, adjudged and decreed, by the court, that the defendants pay to the complainant, within days from this date, the said sum of dollars, with la^-ful inter- est to be computed thereon, from this day until paid, and also the costs of this suit, to be taxed by the clerk of this court. And it is further ordered, adjudged and decreed, that in de- fault of said payment being made as aforesaid, by the defendants, then, and in tliat case, the said mortgaged premises mentioned in the bill of complaint in this cause, to wit : {Hei'e describe (d) Clark- vs. Ref/b'irn, 8 Wallace, 318. 393 BILLS TO FORECLOSE MORTGAGES. Form of Decree — Pro confesao. the mortgaged premises^ or so much thereof as may be sutficient to realize the amount so due the complainant, principal and interest, and also the costs of this suit, including the fees, dis- bursements and commissions on the sale herein mentioned, and which may be sold separately without material injury to the parties interested, be sold at public vendue, for cash in hand, to the highest and best bidder, at the front door of the court house in said county of ; that the master in chancery of this court execute this decree ; that he give public notice of the time and place of said sale, by previously publishing the same for the space of days in a newspaper published in said county ; and that the complainant, or any of the parties in this cause, may become the purchaser or purchasers ; that the said master, on such sale being made, execute a certificate of pur- chase to each purchaser or purchasers thereof, or any portion thereof; which certificate shall specify the lands or tenements purchased by such purchaser or purchasers, and the sum paid therefor ; or, if pui'chased by the complainant in said bill, the amount of his bid, and the time when the purchaser will be entitled to a deed for such lands or tenements, unless the same shall be redeemed according to law, and the said master shall also tile, in the office of the recorder of said county, a duplicate of such certificate or certificates signed by him. And the said master, out of the proceeds of such sale, shall retain his fees, disbursements and commissions on said sale ; that he pay the officers of this court their costs in this suit ; and that out of the remainder of said proceeds he pay to the complainant the said sum of dollars, together with legal interest thereon, from the date of this decree, to the day of sale ; or, if such remainder shall be insufficient to pay the whole of said amount and interest, as aforesaid, then that he apply said remainder to the extent to which it may reach in satislac- tion of said amount and interest ; and that the said master take receipts from the respective parties to whom he may have made payments as aforesaid, and file the same, together with his report of sale, in this court. And that, in case the said premises shall sell for more than sufficient to pay the principal, interest and costs in this suit, then that the said master, after making ])ay- ments as aforesaid, bring such surplus moneys into court with- out delay, to abide the further order thereof. i\.nd it is further ordered, adjudged and decreed that the defendants, and all persons claiming by, through or under them, since the commencement of this suit, be forever barred and foreclosed from all equity of redemption, and claim of, in and to said mortgaged premises, or any part thereof, if the BILLS TO FOEECLOSE MORTGAGES. • 393 Form of Decree — Pro confesso. same are not redeemed, according to law, by the defendants, their heirs, executors, administrators or grantees, within twelve months next after the day of such sale, and by all jud'^nent creditors, and their representatives and assigns w\i\x\n Ji'f teen months next after the day of said sale ; and that at the expira- tion of said fifteen months next after the day of said sale, if said mortgaged premises, or any portion thereof, are not redeemed as aforesaid, then, in that case, upon the production to the then acting master in chancery, and tiling in his office of the certilicate of purchase executed by the master in chan- cery, as aforesaid, to the purchaser or purchasers of said mort- gaged premises, or any portion thereof, by such purchaser or purchasers, his or their re])resentatives or assigns, said master shall make, execute and deliver to such purchaser or purchasers, or his or their representatives or assigns, good and sufficient conveyance or conveyances, in fee simple of said premises, or such portion thereof as shall have been sold to such purchaser or purchasers respectively. And it is further ordered, adjudged and decreed, that upon the execution and delivery of the conversance or conveyances as aforesaid, the said purchaser or purchasers, his or their repre- sentatives or assigns, be let into possession of the portion of t^aid mortgaged premises so conveyed to him or them ; and that any of the parties in this" cause, who may be in possession of said premises, or any part thereof, and any person who, since the commencement of this suit, has come into possession, under them or either of them, on the production of the master's deed of conveyance, and a certified copy of the order of this court, confirming the report of said sale, shall surrender pos- session thereof to such purchaser or purchasers, their repre- sentatives or assigns, and on refusal so to do, will be con- sidered in contempt of this court. And it is further ordered, adjudged and decreed, that if the moneys arising from said sale shall be insufficient to pay the amount so due the complainant, with interest as aforesaid, after deducting the costs and expenses of sale, as aforesaid, that said master specify the amount of such deficiency in his report of said sale, and that on the coming in and confirmation of said report, the defendant C. D., who is personally liable for the payment of the debt secured by said mortgage, pay to the com- plainant the amount of such deficiency, with interest thereon, from the date of such last mentioned report, and that the com- plainant have execution therefor. It is further ordered, that the master in chancery, if practica- ble, report his proceedings in the premises to the court, at the 394 • BILLS TO FORECLOSE MORTGAGES. Decree of Sale — Decree of Strict Foreclosure. first term of this court, to which time this cause is hereby continued. No. llt.6. Decree of foreclosure^ and sale upon a hearing. {Caption., and title of cause as in JVo. 79, a,nte, page 198.) This cause having come on to be heard upon the bill of com- plaint herein, the answers of the defendants thereto, the repli- cation of the complainant to such answers, and the proofs taken in said cause, and having been argued by counsel for the respec- tive parties ; and the court being fully advised in the premises, doth find : that the allegations in the said bill contained are true as therein stated ; and that the equities of this cause are with the complainant ; and that there is now due from the defendant C. D. to the complainant, for principal and interest 071 said note and mortgage, the sum of dollars. {Proceed with the ordering part as in No. IJfS, ante, page S91, from, the asterisk. * ) No. Ili7. Decree of strict foreclosure. {Proceed as in No. llfi^ ahove, to the asterisk *, and then as follows :) And the court further finds, that the defend- ant C. D. is now wholly insolveiit and unable to redeem the said mortgaged premises ; and that the said mortgaged prem- ises is meager and scant security for the amount so found to be due as aforesaid ; and that the value of said premises is wholly insufficient to pay the amount so found to be due and the costs of this proceeding ; and that no benefit can inure to the defendants, or either of them, by a sale of said mortgaged premises. It is therefore ordered, adjudged and decreed, by the court, that the defendant pay to the complainant within months from this date, the said sum of dollars, with lawful inter- est to be computed thereon from this day until paid, and also the costs of this suit, to be taxed by the clerk of this court. And it is further ordered that upon the defendant paying to the complainant the sum of dollars as aforesaid, withiti the time above mentioned, that the complainant do reconvey the said mortgaged premises to the defendant C. D., by a suit- able or proper instrument of convej'ance ; to be approved by the master in chancery of this court, in case the said parties cannot agree upon the form thereof; and further that the com- plainant cancel and discharge such mortgage of record. But in case of default of the defendant's paying to the complainant BILLS TO FORECLOSE MORTGAGES. 395 Decree of Strict Foreclosure. such principal, interest and costs as aforesaid, by the time lim- ited for that purpose, then it is ordered, adjudged and decreed, that the defendant be forever barred and foreclosed from all equity of redemption, and claim of, in and to said mortgaged premises, to wit: {Here describe the mortgaged premises) and to any part thereof; and that the complainant or his legal representatives or assigns, be let into possession thereof; and that the parties in this cause, who may be in possession of said premises, or any part thereof, and any person who, since the commencement of this suit, has come into possession under them, or either of them, on the production of a certified copy of this order, surrender the possession thereof to the complain- ant, his representatives or assigns, and on refusal so to do, be considered in contempt of this court. CHAPTER XXIX. creditor's bill. Section. 1. When a Creditor's Bill may be Filed. 2. What may be Reached by. 3. Parties to the Bill. 4. Priority and Lien op Bills. 5. Frame of Bn>L. SECTION I. WHEN A creditor's BILL MAY BE FILED. The jurisdiction of a court of chancery in suits brought by judgment creditors to enforce the collection of their judgments, after having exhausted their remedy at law, although it may have previously existed, is generally expressly declared and particularly defined by statutes. The statute of Illinois, with respect to bills of this nature, which is the foundation of the present practice of the court in such cases, in that state,^ is as follows : " Whenever an execution shall have been issued against the property of a defendant, on a judgment at law or in equity, and shall have been returned unsatisfied, in Avhole or in part, the party suing out such execution may file a bill in chancery against such defendant, and any other person to compel the discovery of any property or thing in action, belonging to the defendant, and of any property, money or thing in action due to him, or held in trust for him, and to prevent the transfer of any such property, money or thing in action, or the payment or delivery thereof, to the defendant, except when such trust has, in good faith, been created by, or the fund so held in trust has proceeded from, some person other than the defendant himself. The court shall have power to compel such discovery, and to prevent such transfer, payment or delivery, and to decree satisfaction of the sum remaining due on such judgment, CREDITOR'S BILL. 397 Nature of — When Proper. out of any personal property, money or things in action, helun^- ing to the defendant, or held in trust for him, with the excep- tion above stated, which shall be discovered by the proceed in o-s in chancery, whether the same were originally liable to be taken in execution at law or not : Provided., that no answer made to any bill tiled under this and the preceding section, shall be )-ead in evidence against the defendant on the trial of any in- dictment for fraud charged in the lull." {a) When proper. — A creditor must lirst obtain a judgment and seek to collect his debt by execution before he can resort to the equitable estate of his debtor. (5) But in proceedings against intestate estates which are insolvent, a resort to equity may be had without this preliminary step, since, by the statute, an execution cannot issue upon a judgment against an adminis- trator, (c) In order to maintain a strict creditor's bill within the mean- ing of the section of the Illinois statute, which we have quoted, the remedy at law must appear to have been exhausted, by ob- taining a judgment, and, if the defendant was not insolvent, an execution returned nvlla Ixma. {d) But the law is other- wise, where a creditor by his bill merely seeks to remove a (a) See III. Stat. ; Underwood's Stat. 75. (&) Ishmael vs. Parker, 13 111. 324 ; Bay vs. Cook, 31 111. 336 ; Heacock vs. D'lrand, 42 111. 230; McCoanel vs. Dickson, 43 111. 99 ; Newman vs.Wil- letts, 52 111. 98; see Duherry vs. Clifton, Cooke, 328; Morgan vs. Crabb.Z Porter, 470 ; Wriglit vs. Petrie, 1 S. & M. Cb. 282 ; Scott vs. Wallace, 4 J. J. Marsh. 654 ; Banna vs. Banks, 6 Id. 219 ; Wooley vs. iStone, 7 Id. 302 ; Beck vs. Burdett, 1 Paige, Ch. 305 ; McElmiin vs. Willis, 9 Wend. 548 ; Screven vs. Bostick, 2 McCord, Ch. 410 : Clark vs. Banner, 1 Dev. & Bat. Ch. 608 ; McDermot vs. Blois, Charl. R. M. 281 ; Paiish vs. Lems, 1 Freem. Ch. 299 ; West vs. McCarty, 4 Blackf. 244 ; Kelso vs. Blackburn, 3 Leigh, 299 ; Rice vs. Barnard, 20 Vt. 479 ; North Am. Fire Ins. Co. vs. Graham, 5 Sandf. 197 ; Barrow vs. Bailey, 5 Florida, 9 ; U. S. vs. Stnrges, 1 Paine's R. 525 ; Wilkin- non vs. Tale, 6 McLean, 16 ; Lawson vs. Grubhs, 44 Geo. 466. (c) McDowell vs. Cochran, 11 111. 31 ; Armstrong vs. Cooper, 11 111. 560; Van Syckel vs. Richardson, 13 111. 174 ; Bay vs. Cook, 31 111. 337; Steere vs. Hoagland, 39 111. 264 ; see Ryan vs. Jones, 15 111. 1 ; Smith vs. Sheppard, 2 Hey. 163 ; Horner vs. Zimmerman, 45 111. 14 ; Mugge vs. Eioing, 54 111. 336 ; Hogan vs. Walker, 14 How. U. S. 29. {d) Miller vs. Davidson, 3 Gilm. 518 ; Newman vs. WiUettt, 52 111. 98. 398 CREDITOR'S BILL. When Proper — What may be Reached by. fraudulent conveyance out of the way of his execution. But in that case the bill must show that the judgment was an exist- ing lien on the property conveyed. If it appears that a year had elapsed after the rendition of the judgment with an execu- tion being issued thereon, the bill cannot be maintained. («?) Justice's judgment. — A judgment before a justice of the peace is a sufficient foundation for a creditor's bill, if the amount is large enough to confer jurisdiction on the court, {f) In United States court. — A creditor's bill may be filed in the circuit court of the United States, in the mode authorized by the local state law. {g) But a bill will not lie in a state court on a judgment obtained in the federal court. (A) SECTION II. WHAT MAY BE REACHED BY. Upon a creditor's bill every species of property belonging to the debtor may be reached and applied to the satisfaction of his debts ; and his debts, choses in action, and other equitable rights may be assigned or sold under the decree of the court for that purpose. (•sT) Upon a bill of this nature the complainant may reach the defendant's interest in the effects of a copartnership, after pay- (e) Newman vs.Willetts, 52 111. 98; Weightman vs. Hatch, 17 111. 381; see also Greenway vs. TJiomas, 14 111. 271 ; Turner vs. Adams, 46 Mo. 95 ; Webster vs. Folsom, 58 Maine, 230 ; Bailey vs. Burton, 8 Wend. 339. (/) Steere vs. Hoagland, 39 111. 264. (g) Suydam vs. Beals, 4 McLean, 12 : Lanmon vs. Clark, Id. 18 ; Wilkin- son vs. Tale, 6 McLean, 16; see Babcock vs.Willard, 4 West. Law Monthly, 314. (h) Steere vs. Hoagland, 39 111. 264. (i) Edmeston vs. Lyde, 1 Paige, Ch. 637 ; see Craig vs. Hone, 2 Bdw. Ch. 554 ; Weed vs. Pierce, 9 Cow. 722 ; Congden vs. Lee, 3 Edw. Ch. 304 ; TJiomp- son vs. Nixon, lb. 457 ; Brewster vs. Power, 10 Paige, Ch. R. 562 ; Benson vs. LeRoy, 4 Johns. Ch. R. 651 ; Cohen vs. Carroll, 5 S. & M. 545 ; Wagoner vs. Speck, 3 Ham. 294 ; Piatt vs. Judson, 3 Blackf. 235 ; Bemaree vs. Driskell, lb. 115. CREDITOR'S BILL. 399 What may be Reached by. ment of the partnership debts, and satisfying all prior equities in favor of his copartners, {j) So, where an express trust has been created to receive the interest or income of trust property, and to apply it to the use of a person from time to time, the surplus beyond what is necessary for his support and mainte- nance may be reached by a creditor's bill, after such interest or income has become due. (A-) On a creditor's bill, the court may so control the custody ot negotiable notes, and provide for demand and notice, as to pre- vent their being negotiated, and protect the rights of all parties thereto. {]) The complainant, by his bill, can only reach the property which belonged to the defendant at the time of the commence- ment of the suit, or the proceeds of the property and effects in which he then had an interest. If he wishes to reach after acquired property, he must tile a supplemental bill, {m) Upon this principle it has been held, that the complainant in a credi- tor's bill cannot reach the salary or compensation which is to become due to the defendant at a future time, for the performance of services which had not been completed at the time of filing the bill, in a case where the defendant would have no legal OP equitable right to demand payment for the services already performed, if he should thereafter neglect to complete the unperformed services, {n) Where work is performed by the piece or lot, the wages therefor may be reached by a creditor's bill, filed after the work has been performed, though before the customary day of payment, {o) The interest of a debtor, under a contract for the purchase of land, can be reached by a creditor's bill, {p) So, a note held by a defendant, secured by a deed of trust on land, may be {j) Eager vs. Price, 2 Paige, Ch. R. 834. (k) aute vs. Bool, 8 Paige, Ch. R. 83 ; see Craiff vs. Bone, 2 Edw. Ch. 554. (0 Buckcock vs. Millard, 4 West. Law Mo. 314. (to) Snmpson vs. Taylor, cited in 2 Barb. Ch. Pr. 153. (n) Browning vs. Bettis, 8 Paige, Ch. 569 ; McConn vs. DorsJieimer, 1 Clarke, 144. (o) T?iornpson vs. Nixon 3 Edw. Ch. 457. (p) Brewster vs. Power, 10 Paige, Ch. 562. 400 CKEDITOirS BILL. Parties to the Bill — Complainants. subject to a creditor's bill, and the land conveyed by the deed of trust be sold to pay it. {q) Where a debtor purchased land with his own money, and took the conveyance in the name of his infant son, for the pur- pose of securing the land against his debt, it was held, that the creditor, at the time of such conveyance, having obtained a judgment, might, by bill in equity, subject the land to his debt, {r) SECTION III. PARTIES TO THE BILL. Complainants. — A creditor may file his bill in his own name, for his own benefit, without joining other creditors ; (s) or he may file a bill in behalf of himself and all others, being judg- ment creditors, whose executions have been returned unsatis- fied, and who may choose to come in and contribute to the expense of the suit, {t) But a creditor cannot sue on behalf of himself and others who have no common interest with him. (w) Judgment creditors, who have exhausted their remedies at law, may unite in a bill to set aside a fraudulent assignment by their debtor, {v) So, if one creditor by judgment, and another by decree, have acquired liens upon the property of their debtor, they may join in filing such a bill, {w) But as to property, on which no creditor has obtained a lien by judgment and execu- tion, a creditor who has exhausted his legal remedy may file a (q) Colien vs. Carroll, 5 S. & M. 545. (r) Demaree vs. DriskeU, 3 Blackf. 115 ; SQ&Weightman, vs. Hatch, 17 111. 281 ; Moritz vs. Hoffman, 35 111. 553 ; Newman ys.WilMts, 52 111. Ii8 ; ^fvffr;^ vs. Bicing, 54 111. 236. (s) BaXentine vs. Beall, 3 Scam. 203. {t) Edmeston vs. Lyde, 1 Paige, Ch. 637 ; Wakenian vs. Orover, 4 F'aige, Ch. 23 ; Lentilhon vs. Moffat, 1 Edw. Ch. 451. («) Burney vs. Morgan, 1 Sim. & Stu. 358. (t)) Lentilhon vs. Moffat. 1 Edw. Ch. 451 ; Bailey vs. Burton, 8 Weud. 339 ; Dunyan vs. Vatli&r, 3 Blackf. 245. {w) Glarkson vs. DePeyster, 3 Paige, Ch. 320. CREDITOR'S BILL. 401 Parties to the Bill — Defendants. bill for his own benefit only, -svithout making other creditors, standing in the same sitnation, parties, {x) Other creditors may come in after the bill has been tiled ; (y) and the court shonld call in all the creditors of the estate to receive divi- dends, (z) Where the plaintiff in a judgment, after execution thereon returned unsatisfied, assigns the judgment, the assignee may file a bill of this nature in his own name, without taking out a new execution after tlje assignment, {a i Vefendantfi. — It is a general rule that all the parties against whom the judgment was recovered, should be made parties defendants to a bill of this nature. (^) But if one of them is insolvent and wholly destitute of property, or out of the juris- diction of the court, or a mere surety for the other defendants, it is not necessary to make hira a party. These facts must, liowever, be distinctly averred in the bill, or the defendants may demur for want of parties, {c) Even where one joint debtor has not been served with process at law, it is proper to make him a party tc» the bill ; for although his separate property cannot be reached directly, yet his co-defendants, if compelled to pa}' the debt, may claim contribution. {(1 ) If the property of the judgment debtor, against whom an execution has been returned unsatisfied, is in the actual pos- (a;) Wakeman vs. Grover, i Paige, Cli. '2;-{ : MfCnlmimt vs. Lnirrence, 1 Blatchf. C. C. R. 232. (y) The Bank etc. vs. lJ>Ji,yai>, 2 Bland, 2.i4 : see Story's Eq. PI. ij 99-102 : Myers vs. Fenn, .5 Wallace, 20.5. (z) Kinney vs. Harcey, 2 Leigh, 70; Willmmson\'S:WilsoH, 1 Bland, 418 see Brooks vs. Gibbons, 4 Paige, Ch. 374 : Parmlee vs. Ef/an. 7 Paige, Ch. 610 Birley vs. StaJey, 5 Gill & J. 432 : Shnhrirk vs. Shuhrirk, 1 McCord. Ch. 406 Wnbfish & Erie Canal (Jo. vs. Bters. 2 Black, U. S. R. 448. (a) Gleason vs. Garje, 7 Paige, Ch. 121 ; Strange vs. Lon the said C. D., L. M., N. O., P. Q. and R. S., who are made parties defendant to this bill, may be required upon their several and respective corporal oaths, and according to the best and utmost of their several and respective knowledge, remem- brance, information and belief, full, true, direct and perfect answer make, to all and singular the matters and things herein- betbre stated and charged, as fully and particularly as if the same were here again repeated and they severally thereto dis- tincth" interrogated paragraph by paragraph, and especially that they may each set forth and discover the nature and situation, amount and value of all the property, interests and effects of the defendant C. D., including all things in action, of whatever nature or kind, with all the particulars relating thereto, and that they may severally and respectively answer and state whether at the time of filing tliis your orators' bill of complaint the defendant C. D. has not debts due to him to a considerable amount ; and if so, that they state particularh^ the amount of such debts respectively, and from whom the same are due, and what securities are held therefor, and also which and what amount of said debts are good and 2ollectable, and which and what amount bad and doubtful ; and whether at the time of filing this your orators' bill of complaint, the defendant C. D. had not or has not now some property, real or personal, in law or equity, belonging to him, or held in trust for him, or in which he has some beneficial interest of some kind or description, and if so, that they may severally state and set forth a full, true and particular account thereof, and the nature and value of his interest therein ; and that they may also severally state whether the defendant C. D. lias not money of some kind in his possession, or under his control, or deposited to his credit, or for his use, or in some way or manner held for his benefit, and if so, that the defendants may respectively state and set forth particularly the amount thereof, and how and by whom the same is held ; and that the defendants may severally state whether the defendant C. D. has any other equitable interests or things in action, or other means belonging to him, or in which he is in any way interested, whereby he could pay any CREDITOR'S BILL. 411 Form of Bill. part of the amount so, as aforesaid, due to. your orators upon their said juderment against the defendant C. D. And if the defendant C. D. has made any sale, assignment or transfer of his property and eiFects, or any part thereof, that then the defendants may severally and respectively state and set forth generally, but not in items, what property or effects have been so sold, assigned or transferred, and the value there- of, and particularly when, and to whom, and for what purpose, and upon what terms and conditions, such sale, assignment and transfer was made, and what has been done under such sale, assignment or transfer, and what has been done with the prop- erty or effects so sold, assigned or transferred, and the avails thereof. And that the defendants may also severally answer make to such of the several interrogatories hereinafter numbered and set forth, as by the note hereunder written, they are respectfully required to answer ; that is to say : 1. "Whether, etc., etc. 2. Whether, etc. 3. Whether at the time of the filing of this bill of com- plaint you had, or have now, in yonr possession, custody or charge, any lands, tenements, goods, chattels, moneys, bonds, promissory notes, bills of exchange, judgments, mortgages, deeds of trust, stocks, choses in action, credits or effects of any kind or nature belonging to the defendant C. D., or in which he is in any manner directly or indirectly beneficially or other- wise interested ? If yea, set forth fully and particularly the kind, number, quantity and value thereof respectively ; and state fullv the terms and conditions upon which the same are so held. 4. Were you at or after the time of the filing of this bill of complaint, or are you now, in any manner indebted to the said C. D. ? If yea, set forth fully and particularly for what, how, and to what amount you were or are so indebted to him. 5. Whether, etc. And that the defendant C. D. may be decreed to pay your orators the amount so as aforesaid due to them for principal and interest on their said judgment, together with your orators' costs and charges in this behalf sustained ; and may be decreed to apply for that purpose any money or property real or per- sonal, in law or equity, debts, choses in action or equitable interests belonging to him, or held in trust for him, or in wliich he is in any way or manner beneficially interested : and that the defendant C. D. may be enjoined and restrained from sell- ing, assigning, transferring, delivering, negotiating, discharging, 412 CREDITOR'S BILL Form of Bill. receiving, collecting, encnnibering, or in any way or manner disposing of, or intermeddling with, any debts or demands due to him, or any bills, bonds, notes, drafts, checks, book accounts, mortgages, judgments, or other debts due to him, whether in his possession or held by some other person in trust for him, or to his use and benefit ; and also from assigning, transferring, or in any manner incumbering or disposing ot^ or intermeddling with, any money in coin, bank bills, drafts or checks belonging to him, whether in his possession, or held by any other person in trust for his use or benefit ; or any stock, or interest in any private or incorporated company, or any property, real or per- sonal, things in action or chattels real, held by him, or by any other person for him, or in which he has any interest whatever, except Avhere such trust has been created by, or the fund so held in trust has proceeded from some person other than the defendant C. D. And that the defendant C. D. may also be in like manner prohibited from making any assignment of his property, and trom confessing any judgment for the purpose of giving preference to any other creditor over your orators, and from doing any other act to enable other creditors to obtain his property. And that a receiver may be appointed, according to the course of practice of this court, and wath the usual powers of receivers in like cases, of all the property, equitable inter- ests, things in action, and efiects of the defendant C. D. And that your orators may have such other and further relief in the premises as equity may require and to your honor shall seem meet. May it please your honor to grant the writ of summons in chancery, directed to the sherifi'of the said county of . com- manding him that he summon the defendants C. D., L. M., IST. O., P. Q. and R. S., to appear before the said court, on the first day of the next term thereof, to be held at the court house in , in the county of aforesaid, then and there to answer this bill, etc. And may it please your honor to grant unto your orators the people's writ of injunction, to be directed to the defendant C. D., restraining him, his agents and attorneys from, etc., {accord- ing to the prayer of the hill.) until the further order of said court. , Sol. for Cmnjylainayiis. State or ) County of \ ' ' A. B., on Ocith states, that he is one of the complainants in the foregoing bill named, and has heard the same read, and CREDITOR'S BILL. 413 Form of Bill in Aid of Execution, etc. knows the contents thereof. That the matters and things in the said bill contained is trne of his own knowledge, except as to those matters which are therein stated to be on his informa- tion and belief, and as to those matters he believes it to be true. Subscribed and sworn to, etc. A. B. Note. — The defendants are each required to answer the inter- rogatories in the foregoing bill of complaint, numbered respec- tively 1, 2, 3, 4, 5, etc. The defendant C. D. is required to answer all of said interrogatories except the 3d and 4tli. , Sol. for ComplaAnants. No. HO. Bill in aid of an execution to remove afraxidvlent conveyance. To the Honoral)le , Judge of the Court of the County of , in the State of , In Chancery sitting: Your orator, A. B., of, etc., respectfully represents unto your honor, that on, etc., your orator recovered a judgment in the court, of the county of . in this state, against one C. D., one of the defendants hereinafter named, for the sum of dollars, damages, and the costs of that suit, whereof the said C. D. stands convicted, as by the record of the said judgment, in the office of the clerk of the said court, reference thereto being had, will more fully appear. Your orator further represents that, previous to the time of the rendition of the said judgment, the defendant C. D. was the owner in fee simple of the following described real estate, to M-it : {Here insert description.) Your orator further represents, that on, etc.. the said judg- ment remaining in full force and eflect, and the damages and costs aforesaid unsatisfied, your orator, for the purpose of obtaining satisfaction of the same, caused a writ oi Jierl facias to be issued and delivered to the sheriff of the said county of -, where the defendant C. D. then resided, and still resides, and the said real estate is situated, in the usual form, command- ing the said sheriff that of the goods, chattels, lands and tenements of the defendant C. D., in his county, he should cause to be made the said sum of dollars, which your orator in the said court recovered against the said C. D., and he should have the money at the clerk's office of said court, at , in said county, in , ninety days from the date thereof, to satisfy the judgment so recovered by your orator as aforesaid, and that" he should have then and there 414 CREDITOR'S BILL. Form of Bill in Aid of Execution, etc. that writ; which said writ oi fieri facias was duly indorsed and, on the same day, delivered to the said sheriff, to be by him executed in due form of law. And your orator further represents, that the said execution is still in the hands of the said sheriff, not returned, and is un- satished in whole or in part. Your orator further represents, that prior to the rendition of the said judgment, but after the indebtedness upon which the same was rendered had accrued, to wit, on, etc., tne defend- ant C, D. made a pretended conveyance in fee of the said described real estate to one G. H., another defendant herein- after named, for a pretended consideration of dollars. And your orator further represents, that the said conveyance was not real, Init was a mere sham, and made with the inten- tion of defrauding your oratoi-, and the other creditors of the said C. D., out of their just demands; that no consideration was paid by the said G. H. to the said C. D. for the said con- veyance ; and that the said premises are now held by the said G. H. in trust for the said C. D., and for his use and benefit, and for the pui-pose of preventing a levy and sale of the same under and by virtue of said execution. Your orator further represents, that the said G. H. is a man of no pecuniary responsibility, and is possessed of little or no property other than that so fraudulently conveyed to him as aforesaid, and is in embarrassed circumstances, and involved and largely in debt. Your orator further represents, that the said C. D. has no personal or real estate liable to levy and sale, except the premises aforesaid, on which the said sheriff" could make a levy and realize the amount of the said judgment and costs ; and that, although the said sheriff has frequently demanded of the said C. D. to pay the amount due upon the said judgment or that he turn out property upon which he could make a levy, the said C. D. has refused to pay the same, or turn out property, and fraudulently insists that he has neither money nor property to satisfy the same. Your orator further represents, that the said judgment still remains in full force and effect, not reversed, satisfied or other- wise vacated ; that there is now actually and equitably due your orator upon the same the sum of dollars, together with interest thereon from the date of the entry of the said judgment, over and above all claims of the said C. D. by way of set-off or otherwise. Forasmuch, therefore, as your orator is without remedy in the premises, except in a court of equity ; and to the end that CREDITOR'S BILL. 415 Form of Bill in Aid of Execution, etc. the said C. I), and G. H., who are made parties defendant to this bill, may be required upon their several and respective corporal oaths, and according to the best and utmost of their several and respective knowledge, remembrance, information and belief, full, true, direct and perfect answer make, to all and singular the matters and things hereinbefore stated and charged, as fully and particularly as if the same were here again repeat- ed and they severally thereto interrogated,, and especially thai they may each set forth and state the facts and circumstances attending the said conveyance, the amount of money actually paid thereon by the said G. H. to the said C. D., and how and in what manner the payments were, or were to be made, from whence the said G. H. derived tlie funds with which to make said purchase, and the purpose of said conveyance ; and that the defendants may also severally answer make to such of the several interrogatories hereinafter numbered, as by the note hereunder written, they are respectively required to answer, that is to say : 1. Whether, etc. {Here inseH as many interrogatories as may he deemed necessary .^ And that upon the hearing thereof, the said conveyance^ including the deed thereof, as to the complainant, be set aside, vacated and declared null and void ; that an injunction be allowed, restraining the said defendants, or either of them, from disposing of, transferring, incumbering, or in any manner interfering with the said propei'ty, or any part thereof; that a receiver be appointed, with the usual powers and duties of a receiver ; and that the complainant may be authorized to pro- ceed upon his said writ of jieri facias issued as aforesaid, or issue another writ thereon, as it may be deemed necessary ; and that the sheriff of said county thereupon be directed to proceed to levy upon, advertise and sell said premises for the payment and satisfaction of your orator's said judgment, inter- est and costs ; and that your orator may have such other and further relief in the premises as equity may require, and to your honor shall seem meet. May it please your honor, etc. {Pray jjrocess, and far an. injunction, and add affid.avit and note, as in the last form —No. 11^8.) 416 CREDITOR'8 BILL. Form of Bill against Executrix, etc. No. 150. Bill hi/ creditor against executi^ix of a deceased debtor. To the Honorable , Judge of the Court, of the County of , in the State of , In Chancery sitting : Your orator, A. B., of, etc., for and on behalf of himself and all other creditors of C. D., late of, etc., deceased, who shall come in and contribute to the expense of this suit, respectfully represents unto your honor, that the said C. D., deceased, was in his lifetime, and at the time of his decease, indebted to your orator in the sum of dollars, for and on account of, etc., \Hi:i'e state the nature of the indehtedness^) which said sum of dollars still remains due and owing to your orator. And your orator further represents, that the said C. D. was also at the time of his decease, as it is alleged, indebted to cer- tain other persons by specialty, simple contract or otherwise. And that the said C. D. being so indebted, and being possessed of, or well entitled to, considerable real and personal estate, departed this life on or about the day , 18 — , having first duly made and published his last will and testament in writing, bearing date, etc., and thereby gave and bequeathed all his estate and effects in the words and manner following, that is to say : " I give and bequeath unto my dear wife E. D., all my estate, real and personal, and effects whatsoever, and wheresoever absolutely. And I appoint my said wife executrix of this my last will and testament, and I revoke all other wills by me heretofore made. It is my will that letters testamentary issue to my said wife without it being required of her to enter into bond with security as such executrix." And your orator further represents, that the said testator departed this life with- out having revoked or altered. his said will, ami that immedi- ately after his decease the said E. D. possessed herself of a con- siderable part of his personal estate and effects, and converted the same to her own use, and entered into possession of his real estate and receipt of the rents and profits thereof. And that afterwards, on, etc., tlie said E. D. duly proved the said last will and testament in the court of the county of aforesaid, and letters testamentary were granted to her by said court, without requiring her to enter into bond with a good and suiScient security condition according to law, and she took upon herself the burden of the execution thereof. And your orator further represents, that afterwards, on, etc., your orator presented his said claim before the said court, CREDITOR'S BILL. 417 Form of Bill against Executrix, etc. Hiid the sjiino was then and there duly probated and allowed to the .said amount of — — dollars, hy that court, as a claim against the estate of the said C. D.. deceased, as a debt of the class. Your oratoi- further re]>resents, tliat the said K. ]).. immedi- ately after the proving of the said will, and the issuing of the letters testamentary as aforesaid, possessed herself of the resi- due of the estate and effects of the said testator, to a very considerable amount and value, and, together with the eflects of the said testator so possessed and converted to her use before that time, as aforesaid, much more than sufficient to discharge and satisfy all his just debts, funeral and testamentary ex- penses, hut that the said E. D. has not yet paid or satisfied the debt due to your oi'ator, oi* any part thereof, and the same, together witli some other of the debts f>wing by the said (J. D. at the time of his decease, still remain unsatisfied. And the ■^aid E. D.. having as aforesaid possessed assets of the said C". D., much moi'e than sufficient to satisfy all his debts, your orator has applied to and requested the said E. D. to satisfy the same accordingly. And your orator well hoped that the said E. D. would have complied with s\ich request, as in justice and equity slie ought to have done. But now so it is. may it please your honor, that the said E. 1>. combining and confed- erating with divers other persons at present unknown to your i>rator, etc.. refuses to pay the debt of your orator, and alleges that the personal estate and effects of which the said 0. D., deceased, M'as possessed of. or entitled to. at the time of his decease, and which have come to hei' hands, or to the hands of any person or persons by her order, or for her use. was small and inconsiderable, and has already l>een exhausted in the payment ot' his funeral expenses, and debts of a class superior and prior to that of your orator, and other creditors having claims of a similar class ; and that nothing now remains in her hands of the assets of the said C. D.. deceased. Avith which to pay such unsatisfied debts; and she wholly refuses to sell the said real estate or any part thereof^ for the purpose of paying the said debts from the proceeds thereof: and refuses to apply the rents and profits of the said real estate, to the ])ayment of said demands, but applies and converts the same to her own use, and refuses in any man- ner to account for the same, and insists that she is now the absolute owner of all such real estate, and the pei-sonal prop- erty now in her hands; whereas your orator charges that the contrary of such pretenses is true, and that upon a fair account- ing with respect to said estate, a sufficient sum would appear to be in the hands of the said E. D.. to satisfy all said debts, 27 418 CREDITOR'S BILL. Fonn of Bill against Executrix, etc. Forasmuch, therefore, as 3'onr orator is without remedy in the premises, except in a court of equity, and to the end that the said E. D., who is made a party defendant to this bill, may be required to make full and direct answer to the same; and especially that she may set forth and discover the nature, amount and value of all the property, real and personal, inter- ests and effects of the said C. D., deceased, of whatever nature and kind, with all the particulars relatint^ thereto, owned by the said C. D. at the time of his death, and which cjime into the possession or control of the defendant, or into the possession of any other person or persons for her use, and what has l)cen done with the same or the avails thereof; and that the defend- ant may answer make to the several interrogatories hereinafter numbered and set forth, that is to say : 1. Whether you, the said E. D., did not, soon after the death of the said C. D., take possession of a considerable j)or- tion of the personal property and effects of the said C. D., and convert the same to your own use? If yea, give the nature, amount and value of the same, and state what has been done with the proceeds or avails thereof. 2. Whether, etc. (and so on, inserting such intei^ogatories (IS may he deemed necessary.) And that an account may be taken by and under tlie direc- tion of this honorable court of the real and personal estate of the said C. D., deceased, and of the debt due your orator, and of the debts due to the other creditors of the said C. D. remaining unsatisfied at the time of his decease, and of the rents and profits of his real estate, which have been possessed by, or come to the hands of, the defendant, or of any person or persons by her order or for her use ; and that the real and personal estate of the said C. D., or so much thereof as remains unapplied and undisposed of may be applied, in the first place, in or towai'ds the satisfaction of his funeral expenses, in case the same have not been satisfied, and then, etc. {as reqxdred hy law in reference to preference /) then in satisfaction of the debt due to your orator, and the other creditors of the same class, who shall come in in like manner and contribute to tlie expense of tliis suit, equally and share alike in due course of administration ; and tliat a receiver may be appointed by this honorable court to collect in and receive tlie outstanding per- sonal estate and effects belonging to the said C. D., and the rents and profits of his real estate ; and that the defendant may be restrained, by the injunction of this honorable court, from receiving the rents and profits of his real estate, and from collecting in and receiving any such outstanding personal CREDITOR'S BILL. 419 Form of Order appointing Receiver, etc. estate, and from assigning;, selling, or parting with any part of the personal estate and etfects of or belonging to the said C. I)., now in the custody or power of the said defendant, or in the custody, possession or power of any persons or persons in trust for her ; and that your orator may have such other and further relief in the pi'emises as equity may require and to your honor shall seem meet. May it please your honor, etc. {Pray jprocess and for itijxmc- tii>n as in JVo. IJfS^ ante, page JfOG.) No. 161. Order appointing a receiver in a creditor's suit. {Proceed as iti No. 81, ante, page W2, to the asterisk*, and continue :) It is ordered that E. F., of, etc., be and lie is hereby appointed receiver of the estate and property, real and personal, things in action, debts, equitable interests, and other effects of the de- fendant C. D., and which belonged to, or were held in trust for him, at the time of the commencement of this suit, or in which he had any beneticial interest, except such property as is by law exempt from execution ; and, also, except where such trust property has, in good taith, been created by, or the fund so held in trust has proceeded from some person other than the defend- ant C. D. himself, and of the real estate mentioned and de- scribed in the complainant's bill, to wit : {He^e describe it,) and the rents, issues, incomes and profits thereof, with the usual powers and duties of receiver, upon the said receiver executing and tiling with the clerk of this court a bond in the usual form, to the people of this state, in the penal sum of dollars, with sureties to be approved by this court. And it is further ordered that the defendant C. J), do assign, transfer and deli- ver to said receiver, on oath, under the direction of the master in chancery, all such property, real and personal, things in action, equitable interests, and other effects, except as aforesaid, property exempt by law from execution, and trust property, where the trust has been created by, or trust fund proceeded from, some person, in good faith, other than the defendant himself And that he deliver to said receiver, in like manner, all bills, notes, contracts, books of account, etc., and other evidences relating thereto. And that the defendant C. D. execute and deliver to said receiver, under the direction of the said master, a general assignment of sucli property and effects ; and also execute, acknowledge and deliver to said receiver, un- der the direction of the said master, a conveyance and assign- ment of the real estate mentioned in said bill, and hereinbefore 430 t'KKDrJ'OK'S HILL. Order of Reference — Decree, etc. described, and of the rents, issuer^ and profits thereof. And that the defendant C. D., and his tenants, etc., attorn to tlie said receiver, and pay to liim the rents and profits, and that the said I'eceiver have power to make leases of sncli real estate, from time to time, not exceeding- one year, as he may deem advisable. And that the defendant appear before the said master in chan- ery, as he shall be summoned or i-equired to do. from time to time, and produce such books, papers and accounts, and submit to such examination, as said master shall direct in relation to any matter which he may be lawfully required to disclose. The above order to be vaiied to conform to the circumstances of each particular case. If any further special direction or provision is desired, insert it at the end of the form. ]Vo. 15%. Order referring creditor .^ hill to m aster . to e^mnine defendant and witnesses. {Proceed as in No. 81. Hwiv^jM/gc Wl^, to the asterisl-*, and proceed :) It is ordered that this cause be referred to the master in chancery of this court, to examine the defendant C. D., and such M'itnesses as shall be produced before him under oath, and upon interrogatories, concerniuir the property, chattels, things in action, equitable interests, and efl'ects of the defendant, C. D., and to report the same to this couit with all convenient speed ; and that the defendant C. D. do appear and attend from time to time, and when summoned or required so to do. before said master, and produce such books, accounts and papers, and submit to such examination as the said master shall direct, in relation to any matter whicli he may lawfully be required to disclose; and that the said master, or either party, be at liberty to apply to the court at any tinu^ for further directions. No. 153. iJecref that cohijihihuiiit's dfht he paid out offimds in the Juiiidi< of the receiver. {Caption, and title of cause as in No. 79, ante, j>a(/e 198.) This cause having come on to be heard u])on the bill of com- plaint herein, the answers of the defendants thereto, the replication of the complainant to such answers, and the report of the receiver heretofore appointed in this cause, and the report of the master in chancery, to whom the same was referred to examine the defendant and other witnesses in the CRKDlTOliS BILL. 421 Form of Decree. cause, which said reports are each hereby approved and con- firmed ; and this cause having; been ai-iiued l)y the counsel for the respective parties; and tlie court beiuii' fully advised in tiie premises, doth ovdei\ adjxdye and deeree, tliat out of the moneys in the hands of the said receiver, collected and held by him, as shown by his said report, the said receiver, after deduct- ing his charges for disbur.sements and connnissions, do pay the costs of this suit, to be taxed by the clerk of this court, and out of the residue of said moneys, he pay the complainant the amount of the said judgment, to wit, the sum of dollars, with interest thereon from the time the said judgment was entered, to wit, the day of, etc., and that he take from the complainant an acknowledgment of satisfaction of said judg- ment, and deliver the same to the defendant C 1)., to the end that said judgment may be canceled and discharged of record. {Jf there is no other daimant upon the fund in the hands of the receiver^ add:) And it is further ordereci, adjudged and decreed, that the said receiver do pay over to the defendant 0. D. the residue of the moneys so remaining in his hands, or account with him foi- the same, and deliver to him all and singular the pro[ierty and effects, books of account, evideiu-es of del)t, or other papers or documents relating to said trust estate, on denuind of the defendant C. D. ; and also, if the defendant C. D. shall so retjuire, that the said receiver execute back to him a general release and assignment of all and singular the pro|>erty, equit- nble interests and effects, of said trust estate, renuuning in his liands undisposed of. On which assignment and delivery l»eing made, it is adjudged that the said receiver be disclmrged fii.m his said trust. If the amount in the receiver's hands is not sutticient to jiay the debt and costs, the decree must of course be varied to meet the tacts, and will merely direct the receiver to pay tiie amount so collected upon the judgmen-t, and take the complainant's receipt therefor. If assets, etc., remain uiulisposed of, the court ma}^ direct their sale and application. If there are other clainuints upon the fund, or the receiver- ship has been extended over the property in a subsequent suit, the court, instead of ordering the surplus to be paid over to tiie defendant, will direct it to be brought into court, to abide its furtlier ordei-. 422 CREDITORS BILL. Form of Decree in Aid of Execution. No. 15 J^. Deoi^ee setting aaide afrauduUnt conveyam^e in a/Id of an execution. {Caption, and title of cause as in No. 79, ante, ^>a^«? 198) This cause coining on to be heard upon the bill of complaint herein, the answers of the defendants thereto, the replication of the complainant to such answers, and the report of the mas- ter in chancery to whom the same was referred to take proofs of the matters alleg-ed in the bill, which said report is hereby approved and confirmed; and the court having heard the arguments of the counsel of the respective parties, and being fully advised in the premises, doth order adjudge., and decree that the deed of conveyance, bearing date on, etc., made and executed by the defendant C D. to Gr. H., for the premises described therein, and in the complainant's bill, to wit : [Here deserihe the jyremises) be and the same is hereby set aside and vacated and declared null and void, and of no effect whatever, as against the complainant. And it is further ordered, adjudged and decreed that the complainant be authorized to proceed upon his writ oi fieri facias, issued upon the judgment rendered in the court of the county of aforesaid, described in the said bill of com- plaint, wherein he is plaintiff, and the defendant C. D. defend- ant, for dollars and costs; or issue another writ oi fieri facias thereon, if it be necessary, aiid that the sheritf of said county thereupon proceed to levy upon, advertise and sell said real estate for the payment and satisfaction of the said judgment interest and costs. And it is further ordered, adjudged and decreed that the defendant 0. T>. pay the costs of this proceeding to be taxed by the clerk of this court ; and if the proceeds of the sale of the said premises be not sufficient to pay said judgment, inter- est and costs, and the costs of this suit, that the complainant have further execution for the same acrainst the defendant 0. D. CHAPTER XXX. PARTITION SUn'8. Section 1. Nature of, and how Institdted. 2. Parti K8 to. 'ii. liiM. OR Petition. 4. Process of Appearax< k in. 5. Interpleader. 6. Decree for Partition. 7. Proceedings by Commissioners. 8. ExcEPiTONS to Report of ('ommissiokkrb. 9. Decree of Sale. 10. Exceptions to Report of Saijs. 11. CONFIKMATION OF SaI.B. SECTION I. NATIKK OK. ANI* HOW IN8Tn"UTED. Partition is the severance of common or undivided interefits. It is particularly applied to interests in realty. At cominou law lands held by two or more persons were held bv them either in joint tenancy, in common, or in coparcenary. The tirst two of these estates were created by tlie act of the parties. The last was created by operation of the law, when in ca.sting a descent it devolved a single estate upon two or more heirs; as, for example, when an estate in fee of one who left no male succession, passed to his daughters or. other female relatives. These persons were called coparceners. Theirs was the only joint estate of wliich the common law would compel a dissolu- Utm at the request of a single party. Joint tenants and tenants in common became so by their own mutual agreement and act, and the tenancy could be jnstly severed only by their mutual consent. But coparceners are rendered so by operation of law, and lest any one of them be prejudiced by the perversenesa of his fellows, the law will lend its aid, if he ask it, and help him by partition, to the enjoyment of his separate interest. 4Ji4 PAKT1T10J\' 8U1T!S. Nature of, and how Instituted. In the reign of Henry VIII, (,1527,) and of William lY, (1833,) special statutes were passed extending this common law benefit, which hitherto coparceners alone had enjoyed, to joint tenants and tenants in common, so that j>artition then became incident to all estates held in ci>uinion. In the United States the technical joint tenancy is quite obsolete; joint ownership being, if not under express statute, yet in etiect, only tenancies in common. So, also the technical distinctions l)etween estates in common and in coparcmary liave lost nearly all their force. Much, therefore, of '' the cunning learning of partition,'' as it exists in the English law, is inapplicable here. Yet, as among us, real property generally passes, on the death of an ancestor, to more persons than one, partition still retains an importance in respect to the tenancies in common of heirs and devisees. In some of the states the operation of this remedy is extended by statutes beyond the limits fixed for it by the connnon law, or the statute of Henry YIIT. Partition in England was made eitlier by mutual consent or upon compulsion. In the latter case the relief was sought either by a writ of partition, sued out by one party, at common law, or by his petition to the court of chancery. If the courts of law ever had exclusive jurisdiction of par- tition, as it is sometimes asserted, it must have been at a very remote period. For as early as the reign of Elizabeth, (1571,) it is certain that chancery took cognizance of the matter, and in modern times has exercised an almost exclusive jurisdiction. There is good reason, in most of the states, for the preference c»f chancery courts over courts at law, in matters of partition ; the proceeding at law being regarded as far less effectual than that in equity. The courts of law are generally limited to a mere allotment according to the proportional shares of the parties in interest ; and this often causes a purely mechanical, and some- time a prejudicial, division of an estate. But chancery is not restricted to the exact balancing of equivalent shares, but is capable of all equitable adjustments of the matter, and may distribute among the proprietors the separate, though unequal, parcels of the estate, assigning to the several parties the por- PARTITION SUITS. 426 Nature of — Statute of Illinois. tions which will best suit their respective condition, equalizing such a partitioTi by decreeing pecuniary compensation to be made, or in otiier cases ordering e(juitable payments by some for im- provements made in the conunuii property of others. This jurisdiction is exercised with peculiar fitness in all casc;^ where purely equitable rights, convicting claims of parties, or modes of enjoyment are to be adjusted, (a) This distinctive feature, favoral)le to equitable procedure in partition cases, is measurably avoided in Illinois, by the act of 1874, which provides, that " in all suits for the partition of real estate, whether l)y bill in chancery or by petition under this act, the court may investigate and determine all questions of conflicting or controverted titles, and remove clouds upon the titles to any of the premises sought to be partitioned ; invest titles by their decrees, in the parties to whom the prem- ises are allotted, without the forms of conveyances by infants or unknown heirs, or other parties to the suit ; assign dower, and order a sale of the premises, for the purpose of dividing the premises in proper cases, and by its decree invest the pur- chaser with title, and a])})ortion incumbrances among the parties to whom the incuml^ered premises are allotted." {b) This is a substantial revision of the acts of February 12, 1861, and February 28, 1867. (e) In most, if not all, the states the jurisdiction of the courts in relation to partition suits is regulated by very minute stat- utory provisions, and to these reference must be made for the particular methods of procedure, and the powers of court. In Illinois, the first section of the act of 1874, to revise the law in relation to the partition of real estate, provides : " that when lands, tenements or hereditaments are held in joint tenancy, tenancy in common or coparcenary, whether such right or title is derived by purchase, devise or descent, or whether any or all of the claimants are minors or of full age, (a) Gregory vs. Gooer, 19 111. 608; Walker ve. Laflin, 26 111. 472 ; Tha/yer vs. Lane, Barring. Ch. 247. (6) See 111. Stat, of 1874. (e) Laws of 111 1861, p. 177 : l^we of 1867. 426 PARTITION SUITS. Parties to — Complainant or Petitioner. any one or more of the persons interested therein may compel - a partition thereof by bill in chancery, as heretofore, or by petition in the circuit court of the proper county, or if the pro- ceeding is in the county of Cook, in the circuit or superior court of said county." Section 25 provides, that : " If a person to whom any share has been allotted is evicted by a person who, at the time of the partition, had a title older and better than the titles of those who were parties to the suit, the person so evicted may have a new partition of the residue, as if no partition had been made, if such new partition can be justly made, or he may have contribution from the others, so as to make his share just and equal with the others, according to his rights in the premises." SECTION 11. PARTIES TO. Complainmit or petitioner. — A party seeking u partition of land must have some interest in it. A person who is a mere guardian of an infant owner, cannot maintain the suit. In such case the proceeding must be brought in the name of the ward, by the guardian, {d) The statute provides, that " infants may petition by guardian, or next friend, and other persons under guardianship, by their conservators." {i) As a general rule, courts will refuse to make partition of^ land between parties claiming to be tenants in common, unless it clearly appears that the several persons claiming tt> be owners hold title to the premises. (/') So, where the party shows merely & prima facie title, arising under color of title, possession and payment of taxes for seven years, he cannot obtain a partition. But he might no doubt file a bill in {d) Bowles vs. McAllen, 16 111. 30. (e) See Statute of 111. revision of 1874. (/) Ro88 vs. Cobh. 48 111. Ill ; Schnddfir vs. Seibert, -W 111. 284 ; WiZHama ys.Wiggand, Ti^ 111.233. PARTITION SUITS. 427 Parties to — Complainants, etc. — Defendants. chancery against those claiming adversely, making them and the other tenants in common parties, and have such adverse claim removed, as a cloud upon his title, and then obtain a partition, {g) A remainder man, or reversioner in fee, of an undivided interest in lands may maintain a suit for partition against the owner of the remaining undivided interest in remainder, the whole premises being subject to a life estate in another, and unexpired, {h) But a suit cannot be maintained by a person who has merely a future contingent interest in an undivided share of the property, {i) A partition of lands among several joint owners will not be made, unless those by whom the partition is sought have a legal title to the portions claimed by them. A party who has a mere equitable right to a conveyance of an undivided inter- est is not in a position to ask a partition, {j) JJefendants. — The statute of Illinois requires that "Every person having any interest, whether in possession or otherwise, and who is not a petitioner, shall be made a defendant to such petition." Previous to the revised statute, it has been held that neither a mortgage nor a judgment creditor was a proper party to a partition suit, and that their rights could not be affected by a sale of the lands ; {k) but inasmuch as the statutes have author- ized the court to decree a sale, which will give a purchaser a perfect title, or to apportion encumbrances among the parties to whom the encumbered portion is allotted, it is necessary that all encumbrancers should be made parties. (/) All persons having an interest in the subject matter of the (g) Ross vs. Cobb, 48 111. 111. (A) Scovillf vs. IliUiard, 48 111. 453 ; Hilliard vs. fkoviUe, 52 111. 443. (i) Striker vs. Mott, 2 Paige, Cli. 387. ij) Williams \s. Wiggand,^^ 111.233; see lA^'ertov ^s.Waters.'; OMw. Tenn. 20 ; Ooxirlcy vs. Woodbury, 43 Vt. 89. (k) Wfilto» vs. Copeland, 7 Johns. Ch. 140; Scbiing vs. Mersereav. Hopk. Ch. 501 ; Harwood vs. Kirhy. 1 Paige. Ch. 469. {I) LoomiK vs. Riley, 24 111. 307 ; se<» KHgo'n- vs. Crawford, 51 111. 2-19. 428 PAKTITION SU1T8. Parties to, etc. — Bill or Petition, etc. ^ proceedings must be made parties, or they will not be bound bv the judgment, except as a color of title under the statute of limitations, {m) Llnhnoivn deftndants. — The statute of Illinois provides that " When there are any persons interested in the premises whose names are unknown, or the share or quantity of interest of any of the parties is unknown to the petitioner, or where such share or interest shall be uncertain or contingent, or the ownerehip of the inheritance shall depend upon an executory devise, or the remainder shall be contingent, so that sudi parties cannot be named, the same shall be so stated in the petition. " All persons interested in the premises in which partition is sought to be made according to the provisions of this chap- ter, whose names are unknown, may be made parties to such petition by the name and description of unknown owners of the premises, or as the unknown heirs of any person who may have been interested in the same." I*urchaser pedente lhe. — A purchaser from one of the parties to a pending suit tor partition acquires his interest in the property, subject to such decree as may be rendered on the hearing. Thus a mojtgagee is limited to that portion allotted to his moitgagor. (//) SECTION III. BILL OK jpK'rrriox. Form of petition. — The 5th section of the statute of Illinois provides that, " the petitioner shall particularly describe the premises sought to be divided, and shall set forth the interests of all parties interested therein, so far as the same are known (to) Hasaett vs. Ridgely, 49 111. 197 ; see Kester vs. Stark, 19 111. 328 ; Hickenbotham vs. Blackledge, 54 111. 316. (71) Loo'triis vs. Riley, 24 111. 307; see Jackfton vs. Wmrtn, 32 111. 331; Dkkaun ve. Todd, 43 111. 504 ; Hoberh vs. Fleming, 53 111. 196. PARTITION SUITS. 429 Bill or Petition — Form of Bill. to the petitioner.^, including tenants for years, for life, by the courtesy or in dower, and of all persons entitled to the rever- , sion, remainder or inheritance, and of every person who, upon any contingency, may be or become entitled to any beneficiary interest in the premises, so far as the same are known to the petitioners, and shall pray for the division and partition of the premises according to the respective rights of the parties inter- ested therein, or that if a division and partition of the same cannot be made without manifest prejudice to the owners, a sale thereof shall be made, and tjie proceeds divided according to the respective rights of the parties ; and such petition shall be verified by affidavit. '' The petitioner may, in his petition, require the defendants, or any of them, to answer his petition on oath, in which case the answer shall have the same effect as an answer in chancery under oath." (o) The particular matters required by the statute to be stated in a petition for partition, should be set forth, {p) Wo. 155. BiU for pfirtitlon hettoeen fioo heirs. s^jhjeH to widow' f! fjoirp/r. To the Honorable , Judge of the ( 'ourt of the County of . in the State of . In Chancery sitting: Your orator, A. li, of. etc., respectfully rei»resents unto your honor, that B. B., late of, etc., deceased, the father of your ora- tor, was in his lifetime, and at the time of his death, the owner, and seized in fee simple of the following described real estate, to wit: {Here deserihe flie premiMSA Yo)ir orator further represents, that the said B. B, being so seized of the said real estate, on or about, etc.. departed this life, intestate, leaving C. B.. his widow, and your orator and D. B., his sons, and only heirs at law. And your orator further represents, that by the death of the said B. B., your orator and the said D. B. became seized in fee as tenants in common, by descent fi'om the said B. B.. of the said descril)ed premises : that is to say, your orator and the said (o) See 111. Stat, act of 1874 : Lomalle vs. Mmard, 1 Gilm. 69. (p) Ripplf vs. QHhourne, 8 How. U. S. 4.58. 430 PARTITION SUITS. Form of Bill. D. B. each became seized of the one equal luulivided lialf part of the said premises, each of tlie said portions being subject, however, to the right of dower of the said C. B., widow of the said B. B. And your orator further represents, that the dower of the said -widow, in the said described premises, has never been admeasured, or in any way set apart to her from the estate of the said B. B. Your orator further represents, that no person or persons, other than your orator and the said D. B. and C. B., have any interest in, or title to, the said described premises, or any part thereof, in possession, remainder, reversion or otherwise. ' Your orator further represents, that he is desirous that a par- tition or divir-ion should be made of the said several parcels of land, between your orator and the said D. B., according to their respective rights, estates and interests therein ; or in case the same cannot be divided and partitioned without material injury to the parties interested therein, then that the same may be sold, and the proceeds thereof divided among such parties, accord- ing to their respective rights and interests. Your orator further represents, that he has frequently applied to the said D. B., and requested him to come to an equitable and just division and partition of the said described premises, between your orator and the said D. B., or in case they cannot agree upon an amical division, that they join in making sale of the said premises, and divide the proceeds thereof; but so it is, may it please your honor, the said D. B. wholly refuses to join in any just and equitable division or partition of the said described premises, or to join in the sale thereof, as afore- said. Forasmuch, therefore, as your orator is without remedy in the premises, except in a court of equity ; and to the end that the said D. B. and C. B., who are made parties defendant to this bill, may be required to make full and direct answer to the same, hut not under oath, the answer under oath helng hereby waived ; and that division and partition of the above described premises may be made between tlie parties, according to the course of practice in this court, and the statute in such case made and provided, and aa;ording to the respective rights of the parties interested therein, subject to the widow's dower, as aforesaid ; and in case it shall appear that a partition thereof cannot be made without manifest injury to the rights of the parties therein, then that the said premises may be decreed to be uold undei- the direction of this court, and the proceeds of the sale, after paying the costs and charges of this suit, be PARTITION SUITS. 431 Fonn of Bill. divided among the said parties, according to tlieir respective rights and interests tlierein. And that the riglits and interests of the said parties in the premises, or in the proceeds thereof, may be ascertained and declared by the court ; and that your orator may have such other and further relief in the premises^ as equity may require, and to your honor sliall seem meet. May it i>lea6e your lionor to grant the writ of summons in chancery, directed to the sherilf of the said county of com- manding him that he summon the defendants D. B, and CD. to appear before the said court, on the tir.st day of the next term tliereof, to be held at the court house in , in the county of aforesaid, then and there to answer this bill,^ etc. {Add ajfidamt.) No. 156. Bill for partition. To the Honorable , Judge of the Court of the County of , in the State of , In Chancery sitting: Your orator and oratrix, A. B. and B. B., his wife, of, etc., respectfully represents unto your honor, that E. F., the father of your oratrix, B. B., and late of, etc., now deceased, was, at the time of making his last will and testament, and also, at the time of his death, seized in fee simple, and possessed of all the following described real estate, to wit : {Here describe the p^-tm- ises ;) and being so seized and possessed as aforesaid, the said E. F. departed -this life on or about the, etc. And your orator and oratrix further represent, that the said E. F., in his lifetime, to wit, on or about the, etc., made and published liis last w'ill and testament in due form of law, and dul}' authenticated to pass real estate ; and in and by the said last will and testament, the said testator did, among other things, give, devise and bequeath unto his son, A. F., and to his heirs forever, all of the above described premises, sul)ject to a life estate therein of his mother, B. P\, the widow of the said E. F. ; as will more fully appear by the said will, when pro- duced, and by a copy thereof, hereto attached, marked " Exhibit A," and made a part of this bill. Your orator and oratrix further represent, that the said hist will and testament of the said E. F., was afterwards, on, etc., du]y proved and probated by the court of, etc., as will more fully appear by the record thereof, in the office of the clerk of said court, reference thereto being had. Your orator and oratrix further represent, that the said A. 4;;2 PAKTJTION SUITS. Form of Bill. F., on, etc., departed this life intestate and without lawful issue ; leaving vour oratrix, the said B. B., wife of your orator, A. B., vS. M., widow of C. M.. deceased, J. B., C. D. and M. W., his only heirs at law hini surviving. And your oratoi- and oratrix further represent, that the said B. F., widow of the said E. F., the testator afoi-esaid, departed this life on or about, etc. ; and that by means of the deaths of the said A. F. and B. F., as aforesaid, the said described prem- ises became and was vested in your oratrix, IS. M., widow of C. M., deceased, J. B.. C. T>. and M. W., the only heirs at law of the said A. F.. as tenants in comnum in fee. Your orator and oratrix fui'ther represent, that on, etc., and subsequent to the death of the said A. F., the said J. B. and S. B., liis wife, by thei)' certain deed, executed and acknowledged in due form of law, to pass the title to real estate, did remise, release, and quit-claim unto your orator all their right, title and interest of. in and to the aforesaid described premises ; as by the said deed, when produced, will more fully appear. And your orator and oratrix further represent unto your honor, that the several parties to this suit are seized in fee sim- ple, and entitled to the said described premises, as tenants in common ; and that their rights and interests therein are as fol- lows, to wit : your oratoi', A. B., as the grantee of the said J. B., is seized of and entitled to an undivided part thereof; that your oratrix. B. B., in her own right, is also seized of, and entitled to an undivided part thereof, etc. {Jlere set forth tlm intereds of all the ptiHiea.) Your orator and oratrix further represent, that tlie aforesaid premises is the only real estate owned in common by the par- ties to this suit; and that no other person or persons, than the parties above named, have any interest in, or title to. the said described premises, or any part thei'eof. in possession, remainder, reversion or otherwise. And your orator and oratrix further repi'c^ent, that they are desirous that a division or partition of the said described prem- ises should bi' made among the several parties seized of, or en- titled thereto, according to their respective rights and interests therein ; and in case the same cannot be divided among the owners thereof, without manifest injury or prejudice to the parties interested therein, that then the same may be sold, and the proceeds thereof divided among such })arties, according to their respective rights and interests: and for tliat purpose have made frequent applications to the otiier owners thereof. And your orator and oratrix well hoped that they would have come to an equitable division and partition, as requested by your PARTITIOK tSUlTlS. «3 Bill for Partition and Dower. orator ;iiid oiatrix, as in justice and equity they ought to have done. But now so it is, may it please your honor, that the said S. M., C. D. and M. W., defendants in this suit, refuse, under various pretenses, all of which are untrue, to comply with the reasonable request of your orator and (»ratri.\, to join in a par tition and division of the said premises. All of which actings, doings and pretenses are contrary to equity. Forasmuch, therefore, as your orator ami orutrix ;ire without remedy in the premises, except in a court of equity ; remiscs sought to be That no person or persons, other than said parties, have any interest in, or title to, the said lands, or any part thereof, in possession, remainder, reversion or otherwise. The court doth therefore order, adjudge and decree that the said petitioners C. 1).. E. V. and (i. 11., and the defendants PAirrri'ioN suits. ui Form of Decree for Partition and Dower. P, Q. and U. S., are each entitled to one-fifth part of said premises in fee simple; and the court doth further order^ adjudge and decree that a division and partition of said premises be made; that B. A., D. 0. and F. E., neither of whom appeal- to be connected with any of the parties, either by consanguinity or affinity, and who are entirely disinter- ebted, be, and they arc hereby, appointed commisssioners to make partition of said premises ; each of said commissioners shall take and subscribe an oatli, or affirmation, fairly and impartially to make partition of said lands, in accordance with the judgment of the court, as to the rights and interests of said parties, if the same can be done without manifest preju- dice to the parties in interest. The said commissioners are ordered to go upon the premises and make partition of said lands, tenements and hereditaments, assigning to each party his or her share, quality and quantity relatively considered, by metes and bounds, or other proper description, and they may employ a surveyor, with necessary assistance to aid therein; and if said commissioners shall find that said premises are so circumstanced that a division thereof cannot be made without manifest prejudice to the ]>arties in interest, they M-ill value each piece or parcel separately, and make report under their hands and seals to tin* court, during the present or next suc- (reeding term thereof. jVo. 161. Decree fm' partition mid dower. {Caption, and title of cause as in iVb. 79, ante, page 198.) This day came the complainants, by their solicitor, and the said defendants, G. B. and H. B., by W. X., their guardian ad litem, no counsel appearing for the defendant F. B. ; and it appearing to the court that each of the defendants was duly served with process more than ten days previous to the com- mencement of the present term ; and it having further appeared to the court that the defendants G. B. and H. B. are infants, under the age of twenty-one years; and the court having appointed W. X., Esq.. guardian ad litem for said infant defend- ants; and the said guardian ad, lit^m having filed his answer herein, and the complainants their replication thereto ; and the defendant F. B. still failing to plead, answer or demur to the said bill, it is ordered, adjudged and decreed by the court, that the same be taken ^o confesso against the said F. B.: and the court having ordered that this cause be referred to the master in chancery of this court to take proof of the matters alleged in said bill, and report the same to the court: and the said master M2 PARTITION SUITS. Form of Decree for Partition and Dower. •having made his report, which is hereby approved and con- linned ; and this cause coming on to be heard upon the bill, the answer of the defendants G. B. and H. B. by W. X., their guard- ian ad litem, and the replication thereto, together with the ex- hibits and testimony taken and reported to the court by the said master; and upon tlie bill taken as confessed against the defend- ant F. B.; and the cause having been argued b}' counsel ; and the court being fully advised in the premises, on consideration there- of, doth iind, etc. {Here stats the facts as they apjijear, which may he as follows :) Tliat on, etc., one E. B., late of, etc., departed this life, intestate, leaving the complainant A. B. his widow, and the complainants B. B. and C. B., his sons, and the defend- ants F. B., G. B. and H. B., his daughters, and only heirs at law ; that at the time of his death the said E. B. was seized in fee simple of the following described real estate, to wit : {Here •(Uscrihe the land.) That the said E. B. derived title to said premises from the United States, by patent bearing date on, etc. {Here set out the title fully.) That no person or persons other than the complainants and defendants, have any interest in, or title to, the said lands or to an}' pai-t thereof, in possession, remainder, reversion or otherwise. The court doth therefore order, adjudge and decree that the said complainant A. B., widow of the said E. B., be endowed of one full equal third part of the said lands and premises ; •and that the said complainants B. B. and C. B., and the defendants F. B., Or. B. and H. B., are each entitled to one- fifth part of said premises, in fee simple, subject to said dower; and the court doth further order, adjudge and decree that the said A. B. recover her dower in said premises, and that division and partition be made of the remainder thereof after the assignment of said dower, between the said B. B., C. B., F. B., G. B. and H. B., in accordance with their respective interests therein ; that B. A., D. C. and F. E., neither of whom appear to be connected with any of said parties, ^either by con- sanguinity or affinity, and are entirely disinterested, be, and they are herebv appointed commissioners to assign dower and make j^artition of said premises; each of said commissioners ghall take and subscribe an oath or affirmation as required by law. and to go upon said premises, and first set off, allot and •assign to said A. B. her dower in said premises, by metes and bounds, or otlier proper description, according to quality and quantity of said premises, giving her the homestead, or dwell- ing-house of the homestead, if she desires it, and may assign the whole of said dower in a body, or out of two or more of euch tracts, in such manner as they may deem best for all per- PARTITION SUITS. 443 Proceedings by Commissioners — Oath Required. *ons interested ; ^ and, secondly, after assigning the widow's do\yer, as aforesaid, said commissioners are ordered to make division and partition of the remainder of said premises be- tween the said B. B., C. B., F. B., ft. B. and H. B., respect- ively, assiii^ning to each one-fifth part thereof by metes and bomids, or other proper description, quality and quantity relatively considered ; and that they employ a surveyor, with necessary assistance, to aid them ; and if said commissioners sliall find that said premises are so circumstanced that dower <-annot be assigned, and a division and partition made without manifest prejudice to the parties in interest, they will fairly and impartially appraise the value of each piece' or parcel of the said premises, and a true report make, under their luinds and seals, to the court (hiring the present or at next term thereof. SECTION VII. PROCEEDINGS BY COMMISSIONERS. Required to tales an oath. — The 19tli section of the statute requires that " Such commissioners shall each take and sub- soribe an oath or affirmation fairly and impartially to make partition of the premises, according to the rights and interests <">f the parties, as 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 j^reju- b8 vs. Allen, 27 111. 119 ; see Durham vs. Mulkey, 59 III. 91. Report of Commissioners — Form of Report. of the parties, such portion should be set off to him, without taking' into consideration the vahie of such improvements, (e) The 3od section of the statute provides that, " Several parties interested in the premises mav, if they so elect, have their shares set ofi' together or in severalty." Report of oommissionerH. — The statute provides that (§ 19.) " The commissioners shall 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 tind that the lands cannot be divided, they shall so report, and shall report their valua- tion of each piece or tract separately." The report of the commissioners must conform to the re- quirements of the statute, {f) And where the land is to be divided it must be under seal : but where the land is re])orted as not susceptible of division, a seal is not required, {g) No. ]6o. Report of commissioners mahing partitnAyriy etr.. In the Court. A. B. et al. ) Term, 18—. vs. y In Chancerv for Partition. C. D. etal.) To the Honorable , Judge of the Court of the County of , in the State of Illinois, In Chancery sitting: In pursuance of a decree rendered in the above entitled cause, on, etc., we, the commissioners therein named, respect- fully report to the court, that, after each of us having takeu and subscribed an oath {or affiy^nation) fairly and impartially to )7iake partition of the premises mentioned in the said decree, according to the rights and interests of the parties as declared therein by the judgment of the court, if the same could be done consistently with the interests of the parties: or if the same (e) Dean vs. O'Mcara, 47 111. 120; Kurtz vs. Hibner. 55 Til. 514; i&w- man vs. BowUs, 19 111. 21 : Louvalle vs. Menard. 1 Gilm. 39. {/) Tibbs vs. AlUn, 27 111. 119 ; Dnrham vs. MuUpij, .59 111. 91. (17) SHllivau vs. SvlUvav, 42 111. ?A'i. 446 PAKTITIUN SUITS. Form of Report of CommiBsioners, etc. could not be so divided without manifest prejudice to the par- ties in interest, that we would lairly and impartially appraise the value of each piece or parcel of the premises sought to be divided, and a true report make to the court, — which said oath is hereto attached for greater certainty ; we went upon the premises described in said decree, to wit : {Here describe the ■premises,)^ and made partition thereof, allotting the several shares to the respective parties, quality and quantity relatively considered, according to their respective rights and interests as declared by the judgment of the court, in said decree, that is to say, we set off and allotted to A. B. in severalty, for his interest and share of said premises, being the part thereof, accord- ing to the relative value thereof, the following, to wit: {Here desci'ibe the port so allotted hy metes and hounds^ or other vr&per description ;) and to the said C. D., etc. {Here set out the same as in the last, and so proceed with each share.) And we would further report, that we employed K,. S., a surveyor, with necessary assistants to aid therein, in maldng such partition ; and that the items of the various expenses attending the execution of the said decree, including our fees, are contained in a schedule hereto annexed, marked " A," and forming a part of this our report. And that for the better understanding and more clear elucidation of the shape and situ- ation of the said premises, and of the manner in which such partition has been made by us, we have caused to be made a map thereof, showing what parts of the said premises have been allotted to the respective parties ; which map forms a part of this our report, and is hereto attached, marked " Exhibit B," All of w^liich is respectfully submitted for the approval of the court. In witness whereof, we, the said commissioners, have set our hands and seals to this our report, this day of , in the year 18 — . B. A. [l.s.] D. C. [l.s.] F. E. [l.s.] {Attach the oath, schedule A, and exhibit £.) iV^(9. 164- Report of commissioners that the premises are Tiot susceptible of division. {Proceed as in last form, No. 163, to the asterisk", and theri) And upon examination thereof, we determined, and so report to the court, that the said premises, and each piece or parcel there- of, are not susceptible oif division without manifest prejudice to the parties in interest. We further report that we have fairly I PARTITION SUITS. 44^ Decree Confirming Report of Ck)mmi8BionerB. set , in . L.S •1 . L.S •1 L.f! •] and impartially appraised the value of each- piece or parcel of the premises sought to be divided, and fix the value of each piece or parcel separately, as follows, that is to say, we fix tlie value of, etc., {Here descnhe the piece w parcel,) At doU lars; and of, etc., {Jlere describe the second piece or parcel,). at dollars ; and of, etc. [and so on each tract.) And we would further report that the items of the variouo expenses attending the execution of the said decree, including our fees, are contained in a schedule hereto annexed marked "A," and forming a part of this our report. All of which is respectfully submitted. In witness whereof, we, the commissioners, have hands and seals to this our report, this day of the year 18 — . B. A. D. C. F. E. {Attaxih oath Wful schedtU^ A.) No. 165. Decree carijinniny repoi't of commissioners. {^Caption, and title of cause as in JVo. 79, arnte, pa(/e 198.) This day came B. A., D. C. and F. E., commissioners, appointed by the court to make partition of the lands in a former decree mentioned between the parties thereto, and made report of their proceedings, and that they had made partition as in and by said decree they were required ; and the court having examined the same, doth find that the said com- missioners have, in every respect, proceeded according to law» and the judgment of the court in said decree declared, and that said partition was fairly and impartially made, and no objections or exceptions being made by any of the parties herein thereto ; and the court being fully advised in the prem- ises, doth order, adjudge and decree that the proceedings, par- tition and report of said commissioners be, and the same are hereby approved and confirmed, and that the said parties hold in severalty the shares set ofi:' and assigned to each, respect- ively, by the said commissioners, and that the title to the shares set ofl^" and assigned by said commissioners to each of said parties, respectively, be, and the same is hereby vested in the said parties, respectively, according to said assignment. And it is further ordered that the report of said commission be spread at large upon the records of this court. And it is further ordered that the costs and expenses of this proceeding be paid within days by the parties, in the following" proportiojis, to wit: That, etc., {Here set out the 448 PARTITION SUITS. Exceptions to Report of Commissioners — Decree of Sale. p-rapartions each party is required to pay ;) and that tlie same be paid within days from this date, and in default thereof, that execution issue therefor. SECTlOiX VIII. KXCEKflONS TO REPOKT OF COMM1S8IONKE8. On filing of the report of the comniissionerb in partition, either party may hie exceptions thereto, and the court will hear evidence in support and against such report, and approve or disapprove of the same, as the facts may justity. And inequality of value, as well as inequality in quantity, is held to be a good cause for setting aside a report of commissioners ; and, upon the hearing of such exceptions, the facts may be shown by affidavit. (A) SECTION IX. DECKEE OF SALE, The statute of 1874 provides that (§ 26. ) " When the whole or any of the premises sought to be partitioned cannot be divided without manifest prejudice to the owners thereof, and the commissioners appointed to divide the same shall so report, the court shall order the premises so not being susceptible of division to be sold at public vendue, upon such terms and notice of sale as the court shall direct. (§ 27.) •' But no piece or parcel of tin- pr(iui;r> shall be sold, if it will not bring at least two-thirds as much as it shall have been valued by the commissioners, unless the other piece will, at the same time, sell for enough to make the total amount of the sales equal to two-thirds the total amount of the valuation of all the premises to be sold : Prmnded. that if it shall appear to the court that any of the premises will not sell for two-thirds the amount of the valuation thereof, the court may appoint other commissioners to revalue such premises, and their valuation (A) Riggs ts. DieMmon, 3 Scam. 438. PARTITION SUIT8. 443 ^"!«^ °' Sale -Dower Interest. -^^^^i;;;^'^;;;;^ Shall be taken instead of the valuation of the couunissionera nrst appointed. (§ 28.) "The court may direct the .sale to be made for cash or on such credit as may be deemed most for the interest of all the parties. An order of sale cannot be made until after a decree of par- tition shall first be entered of record, and the preliminary steps provided by statute taken under such decree, and the commis- sioners shall report that partition cannot be made without manifest prejudice to the parties in interest, (i) Dower interest, ete.~The statute provides that (§ 32.) " In case of sale the court may, with the assent of the person entitled to an estate, in dower or by the courtesy, or for lite or tor years, or of homestead, to the whole or any part of the premises, who is a party to the suit, sell such estate with the rest; but such assent shall be in writing, and signed by such person, and tiled in the court wherein the said proceedings for partition are pending. ^ (§ 33.) " If such persons are incapable of giving assent, the court may determine, taking into view the interests of all' the parties, whether such estate ought to be excepted from tiie sale, or sold. (§ 34.) "When any such interest is sold, the value thereof may be ascertained and paid over in gross or the proper pro- portion of the funds invested, and the income paid over to the party entitled thereto, during the continuance of the estate." Interest of unknown owners.— The statute further provides that {§ 35.) " If tiie person entitled to any such estate is unknown, • the court may determine whether the estate shall be sold or not, as in case of persons under disability, and in the event of sale, make such order for the protection of the rights of such person, in the same manner, as far as mav be, as if the person were known and had appeared. (i) McLnin va. Van Winkle, 46 111. 406. 39 450 PARTITION SUITS. Form of Decree of Sale. (§ 36.) " Where a sale of premises is made, and no person a])pears to claim such portion of the money as may belong to any non-resident or person whose name is unknown, the court shall requii'e such money to be deposited in the state treasury, sub- ject to the further order of the court, and all moneys so required to be deposited shall be received by the state treasurer and paid out upon the order of the court. (§ 37.) " When money is deposited in the state treasury, under the provisions of this act, the person or persons entitled to the same may, at any time, apply to the court making the order of sale, and obtain an order for the same upon making satisfactory proof to the court of his right thereto." No. 166. Decree for sale of jpremises. {Caption, and title if cause as in No. 79, 'a,nte, page 198.) This day came again the petitioners {o7' complainants), by L. M., their solicitor, and the infant defendants E. F. and G. H., by B. S., their guardian ad litem, no counsel appearing for the defendant C. D., and the said B. A., D, C. and F. E., commissioners, heretofore appointed herein by the couit to make partition of the premises hereinafter mentioned, made report that the same are so circumstanced that a division thereof cannot be made without manifest prejudice to the par- ties interested ; and the court having examined said report doth lind that said commissioners have, in all respects, pro- ceeded in accordance with the law and the terms of the decree under which they were appointed ; and the court being fully advised in the premises, doth order, adjudge and decree that the proceedings of said commissioners and their report be, and the same are hereby approved and confirmed ; and, thereupon, this cause coming on to be heard upon the report of said commissioners, and the court having heard the arguments of counsel, and l^eing fully advised in the premises, and on consideration thereof, doth order, adjudge and decree that the said premises, to wit : {Here describe the premises^ be sold at public auction, at, etc., to the highest and best bidder, provided the said bid upon each piece or parcel shall be equal to at least two-tliirds of the valuation put upon tlie same, as shown by the report of the commissioners here- tofore appointed by the court to make partition thereof, which said sale shall be made on the following terms: {Here Bet out the terms of sale.) That the master in chancery of PARTITION SUITS. 451 Exceptions to Report of Sale — Confirmation of Sale. this court be, and he is hereby directed to make said sale, and to carry into effect this decree. The said master will first give public notice of such sale, and the time, place and terms thereof, by publication in some public newspaper printed and published in said county, for at least four weeks prior to such Bale, and by posting written or printed notices thereof in at least five of the most public places in the neighborhood where said premises are situate ; and, upon the confirmation of the report of said master, he shall execute and deliver to the purchaser or purchasers of the premises so sold a proper deed or deeds of conveyance thereof. The said master will bring the money, etc., realized from such sale into court, to be distributed to the parties entitled thereto, under the direction of the court ; the said master will report his proceedings herein to the court at the next term thereof, to which time this cause is hereby con- tinued. SECTION X. EXCEPTIONS TO REPORT OF SALE. Upon the master's making report of sale, exceptions may be taken, and if it appears that the requirements of the statute or decree of sale have not been complied with, or any other suffi- cient ground appears, the court will set the sale aside. And some proof, independent of the assertion of the master or com- missioner making the sale, must be made that public notice was given of a sale of land in partition, otherwise the sale will not be confirmed, {j ) SECTION XI. CONFIRMATION OF SALE. (§ 30.) " Upon the confirmation of the report of the master, special commissioner or other oflicer making the same, or some person specially appointed thereto, shall execute and deliver to the purchaser or purchasers of the premises sold proper convey- ances thereof, taking in case of sale on credit, security as required by the decree ; which conveyance shall operate as an effectual (j) TihU vs. Allen, 29 111. 535; see Dunrdng vs. Dunning, 37 111. 306; Comstock vs. Purple, 49 111. 158. 453 PARTITION SUITS. Form of Decree Confirming Sale. bar against all parties and privies to said proceeding, and all persons claiming under them." No. 167. Decree confirming sale m, partition. ( Ca/ption, and title of cause as in Wo. 79, ante, page 198.) This day came the master in chancery, appointed by a former decree of the court, herein, to make sale and to carry into effect said former decree, and made report of his proceedings ; and the court having examined the same, 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 «ale was fairly made ; and the court being fully advised in the premises, doth order, adjudge and decree 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 execute and deliver to the said O. M., the purchaser at said sale, proper conveyances of the premises so sold ; and that out of the proceeds of said sale, he pay first the costs and charges of this proceeding, and that the said master dis- tribute the residue of said moneys between the said parties in the following proportions, to wit : To the said A. B. dollars ; to C. D. dollars ; to, etc. etc. CHAPTER XXXI. PKOCEEDINGS FOR DOWEK. Section 1. Nature of Dowek. 2. In what Profehty Dower ATTACHBa 3. Dowek, how Bakhed. 4. Elements and Incidents ok Dower. 5. Suits for Dowek. 6. Frame op Petition. 7. Process op Appearance in. 8. Interpleader. 9. Hearing and Decree. 10. Commissioners to Assign Dower. 11. Allowance in Lieu of Dower. 12. Damages for Refusal to Assign Dower. 13. Mode of Ascertaining Value of Dower. 14. Miscellaneous Provisions op the Statute. SECTION I. NATURE OF DOWER. Dower is an estate for life which the law o-ives the widow in the lands and tenements, or hereditaments, of which the husband was seized during coverture. Strictly, it applies only to what the law gives her, independent of any act of the hus- band, and which, in fact, it is not in his power to bar. A marriage portion, therefore, whether given with the wife or secured to her use, and whether so given or secured by the father or other relative, or by the husband himself, is not dower ; and yet the term by which such marriage portion was designated in the Roman law was used by Bracton and other English writers, for the right of the widow in the lands and tenements of her deceased husband given to her by the com- mon law, as well as the endowment in contemplation of marriage, which last was also called donatio ante nuptias. The English word dower expressed the former, and also the donation before marriage, which was in two modes, viz., ad 454 PROCEEDINGS FOE DOWER. Nature of Dower. ostium. ecclesicB, and ex assensu patris. Botli of these endow- ments were made at the porch of the church, after affiance and before marriage ; in the one the husband endowed the wife of lands of which he was himself seized ; in the other, with the consent of his father, he endowed her of lands belon^rins to the father ; and it was usual to specitj the particular lands intended. Endowments at the church door was the common mode of providing for the wife in the time of Bracton (1260), and no other mode could be substituted, as bv will or other convey- ance, the object of which was to prevent fraud. The feudal restriction against alienation of lands was, how- ever, extended to dower, and the husband was not allowed to endow the wife ad ostium ecclesioB of more than one-third part of his lands. This gave rise to the common law rule which has ever since prevailed. In the absence of such donation, or in case of the omission to specify the particular lands, it was prescribed that the wife should be entitled to one-third of the lands of the husband for life if she survived him, which was called dos rationabilis. It was at first limited to the lands which the husband had at the time of the donation, unless he especially charged his future acquisitions ; and in case he had no lands, or not sufficient, he was permitted to endow his wife of personal property, which was held to be a bar against any claim to dower of lands there- after acquired. But in Magna Charta it was provided that the wife should have for dower the third part of all lands which the husband had held during his lifetime, unless she had been en- dowed with less ad ostium ecclesice: In the reign of Henry lY, (A. D. 1403,) it was denied that the wife could be endowed of her husband's goods and chattels ; and Littleton, who wrote in the reign of Edward lY, (1466,) asserted that she could be endowed ad ostiutn ecdesim of more than a third part of the lands, and that she had the election, after the death of her husband, to accept it or to take her dower at common law. In consequence of this uncertainty, that mode of endowment fell into disuse, but was never abolished by law until the reign of William lY, (1833.) PROCEEDINGS FOR DOWER. 455 Nature of Dower. Dower at common law is different from the dotation of other countries, in being limited wholly to lands, and to such only as the husband holds in fee. By the civil law the donatio ante miptias or, as Justinian called it, -propter nuptias, was all the provision made for the wife. It might consist of either lands or personal property ; but though it went into tlie possession of the husband, it could not, if it consisted of lands, be alien- ated by him even with the wife's consent, for which the reason given is the fragility of the female sex. Upon the death of the husband, or dissolution of the marriage otherwise, the wife only took what had been given her on the marriage, or of which a donation had been made during the marriage. Of the other property of the husband she could take nothing either as widow or heir. In France, the two modes of providing for the wife are desig- nated by the discriminative terms dot and douaire ; the former of which is defined to be that which the wife brings in mar- riage ; the latter is the right which the wife has, by custom or matrimonial contract, to a certain portion of the estate of the husband upon his death. The origin of douaire was that in some provinces of France, called France coutumiere^ women were not endowed on marriage, and hence grew up the custom that the husband, at his death, should leave something for the support of the wife. What was so left was called either dot or douaire^ the wife being said to be douee or dotee. But as it was intended for her support merely, it was provided that after her death it should go to the children of the husliand if he left any. Philip Augustus, (A. D. 1484,) fixed the dower of the wife at one-half of the goods which the husband had at the marriage. Henry II, (A. D. 1164,) of England, established in his French provinces a rule that dower should be one-third, and this difference continued to exist on the opposite sides of the Loii-e, until the customary law was swept away by tlie legisla- tion which succeeded the revolution of 1789. By the present law of France married people may, by stipu- lation made before marriage, become subject to the law of the community, or to the law of dowery. If the former, it brings 45G PROCEEDINGS FOR DOWER. Nature of Dower. into coinrnon stock all the movables of which the parties are possessed at the time of marriage, and of the immovable which shall be acquired during marriage. Dower [Ul dot) is what the wife brings to the husband in marriage, and it may be either by donation from another or by a settlement of the wife upon herself, and it may extend to all the present or future property of the wife, but cannot be consti- tuted or augmented during marriage. The parties may stipu- late for a community of future acquisitions only. The husband has the management of dotal property, but is accountable as a usufructuary, and in case it be put in peril the wife may obtain a separation of goods. The English law of dower has undergone very great changes. By statute 3 and 4, William lY, ch. 105, the widow is not entitled to dower of lands which the husband has disposed of in his lifetime, or by will. All charges by will and all debts and incumbrances to which the estate of the husband is sub- ject, take priority of dower ; and dower is made subject to any restrictions which the husband may impose by will. But, on the other hand, the wife is entitled to equitable dower of any beneficial interest of the husband which shall amount to an estate of inheritance in possession, except joint tenancy ; and no gift of personal property by the husband can invalidate the right to dower, unless so expressly declared by will. This modification of the law of dower has probably grown out of the general custom prevailing in England among the land proprietors of making marriage settlements. In cases where this is omitted, the wife still has some provisions under the statute of distribution of 29 Charles II, (1679,) which gives her one-third of the personal estate of the husband when he dies intestate, not for life merely, but absolutely. In the United States, the general rule prevails of allowing to the widow an estate for life in one-third of all the lands of which the husband was seized in fee. The rule, however, varies in different states in two particulars : In JSTew York, Illinois, and most other states, dower is a charge upon all the lands of which the husband was seized at any time during coverture, except such as she has released by joining in the PROCEEDINGS FOR DOWER. 457 In what Property Dower Attaches. conveyance thereof by the husband. In some of the states, as Vermont, Connecticut, Tennessee, North Carolina, and Georgia, it is limited to the lands of which the husband was seized at the time of his death ; but the husband is not allowed to bar dower by will nor by a voluntary conveyance, in wliioh any benefit is reserved to himself. Again, in Pennsylvania, Ten- nessee, and Missouri, dower does not attach to lands sold under judicial process, nor to lands sold under a mortgage executed by the husband alone. The rule is general, perhaps universal, that the wife takes one-third of the personal estate upon the death of her husband in accordance with the English statute of distribution. In almost all the states the mode of assigning dower is regulated by very minute statutory provisions ; and to these, in each state, reference must be made for the particular mode of procedure, and the powers of the court. SECTION II. m WHAT PROPERTY DOWER AITACHES. The 1st section of the revised law of 1874, in relation to dower, provides " That the estate of courtesy is hereby abol- ished, and the surviving husband or wife shall be endowed of the third part of all the lands Avhereof the deceased husband or wife was seized of an estate of inheritance at any time during the marriage, unless the same shall have been relin- quished in legal form. Equitable estates shall be subject to such dower, and real estate of every description contracted for by the deceased husband or wife, in his or her lifetime, the title to which may be completed after his or her decease." A widow can be endowed of estates of inheritance only, {a} To entitle the widow to dower on account of the equitable estate of her husband, he must at some time during coverture have been seized of an equitable estate of inheritance in the property ; that is, an equitable title to the property must have (a) DaTenport vi=. Fnrrer, 1 Scam. 314 ; Stribling vs. Ross, 16 .lU. 122. 458 PROCEEDINGS FOR DOWER. In what Property Dower Attaches. presently existed in him, which title, had he died at the mo- ment, would have descended to his heirs at law as real estate, instead of going to his personal representatives as chattel in- terest or chose in action, {h) She is not dowable of improve- ments put upon the land after the alienation by her husband, but is entitled to the benefit of its increased value, arising from other cause than the labor and expenditure of the alienee, {c) A preemption right is not an estate of which a widow can be endowed, (d) Nor will dower be assigned in an estate em- braced in a contract of purchase which was assigned by the husband in his lifetime, {e) If the husband never had a title to land, but only a contract, which might ripen into a title, which he assigned, any act of the husband, in completing the title, subsequent to the assignment, will not aid the wife in obtaining dower. {/) But if the contract is transferred after its terms are complied with, and the husband is entitled to a conveyance, the lands are subject to dower, {g) A sale of land under a mechanic's lien, which attached before the execution of a deed of trust on the same property, will de- feat the title under the deed of ti-ust, and will revive the right of dower in the widow, although the wife had joined in the deed of trust, (h) A widow is dowable in wild or unimproved lands, {i) and in inheritable equitable estates, (j) and in money paid for lands condemned for public uses, {k) A¥here a person holds land in trust for another, the wife of (6) Mchol vs. Ogden, 29 111. 377 ; see Wichol vs. Miller, 37 111. 388 ; Atkin vs. Merrell, 39 111. 62 ; Stowe vs. Steele, 45 111. 828. (c) Summers vs. Babb, 13 111. 483 ; Oove vs. Gather, 23 111. 634. (d) Davenport vs. Farrer, 1 Scam. 314. {e) Owen vs. Bobbins, 19 111. 545. (/) Barter vs. Bicing, 24 111. 617 ; Oicen vs. Bobbins, 19 111. 545 ; Woolky vs. Mofjie, 26 111. 526. (g) Stowe vs. Steele, 45 111. 328. (h) Gove vs. Gather, 23 111. 634. (t) Schmbly vs. Schnebly, 26 111. 116. {j) Atkins vs. Merrell, 39 111. 62 ; Stowe vs. Steele, 45 III. 328; Steele vs. Magie, 48 111. 396; see Strnwn vs. Strawn, 46 111. 412. (k) Bonnerft vs. Peterson, 44 111. 253. PROCEEDINGS FOR DOWER. 459 Aliens Entitled to — Mortgaged Land, etc. the trustee is not entitled to dower. But, until the establish- ment of the trust, the widow is prima facie entitled to dower, {l) Alieim entitled to dower. — The ^d section of the revised dower act provides that " The surviving husband or wife of an alien shall be entitled to dower the same as if sucli alien had been a native born citizen of the United States." Dower in landa mortgaged before marriage. — The statute provides : (§ 3.) " Where a person seized of an estate of inheritance in land, shall have executed a mortgage of such estate i)efore marriage, the surviving husband or wife of such person shall, nevertheless, be entitled to dower out of the lands mortgaged, as against every person, except the mortgagee and those claim- ing under him." Dower in lands mortgaged to secure p^ircJiase m,oney. The statute is as follows : (§ 4.) " AVhere a husband or wife shall purchase lands dur- ing coverture, and shall mortgage such lands to secure the payment of the purchase money thereof, the surviving wife or husband shall not be entitled to dower in such lands, against the mortgagee or those claiming under him, although slie or he shall not have united in such mortgage, but shall be enti- tled to dower as against all other persons." Dower in surplus after sale on mortgage. — The statute pro- vides as follows : (§5.) "When, in either of the cases specified in the two preceding sections (3 and 4), the moitgagee, or those claim- ing under him, shall, after the death of such husband or wife, cause the land mortgaged to be sold, either under a power contained in the mortgage, or by virtue of the judg- ment or decree of a court, and any surplus shall remain, after the payment of the moneys due on such mortgage, and the (I) Bailey vs. West, 41 111. 290. 460 PROCEEDINGS FOR DOWER. Dower, how Barred — Jointure, etc. costs and charges of sale, such survivor sliall be entitled to the interest or income of one-third part of such surplus, for life, as dower." Money borrowed of a third person and invested in the pur- chase of land, is not purchase money within the meaning of the 4th section of the dower act, which we have above quoted, {rn) Dower does not attach to estate created hy mortgage. — The 6th section of the dower act provides that (§ 6.) " No person shall be endowed of lands conveyed to his or her wife or husband by way of mortgage, unless such wife or husband have acquired an absolute estate during the marriage." SECTION III. DOWEK, HOW BAKRED. At common law, dower is barred in various ways : 1st. By adultery of the wife, unless it has been condoned, 2d. By a joint settlement on the wife. 3d. By the wife joining her husband in a conveyance of the estate. 4th. By the husband and wife levying a fine, or sutfering a common recovery. 5th. By a divorce a vinculo Tnatrimonii. 6th. By an acceptance by the wife of a collateral satisfaction, consisting of land, money or other chattel interest, given instead of it by the husband's will, and accepted after the husband's death. The right of dower is liable to be defeated by every subsist- ing claim or encumbrance existing prior to the husband's title, and which would have defeated his seizin. By jointure, etc. — The sections of the revised dower act, as to the effect of jointure, are these : (§ 7.) " When an estate in land shall be conveyed to an intended husband and wife, or to either of them, or to any person in trust for such intended husband and wife, or either (m) Jenes&n vs. Oarden, 29 111. 199. PROCEEDINGS FOK DOWER. 461 Dower, how Barred — By Will, etc. of them, for the purpose of creating a jointure in favor of eitlier of them with his or her assent, to be taken in lieu of dower, such jointure shall bar any right or claim for dower by the party jointured in any lands of the other. (§ 8.) "The assent required in the preceding section shall be evinced by the party, if of full age, becoming a party to the conveyance by which such jointure is settled, or, if a minor, by joining with the father or guardian in such convey- ance. (§ 9.) " If before marriage, but without such assent, or if alter marriage, land shall be given or assured for the jointure of a wife or husband in lieu of dower, such wife or husband may elect whether to take such jointure, or to be endowed as herein provided, but shall not be entitled to both." By wiU, etc. — The following are the sections of the statute in relation to the effect of a will upon dower: (§ 10.) " Any devise of land, or any estate therein, or any other provision made by the will of a deceased husband or wife for a surviving wife or husband shall, unless otherwise expressed in the will, bar the dower of such survivor in the lands of the deceased, unless such survivor shall elect to and does renounce the benefit of such devise or other provision, in which case he or she shall be entitled to dower in the lands and to one-third of the personal estate after the payment of all debts. (§ 11.) "Any one entitled to an election under either of the two preceding sections shall be deemed to have elected to take such jointure, devise or other provision, unless, within one year after letters testamentary or of administration are issued, he or she shall deliver or transmit to the county court of the proper county a written renunciation of such jointure, devise or other provision." A widow, under the statute, is only barred of her dower when the husband has made a devise of land to her, or some interest therein, with her express or implied assent. The 462 PROCEEDINGS FOR DOWER. Dower, how Barred — By Will, etc. mere bequest of personal property without a provision that it shall bar dower, would not produce that result, (n) Where a will directs that land shall be converted into money and given to distributees, it is personalty, and does not give an interest in the land ; and if the widow was one of the distributees, her right of dower is not thereby barred, (o) A widow, by claiming her share of the purchase money arising out of contracts for the sale of real estate made by the testator in his lifetime, no deeds having been executed, thereby bars her right of dower in the lands sold. ( p) It is a general rule that when the inchoate right to dower is once vested, tliat right cannot be divested, except by her own voluntary act, performed in the mode prescribed by law. (q) Where a deed from a husband and wife becomes inoperative as to the husband's estate, because made in fraud of the rights of creditors, or from any previous lien or incumbrance, or where the purchase money is recovered back for a defect of title in the husband, or by reason of any wrongful act on the part of the husband, the wife's dower in the land is not barred by the deed, (r) W/iere husband or wife die without issue, etc. — The statute provides that (§ 12.) " If a husband or wife die testate, leaving no child or descendants of a child, the surviving husband or wife may, if he or she elect, have, in lieu of dower in the estate of which the deceased husband or wife died seized, whether the right to such dower has accrued by renunciation as hereinbefore pro- vided, or otherwise, and of any share of the personal estate which he or she may be entitled to take with such dower, abso- lutely, and in his or her own right, one-half of all the real and personal estate which shall remain after the payment of all just (n) StrUMng vs. Ross, 16 111. 132 ; Jennings vs. Smith, 29 111. 116. .. (p) Jennings vs. Smith, 29 111. 116. (jj) Skinner vs. Newberry, 51 111. 203. (g) Nieoll vs. Ogden, 29 111. 386 ; Nichol vs. MUler, 37 111. 388 ; see BoyUi VB. McMurphg, 55 111. 236. (r) Morton vs. Nolle, 57 111. 176. PROCEEDINGS FOK DOWER. 463 Dower, how Barred — Renunciation of Will — Divorce, etc. debts and claims against the estate of tlie deceased husband or wife. The election herein provided for may be made whether dower has been assigned or not, and at any time before or within two months after the notification to the survivor of the payment of debts and claims, and not afterwards." Renunciation of right under wiU^ etc. — The statute provides that a husband or wife may renounce his or her ri^'hts under a will or jointure in the following manner: (§13.) "The renunciation in the preceding sections (7. 8, 9, 10, 11 and 12) required, may be in the following form, to wit : ' I, A. B., surviving wife (or husband) of C. D., late of the comity of , and state of , deceased, do hereby renounce and quit all claim to the benefit of any jointure given or assured to me in lieu of dower (or any devise or other provision made to me by the last will and testament of the said C. D., or other- wise, as the case may be,) and I do elect to take in lieu thereof my dower and legal share in the estate of the said C. D., (or otherwise, as the case may require.)' " "Which renunciation shall be filed in the ofiice of the clerk of the county court, and entered by said clerk at large upon the records of the court, and shall ojierate as a complete bar to any claim which such survivor may afterwards set up to any jointure, devise, testamentary provision or dower thus renounced." {s) Effect of divorce, etc. — The statute in relation to the effect of a divorce upon dower is as follows : (§ 14.) " If any husband or wife is divorced for the fault of misconduct of the other, except where the marriage was void from the beginning, he or she shall not thereby lose dower nor the benefit of any such jointure ; but if such divorce shall be for his or her own fault of misconduct, such dower or jointure, and any estate granted by the laws of this state, in the real or personal estate of the other, shall be forfeited." (s) See Brown vs. Pitney, 39 111. 468 ; Simmons vs. Johnson, 47 111. 360. 164 PROCEEDINGS FOR DOWER. Dower, how Barred — AbaDdonment — Judgment — Exchange, etc. If upon a divorce a decree is rendered granting alimony to the wife in lieu of dower, the dower will be barred, {t) By abandoninent and adultery. — The statute further pro- vides that (§ 15.) " If a husband or wife voluntarily leave the other and commit adultery, he or she shall be forever barred of dower and of the benefit of any such jointure, unless they are afterwards reconciled and dwell together," Wot hy judgment, etc. — The statute provides that (?16.) "No judgment or decree confessed or recorded against a husband or wife, and no laches, default, covin, for- feiture or crime of either, no deed or conveyance of either, without the assent of the other, evinced by the acknowledg- ment thereof, as required by law, shall prejudice the right of the other to dower or jointure, or preclude the other from the recovery thereof, if otherwise entitled thereto." The dower of the wife is not defeated by a sale on judgment and execution against the husband, or otherwise than by her own assent or misconduct, {u) Insanity furnishes no reason for a court of equity to interfere to deprive a person of dower to which he or she is entitled. It can only be done by the voluntary act of such person, (v) And it would be erroneous to debar a woman of her claims to dower in premises included in a mortgage which she did not sign, {w) or acknowledge in the mode pointed out by the statute, {x) By exchange of lands, etc. — It is further provided that (§ 17.) " If a husband or wife seized of an estate of inherit- ance in lands, exchange it for other lands, the surviving hus- {t) See Armstrong vs. Armstrong, 35 111. 109 ; Marmn vs. Collins, 48 111. 156. (u) Sisk vs. Smith, Admr. 1 Gilm. 503 ; Francisco vs. S6ndricks,2S 111. 64. (v) Ex parte McElwain, 29 111. 442. , (w) Gold vs. Ryan, 14 111. 53. (a;) RusseU vs. Rumsey, 35 111. 362; Steele vs. GeUatly, 41 111. 39; see Johnson vs. Montgomery, 51 111. 185. PROCEEDINGS FOR DOWER. 465 Elements and Incidents of Dower. band or wife shall not have dower of both, but shall make election as hereinbefore provided, to be endowed of the lands given, or of those taken in exchange ; and if such election be not evinced, by the commencement of proceedings for the recovery and assignment of dower of the lands given in ex- change, within one year after the death of such husband or wife, the survivor shall be deemed to have elected to take dower of the lands received in exchange." Persons selling hy order of court for payment of dehts do not thereby relinquish dower, etc. — The statute provides that (§ 46.) " No person who sells and conveys lands by order of court for the payment of debts shall be deemed to have relinquished, by reason of such conveyance, any right of dower which he or she may have in such lands, unless his or her relinquishment is specified in the deed or conveyance." SECTION IV. ELEMENTS AND INCroENTS OF DOWER. To the consummation of dower, three things are indispensa- bly requisite : 1st. Marriage. This must be a marriage not absolutely void, and existing at the death of the husband ; a wife de facto, whose marriage is voidable by decree, as well as a wife de jure, is entitled to it ; and the wife shall be endowed, though the marriage be within the age of consent, and the husband dies within that age. {y) 2d. Seizin. The husband must have been seized, some time during the coverture, of the estate of which the wife is dowable. (s) 3d. Death of the husband, {a) Transfer of dower, etc. — D(>wer is a right resting in action only, until it is assigned it is inchoate, and is not the subject (y) Ck). Litt. 33, a ; 7 Co. 42 ; Doct. & Stud. 22 ; see Sisk va. Smith, Admr. 1 Gilm. 503. (2) Co. Litt. 31, a ; 4 Kent, Com. 38 ; 2 Black. Com. 132. (a) Cruise, Dig. lit. 6, ch. 2, § 22 ; 1 Vern. R. 218 ; 1 Salk. 291 : SUk vs. Smith, Admr. 1 Gilm. 503. 30 466 PROCEEDINGS FOR DOWER. Suits for Dower — Duty of Heirs to Assign. matter of sale or transfer. It cannot be sold under execution. The only use the widow can make of her dower interest, is to release it to the owner in fee, until it shall have been set apart to her. She may release it to the owner of the fee, but she cannot transfer it to a stranger, (b) A woman during coverture cannot release her dower to lands of a prior husband, (c) A widow's right of dower in land not assigned is not liable to sale on execution, {d) A former owner of the fee in land in which a dower right still exists, who has conveyed the same, with warranty, may purchase the right of dower for the benefit of his grantee, however remote, and thus prevent a breach of his covenant, {e) SECTION V. SUITS FOR DOWEK. Duty of heirs to assign dower, etc. — The statute provides that (§ 18.) " It shall be the duty of the heir at law, or other person having the next estate of inheritance or freehold in any lands or estate of which any person is entitled to dower, to lay off and assign such dower as soon as practicable after the death of the husband or wife of such person. (§ 19.) " If such heir or other person shall not within one month next after such death, satisfactorily assign and set over to the surviving husband or wife, dower in and to all lands, tenements and hereditaments whereof by law he or she is or may be dowable, such survivor may sue for and recover the same by petition in chancery, as hereinafter prescribed, against such heir or other person, or any tenant in possession, or any other person claiming right or possession of said estate." (6) Blain vs. Harrison, 11 111. 384 ; Johnson vs. Montgomery, 51 111. 185 • La Framboise vs. 07-ow, 56 111. 197 ; Siimmers \s.Bobb, 13 111. 483 ; Hoots vs. Graham, 23 111. 81 ; Bobbins vs. Einzie, 45 111. 354 ; Chicago Dock Co. vb. Kimie, 49 111. 289 ; Wlieeler vs. Einzie, Id. 297. (c) Osborne vs. Horine, 19 111. 124 ; Baikij vs. West, 41 111. 290. (d) Newman vs. Willetts, 48 111. 534. (e) La Framboise vs. Grow, 56 111. 197. PROCEEDINGS FOR DOWER. 467 Who may File Petition, etc.— Frame of Petition. Who may file petition.~{^ 4:S.) "Heirs, or, if under age, their guardians, or any other persons interested in lands, tene- ments or hereditaments, may also petition the court to have dower assigned to the person entitled thereto, which shall be proceeded in in the same manner as is prescribed in other (nses." Where petition may he filed. — (§ 20.) "The petition may be filed in any court of record of competent jurisdiction in the county where the estate, or some part thereof, is situated." Where infants are petitioners or defendants — Gua/rdian AD LITEM. — By the statute, (§ 21.) " Infants may petition by guardian or next friend, and other persons under guardianship by their conservators. When an infant or person under guardianship is a defendant, he may appear by guardian or conservator, or the court may appoint a guardian ad litem for such person, and compel the person so appointed to act." A guardian or minor cannot be in default for not assigning dower; and an infant is not bound by such assignment, {f) SECTION VI. FRAME OF PETITION. The statute provides that (§ 22.) " The petition shall set forth the nature of the claim, and particularly specify the premises in which dower is claimed, and shall set forth the interests of all parties interested therein so far as the same are known to the petitioner, and shall pray for the assignment of such dower." Parties to. — (§ 23.) " Every person having any interest in the premises, whether in possession or otherwise, and who is not a petitioner, shall be made a defendant to such petition." (/) Bonner vs. Peterson, 44 111. 253 ; Straxcn vs. Btrawn, 50 111. 256. 468 PROCEEDINGS FOR DOWER. Parties to, etc. — Form of Petition, etc. Unknown defendants. — The statute further provides that (§ 24.) " When there are any persons interested in the prem- ises whose names are unknown, or the share or quantity of interest of any of the parties is unknown to the petitioner, or where such share or interest shall l)e uncertain or contingent, or the ownership of the inheritance shall depend upon an executory devise, or the remainder shall be contingent, so that such parties cannot be named, the same shall be so stated in the petition. (§ 25.) " All persons interested in the premises in which dower is claimed, whose names are unknown, may be made parties to such petition by the name and description of un- known owners of the premises, or as the unknown heirs of any person who may have been interested in the same." Answer of defendants. — (§ 31.) "The petitioner may, in his petition, require the defendants, or any of them, to answer his petition on oath, in which case the answer shall have the same effect as an answer in chancery under oath." 1^0. 168. Petition for dower hy widow. To the Honorable , Judge of the Court of the County of , in the State of Illinois. The petition of A. B., of, etc., respectfully represents, that your petitioner, on or about the day of , 18 — , inter- married with B. B., late of, etc., who afterwards, on or about the day of , 18 — , departed this life intestate, leaving your petitioner, his widow, and C. B. and D. B., his children and only heirs at law. That the said B. B. during the time of said marriage with your petitioner, was seized in fee of the following described real estate, situate, lying, and being in the county of , in the State of Illinois, to wit : {Here insert description of the premises.) That your petitioner, by virtue of her said marriage, upon the death of the said B. B., became and was entitled to dower in the lands above described, which said dower has never been assigned or set off to your petitioner, and she has never received any compensation or equivalent therefor, or for any part thereof. Your petitioner therefore prays the aid of this honorable court in the premises, and that the writ of summons may issue out of and under the seal of this court, commanding the said C. B. I I PROCEEDINGS FOR DOWER. 469 Forms of Petition, etc. — Affidavit. and D. B., who are made parties defendant hereto, to person- ally appear Lefore this court, on the first day of the next term thereof, to be held at the court liouse in , in the county of , on the Monday of , 18 — , and then and there full, true, direct and perfect answer make to all and sin- gular the matters herein stated, and to stand and abide by the order of this honorable court in the premises ; and that upon the hearing hereof, a decree may be made by this honorable court that your petitioner recover dower in the premises above described, and that such dower may be assigned and set otf to her in the manner and according to the provisions of the stat- ute in such case made and provided ; and that your petitioner may have such other and further relief in the premises as equity may require, and to your honor may seem meet. , Sol. for Petitioner. A. B. {Add affidavit, asfolloics :) No. 169. Affidavit to petition for dower. State of Illinois, ) County of \ *" On this day (^f , IS — , personally appeared the a])ove-named A. B. and made oath and .says that f(he has heard read the foregoing petition, and knows the contents thereof, and that the same are true of her own knowledge in su])Stance and in fact, except as to such matters as are therein stated to be on information and belief, and as to such matters site believes them to be true. A. B. Subscribed, etc. No. no. Petition hy a husband. To the Honorable , Judge of the Court of the County of , in the State of Illinois. The petition of A. B., of, etc., respectfully represents, that your petitioner, on, etc., intermarried with C. B., late of, etc., who afterwards, on, etc., departed this life intestate, leaving your petitioner, her husband, and D. B., E. B. and F. ?>., her children and only heirs at law. That the said C. B. died seized in fee of the following descril^ed real estate, situate, lying, and being in the county of , in the State of Illinois, to wit : {Here describe the premises.) That your petitioner, by virtue of his said marriage, upon the death of the said C. B., became and was entitlear- ties entitled to it. They must be sworn, and the statement of that fact and the oath they took should accompany their report. And a report made by others than the commissioners appointed by the court would be void, {n) In assigning dower, commissioners should have reference to quantity and quality, so that the portion of the widow shall be equal in its yearly value to one-third of the yearly value of the tract from which it is assigned, taking into estimation its capacity for production at the time, {o) Report of commissioners. — The statute requires that (§ 38.) " The commissioners shall make report in writing, signed by at least two of them, showing what they have done, and if they have made a division, describing the premises al- lotted by metes and bounds or other proper description ; and the allotment so made, if approved by the court, shall vest in (n) Loyd vs. Malone, 23 111. 43. (o) SchneUy vs. SchneUy, 26 111. 116. 476 PROCEEDINGS FOR DOWER. Allowance in Lieu of Dower, etc. the person entitled thereto an estate in the lands and tene- ments set off and allotted to him or her for and during his or her natural life; and the court shall forthwith cause such person to have possession by writ directed to the sheriff for that purpose."' The form of the report of commissioners in partition suits may readily be adapted to a report of commissioners to assign dower, {p) Commissioners suhject to the direction of the court. — The statute provides that (§ 42.) " The commissioners shall, at all times, be subject to the direction of the court ; and any one or more of them may, before the linal conlirmation of the report, be removed, and others appointed in their stead. SECTION XI. ALLOWANCE IN LIEU OF DOWER. The statute provides that (§ 39.) " When the estate out of which dower is to be assigned consists of a mill or other tenement which cannot be divided without damage to the whole, and in all cases where the estate cannot be divided without great injury thereto, the dower may be assigned of the rents, issues and profits thereof, to be had and received by the person entitled thereto as tenant in common with the owners of the estate, or a jury may be impaneled to inquire of the yearly value of the dower therein, who shall assess the same accordingly, and the court shall there- upon enter a decree that there be paid to such person as an allowance in lieu of dower, on a day therein named, the sum so assessed as the yearly value of such dower, and the like sum on the same day of each year thereafter during his or her natu- ral life, and may make the same a lien on any real estate of the party against whom such decree is rendered, or cause the same to be otherwise secured." {p) See No. 163, ante, p. 445. PROCEEDINGS FOR DOWER. 477 Damages for Refusal to Assign Dower. (§ 40.) " Whenever any such decree is made a lien on any real estate, as provided in tlie preceding section, and a sale of such real estate shall become necessary to satisfy any such in- stallment, the property shall ])e sold subject to the lien of the installments not then due, unless the court shall at the time direct otherwise, and subsequent sales may, from time to time, be made to enforce such lien as the installments may become due, until all the installments are paid." Where a widow has petitioned to recover dower, and bv reason of the indivisibility of the property, an allowance has been made to her in lieu of dower, the sum so fixed cannot afterwards be changed by a court of equity by reason of the property subsequently becoming greatly enhanced or depre- ciated in value, (q) SECTION XII. DAMAGES FOR REFUSAL TO ASSIGN DOWER The statute provides that (§ 41.) " Whenever in any action brought for that purpose, a surviving husband or wife recovers dower in any lands, he or she shall be entitled to recover reasonable damages from the time of his or her demand, and a refusal to assign reasonable dower, which fnay be assessed by the court, or a jury, if re- quired, may be impaneled for that purpose, and execution may issue therefor." From the time a demand for dower is made, the widow is entitled to damages ; and the third of the rents which may have accrued after the demand, is held, generally, to form their proper measure, (r) The commencement of a suit for dower may be regarded as a demand therefor, (s) (q) Donoghue vs. City of Chicago, 57 111. 235. (r) Atkin vs. Merrell, 39 111. 62 ; but see also Bonner vs. Peterson, 44 111. 253 ; Peyton vs. Jeffries, 50 111. 143 ; Walsh vs. Rei». 50 111. 477 ; Stowe vs. Steele. 45 111. 328 ; Stravm vs. Strawn, 50 111. 256. (a) Id. lb. i78 PROCEEDINGS FOK DOWER. Mode of Ascertaining Value of Dower. AVliere the dower right is in separate tracts, and the yearly- value thereof is assessed, the gross sum thus ascertained should not be made a charge on all the lands, but each separate tract should be charged only with the value of the dower that arises, therefrom, (t) SECTION XIII. MODE OF ASCERTAINING VALUE OF DOWER. ETC. The value of life estates is usually ascertained by reference to scientific tables. In Massachusetts, Dr. Wiggleworth's table has been adopted by the courts as a rule in estimating the value of such estates, {u) (t) Atkin vs. Merrell, 39 111. 63. {u) Estabrook vs. Hapgood, 10 Mass. 313. I PROCEEDINGS FOR DOWER. 479 Tables to Ascertain Value of Dower, etc. DR. WIQGLEWORTH'S TABLE (o) or observation in New England, adopted by the Supreme Court of Masfachmetts, as a ruU for estimating the value of life estates. Age. ei a > a o o .2 £-3 i Age. □ p a li-i ape Isl W5 Age. a o o a u Ci Q aS. m V a a> X o At 3;^ 1,848 m 67 809 37 birth. 4,893 1,264 28.15 34 1,810 .38 68 772 .37 1 3,629 274 35 1,772 35 28.22 69 7.35 37 2 3,355 188 36 1,737 35 70 698 37 10.06 3 3,107 132 37 1,702 .35 71 666 37 4 3,035 84 38 1,667 35 1 72 624 37 5 2,951 58 40.87 39 1,632 35 73 587 .38 6 2,893 55 40 1,597 35 26.04 74 549 36 7 2,838 47 41 1,562 35 75 511 37 7.83 8 2,791 40 42 1,527 35 76 474 37 9 2.T51 36 43 1,492 35 77 437 37 10 2,717 28 39.23 44 1,4.57 34 78 400 37 11 2,687 27 45 1,423 27 2.3.92 79 363 37 12 2,660 27 46 1.396 27 80 .366 35 5.85 13 2,633 27 47 1,369 27 81 291 34 14 2,606 27 48 1,.342 27 82 257 34 15 2,579 34 36.16 49 1,315 27 1 83 223 34 16 2,537 43 50 1,288 27 21.16 84 189 34 17 2,494 « 51 1,261 27 85 155 21 4.57 18 2,451 43 52 1,2.34 27 86 l:W 21 19 2.408 43 S3 1,207 27 87 113 21 20 2.365 43 34.21 54 1,180 27 88 92 20 21 2 3i2 42 55 1,153 27 18.35 89 72 20 22 2,280 42 56 1,126 27 90 .52 8 3.73 23 2,238 42 57 1,199 27 ] 91 44 7 24 2,196 42 58 1,072 27 92 37 7 25 2,1.M 40 32.32 59 1,04.5 27 1 93 30 7 26 2,114 38 60 1,018 27 15.43 94 ai 7 27 2,076 38 61 991 27 95 16 6 i.ea 26 2,0;i8 38 62 964 27 96 10 5 29 2,000 38 63 937 27 97 5 3 30 1,962 38 30.24 64 910 27 96 2 1 31 1,934 38 65 863 37 12.43 99 1 1 32 1,886 38 66 846 37 A TABLE Showing the present value of an annuitij of one. dollar, from i to S6 years, the calculation being made at ifie rate of 5 per cent, per annum. Years. Dollars. Cents. Years. Dollars. Cents. Years. DoUarB. Cents. 1 95.23 13 9 .3.9 :« 25 14 09.39 2 1 85.94 14 •J 89.86 26 14 37.51 3 72.32 15 10 37.96 27 14 fr4.30 4 3 54.59 16 10 83.77 28 14 80.91 5 4 32.94 17 11 27.40 29 15 14.10 6 5 07.56 18 11 68.95 30 15 37.24 7 5 78.63 19 12 08.53 31 15 59.28 8 7 46.32 20 12 4<;.22 32 15 80.96 9 8 10.78 21 12 82.11 as 16 00.25 10 7 72.17 22 13 16..30 34 16 19.29 11 8 30.64 23 13 48.85 35 16 37.41 12 8 86. .32 24 13 79.86 36 16 54.68 (v) Memoirs of the .\merican Academy of .\rts and Sciences, vol. 2, p. 131. •iSO PROCEEDINGS FOR DOWER. Tables to Ascertain Value of Dower, etc. The rate of five per cent, interest per annum was taken be- cause the chief object is to estimate the value of dower. And it was observed that experience has shown that in estimating income from real estate, no more than five per cent, interest per annum can, in a majority of cases be allowed. Where the income is to be estimated at six i er cent, per annum, the Portsmouth or Northampton table can be used. PORTSMOUTH OR NORTHAMPTON TABLES. And mode of computing value of life interest, etc. No. of years No of years Age. purchase Age. purchase the annuity the annuity is worth. is worth. 1 10.107 48.. 9.707 2 11.724 49 9.563 3 12.348 50 51 9.417 4 12.769 9.273 5 12.962 52 9.129 6 13.156 53 8.980 7 13.275 54 8.827 8 13.337 55 56 57 8.670 g 13.335 8.509 10 13.285 13.212 8;i43 11 58 8.173 12 13.130 13.044 59 7.999 13 60 7.820 14 12.953 61 7.637 15 12.857 62 7.449 16 12.755 63 7.253 17 12.655 64 7.052 18 12.562 65 6.841 19 12.477 66 6.625 20 12.398 67 6.405 21 12.329 68 6.179 22 12.265 12.200 69 5.949 23 70 71 5.716 24 12.1.32 ..5.479 25 12.063 72 5.241 26 11.992 73 4.781 27 11.917 74 4.565 28 11.841 75 4.354 29 11.763 76 4.154 30 11.682 11.598 77 .3.952 31 78 3.742 32 11.512 11.423 11.331 79 3 514 33 80 3.281 34 81 3.156 35 11.236 82 2.926 36 11.137 11.035 83 . 2.713 37 84 2.551 38 10.929 85 2.402 39 10.819 86 2.266 40 10.705 87 2.138 41 10.589 88 2.031 43 10.473 89 1.882 43 10.356 90 1.689 44 10.235 91 1.422 46 10.110 92 1.136 46 9.980 93 0.806 47 9.846 94 0.518 PROCEEDINGS FOR DOWER. 481 Tables to Ascertain Value of Dower, etc. Huh for computing the value of life estate or annuit>j : Calculate the interest at six per cent, for one year upon tlie sum to the income of whicli the person is entitled. Multij>ly this interest by the number of years' purchase set opposite the person's age in the table, and the product is the gross value of the life estate of such person in .said sum. EXAMPLES. Suppose a widow's age is 37, and she is entitled to dower in real estate worth $350.75. One third of this is $116.91f. Interest on $116.91 one year at 6 per cent, is $7.01. The number of years" purchase which an annuity of one dollar is worth, at the age of 37, as appears by the table, is 11 years and .0035 parts of a year, which, multiplied by 7.01, the income for one year, gives $77.35 and a fraction as the gross value of her right of dower. Suppose a man, whose age is 50, is tenant by the courtesy in the whole of an estate worth $9,000. The annual interest on the sum at 6 per cent, is $540. The number of years' pur- chase which an annuity of one dollar is worth at the age of 50, as per table, is 9.417 parts of a year, which, multiplied by 540, the value of one year, gives $5,085.18 as the gross value of his life estate in the premises or the proceeds thereof. The values in this table are calculated on the supposition that the annuities are payable yearly ; if payable half-yearly, one-fifth of a year's purchase should be added to those values, (w) SECTION XIV. MISCELLANEOUS PROVISIONS OF THE STATUTE. Dower assigned in applications to county court for le^ive to sell lands to pay debts. — (§ 44. ) "■ Whenever application \a made to a county court for leave to sell real estate of a de- ceased person for payment of debts, or for the sale of real (w) See Jackson vs. Edwa/rdi, 7 Paiare. 408. a.s to computation of dower right. 31 482 PROCEEDINGS FOR DOWER. Waste by Persons to Whom Dower is Assigned. estate of any ward, as authorized by law, and it appears that there is a dower interest in the land sought to be sold, such court may, in the same proceeding, on the petition of the executor, administrator, guardian, or conservator, or of the person entitled to dower, cause the dower to be assigned, and shall have the same power, and may take like proceedings therefor as liereinbefore provided." Waste hj persons to whom dower is assigned. — (§ 45.) "No person who is endowed of any lands shall commit or suffer any waste thereon on penalty of forfeiting that part of the estate whereupon such waste is made, to him or them that have the immediate estate of freehold or inheritance in remain- der or reversion ; but every person so endowed shall maintain the houses and tenements with the fences and appurtenances in good repair, and shall be liable to the person having the next immediate estate of inheritance therein for all damage occasioned by any waste committed or suffered by him or her." (^ 47.) " Section 78 of an act entitled ' An act in regard to the administrations of estates,' approved April 1, 1872, is hereby repealed : Provided, that this section shall not be so construed as to affect any rights existing or actions pending at the time this act shall take effect." CHAPTEK XXXIl. BJLL8 FOR DIVOKOE. Section 1. Nature op. 2. Cause for Divorce. 3. Jurisdiction of, and Where Commenced. 4. Natural Impotenct. 5. Having a Wife or Husband Living at Time of Marriage. 6. Adultery. 7. Willful Desertion. 8. Habitual Drunkenness. 0. Attempting the Life of the Other. 10. Extreme and Repeated Cruelty. n. Conviction of Crime, etc. 12. Defenses to. 13. Injunction in. 14. Hearing and Decrees. 15. Alimony and Expenses, SECTION I. JN'ATUKE OF. A divorce is tlie dissolution of a marriage contracted be- tween a man and a woman, by the judgment of a court of competent jurisdiction, or by an act of the legislature. It is 60 called from the diversity of the minds of those who are married, because such as are divorced go each a different way from the other, {a) Until a decree of divorce be actually made, neither party can treat the other as sole, even in cases where the marriage is utterly null and void for some preexist- ing cause. {7}) A decree of divorce must also be made during the lifetime of both the parties. After the decease of either the marriage will be deemed legal in all respects, {c) (a) Kedly's Civ. and Ecd. L. pp. 11, 112 ; Bonv. L. D. 439. (b) 3 Penn. Law Journal, 151, 153. (c) Reeves, Dom. Rel. 204 ; 1 Black, Com. 440 ; Bouv. L. D. 439, 440. 484 BILLS FOR DIVOKCE. Nature of. Divorces are of two kinds: Fwst, a vinculo matrimonii — a total severance of the marriage tie ; and, second, a menm et thoro — "from bed and board," — whicb merely separates tlie parties. The divorce a vinculo niatrimonii was never granted by the ecclesiastical law, except for the most grave reasons. These, according to Lord Coke, are causa procontracttis, causa metus, causa iMipotentiai, seu fridiyitatis, causa ajffinitatis, et causa consanguinitatis — on accomit of precontract, fear, impotence or frigidity, affinity or consanguinity, {d) In England, such a divorce bastardizes the issue, and, generally speaking, is allowed only on the ground of some preexisting cause ; {e) but sometimes by an act of parliament for a supervenient cause. (/") When the marriage was dissolved for canonical causes of impediment, existing previous to its taking place, it was de- clared void ah i7iitio. In some of the states of the Union divorces d vinculo are granted by the state legislatures for such causes as may be sufficient to induce the members to vote in favor of granting them ; and they are granted by the courts to which such juris- diction is given, for certain causes particularly provided for by law. In some states the legislature never grants a divorce until after the courts have decreed one. This is still the case in Mississippi. In Wisconsin the constitution prohibits the legislature from granting divorces. In Illinois the only divorce authorized is d vinculo inat/ri- monii, and it is granted as well for causes arising after as for those existing before marriage. {(/) (d) Co. Litt. 235, a. (e) Reeves, Dom. Rol. 204-205. (/) 1 Black. Com. 440; Bouv. L. D. 440. (gr) Clark vs. Lott, 11 111. 105. BILLS FOR DIVORCE. 485 Causes for Divorce. — Jurisdiction of, and Where Commenced. SECTION II. CAUSES FOR DrVOKCE. The statutes of the ditterent states vary as to the causes of divorce. In Illinois, the revised statute of 1874, iu force July 1, 1874, provides that (§ 1.) " In every ease in which a marriage has been, or hereafter may be contracted and solemnized between any two persons, and it shall be adjudged, in the manner hereinafter provided, that either party, at the time of such marriage, was and continues to be naturally impotent ; or that he or she had a wife or husband living at the time of such marriage ; or that either party has committed adultery subsequently to the miir- riage ; or has willfully deserted or absented himself or herself from the husband or wife, without any reasonable cause, for the space of two years ; or has been guilty of habitual drunk- enness for the space of two years ; or has attempted the life of the other by poison or other means showing malice ; or has been guilty of extreme and repeated cruelty ; or has been con- victed of felony or other infamous crime, it shall be lawful for the injured party to obtain a divorce and dissolution of such marriatj-e contract." SECTION III. JURISDICTION OF, AND WHERE COMMENCED. The statute of Illinois provides that (§ 4.) " The circuit courts of the respective counties and the superior court of Cook county shall have jurisdiction in all cases of divorce and alimony allowed by this act." Where commenced. — The statute further requires that (§ 5.) " The proceedings shall be had in the county where the complainant resides, but process may be directed to any county in the state." 486 BILLS FOR DIVORCE. Complainant must be a Resident. — Impotency. Complainant must he a resident, etc. — The statute provides that (§ 2.) " No person shall be entitled to a divorce, in pur- suance of the provisions of this act, who has not resided in the state one whole year next before filing his or her bill or petition, unless the offense or injury complained of was com- mitted within this state, or whilst one or both of the parties resided in this state." Effect of divorce. — (§3.) "No divorce shall in anywise affect the legitimacy of the children of such marriage, except in cases where the marriage shall be declared void on the grounds of a prior marriage." {g) It will be convenient to consider the several grounds for divorce in Illinois separately, under various sections, which will be done. SECTION IV. NATURAL mPOTENCY AT TIlStE OF MAKRIAGE. We have seen, that under the first section of the revised divorce act, if either party at the time of marriage was, and continue to be, naturally impotent, it is a good ground for divorce in Illinois. It has always been deemed requisite to the entire validity of every marriage, not only that the parties should be of different sex, but that they shall be essentially complete in their several organizations and capabilities. " As the first cause and reason of matrimony," says, Ayliffe, " ought to be the design of having offspring ; so the second ought to be the avoiding of fornica- tion." {K) And the law recognizes these two " as the principal ends of matrimony," namely, " a lawful indulgence of the pas- sions to prevent licentiousness, and the procreation of children according to the evident design of Divine Providence, (i) When one knowingly marries another who is past the age ig) See Clark vs. Lott, 11 111. 105. (A) Ay]. Parer. 360. ft) 1 Robert. 279 ; 3 Pliill. 325, 1 Eng. Eccl. R. 408. 409. BILLS FOR DIVORCE. 487 Natural Impotencj. of procreation, he cannot complain on the ground of unfruit- fiilness. {j ) If the party married be within tliat age, and have the power of copulation, there is, ordinarily, no means of cer- tainly determining that at the time of the marriage an incura- ble sterility existed. Indeed medical writers have stated with- out qualification, that there is no such means, (k) which ia probably true, wherever there is no discoverable malformation. In all the reported cases, therefore, the principal inquirv has been as to the ability to copulate, and when, from anv cause which is irremediable, there is an inability, the object of the marriage is frustrated, [l] Every marriage contract implies a capacity in the parties of consummation, {m) When a person, knowing his own defect, induces another, who is ignorant of it, to marry him, he com- mits a gross fraud and a grievous injury ; (n) and when he is himself ignorant of it, there is equally a violation of the con- tract, and an equal injury, though there be no intentional wrong. In the former case, the marriage would be clearlv voidable on the single ground of fraud, if the principles which govern ordinary contracts were to be applied to it ; and, in the latter case, it would seem to be equally so on the ground of mis- take, and the violation of the implied warranty, (o) But owing to the peculiar nature of the contract of marriage, this infirmity, though sometimes treated as a pure fraud, (p) is, according to better opinions, regarded in a somewhat difierent aspect, (q) This matrimonial impediment is termed impotence, or impo- tency. It may be difficult to give to it a perfectly accurate and unexceptional definition : in Mr. Shelford's work, it is said to (j) Brown vs. Brow/i, 1 Hagg, 523, 3 Eng. Eccl. K. 229. (A) Guy's Forensic Med. Amer. Ed. .t1. (?) Bishop on Mar. & Div. g 226. (m) Chitty's Med. Juris. 378 : Poyntur on Mar. & Div. 123. (7i) Briggs vs. Morgan, 3 Phill. 325, 1 Eng. Eccl. R. 408,410. (0) Bishop on Mar. & Div. § 99, 100, 117, 227; Rutherford's Insf. 1, ch. 15, ij 9 ; Rogers, Eccl. La-r, 640. ip) Benton vs. Benton, 1 Day, 111 ; (i-nlford vs. Gvilford,9 Conn. 321, 327. (q) Burtis vs. Burtis, 1 Hopk. Ch. R. 537: Perry vs. Perry, 2 Paige, Ch. R. 501 ; Bishop on Mar. & Div. ^ 227. 488 BILLS FOK DIVORCE. Natural Impotency. " consist in the incapacity for copulation, or in the impossibility of accomplishing the act of procreation." (r) Frazer, in his work on Domestic Relations, defines it as the " incapacity of either spouse for the act of copulation, or as some think, the want of power to procreate children." (s) Webster has it, " ina- bility to beget." While Bishop deiines it as " such an incurable incapacity that the party can neither copulate nor procreate, {t\ Impotence, to be a ground for a divorce, must exist at the time of marriage ; {u) and it mnst be incurable, {v) And the burden of proof is on the complainant to establish that it ex- isted at the time of the marriage, and that it is incurable, {w) The sentence of divorce on the ground of impotency declares the marriage void from the beginning, (x) On a bill by the husband for the wife's impotency, it was held, that the wife will be compelled to submit to a surgical examination ; but if she has already submitted to an examina- tion by competent surgeons, whose testimony can be readily obtained, she will be excused from further examination, (y) A motion for an order to compel the defendant to submit to an examination is addressed to the discretion of the chancellor, and his ruling is held not to be appealable, (s) Where there is reason to believe that the incapacity can be removed by a slight surgical operation, the court will not annul the marriage. But the court has no power to compel a wife to submit to such operation ; and her refusal to do so furnishes no ground to annul the marriage, {a) (r) Sholford on Mar. & Div. 202. (s) Frazer on Dom. Rel. 53. (t) Bishop on Mar. & Div. § 228. (u) Bishop on Mar. & Div. § 235 ; Bascomb vs. Bascomb, 5 Foster, 267. {v) Ferris vs. Ferris, 8 Conn. 166 ; 2 Atkin. 188 ; J. O. vs. II. G. 33 Md. 401. (w) Newell vs. Newell, 9 Paige, Ch. R. 25 ; Devmibagh vs. Devanbagh, 5 Paige, Ch. R. 554 ; Welde vs. Welde, 2 Lee, 580 ; Bishop on Mar. & Div. § 235. (a:) Bishop on Mar. & Div. t^ 46, 53, 59, 226, 227, 235, 261. {y) Devanbagh vs. Devanbagh, 5 Paige, Ch. R. 554 ; sec Newell vs. Newell^ 9 Paige, Ch. R. 25. (r) Anon. 35 Ala. 326 ; see LeBarron vs. LcBarron, 35 Vt. 365. (a) Devanbagh vs. Devanbagh, 6 Paige, Ch. 175. BILLS FOR DIVORCE. 439 Form of Bill on the Ground of Impotency. No. 17^. Bill for div&txe mi the ground of impoten&y. To the Honorable , Judge of the Court of the Couuty of , in tlie State of Illinois, In Chancery sitting : Your orator, A. 13., of, etc., respectfully repre.-cnls unto your honor, that on, etc., your orator intermarried with one C. D., now C. B., at, etc. ; and that your orator is now, and has been a resident of this state for over one whole year next be- fore the tiling of this bill. Your orator further represents, that immediately after the said marriage took place your orator discovered that the said C. B., at the time of her intermarriage with your orator as aforesaid, was, and has continued to be naturally impotent, and physically incapable of entering into the marriage state ; that, etc., {Here state the particular character of the impotency /) so that the said marriage could not be consummated by the sexual intercourse of the parties. And your orator further represents, that as he is informed and believes, and so charges the fact to be, that the said im- potency and physical incapacity of the said (J. B. still exists and is incurable. Forasmuch, therefore, as your orator is without remedy in the premises, except in a court of equity ; and to the end that the said C B., who is made a party defendant to this bill, may be required to make full and direct answer to the same ; and that the said marriage between your orator and the said C. B. may be dissolved and declared null and void by the decree of this court, according to the statute in such case made and provided ; and that your orator may have such other and fur- ther relief in the premises as equity may require and to your honor shall seem meet. May it please your honor to grant the writ of summons in chancery, directed to the sherift' of the said county of , commandine him that he summon the defendant C. B. to appear before the said court, on the first day of the next term thereof, to be held at the court house in , in the county of aforesaid, tlien and there to answer this bill, etc. 490 BILLS FOR DIVORCE. ^ _ Divorce on the Ground of Former Marriage. — Form of Bill. SECTION V. ON ACCOUNT OF HAVING A WIFE OR HUSBAND LIVING AT THE TIME OF MARRIAGE. The statute authorizes a dissolution of a marriatre where either party had a wife or husband living at the time of such marriage. A second marriage, while the iirst remains undissolved by death or divorce, is, by the common law, null and void, (b) But to render the second marriage null, the first must be valid, {c) A husband is not entitled to a decree of nullity of man-iage on the ground that the former husband of his wife obtained a divorce by her fraudulent collusion, {d) Where a marriage fs declared void on the grounds of a prior marriage, the children of the subsequent marriage are illegitimate, (e) No. 175. Bill for a dworce on the ground of a former 7}iar- riage, etc., jpraying to he allowed to resume inaiden name. To the Honorable , Judge of the Court of the County of , in the State of , In Chancery sitting : Your oratrix, A. B., of, etc., respectfully represents unto your honor, that her maiden name was A. M., and she was the daughter of L. M., late of, etc., now deceased ; that on, etc., your oratrix intermarried with one C. B., the defendant here- inafter named, at, etc. ; and that your oratrix is now, and has been a resident of this state for more than years last past ; that your oratrix lived and cohabited with the said C. B., as his wife, from the time of their marriage until, etc., when she left him, and has ever since refused to live and cohabit with him. (6) Oninea vs. Relf, 12 How. U. S. 472 ; Gaines vs. Hennen, 24 How. U. S. 554 ; Carre, vs. Carre, 2 Yeates, 207 ; 2 Kent's Com. 79 ; Bishop on Mar. & Div. § 205. (c) 2 Add. 471 ; 2 Eng. Eccl. R.381 ; 12 Jur. 174 ; 11 Queen's B. Rep. 173. (d) Kinnier va. Kiiinier, 53 Barb. N. Y. 454. («) Clark vs. Lott. 11 III. 105 ; see i^ 3 of the revised divorce act of 1874. BILLS FOR DIVORCE. 491 Adultery. Your oratrix further represents, that the said C. B., at the time of such marriage with your oratrix, had a wife, who was then, and is still living, to wit : one E. B., of, etc. ; that the said C. B. and E. B. were lawfully married at, etc., on, etc., and for a considerable time thereafter lived and cohabited as husband and wife ; which said marriage was at the time of the marriage of your oratrix and the said C. B., still subsisting ; by reason whereof the said marriage of your oratrix and the said C. B, was, and is, wholly null and void. Forasmuch, therefore, as your oratrix is without remedy in the premises, except in a court of equity ; and to the end that the said C. B., who is made party defendant to this bill, may be required to make full and direct answer to the same ; and that the said marriage between your oratrix and the defendant may be decreed by the court to be null and void, according to the statute in such case made and provided ; that your oratrix may be allowed to resume her maiden name of A. M. as before marriage ; and that your oratrix may have such other and fur- ther relief in the premises as equity may require, and to your honor may seem meet. May it please your honor, etc. {Pray process as in No. 17 J^, a.nte,page JfS9.) SECTION VI. ADULTERY. The statute, as we have already seen, provides that a divorce may be granted where either party has committed adultery subsequently to the marriage. A similar provision is in the statutes of almost every state of the Union. A suit for a divorce, on the ground of adultery, will be barred by proof of a like offense by the complaining party, though committed even during the pendency of the suit, if) Adultery, to be the foundation for a divorce, must be volun- tary. If a wife be compelled by force, or ravishment, or has carnal knowledge of a man not her husband, through error or (/) Dmig vs. Davis, 19 111. 334; Christianherry vs. (JhriMinnherry. 3 Blackf. 203 ; Mattox vs. Mattox, 2 Ham. 233 ; Lesseuer vs. Lesseuer, 31 Barb. N. Y. 330 ; Clapp va. Clapp, 97 Mass. 531 ; Rihet vs. Ribet, 39 Ala. 348. 492 BILLS FOR DIVOECE. Adultery. — Circumetantial Evidence. mistake, she believiug him to be her husband, {g) or while she is insane, (A) or by her husband's procurement, {i) or marry another man through a belief that her former husband is dead, and during- the continuance of such belief lives in matrimonial intercourse with him, {j) a divorce will not be granted. Circumstantial evidence. — Adultery being peculiarly a crime of darkness and secrecy, may be, and ordinarily must be, estab- lished by circumstantial evidence. (Jc) To prove adultery by circumstantial evidence, two points are to be ascertained and established — the opportunity for the crime, and the will to commit it. Where both of these are established, the court will infer guilt. (Z) The particeps criminis is a competent witness for the com- plainant ; (m) but a court will seldom grant a divorce on such testimony unless corroborated, [n) It is not sufficient, to convict parties who may be supposed willing to commit adultery, to prove that they were in a posi- tion where it was possible to commit it. It must be shown that they were together under suspicious circumstances, which cannot be easily accounted for unless they had that design, or which could not be well explained without it. (o) (g) Ayl. Parer. 226 ; Frazer on Dom. Rel. 81, 657 ; Bishop on Mar. & Div. §204,418. (A) Broadstreet vs. Broadstreet, 7 Mass. 474; Matcliin vs. Matchin, 6 Barr, 332 ; Nichols vs. Nichols, 31 Vt. 328 ; see Wray ve. Wray. 19 Ala. 522 ; Wray vs. Wray, 33 Ala. 187. (i) Pierce vs. Pierce, 3 Pick. 299 ; Myers vs. Myers, 41 Barb. N. Y. 114; Henden vs. Henden, 6 C. E. Greene, 61. (j) Valleau vs. Valleau, 6 Paige, Ch. 207 ; Biskop on Mar. & Div. § 418. (k) 4 Porter, 467 ; Matchin vs. M((tchin, 6 Barr, 332 ; Dailiy vs. Bailey, Wright, ("L. Ohio, 514; iJay vs. Bay, 3 Green's Ch. 444; Fergnson vs. Fer- guson, 3 Sandf. Ch. 307 ; Van Epps vs. Van Epps, 6 Barb. N. Y. 320 ; Mehle vs. LapeyroUerie, 16 La. An. 4. {I) Moore vs. Moore, 1 Green N. J. 122, 276. {m) Moulton vs. Movlton, 1 Shep. Maine, 110. [n) Banta vs. Banta, 3 Edw. Ch. 295. (o) Mayer vs. Mayer, 6 C. E. Greene, N. J. 246 ; Thomat vs. Thomas, 51 111. 162 ; Larrison vs. Larrisoii, 5 C. E. Greene, N. J. 100 ; Hedden vs. Hed- den, 6 C. E. Greene, N. J. 61 ; Thayer vs. Thayer, 101 Maes. Ill ; Lyon vs. Lyon, 62 Barb. N. Y. 138. BILLS FOR DIVORCE. 493 Frame of Bill for Adultery, etc.— Form of Bill. Frame of hill charging adultery. — A divorce cannot be decreed upon a bill cbarging adultery generally, without stating either time, place or circumstances, though the persons with whom it is committed are unknown, {p) And it is held, that if the bill alleges adultery with a particular person, it will not he sustained by proof of adultery with any other per- son, {q) The name of the person with whom the adultery was commit- ted should be given. (?•) A charge of adultery with a certain woman is too indefinite, {s) if known ; and if not known, it must be alleged that it is unknown. The time and place of committing the act should also be stated with reasonable cer- tainty, {t) A charge of extreme and repeated cruelty and a charge of adultery may be joined in the same bill, and the court will decree a divorce according to the evidence produced. (?/) No. 176. Bill hi/ husband for a di^^orce, charging adultery. To the Honorable , Judge of the Court of the County of , in the State of , In Chancery sitting : Your orator, A. B., of, etc., respectfully represents unto your honor, that on, etc., your orator w^as lawfully joined in marriage with C. B., the defendant hereinafter named ; and that your orator is now^ a resident of said county, and is now, and has been a resident of this state for more than years last past ; that your orator lived and cohabited with the said C. B. as her husband from the time of their intermarriage until, etc., and in all respects demeaned himself as a kind and indulgent husband ; that on, etc., becoming acquainted with the facts hereinafter set forth, he left the said C. B., and has refused to live and cohabit with her since that time. Your orator further represents, that on, etc., at, etc., an«i at (p) Kane vs. Kane, 3 Edw. Ch. 389. (?) WasKhnrn vs.WasTiburn, 5 N. H. 195. (rt Bird vs. Bird, Wright, Ch. 98 ; Riehard« vs. Richards, lb. 300 ; Mor- rell vs. Morrell, 1 Barb. 318. (a) Mansfield ra. Mamfield, Wright, Ch. 284. (t) Morrell va. Morrell. 1 Barb. N. Y. 318. (m) Young V3. Young, 4 Mass. 430. 494 BILLS FOR DIVORCE. Form of Bills Charging Adultery, etc. various other times and places, since the said marriage, the said C B., in utter disregard and in violation of her marriage duty and obligations, committed adultery and had carnal knowledge with one E. F. ; and that the said C. B. has at divers other times and places to your orator unknown, since the said mar- riage, committed adultery with divers other persons to your orator unknown. {Here set forth any other act according to circumstances.) Forasmuch, therefore, as your orator is without remedy in the premises, except in a court of equity ; and to the end that the said C. B., who is made party defendant to this bill, may be required to make full and direct answer to the same ; and that the said marriage between your orator and the defendant may be dissolved and declared null and void, by the decree of this court, according to the statute in such case made and provided ; and that your orator may have such other and further relief in the premises as equity may require and to your honor shall seem meet. May it please your honor to grant the writ of summons in chancery, directed to the sheriiF of the said county of , com- manding him that he summon the defendant C, B. to appear before the said court, on the first day of the next term thereof, to be held at the court house in , in the county ot aforesaid, then and there to answer this bill, etc. JVo. 177. Bill for divorce hy wife, charging adultery, amd praying for alimony and the custody of children. To the Honorable , Judge of the Court of the County of , in the State of , In Chancery sitting : Your oratrix, A. B., of, etc., respectfully represents unto your honor, that she is an actual resident of said county, and is now, and has been for over one whole year last past a resident of the State of Illinois ; that on, etc., at, etc., she was lawfully married to one C. B., the defendant hereinafter named, and continued to live and cohabit with him as his wife, until, etc., when she learned, and became convinced, of his infidelity to his marriage vows and obligations as hereinafter charged, and thereupon left him, and has refused to live and cohabit with him as his wife ever since. Tour oratrix further represents, that she has ever since said marriage demeaned herself to the said C. B. as a faithful, chaste, and afiectionate wife ; and as the issue of such marriage your oratrix has born of the said C. B. two children, viz., F. B. BILLS FOR DIVORCE. 495 Form of Bill for Divorce for Adultery, etc. — Alimony, etc. and G. B., now aged three and five years respectively, who are both living, and have remained under the care and control of your oratrix. Your oratrix further represents, that the said C. B., wholly regardless of his marriage duty, obligations, and plighted faith, has for a considerable time past, and subsequently to the said marriage, to-wit, from, etc., given himself up to adulterous and licentious practices ; and that on, etc., at, etc., he, the said C. B., committed adultery and had carnal connection with one G. H. ; and has at divers other places and times, since said marriage, to your oratrix unknown, committed adultery with the said G. H., and with divers other lewd women, whose names are also to your oratrix unknown. {Here net forth any other act of fuhiUery, gwing names^ time^ plcice, ami eircum- sta/nces as near as possible^ Your oratrix further represents, that the said C. B. is a man of low, vicious, and vulgar habits, and is addicted to the use of obscene and profane language towards your oratrix and their said children, in the presence and hearing of the said children ; and is a person wholly unfit to be intrusted with the care, cus- tody, and education of children. Your oratrix further represents, that the said C. B. is the owner in fee simple of the following described real property, to-wit : [Here describe his real estate,) of great value, to-wit, of the value of dollars ; and is the owner of a large amount of personal property, consisting of, etc. {Here describe it and set forth his pecuniary circumstances and calling fidly). That your oratrix is poor, without means to support herself and children, and to prosecute this suit; and that the said C. B. is abundantly able to supply all the necessities and wants of your oratrix and the said children, but wholly neglects and refuses so to do ; and your oratrix is now com- pelled to accept assistance from her relatives and friends to live and subsist from day to day ; and that the said children and your oratrix are but poorly supplied with clothing and other comforts of life suitable to her and their condition in life. Your oratrix further represents, that the said C. B. threat- ens, and your oratrix fears that he will carry his threat into execution, to sell off all his real and personal property, to pre- vent your oratrix from obtaining alimony therefrom for the support of herself and her said children ; and that the said C. B. ought to be restrained by the injunction of this honor- able court from selling, assigning, incumbering or otherwise disposing of the said property until the heai-ing of this cause, and suitable provisions are made for the support of your oratrix and the said child reii. 496 BILLS FOR DIVORCE. Willful Desertion, etc. Forasmuch, therefore, as your oratrix is without remedy in the premises, except in a court of equity ; and to the end that the said C. B., who is made party defendant to tliis bill, may be required to make full and direct answer to the same ; that vour oratrix may be divorced and forever freed from the bonds of matrimony now existing between her and the said C. B. ; that the care, custody and education of the said children may be awarded to your oratrix ; that your honor will decree to your oratrix such portions of the property of the said C. B., or such sums of money to be paid by the said C, B. to her, as your honor may deem necessary and proper for the maintenance of your oratrix and the said children ; and that the said C. B. may be required to pay to your oratrix a sufficient sum of mo- ney to enable her to employ counsel and to prosecute this suit, and for the support of herself and the said children during the pendency thereof; and that the said C. B. may be restrained by the injunction of this court from selling, assigning, incumbering or otherwise disposing of the said property until the further order of this honorable court ; and that your oratrix may have such other and further relief in the premises as equity may require, and to your honor shall seem meet. May it please your honor to grant the writ of summons in chancery, directed to the sheriff of the said county of , commanding him that he summon the defendant to appear before the said court on the first day of the next term thereof, to be held at the court house in , in the county of aforesaid, then and there to answer this bill, etc. And may it please your honor, to grant unto your oratrix the people's writ of injunction, to be directed to the said C. B., restraining him, etc., from, etc., {Here set forth the matter sought to be enjoined^ as in the above 2)fCiyer,) until the further order of this court. {Add affidavit, JVo. 129, ante, j)<^9^ '^¥>) SECTION VII. WILLFUL DESERTION. The 1st section of the revision of the statute, as we have seen, provides that if either party " has willfully deserted or absented himself or herself from the husband or wife, without any reasonable cause, for the space of two years," a divorce may ])e granted to the party deserted for that cause. B1LL8 FOR DIVORCE. 407 Willful Desertion — Bill for. Before a divorce can he obtained in Illinois on the ground of desertion, such desertion must continue for the full space of two years, without reasonable cause, (v) And a desertion for the period of two years by the husband, residing- in this state, although commenced in a foreign juris- diction, will enable a wife to obtain a divorce, though she may not have resided in the state for one year prior to the filing of the bill, {w) Desertion, to be a cause for divorce, must be willful, and con- tinue for the full period of two years. If a bill is prematurely filed, the defect cannot be cured by filing a supplemental bill after the two years have elapsed. A hearing can only be had on the grounds which existed when the suit was commenced, and subsequent grounds cannot be incorporated into the case after the conmien cement of the proceedings, (a?) Two periods of desertion cannot be added together to make up the time specified in the statute, {y) Separation and intention to abandon must concur in order to constitute the ground for divorce. But they need not be identical in their commencement. If one should leave the other on business, and afterwards determine not to return, the desertion would commence from the time the intention was formed, (s) The term " willful desertion," as used in the statute, signifiea an intentional desertion. It does not imply malice towards the other party, (a) No. 178. Bill for divorce for willful desertion. To the Honorable , Judge of the Court of the (bounty of , in the State of , In Chancery sitting : Your orator, A. B., of, etc., respectfully represents unto your f«) Thomais vs. Thomas, 51 111. 162 ; see Reavis vs. Rearis, 1 Scam. 242. {w) Ashbaugh vs. Ashbaugh, 17 111. 476. (a;) Mmbree vs. Embree, 58 111. 394. (y) 28 Miss. 152. (s) Pinkard vs. Pinkard, 14 Texas, 356 ; Reed vs. Reed, Wright, Ch. 224 ; PJielan vs. Phelan, 12 Florida, 449. (a) Benkert vs. Benkcrt, 32 Cal. 467. 32 498 BILLS FOR DIVORCE. Habitual DrunkennesB. honor, that he is aii actual resident of the said county of > and is now, aiid has been for years last past, a resident of the State of Illinois; that on, etc., at, etc., he was lawfully married to one C. D., now C. B., the defendant hereinafter- named, and from the time of the said marriage until, etc., he Jived and cohabited with the said C. B. as her husband ; and always conducted himself towards his said wife as a true, kind and indulgent husband, and provided her with all the neces- saries and comforts of life, according to the best of liis means and their situation in life. Your orator further represents, that the said C. B., wholly regardless of her marriage covenants and duty, afterwards, on, etc., willfully deserted and absented herself from your orator, without any reasonable cause, for the space of two years and upwards ; and has persisted in such desertion, and yet contin- ues to absent herself from your orator. Forasmuch, therefore, as your orator is without remedy in the premises, except in a court of equity ; and to the end that the said C B., who is made a party defendant to this bill, may be required to make full and direct answer to the same ; and that the said marriage between your orator and the said C. B. may be dissolved and declared null and void by the decree of this court, according to the statute in such case made and pro- vided ; and that your orator may have such other and further relief in the premises as equity may require, and to your honor may seem meet. May it please your honor, etc. {Pray process as in No. 17 Ji^ ante, page J^89.) SECTION VIII. HABITUAL UKl'NKENNESS Habitual drunkenness, for the space of two years, is a ground for divorce under the statute of Illinois. What amounts to habitual drukenness is generally a question of law ; and, therefore, on the hearing of the cause, it is not sufficient that the witness testify in general terms that the de- fendant is an habitual drunkard, but the witness should give the particular facts and circumstances, so that the court may judge of their sufficiency, {h) Q>) Biehop on Mar. & Div. § 532 ; Batchehlcr vs. Bntchelder, 14 N. H. 380. BILLS FOK DIVORCE. 499 Habitual Drunkenness — Form of Bill for. In this state, where the defendant appears and denies the charges in the bill, the trial is by jury. In such case, the witness should state tacts and circumstances, and the jury will decide from these whether the defendant is an habitual drunkard or not. It would be improper to allow a witness to give his opinion on the subject. A fixed habit of drinking to excess, to such a degree as to disqualify a person fi'oni attending to his business, during the principal portion of the time usually devoted to business, is such habitual intemperance as is made a ground for divorce, (c) A divorce cannot be obtained for habitual drunkenness, if the complainant was aware of this before marriage, (d) 1^0. 179. Bill for divorce, charging habitual drunkenness, a/nd jprayi7ig for custody of children, alimony, injunction, etc. To the Honorable , Judge of the Court of the County of , in the State of Illinois, In Chancery sitting : Your oratrix, A. B., of, etc., respectfully represents unto your honor, that she is an actual resident of the said county of , and is now, and has been a resident of the State of Illinois for over one year last past ; that on, etc., at, etc., she was lawfully married to one C. B., and from that time until, etc., lived and cohabited with him as his wife, and during all that time faith- fully performed all her duties and obligations as a wife, bearing with her husband's faults and errors, and striving to make their home and family comfortable and happy. Your oratrix further represents, that the said C. D., wholly regardless of his obligations as a husband, a few years after the said marriage, commenced the excessive use of intoxicating liquors, and for more than two years last past has been guilty of habitual drunkenness ; that he has constantly been on sprees, and remained in an intoxicated condition almost continually, and has been wholly unfit to attend to his usual occupation and business during that period ; that while he is thus intoxi- cated, he is very quarrelsome and ill-treats his family, using abusive language and opprobrious epithets, rendering your (c) Mahone ve. Mahone, 19 Cal. 627. (d) Paritt vs. Poi-iU, 16 Micli. 140. 500 BILLS FOK DJNOKCE. Form of Bill Charging Habitual Drunkenness. oratrix's condition intolerable, and her life burdensome; in consequence of which she was compelled to withdraw with her children from their home. Your oratrix further represents, that as the issue of such marriage she has had bv the said C. B. three children, viz., E. B., now aged years ; F. B., now aged years ; and G. B., now aged years ; and that in consequence of his drunken habits and abusive language the said C. B. is a person wholly unfit to have the care, custody and education of said children. Your oratrix further represents, that the said C. B. is the owner in fee of the following described real projierty, to wit : {Here describe the, real estate,) of great value, to wit. of the value ot about dollars ; and is the owner of the following described personal property and effects, to wit : {Here describe;) that your oratrix is without means of subsistence, except as she is able to earn the same by her own labor ; that the said C. B. is able to support your oratrix and their said children if he was disposed to do so. Your oratrix further represents, that the said C. B. has given out his intention, and threatens, to sell and dispose of all his property as aforesaid, and to leave your oratrix and the said children without any means of support ; and your oratrix has good reasons to fear, and does fear, that he will carry his said threats and intentions into execution unless he is restrained by the injunction of this honorable court. Forasmuch therefore, as your oratrix is without remedy in the premises, except in a court of equity ; and to the end that the said C. B., who is made party defendant to this bill, may be required to make full and direct answer to the same ; that your oratrix may be divorced and forever freed from the bonds of matrimony now existing between her and the said C. B. ; that the care, custody and education of the said children may be awarded to your oratrix ; that your honor will decree to your oratrix such portions of the property of the said C. B., or such sums of money to be paid by the said C. B. to her, as your honor may deem necessary and proper for the mainte- nance of your oratrix and the said children ; and that the said C. B. may be required to pay to your oratrix a sufficient sum of money to enable her to employ counsel, and to prosecute this suit, and for her support, and that of said children, during the pendency thereof; and that tin- said C. B. may be re- strained by the order and injunction ^f this honorable court, from selling, assiguing, encumbering or otherwise disposing of the said property, until the further order of this honorable BILLS FOR DIVOECE. 501 Attempting Life of the Other — Form of Bill for. court ; and that your oratrix may have such other and further relief in the premises as equity may require and to your lionor shall seem meet. May it please your honoi-, etc. {Praying process and for injunction^ and adding ajfidacit for injunction^ as in No. 117, ante, jpage 4^4.) SECTION IX. ATTEMPTING THE LIFE OF THE OTHER. The new statute of Illinois in relation to divorce provides for a divorce where a husband or wife has attempted the life of the other, by poison or other means, showing malice. This is an entirely new provision of the statute. JVo. ISO. Bill for (lirorce, for attempting the. life of the ^ complainant. To the Honorable , Judge of the Court of the County of , in the State of Illinois, In Chancery sitting : Your orator, A. B., of, etc., respectfully represents unto your honor, that he is an actual resident of the said county of , and is, and has been a resident of the State of Illinois for years last past ; that on, etc., at, etc., he was lawfulh' married to one C. D., now C. B., the defendant hereinafter named ; and irom the date of the said marriage until, etc., he lived and cohabited with the said C. B. as her husband ; and always conducted himself towards her as a true, kind and indulgent husband. Your orator further represents, that the said C. B., wholly regardless of her man-iage covenant and duties, on, etc.. at, etc.,. did willfully and maliciously attempt the life of your orator by means of a certain poison, to wit : two drachms of arsenic, with the intent, in so doing, willfully and maliciously to take the life of your orator. Forasmuch, therefore, as your orator is without remedy in the premises, except in a court of equity ; and to the end that the said C. B., who is made party defendant to this bill, may be required to make full and direct answer to the same ; and that the said marriage between your orator and the said C. B. may be dissolved and declared null and void, by the decree of 503 BILLS FOR DIVORCE. Extreme and Repeated Cruelty. this court, according to the statute in such case made and pro- vided ; and that your orator may have such other and further relief in the premises as equity may require, and to your honor may seem meet. May it please your honor, etc. {Pray process as in No. 17^^ ante, page 4^9.) SECTION X. ; EXTREME AND REPEATED CRUELTY. If a husband or wife has been guilty of extreme and repeated cruelty towards the other, a divorce may be obtained under the statute for that cause. The cruelty must consist in physical violence, and not in angry or abusive epithets, or even profane language, and it must be shown to have been repeated, (e) Austerity of temper, sal- lies of passion, or abusive language, do not constitute such extreme and repeated cruelty, within the statute, as to author- ize a decree of divorce. {/) A wife is not entitled to a divorce on the ground of violence, if such ill-treatment has been drawn upon her by her own mis- conduct and provocation, even though such violence should proceed to blows, {g) But where a blow is given in a manner to endanger life or cause a serious bodily injury, unless given in strict defense of life and limb, no decree of provocation can excuse the act. {/i) Where the husband is the complainant, it is not sufficient to {e) Embree vs. Evibree, 53 111. 894 ; Vignos vs. Vignos, 15 111. 186 ; Shaw vs. Shaw, 17 Corn. 189; Penbody vs. Pedbody, 104 Mass. 195; Moyler vs. Moyler, 11 Ala. 620 ; Hughes vs. Hughes, 19 Ala. 307 ; BaUey vs. Bailey. 97 Mass. 373 ; Odom vs. Odom, 36 Geo. 286. (/) Turbitt vs. TnrUtt, 21 111. 438; Shell vs. Shell, 2 Sneed, Tcuu. 716; Ford vs. Ford, 104 Mass. 198 ; Hughes vs. Hughes, 44 Ala. 698 ; Conesey vs. Conesey, 60 111. 188. (g) Von Glahn \s.Voh Olahn, ^6 111.134; Knight vs. Kfiight , dl Iowa, 451 ; FelloiDS vs. Felloros, 8 N. H. 307 ; Johnson vs. Johnson, 14 Cal. 459 ; David vs. David, 27 Ala. 222 ; Skinner vs. Skinner, 5 Wis. 449 ; Trowbridge vs. Carlin, 12 La. An. 882 ; Hoioe vs. Home, 4 Nev. 395. (A) Von Glahn vs. Von Olahn. 46 111. 134 ; EidcnmvUer va. MdenmfiUer, 37 Cal. 364. BILLS FOR DIVORCE. 503 Extreme and Repeated Cruelty — Bill for. show slight acts of violence on the part of the wife towards him. {i) It is not required, under the statute of Illinois, that a party should endure " extreme and repeated cruelty " for two years, before applying for a divorce for that cause, {j) Where extreme cruelty is alleged as a cause of divorce, there should ])e a specification of the acts of cruelty complained of. {k) Although the specific acts of cruelty must i)e set out in the bill, yet the evidence is not necessarily limited to the particular facts charged. Thus, acts of personal violence, when intrinsically and separately considered, may not justity a divorce; yet when attended by habitual brutal behavior, so as to be a constant outrage upon the sense of decency and pro- priety of the party to be affected by them, a case of extreme cruelty within the meaning of the statute is established. {I) No. 181. Bill for dlvorefi on the ground of extreme and repeated ei\dente lite, and the court having heard the evidence, and the arguments of counsel for the respective parties, and being fully advised in the premises, doth order, adjudge and decree that the defendant pay to the complainant, or her solicitor, the sum of dollars on, etc., and that he pay to the complainant, or her solicitor, the further sum of dollars on or before the 1st day of each and every month, commencing on, etc., for her support during the pendency of this suit. Permanent alimony and maintenance. — The statute pro- vides that (§ IS.) "When a divorce shall be decreed the court may make such order touching the alimony and maintenance of the wife, tlie care, custody and support of the children, or any of them, as, from the circumstances of the parties and the nature 522 BILLS FOR DIVORCE. Permanent Alimony, etc. of the case, shall be fit, reasonable and just ; and in case the wife be complainant, to order the defendant to give reasonable security for such alimony and maintenance, or may enforce the payment of such alimony and maintenance in any other manner consistent with the rules and practice of the court. And the court may, on application, from time to time, make such alterations in the allowance of alimony and maintenance, and the care, custody and support of the children, as shall appear reasonable and proper. (§ 19.) " When a divorce is granted to a woman who shall, in good faith, have intermarried with a man having at the time of such marriage another wife, or wives, living, the court may, nevertheless, allow the complainant alimony and maintenance the same as in other cases of divorce ; but no such allowance shall be made as will be inconsistent with the rights of such other wife or wives, which shall first be ascertained by the court before the granting of such alimony or maintenance." Sales of real estate to satisfy decree. — The statute further provides that (§ 20.) " Whenever, in any case of divorce, a decree for ali- mony or maintenance is made a lien on any real estate to secure the payment of any money to become due by installments, and a sale of such real estate shall become necessary to satisfy any of such installments, the property shall be sold subject to the lien of the installments not then due, unless the court shall, at the time, direct otherwise, and subsequent sales may, from time to time, be made to enforce such lien as the installments may become due, unless all installments are paid." The allowance of alimony for the wife is discretionary with the court, and so also is the allowance for the maintenance of infant children, {g) And the supreme court will not disturb the decree of the court below on a question of alimony, unless manifest injustice has been done, (/i) Alimony will be granted in proportion to the wants of the party asking it, and the ability of the person who is to pay (g) Bergen vs. Bergen, 22 111 187. (A) Stewartson va. Stewartson , 15 111. 145. BILLS FOR DIVORCE. 52a Alimony — Decree for, etc. I it. And it may at any time be increased or diminished, (i) It will be allowed in such form as will best meet the condition of the parties, and make the provisions a sure reliance. The court may decree the lands of the defendant to the complain- ant in fee, and may change, after the decree, the allowance, in any manner consistent with equitable principles, [j) Upon a decree of divorce, instead of directing that the de- fendant be perpetually enjoined from selling his property, and that he be imprisoned until he give bond and security for the payment of alimony, the decree should make the alimony a lien upon his reality, to be secured by mortgage ; the sale to be enjoined until such mortgage be completed, {k) An allowance of a sura in gross in lieu of alimony, is a bar to all further claims therefor. ( Z ) Title of property held hy one party, which equitably belongs to the other. — It is provided by the statute, that (§ 17.) " Whenever a divorce is granted, if it shall appear to the court that either party holds the title to property equitably belonging to the other, the court may compel conveyance thereof to be made to the party entitled to the same, upon such terms as it shall deem equitable.'* ]^o. 193. Decree for jpermanent alimony {Caption.^ and title of cause as in y^o. 79, ante, page 19S.) This cause again coming on to be heard, as to the allowance of alimony to be paid by the defendant to the complainant; upon the bill of complaint herein, the answer thereto, the replication of the complainant to such answer, and the proofs taken in said cause, and the testimony introduced and heard in open court ; and the court having heretofore rendered a decree in said cause, dissolving the marriage between the com- (t) Foote vs. Foote, 22 111. 425 ; Parker vs. Parker, 61 111. 369. [j) Wheeler \s.Wheeler, 18 111. 39 ; Armstrong vs. Armttrong, 35 111. 109 ; Bergen vs. Bergen, 22 111. 189 ; Joliff vs. Joliff, 32 111. 527 ; see Von Glahn vs. Von Glahn, 46 111. 1.34 ; Keating vs. Keating, 48 III. 241 ; Plaster vs. Plas- ter,!iS 111. 445 ; Wightman vs.WigJitman, 45 111. 167. (k) Errisman vs. Errismnn, 25 111. 136 ; Keating vs. Keating, 48 111. 243. {J) Plaster vs. Plaster, 47 111. 290 524 BILLS FOR DIVORCE. Decree for Alimonv. plainaut and defendant ; and having reserved the consideration of the question of alimony ; and the connsel for the respective parties having been heard, and the court being full}" advised in the premises, and on consideration thereof; It is ordered, adjudged and decreed, by the court, that the defendant pay to the complainant the sum of dollars, during each and every year, commencing on, etc., and payable quarterly in advance, until further ordered by this court ; and that the defendant pay the costs of this suit to be taxed by the clerk of this court, within days from the rendition of this decree ; and that in default of the payment of any of said sums, in the manner, and at the times herein provided, that execution issue therefor. It is further ordered, adjudged and decreed, by the court, that this decree shall be and remain a lien upon all the lands and tenements of the defendant, until the defendant shall execute a good and sufficient mortgage upon his real estate, or so much thereof as may be necessar}" to secure the prompt pay- ment of the sums herein ordered to be paid, and such mort- gage be approved by the court, or under its direction. CHAPTER XXXIll. SEPARATE MAIXTEXAXCE. Section 1. Whex Granted. 2. Proceedings to Obtain, 3. Defenses to. 4. Practice in, and Decrees. SECTION I. WHEN GRANTED. The statute of Illinois provides that married women who, without their fault, now live, or hereafter may live separate and apart from their husbands, may have their remedy in equity in their own names respectively, against their said husbands, for a reasonable support and maintenance, while they so live or have so lived separate and apart; and in determining the amount to be allowed, the court shall have reference to the condition of the parties in life, and the circumstances of the respective cases ; and the court may grant allowance to enable the wife to prosecute her suit as in cases of divorce. Ground of separate maintenance. — We apprehend that the phrase " without their fault," used in the statute, has the same significance as the statute of New York allowing a separation and limited divorce. And what will justify a proceeding in the one case, is applicable to the other. At common law such a proceeding was unknown ; it is, therefore, purely a statutory remedy. In N'ew York, an action for limited divorce or separation, may be brought for the following causes : f/rst, the cruel and inhuman treatment, by the husband, of the wife ; second, such conduct on the part of the husband towards his wife, as may render it unsafe and improper for her to cohabit with him ; and third, the abandonment of the wife by the husband, and his refusal or neglect to provide for her. 52(5 SEPARATE MAINTENANCE. When Granted — Grounds for. In the case of a separation sought on the ground of cruel and inhuman treatment, it was held, in New York, that the cruelty which will entitle the party to such a judgment, is that kind of cruelty which endangers the life or health of the complain- ant, and renders cohabitation unsafe, {a) But to constitute cruelty, bodily injury or acts of personal violence, are not necessary. It is made out if there is a series of unkind treat- ment, accompanied by words of menace, creating a reasonable apprehension that bodily injury may result unless prevented ; and the word " unsafe," in the New York statute, means the same thing, {b) Words of menace, accompanied by a proba- bility of bodily violence, will be sufficient; and it may be enough if he inflict indignity merely, and threaten pain, (c) But the causes for apprehension must be weighty, and show an impossibility that the duties of the marriage life can be dis- charged. (tZ) Thus, the husband's refusal to permit his wife to attend church, of which she is a member, is not a ground for separation, {e) Nor is occasional, or even frequent intoxication a ground for separation ; nor do occasional sallies of passion, from whatever cause, amount to legal cruelty, so long as they do not threaten bodily harm. {/) An allowance will not be allowed to a wife on account of the cruelty of her husband, if the violence complained of was induced by a sufficient provocation on her part, {g) As to a proceediug for separate maintenance, on the ground of abandonment, it has been held, that, there must be shown both an abandonment and a neglect to provide. (A) For any of the grounds for divorce, alluded to in the pre- ceding chapter, a bill for separate maintenance no doubt could (a) Perry vs. Perry, 2 Paige, Ch. 501. {b) Mason vs. Masmt, 1 Edw. Cli. 278, 291 ; 2 Kent's Com. 126. (c) WJiispell vs. Whispdl, 4 Barb. 217 ; 2 Van Santv. Eq. Pr. 262, 263. id) 2 Kent's Com. 126 ; Wmpdl vs. WJmpell, 4 Barl). 217. (f) Lmrrence vs. Lawrence, 3 Paige, Ch. 207 ; and see Bnrr vs. Burr, 10 Paige, Ch. 20. (/) Ma»on vs. Mason. 1 Edw. Ch. 278. {g) Boyd vs. Boyd, Harper, S. C. Eq. 144; Griffin vs. Griffin. 8 B. Monr. 120. (A) A7ire7ifelt vs. Ahrenfelt, Hoff. Ch. 47. SEPARATE MAINTENANCE. 527 Proceedings to Obtain — The Bill, etc. be maiutained. A wife may have sufficient grounds for a full divorce, yet may not desire, for reasons satisfactory to herself, not to proceed to that extremity ; in which case she may have a separate maintenance under the provisions of the statute. SECTION II. PROCEEDINGS TO OBTAIN. Where commenced . — The statute provides that "The pro- ceedings may be commenced in the county where either the husband or the wife resides ; and the wife Avill not be required to give security for costs in any such proceeding." The Mil. — The bill for a separate maintenance may be framed substantially as a bill for a divorce, except that the prayer is different. The prayer should be for the care, custody and edu- cation of the children, if any, and that the defendant be com- pelled to make proper and suitable provision for the support and maintenance of the complainant and the children. Injunction. — If an injunction is deemed necessary to restrain the husband from disposing of, or encumbering his property, or from interfering with the complainant, or the children, during the pendency of the suit, the facts to justify such in- junction may be set forth in the bill as in a suit for a divorce. (**) No. 19 Jf.. Bill for separate maintenance. To the Honorable , Judge of the Court of the County of , in the State of Illinois, In Chancery sitting : Your oratrix, A. B., of, etc., respectfully represents unto your honor, that she is a resident of the said county of ; that on, etc., your oratrix was married to one C. B., the defend- ant hereinafter named, at, etc., and continued to live with the defendant C. B. as his wife ever since said marriage until, etc., when your oratrix was compelled to al)andon the defendant (i) See Xo. 1S2, ante, p. 504. 528 SEPARATE MAINTENANCE. Form of Bill for Separate Maintenance. C. B. for the causes hereinafter set forth ; that during the time your oratrix and the defendant cohabited as husband and wife, they had two children, namely, E. B. and F. B., the said E. B. being aged years, and the said F. B. years. Your oratrix further represents, that during the time your oratrix and the defendant cohabited as husband and wife, your oratrix faithfully discharged all her duties as such wife, and at all times treated him with kindness and forbearance ; but that the defendant, a few months after said marriage, commenced a course of unkind, cruel and inhuman conduct towards her, which continued until she finally separated from him on, etc. ; and that on divers occasions, while she lived with the defend- ant, he was guilty of such extreme and repeated cruelty towards her as to render it unsafe and improper for her to live with him ; that on. etc. {Specify the particular acts of cruelty.) Your oratrix further represents, that the defendant is a man of violent passion and ungovernable temper ; that, on many occasions, he addressed to your oratrix the most opprobrious epithets, and threats of personal violence, and has repeatedly threatened to take her life ; that, in consequence of the cruel and inhuman treatment and threats aforesaid, and such conduct as to render it unsafe for her to live with or remain near him, your oratrix was obliged, on the said day of, etc., to leave "the house of the defendant, and seek refuge with her friends, since which time she has not dared to return to the defendant's house, or live with him. Your oratrix further represents, that the defendant is seized and possessed of real and personal estate to about the amount of dollars ; and that his annual income is at least dollars ; and he is a strong, healthy man, and abundantly able to take care of and support his family ; but he has refused, and neglects to provide for the support and inaiiUenance of your oratrix ; that your oratrix has no property or income of her own, and is now entirely dependent upon the charity of her friends for support. Forasmuch, therefore, as your oratrix is without remedy in the premises, except in a court of equity, and to the end that the said C. B., who is made party defendant to this bill, may be required to make full and direct answer to the same, hut not under oath, the ansioer under oath heing hereby waived ; that the defendant may be compelled to make a proper and suitable provision for the separate maintenance and support of your oratrix and the said children, according to the statute in such case made and provided ; and that your oratrix may have SEPARATE MAINTENANCE. 539 Defenses to — Practice in, and Decrees. the care, custody and education of the said children of said marriage ; and that your oratrix may have such other and further relief in the premises as equity may require, and to your honor shall seem meet. May it please your honor to grant the writ of summons in chancery, directed to the sheritf of the said county of , commanding him that he summon the defendant C. B. to appear before the said court, on the 1st day of the next term tliereof, to be held at the court house in , in the county of , aforesaid, and then and there to answer this bill, etc. SECTION III. DEFENSES TO. The same defenses that are ajjplicable to a suit for a divorce, apply to proceedings of this nature. (^") SECTION IV. PRACTICE IN, AND DECREES. The statute makes no provision, as in suits for divorce, re- quiring a trial by jury. The case is, therefore, to be disposed of according to the usual practice in chancery suits. Reference to master. — The court may order a reference to the master to take proof of the matters alleged in the bill, so far as they are controverted. And it would seem to be the general practice in like cases to dii'ect the master to take proof, and report upon the situation and circumstances in life of the re- spective parties, to enable the court to make a proper decree in reference to the amount of allowance to be made to the wife. If the facts are sufficiently before the court, no order of refer- ence is necessary. (^•) An allowance may be decreed by the court, without referring {}) See ante, p. 508. (A;) Hammond vs. Hammond, 1 Clarke, 151 ; Monroy vs. Monroy, 1 Edw. Ch. 382. 34 530 SEPARATE MAINTENANCE. Reference to Master — Report, of, etc. the matter to the master, where neither party requests a refer- ence, (l) JS^o. 195. Order of reference to mader to take proof, etc. {Caption, and title of cause as in J^o. 79, ante, page 198.) This cause having come on to be heard upon the bill of com- plaint herein, the answer thereto, and the replication of the complainant to such answer ; on motion of the solicitor for the complainant, the defendant's solicitor having been heard in opposition thereto, it is ordered that this cause be referred to the master in chancery of this court, to take the proofs of the respective parties ; that the said master first give notice to the said parties respectively, of the time and place when and where such proofs will be taken ; and cause to come before him such witnesses as the respective parties may desire, and as he may deem necessary, and to examine them severally on oath, and reduce their testimony to writing and report the same, together with his conclusions thereon to the court. It is further ordered^ that the said master inquire and report as to the value of the defendant's estate at the time of the com- mencement of this suit, and the situation and circumstances of the respective parties ; and what would be a reasonable sum to be allowed to the complainant for her support and maintenance, and the support and maintenance of such of the children of the marriage as reside with her ; and that he also inquire and report as to the time and manner in which said sums should be paid to the complainant. iVo. 196. Report of master as to the evidence and allowa/nce. {Title of cause, address, etc., as in iVc. 75, ante, ^^a^'e IS^.) In pursuance of an order of this court, in the above entitled cause, dated on, etc., whereby it was referred to me, the under- signed, master in chancery of the court, to take the proof of the respective parties, and report the same to the court ; and to inqiiire and report as to the value of the defendant's estate at the time of the commencement of the said cause ; and the situation and circumstances of the respective parties ; and what would be a reasonable sum to be allowed to the complainant for her support and maintenance, and the support and mainte- nance of such of the children of the marriage as reside with her; and also as to the time and manner in which said sums {I) Miller vs. Mllln', Saxtou, \. J. 386. SEPARATE MAINTENANCE. 531 Report of Master — Amount of Allowance. should be paid to the complainant ; I, the said master, do report : That having given notice to the parties respectively of the time and place when and where the testimony would be taken, and having been attended by the solicitors for the complainant and defendant, and having caused to come before me all such witnesses as the respective parties desired or made known to me, I did, on, etc., at, etc., proceed to take the proofs of the respective parties ; and the several witnesses attending having been severally sworn, and examined by me, touching the mat- ters aforesaid, I reduced their testimony to writing, and have attached the same hereto, and make the same a part of this report. I would further report, that in my opinion the complainant is entitled to a decree for separate maintenance, against the defendant, for the causes set forth in her bill ot complaint ; and that the defendant has real estate of the value of about dollars, the yearly income of which is about dollars ; that the whole personal property of the defendant consists of, etc., and its value is about dollars. That two children of the complainant and defendant live with, and are entirely sup- ported by the complainant, one being a boy, aged years, and the other a girl, aged years. I further report that, in my opinion, the sum of dollars a year, payable monthly, is a suitable allowance for the present separate maintenance of the complainant ; that it ought to be payable from the commencement of this suit ; that such allow- ance be made subject to be increased or decreased in the future as circumstances may be shown to require ; that my fees herein amount to dollars. All of which is respectfully submitted. Dated, etc. Master in Chancery. Araount of allowance. — It is the duty of the master to take proof of the pecuniary circumstances of the husband, and of the condition in life and pecuniary necessities of the wife and any children she may have to support, in order to fix the amount which, in his opinion, is proper to be contributed by the husband for her support weekly, monthly, or other- wise. This amount should be fixed with reference not only to the husband's property and income, but also the claims of his chil- dren and others upon him for sustenance and education, and 532 SEPAKATE MAINTENANCE. Amount of Allowance. his ability to provide for himself and family by his own exer- tions, [m) The allowance, pending the suit, is always much smaller in proportion than that which is assigned to the wife as a permanent provision after she has established her right to -a separation, (n) It is, in general, limited to the actual wants of the wife until 'the result of the suit in her favor establishes her right to a more liberal allowance, and it will be estimated according to the expense of board and clothing at the place where her rela- tions reside, if she select that as the place of her residence, unless the expense of living there is disproportioned to the property of her husband, (o) The poverty of the husband, though no reason for refusing to order an allowance, is to be considered with the circum- stances in life of the parties, in fixing the amount, (p) Even if he has no property, and depends merely upon his labor for support, he may be compelled to apply a part of his daily earnings to this purpose, {q) Where a separation is decreed, and the wife's conduct is blameless, an allowance equal to what the law gives her on the death of her husband is reasonable, (r) Thus, in a judg- ment for separation on the ground of abandonment, a provision that the wife have the use of one-third of his real estate during her life, and the same proportion of his personal estate abso- lutely, was held to be proper, {s) When the property is not sufficient for the support of all (m) Lawrence vs. Lawrence, 3 Paige, Ch. 2G7 ; Amos vs. Amos, 3 Green, N. J. Ch. 171 ; Turner vs. Turner, 44 Ala. 437. (n) lb. ; Morrell vs. Morrell, 2 Barb. S. C. R. 480. (o) Germond vs. Oermond.i Paige, Ch. f>43 ; Burr vs. Burr, 10 Paige, Ch. 20. (p) Hallork vs. Uallock, 4 How. N. Y. 160. {q) lb. ; Kirhy vs. Kirhy, 1 Paige, Ch. 261 ; Prince vs. Prince, 1 Rich. S. C. Ch. 283 ; see Bailey vs. Bailey, 21 Gratt. Va. 43. (r) Thornherry va. Tfiornherry, 4 Litt. 252 ; Peckford vs. Peckford, 1 Paige, Ch. 274 ; Bnirr vs. Burr, 7 Hill, Ch. 207. («) Fif:7di vs. Fislili, 2 Litt. 337 ; Miller vs. MUler, 6 Johns. Ch. 91 ; Burr vs. Burr, 10 Paij^p, Ch. 20. I SEPARATE MAINTENANCE. 533 Decree for Separate Maintenance. dependent upon it, and the parties have been accustomed to rely upon joint labor for support, the allowance ought not to be so large as to relieve the wife from all necessity for doing anything for her own support, {t) In adjudging the amount of allowance, the husband's estate will be presumed to yield a reasonable income, unless the con- trary be shown, with a sufficient reason for its unproductive- ness ; and the reduction of the husband's estate by gifts cannot be allowed to diminish the wife's alimony, {u) Modijication of allowance. — The allowance in the final decree is subject to modification from time to time, and leave should be given in the decree to apply for such modification as the changing circumstances of the parties may render just, {v) ]^o. 197. Decree for a separate mxiintenance. {Caption^ and title of cause as in No. 79, unte, page 198.) This cause having come on to be heard upon the bill of com- plaint herein, the answer of the defendant thereto, the replica- tion of the complainant to such answer, and the proofs taken in this cause, and the report of the master in chancery filed herein, which said report is hereby approved and confirmed ; and the court having heard the arguments of the counsel for the respective parties, and being fully advised in the premises, doth find that the allegations in the said bill contained are true, as therein stated ; and that the equities of this cause are with the complainant. It is therefore ordered, adjudged and decreed, by the court, that the complainant is entitled to a separate maintenance from the defendant ; and that she be allowed, and that the defend- ant do pay to the complainant, the sum of dollars a year, commencing from the date of the filing of the complainant's bill of complaint herein, to wit, from, etc., and that the said sum be paid in monthly installments of dollars each, pay- able in advance, on the day of each and every month, until the further order of the court ; and it is further ordered, i^) Brown, vs. Brown, 22 Mich. 242. (m) Forrest vs. Forrest, 5 Bosw. 672. (b) Forrest vs. Forrett, 3 Abbott, N. Y. 144 ; Lockridge vs. Lockridge, 2 B. Mocr. 258 ; Rogers vs. Vines, 6 Ired. Eq. 293 ; Wheeler vs. Wlieder, 18 111. 39 ; Waldroa vs. Waldron, 5 P. F. ^niitli, Fa. 281 ; Fisher vs. Fislier, 32 Iowa, 20. 534 SEPARATE MAINTENANCE. Decree for Separate Maintenance. adjudged and decreed, that this decree be and remain a lien on the real estate of the defendant until he shall have given security for its faithful performance, to the satisfaction of the court or to the complainant, and that the defendant pay the costs of this suit ; and in case of default in the payment of the said installments of money as the same become due, or the costs herein, that execution issue thereon ; and tliat either party be at liberty to apply to the court as circumstances may require. See decree for alimony in suits for divorce, Xo. 193, aniCy page 523. \ CHAPTER XXXIV. BILLS TO QUIET TITLE. Section 1. When Propek, and Nature of. 2. Forms of Bills. 3. Form of Decree. SECTION I. WHEN PROPER, AND NATURE OF. The 50tli section of the Chancery Practice Act, of Illinois, in force July 1, 1872, provides, " The court may hear and determine bills to quiet title, and to remove clouds from the title to real estate, whether the lands in controversy are improved or unoccupied, or unim- proved or unoccupied ; and the taking possession of such lands, after the commencement of suit by the party claiming the title or the adverse title, or any one under or through such person or persons, shall not in anywise affect the complainant's right to a final decree upon his bill." («) This is the act of 1869, re-written, (h) Prior to the statute above referred to, it was always held that a bill to quiet title would not lie where the complainant had a remedy at law, or could maintain ejectment, (c) But such bills were proper where the complainant was in posses- sion, {d) accompanied by title, to remove a cloud upon such title, {e) (a) Underwood's Stat. 76. (6) Laws of 111. 1869, p. 356. (c) Alton M. & F. Co. vs. Buckmnster, 13 111. 201 ; Kennedy vs. Northup, 15 111. 148, 152 : Smith vs. McConnell, 17 111. 135. (d) Stout vs. Cook, 37 111. 283 ; Conway vs. Cable, 37 111. 82 ; Morris vs. Eogle,Ti 111.153; Fitts xa. Davis, 42 111. -391 ; McFadden Ys.Worthiugton. 45 111. 363 ; Christie vs. Hale, 46 111. 117 ; Rucker vs. Dooley, 49 111. 378 : Car- roll vs. Sdfford, 3 How. U. S. 459 ; Scott vs. Onderdonk, 14 N. Y.9 ; Hatrhva. Buffalo, 38 N. Y. 276 ; Orten vs. Smith, 18 N. H. 263. (e) Bayerque vs. Cohen, \ McAllister, 113 ; Overman vs. Parker, Hemp. 692; see Collins vs. Collins, 19 Ohio St. K. 468. 536 BILLS TO QUIET TITLE. Nature of, and when Proper. A court of equity has jurisdiction to set aside a title pro- cured by fraud; (/') or to establish an equitable title of the complainant, where the defendant is in possession under a legal title. ((/) A bill to quiet the title to lands, will not lie by one in pos- session, who does not first show some right, legal or equit- able, {h) The jurisdiction of equity to quiet title is intended to reach persons out of possession, who cannot be compelled to defend their right at law. (?') The rule seems to be, in cases of bills to remove clouds upon titles, that where the claim of an adverse party to land is valid upon the face of the instrument, or the proceedings sought to be set aside, and it requires the establishment of extrinsic facts to show the supposed conveyance to be inoperative and void, a court of equity may interfere to set it aside as a cloud upon the real title to the land, and order the same to be delivered up and canceled, (j) A bill in equity which states only a pretended title in the defendant, and prays for relief against it on the ground of an apprehended injury, cannot be maintained, (k) But it need not show that the claim set up by the defendant is one which would he pri?na facie good at law; nor need it set forth the ground upon which the defendant asserts the validity of his title. (1) if) Nelson vs. Rockwell, 14 111. 37o ; Kennedy vs. Northup, lo III. 152. (g) Shay vs. Norton, 48 111. 105, 106, and cases there cited. (h) Stark vs. Starr, 6 Wallace, 402 ; Kings vs. French, 5 Chicago Legal News, 470 ; Hopkins vs. Granger, 52 111. 504 ; West vs. SchneUy, 54 111. 523 ; Hoar vs. Harris, 11 111. 24; Bowles vs. McAllen, 16 111. 30. (i) Barron vs. Bobbins, 22 Mich. 22 ; see King vs. Higgins, 3 Oregon, 406. (J) Reed vs. Tyler, 56 111. 288 ; Hamilton vs. Cummings, 1 Johns. Ch. 517 j Pettit -vs. Shepherd, 5 Paige, Ch. 493 ; Piersnll vs. Elliott, 6 Pet. 95 ; Ward VB. Dewey, 16 N. Y. 519 ; Goidson vs. City of Portland, 1 Deady, 481 ; Fonda vs. Sage, 48 N. Y. 173 ; Mulligan vs. Baring, 3 Daley, N. Y. 75 ; Grooke vs. Andrews, 40 N. Y. 547. (k) Torrent vs. Booming, 22 Mich. 354 (I) Holbrookvs.Winson,2ZW\c\\.?m. BILLS TO QUIET TITLE. 537 Nature of, and when Proper. Where land lias been laid out in town lots, and the occu- pants are threatened with numerous suits, a bill will lie to quiet the title, though each of the complainants may have a legal title, and, therefore, an adequate remedy at law. (m) Under the right conferred by the statute, a bill of peace will lie against a number of parties having distinct claims, to quiet the complainant's title to lands granted by act of congress, (n) Where a written proposition for the sale of lands without consideration and not under seal, was delivered by the owner thereof to another, but which ofl'er of sale w^as not accepted by the latter so as to be binding upon the former, and the vendee afterwards w^rote upon the same an acceptance of the oflFer, and caused the proposal and acceptance to be recorded in the recorder's oflSce of the county in which the land was situated, in violation of a pledge to the contrary, and in fraud of the rights of the vendor, the instrument, as it stood upon the record, was regarded as a cloud upon the title of the latter, which, upon a bill filed for the purpose by the vendor against the vendee and his assignee, who had notice of the facts, a court of chancery would take jurisdiction to remove the cloud upon the title, (o) A bill in equity to quiet title will lie in favor of an occu- pant of part of a house against one who, having entered another part by the complainant's permission, remains there, claiming title to the whole house under a deed alleged by the plaintiff to be a forgery, (j?) Where a grantor in possession asserts that the deed was intended as a mortgacfe, the o:rantee mav maintain a bill to^ quiet title, unless the grantor has the legal title and no inter- vention of equities renders the remedy at law incomplete, {g} Although a sale of a house situated on leased ground, owned and occupied as a homestead, under an execution, confers na (m) Crews vs. Burcham, 1 Black, U. S. 352; see Gage vs. Chapman, 5^. m. 311. (n) Central Pacific R. R. Co. vs. Dyer, 1 Sawyer, 641. {o) Lcrmon vs. Jordan, 56 111. 204. (p) Sullivan vs. Mnnegan, 101 Mass. 447. (g) Shays vs. Norton, 48 111. 100. 538 BILLS TO QUIET TITLE. Nature of, and wlieu Proper. title, still, it being a cloud on the title, equity will take juris- diction to remove the cloud, especially when the purchaser under the execution is in possession, and threatens to remove the house, and thus commit waste. (;•) Where a sheriff, who was interested in a cause, was improp- erly allowed, after his term of office had expired, to amend the return upon the summons therein, so as to obviate an objection as to the jurisdiction, and it appearing he was insolvent, a court of equity had jurisdiction upon a bill filed for that purpose, to relieve the defendant, in the original proceeding, from the effect of the amended return — the same, under such circumstances, being fraudulently made, and operating as a cloud upon his title. («) In a bill to quiet title the complainant is not bound to show a perfect title as against all the world, {t) Equity will entertain jurisdiction at the instance of the owner in fee of lands to remove a cloud upon his title created by a sale of the premises, and a deed thereto under a decree of foreclosure of a mortgage thereon, although the decree and deed as to him are void, he not having been served with process in the foreclosure suit, and although the land is not chargeable with the mortgage by reason of the same not having been recorded, and because he had no notice of its existence at the time he purchased, (u) Although the levy and sale, and deed in pursuance of them, are void for uncertainty, yet when the defendant claims title under them, a court of chancery will render a decree quieting the title, {v) A conveyance by virtue of a void decree, though of no effect, is still a cloud on the title which a court of equity will take cognizance of and remove, {w) And altliough parties claiming (r) ConkUn vs. Foster, 57 111. 104. («) 0' Conner vs. Wilson, 57 111. 226. (t) liucker vs. Dooley, 49 111. 377. {u) Hodgen vs. Outtery, 58 111. 431. («) Stout vs. Cook, 37 111. 283. {w) Campbell vs. McCanhan, 41 111. 46 ; Johnson vs. Johnson, 30 111. 215 ; Morris vs. Hogle, 37 111. 150. I BILLS TO QUIET TITLE. 539 Nature of, and when Proper. under a void sheriff's deed had no right to the land, yet it was such a cloud on the owner's title, as would warrant a court of equity in entertaining a bill for its removal, (x) On a bill to quiet title, where it is alleged that a sheriff's deed, executed to the defendant, is a cloud upon such title, it will be proper, the facts warranting it, to quiet the title of the complainant by setting aside the sheriff's deed, but the i-ourt should not decree a conveyance by a holder of such deed to the complainant, (y) Before the statute to which we have referred, it was held in Illinois, that a court of equity would not inquire into the validity of a tax sale, merely to determine whether it is a cloud on the legal title, and to enjoin the holder from asserting it. It was held solely in the province of a court of law to try its validity. (2) But it is now held that a party in possession of land may maintain a bill in chanceiy against one out of pos- session, to set aside as invalid, and a cloud upon complainant's title, a sale of the land for taxes and a deed thereunder, (a) In the case of a tax certificate, issued upon an illegal sale of land for taxes, a court of equity will take jurisdiction to annul the sale and cancel the tax certificate, and thus remove a cloud upon the title to the land, {h) In a proper case the court will only set aside the tax sale, upon condition that all the taxes paid by the party claiming under the tax sale should be refunded to him. (c) A court of equity has power to remove a cloud upon the title of a party in possession of land, claiming to be the owner, such cloud arising upon a collector's deed on a sale for taxes, when the taxes had been, in fact, paid before sale, (d) (x) Fitts vs. Davis. 42 111. 391. iy) Rucker vs. Dooley, 49 111. 377. (z) Hamilton vs. Quigley, 46 111. 90 ; Springer vs. Rosette, 47 111. 233. (a) Reed vs. Tyler, 06 111. 288 ; Gage vs. Chapman, Id. 311 ; Gage va. Bil- lings, Id. 268 ; Gage vs. Rohrhack, Id. 262. (b) Gage vs. Chapman, 56 111. 311 ; Reed vs. Tyler, Id. 288 ; see Gage vs. Rohrhack, 56 III. 262 ; Gage vs. Billings, lb. 268. (c) Reed vs. Tyler, 56 111. 288. (d) Gage vs. Billings. 56 111. 268. 540 BILLS TO QUIET TITLE. Form of Bill to Cancel Deed. SECTION II. FORMS OF BILLS. No. 198. Bill to iiuiet title and to cancel detd. To the Honorable , Judge of the Court of tlie County of , in the State of , In Chancery sitting : Your orator, A. B., of, etc., respectfully represents unto your honor, that on, etc., one E. F., late of, etc., now deceased, being the owner in fee simple of the following described real estate, to wit: {Here describe the same,) by his deed of that date, duly executed and acknowledged, conveyed the said described premises to one G. H., of, etc. ; and that afterwards, on, etc., the said G. H., by his deed of that date, duly executed and acknowledged, conveyed the said premises to B. B., late of> etc., but now deceased, the father of your orator. Your orator further represents, that on, etc., the said B. B. departed this life, intestate, leaving your orator his only heir at law, by means whereof your orator became, and now is, the owner in fee of the said premises. Your orator further represents, that up to and at the time ot the conveyance from the said G. H. to the said B. B. the said premises were vacant and unoccu]>ied ; that soon after your orator's father purchased said lands he took possession and commenced the improvement of the same, and the said premises are now in a full state of cultivation, with a valuable dwelling- house, barn, and other improvements thereon ; and that the same have been \n the actual use, occupation, and possession ot the said B. B. and your orator ever since the said purchase by the said B. B. from the said G. H. Your orator further represents, that all the said deeds of con- veyance, except the deed from the said E. F. to the said G. H., were duly recorded in the recorder's office of said county soon after the same were executed and delivered ; that the said deed of conveyance fl-om the said E. F, to the said G. H., by some accident or oversight on the part of the said G. H., was not recorded until, etc. ; and that one J. K., the defendant herein- after named, who is a speculator in lands and defective titles, discovered, by some means, that there was no deed on record from the said E. F. deceased, and that there was a link want- ing in the chain of your orator's title to said premises, well knowing that your orator was in the possession of the same, claiming title thereto in fee, on, etc., made application to D. F. BILLS TO QUIET TITLE. 541 Form of Bill to Set Aside Tax Deed. and C. F., the sons and only lieirs at law of the said E. F., deceased, as it is claimed, the said E. F. then having been dead for a long space of time, and, by some means or repre- sentations, procured a quit-claim deed of conveyance from the said D. F. and C. F. as the heirs at law of the said E. F., for the said described premises ; and on, etc., filed the same for record in the recorder's office in said county, and, by reason of his said deed being first of i*ecord, and in order to annoy and vex your orator in the premises, now sets up and claims title to the said lands as against your orator, but refuses to com- mence a suit at law against your orator to try title to the said premises. Your orator further represents, that the said deed of convey- ance of the said D. F. and C. F. to the said J. K., by reason of the same having been first placed on record in the recorder's office of said county, is a cloud upon the title of your orator in said premises, and tends to depreciate the value and sale thereof. Forasmuch, therefore, as your orator is without remedy in the premises, except in a court of equity ; and to the end that the said J. K.. who is made party defendant to this bill, may be required to make full and direct answer to the same, hut jwt vmder oath, the answer under oath being hereby waived / and that the said deed of conveyance from the said D. F. and O. F. to the said J. K., bearing date on, etc., as aforesaid, of the said premises, may be set aside and declared void as against your orator, as a cloud upon the title of your orator ; and that the said deed may be delivered up to be canceled ; and that your orator may have such other and further relief in the premises as equity may require and to your honor shall seem meet. May it please your honor to grant the writ of summons in chancery, directed to the sherift" of the said county of , commanding him that he summon the defendant J. K. to appear before the said court, on the 1st day of the next term thereof, to be held at the court house in , in the county of aforesaid, then and there to answer this bill, etc. No. 199. Bill to quiet title, a/nd to set aside a tax deed. To the Honorable , Judge of the Court of the County of , in the State of , In Chancery sitting: Your orator, A. B., of, etc., respectfully represents unto your honor, that your orator is the owner in fee simple of the following 542 BILLS TO QUIET TITLE. Form of Bill to Set Aside Tax Deed. described real estate, to wit : {Here describe the premises /) that he derived title thereto as follows : {Here set forth the chain of title /) that ever since your orator purchased the said prem- ises as aforesaid, he has been, and is now, in the actual pos- session thereof, and has paid all the taxes assessed thereon as the same became due and pa^^able. Your orator further represents, that for the year 18 — , there was assessed upon the said premises for the state and county taxes for that year, the sum of dollars, which said assess- ment was on, etc., duly paid by your orator to E. P., the col- lector of taxes, in and for the township of , that being the township in which said premises are situated ; as will appear by the tax receipt therefor, ready to be produced, a copy of which is hereto attached, marked " Exhibit A," and is made a part of this bill of complaint. Ycjur orator further represents, that on, etc., one G. H., the county treasurer of said county, hied in the "county clerk's office, of the county aforesaid, a delinquent list, and published notice of application fur judgment, in which said delinquent list and notice the said premises were not included ; and he did not, with the county clerk of said county, correct the said delinquent list, and make the affidavit required by law, on the first day of the term of the county court of said county ; that, notwithstanding the defects and omissions of duty as aforesaid, and that the taxes on the said premises had been duly paid by your orator as aforesaid, the said county treasurer sued for, and on, etc., obtained a judgment and precept in the county court aforesaid against the said premises, and afterwards, on, etc., at a public sale of lands and town lots fpr the taxes due and re- maining unpaid thereon for the year 18 — , as aforesaid, sold the said premises to one R. S., and issued the usual certificate of purchase therefor ; that the said R. S. afterwards, on, etc., assigned his said certificate of purchase to one O. P. ; that afterwards, on, etc., upon a fraudulent and defectit^e affidavit of tlie said O. P., the clerk of the county court of said county, executed a deed of conveyance to the said O. P. ; and that the said O. P. afterwards, on, etc., by his quit-claim deed of that date, conveyed all his right, title and interest in the said prem- ises, to C. I)., of, etc.^ the defendant hereinafter named ; that the said tax deed to the said O. P., and tlie quit-claim deed from the said O. P. to the said C. D., were filed for record in the recorder's office of the said county of , on, etc., and duly recorded in book of deeds, on pages . Your orator further represents, that he had- no notice of the said premises having been so sold, for said taxes, or the execu- BILLS TO QUIET TITLE. 543 Form of Bill to Set Aside Tax Deed. tion of the said certificate of purchase, or the making of the said deeds of conveyance, until, etc. ; and that as soon as he learned thereof, he called upon the said C. D. and exhibited to him your orator's tax receipt as aforesaid, showing that said taxes had been paid by your orator, and the said sale had been erroneously made, and demanded of the said C. D. that he exe- cute a quit-claim deed for said premises to your orator, and thus relieve the title of your orator in the said premises from the cloud cast thereon by the tax sale and deeds as aforesaid, with which reasonable request in that behalf, the said C. D. refused to comply, falsely pretending that the said taxes had not been paid, and that the judgment for taxes, sale and deeds were in every respect regular and valid ; and claimed to have a valid title to said premises, but declined to institute a suit at law against your orator to test the validity of his title to said premises. Your orator further represents, that the said tax deed to the said O. P., and the quit-claim deed from the said O. P. to the said C. D. are clouds upon the title of your orator in the said premises, and tend to depreciate the value thereof, and ought, therefore, to be set aside and declared null and void, and be delivered up to be canceled under the direction of this honor- able court. Forasmuch, therefore, as your orator is without remedy in the premises, except in a court of equity ; and to the end that the said C. D., who is made party defendant to this bill, may be required to make full and direct answer to the same, hut not under oath, the answer under oath heing hereby loaived ^ and that the said judgment against the said premises, the proceed- ings thereon, the tax deed to the said O. P., and the deed from the said O. P. to the defendant as aforesaid, may be set aside and declared void as against your orator, as a cloud upon the title of your orator ; and that the said deeds may be decreed to be delivered up to be canceled ; and that your orator may have such other and further relief in the premises as equity may require and to your honor shall seem meet. May it please your honor, etc. {Pray jprocess as in I^o. 198, ante, page 540.) 544 BILLS TO QUIET TITLE. Form of Bill to Set Aside a Contract. No. 200. Bill to quiet title and to set aside a contract of sale, {e) To the Honorable , Judge of the Court of the County of , in the State of , In Chancery sitting: Your orator, A. B., of, etc., respectfully represents unto your honor, that your orator is seized in fee simple of the following described real estate, to wit : {Here insert description;) that on, etc., one C. D., of, etc., one of the defendants hereinafter named, applied to your orator, and represented that he was the agent of the Rock River College Association, and as such was about to purchase lands in the vicinity of the above described premises, and obtained from your orator a proposition for the sale of the said premises, in the words and figures following, to wit : " Chicago, January 22, 1869. " I will sell to C. D., Sup't Rock River College Association, the {Here describe the premises) for dollars per acre, one fourth cash, balance one, two and three years, with interest at eight per cent. I further agree to wait until May 1, 1869, for first payment, by purchaser giving bond with approved secu- ritv for payment, with interest at eight per cent, as above. A. B." Tour orator further r ^presents, that the said C. D., at the time of the making of such proposition, requested your orator to give him ten days' refusal upon the terms mentioned therein, winch your orator refused to do, but did tell him that if, within the next ten days after that, lie received an offer to purchase the said premises, he would advise the said C. D. of such ofter before selling the same. Your orator further represents, that your orator saw the said C. D. almost daily for the next ten days after the making of the said proposition ; that tlie said C. D. never notified your orator during that time of any acceptance of said proposition ; and that afterwards, on the 30th day of January, 1869, your orator and the said C. D. met, and, by mutual consent, the said proposition was abandoned ; that afterwards, on the Ist day of February, 1869, your orator contracted to sell an undivided half of the said premises to one E. F. ; and after- wards, on the 10th day of Fe])ruary, 1869, your orator bound himself to convey five acres of the said premises to Cook (e) Ln/rmon vs. Jordan, 56 111. 204. I BILLS TO QUFET 'J'lTLE. 545 Form of Bill to Set Aside a Contract. county, for the purposes of a Normal school ; that on the 8th day of the same month, the Park bill passed one branch of the legislature, and was expected to pass the other branch, which ■would greatly enhance the value of said premises ; that after- wards, on the 17th day of February, 1869, the said C. D. applied to your orator and offered to pay him dollars, and take a contract for the sale of the said premises, which •offer your orator declined, -u.d declared the said former pro- posal abandoned. Your orator further represents, that on the 18th day of February, 1869, the said C. D., in order to defraud your orator, and to compel your orator to make sale of said premises to him under said proposition, wrote, under the said proposal, the following words, to wit : " The above proposal accepted, and notice given February 18, 1869. C. D." And afterwards, on the 26th day of March, 1869, caused the said proposal and acc^eptance to be recorded in the recorder's office of Cook county, wherein the said premises were situated. Your orator further represents, that afterwards, the said C. D. assigned the said proposal to one G. H., of, etc., another defendant hereinafter named, who now pretends to hold the same as a valid contract with your orator. Your orator further represents, that the said proposal, with the said acceptance thereunder written, and recorded as afore- said, is a clond upon yonr orator's title in the said premises, and has the effect to greatly depreciate the value thereof, and to prevent your orator from making sale of the same. Forasmuch, therefore, as your orator is without remedy in the premises, except in a court of equity ; and to the end that the said C. D. and G. H., who are made parties defendants to this bill, may be required to make full and direct answer to the same, hut not under oath, the answer binder oath heing herehy waived j and that the said supposed contract may be declared null and void, and as a cloud upon the title of your orator may be removed, and be delivered up to be canceled ; and that your orator may have such other and further relief in the prenn'ses as equity may require, and to your honor shall seem meet. May it please j'our honor, etc. {Pray j^rooess as in No. 198, ante, page 5lO.) 35 646 BILLS TO QUIET TITLK Form of Decree. SECTION II. FORM UK DECKEE. JSo. Wl. DecrM to quiet title and to caned deed. {Ca/ption^ and title of >.utu«e as in No. 79, ante, page 198.) This caiise liaving- come on to be heard upon tlie bill of complaint herein, the answer thereto, the replication of the complainant to such answer, and the proofs taken in said cause, and having been argued by counsel for the respective parties, and the court having duly considered the same, and being fully advised in the premises ; Doth order, adjudge and decree that the said deed of con- veyance from the said D. F. and C. F. to the defendant J. K., bearing date on, etc., of the said premises, to wit: {Here describe the pi'e'mise.s^) and recorded in the recorder's office of the said county of , be and tlie t^ame is hereby set aside and declared null and void, as against the complainant, his heirs and assigns, as a cloud upon the title of the complainant ; and that the defendant J. K. do deliver up the said deed to be canceled by the clerk of this court. It is further ordered, that the defendant pay the costs of this suit, to be taxed by the clerk, and that execution issue therefor. CHAFTEK XXXV. BILLS TO SET ASIDE WILLS. Sectioo 1. Nature of, and When Proper. 2. What Necessary to Cokstitute a Valid Well. 3. Fraud in Procuring Execution of Will. 4. Want of Capacity to Make a Wiii,. 5. Form of Bill. 6. Issue of Facts to be Tried by a Jury. 7. Decree. SECTION I. NATURE OF, AND WHEN PROPER. Parties in interest may contest the validity of a will by a bill in chancery, as well as before the probate court, (a) The 7th section of the statute of wills of Illinois provides, that if any person interested shall, within three years after the probate of a will or codicil in the county court, by his bill in chancery, contest the validity of the same, an issue at law shall be made up, whether the writing produced be the will of the testator or not, which shall be tried by a jury in the circuit court of the county wherein the will or codicil was proven and recorded, according to the practice of courts of chancery in similar cases ; but if no such suit shall be commenced within the time aforesaid, the probate shall be forever binding and conclu- sive on all parties concerned, saving to mi'ants, /"ernes covert, persons absent from the state or non. compos mentis, the like period after the removal of their respective disabilities. And in all such trials by jury the certificate of the oath of the wit- nesses at the time of the first probate .shall be admitted as evidence, and have such weight as the jury shall think it may deserve. (o) Duncan vs. Duncan, 23 111. 264 ; Flinn vs. Oicen, 58 111. 111. 648 BILLS TO SET ASIDE WILLS. What Necessary to Constitute a Valid Will. The certificate of the oath of the witnesses at the time of tlie first probate of the will \% prima facie evidence of its validity. This testimony raises a presumption of the competency of the testator, which would be valid until disproved by counter testi- mony, and places upon the contestants the burden of showing the incompetency of the testator by proof suflicient to overcome t\i& prima facie case, {h) The burden of proof, in the first instance, is on the party affirming the validity of the will, (c) But when the will has been probated, and an original suit, has been instituted to set it aside, for want of capacity in the testator, or for fraud, the party alleging the incapacity or fraud is put upon the proof ot his allegations, {d) SECTION II. WHAT XECESSART TO CONSTITUTE A VALID WILL. To entitle a will to probate, four things must concur : ji/rst, it must be in writing, and signed by the testator or testatrix, or in his or her presence ; second, it must be attested by two or more credible witnesses ; third, two witnesses must prove that they saw the testator or testatrix sign the will in their presence, or that he or she acknowledged the same to be his or her act and deed ; andi fourth, they must swear that they believe the testator or testatrix to be of sound mind and memory at the time of signing and acknowledging the same, {e) The statute does not require that the attesting witnesses to a will should be in the presence of each other when they sign it- (/) (b) Riggs \s.WUt07i, 13 111. 15 ; Potter vs. Potte/r. 41 111. 80 ; Holloway ■va. Galloway. 51 111. 159. (c) Tingley vs. Coiogill, 48 Mo. 291 ; Renn vs. Lamon, 33 Texas, 760. (d) Renn vs. Lamon, 33 Texas, 760 ; Roe vs. Taylor, 45 111. 485. (e) Dickie vs. Ca/rter, 42 111. 376; but see Allison vs. Allen, 46 III. 61. (/) FHnn vs. Ovoen, 58 111. 111. BILLS TO SET ASIDE WILLS. 549 Fraud in Procuring Execution of a Will. SECTION III. FRAUD IN PROCURING EXECUTION OF A WILL, In the absence of fraud or contrivance shown to induce a party of sound mind to make a will in a particular way, it will be valid ; if all is fair, and the result of honest argument and persuasion, or of such influence as one may properly obtain over another, the will must stand, {g) A testator of sound mind may make such linal disposition of his estate by will as he may choose, subject to the statutory rights of his widow, if he leave one. (A) Any influence which induces a testator to make a disposition of property which he does not desire and intend, notwithstand- ing he is not controlled by any act of force, coercion, or per- suasion put forth at the time of signing, is such undue influence as will avoid a will, {i) If the jury is satislied from the evidence, taken as a whole, that the will would not have been executed by the testator, but for the influence exercised over him by the devisee, thev should find that the will was procured by undue influence, and was not his last will, {j) Whenever a person, under circumstances which enable him to exercise a strong influence over the mind of a testator, such as great age, or a confidential relation, procures such testator to make a will in his favor, the burden of proof is upon such person to show that no undue influence was exercised ; but the {g) Dickie vs. Carter, 42 111. 376 ; Brownfield vs. Brownfield, 43 111. 147 ; Carmichael vs. Reed, 45 111. 108; Small vs. Allen, 8 Term, R. 147 ; Tingley vs. Coicgill, 48 Mo. 291 ; Small vs. Small, 4 Greenl. 220 ; see Keinpsey vs. Ma- ginnis, 2 Mich. N. P. 49. (h) Heuser vs. Harris. 42 111. 425 ; Browujield vs. Brownfidd, 43 111. 147 ; Rhoads vs. RJioads, lb. 239 ; Carmichael vs. Reed, 45 111. 108. (i) Forney vs. Ferrell, 4 W. Va. 729, and cases there cited. (j) Harvey vs. Sulle/is, 46 Mo. 147. 550 BILLS TO SET ASIDE WILLS. Want of Capacity to Make a Will. testator acted volimtarily and with a full understanding of what he was doing, {k) SECTION IV. WANT OF CAPACITT TO MAKE A WILL. A Avill, the provisions of which are attributable to partial insanity, is invalid. But the law presumes the sanity of the testator. {I) What constitutes the want of a sound disposing mind and memory is incapable of a definition suited to all cases. Each case, therefore, must be determined by its own circum- stances, (m) Great age is not of itself an incapacity, (n) Nor is the unreasonableness of a will of itself intrinsic proof of the want of a disposing mind, (o) Nor do long continued habits of drunkenness raise the presumption of imcompetency to make a will, {p) The omission of the name of a child in a last will does not, of itself, prove that the testator was incapacitated ; nor will such omission destroy its validity, [q) (k) Boyd vs. Boyd, 66 Penn. St. R. 283 ; Hartey vs. Sullens, 46 Mo. 147 ; Taylor vs. Taylor, 8 How. U. S. 183 ; Van Horn vs. Keenan, 28 111. 452 : see Sloeum vs. Marshall, Wash. C. C. 400; Jenkins vs. Pye, 12 Pet. 241 ; Lind- Sfiy vs. Lindsay, 50 111. 81. (I) Cotton vs. Vlmer, 45 Ala. 378 ; see Turner vs. Hand, 3 Wall. Jr. 88 ; Matter of HutcMns, 7 Phil. Pa. R. 69 ; Chandler vs. Barrett, 21 La. An. 58 ; Pnryear vs. Reese, 6 ('oldw. Tenn. 21 ; Sloan vs. Maxwell, 2 Green, Ch. 5.53. (m) T/iompson vs. Kyner, 65 Penn. St. 368. (?i) Collins vs. Townley, 21 N. .1. Eq. 353 ; Clearwater vs. Kimler, 43 HI. 272. (o) Miinday vs. Taylor, 7 Bush, Ky. 491 ; see Burch vs. Brown, 46 Mo. 441. , {p) Gardner vs. Gardner, 22 Wend. 526 ; Whitennck vs. Stryker, 1 Green, Ch. 8. iq) Snow vs. Benton, 28 111. 306. BILLS TO SET ASIDE WILLS 551 Form of. SECTION V. FOltM OK BILL. No. W°2. Bill by h^nrs at laxo to set aside a will. To the Honorable , Judge of the ■ Court of the County of , in the State of , In Chancery sitting: Your oratrix, A. B,, and jour orator, B. B., the husband of the said A. B., of, etc., respectfully represents unto your honor, that one C. D., the father of your oratrix, A. B.. late of, etc., but now deceased, on, etc., executed a certain ins:truiuent in writing purporting to be his last will and testament ; and after- wards, on, etc., departed this life, leaving the following named persons, besides your oratrix, his heirs at law, and legal repre- sentatives, to wit: E. D., his widow, F. D., his son, G. H., his daughter, late G. D., since intermarried with L. H., of, etc., H. D. and J. D., infant children of O. D., deceased, late son of the said C. D.. deceased, the defendants hereinafter named. And your oratrix and orator further represent, that the said C. D., in and by the said instrument of writing, so purporting to be his last will and testament, professedly bequeaths all his estate, both real and personal, as follows, that is to say : To the said E. D., his widoAv, etc. etc. ; to the said F. D., his son, all, etc. ; and to all the other of his children and gi-andchildren nothing whatever, as will more fully appear from the said instrument in writing, when produced in court, and from a copy of the same which is hereto attached, marked ''Exhibit A," and is made a part of this bill. Your oratrix and orator further represent, that on, etc., the said instrument in writing, purporting to be the last will and testament of the said C. D., was exhibited to the court of the county of , for probate, and the same was tlien and there probated, and letters testamentary thereon were granted to one W. P., the person named in the said instrument of writing, and one of the defendants hereinafter named, to act as executor thereof; and the said W. P. then and there took upon himself the burden of sole executor of tlie said supposed will of the said C. D., deceased. Your oratrix and orator further represent, that the said C D., at the time of executing the said instrument in writing, purporting to be his last will and testament, was not of sound 562 BILLS TO SET ASIDE WILLS. Form of. mind and memory ; but, on the contrary, was in his dotage, and his mind and memory was so impaired as to render him wholly incapable of making any just and proper distribution of his estate. Your oratrix and orator further represent, that the defendants E. D. and F. D., the only legatees in the said pretended will, used and exercised many undue arts and fraudulent practices, and resorted to falsehood- and misrepresentation to induce the said C. D. to execute said instrument of writing, and the said C. D.» in executing the same, was, in fact, under improper restraint and undue influence from the said arts and fraudulent practices of the defendants E. D. and F. D. And your oratrix and orator particularly represent, that the defendants E. D. and F. D., in order to induce the said C. D. to execute the said instrument in writing, did, etc. {Here set forth any particular acts resorted to to ohtain the execution of the vnll.) Your oratrix and orator further represent, that the said H. D. and J. D., children of the said O. D. deceased, are infants under the age of years, and have no legal guardian, and therefore a guardian ad litem, should be appointed by the court, to appear for and represent the interests of the said minor defendants. Forasmuch, therefore, as your oratrix and orator are without remedy in the premises, except in a court of equity, and to the end tliat the said E. D., F. D., G. H., L. H., H. D., J. D. and W. P., executor of the last will and testament of C. D. deceased,^ who are made parties defendants to this bill, may be required to make full and direct answer to the same, hut not tinder oathy the answer under oath hehig hereby waived ; that a guardian ad litem may be appointed for the court by the defendants H. D. and J. D., infants ; that the said instrument in writing and the probate thereof may be set aside and declared null and void, and not the last will and testament of the said C. D. deceased, and the estate of the said C. D. distributed among his heirs according to law ; and that your oratrix and orator may have such other and further relief in the premises as equity may require and to your honor shall seem meet. ^lay it please your honor to grant the writ of summons in chancery, directed to the sheritf of the said county of , commanding him that he summon the defendants E. D., F. D., G. IL, L. H., H. D., J. D. and W. P., executor of the last will and testament of the said C. D. deceased, to appear before the said court on the first day of the next term thereof, to be held at the court house in , in the county of albresaid, tlien and there to answer this bill, etc. Sol. for Complain^ints. BILLS TO SET ASIDE WILLS. 553 IsBue of Fact to be Tried by a Jury — Decree, etc. SECTION VI ISSUE OF FACTS TO BE TRIED BY A JTJKY. The Statute, as we have seen, requires an issue at law to be made up, wliether the writing produced be the will of the tes- tator or not, which shall be tried by a jury in the circuit court of the county wherein the will or codicil was proven and re- corded, according to the practice of courts of chancery in similar cases, (r) No. 203. Order directing an issue of fact to le tried hy a jury as to the validity of a loill. {Caption., and title of cause as in No. 79, ante, page 198.) This cause came on to be heard upon the pleadings filed, and the issues made up by the pleadings. It is ordered that the following issues of fact be made and tried by a jury, to wit : 1. Was the writing read in evidence, purporting to be the last will and testament of E. F., deceased, the last will and testa- ment of the said E. F. or not. 2. Was the said E. F., at the time of the execution and attestation of the said writing read in evidence, purporting to be the last will and testament of the said E. F., of sound mind and memory. 3. W^as, etc. {Here insert any other issue of fact raised hy the pUadings.) SECTION VII. DECREE. No. 201^. Decree setting aside a will, etc. {Captinii, and title of cause as in No. 79, ante, page 198.) This cause having come on to be heard upon the bill of com- plaint herein, the answer of the defendants thereto, and the replication of the complainant to such answer; and the court (r) See Hiibbard vs. Hubbard, 6 Mass. 399 ; Brooks vs. Barrett, 7 Pick. 98; Rigg vs. Wilton, 13 111.15; Myatt vs.Walker.U 111.485; Pankey vs. Raum,^\ 111. 88. 554 BILLS TO SET ASIDE WILLS. Decree. having heretofore directed an issue at law to be made up, whether the writing referred to in the pleadings, and purport- ing to be the last will and testament of the said E. F., was the last will and testament of the said E. F. or not ; and a jury, to wit : {Here set forth the name^s of the jurors,) having been duly called, selected and sworn to trv the said issues ; and the said jury having heard the evidence of the respective parties, and the arguments of counsel, in open court, and under the direction of the court; and having found by their verdict, that the said writing was not the last will and testament of the said E. F. ; and that the said E. F., at the time of the execution and attestation of the said writing, was not of sound mind and memory ; and the defendants having interposed a motion in this cause to set aside said verdict and for a new trial ; and the court having heard the grounds and arguments in support thereof, and being fully advised in the premises, overruled the said motion ; It is tlierefore ordered, adjudged and deoi^eed, by the court, that the said instrument in writing, purporting to be the lavSt will and testament of the said E. F., deceased, and the probate of the said will in the county court of said county, and the pro- ceedings thereunder, be and the same are hereby set aside, and be, and the same are hereby declared null and void. It is further ordered, that the defendants pay the costs of this suit, to be taxed by the clerk of this court, and that execution issue therefor. CHAPTER XXXVI. NE EXEAT. Section 1. Nature of, ano whrn Propkr. 2. Bill for. 3. How Obtained, etc. 4. Proceedings upon. SECmON I. NATURE OF, AND WHEN PROPEK. The writ of 7i<3 exeat repyhlica is a procets? issuing out of a court of record to restrain a person from leaving the state. It was originally applied only to great political objects and purposes of state, for the benefit or safety of the realm. In the time of Richard II, a statute was passed prohibiting all persons whatso- ever, excepting lords, great men, merchants and soldiers, ti-om going abroad, {a) It is remarked by Fitzherbert, that, by the common law, every man may go out of the realm at his pleas- ure, without the king's leave ; yet, because every man is bound to defend the king and his realm, therefore the king, at his pleasure, by his writ, may command a man that he go not beyond the sea, or out of the realm without license ; and if he do the contrary, he shall be punished for disobeying the king's command. (J) In the United States it is only applied to civil purposes, in aid of the administration of justice. It is resorted to for the purpose of obtaining equitable bail ; (r for alimony, {h} In case of a ne exeat for a legal demand or debt under the statute, it is an open question whether a writ can properly issue, unless the bill shows that the party has refused to deliver up his estate for the benetit of his creditors, or has been guilty of traud. The 12th section of the 2(' article of the Constitu- tion provides, that " no person shall be imprisoned for debt, unless upon refusal to deliver up his estate for the benetit of his creditors, in such manner as shall be prescribed by law, or in cases where there is strong presumptioii of fraud." Cases may arise in which parties will be required to show in their bill by facts stated and circumstances detailed, that a strong pre- sumption exists that the party against whom the writ is pro- posed to be issued, has been guilty of fraud, {i) This question has been frequently discussed in the circuits, but never formally decided in the supreme court. In Wisconsin, it was held, that arrest and restraint of liberty upon a writ of ne exeat, was not imprisonment within the meaning of a constitntional prohibition on the subject, {j ) (g) Statute of 1874, not yet published. (h) Denton vs. Denton, 1 Johns. Ch. 441 ; Bend vs. Reml, 1 Ch. Ca. 115; Dawson vs. Daicson, 7 Ves. 173; see PratTier vs. Pratlier, 4 Dessau. 33; Hammond vs. Hammond, 1 Clark, .551 ; see Denn vs. Smith, 23 Wis. 483. (t) Et parte Smith, 16 111. 347 ; Parker vs. Folleruibee, 45 111. 473 ; West vs. Wnlktr, 6 Blackf. 420 ; Broitn vs. Haff, 5 Paige, Ch. 235. ij) Dean vs. Smith. 23 Wis. 483. 668 NE EXEAT. Form of Bill, ISECTION II. BILL FOR. Mo. 206. Bill f 01' ue exeat republica. To the Honorable , Judge of the Court of the County of , in the State of , In Chancery sitting : Your orator, A. B., of, etc., respectfully represents unto your honor, that on, etc., one C. D., being indebted to your orator in about the sum of dollars, your orator instituted a suit against him Itefore L. M., Esq., a justice of the peace, in and for said county, and on, etc., recovered a judgment before said justice against the said C. D., for the sum of dollars, and ^osts of suit ; that on, etc., the said C. D. appealed from such judgment, rendered by the said L. M., as justice of the peace as aforesaid, to the circuit court of said county, and executed an appeal bond to your orator, conditioned according to law, bearing date on, etc., in the penal sum of dollars, with one E. F., as security ; which bond was duly approved by said justice ; as will more fully appear by said appeal bond now on file in the office of the clerk of the circuit court of said county, reference thereto being had ; a copy of which is hereto attached, marked '' Exhibit A," and is made a part of this bill. And your orator further represents unto your honor, that subsequently to the taking of such appeal, viz., on or about the day of, etc., the said E. F. became insolvent and left the state. And vour orator further shows, that the said C. D. has lately threatened and given out that he will speedily leave this state and go to the State of Kansas. Your orator, therefore, charges that the said C. D. is about to remove from this state, taking his property with him ; and that your orator will be left witliout any security whatever for the amount of his said judgment. louj' orator further represents unto your honor, that the said appeal is still pending and undetermined in said circuit court. That the said sum of dollars is justly due your orator; that your orator believes, and so states the facts to be, that the said C. D. took said appeal for mere delay. Forasmuch, therefore, as your orator is without remedy in the premises, except in a court of equity ; and to the end that the said C. I),, who is made party defendant to this bill, may NE EXEAT. 559 How Obtained — By whom Qranted — Bond, etc. be required to make full and perfect answer to tlie same, h^U not utider oath, the anawer under oath heing hereby waiced j and that the defendant may be stayed by the people's writ of r^ exeat republioa from departing out of the jurisdiction of this court ;• and that your orator may have such other and further relief in the premises as equity may requii-e and to your honor shall seem meet. May it please your honor to grant unto your orator the people's writ of ne exeat rejyuhlhM, staying the said C. D. from depai'ting into parts beyond this state, and out of the jurisdic- tion of this court, without leave first had, in pursuance of the statute in such case made and provided. , Sol. far Complainant. A. B. {Add affidavit as follows :) J^o. W6. Affidavit to a hill for ne exeat. State of ) County of p" A. B., of, etc., on oath, states that he is the complainant in the above bill, subscribed by him; that he has heard the same read, and knows the contents thereof; that the allegations therein contained are true in substance and in fact. Subscribed and sworn to, etc. A. B. SECTION III. HOW OBTAINED, ETC. By wJioni granted. — The statute provides that (§ 3.) " The superior court of Cook county, and the circuit courts in term time, and any judge thereof in vacation, shall have power to grant writs of ne exeat. (§ 4.) " When no judge authorized to issue writs of ne exeat is present in the county, or being present, is unable or incapaci- tated to act, a master in chancery in such county may order the issuing of such writs." Hill 01' petition for — Bonds to he given, etc. — The revised BtAtute of Illinois, of 1874-, in relation to ne exeat, provides that, (§ 6.) " No writ of ne exeat shall be granted but upon bill or petition filed, and affidavit to the truth of the allegations 560 KE EXEAT. How Obtained — Order Granting, etc. therein contained. Upon the granting of any such writ, the court, judge or master shall indorse, or cause to be indorsed, upon the bill or petition, in what penalty, bond and security shall be required of the defendant. Said court, judge or mas- ter shall also take, or cause to be taken, of the complainant, before the writ shall issue, bond with good and sufficient surety, in such sum as the court, judge or master shall deem proper, conditioned that the said complainant will prosecute his bill or petition with eifect, and that he will reimburse to the defendant such damages and costs as he shall wrongfully sustain by occasion of the said writ. If any defendant to such writ of ne exeat shall think himself aggrieved, he may bring suit on such bond ; and if, on trial, it shall appear that such writ of ne exeat was prayed for without a just cause, the per- son injured shall recover damages, to be assessed as in other cases on penal bonds." No writ of ne exeat will be granted but upon bill or petition tiled, and affidavit of the truth of the allegations therein con- tained, [h) The affidavit must be positive ; {I) information and belief will not be sufficient, (m) Mere apprehensions of the complainant will not authorize the issuing of the writ, {n) Order directing clerk to issue writ, etc. — The statute provides that, (§ 6.) "When a writ of ne exeat is granted by a judge or master in vacation, he shall direct the clerk of the court to which the writ is to be returnable to issue the sjune. (§ 7.) " All writs of ne exeat shall be returnable into the court out of which they issue." No. ^07. Order of judge granting a writ of ne exeat. Let a writ of ne exeat issue as prayed for in the within bill, returnable to the next term of the court, upon the complainant {k) Mattocks vs. Tremain, 3 Johns. Cb. 75. (I) Thorne vs. Halsey, 7 Johns. Ch. 189 ; Gilbert vs. Volt. Hopk. Ch. 496, (m) Co^odin vs. Crmi, 3 Edw. Ch. 231. (w) Woodward vs. Schatzell, 3 Johns. Ch. 413. NE EXEAT. . 561 Order, etc. — Proceedings Upon, etc. filing a bond in the sum of dollars with E. F. as security, conditioned according to law. The clerk will indorse on said writ that the defendant be required to give bond, with security, in the sum of dollars. No. 208. Order of master in chancery granting a ne exeat hi the ahsence of the judge. It appearing to the undersigned that the honorable J. K., judge of the circuit court, presiding in said county, is absent from the county, it is ordered that the clerk of said court issue a writ of ne exeat, as prayed for in the within bill, returnable to the next term of said court, upon the complainant filing bond in the sum of dollars, with E. F. as security, con- ditioned according to law. The clerk will indorse on said writ that the defendant be required to give bond, with security, in the sum of dollars. SECTION IV. PROCEEDINGS UPON. The writ — Defendants hond^etc. — The statute directs that, (§ 8.) " The writ of 7ie exeat shall contain a summons for the defendant to appear in the proper court, and answer the petition or bill, and upon the writ being served upon the said defendant, he shall give bond, with surety, in the sum indorsed on such writ, conditioned that he will not depart the state with- out leave of said court, and that he will render himself in exe- cution to answer any judgment or decree which the said court may render against him ; and in default of giving such security, he may be committed to jail, as in other cases, for the want of bail. No temporary departure fi'om the state shall be consid- ered as a breach of the condition of the said bond, if he shall return before personal appearance shall be necessary to answer or perform any judgment, order or decree of said court.'' Surety may surrender ^principal. — The statute provides that, (§ 9.) " The surety in any bond for the defendant, as afore- said may, at any time before the said bond shall be forfeited, 36 562 NE EXEAT. Proceedings Upon, etc. Eurrender the said defendant, in exoneration of liimself, in the same manner that bail may surrender their principal, and obtain the same discharge." Proceedings in court. — The statute provides that, (§ 10.) " On the return of the writ of ne exeat, if the same shall have been duly served, the court shall proceed therein as in other cases in chancery, if the time of performance of the duty or obligation of the defendant has expired ; if not, then the proceedings shall be stayed until it has expired." Quashing writ, etc. — It is provided by the statute, that, (§ 11.) " Nothing contained in the preceding section shall prevent the court from proceeding at any time to determine whether the writ ought not to be quashed or set aside." 1 CHAPTEE XXXVIl. BILLS TO RESTRAIN WASTE. Section 1. Nature of, and when Proper. 2. Form of Bill. SECTION I. NATURE OF, AND WHEN PROPER. Courts of equity will interfere to restrain waste by persons having limited interests in property, on the mere ground of the common law rights of the parties, and the difficulty of obtain- ing the immediate preservation of the property from destruc- tion or irreparable injury, by the process of the common law. {a) There are many cases where a person is punishable at law for committing waste, and yet a court of law will enjoin him, as, where there is a tenant for life, remainder for life, remainder in fee, the tenant for life will be enjoined from committing waste. (5) So, a landlord may have an injunction to stay waste against an under-lessee, (c) So, an injunction may be obtained against a tenant from year to year, after notice to quit, to re- strain him from removing the crops, etc., according to the usual course of husbandry, {d) And an injunction may be obtained against a lessee, to prevent him from making material alterations in a dwelling-house, {e) An injunction to restrain waste lies in cases where the ag- grieved party has equitable rights only ; Thus, for instance, in (a) 2 Story's Eq. Juris. § 912. [h) 2 Story's Eq. Juris. § 913 ; Powys vs. Blagrave, 27 Eng. Law & Eq. R. 568 ; see Abraham vs. Bubb, 2 Freem. Ch. 53 ; Oarth vs. Cotton, 1 Dick. 185, 205, 208 ; Eden on Inj. ch. 9, pp. 162, 163 ; Davis vs. Leo, 6 Ves. 787. (c) Farrant vs. Lovell, 3 Atk. 723 ; S. G. Ambler, 105. (d) Pratt vs. Brett, 2 Mad. 62 ; Onslow vs. , 16 Ves. 178. («) Douglas vs.Wiggins, 1 Johns. Ch. 435 ; 2 Story's Eq. Juris. § 913. 664 BILLS TO KESTRAIN WASTE. Nature of, and when Proper. cases of mortgages, if the mortgagor or mortgagee in posses- sion commits waste, or threatens to commit it, an injunction will lie. (/) Equitable waste is defined to consist of such acts as are not considered waste at law, being consistent with the legal rights of the party committing them, but which are deemed waste in equity on account of their manifest injury to the inherit- ance, {g) The remedy by injunction to restrain waste being to prevent a known and certain injury, is applicable to every species of waste. (A) And if the tenant for life commits waste mali- ciously, he will be enjoined, even though he had the power to do the acts complained of. (i) And the fact that the power is being exercised in an unreasonable manner and against con- science is sufficient to warrant the interference, (j) So, too, the assignee of the tenant for life without impeachment of waste, will be restrained, {k) The general rule is, that everything is waste which occasions a permanent injury to the inheritance ; but it has been said that the situation of this country requires an application of the rule different from that which might be proper in England, (l) A threat to commit waste is sufficient to ground an injunc- tion upon ; (m) but the mere apprehension of waste intended is not sufficient where the defendant denies any intention, (n) Where the title is doubtful or disputed, as between devisee (/) Farrnnt vs. Lovell, 3 Atk. 723 ; Phoenix vs. Clark, 2 Halst. Ch. 447 ; Eden on Inj. ch. 9, pp. 165, 166 ; Brady vs. Waldron, 2 Johns. Ch. 148 ; 3 Story's Eq. Juris. § 710, a, 914. (^r) Story's Eq. Juris, j; 915 ; High on Inj. § 432. {h) Hawley vs. Cloices, 2 Johns. Ch. 122. (z) Abraham vs. Bubb, 2 Freem. Ch. 53 ; see Vane vs. Barnard, 1 Salk. 161 ; Clement vs. Wheeler, 25 N. H. 360 ; Packington vs. Packington, 3 Atk. 215. (j) Aston vs. Aston, 1 Ves. 264 ; Marker vs. Marker, 9 Hare, 1. (k) Clement vs. Wheeler, 25 N. H. 361. (0 Keeler vs. Eastman, 11 Vt. 293 ; Findlay vs. Smith, 6 Munf. 134. (m) London ys. Warjield, 5 J. J. Marsh. 196 ; Livingston vs. Reynolds, 26 Wend. 115 ; Gibson vs. Smith, 2 Atk. 183. (n) 7 Ves. 309 ; see Coffin vs. Coffin, Jac. R. 70. BILLS TO RESTEAIN WASTE. 565 Nature of, and when Proper. and heir at law, or otherwise, an injunction will not be granted. (urn vs. Tyler, 41 111. 354; Baxter vs. UuUhings, 49 111. 116. (u) Burkhart vs. Btmff, 24 111. 532. 580 MECHANIC'S LIEN. Contract on which it is Founded — Discharge of Lien. is notliing showing a different intention, a jury would be war- ranted in finding that they wei-e furnished to be used in such building, (v) The law implies a contract to pay for the work when it shall be done, if other terms are not specified, (w) Owner of land failing to comply with co7it?'aet. — The statute provides that, (§ 11.) " When the owner of the land shall have failed to perform his part of the contract, and by reason thereof the other party shall, without his own default, have been prevented from performing his part, he shall be entitled to a reasonable com- pensation for as much thereof as he has performed, in proportion to the price stipulated for the whole, and the court shall adjust his claim accordingly." Materials furnished contractors. — Where a party contracts to build a house, and other parties furnish materials, which are used in the building, on the credit of the contractor, the material men have no lien on the building for materials so furnished, (a?) SECTION IV. DISCHARGE OF LIEN. A note, unless taken in payment absolutely, will not dis- charge a lien, {y) although it bears interest, (s) But where a note of a firm is taken in satisfaction for work and materials furnished to one of the partners, and the settlement is made in accordance with the usual mode of doing business between the parties, and the property against which the lien is claimed has been sold on a trust deed, a mechanic's lien cannot afterwards be sustained against the premises for said work and mate- rials, (a) (v) Power vs. McOord, 36 111. 214; Martin vs. Eversal, lb. 222. {id) Claycomh vs. Cecil, 27 111. 497. (a;) Wetherill vs. OMendorf, 61 111. 283. (y) Van Court vs. Bushnell, 21 111. 626. (2) Brady vs. Anderson, 24 111. 113 ; see Cowle vs. Varnum, 37 111. 181. (a) Benneson vs. Thayer, 23 111. 374; see Croskey vs. Corey, 48 111. 442. MECHANIC'S LIEN. 581 Limitation of Lien, etc. If it appears that a petitioner has taken other security, either on property or of persons, to satisfy him for his labor and materials, the statutory lien will be discharged. (5) But an agreement to extend the time of payment beyond a year, pro- vided a mortgage should be given, will not defeat a mechanic's lien if the mortgage should not be executed. The giving of the mortgage in such case is a condition precedent, (c) A party does not waive his right to enforce a mechanic's lien by commencing a suit in attachment, as they are concurrent remedies, {d) And the pending of a proceeding for mechanic's lieu cannot be pleaded in abatement of an action to recover the value of the labor and materials, {e) SECTION V. LIMITATION or LIEN. As against owner. — It was held, under the law of 1839, that there was, under the law, no limitation in time upon the right of the creditor to enforce his lien against the debtor. (/) And there is no change in that respect in the present statute. As against creditors and other incumhrances. — The statute provides that, (§ 28.) " No creditor shall be allowed to enforce the lien created under the foregoing provisions, as against or to the prejudice of any other creditor or any incumbrance, unless suit be instituted to enforce such lien within six months after the last payment for labor or materials shall have become due and payable." {g) The provision of the statute, that if the mechanic or ma- terial man fails to assert his rights within six months after the (6) Kimey vs. Thomas, 28 111. 503 ; see Conover vs. Warren, 1 Gilm. 501 ; Groskey vs. Corey, 48 111. 444 ; Gardner vs. Hall, 29 111. 277. (c) Gardner vs. Hall, 29 111. 277. (rf) West vs. Fleming, 18 111. 248. (<•) Delahay vs. Clement, 3 Scam. 201. (/) Garrett vs. Stevenson, 3 Uilm. 2G1. ig) Shaeffer \s.Weed, 3 Gilm. 515 ; Garrett vp. Stevenson, lb. 2G3 : Tur ney vs. Saunders, 4 Scam. 527. 582 MECHANIC'S LIEN. Incumbrances and other Liens, etc. last payment shall have become due under his contract, the lien created by the statute shall not prevail against the rights of creditors of the party with whom the contract was made, is for the benefit of the creditors, and has no application as between the mechanic or material-man and the principal debtor, {h) SECTION VI. INCUMBRANCES AND OTHER LIENS. Prior incumfjrances. — A mechanic's lien takes precedence of prior incumbrances to the extent of the improvements made under such contract. (^) An incumbrancer anterior to the mechanic's lien looks to the premises as they were at the time of his incumbrance for the satisfaction of his debt, and the mechanic or material-man to the additions for his, unless the proceeds will pay both, {j) The statute of 1874 provides that, • (§ 17.) " No incumbrance upon land created before or after the making of a contract under the provisions of this act shall operate upon the building erected or materials furnished until the lien in favor of the person doing the work or furnishing the materials shall have been satisfied ; and upon questions arising between previous incumbrances and creditors, the pre- vious incumbrance shall be preferred to the extent of the value of the land at the time of making the contract, and the court shall ascertain, by jury or otherwise, as the case may require, what proportion of the proceeds of any sale shall be paid to the several parties in interest." Ride for adjusting conflicting claims. — The rule for the ad- justment of the different rights of parties holding separate liens upon property which is sought to be subjected to the payment of {K) Van Pelt vs. Dunford, 58 111. 145. (i) Shaeffer vs.Weed, 3 Gilm. 511 ; Raymond vs. Ehring, 26 111. 343. (j) Smith vs. Moore, 26 111. 392 ; Brown vs. Moore, lb. 421 ; Croskey vs. N. W. Manvf. Co. 48 111. 481 ; Howett vs. Selby, 54 111. 151 ; Raymond vs. Emvg, 26 111. 329 ; Gaty vs. Casey, 15 III. 190 ; Lomax vs. Dore, 45 111. 380. MECHANIC'S LIEN. 583 Incumbrances and other Liens — Ckjnflicting Liens. a mechanic's lien is this : Neither prior or subsequent incum- brances can operate upon the building erected or the materials furnished to the prejudice of the persons performing the labor or furnishing the materials ; a prior incumbrance shall be pre- ferred to the extent of the value of the land at the time of making the contract for the erection of the building, and he also has a subsequent lien on the building, subject to the first lien of the mechanic, and the mechanic, in like manner, has a prior lien on the building and a subsequent lien on the land. Each may have his debt satislied out of the fund upon which he has a first lien, and if that should be insuflBcient, then the residue out of any surplus of the other fund which might remain after satisfying the prior lien thereon, {k) In order to know what proportion of the proceeds of the sale of the premises should be paid to the prior incumbi-ancer. and upon the mechanic's claim respectively, the court should. by a jury or master, ascertain the separate value of the land and of the building, and direct the distribution, of the pro- ceeds according to the respective rights of the parties as fixed by the foregoing rule. (/) Gonjlicting liens. — The statute provides that, (§ 14.) " Upon questions arising between difierent creditors having liens under this act, no preference shall be given to him whose contract was first made. (§ 15.) " The court shall ascertain the amount due each creditor, and shall direct the application of the proceeds of sales to be made to each in proportion to their several amounts." (m) It is suggested as a better practice to impanel a jury to find the amount due each claimant, as if there were separate pro- ceedings ; but where there are few claimants, and there is no (k) North Presbyterian Church of Chicago vs. Jevne, 32 111. 214 ; ("roskey xs.N.W. Manuf. Co. 48 111. 481; Dingledine \s. Hershman, 53 111. 280; Howett vs. Selby, .54 111. 151. (I) Xorth Presbyterian Church of Chicago vs. Jevne, 32 111. 214 ; Croskey va. N.W. Manuf. Co. 48 111. 481. (m) Power vs. McCord, 36 111. 214 ; Martin vs. Eoenal. lb. 222 ; Croskey vs. Corey, 48 111. 442; see Williams vs. CMpman , 17 111. 42o ; Raymond vs. Earing, 20 111. 329 ; Buchter vs. Dew. 39 111. 40. 584 MECHANIC'S LIEN. Conflicting Liens, etc. complication, no objection is perceived to submitting all the claims to the same jury- ('0 Where claims are not due. — The statute provides that, (§ 16.) "Parties entitled to liens under this act, whose claims are not due or payable at the time of the commencement of suit by any other party, shall be permitted to become parties to the suit, and their claims shall be allowed, subject to a reduc- tion of interest fi-om the date of judgment to the time such claim is due or payable." (o) Parties claiming liens may contest each other'' s rights. — It is provided that, (§ 18.) " Parties claiming may contest each other's rights, as well with respect to amount due, as with respect to their right Lo the benefit of the lien hereby created ; and upon all questions made by parties, the court shall require issues of law or fact to be formed so as to bring about speedy decision thereof." Fraxululent iricumhrarices. — The statute provides that, (§ 19.) " Any incumbrance, whether by mortgage, judgment or otherwise, charged and shown to be fraudulent in respect to creditors, may be set aside by the court, and the premises made subject to the claim of the complainant or petitioner, freed and discharged from such fraudulent incumbrance." Delay in one case not to delay trial in resjyect to others. — It is provided by the statute that, (§ 20.) " In no case shall the want of preparation for trial of one claim delay the trial in respect to others, but trial shall bo had upon issues between such parties as are prepared, without reference to issues between other parties ; and when one credi- tor shall have obtained a decree or judgment for the amount due, the court may order a sale of the premises on which the lien operates, or a part thereof, so as to satisfy the judgment : Provided, that the court may, for good cause shown, delay (n) Power vs. McCord, 36 111. 214. (o) See Kinney vs. Hudaut, 2 Scam. 472. MECHANIC'S LIEN. 585 Sub-Contractor's Lien. making any order of sale or distribution until the rights of all parties in interest are ascertained and settled by the court." SECTION VII. sub-contractor's lien. The statute provides that, (§ 29.) " Every sub-contractor, mechanic, workman or other person, who shall hereafter, in pursuance of the purposes of the original contract between the owner of any lot or piece of ground, or his agent and the original contractor, perform any labor or furnish any materials in building, altering, repairing, beautifying or ornamenting any house or other building or appurtenance thereto, on such lot or on any street or alley, and connected with such building or appurtenances, shall have a lien for the value of such labor and materials upon such house or building and appurtenances, and upon the lot or land upon which the same stands, to the extent of the right, title and in- terest of such owner at the time of making the original con- tract for such house or the improvement ; but the aggregate of all the liens hereby authorized shall not exceed the price stipulated in the original contract between such owner and the original contractor for such improvement. In no case shall the owner be compelled to pay a greater sum for or on account of such house, building or other improvement tlian the price or sum stipulated in said original contract or agreement : Pro- vided^ if it shall appear to the court that the owner and con- tractor fraudulently, and for the purpose of defrauding sub- contractors, fixed an unreasonably low price in the original contract for the erection or reparation of such building, then the court shall ascertain how much of a difference exists between a fair price for the labor or materials used in said building or other improvements, and the sum named in said original con- tract, said difierence shall be considered a part of the contract and be subject to a lien ; but in no case shall the original con- tractor's time or profits be secured by this lien, only so far as the sum named in the original contract or agreement." 586 MECHANIC'S LIEN. Sub-Contractor's Lien — Notice to Owner, etc. Notice to he given to owner. — (§ 30.) " Tlie person perform- ing such labor, or furnishing such materials, shall cause a notice, in writing, to be served on such owner or his agent, substan- tially in the following form : ' To : You are hereby notified that I have been em- ployed by , to {Here state whether to labor or fvrnish material^., and suhstantially the nature of the undertaking or demand) upon your {Jiere state the building^ and where situ- ated., in general terms) ; and that I shall hold the {building^ or as the case ma/y he,) and your interest in the ground liable for the amount that is (or may become) due me on account thereof. [Date] ' [Signature] ' " Copy of contract to he served on owner. — (§ 31.) " If there is a contract in writing between the original contractor and the siib-contractor, a copy of such sub-contract, if the same can be obtained, shall be served with such notice and attached thereto, which notice shall be served within forty days from the com- pletion of such sub-contract, or within forty days after payment should have been made to the person performing such labor or furnishing such materials." Notice to he filed with circuit clerk, etc. — (§ 32.) " In all cases where the owner cannot be found in the county in which said improvement is made, or shall not reside therein, the person furnishing labor or materials shall file said notice in the office of the clerk of the circuit court, who shall enter, in a book to be kept for that purpose, alphabetically, the names of the own- ers, and opposite thereto the names of the pei'sons claiming liens, for which the clerk shall receive a fee of fifty cents. A copy of said notice shall be published in some newspaper printed in said county, for four successive weeks after filing such notice with the clerk as aforesaid. If, however, there is no paper published in said county, then the claimant of the lien shall post notices in four of the most public places in the vicinity of said improvement." Extent of lien. — (§ 33.) " No claim of any sub-contractor, mechanic, workman, or other person, shall be a lien under gection twenty-nine of this act, except so far as the owner may MECHANIC'S LIEN. 587 Sub-Contractor's Lien, etc. be indebted to the contractor at the time of giving such notice, as aforesaid, of such claim, or may become indebted afterward to him as sucli contractor." Owner nnay retain money to pay Hvh-contractor. — (§ S-i.) *' When the owner or his agent is notified, as aforesaid, he may retain from any money due or to become due the original con- tractor, an amount sufficient to pay all demands that are or will become due such sub-contractor, mechanic, workman, or other person so notifying him, and may pay over the same to the persons entitled thereto. In case there is not a sufficient amount due to such original contractor to pay such persons so entitled in full, the same shall be divided and paid to such persons pro rata, in proportion to the amounts due them respectively at the time of such payment. All payments so made shall, as between such owner and contractor, be con- sidered the same as if paid to such original contractor." Statement of persons employed to he furnished theo^nner. — (§ 35.) " The original contractor shall, as often as requested, in writing, by the owner, or lessee, or his agent, make out and give to him a statement of the number of persons in his employ, and sub-contractors, giving their names and the rate of wages or terms of contract, and how much, if anything, is due to them or any of them — which statement shall be made under oath, if required. (§ 36.) " If any contriictor shall fail to furnish such state- ment within five days after demand made, as aforesaid, he shall forfeit to such owner the sum of fifty dollars for every such otfense, which may be recovered in an action of debt, before a justice of the peace." Wlien sub-contractor may enforce li-ni. — (§ 37.) "If the money due to the person giving such notice shall not be paid within ten days after service thereof, as aforesaid, or within ten days after the money shall become due and payable, and any money shall then l^e due from such owner to the original con- tractor, then such person may file his petition and enforce his 588 MECHANIC'S LIEN. Subcontractor's Lien, etc. lien, in the same manner as hereinbefore provided in case of original contractors ; or he may sue the owner and contractor jointly for the amount due him, in any court having jurisdiction of the amount claimed to be due, and a personal judgment may be rendered therein as in other cases," Judgment hef ore justice of the peace. — (§ 38.) "If execution issued on a judgment obtained before a justice of the peace ehall be returned not satisfied, a transcript of such judgment may be taken to the circuit court, and spread upon the records thereof, and execution issued thereon as in other cases." Owner, etc., may file hill, etc. — (§ 39.) "If there are several liens, under section twenty-nine, upon the same premises, and the owner, or any person having such lien, shall fear that there is not a sufficient amount coming to the contractor to pa}' all of such liens, such owner, or any one or more persons having such lien, may file his or their sworn bill or petition in the circuit court of the proper county, stating such fact, and such other facts as may be sufficient to a full understanding of the rights of the parties. The contractor and all persons having liens upon, or who are interested in the premises, so far as the same are known to or can be ascertained by the claimant or petitioner, upon diligent inquiry, shall be made parties. Upon the hearing, the court shall find the amount coming from the owner to the contra' tor, and the amount due to each of the persons having liens ; and in case the amount found to be coming to the con- tractor shall be insufficient to discharge all the liens in full, the am and it was fui-ther stipulated and agreed by the defendant that he would pay your petitioners for such materials, and all neces- earv materials and labor upon said bm'lding, as much as the Barne were reasonably worth ; and that the defendant would pay to your petitioners, as the work progressed, as follows, to wit: {Here insert the /e7^m-^ of pa\jment.\ Your petitioners further represent, that they did, in pursu- ance of the terms of said contract, at once, on the making of MECHANIC'S LIEN. 5U5 Petition for Lien, on Verbal Contract. said contmet, proceed to furnish a large amount of labor and materials for the construction of the said building ; a particular bill and account of all such labor, and materials furnished, and nsed in the construction of the said dwelling-house, is hereto attached, and marked •* Exhibit A..'' and is nuide a part of this petition. Your petitioner further i-cpreseiits, that in said bill of par- ticulars marked "Exhibit A," each and every item of materials furnished, and of the labor performed and l)esto\ved in the erection of said building, is tairly and justly set down, with the date of each respectively, and the price of each item of labor and material is set down opposite the same ; that each and every item, and all the material and lal)or mentioned in said bill, were actually furnished under said contract and used in said building of the defendant, and the same were necessary to complete the said dwelling-house; and the price charged for each article or item is a fair and reasonable one ; that all of the said materials so furnished by your petitioners and put into said building were of excellent quality ; and all the work done by your petitioners in putting up said house was done in a e:ood and workmanlike manner. lour petitioners fiirthei- represent, that the said building was actually erected on said lot, under said contract, and the same constitutes a valuable and permanent improvement on the said premises ; and that the said building was fully com- pleted and accepted by the defendant on or before the, etc., the time stipulated in said contract, as a complete performance by your petitioners of all the said contract, on their part to be performed. Your petitioners further represent, that there now remains due and unpaid to your petitioners from the defendant on said contract the sum of dollars ; which said sum the defendant wholly neglects and refuses to pay, although often rec] nested so to do; by reason whereof your petitioners are entitled to a lien on said premises to secure the payment of the amount so due your petitioners aforesaid. Forasmuch, therefore, as your petitioners are without remedy in the premises, except in a court of equity, and to the end that the said E. F., who is made party defendant to this petition, may be required to make full and direct answer to the same, b^it iwt urtder oath, the ct/nsioer under oath heinunt so- remaining due, but the said C D. has hitherto failed and neg- lected to pay the same or any part thereof. Your petitioner further represents, upon information and be- lief, that E. F, and G. H., of, etc., have or claim, some interests,, (the precise nature of which is unknown to your petitioner,) in the said premises, as purchasers, mortgagees, judgment cred- itors, or otherwise; but such interests, if any there be, have accrued since, and are subject to the lien of your petitioner, by virtue of the statutes of this state in relation to liens. Forasmuch, therefore, as your petitioner is without remedy in the premises, except in a court of equity; and to the end that the said G. D., E. F. and G. H., who are made parties defendants to this petition, may be required to make full and direct ans\yer to the same, hut not under oath, the answer ander oath leing herehy waived ; that your petitioner be allowed to have and 598 MECHANIC'S LIEN. Proceedings upon — Process — Docketing, etc. maintain a lien upon said premises, in accordance with tlie statute in such case made and provided ; and that an account may be taken, under the direction of the court, of the amount due your petitioner, from the said C D., as aforesaid, and that a decree may be rendered in favor of your petitioner for the amount so found due ; and that the said C. D. may be decreed to pay the same, to^etlier with the costs of this proceeding, by a short day to be ti.xed by the court; and that in defamt of such payment the said premises may be sold, as the court shall direct, to satisfy such debt and costs ; that in case of such sale and a failure to redeem therefrom pursuant to law, the de- fendants, and all persons claiming through or under them, or either of them, after the commencement of this proceeding, may be forever barred and foreclosed of all right or equity of redemption of the said premises ; and that your petitioner may have such other and further relief in the premises as equity may require, and to your honor shall seem meet. May it please your honor, etc. {Pray process as in No. ^12, ante, page 59^.) SECTION' IX. PROCEEDINGS UPON. Summons. — The statute provides tliat, (§ 6.) "Upon the filing of such bill or petition, summons shall issue, and service thereof be had. as in suits in chancery." ix) Notice hy puhlwation. — (§ 7.) " When any defendant resides or has gone out of the state, or on due inquiry cannot be found, or is concealed within this state, so that process cannot be served upon him, the complainant or petitioner may cause notice to be given to him in like manner and upon the same conditions as provided \n ^uits in chancery." ly ) Cases to he placed on chnncery docket. — The statute re- quires that, (§ 8.) " Suits instituted under the provisions of this act shall be placed upon the chancery docket, and stand for trial as other suits in chancery." («) Ante, pp. 74-77. [y') Ante, pp. 7T-7H. MECHANIC'S LIEN. 599 Amendments — Anawer. SECTION' X. AMKMUMKNTH. The statute provide.s tliat, (§ 9.) " For the purpose of bringing all parties in interest before the court, the court shall permit amendments to any part ■of the pleadings, and may issue process, make all orders requir- ing parties to appear, and requiring notice to be given, that are ■or may be authorized in proceedings in chancery, and shall have the same power and jurisdiction over the parties and subject ; and the rules of practice and proceedings in such cases shall be the same as in other cases in chancery, except as is ■otherwise provided in this act." (2) SECTION XI. ANSWEK. The statute requires that, (§ 10.) " Defendants shall answer the bill or petition under oath, unless the oath is waived by the complainant or |>eti- tioner, and the plaintiiF shall except or reply to the answer as though the proceeding was in chancery. The answer shall be regarded as the plea of the defendant, and by replication thereto an issue or issues shall be formed, which shall l>e tried by the court, or by a jury under the direction of the court, as the court may direct or the parties agree.'* Where the bill or petition waives the sworn answer, although the answer be sworn to, it cannot be received in evidence, and iias no other or greater weight than an answer not sworn to. [a) (e) AnU, pp. 164-170. (a) (Uarkf vs. Boyle, 51 111 104. 600 MECHANIC'S LIEN. Form of Answer by Owner, Defendant. No. ^lo. Answer of owner defendant to a hill or petition for a mechanic's lien. In tlie Court. C. D. et at. \ Term, 18—. vs. \r In Chancery. A. B. ) The separate answer of C. D., one the defendants to the bill of complaint {m' petition) of A. B., com- plainant, {or petitioner^ This defendant reserving to himself all right of exceptions to the said bill of complaint {or petition), for answer thereto Bays, (*) He admits that he did, about the time mentioned in said bill {or petitian), make a verbal contract with the complainant {or 'petitioned') to build for him a house, and to furnish all the ma- terials and labor necessary to erect the same ; and admits that a part of the terms of said contract are substantially mentioned in said bill {or petition) :, but this defendant denies that said contract is correctly set forth in said Ijill {or petition), but, on the contrary, avers that in said contract it was expressly agreed and contracted that the complainant {or petitioner) should fur- nish only the best quality of lumber and materials for said building, and that all the flooring should be well seasoned^ clear, and free from knots and other imperfections, and should be well laid and blind nailed, and planed off smooth, after being laid, so as to make the same level and smooth. And this defendant avers, that the complainant {or peti- tioner) did not use the best quality of lumber in constructing said house, but did use a very inferior kind of lumber ; and this defendant especially states that the flooring used in said house were not well seasoned, and not clear and free from knots and other imperfections, but, on the contrary thereof, was wholly unseasoned, and was green, and full of knots and other imperfections; and that, by reason thereof, the said floor has shrunk and warped, and become loose and unflt for use ; that the large number of knots in said flooring have become loose and have fallen out, and left holes, and so this defendant says that the complainant has not and did not comply with liis said contract, in that respect. This defendant further answering admits, that soon after the said house appeared to be finished and completed, the com- plainant {or petitioner) came to this defendant and stated that he had completed and finished the said house, and desired this J MECHANIC'S LIEN. fiOl Form of Answer by Owner. defendant to examine and accept the same as fully completed and finished according to the terms of the contra'ct, and this defendant did look at said house, and tiie same appeared to he built and completed in a substantial and workmanlike manner, as, so far as this defendant could then see, the same appeared to be constructed of good material; but this defendant says he could not see, and could not by any means then determine or know whether said flooring was of seasoned or unseasoned lumber. And this defendant avers, that the complainant {or petitimier) then assured this defendant that all the materials in said house were of the best quality, and that all the lumber put in said house was well seasoned and dry ; and this defendant, believ- ing the said representations of the complainant {or jjetitione)'), and acting on the same, did accept the said house from the complainant {or petitioner\ and did shortly thereafter move into and occupy the same with his family. And this defendant further answering avers, that within a few days after he commenced living in said house, and had begun to have tires in the different rooms, so as to dry out and season the said lumber, in said floors, the same began to wai-p and shrink, and did continue to season and wai-]^ and shrink, until many of the boards became loose, and the said floors in the said house, and in all of the same, became shrunk, and warped and loose; and this defendant has been compelled to expend a large sum of money, to wit, the sum of dollars, in laying down new floors in the rooms of said house ; and this defendant avers, that the damage which he has sustained by reason of the said failure of the complainant {or petitioner^ to use good seasoned lumber in said floors, and by reason of the putting in of said green and unseasoned lumber in said floors in said house, greatly exceeds the whole amount which the complainant {or petitioner) claims in his said bill {or petition) to be due to him. {Here set forth any other matter hy way of defense.) And this defendant further answering, denies that the com- plainant {or petitioner) is entitled to the relief or any part thereof, in the said bill {or petition) demanded; and prays the same advantage of this answer as if he had pleaded or demurred to the said bill of complaint {or petition •) and prays to be dismissed with his reasonable costs and charges in this behalf most wrongfully sustained, etc. Sol. for Defendant. C. D. {If oath is not waived, add ajfidacit. No. 58, unte, page IJ^B.) 602 MECHANIC'S LIEN. Forms of Answers, etc. No. S16. Ansvjer to a petition for a mecJianir' s lien, aeUing • up a discharge of lien. (Proceed as in No. ^15, ante, pa^e 600. to tJie asterisk, (*) a/nd then proceed :) This defendant admits that he did make a contract with the petitioner as set forth in his said petition, and that tlie peti- tioner did construct a house substantially as required in said contract ; but this defendant avers that the petitioner is not entitled to a lien on the said premises in any sum whatever; because he says, that after the completion of the said building by the petitioner, and before the commencement of this suit, and on, etc., the petitioner applied to this defendant for a settle- ment of the matters relating to said contract, and upon such settlement and adjustment of accounts, there was found to be due to the petitioner on said contract a balance of dollars ; and the petitioner then required of this petitioner security for the amount so remaining due ; and this defendant did then and there execute and deliver to the petitioner a promissory note of that date, for the said sum of dollai-s, payable in after date ; and then and there, at the request of the peti- tioner, procured one E. F. to sign said note with this defendant as security for said amount, and the said E. F. did sign the same accordingly ; and this defendant avers that the petitioner did then and there accept the said note from tliis defendant in full payment and discharge of the said balance so being and remaining due on said contract as afoi-esaid ; and so this defend- ant says, that the lien of the petitioner, if any he ever had, lias been canceled, waived and fully discharged. And now having fully answered the said petition, this de- fendant prays to be dismissed with his costs and charges in this behalf most wrongfully sustained, etc. Sol. for deferid.ant. G. D. {If oath is not waived, add. affidavit., No. 58, ante, page 14^9.) No. S17. Answer tf defendant setting up a lien fyr materials, etc. {Proceed as in No. 215, ante, page 600, to th-e asterisk, (*) und then proceed :) This defendant answering says, it may be true, for anything this defendant knows to the contrarN", that, etc. [^Here suhstrni- t'iaUy set forth the staiement of the petition er\s duim. ;) but this defendant is an utter stranger to all and every such matters, MECHANIC'S LIEN. 603 Form of Answer. and can neither admit nor deny the same, but calls for strict proof of such matters. This defendant further answering says, that on, etc., the said defendant C. D. was engaged in building a mill on, etc. [Here describe the premises on which the building was erected, ) as in said petition is alleged : and at the same time this defendant was a dealer in lumber, at, etc., and on. etc., the said defend- ant C. D. applied to tliis defendant, and desired this defendant to furnish him a large quantity of lumber to be used in and about the construction of the said mill, and thereupon this defendant did agree with said defendant C. D., that he would furnish him such lumber as he, the said C. D. might, from time to time order, or desire for use in constructing said mill ; and this defendant did afterward, on, etc., and at ditfereut times, furnish To the defendant C. D. divers large quantities of lumber, to be used in constructing said mill on said premises ; and this defend- itnt attaches to this answer, and as a part thereof, a bill of said lumber, so furnished, marked " Exhibit A." which contains a par- ticular description of said lumber, with the dates when the same was furnished, and with the price and value of each item or article of lumber set opposite the same ; and this defendant avers that all the items or articles of lumber in said bill men- tioned, were furnished to the defendant C. D. under the said agreement, at the times specified in said bill, to be used in the construction of said mill : and that each and all of the said items of lumber were actually used in the construction of said mill. And this defendant, further answering, says, that at the time of the selling said lumber to the defendant C. D., there was no agreement as to the price or value of the same, nor was any agreement made as to when the defendant C. I), should pay for the same ; and this defendant avers that he is by law entitled to ask and receive for said lumber as nmch as the same was reasonably worth, and was entitled to receive his pay therefor as soon as said articles were delivered ; and that the last of said articles was delivered on, etc. : and that the whole amount of said bill, to wit, the sum of dollars, was justly due and payable to this defendant from the defendant C. D. on the day last named : and that the same is still due and remains w^holly unpaid. Wherefore, this defendant claims and insists that he is entitled to have a lien on the said premise^s, equal to that of the petitioner or any other person having a Jien thereon for work done or materials furnished. This defendant, therefore, prays that on the hearing of this cause, a decree may be made by the court, giving to this de- fendant a lien upon said premi?^.s for the said sum of 604 MECHANICS LIEN. Form of a Cross-Bill in. doUars ; and that the said sum may be decreed to be paid to thip defendant witliin a short day to be named in the said decree, and that in default of such payment the said premises mav be decreed to be sold, and the proceeds applied accord- ing to the statute in such case made and provided. SECTION XII. CROSS-BILL. No. 218. Cross-bill by a defendant to a bill or petition for a mechanics lien to enfoi'ce lien of defendant. To the Honorable , Judge of the Court of the County of , in the State of Illinois, In Chancery sitting : Your orator, A. B., of, etc., respectfully represents unto your honor, that on, etc, G. D., of, etc., one of the defendants here- inafter named, exhibited in this honorable court his bill of complaint {or petition) against one E. F. and G. H., of, etc., defendants hereinafter named, and your orator, to enforce a mechanic's lien therein described, and thereby praying that, etc. {Here set forth the substance of the prayer j) and your orator being duly served with process, appeared and put in his answer thereto, as by the said bill {or jjetition) and other pro- ceedings in the said cause, now remaining on tile and of record in this honorable court, reference thereto being had, will more fully appear. Your orator further represents, that it is true as stated in said original bill, that the said E. F. named in said bill was, on, etc., engaged in building a house on the premises described in said original lull, to wit : {Here des€nd(ng ^inadpist^d. {Caption, and tiUs of cause an in y^o. 79, ■dntt,jjage 198.) And now this cause coming on to be heard on the complain- ant's bill, and the answer of C. D., one of the defendants, and the replication of the complainant thereto, and the court having heard the evidence in this case, and being fully advised in the premises, doth find that the allegations of the complainant's bill are substantially true ; and that the said defendant C. D. did make a contract with the complainant for the purchase of a quantity of lumber, to be used in the erection of a dwelling on the following described premises, to-wit: {Here descrihe the premises on- which the Imilding ivas erected /) and that the com- plainant did, under said contract, furnish to the defendant C. D. a large quantity of lumber to be used in erecting said house, and that the said lumber was actually delivered on said lot on, etc. And it appearing to the court that there is now due to the complainant from the said defendant C. D., for said lumber, the sum of dollars ; and the court being fully advised in the premises, doth find that the complainant is by law entitled to a lien on said premises fo)- said amount; the court doth therefore order, adjudge and decree, that the said defendant C. D. pay to the complainant A. B. the said sum of dollars within days from filing of this decree, with inter- est on the same from the date of the filing hereof until the same is paid ; and doth lui'ther order that the complainant have a mechanic's lien on said premises with the appurtenances for the said siun of dollars, and that said lien commence and take eftect from, etc. ; and because other claims for me- chanic's lien are now in this cause pending and undetermined, the court will hereafter make such further decree as to equity shall seem fit. No. 2^1. Decree aUowing mechanic's lien wliere there are several liens and. a mortgage to he adjusted. {Caption, and' title of cause as in No. 79, •Ante, page 198.) This cause having come on to be heard upon the original bill of complaint, the answers thereto, and the replications to MECHANIC'S LIEN. 609 Form of Decree. such answers, and the several cross-bills, answers to such cross- bills and replications, and the other pleadings, and proceedings heretofore had in this cause ; and the court having heard the evidence, both documentary and oral, and the report of the master in chancery to wliom this cause was heretofore referred to take the evidence as to the value of the premises mentioned in the several pleadings in this cause, to wit : {Here describe the p'remises on which the Intilding loas erected.,) prior to the making of the improvements referred to in the Y)leadings, and the additional value which said improvements have given tu the said premises ; and the court doth find that, in addition to the liens heretofore decreed in this cause, the said E. F. did furnish to C. D., one of the defendants, a large quantity of brick, to be used in constructing the said building on said premises, and tliat the same were furnished under a contract for that pur])ose. and were to be and were used l)y the defend- ant C. D. in constructing said house on said premises, and that there is due the said E. F. from the defendant C. D. the sum of dollars for the materials so furnished ; and the court doth therefore order, adjudge and decree that the said C. D. do pay the said E. F. the said sum of dollars as herein- after provided, and that the said E. F. have a lien on said premises to secure the same, as the law provides. And the court doth further rind that, in addition to the liens heretofore decreed in this cause, the said G. H. did fur- nish to the defendant C. D. a large quantity of lumber to be used in the erection of said house on the said premises, and that said lumber was furnished under a contract for that purpose, and were to be and were used by the defendant C. D. in con- structing the said house on said premises, and that there is due to the said G. H. from the defendant C. D. the sum of dollars, for the lumber so furnished : and the court doth there- fore order, adjudge and decree, that the defendant C. D. do pay to the said G. H. the said sum of , as hereinafter provided, and that the said G. H. have a lien on the said premises to secure the same, as the law directs. And the court having, heretofore, on. etc.. made a decree in this cause, that the defendant C. D. was indebted to the com- l>lainant A. B. in the sum of dollars, and that the com- plainant have a lien on the said premises to secure the payment thereof; and the court having also, by another decree hereto- fore, on, etc., rendered in this cause, ascertained and decreed that L. M., one of the parties hereto, was the holder of a mort- gage on the said premises, which was a lien on, etc., prior to the time when any of the mechanic's liens mentioned in this 39 610 MECHANIC'S LIEN. Form of Decree. cause commenced to take effect ; and tlie court having heard the arguments of the counsel for the respective parties, and being fully advised in the premises, doth find that the said premises, up to and before the time of the commencement of the making of the said improvements thereon, for which liens in this case are sought to be enforced, was worth dollars ; and that the said buildings and improvements men- tioned in said pleadings, and for the construction of which the several claims for liens in this cause are sought to be enforced, have increased the value of said premises dollars, so that tlie said premises are now worth dollars. The court doth further order, adjudge and decree, that the defendant C. D. do pay the said several sums in this decree, and the several decrees hereinbefore mentioned, within days from this date ; and in case of default in the payment of said sums, or either of them, that then and in that case the master in chancery of this court is ordered to sell said premises at public auction to the highest bidder for cash ; that said sale be made at the front door of the court house in , in the county of aforesaid ; and that the said master give public notice of the time and place and terms of said sale, such a& the law requires in case of sheriff''s sale of land on execution, and that the said master execute to the purchaser or purchaser? at such sale a certificate of purchase for the premises sold, ac- cording to law. It is further ordered, adjudged and decreed, that as to part of the proceeds of said sale, the said L. M., the holder of the said mortgage, shall have a first and prior lien, and that as to the remaining part of the proceeds aforesaid, the said complainant A. B., and the said E. F. and G. H., shall share ^^'o rata to the amount of their several claims, and as tO' the part of the said proceeds of sale, the said A. B., E. F. and G. H. sliall have a pro rata secondary lien of the said L. M., the holder of the said mortgage ; and the said master is ordered, out of the proceeds of said sale, to pay, first, the costs of this proceeding, including his commissions and the expenses of sale, which are adjudged against the defendant C. D., and that the remainder he shall distribute between the said parties as hereinbefore provided ; and should any overplus remain after paying all claims in full, then the said master will pay the same to the defendant C. D., the owner of said lot. The said master will report his doings herein to the court at the next term thereof, to which term this cause is now continued. MECiIANIC'8 LIEN. Gil Costs. SECTION XIV. COSTS. The statute, revised in 1874, provides tliat, (§ 27.) " The cost of proceeding as between creditors claim- ing liens and the person against whom the lien is intended to be enforced, shall abide the event of the suit ; and the costs, as between creditors aforesaid, in contests relative to each other's claim, shall be subject to the order of the court, and the same rule shall prevail in respect to costs growing out of proceedings against and between incumbrances." CHAPTER XL INJDJSXTIONS. An ad to revise the law in relation to injunction. Approved March 25, 1874. In force July 1, 1874. Judges authorized to grant. — (§ 1.) "That the superior court of Cook county, and the circuit courts in term time, and any judge thereof in vacation, shall have power to grant writs of injunction, {a) Master may gra/nt^ when. — (§ 2.) " When no judge author- ized to grant writs of injunction is present in the county, or being present, is unable or incapacitated to act, a master in chancery in such county may order the issuing of such writ. Notice of application. — (^ 3.) ''No court, judge or master sliall grant an injunction without previous notice of the time and place of the application having been given to the defendants to be affected thereby, or such of them as can conveniently be served, unless it shall appear from the bill or affidavit ac- companying the same, that the rights of the complainant will be unduly prejudiced if the injunction is not issued immediately or Avithout such notice. To stay judgments, yihere Jtad. — (^ 4.) '' When an injunction shall l)e granted to stay a suit or judgment at law, the pro- ceeding shall be had in the county where the judgment was obtained, or the suit is pending ; but the writ may be sent in the first instance into any county in this state where the de- fendant resides. Shall operate as a release of ei^rors. — (§ 5.) "Every injunc- tion, when granted, shall operate as a release of all ei'iors in the proceedings at law that are prayed to be enjoined, (h) (a) See Phelps vs. Foster, 18 111. 309 ; Welch vs. Byrns, 38 111. 20. (?>) See McVonnell vs. Ayres, 3 Scam. 210. INJUNCTIONS. 613 Judgments, etc. — Bond. Judgments before justice of the peace. — (§ 6.) " No writ of injunction shall be granted to stay proceedings under a judgment obtained before a justice of the peace for a sum not exceeding twenty dollars, ])esides the costs, (c) As to part of judgment. — (§ 7.) •' Only so much of any judgment at law shall be enjoined as the complainant shall show himself equitably not bound to pay, and so much as shall be sutiicient to cover costs. ((/) Complainant to give bond. — (§ 8.) "'Before an injunction shall issue to enjoin a judgment, the complainant shall give bond to the plaintiff therein, in double the amount of such judgment, with siifficient surety approved by the court, judge or master, conditioned for the payment of all moneys and costs due to the plaintiff in the judgment, and such damages as may be awarded against the complainant in case the injunction is dissolved. If the injunction be dissolved in whole or in part, the complainant shall pay, exclusive of legal interest and costs, such damages as the court shall award, not exceeding ten pei- centum, on such part as may be released from the injunction. (§ 9.) " In all other cases, before an injunction shall issue, the complainant shall give bond in such penalty, and upon such condition and with such security as may be required by the court, judge or master granting or ordering the injunction : Provided., l)ond need not be required when, for good cause shown, the court, judge or master is of opinion that the injunc- tion ought to be granted without bond. Approval of bond. — (^§ 10.) " The bond in any case may be entered into before the clerk of the court from which the writ is to be issued — the court, judge or master granting or order- ing the injunction having first approved the security, or it may be entered into before such court, judge or master. («) (c) See Breekenridge vs. MeCormick, 43 111. 491 ; Wiley vs. Sutherland, 41 111. 25. (d) Duncan vs. Morrison, Breese, 151 ; Holmes vs. Stateler, 57 111. 20!i {€.) See Forni vs. Tesson, 51 111. 393. 614 INJUNCTIONS. Suggestion of Damages, etc. Bond to he filed hefore writ issues. — (§ 11.) "All bonds re- quired by this act shall be tiled with the clerk of the court to which the writ is returnable, before such writ shall issue. Assessment of damages on dissolution. — (§ 12.) " In all cases where an injunction is dissolved by any court of chancery in this state, the court, after dissolving such injunction, and before finally disposing of the suit, upon the party claiming damages by reason of such injunction, suggesting, in writing, the nature and amount thereof, shall hear evidence and assess such damages as the nature of the case may require, and to equity appertain, to the party damnified by such injunction, and may award execution to collect the same : Provided, a failure so to assess damages shall not operate as a bar to an action upon the injunction bond. (/") Contempt in violating. — (§ 13.) " Upon satisfactory proof being made in vacation that an injunction has been violated, the judge granting the same, or the judge of the court from which the writ was issued, may issue an attachment and cause the party violating the injunction to be brought before him. Upon his being brought before the said judge, unless he shall disprove or purge the said contempt, the said judge may, in his discretion, commit him to jail until the sitting of the court in which the said injunction is pending, or take bail for his ap- pearance in the said court at the next term thereof, to answer for the said contempt, and to abide the order of the court thereon, {g) Motion to dissolve in vacation. — (§ 14.) " A defendant may move to dissolve or modify an injunction in vacation, either for (/) ^eeWmkler vs. Winkler, 40 111. 179; Misner vs. Bullard, 43 111. 470; Buck vs. Beekly, 45 111. 100 ; Beauchamp vs. Kankakee Co. 45 111. 274 ; Hart- well vs. Black, 48 111. 301 ; Smith vs. Powell, 50 111. 21 ; Shaffer vs. Sntton, 49 111. 506 ; Collins vs. St. Clair, 51 111. 328 ; Forth vs. Town of Xenia, 54 111. 210 ; Russell vs. Rogers, 56 111. 176 ; Holmes vs. Stateler, 57 111. 209 ; Jevne vs. Osgood, lb. 340 ; Brownficld vs. Brownfield, 58 111. 152 ; Hamiltoii vs. Stuart, 59 111. 330 ; Albright vs. Smith, 6 Chicago Legal News, 247. (g) See The People, etc. vs. Gilmer, 5 Gilm. 242 ; Welsh vs. Byrns, 38 III, 20 ; Crook vs. Tfie People, 16 111. 534. IXJUNCTIONS. 615 Motion to Dissolve, etc. want of equity in the bill or upon the comino; in of the answer, and the judge of the court from which the injunction was issued may hear and determine the motion upon five days' notice of the hearing having been given to the complainant or his solicitor, (h) Hotion to dissolve for want of equity. — (§ 15.) "A motion to dissolve an injunction ma}^ be made at any time upon -answer, or for want of equity on the face of the bill. Motion to he determined on testimony. — (§ 16.) "Upon a motion to dissolve an injunction after answer, the court shall not be bound to take the answer as absolutely true, but shall decide the motion upon the weight of. testimony. (?') AJJidavits upon hearing of motion to dissolve. — (§ 17.) *' The complainant may support his bill, and the defendant may sup- port his answer by affidavits filed with the same, which may be read in evidence on the hearing of the motion to dissolve the injunction. Continuance of motion to dissolve. — (§18.) "If, after a motion is made to dissolve an injunction, the complainant in the bill will satisfy the court by his own affidavit, or that of any disinterested person, that the answer, or any material part thereof (to be specified in such affidavit) is untrue, and tliat he has testimony which will disprove the answer, or such material part thereof, which he can produce at the next term of the court, or at an earlier day, and that he has had no opportunity to procure such testimony since the coming in of the answer, the court may grant a continuance of such motion until the next term, or until such testimony can be procured. Depositions may he read on motion to dissolve. — (§ 19.) " The testimony of witnesses to be used upon such motion, except such as may be contained in the affidavits filed with the bill or answer, shall be depositions in writing, which shall bo (A) ^&^Wangelin vs. Goe, 50 111. 459 ; Titus vs. Mahee, 25 111. 257. (i) See Gray vs. McCance, 11 111. 325. 616 inju:nctions. Appeal, etc. — When granted on Sunday. taken in the same manner as other testimony in eases in cliancery. Depositions may he read on final Jcearing. — (§ 20.) "Depo- sitions taken npon a motion to dissolve an injunction may l)e read in tlie final hearing of the cause. Effect of an ap'peal on injunction. — (§ 21.) ''No appeal from a decree dissolving an injunction shall have the effect to- continue in force the injunction, unless the appeal is prayed at the time of the entering of such decree, and the court allov^ing the same shall so order, or unless the party praying the appeal shall, within ten days after the appeal is allowed, procure from the supreme court, if in session, or a judge thereof if in vaca- tion, an order directing that the appeal shall have the effect to continue such injunction in force ; and no such order shall be granted except for good cause appearing in the record, nor when the bill is dismissed by the complainant. The supreme court, or a judge thereof, may, for good cause, extend the time for procuring such order. Farther hond on continuing of inju7ictio7i. — (§22.) *' The court or judge granting the order for the continuance in force of any such injunction may require, as a condition of granting the same, such further bond and security, to be filed with the clerk of the supreme court, as may be deemed equitable. When granted on Sunday. — (§ 23.) " When an application shall be made on a Sunday for a writ of injunction, and there shall be filed with the bill an affidavit of the complainant, or his, her or their agent or attorney, stating that the benefits of an injunction will be lost or endangered, or irremediable dam- age occasioned unless such writ be immediately issued, and giving the reasons for such statement, then it shall be lawful for any officer who is authorized by the law of this state to grant writs of injunction, if it appears to him from such aflSdavit that the benefits of an injunction will be lost or endangered, or irremediable damage occasioned unless such writ be immediately issued, and if the complainant otherwise lNJUx\CTI0N8. 617 Form of Suggestion of Damages. be entitled to such writ under the law, to grant a writ of injunction on a Sunday ; and it shall be lawful for the clerk to issue, and for the sheriff or coroner to serve such writ of injunction on a Sunday as on any other day, and all affidavits and bonds made and proceedings had in such case shall have the same force and effect as if made or had on any other day."(i) No. '^222. Suggestion of damages on the dissolution of an injunction. In the CV)urt. A.B.I Term, 18— . vs. V In Chancery. C. D. ) And now on this day of , 18 — , conies the defend- ant, by his solicitor, and according to the form of the statute in such case made and provided, suggests to the court here, that by reason of the wrongful suing out of said injunction in tliis cause, this defendant was compelled to, and did, pay out and expend divers sums of money, amounting to the sum of dollars, for the fees and charges of solicitors and counsel, and for other charges and expenses in and about his defense in that behalf; {Any other damages may be here alleged in like man- ner ^) by means of which premises, the defendant has sustained damages to the amount of dollars, and the said damages remain wholly unpaid to the defendant ; wherefore the defend- ant asks that said damages may be assessed to him, against the complainant, in pursuance of said statute. {Jc) , Sol. for Defendant. (j) See Langaber vs. Pontine d: N. W. R. R. Co. Chicago Legal News, 190. {k) See note (/), aiUe, p. 614. CHAPTER XLI. MISCELLANEOUS FORMS. During the preparation of this work Mant of space has been constantly apprehended, and many less important forms were omitted in their proper places. It has been thought advisable to give some of them a place under the head of " miscellaneous forms." JSfo. ^23. Order where defendant appears, or is h'oughi into court hy attachment and admits his contempt, that he put in his answer within a specified time, (a) (Caption, with title of cause as in No. 79, a,nte, page 198.) It appearing to the court that the defendant C. D. being in contempt for not appearing or answering to the bill of com- plaint in this cause, a writ of attachment had issued against him, directed to the sheriff of the county of , returnable forthwith; whereupon the sheriif has returned that he had attached the defendant C. D., and had him in custody before the court ; and the said C. D. now being before the court, and consenting to put in his answer, in this suit, and to pay the costs of his contempt, when duly taxed ; on motion of Mr. , solicitor for the complainant, it is ordered that the said C. D. put in his answer to the bill of complaint within days from the date of this order, or that the complainant may apply to this court for such further order as may be just. No. ^^Jf.. Order for commitment of defendant for disobeying order to put in his answer, (b) {Caption, with title of cause as in No. 79, ante, page 198.) An order having been entered in this cause on the day of , 18 — , requiring the defendant C. D. to put in his an- swer to the bill of complaint within days from the date of said order, or that in default thereof the complainant might {a) See ante, pp. 81-84. (6) See ante, pp. 83-84. MISCELLANEOUS FORMS. 619 Orders. be at liberty to apply to this court for such further order as might be just ; and it appearing to the court that the defendant C. D. has failed to put in his answer as required by said order ; and this court now adjudging the said C D. to have been guilty of the misconduct alleged, and that such misconduct was calcu- lated to, or did actually defeat, impair, impede or prejudice the rights or remedies of the complainant in this cause, it is there- upon, on motion of Mr. , solicitor for the complainant, ordered that the said C. D. be, and he is hereby ordered, to stand committed to the common jail of the county of , there to remain charged upon this contempt until he shall have put in his answer as aforesaid ; unless the court shall see tit sooner to discharge him. And it is further ordered that a warrant issue for that purpose. No. M5. Order in case of contempt, for not ansivering — lohere defendant denies Ms contempt — directing the ffing of interrogatories, etc. (c) ' {Caption, loith title of cause as in No. 79, ante, 2)age 198.) It appearing to the court that the defendant C. D., being in contempt for not appearijig or answering to the bill of coni- Elaint in this cause, a writ of attachment had issued against im, directed to the sheriff of the county of , returnal)le forthioith ; wdiereupon the shei'iff has returned that he had attached the defendant C. D., and had him in custody liefure the court ; and the said C. D. being now before the court, and denying that he is guilty of the misconduct alleged against him; it is ordered that the complainant do within dat/s file, with the clerk of this court, interrogatories specifying the facts and circumstances alleged against the said C. D. : and that he serve a copy thereof on the said C. D, ; and that the said C. D. put in written answers to such interrogatories, upon oath, and file the same within days, after the time when such interrogatories are served on him, in the ofHce of the clerl* of this court" And it is further ordered, that it be referred Xa> the master in chancery of this court, to examine the said C. L)., on oath, upon the said interrogatories ; and to take such tur- ther proofs as either party may produce before him in relatitux to the alleged contempt ; and that he report such answers aiid proofs to this court. And it is further ordered that the said sheriff' detain the defendant in his custody ; and that the saii"^ C. D. attend, from day to day, before this court, until the fut ther order of the court. (c) See ante, pp. 81-84. 6S0 MISCELLANEOUS EORMS. Orders. On a reference of this nature the master is not authorized to receive the ex yarte affidavits of witnesses, unless the order of reference expressly authorizes him to do so. The parties must produce and examine the witnesses before the master : so that they may he cross-examined by the adverse party, {d) No. 226. Order coiimcting defendant of a eontemjyt after his examination ujpon inte7Togatories. {e) {Caption^ and title of cause as in No. 79, ante, page 198.) A writ of attachment having been heretofore issued out of and under the seal of this court, against the defendant C. D.» for his contempt in not answering the complainant^ s bill, di- rected to the sheriff of the county of , and returnable forthwith • and the said sheriff having returned that he had attached the said C. D., and taken his body, and had him in custody before the court ; and the said C. D. having been by virtue of such attachment personally before the court, on the said day of instant ; and denying the alleged con- tempt, it was thereupon ordered that the complainant in this cause should, within days, file in the office of the clerk of this court interrogatories specif)'ing the facts and circum- stances alleged against the said C. D. ; and that he serve a e(»py thereof on the said C. D. ; and that the said C. D. should put in written answers to such interrogatories, upon oath, and file the same within days after the service of such inter- rogatories; and that it should be referred to the master in chancery of this court, to examine the said C. D., on oath, upon such interrogatories, and to take such further proofs as either party might produce before him in relation to the alleged con- tempt ; and it now^ appearing to the court from the report of the said master, and the answers and proofs thereto annexed^ that the said C. D. has committed the contempt with which ho is charged, and this court now adjudging him to have been guilty of the misconduct alleged, and that such misconduct was calculated to, or did, actually defeat, impair, impede or preju- dice the rights of the complainant in this cause ; it is therefore ordered, that a fine of dollars be, and the same is hereby imposed upon the said C. D. for his said misconduct. And it is further ordered, that the said C. D. do pay to the said complain- ant the costs and expenses of the proceedings for such miscon- (d) Gumming vs. Wagoner, 7 Paige, Cb. G03. (c) See ante. pp. 81-84. MISCELLANEOUS FORMS. 621 Orders. duct, and now taxed at the sum of dollars. And it is further ordered, that the said C. D. be, and he is hereby directed to stand committed to the common jail of the county of , there to remain chai-g-ed with this contempt until he shall have fully answered tlte said bill of complaint, and paid such fine and costs ; unless the court shall see fit sooner to discharge him. And that a warrant issue for that purpose. Upon this order a mittimus, or warrant of commitment for contempt in not appearing, will issue. u^o. ^^7. Order to refei^ second or third answer on the old exceptions. {/) {Cajjtion, and title of cause as in JVo. 79, Ante, page 198.) Exceptions having been heretofore taken to the answer of the defendant C. D., and such answer having been reported insufii- cienf in the matters of the first and fourth exceptions, the defendant has put in a second {m^ third) answer to the bill in this cause ; which answer the complainant alleges to be insuffi- cient in the matters of the said first and fourth exceptions : It is therefore ordered that it be referred to the master in chancery of this court, to whom such exceptions were originally referred, to look into the bill of complaint, the answer of the defendant, and the said first and fourth exceptions, and to report whether such second {or third) answer is sufficient in the matters of the exceptions, or not. Wo. ii"^8. Order for sherif avtiny as sergeant-at-arms. {g) yCaption, and title of cause as in No. 79, -Ante., page 198.) The defendant C. D. being in contempt for not appearing and answering to the bill of complaint in this cause, and a com- mission of rebellion having been heretofore issued out of and under the seal of this court, directed to certain connnissioners therein named, commanding them to attach the said C. D. as a rebel and contemner of the law, and to have him before this court, on the day of instant ; and the said commis- sioners having returned that they had made diligent search and inquiry after the said C. D. so as to attach his body by virtue of the said commission, but that notwithstanding all their endeavors they could not meet with him for that purpose, as by such commission and the return thereto appears. It is (/) See ante, pp. 81-84. {g) See ante, p. 85. 65i2 MISCELLANEOUS FORMS. Orders. tliereupon ordered that the sherili' of the county of , now attending this court at its present term, and executing all the powers and duties of a sergeant-at-arms^ do forthwith go and take the said C. D. into his custody, and him safely keep, and hring liim immediately into this court, before the court, to answer for his contempt, and to do and receive what this court shall thereupon further oi'der in the premises. And it is fur- ther ordered that the said sheriif do with all convenient speed certify to this court, under his hand, his doings in the premises. Upon this order a warrant to the sheriff acting as sergeant-at- arrns will issue. No. 229. Order for a sequestration, {h) {Caption, and title of cause as in JV^o 79, suite, page 198.) The defendant being in contempt for not appearing and answering the bill of complaint in this cause, and a warrant having been issued to the sheriif of the county of , attend- ing this court at its, jr/'e^'ent term, and as such, executing all the duties of a sergeant-at-arms, requiring him forthwith to go and take the said C. D. into his custody and bring him into this court to answer for his contempt, in pursuance of an order of this court made on the day of ; and the said sherifl', acting as sergeant-at-arms, having returned that he had made diligent search and inquiry after the said C. D., but that he did so abscond and secrete himself that he could not be found to be apprehended, as by the said warrant and the return thereof appears ; it is therefore ordered that a commission of sequestra- tion do issue against the said C. D., directed to E. F., G. H. and J. K., commissioners, directing .them to sequester the defendant C. p.'s personal estate, and the rents, issues and profits of his real estate, until the defendant 0. D. shall appear to the bill of complaint in this cause, clear his contempt, and this court shall make an order to the contrary. Upon this order being made, a writ of sequestration will issue. JSU). 230. Order of refereiice when defendant does not suhnit to answer exceptions. {Caption, and title of cause as in No. 79, Mite, page 198.) Exceptions for insufficiency having been filed to the answer of the defendant C. I), on the day of last, and the (A) See ante, p. 86. MISCELLANEOUS FORMS. G23 Orders. said C. D. not having submitted to answer said exceptions, it is ordered that it be referred to the master in chancery of this court, to look into said bill and answer of the defendant C. D. and such exceptions, and report whether said exceptions are well taken or not. No. 231. Order for further ansiuer after report of master. {Caption, and title of cause as In No. 79, Rnte, page 198.) The answer of the defendant C. D. having been reported insufficient in the matters of the first and fourth exceptions thereto, by the master in chancery to whom the exceptions of the complainant to such answer were referred, and the report of the said master being approved by the court, against the defendant C. D., it is therefore ordered that the said C. D. put in a further answer to the matters of the said lirst and fourth exceptions within days from this date, and pay the costs of such exceptions. No. -232. Order for an attachment on third answer hei/rCg held insufficient. {Caption, and title of cause as in No. 79, ante, page 198.) The third answer filed by the defendant C. D. having been reported insufficient, on a reference to the master in chancery upon the original exce]:)tions, in the matters of the first and fourth exceptions, and tlie report of said master having been filed and having become absolute, it is ordered that an attach- ment issue against the defendant C. D. No. 233. Order for examination of defendant on interroga- tories, etc., on third answer heing held insufficient. {Cap>tion, and title of cause as in No. 79, ante, page 198.) The third answer of the defendant C. D. having been re- ported insufficient, on a reference to the master upon the origi- nal exceptions, in the matters of the first and fourth exceptions, and the report of the said master having been filed, and having become absolute, an attachment was tliereupon issued against the said C. D., in pursuance of an order of this court rendered on the day of last. And the said C. D., now being personally before the court by virtue of the said attachment, and this court now adjudging the defendant to have been guilty of the misconduct alleged, and that such misconduct was calcu- lated to, or actually did defeat, impair, impede or prejudice the 624 MISCELLANEOUS FOIJMS. Orders. rights or remedies of the complainant in this cause ; it is there- fore ordered tliat the said C. D. be examined upon interroga- tories before the master in chancery of this conrt, to the points wherein liis said third answer is reported insufficient ; and th^t lie stand committed to the connuon jail of the count}- of until he shall have answered such interrogatories to the satis- faction of the said master, and paid the costs incurred by reason of his default, now taxed at dollars; aiid that a warrant issue for that purpose. And it is further ordered, that the sheriff of said county do keep the defendant in his actual "custody until the court shall have made some order in the premises, and that he take the said C. D. before the said master to be exam- ined, at such times as such master shall appoint. Ifo. 234. Order for leave to amend hiU after a plea to part is allowed, {i) {Caption, amd title of cause as in No. 79, ante, page 198.) The plea of the defendant C. D. to the bill of complaint in this cause having been, on argument, allowed as to part of said bill, on motion of Mr. , of counsel for the complainant, it is ordered that the complainant have leave to amend said bill by, etc., {Here stats the manner in vjhich it is to he amended,) upon payment of costs to be taxed. It is further ordered that such amendment be filed with the clerk of this court within days from this date. No. 235. Order of reference to the master, {j) {Proceed as in No. 81, ante, ^'rt^^ 'JiV'^, to the ''■, and con- tmue :) That this cause be, and the same is hereby, referred to the master in chancery of this court, to inquire and state to the court, etc. {Here insert the sid>Ject nut tier of reference f) and for the better discovery of the matter aforesaid, the par- ties respectively are to produce before the said master all deeds, books, papers and Avritings in their possession, custody or power relating thereto, and are to be examined upon oath and interrogatories as the said master shall direct ; and the said master will cause to come before him all such witnesses whose testimony he may deem necessary, and examine them u})on oath and interrogatories touching the matters aforesaid ; and the said master will make his report thereon with all con- (i) See ante, p. 168. (j) See (intt, pp. 182-186. MISCELLANEOUS FORMS. 625 Orders. venient speed; and if any special questions shall arise, the said master is at liberty to state the same to the court. H'o. 236. Order of reference of a plea of former svit pending, [k) {Caption., and title of cause as in No. 79, a.nte, page 198.) On tiling a plea in this cause averring that there is a fornier suit depending in this court for the same matters as are involved in the present suit, it is therefore ordered that it be referred to the master in chancery of this court, to look into the bill and the plea in this cause, and the bill in the said plea alleged to have been exhibited by the complainant against the defendant previous to the commencement of this suit, and into the other pleadings and proceedings therein, and to report whether the said plea is true. No. '237. Order directing plea to stand for an answer. {I) {Caption, and title of cause as in No. 79, ante, page 198.) The plea of the defendant C. D. to the bill of complaint in this cause having heretofore come on to be argued, and counsel for the respective parties having been heard thereupon, it is ordered that the said plea do stand for an answer, with liberty to the complainant to except thereto. No. 238. Order allowing the complainant to dismiss his hill. {Captio7i, and title of coAise as in No. 79, ante, page 198.) The complainant applying to dismiss his bill in this cause, on motion of Mr. , solicitor for the complainant, it is ordered that leave to dismiss the same be granted accordingly, on the complainant paying to the defendant his costs in this 6uit, to be taxed. No. 239. Order to pay money into court, {m) {Caption, and title of cause as in No. 79, ante, page 198.) On reading and filing the bill and answer in this cause, and on motion of Mr. , solicitor for the complainant, and on hear- ing Mr. , solicitor for the defendant, in opposition to said {k) See ante, p. 122. (I) See ante, p. 130. (to) See ante, p. 106. ., 626 MISCELLANEOUS FOKMS. Orders. motion, it is ordered, that the defendant C. D. do, within days from the date of this order, pay into the liands of the clerk of this court, in trust in this cause, the sum of dol- lars, admitted by the answer of the defendant to be due from him ; and that when such money is paid in it be deposited by said clerk, in trust, in the Bank of , to the credit of this cause, there to remain until the further order of this court. No. ^ZJiO. Final decree^ dismissing hill at tJie Jieariiig. {n) {Proceed as in No. 81, ante, page 20^, to the *, and con- tinue:) That the complainant's said bill of complaint be and the same is hereby dismissed, with costs to the defendant, to be taxed. No. 2Ji.l. Or d^ for cause to stand over., to add new parties, {o) {Caption, and title of cause as in No. 79, a.nte, page 198.) This cause coming on to be heard this day, and counsel for both parties having been in part heard ; and it appearing to the court that E. F. and G. H. are necessary parties to this cause, it is ordered that this cause do stand over, to the end that the complainant may make the said E. F. and G. H. par- ties thereto, either by amendment or supplemental bill, as he may be advised. No. '2}t2. Order for cause to stand over to supply proof s. {p) {Caption, and title of cause as in No. 79, ante, page 198.) This cause coming on to be heard this day, and counsel for both parties having been in part heard ; and it appearing to the court that the complainant has omitted to introduce proof of the death of E. F., his intestate, it is ordered, that this cause do stand over, to the end that the complainant may examine witnesses to prove the death of such intestate. (n) See ante, p. 197. (o) See ante, pp. 165-1(37. (p) See ante, pp. 165-167. MISCELLANEOUS FORMS. 627 Interrogatories — Answers to. No. 21)3. Interrogatories for the examination of a party in contempt for nx)t answering^ in pursuance of No. 225, ante, page 619. {q) {Title of cause as in No. 2^-5, \wst, page 628.) Interrogatories to be exhibited on the pait of the com- plainant, for the examination of C. D., the defend- ant in this cause, pursuant to an order made in said cause on the day of , 18 — . First. — Were you not, on or about the day of last, or at any other and what time, duly served with a sum- rnons in the above entitled cause ? When and by whom and liow was such service made ? Answer this interrogatory fully and particularly. Second. — Is not the writ of summons now shown to you the one served, and a copy of the same left with you ? Answer fiilly. Third. — Were, etc. {Here insert such additional inter- rogatories as may he deemed necessary.) , Sol. for Cornpjlainant. No. 2Ji4. Answer to interrogatories in ilie last form, No. 2^3. {Title of cause as in No. 2Jf5, Post, page 628 i) The answer and examination of C. D., the defendant in this cause, to the interrogatories exhibited by the complainant for his examination, pursuant to an order of this court, made in said cause, on the day of , IS—. To the first interrogatory, this defendant answers and says, that, etc. To the second inten'ogatoiy, he answers and says, that, etc., {and so on.) C. D. Sworn and subscribed to before me this day of , 18—. , Master in Chancery. (q) See ante, pp. 81-84. L 628 MISCELLANEOUS FORMS. Master's Report upon Exceptions, etc. — Further Answer, etc. No. QJfJJ. Miiiters report upon exceptions to answer for hisujfi^iency. {r) Li the Court. A. B. ) Term, 18 — . m. > 111 Chancery. C. D. ) To the Honorable , Judge of the Court of the County of , in the State of , In Chancery sitting: In pursuance of an order of this court made in the above entitled cause, on the day of , 18 — , whereby it was referred to me, as master in cliaiicery of this court, to look into the complainant's bill of complaint, the answer of the defend- ant C. D., and the exceptions taken to said answer by the com- plainant, and report whether said exceptions are well taken or not. I, the said master in chancery, do hereby respectfully certify and report, that having been attended by the counsel of the respective parties, and having looked into said bill and answer, and the exceptions taken thereto, and having duly considered the same, I lind that the first and fourth exceptions to said answer are well taken, and that the second, third and fifth exceptions are not well taken. All of which is respectfully submitted. , Master m Chancery^ County. No. 21^6. Further answer after exceptions and amendment. In the Court. C. D. I Term, IS—. ats. \ In Chancerv. A. B. \ The further answer of the defendant C. D. to the original bill of complaint ; and the answer of the same defendant to the amended lull of the com- plainant. This defendant, saving and reserving to himself the same benefit of exception to the said original and amended bill, as by his former answer to the said original bill, is saved and (r) See ante, pp. 158-160. MISCELLANEOUS FORMS. 0539 Report of Master, etc. — Exceptions to Report, etc. reserved for answer thereto, or so much, etc., {as in No. 57, ante, page l^S,) answers and says, etc. And this defendant, in further answer to such original bill, as to the matters of the first exception taken by the complain- ant to his former ansAver, says, etc. {a?id so on.) And this defendant, for further answer to the amendments made to such original bill, says, etc. No. 2Ji.7. Master'' s report as to sufficiency of defendants examination. {Title of cause as in No. 2Ji^5, m\te,page 628.) To the Honorable , Judge of the Court of the County of , in the State of , In Chancery sitting : In pursuance of an order of this court made in the above entitled cause', on the day of , 18 — , whereby it was referred to me, as master in chancery of this court, to examine the defendant C. D. on interrogatories to the points wherein his third answer to the bill in this cause was reported insuf- licient. I, the said master, do hereby respectfully certify and report that, having been attended by the counsel for the respective parties, and having caused the said C. D. to be brought before me, I examined him upon oath upon the writ- ten interrogatories filed for that purpose, and also viva voce, and that his examination thereto is contained in a schedule hereto annexed, marked A. And I do further certify and report that, in my opinion, the said examination is sufficient. All of which is respectfully submitted. Dated at, etc. , Master in Chancery. No. 24^3. Exceptions to master's report on exceptioiis to answer, {s) {Title of cause as in No. 24^, a,nie,page 628.) Exceptions taken by the complainant to the report of the master in chancery of this court, to whom it was referred to report as to the exceptions filed to the answer of the defendant C. D. First. — For that the said master has, in and by his said re})ort, certified that, etc. {Ilei'e set out the words of the report.) Whereas, the said master ought to have certified that (s) See ante, p. 157, et seq. G30 MISCELLANEOUS FOKMS. Agreement to Submit Cause, etc. — Abstract of Pleading, etc. tlie exceptions to the answer of the defendant C. D. were well taken, and that the said answer of the defendant C. D. was imperfect, insufficient and evasive in the particulars ex- cepted to. Second. — For that the said master has certilied, etc., [and so on.) In all which particulars the report of the said master is erroneous, and the complainant appeals therefrom to the judg- ment of this honorable court. , Sol. for Gonuplaina/nt. No. 'Blfi Agreement to submit the cause on written argumerits. Court. Term, 18- In Chancery. It is stipulated and agreed that this cause be submitted to the court on written arguments. The complainant's counsel to serve his argument within days, and the defendant's counsel to answer the same within days thereafter, and the complainant's counsel to reply Mathin days after the defendant's argument shall have been served. Dated, etc. , Sol. for Complainant. Sol. for Defendant. Ho. '250. Ahstract of i^leadings., etc. In the Court. In Chancery. Term, 18—. The bill in this cause was filed on the day of 18— ; The answer was filed on the day of , 18 — ; and the replication on the day of ,18 — . The following wit- nesses were examined on the day of , 18 — , before the master in chancery, in pursuance of an order of reference, made on the day of , 18 — , to-wit : E. F. and G. H. on the part of the complainant, and J. K. and L. M. on the part of the defendant. The following documents were also produced, to-wit : etc. The object of the bill is to procure a conveyance from the defendant of the real estate described in the bill, and being the, etc. {Here insert the description.) MISCELLANEOUS FOKMS. 631 Abstract, etc. — Brief and Points, etc. BILL. States that before complainant purchased lot 7, etc., L. M. owned the improvements, etc. Lot 9 was leased to L. M. on, etc., but by an agreement, etc. On the day of parties, etc. -, etc., both Complainant paid, etc. Usual charge of confederacy, etc. Answer on oath prayed for. Prayer for injunction ; that defend- ant may be decreed to execute con- veyance ; and for general relief. REPLICATION. For complainant, E. F. testifies that, etc. Q. H. testifies that, etc. ANSWER. Admittt'd. But the defendant, on, etc., purchased of L. M. all the im- provements. Denies, etc. Substantially admitted. Denied. General traverse, and usual con- clusion. For defendant, J. iL. testifies that, etc. L. M. testifies thAt, etc. JV^o. 251. Brief and points on hearing. In the - A. B. vs. C. D. court. In Chancery. Term, 18—. The complainant has a perfect remedy at law whereby he may avail himself of every ground of complaint set forth in the bill. Authorities cited. u. The court of chancery will not assume jurisdiction in this case upon the ground of its being a bill of peace. Because, First. — The bill is tiled only against a single party, which party has neither commenced nor threatened to commence a multiplicity of suits, etc. Second. — The apprehensions of the complainant that, etc. Third. — That, etc. Authorities oited. 63-Z MISCELLANEOUS EOEMS. Brief and Points, etc. III. The defeiKlaiits are authorized by the act of, etc., to pass the ortlinance iu question. Authorities cited. IV. The ordinance is a reasonable regulation of trade, etc. Authorities cited. RULES OF PRACTICE FOR THE COURTS OF EQUITY OF THE UNITED STATES. Revised and corrected at Decemier Term, 1870. Section 1. Preliminary Regulations. 2. Process. 3. Service of Process. 4. Appearance. 5. Bills taken Pro Confesso. 6. Frame of Bills. 7. Scand^\x and Impertinence in Bills. 8. Amendment of Bills. 9. Demurrers and Pleas. 10. Answers. 11. Parties to Bills. 12. Nominal Parties to Bills. 13. Bills of Revivor and Supplemental Bills. 14. Answers. 15. Amendment op Answers. 16. Exceptions to Answers. 17. Replication and Issue. 18. Testimony, how Taken. 19. Testimony De Bene Esse. 20. Form of the I^ast Interrogatory. 21. Cross-Bill. 22. Reference to and Proceedings before Masters. 23. Exceptions to Report of Master. 24. Decrees. 25. Guardians and Prochein Amis. SECTION I. PKELIMINAEY REGULATIONS. 1. The circuit courts, as courts of equity, shall be deemed always oj)en for the purpose of tiling bills, answers, and other pleadings, for issuing and returning mesne and Unal process rm RULES OF U. S. SUPREME COURT. Preliminary Regulations. and commissions, and for making and directing all interlocu- tory motions, orders, rules, and other proceedings, preparatory to the hearing of all causes upon their merits. 2. The clerk's office shall be open, and the clerk shall be in attendance therein, on the first Monday of every month, for the purpose of receiving, entering, entertaining, and disposing of all motions, rules, orders, and other proceedings, which are grantable of course, and applied for, or had by the parties, or their solicitors, in all causes pending in equity, in pursuance pf the rules hereby prescribed. 3. Any judge of the circuit court, as well in vacation as in term, may, at chambers, or on the rule-days at the clerk's office, make and dii'ect all such interlocutory orders, rules, and other proceedings, preparatory to the hearing of all causes upon their mei'its, in the same manner and with the same effect as the circuit court could make and direct the same in term, reason- able notice of the application therefor being first given to the adverse party, or his solicitor, to appear and show cause to the contrary at the next rule-day thereafter, unless some other time is assigned by the judge for the hearing. 4. All motions, rules, orders, and other proceedings made and directed at chambers, or on rule-days at the clerk's office, whether special or of course, shall be entered by the clerk in an order-book, to be kept at the clerk's office, on the days when they are made and directed ; which book shall be open at all office hours to the free inspection of the parties in any suit in equity, and their solicitors. And, except in cases where per- sonal or other notice is specially required or directed, such entry in the order-book shall be deemed sufficient notice to the parties and their solicitors, without further service thereof, of all orders, rules, acts, notices, and other proceedings entered in such order-book, touching any and all the matters in the suits to and in which they are parties and solicitors. And notice to the solicitors shall be deemed notice to the parties for whom they appear and whom they represent, in all cases where per- sonal notice on the parties is not otherwise specially required. Where the solicitors for all the parties in a suit reside in or near the same town or city, the judges of the circuit court may, by rule, abridge the time for notice of rules, orders, or other ]u-o- ceedings not requiring personal service on the parties, in their discretion. 5. All motions and applications in the clerk's office for the issuing of mesne process and final process to enforce and exe- cute decrees, for filing bills, answers, pleas, demurrers, and other pleadings ; for making amendments to bills and answere ; RULES OF U. S. SUPEEME COURT. 635 Process. for taking bills ]>ro confesso / for filing exceptions, and fur other proceedings in the clerk's office which do not, by the rules hereinafter prescribed, require any allowance or order of the court, or of any judge thereof, shall be deemed motions and applications, grantable of course by the clerk of the court. But the same may be suspended, or altered, or rescinded by any judge of the court, upon special cause shown. 6. All motions for rules or orders and other proceedings, which are not gi'antable of course, or without notice, shall, unless a ditferent time be assigned by a judge of the court, be made on a rule-day, and entered in the order-book, and shall be heard at the rule-day uext after that on which the motion is made. And if the adverse party, or his solicitor, shall not then appear, or shall not show good cause against the same, the motion may be heard by any judge of the court ex parte and granted, as if not objected to, or refused, in his discretion. SECTION II. PROCESS. 7. The process of subpcena shall constitute the proper mesne process in all suits in equity, in the first instance, to require the defendant to appear and answer the exigency of tlie bill ; and, unless otherwise provided in these rules, or specially ordered by the circuit 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 pur- pose of compelling obedience to any interlocutory or final order or decree of the court. 8. Final process to execute 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 circuit court in suits at common law in actions of assumpsit. If the decree be for the performance of any specific act, as, for example, for the execution of a convey- ance of land or the delivering up of deeds oi" 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 clerk'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 630 KULE8 OF U. S. SUPREME COURT. Service of Process. upon a full compliance with the decree and the payment of all costs, or upon a special order of the court, or of a judge tliereof, upon motion and affidavit, enlarging:: the time for the performance thereof. If the delinquent party cannot be founds a writ of sequestration shall issue against his estate upon the return of non est inventus, to compel obedience to the decree. 9. 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 prosecuting the same shall be entitled to a writ of assistance from the clerk of the court, 10. Every person, not being a party in any cause, who has obtained an order, or in whose favor an order shall have been made, shall be enabled to enforce obedience to such order by the same process as if lie were a party to the cause ; and every person, not being a party in any cause, against whom obedience to any order of the court may be enforced, shall be lial)le to the same process for enforcing obedience to such order as if he were a party in the cause. SECTION III. SEKVICE OF PROCESS. 11. ^o process of subprena shall issue from the clerk's office in any suit in equity until the bill is filed in the office. 12. "Whenever a bill is filed, the clerk shall issue the process of subpoena thereon, as of course, upon the application of the plaintiff, which shall be returnable into the clerk's office the next rule-day, or the next rule-day but one, at the election of the plaintiff, occurring after twenty days from the time of the issuing thereof. At the bottom of the subpoena shall be placed a memorandum, that the defendant is to enter his appearance in the suit in the clerk's office on or before the day at which the writ is returnable ; otherwise the bill may be taken ^>/'^ confesso. Where there are more than one defendant, a writ of subpoena may, at the election of the plaintiff", be sued out separately for each defendant, except in the case of husband and wife defendants, or a joint subpoena against all the defend- ants. 13. The service of all subpcenas shall be by a delivery of a copy thereof by the officer serving the same to the defendant personally, or, in case of husband and wife, to the husband personally, or by leaving a copy thereof at the dwelling-house or usual place of al)ode of each defendant, with some free white person who is a member or resident in the family. RULES OF U. S. SUPREME COURT. 637 Appearance — Bills taken Pro Confesso. 14. Wlienever any subpoena sliall be returned not executed as to any defendant, the plaintiff shall be entitled to another subpcrna, toties quoties, against such defendant, if he shall require it, until due service is made. 15. The service of all process, mesne and tinal, shall be by the marshal of the district, or his deputy, or by some other person specially appointed by the court for that purpose, and not otherwise. In the latter case, the person serving the pro- cess shall make affidavit thereof. 16. Upon the return of the subpoena as served and executed upon any defendant, the clerk shall enter the suit upon his docket as pending in the court, and shall state the time of the entry. SECTION IV. APPEARANCE. 17. The appearance-day of the defendant shall be the rule- day to which the subpojna is made returnal)le, provided he has been served with the process twenty days before that day ; otherwise his appearance-day shall be the next rule-day suc- ceeding the rule-day when the process is returnable. The appearance of the defendant, either personally or by his solicitor, shall be entered in the order-book on the day thereof by the clerk. SECTION V. BILLS TAKEN PKO CONFESSO. 18. It shall be the duty of the defendant, unless the time shall be otherwise enlarged, for cause shown, by a judge of the court, upon motion for that purpose, to file his plea, de- murrer, or answer to the bill, in the clerk's office, on the rule- day next succeeding that of entering his appearance. In default thereof, the plaintiff may, at his election, enter an order (as of course) in the order book, that the bill be taken pro confesso; and thereupon the cause shall be proceeded in ex parte^ and the matter of the bill may be decreed by the court at the next ensuing term thereof accordingly, if the same can be done without an answer, and is proper to be decreed ; or the plaintiff, if he requires any discovery or answer to enable him to obtain a proper decree, shall be entitled to process of attach- ment against the defendant, to compel an answer, and the G38 KULES OF U. S. SUPHEME COURT. Frame of Bills. defeudaut shall not, when arrested upon such process, be dis- charged therefrom unless upon filing his answer, or otherwise complying with such order as the court or a judge thereof may direct, as'to pleading to or fully answering the bill, within a period to be lixed b}' the court or judge, and undertaking to t«peed the cause. 19. When the bill is taken jr/'O cojifesso, the court may pro- ceed to a decree at the next ensuing term thereof, and such decree rendered shall be deemed absolute, unless the court shall, at the same term, set aside the same, or enlarge the time for tiling the answer, upon cause shown upon motion and affidavit of the defendant. And no such motion shall be granted, unless upon the payment of the costs of the plaintitf in the suit up to that time, or ^\\d\ part thereof as the court shall deem reasona- ble, and unless the defendant shall undertake to tile 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. SECTION VI. FRAME OF BILLS. 20. Every bill, in the introductory part thereof, shall contain the names, places of abode, and citizenship of all the parties^ plaintiffs and defendants, by and against whom the bill is brought. The form, in substance, shall be as follows : " To the judges of the Circuit Court of the United States for the district of : A. B., of , and a citizen of the State of , brings this his bill against C. D., of , and a citizen of the State ot , and E. F., of- , and a citizen of the State of . And thereupon your orator complains and says, that," etc. 21. The plaintitf, in his bill, shall be at liberty to omit, at his option, the part which is usually called the common confede- racy clause of the bill, averring a confederacy between the defendants to injure or defraud the plaintiff; also what is com- monly called the charging part of the bill, setting forth the matters or excuses which the defendant is supposed to intend to set up by way of defense to the bill ; also what is commonly called the jurisdiction clause of the bill, that the acts com- plained of are contrar}!^ to equity, and that the defendant is with- out any remedy at law ; and the bill shall not be demurrable therefor. And the plaintiff may, in the narrative or stating part of his bill, state and avoid, by counter-averments, at his option, any matter or thing which he supposes will be insisted RULES OF U. S. SUPREME COURT. 639 Scandal and Impertinence in Bills. upon by the defendant, by way of defense or excuse, to the case made by the plaintiff for relief. The prayer of the bill shall ask the special relief to which the plaintiff supposes himself entitled, and also shall contain a prayer for general relief; and if an injunction, or a writ of ne exeat regno, or any other special order pending the suit is required, it shall also be specially asked for. 22. If any persons, other than those named as defendants in the bill, shall appear to be necessary or proper parties thereto, the bill shall aver the reason why they are not made parties, by showing them to be without the jurisdiction of the court, or that they cannot be joined without ousting the jurisdiction of the court as to the other parties. And as to persons who are without the jurisdiction and may properly be made parties, the bill may pray that process may issue to make them parties to the bill, if they should come within the jurisdiction. 23. The prayer for process of subpoena in the bill shall con- tain the names of all the defendants named in the introductory part of the bill, and if any of them are known to be infants under age, or otherwise under guardianship, shall state the fact, so that the court may take order thereon as justice may require, upon the return of the process. If an injunction, or a writ of ne exeat regno, or any other special order pending the suit, is asked for in the prayer for relief, that shall be sufficient without repeating the same in the prayer for process. 24. Every bill shall contain the signature of counsel annexed to it, which shall be considered as an affirmation on his part, that upon the instructions given to him, and the case laid be- fore him, there is good ground for the suit, in the manner in which it is framed. 25. In order to prevent unnecessary costs and expenses, and to promote brevity, succinctness, and directness in the allega- tions of bills and answers, the regular taxable costs for every bill and answer shall in no case exceed the sum which is allowed in the state court of chancery in the district, if any there be ; but if there be none, then it shall not exceed the sum of tliree dollars for every bill or answer. SECTION VII. SCANDAL A:SU impertinence IX BILLS. 26. Every bill shall be expressed in as brief and succinct terms as it reasonably can be, and shall contain no unnecessary recitals of deeds, documents, contracts, or other instruments, in 640 KULES OF U. S. SUPREME COURT. Amendment of Bills. hcBC verba, or any other impertinent matter, or any scandalous matter not relevant to the suit. If it does, it may on excep- tions be referred to a master by any judge of the court for im- pertinence or scandal ; and if so found by him, the matter shall be expunged at the expense of the plaintiff, and he shall pay to the defendant all his costs in the suit up to that time, unless the court, or a judge thereof shall otherwise order. If the master shall report that the bill is not scandalous or imperti- nent, the plaintiff shall be entitled to all costs occasioned by the reference. 27. No order shall be made by any judge for referring any bill, answer or pleading, or other matter, or proceeding depend- ing, before the court for scandal or impertinence, unless excep- tions are taken in writing and signed by counsel, describing the particular passages which are considered to be scandalous or impertinent ; nor unless the exceptions shall be tiled on or before the next rule-day after the process on the bill shall be returnable, or after tlie answer or pleading is filed. And such order, when obtained, shall be considered as abandoned, unless the party obtaining the order shall, without any uimecessary delay, procure the master to examine and report for the same on or before the next succeeding rule-day, or the master shall certify that further time is necessary for him to complete the examination. SECTION VIII. AMENDMENT OF BILLS. 28. The plaintiff sliall be at liberty, as a matter of course, and without payment of costs, to amend his bill in an}' matters whatsoever, before any copy has been taken out of the clerk's office, and in any small matters afterward, such as filling blanks, correcting errors of dates, misnomer of parties, misde- scription of premises, clerical errors, and generally in matters of form. But if he amend in a material point, (as he may do of course,) after a copy has been so taken, before any answer or plea, or demurrer to the bill, he shall pay to the defendant the costs occasioned thereby, and shall, without delay, furnish him a fair copy thereof, free of expense, with suitable refei-- ences to the places where the same are to be inserted. And if the amendments are numerous, he shall furnish in like manner to the defendant, a copy of the whole bill as amended ; and if there be more than one defendant, a copy shall be furnished to each defendant affected thereby. RULES OF U. S. SUPREME COURT. G41 Demurrers and Pleas. 29. After an answer or plea or deumrrer is put in, and before replication, the plaintiff may, \ipon motion or petition, without notice, obtain an order from any ji^dge of the court to amend liis bill on or before the next succeeding rule-day, upon pay- ment of costs or without payment of costs, as the court or a judge thereof ma}^ in his discretion direct. But after replica- tion filed, the plaintiff shall not be permitted to withdraw it and to amend his bill, except upon a special order of a judge of tlie court, upon motion or petition, after due notice to the otlier party, and upon proof by affidavit that the same is not made for the purpose of vexation or delay, or that the matter of the proposed amendment is material, and could not with reasonable diligence have been sooner introduced into the bill, and upon the plaintiff's submitting to such otlier terms as may be imposed by the jndge for speeding the cause. 30. If the plaintiff, so obtaining any order to amend his bill after answer, or plea, or demurrer, or after replication, shall not file his amendments or amended bill, as the case may require, in the clerk's office, on or before the next succeeding rule-day, he shall be considered to have abandoned the same, and the cause shall proceed as if no application for any amendment had been made. SECTION IX. DKMUK'KKHS AND I'LKAS. 31. No dennn-rer or plea shall be allowed to be filed to any bill, unless, upon a certificate of counsel that in his opinion it is well founded in point of law, and supported by the affidavit of the defendant that it is not interposed for delay ; and if a plea, that it is true in point of fact. 32. The defendant may, at any time before the bill is taken for confessed, or afterward, with the leave of the court, demur or plead to the whole bill or part of it, and he may demur to part, plead to part, and answer as to the residue ; but in every case in which the bill specially charges fraud or combination, a plea to such part must be accompanied with an answer fortify- ing the plea, and explicitly denying the fraud and combination, and the facts on which the charge is founded. 33. The plaintiff may set down the demurrer or plea to be argued, or he may take issue on the plea. If, upon an issue, the facts stated in the plea be determined for the defendant, they shall avail him as far as in law and equity they ought to avail him. 41 642 RULES OF U. S. SUPREME COURT. Answers. 34. If, upon tlie hearing, any demurrer or plea is overruled, tlic plaintin shall be entitled to his costs in the cause up to that period, unless the court shall be satisfied that the defendant has good ground in point of law or fact to i)iterpose the same, and it was nc»t interposed vexatiously or for delay. And upon the overruling of any plea or demurrer, the defendant shall be assigned to answer the bill, or so much thereof as is covered by the plea or demurrer, the next succeeding rule-day, or at such other period as. consistently with justice and the rights of the defendant, the same can, in the judgment of the court, be rea- sonably done; in default whereof, the bill shall l)e taken against him pro con/esso, and the matter thei-eof proceeded in and decreed accordingly. 35. If, upon the hearing, any demurrer or plea shall be allowed, the defendant shall be entitled to his costs. But the court may, in its discretion, upon motion of the plaintifl", allow him to amend his bill upon such terms as it shall deem reason- able. 36. No demurrer or plea shall be held bad and overruled upon argument, only because such demurrer or plea shall not cover 60 much of the bill as it might by law have extended to. 37. No demurrer or plea shall be held bad and overruled upon argument, only because the answer of the defendant may extend to some part of the same matter as may be covered by such demurrer or plea. 38. If the plaintiff shall not reply to any plea, or set down any plea or demurrer for argument, on the rule-day when the same is filed, or on the next succeeding rule-day, he shall be deemed to admit the truth and sutRciency thereof, and his bill shall be dismissed as of course, unless a judge of the court shall allow him further time for tlie purpose. SECTION X. ANSWKRS, 39. The rule that if a defendant submits to answer he shall answer fully to all the matters of the bill, shall no longer apply in cases where he might by plea protect himself from such answer and discovery. And the defendant shall be entitled in all cases by answer to insist upon all matters of defense (not being matters of abatement, or to the character of the parties, or matters of form) in bar of or to the merits of the bill, of which he may be entitled to avail himself by a plea KULES OF U. S. .SUPREME COURT. 643 Answers. in bar; and in such answer he shall not be compellable to answer any other matters than he would be compellable to answer and discover upon tiling a plea in bar, and an answer in support of such plea, touching the matters set forth in the bill, to avoid or repel the bar or defense. Thus, for example, a hoiia fide purchaser for a valuable consideration, without notice, may set up that defense by way of answer instead of plea, and shall be entitled to the same protection, and shall not be compellable to make any further answer or discovery of his title than he would be in any answer in support of such plea. 40. A defendant shall not be bound to answer any statement or charge in the bill, unless specially and particularly interro- gated thereto ; and a defendant shall not be bound to answer any interrogatory in the bill, except those interrogatories which such defendant is required to answer ; and where a defendant shall answer any statement or charge in the bill, to which he is not interrogated, only by stating his ignorance of the matter so stated or charged, such answer shall be deemed impertinent Decetnber Term., 1850. Ordered., That the fortietli rule heretofore adopted and pro- mulgated by this court as one of the rules of practice in suits in equity in the circuit couits be, and the same is hereby, repealed and annulled. And it shall not hereafter be neces- sary to interrogate a defendant specially and ])articularly upon any statement in the bill, unless the complainant desires to do so, to obtain a discovery. 41. The interrogatories contained in the interrogating part of the bill shall be divided as conveniently as may be from each othei', and numbered consecutively 1, 2, 3, etc. ; and the interrogatories which each defendant is required ttt answer shall be specified in a note at the foot of the bill, in the form or to the effect following, that is to say : " The defendant (A. B.) is required to answer the interrogatories numbered respectively 1, 2, 3, etc. ; " and the office copy of the bill taken by each defendant shall not contain any interrogatories except those which such defendant is so required to answer, unless such defendant shall require to be furnislied with a copy of the whole bill. 42. The note at the foot of the bill, specifying the inter- rogatories which each defendant is required to answer, shall be considered and treated as part of the bill, and the addition of any such note to the bill, or any alteration in or addition to such note after the bill is filed, shall be considered and treated as an amendment of the bill. 644 RULES OF U. 8. SUPREME COURT. Parties to Bills. 43. Instead of tlie words of the bill now in use, preceding tlie interrogating part thereof, and beginning with the words " To the end, therefore," there shall hereafter be used words in the form or to the effect tbllowing: "To the end, therefore, that the said defendants may, if they can, show why your orator should not have the relief hereby prayed, and may, upon their several and res}>ective corporal oaths, and according to the best and utmost of their several and i-espective knowledge, remembrance, information, and belief, full, true, direct and per- fect answer make to such of the several interrugatories hei'ein- after numl)ered and set forth, as ijy the note hereunder written they are respectively required to answer, that is to say : " 1. Whether, etc. " 2. Whether, etc." 44. A defendant shall be at liberty, by answer, to decline answering any interrogatory, or part of an interrogatory, from answering which he niigjit have protected himself by demurrer ; and he shall be at h'berty so to decline, notwitlistanding he shall answer other parts of the l>ill from whicli lie might have protected himself by demurrer. 45. ]^o special replication to any answer shall be filed. Ihit if any matter alleged in the answer shall make it necessary for the -plaintiff to amend his bill, he may have leave to amend the same M'itli or without the payment of costs, as the court, or a judge thereof, may in his discretion direct. 46. In every case where an amendment shall be made after answer tiled, the defendant shall put in a new or supplemental answer, on or before the next succeeding rule-day after that on which the amendment or amended bill is filed, unless the time is enlarged or otherwise ordered by a judge of the court; and* upon his default the like proceedings may be bad as in cases of an omission to put in an answer. SECTION XI. I'AKIIKS TO I5TT,LB. 47. In all cases where it shall appear to the court that per- sons who might otherwise be deemed necessary or proper parties to the suit, cannot be made parties by reason of their being out of the jurisdiction of the court, or incapable other- wise of being made parties, or because their joinder would oust the jurisdiction of tlie court as to the parties before the court, tile court may, in their discretion, proceed in the cause without making such [>ci-sons parties; and in such c-at^es the RULES OF U. S. SUPREME COURT. 645 Parties to Bills. decree shall be without ]n-ejudice to tlie rights «)t' the absent parties. 48. Where the parties on eitlier side are very numerous, and cannot, without uiauitest inconvenience and oppressive delays in the suit, be all brought before it, the court in its discretion may dispense witli making all of them parties, and may pro- ceed in the suit, having sufficient pai-ties before it to represent all the adverse interests of the plaintiffs and the defendants in the suit properly before it. But in such cases the decree shall be without prejudice to the rights and claims of all the absent parties. 49. In all suits concerning real estate which is vested in trustees by devise, and such trustees are competent to sell and give discharges for the proceeds of the sale, and for the rents and profits of the estate, such trustees shall represent the per- sons beneficially interested in the estate, or the proceeds, or the rents and profits, in the same manner and to the same extent, as the executors or administrators in suits concerning personal estate represent the persons beneficially interested in such personal estate; and in sucli cases it shall not be neces- sary to make the persons beneficially interested in such real estate, or rents and profits, parties to the suit ; but the court may, upon consideration of the matter on the hearing, if it shall so think fit, order such persons to be made parties. 50. 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 liave the will established against him. 51. In all cases in which the plaintifi' has a joint and several demand against several persons, either as principals or sureties, it shall not be necessary 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. 5'2. Where the defendant shall, by his answer, suggest that the bill is defective for want of parties, the plaintiff shall be at liberty, within fourteen days after answer filed, to set down the cause for argument upon that objection only ; and the pur pose for which the same is so set down shall be notified l)y an entry, to be made in the clerk's order book, in the form or to the effect following, (that is to say,) "Set down u])on the defendant's objection for want of parties." And where the plaintiff shall not so set down his cause, but .shall ])roceed therewith 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 ol)jection shall then ]>e allowed, 646 RULES OF U. S. SUPREME COURT. Nominal Parties to Bills — Bills of Revivor and Supplemental Bills. be entitled as of course to an order for liberty to amend his bill by adding parties. But the court, if it thinks fit, shall be at liberty to dismiss the bill. 53. If a defendant shall, at the hearing of a cause, object that a suit is defective for want of parties not having by plea or answer taken the objection, and therein specified by name or description the parties to whom the objection applies, the court {if it shall thrak fit) shall be at liberty to make a decree sav- ing the rights of tlie absent parties. SECTION XII. NOMINAL I'ARTIES TO BILLS. 54. Where no account, payment, conveyance, or other direct relief is sought against a party to a suit, not being an infant, the party, upon service of the subpoena upon him, need not appear and answer the bill, unless the plaintiff specially requires him so to do by the prayer of his bill ; but he may appear and answer at his option ; and if he does not appear 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. 55. AVhenever an injunction is asked for by the bill to stay proceedings at law, if the defendant do not enter his appear- ance and plead, demur or answer to the same within the time prescribed therefor by these rules, the plaintiff shall be entitled, as of course, upon motion without notice, to such injunction. But special injunctions shall be grantable only upon due notice to the other party by the court in term, or by a judge thereof in vacation, after a hearing, which may be ex parte, if the adverse party does not appear at the time and place ordered. In every case where an injunction, either the common injunc- tion or a special injunction, is awarded in vacation, it shall, unless previously dissolved by the judge granting the same, continue until the next term of the court, or until it is dis- solved by some other order of the court. SECTION XIII. BILLS OF KEV IVOR AND SUPPLEMENTAL BILLS. 5(). Whenever a suit in equity shall become abated by the death of either party, or by any other event, the same may be RULES OF U. S. SUPREME COURT. 647 Answers — Amendment of Answers. revived by a bill of revivor, or a bill in the nature of a bill of reviv(»r, as the circumstances of the case may require, filed by the proper parties entitled to revive the same ; which bill may be tiled in the clerk's office at any time; and upon suggestion of the facts, the proper process of subpoena shall, as of course, be issued by the clerk, i-equiring the proper representatives of the other party to appear and show cause, if any they have, why the cause should not be revived. And if no cause shall be shown at the next rule-day which shall occur after fourteen days from the time of the service of the same process, the suit shall stand revived, as of course. 57. Whenever any suit in equity shall become defective from any event happening after the filing of the bill, (as, for example, by change of interest in the parties.) or for any other reason a supplemental bill, or a bill in the nature of a supple- mental bill, may be necessary to be filed in the cause, leave to file the same may be granted by any judge of the court on any rule-day, upon proper cause shown, and due notice to the other party. And if leave is granted to file such supplemental hill, the defendant shall demur, plead, or answer thereto, on tlie next succeeding rule-day after the supplemental bill is filed in the clerk's office, unless some other time shall be assigned by a judge of the court. 58. It shall not be necessary in any bill of revivor, or sup- plemental bill, to set forth any of the statements in the original suit, unless the special circumstances of the case may require it. SECTION XIV. ANSWERS. 59. Every defendant may swear to his answer before any justice or judge of any court of the United States, or before any connnissioner appointed by any circuit court to take testi- mony or depositions, or before any master in chancery appointed by any circuit court, or before any judge of any court of a state or territory. SECTION XV. AMENDMENT OF ANSWERS. 60. After an -answer is put in, it may be amended as of course, in any matter of form, or by tilling up a blank or correcting a date, or reference to a document or other small 648 RULES OF TJ. S. SUPREME COURT. Exceptions to Answers. matter, «and be resworn, at any time before a replication is put in, or the cause is set down for a hearing upon bill and answer. But after replication, or such setting down for a hearing, it shall not be amended in any material matters, as by adding new facts or defenses, or qualifying or altering the original statements, except by s[»ecial leave of the court or of a judge thereof, upon motion and cause shown after due notice to the adverse party, supported, if required, by affidavit. And in every case where leave is so granted, the court or the judge granting the same may, in his discretion, require that the same be separately engrossed and added as a distinct amendment to the original answer, so as to be distincjuishabic therefrom. SECTION XVI. KXCKl'TIONS TO ANSWKKS. 61. After an answer is tiled un any rule-day, the plaintitt" shall be allowed until the next succeeding rule-day to file in the clerk's office exceptions thereto for insufficiency, and no longer, unless a longer time shall be allowed for the purpose, upon cause shown to the court or a judge thereof; and if no exceptions shall be filed thereto within that period, the answer shall be deemed and taken to be sufficient. (52. When the same solicitor is employed for two or more defendants, and separate answers shall be filed, or other pro- ceedings had l)y two or more of the defendants separately, costs shall not be allowed for such separate answers or other proceedings, unless a master, upon reference to him. shall certify that such separate answers and other proceedings were necessary or proper, and ought not to have been joined together. 63. Where exceptions shall be filed to the answer for insuf- ficiency within the period ])rescribed l)y these rules, if the defendant shall not submit to the same and file an amended answer on the next succeeding rule-day, the plaintiff shall forthwith set them down for a hearing on the next succeecfing rule-day thei'cafter before a judge of the court, and shall enter, as of course, in the order-book, an order for that purpose. And if he shall not so set down the same for a hearing, the exceptions shall be deemed abandoned, and the answer shall be deemed sufficient : provided, however, that the court, or any judge there(jf, may, for good cause shown, enlarge the time for filing exceptions, or for answering the same, in his discretion, upon such terms as he m-iv deem reasonable. RULES OF U. S. SUPRP:ME court. 649 Replication and Issue — Testimony, how Taken. 64. If at the hearing the exceptions shall be allowed, the defendant shall be allowed to put in a full and complete answer thereto on the next succeeding rule-day ; otherwise the plaintiff shall, as of course, be entitled to take the bill, so far as the matter of such exceptions is concerned, as confessed, or, at his election, he mav have a writ of attaclnnent to compel the de- fendant to make a better answer to the matter of the exceptions ; and the defeiidant, when he is in custody upon such writ, shall not be discharged therefrom but by an order of the court, or of a judge thereof, upon his putting in such answer and complying with such other terms as the court or judge may direct. 65. If upon argument, the plaintitrs exceptions to the answer shall be overruled, or the answer shall be adjudged insutlicient, the prevailing party shall be entitled to all the costs occasioned thereby, unless otherwise directed by the court, or the judge thereof, at the hearing upon the exceptions. SECTION XVII. KEPLICATION AND ISSUE. 66. Whenever the answer of the defendant shall not be excepted to, or shall be adjudged or deemed sufficient, the plaintiff shall file the general replication thereto on or before the next succeeding rule-day thereafter ; and in all cases where the general rei)lication is filed the cause shall be deemed to all intents and purposes at issue, without any rejoinder or other pleading on either side. If the plaintiff shall omit or refuse to file such replication within the prescribed ])eriod, the defendant shall be entitled to an order, as of course, for a dismissal of the suit; and the suit shall thereupon stand dismissed, unless the court, or a judge thereof, shall, upon motion for cause shown, allow a replication to be filed nunc pro tunc, the })laintitf sub- mitting to speed the cause, and to such other teiins as may be directed. SECTION XVIII. TESTIMON'V, HOW TAKKK. 67. After the cause is at issue, commissions to take testimony may be taken out in vacation as well as in term, jointly by botli parties, or severally by either party, upon interrogatories 650 RULES OF U. S. SUPREME COURT. Testimony, bow Taken. filed by the party takint^ out the same in tlie clerk's office, ten days' notice thereof being given to the adverse party to file cr(.»6t-interrogatories before the issuing of the commission ; and if no cross-interrogatories are filed at the expiration of the time, the commission may issue ex parte. In all cases the connuis- sioner or commissioners shall be named by the court, or by a judge thereof. If the parties shall so agree, the testimony may be taken upon oral interrogatories by the parties or their agents, without filing any written interrogatories. Deeemher Term, 185 Jf.. Ordered, That the sixty-seventh rule governing equity prac- tice be so amended as to allow the presiding judge of any court exercising jurisdiction, either in term time or vacation, to vest in the clerk of said court general power to name commissioners to take testimony in like manner that the court or judge thereot can now do by the said sixty-seventh rule. December Term, 1861. Ordered, That the last paragraph in the sixty-seventh rule in equity be repealed, and the rule be amended as follows : Either party may give notice to the other that he desires the evidence to be adduced in the cause to be taken orally, and thereupon all the witnesses to be examined shall be examined before one of the examiners of the court, or before an examiner to be specially appointed by the court, the ex- aminer to be furnished with a copy of the bill and answer, if any ; and such examination shall take place in the presence of the parties or their agents, by their counsel or solicitors, and the witnesses shall be subject to cross-examination and reexam- ination, and which shall be conducted as near as may be in the mode now used in common law courts. The depositions taken in such oral examination shall be taken down in writing by the examiner in the form of narrative, unless he determines the examination shall be by question and answer in special instances ; and, when completed, shall be read over to the witness and signed by him in the presence of the parties or counsel, or such of them as may attend ; provided, if the witness shall refuse to Bign the said deposition, then the examiner shall sign the same ; and the examiner may, upon all examinations, state any special matters to the court as he shall think fit ; and any question or questions which may be objected to shall be noted by the ex- aJniner upon the deposition, but he shall not have power to decide on the competency, materiality, or relevancy of the RULES OF U. S. SUPREME COURT. 651 Testimony, how Taken. questions ; and the court shall have power to deal with the costs of incompetent, immaterial, or irrelevant depositions, or parts of them, as may be just. The compulsory attendance of witnesses. In case of refusal of witnesses to attend, to be sworn, or to answer any question put by the examiner, or by counsel or solicitor, the same practice shall be adopted as is now practiced with respect to witnesses to be produced on examination before an examiner of said court on written interrogatories. Notice shall be given by the respective counsel or solicitors, to the opposite counsel or solicitors or parties, of the time and place of the examination, for such reasonable time as the exam- iner may tix by order in each cause. AVhen the examination of witnesses before the examiner is concluded, the original deposition, authenticated by the signa- ture of the examiner, shall be transmitted by him to the clerk of the court, to be there filed of record in the same mode as prescribed in the thirtieth section of act of congress, Septem- ber 24, 1789. Testimony may be taken on commission in the usual way by written interrogatories and cross-interrogatories, on motion to the court in term time, or to a judge in vacation, for special reasons satisfactory to the court or judge. December Term, 1869. Amendment to 67th rule. — Where the evidence to be adduced in a cause is to be taken orally, as provided in the order passed at the December term, 1861, amending the 6Tth general rule, the court may, on motion of either party, assign a time within which the complainant shall take his evidence in support of the bill, and a time thereafter within which the defendant shall take his evidence in defense, and a time thereafter within which the complainant shall take his evidence in reply ; and no further evidence shall be taken in the cause unless by agreement of the parties, or by leave of court tirst obtained on motion for cause shown. ^'^. Testimony may also be taken in the cause after it is at issue by deposition, according to the acts of congress. But in such case, if no notice is given to the adverse party of the time and place of taking the deposition, he shall, upon motion and affidavit of the fact, be entitled to a cross-examination of the witness, either under a commission or by a new deposition taken under the acts of congress, if a court or a judge thereof shall, under all the circumstances, deem it reasonable. 652 RULES OF U. S. SUPREME COURT. Testimony Dc Bene Esse — Form of last Interrogatory. 69. Three montlis and no more shall be allowed for tlio taking of testimony after the canse is at issue, unless the court or a I'udge thereof shall, upon special cause shown by either party, en- large the time; and no testimony taken after such period shall be allowed to be read in evidence at the hearing. Immediately upon the return of the commissions and depositions containing the testimony into the clerk's office, publication thereof may be ordered in the clerk's office, by an}' judge of the court, upon due notice to the parties, or it may be eidarged, as he may deem reasonable under all the circumstances ; but, by consent of the parties, publication of the testimony may at any time pass in the clerk's office, such consent being in writing, and a copy thereof entered in the order-books, or indorsed upon the deposition or testimony. SECTION XIX. TESTIMONY T)E BENE p:SSK. 7U. After any bill tiled, and before the defendant hath an- swered the same, upon affidavit made that any of the plaintiff's witnesses are aged and infirm, or going out of the country, or that any one of them is a single witness to a material fact, the clerk of the court shall, as of course, upon the application ol the plaintiff, issue a commission to such commissioner or com- missioners as a judge of the court may direct, to take the examination of such witness or witnesses de hene esse, upon giving due notice to the adverse party of the tinie and place of taking his testimony. SECTION XX. FORM OF THE LAST INTEKKOGATOKY. 71. The last interrugatory in the written interrogatories to take testimony now commonly in use shall in the future be altered and stated in substance thus : "Do you know, or can you set forth, any other matter or thing which may be a ])enefit or advantage to tlie parties at issue in this cause, or either -of them, or that may be material to the subject of this your exam- ination, or the matters in question in this cause? If yea, set forth the same fully and at large in your answer." RULES OF U. 8. SUPKEME COURT. 653 Croes-Bill — Reference to and Proceedings before Master. SECTION XXI. CIi068-BILL. 72. Where a defendant in equity tiles a cross-bill for discovery only against the ])laintilt' in the original bill, the defendant to the original bill shall Urst answer thereto before the original plaintiff shall be compellable to ans^ver the cross-bill. The answer of the original plaintiff to such cross-bill may be read and used by the party tiling the cross-bill at the hearing, in the same manner and under the same restrictions as the" answer praying relief may now be read and used. SECTION XXII. KKFEKENCE TO AND PKCK'KEDINGS BEFORE MASTERS. 73. Every decree for an account of the })ersonal estate of a testator or intestate shall contain a direction to the master, to whom it is referred to take the same, to inquire and state to the court what parts, if any, of such personal estate are outstanding or undisposed of, unless the court shall otherwise direct. 74. Whenever any reference of any matter is made to a master to examine and report thereon, the party at whose instance or for whose benefit the reference is made shall cause the same to be presented to the nuister for a hearing on or l)efore the next rule-day succeeding the time when the reference was made ; it 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 i-eference. 75. Upon every such reference it shall be the ut 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. 89. The circuit courts (both judges concurring therein) may make any other and further rules and regulations for the prac- tice, proceedings, and process, mesne and final, in their respect- ive districts, not inconsistent with the rules hereby prescribed, in their discretion, and from time to time alter and amend the same. 90. In all cases where the rules prescribed by this court or by the circuit court do not apply, the practice of the circuit court shall be regulated by the present practice of the High Court of Chancery in England, so far as the same may reason- ably be applied consistently with the local circumstances and local convenience of the district where the court is held, not aa positive rules, but as furnishing just analogies to regulate the practice. 91. Whenever, under these rules, an oath is or may be required to be taken, the party may, if conscientiously scrupu- lous of taking an oath, in lieu thereof, make solemn ararmation to the truth of the facts stated by him. December Te^'tn^ 1863. 92. Ordered^ That in suits in equity for the foreclosure of mortgages in the circuit courts of the United States, or in any court of the territories having jurisdiction of the same, a decree may be rendered for any balance that may be found due to the complainant over and above the proceeds of the sale or sales, and execution may issue for the collection of the same, as is provided in the 8th rule of this court regulating the equity practice, where the decree is solelv for the payment of money. 42 TABLE OF CASES CITED. Abbe V. Goodwin, 7 Conn 353 Abraham v. Bubb, 2 Freem. Cli. . . . 5^3-564 Abraham v. Dodj^son, 2 Atk. R 276 Abraham v. Plutoru, 3 Woud 48 Adams v. Dixon, 19 Geo 279 Adams V. Downing, 2 Mad. . . . 215, 218, 219 Adams v. Porter, 1 Cush 133 Ahl V. Johnson, 20 How. U. S 319 Aggas V. Pickerill, 3 Atk 113 Ahrenfelt v. Ahrenfelt, Hofl'. Ch 526 Aiken v. Ballard, Rice, Ch 44, 47 Aikeu V. Lloyd, 28 111 36 Albany City Bank v. Schermerhorn, 1 Clarke 403, 404 Albright V. Smith, 6 Chicago Legal News 618 Aldrich v. Sharp, 3 Scam 390 Alemany v. Weusinger, 40 Cal 288 Allan V. Allan, 15 Ves 294, 295 Allen T. Allen, 4 Allen 510 Allen V. Allen, Hemp 313 Allen V. Beal, 3 A. K. Marsh 323 Allen V. Coffman, 1 Bibb 57 Allen V. Randolph, 4 Johns. Ch. .. 117, 118 Allen V. Smith, 1 Leigh R 165 Allison V. Allen, 46 111 548 Allison T. Clark, Breese 318 Alpha V. Pay man, 1 Dick. R 132 Alton M. & F. Co. v. Biickmajster, 13 111. 535 Altree v. Hardin, 3 Lond. Jurist 167 Amos V. Amos, 3 Greene, N. J. Ch. . . . 5;W Anderson v. Ward. 6 Monr 313 Anderson v. White, 27 111 327 Anderson v. White, 10 Paige, Ch 227 Angell v. Angell, 1 Sim. &Stu. 294, 296, 299 Angell V. Hadden, 16 Ves 291 Anglin t. Nott, 1 Scam 74 Anon. 15 Ves 84 Anon. .35 Ala 488 Anon. 2 Ves 95, 299 Anon. Amb 299 Anon. 2 Freem ;i56, 357 Anon, t Atk 5.55 Anon. 3 Atk 117, 227, 353 Anon. 1 Vern 291 Anon. 3 Mad 3;J4, a35 Aushutz V. Anshinz, 1 C. E. Greene, N. J 511 Anthony v. Anthony, 3 Stockt. N. J. . . 508 Anthony v. Leftwick, 3 Rand 318 Archbishop of York v. Stapleton, 2 Atk. 165 Archibald v. Argall, 53 111 98 Archibald v. Means, 5 Ired. Eq. R 42 Arendell v. Blatkwell, 1 Dev. Ch 167 Armistead v. Bozman, 1 Ired. Ch. R... 171 Armstrong v. Armstrong, -35 111. 109, 464, 52;J Armstrong v. Armstrone, 3 Geo. Miss. . .509 Armstrong v. Athens Co. 10 Ohio 51 Armstrong v. Caldwell, 2 Scam 47 Armstrong v. Cooper, 11 111 200, 397 Armstrong v. Gilchrist, 2 Johns. Ch. R. 269 Arnold v. Styles, 2 Blackf 235 Artec V. Engart, 13 111 152 Asbee v. Skipley, Mad. & Geld 307 Ashbaugh v. Ashbaiigh, 17 111 497 Astley V. Fountaiue, Finch 129 Aston V. Aston, 1 Ves .564 Atkiu V. Merrell, 39 111. .306, 307, 458, 477, 478 Atkinson v. Manks, 1 Cowen, 279, 281, 28:J 288, 291, 292 Atterbery t. Knox, 8 Dana 88 Attorney General v. Birch, 4 Mad 277 Attorney General v. Bradford Canal Co. 2 Eq. Cas. Abr 103 Attorney General v. Brown, 1 Swanst.. 105 Attorney General v. Day, 1 Ves.. . . 222-223 Attorney General v. Foster, 2 Hare, 240 241 Attorney General v. Garrison, 11 Mass. 569 Attorney General v. Whorwood, 1 Ves. Sr 64 Atwill V. Ferrctt, 2 Blatchf. C. C. . . 49. 104 Austin V. Baintcr, 50 111 189 Austin V. Richardson, 1 Gratt 64 Avery v. Holland, 2 Overton 108, 278 Axburg V. Finchan, 1 Vern 228 Aymer v. Gaunt, 2 Paige, Ch 289, 291 B Babcock v. McCamant, 5:mi 47, 103 Babcock v. Wlllard, 4 West. Law Monthly .398, 399 660 TABLE OF CASES CITED. Bkbcock V. WjTiian, 19 How. U. S 351 Badcau v. Rogors, 2 Paige, Ch. 280, 289, 292 Badger v. Badger, 2 Wallace 47 Bapgott V. Henry, 1 Edw. Ch 159-1(50 Bagnall v. Bagiiall, 2 Eq. Abr 216 Bailey v. Bailey, 97 Mass 502 Bailey V. Bailey, 21 Gralt. Va 532 Bailey v. Bennett, 3 Voungc Ififi Bailey v. Bnrtou, 8 Wend 398, 400 Bailey v. West, 41 111 459, 466 Bailey v. Wilson, 1 Dev. & Bat. Ch. . . . 134 Bailey v. Wright, 2 Bond 135 Baincs v. McGee, 1 S. & M 47, 50, 100 Baird v. Baird, 1 Dev. & Bat :340 Baker v. Biddle, 1 Bald 46 Baker v. Bishop Hill Colony, 45 111 321 Baker v. Booker, 6 Price 99 Baker v. Kingeland, 3 Edw. Ch 158 Baker v. Mellish, 11 Ves 106 Balcom v. N. Y. Life Ins. Co. etc. 11 Paige, Ch. It 161 Baldwin v. Mackown, 3 Atk 212 Balentiue v. Bcall, 3 Scam 400 Balfour v. WcUand, 16 Ves 334 Ball V. Shattack, 16 111 75 fl.'illniuc V. rnderhill, 3 Scam. 181, 305, 306 324 Banipton v. Birchall, 1 Phillips 247 Bank v. Carrollton Railroad, 11 Wall. 341 Bank of Columbia v. Hagner, 1 Pet 321 Bank of Maskingara v. Carpenter, Wright 49, 51, 100 Bank of Orleans v. Skinner, 9 Paige, Ch 61 Bank of Utica v. Messereau, 7 Paige, Ch. R 134 Bank, etc.. v. Dunyan, 2 Bland 401 Bank of South Carolina v. Rose, 1 Strobh. Eq 368 Bank of U. S. v. White, 8 Pet 254 Banks v. Anderson, 2 Hen. & M 251 Banta v. Bauta, 3 Edw. Ch 492 Banta v. Moore, 2 McCarter's N. J. R. . 100 Barbour v. Whitlock. 4 Mom- 64 Barksdale v. Payne, Riley, Ch 317 Barnard v. Cushman, 35 III 108, .359 Barnes v. Hazelton, 50 111 76 Barney v. Myers, 28 Iowa .390 Barns v. Dickinson, 1 Dev. Ch. R 254 Barnstead v. Empire Mining Co. 5 Cal. 338 Barring v. Xash, 1 Ves. & B 44 Barrington v. O'Brien, 2 Ball. & Beat.. 306 Barron v. Martin. 19 Ves ;B53 Barron v. Robhins, 22 Mich 536 Barron v. Bailey, 5 Florida -397 Barry v. Jenkins. 1 Mylnc & Craig 234 Barry v. Rogers. 2 Bibb 51, 65 Barstow v. Smith, Walk 101 Bartlett v. Bartlett, 1 Clarke, N. Y 517 Barton v. May, 3 Sandf. Ch. R 3.58 Barton v. Moss, .32 111 56, 142 Bascomb v. Bascomb, 5 Foster 488 Bascomb v. Bascomb, Wright, Ch 511 Bassett v. Brown. 100 Mass 46 Batchelder v. Batchelder, 14 N. U 498 Bate V. McLaughlin, 1 A. K. Marsh HI Bateman v. Willoc, 1 Sch. & Lef ^ Bates V. Delavan, 5 Paige 197 Bates V. Wheeler, 1 Scam 326 Batterson v. Ferguson, 1 Barb 1:J6 Bax V. Whitbread, 16 Ves 200 Baxter v. Hutchings, 49 111 577, 578, .579 Baxter v. West, 1 Drewry & Sm *J9 Bay V. Cook, 31 111 397 Bayerque v. Cohen, 1 McAllister 435 Beach v. Fulton, 3 Wend ISJ Beach vs. Shaw, 57 111 :»^ Beams v. Denham. 2 Scam 171 Beard v. Fowler, 2 Bond 98, 113 Bearden v. Wood, 1 A. K. Marsh 319 Beaubien v. Sabine, 2 Scam 74 Beanchamp v. Kankakee Co. 45 111 . . . 612 Beauchamp v. Putman. 34 111.. 193, 194, 312 313 Beaugenan v. Lercotte, Breese 47 Beaumont V. Boulbree, 5 Ves .57, 166 Beaumont v. Meredith, 3 Ves. & B.... .339 Bcchinall v. Arnold, 1 Vern 299 Beck V. Burdett, 1 Paige, Ch 397 Beckford v. Wade, 17 Ves 353 Beckwith v. Butler, 1 Wash. Va 186 Bedell v. Hoffman, 2 Paige, Ch. . . . 279, 292 Beekmau v. Frost, 18 Johns 359, 360 Beekman v. Waters. 3 Johns. Ch 16»> Bell V. Nims, 51 111 9t) Bell V. Pomeroy, 4 McLean 134, 26'.l Bellamy v. Bellamy, 4 Florida 199 Bellamy v. Jones, 8 Ves 294 Bellingall v. Gear, 3 Scam 75 Bellwood V. Wetherell, 1 Younge & Col. 315 Benedict v. Gilman, 4 Paige, Ch ,358 Benedict v. Lynch, 1 Johns. Ch. R 318 Benkert v. Benkert, 32 Cal 497 Benneson V. Thayer, 23 111 580 Bennett v. Lee, 2 Atk 2,54 Bennett v. Wolfolk, 15 Geo 269 Bennington Iron Co. v. Campbell, 2 Page, Ch. R 152, 169 Benson v. Le Roy, 4 Johns. Ch 398 Bentley v. Phelps, 2 W. & M ;i51 Bently v. Cournan, 6 Gill & J 15;l Benton v. Benton, 1 Day 487 Benzein v. Lovelass, Cam. & Nor 169 Berchett v. Boiling, 5 Munf 32;} Bercknians v. Berckmans, 2 C. E. Greene, N. J 514 Bergen v. Bergen, 22 111. . .513. 5H, 517, 522 523 Berger v. Potter, 32 111 102 Berkley v. Ryder, 2 Ves 314 TABLE OF OASES CITED. 661 Berryinan t. Graham, 21 N. J. Bq Beeimer v. The People, 15 111 Beeee v. Becker, 51 111 , Bettes V. Dana, 2 Sumner, R Betz V. Betz, 2 Rob. N. Y Biglow V. Bush, (i Paige, Ch. R Bio:nall v. Atkintf, Mad Billingslea t. Gilbert, 1 Bland Bingham v. Cabot, 3 Dall Bingham v. Dawson, Jacob Binks V. Binks, 2 Bligh Binney'6 Case, 2 Bland 139 Birch V. Haynes, 3 Mer Bird V. Bird, Wright, Ch Birdeall v. Colis, 2 Stockt. Ch Birkby v. Blrkby, 15 111 Hirley v. Staley, 5 Gill & J 43, Bishop V. Breckless, 1 Hoff. Ch BiBhop of London v. Webb, 1 P. Wms. Bishop of Winchester v. Wolgar, 3 S wanst Kiebop of Winchester v. Beaver, 3 Ves. . Bishop of Winchester v. Paine, 11 Ves Bishop V. Witherel, 9 Wall. U. 8 Blain v. Harrison, 11 111 Blaiedell v. Stevens, 16 Vt Blake v. Foster, 2 Molloy Blakeney v. Dufour, 15 Beav Blount V. Garen. 3 Hey Blunt v. Tomlin, 27 111 Board, etc. v. Grcenbaum, 39 111 Board of Supervisors vs. Henneberry, 41 111 ". Boeve v. Skipwith, 1 Eq. Ca, Ab Bogardns v. Trinity Church, 4 Paige, Ch 117, 118. 127, Bohan v. Galoway, 13 111 Bonner v. Peterson, 44 111 458, 467, lk)omer v. Cunningham, 22 HI Borton v. Scheffer, 21 Gratt. Va Boston V. Nichols ■. 88, Bolsford V. O'Conner, 57 HI 75, Bottorf V. Conner, 1 Blackf 103, Bougher V. Miller, Wright Bow V. Britten, 2 Chicago Legal News. Bowan V. Gross, 4 Johns. Ch Bowie V. Bowie, 3 Md. Ch. Decis Bowie V. Minter, 2 Ala 204, Bowles V. McAllen, 16111 426, Bowles V. South, Hardin Bowman v. McLaughlin, 58 Maine Bowman v. Wettig, 39 111 Bowman v. Wood, 41 111 Bowyer v. Bright, 13 Price Bowyer v. Pilchard, 11 Price Boyd V. Boyd, Harper, S. C. Eq Boyd v. Boyd, 06 Penn. St. R Boyd v. Hoyt, 5 Paige, Ch 49, Boyd V. Magruder, 2 Rob. Va Boyland, v. Boyland, 18 111 75 312 74 89 237 510 374 205 140 42 254 222 141 335 493 342 503 401 339 566 505 357 368 80 466 135 253 340 100 324 187 47 205 128 62 477 318 318 321 , 76 108 195 41 14;j 510 225 536 253 98 175 90 212 290 526 550 402 324 Boyles v. McMurphy, 55 HI 462 Boynton v. Rawson, 1 Clarke 403 Boze V. Davie, 14 Texas 323 Bozman v. Dronghan, 3 Stew 195 Bracken v. Kennedy, 3 Scam 338, 341 Bracken v. Martin, 3 Yerg 230 Bradford v. Geiss, 4 Wash. C. C. R. . . 134 BradifiU v. Gee, Ambl 200, 264 Bradshaw v. Outran), 13 Ves 355, 373 Bradshaw v. Garrett, 1 Porter 249, fHA Brady v. Anderson, 24 111 575, 580, 591 Brady v. Waldron, 2 Johns. Ch....564, 565 Brandleigh v. Ord, 1 .\tk 295 Brashier v. Gratz, 6 Wheat 319 Brattle v. Waterman. 4 Sim 172 Breckenridge v. McCormick, 43 111 613 Bree v. Bree, 51 111 89, 187 Brewer v. Bowman, 3 J. J. Marsh 250 Brewster v. Power, 10 Paige, Ch 397, 399 Brickerhotl" v. Brown, 6 Johns. Ch 105 Bridges V. Robinson, 3 Mer 333 Briggs V. Briggs, 20 Mich 503 Briggs v. Gear, 3 Gilm 253 Briggs V. Kaufman, 2 Mich. N. P .390 Briggs v. Morgan, 3 Phill 487 Bright v. Bright, 41 111 325 Briguardello v. Gray, 1 Wall. U. S. R.. 200 Brill v. Stiles, 35 111 99, ICO, 103 Brinckerhoflf v. Lansing, 4 Johns. Ch. . 368 Broadstreet v. Broadstreet, 7 Mass. . . . 492 Broadwell v. Broadwell, 1 Gilm 318, 323 Brockett v. Brockett, 3 How. U. S 190 Brockman v. Aulger, 12 111 183 Brockway v. Copp, 3 Paige, Ch 101, 1.3:J Broddus v. Ward, 8 Mo 320 Brook V. Mead, Walk. Ch 172 Brooks V. Barrett, 7 Pick 5.53 Brooks V. Byani, 1 Story 134, 135, 158 Brooks V. Gibbons, 4 Page, Ch. . . . 105, 401 Brown v. Bell, 4 Hey 306 Brown v. Brown, 1 Hagg 487 Brown v. Brown, 22 Mich 5.33 Brown v. Cannon, 5 Gilm 319. .322 Brown v. Edsall, 1 Stockt. N. J 269 Brown v. Gafincy, 28 111 351 Brown v. Qaftney , 32 111 359 Brown v. Hart', 5 Paige, Ch ood, 557 Brown v. Haines, 12 Ohio 319 Brown v. Higden, 1 Atk 20:1 Brown v. Hoglc. 30 111 100. 101 Brown v. McDonald, 1 Hill, Ch 57 Brown v. Moore, 26 111 583 Brown v. Pitney, 39 111 468 Brown v. Powell, 45 Ala 98 Brown v. Ricketts, 3 Johns. Ch 402 Brown v. Welch, 18111 165 Brownfield v. Brownfield, 43 111 549 Brownfleld v. Brownlleld, 58 111 014 Browning v. Bettis. H Paige, Ch 399 Brownlee v. Lockwood, 20 N. J. Eq. . . . 100 662 TABLE OF CASES CITED. Browusoii V. La Crosse & Milwaukee K. R. Co. 2 Wall. U. S 313 Bro\vn*>\vord v. Edwardb, 2 Ves. .. 105, 130 Bruen v. Biuen, 43 111 45 Bruere v. Wharton, 7 Sim 350 Brnnnenmeyer v. Biihrc, 32 III 570 Brush V. Vandenberg, 1 Edw. Ch 323 Bryan v. Blythp, 4 Blackf 50 Buchanan v. Hart, 31 Texag 570 Buchtt-r V. Dew, 3<) 111 583 Buck V. Beekly . 45 111 92, 614 Buckholtz V. Buckholtz, 24 Geo 509 Buckingham v. Peddicord, 2 Bland — 135 Buckland v. Goddard, 3(1 111 96 Buckley v. Corae, Saxon, N. J 164 Buckley v. Starr, 2 Diy 49 Buffalow V. Buflalow, 2 Ired. Ch... . 48, 102 Bugbee V. Sargeant, 23 Maine 49, 65 Bulkley v. VanWyck, 5 Paige, Ch 141 Buloid V. Milk'i-, 4 Paige, Ch. R.. . 158, 161 Buntain v. Wood, 2'J 111 142 Burch V. Brown, 46 Mo 550 Burden v. Burdell, 2 Barb 510 Burger v. Potter, 32 111 115 Burgess v. Wheate, 1 Blacks 308 Burke v. Smith, 15 111 164, 165, 203, Burkeley v. Dunbar, 1 Anst. R Burkhart v. Reisig, 24 111. . . . 576, 579, Burn V. Poang, 3 Dessau Burnett v. Anderson, 1 Mer 280, Burnett v. Lester, 53 111 49, 51, Burnett v. Sanders, 4 Johns. Ch. R. Berney v. Chambers, Bumb Burncy v. Morgan, 1 Sim. & Stu Burnhani v. Rangeley, 1 W. & M. C. C.R. Burnley v. Jeffersonville, 3 McLean . . . Burr V. Burr, 7 Hill, Ch Burr V. Burr, 10 Paige, Ch 526, Bnrrall v. Raineteaux, 2 Paige, Ch. R. . Barren v. Leslie, 6 Paige, Ch Burroughs V. Oakley, 3 Swanst... 3.33, Burrows v. Taylor, M'^right Btirt V. Rynex, 48 Mo Burtis V. Burtis, 1 Ilopk. Ch Burton v. Black, 32 Geo Burton v. Todd, 1 Swanst Bust! eld V. Solomons, 9 Ves Bush V. Connelly, 33 111 BuBhnell v. Bibhop nill Colony, 28 HI. . Butler V. Catling, 1 Root Buttrick v. Holden, 13 Met Byrne v. Byrne, 3 Texas 205 153 591 249 283 102 277 278 152 400 115 1.35 532 532 151 403 a34 228 189 487 280 333 314 591 175 133 321 503 Cabeen v. Gordon, 1 Hill, Ch 318 Cadwallader v. Granville Alex.indrian Society, 11 Ohio 405 Cady V. Porter, 55 Barb. N'. Y. 279, 280, 881 Caldwell v. Blackwood, 1 Jones, N. C. Eq 105 Caldwell v. Boyer, 3 Atk 306 Caldwell v. Myers, Hardin ;J22 Calhoun v. Powell, 42 Ala 103 Caller v. Shields, 2 Stew. & Port. 249, 251 352, 25:1 Calmes 7. Ament, 1 A. K. Marsh 250 Calverley v. Williams, 1 Ves. Jr 308 Camblat v. Tapcry , 2 La. An 340 Campbell's Case, 2 Bland 403 Campbell v. Hannan, 43 111 18;} Campbell v. McCanham, 41 111 538 Campbell v. Misier, 4 Johns. Ch 20t Campbell v. Morrison, 7 Paige, Ch 61 Campbell v. Solomons, 1 Sim. Ensign v. Colburn, 11 Paige, Ch 565 Ensworthv. Lambert, 4 Johns. Cb. . 205-20t) 373 Errington v. Attorney General, Bumb. SSJ Errissman v. Erriesraan, 25 111 — 512, 523 Estabrook v. Ilapgood, 10 Mass 478 Estep V. Walking, 1 Blaiul 42, 45 Eubank v. Hampton, 1 Dana 320 Evans V. Billings, 5 Ala 166 Evans v. Clement, 14 HI 251, 252, 253 Everett v. Winn, 1 S. M. Ch. R 168 Ewins V. Gordon, 49 N. H 318 Executors, etc. v. Roberts, 1 Wash. C. C.R 128 E3' parte Broadbent, 1 Mont. & A 340 Ex parte Dunham, 29 Leg. Int 404 -Ex parte McElvvain, 29 111 464 Ex parte Smith, 16 III 557 Ex parte Tunno, 1 Bailey, Ch 570 Eyere v. Dolphin, 2 Ball & B 129 F Fahs V. Roberts, 54 HI 203 Fairthorne v. Weston, 3 Hare 341 Fallon V. Railroad Co. 1 Dillon 321 Fallowes V.Williamson, lives. 229,233, 234 Falls V. Carpenter, 1 Dev. & Bat. Ch.. 320 Fancher V. Ingrahara, 6Blackf.... 100, 101 Farebvother V. Prattent, Dan. R... 282, 289 Farley v. Blood, 10 Poster 279 Farmers' Loan & Trust Co. v. Seymour, 9 Paige, Ch. R 229 Fai nsworth v. Agnew, 27 111 96 Farusworth v. Strasler, 12 HI 182 Fanant v. Lovell, 3 Atk 563-564 Farrai v. McKee,36 111 171 Farrell v. Parlier, 50 HI 385 Favwell v. Meyer, 35 111 165 Fash V. Blake, 38 111 177 Fawkes v. Pratt, 1 P. Wms 58 Fay V. Jewett. 3 Edw. Ch 160 Feary v. Stephauson, 1 Beav. Ch. Pr. . . 206 Fekh V. Hooper, 20 Maine 65 Fell V. Brown, 2 Bro. Ch. R 356 Fellows V. Fellows, 4 Cowen 135, 402 Fellows V. Fellows, 8N.H 502, 503 Fellows V. Shelmirc, 5 Blackf 88, 89 Ferfmson V. Ferguson, 3 Sandf. Ch. .. 492 Ferguson v. Paschall, 11 Miss 322 Ferguson v. Sutphan, 3 Gilm 88 Ferris v. Ferris, 8 Conn 488 Ferris v. McClurc, 36 111 306 Field V. Jackson, 2 Dick 565 Field V. Ross, 1 Monroe 197 Field V. Schicflfclin, 7 Johns. Ch. . 307, 312 313, 314 Finch V. Lord Winchelsea, 1 Eq. Ca. Ab 227, 228 Finch V. Martin, 19 111 . 63 Findlay v. Smith, 6Munf 564 Fish V. Miller, 5 Paige, Ch 137 Fisher v. Fisher, 54 111 75, 76, 144, 183 Fisher v. Fisher, 32 Iowa 5;« I Fisher v. Stone, 3 Scam 45, 103, 556 Fishli V. Fishli, 2 Litt 533 Fitch V. Boyd, 55 HI 317, 318 Fitch V. Creighton, 24 How. U. S 49 Fitts V. Davis, 43 111 535, 5;J9 Fitzhugh V. Lee, Amb 296 Fitzpatrick v. Beatty, 1 Gilm 331 Fitzpatrick v. Bcaty, 1 Gilm 44, 137 Flack V. Holm, 1 Jac. & Walk 555 Flagler v. Crow, 40 111 250 Flint v. Field, 2 Anst 43, 44, 5;J Fleece V. Russell, 13 HI 313 Fleetwood v. Green, 15 Ves 334 Fletcher v. Holmes, 32 Ind 374 Fletcher v. Wilson, 1 S. & M. Ch.. 306, 307 Flinn v. Owen, 58 111 547, 548 Fludyer v. Cocker, 12 Ves 334 Fogg V. Johnston, 27 Ala 339, 340 Foley V. Hill, 4 Milne & Craig 131 Fonda v. Sage, 48 N. Y 536 Foot v. Van Raust, 1 Hill, Ch. R 186 Foote V. Foote, 22 111 523 Forbes v. Whitlock, 3 Edw 104 Ford V. Ford, 104 Mass 508 Ford V. Peering, 1 Vee. Jr 99 Forman v. Hanfray, 2 Ves. & B. . . 340, 341 Forney v. Ferrell, 4 W. Va 549 Forni v. Tessou, 51 111 ,. . . . 613 Forrest v. Forrest, 3 Abbott, N. Y.'. . . . 5:« Forrest v. Forrest, 5 Uosw 533 Forrest v. Robinson, 4 Porter, Ala 108 Forsyth v. Baxter, 2 Scam 181 Forth V. Town of Xenia, 54 HI. . . . 187, 614 Foes V. Haynes, 31 Maine 13;J Foster V. Deason. 6 Mad. R 218 Foster v. Hodgson, 19 Ves 102, 2(« Foster v. Hunt, 3 Bibb 167 Foster v. Swascy , 2 W. & M. C. C 103 Fowler v. Fowler, 4 Abbott, N. Y 518 Fowler v. Lewis, 3 A. K. Marsh 114 Fowler v. Sanders, 4 Call 45 Fraglcr v. Crow, 40 111 200 Frame V. Frame, 16 111 200 Francisco v. Hendricks, 28 111 464 Franklin v. Keeler, 4 Paige, Ch 161 Franklin v. Wilkinson, 3 Munf 351 Fraser v. Hart, 2 Strobh. Eq 47 Erasure v. Ziramerly, 25 111 97 Freake v. Horsley, 2 Freem 373 Freeman \ . Freeman, 43 N. Y 334 Freeman v. Kcagau, 26 Ark 47 French v. Creath, Breese 31 French v. Dear, 5 Ves 60 TABLE OF CASES CITED. 667 Frisbie v. Ballanco, 4 Scam 318 Fryrear v. Lawrence, 5 Giiiu 142 Fnllci- V. Gibson, 2 Cox 28;i Fulton V. Railroad Co. 1 Dillon 323 Fulton Kank v. Beach, « Wend 140 Fulton Bank v. Beach, 3 Paige, Ch. R. . 140 Fulton Bank v. N. Y. & S. Canal Co. 4 I'aige, Ch 203 Furman v. Coe, C. C. E 250 G Gads^den v. Lord, 1 Dessau 269 98 Green v. Ma.-sie, 21 (iratf. Va 2»;S Green v. Mumford. 4 R. 1 279 Grcenleaf v. McDowell, 4 Ired. Eq. R.. 219 Greenman v. Ilai vey. .53 111 76 Greenougb v. Gaskell, 1 Mylnc vard v. Carroll. 4 Bar. & J.. .. 42, 45 TABLE OF CASES CITED. »5r)9 Hcacock V. Dnrand, 42 111 164, ;J97 Heartt v. Corning, 3 Paige, Ch. 114, 126, 129 Heath v. Erie R. R. Co. 8 Blatchf . . 99. 100 Heath v. Erie R. R. Co. 9 Blatchf 268 Heddcn v. Hedden, 6C. E. Greene, N. J. 492 Hedrick v. Hem, 4 W. Va 325 Hees V. Yoss, 52 111 144, 182 Henden v. Heuden, 6 C. E. Greene. ... 492 Henderpon v. Curamings, 44 111 102 Henderson v. Haj-s, 2 Watts 317 Heun V. Walsh, 2 Edw. Ch 338 Henry v. Da\-ig, 7 Johns. Ch 3.58 Henry Co. v. Winnebago Drain Co. 52 111 47. 102 Henser V. Harris, 42 111 5*9 Hepburn v. Auld, 5 Cranch 321 Hepbnrn v. Dunlap, 1 Wheat 334 Herbert v. Hobb.', 3 Stewart 45 Hercy v. Dinwoody, 2 Yes. Jr 234 Herrington v. Hubbard, 1 Scam 62 Hester v. Hooper, 7 S. &. M 318 Hester V. Weston, 1 Yern 106 Hewett V. Dement, 57 111 161 Hickenbotham v. Blackledge, 54 HI. . 62, 100 101, 145, 428. 438 Hickey v. Forristal, 49 El 107 Hickman v. Cooke, 3 Humph 50 Hickman v. Haines. 5 Gilm 37, % Hickson v. Aylward, 3 MoUoy 314 Hiern v. Mill, 13 Yes 57 Higgcn V. Ferguson, 14 111 578 Hildyard v. Cressy, 3 Atk. 128, 1.31, 132, 152 Hill V. Adams, 2 Atk 357 Hill V. Bishop, 25 HI 576 HiU V. Hili. 10 Ala 5ft3 Hilliard v. Scoville, 42 111 427 Hilliary v. Hurdle, 6 Gill .57 Hilton V. Barrow, 1 Yes. Jr .305 Hindman v. Taylor, Dick. R 275 Hitchell V. Hayne, 2 Sim. Sim 391 Mason v. Mason, 1 Edw. Ch 526 Mason v. Wallace, 3 McLean 320 Massie v. Graham, 3 McLean 249, 254 Massie v. Grant. 3 McLean 2.54 Master v. Kirton, 3 Ves 340 Master v. Master, 15 N. II 509, 510 Masterson v. Craig, 5 Litt 139, 141 Masterson v. Wiswoid, 18111.. 89, 144, 145 Matchin v. Matchin, 6 Barr 492 Matter of Hutchkins, 7 Phil. Pa. R. . . . .550 Mattocks V. Tremain, 3 Johns. Ch .560 Matt ox V. Mattox, 2 Ham 491, 5 JO Mauck V. Mauck, 54 111 199 Maude v. Rodes, 4 Dana 339 Maury v. Lewis, 10 Yerg 46 TABLE OF CASES CITED. 673 Maury v. Mason, 8 Porter 195 Maxwell v. Finnic, 6 Coldw. Tenn. ... 570 Maxwell v. Kennedy, 8 How. U. S. 99, 102 May V. Armstrong, 3 J. J. Marsh 307 May V. Parker, 12 Pick 54 Mayer v. Mayer, 6 C. E. Greene, N. J. . 493 Maynard v. Moseley, 3 Swanst 200 Mayor of London v. Levy, 8 Ves 101 Mazareddo v. Maitland, 3 Mad. R 27fi McArtee V. Engart, 13 El 165 McCagg V. Heacock, 42 111 1.38, 306 McCall V. Yard, 1 Stockt. N. J .373 McCalmont v. Lawrence, 1 Blatchf. C. C. R 401, 403 McCann v. Dorsheimer, 1 Clarke 399 McCarklc v. Brown, 9 S. & M 321 McCarter v. Carter, 49 111 577 McClay v. Norris, 4 Gilm. 89, 144, 145, laS McClellan v. Darrah, 50 111 318 McCloskcy v. McCormick, 44 111 ... . 98, 104 McClurg V. Phillips, 40 Mo ;389 McClurpen v. Detrich, 33 HI 318 McComas v. Easley, 21 Gratt. Va 317 McComas v. Minor, Walker 167 McConnel v. Gibson, 12 111 47 McConnel v. Dickson, 43 111 397 McConnel v. Smith, 23 111 226 McConnell v. Ay res, 3 Scam 612 McConnell v. Hodson, 2 Gilm 138 McConnell V. Holobush, 11 111... 51, 60, 95 160 McConnell v. McConnell, 11 Vt 62 McConnell v. Smith, 27 111 189 McConnices v. Moseley, 4 Call 194 McCormick V. Wheeler. 36 111 200 McCosker v. Brady, 1 Barb. Ch 569 McCrackin V. Finley, 1 Bibb 253 254 McCullom V. Turpie,32Ind 390 McDaniel v. Canell, 19 111 145 McDaniel v. James. 23 111 249. 250 McDerraot v. Blois, Charl. R. M 397 McDermaid v. Russell, 41 111 145 McDonald v. McDonald, 16 Vt.... 134. 135 McDonald v. Starkey, 42 111 570 McDonough v. Shewbridge, 2 Ball ', 5 Paige, Ch. R 161 Norway v. Rowe, 16 Ves 340, 565 Novoseilski v. Wakefield, 17 Ves 368 Noyes v. Sawyer, 3 Vt 167 Nugent V. Locke, 4 Cal 338 N. Y. Dry Dock Co. v. Am. Life Ins. Co. 3 Saadf. Ch 306 O'Brien v. Connor, 2 Ball & Beat. . 252, 262 O'Connell v. Rca, 51 111 37 O'Conner v. Wilson, 57 111 538 Odom V. Odom, 36 Geo 502, 509 Ogden V. Larrabee. 57 111 103 Ogle Ship, 1 A. K. Marsh 359 Ohio V. Baum, 6 Ham 318 Ohio V. Ellis, 10 Ohio 51 Ohling V. Lnitjens, 32 111 46, 89. 374 Oldaker v. Lavender, 6 Sim 339 Oldham v. Eboral, Coop. Select Cas. . . 212 Oliver v. Crosswell, 42 111 321 Oliver v. Palmer, 11 Gill & J. . . . 42, 47, 62 Oliver v. Piatt, 3 How. U.S. 48, 49, 102, 375 Onions v. Tyner, 1 P. Wms 200 Onslow v. , 16 Ves .563 Orcott V. Orms, 3 Paige, Ch 130 Ord V. Huddleston, 2 Dick 116, 127 Ord V. Noel, 6 Mad 25:3, 254 Organ V. Gardner, 1 Cas. in Ch 222 Orton V. Smith, 18 N. H 535 Osborne v, Bremar, 1 Dessau 320 Osborne v. Horine, 19 111 466 Oeborue v. Usher, 6 Bro. P. C 255 Osboum V. Fallows, 1 Russ. & Mylne. . 356 Osgood V. Osgood, 2 Paige, Ch 518 Ottowa N. P. R. Co. v. Murray, 15 111.. 371 Ottowa V. Walker, 21 111 88 Overman v. Parker, Hemp 635 Owen V. Robbins. 19111 458 Owene v. Ramstead, 22 111 186 P Packington v. Packington, 3 Atk 564 Page V. Davidson, 22 Dl 566 Palk v. Clinton, 12 Ves 356, 557 Palmer v. Earl of Carlisle, 1 Sim. & Stu. 355 Palmer v. Van Doren, Edw. Ch 556 Pandleton v. Fay, 3 Paige, Ch 226 Pankey v. Raum, 51 El 186, 189, 5.53 Panton v. Tef t, 22 lU 56, 142 Parbridge v. Hay craft, 11 Ves... 53, 54, 158 Parbridge v. Jackson, 2 Edw. Ch 60 Pardee v. De Gala, 7 Paige, Ch 5(M Pardee v. Van Auken, 3 Barb. R :i5-i Pari.sh v. Lewis, 1 Freem. Ch :397 Park v. Ballentiiie, 6Blackf 62, 167 Parker v. Aloch, 1 Young & Jer 108 Parker v. Carter, 1 Miinf 43, 45, 46 Parker v. FoUensbee, 45 111 557 Parker v. Grant, 1 .lohus. Ch 90 Parker v. Leigh, 6 Mad 305 Parker v. Parker, 61 111 508, 52:J Parker v. Parker, 4 M unf 55 Parkhnrst v. Cummingis, 56 Maine :J.5!* Parkins v. Hays, Cooke, Teun 164-16."> Parkin.xon v. Truesdale, 3 Scam 140 Parkman v. Welch, 19 Pick 388 Parmelee v. Egan, 7 Paige, Ch 401 Parmelee v. Lawrence, 44 HI 351 Parrington v. Pierce, 3S Maine 351 Partridge v. Usborne, 5 Rus 256- Pastoiet v. Pastoiet, 6 Mass 510 Paterson v. Slaughter, Amt 152 Paton v. Rogers, 6 Mad :J.34 Patriotic Bank v. Bank of Washington, 5 Cranch, C. C. R 158 Pattisou v. Powers, 4 Paige, Ch :J75 Pavie v. A'Court, 1 Dick 117 Paxtou V. Harrier, 11 Penn 388 Payne v. .Vvery, 21 Mich 129, 390 Payne v. Cowan, 1 S. & M 307 Payne v. Frazier, 4 Scam 171 Payne v. Hook, 7 Wallace 50 Pay ton v. McDowell, 3 Dana 522 Peabody v. Peabody, 101 Mass 502 Peacock v. Terry, 9 Geo 4.3 Peakv. Pricer, 21 HI 144 Pearson V. Ward, 1 Cox 296 Peck V. Ashley, 12 Met 269 Peck V. Shasted, 21 111 145 Peckford v. Peckford, 1 Paige, Ch 532 Peckham v. Barker, 8 R. I :325 Pedrick v. White, 1 Met 204, 210 Peiters v. Thompson, Coop 138 Pell V. Elliot, Ilopk. Ch 227 Pendleton v. Fay, 3 Paige, Ch. 2.33, 246, 247 254 Penfold V. Nunn, 5 Sim 99 Pennebaker v. Watham, 2 A. K. Marsh. 45 Pennington v. Beachy. 2 Sim. & Stu. . . U3 Peoples V. Peoples, 19 111 98 People, etc. v. Gilmer. 5 Gilm bl4 Ferine v. Dunn, 4 Johns. Ch 368 Perry v. Perry, 2 Paige, Ch 487. 526 Perry v. Phelips, 17 Ves 254 Persoiiau v. Pulliam. 47 111 149 Petrie v. The People, 40 HI 517 Pettis V. Shepherd, 5 Paige, Cb 536 Pettit V. Candler, 3 Wend 185 Peyton v. JetTries, 50 111 4TT Phelftn V. Phclan, 12 Florida. 497 '676 TABLE OF CASES CITED. Phelps V. Foster, 18111 612 Phelps V. Ganon, 3 Edw. Ch 114 Phelps V. Loyhed, 1 Dillon 390 Phelps V. Sproule, 4 Sim 219, 230, 243 Phelps V. White, 18 111 56, 142 Phelps V. Young, Breese (Becher's Ed.) 181 Phillips V. Berger, 2 Barb. K 322 Phillips V. Carew, 1 P. Wms 296 Phillips V. Darbe, 1 Dick 2:39 Phillips V. Overton, 4 Hey 1.3.5 Phillips V. Phillips, 4 Blackf 509 I'hiUips V. Prevost, 4 Johns. Ch 133 Phillips V. Stone, 25 111 591 Phoenix v. Clark, 2 Halst. Ch 564 Phy V. Clark, 35 111 177 Piatt V. Oliver, 1 McLean 114, 117, 1.30 Pidgeon v. Trustees, 44 111 89 Pierce v. Pierce, 3 Pick 492 Pierce v. West, 3 Wash. C. C. R 169 Pierpont v. Fowle, 2 Woodbury & Mi- not"6 R 99 Piersall v. Elliott, 6 Pet 95 Pigg V. Corder. 12 Leigh 195, 318, 321 Piggott V. Williams. 6 Mad 305 Pigott V. Bagley, McClel. &Y 341 Pillow V. Aldridge, 4 Hump 289 Pilsworth V. Hopton, G Yes 565 P. & M. Bank v. Dundas, 10 Ala 254 Plnkard v. Pinkard, 14 Texas 497 Pinson v. Williams, 23 Miss 43 Pitt V. Davis, 3 Russ 333 Pitt V. Earl of Argloss, 1 Vern.... 263, 265 Plaster v. Plaster, 47 HI 523 Plaster v. Plaster, 53 111 523 Piatt V. Judson, 3 Blackf 88, 89, 397 Pleasants v. Glasscock, 1 S. & M. Ch.. 57 Plummer v. May, 1 Vern 103 Plunket v. Penson, 2 Atk. R 275, 325 Pogson V. Owen, 3 Dessau 63 Pogue V. Clark, 25 111 104 Polk V. Clinton, 12 Ves 58 Polt V. Gallini, 1 Sim. & Stu 22:3 Pope V. North, 33 111 374 Pope V. Salsman, 35 Mo 340 Poritt V. Poritt, Ki Mich 499 Portarlington v. Soulby, 6 Sim 99, 276 Porter V. Ewing, 24 111 458 Potier V. Barclay, 15 Ala 204 Potter V. Potter, 71 111 548 Power V. McCord, 36 111 580, 583, 584 Powys V. Blagrave, 27 Eng. Law & Eq. R 563 Prater v. Miller, 3 Hawks 318, .321 Prather v. Prathcr, 4 Dessau 557 Pratt V. Brett, 2 Mad 563, 566 Pratt V. Carroll, 8 (ranch 320 Prentice v. Kimball, 19 111 62, 65, 102 Preschbaker v. Feaman, 32 111 350 Prescott V. Maxwell, 48 111 591 President, etc. v. S. 111. N. Uni.. 54 111. 103 Preston v. Ilodgen, 50 111 89, 182, ISr Prettyman v. Wolston, 34 111 175 Price V. Nesbit, 1 Hill, Ch 196 Prieto V. Duncan, 22 HI 77 Primmer v. Patten, .32 111 44, 270 Prince v. Prince, 1 Rich. S. C. Ch 5.32 Princess of Wales v. Earl of Liverpool, 1 Swanst 96 Pruen V. Lunn, 5 Russ 2:J7 Purfoy V. Purf oy, 1 Vern 48 Purris v. Brown, 4 Ired. Eq 353 Puryear v. Ruse, 6 Coldw. Tenn 550 Putnam v, Putnam, 4 Pick 225 Q Quarrier v. Carter, 4 Hen. & M. . . . 198, 249 Questel v. Questel, Wright, Ch 511 Quick V. Tilley, 2 Green, Ch 25:3 Quigley v. Roberts, 44 111 89, 145, 187 Quincy v. Quincy, 10 N. H 509 Quinn v. Green, 1 Ired. Ch 281 Quinn v. Patton, 2 Ired. Ch 281 Quinn v. Roath, 37 Conn 318 R Racine & Miss. R. R. Co. t. Farmers' Loan & Trust Co. 49 HI 375, 388 Railroad Co. v. Cowles, 32 HI 181 Ramero v. Rawlins, Finch 103 Ramkissenseat v. Barker, 1 Atk 315 Kamsey v. Liston,25 111 324 Randolph v. Dickerson, 5 Paige, Ch. R. 247 Randolph v. Emerick, 13 111 37, 97 Randolph v. Randolph, 1 Hen. & M. . . . 253 Raper v. Saunders, 21 Gratt. Va 57 Raymond v. Ewing, 26 111 582, 583, 591 Raj-mond V. Fisher, 45 Miss 253 Read v. Long, 4 Yerger 323 Read v. Read, 1 Ch. Ca 557 Reavis v. Reavis, 1 Scam 497 Reboul's Heirs v. Behrens, 5 La. An. . . 61 Rector V. Rector, 3 Gilm 175.318 Reddick v. State Bank, 27 111 144 Reed V. Johnson, 24 Maine 45 Reed v. Kempf, 16 111 312 Reed v. Reed, Wright, Ch 497 Reed v. Tyler, 56 111 536, 5.39 Reed v. Warner, 5 Paige, Ch. R 140 Reed v. Wheaton, 7 Paige, Ch 404 Reese v. Reese, 23 Ala 509 Reeves v. Adams, 2 Dev. Ch 64 Reid v. Vanderhcyden, 5 Conn 64 Reigard v. McNeil, :38 111 183, 351 Renu V. Lamon, .33 Texas 548 Renwick v. Wilson, 6 Johns. Ch 166 Respassv. McClanahan, Hardin... 250, 253 Khoads v. Rhoads, 43 111 144, 549 Rhode Island v. Massachusetts, 15 Pet. 99 TABLE OF CASES CITED. 677 Ribet V. Ribet, 39 Ala 491, 510 Rice V. Barnard, 20 Vt 397 • Rice V. Hathaway, 18 111 91 Richards v. Hyde, 21 111 37 Richards v. Richards, Wright, Ch 493 Richards v. Salter, 9 Johns. Ch 280 Richardson v. Baker, 5 Cal 320 Richardson v. Hastings, 7 Beav 341 Richardson v. Prevo, Breese 94 Richardson v Thompson, 41 111 74, 76 Ricketts V. Ricketts, 4 Gill 511 Ridgeley \. Warfleld, 1 Bland 118 Riggs V. Dickinson, 2 Scam 448 Riggs V. Wilton, 13 111 190, 548, 553 Ringgold V. Ringgold, 1 Har. & G 195 Ripley v. Morris, 2 Gilm 37, 96 Ripple V. Gilbourne, 8 How. U. S 429 Ritchie v. Aylwiu, 15 Ves 114 Rives V. Rives, 3 Ves 61 Roach V. Chapin, 27 111. . . . 88, 106, 578, 591 Roach V. Hulings, 5 Cranch. C. C 60 Roath V. Smith, 5 Conn 373 Robbins v. Kiuzie, 45 111 466 Roberdean v. Rous, 1 Atk 105 Roberts v. AJbaay & West Stockbridge R. R. Co. 25 Barb 403 Roberts v. Clayton, 3 Anst 106 Roberts v. Fahs, 32 111 37, 96 Roberts v. Fleming, 53 111 353, 428 Roberts v. Marchant, 1 Hare 325 Roberts v. Roberts, 16 Sim 219 Robertson v. Bingley, 1 McC. Ch.. 100, 134 Robertson v. Lubback, 4 Sim 114 Robertson V. Southgate, 5 Hare, R 218 Robins v. Abrahams, 1 Halst. Ch 139 Robinson v. Cathcart, 2 Cranch, C.C .. 323 Robinson v. Farelly, 10 Ala 358 Robinson V. Robinson, 2 Ves 223 Robinson v. Sampson, 26 Maine 254 Robinson v. Smith, 3 Paige, Ch. . . . 63, 102 Robinson v. Woodgate, 3 Edw. Ch 134 Rodgers v. Rodgers, 1 Paige, Ch... 165, 168 Roe V. Taylor, 45 111 548 Rogan v. Walker, 1 Wis .358 Rogers v. De Forrest, 3 Edw. Ch 168 Rogers v. Patterson, 4 Paige, Ch 227 Rogers v. Saunders, 16 Maine 319, 32:3 Rogers v. Vines, 6 Ired. Ch 533 Rogers v. Ward, 23 111 591 Rootham v. Dawson, 3 Anst 61 Rose V. Gannell, 3 Atk 297, 299 Rose V. Rose, 11 Paige, Ch 511, 517 Rose V. Swan, 56 111 320 Ross V. Cobb, 48 111 426, 427 Ross V. Union Pacific R. R. Co. 1 Wool. 322, 323 Roundtree v. McLain, 1 Hemp 322 Rowe V. Tweed, 15 Ves 113, 114 Rowland v. Gorman, 1 J. J. Marsh 65 Rowley v. James, 31 111 591 Rowraan v. Bowles, 19 111 . ; 441 Rubber Co. v. Goodyear, 9 Wallace 254 Ruckerv. Dooley, 49 111 5;J5, 538, 5.39 Ruff V. Starke, 3 Gratt. Va 197 Ruggles V, S. M. R. R. Co. 5 Chicago Legal News 371 Russell V. Clark, 7 Cranch 61, 267, 278 Russell V. Ely, 2 Black 350 Russell V. Loscombe, 4 Sim 340, 341 Russell v. Payne, 45 111 188, 189 Russell V. Rogers, 56 111 614 Russell V. Rumsey, liS 111 4t>4 Russell V.Russell, 54 111 56, 142 Russell V. Topping, 5 McLean 350 Russell v. Waitc, Harring. Ch 90 Rust v. Mansfield, 25111 142 Ryan v. Jones, 15 111 397 Ryan v. Trustees, etc. 14 111 49 Rylands v. Latouche, 2 Bligh. 222, 242, 247 S Sackville v. Ayleworth, 1 Vern 295 Sagory v. Wissman, 2 Benedict 385 Sale V. Fiske, 54 111 92 Sailers v. Tobias, 7 Johns 114 Salmon v. Clagett, 3 Bland 140, 565 Saltmarsh v. Bower, 22 Ala 161 Samanda v. Furtado, 3 Bro. C. C 234 Samuel v. Wiley, 50 N. H 556 Sanders v. King, 6 Mad 113 Sanquirico v. Benedetti, 1 Barb 322 Saunders v. Frost, 5 Pick 358 Saunders v. Leslie, 2 Ball & B 129 Savage v. Smalebroke, 1 Vern 106 Savery v. Spence, 13 Ala 322 Saxon V. Barksdale, 4 Dessau 100 Sayle v. Graham, 5 Sim 214 Scales V. Labor, 51 III 90,91 Schnebly v. Schnebly , 26 111 458, 475 Schneider V. Seibert, 50 HI... 201, 426, 43Z Scholcs V. Ackerland, 13 EI 181 School, etc. V. Miller, 54 111 46- School Trustees v. Wright. 12 111 102 Schwartz v. Saunders, 46 III 577, 578 Schwarz v. Sears, Walk. Ch 306. Schwarz v. Wendell, Harring. Ch 119 Schyler v. Pelissier, 3 Edw. Ch 280' Sconce V. Whitney, 12 111 144, 145 Scott V. Barker, 14 Ohio 320 Scott V. Bennett, 1 Gilm 65 Scott V. Moore, 3 Scam 62 Scott V. Ondendonk, 14 X. Y 635 Scott V. Shepherd, 3 Gilm 319, 326 Scott V. Wallace, 4 J. J. Marsh 397 Scott V. Whitlow, 20 III 47 Scoville V. Billiard, 48 111 427 Screven v. Bostwick, 2 McCord, Ch. . . . 397 Scrimeyer v. Buchannon, 3 A. K. Marsh. 51 Scruggs V. Blair, 44 Miss l"'^ 678 TABLE OF CASES CITED. Scndder v. Young, 25 Maine 57, 58 Seaga v. Ilarrisoii, -12 Gi'0 46 Sea Insurance Co. v. Diiy, i» Paige, Cl». 171 Sebrinj; v. Mersuieau. ilopk 427 Sedam v. Williarasi, 4 McLean 49 Sceley v. Boehn, 2 ^[ad 52 Seigliortner v. Weissenborn, 5 C. E. Green 342 Sellen v. Lewen, 3 P. Wms 130 Seltz V. Uuna, t) Wall 44 Senior V. Brebnar, 22 111 579 Seton V. Slade, 7 Ves 334 Sevier v. Magguire, 49 111 249 Seymour v. Delanccy, (> Johns. Ch. R. 317, 318 Seymour v. Hazard, 1 Johns. Ch 556 Shackell v. Macauley, 2 Sim. & Stu. . . . 299 Shaeffer v. Weed, 3 Gilm. 170, 577, .581, 582 591 Shaffer v. Sutton, 49 111 614 Shaver v. Woodward, 28 111 351 Shaw V. Chester, 2 Edw. Ch 286, 288 Shaw V. Coster, 8 Paige, Ch. 280. 281, 28;^ 286 Shaw V. Livermore, 2 Green, N. J. Ch. 321 Shaw V. Shaw, 17 Conn .502 Shay V. Norton, 48 HI 536, 537 Shed V. Garfield, 5 Yt 375 Shelby v. , 13 Ves 294 Sheldon v. Hardin, 44 111 45 Sheldon v. Patterson, 55 111 385 Sheldon v. Robbine, 2 Root 45 Shell V. Shell, 2 Sneed, Tenn 502 Shepard v. Shcpard, 6 Conn 44 Shepherd v. Lame, 6 Munf 263 Shepherd v. Lloyd, 2 Y. & Jerv 106 Shepherd v. Shepherd, 1 Md. Ch. Decis. 323 Shepherd v. Titley, 2 Atk 223 Sheppard v. Starke, 3 Munf 57 Sheriff'/. Oil Co. 7 Phil. Pa. R 49 Sherman v. Partridge, 4 Duer 279 Sherman x. Sherman, 18 Texas 506 Sherrington v. Smith. 2 Bro. P. C 263 Shields v. Bryant, 3 Bibb 89 Shillinger v. Shillinger, 14 111 513 Shirley v. Ferrers, 3 P. Wnis 295, 296 Shortall V. Mitchell, 5T 111 319 Shotwell V. Smith, 20 N. J. Eq 267 Shubrick v. Shubrick, 1 McCord, Ch... 401 Sibert V. McAvoy, 15 111 189 Sibley v. Baker, 2;} Mich 390 Sidney v. Sidney, 3 P. Wins 43 Sieveking v Behrcns, 2 My. & Craig.. 288 Siffkin v. Manning, 9 Paige, Ch 161 Simes V. Smith, 4 Mad 126 Simmons v. Johnson, 47 111 463 Simms v. Thompson, 1 Dev. Ch 249 Simons v. Guthrie, 9 Cranch 195 Sims v. Lyle, Wash. C. C. R 117 Singleton v. Gale, 8 Porter 65 Singleton v. Singleton, 8 B. Monroe. . . 340 Sisk V. Smith, Admr. 1 Gilm 464, 465 Sizer v. Miller, 9 Paige, Ch 405 Sizer V. Sizer, 9 Paige, Ch 61 Skinner v. Bailey 43, 46 Skinner v. Judson, 8 Conn 268, 209 Skinner v. Newberry, 51 111 462 Skinner v. Skinner, 5 Wis iiOa Slack V. Wolcott, 3 Mason 241 Slade V. Kiggs. 3 Hare 378 Slee v. Manhattan Co. 1 Paige, Ch. 353, 358 Slingsby v. Ilalc, 1 Ch. Cas 254, 262 Sloan v. Little, 3 Paige, Ch •. . 134 Sloan V. Maxwell, 2 Green, Ch 550 Sloan V Moore, 37 Pa. St. R 341 Slocum v. Marshall, Wash. C. C 550 Sloman v. Kelly, 3 Yonnge & Coll 133 Small V. Allen, 8 Tenn 549 Small V. Small, 4 Greenl 549 Smedley v. Moore, 26 Wend 320 Smell V. Boudinot, 1 Stockt. N. J 47 Smith V. Babcock, 3 Sumner 164 Smith v. Ballentyue, 10 Paige, Ch 108 Smith v. Barnes, 1 Dick 107 Smith V. Clarke, 4 Paige, Ch 142 Smith V. Collyer, 8 Ves 565 Smith v. Doyle, 46 111 351 Smith V. Hampton, 13 Texas 320 Smith V. Henry, 15 Iowa 99 Smith V. Hollenbeck, 46 111. S. C. 51 HI. 64 Smith V. Kclley, 2" Maine .359 Smith v. Kornegay, 1 Jones, N. C. Eq. . 102 Smith V. Lasher, 5 Johns. Ch 134 Smith V. Loomis, 1 Halst. Ch 134 Smith V. McConnell, 17 111 535 Smith V. Moore, 26 111 582 Smith V. Moreland, 6 Jones, N. C. Eq. . 102 Smith V. Newton, 38 111 .388 Smith V. Powell, 50 111 46, 251, 614 Smith v. Price, 39 III 565 Smith V. Rotan, 44 111 62, 6;^ Smith V. Sacket, 5 Gilm 63 Smith V. Searle, 14 Ves 152 Smith v. Sheppard, 2 Hey 397 Smith V. Smith, 1 Edw. Ch 518 Smith V. Smith, 4 Paige, Ch .509, 510 Smith V. Smith, 1 Ired. Ch 195 Smith V. Smith, 32 111 372 Smith V. Trimble, 27 111 88 Smith V. Turner, 1 Veru 262 Smith V. Wildham, 37 Conn 570 Smith V. Wilson, 26 111 91 Smytho v. Clay, 1 Bro. P. C 22;3, 26;? Snell V. Stanley, 58 111 389 Snow V. Benton, 28 111 550 Snydam v. Trucsdale, 6 McLean 143 Snyder v. Griswold, 37 III ,359, 389 Snyder v. Spaulding, 57 111 330 Soheir v. Williams, 1 Curtis 331 Soaillard v. Dias, 9 Paige, Ch 83T TABLE OF CASES CITED. 679 Southard v. Russell, 16 How. U. S 250 Southern Bank v. Humphreys, 47 111 . . . 92 Spear V. Campbell, 4 Scam 62, 65 102, 401 Speij^ht V. Adams, 1 Freeman, Ch 254 Spence v. Duren, 3 Ala 44 Spencer v. Bryan, 9 Ves 127 Spencer V. Van Iiusen, 1 Paige, Ch. . . 160 Spencer v. Wray, 1 Vcrn 226 Spofford V. Manning, 6 Paige, Ch 9i> Spofford V. Manning, 2 Edw. Ch l'>4 Sprigg V. Bank of Mt. Pleasant, 14 Pet. 351 Spring V. Ilaiues, 21 Maine 372 Spring V. South Carolina Ins. Co. 8 Wheat 291 Springer v. Rossettc, 47 111 539 Stacy V. Randall, 17 111 136, 140 Stafford v. Brown, 4 Paige, Ch 158, 159 Stafford v. Hewlett, 1 Paige, Ch... 164, 165 203, 213 Stafford v. Mott, 3 Paige, Ch 100 Stalling's Admr. t. Goodloe'.-* Esr. 3 Mur 256 Stamps V. Kelley, 22 111 64 Stanberry v. Moore, r,(> 111 169 Stark V. Hillibut, 19 111 172 Stark V. Starr, 6 Wallace 536 Starke v. Mercer, 3 How. MisH 249 State Bank v. Stanton, 2 Gilm 103 Statham v. Hall, Tur. & Russ 290 St. Clair V. Piatt, Wright 249, 2.54,256 Steed V. Baker, 13 Gratt 47 Steegleman v. McBridc, 17 111 591 Steele v. Gellatly, 41 111 464 Steele v. Magie, 48 111 4.58 Steere v. Hoagland, 39 111 397, 398 Stephens v. Bichnell, 27 111 ... . 90, 374, ;i85 Stephens v. Terrell, 3 Monr 167 Sterling V. Sterling, 12 Geo 510 Stevens v. Coffeen, 39 III 200, 201 Stevens v. Guppy, 3 Russ 333 Stevens v. Hay, 15 Ohio 249, 2.54 Stevenson v. Anderson, 2 Ves. & Bea. 289 Stewart v. East Ind. Co. 2 Vem 103 Stewart v. Howe, 17 111 64 Stewart v. Winters, 4 Sandf. Ch 566 Stewartson v. Stewartson, 15111 522 Stillwell V. McNeeley, 1 Green, Ch.... 106 Stockton v. Williams, Harring. Ch 91 Stokes V. Clendon, Swanst 375 St.. Louis, A. & T. R. R. Co. v. South, 43ni 97 Stone V. Anderson, 6 Foster 57 Stone V. Fouse,3Cal 338 Stone v. Moore, 26 111 107, 137 Sione v. Smoot, 39 111 306 Stooke V. Vincent, 1 Collyer 103 Stonns v. Ruggles, 1 Clarke 401 Storyv. Livingston, 13 Pet.. 62,(^,183, 186 Story V. Moon, 8 Dana .339 Story V. Norwick & Wos. B. R. Co. 24 Conn 324 Story V. Randall, 17111 1.33 StouflVr V. Maehen, 16 111 142 Stout V. Cook, 37 111 535. 538 Stow V. Robinson, 24 111 320 Stowe V. Russell, 36 111 47, 99 Stowe V. Steele, 45 111 458, 477 Strader v. Byrd, 7 Ham 250 Strafford v. Ilogan, 2 Ball, and Beatt.. . VM Strang v. Allen, 4-1 111 18:^, ;»i Strange v. Longley, 3 Barb. Ch 401 Strawn v. Strawn, 46 111 4.58, 467 Strawn v. Strawn, 50 111 477 Stribling v. Ross, 16 111 457, 462 Strickland v. Strickland, 12 Sim 165 Strickland v. Towler, 1 Dev. & Bat. Ch. 320 Striker v. Mott, 2 Paige, Ch 427 Strong V. Clawson, 5 (Jilui 338 Strong v. Downing, 31 Ind 62 Stuart V. Coalter, 4 Rand 48 Stuart V. M. & T. Bank, 18 Johns 195 Stuart V. Worrall, 1 Bro. C. C 368 Sullivan v. Finnegan, 101 Mass N37 Sullivan v. Sullivan, 42 111. 88, 145,44.3, 445 Sullivan v. Sullivan, 2 Add. 2 Eng. Eccl. R 517 Sullivan v. Tuck, 1 Md. Ch. Decis 322 Summers v. Babb, 13 111 458, 466 Sumrall v. Ryan, 1 J. J. Marsh 166 Supervisors Fulton Co. v. M. & W. R. R. Co. 21 111 134, 138 Supervisors v. States Attorney, 31 111.. 48 49 Snrget v. Byers, 1 Hemp 4.3, 48 Surrey v. Waltham, 2 Anst 28-3, 288 Surtser v. Skiles, 3 Gilm 102 Sutherland v. Ryerson, 24 HI 575, .591 Sutphen v. Cnshman, 35 111 mi, 351 Sutton v. Gatewood, 6 Munf 108 Suydam v. Reals, 4 McLean 398 Swift V. Allen, 55 111 197 Swift V. Eckford, 6 Paige, Ch 50 Swift V. Swift, 13 Geo 134 Sydolf V. Monkston, 2 Dick 159 T Taintor v. Keycs, 43 111 351 Talbot v. McGhee, 4 Monr 313 Talbot V. Todd, 7 J. J. Marsh 197 Tallniadge v. Lovett, 3 Edw. Ch 105 Talmage v. Pell, 9 Paige, Ch 313, 316 Tanner v. Hicks, 4 S. & M. R 164 Tappan v. Evans, 12 N. H 210 Tarbell v. Bowman, 103 Mass 103, 136 Tarleton v. Vietes, 1 Gilm 107, 306 Tasker v. Small, 3 Mylne & Craig 32(i Taylor V. Luther, 2 Sumner 135, 140 680 TABLE OF CASES CITED. Taylor v. Merchant's Fire Ins. Co. 9 How. U. S 322 Taylor V. Merrill, 55 111 317,318 Taylor v. Person, 2 Hawks 236 Taylor v. Porter, 7 Mass 359 Taylor v. Taylor, 1 Mac. & Gord. 218, 254 Taylor v. Taylor, 8 How. U. S 550 Taylor v. Titus, 2 Edw. Ch 306 Temple v. Lawson, 19 Ark 280 Tennent V. Pat ton, 6 Leigh 197 Thanet v. Patcrson , Barnard 283 Thayer v. Lane, Harring. Ch 44, 425 Thayer v. Thayer, 101 Mass 492 The Bank, etc. v. Dunyan, 2 Bland.... 401 The Farmers' Loan & T. Co. v. Sey- • mour, 5 Paige, Ch. R 242 Theirman v. Roland, 3 Harris 320 The Justices v. Croft, 18 Geo 322 The People v. City of Galesburg,48Ill. 103 The People v. Cloud, 50 111 97 Thomas v. Brashear, 4 Monr 107, 127 Thomas v. Caldwell, 50 111 46 Thomas v. County of Morgan, 39 111. . . 196 Thomas v. Harvie's Ueire, 10 Wheat.2o4, 255 Thomas v. Morris, 57 111 89 Thomas v. Thomas, 51 111. 492, 497, 506. 514 Thomas v. Warner, 15 Vt 46 Thomas Trustee v. Adams, 30 111. 65, 103, 401 Thomason v. Smithsou, 7 Porter. . . 57, 58 Thompson v. Baskerville, 3 Ch. R 356 Thompson v. Bnien, 46 111 318 Thompson v. Dudley, 3 Edw. Ch 226 Thompson v. Ebbets, Hopk. Ch.. 280, 291 Thompson v. Kyuer, 65 Penn. St 550 Thompson v. Nixon, 3 Edw. Ch. . . 398, 399 Thornbcrry v. Thornberry, 4 Litt 5.32 Thorne v. Ualsey. 7 Johns. Ch 560 Thorpe v. Macauley, 5 Mad 299 Thurman v. Sheldon, 10 Yerger 48, 102 Tibbs V. Allen, 27 111. .144, 145, 443, 444, 451 Tidd V. Clare, Dick 99, 106 Tiernan v. Poor, 1 Gill & J 43 Tilford V. Henderson, 1 A. K. Marsh. . . 51 Tillson V. Moulton, 23 111 351 Tilton V. Tilton, 9 New Hamp 44 Tingley v. Cowgill, 48 Mo 548, 549 Tinlcy v. Bank of U. S. 11 Wheat 373 Tirrell v. Cox, 1 Rol. Abr 299 Tittsworth v. Stout, 49 111. . . . 138, 306, 438 Titus V. Mabee, 25 111 615 Tobey v. County of Bristol, 3 Story. . . 318 Todar v. Sansam, 7 Bro. P. C 200 Todd V. Gee, 17 Ves 100 Todd V. Lackey, 1 Litt 251 Todd V. Laughlin, 3 A. K. Marsh 251 Tomlinson v. McKaig, 5 Gill 253 Tompkins v. Wiltberger, 56 111 76, 92 Tonkin v. Letherbridge, Coop. R. 206, 212 242 Torrent v. Browning, 22 Mich 536 Town of Tamarora v. Normal Uni-.er- sity, .Will 94, 95, 103, 104 Townsend v. Camperdown, 9 Price . . . 325 Townsend r. Griggs, 2 Scam 76 Townsend v. Townsend, 21 111 80 Townshend v. Duncan, 2 Bland 45, 46. Tradesman's Bank v. Hyatt. 2 Edw. Ch. 134 Trailar v. Hill, 2 Gilm 225 Traip v. Gould, 15 Maine 269 Travis v. Waters, 1 Johns 197 Treadwell v. Brown, 44 N. H 100 Tripp V. Vincent, 8 Paige, Ch. R 251 Troughton v. Binkes, 8 Yes 355 Trout V. Emmons, 29111 142 Trowbridge v. Carlin, 12 La. An 502 True V. Haley, 2 1 Maine 355 Truett V. Warnwright, 4 Gilm 103 Trumbull v. Trumbull, 23 Ark 509 Turbitt V. Turbitt, 21 111 502 Turleton v. Vietes, 1 Gilm 138 Turner v. Adams, 46 Mo 397 Turner v. Berry, 3 Gilm. . 210, 251, 252, 254 259 Turner V. Clay, 3 Bibb 318 Turner v. Crebill, 1 Ham 197 Turner v. Dickerson, 1 Stockt. N. J. . . 269 Turner v. Hand, 3 Wall, Jr 550 Turner v. Turner, 44 Ala 532 Turney v. Saunders, 4 Scam 578, 581 Turpin v.Bauton, Hardin 324 Turst V. Turst, 2 Lee 517 Tuttle V. Garrett, 16 111 144 Twyman v. Twyman, 27 Mo 509 Tyns V. Bust, 37 Geo 281, 283 Tyson V. Watts, 1 Md. Ch. Decis ?!8 u Union Bank v. Geary, 5 Pet 148 Union Ins. Co. v. Van Rensselaer, 4 Paige, Ch 376 U. S. V. Sturges, 1 Paine's R. 397 United States v. Sampeyas, 1 Hemp.. . 249 United States Bank v. Saline Bank, 1 Pet 268 United States Bank v. Shultz, 3 Ham. 43, 44 University Col. v. Foxcroft, 2 Chan R. 233 Upham V. Brooks, 2 W. & M 352 Urlin V. Hudson, 1 Vern 12e Urmston v. Singleton, cited in Seaton on Decrees 335 Utsler V. Utsler, Wright, Ch 506 V Vail V. Nelson, 4 Rand 31ft Valleau v. Valleau, 6 Paige, Ch 492 Van Antwerp v. Hulburd, 8 Blatchf. U. S. C. C 44 TABLE OF CASES CITED. 681 Van Cleef v. Sickles, 5 Paige, Ch . . 401, 405 Van Court v. Bushnell, 21 111 578, 580 Vanderveer v. Holcomb, 21 N. J. Eq. . . 312 Vane V. Barnard, 1 Salk 5&4 Van Epps v. Van Epps, 6 Barb. N. Y. . 492 Vanhorn v. Duckworth, 7 Ired. Ch 105 Van Horn v. Keenan, 28 111 550 Vanmeter v. Vanmeter, 3 Gratt. Va 197 Van Pelt V. Dunford, 58 111 582 Van Rensselaer v. Price, 4 Paige, Ch.. 161 Van Sandon V. Moore, 11 Ves 136 Vansant v. Allmon, 23 111. 371, 372, 376, 385 Vansendan v. Rose, 2 Jac. & W 565 Van Syckel v. Richardson, 13 111 397 Vanzant v. Vanzant. 23 lU 511 Varick \. Dodge, 9 Paige, Ch. 114, 115, 149 Varick v. Smith, 5 Paige, Ch. . . . 47, 49, 101 Varm v. Harget, 2 Dev. & Bat 50 Vas8er v. Vasser, 23 Miss 323 Vaughan v. Fitzgerald,l Sch.& Lef, 297, 299 Vcazie v. Williams, 3 Story 2M Vennum v. Davis, 35 Dl 268 Vere v. Glynn, 2 Dick 165 Vennillian v. Bailey, 27 111. 340 Vermilyea v. Fulton Bank, 1 Paige, Ch. 144 Vermilyea v. Odell. 4 Paige, Ch 172 Verplank v. Caines, 1 Johns. Ch 98 Verplank v. The M. Ins. Co. 1 Ed. Ch. 165, 166, 167, 168 Vertner v. Griffiths, Walker 166, 167 Very v. Levy, 13 How. U. S 47 Vicary v. Widger, 1 Sim 288 Vieley v. Thompson, 44 111 45, 104 Vigers v. Lord Audley, 9 Sim. 207, 214, 219 230 Vignos V. Vignos, 15 III . 502 Vining v. Leemau, 45 111 47 Von Glahn v. Von Glahn, 39 111. 502, 512 523 Von Glahn v. Von Glahn, 46 111 196 Voorhees v. Demeyer, 2 Barb. R 321 Vose V. Philbrick, 3 Story 42 Vroom V. Ditmas, 4 Paige, Ch 201, 358 w Wabash & Erie Canal Co. v. Beers, 2 Black, U. S. R 401 Waddams v. Humphrey, 22 111 ... 189, 190 Wagoner v. Speck, 3 Ham 398 Wagstaff V. Bryan, 1 Russ. &My.. 161, 235 Wakeman v. Grover, 4 Paige, Ch. l:M, 400 401, 403 Walbnm v. Ingilby, 1 Mylne & Keene. 47 Walden V. Brady, 14 Pet 166 Waldron v. Waldron, 5 P. E. Smith, Pa. 533 Wales V. Bank of Michigan, Harring. Ch 107 Walford v. Phelps, 2 J. J. Marsh 102 Walker v. Cary, 53 111 187, 198 Walker v. Devereaux, 4 Paige, Ch... 58, 59 Walker v. GUbert, 7 S. & M 203 Walker v. Hallett, 1 Ala 164,210 Walker v. Laflin, 26 111 425 Walker v. Taylor, 42 Ala 49 Walker V. Walker, 3 Kelly 131 Wall V. Stubbs, 2 Ves. & B 126 Wallace v. Hawley, 4 J. J. Marsh 65 Wallace v. McLaughlin, 57 111 321 Waller v. Taylor, 42 Ala 102 Wallwork v. Derby, 40 111 56, 140, 141 Walsh V. Reis, 50111 477 i Walsh V. Smythe, 3 Bland 168, 169 Walton V. Crowley, 14 Wend 351 Walton V. Van Mater, Halst. Dig 19;i Walts V. Waddle, 6 Pet 319 Walworth v. Holt, 4 Milne & Craig. ... 341 Ward V. Davidson, 2 J. J. Marsh 313 Ward V. Dewey, 16 X. Y 536 Ward V. Jewett, Walker 88 Ward V. Owens, 12 111 187 Warner v. Campbell. 26 111 175 Warner- V. Hilm, 1 Gilm 385 Warner v. Tomlinson, 1 Root 196 Warren v. Richmond, 53 111 47, 319 Warren v. Warren, 56 Maine 49 Warring V. Mackreth, Forrest. Ex. Rep. 273 Warrington v. Wheatstone, 1 Jac. 28:3, 388 Washburn v. Dewey, 17 Vt 323 Washburn v. Washburn, 5 X. H 493 Washington etc. Road v. State, 19 Md.. 99 Waters v. Brown, 7 J. J. Marsh 321 Waters V. Glanville, Gilb. R 132 Waters v. Howard. 1 Md. Ch. Decis.... 322 Waters v. Taylor, 2 Ves. & B 340, 341 Waters v. Taylor, 15 Ves 340 Waters v. Travis. 9 Johns. R 3ft0 Watkins v. Bush, 2 Dick 107 Watkyns v. Watkyns, 2 Atk 43 Watson v. Cox, 1 Ired. Ch 50 Watson v. Hunter, 5 Johns. Ch 565 Watts v. Crawford, 11 Paige, Ch 205 Watts V. Lawrence, 3 Paige, Ch 96 Watts V. Waddle, 6 Pet 321 Waugelin v. Goe, 50 HI. . 88, 95, 98, 103, 108 615 Waugh V. Robbing, .33 Dl 44 Weaver V. WUson, 48 HI 388 Webb V. A. M. & F. Ins. Co. 5 Gilm. 172, 177 Webb V. Pell, 3 Paige, Ch. R...251, 252, 255 256, 265 Webster V. Folsom. 58 Maine 398. 402 Webster V. French, 11 111 63, 327 Webster v. Webster, 55 111 44 Weed v. Pierce, 9 Cow 398 Weed V. Terry, 2Doug 322 Weider v. Clark, 27 111 143 Weirick v. De Zoya, 2 Gilm 47 Wellesly v. Wellesly, 17 Sim 218 Welsh v. Bayard, 21 N. J. Eq 385 682 TABLE OF CASES CITED. Welshv. Byrne, 38 Dl 612, 614 Welsh V. Lewie, 31 111 241 WellB V. Wood, lOVcs 152 Wclton V. Copeland, 7 Johns. Ch 427 Wendell v. New Hampshire Bank, 9 N. H 359 Wener v. H.;iiitz, 17 111 285 West V. Fleming, 18 111 575, 581 Weetv. IIall,3 Har. & J 46 Weet V. Mccarty, 4 Blackf 397 West V. Kaudall, 2 Maeon 49, 63 Westv. Schnt'bly, .M III 47, 536 West V. Williams, 1 Md. Ch. Decis 158 West. Un. Teleg. Co. v. P. & A. Telcfr. Co. 49 111 80, 313, 316 West V. Walker, 6 Blackf 557 Westcott V. Cady, 5 Johns. Ch. R 246 Westcott V. Minn. Mining Co. 23 Mich. 62 Wetherell v. Collins, 3 Mad 357-358 Wetherell v. Ohlendorf, 61 111 580 Wetherford v. James, 2 Ala 197 Wheeler v. Kinzic, 49 111 466 Wheeler v. Trotter, 3 Swanst / 43 Wheeler v. Wheeler, 18 111 523, 533 Whispell V. Whispell, 4 Barb 509, 526 Whistler v. Webb, Bumb 357 Whitcomb v. Golding, 2 P. Wms 61 Whitcomb v. Murchin, 5 Mad 200 White v. Buloid, 2 Paige, Ch.. 307, 312, 314 316 White V. Delschneider, 1 Oregon 102 White V. Hoffackcr, 27 111 182 White V. Law, 7 Vt 318 White V. Lewis, 2 A. K. Marsh 45 White V. Morrison, 11 111. .. 44, 89, 170, 187 White V. White, 45 N. H 514 Wiiite V. Yaw, 7 Vt 43, 44 Whitehursf v. Coleen, 53 Dl 37 Whitemarsh v. Campbell, 1 Paige, Ch 161, 165, 168 Whitenack v. Stryker, 1 Green, Ch 550 Whiteside v. Pulliam, 25 111 183 Whiting V. Bank of U. S. 13 Pet. 197, 2.50. 252 Whiting V. Rush, 2 Younge & Coll 153 Whiting V. White, Coop 353 Whitney V. Mayo, 15 111 62, 63 Whitney v. McKenney, 7 Johns. Ch.. . 373 Whitney v. Whitney, 5 Dana 50 Whittaker v. DegrafTenreid, 6 Ala 45 Whittingham v. Bnrgoyne, 3 Anst 104 Wichalse v. Short, 3 Bro. P. L 127 Wickley v. Thompson, 44 111 94 Wiggin V. Mayor, etc. 9 Paige, Ch 46 Wightman v. Hart, 37 111 142 Wightmau v. Hatch, 17 III 398. 400 Wigley V. Whitaker, 1 Beavan 315 Wllber V. Collier, 1 Clarke 166 Wilbnr v. Almy, 12 How. U. S 373 Wilbur V. Collier, 1 Clarke 404 Wilday v. Webster, 42 III 56, 142 Wiley V. Platter, 17 111 312 Wiley T. Sutherland, 41 111 613 Wilford V. Beaseley. 3 Atk 194 Wilkes V. Rogers, 6 Johns. Ch 43, 186 Wilkinson v. Beal, 4 Mad 57 Wilkinson v. Lovcll, 2 Dick 234 Wilkinson v. Yale, H McLean 397, 398 Willard v. Taylor, 8 Wallace 326 Willenborg v. Murphy, .36 111. . . 56, 140, 141 Willetts V. Burgess, 31 111 350 Willhite V. Pierce, 47 111 89, 182, 187 Williams v. Bishop, 15 111 189, 190 Williams v. Chapman, 17 HI.. . 576, 5*3, 591 Williams v. Cooke, 10 Ves. R 227 Williams v. Mattocks, 3 Vt 320 Williams v. Soulier, 55 111 130 Williams V. Springfield, 1 Vern 358 Williams v. Stewart, 3 Meriv 99 Williams v. Wiggand, 53 111 426, 427 Williamson V. Champlin, 1 Clarke 375 Williamson v. New Albany & S. K. R. Co. 2 Red. Rallw 371 Williamson V. Williamson, 1 Johns. Ch. 509 Williamson V.Wilson, 1 Bland. 340, 342, 401 Willis V. Henderson, 4 Scam. .. 56, 63, 140 141 Wilson V. Geislcr, 19 111 385 Wilson V. GreathoQse, 1 Scam 75 Wilson V. Greenwood, 1 Swanst 340 Wilson V. Lussen, 5 Cal S3S Wilson V. Nettleton, 12 111 96 Wilson V. Webb, 2 Cox 254 Wilson V. Wilson, 23 Md 102 Wilson V. Wilson, Wright, O. Ch 511 Wilson V. Wilson, 2 Hagg. Ch. R 517 Windham v. Windham, Freem 200 Windsor v. Windsor, 2 Dick 58 AVinkler v. Winkler, 40 HI. 45, 46, 103, 614 Winn V. Albert, 2 Md. Ch. Decis 210 Winnipiseogee Lake Co. v. Worster, 9 Foster 42 Winslow V. Newlan, 45 111 1T7 Winston v. Johnson, 2 Munf 253, 254 Wise V. Twiss, 54 111 164, 166 Wiser V. Blackley, 2 Johns. Ch. R. 249, 250 253,256 Wisner V. Barnet, 4 Wash. C. C... 99, 102 Witeman v. Witeman, 45 HI 523 Witherspoon v. Carmichael, 6 Ired. Eq. 47 Wolf V Wolf, Wright, Ch 514 Wolfe V. Wolfe, 3 Har. & J 13:1 Wood V. Beadel, 3 Sim 59 Wood V. Genet, 8 Paige, Ch 44 Wood V. Gosa, 24 III 96 Wood V. Keyes, 6 Paige, Ch 801 Wood V. Mann, 1 Sumner 115, 13.5, 161 Wood V. Mann, 2 Sumner 2.'>4 Wood V. Morrell, 1 Johns. Ch 134 Wood V. Rowc, 2 Bligh 114 Wood V. Scott, 14 Vt. 65 TABLE OF CASES CITED. 683 Wood V. Strickland, 2 Vee. & B 131 Wood V. Wood, 2 Paige, Ch 518 Wood V. Wood, 5 Ired. Eq 510 Woodside v. Woodside, 21 111 190 Woodward V. Astley, Bund 95 Woodward v. Harris, 2 Barb. R 321 Woodward v. Schatzell, 3 Jolins. Ch... 560 Woodward v. Woodward, 1 Dick 205 Woodworth v. Huntoon, 40 111 195 Woolcy V. Stone, 7 J. J. Marsh 397 Woolley V. Magie, 26 HI 458 Woofiter V. Woodhall, 1 Johns. Ch. . . . 90 Wools V. Tucker, 2 Vern 263, 265 Worthington v. Lee, 2 Bland 154 Wray v. Hutchinson, 2 Mylne & Keene 903 Wray v. Wray, 19 Ala 492 Wray v. Wray, 33 Ala 492 Wright V. Atkyns, 1 Ves. & B 59 Wright V. Bates, 13 Vt 358 Wright V. Bond, 11 Ves 334 Wright V. Dane, 22 Pick 42, 44, 45 Wright V. Howard, 6 Mad 164 Wright T. Langley, 36 111 374 Wright T. McNeely, 11 HI 387 Wright V. Wright, 3 Texas 503 Wych V. Meal, 3 P. Wms 103 Wylder v. Crane. 53 111 . . 56, 103, 141, 152 Wynkook v. Cowing, 21 111 142 Wynn v. Morgan, 7 Ves 334 Wynn v. Smith, 40 Geo 317 Wynne v. Jackson, 1 McClel. & Younge. 100 Yarborough v. Thompson, 3 S. & M ... 279 Yates V. Monroe, 13 111. . . 251, 253, 267, 178 Yates V. Tii^dale, 3 Edw. Ch 280, 288 Young V. Keighly , 16 Ves 254 Young V. Overseers, etc. 2 Green, N. J. 312 Young V. Young, 4 Mass 493 Yonngblood v. Scamp, 3 S. & M 61 Younge v. Forgey. 4 Heyw 251 z ZoU T. Campbell. S W. Va 270 INDEX. ABATEMENT— Pleas of, to jurisdiction of the court 115-120 Form of 120 To the person 115 Form of Plea of Coverture 120 Infancy mthout a prochein ami 121 Complainant an alien enemy 121 ABSTRACT— Fo7'm of, of pleadings and evidence 630 ACCOUNT— Form of plea of, stated 124 Form of bill for, between partners 345 Form of decree for, between partners 348 ADDRESS — Of a bill in chancery 41 Form of 69 ADMINISTRATOR — Form of plea, never was, etc 121 May file bill to enforce mechanic's lien 577 ADULTERY— A bar to dower 464 G round for divorce 491-493 Circumstantial evidence of 492 Form of bill for, by hnsband 493 Form of bill for, etc., by wife, for alimony, etc 494 Form of a decree for 514 Form of decree for, and custody of children, etc 515 AFFIDAVITS — Forms of. For publication, non-residence of defendant, stating his place of residence 78 Same, stating that place of residence is unknown 78 Same, stating that defendant cannot be found 78 Same, stating that defendant is concealed, etc 79 Of service of copy of bill and notice 80 To obtain attachment for not answering 84 In support of motion to set aside default 91 To an answer = 149 To a bill of revivor on newly discovered matter 262 To a bill of interpleader 285 To a petition to perpetuate testimony 301 For an injunction on bill for account between partners 345 To a petition for partition 435 Of commissioners to make partition 444 To a petition for dower 469 Of commissioners to assign dower 4*4 Of defendant to a demurrer in U. S. court 1 10 686 i:ndex. Agreement — Answers to a Bill. AGREEMENT.— {See Consent.) F<^m of, to submit a cause on wntten arguments 630 Bills for specific performance of 317-337 ALIENS — Entitled to dower 46» Form of plea, alien enemy 121 ALIMONY— When allowed, pendente lite 516-518^ How applied for 518 Form of petition for 518 Amount of allowance 519 Form of order of reference as to 510 Form of report of master upon 520 Form of order confirming 521 Form of interlocutory decree for 521 Permanent allowance of 521-523 Sale of real estate to satisfy 522 Farm of decree for 523 {See Maintenance.) AMENDMENTS TO BILLS — Nature of 165-166 When to be made 165-167 When not allowed 167 Fm-m of petition for leave to, after replication 167 Form of order granting leave to, after demurrer 168 Form of 169 Form of order granting leave to, after a plea to a pa/rt is allowed . 624 After plea 127 Answer to amended bill 151 In mechanic's lien suits 599 Rules in courts of equity of U. S. relating to 640 AMENDMENT OF ANSWER — When proper 152 Rule of Supreme Court of the U. S. relating to 647 ANCIENT BILLS — Form of. 66 Account of 67 ANSWERS TO A BILL — Nature of 132-136 Exceptions to 136 {See Exceptions to an Answer.) Fraud, how alleged 136-137 Mode of answering 137-138 Affirmative relief not granted on 138 May be joint 138-140 Frame of 138-140 Swearing to 140-141 Rule of Supreme Court U. S. relating to 647 Waiver of oath to 141-14^ EflTect of sworn answer as evidence 142 Against co-defendant 142 Of deceased ancestor 142 Admissions in 142-143 Of a corporation 143-144 Of infants, and insane persons 144-145 Coupled with demurrer 106 When a plea should be supported by 107 INDEX. 687 Appearance — Bills in Chancery. ANSV^ERS TO A BILL — Continued. A.llowing plea to stand for 130 Rules of Supreme Court U. S. relating to (j42 Demurrer to not proper 107 When to be filed 151 To an amended bill 151 Amendment of 152-15;i To a supjjlemental bill 21'6 To a bill of revivor 234 To a bill of discovery 37B To a bill of interpleader 287 To a bill to perpetuate te&timou}- 299 To a cross-bill 315 To mechanic's lien suits 591 Forms of. Miscellaneous, of commencements, conclusions, etc 14;j-l48 General frame of 148 Short 149 Infants by guardian ad litem 149 Statement in, claiming statute of frauds 149 Conclusion, insisting on remedy at law 149 And disclaimer 154 Of owner to bill for mechanic's lien tiOO Setting up discharge of mechanic's lien ($02 Setting up another mechanic's lieu , b02 To interrogatories, etc G27 Further, after exceptions, etc 628 And demurrer 112 And plea 125 Affidavit to 149 APPEARANCE — In the courts of equity of the U. S 637 ATTACHMENT — To compel an answer 81 How obtained 83 Form of iiffidamt to 84 Foi-m of order for 84 ATTACHMENT WITH PROCLAMATION — Nature of, etc 84 AWARD— Specific performance of 324 BILLS IN CHANCERY— Division of 39-40 Constituent parts of 40-50 The address 41 Form of 69 The introduction 41-43 Form of 69 The premises, or stating part 42-52 Forvis of 70-71 Certainty required 43-47 Must state the whole .subject 48 And not too many subjects 48 Matters in litigation not divisible 48 Multifariousness 48-51 Scandal and impertinence 51— _)2 Scandal 51 Impertinence 52 688 INDEX. Bills. BILLS IN CHANCERY— Continued. The confederating part 53-53 Form of 71 The charging part 53-54 Forin of 71 The j urisdictional clause 54 Form of 73 The interrogating part 55-56 Forjn of 72 The prayer for relief 56-58 Form of 73 The prayer for process 58-59 Forms of. 73 Frame of 'bill 59 Signing of bills 59-60 Swearing to bills 60-61 Parties to 61-65 ' Who should be made 68-63 How described 63 Persons under disability 63-64 Interest of 64 Joinder of 64-65 Want of 65 Misjoinder of 65 Ancient bills 66-68 {See Forms op the Constituent Parts of an Origi- nal Bill.) Frame of, in courts of equity of the U. S 638 BILLS — Forms of. An ancient bill 66 Constituent parts of 69 Supplemental, for specific performance 208 Supplemental, against assignee of bankrupt 209 Original in the nature of a supplemental bill 219 To carry decree into execution . , 223 Of revivor, before decree 230 Of revivor, after decree 231 In the nature of a bill of revivor 243 Of revivor and supplement 347 Of review, upon error of law 260 Of review, upon newly discovered matter 261 Of discovery 270 Of interpleader 284 To perpetuate testimony 297 Cross-bill to a foreclosure suit 308 Cross-bill, in nature of a -plea, puis darrein continuance 310 For specific performance, vendee v. vendor 327 For specific performance, vendor v. vendee 328 For specific performance, of a bond for a deed 330 For specific performance, of contract for lease 331 For a dissolution of copartnership, etc 342 For an account of partnership dealings, etc 345 To redeem, by heirs of mortgagor 360 To redeem from deed, intended as a mortgage 362 To redeem goods pledged as a security 364 To set aside decree of foreclosure, to redeem, etc 365 Of foreclosure, mortgagee v. mortgagor 376 Of foreclosure, assignee v. mortgagor 378 INDEX. 689 Bills — Bills and Petitions to Perpetuate Testimony. BILLS — Continued. Of foreclosure, mortgagee v. executor, etc 380 Of foreclosure, mortgagee v. administrator, etc 382 Of foreclosure, of deed of trust 383 For strict foreclosure of mortgage 380 Of creditors, general 406 Of creditor, in aid of execution, etc 413 By creditor executrix, etc 416 For partition between heirs, subject to dower 429 For partition, etc 431 For partition and dower 433 For divorce, on the ground of impotency 489 For divorce, ground former marriage, etc 490 For divorce, charging adultery, by husband 493 For divorce, etc., charging adultery, by wife 494 For divorce, charging desertion 497 For divorce, charging habitual drunkenness 499 For divorce, attempting life of the other 501 Divorce, charging cruelty, by husband 503 Divorce, etc., charging cruelty, etc., by wife 504 Divorce, etc., charging conviction of crime, etc 507 For separate maintenance 527 To quiet title, and cancel deed 540 To quiet title, and set aside tax deed, etc 541 To quiet title, and cancel contract, etc 544 To set aside a will, etc 551 For ne exeat repuUica ; 558 To restrain wastes, etc 566 To remove trustees, etc 571 For appointment of new trustees, etc 573 For mechanic's lieu 592 Cross-bill, for mechanic's lien 604 BILLS IN THE NATURE OF SUPPLEMENTAL BILLS — (sfc Sup- plemental Bills.) BILLS IN THE NATURE OF BILLS OF REVIVOR — (see Revivor, Bills of.) BILLS OF REVIVOR AND SUPPLEMENT— («ee Revivor, Bills OF.) BILLS OF DISCOVERY — (see Discovery, Bills of.) BILLS OF REVIVOR — (.sy(? Revivor, Bills op.) BILLS OF INTERPLEADER — (see Interpleader, Bills of.) BILLS OF REVIEW — (.see Review, Bills of.) BILLS TO FORECLOSE — (see Foreclosuke of Mortgages.) BILLS RELATING TO PARTNERSHIP MATTERS — (see Partner- ship, Bills of.) BILLS AND PETITIONS TO PERPETUATE TESTIMONY - Nature of the proceedings 294 Frame of bill 294-297 Form of bill 297 Defenses, and proceedings ' 298-300 Demurrer to 299 Answer 299 Petition to 300 In what cases proper 300 The petition 300-301 Form of Petition 301 Affidavit to 301 44 690 INDEX. Bills to Redeem — Commencement of a Suit in Chancery. BILLS AND PETITIONS TO PERPETUATE TESTIMONY— Cont'd. Commission to take depositions 302 Docketing 302 Notice to parties interested 302 Manner of taking testimony 303 Deposition may be used as evidence 303 BILLS TO REDEEM — Nature of 350 Deeds absolute on face of, when deemed a mortgage 351-352 Who may redeem 352-353 Within what time to be filed 353-354 Parties to 354-357 Complainants 354-356 Defendants 356-357 Terms of 357-359 Frame of bill 359-360 Forms of. By heirs of mortgagor against mortgagee 360 From a deed, intended as a mortgage 362 Goods deposited as a pledge 364 To set aside decree of foreclosure, and to redeem 365 Decrees 367-368 Form of 368 BILLS TO QUIET TITLE — Nature of, and when proper 535-539 Forms of bills. To quiet title, and cancel a deed 540 To quiet title, and set aside tax deed, etc 541 To quiet title, and set aside contract of sale 544 Form of decree to, and setting aside deed 546 BONDS — Forms of. For costs, hy a non-resident 38 By next friend of infant 38 For a deed, form of bill for specific performance of 330 BOOKS AND WRITINGS — Production of 174 Form of petition for. . . 175 Form of order directing 176 BRIEF AND POINTS — Form of, to be used on the hearing 631 CHANGING WIFE'S NAME — Allowed in divorce suits 514 {See Divorce.) CHARGING PART — Of a bill in chancery 53 Form of 71 COLLUSION — A bar to divorce 514 COMMENCEMENT OF A SUIT IN CHANCERY— By bill 35 By information 35 Where commenced 36 Security for costs 37 Form of bonds for 38 By a non-resident 38 By an infant's next friend 38 INDEX. 691 Commission of Rebellion — Crime. COMMISSION OF REBELLION — When granted, etc 85 COMMISSIONERS — To make partition 443 Proceedings by 443 liecjuired to take an oath 443 Form, of 444 Duty of 444 Report of 445 Form of, making partition 445 Form of, that petition cannot he made 446 To assign dower 474 Form of oath of 474 Duty of 474-476 Report of 475 CONDONATION — Effect of in divorce suits 508 CONFEDERATING PART OF BILL — Nature of, aud uses 52 Form of 71 CONFESSIONS — Not to be taken in divorce suits 513 CONTRACT — (/^ee Specific Performance.) Form of Ull to set aside 544 COSTS — When security for required, etc 37 Form of bonds for 38 Motion for security for 96 In interpleader bills 290 COVERTURE — Form of plea of 120 Not proper in Illinois 120 CREDITOR'S BILL — Nature of, and when proper 396-398 On justice's judgment 398 In United States court 389 What may be reached by 398-400 Parties to 400-402 Complainants 400-401 Defendants 401-402 Prioritv and lien of 403-404 Frame'of bill 404 Prayer of 405 Swearing to 405 Form of, general 406 Form of, in aid of execution 413 Form of, against executrix, etc 416 Farm of order appointing receiver 419 Form of order of reference 420 Form of decree for payment of 420 Form of decree setting aside fraudulent conveyance in aid of exe- cution 422 CRIME — Conviction of, ground for divorce 506 Form of bill for dicorce, on tJuit ground 507 69-2 INDEX. Cross-Bills — Decrees and Orders. CROSS-BILLS — Nature of 305-307 Frame of 307-308 Form of, to foreclose prior mortgage 308 Form of, in nature of plea puis darrein continuance 310 Wheu to be filed 312-313 Leave to 313 Process upon 313 Defenses to 314r-315 Demurrer 314 Pleas 315 Answer 315 Proceedings upon 316 Form of, in suit to enforce mechanic's lien 604 To be heard with original bill 193 Rule of Supreme Court of U. S. relating to 653 CRUELTY— Extreme and repeated, a ground for divorce 503 Form of bill by husband charging 503 Form of bill by wife charging, etc 504 Form of decree for divorce on that ground 516 DE BENE ESSE — Taking of testimony in U. S. courts 653 DECREES AND ORDERS— Nature, uses and kinds of 195-197 Interlocutory 195 Final 196-197 Setting aside, where parties are not personally notified 91- 93 In dower suits 473 Frame of 198-201 Constituent parts 198 Caption and title 198 The recitals 198-199 Ordering part 199 Declaratory part 200 By consent 200 Nunc pro tunc clause 200-201 Drawing of 201 Entitling in supplemental bills, etc 215 In revivor suits 236 In bills of interpleader 290-293 For specific performance 333-337 On bills to redeem 367-369 In foreclosure suits 389-391 In creditor's suits 419--422 In partition suits, making partition 437-439 Directing sales in 448-452 In proceedings for dower 472-473 In suits for divorce 512-514 Alimony 510-523 In suits for separate maintenance 529-533 In mechanic's lien suits 606-607 Rules of Supreme Court of U. S. relating to 056 Forms of orders. For an attachment for not answering 84 To expunge scandal and impertinence • 163 For leave to amend bill, after demurrer, etc. 168 For production of books and papers 176 INDEX. 693 Decrees and Orders. DECREES AND ORDERS —i^wrm o/— Continued. Of reference to master to take proofs. 183 Directing issues of fact to be tried Ijy a jury 190 Caption of 198 Recital of 199 General 202 And of decree 202 For revivor 286 For leave to file bill of revivor 259 For injunction on bill of interpleader 289 Of reference as to title of vendor, etc ;:>35 For an account between vendor and vendee 33C Appointing receiver in partnership suits 347 For an account between partners 348 Appointing receiver in creditor's suits 419 Of reference in creditor's suits 420 Directing issue for jury, in divorce suits '. ,jl3 Of reference as to alimony, etc ,519 Of reference as to separate maintenance, etc 530 Directing issue for jury, to try validity of will 553 Of judge granting ne exeat, etc 560 Of master granting ne exeat 561 Where defendant admits contempt, etc 618 Committing defendant for contempt, etc 018 Directing interrogatories for defendant to answer 619 Convicting defendant of contempt, after examination 020 Of reference of second or third answer, etc 621 For sheriff acting as sergeant-at-arms 621 For sequestration 622 Of reference as to exceptions, etc 622 For further answer, etc 623 For attachment on third answer, etc 628 For examination of defendant on interrogatories, etc 623 For leave to amend bill after plea, etc 624 Of reference to master 624 Of reference of a plea of former suit pending 625 Directing plea to stand for an answer 625 Allowing complainant to dismiss bill 625 To pay money into court 625 For cause to stand over to add new parties 626 For cause to stand over to supply proofs 626 Forms of decrees. Caption, and title of 198 Recital of 199 General 202 General of, or order 202 On bill of interpleader 292 For specific performance 336 For an account between partners 348 Of dissolution of partnership, etc 348 For redemption , 368 Of foreclosure, 2)ro coufesso and sale 391 Of foreclosure, on hearing, and for sale 394 Of strict foreclosure 394 On a general creditor's bill 420 Setting aside fraudulent conveyance, in aid of execution 422 For partition 439 For partition, etc 440 For partition and dower 441 694 INDEX. Deeds — Demurrer. DECREES AND ORDERS — Continued. Confirming partition by commissioners 447 For sale in partition suits 450 Confirming sale in partition 452 For dower, etc 473 For divorce on ground of adultery 514 For divorce for adultery, custody of children, etc 515 For divorce for cruelty, etc 516 For alimony pendente lite, etc 521 For permanent alimony 523 For separate maintenance 533 To quiet title and cancel deed 546 Setting aside a will 553 Allowing mechanic's lien, and for sale 607 Allowing mechanic's lien, reserving adjustment 608 , Allowing mechanic's lien, adjusting claims, etc 608 Dismissing bill at hearing 262 DEEDS — (&« Bills to Quiet Title.) DEEDS OF TRUST— When necessary to foreclose 382 Form of bill to 383 DEFAULTS— When may be taken 87 Effect of 88-89 Right of defendant after 90 Setting aside 90- 91 Motion to 90 Form of affidavit in support of 91 In divorce suits 513 In courts of equity of the U. S DEFENSES TO A SUIT— Proceedings by defendant, previous to putting in answer 94 Exceptions to bill for scandal and impertinence 95-96 Form of exceptions 95-96 Motion for the production of papers, etc 96 Motion for security for costs 96-97 Different sorts of defenses 97 {see Titles, Demurrer, Plea, Answer, and Disclaimer.) To a supplemental bill 211-214 To a bill of revivor 233-234 To a bill in the nature of a bill of revivor 245 To a bill of review 262-266 To bills of discovery 272-278 To bills of interpleader 286-289 To bills and petitions to perpetuate testimony 298-300 To cross-bills 314-315 To bill to foreclose mortgages 388-389 To bills for divorce 508-510 To bills for separate maintenance 529 To mechanic's lien suits 599-606 DEMURRER — Nature and uses of 98-101 Where it lies 102-104 General 104 Special 104 Several causes of , 1 04 Separate 104-105 Speaking 105 INDEX. 695 Depositions — Discovery, Bills of. DEMURRER — Continued. Ore tenus : , IO0-IO6 Coupled with answer 106 To plea or answer not tolerated 107-127 When to be filed 107 Hearing of 107 Effect of sustaining 107-108 Of overruling 108 To a supplemental bill 211 To a bill of revivor 233 To a bill of review 264 To a bill of discovery 272 To a bill of interpleader 286 To a bill to perpetuate testimony 299 To a cross-bill 314 To bill in U. S. court 109-110 Rules of Supreme Court of U. S. relating to 641 Forms of. General frame of 108 Short 109 For want of equity 110 For multifariousness Ill For want of parties Ill For want of privity Ill To bill of discovery, etc Ill That complainant shows no interest 112 To part of a bill 112 To part of bill, coupled with answer 112 To supplemental bill 212 To a bill of review 266 To a bill of discovery, no interest shown 274 To a bill of discovery, want of privity 274 To a bill of interpleader, want of affidavit 287 To a bill of interpleader, showing no right in defendant To a bill of interpleader, showing no right in complainant . . . 287 In the United States Court 109 Certificate to counsel to 110 Affidavit of defendant to 110 DEPOSITIONS — Of resident witnesses 17G-177 Of non-resident witnesses 177-178 Notice of taking when opposite party is non-resident 178 Of non-resident witnesses on oral interrogatories 179-180 Manner of taking, certifying, etc 180-182 Instructions for taking 182 Interpleader may be sworn 182 In proceedings to perpetuate testimony 303 May be read on motion to dissolve injunction 615 DESERTION — A ground for divorce 496 Form of hill on that ground 497 DISCLAIMER — Nature of 153-154 Form of 154 Form of ansirer, and 155 DISCOVERY, BILLS OF — Nature of, and when proper 207-269 Frame of -. 269-270 696 INDEX. Divorce, Bills for. DISCOVERY, BILLS OF— Continued. Form of. 270 Defenses to 273 Demurrer to 272-274 Form of, xchere defendant has no interest 274 Formof, for want of privity 274 Plea to 274-275 Form of action at law pending, etc 275 Form of, that discovery would compel betrayal of confidence as solicitor 276 Answer 276-277 Practice upon, generally 277 Form of demurrer to, defendant could be a icitness Ill DIVORCE, BILLS FOR — Nature of 483-484 Causes for under 111. stat 485 Jurisdiction of, and where commenced 485 Complainant must be resident, etc 486 Effect of 486 On dower 463 Natural impotency at time of marriage 486^88 Form of bill, on that ground 489 Having a husband or wife living at time of marriage 490—491 Form of bill, on, that ground 490 Adultery 491-496 Circumstantial evidence of 492 Frame of bill charging 493 Form of bill for, by husband 493 Form of bill for, by wife, for alimony, etc 494 Willful desertion 496-498 Form of bill, on that ground 497 Habitual drunkenness 498-501 Form of bill, on that ground, etc 499 Attempting the life of the other 501-502 Form, of bill, for that cause 501 Extreme and repeated cruelty 502-506 Form of bill, on that ground, by husband 503 Form of bill, on that ground, by wife, injunction, etc 504 Conviction of crime, etc 506 Form of bill, on that ground 507 Defenses to 508 Condonation 508-510 Recrimination 510 Injunctions in 510 When proper •. . . . 511-512 Custody of children, pendente lite 511 Hearing and decree 512 Trial by jury 512 Forming an issue for 512 Form of order directing, etc 512 In cases of default 513 Confessions of defendant 513 Collusion 514 Proof of foreign marriage 514 Changing wife's name 514 Forms of decrees for. On the ground of adultery, changing wife's name 514 On the ground of adultery , for custody of children, etc 515 On the ground of cruelty, upon verdict, etc 516 INDEX. 697 Dower, Proceedings for. DIVORCE, BILLS FOR — Continued. Alimony and expenses 516 Pendente lite ' 516-517 Form of. Petition for 518 Amount of allowance 519 Form of order of reference as to .' 519 Form of report of master ns to 520 Form of order confirming 521 Form of order cdloidng, etc 521 Questions of guilt not investigated 521 Permanent allowance of 521 Sale of real estate to satisfy 522 Form of decree for 523 Title of property held by one, equitably belonging to the other, etc .' ■ 533 Wife may prosecute without costs, when 518 DOWER, PROCEEDINGS FOR — Nature of 453-457 In what property it attaches 457-459 Aliens entitled to 459 In lands mortgaged to secure purchase money 459 In surplus after sale on mortgage 459 Not in estate created by mortgage 460 How barred 460 By jointure, etc 460-461 By will, etc 461 W^here husband and wife die without issue 462 Renunciation of will 463 Form of 463 By divorce, when, etc 463 By abandonment and adultery 464 Not by judgment, etc 464 Where there is an exchange, etc 464-46.J Persons selling by order of court, not. . . ., 465 Elements and incidents of 465 Transfer of, etc 465-166 Suits for 466 Duty of heirs to assign, etc 466 Who may file petition 467 Where petition to be filed 467 Infants as petitioners or defendants 467 Guardian ad litem for 467 Frame of petition 467 Parties to 467-468 Unknown defendants 46y- Forms of petitions 468 By widow, for 468 Affidavit to 469 By a husband, for 469 By heirs, to lutve as,nyned 470 Form of bill for, in partition suits 433 Interest in partition suits 449 Process of appearance 471 Summons 471 Unknown parties 471 Non-resident defendants 471 Service by copy of petition 472 698 INDEX. Drunkenness, Habitual — Executors. DOWER, PROCEEDINGS FOR — Continued. Setting aside decree, where defendants are not personally notified 472 Interpleader 472 Hearing and decree 472 Form of decree for 473 Commissioners to assign 474 Form of oath of. 474 Duty of ." 474 Dower may be assigned in a body, etc 475 Homestead, etc 475 Report of commissioners 475 Commissioners subject to directions of court 476 Allowance in lieu of 476—477 Damages for refusal to assign 477-478 Mode of ascertaining value of 478 Dr. Wigglesworth's table 479 Table showing present value, computed at 5 per cent 479 Portsmouth or Northampton tables at 6 per cent 480 Rule for computing 481 Examples 481 Miscellaneous provisions of the statute 481 Dower assigned in application to county court for leave to sell lands to pay debts 481 Waste by persons to whom dower is assigned 482 DRUNKENNESS, HABITUAL— A ground for divorce 498 Form of hill, on that charge 499 EQUITY— General principles of pleading of 32-34 Form of demurrer, for want of. 110 EXCEPTIONS — To report of master in chancery 184-186 Form of 185 To report of commissioners to make partition 448 To report of sale in partition suits 451 EXCEPTIONS TO ANSWER — Nature of 157, 136 For insufficiency 158 In what cases they lie 158 How taken 158-160 For scandal and impertinence 160 What is 160-161 Form of, for insufficiency 162 For scandal and impertinence 162 Form of order to expunge scandal, etc 163 When to be filed 136 Rules of Supreme Court of U. S. relating to 648 EXCEPTIONS TO A BILL — When they may be taken, etc 95 Form of 95 EXECUTION — Form of bill in aid of 413 Form of decree vpon 422 EXECUTORS— (see Administrators.) EXECUTRIX — Form of creditor's bill against 416 IXDEX. 699 Executrix — Forms. FEIGNED ISSUES — TRIALS BY JURIES — Nature of ! 188-190 Form of order directing an issue of fact to be tried by a jury 190 Drawing up and settling 191 FELONY— Conviction of, a ground for divorce 506 Form of bill for divorce, on that ground 507 FORECLOSURE OF MORTGAGES — General nature of 370-371 When proper 371-372 Parties 372 Complainants 372-373 Defendants 37:^-375 Frame of bill 375-376 Forms of bills. Mortgagee against mortgagor 376 Assignee of mortgagee against mortgagor 378 Mortgagee against executor, etc 380 Mortgagee against administrator, etc 382 Trust deeds and sale mortgages 382 Form of bill to foreclose 383 Strict foreclosure 384-;386 Parties to 385 Frame of bill 386 Form of bill 386 Defenses to 388-389 Decree of 389-391 Form of, pro conf esso 391 Form of, on hearing 394 Form of, on strict foreclosure 394 Form of cross-bUl by first mortgagee 308 Form of bill to set aside decree of, and to redeem 305 FORMER MARRIAGE — A ground for divorce, etc 490 Form of Mil for divorce, on that ground, etc 490 FORMER SUIT PENDING — Form of plea of 122 FORMS — Bond for costs. No. 1. By a non-resident complainant 38 No. 3. By next friend of infant complainant 38 Of ancient bill. No. 3. Ancient bill 66 Bill in chancery. No. 4. Constituent parts of 69 Affidavits for p ublication. No. 5. Non-residence of defendants, stating place of residence . . 78 No. 6. Non-residence of defendant ; place of residence not known, 78 No. 7. Defendant cannot be found 78 No. 8. Defendant concealed within this state 79 Notice. No. 9. To be served with copy of bill on defendant 80 Affidavit. No. 10. Of service of copy of bill and notice 80 No. 11. To obtain attachments, for not answering 84 Order. No. 12. For an attachment for not answering 84 700 INDEX. Forms. FORMS — Continued. Affidavit. No. 13. In support of motion to set aside default 91 Petition. No. 14. To set aside decree, when defendant was not personal Iv Notified ' 01 Exceptio/is. No. 15. To a bill for impertinence and scandal 95 Demurrers. No. 16. Frame of, general 108 No. 17. Short form of 109 No. 18. Certificate of counsel to, in U. S. court 110 No. 19. Affidavit of defendant to, in U. S. court 110 No. 20. For want of equity 110 No. 21. For multifariousness Ill No. 22. For want'of parties Ill No. 23. For want of privity Ill No. 24. To bill of discovery, when defendant may be examined as a witness Ill Dermirrers. No. 25. To a bill, complainant has no interest 112 No. 26. To part of a bill 113 No. 27. To part of a bill, with answer as to residue 112 Pleas. No. 28. Commencement and conclusion of, etc 119 No. 29. Commencement and conclusion of part of bill 119 No. 30. In abatement to jurisdiction of the court 120 No. 30«. Of coverture of com])lainant 120 No. 31. Of infancy without a prochein ami 121 No. 32. That defendant never was administrator, etc 121 No. 33. That complainant is an alien enemy 121 No. 34. Want of proper parties 122 No. 35. Former suit pending 122 No. 36. Statute of limitations 123 No. 37. Release, supported by answer 123 No. 38. Stated account " 124 No. 39. To a part of bill, answer to residue 125 Ansicers. No. 40. Title of, by one defenciant 145 No. 41. Title of, joint and several 145 No. 42. Title of, by one of several '. 145 No. 43. Title of, to amended bill 146 No. 44. Title of, where exceptions were taken and bill amended. 146 No. 45. Title of, to supplemental bill 146 No. 46. Title of, amended 146 No. 47. Title of, by guardian ad litem. 146 No. 48. Introduction of, by one defendant 146 No. 49. Introduction to, of several defendants 146 No. 50. Where defendant admits a statement 147 No. 51. Where defendant admits statement of written instru- ment 147 No. 52. Qualified admission in 147 No. 53. Where defendant is ignorant of statements, etc 147 No. 54. Statements in joint answer, etc 148 No. 55. Where one of two deny allegations 148 No. 56. Where several are ignorant of allegations 148 No. 57. General frame of 148 No. 58. Affidavit to 149 No. 59. Short form of 149 INDEX. 701 Forms. FORMS — Answers — Continued. No. 60. Of infants by guardian ad litem 149 No. 61. Statement claiming statute of frauds 149 No. 62. Conclusion of, insisting that there is a remedy at law. . . 149 Disdnimer. No. 63. General 1.'54 No. 64. Answer and l.'j.j Excej)tions to ansirer. No. 65. For insufficiency \Cyi No. 66. For scandal and impertinence 1 62 Order. No. 67. To expunge scandal and impertinence from an answer. . 163 Petition. No. 68. For leave to amend bill after replication 107 Order. No. 69. For leave to amend bill after demurrer, etc 108 Amendment. No. 70. To bill 1G9 Replicntion. No. 71. General 172 Petition. No. 7~. For production of papers, etc 175 Orders. No. 73. For production of books and papers 176 No. 74. Of reference to master to take proofs 18o EeiJort. No. 75. Masters, of testimony iy4 Objections. No. 76. To master's report of testimony 185 Exceptions. No. 77. To master's report of testimony 185 Order. No. 78. Directing an issue of fact to be tried by a jury 190 Decrees and orders. No. 79. Caption, and title of 198 No. 80. Recital of, on order 199 No. 81. General form of order 203 No. 82. General, of a decree 203 No. 83. General, of order or decree 203 Bills. No. 84. Supplemental for specific performance, etc 208 No. 85. Supplemental against assignee of bankrupt 209 Petition. No. 80. For leave to file supplemental bill 310 Demurrer. No. 87. To supplemental bill 313 Plea. No. 88. To a supplemental bill 313 Bill. No. 89. Original, in the nature of a supplemental bill 319 No. 90. To carry decree into execution 333 No. 91. Of revivor before decree 230 No. 93. Of revivor after decree 331 Order. No. 93. For revivor 336 BUI. No. 94. In the nature of a bill of revivor 343 No. 95. Of revivor and supplement. 347 702 INDEX. Forms. FORMS — Continued. Petition. No. 96. For leave to file a bill of review for errors of law 257 No. 97. For leave to file bill of revieM upon newly discovered evidence 258 Order. No. 98. For leave to file bill of review 259 BUI. No. 99. Of review upon error of law 260 No. 100. Of review on newly discovered matter 261 No. 101. Affidavit to, on newly discovered matter 262 Plea. No. 102. To a bill of review 265 Demurrer. No. 103. To a bill of review 266 Bill. No. 104. Of discovery, etc 270 Demurrer. No. 105. To bill of discovery, where no interest is shown 274 No. 106. To bill of discovery, for want of privity 274 Plea. No. 107. To bill of discovery, that action at law is pending 275 No. 108. To bill of discovery, that it would compel betrayal of confidence as solicitor 276 Bill. No. 109. Of interpleader 284 No. 110. Affidavit to, of interpleader 285 Demurrer. No. 111. To bill of interpleader, for want of affidavit 287 No. 112. To bill of interpleader, not showing right in defendant. 287 No. 113. To bill of interpleader, not showing right in com- plainant 287 Order. No. 114. For injunction on bill of interpleader 289 Decree. No. 115. Interlocutory on a bill of interpleader, etc 292 Bill. No. 116. To perpetuate testimony 297 Petition. No. 117. To perpetuate testimony 301 No. 118. Affidavit to 301 Cross-hill. No. 119. To a foreclosure suit 308 No. 120. In nature of a plea puis darrein continuance 310 Bill. No. 121. For specific performance, vendee v. vendor 327 No. 122. For specific performance, vendor v. vendee 328 No. 123. For specific performance, of bond for a deed 330 No. 124. For specific performance, of contract for lease 331 Decrees and orders. No. 125. Of reference as to title of vendor, etc 335 No. 126. For an account between vendor and vendee 336 No. 127. Final, for specific performance 386 Bilh. No. 128. For a dissolution of a partnership, etc 342 No. 129. Affidavit to, for an injunction 345 No. 130. For an account of partnership dealings, etc 345 Decrees and orders. No. 131. Appointing a receiver in suit between partners 347 INDEX. 70a Forms. FORMS — Decrees and orders — Continued. No. 132. For an account of partnership dealings 348 No. 133. Final, for dissolution of partnership, etc 348 Bills. No. 134. By heirs of mortgagor to redeem 360 No. 135. To redeem from deed, intended as a mortgage 362 No. 136. To redeem goods pledged as security 364 No. 137. To set aside decree of foreclosure, and to redeem 365 Decree. No. 138. For redemption 368 Bills. No. 139. For foreclosure of mortgage, mortgagee v. mortgagor. . 376 No. 140. For foreclosure, by assignee v. mortgagor 378 No. 141. For foreclosure, mortgagee v. executor, etc 380 No. 142. For foreclosure, mortgagee v. administrator, etc 382 No. 143. For foreclosure of deed of trust, etc 383 No. 144. For strict foreclosure 386 Decrees. No. 145. Of foreclosure and sale, pro confesso 391 No. 146. Of foreclosure and sale, on a hearing 394 No. 147. Of strict foreclosure 394 Bills. No. 148. Of creditor, general 406 No. 149. In aid of execution, to remove fraudulent conveyance. . 413 No. 150. By creditor against executrix, etc 416 Orders and decrees. No. 151. Appointing receiver in creditor's suit 419 No. 153. Referring creditor's bill to master, etc 420 No. 153. That complainant's debt in creditor's suit be paid, etc. 420 No. 154. Setting aside fraudulent conveyance, in aid of execution 422 Bills. No. 155. For partition between heirs, subject to dower 429 No. 156. For partition 431 No. 157. For partition and dower 433 Petition. No. 158. For partition 435 Decrees. No. 159. For partition ■. 439 No. 160. For partition, etc 440 No. 161. For partition and dower 441 Affidavit. No. 163. Of commissions to make partition 444 Report. No. 163. Of commissioners, making partition, etc 445 No. 164. Of commissioners, that partition cannot be made, etc. . 446 Decree. No. 165. Confirming report of commissioner making partition.. . 447 No. 166. For sale, in partition suit 450 No. 167. Confirming sale, in partition suit 452 Petitions. No.. 168. For dower, by widow 468 No. 169. Affidavit to partition for dower 469 No. 170. For dower, by husband 469 No. 171. To have dower assigned, by heirs, etc 470 Decree. No. 173. For dower, appointing commissioners, etc 473 Affidavit. No. 173. Of commissioners to assign dower 474 704 INDEX. Forms. FORMS — Continued. Bills. No. 174. For divorce, on the ground of impotency 489 No. 175. For divorce, on the ground of former marriage, etc. . . . 490 No. 17G. For divorce, charging adultery, by husband 493 No. 177. For divorce, etc., charging adultery, by wife 494 No. 178. For divorce, charging desertion 497 No. 179. For divorce, etc., charging drunkenness 499 No. 180. For divorce, for attempting life of the other 501 No. 181. For divorce, charging cruelty, etc., by husband 50o No. 183. For divorce, etc., charging cruelty, by wife 504 No. 183. For divorce, etc., charging conviction of crime, etc 507 Orde7'. No. 184. Directing issues for jury, in divorce suit 512 Decree. No. 185. For divorce, etc., on the ground of adultery, etc 514 No. 186. For divorce, etc., on the ground of adultery, custody of children, etc 515 No. 187. For divorce, on the ground of cruelty, etc., upon verdict of jury 516 Petition . No. 188. For alimony 2'>enclente lite, etc 518 Order. No. 189. Of reference as to alimony, etc 519 Report. No. 190. Of master as to allowance of alimony 520 Order and decree. No. 191. Confirming master's report as to alimony 521 No. 192. Interlocutory, for alimony, etc., pendente lite 521 No. 193. For permanent alimony 523 Bill. No. 194. For separate maintenance 527 Order. No. 195. Of reference to master, as to separate maintenance, allowance, etc 530 Report. No. 196. Of master, as to separate maintenance, etc 530 Decree. No. 197. For separate maintenance, etc 533 Bills. No. 198. To quiet title, and to cancel deed 540 No. 199. To quiet title, and to set aside tax deed 541 No. 200. To quiet title, and to set aside contract, etc 544 Deci'ee. No. 201. To quiet title, and to cancel deed 546 Bill. No. 202. By heirs at law to set aside a will 551 . Orders and decrees. No. 203. Directing issue of fact for a jury to try validitv of a will ■ ' 553 No. 204. Setting aside a will : 553 Bill. No. 205. For ne exeat republica 558 No. 206. Affidavit to 559 Order. No. 207. Of judge granting a ne exeat, etc 560 No. 208. Of master granting 7ie exeat, etc 561 Bills. No. 209. By landlord against tenant to restrain waste 566 INDEX. 705 Forms. FORMS — Bilh — Continued. No. 210. To remove trustee, etc ,571 No. 211. For appointment of new trustee, etc 573 No. 212. For a mechanic's lien on written contract 592 Petitions. No. 21o. For mechanic's lien on verbal contract ,594 No. 214. For mechanic's lien on implied contract 596 Answers. No. 215. Of owner defendant to a bill or petition for mechanic's lien 600 No. 216. Setting up a discharge of mechanic's lien 602 No. 217. Setting up another lien in mechanic's lien suit 602 OrossMll. No. 218. By a defendant to mechanic's lien suit 604 Decrees. No. 219. Allowing mechanic's lien, and for sale 607 No. 220. Allowing mechanic's lien, reserving adjustment, etc. . . 608 No. 221. Allowing mechanic's lien, and adjusting conflicting claims 608 Suggestion. No. 222. Of damages on dissolution of injunction 617 Orders. No. 223. Where defendant appears, or is brought into court by attachment and admits his contempt, that he put in answer, etc 618 No. 224. For commitment of defendant for disobeying order to put in answer 618 No. 225. In case of contempt for not answering, where defend- ant denies his contempt, directing interrogatories. . . . 619 No. 226. Convicting defendant of contempt after lus examina- tion on interrogatories 620 No. 227. To refer second or third answer on old exceptions 621 No. 228. For sheriff acting as sergeant-at-arjas 621 No. 229. For sequestration 622 No. 230. Of reference where defendant does not submit to an- swer exceptions 622 No. 231. For further answer after report of master 623 No. 232. For attachment on third answer being held insufficient 623 No. 233. For examination of defendant on interrogatories on third answer being held insufficient 623 No. 234. For leave to amend bill after a plea to part is allowed. . 624 No. 235. Of reference to master 624 No. 236. Of reference of a plea of former suit pending 625 No. 237. Directing plea to stand for an answer 625 No. 238. Allowing complainant to dismiss his bill 625 No. 239. To pay money into court 625 Decree. No. 240. Final, dismissing bill at hearing 626 Order. No. 241. For cause to stand over, to add new parties 626 No. 242. For cause to stand over, to supply proof 626 Interrogatories. No. 243. For examination of a party in contempt, etc 627 Answer. No. 244. To interrogatories for examination of a party in con- tempt, etc 627 Report No. 245. Of master upon exceptions to answer, etc 628 45 706 INDEX. Forms of Constituent Parts of an Original Bill — Injunctions. FORMS — Continued. Ansicer. No. 346. Further, after exceptions and amendment 628 Btport. No. 247. Of master as to sufficiency of defendant's examination . 629 Exceptions. No. 248. To master's report on exceptions to answer 629 Agreement. No. 249. To submit the cause on written arguments 630 Abstract. No. 250. Of pleadings and evidence 630 Brief and Points. No. 251. To be used on the hearing 631 FORMS OF CONSTITUENT PARTS OF AN ORIGINAL BILL — (tice Bills in Chancery.) GENERAL PRINCIPLES OF EQUITY PLEADING. Nature of, etc 32-34 GUARDIAN AD LITEM — Answer by 144 Form of 150 Rules of Supreme Court of U. S. relating to HABITUAL DRUNKENNESS — (sfc Drunkenness — Divorce.) HEARING — Course of proceeding 191-193 Of a case out of its order 193 Original and cross-bill heard together 193 Effect of former orders on 194 Of demurrer ... 107 Of supplemental bill 215 Of bill of revivor 237 Of bills of interpleader 290 Of divorce suits 472-512 IDIOTS, LUNATICS — Commencement of suits by 38 IMPERTINENCE — Nature of 52, 160 Form of exceptions to answer for 162 Form, of order expunging from answer for 163 IMPOTENCY— At time of marriage a ground for divorce 486, 488 Farm of hill for divorce on that ground 489 INFANTS — Bond for cost on commencement of suit by 38 Answer of by guardian ad litem 144 Form of ansicer by guardian ad litem 150 INFANCY— Form of plea of, withorit a prochein ami 121 INFORMATION — Commencement of suit by 35 INJUNCTIONS — Statute of Illinois relating to 612-617 Judges authorized to grant 612 Master in chancery may grant in absence of judge 612 Notice of application for 612 To stay judgments where had 612 INDEX. 707 InsuflBciency — Interrogatory. INJUNCTIONS — Continued. Shall operate as a release of errors 612 Judgments before J. P 613 As to part of a judgment 613 Complainant to give bond 613 Approval of 618 To be filed before writ issues 614 Assessment of damages on dissolution 614 Form of suggestion of. 617 Violation of, contempt 614 Motion to dissolve 614r-615 In vacation 614 For want of equity 615 Affidavits upon 615 Continuance of 615 Depositions on hearing of 615 Same may be read on final hearing 616 Effect of an appeal on 616 Further bond on continuance 616 When granted on Sunday 616 Form of lyrayer for in a hill 73 Where bill of interpleader is filed 288 Form of order for on interpleader hill 289 In divorce suits 510-511 In suits for separate maintenance 527 INSUFFICIENCY— Exceptions to answer for 158 Form of 162 INTERLOCUTORY— (s€e Decrees, etc.) INTERPLEADER — In partition suits 437 In suits for dower 472 INTERPLEADER, BILL OF — Nature of, and when proper 279-282 Form of hill 283 Affidavit of non-collusion 283 Form of hill 284 Form of affidavit to he annexed 285 Defenses to 286 Demurrer 286 Form of, for want of affidavit of non-collusion 287 Form of, not showing any claim in defendant 287 Form of, not shoicing any right in complainant 287 Answer 287 Form of order for injunction upon 289 Taking bill as confessed '. 289 Hearing and decree 290-291 Costs upon 291 Form of interlocutory decree directing a reference 292 INTERPRETER — May be sworn in taking depositions 182 INTERROGATING PART OF A BILL— Nature of, etc 55 Form of. "^2 Rules of Supreme Court of U. S. relating to 643-644 INTERROGATORY— Form of laM, in taking testimony for U. S. court 653 T08 IKDEX. Introduction — Mechanic's Lien, Proceedings to Enforce. INTRODUCTION — Of a bill in chancery 41 Form of. 69 ISSUES TO BE TRIED BY JURIES — Form of order directing 190 In divorce cases 513 Form of order directing 513 To try validity of will 553 Form of order directing 558 OOINDER OF PARTIES — Nature of, etc 64-65 Misjoinder of 65 JURISDICTION — Plea to 115 Forni of. 130 In divorce suits 485 •JURISDICTIONAL CLAUSE — In a bill in chancery 54 Form of 73 JURY— Trial of issues of fact by 188-191 {See Feigned Issues — Trial by Jury, etc.) Trial by, in divorce suits 513 In suits testing validity of a will 553 LANDLORD AND TENANT — Form of bill hy landlord to restrain waste, etc 566 LIENS — {see Mechanic's Lien.) Priority of, in creditors' bills 403 LIMITATIONS — Form of plea of statute of. 123 Of mechanic's lien 581 Of sub-contractor's lien 590 LOST INSTRUMENT — Specific performance of contract, lost 333 MAINTENANCE, SEPARATE — When granted 525-537 Grounds for 535^536 Proceedings to obtain 537 Where commenced 537 The bill 537 Injunction, when allowed 537 Forvi of bill for 537 Defenses to 539 Practice in, and decrees 539 Reference to master 539 For^n of order of 530 Form of report of. 530 Amount of allowance 531-533 {See Alimony.) Modification of 533 Form of decree for 533 MECHANIC'S LIEN, PROCEEDINGS TO ENFORCE — Nature of 575 Where a lien is given 576-579 Suits by administrators, etc 577 Estate to which it attaches 577 INDEX. ;00 Mechanic's Lien, Proceedings to Enforce. MECHANIC'S LIEN, PROCEEDINGS TO ENFORCE — Continued. Extent of lien 577-579 Contract on which it is founded 579-580 Implied contracts 579-580 Where owner fails to comply with contract 580 Materials furnished contractor ,580 Discharge of ". 580-581 Limitatiops of 581 As against the owner 581 As against creditors, etc 581-582 Incumbrances, and other liens 582 Rule for adj usting 582-583 Conflicting claims 583 Where claims are not due 584 Parties may contest each other's rights 584 Fraudulent incumbrances, etc .'584 Delay in one case not to delay others 584 Sub-contractor's lien 585 Notice to be given owner 586 Form of 586 Copy of contract to be served 586 Notice, etc., to be filed with circuit clerk, etc 586 Owner may retain money to pay, etc 587 Statement of persons employed, sub-contractors, etc., to be furnished owner 587 When it may be enforced 587 Judgments before justice of the peace 588 Owner may file bill, etc 588 Proving claims under 588 Contractor may give bond, etc 589 Where contractor fails to complete contract 589 Limitations of 590 Bills and petitions 590-592 Parties to 591 Forms of. Bill for, on written contract 592 Petition for, on verbal contract 594 Petition for, on implied contract 596 Proceedings upon 598 Summons 598 Notice by publication 598 Docketing case on chancery side 598 Amendments 5^)9 Answers ^^^ Forms of. By owner 600 Setting up discharge of lien 602 Setting up another lien 602 Cross-bill 604 Form of 604 Decrees, etc., and sales 606 Where a part of the premises can be sold 606 Sales, how made ; 606 Execution allowed for balance 006-607 Forms of decrees. AUotcing lien, and for sale of premises 607 Allowing lien, where other proceedings nre pending, etc 608 Allowing lien, where there are severed liens, and a mortgage to he adjusted 608 Costs ''^ ^ 710 INDEX. Misjoinder — Parties. MISJOINDER — Of parties to a bill 65 MORTGAGES — (see Foreclosure ov Mortgage:?, Redemption, etc.) MULTIFARIOUSNESS — Nature of, and what is 48-51 Form of demurrer, on that ground Ill NE EXEAT — Nature of, and when proper ? 555-557 Form of bill for 558 Affidavit to 559 How obtained, etc 559 By whom granted 559 Bonds to be given, etc 559 Order directing clerk to issue writ 560 Form, of, by a judge 560 Form of, by master in chancery 561 Proceedings upon 561 The writ .561 Defendant's bond 561 Surety may surrender principal 561 Proceedings in court 562 Quashing writ, etc 563 NOTICE — {see Depositions, Publication, etc.) NORTHAMPTON, ETC., TABLES — («ee Portsmouth or Northamp- ton Tables.) NUNC PRO TUNC — Decrees, clause in 200 OATH — Waiver of, to an answer 141 Of commissioners to make partitions 443 Form of 444 Of commissioners to assign dowei 474 Form of... 474 {See Affidavits.) OBJECTIONS — To master's report 183-186 Form of 185 ORAL TESTIMONY- To be heard on a hearing 186 ORDERS — {see Decrees and Orders.) PAROL CONTRACTS— May be specifically performed 324 PARTIES — To bills generally 61-65 Who should be made 62-63 How described 63 Persons under disability 63-64 Form of demurrer for want of Ill Form of 'plea of want of 122 To a supplemental bill 205 To bills in nature of bills of revivor 242 To bills of review 254-255 To bills for specific performance 325-326 To bills to redeem 254-257 Complainants 254-256 Defendants 256-257 INDEX. 711 Partition Suits. PARTIES — Continued. To bills to foreclose mortgages : 37:J-375 Complainants 372-373 Defendants o7.3-375 To bill of strict foreclosure 'SS^ To a creditor's bill 400-403 Complainants 400-401 Defendants 401^02 To partition suits 42G^t28 Complainants or petitioners 42(5-427 Defendants 427-428 Unknown parties in partition suits 428-436 Process against 436 To suits for dower 4(57_4(}8 Unknown defendants in dower suits 468, 471 In proceedings to enforce mechanic's lien r)91-592 Unknown defendants 81 How made parties 81 Publication as to 81 Rules of Supreme Court of U. S. relating to nominal parties. . . . 646 PARTITION SUITS — Nature of, and bow instituted 423-426 Illinois statute 42.5-426 Parties to 426-428 Complainants or petitioners 426^27 Defendants 427-428 Unknown 428 Bill or petition 428 Frame of 428 Forms of. Bftween heirs, subject to dower 428 Bill for 431 Bill for partition and dower 433 Petition for partition 435 Affidavit to 435 PiocesB of appearance in 436 Summons 436 Unknown defendants, notice to 436 Absent defendants, notice to 436 Service by copy 436 Interpleader 437 Liens on shares of part owner 437 Decrees for partition 437-439 Appointment of commissioners 438 Allotment of dower and homestead 438 Costs apportioned 439 Forms of Decrees for partition 439-440 Decree for partition and dower 441 Proceedings by commissioners 443 Required to take an oath 443 Form of oath 444 Duty of commissioners 444 Jieport of 445 Form of, makiny partition. 445 Form of, that prenmen not decisable 446 Fo7-m of decree confirming 447 Exceptions to report of commissioners 448 Decree of sale 448-449 712 INDEX. Partnership Matters, Bills Relating to — Pleas. PARTITION SUITS— Continued. Dower interest provided for 449 Interest of unknown owners 449—450 Fiyrni of 450 Exceptions to report of sale 451 Confirmation of sale 451 Form of decree confirming sale 452 PARTNERSHIP MATTERS, BILLS RELATING TO — Where a dissolution will be decreed 338-340 Account between partners 340-341 Appointment of a receiver 341-342 When appointed 342 Forms of bUls. For a dissolution, and for injunction 342 Affidavit to, to obtain injunction 345 For an account, and for injunction 345 Farms of orders and decrees. Order appointing a receiver 347 Decree for an account 348 Mnal decree for dissolution and account 348 PETITIONS — Setting aside decree when defendant is not personally notified . 91-93 Form of, for leave to amend hill after replication 167 Form of for production and inspectio7i of papers, etc 175 For leave to file supplemental bill 210 Form of 210 For leave to file bill of review 256-257 Form of, for errors of law 257 Form of, upon discovery of new matter 258 To perpetuate testimony 300-304 Form of " 301 Form of, for partition 435 For dower 466 et seq. Form of, by widow 468 By husband 469 By heirs 470 Fo7'?n of, for alimony, pendente lite 518 For mechanic's lien — (see Mechanic's Lien.) Form of, on verbal contract 594 On implied contract 596 PLEADING IN EQUITY — General principles of 32-34 PLEAS — {see Pleas to a Bill.) To a supplemental bill 212 To a bill of revivor 233 To a bill of review 262 To bills of discovery 274 To a cross-bill 315 Forms of. Commencement and conclusion of 119 To part of bill 119 In abatement to jurisdiction of court 120 Of coverture of complainant 120 Of infancy without a prochein ami 120 That defendant never was administrator 121 Alien enemy 121 Want of proper parties 122 Former suit pending 122 INDEX. 713 Pleas to a Bill — Premises, or Stating Part of a Bill. PLEAS — Farms of— Continued. Statute of limitations 123 Release, supported by answer 123 Stated account 124 To a part, with answer to residue 125 To a supplemental bill 213 To a bill of review 265 To a bill of discovery, action pending, etc 275 To a bill of discovery, would betray professional confidence. . . 276 Rules of Supreme Court of U. S. relating to 641-642 PLEAS TO A BILL — Nature of 113-114 When proper 114 To the jurisdiction 115 To the person 115-116 To the bill 116 In bar 116 Frame of 116-119 Foi-ms of 119 Commencement and conclusion of 119 To a part of a bill 119 In abatement to jurisdiction of the court 120 Coverture of complain'ant 120 Infancy, mthout prochein ami 121 That defendant never was administrator 121 That defendant is an alien enemy 121 Want of proper parties 122 Former suit pending 122 Statute of limitations 123 Of release, irith answer in support of 123 Of stated account 124 Plea to part and answer to residue 125 Signing of 126 W hen to be sworn to 126 When to be filed 126 Demurrer to, not allowed 107-127 Replication to 127 Amendment of bill after 127 Demurrer to, not proper 127 Argument of 127 Effect of allowing 128-129 Saving benefits of, to the hearing 129 Allowing to stand for an answer 130 Overruling of 130 When to be supported by answer 130-132 PORTSMOUTH OR NORTHAMPTON TABLES — For determining value of annuity, etc 4S0 PRAYER — For relief in a bill 56-58 Form of. 1^ For process in a bill 58-'»9 Forms of. 3^ For summons ^3 For subpoena '3 For injunction J3 Of a supplemental bill ■•"• PREMISES, OR STATING PART OF A BILL— Requirements of , generally ^^nn Form of. "0 714 INDEX. Privity — Replication. PRIVITY— Form of demurrer for want of. Ill PROCESS FOR APPEARANCE — Summons 74 Service and return of 75-77 How served 75 The return 75-77 Notice by publication 77 Time of 77 Form of affidavit for 78-79 Non-residence of defendant — residence not known 78 Defendant cannot be found 78 Defendant is concealed 79 Service by copy of bill 79-80, 436 Form of notice to be served with 80 Form of affidavit of service 80 Unknown persons as defendants 81 Attachment to compel answer 81 How obtained 83 Form of affidavit to obtain 84 Form of order for 84 Attachment with proclamation 84 Commission of rebellion 85 Seargeant-at-arms 85 Sequestration 86 In partition suits 436 In mechanic's lien suits 598 To a supplemental bill 211 Upon cross-bill 313 In the U. S. courts of equity 637 Service of 636-637 PROCHEIN AMI — Rule of Supreme Court of U. S. relating to 656 Required to give bond for costs 38 PRO CONFESSO — {see Taking Bills as Confessed — Default, etc.) PUBLICATION — [see Process of Appearance.) PUIS DARREIN CONTINUANCE — Form of cross-bill in nature op plea of 310 QUIET TITLES— (see Bills to Quiet Titles.) RECEIVER — Appointment of, in suits between partners 341-342 When appointed 342 Form of order appointing 347 Form of order appointing in creditor's suit 419 RECRIMINATION — In divorce suits 510 REDEMPTION— (see Bills to Redeem.) RELEASE — Form of plea of, supported by answer 133 RELIEF — Prayer for in a bill 56-58 Form of. 73 REPLICATION — Nature of 170 Within what time to be filed 170-171 Issue made by 171 INDEX. 713 Report — Revivor, Bill of. REPLICATION — Continued. EflFect of filing .' 173 Withdrawing 172 Form of 172 To answer to bill of revivor 235 To a plea 127 Rules of Supreme Court of U. S. relating to 649 REPORT— Of commissioners to make partition 445 Form of, ichere partition was made 445 Form of, where premises not susceptible of division 446 Form of, of master in chaticery, of evidence 184 Form of, of master as to alimony, etc 520 Form of of master as to separate maintenance 530 Form, of, of master upon exceptions to answer 628 Form of, of master as to svfUciency of defendant' s examination . . 629 REVIEW, BILLS OF — Nature of, and wlien proper 249-254 Where they lie 249 For error of law 251-253 For newly discovered evidence §53-254 Parties to 254-255 Leave to file 255-258 Performance of decree 256 Petition for 256-257 For7n of for errors of law 257 Form of, for neicly discovered evidence 258 Within what 'time to be brought 258-259 Form of order of leave to file 259 Form of bill 259-260 Form of, upon errors of law 260 Form of, on discovery of new matter 261 Form of affidavit to 262 Defenses to 262-266 Demurrer 264-265 Form of 266 Answer 265 Form of plea pj 265 REVIVOR, BILL OF — Nature of 225 When proper 226-228 Before decree 226-227 After decree 227-228 Against whom to be filed 228 Before decree 228-229 After decree 229 Frame of bill 230 Must pursue the original bill 230 ?'orm of, before decree 230 Form of, after decree 331 Defenses to 233 Demurrer 233 Plea 2:33-234 Answer "' X^'e Replication ■^^ Order to revive t~^ Form of -^^ Hearing .• o.U_?xQ Effect of 238-339 716 INDEX. Scandal and Impertinence — Statute of Frauds. REVIVOR, BILL OF — Continued. Bills in the nature of. Nature and uses 240-242 Parties to 242 Frame of 242 Form of. 243 I>efenses to, and proceedings upon 245 Revivor and supplement. Nature of, and when proper 246 Practice upon 247 Form of 247 Rules of Supreme Court of U. S. relating to 646-647 SCANDAL AND IMPERTINENCE — Of what it consists, in a bill 51-52 Exceptions to a bill for 95 Form of 95 Exceptions to an answer for 160-162 Form of 162 Form of order expunging 163 Rules of Supreme Court of U. S. relating to 639-640 SEPARATE MAINTENANCE — (sc